(Snrnf U Ham ^t\^nxi\ Slibtary Cornell University Library KF 8935.P55 1859 V.1 A treatise on the law of evidence, 10th E 3 1924 020 173 237 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020173237 LAW CATALOGUE. BANKS & BROTHERS, 144 Nas§aii §treet, New Tork, and 475 IBroadviray, Albanf. 18 6 0. ADAMS ON EJECTMENT. Fourth EdUion. Price $5. A Treatise on the Principles and Practice of the Action of Ejectment and the resultii>g Action for Mesne Profits, by John Adams, sergeant at law. The Fourth Ameri- can from the London Edition, with Notes of the Decisions made by the Supreme and Cir- cuit Courts of the United States, and by the Courts of the several States, whose decisions have been reported; together with the statutory provisions, in relation to those actions, contained in the Revised Statutes of New York ; and Precedents of Entries, Pleadings and Process adapted thereto, by John L. Tillinohast, counselor at law. To which are added Annotations and References to the most recent American Decisions, by Thomas W. Clbbkb, counselor at law. Carefully collated, and made to correspond with the latest London edition, corrected by the author ; together with additional Notes and Decisions in the Courts of the several States. By "William Hosan, counselor at law ; and continued by T. "W. "Waterman, embodying all the American and Enghsh decisions to the present time. AI/IiEN ON SHERIFFS. Price $3. THE AMERICAN CHANCERY DIGEST. Third Edition. Three 7oU. Price $15. Being an Analytical Digested Index of all the Reported Decisions in Equity of the United States Courts and of the Courts of the several States, to the present time, with Notes and a copious Index ; also an introductory Essay, comprising an historical sketch til the Court of Chancery ; an account of the nature, powers and functions of the Court, and the organization and equity jurisdiction of the Court of the United States and of each oi the States of the Union. By Thomas iW. Waterman, of the New York Bar. ANTHON'S NISI PRIUS REPORTS. Seconds/Edition. Price $4. The Law of Nisi Prius, being Reports of Cases Determined at Nisi Pbius, in tbb Supreme Court of the State of New York ; with Notes and Commentaries on each case. 2d ed., with many additional cases never published before. Judges presiding : Chief Justice, James Kent ; Justices, Tan Ness, Thompson, Spencer and Yates. Mr. Anthon has been equally well known as an eminent and successful practitioner, and distinguished law writer, for the last forty years. His cotemporaries, many of whom are now dead, have been men who have honored and adorned the highest walks of the pro- fession, both on the bench and at the bar. This volume of Nisi Prius Reports was always much admired ; and the importance and value of the cases contained in it immediately caused it to be extensively cited and quoted in the opinions of judges and in law works. The present edition was carefully revised and annotated by Mr. Anthon himself. 1 BANKS & BROTHERS' AKCHBOI-D'S ClVIt PtEABIlVG. Second Edition. Price $4. ARCHBOIiB'S P£,EABING ANB EVIBENCE. Seventh Edition. Two Vols. Price $12. "The first part of this work is devoted to criminal practice; and the second part to the discussion of the several crimes, the indictment for each offence, and the requisite evidence. It will be found to embrace the entire field of Criminal Law; every proceeding, from the arrest of the offender to his final punishment, being minutely detailed with forms and dureo- tious for every supposable case. " Arohbold has been a standard authority for the last half century, fourteen successive English and half as many American editions, Show how it has been appreciated. " A very considerable period of time and a great deal of labor have been expended upon this edition. Most of the notes have been entirely re-written ; and all of them have been re-modeled and re-arranged. A thorough analysis of each subject has been made, which, with a very full index to each volume, it is thought will furnish all needful facilities for ref- erence. The matter has been a good deal condensed, by omitting whatever seemed theo- retical rather than practical, by dispensing with such of the English statutes' as have no bearing upon American law or practice. The notes in their present form contain, however, a large amount of new matter, and several subjects are introduced which were not treated in the former edition. The authorities have been carefully re-examined, and all of the re- ported, and numerous manuscript cases, in each of the several states, down to the date of publication, added. The criminal statutes of sixteen of the states have been digested and distributed under the appropriate heads, together with such English statutes, the construc- tion of which, from their similarity to our own, seemed likely to aid the American practi- tioner. A concise outline of all the more important cases cited by Mr. Archbold has also been given ; thus presenting, in a convenient and accessible form, all of the leadmg English criminal cases." BARBOUR'S CHANCERY REPORTS. Three Vols. Price $15. Reports of Cases Arsued and Determined m the Court of Chancery op the State of New York, from 1845 to 1847. By Oliver L. B.iRBOUR, counselor at law, successor ot Paige, and in continuation of Johnson, Hopkins and Paige. These decisions are considered the ablest and most rehable of any in our country, R. H. Walworth, Chancellor. BARBOUR'S CRIMINAL TREATISE. Second Edition. Price $5. The Maoist iate's Criminal Law: A Practical Treatise on the Jurisdiction, Duty and authority of the Justices of the Peace in the State of New York in Criminal Courts. Containing, also, a Summary of the law relative to Crimes and Punishments, with an Appen- dix of Forms of Proceedings. By Oliver L. Barbour, counselor at law. Second edition. Much enlarged, with Notes and References and additional forms. The second edition of Barbour's Criminal Treatise has been carefully revised by the dis- tinguished author, with imjfortant additions. It is too well known to require from us an extended notice. Suffice it to say, that it is an elementary work of great merit, and that altiiOEgh prepared nlore especially iter tlia state of New York, it will be found almost equally ustfijl in every state in the Union. BARBOUR'S LAAV OF SET-OFF. Price $2. LAW PUBLICATIONS. 3 BARBOUR'S SUPREME COURT REPORTS. Twenty-fov/r Vols. Price $84. Eepobts of Cases, in Law and Equity, m the Supeemb Couet of the State of Khw York, under the Now Constitution, 1816. By Olitee L. Baeboue, counselor at law. BRIGHT'S HUSBAND AND WIFE. Two Vols. Price $10. A Teeatisb on the Law of Husband and Wife, as eespeots Pbopeett. Partly founded on P.oper's Treatise, and comprising Jacob's Notes and additions thereto, by__JoHif Edwaed Beight, Esq., of the Inner Temple, barrister at law. With copious Notes and Ref- erences to the American Decisions, and also an Appendix, containing the Statutes of every state in the Union, in relation to the rights and property of females before and after mar- riage. By Ralph Lockwood, counselor at law. [From the Ameeican Law Journal.] The last edition of Roper's Husband and Wife was that of 1836; The English Law MagazlDe and Sepoiter •f May, 1S49, observes that the " want ol a new edition had for many years been felt by the profession." The progress of the United States in wealth, of society in refinement, and of judicial and legislative policy to secure property to wives, have increased the want of a new publication here, embracing the recent de* eisions on this interesting relation. We have not had, leisure to examine Into tho merits of the notes by the American editor, but of the work of Mr. Bright we can cheerfully add our testimony to that of the Engliak Reviewer that " for completeness and soundness it is liliely to become the text-book upon the law of hus- band and wife." CAINES' REPORTS. Third Edition. Three Vols. Price $12. New Toek Teem Repoets of Cases Aegued and Detbemined in the Supeemb Court of that State. Third edition just published, containing Notes and References to all the American and English decisions, to the time of publication, by WATEEMAJSf ; with correc- tions and additions. By Geoege Gaines, counselor at law. Gboege Gaines, Esq., was the first reporter of the decisions of the Supreme Court of the state of New York, regularly appointed as such. The names of the honorable judges who presided iu this court, during the period above stated, were, Morgan Lewis, James Kent (afterwards Chancellor of the state), Jacob Radcliffe, Brockholst Livingston, Smith Thomp- son (the two last named gentlemen were subsequently appointed judges of the Supreme Court of the United States), Ambrose Spencer and Daniel D. Tompkins. A more able and independent Judiciary never existed at any one period, m any court of the United States. CALIFORNIA PRACTICE. Price $3 50. COMSTOCK'S REPORTS. Vols. 1, 2, 4. Price $10 50. Reports of Oases Aegued and Detbemined in the Court of Appeals of the State of New York. By Gboege P. Comstook, Esq., State Reporter. Judges' names: Freeborn 6. Jewett, Greene 0. Bronson, Addison Gardner, Charles H. Ruggles, Samuel Jones, William B. Wright, Thomas A. Johnson, Charles Gray, Ehsha P. Hurlbut, Ira Harris, Daniel Pratt, Henry W. Taylor, Selah B. Strong, Daniel Gady, ^Yilliam H. Shanklaud, James G. Hoyt. CONNEC'B'ICUT DIGEST. 974 Pages. Price $7. A Digest of the Reported Decisions of the Superior Court, and of the Supeemb Court of Errors of the State of Connecticut, from the organization of said courts to the pres- ent time. By Thomas W. Waterman, counselor at law. [From the IlAitTFOEn Daily Gottbakt] Banki & Brothers, law pnblish(!rs, 144 Nassau street, New York, have issued a handsome vohims entitled '* A Bigeiit of the Reported Decisions of the Superior Court, and of ttie Supreme Court of Errors of the State of Connecticut, from the organization of said courts to the present time, by Thomas W. 4 BANKS & BROTHERS' "WatenHan, Coun&ellor-at-Law." These cases cover sixty-eight years, beginning with 1789, and cloiinff ■with 185T. The Digest includes Kiiby, Eooi, five volumes of Day's Kepoi-ts, and twenty-four volumes of Conneclicut Reports. Mr. Waterman, the autbor of the Digest, seems to have done his work with his usual fidelity. He says he has verified the page of every reference to the Connecticut Eeports after the matter was in type. He has avoided the practice often followed by compilers, of putting several distinct matters under one general head, and has assigned each subject a title, to catch the eye in the table of contents, and direct the inquirer. Mr. Waterman is a practiced hand, and knows just what the lawyer wants, and what he does not want. Though a New York man, he evinces a fumiliarity with Connecticut law, and Connec- ticut history and practice, that leads us to believe his work will be a favorite with Connecticut men. Any business man who desires to know what are the laws of Connecticut, other than those in our statute book, should be referred, unhesitatingly, to this Connecticut Digest, [From the New Tobk Commeecial Adveetiseb.] Connecticut has the honor to be the first state of the Union in which judicial decisions were reported. The first American law report was edited by Mr. Kirby, and printed at Litchfield, in 17S9. Boot's Con- neoticut Eeports were published ten years later, and they were followed by Day's Eeports, a series which was continued at intervals until 1858, when the present Eeporter of the Connecticut decisions, Mr. Matson, commenced his useful labors. There are now thirty-two volumes of Connecticut Eeports in all, contain- ing about three thousaud five hundred cases, and the substance of these has been neatly epitomized, arranged and inde-xed by Mr. Waterman, in one stout volume of 974 pages octavo. At the end of each case of special significance or importance, he has noted whether it was in reversal or alErmance of the decision of the court below ; he has also noted the cases which have been overruled, denied or doubted. The facilities for refer- ence to every part of the volume are ample, and we consider it one of the best arranged Digests of Reports we have ever esamined. To all Connecticut lawyers, it will, of course, be indispensable, and to lawyers in other states it will be scarcely less useful. It is justly remarked that " the Connecticut decisions are among the cited authorities of every text-book; and no trial of any magnitude can take place, in which very mate- rial aid may not be derived from precedents drawn from this source." It is one of the best evidences of the esteem in which the Connecticut Keports are held, that some of them have been reprinted in England. CO?(NECTICUT KEPOKTS Second Edition. . Fweniy-one Vols. Price $105. Reports of Cases Argued and Determined in the Supreme Court op Errors op the State of Connecticut, from 1814, inclusive ; prepared and published in pursuance of a Stat- ute Law of the State. Second edition, corrected, with Notes and References to the several State Reports. By the Hon. Thomas Day. No lawyer should be without these reports. The railroad cases alone in them are worth the price of the set. They comprehend a period of seventy years, or, in other words, almost our entire existence as an independent people. Tljey thferefore contain precedents for all the various exigencies which have from time to time arisen since the origin of our govern- ment. Tlieir utility and the high appreciation in which they are held, are shown by the frequency of their citation, not only in all the law books of the day, but in cases on trial, and in the written opinions of judges. COWEN'S CIVIL, TREAT ISE. Fowrih Edition. Price $5. A Treatise on the Civil .Jurisdiction op Justices op the Peace op the State op New York. By Esek Cowen, counselor at law. Fourth edition, revised by "William Tracy, counselor at law. COAVEN'S REPORTS. Nine Vols. Price $45. Reports op Cases Argued and Determined in the Supreme Court por the Trial op .Impeachments and the Correction of Errors of the State of New Tork, from 1823 to 1828. By EseK Cowen, counselor at law, and successor of Johnson. CROCKER ON SHERirFS. Price $5. A Treatise on the Duties op Sheeipps, Coroners and Constables, with Practical Porms. By John G. Crocker, counselor at law. This is a thorough and complete treatise upon the powers and duties of sherififs and other officers. It is a modern worlc, designed especially for the state of New Tork, with a full .jjitation of authorities to the time of publication. It is elementary and practical. Every LAW PUBLICATIONS. 5 sheriff, coroner and constable, in the state, ought to have a copy ; and magistrates will fisd it extriiinely useful and convenient. Lawyers will have it, as a matter of course. ©AKT'S L.A\V AND PKACirlCE OF VENDORS AND PUJKCMASEaS OF KJBAl. JESTA'JTE. Price $5 50. A COJirEXIiK-it OF THE LAW AND PRACTICE OF VeNDOES AND PURCHASERS OF EeAL Estate. By J. Henry Dart, of Lincoln's Inn, barrister at law. With Notes and References to Amerioap Decisions, by Thomas W. Waterman, counselor at law. BAXrON'S SURBOGATr;. Third Edition in Press. DEAN'S MEBICAIi JURISPRUDENCE. Second Edition. Price $3 50. Pkinoiples op Medical Jdrisprudbnce designed for the Professions of Law and Medicine. By Amos Dean, counselor at law and Professor of MedioalJurisprudence in the Albany Medical College. BENIO'S IS.EPOIIT?. Five Vols. Price $20. Reports of Cases Argued and Determined int the Supreme Court, and in the Court for the Correction of Errors of the State of New York, from 1845 to 1848 inclusive. By HiEAU Denio, Esq., successor of Hill, and the continuation of Johnson, Cowen and Wendell. DUNEAP'S PAEEY'S AGENCV. Fourth Edition. Price $5. A Treatise on the Law of Principal and Agent, chiefly with reference to Mer can tile Transactions. By William Paley, of Lincoln's Inn, Esq., barrister at law. With' considerable additions by J. H. Lloyd, of tlie Inner Temple, Esq., barrister at law. Fourth American edition, with extensive additions, referring to and embracing all tlie cases, both English and American, by John A. Dunlap, Esq., counselor at law, and brought down to tlie present time, with very full notes to English and American Decisions, by Thomas W. WATBRM.iN, Esq., counselor at law. This edition by Paley and Lloyd by Dunlap will be found, in comparison with othef treatises on this subject, to be a complete substitute for all of them, containing several thousand cases not referred to by any other American autlior ; it is, in fact, an embodiment of all the decisions on the law of Principal and Agent. [From the New Yoke Comueegiai. iLDVBaTisEB.] This is the fourth Araeric&n edition of Paley's admirable work oa Agency, which has been universally recognized as the leading aathority amon? all the text-books on that subject, since Its first appe^trance in 18U. Ml-. Justice Story constantly refers to it in his ComrnentarieH, and Mr. Hammond's Treatise is considered a mere rechaiijfe of Paley's work as edited by Lloyd. Two previous editions were greatly enlarged by the notes of Lloyd in England, and of Dunlap in this country, and Mr. Waterofian has now made numerous important addenda, introducing notes of more than eighteen hundred relevant cases de- cided. during the nine years that have elapsed since the publication of the third edition by Dunlap. Mr. Waterman's editorial task has been performed with the same thoroughness and ability that characterized his excellent clitions of Arohbold's Criminal Plea liag^ and Evidence, Adauis on Kjectraent, Dart on Vttn- dors, Eden on Injunctions, v^c, and his valued works on New Trials, and on the Civil Jurisdiction of Just- ices of the Peace, He displays the most indefatigable industry in research, and the utmost impartiality and discrimination in the application of new decisions and judicial dicta to the modification or support of the te.xt. The original work, with all its addUions by previous editors, has been greatly enriched by his labors, and may be deemed a complete digest of the lav/ of principal and agent — a branch of juriBprudence which is here of the highest importance and most frequent utility. The elaborate opinion of the New York Court of Appeals, in the celebrated case of the New York Mechanics' Bank against the New Haven Railroad Company, is given in full in the appendix. 6 BANKS & BROTHERS' EDW^ARDS? CHANCERY KEPORTS. Four Vols. Price $20. Reports of Chancery Cases decided in the First Ciectjit of the State of Ne"w Tork by the Hon. "William T. ilcCouiij Yice-Chancellor. By Charles Edtvards, counselor at law- EDW^ARDS OIV RAILMEIVTS. Price $4 50. A Treatise on the Law of Bailments. By Isaac Edwards, Counselor at Law. Chapter 1: On Bailments. — Chapter 2: On Deposits. — Chapter 3: Gratuitous Commissions ©r Mandates. — Chapter 4: Gratuitous Loans. — Chapter 5: Pledges or Pawns. — Chapter 6 : Contracts for Hire. — Chapter *7 : Of Innkeepers. — Chapter 8: Common Carriers; Carriers of Passengers. The above chapters are very full and complete. [From the New York Evknino Post.] "The mmt perfect legal treatise in the English language was written upon the Law of Bailinents, many years ago, by sir AVilliam Jones. No subsequent writer has been able to do more than apply the principles there laid down, with incomparable clearness and elegance, to the new conditions developed by the progress ef human society. That was all that Judge Story was able to do for his generation, and that is all that Mr. Edwards has attempted for his ; unlike his immediate predecessor, however , con fiping himself exclusively to cases arising under the common law, without reference to thecivillaw. ^^~ 77te importance ofthe Law cf Bailr.ients, and the variety of its appUoatioTis to t7ie affairs of life, has vastly inereased- Hnce the dxnAjs of Bir WiUiam Jones, and even since Mr. ^iory's work icasjiiiuhed^ moH especially in regard to the carriage of freight and passengers hy the n&w rnodea of tra?isportaiion l>y railroads and stea-r^- vesseU^ which have very veceTiUy come into general use. Tliis subject is v&n/ fully and satisfactorily treated, hy Mr. Edwards, v/nder the head of- Common Carriers,'' and ' Carriers of Passe7igersC which subject occupies fl&o?*(200 pages ofthe worXr. _^S S. The reader will find here the most complete collection of adjudged cases, in the English and American Courts, upon these subjects, that has ever been made." E:D1VARI>S on kills of exchange and PROMlSSOieif NOTES. Price $5 50. A Treatise of Bills of Exchange and Pkomisbort Notes. Bt Isaac Ed-wards, eounselor at law. [From the New York Jouenal of Commerce.] The materials of this work being based on the decisions of our own courts, it does not come into competition wfth auy English work on ihe subject ; nor can it be deemed a rival of anything which has yet appeared in this country. The object has been to ascertain the law and state it in brief tern)s, with such illustrations as seemed calculated to d*-velnp and explain the reason on which it is founded. Estimating the importance of the subject with rererence to the amount of property afloat in the sha\:e of bills and notes, there never has been a time when it called for greater accuracy and discrimination than now, or invited the attention of merchants and professional men with equal urf^ency. [From the New York Commercial Advertiser.] As the latest decision is deemed the highest authoiity in legal matters, the latest treati'se or digest of cases on any brancli of the law must be of the greatest value to practitioners, pro\itled, of course, that it be faithfully compiled and judiciously arranged. These requirements being met by the volume before us, we may justly recommend Mr. Edwards' treatise to the gentlemen of the bar. It is pre-eminently an American law hook, incorporating the substance of nenrly two thousand American deci>iittis with the prin- ciples of law regarding negotiable paper established by the adjudications of the Enirlish Courts, and setting forth in notes the statutes ofthe status in which the commercial law is not adopted. By wny of appendix, a translation is given of that part of tlie Commercial Code of France relating to bills of exchange and prom- issory notes. The index is very minute, and will enable the reader to find in a moment what ihe law is on any point ofthe subject. The work is primarily adapted to the use of lawyers, but it wiH be scarcely leas useful to merchants and bankers. ELLIOTT'S DIPLOMATIC COBE. Two Vols. Price $12. EN«r»SIl CIIANCEKY REPORTS. Forty-iliree Araerican Vols. Price $1G5. These very Yalttablb and Important Decisions ahe REPUBLisnED verbatim from the London copy, with notes and referencosto English and American Authorilios. By John A. DuKLAPj and continued by the Hon. E. F. Smith, J. L. Hanes, and N. Hom^ard, Jr. ; being LA"W PUBLICATIONS. the Reports of Cases argued and determined in the High Courts of Chancery, tlie Rolls Court and the Tiee-Chanoery Courts of England. 62 English Volumes contained in 43 American, but without any condensation. The first 18 American contain 36 English or 2 English to one American. Tliey have each an index, and can be bound separately. This is the only series without condensation. AUEBICAN TOLS. 1 « 4 14 15 18 IT 18 19 COMTAININQ VOLS. AMBBI0A2J VOLS, Simons & Stuart land 2 20 Simons 1 and 2 21 Buesell 2 and 3 22 Eussell 4 23 Jacob 1 24 Bussell .■) 25 Kussetl & Mjine 1 ■ 26 Simons 8 and 4 2r MylDo & Keen 1 and 2 28 Simons TandS 29 Simons 5 and 6 80 Mylne & Keen 8 1 81 George Cooper 82 Kussell & Mylne 2 , S3 Lloyd & Goold 84 Turner & Eussell ll 85 Tamlyn 1 f 86 Mylne ft Craig 1 1 87 Steuart MacNaghten 33 Mylne & Craig 2 and 3 39 Keen land 2 40 Simona 9 and 10 41 Beavan 1 and 2 42 Mylne & Craig n " Craig St. Phillips 43 Phillips I OOHTAINING Younge & Collyer Tounge & Collyer Phillips Uare Hare Hare II are H are Collyer Beavau Hare Hare Hare Collyer Simous Simons Simons i?lmons Billions Simons Simons, N. Series. Have Simons Simons; N. Series, Beavfln 2 11 It IS U IS 16 1 9 GRAHAM AXD W^ATERMAIV OIV NEAV TRIALS. Second Edition. Three Vols. Price $16. A Treatise on the Principles op Law and Equity 'which govern Courts in the granting of Now Trials, in Cases Civil and Criminal. "With copious Notes and References to the American and English Decisions. By G-raham & Waterman. [From the New York Commkroial Adteetibee.] "There is no title in the law on which a new and copious treatise was more needed by practitioners than on New Trials. When David Graham published his treatise in 1S84, it was welcomed by xhe profession almost as a godsend, for it cultivated an important field which Grant in hfs ' Summary.' and Morf^an in his ' Essay,' had barely skimmed over. The death of Mr. Graham unfortunately prevented him from revising and preparing a second edition of his work ; for some years it has been out of print, and although so highly esteomed that sums considerably beyond the original cost have been offered for copies, the publishers have delayed the publication of a second edition until now. This edition has been revised and corrected with great care, and Is Improved by a full analysis of each chapter, which much facilitates consultation. Mr. Graham's treatise comprises one volume of 630 partes. It is the text, as it were, of Mr. Waterman's more copious commentary, which is an entirely new treatise of nearly 1,700 pages, forming Volumes II and III of the complete work, to be hereafter known as Graham and Waterman on New Trials. The whole body of the American and English decisions, the reports of the courts of every State In the Union, and the reports of every court in Great Britain, have been sifced, and all the cases pertinent to thethome carefully analyzed, for the purposes of this work. Nearly a thousand cast-s are cited in the first volume by Graham, while in the second and third volumes by Waterman tbe number of cases quoted exceeds three thousand eight hun- dred, making in all nearly five thousand cases, collected and arranged in one systematic work. We think it may fairly be said to exhaust the subject. " Mr. Graham's treatise having long been atext-book in the hands of the profession, it would be superfluous to speak minutely of its contents. Mr. Waterman opens his part of the work with a general view of the subject of trial by jury, and of the aocient and modern metheds of correcting a wrong verdict. It appears that 'anciently, the principal remedy for reversing a verdict, improperly given, was by writ of attaint The nqiiiry was made by a jury, double the number of those who rendered the alleged false verdict, antl if they found the verdict a false one, the judgment by the common law was, that the jurors should become In- famous; should forfeit their goods, and the profits of their lands; should themselves be imprisoned, and their wives and children thrown out of doors; should have their houses razed, their trees extirpated, and their meadows ploughed; and that the plaintiff should be restored to all that he lost by reason of the im- just verdict. A law so terribly severe could not be executed, and by subsequent statutes, which were made perpetual by 18 Eliz. c. 25, the punishment was diminished to perpetual Infamy and a pecuniary fine.' Ao- cordiog to Blackstone, 'there are instances in the year books, in the reigns of BMward III, Menry IV, and Henry VII, of judgments being stayed, even after a trial at bar, and new venires awarded, because the j my had eat and drank without the consent of the judge, and because the plaintiff had privately given a pamper to a juryman before he was sworn.' And upon these the Chief Justice Glynn, in 1655, grounded the first precedent that is reported in our books for granting a new trial upon account of excessive damages given by the jury; apprehending, with reason, that notorious partiaUty in the jurors was a princ^pa^ species of misbehavior. " In the chapter following the historical view from which we extract these antiquities, Mr. Waterman dis- cusses the jurisdiction of courts in granting new trials; and in succeeding chapters he considers la detail BANKS & BROTHERS' the various causes for granting such relief; for example, — ^want of, or insufficient, notice of trial; defects in tlie s .immoning and drawing of jurors; disqualification of jurors, from interest, relationsliip, conscientious spm p es, age. alienage, mental or bodily disease, &c; tampering with the jury; t)ias or hostility of jurors; misconduct of the jury ; misruling or misdirection of the judge ; surprise; newly discovered evidence; ex- cessive or inadequate damages; verdict against law or evidence, &c.; and the concluding chapter is_ de- voted to the consideration of the principles by which courts of equity are governed in granting new trials. " The time and labor expended, in compiling a work so comprehensive and elaborate, must have beea very great, and can scarcely fail to he appreciated by the profession. In truth, the work will henceforth be an indispensable part of the library of every lawyer who practices in courts of record In any State of ^he Union. It is also probable that it will be reprinted in England, where, as well as here, it is unrivaled. Illl^Ii'S KEPOKTS. Seven Vols. Price §28. Reports of Cases argued and Determined in the Supreme Court, and in the Court for the Correction of Errors ef the State of New Tork. By Nicholas Hill, Jun., counselor at law, and continuation of Johnson, Cowen and 'Wendoll. HIIvLIARD OIV REAIi ESTATE. Third Edition. Two Vols. Price $11. Vbry much Enlaroed, "WITH Notes and References bt the Author. HIIvTON'S KEPOKTS. Vol. 1. Price $5. Reports of Cases Aroued and Determined in the Court of Common Pleas for the City and County of New Tork. By Henry Hilton, one of the Judges of the Court. HOFFMAN'S CHANCEKY REPORTS. Second Edition. Price $5. Reports of C^ses Decided in the First Circuit op the State of New York. This Yokimo of reports was carefully revised by Judge Hoffman, and partially annotated by him- The annotation was afterwards completed by a member of the New York bar. It will be found a valuable acquisition to eveiy lawyer's library. HOFFMAN'S LEGAL, STTJDY. Two Vols. Price $5. HOPKINS' CHANCERY REPORTS. Price $5. Reports of Cases Argued and Determined in the Court or Chancery op the State of New York. By Samuel Hopkins, counselor at law, and successor of Johnson. N. Samdford, Ghancdlor. HOAVAKD'S CODE. Second Edition, very much Enlarged and Improved. Price $6. The Code of Procedure of Pleadings and Practice of the State op New York, 1860, with complete Notes and References. By N. Howard, Jr., counselor at law. This work contains the Code of Procedure as it now stands. It also contains the latest rules of the Courts, w-itli a copious Index to the whole work. The notes of the decisimis of the Courts, to the several sections of the Code, contain the most recent decisions and are veryftdl. The book constitutes a work on Practice and Pleadings, &c., which every lawyer and every justice of the peace should possess. "Mr. Howard has added largely to his reputatioji by this Code. IIo has been identified with the Code since its formation, and has had much e.xpei'ience in its practice, having re- ported sixteen volumes of Practice Reports, and they have met the approval of the Judges and Profession at large. His great familiarity with points of practice and the Code will give LAW PUBLICATIONS. 9 this work such an advantage that no other work can obtain. This volume will be found of great value and service, as it contains the very latest amendments and decisions to date." IIOWAKD'S PRACTICE REPORTS. Eighteen Vols. Price $63. Reports of Cases Argued and Determined in the Supreme Court, at Special Term, with the Points of Practice decided, from October Term, 1844, to May, 1860. By Nathan Howard, Jun., counselor at law. Howard's Practice Reports are especially interesting and useful, on account of their being the main and almost exclusive exponents of the New York Practice under the Constitution of 1846, and Code of Procedure. Other similar publications there have been, but their ex- istence has been of a comparatively short duration, while Mr. Howard has pursued the even tenor of his way, giving to the public, regularly and undeviatingly, the decisions of the courts from the year 1844 to the present time. It may therefore be said unhesitatingly that this is the only reliable series of reports upon the New York Practice. They have an established reputation and are received as authority in all our courts. They will be found very useful in states having a similar Code to that of New York. HUMPHREYS' PRECEDENTS. Two Vols. Price $8. A Collection op Practical Forms in Suits at Law ; also Precedents op Con- tracts, Conveyances, WUls, &c. ; and Proceedings under the Pension, Patent and Naturaliza- tion Laws of the United States, with Annotations and References. By Charles Humph- reys, counselor at law. JOHNSON'S CASES. Second Edition. Three Vols. Price $12. Reports op Cases adjudged in the Supreme Court op Judicature of the State op New York, &om January, 1799, to 1803, inclusive, together with oases determined in the Court for the Correction of Errors, during that period. A second edition. With many ad- ditional oases not included in the former edition, taken from the manuscript notes of the late Hon. Jacob Radcliff, one of the Judges of the Supreme Court, and associated with the Hon. Morgan Lewis, James Kent (since Chancellor of the State), Egbert Benson, John Lansing, Brockholst Livingston and Smith Thompson (the two latter were subsequently appointed Judges of the Supreme Court of the United States). With copious Notes and References to tlie American and EngUsh Decisions. The writ of mandamus has been treated of fully in Volume II of these reports, and references to the oases in it have been introduced, together with a complete collection of forms and precedents not found elsewhere. By Lorenzo B. Sheppard, counselor at law. JOHNSON'S CHANCERY REPORTS. Second Edition. Seven Vols. Price $32. Reports op Cases Adjudged in the Court of Chancery of New York. By William Johnson, counselor at law. Containing the Cases from March, 1814, to December, 1823, inclusive. With a General Digested Index of the Cases decided and reported in the Court of Chancery, and in the Court for the Correction of Errors, on Appeal, from 1799 to 1822, inclusive, with a Table of the names of the Cases, and of the Titles and References. James Kent was Chancellor during the above reports. .rOHNSON'S REPORTS. Third Edition. Twenty Vols. Price $60. Reports op Cases Argued and Determined in the Supreme Court of Judicature and in the Court for tlie Trial of Impeachments and Correction of Errors in the State of 10 BANKS & BROTHERS' New York. By "William Johnson, counselor at law. "Willi additional Notes and Refer- ences. James Kent, Chief Justice. KEHNAN'S KEPOKTS. Vols. 2, 3 and 4. Price $6. Reports of Cases Aesued and Determined in the ConET of Appeals of the State of New York, with Notes, References and an Index, from 1854 to 1856 iiiclusi\'e. By Francis Keenan, counselor at law. X.AMBERT ON DOWER. Price $1. EAW OF FIXTURES. Second Edition. Price $3. A Treatise on the Law of Fixtures and other Property paetakino both of a Real and Personal Nature; comprising the Law relating to Annexations to the Freehold in gen- eral ; as also. Emblements, Charters, Heir-Looms, etc., with an Appendix, containing prac- tical rules and directions respecting the Removal, Purchase, Valuation, etc., of Fixtures between Landlord and Tenant, and between Outgoing and Incoming Tenants. By A. Amos, Esq., and J. Ferard, Esq., barristers at law, with copious Notes and References to all the English cases to the time of publishing (1847), by Joseph Feraed, Esq., barrister at law The Second American Edition, from the last English, will contain all the cases decided, in the Courts of Law of the United States and the Courts of the several States, en the subject to the present time. "With a Digest of the Statute Laws of the several States relating to the subject. By "William Hogan, counselor at law. l,OCK"WOOD'S REVERSED CASES. Price $4. An Analttioal and Practical Synopsis of all the Cases Aegued and Reveesed in Law and Equity in the Court for the Correction of Errors of the State of New York, from 1799 to 1847 ; with the names of the Cases, and a Table of the Titles, 4o. By Ralph LooKWOOD, counselor at law. EUBE'S E<4UIT"r PlyEABING. Second Edition. Price $3. MATHE"WS' PRESUMPTIVE EVIDENCE. Price S3. racCALL'S FORMS. ' Second Edition, Enlarged and Improved. PiHce $3. Peeobdents, or Practical Forms in Actions at Law, in the Supreme Court of the State of New York ; the Superior Court and Court of Common Pleas, for the city of New York, adapted to the Code and rules of 1858, and to the practice of states having a similar Code ; partition of infants' estate ; -sale of infants' estate ; admeasurement of dower ; fore- closure by advertisement ; determination of claims to real estate, and appeals from Surro- gates' Courts. By y. MoOall, counselor at law. After the New York Code came into operation, the publishers of the above work were frequently applied to, by members of the bar, from every section of the state, for a manual of forms which should embrace (he whole field of practice, and not bo confined, as most similar works are, to the pleadings. In 1852, they had the pleasure of salisfyins' this want, by the production of the very useful book of Mr. MoCall; which proved entirely reliable, although at that time the Code had been but recently adopted, and there wore, in couse- LAW PUBLIC ATIOlfS. 11 quence, but few decisions defining and construing it. Subsequent amendments of the Code, however, rendered a change in the phraseology and scope of some of the forms necessary. These changes have been made in this edition ; and the work has been carefully revised, and enlarged by the introduction of ono hundred and twenty-five new forms. It now covers the whole range of practice, from a simple affidavit to the most technical special proceeding. The forms selected are such as have been used by leading practitioners, and obtained the approval of the higher courts. In those states which have a Code similar to that of New York, this work will be found a convenient and safe guide. NEWBEKRY'S ADMIRAI.XY BEPORTS. Price $5. Newberry's Admiralty Reports of Cases Argued and adjudged in the District Courts of the United States, for the District of Michigan, Northern District of Ohio, Southern District of Ohio, ^V■este^n District of Pennsylvania, Northern District of Illinois, District of Missouri, and Eastern District of Louisiana, from 1S42 to 1857. By John S. Newberry, of the Detroit bar. Judges' Names. — Hon. Ross "Wilkins, Hon. H. T. "Wlllson, Hon. H. H. Lbavitt, Hon. T. Irwin, Hon. Thomas Drummond, Hon. Robert "Wells, Hon. Thomas H. McCaleb. NEW YORK IGEST. Four Vols. Price $IQ 50. PAIGE'S CHANCERY REPORTS. Nine Vols. Price $45. Reports of Cases Argued and Determined in the Court of Chancery of the State of New York. By Alonzo C. Paige, counselor at law, and successor of Hopkins. Chan- cellor of the State of New York, during the time of these Reports: Reuben B. VMworih. PAINE'S CIRCIIIT COURT REPORTS. Two Vols. Price $11. Reports of Cases Argued and Determined in the Circuit Court of the United States for the Second Circuit, comprising the Districts of New York, Connecticut and Ver- mont. By Elijah Paine, Jun., late one of the Justices of the New York Superior Court. PARKER'S CRIMINAIi REPORTS. Two Vols. Price $8 50. Reports of Decisions in Criminal Cases made at Term, at Chambers, in the Courts ot Oyer and Terminer of the State of New York. By Amasa J. Parker, The want of criminal reports has long been seriously felt. Very few decisions have found their way into the Supreme Court reports. The necessity for sucjti reports is as obvious and as urgent as is that which has led so universally to the reporting of decisions in civil oou- froversies. This want is being most ably supplied by Amasa J. Parker, Esq., one of the udges of the New York Supreme Court, in the series of criminal reports now being issued ty him. No one better qualified than he could have undertaken the task, and his position as judge affords him unusual facilities, not only in obtaining the most important cases, but also in acquiring correct information relative to them. These reports are destined to take the highest rank among similar publications. The volumes already published contain many eases of great interest and value. We would especially call attention to The People v. Thurs- ton, and The People v. Robinson, in the second volume. Every magistrate and district attor- ney, and every lawyer practicing in criminal courts, should obtain Parker's Reports without delay. 12 BANKS & BROTHERS' PHII-I.irlPS ON EVIDENCE. Fomili Edition. Three Vols. Price $18. A treatise on the Law of Evidence. In three volumes, with Notes by Esek Cowen, formerly one of the Judges of the Supreme Court of the State of New York; assisted by, Nicholas Hill, Jr., counselor at law, and late State Reporter. With additional Notes and Refer- ences to the English and American Cases to the present time, by J. Maesden Tan Cott, counselor at law. Fourth Edition, by Isaac Edwahds, counselor at law, author of "Sd- wards on Bailmenis," and " Edwards on Bills and Promissory Notes." This edition comprises the whole of the English text, and Cowen & Hill's and Tan Cott's notes. The wliole work has been rearranged and rewritten, and a great number of new and valuable notes added. Every precaution has been talfen to render the present edition of this work superior to any that has been pubhshed upon tlie subjsot. Particular attention has beea paid to the indexes and table of cases, to have them full and accurate. Notwithstanding numerous treatises on the Lavr of Evidence, the work of Mr. Phillipps maintains an extraordinary pre-eminence. In England it has passed through nine editions. No mere abridgment (such as all the American works on evidence may properly be denom- inated) can supply its place. It is both elementary and practical, and is equally important to the student and practicing lawyer. [From A. J. Pakker.] Messrs. Banks & Brothers: — Qentlcmeu, — 1 have examined with some care your new edition of Phillipps* Evidence with Cowen and Hill's Notes, edited hy Mr. Edwards. It is certainly a work of great value and cannot fail to be highly appreciated by the Profession. To the Notes of Cowen and Hill, already of world- wide celebrity, are added those by Mr. Edwards, which bring down the references to the present time. These seem to have been faithfully prepared. I ihink the arrangement is also improved, by bringing all the Notes into move convenient proximity to the text. This work now possesses the great advantage of en- ahling the professional practitioner or student, in examining a rule of evidence, to see at a glance a synopsis of all the decisions bearing upon it, and, by the aid of the notes, to pursue the Investigation by the exami- nation of the authorities bearing upon the subject. [From AmoI Dean.] Messrs, Banks «fe Brothers : — Gentlemen, — I think the arrangement of this work is admirable. The Pro- fession 1 think all felt before, that, although the work presented an immense body of valuable law, yet its ar- rangement was such that it was difficult to find just the thing that was wanted, and hence its usefulness wa.s greatly diminished. It now appears easy of reference, with indexes to eat-h volume. It isasplendid monu- ment of human iud'ustry, and I trust you will derive from it all that your enturpriaing spirit so richly deserves. / [Prom the Commeroiai. Adveetipeb.] In New York, as in England, no person offered as a witness is now e.\dnded by reason of incapacity from interest, and even the parties to actions at law are competent witnesses. The law of evidence has been subjected to substantially the same alteration in Connecticut, Vermont, Ohio, Massftchusctta, New Jersey, Mississippi. Wisconsin, Maine, Bhode Island, and probably other states. Jn view of this radical amendment and of various other modifications, a new edition of this standard work was absolutely required, and must be eagerly welcomed by the legal profession. Greenlyafs treatise on evidence is so purely elementary, that it is move useful to the student than to the actual practitioner of the law ; but this great work of Phil- lipps (as revised and enlarged by himself and Justice Arnold in ten successive English editions, and copiously annotated, first by Judge Cowen and Nicholas Hill, next by J. M. Van Cott, and now by Mr. Edwards, in four successive American editions) is the most elaborate, conipi ehetisive and thorough digest or abridgment of the English and American law of evidence that has ever been compiled, and may truly be said to exhaust the subject. The three volumes of the present edition contain, in the aggregate, nearly three thousand paires of compactly printed matter, analytically arranged and minutely indexed, supplying an inexhaustible arm- ory of arguments aud precedents, to be readily found when needed in forensic contests. KEEVE'S DOMESTIC KEIiATIOlVS. Second Edition. Price J3. THE REVISED STATUTES OF THE STATE OF XEW VORK. AUTHOKIZED EDITION, CERTIFICATE OF THE SECRETARY OF STATE. Fifth Edition. Three Volumes. Price $15. Tins Revised Statutes of the State of New York:, as altered by subsequekt legislation, together with the unrepealed statutoiy provisions of a gouer.al nature, passed from the time of the revision to the close of the session of the Legislature of 1858, arranged in the manner of the Revised Statutes. To which are added references to judicial decisions in relation to their provisions, and explanatory note. Prepared by Amasa J. Parker, George Wolford and Edward "Wade, counselors at law. Preface to the present Edition. — In preparing this edition of the Revised Statutes the LAW PUBLICATIONS. 13 editors have followed the general plan adopted in the aeoond and fourth editions. That plan will be found particularly detailed in the preface to the fourth edition, and .in tlie extract from the preface to the second edition, herewith published. All the public statutes now in force in this state, including those passed at the last session of the legislature, are embodied in this edition, and ^ced under their appropriate heads. {In preparing the text^ the previous editions have bean carefully examined and all errors found therein corrected.) To the notes and references of the fourth edition, which have been adopted after ciitical examination, there have been added notes explanatory of subsequent legislation and full references to the decisions made since 1851, in the court of appeals, the supreme court, and the superior court of the city of New York. Keferences are also given to Parlier's Criminal Reports, Bradford's Reports, and Howard's Practice Reports. Tlie great amount of legislation since the publication of the fourth edition, particularly on the subjects of schools and taxation, and the general acts of incorporation, with the special legislation applicable to the city of New York, were found to have swelled the woi Ic to so great a size as to render three volumes indispensable. Such a change was found also not inappropriate to a proper division of subjects, and it is believed it will be deemed to have given a more convenient size to each volume. ^^ The index has been prepared with great labor, and will be foimd to be very f9and well arranged for reference. AMASA J. PARKER, GEORGE "WOLFORD, EDWARD WADE. WB BKG LEAVB TO CALL ATTENTION TO THE FOLLOWING : Tlie Hon. H. Denio says: — I do not doubt bnt that this work will be found valuable. The Hon, "Wm. S. Allen, of Oswego, N. Y., says ; — It is in many respects an improvement on the fourth edition. The Hon. Amos Dean says ; — ^The Profession can rely with great confidence on the general accuracy of the edition. That which, in my opinion, is particularly commendable and will be in a more eapecial manner acceptable, is a most thorough, minute and well-displayed index. J. Mullen, Watertown, says : — It is a well-arranged and in all respects a valuable edition of the Statutes. Noah Davis, Jr., Albion, says : — ^The arrangement seems to be admirable and the index copious and complete. Hon. T. O. Johnson, Corning, says :— These volumes are issued in a style highly creditable to the publish- ers, and reflect much credit upon the skill, industry and accuracy of the eminent legal gentlemen who have nrepared them for the publishers. The Hon. D. Pratt, Syracuse, says: — I am well pleased with the manner in which] the Statutes arear- 1 anged. The index is admirable. The Hon. E. Darwin Smith, Rochester, says : — It was time a new edition was printed and it is prepared In a flue manner. With letters from Hon. Judges Comstock, Johnson, Selden, of the Court of Appeals, and Hon. Judges fchankland^ Harris, Davies and others of the Supreme Court. REYNOtDS' I.JFE ASSUKANCE. Price $2. A TitEATISE ON THE LAW OF LIFE ASSURANCE. By DeXTEK REYNOLDS, COUNSELOR AT LAW. R.AlV]aAL,L,'S SCIIOO£, tAW. Price $1 25. The Common School System op the State of New York, comprising the sevbeal General Laws relating to Common Schools, together with full expositions, instructions and forms for the use of the several school officers and the inhabitants of districts; a complete Digest of the Decisions of the State Superintendent, and the several local provisions for the support of Common Schools in the cities and villages of the State. To which is pre- fixed a Historical Sketch of the Origin, Progress and Present Outline of the System. Pre- pared in pursuance of an Act of the Legislature, under the direction of the Hon. Christo- pher Morgan, Superintendent of Common Schools. By Samuel S. Randall, Deputy Super- intendent of Common Schools. SANDFOnS'S CHANCERir REPORTS. Four Vols. Pi-ice $20. Reports op Cases Argued and Determined in the Court of Chancery op the State 14 BANKS & BROTHERS' of New York, before the Hon. Lewis H. Sandford, Assistant Vice-Chancellor of the First Circuit. SANDFORD'S SUPERIOK COURT REPORTS. Ihiio Vols. Price $10. Kepoets of Cases Aegued and Deteemined in the Supeeioe Court of the Citt of New Tork. session i.a'ws, The Session Laws op the State op New Toek aee published at the close op each Session. The Laws of the Legislature from 1821 to 1859, inclusive, in 38 Volumes. These Session Laws are well executed, and bound separately, and sold very low. SHERHIAIV'S RIARIIVE INSURANCE. Price $2 50. SMITH'S COMMENTARIES ON STATUTORY AND CONSTITUTIONAI, EAAV. Price $5. COMMENTAEIBS ON STATUTE AND CONSTITUTIONAL LaW, AND StATUTOET CONSTITUTIONAL Construction, containing an Examination of Adjudged Cases on Constitutional Law, under the Constitution of the United States, and the Constitution of the respective States, concern- ing Legislative Power, and also the Consideration of the Rules of Law in tlie Construction of Statutes and Constitutional Provisions. By E. Pitch Smith, counselor at law. [From the New Tokk Legal Obbbetee.] We have for some time past intended to direct the attention of the legal profession to the Hon. E. Fitch Smith's " Commentaries on Statute and Constitiuionai Law and Constitutional Oonstrnction.'' Instead of a review of these Commentaries, we have concluded to present to our readei-s some of the many testimonials which, at nur request, thepublishers have furnished us. In the £tlknap Gaaette, published in New Hamp- shire, we find these Commentaries thus alluded to : "Mr. Editob, — I'ennit me, through the columns of your useful paper, to congratulate the profession upon the* appearance of the Hon. E. Fitch Smitii's ' Commentaries on Statute and Constitntional Law.' " The first ftve chapters in this learned work conlain the origin and history of legislation among the ancient governments — of legislation in England — of legislation in the colony of Virginia — of legislation in the col- onics of Now Plymouth and Massachusetts Bay, and in the Connecticut colony— and then proceeds, sixthly, to treat of the legislative power of the states, and the bills of rights of the respective states. Chapter 7th, of legislative authority irrespective of any constitutional restrictions upon legislative power, :""i a uiBun ■The following extracts are taken from Hunt's Merchants* Magaelne • " A work, fully and ably treating the subject of statutory and constitutional law has been mn^\ „^.a.a and the learne.1 labor, of Mr. Smith have resultod In an exceedingly seasonLbirtubficatlon Of Sne to the book furnishes oonolusivo^wtmo/rtcia proof, and a refutation of a prevailing not on w. .^^^n, „ t old that the da,, of profound sohularship, of • learned tomes ' (as the phrase ruisf, are gori,,. B„? U>»t" iS LAW PUBLICATIONS. 15 one branch at least of human learning, there are still to be found deep thought and patient study, such books as these Commentaries conclusively prove ; and if we are told that we have no longer the huge folios of former days, we answer that the fashion, rather than the size of the volume, has changed, and we point, for proof, to Mr. Smith's octavo of a thousand pages. "The direction of modern legal scholarship has changed, but it has lost nothing in profundity. Wo longer puzzling over the subtleties of the schools, it finds enough to do in gi-appling with the momentous ques- tions and pressing interests of the present ; and no longer flnding time for the refinements of a logic which afforded gratification to a learned complacency, rather than yielding practical good, it has need of all its time and powers to keep up with the developments of an active age, and in endeavoring to reduce to rule and system the notions and opinions, the necessary modifications of old rules, called forth by new events and the changing aspect of society. *' We speak not only with reference to our own country, when we call this work seasonable. At a time when all Europe is convulsed with movements, the whole end and aim of which is constitutional change, the shifting of the supreme power of states off one basis to another, with fundamental changes; in shurt, the inquiry into the sources, nature, extent and limits (if limits there be) of this supreme power of states, be- comes momentous and vital. "When we consider that it lias been for years a mooted point whether there be in fact limits to the power of the legislative or law-making authority, and how pertinaciously the doc- trine of the omnipotence of Parliament (as English writers call it) has been attacked and defended, we see how fundamental and at the same time unsettled, are some of the questions connected with this subject. One of the most interesting and elaborate chapters of this work is devoted to this question. Mr. Smith has brought together the opinions of the gi'eat text writers on the subject — those of Burlamaqui, Woodesson, Doraat, Blackstnne and others on one side, and those of Vattel, Locke and Hall on the other, and then pro- ceeds to examine, in detail, the leading American authorities, of both state and federal courts^ "We commend this work, and the subject which it treats, to the study, not only of the A™pcan lawyer, but of the American legislator, the American merchant, and, we may add, to every citizen ^o, as a voter, makes a unit in that aggregate of popular will which expresses itself by acts of legislation. A distinguished jurist says: — "This subject, so ably treated, is one ot the highest interest and importance not only to tke lawyer and jurist, but to the legislator and statesman and must commend this work to the diligent Study of all those w'ho aspire to an accurate knowledge of th' science and true principles of legisla- tion." A gentleman of high eminence at the Boston bar proaouncea these Commentaries "an able, learned and highly satisfactory treatise." The attorney -general of Alabama says: — "I have been highly delighted in their perusal; I entertain the opinion, and have no doubt that ere long they will be in high esteem among the legal profession." A juridical writer says: — " Such a work as this has been mnch needed. In it are discussed, and that In a most able mannnr, the law and rules of construction of constitutional anfl statutory enactment. It opens and enters in a bold manner upon a subject which, under our free and republican institutions, presents a wide and interesting field for the exploration of the legal student and juridical scholar in the exercise of judicial and professional learning, and is worthy the careful and attentive perusal of all those who desire an accurate and j ust apprehension of the genuine policy and real philosophy of our happy and peculiar institu- tions, or the true basis of human rights upon which they are founded." Our space will not admit of further extracts at present. Wo would add, in our opinion, the work of Judge Smith evinces an intimate and accurate acquaintance with constitutional law and other subjects of which he treats. We find in it the impress of a clear and discriminating mind, legal ability aa a juridical writer, sn- eurpassed by few writers of the present day. From the learning and talent exhibited in the numerous judicial opinions of this author, which we have heretofore published, we had reason to expect that a work emanating from his pen would be one of real intrinsic merit. Our expectations in this respect have been fully realized. These Commentaries also contain an unusual amount of original matter. We were much gratified in the perusal of the logical and impressive argument contained in the opening of chapter nine; in which the author discusses' the important constitutional question, " What is abill (within the meaning of our con- sti tution) appropriating the public moneys or property for local or private purposes ?" The concluding part of chapter seven, from section 149 to 178, both inclusive, contains one of the most bold and masterly arguments which has ever fallen under our observation, upon the difficult and intricate question, "As to the power of the legislature, irrespective of any constitutional restrictions, to pass retro- spective laws which shall have a retroactive effect." That portion of the work which relates to the consideration of the construction of statutes is of great practical interest and utility to the profession^ and in it will be found evidence of gi-eat research and of legal erudition of no ordinary cast The author has certainly rendered to the profession great and valuable service In this branch of juridical science, and what has been done has been well and scientifically done. SMITH'S REPORTS, COURT OF APPEAJLS. Six Vols. Price $12. Reports of Cases Argued and DeteIimineb in tue Court of Appeals of the State of New York. Bj E. Peshine Smith, counselor at law. Of the value of these Reports nothing further need be said than that they contain the cases determined in the highest tribunal in the State of New York. They have been veiy recently pui>lished, and there are no later New York Reporife. TILI^IIVOHAST'S BAIil,EI^XI]\€: ON LIMITATttOIVS. Price $3. TTATERMAK'S \» ISCOIVMIT ATSJi IOWA JUSTICE. Price $5. 16 BANKS & BROTHERS' LAW PUBLICATIONS. T«rATEKMA»r»S TUEATISE. Price 43. "WENDEIili'S KEPORTS. Twenty-Six Vols. Price $130. Reports of Cases Argued and Determined in the Supreme Court op Judicature, and in the Court for the Trial of Impeachments and the Correction of Errors of the State of New York. By John L. Wendell, counselor at law. Continuation of Johnson's and Cowen's Reports. "WHEATON'S EAW OF NATIONS. Price $5. History of the Law of Nations in Europe and America from the Earliest Tijies to the Treaty of Washington, 1842. By Henry Wheaton, LL. D., Minister of the United States at U^ Court of Berlin, Corresponding Member of the Academy of Moral and Political Science iiSce Institute of France. 1845. See American Law Magazine, Law Reporter, Hunt's Merchant's Magazine, and American Reyiew. TVHE EtiER'S CRIiWINAE CASES. Second Ediiion. Three Vols. Price $12. Reports of Criminal Law Cases, with copious Notes and References ; containing also a view of the Criminal Lav7S of the United States. By Jacob D. Wheeler, counselor at law. ^«^II-EAR»'S EQUITY JUKISPRrBBNCE. Price $5 50. A Treatise on Equity Jurisprudence. By John Willard, late one of the Justices of the Supreme Court of the State of New York. Chapter 1 : Of the relief afforded by equity in cases of accident and mistake. — Chapter 2: Of Account. — Chapter 3 : Of Fraud. — Chapter 4 : Of Specific performances ; Correction and Re-execution of Agreements ; and of Compensation — Chapter 5 : Of BUls of Interpleader, Bills of Peace, BiUs of Quia Timet, and BUls to Marshal Securities. — Chapter 6 : Of Injunc- tions. — Chapter 7 : Of Uses and Trusts. — Chapter 8 : Of the Protection Afforded by Courts of Equity to persons laboring under Disability. — Chapter 9 : Of Equity Jurisdiction in Cases of Dower and Partition. — Chapter 10: Of Partnership. — Chapter 11: Of Corporations ; and of Proceedings against them in Equity. [Prom the Ne^ Toek Evening Post.] " Judge "Willard has occupied a leading poaition at tlie bar of this state for more than twenty-five years, and, as a member of the Supreme Court and Court of Appeals, has won for himself an enviable fame wher- ever the judicial Reports of these tribunals are read. "The Treatise on ilquity Jurisprudence,just submitted by him to the profession, was much needed. He has made a book for which there is no substitute, and which will soon be found indispensable to every equity lawyer in the States. It li.as been executed obviously with great care and labor, and none who know the character of Judge Willard's mind will doubt its accuracy." "WISCONSIN REPORT'S. Second Edition. Five Vols. Price $25. Reports of Cases Argued and Determined in the Supreme Court of the State of Wisconsin. By Abram D. Smith, Associate Justice. A TREATISE THE LAW OF EVIDENCE, TENTH ENGLISH EDITION, ■WITH CONSIDBRABLK ALTEEATIONS AND ADDITIONS, BY THE EIGHT HON. S. M AEOH^PHILLIPPS, AND , THOMAS JAMES ARNOLD, ESQ., ONE OF THE POLIOB MAGISTRATES FOE THE METBOPOLIB., EOUETH AMERICAN EDITION, WITH COWEN AND HILL'S NOTES, AND WITH ADDITIONAL NOTES AND REFERENCES TO THE ENGLISH AND AMERICAN CASES, TO THE PRESENT TIME, INCLUDING THOSE ADDED TO THE LAST EDITION BY J. KARSDEN VAN COTT, BY ISAAC EDWAEDS, COnNBELOB AT LAV. VOL. I. NEW TOR K.- BANKS & BEOTHERS, LAW PUBLISHEES, 144 NASSAU 8TEEET, AND 476 BROADWAY, ALBANY. 1859. Entered according to Act of Congress, in the year eighteen hundred and thirty-nine, BY GOULD, BANKS & CO., In the Office of the Clerk of the Southern District of New York. Entered acording to Act of Congress, in the year eighteen hundred and forty-nine^ BY BANKS, GOULD & CO., In the Office of the Clerk of the Southern District of New York. Entered according to Act of Congress, in the year eighteen hundred and fifty-nine, BY BANKS * BBOTHEES, In the CIerk'«'OffiG& of the District Court of the Southern District of New York. PREFACE. This treatise^ whicli has already passed througli ten editions in England and been as often revised by its autbor, bolds deservedly high rank as aa elementary exposition of the Law of Evidence ; while the notes by Messrs Cowen & Hill, elaborate and comprehensive beyond any work of the kind, have given to these volumes the highest value and widest reception. The new form in which the present edition appears, demands from the editor a few words of explanation. The notes are printed in the same volume with, and (as far as practicable) immediately under the text to which they refer — a change in the mode of printing that will doubtleis? prove convenient, and greatly facilitate the labor of comparing one part of the work with another. The notes, which contain frequent references from one to another, are numbered from the beginning of the first to the end of the third volume, and are printed without alteration ; those added to the previous edition by Mr. Yan Cott retain the designation of stars by which they were distinguished from the others, and the citation of new authorities and statutes in this, are inclosed in parentheses. Keeping this in mind, the reader will readily place the responsibility of the successive annotations where it belongs. By a careful study of the notes, it will be seen that as a general rule, the division of either of them into separate parts cannot be made without breaking that fine chain of reasoning and discussion that runs through nearly all of them, making each a complete essay in itself. In a few cases the note embracing two subjects and appearing to be fairly divisible, has been divided, so as to bring each part under the appropriate head of the text ; and here and there, where the author in his late revision has adopted into the text only part of such a note, the part so appropriated has not been reprinted in its original form. iv PREFACE. In frequent instances tlie original note, citing and commenting upon Englisli authorities, lias been wholly absorbed and embodied in the text, enriching that at the expense of the annotators ; in these instances, of course, the note has not been reprinted, as such. Occasionally, the note, in its nature indivisible, has been only partly incorporated into the textj and has therefore, as a rule, been retained in full, as written. In brief, the entire work has been reproduced with the design of preserving the notes intact, as far as practicable. The text, it will be seen, is reprinted from the last English edition, which has been revised to meet the altered condition of the law ; some parts of it havabeen rewritten, and others transposed, and others again, including Sections iv, v, vi and vii, of Chapter v, of the former edition, de- voted to the incompetency of witnesses on the ground of interest, have been whoUy omitted. This change and re-arrangement of the text, required by recent acts of legislation, have made it necessary to re-arrange the. notes. The two first volumes embrace the last edition of the text and the notes of Messrs Cowen & HUl, with the exception of that part of them relating to the competency of witnesses covered by the omitted sections. These sections and the notes to them are printed in the third volume ; which also contains that part of the text of a former edition which gives the rules of evidence applicable in the common-law forms of action, with the valu- able notes published in previous editions. Each volume contains an index to itself, and the third, besides an index to itself, a general index to the entire work ; the references in each being made to both the text and notes. The labor of editing this new edition and adding references to the later authorities and statutes, greatly increased by the mode in which it has been printed, need not be commented upon ; it will, however, be allowed to qualify one to appreciate the infinite labor and research by which the great body of the work has been prepared. Albany, December, 1858. PREFACE TO THE THIED EDITION. SiNOB the publication of the last American edition of Phillipps on Evidence, •with Cowen A Hill's Notes, Mr. Phillipps (profiting by the labors of his American editors), has published a new and greatly improved edition of that part of his Treatise which relates to the general rules of evidence. The text of this work is a reprint of Mr. PhiUipps' last edition. A large portion of it has been rewritten, its arrangement materially altered, and several new heads added. The alterations made by him in the arrangement of the text have required a corresponding change in the arrangement of the notes. Although a task of great labor, that requirement has been met. The principal duty of the American editor, shortly stated, was, to indicate the alterations made in the law of evidence, since the last edition was published. This he has labored diligently to accomplish ; and he indulges the belief, that no case, material to this purpose, has been over- looked or omitted. A vast number of decisions upon points in the law of evidence, have been made, by the English and American courts, within the last ten years, but only a small numbe of them have involved anything really new. These had to be carefully sifted, that the few grains of wheat might be separated from the many bushels of chafi'. The work was not designed to be either an abridgment or a digest, but an elementary exposition of the law of evidence, with copious practical illustrations drawn from the adjudged eases. It has been the anxious wish of the editor (as of the publishers), to avoid unnecessarily increasing the bulk of a work already voluminous, but, at the same time, to omit nothing that would essentially increase its usefulnesii and value. In the execution of this task, it has been his aim, where the law had heen altered ■ ) to indicate the alteration ; where a point was in doubt, to bring forward any recent adjudication that would tend to clear it up ; and where a judgment was remarkable for its learning, or ex- pounded a rule with uncommon force, to note the case, although the point adjudged was no* new. And he has, generally, omitted to cite those cases (and they are very numerous), which were not admissible in one of these aspects. It is understood that the late Mr. Justice Cowen had intended, on his approaching retirement from the Bench, to write an elabor&te Treatise on the Law of Evidence. His long and distin- guished career, and his laborious habits, as a lawyer, reporter, and judge, had placed at hia disposal the moat ample materials for such a work. But his lamented death has deprived the vi PEEFACE. profession of a treatise in which the learning of this important head of the law would have been completely expounded and exhausted. It may be said of that learned and laborious judge with great truth, in his relation to this subject, that other men have entered into his labors. To hia predilection for this great head of the law (which was as decisively evinced as that of the illus- trious Lord Chief Bafon Comyns for his favorite title, Pleader), and his indefatigable industry (aided by his learned associate, Mr. HUl), in accumulating its various learning, as displayed in the voluminous notes to Mr. PhiUipps, we are, doubtless, indebted for the practical Treatise on Evidence by Professor Greenlea^ the chief materials of which were evidently drawn from the publications of PhiUipps, Cowen & HiU. It is confidently believed that the text of Mr. PhiUipps, »nd the accompanying notes, present % complete and accurate view of the present state of the law of evidence. The additions made by the present editor, when in the body of the notes, are contained between double asterisks. The other cases he has cited are noted in the index. Besides its adaptation to the latest edition of the text, and bringing down the English and American decisions to the present time, this edition of the notes contains several improvements upon the last. Reference to the text and notes is facilitated by a table of contents, and f^e index is somewhat enlarged and, it is hoped, oommensurably improved. J. M. T. 0. Nbw Yp^ October, 1849. PREFACE TO THE SECOND EDITIOK. The notes of Messrs. OowEif & Hill are' confined tio the first volume. In those which they nnderstand are about to be published with the second volume, they have neither of them had anj share wttatever, except that the senior editor loaned th^ wed f i»a of&ce and books to • member of the bar employed by the Jjookseller to compile them. In preparing the notes for the first volume, one object has bee^ to introdace such English casei as were printed intermediate the time of publishing the London edition and the printing of the present notes; and occasionally some of the most useful among the earlier cases, which were omitted in the text. Several oases cited there have also been referreii to in the notes, for the purposes of correction, or more enlarged illustration. The following American boolts have been consulted, besjdeg sojpe others : iJinTED States - Admiralty Decisions, 2 vols. ; American Law Journ. 6 vols. ; Baldwin's Bep. 1 vol; Bee's Admiralty Hep. 1 vol.j Brpckenbrough's Eep. ji VfA^ii Burr's Trial, 2 vols.; Chase's Trial, 1 vol.j Crancb's Eep. 9 vols.; Dallas Eep. 4 vpls. ; Day's Eep. (a few cases 4ecided b^ the XJ. S. Courts), 3d and 4th vols. ; Gallison's Eep. 2 vols. ; Gilpin's Eep. 1 vol. ; Journal of Juris- jprudence, 1 vol. ; Law Intelligencer, 3 vols. ; Martin's Eep. 1 voL ; Mason's Eep. 5 vols.; Paine's Eep. 1 vol.; Peters' C. C. Eep. 1 vol.; Peters' ^S^ Eep. 16 vols.; Sumner's Eep. 3 vols.; Trial of Smith & Ogden, 1 voL; U- S. Law Journal, 1 vol. ; XT. S. LawEegister, 2 vols. ; "Wallace's Eep. 1 voL ; "Washington's C. C. Eep. 4 vols, j "Wheaton's Eep. 12 vols. ; Howard D", & bep. 6 vols. ; Story's C. C. H. S. Eep. 3 vpls.; "Woodbury & Minot's 0. 0. teep. 1 vol. ; M'Lean's C. C. E^. 3 vols. ; Yan Ness' Prize Oases, 1 vol. ! "Ware's Admiralty Eep. 1 vol. Alabama - Alabama Eep. 1 vol. ; Porter's Eep. 9 vols. ; Stewart's Eep. 3 vols. ; Stew- art &, Porter's Eep. 5 7ols..; Alabama Eep. by the Jiiidges, 13 vpl^. CoNHEOTionr - - Connecticut Jlep. 18 vols. ; Day's Eep. 6 vols.; Kjrb^'s Eep. 1 vol ; Boot's Eep. 2 Vols. I^EliAWABB - - Harrington's llep. 3 vols. CrBOBfJiA - - - Charlton's Eep. 1 vol. ; Dudley's Ilep, X vol. ; B. M. Charlton's Eep. 1 toL ; telly's Eep. 4 vols. IllikoiS - - - Breese's Eep. 1 vol. ; Soammon's Eep. 4 vols. ; Gilmap's Eep. 4 vols. JfiDiANA - - Blacldbrfi's Eep. '7 vols. Kentuokt - - - Bibb's Eep. 4 vols.; Dana's Eep. 9 vols.; Hardin's Eep* 1 vol; Hughes Eep. 1 vol. ; LitteU's Eep. 5 vols. ; liittell!s Select Cases, 1 vol ; Marshall, A. £.'s Eep. (generally cited as Marshall's Ken. Eep.) 3 vols. ; Marshall, J_ J.'s Eep. 1 vols. ; Monroe's Eep. 7 vols. ; Kentucky Decisions, 2 vols, j Ben. Monroe, 8 voK vm PEEFAOB. liOCISUSA - - Haute - - UABTJiAHS - - llASSAOEXrSETTB Michigan - - IlJSSISSIf FI - - Missouri - - New Hampshire Ni!W Jeeset - Nbw Tore - KOBTH Cabouna Ohio FsmrsTLTAinA South Oabolina - Louiaiana Eep. 19 vols. ; Martin'3 Rep. 20 vols, [cited after the 12th as N. S. or new series] ; Robinson's Rep. 12 vols. ; Louisiana Annual Eep. 2 vols. Fairfield's Rep. 3 vols. ; Greenleaf b Rep. 9 vols. ; Maine Eep. 12 vols- (often cited as Shepley's Rep.) ; Appleton's Rep. 2 vols. - Bland's Ch. Eep. 3 vols. ; GiU k Johnson's Eep. 12 vols.; Har^ k John- son's Rep. 1 vols. ; Harris k M'Henry's Eep. i vols. ; Maryland Rep. (often cited as Harris k Gill's Eep.), 2 vols. ; Gill's Eep. 3 vols. Dane's Abridgment, 9 vols. ; Massachusetts Rep. IT vols. ; Pickering's Eep. 24 vols. ; Metoalf 's Eep. 11 vols. Douglass' Rep. 1 vol. ; Harrington's Rep. 1 vol. ; "Walker's Ch. Rep. 1 vol. ■Walker's Eep. 1 vol. ; Howard's Rep. 7 vols. ; Freeman's Chancery Eep. 1 vol. ; Smedes k Marshall's Eep. 11 vols. ; Smedes k Marshall's Chancery Eep. 1 vol. Missouri Eep. 4 vols. New Hampshire Rep. 13 vols. - Coxe's Rep. 1 vol. ; Green's Eep. 3 vols. ; Halstead's Eep. 1 vols. ; Pen- nington's Eep. 2 vols. ; Southard's Eep. 2 vols. ; Harrison's Eep. 4 vols. ; Saxton's Chancery Rep. 1 vol. ; Green's Chancery Eep. 3 vols. Anthon's N. P. Eep. 1 vol. ; City Hall Recorder, 6 vols. ; Coleman's Cases, 1 vol. ; Cowen's Eep. 9 vols. ; Edwards' Ch. Eep. 3 vols. ; Hall's Superior Court Eep. 2 vols. ; Hopkins' Ch. Eep. 1 vol. ; Johnson's Cases, 3 vols. ; Johnson's Ch. Eep. 1 vols. ; Johnson's Eep. 20 vols.; Judicial Opinions of the Mayor's Court, 1 vol. ; Judicial Eepository, 1 vol. ; Kent's Commenta- ries, 4 vols. ; New Tork Cases in Error (Gaines), 2 vols. ; New Tork Term Eep. (commonly cited as Caines' Rep.) 3 vols. ; Paige's Ch. Eep. 11 vols. ; Revised Statutes, 3 vols. ; Wendell's Rep. 26 vols. ; "Wheller's Criminal Cases, 3 vols. ; Hill's Rep. 7 vols. ; Denio's Eep. 4 vols. ; Barbour's Ch. Eep. 3 vols. ; Sandford's Ch. Eep. 3 vols. ; Hoffman's Oh. Eep. 1 vol. ; Clarke's Ch. Rep. 1 vol. ; Barbour's Law Rep. 3 vols. ; Comstock's Eep. 1 vol.; Sandford's Superior Court Rep. 1 vol.; Howard's Practice Eep. 3 vols. - Cameron k Norwood's Eep. 1 vol. ; Devereux Eq. Rep. 2 vols. ; Devereux's Rep. 4 vols. ; Devereux k Battle's Eq. Cases, 2 vols. ; Devereux * Battle's Rep. 4 vols. ; Hawks' Rep. 4 vols. ; Haywood's Rep. 2 vols. ; Martin's Rep- 1 vol. ; Murphy's Rep. 3 vols. ; North Carolina Law Kespository, 3 vols. Taylor's Eep. 1 vol. ; Iredell's Rep. 8 vols. ; Iredell's Eq. 5 vols. - Hammond's Rep. (or Ohio Rep.) 9 vols. ; Ohio Sup. Court Reports, (Wright) 1 vol.; "Wilcox's Eep. 1 vol.; Stanton's Eep. 3 vols.; Griswold's Eep- 4 vols. Addison's Rep. 1 vol. ; Ashmead's Rep. 2 vols. ; Binney's Eep. 6 vols. ; Browne's Eep. 2 vols. ; Dalla's Eep. 4 vols.; Miles' Eep. 2 vols.; Pennsyl. vania Rep. 3 vols. (Penrose & Watts); Rawle's Rep. 5 vols.; Sergeant* Eawle's Rep. 17 vols.; Watts' Eep. 10 vols.; Wliarton's Rep. 6 vols. • Teates' Eep. 4 vols. ; Watts k Sergeant's Eep. 9 Vols. ; Barr's Eep. 9 vols. - Bailey's Eep. 2 vols.; Bay's Eep. 2 vols.; Carolina Law Journal. 1 vol.. Constitutional Rep. (Treadway) 3 vols. ; Equity Eep. (Dessaussure) 4 vols. • Harper's Eq. Eep. 1 vol. ; Harper's Eep. 1 vol. ; Hill's Ch. Eep. 2 vols. ; Hill's Rep. 3 vols.; M 'Cord's Ch. Eep. 2 vols.; M 'Cord's Eep. 4 vols.; Nott & M'Cord'sEep. 2 vols. ; Reports Constitutional Court (Mills), 2 vols. ; Brevard's Rep. 3 vols.; Eiley's Law k Eq. Rep. 2 vols. ; Eioe's Law Eep. 1 vol. ; Rice's Eq. Eep. 1 voL ; Bailey's Eq. Eep. 1 vol. ; Dudley's Law & Eq. Eep. 1 vol. ; Cheeves' Law 4; Eq. Eep. 1 vol. ; McMullan's Law Eep. 2 vols. ; MoMullan's Eq. Rep. 1 vol. ; Spear's Law Eep. 2 vols. ; Spear's Eq. Eep. 1 vol. ; Richard- son's Law Eep. 3 vols. ; Eichardson's Eq. Eep. 2 vols. ; Strobhart's Law Eep. 2 vola. ; Strobhart's Eq. Rep. 1 voL PREFACE. ix Tennessee - - - Cooke's Rep. 1 vol.; Haywood's Rep. (cited as 3, 4 and 5 Hayw.) 3 vols.; Martin & Terger's Rep. 1 vol.; Peck's Rep. 1 vol.; Tennessee Rep. (Over- ton) 2 vols.; Yerger's Rep. 10 vols.; Meigs' Rep. 1 vol.; Humphrey's Rep. 8 vols. Vebmont - - - - Aiken's Rep. 2 vols.; Brayton's Rep. 1 vol; Chipman, N.'s Rep. 1 vol.; Chipman, D.'s Rep. 1 vol.; Tyler's Rep. 2 vols.; Vermont Rep. 9 vols.; Shaw's Rep. 2 vols.; Weston's Rep. 4 vols.; Blade's Rep. 1 vol.; "Wash- burn's Rep. 4 vols. VrRQlNiA - - - Call's Rep. 6 vols.; Henning & Munford's Rep. 4 vols.; Leigh's Rep. 12 vols.; Mumford's Rep. 6 vols.; Randolph's Rep. 6 vols.; Virginia Cases, 2 vols.; Virginia Chancery Rep. 1 vol.; Virginia Rep. (Gilmer) 1 vol; Wash- ington's Rep. 2 vols.; Robinson's Rep. 2 vols.; Grattan's Rep. 6 vols. Also the following Irish Books : Ball & Beatty's Rep. 2 vols.; Batty's Rep. 1 vol.; Beatty's- Rep. 1 vol.; Conroy's Rep. 1 vol ; Davies's Rep. 1 vol.; Fox & Smith's Rep. 2 vols.; Gilb. Eq. Rep. 1 vol (contains a few Irish cases); Hayes' Rep. 1 vol.; Hogan's Rep. 2 vols.; Hudson & Bropk's Rep. 2 vols.; Irish Term Rep. 1 vol.; Jones' Rep. 1 vol.; Macnally's Evidence, 1 vol.; Ridgway's Rep. 3 vols.; Schoales & Lefroy's Rep. 2 vols.; Smith & Batty's Rep. 1 vol.; Vernon & Scriven's Rep. 1 vol. The English Books of Evibenoe, Gilbert, Peake, Starkie, Rosooe, Gresley, Matthews, Wig- ram, Wills, Taylor, Tamlyn, Van Heythusen, &c., have also been freely consulted ; and such additions made from these, as were deemed to be useiiiL In the present text of Phillipps's Evidence, we have probably the last edition of his book, wljich we are to expect on the original plan. That plan was to comprise the doctrines of evidence generally applicable to all aptions, in the first volume, reserving those which were more appro- priate to certain kinds of actions, for the second. In our annotations we have not adhered to this division with much care. Whenever we have found that decisions were useful as illustrating a general head, we have used them ; and in this way anticipated the greater part, though by no means the whole of the matter which would, under Mr. Phillipps's arrangement, have fallen in with some division of the second volume. One instance of this will be found in the cases as to the competency of witnesses in actions on bills of exchange, &c. After these notes were partly printed, we received a work compiled by Messrs. Amos &,. Gale, from the materials of Phillipps's two volumes, and later books, in which we perceive, that the part of our plan just mentioned has been pursued under a new arrangement of the general heads of PhilUpps's first volume. Mr. Phillipps himself participated in the arrangement and correction of the work. That also was consulted in our later notes ; and as far as we have been able to o'bserve, about all the matter, and most of the Enghsh cases there added vrill be found in our notes. The above remarks and enumeration of books must be taken with the qualification, that the latest of the books mentioned were not published, and therefore could not be consulted in respect to many, not to say most of the notes, when the latter were printed. So far as books were pub- lished, and could be procured at the time, they were faithfully examined ; and the points of evidence decided, carefully extracted, and arranged under their appropriate heads. The arrear of books on any very valuable head, is believed to be few in number ; and those are stUl fewer which materially affect the existence or the application of any important rule of evidence. The work has been conducted under some disadvantages, which justice to the editors requires should be mentioned. The judicial avocations of the senior editor were so constant, that he originally declined engaging as anything more than a gratuitous contributor to the work, in a smaU degree, his principal motive being the aid in his Nisi Prius duties, to be derived from the business of partial compilation, and an occasional examination and study of the whole as it pro- gressed. Several gentlemen who had undertaken as prinoipaJs in the work, fafling to prosecute, or take any share in it, he went through with the greater part himself] without venturing to make the bookseller any promise as to the time of its completion, or proposing any charge beyond what might operate as a scanty compensation for stationery, and the use of his ofiSce'and library for gentlemen, who might, in their turn, take the place of assistants. The gentleman who finally undertook and persevered in the latter character, being also engaged in the legal profession, and the principal editor, either as judge of the fourth circuit or of the supreme court, he need not say most laborious departments of duties, the progress of the notes has been dilatory, fitful and desultory. These things most be an apology; for mistakes, (and there are doubtless several,) wMch might have been avoided under more favorable circumstances. To obviate erroneous re" ferences, the titles Of cases have uniformely been mentioned, even when dicta alone are cited. The object, in respect to matter, has been, in general, rather to furnish illustrations and distino- tions Iby a short slretch of the case cited, than to repeat the principle which it exemplifies. The reader will better see from this, the degree in which the original case may be pertinent to the 4^eStion he is upon, and though the boolc has, in that way been made larger, it will, in itself come nearer to a general library of cases upon evidence. It was a form which the senior editor thought he found more useful to himself as a judge, and the junior editor in his professional ijBsineiss. The elemental rules of evidence are short, Occupying but a few pages even in this ■larg^t edition of PhOlipps. Those principles have been before the English and American public ever since 1816, when Phillipps was first publfehed in this country, undergoing constant apphojk- •tion in the books oi common-law reports on both sides of the Atlantic. To trace, through such books, the connection hetween cases and their principles, as each question arises in the course of pradtice, is a work of great labor to the lawyer, even in his office. At Nisi Prius it is impoi iible. The expense of purchasing the books which contain the oases is a,)aO considerable. Oi» cibjedt of the editors has been to lighten these burdens, by presenting in connection with tho principle, the manner in which it has been made to act upon cases in the various combinatioii of their circumstances. Yet, after all, this, like other abridgments, must be read, in general, as a mere book of refer- ence I for, in abridgment, as Lord Coke has shoWn in several places, the most careftil compSer froita numerous oases, must many times omit material and turning circumstances. This, Lord Goke shows of Brooke, (vid. Palmer's Case, 5 Eep. 25,) and Fitzherbert, (vid. Mary Portingtotfs Case, 10 Id. 41.) And again he mentions a case in which Fitzherbert, Statham, and Brooke, all disagreed in stating. (Vid. PUford's Case, 10 Eep. 118.) Each lime he admonishes the read» to be cautious in finally relying upon abridgments even of these learned and approved authois. In the preface to his 4th vol. pp. x and xi, he says, "This I know, that abridgments, ia many professions, have greatly profited the authors themselves'; but, as,%hey are used have brought nosmfdl prejudice to others; for the advised and orderly readiug over of the books at large ift Bitdi a manner, as elsewhere I have pointed at, I absolutely determine to be the right way :t«> elidraring and perfect knowledge ; and to use abridgments as tables ; and to trust only to the books at large ; for I hold him not discreet, that will seotari rivulos, when he may petere fimtos. Attd certain it is, that the tumultuary reading of abridgments doth cause a confused judgment, and a broken and troubled kind of delivery of utterance." We cau deny, in regard to Uiese notes, none Of the above assertions, except the first ; and that only so far as it may be under- stood in a pecuniary sense. In regard to local or temporary practice, or matters Testinig merely in discretion, (and the law Ofiemdence has its share of all these,) no mere 'compilation can operate as a steady guide. It ought never to be exclusively relied upon. Such is the law of putting off trials for the absence Of witnesses, and the forms of affidavits for that purpose, with the amount of costs to be paid. Such also are the forms of proceeding, and the rules of decision upon attachment against witnea- •ea, and the like, which we have considered in their proper places for the sake of general iil- itruction. NOTICE TO THE READER. In preparing this Tenth Edition of my Treatise on the Law of ETidence, I have received material assistance from my friend Mr. Arnold ; who has -given to the Work the greater part o^ the leisure time that could be spared from his onerous official duties. Some great and memorable changes in the Law of Evidence have been made within a few years, and since the last Editon. First, by Lord Denman's Act, which put an end to objeotioM on the ground of interest — excepting only parties actually on the record, or those who were sub- stantially parties to a suit ; and lastly, by Lord Brougham's Act, which has enacted, that even parties on the record shall be admissible witnesses. The constitution of the County Courts, with their new practice, prepared the way for this last change, and made It unavoidable, in all tho Courts of Common Law. Nearly the whole of the first Volume of this Work had been composed upon the basis of Lord Denman's Act, as settling the general rules of law on the subject of competency of witnesses, when notice was given of the change contemplated by Lord BrouOHAM in his intended Act This circumstance has caused some delay in the present publication. The general plan of this Work is the same as before. But parts have been newly arranged, «nd more than one Chapter have been entirely remodeled. Extensive additions have been made by my Coadjutor. All the new decisions and new statutory provisions, that have ap- peared since the last Edition, have been inserted by him in their proper places, and incorporated with the text. Much new matter has been introduced, entirely composed by him, and forming Sections of Chapters, upon the following subjects: Of Admissions under a Judge's Order; Of Matters judicially noticed ; Of Evidence in Matters of Opinion ; and Of Admissions on the Record. The Introductory Chapter, also, and the Addenda to both Velumes are his : and ho has taken great trouble in preparing the Tables of Contents and the General Index. It has been my chief business to superintend and direct the progress of the Work ; to review •nd rejudge, and to make any alterations that might be thought necessary. a M. P. TOBQUAT, January, 1852. OTRODUCTORY CHAPTER. While this work has been going through the press, very important alterations and, as most will acknowledge, great improvements in the law of evidence have been effected by statutes passed in the session of 1851. It is proposed in this introductory chapter to specify the various en- actments that have been thus recently made, and to point out in what manner, and to what extent they affect the various parts of the law of evidence as set out in the following work. By one of these, 14 & 15 Vict. c. 99 (The Law of Evidence Amendment Act), the spirit and principle of Lord Denman's Act,(l) whereby the in- (1) 6 & 7 Viet. c. 85, infra, Chap. 4. Lord Denman's Act (6 and 1 Vict c. 86), was passed in Aug., 1843, declaring that no person ofiFered as a -witness shall hereafter be excluded by reason of incapacity from crime or interest ; with a proviso, that the act should not render competent the parties to the action or proceeding, nor any person in whose immediate and individual behalf the same is brought or defended, nor the husband or wife of such persons respectively ; and that the act should not repeal or affect the statute for the amendment of the laws with respect to wills. Our code of 1848 (Laws of New York, 560) declared briefly, that no person offered as a witness shall be excluded by reason of his interest in the event of the action, with a proviso, that this general provision should not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action assigned for thepv/rpose of making Mm a witnesB. §§ 361, 362. This last italicised clause was repealed in July, 1851, and the following eentenceg substituted in its place : " When an assignor of a thing in action or contract is examined as a witness, on behalf of any person deriving title through or from hhn, the adverse party may offer himself as a witness to the same matter in his own behalf, and shaE be so received. But such assignor shall not be admitted to be examined in behalf of any person deriving title through or from him against an assigpee, or an executor or administrator, unless the other party to such contract or tiling in action Vhom the defendant or plaintiff represents, is living, and his testi- mony can be procured for such examination, nor unless ten days' notice of such intended exa- mination of the assignor, specifying the points upon which he is intended to be examined, shall be given in writing to the adverse party." Our code also provides, that a party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties; and for that purpese may bo compelled, in the same manner, and subject to the same rules of examination as any other vrit- ness, to testify, either at the trial or conditionally, or upon commission. Code of 1848, § 344; Amended Code of 1861, § 390. And a party so examined by an adverse party may be examined xiv Alterations in the Law of Evidence. competency of persons to give evidence in a cause in the result of ■which they were interested had been abolished, have been carried out to the fullest extent. Actual parties to the record, and persons in whose direct and immediate behalf an action was brought or defended, were excepted from the operation of Lord Denman's Act ; and they, therefore, still re- mained incompetent as witnesses, unless in the rare instances where they were divested of any interest in the suit. But this exception has now- been repealed by the new st'atute,(l) which enacte, that in all cases parties to a suit are to be admissible witnesses ;(2) but it is provided that no per- son charged with any criminal oflfence shall be competent to give evi- dence for or against himself, and that in criminal proceedings neither husbands nor wives are competent to give evidence for or against each other ;(3) nor do the provisions of the act apply to any proceedings in- stituted in consequence of adultery or to any breach of promise of mar- riage.(4) This statute has carried out the, principle established in the County Courts ;(5) the experiment there made of admitting parties and their wives having, it appears, been found to answer. (1) Section 1. (a) Section 2. (3) Section 3. (4) Section 4. (5) Under the 9 & 10 Tict. c. 95, infra, p. 9T. oa hia own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not respoBsive to the inquiries put to him by the adverse party, or necessary to explaiiB or qualify his answers thereto, or discharge when his answers would charge himself, such ad- verse party may offer himself as a witness on liiis own behalf; in respect to such new matter, «nd must be so received. Code of 1848, § 349 ; Amended Code of 1851, § 395. The same pro- Vision applies to a person for whose immediate beaieflt the action is prosecuted or defended. Id. § 396. The code, as amerided in 1849, permitted a party to be examined on behalf of his co- »laintiff or co-defendant, provided the examination thus ta;ken should not be used on behalf of ttie party examined, and that whenever, in the case mentioned in the previous sections, 390 and $91, one of several plaintiffe or defendants who were joint contractors, or united in interest, waa «samined by the adverse party, the other of such plaintiffs or defendants might offer themselves as witnesses to the same cause of action or defence, and ^ould be so received. § 391. Sosra difference ol opinion arising under this provision of the code (10 Barb. 112, 5 How. Pr. E. 401, md oases cited in Beai v. Pinch, 1 Kernan R. 128), the following was inserted in its place in 1851 : "A party may be examined on behalf of his co-plaintiff, or of a oo-defendamt, as to ai^ matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, imd aa to which a separate and not joint verdict or judgment shall (may) be rendered. And he may -toe compelled to attend in the same manner as at the instance of an adverse party, but the exa- jbtijtation thus taken shall not be used in behalf of the iporty examined, unless he is examined ait the instance of the adverse party.'' § 39t. Under this provision, it has been held that in an action for tort against two or more, each defendant is a competent witness for his co-defendant. 1 Kernan, 1j28. But it seems that he could not give evidence affecting simply the amount of the dttmages, since the judgment in isuch cose oould not be entered for od« sam against one defend- HDit^ and for another sum against onothac Parties to he Adknissible Witnesses. xv The above-mentioned enactments are contained in the following sec- tions: Section 2. " On the trial of any issue joined, or of any matter or ques- tion, or on any inquiry arising in any suit, action or other proceeding in any court of justice, or before any person having by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action or other proceeding. Section 8. " But nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indict- able offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to crimin- ate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her hiisband. Section 4. " Nothing herein contained shall apply to any action, suit proceeding, or bill in any court of common law, or in any ecclesiastical court, or in either house of Parliament, instituted in consequence of adultery, or to any action for breach of promise of marriage. Section 5. " Nothing herein contained shall repeal any provision con- tained in chapter twenty-six of the statute passed in the session of Parlia- ment holden in the seventh year of the reign of King William the Fourth awd the first year of the reign of her present Majesty,"(l) (1) The Wills Act. This act was also excepted from the operation of Lord Denman's Act, infra, Chap. 4, pp. 21, 28. The above section (§ 397) was amended in 1862, so as to read as foUowfl : "A party may be examined on behalf of his co-plaintiff or of a co-defendant, as to any Wiattjsr in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and ag tp which a separate and not joint verdict or judgment can be rendered. And he may be compelled tp attend in the same manner as at the instance of an adverse party, but the examination ^f^ taken shall not be used in behalf of the party examined. And whenever, in the case meHi- tioned in sections 390 and 391, one of the several plaintiffs or defendants who are joint coil' tractors, or are united in interest, is examined by the adverse party, the other of such plaintiffli or defendants may offer himself as a vdtness to the same cause of action or defeitqe, andsJ^aU be so received." Session Laws of 1852, page 662. The Law of Evidence Amendment Act (14 and 15 Vict. 99), which was passed in August J8B1, makes the parties to the action or proceeding as weE as the parties in interest, competent >7itnesses and compellable to give evidence ; 1)i;t decides that a person charged with a criminal offence shall not be compellable to give evidence for or against himself or herself, and th)^ ^ther htt^band nor wife shall be Qomtpetent or compeUabla to giye evidence, far, or agaioot tbe xvi Alterations in the Law of Evidence. Before the passing of this statute, the grounds of incompetency to give evidence as a witness, as reduced by Lord Denman's Act, had been classi- fied under three heads ; but it may now be convenient to classify the persons who are incompetent to give evidence as follows : — 1. Every person who labors under a defect of understanding ;(1) or, 2. A defect of religious principle.(2) 3. Any person charged with the commission of any offence, the subject o^ an indictment, or punishable by summary conviction. 4. A husband or wife for or against each other, in any criminal pro- ceeding. 5. The parties to any proceeding instituted in consequence of adultery, or to any action for breach of promise of marriage, or the husbands or wives of such parties. The general effect of the new statute will be to render the parties to all civil proceedings, and, as it seems, their wives, competent and compellable to give evidence, except in the instances stated in the last-mentioned class : in other words, it abolishes the last vestige of the old rule as to incom- petency by reason of interest ; it being upon that ground only that parties to a suit were considered incompetent to give evidence.(3) (1) Infra, Chap. 2, p. 9. (2) Infra, Chap 3, p. 14. (3) See 'Worrall v. Jonea, '7 Bing. 395, infra, p. 36. other in any criminal proceeding ; that the act shall not apply to any action, suit, or proceeding instituted in consequence of adultery, or to any action for breach of promise of marriage ; and that it shall not repeal or qualify the act in relation to the proof of wills. Our statute, just passed, renders the parties to an action or proceeding competent witnesses, hut does not contain the same exceptions as are found in the English statute, nor any express exception where the opposite party is Uving and capable of giving testimony in the action or proceeding. It takes its place appropriately in the Code of Procedure, as section three hundred and ninety-nine, and is in these words : " A pa/rty to an action or proceeding, may ie eaca/mined as a wilness in his own lehalf, ike saine as any other witness ; Tmt such examination shaU not be had, nor shaU any other person for whose im- mediate ienejit the same is prosecuted or defended ie so examined, unless the adverse party or person in interest is living, nor where the opposite party shall 6e th^ assignee, administrator, executor or legal representative of a deceased person, nor unless ten days' notice (if the action be in a cowt of record, and in all other cases four days' notice), of such intended examination of the party or person interested specifying the points upon which such party or person is intended to be examined, shaU be given in writing to the adverse party, except that in speciai proceedings of a summary nature, sttch reasonable notice of such intended examination shaU be given as shall be prescribed by the court or judge. And when notice of such intended examination shall be given in an cu>tion or proceeding, in which the op- posite party shall reside out of (lie jurisdiction of the cowrt, such party may be examined by commis- sion issued and executed as now provided by law ; and whenever a party or person in interest has been examined under the provisions of this section, the other party or person in interest may offer him' sdf as a witness in his own behalf, and shaU be so received. When an assignor of a thing in action •r contract is examined as a witness In behalf of any person deriving title through or from him the adverse party may offer himself aa a witness to the same matter in his own behalf) and shall be so received, and to any matter thai wiU discharge him from any liability thai (lie testimony of (he assignor tends to render him liable for. But such assignor shall not be admitted to be examined Defendants in Criminal Proceedings. xvii The fourth chapter, therefore, of the ensuing work, which treated of incompetency by reason of interest, will be principally affected by the enactments under consideration. The first section of that chapter treats of incompetency considered with reference to parties individually named in the record in civil proceedings. The incompetency of all such parties is now removed, with the exception of proceedings instituted in consequence of adultery, or of actions for breach of promise of marriage. In these excepted cases the parties still remain incompetent. In an action for criminal conversation, therefore, neither the plaintiff, nor his wife, nor the defendant, will be competent to give evidence. The policy of such a rule is obvious. But it would seem, according to the strict interpretation of the statute, that in an action for goods sold and delivered, brought against a husband for necessaries supplied to his wife, where the defence is, that the wife has left the husband and is living in adultery,(l) the defendant would be competent and compellable to give evidence ; as such an action is not a proceeding instituted in consequence of adultery, nor a criminal proceeding.(2) (1) See Ham v. Toovey, 1 Selw. N. P. 281 ; Hardie v. Grant, 8 a & P. 612 ; Emmett v. Nor- ton, Id. 506. (2) 14 & 15 Yict. 0. 99, §§ 3, 4, sapro. In behalf of any person deriving title through or from him against an assignee, or an execator or ad- . ministrator, unless the other party to such contract or thing in action whom the dqfepdant oc plaintiff, represents, is living, and his testimony can be procured for such examination, nor unless at least ten , days' notice (if the action be in a court of record, and in all other cases lour days' notice), of such intended examination of the assignor, specifying the points upon which he is intended to be ex- , omined, shall be given in writing to the adverse party," Session Laws of N. Y. 1857, ch. .353,. aa amended in 1858. The itaUoised portion of this section is new; the rest of it stands as it was passed in 1851,'ex-, cept the line included in brackets prescribing the requisite notice inserted in 1858. And under that part of the section it seems that a notice is not required where the defendant is himself a party to the contract sued on. If the defendant is sued on his own contract by an assignee ol. the other contracting party, he knows that the original owner of the demand is, like everybody else who has any knowledge respecting the controversy, a competent witness ; • and the defend- . ant is moreover supposed to know all the facts of the case, and must take care to be present and see that the cross-examination is properly conducted. But if he was a stranger to the original contract, he needs a notice and time to look up the original contractor as a witness to repel any untrue testimony he may suspect will be given against him by the original owner of the demand sued on. If the original contractor, whose rights the defendant represents, be dead, the statute assumes that injustice may be done by allowing the origmal contractor represented by the plain- tiff to be sworn, and therefore it excludes him altogether; and so where the attendance of ths original party though living, cannot be procured. Per Denio, J., in Vassear v. Livingston, 3 Keman R. 253. The statute making the parties to the action or proceeding competent witnesses proceeds upon the same theory, namely, that each shall be allowed to give testimony for himself where the op- posite party has the opportunity and is capable of' meeting him on the witness' stand. Perhaps the language ia not such as to carry this intent into effect in every case. For instance, the op- posite party or person in interest may le Uvmg, and insane or otherwise incapable of giving testi. Vol. I. 2a xviii Alterations in the Law of Evideneer' In an action for breach of promise of marriage, also, neitlier the plam- tiff nor the defendant will be competent to give evidence. In the some- what analogous action brought by a father for seducing his daughter, the daughter herself was always considered a competent witness, as she did not stand within the technical rule of exclusion, not having any- pecuniary interest in the result of the cause. In such an action the defendant also, it seems, will now be competent and even compellable tO' ^ve evidence. It seems unlikely that, after the new act has come into operation, any Question can ever arise as to the admissibility of entries made by a person who might not have been a competent witness. The second section of the fourth chapter treats of the rule of incompe'- tency considered with reference to parties prosecuting for offences, and to- defendants in criminal proceedings. The law, as explained in this section, remains unaltered by the new statute. As heretofore a prosecutor will be' competent to give evidence, and there seems now to be no doubt that an informer will be so ; and a defendant in a criminal proceeding, being a person " charged with the commission of an indictable offence, or an of- fence punishable on summary consideration,"(l) will in general, be incom- pifetent to give evidence. (1) 14 & 15 Tiot. c. 99, § 3, supra. naioiljr; and here upon the general principle on wMich th6' stetlite 'is founded, both parties stoiilil' bs 'excluded from the privilege of giving testimony in the cause. Under the statute of 14 & 15 Tict., it has been held that a wife is not a competent witness for her husband, who is a party to the suit. The act in terms applies only to the parties to the action ; and Lord Denman's Act did not permit either the husband or wife to testify for or agaihst the other. And although the third section of the statute of 14 & 15 Tiot., contains an express' provision that the husband and wife shall not be competent or compellable to give evidence against each other in any criminal proceeding, it has been determined that this does not by im- plication render them competent witnesses for or against each other in a civil action. St&plet6n V.'-Orofts, 83 Eng. Com. Law Rep. 365 ; S. C, 18 Adol. & Ellis (N. S.) 361, decided in 1852. On' the same principle of construction, the wife cannot give testimony for or against her husbanfl, ndrithe husband for or against the wife, under our statute. The common-law rule ex- cUwling such a' witness from giving testimony, is ' not founded upon the interest of the ■witness, but upon reasons of public policy, designed to prevent the interruption of do- urestio peace and harmony and the destruction of that unreserved confidence which the mar- riage relation implies and requires. Hasbrook v. Vandervoort, 4 Sand. Sup. Court E. 696 ; S. C, 6'8eld. 153 ; 2 Id. 340 ; 5 Barb. 156; 8 Paige, 242 ; 3 Sand. Ch. 15. And hence the common^ lawrole, rendering the husband and wife incompetent witnesses for or against each other, must pBkvail until it is set aside by an afllrmative statute ; and ' our recent statute does not in terms declare them competent witnesses for or against ' eabK other. See Smith v. Smith, 15 How. Pr. 165 ; 26 Barb. 612. By allowing a, party to an action or proceeding to be examined on his owii behalf, without excepting any form or species of action, it seems to permit the husband to give testimony against hie wife, and the wife against the husband,' where they Are adverse parties to the action. Never-' theless,! a party to an action or proceeding can only be examined as a witness in his o^n "behaij;' ttfrts(m«fa«onv'o«A«»''Wi<9ie»'/iBiia'E(illde'tl6'ollhleJyfttlleSS'6tteidinginth6TeMbti' of h\isband"'6'i' Defendants in Oriminat Proceeding's. xS The new statute does not say that no person, -wlio in any criminal pto- ceeding is charged with the commission of any indictable offence, shall be competent to give evidence, but merely enacts that its provisions rendering competent parties to a suit in general, shall not render conipetent persons so charged. One of several defendants, therefore, in a criminal prosecution, majr, still as before, be rendered competent, by a nolle prosequi being entered as to' him, or by any of the other methods pointed out by that section. The third section of the fourth chapter treats of the rule of incompeten- cy, considered with reference to persons in whose behalf a civil action is brought or defended. Such persons who were exempted from the opera- tion of Lord Denman's Act, as being substantially the parties to the suit, are now in every instance rendered competent to give evidence. The fourth section of the fourth chapter treats of the rule considered with reference to the husband or wife of an incompetent party. The new statute does not in terms say that the wives of parties to civil proceedings shall be competent to give evidence, as was expressly enacted in the stat- ute for establishing the county courts ;(1) it merely enacts, that " parties" to an action shall be competent, and that nothing therein " shall, in, any criminal proceeding, render any husband competent or compellable (i^o give evidence for or against his wife, or any wife competent or compella- ble to give evidence for or against her husband."(2) (l)„9 li.lO Yiqt-,p- 95, § S3„mfra, p. 97. (2) 14 & 15 Vict. c. 99, § 3, supra. wife to the plaintiff or defendant would be allowed, to testify in the action, it is not clear that tha^ statute was designed to abrogate the common-law rule of evidence, even where the husband and wife are both parties to the suit. See Smith v. Smith, sv/pra. This construction is favored by the English decisions just referred to, as well as by a recent EngUsh statute (16 & 17 Vict. c. 83) ; by which husbands and wives are |ex;pressly rendered competent and compellable, in all civil cases, to give evidence " on behalf of any or either of the parties to. the said suit, action or proceeding "-^a provision that does not extend to criroinal, cases, nor to cases of adultery, nor render either husband or wife competent or compellable to disclose any (^OTOWMf^icaijon njade to him or her by the other during marriage. , , , The law relating tp the competency of, witnesses has been for several years and.is now uiic^^r-^ giiing a change in many of the states similar to that which has taken place in England and m N^w Tork^a change by statutes that are freiiuently amended and modified by decisions codt . staiiB-g thern. , These statutes and decision^,, which are of easy and ready reference to the practi- tioner in each of the states, have not yet assumed a settled and permanent character ; and cannot, therefore be advantageously ^pd minutely.stated in a work of this kind., Tlie notes that^follow wUl,serye, to show. the, tendency of legislatipu .qn, the subject, ,wi,thpiit assuming to give the preciss.state of the statutory law in the several states, at -t , ,|., .„,. ,Coi™EOTicpT..— It was declared in this state by statute in 1848, that "No person sbalj, ,b,e ^a-| qual^^^ as p v?itness in any suit_ or proceeding at lavv, or in equity, by reason of his .interest in, the event of the same, as a party or otherwise ; .qr by reason of hia conviction of a criijie j ibrit . Buphji^terest or, conviction lua^ be shown fqrthe, jpurpppa of affecting, hi?, credit." .In th^^ppr foll,9wij[igi,jtjvas enao|ed.th^t .so much^pf the above section (141at) as authorizes a party to testi^ in any criminal proceeding, "be repealed. .» XX Alterations in the Law of Evidence. The inference to be drawn from the construction of the statute by itself, would be that in the cases not excepted from its operation, — namely, in all civil proceedings (unless such as are instituted in consequence of adul- tery), (1)— the husband or wife of a party would be competent to give evi- dence. But on the other hand, considering that the incompetency of husbands or wives, rests not entirely on the ground of identity of interest, but also upon a common law principle of public policy,(2) it may possibly be doubtful whether the statute will be construed to have the effect of rendering a wife a competent witness for or against her husband in all civil proceedings. In the case before supposed,(3) of an action against a husband for necessaries supplied to his wife, where the defence is the adul- tery of the wife, although the defendant may be competent to give evi- dence, it seems very questionable whether the wife would be permitted to be a witness, either to establish the fact of adultery or to contradict it.(4) But it would be premature to offer any further opinion or argument upon this part of the statute until some judicial decision shall have been pro- nounced upon it.(5) (1) 14 & 15 Vict. c. 99, § 4, supra. (2) See infra, pp. 77, 78. (3) Supra, p. x™. (4) As to the reasons for excluding tlie evidence of husband and wife to prove non-access^ see infra, p. 87. (5) Since the above observations were in type, the stat. 14 & 15 Tict. u. 99, has come into operation. The first case in which the parties were examined under it was Hariison v. Dunn (Westmr. Sittings, Q. B., Michaelmas Term, 1851, Nov. 4), an action for the keep and main, tenance of the defendant's child. After both the plaintiffand defendant hadgiven their evidence, the wife of the defendant was tendered aa a witness on his behalf, and objected to ; but Erie, J., ruled she was a competent witness under the statute, as the exception as to criminal cases showed the intention of the legislature to be that a wife should be a competent witness for her husband in civil proceedings. The statute of 1848 also permitted a party to any civil action or proceeding, whether at law or in equity, to compel any adverse party or person in interest to appear and testify therein in the same manner and subject to the same rules as other witnesses. Under the above statute, the wife has been held a competent witness for the plaintiff, her hus- band. Merriam v. Hartford & N. H. Railroad Co., 20 Conn. E,. 354, 363. The interest of tlio party to the suit, which the law expressly permits to be proved, goes only to his credibility (Cowles V. Bacon, 21 Id. 451); but as the statute provides expressly that it shall not apply to the execution of last wills and testaments or conveyances of real estate, quere, whether the wife of a devisee being a subscribing witness, is competent to prove its execution? Fortune v. Buck, 23 Conn. R. 1. Vermont. — The statute of this state is substantially the same as that of Connecticut, rendering all parties and persons competent and compellable to testify ; and providing that the same shall not affect the attestation of wills or other instruments, nor any suit ponding. See statutes of 1852 and 1853. In an action against the estate of a deceased person, the deceased and not his representative is regarded as the party to the action, for the purpose of construing the statutes cited. Kimball v. Estate of Baxter, 1 Wms. G28. Ohio. — ^The act to establish a Codo of Civil Procedure was passed March 11, 1853, and took effect in this state on the first of July following. It is very similar to the Codo of Now York. Admissions ly Parties to Suit. ' xxi In criminal proceedings, neither the wife nor husband of the accused, party is competent to give evidence for or against the accused. It may be advisable, however, to consider a question which may possi- bly arise upon the construction of the statute under notice, as to how far it may affect the reception of admissions made by parties to a suit. This subject is treated of in the tenth section of the eighth chapter of the fol- lowing work. In the case of The Queen agt. The Inhabitants of Adderbury Bast,(l) which was an indictment against the inhabitants of a township for not re- pairing a bridge, it was contended that the declarations of some of the in- habitants, which were offered in evidence, were not admissible, as they had been rendered competent witnesses by the statute 3 and 4 Vict. c. 26. But the -court held, that the declarations were admissible, and as it ap- pears, principally upon the ground that the inhabitants, though rendered competent, were not compellable to give evidence. If this were the only ground upon which the admissions of a party were receivable, namely, that he could not be compelled to give evidence, it would follow that since the statute 14 and 15 Vict. c. 99, § 2, makes par- ties not only "competent," but also "compellable to give evidence," their admissions would no longer be receivable in evidence. But, it is sub- mitted, that this is not the only ground of the reception of such evidencej the principle on which it is received being founded, as hereafter stated' chiefly on the reasonable presumption in favor of tho truth of a statement, when it is against the interest of the party who makes it.(2) Admissions (1) 5 Q. B. 18T, infra, p. 57. (2) In E. V. Adderbury, ui supra, 196, Patteaon, J., says, " Every inhabitant may, though a defendant, be a competent witness by statute ; but it does not follow that the crown would compel him to give evidence against his own interest. At all events he is a defendant on the record ; and what a defendant on the record says is evidence against him in every ease.'' "Section 310. No person shall be disqualified as a witness, in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime ; but such interest or conviction may be shown for the purpose of affect- ing his credibility." Section 311 declares that the above section shall not affect existing laws, relating to the settlement of estates of deceased persons, infants, idiots or lunatics, or the exe- cution of wills and testaments, or conveyances of real estate, or any instrument required by law to be attested. Sections 312 and 313 allow a party to call an adverse party or person in interest as a witness, and provide that no party shall be a witness under section 310 where the adverse party is the representative of a deceased person, in relation to matters that took place prior to his death. Section 314 declares who are incompetent : 1st. Persons of unsound mind. , 2d. Children under ten years of age, incapable, &o. 3d. Husband and wife for or against each other. 4th. An attorney to disclose confidential communications. 5th. Clergymen or priests to disclose confessions. Section 316 provides that if a party offer himself as a witness, that shaU be deemed a waiver xxii .Alterations in the Jjaw of Evidence. made by an agent in the scope of Hs authority, are receivable in eyidence against his principal, although such agent might unquestionably be called as a Avitness by the opposite party. It' seems, therefore, there can be no reasonable doubt but ^hat the ad- missions of a party will still be receivable in evidence against him, not- withstanding he may now be compelled to give evidence againal; his own interest. , Tlie sixth section of the Law of Evidence Amendment Act empowers the common-law courts to compel the inspection of documents in all cases in which equity would grant a discovery. The section is as follows : — ''Whenever any action or other legal proceeding shall henceforth be pending in any of the superior courts of common law at Westminster or Dublin, or the court of Common Pleas for the county palatine of Lancas- -ter, or the Court of Pleas for the county of Purham, such court and each of the judges thereof may respectively, on application made for such pur- pose by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such opposite party relating to such action or other legal proceeding, and, if necessary, to take examined copies of the same, or to procure the same to be duly stamped, in all cases in which previous to the passing of this act a discovery might have been obtained by filing a bill or by any other proceeding in a court of equity at the instance of the party so making application as aforesaid to the said court or judge." of the incapacity of such clergyman, priest or attorney, in respect to the subject matter to whicb he testifies. Massachusetts. — The act of this state, relating to the proceedings, practice and rales of evidence in actions at la-w, was passed in May^ 1852, taking effect on the first Monday of August fdlowing. Section 60. " No person offered as a witness shall be excluded from giving evidence, either in person or by deposition, in any proceeding, civil or criminal, in any court, or before any person hia.ving authority to receive evidence, by reason of incapacity from crime or interest ; but every person so offered shall be admitted to give evidence, notwithstanding he may have an interest in the matter in question, or may have been previously convicted of any offence ; but this act shall not render competent any party to a suit or 'proceeding who is not now by law rendered competent, nor the husband or wife of any such party. But nothing herein contained shall ho deemed applicable to the attesting witnesses to any wiU or codicil. And the conviction of any crime may be shown to affect the credibility of any person testifying." The following sections allow each party to interrogate the other on interrogatories, which are required to be answered in writing and on oath. Under the above statute, an executor or administrator is not competent to testify as to matters known to him before his appointment, not having released his right to recover costs, nor been released from his liability for them, as provided for by a previous statute. Wood v. Gannett, 4 Gray (Mass.) 450. New Jersey. — Parties in civil actions may be called and sworn by the opposite party, on the trial or on a commission, except where the action is brought to recover a penalty or enforce a forfeiture. Acts of 1849 and 1852. The interest of other persons in the event of an action or proceeding does not render them incompetent; co-defendants not jointly interested may b9 sworn for each other. The examination of an opposite party may be made by interrogatories, Fbreign and Oolanial Judgments, l&c. xxiii ■The powers given by this enactment are an important and useful extension of those previously exercised by the common-law courts, which are treated of in the fourth chapter of the second volume of this work ; and they will obviate the necessity that was sometimes experienced of staying proceedings until an application could be made to a court of equity. The seventh section of the same statute renders foreign and colonial acts of state, judgments and the like, provable by certified copies, without proof of the seal or signature thereto, or of the judicial character of the person signing the same. The section is as follows : " All proclamations, treaties, and other acts of state of any foreign state or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any court of justice in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such court, may be proved in any court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, either by examined copies or by copies authenticated as hereinafter mentioned ; that is to say, if the docu- ment sought to be proved be a proclamation, treaty, or other act of state, the authenticated copy, to be admissible in evidence, must purport to be sealed with the seal of the foreign state or British colony to which the original document belongs ; and if the document sought to be proved be a judgment, decree, order, or other judicial proceeding of any foreign or whieh must be answered under oath. Acts cited above and act of 1855 ; Elmer's Digest, by ^ixon, 887, ,889. Mississippi. — Tlie Revised. Code of this state, published by authority in 1857, has the fpUov- ing provisions : " Section xvii, Art. 190. No person, whether a party to the suit or otherwise, shall be inqoinr; petent to give evidence iu any suit at law or in equity, by reason of any interest in the result thereof prin the record, as an instrument of evidence in other suits; but the deposition of such interested witness shail not be read in evidence ; »nd the court or jury shall give such weight to the testimony of parties and interested witnesses, as in view of the situation of the witness and other circumstances, it may be fairly entitled to. Any party may, by subposna, as in othgr cases, compel any .other party to the suit to ^ppe*r and give evidence. Frovided, that no person shall be a witness iu any suit, by or against himself, to establish his own claim to an amouot exceeding fifty dollars, against the estate of a deceased person. ■!' Art. 191. No conviction of any person for ^my offence, except perjury, and subornation of perjury, shall disqualify such person as a witness, but such conviction, may be given in evidence to impeach his credibility. UTo person convicted of perjury or subornation of perjury, shall afterwards be a competent witness in any case, although pardoned or punished for the same. I' Art 192. All negroes, mulattoes, Indians, and persons of mixed blood, descended from negro, or negro and Indian ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be incapable of being witnesses in any case whatever, except for or against each other. /■' Art. 193. In criminal cases, huabapd and wife shall be competent witnesses for each other.'l Go.de, page 510. Wisconsin. — Members of public corporations, such as towns, cities, road and mutual insuranoa companies, are competent witnesses. Either party in civil suits may call his adversary, and if xxiv Alterations in the Law of Evidence. colonial court, or an affidavit, pleading, or other legal document filed or deposited in any such court, the authenticated copy, to be admissible in evidence, must purport either to be sealed with the seal of the foreign or colonial court to which the original document belongs, or, in the event of such court having no seal, to be signed by the judge, or if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement, in writing, on the said copy, that the court whereof he is a judge has no seal ; but if any of the aforesaid authenticated copies shall purport(l) to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in eviden.ce in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement." This enactment will greatly simplify and. facilitate the proof of foreign judgments and other documents, which subject is treated of in the second volume of this work. Chap. 5, Sect 4. The eighth secfion of the statute renders apothecaries' certificates admissible without proof of the seal of the corporation. It is as follows : " Every certificate of the qualification of an apothecary, which shall purport to be under the common seal of the Society of the Art and Mys- (1) Seejjosi!, Vol. 11. he fail to appear may himself be sworn as a, witness. A party so called by his opponent may be examined on his own behalf in respect to any matter pertinent to the issue ; and in respect to new matter not gone into by the adverse party, the party oaUing him may be examineiJ. K. S. of "WisGOUsin, 622, 523. The aidmission of a member of a corporation aggregate is not admissible against the corpora- tion ; but such member may be sworn as a witness against the corporation, not being himself named as a party to the action. Books of account containing original entries may be verified in certain eases by a party to the suit, or by a clerk or agent, and received as prima facie evidenca of the charges there. Pages 526, 527. The Code of Procedure adopted in Wisconsin, in the fall of 1866, is a transcript from the Code of New York, the provisions of which are noticed above. Minnesota. — All persons are competent witnesses who are not expressly rendered incompe- tent ; neither parties, nor persons interested in the event of an action or proceeding are excluded, nor persons convicted of crime ; nor is any one rendered incompetent aa a witness on account of his religious belief. Children under ten years of age, who are actually incapable, and persons of unsound mind, or who are intoxicated, are incompetent to testify. Besides the above, hus- band and wife are not competent for or against each other, except with the other's consent ; nor ■can either, during the marriage or afterwards, without the consent of tlie other, testify in relation to any commuaication made between them daring the marriage. Communications made to an attorney, clergyman or priest, to a physician or surgeon, or to a public officer, in their official capacity, are also privileged, and may not be disclosed. A publio <)£Boer is prevented 1^'om making disclosure only when the publio interest would suffer by dis- doaure. Statutes of Minnesota, 418, &o. See, also, tlie late code of that state, closely resembling that of Now York. Accounts may be proved as in Wisconsin. Proof of Documents. xxy tery of Apothecaries of the City of London, shall be received in evidence in any couH of justice, and before any person having by law or by con- sent of parties authority to hear, receive and examine evidence, without any proof of the said seal or' of the authenticity of the said certificate, and shall be deemed sufficient proof that the person named therein has been, from the date of the said certificate, duly qualified to practice as an apothecary in any part of England and Wales." Previously to this statute, the seal of the Apothecaries' Company required to be proved. The ninth section of the statute renders documents which are admissible in England or "Wales, without proof of the seal or signature, equally admissible in Ireland. The tenth section renders documents which are admissible in a similar manner in Ireland equally admissible in England and Wales ; and the eleventh section renders documents so admissible in England, Wales or Ireland, equally admissible in the colonies. The twelfth section relates to the proof of registers of British vessels, and renders them, and certificates of registry, admissible as prima facie evidence of their contents, without proof of the signature thereto. It is as follows : " Every register of a vessel kept under any of the acts relating to the registry of British vessels may be proved in any court of justice, or before any person having, by law or by consent of parties, authority to hear, receive and examine evidence, either by the production of the original or by an examined copy thereof, or by a copy thereof purporting to be cer- tified under the hand of the person having the charge of the original, and which person is hereby required to furnish such certified copy to any per- son applying at a reasonable time for the same, upon payment of the sum of one shilling ; and every such register, or such copy of a register, and also every certificate of registry, granted under any of the acts relating to the registry of British vessels, and purporting to be signed as required by law, shall be received in evidence in any court of justice, or before any Iowa. — Every human being of sufficient capacity to understand the obligation of an oath, is a competent witness in all eases both civil and criminal, except as herein otherwise declared. But an Indian, a negro, a mulatto or black person shall not be allowed to give restimony in any cause wherein a white person is a party. Code of Iowa, § 2388, Facts which have heretofore caused the exclusion of testimony, may stiU be shown for the purpose of lessening its credibility. § 2389. A person who has a direct, certain, legal interest in the suit, is not a competent witness unless called on for that purpose by the Opposite party, as hereinafter provided. § 2390. Neither the husband nor wife can be a witness against the other, except for crime committed against him or her; but in criminal prosecutions they may be witnesses for each other (§ 2391) ; nor can they ever be called upon to reveal communications made by one to the other during the continuance of the marriage relation. § 2392. Confidential communications made to an attorney, counselor, physician, surgeon, minister of the gospel, or priest, in the proper discharge of their duties, are not allowed to be disclosed person liaYing,,by,JWi^,by CQPiSeii' -^f .pjtrties, autliority.jtpijipar, receive ,^nd e;samine evidence, ss prima facie proof of all the. matters contained or f^e.9ite.d,in such register, when the register, qr such copj thereof as afor^- gaid, is produced, and of all the matters contained, or recited in, or iiUdorsed on such .certificate of registry, ,-y7hen the said certiOcate ,i^ jproduced."(l) The thirteenth section enacts, that, where it as .necessary to prove thg ^puyict^on or. acquittal .of any person charged, it shall not be necessary to produce the record, but the fact may be certified under the hand of ti^e ^er!k, cjf the .court. .The .sectiqn is ^.s follows : i"^nd ;w.hereas, it is .expedient, as far.as.ppssible, tp reduce the expense jittendant upon .the prqqf of criminal proceedings : be it enacted, tha,t jyhefleyer, in any .proceeding whatever, it .may be necessary to prove thie ^al.^nd conyictioa .pr acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction ot fliCquittal qf,such person, .or a copy thereof, but it shall be sufficient that it jl^e certified, or purport to be certified, under the hand of the clerk of the §PYF^, ox other pfficer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or jDjfcher officer, that the paper produced is a copy of the record of the indict- ment, tjrial, conviction, and judgment or acquittal, as the case may be^ Qinitting th"e fornial parts thereof." Before ,this enactpient, it was necessary, in order to prove a conviction pr acquittal, that the record itself should be produced, unless it could be jproved to l^ave been lost or destroyed. Connected .with this subject, it m^y be mentioned, that, by an earlier ^tatute passed in the same session for the better prevention of offences,(2) ,(1) ,See ,8 & 9 Yiot. c. 89, § 43 ; Post, TqI. H. ^2) 14&15 Viot. 0. 19. (§ 2393) ; unless the party making them waives the statutory prohibition. § 2394. Where a party is subpoenaed as a witness, and fails to appear, the party calling him may be a witness in his own favor, g 2422, Code of Iowa, adopted in 185JL. ^ALiFOBNiA. — The Civil Praqtioe of this st^te ;resepibie3 Ijhat of New York, .being in many tep^eots founijJed upon it. j^t. .112^, § 39;i. ' AU persons are competent :y^tnes3e? who are not expressly excluded. jgecfion 392. Neither religiojis belief of any kind, nor interest in the event of the action qf proceeding, disqualifies any person, except, 1. "When he is a party to the action or proceeding, ox 1^9 person fpr who^e Jipmedia.^e benefit it j| prosecuted oj defended, 2. When his interest is present, oertaiij and veste^. ,.|^. ^?7i § 39^, stat?^ tl;ie true t;p?t of ii;it^r^^. .^f;t. ,il?8, § 394, spe^pi^es )yho are incompetent, jpaipely, 1. insa^ie persons, &. children undey t^ TyfcP.dp not appear actually competent, 3. Indians or h?Jf Indians, negroes or half negroes, as against white persons, 4. convicts not pardoned. . <^t. ^.139, § ^ft. JjTeither ,^he husband nor -yyife cap b.e ^ .ivitn^as for or against thp otheir. l^l^itliSr fin ^Worijsy o^' Qoijflselor, wr a oj^ergyman or priest, ogr ^ physician or surgeon, niii Copies of PiipliG Dqci^'ffia^. r^SP the provisions of the 7 & 8 Geo. lY, c. 18,, § 11, as to the. proof of a pre- vious conviction for felony by a certificate thereof in cases where the in- dictment stated a previous conviction, are extended to indictments for the piisdemeanors created by that act (14 & 15 Vict. c. 19). The enactment is as follows : ," In any indictment for such misdemeanor committed ^ter a previous conviction as aforesaid, it shall be sufficient to state that the offender wa^, '^t a certain time and place, convicted of felony or misdemeanor against " The Act for the better Prevention of Offences, 1851 " (as the case may be), without otherwise describing the previous felony or misdemeanor; and a certificate, containing the substance and effect only (omitting i;he formal part) of the indictment and conviction for the previous felony , or misdemeanor, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court where the offsnder was first convicted, or by the deputy of such clerk or of&cer (for which certificate a fee of five shillings and no more shall be demanded or taken), §hall, upon proof of the identity of the person of the offender, be sufficip;;Lt evidence of the first conviction, without proof of the signature or of&cia^ character of the person appearing to have signed the same." It may be mentioned also here, that by the twenty -second section pf,,tji,g 1^ and 15 Vict. c. 100, it is enacted that upon a trial for perjury or sub- ornation of perjury, relating to the trial of any indictment for felony or misdemeanor, a certificate of the trial of such indictment, purporting to be signed by the clerk of the court or other officer havi,ng t,he custody of tjie records of the court, shall be sufficient evidence of such lastjpienjtiqnpd trial. The fourteenth section of the Law of Evidence Amendment Act con- tains provisions for rendering examined copies of certain documents ad- missible in evidence. It is as follows : — " Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a a public officer,, can bo called upon to disclose communications made |to him, or give evidencpjjf facta communicated to him in his official or profe^iqnal capacity. §§ 396, SST, 398, 39^. Actions for a discovery are abolished, and each party may examine the advefse party as am^ ness, as under the Code of New York. See Wood's Cal. Digest, arts. 1154, 1155, g§ 421, 43f Alabama. — In all suits upon contracts where the defendant has been personally seryed wtt)i process, and is a resident of the state, and the matter in controversy does not exceed three hundred dollars, the plaintiff is competent to prove the correctness of the demand by his oyji oath, unless the defendant in open court denies upon oath the truth of pie ^acts proposed to ]>f) sworn to by the plaintiff. But the plaintiff must give the opposite party, or his attorney, jBv.e days' notice, or file notice with the clerk in certain cases of residence beyond the county, of |hia intention to prove the demand by his own oath, ^ut such provisions (lo not apply when execu- tors, administrators, trustees or guardians are defendants. Code of 1852, §§ 231,3-2315. p-BORQiA.^Iu this state the act of lg4'Z authorizes parties to compel discoveries in sui^ts aj law, and specifies the manner in which interrogations may, be put by either party to }]x^, othe;^, xxviii Alterations in the Laio of Evidence. copy, any copy thereof or extract therefrom shall be admissible in evi- dence in any court of justice, or before any person now or hereafter having by law or by consent of parties authority to hear, receive, and examine evidence, provided it be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted, and which officer is hereby required to furnish such certified or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpSnce for every folio of ninety words." This enactment extends the provisions of the Documentary Evidence Act,(l) and will greatly facilitate the proof of public writings, not being records of judicial proceedings, which subject is treated of in the sixth chapter of the second volume. The fifteenth section of the statute makes the certifying a false docu- ment a misdemeanor. The sixteenth section enacts that any court, judge, arbitrator, or other person having authority to hear evidence, may administer oaths to the witnesses. Section seventeenth makes the forging of a seal, stamp, or signature of any document referred to in the act a felony. The act does not extend to Scotland,(2) and it comes into operation on the 1st of November, 1851.(3) (1) 8 & 9 Vict. 0. 113, § 1. See Vol. II. (2) Sect. 18. (3) Sect. 20. and shall be answered on oath ; declaring further that the answers so given may be used as evidence on the trial. See also the statute of 1850. But the common-law rule still prevails in the state ; the witness is incompetent if the effect of his testimony will be to create or increase a fund in which he maybe entitled to participate. The Governor, &o. v. The Justices, &o., 20 Geo. R. 359. And an administrator who is liable for costs is also incompetent, though he have an estate in his hands suCacient to pay the debt and costs if recovered, and notwithstanding he became interested after the party calling him had acquired a right to his testimony. Shannon Adm'r v. Fuller, Id. 5fi6, decided in 1856. Illinois. — A statute of this state allows parties in trials before justices of the peace to call the opposite party to establish his demand, discount or set-off, and in case he refuses to appear and testify, permits him to be sworn as a witness, and prove it himself; it being first shown that he has no other witness by whom he can prove the demand. And the act is construed strictly. Pickering v. Misner, 11 lU. 597. Under a similar statute, the same right is allowed to either party on appeal ; but the party calling his adversary as a witness is not allowed afterwards to impeach his general character for truth and veracity, though he may show that he has testified or stated the matter differently on a former occasion. Drenner v. Lindsey, 15 Ark. 359. Indiana. — No person is rendered incompetent as a witness by reason of crime or interest- parties are not rendered competent, nor husband and wifo for or against each other: and no want of religious behof renders a witness incompetent. Though as a general rule the party calling cannot impeach a witness, he may do so where he was compelled to call him, or was surprised into calling him. 2 B. S. of 1852, pp. 80-83. . Felonies including Misdemeanors. ' xxix Some of tHe provisions of two other acts passed in the last session (1) •will now be noticed. By the fifth section of the 14 and 15 Vict. c. 19, it is enacted, that on the trial of any indictment for feloniously cutting, stabbing or wounding, the jury may acquit the defendant of the felony, and find him guilty of the misdemeanor, or of unlawfully cutting, stabbing or wounding. By the ninth section of the 14 and 15 Vict. c. 100, a party indicted for a felony or a misdemeanor, may be found guilty of an attempt to commit the same, and shall be liable to the same consequences as if charged with and convicted of the attempt only ; and by the eleventh section, on the trial of an indictment for robbery, the jury may convict of an assault with intent to rob. In either case the defendant who has been tried for the major offence shall not be liable to be prosecuted for the misdemeanor or minor ofifence. The twelfth section enacts, that any person tried for a misdemeanor shall not be acquitted if the offence turn out to be felony ; but he shall not be liable to be afterwards prosecuted for felony on the same facts un- less the court shall discharge the jury from giving any verdict as to the misdemeanor, and direct the defendant to be indicted for felony. By the thirteenth section, any person indicted for embezzlement as a clerk or servant, is not to be acquitted if the offence turn out to be a lar- ceny and vice versa : and in either case the person tried for the one offence shall not be liable to be afterwards prosecuted for the other offence upon the same facts. (1) 14 & 15 Tict. u. 19, For the better Prevention of Offences; and 14 & 15 Vict. o. 100, For the Improvement of the Administration of Criminal Justice (Lord Campbell's Acts). The 2d spctiou of the first-mentioned act, as to the proof of previous convictions, and the 2 2d section of the last-mentioned act, as to proof of the trial of an indictment, have been already noticed {supra, pp. xxvi, xxvii.) The 1st, 2d, and Sdsectionsofthe last-mentioned act, also relating to amendments in criminal proceedings, -will be found in the text of the work, Vol. I, Chap. 12. The provisions also Of another statute relating to the expenses of prosecutions (14 & 15 Vict. c. 55) will also bo found in Vol. II, Chap. 2. Nejv Hampshieb. — Inhabitants of towns, and members of public corporations, and members of mutual insurance corporations are competent witnesses in cases affecting the interests of such corporations, and no person is disqualified as a witness on the trial of an indictment or informa- tion on account of his interest in a penalty to be recovered therein. Compiled Statutes of 1852, pp. 485, 539. Either party may examine his adversary in certain cases, where the action is referred. Lovejoy v. Jones, 10 Foster R. 164. VmGiNiA. — Persons liable to assessment by a county or corporation are not thereby disqualified as witnesses, nor are officers of such county or corporation, though parties to the suit and liable with others to contribute to "pay the costs of suit, disquahfled. And no trustee, executor, or other fiduciary, is incompetent as a witness in any case by reason only of his being a party thereto, or of his being liable to costs in respect thereof ; but if liable for costs, he is not competent, unless some person undertake to pay the same. Code of 1849, p. 663. XXX Alterations in the Laiib of EviSience. By tHe fourteentli section, it is enacted, that upon an indictment for jointly receiving, persons guilty of separate receiving may be convicted. These enactments materially and beneficially alter the law as laid down in that part of Chapter 1, Section 1, in Vol. II (Of the Admissibility and Effect of Judgments aiid Verdicts), relating to the effect of the plea of autrefois acquit.^).) In the same section of this work, reference was made to the statute 7 W"m. IV, and 1 Vict. c. 85, § 11, whereby on an indictment for felony, including an assault, the defendant might be convicted for an assault only- But now, by the 14 and 15 Vict. c. 100, § 10, after reciting that great difficulties had arisen in the construction of the above mentioned enact- ment,(2) the same is repealed.(3) The statute 7 and 8 Geo. IV, c. 28, contains provisions for the more' exemplary punishment of offenders after a previous conviction. The 6 and 7 Wm. IV, c. Ill, provides that a previous conviction is not to be given in charge or read to the jury until after the finding for the subse- quent felony, except when evidence as to good character is given. The subsequent statutes, 12 and 13 Vict. c. 11, and 14 and 15 Vict. c. 19, con- (1) The provisions of the above mentioned statute, which was before Parliament at the time that chapter went through the press, are referred to in Vol. II. (2) See Vol. n. , , (3) The provisions of the 5th section of the 14 & 15 Tict. o. 19, and of the 9th and 11th sec-. tions of the l4 & 15 Yiot. c. 100 (sv/pra), seem intended to be substituted for those of the 1 "Wm. rv and 1 Tict. c. 85, § 11. See Vol II. Texas. — Children and insane persons are declared incompetent by the Code of Criminal Pro; cedure recently adopted ; a slave or free person of color cannot testify, except where the prose- cution is against a person who is a slave or free person of color. § 644. Communications to an attorney afe privileged (Art. 646), and the code does not allow the husband or wife to testify in' relation to communications made by one to the other during the existence of the marriage rela-, tion ; and they cannot testify against each other except as to offences by one against the other. Articles 641 and 648. Maine. — In this state, no person ia deemed an incompetent witness on account of his rehgious belief; and any person who does not beUeve in the existence of a Supreme Being ia permitted to testify under solemn afflrmation, subject' to all the pains and penalties of perjury. No persoii is excused or excluded from being a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event thereof as party or otherwise ; but his interest may be shown, and his want of religious faith, to affect his credibility; and parties are not ren- dered^competent witnesses in actions tliat imply an offence against the criminal law, unless the defendant offers himself as a witneaa, nor is a party admitted as a witness in actions by or against' executors or administrators. The above provisions were incorporated into the law of Maine by staiiitea peiaaed in 1841 and 1856'.' See R.'S. of the State, published by authority 'in ISSI, p.'B24.' ,,,,„. , ,^ .. ,.., MiaftioiN. — No person' is excluded from giving evidence in any matter, suit or prboeedina ' civil or oriinihal, by reason' of crune or interest in the matter, suit or proceeding, unless Wis a^ party to the record ; and any party to the suit or proceeding may (by filing an afBdavit showing ' that any other party ia acquainted witt ' certain speoifled'materlai'faota,' and that there is no Previous Conviction. xxxi tain similar provisions as those contained in tlie 7 and 8 Geo. IV, c. 28 ; and the ninth section of the 14 and 15 Vict. c. 19, contains a similar pro* vision as that contained in the 6 and 7 Wm. IV, c. 111. competent witness thereof), call and examine such party as a witness. Parties are also allowed to testify in certain cases before a justice of the peace or a county court. See E. S. of Michigan, published in 1857, Vol. II, pp. 1184, 1185. Rhode Island. — Parties to the suit or civil proceeding, and parties interested, are competent witnesses in this state; but husband and wife are not competent to testify for or against each other. See K. S. of 1857, p. 464. ALPHABETICAL LIST AMERICA]S[ A^D IRISH BOOKS, CONSULTED IN THE COURSE OF THESE NOTES. THE COUBTS TO WHIOH THEY PERTAIN, AS WHETHER XJNITED STATES OE STATES, WILL BE POUND STATED IN THE PEEFAOE, MOEE AT LENGTH. [The editor of this edition has cited the later reports, but does not deem it important to insert "them in this Hst.] Names of Books. Addison's Rep. (Penn,). Alabama Rep. No. Vols. .. 1 Admiralty Decision, (XJ. S.) 2 Aiken's Rep. (Verm.) 2 American Law Journal, (TJ. S.) 6 Anthon's N. P. Rep. (N. Y.) 1 Arkansas Rep 5 Ashmead's Rep. (Penn.) 2 Appleton's Rep. (Me.) 2 Alabama Rep. (by the Judges) 13 Bailey's Rep. (S. C.) 2 Bailey's Equity Rep. (S. C.) 1 Baldwin's Rep. (U. S.) 1 Ball & Beatty's Rep. (Irish) 2 Bay's Rep. (3. C.) 2 Beatty's Rep. (Irish) 1 Bee's Admiralty Rep. (U. S.) 1 Bibb's Rep. (Ky.) 4 Binney's Rep. (Penn.) ■ 6 Blaclvford's Rep. (lad.) 7 Bland's Ch. Rep. (Md.) 3 Brayton's Rep 1 Breese'a Rep. (111.) 1 Brookenbrough's Rep. (U. S.) 2 Browne's Rep. (Penn.) 2 Burr's Trial 2 Batty's Rep. (Irish) 1 Brevard's Rep. (S. C.) 3 Barbour's Ch. Rep. (S.Y.) 3 Barbour's Law Rep. (N. Y.) 3 Barr's Ref. (Penn.) 9 Call's Rep. (Ta.) 6 Cameron & Norwood's Rep. (N. C.) 1 Carolina' Law Journal, (S. 0.) 1 Charlton's Rep. (Geo.) 1 Gha-u's Trial, (U. S.) 1 Chipman, D.'s Rep. (Term.) 2 " N.'s Rep. (Verm.) .'. 1 City Hall Recorder, (N. T.) 6 Coleman's Cases, (>T. Y.) 1 Colem.nn & Ciiucs' Cases, (N. Y.) 1 Cables' Cases in Error, (N. Y.) 2 " Rep 3 Gowen's Rep. (N.. Y.) 9 Constitutional Rep. (.S. C.) 2 Rep. Mill3,(S. U.) 2 Cooke's Rep. (Tonn.) 1 Co.xe's Rep. (N.J.) 1 Craneh's Rep. (U. S.) 9 Conroy's Rep. (Irish) ,..,..... 1 Vol. I. Names of Books. No. Vols- Connecticut Rep. (Conn.) 18 Clarke's Ch. Rep. (N.. Y.) 1 Cheeves' Law and Equity Rep. (S. C.) 1 Charlton, R. M. Rep. (Geo.) 1 Comstook's Rep. (N. Y.) 1 Dallas' Rep. (Penn.) 4 Dane's Abridgment, (Mass.) 9 Dana's Rep. (Ky.) " 9 Davies' Rep. (Irish) 1 Day's Rep. (Conn.) 5 Devereux Law Rep. (N. C.) 4 " Equity Rep. (N. C.) 2 " & Battle's Law Rep. (N. C.) 4 " " Equity Rep. (N. C.) 2: Dudley's Rep. (Geo.) t Dessaussure's Equity Rep. (S. C.) 4 Denio's Rep. (N. Y.) 4 Dudley's Law and Equity Rep. (S. C.) 1 Douglass' Rep. (Mich.) 2 Edwards' Ch. Rep. (N. Y.) 3 Fairfield's Rep. (Me.) -3 Fox & Smith's Rep. (Irish) 2 Freeman's Ch. Rep. (Miss.) 1 Gallison's Rep. (U. ^.) 2 Gilbert's Rep. (Irish) 1 Griswold's Rep. (Ohio) 4 Gill & Johnson's Rep. (Md.) 12 Gill's Rep. (Md.) 3 Gilpin's Rep. (U. S.) 1 Green's Rep. (N. J.) 3 " Ch, Rep. (N.J.) 3 Greenleaf's Rep. (Me.) , 9 Gilman's Rep. (lU.) .• 4 Gilmer's Rep. (Ta.) 1 Gratta'n's Rep. (Ta ) 5 Hall's Eop. (N. Y.). .■ 2 Halsted's Rep, (N. J.)... 7 Hammond's Rep. (Ohio) '. 9 Hardin's Rep. (Ky.) 1 Hamper's Equity and Law Rep. (S. C.) 2 Harrington's Rep. (Del.) 3 Harris k Johnson's Rep. (Md. ) 7 " & M'Henry's Rep. (Md.) 4 Howard's Rep. (Miss.) 7 Harrison's Rep. (N. J.) 4 Harrington's Ch. Rep. (Mits.) 1 Humphrey's Rep. (Tenn.) 8 Hill's Rep. (S, C.) 3 Hill's Rep. (N.Y.).' 7 Hill's Ch. Rep, (S. C.) a 6A XXXIT ALPHABETICAL LIST, Names of Boohs. No. VoTf. Hawks' lUp. iN. G.) 4 Hayes' Ecp. (Ivisli! 1 Haywood's ReiL (N* C.) 2 " Ecp. 'r--im.) 3 HenniDg & lluiiford's Rep. (Va.) 4 Hogan's Rep. (Irish) 2 Hopkins' Ch. Rep. (N. Y.) 1 Hudson & Brooke's Rep. (Irish) 2 Huglies' Rep. f Kv.) 1 Havris & GiU's Rep. (Md.) 2 Hoffman's Ch. Rep. (N. Y.) 1 Howard's U. S. D C. Rep 6 Howard's Pr.u (iec Rep. (N. Y.) 3 Irish Term T.ep. (Irish) 1 Iredell's Dep. (X. C) 8 " Kquity Rep. (K C.) 5 .Johnson's Casu^, (N. Y.) 3 Ch. Rep. (N. Y.) 7 Rep. (N. Y.) 20 Jones' Rep. (Irish) 1 Journal of Jurisprudence, (TJ. S.) 1 Judicial Opinions of Mayor's Court, (N. Y.) . . 1 " Repository, (N. Y.) 1 Kent's Commentaries, (S. Y.) 4 Kirby's Rep. (Conn.) 1 Kelly's Rep. (Ceo.) 4 Kentucky Ii..c:siun, (Ky.) 2 Law Intellin-encor, (U, S.) 3 Leigli's Rep. (Va.) ' 12 Littell's Rep. (Ky.) 5 " Select Crises, (Ky.) 1 Louisiana Rep. (L.i.) 19 " Annual Rep (La.) 2 Macnally's Evidence, (Irish) 2 Marshall's A. K. Rep. (KyO 3 " J. J. Rep. (Ky.).: 1 Martin's Rep. (N. C.) , 1 " " (La.) 20 •' & Yor'.;er's Rep. (Tenn.) 1 Mason's Rep. (U. S.) 5 Mas-jaclr 1!.- ; t - Rep. ( Jlr;.s.^.) 17 McCord's Uli. Rep. (8. U.) 2 " Rep. iS (!) 4 Miles' Rep. (Pern.) 2 Monroe's Rep. (Ky.) 7 Mimlurd's Rep. iVa.) 6 Murphy's Rep. (N. C.) 3 Monroe's, Benj. Hep. (Ivy.) 8 Metcalf's Rep. (M:i^.-i.) 11 McMuUen's lit ji. (3. 0.) 2 ]■;- ■ - 2S6 liimitation of tlio rule in criminal cases " 287 In prosecutions lor administering drugs, to procure abortion — Robbery — Perjury - ^287 Murder - - 287 Declarations favorable to the prisoner .... - 287 Belief in future state implied 287 Declaration of attainted convict, formerly not evidence - 288 Declaration of aocompliee— E. v. Baker ... - 288 Preliminary inquiry as to the state of the person 289, 292 Prospect of impending'death— 'Woodcock's Case ; John's Case ; K. v. Bonner ; E,. v. Spilsbury 292 Interval before death — B,. v. Van Butehell; K. v. Bonner 293 Expressions of deceased — R. v. Crochett ; R. v. Fagont ; E. v. Errington - 293 Represeiitatinns to deceased — R. v. ATelborn ; E. v. Christie ; E. v. Mosely; E. v. Hayward 294 Fornj of declaration - 295 In answer to questions - 295, 296 Declarations reduced to writing— E. v. Eeason - 296 Signed by deceased - - - 296 Must be only as to facts- - 297 Admissibihly of, a question of law - ... 297 Effect of - 293, 299 SECTION VII. — Exception to the Geneeal Eule as to Hearsay, where Declarations HAVE lltEX MADE BY PERSONS, SINCE DECEASED, AGAINST THEIR INTEREST 300 General rule - - - - 300 Principle of admission 300, 304 Verbal declarations - 304 Declarant must bo deceased - 304 Means of knowledge in declarant 305 Amount of ii tticst 305 Proof of interest 303 Entries as to receipt of money — Stewards' books - _ - 306 Entries in private books - 307 Entry charging tlio maker 307, 310 Custody of books - 310 Rate books - - 310 Declarations as to right to property - 311 Deelar::li(iii-> by occupiers - - 311 General rule -• - - - 311 Barker V. Ray - - - 312 Particulars of estate recognized by tenant for lifo - :> 1 2 Life interest ... . - 313 Proof of occujiation - ' 313 Occupation or pcsscssion determined — Ivat v. Finch - 313, 314 American ca^is 31 1-:;:'.3 IJcclariilions of porson.5 alive — AYalkcr v. Broadstock - - :;:;3 Form in which declarations may bo made — Knowledge of declarant 333, 334 Declaration tending to incumber estate •■ 334 Balance of ii^tciirt — Kntry by one under whom lillc is derived — Oulram v. Morewood 334, 335 Debtor and creditor account — Clark v. Wilmot - 335 Entries by executor - i 33G By proctor - . 336 Clerical book.s — Rector's — Vicar's - - 330, 337 Collectors , of I ithoS ... . ;5;5C; Impropriator's books - - .... 338 CONTENTS. xlvii Entries against interest need not bo eotemporaneous with facts - 338 Evidence of I'aels therein stated, immediately connected 339 ExarQ[)les — "Warren v. Greenville; Stead v. Heaton ; Barry v. Eehbingtoa 339 HigUam V, Kidg-way ; Doo d. Keoce v. Eobson - 340 Shipwitli V. Shirley ; Marks v. Luheo ; Davies v. Humphreys 3-11 Doe d. Gallop v. Vowles; Dos d. Haden v. Burton - - 342 Whether entry evidence of collateral facts — Chamhors v. Bernascoui 342 Bjidd V. AVright ; Knight v. "Watcrford (Marquis) - 343 Made by one, Avho would not have been competent as a witness - 344 See Intrnd. Chap. Whcio other proof may be had — Middlcton v. Melton - 345 Proof of declar.iut's situation, aliunde — Except when he acts in a public character — Short v. Leo; Doo d. AVeljbui- v. Thynne .- - 346 Entries need not show for whom moneys were received - 346 Handwriting or .signature of entries - 346 Entries by agent — Proof of agency — Do Eutzen v. Farr - 317 Proof of hand ivriling ditpcused with - 348 SECTION VIII. — ExciPTiON to the Genbkal Rule as to Heaijsat, in oases WUEl'.E DLeLAUATlOXS OR EXIEIES HAVE BEEN MADE IN' THE OOUKSE OP Ol'FICE OK Busi.N'Ets 347 Principle of admissibility 347 Earlier cases on this subject — Price v. Torrington (Lord) ; Pitman v. MauJox; Smartlo v. Trilliams; Evans v. LLdce ; Pritt v. Eairclough ; Ilagedorn v.Pveid; Champneys v. Pecli ; Digby V. Ktcadman 347-354 Later ca-cs, which settle the rule — Doe d. Pattershall v. Turford; Poole v. Dioas; Doe d. Walsh V. Laiigficld ' 354, 355 Knowledge of laots necessary — Brian v. Preece ; Davies v. Lloyd _ - 356 Entries of independent matters not within the rule — Chambers v. Leinasc.ui - 357 Meaning of usual course of business — E. v. "\\'orth - 360 Entry mu.st bo eotemporaneous with act done — Clerk v. Bedford; Champnc;,; v. Peck; Pyke T. Crouch - - 360 Corroboration, how far rfquired ' - ' - 362 Entries admissible, though better evidence attainable • 363 Verbal declarations - - 363 Proof of declr.r. Jit's situation, aliunde - . 363 Entries not evidence lor parties in privity , 364 Indorsements on Ijund.s, as to paj'ment of interest — Searle v. Earrington (Lord) 364 Indorsement on notes — Bosworth v. Cotohett - 356 Lord Tentcrden's Act, 9 Gee. IV, c. 14, § 2 — Gleadow v. Atkin - 366 3 & 1 Wm. IV, c. 4'2. §§ 3, 5 - 367 Proof of time when indorsement made — Smith v. Battens; Saunders v. Meredith ; Eose v. Bryant - ... ggg Account signed by bankrupt - - 369 Shop books not ovidenee, in general — Stat. 7 Jae. I, c. 12 370 (American rule as to proof of book accounts) - 370-386 Entry must be fy per-ou since deceased - - .386 Writings must come bum proper custody . 386 SECTION IX. — Exception to the Gexeeal Rule as to n-Ar.iAy, wiodeb witnesses S:XOE deceased have given E'S'IDLXCE on a EOEMEK lEIAL 389 Principle of the exception - 389, 400 How testimony may be proved - - 389-102 Extent of proof - - - - 401 Who are considered the same parties - - 401 Eule between privies - ...... 402 xlviii CONTEITTS. SECTION X. — Exception to the Geneeal Ruib as to Hearsay, isr the case of Ad- missions BY Parties to the Suit - - . - 402 Whether this exceptional rule is a£feoted by the admissibility of parties to give evidence under the 14 & 15 Tict, c. 99 ' - - (Introd. Chap.) Principle of the exception . - - - - -402 1. Of admissions by a party to the suit, or by one for -whose benefit the suit is brought - 406 Whole of the admission to be received - - - 405-410 The same rule applies to writing - - ' 410 Answer in Chancery — Claim and counter claim - - - - 410 Effect of, as evidence - - - 411 Documents referred to .... - 411 Interrogatories — Examination in banlsruptcy - 412 Documents inclosed - 413 Documents referred to, but not connected— Long v. Champion - - - - 413 Limits to the general rule ... 414 Distinct writings — Series of letters copied in a book - 414 Proceedings in bankruptcy — entries in corporation books - 414 Conversations — The Queen's Case ; Prince v. Samo - 414 Remarks upon The Queen's Case " ' ' ' » ' ^^^ Review of authorities 416 Correspondence by letters 416 Writ containing return - 417 Other parts of judicial proceedings - 417 Effect of receiving the whole admission - 41'? Favorable parts of admission — Smith v. Blandy ; Randle v. Blackburn 418, 419 Answer in chancery - , - 420 Bill in chancery - - 420 Admission containing hearsay — Roe d. PeHatt v. Perrars 420 Admissions as to contents of written instruments - - - 421 Copy of agreement — Goss v. Quinton - - - 421 Recital of writ — Bessey v. Windham - - -421 Verbal admissions, whether receivable as to contents of written instrument 422 Authorities in favor of admissibility : — Doc d. Lowden v. Watson, assignment of lease ; Sewell v. Stubbs, promissory note ; Earle v. Picken, Newhall v. Holt, agreement : Slatterie v. Pooley, written instrument directly in issue : Howard v. Smith, demise - 422, 423 Authorities against admissibihty ; Bloxam v. Elsee ; Lawless v. Queall 423, 424 Remarks upon the authorities ... . . 4o_j^ Weight of such admissions - - ... 425 Written admissions " - ' . .^25 Dissolution of partnership - - . 425 Admission of holding shares in company • - . 425 Conveyance of land - , . . - 42 3 Whore admission will not dispense with calling attcstiug witness 42,") Parol admissions contradicting documents . 426 Parol admissions relating to record - . . 42q Admission made without prejudice, or during treaty - 42G— 130 By whom made . . 430 Oommuuications connected with admission - - - . .|:!0 Limits of rule . . . 431 Admissions of collateral or indifferent facts during treaty - - . -431 Admissions on examinations - . 4153 Receivable in civU cases ----... 432 Kvidcuce for strangers - .... 433 Whore not, for assignees of bankrupt - - - . ■ . . 433 CONTENTS. xlix Indirect or implied admissions ... . - 43 J Examples - ...... . 434, Of relation or character - ..... 434 Assumption of character ....... 434 Time when acts were done - - - - - - 435 Recognition of character - - - - ■ - 435 Admission of professional qualification — Smith v. Taylor .... 436 Where admission does not admit qualification ... . 436 Admissions by demeanor, &c. - - - 436-442 Effect of such evidence - - 437, 442 Acquiescence as an admission ... . 443 In criminal cases - - - - 443 Receipt of notice to quit, without objection .... 443 Contents must be shown to be known - - - 443 Demeanor of bankrupt - - - 443 Admission from forbearance .... 444 Knowledge of party acquiescing ... . . 444 Statement in letter - - - 444 Account delivered and notobjected to - - - - - 445 Statement by third person ... 445 Where reply not expected ' - .... 445 Party charged before magistrate - 445 Remarks by magistrate - - - - 446 Statements by persons preferring charge, to show animus - - 446 Statements admissible, if party replies to them - - 446 Entries in books accessible to party - - 446 Entries in manor rolls .... 448 Writings in possession of prisoner .... 448 Books of assignees ■ - - 449 Indorsement on feoffment - . . 449 Corporation books - .... 449 Document produced by party — Affidavit — Deposition in bankruptcy - 449 Party must be cognizant of contents — ^Deposition in equity — Evidence at trial - 4B0 Deposition before magistrate - - - 450 Inscription of name on stage coach - - . - 450 Admission of debt to attorney not admission of delivery of bill - - - 450 Admissions by treatment of subject - -, - - 450, 451 Omission of debt in schedule of insolvent - - - 461 BUI made out by tradesman to particular person - - . 451 Promise to pay bill of exchange, admission of notice of dishonor - - 451 Relief to pauper, admission of settlement - - - - - 461 Admission of nuisance in business - - - - . - 451 Admission of demand upon arrest - . - 451 When the matter involves law as well as fact - 451, 452 Discharge under Insolvent Act - - 452 Status of marriage - - - 452 Admissions of marriage in prosecutions for bigamy - - - 452 Effect of admissions - ..... 453 As estoppels - - .... 453 Where acts have been done upon faith of statements - - 453-464 Abandonment of lease by bankrupt - - - 464 Acquiescence in proceedings in bankruptcy or insolvency - • 464 By bankrupt — Watson v. Ware - - ■ 464 By petitioning creditor - 464 Admission of title in another - - 465 Accounting with a person in a particular character .... 466 Vol. I. , 4a CONTENTS. Other examples — Woman held out as married - - - - Assumption of name, &e. - - - Person holding himself out as partner Tenant cannot dispute landlord's title - - - "What does not amount to admission of title - Effect (Jf acceptance of bill, &c., as an admission Agent, when hound by his account .... Wharfinger acknowledging title of bailor .... Admissions in criminal cases - - - Admissions (from conduct), generally not condusiye ... In bankruptcy ....... Admission on oath ..... Admissions in answers in chancery .... Omission of debt in insolvent's schedule Admissions in deeds ...... Payment of consideration money . . . . - Where admissions in deeds operate as estoppels Where not - ... In an action not upon deed .... Matter of description or recital Where contract has reference to recital Binding upon privies as admission Admissions in writing not under seal Eeceipt Adjustment on policy ... Inventory in Ecclesiastical Court — Probate stamp ... Invoice - .... Attorney's biU delivered - .... Parish certificate . - - . * Bill in chancery - - . . Verbal admissions Admissions by strangers Who a party within the rule --.... Admission by party suing for another's benefit — Bauerman v. Radenius Alner v. George --.... Guardian or prochein ami Admissions by persona beneficially interested in suit By cestui que trust - - ... By person to whom money to be paid under bond - By debtor, where money deposited with a third party to pay creditor By person entitled to deed - .... Interested in policy - - . . . In freight - ... By cognizor in replevin — Hart v. Horn By rated parishioners - . . By party indemnifying — Under-sheriff — Bankrupt - By person whose liability is in issue .... By bankrupt, in action by assignees Not admissible, if made after bankrupttgr - . . . Bj» debtor, in favor of assignee of property - . . . By petitioning creditor — Harwood v. Keys- By party in different capacity ...... Person afterwards chosen assignee— Penwlok v. Thornton | Smith v. Admission by one party, evidence agamst another, jointly interested - - 465 - 466 - 466 461 - 468 - 468 - 469 - 469 - 469 469 - 4T0 410 - 410 - 411 - 411 - 411 - 412 - 412 - 412 412 - 413 - 413 - 414 414 418 418 418 418 418 419 419 419-483 - 480 - 484 - 484 - 485 - 486 - 486 - 486 - 486 486 - 486 - 486 - 486 481 488 - 488 - 489 - 489 490 490 490 489, Morgan 490, 491 - 491 CONTENTS. Otherwise if not jodntlj interested ------- 492 Rule in this country ------- 491, 500 Answer by several defendants in chancery ------ 492 Where co-defendants jointly interested • - - - - 492 Eetired partner ..---•-- 492 In tort, admission by one defendant not evidence against another - - - 493 By partner, a party to the suit — Gray v. Palmer - - - 496, 496, 498 By partner, when not a'party - - ' ■ - - ■ 498, 499 Statement as to transactions before partnership - . - - 500 Not referring to partnership transaction Part payment by parties to negotiable instrument — ^Whitoomb v. 'Whiting Admission must relate to joint debt 1. Of admissions under a judge's order Notice to admit - Foreign documents - Time of notice - Effect of order as admission Description of document — Counterpart of lease Execution of deed - - - Authority of agent to accept bills— Wilkes v. Hopkins Order does not preclude objection to admissibility - Variance between order and document - Inspection of document - - - - Identity of document ------ Admission available on new trial ' Effect of disobedience of order - - - - - By whom order to be made J. Of admissions.by an agent of the party - Objections to this kind of evidence General rule - . . . Declaration must be made in course of business, in scope of the agent's authority Where not so made, not evidence — Pairhe v. Hastings Warranty of horse by servant Letter of agent — ^Maester v. Abraham; Kahl v. Letter adopted by principal Agent's authority ----- Attorney — Eeferee — Arbitrator Miners' jury - - - - - Admissions of wife, not generally binding on husband - Otherwise where he sues as her representative Or where her authority can be inferred Lord Tenterden's Act (9 Geo. IT, o. 14) When authority inferred When not inferred Interpreter employed as agent — Fabrigas v. Mostyn Admission of agent, in criminal oases • Instructions to agent Of admissions by under-sheriffs, baUiffs, attorneys, counsel, &c. Admissions, not charging party making them - By under-sheriff or bailiff Declarations accompanying official acts By guardian By attorney Direct admissions Indirect admissions - 500 501 502 - 503 - 503 - 503 - 504 - 504 - 504 - 504 505 505 - 506 506 - 506 - 506 506, 501 - 501 - 501 - SOT - 507 501-513 - 513 513, 514 Jansen; Langhom v. Allnut 614, 516 - 516 - 516 516, 511 611 511 - 618 - 518 - 518 - 518 519 519 - 520 520 - 520 - 620 - 620 - 621 . - 622 - 522 - 522 - 523 lii CONTENTS. Extent of admission - "When made " without prejudice " Proof of being attorney By clerk to attorney Admissions on former trial Not admissible in criminal oases By counsel In conduct of cause Statements to jury .... On former trial Admissions by principal not evidence against surety Entries by deceased principal Admissions, evidence against privies In blood — in law — in estate Admission by proprietor or occupier of land When not evidence Other examples Surveys and maps, in case of privity of estate Entries by steward When privity of estate determined, declarations not admissible Kule applicable in cases of personalty - Declarations of assignor When not evidence Admission by prior holders of negotiable securities Limitation of the rule in such cases When person making the admission need not be called - 523 523 523, 524 . 524 524 524 524 525 525 525 525 526 - 526 - 52'7 527 - 528 - 528 528 - 529 529 529 529 - 530 - 530 531 - 531 SECTION XL — Exception to the Gbneeai Euxe as to Heaksat, nr cases op Coitfes- SIONS MADE BY PBISONEES ... . . 532 General principle of the rule - . . 532 Confessions made in examinations taken before magistrates . 534, 536 Whole confession to be produced . - - 537 Effect of parts favorable to prisoner - - 539 Statement inculpating another - 540 Inference from demeanor of prisoner ... . . 541 Effect of confession - - . 541 Admission of previous marriage, in bigamy - 542 Confession must be voluntary - . . . 542 Admissibility of confession, question for judge - -543 Nature of inducement that will exclude confession 544 Held out by persons having authority ...... 544 Or in their presence — E. v. Pountney;' E. v. Taylor - - 544-548 Inducement by persons without authority wiU not exclude confession - 548 B. V. Eow; K.V.Spencer; E. v. Taylor - . 543 E. V. Simpson . . . 549 Eemarks upon that case . . 549 55Q Eeward offered by government . . . 55]^ Approver refusing to give evidence 55j Suspicion of inducement must be removed . . 55^ Confession after inducement, made at subsequent time . 551 552 Caution after inducement - . . . 552-554 Property found in consequence of confession — R. v. Gould - - 554^556 Discovery of property, and cotemporaneous expressions— R. v. Griffin; E. v. Jones - 556 Discoveries after a confession, implicating others — R. v. Jenldna - . 555 Nature of inducement that will exclude — Examples - , . 551J CONTENTS. liii Where language ambiguous - ■ - • - - - B51 What will not exclude confession : Exhortation to tell truth - - .... - 558 Inducement having no reference to subject of confession - - - -558 Spiritual inducement .... .... 658 Favor not connected with charge - .... 668 Dfeoeption used in obtaining confession . ... 559 Confession by prisoner when drunk - - - 569 Obtained by questions - - - 559 During illegal custody . - - - 560 Before magistrates - - - - - 560 Kemarks made before magistrate .... 660 Statement by person, under charge, examined on oath . - 660 Statement by person, under suspicion, examined on oath as witness — B. v. Lewis ; E. v. Davis ... - 561 Examination on oath before coroner - - - .563 Statement by person, not under charge or suspicion, on oath, as witness against another 563 General rule on this subject - - - 563 Deposition taken on oath by mistake, but afterwards destroyed 563 Examination before House of Commons • - 563 In prosecution for perjury - - - 564 Confession relating to separate offence - - - 564 Confession not evidence against others - - - 564 Former practice — Tong's Case - 564 Principal and receiver . - - - 564 Statements of co-conspirators - 565 Confession in case of high treason - - - 565, 566 Proof of collateral facts - - 566, 56T CHAPTER IX. OF THE EXCLUSION OP SECONDARY EVIDENCE; AND OP THE RULE WHICH REQUIRES THE BEST EVIDENCE TO BE GIVEN. Best evidence to be given - . - 661 Principle of the rule - ... 668 Rule explained ... . . .569 Examples - - .510 Copy of written instrument - - - 610 All possible proof not required - - . 510 Proof of execution of deed by one of several witnesses - - - 511 Further illustrations of the rule - - 511 Proof of negative, when not necessary 512 Wilhams v. East India Company - 513 Best proof of negative -613 Rule relates to the quality, not the quantity of evidence - 514 Parol evidence of writing, when not admissible - 515 Where the writing is the subject of dispute - 516 Rule in cross-examining as to contents of letters - - -615 Proof of aUotmeuts by minutes of commissioners 516 Rule as to substituting oral evidence ... 616 Where there is a lease, &c. - - - 516 Where fact of tenancy to be proved - - - 518 Where terms of tenancy to be proved - - - -518 Collateral writings need not be produced - - - 519 Reference to unstamped document - - 519 Proposals .....,,... 619 Ht OOITTENTS. In action to recover document - --- . . . - - 519 Rule as to substitution of secondary wrUten evidence - - ■ 580 Insurance Company's books ... - 580 Memorial of deed ...-..--- 580 Printed copy of manuscript - - - - - 580 Printed papers - - " " " • ' ^^^ Newspaper .... . - - 580 Macliine copy - - - - 681 Entries in judicial proceedings - - ... 581 Order of Court of Cliancery - - - - - 582 Discharge of insolvent - ... . - 582 Examination of prisoner before magistrate - - 582,583 Examination on oath ... . - 584 Informal examination - - - - 584 Note of evidence - - - - 585 Rule as to admission of hearsay - - - 586 Secondary written evidence for refreshing memory - - - _ - 58& Duplicate originals - - 586 Writings not excluding oral evidence- - - - 586-588 Proof of marriage - - - - - 589 Where writing itaelf inadmissible .... 589 "Written memorandum ... . 590 Resolutions at a public meeting — R. v. Hunt - - - 590 Inscriptions on flags, &c. - ... . 590 Resolutions read at a meeting - - - 59J Cases excepted out of the general rale - - - - 692 1. Proof of records ... . . . 693 Public books .... .... 592 2. Appointment to a public ofiBce ... . . 592 Justice — Constable — Revenue officer — Surrogate — Commissioner — Sheriff — Under- sheriff— Vestry clerk - - - 592-594 In legal proceeding by or against officer - 594 Persons acting under private authority - - - 594 3. Inquiry as to general mode of dealing, &c. - - 594 Impression produced by correspondence - - 595 Substance of old records - - - 595 4. Where original evidence not attainable .... 59B 6. Notices .... . . . 596 6. Examination on voir dire ... . . . 596 Where document lost, &c. - - - 696 Negotiable security lost or destroyed - 696, 591 CHAPTEE X. OF PRESUMPTIVE EVIDENCE, AND OF PRESUMPTIONS. Presumptive evidence defined ...... 598-612 Nature of presumptions - - - 612-618 SECTION I. — Of Matters judioiailt noticed - . - 618 Matters of government - - . 618 Accession of sovereign, &c. - - . . 619 London Gazette ... . - 619 Proclamations - - ... 619 Articles of war, &o. - - - - 620 Commencement, &o. of Parliament - - . 620 CONTENTS. Iv Foreign states . - - - - War .... Public statutes - - - - - General customs - - - - Customs of London Law of Ireland ..... Ecclesiastical laws, &c. - - Proceedings of superior courts, Ac. Of courts of general jurisdiction Not of proceedings of courts of different jurisdiction Chancery, Sco. Sheriff's book, Ac - - - - Foreign laws Laws of Scotland, &c. - Seals ...... Of superior courts .... Of London ..... Not of other corporations - Inferior courts Mentioned by statute Almanac, &c. Division of kingdom into counties Not extent or division of counties Ports — River Thames Coin — ^Weights — ^Measures Meaning of words Events happening in course of nature 620 620 620 621 621 621 621 622 622 623 623 623 623 623 623 624 624 624 624 624 625 625 625 625 625 625 625 SECTION II. — Of Pbeshmptions made by Courts and Juries presumptions of law - Presumptions aa to facts .... Effect oi presv/mpiive, compared with direct evidence SiSTferal kinds of presumptions at law As to prescriptions "With respect to age - - - As to legitimacy As to marriage Strict proof required in certain cases As to intention - . - Of malice - ... Presumption of negligence In case of publication of libels Selling unwholesome food .... As to nuisance Of theft, from possession of stolen goods' Contra spoliatorem Prom fabrication of evidence Of death Of survivorship ... Oflossofsliip - ... Of regular appointment to office Omnia rite acta - - - - Official acts Proceedings in inferior courts Private formal acts ..... 625 626 621 621, 628 - 628 - 629 - 629 - 630 - 631 - 631 - 632 632 633 - 633 634 634 634^638 639 639 640 641 642 642 642 - 642 642 643 Ivi CONTENTS. Negotiable security - - • Date of document . - - - - Proceedings in bankruptcy Wife's letters in action for crim. con. Letter producing answer Prom course of public office Of private office . - - - - Underwriters From course of events - Of property from possession - - ' " As to boundaries - - • Aa to nature of tenancy Incorporeal rights— (2 & 3 "Wm. IV, c. 11) Of public way From user Of act of Parliament Of writ of ad quod damnum Of grant from the crown Of private conveyances - Of conveyance from trustees - - " Of surrender of term - ■ " Eestriction of presumption - - - - ' Of licenses - - ■ Presumption of by-law - - Of payment Of reputed ownership - - - ■ By the law of treason - Circumstantial evidence Nature of human testimony - - " SECTION III. — Of the Relbvanct of Peestjmptitb Fboofs, and op the ooNPiifES Evidence to the Points in Issue - General rule - - - " Proof of other contracts, &c., when inadmissible Ees inter alios - - - - Proof of other transactions, to show knowledge Evidence of transaction with strangers, when admissible Proof of customs in other manors, &c. Eule, on question of tenure Champion v. Atkinson ; Somerset (Duke of) v. France Eule, on question as to custom of the country As to particular customs - Eights of tenants Course of particular trade Proof of acts of ownership in other lands Stanley v. White Cross-examining as to other customs — BlundeB v. Howard Evidence of character In civil suits . . - - - In criminal prosecutions ... Where character is in issue in civil suits In action for adultery, or seduction For defamation General reports as to character General good character For malioioua prosecution, &c. . 643, 644 - 644 - 644 644 644 - 645 - 645 645 - 645 646 641 648 648, 649 - 650 651-658 659 - 659 660-612 612 613 613 613, 614 - 614 - 614 615-103 103 - 104 104-130 111-130 Eule which 132 132-148 148 - 148 - 150 153 153 153, 154 - 154 - 154 - 155 - 155 - 155 155 156 - 151 - 151 151, 169 159 158, 159 - 160 160 - 161 161 - 161 CONTENTS. Ivii In criminal cases, evidence as to character of prosecutor, -when admitted - 761 As to good character of prisoner - - - 762 Upon what points - 163, 764 General character - - - ''64 Particular acts - - . . , . . t64 Cross-examining witnesses to character - - - 765 6 & 7 Wm. IT, 0. Ill (Introd. Chap, xxx) - - - 765 Evidence of bad character - ... . 765 General disposition to commit offence, not admissible - - 765 In criminal cases, evidence to be confined to the charge - 765 Examples — Treason; Burglary ... - 766 Where the felony charged is connected with others - 766, 767 Where indictment for separate offence ... 767, 768 Proof of other criminal acts to show intention - - - 768 "Uttering or possessing other forged notes or counterfeit money 768-770 Statements by prisoner as to former transactions - - - - 771 t Proof of subsequent facts - 772 In cases of malicious shooting ; threatening letter ; hbel; receiving stolen goods, &c. 772 Of conspiracy to cheat 772 Of murder - .... -773 Eule as to conspiracy and riot - - - 773 General evidence as to conspiracy - - - - - 773, 774 Acts and declarations of prisoner, when evidence for him — ^Walker's Case - - -774 When they refer to transactions proved against him — Lord George Gordon's Case - 775 Hanson's Case ; Home Tooke's Case - . - - - 775 Hardy's Case .... . - - - 776 SECTION IV. — Of Evedenoe in Matters op Opinion - - 778 Opinion admissible in matters of skill - 778 Medical men - 778 Engineers— Pclkes v. Chadd - 779 Other examples - - - 779 Ancient writings — Seals - - 780 Porged notes — Counterfeit coin, &c. ... 780 Postmark - ... .780 Porged writing - - - - 780 Eule confined to matters of science and skill - - 780 Examples - - 781 Evidence of underwriter, as to materiality of facts concealed - - -781 Where rejected — Carter v. Boehm; Durrell v. Bederley; Campbell v. Rickards 781, 782 Where admitted — Berthon v. Loughman; Rickards v. Murdock; Chapman v. Walton - 782 Remarks upon these cases - - 782, 783 In cases of collision at sea, or on land - 784 Handwriting - - - - 784 Poreign laws ... . 784 SECTION V. — Of Admissions on the Record - - 786 1. Of the effect of judgment by default, or upon demurrer - - 785 What judgment by default admits - - 785 What judgment on demurrer admits - - - 786 2. Of the effect of payment of money into court ■ - - ■ 787 Must be pleaded - . - - • - 787 Iviii CONTENTS. Effect as an admission - - - - - Where money paid in upon general counts Upon special contract - . - - Effect aa admission of contract tTpon both special cbntract and general counts In action on policy - - - - In case of a sale by sample In trover - - - Wliere plea of Statute of Limitations Admits signature on note or bill Sufficiency of stamp Execution of deed Contract in writing - - - - Jurisdiction of court Title of plaintif in suing, &o. Gives no effect to illegal contract As to matters collateral to contract — Clay v. Willan In action for negligence Effect of summons for leave to pay money in Of the effect of pleading over General rule Effect of special demurrer - Admits only material facts - Not allegations which are not traversable How far admission operates As to facts material to issue Facts admitted not to be proved Cannot be disproved Examples How far admission before jury . . - Edmunds v. Groves ; Bennion v. Davison ; Smith v. Martin ; Carter v. Bingham v. Stanley ; Eobins v. Maidstone ; Pearn v. Eilica Remarks upon these cases - Of the effect of a particular of demand - Where credit given for sums paid Admits payment by defendant Where plaintiff sues for balance Admission as to set-off - - - , - How far conclusive Particular confined to part of demand - Mrst particular enlarged by second Evidence on special count, though not mentioned in particular - Particulars not abridged by demand When interest need not be particularized Plaintiff^s particular, how far evidence in support of defendant's plea Errors in particular - - - - In date Where defendant's evidence supplies other items for the plaintiff Delivery of particular, when to be proved Variance between particular delivered and one annexed to the record Particular not part of record Particulars of set-off - 787 ■ 787 787 788 - 788 - 789 - 791 791 - 791 - 791 - 791 - 791 - 791 - 791 - 792 - 792 - 792 - 792 793 - 793 - 793 - 793, 794 - 794 - 794 - 794 795 - 795 795 795, 796 796 James; 796, 797 797-799 799 - 800 800 800 800 - 800, 801 801 802 803 803 803 - 803 804^807 - 807 803, 807 - 809 - 809 - 809 - 809 0017TENTS. lix CHAPTER XI. OP THE EULB FOE DBTEEMimMG WHETHEE THE PLAINTIFF OR DEFENDANT OUGHT TO PROYB THE ISSUES ON THE EBCOED. Seneral rules .... Oima proband! lies on party asserting afEnnative Tests to ascertain on which side affirmative lies Charge of breach of duty involving negative Not reading the Thirty-nine Articles Putting combustibles on board vessel, without notice Bieaoh of contract .... Allegation that work not performed in proper manner - That work not performed at all Breach of covenant stated negatively Ownership of vessel, in action for loss by barratry "WTiich party to begin .... Value given for bill of exchange Where offence involving negative, created by statute Doing act without consent of owner Where a fact is particularly within knowledge of a party Want of qualification under the game laws Fact alleged in defence - - - - Infancy - ... Consent of parties in prosecution for bigamy 809-812 807-812 810^812 - 812 813, 815 - 816 - 816 - 816 - 816 816 816 816-820 820 - 820 821 821 - 821 - 8M - 823 823, 824 CHAPTER XII. OF THE RULE THAT THE SUBSTANCE ONLY OF THE ISSUE NEEDS BE PROVED. General rule 1. Examples in civil cases Plea of solvit ad diem — Covenant — Action against sheriff Slander — Replevin .... Trespass — Case for disturbance of common Other examples Plea of tender — ^Payment 2'. Examples in criminal cases ..... Prosecution for libel ...... False pretences — Burglary — Robbery — Murder (Manner of death) Charge of being principal in first degree. — Proof of being in second Accessory - - - - Murder of officer in execution of duty — Mackalley's Case 3. Of material and immaterial variances in civil suits General rule ... Examples — ^In action on tort In action on contract In cases of prescription Averment, mere inducement needs not be proved strictly Averment that cannot be struck out must be proved — Bristow v. Wright Averment that may be struck out needs not be proved — Williamson v. Allison ; well V. Steggall ... 4. Of material and immaterial averments in indictments Immaterial averments — Examples - ... Material averments — Examples - - - - - 825, 830, - 824 - 825 826 821 829 829 830 830 830 831 - 831 - 832 832 835 835 - 836 - 83T 837 - 837 838, 839 Glad- 841, 842 - 843 843 844 Ix CONTENTS. 5. Of variances in civil suits ... - 845 Variances in statement of contract - 845-849 Where contract is stated in action on tort 849, 850 "Wliat parts of contracts need be stated - - 851 Joint contracts - - - - 851 Eule as to party sued - - - ■ 851 As to party suing - - - ■ 852 Joint torts - - - 853 Proof of time - - - - 854-856 Of place .... 85T Statement of prescriptive right - - - - 859 Proof of more ample right - - - 859 Of less extensive right - 859 Eight must be of same nature - - 859, 860 Eule of court to amend variances ... 860 Eight of way ... 860 Of common - - - 860 Variance as to documents stated in pleadings - 861 Deed set out in substance on the record - - 861 Eecord set out in substance - - 862 Averment as to day of acquittal - 862 Date of judgment - - 873 Old rule as to variances - - - 862-873 6. Of amendment in civil suits .... 873 Stat. 9 Geo. IV, c. 15 (Lord Tenterden's Act) - - 873 Variances in civil actions and misdemeanors, between the written matter averred and the writing proved, may be amended - - 874 Cases on this statute • - 874 In civil actions - - 874 SubpcBna — Masterman v. Judaon - - 874 Statement of contract — ^Lamey v. Bishop; Smith v. Brandram 874 Secondary evidence of writing — Libel - - - 875 In indictments for misdemeanor — Perjury - 875, 876 Stat. 3 & 4 "Wm. IV, c. 42, § 23 - 876 In what cases amendments may be made - - 876 Sec. 24 ; as to finding facts specially - 877 General view of the provisions of this act - 878 What proceedings they apply to — ^What variances — Amendment, how made 878 Power, where the variance not prejudicial, &c. - - 878 Terms of amendment - 878 Where it may be prejudicial - 878 Terms of amendment - - - - 878 Eestriction on amendments - - 879 Where court wiU revise decision of judge as to amendments - - - 879 Where amendment refused - - 879 Pacts found specially - - - - 879 Power of amendment reserved to court - 879 Power of amending exorcised liberally - - - - 880 Amendment, when to be made .... 880 1. Cases in .which amendments have been allowed - - 880 As to warranty ...... gg^ False representations as to soundness - . - 881 General custom in trade - - - 881 Wager .... gg^ Tolls in market-place - - - 881 Contract to produce government security - - - 881 CONTENTS. Ixi To guaranty payment - To build As to payment Legal efifeot of contract Agreement to refer - - - - In action against carriers As to parties to agreement - Members of firm - - Bills and notes - - - Misnomer of close ... Ofparish .....-- Day of demise in ejectment In action for slander For libel Amendment by adding count The words, " by statute," to plea By annexing writ Allegation of excuse for notice of dishonor Plea of gaming 2. Cases in which amendments have been refused Statute does not apply to material omissions » Extending justification or avowry - Venue — Name of defendant — Amount of damage Now contract and breach — Agreement for lease — Eviction Consideration for guaranty — ^Breach New matter Recital of deed ... Breach of covenant - "Where variance may have affected mode of pleading — Effect of deed Claim of watercourse .... Demise in ejectment - - ... Tear of demise Innuendoes in action for slander, &c. - - - Where objection would be good in arrest of judgment Agreement to consolidate contracts 1. Variances in criminal cases Proof of time Of place - - - - Where offence is of local character Of value 8. Of amendments in criminal cases - Stat. 1 Geo. IV, c. 64 ... Sect, 19 ; indictment not to abate by dilatory plea of misnomer Wrong addition Sect. 20 ; judgments not to be stayed in certain cases Stat. 9 Geo. IV, c. 15 ; amendment of variances as to writings, in misdemeanors Stat. 1 1 & 12 Vict. c. 46, § 4 ; in felonies Stat 14 & 15 Vict. 0. IQO, § 1 ; amendment of other variances, not material merits of the case, in felonies - .... - 882 - 882 - 882 882 882 883 - 883 883 883 884 - 884 - 884 884, 885 - 885 885 885 885 - 885 885 - 885 885 885, 886 886 - 886 - 886 88T - 887 887 881 888 - 888 - 888 - 888 - 889 - 889 - 889 - 889 890 891 - 891 891 891 - 892 - 892 - 892 892 893 to the 893-895 TABLE OF THE CASES CITED TEXT OF VOLUMES I & II. Abbey V. Ml i 780, ii. 458 ^bbot V. Plumbe.' i. 426, ii. 468 Abbott V. Sendricks ii. 670, 691 V. Masaie ii. 716, 768 T. Smitb ,..1852 Abel V. Potta ii. 288 Abigny v. Clifford i. 15 Abignye v. Clifton ii, 304 Abingdon's Case i. 564 Abraham v. Newton ii. 852, 856 Acerro v. Petroni '. . . .ii. 890 Ackerley v. Parkinson ii. 103 Ackland v. Pearee ii. 544 Aokroyd's Case i. 560 Adams T. Kerr .ii. 505 T. Lingard i. 128 V. Malkin i. 75 T. Peters i. 779, ii. 790 T. Power 1, 887 T. Sanders i. 478, 783 V. Savage (Terre-tenants of) i. 623 T. Wdrdley ii. 637, 673 Adamthwait'e v.Synge .L 243, ii. 354, 417 Addington v. Clode ii. 312 Addison v. Overend i. 856 Adey v. Bridges i. 417 Aflalo V. Fourdrinier i. 53, 57, ii. 531 Aikmah v. Conway i. 645 Aitkin, Ex parte i. 144 Alban v. Pritchett i. 80, 517 Alcook V. Cooke ii. 263, 414 Alderson v. Clay i. 449 Aldred v. HalUweU ii. 303 Aldridge y. Haines ii. 103 Alexander v. Bonnin i. 839 v. Brown i. 450 T.Gibson i. 507, iL 990 AUvon v. I'umival.i. 586, ii. 181, 193, 416, 417, 514, 552, 866 Allan v. Hayward ii. 1013 V, Hutohins ii. 994 vlTapp ii. 314 Allen's Case i.572, ii. 350 T. Denstone i. 614 Allen V. Dundas ii. 76, 76, 449 V. Yoxall u. 828 AUesbrook v. Eoaoh ii. 609, 616 AUottT. Wilkinson .i. 529 Allport Y. Meek ii. 616 Alner t. George i. 479, 484 Alaop V. Bowtrell I 631, ii. 303 Alston V. Hills i. 792 Alves V. Bnnbury ii. 416 Amey v. Long ii. 816, 829 Amos V. Hughes i. 812, 814 Anderson v. Hamilton i. 164 V. Saunderson i. 92, 518 V. Weston i. 369, 644 Anderton T. Magawley ii. 414 Andrew v. Pledger ii. 399 Andrews t. Askey ii. 961 V. Dobson ii. 710, 718 T. Palsgrave i. 789 Anglesea (Marq.) v. Hatherton (Lord) i. 235, 753, 755 Angus V. Smith ii. 959 Ankerstein v. Clark i. 862 Annesly v. Anglesea (Lord). . .i. 141, 270, 273, 627, 639 Ansley v. Birch ii. 859 Ansoomb v. Shore i. 230 Anstey v. Downing i. 571 Antram v. Chace ii. 400 Apothecairies' Co. v. Bentley i. 822 Appleton V. Bray brook (Lord) ii. 417 Arcangelo v. Thomson ii. 294 Archer v. English i. 787 Arding v. Flower ii. 821, 82'2 Argyle v. Hunt i. 621 Arkle v. Wakeman .L 488 Armitage v. Dunster i. 827 Armory v. Delamorie i. 639 Armstrong v. Hewitt. . .i. 337, 757, ii. 270, 448 Amfield v. Bate i. 845 Arnold v. Bath and Wells (Bishop). ii. 281, 292 V. Eevoult i. 862 Amott v. Redfern ii. 193 Arnsby v. Woodward i. 444 Arton V. Booth i. 485 Arundel (Lord), Case of. i. 337 Lxiv TABLE OF GASES CITED. Arundel V. Arundel ii. 213 (Mayor) v. Holmes il. 314, 324 V. White li. 389 ArundeU v. Falmouth (Lord) i. 235, 236 Ashby V. Power i, 628, ii. 13, 34, 270 V. White ii. 103 Ashford v. Thornton i. 628 Ashmore v. Hardy i. 425, 433 Ashton, Case of, — (See B. v. Ashton) V. Poynter ii. 103 Aspinal v. Kempson i. 674 Astley V. Tounge i. 620 Athenry Peerage Case i. 265 Atherfold v. Beard ii. 311 Athlone Peerage Case ii. 281 Athol (Duke) V. Ashburnham (Lord) i. 279 Atkina v. Drake i. 310, ii. 271, 693 V. Hatton ii. 448 V. Humphreys ii. 215 V. Meredith ^ ii. 527, 531 V. Palmer ii. 851 V. Tredgold i. 502 Atkinson v. Carter ii. 527 V. Cornish i. 622 V. Foster i. 74 T. Pierrepoint i. 467 V. Raleigh i. 889 Att. Gen. v. Bond. ii 966 V. Bovet ii. 852 V. Bowman i. 757 V. Bulpit ii. 887 V. Clero i. 841 V. Coventry (City) ii. 313 V. Davison ii. 209, 211 V. Donaldson ■. i. 619 V. Foster ii. 801 V. Good 1. 172 V.Griffith i. 20 T. Grote ii. 736, 737 Y. Hitohoook ii. 901, 972 V. King ii. 3, 100 V. Le Merfchant .• .ii. 524 V. Morgan ii. 688 V. Parker ii. 801 V. Pamther i. 640 V. Plate Glass Co ii. 709 V. Riddle i. 634 V. Theakstone i. 619, ii. 276 V. Warwick (Corporation) i. 284 Audley (Lord), Case of i. 94 Augustlen v. Challis i. 579 Austin V. Poiner ii. 935 V. Ramsay ii. 493 Avery v. Dickinson ii. 308 Aveson v. Kinnaird (Lord), .i. 78, 183, 187, 214, 286 Avrey v. Davenport ii. 355 B. Backhouse v. Jones i. 749 V. Middleton ii. 219 Bacon v. Chesney i. 478 Baddeley v. Gilmore ii. 855 Bagot (Lord) v. Williams ii. 21, 26 Baikie v. Oliandlesa ii. 580, 582 BaUdon v. Walton .i. 420 Bailey v. Appleyard i. 589 Bailey v. BidweU i- 820, ii. 485 BaiUie'sCase i. 134, 166 Bain v. Case ii. 289 V. Mason ii- 281 Baker v. Dewey i. 471, 472, ii. 652 V. Morley i- 80 v.Paine ji- ''8'' V. Sweet ii- 382 Balcettiv. Serani i. 150 Baldney v. Ritchie ii. 522 Ballard v. Way ii. 272 Balmarino (Lord), Case of i- 889 Bamfield v. Massey i. 760, ii. 961 Bamford, Ex parte i- 422 Banbury Peerage Case i. 243, 256, 258, 268, 275, 479, 630, ii. 215, 265 Union (Guardians) v. Robinson i. 788 Bank Prosecutions, Case of i 571 Barber v. Wood ii. 819, 820 Barclay (Lord), Case of i. 754 Barden v. Keverberg i. 749 Barford v. Nelson i. 450 Baring v. Roy. Exch. Ass ii. 174 V. Clagett ii- 173, 174, 175 Barker v. Dixie i- 80 V. Keate i. 643 V. Ray . .i. 305, 311, 312, 339, 344, 518, 639 V. Richardson i. 485 v.Stead ii. 506, 602 V. Taughan i. 518 Barksdale v. Morgan ii. 710 Barlow v. Bishop i. 518 Barne v. Whitmore i. 606 Barnes v. Hunt 1. 829 V. Mawson i. 219, 230, 235, 281 V. Trompowsky ii. 493 V. Wenkler ii. 165 Barnett v. Brandao i. 621 Barnstable (Corporation) v. Lathey ii. 314 Barough v. White i. 480, 531 Barraolough v. Johnson i. 245 Barrett v. Wilson ii. 103 Navigation Co. v. Shower i. 624 Barron v. GriUard .1. 80, 491 Barrow v. Humphreys ii. 829 Barrs v. Jackson ii. 85, 93 Barry v. Alexander ii. 321, 323 V. Bebington i. 306, 340, 345 Barrymore (Lord) v. Taylor i. 416, 420 Barstow's Case i. 540 Bartholomew v. Stephens i. 595, ii. 552 Bartlett v. Downes i. 674 V. Piokersgill i. 59, ii. 676 V. Smith i. 5 Barzillai v. Lewis ii. 174 Basan v. Arnold i. 827 Bass V. Clive i. 468 Bassett v. Bennett ii. 35 Bastard v. Smith i. 503, ii. 386 V. Trutch 1. 642 Basten v. Carew ii. 103, 104, 891 Batohelor v. Honeywood ii. 602 Bate V. Hill i, 760, ii. 961 V. Kinsey 135, 145, 639, u. 636, 551 V. Russell i. 52 Bateman v. Phillips, .ii. 312, 324, 326, 331, 682 Bates v. Grabham ii. 664 Bate.son v. Hartsink i. 154 TABLE OF CASES CITED. Ixv Bafh V. Battersea (Earl) 1. 410, ii. 215 Bathwick Peerage Case i. 257 Batthews v. Galindo i. 82, 465 Bauermau v. Radenius i. 41, 474 Bayley v. Edwards ii. 182 Baylie v. Wylie. . ; ii. 384 Baylis v. Lawrence i. 632 Bayne v. Stone i. 580 Baynham v. Guy's Hospital ii. 804 Beadsivorth v. Torkington i. 860 Beale v. Bird Ii. 328, 329 Beamon v. Eliice ii. 889, 890 Beard v. Ackenuan i. 145 Beasley v. Magrath L 485 Beauchamp t. Parry i. 530 Beaumont v. Dukes ii. 688 V. Pell ii. 717, 768 V. Greathead i. 502 Beaurain v. Soott i. 623, ii. 387, 399 Beaver v. Lane i. 862 Bebb V. Tfiomas i. 188 Beckett v. Dutton i. 882, 883 Beckham v. Osborne i. 418 Beckwith v. Bonner i. 157 Beequet v. M'Carthy ii. 181, 182, 193, 204 Bedford (Duke) v. Lopes i. 283 Bedle and Beard, Case of i. 660 Beebee v. Parker i. 244 Beech V. Jones ii. 578, 917 V. While i. 837 Beeching v. Gower i. 102 Beeman v. Duck i. 468 Beer v. Ward — (See Bere v. Ward) Belcher v. Brake 75, 202, 489 V. M'Intoah i 812 Bell V. Ansley i. 486 V. Banks i. 46 V. Francis ii. 524 V. Snaith .i 72 BeUairs v. Blsworth ii. 676 Bembridge v. Osborn i. 703 Bendyshe v. Pearse i. 576 Bennett v. Francis i. 788 V. (Hundred; Hertford L 15 V. Taylor ii. 492 V. Watson ii. 834 Bennion v. Davison i. 794, 796 Benuison v. Jewison i. 5 Benson v. Bennett i. 474 V. Marshall i. 530 V. Olive i. 528, ii. 13, 34, 218, 262 Bent V. Baker i. 66 Bentley v. Cooke i. 83, 94 Bentzing v. Scott i. 874 Bere v. Ward i. 270, 274, ii 481 Beresford v. Easthope ii. 855 Berigan's Case i. 551 Berkeley Peerage Case. . .ii. 214, 243, 245, 246, 252, 255, 258, 267, 274, 275, 279, 306 Berman v. Woodbridge i. 418 Bernardi v. Motteux ii. 173, 176 Bernasconi v. Farebrother. . .1. 480, 489, ii. 987 Berner's Peerage Case i. 256 Berney v. Read ii. 400, 467 Berry's Case i. 647 V. Banner i. 238, ii. 13 Beiryman v. Wise L 436, 591 Berthou v. Loughman i. 782 Bertie v. Beaumont ii. 293, 439, 481 Berwick's Case i. 566 Vol. I. V. Windham L 421, 425, ii. 363 Betham v. Benson i. 507 Bethell v. Blencowe i. 423, 579, ii. 571 Betsworth v. Betsworth ii. 85 Betteley v. M'Leod ii. 829 V. Reed i. 469 Bevan v. HiU i. 596 V. Jones i. 861 V. Waters i. 157 q. t. V. Williams i. 435 Beveridge v. Minter i. 79 Beverley (Mayor, &c.) v. Craven ii. 346 Bevis V. Lindsell i. 785 Biddulph V. Ather i. 230, 237, 282 Biden v. Loveday i. 674 BiUers v. Bowles i. 785 Bingham v. Stanley i. 159, 797, 820 Binstead v. Coleman ii. 676 Birch V. Depeyster ii. 786 Birniingham, Bristol and Thames Junction Railway Co. v. White ii. 314, 320 Birt V. Barlow i. 589, 631, ii. 264, 280 v. Rothwell i. 620 Bishop V. Howard i. 648 Bittleston v. Cooper i. 506 Black V. Holmes i. 164 V. Braybrooke (Lord) ii. 347 Blackburn v. Thompson i. 626 Blackburne v. Hargreave ii. 819 Blackeln or Blackelor v. Crofts i. 370 Blackett v. Lowes i. 229, 231 V. Roy. Ex. Ass. Co ii. 798 Blackham's Case ii. 47, 92 Blackie v. Pidding i. 597 Blacquiere v. Hawkins i. 621 Blake v. Foster .i. 467, 468 V. Lawrence .i. 803 V. Pilfold i. 165 Blakemore v. Glamorganshire Canal Co. ii. 15, 51 Blakey v. Porter ii. 324 Bland v. Ansley i. 83 V. Drake i. 622 V. Swaffliam ii. 833 Blandford v. De Tastet ii. 829 Blewett V. Tregonning i. 793, 973 Bligh V. Wellesley ii. 659 Blower v. Hollis ii. 379, 380 Bloxam v. Elsee i. 423 V. Hubbard " i. 853 Bluett V. Bamfield ii. 207 BlundeU v. Gladstone ii. 711, 718, 768 V. Howard ii. 271 Blunt V. Blount i. 266 V. Clarke i. 643 V. Cumyns ii. 787 Blyth V. Bampton i. 851 Boehtlinck v. Schneider ii. 428 Boileau v. Rutlin i. 479, 798 Bold V. Rayner ii. 783 Boldron v. Widdows i. 749 Boltman v. Roden (Lord) ii. 711 Bolton v. Liverpool (Corporation). . .i. 134, 142, 525, ii. 315 V. Gladstone ii. 172, 174, 175 V. Sherman i. 525, 792 Bond V. Seawell i. 643 Bonham, Dr.. Case of ii. 103 Bonzi V. Stewart i. 793, 795 Booth V. Howard i. 787, 789, 809 5A Ixvi TABLE OF CASSe CITED. Booth v. 'Wilson i. 652 Bootle V. Blundell ii. 1Z1 Borthwick t. Cawutjiers i. 823 Bosanquet v. Anderson i. 468 Boson V. Sandford a. 852 Boswell V. Smith i. 703 BoBworth V. Cotchett i. 344, 364, 366 Botham v. Syvingler , i. 103 Bottings V, Firby ii. 167 ■Bottomley T. Forbes ii. 805 V. Usborne. i. 147 Boucher v. Lawson ii. 182 V. Murray i. 883, 886 Bouohier v. Taylor , .ii. 65 Bounty, Case of ii. 102 Bourdeaux v. Rowe. ii. 853 Bousfield V. Godfrey ii. 328, 332 Bowditch V. Mawley 1. 861 Bowen t. Jenkins , i. 829, 859 Bowers v. Nixon i. 882, 887 Bowles V. Jackson ii. 819, 827 ■v. LangwoTthy i. 426, ij. 211, 468 Bowman t. Bowmap ii. 892 y. Horsey ii. 789 v. Manzeliaan ii. 550 v. Norton i. 135, 155 y, Rostron i. 472 V. Taylor i. 257, .473 Bowsher v. Cally i. 211, 522 Boxer v. Robeth ii. 504 Boyd V. Moyle i. 883 Boydell v. Brummond ii. 743 Boyle T. Tamlyn i. 652 Boys V. Anoell i. 883 V. Williams ii. 736 Braddiok y. Thompson ii. 103 Bradley v. Arthur i. 620, ii. 277 V. Ricardo ii. 982, 984 Bradshaw v. Bennett ii. 488, 678 V. Bradshaw ii. 780 V. Murphy ii 319 Brain v. Preece i. 356 Braithwaite v. Coleman i. 639 Bramwell v. Lucas i. 169 Branoher v. Moljneux i. 792 Brandon v. Newii!gi;on i. 830 Brandi'am v. Wharton i. 502 Brandreth's Case (See R. v. Brandetb) i. 205 Brasfield v. Lee i. 625 Brashier v. Jackson i. 880, 886 Braugh v. Cradpck , i. 153 Brazier v. Bryant ii. 103 V. Jone? ii. 450 Breokon v. Smith i. 802 Bree v. Beck i. 306, ii. 265, 270 Breedon v. GiU ii. 219, 250 Breeze v. Hawker ii. 445 Breton v. Cope ii. 287, 444, 469 Brett V. Bealea i. 219, 235, 284, 310, 336, ii. 272 295 V. Levett i. 489 V. Ward ii. 278 Bretton v. Prettiman i. 517 Brewer v. Palmer i. 576 Brewster v. Sewell. ii. 553, 555 Briant v. Dormer ii. 468 V. Bicke i. 874 Brice v. Smith i. 643 Briokell v. Hulse i. 449, 450, 631, ii. 215 Bridget v. Goyjipy ii. 104 Bridgman t. Jennings i- 236, 529 Briggs T. Aynsworth ii- 914 Bright v. Walker -i- 64:9 Brindley v. Woodhouse ii- 576 Bringloe V. Goodson ,. . .i. 473 Brisco T. Lomax i. 219, 231, 237, 755 Briscoe v. Stevens ii- 165 Bristow V. Eastman i- 474 T. Wright ; .1. 845 British Museum (Trustees) v. Finnis i. 650, ii. 289 Brittain v. Kinnaird ii. 103, 104 Broad v. Pitt ... ., i. 138, 142 Broadhurst v. Baldwin -i- 792 Brocas v. London (Mayor) ii- 446 Brock T. Kent i- 511 Brodie v. St. Paul ii. 743 Bromage v. Prosser i. 632 V. Rice • .ii. 616 Bromfield v. Jones i- 827, 841 Bromley v. King i. 181, 202, 489 V. Wallace i. 760 Bromwich's Case (See R. Bromwich) Brook V. Willett i. 859 Brookbank v. Anderson i. 103, 466 Brookbard v. Woodley ii. 610,'618 Brooks V. Blan^hard L 875 V. Warwick i. 633 Brooksby v. Watts J. 467 Brough T. Parkings i. 625 Broughton v. Randall. i. 641 Brounker (Lord) v. Atkins ii. 13 Brown (or Browne) v. Brown i. 47 V. Bullen ii 101 T. Capel ii 303 V. Cumming ii. 305 T. Dean ii 363 V. Fox i 46 V. Gatliffe ii. 805 T. Giles ii 911 V. ppdgson ii 809 T. Jacobs i. 861 T. knUl i. 861 V. Murray ii 912 V. Philpot i 820 V. Rose ii. 324, 328 V. Sayce i. 845 T. Shelley i 268, 270 T. Thornton ii 303, 459 V. Watts i. 802 V. Woodman ii. 514, 644, 569 BrowneU v. Bonney i. 451, 704 Browning v. Aylwin ii. 324 Brownsword v. Edwards ii. 51 Bruce v. Hurley i. 187 V. Wait i. 621, ii 136 Bradenell v. Roberts i 467, 468 Bruin v, Knott i 621 Brune v. Thompson, .i 237, 346, C26, 626, 627, 660 Brunton's Case i lol v. Hall i. 860 Biyan v. Wagstaff ii 531 V. Winwood i. 756 V. Chandos (Duke) ii 644 V. Fisher ii. 855 Buchanan v. Rucker . . .i 624, ii. 193, 204, 416 Bucher v. Jarret i. 5s0, ii. 539 V. Palsgrave i. 789 Buckler v. MiUerd ii 643, 683 TABLE OF CASES CITED. IxTii Backworth's Case i. 389 Bulkeley v. Butler ii. 608 BuUen v. Michel, .i. 229, 235, 306, 338, il. 270, 211, 292, 414, 481 Bunbury v. Bunbury i. 135, 146, V. Matthews i. 593, 624 Bunting's Case ii. 90 Burdett v. Colman i. 207 Burdon v. Browning i. 59 Burgess v. Langley i. 168 Burghart v. Angerstein ii. 280 Burleigh v. Stibbs ii. 544 V. Stott i. 502 Burley's Case i. 559 V. Bethune i. 633 Burling v. Paterson i. 643 Burnand v. Nerot i. 621, ii. 381, 382, 385 Burnett v. Lynch ii. 488 Burr V. Harper u. 602, 609, 610, 015, 625 Burrell v. Nicholson ii. 3 17 v. North ii. 540 Burrough v. Martin ii. 926 V. Skinner i. 787 Burrows v. Jemiuo ii. 207 Burt V. Palmer i. 517 V. Walker ii. 497 Burton, Bx parte ii. 207 V. Payne ii. 523 V. Plummer . . . ,i. 585, ii. 578, 917, 925 Bush V. Balling i. 129 Bushwood V. Bond i. 859 Butcher v. Butcher ii. 651 V. Stewart ii. 760 Butchers' Company v. Jones i. 103 Butler V. Alnutt i. 645 V. Carver i. 103 T. Ford i. 594 V. Moore i. 138 Buxton V. Cornish i. 579 Byam v. Booth ii. 383 Bye V. Bower i. 886 Byerley v. Windus i. 652 Byne v. Moore i. 862 Byrne v. Harvey il 531 C. ■ V. Barlow i. 772 Oadogan v. Cadogan i. 627 Call V. Dunning i. 426, 461, 468 Gallendar v. Dittrich L 889, ii. 170 Calliard v. Vaughan ii. 851, 859 Calvert v. Canterbury (Arbp.) i. 340. 361 V. BovU ii. 175, 176 V. Flower ii. 537, 966 Oamden v. Anderson ii. 285 Gameron v. Farmer i. 810 V. Lightfoot i. 449 Campbell (Major), Case of-^(See K. Camp- bell) i. 5, ii. 211 V. Hodgson ii. 673 V. Rickards i. 780, 782 v. Twamlaw i. 82 .V. Webster .i. 45,1, 704 Canning's 0ase-7-(See R. Canning) i. 119 Carelosa V. Careless ......ii. 778, 780 Carey v. Adldns .i. 93 V. Gerrish i. 703 Carey v. Pitt ii. 601, 602 Carlisle (Mayor) v. Blamire i. 473, ii. 544 V. Eady . . .' i. 10,4 V. Trears i- 845 Carmarthen (Mayor &c.) v. Lewis i. 881 Oarmichael v. Carmiohael i. 28 Carnarvon (Earl) v. Villebois i. 219, 238, ii. 269, 273 Came v. Horsefall ii. 789 V. NicoU L 312, 333, 334 Carpenters' Co. v. Hay ward i. 3 Carpenter v. BuUer ii. 472, 473 V. Thornton ii. 66 V. WaU ii. 935, 959, 961 Carr v. Bardiss ii. 487, 488 V. Heaton ii. 13, 15 Carratt v. Morley i. 643 Carriok v. Ticary i. 468 Carrington v. Jones i. 346 Carruthers v. Graham i. 76, ii. 855 Carter v. Boehm i. 781, 782 V. Dowuish i. 621 V. James i. 793, 796, ii. 47 V. Murcott i. 647 V. Pryke i. 748, 753 Cartridge v. Griffiths i. 861 Cassidy v. Steuart i. 620 Castrique v. Bernabo i. 645 Cates V. Hardacre ii. 929, 937 V. Winter ii. 525, 527 Catherwood v. Caslon. i. 632 Catt V. Howard i. 414, 500, ii. 928 Catteris v. Cowper i. 646 Cavan v. Stewart ii. 170, 194, 203, 416 Cazenove v. Taughan ii. .213, 214, 383, 857 Chad V. Tilsed ii. 800 ! Chadwiek v. Bunuing ii. 454 1 Chambers v. Bernasooni . .i. 340, 343, 357, 361, .449, ii. 2ia V. Chamb^s i. 627 Champian v. Terry i. 596 Champneys v. Peck i. 353, 361, 645 Chandler v. Grieves i. 622 V. Home ii. 887, 888 Chandos Peerage Case. .i. 256, 263, 266, ii. 291 Channel! v. Ditchbum i. 502 Chaney v. Payne . ; u. 104, 307 Chapman v. Beard i. 435, 643 V. Cowlan i. 219, 236, ii. 294 V. Davis ii. 833 V. Gardner i. 74 V. Graves i. 50 V. Pointer iL 827 V. Smith i. 219, 310, ii. 271 V. Sutton i. 879, 883, 886 V.Walton i. 782 Charles v. Branker i. 789 Charlter v. Barrett. .' i. 772 Charlton v. Gibson ii. 791 Charnock's Case — (See B. Charnook) . . . .i. Ill I V. Lumley ii. 326 ' Charington v. Brown i. 172 j Chaters v. Bell i. 468 Chatfleld v. Fryer i. 233 Chatland v. Thornley i. 622 Chaurand v. Angerstein ii. 788 Cheetham v. Hampson i. 652 ChelseaWaterworliS (Governor, &c.) v. Coop- er ii. 481 Ohesmer v. Noyes. . — ii. 302 Ixviii TABLE OF CASES CITED. Chesterton v. Parlar i, 642 Cheyne v. Coops i. 13 Child V. Chamberlain i. 54 V. Grace i. 445, 446, 564 Chippendale v. Thurston i. 501 Chisman v. Count / 1. 445, 802 Chitty T. Dendy i. 623 Cholmondeley (Lord) v. Clinton i. 148, 674, ii. 219 Christian v. Coombe i. 478, ii. 303, 959 Christie v. Secretan ii. 172, 174 V. TJnwin i. 642 Christy v. Tancred ii. 17 Chubb V. "Westley i. 772 Churchill v. Day i. 787 V. Evans i. 652 V. Wilkins i. 845 Clanricarde (Lord) Case of ii. 278 Claridge v. Hoare ii. 930 V. Mackenzie ' . . .i. 468 Clark or Clarke v. Clarke i. 140, 435, 464 V. Gray i. 192, 851 V. Morrell i. 882 V. MulUch i..i. 624 V. Saffrey ii. 891 v. "Wilmot i. 335 Clarke, In re i. 642 Clarkson v. Hanway ii. 689 V. Woodhouse. . .i. 235, 237, 281, 282, 283, 284 Clay's Case i. 594 V. Langslow i. 489 V. Stephenson ii. 852, 856 V. Tliackray (or Shackeray) i. 506 V. Willan i. 792 Clayes v. Sherwin ii. 216 Clayton v. Corby i. 829 T. Gregson ii. 709, 710, 793, 796 V. Nugent (Lord) ii. 761 Cleave v. Powell i. 133, 153, ii. 32 Clegg V. Levy ii. 428 Cleghorn v. Desanges ii. 363 Clementi v. Golding i. 626 Clements' (y^se (See R. v. Clements.) V. Scudamore .' i. 621 Clerk V. Bedford i. 352, 361 Clermont v. Tasburgh ii. 688 V. Tullidge ii. 609 Clifford V. Burton i. 92, 518 V. Hunter ii. 899 V. Taylor ii. 332 T. Turrell ii. 655 Clifton V. Walmsley ii. 644, 804 Chnan v. Cooke ii. 665 Clinton Peerage Case i. 267 V. Peabody ii. 330 Clothier v. Chapman i. 230 Clowes V. Higginson ii. 678 Olunnes v. Pezzy i. 639 Clutterbuok v. Huutingtower (Lord) i. 41 Coatea v. Bainbridge i. 616 V. Birch i. 157 V. Mudge ii. 524 V. Stevens i. 800 Cobb V. Car i. 38 Cobden v. Kendriok i. 140, 141 Cooker v. Shuttleworth ii. 329 Cookman v. Mather ii. 299 Cooks V. Nash ii. 324, 327 y. Furday ii. 428 Cocksedge v. Panshaw ii- 1009 Coe V. Westernam ii. 75, 449 3;gs V. Barnard i. 633 Coghlan v. Williamson ii. 493 Cohen v. Hannam '. 845 V. Hinkley i. 642 V. Templar i. 154 Coker v. Farewell i- 389 Cole V. Hadley j. 450 Coleman's Case i. 534 Coles v. England (Bank) i. 465 V. Trecothick ii. ''43 Colledge v. Home i. 625 CoUenridge v. Farquarson i. 188 CoUett V. Keith (Lord) i. 432, 623 CoUey V. Smith i. 47 Collier v. Nokes i. 431, ii. 906 Colling V. Treweek ii. 539, 544 Collins V. Bayntum ii. 489 T. Carnegie i. 436, 624 V. Godefroy ii. 829 T. Gresley i. 284 V. Martin i. 644 V. Maule i. 580, ii. 595 Colpoys V. Colpoys ii. 751 Colsel V. Budd i. 703 Colsonv. Selby i. 803 Colton V. James i. 645 Colvin V. Proo. Gen i. 641 Compagnon v. Martin i. 827 Compton V. Chandless i. 350 Connell v. Curtis i. 594 Conway v. Beazley. . . '. ii. 180 Cooch V. Goodman i. 624 Coode V. Coode '. ii. 281 Cook (or Cooke) v. Banks . . .i. 234, 339, ii. 291 V. Booth ii. 804 V. Green i. 648 V. Hartle i. 791 T. Hearn i. 147, ii. 551 V. Lloyd i. 251, 272 V. Losley i. 467 V. Manwell i. 138 V. Maxwell i. 164, ii. 356 V. Munstone i. 845 V. Nethercote ii. 887 V. Shell ii. 100 V. Stratford i. 886 V. Tanswell ii. 336, 489, 533 Cookes v. Hellier i. 643 Coole V. Braham i. 489, 490 Coombs V. Coethior i. 219, 235, ii. 292, 444 Cooper V. Amos i. 802 V. Blandy i. 468 V. Blick i. 788, 841 V. Beckett i. 643 V. Gibbons i. G39, ii. 625, 536 V. Lo Blanc i. 469 V. Marsden i. 304, 352, 354, 370 V. Meyer i. 468 V. Smith i. 420 V. South i. 285 V. Turner i. 703 V. Whitehouse i. 886 Coote 7. Lighworth i. 466 Cope V. Bedford ii. 278 V. Cope 1. 87, 275, 630, ii. 281 T. Thames Haven Dock Co . .ii. 906, 914 Copoland v. Watts 1. 154 Corbett v. Corbett ii. 385 TABLE OF CASES CITED. Ixix Cordwent v. Hunt ii. 692 Cornfield v. Parsons i. 6 Corking v. Jarrard i. 104 Cormaok v. Heathoote : i. 139, 144 Cornish v. Pugh i. 88 V. Searell i. 468 Cornwall v. Richardson i. 760 Corsen v. Dubois i. 154 Cory V. Bretton i. 426 Cossens v. Cossens i. 471 Cost V. Birheck .• i. 237 Coster V. Innea L 642 Cotes V. Davis i. 518 Cotterell v. Cuff i. 851 Cotterill v. Hobby i. 761 Cottington's Case iL 180 Cotton V. Godwin i. 830 V. James i. 174, ii. 294 Coulishaw v. Cheslyn i. 793 Counden v. Clarke ii. 777, 780 Cousins V. Brown i. 862 Cow V. Kinnersley i. 855 Cowan V. Abrahams i. 580, ii. 539 V. Braid wood ii. 205 Cowling V. Ely i. 485 Cowper V. Cowper i. 639 Cox V. Allingham ii. 75, 450, 452 V. Brain i. 788 v. Copping ii. 316 T. Painter i. 886 T. Parry i. 791, 792 T. Read ii. 285 V. "Walker i 816 Cozer V. Pilling i. 633 Crank (or Cronk) v. Frith ii. 499 Craven v. Halliley i. 203 Cray v. Halls i. 469 Craythorne v. Swinburne ii. 655 Crease v. Barrett i. 217, 219, 233, 236, 241, 242, 244, 271, 305, 306, 311, 313, 400, 528, iL 1012 Creevey v. Car ii. 899 Crellin v. Calvert i. 794, 799 Crepps V. Durden iL 104 Crew V. Saunders iL 311, 313 Crisp V. Anderson i. 039, 643, ii. 571 Crispin v. Williamson L 857 Critohlow v. Parry i. 468 Croft V. Pawlet . ." i. 643 Crook V. Stephen i. 485 V. Dowling ii. 396 Crooke v. Edwards .• i. 75 Crosby, V. Hethering L 621, iL 166 V. Percy , L 172, iL 498 Cross V. Eglin ii. 799 V. Fox '. .L 74 V. Kaye L 435 Crosse v. Redingfield L 492 Crossfield's Case L 402 Crouch V. Drury L 370 Croughtou V. Blaka ii. 440 Crowley v. Page i. 597, iL 960, 969 Crowther v. Solomons ii. 571 Cuff V. Penn iL 677, 680 CuUen V. Morris iL 103 CuUey V. Doe d. Taylerson ii. 1007 Cundell v. Pratt iL 946 Cunliffe v. Sefton L 426, iL 498, 505 v. Whitehead iL 862 Cupper V. Newark .L 28, 74 Curlewis T. Corfield L 451, 704 Curling v. Robertson iL 285, 856 Currie v. Brown ii. 467 V. Child i. 53, ii. 492 Curry v. Walter i. 166 Curtis V. Hunt L 478 v. Riokards i. 649 Ourzon v. Lomax L 218, 235, 264 Cussons T. Skinner ii. 461, 503 Cutler V. Newling L 52S Cuts V. Pickering i. 140, 157 D. Ba Costa v. Edmonds .i. 645 V. Jones i. 168 V. TiUa Real ii. 90 Dagleish v. Dodd i. 411 Daintree v. Brocklehurst i. 674 V. Hutchinson iL 709 Dalgleish v. Hodgson ii. 173, 174. 175, 176 Dalison v. Stark. i. 579, 590, ii. 578 Dalrymple t. Dalrymple i. 623, ii. 428 Dalston v. Coatsworth i. 639 Damerell v. Protheroe i. 756 Dance v. Robson iL 415 Dand v. Kingseote L 792 Dandridge v. Cordon ii. 934 Dane v. Kirkwall ii. 266 Daniel v. North I 334 V. Preece. i. 887 Daniell v. Phdlipps ii. 104 V. Pitt L 517 Daniels v. Potter i. 211, 493 Darby v. Smith i. 793 Dartmouth (Countess) v. Roberts..!. 406,470, 528, iL 381, 382, 386 Dartnall v. Howard ii. 382 Davenport v. Davies i. 801 Davidson v. Cooper L 643 Davies v. Brown ii. 308 V. Davies iL 385, 966 V. Edwards L 807 V. Humphreys i. 341, ii. 311 V. Lewis i. 230 dem. Lowndes ten .L 245 269, 272, 644 iL 67, 620 V. Lloyd i. 356 V. Morgan L 219, 243, 275, 345, 345 V. Pierce L 304, 312, 527, 529 V. Ridge i. 500 V. Waters i. 145 Davis V. Capper iL 104 V. Chapman i. 827 V. Dale iL 896 V. Dinwoody L 83, 486 V. Dodd L 596 V. Dunn L 879 V. Lloyd L 273, 306, iL 283 V. Morgan L 41 V. Reynolds L 580 V. Yass il 413 V. Williams ii. 444, 454 Dawson v. Chamney L 633 V. Gregory iL 294, 389, 398 V. Macdonald ii. 328 V. Remnant i. 478 Day v. Bo-tver L 807 Ixx TABIE OF OASES ClTEtt Day V. Davies i. 802 V. Trisg .' ii. 643, '738 V. Williams i. 674 De Bertram v. Smith i. 466 Bode (Baron), Case of ii. 215, 428 Gaillon v. L 'Aigle i. 786 Lisle Peerage — (See Lisle Peerage). . .i. 259 Eutzen v. Parr i. 347, ii. 901 Sailly V. Morgan ii. 953, 962, 963 "Whelpdale V. Milburn i. 471, S28, ii. 15 Deacle v. Hancock i. 233, 242, 310 Deady v. Harrison i. 530 Dean v. James i. 830 Deane v. Eobson i. 623 Delafield v. Freeman ii. 399 Delamotte v. Lane i. 749 Delany v. Tenison i. 639 Belegal v. Highley i. 772 Denn T. Barnard i. 449 d. Lucas y. Pulford ii. 347 d. Peters v. Hopkinson ii. 794 V. Spray ii. 219, 235, 294 V. "White i. 80, 517 Besborough v. Rawlins i. 158, 160 Bespard's Case (See B. v. DeBpard) i. 106 BeVenoge v. Bouverie ii. 326 Deverell v. Whitmarsh i. 471, 472, ii. 652 Dfevizes (Mayor) v. Clark ii. 1013 Devon "Witches, Case of i. 534 Dewdney v. Palmer .".i. 71, 98 Dewhurst's Case — (See E. v. Dewhurst) Deybel's Case i. 625 Dicas V. Brougham (Lord) i. 623 V. Lawson ii. 833 Dicken v. Lodge i. 311 Dickinson v. Coward i. 434, 435, 465 V. Shee ii. 906 V. Talpy i'' 466 Dickson v. Evans i. 821 Digby V. Steadman i. 354, 370 Dike V. Polhill i. 258, ii. 93 Dillon V. Harris ii. 744 V. Parker. ii. 1013 Dimond V. "Vallanee ii. 855 D'Israeli v. Jowett ii. 289 Bitcham v. Bond i. 674 Ditch burn v. Goldsmith i. 168 Ditcher V. Kenrick i. 154 Dixon V. Dixon i. 640 V. Hamond i. 469 V. Vale ii. 935, 936 Dobell V. Stevehs ii. 688 Dobree v. Eastwood i, 644 Dobson v. Bell i. 622 Dockwray v. Dickinson i. 853 DodJ V. Norris i. 760, 946, 961 D'oddington's Case i. 472 Doe V. Askew ii. 294 d. Cheppard v. Allen i. 444 d. Small v. Allen ii. 685 d. Jupp V. Andrews i. 156, ii. 819 d. Slansbury v. Arkwright. . .i. 315, ii. 291 d. Manton v. Austin i. 311, 467 d. Bowley v. Barnes i. 594 d. "Wollaston v. Barnes ii. 279, 446 d. Higginbotham v. Barton. . . .i. 467, 468 d. Bamford v. Barton i. 272 d. Cheney v. Batten i, 444 d. Johnson v. Baytup i. 467 d, Uall V. Benson < .ii. 794 Doed. d. d. d. d. d. d. d, d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. Thomas v. Benyon i'. 480, 481,' 618 Kinglake v. Beviss i. 344 Leicester v. Biggs i. 443 Lewis V. Bingham i. 643 Nash V. Birch i. 444 "Willis V. Birchmore i. 69, 467 "Wetherall v. Bird i. 506, 524 Hatch v. Eluck. ii. 350 James v. Brawn '■ 593 "Warren v. Bray i. 589, ii. 279 "Winnall v. Broad-. i. 801 Brown v. Brown ii. 643 Bacon v. Brydges.i. 880, 888, ii. 10, 342 Nepean v. Budden i. 467 Spilsbury v. Burdett i. 475, 484 Haden v. Burton .• i. 342 Priestley v. Callaway ii. 446 Ash V. Calvert i. 443, ii. 93, 449 CounseU V. Caperton.i. 622, ii. 493, 505^ 556, 576 Lord T. Cargo i. 578 Salt V. Carr ii. 69t Bingham V. Cartwright i. 579, ii. 578 Smith V. Cartwright i. 310, ii. 291 Davis V. Catacre ii. 281 Rogers v. Cadwaller i. 444 Bank of England v. Chambers. . . .ii. 471 Oxendon v. Chichester. ii. 643 "Wilkins v. Cleveland (Lord), .i. 449, 674, ii. 486 Loscombe v. Clifford, .i. 580, ii. 553, 595, 816, 817 Higgs V. Cockell ii. 531 Bodenham v. Colcombe i. 346 Coyle V. Cole i. 528, 595, ii. 552, 570 Hammond v. Cook i. 673 Harding v. Cook i. 646 Fryer v. Coombs i. 043, ii. 571 Daniel v. Coullhred i. 312, 333 Cox ii. 887 Dunning v. Cranstoun ii. 643 "W"yndham v. Date ii. 816 Jenkins v. Davies i. 6, ii. 618 Davies v. Davis ." ii. 605 Lloyd V. Deakin i. 640 Oldnall V. Deakin i. 640 Fosser v. Derby (Earl) i. 402, ii. 10, 17, 245 Pritehard v. Dodd i. 257 Bring ii. 737 Sykes v. Durnford ii. 467 Laurie v. Dyeball i. 646 Duncan v. Edwards i. 624, ii. 346 Marriott v. Edwards i. 468, 880, 885 Rowcliffe V. Egremont (Earl) . . . .ii. 935 Marchant v. Errington. . . .i. 472, ii. 6 Poole V. Errington i. 879, 885, 888 Lloyd V. Evans i. 431, ii. 262 Fleming v. Fleming i. 274, 631 Clarges v. Forster i. 443 Derby (EarJ) v. Poster ii. 216 Frankis v. Frankis i. 445 Burrows v. Freeman ii. 294, 445 Handson v. Pyldes ii. 737 Smith v. Galloway ii. 738 Gosley v. Gosley ii. 916 Nanny v. Gore ii. 413 Egremont v. Grazebrook i. 274 Green i. 334 Harrop v. Green i. 50 TABLE OF CASES OITBD. Ixxi Boe d. Brown v. Greening ii. 643 d. Wartney v. Grey ii. 531 d. Barring v. Griffin i. 269,. 640 d. Gniillim v. Guillim ii. 768 d. Edwards v. Gunning ii. IS, 451 d. Davy r. Haddon iL 102 d. "Wliitalcer v. Hales i. 444 V. Hall ii. 445 d. Simpson v. Hall i. 886 d. Hiirrison v. Hampson i. 648 y. Harcourt ii. 271 d. Ellis T. Hardy ii. 686 V. Harlow ii. 11 d. Heed v. Harris i. 181 d. Shellard v. Harris i. 132, 142, 144 d. Haldane v. Harvey ii. 550 d. Northey v. Harvey i. 271 d. Sayer v. Hatton i. 69 d. Graham v, Hawkins .i. 346, 347 d. Parsons v. Heather i. 885, 888 d. Tyndale v. Homing ii. 488 4. Putland v. Hilder i. 622, 674 i. Hiseocks V. Hisoooks . .ii. 635, 7lS, 769 i. Preedy v. Holtora ii. 643 V, Huddart ii. 11, 42, 43 4 Chevalier v. Hurthwaite ii. 735, 780 d Carter v. James i. 1 45 d. Pritehard v. Jauncey i. 136, 527 d. vjeorge v. Jessonr i. 640 d. Caldeoott v. Johnson i. 816 d. 'Wliittiok V. Johnson i. 646 d. Bajgaley v. Jones i. 333, 527 V. Kaa i. 886 d. Shrewstary (Earl) v. Keeling ii. 443, 480 d. Barrett v. Eemp i. 755 d. Ubetev. Eilner i. 580, ii. 582, 595 d. Ei>;remont(Lord) V. Langdon. .i. 155, 156 d. Hughe* V. Lakin ii. 236, 282 d. Walsh \ iangfleld i. 213, 355, 646, ii. 556 d. Spioor V. hen iL 794, 795 d. Edwards t. Leach i. 8S5 d. Mee T. Ltherland i. 528 d. Howell V.Lloyd i. 673 A Williams \ Lloyd i. 623, ii. 356 d. Bennett v. Long i. 880 d. Tyrrell v. Lyford ii. 643 d. Maddoofc t. Lyne ii. 618 d. Orzel v. Madoi ii. 281 d. Martin v. !4artin ii. 527 d. Templemai v. Martin iL 735 V. Mason i. 244, ii. 454 d. Griffin v. Mison i. 643 d. Mason v. Miaon i. 652 d. Woodmas v Mason L 624 V. Cawthorn v. Mee ii. 445 d. Bassett v. liew iL 451 d. Bumford v. Miller L 885 d. BuUen v. Mils L 467 d. Waithman v. Milla i. 425 d. Sturt v. Mobbs i. 346, iL 915 d. Morgan y. Morgan ii. 777, 780 d Phillips V. Morris ii. 525 d Wood V. Morris i. 578 c. Harrtsott v. Murrell i. 40 4. Gord V. Needs iL 761, 780 d. Knight v. Nepean i. 640 d Perry v. Newton-. u. 610, 615, 620 d. Bengo v. UiehoUs L 73 Doe d. Garrod v. OUey iL 295 d. Weld v. Ormerod i. 258 d. Bowdler v. Ormerod L 258 d. Bowdler v. Owen. .ii. 440, 481, 552, 817 d. Brimley v. Palmer i. 444 d. Lloyd V. Passingham i. 389 d. Wildgoose v. Pearce ii. 440, 480 d. Pring V. Pearsay i. 648 d. Shearwood v. Pearson L 578 d. Flower v. Peck L 444 d. Bristow v. Pegge L 467 d. Hall V. Penfold, iL 468 d. Johnsons v. Pembroke L 258 d. Church v. Perkius iL 578, 917, 925 d. Winter v. Perratt ii. 632 d. Human v. Peltett L 311, 527 d. Jacobs V. Phillips iL 440 d. Smith V: Pike L 647 d. Hardman v. Pilkington i. 885 d. Blakenell v. Plowman i. 622, 674 d. Beard v. Powell ii. 498 d. Oliver v. PoweR L 468 d. Woodhouse v. Powell i. 643, 704 d. Lewes t. Proeoe iL 11 d. Egremont (Earl) v. Pulman i. 283 d. Wineliley v. Pye L 444 d. Jackson v. Ra,msbottom i. 468 d. Futterv.RandaU..L 250, 268, 271, 275, 276 d. Penwick v. Reed i. 673 d. Pearson v. Ries ii. 543 d. Hulin V. Richards i. 523 d. Huidly V. Rickarby i. 333 d. Sutton y. Ridgway i. 212, 271, 286 &. WUlan V: Roberts iL 294 d. William IT v. Roberts iL 444 d. Reece v. Robsou. .L 301, 340, 344, 347 d. Morris v. Roe iL 326, 328 d Tindal v. Roe L 506 d. Gilbert V. Ross iL 350, 552, 569, 816, 817 d. Morris v. Rosser iL 103 d. Worcester (Trustees) v. Rowland, .i. 812 d. Toilet V. Salter i. 859 d. Neal© v. Samples ii. 440, 480 d. Blayney v. Savage i. 310, iL 44ft d. Graham v. Scott L 673 d. Strode v. Seaton. .L 153, 468, 528, 529, ii. 11, 43" 291 d. Foster v. Sisson i. 219, 244, 743 d. Padwiek v. Skinner i. 357, 360 d. Molesworth v. Sleeman i. 219 d. Hanson v. Smith ii. 446 d. Jersey v. Smith ii. 735 d. Wright V. Smith i. 504, 608 d. Knight v. Smythe i. 467 d. Fleming v. Somerton iL 544 d. Curtis V. Spitty ii. 527 d. Lichfield (Earl) v. Stacey i. 346 d. I-Iodsden v. Staple L 673 d. Digby v. Steel L 470 d. Walker v. Stephenson ii. 975 d. Clarke v. Stillwell i. 644 d. Gainsford v. Stone i. 473 d. Mudd v. Suckermore.ii. 596, 601, 609, 618 d. Bowerman v. Syboum L 479, 673 d. Tilman v. Tarver i. 281, u. 618; 619 d. Courtail v. Thomas. L 140, 154, 156, 159 d. Didsbury v. Thomas L 231 a. Clarke v. Thomson ii 833 Ixxii TABLE OF CASES CITED. Doe d. Manton v. Thrupp .i. 52'? T. Tooth i. 39 d. Webber v. Thynne (Lord George) . i. 346 d. Pattershall v. Turford. . .i. 305, 339, 854, 360, 362, 645 d. Teynham (Lord) v. Tyler. i. 59, 306, 336, ii. 15 d. Gallop V. Towlea i. 306, 342 d. Rowlandson v. Wainwright i. 486 ii. 488, 570 d. Stephenson v. Walker i. 757, ii. 975 d. Oldham v. Walley ii. 481, 485 V. Wallinger ii. 601 d. Peter v. Watkins i. 142, 153, 156 d. Lowden v. Watson i. 422, 468 d. Smith V. Webber ii. 17, 103 d. Sweetlaud v. Webber 1. 313, 529 d. Norton v. Webster ii. 659, 735 d. Westlake v. Westlake ii. 781 d. Bridgerv. Whitehead i. 816, 821 d. Marlow v. Wiggins i. 467 d. Jones v. Wilde i. 69 d. Wood V. Wilkins ii. 447 d. Armstrong v. Wilkinson i. 837 d. Morse v. Williams ii. 17, 569 d. Foley v. Wilson i. 674 d. Burdett v. Wright i. 674 d. Hanley v. Wright. i. 673 ,d. Hopley v. Young i. 435 Doker v. Hasler i. 79 Dolby V. lies i. 467 Dolder v. Huntingfield (Ld.) i. 626 Domett V. Young i. 434 Donaldson v. Thompson i. 630, ii. l7l, 176 Doncaster (Mayor) v. Day i. 400, ii 217 Donellan's Case i. 831 Donnison v. Elsley -. . .i. 229, 230, 234 Door V. Geary ii. 738 Dormer v. Portesoue i. 50, 56 Douglas' Case ii. 822 V. Forrest ii. 204 V. Holme i. 647 V. Scougal i. 629 Dover v. Maester i. 580 Dowden v. Fowle i. 464, 488 Dowdeswell v. Nott i. 41 Dowling V. Ford i. 501, 502 Down's Case i. 859 Downes v. Moreman ii. 444 V. Skrymsher i. 854 Downing v. Butcher i. 761 Downs V. Cooper i. 468, 517 Dowset v. Sweet ii. 717 Dowton V. Cross i. 489 Doxon V. Haigh ii. 514 Drabble v. Donner ii. 531 Drake v. Marrryat , . . . .ii. 303 V. Smith (or Smyth), .i. 337, ii. 270, 293, 448 V. Sykes i. 521 Drant v. Brown i. 579, ii. 578 Draper v. Crofts i. 444 Draycott V. Draycott ii. 281 Drayton v. Dale i. 468 Dresser v. Clarke i. 45 V. Stansfleld ii. 400 Drew V. Prior ii. 603 Driffield v. Orrel ii. 27 1 Drinkwater v. Pater i. 233 Drummond's Case i. 285, 288 Du Barre v. Livette i. 135, 136, 138 Du Bost V. Beresford i. 180 Ducket V. Williams '.'' ^S'' Ducksworth v. Harrison i. 882 V. Johnson i. 94 Dufferin (Lord) Case of. ii. 275 Duffin V. Smith i. 142, 151 Duins V. Donovan ii. 280 Duncan v. Hill 1. 803 V. Louch i. 859 v^ Scott i. 468, ii. 363, 379 Duncombe v. Daniell i. 525 Dundas v. Weymouth (Lord) i. 861 Dunford v. Trattles I'm Dunn V. Aslett il 99J V. Murray ii. 1 '3 V. Packwood i. loS Dunn V. Slee i. f26 Dunster v. Tresider i. '95 Dupuy V. Truman ii. dl7 Dupuys V. Shepherd i. 619, ii,275 Durham (Bishop) v. Beaumont. . .i. 286, ii/975 (Corp.) V. Roxburgh (Duchess). .iJ 800 Durrell v. Bederley :'. 781 Durston v. Tutham i. 845 Dutton V. Colt i. 18, i. 213 Dyke v. Aldridgo i. 488 V. Brewer ,ii. 331 Dyson v. Wood iL 390 E. Eagleton v. Kingston ii. 696, 602, 610 Eakins v. Tresham ii. 688 Earner V. Merle L 761 Eardley v. Turnook , L 850 Earl d. Goodwin v. Baxter i. 704 V.Lewis ,..ii. 291, 295 Earle v. Picken i. 422, 534 East India Company v. Glover i. 785 Eastmure v. Lawes ii. 26, 35 Eastwick v. Harman i. 80O Eaton V. Jervis ii. 615 v. Lyon ii. 804 Eccles V. Hill il 354 Eccleston v. Petty (or Speki).257, 258, 485, 522 Eden v. Blake ii. 670 V. Bute (Lord) ii. 735 Edgar v. Blick i. 579 Edgell V. Curling ii. 833 Edie V. East India Company i. 621 Edmonds v. Eowe , i. 19 V. Walter ii. 894 Edmonstone v. Plaisted ii, 37T V. Webb , i. 59T Edmunds v. Downes : ii. 745 V. Greves | i. 797, 798 V. Newman \ i. 525 Edwards' Case i. 464 V. Crock i. 92, 181, 644 V. Lucas i. 861 V. M'Leay \i. 688 V. Hees .i. 306 V. Eonald 4. 205 V. Sharren ii, 276 V. Vesey ii, 308 Egg V. Bornet i. 703 Ehronsperger v. Anderson u.B2T TABLE 01" CASES CITED. Isxiii Eicke V. Nokes i. 157, 450 Ekins V. Dormer i. 310 Elden v. Zeddel. .'. ii. 452 Elderton's Case i. 619 Eldridge v. Nott i. 659, 660 Elgar V. "Watson i. 787 Blkin V. Janson i. 816 Elliott V. Edwards i. 622 Ellis V. Cowne i. 370 Y. Hardy. i. 181 V. Saltan i. 166 T. Wall , i. 785 V. "Walson i. 470, ii. 287, 289 I V. Faucett i. 181, 760 Elston V. Wood i. 491 Elton V. Larkins i 506, 524, ii. 288, 972 Elwes V. Elwes i. 627 Ely (Bishop) V. Bentley ii. 102 (Dean and Chapter) v. Caldeoott . . . i. 310, 448 V. Stewart ii. 481 V. Warren i. 754 Emerson v. Blonden i. 92, 518 Emery v. Grocock i. 673 Emmett v. Butler i. 51, 52 V. Norton i. 22, 787 England d. Syburn v. Slade i. 468, 673 Ennis v. Donuisthorne 1. 401 Bntick V. Carrington ii. 519 Eriskine v. Murray i. 621 Ernest v. Brown i. 800, 886 Erringlon's Case — (See E. v. Errington.) Erskine v. Euffie i. 743 Essex (Earl), Case of— (See E. v. Essex.) Evans v. Beattie i. 526 V. Birch i. 675 V. Evans i. 627 V. Fryer i. 881 V. Getting ii. 300 V. Lake i. 353, 489 V. Lewis i. 852 V. Morgan i. 274, 589 V. NichoII i. 469 V. Ogilvie i. 793 V. PhiUps ii. 307 V. Pratt ii. 709 V. Reea.i. 219, 236, 237, 239, 247,ii. 4J3, 524, 841 V. Sweet ii. 627 V. Taylor i. 236, ii. 293, 414 V. Yeatheard i. 73 Evelyn v. Haynes ii. 32 Everingham v. Eoundell ii. 572 Everett v. Lowdham ii. 885 Everth v. Bell i. 789 V. Hannam ii. 174 Ewens v. Gold i. 74 Ewer V. Ambrose ii. 381, 962, 991 v. Preston i. 489 Exeter (Mayor) v. Coleman ii. 315 V. Warren i. 340, 346 Exon V. Eussell i. 845 Byre v. Palgrave ii. 464 F. Fabrigas v. Mostyn i. 519 Faohina v. Sabine i. 17 Fagan v. Dawson i. 51, ii. 355 Fairlie v. Denton i. 170, 172, 444 V. Hastings i. 507, 614 Fairmaner v. Budd i. 474 Faith V. Pearson ii. 174 Falcon v. Benn .i. 830 Falconer v. Hanson i. 411, ii. 251 Falmouth (Earl) v. Moss i. 137 V. Eoberts ii. 483,498 Parrar v. Hutchinson i. 474 Farringdon v. Clerk i. 469 Fasset v. Brown i. 643, ii. 503 Faulder v. Silk ii. 265 Fawcett v. Fowlis ii. 104 Fazakerly v. Wiltshire i. 626 FeUows V. Clay,.. i. 649 v. Williamson i. 186 Fenn d. Pewtress v. Granger i. 57, 68 d. Thomas v. Griffith i. 576, 578 Fenwiek (Sir J.), Case of i. 167 V. Hall i. 784 V. Eeed i. 135 T. Thornton i. 490 Ferguson v. Mahon...i. 623, 800, ii. 139,192, 203 V. Spencer i. 74 Fermer v. Loraine. . . .' ii. 270 Pernley v. Worthington ii. 556 Ferrand v. Mihigan . . . ; ii._1013 Ferrars v. Arden ii. 32 Ferrer v. Oven ii. 400 Ferrers v. Shirley i. 479, ii. 601, 602 Field v. Beaumont ii. 816 V. Curtis i. 74 V. Homing or Flemming i. 506 Fielder v. Eay i. 578 Figg V. Wedderborne i. 262 Filliter v. Minchin . .•. ii. 615 Filmer v. Gott ii. 688 Finch v. Messing ' i. 306, 338 Finden v. Westlake i. 171, 446 Firkin v. Edwards ii. 527 Firmin v. Crucifix i. 794 Fisher v. Boucher i. 172 v. Clement i. 632 v. Dudding ii. 355 V. Graves i. 281 V. Homing i. 147 V. Kitchingman ii. 361 V. Lane ii. 136, 389 V. Ogle ii. 171, 174, 176 V. Wainwright i. 802, 808 Fishmongers' Co. v. Dimsdale ii. 488 T. Robertson. . .i. 467, ii. 468, 488 Fitch V. Smallbrook ■ ii. 361 Fitz V, Babbitts ii. 567 Fitzgerald v. Elsee ii. 504 V. Faucouberg i. 643 Fitzjames v. Moys i. 15 Fitzwalter Peerage Case i. 265,- 450, ii. 619 Flad Owen, Case of ii. 176 " Fleming v. Gooding i. 467 Fletcher v. Braddyll i. 645, 780, ii. 294 V. Calthrop i. 642 V. Proggatt i. 406, 420 V. Greenwell i. 42 Plindt V. Atkins ii. 416 Flinn v. Callow ii. 651 Flower v. Herbert i. 74, 464 V. Toung ii. 285 Isxiv TABLE' 6P Oases cited. S'olkard' V. Semet ii. 312 Folkes V. Chad i. 778 i"onnereau v. Poyntz ii. 737 iPonsick V. Agar ii. 251 Poote V. Hayne i. 135 Porbes v. Wale ii. 480, 481 Ford V. Gay ii. 213 V. Tates ii. 680 jorley d. Canterbury (Mayor) v. Wood. .ii. 794 Jbrman v. Dawes. i. 886, 887, ii. 342 S'ort V. Clarke i. 257, 471 J'orty V. Imber i. 828 Poster's Case — (See R. v. Foster.) V. Bank of England ii. 311 V. Blakeloek i. 478 V. Charles i. 633 V. Compton ii. 361 V. Jolly ii. 673, 691 V. Pointer i. 886, ii. 527 V. Steele i. 629 Poulkes V. Sellway i. 180, 760 jpountain- v: Boodle- i. 632, 761 V. Young i. 136 tox V. Jones ii. 307 r. Waters i. 423, 500 JVadley t. Pradley i. 837 France v. Lucy ii. 526 i^rancia's Case i. 566, ii. 540, 596 i'ranois r. Doe i. 467 !lS'rancisco v. Gihnore ii, 851 Jrank v. Prank ii. 266 Frankland v. M'Gusty ii. 194 PrSmkum v. Falmouth' (Earl) i. 888 Fraser v. Hopkins ii. 285 Freeman v. Arkell i. 166, ii. 555 v. Baker ii. 289 V. Phiffipps i. 235, 243, 247 iPfeimoult V. Dedire' .■ ii. 428 Friedlander v. London Ass. Co ii. 992 Frogmorton t. Scott i. 467 Froguell v. Lewelyn' . . ; i. 431 Frontine v. Frost ■.-. . .-.■ i. 821 Frost V. HoUoway ii. 943, 946 Froswell V. Welsh .-. i. 643 Fry V. Wood- ii. 480 Fuller V. Protch .a 101, 104, 444 V. Lane 1. 652 V. Prentice ii. 827 Furley v. Newnham ii. 825, 851' Fumeaux v. Hutohings i. 753, 754 FurneFS v. Cope i. 595 F'arsdon v. Ologg i. 304 Fyson V. Kemp ii. 354 G. 6alian V. Mainjay ii. 135 Guinslord v. QrammaT i. 140, 159, 517, 523, 624 Galbraith v. Neviller ii. 136, 182 Gale V. Halfknight i. 202 V. Lewis i. 794 V. Williamson- ii. 655 Ganer -v. Lanesborough (Lady). . .1. 623, ii, 428 Ganvill V. Utting i. 594 Gape V. Handley ii. 800 Garden v. CressweU ii. 829 Ctafdiner' Peerage Case . . A. 182, 266, 479, 630, 631 Gardiner v. Tadia i. 160" Gardner v. Merett ii. 215 V. Moult i. 449, 450, 517- Garland v. Scoones ii. 361 Garnet v. Ball 1. 517 Garnett v. Perrand ii. 103 Gamons v. Bernard i. 233- V. Swift i. 570, ii. 571 Garrels v. Alexander ii. 598 Garrett v. Handley ii. 682 v. Lister iL 452 Garrick v. Williams , ii. 350, 580 Garth v. Howard i. 507, 513 Gartside v. Eadeliffe i. 639 Gas Company v. Clarke ii. 320 Gathercole v. Miall ii; 554- Gaunt V. Wainman i 472, ii. 6 Gauntlett v. Whitworth i. 779 Geaeh v. Ingall i. 812 Geery v. Hopkins ii. 311 George v. Surrey ii. 596 V. Thompson ii. 527 Gerish V. Chartier i. 753, ii. 901- Germain v. Frederick i. 852 Geyer v. Aguilar ii. 99, 171 Gibbon v. Coggon i. 489 V. Peatherstonehaugh , i. 703 V. Powell ii. 527 Gibbons v. Wilcox i. 495 Gibbs V. Pike ii. 1012 Gibson v. Hunter i. 750, ii. 1008 V. King i. 369, 644 V. M'Cartby ii. 51, 91 T. Winter i. 484 Gigner v. Bayly ii. 326, 328 Giles V. Smith ii. 559 T. PoweU ii. 911 Gilham's Case i 554, 658 Gill V. Shelley ii. 166 Gillard v. Bates i. 141 Gillies V. Smither ii. 469, 557 GiUingham v. Laing i. 172 Gimbert v. Coyuey iL 194 Girdlestone v. M'Gowan i. 70 Gisborne v. Hart ii. 400 Gladstone v. Neale i. 851 Glanville v. Paine i. 643 Glave T. Wentworth ii. 363 Gleadow v. Atkin.i. 344, 347, 364, 366, 370, 526 Glenister v. Thynne (Lady E.) i. 466 Glossop V. Pole ii, 268 Glubb V. Edwards ii. 493 Glyn T. Houston ji. 3x8 Glynn v. England (Baak) i. 338, 364, 368 V. Thorpe- ii. 2 Goater v. Nunneley ii. 326 Goddard'a Case ii. 166, 660 V. Ingram i. 502 Godefroy v. Jay ii. 355 Godfrey v. Norris ii. 492 V. TurnbuU ii. 276 Godmanehester (Bailiffs) v. PhilUps . A. 39, 103, 648 Godson V. Smith ii. 32 GoSfv. Mills .....ii. 829 Gold V. Canham ij. jgi Goldie T. Gunston j. 454 v. Shuttleworth i. 523 Golding V. Niaa j. 69 Goldsohmidt v. Marryat .'.k 332 TAJBlir OF OlSBS CITED. Ixxt G'oldschmidt v. Meyor .ii. 323 Goldshede y. Swan ■...■.... ii. 760 Goodacre v. Breame i. '!3 Goodered v. Armour ii. 541 Goodes v. Wheatly i. 829 Goodinge v. Goodiuge ii. 713, 768 Goodliff V. FuUer ii. 321, 323, 329 Goodman v. Cliase ii. 760 Goodrich v. Jones i. 146 Goodright d. Cliarter v. Cordwent. i. 444 d. Walter v. Davids i. 444 d. Stevens v.Mosai. 87, 161, 255, 260, 263, 270, 279 V. Saul i. 267, 630 Goodtitle d. Parker v. Baldwin . . . . .i. 660, 674 d. Eevett v. Braham i. 779 d. Bridges v. Cliandos (Duke) i. 339,704 d. Braine v. Dew i. 219 d. Pinaent v. Lammiman i. 859 d. Baker v. Milbum. . , .i. 644 V. Southern ii. 643, 735 d. Bremridge v. "Walter i. 859 Goodwin v. "West ii. 819 Gordon v. Austin i. 845 V. Gordon i. 861 v. Secretan ii. 486, 489 (Lord George), Case of (see R. v. Gordon) • i. 206 Gorham v. Thompson ii. 276 Gorton v. Dyson ii. 451 Goslin V. Corry ii. 1012 Gosling V. Bimie i. 469 Goss V. Nugent (Lord) ii. 637, 665, 692 V. Quinton. ...-..,,. .- . . .i, 420, 425 V. Tracey ii. 492 V. Watlington i. 307, 488, 526, ii. 291 Gough v. CeoU ..•..-... ■. . .ii, 505 Gould V. Barnes .i. 466 v. Jones ii. 618 V. Oliver i. 793 Gouldsworth v. Knight i. 468 ©raeewood v. ii. 326 Grafton (Duchess) v. Holt ii. 997 Graham, Case of. i. 614 T. Dyster ii. 538, 966 V. Hope.- ii. 276 v..Maxwell ii. 173 V. Peat .i. 646 v. Robertson i. 852 Grant v. Gould .ii. 102 v. Jackson i. 432, 470, 495 v. Maddox ..,,,,..... >. .ii. 790 V. Moser i. 626 Gtavenor v. "Woodhouse ...<.. i. 468 GtJaves v. Key i. 453, 474 Gray's Case .i. 859 V. Cookson .................... ii. 104 V. Palm«r i. 496 Greaves v. Ashlin. ii. 679 Grteen (or Greene) v. Brown i. 642 V. Dunn i. 420 V. Gaturk i. 401 V. Greenbank i. 850 V. Heame i. 785, 793 V. Hewett ii. 267 V. Jones i. 76 V. New River Co. . . .ii. 3, 12 V. Proude ii. 271, 357 V. Smithies i. 800 V. Sutton .....i. 47 Green (or Greene) v. Waller. •.■ i. 624 v. "Warburton .i. 72 Greenlaw v. King i. 158 Greenough v. Gaskell. . .-. i. 134, 136, 142, 160 Greenshields v. Crawford ii. 508 Greenway, Ex parte i. 596 Greenwood v. "Woodham ii. 2^6 Gregg's Case i. 566 V. Wells i. 454, 465 Gregory v. Christie ii. 788 V. Doidge i. 468 V. Howard i. 427, 431 V. Parker i. 518 Grellter v. Neale i. 643, ii. 504 Greswold v. Kemp ii. 914 GreviUe v. Chapman ..i. 781 Grey v. Sharp ■. .U; 735 Grierson v. Eyre ■ . . . . .i. 620 Grifan v. Smythe , . . . .ii. 326 Grifath V. Davies, .' i. 159; 517 V. Matthews i; 652 V. Williams i. 524, ii. 615 Griffiths V. Ivory ii. 617 Griffits V. Payne i. 750 .Grigg's Case. i. 84 Grimwade v. Stephens.. . .■..-. . . .i. 269, ii. 103 Groenvelt v. Burrell". . . . . .ii. 103, 305, 308, 320 Groom r. Bradley. i. 16 Grose V. West...... i. 647', 648 Grove v. Ware. . .■ ii. 549 Groves v. Western Canal Co i. 464 Guest v. Caumont i: 859 V. Elwes i. »79, 883 Guidon v. Robson i. 466 GuUy v. Exeter (Bishop)... . .i. 470, 528, ii. SSS Gunnis v. Erhart . ..-.•. ii. 678 Gunpowder Plot, trial for .i. 564 Gunter v. M'Tear ii. 865' Gurford v. Bayley. ..... ......... .i. 881 Gurr V. Rutten .i. 173 6uttei4dge V. Smith, . . .i. 791 Guy V. Gregory i. 7SS V. West. A.' 648 Guilliam v. Hardy ii. 386 Guinness v. Carroll. ii. 182, 1 92 Gwinnet v. PhiffippS .i. SSI Gwynne v. Sharpe i. 795 Gyles V. HiU. .ii 354 fi:. Sabershaw V. Troby . , . . .i; l6S Haddow v. Parry. i. 311 Hadlejr v. Green ii. 21, 26 Hadrick V. Heslop... i. 50, 65 Hagedom v. Reid i. 353, 645, ii. 572 Haigh V. Brooks ii. 760 Haire v. Wilson i 632 Halden v. Glasscock ii. 413 Halifax (Lord), Case of i. 815 Ball's Case i. 250, 540, 551 V. Bainbridge.. i. 504, ii. 331 V. Bell ii. 556 V. Cazenove. ii. 6^9 V. Farmer ii; 448 r.HUl ...i. 517 t. Hoddesden ii. 219 V. Maule ...i 642 Ixxvi TABLE OF CASES CITED. Hall T. Odber u. 181 T. Rex i. 1i Hallaok v. Cambridge (Univ.) i. 642 HaUett V. Oousens ii. 894 T. Mears i. 824 Halae T.Byston ii. 292 Haly V. Lane i. 468 Ham V. Toovey i. (Int. Chap.) xvii Hanulton v. Aston Ii. 15 T. Dntoh East India Co ii. 113 Hammerton v. Hamraerton i. 621 Hammond v. Howell ii. 103 V. Stewart ii. 819 Hamond v. ii. 214 tire V. Peirce ii. 180 Hanbury v. Ella i. 882 Hancock v. Welsh . '. ii. 11, 32 Handford v. Palmer i. 851 Hands v. James i. 643 Hankey v. Wilson i. 468 Eannaford v. Hunn ii. 102 Hansard v. Ro,binson i. 596, 591 Hanson's Case — (See R. v. Hanson) V. Parker i. 486 V. Shackleton L 625 Hany v. Broad i. 625 Hardcastle v. Sclater ii. 414 Hardie v. Grant i. (Int. Chap.) xvii Harding v. Crethorn i. 450 V. G-reening i. 633 V. Jones i. 431 Hardman v..Willcock i. 469 Hardy's Case — (See R. v. Hardy) V. Alexander i. 205, 206, 161 Hare v. Munn i. 14 V. Shearwood ii. 616 Hargest v. Eothergill ii. 521 Hargrave v. Hargrave i. 254, ii. 853 Harman v. Anderson i. 469 V. Jappenden .-. . . .ii. 103 V. Tan Hatton i. 421, 431 Harmer v. Davis i. 434, 464 Harper v. Brooke i. 306 V. Charlesworth i. 650 Harratt v. "Wise ii. 216 Harrington v. Pry ii. 509, 601, 603, 631 V. Macmorris i. 193 Harris v. Aldrit ii. 328 V.Cook i. 859 V. Hill i. 154, ii. 552, 816 V. Lincoln (Bishop) ii. 135 V. Mantle i. 826 V. Tippet ii. 900, 911 Harrison's Case i. 534, ii. 231 V. Bevington .■ i. 821, 955 V. Blades. . .i. 304, 310, ii. 499, 858 V. Douglas i. 192 V. Dunn i. (Int. Chap.) xx V. Harrison ii. 505 V. Heathoru i.466 V. Mooro i. 426 V. Vallance i. 486, 531 V. Williams ii. 315 V.Wood i. 801 V. Wright i. 454 Harrow v. Rysllp ii. 161, 168 Hart V. Alexander ii. 216 V. Hart 1. 643, ii. 559, 511 V. Horn i. 10, 486 V. Newman , , , . . ..i. 451, 411 Hart V. Stephens , i. 51 Hartley v. Wharton i. 823, ii. 145 Hartshorne v. Watson i. 102 Harvey's Case — (See R. v. Harvey) V. Clayton i. 139 V. Johnston i. 889 V. Key i- 425 V. MitcheU |j- ^^4 V. Morgan ii. 521 Harwood v. Goodright i. 639 V. Keys i. 490 V. Sims i. 219, 233, 242, 280 Haslam's Case — (See R. Haslam) i. 109 Hastings Peerage Case ii. 256, 351, 265 Hatch V. Blisset , ii. 821 Hatfield v. Hatfield .•■•■'.!• ^^ Hathaway v. Barrow i. 59, ii. 50 Havelock v. Cook i. 435 Eockwood ii. 113 Hawes v. Watson i. 469 Hawkes v. Salter i. 645 Hawkesworth v. Showier i. 51, 88 Hawkins v. Howard i. 154 V. Rutt i. 645 V. Warre i. 519, ii. 518 Hay V. Pisher i. 862 Hayues v. Hare ii. 644 V. Hayton ii. 363 V. HoUiday ii. 188 V. Gymer i. 443, 444 Haywood v. Pirmin , .i. 216 Head v. Head L 641 Headlam v. Hedley i. 641 Healey v. Thatcher i. 426 Healy v. Toung ii. 855 Heane v. Rogers i. 453, 464, 410 Hearne v. Turner i. 12 Heath v. Sausom i. 198 Hebden v. Freeman ii. 292 Helyear v. Hawke i. 501, 513 Heming v. Wilton ii. 26 Hemming v. Parry i. 881 Hemmings v. Robinson i. 468 V. Smith i. 6:^2 Henderson v. Henderson ii. 66, 192 V. Wild i. 498 Henley v. Soper ii. 193, 206 Hennel v. Lyon ii. 381, 382 Henry v. Adey i. 623, 624, ii. 416 V. Cole i. 619 V. Lee or Leigh, .i. 510, ii. 290, 6'iO, 925 Henshaw v. Pleasance ii. 101 Henson v. Cooper ii. 611 Herbert v. Ashburner ii. 308 T. Cook ii. 165, 182 V. Pigott ■ i. 485 V. Reid ii. 135 V. Tuokal i. 250, 256 V. Walters ii. lOll - V. Wiloocks i. 202 Hereford (Bishop) v. Bridgwater (Duke).ii. 313 Herring v. Cloberry i. 134 Hervey v. Ilervoy i, 261, 214 Hesketh v. Pawcett i. 830 Heslop V. Bank of England ii. 311 Hetherington v. Kemp i. 646 Hevey's Case j, 5B4 Hewitt V. Piggott i. 414, 446," ii.' 323 Hewson v. Brown ii. 343 Hey V. Moorhouso ^ i. 518 TABLE OF CASES CITED. IxKvii Heysham v. Foster ii. 413 Hibberd v. Knight i. 146 Hick V. Koats i. 703 Hickey v. Burt i. 485 V. Hayter i. 478 Hicks T. Beaufort (Duke) i. 451, 704 Higginson v. Clowes ii. 678 Higgs V. Dixon ii. 467 V. Taylor i. ,156 Higham v. Kabett i. 859, 860 V. Ridgway i. 248, 301, 305, 339, 340, 344, 347, 357 Highfield r. Peake ii. 251, 347, 381, 386 Higgins V. Senior ii. 681 Hildyard v. Smith ii. 330 HiUard v. Phaly i. 258 Hill's Case i. 559 V. Aland ii. 323 V. Eatemau ii. 104 V. Elliott i. 135, 431 V. (jrange ii. 633 V. Kitching i. 73 T. Manchester Waterworks Co i. 284, 449, 471, 473 V. Salt i. 886 V. Saunders i. 468 T.White i. 799, 804 HiUary v. Waller i. 673 HUliard v. Phaley ii. 19 Hillyard v. Grantham ii. 91 Hime v. Dale L 626 Hirst's Case — (See R. v. Hirst) Hitchin v. Campbell ii. 27, 32 Hoar V. Mill i. 187, 839, 861 Hoare v. Coryton i. 369, 489, 644 V. Graham ii. 673 Hobhouse v. Hamilton ii. 351, 582 Hobson V. Parker U. 312 Hockin v. Cooke i. 845 Hodcnpyl v. Vingerhoed i. 498 Hodge V. Fillis i. 845 Hodges V. Atkis ii. 315, 320 T. Horsfall ii. 744 Hodgkinson v. Fletcher i. 80, 646 V. Willis ii. 382 Hodgson T. FuUarton i. 447 V. Merest i 490 Hodnett v. Forman ii. 493 Hodson V. Sharpe .i. 467 Hoe V. Natliorpe or Nelthorpe ii. 93, 450 Hoffman v. Pitt i. 74 Hogg T. Snaitli ii. 63s, 673 Holcombe v. He wson i. 749 '. Holcroft'a Case — (See R. v. Holcroft) Holden v. Hartsink i. 703 Holder v. Coates i. 648 Holding V. Pigott ii. 791 Holdswoith V. Dartmouth (Mayor) ii. 993 HoU T. Griffin i. 469 Holland v. Hopkins i. 801 V. Reeves i. 412, ii. 906 HoUiday v. Atkinson i. 644 HolUs V. Goldfinch i. 756 Holloway v. Rakes i. 304, 334 Holman v. Barrow i. 619 Holme V. Green i. 502 Holmes v. Custance ii. 718, 781 Holt V. Miers ii. 272, 361, 527 V. Squire i. 623 Honeywood v. Peacock ii. 492 Hood V. Reeve i. 517 Hopcroft V. Keys i. 468 Hope V. Atkins ii. 676, 677 Hopewell v. Do Pinna i. 640 Hopkins v. Neal i. 41 Horford v. Wilson , . .ii. 1012 Home V. Bentinok i. 163, 164 V. M'Kenzie i. 585, ii. 928 v. Smith ijj 829 Tooke's Case — (See R. v. Tooke) Homeyer v. Lushington ii. 176 Horsefall v. Testar i. 861 Hoskin v. Cooke i. 626 Houlditch V. Cauty i. 147 V. Donegal (Marquess). . .ii. 182, 194 Houlston v. Smith or Smyth i. 182, ii. 399 Hounsfleld v. Drury i. 633, ii. 400 Houseman v. Roberta. . .i ii. 527 Houstman v. Thornton i. 642 Hovil V. Stephenson ii. 492 How V. HaU i. 580, ii. 539 Howard de Walden, Peerage Case i. 260 v. Canfield ii. 917 V. Duncan i. 622 V. fehipley i. 129 V. Smith i. 423 v. Ti'emaine ii. 213 v. Williams ii 527 Howell v. Lock i. 99 v. Richards i. 861 V. Thomas L 884 V. Wakins i. 622 Hoyle V. Cornwallis (Lord) i. 625 Hubbard v. Johnstone ii. 285 Hudson V. Jones i. 793 Huet V. Le Mesurier ii. 281 Hughes's Case i. 571 Hughes V. Biddulph i. 146 V. Budd ii. 527, 528 V. Cornelius ii. 171 T. Parker i. 837, 846 V. Rogers ii. 618, 994 Hulke V. Piokeriug i. 703 Hull T. Vaughan i. 467 Hulton V. Bolton i. 787 Hume V. Rundall i. 93 Humphrey v. Knight ii. 269 Humphreys v. Boyce i. 79, 518, 527 V. Budd i. 626 Hungate v. Gasooyne i. 268 Hunt V. Andrews '. ii. 289 V. Hort ii. 638, 643 v. Massey i. 644 Hunter v. Deloraine (Lord) i. 620 V. King i. 60 v. Neek i. 622 Huntingdon Peerage Case i. 266, 267, 270, ii. 265 Huntley Peerage Case .'. .i. 256, ii. 278 Hurd V. Foster i. 471 V. Maring i. 167 V. Martin i. -166 Hurst V. Watkins i. 807 Hutchins v. Bernard ii. 856 Hutchinson's Case ii. 181 V. Bowker ii. 710, 789 V. Piper i. 846 Hutton, In re i. 640 V. Warren ii. 790 Huxham t. Smith. n. 165, 166 Ixzviii TABLE OF CASES QIXED. Huxley v. Berg ..., i. 54 Hyokman v. Shotbolt ' i. 466 Hyde v. Jqtiuson i. 5.18 I Ifebett T.,I-eaver i. ^99 Iggul(i?u V. M-^y., il. 804 Ilderton v. Ilderton ii. 91 Ilmgwortji y. Leigh i. 338, ii. 298, 383 Ijoperial Gaa Co. v. Clarke ii. 314 tnglia T. SpQnce. i. 434, 435 lagrafu y. Dade. i. 104 .V. Lawson i. 794 V. Lea i. 579, U. 578, 679 Ijinell Y, Newman J . . .i. 485 Ireland v. Powell i. 219, 233 Irjali Society v. Derry (Bishop) ii. 265, 1007 Irnham (Lord) v. Cliild ii. 644 Irving V. Cli'eenwood ..i. 760 V. Motley i. 507 Isaek V. Clarke i. 674 IS.quierdo v. Forbes ii. 181 Israel v. Beajamin i. 791, ii. 379 Ivat y. Pinah i. 304, 311, 314, 530 Ives' Case ii. 3, 300 Ivey V. Young i. 882, 887 J. Jackagn v. Allaway i. 841 v.. Allen U. 531, 532 V. Benson ii. 957 V. Bull i. 38 y. Carrington. i. 886 V. Cater ii. 616 'V. Faii'bank i. 501 V. Galloway i. 73 .V. Tii.ojnpson ii. 400 Jmdh V. Hungate i. 820, ii. 829 V. Lee ii. 526 V. Lindsay, .i. 411, .690, ii. 925, 926, 929 Jaeoba V. Humphrey i. 522 V. Laybura i. 99, 102 V. Tarleton ii. 913 Jaggersv. Binnings. .,.. i. 500 James, JJx parte , i. 83 T. H.atfleld i. 41, 485 T. Williams. .* , ii. 760 Jameson V. Earner i. 172 Janaon v. Stuart , i. 757 V. WUaon ii. 211 Jardine t. Si(oridan. i. 426 Jarrett v. Lepnard i. 443 Jayer v. Garnett i. 203 Jeans v. "Wheedon i. 585, ii. 232, 237 Jee y. Hockley ii. 270 Jefferies v. Watts, i. 466 Jefecy v. Walton ii. 679 Jelf y. Oriol , i. 87r> Jelfs V. Ballard i. 821 Jenkins v.. Biddulph i. 580 V. ilarvoy i. 629 V. Phillipa i. 879, 886 Jenkinson v. Pepya ii. 678 Jenner v. Clegg i. 444 Jenya v. Fawler i. 468 Jenviaon v. Dyaon i. 660, 755, ii. 293 Jjarvoise v. Northumberland (Duke) ii. 93 Jessel V. Mdlinghen ii. 324, 329 Jeaua College v. Gibbs ii. 553 Jewisoa v. Dyer it 278 John's Case— (Se,6 R. v. John) i. 95 V. Ourrie... .i. 886 Johnaon v. Durante i. 166, ii. 103 v. Gilson i. 413 T. Graham ■ i. 76 V. Lawson i- 248, 268, 270 V. Lewellin ii. 489 V. Mason i. 69, ii. 468 V. Ward i. .449, ii. 289 Johnston v. Parker i. 251, 255 Jolley V. Taylor i. 580, iL 540 Jolly T. Young . , ii. 710 Jones V. Bow ii. 90, 92 V. Brewer ii. 499, 851 V. Brooke .i- 128 V. Carrington i. 310, 527 T. Clayton i. 827 v. Cowley i. 881 V. Dunthorpe ii- 219 V. Edwards ii. 526 V. Herbert i. 485 V. Jones i. 527, ii 509 V. Littledale ii. 681 T. Mara i. 845 T. Mason ii. 493 V. Morrell i. 39, 446 V. Newman ii. 778, 780 T. Palmer ii. 326 T. Perry i. 180 V. Pritohard i. 74 T. Radford i. 468 V. RaudaU ii. 275, 357, 379 v. Stevens i. 761, ii. 28.9 V. Stroud i. 585 V. Tarleton. ..... i. 596, ii. 549, 552 V. Tucker ii. 737 V. Turberville i. 492 V. Tumour i. 468 V. Waller .i. 338, ii. 439 v. White ii. 51 y. Williams i. 755 Jordaine v. Lashbrook i. 117, 128 Jordan v. Lewis ii. 306 Jory v. Orchard. ii. 544 K Kahl V. Janaon i. 514 Kain y. Old ii. 688 Kaines v. Knightley ii. 664 Kay v. Brookmau ii. 498, 505 Koable v. Payne ii. 50 Keaue v. James ii. 571 Kearney v. King i. G25, 636 Keeling v. Ball ii. 557 Kooue V. Dearden i. 673 Kell V. Nainby i, 466 KolUngton (Vicar) v. Trin. Col '.'ii. 414 Kelly V. Powlet ii. 768 V. Small i. 617 Kemble v. Farren i. 496, ii. 790 Kemp V. King i. 837| ii. 816 Kempland v. Macaaley i. 489, 521 Kemptou d. Eoyfield v. Gross. i. 624, il 449, 452 Kenn'a Caso ii. 90 TABIB 01" e4.SES CITED. Ikxix Kennedy v. Casilis (Earl) ii. 181 Kensington ¥. Inglis. iL .564, 51S, 911 Kent y. Burgess ^ i. 631 V. Lowen i. 531 Kenworthy v. Sohofield ii. 143 Kenyon v. Wakes i. 800 Ker v. Shedden ii. 288 Key T. Shaw i. 1'72 Kidney v. Cockhum i. 260, 266 Ki]lmorrey Peerage Case i 258, ii. 447 Kilmarnock (Lord), Case of i. 889 Kilner v. Bailey i. 809, ii. 26 'Kinder v. Williams ii. 822 Kindersley v. .Chase it 113 Kine v. Beaumont ii. 644 King V. Baker ,.,., i. 288 V. Francis .i. 160 -V. Inliab. of AH Saints i 84 V. Inliab. of Eathwick i. 85 V. Jnhab. of .Cliviger i. 84 V. King ii. 325 V. Norman i. 793, 194, ii. 12 V. Reginam n. 356, 362 V. Waring i. 161 Kingham v. Robins i. 181 Kingsmill v. Bull i. 62 1 Kingston (Duchess), Caseof.L 136, ii.3, 41, 92, 161, 303, 925 (Mayor) v. Homer i. 660 Kingworth v. Leigh ii. 15 Kinnersley v. Orpe. ii. 11, 218, 350 Kirtland v. Pounsett i. 859 Kirwan v. Cookburn ii. 216 Kitclien v. Manwaring i. 16 Knapp T. Haskall ii. 913 Knight V. Clements. ii. 483 v. Dauler ii. 351 V. M.'Douall i. 193, 819 V. Martin ii. 489, 524 V. Waterford (Marq.).i. 339, 344, ii. 486, 625, ;551 V. Woore i. 860 Enobell v.. F-uller i. 16 1 Knox V. Walley i. 466 Koster v. Reed i. 513, 642 Kufh V. Weston i. 644 iton V. East India Co ii. 315 Lacon v. Higgins . .^ il 428 V. Hooper ii. 288 Laing v. Barclay i. 154 Lainson v. Tremore i. 412 Lake v. Argyle (Duke) i. 461 V. King i. 620 V. Skinner i. 310 Lamb v. Micklethwaite i. 800, 801 Lambe's Case — (See R. v. Lambe.) Lambert v. Hall i. 816 V. Oakes i. 468 V. Pack i. 468 Lambirth v. Roff i. 801 Lamey v. Bishop i. 814 Lampon t. Gorke i. 411, 414, ii. 151, 161 Lancum v. Lovell i. 284 Lane's Caae i. 622, 623 V. Muffins i. 185 Lang T. Gale i. 625 Langdon v. Hulls ii. 544 Langhorn v. Allnutt i. 514 Langley v. Fisher i. 11, 91 T. Oxford .(Earl) i. 606, 524 Latham v. Rutley i. 846 Latkow V. Earner ii. 261 Lautour v. Teesdale ii. 447 Lavie y. Phillips i. 621 Lawless v. Queal i. 424 Lawley (Lady), Case of i. 95 Lawrenqe v. Clark ii. 521 V. Dixon ;ii. 281 V. Hodgson ii. 413 y. Hooker ii. 324 y. Thatcher .i. 110, 615 LawBon y. Mangles . . . , i. 193 T. Sherwood .i. 63S,. ii. 536 Laybourne v. Crisp I 238, ii. 60, 380, 383 Layer's Case i. 106, 164, ii. 696, 615 Lea y. Wheatley ,. i. 135 Leach y. Buchanan i. 468 y. Simpson ii. 228, 231 Leader y. Barry i. 214, ii. 281, 446 Leake y. Westmeath (Marq.) , ii. 399 Leame y. Bray i. 621 Leathes v. Newel or Newit i. 233, 281 Le Canx y. Eden , ii. 99, 114 Lechmere y. Fletcher i. 191 Ledbetter y. Salt i. 434, 464 Lee's Case , , i. 107 V. Barlow ii. 328 y. Birrel i. 139, 164 167 y. Gansell iL 361 V. Huson i. 112 V. Lee i. 310 y. Meecock ii. 283, 356 y. Pain ii. 117, 168 Leeds y. Cook i. 160, ii. 543_, 811 Leery y. Goodson i. 845 Lees y. M^ston i. 205 Leeson y. Holt ii. ,216 Lefeyre v. Lloyd ii. 681 Leggatt V. ToUeryey ii. 306 Leggett y. Copper i. 191 Legh y. Legh i. 484 Leglise y. Champante i. 862, 853 Le Gros y. Leyemore i. 338 Leicester (Lord) y. Walter i. 161 Leigh Peerage Case . .i. 255, 256, 266, 261, 215 Leighton y. Leighton ii. 353 Lemon y. Dean ii. 504 Leonard v. Franklin i. 151, ii, 292 Lepping v. Kedgewin ii. 32 Leslie y. De la Terre , ii. 664 Lethbridge v. Winter i. 650 Leyy y. Pope i. 151, 480 y. Pyne .' i. 6.95 y. Smith ii. 887 Lewis y. Baker ii. 316 y. Hartley , ii. 631 y. Marshall ii. 188, 189 y. Parker i. 820 y. Rogers. i. 188 V. Sapio ii. 596 Liebman y. Pooley i. 512, ii. 512 Lightfoot y. Cameron ii. 820 Like y. Howe i. 435, 464 Lincoln (Bishop) y. Ellis ii. 16 Lindenau y. Desborough i. 182 Lingard y. Messiter , i. 104 Ixxx TABLE OP CASES CITED. Iiipscombe v. Holmes i. 436, 4,65, '792 Lisle Peerage Case. .i. 256, 258, 263, 266, ii. 265 Lister, q. t v. Priestley i. 434 Littler v. Holland i. 845 Livett V. Wilson i. 673 Lloyd T. Freshfleld i. 137, ii. 917, 925 V. Key ii. 855 V. Mostyn i. 147, ii. 527 V. Passingham ii. 281 V. Sandilands i. 703 T. Wait i. 342 V. Wellcey i. 792 V. Willan i. 517 V. Woodall ii. 277, 304 Lobb V. Stanley .■. .ii. 745 Locke V. Norbonne i. 527, ii. 13, 17 Lookett V. Niokliu ii. 680 Logan V. Allder ii. 510 Lolly's Case ii. 180 London (City) v. Gierke i. 219, 237 (Corporation) v. Long . . . .i. 487, ii. 800 (Mayor, &o.) v. Lynn (Mayor) ii. 295 V. Long ii. 800 and Brighton Railway Company v. Pairolough i. 643 Lonegan v. Roy. Excii. Ass. Co ii. 829 Long V. Bailie i. 596 T. Cliampion i. 413 V. Greville i. 791 Lopez V. Andrews i. 659 V. De Tastet i. 850, 857 Lothian v. Henderson ii. 171, 173 Lovat (Lord), Case of i. 99 Peerage Case i. 263, 269 Loveden v. Loveden i. 627 Loveridge v. Botham i. 478 Lowe V. Hunting-tower (Lord) ii. 643, 735 V. JolUffe i. 129, ii, 982 V. Manners ii. 735 Lowry V. Doubleday ii. 828 Lowther v. Radner (Lord) ii. 104 V. Raw i. 754 Lncas v. De la Court i. 496 V. Bades i. 103 V. Godwin i. 508, 516 T. Novosilieski i. 675 Ludlow (Mayor) t. Charlton i. 414 Ludlow V. Charlton. i. 582,640, ii. 379, 380, 524 Lumley v. Quaree ii. 103 Lundie v. Robertson i. 451 Lunnis v. Rose i. 104 Lutterel v. lieynell ii. 073 Luttrel V. Lea ii. 343 Lygon V. Strutt ii. 441 Lynch v. Clarke i. 410, ii. 443 Lynn (Mayor) v. Denton ii. 315 Lyons v. l)a Paaa i. 621 Lysney v. Selby ii. 688 M. Maberley v. Robins i. 622 M'Alpine v. Hangnail ii. 1007 M'Oarthy v. De Oaix ii. 180 V. Smith i. 801, 809 Macartney v. Graham i. 596 M'Combie v. Anton ii. 887 M'Craw v. Gentry ii. 503 M'OuUoch V. Dawea i. 503 M'Daniel v. Hughes ii; 166 Macdougal v. Purrier -i. 704 V. Young ii' 357 MacfersoQ v. Thoytes i- 468, it 610 M'Gahey v. Alston i. 44, 526, 544, ii. 556 M'George v. Bgan }■ 519 M'Guire's Case i- 571 M'lrer v. Humble ii- 285 Mackalley's Case }■ 831 Mackay v. Wood -i- 468 Mackenzie v. Prazer ii. 481 V. Yeo i. 146, 158 Mackintosh v. Marshall i. 645, ii. 289 M'Leod V. Wakley i. 772 M'Namara v. Gibbs. . ., i- 644 M'Neil V. London (Sheriffs) ii. 354 Mace V. Cadell i. 466 Machell v. HUis i. 525 Maddison v. Nuttall. . . .i. 337, 528, ii. 293, 448 V. Shore ii. 819 Maester v. Abraham L 514 Magee v. Atkinson ii. 681, 800 Maguey v. Pisher i. 466 V. Knight i. 578, ii. 535 Magrath v. Hardy ii. 43, 166 Maingay v. Gahau ii. 101 Mainwaring v. Giles i. 652 Maiuwortliy v. Page i. 791 Maitland v. Goldney i. 827 Malcolm v. Pullarton i. 793 Male V. Roberts i. 623 Maler v. Eyloe i. 204 Maley v. Shepherd i. 466 Malkin, Ex parte i. 76 Maloney v. Raitley U. 937 Maltby v. Christie 434 Mallon V. Nesbit , i. 784 Man V. Rioketts ii. 481 Mauby v. Curtis i. 304, 349 il 441, 481 Mancliester Mills, Case of i. 237, ii. 60 Manderston v. Robertson i. 502 Manifold v. Pennington i. 860 Manley v. Shaw i. 15 Mann T.Lang i. 478, 732 V. Owen ii. 102 Manners v. Postan ii. 469 Manning v. Clement i. 343 V. Cox i. 485 V. Eastern Counties Railway Com- pany i. 413 v. Lechmere i. 306 Mant V. Mainwaring i. 47 Marchmont Peerage Case i. 258, ii. 447 Marks v. Lahee i. 305, 341 Mnrmyon Peerage Case i. 257 Marriage v. Lawrence i. 287, 336, ii. 295 Marriott v. Marriott ii. 76 Marsh v. CoUnett ii. 287, 448, 484 V. Meager i. 205, 489 V. Smith i. 49 Marshall v. Cliff i. 517, 524 V. Griffin i. 785 V. Lamb i. 594 V. Lynn ii. 680 V. Parker ii. 174 Marstonv. Downes.L 146, 156, ii. 552, 817, 935 Marten v. Barrett 1. 886 Martin v. Bell U. 523 V. Gilham i. 826 V. Nioolls ii. 182 TABLE OF CASES CITED. Ixxxi Martin v. Tliornton i. 166 Mash V. Densham i. 881 Mason v. Mason i. 641 Massey v. Johnson ii. 104, 307 Masterman v. Judson i. 874 Masters V. Barretts i. 820 V. Masters ii. 716 V. PoUie i. 648 Matts V. Hawkins i. 648 Matthews v. Port ii. 265 Maudsley's Case i. 540 Maugham v. Hubbard i. 585, 590, ii. 917 Maunsell v. Ainsworth ii. 819 Mawson v. Hartsinls; ii. 955 May V. Gwynne ii. 317 V. May i. 251, 589, ii. 283 V. Taylor i. 486 Mayor v. Johnson i. 596 Mead's Case i. 95 V. Daubigny i. 772 v. EobinsOD i. 129, ii. 289, 444 Meagoe v. Simmons ii. 971 Mease v. Mease ii. 651, 677 Meath (Bp.) v. Winchester, (Marq.).i. 6, ii. 480, 525, 528 V. Belfield (Lord) ii. 292 Mee V. Reid i. 18 Meelsins v. Smith ii. 820 Meers v. Stourton (Lord) i. 15 Melen v. Andrews. . .i. 171, 445, 446, 541, 564 Melver v. Humble i. 51 Melville (Lord), Case of.i. 619, 639, ii. 444, 873 Mendham v. Thompson i. 311 Mercer v. Whall i. 810 V. "Wise 1. 435, 464, 470 Meredith v. Pootmer i. 93, 519 Meres v. Ausell ii. 677 Merle v. More i. 134, 155 Merrick v. Wakley ii. 290 Meyer v. Sefton i. 524, 595 Meyriok v. Woods ii. 527 Michel V. Rabbetts ii. 441 Middlesex (Sherifif), Case of i. 620 Middleton v. Brewer i. 791 T. Janverin i. 631, ii. 428 V. Melton, .i. 301, 307, 345, 526, 575 T. Sandford ii. 507 Milbanke v. Grant i. 594 Mildrone's Case i. 18 Miles V. Sheward i. 851 Millar v. Heinrich ii. 428 MiUer's Case— (See R. v. Miller) V. Poster ii. 448 V. Miller ii. 498 V. Travers ii. 638, 717, 750, 775, 780 V. Warre ii. 1011 V. Williams i. 791 Mills V. Barber i. 812, 820 V. CoUett ii. 103 V. Lyne i. 785 V. Oddy i. 135, 156, u. 552, 817 Millwood V. Walter i. 807 Milman v. Tucker ii. 950 Milson V. May i. 833 Milward v. Forbes i. 432 V. Hibbert i. 645 V. Temple i. 523, ii. 505 MinshuU v. Lloyd ii. 556, 559 Mitchell V. Jenkins i. 633 T. Johnson ii. 507 Vol, I. Mitchell V. Tarbutt i. 853 Moilliet V. Powell i. 883 Moises V. Thornton i. 624, ii. 303, 454 Molineaux v. Molineaux ii. 743 Moiling V. Poland i. 622 Molony v. Gibbons ii. 206 Molton T. Harris i. 580, ii. 595 Moncrieff v. Road i. 889 Mondel v. Steel ii. 27, 855 Monke v. Butler i. 816 Monkton v. Attorney General, .i. 245, 249, 250, 254, 260, 263, 269, 271, 275, 280, 281 Monroe v. Twisleton i. 78 Montague v. Dudman ii. 318 Montgomery v. Richardson i. 794 Moody v. King i. 51 V. Thurston ii. 101, 308 Moone v. Witney Union. ii. 788 Moons V. De Bernales ii. 93 Moor V. Adams ii. 828 Moore v. Booth ii. 821, 822 T. Butlin ii. 26 V. Dearden i. 336 V. Ostler i. 761 T. Strong i. 186 V. Tyrrell i. 142, 144, 159 Moravia v. Sloper i. 623 Morel V. Harborough (Lord) i. 508, ii. 103 Morewood v. Wood. .i. 229, 240, 242, 244, ii. 618 Morgan v. Ambrose i. 467 (or Morgans) v. Bridges (or Brydges) i. 466, ii. 899 V. Edwards i. 861 V. Harris i. 809 V. Morgan ii. 498, 775 V. Smith i. 787 V. Thome i. 485 V. Tyler i. 338 Morley (Lord), Case of ii. 230 Morris v. Davies i. 268, 630 V. Hauser ii. 526 V. Jones i. 800 V. Lotan i. 799 V. Miller i. 452, 589, 631, ii. 281 Morrison v. Kelly ii. 307 V. Lennard i. 10 Morrow v. Saunders ii. 326, 328 Morse v. Royal i. 492, 493 Morsley v. Reynoldson ii. 638 Mortimer v. M'Callan. . .i. 508, 595, ii. 287, 444 Moseley v. Davies i. 219, 233, 240, 242, 280 V. Hanford ii. 673 Moses V. Macfarlane ii. 136 Mosley v. Massey ii. 643, 735 Moss V. Smith .■ . . .i. 801, 807 Mostyn v. Pabrigas i. 623, ii. 103, 851 Mott v. Mills i. 436 Mould V. Williams ii. 104 Moulin V. Dalison i. 754 MouDSon V. Bourn i. 622 Mountford v. Harper i. 703 Mountstephen v. Brooke i. 485, 846 Moyser v. Peacock ii. 219 Muller V. Moss i. Via MuUett V. Hunt ii. 833 Mulvany v. Dillon ii. 214, 219 Munn V. Baker ii. 276 V. Godbold ii. 644, 570 Munro v. De Chcmant i. 465 V. Vandam I 629 6a Ixxxii TABIiB or CASES OITEC. Mure V. Eaye i- 623 Murley v. M'Dermot ii. 138 Murray v. Thornhill ii- 312 Musgrave v. Emerson i- S4& Kynn v. Jolifle -i- 1^ Mytton V. Harris ii- 293 N. ISfeal d- Athol (Duke) v. Wildiiig. . . -i. 256, ^i'i lleale V. Fry ii'299 Y. Parkin I 444 V- Swind ii- 326, 331 Needliain V- Traser i. 193 T.Smith i. 99 iJeilan v. Hanriy i- 55 Nelson v. "Whitfal ii- 501 (Earl) T. Beaufort (Lord) ii- 428 Netterville Peerage Case i- 259 Newturgh v. Newbiifgh i. 282, ii. 414, 643 Newby v. Reed i. 642 ilewcastle (Duke) v. Broxtdwe (Hundred) i. "242, 247, 648 Newell V. Simpkin ii. 317 "ITewhall V. Holt i. 422 Newham v. Raithby ii. 282 Newland v. Horseirian ii. 207 liewman v. Stretch i. 204, 422 Newsam v. Carr i. 761 Newsoine V. Coles i. 466, ii. 276 Newtoh V. Boodle ii. 1013 T. Constable ii. 822 T. Harland ii. 827, 829 Jfiohbll V. "Wllliains i. 800 Nieholls V. Dowdihg i. 495, ii. 890 V. Dowhes i. 451, 471 V. Osborne ii. 768 V. Parker i. 219, 242, 246 Nicholson v. Simpson i. 793 V. Smith i. 431 ^ightingal v. Devisme ii. 382 jJixon v. Mayoh i. 164 Noble V. Kenhoway i. 645, 753, 755, ii. 788 Nodiii V. Murray i. 581 Noeir V. "Wells i. 624, ii. 75 Norden v. Williamson i. 53 Norman v. 'Wesoombe i. 792 Jforris v. Norri's .' i. 640 North V. Miles. i. 211, 521, 522 ifortham v. Latoucte ii. 400 Norton v. Melborhe ii. 833, 855 Novelli v. Rossi ii. 193 Nugent (Lord) v. Harecourt i. 620 0. Oakley v. Davis i. 792 Oates iTitus), Case of i. 119 Obbard v. Betham i. 644 Obichiui v. Bligh ii, J 74, 193 O'Coigley and 0' Conner, Case of — (See R. V. O'Coigley) O'Connor v. Cook ii. 270 V. Majoribanks i. 78, 93 Oddis V. Domviile i. 266 Oddy V. Bovil ii. 176 Od-win V. Forbes ii. 205 OgilVie V. Foljambe ii. 678 ^e V, Atkinson i. 469 Ogle V. Norcliffe i 622 Olive V. Guin or Gwyn ii. 346, 582 Oliver v. Bartlet i. 113 V. Cooke ii. 143, 744 Omichund or Omychund v. Barker. i. 15, ii. 303 Ongley v. Chambers ii. 139 Orr V. Brown ii. 205 V. Morice ii- 488 Osborn v. Thompson i. 812, 816 V. Wise ii. 714, 13T Osborne, Ex parte i- 16 Osgathorpe v. Diseworth ii- 168 Oswald V- Leigh •.?■ ''"^ Oughman v. Parish ii. 861 Ougier v. Jennings ii- 188 Outram v. Morewood.i 335, 337, 338, 364, 521, ii. 10, 13, 27, 35, 42 Ovenston v. Wilson ii. 601 Owen V. Warburton i. 168 Oxlade v. Perchard i. 14 P. Paddock v. Forrester i. 112, 430 Padley v. Wellesley i. 82 Page V. Carew .ii. 833 V. Faucet i. 625, ii. 294 V. Hatchett i. 629 V. Leapingwell ii. 135 V. Mann ii. 507 V. Page ii. 169 Palethorp v. Furnish i. 93, 518 Palmer v. Aylesbury (Lord) ii. 38.5 V. Bkins i. 467 V. Sells 1 518 Palmerston (Lord), Case of i. 401 Pardee v. Price ii. 442, 553 Parfltt V. Thompson i. 792 Pargeter v. Harris i. 473 Parker v. Barker i. 202 V. Hoskins ii. 498 V. M'WiUiam ii. 887 V. Manning i. 467 V. Mitchell i. 69 V. Morrell i. 492, 498 V. Palmer i. 845, 851 V. Potts i. 629 V. Tates i. 148 Parkhurst v. Lowten ii. 929 Parkin v. Moon ii. 888, 910 Parkins v. Cobbett ii. 567 V. Hawkshaw i. 135, 523 Parkinson v. Collier ii. 798 Parks V. Edge i. 879 Parry v. Colfis ii. 362 V. Pairhurst i. 879, 883 V. House i. 467 V. May ii. 524 Parsons v. Bellamy i. 337 V. Wilson i. 801 Parteriche v. Powlet ii. 638, 665, 676 Parton v. Williams ii. 103 Partridge v. Coates ij. 528 Pasmore v. Bousfleld i. 594, 799 Paterson v. Gandasequi , ii. 682 Patram's Case i. 109 Patrick, Dr., Case of ii. 102 Patterson v. Becher i. 451, 704 V. Black i. 642 TABLE OF CASES CITBD. Ixxxiii Paul V. Dimes ii. 856 V. Meek ii. 544 Paxton v. Douglass ii. 930, 935 V. Popham ii. 682 Payne v. Rogers i. 484 Peaceable d. Uncle v. WatsoQ. .i. 311, 312, 334, 557 Peacools: v. Bell i. 622, 623 V. Harris I 465 V. Monk Ii. 655 Paarce v. Davis i. 703 V. Hooper ii. 486, 487 V. Morrice ii. 544 V. Ormsby i. 772 Pearson v. Fletcher i. 154 T. Isles ii. 829, 833 V. Lemaitre i. 632, 772 Pease v. Hurst i. 501 Peokham v. Potter i. 531 Pedler v. Paige ii. 499 Pedley v. "Wellesley .i. 80 PeUatt V. Perrars i. 420 Pendrell v. PendreU i. 630 Penn v. Scholey .'L 171, 188 Pennell v. Meyer i. 417, 420, ii. 381 Penny v. Porter i. 845 Peppin V. Solomons i. 839 Perchard v. Hamilton i. 526 Perham v. Raynal i. 601 Perigal v. Nicholson i. 337, 346 Perkin v. Cutlers' (Warden of) Co i. 675 Perry v. Gibson ii. 896 V. Smith i. 153 T. Watts i. 888 Petoh V. Lyon i. 523 Petheriok v. Turner i. 492 Peto V. Hague i. 508, 514 Petre (Lord) v. Blenooe ii. 802 Petrie's Case i. 148 Pettraau v. Bridger i. 652 Petty V. Anderson i. 618 Peyton v. St. Thomas's Hospital, or London (Mayor) i. 507 Pfiel V. Vanbatenberg i. 703 Philips V. B«oon i. 862 V. Shaw L 862 Philipson v. Chace ii. 544 Phillips V. Allan ii. 205 V. Buckingham (Duke) i. 41 V. Bury ii. 102 V. Claggett i. 485 V. Cole i. 304, 332, 333, 480, 531 V. Crawley ii. 9 1 V. Earner i. 188, ii. 899 V. Hunter. . .ii. 135, 166, 170, 181, 182 V. Wimburn i. 583, ii. 246 Philps' Case i. 541 Philpots V. Read ii. 205 Phipps V. Parker ii. 504 V. Sculthorpe i. 467 Phythian v. White ^i. 8-10 Piokard v. Sears i. 4^3, 465 Piokford v. Gutoh i. 436 Pickering v. Ely i. 355 V Noyes ii. 324, 328, 552 Pieton (General), Case of— (See R. v. Pioton) Pierce v. Whale i. 436 Pieroey's Case i. 258, ii. 299 Pisrcy v. ii. 213 Pierson v. Hutchinson ;i. 6%, 697 Pike V. Badmering ii. 982' or Pyke v. Crouch, .i. 362, 389, il 15, 211 Pilkington v. Cooke i. 622 Pim V. Curell i. 237, 239 Pinney v. Pinney ii. !S Pipe V. Steel i. 41 Piper V. Chappel i. 621 Pirie v. Anderson ii. 285 V. Iron ii. 856 Pitcher v. King ii. 347, 363, 819 V. Rinter ii. 389 Pitman v. Maddox i. 352, 370 Pitt V. Chappelow i. 468 ' V. Green i. 8jKI V. GrifBith ii. 498 V. Knight ii. 343 Pittam v. Foster ' i. 503 Pitton y. Walter U. 265, 361, 362 Plaxton V. Dare i. ?19, 235, 282, 307, 311, ii. $6S Plumer y. Brisco i. 593 Plummer v. Woodbume ii. 193 Plunkett V. Cobbett i. 165, 772 Poe, In re ii. 362 Pollard V. Bell ii. 176 V. Smith i. 237, Pomeroy v. Baddeley ii. 885 Pomfret (Lord) v.'Smith i. 283, Pontifex v. Bignold i. 633 Pool V. Court i. 845 Poole V. Dicas i. 345, 352, 354, 356, 357, 361, 363 T. Palmer i. 599 V. Warren ii. 489, 532, 568 Pooley V. Goodwin i. 643, ii. 571 Pope V. Monk i. 435 V. Skinner i. 828 Popish Plot, Trials for i. 213 Poplett V. James i. 44 66 Porter v. Cooper ii. 3.56, 398 Porthouse v. Parker i. 468 Portmore (Lord) v. Goring iL 324, 326: V. Morris ii. 676 Potez v. Glossop i. 644 Pott T. Todhuuter ii. 655 Pottery. Brown ii. 205 Potts V. Durant ii. 292, 441 Powell V. Bradbury .ii. 327 V. Edmunds ii. 678 V. Ford ii. 596 V. Hodgetts i. 217 T. Herd i. 76 V. Horton ij. 788 y. Layton i. 852 v. Milbum i. .815 Pratt V. Dixon ii. 136 Preston v. Can- i. S25 T. Greenwood ii. 788 V. Merceau ii. 637, 677, Price's Case i. 109 v. Boultby ii. 328, 332 V. Carter ii. 461 v. Dewhurst ii. 170, 182, 19a V. Fletcher i. .861 V. Green ii. 999 V. Harwood i. 466 V. HoUia i. 617, iL 341 V. Littlewood i. 229, ii. 290 V. Neale i. 46S V. Page ;i. 780 Ixxxiv TABLE OP CASES CITED. Price V. Torrington (Lord) i. 352, 361, 370 Prideaux v. Collier i. 188 Prince v. Blackburn ii. 493, 499, 505 V. Same i. 415, 538, ii. 913 Pritchard v. Draper i. 492, 502 V. Poulkes i. 158 V. Hitchcock ii. 12 V. PoweU i. 219 V. Symonds ii. 524 V. Walker i. 435, 594 Prltt V. Faircloiigh 1. 353, 645, ii. 512, 573 Proctor V. Lainson i. 488, ii. 251 Proaser v. Gwillim i. 5^0 Provis V. Reed ii. 975 Prudham v. PhiUipa ii. 48 Prudhome v. Praser i. 889 Pullen V. Seymour i. 879 Pulley V. Hilton ii. 445 Purcell V. Macnamara.i i. 862, ii. 382 Pyke V. Crouch — (See Pike v. Crouch.) Q. Quarterman v. Cox i. 103 Queen's Case i. 415, 416, 575, 597, ii. 386, 910, 959, 973 Quelch's Case — (See E. v. Quelch.) E. Eadford, q. t. v. Mackintosh i. 435 Radnor (Earl) v. Eeeve ii. 101 Baggett V. Musgrove i. 447 Ealeigh (Sir "W.), Case of— (See E. v. Raleigh.) Ealph V. Harvey i, 466 Eamadge v. Eyan i. 781 Eambert v. Cohen i. 586 Kamsbottom v. Buckhurst ii. 377 V. Tunbridge. . .i. 576, 579, ii. 578 Eamsden, In re i. 623 Eandall v. Gurney ii. 820, 821 V. Lynch i. 791 Eandle v. Blackburn i. 411, 420 Eandolph v. Gordon ii. 441, 602 Eands v. Thomas i. 105, 129 Eann v. Hughes i . . . . ii. 694 Eapp V. Latham i. 496 EatcUffe (Dr.), Case of i. 136, ii. 50 V. Bleasby ii. 324, 327 V. Chapman i. 244 Eaven v. Dunning i.- 52 Eavenscroft v. Wise i. 788 Eawson v. Haigli i. 203, 204 V. Walker ii. 673 Eawstorne v. Gandell ; i. 485 Kayner v. Hall i. 478 Eead v. Dunamore i. 881 T. Gamble i. 580, ii. 541 V. James ii. 896 V. Passer i. 274, 589, ii. 281 Beading v. Menham ii. 799 B*arden v. Minter ii. 489 Beay v. Richardson ii. 679 Bedford v. Birley i. 207 Eeece v. Trye i. 146 Eoed V. Deere i. 578 T. Jackson i. 229, 239, ii. 2, 55 V. Prosser i. 631 Rees V. Abbot i. 852 V. Bowen ii 381 V. Mansell ii. 484 V. Walters ii. 443 Reeves v. Slater i. 466 Eeid V. Bette i. 575, 579 V. Coleman ii. 326, 328 V. Dickons .i. 791 V. Margison ii. 354 Reilly v. Fitzgerald i. 246 Remmie v. Hall i. 419 Rennie v. Robinson i. 467 Reusse v. Myers ii. 285 Eew V. Pettet .i. 502 Eex or Eeg. v. Abergwelly . . .i. 174, 213, 254, 287, ii. 211 V. Abraham i. 776 V. Adams i. 639 V. Adderbury, East (Inhabitants) (Introd. Chap, xxi.) i. 57, 487, 519 V. Addis i. 116 V. Adey ii 935 V. Aides ...ii. 289, 540 V. Akers i. 163 V. Alford ii. 3B2 v. Alberton i. 630 V. Allen i. 821 V. Allgood iL 312 V. Allison i. 589,' 631, ii. 283 V. Almon i. 633 V. Alsley i. IT T. All Saints i. 275, 643 Worcester i. 84 V. Antrobus ii. 316 V. Anty ii. 59 V. Appleby i. 445, 541, 564, ii. 250 V. Archer ii. 58 V. Arnold ii. 228, 243, 311 V. Arundel i. 639 V. Ashton i. 295, 297 V. Aspinall i. 762 V. Atkins i. 435 V. Atwood i. 110, ii. 531 V. Aylett ii. 310 V. Azire i. 94 V. Babb ii. 314, 319 V. Bailey i. 844 V. Baines i. 642 V. Ball i. 768, 769, ii. 994 V. Baldwin ii. 49 V. Baity ii. 892 V. Banks ii. 60 V. Barker il. 307 V. Barnard i. 1 14 V. Barnes i. 435, ii. 75, 449, 838 V. Barnett ii. 59 V. Barnsley i, 451 V. Barr i. 650 V. Barratt i. 449 V. Bartlett i. 443, 541, 560, ii. 241 V. Bathwick i. 85, ii. 458, 481 V. Beaney i. 626 V. Beard i. 632 , V. Beavan i. 60 V. Bedder i. 64 V. BedeU i. 87, 109, 255 V. Bedingham i. 461 V. Beezley ii. 910 V. Bellamy i. 861, ii. 3r.6, 398 V. Bellringer ii. 800 TABLE OF CASES CITED. IxXXT Eex or Rep:, v. Bennet. . . ii. 246 Rex or V. Benson. . . .i. 572, 642, 844, ii. 382, 386 V. V. Bentley ...u 168, 242 V. V. Berenger ii. 890 V. V. Berrett i. 435 V. V. Bestland i. 642 V. V. Birch . . .ii. 58, 355 r. V. Birchenough u. 57 V. V. Bird .i. 675, ii. 59 V. V. Birkett i. 116 V. V. Blaokmau i. 62 V. V. Blaney i. 60 V. V. Bliok i. 565 V. Bliss .1.219, 233, 234, 334 V. V. Bodle ii.910 V. V. Borrett i. 594 V. V. Boston i. 59, 66 V. V. Boswell . . .i. 544, 551 V. V. Bourdon ii. 356 V. V. Bourn i. 625 V. V. Bowler ii. 266 V. Bowman . . .ii. 306, 356 V. V. Boynes ii. 289 V. V. Bramley i. 96, 251 V. V. Brampton ii. 447 V. V. Brazier i. 214 V. V. Brecknock, &e., Railway Co ii. 320 V. V. Brewer i. 135 V. V. Briggs i. 766 V. V. Brimilow i. 629 V. V. Briscoe (Lady) . . . ii. 853 v.- V. Bristol and Exeter Railway Co. . .ii. 319 V. T. Britton i. 564 V. V. Bromley i. 274 V. V. Bromwich .i. 435f ii. 239 V. V. Brooke ii. 899 V. V. Brookes i. 891 V. V. Broughton i. 58 V. V. Brown i 581, 625, 660, ii. 362 V. V. Brownell ii. 836 V. V. Buckingham u 312, 316, 319 V. V. Budd i 640 T V. Bull ii 910 V V. Bullock i. 891 V. V. Burbage ii. 824 V. V. Burdett 1. 573, 599, 821 V. V. Burley i. 551 V. V. Bury i. 254 V. Butcher i. 554 V. V. Butler . . .i. 564, 824 V. V. Buttery ii. 93 V. V. Cadogan(Earl). . . ii. 319 V. V. Cambridge (University) . . . . .1 622, 623 V. V. Campbell i. 297 V. T. Candey i. 163 V. V. Canning i. 119 T, y. Carlile ii. 2 V. V. Carnarvonshire . . i. 451 T. V. Carpenter i. 389 V. i. 411 V. Caas . . .i. 543, 557 V. V. Castle Careinion. i. 105 T. V. Morton . . . .i. 576, ii. 571 V. V. Castleton i. 586, ii. 514, 567, 570 V. V. Catesby i. 642 V. V. Catterall ..• ii. 167 V. V. Chadderton 254, 287 V. Chapman ii. 891 V. V. Charnock i. Ill V. Chatham i. 451 V. • Reg. T. Cheadle ii. 69T Chester (Bishop) i. 794, ii. 102, 308 (Mayor) ii. 800 , Christian i. 876, ii. 289, 354 . Christie i. 294 Clapham ii. 280 Clark i. 470, 760, 763 Clarke i. 184 . Clear ii. 320 Clements ii. 229 . Clowes, .i. 418, 540, 551, 553, 554, 561 . Cliviger i. 84, 85 Cohen. ., ii. 1014 , Cole i. 62, 765 , Coleorton i. 451 CoUey ii. 88t , Collins ii. 899 Combs i. 815 . Connor ii. 58 Cook (or Cooke). . .1. 65, 632, 771, 875, ii. 841, 885 . Cooper i. 552 . Cope i. 205 , Coppard ii. 362 , Corden i. 642, 821 Cornelius ii. 319 Corsham ii. 168 . Cottingham ii. 168 Cotton i. 239, 245 . Court i. 543, 558 ,■ Coveney ii. 225, 226, 238 . Creswell i. 592 , Crockett i. 293, 29t Crofts ii. 356 , Crpndall i. 351 . Crossfield i. 56» Crossley ii. 289 Crowther i. 213, ii. 226 Cruise ii. 306 , Crumpton ii. 58, 59 . Curtis il 232 Daman i. 642 Daniel ii. 246 Dann ii. 5t Darkin ii. 838 Davis ii. 289 Dawbar i. 110, 115 Deacon i. 766 , Debenham i. 336, ii. 291 . De Berenger. . .i. 620, ii. 272, 929, 935 Deboragh i. 401 , Denio ii. 56T , Dent ii. 435 Despard i. 106 , Dewhurst ii. 246 . Derrington i. 559 Dingier ii. 226, 230 . Dingley i. 551 . Dixon i. 149, 632, 634 . Doherty i. 95 Dolgelly (Guardians) i. 623 , Doran i. 576, 580 , Douglas i. 443, ii. 929 . Dowlia i. 401 . Dowling i. 890 , Downing i. 548 , Drew i. 544, 551 . Duncombe ii. 906 , Dunn i. 548, 772 . Durham i. 110 IxiEXti TABLE OF CASES CITED. 6x or Beg: v. BarneH i. 589 V. Dyke i. 117 V. Eardisland ii. 55 V. East "Winch i. 451, 470 V. Eastern Counties Railway Co. . .ii. 319 T. Edgar i. 542 V. Kdttionton i. 648 T. Edmunds i. 446, 541, ii. 216, 230 V. Edwards i. 844, ii. 232, 968, 987 V. Bdwinstone i. 451 V. Egerton i. 767, 772 V. Eldershaw-. i. 629 V. Eldridge i. 541 V. EUioombe i. 576, 580, ii. 527, 542 V. Ellis. i. 51, 58, 560, 755, 766, ii. 58, 241 T. Ely (Bishop) it 312, 316 T. Emmon ii. 838 V. Enoch i. 544, 557 V. Entrehman- i. 17 V. Eriswell. .1. 174, 213, 232, ii. 209, 211, 230, 250, 254, 270 V. Erith i. 253 V. Errington i. 294, ii. 227 V. Essex (Earl) i. 564 V. Exeter (Chap) i. 659, 660 T. Paber i. 771 V. Eagent i. 294, 296 V. Fagg ii. 243 V. Fallmer i. 541 V. Farieigh ii. 554 V. Farler i. 112, 117 ■ V. Farr ii. 892 V. Farley i. 139 V. Parrington i. 632 V. Fearnshire i. 583, ii. 246 V. Fellows i. 541 V. Fenton ii. 525, 540 V. Ferry Prystone. . X 174, 213, 254, 287, ii. 211 T. Finney ii. 303 T. Fisher i. 434, ii. 246 V. Fitzgerald ii. 288 V. Flaherty i. 642 T. Fleet CWarden) ii. 6 T. Flemir.ing ii. 228 T. Fletcher i. 65, 540 V. Flintshire ii. 660 V. Forbes ii. 226 V. Ford ii. 968 T. Forsyth i. 619, 891 V. Foster i, 540, ii. 246 V. France ii. 228, 232 T. Franklin ii. 274, 275 v. Frederick i. 90 V. Frost i. 97, 877 V. Fuller ii. 233 V. Fursoy i. 595, ii. 552 V. Gadbary i. 765 V. Garbett i. 563, ii. 244, 936 V. Gardner i. 434, ii. 276 V. Garner i. 544, 554 T. (Jay i. 297 V. (iazard i. 165 V Geoi-ge i. 65 V. Qibhons i. 136, 548 V. Gibney i. 559 V. Gibson ii. 9.^ V. Gilham i. 19, 138 V. Gillbrass ii. 838 V. Gilson i. 576, 550' Bex or Beg. v. Gisbum i. 103 T. Gisson ii. 58 v.Gleed i. 85 V. Glossop i. 859 V. Goadby ii. 58 V. Goldshede i. 563 V. Goodere ii. 885 V. Goodwin i. 594 V. Gordon.!. 207, 592, 594, 832, ii. 3, 355, 826 V. Gouohe i. 643 V. Gould i. 768, ii. 60 V. Grady ii. 225, 226, 238 T. Graat i. 554 V. Gray i. 287, 583 V. Great Bolton .u. 168 V. Great Farrington ii. 318 T. Great 'Westowe ii. 317 V. Green or Greene i. 558, ii. 243, 272 V. Greenaore i. 540, u. 240, 310 V. Greenaway ii. 816 V. Greenwick 1. 254 v. Griffiths i. 557 T. Grimes ii. 14 V, Grimwood ii. 289 V. Groombridge i. 629 T. Grounsell i. 831 V. Grundon ii. 102 V. Gully i. 619 T. Gutoh i. 633 V. Gutteridge ii. 58, 231 V. Gwyn ii. 446 V. Hadden ii. 890 V. Hagan . . . ; ii. 230, 232 v. Hagell i. 642 T. Hains ii. 389, 443, 450 T. HaH i. 12, 583, 639, ii. 246 T. Hanley i. 469 y. Harbonne i. 640 V. Hardwick i. 211, 487, 493, 548 V. Sardy i. 565, u. 907, 917, 949 V. Hare i. 622 V. Hargraves i. 1 13 V. Harringworth ii. 461 T. Harris i. 583, ii. 246, 247, 910 V. Harrison ii. 239, 317 T. Harvey i. 655, ii. 90 V. Haslam L 109 V. Haslingfield ii. 413 V. Hastings i. 110, 116 V. Hatfield i. 648 V. Haughley ii. 454 V. Hawkins i. 815, ii. 527 V. Haworth i. 663, ii. 540, 541 V. Hay i. 641 V. Haynes i. 889 V. Ilayward i. 296 V. Hazy i. 672, 821 V. Head i. 675, ii. 442 V. Hearn i. 510, 644, 657, 558 V. Hebden ii. 13, 14 V. Helling i. 642 V. Henderson ji. 57 V. Hendon (Inhabitants) i. 342 V. Hensey ii. 596 V. Helfett i. 544, 658 T. Hewins j. 876 V. Heydon ii. 319 V. Heyford (Lord) i. 342 V. Hiokling ii. 104, 169 TABLE OF CASES CITWO. Ixxxvii Rei or Reg. v. Higgins. i. 540, ii. 997 V. Hishfield i. 563 •V. Higson ii. 244, 416 V. Hill i. 632, 830 V. Hinckley i. 642 V. Hinks i. 62 V. Hialey i. 112 V. Hinxmaa ii. 246 V. Hirst ii. 246 V. Hodge i. 554 V. Hodgkiss i. ^65 V. Hodgson. i. 762, 768, ii. 946 V. Hogg ii. 230 V. Holcroft ii. 56, 60 V. Holden ii. 911, 969 V. Holland i. 889, ii. 307 V. HoUingshead ii. 246 V. HolUster ii. 320 V. Holmes i. 558 V. Holt i. 620, 843, ii. 274, 275 V. Holtham i. 108 V. Holy Trinity i. 678 V. Hooper ii. 2, 249, 350 V. Hopper ii. 582 V. Hough i. 769 Howard i. 592 Howe ii. 962 Howell i. 291 Howes i. 552 Hube i. 581 Hucks i. 297 Huet i. 583, ii. 246 Hug'nes i. 559, ii. 289 Hulcot i. 643 Humphries ii. 542 Hunt i. 207, 590, 632, 773 Hurley i. 571, 572 Hutchinson i. 287 lies ii. 3, 362 Ings ii. 524 Jackson i. 831, 891 Jacobs i. 583, ii. 246 Jagger i. 94 James ii. 382 Jarvia i. 110, 821 Jellyman i. 94 Jenk i. 844 Jenkins i. 544 John i. 95, 292, 297, ii. 240 Johnson. . .i. 61, 183, 645, ii. 227. 228, 310, 554, 631 Johnstone i. 843 Jolliffe i. 400, 401, 629 Jones. . .i. 110, 401, 540, 544, 557, 560, 694, ii. 56, 241, 246, 303, 469, 838, 851 Kea i. 87, 255 Eenilworth ii. 168, 553, 567 Kenrick i. 65 Kerne i. 435 Kerr i. 559, 560 Kimber ii. 244 King ii. 59, 444 Kingston i. 548, 557 Kirkwood L 768 Knaptoft ii. 47, 167 KnoUys i. 620 Koops ii. 414 Lafone i. 65 Liiiiidon i. 472, ii. 659, 683, 697 Lambe i. 532, 637, 583, ii. 246, 248 V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Rex or Beg. v. Lambert i. 776 V. Lancashire (Justices) ii. 65 V. Land Tax (Commissioners), .ii. 291, 308 V. Landulph i. 647 V. LatobCord, i. 450 y. Laugher i. 644, 558, ii. 244, 697 V. Layer ii. 250, 540 V. Leake i. 650 V. Ledgard ii. 289, 444 V. Lee ii. 319 V. Leefe i. 861, 862 V. Leicester ii. 318 V. Leigh i. 219, 233, 236, 239, ii. 55 V. Levy i. 889 V. Lewis i. 560, 563, ii. 944, 946 T. Lincoln ii. 362 V. Lingate i. 552 V. Lisle ii. 14 V. Little i. 642 V. Lloyd i. 287, 540, 558, 660 V. Lockart i. 654 V. Locker i. 90 ¥. London (Mayor, ic.) iL 228, 309 T. Long i. 767, 768, ii. 243 V. Long Budtby i. 643, ii. 571 V. Lookup i. 862 7. Lovett i. 632, 633 V. Low ii. 47, 167 V. Lubbenham i. 478, ii. 280 V. Lucas u. 312, 313, 321 V. Luckup i. 61 V. Luffe i. 87, 630 V. M'Carty L 583 V. M'Naghten i. 779 V. M'Phane ii. 58 V. M'Rae iL 60 V. MagiU ii. 243 y. Mallinson i. 821 y. Malvey ii. 247 y. Mansfield L 8,7, 255, 268, 631, 772 y. Marsh i. 167 V. Marshall ii. 231 V. Martin i. 762, 768, ii. 60, 290 y. Mattiugley ii. 658 V. Mazagora i. 632 y. Mead ii. 319 y. Medley i. 634 y. Megson i. 184, 292 y. Merceron i. 563 V. Merchant Tailors' Co.. .u. 312, 314, 320 V. 'Meredith il 60 V. Merthyr TidvU i. 679 V. Middlehurst i. 830 y. Middlesex (Justices), (In re Bow- man) ii. 306 y. Middlezoy ii. 486 y. Midlam ii. 307 y. Millard i 768, 770 y. Miller i. 619, ii. 278 y. Mills i. 544, 557 y. Milton (Inhabitants) i. 236 y. Mintou i. 843 y. Mogg L 767 y. Montagu i. 659 y. Moore i. 537, 767, ii. 249 y. Moores i. 116, 591, iL 540, 543 V. Moran iL 987 V. Morgan ii. 616, 620 V. Morley 11239 y. Morpbew ii. 261 Ixxxviii TABLE OF CASES CITED. V. v. V. V. V. V. V. V. V. V. V. V. V. T. V. V. V. T. V. V. V. . V. . T. V. Eex or Reg. v. Morris .1. 642, ii. 382, 386 , Mortlock ii. 539, 544 Morton i. 544, 557, ii. 559 ' i. 554 , Mosley i. 292, 294 Mothersell ii. 2^5, 442 .Murlis ii. 896 , Murphy i. 294, 594, ii. 885, 894 Napper i. 891 , Neale i. 114 . Netlierthong, ii. 443, 481 Netherseal ii. 93 NeviUe i. 451, 473 Newcastle ii. 314 , Newton i. 453, 542, 692, ii. 968 Nicholas i. 12, 184, 214 , Noakes i. 114 . North Bedburn ii. 559 , North Petherton ii. 280 Northleaoh, &c.. Roads (Trustees).ii. 320 . Northwingfield ii. 659 Nottingham i. 272, ii. 318 Nuneham Courtney . . .i. 174, 213, 254, ii. 211 . Nunez i. 58 . Nutt i. 558, ii. 997 Nuttey i. 254 O'Coigley ii. 930 O'Connell i. 205, 591 , O'Connor i. 889 , Oldbury ii. 169 , Oldroyd ii. 986, 990 , Olney ii. 658 Orchard i. 892, ii. 91 1 Orgill i. 469 , Orton ii. 842 Osborne. . .i. 184, 187, iL 228, 800, 801 Oulton i. 619 , Owen i. 108, 562, 630, ii. 242 , Packer ii. 246 Padstow i. 578 Page ii. 3, 362 , Paget (Lord) ii. 997 , Pain i. 642 Painter i. 14, ii. 225 , Parker i. 583, ii. 974 , Parratt i. 557 Parry ii. 67, 306 , Parlridge i. 667, 639 Payne i. 862 . Pearce i. 94, 772, 844, ii. 524 Pembridge (Inhabitants) . . .i. 234, 581, ii. 291, 443, 7C7 3 ii. 168 , Perkins i. 288, 292, 294, 890 Perry i. 96 . Phelps ii. 58 . PhUips i, 769 . Phillips. . .i. 681, 583, 629, 771, ii. 246 Philp i. 632 , Picton i. 417, ii. 275, 428, 436 . Piddlehinton ii. 656 Piercy i. 60 ,Pike i. 12, 288 . Pikesley i. 560, 661, ii. 242 T. Pippet i. 862 V. Pitcher ii. 946 T. Plant ii. 57 V. Plumer ii. 240, 294 y. Plummer i. 646 V. . V. V. . V. : V. '. V. V. V. V. . T. V. V. V. V. V. V. V. Rex or V. Reg. T. Pool ii. 58 Potter ii. 228, 232 Pountney i. 548 Powell i. 844, ii. 916 Pressly ; it 246 Preston (Inhabs.) ii. 991 (Lord) i. 15 Pringle i. 619 Purefoy ii- 239 Pye i. 843 Quelch ii. 58, 275 Radburne ii. 216 Radford i. 668 Raleigh i. 564 Ramsden ii. 917 Rawden i. 578, 579, ii. 669 Reading i. 87, 630, ii. 949 Reason i. 296, 297, 683 Reebly ii. 44T Reed ii. 246 Rees L 560, 691 Reid ii. 60 Reilly ii. 56 Remnant ii. 914 Rhodes ii. 288 Richards i. 548, 657, 891 Rickman i. 768 Ring ii. 834 Rishworth i. 253, 272 Rivers. i. 560, 561, 584, ii. 242 Roberts i. 772 Robins i. 762 Robinson i. 772, ii. 838 Roche ii. 240 Rodham ii. 823 Rogers i. 572, 821, ii. 59 Rook L 87, ii. 255 Eookwood i. 106, ii. 955 Rooney i. 768 Roper i. 843 Rosier i. 552 Rosser i. 15 Row i. 643 Rowland i. 64 Rowley i. 401 Rudd — (See Eudd's Case) i. 112 Rudge ii. 954, 955 Russell. . .i. 136, 207, ii. 226, 228, 230, 833, 968 Ryle i. 3 Ryton ii. 443, 481 St. Alban's (Mayor) .ii. 800 St. George ii. 902, 910, 971 St. John i. 891 St. Katharine ii. 280 St. Margaret's, Westminster i. 626 St. Martin's, Leicester . . .1. 579, ii. 578, 917, 925 St. Mary, Lambeth ii. 168 St. Mary's, Nottingham ii. 936 St. Marylebone ii. 311 St. Mildred's 1. 260 St. Pancras ii. 55, 101 St. Peter i. 251 St. Peters i. 96 St. Sepulchre i. 264, ii. 661 Salisbury i. 768 Salter ,. 205 Sandys i. 662, ii. 242 Sansome ii. 244 TABLE OF CASES CITED. Ixxxix Eex or Reg. v. Sarratt ii. 1 67, 168 V. Savage ii. 330 V. Scaife i. 287 V. Soammondeii. . .i. 472, ii. 658, 683, 697 V. Scott ii. 800 V. Scarle i. 779 V. Sellers i. 297 V. Sergeant i. 84 V. Serva i. 20 V. Sexton i. 552, 658, 559 V. Shaftesbury (Earl) ii. 949 V. Sharpe i. 625 V. Shaw i. 559, 778, ii. 2 V. Shellard i. 209, il. 235, 966, 969 V. Shelfey ii. 312, 319, 320 T Shellswell ii. 242 y. Shepherd ' i. 544, 557 V. Sheppard i. 632 T. Sheridan i. 591 V. Sherman i. 51, 64 V. Shilleock i. 583, ii. 246 V. Shipley i. 6/t2 V. Sill i. 91 V. Simmonds ii. 910 V. Simmons i. 631 V. Simmonsto i. 453, 642 T. Simons i. 497, 534, ii. 225, 232 V. Simpson i 294, 544, 626 V. Slaney ii. 930, 935 T. Slaughter i. 548 V. Sloman ii. 829, 833 V. Smallpiece ii. 318 V. Smith . .i. 90, 108, 115, 213, ii. 49, 216, 230, 242, 997 V. Smithies i. 442, 541 V. Sparkes i. 133, 138 V. Spearpoint ii. 303 V. Spencer ii. 382, 386 T. Spilsbury i. 298, 559, ii. 249 V. Staffordshire ii. 31H V. Stallard i. 757 V. Stamford (Mayor) i. 594 V. Stamper i. 473 V. Stanley i. 451 V. Stannard i. 765 V. Steel ; i. 772 V. Steptoe i. 54O V. Siimpson ii. 913 V. Stoke Golding ii. 525, 558 V. Stokeupon-Trent ii. 658, 659, 790 V. Stokes i. lOS V. Stone .1. 60, 206, 821 V. Stoner ii. 91I V. Storyer i. 767 V. Stourbridge ii. 556 T. Stourton i. 87 T. Stowell ii. 835 V. Stratford-upon-Avon (Mayor) . . .ii. 800 V. Stretch ii. 829 V. Summer i. 843 V. Suddis ii. 1.02 V. Sunderland i. 768 V. Surrey ii. 32O V. Sutton. i. 15, 219, 233, 621, 630,li. 272, 275 V. Swallow i. 114 V. Swatkins i. 443, 544, 551, 626 V. Swiimerton i. 564, ii. 250 V. Sykcs ii. 246 y. Taverner i. 771 Rex or Reg. v. Taylor .i.20, 544, 548, 557, 861 V. Teal i. 105, 130, 426 V. Telicote ii. 246 V. Thistlewood ii. 524 V. Thomas i. 557, 559, ii. 225, 246 y. Thompson i. 543, 557 T. Thoruhill i. 524 V. Thornton i. 559, ii. 235 y. Thring ii. 362, 398 y. Throgmorton i. 564 V. Thrusoross ii. 295, 446 y. ThurteU i. 91, 554 y. Tilley i. 60 V. Tilney i. 150 V. TindaU ii. 1015 V. Tippet i. 541 V. Tooke i. 207, 469, 704, ii, 362, 602 y. Topham i. 435 y. Tordoft ii. 227 V. Tower Hamlets (Commissioners of Sewers) ii. 317, 321 y. Townsend ii. 55 V. Trayers i. 10 V. Treharne i. 889 y. Trenwyth i. 594 y. Trowbridge i. 451 V. Trowter i. 29t v. Tubby i. 563 V. Tucker i. 13 v. Tuff i. 543 v. Turner, .i. 445, 821, ii. 49, 56, 312, 449 v. Tyler i. 548 y. Upper Boddington.i. 135, 140, 145,154, ii. 816 y. Upohurch i. 544, 557 v. Upton i. 453 V. Upton Gray i. 642 y. Upton St. Leonards ii. 853 y. Utterby ii. 341 y. Tan Butchell i. 292, 297 V. Vandereomb i. 766, ii. 56 y. Varlo ii. 800 V. Vaughan i. 766, ii. 885 v. Verelst i. 592 y. Vickery i. 57, ii. 834 y. Vincent I 207, ii. 93 v.Toke i. 772 y. Tyse ii. 303 y. Wade i. 12 V. Wakefield i. 96, 451 v. Walford ii. 310 v. Walker i. 184, 561, 563 v. Walkley i. 540, 557 v. Walter i. 633, ii. 249 y. Ward ii. 235, 238, 356, 398 y. Wardle L 843 v. Wareham i. 254 v. Warner i. 558 v. ■\Varwickshall i. 532, 543, 554 V. Washbrook ii. 103 v. Watkinson i. 157 V. Watson . .i. 97, 110, 163, 164, 205, 207, 449, 680, 590, 638, 645, ii. 294, 303, 458, 525, 877, 890, 912 y. Webb i. 116, 563, ii. 886 v. Welborn i. 294, 297 V. Weller ii. 225, 249 V.Wells i.ll6 V. Westbeer ". 230 y. Wheater i. 563, ii, 935 xc TiBLE OF CASES CITED. Bex or Reg. v. "Wheeley.i. 5«1, 562, 582, ii. 242 V. Wheelook ii. 16S V. White i. 541 V. "Whitehuroh i. 642 T. Whiting i. 58, 165 T. Whitley (Lower) i. 487 V. Wick, St. Lawrence ii. 168 V. Wickiiam i. 8ai, ii. 697 ■W. Wigley ii. 820 V. Wild i. 109, 559 V. Wilde L 620 T. Wilkes i. 116 V. Wilkinson ii. 248, 249 v. Williams, .i. 11, 12, 14, 60, 90, 557, 780, ii. 609 T. Willis i. 567 T. Wilshaw u. 230, 241, 415 V. Wilson .1. 860, ii. 246 T. Wilts and Berks Canal Go! ii. 319 T. Wink i. 184 V. Winkles. ii. 326 V. Winkworth : i. 767, 772 V. Withal -. i. 831 V. Withers i. 154,- 619, 620, ii. 277 V. Woburn (Inhabs.) ; i. 57, 487 T, Womersley ii. 838 T. Wood .ii. 853 T. Woodchester ii. 169 r. Woodcock i. 95, 285, 292, 295, 296, 297, ii. 226, 230 T. Woodley ' i. 155, 156 V. Woodward i. 626, 890, 891 T. Wooldale i. 466, ii. 698 V. Woollord ii. 57 V. Worsenham ii. 319, 327 V. Worth i. 306 V. Wrangle i. 579, ii. 578 Y. Wright i. 779 V. Wye ii. 47, 168, 169 V. Wylde ii. 887 V. Wylie i. 767, 770 V. Yarwell i. 451 V. Yates i. 59 V. Telvertoft .i. 253 V. Tend i. 541 V. Yeoveley ii. 399 T. Yewin ii. 971 V. Yni,sawdra ii. 168 Iteynell v. Lewis L 467 teeyner v. Pearson i. 514 Beynolds v. Fenton i. 623, ii. 203 Bilpbans v. Crickett i. '^92 Uice V. Shute i. 852 Bioli V. Jackson ii. 637, 677 toliarda v. Bassett L 229, 245, 247, ii. 291 V. Bluok i. 887 V. Frankum i. 172, 411, ii. 467 V. Richards i. 640, 761 Jtichardson v. Allan li. 982 V. Anderson ii. 436 V. Edmonds ii. 737 V. MelUsh ; ii. 288 T. Watson . . .ii. 709, 711, 735, 738, 782 Eiehey v. Ellis ii. 330 J^iehmond v. Smith 1. 633 fipkards v. Murdcck i, 782 icketl V. Salwey .i. 860 Eider V. Edwards i. 623 ilidgway v. Ewbank i. 812, 816 Ridley v. Gyde i. 203, 204, 583 V. Tindall i- 195 Rigg V. CurgenTew i. 479 Ripon V. Davies i- 159 Ripper v. Walton .i. 809 Rippiner v. Wright ii. 571 Rishton v. Nesbitt i. 254, ii. 821 Rivers v. Griffiths i- 830 Roach T. Garvan ii. 118, 182 Robb Y. Starkey . . t "■ 520 Roberts v. AUatt ii. 937, 943, 949 Y. Barker ii. 791 V. Bradahaw "- 544 Y. Carr i- 650 Y. Doxen i. 595 V. Bddinglon ii. 303 Y. Elsworth i 802 Y. Fortune ii. 101 Y. Herbert i- 827 Y. Justice i. 313, 332, 530 Y. Malston i. 160 Y. Snell i. 879 Robertson y. French L 647, ii. 285, 632 V. Jackson ii. 789 Robins v. Maidstone 1. 197 Robinson's Case i. 491, ii. 12, 32 Y. Brown ii. 649 Y. Markis ii. 251, 855 V. Nahon i. 465 Y. Searson i. 466 Y. Smythe ii. 869 Y. Vaugliton i. 585 Y. WUliamson.i. 219, 240, 337, ii. 270 Y. Yarrow i. 468 Robson Y. Alexander i. 432 Y. Andrade i. 486 V. Att. Gen i. 268, 269 Y. Kemp . .1. 144, 153, 156, 203, 205, 489 Y. Rolls 205, 422 Roche's Case ii. 181 V. Cambpell . . . : i. 845 Rochester (Dean and Chapter) v. Pierce . .i. 467 Roden v. Ryde ii 508 Rodriguez v. Tadmire i. 761 Roe V. Aylnaer ii. 312, 319 d. West Y. DaYis ii. 544 Y. Day i. 417, ii. 9l7 d. Pellat Y. Ferrers i. 406, ii. 251 d. Bushell v. Gore i. 270 d. Gregson y. Harrison i. 444 V. Harvey ii. 536 V. Ireland i. 660, ii. 271 Y. Jeffery i. 244, ii. 294 d. Trimleston (Lord) v. Kemmia — (See Trimleston (L'd) v. Kemmis) i. 479 v. Eberall y. Lowe i. 643 Y. Minshall i. 444 y. Parker i. 219, 236, ii. 294 Y. Rawlings ii. 480 d. Bruno y. Rawlins, .i. 250, 313, 338, 340, 347, 446, 11. 618 v. Reading i. 264 d. Wilkins v. Wilkina i. 488 Rogers v. Allen i. 282, 283, 284, 306, 859 V. Brooks i. 652 v. Custance i. 809, ii. 696 V. Jones i. 489, ii. 104 Y. Payne ii. 692 V. Wood i, 219, 239, 241 TABLE OE" CASES CITED. xei Hokeby Peerage Case 1. 263 Bolf V. Dart ii. 354 Holt V. Watson i. 696 ■Roos Peerage Case: i. 259 Eose V. Bakemore ii. 950 V. Bryant i. 364, 368, 369 Eoscommon Peerage Case.i. 256, 265, ii. 213, 215 Bobs v. Hunter i. 816 Eoucli V. Great Western Railway Co. i. 204,422 Eoulston V. Clarke 1. 861 Bounds V. Tliomas i. 426 Eouse V. Bardin i. 626 V. Redwood i. 427, 451 Eowe V. Brenton i. 335. 346, 595, 646, 755. ii. 263, 269, 278, 293 V. GrenfeU i. 622, 646 V. Hasland i. 640 V. Howden ii. 327 V. Parker i. 754 Rowland v. Ashby ii. 247 Bowntree v. Jacob i. 471, ii. 652; Eucker v. Palsgrave i. 787 Eudd's Case i. 107 V. Wriglat i. 228, 343 Ending v. Newell i. 753 V. Smith ii. 447 Rugby Charity.(Trust6e8) v. Merryweather.i. 650 Rumney v. Beale i. 469 Eandle v. Beaumont ii. 289, 324 Bush V. Peaoock i. 527, ii. 524 V. Smith ii. 896, 899 Eushton's Case i. 10, 19 Bushwortk v. Craven ii. 289 V. Pembroke{CounteBB).i.450, ii. 15, 215 T. Wilson ii. 828 Bussell'a Case i. 266, 704 V. Dickson i. 623, ii. 363 (Lord), Case of (See R. v. Russell) i. 136, 207 V. Bider i. 54, ii. 905 Rust V. Baker i. 640 Eustell V. Macquister . . . > i. 772 Ryder v. Malbon i. 261, 876 Eyle V. Haggie i. 188 er V. Cook i. 809 Sacheverell v. Saoheverell i. 449 Sadler v. Robins ii. 66, 205 Sage v. Robinson i. 70, 73 St. George v. St. Margaret i. 824 Paul (Warden) v. Morris ii. 15 Sainsbury v. Matthews i. 879; 882 Saloucci V. Woodmas ii. 175 Salucci V. Johnson ii. 175 Salte V. Thomas i. 343, ii. 289, 444 Salter v. Turner ii. 381 Sampson v. Yardley i. 212 Samuel v. Evans; ii. 341 Sandersoa v. Collman i. 468, 469 V. Jackson ii. 744 V. Laforest i. 202, 489 •Bandford v. Eaikes ii. 739 V. Remington i. 134 Bands v. Ledger i. 861 er V. Mazarredo i. 496 Sarum (Earl) v. Spenoer ii. 219 Saunders v. Meredith • i. 368 v. Pittman it. 859 V. Wakefield ii. 760 Saunderson v. Judge L 644 Savage v. Smith 1. 835 Sawyer v. Birohmore i. 166 Sayer's Case i. 110 V. Garnett i. 74 V. Glossop i. 631, ii. 447 V. Kitchen ii. 537 Sohinotti v. Bumstead ii. 312 Scholes V. Chadwick j. 334, 528 V, Hilron ii. 833 Scholey v. Walsby i. 474 Walton 1. 602 Schooling V. Lee i. 489 Schutes V. Hodgson ii. 929 Scott V. Allgood ii. 34 V. Clare i. 426, 452, 582 V Crawford i. 46fl V. Jones i. 580, ii. 539 V. Lewis il 382 V. Marshall i. 622 V. Shearman ii. 99 Scrimpshire v. Scrimpshire i. 631, ii. 180 Searle v. Barrington (Lord).i. 344, 364, 367, 368 Seaton v. Benedict i. 787 Seddon v. Tutop ii. 21 Sedgwick v. Watkins L 77 Sedgworth v. Overend i. 8i53 Selby V. Harris ii. 379 Sells V. Hoare i. 19 Selway v. Chappel i. 99 Selwood V. Mildmay ii. 643, 735, 780 Selwyn's Case i. 641 Senior v. Armitage ii. 791 Sequier v. Hunt A. 845, 851 Sergeson v. Sealey ii. 265, 266 Settle Mill Case i. 235 Severn v. Olive: ii. 828 Sewell V. Champion i. 54, 64 V. Corp ii. 303 V. Evans ii. 508 V. Stubbs i. 422 Shaftesbury (Lord) v. Djgby (Lord) i 16 Sharp V. Newsholme i. 203 Sharpe v. Lamb i. 604, 506 T. Sooging ii. 955 Shaw V. Broom i. 530 V. Holmes ii. 324, 336 V. Markham ii. 544 V. Picton i. 469 V. Wilson ii. 709 Shearwood v. Hay i. 791 Sheldon v. Whitaker i. 861 Shelley v. Wright i. 471, 473 Shelling v. Farmer ii. 312, 651 Sheltou V. Livius ii. 678 Shepherd v. Chewter i, 478 V. Shorthouse ii. 444, 450 Sheppard y. Gosnold ii. 800 Sheridan's Case (See B. v. Sheridan). Sheriff v. Cadell i. 646 Sherman v. Sherman.* i. 446 Shilcock V. Passman i. 816 Shipwith V. Shirley i. 341 Shore v. Bedford i. 153 V. Wilson. . .i. 626, ii. 633, 709, 711, 767 Short V. Edwards i. 803 . xcu TABLE OP CASES CITED. Short V. Lee i. 219, 301, 305, 306, 336, 33T, 338, 3S9, 344, 346, 594, ii. 2^0, 295 V. Story i. 445 Shortrede v. Cheek ii. lii Shott V. StreateSeld i. 173 Shrewsbury v. Blount i. 38, 186, 363 (Mercers) v. Hart ii. 442 Shumack v. Lock i. 508, 511 Shuttleworth v. Bravo i. 75 Sidaway v. Hay ii. 205 Sideways v. Dyson ii. 538, 966 Sidford v. Chambers , i. 468 Sikes V. Marshall i. 370 Sillick V. Booth i. 640, 641 Sills V. Brown i. 784, iL 232, 800 Simpson v. Dismore ii. 508 V. Margitson ii. 710, 747 V. Pickering ii. 10 V. Smith ii. 899 V. Thornton i. 581 Sims V. Kitchen ii. 527 V. Thomas ii. 193 Sinclair v. Baggaley i. 369, 644 V. Fraaer ii. 181 V. Sinclair i. 41, 485, ii. 180 V. Stepheiison ii. 523, 524, 917 Singleton v. Barrett i. 590, 807 Skaife v. Jackson i. 474 Skilbeok y. Garrett i. 645 Skinner v. Bellamont (Lord) i. 229 Skipwith V. Shirley ii. 574 Skipworth v. Green i. 472 Slack V. Buclianan i. 431 Slane Peerage Case i. 243, 255, 259, 279, ii. 265, 354 Slaney v. "Wade i. 257, 269, 280, 472 Slater v. Hodgson ii. 443 V. Lawson i. 502 Slatterie v. Pooloy i. 422, 423, 425 Slegg V. Phillips i. 74 Sloman v. Heme i. 155, 489 Sloper V. Allen i. 859 Small V. Attwood ii. 688 SmaUcombe v. Bruges i. 202, 489 Smalt V. Whitmill ii. 819 Smart v. Prujean ii. 743 V. "Williams i. 336 V. "Wolff u. 174 Smartle v. "Williams i. 353, 370 Smethurst v. Taylor i. 520, 800 Smith's Case i. 534, 566, 572 V. Battens i. 368, 369, 644 V. Beadnell i. 432 V. Bird i. 503, 507 V. Buchanan ii. 205 V. Chester i. 468 V. Cramer '.i. 204, 205 T. Davies i. 816, ii. 312 V. De "Wruitz i. 531 V. Doe d. Jersey (Earl) ii. 751, 760 V. East India Company i. 164 V. Fell i. 146 V. Groom i. 75 V. Henderson ii. 509 V. JeHVyes j-.ii. 681, 747, 787, 798 V. Knowelden i. 885 V. Lyon i. 72, 486 V. Martin i. 796, 820 V. Mu-xwell ii. 447 V. Moroer i. 468 Smithy. Moon i. 444 y. Morgan i. 491, 527, ii. 928 y. Nicolls ii. 181, 193 V. Prager -. i. 66 y. Royston ii. 32 V. Eummens ii. 50, 59 y. Saiusbury ii. 596, 624 y. Sleep i. 7, ii. 524 y. Smith i. 521 V. Taylor i. 435, 469 y. Truscott ii. 829 V. Veale ii. 219 y. "Whittingham i. 304, 528 V. "Wilkius i. 749 |y. "Wikon ii. 709, 710, 790, 796 V. "Winter ii. 329 y. Young 1. 411, 420, 587, ii. 527 SneUgroye y. Steyens ii. 817 Snow y. Phillips i. 479 Snowball y. Goodricke i. 488, 521 Snowden y. Thomas i. 785 Solita V. Yarrow ii. 615 Solly y. Hinde ii. 691 Solomon y. Turner i. 465 Somerset (Duke) y. Prance i. 237, 753, 755 Soper y. Dible i. 612 Sotiliohos y. Kemp ii. 799 Southampton (Mayor) y. Grayes ii. 315 Souoh d. "Ward v. "Wellingale ii. 444 Southey y. Nash ' ii. 885 Sovvard y. Leggett i. 810, 815 Sowerby v. Butcher ii. 681 Spadwell v. i. 252, 276 Spargo y. Brown i. 212, 304, 480, 486 Sparke v. Middletou i. 166 Sparrow y. Farrant ii. 619 Speck V. Phillips i. 792 Spence y. Stuart ii. 821 Speuoeley y. De Willot i. 748, ii. 900 y. Sohulenberg i. 159 Spencer v. Billing i. 595 y. Harrison i. 51, 55 Spioer v. Cooper ii. 790 Spieres v. Parker i. 821 Spiers y. Morris i. 336 Spooner y. Payne ii. 493 Spybey v. Hide i. 830 Stacey v. Blake i. 525, 793 Stafford (Lord), Case of ii. 953, 972 y. Clark ii. 24 (Marquis) v. Coyney i. 650 Peerage Case i. 256, 271, 275 (Mayor) y. Till i. 467" Stainer y. Droitwioh (Burgesses of) ii. 298 Stammers y. Dixon ii. 802 Standage y. Creightou i. 524 Standen v. Standou i. 273, ii. 643, 737 Stanley y. "White i. 444 Stanwix (Gen.) Case of i. 641 Stapleton v. Nowell i. 189 Stapylton v. Stapylton i. 250, 255 Stead y. Dawbor ii. ego y. Heaton i. 339, 344 Steadraan v. Arden ii. 328 Steam y. Mills .'.'.A. 478 Steavenson y. Oliyer i. 594 Stedman v. Goooh '.'.".'.ii. 399 Steel y. Prickett " .i.219" 648 Stoinkeller y. Newton ii. 2r2, 218, 25l| 857 Stephen v. Gwenup i 304 TABLE OF CASES CITED. XCIU Stephen v. Pell i. 18G, 793 Stephens v. Crioliton ii. 851 Stevens v. Berwick on Tweed i. 787, ii. 316 V. Piiiney i. 578 Stevenson v. Jones! ii. 935 StUl V. Halford ii. 379, 413 V. Hoste ii. 780 Stobart v. Dryden i. 285, 286, 338, ii. 975 Stock V. Booth i. 652 Stockdale v. Hansard i. 620 Stocken v. Collin ii. 294 Stockfleet v. Do Tastet i. 432 Stoddart v. Palmer i. 837, 862 Stokes V. Mason i. 622 Stonard v. Duiikin i. 469 Stone V. Ball ii. 660 V. Blackburn i. 99 V. Forsyth ii. 75, 449 Stones V. Byion i. 166 Storaee v. Longman i. 626 Stork V. Denew ii. 209 Storer v. Hunter i. 704 Storr V. Scott .' . .i. 451 Stothert v. James i. 530 StovelJ V. Brewin i. 788 Stowell V. Robinson ii. 678, 679, 680 Straker v. Graham i. 168 Stranger v. Searle ii. 596, 609 Stratford's Case iL 102 Straton v. Rastall .i. 474 Street v. Brown ii. 326 Streeter v. Bartlett ii. 485 Strickland v. Ward ii. 104 Strode v. Russell ii. 768 V. Winchester i. 304 Strong V. Dickenson ii, 821 V. Rule i. 845 Strother v. Barr i. 575, 578 V. Hutchinson ii. 999 V. Willau ii. 287, 303 Strowd V. Willis i. 467 Strutt V. Bovingdon i. 400, ii. 17, 217 Stuart V. Greenhall il 293 V. Lovell i. 760, 772 Stubbs V. Sargon ii. 739 Studdy V. Sanders i. 157, 470, ii. 381 Stump V. Ayliffe ii. 269 Sturge V. Buchanan i. 413, 414, ii. 531, 573 Suffolk Witches, Case of i. 534 Summers v. Moseley ii. 896 Summerset v. Adamson i. 452 Sussex (Karl) v. Temple i. 470, 627, 528 Peerage Case.i. 255, 273, 289, 301, 304, 306, 348, 363, 623, ii. 4C8 Suster V. Cowell ii. 323 Sutherland v. M'Laughlin i. 37 Sutton v. Buck L 646 Swain V. Lewis ii. 544 Swallow V. Beaumont i. 861 Swan and Jeffrys, Case of. i. 831 Sweet V. Lee ii. 709, 786 Swift V. Swift ii. 929 Swinnerton v. Stafford (Marq.) i. 6, ii. 441 Swire v. Bell ii. 492 Sybray v. White i. 517 Sydenham v. Rand ii. 820 Syers v. Jones ii. 790 Syllivan v. Stradling i. 467 Sykes v. Dunbar i. 166 Bymmona v. Blake i. 772 Talbot V. Hodson i. 643, ii. 504 V. Lewis i. 231, 243 V. Villeboys .ii. 312 Tallock V. Dunn i. 502 Tanner v. Taylor ii. 917 Taplin V. Atty ii. 523 Tapp V. Lee i. 633 Tarleton v. Tarleton ii. 182, 207 Taverner v. Little i. 794 Taylor v. Barclay i. 619, 620 V. Blacklow i. 148, 153 V. Briggs ii. 789 V. Clemson ii. 103 v. Cole i 258, 479 v. Croker i. 468 V. Devey i. 234, 235, ii. 291 v. Diplock i. 641 V. Foster i. 135, 524 V. Fox i. 310 V. Hooman i. 859 v. Horde i. 643 V. Jones ii. 580 V. Kiuloch i. 489, 644 V. Needham i. 467 v. Parry i. 756, ii. 272 T. Roy. Exch. Ass. Co ii. 851 V. WiUans i. 171, 524, ii. 1013 Taynton v. Hannay. . . ; i. 527 Teed v. Elworthy i. 852 v. Martin ii. 285 Tellard v. Shebbeare i. 232 Tempany v. Bernard i. 861 Temperley v. Seott i. 414, ii. 383 Tempest v. Kilner i. 841 Tennant v. Hamilton i. 750, 757, ii. 901 Terry v. Huntington ii. 101 Tewkesbury (Bailiffs, &c.) v. Bricknell . . .i. 859, ii. 800 Thanet (Earl) v. Poster ii. 265 V. Patterson ii. 380 Thatcher v. Walker ii. 239 Thelluson v. Cosling iL 276 Thody's Case i. 65 Thomas v. Ansley i. 581, ii. 362 . V. Connell i. 203, 205 V. David ii. 887, 947, 971 V. Dunn ii. 330 v. Foyle i. 646, ii. 285 V. Jenkins i. 219, 229 V. Kettericke ii. 85 V. Magan i. 431 V. Newton ii. 935 d. Jones v. Thomas i. 443 V. Thomas ii. 717 V. White i. 471 Thompson (or Thomson) v. Austen, .i. 406, 420, 430 V. Blackhurst ii. 137 V. Bridges i. 489 V. Davenport i. 451 V. Donaldson ii. 93 V. Jackson i. 787, 792 V. Moseley i. 152, 750 V. Trevanion i. 184 Thome v. Rolffe i. 640 Thornton's Case i. 660 V. Jones i. 861 V. Lyster i. 856 XCIV TABLE OF OASES CITED. Thornton v. Place ii. 2T Thorpe v. Barber i. 50 T. Cooper ii 21 T. Gisbui-ne ii. 601, 829 v. Roy. Exph. Ass. Co i. 119 Threlfall v. Webster ii. 323 Thresh v. Kake ii. 680 Throgmorton, Case of— (See E. v. Tlirog- morton). V. Walton i. 6,40 Thnrbane's Case i. 466 Thurle v. Madison ii. 580 Thurston v. Slatford ii. 997 Thwaites v. Eiohardson i. 498 Tichel V. Short ^. i 445 Tiokle V. Brown i. 334, 528 Tinokler'a Case i. 288 Tindal v. Whitrow i. 62'7 Tinkler r. Walpole iL 285 Tinn v. Billingsley i. 504 Tinney v. Tinney ii. 644 Title V. Grevet L 130, ii. 929 Todd V. Winclielsea i. 380 Tomkins v. Ashby ii. 68 V. Attorney General ii. 289 Toag's Case .i. 106, 564 Tooke, Home, Case of^See R. v. Tooke) Tooker v. Beaufort (Duke). . .i. 624, ii. 26T, 346 Tooaey v. Williams i. 645, ii. 572 Topham v. Braddick i. 675 T. M'Gregor i. 595, ii. 928 Toulmin v. Price i. 596 Tovey v. Lindsay ii. 180 Towle's Case i. 831 Townley's Case i. 889 Townsend v. Downing i. 74 (Marq.) v. Norwich (Bp.) i. 674 T. Champernown.- L 674 Townshend Peerage Case i. 268 Townson v. Jackson i. 850 Tracy Peerage Case i. 256, 265, 780, il 629. Travis v. Chaloner i. 237, 528, ii. 13, 34 v. Collins ii. 326, 328, 331, 336 v. Oxter ii. 271 Treganey v. Fletcher i. 622 Trelawney v. Coleman i. 92, 181, 644 Tremaine v. Faith ii. 828 Trerivajn v. Lawrence ii. 41, 166 Trewhilt v. Lambert i. 579, 590, ii. 578 Trimleston (Lord) v. Kemmis . .t 311, 333, 421 Trist V. Johnson ii. 527 Trotter v. Blake ii. 60 V. Harris i. 646 Trowell v. Castle i. 643, ii. 379 Trowter's Case — (See R. v. Trowter) Trueman's Case i. 452, 542 Trnslove v. Burton i. 524 Tuck V. Tuck ii. 26 Tucker v. Barmw i. 433 V. Cracklin i. 845, 857 T. Inman i. 623 T. Wilkins ii. 292, 448 Tufton V. Whitmore ii. 218, 251 Turley v. Thomas i. 621 Turner's Case i. 541, 564 v. Crisp i. 364 V. Gothiu ii. 316 V. Hardey i. 839 V. Harvey ii. 688 V. Pearte i. 71, 99 Turner v. Eaaton i. 159, 427, 431 V. Turner i. 633 Turquand v. Knight i. 139, 142, 145 Turton v. Benson 1. 427 Twemlow v. Oswin i. 642 Twizell V. Allen ii. 321, 327 Tyler v. Bland i. 830 Tyrwhitt v. Wynne i 756, ii. 1012 U. Udall v. Walton L T5 Uhde V. Walters , ii. 6G4 Underhill v. Durham ii. 269, 271, 414 -V. Witts i. 581 Underwood v. Courtown (Ld.) i. 427 Upton V. Curtis i. 69 Utterton v. Robins ii. 468 T. Tacher v. Cocks i. 170, 202, ii. 489 Vaillant v. Dodemead i. 135, 136, 1.^7 Vain V. Whittington i. 504, 506 Taise v. Delaval i. 168 Valentia (Lord), Case of. 1. 260 Vallance v. Dewar iL 788 Van Omeron v. Dowick i. 645 Sandau v. Turner i. 623, 794 Wort V. Wolley i. 525 Vane (Lord), Case of .i. 95, ii. 997 Varioas v. French ii. 855 Vaughan v. Barnes i. 793 V. Fitzgerald ii. 219 T. Martin ii. 928 v. WorraH i. 99 Vaughton v. Brice ii. 833 Vaux Peerage Case i. 256, 263, 265, 266 Veitch V. Russell i. 465 Veuafra v. Johnson ii. 237, 248 Verry v. Watkins i. 760, ii. 961 Vicary's Case i. 449, 492 Vice V. Anson (Lady) ii. 531 Villers v. Beaumont .ii. 655 Villiers v. VilMers ii. 572 Vincent v. Cole i. 675, 579 V. Prater i. 172 Viney v. Barrs i. 760 Vooght V. Winch i. 660, ii. 36, 42 Vowlea V. Miller i. 648 V. Young. i, 77, 248, 260, 265, 270, 272, 276 VuUiamy v. Huskinson i. 251 258 W. Waddington v. Cousins ii. gig Wade V. Beasley '_;. 802 V. Broughton ; '.'.Vii! 631 V. Simeon j. 71 Wadley v. Bayliss V.".".ii! 802 Wadsworth v. Hamshaw .'.'..(. 142 Wagstaff V. Wilson !!!!!! !i.' S24 Wain v. Bailey !! ! !! !i* 696 w •. ^- '^fi's™ V.V.'.Vii. eVei 760 Waite V. Gale ;; ^gQ Waithman v. Weaver ". i' pjg^ Wakefield's Case i'.'u^ \i 319 TABLE OF CASES CITHa XCV Wakeman v. West i. 282 Waldridge v. KeBnison i. 430, 431 Waldron v. Coombe ii. 303 V. Ward i. 135 Walford v. Fleetwood i. 622 Walker's Case—: See R. v. Walker) 1. 18 Y. Beauobamp (Countess). i. 245, ii. 447 T. Broadstock i. 333, 527 V. Burnell i. 435 V. Giles i. Vl V. Holman i. 331 V. Bawson i. 788 V. WUdman i. 135, 142 V. Wingfield i. 270, ii. 283 v. Witter ii 136, 182 Wallace v. Cook ii. 288 v. Eelsall i. 474 V. Small i. 431 Waller v. Horsfall ii. 571 Wallis's Case i. 831 V. Delanoy ii. 493 Walpole T. Alexander ii. 821 Walstead v. Levy i. 484 Walter v. Gunner i. 652 V. Haynes i. 645 Walters v. Pflel ii. 449 V. Bees ii. 821 Walton V. Green i. 187 T.Shelley i. 119 Wandlass v. Cawthorn i. 104 Ward V. EUayu ii. 136 V. Garnons i. 355 T. Haydon i. 48, 50 I V. Mann i. 51, 64 V. Pearson i. 882, 883 T. Pomfret i. 338 V. Wells ii. 251, 493 y. Wilkinson ii. 6 Wardeil v. Fermore ii. 493, 497 Wargent v. HoUings ii. 559 Warmsley v. Child .i. 596 Warren v. Anderson ii. 508 V. Greenville i. 339, 344, 357 T. Stagg ii. 680 T. Warren i. 645 W&rrender v. Warrender ii. 180 Warfiner v. Giles ii. 295 W-arwickslrall's Case — (See B. v.Wai wick- Waterman V. Soper i. 648 Watkins v. Morgan i. 886 T. Towers i. 791 Watson's Case— (See E. y. Watson). i. 110, 163, 205, 207, 590 T. Severn ii, 934 V. Clark i. 629 ■V. King i. 623, 578, 640, 642 V. Moore i. 417 V. Threlkeld i. 465 V. Waee i. 464 Watts V. Lawson i. 431 V. Lyons ii. 901 V. Thorpe i. 489 Waugh T. Bussell i. 861 Wayman v. Hilliard i. 431 We'all V. King i. 850 Weaver v. Prentice ii. 303 Webb V. Pox i. 649 v. Page ii. 829 V. Plummer , ii. 791 Webb V. Smith i. 139, 495 V. Taylor ii. 821 Webber V. Budd , i. 49, ii. 165 Wedrington, (Dr.), Case of ii. 102 Weeks v. Sparke i. 217, 219, 228, 229, 234, 240, 242, 244, 270 Weld V. Hornby ii. 801 Welleker v. te Pelletier i. 799 Wells V. Fisher i. 82 V. Jesus College i. 233 T. Maccarmiok ii. 103 V. Williams i. 619 Welsh's Case ii. 219 v. Nash ii. 104 V. Richards ii. 308 V. Seabone i. 703 Welstead v. Levy i. 531 West's Case i. 108, ii. 314, 936, 943 v. Andrews i. 869 V. Blakeway ii. 692 Westlake v. CoUard i. iSl Westmoreland v. Hugglns ii. 855 Weston V. Emes ii. 664 V. Taughtou ii. 270 Wey V. Talley i. 623 Wharara v. Eutledge ii. 53*7 Wharton Peerage Case ii. 273, 380 Whateley v. Menheim ii. '6 Wheatley v. Williams i. 157 Wheeler v. Atkins i. 412 V. Lowth ii. 380 v. Senior i. 76 Wheeling's Case i. 532, 542 Whilbourne v. Pettifer ii. 326 Whitoomb v. Whiting i. 491, 501 White V. Cuyler i. 92 V. Driver i. 640 V. Hill i. 55, 64, 648 V. Lisle i. 219, 229, 244, 310 V. Wilson i. 640, 845, ii. 665 .Whitehead v. Scott i. 171, 580, ii. 540 v. Tattersall ii. 103 Whitehouse's Case — (See B. v. Whitehouse) i. 94 Whitelock v. Baker i. 245, 249, 270 V. Musgrove ii. 5Ci7 Whitfield V. Allan ii. 928 Whitford v. Tuting ii. 534 Whitmore v. Wilks i. 41 Whitnash v. George i. 307, 526 Whittaker v. Edmunds .- i. 820 Whittingham v. Bloxham ii. 915 Whittuck V. Waters i. 263, ii. 281, 283 Whitwell V, Bennet i. 845 Whitwill V. Scheer i. 879, 882 Whj-te V. Eose i. 623 Wickes V. Clutterbuck ii. 104 Wihen v. Law i. 253, ii. 280 WUd's Case i. 109, 558 , (And see E. v. Wild.) Wild V. Williams i. 485 Wildman v. Glossop i. 845 Wilkins v. Jadis , i. 457, 704 V. Wingate '. i. 467 Wilkinson v. Lutwidge i. 469 v. Payne i. 631 WiUaume v. Gorges i. 703 Williams v. Bartholomew i. 468 V. Bridges i. 489 v. Bryant I 466 XCVl TABLE OP CASES CITED. "Williams v. Callender i. 761 T. East India CompaDy i. 573, 815 V. Goodohild i. 230 V. Graves i. 335 T. Innes i. 517 V. Johnson i. 86 V. Jones ii. 679 V. Bagot (Lord) ii. 136 V. Mudie i. 140, 142 V. Muanings ii. 552 V. Sills i. 794 V. Stevens i. 75 V. Taylor i. 389 V. "Wiloox ii. 1012 V. WUliams i. 479, 621, 627 T. Younghusband ii. 667 ■Williamson v. Allison i. 839 V. Page ii. 856 ■Willingham v. Mathews ii. 822 ■Willis's Case i. 566 V. Bernard i. 171, 181, 343 V. Jernegan i. 445 V. Peckliam ii. 828 "Willmett V. Harmer i. 631, 827 ■Willoughby v. Willoughby i. 622 ■Wilman v. "Worrall ii. 492, 498, 596 ■Wilson V. Allen i. 673 V. Bowie i. 579, ii. 578 V. Gilbert i. 857 V. Magnay i. 76 v. Hodges i. 640 V. Rastall.i. 134, 135, 136, 139, 140, 148 V. Rogers ii. 308 V. Squire ii. 710 V. Turner i. 523 Wilton V. Snook ■ i. 800 V. 'Webster i. 182, 644 "Wiltshire v. Sidford i. 648 ■Wiltzie V. Ad.imson i. 447 ■Wimbush v. Tailbois i. 793 "Winch v. "Winchester ii. 678 ■Winier v. Brett ii. 994 ■Winter v. Miles i. 619 V. Wroot i. 181 ■Withnell v. Gartham i. 231, ii. 802 ■Wollaston v. Hakewill i. 580, ii. 695 "WoUey V. Brownbill i. 229, ii. 578 "Wood V. Argyle (Duke) i. 466 V. Braddiek i. 498, 602 V. Cooper ii. 928 V. Dodson i. 61 V. Drury ii. 499 V. Harding i. 622 T. Mackinson ii. 899 V. Morewood ii. 329 V. Peyton ii. 26 V. Strickland ii. 639 V. Veal i. 334, 660 Woodbridge v. Spooner ii. 673 ■Woodcock's Case — (Soo R. v. "Woodcock) i. 95, 285, 292 V. Holds worth i. 780, ii. 458 V. "Wortbirigton ii. 326 "Woodcraft v. Kinaston ii. 386 "Woodford v. Ashley i. 861 V. "Whitely i. 596 Woodgate v. Potts i. 88, 589 "Woodham v. Edwards i. 623 Woodley v. Brown ii. 303 "Woodnorth v. Cobham (Lord), .i. 282, 337, 338 Woodward v. Cotton ii. 342 V. Larking i. 473 Woodyer v. Haddou i. 650 Woolett v. Roberts i. 479 Woolway v. Rowe i. 531 Worlioh V. Massey i. 622 Worrall v. Jones. ..(Intro. Chap, xvi) — i. 36, 47 Worsley v. Pilisker ii. 1011 Wright's Case 1558 V. Beckett ii. 982, 988 v. Court i. 211 d. Clymer v. Littler i. 286 V. Goddard i. 787, 792 V. Lainson i. 369, 644 T. Netherwood i. 641 V. Paulin i. 54 V. Pindar ii. 1008 V. Pulham iL 276 V. Sarmuda i. 642 V. Sharpe ii. 1000 V. Doed. Tatham.l 172, 401, 571, 575, ii. 11, 218, 505 Wrottesley v. Bendert i. 491 Wyutt V. Batenaan ii. 498 v. Gore i. 164 v. Hertford (Marquis) i. 474 V. Hodson L 501 V. Rochfort ii. 475 v. Wilkinson i. 74 Wych V. Meale i. 492 Wyld V. Hopkins i. 467 Wynne v. Anderson j. .i. 54 V. Tyrwhitt i. 306, 347, ii. 481 T. Tabsley v. Noble i. 521 Yate V. Willan j. 787 Yates V. Carnsew i. 412 Yeates v. Connop i. 282 V. Pim ii. 798 Yeatmain, Ex parte i. 144 Young V. Bairner i, 74 V. Brander ii. 285 V. Geiger i. 799 V. Homer ii. 617, 618 v. Lynch ii. 312 V. Smith i. 488, 490 v. Turing i. 645 V. Wright i. 523, 846 Yrissari v. Clement i, 620 Z. Zouch Peerage Case i. 256, 269, 281 TABLE OF CASES CITED IN THI FIRST AND SECOND VOLUMES OF COWEN & HILL, AND YANCOTT'S NOTES. [The letters i and ii, denote the volume.] Aaron's Case i. 522, 543 Abbe V. Goodwin ii. 61, 66, 698, 100, 701. Abbee v. Daniels ii. 608 Abbey v. Lill ii. 609 Abbot V. Mair. 1 i. 332 v. Pike ii. 644 Abdez V. Loveday i. 678, 682 Abel V. Porgue i. 501 Abithol V. Bristow i. 836 Aborn v. Bennett ii. 649 Abraham v. Coates ii. 866, 867 V. Matthews i. 666 Acherly v. Roe i. 668 Aclserly v. Parkinson ii. 160 Aekland v. Pearce ii. 545 Ackley v. Piuch ii. 404 V. Kellogg i. 4, 105, 714 Ackworth v. Kemp ii. 3H6 Adair's Adm'r v. Roger's Adm'r ii. 397 Adair v. Shaftoe i.'694 Adams v. Balch ii. 52 V. Barnes ii. 15, 38, 408 V. Betz ii. 337, 343, 347 V. Brownson i. 499, 501 V. Batts ii. 15 V. Carver i. 126 V. Ellis ii. 1004 v. Field ii. 616, 617 V. Jackson i. 218 V. Kelly i. 215, 588 V. Leland L 29, 518 V. Mattocks ii. 152 V. Otterbach ii. 788 V. Pearson ii. 20 V. Rockwell iL 803 V. Rowe ii. 188 v; Smith ii. 54 V. Spear i. 868 V. Taunton i. 609 V. Washington and Sar. R. B. Co.i. 127 V. "VVorldk-y ii. 265 V. "Wylie i 746, ii. 687 Adamson v. Noel ii. 813, 815 Addison v. Simmons i. 385 Adey v. Bridges ii. 374 Adey v. Jaoqueson ii. 455 Adkins v. Brewer i. 822, ii. 147 Aflalo V. Pourdrinier i. 30, 46, ii. 528, 540 Aggas v. Pickerell i, 679, 680 Agnew V. Bank of Gettysburgh ii. 548 Agry V. Young ii. 142, 145 Ainslee v. Wilson i. 806 Ainsworth v. Greenlee i. 570, 572, ii. 604 Aitoheson v. Cargey ii. 402, 403 Aitkin, Ex parte i. 132 Aikin v. Bedford i. 747 Alban v. Brownsall i. 651 Albee v. Ward ii.l48, 155 Albers v. Wilkinson i. 33 Albertsop's Lessee v. Robeson, .i. 252, ii. 275, 435 Alcook V. Aloock i. 77 Alden v. Gregory i. 691 V. Murdock i. 747 Alder v. Savill i. 656 V. Griner i. 857 Alderman v. French i. 745 Aldrich v. Brown i. 827 V. M'Kinney ii. 198, 338 Aldricks v. Higgins i. 482 Aldridge v. Birney i. 610, ii. 740 V. Giles ii. 66 V. Ireland i. 200 Aleberry v. Walby i. 863 Alexander v. Alexander ii. 325 V. Brown i. 439 V. Counter ii. 335, 525, 540, 541 V. Dixon il. 831 V. Gould i. 322, ii. 686 V. Harris i. 828, 847 V. Hoyt ii. 148, 154 V. Kerr i. 665 V. Mahon i. 305, 323, 330 V. Taylor ii. 4 Alexander's Ex'rs v, Mann i. 696 Alexander v. Stookey il. 13 Algernon Sidney's Case i. 766 Allaire v. Outland i. 841 V. Preston ii. 473 AUard v. Laban ii. 861, 863 AUcorn v. Rafferty ii. 862 Allegro V. Maryland Ins. Co ii. 727, 732 Allen V. Addington i. 633 V. Allen's Ex'r ii. 426 Vol, I. 6a XCTIU TABLE OF CASES CITED. Allen V. Duncan L lfi6, 193 V. Everts ii. 588 V. Gray ii. 147, 154, 368 V. Hall i. 251, ii. 10 T. Hammond ii. 699 v. Hawks ii. 673 V. Holkina L 125 V. Hudson River M. Ins. Co i. 68, 75, ii. 673, 683 V. Huff i. 218 V. Huntington . ., ii. 129 V. Irwin ii. 14 T. Jacquish ii. 693 V. Kingsbury ii. 645, 784, 785, 804 V. Luckett i. 476 V. Martin ii. 503 T. M'Mastera ii. 699 V. M'Neel i. 218 V. Portland Stage Co. . .ii. 366, 371, 378 T. Potter i. 588 V. Rhodebaugh ii. 660 T, Rostain i. 388 V. Thaxter ii. 420, 421, 424, 454 V. The State ii. 998 V. Watson ii. 406, 429, 432 ,v. Toung i. 462, 712 Allen's Lessee v. Lyons ii. 80 V. Parish.... i. 315, ii. 517, 532, 584, 588, 884 Allender v. Riston i. 404, ii. 370 AUesbrook v. Eoaoh ii. 611 Alley V. Deschamps i. 698 Allison V. Kurtz ii. 657 V. Matthieu i. 752, 773 V. Rankin ii. 28 V. Rayner i. 811 V. Rutledge ii. 672 AUport V. Meek ii. 611 All Saints v. Lovett i. 461, 582, 593, 610 Allston's Lessee v. Saunders i. 660, 701 Alshire v. Hulse ii. 370, 783, 784 AJaop V. Goodwin ii. 674 Alston V. Taylor i. 335, ii. 424 Alston's Ex'rs v. Jones' Heirs i. 126 Altham's Case ii. 750, 757 Alton V. Gilmanton i. 454 Alvord V. Baker i. 675, 676 V. Smith i. 846 Alworth V. Kemp '. . .ii. 368 American Fur Company v. U. S i. 494, 510 Amesbury v. Brown i. fi08 Araey v. Long ii. 814, 833 Amherst Academy v. Cowls i. 477 (Ld.) V. Somers (Ld) ii. 142 Ammidon v. Smith ii. 74, 96 Ammonett v. Harris i. 854, ii. 63, 575 Amory v. Fellowes ii. 872 Anandale v. Harris ii. 575 Anderson v. Bacon ii. 699 V. Bradie i. 34 V. Bullock .- ii. 455 V. Dudley , ii. 343 V. Gilbert ii. 688 V. Hawkins i. 177 T. Hutchinson ii. 698 T. Long i. 758 T. May ii. 547 T.Neff i. 33 T. Pearson ii. 692 T. Eobson ii. 516, 566 Anderson v Turner ii. 583, 585, 588 V. Van Alen i. 481 V. Young i. 104, ii. 873 Andrew v. Wrigley i. 681, ^^^ "Andrews v. Andrews ii. 830 V. Beecher i. 481 V. Chadboume i. 843 V. Cleveland i. 808 V. Dobson ii. 758, 772 V. Herring i. 482 V. Herriott ii. 186, 456 V. Hooper ii. 5)0 Lessee v. Fleming i. 319, 463 V. Montgomery ii. 187, 188, 200 ' V. Pledger i. 748 V. Smith ii. 114 V. Solomon i. 135, 137, 138 Andrus v. Harman ii. 109 Angel T. Felton .ii. 517, 566 Angus V. Smith IL 977 Ankerstein v. Clarke i. 866 Annesley v. Anglesey (Earl of).i. 131, 135, 143 V. Dixon ii. 139, 143, 161 Anonymous . . .i. 32, ii. 868, 869, 873, 950, (/57 Ansley v. Birch ii. 868 Anthoine v. Coit i. 404, 439, ii. 1001 Anthony v. Lapham i. 654 App V. Driesbach ii. 83 Appleton V. Boyd i. 321, ii. 703, 938 V. Braybrook ii. 420 Apthorpe v. Comstock i. 206, 495 Arayo v. Currell ii. 429 Arborgast v. Arborgast i. 77 Arcenau v. Jourdan ii. 674 Archer v. Sadler i. 660 V. Williamson ii. 402 Arden v. Arden , i. 684 Arderry v. Commonwealth i. 391, 395 Ardesoif V. Bennet i. 695 Arfridson v. Ladd ii. 691 Argo (The) ii. 844 Armistead's Case i. 636 Armroyd v. Williams ii. 171 Arrhstrong v. Burrows ii. 733, 734 V. Carson ii. 188, 192 V. Flora i. 4S3 V. Ganou ii. 372 V. Green i. 398 V. Harshaw .ii. 198 V. Hewitt , i. 757 V. Hussey ii. ; n V. Lear ii. '?■?, 86 V. Masten ii. 401 V. Short ii. 266 Arnold v. Bell i. 327 V. Bishop of Bath ii. 281 V. Gorr i. 739, ii. 393, 477 V. Revoult i. 866 V. Styles ii. 60, 65 V. Tourtelott ii. 198, 367 Arnott V. Redfern ii. 1S5 Arraw v. Tyrawly j. 685 Arrington v. Short ii. 266 Arthur v. Wells i. 419 Arundel v. M'CuUock ". ."ii. 143 V. AVhite ii. 389 Arwin's Lessee v. Bisling i. 390 Asberry y. Calloway ii. 664 V. Macklin j. gas Ash et al. v. Patton I 34, 442, 463 TABLE Off CASES OITKD. XCIX Askew V. Kennedy ii. 405 V. Poyas ii. 699 Aslin V. Parker ii. 42 Aspinwall v. Tousey ii. 406 Astley V. Tankerville i. 611 Aston V. Aston i. 683 Atcliison V. M'Cullooh ii. 211, 506 Atevell V. Miller ii. 528, 551 Atherton's Case ii. 930, 942 Athertou v. Brown ii. 667 V. Pye i. 611 Atkins V. Owen ii. 512 T. Sanger i. 484, 497 V. Smith -. ii. «6 Atkinson v. Carter ii. 528 V. Dailoy ii. 588 T. Hawdon ii. 517 V. Scott ii. 667, 683 Atlantic Ins. Co. v. Conard i. 488 Attleborough v. Middleborough i. 676 Attorney-General v. Bowman i. 759 V. Briant i. 163 V. Bulpit ii. 886 y. Ct. PI. Glass Co. iL 733, 801 V. Clapham ii. 711 T. Ilavison ii. 227 V. Dudley i. 694 V. Le ilerohant . .ii. 529, 816 V. Pamther i. 604 V. Ray ii. 385 V. Kicliards i. 694 T. Sibthorp ii. 753 Atwater v. Fowler i. 689 Atwood's Case i. 193, 598, 614 Atwood V. "ffelton .i. 16, ii. 900, 904, 905 V. Whittlesey ii. 673, 674 Ault V. Rawson ii. 873 Auriol V. Smith ii. 444 Austin V. Bostwiek i. 49 1 T. Craven i. 456 V. Hall i. 854 V. Meigs i, 376 V. Rodman ii. 337 V. Sawyer i. 330, ii. '666 T. Slade's Administrators ii. 211 V. Snow's Lessee iL 404 V. State ii. 294 V. Walsh i. 8.)2 V. Whitlock ii. 455 Averett v. Thompson i. 624, ii. 42S Ayerill v. Wilson i. 464 Avery v. Butters ii. 5 1 T. Chappel ii. 76, 639, 752, 755 V. Pitch ii. 121 V. Ray i. 748 Ayer v. Hutcliina ii. 674 V. Sawyer i. 343 V. Spring i. 747 Ayers v. Oerill ii. 47 V. M'Connell i. 471 v. Stewart ii. 254 Ayliffe T. Murray i. 692 Aymer v. Astor ii. 727 Aynsleo v. Ree i. 680 Aza Y. Etlinger i. 179 B. Babb 7. Clenuion. . .i. 198, 206, 327, 494, il 9^^ Babcock v. Beamen ii. 692 V. Booth i. 7» r. Thompson i. 805 Baohelder v. Merriman , ii. 219 Bacon v. Brown i. 848 V. Chesney .' . .i. 308 V. Dubarry ii. 408 V. Miller ii. 402 V. Norton ii. 674 V. Wilber ii. 402, 404, 411 V. Jones ii. 653 V. Titcomb ii. 120, 124 Badkin v. Powell ii. 152 Badlam v. Tucker ii. 651 V. Clement ii. 812, 814 V. Francis ii. 433 V. Wallace i. 701 Bagot v. Oughton '. .i. 611 V. Williams ii. 21, 22, 119 Bailey v. Adams i. 702 V. Clay i. 696 V. Clayton L 201, 332 V. Corporation of Leominster i. 69S T. Culverwell i. 609 V. Delaplaine ii. 137 V. Fairplay i. 857, ii. 11, 42 ■V. Foster iL 674 V. Herkes ii. 706 V. Jackson L 673, 678, 682 V. Johnson iL 515, 696 V. Lechmore ii. 401 V. South Car. Ins. Co iL 175 V. Taylor ii. 123, 482, 483 V. Wakeman i. 345 Bailie v. Sibbald L 702 Bailor v. Smithers i. 441 Bain v. Case ii. 289 V. Hunt iL 106 Bainbridge v. Clay ii. 146 Baines v. Higgins ii. 663 Baird v. Blaigrove .ii. 455, 694 V. Cochran L 124, iL 938 V. Eioe L 428 Baisch v. Hoff i. 378 Bakely v. Grant i. 841 Baker v. Arnold L 142, iL 976 V. Blount ii. 494, 496 V. Briggs i. 308, 501 V. Commonwealth i. 59 T. Deliesseline ii. 359 V. Dewey ii. 656 V. Field ii. 421, 427 T. Jewell L 852 V. Le Grand i. 696 T. Lovett iL 407 V. Matlack iL 673 V. Newbegin L 868 V. Page ii. 396 V. Preston iL 8, 569, 588 T. Sanderson L 121 V. SeekrigHt ii. 78S V. Stackpole L 499 V. Whiteside ii. 693 Baldwin v. Calkins i. 656, 65t V. Hale. iL 387, 420, 421 V. Hazzleton i. 870 V. Munn L 855 V. Norton i. 608 T. Prouty iL 394, 395 V. fltebbini i. 868 TAJ3LB OP CASES CITED. Baldwin v. "West ii. 873 et al. V. Hale ii. 420 Bales V. Proctor i. 683 Balfour v. Chew ii. 78, 420 Ball V. Manuin ii. 1003 V. Storie ii. 699 V. Taylor L 610, ii. 456 BaU'a Case i. 638, 740 Lessee v. Ball i. 742, ii. 61, 63 Ballard v. Dyson i. 650 V. "Walker i. 698, ii. 695 Ballenger v. Barnes i. 398, 400 Balaton v. Bensted i. 656 Ballow V. Talbot ii. 691 Bancroft v. IParker .ii. 653 Eanert's Lessee v. Day i. 249 Bangher v. Dupherne i, 98 Bango, "Receiver v. M'Intoah ii. 400 Bangs V. Snow ii. 143, 717 Bank v. Porter ii. 260 of Alexandria v. Swan ii. 548 Auburn v. Weed i. 746 Chillioothe v. Dodge i. 624, iL 428 Columbia v. Hagner L 696 V. Magruder. . .i. 102, ii. 548, 728, Commerce v. Union Bank .-.i. 469 Commonwealth v. Hopkins ii. 34 Cumberland v. Bugbee ii. 457 England v. Anderson ii. 800 Genesee v. Patchin Bank. . .ii. 273, 457 Geneva v. Hewlett ii. 548 Kfentuoky v. Haggin ii. 583, 688 V. Pursley i. 586 V. Sheir ii. 962 V. Vance's Adm'r ... .ii. 575 V. Williams i. 493 Monroe v. Culver i. 336, 361, 449 Montgomery v. Walker i. 124 N. America v. M'Call ii. 195 v. Wyooff i. 99 Niagara v. Austin ii. 812 Pennsylvania v. Hadleman .ii. 608, 614 V. M'Calmout i. 126 v.TJnionBk.N. Y. ii. 218, 850 Rochester v. Gould ii. 548 V. Gray ii. 456 S. Carolina v. Gray i. 350 V. Humphreys ii. 277 St. Albans v. Kniokerbacker. . . .ii. 869 Tennessee v. Cowan i. 361 U. S. V. Danridge i. 604, ii. 662 V. Dunn ii. 670 V. Sill ii. 516 V. Smith ii. 1009 V. White ii. 254 Utica V. Davidson ii. 548 V. HiUard ii. 316, 333, 863 V. Mersereau i. 134, 139 V. Phillips ii. 548 T. Smedes ii. 273 V. Smith ii. 728 V. Wager ii. 730 Washington v.Triplett ii. 7 '.'8 Woodstock V. Clark et al i. 201 , Prosecutions (Case of) ii. 604 Banks, ads. Hattou i. 192 V. Clegg i. 104 V. Judah i. 687, 688 Banner v. Gregg i. 61 Baptiste v. Volubran i. 192 Barber v. Barber i. 701 V. Brace. ii. 653, 668, 726, 727, 728, 793 V. Hartford Bank ii. 125 V. Root ii. 96, 179 T. Winslow ii. 158, 199, 261 Barbour v. Watts ii. 420 V. Whitlock i. 698 Barclay v. Ho^veU's Lessee, .i. 511, 512, ii. 782, 783 Barclay's Assignee v. Carson i. 852 Barden v. McKinne ii. 375 Barfleld v. Hewlett ii. 493, 496, 600, 614 Barger v. Caldwell ii. 727 V. Miller ii. 478, 584,;587 Barheydt v. Adams i. 690 Barhydt v. Talk ii. 152 Baring v. Fanning ii. 7, 125, 127 v. Keeder i. 87, 124 T. Shippen i. 24, 124, ii. 650 Barker v. Briggs i. 329 V. Clark i. 193, 651 V. HaU ii. 548 V. Keate i. 610 V. Lees ii. 406 V. M'Clure ii. 387 V. MiUer ' ii. 155, 364 V. Prentiss i. 122, ii. 669 V. Ray i. 301, 348, 351 V. Richardson i. 649 Ex parte ii. 83, 90 Barkitt t. Blanchard i. 809 Barkley v. Barkley ii. 645, 719 Barkman v. Hopkins ii. 428 Barksdale v. Brown ii. 728, 729 Barlow v. Dupuy ii. 361, 378 V. Heneage ii. 663 V. Read i. 378 V. Todd ii. 24 Barnard v. Darling ii. 693 V. Edwards i. 664, 695 Barnes, Ex parte ii. 313 V. Comack i. 78 V. Harris i. 133 V. Mawson i. 220, 225 V. Mobley i. 188 V. Trompowsky ii. 460 V. Winkler ii. 107, 119 Bx'r of Kay v. Kelly i. 419 Barnet v. Emerson i. 682 V. Gilson ii. 402 V. State ii, 813 V. White ii. 366 Barnett v. Barnett ii. 576 V. Day ii. -:n, 845 Barney v. Dewey i. 816, ii. 9 V. Keith i. 747 V. Patterson's Lessee. ii. 53, 64, 89, 109, 128, 186 Barnhurst v. Telverton ii, 14 Barnum v. Barnum i. 570, 741, ii. 606," 674 V. Shields ji. 657 Baron v. Abeel ii, 42 Barough v. White i. 328, 330,'331,' 332 Barr v. Gratz i. 259, ii, 63, 128, 478 Barret v. Copland ;, 521 Barrett v. Barrett jj, §7 698 T. Buxton ii. 674| 687 V. Deere j, (jig TABLB OF CASES CITBD. CI Baxrett v. French i. 321 V. Reed i. 218 V. Eogera i. 463, ii. 653, 127 V. Tazewell ii. 1004 V. Thorndike ii. 483, 517 V. Wright ii. 639 Barrey v. "Weekes ii. 367 Barringer v. Sneed ii. 666, 668 Barrington v. Bank of Washington ii. 483 T. O'Brien i. 683, 690 Barron v. Ballimore i. 654 V. Martin i. 679, 681 Barrow v. Bispham i. 483 V. Humphreys ii. 834 Barrows v. Lame ii. 670 Barry v. Foyles I 509, 513 T. Louisiana Ins. Co i. 178 V. Morse ii. 670 V. State ii. 250 V. Wilbonrne ii. 460 Barry's Lessee t. Rhea ii. 254, 345 Barrymore v. Jay ii. 660 Barstow v. Possett i. 852 Bartholemy v. People i. 18 Bartlett v. Delprat i. 322 V. Evarts i. 736 v. Gale il69, 70, 257 V. GiUard ii. 70 V. Knight ii. 186, 197, 198, 200 v. Pickersgill ii. 702 V. Williams ii. 651- Bartley v. Rictmeyer : i. 7 60 Barton v. Commonwealth ii. 344 V. Keith ii. 460 V. Morphea ii. 952, 957 V. Morris ii. 81 Bartow's Cases i. 770 Barwise v. Russell i. 786 Bas et al v. Steele ii. 335 Basket v. Pierce i. 686 Baspole's Case ii. 400 Bass V. Clive i. 460 V. Williams i. 682 Bassett v. Marshall i. 583 Baasler v. Niesley i. 315, ii. 996 Batohelder v. Batchelder ii. 98 V. Sanborn i. 343 Batchelor v. Honeywood ii. 600, 607 Bate V. Hill i. 180, u. 945 V. Kinsey i. 131, ii. 897 V. Lewis' Ex'rs ii. 131 'T. Russell .i. 30, 46 Bateman v. Murray i. 698 V. Willoe ii. 29 Bates V. Bagley ii. 108 V. Bower ii. 644 V. Conkling i. 35 T. Delavan ii. 65, 66, 198, 379 V. Jenkins ii. 109 v. Loomis 1. 786 V. McGuUy ii. 445 T. New Tork Ins. Co i. 481 V. Quattlebom ii. 25 V. Thompson ii. 149 v. Todd's Heirs 1. 698 Bateson v. Green i. 653 V. Hartsink ii. 897 Battey v. Button ii. 30 Batthews v. Galindo i. 82 Battin's Lessee v. Bigelow i. 640, 823 Batturs v. SeUers i. 437 Bauduo's Syndics v. Nicholson ii. 171 Bauerman v. Eadenius i. 480 Baugh V. Baugh ii. 62, 188 V. Brassfleld ii. 613 T. Ramsey ii. 698 Bavington v. Clarke ii. 80 Baxter v. Marine Ins. Co ii. 172 T. Moore ii. 211 V. New England Market Ins. Co. .ii. 174 V. Portsmouth (Earl of). . . : ii. 674 Bay V. Preazer i. 190 ,-. Law i. 748 Bayard t. Malcolm ii. 667,_ 1000 "'s Lessee v. Colefax i. 603 Bayer v. Norris ii- 500 Bayley v. Bates ii. 268 V. Beaumont ii. 814 V. Corporation oi Leominster i. 698 V. Greenleaf i. 684 T. Snelham ii. 723 BayUes v. Fettyplaoe i. 847 Baylis v. Attorney -General ii. 773 Baylor v. Smithers i. 393, 508, ii. 975, 976 V. Smither's Hehs i. 127 Bayne v. Gaylord ii. 404 Baynham v. Guy's Hospital ii. 803 Bayton v. Towles ii. 666, 672 Beach v. Abbott ii. 145 V. Catlin i. 178, 321 V. Eurman ii. 153 V.Mills i. 371, 379 V. Swift i. 89, 190 V. Wise i. 305, 332 Beachcroft v. Beachoroft ii. 723 Beake's Ex'r y. Birdsall i. 739, ii. 983 Beal Y. Barclay et al i. 201, 332 V. Finch i. 41, 44, 64 V. Thatcher i. 751, 773 Beale v. Thompson ii. 844 Beale's Ex'rs v. Commonwealth, use of Smedley ii. 470 Bealey v. Shaw i. 650, 653, 654, 657 Beall V. Beck i. 308, ii. 133 V. Nichols ii. 899, 910, 911 Beall's Lessee v. Lynn i. 667, 668, 669 BeaUe's Adm'r v. Schoal's Ex'r ii. 575 Bealley v. Barclay ii. 652 Beals V. Guernsey i. 390, 393, 402, 454, ii. 366 V. Terry ii. 787 Beaman v. Cushman i. 302, 354 Beamon v. ElUce i. 441, 516, ii. 886, 924 Bean v. Bean i. 106 7. Farnam ii. 402, 403 V. Parker ii. 369, 370 V. Quimby i. 138 V. Smith ii. 96 Bean's Ex'r v. Jenkins i. 104 Bearce v. Barstow ii. 683 Beard v. Bijeaux i. 587 V. Griggs i. 687 Beard's Ex'r v. Cowman's Ex'r i. 29 Lessee v. Talbot i. 226 BeardsaU v. Maynard i. 749 Beardsleo v. French i. 660 V. Neal i. 34 V. Foot i. 18 v. Knight ii. 456, 457 Bearlield v. Eeattie ii. 783 Cll TABLB OF CASES CITED.' Bearfield v. SteveJi! , i. SSt Beattie v. Qua i. 386 V. Robin ii. 311 V. Tubba' Adm'r ii. 1004 Beauchamp v. Cash i. 714 v. Mudd ii. 273 V. Parry i. 328, 331 Beaugenon v. Turcotte iL 108 Beaulieu v. Cardigan i. 695 Beaumont v. Boultbee I 692 V. Fell ii. 752, 762, 769 T. Field' ii. 751 T. Mountain ii. 340 Beck V. Cole 1 644 Becker v. Vrooman . ; ii. 672 Beckford v. Close i. 702 V. Wade i. 685, 686 Becklej v. Ceva i. 870 V. Munson ii. 633 Beckwith v. Benner i. 131, ii. 522 V. Marryman ii. 62 T. Union Bank i. 485 Becquet v. M'Carthy ii. 185 Beddo V. Smith ii. 922 Bedell v. Russell i. 818 Bedell's Adm'rs v. KeetUey ,.ii. 134 Bedington v. Southall '. A. 214 Bedle v. Beard i. 651 Beebe r. Bull ii. 117 V. Tinker .ii. 982 Beech v. Abbott ii. 200, 203 Beecher t. Chester i. 869 Beekman t. Bemus i. 712 v. Bigham ii. 101 T. Frost ii 661 Beekman's Ex'rs v. Beekman's Ex'rs. . .i. 671, ii. 568 Beeler's Heirs v. Bullitt's Heirs i. 814 Beerg v. Botsford i. 584, 870 V. Broome i. 36, 461, ii. 652 V. Hawley i. 320, 462 V. Piuney ii. 132 Beeson v. Hutchinson ii. 301, 645 Beissell v. ShoU i. 654 Beitz V. Fuller i. 501 Belch V, Harvey i. 679, 680 v. HoUoman ii. 27 Belden v. Davis ; . . .ii. 67, 687, 976 V, Seymour ii. 132, 656, 657 Belknap v. Belknap i. 654 V. Trimble i. 656, 657 Bell V. Allen's Adm'r i. 863 V. Ansley i. 790 V. Beeman i. 689, 690 V. CoU i. 89 V. Commonvrealth i. 603 T. Cowgell ii. 490, 506 V. Davidson i. 410, ii. 845 V. liaUbrd ii. 744 V. Howard •.....!. 693 V. Keely i. 384, 589 V. McLean i. 378, 381 V. Morrison i. 491, ii. 844 V. Morse ii. 645, 73.' V. Nimmon ii. 212 V. Norwood ii. 608, 614 V. Perkins i. 349, 350 T. Reed et al i. 823 T. Strother i. 603 Bell's Case i. 543, 767, ii. 959 Bellamy r. Clines ii. 49S Bellas V. Levan ii. 301 Bellinger v. People, .ii. 220, 236, 454, 930, 976, 978 BeUows V. Ingham ii. 198 Belote Ex'rs v. Wynne i. 491 Beltzhoover v. Blaekstook i. 132 V. Commonwealth ii. 134 Beman v. Ingroot ii- 340 Ben V. Peete i. 32, ii. 560 Ben's Guardian ii. 188 Beuaway v. Cayne ii. 85T Benbow v. Townsend ii. 701 Bend v. Susquehannah Bridge, &c. Co.. .ii. 648 Bender v. Fromberger ii. 9 V. Graham ii. 130 V. Manning i. 849 Benedict v. Lynch i. 696, 698, ii. 658 Benedict's Adm'rs v. Nichols i. 408, 432 Benham v. Cary ^ i. 736, 773 Benjamin v. Armstrong ii. 1000 v. Coventry i, 29, 34, 133 v. Garee ii. 516 V. Hathaway ii. 930, 938 V. Sinclair ii. 653 V. Smith. . .i. 484, 493, 508, 519, 521 Benn v. Borst ii. 392 Bennett v. Bureh i. 406 v.CityofN. T iL 131 Y. Clougji i. 606 V. Fuller ii. 368 v. Halsey. ii- 825 v. Hardaway ii. 1002 V. Hethingtou i. 196 T. Holmes ii. 388 V. Howard i. 743 V. Hubbard il. 666 V. Hull ii. 33 V. Robinson'sAdm'r . .ii. 460, 468, 480, 491, 500 V. Runyon ii. 480 V. Smith 1. 182 Ex parte i. 692 Bennock v. Whipple ii. 740 Benson v. BoUes i. 605 V. Brown i. 805 V. Matsdorf ii. 42 V. Rice ii. 76 V. Schneider ii. 812 V. Smith ii. 696 Bent V. Balcer j. 123 V. Wheeler i. 654, 655 Bent's Ex'r v. Graves ii. 119 Bentley v. Cooke i. 88 V. Morse ii. 31, 113 Benton v. Burgot ii. 186, 188 V. Dufty ii. 32 Bentzing v. Scott i. 871 Benzien v. Lenoir i. 686 Borgenv. Bennett...!. 653, 658, 666, 692, 693 Berger v. Collins i. 373 Berkley v. Pain? i. 822 Berks, &c. v. Ilendel ii. 337 Berkshire W. Co. v. Proctor ii. 789 Berluchaux v. Berluchaux ii. 430 Berley v. Taylor ii. ] 005 Bermon v. Woodbridge ii, 892 Bernard v. Commonwealth i. 308, 345, 785 V. Flournoy 1. 462 V. Torrance 1. 389 TABLE OJ CASBS CITHD. CDl Bernard v. Vignaud iL 81, 125, 146 Bemasconi v. Anderson i. 433 V. Argyle (Duke of) i. 841, 856 Bernham's Adm'r v. Adams i. 384 Berry v. Berry's Heirs ii. 65 V. Greenfield ii. 106 V. Waring i. 118, 202, 351, 586 Berryman v. Wise i. 592 Bertiiie v. Varian i. 688, 690, 691 Bertseh v. Lehigh Coal and Nav. Co. ii. 666, 721 Besore v. Potter ii. 650, 699, TOl Best V. Osborne ii. 521 V. Strong i. 74B, 812 Bethum v. Turner i. 652, 668 Betts V. Badger ii. 487 V. Bagley ii. 136, 144, 161, 261, 423 V. Davenport i. 818 T. Death ii. 186, 188, 198 V. Jackson ii. 554 V. Jackson, d. Brown i. 32, 316 V. Lockwood i. 764 V. Starr ii. 18, 39, 42 v. Union Batik of Maryland, .ii. 656, 657, 690 Bevan v. Waters i. 145 Bhetwind v. Marnell ii. 330 Bholen v. Cleveland i. 482 Bibb V. Picket i. 473 V. Smith ii. 68 Bibbius v. Noxou i. 869 Bickford v. Daniels ii. 661 Biokley v. Commonwealth ii. 835 Bicknell v. Gough i. 691 Bidden v. Dowse ii. 413 Biddia v. James ii. 341, 432 Biddle v. Wilkins iL 86, 89 Biddle's Leasee v. Shippen ii. 301 Biden v. Loveday i. 667 Bidlake v. Arundel i. 684 Bierne v. Brskine ii. 699 Bigelow V. Johnston. i. 572 v. Newell i. 654 V. Stearns ii. 139, 145, 147, 152, 158, 161 Bigg V. Roberts i. 683 Bigger's Adm'r v. Alderson i. 463, 665 Biggs V. Lawrence ii. 684 V. M'llvaine's Ex'r ii. 1005 Biles V. Holmes i. 8, 182 Bill V. Fourth W. Turn. Co L 746 T. Scott i. 33 Billingsly v. Knight i. 127 Bilson T. Saunders i. 699 Bingham v. Cabbot i. 191 Binney v. Merchant i. 40 V. Propri., &c. of Hull i. 315 Birbeck v. Burrows i. 404, 588, ii. 24 V. Tucker i. 497, ii. 285, 520, 522 Birch v. Alexander i. 660, 662, 701 V. Depeyster ii. 759 Bird V. Appleton ii. 175 V. Pierpont : i. 852 V. Randall • ii. 47 V. Rouse ii. 813 Birt V. Barlow ii. 279 Bishop V. Chambre i. 607 V. Cone i. 605, ii. 297 V. Ely i. 853 V. Morgan i. 866 V. Tucker i. 392, 394 Bishop of Cloyne y. Young ii. 752 of Winchester v. Fournsr i. 133 Bisling V. Graham i. 85 BisseU V. Briggs ii. 186, 198, 338 V. Drake i. 580, 850 V. Edwards ii. 189, 422 V. Irvin's Heirs ii. 614 V. Kip i. 865 V. Marshall ii. 997 Biven v. McElroy i- 422 Bixby V. Franklin Ins. Co ii. 286, 287 V. Whitney ii. 24 Black V. Braybrook ii. 386 V. Crouch ii. 938 v. Ray ii. 526 V. Shooler i. 375 Blackburn v. Scholes i. 790 V. Squib i. 676, 677 Blackeuey v. Ferguson .i. 492 Blackett v. Royal Exch. Ins. Co. . .u. 728, 731, 787 V. Wall i. 677, 682 Blackham's Case ii. 18 Blaokley v. Sheldon ii. 155, 364 Blaoklock v. Stewart ii. 174 Blackstock v. Leidy i. 104, 492 Blackwell v. Bull ii. 723 Blade v. Noland i. 639, ii. 517 Bladen's Lessee v. Cockey i. 222 Blagg V. The Phoenix Ins. Co. . . .i. 124, ii. 866 Blair v. Hunn i. 520 V. Miller i. 478 V. Seaver ii. 953 V. Valliant ii. 587 Blake v. Dougherty ii. 720 V. Poster i. 680 V. HaU ii. 386 V. Pelfield i. 133 . V. Ray ii. 526 Blake's Case ii. 693 Ex'rs V. Quash's Ex'rs i. 502, 677 Blakely v. Grant ' i. 841 Blanchard v. Goss ii. 129 V. Hilliard ii. 728, 730 V. Kenton ii. 648. 698 V. Noyea i. 675 V. Richley ii. 395, 812 Bland v. Moseley .' i. 649 V. Swafford ii. 834 Blandy v. Widmore ii. 704 Blankley v. Winstanley ii. 802 Blannerhasset v. Day i. 690 Blanque v. Peytavin ii. 172 Blanton v. Miller i. 32, ii. 518 Blasdale v. Babcook i. 816, ii. 9 Blatch V. Archer i. 615 Bleecker v. Bond iL 256, 302 Bleigh V. Wellesley ii. 564 Bleight V. M'llvoy ii. 61 Blesdoe v. Commonwealth iL 860 Blight V. Ashley i. 407, 509, 511, ii. 538 v. Fisher iL 821 Blight's Hen's v. Banks. . .L 685, ii. 72, 73, 574, 584 Leasee v. Atwell ii. 614 V. Rochester L 666 Blin V. CampbeU iL 20, 143, 159 V. Trimble iL 404 Bliss, Matter of ii. 137 V. Bail L 814 CIT TABLE OF CASES CITED. Bliss V, Branham ii. '739 v. Cutter : i. 516 V. Negua ii- 6'74 Blodget V. Jordan ii. 123, 189, 422 Blogg V. Kent ii. 325 Blood V. Harrington i. 587, 589, ii. 523, 525 Bloodgood v. Overseers of Jamaica i. 42 Bloomer v. Juhel i. 148 T. Sherman ii. 401, 403, 406 Bloss V. Kittridge ii. 1001 Blossom V. Cannon i. 666, ii. 148 Blount V. Darraoh ii. 4, 20, 74, 81 V. Starkie's Adm'r i. 675 Blow V. Mayiiard i. 321 Bloxam v. Blsee ii. 512 Bloxham v. Oldham .ii. 868 Blue y. Kibby ii. 956 Blunt's Lessee v. Smith ii. 1001 Blythe v. Sutherland i. 2'23, 224 Board of Justices, &o. v. I'ennimore i. 43 Boardman v. De Forest i. 677, 682 T. Keeler i. 378 V. Reed i. 222, 391, ii. 782, 784 Boatner v. Henderson i. 655 Bob V. The State ii. 1002 Bockenborough v. Ward's Adm'r i. 696 Bockford v. Close i. 679 Bodge V. Parsons ii. 588 Bodley v. M'Chord ii. 699 Bogardus v. Clark ii. 74, 79 T. Trinity Church ii. 273 Bogart V. Brown ii. 530, 532, 816 Bogert v.Bogert i. 131, ii. 907 V. Cauman ii. 665 V. Moss i. 810 Bohannas v. Lewis ii. 456, 457 Bohun T. Taylor i. 49 Boles T. M'Allister ii. 667 Bold T. Eayner ii. 728,. 787 Boldron v. Widdows i. 749 Bolin V. MUliden ii. 219 BoUing V. Boiling i. 699 V. The Mayor of Petersburgh . i. 661, 747 Bollinger v. Thurston i. 746 BoUman, Ex parte i. 567 Bolten T. Gardner i. 693 Bolton V. Corporation of Liverpool . .i. 132, 134 Boltz V. Bullman i. 176, 677 Boman v. Plunkett ii. 613 Bonafous v. Walker i. 826 Bond V. Brown i. 687 V. Dimes ii. 209 V. Haas ii. 667 T. Hopkins i. 688 V. Lathrop i. 491 V. Seawell i. 610 V. Ward ii. 9 Bond's Lessee v. Hunter ii. 865 Bone V. Hillen i. 646, ii. 861 Bonesteel v. Lyndo ii. 815 Bonnet's Lessee v. Davebaugh i. 224, 568, ii. 576 Bonney v. Ridgard i. 687, 691 V. Seely i. 806 Bennington v. Walthall i. 683 Bonser v. Curtiss i. 54 Booker V. Bell ii. 8, 128 V. Bowlos ii. 496, 503 V. Lastrappes ii. 674 Boomer v. Lano ii. 119, 369, 393 Boon V. l)yke's Legatees i. 669, ii. 511, 515 Boorman v. Johnson. ii. 132, 666, 726, 787, 793 Bootle V. Blunden ■. . .ii. 753 Booth V. Booth i. 605 V. Grove i- 868 V. Smith ii- 813 V. Warrington (Earl of) ii- 687 Borden v. Borden ii- 86, 88 V. Fitch . . - -ii. 20, 91, 95, 96, 180, 187, 188, 197, 338 Bordereau v. Montgomery .- ii- 210 Borland v. Stewart ii. 165 Borst v. Griffin ■}■ ^''^ Bosanquet y. Dashwood ii. 682 Bosley v. Farquar ii- 268 Bostick's Case ij- m Boston V- Boylston ii- 86 Hat Co- V. Messinger i- 308, 442, 462, 497, 733 and Worcester E. E. Co. v. Dana. .i. 466 Bostwick V. liewTS .i- 495 V- Hunger ii- 868 Boswell et al. v. Blackman 1. 492, ii. 958 Bosworth V. Bryan i. 578 Bothomley v. Usbome i. 131, ii. 897 Botifeurs v. Weyman i- 690 Bott V. BurneU ii- 368, 371 Boltings v. Firby ii- 123 Bottsford y. Burr Ii. 657, 695, 701 Boudereau v. Montgomery . . - .i- 222, 249, 259, 391, 392, ii. 210, 846 Boudinot v. Bradford ii. 707 Boughton, Case of i. 562 v. Boughton. ii. 663 Boulden v. Hebel i. 482 Bound V. Lathrop i. 499, 501 Bourke v. Granberry ii- 173 Bourne v. Church ii- 864 Bours V. Tuckerman ii. 821, 822 Bousfield V. Godfrey ii. 332 Boutelle v. Codwin ii. 674 Bovard v- Wallace i. 484 Bow V. Parsons i- 18 Bowditeh M- P. Ins. Co. v. Buffum ii. 999 Boyen V. Bell i. 477, 685 V. Douglass ii. 867 V. Edwards i. 681 V- Hall .., ii. 219 V. Jackson .ii. 729 V. Newbold i. 624 V. Newell ii. 428, 435, 728, 788, 800, 805 Bowerhan's Case i. 46, 543 Bower v. Smith i. 386 Bowers v. Dunn i. 378 V. Kurd I 378, ii..674 V. Jewell ii. 483 Bowes v. Heape i. 694 Bowie v. O'Neale i. 391, 398 Bowles v. Bingham i. 254 V. Johnson ii. 828 Bowlin V. Pollock , i. 388 Bowman v. Bittenbender ii. 698 v. Earl i. 182 V. Norton i. 13! , 133 V. Eusa i. 822, ii. 20, 144 V. Sanborn i. 212, 214, ii. 597, 615 Bowne v. Boston ii. 551 Boxer v. Eabeth ii. 603 BoyoB V. Foster ii. 335, 525, 666 T. Grundy ii. 699 TA3LE OF OASES OITED. cv Boyoe v. "Walton i. 500 V. Watson i. 498, 500 Boyd V. Brotherson ii. Ill V. Ladson i. 372 V. M'Lean ii. 101, '!02 et al. V. Howard i. 848 Boydell v. Drummond ii. 141 Boyden v. Moore i. 191, M9 Boyer v. Norris ii. 500, 503 Boyle V. Boyle ii. 48 V. Coleman ii. 630 V. Lysaght i. 698 V. Eowand i. 695 V. 'Wiseman ii. 937 Boylston v. Boylston i. 482 Boynton v. Kellogg i. 764 V. Eees i. 651, 656. ii. 510 V. Willard iL 115, 126, 370, 372 Brace v. Barclay i. 465 V. Benson ii. 165 Brackenbury v. Breckenbury ii. 685 Brackett v. Norton ii. 428, 434 .V. Wait ii. 660, 690 Bradbury v. Grinsell i. 658 T. White. . : ii. 698, 699, 700 Braddiek v. Thompson ii. 405 Bradford v. Boudiuot ii. 76 V. Boylston Fire and Marine Ins. Company i. 751 V. Bradford ii. 22, 42, 44 V. Bryan ii. 403 Bradford's Case i. 706 Bradish v. Schenck i. 854 Bradley v. Anderson ii. 675 V. Bentley ii. 666, 676 V. Blodffet ii. 657, 669 V. Bradley ii. 54, 674 V. Camp i. 852 V. Field i. 739 V. Goodyear i. 378 v. James i. 334 V. Ricardo i. 714, ii. 892, 984 V. Root i. 33 Bradsey v. Clyston ii. 404 Bradshaw v. Bennett ii. 460, 486 V. Bradshaw ii. 815 V. Heath it 91, 97, 180, 188, 190, 195, 198 Bradstreet v. Clarke ii. 63, 126 V. Huntington i. 314 Bradt v. Koon i. 481 Bradwin v. Harper ii. 769 Brainard v. Buck et al i. 201 Braintree v. Hingham i. 177, 253 Braman v. Howk ii. 134 Bramwell v. Lucas i. 131 Brandon v. Gowing i. 143 V. Grimke i. 646 Brandon's Case i. 495 Brandt, ex d. Walton v. Ogden i. 220 Brannan & Smith r. Forbes' Adm'rs. . . .i. 355 Brant v. Klein i. 145, 157, 496 Brarnau v. Howk ii. 109 Brashear v. Burton ii. 470 Brashier v. Gratz i. 698 Braughe v. Cradock i. 133 Braxton v. Winslow ii. 8 Braydon v. Goulman ii. 879 Brearden v. Searcy's Heirs i. 677, 678 Brearley v. Brearley ii. 640 Breckenridge v. Churchill i. 688, 691 T. Duncan ii. 639 Breokenridges v. Todd i. 605, 610, ii. 588 Breeding v. Taylor ii. 644 Breedlove v. Turner i. 811, 826, ii. 125 Brennan v. People i. 1 1 3, ii. 984 Brent's Ex'rs v. Metropolis Bank ii. 6-70 Bret V. Rigden ii. 753 Breton v. Cope i- 676 Brett V. Beales ii. 274, 298, 340 Brewer v. Palmer i. 677 Brewster v. Countryman . .i. 132, 568, 666, 696 V. Doane i. 336, 361, 414, 449 V. Hardman i. 491 v. Silence ii. 681 V. Stryker i. 452, 464, 470 Brewton's Ex'rs v. Cannon's Ex'r i. 678 Briant v. Eicke i. 871 Brice v. Smith i. 610 V. Stokes i. 700 Briokhouse v. HUnter i. 448 Bridge v. Austin i. 847 V. Eggleton i. 122, 318 V. Elliston ii. 686 T. Ford ii. 156 v. Gray i. 491, ii. 124 V. Hubbard ii. 674 V. Sumner ii. 33 V. Wellington i. 101 Bridges v. Hyatt i. 68 •S-. Mitchell i. 689, 700 Bridgett v. Coyney i. 405, ii. 155 Bridgman v. Green ii. 689 Brier v. Woodbury ii. 337 Briggs V. Dorr i. 481, 744 V. Murdock ii. 288 T. Richmond ii. 118 V. Warden ii. 148 Brigham v. Peters ii. 603 V. Rogers ii. 666 Brighton v. Walker ii. 219 Brill V. Lord ii. 865 V. Neele i. 786 Brindle v. Mcllvaine i. 321, 322, 482, ii. 952 Brintnall v. Foster ii. 33, 34, 109 Brisby v. Shaw i. 761, 827 Bristol T. Wait ii. 517 V. Warner i. 412 BristoU V. Dann 329, 330 Bristow V. Le SequevUle ii. 435 V.Wright i. 838 Brittain v. Kinnaird ii. 157, 158, 162 Brittingham v. Stevens. . .1. 440, 509, 803, 805 Britton v. Cole ii. 363 V. Turner ii. 117_, 121 V. WiUiama' Devisees ii. 407 Broadwell v. Stiles ii. 516 Brock V. Sturdivant ii. 696 V. Thompson ii. 670 Brocket v. Foscue ii. 477, 685 Brookaway v. Allen ii. 691 V. Kinney ii. 24 Brodess v. Thompson ii. 105 Brodie v. Bickley ii. 86, 88 V. St. Paul ii. 741 Brody v. Barry i 683 Broeck v. Livingston i. 653 Brogden v. Walker's Ex'r i. 607 Brogg V. Commonwealth i. 394 Bromage v. Rice ii. 611 Cvi TABLE OF CASES CITED. Bromaghin v. Thorp ii. 145 Bromster v. Dana. ii. 1010 Bronson v. Mann ii. 559 V. "Wyman i. IIS Matter of ii. 831 Brookbard v. Woodley it 611 Brooke v. Milliken ii. 150 V. Thompson ii. 548 V.White i. 846 Brooka v. Adams ii. 149, 156 Brown v. Moore ii- 812 V. Murray i. 817, ii. 863, 866, 868 V. Payson i. 131, 132 V. SaltonstaU ii- 645, 156 V. Selvryn ii- '53 V. Swan ii- 108 V. Thorndike ii. 719, 722, 738 V. Union Ins. Co ii. 172 V. Tan Deuzer ii- 379 V. Wsitera ij- 528 Ball i. 5191 V. Watts i- 823 V. V. Barrett i. 810, 877 v. Bemisa i. 864 T. Chaplin ii. 586, 588 V. Chesley ii. 821 v. Lowrie i. 848, 849 V. Maltbie . . .i. 647, 650, 656, 657, 658 T.Wilde ii- 47 T. Williams i- 806 T. Wood ii- 552, 985 T. Woodman ii. 534, 573 v. Wright ii- 352, 649 T. Wynooop ii. 62, 108 V. Marbury .' .i. 609, ii. 585^ 587 Brown's Case i. 712, ii. 362 V. Oriental Ins. Co ii. 732 Lessee v. Galloway . . . .i. 665, ii. 846 V. Powers ii. 651 Brownell v. BrowneU i- 700 V. Wheelock ii. 700 Browning v. Hanford ii. 363 V. Wilcox ii. 912 , v. Huff ii. 77, 453 Brookshire v. Brookshire ii. 813 | v. M'Manus ,. .ii- 405 Brotherson v. Hodges i. 854 v. Morris ii. 682, 685 Brotherton v. Wright ii. 392 Brownrigg v. Downing .• i. 124 Broughton v. Randall ii. 435 Broxdale v. Speed i- 690 Broussard v. Bernard ii. 63, 124 Brubaker v. Poage i- 197 V. Sudrigue ii. 762 Bruce v, Dyall i. 404, 405, ii. 367 Brown v. Abeel il 42 v. United States ii. 390 V. Adair ii. 593 Bruce's- Adm'r v. Smith ii. 587, 593 V. Anderson i. 586, ii. 504 Bruen v. Hene i. 45 1 V. Babcock i. 121 Brugin v. Charauct i. 343 V. Beebe ii. 675 Bruin, Matter of ii. 137 V. Belches i. 852 Brummell v. Prothero ii. 753 T. Bellows ii. 503, 988 Brummer v. WUkes L 126, 129 T. Best i. 654 Brumskill v. James ii. 850 V. Belts ii. 561 Brunswick v. M'Kean i. 665, 6S7 V. Brown i. 349, 655, ii. 930 Brushy. Gibbon ii. 333 V. Campbell ii. 734, 1001 v. Scribner ii. 429 V. Carter i. 701 v. Taggart ii. 377, 512 V. Cobb ii. 645 v. Wilkins ii. 433 V. Cowell ii. 883 Bruton v. Bruton ii. 47 1 V. Crowl ii. 142 Bryan v. Jackson i. 375, 376, 380 r. Cumming ii. 305 v. M'Gee ii. 88 V. Denison i. 80,j v. Wagataff ii. 228 V. Feeter i. 744 v. Watts ii. 905 v. Getohell ii. 821 Bryant v. Commonwealth Ins. Co ii. 730 v. Gibson i. 701, ii. 20, 75, 79 v. Hunters ii. 704 V. Giles ii. 880 v. Kelton ii. 416 V. Gilman i. 684, ii. 716 v. Rittenbush i. 125 V. Goodman ii. 694 Bryden v. Taylor i. 218, ii. 260 V. Goodwin . ." i. 855 Buchanan v. Curry ii. 407 T. Graoey ii. 429 v. Moore i. 223, 482 v. Hankerson ii. 402, 405 v. Rucker ii. 194, 200 V. Harrison i. 336 v. Stewart ii. 645 V. Haven ii. 698, 719, 720 v. Taylor i. 457, 482, 483 V. Howard i. 55 Buck v. Appleton i. 126 V. Ins. Co. of Penn ii. 173 v. Buck ii. 24 V. Jackson iL 729 v. Pike ii. 702 V. Kimball ii. 492, 493 Buckingham v. Banks ii. 86S, 866 V. Langley ii. 752 v. Hannah ii. 383 V. Lanman ii. 20, 78, 79 v. McLean i. 203 V. Littlefleld ii. 530 Buckinghamshire (Earl of) v. liobart . . . .i. 608 v. Lusk i. 186 Buokland v. Conway ii. 402, 407 V. Lutterloh i. 857 v. Tankard i. 128 V. Maeller i. 332, 527 Buckley v. State ii. 971 V. Marsh i. 127 Bucklin v. Thompson i. 114 V. May i. 4 Buokminster v. Perry i. 819 V M'Donald ii. 701 Buokworth's Case i. 397, ii. 521 v. Mims i. 592 Bud v. Milward ii. 868 TABLE OF CASES OITID. cvn Buddioum v. Kirk ii, 844 Budlong V. Tan Nostrand ii. 892 BueU V. Cook i. 516 V. Cross ii. 108 V. Trustees, &c ii. 165, 339 Buford V. Buford u. 181 Bugg V. Norris' Lessee ii. 60 Buhols V. Boudouskie i. 667 Bulkley v. Landon i. 328, 482, 849 V. Smitli i. 633, ii. 490 V. Stewart ii. 401, 405 Bull V. Hopkins ii. Ill V. Loveland u. 815, 838, 896 Bull's Adm'r v. Price ii. 86 BuUard v. Billings i. 326, 646 V. Briggs ii. 656, 686, 690 V. Wilson ii. 920 BuUen v. Arnold i. 98 T. Runnels i. 656, 657 BuUock V. Beach i. 441 V. Zoon ii. 511, 872 Bulstrod V. Letchmore i. 138 Bumgardner v. AUen ii. 698 Bunco V. Wolcott i. 679, 680, 687, 694 Bunch V. Hurst ii. 512, 516, 562 Bunn V. Morris i. 852 V. WiDthrop ii. 663, 721 Bunnell v. Butler ii. 958 V. Pinto. ii. 25, 401, 412 V. Taintor's Adm'r i. 847 Buqnet v. Watkins ii. 142 Burbridge v. Jakes i. 858 Burohet v. Falkes ii. 18, 118 Burohfield v. M'Cauley ii. 149, 301 Burd V, Dansdale ii. 1000 V. Seabole ii. 301 BurdeU v. Burdell ii. 251 Burdett v. Sims ii. 700 Burdiek v. Green ii. 566 Burditt V. Grew i. 689 Burgess v. Lane et al ii. 54 Burgh V. Wolf i. 682 Burghardt v. Turner ii. 587 Burghart v. Angerstein i. 263 Burhans v. Tan Zandt ii. 41, 69 Burk's Bx'rs v. Tregg's Bx'rs ii. 243 Burke v. Crosbie i. 701 V. Graiiberry ii. 4 V. Hale i. 467 T. Lynch i. 681 Burke v. Toung's Lessee ii. 1001 Burkhalter v. Edwards ii. 984 Burkholder v. M'Ferran ii. 405 Burkle v. Luce ii. 363 Burlington v. Calais i. 508 Burnand v. Nerot ii. 354, 385 Burnap v. Partridge i. 475 Burnel v. Minot ii. 408 Burnet v. Denniston i. 608 T. Lynch i. 574 Burnett v. Commonwealth ii. 106, 111, 113 V. Higgina ii. 473 Bumham v. Webster ii. 273 Burnley ads. Whitaker ii. 507 Burnley's Adm'r v. Duke ii. 86 Burns v. Burns ii. 869 Burnside v. Miskelly .ii. 124, 132 Burr V. Byers i. 386 V. Gratz ii. 479 V. Shearman iL 816 Burrell v. Nicholson U. 315 Burrill V. West ii. 4, 9 Burroughs v. Nettles ii. 674 V. Richman ii. 674, 687 Burrowes v. Locke i. 610 Burrows T. Jemino ii- '84 Bursley v. Hamilton ii. 653 Burt V. Palmer i- 513 V. Place ii. 30, 44 V. Sternburgh ii. 21, 46, 112 V. Walker ii- 496 Burtoh V. Nickerson- ii. 1004 Burton v. Anderson ii- 428 V. Dees ii- 126 V. Payne ii- 523 V. Pettibone i"-- 345 V. Scott ; ... .i. 496 V. Stewart ii. 673 Bury V. Hartman i. 482 Bush V. Bradey i- 680 V. Byvanks ii. 337 V. Sheldon ii. 78, 79 V. Western i. 656 Bush's Heire v. WiUiams i. 605 Bushell's Case ii. 142 Buster's Ex'r v. Wallace ii. 211 Butcher and Aldworth's Case ii. 386 Butler V. Butler i. 101, ii. 337, 874 V. Cornwall Iron Co ii- 895 V. Damon. . . ; i. 122, 329, 484 V. Haskell i. 694 V. Mayor of N. Y ii. 103, 405 V. Moore i- 138 V. O'Hear i. 698 V. Patterson i. 68 V. Potter ii. 130, 142 v. Suddeth ii. 670 V. The State ii. 65, 515 V. Tufts : i. 102 V. Warren i. 32 V. Wright i. 349, 350 V. Young i. 586 Butler's Case ii. 540, 945 Ex'r V. Brown i. 29 Butley V. Gale ii. 644 Butricke v. Broadhurst i. 695 Buttrick v. Allen ii. 186, 338, 419 Butts V. Blunt ii. 210 V. Francis ii. 371 V. Swartwood , .i. 16, 18 Butz V. Ihre i. 695 Buxton V. Lawton ii. 861, 868 Byers et al. v. Fowler i. 201 V. McCIenalian ii. 662 V. Tan Dusen ii. 402, 404 Byne, Ex parte. .' ii. 822 Bynum v. Bostick i. 8 Byrd v. Commonwealth i. 106 V. Ward i. 603 Byrne v. Byrne ii. 705 Byrnes v. National Ins. Co ii. 732 C. Cabarga v. Seeger ii. 597 Cabiness v. Brown i. 842 Cable T. Cooper ii. 143 Cabton v. Porter i. 701 CVIU TABLE OT OASES CITED. 1 V. Cadogan i. 600 Cady V. Shepard i. 491, 498, BOO, ii. 457 Cahm T. Dolph ii. 119 Caines v. Grant's Lessee ii. 703 Caldwell v. Benedict i. 608 V. M'Gimpsey ii. 574 V. Murphy ii. 1007 V. Stewart i. 89 Caldwells v. Harlan i. 476, ii. 368, 939 Caldft-ell's Heirs v. Wliite i. 697 Calhoun y. Ins. Co. of Pennsylvania ii. 176 Calhoun's Lessee v. Dunning ii. 11, 409 Calkins v. Lee i. 138 Oallan v. Gaylord ii. 614 Oallender v. Marsh ii. 514 Caller's Ex'r v. Baykin i. 868 Oallis V. Tolson i. 4 V. Waddy i. 702 Calloway v. Willie's Lessee i. 126 Calvert V. Fitzgerald i. 196, ii. 593, 921 V. Mower ii. 537 Calvin v. Hamilton i. 484 Cambioso's Bx'rs v. ilaffett's Assignees, .i. 384 Camden v. Cowley i. 200 Cameron v. Bell ii. 108 V. Montgomery i, 731, ii. 904 Camp V. Camp i. 609, 668 V. Mosely i. 465 V. Root ii. 401 Camphell v. Baker ii. 691 V. Beckford i. 681 V. Commonwealth i. 46 V. Day i. 485 V. Hodgson i. 675 V. Hoyt ii. 261 V. Ingraham ii. 882 V. M'Clenahan ii. 650 V. Phelps ii. 53 V. Rearden . . .■ ii. 714 V. Roberts i. 603 V. Sheldon ii. 86, 87 V. Smith i. 654 V. State. i. 5, 289, 296, 297, ii. 905, 939 V. Touspv ii. 86, 87 V. Walker i. 692 V. Wallace ii. 510, 525, 717 V. Western i. 166 V. Williamson i. 510, ii. 172, 176 V.Wilson i. 651, 659 Campbell's Lessee v. Sproat ii. 865 Canaan v, Greenwood T. Co ii. 19, 39, 74 Canal Bank v. Bank of Albany i. 469 ■ Oo. V. R. Road Co ii. 273, 429, 432 Canby v. Eidgway i. 482 Cane v. Allen i. 693 V. Cowper ii. 761 Canfield v. Maher i. 323 V. Munger ii. 30 Canning /. Pinkham i. 43 Cantey v. Piatt ii. 619 Canton v. Bentley i. 78 & Rodding's Case i. 705 Canty v. Sumter i. 32, 129 Canue v. Sagory ii. 260 Capehart v. Huey'a Adm'rs i. 34, 89 Capron v. Austin ii. 146, 147 Cardigan (Lord) Case of ii. 935 Carey v. Pitt ii. 599, 604 V. Wilcox ^ ii. 409 Carhampton v. Carhampton ii. 477 Caril v. Beekman i. 608 Carleton v. Whiteher i. 125 Carlin v. Dumartrait i. 483 Carlisle v. Perkins ii- 350 V. Trears i- 855 Carl V Butman i. 608 Carlisle's Lessee v. Longnorth ii. 472, 473 Carlyle v. Long i. 786 Carmack v. Commonwealth ii. 52 Carman v. Dunham's Adm'r i. 374 Carmichael v. Abraham i. 684 Carmichael's Case ii- 976 Carnaghon's Case ii. 948 Carnan v. Turner ii. 64 Carneal's Heirs v. Day i. 602 Games v. Field i. 457, 462, 483 Carnley v. Stanfield ii. 644, 709 Carpenter v. Groff i. 394, ii. 210 V. Jones i. 54 V. Nixon i. 23 V. Payne i 873 V. ShilweU i. 465 V. Taylor ii. 813 V.Tucker i. 676 et al. V. Whitman i. 746 Carr v. Cornell i. 375 V. Gale i. 188 Carringtou v. Bennett ii. 1002 v. Carnook ii. 210 Carroll v. Liewellen ii. 587 V. Norwood ii. 476, 505, 506 V. Peake il 542 V. State i. 558, 559 V. Tyler i. 303, ii. 587 V. Waring i. 682, 702 Carshore v. Huyck ii. 394, 444 Carson v. Blazer ii. 792 Carter v. Bellamy ii. 653 V. Bishop ii. 62 V. Buchanan i. 173 V. Carter ii. 179 V. Chaudron ii. 480 V. Commonwealth i. 742, 763 V. Connell ii. 597 V. Graves ii. 815 V. Gregory i. 179, 403 V. Hope i. S60 V. Murcott i. 701 V. Stenipson ii. 364 V. Uppingtou ii. 862 V. Whalley ii. 277 V. Wilson ii. 426, 427 Carter's Heirs v. Cutting ii, 88 Cartwright v. Godfrey ii. 68 Caruth v. Allen i. 747 Oaruther v. Eldridge ii. 480 Carverv.Jackson.i,319,473,667,ii. 574, 576, 592 V. Tracy i. 408 Gary v. Campbell ii, 512, 517 V. Hotaling i. 773 Case of the Marshalsea ii, 14S of Sargeant et al ii. II4 of Well's Will ii. 75 Case V, Berry i. 379 V. Boughton ii. 652 V. Gerrash ii. 674 V. Potter. i. 379 V. Redfleld ii, 130 V. Reeves ii. 4, 7, 10 V. Shepherd il. 148 TABLE OF CASES CITED. CIX Oaslin T. Smith ii. 189 Cassfils V. Vernon ' ii. 14, 16 Castellano v. Peillon i. 23 Caatledon v. Turner ii. 152 Castlehaven v. Underbill i. 690 Castlemain (Lord), Case of ii. 955 Caston's-Ex'rs v. Ballard i. 126 Gates V. Loftua' Heirs ii. 61 V. Woodson ii. 63, 64 Oatlicart ¥. Eobinsou ii. 699 Oatlett V. Taciflo Ina. Co. . .i. 852, ii. 286, 418, 419, 124 Catlin V. Bell ii. 684 V. Gunter i. 836, 814 V. Underhill ii. 192, 341, 421 V. Ware ii. 585, 581 V. Washburn ii. 555, 588 Cato St. Conspiracy i. Ill Caton V. Lenox L 395, 391 Cator V. Stakes ii. 361 Catt V. Howard i. 410, ii. 923 Catteris v. Cowper ^ i. 646 Caufmau v. Prea. Cong, of C. S. . .i. 224, ii. 563 Cavalier v. Collins i. 310 Cave V. Coleman . . . -. i. 848 V. Davis ii. 116, 118 Cayford's Case ii. 280 Cayme v. Watts ii. 403 Cayuga Co. Bank v. Warden ii. 142, 161 Cecil's Lessee v. Lebenstone ii. 861 Cells V. Oriol ii. 282 Center v. Patterson ii. 268 Central Bk. of Georgia v. Veazie ii. 421 Turnp. Co. v. Valentine ii. 563 Cesar v. Chew ii. 152 Chain v. Kelso i. 118 , Chairman of Mechlenburgh v. Clark . . . .i of Wash. Co. Ct. v. Harramond.i. 308 Chalmer v. Bradley i. 693 Chamberlain v. Day i. 481 V. Gorham i. 32, 145, ii. 518 V. Thompson ii. 100 Chambers v. Handley ii. 32, 863, 864 V. Hunt i. 390, 392, ii. 212, 552 V. Patton ii. 82, 116 V. Spencer i. 89 V. Waters i. 693 Champion v. Brooks ii. 999 V. Eigby i. 681 V. Torry ii. 516 V. White ii. 686, 681 Champlaia v. People ii. 221 Champlin v. Butler i. 459, ii. 641 V. Laytin ii. 699 V. Tilley . .i. 186, 403, 404 413, 146, ii. 86 Chance v. Hine i. 100, ii. 814 Chandler v. Herrick ii. Ill v. Morton i. 125, ii. 683 V. Thompson i. 649 Cljandos (Duchess of) v. Brownlow i. 688 Chanoine v. Fowler ii, 430 Chant V. Brown i. 154 Chapel V. Dann ii. 651, 669 V. White i. 81 Chapiu V. Coleman i. 499, 500, ii. 13 Chaplin v. Hartshorn i. 110 Chapman v. Allen ii. 698, 100 v. Beard i. 649 T. Chapmaji i. 259, ii. 1 Chapman v. Doe, ii. 183 V. Graves i. 49 V. Latlirop i. 696 V. Murch i. 848 V. Searle i. 456 V.Wilbur i. 621, 625 Chappel V. Avery ii. 639 V. Spencer i. 853 Char V. Keckelly i. 127 Chardon v. Calder T. Co i. 499 Charity Jackson's Case i. 551, 555 Charles v. Delpux i. 586 V. Scott i. 810 Charleston v. AUen ii.. 298 Ordinary v. Stedman i. 611 Charlotte Hall School v. Greenwell i. 249 Charlton v. Lawry i. 318 CharneUy v. Winstanley ii. 406 Chase v. Hathaway ii. 266, 449 V. Lincoln .i. 32 V. Levering i. 49 V. Manhardt ii. 699 V. Smiih i. 301, 348 Chasteen v. Ford ii. 63 Chateau v. Thompson i. 104 Chatteris v. Young ii. 106 Chave v. Parraut ii. 105 Cheasley v. Burnes . . .ii. 366 Cheetham v. Lewis i. 855 Cheeve v. Powell i. 133 Cheever v. Merrick i. 141 Cheffel V. Purday ii. 383 Chelsey v. Frost ii. 483 Cheminant v. Pearson ii. 285 Chemung Canal Bank v.Judson.ii. 116, 339, 381 Chenango (Supervisors of) v. Birdsall i. 29, ii. 1001 Cheney v. Arnold i. 589, 632, ii. 812, 928 V. Watkins. . .- ii. 583, 581 Cheney's Case ii. 688, 152, 162 Chenie v. Watson i. 569 Cherriot v. Barker ii. 198 V. Foussat ii. Ill, 195 Cherry v. Boyd i. 222 v. Holly ii. 653, 121, 193 V. Slade i. 118, 199 Chesapeake Ins. Co. v. AUegre ii. 127 Chesby v. Frost ii. 483, 517 Chess V. Chess i. 322, 394, 395, 400, ii. 210, 596, 662 Chester v. Rockingham i. 43 Chew V. Farmers' Bank of Maryland.!. 140, 148 V. Keck ii. 341, 418 Chewning v. Proctor i. Gis, ii. 515 Cheyney's Case ii. 180 Chichester v. Vass' Adm'r ii. 104 Chidley v. Lee ii. 705 Ohidsey v. Porter i. 515 Child V. Chamberlain i. 35 V. Grace i. 438 V. Wells ii. 645 Childerston v. Haramand ii. 503 Childress v. Cutter ii. 390 Chiles V. Conley's Heirs ii. 62, 63 Chilaon v. Philips i. 51 Chilton V. Wilson i. 454 Chine v. Repass i. 8 Chinu V. Russell ' ii. 268 Chinowith v. Haskell's Lessee ii. 183 Chippendale v. Masson ii. 884 ex TABLE OF CASES CITED. Chirac v. Reinicker i. 143, 157, 249, ii. 301 €hoat6 V. Burnham ii. 803, 804 Cholmond'eley v. Clinton i. 685, 686, 701 V. Oxford i. 699 Christ V. DeTobaugh ii. 650, 698 Christian v. Hoover ii. 134 V. Scott ii. 401 Christie v. Secretan ii. 173 Matter of ii. 266 Christine -et al. v. Wliitehall ii. 344, 650 'Christopher, &e. v. Elizabeth, &o i. 683 V. Sparke i. 678, 679 Christy v. Minor ii. 473 Chunn V. MoCarsou li. 652 Church V. Burgharst i. 196 V. Church i. 645, 698 V. Gillman ii. 661, 662 V. Hills ii. 657 V. Hubbart ii. 253, 346, 417, 419 V. Landers i. 603 V. Leavenworth ii. 22, 39, 4'1 V. Steel's Heirs i. 430 et al., Ex parte ii. 260, 594, et al. V. Jaques i. 419 Churchill v. Bailey : ii. 660 V. Day i. 790 V. Hunt i. 842 v. Speight's Ex'rs i. 610 V. Suter i. 5, 106, 129, ii. 674 V. Wilkins i. 846 CiUey v. Jennes i. 745 Ciplss V. Alexander's Adm'r i. 483 Cist V. Zeigler ii. 19, 21, 28, 36, 44, 116 City Bank v. Bangs i. 80, ii. 73 V. Barnard ii. 673 V. Baloman. .i. 487, 510, 513, ii. 938 v. Eoucher ii. 614 V.Smith i. 696, 697 City Council v. Hayward i. 61 V. King i. 42, 460 Claiborne y. Pariah i. 176 Clapham v. Bower i, 679 Clapp V. Cofran ii. 352 V. Wilson ii. 652 ClaremoDt v. Carleton ii. 720 Clarges v. Shervvin iL 52 Clark V. Arnold i. 319 V. Baird ii. 383 v. Beach i. 736 V. Belman ii. 375 T. Bogardus ii. 705 V. Boyd i. 483 T. Brown ii. 656 T. Capp .■ ii .'i02 V. Cleveland ii. 220 v. Dew ii. 79 T. Dibble ii. 385 V. Dutcher ii. 699 V. Eaunce i. 661, 664 V. Praemen ii. 599 T. Gifford ii. 688, 754 V. Gleason et al i. 499 V. Grant , ii. 822 V. Henry ii. 649 T. Hunt ,...i. 685 V, Lipon i. 119 V. Longworth ii. 512 V. Lowe i. 843 r. Magruder i. 348 V. Manstone i. 847 Clark V. M'Millan .ii. 645, «68 V. Montgomery i. 526, ii. 41 V. Pinney. 'i- 632 V. Pratt i- 624 v. Bay ii. 603 V. Rogers i- 482 V. Sanderson. .iL 460, 493, 494, 497, 499, 506 V. Shields i- 457 T. Sigourney i- 491 V. Todd i. 847 V. Vorce i. 390 Y. "Wallace ii. 599 T. "Webster i- 'J41 Clark's Adm'r v. Van Riemsdyk ii. 72, 73 Ex'rs V. Carrington ii. 9, 187 V.Hopkins i. 682 Lessee V. Courtnev.i. 823, ii. 460,478, 480, 500 Lessee v. Hall i. 23, ii. 181 Clarke v. Clarke i. 458 V. Cummings i. 641 V. Gaslight and Coke Co X111 V. Spencer ii. 333 V. "Waite -. i. 321, 322 Clarke's Adm'r v. Day ii. 188, 190 Clarkson v. Carter i. 696 V. Hanway ii. 689 Clason y. Morris i. 702, ii. 69 Clay V. Clapperton ii. 363 V. Johnson i. 457, 483 V. Langalow i. 501 V. Oakley ii. 548 V. Smith ii. 164 V. "WilUams i. 140 Clayton v. Anthony i. 206, 327, 494 T. Gregson ii. 726, 787 V. Per Dun ii. 149 Y. "Warden i. 589 Clealand v. Huey i. 392 Gleaton v. CharabUss ii. 4, 37, 44 Cleland v. "Waters ii. 640 Clement v. Durgin i. 218, ii. 402 Clements v. Hunt i. 250 Clerk V. Withers ii. 373 Clermont v. TuUidge ii. 611 Oleve V. Jones i . 144 Cleveland v. Rogers ii. 20, 152, 363 V. "Union Ins. Co ii. 178 Clifton V. Haig's Bx'r i. 684 CMnan v. Cooke ii. 741 Cline V. Caldwell ii. 1002 CUnton V. Hooper i, 611 Clintsman t. Northrop ii. 258 Cloberry v. Symond i. 681 Close V. Olney ii. 935 V. Stew.. Palmer il 660 V. Reil ii. 469 V. Whitney i. 29, 122 V. "Wood ii. 130, 149, 154, 162, 512 Pox's Lessee v. Palmer i. 129 Foxcroft V. Nevins i. 7 Foye V. Leighton ii. 21 2 Prance v. Lucy ii. 815, 816 Frances v. Ley i. 659 Franchot v. Leach ii. 686, 687, 694, 783 Francis v. Hazelrigg'a Ex'rs . . .i. 685, ii. 62, h7 V. Ocean Iiis. Co..ii. 175, 520, 534, 561 V. "Washburn ii. 389 Francis' Case ii. 942 Leasee v. Washburn ii. 474 Francis & Jones' Case i. 84, 135 Franklin Bank v. Cooper i. 407, 485 V. Brownson i. fj82 V. Creyon ii. 516 V. Long ii. 654, 666 V. Tallmadge i. 670 Frary v. Dakin ii. 105, 148 Praux V. Fraux i. 746, ii. 525 Prazer y. Byng ii. 706 V. Moor i. 679, 701 Frazier v. Carter i. 684 V. Cushman i. 696 V. Drayton i. 372 V. Prazier's Ex'rs ii. 62 Frean v. Cruilcshanks i. 785 Prear v. Evertson i. 30, 328, 482, 485 Frederick v. Gray ii. 882 Freejack v. Woodruff ii. 125 Freeland v. Heron ..*... i. 439, ,451 V. Howell ii. 864 Freeland's Case i. 763 Freelov» v. Pennner ii. 598, 614 Freeman v. Adams i. 855 V. Baker ii. 288 V. Blewitt ii. 366 V, Boyle i. 698 T. Cornwall ii. 130 V. Heath i. 468 V. Luckett i. 100 V. Paul i. 608 V. Spaulding 1. 68 V. Steggall i. 5(14 V. Thayer ii. 351 Freeman's Bank v. Rolliua i. 126 Preemantle v. Bankes ii. 752 Freemoult v. Dedui ii. 429 French v. Carhart i. 782, ii. 711 V. French ii. 467 V. Milliard ii. 958 V. Shotwell ii. 683 V. Sturdivant ii. 740 Frenkhouser v. Pogue i. 517 Frets V. Frets ii. 406 Preytag v. Powell ii. 301 Fridge v. The State i. 604, ii. 106 Friedlander v. London Ass. Co ii. 983 Friend (Sir J.), Case ii. 929 Frier v. Jackson ii. 1003 Frisby v. Hoffnagle ii. 674 V. M'Carty ii. 661, 662, 664 Prith V. Barker ii. 729 V. Gray i. 857 Frost V. Comirouwealth i. 541, 564 V. Everett ii. 696 V. Shepleigh i. 584, ii. 377 Proatburgh Mining Co. v. N. E. Glaas Co.ii.. 680 Pry V. Bennett i. 793, ii. 251, 385, 825 V. Slyfield i. 378, 379 T. Whittingill i. 733 Prye v. Barber i. 375 Puhrman v. Loudon ii. 586, 588 FuUer v. Crittenden ii. 652 v. Potch ii. 129, 157 V. Hampton (Town of).i. 43, 429, ii. 980 V. Holden ii. 373 V. Mattice ii. 812 V. M'Donald ii. 670 V. Prentice ii. 825 V. Roosevelt i. 802 V. Wheelock i. 32 Fullerton v. Harris ii. 155, 259, 662 Fulsom V. Mussey ii. 674 Fulthorpe v. Foster i. 681 Fulton V. Heaton ii. 137, 156 Bank v. Benedict ii. 952, 958 V. Phcenix Bank ii. 673 v. Stafford i. 739, ii. 907, 988 Funk V. Arnold i. 857 V. M'Keoun i. 685 Furman v. Peay i: 375, ii. 512 Furness v. Cope ii. 287, 289 Purniss v. Hone- ii. 728, 722 Fury v.- Smith ii. 521, 532, 562, 897 Fye V. Gregg ii. 383 Pyson V. Kemp , ii. 353 V. Kitton ii. 681 G. Gabay v. Lloyd ii. 728, 729 Gadd V. Bennett i. 864 Gage T. Currier ii. 145 Gahagan v. People i. 96, 452, 542 Gahan v. Maingay ii. 20 Gaines v. Patterson ii. 511, 513 V. Relf i. 589, ii. 192, 253 Gainsford v. Grammar i. 132, 138 Gaither v. Brooks ii. 128 y. Martin ii. 553 v. Welch ii. 64, 125 Galbraith v. Black ii. 267 v. Galbraith i. 1 02 V. Green i. 407 v. NeviUe ii. 184 Galbraith'a Leaaee y. M'Gaw ii. 107, 124 Galbrant'a Case i. 601 Galbieath y. Rife i. 733 Galbreath's Leasee v. Eichelberger ii. 940 Gale V. Lindo ii. 685 y. Kemper's Heirs ii. 261, 724 ' .er'a Ex'rs v. Roberts ii. 112, 545 Lessee y. Rogers i. 176 Gallaker's Case i. 752 Gallatian y. Cunningham. . . .i. 692, ii. 146, 156 CXXIV TABLE OF CASES CITED. Gallatin y. Bradford ii. 731 Galloway v. Hughes ii. 128 Galloway's Lessee v. Ogle i. 179 Gait V. Galloway ii. 301 -Galtra v. Wolcott ■ i. 143 Galusha v. Siiiclear ii. 586, 588 Galvvay v. Barrymore i. 707 Ganaway v. State ii. 305 Gannoa v. Anderson ii. 401 Gardenier v. Maroy ii. 301 Gardenhire v. M'Daniel ii. 588 V. Parks ii. 587, 951 Gardere v. Columbia Ins. Co ii. 399, 418 Gardiner v. Callender ii. 676 Bank v. Wheaton ii. 701 Gardner v. Astor i. 60S V. Bedford Ins. Co i. 853 V. Buokbee ii. 19, 21, 40, 45, 116 V. Campbell ii. 366 T. Collins ii, 662, 663 V. Corson i. 696 V. Gardner i. 746 V. Heyer ii. 723 V. Hosmer i. 521, ii. 372 V. Lewis ii. 428 V. Newburgh i. 654 V. Preston i. 751, 773 V. Tousey i. 498 V. Vidal ii. 613 V. "Walsh i. 853 Manufacturing Co. v. Heald. . . .ii. 666 Garland v. Goodloe i. 32, ii. 569 V. Harrison i, 188, 332 V. Rives ii. 131 Garliok v. Reece ii. 108 V. Sangster ^ ii. 367 Garlock v. Geortner i. 675, ii. 539 Garner v. Carroll ' ii. 158 V. Smith i. 173 Garner's Adm'r v. Strode iL (U, 65 Lessee v. Johnston i. 441 Garuett v. Ferrand ii. 129 V. Macon ii, 60, 66 Garr v. Selden i. 164 Garrells v. Alexander ii. 597 Garrett v. JuU ii. 692 V. Stewart ii. 656, 657, 687 Garson t. Green i, 684 Garth v. Howard i, 513 Garvey v. Fowler i. 793 Garvin v. Dawson ii. 37, 115 Garwood v. Dennis. i, 667, ii, 589, 574, 576, 584 Gaskill V. King i. 79 Gass V. Stinson ii. 513 Gates V. Gough ii. 14 V. Winslow ii. 674 Gavit's Adm'r v. Chambers i. 051 Gay V. Bowen i. 500 V. Cary ii. 806 V. Monroe Gen. Sessions ii. 10. V. Wells ii. 20 Gayetty v. Bethune i, 651 Gayle v. Turner ii. 397 Gaylord v. Gaylord ii. 402, 404 Gazaway v. Mooro ii. 606, 075 Gazely v. Price i. 696 Gearing v. The State i. 823 Gebhardt v. Shindlo i. 9, 3;; Geer v. Winds ii. 752 Gelston v. Hoyt i. 646, ii. 55, 178 Genet v. Talhnadge i- 699 GeoCfry v. Thorn i. 676 Geohegan v. Bckles h. 397 George v. Bartlett ii. 709 V. Harris ii. 667 V. Joy ii. 710, 916, 926 V. Lousley ii- 403 V. Radford ii. 880 V. Surrey ii. 598 German v. Maehin ii. 700 German's Lessee v. Gabbald i. 686, ii. 700 Germon v. Swartwout ii. 130 Geron v. TUder ii. 427 Gerrish v. Sweetzer i. 430 Y. Washburn ii. 671 Gervin v. Meredith i. 223 Gervis v. Grand Western Canal Co ii. 378 Gest V. Espy i. 126 Geter v. Martin t 372 Getman's Ex'rs v, Beardsley ii. 701 Gettman v. Ritz i. 851 Geyer v, AguUar ' ii. 172 Geyger's Lessee v. Geyger ii. 335, 816 Ghishelen v. Ferguson i. 684 Gibbes v. MitcheU ii. 868 Gibblehouse v. Mitchell. . .i. 319, 323, 324, 331 Gibbon V. Featherstonhaugh i. 675 Gibbons v. LiTingston ii. 187 V. Morse i. 665, 822 Gibbs V, Champion i. 697 Y. Cook i. 698 T. Osborn i. 607 Gibson v. Bailey i. 385 V. Chappel i. 669 V. Clark i. 651 V. Commonwealth i. 290, 291 V. Crehore i. 608 V. Culver ii. 726, 729 V. Gibson ii. 214 V. Minet iL 496, 501 V. Nicholson ii. 127 V. Peebles i. 405 V. PiersoU .' i. 251 V. Watts i. 669, 698, 699 Giddings v. Munson ii. 653 Gifford V. Gilford ,. .ii. 534 Gigner v. Bayley ii. 326 Gilbert v. Columbian Turnpike Co ii. 526 V. Gilbert i. 183 V. Sheldon ; ii. 958 Gilbreth v. Browne et al i. 593 Gilchrist v. Cunningham ii. 647 V. Mann i. 848 Giles V. Baremore i. 678 V, Powell ii. 880 Matter of ii. 266 Gilham's Case i. 554 GUI V. Cole ii. 42 V, Phillips i. 264 V. Shelley. . '. ii. 639, 714, 723 Gillespie v. Moon ii. 700 GiUespy v. Alexander ii. 706 Gillot V. Pairchild ii. 400 V. Philips ii. 400 GiUett V. People i. 165 Gilliam's Adm'r v. Perkinson . .ii. 492, 499, 500 505 Gilligham v. Tibbetts i, 485 Gilliland v. Failing '. . . .i. 471 Gilliland's Lessee v, Hannn i. 647 « TABLE OF CASES CITED. exxv Gilly V. Henry i. 848 Gilmau v. Brown i. 684 V. Houseley ii. 188 v. Tilton i. 654, 657, 658 G-ilman's Case i. 131 Grilmore v. Bowden i. 34, 35 V. Carr ii. 53 T. Holt et al i. 814 V. Morgan i. 462 V. "Wale ii. 539 Gilpins V. Consequa . . .i. 461, 733, 739, ii. 666, 845, 882 Gilston V. Marshall ii. 323 Ginn v. Commonwealth ii. 940 Girling v. Alders ii. 120 Gist V. Oattell's Heirs i. 683, 685 V. "Wilson ii. 135 Gist's Adm'r v. Cockey ii. 81 Gitting's Lessee v. Hall.i. 667, ii. 476, 583, 645 Givens v. Bradley i. 759, 763, ii. 1003 V. Calder ii. 741 V. Mans i. 32, ii. 518, 588 V. Peake ii. 28, 1 13 V. Reynolds i. 588, 589 GlanvUle v. Paine i. 607 Glasgow V. Eidgley ii. 460, 469 V. Smith ii. 475, 583, 594 Glass V. Beach i. 389 V. The Betsy ii. 177 Glassell v. Thomas ii. 698 Glasser t. Reno i. 511, 513 Glazier v. Ere ii. 364 Glenn v. Grover i. 188, 471, 644 V. Kapff i. 106, 729 V. Rogers ii. 553 V. Smith ii. 86, 87 Glenn's Ex'r y. M'Cullough i. 847 Glory V. State i. 206, 565 Glover v. Hunneivell ii. 922 Goblet V. Beeohey ii. 709, 733, 752 Goohenaur v. Good ii. 298 Goddard v. Bulow ii. 728 V. -Charles ii. 758 V. Cutta . . .• ii. 673, 674, 675 V. Gloninger ii. 256, 301 V. Pratt ii. 734 V. The State ii. 216 Godefroy v. Joy i. 812, 817, ii. 358 Godfrey, ex d. v. Hudson .i. 670 V. City of Alton i. 227 V. Codman i. 385 V. Norris ii. 490 V. Saunders i. 848 Godsall V. Baldero L 790 Godson V. Smith ii. 21 Gogel V. Jaooby i. 740 Goix v. Low ii. 175 Gold V. Bissell ii. 147, 151 V. Eddy i. 394, ii. 210 V. Hotohkiss ii. 870 V. Jones ii. 631 Goldhawk v. Duane i. 677, 678 Goldie V. Gunston i. 458 V. Shuttleworth i. 866 Goldsby's Case i. 752 Goldsmith v. Bane ii. 600, 613 Goldtliwaite v. Dent ii. 119 Golightly T. JelUcoe ii, 23, 412 Gonsales v. Deavens iL 404 Goodall v. Little i. 146 GoodaU T. Stuart ii. 368, 372 Goodenough v. Alway ii. 210 Goodhay v. Henry i. 104 Goodhue v. Bartlett ii, 630 Goodinge v. Gooding ii. 752 Goodman v. Edwards ii. 722 V. Grierson i. 681 Goodman's Adm'r v. Armistead ii. 807 Goodrich v. Downs ii. 1007 V. James i. 808 V. Jenkins ii. 186, 188 V. Knapp i. 657 V. Pendleton i. 686, 689, 702 V. Thompson ii. 20, 81 V. "Walker ii. 661, 662 Goodright ex dem. Grosvenor v. Swymmer i. 670 Goodsell V. Myers i. 748 Goodson V. Goldsmith i. 842 Goodtitle v. Chandos (Dukeof).i. 612, 666, 668 V. Saville ii. 521 v. Southern ii. 782 V. Tombs ii. 42 ex dem. Jones v. Jones i. 670 Parker v. Baldwin . . . .i. 659 Revett V. Braham i. 819, ii. 604, 607 Goodwin v. Gilbert ii. 656 T. Harrison i. 182 V. Hubbard ii. 649, 686, 702 V. Jones ii. 85, 86, 88 V. Mussey ii. 209 V. Richardson ii. 703 V. Sheldon i. 665 V. "West ii. 828 v. "White ii. 865 Goodyear v. Ogden ii. 653, 726 Gordon v. Arnold i. 372 T. Bowen i. 98 T. Browne's Ex'rs i. 868 V. Pinlay i. 692 V. Hobart ii. 585 V. Little ii. 2 10, 726, 732 V. Miller ii. 493 V. Ogden ii. 144 V. Overton ii. 588 V. Payne . . . .' ii. 493 V. Price ii. 601 V. Ryan ii. 1002 Gore V. Harris i. 144, 159 V. Summersall i. 693 Gorham V. Canton i. 198 V. Carrol ." i. 126, ii. 938 V. Gale i. 521, ii. 528, 529, 539 Gorrill v. "Whittier ii. 20, 74 Gorton V. Dyson ii. 420, 449 Goshen v. Stonington i. 593 Gosling V. Birnie i. 411, 456 Goss V, Lord Nugent ii. 666, 680 V. "Watlington i. 207 Gould V. Chase i. 457 V. Glass i. 227 V. Gould et al li. 405, 592 V. James , . .i. 43, 743 V. MoCarty ii. 332, 334, 818 V. Norfolk Lead Co ii. 905 V. "Webb ii. 199, 200 V. "Weed 1. 749 Goulding et al. v. Skinner i. 847 Goupy V. Harden ii. 670 CXXTl TABLE OF OASES CITED. G-ourdine ads. Bftfiiio's Heirs i. 218 Gouvemeur v. Elliott i. 740 T. Lynch i. 672 Gove V. Eiohardson ii. 804 G-over v. Hall i. 689 GoTernor v. Barkley i. 176, ii. 517 V. Bell ii. 255 V. Jeffries ii. 255 V. M'Affee ii. 254, 265 V. Eoberts i. 568, 570 V. Twitty i. 308, ii. 368 Governors of L. Scliool v. Scarlett ii. 802 Gower v. Sterner ii. 699, 700 Gowland v. De Faria i. 691, 694 Grace v. Mercer i. 465 Ex parte i. 692 Gracy v. Bailee i. 441 Grady v. Siiarron ii. 468 Graeme v. Harris ii. 86 Graff V. Castleman i. 692 Grafton Bank v. Kent ii. 692 T. "Woodward i. 488, 512, 734 Graham v. Allen i. 746 V. Camman ii. 1000 V. Graham ii. 1000 V. Pennsylvania Ins. Go i. 388 Grahams v. Morton ii. 861 Gram v. Seton ii. 471 Granger v. Bissell .ii. 1001 V. George ii. 378 V. Parsons ii. 148 Grangiac v. Arden i. 463 Grannis v. Branden i. 734, 759, ii. 929 Grant v. Beall i. 128, 688 V. Bell i. 688 V. Button ii. 30- V. Da Costa ,. . .i. 867 V. Jackson ii. 69 V. M'Lachlin ii. 1 86 V. Naylor ii. 672, 845 V. Thompson i. 741, ii. G74, 687 V. Tovvnaend ii. 657 V. Vaughan i. 811, 825 Grasser v. Eokart ii. 707 Grath v. Howard ii. 199 Gratz V. Gratz ii. 100 J V. Lancaster Bank ii. 20 Graves v. Boston Mar. Ins. Go. . . .i. 852, ii. 700 V. CarlLT i. 477 V. Joice ii. 42 V. Key ii. 6.-)2 V. M'Gaul i. 685 V. Merry ii. 277 Gravier's Curator v. Gullion i. 33 Gray v. Bond i. 652 V. Brown ii. 212 V. Cookson ii. 157, 158, 100 V. Karris ii. 68 V. Gardner i. 817 V. Goodrich i. 174, 212, 286 V. Gray ii. OS V. Halton ii. 802 V. liandkinson ii. 087 \-. Harrison i. 322 V. Palinors et al i. '106 V. Pentland i. 133, IGi, ii. 305, 515 V. State of Ohio i. 8 V. Swan ii. 173, 174 Gray's Ex'rs v. Kernalian . , .i. 406, ii. 539, 543 Grayblo v. Tork, Ac, Co i. 43 Grays v. Turnpike Company ii. 295 Greathead v. Bromley •"• 20 Greathouse v. Brown .ii- 1001 Greaves v. Hunter ii. 600, 611 Green v. AspinwaU i- 759, ii. 302' V. Brown .i. 390 V. CornwoU ii- 882 V. Darling i. 482, ii. 407 ,T. Fisher i- 129 V. Froud i. 666 V. Gardiner i. 696 V. Gill .--i- 588 V. Green i. 850, ii. 69, 210 V. Greenbank i- 838 V. Hart i- 68 V- Howard ii- 752 V. Judith ii. 1010 V. Lundy ii- 407 V. Merchant Ins. Co i. 602 V. Miller ii. 404 V. Ovington ii. 337, 343 V. Proude i. 666 V. Reynolds i. 696 V. SarmientD u. 187, 188, 202 V. State , i. 6, 113 V. Stephene i. 611 V. Stone ii. 361 V. Thompson ii. 44 V. Vardiman ii. 68 V. Winter i. 692 (County of,) v. Blesdoe ' ii. 212 Noel V. State of Missouri i- 289 Green's Ex'r v. .Anderson .ii. 908 E.x'x V. Jolinson i. 6S8 Heirs v. Breckenridge's Heirs. . . .i. 690 Trustees v. Robinson ii. 660 Greenleaf V. Cook ii. 674 Greenleaf's Lessee t. Birth i. 823 Greenough v. Gaskell i. 132, 134 Greenslade v. lialliday i. 657 Greenup v. Brown ii. 108 V. Lyne's Heirs ,- . .ii. 784 Greenwade v. Greenwade ii. 429, 430 Greenwood v. Curtis i. 350, 513 Gregg V. Sayre's Lessee ii. 1003 Gregory v. i3augh. .i. 174, 259, ii. 299,499, 500, 506, 533 V. Dodge ii. 874 V. Gregory i. GS7, 693 V. Mulcsworth i. 702 \ . Thomas i. 758 Gregory's E.\-'rs v. Forrester i. 700 Grew V. Burditt ii. 674 Grey v. Smith i. 412 V. Smithyes i. 588 V. Young i. 182 Grier v. Orier ' ii. 402, 404, 716 V. Shackli'ford ii. 130 Griffin V. Bruwu ii. 52, 916 V. Mitchell ii. 130 V. Pratt ii.472 V. Warillaw ii. 63 (■Jriffith V. Black ii. 587, 593 V. Davis ii. 132 V. Dopeu i, 685 V. Dicken ii. 473 V. Frasior ii. 83, 89 V. Ketchum's Adm'r i. 409, 412 V. Reford i. 124 Griffith's Lessee v. Evans iii, 301 TABLE OF CASES CITED. CXXVll Griffith's Lessee v. Tunokhouser ii. 301 Griffiths V. "WUliama ii. 611 Grills V. Dickenson ii. 98, 179 V. ManneU i. 14A Grimes v. Smith i. 406 V. Talbot ii. 517, 566 Griswold V. Bigelow ii. 4:74 V. Messenger i. 477 V. Pitoairn ii. 186, 418, 419 V. Sedgwick ii. 389, 42 1 V. Stewart ii. 164 Groenvelt v. Burrell ii. 129 Groeuvelt's (Dr.) Case ii. 160 Groff V. Groff ii. 80 Groning v. Union Ins. Co ii.' 172 Grose v. West i. 609 Grounx v. Abat's Ex'rs ii. 81 Grout V. Chamberliu ii. 14 Grove v. Ware ii. 545 Grover v. Green ii. 822 Grubbes v. Heyser i. 827 Grubbs v. M'Clatchy ii. 510 V. Nye i. 431 Grumon v. Raymond ii. 146, 151, 15L', 154 GryUs V. Davies i. 100 Guernsay v. Palmer ii. 647 Guernsey v. Rodbridges ii. 656 Guest V. Homfrav i. 696, 698 Guidry v, Grivot" i. 198, 320 Guignard v. Mayrant ii. 705 Guinness v. Carroll ii. 185 Gulick V. Loder ii. 186, 188 GuUy r, Bishop of Exeter i. 870, ii. 72 V. Grubbs i. 477, ii. 656 Gunn V. Scovil ii. 112 Gunton v. Nourse '. ii. 409 Gurnee v. Dessies i. 8 Gurney v. Langlanda ii. 604, 607 Gurnsey v. Carver ii. 2;i, 120 V. Palmer ii. 740 Guthrie v. Gardiner ii. 702 GuUy V. Saunders ii. 368 Guy V. Hall i. 126, 326 V. Sharp ii. 706, 719 Guyon v. Lewis ii. 849 Gwinne v. Poole. ii. 107, 129, 140, 143, 150, 151, - 162 Gwinnett v. Phillips i. 838 Gwynn v. Jones' Lessee ii. 587 Gyfford v. Woodgate ; ii. 367 H. Haak v. Breidenback i. 856 Hacker v. Hardy ii. 865 V. Toung ii. 286 Hackett v. Martin i. 34 Hackley v. Patrick i. 496 Hackney v. Williams .ii. 593 Haddon v. Mills i. 328 Haddix'a Heirs v. Davidson . . .i. 687, 688, 690 Hadduck v. Wilmarth i. 125, 129 Hadficld V. Jameson ii. 299, 417 Hadley v. Green ii. 121 Hagaraan v. Stafford i, 218, 345, ii. 976 Hagaman's Case i. 383 Hagedon v. Laing i. 696 Hagedorn v. Raid i. 348 Haggard v. Van Amriuge L 696, ii. 548 Haggin v. Squires ii. 421 Hagood V. Swords ii. 675 Hagthorp v. Hook ii. 701 Hague V. French i. 868 Haig V. Newton i. 126, 129, 586, ii. 919 Haight V. Day i. 693 Haile V. Little .' i. 522 Hain v. Martin i. 33 Haines v. Beach ii. 63 Haines Barley's Case i. 666 Hainor v. Groves , ii. 709 Hair v. Glover i. 335 Haire v. Wilson i. 601 Hairston v. Cole ii. 1004 Halbert v. Skyles ii. 273, 341 Hale V. Andrus i. 739, ii. 21, 25 V. Goned i. 875 V. Henrie ii. 135, 645 V. Hills :. 742, ii 663 V. Inhab. of Portland i. 669 V. Jewell ii. 649, 683, 740 V. Russ ii. 483 Haley v. Caller i. 747 V. Hickman's Heirs ii. 883 Halifax's (Lord) Case i. 605 Hall y. Benner ii. 660, 722 V. Bynum ii. 490 V. Carruth ■. .ii. 64, 128 V. Dana ii. 108, 110, 118 V. Fisher i. 464, 465 V. Gitting's Lessee i. 4, 126, 225, 668, ii. 135, 583 T. Graham ii. 129 V. Hall i. 587, 693,' ii. 98, 537, 700 V. Hallett i. 692 V. Hamlin ii. 95 V. Houghton ii. 984 V. Howd ii. 152, 154, 156, 472 V. Huse i. 463, ii. 613 V. Leonard ii. 749, 753, 761, 772 V. Luther ii. 504 ■V. Maecubin ii. 671, 684 V. Moore ii. 152 V. Mott ii. 670 V. MuUin i. 8 V. Noyes i. 694 V. Odher i. 870 V. Perkins i. 693 V. Phelps i. 571, ii. 426, 460, 469 V. Rogers ii. 147 V. Sprigg ii. 701 V. Wilcox ii. 692 V. Williams ii. 98, 186, 188, 192, 197, 426 Hall's Case i. 535, 542, 641 Hall et ux. v. White i. 458 Hallett V. Hare M. 83 HaUiday v. Martinet i. 349, 360 V. Noble ii. 137 Halloway v. Lawrence. . .ii. 499, 500, 601, 503 Eallowell Bank v. Hamlin ; . . .ii. 298, 443 Halsey v. Brown ii. 730 V. Fairbanks i. 609 V. Leusebaugh ii. 919, 924 V. Stenard ii. 821 Ham V. Ham i. 625 V. Schuyler i. 662 Hamblett v. Hamblett .i. 102 Hamilton v. Averill i. 747 T. Burum ii. 156, 158 exxviii TABLE or CASES CITED. Hamilton v. Cawood ii. 645 V. Cutta i. 816 (Lady) t. Donegal (Marquis of) i. 655 v. Marsden . .i. 394, ii. 490, 492, 500, 505 V. Menor i. 225, ii. 1000 V. M'Guires . / i. 477, 685, ii. 495 V. Neel ii. 755 T. Russell ii. 1001 V. Shepperd i. 691, 702 V. Thomas ii. 702 V. Wagaer ii. 667 V. Williams : ii. 34, 115, 490 V. Wright ii. 106, 148, 398 Hamilton's Lessee v. Tan Swearingen . .iL 534 Hamlin v. Fitch i. 501 Hamlin's Adm'r v. Atkinson i. 441, 587 Hamraett v. Wyman ii. 375 Hammiok et ur. v. Bronson i. 251 Hammitt v. Bullitt's Ex'r i. 866 Hammon v. Hicks i. 686 V. Huntley i. 497 Hammond v. Puller i. 654 V. Holbrook ii. 540 V. Hopping . . .ii.521, 528, 566, 673 674 V. Norris ii. 518 V. Plank .ii. 539, 545 V. Ridgely i. 669, ii. 720 Hammond's Case ii. 599, 613 Hampden (Town of) v. Windham (Town of) ii. 1010 Hampshire v. Pierce ii. 762, 782 Plampton t. Garland i. 129 V. M'ConneU ii. 97, 187, 189, 192, 339 Hand v. Baldwin ii. 101, 258 V. Hoffman ii. 638, 749 Handley v. Call i. 186 V. Fitzhugh ii. 515 Hands v. James i. 610 Handy v. Johnson i. 186 V. The State u. 460, 499, 503 & Tall V. Johnstone i. 201 Hanks v. M'Kee ii. 672 V. Roberts ii. 1000 Hannaford v. Hunn ii. 123 Hannah v. Wardsworth ii. 656 Hannum v. Askew ii. 822 Hanover v. Turner ii. 97, 179 Hansard v. Hardy i. 681 Hansborough Bx'r v. Thom ii. 754 Hanson v. Barnes' Lessee i. 605 v. Haight i. 523 v. Kelly ii. 889 Harden v. Gordon i. 475 Hardin v. Baird's Heirs i. 605, ii. 73, 702 V. Kretsinger i. 690, ii. 540 Harding v. Alden ii. 96, 188, 190, 196 v. Brooks i. 425 V. Carter i. 456 y. Ci-aigie ii. 493 Hardway v. Moiison i. 4 Hardwick v. Mynd i. 694, 699, 700 Hardy v. Reeves i. 681, 702 Hare v. Hare ii. 98 V. Munn i. 819 Hargest v. Pothergill.' ii. 528 Harget v. Blaokshear ii. 363, 364 Hargett et ux v. ii. 352 Hargrave v. Shewin et al i. 829 Harkey v. Powell i. 679 Harlan y. Harlan i. 465 V. Reid ii. 674 Harland v. Trigg ii. 723 Harley v. Cook ii. 290 V. Emeriok i. 126 Harlon v. Pike ii. 475 Harlow v. Humiston Ii. 1005 T. Thomas. . . ii 646, 647, 721, 739, 758 Harmon v. Arthur i. 127 T. Brotherson ii. 103 V. Gould ii. 154 v. Watrous ii. 146 Harmony v. Brigham i. ,874 Harper v. Baker i. 747 V. Cook ii. 534, 561 v. Distrehan i. 746 V. Hampton ii. 429 V. Scott i. 6, 214, ii. 553 HarreU v. Ward ii. 552 Harrington v. Brown et al i. 869, ii. 90 V.Cole ii. 82 V. Commissioners, &c . . .ii. 130, 163 V. Fry ii. 599 V. Hall i.384 v. Macmorris i. 744, 745 T. Rich U. 402, 403 v. Wheeler L 698 Harris v. Aldritt ii. 325 V. Barber ii. 836 v. Bennett i. 71 V. Bishop of Lincoln u. 762 V. Caston ' ii. 674, 676 V. Cooke i. 858 V. Dinkins ii. 701 V. Hill ii. 897 V. HorweU ii. 649 V. Hudson i. 855 V. Johnson i. 478, IL 672 V. Lawrence i. 863 V. Nettleship ii. 108 V. Nicholas ii. 726 V. Paynes i. 736 V. Powell's Heirs i. 225 V. Richardson i 841 y. Tippett ii. 951 V. Tremenheere i. 692 V. Warner ii; 692 v. Wilson i. 4, 498, 742, il 903 Harris' Case ;. ij06 Harrison v. Brock ij. loio T. Burgess _ ii. 483 V. Cordell i. 344 V. Courtauld i. 100 V. Harrison. j; 685, 686, ii. 98, 196, 753 V. Hotlins ^ i. 600 T. Jameson ii. loO V. Lagow i. 370," 375 T. Lucas i. 686 V. M'Kinney i. 433 V. McMennomy , ii, 70I V. Middleton ii. gie,' 925 V. Park i IJ41J T. Rowan ii. 79, 210, 451, 907 V. Talbot ii. 698, 699, 700 ■^•Taylor i. 696 V. Trustees of PhiUpa' Acad. . .ii. 650, ^ „ 660 T. VaUanoo i. 326 TABLE OF CASES CITED. CXXIX Harrison's Devisees v. Baker i. 441, 508 Heirs v. Jolinson ii. 12, 73 Harrisons v. Baker ii. lOOi Harrod v. Barretto ii. 196, 198 Harshaw v. Moore i. 332 Hart V. Bloiglit ii. 66 V. Clialkner i. 652 V. Deamer ii. 266 V. Harrison ii. 11 V. Hawkins ii. TOl V. Heilner i. 3, 31 V. Horn i. 326 V. Lodwick ii. 125, 198 V. Newland i. 598, 599, 610, 611, 132 V. Wilson i. 349, 350 V. Yunt ii. 512 Hartean v. Harteau ii. 96, 119 Hartford v. Palmer i. 4, 9 Bank v. Barry i. 128 V. Hart ...■ i. 4-jI Bridge Co. v. Granger i. 429, 141 Pro. Ins. V. Harmer i. 119 Hartley v. Cook ii. 290 V. M'Anulty ii. 658 Hartman v. Stahl ii. 131, 664 Hartness v. Thompson. . . .-. i. 46 Hartpole v. "Walsh i. 681 Hartshorne v. Johnson ii. 28 Hartvvell v. Eoot i. 814 Hartwright v. Badham i. 650 Harvey v. Alexander ii. 656, 686, 690 V. Anderson i. 521 V. Ashley i. 695 V. Brown ii. 360 T. Grabham ' ii. 666, 681 V. Holland i. 822 V. HuggiQS ii. 65, 143, 155, 163 V. Jones ii. 493 V. Morgan ii. 630 V. Newton ii. 645 V. Richards ii. 18 V. Snow's Lessee ii. 404 Harw-ood v. Goodright i. 602 V. Oglander i. 686 V. Eawling's Heirs ii. 64 Hasbrouck v. Baker i 682, ii. 318, 814, 833 V. Tappan i. 855, ii. 695 V. Tan Dervoort i. 11 Haskell v. Greely ii. 651 v. Haven j ii. 259 V. Keen i. 611 V. Sumner ii. 129 Haskins v. Stuydevant ii. 612 Haslett's Adm'r v. Glenn ii. 81 Hassam v. Griffin ii. 824 Ha.stings v. Blue Hill Turnp. Cor . .ii. 258, 349, 587 v. Lowring i. 846 v. Palmer ii. 9.1 2 Haswell v. Bussing i. 24 Hatch V. Cobb i. 698 V. Dwight i. 654 V. Hatch . .i. 691, 694, ii. 483, 511, 660, 661, 119 Hatch's Lessee v. Barr ii 451, 414, 691 Hatcher v. Hatcher i. 684 Hatchet v. Marshall i. 805 Hately v. State i. 113 Hatfield v. Montgomery ii. 460 .Hathaway v. Goodrich ii. 254, 258, 361 Hathaway v. Spencer ii. 533 V. Spooner i. 441, ii. 581 Hatter v. Etenaud ii. 649 Hatton v. Banks L 463 T. McClish ii. 860 (Lady) v. Jay i. 682 Hautz v. Sought ii. 494, 505 Hauxhurst v. Hovey ii. 850 Hauxhurst's Case ii. 915 Haven v. Brown i. 512, ii. 804 V. Foster ii. 213, 428, 699 Haviland v. Cook i, 458 Havrass v. Bradshaw ii. 361 Hawes v. Barker ii. 645 V. Hathaway ii. 28 v. Leader ii. 686 V. Watson i. 456 Hawkes v. Baldwin ii. 310 Hawkins v. Barney's Lessee i. 823 V. Craig ii. 106 V. Gathercole i. 153 V. Hanson ii. 183 V. Hatton i. 81 V. Hawkins i. 33 T. Van Wiokle i. 132, ii. 884 Hawkins' et aL Case i. 1.06 Ex'rs V. Sumpter ii. 891 Hawley t. Beman ii. 614 V. Cramer l 681, 689, 692 V. Mancius i. 692, ii. 28 Hawn V. Norris ii. 650 Hay V. Hay i. 80 Hayden v. Mentzer ii. 651 V. Nott i. 825 V. Westcott ii. 583, 585, 586, 588 Haydook v. Cobb ii. 339 Hayes v. Caryll i. 698 Hayman's Kx'r v. Miller ii. 188 Haynes, Ex parte ii. 131 V. Butter ii. 492 V. Small i. 521 Hays V. Lusk i. 812 V. Richardson i. 102 v. Riddle i. 580 Hay's E.x'r v. Jackson ii. Vol Hayward v. Carroll ii. 72 V. Middletou ii. 728, 129 Haywood v. Perrine ii. 616 Hazard v. Martin i. 665 V. Robinson i. 656, 659 Hazletine v. Page ii. 1003 Hazzard v. K England Mar. Ins. Co ii. 128 V. Smith 1. 704 Head v. Harford i. 332 V. Perry ii. 126 V. Taylor i. 741 Head's Reps. v. McDonald ii. 128 Headen v. Rosher i. 694 Heagy v. Umberger ii, 645 Heald v. Cooper ii. 119, 126, 793 v. Heald i. 684, 701 Healy v. Jacobs i. 171 V. Moul ii. 476 Heane v. Rogers i. 458 Heaphy v. Hill i. 698 Heartt v. Corning i. 448 Heath v. Henley i. 688 Heath's Cases i. 441 Heathfield, Ex parte i. 700 Heaton v. Findley L 144 Vol. I. 9a cxxx TABLE OF CASES CITED. Heaton v. Hugell i. 679 !Hebert v. Landry ii. 614 Hebron v. Marlborough .-ii. 429 Heck V. Shener . : i. '745 Heckerman v. Hummel ii. 480, 488 Heckert v. Haines i. 29, 587, ii. 468, 521 Hedden v. Overton ii. 301 Hedge v. Glapp. . . , ii. 905 Hedger v. Horton i. 329 Heeley v. Barnes ii. 873 Heermans v. Williams ii. 393 Heffelfinger v. Sliutz '. i. 607, ii. 482 Hegden v. Heard ii. 929 Heicks V. Person ii. 615 Heilner v. Imbrie ii. 650, 699 Heister v. Davis i. 142 V. Eortner ii. 583, 585, 588 V. Lynchi i. 714 Helfinoh v. Stearn i .ii. 214 Hellaiu v. Maurin ii. 125 Helen v. Handley ii. 982 Hellman, use of HeJlraan ii. 587 Helm V. Handley ii. 907, 938 V. Small ii. 783 Helm's Case i. 601, 769 Ex'rs V. Jones ii. 514 Lessee v. Howard i. 599 Helmsley v. Loader i. 868 Helvete v. Rapp ii. 155 Hemenway v. Gates i. 685, 686 V. Stone i. 811, 817 Heming v. Gurney ii. 706 Hemiup, Matter of ii, 80, 83 Hempstead v. Bird .ii. 493 V. Reed ii. 429 Henderson v. Brown ii. 142 V. Hackney. . .ii. 445, 615, 709, 711 v. Hamilton i. 677 V. Moore ii. 1001 v. Sevey ii. 9 Henderson's Adm'r v. Clarke i. 746 Hendray v. Spencer i. 865 Hendricks v. Robinson i. 693 Hendrickson v. People i. 184 Hendrickson's Adm'r v. Miller : . . . .i. 434, 437 Henmau v. Dickinson i. 89, 606, ii. 483 Henry v. Bishop i. 426, ii. 460, 461, 469 V. Brown i. 863 V. Clelland i. 846, 866 V. Henry .■ . .i. 848 V. Lee ■. ii. 924 V. Milham ii. 118 V. Risk ii. 729 Henry's Lessee v. Morgan ii. 873 Henshaw v. Davis i. 336, 385, 38S V. Plcasauce ii. 160, 184- Henthorn v. Doe.ii. 426, 429, 445, 478, 484, 593 Henwood v. Cheesetnan ii. lOOO Hepburn v. Auld i. 664, G71, 698 V. Cassoll i. 124 V. M'Dowell i. 658 Herbert, V. Cook ii. 106, 107, 141 V. Wise ii, 783 Heroy v. Dinwoody i. 683, 699, 701 Heridia v. A.yres . : ii. 340 Herlock's Adm'r v. Riser i. 372, 378, 384 Herman v. Drinkwater i. 40 Herndon v. Giveus i. 102, ii. 352, 876 Herndon's Ex'rs v. Bartlett's Ex'r i. 682 EeiT v. Slough i. 428 Herrick v. Blair i. 214 Herring v. Boston Iron Co ii. 744 V. Levy i. 348, 370, 384, ii. 146 V, Selden ii. 273 V. Tylee ii. 808 Herrington v. Bradford ii. 672 Hersey v. Barton i. 445 Hershfleld v. Dexel i. 624 T. Harris i. 624 Hertford v. Boore i. 697, 698 Hess v. Beekman ii. 34, 109, 391 V. Fox i. 805, 838, 873 V. Heebie ii. 21 V. The State ii. 337, 605, 607 Hibbs V. Blair ii. 444 Hetherington v. Kemp ii. 549 Heupert v. Benn i. 684 Hewes v. WisweU ii. 533, 588 Hewes' Lessee v. M'DowaU ii. 301 Hewitt V. Piggott ii. 71, 322, 331 V. Prime .i. 138 Hewlett V. Cook ii. 476, 478 Heydon's Case ii. 725 Hey ward v. Middleton ii. 730 Heywood v, Perrin ii. 740 Hibsham v. DuUeban ii. 76 Hickes v. Cooke ii. 691, 693 Hickey v. Young ii. 62 Hickman v. Boflman i. 605, 814 V. Sk-inner i. 604, ii. 473, 474, 574 Hicks et ux. v. Martin i. 813 Hicks' Case i. 538 Higbee v. Rice i, 747 Higdon V, Higdou i. 33, ii. 660 V. Thomas i, 685, ii. 656 Higgins V. Chessman i. 461 V. Crawford i. 683, 684 V. Hayward ii. 1002 V, Scott i. 701 V. Soloman i. 571 Higginson v. Martin ii. 151 V. Meiu i, 678 et al, V. Air et al i. 499 Higgs V. Shehee i. 386 High V. Stainback i. 4 V. Wilson ii. 155, 366 Hightield v, Peake ii, 354, 381, 385, 976 Highland Turnp, Co, v. M'Kean ii. 295, 297 Highly V. Bidwell i. 301 Highmore v. Primrose i. 867 Hightower v. Ivy ii. 666 V. Joy ii. 670, 674 Hightower's Les,-^ee v. Wells ii. 588 Higlander v. Fluke i. 198, 320 Higley v. Bidwell i. 221, 222 Hildreth v. Sands ii, 690 Hildyard v, Crcssoy i. 702 Hill V. Bntcman '. .'.'.".'.'ii. 153 V. Buckminstcr i. 477, 483, ii. 674 V. Chapman i. 699 ■^•Cox ij. 984 V- Ci'osby i. 650, 651, 669 ^'•Elliott i.131, ii. 686 '^■^^7 ii. 670 *• I'll' ii. 533, 707 V. Manchester & S. Saltworks i. 460 v-Owen i. 633 V. Packard ii. 353, 419 V. Payson j. 121, 130 V, Phillips ii. 496 .TABLE OF CASES CITED. CXSXl Hill V. Scales ii. 501 V. Scott 1. 385 V. State il. 387 V. Stocking ii. 137 v. Unett ii. 507 V. "Wait u. 149, 155 Hill's Cass i. 106 Hillary v. Waller i. 651, 659, 670 Hilliard v. Kearney ii 640 Hilliker v. Loop i. 374- Hills V. Bannister ii. 69 1 V.Elliot ii. 686 Hilts V. Colvin.i. 23, 583, 604, 814, ii. 349, 533 Hincksman v. Sn2ith i. 694 Hincle v. Carruth ii. 361 Hind V. "Willis ii. 143 Hinde v. Vattier ii. 429, 434 Hinde's Lessee v. Longworth ii. 690 Hindmarsh's Case i. 711 Hine v. Bobbins ii. 588 Hines v. Oldham ii. 65, 129, 146 Hinman v. Breese ii. 378, 534 Hinson v. Henderson ii. 900 Hinton v. Pox i. 688 V. Locke ii. 726, 784 T. Townes ii, 188, 202 Hinxman's Case i. 535 Hiram (The). . .- ii. 700 Hitchcock V. Aicken ii. 186, 187, 200 V. Hariis ii. 667 V. Tyson i. 791 Hitchcock's Case i. 773 Hitohin v. Campbeil ii. 21 Hite V. Long ii. 25, 115 V. Tlie State ii. 755 Hite's Heirs v. Shrader -.ii. 574 Hoag's Case i. 706 Hoare v. Graham ii. 676 Hobbs V. Middleton ii. 133 Hobson V. Blackburn ii. 122 v. Doe ex d. Harper i. 394 Hobby V. Dana i. 778 Hoddy's Lessee v. Harryman . .ii. 476, 583, 587 Hodge V. Owings i. 688 Hodgdc-n v. White ii. 390 Hodges V. Crutcher i. 737' V. Deadricks ii. 145 V. Drakeford i. 577 V. Hodges ii. 24 V. Holder i. 818 v. Horsefall ii. 741 V. Marine and Fire Ins. Co.ii. 647, 683, 709 V. Mulllkin i. 131 Hodgkinson v. Marsden i. 786 Hodgson V. Hancock ii. 700 V. Hodgson ii. 762, 771 Hodle V. Healey i. 679 Hodson V. Cooke ii. 139, 151 Hoe's Lease ii. 366 Hoffman v. Coster i. 24, ii. 645 V. Porter ii. 723, 761 V. Savage i. 651 V. Smith i. 135 HofEnagle v. Leavitt i. 850, 872 Hog V. Perry ii. 683, 588 Hogan V. Delaware Ins. Co ii. 700 V. Mahon i. 751, ii. 129 HogB V. Hoge ii. 701 Hoge's Lessee v. Pislier i. 604 Hoggart V. Scott i. 697 Hogland v. Sebring ii. 460 Hoit V. Maloney ii. 144 V. Moreton ii. 952 Holbrook v. Blodget ii. 653 V. Gay i. 344, 386 V. Murray ii. 188, 198 Holcomb V. Cornish ii. 397 Holden v. Curtiss et al ii. 30 Holding V. Piggot ii. 792 Holdman v. Brassfield ii. 367 Holdridge v. Gillespie i. 692 Holhead v. Abrahams i. 871 Holiday v. Mann i. 737 Hollcer v. Parker ii. 407 HoUaday v. Marsh ii. 916 ., Bx'r V. Littlepage i. 303 Holland v. Duffln ii. 122 V. Hopkins i. 870 HoUey's Adm'r v. Christopher i. 408 HolUngshead v. Allen i. 385, 518 HoUingshead's Case i. 689, 702 Hollingsworth v. Barbour ii. 53 V. Duane . .ii. 830, 832, 862, 866 V. Dunbar i. 826 V. Ogle i. 745 Hollis' Case i. 688 HoUister v. Hollister ii. 47 T. Johnson i. 456 HoUoway v. Collins i. 699 Holman v. Borough i. 863 V. Collins i. 624 Holme V. Carpser . . . .„ ii. 674 V. Smith ii. 819 Holmes v. Anderson ii. 972 V. Avery ii. 30 V. Broughton. .i. 611, 624, ii. 187, 188, 197, 428 V. Comeggs i. 137 V. D'Camp ii. 566 V. Kimball i. 138 V. Marden i. 377, iL 568 V. Meynel i. 611 V. Nuncaster ii. 155, 363 V. Remsen ii. 61, 108, 186 V. Simons ii. 645, 700 V. "Williams i. 119 et al. V. Ketlinger i. 413, 497 Holridge v. Gillespie . . ., i. 23 Holroyd v. Liddle ii. 825 Holt V. Alloway .ii. 188, 201 V. Commonwealth ii. 860, 871 V. Crume i. 739, 740 T. Holt i. 692 V. Squire i. 440, 509 Helton V. Gleason ii. 192 Holtzapple's Lessee v. PhUlibaum . .i. 177, 669, 671 Holyoke v. Haskins i. 690, ii. 89 Homan v. Thompson i. 102 Home V. Smith > ii. 828 Homer v. CiUey ii. 480 T. Dorr ii. 720 V. Pish i. 702, ii. 29, 30 V. Wallis il 461, 493, 500, 613 Homes v. Aery ii. 401 Hony T. Hony i. 688 Hood T. Eeeve i. 349, 508, 515 Hooe v. Pierce ii. 171 Hook T. Paige i. 822 cxxxu TABLE OF OASES CITED. Hooke V. Grave ii. lOi Hooker v. Rogers . . .iL b61, 865, 866, 867, 868 Hoomes v. Elliott ii. 73 V. Smock ii. 68 Hooper, Ex parte ii. 644 V. Edwards i. 186 v. Smith ii. 808, 814 v. Stewart i. 464 Hoose V. Sherrill ii. 363, 389 Hope's Case i. 542 Hopewell v. Amwell ii. 455 Hopkins v. Banks i. 30, 56, 481, 499 V. De Graffrenreid ii. 507 V. Hopkins ii. 179, 366 V. Lee ii. 18, 19, 20, 44, 61 V. Maggaire ii. 597, 617 V. Smith i. 89,.408, 749 V. Stump ii. 211 and Gannon's Case i. 495 Hopkins' Ex'ra v. Mazyok ii. 699 Hopper V. Commonwealth ii. 889 v. Hackett ii. 403 Hord T. Dishman , 'ii. 588 Horford v. Wilson ii. 1001 Horneyer v. Lushington ii. 173 Hort v. Jones ii. 867 Horton v. Auohmoody ii. 103 V. Hagler's Ex'r ii. 588 Hosaok V. CoU. of Physicians i. 488 V. Rogers i. 88 Hosford V. Poote ii. 120, 577 v. ISrichols ii. 430 Hoskins v. Miller ii. 452 Hotchkiss V. Lyon i. 308 V. Nichols ii. 18, 62 Houck V. Crouse i. 746 Hough T. Doyle i. 381 V. Patrick i. 87 Houghton V. Gilbart ii. 733 V. Page i. 125 V. Townsend ii. 47 Ex parte ii. 702 Houliston V. Smith i. 81, 187, ii. 389 Hourquebie v. Girard ii. 399 House V. Low i. 475 V. Toung i. 856 Houseman v. Roberts ii. 528, 529 Hovenden v. Annesley i. 685, 687, 690, 702 Hovey v. Hovey ,. .i. 437, 438, 440, ii. 210 V. Newton. . . ." ii. 646, 666 V. Shumway ii. 674 HoviU V. Stephenson ii. 490, 491 How's Case i. 616 Howard v. Aiken i. 609, 685, 686 V. Cobb i. 501 V. Harris i. 681 V. Mason i, G56 V. Mitchell ii. 38 V. Peete i. 842 V. Rogers ii. 645 V. Smith ii. 134 V. Sueton i. 761, 827 V. Taylor i. 71 V. Thompson i. 165 V. Tucker i. 460, 462 Howe V. Bass ii 783 V. Lawrence i. 523 V. Starkweather ii. 375 Howell V. Baker i. 693 V. JBarden i. 316, 318, 378, 379 Howell V. Commonwealth ii. 935 T. Hooks ii. 698 V. House i. 664 V. M'Coy i. 654 v. Price i. 681 V. Richards i. 866 Howell's Lesisee v. Tilden i. 223 Howes V. Barker iL 657, 669 Howland v. Leach i. 696 V. Lenox ii. 811 V. Sheriff of Queens Co ii. 925 V. "WiUetts i. 68, 521, ii. 9 Howson V. Hancock ii. 685 Hoxie V. Carr ii. 703 T. Wright ii. 1S6, 187, 190, 198 Hoyatt V. Phifer ii. 574 Hoye T. Penn ii. 686 Hoyt V. Gelston 1. 454, ii. 28 V. Hudson ii. 373 V. Molony ■ iL 105 Hubbard v. Elmer L 512 V. Goodwin iL 701 V. Hobson ii. 118 T. Martin ii. 699 V. Spencer ii. 145 Hubbell V. Coudrey iL 186 Hubby V. Brown i. 120 Plucheson v. Pope ii. 651 Hackstep v. Matthews i. 695 Hudgins v. Wright L 822 Hudson V. Guestier.' iL 177 V. Hudson's Ex'r L 699 V. Hulbert L 126 V. Isbell iL 649 T.Swift L 696 Huet v. Fletcher L 699 Huff V. Bennett . . .L 165, 390, 400, ii. 416, 925 v. Huff iL 119 Huger's Adm'rs v. Osborn ii. 374 Hugh V. Robinson L 622 Hughes V. Blake .• iL 20, 33 T. Cornelius iL 172 V. Easten iL 511, 661, 662, 663 V. Edwards L 678, 679, iL 649 V. Hampton L 383 V. Harrison ii. 5H V. James i, 460, 594 v. Moore i. 744 v. Smith ii. 725 v. Wynne i. 694 Hughes' Case ii. 604 Hughes, Ex parte i. 692 Hughes' Adm'rs v. Stokes' Adm'rs i. 92 Huidekoper v. Cotton i. 133 Huling V. Foote's Adm'r ii. 89 Hulke V. Pickering j. 6S2 Hull V. Blake ii. 33 T. Commonwealth i. 641 V. Hull i. 196 V. Turner j. 372 Hulsecamp v. Teel ii. 144 Hultz V. Wright ii. 650 Humbert v. The Meth. Episcopal Church. ii. 743 Hume V. Burton iL 20, 79, 112, 160 v. Gillespie j. 741 V. Lang's Reps i. 603 V. Scott • ii. 956 Humphrey v. Cottellyou i. 804 T. Humphrey i. 768, 763 V. MoCraw L 186 TABLE OF CASES CITED. cxxxm Hunscomb v. Hunscomb i. 16, ii. 953 Hunt V. Adams ii. 483, 668, 669, 675, m V. Bloomer ii. 997 V. Boylan ii. 378 T. Bridgham i. 308 V. Edwards i. 126 V. Fish ii, 982 V. Freeman ii. 700 V. Gist ii. 749 V. Hapgood ii. 79, 83 V. Hort ii. 765 V. Livermore i. 696, ii. 576, 740 V. Lyle ii. 60, 66, 188, 190, 202, 427 V. Owings ii. 588 V. Rousmanier ii. 68, 699. 700 V. United States ii. 692 V. Wickliffe i. 690 V. Wilson ii. 406 Hunter v. Bryson ii. 86 V. Commonwealtli.i. 541, 564, 565, ii. 250 V. Davies i. 684 V. Glenn ii. 501 V. Graham .- ii. 687 V. Hunter i. 29 V. Jones .i. 327, ii. 69, 128 V. Kehoe ii. 909 V. Kirk ii. 37 V. Rice ii. 408 V. Smith , i. 348 V. Stevenson i. 126 V. Trustees Sandy Hill . .i. 40, 227, 334 et al. V. Spotswood i. 688 Huntiugdon's (Ld.) Case I 611, ii. 140 Huntington v. Amer. Bank i. 747, 791 Hurd T. Moring i. 142, 157 V. Swan i. 814, 828, 833 V. West i. 326, 330 Hum's Lessee v. Soper ii. 587, 657 Hurst V. Beach ii. 753 V. Dippo ii. 301 V. Watkins i. 808 Hurst's Case ii. 821, 822 Lessee v. M'NeU i. 668, 810, iL 7 Hussey v. Allen ii. 286 V. Jewett ii. 674 v. Man. and Mech. Bank i. 602 Huston V. Noble ii. 699 Hutcheson v. M'Nutt's Heirs ii. 699, 700 Hutohins v. Eden ii. 813 V. Fitch ii. 33 Hutchins' Case ii. 612 Hutchinson v. Coleman i. 654 V. Sandt et al ii. 266 Hutchinson's Adm'r v. Sinclair ii. 656 Hutt, Ex parte ii. 313 Hutton V. Warren ii. 792 Haxham v. Smith ii. 107 Hyam v. Edwards ii. 282 Hyde v. Henry ii. 124 V. Stone i. 427 Hyers v. Green ii. 1010 V. Wood ii. 1010 Hyers' Case ii. 348 Hylton's Lessee v. Brown ii. 334, 538 Hyne v. Campbell ii. 650, 656, 657 Hyskm V. Giv^ ii. 368 I. loehour v. Martins ii. 829 Iddings V. Iddings ii. 645, 752 Iggulden V. May ii. 803 Imlay v. Rogers i. 7, 167 Imperial Gas Co. v. Clarke iL 316, 331 Impey v. Taylor i. 866 Inchiquin (Earl of) v. BurneU i. 698 Independence v. Pompton i. 153 Ingalls V. Lord , ii. 997 Ingersoll v. Sawyer ii. 367, 375 Ingham v. Crary ii. 344, 360 Inglee v. Bosworth ii. 142, 145 Inglehart v. Jernigan ii. 889, 926 Ingles V. Ingles' Ex'r i. 482 Ingraham v. Bookius i. 379, 380, 381 V.Hall i. 568, ii. 25 V. Hutchinson i. 656 V. White ii. 511, 512 Ingram v. Hall . .ii. 25, 460, 467, 483, 494, 501 V. Lea ii. 670 V. Milnes iL 403 v. Webb iL 402 Ingram's Heirs v. Cocke iL 195 Inhabitants of Knox v. Inhab. of Waldo- borough ii. 34 Sumner V. Lebee.iL282, 684, 687 Worcester v. Eaton i. 122 Inlin V. Commonwealth ii. 661 Inman v. Jackson iL 475 V. Jenkins ii. 47, 397 Innia v. CampbeU L 603, 641 V. Miller IL 402 V. Roane iL 1 10 Inscoe V. Proctor ii. 698, 699, 700 Inslee v. Prall L 336, 358 Irby V. Little's Adm'r ii. 649 V. M'Kissack ii. 64 Ireland v. Kip L 738 V. Powell L 175, 219 Irish V. Smith ii. 975 Irvine v. Buokaloe L 511, 514 V. Campbell L 686 V. Divine iL 60, 61 V. Robertson i. 700 Irving V. Greenwood i. 190 V. Irving ii. 493, 501 V. Mortley i. 508 Irwin V. Deyo iL 813 V. Knox iL 24, 119 V. Potter ii. 674 V. Reed L 394 V. Simpson iL 352 V. United States ii. 709 Isaacs V. Camplin ii. 472 Isham V. Wallace ii. 481 Ivat V. Finch L 189, 200, 324 Ives V. Commissioners of Insurance ii. 62 V. Lynn L 605 V. Pickett et al L 86T Izzard v. Izzard ii. 722 J. Jack V. Dougherty ii. 656, 658, 686, 690 V. Martin L 621 Jackson v. Allen ii. 532 V. Ambler ii. 406 V. Anderson iL 366 V. Bailey iL 213, 224 V. Blount iL 649 V. Boneham L 214, 250 cxxxiv TABLE OF CASES CITED. Jackson t. Bowen ii. 373 v. Brooks .i. 474 V. Browner . . . , ii. 393 V. Caldwell ii. 365, 366 V. Cuerden i. 455 V. Davis ii. 407 T. Delong ii. 402 V. Etz , i. 214 V. Gager ii. 409 T. Hammond ii. 351 V. Hart ii. 69 V. Hasbrouok ii. 364 V. Heath i. 89, ii. 674 V. Henderson ii. 1002 V. Hesketh i. 818 V. Hilis ii. 42 V. Hunt ii. 402 V. Jackson ii 90, 96, 180, 188 T. Jeft'ries ii. 83, 86 V. Jones ii. 393 V. Kip ii. 618 v. Kniffen i. 315 T. Leek ii. 210 T. Mann ii. 830 T. Martin ; .ii. 259 V. Mason ii. 862 T. Miller ii. 258 V. Pierce i. 678 V. Pratt ii. 347 V. Randall ii. 42 T. Bice ii. 218 V. Boberts' Ex'ra ii. 365 V. Bobinson ii. 20, 452 v. Bowland ii. 393 V. Seager ii. 819 T. Smith ii. 808, 810, 831 V. Stacey i. 650 V. Stetson i. 745 V. Stone ii. 15, 42 V. SummerviUe i. 188, 471 V. Vedder ii. 4, 7 Y. WethereU i, 848 T. White i. 474 T. Wincliester i. 390, 437 V. Wood ii. 40, 46, 53 Jackson ex dem. Ballon v. Campbell. i. 461, 604 Barclay v. Hopkins ii. 592 Barton v. Crissey i. 392 Bates T. Lawson. . .i. 392, 402 Beekman v. Witter. i. 179, 221 Benson v. Matsdorf . . . .ii. 701 Bogert T. King. .i. 256, ii. 282, 443, 506 Bond V. Root. .ii. 494, 505, 554 Bonnel v. Foster ii. 645 Bowman v. Christman. .ii. 470, 477, 488, 490 Boyd T. Lewis. . . .ii. 506, 952 Bradt v. Brooks. . .i. 474, 670, ii. 476, 477, 574, 618 Brown y. Betta i. 662, 743, ii. 518 Burhans v. Blanshaw. .ii. 475, 477, 48i Burr V. Shearman, .i. 197, 463, ii. 521, 523, 530, 816 Bush V. Hasbrouck. . . .ii. 560, 561, 562 Butler V. Widger ii. 783 Caldwell v. Hallenback .i. 604 Jackson ex dem. Caldwell v. King.i. 608, ii. 687 Church T. Hills ii. 15 Clark V. Morse ii. 472, 473 Clarke T. Randall ii. 78 Clowes v.Vanderheyden.ii. 646 Coe et al. v. Kniffen . . .i. 286, 315, 317 Colden t. Moore i. 670 CoUier v. Jacoby L 607 Coiistantine v. Warford .L 664 Cook V. Shepard . .ii. 473, 475 Craigie v. Wilkinson. . .ii. 783 De Mont v. Sackett ii. 869 Dickson v. Stanley ii. 771 Donaldson v. Luoett. . . .ii. 560 Donally v. Walsh .i. 179, 699, ii. 295 Dox T. Jackson i. 100, ii. 647, 651, 657 Dunbar v. Todd. . .ii. 561, 592 Duncan v. Harder i. 64S Eames t. Phipps. . .i. 661, 662 Eden v. Eatbbone i. 786 V. Tarick. . .ii. 907, 988 Edson V. Gager. . .ii. 407, 460, 493 EUice V. Britton. . .ii. 460, 783 Erwin v. Moore. . .L 661, 668, 671, 783 Peeter t. Sternberg.-. . .ii. 646 Peller v. Feller ii. 702 Finch V. Hoagland ii. 812 Fowler t. Loomis .• i. 714 Gansevoort v. Luun L 662 Gibbs V. Osborn i. 606, ii. 587, 590 Gillespy v.Woolsey .i. 390, 393, 397, 665, 670, ii. 521, 533, 573 Glover v. Winslow i. 603 Goodrich v. Ogden. .i. 56, 483 Goose T. Demarest i. 699 Gould V. Gould ii. 583 Gratz v. Catlin ii. 661 Green v. Kent ii. 825, 848 Griswold v. Bard. A. 314, 318 Hardenbergh v. Schoon- raaker ii. 587, 590, 660 Havens v. Sprague ii. 739, 783, 785 • Haverly v. French i. 135, 137, 138 Hill V. Streeter . . .ii. 475, 743 Hills V, Tuttle i. 441 Hooglandv. Vail.i. 496, ii.'533 Hooker y. Mather i. 757 Hopkins v. Leek i. 126, ii. 660, 983 Houseman v. Hart ii. 772 Howell V. Delancey ii. 657 Hungerford y. Eaton . .ii. 587, 590, 592 Hunt v. Luquere ii. 476 Hunter V. Page ii. 165, 366 Jenkins V. Robinson .ii. 78, 79 Johnson v. Talmadge . .ii. 883 Kane v. Sternbergh. . . .ii. 375 KeUogg V. Vickory ii. 586, 592 Kincard y. Scott ii. 812 King v. Burtis i. 145 Kip v. Murray i. 179, 671 TABLE OS CASES CITED. cxxxr Jackson ex d. Elock v. Bightmyre.i. 603, 665 Krom V. Brink i. 662 Lansing v. Chamberlain .ii. 494 Lewis T. Larroway.ii. 476, 477, 869 Livingston v. Earringer.ii. 783, 785 V. Barton . . .ii. 480, 494 V. Delancy. . . .i. 701 V. Frier. i. 32, ii. 517, 532, 560, 739 V. Neely ii. 516, 532, 561, 574 V. Sohutt i. 663 V. TenBroeck.ii. 803 Loop V. Harrington i. 474 Low v. Eeynolds i. 455 LoweU V. Parkhurst ii. 719, 872 Mackay v. Slater i. 679 Malin V. Malln ii. 483, 861, 867 Mancius v. Lawton iL 772 Mapea v. Frost i. 130 Martin v. Pratt i. 678, ii. 475, 743 Marvin T. Hotchkiss.i. 678, 682 McCarty v.VanDalfsen..i. 692 MoOrea v. Duulop . .ii. 661, 664 M'Donald v.MoCall. .i. 315, 665 Merritt v. Guraaer. .ii. 586, 592 V, Staunton ii. 585 M'Fail V. Crawfords ii. 79 Miller v. Hixon ii. 78 V.Porter i. 603 Miner v. Boueham. .i. 255, 264, ii. 282, 770 M'Lellan v. Mather. ii. 806, 849 M'Naughtou v. Loomis . .ii. 782 Montgomery v. Chapin . .ii. 592 Montressor v. Eioe. .ii. 210, 583 Munroe v. Parkhurst. . . .ii. 574 Murphy v. Van Hoesen.ii. 722, 738 Murray v. Denn i. 646 V. Hazen i. 646 Myera v. Elsworth i. 699 Neilson v. M'Vey . . .i. 145, 486, ii. 536 Norris v. Smith i. 455, 743 Korton v. Sheldon ii. 302 Overacker v. Cole ii. 784 Parker v. Phillips . .ii. 461, 592, 612 People V. Etz. .i. 174, 253, 264, 752, ii. 978 V. Pierce i. 678 V. "Wendell ii. 783 V. 'Wood i. 678 Pintard v. Bodle . . .ii. 661, 662 Potter V. Bailey i. 390, 391, 393, 395, 397 Putnam v. Bowen . .ii. 545, 785 Kamson v. Shepard ii. 592 Randall v. Davis ii. 575 Rieley v. Livingston ii. 592 Rogers v. Clark ii. 785 V. Gardenier il 783 Roberta v. Ivea ii. 784 Rooaevelt v. Stackhouse . . i. 671 Eoss V. Cooley. .1. 250, 257, 259 Jackson as d. Rounds v. M'Chesney . . .i. 319 478, 685 Ruasell v. Croy ii. 645 Sackett v. Saokett . .i. 678, 682, ii. 675 Saunders v. Caldwell ii. 646 Sohenck v. "Wood ii. 804 Schuyler v. Russell. i. 257, 663, ii. 618, 560, 563 Selye v. Morse ii. 701 Shaw V. Spear i. 455 Shultz V. Goes iL 506, 761, 773 Sinclair v. Bailey i. 872 Sitzer v. Waltermire. . . .ii. 78 Skinner v. Packard ii. 981 Smith V. Marsh ii. 782 V. Pierce L 671 V. Stewart i. 699 Southampton V. Cooley. . .i. 455 Sparkham v. Porter i. 647 Staring v. Defendorf . . . .ii. 783 Sternberg v. ShaiTer i. 814 Stewart v. Kingsley.ii. 483, 487 Sufferuv.M'Connell.ii. 783, 785 804 Swain V. Ransom. . .ii. 734, 739 Swartwoutv. Cole.i. 440, ii. 518, 561 V. Johnson . . .i. 680 Taylor v. Cullum. . .ii. 352, 516, 534 Teed v. Halstead i. 473 Ten Eyck v. Frost, .ii. 783, 784 v. Perkins ii. 660, 847 V. Richards .- A. 177 Titua V. Jones ii. 333, 686 T. Myers, .i. 34, 318, 319, 326, ii. 687 Tracy v. Hayner . . .ii. 587, 590 Trustees, Ac. v. Plumbe. .i. 746 Tuttle V. Gridley i. 10, 16 "V"an Alen v. Ambler ii. 402 Tan Buskirk v. Claw i. 251 Tan Dusen v. Scissam. . .ii. 319, 455 v. Tan Dusen. L 604, ii. 598, 612 Tan Rensselaer v. Clark .ii. 963 Tan Schaick v. Davis L 32, 319, il 476 v. Tincent. .i. 669 Tan Slyck v. Son. . .ii. 876, 963 V. Tedder i. 463 TanTechten v.SUl.ii. 639, 719, 735, 749, 752 Tan Tredeuburgh v. Marsh u. 132 TariokT."Waldron. .ii.460, 493, 494 "Walsh V. Colden ii. 587, 590 "Walton V. Leggett ii. 298 "Watson T. Cris i. 176, 322 V. Esty ii. 473, 475 "Webb V. Roberts' Ex'rs .iL 472 473, 475, 574, 645, 646, 742 "Webber v. Harsen L 662 "Weidman v. Hubble 1. 646 "Whitlocke v. Mills iL 701 "Wilkins v. Lamb. .L 667, iL 477 exxxYi TABLE OF CASES CITED. Jackson ex d. "Williams v. Miller . . .i. 603, 660, 664, ii. 302, 701 Witherill v. Jones i. 412, ii. '743 Wood V. Harrow ii.21'7, 586, 592 Woodruff V. Cody i. 264, ii. 302, 494, 612, 173 V. Gilchrist ii. 592 T. Tibbits ii. 413 Wyckoff V. Humphrey. . .1. 129, ii. 587, 590, 930 Tatea v. How ii. 592 Young V. Camp ii. 783 Youngs V. Tredenburgh . i. 179, 195, 28B V. Young i. 872 Zimmerman v. Zimmerman ii. 785 Jacob V. Lindsay ii. 918, 922 V. Pierce ii. 8, 9 V. United States ii. 149 Jacob's Case ii. 447 Jacobs V. Benson ii. 711 V. Farrall i. 409 T. Hall ii. 338 V. Hill ii. 8 V. Hull ^ ii. 188, 200 V. Putnam i. 179 V. Sayborn i. 98 Jacobson's Case i. 613, 615 Jacoby v. Guier i. 749 Jaooby et al. v. Laussat i. 180 Jacock's Lessee v. GiUiam ii. 282 James v. Allen ii. 186 V. Betz i. 665 V. Biou i. 434 V. Bostwick i. 23 V. Chalmers i. 820 V. Conway i. 422 V. Goodrich i. 805 V. Gordon ii. 510, 583, 588 V. Hackley i. 497 v. Johnson i. 608, ii. 649 v. Morey i. 608, ii. 592 v. Richmond i. 373 V. Stonebanks i. 9 V. Walruth i. 866 Ex parte i. 692 James' Case i. 763 Adm'r v. Neal's Adm'r ii. 108 Lessee v. Gordon i, 517 V. Stookey. .i. 515, ii. 4, 125, 344 Jamin v. Norton ii. 406 Jane v. Price i, 647 Jannin v. Scammon ii. 929 Janson v. Ostrander i. 866 January v. Goodman i. 870, ii. 468 Jason V. Eyrea i. 680 Jeaoock v. Palkener ii. 738 Jeoker v. Montgomery ii. 99, 171 Jeffrey v. Parsons ii. 516 V. Walton ii. 669 Jeffrey's Heirs v. CoUis ii. 585 Jeffries v. Duuoomb i. 858 V. Harris i. 759 Jelf V. Oriel i. 871 Jeniaon v. Graves ii. 701 V. Hapgood i. 687, 692, ii. 81 Jenkins v. Biddulph ii. 582 V. Bisbee i. 251 V. Ev ana 1. 264 Jenkins v. Hogg \- 460 V. Hopkins j- 682 V. Jenkins i- 69^ V. Kinsley «• 421 V.Putnam ii- I'l, I''' V.' Tom et al i- 174 V. Union T. Co ii. 273 V. Waldron ii. 103 Jenks V. Stebbins ii- 158 Jenner v. Joliffe i. 582, ii. 378 V. Tracey |- 679 Jenner'a Case _. . . .i. 11 Jennings v. Blocker's Adm'rs i. 201, 332 V. Carter ii- 1 65, 398 V. Chenango Co. Ins. Co i. 782 V. Griffith ii- 285 T. Sherwood i. 654, ii. 734 V. Webster i. I" V. Whitaker i. 455, 459, 460 Jennings' Case }■ '05 Jennings, Ex parte ;: • '^ ^"^ Jennison v. Graves ii. 68, 702 Jenny v. Alden ii. 649 Jermaine v. Denniston i. 414, 447 v.North i. 343 Jermy v. Best ■}■ ''01 Jcrvis V. White ■ ii. 382 Jessel V. Millingen ii. 325, 332 Jessup V. Cook .i- 439 Jestons V. Brooke ii. 683 Jewell V. Center i. 624, ii. 340 V. Sohroeppel i- 855, ii. 694 Jewett V. Held ii 649 T. Warren ii- 650 Jim, a Slave v. State i- 537 Joce's Lessee v. Harris ii. 476 Jooelyn v. Donnel ii. 405 Joe V. Hart's Ex'ra i. 683, 684 John V. John ii. 335, 534, 566, 897 Johna V. Church ii. 653, 690, 742 Johnson v. Avery ii- 86 V. Beardalee i- 496 v. Birley i. 804 V. Blackman . . .i. 33, ii. 650, 658, 666 V. Bloodgood i. 481 V. Bourn ii. 4, 7 V. Brockelbank ii. 672 V. Carter -. i. 826 V. Chase i. 568 V. Crocker i. 825 V. Daverne i. 142, 157, ii. 600 V. Billiard i. 603 v. Durant i. 134, ii. 939 V. Emmons ii. 124 V. Farmers' Bank i. 131 V. Fowler ii. 588, 593 V. Gilson ii. 519 V. Gosa u. 929, 933 V. Gunn i. 376 V. Haight ii. 545 V. Hooker ii. 255 V. Jebb ii. 997 V. Johnson i. 133, 476, 695 V. Lemons ii. 128 V. Kerr i. 482 V. Marlborough (Duke of) i. 606 V. Mason ii. 469 V. Miln ii. 666, 672, 687 V. Pait i. 827 V. Parker ii. 27 TABLE OF OASES OITED. CXXXVll Johnson v. Patterson i. 325, ii. 980 V. RandaU ii. 148 V. Rannels ii. 78, 86, 87, 420 T. Eeed i. 696 v. Scribner .i. 713 V. Smith ii. 28, 360, 378 V. State . . .i. S3, 287, ii. 230, 887, 888 T. Stedman i. 218 V. Tallmadge ii. 883 V. Thompson i. 685, ii. 131 V. Weed i. 475 T. Wygant i. 696 Johnson's Legatee v. Johnson's Ex'r.i. 251, 630 Syndics v. Breedlove i. 370 Johnston v. Columb. Ins. Co i. 789 v. Diclsson ii. 674 V. Humphreys i. 688 V. Irwin i. 701 V. Knight ii. 469, 491 V. Ludlow ii. 173 Johnston's Lessee v. Haines. . .ii. 583, 585, 588 Joliffe V. Collins ii. 850 Jolley V. Taylor ii. 539 Jones V. Bache ii. 301 V. Becker i. 608 V. Blount ii. 500, 505 V. Boston MUl Corp ii. 409 V. Brick i. 374, 379 V. Brinkley ii. 505 T. Bullock i. 83, ii. 73 V. Caswell ii. 674 V. Conoway i. 690, 702 V. Cook i. 865 V. Coolidge i. 122 T. Cooprider Ii. 487, 493, 494 T. Cowley i. 847 V, Crawford ii. 137, 145 V. Bast Society, &c., Rochester . . . .i. 68 V. Edney ii. 678 V. Edwards ii. 530 V. Fales ii. 534, 566, 568, 730 V. Port ." .ii. 884 V. Hake ii. 674 V. Hayes , i. 621 V. Hilton ii. 530 V. Hoar i. 790 V. Huggins i. 404, ii. 619 V. Hughes ii. 154 T. Jennings i. 173 V. Jones, .i. 186, 259, 264, 384, 408, 418, ii. 98, 143, 663 V. Laney i. 624 V. Lanier ii. 938 V. Logwood ii. 455 V. Maffet ii. 431 V. Mason ii. 705 V. M'Neil i. 186, ii. 27, 28 V. Morgan i. 608 T. Murray i. 811 V. Neale ii. 846 V. Newman ii. 762 V. North Am. Ins. Co ii. 1002 v. Norton i. 83 V. Pengreo i. 702 V. Percival i. 651 T. Person i. 085, 686, 687 V. Phoenix (The) ii. 286 V. Porter ii. 587 V. Price i. 697 V. Randall i. 611 Jones V. Ruffin ii. 587 V. Sasser .ii. 656, 657 V. Sluby ii. 68, 71, 649 V. Soriven ii- 28 v. Stroud ii. 577, 926 V. Tevis i. 100 V. Tubberville i. 683, 684 V. Van Ranst ii- 812 T. Walker ii. 110, 156,'390, 398 V. Watkins ii- 699 V. Williams ii. 210 T, Witter i. 482 V. Wood i. 390, 393, 400 V. Teates ii. 686 V. ZoUicoffer ii. 361 Jones' Case i. 710, 770 Jones, q. t. v. Ross ii. 256 Jonesboro v. M'Kee i. 43 V. Roe i. 43 Joralimon v. Pierpont i. 856 Jordaine v. Lashbrooke i. 125 Jordan v. Cooper. i.32, 477, 685, 855,ii. 526, 650 V. James ii. 106 V. White i. 448 V. Wilkins ii. 537 Joy V. Hopkins i. 778 V. Wartz ii. 695 Joynes v. Statham ii. 649 Judd v.- Wilson ii. 401 Judge V. Morgan i. 842 Judge of Probate v. Briggs ii. 352, 450 Judson V. Blanchard i. 40, 978 V. Eslard ii. 562 V. Lake ii. 78, 79 T. Wass i. 696 Julia (The) ii. 544 Juniata Bank v. Brown. . .i. 178, 379, 384, 586 K. Kachlin V. Mulhallon i. 739 Kane v. Bloodgood i. 684, 685, 687, 658, 689, 702 V. Fisher ii. 116 V. Hamilton i. 698 V. Sanger i. 745, 746 V. Scofleld i. 867 Kanfelt v. Baver i. 685 Karpser v. Smith ii. 376 Karthaus v. Ferrer ii. 402, 437 Kaughley v. Brewer i. 380, 381 Kay V. Brookman ii. 496, 507 V. Waghorne .ii. 693 Kay's Bx'r v. Kelley i. 419 Kazer v. The State ii. 754 Kean v. Rice ii. 188, 341, 426, 427, 432 Kearney v. Smith ii. 108 Kearns et al. v. Keams' Ex'rs i. 499 Keating v. Price ii. 696 Kecherly v. Cheer i. 126 Keck V. Appleback ii. 397 Keech v. Sanford i. 692 Keefe v. Archdeken i. 127 Keel V. Herb i. 4 Keeler v. Bartine i. 744 Keeling v. Ball ii. 533 Keely v. Keely ii. 705 Keene v. Deardon i. 670, 681 v. Lownsbury ii. 301 V. M'Donough ii. 34, 109, 110 CXXXYIU TABLE OF CASES CITED. Eeene v. Meade i. 587, ii. 845 Kein v. Taylor .i- 29 Keieselbrack v. Livingston ii. 100' Keith V. Jones i- 825 V. Taylor i- M9 Kellar's Ex'rs v. Beelor ii. 8 1 KeUer v. Nutz i. 249, 250 v. Ord i. 384, 589 Kelleran V. Brown i. 147 Kelley v. Duulap ii. 506 Kelley's Case i. 190 Kello T. Maget , ii. 533, 577 KeUogg T. Kellogg i. 139, 144 V. Krauser i. 327 V. Mauney ii. 395 V. Eioliards ii. 654, 666 Ex parte ii. 109, 163 Kelly T. Brooks i. 104 V. Holdslip i. 371, 384 T. Hooper's Ex'rs ii. 66, 164, 203 v. Hurlburt ii. 277 V. Jackson i. 613 T. Powlett ii. 721, 752 V. Ross ii. 454 V. Thompson i. 650, 740 Kelsey v. Bush i. 406 V. Dickson ii. 671, 684 Kemble v. Farren i. 483 Kemp V. Baltimore Fire Ins. Co i. 488 V. Commonwealth i. 701 V. MaokriU ii. 604, 607 V. "Wamack i. 714 Kempe'sLesseev.Kennedy.ii.l05, 129,142, 196 Kemper v. Kemper ii. 684 V. Turner ii. 130 Kendall v. Russell il 728, 729, 730 V. Talbot ii. 38 Kendrick v. State i. 390, 391, 400 Kenedy v. Fauman i. 351, 379, 566 V. Gregory i. 189 V. PhiUipps i. 49 T. WooUblk i. 6^5 Kennebeck*Bank v. Hammatt ii. 728 V. Page ii. 728, 730 Kennedy v. Fowke ii. 525 V. Cassilis ii. 178, 184 V. Denoon's Ex'rs i. 682 V. Newman ii. 137 V. Niles i. 34 V. "Wacksmuth ii. 80, 84 Kenner v. Creditors ii. 716 Kenney v. Brown i. 692 T. Lowry i, 827 Kenny v. Clarkson ii. 538 V. Van Home ii. 433, 849 Kenriok v. Taylor i. 659 Kensington v. Inglis i. 917, 920 Kent T. Garvin i. 336, 352 V. Kent .'ii. 47 V. Lowen i. 329 V. Waite i. 650 V. Walton i. 175, 305, 329, 332 V. Weld ii. 510, 562, 588 Kentland v. Bissett i. 759 Kentucky Bank v. Vance's Adm'r L 473 Kenworthy v. Scofleld ii. 741 Kercheval v. Swope i. 697 Kema v. Swope ji. 567, 683, 585 Kerr v. Gilmore ii. 740 V.Love i. 378, 380 Kerr v. Moon's Devisees ii. 8S V. Shedden ii. 228 Kessler v. M'Conachy l 379, 380, 381 Ketchum v. Clark "• 277 Ketland v. Bissett ii- 845 Key V. Lynn h. 923 v.- Walker ii. 132 Keyesv. Keyes i. 589 Keys V. Powell ii. 660 Keyser v. M'Kissan i. 218 Keyton's Adm'x v. Bradford ii. 698 Kibbe v. Kibbe ii. 188, 198, 339 Kibbyv. Rucker ii. 279 Kidd V. Alexander ii- 688 V. Cromwell ii. 652 V. Riddle i. 32, ii. 526 Kidder v. Lovell i. 18 6, 187, 565 Kiddie v. Debrutz ii. 69 Kidney v. Coussmaker i. 700 Kieran v. Johnson ii. 521 Kilburn v. Woodworth ii. 197, 200, 338 Kilheffer v. Herr ii. 20, 22, 37, 44 KiUingsworth v. Bradford i. 4 Kimball v. Huntington i. 329 V. Lamson i. 29 V. Lopez ii. 375 V. MoneU ii. 514 V. Morrell i. 197, ii. 532, 755 V. Walker i. 672 Kimmell v. Kimmell I 764, ii. 952, 956 Kincaid v, PurceU i. 29, 46 Kine v. Beaumont ii. 640, 546 King V. Antrobus i. 231 V. Baker i. 35 V. Bathwick (Inhabitants of), .i. 85, ii. 379 V. Blackman i. 163 V. Bonner ' i. 292 V. Bozarth ii. 114 V. Bridge ii. 108 V. Buckingham ii. 315, 318 V. Chilverscoten, (Inhab.) ii. 472 V. .Commonwealth L 290 V. Colton i. 232, 246 V. Cope i. 363 ' V. Culpepper ii. 611 V. Danser ii. 139 V. Davis . . .i i. 561 V. Dudman ii. 384 v. Foster i. 184 V. Fuller ii. 117 V. Gilder ii. 186 V. Gould i. 555 V. Griffin i. 556 V. Horsley ii. 809 V. Inhabitants of Wareton i. 232 V. Jenkins i. 556 V. Jones i. 556, ii. 866 V. King : ii, 645 V. Kinny ii. 1001 V. Lewis i. 561 \'. Lowry i. 74, ii. 648 V. Luokup ii. 867 T. Madux's Exr's i. 348, 410 V. Mawbey U. 435 V. Miller ii. 802 V. Moorcritchell (Inhab.) ii. 472 V. Morphew ii. 865 V. Myers ii. 832 V. Newman ii. 649 V. Paddock i. 641 TABLE OF CASES CITED. CXXXIX King V. Pountney i. 544 V. Ratoli£fe ii. 862 V. Simpson i. 549 V. Sims ii. 810 V. Smith ii. 468 V. Spencer 1. 548 V. Spilsbury i. 292 V. Stubbs iL 650, 698 V. Tiffany i. 654, 657 V. Trustees of Northleaoh, &c ii. 321 V. Vanbilder ii. 189, 422 V. Vauglian ii. 810 V. Wardens of Merch. Tail. Co ii. 321 V. Waslibrook (Inhiab. of) ii. 411 v. Williams ii. 865 V. Witherly ii. 561 V. Woodruff ii. 665 of Spain v. Oliver ii. 864, 861 Kingsland v. Roberts i. 689 v. Tirdonnell i. 685 Kingsley v. Ternon i. 455, 465 Kingston v. Kincaid ii. 404 V. Lesley i. 664, ii. 282, 301 V. Phelps ii. 401, 408 Kingston's (Duchess of) Case ii. 40, 75 Kingwood v. Bethlehem, .ii. 460, 469, 501, 533 566 Kinloch v. Palmer i. G05, ii. 904 Kinney v. Plynn ii. 492 Kinnoul (Earl of) v. Money i. 611 Kinsman v. Crooke ii. 209 Kip's Case i. 43, ii. 937 Kip T. Brigham • ii. 8, 9, 52, 361 V. Deuniston i. 476, ii. 656 Kirby, Ex parte ii. 929 Bark v. Eddewes ii. 638 V. Nowill i. 745 Kirkhara v. Smith i. 608 Kirkland v. His Creditors ii. 106 V. Smith ii. 424 Kirtland v. Wenzer et al ii. 260 Kist V. Atkinson ii. 29, 30 Kitchen v. Bartsch ii. 802 V. Tyson i. 376, ii. 950 Kittles V. Kittles i. 188, 332 Kittridge v. Bellowes ii. 373, 374, 376 Bjtty V. Fitzhugh ii. 125 Kleine v. Catara ii; 403 Klinefelter's Lessee v. Carey i. 690 Knapp V. Hanford 1. 502 V. Harden ii. 670 V. Haskall ii. 879 Knight V. Adamson i. 666 V. Martin ii. 521 V. Mitchell i.' 835 T. New England Worsted Co i. 412 V. Packard i. 32 Knight's Case ii. 337 Lessee v. Pechen ii. 807 Knights V. Putnaifl i. 123 Knower v. Wesson i. 589 Knowles v. Connecticut i. 844 V. Don i. 232 V. McCarnly i. 823 T. Spence i. 679, 680 Knox V. Jenks i. 666 V. Silloway ii. 476, 480, 484, 521 V Work i. 854 Kolb V. Whitely i. 203 Koogler v. Hufiinan ii. 64, 128 Kraft T. Wickey ii. 86, 160 Krider v. Lafferty il 650, 725 V. Nargong ii. 58T Kugler V. Wiseman i. 386 Kuhn V. Miner ii. 186, 189, 422 Kuhtman v. Brown ii. 219 Kuncle v. Kuncle ii. 402, 405 L. Labar v. Koplen i. 44, 55 Labron t. Woram ii. 1004 Lacey, Ex parte i. 692, 693 Lacon v. Briggs i. 682 V. Higgins i. 817, ii. 423 Lacy V. Kenley ii. 14T Ladbroke v. Giles et al i. 822 T. James ii. 148 Ladd V. Blunt ii. 345, 373, 374, 386 Lade v. Holford i. 670 V. Shepherd i. 610 Ladsonv. Ward ii. 705 Ladue v. Van Vechten , i. 44 La Parge t. Kneelaud i. 402, 439 V. Luce ii. 812 T. Morgan ii. 258 V. Rickert ii. 668, 694 Lafon's Ex'rs v. Dessessart ii. 106, 108 Ex'x T. Gravier ii. 861, 862, 868 La Frombois v. Jackson i. 192 Lagow T. Patterson ii. 530 La Grille's Case i. 769 Laing v. United Ins. Co ii. 173 Lake v. People i. 778 V. Thomas i. 681 Lamalere v. Gaze ii. 903, 975, 976 Lamar v. Jones i. 679 Lamb v. Hart i. 372 T. Moberly i. 588, ii. 511 V. Stewart ij. 975 Lambert v. Sandford ii. 110 T. State i. 297, 298 Lamey v. Bishop i. 871 Lammat v. Browby ii. 699 Lampen v. Kedgewiu ii. 33 Lampson v. Fletcher i. 482 Lampton v. Jones ii. 725 V. Lampton's Ex'rs i. 29 Lanauze v. Palmer ii. 513, 540, 544 Lancaster v. Laire ii. 18, 66 Lance v. McKenzie i. 383 Lancum v. Lovell i. 43, ii. 131 Landis v. Urie L 870 Landsdale v. Brashear i. 671 Lane v. Cook ii. 25 T. Harrison ii. 32 T. MiKenzie i. 372 .V. Padelford i. 126 T. Shears i. 604 V. Stanhope (Earl of) ii. 722, 752 Laney v. Bishop ; i. 871 Langdon v. Hulls ii. 545 V. Potter ii. 86 Langendyck v. Burhans ii. 42 Langer v. Felton i. 124, 130 Langham v. Sanford ii. 752, 762 Langley v. Chute i. 659 Langslow v. Cox ii. 325 Langworthy v. Smith ii. 694 Lanning's Lessee v. Case i. 55 clx TABLE OF OASES CITED. Lanning's Lessee v. Dolph iL 364, 366, 58'? Lannum v. Brook's Lessee ii. 588 Lansdale v. Brashear i. 689 Lansing v. Gaino et al i. 442, 474, ii. 574 V. Gale & Ten Bvck ii. 277 V. M'Killip i. 849 V. Montgomery i. 745, 853, ii. 7 V. Russell ii. 343 T. Starr i. 689 Lanuse v. Barker ii. 1002 Lany v. Bishop i. 871 Laralde v. Derbigny ii. 8 Larkin v. Bobbins ii. 401 Larrat v. Carlier ii. 865 Larrimer's Lessee v. Irwin ii. 83 Lartigu'e v. Baldwin ii. 133 Larue v. Rowland i. 6, 386 Las Caggas v. Larionda's Syndics, .ii. 253, 588, 594 Lasher's Lessee v. Lewin ii. 663 Lasselle v. Brown i. 578 Latapie v. Gravier i. 463 Latham v. Edgerton ii. 20, 148 Lathrop v. Blake ii. 664, 714 Latimer v. Eglin ii. 433 Lattimore t. Harsen .- ii. 693 Lattin v. Vail ii. 674 Laugblin v. State i. 1 84 Laughton v. Atkins ii. 75, 78 Lautermilch v. Kneagy ii. 490, 492, 505 Law V. Jackson ii. 1006 V. Merrills i. 462, ii. 879, 1001 T. Scott i. 133, 164 Lawall V. Reeder ii. 744 Lawless ¥. Jones ii. 783 Lawley v. Lawley i. 685 Lawrence v. Barker, .i. 375, 825, 847, ii. 904, 920, 982 T. Beaubin ii. 699 V. Blow ii. 574 v. Dixon ii. 281 V. Hooker ii. 331 V. Hopkins i. 428 V. Houghton ii. 395, 872 V. Hunt i. 391, ii. 9, 40, 44 V. M'Gregor ii. 727, 728, 793 T. Obee i. 649 V. Ocean Ins. Co. .ii. 69, 70, 316, 332, 334 V. Schuylkill Nav. Co i. 476 V. Sebor ii. 7 24 V. Stonington Bank ii. 728 V. Swan ii. 210 V. Trustees, &o i. 500 V. Van Home ii. 530, 538, 724 Ex parte ii. 373 Lawson v. Scott ' ii. 1002 V. State i. 446 Lawther v. Chappel i. 491 Lawton v. Rivers i. 651 Lay V. Lawson i. 1 04 Layfleld's Case ii. 322 Layten v. Haygood i. 40 Laythoarp v. Bryant ii. 460 Layton v. Menard's Syndics i. 825 Lazarus' Case i. 001 Lessee v. Bryson i. 692 Lazell V. Miller ii. 31 Leach v. Beardslee ii. 789 V. Kelsey i 98 Leach v. Shepard i. 378 Leaff T. Butt .; "■ 527 Leake v. Gilchrist ii. 86, 87, 88 V. RandaU "■ ''53 Lear v. Yarnell ii. 673, 674, 683 Learned v. Bryant i|- 373 Leary v. Dearborn •••■}!■ ^^^ Leary's Case |i- ^''9 Leather v. Poultney ij- 9 Leavenworth v. Phelps i- 384 Leavitt v. Sims ii- 540, 545, 728 Leazure v. Hillegas ii- 346, 688 Le Baron v. Crombie i. 394, ij. 210 V. Redman i. 98 Le Cesne v. Cottin ii- 86 Lee V. Adkins .iL 155 V. Andrews ii. 864, 868 V. Bank of England ii- 86 V. Biddis ii- 667 V. Brown i- 699, 700 V. Clark ii- 4 V. Cooke i. 605, 814 V. Havens ii- 86, 87 V. Massachusetts Eire Ins. Co ii. 660 v. Tapscott i. 4, 221, 222, ii. 588 V. Tinges ii. 889 v. "Ware ii. 432, 674, 687 T. "Wharton ii. 480 V. "Woolsey i. 748 Lee's Heirs v. Lee's Ex'rs i. 604 Leech v. Armitage ii. 337 Leeds v. Cook ii. 521 V. Mar. Ins. Co i. 511, ii. 72, 73 Lees V. Nuttall ii. 701 V. "Whitoomb i. 849 Le Farrant v. Spencer ii. 721 Le Eevre v. Le Eevre ii. 692 Leffert v. De Mott i. 73 Leffingwell v. Elliot ii. 645, 722 Le Force v. Robinson i. 442, 463 Leftwich v. Berkley i. 853 Legg V. Legg ii. 273, 428, 429 V. MoNiel i. 57 V. Robinson i. 747 Legget V. Bank of Pennsylvania ii. 1003 Leggett V. Boyd i. 252, 256, 351, 866, 883 V. Dubois ii. 701 Legh V. Legh i. 480 Legrand v. Hampd. Sid. College ii. 273 V. Redinger ii. 820 Le Guen v. Gouverneur ii. 29 Leigh V. "W^ard i. 522 Lelaud v. Stone ii. 647, 656, 719, 721, 758 V. Wilkinson ii. 433 Leman v. Newnham i. 678 Lemaster v. Buckhart ii. 698, 700 Lenox v. Dehaas i. 32 Lent V. Hodgman ii. 670 V. Paddleford i. 869 Lentz V. Stroll i. 127 Leonard v. Franklin i. 757 V. Huntington ii. 286 V. Leonard ii. 75 V. Pitney i. 703 Lepiot V. Brown ii. 761 Lesley v. Rhoades i. 692, 693 Lester v. Jenkins ii. 373 V. Jewelt i. 843, 864 V. McDowell '. i. 98 V. Thompson ' ii. 116 TABLE OF CASES CITED. clxi Lester v. "Wright i. 822 Letcher v. Armstrong ii. 101 v. Letcher ii. '102 Lethbridge v. Phillipa '. i. 127 Lethulier's Case ii. 727, 788 Levan's Lessee v. Hart i. 32 Levenworth v. Phelps i. 384 Leveringe v. Dayton i. 374, 382, ii. 359, 421 Levezey v. Gorgas ^ ii. 404 Levingsworth v. Fox i. 605 Levy V. BaUard ii. 504 V. Burley i. 33 V. Cadet i. 491 V. Gadsby i. 739, ii. 274 v. Hampton , i, 677 V. Pope i. 483 V. Wilson i. 868 Lewin v. Dille i. 343, 385, ii. 219 Lewis V. Beatty ii. 512, 515, 588 V. Blair ii. 373 T. Brackenridge ii. 133 V. Brooks ii. 1 IS V.Clark ii. 144 V. Few ii. 1009 V. Fort ii. 343 v. Hawley ' ii. 1001 V. Knox ii. 128, 131 v. Kramer i. 361 v. Long i. 481 v. Manly i. 170 T. Marshall i. 264, 688, ii. 281 V. Morgan , .i. 745 T. Nangle i. 611 V. Paine i. 603 V. Price i, 649 v. Robards ii. 649 V. Sapio ii. 598 V. Spencer ii. 119 V. Teynham i. 684 T. Thatcher ". ii. 798 V. Wildman ii. 405 V. Woodworth i. 491, 500 Jjowis's Ex'r v. Bacon's Legatee i. 384 V. Norton i. 348 Heirs y. Lewis's Ex'rs ii. 81 Libby v. Bumham ii. 129, 143 Liebman v. Pooley i. 568, ii. 634, 569 Lies V. Stub i. 33 Life and Fire Ins. Co. v. Mech. Fire Ins. Co i. 602, ii. 520, 537 Liggins V. Inge i. 4 60 Lightner v. Martin i. 331 V. Wike i. 199, 391, 395, 398, 484 Ligon V. Orleans Nav. Co. i. 404, ii. 286 Like T. Howe i. 458 Lilly's Lessee v. Kitzmiller i. 223 Linberger v. Latourette i. 374 Lincoln v. Barr i. 779 V. Battelle ii. 339, 341, 353, .418 Lindaur v. Del. Ins. Co ii. 214 Lindenberger v. Beall ii. 545 V. Rosseau ii. 424 Lindley v. Cravens ii. 1 18 V. Sharp ii. 649, 683 Lindsay v. Commonwealth ii. 33 V. Scroggs ii. 301 v. WilUama i. 621 Lindsay v. Miller i. 701 Lingan v. Henderson ii. 652, 656 Lining v. Bentham ii. 129, 142 Linnell v. Sutherland i. 6, 375 , Linning v. Crawford ii. 588 Linscott V. Fernald ii. 645, 720, 784 Linsley v. Keys i. 745 V. Loveley i. 104, ii. 709 Lion V. Burtis i. 872 Lipe V. Mitchell's Lessee ii. 156, 389 Lippincott v. Barker i. 609 Lipsoombe v. Holmes i. 460 List V. Woodruff ii. 428 List's Case , ii. 821 Listen v. Hardy i. 98 Litchfield v. Farmington i. 741 Little V. Allison i. 201 V. Delancey ii. 371, 511, 521 V. Hasey ii. 146 V. Holland i. 855 V. Moore ii. 145 V. O'Brian ii. 674 V. Wyatt V i. 385 Litllebury v. Wright : . . .i. 822 Littlefield v. Getchell i. 201 V. Story i. 481 Littlejolm v. Underhill's Ex'r ii. 143 Littleton v. Cross ii. 360 V. Moses ii. 1001 Litton V. Litton i. 690 Livermore v. Badgley ii. 372 V. Herschell i. 831, ii. 28 Livett V. Wilson i. 650, 659, 669 Livingston v. Bishop i. 854, ii. 53 V. Finkle ii. 47 V. Harris. , ii. 937 V. Kiersted i. 4, 9 V. Livingston ii. 701 V. Maryland Ins. Co ii. 433 V. Peru Iron Co i. 603, 647 V. Rogers. ii. 517, 533, 634, 554, 560 V. Ten Broeck ii. 804 V. Tompkins ii. 937 Livingston's Ex'rs v. Livingston.!. 599, 673, 702 Llavelock v. Chevely i. 808 Llewellyn v. Mackworth i. 685, 686 Lloyd V. Anglin ii. 375 v. Collett i. 698 V. Freshfleld i. 137, ii. 577, 918 V. Ingliss .ii. 649 V. Jewell ii. 674 V. Keaeh ii. 674 V. Sandland i. 676 , V. Scott ii. 683 V. Spillet ii. 702 V. Taylor ii. 585 Lock V. Whiting ii. 645 Lockey v. Lockey ii. 688, 690 V. Schrieber i. 336, 385 Lockridge v. Carlisle ii. 588 Lockwood V. Ewer i. 679 V. Sturdevant i. 608, ii. 472, 474 T. Thorn.- i. 451 Loder v. Phelps ii. 147, 154 Lodge V. Berrier ii. 588 v. Pipter i. 35, ii. 608, 614 Lodgson V. Roberts' Ex'rs ii. 401, 409 Lofdand v. Ewing i. 742 V. RusseU ii. 674 Loftin V. Higgins ii. 373 Lofts V. Hudson i. 427, 441 Logan V. Siggerton ii. 145 V. State i. 289 clxii TABLE OF CASES CITED. Logan V. Steele's Heirs ;i. 455, ii. 64 V. Watts ii. T8 Loker v. Haynea i. 122, 130 London Packet (The) .ii. 844 Lonergan v. Royal Exoh. Insurance. . . .ii.'813 Long V. Bailie ii. 938, 939 T. Beaumont ii. 749 V. Champion ii. 12 T. Golburu ii. 691 T. Davis i. 392, 393, 394, ii. 383 T. Dupuy, ii. 68 V. Hitchcoclc ii. 889 T. Lamkin ii. 975 V. Long i. 33 V. Ramsay ii. 455, 1001 V. Sleiger ., ii. 889 Long's Case i. 542 Lessee v. Pellett i. 223 Longeneoker v. Hyde i. 176, 302, 308 Lonsdale v. Brown i. 126, ii. 670, 846 Looker vr Haloomb i. 752 Loomis V. Pulver ii. 30, 674 & Jackson v. Levins i. 485, 491 Loop V. Summers ii. 62 Lopes V. De Tastet i. S38, 857, ii. 812 Lopez V. Andrews i. 660, 669 Lord V. Cooke ii. 8G4, 866 V. Sutoliffe ii. 706 V. "Wardle ii. 685 Buokhurst's Case ii. 521 Loring v. Bridge ii. 28 V. Gurney ii. 728 V. Mansfield ii. 32 Lorton v. Gore i. 688, ii. 516, 561 Losee v. Loses ■ i. 215 Lett V. Burrell ii 873 Louisiana State Bank v. Rowel ii. 548 Louw v. Davis ii. 119 Love V. Braxton ii. 68 v- Buckner ii. 684 V. Cofer ii. 699, 700 T. Palmer ii. 674 V. Payton ii. 493 Loveden v. Loveden i. 600 Lovell V. Arnold ii. 53 V. Briggs i. 692, 693, 751 V. Field ii. 1003 Lovelace (Lord) Case of ii. 457 Low V. Mumford i. 853, 854 V. Price ii. ]49 V. Treadwell ii. 675, 680, 696, 700 Lowe V. Boteler et al i. 496 T. Lord Huutingtower ii. 722, 764 V. Payne i. 343, 386 Lowell V. Parkhurst ii. 739 Lower v. Winters i. 847, ii. 904, 958 Lowflold V. Stoneham ii. 753 Lowndes v. Campbell ii. 405 V. Chisliolm ii. 699 Lownds V. Remsen ii. 349 Lowry v. Brooks i. 849 v. Cady ii. 352, 359, 373, 377 V. Mountjoy ii. 1009 V. Pinson ii. 511 Lowther v. Lowthor i. 692 Loyd V. Freshlield ii. 918 Lozier v. Commonwealth i. 55 Lucas V. Curry's Ex'rs ii. 82, 118, 133 V. State , i. 90 y. Wilson ii. 405 Luce V. Sinvely if- 560 Luciani v. Amer. Eire Ins. Co ii. 694 Lucking v. Denning ii- 107 Lucy V. Pumfrey ij- f 17 Ludden v. Leavitt ■]■ 647 Ludlow v. Simons ii- 457 V. Union Ins. Co ii. 286 Ludwick V. Croll i. 457, 483 LuCfborough v. Parker ii. 586, 588 Lum V. Kelso et al ii- 353, 366 Lunning v. State i- 779 Lunsford v. Smith ii. 519, 553 Lurton v. Carson ii- 1002 Lush V. Druse i. 200, ii. 505, 783 V. McDaniel i- 179 Lusk V. Colvin ii- 884 Luttrell V. Reynell ii. 978 Lyford v. Coward i. 666 Lyles V. Brown ii. 83, 133 V. Caldwell ii. 83, 133 V. Lyles i. 689 V. Robinson ii. 90, 163 Lyman v. Lyman ii. 377 V. tfnited States Ins. Co ii. 700 Lynch v. Hugo i. 381 V. Postlethwaite ii. 493, 500 Lyncli's Adm'r ads. Petrie i. 372, 383 Lynde v. Judd i. 145, ii. 353 Lynden v. Blythe i. 184 Lyne, Ex parte ii. 822 Lynn v. Risberg ii. 716 Lyon V. Chalker ii. 124, 127 V. Clai-k i. 843, 854 v. Lyman ii. 599, 604, 606 V. Richmond ii. 699 V. Sandford li. 63 Lyons v. Gregory ii. 351, 352 Lyson v. Blossom ii. 414 Lyster v. Lyster i. 692 M. Macarty v. Bond's Adm'r ii. 686, 946 Macclesfield's Case ii. 929 Macferson v. Tlioytes , ii. 611, 614 Machir v. M'Dowell ii. 698 Mackaboy v. Conimonwealth i. 142, 161, 162, ii. 267 Mackay v. Bloodgood ii. 457 Mackee v. Cairnes ii. 1S8 Mackenzie v. Hudson ii. 868 V. Mackenzie ii. 706 Macker's Heirs v. Thomas ii. 997 Mackcy v. Brownfield ii. 650 MacLeod v. Walcely i. 442, 603 Maolin v. Wilson ii. 830 Macnally's Case ii. 389 Macomber v. Parker ii. 732 Macon v. Cook ii. 129 v. Crump i. 866 Maoreth v. Marlar i. 693 (Sir R.) Ex parte i. 701 U'Adams v. Stilwell i. 390, 391, 393 Maddison v. Andrew ii. 702 V. Nuttall i. 337, 528 Maddook v. Bond i. 702 Maddox v. Maddox i. 133 Magill V. Hinsdale ii. 691 Y. Kau£fman i. 394, 395, 488 TABLE OF CASES CITED. clxiii Magill V. Lyman ii. 1001 Magne v. Seymour ii. 268 Magniac v. Thompson . . , ii. 1000 Magow'a Case ' i. 603 Magratli v. Muskerry i. 698 Magruder v. Peter ii. 472 Maguaria v. Paterson ii. 32, 44 Mahoney v. Asliton i. 114, ii. 42 Mahurin v. Bickford ii. 189, 411, 422 Maigley v. Haucr ii. 656, 658 Main v. Newsou ii. 815 Maingay v. Galian ii. 74, 107, 129 Mainwaring v. Giles i. 659 Major V. Deer i. 127, 129 Makepeace v. Bancroft ii. 756 Malcolm v. Ray ii. 808, 831 Male V. Roberts ii. 430 Maley v. Shattuck ii. 173 Malin v. Malin i. 462, 713, ii. 701 M'AUister v. Marshall. . . . , i. 609 V. Montgomery ii. 703 V. Reab i. 375, 379, 603 M'AUister's Lessee v. WiUiams ii. 874 Mallory v. Aspiuwall ii. 663 V. 'WUlis ii. 787 Malone's Case ii. 942 Malone v. Georgia i. 564, 565 V. Malone i. 699 V. Stephens ii. 58S V The Mary ; ii. 286 Maloney v. Gibbons ii. 199 Malpica v. M'Kown ii. 429 Mandeville v. Ferry ii. 1003 V. Welch i. 482 Mandsley v. Le Blank i. 108 Manhattan Co. v. Ledyard i. 867 V. Lydig i. 447, 461, 509 V. Osgood i. 502 Mankin v. Chandler ii. 62, 171 Mann v. Eclcford ii. 684, 686 V. Giyens ii, 6 V. Mann ii. 639, 702, 749, 752 V. Pearson. . .' ii. 783 V. Swan i. 120 Manning v. Norwood i. 456 V. Smith 1. 656 V. Wheatland i. 122 Ex parte ii. 836 Mannup v. Beekman Ins. Co ii. 632, 790 Manny v. Harris ii. 22, 46 Mansel v. Price ii. 752 Maples V. Wightman i. 822 Marbury v. Madison i. 164, ii. 929, 939 Marchand v. Gracie ii. 81 Marcy v. Stone i. 201 Marine Ins. Co. v. Hodgson .ii. 108, 798 V. Tonng ii. 1001 Mariner v. Sannders ii 553 Markham v. Gonaston ii. 483 v. Middleton ii. 120 Markley v. Amos ii. 406 Marks v. Barker i. 322 V. Maniott ii. 23, 404 V. Pell i. 681, ii. 649 V. Robinson ii. 694 Marley v. Rogers i. 319 Marquand y. Webb ii. ] 001 Marriott v. itampton ii. 29, 31, 116 V. Shaw ii. 150 Marsack v. Reeves i. 694 Marsden v. Goble i. 650 Y. Stansfield i. 5, 42, 812 Marsh v. Bulteel ii. 406 V. Buttesly ii. 406 Y. Gold i. 430 V. Hague i. 684 Y. Hydfe ii. 680 Y. Jones i. 390, 400 V. Lawrence i. 604 V. Pier ii. 37, 47, 115, 124, 126 V. Rulifeon iL 1006 Y. Smith i. 49 Marshall v. Craig i. 696 V. Currie ii. 783 V. Haney i. 578, ii. 552 V. Lester ii. 148 V. Lewis i. 605 V. Riley ii. 937 V. Sheridan i. 411 v. Union Ins. Co ii. 399 Marston v. Downes i. 131, ii. 898 Marteudale v. Follet ii. 483, 616 Martens y. Adcock ii. 135 Martin v. Ballon ii. 639 Y. Bigelow i. 655 V. Commonwealth ii. 606 V. Curtis i. 325 V. Dwelly i. 823 V. England ii. 152 V. Guuby ii. 282, 297 V. Hawks i. 481 Y. Heathcote i. 700 Y. Hitchcock ii. 403 Y. Haffroth i. 498 V. Kanouse i. 855 Y. Marshall u, 140, 146, 152 V. Marshall & Key ii. 146 V. Martin's Heirs i. 589, ii. 63, 126 V. MaYcrick i. 740 Y. Mayo ii. 674 Y. Moss ii. 145 V. Mott ii. 161 V. NichoUs ii. 184 Y. Reeves i. 198, 320, 327 v. Rodger ii. 366 v. Root i. 407, 437, 440, 499 V. Simpson i. 196 Y. Taylor ii. 144, 614 v. Thornton ii. 22 V. Walton ii. 277 V. Williams ii. 402 Martz V. Hartley ii. 301 Marvin v. Keeler i. 741, ii. 975 V. Richmond i. 431 v. Stone ii. 753 Mary Lace's Case ii. 795 Maryland v. Ridgley i. 191, 291 v. Wavman ii. 352, 564 Ins. Co. V. Wood ii. 176 and Phcenix Ins. Co. v. Bath- urst ii. 173 Mason v. Chambers i. 697, 698 V.Hill i. 610, 654 V. Tallman i. 553 v. Wash , ii. 429 Mason's Devisees v. Peter's Adm'rs. . .ii. 14, 64 Massey v. Leaming -. ii. 706 Masteu v. Masten ii. 98 Master's Lessee v. Shute ii. 301 Masterman v. Judson i. 871 cxliv TABLE OF CASES CITED. Masters v. Masters ii. 133 V. Varner i. 3)1 Mather v. Clark i. 522 v. Goddard i. 589, ii. 512 V. Hood i. 405, ii. 142, 161 V. Phelps = . .i. 508, 509 V. Trinity Church i. 660 Mathews v. Dragaud i. 692 V. Haigh ii. 318 V. Mathews ii. 104 Matilda v. Crenshaw ii. 112 Matson y. Trower ii. 413 Matthewson v. Moore ii. 369 Mattock V. White ii. 456 Mattocks V. Owen i. 316, ii. 613, 931 Matton V. Nesbit i. 149 Mattox V. Helm ii. 112 Maugham v. Hubbard ii. 504, 918, 922 M'Auley v. Earnhart ii. 853 Maupin v. Compton ii. Maurau v. Lamb i. 30, 482, ii. 938, 939 Mauri v. Heffeman ii. 516, 532, 595 Maury v. Cooper i. 604 Maus' Lessee v. Montgomery i. 121, ii. 1009 Maxwell v. Carlisle ii. 588 V. Chapman ii. 268 V. Hardy ii. 915 V. Harrison i. 201, 332 V. Light ii. 583, 583 V. Martin i. 811 V. Montacute ii. 649 V. Montague ii. 19 V. Ward i. 698 Ex parte . . . .' i. 101 May V. Babcock i. 516, ii. 121 V. Gilbert i. 659 V. Harding ii. Ill V. HiU ii. 554 V. Jones i. 191 V. May ii. 515 Maybank v. Brooks ii. 153 Maybee v. Avery ii. 1, 10, 48 Maybin v. Virgin ii. 156 Mayelston v. Palmerston i. 868 Mayer v. Foulkrod ii. 126 Mayfleld v. Comeau ii. 106 V. Seawell ii. 100 Mayhew v. Tliatcher.ii. 136, 181, 192, 198, 421 Maynard v. Maynard ii. 660, 661, 662 V. Thompson i. 405, ii. 392, 395 Mayo V. Gray ii. 816 Mayo's Heirs v. Chiles ii. ll-l Mayor v. Humphreys i. 826 V. Bultee i; 166 &o. V. Franklin , i, 221 V. Knowler ii. 142 v. Russell ii. 106 V. Wright i. 43 Mayrant v. Guignard i. 83 Maysville v. Shutz i. 43 Maze V. Miller i. 41 6 M'Brido v. Hagan ii. 402, 401 T. Tliompson i. 201 M'Bride's Ex'x v. Watts . .i. 312, 311, 384, 431 M'Call V. Boatwright ii. 360 V. Sybert ii. 301 M'Cally's Lessee v. Franklin ii. 534 McCandless V. Rook ii. 219 MdCann v. Beach ii. 850 M'Oania's Case il. -019 M'Cants V.Bee i. 692, 693 M'CarroU v. Weaks ii. 158, 414 M'Carty v. Carmell i- 641 V. DeCaix ii. 119 T. Marsh i. 581, ii. 40, 339 V. Patten's Ex'rs ii. 860, 868 V. Sherman ii. 393, 443 V. State i 113 M'Caulay v. Thorpe ii. 865, 866 M'Cay V. Hugus : ii. 753 M'Clay's Lessee v. Work i. 440 M-Clean v. Hertog ii. 525, 539 M'Clelland v. Quarles ii. 616 M'Clemens v. Graham ii. 301 M'Clenachan v. Scott i. 32 et al. V. M'Carty L 186, ii. 198 M'Clenahan v. Chambers. .' ii. 112 M'Cluny v. Lookhart i. 603 M'CluEg V. Ross i. 822, ii. 389 M'Clure v. Bennett ii 691 V. Hill i. 650, 660, 661 M'Combs V. Dunbar ii 80 V. Wright i 641, 642 M'Conhay v. The Centre, &e. Turnp. Co.ii 532, 554, 560 M'Connell v. Bowdry's Heirs, .i 118, 465, 661, ii 61, 370, 411 V. Brown. ii. 460, 469, 470, 496, 513, 583, 588, 662 V. M'Coy i 621 v. Pike i 100 McCoou V. Smith i. 522 M'Corkle v. Binns ii. 502, 503, 614 M'Cormick v. Baruum i 511, 512 V. Ganett ii 192 V. Gibson i. 102 V. Miller ii 363 V. M-Murtrie ii. 301 T. Smith i 483 V. SuUivant ii. 86, 89, 105 M'Coy V. Curtice i 218, 593 V. Hyde ii. 148 M'Coy's Lessee v. Galloway i 226 M'Crain's Ex'rs, &c. v. Clark i. 283 M'Crea v. Purmont ii. 656, 651 M'Creary v. M'Creary ii 611, 684 M'Credy v. Schuylkill Nav. Co ii. 511, 532 M'Creedy v. Freedly i. 491 M'Culloch Y. Girard ii. G69, 610 v. State of Mai-yland ii. 213 M'CuUock V. McKee i. 515 V. Myres ii. 583, 688 M'Cullough V. Montgomery i 520, 684 V. Young ii. IS, 88 M'CuUum V. Coxe i. 1S2 V. Gourlay ii. 6S4, 685 M'Cully V. Burr i, m, 192 M'Curdy v. Breathitt ii. 100 M'Curtio V. Stevens ii. C52 Jl'Cutohon V. Keith i 4S3 M-Daniol's Will j. 32 ll'Dermott v. U. S. Ins. Co ii 404, 645, 149 M'Diarmid v. M'Diarmid i. 693 M'DiU V. M'Dill ■ ii. 4B6, 457^ 537 M'Donald v. Edgerton i. 633 V. Fisher ii. 1003 V. Hobby ii. 2I6 V. Rainor ii. 33 M'DonaM's Adm'rs v. Pickett ii. 134 M'Dougal V. Fleming li. 1001 TABLE OJ CASES CITED. cxlv M'Dougal T. Furrier i. 665 M'Dowall V. Beckley ii. 666 V. Halfpenny i. 684, ii. 705 M'Dowel V. Charles i. 702 M'Dowell T. Hall ii. 740 V. Lemajtro i. 448 V. M'Cullough i. 677, 682 M'Dowell's Case ii. 942 Mead v. Golyer ii. 694 V. Lansing ii. 699 T. Steger.ii. 656, 657, 666, 669, 686, 690 Meade v. M'Dowell i. 308, 501, 509 R. M. V. R. R. K ii. 844 Meads v. Lansing ii. 645, 698, 699 Meagoe v. Simmous ii. 904, 922 Mealor v. Kimble i. 692 Means v. Brickell ii. 672, 673, 687 V. Osgood r .ii. 376 Mechanics' Bank v. Bank of Columbia . .ii. 691, 733 Mechanics 4; Farm. Bank v. Smith, .i. 447, 461, 509, 510, ii. 904 Mede v. Earl of Bandon i. 679 Medlicott v. O'Donel. .i. 685, 687, 690, 091, 694 Meek's Heirs v. Ealy's Heirs i. 685 Meeker v. Jackson i. 32, ii. 518 T. Van Rensselaer ij. 155, 390 Meeus v. Thelluson ii. 185, 194, 199 Meghan v. Mills. . . , i. 481 Mehelm r. Barnet ii. 668 Meigs V. Dimock i. 685 Melancon's Heirs v. Duhamel ii. 130, 155 Melchart v. Halsey ii. 33 Melen v. Andrews i. 437, 438, 440 Meller v. Lees i. 681 Mellor V. Baddeley ii. 30, 55, 135 Melville's (Ld.) Case ii. 9.'i8 Melvin v. Whiting i. 662, ii. 44 M'Elwee v. Sutton il 951, 975 Mendenhall v. Smith ii. 405 Mendum v. Commonwealth i. 395, 736 Menendez v. Larionda's Syndics i. 323 Meuzies v. Breadalbane i. 653 Mercer v. Blair ii. 649 V. Sayre i. 804, ii. 860 V. "VVisa i 458 Merchants' Bank v. Spicer . . . .' i. 603 M. Ins. Co. V. Wilson ii. 789 Mer. Safety Ins. Co v. Hone ii. 787 Meredith v. Hinsdale ii. 456, 457 V. Hodges i. 459 V. Kennedy i. 508, 511, 612 V. Shewell U. 368, 371 Meredith's Lessee v. Macoss- i. 515 Merle v. Moore i. 135 Merriam v. Haflford & N". H. R. R. Co. . .i. 98 Merrill v. Berkshire ii. 907 v. Emery ; i. 609 V. Ithaca, &c., Railroad Co.. .ii. 288, 504, 577, 694 T. Prince ii. 148 V. Sawyer i. 403, 405 Merrills v. Law i. 731, ii. 883 Merritt v. Brinkerh'off . . . i i. 655 T. Parker i. 654 . T. Bead ii. 103 Mersey, &c., Nav. Co. v. Douglass i. 857 Mesaerve v. Hicks ii. 390 Messinger v. Hagenbuch : ii. 578 V. Kintor ii. 20, 80, 83 Motoalf V. Harvey Ii 334 v. Van Benthuysen i. 334 - Metcalfe et al. v. Conner i. 493 Methodist Church of Cincinnati v. Wood..i. 35, ii. 70 Episo. Church v. Jaques et al. .ii. 663, 701, 93'? Metzgar v. Metzgar i. 482 Metzner v. Bolton . . ' i. 836 Metzer, Matter of ii. 137 M'Ewen v. Gibba i. 32 Meyer v. Sefton ii. 514 Mezzara's Case i. 193 M'Padden v. Geddis ii. 83 v. Gill ii. 139 V. Haj'ley i. 854 V. Kingsbury ii. 297, 513, 545 V. Maxwell i. 120 M'Fail's Case ii. 813 M'Failand v. Commissioners, &c 1. 43 V. Shaw , i. 286 M'Parlane v. Grilfith i. 483 V. Moore ii. 666, 673 M'Perran v. Powers i. 124, ii. 506 V. Taylor ii. 698 M'Gaunten v. Wilber i. 696 M'Gee v. Deniphan ii. 511 U'Gennis v. Allison ii. 476,* 495 M'Gowen v. Hay ii. 366 V. Lovenarth .\ i. 71 M'Gralh ads. Isaacs ii. 619 M'Gregor v. East India Co i. 689 V. Hall 4 ii. 588 M'Guinty v. Horrick ii. 153, 388 M'Guire v. Kouns ii. 475 V. M'Gowen ii. 701 M'Guire's Case ii. 604 Miami Exportation Co. v. U. S. Bank . . .ii. 649 Michaels v. Shaw ii. 898 Micbam v. Wyatt ii, 4 Michil v. Mullen's Lessee ii. 473, 475 Miokels V. Haskins .■ ii. 373 Midberry v, Collins ii. 1002 Middleborough v. Rochester ; . . .ii. 75 Middlebury College v. Cheney ii. 588 Middlesex Bank v. Butman i. 464 Middleton v. Frost i. 40, 43 v. Ileyward ii. 730, 732 T. Manueaptors of Sylvester . .ii. 379 T. Mass ii 476 V. Melton i. 307, 351 V. Perry ii. 783 V. Price , .ii. 366 V. Shelly i. 683 Bank v. Jerome i. 119 Middletown Savings Bank v. Bates. . . .i. 35, 44 Mifllin V. Bingham i. 101, 384, ii. 210, 874 Milan (Overseers of) v. Dutchess ii. 108 Miles V. Dawson ii. 898 V. Ervin i. 693 V. O'Hara .i. 390, 393, 396, 397, 398, 399 Miles' Case i. T06, 711 Milfax V. Baker i. 6i 9 MiUbrd v. Bellingham i. 1 89 (Inhab.),v. Worcester (luhab.) . .ii. 353, 279 Milk V. Christie ii. 633 Millar v. Thompson i. 604 MiUer V. Bagwell ii. 575, 657, 658 T. Bear i. 698 Vol. I. 10a Qxlvi TABLE OP C^SES CITED. Miller v Brinkerhoff ii. 104 V. Covert ii. 25 V. Drake i. 696 T. Hackley ii. 549 V. Henshaw ii. 586, 588 v. Holt ii. 583, 587, 588 V. Hovver ii. 100 V. Jolmson i. 803 V. Maither ii. 323 V. Manice ii. 47 V. Mariner's Church i. 102 V. M'Clenahan i. 33 T. Miller. . . .i. 442, 497, 827, ii. 190, 197 V. People ii. 143 T. Race i. 825 V. The Resolution i. 599, 646, 812 T. Russell i. 395 T. South Carolina Ins. Co i. 610 V. Starks i. 4, 30 T. Travers ii. 722, 723, 756, 774 V. AVebb ii. 518 V. Weeks- i. 143 V. Williamson i. 83 V. Yable ii. 70 Miller's B.state ii. 501, 504, 663 Heirs v. M'Intyre i. 687, 690, 691 Millick V. Peterson . : i. 477, 512 MiUigan & Welchman's Case. .i. 543, 546, 553, 555 Milligan's Lessee v. Dickson. ii. 585, 586, 5?8, 873 Milling V. Crankfleld ii. 645 Millinson v. Howell ii. 687 Millman v. Tucker ii. 945, 948 Mills V. Brownell i. 378 V. Comstock i. 608 V. Duryee. .ii. 97, ls7, 189, 191, 339, 427 T. Griswold i. 138 V. Hall i. 658 V. Martin i. 822, ii. 20, 105, 145, 151 V. Oddy i. 131, 133, 196, ii. 897 V. Pierce i. 747 T. St. John i. 378 V. Twist '. ii. 495, 496 V. United States Bank ii. 728, 788 V. Wyman i. 477 Mills' Case ii. 942 Heirs V. Bodley i. 687, 690 Milne v. Cunimings ii. 576 Milner v. Milner ii. 638 Milnor y. Tillotson i. 568, ii. 560 Milsom V. Day ii. 807 Milton V. Ellmore i. 869 Milward V. Thanet i. 697, 698 Mima Queen v. Hepburn i. 173, 231, 253 Mimms v. Sturdevaiit i. 412 Mims V. Mims . : i. 679, ii. 69 V. Whiddon ii. 674 Miner v. Clark ii. 526 Minklaer v. Rockfeller i. 604 Minnis v. Eohols ii. 210 Minor v. Erving's Bx'r i. 378 V. Tillotson ii. 563 V. Walter ii. 18, 31, 118 M'Instry v. Tanner i. 693 M'Inlire's Heirs v. Funk's Heirs. . .ii. 542, 554, 916 H'lntosh V. Ward ii. 586, 588 M'Intyro v. Commonwealth i. 541 V. Oliver i. 491 V. Fatten i. 467 Mitoliell V. Allen ii. 114 V. Bush ii. 405, 409 V. Clarke i- 378 V. Dall i- 510 V. De Graffenreid .i. 747 V. Georgia Banking Co ii. 633 V. Hawley "• 166 V. Hinman ii. 876, 963, 976, 978 V. Johnson ii. 490, 507 V. Kingman ii. 687 V. Lipe ii- 375 V. Maupin i. 178, 473, 676, ii. 574 V. Mitchell, .ii. 517, 563, 583, 588, 594 V. Mitchell's Lessee ii. 640 r. Csgood ii. 188 V. Owings '.' 668 V. Preston ii. 674, 683 . V. Roulstone i. 404, 497 V. Staveley iL 403 V. Walker i. 656, 657, 662 V. Wright i. 805 Mitchum v. State i. 184, 287 M-Iver's Lessee v. Walker ii. 739, 783 Mix V. Brisban ii. 869 Mixei«v. Reed ii. 714 M'Kane's Ex'r v. Bonner i. '326, 327, ii. 908 M'Kay v. Mar. Ins. Co ii. 861, 864 V. Treadwell i. 517 M'Kee v. Myers' Ex'r i. 572, u. 471, 604 V. Nelson i. 735 V. Reiff ii. 512 M'Keen v. Delancy's Lessee. . .ii. 583, 586, 588 V. Gammon i. 432 M'Kellar v. Bowell ii. 7, 8 M'Kellip V. M'ilhenny ii. 520 M'Kelrye v. Gilleland ii. 301 M'Kenna's Case i. 535 il'Kennan y. Henderson ii. 666 M'Kenney v. Dingley i. 751, 773 M'Kensey v. Gaylord ii. 599 M'lvenzie v. Ramsay ii. 1 37 M'Keon v. Lane ii. 334 M'Kenas v. Gardner ii. 118 M'Kewn ads. Barksdale i. 378 M'Kie V. Reynolds ii. 881 M'Kim V. Odom ii. 427 M'Kin V. Somers ii. 981 M'Kinley v. Rob i. 864 M'Kinney v. Crawford ii. 19, 28, 116 V. Leacock ii. 510, 512 V. N"eweomb ii. 405 V. Rboades ii. 6B2 M'Kiustry v. Pearsall i. 476, 477, ii. 656 McKniglit V. Dunlap ii. 1012 V. Lewis i. 364 V. Wheeler .• i. 119 M'Laughlin v. Hill .ii. 110, 121, 124 M'Laurhi v, Talbot. . . > ii. 517, 533 M'Lean v. Hugaren ii. 117, 388, 396 V. StMe. . .i. 289, 297, 298, 779, ii. 887 M'Lellan v. Cox i. 202, 492, 500 V. Longfellow i. 144 V. Richardson i. 133 M'Leod V. Jolinston i. 740 M'Malian v. M'Grady i. 587, ii. 468, 533 M'Mahou T. Spangler ii. 251, 698, 699, 700, • 988 M'Managil v. Ross ■ i. 4 M'Meohen v. M'Laughlin'a Ex'rs ii. 86T M'Meen v. Owen ii. 667 TABLE 01 OASES CITED. ■ cxlvii MMcken v. Beaucharap 1. 607 V. Brown i. 735 T. Fair i. 104 V. Millaudon ii. 108 M'Millin T. M'Millin i. 639 M'Mullen v. Brown, .ii. 516, 561, 569; 584, 588 T. Weuner i. 457 M'Murtry v. Campbell i. 746 V. Frank ii. 460, 471 M'Nair v. Commonwealth ii. 602, 615 v. ailbert .i. 806, ii. 566 V. Ragland i, 689 M'Namara v. -Gibbs i. 172 M'Neil V. Bright ii. 28 V. Magee i. 698, ii. 68 V. Philip i. 456 et al. V. Coleman i. 810 M'Neill V. Elam i. 349, 350 M'Niel V. M'Clintock i. 32, ii. 518 M'Niel's Case ii. 821 M'Nief's Case i. 106, 712, 740, ii. 942 Mobley v. Hemmet ii. 956 Moehring r. Mitchell i. 642 Moffat V. 'Witherspoon i. 525 Mohawk Bank v. Atwater i. 700 Moliere v. Pennsylvania Ins. Co ii. 699 Molineux v. Molineux ii. 741 Monahan v. Colgin ii. 700 Moncure v. Hanson i. 465 Monell V. Colden ii. 672 V. Lawrence i. 476 Monk V Butler , . .i. 605 Monroe v. Culver i. 414 V. Douglass i. 624, ii. 192, 328 V. M'Micken ; . .ii. 108 Montague v. Smith ii. 404 Montefiori v. Montefiori ii. 685 Montford v. Hunt ii. 61 Montgomery v. Clarke ii. 79 V. Dorian ii. 588 V. Montgomery ii. 91 County Bank v. Marsh i. 67 Montgomery's Lessee v. Dickey . .i. 223, ii. 211 V. Snodgrass i. 391 Montressor v. Rice i. 104 Monumoi v. Rogers i. 665, ii. 296 Moody v. Baker i. 177 V. Fulmer i. 81 V. Goode i. 87 T. RoweU -ii. 604, 608, 613, 892 v. Thurston ii. 29, 183 V. Towle i. 483 Moody's Lessee v. Tan Dyke . . . .i. 692, ii. 650 Mooers v. White i. 483, 502, ii. 79 Moons V. Bernales ii. 76 Moor V. Ames ii. 129 V. Foley ii. 803 V. Risdell ii. 337 Moore v. Andrews i. 386 V. Bickham's Lessee .ii. 483, 583 T. Blake i. 698 V. Cable i. 679 T. Collins ii. 588 V. Commonwealth ii. 541, 606 V. Edwards' Ex'rs ii: 698 V. Farrow 11. 585, 588 V. Hitchcock i. 442, 463 V. Houston. ii. 149, 512 V. Jackson ex d. Erwin . . .i. 670, ii. 639 V. Janner's Adm'r ii. 76 Moore v. Kay ii. 683 T. Miller ii. 734 V. Rawson .' i. 649, 651 V. Sheredine ii. 873 V. Smith i. 438, ii. 52, 448 V. Sparkman ii. 186, 198 V. Tanner's Adm'r ii. 76, 83, 86, 89 V. Terrell i. 132 v. Tracey i. 127 V. Viele ii. 904 V. Watts ii. 27 Moore's Lessee v. Vance ii. 588 Moorehouse v. Matthews i. 778 Moran v. Dawes ii. 1007 Moravia v. Sloper i. 822, ii. 141, 152 More v: White i. 688 Moredell v. Marshall of K B ii. 825 Morehead v. State i. 537 Moren v. Killibrew ii. 188, 195, 197, 198 Morewood v. Wood i. 244 Morford v. Mastin i. 696 Morgan v. Bealle ii. 583, 588 v. Bennett .ii. 390 V. Bliss ii. 33 V. Boone i. 745, 747 V. Curtis 1. 659 V. Dyer i. 822 V. Edvifards i. 858 V. Frees ii. 953, 962, 970 V. Livingston ii. 124 V. Morgan ii. 474 V. Plumb ii. 109 Morgan's Heirs v. Patton ii. 61 Case i. 17, ii. 611 Morisey v. Bunting i. 412 Moritz V. Brough i. 317 Maroney v. O'Dea i. 691 Morrell v. Biokey i. 699 V. Dickey ii. 86 V. Dixfleld i. 202 Morris v. Briggs i. 385 V. Bulkley ii. 1002 T. Corson i. 747 V. Creel •. ii. 830 V. Dabigny i. 49 V. Davis i. 630 T. Duane i. 189 v. Edwards ii. 299, 667, 698 V. Flora i. 32 V. Port i. 868 V. Hurst i. 409 V. Lessee of Harmer's Heirs.i. 170, ii. 299, 301 V. Miller ii. 279 V. Morriss i. 462, ii. 698 T- Pugli ii. 378 v. Wadsworth ii. sgo Morris' Lessee v.Vanderen.i. 179, 315, 411. 667, ii. 301, 352, 574, 576, 587 Morrison ads. Barksdale ii. 800 V. Duane 1.189 T. Leonard ii. 883 V. M'Millian i. 605 Morrison's Adm'r v. Beokwith i. 457, 483 Motse V. Coyle ii. 212 V. Farrow ii. 583 V. James et al i. 822, ii. 144, 152 V. Royal i. 692, 693 V. Shattuck i. 477, ii. 656 Morton v. Beall's Adm'r ii. 873, 875 cxlviii TABLE OF CASES CITED. Morton v. Chandler ii. 687 V. Le G-rand ii. 674 V. Morton , L 482 V. Rogers ii. 674 Morton's Adm'r v. Smith i. 175, 350 Moscati V. Lawson i. 127 Moseley v. Armstrong ii. 12, 73 V. Davies i. 223 T. Garrett i. 685 V. Hartford ii. 675 Moser v. Libenguth ii. 645, 650, 699, 700 Moses V. M'Farlan ii. 18. Mosley v. Massey ii. 765 Moss Y. Livingston ii. 692 Mossey v. Mead ii. 696 Mostyn v. Pabrigas ii. 433 Moth V. Atwood i. 691 Mothland v. Wireman ii. 86, 87 Mott V. Dorrell i. 126, 129, ii. 674 T. Doughty ii. 505 T. Kip i. 513, 521 V. Petrie i. 853 Motz V. Bolard ii. 301 Moulton V. Moulton i. 127 Mount V. Bogert i. 428 T. Larkins ii. 813 Mowatt V. Howland ii. 277 Mowry v. Schroeder ii. 525, 553 Moyes v. Brumeaux i. 448, ii. 975 Moyle T. Roberts i. 677 M'Peake v. Hutchinson i. 319, 407 M'Pherson v. Cunliff. . .ii. 19, 62, 65, 74, 79, 84 V. Eathbone.i. 200, 388, ii. 460, 4S9, 493, 499, 501 M'Queen v. Farqnliar i. 610 M'Eae v. Ins. Bank Columbus i. 432 V. Mattoon ii. 188, 201, 433 M'Reynolds v. M'Cord ii. 554 M'Tavish v. Denning i. 143, 159 M'Teer'a Adm'r v. Shephard ii. 686 Mudd V. Beauchamp ii. 424 Muggah V. Greig ii. 510 Mulcahy v. Kennedy i. 687 Mulder v. Cravat ii. 405 Mulheran's Ex'ra v. Gillespie ii. 705 Mulliner v. Wilkes i. 743 Mumford v. Armstrong ii. 372 V. Bowne ii. 513, 545 T. Church. ii. 825, 848 V. Hallelt ii. 731, 793 v. M'Pherson if. 667, 672 Mundell's Lessee v. Clerklee i. 671 Mundell v. Hugh ii. 7 83 Mundine v. Crenshaw ii. 724 Munford v. Overseers ii. 4, 8 Munn V. Godbold ii. 568 Munns v. Dupont i. 179, 865, ii. 661 Munro v. Allaire i. 692, 693, ii. 23, 402, 404 V. Chemant i. 455 V. Gardnor i. 605 Munroe v. Cooper i. 811 T. Perkins ii. 692. 693 V. Stutta i^ 202 Munson v. Hegemen i. 44 Murati v. Luciani ,. . .ii. 614 Murdook v. Hunter ii. 605, 506 V. Phillips' Academy ii. 146 Marietta v. Wolfehaven ii. 603 Murle's Ca.se ii. 896 Murphy v. Guion's Ex'ra Ii, 361 Murphy v. Hagarman ii. 608 . V. Hubert i. 201, 518 V. Kipp i. 802 V. Trigg ii. 649, 683 Murphy'.s Case iL 111 Murray v. Bethune i. 185 V. Bossier , i. 745 V. Columbia Ins. Co ii. 724 V. Coster i. 407, 429, 689, ii. 71 V. Genl. M. Ins. Co i. 71 V. Gregory i. 422 V. Hatch ii. 79U V. Judah ii. 1000 V. Oliver i. 201, 332 V. Palmer i. 694 v. Smith ii. 1012 V. The Ins. Co ii. 848 V. Toland i. 439, 700 Murray's Case i. 635 Murrell v. Johnson's Adm'r i. 851, ii. 27 V. Smith ii. 149 Muae v. Donelson .i. 491 Musgrove v. Gibbs i. 851 Mutohinson v. Allcock ii. 611 Mutloe V. Smith i. 695 Mutrie v. Harris i. 675 M'Vicar v. Wolcott ii. 108 M'Williams v. Martin ii. 645 V.Smith i. 842 V. Willis i. 867 Myer v. Barker ii. 566 V. M'Lean i. 733 Myers v. Baker i. 462 V. Brownell i. 658 V. Palmer i. 121 V. Skrine i. 683, 684 V. Toscan ii. 614 Mylno V. Geatrix iL 406 Mynn v. Johffe i. 132 Myrick v. Bishop i. 646 K Naha v. Garlin i. 747 Nallo's Reps. v. Fenwick i. 666, ii. 473 Nancanon v. Weatherebee ii. 473 Santz V. Bailey ii. 5S6, 5SS V. M'Pherson ii. 73 Nase V. Peck i. 665 Nash V. Gilkeson i. 753 V. Van Swearingen ii. 938 Nashville Bank v. Bennett ii. 548 Nason v. Dillingham i. 593 V. Thatcher i. 29, 42 T. Whitney ii. MS Navigation Co. v. N. Orleans ii. 93S Naylor v. Moody ■ ii, SG V. Semmes ii. 369, 938, 939 V. Wench ii. 699 NeaRo's Case i. 136, 145 Neal V. M'Comb ii. 4, 14, 64 V. Shields ii. 405 Neale v. Isaacs ii. 261 V. The Overseers ii. 149 Neathway v. Ham ii. 753 Neave v. Jenkins i. 745 Noave's Estate, Case of ii, 707 Negro John Davis v. Wood i. 173, 24D Neil V. Cheves ii. 696 TABLE OF OASES CITED. cxlix Neil V. TUlman ii. 694 JTeilson v. Columbian Ins. Co ii. 976 V. Mott ii. 258 ' Neimoemicz v. Gahn i. 611 Neliua V. Briclcoll ii. 490, 492 ', Nelson v. Bliglit i. 609 , V. CarringtoQ i. 695, 697 : V. Dubois i. 869 1 V. Eyaus ii. 48, 133 1 V. Iverson i. 188 j \ . Oldfield i. 316, 317 I V. State ii. 887 \ V. The United States ii. 845 V. "Wliittal ii. 507 Nereide (The) ii. 976 Netherwood v. Wilkinson ii. 830 Nettles V. Harrison i. 175, 495, ii. 900 Neville v. Bobinson ii. 82 V. Wilkinson ii. 685 Newbold v. Lamb i. 610, ii. 456 Newburg v. Biokerstaffe i. 690 Newburgh v. Newburgh ii. 765 (Lady's) Case ii. 638, 752 ; Newbury v. Bulkley ii. 651 ! Newcastle (Duke of) t. Broxtowe ...... .i. 220 ; V. Cleyton i. 682 i Newoomb v. Bonham i. 680 \ V. Drummond ii. 352 Newcomb's Lessee v. Smith ii. 472 Newdigate v. Davy ii. 20 Newell V. Newton ii. 187, 198 V. Sammons i. 74 V. Simpkin ii. 313 V. Wright ■ i. 712, 731 New England Bank v. Lewis ii. 33 Mar. Ins. Comp. v. Chandler ii. 650, 686 V. De Wolf I i. 515, ii. 691' Newhal v. Wadhams ii. 953 Newham v. Eaithby i. 256, 264 New Haven Bank v. Mitchell ii. 917 Newland v. Douglass i. 166, ii. 24 V. White i. 599 Newman v. Bennett i. 749 V. Bradley L 418 T. Chapman ii. 471 V. Jenkins i. 641, ii. 76 v. Macken i. 467 V. Newman i. 677 V. Otte L 793 V. Rogers i. 698 Newport v. Cooper iL 127, 256 Newsom v. A dams ii. 4V,3 V. Bufferlow ii. 700 V. Luster ii. 493 V. Lycan ii. 62 1 V, Pryor's Lessee ii. 783 Newsom's Adm'r v. Douglass i. 348 Newton v. Aysoough i. 699 V. Bronson .ii. 680 , V. Harris ii. 905, 953, 970 V. Higgins i. 377, 378, ii. 860 V. Lucas _ ii. 722 V. Newell ii. 198 V. Pope i. 712 V. Preston ii. 702 v. Verbeke i. 804 New York Annual Conference v. Clarkson u. 638 New Tork C. E. E. Co. v. Marvin ii. 102 & Erie R. R. Co. v. Cook i. 68 Eirem. Ins. Co. t. Bennet et al . i. 606, 811 V. DeWolf. ..ii. 173 691 T. SturgeB i. 606 v. Walden. . . .i. 4 Gas Light Co. v. Mech. F. Ins. Co il 666 Ins. Co. V. Thomas ii. 798 Life Ins. k Trust Co. v. Beebe i. 616 Nichol V. Ridley ii. 360, 374, 377 Nicholas v. Lansdalo i. 263 NichoUs V. Downs i. 461 v. Hodges ii. 79 v. Webb i. 348, 349, 350 Nichols V. Alaop i. 461, ii. 502 V. Artman i. 126 V. Fletcher i. 816 V. Goldsmith. . .i. 349, 350, 712, ii. 548 V. Holgate i. 104 V. Hotchkiss i. 126, 321, 322 V. Johnson ii. 482, 483 V. Osborn ii. 752 V. Parker i. 219 V. Walker ii. 140, 143, 145 Nicholson v. Hilliard ii. 520, 521, 525, 562 T. May i. 128 V. Withers. . .i. 375, 384, ii. 920, 923 Nicholson's Lessee v. Mifflin i. 515 Nioklin V. Morrow ii. 813 Niooll V. Mumford i. 609, ii. 88 Niles V. Braokett i. 100 Nixon V. Mayoh i. 133 V. Palmer ii. 251, 825 Noble V. Martin i. 395 V. Smith ii. 824 Noel V. Bewley i. 67 1 V. Dickey ii. 956, 958 Nokes V. Shaw i. 857 Noland v. State i. 109 Norberg'a Case ii. 872 Norfleet v. Southall ii. 404 Norman v. Morrell ii. 733 V. Wells ii. 590, 607 Norris v. Badger i. 740, 806 V. Beach ii. 821, 822 V. Le Neve i. 690, 693 North V. Drayton i. 678, ii. 617, 575 Northam v. Latouche ii. 261 Northampton Bank v. Allen ii. 673 V.Ward ii. 131 V. Whiting ii. 649 Northrop v. Jackson ii. 512 V. Speary , ii. 657, 669 Northumberland (Duke of) v. Eggremont i. 695 (Earl of) v. Granby i. 695 Norton v. Cook ii. 164 V. Ladd i. 16 V. Lewis i. 841 V. Norton i. 464 V. People i. 647 V. Pettibone i. 318, 321 V. Relly i. 693 V. Sanders i. 36 V. Savage ii. 413 V. Turville i. 686 cl TABLE OF CASES CITED. Norton v. Warner i. '7BS r. WeUs ii. 667 T. Woods i. 33, 34, 108, ii. 119 Norton's Adm'r v. Smitli i. 405 Norvell v. Camm ii. 1010 Norwood v. Green ii. 532, 568, 588 Norwood's Lessee v. Owings ii. 867 Nott V. Douming ii. 277 Nouaille v. Greenwood i. 671 NoUrse v. Gregory ii. 69. 70 V. M'Cay i. 349 Novelli V. Rossi ii. 185 Nowlan v. Nelligan ii. 723 Noye V. Bead L 609 Noyes v. Butler i. 136 V. Evans i. 117 V. "Ward ' i. 186, 201 Ntteva Anna Sc Liebre (The) ii. 195 Nuldred v. Gilman ii. 663 Numlin V. Westlake i. 483 iJTunnery v. Cotton i. 607 Nurse v. Bond ii. 70 Nussear v. Arnold i. 484, 758 Nye V. Otis i. 827 0. Calces T. Hill ii. 254, 298 Oakley v. Aspinwall i. 29, 46 V. Morton ii. 633 Gates V. Jackson ii. 722 Obert V. Whithead i. 848 Obichini v. Bligh ii. 176 O'Brien v. Davis i. 126 Ocean Ins. Co. v. Francis. ii. 171, 173, 175, 176, 177, 429 O'Connell V. Seybert ii. 393 Odam V. Beard ii. 668, 669 O'Dee V. M'Crate i. 684 Odiorne v. Bacon ii. 916 V. CoUey i. 646 V. Wade i. 651 V. Winofcley ii. 903 Oechs T. Cork i. 793, 794 Oehler v. Walker i. 686 Offley V. Offiey i. 683 Offutt's Adm'r v. Oifutt ii. 109 Ogden V. Miller's Ex'r i. 380 V. Payne il 860, 861, 865, 867 V. Peters i. 184, 186 Ogle V. Peleslde i. 393 O'Hara v. Hall ii. 645, 648, 667 Ohio Ins. Co. V. Emondson ii. 1003 Oldham v. Slater ii. 762 V. Woods i. 697, ii. 311 Olding V. Smith i. 516 Olds V. Commonwealth ii. 865 Olin V. Chipman i. 863 Oliphant v. Taggert ii. 507 Oliver t. Court i. 691 V. Gray i. 408 V. Giiin i. 624 Olmstead v. Stewart ii. 612 Olmsted v. Hoyt ii. 109 Omerod v. Hardman i. 696 Omichnnd v. Bai-ker i. 17 Oneale v. Lodge i. 477 O'Neil V. Morris i. 698 Onondaga M. Ins. Co. v. Minard ii. 997 Ontario Bk. v. Hallett ii. 373 Orange v. Springfield i. 43 Co. Bk. V. Wakeman ii. 372 Orby V. Trigg ..i. 696 Orcutt V. Orms ii- 115 Ord V. Heraing i. 681 V. Smith i. 680, 681 Ordinary v. McClure ii. 85 T. Robinson ii. 133 Ordoneax v. Prady ii. 1002 Ordronaux v. Chegaray ii. 85 Orlabar v. Harrison ii. 686 Orme v. Young ii. 692 Ormond v. Hutchinson i. 692 Ormsby's Ex'rs v. Bakewell i. 34 Orne v. Townsend ii. 286 Orr's Case i. 712, u. 948 Osborn t. Bell i. 390, 392, 393 V. Danvers (Inhabitants of) ii. 142 Osborne v. Bremar i. 698 V. Moss ii. 95, 686 v. Wise iL 721, 755 Osgood V. Manhattan Co i. 496, 502, 677, ii. 14, 64 Osterhout v. Roberts ii. 28, 53 V. Shoemaker i. 79, ii. 266 Otis V. Sell i. 465 Otsego Co. Bk. r. Warren ii. 800, 805 Ottinger v. Ottinger i. 390, 392, 395 Ougton V. Seppings i. 646 Ouierloney v. Powis i. 682 Outlaw V. Hendle ii. 6] 6, 912 Outram v. Morewood ii. 388 Outwater v. Neilson ii. 709, 787 Overstreet v. Bate i. 686 Overseers of Berlin v. Norwich ii. 150, 658 Germantown v. Overseers of Livingston i. 176, 197 Milan v. Sup'rs of Dutchess ii. 106, 108 Orange v. Overseers of Spring- field i. 42 Overton v. Tracy ii. 734 Owen V. Adams ii. 578 V. Bartholomew i. 812, ii. 756, 804 V. Jones ii. 514 V. O'Reily ii. 913 V. Simpson ii. 376 V. Touikes i. 692 Owens V. CoUinson ii. 81 V. Dawson ii. 67 V. Starr ii. 863, 866, 867 Owens' Case ii. 687 Owings V. Beall ii. 90, 453 V. Emery i. 29 V. Grubb's Adm'r ii. 660, 691 V. Henderson i. 33, 373, ii. 920 V. Hull ii. 125, 429, 453 V. Ives ii. 474 V. Law ii. 583 V. Norwood ii. 476, 483 V. Owings ii. 701, 705 V. Patterson i. 810 V. Speed ii. 296 V. Wyant i. 584 ot al V. Low i. 743 Owlsey V. Woolhofter i. 516 Ovifners, &c. v. Mayor, &c. of Albany, ii. 102, 145 Oxenden v. Palmer i. 43 Oystead v. Shod ii. 154, 366 TABLE OP CASES CITED. cli p. Pack V. Mayor, &o., of New York i. 61 Packard v. HUl ii. 344, 416, 418, 430, 433, 825, 848 V. Richardson i. 123 Packer's Lessee v. Gonsalus i. 322, ii. 980 Paoy V. Knollis ii. 161 Page V. Cagwin I 305, 332, 343 V. Gliuck i. 829 V. Dennison '.i. 254 T. Leaplrigvvell ii. 152 V. Lennox ii. 177 V. Mann ii. 507 T. Page 1. 34, ii. 518, 562 V. Woods i. 864 Paige's Case ii. 344, 345 Paine t. Benton ii. 960 v. Cutler ii. 674 v. French ii. 588 V. M'Intyre ii. 645 V. Packard ii. 692 T. Wilson i. 869 Paleihorp v. Furnish i. 513 Palfrey's Syndic v. Francois i. 177 Palister v. Little u. 368, 369 Palmer v. Fogg ii. 850 V. Green i. 384, ii. 669 V. Guernsey i. 675 V. Hamilton i. 698 V. Hicks i. 669 V. Jackson i. 681 V. Manning i. 591 v. MiUigan i. 655 V. Palmer. ii. 79 V. Van Doren i. 34 V. Whettenhall i. 702 Palmer's Bx'r v. Dubois' Adm'r i. 678 Pancoast's Lessee v. Addison i. 174, 263 Panton v. Holland i. 842 Parcels v. Gohegan ii. 700 Pardee v. Robertson ii. 363 Pargoud v. Morgan ii. 510 Park V. Cochran i. 32, ii. 51-8, 588 V. Halsey ii. 401, 412 V. Hopkins i. 187, ii. 112, 134 Parker v. Ash i. 684 V. Bodley ii. 702 V. Carter i. 138, 140 V. Cortelyou ii. 8] 1 V. Elkins ii. 108 V. Farr ii. 210 V. Fassit ii. 505 V. Hanson i. 122 v.Lovejoy i. ) 22 V. Marston i. 332 V. Merrill i. 491 V. M'WUliams ii. 886 V. Parmele i. 696, ii. 684 v. Patten ii. 366 T. Philips i. 695 T. Sedwiok ii. 212 V. Standish ii. 45 v. Thompson ii. 21, 22 V. Tan Rensselaer ii. 473 T. Walrod ii. 363 y. Way i. 87 v. Yates i. 133, 145, ii. 815 Parker's Lessee v. Gonsalus i. 391 Parkes v. White i. 693 Parkhurst v. Lowten ii. 932, 93T V. McGraw i. 143 V. Van Courtlandt ii. 666, 741 Parkins v. Cobbet ii. 562 Parkist v. Alexander i. 692 Parks V. Jackson i. 67 1 V. Jackson ex d. Hendriok ii. 62 T. The Gen. Interest Assurance Co. ii. 739, 756 Parmelee v. Hitchcock ii. 363 Parmeter v. Attorney-General i. 694 Parratt v. Thatcher ii. 733 Parry v. Almond ii. 930 V. May ii. 815 Parsons v. Aldrich ii. 402, 405 v. Bridgham ii. 892 T. Cain i. 786 V. De Forest i. 497 V. Hosmer ii. 700 V. Huff ii. 850 V. Miller ii. 731, 803 V. Parsons ii. 758, 773 T. Pearoe i. 44 Partheriche v. Mason i. 609 Partridge v. Coates i. 851, 855 Passmore's Heirs v. Moore i. 696 Pastal V. Wards ii. 14 Pasteur v. Parker i. 511 Pastorius v, Fisher i. 655 Patch V. Hoyt i. 49 Patchin V. Astor Mar. Ins. Cc.ii. 905, 959, 969 V. Pierce ii. 647, 649, 657 Paton T. Lent ii. 540, 545 Patrick V. Hallctt .ii. 1009 V. Ludlow ii. 1009 Patridge, Ex parte ii. 323 Patterson Bank v. Butler ii. 548 Y. Aokerson ii. 65'3 V. Bloss ii. 510 V. Brown i. 689, 701 V.Cobb i 29 V. Evans ii. 814 V. Maryland Ids. Co i. 350, ii. 211, 238, 260 V. Mayfield's Ex'rs ii. 201 V. Patterson i. 741 v. Tucker ii. 503, 504 ' V.Winn ii. 302, 518, 560 Patteshall v. Turford i. 704 Patteson v. Leavitt ii. 404 Pattison v. Hull ii. 668, 698, 700 Patton V. Brown ii. 588 v. Caldwell ii. 8 V. Erwin's Lessee ii. 868 V. Freeman et al.. .i. 351, 495, 537, 548, 586, 588 T. Goldsborough i. 319, 322, 407 V. Halsted i. 100 V. Miller ii. 337, 343 Patton's Adm'r v. Ash et al i. 676 V. Craig's Adm'rs i. 349 Paul y. Meelc ii. 544 V. Van Kirk ii. 154 V. White ii. 875 Paull V. Lewis ii. 728, 733 V. Mackey ii. 356 Pawlet v. Delaval i. 695 Pawling V. Bird's Ex'r ii. 96, 180, 198, 338 T. The United States ii. 1009 Paxton r. Cobb ii. 95 clii TABLE OF CASES CITED. Paxton V. Popham ii. 684 V. Stickles i. 521 Paxton'e Ijesse9 v.'Price i. 251 Payne v. Dudley i. 682 v. Eden ii. 674 V. Hathaway i. 685, 690, 702 V. Ladue .ii. 674 V. Rogers i. 480 V. Trezevant i. 126, 129, ii. 674 Paynes v. Coles ii. 4, 7, 6.3 Payton's Lessee v. Dixon i. 462 Peabpdy v. Denton ii. 566 V. Peters i. 332 Peace v. Pearson ii. 812 Pcacocli V. Bell . . .' i. 822, ii. 196 V. Glascocls ii. 704 V. Rhodes i. 811 Pearee v. Atwood ii. 144, 149, 151 V. Hooper ii. 486 V. Jenkins i. 300, 304 V. Ifewlyn i . .i. 695 V. Whale ii. 592 Pearl v. Allen ii. 273, 341, 460, 468 V. Howard ii. 587, 588 V. M'Dowell -. ii. 266 v. Wells ii. 117 Pearsoll v. Dwight ii. 273, 430 Pearson v. Belchier i. 700 V. lies ii. 810 V. Pearson ii. 673 V. Pulley i. 679 V. Wightman i. 586, ii. 503 V. Wright ii; 919 Peas V. Morgan i. 867 Pease v. Howard ii. 396 l^easlee v. Stanifoid ii. 132 Peay t. Picket ii. 616, 560, 588 Peck V. Botsford i. 442, 483 V. Farrington ii. 302, 443 V. Gale ii. 258, 344 T. Hubbard ii. 192 V. Jones i. 378 V. Wilson ii. 402 V. Woodbridge ii. 28. 65, 95 Pecker v. Hoyt i. 411 Peckham v. Potter i. 328 . Peddioord v. Hill i. 460, 474, 476, ii. 687 Pedley V. Wellesley i. 80 Peebles v. Porter i. 745 V. Reading ii. 650 Pegg V. Walford ii. 873 Pegrdm v. Isabel i. 174, 392, 395, 397, 402, ii. 125 Peisch V. Dickson ii. 724, 727 V. Ware ii. 405 Pejepsout Propri. v. Ransom i. 666 Pelham v. Piokersgill i. 660 Pelleoat v. Angel ii. 684 I'elletreau v. Jac.kson ii. 493, 494, 499 V. Mooro ii. 1007 V. Eathbone i. 689 Pelzor T. Cranston i. 372, 379 Pemberton v. Bellington i. 805 Pender v. Pobes ii. 067 Pendleton v. Bank of Kentucky i. 308 V. Button ii. 374, BS3, 585 V. Commonwealth ii, 654, 565 Peney v. Cilliland ii. 394, 397, 443 Penfield v. Carpenter i. 4, 405 V. Cook L 35 Penn v. Meeks ii. 149, 164, 360 Pennell v. Hinman i. 465 Penn's Lessee v. Hartman ii. 301 v. Ingham ii. 301 T. Ingraham ii. 846 Pennimap v. Barremore ' . . . ii. 6 60, 716 V. Patchin ii. 408 Pennington v. Scott ii. 867 Penuock v. Dialogue ii. 1004 Pennsylvania v. Bell i. 5, 844 T. Haldeman ii. 614 V. Huffman ii 111 V. Leach i. 47 T. MTall i. 5 T. M'Kee ii. 614 v. Myers i. 634, 636, 638 V. Stoops i. 88, 288, 289, 637 Penny v. Corwithe .■ . .ii. 483 V. Martin ii. 108 Penrose V. Griffith i. 473, ii. 574 V. King i. 677, 678 Pentieost v. Lee ii. 782 Peutland v. Somers i. 668 Pentz V. Stanton ii. 691 V. Winterbottom i. 426, 571 Penwarden v. Ching i. 649 People T. Allen ii. 149 V. Anderson i. 290 T. Anthony i. 833 V. Badger ii. 607 V. Badgley i. 537 V. Barrett ii. 110, 111 V. Bill i. 85 V. Bleeoker et al i. 773 V. Bodine ; ii. 1004 V. Bradford '. i. 601 V. Breese i. 621, 625 V. Brigham ii. 871 V. Broad ii. 87 1 V. Brooks i. 672 V. Brush i. 786 V. Bryan i. 602 V. Buckland ii. 48, 56, 127 V. Burke i. 891 V, Bush ii. 871 V. Call ii. 56 V. Casborous ii. m T. Christie ii. 943 V. Chrystal ii. 219, 230 V. Cochrane i. 601, 602 V. Colbern i. go V. Collins i, 593 V. Colt i. 831 V. Cook ii, 261 V. Cooper ii. 15.1, V. Costello i. 665 V. C. P. of New York ii. 814. 860 V. Croucher jj. 904 V. Cunningham ii. 993 V. Cutting ii. 135 V. Wavis i. 565, 604 V. Den-'ott ii. ggs V. Denton ;;. jjl V. Dowelle .j;. gsg V, Dunning i;. 155 V.Ellis ii. Ill V. Etz i. 114 V. Ferguson i. 5 V.Ferris ".".".ii.' gog V. Footo ii. 871 TABLE OF CASES CITED. cllii People V. V. V. T. V. T. V. T. V. V. V. T. V. V. V. V. V. V. ■ T. V. V. V. T. V. V. Fiazier i. 736 PultOQ Fire Ina. Co i. 256, 259 Gardner i. 599, 601, 891 Gay ii. 939, 953 Genung i. 375, 736, ii. 904, 1005 Gilbert i. 605 Gilchrist i. 615 Goodwin Ii. Ill Green i. 183, 288, ii. Grunzig i. 289 Haynes i. 432, 830, 844 Hendrickson i. 562, ii. 242 Hennesy i. 537 Herkimer ii. 273, 1006 Herrick i. 23, ii. 349, 946, 957 Hettiok ii. 871, 980 Hewitt ii. 604 Hicks • ii. 840 Holbrook ii. 525, 541, 997 Holmes i. 747 How i. 710, 773 Howell ii. 673 Humphrey i. 96, 452, 542, ii. 279 Irving. . ." i. 30, ii. 939 James i. 24 Jameson ii. 692 Johnson i. 536, 538 Jordine i. 404, 538 Judges ofSr. Y ii. 110, 111 Judges of Washington ii. 1006 Judges of Westchester ii. 1006 Justices of Chenango ii. 105 Kelly ii. 870 Kceber ii. 137 Lee ii. 871 Leonard i. 646, 647 Lynch i. 567 Manhattan Co i. 603 Mason i. 299 Mather '. . .ii. 878, 888, 889, 932 ■ Matteson i. 16, ii. 952 Maxwell , i. 536 M'CoUister i. 647 Mead i. 602 M'Garren i. 18, ii. 56 M'Gee i. 5, 10 M'Henry ii. 508 Miller i. 8, ii. 137 M'Leod i. 633 M'Mahon i. 432, ii. 242 M'Murray ii. 904 M'Mair i. 11 Monroe i. 805 Moore ii. 229, 236 Newman i, 390 Niagara C. P ii. 673 Oleott ii. Ill Overseers of Ontario i. 87 Parish i. 118, 205, ii. 998 Pease i. 24 Peck ii. 288, 290 Pentz ii. 904 Pierpont i. 752 Pollyou ii. 305 Powers i. 581, ii. 252 Preston i, 638 Quackenbosa i. 601 Quoteau i. 834 Rankin ii. 651 Rathbun iL 998 People V. Reeder ii. 9*2 V. Restel ii. 221, 227 V. Rickert }• '41 V. Robertson i. 551 V. Robetaille ii- 871 T. Rowland i. 571, ii. 493, 498 V.Ryder i- 854 V. Safford ii- 982 T. Scott i. 404, 405, 406, 539 V. Slater i- 8*5 V. Smith i. 536, 710 V. Spooner ii. 604, 620 V. Superior Court of K T. .i. 714, ii. 860 V. Supervisors of Columbia i. 701 V. Teal i. 601 V. Teft ii. 832 V. Thayers i- 562 V. Throop ii. 313 T. TUton i.,fi35 ». Turrell i- 638 V. Vanef. i. 763, ii. 980, 988, 1000 V. Van Nostrand i. 647 V. Van Wyck ii. 807, 81 9 V. Vermilyea ii. 807, 860, 861,, 863, 864, 871 T.Ward i- 637 v. Watts ii. 975, 976, 978 V. Weeks i- 538, 539 V. Wendell i- 113 V. Whigham ii. 916 V. Whipple i. 23, 106, 547, 565 V. Wiley i. 845 T. Willey ii. 952 V. Williams i 112, 565, 574 V. Witness ii. 809 T. Wynehamer ii. 998 ex rel. Ordronaux v. Chegaray. . .i. 89 ex rel. Van Valkenbergh v. Record- er of Albany ii. 137 Pepoon V, Clarjie i.4H3 V. Jenkins ii. 187, 421 Peppin v. Solomons i. 836 Percival v. Jones ii. 144, 153 Perigal V. Nicholson ii. 874 Perine v. Van Note i. 214 Perkin v. Proctor ii. 143, 144, 151, 160 Perkins v. Bumford ii. 674 V. Burnet i. 508, 509 V. Catlin ii. 670 V. Fairfield ii. 28, 80 V. Kent i. 682 V. Parker i. 482, ii. 186 V. Williams '. .ii. 86 V. Wing ii. 404, 405 Pernam v. Weed ii. 783 Perrie v. Williams i. 404 Perillat V. Fuesch i. 177 V. Peuoh ii. 109 V. Tiffany ii. 862, 863 Perrin v. Broadwell ii; 660 Perrine v. Cheeseman ii. 455, 666, 672, 696 Perring v. Tucker i. 440, ii. 884 Perron v. Maillan ii. 588 Perry v. Aaron i. 838, 850 V. Botsfbrd et al i. 811, 817, 855 V. Gebroau i. 462 V. Gibson ii. 896 V. Head ii. ''01 V. Marston i. 681 ii. 983 cliv TABLE OF OASES ■CITED. Perry v. Smith i. 327, ii. 9T5 V. Walker. . '. i. 854 Ferryman v. Steggal ii. 875 Persons v. Jones ii. 4 Peru Iron Co., Ex parte i. 606 Pery v. White i. 611 Petapsco Ins. Co. v. Southgate ii. 845 Peter v, Bealls ii. 873 V. Cocke i. 866 V. Hancock i. 134 Peters t. Anderson ii. 123 V. Newkirk ii. 405 V. Pierce ii. 4 02 Peter's Lessee v. Condron ii. 460, 587 Peterson v. Willing i. 123 Petit V. Beshler ii. 588 V. M'Adam ii. 460 Petman v. Bridger i. 659 Petrie v. Christy ii. 672, 674 V. Woodworth ^ i. 460 Pettibone v. Derringer ii. 845, 846 Pettigru V. Sanders ii. 514 Pettingal v. Brown i. 59 Pettiward v. Prescott i. 690, 695 Pettes V. Gale ii. 767 Pew V. Lividais ii. 679 Peytavin v. Winter ii. 108 Peyton v. Gov. of St. Thomas' Hospital, .i. 516 V. Hallet ii. 545 V. Stith i. 690, ii. 112 Phealing v. Kenderdine ii. 929 Phelan's Case ii. 883 Phelps V. Decker ii. 685 V. Foot i. 188 v. Hartwell i. 484, 498, 810, 819 V. HoUcer ii. 192, 198, 338 v. Prew i. 146 T. Kiley i. 868, ii. 938, 939 T. Sage i. 671 Phenix V. Baldwin ii. 212 V. Ingraham's Assignees, .i. 322, ii. 73 T. Prindle i. 375, 378, 379 Philadelphia Bank v. Craft ii. 155 V. Officer. i. 348, 351, ii. 297 Philadelphia, Wilmington and Baltimore Eail Eoad Co. v. Howard. . .1. 390, 391, 392, ii. 390 Philips V. Biron ii. 151, 6 Phillips V. Berrick ii. 21, 24, 25, 120 V. Berryman ii. 115 V. Crammond ii. 701 T. Davios i. 858 V. Flint ii. 2G0,'588, 593 V. Ford i. 442, 812 V. Hall i. 456 V. Hunter ii. 83 V. Hyde ii. 369 V. Keener ii. 667 V. Lyons ii. 416 V. Moseley et al i. 733 V. Paget i. 699, 700 T. Ruble ii. 586, 588 V. Thompson i. 175, 470, ii. 69 et al. V. Rose i. 855 PhiUips' Ex'r v. Morrison's Ex'r i. 682 Lessee v. Robertson i. 605 Phillipson v. Chase ii. 548 Philpott V. Dobbinson i. 829 Phinney v. Barle ii. 118, 119, 388 Phipard v. Mansfield i. 611 Phoebe Y. Dignum u- 287 Pbcenix Ins. Co. v. Gurnee ii. 700 v. Walden i. 868 Pickard v. BaUey i. 778, 779, ii. 185, 347, 416, 553 T. Collins ii. 893, 900, 927, 962 Pickering t. Meyers ii. 525, 529, 539, 543 v. Noyes ii- ^^7 V. Stamford i. 684, 699 Pickett V. Clairbone "• 21 V. Loggon i. 690, 694 Picquet v. M'Kay ii- 59 V. Swan ii. 76, 86, 197 Pidge V. Tyler ii. 583 Pierce v. Chase .■ i- 100 V. Hindsall '. . .i. 126 V. Kimball ii. 340 V. Myrick i- 768 V. Pickens i- 856 V. Thomson !?■ ^ ^^ Pierpont v. Shapland ii- 881 Pierson v. Baird i. 621 V. Catliu ii- 69 T. Hooker ii. 654 Pigeau et al. v. Commeau i- 870 Pigot V. Davis ii. 109, 375 Pigot's Case .ii. 483 Pigott V. HoUoway i. 610, ii. 503, 504 Pike V. Crouch i. 397 V. Dyke i. 407, 410 V. Hayes i. 79, 246, 301 V. Street ii. 670 V. Warren i. 491 Pilie V. MoUere i. 868 Pillon V. Bushnell i. 77 Pineke v. Curteis i. 696 Pinkham v. Gean i. 645 Pinney v. Gleason ii. 9 V. Pinney ii. 77 Pinson v. Ivey ii. 761 Pintard v. Tackington ii. 566 Pipher v. Lodge i. 685, 686, 742 Pitkin V. Brainerd ii. 798 Pitts V. Temple ii. 296 Plank Road Co. v. Bruce ii. 914 Plant V. M'Ewin i. 482, 743 Planter's Bank v. George ii. 938 V. Lanusse i. 323 Plat's Case ii. 143 Platner v. Best ii. 24 Piatt v. Johnson i. 655 V. Sherry ii. 268 V. Smith ii. 402 T. Storer ii. 34 V. Walworth ii. 870 Plattekill v. New Paltz i. 66 Plaxton V. Dare i. 219, 307 Pleasants v. Clements ii. 1,S, 6 ', 66 V. State. . .ii. 887, 911, 929, 939, 961 T. Pemberton i. 123, ii. 667 E\- parte ii. 79 Plique V. Labranche ii. 501, 597, 614 Plumer v. Smith ii. 673 Plummer v. Dovet ii. 366 V. Lane i. 126 V. Woodburn ii, 185 Plumstod's Lessee v. Rudebagh i. 515 Plunket T. Bowman ii. 507 Plunket's Case 1. 598, 635 Poague v. AUen i. 688 TABLE OF CASES CITED. clv Poague V. Richardson i. '733 Pocock V. Billing _ i. 328 Pococke V. Lee i. 611 Pogue V. Shotwell. .• ii. 108 Poignard v. Smith ii. 518, 566, 567 Poindexter v. Davis ii. 937 Poindexter's Ex'rs v. Barker ii. 421, 432 Pointet V. Basingstoke ii. 314 _ Pole V. Somers (Lord) ii. 705 ' Police Jury y. Haw ii. 688 Polk's Lessee v. Robertson i. 442, 462, 463 PoUard v. Bell •. ii. 175 V. Dwight ii. 511 Pollock's Lessee v. Gillespie i. 100 Pomeroy v. Wiuship i. 679, ii. 656 Pomfret v. 'Windsor i. 683, 686 Pomroy v. Preston ii. 1006 Pond V. Negus ii. 149 V. Sage i. 43 Ponsonby v. Debaillon i. 188, 190, 192, 215 Pool V. Bridges i. 186, 189, 197 V. Brooks ii. 201 V. M'CuUum ii. 398 V. Symond i. 647 " Poole V. Cabanes i. 701 V. Richardson i. 129 Pooler T. Maples ii. 849 Pooly V. Longuevill i. 828 Poorman v. Crane ii. 186, 201, 351 V. Smith's Ex'r ii. 1000 Pooser V. Tyler ii. 645 Pope V. BaiTet ^ i. 848 V. Bush i. 102 V. Lemaster i. 698 V. St. Leger ii. 684 Popham V. Desmond i. 682 V. Eyre i. 698 Porter v. Cole ii. 9 V. Cooper ii. 348 V. Ferguson i. 186 V. Harris ii. 1006 V. Hundred of Regland i. 35 V. Liddle i. 737 V. Lutlier i. 218 V. Pillsbury ii. 212, 214 V. Rose i. 696 V. Stewart i. 696 V. Taloott -. i. 84t; V. Warner i. 221, 222 V. 'Wilaon ii. 553 Porter's Adra'rs v. Kenut i. 440, 748 Portmore v. Goring ii. 326 Portsmouth Liv. Co. v. Watson ii. 273 Posson V. Brown ii. 393, 395 Postmaster Gen. U. S. v. Norvelle ii. 662 Poston V. Kubank i. 685 Potter V. Barclay i. 589 V. Hopkins ii. 653, 670 V. Hyndman ii. 474 v. State ii. 887 V. Thompson i. 854 V. Titcomb i. 604, 677 T. Webb : ii. 81 V. Yale College ii. 686 Potts V. Ward ii. 406 Poultney y. Fairhaven i. 89 V. Ross i. 379 Povall, Ex parte ii. 418, 421, 454 Powell V. Biddle ii. 773 V. Clark ; . . .ii. 785 Powell T. Ford ii. 598 V. Godsale i. 676 V. Hankey i. 683 V. Hodgetts i. 493 V. Horton ii. 726 V. Milbank i. 605, 651, 660 V. Milburn i. 660 V. Monson, &c. Man. Co ii. 701 V. Waters i. 120, 391, 393, 394, 395 Power V. Butcher i. 806 V.Kent 1. 137 Powers V. M'Ferran ii. 1001 T. People (The) ii. 137, 144, 148 V. Russell ii. 660, 662, 663, 754 Frail V. Peel's Curator ii. 128 Prandt ex dem. VauCortlandt v. Klein. .1. 30 Prather v. Johnson i. 303 Pratt V. Carroll i. 698 V. Hackett ii. 404 V. Jaek^gn ii. 721 V. Malcolm ii. 1002 V. Northam ii. 81, 85, 88, 118 V. Sladden ii. 707 V. Weymau i. 700 Pray v. Pierce i. 747 Prentice v. Achorn ii. 687 Prescott V. Hutchinson . .' i. 747 v. Pettee ii. 375 V. Phillipps i. 654, 659 President &c. v. Gofi' ii. 19 y. Hamlin ii. 355 of Bucks and Dauphin Turn- pike Co. V. Myers, .ii. 457, 503 Prest V. Meroereau i. 379 Preston v. Boston ii 164 V. Christmas ii. 693 V. Dayton ii. 548 V. Harvey ii. 39 Preston's Heirs v. Bowmar ii. 783, 785 Prevost V. Gratz i. 685, 687, 690, 693 V. Simeon i. 734 Prewett v. Marsh 1. 33 Prewitt v. Kenton ii. 8 v. Tilly i. 42 Price V. Boultby ii. 332 V.Boyd ii. 28, 62, 108* V. Branch Bank of Decatur i. 332 V. Byrn i. 693 y. Copner i. 680, 681 y. Edmonds ii. 692 V. Gregory i. 30 v. Harwood i. 459 V. Higgins ii. 198 y. Justrobe i. 675, ii. 860, 868 v. Marsh i. 516 V. Page ii. 762 y. PoweU i. 186, 778 V. Price i. 702 V. State ii. 805 y. ToiTington i. 350 V. Warren ii. 862 y. Wood ii. 492 Matter of ii. 827 Price's Ex'r v. Fuqua's Ex'r i. 676 Prigg V. Adams ii- 130 Prime v. Stebbins ii- '704 Matter of ii. 137, 156 Primm v. Stewart i. 250, 641 Prince v. Heylin i. 684, 688 y. Smith i. 377, 379, 381, 383, 384 clvi TABLE OF CASES CITED. Prince v. Swett i. 383 V. Thomas ii. 154 Prindle v. Glover i. 741 Pring V. Pearoy i. 609 Pringle v. M'Clenaehan i. 387 Pritohard v. Brown i. 477, 656, 657, 701 Y. Hicks ii. 761 V. M'Owen i 378 V. Scott ii, 548 V. Symonds ii. 522 Proctor V. Covvper i. 681 V. Newliall ii. 83 V. Gates i. 679, 681 Proffit V. Williams ii. 1001 Proprietary's Lessee v. Ralsioii i. 404 Propri. of Braintree v. Battles ii. 516, 560 Kenn. Pur. v. Call i. 746, ii. 342 Providence Hat Manufacturing Co. ads. Emerson ii. 691 Previa v. Eeed i. .S17, ii. 978 Psyche v. Paradol ii. 81 Pugh's Heirs v. BelFs Heirs. i. 686, 690, ii. 701 Pugsley V. Anderson ii. 259 Pukard v. Bliss ii. 154 Pullen V. Rianhard ii. 407 Puller, V. Puller ii. 724, 755, 762 Pullman v. Conning. % ii. 633 Punderson v. Shaw i. 376, 379 Punshon's Case ii. 384 Purcell V. M'Namara i. 694 Purdon v. Linton's Bxr's ii. 648 Purdy V. Delavan ii. 404 V. People ii. 341 Purrington v. Loring ii. 366, 372, 375 Purvis V. Robinson ii. 688 Pusey V. Desbouverie i. 695 Putnam v. Churchill i. 122 v. Hall ii. 376 V. Lewis i. 475 V. Mann ii. 368, 372, 374 V. Shelop ii. 119 V. Tillotson i. 232 Pyle V. Beokwith i.' 691, 702 V. Moulding i. 89 Pytt T Griffilh ii. 496 V. Moore ii. 496 .Quarles' Adm'r v. Littlepage i. 433 Quay V. Eagle Eire Ins. Co ii. 978 Queen v. Avorey : i. 150 V. Farley i. 151 V. Hawkins i. 152 V. Hayward i. 160 V. Inhabitants of North i. 360 V. Matthews ii. 150 V. Soley i. 845 V. State ii. 987, 988 V. Tilney et al i. 161 Queiy V. Brindlinger i. 840 Querry v. White ii. 653 Quesnel v. Woodiof ii. 698 Quick V. Johnson ' i. 418 Quigley v. Fuilong i. 866, 867 Quin V. Astor i. 805 V. Reynolds ii. 403 Quin's Case i. 769, 770 Quince's Adm'rs v. Rosa' Adm'rs i. 678 E. Raborg's Adm'x v. Hammond's Adm'r . .i. 264, ii. 79, 83, 89, 158, 163 Rabun t. Shortridge ii- H'' Raohfield v. Careless ii- '53 RadcUfifv. Ship ii- 8 436 Radclifle v. Pemberton ii- 693 V. United Ins. Co. . .ii. 173, 275, 431, • Ragan v. Cargill ii- 212, 214 v. Kennedy ij- 361 Raggett V. Musgrave i- 447 Raikes v. Richards i- '42 Raines v. Phillips ii- 492 v. Towgood ii- 930 Rakestraw v. Brewer i. 679 Ralston v. Miller i. 222 Rambler v. Tryon i. 316 Ramsbottom v. Cooper ii. 332 v. Tunbridge .). 577 Ramsbottom's Case ii. 462 Ramsey v. Johnson i>. 512 Ramsey's Appeal ii. 135, 155 Rand v. Rand i- 869 Randall v. Errington i. 692, 693, 684 V. PhilKps ii. 666, 686, 703 V. Randall .ii. 402 V. Rich i. 806 V. Van Vechtcn ii. 691 Randall's Case ii. 164 Eandel v. CJies. & Del. Canal Co. . .i. 35, ii. 538 Randolph v?Perry ii. 696 Randolph's Ex'r v. Handolph's Ex'rs i. 700 Rank v. Shevvey ii. 512 Rankin v. American Ins. Co.. .ii. 729, 731, 798 V. BlackweU i. 606, 607, 751 T. Bradford i. 685, 691 v. Cooper ii. 210 V. Hudson iu 514 V. Maxwell's Heirs ii. 67 Ranny v. Church i. 35 Ranson v. Keyes i. 474, ii. 575 Rapelje v. Emery ii. 187 Rapp V. Le Blanc ii. 984 Rappelye v. Prince ii. 4 Ratcliffe v. Allison ii. 698, 699 V. Bishop ii. 402 T. Bleasby ii. 326 V. Wales i. 78 Rathhun v. Emigh i. 374 V. Martin s ii. 145 Ravee v. Farmer ii. 23, 412 Rawdon v. Shadwell ii. 682 Rawle V. Skipwith ii. 867 Rawlings v. Commonwealth i. 749 V. Hall ii. 929, 930 Rawlins v. Timberlake i. 483 Rawson v. Adams i, 508, 509, 511 V. Turner ii. 53 Hawstorne v. Beutley i. 698 V. Parr li. 699 Ray V. Bush i. 390 V. Mariner ii. 875 V. State i, 106 Raymond v. Howlimd ii. 126 V. Johnson .1. 481 V. Roberts .ii. 653 V. Selliok ii. 612 V. Smith ii. 661 TABLE OF CASES CITED. clvii Raymond v. Squire i. V. Wheeler i. Rayner v. Pearaall i. 684, Raynliam v. Canton. . . .i. 251, ii. 428, 431, Kea V. Gibbons ii. V. M'Eacliroii ii. Reab v. M'AUiotcr ii. 117, 670, Read v. Barlow i. 378, V. Duncan ii. V. Goodyear i. 656, V. Smith i. Reade v. Reade i. 683, 688, Reading v. Price ii. V. Weston i. 197, ii. 648, 649, 683, Rearden v. Searcy's Heirs i. Reay v. Richardson ii. Redden v. Spruanoe i. 186, Redding's Leasee v. M'Cubbin 1. Redford's Adm'r v. Peggy ii. 597, 598, Redhead v. Cator ii. Redington v. Redington i. 608, ii. Redman v. The State i. Redwood v. Riddick i. 685, 686, ii. Reed v. Bullock . . '. i. T. Chambers ii. V. Clarke ii. V. Davis ii. T. Diclsey i. 318, V. Gillett i. 593, ii. v. Hooper ii. V. Jewett ii. r. M'Grew ii. 694, v. People i V. Price i. V. Pruyn ii. V. Reed i. V. Rocap i. '432, T. Ross ii. 187, V. Schenck ii. 784, V. Wilmot ii. V. Wood ii. 66G, Reader v. Barr ii. Reeks v. Pcstlethwaite i. 679, Reels V. Knight i. Reel's Ex'r v. Reel ii 3ir,, Eeea v. Berrington ii. V. Bowen ii. V. Lawless, .i. 315, ii. 63, 67, 72, 517, T. Lloyd i. V. Overbaugh i. 872, ii. V. Rogers i. V. Smith i. 817, ii. Reeves v. Burton i. 131, V. Middleton i. V. Reeves ii. 701, .V. Towles ii. Regan v. Kennedy ii. Regina V. Bird i. 390, V. Beeston ii. 216, V. Carnage i. V. Greenwood i. V. Mears i. V. Murray i. V. Perkins i. V. Sherman i 537, 538, ii. Reichart -v. Beidleman ii. 650, Reid V. Borland ii. V. Colcock ii. 288, V. Coleman ii. 481 747; 699' 432 404; 84, 6731 384! 667! 666' 144 690 150 658, 740 677 670 384 222 613 691 702 89 701 690 681 698 366 322 397 343 660 695 718 670 674 186 508 474 785 140 667 475 681 741- 317 Ii92 381 532 667 843 818 914 142 441 752 474 53 400 230 890 113 206 630 11 243 963 76 520 325 Eeid T. Gilford i. G64 V. Reid ii. 653 Reigart v. Khler ii. 574, V. EUmalctr i. 189 Rcigne v. Dewees i. 786 Eoitenbaeh v. Reitenbach i, 494, 741 Relph.v. Gist ii. 455 Relyea v. Eamsay ii. 148, 405, 406 Rembert v. Brown i. 344 Remmio v. Hall i. 406, 539 Remon v. Hayward ii. 733 Reiialds v. Smith i. 870 Renn v. Contributors, &c ii. 1000 Renner v. Bank of Columbia, .'ii. 516, 533, 560, 566, 728, 788 Reno V. Crane i. 443 V. Davis ii. 724 Renvrick v. Williams ii. 873 Repeau v. Budden i. 455 Rcpsher v. Shane j. 337 Reriok v. Kern •. ,i. 558 Rcspublica V. Davis i. 199, 307, 309, ii. 4, 8 V. Duane ii. 830 V. Gibbs ii. 939 V. Goss ii. 362 V. Hervioe i. 96, 740 V.Keating j. qi V. Malin j. 766 V. M'Carty i.' 533, 567 V. Mulatto Bob i. 8 V. Nev/ell i. 344 V. Oswald ii. 83X V. Roberts i. 567, 752, ii. 114 V. Ross i. 123 V. Shrivor i. 59 t?evcre v. Leonard i. 121 ii. 645 Rewalt V. Uirich '.ii. 640 Rex V. Absrgwilly i. 174 V.Adams '.'.'.'..i 638 V. Addis •. . . .i. 116 T. Allen .'.'.'. .'i. 636 V. All Saints i. 610, ii. 67, 157 V. Appleby i, 437^ 433^ 4^0 V. Atwood ii_ 528 V. Backler j 570 V. Bagg '.v. \\'\{ 273 V- Barber ;. 39i_ 394 V- Barker ii. 905, 952, 956 V. Barnard ii.942 V. Barnsley .'.'.'.'.".'.V.i.' C6S ■^•Barr ; 559 V. Beardmore ii, 809, 810 V. Beavan i 59 Y. Beczley ii. 788_ 903 ■P^-Bell ii.9i3 V. Bellamy ji. 344^ 3,^7 v. Bembridge j 753 f • Berry ..'.'."..'!! j] 835 V.Beverly ii. 314 V. Bingham ii. 350 V. Bishop Auckland i. 43 V. Bispham ii.' 957 V. Blick i.495 V. Bowman i. 149, 156, 343 V. Brewer ;. 131 V. Brown ii. 385 V. Burbage ii. 827 V. Butterworth i. 333 V. Carpenter i. 660 y- Carty ; i. 533 clviii TABLE OP CASES CITSD. Rex V. V. V. V. V. V. V. V. V. v. Oiistlemorton i. 577 Catesby i. 610, ii. 379 Cator ii. 604, 608 Chadwick ii. 616 Chapman ii. 911 Charnook i. Ill Clicadle ii. 658 Clapham i. 252, 253, 256 Clarke i. 180, ii. 122, 905 Clsan ii. 320 Clewes i. 405, 538, 539, 736 Clivigor i. 85 Colley ii. 886 Coppard i. Crawley i. Crockett i. 290, Croko ii. Ci-utuliley i. 191, Danser ii. Dawbar i. Dawson i. Denio i. 17B, ii. D'Bon ii. 864, Derriugton i. 547, Despard i. Dunn i. 546, Duiham i. Edmunds ii. Ellicombe ii. Ellis i. Ely ii. Ei'iswell i. Evaiu ii. Evans.' i. Eagg i. Fearshire i. Ferry Frystone i. Fintiy ii. Fletolier i. 46, Ford ; ii. Gibbons i. Gilham i. 432, 547, Gilkes ii. Gray i. Hadden ii. 890, Hall i. Hanks ii. Hardwick i, Ilargraves i. Harris ii. V. Harris ii. 235, Y. Hastings i. V Hawkins i. V. Hawortt i. 143, ii. V. H.iydn i. V, Hazy i. V. Hoarno i. v. Helsham i. V. Hemp ii. V. Hempstead i. V. Higgins i. 405, 406, V. Hodgson ii. 905, 933, 940, V. Hogg ii. V. HoUingshead i. 438, 535, V. Holy Trinity i. V. Howartli ii. V. Hudson i. V. Hughes ii. V. Iluloott ii. T. Hulme i. 869 763 291 472 193 144 110 835 517 870 548 112 767 110 230 528 536 311 174 510 835 536 814 174 867 538 511 546 H34 157 127 924 814 384 646 113 3 -'5 325 110 606 5-11 143 635 538 441 952 833 539 952 230 537 577 628 658 126 158 61 Rex V, Hunter ii. 523, 541, 568 Hutchinson ' i. 287 Inhabitants of Upper Boddington i. 140 Jacobs i. 535 James ii. 381, 384 Jenks i. 834 Jennings ii. 122 John i. 199, ii. 121 Jones i. 405, 406, £37, 539, 545 King i. 670 Kingston i. 545 . Knaptoft ii. 44 Knight i. 604 Lafone i. -46 Laindon ii. 683 Lancashire i. 834 Leicester ii. 521 Llangunnor ii. 658 Lloyd i. 287, 650 Long i. 762 Long Buckby i. 672 Longnor (Inhab. of) ii. 471 Lyon i. 834 llarsdeu ii. 865 Mattingley ii. 658 May i. 863 Mead i. 287 Meade i. 832 Mellor i. 114 Merceron i. 432 Merthyr Tidvil i. 577 Millard i. 769 Minton ; . .i. 291 M'Lean i. 95 Mogg i. 762 Montague i. 660 Moores i. 116 Morris i. 865 Morton ii. 563 Mosely i. 291 Munton i. 752 Murlis i. 899 Nate i. 543, 547 Neale i. 114 Netlierseal ii. 77 Netherthong ii. 899 Nicliols i. 950 Noakea j. 114 Northamptonshire i. 735 North Wingfield ii. 658 Nuneham Courtney i. 174 Oakley ii. 156 Olney ii. 658 Owen i. 604, 890 Padstow i. 569, 577, ii. 511 Page ii. 362 Pancrnss ji. 45 Parker ii. 973, 979 Parkins ii. 885 Parnell ii. 319 P:iiratt i. 545 Poarco ii. 522 Pegler ii. 932 Perrott i. 830 Picton ii. 6, ii. 553 Wallia v. Anderson i, 805 v. Murray ni. 326, 333 v. Squire i. 822 V. Truesdell. i. 456 T. Wallis ii. 657 Wallsworth v. M'-CuUough ii. 1 47 Walmsey .v. Booth i. 692 Walmslcy v. Reed ii. 78 Walpole v. Cholnaondel&y ii. 750, 752 v. Ewer ii. 431 Walsh v. Gilmore i. 361 V. Texada's Syndics ii. 647 Walston V. White ii. 640 Walter y. -GlanviUe i. 702 V. Perry ii, 164 Walters v. Gilbert ii. 390, 415 V. Pfeil ii. 77 Walthol v. Johnson i. 325 Walton V. I ronly's Adm'r ii. 647 y. G-reeu i. 187 V. Slielly .i. 122, 129 y. United States ii. 1002 WaUvortli's Case i. 742 Wambough v. Schanck i. 640 Wamburzee v. Kennedy i. 690 Wamsley v. Commonweahli i. 339, ii. 415 Wandless v. Cawthorne i. 104 Ward V. Davidson ii.- 72 v. Fuller. ii. 587 V. Green ii. 54, 131 V. Haydon : i. 49 v. Hoarn ii. 454. V. .Howell et al i. 497 V. Johnson ii. 53, 127, 134 V. .Lattenier ii. 709 V. Lewis ii. 663, 688 v. Cxford i. 199, 253 V. People '. 637, 5:.2, 845, ii. 935 v. Reeder i. 684 y. Stato i. 297 v. Tuekor ii. 699 V. Yan Bnkkelin i. 687 v. Vanduzer i. 442, 712 V. Ward ij. 663 v. Whiting i. 98 v. Whitney.ii..212, 218, 2,J1, 492, 553, 823 y. Winship .ii. 676 Warde v. Warde '. i. i4g Warden v. Eden i. 481 V. Ferfiior ii. 470 V. .Hughes ii. 1001 Warden v. Bailey ji. X43 Wardsworth v. Hamshaw i. 142 Ruggles .ii. 72'2 Ware v. Gay et al i. 812, 826 v. Harbin {. 865 V. Juda i, 850 V. Key i. 482 V. Pelhill i. 608 V. Richardson ii. 844 v. Ware ii. 979 Warfleld v. Castlemain i. 695 Waring iV.' Warren ,i. 193, 322, 323, 325, 330, 331, 588, ii. 525, 815 Wamer v. Commonwealth . . . .ii. 280, 429, 432 y. Payne i. 166 clxxvi TABLE OF CASES CITED. "Warner v. President of Jacksonville i. 229 V. Price i. 301, 497 V. Shed..., ii. 153 Warren v. Plagg ii. 186, 189, 422 V. Greenville i. 666 V. Hall's Ex'r ii. 198, 201, 686 V. Leland i. B47 V. Lynch ii. 454, 4.)6 V. Merry i. 121 V. Stagg ii. 680 V. Wheeler ii. 668 WasCburn v. Cordis ii. V. Merrills i. 681, ii. 649, 698 V. Picot ii. 674 Washington v. Brymer i. 676, 678 V. M'Gee ii. 407 Bank v. Palmer i. 67 Watchman v. Crook ii. 694 Waterman v. Johnson ii. 720, 756 V. Robinson i. 647 Waters v. Lilley i. 609, ii. 730 V. Travis i. 698 Watervliet Bank v. White ii. 692 Watkuis V. Baird ii. 687 V. Harwood L 688 V. Hodges i. 696 V. Stockett's Adm'r.i. 607, ii. 649, 700 v. Watkins i. 34 Ex parte ii. 105, 142 Watrous v. Southworth i. 609 Watson v. Bevern ii. 933 V. Bigelow •. i. 372 V. Blaine ii. 656, 734 V. Boylston ii. 668, 749 V. Foxon i. 611 V. Gilday j. 399 V. Lincoln (Earl of) ii. 706 V. Oshorne i. 404, 850 V. Reed ii. 7O6 V. Threlkeld i. 455 V. Toone i. 700 V. Walker ii. 416 V. Watson . ii. 139, 154, 37 1, 472, 474, 475 V. Williams i. 175, 321, 326 et al. V. his. Co. of N. America, .i. 178 Watson's Case ii. 891 Watt V. Grove ii. 689 Wattles V. Hyde ii. 472 V. Marsh ii. 824, 826 Watts V. Garrett i. c V. Kilbouni ii. 492 V. Lawson i. 427 V. Waddle i. 695, 698, ii. 699 Waugh V. Bussell ; i. 8G3, 866 Wayraan v. Taylor ii. 574 Waymell v. Read ii. 684 Weall V. King i. 838 Weatherford v. Weatherford i. 589 Weaver v. Clifford ii. 143 V. M'Corklo i. 457, 483 v. Shyroek ii. 650 Webb V. Alexander. i. COS, 511, 584, 869, ii. 393 V. Bowman's Ex'ra i. 685 V. Danforth i. 125 V. Joy ii. 376 V. Poele ii. 656, 686 V. Pell i. 691, ii. 68, 72 V. Plummer ii. 792 V. Price ii. 708 V. Rice ii. 647, 683 Webb V. Smith i- 137, 138 V. Warren ii. '792 Webb's Heirs y. Webb's Adm'r..iL 62, 752,755 Webley v. Lanstafif ii- f 06 Webster v. Atkinson ii. 719, 749, 755 v. Clark ii. 551, 916, 925 V. Lee i. bll, 817, ii. 24, 907, 948 V. Webster 1. 688 V. Woodford ii. 687 Wedgwood's Case ii. 279, 282 Weed V. Bishop i. 375, 376 V. Carpenter i. 603 V. Ellis ii. 4 05 Weeks v. Lovverre i. 390, 394 V. Sparke i. 227 Weem's Lessee v. Disney i. 222, 224, 351 Weidler v. Farmers' Bank i. 732, 736 Weidman v. Kohr. .' i. 318, 322, ii. 674 v. Schweigart i 675 v. Wietzel ii. 368, 371 Weidner v. Foster ii. 123 Weigley's Adm'r v. Weir i. 477, 685 Wc4bury v. Lister '. ii. 862 Welch V. Barrett i. 348, 349 V. Carter i. 510 V. Mandeville i. 482 v. Seaborn i. 676 Weld V. Gorham ii. 728, 730 V. Hornby i. 653, 658 Welden v. Buck i. 101 V. Burch ii. 935 Welland C'l Co. v. Hathaway.i. 454, 461, 463, 582 Welles V. Fish ii. 210 V. Hutchinson ii. 688 Wellington v. Gale ii. 375 Wells V. Baldwin ii. 651, 657 V. Battelle ii. 288, 297 V. Drayton i. 437 V. Fisher i. 88 V. Fletclier i. 88 V. Hodge ii. 698 V. Lane ii. 401, 406 V. Middleton i. 692 V. U'Beal i. 695 V. Pierce i. 465 V. Porter i. 147, 725 V. Tucker i. 89 V. Wasliingtou's Adm'rs i. 682 V. Wilson ii. 682, 688 Harbor Case i. 751, ii. 607 Wells' Will, Ca.se of ii. 77, 79 Welsh V. Crawford ii. 394, 397, 443 V. Dusar ii. 734 V. Nash ii. 169, 160 Welty V. Zentmyer ij. 404 Wendell v. Blanchard i. 646 >'. George i. 126 V. Jackson ox d. People ii. 784 V. Moreton i. 672 V. Van Rensselaer i. 692 Wendovor v. Mogeboom ii. 285 Wonter v. Wliito ij. 403 Weutworth v. Chase ii. lis V. Crawford il. 899 Wernwa j; v. Pawling ii. I88, 191 Wesley v. Thomas ii. 649, Gi)8, 700 Wesson v. Carroll jl. 667, 668 V. Chamberlam, Sheriff, &o ii. 166 West V. Andrews i. S25 V. Bolton i. 127 TABLE OF CASES CITED. clxxYii West V. Emmons i. 696 V. Hughes ii. 42 V. Price ' i. 195, 19'7 V. Tilghman i. 464- Boylston Manu. Co. v. Searle ii. 6,66 "Westbrook v. Harbeson i. ITS, 178, iL 600 "West Cambridge v. Lexington i. 195 "Westeott V. Bradford i. 511, 513 V. Cady . . .' ii. IS "Westerhaven v. Clive ii. 662 Western v. Cartwright i. 690, 691, 693, 100 Westfield v. Warren i. 251 Weston V. Alden i. 655 V. Barlser ii. 609 v..Foster ii. 756 V. Hatcli i 68 V. Weston ii. 20, 83, 90 Westropp's Lessee v. Moore ii. 664, 699 Wetherbee v. Ezekial i. 143 Wetherston v. Bdington ii. 486 Wetmore v. MiU i. 411 V. Wliite ij. 100 Weyer v. Zane ii. 106 Weyland v. Tipton ii. 366 Whaley v. Banks i. 805 Whalley v. Whalley i. 681, 694 Wharf V. Howell ii. 649, 134 Wharton v. Lewis ii. 881 Whateley v. Meinheim ii. 54 Whatley v. Johnson i. 33 Whatton v. Toone i. 690, 693, 694 Wheatley v. Slade ii. 699 V. Williams ii. 131 Wheaton v. Cross ii. 862 V. Leyton ii. 293 v. Wheaton ii. 699, 100 T.Weed i. 186 V. Wilmarth i. 86 Wheeler v. Hambright i. 513, 521 V. Hatch ii. 504 T. Hughes i. 482 T. Lampman ii. 311 V. Packer i. 143 T. Raymond ii. 186, 188, 196, 198 v. Van Houten iL 21, 23 V. Wheeler i. 481 Wheelock v. Hall i. 605 Wheelright v. Wheelright ii. 661 Wheelwright v. Depeyster . .i. 854, ii. Ill, 111 Whelan v. Whelan i. 693 Whelpdale v. Cookson i. 692 Whetcroft v. Dorsey ii. 213 Whichcote v. Lawrence i. 692, 694 Whipple T. Stevens ii. 212 Whistler v. Webster i. 695 Whitacre v. M'llhaney. . .ii. 353, 319, 568, 588 Whitaker v. Brown i. 329, 330 V. Freeman i. 145 v. Salisbury. . .ii. 460, 493, 500, 503, 663 V. Smith i. 841 V. Sumner. ii. 369, 310, 312, 315, 119 V. Tatham ii. 101, 162 Whitbeok v. Whitbeek ii. 650, 656 Whitchurch, Ex parte ii. 832 Whitcomb v. Minchin i. 692 T. Stewart i. 391, 393 V. Williams ii. 30 White V. Ambler i. 414, 441, 449, ii. 916 V. Atkins ii. 633 White v. Carpenter ii. 101 V. Casanove i. 685 V. Coatsworth i. 581, ii. 40 V. Crawford i. 651 V. Egan ii. 183 V. Everest ii. 939 T. Ewer i. 619 V. Foljambe i. 666 V. Gerock i. 810 V. Hale et al i. 491 V. Helmes..' i. 8 V. Jones ii. 405 T. KibUng.L 120, 390, 393, 391, 402, 454 V. Lobre ii. 106 v. Lord ii. 400 V. Lynch ii. 861 V. Miller i. 411 V. Mosely i. 858, ii. 25 Y. Philbrick ii. 53 v. Skinner ii. 411, 691 v. Unjon Ins. Co i. 499 V. Waller ii. 914 V. Ward ii. 30 v. Weeks ii. 658 Y. White ii. 135 V. Willard il 361 V. Williams ' ii. 152 V. Wilson i. 604 Wliite's Case ii. 861 White W. & Canal Co. v. Dow i. 98 Whitehead v. Clinch ii. 251 Whiteman«et al. v. Neptune i. 415 Whitesides v. Meredith ii. 131, 132 Whitfield V. Walk i. 351, 319, 586 Whitford v. Tutin ii. 522 Whiting V. Bradley ii. 368, 310, 313, 315 V. Cochran ii. 331 T. Corwin i. 364, 313, 316, 319 V. Daniel ii. 483 V. Johnson i. 321, 143 V. White i. 681 Whitlock V. Ramsey's Adm'x. .' i. 866 Whitmar v. Napier ii. 588 Whitmarsh v. Cutting ii. 192 Whitmash v. George i. 401 Whitmore v. Napier. . . , ii. 588 V. Wilks i. 30 Whitnash v. Gifford i. 301 Whitney v. Bigelow i. 192, 403 V. Ferris ., i. 496, 491 T. Hitchcock i. 160 V. Holmes ii. 409 V, Peckham ii. 30. 55 V. Shufelt ii. 131 V. Sterling i. 388, 461, 493 V. Walsh ii. ill Whittaker v. Bank of England i. Ill v. Williams i. 202, 465 Whittemore v. Brooks. . .il 490, 494, 499, 500, 505 V. Whittemore ii. 24 Whittick V. Kane ii. 649 Whittier v. Smith i. 641 Whittingham v. Bloxham ii. 880 Whittington v. Christian ii. 1010 V. Farmers' Bank i. 146 T. Wright i. 465 et al. V. Roberta i. 825 Whittlesey v. Starr i. 604 Whitton V. Russell ii. 153 Vol: I. 12a dxxviii TABLE OF OASES CITED. WTiittuok T. "Waters i. 252, 264 WhitweU Y. Wyer i. 408 "Whymon v. Gath ii. 520 Wiokea v. Caulk i. 606, SOI, ii. 149 V. Clutterbuok ii. 4'!2 ■Wiokham v. Belknap i. 66^ V. Freeman i. 646 "Wiekliflfe y. HiU ii. 302 Wickware v. Bryan. . , ii. 308, 443 Widgery v. Muuroe i. 122, ii. 728, 730 Wider V. Sehilezzi ' ii. 709 Wier's Case ii. 178 Wiggen V. Bush ii. 674 ■ V. Damrell i. 457, 483 Wiggins V. Holman ii. 960 y. Prior ii. 512 T. "Wallace i. 779 Wigglesworth v. Steers ii. 687 "Wight V. Small's Lessee iL 1001 "Wightman v. Wightman ii. 91 "Wightwiok T. Banks ii. 354 "Wigle V, Wigle ii. 754 "Wigley V. Jones i. 864 Wike V. Lightner ii. 956 "Wilbur V. Brown 1 836 T. Selden.i. 349, 351-, 390, 392, 394, 396 T. Strickfand i. 327, 494 V. Turner i. 811, 817 "Wilburn v. Hall ii. 427 "Wilcox T. Colloway i. 685 V. Philips ii. 428 V. Ray ii. 254, 345, 353- v. Sheldon i. 522 V. Singletary ii. 407 T. Smith i. 218, 593, ii. 153 V. "Wood ii. 732, 793, 795 "Wild V. Tinor ii. 406 Wilde V. Port i. 698 Wilde's Case ii. 722 Wilder v. Case ii. 387, 388 Wilhite V. Roberts ii. 683, 684 Wilkes T. Jackson i. 854, ii. 53 Wakinsou v. Adam ii. 723 T. Leland ii. 83 T, Scott i. 477; 685, ii. 656 v. Wilkinson ii. 698, 699 Willans v. Taylor i. 178 Willard v. Harvey ii. 390, V. Sperry ii. 25 Willaume v. Gorges i. 682 WUlbourn v, Parkham i. 125 Willes V. BatteUe i. 583 WiUeta v. Ph<]enix Bk ii. 711 Willett V. WinneU i. 681 Williams v. Allen i. 805, 808 V. Allison i. 840 V. Amory ii. 374 V. Armroyd ii. 171, 177 V. Bacon ii. 680 V. Baldwin i. 89 V. Bank of Michigan i. 746 T. Banks ii. 212 V. Beard i. 33 V. BUncoe i. 8 ' V. Blunt ii. 144 V. Brace ii. 143 V. Broekett ii. 375 Y. Carr .ii. 368, 371 V. Chapman ii. 962 V. Cheesborough .ii. 367, 371 Williams y. Orarey ii. 483, 516, 684, 705 Y. Cummins ■_]■ ^''6 V. DaYis ii- *88 Y. Bast India Co i. 605, 635, 704 V. Ensign L 396 V. Gale i- 654 Y. GUman ii- 720, 729 V. Hayes i- ''93 V. Hodgson I 500, ii. 73 V. Kelley et al i. 459 Y. Kelly and Halstead i. 202 Y. Kinnard '. i- 847 V. Lowndes i. 460, ii. 268 V. Matthews i. 841, ii 873 V. Mattocks .■ i. 697 V. Merle. . . ; ii. 255, 258 Y. M'Fall ii.l34 Y. M'Gee i- 668 Y. Morland i. 653, 654, 655 Y. Mundie ii. 523 Y. Ogle i- 863 Y. Payton's Lessor : .ii. 473, 475 Y. Preston ii- 65 Y. Price i, 428 V. Rogers .ii. 376 Y. Shaw i- 804 V. Sheldon i. 610, ii. 301 Y. Storrs i. 699, ii. 86 V. Taylor ii. 1013 Y. Thomas i. 818 Y. Thorp i. 101, 428 V. Trepaignier ii. 1 24 V. Walbridge i. 12 1 Y.Welch i. 747 Y. Wilkes ii. 347 Y. Willard i. 390, 400 Y. WilHams i. 251, 393 Y. Wood i. 461, 633 Y. Woodhouse iL 30 V. Woodman i. 751 WiUiams' Case i. 543, 550 Heirs y. Wilson ii. 583 Lessee y. Burnet ii. 296 V. Henderson ii. 813 Williamson y. Commonwealth i. 205, 265 Y. DiUon i. 178, 200 Y. Farrow ii. 84 Y. Goold i. 701 Y. Henley i. 440, 791 V. Johnson ii. 514 Y. Morton i. 92. Y. Patterson i. 350 Y. Perkins ii. 375 V. Tunno ii. 174, 175 V. Williamson i. 631, 701 Williamson's Case i. 738 Willies y. Farley i. 198, 206, 320, 327, 494 Willinck v. Miles i. 593, ii. 585 Willing V. Perot ii. 88 WiUiuga V. Consequaa. 31, 7 13, ii. 038, 698, 726 Willis y. Bailey ii. 316, 333 Y. Bernard i. 81 y. Brown i. 32 Y. Jernegan .' . , i. 439 Y. Peckliam ii. 814 Y. Snelling i. 517 V. Willis ii. '702 WiUoughby y. Carleton ii. 460, 545 V. Raymond / . i. 847 Wms V. Tucker .■ i. 4 TABLE OF CASES CITED. clxxix Wilmarth v. Mountford i. 55 "Wilmer v. Harris i. 175, 502, ii. 512 V. Israel -.i. 3t9 ■Wilmington v. Burlington i. 253, 811 Wilmot V. Munson i. 851 V. Smith i. 516 "Wilmot's Lessee v. Talbot i. 89 "Wilson V. Allen i. 666, BIO V. Betts ii. 480, 593 V. Boerem i. 286 V. Bowie i. 577 V. Codman's Ex'r i. 842 V. Collins ii. 868 V. Conine ii. 365, 379 v. Daniel ii. 114, 1000 T. Gale i. 605, ii. 530, 539 V. Graham i. 685, ii. 198 V. Hamilton ii. 21, 25 V. Hanson il. 666 V. Harding i. 173 V. Herkimer Co. 1)1. Ins. Co i. 782 V. Hirst ii. 134 V. Hurst's Bx'rs ii. 370 V. John ii. 149 V. Larmouth ii. 117 V. Lenox i. 119 V. Lozier il. 428 V. Mawson i. 865 V. MoOullogh ii. 895 V. Myers i. 654 ads. Robertson ii. 721 V. Simpson i. 186 T. Smith ii. 429, 430, 588 V. Stoner i. 652, 668, ii. 301 v. Troup i. 140 V. "Wadleigh i. 523 V. "Wallace i. 852 V. "Weller ii 157 T. White ii 870 V. Wilson i. 374, 378, 379, 381, 382, ii 707 V. "Witherby i. 671, 678 V. Woodhall et al ii. 755 "Wilson's Adm'rs v. Bowen i. 736 V. Hines i. 428, 431 HeirST. Bodley i, 690 "Wilt v. Franklin i. 609, ii 656, 686 "Wilton V. Girdlestone ii. 378 Wimmer's Appeal ii. 81, 83 "Winans v. Dunham ii 61, 66, 379 V. Huston ii 117 "Winoheoomb v. Hall i. 691 Winchell y. Latham i. 714, 739, ii. 869, 908 "Winchester v. Evans ii. 108, 186 V. Union Bank i. 746 "Windham v. Lord Egremont i. 608 "Winford v. PoweU i. 822 •Wing V. Burgis ii 719, 773, 783 V. Chase ii 457 "Wingfleld v. "Whaley i. 698 "Winlock V. Hardy. i. 732, 736, ii 583, 585, 588 "Winn V. Patterson . .ii. 353, 479, 505, 568, 584 "Winship v. Bass ii. 753 "Winslow V. Common-wealth i. 853 Y. Grindal ii. 125 Winstanley v. Savage i. 677, 684 "Winston v. Moseley ii 907, 982 "Winter V. Thibodeaax's Ex'rs ii 64, 474 Winters v. January ii. 72 Winthrop's Survivors v. Lane ii 608 Winthrop v. Colyor i. 68 Winthrop v. "Union Ins. Co ii. 729 Winton v. Saidler i. 119 Wirnwag v. Pawling ii. 429 Wise v. Hilton i. 403 v. Tripp .' i 126 V. Wilcox i 130 V. Withers ii. 145, 150, 151, 154, 163 Wishart v. Cosby ; ii. 783 Vi Downey i. 587, ii 536 Wisner v. Baruet i. 684, 689 V. Ogden i 684, 685 Wistar v. Walker i 482 Witherell v. Swan i 343 Witherington v. Bveleth ii. 145 Withers v. Atkinson i. 400, ii. 577, 924 V. Gillespy . . .-. . .-. .i 410; ii. 519, 537 V. Eichardson A. 408 Witherspoon's Heirs v. Witherspoon's Bx'fS ii. 754 Witmer v. Schlatter it. 8, 9, 53 Witter V. Brewster ii. 337 V. Cazalet ii 323 V. Latham i 4 Wolf V. Carothers i. 327 V. Rodifer i 827 V. Wyeth' i. 395, 398' Wolfe V. Horton ii. 386 V. Washburn ii. 117, 254, 390, 393 WoUey V. Brownhill i. 649 Wolverton v. Commonwealth ii: 352, 397 Womach v. Hughes ii 583, 688 V. Wilson ii. 583 Wood V. Ambler i. 586 V. Bank of Kentucky i. 685 V. Beach ii 658 V. Briant i. 684, ii. 705 V. Bulkley i. 863 V. Chapiti .' ii. 658 V. ConneU ii 521, 896 V. Davis ii 4, 13, 125 V. Fitz i 218 V. Grundy ii. 128 V. Hickok ii. 726 V. Jackson ii 21, 40, 44, 110 V. Jefferson Co. Bank ii. 295 V. Lee ii 724 V. Little ii. 405 V. Ludwig ; . . .1. 33 V. M-anri •. .ii. 105 V. Perry ii. 653, 727 V. Pleasants ii 257, 417 V. Sbephen ii 4, 7, 13 V. Toney ii 373 V. Wilcox ii. 730 V. Williams ii. 360 Wood'i^ Lessee v, Piudal i. 34 Woodard v. Paine. 1. 175, 215, 305, ii. 143, 151 V. Speller i 252 Woodbridge v; Austin i. 814, ii. 433 V. Spoouor ii 675 Woodbury v. Northy ^ . . . .i. 7 Woodcock V. Bennett i 7 13, ii. 646 Woodcock's Case i. 292 Wooden v. Shotwell i. 471 Woodford's Heirs v. Pendleton i. 746' Woodhouselee v. Dalrymple ii. 723 WoodhuU v. Holmes i. 811, ii. 674 Woodmau V. Coolbroth. ii 588, 661, 664 Woodmas v. Mason ii 347' Woodroffe v. Williams ii 350 clxxx TABLE OF CASES CITED. "Woodruff V. Mer. Bk. ofN. T. . .ii. '728, 188, 805 V. Whittlesey i. 325, 327, 758 "Woods V. Gourter ii. 286 V. Morrell ii. 937 V. M'Pheran ii. 886 V. "Woods i. 641. V. Toung ii. 1062 "Woodson V. Bui'ord i. 604 "Woodward v. Larking i. 473 V. Paine ii. 139 V. Spiller ii. 613 V. Tremere ii. 198 "Wood worth v. Van Buskirk ii. 108 "Woolenweber v. Ketterlinus 1. 385 V. Morris i. 345 "WooUam v. Hearn ii. 700 "Woollaston's Case i. 680 "Wooster v. Parsons i. 822 • V. Perry ii. 870 "Wooten V. Redd's Ex'rs ii. 640, 688 "Worcester v. Green ii. 7 (Inhab. of) v. Eaton ii. 685 Wormau v. Boyer i. 379, 516 V. Leagarder ii. 640 V. Commonwealth ii. 383 "Worrall v. Jones i. 29, 30 V. Parmelee ii. 1012 "Worswiek r. Beswick i. 733 "Wortham v. Commonwealth ii. 110 "Worthington v. Bioknell i. 126 V. Hylyer ii. 783, 785 "Worton V. Smith i. "Wray v. Comptroller-General i. 685 V. Field ii. 706 V. Steele ii. 701 "Wren v. "Wardlaw ii. 667, 672 "Wright V. Butler ii. 19, 40 V. Cooper i. 853 V. Court i. 493 T. Crookes ii. 688 V. Freeman i. 650, 657, 659 V. Hicks i. 87 V. Howard i. 653, 656, 657 v. Jacobs ii. 518 V. King ii. 644 V. Latham ii. 670 V. Lathrop ii. 53 V. Littler i. 21, ii. 208 V. Matthews ii. 875 V. Mott ii. 337 V. Nichols i. 1006 V. Patton ii. 274, 434 V. Philips i. 621 V. Sharp i. 380, 384 V. "Weakley ii. 669, 691, 692 v. "Williams i. 828, 872 v. "Wood ." ii. 850 V. "Wright . .i. 460, 475, ii. 81, 403, 883 Ex parte ii. 401 "Wright's Lessee v. Deklyne. ..i. 176, 510, ii. 18, 19, 62, 679 "Wroe T. "Washington i. 849 "Wusthoff V. Dracourt ii. (40, 733 "Wyatt V. State i. 537, ii. 249 "Wyohe v. Macklin ii. 687 "Wyman v. Farrar ii. 714 V. Mitchell i. 822, ii. 144 V. "Winslow ii. 694 "Wynants v. Sherman i. 6, 343 ■Wynham v. People ii. 996J 998 "Wynkoop v. Burger il 155, 803 "Wynn v. "Williams i. 683 "Wynne, v. Anderson i. 54 V. "Waring i. 677 "Wynstanley v. Lee i. 649 T. Tale V. Dederer i. 466 Yallop V. Holswortliy i. 690 Ex parte ii. 702 Tarborough v. Beard ii. 471, 583, 588 T. Hudson i. 578 v. Monday ii. 457 Yard v. Cramond ii. 124 Yate V. Mosely i. 695 Yates V. Carnsew l 407, 752 V. Hamble i. 681 V. Lansing ii. 103, 141, 156, 162 V. St. John & "Van Alstyne ii. 364 Yeateman y. "Woods ii 708 Yeates v. Pim ii. 726, 731 Yeatman v. Erwin ii. 548 Ex parte i. 132 Yeaton v. Bank of Alexandria iL 726 V. Fry ii 419, 814 Yeomans v. Chatterton ii 674 Yewin's Case ii 951 Yordan v. Hess i. 136, 142, ii 159 York and Md. Line B. R. Co. v. Winans .i. 619 York Buildings Co. v. Mackenzie . . .i. 692, 694 York's Case i 532 Yorke V. Pease ii. 892, 912 Yoter V. Sanno ii. 515 Youds V. Lefavour i. 491 Youle V. Brotherson ii 107 Young V. Bairner i 81 9 V. Bank of Alexandria. ii. 273, 341, 429 V. Black ii. 21, 40, 47, 1002 V. Brown ii. 608 T. Chandler ii 427 V. Commonwealth i. 503 V. Craig ii. 699, 700 v. Dearborn i. 390, 400 T. Gregory ii. 417 V. Grundy ii. 674 V. King (The) i. 831 V. Mackall ii 212, 214 V. Mason i. 734 V. Overacker ii. 34, 109, 391 V. Price i 682 V. Reuben ii. 404 V. Ringo ii. 588 V. Stockdale ii. 507 V. "Wiseman j. 689 V. Young i. 872 In re ii. 644 Youter v. Sanno i 133, 164, ii 554 Yrisai-ri v. Clement ii 195 Zabriskie v. Smith ij. 1007 Zane's Devisee v. Zane i. 686 Zeno V. Louisiana Ins. Co ii 172 178 Zerbo v. Sohall ii' 301 Zerby v. AVilson ii. 468, 469 Ziele V. Campbell's Ex'rs i. 852 A TREATISE ON THE LAW OF EYIDEl^CE. VOLUME THE FIRST. With a view to assist the proceedings of Courts of Justice in the investigation of facts submitted for their decision, general rules Have been laid down respecting the admissibility and effect of evidence, and the order in which the several proofs are to be adduced. These rules constitute the Law of Evidence, and are the subject of the following Treatise. In inquiries upon this subject, the great end and object ought always to be the ascertaining of the most convenient and surest means for the attainment of truth. The end sought is truth; the rules laid down are the means used for the attainment of that end. The evidence adduced before juries upon controverted questions of fact is of two kinds ; Parol Evidence, consilting of the viva voce examination of witnesses, and Written Evidence. In treating of these subjects, the following work will be divided into three parts. In the first part, it is proposed to consider the subject of proof by witnesses, and the principal rules relative to evidence in general ; in the second part, to, consider the subject of written evidence; and, in the third part, it is proposed to consider certain branches of the law of evidence, chiefly of a practical nature — such as the means of enforcing the attendance of witnesses, the Vol. I. 1 2 Introduction. mode of examining witnesses, bills of exceptions and demurrers to evidence ; and tlie consequences generally of the improper admission or rejection of evidence by a judge at the trial. There are, moreover, certain matters which do not require proof; such as those which the judge or jury are presumed to be already acquainted with; these are said to be noticed judicially. Matters, also, that are admitted on the record or under a judge's order, do not require proof. These subjects will be treated of in the appropriate divisions of the following work. PART THE FIRST. CHAPTEE I. OF THE PROVINCE OF THE JUDGE TO DECIDE UPON" THE ADMISSIBILITY OF EVIDENCE ; AND OF THE SEVERAL CAUSES OF INCOMPETENCY OF WITNESSES. The parties to a suit are not permitted to adduce every description of evidence wliich, according to their own notions, may be supposed to elucidate the matter in dispute; if such a latitude were permitted, evidence might be often brought forward which would lead rather to error than to truth, the attention of the jury might be diverted by the introduction of irrelevant or immaterial evidence, and the investigation extended to a most inconvenient length. In order to guard against these evils, certain rules for limiting and regulating the admissibility of evidence have been established, from time to time, by the judges ; few of this description of rules are the result of positive legislative enactment.(l) It is the province of the judge presiding at the trial, to decide all questions on the admissibility of evidence ; it will be for the judge also to decide any preliminary question of fact, howevef intricate, the solution of which may be necessary for enabling him to determine the other question of admissibility. Upon this subject, it has been said by Buller, J.,(2) that (1) See by Ld. Abinger, C. B., in B. v. Eyle, 9 M. & "W. 239, and by Parke, B., Ibid. 244. (2) Carpenter's Company v. Hayward, 1 Doug. 375 ; B. N. P. 297. (Under recent statutes, in England and in this state, fewer objections are now allowed to the competency of witnesses than were permitted under the common law rule ; but the former deci- sions are still important in many respects, and wiU therefore be cited as usual, especially where the principle to be illustrated applies with equal force to other cases of incompetency.) Note 1. — In Pennsylvania, if, when a witness be offered, it be perfectly chew from the testimony given in relation to him, that he is interested, the court may reject him as incompetent ; but if his interest be in the least degree doubtful, the court should permit him to be sworn, instructing the jury that i^ in their opinion, he is interested, they are to pay no regard whatever to his testi- mony. Hart V. Heilner, 3 Eawle, 407. Where a summary proceeding is instituted by statute to be conducted on proof, the law will hold the tribunal to the same rules of competency as prevail in the common law courts, unless a contrai7 rule be declared by tlie statute. The State v. Barrow, 3 Murph. 121. 4 Of the Province of the Judge [CH. I. Evidence received by a judge on the trial of a cauBe, as preliminary to the introduction of other evidence, (e. g. that one is a partner, so as to let in his admissions as evidence agamst another partner,) is not to be submitted to the jury. It is the province of the judge, and not of the jury, to pass on its sufficiency. Harris v. Wilson, 1 Wend. hi. See also Hartford v. Palmer, 16 John, Eep. 143 ; Livingston v. Kiersted, 10 John. Rep. 362 ; Lyon v. Daniels, 14 Penn. State R. 197. That the jury are to decide on the sufficiency of evidence, there are many cases, among which these are a few : Wills v. Tucker, 3 Binn. 310, 372, 373 ; Hardway v. Monson, 2 Munf. 230 ; Shanks v. Fenwick, Id. 487 ; 1 Wash. Yirg. Rep. 90 ; Eoseboom v. BiUington, 17 John. Eep. 182 ; Fish- er's Ex'r V. Duncan, 1 Hen. & Munf 563 ; Keel v. Herb, 1 Wash. Tirg. Rep. 203 ; New York Firem. Ins. Co. v. Walden, 12 John. Rep. 513 ; Lessee of Pehl v. Good, 2 Bum. 495 ; Rogers v. Briley, 1 Haywood, 256. Incompetent evidence should always be withheld from the jury. Lee v. Tapacott, 2 Wash. Tirg. Eep. 276 ; Brown v. May, 1 Munf 291 ; Penfield v. Carpender, 13 John. Eep. 350 ; Miller v. Starks, Id. 517. Competency is presumed till the contrary is shown; And see the following cases : Hall v. Gittings, 2 Harr. & John. 112, 120 and 121, and the cases cited by Chase, C. J., at the last page ; Stoddard v. Manning, 2 Harr. & Gill, 147 ; Callis v. Tolson's Ex'rs, 6 Gill & John. 80, 91'; Sax- ton V. Boyce, 1 Bail. 66 ; Smith v. White, 5 Dana, 382, 383 ; Savage, C. J., in Jackson ex dem. Howell V. Delanoy, 4 Cowen, 427, 430. But the interest once being established, it should be clearly removed ; and the witness leaving the question doubtful on the facts stated, and the judge at N. P. rejecting him, the court in bench refused to grant a new trial. Seymour v. Beach, 11 Conn. Rep. 275, 281, 282 ; McManagil v. Ross, 20 Pick. 99, 103. These cases, in short, with many others, (see Witter v. Latham, 12 Conn. Eep. 392, 400, and the cases there cited, especially Donelson v. Taylor, 8 Pick. 390; see Coleman v. Woloott, 4 Day, 388, conira,) hold, that it is for the court alone to try and determine the ques- tion of competency, both as to the law and the fact, wherein it comes in place of a jury ; and a new trial will not be granted where there is a fair conflict of evidence, even though the court may find against a slight preponderance. The rule here does not apply, that the court shall decide the law, and the jury find the facts. AU this was also fully considered and expressly determined, in Townsend v. The State, 2 BlaokC 151, 162, and see High v. Stainback, 1 Stew. Eep. 24. And above all, error does not lie for a finding, one way or the other, upon the facts. Taylor v. Taylor, 2 Watts, 357, 358. After the court has determined the question, it is not proper to submit it to the jury. Witter v. Latham, supra. Though it is said that where the point depends on the decision of an intricate question of fact, judges oeoasioually, in practice, take the prehminary opinion of the jury. 8th ed. Phil. Ev. by Amos and Phillips, p. 2, and note there. It is no ground for a new trial, that, on a preliminary examination as to the competency of a witness, the judge allows, in order to prove interest, improper evidence to be given in the presence of the jury ; he, in the end, properly receiving the witness on the merits, and submit- ting his credit to the jury. Ackley v. Kellogg, 8 Cowen, 223. Under what qualifications it shall be said that the jury are, on the merits, to find the law and fact, either in civil or criminal cases, was much and ably inquired, in Townsend v. The State, supra. The trial was on an indictment under the excise law, for selling spirituous hquor with- out license. A license was offered ia evidence ; but appearing on its face to be in consideration of a sum less than the statute required, (60 cents instead of $5,) the court pronounced it void, excluded the evidence, and directed the jury that it was not their province to determine the law. On error, it was held, that the jury are judges of the fact, both in civil and criminal matters, on such evidence as the court shall submit to them as competent ; but they are not, in general, either in civil or criminal cases, judges of the law. They are bound to find the law, as it is pro- pounded to them by the court. They may, indeed, find a general verdict, including both law and fact ; but if, in such verdict, they find the law contrary to the instructions of the court, they thereby violate their oath. The same thing wai lately held by Story, J., in a capital case. United States v. Battiste, 2 Sumn. 240, 243. He stated it as the opinion of his whole professional life, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. He said, that in each case, they had the physical, but not the moral right to decide the law according to their own notions or pleasure. CH. I.] As to the Admissibility of Evidence. 5 whether there is any evidence is a question for the judge, but whether the evidence is sufficient is a question for the jury.(l) This rule applies to the admissibility of every kind of evidence, written as well as oral ; and in all cases, both civil and criminal. There are certain conditions precedent which are required to be observed before evidence is to be submitted for the consideration of a jury. Thus an oath or its equivalent, and competency in a witness, are conditions precedent to admitting viva voce evidence ;(2) so the fact of a person's expectation of immediate death, previously to the admission of proof of his dying declarations ;(3) so, also, the proof of requisite search, That it ia the duty of the court to instruct them as to the law ; and of the jury to follo-w such instruction. That if the jury -srere to decide, it would render the law uncertain ; it would he almost impracticable to learn what they did decide ; the court would have no right to review their decision ; that every person has a right, to be tried according to the fixed law of the land. If he thought the jury were judges of the law, he should hold it his duty to abstain from stating the law to them. And to this it may be added, if the law give the right to the jury, why should it run into the inconsistency of requiring the court to determine the admissibility of evidence ? But all the leading arguments and authorities on the question will be found fully and ably con- sidered by Holman, J., in Townsend v. The State, 2 Blackf. 156, ei seq. He cites Addison, J.'s charges, SuppL Add. Rep. 53 to 63, No. 6 ; and Pennsylvania v. Bell, Add. Eep. 156 ; and The Same v. McFall, Id. 255, which go strongly to uphold the same doctrine. The learning of the question is perhaps exhausted in charge No. 6 of Judge Addison, p. 57, et seq., and his argu- ments are such as it is difficult for the legal mind to resist. Note 2. — The burden of making out that a witness is incompetent, lies on the party who makes the objection (per Bayley, J., in Marsden v. Stansfield, 7 Bamw. & Cress. 815 ; S. C, 1 Mann. & Eyl. 669, and vid. Watts v. Garrett, 3 Gill & John. 355) ; yet the case of a bankrupt, called in respect to the foundation of the commission, seems to form an exception. He, it is said, cannot be examined either to support or defeat the commission j for he often has an interest to do either, and is excluded, for that reason, in general practice. Sayer v. Garnett, 7 Bing. 103. Note 3. — Utica Bank v. HiUard, 5 Cowen's Rep. 153 ; Cushmau v. Loker, 2 Mass. Eep. 108 ; Commonwealth v. Snell, 3 Id. 82 ; Churchill v. Suter, i Id. 162. A witness is never holden incompetent merely on the ground that the fact that he is called to prove, is of such a nature that he cannot be convicted of perjury should he swear falsely. The People v. Ferguson, 8 Cowen's Eep. 102. Nor is it an objection to his competency that the facts to which he swears positively, are of such a nature that they could not be within his knowledge. Thompson v. Stewart, 3 Conn. Rep. 171. Seamen are considered in law credible as well as competent wit- nesses, and their testimony is to he weighed by the jury like that of other witnesses. United States V. Freeman, 4' Mason, 505. (1) See also Bennison v. Jewison, 12 Jur. 486, Bxch. (2) See infra, ch. 3. For this reason the declarations of a person of weak and feeble understanding, who cannot talk, cannot be received in evidence. He must be capable of testifying and sworn as a witness, otherwise his account of the transaction cannot be shown in evidence. The People v. McGee, 1 Denio Rep. 19. (3) Major Campbell's Case, cited by Parke, B., in Bartlett v. Smith, 11 M. & W. 486. Qy. S. C. cited by Lord EUenborough, in E. v. Hucks, 1 Stark. E. 523. In R. v. Woodcock, 1 Leach C. C. 504 ; S. C, cited 1 Stark. E. 523, in notis. Byre, C. B., is said to have left the question to the •jury. To render the dying declarations of deceased admissible in evidence, it must be shown that he was actually in a dying condition, and conscious of the fact, when they were made. Campbell T. The State, 11 Geo. 363. It is the apprehension of immediate death which renders his decla- g Of the Province of the Judge [CH. I. previously to the admission of secondary evidence of lost writings ;(1) and the proof of a stamp, prior to the admissibility of certain written documents; (2) and the proof of consanguinity or affinity in the declarant, prior to the admission of declarations of deceased relatives.(3) The judge alone has to decide whether such condition precedent has been fulfilled. If proof is offered by witnesses, he is to decide on their credibility. If counter evidence is proposed, he must receive it before he decides ; and he has no right to ask the opinion of the jury on the fact as a condition precedent.(4) The question, whether an ancient document is produced from the proper custody, is a preliminary question to be decided by the judge.(5) In like manner, where it is proposed to. give in evidence declarations or admissions made by a party to the suit, and a question arises as to the identity of the party making such declarations, that question is a preliminary one for the decision of the judge.(6) Neither the admissibility nor the effect of evidence will be altered by the circumstance that the fact which the judge is to decide as a condition precedent, is the same fact that is to be decided by a jury on the issue : ration competent evidence. The State v. Tilgliman, 11 Ired. 513. Such testimony is admissible, notwithstanding the " prisoner's right to be confronted with the witnesses against him." Green V. The State, 13 Mis. 382. (1) See by Alderson, B., in Bartlett v. Smith, ut swpra, 486. The party seeking to prove the contents of a lost paper must exhaust all the means of discovery which are accessible to him, and suggested by the nature of the case. Harper v. Scott, 12 Geo. 125. The necessary preliminary evidence of loss depends very much upon the nature of the instrument as well as the circumstances of the case. "Waller v. The Eleventh School District, &o., 22 Conn. R. 326. When it is in the possession of a third person residing out of the jurisdic- tion of the court, its contents may be proved without previous notice to produce it, where it can- not be presumed to be in the possession of the opposite party. Shepard v. Giddings, 22 Conn. E. 282. (2) Bartlett v. Smith, ut supra, 483. (3) Doe d. Jenkins v. Davies, 10 Q. B. 314. (4) Per Cwr. 10 Q. B. 323. In like manner where the plaintiff seeks to establish his case by introducing his books of account he must first prove by witnesses who have dealt and.settled with him, that he keeps honest and fair books of account, that the book presented is a book of original entries, that s6me of the articles charged have been dehvered, and that he kept no clerk at the time the account was accru- ing. Vosburgh v. Thayer, 12 John. Eep. 461 ; Linnell v. Sutherland, 11 Wend. 668. This pre- liminary evidence being given, the books must be offered without condition (Winants v. Sherman 3 Hill B. 14), must be scrutinized with care, and received with great caution. And this prelim- inary or introductory evidence is addressed to the court, to enable it to determine whether the books of account shall be received as evidence at all. Larue v. Rowland, 7 Barb. R. 107. If the books are impeached, as unworthy of credit, it is the duty of the court to reject the evidence as incompetent. Coggswell v. DoUiver, 2 Mass. R. 217 ; Eastman v. Moulton, 3 N. Hamp. R. 156. (The ground on which books are received in evidence, namely, from the necessity of the case, renders it questionable whether they are now admissible, since tlie passage of the act allow- ing parties to the suit to be sworn as witnesses in their own behalf.) (5) Swinnerton T. Stafford (Marq.), 3 Taunt. 91 ; Miohell v. Rabbetts, cited Ibid. ; Moath (Bp.) V. Winchester (Marq.), 3 N. C. 183, 198. (6) Corfield v. Parsons, 1 0. & M. 730. CH, I.] As to the Admissibility of Ihidence, 7 as, where the declarations of an agent are admissible, he may first prove to the satisfaction of the judge that he is an agent, and his evidence therefore admissible, though the question at issue turns upon the fact whether he be agent or not, and the jury have ultimately to decide that question.(l) The law excludes some descriptions of evidence as wholly improper to be submitted to the jury, and rejects the testimony of certain persons, who are on this account termed incompetent witnesses. Where the question as to the admissibility of evidence depends upon oral testimony, such testi- mony must necessarily be given in the hearing of the jury; but where it depends upon written evidence, the proper course appears to be, that the writing should not be read aloud, but that it should be handed to the judge for his consideration.(2) The rules respecting the incompetency of witnesses are chiefly founded on the consideration, that, in the ge;ierality of instances, the testimony of those witnesses, whom the law deems incompetent, would mislead juries ; and it is obvious that the propriety of the exclusion in each particular case must be judged of, according to the constitution of the tribunal to which the evidence is submitted, and with reference to the mode of proceeding before it. For this purpose, it is necessary to refer to the difference which exists between judicial investigations and the ordinary transactions of life, more especially with regard to the space of time allowed for decision, the temptations to deceive, the facilities of deception, and the consequences of deciding incorrectly. There are three cases, in which a witness is deemed incompetent to give any evidence at all, viz : 1st, "When the witness labors under a defect of understanding ; 2dly, Where he refuses to take an oath, or from defect of religious principle does not acknowledge its sanction ; and 3dly, Where he is interested in the matter in issue, either as a party to the action, or as being the person in whose immediate behalf the action is brought or de- fended. Every person not affected by any of these objections, will now be competent to give evidence.(3) (1) By Brie, J., 10 Q. B. 320. (2) Smith T. Sleap, 1 Car. & Kir. 48. (3) Note 3. — There is still another class of cases where an objection to competency will lie, grounded upon principles of policy. A juror is incompetent to prove the misconduct of his feUow jurors, in order to impeach the verdict. State v. Freeman, 5 Conn. Rep. 348. So, a grand juror, to prove that a witness, who has been examined before the petit jury, swore differently before the grand jury. Imlay v. Eogers, 2 Halsted, 841. But a juror may be admitted to prove improper attempts, by a party, toinfluence the minds of the jury. Denu ex dem. Chews v. Driver, Coxe, 166. And in New York, by statute, a grand juror is bound to testify as to any consistency or inconsistency between what a witness swore before the grand and petit jury ; and to disclose testimony given before the grand jury, on a complaint against or trial of a witness for peijury ; but is expressly restrained as to the manner in which he or any of his fellows voted, or what were their expressed opinions. 2 E. S., part 4, ch. 2, tit. 4, § 31, p. V24. An arbitrator is a competent witness to show the time when and the circumstances in which he made his award. Woodbury v. Northy, 3 Greenl. Eep. 86. 8 Of Incompetency [CH. I. Until a 7&jj recent period, tbere were two other causes of incompetency in a witness, viz : 1st, Where his character was infamous in consequence of conviction of some crime ; and 2dly, Where he was interested to any extent, no matter how trifling, in the matter in issue. This latter class included the one thirdly above enumerated, which is still incompetent. The expediency of the rule establishing these two causes of incompetency, Whether slaves were witnesses at oommon law does not seem settled. In this country they are generally incompetent by statute. In the Duke of Norfolk's Case (1 St. Tr. 113) the duke objected to the Bishop of Koss and others as incompetent witnesses against him, they being strangers, and cited BracUm. Catlin (who was then chief justice of England) answered : " Braoton, indeed, is an old writer of our law, and by Braoton he may be a witness ; a stranger, a bondman may be a witness. Ask you all the judges here." The book proceeds: "And the judges affirmed that he may." They were all present, as this was a trial before the lord high steward. So it seems to have been declared, or at least assented to, by men who had dehberated upon and understood the subject, and that too in the 14 Eliz., when viUenage was but recently if yet entirely done away, that a bondman (slave) may be a witness at the common law. MacnaUy's Ev. 156, S. P. But in Resputalica v. Mulatto Bob (4 DaU. 145, note 1), M'Kean, Ch. J., said it was a settled point at common law that a slave could not be a witness, because of the unbounded influence of his mas- ter over him, which was at least equal to duress; that the act of assembly was in aid of the common law. Formerly there was a statute of New Tork forbidding a slave to be a witness, except for or against another slave in criminal oases. 2 R. L. 207, sess. 36, ch. 88, § 19. But slavery is now abohshed in this state (1 E. S. 659, § 16), and all slaves coming here, except fugitives from another of the United States, are declared free. 1 E. S. 835, 1836, 3d ed. There is now, however, no statute regulation as to the competency of slaves to testify — at least, none which the editor has found in the new statutes. This is left as at common law. A free black man was always competent to prove facts happening while he was a slave. Gumee v. Dessies, 1 John. Eep. 508. So a slave manumitted by an infant, for such act is not void, but voidable only on the infant coming of age — a contingency which shall be allowed to go only to his credi- bility. Eogers' Ex'rs v. Berry, 10 Id. 132. But in Maryland a free black man is an incompe- tent witness in a suit between free white Christians. Rusk v. Sowerwine, 3 Har. & John. 97. So in South Carolina. White v. Helmes, 1 M'Cord, 430. The condition of the American slave seems to be quite different from the villein, or English slave, who might exercise many of the powers of a freeman. Vid. 4 Reeve's Hist. 309, 2d ed. They were considered as persons. The American slave is considered as a thing. Vid. Chinn v. Repass, 1 Monroe, 25, 28. He is on the footing of the Greek or Roman slave. Per Ch. Des- saussure, in Bynum v. Bostick, 4 Des. 267. The condition of the Roman slave may be seen in Tayl. Elem. Civ. Law, 429, which is transcribed in Coop. Just. 411, where the author also notices the condition of the Greek slave. It is said, however, by Johnson, J., in Hall v. Mullin (5 Har. & John. 193), that the condition of slaves in Maryland depends neither on tha civil nor feudal law exclusively, but may perhaps rest in part on both, subject to changes in the state law. A man charged as putative father of a bastard child, by a mother of the mixed blood, cannot be convicted by her testimony, as she is excluded from testifying by a proper construction of the North Carolina statute. The State v. Barrow, 3 Murph. 121. And see 'Williams v. Blin- coe, 5 Litt. 171 ; Tumey v. Knox, 7 Monroe, 91 ; Gray v. The State of Ohio, 4 Hamm. Ohio Eep. 353. (But it has been held, that the declarations of a slave in respect to Ms health are admissible, to show the effects of a blow upon his head (Biles v. Holmes, 11 Ired. 16) ; and the general' rule undoubtedly is that slaves are not competent witnesses.) It may also be proper to mention here another case, which does not range itself under any of the heads in the text. It has been seriously questioned whether, where a single judge consti- tutes the court, his testimony is receivable ; and it wovdd seem not to be. Ross v. Bughler, 2 Mart. Lou. Rep. (N. S.) 312. See also People v. Miller, 2 Parker 0. E. 197. CH. II.] From Defect of Understanding. 9 tliat namely, arising from conviction of crime and that arising from gen- eral interest in the cause, has been from time to time, and especially of late years, much questioned; but both these grounds of incompetency have been at length entirely abrogated by the statute 6 & 7 Vict. c. 85, (Lord Denman's Act,) the provisions of which will be more fully adverted to hereafter. CHAPTEE II. OP INCOMPETENCY FEOM DEFECT OP UNDERSTANDING. It is proposed now to examine separately the several causes of incom- petency which have been mentioned. And 1st, of incompetency from de- fect of understanding. Persons who have not the use of reason are from their infirmity utterly incapable of giving evidence, and are therefore excluded as incompetent witnesses. Incompetency from defect of understanding may arise, where there is a natural deficiency of the intellect, as in the case of idiots ; or where the intellect has become disordered, as in the case of insane per- sons ; or where the intellect is immature, as in the case of children. An idiot is one who, from his nativity, is by a perpetual infirmity non compos mentis ;{\) such a person is wholly incapable of giving evidence. But persons born deaf and dumb, (although it has been said that in pre- sumption of law they are to be considered as idiots,)(2) are not on this (1) Co. Lit. 241, a. Note 4. — Livingston v. Kiersted, 10 John. Eep. 362. When a witness is objected to as incom- petent on the ground of mental derangement, the party objecting has the right to call witnesses and prove the fact. The want of reason renders the person incompetent ; but this incapacity must be shown to the court by proof, lilce any other charge of incompetency. But when a person is called as a witness, who is at the time in a state of intoxication, the court have the power to decide from their own view of the situation of the witness offered, whether he be intoxicated to such a degree that he ought not to be heard. Hartford v. Palmer, 16 John. Eep. 143. A person totally deprived of memory or understanding, or who is suffering under a temporary privation of them when produced to be sworn, is not an admissible witness. Not having the present use of his faculties, he is not capable of retaining in his memory the facts or events in relation to which he is called to testify, nor is he capable of taking upon himself the obligation of an oath. But if he have a present capacity, he is not incompetent, though he has been judicially declared an habitual drunkard, and his estate committed to trustees. Gebhard v. Shindle, 15 Serg. & Eawle, 235. It is enough if he be competent at the time of examination. Id. 238. And it is sufficient to exclude him, if he be at the time drunk, insane, an idiot, or a lunatic. Ellis, J., in Phebe v. Prince, Walk. Eep. 131. The party objecting must, in general, prove the incompe- tency of the witness (The State v. HoUoway, 8 Blackf. 45) ; and it has been held that he cannot prove the witness's intemperate habits in order to impeach him (Thayer v. Boyle, 30 Maine E. 475) ; and that it is no objection to the competency or credibility of a witness that he is subject to fits of derangement, if he is sane at the time of giving testunony. Evans v. Hallock, 1 Wheat. 463 ; James v. Stonebanks, Code Eep. 227. (2) 1 Hale P. C. 34. 10 Of Incompetency [CH. II, account incompetent : and if it appear, that they liave sufficient under- standing and know the nature of an oath, they may give evidence by signs, through the medium of an interpreter ;(1) or if they are able to write, their testimony will be taken in writing, as the more certain mode.(2) A person, however, who is born deaf, dumb and blind, is still looked upon by the law as in the same state as an idiot, being supposed incapable of any understanding, as wanting aU those senses which furnish the human mind with ideas.(3) Persons who have becomg permanently deranged in intellect, are in- competent ; but lunatics, and persons afflicted only with occasional fits of insanity, although incompetent while under the influence of their malady, may yet be witnesses in their lucid intervals, if it be satisfactorily shown that they have sufficiently recovered the use of their understanding .(4) There is no precise age fixed, at which children are excluded from giv- ing evidence. At one time, indeed, their age was considered as the crite- rion of their competency, and it was a general rule that none could be admitted under the age of nine years, very few under ten ;(5) which in (1) Eushton'a Case, 1 leach C. C. 456. Note 5. — Though the person cannot talk, he may be sworn as a witness if it appear that he is able to communicate facts and circumstances by arbitrary signs and motions, and has suflBcient understanding. But the declarations of an injured female, of sufficient age (on an indictment for rape), who cannot talk, but communicates her ideas to others by signB, and is a competent witness though of a weak understanding, cannot be given in evidence by the prosecution to prove the offence committed. The People v. MoGee, 1 Denio Eep. 19. Declarations made by her imme- diately after the alleged offence may be proved, after she has been sworn and given her testi- mony ; not as confirmatory of the truth or falsity of her evidence, but as affecting the credibility of her testimony. The rule is, that when the person upon whom the offence is charged to have been committed, is incompetent, by reason of infancy, idiocy, insanity and the like, to be sworn and give evidence as a witness, no evidence of the assertions or declarations of such person, de- scriptive of the offence or the offender, can be received in evidence. Keg. v. Guttridge, 9 Carr. & Payne, 411 ; Beg. v. Megaon, Id. 428 : 1 Denio B. 24. (2) Morrison v. Lennard, 3 Car. & P. 127. (3) 1 Bl. Com. 304 ; 2 Steph. Com. 630. (4) Com. Dig. tit. Testmoigne, A. 1. (5) B. V. Travers, 2 Stra. 700, and cases in East P. C. 442 ; 1 Hale P. C. 302 ; 2 Hale P. C. 218. Seein^a. Note v. — ^There is no particular age at which a witness must have arrived to render him com- petent to testify; if he appear, on examination by the court, to have a iufficient sense of the wickedness of false swearing, he may be sworn, although of never so tender an age, and the jury are to judge of his credit. Commonwealth v. Hutchinson, 10 Mass. Eep. 226 ; The King v. Rose Kelly, Macnally, 164 ; Swift's Bv. 46. In order to test the capacity of infants to give evi- dence, and their understanding of the nature and obligation of an oath, the court may examine them as to their religious knowledge or belief. Jackson ex dem. Tuttle v. Gridley, 18 John. Eep. 98 ; 2 Eev. Stat, of N. T. 408, § 89. If the witness be fourteen years of age, he ia not in- terrogated respecting his capacity, but is presumed to have euffioient knowledge and discretion to be sworn, unless some ciroumstanoea creating suspicion be shown. Den v. Van Oleve, 2 South. Sep. 589 ; State v. Doherty, 2 Tenn. Eep. 80. But if he is under that age, it is a subject of discretion in the court to admit him or not. Van Pelt v. Van Pelt, 2 Penning. Eep. 65T. The testimony of an infant seven years old, corroborated by circumatauoes, has been held sufficient to CH. n.] From Defect of Understanding. 11 some cases would operate to deprive them of the protection of law against acts of violence.(l) A more reasonable rule has since been adopted, and the competency of children is now regulated, not by their age, but by the degree of understanding which they appear to possess. In Brazier's Case, on an indictment for assaulting an infant five years old with intent to ravish her, all the judges agreed, that children of any age might be examined upon oath, if capable of distinguishing between good and evil, and possessing sufficient knowledge of the nature and consequences of an oath ; but that they could not in any case be examined without oath.(2) This is now the established rule, as well in criminal as in civil cases, and it applies equally to capital offences and to offences of an inferior nature. It may be presumed, however, that this rule, that a child cannot be ex- amined without oath, would not be strictly applied in cases where the legislature has permitted evidence to be given upon affirmation, as in the instances of Quakers, Separatists, and some other non-conformists. In such cases it cannot be doubted that a child, if shown to have been duly edu- cated in the religious tenets of its parents, would be permitted to make affirmation, upon the same principle as the parents themselves. According to this rule, the admissibility of children depends not merely upon their possessing a competent degree of understanding, but also, in part, upon their having received such a degree of religious instruction as not to be ignorant of the nature of an oath, or of the consequences of false- justify a conTiction for a capital offence. State v. Le Blanc, 1 Const. Bep. 354. But a child only four years old cannot have that idea of a future state which would make it a competent witness. Rex v. Pike, 3 Carr. & Payne, 598. The credit of a witness, which ia greatly impaoied by his age, is to be judged of by the jury from hia manner of testifying and other circumstances. Commonwealth v. Hutchinson, 10 Mass. Bep. 225 ; State v. Doherty, 2 Tenn. Eep. 80. Note 8. — In one case, where a child nine years old, though very intelligent, did not under- stand the nature of an oath nor the moral penalty of false swearing, the court instructed her on the spot, and then allowed her to be sworn. Jenner's Caae, before Eadoliff, Mayor, 2 0. H. Eec. 147, 148, 149. A child eight years old being called, it appeared that, to within sixteen weeks of the trial, she had never heard of a Grod, or of a future state of rewards and punishments ; that she never prayed or knew the nature of an oath ; but since, a clergyman had twice visited and instructed her in the nature of an oath. Patteson, J., rejected her, saying he must be satisfied that she felt the binding obhgation of an oath from the general course of her religious education ; that the effect of an oath upon the conscience of the ctuld should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath recently communi- cated for the purpose of the trial Sex v. Williams, 1 Carr. & Payne, 320. (But in this case, it appeared clearly that the child did not comprehend the nature of an oath, nor rightly appre- hend what waa meant by a future state. In Regina v. Perkins, (33 Bng. Com. Law Eep. 168,) the dying declarations of a boy a little over ten years of age were received in evi- dence, it appearing that he waa aware he would be punished if he stated what waa untrue, and that he waa not likely to live tiU morning. 9 Carr. & P. 396. The age of the child is imifla- terial; but if he be of tender years, it is the duty of the court to examine biin aa to hia knowl^ edge of the nature and obligation of an oath. The People v. MoNair, 21 Wend. 608.) (1) B. N. P. 293. (2) 1 Leach C. C. 199; 1 East P. C. 443 ; B. N. P. 293. See also B. v. Perkin, 2 Moo, C. C. 139. 12 . Of Incompetency [CH. II. hood. In one case, wliere a child aged eight years was called as a witness, who, up to the time of the event to which she came to speak, had received no religious instruction, nor had ever even heard of a God ; and who, in the interval before the trial, a period of about sixteen weeks, had been twice visited and instructed by a clergyman as to the nature and obliga- tion of an oath, yet, at the time of the trial, appeared still to have no real understanding on the subject of religion or a future state, Patteson, J., rejected her testimony.(l) In criminal cases, where a child, who is a necessary witness for the prosecution, appears not sufficiently to understand the nature and obliga- tion of an oath, it is competent to the judge to postpone the trial, that the child may be in the meantime properly instructed. (2) But an application to postpone the trial upon this ground ought properly to be made before the child is examined by the grand jury ; at all events before the trial has commenced ; for if the jury are sworn, and the prisoner is put upon his trial before the incompetency of the witness is discovered, the judge cannot discharge the jury, but should direct an acquittal.(3) The postponement of a trial for this purpose rests entirely in the discretion of tlie judge. In a recent case, (4) where a prisoner was indicted for committing a rape upon a girl under six years of age, Pollock, C. B., refused to postpone the trial in order that the child, who appeared to be wholly unacquainted with the nature of an oath, might receive proper religious instruction, saying, "I can conceive that there may be cases where the intellect of the child is much more ripened, as in the case of children of nine, ten or twelve years old, for example, where their education has been so utterly neglected that they are wholly ignorant on religfous subjects. In those cases a postponement of the trial may be very proper ; but where the infirmity arises from no neglect, but from the child being too young to have been taught, (5) I doubt whether the loss in point of memory would not more than countervail the gain in point of religious instruction. I lay down no general rule, as there may be cases where a postponement would be proper." In a still later case,(6) where a father was charged with the violating of his daughter, aged twelve, Alderson, B., refused to postpone the trial for the purpose of her being taught the nature of an oath, stating that all the judges were now (1) R. V. 'Williams, 7 C. & P. 320. (2) 1 leaoh, 430, u. ^ The judge may, in his discretion, postpone the trial, in order that the witness may be in- Btruoted as to the nature of an oath ; but whera the child is wholly destitute of religious educa- tion, he cannot be rendered competent by being superficially instructed just before a trial, with a yiew to qualify him ; and the current of opinion is against the practice. Powell's Law of Ev. 19. _ (B) R. V. Wade, 1 By. k Mo. C. C, 86. In this case the witness waa an adult possessed of suf- ficient intellect, but wholly without rohgious instruction. (4) R. V. Nicholas, 2 0. & Kir. 246. (5) See R. v. Pike, 3 0. & P. 698. (6) R. V. Hall, 0, B., 30 Nov. 1849. CH. II.] From Defect of Understanding. . 13 of opinion ttat it was an incorrect proceeding ; that it was lite preparing or getting up a witness for a particular purpose, and on that ground was very objectionable.(l) Where a child is unfit to be sworn, it follows, as a necessary conse- quence, that any account of the transaction, which it may have given to others, ought not to be admitted. On an indictment, therefore, for a rape on a child five years old, where the child was not admitted as witness, but an account of what she had told her mother about three weeks after the transaction, was given in evidence by the mother, and the jury con- victed the prisoner, principally, as was supposed, on that evidence, the judges, in a case reserved for their opinion, thought the evidence clearly inadmissible, and the prisoner was accordingly pardoned :(2) for the prin- ciple of the admissibility of such a statement is, that it is confirmatory of the testimony of the witness. In Brazier's Case,(3) a different rule was laid down, but at that time the law was not so well settled as it has since been.(4) "With regard to the weight and effect of the testimony of children, Sir W. Blackstone observes,(5) "that when the evidence of children is admitted, it is much to be wished, in order to render the evidence credible, that there should be some concurrent testimony of time, place and circumstances, in order to make out the fact ; and that a conviction should not be grounded on the unsupported accusation of an infant under years of discretion." In many cases, undoubtedly, the statements of children are to be received with great caution ; but it is clear a prisoner may be legally convicted upon such evidence alone and unsupported ; and whether the account of a child requires to be corroborated in any part, or to what extent, is a question exclusively for the jury, to be determined by them on a review of all the circumstances of the case, and especially of the manner in which the evidence of the child has been given. It may be observed, the preliminary inquiry, usually made for ascer- (1) The prisoner was in consequence acquitted. By the strict application of this rule, a parent by neglecting his moral duty as to the education of his child, may thus obtain an immunity for the commission of a heinous crime. (2) R. V. Tucker, 1808, MS.f R. v. Guttridge, 9 C. & P. 412; R. y. Megson, Ibid. 420; E. v. Nicholas, 2 0. & Kir. 426. Beclarations as to the health or physical condition of the child may be admissible. Biles v. Holmes, 11 Ired. 10. But such declarations cannot be proved to establish the offence. The People V. McGee, 1 Denio R. 19. (3) 1 Leach C. 0. 199 ; Supra, p. 11. (4) See by Parke, B., in R. v. Guttridge, ut sv^ra. (5) 4 Com. 214. Whether the child should be received as a witness, is for the court to decide ; but the weight and credibility of his testimony is to, be determined by the jury, as in other cases. And since no religious opinions will disqualify a person to be sworn as a witness in this state, the true inquiry is whether the child understands the nature of an oath, or has sufficient intelligence to under- stand the consequences of false swearing. If that appears affirmatively, the child should be sworn, and hia evidence submitted to the jury. See Constitution of N. T., Art. 1, § 3. 14 Of Incompetency [CH. iii. taining their competency, is not always of tlie most satisfactory nature, and sometimes is of such a description that, merely by a very slight prac- ticing of the memory, a child might be made to appear competent and qualified as a witness. The inquiry is commonly confined to the ascer- taining of the fact, whether the child has a conception of Divine punisk- ment being a consequence of falsehood ; it seldom extends so far as to ascertain the child's notions of the nature of an oath, and scarcely ever relates to the legal punishment of perjury. It has been held, however, that the effect of the oath on the conscience of a child should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath, which have been communicated with reference to the trial.(l) Independently of the sanction of an oatb, the testimony of children, after they have been subjected to cross-examination, is often entitled to as much, credit as that of grown persons; what is wanted in the perfection of the intellectual faculties, is sometimes more than compensated by the absence of motives to deceive. In a late case, (2) Wilde, C. J., is reported to have said, that it would be always desirable, where a person of weak intellect is examined before a magistrate in a case of felony, that the magistrate's clerk should take down in the depositions the questions put by the magistrate, and the answers given by the witness, as to the capacity of the latter to take an oath. In that case the witness, who was twenty-eight years old, was of weak intellect, and at the trial appeared not at all to understand the nature of an oath, nor to have an idea of a future state; but the depositions were in the usual form, and did not show that any inquiry had taken place into the competency of the witness in point of intellect. CHAPTEE III, OF INCOMPETENCY FROM DEFECT OF RELIGIOUS PRINCIPLE. ■Witness must be sworn. It is an established rule, that all witnesses who are examined upon any trial, civil or criminal, must give their evidence under the sanction of an oath. This rule is laid down as an acknowledged proposition by some of our earliest writers ;(3) and it appears to be of universal application, (1) R. v. ■Williams, 1 0. A P. 320. (2) R. V. Painter, 2 0. 4; Eir. 319, (3) Shep. Abridg. tit. Tiyal, CH. III.] From Defect of Religious Principle. . 15 except in the few cases in which a solemn afOrmation has been allowed by statute in the place of an oath. No exemption from this obligation can be claimed in consequence of the rank or station of a witness. A peer cannot give evidence unless sworn ;(1) and the same appears to be the case in regard to the king himself,(2) although in one case King James the First certified to the chancellor, under his sign manual, the substance of the promise made by the defendant to the king, and the certificate was admitted without objection.(3) But "Willes, 0. B.,(4) states that, except in that case, the king's certificate, under his sign manual, has always been reiused.(5) The rule also holds even in the case of a judge,(6) or juryman,(7) who happens to be cognizant of any fact material to be communicated in the course of a trial. And although the jury are entitled to use that general knowledge, which any man may bring to the subject, (as in the instance of the value of any article,) yet if any one of the jurors has any particular knowledge on the subject, arising from his being in a certain trade or otherwise, he ought to be sworn and examined as a witness.(8) A striking exception to this rule formerly prevailed in the case of wit- nesses for prisoners accused of treason or felony, who were not permitted to give evidence upon oath ; but this unreasonable and unjust distinction was abolished soon after the revolution.(9) At one time it was thought that a child, who was incapable of under- standing the nature of an oath, might be examined without being sworn, (10) but it is now settled, as shown in the preceding chapter, that the statement of a child cannot be received except upon oath, and that where the child is incapable of understanding the nature and obligation of an oath, its tes- timony will be rejected. A witness, in taking an oath, must be understood to make a formal and solemn appeal to the Supreme Being for the truth of the evidence which (1) Ld. Shaftesbury v. Ld. Digby, 3 Keb. 631 ; E. v. Ld. Preston, 1 Salk. 2'78. See also How. St. Tr. 772, u. ; 7 Id. 874, 1458 ; 11 Id. 459 ; 16 Id. 1252. But a peer may put in hia answer to » bill in chancery upon his honor (Meers t. Ld. Stourton, 2 Salk. 512 ; S. C, 1 P. Wms. 146) ; in the same manner as he gives hia yerdict in the House of Lords ; 2 Inst. 49. (2) 2 Boll. Ab. 686. (3) Abigny v. Clifford, Hob. 213. (4) In Omiohund v. Barker, Willes' Rep. 560. (p) See furtherupon this subject, Lord Campbell's lives of the Chancellors, Vol. 2, pp. 610, 511. (6) Kel. 12, Trial of the Eegicides. See also 5 How. St. Tr. 1181, n. (7) Bennett v. Hertford (Hundred), Sty. 233 ; Pitzjames v. Moys, 1 Sid. 133 ; Kitchen y. Manwaring, cit. And. 321, and see R. y. Sutton, 4 M. & S. 632, 537, n. ; 6 How. St. Tr. 1612, n. ; 18 Id. 123. (8) R. v. Rosser, 7 C. A P. 648. See also Manley v. Shaw.C. & Marsh. 361. (9) See 7 & 8 Wm. HI, c. 3 ; 1 Ann, St. 2, c. 9. See 3 Inst. 79j 2 Hale P. 0. 283 ; 4 BL Com. 359. (10) a Hale P. C. 634. 16 Of Incompetency [CH. in. he is about to give, and further, to imprecate the Divine vengeance on his head, if what he shall say be false.(l) (1) By Lord Hardwicke, 1 Atk. 49. For the definition of an oath by our old writers, Bracton, Britton, Fleta and others, see 1 Atk. 22. Note 9. — A witness who declines swearing on the New Testament, though he profess Christi- anity, may be allowed to swear on the Old Testament, if he considers that mode binding on his con- science. Edmonds v. Rowe, Ry. & Mood. N. P. Rep. 11. In New York, the legislature hayemade the following proyisions in regard to the ceremony, or form of administering an oath : 1. The usual mode of administering an oath shall be by the person who swears, laying his hand upon, and kissing the Gospels. 2 Rev. Stat. iOT, § 82. 2. Every person who shall desire it, may be permitted to swear in the following form : "You do swear in the presence of the ever living God;" and while so swearing, such person may, or may not, hold up his hand, at his discretion. Id. § 83. 3. Every person who shall declare that he has conscientious scruples against taking any oath, or swear- ing in any form, shall be permitted to make his solemn declaration or affirmation, in the following form: "You do solemnly, sincerely, and truly, declare and affirm." Id. § 84. 4. Whenever the court is satisfied that the witness has any peculiar mode of swearing, connected with, or in addition to, the laying of his hand upon the Gospels, and kissing the same, which is more solemn and obligatory in the opinion of the witness, the court may adopt such mode of swearing him. Id. § 85. 5. Every person believing in any other than the Christian religion, shall be sworn according to the peculiar ceremonies of his rehgion, if there be any such ceremonies, instead of the modes above prescribed. Id. 408, § 8G. The court may interrogate the witness as to the form. Id. § 89. See VaU v. Niokerson, 6 Mass. Rep. 262, and United States v. Coolidge, 2 Gall. Eep. 364. Note 1 0. — This subject came before the Supreme Court of the state of New York, in the case of Jackson ex dem. Tuttle v. Gridley, (18 John. Rep. 103.) In that case it was proved that a person offered as a witness, had within three months before the trial, often, deliberately and pub- licly, declared his disbelief in the existe'nce of a God, and a future state of rewards and punish- ments, and the rule adopted by the court was, that all who did not believe in a God, or if they did, did not think that he would either reward or punish them in tlie world to come, were incompe- tent witnesses, in any case, or under any circumstances, because an oath could not be any tie or obhgation upon them. In a subsequent case, the true test of a witness's competency, on the ground of his religious principles, is said to be, " whether he beli«ves in the existence of a God who will punish him if he swears falsely." Butts v. Swartwood, 2 Cowen's Rep. 431. Within this rule are comprehended those who beheve future punishments not to* be eternal. In The People V. Matteson, tried before Walworth, circuit judge (2 Cowen's Rep. 432, in note a), and in an anonymous case, before WilUams, circuit judge (2 Cowen's Rep. 672), it was held, that all persons who believe in the existence of a God, and in future punishments by him, either in Viis world, or in that to come, are competent witnesses. The same doctrine is held by the Supreme Court of Massachusetts. Hunscomb v. Hunsoomb, 15 Mass. Rep. 184. And this is the rule now established in New York by statute. 2 Rev. Stat. 408, § 87. In Connecticut and Tennessee a person who does not believe in the obligation of an oath, and in a future state of rewards and punishments, or any accountability after death, is inadmissible as a witness. Curtis v. Strong, 4 Day, 61 ; S. C, Swift's Ev.48; State v. Doherty, 2 Tenn. Rep. 80; State v. Cooper, Id. 96. And within this rule a Uniyersalist is incompetent. Atwood v. Wetton, 7 Conn. Eep. 66. One wit- ness had often declared he did not believe in the existence of a God or a future state ■ another had declared that he did not believe in the latter, had read Tom Paine's works, and did not know whether he (the witness) believed anything. Story, J., rejected both as incompetent. Wakefield v. Ross, 5 Mason, 16, 18, 19, note. See Christian's note to 3 Bl, Com. 369, and Swift's Ev. 49, 50. Wo have noticed, ante, the character of religious belief essential to a witness, and the mode ot proof. The courts in New Hampshire cited and adopted the principle of the New York cases, cited in Norton v. Ladd, 4 New Hamp. Rep. 444. It was in proof by third persons, that ^lie wit- ness had several times, and shortly before the trial, deliberately disavowed his belief in the exist- CH. III.] From Defect of Religious Principle. 17 An examination upon oatli implies that the witness should go through a ceremony of particular import. But the particular form or ceremony, which is quite distinct from the substance of the oath itself, varies in dif- ferent countries, and according to different forms of religion. In England, the customary form in which an oath is administered to Christians consists, as is well known, in calling upon the witness to declare the truth, the whole truth and nothing but the truth, as he may be helped by God, and requiring him to touch with his right hand and to kiss the four Gospels. Form not material, if oath binding on conscience. If the same form of oath were required in all cases, without reference to the religious opinions of witnesses, some might refuse to comply with it from conscientious scruples, and their evidence would be excluded ; while others might attach no binding force to the prescribed form ; thus the ob- ject of the law in requiring a religious sanction would be entirely defeated. The rule of our law, therefore, is, that witnesses may be sworn according to the peculiar ceremonies of their own religion, or in such manner as they consider binding on their consciences.(l) Jews have accordingly been sworn in our courts from a very early period on the Pentateuch, and they take the oath with the head ,covered.(2) A Mahometan is sworn upon the Koran .'(3) The deposition of a Gen too has been received, who touched with his hand the foot of a Bramin.(4:) A Chinese has been sworn by the ceremony of his breaking a saucer, and declaring that if he did not speak the truth his soul would be cracked like the saucer.(5) A Scotch cove- enoe of a God. He was rejected as incompetent. It was doubted in Ohio, whether a defect in religious belief should go to the competency or merely the credibility of the witness. The objec- tion was raided, and it was shown by third persons, that the witness's creed, so far as collectible from his conversation, was as follows : he said he did not believe in the existence of a God ; but added that he saw God in trees, bushes, herbage, and everything he saw ; that a man would be punished for falsehood by his conscience, and in this hfe only ; that a man is bound to speak true' at all times, and an oath imposes no additional obhgation. The court held, that it was unneces- sary to inquire whether, in Ohio, the same rule should prevail as in England; for, if it should, the witness was competent Wright, J., said, the court thought his declarations equivalent to an avowal of belief in the existence of a God. " He sees him in all created nature." Easterday v. . Kilborn, 1 Wright, 345, 346. A person who does not believe in future rewards and punishments, but that our evU deeds will all be punished in this world, and that we shall exist immortal in a future state, exempted from punishment for deeds done in the body, is a competent witness. Farnandis v. Henderson, in chancery before Ch. Dessaussure, Aug. 1827, South Car. Law Jour- nal, 202. (1) This was so at common law (see Omyohund v. Barker, 1 Atk. 21), and it is now expressly so enacted by stat. 1 & 2 Vict. c. 105. (2) 1 Atk. 40, 42 ; Willes, 543 ; Cowp. 389. (3) Morgan's Case, 1 Leach C. C. 64, by Gould, J., delivering the opinion of a'l the judges j Cowp. 390 1 Fachina v. Sabine, 2 Stra. 1104. (4) See Omychund v. Barker, 1 Atk. 21. (5) R. V. Bntrehman, C. & Marsh. 249; R. v. Alsley, 0. B. Sesj. 180i; Peake Evid. 141, a (5th ed.) Vol. I. 2 18 Of Incompetency [CH. III. nanter, and a member of the Kirk, have been allowed to take the oath, by holding up their hands without kissing the book.(l) Whatever be the form, the meaning of the oath is the same. It is an appeal to God, calling upon him to witness what we say, and invoking his vengeance, if what we say be false.(2) The same indulgence that is allowed in the case of different religions and sects of religion, has also been extended to the conscientious scruples of individuals, who have objected to be sworn in the manner usually adopted by persons of their own religion or sect. Thus, in an old case, where a witness, who was vice-chancellor of Oxford, refused to be sworn in the usual form by laying his right hand on the book and kissing it, Glin, C. J., ruled, that he might be sworn by having the book laid open before him, and holding up his right hand.(3) " In my opinion," said the chief jus- (1) By Gould, J., in Mildrone'3 Case, 1 Leach C. C. 459 ; "Walker's Case, Id. 498 ; Mee v. Eeid, 1 Peake N. P. 0. 22. (2) Forma jusjurandi verbis differt, re oonvenit ; huno enim sensmn habere debet, ut Deus invooetur. Grotius, L. 2, c. 13, § 10. Note 11. — (A person who does not believe in the existence of a God is an incompetent wit- ness. Thurston v. "Whitney, 2 Cush. 104. But the objection to his competency should be taken before he is sworn ; though bis disbelief may be shown after, he has testified, to affect his credi- bility: The People v. M'Garren, 1'? "Wend. 460. And the incompetency of the witness from defect of religious belief, may be shown by proving his conversations or declarations on the sub- ject. Barthelemy v. The People, 2 Hill R. 248. It is not necessary that a person should believe in a future state of rewards and punishments to render him a competent witness. It is enough if he beUeves in the existence of a God who win punish him if he swear falsely. Butts v. Swartwood, 2 Cowen R. 431. And hence an infi- del who believes in a God, and that he will reward and punish him in this world, but does not believe in a future state, may be examined upon oath. Omichund v. Barker, "Willes, 550 ; 2 Cowen, 431.) A witness cannot be compelled to declare his belief (2 Revised Statutes of N. T. 408, § 88), but this may be proved by other witnesses. Id. Jackson ex dem. Tuttle v. Gridley, 18 John. Rep. 98 ; Butts v. Swartwood, 2 Cowen's Rep. 431 ; Curtis v. Strong, 4 Day, 51 ; Beardsley v. Poot, 2 Root's Rep. 399 ; Bow v. Parsons, 1 Id. 480 ; State v. Cooper, 2 Tenn. Rep. 96. Slight or unguarded expressions will not, however, be sufficient to exclude a witness. State v. Cooper, 2 Tenn. Rep. 96. After the incompetency of the witness from defect of religious belief, is satis- factorily established, by proof of his declarations out of court, he will not be permitted to deny or explain such declarations or his opinions, or to state his recantation of them, when called to be sworn. But he may be restored to liis competency, on giving satisfactory proof of a change of opinion before the trial, so as to repel any presumption, arising from his previous declarations of infidelity. Jackson ex dem. Tuttle v. Gridley, 18 John. Rep. 98 1 Curtis v. Strong, 4 Day 51. In "Wakefield v. Ross, the defendant made out a case of defective religious belief against two witnesses, when the plaintiff's counsel suggested that they might be personally examined • but Story, J., said the defendant's counsel were not bound to rely on the testimony of these persons for proof of incompetency. "Wakefield v. Ross, 5 Mason, 19, note. The above doctrines are in substance, adopted by the Revised Statutes of New York. 2 R. S. 408, § 88. But a person, apparently of weak understanding, may be examined as to the extent of his religious knowledge, id. § 89. See Swift's Ev. 49, 50, and Christian's note to 3 Bl. Com. 369. (In this state, no person can be rendered incompetent to be a witness on account of his opinions on matters of religious belief. Art. 1, § 3 of the Constitution of 1846. And the same rule has been adopted very generally in the other states.) (3) Button T. Colt, 2 Sid. 6. CH. III.] From Defect of Religious Principle. 19 tice, " he has taken as strong an oath as any other witness." In one case, a witness who professed Christianity, but objected to be sworn on the Gospels, was allowed to be sworn on the Old Testament, on his stating that he considered an oath so administered to be binding on his con- science.(l) A Jew who has made no formal renunciation of Judaism, but professes himself to be a Christian, may be sworn on the Gospels.(2) And in a case where a new trial was moved for, on the ground that a witness, who had been sworn on the Gospels in the usual manner, had since been discovered to be a Jew, the Court of Common Pleas refused the rule, and were unanimously of opinion, that the oath taken was binding on the witness, both as a moral and religious sanction.(3) Eeligioua belief The law requires that the witness should acknowledge the force of an oath in imposing a religious obligation upon him to speak the truth. It is therefore essentiai to the admissibility of a witness, that he should be- lieve in the existence of a God, by whom truth is enjoined and falsehood punished. Without such belief, one sanction, which the law regards as a material security for truth, namely, the fear of Divine punishment invoked by the witness upon himself is wanting. It is not sufficient, that a wit- ness believes himself bound to speak the truth from a regard to character or to the common interests of society, or from, a fear of the punishment which the law inflicts upon persons guilty of perjury.(4) Such motives have indeed their influence, but they are not considered as affording a sufficient safeguard for the strict observance of truth : our law, in com- mon with the law of most civilized countries, requires the additional se- curity afforded by the religious sanction implied by an oath, and, as a necessary consequence, rejects all witnesses who are incapable of giving this security. Atheists, therefore, and such infidels as profess not any religion that can bind their consciences to speak truth, are excluded from being wit- nesses.(5) Doubts formerly existed with respect to Jews and the inhab- itants of countries professing religions different from Christianity. Lord Coke says generally, that it is an objection to a witness if he be an in- fidel,(6) under which denomination he intended to comprise Jews as well as heathens.(7) And Sergeant Hawkins thought, that a witness who be- (1) Edmonds v. Rowe, Ey. & Mo. N. P. C. 77. {2) E. V. ailham, 1 Esp. N. P. C. 285. (3) Sells T. Hoare, 3 Bro. & B. 232. ♦ (4) Eushton's Case, 1 Leach C. C. 455. (5) Bui. TS. P. 292 ; Gflb. Eyld. 129 ; 1 Atk. 40, 45, 48. (6) Co. Lit. 6, 6. (■?) 2 Inat. 506 ; 3 Inst. 165 ; 1 Atk. 43 ; Willes, 641. It was formerly laid down, on the authority of Sir E. Coke, that exoommunioated persons were not competent; on the ground that being excluded from the church, they could not be under the influence of any religion. Att 20 Of Incompetency [CH. ill, lieved in neither the Old nor the New Testament, was incompetent.(l) But Lord Hale was of a different opinion, and strongly points out the un- reasonableness of excluding indiscriminately all heathens from giving evi- dence.(2) All doubts on this subject have long since been set at rest, and it may now be considered as an established rule, that not only Jews, but infidels of any country, believing in a God who enjoins truth and punishes falsehood, ought to be received as witnesses ;(3) and they are to be sworn, as we have already seen, according to the form which is authorized by their country or their religion. The only means of ascertaining the competency of a witness, with refer- ence to religious principle, is by examining the party himself. The proper mode of examining for this purpose, it is said, is not to question the wit- ness as to his particular opinions, but to inquire generally whether he believes in the existence of a God and in a future state.(4:) In a case be- fore BuUer, J., where it was proposed to ask a witness, who had been sworn in the usual way, whether he believed in the Gospels on which he had been sworn, the question is said to have been overruled.(5) So in a recent case, where a negro called as a witness stated that he was a Chris- tian and had been baptized, the judge would not allow any further ques- tions to be put to him.(6) But although a witness may not be questioned as to his particular religious opinions, he may be asked, whether he con- siders the form of administering the oath to be such as wiU be binding on his conscience. The most correct and proper time for asking a witness whether the form of administering the oath is such as will be binding upon his conscience, is previous to the administration of the oath. But as it may occasionally happen that the oath is administered in the usual form, unobserved by the court or the counsel, the question in such case may properly be asked afterwards. And if, in answer to the question, the witness shall declare in the affirmative, namely, that he considers the oath, taken by him, to be binding upon his conscience, it would be irrelevant to ask further whether there be any other mode of swearing that would be more binding than that which has been used.(7) K the witness says he considers the oath to Gen. T. Oriffith, 2 Bulstr. 155. See B. N. P. 292 ; Gflb. Evid. 130, (Gth ed.) But this disability, if it ever existed, has been entirely remoyed by stat. 58 Geo. Ill, c. 127, §§2, 3, which enacts that persons excommunicated shall in no case incur any civil penalty or disability. (1) Hawk. P. 0. b. 2, c. 46, § 143. (2) 2 Hale P. C. 219. (3) See Omichund v. Barker, 1 Atk. 21 ; S. C, 1 Wils. 84; "WUles, 538, (4) It seems, however, that an infidel who believes in a God, and that lie will reward and pun- ish him in this world, though he does not believe in a future state, may be exammed upon oath. By "WiUes, 0. J., Omichund v. Barker, 'Willes, 560. (5) K V. Tajrlor, Peake N. P. C. 11. (6) E. V. Berva, 2 C. & Kir. 53, 56, before Piatt, B. (f) Eesolution of the judges, delivered by Abbott, C. J., in the proceedings on the Bill of Pains CH. III.] From Defect of Eeligious PriTudple. 21 be binding upon his conscience, lie affirms in effect, tliat in taking that oatli be has called the Supreme Being to witness that what he shall say will be the truth, and that he has imprecated the Divine vengeance upon his head if what he shall afterwards say is false ; and when this is done, it would be perfectly unnecessary and irrelevant to ask any further ques- tions.(l ) Such an acceptance of the oath not only imposes upon the wit- ness all its religious obligation, but, should he violate its sanctions, subjects him also to the temporal penalties consequent on the crime of perjury. And the fact of a witness having assumed a false name, and swearing in the common form upon the Gospels, but discovered after the trial to be a Jew, is therefore not a ground for a new trial. (2) The evidence of Quakers and members of other sects who refused to take a formal oath in any shape, was for a long time held inadmissible. Before the revolution, Quakers, who refused to take a legal oath, were treated as obstinate offenders and subject to penalties.(3) These hardships were removed by the Toleration Act, (4) which first allowed them to make a declaration of their fidelity to the state, instead of taking an oath of alle- giance, and exempted them from all pains and penalties on their making, if required, certain other declarations there prescribed. And by another statute, which passed about six years after, (5) their solemn affirmation in courts of justice was admitted, in civil cases, to have the same effect as an oath ; but they continued to be excluded from giving evidence in criminal cases(6) until a very recent period. This disability has now been entirely removed by the legislature,(7) and Quakers and Moravians are now al- lowed to give evidence upon their solemn affirmation in all cases, criminal and Penalties, August 24, 1820. In the case of the witness Gargiulo, p. 116 of the printed evi: denoe. 2 B. & B. 284. (1) By Abbott, C. J., on the same occasion, (2) Sells V. Hoare, 3 B. & B. 232. (3) 13 Car. II, c. 1. (4) 1 Wm. & M. c. 18, § 13. (5) 1 & 8 Wm. Ill, c. 34. (6) See 8 Geo. I, c. 6 ; 22 Geo. II, o. 46, § 36. (1) 9 Geo. IV, 0. 32. Note 12. — Under this statute, Quakers and Moravians are now competent in all cases, on the same affirmation as is allowed In New York. One who was not a Quaker, refusing to be sworn, on the ground of conscientious scruples, arising from a declaration formerly made, that he would not take an oath, was committed for contempt, the liberty to affirm being strictly confined to Quakers, by the laws and practice of Massachusetts. United States v. Coolidge, 2 GaHis. 364 (By 17 and 18 Vict. o. 125, § 20, it is enacted, " If any person called as a witness, or required to make an affidavit or deposition, shall refuse or be unwiUing, from alleged conscientious motives, to be sworn, it shall be lawful for the court or judge, or other presiding officer or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration." And this affirmation begins by declaring the opinion of the witness that the taking of an oath is not lawful, and concludes in very nearly the same language used in this state. By another section of the act, a false affirmation is declared the crime of perjury, to be punished in the same man- ner. § 89.) 22 Of Incompetency [CH. III. as well as civil. Their affirmation is to be of the same force and effect as an oath in the usual form, in all cases where an oath is by law required.(l) A similar statutory provision has been made in favor of a religious sect called Separatists.(2) A still more recent statute(3) provides, that any person who has been a Quaker or Moravian, and who entertains consci- entious objections to the taking of an oath, shall be allowed to make solemn affirmation and declaration in lieu of taking an oath, as fully as he might be allowed to do in case he still remained a member of either of these denominations of Christians, and this affirmation or declaration is made of the same force and effect as if an oath had been taken in the xisual form. In a late case,(4) where a special juryman objected to be sworn, upon the ground that he was of the persuasion of a Quaker, though he was not a member of the Society of Friends, Lord Abinger, C. B., allowed him to affirm ; and it is to be presumed, he would have adopted a similar course in the case of a witness.(5) (1) 3 & 4 "Wm. IV, c. 49. (2) 3&4"Win. IV, 0. 82. (3) 1 & 2 Vict. c. 11. See Doran's Case, 2 Moo. C. C. St. (4) Emmett v. Norton, 8 C. & P. 606. (5) Op Inoompetenot tbom Contiotion of Ceqie. — The former edition of this work con- tained a chapter on this subject, laying down the general rule in these terms : The conviction of an infamous crime, followed by judgment, disqualifies a person from giving evidence in our courts of justice ; and persons rejected for this cause, are said to be incompetent on account of the in- famy of their character. Vol. I, p. 14. Of the crimes which incapacitate, the general descrip- tion includes treason and felony, and every species of the crimen, falsi. Thus, a conviction for forgery will disquahfy, as wUl also aU offences tending to pervert the administration of justice, by falsehood or fraud. Of this nature are perjury, and subornation of perjury ; attaint of false ver- dict ; bribing a witness to absent himself, in order that he may not give evidence ; conspiring to procure the absence of a witness ; conspiring to accuse another person of a capital offence ; barratry. Id. IT. See also 1 Greenl. on Ev. § STS. But in order to exclude the witness as incompetent, his incapacity must be established by the production or proof of a judgment of a court of competent jurisdiction ; for it is the judgment which is received as the legal and conclusive evidence of his guilt. Id. § STS. Having attested a written instrument as a subscribing witness before conviction, his hand- writing may be proved afterwards, the same as if he were dead. Jones v. Mason, 1 Stra. 833. And though the general rule is that in actions between third persons his testimony must be ex- cluded (In re Sawyer, 2 Ad. & El. (N. S.) f 21), he is allowed in cases where he is a party, to make affidavits in exculpation or defence of himself, or for relief against an irregular judgment. Da- vis and Carter's Case, 2 Salk. 461 ; Rex v. Gardiner, 2 Burr. 1117. The competency of the witness may in general be restored, by reversal of the judgment, or by a pardon. The reversal of the judgment is proved in the same manner ns the judgment itself; and the pardon is proved by its production under seal. 1 PhiUipps on Bv. 21, 6th Amer. from 9th London ed. If the pardon be conditional, the performance of the condition must be shown. Brevidge's Case, 3 P. "Wms. 485. The pardon restores the party to all his rights, and is said to make the witness a new creature and give him a new capacity. And this is dearly so, where the incompetency is the conse- quence of the conviotion and judgment ; but where the disability is annexed to the conviction of a particular offence by the express words of a statute, the general rule Is that a pardon wiU not restore hia competency. Thus, if a man be found guilty on an indictment for perjury at com- CH. III.] From Conviction of Crime. 23 mon law, a pardon will make him a good witness: but if he be convicted of perjury, or subor- nation of perjury, on the statute of 5 Bliz. c. 9, he will not be rendered competent by a pardon ; for the statute expressly provides that he shall never be admitted to give evidence in any court of record, until the judgment be reversed. 1 Phaiipps on Ev. 21. The same statute has been adopted in New York. 2 R. S. 681. See Holridge v. GiUespie, 2 John. Ch. Eep. 35, note. The present edition of this work, coming out as it did after the passage of Lord Denman's Act (6 & 7 Tict. e. 85), leaves out the former chapter on the subject ; for by that act it is declared that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest. In this state, the statute provides that no witness can be excluded by reason of his interest in the event of the suit (Code of Procedure, §§ 398, 399), leaving the disqualifica- tion of persons sentenced upon a conviction for felony as it stood under tlie former statute. 2 R. S. 783, (3d ed.) See Carpenter v. Nixon, 5 HUl, 260, as to what crimes come within the statute. So that with us, as well as in this country generally, the law remains as it stood before, and the former decisions still continue pertinent. Greenl. E7. §§ 372-3 1[8. Note 13. — ^It is the nature of the crime, and not the punishment, which determines whether a convict is an admissible witness. A conviction of treason, felony, or any of the crimen falsi, renders the witness incompetent. People v. "Whipple, 9 Cowen's Eep. 707 ; Clark's Lessee v. Hall, 2 Har. & M'Hen. Rep. 378; People v. Herrick, 13 John. Rep. 82; Cushman v. Loker, 2 Mass. Rep. 118. AU pepBons convicted, and adjudged guilty of perjury, or subornation of per- jury, are, by statute in New Tork, absolutely disqualified from giving testimony, in any matter or cause whatever, untU the judgment be reversed. 2 Rev. Stat. 681, §§ 1, 4. And no person, sentenced upon a conviction for felony, shall be competent to testify in any cause, matter or pro- ceeding, civil or criminal, unless be be pardoned by the governor, or the legislature, exceptin special cases which are provided by law ; but no sentence upon a conviction for any offence, other than a felony, shall disqualify a witness. Id. 701, § 23. A felony by the same statute, is de- fined to be an offence for which the offender shall be liable to be punished by death, or by im- prisonment in the state prison. Id. 702, § 30. Offenders against the act to prevent duelling, are declared to be competent to testify against any other person offending in the same transac- tion, and are compellable to testify in the same manner as other persons. Id. 686, § 3. Con- victs imprisoned in the state prison are competent to testify against any other convict, for any offence committed whilst the accused and witness are both confined in prison. Id. 774, § 8. It is no objection to the competency of a witness, that he has been convicted of an assault and battery, with intent to commit murder, and has been sentenced to fine and imprisonment. United States v. Brockins, 3 Wash. C. C. Rep. 99. Otherwise in New Tork ; for there it is a felony. 2 R. S. 666, § 39, in connection with Id. 702, § 30, cited swpra. A person convicted of forgery, or other infamous crime, in one state, was held incompetent in another, within the provisions of the constitution of the United States, and the act of Congress declaring the effect of the records of one state in every other. State v. Candler, 3 Hawks, 393 ; State v. Ridgely, 2 Har. & M'Hen. 120 ; Clark's Lessee v. Hall, Id. 378; Cole's Lessee v. Cole, 1 Har. & John. 378. But it should appear that the foreign offence would disqualify at common law, or by some statute of the country. Clark's Lessee v. HaU, 2 Har. & M'Hen. 378. The above cases from the Mary- land Reports, Har. & M'Hen. and Har. & John., hold the same as to any foreign conviction. A different doctrine prevails in Massachusetts, even as to a neighooring state. Commonwealth v. Green, 17 Mass. Rep. 514. At common law, a conviction of petit larceny disqualified ; but whether this is so under the peculiar enactments of Ohio in 1832, quere. James v. Bostwick, 1 ■Wright, 142, 143. Note 14. — The conviction for an infamous crime, cannot be proved by the witness, on his voir dire, he not being bound to answer, nor would his answer be the best evidence of which the case is susceptible. People v. Herrick, 13 John. Rep. 82. Nor is parol testimony of the conviction admissible in any case, but the party objecting must have a copy of the record of con- viction, ready to produce in court. Id. ; Hilts v. Colvin, 14 John. Rep. 182. And it is not only necessary to show the conviction, but also the judgment, in order to disqualify the witness. People V. Whipple, 9 Cowen's Eep. 707 ; Oastellano v. Peillou, 2 Mart. Lou. Rep. (N. S.) 466; Cushman v. Loker, 2 Mass. Eep. 108 ; Skinner v. Perot, 1 Ashm. Rep. 57. But where a witness admitted, on his cross-examination, that he had been convicted of a felony, the court charged the jury that if he had not been corroborated, they should reject the evidence entirely. Orr's Case, 24: Of Incompetency hy reason of Interest. [CH. IV. CHAPTER lY. OF INCOMPETENCY BY EEASON OF INTEBEST. The third ground of incompetency is by reason of the witness being interested as a party to the action, or as the person in whose immediate and individual behalf the action is brought or defended. It was formerly the general rule that all persons interested, to however small a degree, in the event of a cause, should be excluded from giving evidence in favor of that party to whom their interest inclined them. before Golden, Mayor, 5 C. H. Eec. 181. It was also held, in Maryland, to be incumbent on the party objecting, to show that the witness did not serve the full term for which he was sen- tenced, such full service being adjudged to restore hi3 competency. Cole's Lessee v. Cole, 1 Har. & John. 5T2 ; State v. Ridgely, 2 Har. & M'Hen. 120. It should be noted that these deci- sions have reference to the Enghsh statutes cited in the text. The court, in The State v. Eidgely, cited supra, and in Clark's lessee v. Hall (2 Har. & M'Hen. 378), also determined, that parol evidence was admissible to prove the conviction and sentence, as well as all other circumstances necessary to render the witness incompetent. But a witness, though convicted and attainted, is not incompetent to make an affidavit to resist a motion (Davis v. Carter, 2 Salk. 461), or to found a motion. Skinner v. Perot, 1 Ashm. Eep. 51. So, it seems, his oath is admissible on a charge of assault and battery, and for surety of the peace, &c., or to hold to bail, or he would be utterly out of the protection of the law. Skinner v. Perot, 1 Ashm. Eep. 5*7. Note 15. — Competency may be restored by pardon, after the witness shall have served out the term of his imprisonment in the state prison ; yet no credit is due to him, unless he be cor- roborated by others, or by the oiroumstances of the case. United States v. Tom Jones, 2 Wheel. Cr. Cas. 451, 454, 455, 460, 461, before Thompson, J., case of piracy. The effect of a pardon is to acquit the offender of all the penalties annexed to the conviction, and to give him a new credit and capacity. Matter of Doming, 10 John. Eep. 232. A person having been convicted of forgery, and sentenced to the state prison for life, was par- doned by the governor. The pardon contained a proviso, that nothing in it should be construed " so as to relieve the prisoner of and from the legal disabilities to him, from the conviction, sen- tence and imprisonment, other than the said imprisonment." This proviso was held to be repug- nant to the pardon itself, and was rejected, and it was held that the prisoner was freed from all legal disabilities, and was a competent witness. The People v. Pease, 3 John. Cas. 333. Note 11. — Where a prisoner had been pardoned on condition of leaving the state for a speci- fied time, and the condition was not complied with, the court, after the expiration of the time, held the pardon to be void, and passed sentence. State v. Fuller, 1 M'Cord, 178. But where, in such case, it appeared that the prisoner had been insane, after the conditional pardon was granted, the court, upon his being seized and brought up for sentence, discharged him, upon con- dition of his departing within the same period originally limited in the pardon. The People v. James, 2 Caines' Eep. 57. For form of pardon, see Hoffman v. Coster, 2 Whart. 453, 468, 469. Note 18. — "It does not seem clear whether the restoration to competency, by suffering a sen- tence, has proceeded on the ground of incompetency being in the nature of punishment, or on the ground of a regenerating effect of punishment upon the moral feelings of the offender : in either point of view, the principle is not justified by sound reasoning or experience. On the general subject of incompetency of witnesses from infamy, see a treatise on the incompetency of witnesses by E. Whitcomb, Esq., A. D. 1824." Phil. Ev. 8th ed. 25, note 1. Sea Cole's Lessee v. Cole, 1 Har. & John. 572 ; State v. Ridgely, 2 Har. & M'Hen. 120. CH. IV.] The Old Law as io Interest. 25 This rule was founded ■upon a presumed want of impartiality in the interested witness. The exclusioiKof witnesses on account of interest was, under the old state of our law, much more frequent than for any of the other grounds of incompetency. The policy of the law on this subject was for a long time considered very questionable. It was the opinion of many eminent jurists that the pretended principle of the rule was neither just nor sound, and they insisted that there was no just ground for inferring that, in the gene- rality of instances, persons interested in the subject in controversy would be disposed, from a mere regard to their interest, to violate the duties of morality and religion, or to incur the penalties of the law by committing perjury ; and that, if they should be so disposed, they would probably not be successful in imposing upon the judge and jury, after strict cross- examination, before the public, in open court ; especially if the judge and jury acted upon that supposed principle of human nature, which is said, by Chief Baron Gilbert, to be the foundation of the rule, namely, that " there is more reason to distrust such biased testimony, than to believe it ;"(1) for where jealousy and distrust were likely to be so strong, the (1) Gilb. Ev. 722, (3d edit.) The changes lately made in the law of evidence have been similar in this state to those made in England ; and as they have been effected here and there also by degrees, as experience seemed to call for and justify them, it will be sufficient to note a few of the decisions on the several stat- utes, in the order of their passage, concluding with a summary of the common law rule. The rule of incompetency, on the ground of interest, was swept away in this state some ten years ago. N. T. Session Laws of 1848, p. 560. § 351. "No person offered as a witness, shall be excluded, by reason of his interest in the event of the action. , § 352. " The last section shall not apply to a party to the action, nor to any person for whose immediate beneiit it is prosecuted or defended, nor to any assignor of a thing in action, assigned for the purpose of making him a witness." See amendment to this section in 1851. The codiflers, proposing the above sections, make the following remarks in respect to the prin- ciple adopted by them, in their report to the legislature : " The abrogation of the rule which excludes a witness who has an interest in the event of the action, has been frequently proposed and discussed in this state. "We think the time has come for effecting it. The rule appears to us to rest upon a principle altogether unsound; that is, that the situation of the vritness will tempt him to perjury. The reason strikes at the foundation of human testimony. The only just inquiry is this : whether the chances of obtaining the truth are greater from the admission or exclusion of the witness ? Who that has any respect for the society in which he lives, can doubt that, upon this principle, the witness should be admitted ? The contrary rule implies that in the majority of instances, men are so corrupted by their interest, that they wUl perjure themselves for it, and that besides being corrupt, they will be so adroit as to deceive courts and juries. This is contrary to aU experience. In the great majority of instances the witnesses are honest, how- ever much interested, and in most cases of dishonesty the falsehood of the testimony is detected and deceives none. Absolutely to exclude an interested witness, is, therefore, as unsound in theory as it is inconsistent in practice. It is inconsistent, because the law admits witnesses, far more likely to be biased in favor of the party, than he who has merely a pecuniary interest. A father may testify for his son ; a child living with his father, and dependent upon his bounty, may appear as his witness, nay, as his only witness, without question. Is the immediate gain of a doUar, by the result of a cause, so potent to outweigh integrity, while affection, consanguinity, dependence, are put down as dust in the balance ? There is not another rule in the law of evi- 26 Lord BenmarUs Ad, [CH IV. dangfer of being deceived -would not be great. It was urged, also, that it was not reasonable, and scarcely consistent, to exclude some witnesses on account of a trifling pecuniary interest, so small, perhaps, as not to be supposed capable of producing a bias on their minds, when others were admitted without objection, though subject to the powerful influence of relationship, friendship, passion or feeling; and that, at all events, the possibility of occasional risk in judicial inquiries, from the admission of interested witnesses, was a much less evil than that of counteracting and frustrating, in a multitude of cases, the great object to which all rules of evidence ought to be directed, namely, the disco TOry of truth. In pro- portion as the means of inquiry and information are shut out, the dis- covery and enforcement of truth becomes more difficult. The inconve- niences, also, necessarily arising out of the application of such a rule, were not, it was said, to be overlooked. Of this nature were the difficulties and uncertainty occasioned by frequent reference to a great variety of decisions, which required considerable research, abounded with many subtle dis- tinctions, and occasionally by their contrariety created much legal doubt. It was also remarked, that the numerous exceptions to the general rule which had been introduced (especially in the administration of criminal justice, where offers of reward on conviction, though a very strong pecu- niary interest, would not disqualify a witness for the prosecution), were arguments against the policy of such restrictions, and were not reconcil- able with the principle of the rule itself For these reasons, it was strongly pressed, as the wiser and better course, to admit the evidence of interested witnesses without exception, and to allow the objection to be used against their credit, not against their competency. This view has at length been adopted by the legislature, and carried into effect by Lord Denmfiii's Act ;(1) of which it may be truly said that, of all the acts in our statute book, it contains in the smallest compass the greatest amount of good. It settles the law upon an intelligible, reason- able and satisfactory basis ; puts an end to some of the most intricate per- denoe so prolific of disputes, uncertainties, and delays, as that we are considering. Not a circuit is held, but question after question is raised upon it ; nor a term where exceptions growing out of it are not debated. Some of the foregoing reasons apply also to the exclusion of a person sen- tenced for felony. It is wiser, we cannot doubt, to place the witness on the stand, and let the jury judge of his testimony." Following out this reasoning, the legislature 6f 1857 has declared even parties to the actioii competent witnesses in their own behalf. If a third person, not a party to the suit, such as a stockholder in a bank which is plaintiff in the action, may be permitted to testify, notwithstand- ing his interest in the event of the suit, why, it was said, should not a member of a firm be per- mitted to testify in its behalf? See Montgomery County Bank v. Marsh, 3 Sold. 481. If the interest of the witness does not disqualify him, why should he be excluded on the ground that he is named as a party to the action? Finding no answer to these questions, the Parliament of England, by an act passed in 1851 (14 & 15 Vict. u. 99), declared parties competent and compel- lable to give evidence ; as we have already noticed on a former page. (1) 6 & V Vict. 0. 85, Lord Denman's Act. CH. IV.] 6 c& 7 Vict. c. 85. 27 plexities of tlie law, and rejects a principle which was unsound in theory, and in practice often led to results most unfavorable to the due adminis- tration of justice. This statute, after reciting that "the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in criminal and in civil cases, should be laid before the persons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced, and on the truth of their testi- mony ;" proceeds to enact,(l) " that no person offered as a witness shall hereafter be excluded, by reason of incapacity from crime or interest, from giving evidence, either in person or by deposition, according to the prac- tice of the court, on the trial of any issue joined, or of any matter or ques- tion, or on any inquiry arising in aay suit, action or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magis- trate, ofiicer or person having by law or by consent of parties authority to hear, receive and examine evidence ; but that every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or inquiry, or of the suit, action or proceeding in which he is offered as a witness, and notwith- standing that such person offered as a witness may have been previously convicted of any crime or offence : Provided that this act shall not render competent any party to any suit, action or proceeding individually named in the record ; or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment; or the landlord or other person in whose right any defendant in replevin may make cognizance ; or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part ; or the husband or wife of such per- sons respectively : Proindedj also, that this act shall not repeal any pro- vision in a certain act passed in the session of Parliament holden in the seventh year of the reign of his late Majesty, and in the first year of the reign of her present Majesty, intituled ' An act for the amendment of the laws with respect to wills :' Provided that, in courts of equity, any defend- ant to any cause pending in any such court may be examined as a witness on the behalf of the plaintiff or of any co-defendant in any such cause, (1) Sect. 1. The first proviso to this act is repealed by section 1 of 14 & 15 Vict. c. 99, excepting the last clause, or the husband or wife of such persons respectively. And the second section of that act, 14 & 15 Vict. c. 99, declares parties competent witnesses, with certain exceptions therein speci- fied, and previously noticed. And now, by 16 & 11 Vict. e. 83, husbands and wives are rendered competent and compellable tQ give evidence in all civil cases, except in cases of adultery, pro- vided that neither shall be competent or compellable to disclose any commumication made to him or her by the other during marriage. 28 Persons not rendered Competent. [CH. iv. saving just exceptions ; and tliat any interest whicli sucli defendant so to be examined may have in the matters, or any of the matters in question in the cause, shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness." This statute renders competent every person whose testimony would formerly have been excluded upon the ground of his having an interest in the matter in question, or in the event of the suit.(l) But it does not render competent certain persons, therein enumerated, with respect to whose competency the rule of law continues the same as it was before this act passed. It is material to remark the form in which the act is drawn ; it contains no exception of persons who are not to have the benefit of the act; for instance, it does not eoccept parties individually named in the record ; but it provides that they are not thereby rendered competent. Thus, with regard to parties to a suit individually named in the record, it leaves the law as it was before; but parties not individually ruvmed in the record, however they may be substantially interested as parties, are within the beneficial clause, and are not to be excluded by reason of interest. The persons particularly mentioned in the provision, are as follows ; 1st, Any party to any suit, action or proceeding, individually named in the record. But with regard to these, it is provided, that in suits in equity any defendant may be examined as a witness, saving just exceptions; any interest, however, which such defendant may have in the matters in question, is not to be deemed a just exception, but only as tending to affect his credit as a witness.(2) 2dly, Any lessor of the plaintiff in ejectment. 3dly, Any tenant of the premises sought to be recovered in ejectment. 4thly, The landlord or other person in whose right any defendant in replevin may make cognizance. 5thly, Any person, in whose immediate and individual behalf any action may be brought or defended, either wholly or in part : and ..Lastly, The husband or wife of any such persons respectively. It is proposed to consider the question of competency as to these persons, in the following order ; 1st, As to the parties to the suit, action or proceeding individually named in the record. 2dly, As a subdivision of this head, the rule as to parties in criminal proceedings will be considered. Sdly, As to the persons in whose immediate behalf an action is brought or defended. This class will comprehend the several persons specified in the second, third and fourth classes above mentioned. 4thly, As to the husband or wife of any such person, (1) See Cupper v. Newark, 2 C. & Kir. 24. (2) See Carmichael v. Carmicliael, 2 Coll. 1. SEC. I.] Of the Incompetency of Parties on the Record. 29 SECTION I. Of the Rule of Incompetency Considered with reference to Parties Individually Named in the Record in Civil Proceedings. The general tule formerly was, that a party to the record, in a civil suit, could not be a witness at the trial, for himself or for a joint suitor, against the adverse party.(l) The late act of 6 & 7 Vict. o. 85, for (1) 1 Vernon, 230; 1 P. Wms. 596; Gilb. EVid. 116. Note 19. — It is a general rule in all common la* courts, that a party on the record cannot be received to testify, either in his own favor, if objected to by the opposite party, or against him- self if ho object. Haswell v. Bussing, 10 John. Rep. 128 ; Sharp v. Thatcher, 2 Dall. TT ; Supervisors of Chenango v. Birdsall, 4 Wend. 453 ; Nason v. Thatcher, 7 Mass. Eep. 398 ; Eox v. Whitney, 16 Id. 118 ; Adams v. Leland, 7 Pick 62 ; Sears v. DiUingham, 12 Mass. Rep. 358 ; Hunter v. Hunter, Charlton's Rep. 303 ; Lampton v. Lampton'a Executors, 6 Monroe, 616, 617 ; Robinson v. Neal, 5 Monroe, 212, 214, 215 ; Thomas v. Perqueran, 2 J. J. Marshall, 28 ; Wor- raU V. Jones, 7 Bing. 395 ; Butler's Ex'r v. Brown, 4 M'Cord, 24 ; Kimball v. Lamson, 2 Term. Eep. 143 ; Commonwealth v. Marsh, 10 Pick. 57, 58. Whether, in the common law courts, he shall ever'be received to testify upon the merits, even after all interest is removed, or where he is willing to testify in favor of the opposite side, on being called for the latter purpose, depends Baainly on the question Whether the rule of exclu- sion go upon the mere absti-act objection that he is a party, or that he must have some interest connected with that relation. (Parties to the record are held incompetefit witnesses on the general ground that they are in- terested in the event of the suit ; and the practice has been to exclude nominal as well as real parties, even where they have no personal interest In the result of the action. Benjamin v. Cov- entry, 19 Wend. 363; Port v. Gooding, 9 Barb. Rep. 371; Owings v. Emery, 7 Gill, 405- Patterson v. Cobb, 4 Florida, 481. But a person who is a party to the suit, but not a party to the issue on trial, ig a competent witness. Safiford y. Lawrence, 6 Barb. R. 566. And it has been held, that a naked trustee, not responsible for the costs of the suit, and having no interest in it, is a competent witness ; it appearing that the action might just as well have been brought in the name of the real parties. Keim v. Taylor, 11 Penn. State Rep. 163. So, where one of two defendants puts in no defence, he has been held a competent witness for the plaintiff in the action. Kincaid v. Purcel, 1 Smith, 164. And in an action on a joint contract, where a plea of infancy interposed by one of the defendants, has been found in his favor, he is a competent wit- ness. Rohrer v. Morningstar, 1 8 Ohio, 579. But the common law rule as held in this sta,te, does not permit oire of the parties to the record to give evidence for another. Oakley v. AspinwalL 2 Sand R. 7 ; 4 Wend. 453.) On this question different courts have had their different views. Lataipton v. Lampton's Ex'rs, 6 Monroe, 617, per Mills, J. They all seem to concur that though the party be an admin- istrator, executor, trustee, guardian, prochein amy, or otherwise stand in aula- droit, he is not competent to testify in favor of the interest he represents, because, on failure, he is hable for costs ; and the most complete and certain remedy over to reimburse himself, has not yet in any case been considered as countervailing his interest. Sears v. Dillingham, 12 Mass. Rep. 358 ; Pox V. Whitney, 16 Id. IIS ; Durant v. Starr, 11 Id. 527 ; Butler's Ex'r v. Brown, 4 M'Cord, 24, 2 Day, 404 ; Beard's Ex'r v. Cowman's Ex'r, 2 Har. & M'Henry, 152 ; Tan Sant v. Boileau, 1 Bin. 444; Heckert v. Haine, 6 Bin. 16. And see next npte. No; not even if he resign his trust during the pendency of the action ■, for he is stiU liable for costs. Adams v. Leland, 7 Pick. Rep. 62. And though the party be misnamed, or (in actions arising ex contractu, against several) one of the defendants be returned non est inventus, still, in the first case his real name maybe shown, and in the latter he shall be deemed a party, and in both excluded. Robinson v. Neal, 5 Monroe, 80 Of the Incompetency of Parties on the Record. [CH. IV. 214, 215 ; Van Norden v. Striker, 9 "Wend. 286. So a lessor of the plaintiff in ejectment, whetlier he have any interest in the land or not. Prandt ex dem. Van Cortlandt v. Klein, It John R. 335 ; Robinson v. Neal, 5 Monroe, 212, 214. So the assignee of the chose in action on which the suit is brought. Frear v. Everston, 20 John. Bep. 142 ; The People ex rel. M-Call V.Irving, 1 Wend. 20, 21 f Mauran v. Lamb, 1 Cowen's Rep. 174, 118. In New York, the rule excludes the party as a witness on either side, without regard to the question whether he be interested or not. It is enough that he be a party, in all cases except where defendants, in actions for torts, are without cause brought into court. Supervisors of Chenango v. BirdsaU, 4 Wend. 453, 451 ; Schermerhorn v. Schermerhom, 1 "Wend. 119, cited and explaiaed by Marcy, J., 4 "Wend. 457 ; Mauran v. Lamb, 7 Cowen's Rep. 174, 177 ; Hop- kins v. Banks, 7 Cowen's Rep. 650 ; Frear v. Everston, 20 John Rep. 142 ; The People ex rel. M'Call V. Irving, 1 Wend. 20, 21. So in Massachusetts. Fox v. Whitney, 16 Mass. Rep. 118, 121. This doctrine is also strongly insisted on in De Wolf v. Johnson (12 "Wheat, 367, 384, 385), even ^ to a court of chancery. Quere. This case is stated mfra. In England the doctrine of the jurists has certainly fluctuated as to the reason of the rule. Starkie, in his treatise on evidence, considers the reason a mixed one — partly founded on inte- rest, and partly on policy — as where the party is called in his own favor, being interested, and tempted to commit perjury ; and on poUcy, as where the party refuses to be sworn, being called by the other side. 3 Stark. Ev. 1061. And it wiU be seen, by the cases cited in the text of PhiUipps, that they can hardly be sustained without the aid of this double principle. Indeed, in a still later case, a plaintiff on record, though a mere trustee, and plamly destitute of all inte- rest, was excluded by Lord Tenterden, C. J., at Nisi Prius. Whitmore v. Wilks, 1 Mood. & Malk. 214, 220, 221. But a still more recent case seems much to have shaken that principle, and to have approximated to the doctrines of the Court of Chancery and of some American courts of law. It underwent much consideration ty the Common Pleas ; and seems to put the question of policy entirely out of the case, provided the party consent to be examined; and to rest the whole inquiry upon interest alone. The action was against Jones and his sureties W. B. and J. J., on a bond conditioned that Jones should pay rent pursuant to a certain agree' ment. Jones and J. J. suffered judgment by default, but W. B. insisted by plea that the ten. ancy under the .agreement had ceased at a certain time, up to which all the rent had been paid. On the trial the plaintiff offered Jones, one of the defendants, as a witness, to negative the plea of "W. B., his co-defendant ; and, though objected to by W. B., he was received. On motion for a new trial the court, after taking tune to consider the question, refused the motion. TindaH, 0. J., said that Jones was not interested in favor of the plaintiff; for, being IJie pruicipal debtor, he could not caU for contribution from the other defendants, but must himself be ultimately lia- ble both for damages and costs. He did not object to being examined. No case had been cited, nor can any be found, in which a witness has been refused upon the objection, in the abstract, that he was a party to the suit. On the contrary, many have been brought forward in which parties to the suit, who have Buffered judgment by default, have been admitted as wit- nesses against their own interest ; and the only inquiry seems to have been, in a majority of the cases, whether they were interested in the event or not. He insists that the party can be excluded on the ground of interest only, and adds : " That a party to the record should not be compelled against his consent to become a witness in a court of law, is a rule founded in good sense and sound policy. It forms the point in the decision in the case of The King v. Wood- burn (10 East, 395) ; and the decision of that case leads to the necessary inference that, if the party consents to be examined, he is then an admissible witness." WorraU v. Jones, 7 Bing. 395. In Massachusetts and New York the objection to a party being sworn is rested on policy, and he cannot be sworn even by his own consent if his co-defendants object. Per WUde, J., in Commonwealth v. Marsh, 10 Pick. 58 ; Supervisors of Chenango v. BirdsaU, 4 Wend. 453, 456 457 ; Schermerhorn v. Schermerhorn, 1 Wend. 119. But quere. See Miller v. Starks, 13 John. Rep. 517, and Hopkins v. Banks, 7 Cowen's Rep. 650, 653. This gi-ound of policy, in the exclusion of parties, was also disregarded in Bate v. Russell (1 JJood. & Malic. 332), and Affalo v- Fourdrinier (Id. 334, note ; 8. C, 6 Bing. 306), where a bankrupt co-defendant was, in the first case, on being acquitted by the jury and released by hia co-defendants, and m the last, on his SEC. I.J Of the Incompetency of Parties cm the Record. 81 releasing his surplus and a nolle prosequi being entered as to him, received as a Tvitness for his co-defendants. In New York the plaintiff is compellable to testify against himself] where the chose in action on which the suit is brought has been illegally assigned for prosecution to an attorney, coun- selor or solicitor, in order to prove such fact. 2 R. S. 288, 289. The cases which follow will exhibit farther the views of the American courts on this question. One joint appellee cannot be received as a witness for hi^ co-appeUees, either upon his releasing to them his interest in the subject in controversy, or upon his or their depositing with the clerk a sufficient sum of money to cover the costs. CogbUl v. CogbiU, 2 Hen. & Muuf. 467. The reasen assigned by one judge was that he was still liable to his adversary for costs. Id. 479, 482. But a majority of the court seemed to think that had this difficulty been obviated, still he would not have been competent. Id. 482 to 484. And where a bill for the foreclosure of a mortgage was filed against the mortgagor, his assignee of the equity of redemption, and a purchaser in posses- sion from the assignee, it appeared that the mortgagor was insolvent, and no reUef could be had against him ; held, that though he was not necessarily made a party, yet being a party to the record, he could not be examined as a witness. De "Wolf v. Johnson, 10 Wheat. 367. Tet, in chancery, a party totally disinterested is constantly received as a competent witness. Sharp v. Morrow, 6 Monroe, 304, 305. But see Thomas v. Perqueran, 2 J. J. Marsh. 28. One partner is not a witness for another on a bUl by a third partner for an account. Sharp v. Morrow, 6 Monroe, 304 305 ; "Waggoner v. Gray's Adm'rs, 2 Hen. & Munf 603. But after he is dismissed as a party, he may be a witness. Id. Till dismissed, he is interested as a party ; for the decree will affect his rights. Id. ■W., F. and K. brought an action against C. to recover damages for breach of a contract to de- liver goods, of a certain description and quality. After the commencement of the suit, but before the trial, K. executed to "W. and F. an assignment of all his interest in the claim against the de- fendant, for which the suit was brought, and of whatsoever sum might be recovered in the action, with a power to them to use his name in prosecuting the action. "W. and F. also released him from all claims on him for the costs which had or might accrue, and for any claims for contribu- tion to any sum which the defendant might recover, and also executed to him a covenant to in- demnify him against all costs, charges and damages, which might accrue in prosecuting the suit. On the trial, W. and P. paid to the clerk all costs which had accrued, and made a deposit suffi- cient to cover all costs which could accrue during the progress of the cause, and offered to deposit with the clerk such further sum as the counsel of the defendant might require, and to give satis- factory security for the payment of all the costs of the suit The action was marked in the clerk's docket, to be for the use of "W. and F., who then offered to introduce H. as a witness. By the court, "Washington, J. The general rule of law certainly is, that a party to a suit cannot be a competent witness. But it is equally so, that the interest which that party has m the event of the suit, both as to costs and the subject in dispute, hes at the foundation of the rule, and when that uiterest is removed, the objection ceases to exist. In this case, the assignment has termi- nated the interest of H. in, the subject for which the suit is brought. As to the costs, they are paid by the assignees, now the only real plaintiffs on record. "WiUings v. Consequa, 1 Pet. C. C. Eep. 301. Upon this question, whether interest is the foundation of precluding the party, see the remarks of MUls, J., in Lampton v. Lampton's Es'rs, 6 Monroe, 617, 618. He concludes that it is. In South Carolina, where a third person brings a suit on an administration bond in the name of the ordinary, indorsing his name on the record, and acknowledging himself liable for costs, the ordinary is a competent witness to prove the bond. Price v. Gregory, 4 M'Cord, 261. Said, as the reason, that the plauitiffis a public officer, and his name made use of only to enable the real plaintiff to sustain the action. He is not liable for costs, nor is the record evidence to affect him in his individual rights. Id. 262. In Pennsylvania, two plaintiffs brought assumpsit as indorsees of a promissory note ; and one of them assigned all his interest in the note to the other, who paid into court aU the costs of suit, and the assignor was then allowed as a competent witness for the "plaintiff to whom he had as- signed. Hart V. Heilner, 3 Eawle, 407. But this decision is put by the court on the ground that in Pennsylvania there is no court of chancery; and that courts of law have followed the 32 Of the Incompetency of Parties on the Record. [CH. IV. rales of chancery. Drum v. Simpson's Lessee, 6 Binn. 481. And see Steele v. Phoenix Ins. Co., 3 Binn. 306 ; M'Clenachau v. Scott, 2 Dall. 172, note; M'Ewen v. Gibbs, 4 Dall. 13T. In Connecticut, all parties are witnesses on a matter of accounting in a court of probate. Fair- man V. Bacon, 8 Conn. Eep. 418. And in Massachusetts, referees may examine witnesses who would be incompetent in court, on the ground of interest. Fuller v. Wheelock, 10 Pick. 135. In New York, parties are examinable by referees in the action of account. 2 R. S. 385, § 50. In South Carolinaj semJ). a nominal plaintiff is a witness in a cause. Canty v. Sumter, 2 Bay, 93. But in Enight v. Packard (3 M'Cord, 71), this is denied, and it is there said that Canty v. Sumter must have been mlsreported upon this point. Parties and persons interested are competent to prove the loss of a written instrument, or that it is In the power of the other party, and notice to hun to produce it on the trial, or other chcum- stances necessary to authorize the introduction of secondary evidence of its contents ; and to prove the death of a subscribing witness, or other facts, in order to the admission of proof of his handwriting. Such prelimmary testimony is addressed to the court, upon a collateral point, and it is not a subject on which the jury are to pass. This is the law in New York. Jackson ex dem. Livingston v. Frier, 16 John. Rep. 193; Chamberlain v. Gorham, 20 Id. 144; Butler v. "Warren, 11 Id. 57, overruled ; Schermerhorn v. Schermerhorn, 1 "Wend. Rep. 119 ; Jackson ex dem. Tan Schaiek v. Davis, 5 Cowen's Eep. 123; Betts v. Jackson ex dem. Brown, 6 "Wend. 173. So in New Hampshire. M'Neil v. M'Clintock, 5 N. H. Rep. 345. So in Massachusetts. Davis V. Spooner, 3 Pick. Eep. 284 ; Chase v. Lincoln, 3 Mass. Rep. 236 ; Taunton Bank v. Rich- ardson, 5 Pick. Rep. 406 ; Adams v. Leland, 7 Id. 62. So in Pennsylvania. Douglass' Lessee V. Sanderson, 2 Dall. 116 ; Meeker v. Jackson, 3 Yeates, 442 ; Jordan v. Cooper, 3 Serg. & Rawle, 575; Zidd v. Riddle, 2 Yeates, 444; 1 Yeates, 15 ; Le vans' Lessee v. Hart, cited 1 Yeates, 16 ; Lenox v. Dehaas, 2 Yeates, 37. So in North Carolina. Blanton v. Miller, 1 Hayw. 4; Seekright ex dem. "Wright V. Began, Id. 178, note; Park v. Cocheran, Id. 410 ; Id. 54, note a ; Garland v. Goodloe, 2 Hayw. 351. But see Cotton v. Beasley, 1 N. Car. Law Eepos. 239. So in Virginia. Ben v. Peete, 2 Eand. 639 ; Givens v. Mans, 6 Munf. 201. In Pennsylvania, it has been held, that the party may be sworn as to a witness's inability to attend, in order to let in his deposition taken de bene esse. Morris v. Flora, cited 2 Dall. 117, 1 Yeates, 16. Otherwise in North Carolina. "Willis v. Brown, Mart. Eep. 52 ; Anon. v. Brown, 1 Hayw. 227. In South Carolina and Connecticut, the testimony of the party has been denied to prove the loss of a material paper and the proper search. Sims v. Sims, 2 Eep. Const. Court, 225 ; Coleman v. "Wol- cott, 4 Day, 388. In New York, where one party is received to prove the loss of a paper, the opposite party may be sworn to disprove the loss, and account for the paper. 2 R. S. 406, § 74. A party to the record cannot be a witness, even when he is a mere nominal party having no interest, without the consent of the real party in interest. Thus, where an action was brought by the assignee of a chose in action, in the name of the assignor, the defendant offered to call the nominal plaintiff as a witness to prove his set-o£f. Held, that he was inadmissible. His being a party to the record, was sufficient to exclude him, without the consent of the real party in interest. Frear v. Bvertson,,20 John. Rep. 142. And see The People ex rel. M'CaU v. Ir- vmg, 1 "Wend. 20, S. P. An executor caunot be a witness in an action against him: for the record would be evidence to charge him personally in an action for a devastavit. Lampton-v. Lampton's Ex'rs, 6 Monroe 616, 619. But he was received to testify on probate ; for in that he has no interest. M'Daniel's "Will, 2 J. J. Marsh, 332. An executor plaintiff, on an issue of devisavU vel non, was not allowed to testify, though he took nothing under the will. Vinyard v. Brown, 4 M'Cord, 24. But though in general, neither a party in interest, nor a party merely nominal, can either be received as a witness in his own favor nor in favor of others on the same side, nor compelled to testify against himself, or against others on the same side, many exceptions have been made by the courts of law ; and still more by courts of equity — sometimes whore the party proposed as a witness is interested, at others, where he is either free from interest, in the same sense with any other witness, or where his interest ig removed at the trial. "We shall consider most of the addi- tional cases respecting his restoration to competency, which in some states has become as com- mon an expedient, as a similar restoration of other witnesses. The general doctrine that a party, nommal or real, is incompetent, with some of its qualLfications, has already been considered, to SEC. I.J Of the Incompeteiicy of Parties on the Record. 33 ■which may be added several cases not before cited. Higdon's Heirs v. Higdon's Devisees, 6 J. J. Marsh. 53 ; Duncan, J., in Gebhardt v. SMndle, 15 Serg. & Eawle, 239 ; BuUare, J., in Gravier's Curator v. CuUion, 11 Lou. Eep. (Curry) 276; Bill v. Scott, Kirby, 62 ; Hawkins v. Hawkins, 2 North Car. Lalw Repos. 627 ; Williams v. Beard, 3 Dana, 158 ; Levy v. Burley, 2 Sumn. 355, 361 ; Scott V. Lloyd, 12 Pet. 145, 149 ; Bradley v. Boot, 5 Paige, 638, 639 ; Norton v. Woods, 5 Paige, 249 ; Jones v. Bullock, 2 Dev. Eq. Rep. 638, 639 ; Davia v. Morgan, 1 Tyrwh. 457 ; 1 Compt. & Jerv. 87. The doctrine extends to a prochein ami. Sproule v. Botts, 5 J. J. Marsh. 162, 163. The courts in Pennsylvania are very liberal in allowing the restoration of the competency of a party to the record. But his interest must be fully extinguished. An executor plaintiff in trover, on his own possession, was excluded, though he offered to pay all past costs, and to de- posit what the court should think sufficient to cover the residue ; for the costs may be recovered back. In this case, they were not paid and relinquished absolutely. Beside, he did not release las right to commissions. Gebhardt v. Shindle, 15 Serg. & Eawle, 235, 239, and 210. So, generally, of an executor plaintiff, though he sue in mere right of the intestate. Cochran v. Cochran, 1 Yeates, 134 ; Anderson v. Neff, 11 Serg. & Eawle, 208. An executor or administrator defendant cannot be rendered competent, as if he were plaintiff, by paying costs, releasing, &c. ; for tlie ver- dict is evidence to charge him in various ways, e. g. for a devastavit, and this especially if he has admitted assets by his plea. Conrad v. Keyser, 7 Serg. & Eawle, 370, 371. See also, per Dun- can, J., in Wood V. Ludwig, 5 Serg. & Eawle, 447. A fortiori without a release, &o. Dehuff v. Turbett, 3 Teates, 157 ; Sinks v. English, 3 Blackf 138. A garnishee in a foreign attachment, being liable for costs, if he contests the plaintiff's claim, is not a competent witness against the plaintiff, even though he pay the debt due from him into court. Wood v. Ludwig, 5 Serg. had executedian assignment of all his rights to the penalty to a third person. Such right is not assignable. Commonwealth T; Hargesheimer, 1 Ashmead's Riep. 41^. 60 Competency of Prosecutor . [CH. IV. an anomaly in the law of evidence.(l) But the law in this particular was altered by the statute 9 Geo. IV, c. 32, § 2, the effect of which is, to place the law of evidence in prosecutions of forgery upon the same footing as in other criminal proceedings ; and now the party aggrieved by an alleged forgery, whether prosecutor or not, is in all cases a competent witness in support of the prosecution.(2) Prosecutor when formerly incompetent from interest. 1 here are cases, in which a prosecutor or party aggrieved is entitled, by statute, to some particular benefit or advantage from the conviction of the party accused. In these cases, if the benefit or advantage would imme- diately result to the prosecutor upon conviction, he was clearly interested in the event, and was formerly held to be incompetent, unless his compe- tency were restored by the statute in question, or by some other statute, or on some principle of public policy.(3) Thus, upon an indictment for a forcible entry, upon the statutes 8 Hen. VI, c. 9, or 21 Jac. I, c. 25, where the effect of a conviction is to entitle the tenant to an immediate award of restitution of the lands, such tenant was considered incompetent by reason of his immediate interest in the event of the prosecution.(4) And in cases of summary convictions, where a penalty is imposed by statute, and the whole or part is given to the informer, who becomes entitled to receive it immediately upon the conviction, the informer was considered an incom- petent witness, unless he was made competent by statute.(5) An exception was made in prosecutions for robbery or theft, where the party injured was competent, although entitled to restitution of his prop- erty immediately upon conviction of the offender.(6) (1) See by Lord Bllenborough, C. J., 4 East, 582 ; by Abbott, 0. J., 4 B. & A. 210. This doctrine was confined to criminal prosecutions, and did not apply where the question of forgery arose in a civil suit. Hunter v. King, 4 B. & A. 209. (2) Note 31. — The old English doctrine has been adopted by some of the American courts (State V. Branson, 1 Boot, 307 ; Same v. Blodget, Id. 534; Swift's Ev. 70 ; but see Day's note 1, 2 N. R. 96 ; State v. A. W., 1 Tyl. 260 ; The State v. Hamilton, 2 Hayw. 288) ; doubted by others (Coe's Case, 1 C. H. Eec. 141) ; but a majority have gone the other way. Fubber t. Billiard, 2 N. H. Eep. 481 ; Pennsylvania v. Parrel, Addis. 246 ; Commonwealth v. Snell, 3 Mass. Bep. 82 ; Same v. Waite, 5 Id. 261 ; State v. Poster, 3 M'Cord, 442 ; Respublioa v. Keat- ing, 1 Dall. 110 ; Same v. Boss, 2 Id. 239 ; Same v. "ff right, 1 Teates, 401 ; Same v. Rosa, 2 Id. 1. An apparent first indorser was received to prove his name a forgery. Territory v. Barran, 1 Mart. Lou. Eep. 208. So the alleged drawer of a cheek (People v. Howell, 4 John. Eep. 296), and the maker of a note. People v. Dean, 6 Cowen's Rep. 27. And see United States v. Johns, 4 Dall. 412. But the instrument must be produced to the party, before he shall be allowed to swear as to its genuineness (Commonwealth v. Hutchinson, 1 Mass. Rep. 7 j Same v. Suell, 3 Id. 82), unless it has been secreted to protect the offender. Commonwealth v. Snell, swpra. (3) See the judgment of the Court of K. B. in R. v. 'Williams, 9 B. & C. 549, 555. (4) R. V. Williams, 9 B. & C. 549 ; R. v. Beavan, Ey. & Mo. 242. (6) E. V. Tilley, 1 Stra. 316 1 R. y. Stone, 2 Ld. Eaym. 1545 ; R. v. Piercy, Andr. 18 ; B. T. Blaney, Andr. 240. (6) See 3 Bing. 300, 301 ; by Park, J., 9 B. 4; C. 550, and by Bayley, J., Id. 557. As to tha SEC. II.] Competency of Prosecutor. 61 On an indictment on the statute 9 Ann. c. 14, § 5, for fraudulent gam- ing, the loser of the money was considered competent to prove the loss ;(1) for the pecuniary penalty imposed by the statute is not immediately re- coverable upon a conviction, but is given by the express words of the stat- ute to such parties as shall sue for the same by a separate action ; and the conviction would not be admissible evidence in an action by the party to recover the penalty.(2) So in a prosecution for seducing artificers, under the statute 23 Geo. If, c. 13, § 1, which subjects offenders to a penalty of 500?., the prosecutor was held to be a competent witness ;(3) for the stat- ute impliedly renders a separate action necessary for the purpose of ob- taining the penalty, and in that action he could not use the conviction in evidence. Cases of this nature were not, therefore, to be viewed as ex- ceptions to the rule respecting interested witnesses ; for in none of them evidence of persons entitled to a penalty under the excise laws, see 7 & 8 Geo. IT, o. 53, § 75 ; tinder the customs laws, see 8 & 9 Tict. u. 87, § 132. Note 32. — That persons entitled to a reward on conviction, are competent witnesses for the prosecution, see Macnally's Ev. 61, 63, and the cases there cited; United States v. "Wilson, 1 Baldwin's Eep. 90, S. P. An atiorney who, by arrangement with the trustees of a corporation, was to have 10 per cent, on all fines collected in their behalf was held incompetent as a witness for the commonwealth, in a prosecution for a fine belonging to the corporation. Commonwealth V. Moore, 5 J. J. Marsh. 655, 656. Note 33. — The party injured Is a competent witness for the state, in a criminal prosecution. The cases are generally uniform to this effect, on the ground which prevails in civil causes, thstt the record cannot be used as evidence either for or against the witness. State v. Hasset, 1 Tayl. 55 ; Commonwealth v. Oliver, 3 Bibb, 474. But they are conflicting as to his competency in those cases where he may, by special provision, derive actual benefit from a conviction. The rule that he is competent, was applied to a suit qui tarn for usury. Banner v. Gregg, 1 Harringt. 5 1 3. And to a prosecution for playing with false dice. The King v. Chapman, stated by McKean, C. J., in Respubliea v. Keating, 1 Ball. 111. The general rule was held not to be altered even by a statute making the prosecutor liable for costs. Commonwealth v. Shriver, Whart. Dig. 331, pi. 734, (2d ed.) Qitere. Vid. Commonwealth v. Gore, 3 Dana, 475. Where a statute made him liable only in the event of a prosecution appearing to be frivolous or maheious, he was received as but contingently liable. The State v. Blennerhassett, Walker's Rep. 7, and 15, 16. The prosecutor in forcible entry under the statute, is not competent for the state, for he is entitled to restitution. State v. Fellows, 2 Hayw. 340 ; Ante, note 30, p. 59, S. P. The rule, that the injured party is competent, &c., was applied to the person who owned, and from whom a bank bill was stolen, though a conviction would entitle him to a restitution of the property. State V. Casados, 1 Nott & McCord, 91, 99. But this was denied of the party swindled, against the alleged swindler; for a statute gave the former double value, on conviction. State v. Vaughan, 1 Bay, 282, 283. So of an informer, who is entitled to a share of the penalty. City Council V. Haywood, 2 Nott &, McCord, 308 ; Van Evour v. The State, Id. 309, note a. But see State V. Bennett, 1 Root, 249. On trial of an indictment for perjury committed by .4. on trial of an action against B. and others, B. is not rendered incompetent as a witness for the prosecution, merely on the ground that he has not paid the debt and costs, and has filed a bill in equity. But semUe, that if B. expect A. will be a witness against him in a similar action, coming on for trial soon after the indictment, that is such an immediate interest in B. as will disqualify him from being a witness. Eex V. Hulme, 7 Car. & Payne, 8. (1) R. V. Luckup, Willes, 425, n. (2) See Per Cvr. 9 B. & C. 557, 558. (3) R. V. Johnson, Willes, 425, and see 9 B. & C. 557, 668. 62 Comfetency of Prosecutor. [CH. lY. had tlie witness any direct and certain interest in the event of a prose- cution. iDformer competent where fine or imprisonment discretionary. Even in cases, where by statute a pecuniary penalty may be imme- diately recoverable upon the event of a criminal prosecution, and where the prosecutor or informer is entitled to part of the amount, it had been ■held, before Lord Denman's Act, that he was not an incompetent witness, if it were in the discretion of the court to punish the offender either by fine or imprisonment.(l) This was on the ground that a witness would not be incompetent from interest unless the interest were certain : and in cases where a fine is made to depend upon the discretion of the court, it is not certain, until the judge pronounces his sentence, whether the informer will derive any benefit from the event of the prosecution. From this review of the law, it appears that the prosecutor in criminal cases was considered incompetent only in those instances where the result of a conviction would lead to an immediate and necessary benefit to him- self; as in the case of an indictment for a forcible entry where he would be entitled to a restitution of the land, or in the case of an information laid by a common informer where he would be entitled to the whole or a portion of the penalty. In these last-mentioned cases, namely, of indictments for forcible entry and information by common informers, the objection to the competency of the witness seems now no longer maintainable. This would appear to be so upon a careful consideration of Lord Denman's Act.(2) The rule of incompetency, in the cases referred to, was founded upon the direct interest of the prosecutor or informer in procuring a conviction. But this statute has abolished the incompetency which was founded upon interest, subject to certain exceptions, within none 'of which do the cases under consideration appear to range themselves. In the case of the informer, for instance, it cannot justly be said that he is "a party to the proceeding individually named in the record."(3) He is certainly individually named in the conviction, as the party upon whose information the defendant has been brought before the magistrate, which (1) R. V. Cole, 1 Bap. 169, overruling R. v. Blaokman, 1 Bsp. 96. (2) It is to be observed that Lord Denman's Act (6 & 7 Vict. c. 85), declares that no person oflFered as a witness shall hereafter be excluded by reason of incapacity from crime or interest 'from giving evidence either in person or by deposition, according to the practice of the court, on ■the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or proceeding civil or criminal. Our code, on the other hand, does not attempt to alter the law of evidence in criminal cases, but declares briefly and in general terms that no person offered as a witness shall be excluded by reason of his interest in the event of the action. New York Code of 1848. So that notwithstanding the material alteration of the law of evidence In this state, the competency of witnesses in criminal cases is to be determined by the rule estab- ished at common law. (3) See E. v. Hinks, 2 0. & Kir. 462, post, p. 66. SEC. n.] Defendant in Prosecution. 63 conviction is the record of the proceedings before him. But it may be questioned whether he can be said to be a party to ithe (proceeding any more than any prosecutor is in an ;ordinary case. In almost every case, the party who lays an information or complaint is named in the conviction, although not entitled to any penalty, and though, where the information is laid by an informer entitled to the penalty, or part of it, that fact is stated in the conviction ;(1) yet, it seems, that would only show in what manner he was interested and would not render him more a party to the proceed- ing, or more particularly named, than any other person laying an informa- tion or complaint. It may, perhaps, also be doubted, whether the term "record" in the act is not confined in its application to proceedings in the superior courts. It seems to be clear that an informer would not come within the succeeding part of the proviso as a " person in whose immediate and individual behalf any action" may be brought or defended ; that clause being expressly limited to actions ; that is, actions properly so called. It must be observed, however, that by a recent statute, (2) passed to fa- tjilitate the performance of the duties of justices of the peace out of sessions, ■with respect to summary convictions and orders to be made upon any in- forma,tion or complaint laid before them, it is enacted,(3) "that every prosecutor of any such information, not having any pecuniary interest in the result of the same, and every complainant in any such complaint, whatever his interest may be in the result of the same, shall be a competent witness to support such information or complaint respectively." In this particular class of cases, therefore, that is, in summary convictions out of sessions, the statute appears to contain a recognition of the old rule, that an informer who has a pecuniary interest in the result of the informa- tion^ is an incompetent witness to support the same, notwithstanding the provisions of Lord Denman's Act. (4) Defendant in criminal prosecution incompetent. With regard to the competency of parties defending in criminal prose- (1) Generally in this form: — "Be it remembered that on,JlDC., A.B., of, &c., who as well for our Sovereign Lady the Queen as for himself, doth prosecute," &e. (2) H & 12 Vict., u. 43. (3) Sect. 15. (4) It may be remarked, that under the provisions of the Metropolitan Police Courts' Act (2 * 3 Viet. 0. 11), a power is given to the metropolitan police magistrates to lessen the portion of any penalty to be paid to an informer not being the party aggrieved, or to deprive him of it alto- gether (§ 62) ; so that in that district it seems clear upon the authority of E. v. Cole (1 Esp. 169, smpra, p. 62), that any informer is a competent witness, by reason of his not having a cer- tain interest in the event of the prosecution. Again, there are cases under that act in which the magistrate exerciBes a civil jurisdiction (as e. g. under sect. 40, by which he is empowered to order the delivery to the owner of goods to the value of £16 which are unlawfully detained — ^being a proceeding in the nature of an action of detinue) ; in such a case, it would appear, that the complainant would be a competent wit- ness under the provisions of the 11 & 12 Yict. c. 43, § IS. 64 Defendant in Prosecution. [CH. IV. cutions, it is scarcely necessary to observe, that as they are generally most strongly interested in the event, it seldom happens that they can be called as witnesses. But as in civil actions against several defendants, a co-de- fendant may sometimes be so circumstanced as to be a competent witness : so in criminal prosecutions, one of several persons jointly indicted may be rendered competent to give evidence either for the prosecution or for his co-defendants. Thus, upon an information by the crown against two or more, if a nolle prosequi be entered by the attorney-general, either before or at the trial, as to one of the defendants, such defendant may be called as a witness for the crown against his co-defendant.(l) So where, upon a joint indictment against two, one had pleaded in abatement, and for want of replication judgment had been entered that he should be dismissed and discharged, he was admitted, without objection, as a competent witness for the other defendant, being himself no longer interested in the event of the prosecution. (2) In like manner, one of several defendants may be rendered competent in some cases by a separate verdict at the trial. Thus, where several per- sons were jointly indicted for a conspiracy. Lord Tenterden permitted a verdict of acquittal to be taken in favor of two defendants, at the request of the prosecutor's counsel, before the case was opened, in order that they might be called as witnesses against the others.(3) And where, upon an indictment against several, it appears at the close of the case for the prose- cution, that there is no evidence against one of the defendants, it is usual to take a separate verdict of acquittal as to him, and he may then be called as a witness on behalf of the others.(4:) This is upon the same principle that is commonly acted upon in cases of tort against several defendants where no evidence is adduced against one or more of them. But it would seem, from analogy to these cases, that it is entirely in the discretion of the judge whether or not a verdict of acquittal is taken at the close of the case for the prosecution.(5) (1) B. K P. 285 ; by Lord Hardwioke, Rep. temp. Hardw. 163, and see per eund. in "Ward T. Mann, 2 Atk. 229. (2) R. V. Shearman and others, Rep. temp. Hardw. 303. (3) R. V. Rowland and others, Ry. & Mo. 401. The same was done in Bell v. Morrison (27 Miss. 68) ; and where the defendants are tried sep- arately, they have been held competent witnesses for each other, though indicted jointly. Lozier y. The Commonwealth, 10 Gratt. 708. (4) R. V. Mutmeers of the Bounty, cit. 1 East, 313 ; R. v. Redder, 1 Sid. 237 ; Hawk. P. C. 0. 46, § 98. (5) See Sewell v. Champion, 6 A. & B. 407 ; White v. Hill, 6 Q. B. 487. Where there is any doubt, on the evidence, in respect to the innocence or guilt of one of the parties, it is clear, from the analogy suggested, that the court ought to permit the jury to pass upon the question, and thus give to the other parties an opportunity to produce all the testimony that can be fairly obtained. In a civil action, such parties are in this state, competent witnesses for each other and for themselves, and there is much more reason in permitting persons prose- cuted in behalf of the people, as for assault and battery, to testily for each other. See Beal v. Finch, 1 Kernan, 128. But where the defendants are sued for trespass in cutting and carrying SEC. II.] Defendant in Prosecution. 65 In the case of E. v. Lafone,(l) as reported, some defendants, who had suffered judgment by default to an indictment for a misdenieanor, in ob- structing an officer in the execution of his duty, were tendered as witnesses at the trial on behalf of another defendant who had pleaded, but Lord El- lenborough, 0. J., said, he had never known such evidence admitted, and rejected the witness. " To allow this evidence," said his Lordship, " would go to every criminal case ; for if two were indicted, one by suffering judg- ment by default, might protect the other : there is a community of guilt ; they are all engaged in an unlawful proceeding ; the offence is the offence' of all, not of a single individual only." But it has been held, in a recent case,(2) that a prisoner who has pleaded guilty to an indictment is a competent witness against other defendants joined in the same indictment. It was contended in this case that the de- fendant was not admissible as a witness against two other prisoners included in the same indictment, because he was a party to the record ; but Alder- son, B., observed that he was not a party to the issues ; the only issues being whether the two other prisoners were guilty or not. Upon an indictment against two defendants for an assault, where one of them pleaded guilty, and was fined, and paid the fine, it was decided, that he might be called as a witness on behalf of the other defendant, who had pleaded not guUty ; the trial being at an end with respect to the witness.(3) And in a later case, upon an indictment against two prisoners for house- breaking, where one of them pleaded guilty, it was ruled, that he might be called as a witness by the other prisoner.(4) Some difficulty might, perhaps, arise in cases where one of several de- fendants has pleaded guilty to a charge where the gist of the offence lies in its joint commission by all or a certain number of the parties charged : e. g. in an indictment against A. and B. for a conspiracy : in such case, if A. had pleaded guilty, and were called as a witness for B., he would have a direct interest in procuring the acquittal of B. ; as, in that event, it seems doubtful whether any valid judgment could be pronounced against the defendant who had pleaded guilty.(5) Nevertheless, it appears, the wit- ness could not be objected to on the score of interest alone ; that would be a matter affecting merely his credibility ; and though he would undoubt- edly be a party to the proceeding individually named in the record, he away timber, one of them is not a competent witness, even under our code, for the other to prove a purchase of the timber (Dean v. Thornton, 2 Kernan R. 266) ; and in similar cases prosecuted in the name of the people, it ia very plain that one of the defendants could not be called as a witness for the others, until the jury has passed upon the question of his innocence or guUt. (1) 5 Esp. 154. See Hadrick v. Heslop, \1 L. J. (N. S.) Q. B. 313 ; Ante, p. 50. (2) R. V. Hinks, 2 C. & Kir. 462. (3) R. V. Fletcher, 1 Stra. 633. (4) R. V. George, C. & Marsh. 111. (5) See T. B., 8 Hen..IY, 6; 9 Hen. IV, 9 ; Thody's Case, 1 Vent. 234; E. v. Cooke, 9 B. & 0. 538 ; R. V. Kenriok, 5 Q. B. 49. Vol. L 5 66 Of the Rule concerning Interest [OH. IV. ■would not be more so than in other cases where a defendant similarly sit- uated has been admitted as a witness ;(1) in the language of Mr. Baron Alderson,(2) he would not be a party to the issue. The witness, in factj would seem to stand in the same position as if he were not joined in the indictment, but the other defendant were indicted alone for conspiring with him, the witness ; in which case there seems to be no doubt but that he would be competent.(3) SECTION III. Of the Rule of Incompetency, Considered with Reference to Persons in whose Behalf an Action is Brought or Defended. Former rule as to direct interest. Under the former state of the law, it frequently happened that the nominal plaintiff on the record had no real interest in the question at issue, and the action was prosecuted solely for the benefit of a third person who was not a party to the record : and if, at the trial, such person were ten- dered as a witness for the plaintiff on the record, he would obviously have a direct interest in obtaining a verdict for the plaintiff, for such verdict, when obtained, would immediately enure to his own benefit, and the wit- ness, therefore, would have a much stronger interest than the plaintiff him- self, in obtaining a favorable termination of the cause. Indirect interest. And a direct and immediate benefit or disadvantage from the result of the suit was not the only species of interest which, at one time, rendered a witness incompetent to give evidence. For, until the passing of the statute 3 & 4 Wm. IV, c. 42, §§ 26, 27, which effected a material alteration in the law in this respect, witnesses who were neither parties to the record, nor had any direct interest in the event of the suit, were often rendered incompetent, by reason of an indirect interest in the record with regard to some subsequent suit ; although they could derive no immediate benefit or disadvantage from the termination of the particular suit. These were the only grounds upon which a witness became incompetent from interest, and it was fully settled by many decisions, that all other ob- jections on the ground of a supposed interest would not affect his compe- tency, although they might affect his credit.(4) A material alteration in the law of evidence was affected by the last- named statute,(5) with regard to witnesses, who were once considered in- (1) See R. V. George, 0. & Marsh. Ill ; Supra. (2) In R. V. Hinks, 2 C. & Kir. 462 ; Ante, p. 65^ (3) See Poplett v. James, B. N. P. 286 ; Ante, p. 44. (4) See Bent v. Baker, 3 T. R. 21 ; Smith v. Prager, 1 T. R. 62 ; R. v. Boston, 4 East, 581. (5) 3 & 4 Wm. IV, 0. 42. SEC. III.] As to Persons not Parties to a Suit 67 competent on tlie ground of an indirect interest, wMcb might accrue from the use of the record as evidence for or against them in some subsequent suit. By section 26, it was provided, that in cases where witnesses were objected to upon that ground, they should nevertheless be examined, but that in such cases a verdict or judgment, for or against the party for whom the witness should be examined, should not be admissible in evidence for or against the witness, or any person claiming under him. The effect of this enactment was to remove the objection to the competency of the wit- ness in civil suits, by removing the interest out of which the objection arose ; and the principle upon which the statute was founded, appears to be in some degree analogous to that of the rule adverted to in the preced- ing section with reference to criminal proceedings ; namely, that a witness in a criminal prosecution shall, in no case, be allowed to avail himself of a conviction, where he has himself been called as a witness in support of the indictment. The supposed interest of the witness was removed by putting an end to all possible interest in the record, and by preventing his deriving any benefit or sustaining any loss with reference to the use of the record, and the termination of the suit in favor of either party. Having thus briefly stated the general condition of the law upon this subject before the passing of Lord Denman's Act,(l) we will now revert to the provisions of that important statute. We have seen that it has abolished generally the incompetency of wit- nesses who were considered under the old rule as objectionable upon the ground of their interest in the suit ; but it provides that the enactment shall not render competent, not only the parties who are individually named in the record, but also, in ejectment, any lessor of the plaintiff, and any tenant of the premises sought to be recovered ; also, in replevin, the landlord or other person in whose right the defendant may make cogni- zance; and generally any person in whose immediate and individual behalf an action is brought or defended either wholly or in part. The law as to the incompetency of these parties remains, therefore, the same as before the passing of the act.(2) (1) 6 & T Viet. e. 85. (2) The provision of the Code, that no person offered as a witness shall be excluded by reason of his interest in the event of the action (§ 398), accompanied with the declaration that such provision should not apply to a party to the action, nor to any person for whose immediate benefit'it was prosecuted or defended, has given rise to many decisions proper to be noticed in this connection. In the first place, then, a corporator, though also an officer of the corporation, is not a party for whose immediate benefit the action is brought ; and therefore, where the action is against the " mayor, aldermen and commonalty " of a city, an alderman is competent (Pack V. The Mayor, &o., of N. T., 3 Comst. 489), and was so at common law. Tan Wormer v. The Mayor, Sec, of Albany, 15 "Wend. 262 ; The Trustees of Watertown v. Cowen, 4 Paige, 510. And a stockholder in the plaintiff's bank is not a party to the action, nor a person for whose immediate benefit it is prosecuted, and is therefore a competent witness for the bank. Mont- gomery Co. Bank v. Marsh, 3 Selden R. 481 ; Washington Bank v. Palmer, 2 Sand. 686. go is 68 What Interest disqualifies a Witness. [CH. IV. In ejectment, the lessor of the plaintiff was always considered as sub- stantially a party on the record ;(1) and by reason of his direct and imme- diate interest in the action was generally incompetent as a witness. Where the name of a person is used, without his concurrence, as a lessor of the plaintiff, and a verdict has been entered for the defendant upon his demise, he may be a witness in support of other counts ;(2) for he has ceased to be a party to the suit or to have any interest therein. It has been seen that, by the statute 3 & 4 Vict. c. 26, where parish ofiicers are the nominal parties to an action, they are not on that account disabled from a stockholder of a railroad company a good witness for the company. N. T. and Erie S. R. v. Cook, 2 Sand. '732. In like manner, the next of kin to the intestate, one of those among whom the fund arising from the estate of the deceased is to be distributed, is a competent witness for the administrator in an action to recover a demand due to the estate ; he is not the party for whose immediate benefit the action is brought. Butler v. Patterson, 3 Keman R. 292, For the same reason a residuary legatee is also competent. Freeman v. Spaulding, 2 Kernan, 373; "Weston v. Hatch, 6 How. Pr. R. 443. So, also, one who has assigned his property for the benefit of creditors is a competent witness ; he ia not a party to the suit brought by his assignee, and is not the party for whose immediate benefit the action is brought. Jones v. The East Society, &c., of Rochester, 21 Barb. 161 ; Davies v. Cram, 4 Sand. 355. See, also, Allen v. Hudson River Mutual Ins. Co., 19 Barb. 442. In short, there were but few cases under the code, which requires all actions to be brought ui the name of the real party in interest, in which a third person could be excluded on the ground that he was the person for whose immediate benefit the action was brought or defended. The plaintiff in an execution, who had indemnified the sheriff for making the levy, was held to be the person for whose immediate benefit the suit was defended, in an action against the sheriff for takmg the property. Howland v. Willetts, cited 1 Duer, 325. But the assignor of a cause of action, who had taken from the assignee an agreement that the latter should pay him fifty dollars when the demand should be collected, was held a competent witness in Davison v. Miner, 9 How. Pr. B. 524. So where the assignor of a chose in action had covenanted that the full amount of the claim was due, he was, notwithstanding, held a competent witness in an action thereon, because he had no immediate interest in the event of the suit. "Winthrop v. Myer, 1 Abb. Pr. R. 385 ; Bridges v. Hyatt, 2 Id. 449. It is to be observed that the language employed m Lord Denman's Act is slightly difierent from that used in our code. In that act it is declared that the provision shall not render compe- tent "any person in whose immediate and individual iehalf any action may be brought or defended, either wholly or in part;" while the language used in our statute was that the pro- vision should "not apply to a party to the action, nor to any person for whose immediate benefit the suit is prosecuted or defended." This language, read in connection with section 111, shows clearly that but few cases could occur in which a person not a party could be excluded. " Every action must be prosecuted in the name of the real party in interest, except as otherwise pro- vided in section 113," which aUows an executor or administrator, a trustee of an express trust or a person expressly authorized by statute, to sue without joining with him the person for whose benefit the action is prosecuted. But it is not necessary to dwell longer upon this point, since both parties and persons in interest are now rendered competent witnesses in their own behalf; but "such examination shall not be had, nor shall any other person, for whose imme- diate benefit the same is prosecuted or defended, be so examined, unless the adverse party or person in interest is Uving, nor when the opposite party shaU be the assignee, administrator, executor, or legal representative of a deceased person." Amendment of IS51 to § 399. (1) See Fenn d. Pewtress v. Granger, 3 Campb. I'l'?. (2) See Per Cur. in King v. Baker, 2 A. & E. 339. SEC. Ill,] What Interest disqualifies a Witnesi. 69 giving evidence. In a very recent case,(l) where an action of ejectment was brought in respect of parish lands in which the churcTiwardens and overseers of the parish were the lessors of the plaintiff (under the 59 Geo. Ill, c. 12, § 17," empowering parish ofi&cers to sue in respect of such lands), it was held, that the 3 & 4 Vict. c. 26, was not repealed by Lord Denman's Act. For that act does not positively render the lessor ot the plaintiff incompetent as a witness, but merely provided that its general enactment, abolishing incompetency on the ground of interest, should not have the effect of rendering a lessor of the plaintiff competent where he was not so before.(2) The tenant or other party in possession was also held incompetent as a witness for the defendant, as having an immediate interest in the event of the suit,(3) for the verdict and judgment would have the effect of turning him out of possession immediately.(4) It has already been remarked, that if one of several defendants in eject- ment, who is in possession of part of the premises, suffer judgment by default as to such part, he appears to be competent to give evidence for a co-defendant who has pleaded.(5) In replevin the conusor, that is, the landlord or other person under whom the defendant made cognizance, was, in general, an incompetent witness for the defendant, being the person really interested in the event of the cause, and in truth the substantial defendant. And the law remains the same under Lord Denman's Act. In a case, before that statute, where there were two cognizances, one under the party beneficially interested, and the other under a trustee for him ; the evidence of the latter was rejected, notwithstanding the absence of any beneficial interest on his part in the premises.(6) The principle here seems to have been that one under whom cognizance is made, and who is ■prima fojcie the party, shall not be deemed competent merely because the legal estate in respect of which he distrained was held by him as a trustee for others.(7) In the case of Upton v. Curtis,(8) it appears that a party, under whom cognizance was made, was considered incompetent for the defendant ■although that particular cognizance had been abandonded. But it was afterwards decided by the Court of King's Bench, in the case of King v. (1) Doe d. Sayer and others v. Hatton, Q. B. 19, Ap. 1849, before Pattesou and Erie, J's. (2) See Dresser v. Clarke, awte, p. 45. (3) Doe d. Jones v. Wilde, 6 Taunt. 183; by Tindal, C. J., in Deed. Teynham v. Tyler, 6 Bing. , 394 ; Doe d. Lewis v. Bingham, 4 B. & A. 672 ; Doe d. WiUes v. Birchmore,' 9 A. & E. 662 ; Parker v. Mitchell, 11 A. & E. 788. (4) See 5 Taunt. 183; 6 Bing. 394; 3 N. C. 671. (5) AnU p. 60. (6) Golding V. Nias, 5 Esp. 272. See Johnson v. Mason, 1 Esp. 89. (7) See 2 A, & E. 340. (8) 1 Bing. 210 ; S. C, more fiiUy reported 8 B. Moo. 53. 70 What Interest disqualifies a Witness. [CH. IV. Baker(l) that where distinct cognizances are made under different parties, ■who do not appear to be in any manner connected in interest, if one of the cognizances be abandoned at the trial, the party, under whom it is made,' is a competent witness for the defendant. Lord Denman, C. J., in delivering the judgment of the court, after observing that there was reason to suppose that the facts of the case of Upton v. Curtis were not reported with perfect accuracy, said, the court were of opinion, that the offer to abandon the issue joined on the cognizance under the witness, was tanta- mount to consenting that a verdict should be found for the plaintiff on that issue.(2) In Upton v. Curtis, the defendant had pleaded^ first, an avowry for rent due from one P. as tenant to the defendant, and secondly, a cognizance by the defendant as bailiff to P. for rent due to him. The plaintiff, in fact, being tenant to P. was tenant to the defendant. The court held, that P. was not a competent witness for the defendant, to prove the amount of the plaintiff's rent, although the cognizance was abandoned; and this may have been because the proposed witness had an interest in reducing his own rent by raising that of his tenant.(3) ■ Both these cases occurred before Lord Denman's Act. In the recent Nisi Prius case, however, of Girdlestone v. M'Gowan,(4) which was tried after that statute, where two defendants made cognizance, first, as bailifEj of A. and B., and secondly, as bailiffs of A. alone, it was ruled that B. could not be called as a witness to sustain the second cognizance, though the defendants gave no evidence to support the first and offered to aban- don it. Alderson, B., before whom the cause was tried, after consulting with Lord Denman, C. J., who sat in the Crown Court, said: "I have con- sulted the best authority on the construction of this act, and he is of opinion that I ought to reject the witness. The defendant has put upon the record a cognizance, in which he justifies as bailiff under the pro- posed witness, and the case is therefore within the exception referred to. It is too late now to abandon the first cognizance. That should have been done before the trial." The defendants obtained a verdict and the point, therefore, was not raised in the court above. It does not appear that the case of King v. Baker was brought at the time under the notice of their Lordships. The decision in that case cer- tainly appears to be at variance with the ruling in Girdlestone v. M'Gowan ; and if the law is correctly laid down in the former case, it does not appear to have been altered by Lord Denman's Act, which does not render a conu- sor in replevin positively incompetent as a witness, but merely provides (1) 2 A. & E. 333. (2) 2 A. & E. 339, 340. In Hart v. Horn (2 Campb. 92), it was ruled that the declaraUona of a party under whom cognizance had been made, were inadmissible in evidence for the plaintiff (3) See 2 A. & E. 340. (4) 1 C. & Kir. 702. SEC. III.] Persons in whose behalf Action brought, dec. 71 that the general removal of interest as a cause of incompetency shall not have the effect of rendering such a party competent. In the still more recent case of "Walker v. Giles,(l) tried before "Wilde, C. J., where there were several cognizances, his Lordship held, that a per- son under whom one of such cognizances was made was a competent wit- ness to prove matters distinct from and independent of that particular cog- nizance. The report of this case unfortunately does not state what these matters were. Persons in whose behalf action brought or defended. In the foregoing instances the application of the new statute is compara- tively easy ; but questions of difSculty are likely to arise with reference to the parties who still remain incompetent to give evidence as being the per- sons "in whose immediate and individual behalf any action is brought or defended, either wholly or in part." In a case which occurred before the passing of the statute, where the plaintiff's attorney had been examined as a witness on his behalf, and it was afterwards discovered that the plaintiff had previously assigned to him all his interest in the event of the suit, the Court of Common Pleas set aside a verdict found for the plaintiff and granted a new trial.(2) It was urged that the mere fact of a witness having been examined, who turned out to have an interest in the event, /was not a ground for granting a new trial ;(3) but Tindal, C. J., said, the court made the rule absolute, on the ground of mala praxis ; the witness, the attorney on the record, being the real plaintiff. Person substantially interested. "When an action is brought by or against a person as a trustee for another, the person substantially interested in the action, though not nomi- nally a party, was always considered incompetent by reason of a direct interest ; and he will still continue so, as the action is brought in his immediate and individual behalf. One test whether a witness stands in that situation seems to be whether his admissions would be evidence against (1) 2 C. & Kir. 670. (2) Wade v. Simeon, 2 0. B. 342. (3) See Dewdney v. Palmer, 4 M. & W. 664 ; Turner v. Pearte, 1 T. E. 111. Where the plaintiff transfers his interest in the cause of action, pending the suit, the court may and will, under proper circumstances and conditions, order the assignee to be substituted as plain- tiff in the action. Howard v. Taylor, 11 How. Pr. R. 309. But the court will not make such an order for the purpose of rendering the plaintiff a witness in the cause ; nor wUl they, as a gene- ral rule, mal^ethe order of substitution, except upon the condition that the present plaintiff shall not be examined as a witness in the suit. Harris v. Bennett, 1 Code Rep. (N. S.) 203 ; Murray v. Genl. Hut. Ins. Co., 2 Duer, 607. The order in such a case can only be made upon the application of or notice to the assignee, pending the suit. M'Gowan v. Leavenworth, 2 B. D. Smith's R. 24 ; Howard v. Taylor, swgra. The assignee in such a case, though not substituted as plaintiff in the action, is clearly the party for whose immediate benefit the action is prosecuted. 72 Persons in whose Idialf [CH. ly. the party on whose behalf he is called ;(1) another test is, whether the witness would have been rendered competent under the old law by release ; if he would, he will now be competent without one.(2) In an action on a policy of insurance, (3) where the declaration averred that the policy was made in the names of the plaintiffs as agents for the sole use and benefit of A. and B., who were interested in the goods insured, it was held, before the statute, that neither of the persons so inte- rested was a competent witness for the plaintiffs ; and that even their release to the plaintiff of all actions for any sums to be recovered by them on the policy, would not restore their competency ; for it must be presumed, until the contrary be shown, that, as they were interested in the policy, the action had been brought by their authority, and they were liable to the attorney for the costs of the action. And the circumstance that the nomi- nal plaintififs in the action had received an indemnity from other persons was held not to make any difference, the witness still remaining liable to the attorney in respect of costs. In this case, the action appears to have been brought in the immediate and individual behalf of the persons who ■Vvere interested in the insurance, and consequently they would remain incompetent under Lord Denman's Act. But in an action of trover for two promissory notes, (4) where the defendant pleaded that, before the plaintiff was possessed of the notes, one M. was lawfully possessed thereof as of his own property; that they had been fraudulently obtained from M., and wrongfully delivered to the plain- tiff; whereupon the defendant, as the agent of M., and by his authority, took the notes out of the possession of the plaintiff; and the replication trav- ersed the property in M. : the defendant called M. as a witness to support the af&rmative of this issue ; and he stated, on the voir dire, that he had not indemnified the defendant, and that he had nothing to do with the action ; it was held that he was an admissible witness, at least under Lord Denman's Act, even if he were not so at common law ;(5) inasmuch as he had no immediate interest in the event of the suit, and the verdict could not be available for him in any subsequent action. In this case, Maule, J., observed, " If on the voir dire the witness had said, ' I directed the defendant to obtain possession of the notes for use, and agreed to indemnify him against the consequences of any action that might be brought against him for so doing,' then he would have been the person in whose immediate behalf the action was defended." For it seems, in the case suggested by the learned judge, although a verdict for the defendant would have left the (1) By Parke, B., in Sage v. Robinson, 18 L. J. (N. S.) Exoh. 31; S. 0., not S. P., 3 Exch. R. 142. (2) By Pollock, 0. B., Id. 3 Exoh. R. 145. (3) Bell V. Smith, 5 B. & C. 188. See also Smith v. Lyon, 3 Campb. 465. (4) Hearne v. Turner, 2 0. B. 535. ' - (6) But see Green v. Warburton, 2 Moo. & Rob. 105. SEC. III.J Action brought or defended. 73 notes in his possession, he would, upon his own plea, have been possessed of them as trustee and not merely as agent for the witness. So, in an action by a ship-broker against the owner of a ship, for com- mission in procuring a charter for the ship,(l) where a witness was called for the plaintiff and stated, on the voir dire, that he had introduced the defendant to the plaintiff, that he had nothing to do with the negotiation and had no claim on the former, but that he was to receive half the com- mission from the plaintiff if he recovered, pursuant to an agreement between them to that effect, and the custom amongst brokers ; it was held, that the witness was competent under Lord Denman's Act. And in a later case, (2) where a witness stated on the voir -dire that he had agreed to pay half the defendant's costs, and that he defended the action jointly with him, it was held, that he was nevertheless a competent witness for the defendant under Lord Denman's Act, as not being a person in whose immediate and individual behalf the action was defended either wholly or in part ; even if he were not admissible under the stat. 3 & 4 Wm. IV, c. 42, § 26. Parke, B., observed, in that case, " the plaintiff is to show that the witness is disqualified ; but that has not been done. At present, it appears only that the defendant has been indemnified by the witness. It is often difficult to ascertain the dividing point between the case of one who has indemnified, and one who is a party to the suit." So, on the trial of an ejectment between devisees claiming under differ- ent wills of the same testator, a person to whom a legacy (charged upon the land, the subject of the action) had been given by the will, under which the defendant claims, is now a competent witness for the defendant, as the action is not defended for the witness's- immediate but only for his mediate benefit.(3) Before the passage of Lord Denman's Act, in general, a partner, (4) (1) HiU V. Kitching, 3 0. B. 299 ; S. C. at N. P., 2 C. & Kir. 278. Where a party executes a contract in his own name, whereby he sells a certain quantity of goo^a or grain, and the vendee brings an action thereon, oral proof is not admissible to show that the party so executing the contract in his own name did so as an agent, and thereby charge the defendant or person not named in the instrument as principal. Fenby v. Stewart, 5 Sand. R. 101. (2) Sage T. Robinson, 3 Exch. R. 142. The same rule has been substantially adopted under our statute ; thus a party entitled to a sum certain depending upon the success of the action, and an assignor who has covenanted that the whole amount of the claim in suit is due, are competent witnesses, though as strongly inte- rested in the event of the suit as a party who has agreed to pay a portion of the costs. Davisbn V. Miner, 9 How. Pr. 524; "Winthrop v. Myer, 1 Abb. Pr. 385 ; 2 Id. 449. (3) Doe d. Bengo v. Nioholls, 18 L. J. (N. S.) Q. B. 81. (4) Goodacre v. Breame, Peake N. P. C. lU; Evans v. Teatherd, 2 Bing. 133. See also Cheyne v. Koops, 4 Esp. 112 ; Jackson v. Galloway, 8 C. & P. 480. One of a firm not sued, is, at common law, a competent witness for his copartners in an action against them, for a debt alleged to be due from the firm, on being released by his partners from all UabUity to contribute ; though the English rule required also a release from him to the firm of his interest in the assets of the firm, so far as respects the demand in controversy. Lefierta v. De Mott, 21 Wend. 136; 3 Cowen, 84 j 3 Wend. 240. 74 Persons in whose behalf [CH. IV. a co-contractor, (1) a joint maker of a promissory note, (2) and a co-obligor in a bond,(3) were held not to be competent witnesses for the parties sued ■with whom respectively they participated in interest. In each of these cases the witness was held incompetent as being inte- rested in the event of the suit ; but now, upon that ground, such an objec- tion would no longer prevail ; and it does not seem that in any instance it could successfully be argued that the person tendered as witness was one in whose immediate and individual behalf the action was defended, either wholly or in part. In a late case, (4) where a partner who had already had a judgment against him, was called as a witness to prove the same debt against his copartner, but it did not appear by the record that he was an ipterested party, it was ruled by Tindal, C. J., that he was a competent witness under Lord Den- man's Act. And in an action against one of two part owners of a vessel upon a charter party made by him alone, it was held, that the other part owner, who was no party to the action, and did not authorize the defence, was a competent witness for the defendant.(5) An opinion was intimated by Maule, J., during the argument, that the witness was competent at com- mon law ;(6) and it was admitted, that at any rate he might have been rendered so under the statute 3 & 4 Wm. IV, c. 42, § 26. In actions brought by or against the assignees of a bankrupt, the rule was formerly well established that the bankrupt could not be called as a witness either to support or defeat the commission, or fiat ;(7) and this rule was considered as resting, not entirely upon the ground of interest, but partly upon considerations of policy and convenience. (8) Before the passing of the 6 & 7 Vict. c. 85, however, it was ruled by (1) Hall V. Eex, 6 Bing. 181 ; Toung v. Baimer, 1 Esp. 103 ; Hare v. Munn, Mo. & M. 241, n. a. Where a defendant bas no separate defence in an action on a joint contraot, a co-defendant called as a witness could prove nothing that would not enure to his own benefit, as well as to the benefit of his OQ-defendant; and as to such mattery he was therefore held incompetent. King V. Lowry, 20 Barb. 532. (2) Slegg V. PhUlips, 4 A. & E. 852. Where an action was brought against two defendants, upon a joint and several promissory note, neither of them was allowed to testify for the other, to prove a payment thereon ; on the ground that such testimony would go for the benefit of the witness, as well as of his co-defend- ant. Newall V. Salmons, 22 Barb. Git. (3) Townsend v. Downing, 14 Bast, 565. (4) Cupper v. Newark, 2 C. & Kir. 24. (5) Atkinson v. Poster, 1 0. B. 112. (6) Id. 114. But see Jones v. Pritchard, 2 M. & "W. 199. (1) See Field v. Curtis, 2 Stra, 828; Ewens v. Gold, B. N. P. 40; Oxlade y. Perchard, 1 Esp- 288 (commented upon in Sayer v. Garnett, 1 Bing. 104) ; Hoffman v. Pitt, 6 Esp. 25; Wyatt v. Wilkinson, Id. 181 ; Cross v. Fox, 2 H. Bl. 219, n. a; Flower v. Herbert, Id. ; Chapman v. Gardner, Id. ; Ferguson v. Spencer, 1 K & G. 987. (8) See 14 M. & W. 256, SEC. iii.J Action brought or defended. 75 Lord Denman, C. J., at Nisi Prius, in an action against the assignees of a bankrupt for seizing goods alleged to have been assigned to the plaintiff by the bankrupt before his bankruptcy,(l) that the bankrupt was a com- petent witness for the plaintiff, to prove that the assignment was made for a valuable consideration and in consequence of pressure, although the defendants relied on the assignment to the plaintiff as constituting in itself an act of bankruptcy. And since that statute, it has been held by the Court of Bxchequer,(2) that a bankrupt is a competent witness, in an action by his assignees against parties claiming under an execution to prove notice to them of a prior act of bankruptcy. And the court intimated a strong opinion that he would also be competent, since Lord Denman's Act, to prove the peti- tioning creditor's debt, or the act of bankruptcy, or any fact which tended to support the fiat- In the case of bankruptcy or insolvency, the interest of the bankrupt or insolvent in the fund is of the nature of a residuary interest, being sub- ject to the rights of creditors, who are the persons primarily interested in any fund resized by the assignees. The amount of the creditors' divi- dend must depend upon the amount of the fund, and a creditor was, there- fore, before the statute, held to be an incompetent witness for the purpose of increasing the estate, on account of this direct interest in the event of the suit. He could not, therefore, give evidence to deprive the bankrupt of his allowance.(3) And since the statute it has been ruled in an action by the assignees of a bankrupt to recover money paid by the bankrupt, by way of fraudulent preference, (4) that a creditor under the fiat is inad- missible as a witness for the plaintiff, as being a person in whose imme- diate and individual behalf the action was brought. The creditor of a bankrupt is also interested in supporting the bank- ruptcy, the effect of the bankruptcy. being to appropriate the whole estate and effects of the bankrupt towards the immediate satisfaction of his credi- tors. A creditor was, therefore, before the statute, held an incompetent witness to support the fiat, and it was considered immaterial, whether he had or had not availed himself of the right of proving under the bank- ruptcy.(5) The petitioiaing creditor was, a fortiori, incompetent to sup- (1) Smith V. Groom, 2 Mo. & R. 388. (2) Udal v. "Walton, 14 M. & "W. 254 (3) Shuttleworth v. Bravo, 1 Stra. 507. Oa the same principle, one who has made an aasignmeht fbt the benefit of Creditors is a com- petent witness in an action by the assignee. His Interest is residuary, and subject to the rights of the creditors, who are primarily interested in the fund to be realized from the assigned property. AJlen v. Hudson Eiyer Mut. InS. Co., 19 Barb. 442. A different rule has been held in the case of an involuntary assignment, without any good reason, since the relation of the parties does not depend upon the form In which it is created. Vanduzen v. "Worrell, 18 Barb. 409. (4) Belcher v. Brake, 2 0. & Kir. 668. (6) Adams v. Malkin, 3 Campb. 643 ; Crooke v. Edwards, 2 Stark. 303, overruling "Williams v. 76 Parties in whose behalf Action brought, &c. ' [CH. TV:. port the fiat, for (independently of the objection just mentioned, which applied to other creditors) he gives a bond to the chancellor, conditioned to establish the fact upon which the validity of the^ia^ depends. (1) And this rule was held to apply even though the petitioning creditor had assigned over his debt to a third person .(2) But before the passing of Lord Denman's Act, it was ruled, in an action of trespass against assignees, (3) in which the plaintiff relied upon an assignment by the bank- rupt to him before the bankruptcy, and where no notice had been given of disputing the bankruptcy, that the petitioning creditor, having assigned his debt and executed a release to the assignees, was a competent witness for them to prove an act of bankruptcy prior to that on which the adjudi- cation took place, for the purpose of overruling the alleged assignment to the plaintiff. And since the act, it has been held,(4) that the petitioning creditor is a good witness to support the fiat. Before the passing of Lord Denman's Act, in an action against a sheriff by the assignees of a bankrupt, (5) to recover the proceeds of the bank- rupt's goods which had been sold under an execution, it was ruled by Coltman, J., that the sheriff's of&cer, who had given the usual indemnity bond to the sheriff, was not a competent witness for the defendant, even though his name were indorsed upon the record under the 8 & 4 Wm. IV, c. 42 ; his Lordship observing, that the officer was substantially the defend- ant in the action. But since the statute, in an action against the sheriff,(6) for not taking a party upon a capias ad satisfaciendum, it was ruled that the officer to whom the warrant upon the writ had been granted, was a com- petent witness for the defendant, notwithstanding that he had given the bond of indemnity ; it appearing that he had given no instructions to defend the action. These cases are mentioned as illustrating the principle established by Lord Denman's Act, and showing what parties are or are not to be con- sidered as persons in whose immediate and individual behalf an action is brought or defended. Stevens, 2 Campb. 301. And see 1 Eose, 392, n. ; Bx parte. Malkin, 2 Rose, 21 ; Ex parte Osborne, 2 Ves. A B. 171. (1) Green v. Jones, 2 Campb. 411. (2) Carruthera v. Graham, 2 Mo. & R. 368 ; S. C, C. & Marsh. 5. (3) Smith V. Groom, 2 Mo'. & R. 388. (4) Johnson v. Graham, 2 C. & Kir. 808. (5) Groom v. Bradley, 8 0. & P. 50. See also Powell v. Hord, 2 Ld. Raym. 14U ; S. C, 1 etra. 650. (6) 'Wilson V. Magnay, 1 C. & Kir. 291 ; Wheeler v. Senior, Id. 293, n. SEC. IV.J Of Incom'petency of Husband or Wife of Party. 7^1 SECTION IV. Of the Rule Considered with Reference to the Husband or Wife of an Incom- petent Party. As a party to a suit is not a competent witness, so neither at common law is the husband or wife of the party competent to give evidence for or against the party.(l) And this rule remains the same under Lord Den- man's Act, both as to the husband or wife of the actual party to the suit or of the person in whope behalf the action is brought or defended. T&e rule is the same in equity. (2) (1) Co. Litt. 6 5; Hawk. b. 2, c. 46, § 10; Gilb. Ev. 119; B. N. P. 286. (2) See Sedgwick v. Watkins, 1 Tes. 49 ; Towlea v. Toung, 13 Tea. 144 ; Langley v. Fisher 5 Beav. 443. The parties to the action were by the act to amend the Law of Evidence (14 & 15 Tiot. e 99), passed in August, 1851, rendered competent and compellable to give evidence on behalf of either or any of the parties to the suit, action or other proceeding. The same act contained the following exceptions : " § 3. Nothing herein contained shall render any person who, in any criminal proceeding, is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against him- self or herself, or shall render any person compellable to answer any question tending to crimi- nate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband." " § 4. Nothing herein contained shall apply to any action suit, proceeding or biU in any court of common law, or in any ecclesiastical court, or in either house of Parliament, instituted- in consequence of adultery, or to any action for breach of promise of marriage." Under the above provisions, it was adjudged that a wife is not a competent witness for her hus- band, who is a party to the suit. The third section seems to imply that she is competent in oivU cases; but it was expressly held in Stapleton v. Crofts, that she was not thereby rendered com- petent — her exclusion under the common-law rule being founded, not on the interest of the party, but on reasons of public pohcy. 83 Eng. Com. Law. Eep. 365 ; S. C, 18 Adol. & EUis (N. S.) 367 ; Alcock v. Alcock, 12 Eng. Law & Eq. 354. ' ' Under a still later statute (16 & 17 Tiot. u. 83), husbands and wives are rendered competent and compellable, in aU civil cases, to give evidence " on behalf of any or either of the parties to the said suit, action or proceeding ;" but this provision does not extend to criminal cases nor to cases of adultery; and neither husband nor wife is competent or compellable to disclose any com- munication made to him or her by the .other during marriage. Our code (§ 390) declares that a party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties;" but it has been held that the defendant cannot, under this provision, be called and examined as a witness for the plaintiff in an action for a divorce for adultery (Arborgast v. Arborgast, 8 How. Pr. R. 297) ; nor where the husband and wife are both sued for work, labor and materials furnished to the wife (Main v Stephens, Voorhies' Code, 549) ; or for assault and battery. Pillow v. Bushnell 5 Barb. 156 The Code (| 398) provides that no person offered as a witness shall be excluded by reason of his interest in the event of the action ; but it has been adjudged that a married woman cannot be compelled to testify as a witness in an action against her husband ; her incompetency at com- mon law being placed on grounds of public policy, as well as interest. Erwin v. Smaller, 2 Sand. 340. Nor is the husband a competent witness in an action where the wife sues alone for her separate property. Hasbrouek v. Yandervoort, 4 Sand. 696. 78 Of Incompetency of Husband or Wife of Party. [CH. iv. No other relation, however, is excluded :(1) a father may give evidence for his son, or the son for his father ; although the relation between them may influence his testimony, it will not render him incompetent. The reason for excluding the husband and wife from giving evidence either for or against each other, is founded partly on their identity of in- terest, and partly on a principle of public policy, which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice. They cannot be witnesses for each other, be- cause their interests are absolutely the same ; they are not witnesses against each other, because this is inconsistent with the relation of marriage, and the admission of such evidence would lead to disunion and unhappiness, and possibly to perjury. (2) This general rule of evidence, which has been adopted for the purpose of promoting a perfect union of interests, and of securing mutual confi- dence, is so strictly observed, that even after a dissolution of marriage by divorce, the wife is not admitted to give any evidence of what occurred during the marriage, which would have been excluded if the marriage had continued.(3) This, as Lord EUenborough, C. J., has said, (4) is on the ground, that the confidence which subsisted between them at the time, shall not be violated in consequence of any future separation. Thus one great cause of distrust is removed, by making the confidence, which once subsists, ever afterwards inviolable in courts of law. Upon the same principle, where the marriage has been terminated by the death of either party, the survivor will not be permitted to give evi- dence of transactions that occurred during the marriage. Thus, in an ac- tion by an executor, it has been held, that the widow of the testator can- The wife is a competent witness for her husband, under a late statute in the state of Connec- ticut. Merriam v. Hartford & N. H. R. R. Co., 20 Conn. R. 354. (1) 1 Hale, P. C. 303 ; 2 Id. 216 ; Hawk. b. 2, c. 46, § lO ; B. N. P. 28? ; 1 Wils. 332. (2) See by Tindal, 0. J., in O'Connor v. Majoribanks, 4 M. & G. 443. (3) Monroe v. Twisleton, Pea. Add. Ca. 221. (4) In Aveson v. Kinnaird, 6 Bast, 192. Barnes T. Comack (I Barb, 392) is to the same effect, holdmg that the rule excluding the wife from giving testimony against her husband, continues to apply after a dissolution of the marriage contract, as regards transactions that took place previous to the divorce, and coming to her knowledge in consequence of the mutual trust and confidence arising out of the marriage rela- tion. She cannot prove a contract made by her husband. Cook v. Grange, 18 Ohio 526. But there are exceptions to the rule. Thus, in bastardy cases, where the mother is a married woman, though not competent t» prove the non-access of the husband, she is, from the necessity of the thing, constantly admitted to prove the criminal intercourse by which the child was begotten. The King v. Lufife, 8 East, 193 ; The King v. Inhabitants of Kea, 11 Id. 132 ; Canton v. Bent- ley, 11 kass. 441. And in an action for criminal conversation with plaintiff's wife, the plaintiff has been permitted, alter showing a divorce a vinculo matrimmii, to prove the adultery by her • I the giving of such testimony, after a divorce, does not betray any trust or confidence arising out 'of the former relation. Ratcliff v. "Wales, 1 Hill E. 63; Dickerman v. Graves, 6 Cush. 308. SEC. rv.] Of Incompetency of Husband or Wife of Party. 79 not be allowed, on tlie part of the defendant, to give evidence of a conver- sation between herself and the testator,(l). In one case,(2) indeed. Lord Tenterden, C. J., had ruled that a widow was a competent witness for the plaintiff in an action brought against the executors of the husband on his promise ; but this case must be considered as overruled by a more recent decision, (3) where, in an action of trover for certain goods brought by the representative of the husband, it was held, that his widow was not admissible as a witness for the purpose of showing that she pledged the goods with the defendant by her husband's authority. (4) Bule not confined to confidential communications. This rule, which considers the intimate relation subsisting between married parties as not dissolved by divorce or death, so as to let in the evidence of either -party, as to transactions occurring during their joint lives, is not confined to cases where the communications between the hug- band and the wife are of a confidential nature. Such a limitation of the rule would very often be extremely difiicult of application ; and would introduce a separate issue in each cause, as to whether or not the commu- nications between them were of a confidential nature.(5) But where a feme sole, being the payee of a promissory note, married, and her husband survived her, it was held, in an action by her administra- tor against the maker, that the husband was a competent witness to prove payment of the interest to him during coverture, so as to take the case out of the Statute of Limitations. (6) This case was decided upon the ground that the husband had not, by the receipt of the interest, reduced the note into possession, and that he was not the person in whose behalf the action was brought. In a case before Lord Hardwicke, he would not suffer a wife to be a (1) Doker v. Hasler, 1 Ey. & Mo. 198, by Best, C. J. (2) Beveridge v. Minter, 1 C. & P. 364. It is remarked in a note in 4 M. & G. 439 e that the verdict in this case being for the defendant, the objection could not be brought before the court (3) O'Connor v. Majoribanks, 4 M. & G. 435. (4) See Humphreys v. Boyce, 1 Mo. & R. 140, post. Where the husband or wife is dead, the other may, it seems, give evidence of-faots affecting the estate of the deceased, that did not come to his or her knowledge through the relation of confidence existing between them. Pike v. Hayes, 14 N. Hamp. 19. The late English statute rendering them competent and compellable, in all civil cases, to give evidence on behalf of either of the parties, expressly declares that they shall not be competent to disclose any communication made to him or her by the other during marriage. 16 & 17 Vict. c. 83, § 3. The husband be- ing dead, the wife has been held competent to show the execution of a deed to a third person. Gaskill V. King, 12 Ired. 211. But she is not permitted at common law, after his death, to dis- close communications made to her by her husband, concerning his affairs, when no other person waa present. Babcock v. Booth, 2 Hill R. 181 ; Osterhout v. Shoemaker, 3 Hill E. 519, (5) By Tindal, C. J"., 4 M. & G. 443. (6) Hart v. Stephens, 6 Q. B. 937. 80 Of Incompetency of Husband or Wife of Party. [CH. iv. •witness, though her husband consented.(l) " The rule," he said, " is for the peace of families, and such consent should neyer be encouraged." But in another case,(2) Best, C. J., expressed his willingness to receive the evi- dence of the defendant's wife, if the defendant had consented ; but there he refused his consent. Where a party consents that his wife shall be examined as a witness against himself, there can be no violation of confi- dence, which is a principal ground of the rule of exclusion ; but the proba- bility, that if such evidence were generally admitted, family dissensions might be increased, is not altogether obviated by the circumstance of consent. The same reason applies to the declarations of the husband or wife. Where an action is brought by or against the husband, or by the husband and wife jointly, in right of the wife, the general rule is, that the declara- tions of the wife are not evidence against or for the husband .(3) In an action of trespass against a husband and wife, the wife's confession of a trespass, committed by her, cannot be given in evidence against the hus- band.(4) In an action for goods supplied to the defendant's wife, who, as it appeared, lived separate upon an allowance from him, it was held, that her declarations as to the receipt of the allowance could not be admitted in his favor.(5) A discourse between the husband and wife, in the pres- (1) Barker v. Dixie, Rep. temp. Hardw. 264. (2) Pedley v. Wellesley, 3 C. & P. 558. Note 34. — "Where the hushand is ■-■ party, the wife cannot be a -witness either for or against him. Pitch v. Hill, 11 Mass. Eep. 286 ; Commonwealth v. Shriver, Quarter Sessions, Phila. 1820, MS. ; City Banl£ v. Bangs, 3 Paige, 36. She shall not be examined against her hnsband, on his trial for murder, even by consent of the parties. Randall's Case, before Tan Ness, J., 5 Cit. H. Recorder, 141, 153, 154. Nor can she ' be examined for the plaintiff, though the defendant married her after the plaintiff had subpoenaed j her in the cause. Pedley v. "Wellesley, 3 Carr. & Payne, 558. In one case, the court refused to hear the husband as a witness against one indicted for larceny jointly with his wife, though she was not taken, and the district attorney entered a noUe proseqm as to her ; for, perhaps, her husband might disclose enough to requu^e that a bench warrant should issue against her. The People v. Colbern, 1 "Wheel. Cr. Gas. 419. (But where two pefsons were jointly indicted for an assault, and one of them was defaulted on Ms recognizance, his wife was held a competent witness for the other. The State v. "Worthing, 31 Maine, 62.) (3) "Winsmore V. Greenbank, "Willes, 5'I'7; Alban v. Pritchett, 6 T.'R. 620; Barron t. Gril- lard, 3 "Ves. & B. 165 ; Baker v. Morley, B. N. P. 28. (4) Denn v. White, 7 T. R. 112. (5) Hodgkinson v. Fletcher, 4 Campb. 10. The husband being dead, the wife is not incompetent to prove a fact coming to her knowledge by the open declaration of her husband in the presence of other persons. Pike v. Hayes, 14 N. Hamp, 19 ; Hay v. Hay, 3 Rich. Bq. 384. But she cannot disclose communications made to her alone. Baboock v. Booth, supra. Neither the husband nor wife is a competent witness against the other, much less can the declarations of one be proved as against the other. Pillow v. Bush- nell, 5 Barb. 156 ; where it was held that in an action brought by the husband and wife for an assault on the wife, the latter could not be called as a witness. Note 35.— See The City Bank v. Bangs, 3 Paige, 36. On the trial of an indictment against husband and wife for receiving stolen goods, the declarations of the wife respecting the goods, SEC. IV.] Of Incompetency of Husband or Wife of Party. 81 ence of a third person, may be given in evidence against the husband, like any other conversation in which he may have been concerned. Letters written by the husband or wife are subject to the same rule as their declarations. In general, letters written by the husband to the wife may be read as evidence against him, but her letters to him will not be evidence for him.(l) This rule is intended for the protection of persons who have entered into the relation of husband and wife ; and does not extend to those, who, not being married, have lived together and cohabited as man and wife. Where ■which were found in the husband's house, were offered in evidence; and though the declarations tended to criminate the husband, held that they must, notwithstanding, be received, in order to show the guilt of the vrife ; and the jury must take care that they did not operate to the preju- dice of the husband. Commonwealth v. Briggs, 5 Pick. 429. Declarations of a wife, made in the absence of the husband, are not evidence against him, though she be a party to the suit, which is brought to recover land in which she is jointly inte- rested in her own right. Moody v. Fulmer, Whart. Dig. (2d ed.) 308, pi. 439 ; Turner and wife V. Coe, 5 Conn. Bep. 93. (The wife's admission during coverture, of a debt due from her before marriage, is not admissible as evidence against her husband. Ross v. Winners, 1 Halst. Eep. 366 ; Hawkins v. Hattou et ux., 2 Nott & M'Cord, 374, S. P.) Note 36. ^On the other hand, the learned author seems to have erred in laying down the rule as general, that the declarations of the husband shall not be received to affect the wife. It is be- lieved that where they are joint parties, as they must be if both are alive, either as plaintiffs or de- fendants, even in respect to matters which, independent of the coverture, would concern the wife alone, the husband's declarations should be received against both. Accordingly, it has been ad- judged that, in an action for a wrong done to the wife (e. g. slander), brought, as it must be, in their joint names, his admissions (e. g. that the slander did not originate with the defendant) are ad- missible against both. Evans v. Smith, 5 Monroe, 363, 364. Otherwise where she is a sole party claiming under a right paramount to the husband's, after his death, though his admission may have been made during coverture. Thus, an admission of the deceased husband, in respect to his widow's claim of land in her oWn right, are not adinissibl^ against her, for her claim is not through, but independent of him. Smith v. Scudder, 1 1 Serg. & Eawle, 325. Where the wife is indicted for a crime, living the husband or after his decease, the pro- priety of the exception is still more striking; Thus, on trial of an indictment against a married woman for larceny, where evidence that her husband had deposited a sum of money for the use of the person whose property she was alleged to have stolen, to be paid over to him In case he should not appear at the trial to testify against her, which sum was afterwards paid over to him he not having appeared according to his recognizance — ^was received as evidence against her ; and the jury were told they might infer her privity with and consent to the husband's acts ; and she was convicted ; a new trial was granted, the court saying that acts done by the defendant's husband, without her knowledge, were improperly admitted. Commonwealth v. Bobbins, 3 Pick. 63. (1) B. N. P. 28. Note 31. — Such letters are admissible, whether written to the husband or othera, to show the state of the wife's feehngs, although they may also state a fact which would not strictly be evi- dence. Willis V. Bernard, 8 Bing. 376. So, in an action against the husband for necessaries furnished the wife, upon an allegation that she had left his house on account of his cruel treatment, her letters, written in aflfeotionate terms, are admissible to rebut such allegation. But it must be proved at what time they were written, or they are not so admissible. Their dates are not sufficient proof of the time, when they are offered in fe,vor of the husband, on account of the danger of collusion, though it is gene- rally otherwise. Houliston v. Smyth, 2 Carr. & Payne, 22. Vol. I. 6 82 Of Incompetency of Husband or. Wife of Party. [CH. iv. a •woman, called as a witness by the defendant, had in fact been married to the plaintiff, and lived with him as her husband during the time of the transactions to which she was called to speak, but had ceased to live with him when her former husband (who had been absent fron^ this country upwards of thirty years, and was supposed to be dead) returned from abroad, it was held, that there was no objection to her evidence.(l) Though a person has represented a woman to the world as his wife (to whom he was never married), it has been decided, that she is not, therefore, incom- petent to give evidence in any legal proceeding to which that person is a party, (2) although this seems to have been doubted formerly. (3) In these cases, the parties at the time were not actually husband and wife ; but where that relation does exist at the trial, the rule is so strictly- applied as to render a wife incompetent against her husband, although the marriage took place after the wife was served with a subpoena to give evi- dence in the suit.(4) (1) WeUs Y. Fisher, 1 Mo. & R 99 ; S. 0. ut WeUa T. Fletcher, 5 0. & P. 12. , (2) Batthews v. Gahndo, 4 Bing. 610. (3) See Anon. oit. 1 Price, 83 ; Campbell v. Twamlow, Id. 81. Note 38. — (The legal relation of husband and wife must exist, in order to make it the ground of excluding them from giving testimony for or against each other. Thus, a slave who cohabits with a free woman of color, as her husband, is a competent witness against her on the trial of an indictment for leasing a house to be kept as a bawdy-house. Coleman v. The State, 14 Miss. 157.) And it is now settled that a kept mistress, who has passed as the party's wife, ia com- petent for him ; though it may be otherwise if he habitually allow her to pass as his wife. Seve- ral of the judges recognized the opinion of Lord Kenyon, C. J., cited in the text, as sound law ; though Best, C. J., thought the wife should be so de jure, m order to be excluded. Batthews v. Galindo, 4 Bing. 610 ; S. 0. at N. P., 3 Carr. & Payne, 238 ; S. C, 1 Moore & Payne, 655. And see Randall's Case, 5 C. H. Eec, 141, before Colden, Mayor, and Jay, Recorder. In a case where the woman was sued, a witness who lived with her as her husband was received as competent in her behalf. Meunier v. Couet, 2 Mart. Lou. Rep. 56. (4) Pedley v. "Wellesley, 3 C. & P. 558. Note 39. — Where a party shall lose his witness where the latter voluntarily acquires an inte- rest after the former had a right to his testimony, will be more fully considered in a future note. Where he has attested a paper, his handwriting may sometimes be proved. Ford, J., in Henarie V. Maxwell, 6 Halst. 298. But in general the only way in which the difBculty can be obviated is still to admit him as competent. Commonwealth v. Gore, 3 Dana, 414; Den ex deni. Rem V. Jackson, 2 Dev. 187, 189, 190. This was refused where the witness had mEirried a wife who was interested. Van Home's Bx'r v. Brady, 1 Wright, 452. The commonwealth iti a case where it is not bound to prosecute without security, acquires no ■ interest in the witness's testimony tiU the indictment be found. Therefore, where a witness agreed before that, to indemnify the prosecutor, he was held incompetent for the commonwealth. Com- monwealth v. Gore, 3 Dana, 474. Several courts also require, in addition to the fact that subsequent interest has been acquired that a want of horn fides in its acquisition should also appear. If honestly incurred in the usual course of business, and without any intent, to deprive the party of his testimony, either in the witness or opposite party, he may in this way, render himself incompetent. Eastman v. Win- ship, 14 Pick. 44, 46, 47. See Manchester Manufaot. Iron Co. v. Sweeting, 10 Wend, 162, 164, S. P., per Savage, 0. J. If the party introducing the witness have assented to his taking an interest, he is incompetent. In HoviU V. Stevenson (5 Bing. 493), the plaintiff having assigned an interest in the charter SEC. lY.] Incompetency against each other. 83 It is now proposed to illustrate the rule by a reference to some particular cases ; to show first, that a husband , and wife are not competent witnesses against each other ; and secondly, that they are not competent for each other. 1. Husband and wife not competent against each other. First, it is a general rule,- that husband and wife cannot be witnesses against each other, either in civil or criminal proceedings. In an action brought by a woman as feme sole, the defendant cannot call the plaintiff's husband to prove her married, thereby to nonsuit her.(l) And the wife of a bankrupt cannot be examined to prove. his bankruptcy.(2) In an action brought by a trustee under a marriage settlement, to recover back the value of certain goods which had been sold by the defendant, as sheriff, under an execution against the husband of the cestui que trust, the husband was not admitted to prove, on the part of the plaintiff, that the goods had been conveyed in trust to the plaintiff for the separate use of his (the witness's) wife.(3) In this ease, as the witness's debt would have been discharged by a sufficient execution, his evidence would have been in that respect against his personal interest :(4) but, on the other hand, it was the wife's interest to have the property secured for her sepa- rate use ; and though the action was between third persons, yet it directly affected her interest, the action being brought by her trustee for her benefit, party on which he sued, to the subscribing witness, and the latter refusing to release, evidence of his handwriting was precluded, and the action in consequence failed. (1) Bentley v. Cook, 3 Dougl. 442. (2) Ex parte Jamea, 1 P."Wms. 611. See infra, as to examination before commissioners. (3) Davis V. Dinwoody, 4 T. R. 678. (4) See Bland v. Ansley, 2 K R. 331. Note 31. — The case of Davia v. Dinwoody (4 T. R. B'JS), can hardly be Supported upon a question of interest; but in another view, it may be easily sustained. The wife was the real party, like a lessor in ejectment (ante, note 2 1), or the assignee of a chose in action. Id. These, it will be seen, by the cases there cited, of Robinson v. Neal, and Mauran v. Lamb, are to be deemed the real parties. So in this case of Davis v. Dinwoody, the wife being the real party though the suit was in the name of her trustee, the husband could not be sworn ; not because of his interest, for that appears to be balanced ; but as husha/nd, his wife being a parly. The action could not properly be said to have been between third persons. In this vievv, the case of Richardson v. Learned (10 Pick. 261, 267, cited also in note 42), is quite questionable, as I had occasion to mention in the note referred to. Independent of the strong interest which the husband has in the recovery of his wife's trustee, according to Davis v. Dinwoody, she was the cestui que trust of the plaintiff, who was .suing for her money — ^yet the husband was held competent to testify for her. (It is clear from the later decisions, that the husband is not a competent witness in an action involviQg either the legal or equitable estate pf his wife ; nor the wife against her husband in an action involving his interests. Erwin v. Smaller, 2 Sand. 340 ; Bobbins v. Abrahams, 1 Halst. Ch. (N. J.) 465 ; Footman v. Peudergrass, 2 Strobh. Eq. 317 ; Edwards v. Pitts, 3 Strobh. 140; Mayrant v. Guignard, 3 Strobh. Eq. 112; Hasbrouok v. Vandervoort, 4 Sand. 696; MUler v. "Williamson, 5 Md. 219 ; Joh^8cm. v. Slater, 11 Gratt. (Va^) 321 ; Jones v. Norton, 10 Texas, 120. And it is evident that letters or declarations written or made by either of them cannot in such ' cases be used as evidenee against the other.) 84 Incompetency against each other. [CH. IV. and the real point in issue being whether the goods belonged to her or her husband. The husband and wife are not allowed to be witnesses against each other in criminal proceedings, except in certain cases which will afterwards be mentioned. In a prosecution for polygamy, the first husband or wife can- not be admitted to prove the former marriage against the prisoner ;(1) such evidence would directly criminate, and, therefore, is not admissible for the reason before mentioned. On a trial for murder, the wife of the prisoner cannot be a witness against him. On a prosecution against a woman and others, for a conspiracy in procuring a marriage between her and her hus- band, the man is not a competent witness against her in support of the prosecution. (2) It seems also to be the better opinion, that a wife is not compellable to give evidence against her husband on a charge of high treason. (3) In collateral proceedings. Although the husband and wife are not allowed to be witnesses against each other, where either is directly and immediately interested in the event of a proceeding, whether civil or criminal, yet, in collateral proceedings, not immediately affecting their mutual interest, their evidence is receiv- able, notwithstanding that the evidence of the one tends to contradict the other, or may subject the other to a legal demand, or even to a criminal charge. The rule laid down in the case of The King v. The Inhabitants of Cliviger(4) (namely, that a husband or wife ought not to be permitted to give any evidence that may even tend to criminate each other), is now considered as having been laid down in terms much too general and undefined. This rule was much discussed in the cases of The King v. The Inhabit- ants of All Saints, Worcester, (5) and The King v. The Inhabitants of (!)■ Mary Grigg's Case, Sir T. Eaym. 1. (2) E. V, Serjeant and others, 1 Ry & M. 352, before Abbott, C. J. Pitoli V. Hill, H Mass. 286 ; City Bank v. Bangs, 3 Paige, 36 ; The People t. Colbem, 1 Wlieel. Orim. Caa. 479. (3) H. P. C. 301 ; Brownl. 47, contradicting Sir T. Raym. in Grigg's Case, cited Gilb. Ev. 19 ; B. N. P. 259. (4) 2 T. B. 263. Note 40.— See Pitch v. Hill, 11 Mass. Rep. 286. On the traverse of an indictment for subornation of perjury, whero two witnesses on the part of the prosecution swore that the testimony given by them on a former trial was false, their wives' testimony was held not admissible to impeach that of their husbands, either directly or collate- rally. New York Gen. Sessions, before Radoliff, Mayor; Francis & Jones' Cases, 1 Cit. H. Rec. 121. Qnere. Indeed, it would seem now to be the settled doctrine, both on authority and prin- ciple, that husband and wife may be received to contradict or criminate each other in a collateral matter, i. e. in aU cases except where one is called to contradict or criminate the other as a party to some cause. ^ (5) 6 M. & S. 194 SEC. IV.] Incompetency against each other. 85 Batliwick ;(1) where the Court of King's Bench was of opinion, after much argument, that the rule laid down in the case of The King v. Clivi- ger, was too large and general. It was decided, in The King v. Bathwick, upon a question respecting a female pauper's settlement, where a man had been called to prove his marriage to her, that another woman was a com- petent witness to prove her own previous marriage with the same man ; for although, if the testimony given by both witnesses were true, the hus- band had been guilty of the crime of bigamy, yet nothing that was said by the wife in that case, nor any decision of the Court of Quarter Sessions, founded upon her testimony, could afterwards be received in evidence to support an indictment against him for that crime ; it being altogether res inter alios acta.; neither the husband nor the wife having any interest in the decision of the question. In The King v. Gleed,(2) however, upon an indictment for larceny, (1) 2 B. & Ad. 639. Note 41.— The case of Rex y. Cliviger was still fiirther questioned in The King v. the Inhabi- tants of Bathwick (2 Bamw. & Adolph. 639), where the doctrine in the text seems to be fully confirmed. In that case, on a question of settlement, the husband, C, swore to his marriage with the pauper, but did not say, nor was asked whether he had not been before married to M. She was called and allowed to prove her previous marriage with C, for this is not contradicting her husband, though the court intimate she might do so. As to criminating her husband, within the case of Bex v. CUviger (2 T. E. 263) ; the court doubt that case much ; say it was shaken by Bex V. The Inhabitants of All Saints (6 M. & S. 194) ; and strongly insist that the wife may be received to prove facts which might go to show the criminality of the husband, provided her tes- timony now would not be evidence to affect him in a prosecution against him. (2) 2 Buss. Cr. & M. 983, ed. by Greaves. Note 42. — During the ,trial of five defendants on an indictment for an assault and battery, the coun- sel for the defendants moved that the wife of one of them might be examined as a witness for the other four ; but the court ruled unanimously that she could not be examined. To have had the benefit of her testimony they should have moved to be tried separately from the husband, which the court would have granted, had this been assigned as a reason for the motion. Commonwealth«7. Basland et aL, 1 Mass. B. 15. But guere of this ; for where they severed it was holden that one was not competent for the other. The People v. Bill, 10 John. Eep. 95. It follows that the wife would not be competent. For where Colbern and Elizabeth, the latter being the wife of "Weir, were jointly indicted, and Colbern alone was taken and put upon his trial, the husband was held incompetent for the people, because the wife was so within the case of The People v. BUL The People v. Colbern, 1 Wheel Cr. Gas. 4t9. On this decisiou being made, the district attorney entered a «(*C6 prosequi in her favor and offered her husband again, but the court still rejected him as incompetent, because his testimony might still affect his wife, the noUe prosequi not being final. He might disclose enough to require that the court should issue a bench war- rant against her. To warrant the testimony of the husband • she must first have been tried and acquitted by the jury. Id. 481. Birt see State v. Anthony (1 M'Cord, 286), that the wife may be a witness for one indicted jointly with her husband for murder, but tried separately from him. (Where parties jointly- indicted' are tried together, the wife of one of them is not a competent -witness for the ©thers. The Commonwealth v. Bobinson, IGray (Mass.), 555. But she has I been held competent for the others, where her husband, jointly indicted -with them for an assault has been defeultied upon his recognizance. ' The State v. Worfting, 31 Maine, 62. And where her husband has 'been examuied for th« state, she may be called on the other side to prove that he testified under a/laaa against -the defendant, though not to contradict him. Cornalius v. The State, 7 Bng. 182. 86 iThcolnpeVsncy against each other. [CH. IT. wtere a woman was called, on the part of the crown, to prove that her husband, who had absconded, had been present when the article was ■stolen, and that she saw him deliver it to the prisoner, Taunton, J., after consulting with Littledale, J., rejected the witness. His Lordship said : " The evidence of the wife here would directly charge the husband with being a principal, and although there is no prosecution pending, her evi- dence cannot but facilitate an accusation against her husband. Now, the law does not allow the wife to give evidence against her husband, and it is quite consistent with that principle that this evidence should not be received." It may be doubted, however, whether this ruling was correct. It would certainly appear not to be so upon the principles laid down in R. v. Bath- wick (which was cited in the case ;) for if the husband were indicted for the theft, the wife could not be a witness on that trial, nor could anything she had said on the former trial be in any way adduced in evidence against him. Although a wife is not to be rejected as a witness because her evidence has a tendency to criminate her husband, yet it seems she cannot be com- pelled to give such fevidence.(l) In like manner a wife may be a witness in an action between third per- sons not immediately affecting the interest of the husband, though her evi- dence may possibly expose him to a legal demand : as, in an action between third persons for goods sold and' delivered, to prove that the goods had been sold, not on the credit of the defendant, but on her husband's credit.(2) This evidence, it may be said, was in some measure against the husband, though he was not a party to the suit. On the other hand, to reject her evidence in such a case would be a hardship on the defendant, who may have no other means of defending himself against an unjust demand : and, though upon her testimony the defendant might have a yerdict, and an action might afterwards inconsequence be brought against the husband, she would not Ihen be admitted as a witness, nor could her evidence in the first suit be produced against him.(3) It was held in one case, that in action by the wife's trustee to recover money in trust to her separate use, the husband was a witness for her trustee. Richardson y. Learned, 10 Pick. 261. But qmre ; she was the real party. Suppose a suit by her husband's trustee j could the wife be a witness for him ?) ■ (1) By Bayley, J., in R. v. All Saints, "Worcester, 6 M. & S. 200. (2) "Williams v. Johnson, by King, C. J., 1 Stra. 504 ; S. C, B. N. P. 281. (3) If the husband's interests are involved in the action, as where it isbrought against his trustee, the wife ia not a competent witness. Edwards v. Pitts, 3 Strobh. 140. But in general, where the action is between third persons, the wife is a competent witness where the husband is com- 'petent; thus, where the husband, the payee of a note, indorses it over to a third party, his wife is rendered a competent witness for the holder, on hia executing to the husband a release from liability thereon. Bisbing v. Graham, 14 Penn. State R. 14. The release renders the husband competent (Wheaton v. "Wilmarth, 13 Mete. 422), which also renders his wife competent. So where the wife is interested, her interest must be removed before her husband can be sworn as SEC. IV.] Incompetency for each other. 87 Neither party competent to prove non-acoeBS. It is settled, that either a husband or a wife is incompetent, as well after as before the death of the other party, to prove non-access during wedlock, that is to say, the absence of the fact of sexual intercourse, or of the opportunity of sexual intercourse, whatever may be the form of the legal proceeding, or whoever may be parties to it.(l) This rule is established, independently of any possible motives of interest in the particular case, upon principles of public policy and decency.(2) Nor can either party be examined as to any collateral fact, for the purpose of proving non-access : thus, the husband cannot be asked whether, at a particular time, he did not live at a distance from his wife and cohabit with another woman.(3) Nor is the evidence of either admissible to prove directly the illegitimacy of children born during marriage ;(4) although it has been said that the parents may bastardize their issue by any evidence except that of non- access.(5) Thus a wife will not be permitted to prove that the children, whose legitimacy is in question, are the issue of another man to whom she had been married during her first husband's lifetime.(4:) But on the other hand, a wife may prove the fact of her own adultery .(6) So, in an earlier case, where the question was as to the legitimacy of a party, his mother was called as a witness, to prove that she was not married to the father of the child till after its birth.(7) 2. Husband and wife not competent for each other. Secondly, it is a general rule, that neither the husband nor the wife a witness in the cause. Hough v. Patrick, 26 Vt. (3 Deane), 435. See also Baring v. Eeederi 1 Hen. k Munf. 154. (1) R. V. Rook, 1 Wila. 340 ; R. v. Luffe, 8 East, 203 ; R. v. Kea, 11 East, 132. (2) See by Lord Mansfield, C. J., in Goodright v. Moss, Cowp. 494. See also Cope v. Oope, 1 Mo. & R. 214, and B. N. P. 113 ; Rep. temp. Hardw. 83. (3) R. V. Stourton, (Inhabs.) 5 A. &. E. 180. The non-access of the husband cannot be proved by the wife, though she may testify to the fact of criminal intercourse, and designate the person with wliom such intercourse took place. R-om motives of public decency she is not allowed to bastardize her offspring. The illegitimacy of the child being shown by proper evidence, she is in certain oases permitted, ex Necessitate, to testify with whom she has had sexual intercourse, and who is the father of the child. Rateliff v. Wales, 1 Hill R. 63, 65 ; The People v. Overseers of Ontario, 15 Barb. 286 ; Parker v. Way, 15 N. Hamp. 45. The presumption is that a chUd born during lawful wedlock is legitimate, and this presumption must be overcome by positive testimony. Wright v. Hicks, 12 Geo. 155. Proceedings in cases of bastardy are generally regulated by statute (Chapel v. White, 3 Cush. 637); and in some cases the evidence of the mother is made presumptive proof of the paternity of the child, which is to be disproved by the defendant. Moody v. Gbode, 10 Ired. (N. C.) 49. See, also. The State v. Wilson, Id. 131, 350. (4) R. V. Mansfield, gnhabs.) 1 Q. B. 444. (5) By Patteson, J., in R. v. Stourton, 5 A. &. E. 186. (6) R. v. Reading, Rep. temp. Hardw. 82 ; R. v. Bedell, Andr. 8 ; R. v. Luffe, 8 East, 203. (1) Cooke V. Lloyd, Peake Ev. App. xxviii. In this case declarations of the father and of the son himself were admitted to prove the bastardy of the latter. As to this see, post, Hearsay m Questions of Pedigree. 88 Incompetency of Husband or Wife, &c. [CH. IV. will be allowed to give evidence for eacli other, in civil or criminal pro- ceedings. Where the defendant pleads coverture, the person alleged in the plea to be husband is not a competent witness to proVe bis marriage with the defendant.(l) A husband is incompetent to give evidence in support of the interest of his wife, who takes a reversion in fee in the property in dispute.(2) In' the case of Hawkesworth v. Showier and Boyce,(3) which was an action of :trespass for taking the plaintiff's goods under a distress for rent, (1) Woodgate v. Potts, 2 C. & Kir. 46'7. Note 44.— In the case of Perry, tried on an indictment for a forcible marriage, the wife was received as a, witness for her husband to prove that the elopement and marriage were voluntary. Bristol assizes, 1794; Macnally's Ev, 181; S. C, 2 Hawk. P. C. c. 46, § 77 (Curwood's ed.). This case was tried before Gibbs, C. J., when he was recorder of Bristol. Per Abbott, C. J., in Rex v. Seqeant, 1 Hy. & Mo. N. P. Rep. 354. On an indictment for a conspiracy in inveigling a young girl from her mother's house, and pro- curing the marriage ceremony to be recited between her and one of the defendants while she was intoxicated, the girl was held to be a competent witness to prove the facts. Bespublica v. Hevioe, 2 Teates, 114. The court said they were not competent to determine whether there was a real marriage ; therefore, receiving the evidence, they left it to the jury, vrith instructions that if they found a marriage, they should disregard the testimony. S. C, 3 Wheel. Cr. Cas. 505, 506. Quere. (2) Cornish v. Pugh, 8 D & B. 65. (3) 12 M. & W. 46. (In an action brought by the husband and vrife in relation to her separate estate, he is not a competent witness, nor are his acts and declarations evidence against her. Stuart v. Kissam, 2 Barb. 493. Nor is she a competent witness against him, where she is not a party. .Copous v. Kauffman, 8 Paige, 583. Neither is the husband a competent witness in favor of his wife. Hosack V. Rogers, 8 Paige, 229. But in an action between third parties, she may be examined, where her husband has a collateral interest in opposition to the party calling her. The City Bank V. Bangs, 3 Paige, 36.) Note 45.-^The declarations (deposition) of a wife in extremis, are admissible against the hus- band, charged with her murder. Pennsylvania v. Stoops, Addis. 381. Macnally siys, that in the researches which he had made, he had not discovered any trial for high treason in which the wife was examined as a witness against her husband. Macnally's Ev. 181. It is well stated that, in general, neither husband or wife is admissible as witnesses for or against each other. Corse v.: Patterson, 6 Harr. & John. 153 ; Tacket v. May, 3 Dana, 80, per Robertson, Ch. J. ;' Rigdon's Heirs v. Rigdon's Devisees, 6 J. J. Marsh. 54 ; Sadler v. Houston, 4 Porter, 208. Some cases go so far as to maintain the rule though they have been divorced a vi/ncuh. State v. Phelps, 2 Taylor, 374. But see State v. J. N. B., 1 Id. 36, contra. In cases of book account, where the party is a witness, quere, whether his wife may be received also? Stanton v. Wilson, 3 Day, 37. But she is competent in a prosecution against her husband, for a personal outrage to herself. State v. Boyd, 2 Hill, 288 ; Per Bronson, J., in The People ex rel. Ordronaux v. Chegaray, 18 Wend. 642. In an action , by a woman as a feme sole, her husband is an incompetent witness to prove a marriage. Bentley v. Cooke, 3 Doug. 422. But thougheachsupposed they were married, if in fact the marriage was void, as where the wife had a former husband living, she was held com- petent as ft witness against him, even to prove conversations of her supposed husband during cohabitation. Wells v. Fletcher, 5 Carr. & Payne, 12 ; S. C. nom. Wells v. Fisher, 1 Mood. & Rob. 99. Tlie marriage of slaves in North Carolina is void ; therefore the husband or wife, (slaves) may be witnesses against each other, even in a oapitial case. The State v. Samuel, 2 Dev. & Bat. 177. SEC. IV*J Incompetency of Hvshand or Wife, &c. 89 The oases cited ante, in note 41, and the text, will be found to qualiljr the proposition that the husband or wife are not receivable to make statements contradictory of each other. And even the wife is receivable to show the criminality of the husband, except in cases where her evidence would influence a suit or prosecution against him. See also per Park, J., and Best, C. J., in Henman v. Dickenson, 2 Moore & Payne, 289, 291 ; S. C, 5 Bing. 183 ; Corse v. Patterson, 6 Harr. & John. 153 ; Wilmot's Lessee v. Talbot, 3 Harr. & M'Henry, 2 ; Redman v. -The State, 1 Blackf. 429, 430, 431 ; The People ex reL Ordronaui v. Chegaray, 18 Wend. 637 ; Capehart v. ' Adm'rs of Huey, 1 Hill's Ch. Eep. 409 ; Bell v. Coil, 2 Id. 110. The notion of such testimony bemg inadmissible from policy seems to be pretty much given up in England, though several American cases have gone on that ground. See also Poultney v. Eairhaven, Brayt. 185. These cases are quite uniform that the wife shall not be received to disclose conversations of the hus- band, even though he be dead when she is examined. Per Williams, J., in Edgell v. Bennett, 1 Term. Rep. 537. But the rule is confined to conversations, and does not extend to distinct facts. Williams v. Baldwin, 7 Verm. Eep. 503, 506 ; Wells v. Tucker, 3 Binn. 366. It seems, how- ever, that, to be admissible, the fact must be of such a nature, that it cannot be supposed the wife learned it in consequence of confidence reposed. In assumpsit for board of the defendant's chUd, his wife was refused as a witness agamst him to pro^e his promise to pay while she was his wife, though now divorced by act of Parliament. It was said that her knowledge might have been acquired in consequence of confidence reposed in her by her husband. Monroe v. Twistle- ton. Peak. Add. Cas. 219, 221 ; and see note a, at the last page, for several English cases. The reasoning of Lord Alvanley in the prmcipal case is very strong. The rule does not extend to those who have cohabited as husband and wife without being married, especially after they have separated. Wells v. Fletcher, 5 Carr. & Payne, 22. It was said by Lord Mansfield, in Goodright v. Moss (Gowp. 594), that it is a rule founded in decency, morality and policy, that a husband or wife shall not be permitted to say, after mar- riage, that they have had no connection, and therefore that the offspring is spurious ; more es- pecially the mother, who is the offending party, and that the point had been solemnly decided at the Delegates. See Cope v. Cope, 1 Mood. & Rob. 274. In Bull. N. P. 113, a case is referred to as showing that the wife might be examined after her husband's death, to prove the child a bastard, which is inconsistent with the principle adopted by Lord Mansfield. Lord Hardwicke (Rep. temp. Hardw. 83) puts the incompetency of the wife to give evidence of non-access upon the ground of interest, a ground which would only apply in particular instances, as in orders of filiation. It does not appear clearly how the circumstances of the wife being an offending party can affect the question. That the wife's competency in point of interest follows her husband's, see Corse v. Patterson, 6 Harr. A Johnson, 153 ; Stanton v. Wilson, 3 Day, 37 ; Beach v. Swift, 2 Connecticut Rep. 269 ; Wilmot's Lessee v. Talbot, 3 Harris & M'Henry, 2 ; Williams v. Baldwin, 7 Verm. Rep. 503, 606, 507 ; Jackson v. Heath, 1 Bailey, 355, 356'; Pyle v. Maulding, 7 J. J. Marshall, 202, 203 ; Chambers v. Spencer, 6 Watts, 404 ; Van Deuseu v. Frink, 15 Pick. 449 ; Thomas v. Catheral, 5 Gill & John. 23 ; Cornish v. Pugh, 8 Dowl. & Ryl. 65 ;. Rex v. Smith, Mood Cr. Cas. 289 ; Capehart v. Adm'rs of Huey, 1 Hill's Ch. Rep. 409 ; Bell v. Coil, 2 Id.. 110. But this rule ceases to apply after his death. It is, therefore, no objection then, that he was interested during his lifetime in the fact now sought to be proved by his widow. Edgell v. Bennett, 7 Verm. Rep. 534; Caldwell V. Stewart, 2 Bail. 574; Chambers v. Spencer, 5 Watts, 404. The wife may testify against the interest of the husband in a cause between third persons, if he, being present, do not himself object. Jackson v. Heath, 1 Bail. 355 ; Pedley v. Wellesley, 3 Carr. & Payne, 558. She cannot be a witness for the defendant in a suit against her husband's surety, without a proper release from the surety to the husband. Thomas v. Catheral, 5 Gill & John. 23. The husband being the beneficial, though not the nominal plaintiff, his wife is not an admissible witness for him. Pyle v. Maulding, 7 J. J. Marsh. 203. Nor is the husband a'witness for the wife's trustee in an action (trover) by him for her use. Hopkins v. Smith, 7 J. J. Marsh. 263. * * And see State v. Phelps, 2 Tyler's R. 374; Ratcliffv. Wales, 1 Hill B. 63; and Barnes V. Comack, 1 Barbour's Supr. C. R. 392. In the ease last cited, Barculo, J., lays down the rule that " the testimony of the wife can never be received against her hiisband, except in proceed- ings instituted against him on her behalf. This rule holds not only during the coverture, but 90 Incompetency of Husband or Wife, &c. [CH. iv. the case having been clearly proved against the defendant Boyce, who was the broker employed to make the distress, the other defendant, Showier, for the purpose of showing that he had not authorized the taking of the goods by Boyce, tendered the wife of the latter as a witness. Lord Abin- ger, C. B., however, before whom the cause was tried, was of opinion that she was incompetent ; and the Court of Exchequer upheld this decision,' and refused a rule for a new trial. Lord Abinger said, upon that occa- sion, he was clearly of opinion that the wife was interested ; she had an interest in giving evidence to fix Showier and acquit her husband, as in such a case execution might be taken out against Showier alone. On the other hand, if Showier obtained a verdict, execution would go against her husband alone ; if, therefore, she gave evidence to acquit Showier alto- gether, she would give evidence against her husband. Upon a prosecution agaidst several persons for a conspiracy. Lord Ellen- borough, C. J., refused to admit the wife of one of the defendants to be a witnets for the others; a joint offence being charged, and an acquittal of all the other defendants being a ground of discharge for the husband.(l) On the trial of an indictment against two prisoners for burglary, in which each of them set up the defence of a distinct alihi, it was proposed, on the part of one of the prisoners, in proof of his aliM, to call the wife of the other prisoner; but her evidence was rejected, on the ground that it tended to show that the witness for the prosecution was mistaken as to one of the prisoners, which would weaken the effect of that witness's testi- mony as to the other prisoner, her husband. And it was decided, by a majority of the judges, that the witness had been properly rejected.(2) Where, however, of two or more parties indicted, one of them is not upon his trial at the time when the others are being tried, the wife of the party not upon his trial is admissible as a witness. Thus, in the case of the King agt. Williams,(8) where another person, although a defendant oh the record, (i) h£id been tried and c6nvicted at the previous assizes, and consequently the only issue which the jury were bound to decide by their verdict was whether "Williams was or was not guilty,(4) the wife of the other person was admitted to give evidence : as neither the wife nor the also continues to apply after a dissolution of tlie marriage contract, as regards transactions -which took place previous to such dissolution. * The only safe and correct practice is, to adhere to the rule, that whatever passes hetween hushand and wife in confidence shall forever remain sacred." In this case, the wife, who had heen divorced, u. vinculo, for the adultery of her hushand, had been examined as a witness against the husband as to transactions which occurred during the marriage, and her testiinony was suppressed. * * (Lucas v. State, 23 Conn. 18 ; Smith v. Potter, 1 Wms. Vt. 304.) (1) R. V. Locker and others, 6 Esp. lOt ; R. v. Frederick and another, 2 Str. 1094, S. P. (2) R. V. Smith and another, Moo. 0. 0. 289. (3) 8 0. & P. 284, cit. by Alderson B., 12 M. & W. 49. (4) From the report of the case, it does not appear that the husband was jointly indicted with the defendant, Williams ; mdeed the contrary would rather appear ; but see by Alderson, B., u2 supra. SEC. rv.] Incompetency of Husband or Wife, &c. 91 husband was interested ; lie bad already been found guilty, and was to suffer tbe same judgment wbether tbe otber defendant upon the record was found guilty or not. So, in tbe case of tbe King agt. .Thurtell, tvbere Probert was admitted a witness for tbe crown, tbe wife of Probert ■was also allowed to be a witness, because her husband could ndt be at all affected by her evidence. In the same manner, if Probert had not been apprehended, and Thurtell only had been on trial at the time, it seenis that the wife would have been capable of being examined, as the ques- tion would have been, whether Thurtell was guilty, and not whether Thurtell and Probert were guilty.(l) In the case of the Queen agt. Sill and others,(2) however, tried before Tindal, C. J., where A. and B. were indicted for burglary and stealing, and evidence was given to show that a part of the stolen property was found in the house of each of the prisoners, it was proposed to 6all the wife of A. as a witness for B., to prove that she brought to B.'s house that part of the stolen property that was found there ; and his Lordship said, he thought she was a competent witness for that purpose. It may be questioned whether this point was sufficiently considered. If the witness was competent at all, she might have sworn that she als'o took to her husband's house the stolen property that was found there, having received it from a third party. It may be doubted, also, whether the very fact which she was called to prove, might not inferentially be evidence against her husband. It seems indeed to be a hardship upon the prisoner B., if the fact was in truth as suggested, that by a technical rule he should be debarred from calling the only witness who could estab- lish his innocence ; but the hardship would havfe been the same supposilCig A. himself had taken the goods to B.'s house. Perhaps the difficulty might have been got over by taking a separate verdict against A., sup- posing the evidence would have warranted such a course. In a late case before the master of the rolls, (3) it was held that a hus- band could not be examined as a witness against his wife in a suit affect- ing her separate estate, although there were other defendants in respect of whom he would be competent. It has been seen that, in general, letters written by the husband to the wife are not evidence for the husband, though letters written by the hus- band to the wife may be evidence against him.(4:) Action for qrim. eon. In an action for criminal conversation with the plalintiff's wife, the wife's letters to the defendant are not evidence for the defendant against (1) By Alderson, B., vi supra. (2) 1 C. & Kir. 494. (3) Langley v. Fisher, 5 Beav. 443. (4) Supra, p. 81. 92 Letters, Admissiorm, dec, of Wife of Party. [C5, IV. the husband, nor is her confession evidence for the husband against the 1 defendant ; but conversations between her and the defendant are evidence against him.(l) Evidence of the manner in which the husband and wife used to live together, before her connection with the defendant, is clearly admissible for the purpose either of increasing or diminishing, the dam- ages ; and upon this principle it has been determined, that where the hus- band and wife have lived apart from each other, the letters of the wife to her husband, written before any suspicion of criminal intercourse, are admissible in evidence, as showing their demeanor and conduct to each other, and whether they were living on terms of mutual affection ; but, on account of the obvious danger of collusion, it ought to be strictly proved, that the letters, which are offered in evidence, were written at a time when. the wife was notsuspected of misconduct.(2) Admissions of wife acting as agent for husband. The rule in question has no application to cases where the wife has acted for the husband in his business, and by his authority and consent ; he thereby adopts her acts, and will be bound by any admission or acknowledgment made by her respecting that business ; the wife in such cases being considered his agent. Thus, where the wife has made a con- tract for her husbapd, which has been adopted by him, her acknowledg- ment as to the amount of the money due will be evidence against him.(3) In an action by a servant for wages,(4) the plaintiff was allowed to give in evidence a deed executed by the wife of the defendant at the time of the hiring, which, though void as a deed, was admitted in order to show the terms of the contract. And in an action for goods sold and delivered at the defendant's shop,(5) an offer by the wife to settle the demand was (1) B. N. P. 28 ; Winsmore v. Greenbank, Willes, 571. (2) Edwards v. Crock, 4 Esp. 39; Trelawney v. Coleman, 1 B. & A. 90 ; S. C, 2 Stark. R. 191. (3) Emerson v. Blonden, 1 Esp. ,142 ; 1 Str. 521 ; B. N. P. 28J ; Anderson v. Saunderson, Holt N. P. C. 591. (4) White V. Ouyler, 6 T. R. IIG. (6) CUfford V. Burton, 1 Bing. 199. Where the wife acts as agent for her husband, her acts, declarations and admissions are evi- dence against her husband, like those of any other agent. Fennef v. Lewis, 10 John. R. 38; Riley v. Suydam, 4 Barb. 222 ; Williamson v. Morton, 2 Md. Ch. Deois. 94. Note 46. — The declarations of the wife, who managed her husband's business as tavern keeper, he being incapable of managing his affairs through insanity, were received in an action on a bill for boarding the defendant's intestate, to show payment; on the authority of Str. 521. Hughes' Adm'rs v. Stokes' Adm'rs, 1 Hayw. 312. So it would be of her admissions in her course of agency , in any particular transaction. Curtis v. Ingham, 2 Verm. Rep. 289. In an action of debt, the question was put to the jury on contradictory testimony of agency in the plaintiff's wife, whether a considerable payment to her should be credited to the defendant • and the court remarked to the jury that " There are many occasions on which a wife, as agent for the husband, appears as the principal. The cares of matrimony, the duties of management are divided ; the husband assumes some parts, and submits other parts to the care of the wife. Where he either acts or submits, he is bound. A husband is often from home. Nothing is more common than to pay the wife, in his absence, a debt due to the husband. That is for the oon- SEC. IV.] Admissions of Wife as Agent. 93 admitted in evidence, as she used to serve in the shop, and was in the habit of transacting the business in his absence. Upon the same princi- ple, the wife's acknowledgment, as to a debt being due for goods fur- nished with her husband's consent for her accommodation, or for goods purchased by her for the husband and used by him, has been held suffi- cient to take the case out of the Statute of Limitations.(l) In an action against a police officer,(2) to recover money which he had taken from the plaintiff's wife on suspicion of her having got it unlawfully, Lord Ellen- borough, C. J., admitted the account given by her respecting the money on her examination before a magistrate, to be given in evidence on behalf of the defendant : " The money," said Lord EUenborough, " appears never to have been in the husband's possession, and, as the wife had the exclusive custody and management of it, he must be bound by what she said concerning it." Such statements and admissions are receivable in the same manner as declarations or admissions made by any other agent with reference to a tronsaction which is within the scope of his authority. (3) There is, how- ever, this difference, that in the latter case, where the agent is living he may be called as a witness, although it is not necessary that he should be so called ; whereas we have seen, the wife can in no such case be called. In O'Connor v. Majoribanks,(4) the widow was not admissible to prove the fact of her agency ; but if that fact had been shown aliunde, any admissions made by her in that character would have been receivable in evidence. The agency of the wife, as that of any other agent, may be inferred from circumstances. Some facts must be shown, however, from which the wife's agency may be inferred with reference to the particular transac- tion to which the admission relates. Thus, where it was proved, upon the trial of an action of replevin, (5) that the house in respect wl^ereof rent was claimed by the defendant was occupied by the plaintiff's wife, who carried on a trade therein, and it was admitted that, the husband being generally absent, she carried on the business by his authority, and attended to all the receipts and payments relating thereto, it was held that a state- ment made by her to the landlord, that she would pay the rent of the shop, admitting its amount, on a future day, was not evidence against the venience of both parties, and seems to be considered an implied agency. If the defendant made this payment in the usual way, it seems proper to consider it as a payment to the husband on a presumed agency, with which, in their common concerns, eyery wife is presumed vested. Spen- cer V. Tisuo, Addis. Rep. 316, 319. See the text and notes, post, on the admissions of an agent generally. (1) Gregory V. Parker, 1 Campb. 394; Palethorp v. Furnish, 2 Esp. 511, n. ; Anderson v. Saunderson, Holt N. P. C. 591 ; S. C, 2 Stark. R. 204. And see 15 Ves. 159. (2) Carey v. Adkins, 4 Campb. 94. (3) See post (4) 4 M. & G. 435 ; Ante, p. IS, 19. (5) Meredith v. Footmer, 11 M. & W. 202. 94 Exceptions to the General Bute, [CH. IV. husband of the terms of the tenancy, the wife not being shown to be the agent of her husband with respect to the payment of rent. In an action for goods sold,(l) in order to show that the defendant was not liable, a witness cannot be asked whether the plaintiff's wile had said anything to him as to the person whom her husband had trusted foi; the goods, and to whom he looked for payment. There are also several exceptions to the general rule upon this subject, where, from the nature of the inquiry, the information to be expected is pecuharly within the knowledge of the husband or wife, and where to exclude such evidence would occasion insecurity to that relation of society, which it is the object of the rule to protect. Iq oases of personal injuries. In all cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness against the other.(2) The evidence is admissible in such cases upon the principle of necessity ; not a general necessity, as where no other witness could be had, but a particular necessity, as where, for instance, the injured party might be otherwise exposed without remedy to personal injury.(3) Thus a wife may be a witness on the prosecution of her husband for aiding in a rape committed on her person by another man ;(4) or upon a charge against her husband for committing an unnatural offence upon her.(5) And on a prosecution against a man for beating his wife, she is allowed to give evidence.(6) On the trial of an indictment against a man for shooting at his wife,(7) the evidence of the wife was ruled by Garrow, B., after consulting with Holroyd, J., to be admissible against the husband; but Holroyd, J. thought that the wife could only be permitted to prove such facts as could not be proved by any other witness. ■ Although the wife is admissible in all such cases, she is not an indis- pensable witness. (8) A wife is permitted to exhibit articles of the peace against her hus- band :(9) and the court will not receive affidavits on the part of the defend- ant, to contradict the truth of the articles exhibited against him, and pre- (1) Duckworth v. Johnson, 1 0. & Kir. 584. See further as to cases where the declarations of the wife are admissible on hehalf of the husband as being part of the res gesUs, post. (2) E. V. Jagger, 1 Bast P. C. 466, by BuUer, J. See also by HuUock, B., in 'Wakefield's Case, Murray, 257. (3) By Lord Mansfield, C. J., in Beutley v. Cooke, 3 Doug. 424. (4) Lord Audley's Case, 3 How. St. Tr. 413. See also Hutton, 116 ; 1 Hale P. C. 301 ; Eep. temp. Hardw. 83 ; B. N. P. 28'7. (5) B. V. Jellyman, 8 C. & P. 604. (6) B. V. Azire, 1 Sfr. 633 ; B. K P. 28T ; E. v.TTagger, 1 East P. C. 454. (•7) Whitehouse's Case, 2 Buss. C. & M. 984, (3d ed.) See also E. v. Jagger, vt wpra. (8) E. V. Pearce, 9 0. & P. 667. (9) B. N. P. 287. SEC. rv.J ^5 to the Husband or Wife of a Party. 95 vent his giving STirety.(l) So an afiBidavit of a married woman has been admitted to be read, on an application to the Court of King's Bench for an information against her husband, for an attempt to take her away by force after articles of separation :(2) and it would be strange, said Buller, J., to permit her to be a witness to ground a prosecution, and not afterwards to be a witness at the trial.(3) On the trial of a man for the murder of his wife, her dying declarations are evidence against him.(4) By the Bankrupt Act, (5) commissioners in bankruptcy are empowered to examine the wife of the bankrupt for the discovery of his estate. A similar power had been given by the 21 Jac. I, c. 19. Before that statute, the commissioners could not examine the bankrupt's wife.(6) Upon an appeal against an order of bastardy, (7) in the case of a married woman. Lord Hardwicke and the other judges held that she was a com- petent witness to prove her criminal connection with the appellant, though her husband was interested both in the question and in the event of the appeal ; because such a fact, so secret in its nature, can scarce ever be proved by other evidence. And by a parity of reason. Lord Ellenborough, G. J., said,(8) if she be admitted, as a witness of necessity, to speak to the fact of the adulterous intercourse, it might also perhaps be competent for her to prove that the adulterer alone had that sort of intercourse with her (1) Lord Vane's Case, 2 Str. 1202, more fully stated from Ford's MS. in 13 East, 111, n. a ; S.. P., B. V. Doherty, lb. (2) Lady Lawley.'s Case, B. N. P. 286; Mary Mead's Case, 1 Burr. 543. (3) B. N. R 281. (4) "Woodcock's Case, 1 Leach Cr. C. 500 ; John's Case, 1 East P. 0. 35'7. (5) 6 Geo. IV., 0. 16, § 37. See also 8 & 9 Vict. e. 48, § 1. (6) Anon., 1 Brownl. 47. (7) E. V. Reading, Rep. temp. Hardw, 82 ; R. v. Bedell, Audr. 8 ; Gilb. Ev. 139 ; Cope v. Cope, 1 Mo. & Rob. 273, n. (81 In R. T. Luffe, 8 East, 203. Note 47. — On similar principles, upon the trial of an indictment for fornication and bastardy with a married woman, she was held competent to prove the criminal.oonnection. Common- wealth V. "Wentz, 1 Ashm. Rep. 269, and the cases cited infra from Browne and Binney. But not to prove the non-access of her husband. Commonwealth v. Miller, cited 1 Browne, App. lii; Commonwealth v. Strieker, 1 Browne, App. xlvii; Commonwealth v. Connelly, 1 Browne, 284; Commonwealth v. Shepherd, 6 Bin. 283 ; The King v. M'Lean, cited 6 Bin. 290. But if the court permit her to be asked a question, from the answer, to which non-access may be iufeired, aa " how long it was since she last saw her husband," and afterwards direct the jury that they are not to consider anything which fell from her as evidence of non-access, and there is. strong evidence of non-access from other witnesses, the verdict will not be disturbed. Commonwealth V. Shepherd, 6 Bin. 283. (The mother, in such oases, carmot testify to the absence, non-access of the husband, nor to any other fact capable of proof by other evidence. The People v. Ontario, 15 Barb. 286 ; Parker v. Way, 15 N. Hamp. 45. There is, as we have seen, a presumption in favor of a child born during lawful wedlock, that it is legitimate. Wright v. Hjcks, 12 Geo. 155. See also Chapel v; White, 3 Gush. 537 j and Moody v. Goode, 10 Ired. 49 ; and The State V. Wilson, Id. 131, 350.) 96 Mcceptions to the General Rule, &c. [CH. iv. by whicli a cliild might be produced within the limits of time which nature allows for parturition. On an appeal against the removal of a woman, as the widow of A. B.i deceased, prima facie evidence of the marriage having been produced on the part of the respondents, the Court of King's Bench determined, that the woman was a competent witness, on the part of the appellants, to dis- prove the niarriage.(l) It may be remarked here, that in proceedings before justices under the Vagrant Aot,(2) against a husband for neglecting to support, or deserting his wife and family, it is believed to be the universal practice, as also at sessions in the case of an appeal, to admit the wife as a witness. This practice is presumed to have arisen from the necessity of the case, for although instances frequently may and must arise where all the facts neces- sary to insure a conviction might be proved by other witnesses, yet it must often happen that some of the circumstances, such as the husband's ability to support his family, or the act of desertion, could be proved only by the wife. On an indictment for a second marriage during the continuance of a former marriage, though the woman first married by him cannot be a wit- ness,(3) yet, after proof of the first marriage, the second woman he married may be a witness,(4) not being legally the wife of the prisoner. After such proof, she would be competent to give evidence for as well as against the prisoner.(5) Upon tjie same principle, on a prosecution for forcible abduction and marriage of a woman, she is a competent witness against(6) or for the prisoner ;(7) as she is not legally his wife.(6) And the better opinion seems to be, that the rule is the same, though the woman afterwards volun- tarily cohabits with the prisoner.(8) The exception as to the admissibility of the wife is confined to cases of (1) R. V. Bramley, 6 T. E. 330 ; S. P., R. v. St. Peter's, Burr. Sett. Cas. 25. (2) 5 Geo. IV., c. 83. See sect. 3 and 4. (3) Mary Grigg's Case, Sir T. Raym. 1 ; Hawk. b. 2, o. 46, § U. (4) 1 Hale P. C. 393 ; B. N. P. 281 ; 1 East P. 0. 469. (5) See 1 Ry. & Mo. 354. In proseoutions for bigamy, the marriage must be alleged and proved distinctly (The State V. Bray, 13 Ired. 298 ; The People v. Humphrey, 1 John. R. 314) ; and it is necessary to allege directly the time and place of the first marriage. The State v. La Bore, 26 Vt. (3 Deane), 165. The confessions of the defendant and proof of cohabitation and reputation are not enough to establish the fact of marriage on an indictment for bigamy. Gahagan v. The People, 1 Parker C. R. 318. Where one of the parties are under the age of consent at the time of the marriage, and the marriage is not confirmed by cohabitation after coming to full age, neitlier of them is liable in Ohio to prosecution for bigamy. Shafher v. The State, 20 Ohio 1. (6) Gilb. Ev. 120; 1 Hale P. C. 301; 2 Hawk. P. C. c. 46, § 78; B. N. P. 286. (1) R. V. Perry, cited by Abbott, C. J., in R. v. Serjeant, Ry. & Mo. 364. (8) By HuUock, B., in Wakefield's Case, Murray, 25'7 ; S. C, 2 Lewin, V 219. See also 4 Bl. Com. 209 ; 1 East P. 0. c. 11, § 5 ; Hawk. P. C. o. 41, § 13 ; Swinden's Case, 4 How. St. Tr. 515. Confjra, 1 Hale P. 0. 302 ; Respublioa v. Hevlce, 2 Teates, 114. CH. v.] Of the Time of Objecting to Oompeten&y. 97 personal injuries effected by violence or coercion. Therefore, upon an in- dictment for a conspiracy in procuring a young female who was a ward in chancery, to marry, she is not admissible either for or against the husband.(l) The restrictions upon the admissibility of the evidence of parties to the suit and of their wives, which it has been seen are relaxed in the case of defendants in equity, have been entirely removed by the recent statute establishing the courts for the recovery of small debts,(2) with regard to all actions brought in those courts ; the 83d section of that statute enact- ing, that " on the hearing or trial of any action, or on any other proceed- ing under this act, the parties thereto, their wives and all other persons, may be examined either on behalf of the plaintiff or defendant."(3) CHAPTEE V. OF THE TIME OF OBJECTING TO THE ADMISSIBILITY OF A WITNESS. It remains now to consider what is the regular time for making an ob- jection to the admissibility of a witness ; for though the grounds of incom- petency have been very much reduced in number by the operation of Lord Denman's Act, still the mode of making the objection in cases which may occur, remains the same. Before proceeding to the cases on this subject, it may be convenient first to notice one in which the objection to the admissibility of a witness is of a merely technical nature. An objection to a witness, on the ground of his misdescription in the list of witnesses, which is required previously to a trial for high treason, must be taken in the first instance ; and it is too late to take such objection after the witness has been examined in chief (4) This is an objection merely formal and technical, and should be taken, if at all, at the strictly regular time. Witness to be examined on voir dire before he is sworn. The strict and regular method of raising an objection to the competency of a witness, is by examining him on the voir dire;{5) that is, he should be sworn to answer all such questions as the court shall demand of him, (6) the inquiry as to the competency of a witness being conducted, as has (1) R. V. Locker, 5 Esp. 107 ; R. v. Serjeant, Ry. & Mo. 354. (2) 9 & 10 Tiot. c. 95. (3) See also 11 & 12 Vict. c. 43, § 15, sii^a, as to the admissibility of complainants before justices. See also, introductory chapter. (4) R. V. Watson, 2 Stark. R. 158 ; S. 0., 32 How. St. Tr. See R. T. Frost, 9 0. & P. 165, 183. (5) Verilaiem dicere : Vrai dire. (6) See by Rolfe, B., 11 M. & W. 689. Vol. I. 7 98 Of ike Time of Objecting to Competency. [CH. v. already been shown,(l) by the judge, and what the witness states on such examination not being evidence in the cause to be laid before the jury. And in strictness, also, this examination, being of a preliminary nature, ought to be taken before the witness is examined, or even sworn in chief. And this was the rule formerly. (2) (1) Svjpra, p. 3. 12) See 1 T. E. 117. See also Dewdney v. Palmer, 4 M. & "W. 664. The party intending to object to the oompeteney of a witness may either introduce proof showing that he is incompetent, or have him sworn upon the voir dire, and take his evidence in relation to the question of competency. And it rests upon the party objecting to prove the incompetency of the witness (The State v. Holloway, 8 Blaelsf 45) ; and he must point out to the court the ground of his incompetency. "White "Water Talley Canal Co. v. Dow, 1 Smith, 62 ; Leach v. Eelsey, T Barb. 466. If the party objecting to the competency of a vritness chooses to have him sworn on the voir dire, and examines him, he cannot afterwards introduce other evidence to establish his incompe- tency ; so held where the witness was objected to on the ground of interest. Le Barron v. Red- man, 30 Maine (11 Shep.), 536 ; Stewart v. Lake, 33 Maine R. 87 ; Gordori v. Bowen, 16 Penn. State R. 226. Knowing that the witness is incompetent, the party entitled to object must do so promptly. Bangher v. Duphern, 9 Gill, 314. If it appear that the party entitled to make the objection knew or ought to have known that the witness was incompetent, and he cross-examines the witness before raising the objection, this will be deemed a waiver of the incompetency. Listen v. Hardy, 7 Sng. Law & Eq. B. 204. But when he does not know, and has no means of knowing or supposing the witness to be incompetent, he may take the objection and have the testimony stricken out, if it appear at any time during the examination of the witness that he is incompetent. Jacobs v. Layborn, 11 Mees. & Welsh. 685. Having reason to believe the witness incompetent, the regular course is to take the objection at he earUest opportunity ; and though the objection may in other cases be made at any time, as soon as the incompetency appears on the examination, the party against whom the witness is called has the right to require him to be sworn on his voir dire, preliminary to the general oath. Seeley v. BngeU, 3 Kernan R. 542. And notwithstanding the objection to the competency of the witness is made and overruled before he is sworn in chief, his testimony will be excluded or stricken from the case, if it appear on his cross-examination that he is incompetent. Lester v- McDowell, 18 Penn. State R. 91. Contra, Dewdney v. Palmer, 4 M. & "W". 664, since overruled. And it appears to be now held in England that the incompetency may be shown by examina- tion of the witness in the first instance, or by other and independent evidence, or in both of these ways. 11 M. & "W. 692. There are many cases of incompetency under the common-law rules of evidence in which the witness may be rendered competent ; as where his incompetency arises out of his interest in the event of the suit, which may be released. In these cases, if the objection be not made in time, it is deemed to have been waived. Combs v. Bateman, 10 Barb. 573. "When one party attempts to prove the execution of a contract, without calling the attesting witness, the opposite party must object to the competency of the proof at the first opportunity. If the contract be proved on a commission, no objection being made, it is too late to make the objection at the trial. Ward v. Whitney, 3 Sand. R. 403. If the testimony of a co-defendant is offered on behalf of the other defendant, he should be sworn; because the relevancy or compe- tency of the evidence proposed to be given by him must be determined when it is oflfered. So held under the Code of 1851, in Bno v. Del Veoehio and Snyder, 4 Duer R. 63. Each defendant is a competent witness for his co-defendant, in an action of tort, under section 397, as amended in that year. Beal v. Knoh, 1 Kernan E. 128. And under the Code of New York aa amended in 1857, the parties to the action are competent witnesses. Where a release is handed to the witness, and he is permitted to testify without objection to its sufficiency, the opposite party is presumed to have waived any objection founded on the insufficiency of the release. BuUen v. Arnold, 31 Maine R. 583. If interested in the event of CH. V.J Of the. Time of Objecting to Competency. 99 But tkis strict and ancient practice lias been much modified ; as appears by authorities which can be traced back in our Law Eeports beyond the last century. There is no doubt but that so far back as that period our ablest judges have allowed such objections to be freely taken after the witness has been sworn, and after his examination in chief, in cases where the adverse party was not previously aware of the incompetency of the witness. And in such cases, if this course were not permitted, it is obvi- ous that the rules as to the incompetency of witnesses might be entirely evaded ; as it might turn out upon the cross-examination of a witness, that he was in truth the party to the cause, or, in the words of Lord Denman's Act, the person in whose immediate and individual behalf the action was brought or defended. The practice, therefore, may now be considered as fully established (not- withstanding what has been said by a high authority as to its irregu- larity),(l) that the objection to the competency of a witness may be raised after the witness has been examined in chief -,(2) and this appears always to have been the rule in equity, (3) where there is no examination upon the voir dire.(4) Formal examination on voir dire not necessary. And although the examination of the witness in the cause maybe stopped at any time, in order that he may be sworn upon the voir dire and exam- ined by the judge as to his competency ;(5) yet this formal proceeding is not necessary, and if it should appear, while the witness is still under exam- ination, that he is incompetent, the objection may be taken, and the judge wiU strike out his evidence from his notes.(6) tlie suit, lie is incompetent to testify even in respect to a fact wMch does not affect his interest Gerrish t. Cummings, 4 Gush. 391. (1) See by Parke, B., 10 M. & W. 145. (2) Needham v. Smith, A. D. 1704; by Lord Keeper King, assisted by Holt, C. J., and Powell, J. ; Lord Lovat's Case, 18 How. St. Tr. 696 ; Jacobs v. Laybom, 11 M. & W. 685. (3) Needham v. Smitli, vi supra; Vaughan v. 'Worrall, 2 Madd. 322 ; Selway v. Chappell, 12 Sim. 113. (4) By Lord Abinger, C. B., 11 M. & W. 691. (5) By Rolfe, B., 11 M. & V?". 688. (6) Turner v. Pearte, 1 T. R.'I20; Stone v. Blackbume, 1 Bsp. 37 ; Howell v. Lock, 2 Campb. 14. And see by Lord Abinger, C. B., 11 M. & W. 690. Note 48. (The decisions in respect to the mode of preying the incompetency of the witness, on the ground of interest, remain valuable illustrations of the doctrine stated in the text.) Fisher v. Willard, 13 Mass. Eep. 379, 381 ; Bank of North America v. "Wiokoff, 2 Teates, 39 ; Evans v. Eaton, 1 Pet. C. 0. Eep. 322. Objections to the competency of a witness, whose depo- sition is taken under the 30th section of the United States Judiciary Act, should be made at the time of taking the deposition, if the party attend and cross-examine, and the facts constituting the incompetency be known to him at the time of the examination, in order that the objections may be removed by release or otherwise ; and if not then made, the party will be presumed to have intended to waive them. But if the facts were then unknown to him, the objection may be made at the time of reading the deposition. United States v. One case of hair pencils, 1 Paine's Rep. 400. But in Massacliusetts the objection need not be taken till the trial in any 100 Of the Time of Objecting to Competency. [CH. V. t case. Talbot v. Clark, 8 Pick. 51. Ordinarily, at whateTer stage of the cause the witness is discovered to be interested, in law or equity, his testimony must be rejected (Swift v. Dean 6 John. Rep. 523 ; Pisher v. WiEard, 13 Mass. Rep. 379) ; and the admissibility of evidence, if not objected to, at the trial, cannot be questioned on a motion for a new trial. Jackson ex dem. Dox V. Jackson, 5 Cowen's Rep. 173. Otherwise, if the incompetency of the witness was not known at the trial. Niles v. Brackett, 15 Mass. Rep. 378. It is a good test of competency, where the witness is examined as to interest, in any stage of the cause, to suppose him examined on his voir dire, and see how the matter would then stand. This examination on the voir dire is a mode often omitted, yet well to adhere to. Thus, in trover against a servant, the defence was, that he got the article of the plaintiff for his master, to be returned if not approved, or otherwise, purchased and paid for. On the master being introduced for the defence, to prove the authority, and that he had kept it, the objection was made by the plaintiff, that he was interested, as the verdict might subject him to claim over by his servant. He was admitted, and proved the authority, and keeping of the article by himself, though it was never purchased. Parke, J., suggessts that the whole was to be taken as if the witness had deposed on his voir dire ; in which view his interest would appear to be balanced, i. e., if the servant was subjected, he might be liable over on the ground of a supposed fraud in the message, or if the defence succeeded, then he would be liable to the plaintiff. GryUs v. Davies, 2 Bamw. &Adolph. 129. The objection on account of interest in chancery, should be made as soon as the interest is discovered. If known while before the examiner, it should be made there ; if not appearing there by pleadings, testimony, or otherwise, it may be made whenever it shall appear, or be first known. Rogers v. Dibble, 3 Paige, 238. If not made the first opportunity, it is waived; for the party should have a chance to release or otherwise avoid the objection. Id. Tlie objection may be made at the commencement of the examination, and afterwards established by other evidence. Id. A cross-examination does not waive the objection, where it is made as soon as the interest is discovered, though such cross-examination be had after the examiner overrules the objection, or reserves the question, or the party caUing the witness insists on proceeding against the decision of the examiner. Id. A motion may stiU be made to suppress the deposi- tion, or the testimony may be objected to at the hearing. Id. And see Harrison v. Courtauld Euss. & Mylne, 428 ; and Swift v. Dean, cited supra. Where the interest of the witness is releaseable, and the party knowing of his interest, raises no objection till the proofs are closed, it is then too late to object. Town v. Needham, 3 Paige, 552. In Vermont, it was held that an objection before auditors against the bail being a witness, which was a fact appearing upon the record of the court, though it was not verified any way to the auditors, was well made; and on the coming in of the report, this should have been rejected by the court for that reason. The witness on his voir dire had forgotten it. M'Connell v. Pike, 3 Verm. Rep. 505. A witness is said to be examined on a voir dire when he is sworn and examined whether he be not a party interested in the cause, as well as the person for whom he is a witness. Termes do la ley, 581. Smallwood v. Mitchell, 2 Hayw. 145 ; Davis v. "Whiteside's Adm'r, 4 J. J. Marsh. 116, 117 ■ Cotchet V. Dixon, 4 M'Cord, 311; Stebbins v. Sackett, 5 Conn. Rep. 258; Rogers v. Dibble 3 Paige, 238 ; Chance v. Hine, 6 Conn. Rep. 231 ; Jones v. Tevis, 4 Litt. 25, 28. It may be proper to observe here, that what a witness who is called shall have been heard to say, shall not be received to show his interest ; for it is mere hearsay. Commonwealth v. "Waite 5 Mass. Rep. 261 ; Pierce v. Chase, 8 Mass. Rep. 487 ; Vining's Lessee v. Wooten, 1 Cooke 127 • Jones V. Tevis, 4 Litt. 25, 28 ; Pollock's Lessee v. GUlespie, 2 Teates, 129 ; Coto'het v. Dixon, 4 M'Cord, 311 ; Stimmel v. Underwood, 3 Gill & John. 282 ; Freeman v. Luokett, 2 J. J. Marah. 390 ; Davis v. Whiteside's Adm'r, 4 J. J. Marsh. 116. Gonira, Dennis v. Jones, 1 Coxe's Rep! 46. And see Patten v. Ilalsted, Id. 277. But what Iho party who offers the witness said, may be received. Pierce v. Chase, 8 Mass. Rep. 487. And see 5 Id. 261. But where the defendant, having objected to the competency of the plaintiff's attorney called as a witness, in order to show his interest, offered to prove by a person that he called on the plaintiff and told him that he was authorized by the defendant to ascertain on what terms he, the plamtiff, would settle the suit; OH. V.J Of the Time of Objecting to Competency, and that the plaintiff referred him to the attorney, saying that he owneq against the defendant, which -was a promissory note ; held, that this st^ being made during a negotiation for a settlement, was not admissible in ev^ence the interest of the witness. "Williams v. Thorp, 8 Cowen's Rep. 201. Qu^^:^ confessions made during a negotiation to compromise. Most of the American eases have strictly followed the old English rule laid down in the text, (former edition), that where you resort to the voir dire you are concluded ; and if you fail to show incompetency in this mood, you cannot do it by other evidence of any kind in the course of the same trial. Mifflin v. Bingham, 1 Dall. 272, 215, per M'Kean, C. J. ; Welden v. Buck, Anth. N. P. Rep. 9, 10 ; Stebbins v. Sackett, £ Conn. Rep. 258, 261, per Hosmer, 0. J. ; Butler v. Butler, 3 Day, 214, 218 ; Chamce v. Hine, 6 Conn. Rep. 231, 232, perLanman, J.. So if you inquire of the witness as to his interest, on his general oath, this is equivalent to an inquiry upon the voir dire, and equally prevents a resort to any other mode. Butler v. Butler, 3 Day, 214, 218. But this was denied in Mifflin v. Bingham (supra), where it is said, though you cross-examine the witness thus to show his interest, and fail, you may yet show it otherwise. And it was said in Stebbifls v. Sackett (supra), that if you inquire on the voir dire of one set of facts, and fail on these to estab- lish incompetency, you may still go to other evidence in order to show incompetency from another state of facts. See this case infra, stated more at large. The cases are still more strongly and directly to the point, that after you have attempted to show incompetency by evidence derived from any other source than the witness, you shall not afterwards put him on his voir dire. Bridge v. 'Wellington, 1 Mass. Rep. 219, 221, 222 ; Mifflin V. Bingham, 1 DalL 212, 275, per M'Kean, 0. J.; Stebbins v. Sackett, 5 Conn. Rep. 258, 261. Nor can you cross-examine him to the point of interest when he comes to be sworn in chief, in consequence of your failure in your iirst attempt to prove him incompetent by testimony other than his own. Chance v. Hine, 6^ Conn. Rep. 231. And it was held he could not be cross-ex- amined under such circumstances, even to impeach his credibility. Id. But where you have failed in your attempt by other testimony to show one set of facts upon which you rely for incompetency, you may stiU show his interest on another set of facts, even on hia voir dire. Thus, where it appeared by the plaintiffs' general evidence that the witness was interested to testify in favor of the plaintiffs, the witness having indorsed the note in question after the defendant, the plaintiffs released the witness. The defendant tl^n insisted, that the witness was interested, as having made a general assignment of the note in question to the plain- tiffs, with all his other property, to pay his creditors, so that this note, if recovered, would go to increase the fund for payment ; and if the suit should fail, the fund would be diminished — an interest not touched by the release. And to prove the assignment, the defendant offered to have the witness sworn on hia voir dire. Held admissible. Stebbins v. Sackett, 5 Conn. Rep. 258, 261. It was held in Bridge v. Wellington (1 Mass. Rep. 219, 222), that where a party offers a wit- ness against you, and you object upon the party's own evidence that the mtness is interested, and your objection is overruled, this is not such an attempt to prove the interest by evidence aliunde as comes within the rule precluding a resort to the voir dire. The defendant objected to the competency of a witness offered by the plaintiff, on the ground that it appeared from the testimony already given in the case, that the witness was interested. The judge permitted the witness to be sworn, reserving the question of his competency. Held^ that the question should have been decided when the objection was made ; but having reserved the question, the judge could not, in deciding afterwards on the competency of the witness, take into consideration his testimony, given while the question remained undetermined ; but that the decision must be made on the other facts of the case, without regarding such testimony. Mott v. Hicks, 1 Cowen's Rep. 513. Evans v. Eaton, 1 Peters' C. C. Rep. 322. A question arose in this cause whether, when a, witness is sworn on his voir dire, any other evidence could be given to prove his interest, except such as might arise from his own testimony. The court decided it could not ; but said, if it should appear in any subsequent stage of the examination, by other evidence, that he was not a competent witness, the court would set him aside. A witness on her voir dire, states that she was the wife of the party ; serrible, she may restore her competency by stating that she had been divorced a vinculo, though it was objected that the record should have been produced. WeUs 102 Of the Time of Objecting to Competency. [CH. v. If, however, tlie objection has not been raised before the witness has left the box, he cannot be recalled for the purpose of examining him as to his competency.(l) The result appears to be, that in ordinary cases, that is, where the incom- petency of a witness is unknown to the adverse party, the objection need not be raised by an examination on the voir dire, either preliminarily to his examination in chief, or after such examination has commenced or con- cluded ; but it will be sufBcient to raise the objection as soon as the party becomes aware of it, provided it be done before the witness leaves the box. But after he has left the box, he cannot be recalled for the purpose of starting the objection. It has been thought, however, that where, from the commencement of an examination in chief, the opposing counsel knows of a witness's incom- petency, he ought not to be allowed to lie by and take the chance of the evidence being in his favor, and when he finds it to be unfavorable to him, then to take the objection.(2) Lord Abinger, C. B., referring to this opin- ion, thought differently, observing, that a counsel who knows of an objec- tion to the competency may very fairly say, " I Avill lie by, and see whether he will speak the truth; if he does not, I will exclude his evi- dence." But this reasoning seems not quite satisfactory : and, on further consideration, it may perhaps be thought, that with a view to fair practice, and for the ends of justice, the safest and least inconvenient course would T. Pletcher, 5 Carr. & Payne, 12. Though the witness on his voir dire, being offered for the defendant, answered"that he was not liable to pay the costs of defence, the plaintiff's counsel was allowed to show him a letter of his own, to the defendant's wife, and then repeat the question. Homan v. Thompson, 6 Carr. & Payne, 614. The court said, that after an examination on the voir dire, other evidence to show interest could not be produced. But yet, if it come out in the course of the witness's examination in chief, that he is interested, he may be rejected. Davis v. Barr, 9 Serg. & Eawle, 138. Said, you may offer direct proof of interest after failing to show it by the voir dire. Hamblett v. Hamblett, 6 ST. Hamp. Rep. 351. In an action by the indorsee against the indorser of a note, the maker, on his voir dire, expressed his doubts whether he was interested, stating, his interest to depend on the question whether a demand he had against the defendant, was barred by the Statute of Limitations, in case he should be sued by the defendanti on a recovery against him, in the pending cause. Held a competent witness for the defendant, this not being either a declaration that he was interested, or that he believed himself to bo so. Bank of Columbia v. Magruder, 6 Harr. & John. 172 ; Galbraith v. Galbraith, 6 Watts, 112, 122i S. P. It was said, the judge may, in hia discretion, allow a resort to the voir dire, after other modes of impeaching the witness have failed of effect, though it is doubtful whether he is bound to allow it. Butler v. Tufts, 1 Shepl. 302. On the voir dire, a witness may be required to verify his signature to an instrument, which may then be read in proof of his interest. Hamblett v. Hamblett,' 6 N. Hamp. Rep. 333, 351. He may be examined respecting contracts, records or documents. Miller v. Mariner's Church, 7 Greenl. 51, 62 ; Hays v. Richardson, 1 Gill & John. 366. And see Seewell v. Stubbs, 1 Carr. & Payne, 73, and the note to this case. See also Herndon v. Givens, 16 Ala. R. 672. (1) Beeohing y. Gower, Holt N. P. 0. 314 ; Dewdney v. Palmer, 4 M. & W. 667. In the first- mentioned case the judge had recalled the witness, for the purpose of asking him a question con- nected with the cause ; but he would not permit him to be re-examined as to hia competency. (2) By Parke, B., in Jacobs v. Layborn, 11 M. & W. 685. See also Hartshome v. Watson, 5 N. 0. 477. CH. v.] Of the Time of Oljecting to Competency. 103 be, to require the counsel, if he knows, or has reason to suspect, the incompetency of a witness, before the examination in chief commences, to make inquiry on that point in the first instance. If the proposed witness should be the party substantially interested in tbe suit, or, in the words of Lord Denman's Act, the party in whose imme- diate and individual behalf the actioa is brought or defended, and the adverse patty should know that such a person (who is in reality his adver- sary in the suit) is about to be called as a witness against him, he may, if he thinks fit, openly waive the objection and allow the examination to proceed. But if he allow him to be sworn and give evidence without raising the objection, it seems reasonable that he should be deemed equally to have waived his power of objecting. The objection to a witness's competency may be supported either by the examination of the witness, or by independent evidence. It was at one time thought that a party could not resort to both these methods ;(1) but there appears to be no good reason for this restriction, and the rule is now otherwise.(2) Where the incompetency of the witness would appear from some writ- ten instrument which is not produced, he may be examined as to the con- tents of it. The general rule, which requires the production of the instru- ment itself, or that a notice to produce it should be given before a witness can be examined as to its contents,(3) does not apply to such a case ; for the objecting party may be ignorant of its existence before the examina- tion of the witness, and he cannot be supposed to know that this particu- lar witness would be called on the other side. If, however, the witness himself produces the instrument, it ought, of course, to be read as the best proof of the witness's situation.(4) And if the instrument is in court, the opposite counsel is entitled to have it produced, and to m.ake any objection that may exist as to its admissibility for want of suf&cient stamp.(5) When the objection arises from a witness's examination or from inde- pendent evidence, it may be removed by a further examination of the wit- ness.(6) Thus, in an action brought by a chartered company,(7) where a witness for the plaintiff admitted, on the voir dire, that he had been a free- man of the company, but added that he was ^hen disfranchised. Lord (1) See 10 Mod. 151 ; Ambl. 593 ; Ca. temp. Hardw. 358. (2) See the opinion of Lord Abinger, C. B., 11 M. & W. 692, and Lord Hardwioke's in Lord Lovat's Case, supra, p. 99. (3) Post, Chap. On the Exclusion of Secondary Emdence. (4) Butler v. Carver, 2 Stark. R. 434 See also Godmanchester (Bailiffs, &c.) v. Phillips, 4 A, & B. 550 ; Lucas v. Eades, 1 Dowl. (K S.) 424. (5) Quarterman v. Cox, 8 C. & P. %1. (6) See Brookbank t. Anderson, 7 M. & G, 295, 313. (7) Butchers' Company v. Jones, 1 Esp. 162. See also Botham v. Swingler, Peake K, P. C. 214 ; S. C, 1 Esp. 164. Another example may be seen in R. v. Gisburn, 15 East, 51. 104 Of Hie Time of Objecting to Competency. [CH. v. Kenyon ruled, that it was not necessary to proye tlie disfrancliisement by the regular entry in the company's books, and that the witness was com- petent. So, in an action by an administrator,(l) where a witness called for the plaintiff admitted that he was next of kin, and was objected to on this ground, but answered, on re-examination, that he had released all his interest, this was held by Lord Ellenborough to remove the objection. . Where a party calling a witness, who has been objected to, attempts to remove the objection, not by a further examination of the witness, but by other independent proof, he will be subject to all the ordinary rules of evidence, and the best proof will be required according to the nature of the case.(2) (1) Ingram v. Dade, Lond. Sitt. after Mich. T. ISlt ; S. C, 1 C. & P. 235, n. See also "Wand- lees V. Cawthorne, Mo. & Ma. 321, n. ; Carlisle v. Eady, 1 C. & P. 234 ; and Lunnis v. Rose, 10 A. &E. 606. (2) Corking v. Jarrard, 1 Campb. 37. (In Pennsylvania, a witness is not allowed to remove an appearance of interest, shown by- other evidence, by his own testimony. Anderson v. Young, 21 Penn. 443 ; Banks v. Clegg, 14 Penn. State E. 390. And if it appear from his testimony on the voir dire that he is incompetent, and he be allowed to testify notwithstanding, his examination in chief cannot be looked into to cm:e the error. Lay v. Lawson, 23 Ala. 371. The incompetency of a witness on the ground of interest may be waived ; and where a witness incompetent on the ground of interest, is sworn in chief, and examined in relation to the interest of another witness merely, the opposite party has a right to examine the witness so sworn on the merits of the case : the party calling him thereby waives the objection grounded on his interest. Linsley v. Lovely, 26 Tt. 123 ; KeUy v. Brooks, 25 Ala. 523. And such a waiver cannot be recalled. Chateau v. Thompson, 3 Ohio, (N. S.) 424. If the witness answers on his voir dire that he is interested in the event of the suit, this is IffF-ima facie sufficient to exclude him ; but the party calling him may follow up the examination aijid show by him that he is not in fact interested. Blaokstook v. Leidy, 19 Penn. (7 Harris) 335 ; Tarleton v. Johnson, 25 Ala. 300.) Note 49. — In an action by the assignees, the bankrupt was called for them, and stated that he had obtained his certificate. But did not produce it. His release was in court. Held, that both must be produced, or then absence accounted for ; that it was not like the case of an objection, raised by secondary evidence on the, jjoir dire, which may be removed by it. Goodhay v. Henry, 1 Mood, k Malk. 319, 320; Waudless v. Cawthorne, Id. '321, note, S. P.; Anonymous, Id. S. P. • and see Jackson ex dem. Montressor v. Rice, 3 "Wend. 180. And so in all cases where the incompetency, of the witness appears not on the voir dire, but aliunde, as if it be shown from the face of a paper produced in the cause, the witness cannot himself be examined to remove it. Evans v. Gray, 1 Mart. Lou. Rep. (N. S.) 709; Mott v. Hicks, 1 Cow. Rep. 513. But a witness , examined in chief, stating facts which create an interest, and following this with facts which do it away, is competent. McMioken v. Pair, 6 Mart. Lou. Rep. (N. S.) 515. "We stated ante, some cases as to the manner, other than by the voir dire, of proving the dis- charge of a witness's interest when it appears that he is incompetent. The amount of those cases seems to be, that if his interest appear otherwise than by his own examination, he him.self is incompetent to testify to the facts by which it was removed. And so is the case of Fay v. Green, 1 Aik. "Verm. R. 71. Otherwise, if the objection arise out of liis own examination, though in phief. In Bean's Ex'r v. Jenkins' Bx'r (1 Harr. & John. (Maryland,) 135), both the declarations of the party offering the witness, and the out-door declarations of the witness himself, were received to prove his incompetency. That the former were correctly, and the latter improperly received, by many books, and even on the lajier Maryland eases, see per Skinner, Cliangellor, in Nichols v. Holgate, 2 Aik. 138, 140 ; Doe ex dem, Ingram v. "W^tkins, 1 Dev. & Batt. 442, 445. Two per- CH. Vl.] Of the Compelmcy of Accomplices. 105 CHAPTER VI. OF THE COMPETENCY OF ACCOMPLICES, INFORMERS AND SELF-DISCREDITING WITNESSES. In connection witli tlie question of incapacity of persons to give evi- dence, may be considered another class of persons, whose testimony, although by law admissible, is still regarded with some suspicion, and generally requires more or less confirmation. SECTION I. Of the Competency of Accomplices. Before the passing of Lord Denman's Act, a person who had been con- victed of any infamous crime could not be received as a witness : but even then a witness was not incompetent from infamy of character, unless a conviction and judgment were proved against him;(l) not even though he might admit himself to have been convicted.(2) And it was also a settled rule of evidence, that a witness in a criminal prosecution was not incom- petent on the ground that he had been an accomplice with the prisoner at the bar in the particular crime which was the subject of the indictment. With respect to any objection that might be made against the reception of the evidence of accomplices, on the ground of the admitted infamy of their character, there appears to be no distinction between an accomplice, who acknowledges that he has participated in the commission of the crime with which the prisoner at the bar stands charged, and any other witness, v?ho admits, that he has been guilty of a similar crime on a different occa- sion. But the testimony of an accomplice is usually given under an sons being offered as witnesses for the plaintiff were objected to, and a witness, for the defend- ant stated he heard the plaintiff say he was not to pay the costs of this suit if he lost it, as he had somebody between him and danger, which the witness vnderstood to mean the two witnesses offered. This was held insufSoient to establish their incompetency by reason of liability for costs. High V. Stainback, 1 Stew. Rep. 24. Semb. Though the judge should receive the deokrations of the witness as to interest in pres- ence of the jury, it would not be cause for a new trial, if he receive the witness as competent, and submit his credit to the jury. Ackley v. Kellogg, 8 Cowen, 223. (1) R. V. Castle Careinion, 8 East, 78. (2) lb. ; R. V. Teal, 11 East, 309 ; Rands v. Thomas, 5 M. & S. 244. The English statute declares that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest. 6 & 7 Viet. i;. 85. Our statute, on the other hand declares that no person offered as a witness shall be excluded by reason of his interest in the event of the suit (Code of N. T., § 398), thus leaving the question of inoompetency, arising from the oonvictign of infamous crime, as it stood before, the Code. 106 Of the Competency of Accomplices. [CH. vi. express or implied promise of pardon ; sometimes, in the expectation of receiving a reward on the prisoner's conviction ; and this peculiarity in the situation of an accomplice appears to furnish a much stronger ground of suspicion against his evidence, than exists with regard to witnesses whose conduct has been equally guilty, but who do not give their evidence from!- the same interested motives. It had been, however, long settled, that an unconvicted accomplice was not an incompetent witness, although he might have had a promise of pardon or reward, on condition of giving evidence against the prisoner.(l) The evidence of accomplices has been at all times admitted, and its admission has been supported on the ground of public policy and necessity, from its being scarcely possible to detect conspiracies, and many of the worst crimes, without their information. In Charnock's Case,(2') Lord Holt, in his address to the jury, said: " Conspiracies are deeds of darkness (1) Tongue's Case, Kel. IT ; S. C, 1 Hale P. C. 303 ; Layer's Case, 19 How. St. Tr. 313 ; S. C, Hawk. P. C. b. 2, o. 46, § 135 ; WUles, 423, 425 ; 4 East, 180 ; Say. 289 ; R. v. Rookwood, 4 St. Tr. 681. (2) 12 How. St. Tr. 1454, referred to by Lord EUenborough in Despard's Case, 28 How. St. Tr. 488. Note 50. — The doctrine of the text in regard to the adniissibility of accomplices, has been re- cognized in several, and, it is presumed, in most of the United States, in its fullest extent. The People V. Whipple, 9 Cowen's Rep. 101 ; Byrd v. The Commonwealth, 2 Tir. Cas. 490 ; Bean v. Bean, 12 Mass. Eep. 20; Churchill v. Suter, 4 Mass. Rep. 156; M'Niff's Case, 1 C. H. Eec. 8; The State v. Wier, 1 Dev. 363 ; United States v. Henry, 4 Wash. C. C. Eep. 428. The evidence of accomplices has been at all times admitted, although from a principle of public policy, or from judicial necessity, or from both. They are no doubt requisite as witnesses in particular cases, but it has been well observed, that in a regular system of administrative justice, they are liable to great objections. " The law,'' says one of the most useful modern writers on criminal juris- prudence, " confesses its weakness, by calling in the aid of those by whom it has been broken. It offers a premium to treachery, and destroys the last virtue which clings to the degraded trans- gressor. On the other hand, it tends to prevent any extensive agreement among atrocious criminals, makes them perpetually suspicious of each other, and prevents the hopelessness of mercy from rendering them desperate." People v. Whipple, 9 Cowen's Eep. 101. As in a criminal case, a pariictps criminis is admitted as a witness, so in a civil case, a particeps fraudis may be, either to prove or disprove the fraud. Churchill v. Suter, 4 Mass. Rep. 156 ; Bean v. Bean, 12 Id. 20 ; Major v. Deer, 4 J. J. Marsh. 586, 587 ; Glenn v. Kapff, 2 Gill & John. 132. But it has been held in Vermont, that on the trial of an indictment for adultery, a particeps criminis is not a competent witness, on the ground that no person shall be allowed to testify hia own guilt or turpitude, to convict another. State v. Annice, N. Chip. Rep. 9. Offenders against the act to prevent duelling are competent (in New York) to testify against any other person offending in the same transaction ; indeed, are compellable to testify the same as any other wit- nesses. 2 E. S. 686, § 3. The thief is competent to prove an indictment for buying stolen goods of him. M'Niff's Case, 1 0. H. Reo. 8 ; Hill's Case, Id. 57, 59. In the latter case, it is asserted that conviction may follow, though the testimony of the accomplice stand uncorroborated. Per Eadcliff, Mayor, in his charge. Id. 50. Quere. An accomplice, separately indicted, is com- petent as a witness for or against another indicted for the same offence. To constitute an accom- plice, the person charged as such must have an intention of committing the crime. Mere appa- rent concurrence is not enough. United States v. Henry, 4 Wash, C. C. Rep. 428. (An accomplice is only admitted from the necessity of the case, and where there is no other person by whom the crime or offence can be proved. Ray v. State, 1 Iowa (Greene), 316.) SEC. I.] Of the CompeteTicy of Accomplices. 107 as well as of wickedness, tlie discovery whereof can properly come only from the conspirators themselves ; and the evidence of accomplices has been allowed good proof in all ages ; and they are the most proper wit- nesses; for otherwise, it is hardly possible, if not altogether impossible, to have full proof of such secret contrivances." In answer to an objection of the prisoner, that " although an accomplice was a legal witness, he was not a good one," Lord Holt added, " the credit of what he says, as in all other cases, must be left to the jury, who are judges of the matter of fact, and of the credibility of witnesses." Object of admitting accomplices. The object of admitting the evidence of accomplices is, in order to effect the discovery and punishment of crimes, which cannot be proved against the offenders without the aid of an accomplice's testimony. In order to prevent this entire failure of justice, recourse is had to the evidence of accomplices, and they are admitted to give evidence for the crown, either under an express promise of pardon, offered upon certain con- ditions by special proclamation, in the Gazette, or otherwise; or, more commonly, under an implied promise of pardon, on condition of their making a full and fair confession of the whole truth.(l) In the former case, accomplices who comply with the proposed conditions are en- titled to pardon as a matter of right : in the latter case, they have an equitable title to be recommended to mercy, on a strict and ample per- formance of the condition on which they are admitted as witnesses, to the satisfaction of the presiding judge. This equitable right cannot be pleaded in bar, or in any manner set up as a legal defence to an indictment charg- ing them with the same offence, 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 proper quarter.(2) With regard to other offences with which the prisoner at the bar is not charged, an accomplice can derive no advantage from such equitable claim to a pardon : the claim must be considered as limited to the particular offence for the prosecution of which his testimony is admitted.(3) (1) See Rudd's Case, Cowp. 339. (2) See Rudd's Case, Cowp. 339. Note 51. — Accomplices are admitted to give evidence under an implied promise of pardon, on condition of their making a full and fair confession of the whole truth ; that is, of all the offences about which they might be questioned, and of all their associates in guilt. This implied promise arises from the consideration, that the witness, who is not bound to criminate himself, does so to discover greater offenders ; and upon performance of the condition to the satisfaction of the court, he acquires an equitable title to a pardon. People v. Whipple, 9 Oowen's Rep. 107. (If he acts in good faith, and is admitted by the court as a witness, the government is honorably bound to discharge him. United States v. Lee, 4 McLean, 103.) (3) Lee's Case, Russ. & Ry. C. C. 361 ; Brunton's Case, Id. 454. It is entirely in the discre- tion of the judge in these oases, whether he will recommend the accomplice to mercy. As the 108 Ofihe Competency of Accomplices. [CH. VI. Application to court to admit aooompliees. It is not a matter of course to admit a person, charged witli the commis- sion of a crime, as a witness against his associates, not even after he has been allowed to give evidence before the committing magistrate : but if Ms evidence is deemed to be absolutely necessary in support of the prose- cution, the proper course is to apply to the court for permission to send him as a witness before the grand jury; and it is in the discretion of the judge, under all circumstances of the case, whether he will grant or refuse an order. Where it is intended to make this application, the accomplice ought not to be included in the indictment; but where he has been included with his confederates in a joint indictment, he may still be used as a wit- ness in some cases with the consent of the court. Thus, in a prosecution for a conspiracy, a verdict of acquittal may be taken against some of the defendants before the opening of the case : and the defendants so acquitted may be called as witnesses for the prosecution. (1) And the same course may be adopted, with the permission of the court, in cases of felony. (2) In such case, however, the witness stands wholly absolved from the charge) and can no longer be considered in the light of an accomplice. If an accomplice, after having confessed the crime, and after having been received as a witness against his associates, breaks the condition on which he has been admitted, by refusing to give full and fair information, the court may direct a bill to be presented forthwith to the grand jury against him, or, if they are discharged, may commit him to prison, and he may be tried and convicted on his own confession. (3) accomplice is eiititled to no protection in respect to other oflfences, he is not bound to answer questions relative to such offences on his cross-examination. "West's Case, 0. B, Sessions, 1821. See posi, Examination of Witnesses. It is not usual to admit accomplices who are charged with other felonies. Note 52. — An accomplice admitted to testify of one crime, may, though he behave weU, be prosecuted for another crime, the imphed promise of pardon not extending to that ; and if it ap- pear that ho is charged with any other felony than that in relation to which the prosecutor moves for his admission as a witness, this fact, of itself, will be sufficient ground for rejecting hitn. People V. Whipple, 9 Cowen's Eep. 721, note a, also resolved in several oases, 2 Carr. & Payne, 411 ; Maudslay v. Le Blanc, 12 Eng. Com. Law Rep. 643. (1) R. V. Rowland, Ry. & Mo. N. P. C. 401. See R. v. Fletcher, 1 Stra, 633. (2) R. V. Owen, 9 C. & P. 83. Note 53. — For several cases sanctioning this practice, see 2 Carr. &, P. 411, and the note there. A motion should be made to the court for the admission of an accomplice to testify, by the public prosecutor, and the court, under the circumstances of the case, will admit, or disallow the evidence, as may most effectually answer the purposes of justice. Thus, where one against ■whom a verdict had been given for murder, was offered as >■■ witness against an accessory before the fact, but appeared to have been the leader in perpetrating the crime, he was rejected. Peo- ple V. Whipple, 9 Cowen's Rep. 101. (On the motion to admit the accomplice as a witness, it should be shown that his testimony ia absolutely essential to prove the commission of the crime by the party indicted or on trial, and that the person proposed to be admitted is not more guilty than the other. Ray v. State, 1 Iowa R> 316.) (3) See Moore's Case, 2 Lew. 31 ; R. v. Smith; R. v. Stokes; E. v. Holtham, oit. 2 Rusa. Cr. & M., by Greaves, 958, n. d. SEC. I.] Of the Competency of Accomplices. 109 On tHe trial of a person for a misdemeanor in receiving stolen goods (under the repealed statute 22 Geo. Ill, c. 58), wtiicli authorized proceed- ings against the accessory, notwithstandiog the principal felon might not have been convicted or might not be amenable to justice, the party who had committed the theft, but had not been convicted, was held to be a competent witness for the prosecution, (1) and the same doctrine would be applicable to the case of a receiver, prosecuted for a substantive lelony under the provisions of the statute now in force on this subject.(2) As an accomplice is not an incompetent witness for the prosecution, it follows that he will be also a competent witness on behalf of the prisoner, notwithstanding he may be himself charged on a separate indictment.(3) And upon a joint indictment against several prisoners, where there is either no evidence whatever, or very slight evidence against one of them, the court, in the exercise of its discretion, sometimes will direct a verdict to be given for him, and upon his acquittal admit him as a witness for the other prisoners.(4:) Note 54. — It seems, that what an accomplice states under oath against his associate, would not be admissible evidence against himself, on account of the implied promise of the court to re- commend him to mercy. See the remarks of Duer, Circuit Judge, in the People t. Whipple, 9 Cowen's Rep. 116. But where an accomplice received a promise from the attorney-general that he should not be prosecuted if he would become state's evidence and malre a full disclosure, and upon such promise he made a confession, but afterwards refused to testify, he was put upon his trial, and this same confession was held admissible in evidence against him. The Commonwealth v. Knapp, 10 Pick. 4'?'?, 489 to 495. (1) Haslam's Case, 1 Leach C. C. 467 ; Price's Case, Id. 468, n. 1 ; Patram's Case, 2 East P. 0. 182. See also Wild's Case, 2 East P. C. '782 ; and 1 & 8 Geo. IT, u. 29, § 58. (2) 7 & 8 Geo. IV, c. 29, § 54. Note 55. — The statute of New York provides that an accessory may be indicted, tried, con- victed and punished, notwithstanding the principal felon may have been pardoned, or otherwise discharged, after his conviction. 1 R. L. 496 ; 2 R. S. 727, § 49. Under this statute, it is held that the accessory may be proceeded against, if the principal has been convicted, although he have not been sentenced, and that, in such case, the principal felon is a competent witness against the accessory. People v. Whipple, 9 Cowen's Rep. 707, 709, 710. (A confession, made by a principal, cannot be given in evidence against an accessory. State V. Newport, 4 Harring. 567. Where the statute makes the aiding and abetting the commission of a crime a distinct and substantive offence, it is not essential that the principal should be first tried and convicted. Noland v. The State, 19 Ohio R. 131. But in general, the acquittal of the principal discharges the accessories. United States v. Crane, 4 McLean, 317.) (3) 2 Hale P. C. 280 ; 2 Roll. Abr. 685 ; Eorteso. 246. (4) 2 Hawk. P. C. o. 46, § 98 ; R. v. Bedder, 1 Sid. 237. See supra, p. 64. Note 5G. — Where several persons are jointly indicted, one is not a competent witness for an- other, without being first acquitted, or convicted ; and it makes no difference whether the defend- ants plead jointly or separately. The People v. BUI, 10 John. Rep. 95 ; Campbell v. The Commonwealth, 2 Virg. Cas. 314. Et vide The State v. Alexander, 2 Rep. Const. Ct. So. Ca. 171. Thus, where two being jointly indicted for an assault and battery, pleaded, and were tried separately ; and after the testimony for the people agamst one had closed, he offered to prove his defence by the other, it was held, that the witness offered was incompetent before trial and acquittal, or conviction. People v. Bill, 10 John. Rep. 95. So where two were jointly indicted for larceny, and being separately arraigned, pleaded and were tried separately, it was held that a party in the same indictment cannot be a witness for his co-defendant, until he has been first 110 Of the Confirmation of Accomplices. [CH. VI. SECTION II. Of the Confirmation of Accomplices. Since accomplices are competent witnesses, it appears to follow, as a necessary consequence, tliat if their testimony is believed by the jury, a prisoner may be legally convicted upon it, though it be unconfirmed by any other evidence. It is the peculiar province of the jury to deter- mine upon the degree of credit to be attached to any competent evi- dence submitted to their consideration ; and it has accordingly been laid down in many cases as a settled rule, that a conviction obtained upon the unsupported testimony of an accomplice is strictly legal. (1) axjquitted, or, in some eases, convicted, whether the defendants be jointly or separately tried. Campbell v. The Commonwealtb, 2 Virg. Cas. 314. If any evidence is given against one of two jointly tried, the court will not strike his name out of the indictment for the purpose of making him a witness for the other ; and where there is no evidence against one of several defendants, it seems that the motion to strike out his name can only be legally granted by consent of the attorney for the state, and by considering it equivalent to a motion on his part for leave to enter a nolle prosequi as to such defendant. State v. Alex- ander, 2 Rep. Const. Ct. So. Ca. 111. Accordingly, on trial of an indictment for larceny, the attorney-general not consenting, though no evidence appeared against one of the prisoners, the court refused to swear him as a witness for the others. State v. Carr, 1 Coxe, 1. But of this, quere; for the attorney-general may thus wrongfully withhold evidence from the defendants ; and in another case, persona joined in a complaint, against whom there was no evidence, were, on motion in behalf of the other defendants, admitted for them. State v. Shaw, 1 Root, 134. But if circumstances are proved from which it is possible for the jury to presume guilt, a co-defend- ant in an indictment cannot be a witness for the defence. Pennsylvania v. Leach, Addis. 352. For the general doctrine, see also Rex v. Long, 6 Carr. & Payne, 179. "Where one is indicted jointly with his accomplices, it is in the discretion of the state's attor- ney to try the prisoners separately, and use the accomplice or not, on trial, as a witness ; but the prisoners have no such right of election for such a purpose, because the accomphce jointly indicted is not competent for them though they sever. State v. Calvin, R. M. Charl. 151, 169. And it was said generally, that the state may use the accomplice as a witness, but the prisoners not. Id. 169. Qttere of this, independent of their being joined as parties ? He is competent for either party, if not indicted. And guere, whether the accomplice, so long as he remains on the record as a joint indictee, can be received as a witness for either party, though his associates be tried separately 7 Rex v. Rowland, Ry. & Mood. N. P. Rep. 401, and note. (Where the statute makes the aiding and abetting in the commission of a crime a distinct offence, and one is indicted for the crime, and another for aiding in its commission, the former is a competent witness on the trial of the latter. Noland v. The State, 19 Ohio 131. And it Is held in Virginia that where the indictment is joint, and the prisoners are tried separately, one of them may be a witness for the other. Lozier v. The Commonwealth, 10 Graft. 108. And though tried together, if there be but little evidence against one of them, the court will submit his case first to the jury, so that if he is found not guilty, he may be sworn as a witness for the other. Fitzgerald v. Tlie State, 14 Mis. 413.) (1) R. v. Atwood, Leach C. C. 521 ; R. v. Durliam, Id. 538 ; 1 Hals P. 0. 303 ; R. v. Dawber, 3 Stark. R. 34; R. v. Jarvis, 2 M. & Rob. 40. See also by Lord Ellenborough, C. J., in R. v. Jones, 2 Campb. 132 ; 31 How. St. Tr. 325 ; 7 T. R. 609, S. P. ; by Lord Denman, C. J.' in R v. Hastings, 7 C. & P. 152, and by Alderson, B., t C. & P. 273. On tlie general subject, as to the evidence of accomplices, with reference to tlie point of confirmation, see Sir T. ^Vitherington's argument, 5 How. St. Tr. 116; Diaouasionin Sayer's Case, 16 How. St. Tr. 168; Sir R. Atkyn's SEC. II.] OfiTxe Confirmation of Accomplices. Ill But great injustice would result, if it were the practice of juries to con- vict upon the unsupported evidence of accomplices, whose testimony, though admitted from necessity, ought always to be received with great jealousy and caution. For upon their own confession they stand contami- nated with guilt ; they admit a participation in the very crime which they endeavor, by their evidence, to fix upon the prisoner ; they are sometimes entitled to a reward upon obtaining a conviction, and always expect to earn a pardon. Accomplices are therefore of tainted character, giving their testimony under the strongest motives to deceive ; and a jury would not, in general, be j ustified in giving to such witnesses credit for a conscientious regard to the obligation of an oath. Sometimes they may be tempted to accuse a party who is wholly innocent, in order to screen themselves or a guilty associate ; and if the prisoner has been their participator in crime, they may be disposed to color and exaggerate their statement against him, with a view to hide their own infamy, or, by obtaining his conviction, to protect themselves from his vengeance, and secure the expected benefit.(l) The doctrine, therefore, of a conviction being legal upon the unsupported evidence of an accomplice has been greatly modified in practice ; and it has long been considered, as a general rule of practice, that the testimony of an accomplice ought to receive confirmation ; and that, unless it be cor- roborated in some material part by unimpeachable evidence, the presiding judge ought to advise the jury to acquit the prisoner.(2) remarks, 9 How. St. Tr. 121, as to the evidence of aa indicted accomplice; Murphy's Case, 19 How. St. Tr. 102; Sir J. Copley's remarks in "Watson's Case, 32 How. St. Tr. 513; Lord EUen- borough's charge in Watson's Case, 32 How. St. Tr. 583 ; Lord Tenterden's charge in the cases of the Cato street Conspiracy, 33 How. St. Tr. 689. (The former note, embracing an extract from Amos & PhiUipps, editors of the eighth edition of this work, has been embodied in the text. See Note 25, Part I, Cowen & Hill's Notes, 3d edit ; the latter part of the note follows on a subsequent page. It is certainly the province of the jury to determine the weight and credibility of the evidence submitted to them (State v. Brown, 3 Strobh. 508) ; and it is as clearly the duty of the court to instruct them that the testimony of an accomplice reqmres confirmation. Ray v. State, 1 Iowa, 316.) (1) See Lord Hale's remarks on Tongue's Case, 1 Hale P. C. 304. In the earlier state trials the protection and countenance aEForded by the judges to accomplices, spies and informers was carried to a shameful length. The language of Lord Holt, as reported in the trials for the Assas- sination Plot, may probably be tliought, at the present day, too favorable to accomplices. See particularly Chamock's Case, 12 How. St. Tr. 1454. (2) See the cases collected and stated in the text, infra. On the subject of the Evidence of Accomplices, see a tract written by an eminent Irish judge, and published in 1836, which con- tains an elaborate examination into the origin and history of tliis practice. According to the view of this learned writer, the practice of requiring confirmation cannot be traced back more than half a century. And he observes, that in the earlier cases which have been referred to as authorities for the practice, nothing can be found which leads to the inference of any general regulation on the subject, and that the credibility of an accomplice, whether confirmed or uncon- firmed, appears to have been treated aa a question for the jury. See Tongue's Case, 6 How. St. Tr. 226 ; by Sir 0. Bridgman, 1 Hale P. 0. 334. See also E. v. Charnock, 12 How. St. Tr. 1454. In this case, almost the only material witnesses were accomplices. The observations of Lord 112 Of the Confirlnation of Accomplices. [OH. vi. The practice of requiring confirmation has been stated not to extend to cases of misdemeanors ;(1) but such distinction, for which there appears to be no sound reason, if it ever prevailed, no longer exists.(2) Holt, as to their competency have been cited in the text, ante, p. 90 ; they were said by Lord BUenborough, C. J., in. E. v. Despard, 28 How. St. Tr. 488, to comprise in a few words the good sense and sound law on the subject. In B. v. Eudd (Cowp. 339j, Lord Mansfield, C. J., said " the single testimony of an accomplice is seldom of sufficient weight with the jury to convict the offender." Note 5t. — (If the court refuse to instruct the jury that the unsupported testimony of an accom- plice is not sufficient to justify a conviction, or if the jury find the prisoner guilty upon such tes- timony, this is a suflBcient ground -for a new trial. Eay v. State, supra.) In HUl's Case (1 0. H. Eeo. 5T, 59), it is said a conviction may follow, though the testimony of the accomplice stand uncorroborated. Quere. And see United States v. Tom Jones, 2 "Wheel. Cr. Cas. 451 to 461. A case of piracy before Thompson, J. (1) By Gibbs, A. G., in E. v. Jones, 31 How. St. Tr. 315. (2) See E. V. Farler, 8 0. & P. 106. The testimony of an accomplice requires confirmation, because he glands before the court a discredited witness ; but there is an evident distinction between a witness who is self-discredited as guilty of an infamous crime, and one who is only guilty of a misdemeanor that subjects him to a moderate fine. The State v. Quarles, 8 Eng. (13 Ark.) 307. A man may be convicted of petit larceny, and still remain a, competent witness. 5 Hill, 260. And a conviction tor that offence in another state, will not render the convict incompetent. Uhl v. The Commonwealth, 6 Gratt. 106. And where two persons are indicted and tried separately for a misdemeanor, there does not seem to be any reason for excluding them as witnesses on the trial of each other. Note 56. — When parties jointly indicted may he witnesses, for or against each other. — It seems to have been assumed, in one case, that though an accomplice and his associates be jointly indicted, yet, if the latter be separately tried, the accomplice may be a witness for the state, though not for the prisoners ; and it was held, that the state's attorney, but not the prisoners, may elect to try separately with a view to use the accomplice as a witness. State v. Calvin, E. M. Charlt. 151. But before the state's attorney can in such case use the accomplice as a witness, ought not the attorney to move, and have him acquitted, or at least enter a nolle prosequi against him? See Eex v. Eowland, Ey. & Mood. N. P. Eep. 401, and the note. Does not the case come within the general rule, that so long as the witness's name stand on the record, he being thus designated as a joint party and subject to be tried as such, he is incompetent ? In respect to the prisoner's right to have one jointly indicted with him sworn as a witness in his behalf, he must in all cases, whether he be tried jointly with, or separately from, the witness, who has not even been arraigned, wait for a conviction or acquittal of the witness. The People v. "Williams, 19 Wend. 3V'7; State v. Blcnnerhassett, "WaUcer's Eep. 7, 16, 17. If there be no evidence against him, the court may direct an acquittal, or order the defendant to be discharged. 2 E. S., 616, § 19 (2ded.); State v. Blennerhassett, "Walker's Eep. 7, 16, 17. But, until tha.t be so, the rule of exclusion applies, even where the trials are ordered for different counties. Slate v. Mills, 2 Dev. 420 ; Carter's Case, cited Id. 422. And it makes no difference that the defendants have pleaded separately. State v. Mooney, 1 Yerg. 431. It is put in the text that, unless acquitted, he should not only be convicted, buj: fined, before he is competent. The American cases usually put the case of a conviction merely as I'estoring competency, without its being fol- lowed by the sentence of the court. But Euffin, J., in State v. Mills (2 Dev. 422), says the prac- tice in North Carolina has accorded with the English strictness. In Amos and Phillipps' ed. of Phil. Ev., p. 70, note 3, the case of Eex v. Lafone (5 Esp. 160), is examined, and several arguments urged in favor of receiving one joint indictee as a witness for another, after he has suffered judgment by default. The learned editors urge, what it seems difficult to deny or explain away, that there exists no objection beyond what goes to his credit, any more than in the case of an accomplice. The same reasoning would seem to apply where the witness pleads guilty, especially in aU those courts which do not exclude witnesses solely on the ground of their being parties. SEC. II.] Of the Cortfirmation of Accomplices. 113 It has been laid down, that this practice of requiring some confirmation of an accomplice's evidence, must be considered in strictness as resting only upon the discretion of th.e presiding judge.(l) And this, indeed, appears to be the only mode in \yhich it can be made reconcilable with the doctrine already stated, that a legal conviction may take place upon the unsupported evidence of an accomplice. But it may be observed, the practice has obtained so much sanction from legal authority, that a devia- tion from it in any particular case would be justly considered as of ques- tionable propriety. Although the judge does not in express language declare, that a case depending on the unconfirmed evidence of an accom- plice is insufficient in law to warrant a conviction, but merely advises the jury not to place credit on the evidence; yet, as it is not likely an instance should arise in which the jury would disregard the advice so given, and convict the prisoner, the substantial result appears to be nearly the same as if the practice had depended upon a rule of law, instead of being only the exercise of the discretion of the presiding judge. The only distinc- tion appears to be, that if the judge were to submit a case of this nature to the jury without any such recommendation, and a conviction ensued — or if a jury were to convict in opposition to the recommendation of the judge — it could not properly be said in either case, consistently with the authorities on the subject, that the conviction would be illegal. The necessity for confirmation will depend in some 'measure upon the nature and circumstances of the crime.(2) Upon an indictment against a man for committing an unnatural offence with his own wife, if it appears that she consented to the act, she becomes an accomplice, and her evidence will require confirmation. (3) In a case where the prisoner was indicted for manslaughter at a fight, it was objected, that all persons who had been present, were principals in the second degree, and that their evidence ought to receive confirmation, as in the case of accomplices, but the judge was clearly of opinion they were not such accomplices as would require any further evidence to confirm them.(4) Such persons are manifestly not in the situation of accomplices. The practice of requiring confirmation, when the case for the prosecu- tion is supported by an accomplice, applies equally when two or more accomplices are brought forward against a prisoner. In a case in which (1) By Lord BUenborough, C. J., in R. v. Jones, 2 Campb. 132. (2) See R. v. Jarvis, 2 Mo. & R. 40, 42. (3) R. V. Jellyman, 8 C. & P. 604. (4) R. V. Hargraves, 5 0. & P. 110, by Patteson, J. If the parties present are confederates and engaged in a common design, they are all equally guilty. Green v. State, 13 Miss. 382 ; Regina v. Greenwood, 9 Eng. Law & Eq. E. 535. If they aid and encourage the commission of the crime, they are guilty as accessorifes, though not present. Hately v. State, 15 Geo. 346 ; Brennan v. The People, 15 His. 511. Andif they come together on a common design to assist in the perpetration of the crime, they are guilty. M'Oarty y. St^e, 26 Miss. 299. YoL. I. 8 114 Of tlie Confirmation of Accomplices. [CH. VI, two accomplices spoke distinctly to tlie prisoner's guilt, the judge directed the jury, that, if their statement were the only evidence against him, he could not advise them to convict; observing, that it was not usual to con- vict on the evidence of one accomplice without confirmation, and that, in his opinion, it made no difference (with respect to the practice and the propriety of convicting), whether there were more accomplices than, one.(l) It appears to have been held, in one case, that a confirmation by the wife of an accomplice would be insuflicient : it was said, that the wife and the accomplice must be considered as one for this purpose. (2) In that case, the circumstances of the case might have been such as to warrant this decision. But it may often happen, that the evidence of the wife is so free from all suspicion, so independent of the evidence of the husband, so manifestly unconcerted and uncontrived, and so undesignedly corrobo- rative of his evidence, that, it might be proper not to consider the accom- plice and his wife as one, but to act upon her evidence as sufficient con- firmation. Extent of confirmation. From the anomalous nature of the rule of practice which requires con- firmation, more especiallj' from the circumstance that the rule is considered as resting upon the discretion of the presiding judge, and that jt appears in fact to have originated in the exercise of such discretion, it might be expected that some difiEerence of opinion would arise as to the nature and extent of the necessary confirmation. It is clearly unnecessary that the accomplice should be confirmed in every circumstance which he details in evidence ; for there would be no occasion to use him at all as a witness, if his narrative could be completely proved by other evidence free from all suspicion.(3) The rule upon the subject which has generally been laid down, is, that if the jury are satisfied that he speaks truth in some mate- rial part of his testimony, in which they see him confirmed by unimpeach- able evidence, this may be a ground for their believing that he also speaks truth in other parts, as to which there may be no confirmation.(4:) So fax all the authorities agree; the only point on which any difference of opinion has been supposed to exist, relates to the particular part or parts of the accomplice's testimony, which ought to be confirmed. In some cases it has been considered, that the confirmation ought to be such as affects the individual prisoner, and connects him immediately and directly with the crime; in other cases, this description of confirmation has (1) E. V. Noakes, 5 0. & P. 326, before Littledale, BoUand and Alderson, J's. (2) B. V. Neale, t C. & P. 168, by Park, J. (3) See report of the Trials at Tork, on Special Commission, 1813, pp. 16, 17, 50, 150, 165, 201, particularly the charges of Thompson, C. B., in R, v. Swallow, and of Le Blanc, J., inE. t. Mellor. (4) See authorities cited in the preceding note, and Despard's Case, 28 How. St. Tr. 488, and 1)7 Lord BUenborough, C. J., 31 How. St. Tr. 325 j S. v. Barnard, 1 C. & P. 88. SEC. II.] Of the Confirmation of Accomplices. 115 been considered vinnecessary, and it has been held, that confirmation of the accomplice in some parts of his testimony, which do not connect the prisoner directly with the crime, may be sufficient to entitle the accom- plice to credit, and to warrant the judge in leaving the case to the jury without a recommendation to acquit. In the first case in which this question appears to have been expressly raised, two prisoners had been convicted on the evidence of an accom- plice, who was confirmed as to the circumstances attending the offence, but not as to the identity of the prisoners, and the judges were unani- mously of opinion; that the conviction was good, upon the general ground already mentioned; namely, that a prisoner may legally be convicted upon the unconfirmed evidence of an accomplice.(l) In a case occurring shortly afterwards, a similar decision took place, and, as it appears, on the same ground. At the trial, the court observed, that the practice of reject- ing an unsupported accomplice was rather a matter of discretion with the- judge than a rule of law, and the case having been left to the jury, and the prisoner convicted, the judges afterwards held the conviction good,(2) It was, however, said in this case that the witness (a receiver) was rather an accessory after the fact than an accomplice in the fact. The same general doctrine was laid down in the case of the King agt. Jones,(3) by Lord Ellenborough, C. J., who there referred to a case in which the judges were of opinion, that four prisoners had been properly convicted upon the testimony of an accomplice, whose .evidence had been confirmed as to three of the prisoners, but not as to the fourth. And in the report of the York trials under a special commission, it is laid down by Thompson, 0. B., that confirmation need not be of circumstances which go to prove, that the accomplice speaks truth with respect to all tJie prison- ers (when several are tried), and with respect to the share they have each taken in the transaction ; for if the jury are satisfied that he speaks truth in those parts in which they see unimpeachable evidence brought to con- firm him, that is a ground for them to believe that he speaks also truly with regard to the other prisoners, as to whom there may be no confirma- tion.(4:) Again; in the later case of The King agt. Dawbar,(5) where an accom- plice was confirmed as to one of several prisoners jointly indicted, but not as to the others, Bayley, J., told the jury that if they were satisfied, from the confirmation, that the accomplice was a credible witness, they might act on his testimony with respect to the prisoners as to whom he had not (1) R. V. Atwood, Leach 0. C. 521, cit. 1 T. R. 609. (2) R. V. Durham, Leach C. C. 638. See, Iso, E. t. Smith, reported in a note to the last case. (3) 2 Campb. 132 ; 31 How. St. Tr. 325. (4) R. V. Swallow, see ante, p. 114. (5) 3 Stark. R. 34. And see R. v. Barnard, 1 C. & P. 88, by Hullock, B. 116 Of the Confirmation of Accomplices. [OH vi. been confirmed, and they were convicted. In Birkett's Case,(l) the judges ■were of opinion that an accomplice did not require confirmation as to the person charged by him, if he were confirmed in the other particulars of his statement. And in the case of The King agt. HastiDgs,(2) at the Old Bailey, before Lord Denman, C. J., Park, J., and Alderson, B., when the counsel for the prosecution stated that he should not be able to confirm an accom- plice, who was to be called as a witness, with regard to the persons of the prisoners, but only as to the general circumstances of the case, Lord Den- n>an said he considered, and he believed his learned brothers concurred with him, that it was altogether for the jury, who might, if they pleased, act on the evidence of the accomplice without confirmation ; but observed, that a person so situated would not be likely to receive any great degree of credit. In the case of The King agt. Addis, (3) an accomplice, who was the principal witness, was corroborated as to collateral facts, none of which tended to connect the prisoner with the accomplice or with the transac- tion. Patteson, J., observed that the corroboration ought to be as to some fact or facts, the truth or falsehood of which would go to prove or dis- " prove the offence charged against the prisoner. And in the later case of The King agt. Wilkes, (4) on an indictment against two persons, Aider- son, B., pointed out the distinction between confirmation as to the circum- stances of the felony, and confirmation affecting the individuals charged ; the former only proves that the accomplice was present at the commission of the offence ; the latter shows that the prisoner was connected with it. In summing up, the judge observed that confirmation merely as to the circumstances of the felony was really no confirmation at all ; that it was true, the jury might legally convict on the evidence of an accomplice only, if they could safely rely on his testimony ; but that he always advised juries not to act on ttie evidence of the accomplice, unless confirmed as to the particular person charged with the offence. After adverting to the facts of the case as affecting the two prisoners, the same judge stated to the jury, that if they thought the accomplice was not sufficiently con- firmed as to one, they would acquit that one ; and that if they thought he was confirmed as to neither, they would acquit both. Where a thief and receiver were jointly indicted,(5) the same learned judge expressed his opinion that confirmation as to the thief did not advance the case against the receiver. And in a former case of a similar description, (6) where there was a slight confirmation as to the receiver, (1) Euaa. & Ey. 0. 0. 252. (2) '7 0. & P. 152. (3) 6 0. & P. 388. (4) 7 0. & P. 211. See, also, E. v. "Webb, 6 0. & P. 595. (5) B. V. Moores, 1 0. & P. 210. (6) E. T. "Wells, M. & M. 326. SEC. II.] Of the Confirmation of Accomplices. 117 but none as to the principal felon, Littledale, -T., thought the case failed altogether, and that the accomplice ought to be confirmed as to the prin- cipal before the jury could be asked to believe the witness's testimony as to the guilt of the receiver. In the case of The Eang agt. Parler,(l) Lord Abinger, C. B., said : " It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testi- mony of an accomplice, unless the accomplice is corroborated in some material circumstance. Now, in my opinion, that corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corrobora- tion at all. The danger is, that when a man is fixed, and knows that his own guilt is detected, he purchases impunity by falsely accusing others. "(2) On a review of the cases above cited, the result that may be deduced from them seems to be : That, on the trial of a prisoner against whom an accomplice appears as witness, there should be (in order to warrant a judge in advising the jury to give credit to such a witness, and to warrant the jury in convicting) some confirmatory evidence ; that is, some proof independent of the evidence of the accomplice, from which it may be rea- sonably inferred that the prisoner was concerned with the accomplice in the commission of the crime. And on the trial of several prisoners charged as being jointly concerned in a crime, for warranting the jury in convicting all the prisoners there should be some unimpeachable inde- pendent evidence, from which the jury may reasonably be satisfied that the accomplice speaks truly as to all the prisoners, and that they were all jointly concerned with him. But it would be going much too far, to bind the discretion and judgment either of a judge or a jury by any fixed, rigid rule as to the quantity or kind of confirmatory evidence which ought to be given. This, however, is settled — that the confirmation required should not be a confirmation merely of those parts of the narrative which impli- cate the accomplice alone, and which may be true without involving the prisoners in any share of the transaction ; but such a corroboration, by unimpeached evidence, as may satisfy the jury that those persons whom he charges with a participation in the crime were, in truth, as he repre- sents, his confederates and associates in guilt. It appears to be settled also, by the authorities before cited, that the question, whether evidence brought forward to confirm the accomplice is a satisfactory and suflEicient confirmation, is a question which the jury, and the jury only, are to determine. (1) 8 C. & p. 106. (2) See, further, R. v. Dyke, 8 0. & P. 261; R. v. Birkett, Id. T32. 118 Of the Evidence of Informers and [CH. VI. SECTION" III. Of the Evidence of Informers and Self-Discrediting Witnesses. 1. Infonners. There is another class of witnesses who cannot properly be considered as coming within the description of accomplices, or as partaking of their criminal contamination— namely, persons who have entered into commu- ■ nication with conspirators, with an original purpose of discovering their secret designs, and of disclosing them for the benefit of the public.(l) The existence of such original purpose on their part is best evinced by a conduct which precludes them from wavering or swerving from the dis- charge of their duty, if they might otherwise be disposed so to do ; as when the witness voluntarily makes an early disclosure, and thenceforth acts in pursuance of directions given to him as to the part which he is to bear in the general confederacy. Such a witness is not to be considered in the light of an accomplice, although, perhaps, on other grounds, no small degree of prejudice or disfavor may attach to him ; for certainly, no man of honor or right feeling would continue to associate with his com- panions, apparently forwarding the purposes of a conspiracy, with the intention afterwards of betraying and giving them up to justice. What- ever may be the merit or demerit of this species of conduct on other grounds, such a witness is not, strictly speaking, an accomplice. The objection to the competency of informers, on the ground of being entitled to a penalty on the conviction of the offender against whom they give information, has been considered in another part of this work.(2) 2. "Witness alleging his own dishonesty. Mr. Justice Lawrence observes, (3) that the constant practice of examin- ing accomplices shows that the mere circumstance of a man's having rep- resented himself as having done things inconsistent with common honesty is not sufiicient to reject his testimony, however it may weaken and impeach it. The maxim of the civil law — nemo allegans suam turpitudi- nem est audiendus — would not admit of such a practice.(4) But this maxim is of a nature so. exclusive in its operation, and at the same time (1) See Lord EUenborough's address to the jury in Despard's Case, 28 How. St. Tr. 489. On the trial of an indictment against the prisoner for a conspiracy to procure property under false pretences, the acts and representations of a supposed agent or joint conspirator cannot be given in evidence until it is first shown that he acted by the procurement of the prisoner, or at his instigation. But though such testimony be improperly received, the error will be cured by a subsequent direction to the juryto disregard such evidence. The People v. Parish, 4 Denio E. 163 (2) Supra, ch. 4, § 2. (3) Jordaine v. Lashbrooke, 1 T. R. 601. (4) " Testes qui adversus fldem suam testationis vaciUant, audiendi non sunt," was also the maxim of the civil law. Domat, Book 3, tit. 3, § 6, art. 1 2. SEC. III.] Self-Discrediting Witnesses. I 119 so vague and undefined, tbat our courts of law have properly rejected it as a rule of evidence, althougli in some old cases it appears to have been acted upon.(l) In the case of "Walton v. Shelley,(2) which was an action upon a bond, given by the defendant in consideration of the plaintiff's delivering up (1) See Titus Gates' Case, 10 How. St. Tr. 1185 ; Canning's Case, 19 How. St. Tr. 632. (2) 1 T. R. 296. (A person who transfers a negotiable note or draft as good business paper, whether by indorse- ment or delivery, is precluded, is estopped from setting up the defence of usury to an action brought on the instrument, or for the recovery of the money received on it. MoKnight r. Wheeler, 6 Hill, 492 ; Edwards v. Diclc, 4 Barn, k Aid. 212. But it has been held that the drawer of a bill payable to his own order and accepted for his accommodation, who transfers it by indorsement usuriously without representing it to be business paper, may interpose the defence of usury, and that the acceptor may also set up that defence. Clark v. Lisson, 4 Duer, 408. In Edwards v. Dick (supra), it did not appear that the defendant, the drawer of the bill and payee named in it, who transferred it by indorsement after acceptance, made any representation in re- gard to it except what was implied by the transfer for a good consideration ; and so in MoKnight V. Wheeler, it did not appear that the payee who transferred the note by indorsement made any representation except what was implied by tiie transfer for value, for the face of the note ; and in each of those cases the court treated the transfer as a new contract, not within the statutes of usury and gaming. The statute pronounces void all notes, bills and other securities given for an usurious consideration ; but the law does not allow the maker of a note, who has represented it to be good business paper and thereby induced another person to purchase the same, to interpose the defence of usury. Middletown Bank t. Jerome, 18 Conn. 443. And when the holder and apparent owner sells negotiable paper at an under-value representing it to be good business paper, the transaction is not usurious ; if sold without indorsement, the vendor is liable thereon for the money given therefor ; and if sold by indorsement, the indorser is precluded from setting up the defence of usury. Holmes v. Williams, 10 Paige Ch. R. 326. The case of Clark v. Lisson, holds that the vendor is not estopped, unless he has made some positive representation that the security was business paper ; but it seems clear that the vendor is liable for money had and re. ceived where he sells worthless paper for value, concealing the fact rendering it valueless.) Note 58. — The decisions upon this subject in the United States are far from being uniform. Not only have the different courts divided upon the question whether the loose maxim adopted in Walton v. SheUey should be applied in any case, but those who have applied it have differed in measuring the extent of its application, and have sometimes been inadvertently, and sometimes confessedly inconsistent with themselves. The only way, therefore, in which the character of these decisions can be presented, would seem to be by a consideration of them as they began and iiave gone forward in each distinct court. In the United States courts, the case of Walton v. Shelly has been followed, and stUl main- tains its ground. United States v. Dunn, 6 Peters, 51. See per Chase, J., in Wilson v. Lenox, 1 Cranch, 201. The following collection of the decided cases, arranged in chronological order for each state will exhibit the opinions of the courts of the several states, so far as they are ascertained, and the various modifications which the doctrine has received : New York. The payee and indorser of a promissory note, who had been discharged under the bankrupt law of the United States, and had released all his interest, was held to be an incompe- tent witness for the maker, or a subsequent indorser, to prove that the note was given for an usurious consideration. Winton v. Saidler, 3 John. Cag. 185. And see Steinbaok v. Rhinelander, Id. 269. But an indorser of a promissory note was held a good witness for the maker, in a suit against him by the indorsee, to prove the indorsement was made after the note became due, with a view to let in proof impeaching it. Baker v. Arnold, 1 Caines' Rep. 258. A- made a promissory note, payable to C, who indorsed it for the accommodation of A,, which 120 0/the Evidence of Informers and [CH. VI. note A. subsequently negotiated to S. at an usurious rate of interest. To pay this note, when it became due, A. drew two other notes payable to C. and indorsed by him, which A. by the order of S. delivered to R. & H., who were acquainted with the previous transactions. These notes were protested in the name of E. & H. for non-payment. C. then made two other notes, payable to E. & H. or order, for the purpose of taking up the protested notes. In an action by E. & H. against C. on one of the notes last made, A. was offered by the defendant as a witness to prove the facts, and was released by C, the defendant. Held, that he was not a competent witness to invalidate the note of which he was maker, and that it was immaterial whether the suit was directly on the note alleged to have been usurious, or whether it comes in question collaterally, the cases being considered by the court as the same, because they involve in them the validity of the original notes. Coleman v. Wise, 2" John. Eep. 165. And see Cummings v. Fisher Anth. N. P. Eep. 1, 7, and note a, at p. 9. A party to negotiable paper may be a witness to prove facts subsequent to the due execution of the instrument, which wiU destroy the title of the holder, or which wUl cast on him the burden of showing himself a lonafide holder. Thus, where a note was drawn by H. payable to M., and M., after indorsing it, delivered it to a third person to be presented to the bank for discount, who, instead of offering it at the bank, fraudulently put it into the hands of a broker, it was held that M., the indorser, was a competent witness to prove these facts. Woodhull v. Holmes, 10 John. Rep. 231. So where a note, before it became due, was paid to the payee by the maker, who took a receipt in full, and the note was afterwards, before it became due, indorsed by the payee and by the indorsee to the plaintiff, who was informed of the payment before receiving the note, it was held that the plaintiff took it subject to such payment, and that the first indorsee was a competent witness to prove the payment of the note. "White v. Kibbing, H John. Eep. 128. The payee of a note having indorsed it to the plaintiff upon an usurious consideration, he was held an incompetent witness, in an action against the maker, to prove the usury, and it was held to make no difference that the plaintiff knows the fact of usury, or was a party to it. Mann v. Swann, 14 John. Rep. 210. A note was indorsed by the defendant for the accommodation of the makers, who were then in good credit. Before negotiating the note, they became insolvent, and the defendant then directed them not to part with it, which they promised. They afterwards passed it to the plaintiffs, with full notice of all the circumstances, in satisfaction of a debt due from them to the plaintiffs. The plaintiffs having brought an action on the note against the indorser, held, that the plaintiffs were not ionafide holders, and could not support the action ; and that as the defence rested on matters arising subsequent to the execution of the note, one of the makers was a competent witness to defeat the recovery. Skelding v. Warren, 15 John. Rep. 270. See Hubbyv. Brown, 16 Id. TO. Such subsequent fact, however, must not involve the moral turpitude of the witness. The mean- ing of the rule that a party to a negotiable instrument cannot be a witness to invalidate it, is that one whose name appears on the paper shall not be admitted to say that it was tainted with illegality or fraud when it passed from his hands. Agreeably to this rule, it was held that a second indorser is competent to prove that the third indorser had said that he had received and discounted the note on usurious interest. Powell v. Waters, 17 John. Eep. 176. But where an agreement was made between the maker and payee, at the time of the execution of the note, that it should be deemed void and returned if the maker did not take certain goods of the payee for which the note was given, and the payee immediately indorsed the note to the plaintiff to secure a debt, at the same time informing him of the condition upon which the note was given; in an action against the maker, the indorser was held competent to prove that the plaintiff had notice of the conditions, and that the maker did not take the goods of the payee, so that the note became void ; because, the indorser was not called to prove the note void at its inception but to show that it became so by the subsequent determination of the defendant not to take the' Mods M'Padden v. Maxwell, 17 John Eep. 188. The plaintiff requested the defendants and R. to lend him their names to a note for 2 000 dol- lars, for the purpose of raising money for the accommodation of the plaintiff, and it was agreed that R. should make the note payable to the defendants, to be indorsed by them ■ and the de- fendants accordingly indorsed a blank paper and delivered it to the plaintiff to be filled up by E ■with a note for 2,000 dollars, which the plaintiff, without the privity or consent of the defend- SEC. III.] Self-Discrediting Witnesses. 121 ants (the indorsers), procured R. to fill up with a note for 4,000 dollars ; held, that D., a sub- sequent indorser, and R., the maker, were competent witnesses to prove the fraud in the filling up of the note, the reason and policy of the rule being to guard and protect bona fide holders of negotiable paper, which they have honestly received in the usual course of business, and not for the benefit and protection of the party who is the very person that committed the fraud in the inception of the note. Myers v. Palmer, 18 John. Rep. IS"?. So where S. made a note to C, who indorsed it to the plaintiff, on which the plaintiff received five per cent, above the legal in- terest, and on the note becoming due, C. procured D., the defendant, to make another note pay- able to him, which he indorsed to the plaintiff to take up the former note ; in a suit by the plaintiff against D., the maker of the last note, it was held that C, the indorser of both notes, was a competent witness to prove the usury, the plaintiff being himself the" usurer, and of course having notice that the original note was infected when he received it, and the mere change of securities not purging the original illegal consideration. Tuthill v. Davis, 20 John. Rep. 285. In an action by the holder against the maker of a promissory note, the defendant offered to prove by the payee that he, the payee, had no interest in the note, but took it for the benefit and on behalf of the plaintiff, and immediately delivered it to the plaintiff, advising him of all the facts relative to the making of the note, and upon what consideration it was made ; held, that the payee was a competent witness to prove the note void for usury, and that the case of Wiu- ton V. Saidler (cited supra), was not law. Stafford v. Rice, 5 Cowen's Rep. 23: And so where, in an action on a promissory note by the indorsees against the indorser, the defence was that the note was discounted by the plaintiff, computing the interest by the standard of thirty days to a month, and 360 days to a year, it was held that the maker was a competent witness to prove that fact. Utioa Bank v. HUlard, 5 Cowen's Rep. 153. The rule formerly held by the Supreme Court, that one whose name appears on negotiable paper should not be received to testify that it was void ab miiio, did not apply to one who held the paper mala fide. Powell v. Waters, 8 Cowen's Rep. 669. Where a member of a copartnership, without the knowledge or assent of the other partners, drew a note in the name of the firm, and having procured the indorsement of the defendant: passed it to the plaintiffs for a debt due from him to the plaintiffs, it was held that the indorser was not liable to pay the note, and that the partner who drew the note was a competent witness for the indorser to prove the defence. Williams v. Walbridge, 3 Wend. Rep. 415. Massachusetts. A grantor is not a competent witness to explain a latent ambiguity in his own deed, even when he is not interested. Revere v. Leonard, 1 Mass. Rep. 91. But see Baker v. Sanderson (3 Pick. Rep. 348), where it was decided that the grantor was a competent witness to estabhsh a collateral fact, as the situation of the premises at the time of the grant. A party to a negotiable security shall not be permitted to testify that at the time he gave it currency, it was void. But he may testify to any facts happenmg afterwards. Thus where, in an action by the indorsee against the indorser of a promissory note, the defendant offered the maker as a witness to prove that before the note heoame due, he paid to the plaintiff fifty dollars on account thereof) and gave him a new note for the balance, which was received in full satis- faction, the defendant having released the witness fi-om all demands on account of the note it was held that he was competent. Warren v. Merry, 3 Mass. Rep. 27. A witness who had indorsed his name in blank on a biU of lading, was called to prove that he acted as agent for the plaintiff, and it was objected that he should not be permitted to falsify or invalidate his indorsement ; but the court said that the rule was confined to negotiable instru- ments, and even if it extended to a bill of lading, the witness was not called to invalidate his in- dorsement, but to explaih'it, and held him competent. Brown v. Babcock, 3 Mass. Rep. 29. Where the grantee of land was called as a witness to prove that the conveyance was made without consideration, and so void as to creditors, and was objected to on the ground that he was incompetent to impeach a deed to which he was a party, the court said that the common-law principle never went further than to exclude a witness from testifying to invalidate a security to which he had given a credit by his signature ; that the late oases confined the rule to parties on negotiable paper, who had by their own acts given it a credit and currency, and held the witness to be competent. Hill v. Payson, 3 Mass. Rep. 559. In an action by the indorsee of a note against the maker, who offered the payee and indorser as a witness to prove that the note was made on an usurious contract, the court, on a fuU con- 122 Of the Evidence of Informers and [CH. VI. ^deration of the caaea of -Walton v. Shelley (1 Term. Eep. 296), and of Buckland v. Tankard (5 Id. 518), ruled that the indorser could not be admitted as a witness to prove the note usurious, it being to destroy hia own contract. Parker v. Lovejoy, 3 Mass. Eep. 565. The defendant made a promissory note payable to C, who indorsed it in blank, and which, to raise money, they de- livered to B., a broker, who also indorsed in blank, and sold it to the plaintiff for an usurious consideration; held, that the indorsers were incompetent to prove the usury. Churchill v. Suter, 4 Mass. Rep. 156. And see Putnam v. Churchill, Id. 516. A bill of exchange was indorsed by the payee to A. B. as their agent for coUection only ; A. B. indorsed it wUhcmt recourse to C. D. in trust for the payees ; m an action by C. D. against the drawers, A. B. was received as a competent witness to prove the trust, and its revocation by the payees, in order to defeat the action, these facta being subsequent to the due execution of the note. Barker v. Prentiss, 6 Mass. Rep. 430. C. made a promissory note payable to the defendant, who indorsed it for the accommodation of C, to enable him to raise money on it ; C. delivered the note to a broker, who negotiated it to the plaintiff at an usurious rate of interest ; held, that C, although released by the defendant, was not a competent witness to prove the usury, and thus impeach a negotiable security to which he was a' party. Widgery v. Munroe, 6 Mass. Rep. 449. And in an action by the in- dorsee of a note against one of two Joint makers, the other maker was offered as a witness to prove the note usurious, the defendants having released him ; but the court refused to admit him to impeach the note he had signed. Jones v. Coohdge, 1 Mass. Rep. 199. But where the payee of a note, who had indorsed it with a saving of his own liabUity, was of- fered by the defendant, in an action by the indorsee against the maker, to prove an alteration of the note subsequeni to its execution, he was admitted. Parker v. Hanson, 1 Mass. Rep. 410. And where the drawer of a bill of exchange, at the time of drawing the bill, exhibited to the payee an absolute engagement on the part of the drawee to accept the bill, and at the same time communicated to him certain conditions and restrictions to which the engagement was subject ; in an action by the payee against the drawee, held, that the drawer was a competent witness to prove such communication, and that the conditions mentioned were not performed, these circumstances not affecting the validity of the bill in its inception. Storer v. Logan, 9 Mass. Rep. 55. The defendant made a negotiable promissory note, payable to W., who indorsed it to the plain- tiff; in an action on the note, the defendant offered to call the indorser to prove usury in the transfer of the note by him to the plaintiff; held, that he was incompetent to prove the usury. Manning v. Wheatland, 10 Mass. Rep. 502. Where the maker of a note, before it became due, paid the sum due thereon to the payee, who subsequently indorsed it to the plaintiff, held, in an action by the plaintiff as indorsee against the maker, that the indorser was a competent witness to prove such payment. Fitch v. Hill, 11 Mass. Rep. 286. Where a deed of conveyance was alleged to have been made to compound a felony, it was held, that the grantor was a competent witness to prove that fact, and that the rule that a party to a paper is incompetent to invalidate it, applies only to negotiable instruments. Inhabitants of Worcester v. Eaton, 11 Mass. Rep. 368. See also, to the same point, Loker v. Haynes, Id. 498, and Bridge v. Bggleston, 14 Id. 245. It would seem from the remarks of the court in pronouncing judgment in the case of Butler v. Damen, that an indorser of a note could not be a witness to prove it to be merely an accommo- dation note, and not given for any value. The court said, " the principle of the case of Churchill V. Suter, is applicable here ; a party to a negotiable security shall not be permitted to show fbots antecedent to the transfer, whereby tUe holder is to be defeated of his recovery." Butler v. Damen, 16 Mass. Rep. 223. If the instrument, although negotiable in form, has not in fact been negotiated, but the contest is between the original pai-tiea to the illegal transaction, the rule of exclusion does not apply- Thus, in an action by the administrators of the payee of a note against the administrators of the maker, a person who was a several promisor on the note as surety was held to be a competent witness to prove that the note was given for an usurious consideration. Fox v. Whitney, 16 Mass. Rep. 118. In assumpsit by the indojsee of a promissory note against the indorser, the defence was, that SEC. III.] Self-Discrediting Witnesses. 123 the note was indorsed for the accommodation of the maker, and that, subsequent to the indorse- ment, the maker procured the note to be discounted by the plaintiff at a greater than the legal rate of interest, and the maker was offered by the defendant to prove the usury ; but he was rejected by the court, on the ground that the note was, for all substantial purposes, made at the time it was discounted and put into circulation, and that therefore the usury was not a fact sub- sequent to the execution of the note. Hartford Bank v. Barry, 17 Mass. Rep. 94. One who had signed a negotiable promissory note, as agent for the promisors, was held to be incompetent, in an' action by the indorsee against the promisors, to prove the note usurious. Chief Justice Parker, in delivering the opinion of the court, says : " The witness, although not an- swerable on the note, by reason of the signature, was the party who gave it currency and put it into circulation. He must be considered as having declared, by his signature, that the note was good and valid at the time it was made, for aught he knew to the contrary ; and he ought not to be allowed afterwards to say that his declaration was false, and that the note was void, on account of facts known to him at the time it was signed." Packard v. Richardson, 11 Mass. Rep. 122. Assumpsit on a promissory note made by the defendant, payable to W. P. and by him in- dorsed to the plaintiff. The defendant offered the indorser as a witness, to prove that the con- sideration of the indorsement was usurious ; but he was rejected, on the authority of Manning v. Wheatland (cited avpra), as incompetent. Knights v. Putnam, 3 Pick. Rep. 184. In the same case, it was held that the indorser was not a competent witness to prove that the note was pledged to the plaintiff as indorsee, as collateral security for a debt less than the amount of it, although he had released all claims on the note. On a motion for a new trial, the court seein to question the correctness of the principle as laid down in Manning v. Wheatland. Wilde,, J., said, " the authority of that case had been ques- tioned, and the objection to the doctrinej as there laid down, was entitled to great consideratioB. The witness was held to be incompetent, not because he was interested, but on the ground of legal policy, which wiU not permit one who has transferred a negotiable security as valid, to inval- idate it by his testimony. But in that case, as in this, there was no illegality in the original con- tract, and no usury except in the transfer, in which the plaintiff himself was the guilty party. No deception was, therefore, practiced on him." The case finally was decided on a different ground, the court holding that the facts, when proved, did not constitute a defence to the action- See the case of Pox v. Whitney (cited swpra), where the doctrine laid down in Manning v. Wheat- land, seems to be overruled. Pennsylvania. One who has signed an instrument in writing cannot be permitted to give tes- timony to invalidate it. Thus, where in an action brought by the indorsee of a promissory note, against the drawer, the payee, who had indorsed it, was called to prove that the note was given without any consideration, it was held that he could not be a witness to invalidate an instrument which he had signed, StUle v. Lynch, 2 Dall. 194. And see Respublica v. Ross, Id. 239. But this rule is confined to negotiable instruments ; and where a witness was offered to exr plain a receipt which he had given, M'Kean, 0. J., admitted him, and said, " The general ejc- pression in Walton v. Shelley, must be limited as explained in Bent v. Baker (3 Term Rep. 33, 36), and, therefore, since the witness is disinterested, he must be admitted." Pleasants v. Penj' berton, 2 Dall. 196. The defendant, on the 6th March, lite, gave a promissory note to A., payable on demand, which he afterwards indorsed to the plaintiff. On the 4th April, I'J'je, A. drew a bill on the de- fendant for the amount of the note, payable at sight, to 0., who immediately indorsed it to the plaintiff, and which the defendants afterwards accepted. In an action on the bill against the de- fendant as acceptor, he offered the testimony of A. to prove that the consideration of the note and the bill were the same, and that the note had been previously paid. The court declared their opinion that this case was within the rule as restrained in Bent v. Baker (3 Term Rep. 33, 36), but avoided giving any decided judgment thereon, and declared that in the case of frauds they would go great lengths in the admission of evidence. Shaw v. Wallis, 2 Teates, 17. A mortgagor was offered to prove that a mortgage which was given to A., was, in fact, in- tended for the security of B., and he was held to be competent. Peterson v. Willing, 3 Dall. 506. A party to a fraud is competent to prove it ; and within this principle a grantor who had acknowledged the receipt of the consideration money in a deed, was held competent to prove, that the acknowledgment was a fraud upon the grantee's principal, as intended to show that his 124 Of the Evidence of Informers and [CH. vi. agent had paid over the money intrasted to him for the purpose by the principal, when in truth it was not paid, but the agent had taken a deed in his own name, and secured the money by mortgage on the same land. Langer v. Felton, 1 Rawle, 141. And where the defendant ex- ecuted a bond payable to C, who assigned it to the plaintiflf, it was held that C, the assignor, was a competent witness for the defendant to prove fraud in the execution and assignment of the bond, and that although a bond was' assignable by a statute of Pennsylvania^ yet it was not a negotiable security within the meaning of the rule which excludes a party to an instrumenti from giving testimony to invalidate it. Baring v. Shippen, 2 Binn. 154. *So the master of a vessel is competent to impeach the vahdity of an invoice and bill of lading, in an action by the owner against the underwriters. Blagg v. The Phoenix Insurance Co., 3 "Wash. C. C. Rep. 5. So a grantor in a deed was held to be a competent witness to prove that it was obtained by mis- representation, and without any consideration. M'Parran v. Powers, 1 Serg. & Rawle, 102. So to prove he had no title to the land when he conveyed. Brownrigg v. Downing, 4 Serg. k Rawle, 494. D., who was a member of the firm of C. & D., made a promissory note in the name of the firm, payable to M. or order, who indorsed it in blani: and delivered it to the plaintiff after it became due. The process was served on C. alone. On the trial, C. offered D. as a witness, to prove that the note was given, not for a partnership debt, but for a private debt of D. Held, that the ex- clusion of a party to paper is confined to such negottahle instruments as are negotiable in the usual cowse of business ; that the note not being negotiated until the day of payment was past, was out of the usual course of business, and that the witness was competent. Baird v. Cochran, 4 Serg. & Eawle, 391. And where the names of the payee and several others appeared on the note as indorsers, but the action was brought by the, payee, one whose name was on the paper as a subsequent indorser, was admitted as a witness to prove that the note was given without consideration. Hepburn v. Cassel, 6 Serg. & Rawle, 113. But where the defendant drew a note payable to G. and W., who indorsed it to the plaintiff, it was held that the indorsers were not competent witnesses to prove the note was made without consideration, for the accommodation of the indorsers, and that this was known to the plaintiff when he took the note. Bank of Montgomery v. "Walker, 9 Serg. & Rawle, 229. In an action by the indorsee of a promissory note, against the indorser, the maker, although released, was held not to be a competent witness to prove the consideration of the note usurious. Grifath V. Reford, 1 Rawle, 196. Virginia. The only case which has arisen on this subject in Virginia is that of Taylor v. Beck, which was an action brought by the indorsee of a promissory note against the maker and indorsers, under a statute of that state. One of the indorsers confessed a judgment, and was offered by the other defendants to prove that the note was given for an usurious consideration. The witness was excluded, and the defendants appealed. In the Court of Appeals the case was twice argued with great learning and ability ; and the court, in pronouncing judgment, examined the cases bearing on the subject at great length, and decided that a party to paper, whether negotiable or not, was competent to invalidate it. The witness, however, was excluded on the ground that he was a party to the suit. Taylor v. Beck, 3 Rand. Rep. 316. See, also, what was said in Baring v. Reeder, 1 Hen. & Mun£ 154. Maine. A party to a negotiable promissory note is not a competent witness to impeach it, and the rule applies, not only to actions directly on the note, but to all others where its validity comes collaterally in question. Thus, in a writ of entry, brouglit upon a mortgage deed, by the assignee of the mortgage, against the grantee of the mortgagor, the tenant pleaded that the note, to secure which the mortgage was given, was usurious, and offered the mortgagor, who was the maker of the note, to prove the usury; but he was held incompetent. Deering v. Sawtel, 4 Greenl. Rep. 191. The rule extends to the maker of an accommodation note, and is applied where the note has been delivered up to the debtor, on his giving a recognizance to the creditor for the amount. And its application is not restricted to the case of an innocent indorsee, but is admitted where the usurer is himself a party. Thus, where in a writ of entry the tenant pleaded that the de- mandant levied upon the premises an execution, issued upon a reeognizanco entered into by the tenant, in which usury was included and taken, and offered as a witness the maker of an accommodation note, made for the tenant's benefit, which the tenant indorsed to the demandant, SECIII.J Self- Discrediting Yiitnesses. 125 and which afterwards fonned a part of the consideration of the recognizance, to prove that the note so made and indorsed was usurious. This testimony, so far as it went to show the note to have been detained with usury, was excluded, and the witness held to be incompetent. Chand- ler V. Morton, 5 Greenl. Rep. 314. Vermont. In Vermont the rule of exclusion is not adopted. Thus, in a suit between the assignee of a mortgage and the grantee of the mortgagor, the defendant offered the mortgagor to prove that the notes made by him, and which the mortgage was given to secure, were usurious, after having released him from all liability on his covenants contained in the deed ; and he was held to be a competent witness. Nichols v. Holgate, 2 Aik. Rep. 138. New Hampshire. In an action by the indorsee of a promissory note, against the maker, the only question was, whether the indorscr was a competent witness to prove the note usurious, and the court said, that the rule that a party who has put his name to a negotiable instniment cannot be a witness to show it was originally void, even in a suit between the original partieg to the instrument, was too well settled to be questioned. Houghton v. Page, 1 N. H. Rep. 60. And see Hadduok v. Wilmarth, 5 K H. Rep. 181, per Richardson, Ch. J. ; and Carleton v. Whitcher, 5 N. H. Rep. 196, 200. But an indorser may be a witness to prove payment before the indorsement. Thus, in an action by the indorsee against the maker of a note, the indorser was held to be a competent witness to prove that the maker paid the note to him before he indorsed it to the plaintiff, and that the plaintiff was apprised of that fact when he took the note. Bryant v. Ritterbush, 2 N. H. Rep. 212. Connecticut. In an action of trespass quare clauswm, fregit, the plaintiff offered in evidence a lease of the premises in question, from M., dated in 1196. The defendant claimed under a deed and lease from M., dated in 1197, and offered M. as a witness, to prove that the lease to the plain- tiff was void. He was rejected, and the court said, that the rule laid down in Walton v. SheUey, that no man should be admitted to swear against his own deed, was sound law, and ought to be adhered to. Allen v. Holkins, 1 Day, 17. See Swift's Ev. 96, ei seq. Tlie plaintiff brought an action of trover against the defendants, for one undivided half of a vessel, and claimed under a bill of sale from K. The defendants claimed also under a bill of sale from K., made subsequent to the plaintiff's bill of sale, and offered K. as a witness to prove, that after the execution of the bill of sale to the plaintiff, and before the execution of that to the defendants, the plamtiff made K. his factor or agent to sell and dispose of the vessel, and left the same in K.'s possession for that purpose : and that, in pursuance of this arrangement, K. sold to the defendant. K. was adjudged to be a competent witness, on the ground that a party to an instrument may be a witness to prove facts subsequent to its execution, which tend to defeat it. Webb V. Danforth, 1 Day, 301. A party to a negotiable instrument, who is divested of his interest, is a competent witness to prove it void in its creation. This was an action on a bill of exchange, drawn by B. and A. T., payable to the plaintiff or order, and accepted by the defendants. The defence was usury, and on the trial the defendants offered B. and A. T. as witnesses to prove the usury, they having been divested of their interest. The question being reserved for the opinion of the judges, it was held, that the witnesses were competent. The remarks of the judges in Allen v. Holkius, and Webb V. Danforth (cited supra), adopting the rule in the case of Walton v. Shelley, as law, were said to be obiter dida, and after a fuU examination of the authorities, the decision of the court in Jordaine v. Laslibrooke, was declared to be sound law. Townsend v. Bush, 1 Conn. Rep. 260. Louisiana. In an action by the indorsee against the second indorser of a promissory note, the first indorser is a competent witness to prove an alteration in the note subsequent to his indorse- ment. In giving judgment in this case, the court intimate the opinion that the law is settled that a party to paper is incompetent to prove any facts to invalidate it at the time it passed from his 'hands. Shamburgh v. Commagere, 10 Mart. Lou. Rep. 18. The defendant, maker, called the payee and indorser to prove that he took the note as the mere agent of the indorsee and the plaintiff, in order to let in proof of want of consideration. Held admissible ; and said that the rule is of modern date, and not settled, which would preclude a party to negotiable paper from impeaching it by his evidence. Admitting the rule to exist, however, the court denied its application to the case in question. Cox v. WUliams, 5 Mart. Lou. Rep. (N. S.) 139. SmOi Carolina. In this state, the parties or witnesses to negotiable or other paper, being free 126 Of the Evidence of Informers and [CH. VI. of interest, are receivable to impeach it in any way and on any ground, the doctrine of Walton V. Shelley, or any of its kindred cases, never having been recognized or acted upon since Canty v. Sumter, 2 Bay, 93 ; "Willbourn v. Parham, 1 Harp. StS, 379; Knight v. Packard, 3 M'Cord, 11; Kecherly v. Cheer, 4 Id. 397, 401. And vid. Nichols v. Artman, 1 Harp. 285 ; Croft v. Arthur, 3 Dessauss. Eq. Eep. 223 ; Payne v. Trezevant, 2 Bay, 23 ; Haig v. Newton, 1 Rep. Const. Ct. 423 ; Mott v. Dorrell, 1 M'Cord, 350 ; Thomas v. Brown, Id. 557 ; Fleming v. Mulligan, 2 Id. 173 ; and Brummer v. Wilkes, Id. 178. Canty v. Sumter is misreported. 3 M'Cord, 71, note. Maryland. In an action on a, promissory note, drawn by the defendant, payable to W. or order, and by him indorsed to the plaintiff, the defendant offered W., the payee and indorser (W. and the defendant having executed mutual releases), to prove that the defendant drew the note in question, and delivered it to W. to raise money upon it, for the benefit of the defendant ; that the plaintiff discounted the note at the rate of three per centum per month ; and that W., as the agent of the defendant, had paid the amount of the note to the plaintiff; held, that W. was a competent witness to prove both the payment and the usury. Ringgold v. Tyson, 3 Har. k John. 172. So, where a promissory note was drawn by B., payable to H., and by him indorsed to C, who indorsed it to B. ; held, in an action on it by E. against H., that B. was a competent witness to prove that the note was given on an usmious consideration. Hunt v. Edwards, 4 Har. & John. 283. North Carolina. The plaintiff claimed the property in question by gift and delivery from his father. The defendant alleged that the father afterwards conveyed the property to him by bill of sale. The plaintiff introduced the wife of the father to prove the gift. Taylor, Judge : — " She cannot be admitted ; the lather himself could not be a witness, because he shall not be suffered to defeat his own deed ; and if he could not, neither can the wife, for she is not competent to prove a fact which he could not be admitted to prove." Anonymous, 2 Hayw. Rep. 127. M'Kay, Judge : — " No doubt can be entertained that decisions have been made in this state, which reject the evidence of a man who is offered as a witness to detract from an instrument himself has given. Here, however, the instrument was given by the witness as an attorney ; ' Samuel Landrum, attorney,' Ac, is stated in the deed. He is therefore admissible, and is not subject to the rule insisted on." Executors of Alston v. Jones's Heirs, 2 Hayw. Rep. 298. In an action of ejectment, the lessors of the plaintiff claiming title under a deed from C, the defendant offered C. to prove circumstances showing the deed to be invalid; held, that he was competent, and that the rule excluding a witness from impeaching his own instrument, did not apply, at least to an instrument not negotiable. Doe ex dem. Gwyn & Waugh v. Stokes & Welburn, 2 Hawks, 235. Kentucky. In an action on a note drawn by the defendant, payable to K., which was ipdorsed, without recourse by K. to R., by him to A., and by A. to the plaintiff, it was held, that K. was a competent witness for the defendant to prove the note void for usury. Gorham v. Carrol 3 Littell, 221. Yid. Ford v. Hale, 1 Monroe, 23. The foUowing cases, in further illustrations of the extent of the rule, that one shaU not be re- ceived to impeach an act to which he was a party, may be consulted. In some cases, the rule ' has been very extensively applied, being extended to deeds, and even oral sales. Pierce v. HindsaU, 1 Tyler, 153; Plummer v. Lane, 4 Harr. & M'Hen. 72. ' But it has been generally denied as to these. Jackson ex dem. Hopkins v. Leek, 19 Wend. 339 ; Nichols v. Hotohkiss, 2 Day, 121 ; Caston's Ex'rs v. BaUard, 1 Hill, 406 ; Hunter v. Stevenson, Id. 415 ; Hudson v. Hul- bert, 15 Pick. 423, 426 ; Simmons v. Parsons, 1 Bail. 62 ; CaUoway v. Willie's Lessee, 2 Yerg 1 ; Wihnot's Lessee v. Talbot, 3 Harr. & M'Hen. 2; Worthington v. Bicknell, 2 Harr & John. 58' HaU V. Gittings, 2 Id. 380, 386, and note at the last page ; Stump v. Roberts, Cookfe 350 • Guy V. Hall, 3 Murph. 150; Taylor v. Luther, 2 Sumn. 228, 235; Seymour's Adm'r v. Be^h, 4 Verm. Rep. 600, 502, 503 ; Wise v. Tripp, 1 Shepl. 9, 12. Though it is often aUowed as to ne- gotiable paper, subject to certain restrictions and qualifloations. Drake v. Henly Walker's Ren 641 ; Lonsdale v. Brown, 3 Wash. C. C. Eep. 404; Adams v. Carver, 6 Greenl 390- Lane v" Padelford, 2 Shepl. 94; Story, J., in Taylor v. Luther, 2 Sumn. 235; Buck v. Appleton 2 Shopl" 284 ; WendeU v. George, R. M. Charl. 51 ; Freeman's Bank v. Rollins, 1 Shepl. 202 ■ Van Schaack V. Stafford, 12 Pick. 565 ; Spring v. Lovett, 11 Pick. 417 ; Wood, J., in Stone v. Vance, 6 Ham. 248; Harley V. Emeriok, Miles, 36; Bank of Pennsylvania v. M'Oalmont, 4 Rawle 307 311- Gest V. Espy, 2 Watts, 265; O'Brien v. Davis, 6 Id. 498; Emeriok v. Harley, 2 Wharton 60- SEC. III.] Self-Discrediting Witnesses. 127 United States v. Leffler, 11 Pet. 86 ; per M'Lean, J., in Scott v. Lloyd, 12 Pet. 149 ; and by many of the American courts without restriction, even to avoid negotiable and other paper, unless the witness be interested. Robertson v. Mills, 2 Ear. & Gill, 98, in connection with other Maryland cases; per all the judges, in Billing.sly v. Knight, 2 Tayl. 103, often cited as 3 N". Car. Law Re- pos., though several cases are cited from the North CaroUna reports which go strongly the other way. This stood with a quere in Connecticut (Cowles v. Wilcox, 4 Day, 108), but it is now no longer so. The party even to negotiable paper is received to impeach it, in Georgia (Slack v. Moss, Dudley, 161), though this was formerly doubted. Wendell v. George, R. M. Charlt. 51. So he is received in Alabama (Todd v. Stafford, 1 Stew. 199, 200), and various other states. Johnson v. Blaokman, 11 Conn. Rep. 342, 348 ; Harmon v. Arthur, 1 BaU. 83 ; Per Johnson, J. iu Char v. Keckeley, 1 Bail. 481 ; Stump v. Napier, 2 Yerg. 35. Gibson, C. J. (in O'Brien v. Davis, 6 Watts, 498, 499, 500), anticipates the abolition of all restriction in Pennsylvania, except the interest of the witness, as in England and most of the American states. See the case of Keefe v. Arohdeken (1 Vem. & Scrlv. Irish Kep. 195, 196, and note), which recognized Walton V. Shelley as law, though we suppose the courts in that' country have suice, like the English courts, repudiated it. Note 59. — Persons, other than the parties in the cause, guilty of offences against the provisions of the act to prohibit betting and gaming, are competent witnesses, and may be compelled to testify ; but their testimony cannot be used in any prosecution against them. 1 Sev. Stat, of N. Y. 663, § 18. And in civil and criminal suits, persons may be witnesses against their accom- plices, because their testimony tends to suppress fraud and injustice ; and for the same reason, witnesses, whether subscribing witnesses or others, may disclose a, fraud. ChurchiU v. Suter, 4 Mass. Rep. 156; Bean v. Bean, 12 Id. 20. On trial of an indictment for usury, the borrower is a competent witness for the commonwealth, if he is not entitled to a moiety of the penalty as informer, notwithstanding he has never paid the money borrowed (Commonwealth v. Frost, 5 Mass. Rep. 53 ;) and in all cases an alleged parUceps fraudis may be a witness to prove or dis. prove the fraud. Major v. Deer, 4 J. J. Marsh, 5-86, 687 ; Glenn v. Kapff, 2 Gill & John. 132 ; Moore v. Tracy, t Wend. 229. The last case was that of a co-conspirator to obtain goods. A witness standing in the same situation with a party, is not, on that account, disqualified, For additional cases on this head, see Lentz v. Stroh, 6 Serg. & Rawle, 34, 41 ; Bailor v. Smithers' Heirs, 1 Litt. 110 ; West v. Bolton, 4 Verm. Rep. 558 ; Moulton v. Moulton, 1 Shepl. 110 ; Smith v. Hubbs, 1 Fairf. 11 ; Moscati v. Lawson, 7 Carr. &, Payne, 32 ; Lethbridge v. Phillips, 2 Stark. Rep. 544. So of an alleged several wrongdoer, whose claim depends on the same question as the one in issue. Maus' Lessee v. Montgomery, 15 Serg. & Rawle, 221, 223. The case of Cooper v. Miller (1 Browne, app. 68), that one is not competent for the defend- ant in replevin, because he went with him and gave countenance to the distress, is contrary to almost, if not quite, the whole current of authority. It was said in one case, that the tortious vendor of the wrongdoer defendant, was not competent for the plaintiff, because a verdict against the defendant would be a bar to an action against the witness. Pierce v. Hindsall, 1 TyL 153, 155. The case itself; as well as the reason given, seems to stand almost alone against a host of authority. The son being sued in trespass for driving away the plaintiff's cow, the father, who directed his son, the defendant, to drive her away, was held competent for the defendant. West v. Bol- ton, 4 Verm. Rep. 558. In case against one conspiring with B. to defraud the plaintiff, B, is a competent witness for the plaintiff. Brown v. Marsh, 8 Verm. Rep. 310, 312, 313. The appearance of an attorney generally for three wrongdoers, one not being summoned, ' will still not make them parties, if the plamtiff proceed against those only who were summoned • and so the third is competent for the others. Lentz v. Stroh, 6 Serg. & Rawle, 34, 41. In trover, A. was called and held competent for the plaintiff to show that he (A.) bought the goods of the plaintiff fraudulently, without the means or intent to pay for them, and sold them to the defendant. Triebner v. Soddy, 7 Carr. & Payne, 718. In separate informations of giio warranto against separate members ot a, corporation, on the trial of one, the other parties are competent for the defendant. Rex v. Gray, 2 Selw. N. P. 1148 (6th ed.) In an action for infringing a patent, the purchaser from the plaintiff of a license to use the patent, is yet a com- petent witness for him. Derosne v. Fairlie, 1 Mood. & Eob. 467. And see Tread well v. Bladen, 128 Of the Evidence of Informers and [CH. VI. certain promissory notes, the Court of King's Bencli held that the indor- se! of one of the notes ought not to be allowed to prove the consideration of the note usurious, on a supposed principle of public policy, that no party who has signed a paper or deed, and has, by his signature, given it credit, shall ever be permitted to give testimony to invalidate that instru- ment. But the contrary principle is now fully established. In the later case of Jordaine v. Lashbrooke,(l) this subject was very fully discussed ; and the court there determined, that in an action on a bill of exchange against the acceptor, the payee, who was also indorser, was a competent witness for the defendant to prove that the bill, which was un- stamped,- and purported to be drawn at Hamburgh, was in fact, drawn in London, and, therefore, void for the want of a stamp. Nor is there any distinction, with respect to negotiable or unnegotia'ble securities, when the point to be considered is the competency of the witness : for, supposing ■what he has done, in putting such instruments into circulation, to be ever so great a fraud and ever so mischievous, he still is a witness not more de- void of principle than many who have been before mentioned as admissi- ble.(2) This rule applies to all cases, civil as well as criminal, in which a wit- ness's character is open to objection from the turpitude or impropriety of his conduct. Thus, in an action under the statute 2 Geo. II, c. 24, for bribery at an election, a person who has received a bribe may be a com- 4 "Wash. C. C. Rep. 103, 104. In an action on the case for waste, by the rerersioner against a stranger, the tenant, though jointly concerned in committing the waste, was held to be a com- petent witness for the plaintiff. Speers y. Broomle, 2 Huds. & Brooke, 432. But the case in fact seems to have been no more than that of Duddington v. Hudson, cited and stated in the text. In lethbridge v. Phillips (2 Stark. Bep. 544), the action was for injuring a picture, and the man who borrowed it of the plaintiff, and without his leave sent it to the defendant, was received for the plaintiff to prove his case. In an action against the owner of a ship, for goods supplied, the master is competent for the plaintiff to prove the ownership. Le Blanc, J., said he was liable in respect to his contract ; but the owners were liable from their character. Eowcroft v. Basset, Peak. Add. Cas. 199. He is equally a witness for the defendant. Descadillas v. Harris, 8 Greenl. 298. In one case, the owner was received as a witness for the plaintiff, in an action to charge another with work done on the schooner at the defendant's special request. Nicholson v. May, 1 Wright, 660. In an action for use and occupation of laud, the defendant's tenant of the same land, who had paid all the rent to the defendant, was held to be a competent witness for the plaintiff. Grant v. Beall, . 4 Har. & M'Hen, 419. In assumpsit against the owner ol' a ship, for money advanced to the master in a foreign port, for which he drew his biU on the owner, he was held a competent wit- ness for the plaintiff. Descadillas v. Harris, 8 Greenl. 298. And said, he was indifferently liable to the plaintiff or the owner, for the principal only ; not, as in Scott v. McLellan (2 Greeul. 199), liable to the party calling him for principal, &o., and costs, and to the other party for principal only. (1) 1 T. R. 6, 601 ; Ashurst, J., contra. See Jones v. Brooke, 4 Taunt. 464. (2) 1 T. R. 611. By this case of Jordaine v. Lashbrooke, the cases of Walton v. Shelley, Adams v. Lingard, 1 Peake N. P. C. Ill, and some other case of the same kind, are overruled. SEC. III.] Of the Evidence of Informers, &c. 129 petent witness against the defendant.(l) And one who has set his name as subscribing witness to a deed or will, is admissible to impeach the exe- cution of the instrument ;(2) although his evidence is to be received with all the jealousy ntecessarily attaching to a witness, who, upon his oath, asserts that to be false, which he has, by his solemn act, attested as true.(3) In an action to recover the price of goods Supplied to a ship, against a party whose name appeared on the register as part owner,(4) it was de- cided that a witness, upon whose oath the register had been obtained, was competent to prove that he had inserted the defendant's name therein without his privity or consent ; and the objection, that the witness's evi- dence was at variance with his oath, would only affect his credit. A per- son who has joined in an assignment of a ship, is a competent witness to prove that, in point of fact, he had no property in the vessel at the time of the assignment.(5) A vendor of property is competent to prove that (1) Bush V. Ealling, Say. 289, cited by Lord Mansfield, C. J., Cowp. 199 ; Mead v. Robinson, Willes, 423, and n. c,Id 425; Howard v. Shipley, 4 East, 180. (2) Lowe V. Joliffe, 1 Black. Eep. 365. See 1 T. R. 604, 611 ; 6 East, 195. (3) 1 Ves. & B. 208. Note 60. — See Pox's Lessee v. Palmer, 2 DaL 214, and Currie v. Donald, 2 Wash. Tirg. Rep. 63. So a judge who has taken a proof of a deed is a competent witness to invalidate such proof. Jackson ex dem. Wyokoff v. Humphrey, 1 John. Rep. 498. The doctrine in the text has often been held in this country. See Glenn v. Kapff, 2 GUI & John. 132, and per Robertson, C. J., and in Major v. Deer, 4 J. J. Marsh. 587. A subscribing witness to a will is competent to disprove the sanity of the testator at the time of the execution of the will. Hampton v. Garland, 2 Haywood, 147. Ei vide Poole v. Richard- son, 3 Mass. Rep. 330. As the law abhors fraud, its rules are framed so as to prevent, by detect- ing and punishing it. Por this reason, witnesses, whether subscribing witnesses, or others, may disclose a fraud. Per Parsons, 0. J., in Churchill v. Suter, 4 Mass. Rep. 161, 162. A witness to a deed is competent to prove it a forgery. Major v. Deer, 4 J. J. Marsh. 587. And it is no objec- tion to his testimony that it goes to invalidate a title derived by deed from him. Hadduok v. Wilmarth, 6 N. H. Rep. 181, 187. It was once held in South Carolina, on the authority of Walton v. Shelley, that the obligee in a bond, who had assigned it, in an action by the assignee against the obligor, was not a competent witness to prove payment. Canty v. Sumter, 2 Bay,' 93. In this case, the witness was also a party on the record ; but no objection appears to have been made on that ground. In Croft v. Arthur (S Dessauss. Bq. Rep. 223), however, it was held that the rule in Walton v. Shelley is confined to negotiable instruments. Canty v. Sumter was misreported (3 M'Cord, 71, note), and the case of Walton v. Shelley has been repeatedly overruled in South Carolina. Knight v. Pack- ard, 3 M'Cord, 71 ; Payne v. Trezevant, 2 Bay, 23 ; Haig v. Newton, 2 Rep. Const. Court, 423 ; Mott V. Dorrell, 1 M'Cord, 350 ; Thomas v. Brown, Id. 557 ; Flemmg v. Mulligan, 2 Id. 173 • Brummer v. Wilkes, Id. 178. (4) Rands v. Thomas, 6 M. & S. 244. (5) By WiUes, J., 1 T. R. 301. Note 61. — The same has been repeatedly held in this and the like cases. Johnson v. Bourn, 1 Wash. Virg. Rep. 187. A factor having pledged goods wrongfully to several persons, is competent for the plaintiif, his principal, in trover by him to recover the goods ; for he stands but in the hght of a joint wrongdoer. Green v. Fisher, 1 Carr. & Payne, 190. So in an action against one for committing waste contrary to his agreement, the person who committed the waste by the defend- ant's authority is a competent witness agamst him. Malone v. Home, 1 Hudson & Brooke, 344. Aparticeps fraudis is a competent witness to prove or disprove the fraud; as the grantor in a Vol. I. 9 130 Of the Rule as to ComTnumcations [OH. Vli. he had no title in the lands pretended to be sold and oonveyed.(l) And a witness, who admits that, upon a fonner proceeding, he swore falsely with regard to the matters upon which he is examined, is not incompe- tent, however the objection may affect his credit.{2) CHAPTER VII. OF THE EXCLUSION OF EVIDENCE, "WHERE THE DISCLOSURE "WOULD BE IN VIOLATION OF PROFESSIONAL CONFIDENCE, OR PREJUDICIAL TO PUBLIC INTERESTS. The preceding chapters have treated of the grounds of incompetency, from want of understanding, from defect of religious principle, and from immediate and individual interest in the event of the suit ; and of the con- firmation requisite in the cases of accomplices and others. The objection to testimony from these causes depends upon one principle, the supposed want of personal credit attaching to the witnesses. Two other grounds for the exclusion of evidence are now to be considered : where the disclosure would be of matters communicated under professional confidence ; and where the disclosure would be prejudicial to public interests. These grounds of exclusion will be the subject of the two following sections. SECTION I. 0/ the Exclusion of Evidence, where the Disclosure would he in Violation of Professional Confidence. Communications, made on the faith of that professional confidence, which a client reposes in his counsel, attorney or solicitor, are not allowed to be revealed in a court of justice to the prejudice of the client.(8) deed to show that it was fraudulent (Jackson ex dem. Mapes v. Frost, 6 John. Rep. 135 1 Loker v. Haynes, 11 Mas8. Rep. 498 ; Langer v. Felton, 1 Rawle, 141) ; or the grantee to show that the grant was without consideration, and ao fraudulent as to creditors. Hill v. PaTSon, 3 Mass. Rep. 559 ; Croft v. Arthur, 3 Deasauss. Eq. Rep. 223. But see Fowler v. Norton, 2 Root, 231, conira. In an action on the case for a false afBrmation, the person concerning whom the affirmation was made was held a competent witness for the plaintiff. "Wise v. "Wilcox, 1 Day, 22 ; Smith v. Harris, 2 Stark. Rep. 4'7. (1) Title V. Grevett, 2 Ld. Kaym. 1008. See 1 T. R. 609. (2) R. V. Teal, 11 East, 309. (3) Note 62.— In Louisiana, a statute enacts that attorneys shall not give evidence in a cause where they are employed. This is intended to preclude them only when they are offered for their clients. They may, therefore, be called on and compelled to testify against their oliente^ in SEC. I.J In Professional Confidence. 131 respect to matters not oonfldential. Coi T.Williama, 5 Mart. Lou. Rep. 139 ; Beeves v. Burton, 6 Id. 283. The curious reader, who would look at the ancient foundations of this rule, may consult Gary, 88, 89, 126, 143, and Toth. ITI, where he wiE find principles by which we are still governed, though less broad than those upon which some of our courts proceed. The cases in Gary are stated at large in the Am. ed. of Starkie's Ev. of 1828, pt. 4, p. 395, note 1. An attorney's clerk is privileged to the same extent as the attorney. Mills v. Oddy, 6 Carr. & Payne, 728 ; Bowman v. Norton, 5 Carr. & Payne, 111 ; post, note 66. As to the subject matter of the privilege, an attorney refusing to produce his client's papers on notice, is not admissible as a witness_ to prove their contents. Bottomley v. Usborne, Peak. Add. Gas. 99, 101 ; Mills v. Oddy, 6 Garr. & Payne, f28, and note o to that case, citing per Lord Lyndhurst, G. B., in Bate v. Zinsey, 1 Grompt. Mees. & Rose. 38 ; Marston v. Dowues, 6 Carr. k Payne, 381. See, also, "Walker v. Wildman, 6 Madd. 41, and Cook v. Hearn, 1 Mood. & Rob. 201. A bankrupt went to an attorney's clerk to consult him as to the state of his affairsi In an action by the assignees, they called the clerk to prove the conversation. The offering counsel, conceding that the clerk was privileged, and that the conversation was in its own nature so, insisted that the privilege followed the right of suit, which having passed to the assigneBB, they might waive it. Beside, he added, that the assignees represented the bankrupt's person, and might waive the privilege for him. But the offer was disallowed. Tindal, C. J., put the case of the commission being set aside, and asked — "Are the man's secrets, told to his solicitor, to-be let out?" Bowman v. Norton, 5 Carr. & Payne, lit. But the attorney, &c., to protect the communication, must be consulted strictly in his profes- sional character. See Rex v. Brewer, 6 Carr. & Payne, 363 ; and Hill v. Elliott, 5 Id. 436 ; Farquano v. Knight, 2 Mees. & Welsh. 100. In Annesly v. Ld. Anglesea (17 How. St. Tr. 1221), the attorney of the prosecutor of an indictment was allowed to state what his client had observed to him, pending the proceedings on the indictment, viz : that he would give a large sum of money to have the prisoner hanged. In the note post, 68, may be seen various instances in which the communications, though made to an attorney, &c., were holden unprotected because not made with a view to professional advice. The books furnish additional illustrations of the kind. Thus, though we have just seen that a bankrupt's communications shall not be dis- closed, if he go to consult the attorney on the state of his affairs, yet in another case, although the communication was made to his acting attorney retained in his affairs, and though it related to them, it was holden not to be privileged. The attorney suggested to his client, that a meetmg of his creditors should be called ; and the client asking him if he could safely attend without being arrested, was advised to remain behind in the attorney's office till it could be ascertained whether his creditors would give him a safe conduct. This was offered in evidence as an act of bankruptcy, and the attorney was allowed to disclose it Abbott, Gh. J., said the privilege must be confined to questions asked with a view to legal advice which it was a part of the duty of the attorney to give as attorney ; but a question asked with a view to obtain information as a matter of fact, being addressed to an attorney where it might have been addressed to any other person, and bemg addressed to him where his character and office of attorney is not called in action, has never been held to be within the protection. BramweU v. Lucas, 4 Dowl. & Ryl. 367, 372 ; S. G., 2 Bam. & Cress. 745. So he may be asked by whom he was employed in the cause (Brown V. Payson, 6 New Hamp. Rep. 443), and in what capacity his clients employed him, whether as executors (Gurney, B., in Beokwith v. Benner, 6 Carr. & Payne, 681); when the instrument in question was putinto his hands, for collection or suit (Walworth, G., in Driggs v. Rockwell, 1 1 Wen. 504, 507, 508), though he cannot be compelled to state its situation or appearance at that time. BrowD V. Payson, 6 N. Hamp. Rep. 443 ; Wheatley v. Williams, 1 Mees. & Welsh. 533. He was compelled to state the fact of giving a check to his client for money collected for him ; and what he then said as to being in funds. Johnson v. Farmers' Bank, 1 Harringt. 117, 118, 119. So of the execution of a deed by his client in his presence (Sandford v. Remington, 2 Tes.jun. 189), and he compellable to disclose any other private commnnication or transaction independent of his character as attorney. Hodges v. MuUikin, 1 Bland, 509 ; Bogert v. Bogert, 2 Edw. Ch. Rep. 399, 403 ; Rogers v. Dare, 1 Wright,, 136, 137. On this principle, he is bound to disdose a statement made by request of his olient, to the adverse party. Riponv.Davis, 2 Nov. & Mann. 132 Of the Rule as to Communications [CH. VII, 310. And Gainsford v. Grammar (2 Camp. 9, contra), was questioned, and smiU, overruled aa there reported. Id. ; Griffith v. Davis, 5 Barn. & Adolph. 502, S. P. Whether the communications to an attorney, &o., in order to be privileged, must relate to a suit depending or at least prospective, as will be seen post, note 67 ; the authorities are con- flicting. And see Brown v. Payson, 6 N. Hamp. Eep. 445, and the cases there cited, by Parker, J. That either is necessary was denied in Beltzhoover v. Blaoljstock (3 Watts, 20, 22, 27, 28). And this seems to be now the settled doctrine of Westminster Hall, besides being sustained by a decided preponderance of American authority. See Taylor v. Blacklow, 3 Bing. N. C, 235, and the cases there cited by the counsel and the court; Doe dem. Peter v. Watkins, Id. 421 ; Walker v. Wildman, 6 Madd. 47. The question arose in Poster v. Hall (12 Pick. 89), where it was much considered. Mr. R., an attorney, was consulted by and gave advice to a grantor concerning a proposed deed. He knew nothing but what the grantor communicated m a conversation and consultation held in relation to the making of the conveyance, which was now assailed as fraudulent. Mr. E. had been re- cently licensed as attorney, and felt that he was entitled to a fee for the directions he gave; but had never received one. The counsel for the grantor objected to his being examined, though his advice had not been given in respect to any pending suit ; nor with express reference to a pros- pective one. The objection was allowed ; and on motion for a new trial, it was denied. The question was debated and decided on the assumption, that the advice had no connection with a present or prospective suit. Shaw, C. J., delivered the opinion of the court. He examined the English cases very fully (A. D. 1831), cited m the 6th ed. of PhiUipps, p. 134 (A. D. 1824), re- peated in the seventh edition at pp. 148, 144, which he approved, and concluded as follows : " On the whole, we are of opinion, that, although this rule of privilege, having the tendency to prevent the fuE disclosure of the truth, ought to be construed strictly; yet still, whether we consider the principle of public policy upon which the rule is founded, or the weight of authority by which its extent and limits are lixed, the rule is not strictly confined to communications made for the purpose of enabling an attorney to conduct a cause in court, but does extend so as to include communications made by one to his legal adviser, whilst engaged and employed in that character, and when the object is fo get his legal advice and opinion as to legal rights and obligations, although the purpose be to correct a defective title, by obtaining a release, to avoid litigation by compromise, to ascertain what facts are necessary to constitute a legal com- pliance with an obligation, and thus avoid 'a forfeiture or claim for damages, or for other legal and proper purposes, not connected with a suit in court." In this case, the well known hmits of the rule in most other respects are noticed by the learned Ch. J. on English authority (12 Pick. 93 to 99), not differing materially from those already pointed out in the text or notes. See also a learned examination of the same head of evidence upon the English and many of the Amw- ican oases, by Parker, J., in Brown v. Payson, 6 N. Hamp. Kep. 444 to 449. To Poster v. Hall, may now be added the still later cases of Bolton v. The Corporation of Liv- erpool, 1 Mylne & Keen, 88; and Greenough v. Gaskell, Id. 98 (A. D. 1833); Moore v. Terrell (same year), 4 Bam. & Adolph. 870). The reporter's note, to Greenough v. Gaskell is thus: " And generally, it seems, that a solicitor cannot be compelled, at the instance of a third person, to disclose matters which have come to his knowledge in the conduct of professional business for a client, even though such business had no reference to legal proceedings, either existing, or in contemplation." In Moore v. Terrell, Parke, J., said, " In Greenough v. Gaskell, the lord chan- cellor consulted with Tindal, 0. J., Lord Lyndhurst, and myself; and we all thought tlie client's privileges extended much beyond communications in respect of a suit." The language of the lord chancellor is also given in a note to Moore v. Terrell. An attorney for A. lending money to B. peruses the abstract of B.'s title. He is not admissible as a witness concerning them. Doe dem. Peter v. Watkins, 3 Bing N. 0. 421. So of anything communicated by a client in respect to the sale or purchase of an estate. Mynn v. JoUfle, 1 Mood. & Rob. 327. And see Ex parte Aitkin, 4 Bam. & Aid. 47 ; and Ex parte Teatman, 4 Dowl. Pr. Caa 309, per Littledale, J. See also Hare on Discovery, oh. 3. In Dooex dem. Shellard v. Harris (5 Car. & Payne, 592), Mr. Jus- tice J. Parke extended it to u, knowledge acquired on an application to an attorney to draw a deed in fraud of creditors, and he refused to make an exception, because the advice might relate to an unlawful transaction, repeating what he said in Moore v. Terrell, as to the decision of the, lord chancellor. He concluded by saymg, " I am of opinion that the privilege applies to all cases SEC. I.] In Professional Confidence. 133 where the client applies to the attorney in a professional capacity ; and an application to draw a deed is, I think, of that description.'' He said, in the course of the trial, that he considered the cases to the contrary, as overruled. He said: " There is a great deal of difficulty in the witness's disclosing whether the conference between him and his client, was for a lawful or unlawful pur- pose, without our being told what it was. It might be that the party asked if a particular thing could legally be done." See also Bowman v. Norton, and Mills, v. Oddy, swpra, which are also substantially that the retainer need not relate to a suit. The consequence is, that where no suit is pending, an attorney may be employed for both par- ties as in conveyances, and, therefore, cannot disclose the secrets of either, without his consent. Doe dem. Peter v. Watkins, 3 Bing. N. 0. 421. See, also, Taylor v. Blacklow, Id. 235 ; Doe ex dem. Stroder v. Seaton, 2 Adolph. & Ellis, V\\. The privilege is that of the party, who may waive it. If the attorney in the cause submit to be examined, his assent, it seems, shall be taken for that of the client. Bishop of Winchester v. Pourner, 2 Tes. sen. 446 ; Maddox v. Maddox, 1 Id. 61, 62. But as we saw in Bowman v. Nor- ton {sv/pra), the assignees of a bankrupt have no power, as such, to waive his privilege. An atlomey making a communication between two parties, is compellable by either to disclose them. Cleeve v. Powell, 1 Mood. & Rob. 228 ; Braughe v. Cradock, Id. 182. A party assignor may waive his privilege, and let in the testimony of his attorney against his (the party's) assignee, as to what the assignor said previous to the assignment. Benjamin v. Coventry, 19 Wend. 353. Whether, under the New York statute, the privUege of concealing knowledge acquired pro- fessionally, as " physician or surgeon, be that of the patient, and waivable by him 7 Quere. Johnson v. Johnson, 14 Wend. 631. Savage, Ch. J., at p. 641, said it was undoubtedly that of the party, not the witness. S. C, 4 Paige, 460, 468, and see S. C, but not S.' P., in 1 Bdw. Ch. Rep. 439. AU the cases seem to agree that the privilege continues after the particular suit is terminated, and extends to causes with which the cUent has no concern. See Parker v. Yates, 1 2 Moore- 620. It extends to the professional advisers of a stranger to the suit. Though if the judge im- properly receive the evidence, it has been held that the party to the cause cannot avail himself of the objection. Yet counsel may argue as to the admissibility at the trial. Rex v. Woodley, 1 Mood. & Rob. 391. Quere ; for the privilege is not allowed out of regard to the interests of the parties. But see Doe dem. Peter v. Watkins, 3 Bing. N. C. 421. In respect to the production of papers, the privilege of the attorney seems to be co-extensive with that of the chent ; but not more so. Post, note 69. But he is not bound to produce a case made for his client, a stranger, and submitted to counsel. Rex v. Woodley, 1 Mood. & Rob. 390. The court will direct at the trial, aa to the attorney's privileges. Nixon v. Mayoh, 1 Mood. & Rob. 16. As to incompetency or privilege, on the ground of policy, from disclosing knowledge acquired in the course of state, judicial, or other ofScial duty, see notes to chapter on the examination of witnesses. A senator was held admissible to disclose facts which transpired in secret session, after he had applied to have the injunction of secrecy removed, and that was refused. Law v. Scott, 5 Harr. & John. 438. The court refused a subpcena duces tecum to compel a state governor to produce a paper filed with him, containing charges alleged to be libelous. Gray v. Pentland, 2 Serg. & Rawle, 23, commented on and approved in Youter v. Sanno, 6 Watts, 166. The county attorney is inadmissible as a witness to disclose the proceedings before the grand jury. McLellan v. Richardson, 1 Shepl. 82, 86. The court say the object of the grand juror's oath of secrecy, is to prevent escapes, and promote freedom of deliberation, by preventing timid jurors being over- awed. In another case, a grand juror was received to prove who was the prosecutor. Huston, J., argues that the oath, " The commonwealth's counsel, your feUows and your own, you shall keep secret," restrains merely from all voluntary disclosure, because that may affect the prosecution, or jurors, or witnesses, injuriously; but not disclosures on oath to promote justice. Huidekoper •v. Cotton, 3 Watts, 56, 57, 58. He cites Wheat. Selw. 815, as in point. And so it is. See that page of the 2d Am. ed. The case is Sykes v. Dunbar. Communications, though made to ofBcial persona, are not privileged, where they are not made in the discharge of any public duty ; as a letter written by a private individual to the secretary of the postmaster-general, complaining of the conduct of the guard of the mail. Blake v. Pilfleld, 1 Mood. & Bob. 198. 134 Of the Rule as to CommunicaUons [CH. vii. fhe expediency of this rule must depend, not on the impropriety of violating the confidence reposed, but on a consideration that the collateral inconvenience, which would ensue if no such confidence were reposed, would preponderate over the direct mischief produced by a chance of the feilure of justice, resulting from the exclusion of evidence. If, in the cases within the operation of the rule, the only confidence reposed were a confession of guilt or dishone'sty, the rule would be obviously detrimental to the interests of justice ; but it is conceived that, in a multitude of in- stances, a person possessed of just rights would be materially impeded in vindicating them, if every communication, made to his professional advi- ser, might be used against him ; if such were the law, it would be neces- sary, in self-defence, to accompany all communications made to a pro- fessional adviser, with a statement of the several circumstances and expla- nations, which, however unnecessary for the purpose of the communica- tion, would be requisite to prevent it from being unfairly used. And it is to be observed, that the evidence in question, being generally a species of hearsay evidence, is open to much objection upon that ground, especially as it would generally be delivered either by a very favorable or a very- hostile witness.(l) Privflege is that of client. The privilege is that of the client and not of the professional adviser; an attorney will not be allowed, against his client's will, to disclose matters of professional confidence, though himself willing to do so.(2) The client, however, may waive his privilege ;(3) in which case the court will compel When the purposes of puHio justice require that certain oTidenoe should be given, which the court, from a regard to decency, would be disposed to suppress (whether upon iudictment for crimes, or on questions of private right or private wrong), the evidence, however inconvenient, must be disclosed. It has, therefore, been considered that Mr. Justice Burnet was wrong in re- fusing to try an action of defamation, in which a woman charged a man with proclaiming to the Tvorld that she had a secret defect in her person, and the defendant, by plea, justified that it was trae that she had such defect. Per Lord Mansfield, in Da Costar v. Jones, Cowp. 133. But the courts have frequently refused to try wagers, on the ground of their leading to the admission of indecent evidence, or as unnecessarily injuring the feelings of third parties. Id. ; Dirchbum v. Goldsmith, 4 Camp. 152. Semhle. An arbitrator is privileged from disclosure out of protection to his situation. Note to Johnson v. Durant, 4 Carr. & Payne, 32'7, cited Ellis v. Saltau. A petit juror may, of course, be examined to any material fact, though it come to his knowl- edge in the course of duty as juror. Dunbar v. Parks, 2 Tyl. 217. And in crim. con. the execu- tor of the defendant's uncle was compelled to answer what amount of property the defendant had acquired by his death, this being material to the question of damages. Abbott, C. J., said : " I do not say that an executor is bound to answer all questions ; but 1 do not see why you should not answer this." Peter v. Hancock, 1 Carr. & Payne, 315. (1) See the remarks of Lord Brougham, C, in Greenough v. Gaskell, 1 Myl. & K. 103. See also Bolton v. Liverpool (Corporation), Id. 94, 95. (2) B. N, P. 284 ; Wilson v. Rastall, 4 T. R. 159 ; Sandford v. Remington, 2 Tes. jun. 189 ; by Lord Lyndhurst, C, in Herring v. Olobery, 1 Phill. 96. (3) Merle v. More, R. & M. 390; Baillie's Case, 21 How. St. Tr. 341, 358, 408. SEC. I.] In Professional Confidence. 135 the legal adviser to discover what he knows.(l) But he is not to be con- sidered as waiving it, by calling his attorney as a witness, unless he ex- amines him as to confidential communications.(2) "With respect to the character and situation of the persons receiving the communications, it is to be observed that this professional privilege ex- tends to the three cases of counsel, attorney, and solicitor.(3) A person who acts as interpreter(4) or agent,(5) as the organ of com- munication between an attorney and his client, stands precisely in the same situation as the attorney himself; he is considered as the organ of the attorney, and is under the same conditions of secresy. An attorney's clerk(6) cannot be called to prove a confidential communication. A bar- rister's clerk cannot be called to prove the date of his master's retainer.(7) It seems also that the privilege extends to the personal representative of a professional adviser.(8) But a person by profession an attorney, if he be not so employed in the particular business which is the subject of inquiry (as, where he is under- sheriff at the time), is not precluded from giving evidence, though he may have been consulted confidentially .(9) So a communication with an at- (1) By North, C. J., in Lea v. Wheatley, cited 20 How. St. Tr. 5'74, u. Note 63. — But whether, where the attorney is retained by two persons, he can he absolved by one, so as to disclose information to the prejudice of the other? Quere. Devoy's Lessee y. Burke, 2 Fox k Smith, 191. This privilege is personal to the client, and. if he consent, it does not lie with a third person to object Merle v. More, 2 Carr. & Payne, 275 ; S. C, cited in the text from By. & Mood. The subject of waiver was much discussed in the case before the House of Lords concerning the abuses in Greenwich Hospital, and in three mstances, the clients, after QhjjBction by then- former counsel, were allowed to waive their privilege. Howell's State Trials, Vol 21, pp. 34-1, 358, 408, and see note to Merle v. More, Ry. & Mood. 391. The consent of one who acted as counsel with the attorney on a former cause, where the attorney obtained his knowledge, without the client's consent, will not warrant the attorney's disclosing such Isuowl- edge as a witness. Francis and Jones' Case, 1 C. H. Rec. 121. (2) Waidron v. Ward, Styl. 449 ; Vaillant v. Dodemeadj 2 Atk. 524. See also Bate v. Kinsey, \ G,, M. & R. 38. (3) Wilson v. Rastall, 4 T. R. 159 ; "Waidron v. Ward, Styl. 449. (4) Du Barre v. Livette, Peake, '78, recognized 4 T. R. 756. Note 64. — All the reasons which apply to the attorney, apply to an interpreter between the client and attorney, of whom he is merely the organ. Andrews v. Solomon, 1 Pet. 0. 0. R. 356. Et vide Parker v. Carter, 4 Munf. R. 2'?3 ; and Jackson d. Haverly v. French, 3 "Wend. R. 337. (5) Parkins v. Hawkshaw, 2 Staik. R. 239 ; Bunbury v. Bunbury, 2 Beav. 173 | "Walker v. Wildman, 6 Madd. 47. {%) Taylor v. Forster, 2 C. & P. 195 ;, Bowman v. Norton, 5 C. & P. 177 ; Mills v. Oddy, 6 0. & P. 731 ; R. V. Upper Boddington, 8 D. & R. 732. (7) Foote V. Hayne, R. & M. 165 ; S. C, 1 C. & P. 545. (8) See, Fenwick v. Reed, 1 Mer. 114. (9> "Wilson V. Rastall, 4 T. R. 753. See Hill v. Bffiott, 5 C. & P. 436 ; R. v. Brewer, 6 C. & P. 363. Note 66.— Annesly v. The Earl of Anglesea, Macnally, 241. Thus, where the party consulted the attorney confidentially as a friend, but not in the character of an attorney or counsel for him, it was held not to come within the rule. Hoffman v. Smith, 1 Cain. Rep. 157, 159. So where the fact communicated had no relation to the action. Riggs v. Denniston, 3 John. Oas. 198. So where 136 Of the Rule as to Gomrnunicdtions [CH. VII, torney's clerk, who is not acting in that capacity on behalf of his principal, is not privileged.(l) And it has been ruled, that a person who was con- sulted confidentially, on the supposition of his being an attorney, when, in fact, he was not one, is compellable to answer.(2) Medical and other advisers. The professional privilege is confined to the cases above enumerated, of counsel, attorney, and solicitor.(3) There are, indeed, cases, said Buller, J., in the case of Wilson v. Eastall,(4) to which it is much to be lamented that the law of privilege is not extended: those in which medical persons are obliged to declare the information which they have acquired by at- tending in their professional characters.(5) This point was much con- sidered in the Duchess of Kingston's Gase,(6) where Sir C. Hawkins, who had attended the duchess as a medical man, was compelled to disclose what had been committed to him in confidence.(7) Confidential com- munications to a friend are not privileged : in cases criminal, as well as civil, he is compellable, when required by courts of justice, to disclose what has been imparted to him in confidence. (8) Such evidence was re- ceived against the prisoner in Dr. Eatclifie's Case,(9) and in Lord Eus- sell's Case.(lO) the confidential communication to the attorney, in respect to a cause of the client, was repeated by him to the same attorney, but after the relation of attorney and client had ceased. Tordan v. Hess, 13 John Eep. 492, 494. Otherwise if it appear to have been drawn out by artifice, with the view of being made evidence. Id. D. delivered a note to his attorney, indorsed by N. & H., against whom the attorney obtained separate judgments. N. paid the judgment against him, and requested the attorney to collect that against H,, for his (N.'s) benefit. It afterwards becoming material, on a proceeding against TS., to have the note in evidence, it was held that the attorney must produce it on a subpoena diKes tecum, notwithstanding N.'s objection ; for the witness did not receive the note as N.'s, but as D.'s attorney. Neafle's Case, 4 C. H. Rea 168, before Golden, Mayor. (1) Doe d. Pritchard v. Jauncey, 8 C. & P. 99. (2) Fountain v. Toung, 6 Bsp. 113. The Witness 'was clerk of the papers in Newgate, and had formerly been clerk to an attorney. In the Jurist for ISSt, the propriety of this decision is doubted. ' And it may be observed, that if the principle of the case were carried out, it might extend to the case of a communication made to an attorney who had omitted to take out his certificate. See infra, pp. 138, 143. (3) 4 T. R. '758 ; Vaillant v. Dodemead, 2 Atk. 524 ; 2 Swanst. 221. It was formerly thought that a trustee was privileged. B. N. P. 184. (4) 4 T. R. '?59. See also R. v. Gibbous, 1 C. & P. 91 ; R. v. Sparkes, cited in Du Barre v. LIvette, Peake, 11. (5) See also the remarks of Lord Brougham, 0., in Greenough v. Gaskell, 1 Myl. & K. 103. See note 66. (6) 20 How. St. Tr. 613, 614. (t) By the Revised Statutes of New York (Vol. 2, p. 406, § 1i), and of Missouri (p. 623, § 11), physicians and surgeons are not allowed to disclose any information they may have acquired in attending a patient professionally, where such information was necessary to enable them to do any professional act for the patient. Greenl. Evid. 361, note 4, (3d edit.) (8) See Lord Kenyon, in Wilson v. RastaB, 4 T. E. ISS. ' (9) 18 How. St. Tr. 428. (10) 9 How. St. Tr. 699. SEC. I.] In Professional Confidence. 137 In an early case,(l) where the defendant, in an action of debt on a hond, pleaded the statute against buying and selling of offices, and called a wit- ness to show on what occasion the bond was given, Lord Holt is said to have refused his evidence, because it appeared, that he was privately in- trusted to mnke the bargain, and to keep it secret. But the principle and authority of this case must be considered as having been overruled by the case of Wilson v. Rastall, and the later decisions on this subject. The bankers of one of the parties in a cause are bound to answer as to the amount of the balance of such party on a particular day.(2) And a steward is not, like the legal adviser of a party, protected by his relative situation from the disclosure of his knowledge of the affairs of his em- ploj-^er, or of the existence and contents of instruments, with which he has become acquainted in consequence of his employment.(3) (1) B. N. p. 284. (2) Lloyd V. Freshfleld, 2 0. & P. 329. (3) Falmouth (Earl of) v. Mosa, 11 Price, 455. See also Vaillant v. Dodemead, 2 Atk. 524; by Buller, J., 4 T. R 156. Note 66. — The head or confidential clerk in a mercantile establishment is not privileged from being examined as a witness in respect to the affairs of his principal. Corps v. Robinson, 2 "Wash. C. C. Rep. 388. Nor an attorney's clerk in respect to the private and personal affairs of the latter, though his articles bind bim_ to keep his master's secrets. "Webb v. Smith, 1 Carr. & Payne, SST. So a confidential agent or factor must give evidence of matters confidentially com- municated to him (Holmes v. Comeggs, 1 Dallas, 439) ; and a banker of one of the parties is bound to disclose what such party's balance was on a given day. Lloyd v. Freshfield, 2 Carr. & Payne, 325. The privilege does not extend to the clerk or student of the attorney or counsel, and he is bound to testify to facts of which he acquired a knowledge while in the office of the attorney, though such as the attorney himself could not disclose. Andrews v. Solomon, 1 Pet. 0. C. Rep. 356. But in Power v. Kent (1 Cowen'a Rep. 172), it was decided that the clerk represents the attorney, during his absence, as to all the ordinary proceedings of the office, and has power to bind the attorney by waiving the usual formaUties of practice, as entering a rule to amend. It would seem to follow that the clerk should be under the same restrictions in regard to the business of the attorney as the attorney himself; and in Jackson ex dem. Haverly v. French (3 Wend. 337), the opinion was intimated by the court that the rule was applicable to the clerk as well as to the attorney. In a late English case, it was ruled at Nisi Prius, by Best, J., that the privilege of not disclosing confidential communications extends to the clerk of the attorney employed in a cause, on the ground that attorneys are under the necessity of employing clerks, before whom such communications must be made. Taylor v. Forster, 2 Carr. & Payne, 1 95. And see Foote v. Hayne, mfra. And in a still later case, it was held that the clerk of an attorney, who had been employed by a mortgagee to make an abstract of the mortgage deeds, was not a compe- tent witness to prove the contents of the deeds (the mortgagee having refused to produce them)i Mr. Justice Bayley saying that the clerk stood precisely in the same situation as his master. The King v. The Inh. of Upper Boddington, 8 Dqwl. & Ry. '726. Otherwise if the deeds form no part of the client's title. Doe dem. Courtail v. Thomas, 9 Barn. & Cress. 288. The privilege does not extend to other professional men. Dixon v. Parmelee, 2 Verm. Rep. 185. A physician is bound to testify to facts which were communicated in confidence to him in his professional capacity. Sherman v. Sherman, 1 Root, 486. So confessions made to a Protes- tant divine will be received in evidence. Smith's Case, 2 N. T. C. H. Rec. 11 ; Oilman's Casei Carr. Suppl. 61, also cited in Broad y. Pitt, 3 Carr. & Payne, 518, S. P. So penitential confes- sions, made in confidence to members of the same church of which the prisoner is a member, are not privileged. Commonwealth v. Drake, 15 Mass. Rep. 161. But it was held by Clinton, 138 Of the Bule as to Communications [CH. VII. A confession to a clergyman,(l) or to a popish priest,(2) is not privileged. But in one case, (3) Best, C. J., said that he would never compel a clergy- man to disclose communications made to him by a prisoner ; but if he chose to disclose them, he should receive them in evidence.(4) Bentham, Mayor, in the New York Court of General Sessions, that confessions made to a Roman Catholic clergyman in confidence, and whose duty it is to receive auricular confessions according to the canons of that church, wUl not be received in evidence. Smith's Case, cited supra, and note to that case, 2 N. T. C. H. Rec. 80; Butler v. Moore, Macnally, 253, contra. Whether, where a clerk or servant is bound by articles to keep his master's secrets and is called on to disclose a communication prejudicial to his master, or a matter expressly confided to him as a secret, he will be holden to testify ? Quere. The inclination of Littledale, J., seemed to be that he would not, in Webb v. Smith (1 Carr. & Payne, 337). In Foot v. Hayne (Id. 545), Scarlett complained that his clerk was compelled to attend on a subpoena duces tecum to produce his retainer book, in order to fix the time of his retainer ; and Abbott, C. J., seems to have expressed himself very decidedly that the counsel's clerk should not be received to prove such a communication between the counsel and his client. And vid. Eicke v. Nokes, 1 Mood. 4; Malk. 303. And now, by statute in New York, no minister of the gospel, or priest of any denomination, is allowed to disclose any communication made to him, in his professional character, in the course of discipline enjoined by the rules or practice of his denomination. 2 R. S. 406, §^72. And no practitioner of physic or surgery, duly licensed, shall be allowed to disclose ajiy informatioa which he may have acquired in attending any patient in a professional character, if the inforiBation was necessary to enable him to prescribe for his patient as a physician, or do any act as a sur- geon. Id. § 73. A physician consulted by the defendant in an action on the ease for seduction, as to the means of producing am abortion, is not privileged from testifying, by the New York statute, forbidding a disclosure of information received by a physician to enable him to prescribe for a patient- Hewitt V. Prime, 21 Wend. R. 79. Communications made^ to a confidential friend in confidence are not privileged ; and such Mend is bound to disclose them when called upon as a witness, although made under an injunction and promise of seoresy. MiUs v. Griswold, 1 Root, 383 ; Calkins v. Lee, 2 Root, 363. This was once made a grave question. Bulstrod v. Letchmere, 2 Preem. 5. So a person in no way con- nected with the attorney, who is present at a communication made to the attorney by the client, is bound to testify to such communication. Jackson ex dem. Haverly v. French, 3 Wend. Rep. 337 ; Gainsford v. Grammar, 2 Campb. 10, S. P. But the same reasons which apply to an attorney apply equally to an interjMreter between Um client and attorney, of whom he is merely the organ. Andrews v. Solomon, 1 Pet. 0. C. Rep. 356 ; Parker v. Carter, 4 Munf. 273 ; Jackson ex dem. Haverly v. French, 2 Wend. Rep, 337. In New Hampshire, the privilege is not confined to communications with professional men, but extends to any person employed to manage a cause as counsel Bean v. Quimby, 6 N- H. Rep. 94. The court put this on the construction of a local statute, authorizing a man to manage his cause by agent, whether he be licensed or not. Id. 97. (A different rule prevails in "Vermont, whore it is held that oommcmioations made to a person who Is not an attorney, nor clerk to an attorney, but is pursuing the study of the law, are not privileged, though made in reference to the management of a suit. Hollhan v. Kimball, 22 Tt. (7 Washb.) 555. So in Massachusetts, if a person goes to the office of an attorney to obtain a,dvice and consults with a student at law^ his statements to him are not privileged. Barnes v. Harris, 7 Cush. 576.) (1) R. V. Sparkes, cited in Du Barre v. Livette, Peake N. P. 77 ; R. v. QUham, R. & M. 186. (2) Butler v. Moore, Macnally, 253. (S) Broad v. Pitt, 3 C. P. 519; S. C, Mo. & M. 234. (4) By the laws of New York (Vol. 2^ p. 406, § 73), and of Missouri (p. 623, § 16), no minister of the gospel or priest of any denomination is allowed to disclose any confessions made to him SEC. I.] In Professional Confidence. 139 who is well known as the nncompromising advocate for the abolition of nearly all the rules of English law relating to the exclusion of evidence, makes an exception with regard to confessions made to a Catholic priest, which, he contends, the priest ought not to be compelled to disclose, upon the ground that confession, in the Koman Catholic church, is a religious duty, and that to compel the disclosure, by means of punishment, would be in effect to punish the party for religious opinions. He gives other cogent reasons for the propriety of excluding such testimony. (1) In a case at Nisi Prius, where a clerk to the commissioners of the prop- erty tax was called to prove the defendant a collector, and refused to give evidence, on the ground of his having taken an oath of ofiS.ce not to disclose what he should learn as clerk, respecting the property tax, except with the consent of the commissioners, or by force of an act of Parliament, the court held that this oath would not exempt the witness, and that it must be construed as containing an implied exception of the evidence which he might be called to give in courts of justice, in obedience to the writ of sithpcena.{2) And an articled clerk to an attorney, who is bound by his articles to keep his master's secrets, is at liberty to give in evidence statements of his master not made under a charge of secresy, nor affecting the interests of the master's client, though the disclosure may tend to sup-- port a civil action against the ■master.(3) It appears that communications, made to a merely licensed conveyancer, would not be privileged ;(4) but they would be if made to an attorney in that capacity,(5) or in the capacity of a scrivener to raise money, (6) pro- vided the attorney was consulted as the party's own professional adviser.(7) When privilege commences and ends. With respect to the nature of the communications which are privileged, in his professional character, in the course of discipline enjoined by the rules or practice of such denomination. GreenL Evid. 361, n. 3. (1) See Rationale of Judicial Evidence, Bk. 9, pt. 2, ch. 6, and the remarks by the editor (Mr. John Mill), appended to Bk. 9, pt. 3, ch. 5, commenting upon the misrepresentations of Bentham's doctrine by a writer in the Edinburgh Review. (2) Lee q. t. v. Birrel, 3 Oampb. 337. (3) Webb V. Smith, 1 0. & P. 337 ; S. C, By. & M. 106. (4) By Parke, B., in Turquand v. Knight, 2 M. & "W. 100. Sir D. Evans, in his edition of Pothier, suggested that it followed from Wilson v. Raatall, that communications to a oonveyattoer were not privileged, though he might happen to be a counsel or an attorney. (5) Cromack v. Heathoote, 2 B. & B. 4. (6) By Lord Abmger, in Turquand v. Knight, 2 M. & W. 100. See also Harvey v. Claytoa 221, u. ; Anon., Skinn. 404. (7) See R. v. Farley, 2 0. & Kir. 313, 318, post. (Where an attorney is employed professionally to draw an instrument, the instructions given to him for that purpose are under the seal of professional confidence. The Bank of Utica v Mersereau, 3 Barb. Ch. 528. He may be called upon to prove the existence of a paper, and that it is in his possession, but cannot be compelled to produce it, or prove its contents, it being intrusted to him by his client in his professional character. CbVMiey v. Tannahill, 1 Hill R. 33 • Kellogg V. Kellogg, 6 Barb. 116.) 140 Ofihe Rule a? to Communications [OH. Vll. the cases may be divided into those which have reference to some suit, and those in which no suit was in contemplation. It was observed by Lord Ellenborough, C. J., in Gainsford v. Grammar,(l) that it had been established in Cobden v. Kendrick,(2) and Wilson v. Eastall,(3) that communications by a party to a witness, if not made in conficience (whether prior or subsequent to the relation of client and at- torney subsisting between them), are not privileged ; but that this confi- dential relation might be formed before the commencement of any suit. An attorney may be retained and confided in as such before the com- mencement of any suit, and, in such a case, he is not bound to disclose whatever has been revealed to him previous to the suing out of the writ. In Clark v. Clark,(4) Lord Tenterden, C. J., observed, " Suppose a party to consult his attorney whether or no he should bring or resist an action, (1) 2 Campb. 10. (2) 4 T. R. 431. (3) Ibid. '753, and see Cuts v. Pickering, 1 Ventr. 191. (4) 1 M. & Eo. 5. In this case, Lord Tenterden says, that the doctrine reported to have heen laid down by him in "Williams v. Mudie (Ry. & M. 34; S. C, 1 C. * P. 158), was too narrow, and it would seem that a formal retainer is not essential. Note 67. — Kent, J., in Riggs v. Denniston (3 John. Cas. 198, 203), says that, to be privileged, the communications must be made as instructions for conducting the cause ; not as mere gratui- tous and irrelevant remarks. And communications, though they do not respect a suit, if they are made with a view to professional assistance by the client, to the attorney, counsel or solicitor, are protected. Walker v. Wildman, 6 Madd. 47. A licensed counsel or attorney, employed as such to draw a deed, must be considered as acting in the line of his profession, and bound to conceal the facts disclosed by the person who employs him. Parker V. Carter, 4 Munf. Rep. 273. Whether the evidence of a person employed by both persons as attorney or scrivener, to write a bond for a fraudulent purpose, is admissible to prove the fraud ? Qxiere. Clay v. Williams, 2 Mun£ Rep. 105. Communications made to aa attorney employed to foreclose a mortgage by advertisement and sale under the statute of New York, concerning mortgages, such communications having relation to the busihess of the foreclosure, and considered as confidential communications between attor- ney and client, and are entitled to the protection of that relation. Wilson v. Troup, 7 John. Ch. Rep. 25; S. 0. afBrmed in the Court of Errors, 2 Cowen's Rep. 195. It was held, in a late case in England, that an attorney who had been employed by a mortga- gee to make an abstract of the mortgage deeds, could not be at liberty to produce them, or the abstract, or give evidence of their contents. The King v. The Inhabitants of Upper Boddington, 8 Dowl. & Ry. 726. Otherwise, if they do not relate to hia client's title. Doe dem. Courtail v. Thomas, 9 Barn. A Cress. 288. In New York, the farthest our courts have gone, is to protect communications made in the course of a summary foreclosure. Wilson v. Troup, mpi-a. Virginia goes even to the draft of a common deed. Parker v. Carter, supra. Vermont seems to confine herself to a suit pending or in contemplation. Dixon v. Parmedee, post, note 68. While Ireland extends the rule to a consultation upon the legal effect of a newspaper article. (In order to render communications from a client privileged, they must come directly from the client, orally or by papers given to him. And the privilege in some cases terminates with the death of the client. Crosby v. Berger, 4 Edw. Ch. 254. Quere. Whether the seal of confidence can ever be removed except by the act of the party, or his implied consent? Chew v. Farmers' Bank of Md., 2 Md. Ch. Deois. 231.) See notes 68 and 69, SEC. I.] In Professional Confdence'. 141 it could not be doubted that such a communication would be privileged, though no suit was pending at the time :" and he held, that where a matter was in dispute and controversy, although no cause was in exist- ence with respect to it, the communication was privileged. But, although a, suit be pending or recently terminated, communica- tions made to a counsel or attorney by his client are not privileged if they are not made to the person in his capacity of counsel ' or attorney, or for the purposes of the suit. Thus, in the great case of Annesly v. Lord Anglesea,(l) where the question of privilege was very fully discussed, the attorney of a prosecutor of an indictment was allowed to state what his client had observed to him pending the proceedings on the indictment, viz : that he would give a large sum of money to have the prisoner hanged. Where a person (who had brought an action on a promissory note^ which was afterwards compromised by the defendant) had informed the attorney, after the compromise and in the interval between the time when a warrant of attorney was given and the time when the money was to become due, that there never had been any consideration for the note, the Court of King's Bench held that the attorney was compellable to disclose that circumstance in an action brought to recover back the money. " The communication," said Lord Kenyon, C. J., " was not here made in con- templation of a suit; on the contrary, the purpose in view had been already obtained ; and what was said by the client was from exultation, in having before deceived his attorney as well as his adversary."(2) So, where an attorney brought an action for his professional services,(3) and the defence was that he had been employed by another party, and not by the plaintiff, it was held that the plaintiff's agent, an attorney, might be asked whether the plaintiff had not said, upon introducing that party to him, that he (the plaintiff) had been employed by that party. It was said by the court : " This is in no respect a privileged communica- tion. It is something said by the plaintiff to his agent on introducing an individual who was to be the plaintiff in another action. The privilege does not attach to everything which the client says to his attorney ; the test is, whether the communication is necessary for the purpose of carry- ing on the proceeding in which the attorney is employed ; if it is neces- sary, it becomes privileged." The privilege of professional confidence is not, however, limited to cases in which a suit is in contemplation. This is manifest from the authorities which will be presently noticed, in which the attorneys of par- ties not connected with the suit have not been allowed at the trial to reveal matters of which they have acquired knowledge through the pro- (1) It Ho-w. St. Tr. 1221. (2) Cobden v. Kendrick, 4 T. R. 432. (3) GUlard v. Batea, 6 M. & W. 64T. 142 Of the Rule, as to Communications [CH. VII. fessional confidence of tlieir clients. But, as between ih.Q. parties to a suit, it is only lately that the law has been relieved from much perplexity in those cases where professional confidence has existed unconnected with the immediate suit. Upon a consultation on this subject between Brougham, C, Tindal, C. J., Lyndhurst, C. B., and Parke, J., they con- sidered that the privilege was not confined to cases where the communica- tion related to the bringing or defending an action.(l) It seems that the privilege extends to all cases where a communication is made to an attorney or other legal adviser in his professional capac- ity ;(2) and that the rule is correlative with that which governs the sum- mary jurisdiction of the courts over attorneys.(3) That rule has been (1) areenough v. Gaskell, 1 M. & K. 98. And see 4 B. & Ad. 876 ; 5 C. & P. 593. See also Bolton V. Liverpool (Corporation), 1 M. & K. 88 ; Moore v. Terrell, 4 B. & Ad. 810 ; Doe d. Shel- lard V. Harris, 5 C. & P. 594. The authorities for restricting the privilege were Williams v. Mudie, By. & M. 34; S. C, 1 0. & P. 158 ; Broad v. Pitt, M. & M. 233 ; S. 0., 3 0. & P. 518 ; Duffin V. Smith, Peake, 108 ; 'Wadsvrorth t. Hamshaw, 2 B. & B. 5, n. (2) Doe d. Shellard v. Harris, 5 C. & P. 593 ; Walker v. Wildman, 6 Madd. 41 ; Doe d. Peter ■V. Watkins, 3 Bing. P. C. 421 ; hy Lord Brougham, C, in Greenough v. Gaskell, 1 M. & K. 101, 102. (3) By Alderson, J., in Turquand v. Knight, 2 M. & W. 101. Note 68. — The secrets of his client, which an attorney or counselor is bound to keep, are the communications and instructions of his client relative to the management or defence of hia cause, and not any extraneous or impertinent communications. Dixon v. Parmelee, 2 Verm. Rep. 185. Thus, that the client had concealed himself to avoid being served with process, was held not to be a privileged communication. Eiggs v. Denniston, 3 John. Cas., 198. An attorney may be called to testify to a collateral fact within his own knowledge, or to a fact which he might know without its being intrusted to him by hia client. Vid. Reeves v. Burton, 6 Mart. Lou. Eep. (N. S.) 283, 284. As that a bond was lodged with his client by way of indem- nity, or that he expressed himself satisfied with a certain security. Heister v. Davis, 3 Teates, 4. So where, without any communication from his client on that subject, he acquires a knowledge of his client's handwriting, he maybe called to testify to its identity (Johnson v. Daverne, 19 John. Rep. 134), though it be by seeing him sign a ball bond in the cause. Hurd v . Moring, 1 Carr. & Payne, 545. See note 12. So he may be examined as to a particular paper being received from his client (Bioke v. Nokes, 1 Mood. & Malk. 303), and whether a note, put into his hands for collection, was indorsed or not. Baker v. Arnold, 1 Gaines' Rep. 258. So an attorney or counselor is competent to prove that an administrator, for whom he acts as attorney or coun- sel, directed an exhibit to be filed in the Court of Chancery, in which he acknowledged a debt as due by the intestate, which was adjudged to take the case out of the Statute of Limitations. Forbes v. Perrie's Adm'r, 1 Har. & John. 109. So that he has a paper in court relating to the cause, in order that a notice to produce it immediately may be sufficient. Ehoades' Lessee v. SeUn, 4 Wash. C. C. Rep. 115, 118 ; Post, notes 69, 11. It is held that if, after the relation of attorney and client has ceased, the latter voluntarily repeat what he had communicated while the relation existed, the attorney is not privileged from disclosing it. Tordan v. Hess, 13 John. Rep. 492. In Massachusetts, it has been ruled by Putnam, J., that the attorney for the commonwealth could not be called upon to testify to w'hat passed in the grand jury's room. The Commonwealth V. Tilden, Feb. 1828, Norfolk county. The counsel of F. gave as such counsel a notice to B. of a deed. In an action by D. against P., this notice being material to P.'s defence ; held, that the counsel was bound to swear to it as a witness, though the act was in the line of his profession. The court seemed to consider this act not privileged in its own character, and thijy confine the privilege to communications made SEC. I.J In Professional Confidence. 143 tlius laid down : " Where an attorney is employed in a matter -wholly unconnected with his professional character, the court will not interfere dn a summary way to compel him to execute faithfully the trust reposed in him. But when the employment is so connected with his professional character as to afford a presumption that his character formed the ground intermediate the retainer and the termination of the suit, citing 4 T. E. 431 ; to facts delivered from the information of the client, citing 7 East, 357 ; and as to direotiona in the course of a suit, though given by the attorney, if privileged in any case, yet being such as any common person of ordinary prudence would give, they hold that they would not come vidthin the rule, citing 9 Com. Law Eep. 233, and BuH. N. P. 284. Dixon v. Parmelee, 2 Term. Rep. 185, 188, 189. They remark that where an attorney is retained generally, and a conversation is had on a subject which afterwards gives rise to a suit, the attorney is bound to disclose it, there being no suit in contemplation when the conversation was had ; citing for this, Annesly v. The Earl of Anglesea, Macnally, 241. Vid. 2 Term. Rep. 180. So counsel was held to answer as to a proposition of compromise made by him in behalf of his debtor to his creditors, aa not being confidential in its nature, but published to the creditors. M'Tavish v. Denning, Cor. Spencer, J., Anth. N. P. Rep. 113. Tet, if confidential, the communication would have been privileged, whether made in respect to a suit commenced or to be commenced. Id. On trial of an indictment for a libel against the Lord Lieutenant of Ireland, E. W. swore that the traverser asked him professionally whether it was safe to pvilish a certain paper. The communication did not in any manner relate to any cause pending or in contemplation. On R. W. being asked aa to the contents of the paper, held that the communication was privileged, as the traverser was seeking advice rather how to avoid than to commit a crime. The communication, to be privileged, need not necessarily concern a cause. Should one confide to counsel a treasonable design, and wish to know how he might execute it so as to escape punishment, senibk, as concealment would be a misprision, the oommunication would not be privileged ; but if a man meditates an act which, exceeding certain limits, would become criminal, and confined within certain bounds, would be perfectly justifiable, the person asking advice must be considered as seeking how he may avoid, and not how he may commit a crime ; and such a communication ia privileged. Rex v. Haydn, 2 Fox & Smith, 379. But see cases contra, ante, of the text, in note, that the communication must relate to a suit com- menced or in contemplatioa See note 67. Counsel may be examined aa to the mere fact of being retained, but not as to the capacity in which the client retained him. Thus, in an action of trespass for mesne profits, the plaintiffs had recovered possession of the premises in an eject- ment, in which 0. had obtained leave to be made defendant as landlord of the premises. At the trial of the present suit, the plaintiff introduced H, &, D., and asked them whether they were retained by the present defendant to conduct the ejectment suit for his benefit, aa land- lord of the premises. Held, that the counsel might answer as to the mere fact of retainer, but not whether the retainer was for the benefit of the defendant, as landlord of the premises, as the answer would involve a disclosure of the nature and extent of the title and claim set up by the defendant to the premises, for the purpose of conductmg the drfence of the suit. Cliirae v. Reiu- ioker, 11 Wheat. 280. See note 71. An attorney or his clerk cannot be compelled to testify on the trial in respect to the time when he was retained. Poote v. Hayne, 1 Carr. & Payne, 545. But he may as to the person who retained him. See notea 67, 71, 73. (Privileged communications include aU statements and writings made or given by a client to-his attorney or counselor for the purpose of obtaining professional advice or assistance on the subject of hia rights or liabilities. Wetherbee v. Ezekiel, 25 Vt. 47 ; Parkhurst v. McGraw, 24 Miss. 134 ; Swift V. Perry, 13 Geo. 138 ; Miller v. Weeks, 22 Penn. (10 Harris) 89. Communications made to an attorney as a friend are not privileged. Galtra v. Waloott, 14 111. 89. Nor are communi- cations made by a client to hia attorney privileged, unless the latter lis acting aa such in the matter to which the communication relates. Brandon v. Gowing, 7 Rich. (S. 0.) 459.) 144 Of tlie Rule as to Communications [CH. vii. of his employment by the client, there the court will exercise this jurisdiction.(l) A communication made to a solicitor, if confidential, is privileged, in whatever form it is made. If it would be privileged when communicated in words, spoken or written, it will be privileged equally when conveyed by means of sight instead of words. Thus, an attorney cannot give evi- dence as to the fact of the destruction of an instrument which he has been admitted in confidence to see destroyed.(2) It has been held that communications made between a client and his attorney, respecting the sale and purchase of estates, are privileged, although no suit be either existing or expected.(3) And where instruc- tions had been given to an attorney for drawing a deed, which the attor- ney refused to draw, and the deed was drawn by another person — ^the validity of the deed being afterwards questioned on the ground of fraud, in an action against the sheriff, in which the attorney first applied to was not employed— the Court of Common Pleas refused a rule nisitoic a new trial, on the ground that the evidence of the attorney, as to the instruc- tions he had received for drawing the deed, had been rejected. (4) An attorney will not be allowed to make a statement, derived from a knowl- edge of his client's title, that his client has no power to grant freehold leases.(5) In an action of trover for a lease, brought by the assignees of a bank- rupt, it was pleaded that before the bankruptcy the bankrupt deposited the lease with the defendant as a collateral security. At the trial the plaintiffs endeavored to show that the lease was deposited after an act of bankruptcy, and they proposed to ask a witness, who had been the attor- ney for the bankrupt after the act of bankruptcy, and who had been (1) Ex parte Aitken, 4 B. & A. 49. See also, Ex parte Teatman, 4 Dowl. P. C. 309. (2) Robson v. Kemp, 5 Esp. 54. It is not necessary that the client or person seeking the advice of an attorney or counsel, should enjoin secrecy, or should be aware of his right to demand professional confidence, to render hia statements and communications privileged. McLellan v. Longfellow, 33 ilaine Reports, 494. Preliminary conversations, where no suit is brought, are also privileged. Read v. Smith, 2 Carter, 160. But the attorney is not restrained from stating facts communicated to him by a per- son seeking to engage him, which are stated to show that his cause does not conflict with the interests of a client for whom the attorney is already employed. Heaton v. Findlay, 12 Penn. State R. 304. Nor are communications between the attorneys or solicitors of opposite parties privileged. Gore v. Harris, 8 Eng. Law & Eq. 147. But if the attorney of the plaintiff acquires documents from the wife of the defendant, on the understanding that they are to be used for her husband, they are privileged. Cleve v. Jones, 8 Eng. Law & Eq. 564. (3) Mynn v. Joliffe, 1 Mo. & R. 326. See also a case cited lb. tried before Parke, J. And see by Richardson, J., in Cormack v. Heathcote, 2 B. & B. 6. Bank of Utica v. Mersereau, 3 Barb. Ch. R. 528. In Kellogg v. Kellogg, the counsel was ex- cused from producing deeds in his possession, received by him in his character as counsel, and from speaking of their contents. 6 Barb. 116. (4) Cormack v. Heathcote, 2 B. & B. 4; and see Doe d. Shellard v. Harris, 5 C. 4; P. 594. (6) Moore v. Terrell, 4 B. & A. 818. SEC. i.j In Professional Covfidence. 145 applied to by Mtii to raise the money, whetlier the bankrupt had not the lease in his possession at that time, and whether he had not brought it to him for the purpose of raising money upon it ; it was held that the wit- ness could not be allowed to answer the question.(l) Production of documentg. The principle of protection afforded to professional confidence, in regard to communications made by a client, must obviously preclude an attorney from producing or disclosing the contents of deeds or other papers depos' ited with him confidentially, in his professional character. " The names, times or dates, contained in a written instrument," said Lord Bllenbor' ough, C. J.,(2) " though not known from the communication of the client, yet come to the knowledge of the attorney from the delivery of the instru ment by his client." An attorney cannot be compelled to produce a will which he holds as attorney for a devisee claiming under it ; although it be suggested that it ought to be deposited in the Ecclesiastical Court, as being a will of personalty as well as realty.(3) Nor is the attorney for a party in a cause bound to state the contents of a document, of which he first obtained a knowledge by having read it at the suggestion of his counsel, in tl'ie course of a consultation in the cause.(4:) In this case, (1) Turquand v. Knight, 2 M. & W. 98. (2) In Beard v. Aokerman, 5 Eap. 119. And see Bate v. Kinsey, C, M. i R. 42. (3) Doe d. Carter v. Lames, 2 Mo. & R. 47. (4) Davies v. Waters, 9 M. & W. 608. Note 69. — Where it appeared that a paper had been delivered to a counsel by his client, with instructions not to make use of it in court, it was held that he was not bound to produce it in evidence in another cause, in which he was also counsel. Lynd v. Judd, 3 Day, 499. Much less is he bound to produce it in the action depending, or to testify to its contents. Dale v. Living- ston, 4 Wend. 558. An attorney or counselor is not obliged to produce a paper intrusted to him by his chent, in order that the grand jury may inspect it on a charge of forgery against the client. Anon., 8 Mass. Rep. 370 ; State v. Squires, 1 Tyl. Rep. 147. An attorney retained to obtain an insolvent's discharge, and coming to the possession of a receipt under the retainer, was held within the rule stated in the text. Parker v. Tates, 12 Moore, 521. An attorney having been intrusted with certain papers by his client, which, after the termina- tion of the suit, were left with the attorney by his client for the benefit of a party to another cause for whom he was also attorney, it was held that he was not bound to produce them xp. evidence. Jackson ex dem. King v. Burtis, 14 John. Rep. 391. But an attorney or counsel may be compelled to testify whether a deed or other instrument was delivered to him by his client, or is in his possession or not, and whether it is in court, so as to enable the adverse party, on his refusing to produce it after notice for that purpose, to give parol evidence of its contents. Bicke V. Nokes, 1 Mood. & Malk. 304; Bevan v. Waters, Id. 235 ; Brandt v. Klein, 17 John. Rep. 335; Jackson ex dem. Neilson v. M'Vey, 18 John. Rep. 330; Rhoades' Lessee v. Selin, 4 Wash. C. C. Rep. 715, 718. See notes 71, 66, 73, 68. An attorney receiving a paper of his client, D., and obtaining judgment upon it, and who then proceeds to execution by the direction of N., is yet the attorney of D. in respect to the paper, and bound to produce it against N. Neafie's Case, 4 C. H. Rec. 168, before Golden, Mayor, stated more at large, ante, note 65. (Where a solicitor is employed as counsel in a proceeding, neither the documents nor consulta- YoL. I. 10 146 Of the Rule as to Communications [CH. vil. Eolfe, B., doubted whether the information obtained by the attorney was obtained in such a manner as to render it privileged ; but he concurred with the rest of the court (Alderson, B., and Gurney, B.), that as the witness held the document in question as trustee for the defendant, and upon that ground had properly refused to produce it, he could not be compelled to state its contents.(l) But though an attorney cannot be compelled to disclose the contents of a client's deed in his possession, without the client's consent, yet if he do so willingly, with such consent, the evidence may be received, provided the proper foundation has been laid for the reception of it, by a notice to pro- duce, or a subpoena duces iecum.(2) As the same rule prevails in the courts of equity(3) and the ecclesias- tical courts,(4) motions for the production of documents are refused in those courts, where such documents are in the nature of professional com- munications; (5) such as cases laid before counsel, with the opinions thereon, (6) or books containing entries made by a solicitor relating to the drawing the will of a deceased client.(7) And it appears that the rule is applicable, where the legal adviser has received the information not directly from his client, but from a third party who had been directed by the client to communicate such informa- tion to the legal adviser : thus in a case in an ecclesiastical court,(8) it was held that letters were privileged which were written to the principal solici- tor by another solicitor who was employed by the client to collect evidence in the matter, with directions to communicate it to the principal solicitor. If the copy of a deed deposited confidentially with an attorney has been obtained out of his hands for the purpose of being produced in evi- dence by another witness, it seems doubtful whether such secondary evi- dence of its contents can be received, where the client refuses to produce tions in reference to it can be called for. Pollett v. Joflferyes, 1 Eng. Law & Eq. 112 ; GoodaH v.Little, 3 Id. 19. But where a solicitor acta aa counsel for a husband and wife, in the execution of a deed releasing lier jointure, and the latter afterwards files a bill in equity, and asks for the production of the documents, cages and opinions submitted and taken in the transaction, the solicitor is deemed to have been counsel for both husband and wife, and the documents must be produced. "Warde v. "Warde, 5 Id. 211. In Phelps V. Prew, the attorney for the defendant subpoenaed an attorney to produce a deed in hia possession, which he declined to do ; then offered parol evidence of its contents, and the court directed the attorney to allow the witness to look at the indorsement upon the deed as a means of identifying the instrument. 24 Eng. Law & Eq. 96.) (1) See also R. v. Upper Boddington, 8 D. & R. 126. (2) Hibberd v. Enight, 2 Exoh. R. 11, explaining Marston v. Downes, 6 G. & P. 381. (3) See Bunbury v. Bunbury, 2 Beav. 113. (4) See Smith v. Fell, 2 Curt. Eco. R. 661. (5) See Hughes v. Biddulph, 4 Russ. 190. (6) Eeeoe v. Trye, 9 Beav. 316; Bunbury v. Bunbury, 2 Beav. 113. See also Hare on Dis- covery, ch. 3. (1) Goodrich v. Jones, 2 Curt. Ecc. R. 611. (8) Mackenzie v. Teo, 2 Curt. Boo. R. 866. SEC. I.J In Professional Confidence. 147 the original. The question, whether such evidence can be given, seems to depend rather upon the principle which regulates the admissibility of sec- ondarj evidence generally.(l) It may be sufficient to observe in this place, that there seems never to have been any doubt, but that where an attorney after receiving a proper notice to produce, or a subpoena duces tecum, refuses to produce the document, secondary evidence of its contents may be given, where the knowledge of such contents have not been derived from the attorney himself, (2) for in such a case it would be the same thing as if the client refused to produce the document. In a case tried before Bayley, J.,(3) the' plaintiff's counsel having proved a certain deed in the possession of the defendant, and the defendant refusing to pro- duce it, though he admitted having received notice, the counsel for the plaintiff offered in evidence a copy of the deed, which had been obtained from one who, many years ago, acted as attorney for the person under whom the defendant claimed, and who had been intrusted by him with the original deed in his professional character. The counsel on the part of the defendant objected that this evidence ought not to be received, as the original deed had been deposited confidentially with the attorney ; and Bayley, J., refused to admit it. He said: "The attorney could not give parol evidence of the contents of the deed which had been intrusted to him ; so neither could he furnish a copy. He ought not to have commu- nicated to others what was deposited with him in confidence, whether it was a written or verbal communication. It is the privilege of his client, and continues from first to last." But on a recent occasion,(4) Parke, B., said, with reference to that case, " I have always doubted the correctness of that ruling. Where an attorney intrusted confidentially with a docu- ment communicates the contents of it, or suffers another to take a copy, surely the secondary evidence so obtained may be produced. Suppose the instrument were even stolen and a correct copy taken, would it not be reasonable to admit it ?" It may be remarked, however, that in the case put of the document being stolen, it may fairly be presumed that there was no breach of trust ; whereas, in the case of an attorney giving a copy of a document intrusted to him professionally, there would not only be a clear breach of trust, but the principle of the inviolability of professional confidence would appear to be infringed. The rule, it is to be remembered, is established for the benefit of the client. "Without the client's consent, the attorney will not be allowed to produce papers which he has received professionally from (1) Vide post. (2) See by Tindal, 0. J., in Houlditoh y. Cauty, 1 Am. C. P. E. 165 ; S. C, not S. P., 4 N. C. 411. See also Bottomley v. Usbome, Peake Ad. Ca. 101 ; Hibberd v. Knight, 2 Exch. E. 11. (3) Fisher v. Heming, Leic. Lent Ass. 1809. See Bottomley v. Usbome, Peake Ad. Ca. 101 ; Cook V. Hearn, 1 Mo. & E. 201. (4) In Lloyd v. Mostyn, 10 M. & W. 481. 148 Of the Rule as to Professional Confidence [CH. VII. Lis client ; in other words, he will not be permitted to divulge his client's secrets. But if he may enable others to divuJge those secrets, the privi- lege of the client may easily be defeated. (1) The case of Lloyd v. Mostyn(2) in which Parke, B., made the remark just cited, was an action upon a bond of indemnity, which was in the pos- session of one W., an attorney, who held it as the representative of a former attorney of the obligor, and who was himself the defendant's general attorney (though not the attorney upon the record), and he had undertaken to produce the bond at the trial, if the judge should think he was bound to do so: before the assizes, the bond had been sent by W. to the defendant's attorney in the action, in London, for the purposes of inspection and admission under a judge's order ; and the plaintiff's attor- ney had there taken a correct copy of it. It was held that, though "W. might properly object to produce the bond at the trial, the copy taken by the plaintiff's attorney was, upon proof of notice to produce, admissible as secondary evidence of the contents of the bond. In this case, however, there was clearly no breach of trust, and no vio- lation of confidence. The plaintiff, upon principles that will be fully explained hereafter,(3) was clearly entitled to an inspection of the bond, which was in fact sent up to London for that very purpose, and having been inspected by the plaintiff's attorney, he was competent to prove its contents, either by the copy he had taken, or from memory. Privilege continues after confidence has ceased. When once the privilege has attached, it continues forever, even though the confidential relation between the parties may have ceased. Thus, where confidential communications have been made to an attorney with reference to a suit, the attorney will not be at liberty to divulge them when the suit is determined ; his mouth is closed forever.(4) And the confi- dence continues, though the attorney has ceased to act for the party, and another attorney conducts the suit,(5) or though the attorney has been struck off the roll.(6) Rule in criminal prosecutions. Questions have sometimes arisen whether the obligation to secrecy be- tween attorney and client should be maintained, in criminal prosecutions. (1) An action would lie against the attorney for a breach of duty in so divulging his client's secrets. See Taylor v. Blaoklow, 3 N. 0. 235. (2) 10 M. & W. 478. (3) Post, Vol. II. (4) By BuUer, J., in Wilson v. Rastall, 4 T. E. 153. Crosby v. Berger (4 Edw. Oh. 254), allows that the privilege may terminate, in some oases, after the death of the client. But the rule is generally stated, as in Chew V. Farmers' Bank of Maryland, and in the text. 2 Md. Oh. Decis. 231. (5) Parker v. Tatea, 12 B. Moore, 620 | Petrie's Oase, cited 4 T. B. 756. (6) Cholmondeley (Earl) v. Clinton (Lord), 19 Ves. 268. SEC. I.] In Criminal Cases. 149 There can be no doubt that an attorney could not be compelled in a crimi- nal case to disclose any matter communicated to him professionally by his client with reference to his defence. But how far the obligation to secrecy should extend in a criminal case, where the attorney is in possession of any information or document which he has obtained without reference to the prosecution, appears to be doubtful. In the case of The King agt. Smith, (1) which was a prosecution for the forgery of a promissory note, an attorney, who had the note in his pos- session, refused to produce it before the clerk of arraigns, who required it for the purpose of setting it out in the indictment : for this he was sum- moned to appear before the judge, and show cause why he should not produce the note. He accordingly attended, together with the counsel for the prosecution, and the counsel for the prisoner. Holroyd, J., inquired minutely into the circumstances by which he had the note in his posses- sion; when it appeared, on the statement of the attorney, that he had been consulted by the prisoner on the note in question, and that by his direction he had commenced an action to recover the amount of the note against the person in whose name it was now supposed to be forged : that a short time afterwards he had been summoned before a magistrate, the prisoner having been apprehended on a charge of forgery, and he was then desired to produce the note : upon this, he inquired of the prisoner, who was present, whether he would consent to its being produced : the prisoner consented, asserting his innocence, and the note was accordingly produced. The magistrate, after taking the depositions of witnesses, re- marked that he thought it would be proper to deposit the note in the hands of the high constable : on which the attorney said, that as the note had come into his hands professionally from his client, he expected to have it restored to him, at the same time asking the prisoner whether he would consent to its being deposited with the high constable, and the pris- oner replied he wished it to be placed in the hands of his attorney. The magistrate returned the note to the attorney, observing that he would doubtless have notice to produce it at the trial. The attorney (who was not, however, eniployed professionally for the prisoner in the ensuing trial) had been subpoenaed to produce the note, which was still ia his possession; but, before he was subpoenaed, a demand of the note had been made upon him by the attorney now employed in the prisoner's defence. On these facts, the question was argued by the counsel for the prosecution and the counsel for the prisoner ; and Holroyd, J., said he would consider the point. On the following day the subject was again mentioned, when he refused to make an order upon the attorney to produce the note, or to give a copy of it to the clerk of arraigns. A bill charging the prisoner with forgery was prepared, and found by the grand jury. At the trial, the (1) Derby Sum. Ass. 1822. See, aJso, R. v. Dixon, 3 Burr. 1681. 150 Of the Rule as to Professional Confidence [CH. Vll. same attorney was called on tlie part of tlie prosecution for the purpose of producing the note; and, on his re-stating the facts above detailed, the learned judge declared his opinion, that he ought not to produce it. Secondary evidence of its contents was not offered ; the prosecution con- sequently failed ; and the prisoner was acquitted. In the case of The Queen agt. Avery,(l) however, Patteson, J., is re- ported to have held the case of The King agt. Smith not to be good law. In The Queen agt. Avery, it appeared that the prisoner applied to a solicitor to procure for him a loan of money on mortgage, the solicitor being employed by another person to put out money on mortgage secu- rity ; in proof of' his title to freehold lands, he delivered to the solicitor a will, for the forgery of which he was then to be tried ; the solicitor, upon this, advanced the money of his client, and prepared the mortgage deed: the question was, whether the solicitor could produce the will, and give in evidence what had passed between him and the prisoner as to the advance of the money. And Patteson, J., ruled in the affirmative. There appears to be an obvious distinction between this case and that of The King agt. Smith. In 1'he Queen agt. Avery, the prisoner de- posited the instrument in the hands of his solicitor, not with reference to a suit, nor with reference to any transaction resting solely between them- selves, but for the purpose of a money transaction between himself and a third person, and to be disclosed and communicated to that person. In The King agt. Smith, on the contrary, the instrument was deposited with the attorney for the purpose of a suit, in which he consulted him pro- fessionally, as a matter in confidence between him and his attorney, and solely for his own interests. The two cases, therefore, are not inconsistent, and the one does not overrule the other. For these reasons, and from re- gard to the high authority of the late Mr. Justice Holroyd, who was re- markable for the scrupulous and singular care with which he decided every question that came before him, and to this particular case gave more than ordinary time and attention, the case is still retained in the text. In a recent case,(2) Patteson, J., said that, in The Queen agt. Avery, he was reported to have said something too strong about The King agt. Smith, which was certainly distinguishable from The Queen agt. Avery. In The Queen agt. Hayward,(3) where a party, having possessed him- self of some title deeds of a deceased person, placed a forged will among them, and sent them to his attorney, for the ostensible purpose of asking his advice upon them, but in reality, as it pretty clearly appeared, that the attorney might find the will among the deeds, and act upon it, which he did ; and the client was tried for the forgery of the will, and the attorney produced it in evidence, although the prisoner's counsel objected to its (1) 8 0. & P. 596. (2) E. V. TUney, 18 L. J. (N. S.) Mag. Ca. 36. (3) 2 C. ft K. 234. SKC. I.] In Criminal Cases. 151 being read ; it was afterwards held by tbe fifteen judges that the will was properly read in evidence, not having been put into the hands of the attorney m professional confidence ; and, according to the report, it was added, even if that would have made any difference. If this last remark is correctly reported, it would imply that the judges thought the decision in The King agt. Smith (which had been quoted at the trial) could not be sustained. Yet, from the circumstances of The Queen agt. Hay ward, it would be difficult to say that the will was placed in the hands of the attorney in professional confidence, any more than the passing away a piece of bad money by a client to his attorney could be said to be an act of professional confidence : while in The King agt. Smith, the promissory note, for the forgery of which the prisoner was indicted, had been placed by him in his attorney's hands for the purpose of bring- ing an action upon it; it was, therefore, imparted to him strictly in profes- sional confidence, and the possession of it by the attorney was to be con- sidered as the possession of the client. In the case of The Queen agt. Farley, (1) the wife of A. went to an at- torney, who had never acted in any way professionally for her husband, and produced a forged will to the attorney, asking him to advance her husband some money upon the property mentioned in the will ; she left the will with the attorney, who took a copy of it, and afterwards returned the original to the husband, declining to advance any money upon it. It was decided by the fifteen judges, that upon the trial of A. for forging the will, the conversation between the prisoner's wife and the attorney was not a privileged communication, and that the copy of the will was admissible as secondary evidence, a foundation having been properly laid for the admission of such evidence. In this case, it will be remarked that the attorney had never acted in that capacity for the prisoner — a circumstance to which several of the judges adverted in the course of the argument — and the attorney was re- sorted to on this occasion not at all in that character, but simply as a money lender. There was nothing of professional confidence, therefore, in the transaction, which was, in fact, a bare attempt to defraud the attorney by means of the forged will. In the recent case of The Queen agt. Tilney and others,(2) tried before Coltman, J., where several parties were indicted for forging a will, it ap- peared that one of the prisoners, a female, had gone to an attorney, whom she had on a previous occasion consulted professionally, and that she brought with her the will in question ; that he judged, from what she said, that she came to consult him as to that document ; and that it was for the purpose of enforcing it. The witness said — " She did not come to consult me as to what her rights were, but that I might enforce her rights under (1) 2 C. & K. 313. (2) 18 L. J. (N. S.) Mag. Ca. 36. 152 Of the Rule as to Professional Confidence [CH. vil. it." All tlie cases above mentioned were cited at the trial ; and the learned judge considered the effect of the attorney's evidence to be, that the document was committed to him by the prisoner, not to be kept as a confidential deposit, but in order that it might be exhibited in court for the purpose of enforcing her rights, and thought it, under the circum- stances, advisable to receive the document in evidence, with the view of obtaining the opinion of the judges on the point. The case was afterwards argued before eleven of the judges ; but no de- cision was come to upon this poiut, as it appeared that there was no evi- dence of an intention to defraud any one' so as to support the indictment. But in the course of the argument, Parke, B., said : " Suppose it were given for the purpose of being shown to the tenant in possession, would it be privileged ? And on the other hand, if title deeds are given to an attor- ney to use for the benefit of the party giving them, can he be required to produce them against him?" Wilde, C. J., added : "If title deeds are in- trusted to an attorney, can it be doubted that he is not at liberty to pro- duce them ?" Lord Denman, C. J., then said : " But if a forged and false instrument is given to an attorney, ought not he take it to a magistrate ?" To which "Wilde, C. J., answered : " I apprehend that the magistrate could not receive the statement." If the principle upon which the document was admitted in this case be the correct one, it would certainly apply to the facts in The King agt. Smith,(l) as in that case the promissory note had been intrusted to the attorney to enforce the prisoner's supposed rights under it. In the still more recent case of The Queen agt. Hawkins,(2) where a defendant was indicted for perjury committed in the county court in respect of a paper which had been produced at the trial there, the defend- ant's attorney was subpoenaed to produce the paper on the trial of the indictment ; he stated that he had received it from his client (the then defendant) for the purpose of conducting the cause in the county court as his attorney, and he claimed a lien upon it ;(3) and Coltman, J., ruled that he ought not to produce it, as his possession of the paper was the possession of the defendant; and secondary evidence was given of its contents. ■Where attorney acts for two parties. Where a deed or other paper is intrusted to an attorney by two per- sons, , the attorney must, as against strangers, keep it according to the nature of his original employment, and subject to the rights of both the persons by whom he is employed. Therefore, when a vendor had a draft of a conveyance made by his own attorney, from which title deeds were (1) Ante, p. 149- (2) 2 0. & K. 823. (3) As to this, see Thompson v. Moseley, 5 C. & P. 601. SEC. I.J ' In the Case of Third Parties. 153 afterwards prepared, and tte attorney was paid for Ms business by the vendor and purchaser in moieties by agreement, but tTie latter employed an attorney on bis own part to look over the draft, and the draft remained afterwards with the vendor's attorney ; it was held that such draft was confidentially deposited with the vendor's attorney by the purchaser as well as by the vendor, and that it could not be produced at the trial against the interests of the purchaser's devisees, though with the consent of the vendor and his attorney.(l) So an attorney who, being resorted to by a borrower to raise money for hfen, peruses, on the part of the proposed lender, the abstracts of the borrower, is not allowed to give evidence concerning them against the borrower.(2) An attorney employed by consent of two parties in preparing a deed from one to the other, cannot be examined as to what he so became informed of in the preparing of the deed, when the action is brought by the assignees of one against the other, suggesting fraud in the deed. (3) But the privilege attaches to such communications only as are made by each party to the attorney in the character of his own professional adviser. Thus, where the same attorney was acting both for the vendor and pur- chaser of an estate, a communication from the latter, asking for time to pay the purchase money, was held not to be privileged, as being made to him in his character of attorney for the vendor.(4) So where A., having a claim against B., they both went together to the office of A.'s attorney, who had never acted as the attorney for B., and. B. made a statement relating to A.'s claim, and it was arranged that the attor- ney should, on behalf of B., write to a third party in respect of the subject matter of the claim ; it was held, in an action by A. against B., that the statement of the latter in the presence of the attorney was not a privileged communication. (5) Where attorney is of one not a party. The protection afforded to professional confidence applies not only to the professional advisers of the parties to a suit, but also to the professional (1) Doe d. Stroder v. Seaton, 2 A. & B. ITl. (2) Doe d. Peter v. Watkins, 3 N. 0. 421. And see Taylor v. Blacklow, Id. 235. (3) Eobson V. Kemp, 4 Esp. 235. In "Warde v. Warde, the solicitor who acted for the husband and his wife in the preparation and execution of a deed of release of the wife's jointure, was required in equity to produce the documents taken and used in the transaction ; the sohcitor having acted for them both. 5 Eng. Law & Eq. 2lT. So, in Hawkins \. Gathercole (2 Id. 109), the person who acted as solicitor for both the borrower and lender of money on the security of certain property, was held In equity (a bill having been filed by the lender alleging the insuJBoiency of the property, and fraud and col- lusion between the solicitor and the borrower), bound to produce the letters that passed between him and the borrower. 2 Id. 109. (4) Perry v. Smith, 9 M. & TV. 681. See, also, Braughe v. Cradock, 1 Mo. & E. 182 ; Cleeve T. Powell, Id. 228. (6) Shore v. Bedford, 5 M. & G. 2T1. 154 Of the Rule as to Professional Confidence [CH. vil. advisers of strangers to the suit.(l) Thougli it is convenient to collect the cases respecting professional confidence in the same chapter, the protec- tion afforded to such disclosures, when made by strangers, is founded on principles which are reserved for consideration in the chapter which treats of the examination of witnesses. Questions of this nature can seldom occur in regard to verbal communi- cations, in consequence of the rule which excludes hearsay evidence. But they have not unfrequently arisen, where an attorney has been called upon to produce the title deeds of a strai%er to a suit, which have been confi. dentially deposited with him. Where an attorney is called upon to produce deeds or papers belonging to his client, who is not a party to the suit, the court will inspect the doc- uments and pronounce upon their admissibility, according as their produc- tion may appear to be prejudicial or not to the client, in like manner as where a witness objects to the production of his own title deeds.(2) And, notwithstanding some conflicting opinions, the same rule appears to be held in respect of proceedings or documents in the custody of solicitors for assignees of bankrupts.(3) It would seem that, in the case of a stranger to the suit, the attorney's privilege is not more extensive than that of the client, which seems to be confined to the non-production of documents of title.(4) On a question of settlement, it was held that a mortgagee, a rated inhab- itant of the appellant parish, subpoenaed by the respondent parish, was not compellable to produce the title deeds of the mortgagors ; and that his attorney was not at liberty to produce an abstract of the deeds, or to give parol evidence of their contents.(5) "In like manner it has been held that the solicitor of one of the parties to a deed of composition is not compella- ble to produce it in an action between strangers.(6) (1) R. V. Withers, 2 Campb. StS. A person holding a document prepared by him aa solicitor for the person under whom both plaintiffs and defendants claim, and for a third party, a mortgagee, is held not bound to produce it I it is otherwise where no third person is interested in the preparation of the document. Chant T. Browne, 12 Eng. Law & Eq. 299. (2) Copeland v. Watts, 1 Stark. R. 95 ; Hawkins v. Howard, Ry. & M. 64. An attorney called upon to produce a document at a trial, may refuse, alleging tliat it was intrusted to him by his client ; and he is not bound to state the nature of the document, nor to produce it ; and it seems that the court ought not to examine the paper for the purpose of determining whether or not it ought to be withheld. Volant v. Soyer, 16 Eng. Law & Eq. 426. (3) See Laing v. Barclay, 3 Str. 38 ; Baleson v. Hartsipk, 4 Esp. 43 ; Corsen v. Duboits, Holt, 239; Cohen v. Templar, 2 Stark. R. 260; Nixon v. Mayoh, 1 Mo. & R, 76 ; Hawkins v. Howard, Ry. & M. 64. In Pearson v. Fletcher (5 Esp. 9), Lord EUenborough, 0. J., considered the production of bankruptcy proceedings a matter of pubUc duty. (4) See Doe d. Courtail v. Thomas, 9 B. & C. 288. See, also, Ditcher v. Kenrick, 1 C. & P. 161. It does not appear whether the deed in that case was a document of title. (5) R. V. Upper Boddington, 8 D. & R. 126. (6) Harris v. HiU, 3 Str. 140. SEC. I.] In the Case of Third Parties. 155 But where by an order of the Court of Chancery, made in a suit depend- ing between a lessor and a lessee, a lease was deposited in the hands of the lessor's attorney, and the lessee was at liberty to inspect the same, it was held, in an action of ejectment brought by the lessee against the tenant in possession, that the attorney of the lessor was bound to produce the lease, as it was not part of the lessor's title.(l) In an action of ejectment by the reversioner against the lessee of the tenant for life,(2) notice to produce certain deeds had been given by the defendant to the lessor of the plaintiff; these were not produced at the trial, but an abstract of them, which had been compared with the deeds, was in court, in the hands of a solicitor for a third party, who had been in negotiation with the lessor of the plaintiff for an exchange of the prop- erty ; it was proposed, on the part of the defendant, to produce this abstract as secondary evidence of the contents of the deed ; the solicitor stated that he had not received permission from his client to produce it, but he was ready to do so if the judge thought he was at liberty to do it. The judge ruled that the abstract might be received in evidence, although the counsel for the lessor of the plaintiff objected to its production ; and the Court of Queen's Bench upheld this ruling. Lord Denman, C. J., observed in this case : "I think this privilege is of a strict nature, and not to be encouraged. Why am I to be deprived of the benefit of a fact which a witness knows, because he may fancy that his client may be a loser by its disclosure ?" The attorney of a stranger to the cause cannot be compelled to produce a case with the opinion of counsel, which he holds confidentially for his client.(3) In an action against the sheriff for an escape, it has been held that the attorney for the original defendant could not be called to prove the debt, where he became acquainted with the business only from the information of his client.(4) So in an a,ction by the assignees of a bankrupt, commu- nications made by him to his attorney cannot be given in evidence for the purpose of showing his motives, (5) unless with the consent of the bank- rupt, in which case the defendant cannot object to the disolosure.(6) An action for breach of promise of marriage had been brought by A. against B. The cause was referred under an agreement in two parts, one of which signed by A.'s attorney but unstamped, was in the possession of B.'s attorney; the other part signed by B.'s attorney and stamped, was in the possession of A.'s attorney ; the expense of the stamping having been (1) Doe d. Courtail v. Thomas, 9 B. & C. 288. (2) Doe d. Egremont (Lord) v. Langdon, 18 L. J. (N. S.) Q. B. 11. (3) R. Woodley, 1 Mo. & R. 390. (4) Sloman t. Home, 2 Bfip. 69S. (5) Bowman V. Norton, 5 C. & P. 177. (6) Merle v. More, Ry. & M. 390 ; S. C, J C. & P. 275. 156 Examination of Attorney [CH. vii. borne by B. B. brought an action against his attorney for negligence in conducting the reference. It was ruled(l) that the then plaintiff (B.) was entitled to the production of the stamped part of the agreement by A.'s attorney, although he was directed by A. not to produce it.(2) It was also ruled that A.'s attorney was not bound to produce letters written by the then defendant as attorney for B. to the witness as attorney for A. ; but that if, after notice to produce, the letters written by the witness as attorney for A. to the then defendant as attorney for B, were not produced, the witness was bound to give secondary evidence of their contents, although desired by the defendant A. not to do so. It has been held that the counsel in a cause have a right to argue the admissibility of this kind of evidence which relates to the rights of per- sons not being parties to the cause :(3) but it has been said in argument(4) that this right is limited to cases where the attorney objects to produce the document, and does not extend to cases where the attorney makes no objection. (5) There are conflicting cases upon the question wbetber the improper ad- mission or rejection of this kind of evidence is a sufficient ground for a new trial. In Marston v. Downes,(6) the Court of King's Bencb decided that, even supposing the judge acted erroneously in admitting such evi- dence, the parties to the action had no right to insist upon tbe objection, and a rule for a new trial was refused. But in the later case of Doe d. Peter v. Watkins,(7) the Court of Common Pleas granted a new trial, on the ground that such evidence had been improperly received. "Where attorney is examined as to collateral facts not in confidence. The attorney of a party in the cause may be examined, like any other witness, as to any collateral fact, with which he has become acquainted otherwise than from a disclosure or confession by his client.(8) Thus, if he is the subscribing witness to a deed, he may be examined concerning its execution.(9) K there be a question about an erasure in a deed or will, he may be asked whether he had ever seen the instrument in any other (1) Higgs V. Taylor, 1 C. & Kir. 86. (2) This was upon the ground that that part of the agreement appeared to have been stamped for the mutual benefit of A. and B., upon the same principle that the court will compel the pro- duction of documents for inspection in which other parties are interested. Tide post, Vol. II. (3) R. V. Woodley, 1 Mo. & R. 390. See, also, Mills v. Oddy, G C. & P. 733 ; Higga v. Taylor, 1 C. & K. 85. (4) In Doe d. Bgremont (Lord) v. Langdon, 18 L. J. (N. S.) Q. B. 19. (5) But see Doe d. Peter v. "Watkins, 3 N. 0. 421. (6) 1 A. & E. 31, A. D. 1S34. C?) 3 N. C. 421, A. D. 1837. (8| See Sawyer v. Brickmore, 3 M. & K. 512. (9) Doe d. Jupp V. Andrews, Cowp. 846 ; Robaon v. Kemp, 4 Esp. 235. Note IO,— Devoy's Lessee v. Burke, 2 Pox & Smith, 191, 199, S. P. This case holds that ha is bound to testify, having witnessed the deed, although he obtained his knowledge as attorney. SEC I.] As to Collateral Facts. 157 state.(l) But ttis doctrine must be limited to a case -where the attorney has his knowledge independently of any communication from the client ; it does not mean that where the attorney, coming to the client for a confi- dential purpose, obtains some other collateral information which he would not otherwise have possessed, he can be compelled to disclose it.(2) If an attorney were present when his client was sworn to an answer in chancery, he might be a witness, on an indictment for perjury, to prove the fact of taking the oath, which is not a fact peculiarly within his knowledge as an attorney, and not communicated to him in secrecy.(3) In one case, an at- torney was admitted by Lord Kenyon, C. J., in an action of debt upon a bond, to prove that the bond had been given on an usurious considera- tion.(4) This appears to have been done upon the assumption that the attorney had made himself a party to the transaction ; but it is doubtful whether the facts of the case would sustain that assumption, and whether the decision would be now acted upon.(5) An attorney, conducting a cause in court, may be called as a witness by the opposite side, and asked as to his employer, in order to show the real party, and let in his declarations.(6) He may be called to prove the identity of the defendants to a suit, though, except from his intercourse with them professionally, he knows nothing of them.(7) He may prove his client's handwriting, (8) and may be required to state whether he is himself in possession of a particular document, so as to let in secondary evidence of its contents, after a notice to produce, although he obtained the possession from the client.(9) (1) B. TS. P. 284 J Cuts v. Pickering, 1 Tentr. 19T. (2) By Lord Abinger, C. B., in Wheatley y. 'Williams, 1 M. & W. 451. (3) B. K P. 284; by Lord Mansfield, C. J., in Cowp. 846. (4) Duffin T. Smith, Peake, 108. . (5) See the remarks of Lord Brougham, C, in.l M. & K. 109. (6) Levy v. Pope, M. & M. 416. Note 71. — An attorney was compelled to testify as to the person who retained him in the cause, in order to let in the confession of the real party as evidence. Levy v. Pope, 1 Mood. & Malk. 410. But see Chirac v. Keinioker, 1 1 Wheat. 280, cited supra. (7) Studdy v. Sanders, 3 D. & S. 347. For other examples, see Beokwith v. Benner, 6 C. & P. 681 ; Hurd v. Moring, 1 C. & P. 372 ; Eicke v. Nokes, M. & M. 303 ;' E. v. Watkinson, 2 Str. 1122, with the guere of the reporter. (8) 2 Hawk. 0. 46, § 89. Note 72. — Johnson v. Daveme, 19 John. R. 134. The attorney may prove hia client's hand- writing, having acquired knowledge of it without any confidential communication in respect io it; eveli though this be by seeing his client put his name to a bail bond in the very cause. Hurd v. Moring, 1 Carr. & Payne, 545. (9) Bevan v. Waters, M. & M. 235 ; Coatea v. Birch, 2 Q. B. 252. Note 73. — So an attorney is compellable to testify that a deed delivered to him as attorney is in existence and in his possession, in order to let in secondary evidence of its contents under a notice to produce it. Brandt ex dem. Van Cortlandt v. Klein, 17 John. Rep. 335. ■ (He may be called upon to state whether a document so received by him is in court, or in his possession. Dwyer v. Colling, 12 Eng. Law k Eq. 532, note 537 ; Coveney v. Tanahill, 1 Hill R. 33, review- ing the authorities on the subject at length.) 158 What Communications privikged [CH. vii. A bill in equity, filed by tbe insurers of a life against the insured, to which the solicitor of the insured was a party as a defendant, stated that on a particular day, an agent of a company with whom the insured wished to effect an insurance, came to the office of the insured, and told their agent that the life was bad, handing to him at the same time an unfavora- ble medical report upon the life. The solicitor of the insured was present at this interview, but in his answer to the bill he refused to state what passed, because he was then " the solicitor and attorney and the profes- sional adviser" of the insured, and was present at the said interview as such solicitor, &c., " and acquired his information touching the matters" which he refused to answer, " solely from the fact of his being present at the time in his capacity of such solicitor and attorney and professional and confidential adviser:" it was held that this answer was insufficient.(l) Lord Cottenham, C, after some very important observations upon the general principles on which communications are entitled to be considered as privileged, and having stated that the privilege only applies to cases in which the client makes a communication to his solicitor with a view of ob- taining his legal advice, remarked : " Such being the rule, the only ques- tion is, whether the defendant (the solicitor) in the present case has used such words in his answer as clearly and distinctly to bring himself within it." And then, after stating the facts as set forth in the defendant's an- swer, his Lordship continued : "It may be that the defendant Avas present accidentally, and so heard what passed : but at all events, those who claim the privilege are bound to bring their case within it. I cannot say till I have learned how the defendant came to be present, who sent for him, and so forth, whether the communication was privileged."(2) So, where a motion in the Ecclesiastical Court for the production of certain papers, referred to by a witness in his deposition (the witness being the solicitor of the party in the cause opposing a codicil), was re- sisted on the ground of privilege, it was held that information collected by the solicitor from a subscribing witness to the codicil, was not privi- leged ; though it would have been otherwise if such information had been communicated by the client to the solicitor ; and it was also held, that letters written by the testator to the same solicitor, with regard to a bond executed by the former in favor of the party propounding the codicil, were not privileged communications as between that solicitor and his client, the party opposing the codicil. (3) The privilege, however, extends to all knowledge obtained by the at- (1) Desborough v. Rawlins, 3 Mylne & Cr. 615. (2) 3 Mylne & Cr. 625. See, alao, Pritohard v. Foulkea, 1 0. P. Coop. 14; Greenlaw v. King, 1 Beav. 13'7: (3) Mackenzie t. Teo, 2 Curl. Eoo. R. 866. The communication must come to the attorney or solicitor directly from hia client or it will be not privileged. Crosby v. Berger, 4 Edw. Ch. 264. SEC. I.] As made in Professional Confidence. 159 torne}^ whicli he would not have obtained if lie had not been consulted professionally by his client. And it has accordingly been held that an at- torney is not compellable to state whether he has seen a document in the possession of his client ;(1) or whether a document, shown to him by his client, in the course of a professional interview, was in the same state as when produced on the trial ; as, for example, whether it was stamped or not.(2) It is obvious that communications by an attorney to the opposite party or to strangers, and communications between a plaintiff and defendant in the presence of an attorney, do not fall within the principle or terms of the rule which protects private communications between parties and their professional advisers.(3) So, communications from the opposite party to the attorney, or to the client, in his presence, are not within the rule.(4) Thus, the attorney of one of the parties may be examined as to the con- tents of a written notice, which had been received by him from the adverse attorney, requiring him to produce papers.(5) The rule is also inapplicable to admissions or proposals of compromise made by counsel or attorneys ; these will be considered afterwards, in that part of the work which treats of admissions by agents. Communications made by a client to his attorney, not for the purpose of asking his legal advice, but to obtain information concerning a matter of fact, are not privileged. " A question for legal advice," said Tenterden, C. J., in Bramwell v. Lucas,(6) '' may come within the description of a (1) Bingham v. Stanley, 9 C. & P. 31i. See, also, Moore v. Terrell, 4 B. & A. BIS. (2) Wheatley v. "Williams, 1 M. & W. 533. (3) By Parke, J., and Patteson, J., in Griffith v. Davis, 5 B. & A. 503, questioning the authority of Gainsford V. Grammar, 2 Campb. 9. See, also, Ripon v. Davis, 2 N. & M. 210; Turner v. Railton, 2 Esp. 274. Note 74. — Spencer, J., held that terms of compromise, offered by an attorney to his client's creditors, were not to be considered confidential, as he had already published them. M'Tavish V. Denning, Anthon's N. P. Caa. 113 ; Post, note 152, S. C. And see Tordan v. Hess, 13 John. Eep. 492. (Nor are communications that pass between the attorneys of opposite parties privileged. Gore V. Harris, 8 Bng. Law & Eq. 147.) (4) See Desborough v. Eawlins, ut sv/pra. (5) Spenceley v. Schulenburgh, 7 East, 357. (6) 2 B. & C. 744. ^ Communications to an attorney or legal adviser, are hold privileged for the protection of the client, who may waive the privilege ; and in the case of a stranger to the suit, it is laid down in the text that the attorney's privilege is not more extensive than that of his client. Doe d. Cour- tall V. Thomas, 9 B. i C. 288. Under recent statutes, making parties to the suit competent and compellable to testify in the same manner as other witnesses, quere, whether many communications between client and attorney, formerly considered privileged, can be any longer so regarded ? If the party himself may be called upon to answer a question or produce a document, there would seem to be no good reason why his attorney should be held privileged from answering it, or producing it. In such a case, the legal adviser cannot be said to have betrayed the professional confidence reposed in him, because the subject matter of the communication might have been inquired into by calling and examining the party himself. In effect, the law rendering a party compellable to testify, declares, that in civil cases, the parties shall have no secrets pertinent to the issue on 160 Of the JExclusion of Evidence [CH. vil. confidential communication, because it is part of the attorney's duty, as attorney, to give legal advice ; but a question for information as to matter of fact, regarding a communication wbicli the attorney has made to others, where the communication might have been made by any other person as well as an attorney, and when the character and office of an attorney has not been called into action, has never been held within the protection, and is not within the principle upon which the privilege is founded." The rule here laid down by the Court of King's Bench has never been questioned ; but its application to the particular facts of that case has been much doubted both by Lord Brougham, C;,(l) and Lord Cottenham, C.(2) " Undoubtedly," observed the latter, "looking at the facts of that case, it is not very easy to come to the conclusion to which the court there came in point of fact. The question was, whether the client had committed an act of bankruptcy on a particular day. On that day, the client inquired of his solicitor whether he could safely attend a meeting of his creditors without being arrested for debt. The solicitor advised him to stay in his office ; and he accordingly did stay there for upwards of' two hours to avoid being arrested. The question was, whether what passed between the solicitor and his client was receivable in evidence. That looks un- doubtedly very like a professional communication for the purpose of ob- taining advice ; and the court said, if it was a professional communication it was privileged. If, therefore, the client asked the solicitor his advice in point of law, whether he could with safety attend the meeting of his cred- itors, the communication would be privileged ; but the court said that, in its nature, it could not be privileged, but that it was merely an inquiry of fact, whether the client's creditors, because they had clearly all their legal rights, would arrest hini ; and that the only question was, whether they had agreed not to do so ; and the court held the question was one of fact and not of law."(3) SECTiojsr n. 0/ the JSoxlusion of Evidence, where the Disclosure would he Prejudicial to Public Interests. The discovery of truth in inquiries necessary for the administration of criminal justice, as also where the rights of private individuals are oon- trial that may not be inquired into. Tcrliaps, however, it is as well to pei-mit the privilege to cover oonfldantial commuuicatioas between client and attorney, leaving the opposite party at liberty to call and examine his adversary. Our notion of good faitli, aad the very idea of pro- fessional confidence, requires that it be kept inviolate, while the riglit to examine an opponent on oath gives a fair opportunity to search out the whole truth. (1) In Ureenough v. Gaskell, 1 Mylne & K. 98. (2) In Desborough v. Rawlins, 3 Mylne & Or. 516. (3J 3 Mylne & Cr. B21. SEC. II.J From Begard to Public Interests. 161 cemed, is an object, which, however desirable in itself, may nevertheless be counterbalanced by serious inconveniences from disclosures prejudicial to public interests. And the danger of such disclosures has been deemed, in particular instances, an adequate ground for the exclusion of evidence.(l) Information given to government. "Witnesses are not to be examined respecting information given by them to government for the discovery of offenders against the law. The names of persons who are the channels by which detection is made, are not to be disclosed. This is not the privilege of the witness, but may be justly called a public privilege, on account of its importance to the public ; it is observed by courts of justice on a principle of public policy, and from re- gard to public interests. On the trial of Hardy for high treason, a man who had been employed by an of&cer of the executive government to collect information at a meet- ing of one of the corresponding societies, was not allowed to disclose the name of his employer, or the nature of the connection that had subsisted between himself and the o£Bcer.(2) Another witness, in the course of the same trial, had made reports from time to time of the proceedings of some corresponding societies, and had made these reports by the advice of a third person, and under the impression that the information contained in the reports would be transmitted to another quarter for the purpose of disclosure; the witness was asked whether he had communicated his reports to a magistrate of any descrip- tion ; Eyre, C. J., considered this a proper question. (3) The witness, on answering in the negative, was asked to whom he had made a commu- nication. This question was objected to ; Eyre, 0. J., upon this said: "It is perfectly right, that all opportunities should be given to discuss the truth of the evidence given against a prisoner ; but there is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed. If it (1) Note 15. — On trial of an indictment for counterfeiting, and having possession of counterfeit bank notes, &c., a question, on cross-examination, was put to a witness for the prosecution, whether one Johnson, at whose house the prisoner was apprehended, had told the witness that, if he would come to his house on a certain day (being the day on which the prisoner was arrested), he would have the prisoner there. Washington, J., would not allow the question to be answered. He took the ground that such a disclosure could be of no importance to the defence, and might be highly prejudicial to the public in the administration of justice, by deterring nersons Irom making similar disclosures of crimes which they knew had been committed. United States v. Moses, 4 Wash. 0. C. Rep. 126. (2) 24 How. St. Tr. 753, on cross-examination of Groves. The same principle was acted upon in the prosecution of Hofne Tooke for high treason ; in the prosecution of Walker and others for a conspiracy ; and in the prosecution of "Watson for high treason. Gumey's Beport, 159. See, also, 32 How. St. Tr. 100. (3) 24. How. St. Tr. 808; on the cross-examination Of Lynam. Vol. I. 11 162 Of the Mcdusion of Mndence [CH. Vll. can be made appear, that it is necessary to the investigation of the truth of the case, that the name of the person should be disclosed, I should be very unwilling to stop it ; but it does not appear to me that it is within the ordinary course to do it, or that there is any necessity for it in this partic- ular case." The cross-examination of the same witness then proceeded, and he admitted that he had related what he knew to a friend, who advised him to communicate his reports of the proceedings to another person. He was then asked whether that friend was a magistrate ; this he answered in the negative: then came the question, who was the friend? This was objected to ;(1) the objection was, that the person by whose advice the information was given to a person standing in the situation of a magis- trate, was, to all intent^ and purposes, the informer, and that his name, therefore, could not be disclosed.(2) The judges differed in opinion upon this point ; Macdonald, C. B., and BuUer, J., were of opinion that the question was proper; but the raajority of the court, consisting of Eyre, C. J., Hotham, B., and Grose, J., were of the opposite opinion. Eyre, C. J., said : " Those questions, which tend to the discovery of the channels by whom the disclosure was made to the officers of justice, are not permitted to be asked. Such matters cannot be disclosed, upon the general principle of the convenience of public justice. All persons in that situation are protected from discovery. It is no more competent to ask who the person was that advised the witness to make the disclosure, than. it is to ask to whom he made the disclosure in consequence of that advice, or than it is to ask any other question respecting the channel of information, or what was done under it." Grose, J., considered the adviser of the witness to be substantially in the situation of an informer, and that his name, therefore, ought not to be revealed. Hotham, B., also considered the person to be an informer ; the witness, he said, had made the communication to his friend, under an impression and full persuasion that through him the intelligence might be conveyed to a magistrate ; and there was no distinction, he added, between making a disclosure to the magistrate himself, or making it to another person who was to communi- cate it to the magistrate. The judges who were of opinion that the question might properly be asked, admitted the general rule, and differed only in the application of that rule to the particular facts of the case. Macdonald, C. B., said : " If he were satisfied that the friend to whom the witness disclosed this matter was in any way a link in the communication, he should certainly agree that the rule applied to him ; but this person not being connected either with the magistracy or the executive govern- ment, the case did not appear to him to fall within the rule." BuUer, J., (1) 24 How. St. Tr. tH. (2) 24 How. St. Tr. 814. spe. II.] From Begard to Pvhlic Interests. 163 admitted the rule witL. respect to the iaformer to the utmost extent : "It the name of the informer," he said, " were to be disclosed, no man would make a discovery, and public justice would be defeated." He admitted, also, that if a middle man is made the channel of communication, he ought to receive the same protection as the first person to whom it was mentioned. But he differed in opinion only as to the situation of the friend respecting which this question arose : in his view of the evidence, he considered that the witness had communicated the information to another man, not for the purpose of prevailing on him to make the dis- closure to a magistrate, but merely to consult him for the purpose of making up his own mind whether he should himself make the discovery ; he was, therefore, of opinion that the witness ought to be allowed to answer the question. Eesult of cases. Hence, it appears that a witness who has been employed to collect information for the use of government, or for the purposes of the police, will not be permitted to disclose the name of his employer, or the nature of the connection between that employer and himself, or the name of any person to whom he may have conveyed the information for the purpose of being transmitted. And, as it would not be proper to inquire to what officer of government the information had been given, so neither can it be asked whether the information has been made by that officer to the government.(l) The same rule applies to cases of information in the Exchequer for breaches of the revenue laws : thus, in such a case, a witness of the crown cannot be asked, in cross-examination, whether he was himself the in- former. (2) But the rule does not seem to apply in cases where the witness is obviously put forward as the informer.(3) It may be questionable also, whether it is applicable in cases of ordinary prosecutions, in which the government is not directly concerned.(4:) In The King agt. Blackman,(5) on an information under the 17 Greo. II, c. 40, § 10, for possessing naval stores, a witness was asked on the voir dire if any of&cer or other person had given information to the admiralty respect- ing the stores in question. Upon this case being cited in argument,(6) as an authority that such questions might be put. Pollock, C. B., remarked, it did not appear that that was a prosecution by a government officer.(7) It (1) See farther upon this point, Home v. Bentinck, 2 B. & B. 130 ; R. v. Akers, 6 Esp. 126. (2) Att. Gen. v. Briant, 15 M. & W. 169. (8) R. V. Candey, 15 M. & "W. 176. See, also, "Watson's Case, 32 How. St. Tr. 98. (4) By PoUook, 0. B., 15 M. & W. 181. (6) 1 Esp. 95. (6) In Att. Gren. v. Briant, ut supra. C?) 15 M. & W. 180. 164 Of the Eaxlusion of Evidence [CH. Vll. does not appear either that the question was objected to, which perhaps was the real reason why it was allowed to be asked. (1) Upon the trial of Watson for high treason, a clerk of the works in the ordnance department, who had resided many years in the Tower of Lon- don, was called, on the part of the prosecution, to prove that a plan pro- duced was part of the interior of the tower. He was afterwards asked, upon cross-examination, whether another printed plan, which was shown to him, was a correct plan of the tower ; this was asked, with the view of proving afterwards, that such maps might be purchased without difiQculty in the shops of London. But the court held, that the evidence could not be received, on the ground that it would be attended with public mischief, to allow an officer of the tower to be examined as to the accuracy of such a pi an. (2) Official communications. On a like principle of public policy, official communications between the governor and law officer of a colony respecting the state of the col- ony ;(3) orders given by the governor of a colony to a military officer ;(4) a correspondence between an agent of government and a secretary of state ;(5) or between the Court of Directors of the Bast India Company and the Commissioners of the Board of Control (pursuant to the statute 3 & 4 Wm. IV, c. 85) ;(6) the report of a military court of inquiry respecting an officer whose conduct the court had been appointed to examine ;(7) the official correspondence between the commissioners and an officer of the customs ;(8) a letter from a secretary of state to a person acting under his authority ;(9) all these are confidential and privileged communications, which courts of justice will not allow to be disclosed. (1) See 15 M. & W. 175. (2) R. v. Watson, 2 Stark. H. 148. (3) Wyatt v. Gore, Holt's N. P. C. 299. (4) Cooke V. Maxwell, 2 Stark. E. 183. (5) Anderson v. Sir W. Hamflton, 2 B. & B. 156, n. Note 16. — A former secretary of state is not bound to disclose confidential communications made to him in the line of his office (Marbury v. Madison, 1 Cranoh, 144) ; nor semb. the president of the United States, to disclose communications made to him officially. 1 Burr's Tr. by Robert- son, 186, 18'7. (6) Smith V. East India Co., 1 Phil. R. 50. (7) Home v. Bentinck, 2 B. & B. 130 ; Lee q. t. v. Birrel, 3 Camp. 355. (8) Black V. Holmes, Fox & Smith's Rep. 28, K. B. in Ireland. (9) Case cited 2 Stark. R. 185. As to minutes taken before the Privy Council, see Layer's Case, 6 T. R. 281. It has been held, that a senator will be admitted to disclose facts which transpired in a secret session, after having applied to have the injunction of secrecy removed without avail. Law v. Scott, 5 Harr. & John. 438. But where papers were filed with a governor, containing charges alleged to be libelous, the court refused a subpoena duces tecum to compel him to produce them. Gray v. Pentland, 2 Serg. & Rawle, 23 ; approved in Youter v. Sanno, 6 Watts, 166. The same principle has been repeatedly recognized and acted upon in this state, on the ground that such communications are privileged, and cannot be made the foundation of an action for libel. Thorn sac. II.] From Begard to Public Interests. ' 165 But although the orders given by the governor of a colony to a military officer cannot, as we have seen, themselves be produced ; yet the witness may be asked in general terms, whether he did not do a certain act under the direction of the governor.(l) And communications, though made to official persons, are not privileged, if they had not been made in the dis- charge of any public duty. Thus, a letter written by a private individual to the secretary of the postmaster-general, complaining of the conduct of the guard of a mail, has been held not to be within the principle of the rule justifying the exclusion of evidence.(2) Proceedings In Parliament. In the case of Plunkett v. Cobbett,(3) which was an action against the defendant for publishing a libel reflecting on the conduct of the plaintiff as a member of the Commons' House of Parliament in Ireland, the counsel for the defendant, in cross-examination, inquired of the speaker of the House of Commons, who was called as a witness, as to the expressions and arguments which the plaintiff had used in Parliament on a particular sub- ject, when Lord Ellenborough, C. J., interposed and stopped the exami- nation, observing that it would be a breach of duty in the witness, as a member of the Irish Parliament, and a breach of his oath, to reveal the councils of the nation. But his Lordship said, that as to the fact of the plaintiff having spoken in the debate, the witness was bound to answer; as that was a fact containing no improper disclosure of any matter then under discussion in Parliament.(5) In court. Upon the same principle of public policy, as it seems, a judge cannot be compelled to state what occurred before him in court. Thus, the chair- man of quarter sessions cannot be called upon, on an indictment for per- jury alleged to have been committed in a trial at the sessions, to give evidence as to what the defendant swore at that trial.(3) V. Blanohard, 5 John. 508 ; Van stands upon a different principle. Such documents are often the only attainable evidence of ancient acts of possession, which may be of great weight in the investigation of titles, and they naturally accompany and constitute a part of such acts. Ancient documents, therefore, purporting to be a part of transactions, and not a mere narrative of them, are, under certain qualifications which will be noticed, receivable as evidence that those transactions really occurred. And, in this sense, the documents may be called hearsay evi- dence of ancient possession. Such evidence is very commonly adduced in practice to corroborate modern use or possession. Thus, upon a question as to the right of a lord of a manor to hold cer- tain land within the manor free from common, several counterparts of leases found among the muniments of the lord of the manor, from which it appeared that the land had been demised by the lord free from common, were held to be receivable in evidence. (4) (1) Doe d. Tilman v. Tarver, Ey & Mo. 141. (2) By Lord Tenterden, C. J., Ry. & Mo. 142. See the remark of tord iferoiigham, C, ii this case, and in Monckton v. Att. Gen., 2 Ruas. & M. 160. (3) Zouch of Haryngworth Peerage, Print. Min. 1804, p. 207. (4) Clarkson v. 'Wobdhouse, 5 T. R. 413, n. ; S. C, 3 Doug. 189. See also Barnes v. MawsoB, 1 M. & S. IS, supra; Loathes v. Newit, 4 Price, 355 ; 8 Price, 562 ; Ksher v. Graves, 3 Bag. k Y. 1180. 282 Documentary M-'idence of Ancient Possession. [CH. vill. In an action of trespass(l), upon issue joined on a plea of justification by virtue of a prescriptive right of fishery appurtenant to a manor, old licenses on the court rolls, and leases granted by the lords of the manor, in consideration of certain rents, to fish in the locus in quo, were held to be receivable evidence. Heath, J., in this case, observed, that he could not distinguish the licenses from old leases, -whicb were always received in evidence in favor of those claiming under the lessors. Eent rolls, where payments have been made, are good evidence to prove fee-farm rents,(2) or for other purposes.(3) Old court rolls have been admitted to prove a prescriptive right to wreck in the lord of a manor.(4) It has been questioned, however, whether ancient leases are proper evi- dence against strangers, of the boundary of the property conveyed. In Clarkson v. Woodhouse,(5) Lord Mansfield, C. J., said that the case before him differed from the case of Lord Pomfret v. Sttiith,(6) where Lord Pom- fret offered a lease by himself or his predecessor, describing tbe premises in dispute as lying within the limits of Lord Pomfret's estate, the question being on the boundaries. But on reference to the report of that case, it would seem tbat no part of the lease, upon the admissibility of which the principal question arose, applied to the place in dispute, but only the words of an exception contained in it, and therefore it was contended that the lease, not containing a demise of the lands in question, was not evi- dence of an act of ownership, but only showed that the lands were ex- cepted by a description injurious to the right of a stranger, against whom that description was attempted to be used. An old map of lands annexed to a deed seems to stand on the same footing as a description contained in the deed itself, and to be admissible in evidence, where it is part of the act by whicb property is to be con- veyed.(7) But where • a map or survey is not connected with, any act of ownership, it appears to be inadmissible evidence to prove the parcels (1) Rogers v. AEen, 1 Camp. 309. (2) Newburgh v. Newburgh, 12 Vin. Ab. T, b. 43. (3) "Woodnorth v. Cobham (Lord) Bunb. 180 ; 1 Bag. & T. 802. In 12 Vin. Ab. A, b. 66, it is said, a rental is but weak evidence, unless payment is also proved, and not sufBoient ^er se ; and by Comyns, B., 12 Vin. Ab. 90, pi. 14, rentals, without money received and paid upon them, are nothing. In Lancum v. LoveU (6 0. & P. 441), an ancient counterpart of feoffment produced from corporation muniments was rejected, because no rent had been received in respect of the property. (4) Biddulph v. Ather, 2 Wils. 23. (6) 6 T. B. 413, n. swpra. Parochial descriptions in leases are evidence upon questions of pub- lic right, where- reputation is admissible. Plaxton v. Dare, 10 B. & C. IT. (6) 6 Bro. B. 0. 440. (7) Gilb. Evid. (3d edit.) 1%, citing Teates v. Connop, Hil. Ass. l'J02. See also 1 Stra. 95, u. ; 4 N. & M. 302 ; 1 Lord Eaym. 134; Doe d. Hughes v. Lakin, 1 0. & P. 481 ; "Wakeman v. "West, T 0. & P. 479. SEC. v.] Documentary Evidence of Ancient Possession. 283 of an estate ; at least so far as respects tte principle of evidence under con- sideration.(l) Conditions of admissibiKty. Evidence of the description above mentioned can only he received sub' ject to several qualifications. In the first place, some act done with reference to the documents is required to be shown, if the nature of the case admits of it. Where, how- ever, this cannot be done, from the antiquity of the document, it will be admissible without such proof. Thus, in the case of Clarkson v. Wood- house(2), the trial of which took place A- D. 1782, several leases were produced in evidence ; the oldest of which was dated in 1680 ; and the latest of those admitted in evidence was dated in 1702 or 1703. A lease dated in 1730 was rejected. No evidence of enjoyment under these leases was given ; and as to the two older leases, the court ruled that their an- tiquity rendered it unnecessary to prove acts done, because it was impos- sible give evidence of enjoyment under such old leases. In Eogers v. Allen,(3) licenses were produced, which bore date from the year 1661 downwards to the end of the seventeenth century, and the cause was tried A. D. 1808 : Heath, J., ruled that it was not necessary to prove payment under the licenses, because, as they were of such an ancient date, it could not reasonably be supposed that evidence of such payments was still pre- served. So in the case of The Duke of Bedford v. Lopes,(4) which was an action brought to try the title to the bed of a river, after proof of a grant by Henry VIII, two counterparts of leases were produced from the duke's muniment room, comprehending the soil in question. ISTo pay- ment by a tenant was proved, nor any modem act of ownership ; but the documents were ruled by Lord Denman, C. J., to be admissible. And in the recent case of Doe dem. The Earl of Egremont v. Pulman,(5) in order to prove that the land in question was part of the estate of the earl's an- cestor, a counterpart of a lease, purporting to demise that land, was pro- duced from the ancestor's muniment room : it was dated in the ancestor's lifetime, and appeared to have been executed by the person named as lessee, but by no one else ; no proof was given of actual possession under the lease, and no privity appeared between the lessee and the defendant in ejectment ; but the court held that the document was admissible. There appears to be a material distinction between evidence of posses- sion by lessees under leases, and evidence of payment of rent. This dis- (1) Anon., 1 Stra. 95; Bridgman v. Jennings, 1 Lord Raym. Ili; B. N. P. 283; by Lord Kenyon, C. J., in Pollard v. Scott, Peake, 18. See Wakeman v. West, 7 C. & P. 4*79 ; Doe v. Beaton, 4 N. & M. 81 ; Donnison T. Blsley, 2 Eag. & T. 1396, n. ; 12 Yin. Ab. 90, pi 12. (2) 3 Doug. 189 ; S. 0., 5 T. E. 413, n. (3) 1 Camp. 311. . (4) Tried at Exeter, March, 1838, cit. 3 Q. B. 623. (5) 3 Q. B. 622. §84 Doeumentary Evidence of Ancient Possession. [oh. Vlii. tiaction is sometimes very important, where subsequent inquiries are made respecting tlie parcels of the lease. Thus, where leases of rectories include tithes claimed by the vicar, it seems to inake an important difference, whether the lessee has enjoyed the tithes claimed by the vicar, or whether he has only paid rent generally on his lease. For it would be the inte- rest of the lessee, as well as of the lessor, to have the parcels stated aB amply as possible ; and where the rights are often so intermingled as those of rector and vicar, the leases of the rectory may often, in general terms, include vicarial tithes, without any imputation of fraud, especially where common forms and precedents are often followed, as in leases of crown rectories. In tithe suits, however, ancient leases of rectories have fre- quently been admitted as evidence of the parcels, merely upon proof of rent being received, as appearing by the minister's accounts.(l) Where unexceptionable evidence of possession, referrable to the docu- ment, may reasonably be expected to be found, it is required to be shown. And proof of acting with respect to the documents which are produced as evidence of acts of ownership, is always scrupulously required (even in cases where traditionary evidence is receivable), if the document pur- port to have been made post litem motam. Thus, upon a question concern- ing the right of the corporation of Cambridge to receive toll, an award, whereby the freemen of Northampton were discharged of toll at Cam- bridge, in consideration of an annual payment by the corporation of Northampton to the corporation of Cambridge, was considered to be inad- missible in evidence, on the ground that payment of the composition had not been proved. (2) Where it cannot be expected by reason of the antiquity of the docu- ments, that any acts cotemporaneous with them should be afforded, it is still requisite, at least as far as respects the weight, if not the admissibility of the evidence, that some acts in modern times with reference to similar documents, should be proved, or that modern possession or user should be corroborative of the ancient documents. In the case of Clarkson v. Woodhouse,(3) before mentioned, other evidence of title was given besides the leases. And in Eogers v. Allen, above stated,(4) Heath, J., observed, that to give any weight to the licenses produced in. that case, it must be shown that, in latter times, payments had been made under licenses of the same kind, or that the lords of the manor had exercised other acts of ownership over the fishery, which had been acquiesced in. (1) Colfins V. Gresley, by Park, J., Derby Sum. Ass. 1833 ; by Lyndhurst, 0. B., on motion for a fieW trial: (2) Brett v. Bealas, 1 M. & M. 418, (3) 5 T. U. 412, n. ; S. C, 3 Doug. 189 ; Supfa, p. 282. (4) 1 Camp. 309 ; Sv^a, p. 282. As to the point tliat entries in ancient corporation books are not generally evidence against strangers, see Att. Gen. t. Warwick (Corporation), 4 Russ. 222 • Lanoum v. LoTeU, 6 C. & P. 441 ; Marriage v. Lawrence, 3 B, & A. 142 ; Hill v. Manchester "W. W., 5 B. & A. 876. SEC. VI.] Hearsay in case of Dying Declarations. 285 Custody of doomnenta. Anotlier qualification, to wliicli tlie admissibility of this species of evi- dence is subject, relates to the custody or depository of documents. This will be more properly considered in treating of the proof of written instrument3.(l) SECTION VI, Exceptions to the General Rule as to Hearsay, in the Case of Dying Declarations, The rule which excludes hearsay evidence has been relaxed, in certain cases, where a statement has been made by a person, since deceased, under the immediate apprehension of death. The admission of what is called a dying declaration is an exception to the general rule of evidence, inasmuch as it has not been made under the sanction of the judicial oath, and has not been subject to the power of cross-examination, It has been consid- ered that such evidence is admissible on the ground that the circum- stances, under which the information is given, are such a guaranty of its truth, as to make it safe for juries to act upon it. "Dying declarations," said Eyre, C. J., (2) "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 induced by the most powerful considerations to speak the truth : a situa- tion so solemn, and so awful," he observed, " 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." In prosecutions for murder it has been the common and ancient practice to admit as evidence the dying declarations of the person with whose mur^ der the prisoner stands charged. Limitations of admissibility. It is obvious that the principle, above laid down, would apply, though with unequal force, whatever may be the subject matter of the declara- tion, whether of a civil or criminal nature. But according to the more recent authorities, it is established, that dying declarations are receivable only upon some particular subjects of inquiry. In a modern case, (3) in the Court of Exchequer, where it was held that proof could not be admit- ted of the declarations of a subscribing witness to a deed, tending to show that he had forged or fraudulently altered the deed, the authorities for admitting dying declarations, as to a similar fact, were much considered. These authorities are two only in number, and although they had been (1) Post, VoL n, and see Index, tit Custody. (2) In "Woodcock's Case, 1 Leach, 502. See also Drummond's Case, Id. .S38. (3) Stotart V. Diyden, I ^. & W. 6X5. 286 Ofth& Admissibility of Dying Declarations. [CH. Vlir, spoken of by judges occasionally with approbation, they do not appear to be supported by the deliberate judgment of any court. In one of these cases the declarations of a subscribing witness to a bond, who, in his dying moments begged pardon of Heaven for having been concerned in forging the bond, were admitted by Heath, J.,(l) as evidence of the forgery, on the authority of "Wright dem. Clymer v. Littler,(2) (the other of the two cases above referred to), where similar evidence of a dying confession by a subscribing witness to a will had been received by Wnies, C. J., and afterwards approved of by the Court of King's Bench. These liivo cases must be looked upon as at least much shaken, if not virtually overruled, by the case of Stobart v. Dyrden above mentioned ; and it may be doubted whether dying declarations would be receivable in any civil case : except, perhaps, where the inquiry involved the cause of death of the declarant. (3) In an action of ejectinent,(4:) it was determined that the dying declara- tions of a person as to relationship between the lessor of the plaintiff and (1) Cited by Lord EUenborough, 0. J., in Aveson v. Kinnaird (Lord), 6 East, 195 ; and in Dur- ham (Bp. of) T. Beaumont, 1 Camp. 211. See also by Bayley, J., in Doe d. Sutton v. Eidgway, 4 B. & A. 55. (2) 3 Burr. 1244; S. C, 1 W. Bl 346. See 4 B. & A. 54. (3) K g. in an action of a policy of insurance, where the defence was that the deceased had ^aid violent hands upon himself. (4) Doe d. Sutton v. Ridgway, 4 B. & A. 53. Note 99. — The American cases have undergone the same fluctuations as the English, with re- gard to the particular question which dying declarations may be brought forward to elucidate. So long as the principle of admission was thought to rest merely upon the substitution of the fear of death, of spiritual punishment, and the absence of motive to falsehood, for the obUgation of an oath, no reason could be given why the testimony should be tied up to the homicide on trial. It came in, as secondary evidence generally does, upon the broad ground that the primary is lost by an accident which should never deprive the party of what is left. Accordingly, it was put with a quere, whether such declarations may not be received to support a deed (Jackson ex dem. Toungs v. Tredenburgh, 1 John, Rep. 159) ; and they were actually received from the daughter, to support an action for her seduction, at the suit of her father. M'Farland v. Shaw, 2 N. Car. Law Repos. 102, 105. So long as the testimony was left to stand on the broad abstract notion that it was secondary the analogy was too miposing to be resisted in any case. It never was, however, completel The strongest resemblance was to depositions and the viva voce testimony of deceased witnesses on a former trial. But here the secondary evidence was carefully restricted, in such a way as to secure to the party, against whom it was presented, the important right of cross-examination, and the prevention of all abuses in the mode of obtaining it. On the whole, it is plain that the rule as to dying declarations, is one of policy and necessity, arising in the particular case. It shall not be allowed to the offender to commit a homicide, and by the same act, put to silence the only witness at whose mouth he may be condemned. Upon the latter view, it has now long been settled, by a series of cases, that declarations in extremis are restricted to the trial for the identical homicide which occasioned the death of the person who makes the declarations. They are not admissible in a civil action (Wilson v. Boe. rem, 15 John. R. 286 ; S. C, Anth. N. P. 174, ; Jackson ex dem. Ooe v. Kniffen, 2 John. R. 35, per Livingston, J. ; Gray v. Goodrich, 1 Id. 95, 96, per Owriam; and see Anth. N. P. 176, n. a) I and, as expressed in another case, they can be received " only where the death of the deceased is the subject of the charge, and the oircumstancea of the death the subject of the declarations." SEC. VI.] Of the Admissibility of Dying Declarations. 287 the person last seized of the premises in question (the deceased not being a relation of the parties), could not be received. In settlement cases, dying declarations Lave for a long time been adjudged to be inadmissible.(l) The admissibility of dying declarations has been limited even in crim- inal cases ; and a rule has been laid down, that such declarations are generally admissible only where the death of the declarant is the subject of the inquiry, and where the circumstances of the death are the subject of his dying declaration.(2) Where a prosecution was for administering drugs to a woman pregnant, but not quick with child, with intent to procure abortion, her dying declaf- rations were held inadmissible, upon the ground that the death of the party was not the subject of inquiry, though the declaration might relate to the cause of the death.(3) So in trials for robbery, the dying declara- tions of the party robbed have been rejected.(4) And in a prosecution for perjury, it has been held that the dying declarations of the prosecutor (who had been shot by the defendant), could not be used in showing cause against a motion for a new trial ; nor could they have been received in evidence at the trial.(5) In one case in Ireland, upon an indictment for inurder, the dying declarations of another party, confessing that he had committed the crime, were rejected.(6) The dying declarations of the deceased person in favor of a prisoner charged with his death, seem to be as admissible for him, as they would be against him if unfavorable.(7) Belief of future state, implied. Upon the ground that dying declarations are said to be receivable, as having (from the circumstances under which they are delivered) some- thing of the sanction of an oath taken in a court of justice, the dying declarations of persons who, if living, would have been incompetent to Eex V. Mead, 2 Barn. & Ores. 605 j S. 0. cited in the text. They are not receivable on trial of an indictment for administering to a -woman in order to procure an abortion, though this might have been the cause of her death, for her death was not the subject of the charge (Rex v. Hutch- inson, note to the last case ; S. 0. cited in the text) ; nor on trial for a robbery, though the party robbed died of the violence exerted against him in its commission. Rex v. Lloyd, 4 Oarr. & Payne, 233, and note a to that case, citing two cases also referred to in the text. (On the same ground, dying declarations are not evidence of the prisoner's insanity (The State v. Spencer, 1 New Jersey, 196) ; nor is any statement, made by the deceased in regard to an independent fact, disconnected &om the circumstances or cause of the death, admissible. John- son V. The State, IV Ala. 618.) (1) R. V. Ferry Prystone, 2 East, 54; R. v. Chadderton, Id. 27 ; R. v. Abergwilly, Id. 63. (2) By Abbott, C. J., in R. v. Mead, 2 B. & 0. 607. (3) R. V. Hutchinson, 2 B. & C. 608, n. a, by Bayley, J. (4) By- Bayley, J., on the Northern Spring Circuit, 1822; by Best, 0. J., on the Midland Spring Circuit, 1822 ; and by BoUand, B., in R. v. Lloyd, 4 0. & P. 233. (5) R. V. Mead, 2 B. & 0. 605. (6) R. V. Gray, Ir. Oir. Rep. '76, byTorrens, J. (7) E. V. Scaife, 1 Mo. & R. 551. 288 Of the Admiss'ihility of Dying Deslarations. [CH. vni. take the judicial oath, from defect of religious principle, are not to be admitted. Thus, if it appear that the deceased had no idea of a future state, his declarations will be inadmissible ; for a principal ground of the admissibility of such evidence is the supposed deep impression of having shortly to render up an account to his Maker.(l) Accordingly, the dying declaration of a child, aged four years, was rejected, because it was con- sidered that at that age the child could not possibly have any idea of a fature state.(2) But when the statement is made by a child of intelligent mind, impressed with the nature of an oath, and expecting to die, the state- ment may be received.(3) Upon the same principle, the dying declarations of an attainted convict were formerly rejected, as he could not, if living, have been examined upon oath ;(4:) but since Lord Denman's Act,(5) this would no longer be a ground of objection to their admissibility. The dying declarations of a woman, who took part in an act which caused her own death, were received in evidence upon an indictment for murder charging the prisoner both as principal and accessary before the fact; (6) and it was decided, that the fact of her being particeps criminis, in the act which caused her own death, was not a valid objection to their admissibility, for the declarations of a partieeps criminis are admissible against a person indicted for a crime in which the declarant participated. The case of The King agt. Baker,(7) appears not to be quite conforma- ble with the rule above mentioned, that dying declarations are admissible only where the death of the declarant is the subject of inquiry. A pris- oner was indicted for poisoning J. K. The poison was administered in a cake, immediately after eating which the deceased was taken ill. His maid servant, who was present and had made the cake, ate some of it herself, and died of the poison. Her dying declarations (made after she knew of her master's death) as to the manner in which she had made the (1) By Park, J., in R. v. Pike, 3 C. & P. 598. (2) R. V. Pike, 3 C. & P. 598, by Park, J., and Parke, B. (3) R. V. Perkins, 2 Mo. C. C. 135 ; S. C, 9 0. & P. 395, 397 ; the ehUd was ten years old. (A child, who has not arrived at years of discretion, is not supposed capable of understanding the nature of an oath, or of entertaining such views of a future accountability as, in the prospect of present dissolution, are deemed equivalent to an oath ; and, therefore, he is not received as a competent witness on the stand, and his dying declarations are not allowed in evidence. Pennsyl- vania V. Stoops, Addis. 381. On the other hand, the wife being a competent witness against her husband on an indictment against him for violence to her person, her dying declarations may be received against him in like cases ; as, where the husband is indicted and tried for the murder of his wjfe. The People v. Green, 1 Denio, 614. If her dying declarations are irrelevant, as where she admitted herself to have been guilty of adultery, they are excluded for that reason. State V. Rash, 12 Ired. 382.) (4) Drummond's Case, 1 Leaoh, 337. (5) e&l Vict. 0. 85. (6) Tinckler's Case, 1 Bast, 354. (7) 2 Mo. & R. 53. This point was reserved for the consideration of the judges, but the pris- oner was acquitted. SEC. VI.] Inquiry as to State of Deceased. 289 cake, and tliat tlie prisoner was present at the time she made it, were ten- dered in evidence on the part of the prosecution, and objected to on behalf of the prisoner, upon the ground that the inquiry related not to the death of the servant, but to that of J. K. But Coltman, J., after con- sultation with Parke, B., expressed himself of opinion that, as it was all one transaction, the declarations were admissible. Upon this decision it may be observed, that although, with respect to the master and the maid servant who were both poisoned, the circumstances stated in the dying declaration formed one transaction, yet with respect to the prisoner they consisted of two separate criminal acts, which might have been the sub- ject matter of two prosecutions for murder; and it is with respect to the prisoner more especially, and to the bearing which the evidence may have against him, that the question of the admissibility of the delarations is to be considered. On a trial of the prisoner for the poisoning of the maid servant, her dying declarations would unquestionably be good evidence against him ; but it seems doubtful whether they are admissible against him on a charge of poisoning the master, which, though involved in the same transaction with the other poisoning, must be treated, in the course of judicial inquiry, as a matter entirely distinct and unconnected. Inquiry as to the state of the deceased. Before dying declarations can be received in evidence, inquiry must be made, whether the deceased apprehended that he was in such a state of mortality as would inevitably oblige him soon to answer before his Maker for the truth or falsehood of his assertions, or as laid down by Lord Den- man, C.'J., in a late case,(l) there must be actual danger of death, and a (1) Sussex Peerage Case, 11 CL & Fin. 108, 112. (In order to render the dying declarations of a deceased person admissible, it must be first shown that they wore made under the present apprehension of impending death, or, as it is sometimes expressed, under the consciousness of almost immediate dissolution. Smith v. The State, 9 Humph. 9; Logan v. The State, Id. 24; The State t. Thawley, 4 Harring. 5B2. Where it is shown that the declaration of the deceased was so made, it will not be rendered inadmissi- ble by showing a subsequent revival of strength in the dying person. The State v. Tilghman, 11 Ired. 513. The deceased's state of mind, in regard to his consciousness of impending death, is to be ascertained from the circumstances, as well as from what he said at the time, or what was said to him. McLean v. The State, 16 Ala. 612 ; Campbell v. The State, 11 Geo. 353. Though a man live fiftyrtwo days after (•eceiving a mortal wound, his declarations made three days before his death are admissible, it being shown that he had been informed by the physician, and had himself expressed the belief, that his wound was mortal. Oliver v. The State, IT Ala,. 587. If it appear clear that the deceased had given up aU hopes of recoveiy, the circumstance that the physician gave her hopes wiU not exclude her dying declaration. The People v. Grun- zig, 1 Parker C. E. 299 ; Id. 11, 302 ; The State v. Peace, 1 Jones's Law (N. C), 251.) Note 100. — For the general position that declarations m ariicido mortis are admissible, see Pennsylvania v. Stoops, Addis. 381. The deceased was robbed, and stabbed in several places, one of which was his bowels. He became so weak that he was brought into the city on a litter, where a surgeon dressed his wounds, and he died in a few days after. The surgeon deposed that one of the wounds received by the deceased was such as generally proved mortal The expressed opinion of the deceased, Vol. I. 19 290 Inquiry as to State of Deceased. [CH. VIII. as to his expectation of death, was not in evidence ; nor the opinion of his surgeon, as given to him ; yet, from the palpable danger of the case, the court inferred his apprehensions of deaiih, and received his dying declarations giving an account of the robbery. State v. Monaquaa, Charlt. Rep. 16. But in another case, although the -wound was quite dangerous, and plainly so, a large portion of the entrails being out, which were badly cut and wounded, the surgeon believ- ing from the first that the deceased could not live, the court hesitated to receive the declarations of the deceased until a witness had deposed to his expression of an opinion that he should not live. Kiag v. The Commonwealth, 2 Tirg. Cas. 78, 80, 81. And in another case, where the deceased was wounded and died the next day, nothing appearing as to his opinion of his ovra danger before the declarations were made, they were held inadmissible. The court said: " Decla- rations of a dying man have sometimes been received ; but then they must be the declarations of a dying man — of one so near his end that no hope of life remains ; for then the solemnity of the occasion is a good security for his speaking the truth, as much so as if he were under the obhgation of an oath. But if; at the time of making the declaration, he has reasonable prospects and hope of life, such d&larations ought not to he received ; for there is room to apprehend he may be actuated, by motive of revenge and an irritated mind, to declare what possibly may not be true." The State v. Moody, 2 Hayw. 31. In another case, the deposition of the deceased was taken immediately after he had received a dangerous wound ; but he did not plainly mention, even to his most intimate friends, that he thought there was no chance for his recovery, till three days after. The court deeming it doubtful, on the testimony, whether, vrithin the three days, he felt morally certain that he must die, refused to hear any of his declarations, except those made after that time. The People v. Anderson, N. T. 0. & T., Edwards, C. Judge, presid- ing, A. D. 1824 ; 2 Wheel. Cr. Cas. 390, 398. It is put by Evans, that the despair of the deceased may be inferred from his declarations cotemporary or previous to the statement pro- posed as evidence to the jury, or from his situation being such as necessarily to induce that impression. 2 Ev. Poth. 293, 294. And see Trant's Case, Maonally's Ev. 385. Before the Judge decides, he hears all the deceased said respecting the danger in which he con- sidered himself; and he should be satisfied that the declaration was made under an impression of almost immediate dissolution. It is not enough that the deceased thinks he shall ultimately never recover. Thus, the deceased being operated upon by a quack surgeon with a rectum bougie (May 10th), by which he received an injury, took to his bed, and died in about a week •(May llth). On the evening of the 10th, he had declared to L., a regular surgeon, that he had had such an injury in the bowels that he should never recover. The surgeon endeavored to en- courage him, really thinking him not in danger of dying ; but he persisted in saying he felt satis- fied he should never recover. HuUock, B., rejected the proposed declaration as evidence against the quack, who was indicted and on his trial for manslaughter. Eex v. Tan Butchell, 3 Carr. & JPayne, 629. And see Rex v. Callaghan, Macnally's Ev. 385. On the trial of an indictment for .the murder of Jane White, by administering corrosive sublimate, her surgeon testified thus: " I had told the deceased she would not recover, and she was perfectly aware of her danger. I told her I understood she had taken something. She said she had, and that damned man had poi- soned her. I asked her what man ; and she said Crockett. She said she hoped I would do what I could for her, for the sake of her family. I told her there was no chance of her recovery. '< Bosanquet, J. : " This shows a degree of hope in her mind. To render a declaration of this kind admissible, she must have had the impression on her mind of an almost immediate dissolution.' , Rex V. Crockett, 4 Carr. & Payne, 544. The surgeon was clear that the deceased was mortally woundedj on first seeing him; and the deceased told the surgeon he thought so, and expressed a consciousness that he should not recover to several witnesses, and was constantly at prayer in the intervals of being easier from paiu. His declarations, after this proof given, were received against the prisoner, though, to the witness who heard them, the deceased made use of expres sions indicating an expectation of surviving ; as that if his brother (the prisoner) would go off, where he would never more be heard of, he, the deceased, would forgive him; and the witness thought the deceased then expected to Uve. The declarations received against the prisoner were made a feifr hours after the surgeon had dressed the wound and given the deceased his opinion that he would die, and after the deceased had expressed the same opinion to another witness Gibson v. Commonwealth, 2 Virg. Cas. Ill, 116, 111. Immediately and on the evening after being wounded, which was eleven days before his death, the deceased declared to his nurse that SEC. VI.J Dying Declarations. 291 he was robbed and killed, and could not get the better of it, and persevered in these and the like declarations to her till his death, though a surgeon was called to him the evening after the wound, who gave him hopes of life till just before his death : but he told him there was danger. He did not express a consciousness that he must die, to the surgeon. Held, that his declarations as to the facts attending the homicide, made eleven days before his death, after his declarations to the nurse, and his declarations as to the homicide made subsequently, were admissible in evi- dence, though they were made before the surgeon told him his state was hopeless. Rex v. Mosley, Ey. & Mood. Cr. Caa 97. On the trial of an indictment against Poll, a domestic of S. Skinner, for pyisoning him, it was in evidence that he died on Thursday ; and his declarations from the Sunday previous up to his death, were offered in evidence for the state. During that interval, he was evidently sick from the effect of poison ; and stated his belief that he should die, though he was occasionally better. He said he was poisoned ; and, as he believed, by Poll, who gave him something in his food and drink. His declarations were held admissible, being made at times when he despaired of a recovery. State v. Poll & Lavinia, 1 Hawks, 442, 518, 619. But the court do not mean to be understood as sanctioning the declaration of belief && to the per- son poisoning, as proper evidence. It win be perceived that most of the doctrine stated in the text is thus re-asserted in a definite form by these cases. We see that competency is a question of fact for the court, as in other cases. They are to find upon it as the jury do upon the main case, taking into view all the cir- cumstances calculated to prove and disprove that despair of life which shall be equivalent to a sworn obUgation. In determining this, it wiH be seen that much confidence has usually been, as indeed from the nature of the question it must be, placed in the declarations and conduct of the deceased. The surgeon and third persons may look upon the case as desperate, while the mind of the deceased is still buoyant with hope. Levity and thoughtless profanity, as in Rex v. Crock- ett, is contrasted with seriousness and prayer, as in Gibson v. The Commonwealth. The appre- hension must be of almost immediate death, as held in Rex v. Tan ButcheU, not a mere despair of ultimate recovery, after lingering for a long time. One eminent writer calls it the apprehen- sion of " impending death." 2 Ev. Poth. 293. " Have I not hideous death within my view, Retaining but a quantity of life ; Which bleeds away, even as a form of wax Eesolveth from his figure 'gainst the fire ? What in the world should make me now deceive, Since I must lose the use of all deceit 7 Why should I then be false ; since it is true That I must die here, and Uve hence by truth ?" [Xing John, Act V, Scene PV. The above lines from Shakspeare have been more than once quoted (see 3 M'Cord, 231), as presenting the true standard of a witness allowed to testify through his dying declarations. The supposed speaker (Count Melun) is represented as in truth mortally wounded, and shortly after dying. In the meantime he is not only certain of ultimate death — this is not enough ; every valetudinarian, every person in health is conscious of that ; — ^but he is strongly persuaded that death is rapidly approaching. It is so near that all motives to falsehood are superseded by the strongest inducements to strict veracity; and hence he urges an implicit belief of the disclosures he had made, although they pointed to a most diabolical conspiracy. See, also, Swift's Ev. 124. Upon this question of fact, no rule can be adopted which will reach every variety of detail. The court try the competency of the deceased as the jury do his credibility ; and the decision in either case, on a conflict of testimony, must be final. In one case, the deceased, though she had not expressly intimated a word of apprehension to her aunt, who attended her, or any other person, yet detailed shocking circumstances concerning a rape which had been committed upon her ; and soon after died of the injury. It appearing that she had, previous to this detail, confessed, been absolved, and received extreme imction from a priest, this was considered sufficient evidence that she had given herself up to die soon ; and the declarations were received. Rex v. Minton, Macnally's Ev. 386. These declarations, made antecedent to the stroke which caused the death, are, of course, not ad- missible. Maryland y. Ridgley, 2 Harr. & M'Hen. 120. _ 292 Inquiry as to State of Deceased. [CH. vill. full apprehension at the time of such danger, in order to fender such declarations admissible after the death of the party. In this inquiry, as to the admissibility of the proposed evidence, it is not necessary that the deceased should have explained by any expres- sions, whether he thought himself likely to live or die. In Woodcock's Case,(l) it was deemed sufficient, for giving credit to the declarations, to show that the deceased had been mortally wounded, and was in a condi- tion which rendered almost immediate death inevitable ; and that she was thought by every person about her to be dying. It was considered a proper inference from these circumstances, that she must have felt the hand of death, and must have considered herself as a dying woman. The same doctrine was held in .John's Case,(2) the court being of opinion, that if it might reasonably be inferred from the wound or state of illness of a dying person, that he was sensible of his danger, his declaration would be good evidence. In The King agt. Bonner,(3) Patteson, J., said, that it is not necessary to prove expressions of apprehension of immediate danger. In the case of The King agt. Spilsbury,(4) it was proposed to give in evidence the dying declaration of a deceased person, and it was proved that, about the time of making the declaration, the deceased was asked, if he thought he should recover, and how he was ; to which he answered, that he thought he should not recover, as he was so very ill. He had been previously insensible, but remained sensible for an hour, and died the next day. The evidence was rejected by Coleridge, J., on the ground that he did not feel fully convinced, that the deceased had no hope of recovering.(5) Various other questions of competency may doubtless arise, after the court shall have deter- mined favorably upon the witness's condition. If the statement come from the deceased as mere matter of opinion or belief (State v. PoU, swpra; 1 Ev. Poth. 293 ; 4 Stark. Ev. 461 ; Pos/, of the text, and the note), it would be inadmissible. So if the deceased be disqualified by conviction of an infamous crime, his declarations cannot be heard. Indeed, he is to be treated, not only in respect to competency, but (as we shall see) credibility, the same as a witness proposed to be sworn upon the stand. But it has been held not an unqualified ground for excluding the decla- rations, that they are answers to leading questions. Where the deceased lay, the greater part of the interval between the wound and his death, unable to speak at aU, and when able, only to utter a word or two, he was asked, Did P. V. (the prisoner) strike you first ? to which he an- swered, yes, sir ; Did P. V. stab you ? to which he answered, yes, sir : these declarations were held admissible. Vass v. The Commonwealth, 3 Leigh, '786. He was immediately asked a fourth question, which he was unable to answer; but it not appearing that the other answers were intended to be qualified by him, in which purpose he was interrupted, they were received, though it would have been otherwise had this appeared. Id. (1) 1 Leach, 503. (2) 1 East, 351. See, also, Dingler's Case, 1 Leach, 504, n. (3) 6 0. ft P. 386. See, also, R. v. Tan Btttchell, Id. 631; R. v. Mosley, 1 Mo. 0. 0. 97. (4) 1 C. & P. 18t. See also R. v. Megson (9 0. & P., 418), where the statement was rejected, the abandonment of «all hope of recovery not being proved satiafaotorily to the judge. (5) See also R. v. Perkins, 9 C. & P. 395 ; S. 0., 2 Mo. C. C. 135. SEC. VI.J Inquiry as to State of Deceased: 293 Interval before death. With respect to the interval of time which may have elapsed between the uttering of dying declarations and the moment of death, there appears to be no rule founded on this circumstance alone : nor is it consistent with the principle upon which dying declarations are received in evidence (which, as we have seen, depends upon the state of the declarant's mind), that such declarations should be excluded, if not made within any precise limits of time. It ought, however, to appear that the deceased believed his dissolution to be impending. And unquestionably the length of time may be a material consideration, in forming an inference as to the state of mind of the deceased, with respect to his expectation of death at the time of making a declaration, especially if the deceased ha^ not expressed his sense of his own situation. In Woodcock's Case,(l) Eyre, C. B., lays stress on the circumstance that the deceased was in a situation which rendered almost immediate death inevitable. And in The King agt. Van Butchell,(2) Hullock, B., rejected a declaration made on the 10th of May, the deceased having died on the 17th, and having stated, before making the declaration in question, that he felt satisfied he should never recover. HuHock, B., is reported to have said, that " the principle on which declarations in articuh mortis are admitted in evidence, is that they are under an impression of almost immediate dissolution. A man may receive an injury, from which he may think he shall ultimately never recover, but still that would not be sufficient to dispense with an oath."(3) In The King agt. Bonner,(4) dying declarations of a person were received, which were made on a par- ticular day, when the deceased thought he might have died, and it was said, that the circumstance of his having lived three days longer did not alter the state of things on the day when the statement was made. Expressions of deceased. Upon an inquiry as to the admissibility of a dying declaration, it is necessary to hear all that the deceased has said relative to his situation, in order to ascertain whether he had that impression upon his mind, which wiU. make his declarations admissible in evidence.(5) In The King agt, Crockett,(6) notwithstanding a surgeon told the deceased that there was no chance of her recovery, yet, as she said that she hoped the surgeon would do what he could for her for the sake of her family, the judge rejected the declarations of the deceased, saying, that her expressions (1) X Leaph, 502. (2) 3 0. & P. 631. (3) The expression, "almost immediate," is used by Boganquet, J., in E. v. Crockett, 4 C. & P. 544. (4) 6 0. * P. 386. (5) By HuHock, B., 3 0. & P. 631. (6) 4 0. & P. 544. 294 Inquiry as to State of Deceased. [CH. Till. showed a degree of hope in her mind. In The King agt. Fagent,(l) it appeared that the deceased had expressed an opinion that she should not recover, and after that, she made a declaration, but subsequently, on the same day, she asked her nephew if he thought she would " rise again." It was considered that the declaration was not receivable, because the subsequent question showed that she entertained hopes of recovery. In Errington's Case, (2) the deceased, before making a declaration, had said he thought himself in great danger ; but Patteson, J., considered this expres- sion did not necessarily exclude the supposition, that the deceased might nevertheless have entertained some hope of recovery, and the declaration was consequently rejected.(3) Representations to deceased. Eepresentations made to the deceased are often of importance, in inquir- ing as to the opinions he entertained of his own danger. In the case of The King agt. Welborn,(4) upon the trial of the prisoner for the murder of a woman, by inducing her to take poison, the declaration of the de- ceased was made to an apothecary within an hour of her death, in conse- quence of the apothecary telling her that he must know what she had done, and that she would not live twenty-four hours, unless proper relief was afforded. The majority of the judges were of opinion that the declaration was inadmissible, because the deceased was given to understand, that if she told what was the matter with her, she might have relief and recover. So in the case of The King agt. Christie,(5) where the deceased asked his surgeon if the wound was necessarily mortal, and was told in answer, that persons had recovered under like circumstances, but that the case was one of extreme danger : a statement made immediately after this conversation was rejected by Abbott, G. J., and Park, J., on the ground that the language of the surgeon was calculated to keep up in the mind of the deceased some expectation of recovery. In the case of The King agt. Mosley,(6) the deceased received the injury, of which he died, on the evening of the 30th of September, and died on the evening of the 10th of October following. On the first evening, and every day until his death, he complained to the nurse who attended him, that he should never get better. But during his illness he never expressed (1) IG.kV. 238. (2) 2 Lew. 0. 0. 148; S. C, 2 Russ. by GreaTes, 756. (3) See R. v. Simpson, before Bayley, J. (1 Low. 0. C. 78), where a, deolaration made under nearly similar oircumstanceB was admitted. This case was cited in Errington's Case. For other instances in which declarations hare been rejected upon the ground that the expressions used by the deceased did not indicate an utter abandonment of hope, see R. v. Howell, 1 Car; & K. 689 ; R. V. Murphy, Ir. Cir. Rep. 38. (4) 1 East, 358. (5) See a brief report of this point in 2 Russ. Cr. & M. by Greaves, 754. See also R. v. Per- kins, 9 C. & P. 395, 397 ; 2 Mo. C. 0. 135. (6) 1 Mo. C. C. 27. SEC. vi.] As to the Form of making the Declarations. 295 any opinion, either of hope or apprehension, to his surgeon. The surgeon informed him that his case was hopeless, for the first time, on the morning of the 10th of October. The surgeon did not himself consider the case quite hopeless till that day, and had always previously told the deceased that there was no danger, but there were hopes of his being better. The judges were unanimously of opinion that the declarations of the deceased, made by him after he was brought home the first evening, after he had said that he should not get better, and also at different times during his illness, and previous to the surgeon's communications to him of his hope- less state, were properly received in evidence. It may be observed, this case is distinguishable from the two preceding, on the ground that there was positive evidence that the conviction of the deceased, as to his own impending death, had not been altered by the representations of the surgeon. In the case of The King agt. Hay ward, (1) after a surgeon had examined the wound of the deceased, the deceased inquired whether he was in dan- ger ; to which the surgeon answered that he was, and that the only chance of his living was keeping himself quiet ; upon which it was contended? that the declarations made by the deceased, were not made at a time when every hope in this world was gone, and when the party was aware that he must inevitably answer soon for the truth or falsehood of his statements ; but that, upon the surgeon's statement, he must be taken to have had some hope of recovery. On this, Tindal, C. J., observed, that any hope of re- covery, however slight, existing in the mind of the deceased at the time of making the declarations, would undoubtedly render the proof of such declarations inadmissible. But upon the further examination of the sur- geon, it appeared that before the declarations were made on the following evening, the deceased knew that he must die, and that the magistrate, previously to the receiving of his declarations, desired him, as a dying man, to tell the truth ; and that the deceased replied, he would. Upon this further evidence, the declarations of the deceased were held to be admissible, and were laid before the jury.(2) Form of dedaration. With regard to the manner in which a dying declaration may become 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 the same effect, in point of admissibility, as declarations not made with the same sol- emnity.(3) It is no objection, in point of law, to a dying declaiation, that it was (1) 6 C. & P. 160. (2) See also Ashton & Thomeley's Case, 2 Lew. C. 0. 14T. (3) R. V. ■Woodoook, 1 Leach, 502. 296 Their AdmissMUty, a Question of Law, [CH. VIii. made in answer to (Questions. (1) It appears, from Woodcock's Case,(2) that the declaration is not inadmissible, though obtained by pressing and by questions. The same appears from The King agt. Eeason.(3) But such solicitations must naturally weaken the effect of the evidence. Dying declarations have been admitted in evidence, although it appeared that the deceased made a subsequent statement, which had been taken in writing before a magistrate, but which written examination was not ready to be produced at the trial. This point was much discussed on the trial of Beason and Tranter,(3) under the following circumstances. The deceased Stated the particulars of the injury which occasioned his death, at three several times in the course of the same day, with an interval of about an hour between each ; the first and last account had not been written ; the second was reduced into writing in the presence of a magistrate by the same person to whom the former account had been given ; this written statement was retained by the magistrate, but as he had removed to a dis- 'tant part of the country, and it was not known to what place, the original was not produced, and an examined copy was rejected. An argument then ensued with respect to the admissibility of the first and third state- ments of the deceased. Pratt, C. J., was of opinion, that evidence of the first and third statements ought not to be received, considering all of them as statements to the same effect, and forming one entire narration, of which the written examination was the best proof. But the other judges were of a different opinion ;(4) they held that the three accounts given by the deceased were distinct facts, and that there was no reason to exclude the evidence as to the first and third declarations, because the prosecutor was disabled from giving an account of the second. The witness was therefore directed to repeat his evidence, leaving the examination before the justices out of the case ; and the first as well as the third statement was admitted. When the declaration has been taken down in writing and signed by (1) K. V. Fagent, 1 G.kV. 238. (2) R. V. Woodcock, 1 Leach, 502. (3) 16 How. St. Tr. 31 ; S. C, 1 Stra. 499. (In several of our states the organic law gives to any person accused of crime the right to confront the accusers and witnesses, and impUedly confers upon him the right to cross-examine such witnesses. Under this elementary principle of law, the question has been raised whether dying declarations can be proved against the accused, who has had no opportunity to examine the person in relation to them ? And it has been adjudged that the admission of such evidence ia not in conflict with the provision in question : the witness proving the dying declarations is confronted with the accused, and the declarations of the deceased, which are in many oases the only evidence of the crime, are proved as facta, like the execution of a written instrument. State V. Tilghman, 11 Ired. 513. So, also, the provision of the U. S. Constitution, declaring that "in all criminal prosecutions, the accused ahoJl be confronted with the witnesses against him," is satisfied if the witness swearing to the declarations of the deceased is confhjnted with the accused. Campbell v. The State, 11 Geo. 353.) (4) See 1 Stra. 500. The report in 16 How. St. Tr. differs in some respects upon this point. SEC. VI.] Their Admissihility, a Question of Law. 297 the deceased, it has been held, that neither a copy of the writing, nor parol evidence of it, can be received.(l) Declaration only as to facta. The statement made by the deceased must be such as would be receiv- able, if he were alive and could be examined as a witness ; any declaration, therefore, upon mere matters of opinion, as distinguished from facts, would not be receivable.(2) It has been previously stated, (3) that the question, whether a dying declaration is admissible in evidence, is a question exclusively for the con- sideration of the judge ;(4) upon the principle that the question, whether any particular piece of evidence be admissible, is always to be determined by the judge. It has been thought by some, that as the solution of this question depends on a preliminary investigation oi facts, it would be much more within the ordinary province of juries than of judges.(5) If the jury were to decide the question, whether the statement of the deceased (1) R. T. Gay, 7 0. & P. 230. And see Trowter'3 Case, 12 Vin. Ab., 118 ; B. v. Reason, ut supra. The correctness of these decisions wiU be better examined after a consideration of the authorities in the chapter upon Secondary Evidence, to which they more properly belong. (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 unwritten testi- mony. It may be received in evidence (11 Geo. 353) ; and where the statement is not reduced to writing,- the witness may state the circumstances, and detail the exact language of the deceased ; or, if he cannot do that, he may state the substance of what he said. Ward v. The State, 8 Blackf 101. If the witness reduced the dying declarations to writing at the time, njani- festly the writing should be produced and read. The State v. Cameron, 2 Chand. (Wis.) 172. If not made at the time, it is in the same case as any other memorandum made by witness to assist his memory. And when reduced to writing and signed by the deceased, it is admitted in evidence on the same principle and under the same circumstances as verbal declarations. OoUier v. The State, S.Eng. (13 Ark.) 676 ; Campbell v. The State, 11 Geo. 353. Though the statement of the deceased be written and signed, and sworn to ex parte, it is not received in evidence against the prisoner, unless it was made m arrUaiilo mortis. CoUier v. The State, supra) (2) R. V. Sellers, Car. Cr. L. 233. (3) S'wpra, p. 5. (4) See by Lord Ellenborough, C. J., in R. v. Huoks, 1 Stark. R. 523 ; by all the judges in John's Case, 1 East, 357 ; and in Welbom's Case, 1 East, 366. And see R. v. Van ButoheB, 3 C. & P. 631 ; R. V. Crockett, 4 C. & P. 544, and all the more modem cases. (As in other cases, the question as to the admissibility of the evidence is addressed to the court. Smith v. The State, 9 Humph. 9 ; Lambeth v. The State, 23 Miss. (1 Cushman)( 322 J State V. Rash, 12 Ired. 382. Proof of an incidental fact, in dispute between the accused and the deceased, may be given (Lambeth v. The State, 23 Miss. (1 Cushman), 322) ; so in regard to an attempt to break jail. Farming v. The State, 14 Mis. 386. The court decides whether the testimony is competent, is admissible ; and the jury are to determine what credibility the evi- dence is entitled to. The State v. Arnold, 13 Ired. 184; McLean v. The State, 16 Ala. 672.) (5) The question was left to the jury by Eyre, C. B., in Woodcock's Case, 1 Leach, 502. But the judge so far decided the point of admissibility, as to receive the evidence, directing the jury to reject it, if they came to a particular conclusion respecting certain facts. See remarks of Sir D. Evans, 2 Pothier, 293. And see Campbell's Case, cited by Parke, B., in Bartlett v. Smithy 11 M. * W. 486 ; Supra, p. 5. See also the observations of Alderson, B., in Ashton's Case, 2 Lew. C. C. 147. 298 Their Admissibility, a Question of Law. [CH. viil. be what is called a dying declaration, it is probable tbat tbey -would most commonly decide it in the affirmative; there being generally a strong feeling of sympathy for the deceased, against the prisoner, excited by the circumstance of the declarations of a dying man, brought forward against the person standing before them, charged with his murder. But the judge is free from that feeling ; his sympathy is engaged for the attainment of truth, and the equal administration of justice. The question, therefore, is more likely to be well and truly decided by the judge than by the jury. It is often an anxious, some feel it a painful, question, which the judge has to decide :(1) but that very feeling is favorable to a right decision, and may be used as an argument for the soundness of the existing rule. This species of proof has been spoken of as an anomaly, and contrary to all the general rules of evidence, yet as having, where it is received, the greatest weight with juries. It is an exception to the general rule, inasmuch as the declaration was not made upon oath, and not subject to cross-examination. But when it is considered against whom it is pro- duced as evidence, under what circumstances it must be made, and the limits as to its admission ; and, further, that the unconditional exclusion of this kind of evidence would often be the exclusion of truth, it will perhaps be thought, that the exception which has been made is as sound and just as the general rule itself. Effect of dying declarations. With respect to the effect of dying declarations, it is to be observed, that although there may have been an utter abandonment of all hope of recovery, it will often happen that the particulars of the violence to which the deceased has spoken, were likely to have occurred under cir- cumstances of confusion and surprise, calculated to prevent their being accurately observed. The consequences also of the violence may occa- (1) See by Coleridge, J., in R. v. SpUsbury, 1 C. & P. 190. Lambeth t. The State, 1 Cushman R. 322. " The awful sense of the party making the deda- rationa, and his belief in Iiis immediate and impending dissolution, are considered by our law as equivalent to the sanction of an oath. If the declarant, by reason of infancy, or imbecility of mind, tender age, or a disbelief in a future state of accountability, would have been excluded as » witness while living, his dying declarations would, for like causes, be rejected by the court." 23 Mississippi, 322. In Noel Green v. The State of Missouri, this instruction, given to the jury on the trial, was held correct: " The dying declarations of a person who has been killed, if made with regard to the circumstances which produced his death, are to be received with the same de- gree of credit as the testimony of the deceased would be, if examined under oath as a witness." 13 Missouri, 382. It would be more accurate to say that such testimony is admissible in evi- dence, and that it is for the jury to weigh the testimony before them. Thus, if it be proved that the deceased said " A. B. has shot me or has killed me ;" it is for the jury to find from that and the other testimony in the case, whether the deceased intended to state a fact within his own personal knowledge, or a mere inference from other facts. In the latter case the declaration should have no weight whatever with the jury. The State v. Arnold, 13 Ired. (N. C), 184. Ordinarily, the declarations must concern the transaction and constitute what is considered a part of the res gestae to render them admissible in evidence. McLean v. The State, 16 Ala. 612 (N. S.) SEC. VI.] Effect of Dying Declarations. 299 slon an injury to the mind, and an indistinctness of memory as to the particular transaction. The deceased may have stated his inferences from facts, concerning which he may have drawn a wrong conclusion, or he may have omitted important particulars, from not having his attention called to them. Such evidence, therefore, is liable to be very incomplete. He may naturally also be disposed to give a partial account of the occur- rence, although possibly not influenced by animosity or ill will. If or is it to be forgotten, that animosity and resentment are not unlikely to be felt in such a situation. The passion of anger, once excited, may not have been entirely extinguished, even when all hope of life is lost. Such con- siderations show the necessity of caution in receiving impressions from accounts given by persons in a dying state, and the importance also of inquiring into their manner and deportment at the time.(l) (1) Note 101. — After the testimony shall have been received as competent, its credibility is yet fully open to the observations of the counsel and the court, and the consideration of the jury. An Irishman and his wife were seen riding in a wagon, he striking her with a stick. On stopping after a few miles, the wife was taken ill, and died within a few hours, having declared that her husband had, by flogging her, caused her death. She expressed a confidence that she must shortly die, and an anxiety that the husband should be pursued and punished. The declarations of the deceased were received against the husband on the trial, for the murder of his wife, and the jury convicted him. On his case being presented to the governor (Throop), and on his excel- lency conferring with his judicial counoU, the prisoner's sentence was, on a question of law, com- muted for punishment in the stare prison, as for manslaughter in the first degree. But the coun- cil also expressed themselves dissatisfied with the declarations, as probably indicative of a quar- rel, hard feeling, and perhaps malice on the part of the deceased, and would, most likely, have recommended an absolute pardon, had it not been for ether strong evidence in the cause, which was nearly able to sustain the conviction of itself. The People v. Mason, Saratoga Oyer and Terminer, Nov. 1831, Cowen, C. Judge, presiding. In making up their minds on the credibiUty of these declarations, the jury have been allowed to travel over the same ground which the court had occupied in seeing whether it was competent. Trant's Case, Macnally's Ev. 385. Sir "W. D. Evans (2 Ev. Poth. 294), supposes that in John's Case (1 East's P. C, o. 2, § 24), the judges meant to deny this right, when they declare that it ought not to be left to the jury to say whether the deceased thought she was dying or not. Per- haps that was said, though the expression is certainly quite general, with a view to the question of competency merely. It was very strong to say that the jury might not finally conclude, and the deceased labored under no apprehension of death, when they came to measure her credibility; and we should think with the learned commentator (2 Ev. Poth. 295), that it is without the support of analogy. Though the court should receive a witness as compe- tent in his religious principles, yet he might, it is presumed, be so far impeached as to destroy all credibility, and warrant the jury finally in saying that he was destitute of religious principle. So should the expectation of death appear, on the whole, to have been affected for the purpose of revenging a quarrel in the pursuit of the offender, might not the jury make great deductions from credibility, though competency had before he^n prima facie made out ? Other considerations are also due to this question of the declarant's credibihty. " Strongly as his situation is calculated to induce the sense of obligation, it must also be recollected that it has often a tendency to obliterate the distinctness of his memory and perceptions ; and, therefore, whenever the accounts ' received from him are introduced, the degree of his observation and recollection is a circumstance which it is of the highest importance to ascertain. Sometimes the declaration is of a matter of judgment, of inference and conclusion, which, however sincere, may be fatally erroneous ; the oiroumstauoes of confusion and surprise, connected with the object of the declaration, are to 300 Exception, when against Interest [CH. vill. The remarkAefore made on verbal statements, heard and reported by witnesses, applies equally to dying declarations, namely, that they are liable to be misunderstood and misreported from inattention, from mis- ■understanding, or from infirmity of memory. SECTION VII. Exceptions to the General Rule as to Hearsay, in cases where Declarations have heen made hy Persons, since Deceased, against their Interest. Another exception to the rule excluding hearsay evidence has been established in modern times, in the case of certain declarations and entries made by persons since deceased. This exception applies to a description of facts, the evidence of which, being usually confined to the knowledge of a few persons, would frequently be lost, if the strict rule, which ex- cludes hearsay evidence, were enforced. And it will be seen, that by the qualifications under which this kind of evidence is admitted, many of the general objections to hearsay evidence are obviated. This subject will be conveniently discussed, by considering, first, those declarations and entries whiqh are receivable on the ground of their operating against the interest of the persons making them; and, secondly, those which are receivable on the ground of their being cotemporaneous entries in the ordinary course of duty or employment. The two divisions, however, are intimately connected with each other. General rule. It is a rule of evidence clearly established, that declarations of persons since deceased (under which term of declarations, all written statements and entries are intended to be comprehended), are admissible, where those persons are to be presumed conusant of the subject matter of the declara- tions, and where their declarations apparently operate against their own be oonaidered with the most minute and sorapulous attention ; the accordance and consistency of the fact related, with the other facts established by evidence, is to be examined with peouUar ciroumapeotion, and the awful consequences of mistake must add their weight to all the other motives for declining to allow an implicit credit to the narrative, on the sole consideration of its being free from the suspicion of willful misrepresentation." 2 Ev. Poth. 293. Mr. Starkie, after quoting these remarks of Sir Wm. D. Evans, with approbation, adds, "that this seems to be the only instance in which evidence is admissible against a prisoner who has not had the power to cross-examine, an anomaly, which in itself calls for great caution and cir- cumspection in the use and application of such evidence. Finally, it has never been received except in cases of murder, where if the dying person were certain as to the author of the vio- lence ; yet, in the case of a quarrel and conflict, he might be under a. strong temptation to give a partial account of the transaction, although all motives of personal hostility had ceased. In other oases, it is far from improbable that he would attribute the fact to some person whom he suspected to be his enemy, when, if his grounds for supposing so could have been investigated, they might have turned out to be very unsatisfactory." 4 Stark. Bv. 461. SEC. vii.J Or in the Course of Duty. 301 interest, -whether pecuniary or proprietary.(l) It is prBsuToed, where declarations are made under these circumstances, thalt 'they are entitled to (1) By Plumer, M. B., in Short v. Lee, 2 J. & "W. 464 ; by Bayley, X, in Doe d. Eeece v. Rob- Bon, 15 East, 34 ; by Parke, J., in Middleton t. Melton, 10 B. & C. 328. See also Higham v. Ridgway, 10 Bast, 109 ; The Sussex Peerage Case, 11 CI. & Fin. 103, 114. Note 102. — (And in this country ; Pike v. Hayes, 14 N. Hamp. 19 ; Smith v. Powers, IB Id_ B46 ; 4 Id. 213 ; Highley v. Bidwell, 9 Conn. E. 447 ; St. Clair's Heirs v. Shale, 20 Penn. State R. 105 ; Pearce v. Jenkins, 10 Ired. (N. C.) 355 ; Thomas v. Degraffenreid, IV Ala. (BT. S.) 602, 216.) The general principle that the entry of a deceased person, whereby he charges himself, with the extension of that principle by the courts, was considered by Baylies, J., in Chase v. Smith, 5 Verm. Rep. 558, 559. "We propose here to notice a few cases on the subject of receiving as evidence the entries of third persons, whereby they discharge demands due to them from others. Where such third per- sons are dead, the English authorities cited by our author are pointed and uniform that the entry shaU be received ; and have been, and doubtless wUl be, followed with equal uniformity by the American eourts. Thus, in an action for money paid by the plaintiff as surety for the defendant on their joint note, it appeared that both parties had been sued on the note, and a judgment ob- tained in favor of the payee, by Mr. Taylor, as attorney. He having died a few days before the trial of the present action, his oertifieate was received, showing what, part of the judgment was paid by the principal, and what by the surety. Thompson v. Stevens, 2 Nott & M'Cord, 493. The turning point in the admission of the entry in these and the like cases is, that the person who made the entry is dead. Being dead, the entry in discharge proves not only the simple fact of payment, so as to extinguish the debt, but may be received to every incidental matter stated in the declaration. Thus, the entry in the books of the midwife, stated in the text, proved not only the payment, but the time of the birth. The entry of Mr. Taylor (in Thompson v. Stevens, swpra), proved not only the payment, but by whom it was made, and on what account, distin- guished between the principal and the surety. And see Mr. Heald's brief in note 5 to the case of Barker v. Ray, 2 Russ. Rep. 31. Far different is this matter, where the declarant is alive. Thus, in an action by one surety against another, for contribution of money paid by the plaintiff on a bond to West and others, after the plaintiff had proved the payment, the defendant insisted that, before the plaintiff had paid, the principal had discharged the debt, so that the plaintiff had paid in his own wrong. To show the previous payment, the defendant proved that the principal had paid money to the obligees, and then offered to prove the admission of West, one of the obhgees, that such payment had been made on account of the bond. It was objected that West should be called, and the ob- jection sustained. Parke, J., remarked, that what West said at the time of the payment, might be received as a part of the res gesice ; but any declaration made after payment, upon what ac- count he received the money, is no evidence against the plaintiff. His unsworn declaration can- not bind any interest of the plaintiff. Dunn v. Slee, Holt's N. P. Rep. 399. And a mere oral declaration of this character, coming from the creditor, even after his decease, would be inad- missible. In a hke action for contribution, the defendant offered to prove, by the creditor's ac- knowledgment, she being dead, that the defendant had paid $300 of the money as surety. This was offered in order to reduce the amount of contribution. The fact of payment, or by whom, or on what account made, was not offered to be proved in any other way. The evidence was re- jected as hearsay. The court said such admissions ought not to be received at all, except against the party making them, or those clauning under him. Thomas v. Thomas, 2 J. J. Marsh, 60, 64, 65. In a similar action, a receipt for the moneys, signed by the attorney on record, of the creditor who had sued and obtained judgment against the sureties, was denied as evidence be- tween the latter, though offered merely to show the payment of the money, the attorney being stUl alive. Warner v. Price, 3 Wendell, 39T, 398, 400. The receipt was obviously no better evidence than if made by the party instead of his attpmey ; it would be prima fade evidence against the former, but as between the sureties, or between them and their principal, was no more than a written statement, without oath. As was said on another occasion, when a 802 Exception, when against Interest [CH. vill. letter of the alleged receiver of goods on commission was produced against the defendant (who was sued for having fraudulently recommended the receiver as credit worthy), acknowledging the delivery of the goods, " collusions might be formed between plaintiffs and their witnesses, who might easily be induced to make declarations in letters, which they would be afraid to verify on oath in open court. Per Tilghman, C. J., in Longenecker v. Hyde, 6 Bin. 1, 2. In assumpsit, for goods sold to the defendant's wife, who was entitled to a separate maintenance, payable by the defendant to trustees, the material question was whether the maintenance had been regularly paid. To show this, the receipts of the trustees were offered in evidence by the defendant. Held inadmissible ; and per Cwiam, " A man's receipt is not evidence to prove a payment against a third person. Those who gave the receipts should have been called." Cutbush v. Gilbert, 4 Serg. k Eawle, 551, 556. In trover, for goods distrained, the plaintiff insisted that he was tenant of John Brown, and not of the defendant, Hugh Brown ; and showed that the payment of rent had always been to John. To show that John had received the money as the defendant's agent, the latter offered John's account of the payments rendered by him to the defendant. Held, that John being alive, should be called ; and the account was rejected. Spargo v. Brown, 9 Bamw- & Cressw. 935. ^ In another action, it appeared that Beaman had, with three others, signed a note to the Bank of Rutland. He insisted that he was their surety ; and to prove that he paid the money, produced and offered in evidence the receipt of the cashier, indorsed on the note, stating that he (Beaman) had paid the money. The judge refused to receive this, as evidence either of payment or of the person who paid, there being no proof that the cashier was dead ; indeed, it was admitted that he was living, and but a Utile way off. And afterwards, on motion for a new trial, the judge re- fused it. Beaman v. Cushman et al., Washington Circuit, June, 1833, before Cowen, Circuit Judge, who refused the motion for a new trial, at his next term, August, 1833. The general rule, therefore, is, that certificates, receipts, or other admissions of payments, made by persons other than the party to the suit in which they are offered, cannot be received ; but such payments must be proved by a witness. Cluggage's Lessee v. Swan, 4 Binn. 150. 154. Accordingly, the certificate of a living surveyor, that he had received his fees of survey, being offered to affect a party in a suit with which the surveyor had no concern, was held inadmissible. Id. And the admission of the plaintiff's agent to collect the money, that he had made the col- lection, is no evidence against his principal. Davis v. "Whitesides, 1 Dana's Rep. 1'77. It cannot be denied, however, that the rule has been avowedly departed from in one or two cases. Thus, where one Sherman authorized Crosby to settle a suit brought against the former by Bennet, and pay the money to be found due on the settlement ; in a suit between the two former, wherein Crosby claimed the money as paid by him on the settlement, a receipt for the money as paid on the judgment in the cause signed by Bennet, was admitted as evidence of tlie settlement and payment, to charge Sherman. Sherman v. Crosby, 11 John. R. '70. The court say the receipt ^as prima facie evidence of the demand and payment; and it lay with Sherman to impeach it. Of this case it should be remarked that there was no pretence that Bennet was not alive, and within the jurisdiction of the court. He stood as creditor, and Crosby paid the money to him at the request of Sherman. The amount of the decision is, that m all actions for money paid, the receipt of the payee, though he be alive, shah be admissible to charge the de- fendant with the fact of payment. Bennet was not an agent, nor a joint party with Sherman either on the record or as having a common interest; the receipt might or might not have been a part of the res gestce, but the latter did not appear, for no act was shown to which the written declaration would attach. To put it on the latter ground, would, therefore, be a plain instance of the petitio principii. In a word, there seems to be no instance, if we except the next case mfra, within which Sherman v. Crosby can be brought. It would operate to reverse the entire rule laid down by Tilghman, C. J., in Cluggage's Lessee v. Swan, supra. Receipts and certificates of private persons would become substitutes for their sworn testimony. In actions for money paid, this new kind of written evidence would be the universal, because the ready medium of proof; which may, according to Tilghman, C. J., supra, be coUusively introduced ; and, we may add, amended, like a notary's certificate to charge an indorser, or a justice's exempUflcation of his proceedings, till it shall be fuU and plain to the purpose. It would be a convenient mode of proof for fraudulent purchasers of property, under pretence of having paid large debts for the insolvent, or paying him a large consideration. Both the time and the amount of payments are SEC. VII.] Or in the Course of Duty. 303 credit, because the regard whicli men pay to their own interest, may safely be considered as a sufficient guaranty against tlieir prejudicing generally of great consequence in such cases ; and the strictest rules of evidence can with diffi- culty guard against imposition. We mal5;6 these remarks, not only because the case of Sherman V. Crosby is imposing in itself, decided as it was by a tribunal of acknowledged ability ; but be- cause we think it does not stand alone. In another case, the plaintiff sued for passage money to Europe, paid for the defendant's testator, and the captain's oral admission made about the time the testator sailed, was received as proof of the payment. The captain was dead, and the court below put it on this ground. On error, the Court of Appeals repudiated that principle, and said, whether the captain was dead or alive, the testimony was admissible, being made by one. able to bind himself by a receipt or acquittance, and made too about the time of the testator's sailing. If it were to stand on the ground of the captain s death, perhaps the court would require that it should have been in writing. Holladay, Ex'r, v. Littlepage, 2 Munf. 316. This is doubtless a safer case than Sherman v. Crosby. The captain being dead, it wants only the form of a written entry to bring it within the English rule. But whether dead or living, the oath of the hearer could fix the time when the declaration was made ; and prevent imposition in that particular. This case, however, fails as to any support from the declaration being a part of the res gestx. Proof aXivmde, that money was paid, and that the declaration was cotemporaneous with the pay- ment, would alone give it that character, so as to bring it within the suggestion of Parke, J., in Dunn V. Slee, awpro. It seems also to fail in support from any adjudged case founded on the declarant's death ; for we believe not one has yet gone the length of saying that the oral decla- ration of a person, however much it may miUtate against liis interest, shall be received merely upon the ground that he is dead. But see the next note. Not only must the declaration be written, but we believe its introduction has generally been aocompanied with circumstances cal- culated, affirmatively, to repel suspicion that it may have been simulated. In the latest English case which we have seen (Spiers v. Morris), stated jjosi, note 105, the executor's account appears to have been brought from what is called the proper custody (probably the clerk's office of the Ecclesiastical Court), and from the account so found, the entry was read. Such precautions are a safeguard against both collusion and forgery. In Prather v. Johnson (3 Har. & John. 487), there is a gratis dddvm of the court, in an opinion delivered after an ex parte hearing of the cause, in these words : " If A., as surety for B., pays a debt due to C, on the proof of the payment, A. could recover of B. He could recover on C.'s saying A. had paid, and of course, if C. lorate that A. had paid, surely it is evidence, whether the writing was in a book or a letter." p. 490. We shall only say that this dictum is fuUy sus- tained by the above cases of Sherman v. Crosby and Holladay v. Littlepage, which do go the length of saying that what a third person speaks or writes, if it be prima fade, evidence of a fact against his own interest, may, provided it be relevant to the rights of another, be brought in as hearsay evidence to bind those rights, although the declarant be aUve, a perfectly competent wit- ness, within reach of process, and able to attend the court I See farther, several cases of the like import examined, post, in these notes. In taking the accounts of guardians or trustees, receipts for disbursements are admissible on proving the receiptors' handwriting, without producing the persons who gave the receipts. Held in favor of guardians who sued for moneys they had received and applied, on the sales of land for their ward, the title to which had failed, and the consideration for which they were obUged to refund. The receipts were from creditors for money paid them in behalf of a spendthrift for whom the plaintiffs were appointed guardians ; and they were requh-ed by the referee to produce those receiptors as witnesses who were alive and within the commonwealth. SemUe by the opinion, that even this would hardly be required. Sherman v. Akins, 4 Pick. 283, 284, and 293. This seems to be an exception in favor of trustees, in accounting before a master auditor &c. In an action by an agent for an administratrix, to recover for his services rendered in settling the estate of her intestate, receipts by the distributees, acknowledged according to a statute of the state of Maryland, for the dividends, were held receivable without farther proof of them, as evi- dence of service done. Carroll v. Tyler, 2 Harr. k Gill, 54. S04 JException, when against Interest [CH. Yiii, themselves by any erroneous statement, and the assumed tendency of the declarations precludes the probability of any fraudulent statement. In- deed the apprehension of fraud in such cases is in a great measure re- moved, without reference to the fact of the declarations being against interest, when it is considered that declarations are not receivable during the lifetime of the authors of them; and that it is always competent for the party against whom they are produced, to point out any sin- ister motive for making them. It is true, the great tests of the fidelity, accuracy and completeness of judicial evidence are here wanting. But the inconveniences which would result irom the exclusion of evidence are considered as outweighing, in the generality of cases, the incon- venience of admitting such hearsay declarations, under the limitations and securities above mentioned. "Verbal declarations. ' It will be seen that the greater number of cases decided upon this subject refer to written entries, but there seems to be no reason why the admissi- bility of such evidence should be limited to statements in writing ; and in fact, in several cases verbal declarations have been admitted without objec- tion, when they were clearly againstthe interest of the party making them.;^!) Such verbal declarations will, of course, be entitled to less weight than written statements, as being more carelessly made, often unfaithfully reported, and less frequently connected with any course of business ; but this objection will not affect their admissibility. The question whether such verbal statements are admissible, was much discussed in the case of Fursdon v. Clogg ;(2) but the court do not appear to have expressed any opinion on the point, and gave their judgment upon another ground.(3) Declarant must be deceased. The declarations of a living person, however much against his interest, cannot be received, (4) unless in the case of a party to the suit, or of a person individually and immediately interested therein ; (5) even where a person has absconded and gone abroad under apprehension of a criminal charge, and though it be altogether out of the power of the party to the suit to produce him as a witness, his declaration will not be admissible.(6) (1) See Ivat v. Finch, 1 Taunt. 141 ; Davies v. Pierce, 2 T. R. 53 ; HoUoway v. Rakes, cited Id. 55 ; Strode v. Winobester, 1 Dick. 397 ; Sussex Peerage Case, 11 CI. & Pin. 103, 114. The declarations of a deceased person against his interest, such as a verbal statement that he was at a given time indebted to another, are admissible. Pearce v. Jenkins, 10 Ired. (N. C.) 355. (2) 10 M. & "W. 5t2. (3) But see 1 Stark. R. 613. (4) Spargo V. Brown, 9 B. & C. 935 ; Phillips v. Cole, 10 A. & E. 106, 111 ; Smith v. Whit- tingham, 6 C. & P. 18. (5) Vide infra, Sect. 10, On Admissions. (6) Stephen v. Gwenup, 1 Mo. &, U. 120. And see Harrison v. Blades, 3 Camp. 451 ; Manby V. Curtis, 1 Price, 282 ; Cooper v. Marsden, 1 Esp. 2. SEC. VII.] Or in the Course of Duty. • 305 Means of knowledge in declarant, his interest. The decisions of the judges do not seem to require any peculiar means of knowledge in the declarant,(l) or that the declarations should be con- nected with the facts to which they relate. Nor does it seem necessary that the declarations should have been made by persons in the course of any business or employment ; or that declarations against interest should be cotemporaneous with the facts to which they relate.(2) In many of the decisions respecting the rule under consideration, it will perhaps be thought that the interest of the party was so slight as to pro- duce little, if any effect. And it would seem that the judges, from an apprehension of shutting out the truth by the rejection of evidence, have, in many instances, been contented with very unsatisfactory presumptions as to the fact of the party's interest being opposed to his declaration. In some cases, the courts appear to have considered declarations to be admissible, without proof that the party making them had any actually existing interest, which could be thereby lessened or endangered.(3) Hence, a declaration, accompanied by an admission, apparently against interest, was formerly held to be receivable, although, in point of fact, the declarant did not compromise his interest at all, but only made an admission apparently against interest, and without any real transaction to which it could relate. In several of the cases formerly decided upon this subject, the inference, that the declarations were against interest, appears to have been on the unwarrantable assumption of the existence of real facts as a foundation for the statement ; and the accuracy of the declara- tions has been inferred from a supposition, that the persons making an entry must have been particularly cautious in the statement of all its details, as thereby precluding themselves from afterwards attempting to set up an unfounded demand. In a few cases, indeed, where the facts admitted of it, the judges have laid stress on the circumstance that the Alexander v. Mahon, 11 John R. 185 ; Woodward t. Paine, 15 Id. 493. See also Beach v. Wise, 1 HiU, R. 612 ; which was an action on a negotiable note transferred to the plaintiff by the payee after it became due, where an offer to prove declarations of the payee made while he re- mained the owner of the note, and before it was transferred to the plaintiff, the payee being since dead, was rejected. Kent v. Walton, 1 Wend. 256. In these two last cases, the rule estab- lished in this state, that the declarations of a former owner of a chose in action cannot be shown in evidence against a person deriving title from him, was held applicable notwithstanding the death of such former owner. See Smith v. Schenck, 18 Barb. 344 ; Paige v. Cagwin, 1 Hill, 361 ; 2 Selden, 209. (1) See by Bayley, J., in Higham v. Ridgway, 10 East, 122 ; by Tindal, 0. J., in Marks v. Lahee, 3 N. C. 419 ; by Park, J., Id. 420 ; by Vaughan, J., Id. 421 ; by lord Eldon, C, in Barker v. Ray, 2 Russ. 76. See also Crease v. Barrett, 1 C, M. & R. 925. (2) By Parke, J., in Doe d. Patteshall v. Turford, 3 B. & A. 890 ; by Plumer, M. R., in Short T. Lee, 2 J. & W. 464; where it is said that is not necessary, in the case of collectors' books, to produce the very paper by which they collected. (3) See the cases collected in Barker v; Ray, 2 Russ. 6T, n. Vol. I. 20 806 Eaxeption, when against Interest [CH. vill. entry was proved by extrinsic evidence to have been made against interest.(l) It may, however, be considered as finally settled, that a declaration of this nature, in order to be receivable in evidence, miist be against the interest of the party who made it, and also that such interest must be of a pecuniary or proprietary nature.(2) In a late case(3) from sessions, a book was produced, in which a deceased person had kept minutes of his contracts with his servants, and which contained the following entries in his writing : " April 4th, W. came ; and to have for the half year 40s. September 29th, paid this 21. ;" and it was held that these entries were not admissible as declarations made against the writer's interest.(4) Lord Denman, C. J., remarked : " The memorandum could only fix upon him (the master) a liability, on proof that the services referred to had been performed : and whether, on dis- pute, a jury would have found him liable for the sum entered, or more or less, we cannot say." Entries a3 to receipt of money. The cases in which the exception to the general rule, now under consid- eration, has been most commonly made, are where the proposed evidence consists of entries of the receipt of money, whereby the person who made them, has charged himself as accountable for the money received. Entries," so made, are evidence of the fact of the receipt of the money. Thus the acknowledgments by deceased stewards, reeves and baihffs, in their books, of the receipt of money for which they have been accountable, are very frequently adduced in evidence by their employers, or those claiming under them, or even by strangers.(5) Such entries often acquire addi- tional credit from the circumstance that they would, in the ordinary course of business, be expected to be kept. And such accounts seem to be of greater credit than entries in private books, inasmuch as they are usually subjected to inspection, and are the foundation of transactions between the steward and his employer. (1) Higham v. Ridgway, 10 Bast, 109 ; Doe d. G-allop v. Yowles, 1 Mo. & B. 261 ; Crease v. Barrett, 1 C, M. & E. 919. (2) Sussex Peerage, 11 01. & Fin. 103, 108, 109, 111. See also the Berkeley Peerage, Print Min. P. 65B ; Davis v. Lloyd, 1 Oar. & K. 276. And see mipro, as to hearsay evidence in matters of pedigree. (3) R. V. "Worth (Inhabs.), 4 Q. B. 132. (4) They were also held to be not admissible either as being written in the oourse of buaness, or as embodying a contract. (5) See Barry v. Bebbington, 4 T. E. 514; Edwards v. Roes, 1 0. & P. 340; Manning v. Leohmere, 1 Atk. 453. That this is a usual mode of proving payments under old leases and licenses, see Rogers v. AUen, 1 Camp. 309. See further Wynne v. Tyrwhitt, 4 B. & A. 316 ; Manning v. Lechmere, 1 Atk. 453 ; by Lord Ellenborough, C. J., ui Higham v. Ridgway, 10 Bast, 116 ; Harper v. Brooke, 3 "Woodeson's Loot. 332 ; Via. Ab. tit Evidence, A, b. 16 ; Bullen V. Michel, 2 Price, 413 ; Finch v. Messmg, cited in Short v. Lee, 2 J. & "W. 464 ; Bree v. Beck, 1 Younge's Ex. Ca. 225, 239 ; Doe v. Tyler, 6 Bing. 562. SEC. VII.] Or in the Course of Duty. 307 Entries in private books. But entries made in a private book, kept by the receiver of the money for his own convenience, whereby he has charged himself with the receipt of sums of money, are nevertheless admissible to prove the fact of their having been received, even though there may exist no privity between the deceased and the party against whom the evidence is tendered. Thus, where an entry was made by a deceased collector of taxes, in a private book kept by him for his own convenience, whereby he charged himself with the receipt of sums of money, the entry was held to be admissible evidence to prove the fact of the receipt of the money in an action between third persons, agreeably to the general principle above stated.(l) (1) Middleton v. Melton, 10 B. & C. 317 ; overruling Gross v. Watlington, 3 B. & B. 138 ; and Whitnash v. George, 8 B. & 0. 566 ; S. C, nom. Whitmarsh v. Genge, 3 M. & R. 42. Note 103. — This case of Gross v. "Watlington, does not decide whether the receipts, or entries, or marks of the principal were evidence against the surety, on the ground that the whole or any, were a part of the res gesiot, though this is plainly hinted ; but the court seem to balance between that prin- ciple and the one which receives the entries of a third person against his interest, he being dead at the trial. In the former case, death would be immaterial, in the latter essential. The same doubt was left by Whitmarsh v. Genge, 3 Mann. * Ryl. 42 ; 8 Bam. &, Oress. S. 0., by the title of Whitnash v. George. That was the case of a bond for the fidelity of a clerk to the plaintiffs in paying over moneys, and all his duties. It was his duty to keep their books, which he did, and therein entered moneys received by him as their clerk ; and died. Lord Tenterden, C. J., and the court, admit they were entries within the scope of his duty. Tet they lay much stress on his death, which could not be necessary if these entries were well identified as a part of his acts, and the res gestce, and were received on that ground. The same matter as in Goss v. 'Wat- lington, came again to be considered in Middleton v. Melton (10 Barn. & Cress. 311), a case of a collector's private book, by which he collected and ticked off the sums paid. Several receipts, too, given by the coUeotor to private persons, for taxes paid by them, were produced, and the whole duly proved, the private books being seen with his family at the time of his death. All the entries and receipts were shown to have been in the usual line of business of the deceased in his ofiBoe of collector. The whole wore received against his surety ; and all the judges put the evidence on the ground of the entries being made by a deceased person against his interest. And see Plaxton v. Dare, 10 Bam. & Oress. 17. Several of the American cases take up the idea thrown out by DaUaa, 0. J., in Gross v. Wat- lington, that the declarations of the principal may bind in the same sense that those of an agent would, both being within the scope of their business. And is there anything more plain? The words or declarations then are the acts or parts of acts ; and it is for the acts of the principal that the surety is bound. In such a view, the principal need not be dead. Ton prove his entries or declarations the same as you do his other acts by a third person ; and no matter that he can be produced as a witness. In Respublica v. Davis (3 Teates, 128, 130), the defendant was surety for the good behavior of Oobbett, the editor. It was shown that a libel (a volume of " Porcu- pine ") was paid for to Cobbett's common clerk, and this was admitted as the act of Oobbett. This case shows the principle. Here was the act of Oobbett by his agent. On this distinction the entries of a teller of a bank in a book kept in the bank, by which he daily stated his account, as teller, were redeived against him, to show his default in a suit against liis surety. But his ad- missions, made in writing, after he was dismissed from his office, were denied, by several of the judges. The former were likened by Cheves, J., who delivered the opinion of the court, to the declarations of an agent within the scope of his authority, which are a part of the res gesim ; the latter to an agent's admission after he had ceased to act for his principal. State Bank v. John- son, 1 Rep. Const. Ot. 404, 409. The court, of course, did not stop to inquire whether the teller was dead or alive. On the same principle, a jailer's receipt for a prisoner, was held receivable 808 When Declarations of Principal [CH. viil. against Ms surety. Bernard v. The Commonwealth, 4 Litt. 148, 151. So, a statement of an account with the bank by a cashier, explaining its receipts and defaults, made before his office terminated ; for, per Our., the sureties " were bound, not for themselves, but for Mm .■ and his acts and sayings of course bound them ; and they must stand or fall by them." Pendleton v. Bank of Kentucky, 1 Monroe, ITl, 181. So, the return of a sheriff that afi.fa. is satisfied, is a decla- ration concluding his sureties in an action on their bond. Governor v. T witty, 1 Dev. 153. And so on the same principle the inventory of an administrator is evidence in an action against his sureties. Chairman of Wash. Co. Court v. Harramond, 4 Hawks, 339. Several of these decla- rations are obviously parts of the transactions for which the sureties are bound ; and that is the true point of inquiry. They are like a part payment by the principal on a promissory note, which has been held to take it out of the Statute of Limitations, or to repel the presumptive bar of twenty years' delay, in respect to the surety, who is jointly bound to pay. Hunt v. Bridgham, 2 Pick. 581. The surety is bound that he shall do the very act which he is performing, to wit, payment as the sureties were that the cashier should do his duty by passing accounts at the bank. Whereas, the mere acknowledgment of the principal with whom a surety is bound in a promissory note, has been held not to affect the latter ; for such acknowledgment cannot be placed within the scope of the suretyship. The case of joint debtors, where both are principals, stands on a different footing ; for they bind each other in respect to their joint interest, as qvaai partners. Baker' v. Briggs, 8 Pick. 122, 128. The same distinction was suggested in Boston Hat Manufac- tory v. Messinger, 2, Pick. 223, 240, per Parker, C. J. And see Longenecker v. Hyde, 6 Binn. 1. After the lapse of six years, the admission of the principal cannot be received against the surety, even to take the ease out of the Statute of Limitations. Meade v. M'Dowell, 5 Binn. 195. And where the plaintiff took one Burnett in as a partner in the business of tanning, and the defend- ants covenanted with the plaintiff that Burnett should faithfully discharge his duty, as such part- ner, for two years from the 11th of. January, 1833, in an action on the covenant, assigning breaches in 1823, admissions made by Burnett in 1825, that certain books offered by the plaintiff in evidence were the books of the firm, were held inadmissible against his sureties. True, says Holman, J., delivering the opinion, "That while the principal is acting, his declarations may be so interwoven with his acts as to stand in direct connection with them, and form a part of the res gestae. ; but when he ceases to act, his subsequent declarations have no direct connection with his preceding acts, so as to bind his sureties." Hotchkiss v. Lyon, 2 Blaokf. Rep. 222. So to implicate the surety of a sheriff, his acknowledgment tliat he had collected money, was denied as evidence ; though, per Holman, J., " If this had been while he was officially acting in relation to the receipt of the money, the statement would have formed a part of the res gestos. But declarations at any subsequent period are inadmissible. It is his acts, and not his admissions or declarations, for which the sureties are bound." Shelby v. Governor, 2 Blackf. Eep. 289. And see BeaU v. Beck, 3 Har. & M'Hen. 242 ; and also the examination we have bestowed on a somewhat shnilar question, ante, note 103. In Evans v. Beattie (5 Esp. 27), in a suit against a guarantor of the sale of goods, the admissions of the principal that he had received the goods, were rejected by Lord Ellenborough, C, J., who said that the stipulation was to pay for goods received, not for goods acknowledged to have been received. The same thing was held by him in Bacon v. Chesney (1 Stark Eep. 192), where his Lordship remarked that the principal was not the general agent of the surety, so that he could bind him by subsequent adcnowledgments respecting the goods furnished. And in another Nisi Prius case. Cor. Holroyd, J., he refused the admission of the principal against his surety in an indemnity bond, going to show the amount of damage. Cutler v. Newlin, Mann. Dig. Evidence, H, (o) pi. 253, p. lU (Am. ed 1823)' S 3 Stark. Bv. 1387. ' ' ''"••' So far, joining the English and American principles of action on this question, they seem to result in ii comprehensive, and, at the same time, a rational and safe rule of evidence. The American oases admit, as wiU be seen, considerable latitude in defining what declarations shall be considered as a part of the res gestae. Ther? are, however, a few American cases which have departed altogether from both of the above grounds— thus giving to the principal aU the power of a joint contractor or partner, and making him more than an agent. In one case (Meade v. M'Dowell, 5 Binn. 195), before cited to another point, the defendant had written to the plaintiff, offering to stand jointly bound with "Wilson for any Jontraots he might make. This was August 15, 1198. AprH 23, 1'799, W. sent SEC. VII.] Bind a Surety. 809 a letter to the defendant, ^ving a statement of what he had purchased under the guaranty and ; the plaintiff relied on this as evidence to prove the" contract and fix the amount. It was received, though objected to ; and Tilghman, C. J., lays down a very broad proposition : — " Meade having confided to Wilson the malting of the contract, confided to him likewise the power of furnishing evidence of the contract. The contract having been made by parol, without witnesses, it was Impossible to prove it in any other manner than by subsequent declarations of the party.'' (p. 197.) Had the retnark been cooflned to the time of sale, and the ootemporaneous act of acknowledging the sale by a bill, receipt or other memorandum, it would be clearly within the principle of the res gestce ; but the actual contract had been made some time since. The principle had ceased to deal on the credit of the defendant; and, on the whole, the decision seems founded on such a comprehensive construction of the contract of guaranty as to render it more perilous than it has been generally esteemed. For if the vendee of goods, under a continuing guaranty, has power at any time to furnish evidence of his purchases by his declarations, why not any other principal to furnish the same kind of evidence in regard to his acts, whether at the time or after they are done ? Surely the chief justice did not mean to make the competency depend on what he inci- dentally mentions, the probable want of legitimate proof; for this would be a still broader open- ing to hearsay. Tet other and very learned tribunals have certainly gone the fuU length of Meade v. M'Dowell ; and even the wife's admissions against her surety in favor of the husband were in one case received and deliberately sanctioned. He agreed with her and the defendant that she should live separate, and that he would deliver her certain articles, in consideration whereof "the defendant, her trustee, engaged, as her surety, to pay ; and in an action against the surety, her admissions that she had received the articles were held evidence for the husband, the plaintiff. Penner v. Lewis, 10 John. Rep. 38. In this case, the court use terms quite as broad, indeed broader, than those of Tilghman, C. J., swpra. They treat the wife as the mutual agent to receive the property ; and infer that therefore her confessions would be admissible. Quere; see post, as to admissions by parties and agents. "No principle," they say, "would seem to be more clear than that the person to whom performance of the act is agreed to be made is compe- tent to acknowledge such performance. If she is competent to receive,, she is competent to give a receipt for them ; and if her receipt would have been good evidence of the delivery, her parol admission must be equally so." Several cases of admissions by general agents are there cited- No doubt admissions of the person entitled to receive are evidence against him. How far they are so in regard to third persons, we examined ante, note 103. But this case would seem to be clearly defensible, on the principle that the admission was made by the party really iu interest against the nominal party, as will be mentioned in regard to the same case, post. !For the cases supporting this last view, see our notes as to admissions by parties and others. In South Carolina, too, the distinction advanced by some of the judges in State Bank v. Johnson (supra), has been reconsidered, and the acknowledgments of the principal, made at any time, inde- finitely let in upon the surety. This was done in an action against the sureties of the sheriffs. Treasurers v. Bates, 2 BaU. Eep. 362, 380, ei seq. The State Bank v. Johnson seems to be the only authority cited, and that contains no reference to any of the numerous point blank cases the other way. In Treasurers v. Bates, the court say the surety is a privy in law with the principal, and what bmds the latter buids the former. In a word, they are put exactly on the ground of joint principals. In Simonton's Assignees v. Boucher and others (2 "Wash. C. C. Rep. 473), acknowl- edgments were also received by the principal a-gainst his sureties. The nature of the acknowl- edgments, or the ground on which they were received, is not mentioned. It is a meagre case. These cases, which go to receive acknowledgments, are also sustained by a general dictum, which feU firom the court, on the trial of Eespublica v. Davis (3 Teates, 128). Such are the conflicting authorities upon hearsay of the principal, as evidence against the surety ; the first cautiously excluding -everything while the surety is alive, which does not make a -part of the res gestai ; or, if he be dead, receiving other declarations as being in writing, and against his interest, and therefore coming in hke those of any third person disconnected with the surety; the second, either placmg him on the footing of a, general agent, or the authoritative ground of a privy in law. Among these cases, there seems to be no doubt that those which deny to naked acknowledgments of the principal any influence whatever upon the surety, come nearest to the fundamental character of that relation — which is an obligation on the part of the surety to answer for some act of the principal, in case of his failure. Theobald's Law of Pr. and 810 Hxcepiion, when against Interest [CH. vili. It ought clearly to appear, that the effect of the entries was to charge the person making them. Thus, in an action for copyhold fines, the book of a deceased steward of a manor was tendered in evidence, containing entries of assessment of fines ; as well those paid as those not paid ; and it appeared that the steward made up a hook at the end of each year, in which book he put down the fines that had been actually paid. The former book was rejected, on the ground that it did not appear to contain any evidence that the steward had charged himself.(l) As to custody of these books. Accounts of this nature are commonly produced from the muniments of the persons to whom the accounts were rendered: and when this is the case, they amount to proof that the person rendering them has actually put it into the power of his employer to use them against him, as evidence of money had and received to the employer's use. This circumstance appears to entitle them to much greater credit than is due to entries in private books, which have never passed into the custody of persons inte- rested to make use of them against the makers of the entries. The custody from which receipts are produced will materially affect the question of their admissibility. When found among the papers of the party who has paid the money, they are receivable as an admission by the other party, if proved to be in his handwriting, that he received the money, and are not open to the objection that they might have been fabricated by the latter as evidence in his own favor ; but if they came from the custody of the other party, they might be open to that objection, and might not therefore be receivable in evidence.(2) The occupation of premises by a particular individual at a certain period has been allowed to be proved by entries in a land-tax collector's book, stating that individual to have been rated for the premises in ques- tion, and to have paid the rate, on the ground that the entry of payment was made against the interest of the co]lector.(3) Upon a question whether premises were situate in a particular parish, the accounts of Bur., 1, 2. The ohligation being precisely commensurate with that of the principal, to place the surety within the reach of these admissions or declarations, would at least be multiplying the means of evading that strictness in the mode of inquiry, which the surety has a right to demand. (1) Ely (Dean and Chapter) v. Oaldecott, 1 Bing. 434. And see Brett v. Beales, 1 M. & M. 418. (2) Doe d. Blayney v. Savage, 1 Carr. & K. 481, 492 ; by Atcherley, Sergt., before whom the cause was tried, after consulting with Tindal, 0. J. (3) Doe d. Smith v. Cartwright, R. & M. 62. A taa gailierer'a receipts, after his death, are re- ceivable to prove a person occupier of premises. See by Lord EUenborough, C. J., in Harrison v. Blades, 3 Camp. 453. The principal oases respecting titlie receipts are Lake v. Skinner, GwiU. 1931 ; S. C, 3 E. 4; T. 916 ; Jones v. Oarrington, 1 C. & P. 327, 329,|497 ; Ekins v. Dormer, 3 Atk. 534; Chapman V. Smith, 2 Ves. 511; White v. Lisle, 4 Madd. 214; Dulfield v. Orrel,,6 Price, 324; Deacle v. Hancock, M'Clel. 18; Taylor v. Pox, 4 Wood. 322; Chapman v. Smith, 2 B. i, Y. 141. On discrepancies between early and late receipts, see Manby v. Lodge, 9 Piice, 231 ; on receipts of churchwardens for a tributary modus, see Atkins v. Drake, 1 M'Clel. & T. 217i SEC. VIL] Or in the course of Duty. Sll deceased overseers, in whicli there -were crosses made against tlie sums for "which the tenants of the premises had been assessed, were held to be evi- dence of actual payment of the rates.(l) Declarations as to right to property. Not only declarations of the receipt of money, but declarations of a variety of descriptions, made against interest, have been received in evi- dence.(2) Thus, upon a question whether A. B. died possessed of certain farming stock, it has been held, that evidence might be given of a con- versation, in which A. B. stated that she had retired from business, and had given up her farming stock to her son-in-law.(3) A bill of lading signed by a master of a vessel, since deceased, for goods to be delivered to a consignee or his assigns, on payment of freight, has been held to be admissible evidence of the consignee having an insurable interest in the goods.(4) In several cases the declarations have been made by tenants, who have stated that they paid rent to particular persons. In these cases, the decla- rations have been considered as made against interest, inasmuch as posses- sion is prima fade evidence of a seizin in fee, and, therefore, the decla- ration of the possessor, that he is tenant to another, makes against his interest.(5) And the rule is, that aU statements by a deceased person, while in possession of property, are in themselves original, and not merely secondary evidence, if their effect would be to cut down his interest in it.(6) Such declarations are admissible,(7) not only against (1) Plaxton V. Dare, 10 B. & 0. IT. Vide Id., as to the neoesaiiy of proving payment in such a case. (2) See the eases collected in the note to Barker v. Bay, 2 Buss. 67. See also the next section for cases respecting indorsements of payment of interest upon bonds and notes. (3) Ivat T. Pinch, 1 Taunt. 142. (4) Haddow v. Parry, 3 Taunt. 303. In general, an invoice is only evidence against parties privy to the contents. Mendham v. Thompson, 1 Stark. E. 316; Dioken v. Lodge, Id. 226. The master of a vessel, actiag within the scope of his authority, binds the owner, as an agent lands his principal : his contracts are those of the owner, as well as his own. In other words, under certain circumstances, he has power to make contracts in relation to freight, binding the owners (Edwards on Bailm. 439, 440) ; and in such cases, his acts may be proved as a part of the res gestce. 4 Wend. 394. (5) By Mansfield, 0. J., in Peaceable v. Watson, 4 Taunt. 16. See also Crease v. Barrett, 1 0. M. & R 931. (6) Per Cwriom, 16 M. & W. 514. (7) See Doe d. Human v. Pettett, 5 B. & A. 223 ; Doe d. Manten v. Austin, 9 Bing. 41 ; Trim- leston (Lord) v. Kemmis, 9 01. & Fin. 780, 784, 785. Declarations of » party in possession are evidence against those claiming under him, on the ground that the latter stand in the place of the former, having taken the estate with its burdens (St. Clair's Heirs v. Shale, 20 Penn. State R. 105; Alden v. Grove, 18 Id. 377); but are not evi- dence in fevor of the party deriving title from him. Smith v. Powers, 15 N. Hamp. 646 ; Masters v. Tamer, 5 Gratt. 168. 312 Eaxeption, when against Interest [CH. Vlll. all parties claiming under the declarant, but also as evidence for or against strangers.(l) Upon a question wliether the place in dispute was parcel of a particular tenement, the declarations of deceased persons, during their occupation of the place in dispute, that they paid rent for the premises to a particular individual, were held to be receivable in evidence.(2) In an action of ejectment,(3) brought for the recovery of a garden, where the question was, whether the ground in dispute was parcel of certain free- hold property, or of a certain copyhold tenement, a paper signed by a deceased owner of the copyhold tenement (who was also in the occupation of the ground in dispute), in which paper he stated that no part of the garden was copyhold, and that he paid rent for it, was held to be admissible evidence to prove that the garden was not copyhold. Lord EUenborough, C. J., observed, that the representation was against the interest of the maker of it, as he charged himself with the payment of rent, to which he would not have been liable, had the garden been parcel of his own tenement. In the case of Barker v. Eay,(4:) the declarations of a wife during coverture were tendered in evidence, after the death of her husband ; they were to the effect that her husband was not seized in fee of certain premises in dispute, of wKich he was then in possession ; and that upon a certain event they were to go over to another branch of the family. The declarations were rejected at Msi Prius, and it was contended, upon appeal to the Lord Chancellor, that the declarations were against interest, as their tendency, by showing that the husband was not seized in fee, was to prejudice any claim that the wife might make to dower. The Lord Chan- cellor refused a new trial, not expressing any decided opinion as to the admissibility of the evidence. Particulars of estate recognized by tenant for life. Upon a question whether the lease of a tenant for life, having a limited power of leasing, was void, in consequence of the ancient rent not being reserved, the particulars of a certain estate were received in evidence under the following circumstances. The contents of the paper containing the particulars showed, that it had been written by a person having an intimate knowledge of the property in question, and who was in the confidential employ of the person to whom the paper was addressed. The paper was in some degree recognized as authentic by the person to whom it was addressed, by his indorsement written upon it, " a particular of my estate in Cornwall." It showed the existing rent of a particular tene- (1) See Doe d. Baggaley v. Jones, 1 Camp. 361 ; Peaceable v. Watson, 4 Taunt. 16; Came t. NicoU, 1 N. C. 430 ; Doe d. Daniel v. Coulthred, 1 A.&K 235. (2) Davies v. Pierce, 2 T. R. 53. (3) Doe d. Baggaley v. Jones, 1 Camp. 361. (4) 2 Buss. It. SEC. vii.J Or in the Course of Duty. 313 ment, tlie ancient rent of whict was tlie subject in dispute. The paper "was addressed to the person who was tenant for life of the property with a leasing power upon condition of reserving the ancient rent, being the like power to that under which the lease in question had been made. The paper was preserved among the muniments of the estate by the person to whom it was addressed, and from him it came to the tenant for life whose lease was in question, and upon his death it passed with the other muni- ments of the estate to the succeeding proprietor, who questioned the validity of the lease. Lord EUenborough, 0. J., in delivering the judg- ment of the court, said,' the contents of the paper were adverse to the tenant for life to whom it was addressed, and who had authenticated it, and preserved it among his muniments, — for it diminished his interest in the renewal, in the same proportion as it raised the rent to be reserved, — and it could not have been evidence in his favor ; he could not, therefore, have had any undue motive for preserving it: consequently it was proper evidence, to be left to the jury, of the amount of the ancient rent received.(l) A declaration by a party in possession, that his interest was for his own life only, would be primary evidence that it ceased to exist at his death ; but it would not be so, if he merely declared that he held " for life inte- rest," that statement being consistent with one or more life interests coming into existence after his death ; and it does not therefore necessarily admit, that the right of possession would immediately at his death accrue to the reversioner.(2) Proof of occupation. It seems necessary, in order to render admissible the declaration of a deceased person, as being an occupier of land, to prove the fact of his occupation at the time the declaration was made ; it is not enough that the declaration purport to be against the interest of the maker.(3) But slight evidence (as of felling timber) has been held sufificient.(4) The declarations of a person who has parted with his interest in land (as by executing a settlement), cannot therefore be adduced for the pur- pose of impairing the rights of persons acquired under the settlement, merely because they affect the title to the land.(5) " It is clear," said Lord Denman, C. J., "that a person who has parted with his interest in property is not to divest the right of another claiming under him, by any statement which he may choose to make."(6) (1) Eoe d. Brane v. Rawlins, 1 Bast, 279. (2) Doe d. "Welsh v. Langfield, 16 M. & W. 49^. (3) Crease v. Barrett, 1 C, M. & E. 931. (4) Doe d. Stansbury v. Arkwright, 5 C. & P. 575. (5) Doe d. Sweetland t. Webber, 1 A. & B. 733. (6) 1 A. & B. 740. See Roberts t. Justice, 1 Car. & K. 93. S14 DechraUons hy Owner [CH. vin. In the case of Ivat v. ¥111011,(1) it has been seen that a declaration by a deceased party, that she had given np her stock in trade to her son-in-law. (1) 1 Taunt. 142 ; Sufpra, p. 311. Note 104 — Thia case of Ivat v. Finch suggests another class of hearsay, admissible upon the sole ground that it emanates from the owner of property at the time, and would therefore he evidence against him, were he the immediate party to the suit. His estate or interest in the same property, afterwards coming to another, hy decent, devise, right of representation, sale, or assignment, in a word, by any kind of transfer, whether it be the act of law or the act of the parties, whether the subject of the transfer be real or personal estate, corporeal or incorporeal, choses in possession or choses in action, the successor is said to claim under the former owner ; and whatever he may have said affecting his own rights, before departing with his interest, is evidence equally admissible against his successor claiming from him, either immediately or re- motely. And in this instance, it makes no diiference whether the declarant be alive or dead ; for though he be a competent witness, and present in court, his admissions are receivable. This doctrine proceeds upon the idea that the present claimant stands in the place of the person from whom his title is derived ; has taken it cum onere ; and as the predecessor might have taken a qualified right, or sold, charged, restricted or modified an absolute right, and as he might furnish all the necessary evidence to show its state in his own hands, the law wiH not allow third per- sons to be deprived of that evidence by any act of transferring the right to another. Declara- tions made by the predecessor are a part of the res geslm, whether accompanied with acts of pos- session or forbearance, so much so, indeed, that, as we saw amte note 81, p. 188, et sej., they might for many purposes be evidence in his own favor to fortify his claim ; but, above all, to weaken or contract it. The extent of this doctrine will, however, be better understood by a leading English case deci(3ed in the King's Bench in 1812. The action was debt, by the execur tors of Earl Dartmouth s^gainst the defendant, as owner of a farm in Batley parish, for not setting out the tenth of the hay grown on the farm as the tithe belonging to the plaintiffs ; and the question of course was : 1 . Whether the farm was charged with the tithe ; and 2. "Whether it was due to the plaintiffs' testator. The defendant purchased the farm of one Leaihley ; and while he was in possession, and before he sold to the defendant, the vicar of Batley had claimed that the tithe of this farm was due to him, and filed a bill in equity against Leathley to enforce iBie claim. Leathley answered, denying that the tithe belonged to the vicar, and insisting that ■ jt was due to the plaintiffs' testator. Here the chancery cause stopped, and then Leathley sold to the defendant. On the trial of the now action against the defendant, the plaintiffs offered in evidence the confessions of Leathley in hia answer. They were objected to as res mier alios acta, but received by Thompson, B., at the circuit, where the verdict being for the plaintiffs, a motion was made by the defendant for a new trial, mainly on the objection to the answer. The motion was denied. Lord Ellenborough said : "It appears to me that this was not res inter alios acta, but inter eosdem acta, and was not only evidence, but strong evidence against the defendant, who stood in the same place by derivation of title and by legal obligation as Leathley ; and Leathley, upon his oath, in a suit against him by the vicar, has declared that the tithe is due to the rector, and not to the vicar; and now that same person, in effect, is deraigning the title of the rector in favor of the vicar. The reading of his answer, therefore, operates as a contradiction to him." Lady Dart- mouth v. Roberts, 16 East, 544. The otherjudges expressly concurred in the same view. Seeasimi- lar view of the question, a few years before, by the Supreme Court of New York in Jackson ex dem. Griswold v. Bard, stated infra. In a late case, Conkling, J., on deciding that such an answer made by S., the tenant in fee, admitting a resulting trust in the land, was receivable to charge such trust upon the same laud in the hands of the defendant, who derived title from S., remarked ; " I understand it to be a settled rule that the declarations of a tenant in possession adverse to hia title, and relative to facts whioh may be proved by parol, are evidence, not only against himseUJ but also against those claiming by subsequent conveyance under him." In Bradatreet v. Huntington, U. S. 0. 0. North. Dist. N. T., May term, 1834, Pamphlet, p. 21. That an answer, made by the grantor before the date of the deed, shall be evidence as an admis- sion against the grantee, though the answer was made at the suit of one totally disconnected SEC. VII.] Bind the Heir or Devisee. 815 ■with the plaintiff in the suit wherein the answer is offered, was also held In Eeea v. Lawless, 4 Litt. 218, 219. "We propose to consider and exemplify this doctrine, first in its application to real, and secondly, to personal property. First, in its application to real estate. 1. The declarations of the ancestor are evidence against the heir. This was allowed on a question of boundary. The ancestor's admissions, while in possession, that the land was limited to a certain line, werer received against the heir in ejectment by him. Jackson ex dem. M'Donald v. M'CaU, 10 John. Rep. 3'77. So on a bill filed against the heir to enforce the specific performance of a contract, alleged to have been made by his ancestor, for a sale of the land, his admissions are receivable that he made the contract. Bassler v. NieSly, 2 Serg. & Bawle, 352, 354. And the admissions of the ancestor of the defendant's landlord were held evidence against the defendant ; his landlord claiming as heir of that ancestor, and having as such, dendsed to the defendant. Morris' Lessee v. Vanderen, 1 Dall. 64 The declarations of the ancestor were received against the heir, to show the contents of a deed given by the ancestor, conveying away the premises, the loss of the deed being first shown. Allen's Lessee v. Pariah, 3 Hamm. Eep. lot, 111. And, on a question whether the plaintiff was bound by prescription to maintain a partition fence between himself and the defendants, evidence was received in behalf of the latter without objection, that fifty-sis years before, the ancestor, under whom the plaintiff claimed, then being owner of the land, said that himself and his ancestors had always maintained the fence. Binney v. The Proprietors, &c., of HuU, 3 Pick. 503, 504, 605. On trial of a petition of freedom by negro, who claims emancipation, in right of and as under a free ancestor, the decla- rations of the ancestor, as that the petitioner was a slave, are evidence against him. WaOkup V. Pratt, 5 Har. & John. 51, 58. 2. As between devisor and devisee. The latter claiming under the former, it would seem to follow that all those circumstances resting in parol, and usually examined on viva voce testi- mony, calculated to invalidate the will, might equally be shown by the declarations of the devisor at any time. Among these are mental alienation, fi'aud, duress, undue influence, kc- Tet, it is not to be disguised that there is a considerable weight of authority limiting such evi- dence to a time anterior to or at the execution of the wiU. If after, it is oongidered by several courts as contravening the statute regulating the solemnities required in the revocation of wills. A strong caae for receiving such evidence came before the Supreme Court of New Tork, in 1806. In ejectment the lessors of the plaintiff claimed as heirs of K., and the defendant claimed under his wiU. The plaintiff gave evidence tending strongly to show threats and duress in obtaining the will by the defendant K.'s second wife, and offered to follow this up with the testator's decla- rations — some of them made m extremis — that threats and duress had been exerted upon Mm, by means of which the will was obtained. Held by three judges against two that the evidence was inadmissible. Jackson ex dem. Ooe et aL v. Kniffen, 2 John. Rep. 31. Thompson, J.; delivered the leading opinion, and which doubtless Contains the only argument upon which the decision can be rested. "It could not," says the learned judge, " if placed in the strongest pos- sible terms, amount to a revocation without a direct violation of the statute, which declares that no win (of land) shall be revoked or altered except by writing, executed vrith all the requisites of a will, or by canceling the same. If these declarations were not to operate as a revocation, I am at a loss to see in what manner they could affect the will. To say that they were proper, in order to show that the instrument in question was not duly executed, by reason of its having been signed under duress, is assuming the very point which was to be proved." Kent, C. J., and Livingston, J., concurred; the latter addressing himself mainly to the point that the declara- tions, being in artiado mortis, could add nothing to the argument for their admissibility. Spen- cer and Tompkins, J's, dissented ; and their reasoning is very strong, both upon principle and authority. It is clear, as they insist, that the will was ambulatory till death ; and the defendant had no vested right to be overreached by the proposed declaration. She claimed under the tes- tator, and within almost all the cases was bound to abide his declarations. Waiving the inquiry whether the declaration was admissible, as being made m extremis, the rule that I am liable to be affected by the declaration of one who conveys to me, made before my right vests, is at this day sustained by a force of authority not to be resisted. The argument advanced, that the decla- ration was in the nature of testimony to establish a revocation, and so would violate the Statute 816 Declarations against Interest^ [CH. VIII. of Frauds, would preclude all evidence of duress or undue influence, wMch is certainly a very common head of objection against vrills. The objection that such evidence contravenes the Stat- ute of Frauds would apply equally to a deed of lands. Tet, can it be doubted that a grantor declaring, before the title to the land passes by his deed, that he shall convey (but it is to save his life, threatened by the grantee), would be evidence to affect the latter? Tou cannot, by parol, contradict a bond or mortgage, yet your declaration that your bond or mortgage was given on a usurious consideration, would be a moat fatal one for your subsequent assignee. If the fact of duress or undue influence be provable, then every kind of proof adapted to its establishment is competent, and goes for what it is worth. Such an objection was not even thought of in Kelson v. Oldfield, 2 Tern. YS. And see Reel's Bx'r v. Reel, and Howell v. Barden, infra. Declarations strikingly similar were once received and acted upon in Pennsylvania, in aid of other proof, to establish the mental imbecility of the testator, and to show that this was wrought upon by his wife and father-in-law. "The declaration of the testator," says Duncan, J., "that his vnfe and father plagued him to go to Lebanon ; that they wanted him to give her all, or he would have no rest ; that he did not want to go to Lebanon — this would be evidence of a weak mind, operated upon by excessive and undue importunity. It forms no objection to it that these murmurs of a weak mind were made in the absence of the devisee. We should be surprised to hear that they were made in the presence of that devisee, an importunate and teasing wife- Rambler V. Tryon, 1 Serg. & Eawle, 90, 93, 94. The declarations of a testator are also receiv- able to support or repel the presumption that a will executed by him, but not found at his death, had been destroyed by him animo revocanM. Betts v. Jackson ex dem. Brown, 6 "Wend. 1'73, on error, per Walworth, C. Such declarations, however, are not incompatible with Jackson v. Kniffen, swpra. In Rambler v. Tryon they were evidently admissible, as a part of the res gesto, to show the state of the testator's mind ; and in Betts v. Jackson, as developing an intent from the actual or apparent destruction of the will. And such declarations have been received upon this distinction in other cases. Thus, where the testatrix had devised the greater share of her prop- erty away from her relations and friends to the Hadlyme Presbyterian Society, in order to show importunity and undue influence, her declarations, made about the time of executing the will (whether before or after did not appear), were given in evidence, viz : that the Hadlyme Society, or the Presbyterians, were about her as thick as bees, to get her property ; and held that these declarations might be received between them and the heirs, as evidence to show her state of mind, as sane or insane, but not of the facts stated. Comstock v. Hadlyme, 8 Conn. Rep. 254, A. D. 1830. In another case, to show that the testator was fraudulently prevented from revok- ing his wUl, his declarations to that effect were offered in two classes : 1. Those made before and at the time of making the will, and immediately afterwards ; 2. Others made afterwards, at sev- eral times during the seven last years of his life. Story, J. Those "made before and at the execution " are admissible ; and bo those " made after, if so near the execution as to be consid- ered a part of the res gestae, or necessarily connected with it. But I shall not admit any other subsequent declarations, because they are of the nature of hearsay, and have never been held admissible in any case within my recoUectiou." Smith v. Penner, 1 GaUison, 170, 111, 1'72, A. D. 1812. In another case, Washington and Pennington, J's, repudiated evidence to sustain the capacity of the testator, that his declarations had often expressed an intention to dispose of his property according to the will. This was offered to infer that a smaller grade of memory would be required at the time, if the disposition was consistent with a previous and long-settled purpose. Washington, J., said : If the testimony were received at all, the other party might show opposing declarations ; and " thus a door would be opened to an inquiry in no respect per- tinent to the main subject of investigation, but mischievously calculated to perplex and mislead the jury.'' He admitted that such evidence had been given in cases read by counsel, but it was without objection. Den ex dem. Stevens v. Tan Cleve, 4 Wash. 0. C. Kep. 262, 265, 266, A. D. 1822. The difficulty seems to lie in acting upon the distinction between declarations going to develop the operations of the mind and those containing merely the assertion of a dis- tinct fact. The former are admissible ; the latter not. The doctrine was much considered in a recent case, where the wUl, executed by a man of competent understanding, was sought to be impeached by his declarations, made before and after its execution, that he intended differently, but was importuned by his wife ; and that the will was made through much importunity and fear of violence from her. These declarations being received in evidence, came up on error SEC. vii.] Wlien admissible. 317 brought. None of the above oases were cited, except Nelson v. Oldfield ; but the judgment below was reversed, on the ground that it was against the spirit of the Statute of Eevocations. Moritz T. Brough, 16 Serg. k Bawle, 403, A. D. 182'?. This subject has also recently been somewhat examined by the C. P. m England, A. D. 1829. In a writ of entry the demandants claimed as heirs, and the defendant as devisee of H. S. The demandants gave evidence to show that the will, at the time, was executed in presence of only two witnesses, three being neces- sary, and that another was fraudulently added after the devisor's death. This was answered by proving the high character of the attorney who drew and witnessed the will. The demandants then offered to show the devisor's written declarations, that the defendant should not have his property, and had got him to sign a will which was not worth a farthing. Held inadmissible, as contravening the spirit of the Statute of WUls. Provis v. Heed, B Bing. 435. It is proper to say of Comstock V. Hadlyme {supra), which was decided by the Supreme Court of Connecticut, with all the other cases above cited before them, that some general expressions fell from the court to restrict this kind of evidence within narrower limits than the case itself required, and probably than that learned court would itself deem necessary on a question directly before them. As to declarations of a testator ootemporaneous with his wiU, to create a trust in the devisee, see 1 Watts's Rep. 163. Such has been the course of decision against this sort of evidence. In 1821, fifteen years after Jackson ex dem. Coe v. Kniffen, and nine years after Smith v. Penner, the question involved in these cases was presented to the Supreme Court of North Carolina, who expressly adopted the opinions of Spencer and Tompkins, J's, in the first case, thus repudiating the decisions of both the Supreme Court of New York and Judge Story. Both these oases were before them, appear to have been some time in the hands of counsel, and were followed by the judge at Nisi Prius. At the bar, great research and high forensic talent were exhibited in the discussion, both upon principle and authority, the main ground for the evidence being the admitted one of which we are treating, that declarations made by the owner, follow from him to all who claim under him, along with descents, devises or sales. The evidence proposed was of repeated declarations made after the execution of the will, and consisted in stating its contents to be materially and utterly different from what they were. They were offered in connection with conflicting testimony upon the point of testamentary capacity. The evidence was resisted as in New York, among other arguments, on the ground that it would violate the spirit of the North Carolina Statute of Eevo- cations, which also required certain specified solemnities. On both sides, the English authorities then extant, were fuUy cited and appUed. On the whole, the arguments were learned and use- ful, and must have saved the judges great labor upon this vexed controversy. The conclusion of the court is strongly expressed : " To reject the declarations of the only person having a vested interest, and who was interested to declare the truth, whose fiat gave existance to the will, and whose fiat could destroy, and in doing the one or the other, could interfere with the rights of no one, involves almost an absurdity ; and (with due deference to the opmions of those who have decided the contrary, we say) not upon the ground of then- being part of the res gesice, for whe- ther they accompany an act or not, whether made long before or long after making the will, is entirely hnmaterial as to their competency. Those circumstances only go to their weight or credit, with the tribunal which is to try the fact." After a further examination of the question, they add :\" For these reasons, and those given by Judge Spencer, who, together with Judge Tompkins, dissented from the opinion of the court, and because of the doubt which rested for some time on Judge Livingston's mind, we think we are bound to disregard the opinion of a majority of the court in 2 John. 31, and also the case in 1 Gall. 170." Reel's Ex'rs v. Reel, 1 Hawks 247 268, 269. Again, in 1832, on trial of an issue otdevisavit vel non, Judge Martin, at Nisi Prius rejected the testator's declarations, made after the execution of the will, and tending to show that it was obtained by fraud and undue influence of the principal legatee. On movmg for a new trial, the question was treated as open and unoonoluded by Reel v. Reel, because there the testator died before the North Carolina Statute of Revocations passed, which was not till 1 8 1 9. The statute being before the former decision, though after the wUl, was a distinction not adverted to. Provis V. Reed (which we stated above), was now cited by counsel, in addition to Jackson v. Kniffen and Smith v. Fenner, as an authority for excluding the proof. The court declared that they had " deliberately considered the question anew ;" and concluded that the object of the statute is an act of revocation, going " whoUy to change the mind of the testator, and not to the 318 Declarations against Interest, [CH. vill. original want of the a/imiim disponendi." The proof offered waa relevant to the latter point. The objeotion that it may mislead the mind of the jury, is appHoable to all evidence submitted to them, especially if it be competent for one purpose and not for another. There is no instance in which the legitimate and illegitimate purposes of introducing evidence are more distinct or more obvious to a common understanding, than the one before us. The one is to determine whether a will was made, and fairly made ; the other, whether the operation, of such an instrument, not destroyed, has been recalled. The court inquire as to the application and force of Provis v. Eeed, and insist that the statute, in leaving great latitude of evidence upon the point of original testamentary capacity, adopts the only practicable legislation which the nature of the subject admits; and they demonstrate the general safety there is in receiving such evidence, by present- ing the ordinary tests of strength or fallacy. We refer particularly to the perspicuous and mas- terly opinion of Ruffin, J., with whom Henderson, C. J., concurred in more general terms. Both adhered to the opinion in Reel v. Reel. Daniel, J., dissented, mainly on the three authorities of Jackson v. Kniffen, Smith v. Fenner, and Provis v. Beed. Howell v. Barden, 3 Dev. 442, 444 to 451. A direct act of revocation, and avowedly such, of course cannot be by parol Allen v. Huff, 1 Terg. 404. 3. The declarations of the grantor, bargainor, vendor, &c., of real estate, such declarations being made at any time before the act of granting, bargaining, vending, &c., are admissible against the immediate grantee, bargainee, vendee, &c., and all who claim more remotely under the same title. This hap been holden of the grantor's declarations lending to show that the deed was a fraud upon creditors (Bridge v. Eggleston, 14 Mass. Rep. 245) ; such as that he expected to be ruined, thought it best to pay as few of his debts as possible, and intimating an intention to sub- mit to imprisoment. pp. 246, 249. So the admission of the debtor's grantee in possession, that he himself purchased with a view to defraud creditors, was received against his grantee, the ad- missions being made before the date of the last deed. Norton v. Pettibone, 7 Conn. Rep. 319. And per Daggett, J. : " That such declarations so made are admissible, I had supposed to have been too long and too well settled to be doubted. It has been so ruled more than twenty times within the last forty years. Declarations of a person while in possession of the premises, against his title, are always admissible, not only against huu, but against those who claim under him." p. 323. And see per Sould, J., 2 Conn. Rep. 412, 413; per BuUer, J., in Davies v. Pierce, 2 T. R. 55 ; per Richardson, C. J., in Downs v. Lyman, 3 N. H. Rep. iSI ; per Rogers, J., in Reed V. Dioltey, 1 Watts' Rep. 154 ; and per Savage, C. J., in Jackson ex dem. Titus v. Myers, 11 Wend. 536. In ejectment, the defendant claimed the locus in quo under S., who claimed under a deed of the same premises from D., which the lessor of the plaintiff insisted was ante-dated in order to overreach his mortgage of the same premises against D. On the trial, the plaintiff was allowed to prove S.'s admissions made before he sold, and whUe he was in possession, that his deed had been ante-dated ; and other expressions tending to show that. Tiiis was allowed, though it was objected that they were the unsworn declarations of a third person. The court said, on motion for a new trial : " These declarations would have been good against S., and are also com- petent evidence against aU who claim under him. This principle has been repeatedly recognized both in our own and the English courts." Jackson ex dem. Griswold v. Bard, 4 John. Rep. 230. So a confession by the grantor that his warrant and survey did not cover the land in question made befor^ he conveyed, was received against the grantee. Weidman v. Kohr, 4 Sero-. & Rawle, 11 i. So, where in an action for obstructing water by a dam, the defendant, who ob- tained his title from Carr, who built the dam, set up an adverse possession for fifteen years (the Conn. Stat, of iimitations), as his defence, the plaintiff was allowed to show the declaration of Carr, before he conveyed, that his holding was not adverse. Botts v. Davenport, 3 Conn. Rep. 286. So the plaintiff in ejectment was allowed to prove that the defendant's grantor, before he conveyed, showed a certain maple tree as his place of beginning. Townsend v. Jolmson, 2 Pen- ningt. Rep. "J 06. At Nisi Prius, in ejectment, the defendant claimed by a deed from Hughey. ' A serious question was made upon the evidence, whether this deed had ever been delivered to the defendant ; and, among other evidence, the plaintiff offered to prove that Hughey acknowl- edged, before he conveyed to the defendant, that he had not paid the purchase money; and had no title. Judge Hall rejected the evidence, because it would affect a third person. But the re- porter thought this a hasty decision. He says : " An admission made relative to the land in question, by one Who afterwards sells to another, is certainly as much evidence against the pur- SEC. VII.] Wlien admissible against Grantee or Vendee. 819 ehaser aa it was against the vendor before the sale. Otherwise the person who was entitled to the evidence (which might be decisive evidence too) might be wholly deprived of it by the aliena- tion of the owner." Heputsaeveralinstanoesby way of illustration. Hesaya: " Nothing is more common in our practice, than to give evidence (with respect to the extent of boundaries) of what the former owner said, if it operates against him." Clark v. Arnold, 3 Hayw. 281, 288. Accord- ingly, where, ia ejectment, the lessors of the plaintiff claimed under Van Schaick, and a person under whom the defendant claimed, through a number of successive purchasers by deed in fee, had acr knowledged, while in possession, and before he had conveyed, that he held by lease from Van Sohaick, the court said that the defendant was as much affected by the acts and aoknowledgmenta of his predecessors, as if they were his own ; and the acknowledgment was received as available against him in that view. Jackson ex dem. Van Sohaick v. Davis, 5 Cowen's Rep. 123, 129 And see Simmons v. Parsons, 1 Bail. Rep. 62. So where the person under whom the defendant^ claimed had acknowledged that he went into possession under the lessors of the plaintiff (Jack- son ex dem. Van Duzen v. Scissam, 3 John. Eep..499) ; or admitted the plaintiff's title ; and re- quested leave to remain. Andrews's Lessee y. Fleming, 2 DaU. 93. In ohanoeiy a biU was filed by a cestui que I/rust to set aside a sale of bis lands by his trustee to one Godman, who took a deed, as was alleged, for his, the trustee's benefit. He afterwards conveyed to the trustee. Held that Godman's declarations that he purchased for the trustee's benefit, made before the deed was executed from Godman to the trustee, were admissible against the latter. The court say, by Buchanan, J., the declarations would have been good against him (Godman) " as admissions re- specting his title, and are competent evidence against those claiming under him, who stand in his place, and hold the land subject to any imperfection of title which attended it in his hands." Dorsey v. Dorsey, 3 Harr. & John. Rep. 410, 426. In a late case, the declaration of one holding the legal estate by a deed in fee, that he was in truth a mere teustee for another, who had paid the purchase money, the declaration being made before such holder of the legal estate had con- veyed to a thiid, was offered in evidence against his grantee, the legal owner being in full life and capable of being examined as a witness, and within the reach of process. The question was very fiilly discussed whether he must not be produced and sworn ; but held not ; that his decla- rations were admissible on the general principle that the admissions of the grantor are equally admissible against the grantee as they would be against himself. Gibblehouse v. Strong, 3 Eawle, 43';. And see M'Pheake v. Hutchinson, 6 Serg. & Rawle, 295. See also Sims v. Meachum, 1 Bafl. Rep. 101, and Fatten v. Goldsborough, 9 Serg. & Rawle, 4'7, 53, 54, 55. So recitals in a deed to A., are evidence against a subsequent purchaser from A.'s grantor. Carver V. Jackson ex dem Astor, 4 Pet. 1 ; Crane v. Morris' Lessee, 6 Id. 598. The declarations of a landlord, while in possession, are evidence against his tenant who comes in after the declarations made. Jackson ex dem. Titus v. Myers, 11 Wend. 533, 536. And so, if before, it appearing that the landlord had placed him under a bond of indemnity against the daim of a third person. Marley v. Rogers, 5 Terg, 217, 220. It is sometimes a matter of nicety to determine whether the declarant and the party shall be said to hold the relation of predecessor and successor, so as to make the admissions of the former evidence against the latter. This difficulty has arisen mainly under the registry acts. In a writ of entry for White farm, both parties claiming under a deed from S., the deed by which the de- mandant claimed being the oldest, but not recorded. The tenant (defendant), however, pur- chased with actual notice of the first deed. This being shown, and that the grantor had fraud- ulently obtained and suppressed the first deed, held that his declarations were admissible to prove its existence and contents, as commg from one under whom the tentot claimed. Davis v, Spooner, 3 Pick. 284. In ejectment the plaintiff claimed the hcus m quo imder G., by deed, in which G. acknowledged payment of the consideration in the usual form Before this, G. had given V. a mortgage of the same premises ; but it was not registered when G. conveyed, nor had his grantee any notice. It being material to show that G.'s grantee paid the fuU consideration held that the acknowledgment in the deed was evidence of this in favor of G.'s grantee, and all claiming under Meq, and that too, as against V., the holder of the unregistered mortgage. Jack- son ex dem. Rounds v. M'Chestney, 1 Cowen's Rep. 360. Minor and Wright each had & separate mortgage from the same mortgagor on the same preimises. Minor's being recorded a few minutes before Wright's. Minor then admitted in writing that this was a mistake, and tha.t 320 Declarations against Interest, [CH. vill. neither mortgage had preference. Then the plaintiff acquired Minor's interest. Held that Minor's admission was evidence against the plaintiff. Beers v. Hawley, 2 Conn. R. 461. To warrant an exclusion of these declarations aa evidence against the successor, the transfer must appear to have been complete before they were made ; and accordingly, though the de- clarations were made after the date and signing of the deed, yet, being before the grantee's acceptance of it, they were received to affect him with fraud against creditors. Denton v. Perry, 5 Term. Eep. 382. In Louisiana the vendor's admissions are received, even after the sale is fully consummated, to affect him with the fraud, though it is held they shall not be extended to show fraud in the vendee. The courts proceed on the ground that an intention to defraud must he fixed on both, in order to make out such a case as shall nullify the transfer, and that the vendor's declarations are pertinent to the scienter or intention in himself, though not in the purchaser ; or, as Porter, J., expresses it, "the acts and declarations of the first are surely as good and as high evidence as any other that can be given, to prove fraud in him. They are of course not sufficient to show that the vendee acted from the same motive." Guidry v. Grivot, 2 Mart. Lou. Rep. {S. S.) 13, 15, A. D. 1823. The same learned court which made this decision had several years before, rejected an offer to prove such declarations of the debtor, even to show that he was in debt and insolvent. And they would not allow this, though the vendor had remained in possession of the property, up to the time of the declarations ; thus being more strict, as we shaU see by Willies V. Parley, and other cases cited infra, than even the English or other American courts. High- lander V. Pluke, 5 M. L. {1st S.), 442, 449, A. D. 1812. The court thus apparently standing in conflict with itself, on a similar question afterwards coming before them, in 1824, the year after the decision in Guidry v. Grivot, and the case of Highlander v. Pluke, being cited, Martin, J., deliver- ing the opinion of the court, remarked, that what was said in the latter case must be taken with the qualification that the debtor's admissions of insolvency were not to be taken as showing fi^ud in his vendee ; not as denying that they were receivable to prove fraud in the vendor who made them. The case of 1824 was a suit by the vendee of land, against a purchaser under a sheriff's sale, upon a fi. fa. against the vendor. The defendant set up the common defence of fraud against creditors, in the first sale ; and the acts and declarations of the vendors, after sale, were received against the plaintiff. The court said, " There cannot be fraud in the vendee unless there be fi^ud in the vendor. The defendants have, therefore, to establish the fraud of the latter. Por this purpose they gave evidence of the vendor's continued possession and contract of the premises, his hiring and selling part of the property conveyed ; his acting and holding himself out as the real owner of the premises. Praud is seldom established by direct evidence. The proof of it, inmost cases, results from numerous grave and concordant presumptions. Por this purpose, the conduct of one of the parties and his declarations are part rerwm gesiarum; all proper evidence to estab- lish fraud in him. They are not, however, evidence of fraud in the vendee. The existence of creditors to be defrauded may, and in many cases must be established by the admission of the vendor, or by judgments obtained against him, which are prima facie, though not conclusive evidence against the vendee." Martin v. Reeves, 3 Mart. Lou. Rep. (N. S.) 22. These oases in Louisiana should be considered in connection with WiUies v. Parley and others, cited infra. The Louisiana cases are given here, because they mainly relate to fraudulent sales of real estate. But two of them (Highlander v. Pluke and Martin v. Reeves) present the very case in which such declarations are receivable by the other courts as evidence directly against both vendor and vendee. That is to say, they are plain cases of possession by the vendor after sale, and up to the time when his declarations were made. These declarations are thus adducible as a part of the res gesia, as Martin, J., himself remarks in the decision of 1824. How it may have been with Guidry v. Grivot, in respect to the vendor's possession, the case does not state. If there was none, it certainly goes farther against the vendee than any other adjudication. If fraud in the vendor were essential, as Porter, J., observes, to avoid the conveyance, the vendee stands pro- tected until that fact is proved ; as completely so as if nothing were made out. He cannot be touched, except by the declarations of a third person, who cares nothing for his rights.' That person may come into court, and, without oath, admit a fact which takes away the vendee's farm. But, with deference, is it not a confounding of distinctions, to call such a declaration proof even of intention in the vendor ? A concurrence of intention on his part would be equally ne- cessary to make out the sale. Would it therefore bo competent for him to declare that he had sec: VII.] When admissible. 321 sold? K SMch. ex post fiicto declarations be admiaaible, two ooncurring admissions of vendor and vendee would be sufBcient to overreach the rights of creditors or any third persons. In Watson V. Williams (1 Harp. Eep. 447), the defendant offered a letter from one Smith, admitting a sale ; but the judge said Smith might as weU have been brought into open court, to sign certifi- cates, as the exigenoies of the defence might require. 1 Harp. 450. And see Robertson v. Crockett, 1 Terg. 203. To hold the contrary would seem to be the substituting a naked decla- ration for the fact which it declares to have existed. It may as well be false in stating a previous intention, as in stating any other particular fact. It is not made before the sale, so as to affect the vendee under the notion of privity; nor at the sale, nor during posaesaion, so as to make a part of the res gestas ; nor do we perceive how it can be taken from the category of mere naked Another distinction has recently been held in favor of creditors; that the recital in a post-nuptial settlement, setting forth the consideration of the deed, though evidence against others claiming under the settler, is not so against a creditor of the settler contesting the fairness and validity of the deed. Blow v. Maynard, 2 Leigh, 29. See also Dwight v. Brown, 9 Conn. Eep. 83. That the declarations of the grantor remaining in possession at the time, even though after sale, are evidence against his vendee, especially to establish fraud in favor of his creditors, we shall see infra, in connection with the same rule as appUed to personal property. Before such decla- rations can be received, however, it must appear distinctly that the declarant is an occupier at the time. Den ex dem Pickett v. Pickett, 3 Dev. 6. Very few cases conflict with the general doctrine which we have been considering. In one it was held that the admission of usury by a mortgagee, though made before the assignment, should not affect the assignee ; but the point passed very hastily, and has evidently been since given up by the court who decided it, as wiH be seen by several decisions supra. Appleton v. Boyd, 7 Mass. Rep. 131. And see Brindle v. M'Uvaiue, 10 Sergeant & Rawle, 282, 284, and Scott V. Coleman, 5 Litt. Rep. 349, that the admisaiona of the assignor before assignment shall bind the assignee"; and post, in these notes, that an admission, even after assignment, will affect the assignee, if made before notice to the debtor, and, by some strong authorities, even after notice. Clarke v. Waite (12 Mass. Rep. 439), which semi, denies admissions even before the deed, to affect the grantee. Was reconsidered and qualified in 14 Mass. Eep. 251. In ejectment, the plaintiff claimed that a mortgage given to the defendant by his father was a fraud on credit- ors, because the father was not indebted to his son. Held, that the declarations of the father, though before the mortgage given, that he was a debtor, were inadmissible evidence for the mortgagee, though such declarations, at the time of a settlement and striking a balance between them, would be admissible as a part of the res gestae. The plaintiff claimed by an attachment against the father and a sale of the premises in question, both being subsequent to the mortgage. Cook V. Swan, 5 Conn. Rep. 140. Here, both claiming under the father and the plaintiff by a junior title, the case, in order to be consistent with other authorities, should have received any of the father's declarations made before the attachment levied. In another case, the creditors of an insolvent offered to impeach his deed to the defendant, on the ground that just before the execution of the deed, the insolvent had proposed to another to make a fraudulent conveyance of the same premises to him, who directed the insolvent to apply to the defendant. This was re- jected as being res inter alios acta. Beach v. Catlin, 4 Day, 284. The learned reader will per- ceive, that according to acknowledged authorityj even in the courts of the same state where this case was decided, the declaration was res inter eosdem acta. In ejectment, the plaintiffs and defendants both claimed under Anna Erench, &fe/me covert; the former as heirs, the latter under a deed executed by her and her husband. The plaintiffs offered to prove, by repeated declara- tions of hers, both before and after the execution of the deed, but Which were made in the ab- sence of her husband, that she was coerced to execute by the threats and maltreatment of her husband. The court say : " It has been uniformly decided that the declarations of the grantor, made when the grantee is not present, prior or subsequent to the execution of the deed, cannot be admitted in evidence to invalidate the deed." Barrett v. French, 1 Conn. Rep. 354, 365. This was in 181&. A judge of the same court, fourteen years after, we have seen sajwa, in Norton v. Pettibone, on Barrett v. French, and some other of the above cases being cited to him, spoke of the opposite rule as too well settled to admit of question. It will be seen, before we Vol. I. 21 322 Declarations against Interest, [CH, Vlil. get through with real and personal property, that he was more than borne out in saying the contrary had been ruled twenty times within the last forty years. The following ease is treated as an exception to the rule. In an action of debt, to recover the statute penalty for maintenance in buying land of D. and his wife, while they were out of pos- session, it was held that their admissions that they were so out of possession, though made before sale to the defendant, they being alive and capable of being produced, were inadmissible. The court admitted the rule, that the confessions of a man are evidence in many cases against those who claim under him, but thought this case did not come within the rule. Nichols v. Hotchkiss, 2 Day, 121. But qitere. For their admission of claimer or disclaimer before the sale, might form a material ingredient in the question of possession. The admission seems, therefore, to have been a part of the res gesUe. All the cases agree that declarations, made by the person under whom the party claims, after the declarant has departed with his right, are utterly inadmissible to affect any one claiming under him. Gray v. Harrison, 2 Hayw. 292 ; Weidman v. Kohr, 4 Serg. & Kawle, 1V4; Patton V. Goldsborough, 9 Serg. & Rawle, i1, 53, 54, 55 ; Jackson ex dem. Watson v. Oris, 11 John. Rep. 437 ; Chess v. Chess, 1 Pennsylv. Rep. 32. Thus declarations by the grantor, that he had not made the deed, were rejected. Bartlett v. Delprat, 4 Mass. Rep. 102. So the admission of a mortgagor that the money is unpaid, made after he has assigned the equity of redemption, cannot be received against the assignee (Copp v. TJpham, 3 N. H. Rep. 159) ; nor the admissions of the grantor that he had not taken the incipient steps necessary to his title, the admissions being after he had conveyed to the grantee (Packer's Lessee v. Gonsalus, 1 Serg. & Rawle, 526, 536, 539) ; nor to show in what character the grantor held the land (Brindle v. M'llvaine, 9 Serg. & Eawle, 74, 11); nor to show fraud in the deed as to creditors (Alexander v. Gould, 1 Mass. Rep. 165 ; Clarke v. "Waite, 12 Id. 439 ; Phoenix v. Ingraham's Assignees, 5 John Rep. 412, 415, 426) ; even though they be sworn admissions in answer to a bill in chancery. Doyle v. Sleeper, 1 Dana's Rep. 531. The propriety of the testimony depends upon two matters : first, that the declarations were made while the declarant has an interest ; and secondly, that the party to be affected claims under him. Per Rogers, J., in Reed v. Dickey, 1 Watts' Rep. 152, 154. Even & it be doubtful whether the declaration was before or after the deed, they cannot be received. Stockett V. Watkins' Adm'rs, 2 Gill & John. 326, 343, 344. An exception is, as in case of a will supra, where the subsequent declarations are resorted to purely as indicative of the sanity or in- sanity of the grantor, the grant being impeached on the ground of insanity. Here, the declara- tions being relevant, though after the deed, may he received. Chess v. Chess, 1 Penn. Rep. 32. Secondly. The same rule, which we have considered in its application to real estate, extends to personal property, whether in possession or in action. The admissions or declarations of the assignor, vendor or holder of personal property, made before the sale, assignment, or other departure with his interest, are evidence against his vendee, assignee, or other persons claiming under him, immediately or remotely, either by act and operation of law or by the acts of the parties. And his declarations with regard to his rights and liabilities are, in like manner, evi- dence against any one coming, after such declarations made, into his place, or representing him in respect to such rights and liabilities. 1. By act and operation of law. The defendant claimed the goods by his marriage with N In trover for goods the plaintiff was allowed to prove that, before the marriage, N. admitted the goods belonged to him, the plaintiff. This was received against the defendant, on the express ground that he claimed the goods under N. Waring v. Wairen, 1 John. Rep. 340. The admis- sion was assimilated, by Spencer, J., to one made by the vendor of real estate, which might be used against the vendee in ejectment. So, where the defendant attached goods which had before been attached by the plaintiff, to satisfy a note given him by the debtor, the defendant insisted that the note was given to defraud him and other creditors. Held, that the debtor's admissions, that the note was on a fair consideration, should be received against the defendant. And in this case, on the construction of the statute which allowed the defence, such admissions were received, though made after the defendant had commenced his suit by a levy. Strong v. Wheeler, 5 Pick. 410. So, the acknowledgments of a bankrupt, made before he becomes such, are evidence against his assignees. Marks v. Barker, 1 Wash. C. C. Rep. 1 85, note a. But in trover by the sheriff, for goods of Churchill, against the defendant who had distrained the same goods, the latter offering Churchill's admissions to prove the demise upon which the defendant distrained, SEC. VII.] ' When admissible. 323 the sheriff objected, and the court aUowed the objection, because Churchill was a competent wit- ness. Alexander v. Mahon, 11 John. Rep. 185. The case is defective, in not stating whether the admission was made before or after the levy, though the reasoning of the court certainly leaves it to be implied that whether prior or subsequent would make no difference. Kennedy, J., in speaking of this case (Gibblehouse v. Strong, 3 Eawle, 451), thinks the admission must have been made after the levy by which the sheriff's rights attached ; and a majority of the court agree in repudiating the competency of Churchill as any objection to the testimony. Id. 438, 451. According to this last view of the case, in trovier for goods, founded on an assign- ment of them to the plaintiffs by one Judsou, in trust to pay the plaintiffs' debt and others, the defendant having attached them on the ground that Judson did not owe the plaintiff as he pre- tended, and that the assignment was therefore fraudulent, to prove the debt, entries in Judson'a shop-book, made before the assignment, were received against the defendant, he claiming under Judsou by his attachment. And per Swif4, Ch. J. (with whom the other judges concurred) : " The shop-book of Judson would have been proper evidence between the plaintiff and Judson to prove the state of their accounts ; and, of course, was proper evidence in this action to show the indebtedness of Judson to the plaintiff." De Forest v. Bacon, 2 Conn. Rep. 633, 638. It is observable that this case of personal property is put on the same ground as Lady Dartmouth v. Roberts, the case of vendor and vendee of real estate mentioned at the beginning of this note. Both assume, as the premises, that the declaration would be evidence against the declarant him- self It is then made to follow that it is therefore so against ttie party claiming in his right. In Lord Ellenborough's phrase, the admission is res inter eosdem acta. In neither case is it put on the ground that the declarant is dead or an incompetent witness. The rights and Uabilities of an executor are subject to be affected by the declarations of his testators. Cox y- Baird, 5 Greenl. 105. And so are those of the executor of an executor by the declarations (e. gr., the inventory) of the first executor as to goods which he held, both as executor and guardian- Green V. Johnson, 3 Gill & John. 389. Otherwise as to the assets which he held as executor merely ; for the last executor is in law the immediate representative of the first testator, and so cannot be said to claim under, or represent the second, in respect to the rights or obligations of the first. Knapp v. Hanford, 6 Conn. Rep. 110, 174, 115, and note. The law that the executor of an executor shall administer on the estate of the first testator is now abolished in New York, and letters of administration, cwm testamento amnexo, are substituted. 2 R. S. 11, 12, § It. In assumpsit, for use and occupation by an executor, his testator's admission that the defendant was to pay no rent, and the reason, were received against the executor. Cox v. Baird, 5 Greenl. 105. And the acknowledgment of a debt, made by the debtor even after his arrest, if before his escape, is evidence against the marshal in an action for the escape. Per Bailey, J., in Rogers v. Jones, 1 Barn. rcrVe'th6-fes!tMt of possession (Brugin v. Chevarifet,-9 B. Mon. 28^); butia'nlemoraudmii in- ddrsfed on a fleld-bo6k by the surveyor, it not beildg made hj hiin in the discharge oT his duty, is not aiJmissible to prbve the death of a third person at a given time. Ridgeleiy v. Johnson, 11 Barb. 627. Nor are the mimiteS of a surveyor of lumber, v7ho is under no obligatidn to kge'p'a 'recftrd of 'h!^ 'saWei*, 'evidente of the facts stated in them (Ayerv.' Sawyer,- 32 Maihe, 162) ; ■fiibn^'snfih lidhutto mky'be uSedbyhimin establishing his Claim for the -Services. Witherell 'v.'Swan,'32 Maine, 247. But the addonnt'bboks of a party cannot he used by thd JJaTty pro- dticiig them to prove collateral facts (Batcheld^r v. Sanborn, 2 Poster (N. H.), 325 ; though they may be used by' the opposite party to proVe payment and other collateifal ftiatters. Lev^iu t. DiUe, 17 Mis. (2 Bennett) 64; 15 Mis. 106; Winants v. 'Sherman, 3 Hill, 74; 7 Barb. 107 • -Lo-vv V. Payne, 4 Comst. 247. In the case of a negotiable note, -sve have'seen that the debl'aratioiis of a prioT holder canildt in this state be shown in evidence against a party taking -the ^ame after its -inaturity (Paige v. Cag- ■win, ■? HiU, 384) ; but where a bank is'the holder o^' a adte pajrable at its counter, the maker being a customer of the bank, and having' On deposit a sum iuore than gufScient to meet the note and the note is acthally charged to the inaker -when it becdmes due, and Charged againsthim dn ' ivritulg up his pass-book, these entries of acts done may be showli in evidence against a person taking the note after it became due. Jermaia v. "WOrth, 6 Denjo, 342.;. S. C, 2 Seldeu'K'276.) (2) 4 T. & C, Exoh. 294. 344 Declarations where other Proof Attainahh. [ch. viil. pendent matter, whicli is not a necessary part of suoli entries, ought to be received. In the case of Knight v. The Marquis of "Waterford,(l) the accounts of a deceased steward were tendered in evidence, for the purpose of showing the liability of former lords of the manor to pay poor-rates on the tithes. On one side of these accounts, the steward had acknowledged the receipt from a tenant of rent for tithes ; on the other side was an entry •in dis- charge of the former item, by allowing the tenant a certain sum for poor- rates on the tithes. This second entry was rejected, on the ground that it was not directly connected with the first ; but Alderson, B., added, that if the amount charged had been stated to be a sum less the deduction of the sum on the opposite side of the account, it might then possibly have been admissible, on the authority of Stead v. Heaton.(2) In order to render declarations against interest available, it is not essen- tial that the deceased person, who made the entries, should have been a competent witness, whilst living, to prove the facts contained in the decla- ration.(3) This was expressly ruled in the case of Short v. Lee,(4) where the entries of a deceased member of an ecclesiastical corporation were ad- mitted on behalf of that corporation in a suit brought by them for tithes. In that case the person who made the entries would (before Lord Den- man's Act) have been incompetent to have been examined in favor of the corporation, on the ground of being a party to the suit. The declarations of deceased persons against their own interest are not the less admissible in evidence, because the facts to which the declarations (1) 4 T. & C. 283. (2) m swpra, p. 339. See also Doe d. Englake v. Beviss, 18 L. J. (N. S.) C. P. 128. (3) In Warren v. Greenville (2 Str. 1129, cited supra, p. 339), it was said by the court, as a reason for receiving an attorney's books, that he might have been examined if living, and his books were, after his decease, the best evidence. A similar qualification of the rule is reported to have been laid down by Bayley, B., in Higham v. Eidgway (10 East, 109) ; but none of the other judges advert to it. And in Gleadow v. Atkin (1 C. k M. 423), Bayley, J., repudiates the doctrinethac declarations cannot be received, except where the declarant might have been exam- ined in his fetime, and doubts whether he ever used the expressions attributed to him in Higham V. Eidgway. His Lordship refers to Searle v. Barrington (Lord), 2 Stra. 826 ; S. 0., 8 Mod. 219 ; 2 Lord Eaym. 1370 ; Bosworth v. Cotchett, infra; Doe d. Eeece v. Eobson, 15 Bast, 32 ; and Middleton y. Melton, 10 B. & C. 326, as showing that no such qualification exists. See the obser- vations of the master of the rolls in Short v. Lee, 2 J. & W. 464. See aJso an argument relative to this point in Barker v. Eay, 2 Euss. 11. (4) 2 J. & W. 464, The rule admitting entries in evidence is not founded upon the ground that the party making them would, if living, be a competent witness to prove the facts so entered; for such entries aie often admitted, aa in proving an account where the party making them was not a competent witness. And such entries have been admitted where the person making them has become insane. Holbrook v. Gay, 6 Gush. 215. In case of death. Eembert v. Brown, 14 Ala. 360. See, also, Bradley v. James, 22 Eng. Law & Eq. 14. But a list of debts, made by deceased, and pur- porting to contain them all, is not evidence to show that he did not owe a particular debt not named. Harrison v. Cordle, 22 Ala. (N. S.) 451 SEC. Vll.] Proof of Declarants Situation. 845 relate, may be proved by evidence of another kind — as, for*instance, by a living witness. This rule may be founded, partly on the great credit due to declarations against interest, and partly on the inconvenience of proving the failure of other evidence. It was held, in Middleton v. Mel- to]?,(l) that the entry made by a deceased collector was proof of the fact of the money having been paid, without calling the persons who paid it, or showing that they were dead. And it appears, from the facts of earlier cases, that the same understanding of the courts as to this point is to be imphed from them.(2) In order to use in evidence entries made by agents for others, on the ground of having been made against interest, it wUl, in general, be neces- sary to show, by testimony dehors the entries, that the person jnaking the entry was in the situation in which he purports to be. The character of the party making the entry must be established before the entry is read.(3) But there is a distinction where the ofice of the party making the entry is of a. public character — in which case the law will presume that a party acting in that capacity has been properly appointed(4) — and where the entry is made by an agent of a private individual ; in this case, proof of the agency will be required before the entry can be admitted. Thus, in the case of Short v. Lee, (5) account-books from the possession of a corporation entitled to an impropriate rectory, purporting to be ac- counts of their collector of tithes, were received, without proof aliunde, that the accounting party was really the collector ; on the ground that, by the charter of the corporation, it was their duty to appoint proctors to receive the tithes, and a corporation could not have received the tithes themselves. The point was said to be dissimilar to that decided in regard to collectors of incumbents in general, they being persons whose character depends on the pleasure of a private individual, who might or might not appoint. But in the same case, where the accounts of a tithe collector to (1) 10 B. & 0. 317. And see Poole v. Dioas, 1 N. C. 653, mfra. ■Where a clerk and agent dictates a letter to accompany a consignment of goods, the letter may- be shown in evidence without calling the clerk, though he he present in court. "Wollenweber v. Ketterlinus, It Penn. State R. 389. It is a part of the transaction. Van Rensselaer v. Morris, 11 Paige, 13. (2) See observations of Parke, J., in Middleton v. Melton, 10 B. & 0. 328. In the case. of Barry v. Bebbington (4 T. E. 514), which was tried in 1791, one of the memoranda was a receipt of a sum of money in 1786. (3) See by Lord Lyndhurat, C, and Bayley, B., in Davies v. Morgan, 1 0. & J. 590. Note 106. — So, where the receipt, entry, &c., is given in evidence as part of the res gestce, by the principal, to charge the surety, it must be proved to be genuine, in the usual mode of proving papers. Bernard v. Commonwealth, 4 Litt. 148, 161. See Hagaman v. Stafford, 2 Blackf Rep. 351 ; Den ex dem. Blair v. Miller ; Snavely v. M'Pherson, 5 Har. & John. 150, 151, 154. (The agency must be first shown, and after that, the acts of the agent in the execution of the business intrusted to him are the acts of the principal 2 Hill, 531. But the acts must appear to be a part of the transaction. Bailey v. Wakeman, 2 Denio, 220 ; S. 0, 2 Hill, 279.) (4) Vide post, ch. 9, § 1. (5) 2 J & "W. 464. 346 Entries hy Agent. [CH. viiT. an incuihbent -were produced in evidence, it was held to be necessary to prove aliunde, that tlre:persoii wliose book -was produced was authorized to collect the tithes. (1) And it seems that the mere antiquity of the book in which the entry is made will nOt dispense with the necessity for this pre- liniinary proof of agency,(2) although where an aceount-bodk is produced from the proper custody, very slight proof, that the party filled the alleged character, will be sufficient, and where the internal evidaice is very strong, Such proof may be altogether dispensed with.(3) In Doe d. Webber v. Lord George Thynne,(4) upon a question whether certain ancient books, produced from the archives of the Dean and Chap- ter of Exeter, were the books of recteivers debiting themselves with the receipt of money, and on that account admissible in ^evidence, it was held, ^that the similitude which the entries bore to the books of Receivers, of the salme body in modern tiihes, was not a safe and adequate ground for pre- Suiiiing 'that the ancient bodks were kept by persons of the same character and description, and accounted upon as euch. But, on its appearing that some of the entries in the ancient books (not relating to the matter in ques- tion) imported that one A. B. was therein accounting to the dean and chapter for money >paid to himself, with the 'receipt of which he therein •debited himfeelf in Such forms as solvit w,{hi, solvit per me, the court thought that this was strong internal evidence that the books were actually receiv- ers' books.(5) Entries, ■when sufficient. ■It will be no objection to the admissibility of an account in which a deceased ;person charges himself with the receipt of money, that such account does not show for whom the money was received, provided that fact can be established by other proo£(6) Entries against interest will be admissible if written wholly or in part by the party charged, though not signed by him ;(7) so if they are signed by him, though written by another person,(8) or even if they were neither written nor signed by the party hiriiself, provided it can be proved that they were made by his authorized agent, or ■were ' adapted by himself, as in the case of accounts delivered by a steward at an audit.(9) And even (1) 'See ■also' Oarringtonv. Jones, 2'Bim. & Stu. 135, 1-40; Pferigalv. Nicholson, 'Wightw. 63. (2) Manby v. Curtis, 1 Price, 225 ; Daviea v. Morgan, 1 0. ■■& J. '590 ; Short v. Lee, 2 J. & W. 464, 466. (3) -See Brnne v. Thompson, C. ft Mm'sh. 84. 1(4) '10 Eiist, 208. '(5) 'See alsb Exeter (Mayor) v. "Warren, 5 Q. B. Tt3. (6) RoWeTr.Btenton, 3 M. & R. 268, 270. 1(1) BaiT»y v. Betibiagton, 4 T. 'R. 614 ; RoWe v. Bttaten, 3 M. & B. 261, 269 ; i)oe d. Boden- ham V. Colcombe, 0. & Marsh. '155. (8) Doe d. Litchfield (]!!4rl)V.'Stacey, 6 G.'& P. 139. (9) Doe d. Graham v. Ha^wkins, 2 Q. B. 212 ; Exeter (Mayor) v. 'Wdrrtn, 5 Q. B. 173 : D06 d. Sturt V. Mobbs, 0. & Marsh. 1. SEC. VIII.] Entries mdde in the Coutse of Business. 347 if the party who actually made out the accounts be alive, it is not neces- sary that he should be called as a witness, though his non-production may be matter of observation to the jury.(l) But in the absence of some proof of agency, entries cTiarging a deceased party will not be receivable. Thus, in the case of De Eut^en v. Farr,(2) it was held, that accounts of rent, signed by a person styling himself clerk to a steward, but not shown to have been employed by such steward, otherwise than by the accounts themselves, were not evidence to prove that the rent liad "been received. The handwriting of a deceased party, charging him'Self, need not, how- ever, be proved, after a lapse of thirty years, provided the book contMh.- ing the entries be produced from the .proper custody.(8) SECTION yni. Exertion to the General Rule as to Hearswy^in Cases wTiere Deelatatibns 'wr Entries have heenmaBe'in-ihe'OoUrse-'of Office or Bvlsinegs. Fr6in the obserVatiohs of Several jiidges dh vaiidti's 6ccasi6h's, it 'nii^Tit seem that where there is a competency of knowledge, oi- at least peculiar means of knowledge in an individual making a declaration, and a total absence of interest to pervert the fadts to which be has spoken, his decla- ration's Vduld be 'adnii^sible evideiifce afte'r his death, eVeh though the declaration did not operate against his interest.(4) But these observatioiis are too loose, and too much at variance with the .principle of the cases which have been just considered, to be regarded'as establishing iany rule IdSs rigid than that above laid doivn, which requires the declaration to be against the interest of the person making it, before it can be received m evidence. DeolarationB, entries, &o., made in the ordinary course of business. There can be no donbt, however, that a rule exists, which allows -of wiitten entries made by deceased pefsdns bding received in evidehde, even though not made against their interest, pirovided that, in addition to a peculiar and personal knowledge of the facts, and the absence of all (1) lSefebyPatteson,'J.,'inDoe'd.'Gr4hknV.Ha-n>Iriis, 2 Q-B.^l"?. (2)4A. &B. 63. (3) %ynne'v. 'Tyrwliftt,''4 %. '* A. ^'fs. 'See'klsb'Bxeter (Mayoi') V. Mrr^n, 5'Q. B.''?'f3. (4) ' See by'Lord ^Httiborough,' C.'J., in si)ealdng of vicars' books; in- 'Eb'e d. 'Brune-v. SaTOns, T Bast, 29'0; by-Bkyley, B.,'On tie principle 'of tliis case.iii "GMddW. 'Atkin,'! C. &-M.'44o. See also by Lord •Bllenbbrough, C. J.,in t>oe'd. Eeece Y.- iRofisbk, 15 BSat,°34-; By Le Blanc, 'J., in Higham v. Eidgway, -iO East, 120. But "subsequeiit -authorities hav'e 'treated ' the cfe'e -of Hi^haiii v. Eidgw-ay, as decided on the -ground of intbrest ; ' by -Littledale, ' J., and Pai-k J., 1 0'B.' & 'C.326, 32'7; by lord -EyndhUrst.'CB.,' and Baytey, fe, 1 C. fcJ. 466, 46T ; ^by Bayley, B., 1C,'&'M."420. 348 Entries made in the [CH. Vlli. interest to pervert them, the entries appear to have been made in the ordinary course of official, professional, or other business or duty, and to have been immediately connected with the transacting or discharging of such business or duty, and , to be cotemporaneous with the transaction to which they relate ; and it appears that upon general principle there is no sound distinction between written entries and verbal declarations made under such circumstances.(l) (1) Vide svfpra, p. 304. And see by Lord Campbell, C, in the Sussex Peerage Case, 11 CI. & Pin. 113. Note lOY. — We have seen, by various cases in note tS, owfe, and in other places, and may see farther, by cases which we shall here cite, that aU memoranda, entries, ex prnie affidavits, certi- ficates, receipts, accounts stated, or other papers framed by private persons, are of themselves mere, naked hearsay. They are, therefore, never allowed to possess any intrinsic force, as proof against third persons (Steel v. Duncan, 2 Teates, 113 ; Den ex dem. Biokham v. Pissant, 1 Coxe, 220; Newson's Adm'r v. Douglas, 1 Harr. & John. 417, 423 ; Treat v. Barber, 1 Conn. Eep. 214, 218 ; Philadelphia Bank v. Officer, 12 Serg. & Bawle, 49 ; Eidgway v. Farmers' Bank of Bucks Co., 12 Serg. & Rawle, 256; Chase v. Smith, 5 Verm. Rep. 556); though we have also often had occasion to see that these, or any other declarations, may be made evidence by the in- tervention of some extrinsic circumstance. We come now to consider how far the written declarations of third persons, who are merely indifferent and totally disconnected with the party, may be received to affect biTn upon the mere circumstance that the writer is dead at the time when the declaration is offered. Heretofore we have seen that the receipt of such papers turned much upon the notion that the entry was at the time against the interest of the party making it. And the last case stated in the text, takes the distinct ground that the entry would not charge the servant ; and therefore it was not within Lord Torrington's Case. With how much propriety that ground can be retained by the English courts, aa being consistent with Lord Torrington's Case, win be seen by the remarks of our author, as well aa by Evans v. Lake, and some other kindred cases stated in the text. One of them (Hagedorn v. Reid), surely maintains no such prin- ciple : and this is not the only English case allowing the entry of a deceased person as evidence, merely because it was done in the usual course of his business. In Doe ex dem. PatteshaU v. Turford (3 Bamw. & Adolph. 890), the indorsement of a memorandum of service upon the tenant, on the duplicate of a notice to quit, appeared to be in the handwriting of a deceased attorney. And, it being proved that such indorsement was in conformity to the usual practice of his office ; that he prepared it himself, and took it with him on going out with two similar notices prepared at the same time, and returned, having indorsed the two other corresponding duplicates in the same way; and that the other two notices were served on the same occasion; although such services were usually performed by his clerks, the memorandum on the duplicate of the notice in question was allowed, with the other circumstances, as sufficient proof that it had been also served. See also per Parker, C. J., in Welch v. Barrett, 15 Mass. Rep. 384; and the remerks of the Lord Chancellor in Barker v. Ray, 2 Russ. 63. But however Lord Torrington's Case may have been considered by the English courts, it has generally been treated by our own according to ita more obvious principle ; not only as letting in all books of account kept by a deceased clerk, but all other entries or memoranda made in the courae of business or duty, by any one who would at the time have been a competent wit- ness to the fact which he registers. Welch v. Barrett, 15 Mass. Rep. 380 ; NiohoUs v. Webb, 8 Wheat. 326; per Duncan, J., in Farmers' Bank of Lancaster v. "WhitehUl, 16 Serg. & Rawle, 90. Accordingly, it has been held in a series of cases that, in the common action by a merchant for goods sold, the entries of his deceased clerk in the shop-books are admissible for the plaintiff. Lewis' Bx'r v. Norton, 1 Wash. Eep. 16 ; Hunter v. Smith, 6 Mart. Lou. Eep. (IS. S.) 351, 352 ; Herring v. Levy, 4 Mart. Lou. Rep. (K S.) 383 ; Clarke v. Magruder, 2 Har. & John. 11 ; King V. Maddux's Bx'rs, 7 Id. 461 ; per Parker, 0. J., in Welch v. Barrett, 15 Mass. Rep. 386. And see per Baylies, J., in Chase v. Smith, 5 Verm. Eep. 559. So of a like entry by the deceased SEC. VIII.] Course of Business. 349 clerk of an adminiatratrix, to prove the payment of money by her (Brown v. Brown's Adm'x, 2 "Wash. Rep. 151) ; or of a deceased bank clerk, to show that a depositor has overdrawn. Union Bank v. Knapp, 3 Pick. 96 ; Patton's Adm'rs v. Craig's Adm'rs, 1 Serg. & Rawle, 126. And a surviving clerk may be sworn to explain the meaning of an entry of a deceased fellow clerk. Hood V. Reeve, 3 Carr. & Payne, 532. On the same general ground, the memorandum of a re- survey, made by a deceased surveyor and indorsed on the original survey, is receivable. Suavely v. M'Pherson, 5 Har. & John, 150, 151, 154 ; Ringgold v. Galloway, 3 Id. 451, 455, 456, 457, contra. But, to be admissible, it must be particular, definite, and certain. Where it was made up of opinions and loose statements, it was rejected. Stoddard v. Manning, 2 Har. & Gill. 14V, 156, 151. The field notes of Lord Halifax's surveyor (he being dead) were received. Richard- son V. Carey, 2 Rand. 87. The entry of a deceased commissioner to take acknowledgments of deeds, charging for certain acknowledgments, were received in evidence, on a question upon the genuineness of certain deeds. Nourse v. M'Cay, 2 Rawle, 70. It should be observed that, in the two last cited Maryland cases, the notes of deceased sur- veyors, in proper form, are distinctly recognized as within the general principle. Thus, this highly useful and important class of entries come in by a double title ; that of boundary, noticed ante, note 87, added to the one we are now upon, which is evidently the most comprehensive of the two. The entries of surveyors, engineers and commercial agents, are obviously destined to very great variety and importance, as a branch of documental testimony. The most common application of this principle has been made to the entries of notaries and others, intended as memoranda of what they have done in demanding payment, and giving notice of non-payment upon promissory notes, in order to fix indorsers. In these cases, as we shaU see at large in our second volume, time and other circumstances being objects of minute attention, ' often demanding a variety of conduct, nicely, skillfully and promptly adapted to particular exigen- cies, prudence always dictates a fall and careful entry of every step ; and such is the usual course. A great majority of this kindof paper, with which the United States is almost literally flooded, is payable at incorporated banks. There its notarial management is generally confided to particular persons, who keep regular registers of what they have done upon each note. Some- times they act personally, and sometimes through their clerks ; and hence, the death of either leaves a good many instances of this kind of secondary proof. Sometimes the notary acts himself, and the entry is made by a clerk or amanuensis, retained for the occasion. But in whatever form, it is now settled that these entries are admissible in evidence on the death of the person who is alone able personally to speak. The leading case on this question is that of Welch v. Barrett (15 Mass. Rep. 380, A. D. 1819), in which the court ground themselves expressly upon Lord Torrington's Case, and advance the general rule with which we began this note, as the true ground of that case. Welch v. Barrett was followed by the Supreme Court of the United States, in Nicholls v. Webb (8 Wheat. 326, A. D. 1823), by the Supreme Court of New York, in HalH- day V. Martinet (20 John. Rep. 168, A. D. 1822), by the Supreme Court of Tennessee, in Bell v Perkins (Peck's Rep. 261), and M'NeUl v. Blam (Id. 268), both A. D. 1823, and it has since been treated as the settled law. Per Duncan, J., in Farmers' Bank of Lancaster v. WhitehiU, 16 Serg. & Rawle, 89, 90; Wilbur v. Seldeu, 6 Cowen's Rep. 162 ; Butler v. Wright, 2 Wend. Eep. 369, 370, 375 ; Hart v. Wilson, Id. 513 ; Nichols v. Goldsmith, 7 Wend. 160. , Finally, several states have passed statutes regulating this notarial evidence. How many we know not. As to New York, see 2 R. S. 283, § 46 ; Id. 284, § 47 ; sess. 66, p. 395, 396, act of 1833, § 8. Our information, as to the statutes of other states, is derived incidentally through their reports, fi-om which we find there is something in Kentucky (7 Monroe, 555, 557), something in Tennessee (Peck, 261), and as to South Carolina, see infra. The principle is, of course, not confined to ofllcial acts by notaries ; but extends to any other acting in the line of the same business. If the notarial business and entry be done by a runner or messenger of the bank, it is the same thing (Welch v. Barrett, 15 Mass. Rep. 380), or by a cashier. Nichols v. Goldsmith, 7 Wend. 160. So, if the duty be done by the deceased notary, and the entry made by another, as by his daughter, imder his direction. M'Neill v. Blam, Peck's Rep. 268. But in such case, though the person doing the service be dead, the clerk or amanu- ensis must be produced, if ahve. It is not enough that he be out of the jurisdiction of the court. Wilbur V. Selden, 6 Cowen's Rep. 162. 350 Miiries made in ike [CH. Vlil. The forms of these entries are as various as the modes wiiich may strike the fancy of the per- son who does the business. But if ;Signiflcant and certain to a common intent, they are receivable. They have been considered under different modifications in several cases. NichoUs v. "Webb, 8 Wheat. 326 ; Halliday v. Martinet, 20 John. Rep. 168 ; BeU v. Perkins, 1 Peck's Rep. 261 ; M'Neill V. Ham, Id. 268 ; Butler v. 'Wright, 2 "Wend. 369 ; Hart v. Wilson, Id. 513 ; Mchols v. Goldsmith, 7 Id. 160. In Bell v. Perkins, the entry was quite general: "duly notified in wri- ting, 9th July, 1819, the last day of grace being Sunday, the 18th;" and so it will be seen of NiohoUs V. Webb and several other cases. The courts in South Carolina seem not to have gone so far as to receive such entries ia evi- dence. Thus, a deceased jailor's original entry in his prison-book, offered to prove the time during which a prisoner was in custody, was denied. Walker v. M'Mahen, 4 Const. Rep. 129. So, the usual entry of a deceased notary to prove demand and notice upon a promissory note. Williamson v. Patterson, 2 M'Cord, 132. Though this hag been remedied by statute. Id. note a. And see Dobson v. Laval, 4 M'Cord, 5'7, and Bank of S. Car. v. Green, 2 Bail 230 ; in which cases this statute is referred to, and the extent of a notary's territorial jurisdiction, and the form of his certificate under the statute, considered. Some of our courts seem to have been embar- rassed with the restricted notibn of entry against interest, which is still often imputed by the English courts as the principle of Lord Torrington's Case. We think it will be seen by the re- marks of our author, and the examination bestowed upon the question in Nicholls v. Webb) not only that no such principle is to be found in Lord Torrington's Case, but that the English courts themselves, especially at Nisi Prius, have several times acted upon the more liberal con- struction of that case. Indeed, in receiving one kind of this evidence, the learned court of South Caiolina have been more liberal than the courts of our other states. The former receive evidence ■ of mercantile accounts between vendor and vendee, not only by proving the entries of a deceased derk, but those of one absent from the state. Ehns v. Cheevis, 2 M'Cord, 359. In general, the cases agree that the entry, or other memorandum of the deceased, must appear to have been made at or about the time, as a memorandum of the transaction, and not be a mere subsequent declaration of what had been done, in the past tense. Farmers' Bank of Lancaster V. Whitehill, 16 Serg. & Eawle, 89. Accordingly, the letters of a deceased agent or friend, stat- ing what he had done as such, are not receivable. The court say, " such evidence is not hke entries in the usual and accustomed mode of business and dealing like Price v. Lord Torrington (1 Salk. 285), or in the ordinary course of official duty, as in the case of Nicholls v. Webb (8 Wheaton) ; nor within the principles or analogies of any of the intermediate cases, where the books or copies from books regularly kept by deceased persons in the usual course of business, have been admitted upon proof of the death, handwriting and usual course of dealing and trans- actions by them. It is no part of the res gesice, but a mere ex parte statement, not on oath, res mter alios acta. Morton's Adm'r v. Smith, 4 Monroe, 313, 314. So on a question of the defend- ant's diligence, the letters of his deceased agent, who resided abroad, were denied as evidence against the plaintiff. Earmingham Manufacturing Co. v. Barnard, 2 Pick. 532. The court take about the same range of remark as we have given from Morton's Adm'r v. Smith. On the same principle, and accompanied by the same distinctions, the ex p(wte affidavit of a notary's deceased clerk was rejected as evidence, to prove a notice of non-payment. Farmers' Bank of Lancaster v. WhitehUl, 16 Serg. & Rawle, 89. In an action on a policy, the protest of the deceased captain was held inadmissible to prove the loss. Patterson v. Maryland Ins. Co., 3 Har. & John, tl, 74 11. Chase, J., dissenting. Tet an extreme case was allowed to furnish an exception. And let- ters from an agent, who afterwards died, to prove a demand made of a debtor on a distant bar- barous coast, were received, the court putting their admissibility on the gi-ound of a necessity arising from the peculiar and extraordinary circumstances. Greenwood v. Curtis, 6 Mass. Rep. 358. And a still more extraordinary piece of testimony has been recently acted upon in Eng- land. A merchant had made a voluntary assignment to his confidential clerk. On liis death a letter or written declaration was found with his will, showing the assignment to have been ob- tained by undue influence on the part of the clerk. This was received, in connection with other circumstances, as evidence sufficient to set the assignment aside. Collins v. Hare, 3 Dow & Glark, 139, 146, 149, on appeal from the Irish chancery to the House of Lords. In Doe ex dem. Davy V. Haddon (3 Doug. 310), the oral declaration of a judicial officer (since dead), tendmg to show that he had been guilty of corruption in making an adjudication, was received as evidence SEC. VIII.] Course of Business. 351 to impeach his aot, But whether the usage of- the sessions to receive the declarations of a de- ceased husband as to his pla(Ce of settlement, could bS sustained, wag.doufeteql; though 'Wille^, J., thought that it might. Eex v. St. Sepulchre, 4Doug. 336, 33,8. The rule does not extend to mere oral declarations of the deceased. Per Parker, Oh. J., in Parmiugham Manufacturing Co. v. Barnard, 2 Pick. 534. But see what was said by the Lord Chancellor in Barker v. Bay, 2 Russ. 63. In no case, where, owing to some extrinsic circumstance, such as the death of the person mak- ing the entry, memorandum or other paper, or his being alive, and able to swear that it accords with the truth, it may be received in connection with that circumstance, is this any ground for the exclusion of oral evidence, as inferior in degree. Thus, though the deceased father may have registered his child's age in his family Bible, this does not preclude, testimony on the same point from any one having the requisite knowledge ; nor is it necessary to account for the absence of the memorajjdum. Berry v. Waring, 2 Har. & GiU. 103 ; Taylor v. Hawkins, 1 M'Cord, 164, ojife, note 92. And a memorandum of a prisoner's confession, made by a district attorney, need, not be produced. He may give oral evidence of the admission. Patton v. Freeman, Coxe's Eep_ 113. The use of memoranda made by a witness, and from which he testifies in coui-t, and the exteiit to which it becomes evidence, we have already partially seen, and shajU have occasion to consider more at large, when, we come to the title of the examination of witnesses. But th? , serious question, when the degree of this kind of testimony is looked to is, whether it be not itself inferior and secondary, so long as the ordinary oral proof appears to remain within the power of the party ; not whether the latter diall give way to the former. And accordingly the original entries of the deceased clerk of auctioneers, were denied as evidence of sales by him made for the plamtiffs to the defendants. The point was contended, and geems to have been holden, on the ground that the auctioneers were alive,, and competent witnesses, and their evi- dence, therefore, the best. Chase, Ch. J., and Nicholson, J., dissented, holding the testimony ad missible. They thought it was not inferior, in degree to that of the auctioneers. Walsh v. Gil- more, 3 Har. & John. 383. The learned judges, who dissentedj will find th6mselve,s fuUy sus' tained, \ij a late case in the King's ?ench, which we stated for another purpose, j Taunton, J., (1) Lord Eaym. 730. (2) S B. & Ad. sBo. (3) 3 B. & Ad. 898. SEC. VIII.] Verbal Declatations. 368 in the language of tlie report. The expreisSioti ^as, however, referred to by Lord Denman, 0. J., in the 6ase of The King agt. Cope,(l) without disapprobation. Eutriea admissible tliougli better evidence attainable. It has been contended also,(2) that entries of this riatilre are not admia- siblfe when better evidence is attainable ; but tliis limitation of the rule was repudiated by Tindal, C. J., who observed : "It has been argued that the decision in Doe v. Turford can only be supported on the supposition that fio other CAddence could have been given but that which was received. But that is carrying the case further than the facts warrant : for there might have been persons present when the notice was served. In the present case, it would operate as a great hardship to require the testimony of persons who might have been present. The clerk who presented the bill could scarcely, at the distance of two years, point out who it was that answered his application : and if it were necessary to call the persons who resided at the place of presentment, the expense and inconvenience would be enormous." In this respect, therefore, entries of this description stand upon the same footing as entries or declarations made k^^hHt interest.(S) Verbal declarations. It appears also that the rule is not confined to written entries, but^ ak in the case of declarations against interesti(4) a verbal statement, made in the course of duty and under the other conditions expressed in the rule, will be admissible in evidence. In the Sussex Peerage Case, Lord Gamp- bell remarked, " where a declaration by word 6f mouth, or by writing, is made in the feourse of the business of the individual making it, then it may be received in evidence, though it is not against his interest."(5) la order to lay a foimdation foi the admission of entries made in the course of business, it must, as in the case of declarations by an agent made against his interest, (6) be first showri that the party Was employed in that business ; and it has therefore been held, that bodkS in the hand- writing of a party, sent by him after he had ceased to be an agent to a . joint stock company, were not admissible in evidence against the directors of the .company, unless it could be shown that the books were kept by him as such agent.(7) (1) t C. & P. 'T20, >12i: f2) In Poble t. DieaSj I N. C. 649, 651. (S) Vide Supra, p. 344. (4) Vide swpra, p. 304, where cases on the subject are cited. (5) llCl.ABin.113i (6) Vide sVi>ra, p. 345. (7) Shrewsbury v. Bloiiht, 2 M. & G. 475. 364 Entries in Course of Business. [CH. VIII. Entries not evidence for parties in privity. Entries and memoranda, of the nature under consideration, seem not to be admissible for parties in privity witli the persons who made them. For although the principle on which such declarations are received, does not depend on the future use of the declaration, still the actual event of its being made available for persons in privity with the maker would, it is conceived, in general, be regarded as proof of an existing motive of inte- rest, sufficient, according to the terms of the rule, to exclude the evidence. It has been seen, in the case of *Outram v. Morewood,(l) that entries, ad- mitting a fact adverse to the interest of the person making them, were not allowed to be used for the benefit of persons claiming under the maker. Although no general rule has been laid down by the courts on the sub- ject, even as regards declarations against interest, and although the admis- sibility of that species of evidence rests on a different kind of presumption from the evidence under consideration, yet it is conceived that, in both instances, the declarations can only be made use of by strangers in interest. Indorsements on bonds. There are two remarkable decisions respecting indorsements of interest on bonds and notes, in which it has been held that indorsements, by the obligee or payee, of the payment of interest or part payment of the prin- cipal, as having been made in the course of business, were admissible in evidence for a party claiming tmder the obligee or payee, in order to rebut the presumption of entire payment, which would arise from lapse of time ; though it did not appear by negative evidence, but that the decla- rations might have been made at a time when they would have promoted the interest of the representatives. It is proper to observe, however, that the indorsements in these cases have been represented, by great authorities, simply as declarations against interest. But as they may be considered perhaps as falling within the principle of both rules, it has been thought advisable to defer their examination until those rules had been each sepa- rately discussed. In the case of Searle v. Lord Barrington,(2) which was an action on a bond, brought by the plaintiff as administratrix of the obligee against the (1) 5 T. R. 121 1 Ante, p. 335. (In MoKnight v. Lewis (5 Barb. N. T. R. 681), the certificate of a notary, sho-wing the protest of a note and notice to the indorser, made by him while he was not interested in the note, was held competent evidence of the facts stated in it, in an action on the note brought by the admin- istrator of the notary, the note having been purchased by the latter some time after its dishonor and protest.) (2) 2 Str. 126 1 S. 0., 8 Mod. 2T9 ; 2 Lord Raym. 1310 ; 3 Brown P. C. 535 ; 3 P. "Wms. 391 ; 2 Eq. Oa. Ab. 414, n. to Oa. 16 ; 12 Tin. Ab. 85. 'With reference to this case, see Glynn v. Bank of England, 2 Yes., sen. 42 ; Turner v. Crisp, 2 Str. 821 ; Rose v. Bryant, 2 Oampb. 323 ; Bosworth T. Cotohett, and Gleadow v. Atkin, infra. SEC. vni.] Indorsements on Instrument. 365 defendant as administrator of the obligor, the defendant insisted on the length of time that had elapsed between the date of the bond and the com- mencement of the action, which was about twenty-seven years, as raising a presumption that the money had been paid : in answer to this, the plain- tiff offered in evidence two indorsements on the- bond(l) in the handwrit- ing of the obligee, one dated in December, 1699, the other in March, 1707, purporting that the whole of the interest had been paid up to the time of these dates.(2) Pratt, 0. J., before whom the action was first tried, rejected the evidence(8), on account of the inconvenience which would arise from allowing the obligee, in whose custody the bond always remains, to make such indorsements, whenever he might think proper. The plaintiff was accordingly nonsuited. But after an argument in the Court of King's Bench, on a case stated for the opinion of that court, the other three judges held(4) that the indorsements in question ought to have been left to the consideration of the jury ; " for the jury (as the report in Strange states) might have reason to believe that it was done with the privity of the obligor ; and the constant practice is for the obligee to indorse the payment of inte- rest — and that for the sake of the obligor, who is safer by such an indorse- ment than by taking a loose receipt." The report in 8 Mod. is full and strong to the same effect. "It is the daily practice (says that report) to make such indorsements on bonds, and generally at the request of the obligor; and this is the best and surest evidence of the payment of the money, because acquittances and notes may be lost, whereas indorsements will continue as so many brands on the bond, into whose hands soever it falls, as long as the original, which creates the charge, shall continue." The nonsuit was not set aside, because at that time there was a prevailing notion, that as the plaintiff had been put out of court by the nonsuit, the court could not order a new trial. The plaintiff afterwards brought a new action, which was tried before Lord Eaymond, C. J. ; and the same in- dorsements were again offered in evidence, to repel the presumption of payment of the principal. The counsel for the defendant objected to the evidence,(5) on the ground that it did not appear when those indorsements were made, otherwise than by the iadorsements themselves. But Lord Eaymond was of opinion that the indorsements were evidence to be left (1) See 3 Brown, P. C. 593, and 2 Lord Raym. 1370. (2) The dates will be fovind to be aa follows : The bond wag dated in June, 169Y ; the fiiut indorsement was in December, 1699 ; the second in March, lYOI ; the obligor died in 1710 ; the plaintiff's letters of administration were obtained in July, 1723; the first action was tried before Pratt, C. J., in 1724 ; the second aolaon before Lord Eaymond, 0. J., in 1726. The writ of error in the Exchequer Chamber was in 1729; and the judgment of the Exchequer Chamber waa affirmed, on appeal to the House of Lords, in 1730. See the reports in Strange and Brown. The time of the obligee's death is not stated in any of the reports. (3) See the reports in Strange, and 8 Mod. (4) See the report in Strange. (5) See the report in Brown. S66 Entries in Course of Business. [CH. Vlil. to tlie consideration of the jury, and therefore allowed them to be read ; and (as one report statess) other circumstantial evidence being given to induce the jury to believe that the bond had not been satisfied, (1) the plaintiff had a verdict. The defendant's counsel tendered a bill of exceptions, which ■was sealed by the chief justice ; and a writ of error was brought in the Exchequer Chamber. The errors were twice argued in the Exchequer Chamber, and the judgment of the Court of King's Bench was affirmed.(2) A writ of error was then brought in the House of Lords ; and after coun- sel had been heard on this writ of error, and the judges had delivered their opinions seriatim, the Housfe of Lords af&rmed the judgment of the Exchequer Chamber. The pounds of the decision in the Exchequer Cham- ber, and in the House of Lords, do not appear in any of the reports.(3) Indorsements on note. This case has been followed by that of Bos worth v. Cotchett,(4), deter- mined in the House of Lords. In that case the payee of a promissory note had written indorsements of the half-yearly payment of interest, from the time of making the note till his death (which happened within six years of the date of the note), and the Hke indorsements had been written by his executor (who died before the commencement of the action) ; and it was adjudged, that these indorsements were admissible in evidence, in answer to a plea of the Statute of Limitations ; though there was no ex- trinsic evidence offered of the time when the indorsements were made, and though more than six years had elapsed between the death of the maker of the note, and that of the executor. But now by the stat. 9 Geo. IV, c. 14 (commonly called Lord Tenter- den's Act), § 3, it is enacted, that " no indorsement or memorandum of payment, written or made upon any promissory note or bill of exchange, by or on behalf of the party to whom such payment should be made, shall be deerned sufficient proof of such payment, so as to take the case out of the Statute of Limitations."(5) (1) Ibid. (2) According to the report in Strange, five judges thought the evidence admissible ; two were of a contrary opinion. The report in Brown states that the judgment was affirmed by the opin- ion of all the judges. (3) Upon the argument in the case of Bosworth v. Cotchett, Lord Eldou directed the record in Searle v. Barriugton to be examined, and it appeared that there was no mention of any circum- stances to show that the indorsements were made before the presumption of payment could have arisen. But in Gleadow v. Atkin (1 C. & M. 410, 421), Baylay, B., s^d that he had discovered, by hia own research, that evidence was given of the time when tlie indorsements were made. It appears, from a note in Brown's Bepqrts, that Comyns, B., was for revising the judgment m Searle v. Barriugton, and that lord Raymond, 0. J., Eyre, J., and Probyn, J., were absent (4) Tried at Leicester Sum. Ass. 1819, ibefore Kiohards, ,0. B. ; judgment jn the House of Lords, 6th May, 1824. (6) It has been suggested that this act was passed in consequence of the decision in Bosworth V. Cotchett. See by Vaughan, B., 1 C. & M. 428. 3E0. Till.] Indorsements on Instruments. S67 In tlie case of Gleadow t. Atkin,(l) it was keld, that an indorsement :'upon a bond in tke handwriting of the obligee, "which appeared to h^ave been made at or about the time when the bond was executed, but which was not proyed to have been ever seen by the obligor, stating that the bond was given to the obligee in trust for a third person, was admissible in evidence to connect the payments of interest with the bond, the bond being upwards of twenty years old, but interest having been paid within twenty years by the obligor to the third person. The authorities of Searje V. Barrington and Bosworth v. Cotchett were relied on, and the court appears to have considered these two decisions, as well as the case before them, to fall within the principle, that the declarations of a person having peculiar means of knowledge, having no interest to misrepresent, and making a declaration against hig interest, are admissible in evidence ^:^§r his death. Since the decision in this case, it has been enacted by the statute 3 & 4r Wm. rV, c. 42,(2) § 3, that all actions for debt, for rent upon an inden- ture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt oj- scire facias upon any recognizance, &c., shall be commenced and sued within twenty years after the cause of such actions or suits ; and by § 5, it is provided, that if any acknowledg- ment shall have been msade, either by writing signed by the party liable by virtue of such indenture, specialty or recognizance, or his agent, or by part payment or part satisfaction, on account of any principal or interest being then due thereon, the person entitled to such action may sue for the money remaining unpaid, and so acknowledged to be due, within twenty years after such acknowledgment, by writing or part payment pr part satisfaction ; and the plaintiff in any such action may by way of re- plication state such acknowledgment, and that such action was brought within the time aforesaid in answer to a plea of the statute. This statute does not contain any provisions corresponding with those in Lord Tenterden's Act, that an indorsement of payment made by the payee shall not be proof of the fact of payment, so as to take the case put of the operation of the statute. The law, therefore, with respect to in- dorsements upon specialties remains as before ; and if the question is properly raised by the pleadings, that is, where to an action upon a deed the defendant has pleaded the Statute of Limitations (3 & 4 Wm. IV, c. 42), and the plaintiff has replied a part payment within twenty years after the cause of action, an indorsement on the deed of such part payment will be admissible as evidence of the fact, even though the indorsement were made by the party to whom the payment was made, whether the plai,ntiff be himself that party or claim under him, (1) 1 0. & M. 410. (2) See the ooreesponding Irish act, 3 & 4 Tiot. c. 106, §§ 3?, 34. Entries in Course of Business. [CH. VIII. Proof of time when indorsement made. It may be questionable, however, whetber some evidence will not be required to sbow that the indorsement was in fact made at the time when it bears date. It has been held, that where indorsements of receipts of part of a bond debt were proved to have been made after the presumption of payment had taken place, they are inadmissible ;(1) Pratt, C. J., say- ing, that it differed from the case of Searle v. Barrington, where the indorsements appear to have been made, before they could be thought necessary to be made use of to encounter the presumption. Generally speaking, a presumption wiU be raised that a document or raemorandum was written at the time when it bears date,(2) and before Lord Tenter- den's Act this presumption was held, in the case of Smith v. Battens, (8) to apply to an indorsement of part payment made by the payee upon a promissory note. That case was decided at Nisi Prius by Taunton, J., upon the authority of Searle v. Barrington,(4) and Bosworth v. Cotchett.(5) But it has already been stated, that in the former of these cases evidence was given of the time when the indorsement was made.(6) In the latter case the argument, that unless extrinsic evidence was given to show when the indorsements were made, they could not be received, appears to have been urged without success.(7) In the case of Saun- ders V. Meredith, (8) where a receipt for the payment of interest within twenty years was indorsed upon a bond, there was also direct evi- dence of the payment of the interest. In the earlier case of Eose v. Bryant,(9) where the defendant produced direct evidence of payment of the principal sum and interest at a certain time within twenty years, the plaintiff was not allowed to encounter that evidence by an indorsement in the handwriting of the obligee, purporting that interest and part of the principal were paid at a subsequent time ; on the ground, that supposing the fact to be true that the bond had been satisfied by payment, it would obviously be to the advantage of the obligee to make such an indorse- ment, which might afterwards be used as evidence in an action on the bond. Lord Ellenborough, C. J., in this case observed, he was at a loss to see the principle on which such receipts in the handwriting of a cred- itor had sometimes been admitted as evidence against the debtor ; and (1) Turner t. Criap, 2 Str. 827. And see hy Lord Hardwioke, in Glynn v. Bank of England, 2 Ves., sen. 43. (2) Vide post, chapter on Presumptiom. (3) 1 Moo. & R. 341. (4) Supra, p. 364. (5) Svpra, p. 366 ; cited in Smith y. Battens aa Parr v. Crotchett, from Stark. Bv. (2d ed.) p. 1085. (6) Supra, p. 366, n. 3 ; by Bayley, B., 1 C. & M. 421. (7) See by Vaughan, B. (who had been counsel in the case), 1 C. & M. 428. (8) 3 M. & Ry. 116. (9) 2 Campb. 321. SEC. VIII.] Time when Indorsement made. 869 that lie was of opinion they could not properly be admitted, unless they were proved to have been written at a time when the effect of them was clearly in contradiction to the writer's interest.(l) It may, therefore, perhaps be doubted, whether the general doctrine, that a memorandum will be presumed to have been written at the time when it bears date, would be held now to apply to the case of an indorse- ment or part payment upon a bond, when such indorsement is relied upon by the party who made it, or by those claiming under him ; although it must be admitted that the case of Smith v. Battens,(2) would support such an application of the rule ; and that case has been cited by the Court of Common Pleas as an example of the doctrine.(3) But besides the strong opinion expressed by Lord EUenborough, C. J., in Eose v. Bryant,(4) such an indorsement made by the creditor himself would appear to bear a close analogy to the case of an account signed by a bankrupt charging himself with a balance ;(5) or of an I. 0. U". given by a bankrupt,(6) where, though such documents may bear date before the bankruptcy, if they are put forward in support of a petitioning creditor's debt, some evidence besides the date will be required to show that the instrument produced for that purpose was in existence before the act of bankruptcy took place.(7) The ground for requiring such proof is, that as a proceeding in bankruptcy is retrospective, and the object of it is to invalidate all transactions which have taken place between the act of bankruptcy and the time when the fiat takes effect, it becomes necessary, in order to support such an instru- ment, bearing date before the act of bankruptcy, to give evidence in addition to the date.(8) It is the interest of the petitioning creditor to support the commission, and the practice has been established owing to the jealousy which the law feels of a collusion between him and the bankrupt.(9) This reasoning appears to apply with equal, if not greater force, to the case of an indorsement of part payment made by the payee himself. Such an indorsement would, at first sight, appear to fall within the principle (1) Lord EUenborough appears to have considered that such indorsements were only evidence as declarations against Merest. (2) 1 Moo. & R. 341. (3) In Anderson v. "Weston, 6 K. C. 296, 302. (4) Swpra, p. 368. (5) Hoare v. Coryton, 4 Taunt. 560. (6) "Wright T. Lainson, 2 M. & "W. T39. (7) In Sinclair V. Baggaley (4 M. A'W. 312), it was held that a statement of accounts between a creditor and a bankrupt, by whom it was signed, and bearing date previous to the bankruptcy showing a balance due to the creditor, was prima facie evidence as against the assignees, in an action by them against the creditor, that it was written at the time it bore date. But tlie decision in this case has been greatly doubted. See by Alderson, B., in Gibson v. King, Car. k M. 458. (8) Per Cur. in Anderson v. "Weston, 6 N. C. 302. (9) By Lord Abinger, 0. B., in Sinclair v. Baggaley, 4 M. & "W. 318. Vol. I. 24 370 Entries in Course of Business. [CH, VlII. wMch admits declarations that have been made in the course of business or against the interest of the party making them. But when it is put forward by the party as evidence for himself, in order to take his claim out of the Statute of Limitations, it is upon general principles open to some suspicion, and would seem to require corroborative proof to show that it was really made at the time it purports to have been made. The rule as laid down by Vaughan, B., in the case of Gleadow v. Atkin,(l) is perhaps the most unexceptionable in such a case, namely, that where a document appears to be made at a certain time, it may go to the jury to say if it were really so made. Shop-book. The first section of the statute 7 Jac. I, c. 12, enacts, that the shop-book of a tradesman shall not be evidence in any action for wares delivered, or work done, above one year after the bringing of the action, except the tradesman or executor shall have obtained a bill of debt or obligation of the debtor for the said debt, or shall have brought against him some action, within a year next after the delivery of the wares or work done. And the second section provides, that nothing in the act shall extend to the mutual trading and merchandise between tradesman and tradesman. At the time of making that act of Parliament, there was an opinion growing up, that after a certain length of },ime, a man's shop-books would be evidence for him ; to prevent which the act was made.(2) But it appears by several authorities, that shop-books alone, unless- under the circumstances which have been noticed, are not admissible evidence, either within or after the year.(3) (1) 1 0. & M. 410, 426 ; Supra, p. 36T. (2) By Lord Hardwicke, C, 2 Yes. 43. (3) B. N. P. 232 ; Pitman v. Maddox, 2 Salk. 69 ; Price v. Lord Torrington, 1 Salk. 285 ; S. C, Ld. Raym. 132, HS ; Sikes v. Marshall, 2 Esp. 105, 145. See further, respecting shop- books, 12 Tin. Ab. tit. Evidence, 88, A, b. 15 ; Smartle v. ■Williams, Comb. 249 ; Blackeln T Crofts, Comb. 348; Lee v. Lee, Keb. 21; Cary's Eep. 45; Crouch v. Drury, Keb. 21, pi. 18-' Digby V. Steadman, 1 Esp. 328 ; Cooper v. Marsden, 1 Esp. 1 ; Ellis v. Cowne, 2 C. 4 K. 119. Note 108. — This is also the law of Alabama, Indiana, Kentucky, Louisiana, Mississippi, Mis- sowi and Virginia. 3 and 4 Griffith's Law Reg. U. S. pp. 362, 585, 461, 610, 696 and 1139. As to Vhrginia, shop-books were formerly evidence for the party, but the law ia altered. Griff. Law Reg. IT. S. 362. Farther, that they are not evidence in Iiouisiana, see Civ. Code, 2244; Cava- lier V. Coffins, 3 Mart. Rep. 188 : Syndics of Johnson v. Breedlove, 2 Mart. Rep. (N. S.) 508 ; and Herring v. Levy, 4 Mart. Rep. N. S. 383. Farther, as to Kentucky, see 1 Monroe, 80. Whe- ther books are not evidence in Indiana to the same extent as in Mw Jersey and New Tori; for which see in/ra? (^uere. Harrison v. Lftgow, 1 Blacikf. Rep. 301. And see this case at length slated imfra. In several of the States, the party's bo6ks, containing his original entries, may be adduced as evidence, and supported by his own oath. This is so in Connecticut, a state which we refer to as resting her practice on the same principle which is common to several others. Although Connecti- cut has a statute alluding to the party's oath, and giving an action denominated debt on book, which is, in some respects, peculiar to this state (3 Griff. Law Reg. U. S. 11, 18, Swift's Bv. 81), yet the SEC. VIII.] Entries in Booh of Account. 871 statute, in its terms, rather presupposes than enacts that the parties are to be sworn ; referring^ evidently, to a former practice in the courts, of receiving such testimony ; and still leaving the limits within which it is to be received, to remain as matter of judicial regulation : and the statute has always been treated as bearing that construction. 2 Swift's System, 166, ISl. "Perhaps it is safe to affirm that no action of book debt can be sustained, unless it be for articles, the sale and delivery of which may be proved by the testimony of the parties." Per Daggett, J., in Ter- rill V. Beecher, 9 Conn. Eep. 349. Original entries, aa evidence, are restricted in this state to charges in book account, of personal property sold and dehvered, of services performed and mate- rials found, and the use of any personal chattel hired and returned. 2 Swift's System, 167 ; Swift's Ev. 83. Although the rules as to competency are not so strict, in respect to this proof, as in most other states, yet the following prerequisites are laid down as the law of Connecticut, in order to secure full credit. " The book ought to be kept in a fair and regular manner, and the articles truly en- tered at the time of the delivery or the performance of the service, so as to be fionsistent with^ and support the oath of the party ; for the book is to be considered as the essential part of the evidence, and the oath of the party as supplementary to it. The entries should ba without rasure, alteration or interlineation. Merchants and traders should produce their day-books and ledgers, and so of mechanics whose business requires that mode of keeping accounts. The entries should also appear to be fairly made from day to day, in the usual course of their business. Where people make single entries only, the account should be fair, and properly dated. "Where the books are not regularly kept ; where there appear to be rasures, alterations, interlineations and additions ; and where the accounts are made out after the dispute has arisen, there is a strong presumption against their truth, and the party must have other proof to corroborate his testimony, to entitle >iim to recover. When a demand is made for the original books and entries, and it is refused, if the party refusing cannot assign a good reason for it, everything is to be presumed against him, that the nature of the transaction will warrant ; and the fact ought to be taken to be as contended by the other party, unless the contrary can be proved by disinterested testunony." Swift's Bv. 81, 82. Speaking of the origin and reason of this practice, a. learned judge has remarked, that it is " founded on a kind of moral necessity. The whole civilized and commercial world has, in sub- stance, the same thing. The principles of it, I beheve, were introduced into this country from Holland by the first settlers of New England. Its origin, doubtless, was in commercial transac- tions ; but its use became necessary in the common intercourse of life between man and man. That, in this common and necessary intercourse, there should always be witnesses either of the dehvery or payment of an article, could not be expected. Hence, a mutual confidence and an interchange of recollection became necessary, to furnish testimony founded on means of knowledge common to both." Per Brainard, J., in Beach v. Mills, 5 Conn. Rep. 496, 49t. The same general practice prevails in lUinois. 3 Griff. Law Reg. U. S. 423. We give, from the same writer, a summary of the practice of the state of Maine, which will be seen by the authorities from Massachusetts and New Hampshire, to be cited when we come to treat of the subject in a more general way, to coincide with the practice of those states. " In actions of assumpsit, for articles delivered, or for work and labor performed, the admission of proof by the book of the plaintiff himself, appearing to be in his own handwriting, and supported by his suppletory oath, is practiced in this state. Itis essential to this kind of evidence, that the charges appear to be in the handwriting of the party, and in such a state that they may be pre- sumed to have been his daily minutes of business and transactions, in which regard is had to the degree of education of the party, the nature of his employment, and the manner of his charges against other persons. When this appearance has been wanting, and the presumption cannot be made, the evidence has usually been rejected as incompetent. The book of the plaintiff, though supported by his oath, is wholly incompetent to prove the payment of money to third persons, by order, or charges of rent ; for better proof of such demands may be obtained. The books of de- ceased persons, the charges appearing in their handwriting, are admitted in evidence, although they cannot be verified by oath." 4 Qriff. Law Eeg. U. S. 1 005, 1006. As to MassachusetU, see also Griff. Law Reg. U. S. 518. The law of Pennsylvania is the same as Maine. Id. 264 The cases will be given under our general heads. And see Kelly v. Holdship, 1 Browne, 36. As to New MampsUre, see Griff. Law Eeg. IT. S. 47, 48, and 3 N. H. Rep. 156. 372 Entries in Course of Business. [CH. VIII. B7 statute, in Massachusetts, the plaintiff's account must be copied veriattm, and filed by the time his writ is served ; and if the defendant would set off an account, he must copy and ffle it so early as to give the plaintiff a reasonable time for inspection. 3 Dane's'Abr. 318, 319. The practice of allowing the party's oath to small money charges, is also peculiar to this state. Cash charges, not exceeding six dollars and sixty-six cents, may be thus supported. Shillaber v. Bingham, 3 Dane's Abr. 321. Per Putnam, J., in Union Bank v. Knapp, 3 Pick. 109. This is equivalent to forty shillings, and evidently arose from the analogous practice of allowing the party to support his charges to that amount in chancery, on accounting before a master. In Rhode Island, there is no statute on the subject ; but, by a long and continued practice, it has now become a kind of common law that account-boobs are evidence. The party offering the books must be first put upon his voir dire, and swear that the books produced are his regular . account-books, that the entries therein are the original entries, and were made at or about the time purported by the dates. All articles sold and delivered in the regular course of trade, and all kinds of service, and work and labor done, are considered proper charges in book account. 3 Griff. Law Reg. IT. S. 116. Mr. Angell, an eminent lawyer of that state, confirms this account, by saying that the law, with its history, is the same there as in Massachusetts, whose decisions are generally followed by the courts of Rhode Island. Money charges, however, are not admissible. 3 TJ. S. Law Intelligencer, 22'7. In South Carolina, the account-book containing the original entries is received in evidence when accompanied with the suppletoiy evidence of the oath of the party, clerk or other person making the entries, that they are true. 4 Griff. Law Reg. U. S. 864, and note 1. There is a statute recognizing, but not expressly authorizing, this kind of evidence. Boyd v. Ladson, 4 M'Oord, 76, 11 ; Blade v. Teasdale, 2 Bay, l'?2 ; Lamb v. Hart, 2 Bay, 362. The books of mer- chants, tradesmen and shopkeepers are conceded evidence. Poster v. Sinkler, 1 Bay, 40 ; Her- look's Adm'rs v. Riser, 1 M'Cord, 481. But a struggle was made to exclude mechanics' books. They were, however, held also admissible, with the books of some few others, whose accounts appeared to come within the same reason. Slade v. Teasdale, 2 Bay, 172 ; Lamb v. Hart, 2 Bay, 362; Gordon v. Arnold, 1 M'Cord, 517; M'Bride v. Watts, 1 M'Cord, 1. But the courts appear to be unwilling to extend the practice. Foster v. Sinkler, 1 Bay, 40 ; Lynch's Adm'r ads. Petrie, 1 Nott & M'Cord, 130. And a, ease which allowed the books of a ferryman to prove charges of ferriage (Prazier v. Drayton, 2 Nott & M'Oord, 471), was afterwards questioned (per Nott, J., in Boyd v. Ladson, 4 M'Cord, 77, 78), because ferrymen are not in the habit of giving credit. Upon the general principle, as adopted here, a carpenter's books have been received (Slade V. Teasdale, 2 Bay, 172); and a bricklayer's were said to be admissible (Lynch's Adm'r ads. Petrie, 1 Nott & M'Cord, 130, commented upon by Nott, J., 4 M'Cord, 77) ; especially it it- include materials furnished (Id.) ; on the same ground, a printer's (Thomas v. Dyott, 1 Nott k M'Cord, 186; Richards v. Howard, 2 Nott & M'Cord, 474); a tailor's (Deas v. Darby, 1 Nott & M'Cord, 436) ; a seine maker's (Serab. Story v. Perrin, 2 Rep. Const. Ot. 220) ; a miller's (Gordon V. Arnold, 1 M'Cord, 517) ; a physician's (M'Bride v. Watts, 1 M'Cord, 1 ; Lane v. McKenzie, 2 Bail. 449 ; Spencer v. Sanders, 1 Bay, 119) ; a miller's who saws and sells lumber (Darby y. Parrow, 1 M'Cord, 517 ; Boyd v. Ladson, 4 M'Cord, 77). See a review of several of these cases, by Nott, J., in Boyd v. Ladson, 4 M'Cord, 77, 78. But a scrivener's books, charging for services and commissions, cannot be received; nor a planter's (Note to Slade v. Teasdale, 2 Bay, 173 citing Watson v. Bigelow, for the first, and Geter v. Martin, MSS. for the second); nor a school- master's (Pelzer v. Cranston, 2 M'Cord, 328); nor a billiard table keeper's charging for games (Boyd V. Ladson, 4 M'Cord, 76). Besides, they are immoral. Per Nott, J., Id. 78. He compares such charges with those of showmen, rope-dancers and gamblers of every description, and denies that they are evidence, because the subject is immoral. Books of original entries of the party are not evidence in this state without his oath. Evering- ham V. Langton, 2 M'Cord, 157. It has been strongly intimated that original entries in a book are equivalent to a memorandum in writing ; and wiU take the case of services performed for, or goods delivered to, a third person, out of the Statute of Frauds. M'Bride v. Watts, 1 M'Cord, 384. We come now to the states wherein the admission of this evidence resta upon statute. In Delaware, the oath or affirmation of the party, together with his book regularly and fairly kept, is allowed in all cases to charge the opposite party for goods, wares and merchandise, sold SEC. Ylll.] JEntries in Books of Account. S73 and delivered, and in respect to other matters properly chargeable in account. The oath or a£Brmation must first prove that the book contains tho original entries, made at the time they bear date, and that it is the book of original entries of the party producing it, kept either by him- self or his clerk. This is all by statute. 4 Griff. Law Reg. TJ. S. 1068. , In Maryland, a book account is provable by the creditor's oath only where it is ten pounds (£10) currency or less. A statute provides a summary mode in which accounts, both of non- resident and resident merchants, tradesmen and manufacturers, may be proved by the deposition of such witnesses as would be competent to prove them at common law ; to which the creditor's oath must be added, that he has received no payment or security, 4o. 4 Griff. Law Reg. TJ. S. 942. The statutes give the form of the probate oath, and must be strictly followed. Smoot's Adm'r v. Bunbury's Ex'r, 1 Harr. & John. 136, 137, and note a; Dyson v. West's Bx'r, 1 Harr. & John. 561. The mere filing an account in bar is no proof of its truth in favor of the party filing it. Berger v. Collins, 1 Harr. & John. 213. The courts do not recognize book accounts as evi- dence on any other ground than the statute, and refused to receive them under the qualifications allowed by the oases in the state of New York. Owings v. Henderson, 5 GiU & John. 134, 142, 143. In Nbrth Garolina, books of account (by the act of 1756, ch. 4, § ) are to be received as evi- dence for goods sold or services performed, for all charges within iwo years, on the oath of the plaintiff that the account is just, and that he cannot otherwise prove the delivery, &o. ; and so for executors or administrators, on oath of tkeir belief, &c., and that they cannot otherwise prove the account. A copy of the book, on the like oath, may be received, unless the defendant, at joining issue, requires the original book to be produced. The like rule takes place between executors^ and administrators where both the original parties are deceased, the executors or administrators, being plaintifis, making oath as above. But no such oath is aUqwed, to prove any article or articles, the amount of which exceeds thirty pounds (£30). The defendant may contest the account by any lawful evidence in his power. No book account is admitted at aU (upon any evidence) for goods sold or services done, &o., but within five years before suit brought, except in cases of persons out of the government, or where the account is settled and signed. 3 Griff. Law. Reg. U. S. 224. Within the equity of this statute, a set-off may be sworn to. Thomequex v. Bell, Mart. N. C. Rep. 44. As to Tennessee, the account given by Mr. Griffith, of the statute, shows it to be a literal tran- script from that of North Carolina (supra). The additions mentioned are provisions for summary proof of accounts coming from another state ; and defendants are allowed to prove their accounts offered in set-off, in the same form as if they were plaintiffs. 4 Griff. Law Reg. U. S. 795, 796. This statute is partially noticed in Easly v. Eakin (Cooke's Rep. 338). In Ohio, on aU book accounts, if not of more than eighteen months' standing, the party himself may be examined under oath ; and of his testimony the jury are to judge. Tho courts hold that the eighteen months are to be calculated from the date of the last charge ; and that all kinds of books of account are admissible with the party's oath. 3 Grif. Law Reg. U. S. 403 ; James v. Richmond, 5 Hamm. Rep. 237, 238. But the courts will inquire, and see that the accounts are continuously and fairly kept, and not with a view to evade the limitation. An account so kept is esteemed an entire thing, like the evidence of any other chose in action. James v. Richmond, 5 Hamm. Rep. 237, 238. In Vermont, a statute gives the action of book account, directing that if the defendant plead any plea which shows, if true, that he ought not to account, the issue shall be tried by a jury. If found for ths plaintiff, the court is to appoint auditors. Original books of entries, and the oaths of the parties, each being a competent witness, are admissible evidence before the auditors ; and perhaps on any question arising on the acceptance of their report before the court. 3 Grif. Law Reg. TJ. S. 22. Both may be sworn and examined relative to their respective accounts, and cross- examined with respect to each other's accounts. This examination is general, and goes to all the circumstances in support of and defence against the accounts (Stevens v. Richards, 2 Aik. 81 ; Fay v. Green, 2 Aik. 336); though it is not a matter of course, that a party may testify respecting a mistake, after the books are closed and balanced. Whiting v. Corwin, 5 Verm. Eep. 451. But the defendant may testify to a warranty of the goods delivered to him (Stevens V. Richards, 2 Aik. 81); or that he paid for the goods, or received them for a pre-existing debt (Fay V, Green, 2 Aik, 386); and the parties may either of them testify as to the non-joinder of 874 Entries in Course of Business. [CH. VIII- the proper plaintiffs, where that inquiry is admissible before the auditors. Hilliker v. loop, 5 Verm. Rep. 116. And so to a settlement, or to payments and items in the party's account from which a settlement may be inferred. "Wales v. Corlew, 4 Term. Rep. 12. We come now to several states wherein books are receivable for the party who keeps them, without his oath, upon certain preliminary proof, derived from other sources, being first pre- sented. In Georgia, merchant's books ■ containing the original entries, with proof of delivery of the articles by the clerk, or, if he be dead, of his handwriting, are evidence. If there was no clerk, then, on proof of that fact, inspection of the books, and the reputation of the merchant for keep- ing correct accounts, they are evidence of goods sold, but not of cash charges. 3 Grif. law Reg. XT. S. 445. The following account of New Jersey, is given by Mr. G-riffith, himself an eminent lawyer at the time, residing in that state. Books of account are admitted as evidence of debt for goods and articles sold, work and labor performed by a man,, his servants, &c., as also for materials found and provided in the ordinary course of men's business and employments. The book must contain the original entries ; and be first proved to be such book of the party producing it. A ledger, or hook in which the original entries are posted up, is not evidence, nor admissible, other- wise than as used to facilitate, on trial, a reference to the original entries. If, however, the book of the party is kept ledgerwise, containing the original entries, and this is proved to be the man- ner in which he keeps his accounts, it is admissible. But books so kept are always received with suspicion ; and if; on the face of the account, it appears to contain fabricated entries, or such as are not original, or are evidently altered, it would be rejected. As to items in a book account for cash lent, money paid for another, Ac, whether such charges in a man's account can be considered as proved by an entry in his book, or, in other words, come within the legal acceptation of a book account, has not been determined by the ooarts. As to entries of special contracts, orders paid, kc, and in all cases where, from the nature of the transaction, there must exist higher evidence of the charges, than a man's own eiltry of them, such entries would be re- jected as not the proper subjects of a book account. But, in reahty, there is no settled law on this head ; and books regularly proved seem to be admitted with little restriction, subject, how- ever to be examined and weighed as to their truth and credit by the jury, with the advice of the court in point of law ; and open to be disproved in whole or in part by all legal testimony on the part of the defendant. The oath of neither party is admitted. 4 Griff, law Reg. TJ. S. 1299, 1300. And see Cole v. AftderSon, 3 Halst. 68. Whether a charge for money lent be receivable, the judges differed in Wilson v. Wilson (1 Halst. 94). They thought it might, and appear so to have held in Craven v. Shaird (2 Halst. 345). But the latter case was much questioned in Carman v. Dunham's Adm'rs (6 Halst. 189), where, the charge standing alone against the party, it was rejected. • An entry of cash paid for the defendant to a third person is not admissible. Jones v. Brick, 3 Halst. 369. The judges also disagree as to receiving original entries kept ledgerwise. By Kirkpatriok, C. J., in Wilson v. Wilson (1 Halst. 94), they have been received ', per Rossel, J., in leveringe v. Dayton (4 Wash. C. C. Rep. 698), they have been disallowed ; and he and Washington, J., disallowed them in tliat cause. The books are sufficiently identified, by proving that they are in the party's handwriting ; and that in one of them (the waste-hook) the witness now sees a charge which was true, and which the witness had settled, though he never saw the books before the time of the trial. Shute V. Ogden, 2 Penningt. Rep. 921. But it is not enough that the witness sees two or three charges, in the books, now produced, of articles which the witness had of the party. Here is nothing to show that it was a book of original entries made as the transactions occurred. It might have been a copy made just before the trial. Cole v. Anderson, 3 Halst. 68. Nor is it enough to warrant the reception of the books by a justice, that they were proved befbre him on a former trial, linberger v. latourette, 2 South. 809. In New York, as in New Jersey, this kind of evidence is not restricted to any particular class of citizens. See the remarks of Savage, C. J., in Rathbun v. Emigh, 6 Wend. 407, 409. The party is not admissible as a witness. To make the books competent, it must appear: 1. That there was a regular dealing between the parties; not merely a single charge ; 2. That the book- keeper had no clerk ; 3. That some of the articles charged were delivered ; 4. That the books produced are the books of account of the party; and 5. That he keeps fair and honest books, to SEC. VIII.] Entries in Books of Account. 375 be shown by those who have dealt and settled with him. When all this is shown, the books are competent evidence; and the judge may submit them to the jury. Vosburgh v. Thayer, 12 John. Rep. 461. And see Linnell v. Sutherland, 11 "Wend. 508. It seems to be no objection, that part of the entries are made by the party, and part by his clerk. M'AUister v. Reab, 4 Wend. 483. And proof that a mechanic had delivered two of the articles charged in his book, was held to satisfy the third requisition, in Vosburgh v. Thayer. LinneU v. Sutherland, 11 Wend. 568. See also per Sutherland, J., in the People v. Genung, 11 Wend. 21. In this state, too, though the courts adhere in other cases strictly to the rule that a witness must remember ordi- nary facts, independently of his memorandum made cotemporaneously, yet account-books for goods sold and deUvered being proved by a clerk, are memoranda which become in a degree evidence of themselves. Though the clerk can remember only from seeing the charges, yet the original entries made by him may be produced, and then they become evidence. Semb. per Savage, Ch. J., in Lawrence v. Barker, 5 Wend. 306. The following is the whole of the only reported case in Indiana, which we find in the books of that state upon this subject But we have none of its reports before us later than November, 1831 : " In assumpsit for goods sold and delivered, the plaintiffs, Lagow and others, to prove their demand, offered in evidence certain books of account, proved to be those of the Steam MUl Company. Held, that the books not being proved to be the plaintiffs', were inadmissible." Harrison v. Lagow, 1 Blackf. Eep. 307, Nov. 1824. We have thus, as far as our materials would admit, gone through with the several states which receive the party's entries in proof, and noted the local peculiarities of each as they arise, either upon statute or a difference in the application of the general principle upon which the party's books are receivable. We have seen that among these, Georgia,, New Jersey, New York, and perhaps Indiana, though they receive the entries, reject the party's oath; while Gonneciicid, Illinois, Maine, New Hampshire, Massachusetts, Pennsylvania, Rhode Island, South Ga/rolina, Delaware, Maryland, North Oairolina, Tennessee, Ohio, and Veirrrwnt, admit both. In respect to the last fourteen states, there are certain rules in common growing out of this mixed proof, which we next propose to notice ; premising that where, as in Maryland, or Vermont, the statute may have fixed the forms of probate, or prescribed the extent to which parties may testify, or given any other direction, our remarks will be so far inapplicable. With regard to the suppletory oath, the following particulars are to be considered : 1. Wherever a man's suppletory oath, were he plaintifii would be receivable, it is equally ao when the account is offered as a set-off Thomequex v. Bell, Mart. N. C. Eep. 44. 3. The objection that witnesses are interested, does not lie in respect to matters whereof the party's suppletory oath is allowed. For as he, having the greatest interest, is received, all others may be. Swift's Syst. (ed. of 1'796), p. Itl. And so though the merchant be called to prove hia account in another cause wherein he is interested, this cannot be objected (Black v. Shooler, 2 M'Cord, 298) ; as if he become insolvent, and be called to prove them for hia as- signees. Id. But it does not follow that because the party may be a witness, his wife may, though so far as interest goes, they would stand in pari ratione. But the wife is excluded, for the reason that her admission may interrupt the harmony of the matrimonial connection. Carr V. Cornell, 4 Verm. Rep. 116. 3. The oath must, it seems, in all cases, be administered in court ; and cannot be received in the form of a deposition. Frye v. Barber, 2 Pick. 65. The party must be sworn, and produce his books in court ; and his testimony cannot, like that of another witness, be taken on oommis- sioiL Nicholson v. Withers, 2 M'Cord, 428. His entries cannot be proved unless his book be present ; and a distant residence from the district affords no excuse for their non-production. Purman v. Peay, 2 Bail. 394. 4. The form of the oath, which is the voir dire, shows that the party is not a general witness. Shaw V. Levy, It Serg. & Rawle, 99, 100. And see Dodge v. Morse, 3 N. H. Rep. 232. But being allowed to testify concerning the principal subject, he may do so in respect to all collateral circumstances necessarily connected with it ; as the price, quantity, quality, time, delivery, per- formance of services, and generally in support or confutation of all articles properly charged, freely and fuUy. Swift's Ev. 83 ; Bryan v. Jackson, 4 Conn. Eep. 292 ; per Ellsworth, J., in Phenix v. Prindle, Kirby, 209; per Daggett, J., in Weed v. Bishop, 1 Conn. Rep. 131; and in Terrill v. Beecher, 9 Conn. Rep. 349; Shaw v. Levy, 11 Serg. & Rawle, 99, 100. He may ac 376 Entries in Course of Business. [oh. Vlil. cordingly prove the admissions of his adversary, or facts whence to infer an admission. Johnson V. Gunn, 2 Root, 130 ; Bryan v. Jackson, 4 Conn. Rep. 292. He " is permitted to state, in the first instance, only that the book produced is his book of original entries, that the charges are in his handwriting, that they were made at the times they purport to have been made, and at or near the time of the delivery of the articles, or the performance of the services. He may, how- ever, be cross-examined by the other party, in which case his answers become evidence, and he is entitled to give a fuU explanation of any matter in relation to which an inquiry is made on the cross-examination. But a cross-examination does not authorize him to testify to independ- ent facts, not necessary to the explanation of the facts respecting which he may have been ques- tioned upon the cross-examination. It does not make him a witness in chief in the cause." Eastman v. Moulton, 3 K H. Rep. 156. If the parties settle, but in terms except aU articles omitted in the credit, as to these the account is still open, and the party's oath may be received. Austin V. Meigs, 3 Verm. Rep. 58. And this though a note be given for the supposed balance. Id. But the parties are not unlimited witnesses. The plaintiff cannot testify to any special agreement of the defendant (Johnson v. Gunn, 2 Root, 130) ; and it is said not even to a promise to pay in- terest on the debt as it stands charged upon the book (per Ellsworth, J., in Phenix v. Prindle, Kirby, 209J ; nor to a charge of a double credit (Semb. Whiting v. Corwin, 5 Term. Rep. 451) : nor, perhaps, as to a mistaken omission of a charge on settlement, though he might as to the fact of the delivery. 5 Verm. 451. ByPundersonv. Shaw (Kirby, 150), he shall not be a witness in such a case. "Whether he can testify to a special agreement in any case, quere. See Kirby, 209; 2 Aik. 83, 389 ; 4 Conn. Rep. 292. But where any matter is pleaded in bar, or where, in any other way, a matter entirely collateral arises, the party cannot testify as to that. 2 Swift's Syst. 1'71 (ed. of 1V96). Thus he cannot testify to a release or a tender. Per Daggett, J., in Weed v. Bishop, 1 Conn. Rep. 132 ; and in TerriU v. Beecher, 9 Conn. Rep. 349. And in replevip, where a party's entries were in question, it was held, that he might be interrogated on cross-examination as to the book being his, and the time of the entry ; but that he could not be even cross-ex- amined as to other matters, aside from and entirely disconnected with the books, which arose and were drawn in question by that action. Shaw v. Levy, IT Serg. & Rawle, 99, 100. Nor is the party's oath receivable to take the case out of the Statute of Liipitations. Weed v. Bishop, 1 Conn. Rep. 128. ' The party claiming the account on his oath must answer all pertinent questions, even if the answer go to criminate him, or the account will be disallowed. Mattocks v. Owen, 5 Term. Rep. 42. 5. The party's general credit may be impeached, the same as that of any other witness ; e. g. it may be shown that he is unworthy of belief on his oath. Kitchen v. Tyson, 3 Murph. 314. So of his particular credit ; if he swears corruptly false as to one item, the whole testimony shall be rejected. Otherwise, if he merely mistake, or is not corrupt. In this, as in other cases, faHma in imo, falsvs in omnibus. Sanders v. Leigh, 2 Har. & M'Hen. 380. 6. The entry must be made by the very party who takes the oath. Eastman v. Moulton, 3 N. H. Rep. 156. If by a clerk, the party cannot be received till the death of the clerk be shown, or that he is, at least, beyond the power of the court. Sterritt's Bx'rs v. Bull, 1 Binn. 234. Not jndeed, then, can the party's oath be received ; but there must be other proof of the haudwritmg ; and this was held where the entries were made by the party's daughter, who had died. Karpser V. Smith, 1 Browne, app. 43. This is plain ; because the party then has the usual common-law proof at command, which is better than his own oath. And so where there are two parties partners, and the entries are made by one, he must be sworn, and he only, unless he be dead or absent from the state ; and then, when this is clearly shown, the other may be received. Poster V. Sinkler, 1 Bay, 40 ; Walker v. Parkham, 3 M'Cord, 295. So if the sole party be dearly shown to be out of the jurisdiction of the court, his handwriting may, be proved. Spence v. Sandei-s, 1 Bay, 119. But farther the courts wiU not go ; and though the party-enterer reside out of the state, if he be within it while the court is in session, his oath shaU not be dispensed with. Walker v. Parkham, 3 M'Cord, 295. Even his absence from the state was afterwards denied as an excuse, and proof of his handwriting and book was refused. It. is always in his power to attend, and it is his own fault if he do not. It is otherwise with a clerk, as in Elms v. Cheevis (2 M'Cord, 349) ; and the three cases of Foster v. Sinkler, Spence v. Sanders, and Walker v. SEC. viil.J Entries in Account Boohs. 377 Parkham, were all on executing wrlta of inquiiy. Such secondary proof is never allowed where the party appears and regularly contests the cause. Douglass v. Hart, 4 M'Cord, 25'7. But the books of deceased persons are considered as sworn to ; and come with the same force as books supported by the oath of living parties. Swift's Ev. 83 ; per Hosmer, C. J., in Dwight V. Brown, 9 Conn. E. 93 ; Prince, Adm'r, v. Smith, 4 Mass. Rep. 456, 458, senib. And the course, where the party has died, is to prove his handwriting, which then shaE be received as prima facie evidence of the services performed (where it is a case of service), and the materials delivered, and the retainer of the plaintiff to perform the services, just as it would be evidence both of the sale and deUvery of goods. M'Bride v. Watts, 1 M'Cord, 384. The personal repre- • sentalive may be sworn to identify the book and prove the deceased's handwriting. Dodge v. Morse, 3 N. H. Eep. 232. And where he proved that the entries were in the hand of a third person, who had not, as he thought, after diligent inquiry, been heard of for seven years, and that he knew of no other who could prove his hand, the account was allowed to go to the jury. Stevelie v. Greenlee, 1 Dev. 31'?. Where the books were burnt, it was held that the party might give secondary evidence of their contents ; but not by a copy from the party's account, verified only by his own oath. He should prove the original by evidence other than himself as he would any other paper. Prince v. Smith, 4 Mass. Eep. 455; Holmes v. Marden, 12 Pick. Eep. 169. We come now to the consideration of this evidence in its connection with the principle of " moral necessity," as it has been recognized in at least seventeen, and perhaps eighteen states of the confederacy, if not, as remarked by Brainard, J., in Beach t. Mills (supra), through " the whole civilized and commercial world." For the extent to which it prevails on the continent of Europe, the learned reader may consult the references by Mr. Angell, in 3 U. 8. Law Intelli- gencer, 18'r, and in Mr. Wheaton's note, in the 2d Vol. of his reports, pp. Ill, 118. In the eye of the English law, the party's books are less than secondary evidence for him. They are no evidence, being hearsay, of his own fabrication. And it, will be seen by aU the American decisions, that their departure from that rule gives no higher character to this sort of evidence than a secondary one. It is received upon the presumption, that unless this can be re- ceived, there will be a total failure of proof And whenever that presumption is repelled by its appearing, in any way, that the ordinary common-law proof does in tmth exist, in relation to aU or any of the items charged, the book proof is rejected as inadmissible. The reason for the ex- ception then ceases ; and the party can no more be entitled to introduce his entries, than he would be a copy of documental evidence, because he had neglected to obtain the original. He must, in such a case, first restore the presumption, by proving that what appears to be plainly in his power, is in fact placed beyond it. We are then to look, and see to what class of deaUng the law yiss prima fade ascribed a destitution of the usual means of proof; and we shall find a general concurrence among the several statutes, adjudications and dicta, in pointing to the daily sale and barter of merchandise and other commodities, and the performance of services and letting of ar- ticles to hire : circumstances so frequent in succession, and generally so trivial in their individual amount, that the procuring of formal proofs would not compensate for the time bestowed. In relation to these things, all mankind, with few exceptions, have fallen into the line of daily and brief memoranda, called accounts ; and the strong presumption always is, that entries in that form have been made, and that no other proofs exist. Such a presumption from the general and usual course of business, is a common act of the law. But whether that law wiU hazard facili- ties to fraud, by letting in book proof as the consequence of this particular presumption, is a question for its own wisdom to determine. 1. The more usual and important test by which to indicate the competency of this proof, is the subject matter of the book account. This is briefly said to be property sold and delivered, ser- vices performed, and materials found and provided, and the use of property hired and returned It is not considered an objection to entries of any charges proper in account, that the price was specially agreed on. 2 Swift's Syst. 128; Newton v. Higgins, 2 Verm. Eep. 366, 369, Property sold and delivered. This is of course confined to personal property (Swift's Ev. 83); and though the rule intended generally was of small values, and many items, it cannot be prac- tically governed by a distinction of a number and magnitude ; and two articles only— one T8 bushels of salt, and the other 132 gallons of rum — were allowed as proper subjects of this proof. Shillaber v. Bingham, 3 Dane's Abr. 321. So a single item of 2,088 lbs. of wool. Leach v 878 Entries in Course of Business, [CH. vm. Shephard, 5 Verm. Rep. 363. It may be of articles- supplied to the defendant's wife or chil- dren, where he has turned them away and neglects to provide for them (Swift's Ev. 84) ; or arti- cles for which the defendant agrees to pay in a particular mode, e. g., in goods or produce, or part in goods, and part in a note at the bank. Swift's Et. 84. So of lottery tickets, sold and delivered. Mills v. Brownell, 3 Term. Rep. 463. Entries were allowed in proof of necessaries advanced by a guardian to his ward. Mills v. St. John, 2 Root, 188. And a shopkeeper's charges for spirituous Uquors in small quantities were allowed in evidence, though he showed no license. Herlock's Adm'rs v. Riser, 1 M'Oord, 481. But to warrant a charge, the goods must be delivered in all cases (per Henderson, J., in Howell v. Barden, 3 Dev. 449) ; and, accordingly, the right to charge was denied where the articles were not deliverable till paid for in a particu- lar way. Read v. Barlow, 1 Aik. 145, 148 ; S. C, 1 Verm. Eep. 9T, by the title of Barlow v. Bead. Entries were made after the goods were ordered absolutely, yet, being before they were actually delivered, the book was disallowed in evidence. Rhoades v. Gaul, 4 Rawle, 404. The right to charge must exist at the moment of delivering the article, not arise afterwards, in consequence of some special circumstance or contract. Money delivered, to be applied by the defendant, but which is misapplied, cannot be charged. Bradley y. Goodyear, 1 Day, 104! Slasson v. Davis, 1 Aik. 73, 14. So money advanced in consideration of an agreement to deliver goods. Peck v. Jones, Kirby, 289. And where an infant agreed to work for the plaintiff, who furnished him with clothes, &c., but the infant left him in violation of the agreement, held that the plaintiff could not therefore charge, and give his charges in evidence, to maintaiu book debt for the advances. Terrill v. Beecher, 9 Conn. Rep. 344. Services performed. Swift's Ev. 83 ; Newton v. Higgins, 2 Verm. Eep. 366. This head includes an attorney's biU, which may be proved by his original entries (Charlton v. Lawryi Mart. N. C. Rep. 26) ; work done by the plaintiff's slaves for tlie defendant (Mitchell v. Clark, Mart. N. 0. Rep. 44) ; a postmaster's charges for postage, and a justice's charges for official ser- vices (Sargeant v. Pettiboue, 1 Aik. 355) ; work by the month, at a fixed price, payable at a future day (Pry v. Slyfield, 3 Verm. Rep. 246) ; services in making betterments on the defend- ant's land, being done at his request (Minor v. Erving's Ex'rs, Kirby, 158) ; repairs done by one joint owner of a; ship for auother (Bowers v. Dimn, 2 Root, 59) ; and services as a counselor at law (Bell V. M'Lean, 3 Verm. Rep. 185). But work and labor must, in general, be executed before it is charged. Per Henderson, C. J., in HoweU v. Barden, 3 Dev. 449. Entries are proof of the use of anything hired and returned, e. g.., oxen, horses, &c. (Swift's Ev. 83 ; Easly v. Eakin, Cooke's Rep. 38) ; interest on book debt, where the promise is impHed or express (Phenix v. Prindle, Kirby, 207); and freight, where the amount is left to be implied or is agreed upon (Boardman v. Keeler, 2 Verm. Rep. 65). Every one sees, in the above hst of items, that direct, frequent and simple kind of dealing which is, of course, committed to the book account, and which may be presumed to rest in the exclusive knowledge of the parties. On the other hand, the authorities exhibit several instances not coming within that reason and which they, therefore, put to common-law proof; Entries in the following cases have been held inadmissible, as not presenting the usual subjects of book charge : The claim by one town against another, for keeping'a pauper^ on the mere ground that he is chargeable to the defendant town, there being no actual privity of contract (Swift's Ev. 83) ; and a special unexecuted con- tract, as an agreement to receive goods, and a refusal (Swift's Ev. 84). The charge should not be of a tort, nor any consequence of it (Swift's Syst. 168 ; Swing v. Sparks, 2 Halst. 59) ; but only of such things whereof the prices can be ascertained in. market (Swing v. Sparks, 2 Halst. 59); nor of a bond, note, receipt, nor special agreement (per Eord, J., in Wilson v. Wilson, 1 Halst' 94). In an action for clocks sold, the defendant's entry, that he received them on commission' was rejected, the court saying that an agency could not be so established. Baisch v. Hoff, 1 Teates, 198. Nor can a special contract be contradicted by a book entry. Pritohard v. M'Owen 1 Nott & M'Oord, 131, note a. Nor can it be shown, by the defendant's entry, how much time the plaintiff's slave lost while engaged at work for the defendant. M'Kewn ads. Barksdale, 2 Nott & M'Oord, 11. Nor where the plaintiff goes on his original entries wUl the defendant be allowed to give in evidence his own counter entries of the same work. Summers v. M'Kim, 12 Serg. k Rawle, 405. Under no circumstances can a charge that goods were dehvered on bailment, e. g., on commission, be supported by the party's book. Kerr v. Love, 1 Wash. Rep. SEC. VIII.] Entries in Account Boohs. 379 172. Nor is a special agreement to pay interest chargeable (Phenix t. Prindle, Kirby, 207, 209; quere, vid. 2 Aik. 83, 389); nor a mistake in a former settlement. Punderson v. Shawi. Kirby, 150 ; Rogers v. Moor, 2 Root, 58. But see Whiting v. Oorwin, 5 Term. Rep. 451, 457.. Work and labor must, in general, be executed before it can be charged. The party cannot, mak^ valid entries of a special contract to employ him, and in this form claim damages for non-per- formance (per Henderson, C. J., in Howell v. Barden, 3 Dev. 449) ; nor of a special collateral promise by k. to pay for goods delivered to B. (Poultney v. Ross, 1 Dall. 238) ; nor of a charge against an attorney for attending as a witness in behalf of his cUent, for the latter is primarily liable ; the attorney only in consequence of an express personal engagement (Sargeant v. Petti- bone, 1 Aik. 355) ; nor of a demand due from an indemnitor (Stocking v. Sage, 1 Contu Rep. 75) ; nor any collateral undertaking, as that "if A. employ you I will see you paid " (Skinner v. Conant, 2 Verm. Rep. 75) ; nor any mere claim for damages for any tortious, act or neglect, or *br any breach of contract (per Hutchinson, J., in Pry v. Slyfield, 3 Verm. Eep. 249) ; nor of money lent (Case v. Potter, 8 John. Rep. 211 ; Vosburgh v. Thayer, 12 John. Rep. 462 ; Du- coign V. Schreppel, 1 Teates, 347) ; nor money had and received on notes delivered, to be col- lected and applied, but which were collected and not applied (Farrand v. Gage, 3 Verm. Rep. 326); nor of a balance struck, as of ten dollars for a trespass (per Pord, J., in "Wilson v. WUson, 1 HaJst. 94) ; nor a settlement or balance struck on book account (Prest v. Mersereau, 4 Halst; 268 ; and see Worman v. Boyer, 14 Serg. & Eawle, 212 ; per Ford, J., in Wilsou v. "Wilson, 1 Halst. 94) ; nor of money paid to or for the person sought to be charged (Duooign v. Schreppel. 1 Teates, 347 ; Prince v. Smith, 4 Mass. Rep. 455; per Tilghman, C. J., in Juniata Bank v- Brown, 5 Serg. & Rawle, 231 ; Sargeant v. Pettibone, 1 Aik. 355 ; Sawyer v. Proctor, 2 Verm. Rep. 680 ; Jones v. Brick, 3 Halst. 369) ;. yet particular necessity has been received to create an exception, as where the disbursements related to a distant commercial transaction, and were charged by the remote agents and consignees against the owners of a vessel (Seagrove v. Red- man, 2 Teates, 254; S. C, 4 DaU. 153); nor of rent (Prince v. Smith, 4 Mass. Rep. 455);, nor use and occupation of a whar^ or any other real estate ("Wilmer v. Israel, 1 Browne, 257 ; Beach v. Mills, 5 Conn. Rep. 493 ; Swing v. Sparks, 2 Halat. 69 ; Case v. Berry, 3 Vejm. Rep. 332). 2. As we noticed on introducing these instances, even though the case be prima facie, a proper one for proof by entries, if it appear, either on the face of the charge, or in any other way (e. 3. by the party's oath in states where that is receivable), that there is, in fact, living or attainable proof of the item, independent of the entries, the latter are then inadmissible ; for it being appa- rent that the ordinary common-law proof exists, which is superior in degree, that must be pro- duced. It can then only be dispensed with, and the entries received, where it is shown to be in truth beyond the reach of the party. The common ease in New Tork'is where the party has 3 clerk (Vosburgh v. Thayer, 12 John. Eep. 462) ; though one case seems to hold that the entire entries may be received, though part were made by the clerk, and the rest by the party. M'Allister v. Eeab, 4 Wendell, 483. But quere as to such entries as appear to be made by the clerk ; for other eases have, with a laudable jealousy of such self-fabricated evidence, adhered closely to the rule that where the entry is made by the clerk, nothing shall excuse his absence except his death. Kenedy v. Fairman, 1 Hayw. 468 ; Whitefield v. Walk, 3 Hayw. 24. In the first of these cases, the clerk was absent in the West Indies, and in the other at South CarOi. Una ; yet held no excuse in either case. Some cases, however, allow the excuse that the clerk is permanently beyond the power of the court. Sterritt's Ex'r v. BuU, 1 Binn. 234. Upon the same principle, a schoolmaster's original entries are no proof; for he has usually many witnesses by whom to prove his services ; and he must avail himself of them. Pelzer v. Cranston, 2 M'Cord, 328. The analogy of these cases has been carried by authority into a variety of transac- tions ; and the courts very judiciously appear determined to act on the same pruiciple in regard to aU matters forming the subject of evidential account-books. True, in one case, a lime burner and vendor's book was received to prove large sales of lime delivered out bj- servants and agents, where the party was generally present, either at the kiln, when the loads were placed in wagons, or else saw the delivery ; and this, though he was absent on a very few occasions (Curren v. Crawford, 4 Serg. & Eawle, 3) ; and in another case, entries made by the party from a memo- randum of a servant were received (Ingraham v. Bockius, 9 Serg. & Eawle, 285) ; yet the subSB- q.uent cases of Smith v. Lane (12 Serg. & Eawle, 80, 82), and Kessler v. M'CQnachy (1 Eawle, 441), 380 Entries in Course of Business. [CH. VIII. both stated infra, manifest a strong tendency to greater atriotness, and a conformity with the other cases In the state of Pennsylvania and elsewhere. But see Kaughley v. Brewer, 16 Serg. &Rawle, 133, 134, stated also infra. In a former case in that state, charges for work done by a servant were disallowed as evidence, the court saying such evidence was allowed from necessity, and where the work has been done by a third person, the necessity does not exist. He can prove it. " Cessamieraiione, cessat ipsa lex." "Wright v. Sharp, 1 Browne, 344. So, charges for work done by servants ; for they are competent witnesses. "Wright v. Sharp, 1 Browne, 344. If the goods were delivered to a third person on account of the vendee, the books are not evi- dence (Kerr v. Love, 1 "Wash. Eep. 1'72) ; not even though they were the vendee's servants. Bastn;an v. Moulton, 3 N. H. Eep. 156. So, though the books of a printer be receivable, they, are no farther so than to prove the retainer to do the work ; for the files may be produced to show the quantum, and the price may be proved by others (Richards v. Howard, 2 Nott & M'Cord, 4Y4) ; nor are a tailor's books receivable to prove goods delivered to the defendant's ward by the order of the defendant. Here they are mere proof of the delivery. Books are, in general, not allowed to prove a direction or instruction to deliver to a person other than the de- fendant. Deas V. Darby, 1 Nott & M'Cord, 436. The charge on its face, purporting to be of goods delivered to another on the defendant's order, it was rejected as incompetent. Tenbroke V. Johnson, 1 Coxe's Eep. 288 ; Townley v. "Wooley, 1 Coxe's Rep. 3'!7. And where goods were delivered delivered on written orders, an account was excluded as evidence, tor that reason among others. The orders should be produced, or otherwise proved on accounting for their ab- sence. Smith V. Lane, 12 Serg. & Eawle, 80. "Where the goods are deUvered out by another or by others, the account kept by them, or by one on their information, cannot be received ; for the party has other proof by those who delivered the goods, and they must be produced, or their ab- sence accounted for. Smith v. Lane, 12 Serg & Eawle, 81. "Where the charge was for medicine and attendance on an aged menial servant of the defendant, the plaintiff's book was received as usual : but it was held that the defendant's agreement to pay must be proved by evidence aliimde. Coffin v. Cross, 3 Dane's Abr. 322. Tet, charges for goods sold and dehvered to, and services performed for one on account of an- other, have been sustained by the claimant's original entries in Connecticut, without showing the death or absence of the witnesses. But the question was not presented in the above points of view ; and some reliance seems to have been placed on the statute of that state as controlling the case. Bryan v. Jackson, 4 Conn. Eep. 288, 292 ; Swift's Ev. 84. 3. To be admissible at aU, the entries should be made at or near the time of the transaction. The law fixes no precise instant. They are not to be registers of a past trarisaotion ; but memo- randa of transactions as they occur. Per Duncan, J., in Curren v. Crawford, 4 Serg. & Eawle, 5 ; Cogswell V. Dolliver, 2 Mass. Rep. 21'? ; Eastman v. Moulton, 3 N. H. Rep. 156 ; Ewing v. Sparks, 2 Halst. 59 ; Kessler v. M'Conachy, 1 Rawle, 441. And where some were made at the time, and others some months after, without distinguishing which, or assigning a good reason, the whole were rejected as incompetent. Vance v. Peaiiss, 1 Teates, 321 ; S. C, 2 Dall. 21'?, by the title of Tance v. Fairis. The party saw his lime, in general, either loaded at the kihi or de- livered to the vendees, but not always, and trusted to his wagoners for some of his charges ; yet, his book of charges for the lime was allowed to go the jury. Curren v. Crawford, 4 Serg. & Eawle, 3. A butcher's servant, carrying out meat, uniformly marked in pencil the quantity de- livered, which his master copied into his book on his return. The book was held receivable. Ingraham v. Bockius, 9 Serg. & Eawle, 285. And see Curren v. Crawford, supra. But see Smith V. Lane, 12 Serg. & Rawle, 80 ; and Kessler v. M'Conachy, infra. So, where one of two butchers (partners) customarily marked the scores of meat with chalk on a cart, and the other, before the cart went out again, copied the scores into the book, it was held receivable, on the oath of both partners. Smith v. Sandford, 12 Pick. 139. It is no objection to the book though the entries be first made on a slate and then transcribed by the party, if done in the ordinary course of his making such entries (Faxon v. HoUis, 13 Mass. Eep. 42'!; Kessler v. M'Conachy, 1 Rawle, 441); though properly they should be transcribed daUy ; and where it was left in doubt whether a day or two after, they were rejected (Ogden v. Miller's Exr's, 1 Browne, 141); and they will, of course, be rejected, if it do not appear that the party made the entries on the slate— but it is left to be inferred that they were made by a servant, who could attest to them himself. Drummond v. Hyams, 1 Harp. 268. And see SEC. VIII.] Entries in Account Boohs. 381 Kessler v. M'Conaohy, infra, and Ingraham v. Bookius, supra. And where the journeyman made the entries, some of them on a slate, -whence they were copied by the master — some in a day or two, some in a week, some perhaps not short of two weeks, without distinguishing which was longer or shorter, the book was held altogether inadmissible. And much stress was laid on there being better evidence, the journeyman himself; they should at least have been both made and transcribed at or about the time the work was done ; and the party should distinguish the entries so made from those made more loosely, or the whole must be rejected. Kessler v. M'Conaohy, 1 Rawle, 441. A book is receivable as evidence though the work be charged while in progress, and before it be completed ; as where a tailor made his charges on the work being cut out and delivered to his journeymen, who worked in the same house with him. Such. mode of keeping books as is usual and known to all tradesmen cannot safely be declared bad by the court. In some trades the work is in hands for several days, and goes through more than one hand ; and the entry may be made during the period of its manufacture, or at a stated time when it has progressed a certain length. The court would not say a sfiopkeeper could charge goods not yet measured or weighed off; nor a tradesman work not yet begun; but they hesitated to say that a blacksmith who has prepared and weighed iron work, and then charges before he puts it on the wood, which might take him a week, or a chairmaker who makes and paints the chairs and charges them before sent to be gilt, shall not read his book. Kaughley v. Brewer, 16 Serg. & Eawle, 133, 134. 4. The entry must be in the book of the party, kept by him for the purpose of his daily accounts, generally, with all those persons who may have dealings with him ; and must be made in conformity to the prevalent manner of his keeping the book ; and in a regular course with other charges. If they stand insulated on the front leaf of the book, and not falling into a regular order with the other charges, they will be rejected. Lynch v. Hugo, 1 Bay, 33. So, if on a separate sheet, especially when it appears that the party in fact keeps an account-book. Prince V. Smith, 4 Mass. Bep. 455. So of a mutilated piece of paper, which appears to have been torn out of a book, in which the name of neither party appears, which contains no charges against the defendant, and which is unintelligible without explanation by the plaintiff. Hough v. Doyle, 4 Rawle, 291. "Where six charges, amounting to six hundred and fifty dollars, were on one of the last leaves of the book, separated from all the entries by intervening blank leaves, and dated during the same period . with thirteen other charges made in the body of the book, apparently regular, the six charges were held properly to be no part of the book, and inadmissible, the same as entries on a separate leaf. Per Kirkpatrick, C. J., in WUsoii v. "Wilson, 1 Halst. 94 ; Rozell, J., contra. Charges on several disconnected pieces of paper were rejected. Thompson v. McKelvey, 13 Serg. & Eawle, 126. After the defendant's demand accrued against the plaintiff, the latter caused a series of charges to be continuously written down in his regular book against the defend- ant, ranging through 1816, '17, '18, '19 and '20, without a single intervening charge. The book was held clearly inadmissible as evidence of such charges. Swing v. Sparks, 2 Halst. 59. But in Termont, an entry of a service as counselor at law on a separate slip of paper, filed according to the party's usual practice, was received. BeU v. M'Lean, 3 Verm. Eep. 185. 5. To make the book admissible for any purpose, it must contain the original entries of the party made by himself; and must be an account of his daUy transactions. Per Duncan, J., in Curren v. Crawford, 4 Serg. & Rawle, 5 ; Sterritt v. BuU, 1 Binn. 237 ; Prince v. Smith, 4 Mass. Rep. 455 ; Eastman v. Moulton, 3 N. H. Eep. 156 ; Swing v. Sparks, 2 Halst. 59. And one reason why they must not appear to be made by another is, because he is then prima facie a witness, and must be produced. Eastman v. Moulton, 3 N. Hamp. Rep. 156. But regard is had to the party's degree of education, and semh., if he cannot write so as to make entries, they may be made by another. Prince v. Smith, 4 Mass. Eep. 455; Eastman v. Moulton, 3 N". Hamp. R. 156. If it clearly appear that the entries are not original, either upon inspection or from extrinsic testimony, they are to be withheld as incompetent evidence. Cogswell v. DoUiver, 2 Mass. Rep. 222 ; Curren v. Crawford, 4 Serg. & Rawle, 3 ; Prince v. Smith, 4 Mass. Eep. 455 ; Swing v. Sparks, 2 Halst. 59. 6. Being original entries, the question then arises upon the form in which they are to be kept. Among the European continental nations, which have adopted the civil law as the basis of their ovra, this proof by book account also prevails. If we may be allowed to judge of its form from the French Code, and the more approved French writers on jurisprudence, who confine it to mer- 882 . Entries in Course of Business. [CH. Vlil. chants of good standing, we shall have reason to helieYe that the avenues to abuse are partially- closed by the cautious manner in -which accounts must be arranged and checked, in order to give them the character of competent proof. Code do Com. Liv. 1, tit. 2 ; des Livres de Commerce, art. 12 ; Poth. des Obi. nos. 119, 110. Tet the book itself is not such evidence as -will -warrant a sentence in favor of the party producing it. 1 Dom., p. 444, b. 3, tit. 6, § 3, art. 9. It is but semi-proof, which may be rendered perfect by the suppletory oath of the party. Poth. ut supra. But in many of the United States, where this kind of evidence is left to be framed by citizens of every occupation and every variety of language and character, and that, too, in their o-wn way, any considerable degree of safety derived from the forms of bookkeeping is the last thing to be expected. Tet books are rarely rejected for a defect of form, even in those states where they are not brought down to semi-proofs, and where, in the hands of inexperienced tribunals, it is ■almost of course that, being received, they should reach the effect of prima facie evidence. Frail as such proofs must be, however, perhaps the law can hardly be censured for thinking they would be but little fortified by the suppletory oath of an interested and excited party. So long as Such books are admissible, whatever guards the law may throw around them by way of test- ing their credibility, must be little more than naked theory, banded against the devices of inte- tested trickery. Nothing, perhaps, short of the bann of incompetency^ would afford an adequate security against partial simulation, and occasionally, in a long run of heedless security on the side of the debtor, the most ruinous and oppressive interpolations, as the satirist has it, in " Those unpaid bills, which time has taught to grow, Paster than poplars on the banks of Po." But, to proceed with the judicial treatment of this evidence. Being the original or first entries of the party in his own hand, these books are the least suspicious when kept in the form of daUy entries in a smgle journal or day-book, of the debts and credits of the different persons -with whom the party deals, in the order of dates, -without blanks, chasms or marginal references. In France, if any of these requisites are wanting, the book is not competent evidence. Code de Com. tit. 2 ; De Livres de Commerce, art. 8, 10. This is the most perfect form, and one which has never been questioned in the American courts, where book accounts are received in any way. But generally they do not require anything like these formalities, in order to render books com- petent. We have seen ante, in our quotation from Judge Swift's Treatise of Evidence (pp. 81, 82), what is necessary to insure credibility, according to the judicial experience of Connecticut, whioh| if not greater, has probably been recorded with more care than that of any other state. And, considering the suspicious nature of this evidence, in itself, there can be no doubt that the party should be put to common-law proof, should the entries come short of the character which Swift has demanded. At least, the entries should be, in all such cases, strongly and clearly confirmed by common-law e-rideuoe, even where the oath of the party is required. Still, however, they are competent, that is to say, they stand something above zero, though they may come short of the standard of credibility. One striking instance is in receiving entries kept ledger-wise ; that is to say, where the account of each man dealing with the party is kept by itself, in a separate department of the book ; thus affording every facility for undetected interpolation, either ante or post litem motaim. Tet such hooks are receivable. Swift's Ev. 81, 82 ; Rodman v. Hoop's Ex'rs, 1 DaU. 85; Faxon v. Hollis, 13 Mass. Rep. 42'? ; per Kirkpatrick, C. J., in Wilson v. Wilson, 1 Halst. 94 ; Cogswell v. DoUiver, 2 Mass. Rep. 21'7 ; Griff. Law Reg. U. S. ui supra, of New Jersey, ante. This was denied of New Jersey, In Leveringe v. Dayton (0. C. U. S. N. J. Sittings, Cor. Washington, J., and Kossel, Dist. Judge, 4 Wash. C. C. Rep. 608) ; but the weight of authority seems to be the other way, even in New Jersey ; and decisively so when connected with the de- cisions of the neighboring states. Books thus kept were received, though the entries in question were intermixed with various charges, notes, receipts and memoranda relating to the party's dealings with others, in whatever blank spaces he happened to find, without any regard to the order of dates or pages. CogsweU v. DoUiver, 2 Mass. 211. But whether in a day-book or ledger form, the entries must appear to have been made daily, or thoy cannot be admitted. Eastman v. Moulton, 3 N. H. Rep. 156 ; Smith v. Lane, 12 Serg. & Rawle, 80. It it appear, at any stage or in any way, that charges arising at different dates were in fact made at the same time, the book is not evidence. Eastman v. Moulton, 3 N. H. Rep. 156. SEC. VIII.J Entries in Account Books. 38^ It must also be apparent that the entries were intended as book charges, in acooimt with the identical party against whom they are offered in evidence. Ehoades v. Gaul, 4 Kawle, 404 ; Eogers v. Old, 5 Serg. & Rawle, 404 ; Smith v. Lane, 12 Id. 80. If they are kept merely as a memorandum between the party and another, they are inadmissible. Smith v. Lane, 12 Serg. & Rawle, 80. Arbitrary marks fixed to the entries, not intended to charge the vendee, but merely to inform the porter and prevent a delivery of similar articles twice, cannot be used to aid in the evidence of delivery, especially if not always made by the same person making the residue of the entry, nor by the party nor his clerk. Ehoades v. Gaul, 4 Eawle, 404. So a book kept by a forgemaa to settle by with his customers, though it name the vendees, and sometimes the price, is not evidence against the latter. Rogers v. Old, 5 Serg. & Eawle, 404. It ia not an insurmountable objection to the competency of the book, that there be erasures and corrections. Its character is not thus destroyed as a book of original entries. The alteration is open to explanation ; and the objection goes to the credit only. Sargeant v. Pettibone, 1 Aik. 355. But it is a serious objection against its credit ; and if gross, suspicious, or unexplained, it win destroy the competency of the book. Swift's Ev. 81, 82 ; Eastman v. Moulton, 3 N. H. Eep. 156. And so of any other fraudulent appearances. Eastman v. Moulton, 8 N. H. Eep. 156. Not only the day-book, but if it be posted, the ledger must be. produced, that it may be seen what credits there are. This was held where post-marks appeared on the day-book. Prince v. Sweet, 2 Mass. Eep. 569 ; Eastman v. Moulton, 3 N. H. Eep. 156. And it is the same in what- ever way the fact of posting may be made to appear. Eastman v. Moulton, 3 N. H. Eep. 156. The book being competent as a whole, almost any series of figures, abbreviations and words, which can be explained into a signification, wiU do for particular charges. The following is a specimen of oharges for hme, allowed in Curren v. Crawford, 4 Serg. & Rawle, 3 : " II 15 B. Marpol. 60 Themerty Coren." And regard, as we have seen, is always to be had to the party's degree of education, the nature of his employment, and the manner of his charges against others. Prince v. Smith, 4 Mass. Eep. 455. But the charges must be specific; that is to say, they must denote the particular work or service charged, as it arises daily, and the quantity, number, weight, or other distinct designation of the materials or articles sold or furnished, and attach the price or value to each item. Hughes V. Hampton, 2 Const. Rep. 145 ; Lance v. M'Kenzie, 2 BaU. Eep. 449 ; Lynch's Adm'r ads. Petrie, 1 Nott & M'Cord, 130, cited 4 M'Cord, '71 ; Hagaman's Case, 1 South. 3 TO. Accordingly, a bricklayer's charge of " 190 days' work," was rejected ; it should be placed in the book daily, being entered at the time as it occurs (Lynch's Adm'r ads. Petrie, 1 Nott & M'Cord, 130, and see S. C, 4 M'Cord, 77, cited) ; and a physician's charges " for medicine and attendance ;" and another thus : " 13 dollars for medicine and attendance on one of the general's daughters in curing the hooping cough" (the charges were against Gen. "Wade Hampton) ; were also rejected as too inde- finite (Hughes V. Hampton, 2 Const. Rep. 745); and a like general charge was rejected in Lance V. M'Kenzie, 2 BaU. 449. But this is a matter which must reside very much in the discretion of the judge, to be exercised according to the nature of the subject, and its susceptibility of being precisely charged. Where, within this rule, to be apphed on the examination of witnesses and otherwise, the charge is sufBciently specific, it will be received ; and such was the course in judg- ing of a physician's bill and admitting it, in Schmidt v. Quiu (1 Eep. Const. Ct. 418); and reject- ing it in Lance v. M'Kenzie, supra. Tne rules of the medical society in South Carolina fix spe- cific rates, as far as practicable, to the services of the medical profession ; and physicians gene- rally adhere to them in their charges. Per Johnson, J., 2 Bail. 450. And see the evidence de- tailed in the case. A receipt in the account-book, purporting to be signed by the vendee, is not receivable in proof as an original entry. Sterritt's Ex'rs v. Bull, 1 Binn. 234. If the prices be not carried out, the books are imperfect ; and, if admissible at aU, prove nothing as to the price and the jury cannot guess at that; so the charge goes virtually for nothing. Hagaman's Case, 1 South. 370. 7. "We have already seen that, so far from being primary evidence, superior in degree to the mere oral testimony of disinterested witnesses, books are treated by the cases, according to their .true character, as evidence secondary to common-law proof. It was in one case -hastily holden that, the party's book must be produced like any other written evidence, as standing higher upon ■ the scale, or that its absence must be accounted for, before proof by witnesses should be received. 884: Entries in Course of Business. [CH. VIII. Kelly T. Holdship. 1 Browne, 36. But this, teside being contrary to various other cases which we have cited, supra, ia contrary to Wright v. Sharp, in the same book. p. 344. The book is, no doubt, essential where the suppletory oath is resorted to ; otherwise, where witnesses are called ; a distinction which, in the haste of a trial, was overlooked in Kelly v. Holdship. Where the party is sworn, the book must be produced, for there it is the principal evidence (Nicholson V. Withers, 2 M'Cord, 428); and if it be lost, the party loses his oath, as we saw supra, by Prince V. Smith. 4 Mass. Eep. 455. In such a case, the contents of the book may be proved ; but this must be by common-law evidence, though the party made the entry himself. Id. If proved by another who made the entries, the book must be in court, or its absence accounted for; and so where the entries of a third person, deceased, are the subject of proof In such case, the con- tents of the paper itself being in question, they must be proved like those of any other paper, by itself, if it can be had. Nor will the excuse that the party resides at a great and inconvenient dis- tance, be received. Smith v. Peay, 2 Bail. 394. The rule as to showing the contents of docu- ments by themselves only, has been applied to account-books by several cases. Keller v. Ord, 1 DaU. 310 ; Herring v. Levy, 4 Mart. Lou. Rep. (N. S.) 383 ; Smith v. Peay, 2 Bail 394; Nichol- son V. Withers, 2 M'Gord, 428. But extracts from the books of foreign merchants, verified by the oaths of their clerks, were received, the court saying it would be unreasonable to require the books themselves. Bell v. Keely, 2 Teates, 255. And see Lewis's Bx'r v. Bacon's Legatee, 3 Hen. & Munf. 89. Qms.' See Elms v. Gheevis, 2 M'Oord, 349, also stated supra. It is perfectly well settled, by a series of adjudged cases, that a party may, in his discretion! waive his books altogether, and rely upon his common-law proof, by witnesses or otherwise. Levenworth v. Phelps, Kirby, VI ; per Washington, J., in Cambioso"'s Ex'rs v. MafFett's Assignees, 2 Wash. C. 0. Eep. 101 ; Nicholson v. Withers, 2 M'Cord, 428 ; Bead v. Barlow, lAik. 145, 147, 148, per Skinner, Ch. J.; Palmer v. Green, 6 Conn. Rep. 14, 17 ; Bernham's Adm'r v. Adams, 5 Term. Rep. 313 ; Whitmg v, Corwin, 5 Term. Rep. 451. The party may take his account and proof from his adversary's book. But the non-production of his own book would many times, and especially if called for by his adversary, be a heavy circumstance against him. Swift's Ev. 82 ; Palmer v. Green, 6 Conn. Eep. 14, 17. A very ordinary expedient of the common law is, to prove the entries of a deceased clerk as mentioned ante, note 107. 8. Books are evidence, both of the item charged and the price or value carried out, subject to inquiry on other evidence. Ducoign v. Schreppel, 1 Teates, 347. Properly attested, they are prima facie evidence of the deUvery of articles of merchandise (Poster v. Sinkler, 1 Bay, 45, per Pendleton, J.) ; indeed, both of sale and delivery ; and in case of services, they are evidence of retainer to do the service, the doing of it, and the delivery of materials in the course of the ser- vice. M'Bride v. Watts, 1 M'Cord, 384. Nor need entries of charges for spirituous liquors sold in small quantities be followed with proof of a license to sell. Herlock's Adm'rs v. Riser, 1 M'Cord, 481. The book is to be taken together, with its charges and credits, especially where both are of the same date. Harrington v. Hall, 2 Aik. 175. 9. Serrib. The party's books would be admissible on a collateral point in a cause, as if in an ac- tion to recover money from the defendant, it should be material to determine the state of his ac- counts with another. Mifflin v. Bingham, 1 DaU. 272, 276. But it was afterwards held that, the third person being himself a witness and his oath better evidence than his books, he should be produced. The case would not then come within the necessity on which this kind of proof is founded. Juniata Bank of Pennsylvania v. Brown, 5 Serg. & Rawle, 226. 10. We noticed, mpra, the tests of credibihty arising from the face of the account, and from various other collateral circumstances, while speaking of the law of Connecticut. Their good sense will commend them to all persons engaged in the judicial investigation of accounts, which are always, though the books be received, open to objections as to their credit, from unfair ap- pearances or other evidence. See per Sewall, J., in Prince v. Smith, 4 Mass. Rep. 455. (The subject may be further illustrated by some of the more recent decisions : Jones v. Jones, 1 Foster (N. H.) 219 ; entries made upon loose sheets of paper are not to be presumed to have been made as daily minutes of the parties' business transactions, and are not admissible in evi- dence. To render a book evidence, it must appear to have been regularly kept in such a man- ner as to afford a strong presumption of its accuracy ; in other words, the charges in the hand- writing of the party must appear in such a state that they may be presumed to have been his daily minutes of his transactions and business. Richardson v. Emery, 3 Id. 220. But if the book ac- SEC. VIII.] Entries in Account- Boohs. 385 count appears to have been regularly kept, and the charges were made at or about the time the work was done, or materials found, it wUl not be rejected merely, because it is proved by the party's suppletory oath that the entries were not invariably made on the same day the work was done, or articles furnished. Morris v. Briggs, 3 Gushing, 342. Neither the manner nor the form in which the book is kept is material, so that it appear to have been fairly and honestly kept ; thus, an account for work, entered on one leaf of a book with no intervening charges, is admis- sible supported by the suppletory oath of the party, though the entry be in pencil. Gibson v. Bailey, 13 Met. 537. Clough V. Little, 3 Eioh. 353 ; when the party offering his book in evidence is supporting it by his own oath, he may be cross-examined like any other witness ; and if on his examination he show that the entries were made by himself from the statement of his clerk in regard to the sale, the evidence is insufficient. On the other hand, if the party offering show that the book, or even separate sheets of paper, contain the original entries of the account made by the party, and the usual additional facts, the evidence is admissible ; and the credibility both of the book and of the party is to be weighed by the jury. Taylor v. Tucker, 1 Kelly (Geo.), 231. Where goods are sold on an order, or where they are entered in a pass-book, and delivered to a third person, the order or the pass-book must be produced ; in other words, the books of the party are not evidence of the agency of the person to whom the delivery was made. Thompson V. Porter, 5 Strobh. Eq. 58. "When the defendant calls for the plaintiff's books and introduces them in evidence for one purpose, as to prove the goods charged to another person, the plaintiff may read from the books for another purpose. Lewin v. Dille et al., 17 Mis. (2 Bennett), 64. Loose memorandums made by a party's clerk, not in the course of his employment, are not evi- dence afcainst his principal. Lookey v. Schreiber, Id. 146. Books of original entries are not evidence of the casual sale of an article (such as a horse) not in the course of the parties' business, and of which it is usual to take other proof or evidence of sale. Shoemaker v. Kellogg, 11 Penn. State R. 310. Nor are they evidence of a collateral fact. Little V. "Wyatt, 14 N. Hamp. 23. In Maine, where a party relies upon his book of original entries supported by his oath, only, he must swear that he made them at or about the time they purport to have been made ; that they are his original entries of the transaction ; and that the articles and services were respect- ively delivered and performed as charged. Durnel v. Pottle, 31 Maine, 167. An attorney may prove his entries for services rendered in same way. Codman v. Caldwell, Id. 560. In the case of a sale, if the party shows a delivery to a third person, the book is to be excluded unless there be other evidence showing the latter's authority to receive. Soper v. Veazie, 32 Id. 122. The delivery must be proved. Godfrey v. Codman, supra. So, under the book-debt law of North Carohna, the party must testify to the delivery of the articles sold. Adkinson v. Simmons, 11 Ired. 416. The book offered must be one of original entries. Toomer v. Gadson, 4 Strobh. 193. It is no objection to a book of original entries that part of them are written in pencil ; so held where the party offering them was a vendor of coal, at his coal bank, and the book offered in evi- dence was the original entries of the coal sold and delivered. Hill v. Scott, 12 Penn. State R. 168. Such books are commonly used as evidence of a sale and delivery of goods, but may be verified by a witness and used as memoranda to designate them. Pitler v. Eyre, 14 Id. 392. And they may be used to show the consideration given by the indorsee of a note, the note and other items being credited in an account between the parties, and the whole being verified by a clerk and shown to be a part of the res geske. Rosenberger v. Bitting, 15 Id. 278. So, in a remote trans- action, the books of a broker may be used to determine in what character and for whom he acted in the sale of real estate. Sergeant v. Ingersoll, Id. 343. So a trustee's books may be used to show the character in which he held certain real estate ; as where he held the premises by a conveyance in trust, and conveyed them to the daughter of the grantor in fraud of creditors. HoUingshead v. Allen, 17 Id. 275. Though the book offered in evidence contain entries which are not original, that does not form any objection to its being received as to those entries which are original and properly entered. "Wollenweber v. Ketterlinus, 17 Id. 389. Books of account are not evidence of money lent. Henshaw v. Davis, 5 Cush. 145. Nor of money paid to a third person. Paunce v. Gray, 21 Pick. 243 ; Inslee v. Prall, 3 Zabr. N. J. Vol. I. 25 Entry hy Person Deceased. [CH. Vlll. Entry by person deceased. It will appear that in the cases before mentioned, relative to declara- tions against interest, and in the cases -which have been considered in this section, that the declarations were those of persons deceased; the neces- sity of proving the declarant's death will be considered more particularly in that part of the work which treats ,of the subject of primary and secondary evidence. It is also requisite, where the declarations are in the nature of written entries, that they should be produced from the proper custody. This circumstance, which is essential for their authenti- 457. Nor of three months' service, entered as one item.. Henshaw v. Davis, «4pra. Nor of lie making of stairs, the work being done under a special contract. Earle v. Sa^wyer, 6 Cush, 142. Nor of expenses incurred in search of a slave. Eedden v. Spruance, 4 Harring. (Del.) 21f . But a book of account is evidence of meals furnished to, the defendant and his servants from day to day. Tremain v. Edwards, f Cush. 414., The account-book of the payee of a note is not evidence to prove that the note was given for necessaries ; but is competent to show the delivery of the articles charged. Earle v. Reed, 10 Met. 387. In Arkansas, the original entries of a merchant in books kept by himself and a clerk, now ab- sent from the state, are not evidence in his favor, though he offer to verify its accuracy by his oath ; entries by a clerk may be proved in this manner on showing that he is dead, but not otherwise. Burr v. Byers as Ad., 5 Bng. 398. So in Alabama, there being no statute admitting books in proof of an account, the entries of a tradesman by himself, stating the delivery of goods, are not evidence in his favor. Moore v. Andrews, 5 Porter E. 107 ; Scott v. Coxe's Adm'r, 20 Ala. (N. S.) 294. In Florida^ the books of a party having a clerk cannot be used as evidence of a merchant's account by proving that they were correctly kept, and that part of the articles were deUvered. Higgs v. Shehee, 4 Florida, 382. In Kentucky, books of account are, under certain circumstances, admitted in evidence ; but are not admissible to prove payment of a note. 12 B: Mon. 506. In Georgia, books of original entry kept by the party himself, are admissible in evidence, if they appear on inspection to have been fairly kept, and it be shown by the party's customers that he keeps correct books ; and though there be interlineations in the books made in a different ink, the circumstance may be explained, and though unexplained, should go rather to the credit than the exclusion of them. Bower v. Smith, 8 Geo. 74. In Ohio, a party is entitled to sustain his book account by his own oath ; and if he omits to do so, his book cannot be received in evi- dence (Kugler V. Wiseman, 20 Ohio, 361) ; but if the party be incapable of testifying, having become insane, his guardian may verify tlie books by his own oath. Holbrook v. Gay, 6 Cush. 615. In New Tork, books of account are received witli great caution ; they are allowed in evidence upon preliminary proof that the boolcs offered contain original entries, made by the party him- self; that they are fairly kept ; that the party had no clerk, and had dealings with the person charged. Larue v. Rowland, 7 Barb. 107. The fact that plaintiff keeps honest books may be sufficiently proved by one witness (Beattie v. Qua, 15 Barb. 132) ; and the fact of regular deal- ings between the parties may and must be establislied like any other fact — one transaction is not enough. Corning v. Ashley,. 4 Denio, 354. The preliminary proof being given, the books are ad- missible from the necessity of the ease, to prove an account for goods sold, or services rendered; they are not evidence of cash lent. Lowe v. Payne, 4 Comst. 247. But since the party is by a late statute a competent witness for himself, and his books have been heretofore allowed in evi- dence on the ground of necessity, it is quite clear that he must now support his books by his own testimony.) SEC. vill.j Entries, as Admissions. 387 cation is particularly considered in that' part of the wOrk which treats of written evidence.(l) (1) Note 109. — These entries in books by the party against himself belong to the class of admis- sions fPringle v. M'Clenachan, 1 Dall. 486), which we shall consider, post, when we speak of entries in books, &c., made by the party against himself, and how far his whole entries shall be taken together. See, also, several cases, post, as to what shall be considered the party's books by reason of his being concerned in them as a member of the club or partnership which keeps them, or having access to them, &o. ; and as to the effect of entries in these and the like books/ which are made there for or against him. The instance of entries by a bankrupt being evidence,, put by our author in the text, wUl occur to the reader as an exception to the rule that a party's declarations shall not be received as evidence in favor of one claiming under him. The bankrupt not being a witness, his former entry, made at the time against himself, but which, by a change of circumstances, turns out now to be favorable, by sustaining a suit which may be beneficial to him, is, notwithstanding, received. The reader will see a similar turn recently given to entries and balances struck, by a father in favor of his son, to prove that the former was indebted to the latter. These entries were against the interest ot the father at the time. Now a bill is filed by his creditors, accusing both father and son of combining to create fictitious debts from the former to the latter, in order to withdraw funds due to creditors. The books kept in common between them, ante litem motam, were received in their favor to show that the debts were bona fide. Dwight V. Brown, 9 Conn. Rep. 83, 90, 91, ei seq. Having now gone through with those matters which seemed to connect themselves with our author's distribution of hearsay evidence, we shall conclude this head by a brief notice of sotoe particulars, appearing to form exceptions additional to those which he has mentioned. 1. It has recently been, held that common reputation is the best evidence of the state of a man's property, when the question arises collaterally. On an indictment for passing counterfeit bUls, with a guilty knowledge of their character, the scienter finally becoming the only question, the prisoner's counsel proposed to repel that fact, which is so often entirely inferential from cir- cumstances, by showing the competent state of the prisoner's fortune, as an argument for the improbability that a man, so situated, would resort to the practices imputed by the Indictment. The prisoner had recently removed from North Carolina to Georgia ; and the counsel proposed to inquire of the sheriff " whether it was not generally understood and believed, by the neighbors and acquaintances of the prisoner, that he was a moneyed man, and that he carried considerable money with him on his removal to Georgia." This being overruled, on objection, and the prisoner being convicted, error was brought, and the judgment reversed for that reason alone. Henderson, J., who delivered the opinion of the court, said the facts offered to be shown "tended to throw light upon the subject the jufy were then trying; viz : the defendant's knowledge that the notes were bad. And this seemed to be admitted from the manner in which the cas^ is stated. The objection seems to be to the mode of proof, to wit, common reputation. I think it the best, and almost the only, proof by which such facts can be established. They exist in repu- tation ; for, although proof may be had that a person had much property in his possession, yet, when the question arises collaterally, recourse must be had to common reputation as to his being the owner, and not to the title deeds, and especially whether he is a moneyed man. Such a. character consists of so many distinct facts, as how much had he — was it his — would not his necessities compel him to use it, and not keep it— could he soon replace it — what were his habits", that of keeping and dealiiig in money or realizing it — that I think it almost impossible otherwise to prove it. Besides, it is of such a character that it is almost impossible for it to become reputa- tion unless the fact be so. There is, therefore, very little danger of imposition in receiving it, and the prisoner certainly had a right to the benefit of it before the jury: For, upon a question of scienter, there is more probability that a vagabond, found in possession of one thousand doUara in bad money, knew it td'be bad, than if such' a sum is found in the possession of a moneyed man. In the first case, we cannot well account for the vagabond's having so large a sum, otherwise than by its being bad, or of his knowledge 'of it, unless he shows how he got it ; whereas, in the 388 Entries^ Hearsay Evidence. [CH. viil.- other case, the reverse may happen. And if it weighed ever so little, the prisoner vras entitled to its weight hefore the jury.'' State v. Cochran, 2 Dev. 63. 2. It has been suggested by a learned writer, that, where a person comes forward and confesses the crime of which another is accused, and surrenders himself to justice, such confession would be admissible evidence in favor of the accused. 3 M'Cord's Eep. 232, note. But quere. The con- fession merely of a third person, that he was the guilty man, has been held no evidence for the accused, any more than other hearsay. Commonwealth v. Chubbock, 1 Mass. Rep. 144. And if an actual surrender should make the declaration admissible, it would at once throw open the door for fraudulent testimony, even in exculpation of the most atrocious criminals. The self- accuser is yet to be tried ; and he may act under the full consciousness of having such clear proofs of his own innocence, an alibi, or some other evidence, that he would be risking but little by doing the whole as an act of solemn trickery in behalf of his friend. The surrender would not estop him. Even should the people prosecute, convict and execute him as the sole malefactor, the verdict would not conclude them, nor by any evidence whatever against the first accusation. It would be res inter alios acta. i. In Graham v. The Pennsylvania Insurance Company (2 Wash. C. C. Eep. 113, 124), which was an action on a marine policy of insurance upon a cargo, the invoice was offered in evidence by the plaintiff, but objected to. Washington, J., said that, "accordmg to the general rules of law in other oases, it would, by itself; be inadmissible. But in commercial cases, it is uniformly admitted, if it carries with it the proof of its fairness. It is not known to have ever before been questioned. It is prima facie evidence of value, and no more.'' 5. At common law, the certificate of an officer having the legal custody of papers,, that he had searched, and failed to find any paper pertaining to his files, is mere hearsay, and no evidence of its loss or absence. Bowlin v. PoUock, 1 Monroe, 26, 43, 44. But by the usage in Pennsylvania, the certificate of a prothonotary, that a writ, declaration or statement cannot be found in his office, is admissible to prove the loss. Ruggles v. Alexander, 1 Eawle, 232. So of an officer of the land office, that a warrant or return of survey cannot be found ; or of a recorder of a county, that a deed is not recorded. Per Huston, J., Id. 236. And in New York, " wherever any officer, to whom the legal custody of any document or paper shall belong, shall certify, under his official seal, that he has made diligent examination in his office for such paper, and that it cannot be found, such certificate shall be presumptive evidence of the facts so certified, in all causes, mat- ters and proceedings, in the same manner and with the like effect, as if such officer had per- sonally testified to the same in the court, or before the officer before whom such cause, matter or proceeding may be pending." 2 E. S. 552, § 12. 6. General reputation has been, in two instances, received, and expressly recognized by the Supreme Court of New York, as auxiliary evidence that the defendants were partners, in order to charge them all jointly in a suit upon a contract made by one. Whitney v. Sterling, 14 John. Rep. 215; M'Pherson v. Rathbone, 11 Wend. 96. No objection to the evidence was taken in the first case ; and in the last it is quite questionable whether any exception was taken which would reach the point. It does not appear to have been made on argument ; and there was enough in the case without it ; for written articles were proved. In the first case the court doubted whether reputation alone would implicate the defendants. In the last, the learned chief justice said: "It was undoubtedly competent to have proved the partnerahip of all these defend- ants by general reputation." Upon such autliority, this must be taken as the settled law of New York. That it constitutes one of the most strildng exceptions to the rule denying hearsay as evidence, is, however, equally obvious. No authority is cited in either case going to maintain the exception. And wo believe that British authority has gone no farther than to look into the act of the party, and declare that if his conduct be such as to lead the public to a belief of his being a partner, he, thus drawing credit to the firm, when he comes to be sued by a creditor whom he may have led to become such, shall not be heard to gainsay his own virtual admissions. The question turns upon his assent, which must be shown, not by general repute, but by wit- nesses who know the fact, or by circumstantial evidence. This is the farthest that the British law has gone. Eoscoe's Ev. 212. Nor are we aware that any American authority beside New York has ever recognized mere hearsay as adequate proof of a partnership ; though Tilghman, C. J., said, in one case, it was corroborative evidence. Allen v. Rostain, 11 Serg. & Rawlo, 313. The point, however, did not here arise upon the bill of exceptions ; and we beUevo that to this SEC. IX.] Evidence on Former Trial. '389 SECTION" IX. Exception to the General Rule as to Hearsay, where Witnesses, since Deceased, have given Evidence on a former Trial. It has been held, that the testimony of a deceased witness, who has been examined upon oath on the trial of a former action, between the same parties, and where the point in issue was the same as in the second action, is admissible on the trial of the second action.(l) This kind of day nothing to sustain this evidence can be found which will amount to an express adjudication, going even thus far. "We are aware of Bernard v. Torrance (5 GiU & John. 383, 405), but under- stand that the evidence was received merely upon the point of notice to the plaintiff; not as proving or disproving the fact of partnership. Yet the evidence is constantly received at the circuits in New York ; and where would it not be under such imposing dicta ? Looking to this matter a priori, we find a contract of the nicest frame, which, when carefully analyzed, has puzzled the closest inquiries, both of the common and civil law, in fixing its character, referred for proof of its details and its legal effect, to the loosest of all testimony: "surmises, jealousies, conjectures," excited and confirmed by interested creditors. There is scarcely a question upon which common reputation is more liable to be misled by appearances, or abused by sinister mis- representation. V. Another exception to the rule that hearsay is not evidence, has been adopted upon sum- mary inquiries into the validity of elections to the legislature, on complaint that votes were ob- tained by bribery. The declarations of voters may be received as evidence of the bribery. This is, however, ordy to annul votes, but not to sustain a charge of bribery against the candidate with the view to disqualify, or affect him, otherwise than by vacating his election. See the cases of Milborne Port, 1 Doug. Election Cases, 61 ; of Ivelchester, 3 Id. 76; Petersfield, Id. 6 ; Wor- cljester. Id. 129 ; and Shaftesbury, Id. 150. In this last case, money to the amount of several thousand pounds had been given among the voters, in sums of twenty guineas a man. The persons who were intrusted with the disburse- ment of this money, and who were chiefly the magistrates of the town, fell upon a very singular and absurd contrivance, in hopes of being able to conceal the channel through which it was con- veyed to the electors. A person concealed under a ludicrous sad fantastical disguise, and called by the name of Punch, was placed in a small apartment, and through a key-hole in the door, de- livered out to the voters parcels containing twenty guineas ; upon which they were conducted to another apartment in the same house, where they found a person called Punch's secretary, and signed notes for the value ; but which were made payable to an imaginary character, to whom they had given the name of Glenbucket. Two of the witnesses, called by the counsel for the petitioner, swore that they had seen Punch through the hole in the door, and that they knew him to be one Matthews, an alderman of Shaftesbury ; and, as the oounsel for the petitioner had endeavored to prove, an agent for the sitting members. On the part of the petitioner, witnesses were called to prove declarations of voters, who, at the poll, had taken the bribery oath, that they had received Punch's money. This was objected to by the counsel on the other side ; but the evidence was admitted. See 3 M'Cord, 233 ; note of the learned reporter there, to whom the editor is indebted for the above remarks and references. (1) R. V. Carpenter, 2 Show. 4Y ; Buckworth's Case, Sir T. Eaym. 170; Tin. Ab. tit. Evi- dence, T, b. 88, pi. 4; Coker v. Farewell, 2 P. "Wms. 569; Pyke v. Crouch, 1 Lord Eaym. ISO; Todd V. Winohelsea, 3 C. & P. 38T ; Doe d. Lloyd v. Passingham, 2 0. & P. 440. That the shorthand writer's notes of the evidence of living witnesses is not receivable, see Williams v. Taylor, 3 M. & P. 350. Note 109 o.— All the cases agree that the decease of the witness will let in testimony of what he swore to on a former trial Glass v. Beach, 5 Venn. Eep. 1*72; Swift's Ev. 125; Jackson 890 Evidence on Former Trial [CH. viii. ex dem. Potter v. Bailey, 2 John. R. 17 ; Miles v. O'Hara, 4 Bra. 108, 111 ; White v. Kibling, 11 John. R. 128; Beals v. Guernsey, 8 Id. 446; Jackson ex dem. Gillespy v. Woolsey, 11 Id. 446 ; Wilbur v. Selden, 6 Cowen R. 162 ; Crary T. Sprague, 12 Wend. 41 ; Clark v. Torce, 15 Wend. 193 ; S. C, 19 Id. 232 ; Sheridan v. Smith, 2 Hill, 538 ; People v. Newman, 6 Hill, 295 ; Osborn v. BeU, 5 Deuio, 370 ; Green v. Brown, 3 Barb, 119 ; Marsh v. Jones, 21 Vt. 378 ; Mc- Adams v. Stilwell, 13 Penn. State R. 90 ; Eegina T. Bird, 2 Eng. Law & Eq. 439 ; Philadelphia> Wilmington & Baltimore Railroad Co. v. Howard, 13 How. IT. S. 307 ; WiUiams v. WiUard, 23 Tt. 369; Huffy. Bennett, 2 Sand. 120; Weeks v. Lowerre, 8 Barb. 530; Chambers v. Hunt, 2 New Jersey, 552 ; Jones v. Wood, 16 Penn. State R. 25 ; Crawford v. Ward, 7 Geo. 445 ; Ken- drick V. The State, 10 Humph. 479; Heth v. Young, 11 B. Mon, 278; Young v. Dearborn, 2 Poster (N. H.) 372. Note 110. — The former testimony of the deceased witness is admissible in another trial of the same cause, either upon repleader, appeal or new trial. Swift's Ev. 125; Marsh v. Jones, swpra. Nor is it necessary that the former testimony should have been given on the trial of a cause in the exact technical shape of an action. It is enough that the point was investigated in a judicial proceeding of any kind, wherein the party to be affected by such testimony had the .right of cross-examination. Accordingly, this doctrine was held of a witness sworn and testifjr- ing before commissioners appointed by a statute to settle the title to lands (Jackson ex dem. Potter V. Bailey, 2 John. Rep. 17); before the trustees of an absconding debtor (Cox v. Pierce'^ Trustees, 7 John Rep. 298) ; before commissioners leg^Uy appointed to examine into the affairs of ,an estate represented insolvent (said in Pitch v. Hyde, Kirby, 258, 259; Before arbitrators; Forney v. Hallagher, 11 Serg. & Rawle, 203 ; Arwin's Lessee v. Bisling, 1 Yeates, 400) ; though this was denied as to a former deposition before referees (Staret's Lessee v. Chambers, 2 Yeates, 232, note), on what ground it is not perceived. The doctrine was lately applied to a proceeding and testimony of a deceased witness, on a caveat against the proof of a wiU, in the Register's Court (Ottinger v. Ottinger, 17 Serg & Rawle, 142) ; and the Superior Court of Connecticut held the same of a deposition taken on the hearing of a petition before the legislature. Ray v. Bush, 1 Root, 81, 82. What a witness swore as to a credit, on a summary application before a judge, to mitigate bail,' was refused on the trial, as not withm the rule ; though the testimony having been given without contradiction by the party, it was held competent within the maxim qui tacet consentire videiar. Jackson v. Winchester, 4 Dall. 205 ; S. C, 2 Yeates, 529. The doctrine has also been denied, all application to a criminal cause, whether it relate to felony or a mere misdemeanor. 2 Ev. Poth. 229 ; State v. Atkins, 1 Tenn. Rep., by Overton, 229 ; Finn v. The Commonwealth, 5 Rand. 701, 708. Neither Mr. Evans nor the judges in the first case cite any authority ; but the judge? remark that such evidence would violate the clause in Tnagna charta, demanding that the accused should be confronted with the witness. In the second case, Peaie's Ev. 60, is cited, who refers to Penwick's Case. That was a proceeding in Parliament by bill of attainder, against Sir John Penwick, for high treason. Lady Fenwiok had spirited away a material witness who had sworn against Cook, on his trial for the same treason. It is true that Peake relies on that case as provmg that such evidence is inadmissible in a crimi- nal proceedmg; but he is followed by no other writer; and the case itself carried the rule even farther against criminals, than was ever done against a party in a civil cause. That case may be seen to this point in 5 Harg. St. Trials, 62, et sequente. The recorder had said the deposition taken before the examining justice, was evidence against the prisoner, he having spirited the .■Bdtuess away. This was treated as something extraordmary ; and said to be without book; and no lawyer would advance it, who was out of his A. B. C. Upon this, Mr. Sloan said he thought Lord Hale was beyond his A. B. C, espeoiaUy in the Pleas of the Crown ; and he read from his book, that an ex parte deposition, taken under the statutes of Phil. & Mar., might be used against the prisoner, when the witness was dead or withdrawn (and see pos't, eiseq., of the text). The general rules of evidence are the same both in civil and criminal oases. In the latter, the law even allows greater latitude than in the former, by receiving declarations in ex- irerms. As to the constitutional difBculty, the criminal is confronted by the witnesses in both the former and present trial ; and we think Maonally tacitly admits (1 Maonally, 390), that the rule under consideration applies as well to a, crimmal as a civil cause. On trial of an indict- ment for roVbing the maU (a capital offence), before Washington, J., the objection was not SEC. IX.] Between same Parties. 391 thought of. United States v. Wood, 3 Wash. 0. C. Eep. 440. See also Rex v. Barber, 1 Boot, 76; where what a witness swore before the grand jury, was received against the prisoner with- out objection. In Crary v. Sprague (12 Wend. 45), Nelson, J., expresses the opinion that such testimony is receivable in a criminal case. It was very properly held that such evidence could not be received of what a witness swore on examination before the board of property (or, in the New York phrase, the commissioners of the land office). The reason given is, that the board could not enforce the attendance of wit- nesses, punish for contempt, nor even administer an oath. They are, therefore, no court, in any sense of the word. Montgomery's Lessee v. Snodgrass, 2 Teates, 230 ; De Haas' Lessee v. Gal- breath, Id. 315 ; Sherman's Leasee v. Dill, 4 Id. 295. See also, Parker's Lessee v. Gonsalus, 1 Serg. & Rawle, 526, 531, 538, and Foster v. Shaw, 1 Serg. & Eawle, 156, 159, 160, 161. (Testi- mony given before arbitrators duly empowered, by a witness since deceased, may be proved in a suit between same parties htigating same subject matter. McAdams v. Stilwell, 13 Penn. State B. 90. So may testimony taken before a committing magistrate, in a criminal case. Ken- drick V. The State, 10 Hump. 4'?9. So may depositions taken on a former trial, or in another action to which the parties to the action on trial were also parties. Philadelphia, &c., Co. v. Howard, 13 How. U. S. 307 ; Crawford v. Ward, 4 Geo. 445 ; Whitcomb v. Steward, 1 Carter, (Ind.) 208 ; Samuel v. Withers, 16 Mis. (1 Bennett), 532.) Note HI. — The cases aU agree that the parties must be the same. See for the general doc- trine, Arderry v. Commonwealth, 3 J. J. Marsh. 183 ; Jackson ex dem. Potter v. Bailey, 2 John. Eep. 17; Powell v. Waters, 17 John. Eep. 176 ; Lightner v. Wike, 4 Serg. & Eawle, 205 ; and Bowie V. O'Neale, 5 Harr. & John, 226, 231 ; and indeed almost every case which occurs on this branch of evidence. See also post, of depositions. Where the testimony is offered as being between the original parties, they must be identically the same with those on the first trial. Though they be the same, with the addition of one de- fendant on the second trial, the testimony is inadmissible. Boardman v. Reed's Lessees, 6 Pet. Eep. 328. The same thing was said where plaintiffs were added in the second suit, though the testimony was received as hearsay in respect to pedigree. Boudereau v. Montgomery, 4 Wash. C. C. Eep. 186, 187, 188. The doctrine of these cases is very strict; for, in both, the testimony offered was to prove what a witness swore against parties, all of whom were before the court on the former occasion, with every chance of cross-examination. The objection lay on the single ground, as was agreed, that the parties offering the testunony were the only persons who had multiplied. The point of inquiry, in both the former and present suits, was exactly the same ; and the additional parties, who alone could oppose on substantial grounds, were willing to waive the objection to their want of opportunity for cross-examination in the former suits. Qmlibet po- test remmcia/re legi pro se miroducio. Had the objection emanated from a new party, it would have been another matter. These learned courts have tied up the receipt of this kind of testi- ' mony to a greater strictness than appears to be required, even in respect to verdicts or judgments. Lawrence v. Hunt, 10 Wend. 80. Where the addition or subtraction of parties changes the point or subject matter in controversy, as is often the case, the objection comes under a distinct cate- gory. An ejectment for land was brought by G.'s heirs against S., and depositions were taken by S., when the suit came to an end by his death. His children then brought a new action for the same and other land, against G.'s heirs and the children of one J., as joint defendants. S.'s de- positions were rejected as evidence in the second action, 1. Because neither J. nor his children were parties to the first suit; 2. The lands in controversy were not identical; and 3. AU the land now in question was never claimed by G. or his heirs, but only a part, the residue being claimed by J. and his children. Walker v. Walker, 16 Serg. & Eawle, 377. It is not necessary that the now parties should be literally or nominally the same. If the for- mer cause were one in which they had notice, and might come in and cross-examine, the identity is complete. In assumpsit by Eitchie & Co. agt Lyne for goods, money, &c., the defendant offered depositions taken in a former cause between himself, plaintiff, and one Crawford, the factor of the now plaintiffs, involving the same question in respect to the same Subject, as the present suit. The finst cause had abated by Crawford's death. The depositions were received ; for the two were in fact cross suits between the same parties in interest The factor had due notice of tak- ing the depositions, and might have qross-examined; and he represented his principals. Eitchie V. Lyne, 1 Call, 489. Again : a caveat was entered against the proof of a will in the Registers' 892 Evidence on Former Trial [CH. viil. Court, by 0., a legatee. A deposition was thereupon taken in that court to be read on an issue of devisavU vel non. The will was admitted to probate ; and now another legatee appealed. On hearing the appeal, the deposition taken on the caveat was received as evidence against the ap- pellant, and held well — that all the legatees were virtually parties to the proceeding on the caveat, and would' have been concluded if there had been no appeaL By appealing, too, the ap- pellant had acknowledged himself to be a party. Ottinger v. Oltinger, 17 Serg. k Eawle, 142. The former trial was in Wilbur &, Doremus agt. Selden, Richards & Ogdeu. The now trial was in Wilbur, survivor of Doremus, agt. Selden, impleaded with Richards, survivors of Ogden. Held substantially the same parties. Wilbur v. Selden, fi Cowen's Rep. 162, 164. This sort of testimony is admisible not only against the party in the former cause, but against those who are privy to him, in estate, in blood, or in law ; and especially where they claim under him by title derived since the former examination. Said or admitted in Jackson ex dem. Bates V. Lawson, and Jackson ex dem. Barton v. Crissey, infra. A. devises a farm to his wife, to hold during her widowhood, remainder to his children. B., claiming under a deed of the land from A., brings ejectment against the widow and another, in which he recovers, on proof of the existence and contents of the deed from A., which was lost or otherwise could not be produced. B. goes into possession under his recovery. After the death of the widow, C, claiming as the grantep of some of A.'s devisees in remainder, brings eject- ment against B. ; and, on the trial, B. offers evidence of what had been sworn to on the trial of the former suit by a witness since deceased, whose testimony went to establish the existence of the deed from A. to B. Held, that the evidence was admissible ; the widow and the remainder- men from whom C. derived his title, and who aU claimed under the will of A.,. being privies in estate. Jackson ex dem. Bates v. Lawson, 15 John. Rep. 539. And see per Washington, J., in in Boudereau v. Montgomery, 4 Wash. C. C. Rep. 188, S. P. But this was denied as to the re- versioner, of a deposition taken in a suit where the tenant for life was a party. Eowe v. Smith, 1 Call, 487. Depositions taken in a suit against one of two administrators, may be read in a subsequent suit against both, for they are privies in law ; one represents both. Per Washington, J., in Boudereau v. Montgomery, 4 Wash. C. C. Rep. 186, 188. But where two persons now claimed separate parcels of land, both of which were once owned by a person from whom the two separately derived title, what a deceased witness once swore in a separate ejectment against one, is not therefore evidence against the other ; for there Is no privity of estate between them in respect to such evidence. Jackson ex dem. Barton v. Crissey, 3 Wend. 251. And the testimony of a deceased witness, given on the trial of an action brought by one person claiming a separate interest, in order to contest a wiU, is not receivable, though to the same point, in an action brought by another against a different defendant, also to invahdate the same wiU. M 'Cully v. Barr, 17 Serg. & Rawle, 445, 451. See Walker v. Walker, supra, and Pegram v. Isabell, 2 Hen. k Mun£ 193. The defendant in ejectment having some years before obtained a verdict for the premises in question, the present lessor of the plaintiff, though neither party nor privy to the former aotioni went iato evidence of what passed at the former trial, to show that the verdict was an improper one. After this, the now defendant was allowed to show what deceased witness swore on that trial, with a view to estabhsh the correctness of that verdict. Doe ex dem. Lloyd v. Passing- ham, 2 Carr. & Payne, 440. But quere. It does not follow that, because one party has given irrelevant testimony, the other may reply to it. (The parties to the action on trial need not be identical with those in the former action, in order to let in the evidence of a witness sworn in the former, and since deceased ; it is enough, if the parties to the present action were also parties to that. Phfladelphia, Wilmington and Baltimore R. E. Co. V. Howard, 13 How. U. S. 307. It is sufficient, if the plaintiff in the action on trial is the administrator of a former plaintiff in a suit involving the same interests (Osborn v. Bill, 5 Denio, 370 ; Clealand v. Huey, 18 Ala. (N. S.) 343 ; Long v. Davis, Id. 801); though the "general rule is, that the parties must be the same, litigating substantially same issues (Crawford v. Ward, 7 Geo. 445 ; Bishop v. Tucker, 4 Rich. 178) ; and the record of the former suit must be produced as a preUminary to the examination. Heth v. Young, 11 B. Mon. 278 ; Chambers v Hunt, 2 New Jer. 552.) Note 112.— The point in issue to be the same. Admitte^, Jackson ex dem. Bates v. Lawson, 15 JohB. Bep. 539 1 recognized, Wilbur v. Selden, 6 Cowen's Sep. 162, 164. See also Walker SEC. IX.J Between same Parties and on same Issue. 893 v. "Walker, stated ante. Almost every case upon this branch of evidence agrees that the point of the two issues must be the same. It is proper to observe also that, so far as identity of parties and point or subject matter are concerned, the evidence derivable from former verdicts, judgments, &c., and of depositions in a former cause, are considered as resting on the same principle with the former testimony of a de- ceased witness. And the oases on one head are, as will be seen by the reports, often adverted to by jurists as reflecting light on the others. See those titles post, and see especially Bull. N. P. 242. (That the point in issue must be the same, see Osborn v. Bill, svpra ; McAdams v. Stilwell, 13 Penn. Stat. B. 90; 13 How. U. S. SOt ; Heth v. Toung, 11 B. Mon. 278. Though the issue need not be precisely the same in both suits, the testimony must relate to the same subject mat- ter, must bear directly on the subject of dispute. Crawford, Governor v. "Ward, 1 Geo. 445 ; Jones V. "Wood, 16 Penn. Stat. R. 25 ; Davis v. The State, 17 Ala, (N. S.) 354; Long v. Davis, 18 Id. 801 ; 'Warmley v. The Commonwealth, 10 Gratt. ("Va.) 658.) Note 113. — The Supreme Court of New York have recently decided that the defendant's own witness on a former trial having died, the plaintiff, on a second trial of the same cause, could not use his former testimony, because the witness was interested to testify in his favor. The defend- ant was allowed on the last trial to object to the incompetency of the witness, the same as if he had been now primarily introduced by the plaintiff; and the reason given for the decision is, that he would not, on such primary offer and objection, be now receivable. Crary v. Sprague, 12-"Wend. 41. This is the only case, we believe, which treats this kind of testimony as primary in any point of view. It is introduced in the same cause, or comes in from another between the same parties on the same point, as secondary evidence, upon the ground that the witness is dead or (as we shall see) becomes insane, or has been kept out of the way by the party against whom his for- mer testimony operated ; or, as many cases have it, simply where the witness is absent beyond the jurisdiction of the court. Per Tilghman, C. J., 4 Serg. & Rawle, 319. The primary testi- mony being competent at the time, it follows in ah other cases that, upon its loss, the secondary is receivable if the loss be not attributable to the willful fault of the party who proposes to give the evidence. Several cases have held, that if the party do not object at the time of the original examination of the witness, by which this kind of secondary evidence is created, he cannot do it afterwards, when it comes to be offered. Answers in a chancery cause to leading inierrogato- ries, were read in a suit at law between privies (the witnesses being dead), though the objection was raised at law. The court say, the objection to the interrogatories not having been made in the former cause, shall not be received now. "Williams v. Williams, 4 Maul, i Selw. 497. In another case, the plaintiff examined an interested witness de bene esse, whom the defendant cross- examined without objection. On the trial (the witness being absent) the court refused to hear the objection, and received the deposition. Ogle v. Peleskie, Holt's N. P. Cas. 483. Tet, had the witnesses been aUve and primarily offered, the objections would have been good in both the above cases. The party not objected to, and a fortiori introducing the witness himself, is the same as if the objection never had existence. In the latter case, he creates the secondary evidence by his own hand, in despite of his adversary, deprives him of aU means of restoring competency to and availing himself of the evidence in a primary shape ; and then objects that he shall not use the remnant thus left to him. The same principle would apply, had the party Bent his vntness away, on finding him unfavorable. In a word, the decision of Crary v. Sprague seems to be a departure from the analogy of many principles and adjudged cases, which it is presumed, however, the court do not mean to shake- (And the decision has not been followed in similar cases (Thomas v. Kinsey, 8 Geo. 421 ; Jones T. Wood, 16 Penn. State, 25) ; where the testimony was taken on commission, notice of its in- tended use should be given. Whitoomb v. Stewart, 1 Carter (Ind.), 208 ; Samuel v. Withers, 16 Mis. (1 Bennett), 532.) Note 114. — The circumstance usually mentioned in the cases as depriving the party of his witness in person, and letting in the testimony which he gave on the former trial, is his death. Up to 1826, the New York cases had allowed no other excuse. Jackson ex dem. Potter v. Bailey, 2 John. Rep. 17; Seals v. Guernsey, 8 John. Rep. 446; White T. Kibling, 11 John. Rep. 128; Jackson ex dem. GiUespy v. Woolsey, Id. 446. In Powell v. Waters (17 John. Rep. 176, 179X 394 Evidence on Former Trial [CH. VTII. Spencer, Gh. J., incidentally mentidns death as an easential prerequisite; and finally, in 'Wilbur V. Selden (6 Cowen's Rep. 162, A. D. 1826), the court, on solemn argument, and upon full con- sideration of the authorities, virtuaUyje-asserted the dictum in Powell r. Waters, and refused the excuse of absence beyond the jurisdiction of the court. In a stm later case (Crary v. Sprague, 12 Wend. 41, 45), they manifest a strong inclination to adhere to their former strictness, although they admit " it is obvious there can scarcely be a shade of difference between death and absence either in principle or hardship." The same prerequisite is essential in Indiana. Hobson v. Doe ex dem. Harper, 2 Blaokf Eep. 308. (The later decisions incline to the same strictness, excluding the testimony unless it be shown that the witness is dead or incompetent to testify. Brogy v. The Commonwealth, 10 Gratt. (Va.) T22 ; Bishop T. Tucker, 4 Rich. 178 ; Weeks v. Lowerre, 8 Barb. 530. In these cases the testi- mony was not allowed, though the witness was absent from the state at the time of the second trial GoTttra, Long v. Davis, 18 Ala. (N. S.) 801.) As far as the courts in Massachusetts have spoken to the question, they have manifested am inclination to the same strictness (per Parker, 0. J., in Le Baron v. Crombie, 14 Mass. E. 234, 236), though it will be seen by the text of our author that the learned chief justice errs in that case in supposing that the English courts do not admit the loss of the vritness from any other cause as an excuse. Id. 236. He is more accurate in saying (Id.) that a supervening interest in the witness will not, in England, be received as an excuse (Chess v. Chess, lY S. & R. 409, S. P.), though even this is repudiated by the Court of Chancery (see post, of the text), and in the chief justice's own state and in his own court it was repudiated in a former case. Gold v. Eddy, 1 Mass. R. 1, 4. The point directly decided in Le Baron v. Crombie, was, that incompetency arising from conviction of an infamous crime should not avail. The courts also in Virginia seem inclined to deny the excuse of absence beyond the jurisdiction of the country. Finn v. The Commonwealth, 5 Rand. 101, 108. Other courts allow a much greater latitude of excuse, letting in not only the death of the witness, in which all the cases agree, but any other ground by which the party is permanently deprived of the primary testimony of the former witness. We have seen by the text, that if the witness have been regularly subpoenaed, and there is slight reason for beUeving that he is kept away by the adverse party, this is one excuse. Rex v. Barber, 1 Root, 16, and per Cheves, J., in Drayton v. Wells, 1 Nott & M'Oord, 411, S. P. An eminent jurist, in England, thinks that residing beyond the jurisdiction of the court, is another. 2 Ev. Poth. 229 ; said also in Drayton V. "WeUg, 1 Nott & M'Cord, 409, 411. And this was directly adjudged in Pennsylvania, where the witness had gone several years before to the state of Ohio. Carpenter v. Groff, 5 Serg. 4 Eawle, 162, 165 ; Magill v. Kauffman, 4 Id. 311, 319, 320, cited 5 Id. 165. MagUl v. Elauffman was the ordinary case of a witness examined viva voce, and Carpenter v. Groff, of a deposition taken in another cause. The learned court, however, place each on the same footing as second- ary evidenee, and receivable upon the same foundation as secondary evidence in any other case. Insanity is another excuse. A person insane is to be considered in the same state, for this pur- jiose, as if he were dead. Per Lord Kenyon, Oh. J., in Rex v. ErisweU, 3 T. R. 101, 121 ; per Cheves, J., in Drayton v. Wells, ,1 Nott & M'Oord, 409, 411. If the witness has become interested by being a party to the present suit, such disability to testify has the same effect as if he were dead, and his deposition on the former trial may be used (Gold v. Eddy, 1 Mass. Rep. 1, 4) ; though the mere circumstance of his becoming interested for the party, as by giving a bond of security in the cause, butstUl being within reach of process, would not have that effect. Chess V. Chess, 11 Serg. k Rawle, 403, 412. The court consider this as the setUed doctrine in Eng- land, as to the courts of law ; and it is so. Post, of the text. A strong additional reason is, that the witness, if produced, might, if objected to, be rendered competent by an indemnity, and ordinarily in a variety of other ways. Beside, it was the party's own fault in this case, and all the authorities agree that one cannot willfully and purposely create the ground for secondary evidence. Irwin v. Reed, 4 Yeates, 512, S. P. Yet, in another case, the Supreme Court of Pennsylvania had allowed the handwriting of a witness to be proved, because he had become interested, after his attestation. Hamilton v. Marsden, 6 Biun. 45. The strict principle of analogy would seem to warrant the secondary evidence proposed in Chess v. Chess, though the court thought otjierwise. 11 Serg. k Rawle, 413. The courts of Louisiana have been quite latitudinary in the ground of excuse. In allowing the tewporary sickness of a witness, they have not gone beyond the reason of receiving a depo- SEC. IX.] When Admissible and How Proved. sition de hem esse; and are easily viiidioated upon principle. The witness had been examined' in open court, and notes of his testimony carefuUy taken. As the court remark, "to have exam- ined him again, laboring under disease, would have afforded no better eyidenoe, perhaps not so clear, as that which had been obtained from him on the former trial." Miller t. Russell, 1 Mart. Rep. (N. S.) 266, 268, citing 2 Stark Bv. 261. But when they come to receive the former vim voce testimony of a deputy sheriff who had been subpoenaed, because absent on official duty, we search in vain for any principle or analogy in the learned writer whom they cite (2 Stark. Ev. 262), to justify such extreme liberality. Noble v. Martin, 7 Mart. Rep. (N. S.) 282. Such testi- mony has been often repudiated, where the absent witness was alive and well, and within reach of process, or rather where the contrary did not appear (Baylor v. Smithers, 1 Monroe, 6, 7 ; Mendum v. Commonwealth, 6 Rand, "104; Richardson v. Stewart's Lessee, 2 Serg. & Rawle, 84; PoweU V. "Waters, 17 John. Rep. 176, 179; Arderry v. Commonwealth, 3 J. J. Marsh, 183, 185); and especially if the witness be present, and capable of being sworn (State v. M'Leod, 1 Hawks, 344), even though he may now have forgotten the facts which he formerly swore 'to. Drayton v. WeUs, 1 Nott & M'Cord, 409. In reviewing the above authorities, it is obvious that those which have come nearest-to the liberal principle on which secondary evidence is generally received, are less anomalous, and therefore more scientific than the narrower decisions. We were struck, on reading the two cases of MagUl v. Kauflfman, and Wilbur v. Selden (svpra), with the different influence which the same analogy exerts upon the minds of two learned men. In both they were called to look at the settled doctrine that a subscribing witness being permanently absent'from the state, lets in the proof of his handwriting ; and thence to infer that simUar absence should furnish similar grounds for the secondary evidence in question. TUghmau, 0. J., yields at once to the force of Buoh an analogy, one which the New York court admit in 1834 (12 Wend. 45), is scarcely a shade difference from the case of death. Savage, C. J., though he concedes the same analogy as to the ground of excuse, denies it in regard to the degree or strength of the secondary testimony which follows. He considers an unsworn attestation proved by opinion of handwriting, and which might have been surreptitiously affixed by the witness after the instrument was executed, as safer than proof of testimony given in public, the only error in respect to which would be a possible misrecolleclion ; and this too, much more easy of correction than details of conversation and hearsay, which are every day received without hesitation. Is it too much to suppose that a simulated attestation might be, and is much oftener palmed off upon a jury, than a deceptive history of what a witness had sworn before a crowded court room ? We admit that this jealousy of Chief Justice Savage is not singular. It began with Livingston, J., in Jackson ex dem. Potter v. Bailey (2 John. Rep. 21). With him, neither memory nor notes can give the former testimony as it should be ; nothing short of a written deposition. It comes out again in Powell v. Watersi where death alone is to warrant such testimony. And see per Cheves, J., 1 Nott & M'Cord, 411. Then, after taking its turn in Wilbur and Selden, we are finally told by Nelson, J. (12 Wend. 45, citing Livingston, J.), that this testimony is to be confined to an impracticable strictness, from its great danger of abuse. All analogy and principle are to he cut down, through fear that a sworn relation in presence of the parties, their counsel and the court who take notes, the jury and an assembled multitude who hear, should be perverted beyond the possibility of correction. We have only to say, that if this be so, the faculties of hearing, attention and recollection, -in respect to all other conversation, should be stricken out from among the instruments of judicial investigation. Note 115. As to the person by whom the former viva wee testimony maybe proved, the American cases agree with the English, that this may be done by any one who heard the testimony, the judge, counsel, jury or by-stander, provided he will, on his oath, undertake to repeat it in such detail as the practice Of the courts may require. Miles v. O'Hara, 4 Binn. 108 ; Pegram v. Isabell, 2 Hen. * Munf. 193 ; United States v. Wood, 3 Wash. C. 0. Rep. 440 ; Lightner v. Wike, 4 Serg. & Eawle, 203; Foster v. Shaw, 7 Serg. &, Rawle, 156; Oaton v. Lenox, 8 Rand. 36; Cornell v. Green, 10 Serg. & Rawle, 16 ; Wolf v. Wyeth, 11 Serg. & Eawle, 149 ; Ottmger v. Ottinger, IT Serg. & Rawle, 143 ; Chess v. Chess, 17 Serg. & Rawle, 409. And see three case »/ra, -oiteil from 8 John. Rep. 446 ; 2 Id. 17 ; and 11 Id. 128. The copy of a judge's notes, or the notes themselves, are not, per se, evidence. To make them of any use, he must resort to them merely as a memorandum to refresh his memory, the same as 396 Evidence on Former Trial [CH. vill. any other witness. Held, in a case where Judge Teates's notes were offered. Miles v. O'Hara, 4 Binn. 108); and per Tilghman, C. J.: "It is no part of his ofaoial duty to take notes of the eyidence. It is not usual to take down everything that a witness says. In general, the judge takes what he thinks to be material ; he condenses it, and puts it in bjs own language. In doing this, he may happen to omit things that are very material. If Judge Teates had appeared as a witness, with his notes in his hands, he could have derived no privilege from his official station ; but, if required, must have sworn that he took those notes at the trial, and that they contained, to the best of his knowledge and belief, the true substance of what was sworn," S;c. Id. 110. And per Teates, J. : " If a by-stander on the trial, who heard the testimony given ten years before, would undertake to state upon oath the testimony that the witness had given, he clearly might be received for this purpose ; but it must have been under the sanction of an oath or af- firmation. His certificate could not be received ; and the certificate of a judge or juror stands on no different foundation. There are grades of credibility, but none of competency. The notes of a judge are no part of the record ; but are his mere private memoranda to assist his recollection. It is sufficient for the judge's purpose, if he commits to paper every material feet stated by the witness which can throw light on the cause." Id. Ill, 112. And though the judge may have died, his notes are not therefore evidence for any purpose, whether in chief, or to support or discredit a witness. But per Duncan, J. : " I do not give any opinion how far a case of necessity might justify, in a civil action, the admission of a deceased judge's notes ; aa a long acquiescence in a former verdict, the death of the jury, a sedulous in- quiry without effect, to procure living testimony." Foster v. Shaw, t Serg. & Eawle, 156, 162, 163. ■ Nor can the judge's statement of the facts, on granting a new trial, be read to show the testimony of the witness on the first. Drayton v. Wells, 1 Nott & M'Cord, 409. How far the memory must be connected with the notes, see post, notes, several Pennsylvania cases in those notes. Though the deceased witness refreshed his memory from a day-book, as to time, that hook need not be produced on the second trial. Ton want the witness's former testimony ; not the ground of it, nor the manner in which his memory may have been refreshed or aided. Cox v. Norton, 1 Pennsylvania Rep. 412, 414, 415. It would, at this day, be disrespectfrd towards very able judges, to repeat the sarcastic com- mentary of our author upon what some have considered Lord Kenyon's impracticable requisition of the witness's very words. Any judge who ever held a circuit, nay, the humblest smatterer in mental philosophy, must agree with Mr. Phillipps that, if taken strictly, it amounts to a total in- terdict of what, in the present frame of our judicial system, is by no means an unimportant or unusual branch of secondary evidence. In some of our courts, however, the interdict has gone forth. At the New York city circuit, Mr. Sedgwick, counsel in the former cause, was sworn to prove the viva voce testimony o( one -Scott, who was sworn in that cause, but was now absent in the state of Pennsylvania. Mr. S. could not state with precision what Scott swore to, and could not recollect the phraseology of the ■witness. His testimony was therefore objected to ; but the judge allowed him to state his recol- lection of the substance of what Scott swore to ; and he produced his notes of Scott's testimony, but did not pretend that they contained Scott's exact words or phraseology. The Supreme Court held, in the first place, that'Scott's being alive was a decisive objection to the evidence. They then observe, " There is yet another difficulty. Mr. Sedgwick could not siaU ilie words, bid only the svi- atcmce of his testimony." The chief justice then cites the rule of Lord Kenyon with approbation, that the words, and not the effect, is to be given ; and then relies on Chief Justice Tilghman, in Lightner v. Wike, as showing satisfactorily the reason of the rule, and the objection to receiving the notes of counsel ; and he finally concludes that the testimony of Mr. Sedgwick was inadmis- sible, because he could not give the words. "Wilbur v. Selden, 5 Oowen's Rep. 162, 165. This was in 1826. In 1834, we are told by the same court that eminent judges have cast a doubt over the soundness of the rule which receives such testimony at all. Lord Kenyon Is mentioned with apparent approbation, too, as confining the operation of the rule to an almost impracticable Btriotness (12 Wend. 45), indeed, it should have been said entirely impracticable, if he is to be understood according to the commentary of Wilbur v. Selden. The rule does in truth seem to be pretty much gone in New York. See further to that point, ante, note 114. Hardly any one can present a more perfect. history of viva voce testimony than was offered by Mr. Sedgwick. SEC. IX.] How Proved in the Present. 397 Such testimony had formerly been given by Mr. Fisk, counsel, from his notes, in Jackson ex dem. Gillespy v. Woolsey (8 John. Rep. 446) ; by a commissioner, of what a witness swore before the board for settling the Onondaga titles (Jackson ex dem. Potter v. Bailey, 2 John. Rep. 17) ; and by a by-stander, in White v. Kibling (11 John. Rep. 128). These passed, however, without ob- jection as to details. "When Lord Kenyon's rule in its stricter sense comes into action, the most experienced stenographer cannot satisfy it. On a second trial of the prisoner for robbmg the mail, Mr. Bache, who was engaged in teporting, and who published the former trial, was called to prove what Hare, now dead, swore on that trial. The court said the evidence was admis- sible, provided the witness could repeat the testimony which Hare gave, and not merely what he conceived to be the substance and effect of it, of which the jury alone were to judge. He may refresh his memory from notes which he took of the evidence at the trial, or from a newspaper printed by himself containing the evidence of Hare, as taJien down by the witness. But he must be sure of the accuracy of the statement, from his own recollection ; and not merely from a con- fidence in the accuracy of the statement to which he refers. The witness acknowledged he could not say that he reqpllected the words of Hare ; though he felt the most entire confidence that he had taken them down as the witness uttered them ; and that they were truly copied into the paper published under his own inspection. The court refused to suffer him to be examined. United States v. Wood, 3 Wash. C. C. Rep. 440. Lord Kenyon's rule has been understood very differently by his most learned commentators. Mr. Starkie, understanding the very words to be required, adds, " But quere, whether so great exactness is necessary; even an indictment for peijury sets out the substance only." 2 Stark. Ev. 280, note n. Our author, it will be seen, thinks the words of the rule susceptible of such a construction as shall let in the substance, and requiring certain of the exact words only, as in stating a 09nversation, where they are requisite to a safe understanding of its substance. In Pegram v. Isabell (2 Hen. &, Munf. 193), the substance of a deceased witness's testimony was .proved, aijd received without objection ; and in a subsequent Virginia case, this is shown not to be a departure from Lord Kenyon's meaning. The last case was as follows : A new trial being granted, and one of the witnesses on the first trial (Gibson) having since died, the plaintiffs offered on the new trial to show, by one of the jurors on the first trial, what Gibson swore. It was objected that the juror must give the very words of Gibson ; not the substance of what he swore to. The objection was overruled ; and the court allowed him to state the substance which he did. On appeal, the leading opinion on this point was concurred in by aU the judges present (three out of five). That was delivered by Judge Carr, who reviews the cases. He did not think the dictum of Lord Kenyon meant that the very words must be given. This was a re- striction which, in ninety-nine cases out of a hundred, would prevent the application of the rule he had just recognized, that the testimony of the former witness might be given. He said a man who has hstened attentively to a witness, especially a juryman (as here), may, if called upon within twelve months (as in our case), give substantially a correct detail of what the deceased witness stated. But if you call upon him to repeat the words, and to swear that they are the very words, no man who had the least respect for his reputation would venture to do it unless he had written down the words at the moment of their delivery. In Pyke v. Crouch (1 Lord Raym. 730), it is said the matter deposed at the former trial may be proved. It is not confined to the words. In Buckworth's Case (Sir T. Raym. 170), and Coker v. Farewell (2 P. Wms. 563) the rule was admitted without quaUfication. In Mayor of Doncaster v. Day (3 Taunt. 261) Mansfield, Ch. J., said, what the former witness swore may " be given in evidence, either from the judge's notes, or from notes that have been taken by any other person, who will swear to their accuracy; or the former evidence may be proved by any other person who will swear from his memory, to its having been given." This case seemed to him (Judge Carr) to lay down the rule as broadly as any of the former. " A judge's notes wiU furnish proof of the evidence. These notes, we know, never pretend to contain the very words of the witness. The judge notes the substance only of the facts which he deems material. The same doctrine is also distinctly laid down as settled, in White v. Kibling, 11 John. Rep. 131, and Miles T. O'Hara, 4 Binn. 111. I think, on the whole, that it is the doctrine both of reason and authority, that where a vritness who has been examined in a cause dies, his evidence may be proved in any subsequent trial of the cause, if the person proving it wiU swear that he gives the matter substaniiatty." Oaton v. Lenox, &c., 6 Rand. 36 to 39. The courts in Maryland and 398 Evidence on Former Trial [CH. vill. North Carolina also take a distinction between the substance and the effect of the former testi- mony; the svhstcmce may be given, not the effect; the exact words are not necessary. Bowie v. O'Neale, 5 Har. & John. 226 ; Ballenger v. Barnes, 3 Dev. 460. The now witness, say the court, in the first case, must not give his own inference from the former testimony ; as the jury alone are competent to draw conclusions of fact from testimony. The distinction seems to recon- cile Lord Kenyon's rule with the common and practicable course in proving all other matters of hearsay. It deserves illustration. A witness says that A., on the former trial, proved the de- fendant's handwriting. That would be speaking to the effect of A.'s testimony. That A. said he had often seen the defendant write, by which he had become acquainted with his hand- writing, and he verily believed that the name subscribed to the note produced was the defend- ant's hand, would be the substance. This vvould give the words themselves with a degree of exactness, which might, therefore, in one sense, be called the very words. Put the witness to repeat all the very words of A. with the strictest degree lof verbal exactness, and he would blunder even in such a short history. The medium exactness is about the same as required in proving oral slander, perjury, oral contracts, admissions, declarations, &c, Even in New York it is expressly holden, that in swearing to an ordinary conversation, the witness may give his ifm- pressions as to the svbstance. Snell v. Moses, 1 John. Eep. 99, 103. In Pennsylvania, the narrow construction of Lord Kenyon's rule, if it ever prevailed, maintained but a short ascendency. The judges of that state, like those of New York and Mr. Justice Washington, admit that the law of England requires the very words in the strictest sense ; and did not undertake, like our author and the Tirginia courts, to give it a practical application. They seem wisely to have seen that, under a system where new trials in land causes are a matter of course, and where also the right to bring error, or appeal, the liberality of courts in granting new trials, and the facility with which juries are discharged for obstinate disagreement, result in such very frequent re-investigation of causes as we witness in the American courts, and consequently where immense tracts of evidence must lie in the viva voce testimony of deceased or absent witnesses on former trials of the same causes, truth will be continually obscured, if we allow the suppres- sion of such testimony. The result has been an avowed departure from what they conceived to be the English rule, in a series of oases, not only estabhshing a practical mode of communicating such testimony, but which have enlarged the means for the preservation of other evidence, by a, judicious combination of memoranda and memory. "We have already seen in Miles v. O'Hara (awpra), that notes of the former testimony are not per se evidence, by whomsoever made. The following cases wiU show how far they mast be connected with the memory. To prove testimony of a witness, counsel on the former trial was called, but did not remember the testimony, even after he had read his notes. His notes were offered. These were held mere private memoranda from which he might refresh his memory, from which, when refreshed, he must swear, and not from his notes. TUghman, C. J., said : "In general, the taker of notes condenses the words of the witness into what he. conceives to be the substance. But the partiality of counsel inclines them to view everything in a light favorable to their cause. During the trial, their ideas pass through a medium that diverts them from the right line." Lightner v. Wtke, 4 Serg. & Eawle, 203, 205, 206. In another case, Mr. Douglass, of counsel, stated in writing what he could testify of the deceased witness's evidence, on a former trial between the same parties ; and said "this was all he could recollect of what the witness said on his examination in chief" Held inadmissible. Tilghman, C. J., said ; " Evidence of what the former witness swore could not be admitted, unless you have the whole of it. To give what he swore on his examination in chief, and omit his cross-examination, would be to deprive the opposite party of the benefit of his cross-examination. He recognized the rule in Cornell v. Green (by the title of Armstrong, &o., v. Green), that the witness may be admitted, if he can undertake to give the substance of what the deceased witness swore ; but said he must give the whole of it ; not the whole of a long examination, in which the deceased person may have spoken to a variety of facts ; but he must bp able to give the whole of what was said on the particular subject he was called to prove." Wolf v. Wyeth, 11 Serg. & Rawle, 149, 150, 151. In another case, M. was called to prove what a deceased witness swore. He said he could not say the ex- act words, but could give the amount and substance ; remembered that there was a cross-exam- ination, but not what questions were put; but if reminded by questions now, he thought he SEC. IX.] Hoiv proved in the Present. S99 could reoolleot some of them. Held inadmissible. The court say they do not require the very words, as is done in England, but allow the substance to be given ; butin this, there must be no equivocation or ambiguity. "Watson y. GUday, 11 Serg. & Kawle, 337, 338, 342. The following cases illustrate still farther the degree of connection required between notes and memory, while they settle that the substance of the former testimony need only be given ; and, indeed, in some cases where that is not recollected, that the effect alone will be received. Fisher, of counsel for the plaintiff, was offered to prove what a deceased witness swore on the former trial. He said, from having been consulted before the suit was instituted, and directing what was to be done, and from what the deceased witness swore was done, from having fre- quently recurred to his notes, and from conversation with him before the trial, -he had a perfect recollection of what he swore. He was in the habit of taMng down the very words of a wit- ness, not the substance ; and believed his notes contained every word. Without his notes, he would not undertake to state every word ; but could state the material part without recurring to his notes. He was permitted to testify. On error, upon this point, the court said, by Gibson, J., they could not see any reason for the rule stated in Philhpps, that the witness must undertake to repeat his very words. The rule, applied in that degree of strictness, would be useless in practice ; for there is no man, be his powers of recollection what they may, who Could, in onS case picked out of ten thousand, be qualified to give such evidence ; and if he should undertake positively to swear to the very words, the jury ought, on that account alone, to disbeUeve him. The reason assigned, that the jury, and not the witness, is to judge of the effect, is more plausible than sound. The truth is, that evidence of what a deceaspd witness said, being inferior ia its nature to a personal examination, is admissible, on the ground that better evidence does not remain, the jury being left to form their own judgment of the accuracy of the narration. I cannot see why the same necessity, which opens the way for secondary evidence of the very, words of a deceased witness, should not open the way also for the substance of his testimony when his very words cannot be recollected, or discover the policy of a rule which should shut out the little light that is left, when it is aU that is left, merely because it may not be sufficient to remove everything like obscurity. Comell v. Green, 10 Serg. & Rawle, 16, 17. " "Where. writtm notes of a deceased witness are proved, it is sufBcient to prove, by the person who made them, that they contain the true substance of what was said." Miles v. O'Hara, 4 Bin. 108. " It seems singular, that instead of trusting to Mr. Fisher's recollection, the plaintiff did not offer his (Mr. P.'s) noies in evidence, against which, when properly authenticated, there could be no sort of objection." Gibson, J., in Cornell v. Green, 10 Serg. & Rawle, 17. In another case, per Gibson, J. : "By the English law, a person who is called to prove what a deceased witness swore, must undertake to repeat his very words ; and not merely to swear to their effect. To do this, would require powers of memory which seldom fall to the lot of any one ; and the rule, under this restriction, although it might often produce perjury, would be of no practical utihty ; for no juror of common discretion would believe a witness who should undertake to repeat the very words of another, in relating the manner in which any transaction took place, whether simple or complicated. But this absurdity has been exploded by this court ; and, in this state,, it, is unnecessary to profess to use the language of a deceased witness,, but only to undertake to state the substance of all he swore in relation to the particular transaction." Smith v. Lane,. 12 Serg. & Rawle, 34, 35. In another cate, Mr. Forward, of counsel for the defendants, was intro- duced for them, to prove what H. and C, both deceased, swore on the former trial of the cause. He said, " I was counsel for the defendants on the last trial. I took fuU notes of the trial. I , took down the testimony of the witnesses in question. I beheve the greater part is in the words of the witnesses. The whole of it may not be in the very words. I don't recollect the testunony independent of the notes. I do not recollect any question put on the cross-examina- tion, nor whether there was a cross-examination. I believe Iput down what was stated by the witnesses in reply. I may have omitted to note what I supposed to be hnmaterial to the issue trying.'' On objection, his notes were received in connection with his testimony. On error, held well. The court denied that the former testimony need be given word for. word. Swearing to his belief that the notes contain the true substance, is sufBcient. There was no proof here of any cross-examination; much less, that it produced anything worth remembering. To require the identical words, would destroy the rule which admits this kind of evidence. It was impos- sible, after a lapse of time, for an indifferent person to remember the words, or an advocate or 400 Evidence on Former Trial [CH. Vlil. evidence, though classed among the exceptions to the rule respecting hear- say, is of a different character from any which has been before mentioned ; for not only is it free from the objection of being extra-judicial, or of being without oath, but the party also, who is to be affected by it, had the power of cross-examining the witness under the same circumstances as on the subsequent trial. The exception in question applies to depositions taken in chancery or before magistrates, and receives much illustration from the decisions respec- ting those kinds of documents. It will, therefore, be further considered in that part of the work which treats of written evidence. How testimony may be proved. The proof may be given, either by notes made at the time by a party who heard the testimony, provided he can swear to their accuracy, or from the memory of such party ;(1) or even, it has been said, from the judge's notes.(2) judge to note down everything, whether pertinent or not. "Without notes, one may state sub- stance, but not words. The only chance of approaching the words is by the notes of the judge or counsel. Even in proving slanderous words, a case of great strictness, all the words are not required. The witness, without pretending to give all, may give what he does remember. In proving a lost deed, or other writing by parol, no one ever heard of a witness being called on to repeat verbatim. True, counsel may sometimes take notes chiefly to assist their own arguments. They may set down part and trust to memory for part. But if the notes on one side are not trusted, let those on the other be produced and sworn to, if they can be sworn to, or the notes of the judge, or let recourse be had to the memory of jurors, or other persons present, if it shall be insisted that memory is safer than writing. Chess v. Chess et al., IT Serg. & Eawle, 409. On the trial of Ballenger v. Barnes (3 Dev. 460), which was a case much like the last, the course here recommended was pursued. The counsel testified for the plaintiff, to the substance, from notes ; and the defendant afterwards, when it came his turn to go on with his proof, added evi- dence of other facts, to which the former witness swore. He then moved to shut out the whole as incompetent, because not truly given at first. But this was not allowed ; and the result of the examination on both sides went to the jury. On motion for a new trial, the practice was decidedly approved. Henderson, J., said, "No man can give the words where the testimony exceeds a single sentence." p. 465. On another occasion, a witness testified to what a former deceased witness stated, and remarked that his memory had been refreshed by hearing the notes of the former testimony read. It was held proper, then, to inquire of him whether he had not heard the counsel say on oath, that the notes were taken, not ou the former trial, but preparatory to it, and consisted of what the counsel expected to prove. Withers v. Atkinson, 1 Watts, 236. (The minutes of the judge who presided on the former trial are not of themselves evidence of What the witness testified to ; but if the person makiug them can swear that they are correct, or that he has no doubt of their being so, they are admissible. Huff v. Bennett, 4 Sand. 120 ; Jones V. "Wood, 16 Penn. State R. 25 ; 13 Id. 90 ; Rogina v. Bird, supra. Tho precise words of the deceased witness need not be given ; but the person called to prove hia testimony must state the substance of his whole testimony. Young v. Dearborn, 2 Foster (N. H.), 372 ; Kendrick v. The State, 10 Humph. 479. If he took minutes of the evidence taken on the former trial, and testi- fies to their accuracy, he may read them. Van Buren v. Cookburn, 14 Barb. 118 ; Riggins v. Brown, 12 Geo. 271. See also WiUiams v. "Willard, 23 Vt. 369 ; and Marsh v. Jones, 21 Id. 378.J (1) Doncaster (Mayor) v. Day, 3 Taunt. 262 ; Strutt v. Bovington, 5 Esp. 57 ; S. C, 1 Stark E. 211, n. See also by Lord Kenyon, C. J., in R. v. Joliffe, 4 T. R. 290. (2) By Lord Mansfield, C. J., in Doncaster (Mayor) v. Day, ut supra. See Crease v. Barrett, 1 C, M. & R. 919. SEC. IX.] Between same Parties. 401 It has been said, that the person called to prove what a deceased -wit- ness said on the former trial, must undertake to repeat precisely his very words, and not merely to swear to their effect.(l) This, it is conceived, can only mean, at the furthest, that he must be able to speak to the iden- tical words of the former witness, when it is essential that the very identi- cal words should be known. In some cases, proof of the substance of the former evidence may be as satisfactory as proof of the identical words, — unless the witness can undertake (what is not possible) to deliver the same words precisely with the same manner and in the same tone. Even on an indictment for perjury, it has been held sufficient, that a wit- ness state from recollection the evidence which the defendant gave, — though he cannot say with certainty, that it was all the evidence which he gave, — if he can say with certainty, that it was all he gave on that point, and that there was nothing to qualify it.(2) Where a person, who had been sworn on a former trial between the same parties on the same issue, and subpoenaed to appear as a witness at a second trial, did not appear in obedience to the writ, the Court of King's Bench, seeing.reason to believe that he had been kept away by the contrivance of the adverse party, admitted other witnesses to prove what he had sworn on the former occa- sion.(3) "Who are considered the same parties. It has also been held, that where a witness has been examined as the attesting witness to a will, upon an issue of devisavit vel non, in which A. and others were plaintiffs, and B. defendant, his examination, after his decease, may be adduced by B. in an ejectment, brought by him against A. alone; for the lessor of the plaintiff is the real party in an ejectment, and A. had the same power at the former trial of objecting to the compe- tency of the witness, and the same right of cross-examination and of call- ing witnesses to contradict or discredict bis testimony, as he would have had, if the witness had been alive and subpoenaed on the second trial. It was also held, that the evidence was producible in the cause for the same purpose and to the same extent, as if the witness had been alive and had given his evidence ; consequently, that his evidence at the former trial was sufficient proof of the will, and the evidence of a surviving wit- ness was not better evidence.(4:) (1) Lord Palmerston's Case, cited by Lord Kenyon, C. J., in E. v. Joliffe, 4 T. R. 296 ; Ennia V. Donnisthorne, Corn. Sum. Aaa. 1'789, by Lord Kenyon, C. J., citing E. v. Deboragh from one of his own notes. (2) E. V. Bowley, 1 Mo. Or. Ca. Ill; R. v. Dowlin, Pea. R. ItO. See also E. v. Jones, Id. 38. (3) Green v. Gaturk, B. N. P. 243. (4) Wright V. Doe d. Tatham, 1 A. B. 321. Voh. I. 26 402 Admissions by Parties, [CH. VIII. Privies. It seems that the same rule would apply, where the parties to the first trial were represented on the second occasion by persons who had suc- ceeded to them by privity of law, of blood, or of estate ; and that the rule upon the subject is in this respect analogous to that which prevails as to estoppels by judgment, the admissibility of verdicts, and the effect of admissions.(l) SECTIOK X. Exception to the General Rule as to Hearsay, in the Case of Admissions hy Parties to ike Suit. Exceptions to the rule respecting hearsay evidence are made in the case of admissions by parties to the suit, and in the case of confessions hy prisoners. The principle on which they are received is founded chiefly on the reasonable presumption in favor of the truth of a statement, when it is against the interest of the person who makes it.(2) (1) See Doe d. Foster v. Eari of Derby, 1 A. & E. 790, ■where the evidence was rejected on the ground that the two trials were not substantially between the same parties. See the decisions as to depositions, and as to verdicts and admissions, infra. Note 116. — Beals v. Guernsey, 8 John. Eep. 446, S. P. The record of the former recovery was produced to lay the foundation for the testimony of a deceased witness. Jackson ex dem. Bates v. Lawson, 15 John. Rep. 539. If no objection be made for the want of the roll, Nisi Prius record, or other preliminary evidence that the former cause was tried, it will be presumed that such was the fact ; and the objection cannot be afterwards made. Beals v. Guernsey, 8 John. Rep. 451 ; White V. Kiblihg, 11 John. Rep. 128. (As to proof of witness's death, that he was, when he testified, a very old niau, and that the now witness believes, though he does not positively know him to be dead, was holden sufficient. Pegram v. Isabell, 2 Hen. & Munf. 193.) (2) Note 11 T. — The learned author has not thought it necessary to observe, that the admission or declaration of a party shall not be received as evidence in his favor. As a, general rule, this is most plain. Tet even this rule is by no means universal ; for, as will hereafter be seen, dedara- tions which make a part of the res gestce, entries in book accounts, declarations by officers in their returns, and admissions given in evidence by the opposite party, are many times evidence in favor of the person who makes them. Declarations, too, which, when made, are against the party, may sometimes be given in evidence by himself ou that ground ; as where he indorses a payment upon a bond or note, which he may sometimes use to repel the Statute of Limitations, or the presumption of payment arising from lapse of time. All these and other like cases will be found to present themselves in the course of this and subsequent notes. So many admissions or declarations have been proposed, as evidence for the party making them, upon the above or some other grounds ; so many American cases have arisen and been reported, pointing out prin- ciples upon which they are to be received or rejected ; and, withal, the distinctions aj-e some- times so subtle between those which are admissible and inadmissible, that a glance at the latter will be found quite useful towards an understanding of the former. I propose, therefore, to introduce the subject here, by noticing some of those which are not admissible, to be followed by some few which are admissible, leaving the latter, however, mainly to subsequent and more ap- propriate heads of this work. First, then, as to the general rule. An admission or declaration is not admissible in fevor of the party making it. La Farge v. Kneeland, 1 Cowen's Rep. 459 ; Bobbins v. Harvey, 5 Conn. Eep. SEC. X.] General liule. 403 335. And even an indorsement of pprt payment on a promissory note, is not of itself, and as a matter of course, admissible to take it out of the Statute of Limitations. Whitney v. Bigelo-w, ■ 4 Piqk. 110 ; Roseboom v. BiUington, 17 John. Eep. 182. "When it may be received will be seen infra in this note. So of a credit on an account-book, the credit being small in proportion to the account, dated after sb: years have run, and apparently made with a view to elude the statute. Taylor's Ex'rs v. M'Donald, 2 Eep. Const. Ct. 178 ; S. C, cited, 2 M'Cord, 418, 419, 420. It was said in Roseboom v. Billington {swpraj, that the indorsement would have been admissi- ble, had it been shown to have been made at a time when it was against the interest of the party who made it. But this principle of receiving admissions is by no means universal, nor is it a sufficient reason that the admission is made before any controversy has arisen. Thus, in an action for goods sold, the defendant had been charged as trustee in respect to the debt in (juestion as due to a third person, and had admitted this to be so, and had judgment against him. The debt was in truth due to the plaintiff, though the question was a doubtful one upon the facts. Held, that the defendant's admissions in the fprmer suit were not evidence for him. "Wise y. Hilton, 4 GreenL 425. So an entry in the party's books, though at the time against him, is not afterwards evidence for him. Thus, in assumpsit on a note payable to the plaintiff's testator, against five persons as makers, one question was, whether two were not principals, and the other three sure- ties. To show this, the book of the two crediting the note as'their own to the testator at its date, was offered by the defendants. Though the entry was against the interest of the two at the time, yet held that it could not be used in their favor, or in favor of theu- co-defendants. Soher- merhom v. Schermerhorn and others, 1 Wend. Rep. 119. So, in an action on a note, dated 14th April, 1828, commenced by attaching the goods of the maker, Gregory, on the same 14th day, Peck, a, subsequent attaching creditor, was allowed to defend on the alleged ground that the plaintiff's note was a fraud on creditors. A part of the consideration of the plaintiff's note was two orders drawn by Gregory on, and accepted by the plaintiff, in favor of two other credi- tors of Gregory, on the same day. To show that the orders were accepted anterior to the com- mencement of the suit, the plaintiff offered in evidence his own declaration to B., a witness, made on the same day, but before the attachment, that he had agreed to pay the debts secured by the orders. Held inadmissible. The court, by Parker, C. J., said, "The declarations of a party in his own favor, by the general rule, are inadmissible. A man cannot testify in his own cause ; much leas can his declarations not under oath be admitted. There are cases of declarations or entries, operating in &vor of the party making them, which are admissible ; but in all instances they relate to or accompany some act, and therefore are a part of the res gestae. The declarations excluded in this case were not of that character, but mere naked assertions of a fact, which do not come within any of the exceptions to the general rule. It is said that the declaration so made is a feet. That is true ; but the fact ia also a declaration only, made by a party to support his own interest. Now it is true that, at the tirne of .making the declaration, it probably had no reference to any controversy, Tet, if it be admitted that such declarations are good evidence, we shall soon find cases of declarations and assertions of a fact as having happened, with a view to support what may be afterwards done, when it is too late to have its effect, and when it may become necessary to ante-date, if we may use the expression, the fact in controversy. I cannot see that anything beyond this is meant by Starkie (Ev. pt. 1, pp. 48, 49), and he cites no author- ity for some of his positions. Carter v. Gregory, 8 Pick. 165, 168, 169. In Massachusetts, the return and acts of a ministerial officer are denied as evidence in his favor. Thus, in trespass by the plaintiff, a deputy sheriff, he proved that he had attached certain property of S. on the l7th December, 1825, which was afterwards removed by the defendant. The defendant, another deputy, offered in evidence a writ, and his own return upon it, showing that he had attached the same property the day before, and also, that on the day before, he was seen at work within view of the property, and told a witness he had attached it. Held, that neither the return nor decla. rations were admissible, not being a part of the res gestae. Merrill v. Sawyer, 8 Pick. 397, 398. But see Cornell v. Cook (7 Cowen's Eep. 310, 313j, also stated infra, contra, with several similar cases also noticed infra, of the return and records of officers. Letters -ymtten by a party are not evidence for him. Fowle y. Stevenson, 1 John. Gas. 110 ; Champlin v. Tilley, 3 Day, 303, 306. Thus, in ejectment by the proprietor of Pennsylvania, the defendant showed a deed to himself. The plaintiff offered a letter from 'WiUiara Penn, the pre" 404 Admissions by Parties, [CH. Vlil. prietor, to show that the grant was on a condition not performed. Overruled, on the ground that a man cannot create evidence for himself. Proprietary's Lessee v. Ealston, 1 Dall. 18. If a party's declarations or admissions, which when taken in one way are evidence against himself, shall not be received for him ; if his letters in his own favor are to be excluded, it fol- lows of course that other oral or written declarations, either indifferent at the time or favorable to his own interest, are inadmissible. Accordingly, in an action against A. 4; B., as partners, on a contract executed in the partnership name, A. suffered a default, and B. pleaded the general issue. Held, that letters written by A. in the partnership name could not be read in evidence by B. to show that he was not a partner with A. Champlin's Ex'r v. Tilley, 3 Day, 303, 306. It is said, the declarations of a party are never evidence for him, unless they accompany acts and be pars res gestce, and are offered as such ; not even to prove insanity. State v. Scott, 1 Hawks, 24. So in trespass against an overseer for killing the plaintiff's slave, the defendant offered evidence of an apology which he rendered to the surgeon for not calling in his aid sooner, after heating the slave. Held inadmissible. Perrie v. WiUiams, 5 Mart. Lou. Eep. (ST. S.) 694. The registry of a vessel procured by a party is no evidence for him, though it may be against him. Ligon V. Orleans Nav. Co., 1 Lou. Eep. (N. S.) 682, 683. A prisoner has no right to demand that his statements, on examination bef9re the magistrate, be read for him. The People v. Jordine, N. T. Gen. Sess. Oct. Term, 1818, Jud. Repos. 107. Nor what he said in conversation when charged with the offence (People v. Scott, N. T. Gen. Sess. Sept. Term, 1818, Jud. Eepos. 50), unless it be a part of the res gesto, or to discredit a witness (Id.), or be introduced by the prose- cution. Id. A survey, though ancient, made by direction of the owner of the land, for his own convenience, is not admissible evidence for him or those claiming under -him. Jones v. Huggius, 1 Dev. 223. On a question whether the plaintiff, to whom cotton was consigned as a factor of the defendant, had sold it in a foreign market ; held, that the plaintiffs letters, averring and in- closing an account of sales of the cotton, among other articles, though offered merely with the view of fixing the defendant with notice and subsequent acquiescence in the correctness of the accounts, and so to infer the sales, were inadmissible. Anthoine v. Coit, 2 Hall's Eep. C. P. N. T. 40. In an action against alleged partners, the declarations of the defendants, made subsequent to the commencement of the alleged partnership business, are not admissible for them to limit its nature and extent ; as to show it an agency the one for the other ; though an agreement between them, at or before its commencement, would be. Mitchell v. Eoulstone, 2 Hall's Eep. C. P. IS. T. 351. A written communication, made by the defendant to the plaintiff, in respect to the claim of the latter, was held inadmissible in evidence for the defendant. Birkbeck v. Burrows, 2 Hall's Rep. C. P. N. T. 51. In an action for fraudulently passing the biUs of a broken bank, the plain- tiff was denied liberty to prove that he showed the bills to the witness and stated that he had them from the defendant — even to show how the witness's attention was drawn to the bUls, and thus strengthen the inference that he had correctly identified them with bills which he had before seen in the hands of the defendant. Watson v. Osborne, 8 Conn. Eep. 363. An inventory made and returned by an administrator, after an action commenced by him for the recovery of the property inventoried, is not evidence for him. Allender v. Eiston, 2 Gill & John. 86. The ad- missions of a debtor against the garnishee in a foreign attachment are not receivable ; for they go to throw the claim from the debtor on to another. Enos v. Tuttle, 3 Conn. Eep. 24T. In an ac- tion against a sheriff for not returning an execution within thurty days, his return, indorsed that he omitted to do so by reason of sickness, is not admissible to prove the fact ; for it is no part of his office to make such a return.' Bruce v. Dyall, 5 Monroe, 125, 126. Therefore, it is no more than a written declaration by a private person. Id. It is the same though the declarant be dead, and his declarations be offered for his estate. Thus, in trover for bonds of the intestate, the defendant (the intestate's son) insisted the intestate gave them to him, The-intestate's declarations tending to negative this, made in the defendant's absence, were held inadmissible. Romig v. Eomig, 2 Rawle, 241 ; Scull et al., Adm'rs of Irwin V. Wallace's Ex'rs, on error, 15 Serg. & Eawle, 231, 233. A corporation i^ in this respect on a footing with natural persons. Thus the North Carolina State Bank, being a mere private corporation, its books of accounts of bank dealing are not, in a suit between the bank and a third person, evidence for the former. The State Bank of N. 0. v. "M'Neil, 1 Hawks, 36. So the statements of a party's agent are not admissible for him, unless a part of the res gesUx. SEC. X.J Principles of Eoixeption. 405 Thus the letters of an agent giving his principal an account of what had taken place in respect to the matters of his agency are inadmissible for his principal, even after the agent's death. Noi" ton's Adm'r v. Smith, 4 Monroe, 314. Admitting a party's declaration in his own favor, if objected to, is fatal on error, though the court below direct the jury to disregard it. Tuttle v. Hunt, 2 Cowen's Rep. 436; Penfield v. Oar" penter, 13 John. Bep. 350 ; Fisher v. Bailey, 1 Ashmead's Rep. 209. Secondly., It remains to consider some exceptions to the rule that a party's declarations or ad- missions shall not be received as evidence for him. These exceptions arise in general, when they are connected with some circumstance giving the evidence a force beyond what it can have as a mere naked assertion. Accordingly, a constable's return is evidence for him in an action for taking the goods away under pretence of a previous levy. Cornell v. Cook, '7 Cowen's Rep. 310, 313. Confo-o, Merrill v. Sawyer, s«j3ro. But why should this not be so ? Indorsing a return is part of his office. It is an act, not only part of the res gesim, but the res gesice itself. On what other principle is it that the record of a justice, drawn up for the very purpose long after the conviction, will protect him against an action? Eawcett v. Fowles, 1 Barn. & Cress. 394; Rogers v. Jones, 3 Id. 409 ; Mather v. Hood, 8 John. Rep. 44; Bridgett v. Coyney, Esq., 1 Man- & RyL 211, per Ld. Tenterden, C. J., towards the close of his opinion. But to make a return evidence for the officer, it must be strictly within his official duty ; for where he indorsed that he had omitted to return within the required time by reason of sickness, this was holden out of his duty, and therefore not admissible for him. Bruce v. Dyall, 5 Monroe, 125, 126. A certificate of a justice (authorized as evidence generally by a statute in New York) of a judgment, execution or other proceeding in a cause before him, is evidence for himself. It may be made out after the expiration of his office. Maynard v. Thompson, 8 Wend. 393. Semb. In an action by an officer for property levied on by him, his own indorsement on the execution of the property levied on, is evidence to identify the property. Spoor v. Holland, 8 "Wend. 445. An indorsement of part payment upon a promissory note, everything about it appearing fair, is admissible as evidence to the jury to take it out of the Statute of limitations, and will control, imless the defendant impeach it in some way. Gibson v. Peebles, 2 M'Cord, 418. As where the note was large (e. g. four hundred dollars), and the indorsement bearing date two years after the date of the note, was of three hundred and fifty dollars, leaving a balance of only fifty dollars. Id. Or where it is proved that the indorsement was in truth made when it was against the interest of the party who made it. Roseboom v. BiUington, 17 John. Bep. 182. In such case, it will be received to rebut the presumption of payment arising from the lapse of time. Id. So where the party's declarations are a part of the res geslm, they are evidence for him. Smith T. Morrow, 1 Monroe, 234, 236. Thus, though the declarations of a testator of the plaintiffs in general are not evidence for his executors, yet, where he had been administrator of the defend- ant's intestate, n^er having brought in his account, and this omission was urged against him as showing that he knew he had no claim, held, that his declarations that the intestate's estate was indebted to him, might be received to rebut the inference sought to be raised. Scull et al., Adm'rs of Irwin v. Wallace's Ex'rs, on error, 15 Serg. & Rawle, 231, 233. And it was put that a prisoner's conversation may be evidence for him where it is a part of the res gestae. People v. Scott, K y. Gen. Ses., Sept. Term, 1818, Jud. Repos. 50. So, on ». trial for forcible entry and detainer, the question being upon the relator's entry, and the extent and nature of his possession ; he having proved that he was in possession, was allowed to show his own declarations as to its extent, and the person under whom he held. Smith v. Morrow, 1 Monroe, 234, 236. Apd see several other cases to this point, cited in a subsequent note, devoted more particularly to the subject of declarations constituting parts of the res gesice. The question whether, and how far, the introduction of the defendant's confession or declaration in evidence by the plaintiff, et sic e converso, shall make it evidence for the party who made it, has arisen principally upon the confessions of prisoners on trial for crimes. By these cases -and others, the following general doctrine seems to be well established :^A party's declarations are evidence in his favor when introduced by his opponent; though then- truth may be contradicted by contrary declarations of the former, or by other evidence, and the wliole shall go together to the jury, who are not bound to credit the exculpatory confession. Bex v. Jones, 2 Carr. & Payne, 629 ; Rex v. Higgins, 3 Id. 603 ; Rex v. Clewes, 4 Id. 221 ; Rex v. Steptoe, Id. 39'7 ; Smith v. Blandy, Ry. & Mood. N. P. Rep. 257 ; Cray v. Hall, cited Ry. & Mood. N. P. Rep. 258 ; Eemmie 406 Admissions by Pdriies, [CH. vtii. It is obvious, that the evidence wMcTi is the subject of these excep- tions, is liable to many of the objections attaching to hearsay evidence in general. Other objections are of a peculiar nature, especially in the instance of confessions. And in the ihstaiaces in which persons are liable to be affected by the admissions of others, as being identified with themi the principles upon which the exceptions under consideration are founded, lose a considerable part of their effect. Hence, thesa exceptions are sub- jected to certain restrictions and qualifi'cations, — which it is proposed to treat of, First, as they regard the law of admissions, — Secondly, as they regard the law of confessions. The present section treats of admissions ; the following section of con- fessions. It is proposed to treat the subject of admissions in the following order : First, Of general admissions by a party to the suit, or by one for whose benefit the suit is brought. Secondly, Of admissions made under a judge's order. Thirdly, Of admissions made by a general agent of a party to the suit, and Fourthly, Of admissions made by particular agents, such as under- sheriffs, bailiffs, guardians, attorneys, &c. 1. Of general admissions by a party to the suit, or by one for whose benefit the suit is brought. "Whole of admission to be received. On the subject of admissions, it may be laid down as a first principle, that the whole of the statement containing the admission is to be received together.(l) This is necessary, in order to enable the court to judge of the true meaning and extent of the admission, which, when taken entire, will often have a different import from that which a partial account might convey.(2) T. Hall, Mann. Dig. 464, cited, and explained in Smith v. Blandy ; People v. Scott, N. T. Gen. Ses., Sept. Term, 1818, Jud. Eepos. 50, note. The above cases of Rex v. Jones and Rex v. Higgins are stated more at large, post, in the note respecting confessions hj prisoners. A party's declarations are, of course, inquirable into, in order to tost the credit of a ■vrilness ; as, if the witness has stated them in a certain way, then the party may contradict him by showing what in truth he did say at the time, in order to correct or discredit the witness. Conceded in People V. Scott, N. Y. Gen. Sea., Sept. Term, 1818, Jud. Repos. 50. (1) See cases collected in note to Roe d. Pellatt v. Perrars, 2 B. & P. 648 ; Dartmouth (Cojmtess) v. Roberts, 16 East, 334; Barne v. "Whitmore, Bac. Ab. tit. Evidence, 622; B. K. P. 33"?; Salk. 286. (2) By Abbott, 0. J., in Thompson v. Austen, 2 D. t R. 361. See, also, Pletoher v. Froggatt, 2 C. & P. 569. Note 118. — Gray's Ex'rs v. Kernahan, 2 Nott & M'Cord, 60 ; Davis v. Verdrier, 1 M'Cord, 320 ; Grimes v. Smith, 1 Marsh. Kent'y Rep. 205, 206 ; post, notes as to confessions ; Yibbard V. Staatg, 3 Hill, 144; Bennett v. Burch, 1 Denio, 141; Kelsey v. Bush, 2 Hill, 440; Delamater V. Pierce, 3 Denio, 316 ; Dorlou v. Douglass, 6 Barb. 451 ; Stephens v. Vroman, 18 Barb. 250 ; SEC. X.J Whoh Admission to he received. 407 Turner v. Yates, 16 How. U. S. 14; Franklin Bank v. Cooper, 26 Maine, 180 ; Roberts v. Gee, 15 Barb. 449 ; "Wakefield v. Grossman, 25 Vt. 298. The rule that a confession shall be taken together is correctly laid down in the text, with its qualification, that though it shall be received together, yet every part is not always entitled to equal weight. See note 122. The confession intended by the rule comprehends any one entire connected conversation or declaration, oral or written, or both ; but not several distinot declara- tions or conversations at difierent times, though on the same subject (Galbraith v. Green, 13 Serg. & Bawle, 85), and in prosecuting the same negotiation. It is the lime, not the subject or nature of the conversations, that determines their identity. Thus, in a suit by the plaintiff against a town for supporting W. as a pauper, the defendants, to show that "W. was not a pauper, proved that their agents applied to the plaintiff and negotiated with him to deliver them a note, which the plaintiff admitted to belong to W. To rebut this, the plaintiff offered to show that, in pursuance of the previous negotiation and a short time afterwards, he dehvered the note to the agents, declaring it was not W.'s. This was permitted at Nisi Prius ; but on motion for a new trial, held inadmissible. Stewart v. The Inh. of Sherman, 5 Conn. Bep. 244. It has re- peatedly been held that what a party says at one time cannot be used by him to explain what he said at another. Per Golden, Senator, in Murray v. Coster, 4 Coweu's Rep. 630 ; Blight v. Ashley, 1 Pet. C. G. Rep. 15 ; Patton v. Goldsborough, 9 Serg. & Rawle, 55, per Tilghman, C. J.; Martin v. Root, 11 Mass. Rep. 227. Thus in dower, where the defence is that previous to the maiTiage, the lands had been given by the deceased husband to his son, held that the declarations of the deceased that he had not so granted the land, were not admissible to rebut evidence of his declarations that he had, unless they were a part of the same conversation given in evidence. Galbraith v. Green, 13 Serg. k Rawle, 89, 92. Again: on trial of an action of trespass, q. c. £, it becoming material to ascertain whether the lot in question had been drawn as a proprietors' lot, the plaintiff, who claimed it as a drawn lot, read from their records. The defendant offered to read from the same records the proceedings of an adjourned meeting of the same proprietors to explain away the first. Held inadmissible, as not being of a transaction at the same time with that first recorded ; and therefore not coming within the principle that an admission or paper shall be taken together. Pike v. Dyke, 2 Greenl. 213, 216, 217. But in an action for a fraud in the sale of a deceased negro, the defendant, to show the plaintiff considered the negro sound, proved that he wrote a letter and sent it by the negro to C. K., offering him the negro for a sound price. The plaintiff offered to show that the negro had a wife at C. K.'s, and wished to go to him ; and that the plaintiff told a witness, at the time of writing the letter, that he would fix a price which C. K. would not give, wishing to deceive the negro and prevent him from absconding, through fear of being returned to the defendant. Held admissible. Duvall v. Medtart, 4 Har. 4 John. 14. In ejectment, the plaintiff claimed under Smith, against his execu- tors, and gave in evidence his admissions identifying the lot granted to the plaintiffs ancestor. The defendants, to do away those admissions, offered in evidence Smith's subsequent admissions (statements on paper) in explanation. Held inadmissible. Per Tilghman, G. J. : " When a con- fession is given in evidence, the whole is to be taken together ; but a confession made at one time cannot be rebutted by a declaration at another time, because, if that were permitted, a man might destroy his confessions by subsequent declarations to the contrary.'' Patton v. Golds- borough, 9 Serg. & Rawle, 47, 55. So, in ejectment, the defendant claimed that a warrant for the land which was taken in his wife's name (the daughter of H.) was far her use, and proved H.'s acknowledgments that this was so. The plaintiffs offered other conversations of H., assert- ing that the warrant was for his own use. Held inadmissible. M'Pheake v. Hutchinson, 5 Serg. & Rawle, 295, 297. But where a person was examined as to his books (they being absent) be- fore commissioners of bankruptcy, as to his dealings with the bankrupt, and by his consent, the accountant to the commission making extracts from them, held that these extracts could not be used as evidence against him, without also reading bis examination. Tates v. Garnsew, 3 Carr. & Payne, 99. In an action by a woman for a breach of marriage promise, the defendant, to mitigate damages, asked the plaintiff's physician if he, in attending her, had not prescribed for a disease other than pregnancy, who answered he had; and the only knowledge he had of it was from her information ; and here the defendant insisted on stopping. But the plaintiff's counsel were allowed to show that in the same conversations she declared the disease to be the venereal. 408 Admissions by Parties, [CH, viil. which -was communicated to her by the defendant himself. "Withers v. Eichardson, 5 Mon- roe, 94, 95. The rule that confessions or declarations shall be taken together is confined to them as such and not where they are themselves the very grievance complained of. Thus, in an action for a libel or slander, the defendant's declaration of its truth at the time is not evidence ; for so no action would lie for a libel or slander, without, in the first place, showing the falsity ; whereas, it lies with the defendant, if he would justify, to show the truth. Rice v. Withers, 9 Wend. 138. Where, taking the confession together, the branch making against the party is completely avoided, qualified or explained away by another branch, and there is nothing beside, either intrinsic or extrinsic the latter branch to render it questionable, the first is neutralized ; and the whole is considered by the cases as not weighing a fealher against the party. Thus, in assumpsit for goods sold, the defendant's confession that he had bought the goods, but paid for them, is nbt sufficient to entitle the plaintiff to recover. Smith v. Jones, 15 John. Rep. 229. So, where the defendant admitted he had received goods, but accounted for them, held the whole should be taken together. Benedict, Adm'r v. Nichols, 1 Root, 434. So, " I have received a dollar; but it was my due." Carver v. Tracy, 3 John. Rep. 42'7. " Tou did services for me ; but I did not employ you, and am under age" (WaUiug v. ToU, 9 Id. 141) ; so " I want to sell the horses, for I have offered them to !P., who refused them ;" the latter being material to do away the effect of a simple offer to sell (Fenner v. Lewis, 10 Id. 38) ; so "I killed your dog ; but it was because he assaulted me in the night in the highway" (Credit v. Brown, Id. 365) ; so, on a question of non- joinder of plaintiffs, " I and H. gave our note ; but he signed as surety, and we were not jointly interested in the subject of the suit." Hopkins v. Smith, 11 Id. 161. The defendants pointed out twenty-five small hogsheads, less than the usual size, and delivered a bill of these to the plaintiffs as a performance of a contract before made, to deliver hogsheads of the common size ; but which previous contract was void by the Statute of Frauds. The plaintiffs accepted those of the small size, which made a valid contract ; and then would have used the whole transaction as evidence to show a previous contract to dehver those of the common size. But, per Cw : "It is not competent, in our opinion, for the plaintiffs to accept this acknowledgment of the defend- ants, by a specification of twenty -five hogsheads ready for the plaintiffs, as the performance of the bargain acknowledged on their part ; and then to use this evidence as the means o{ proving an- other and different contract. Where you rely upon a confession, you must take it all together ; and the rule is peculiarly necessary to be observed where the confession is in a form of evidence essential to the establishment of the contract to be proved, as in this case. WhitweU v. Wyer, 11 Mass. Rep. 6, 16. The defendant admitted his contract with the plaintiff's intestate, but said it was in writing (a specialty). The action being assumpsit, it was correctly put to the jury, that if they believed the latter part of the confession, they must find for the defendant, for assumpsit would not lie. HoUey's Adm'r v. Christopher, 3 Monroe, 16. In assumpsit for the freight of certain tobacco shipped by the defendants in the plaintiffs' vessel, which tobacco the defendants purchased of S. C, to show the quantity, the plaintiffs proved that T., one of the defendants, said they had forty hogsheads of S. C, which were shipped in the plaintiffs' vessel. The defendants offered to show that T. said, at the same time, that the tobacco was damaged in the transportation. This being overruled, the judgment was for that reason reversed on appeal. Turner v. Jenkins, 1 Harr. & Gill, 161. In assumpsit, where the plaintiff relies on the defendant's aclmowledgment to take his case out of the Statute of Limitations, as if the defendant use words implying that the debt is due, but say he don't consider himself indebted because the plaintiff was negligent in not coUeeting certain securities, and ought not to look to him, the whole must be taken together, and the plaintiff cannot disprove any part, as that the debt is duo because there was no neglect, &c. Oliver v. Gray, 1 Har. k Gill, 204, 219, 220. See also pos<, notes. The rule applies to written as well as oral admissions ; a very common Ulustratiou of which is found in the accounts of the party. These being used as evidence against him, are also evidence for him. Jones v. Jones, 4 Hen. & Munf. 447. Thus, where on a bill filed by one partner against the administrators of another for discovery and account, a balance was allowed against the intestate on credits taken from his books, without allowing the debits on the same books, for this reason and others, the decree was reveraed ; and the reversal sustained in the Court of Appeals, who say both sides, credit and debit, should have been taken together. Waggoner v. Gray's Adm'rs, 2 Hen. & Munf. 603. Again : in assumpsit, the plaintiff had, before suit, delivered a SEC. X.] Written Admissions.'^ 409 large account, but on the trial proved only one item, £230. The defendant selected one item of credit in the same account exceeding the £230, relying on it as an admission. The jury, under the direction of the court, that by relying on the credit side the defendant must be holden to admit all the debit side, found for the plaintiff; and, on motion for a new trial, the court held that a defendant, being called on to render an account in order to sustain a plaintiff's demand, ■which the latter is obliged to rely on in order to charge the former, is entitled to be discharged by it. They said, if a defendant is called on to state whether a particular sum of money be due, and he state it was to be paid on a condition not performed, you must take the acknowledgment all together. An account is composed of items, and they are placed on the debit and credit side. If the defendant produce the account, you can no more take the items on the credit side to charge him, and reject the debits, than, in the case supposed, you can take the acknowledgment of what was agreed to be paid, and reject what he states with respect to the condition. New trial denied. Morris T. Hurst, 1 "Wash. C. 0. Rep. 433. Again : in assumpsit, the defendants produced an account, in the handwriting of one of the plaintiffs, crediting the defendants with $663.3'?, Decem- ber, 1817. This was introduced to show a claim of so much in their favor. But the same account contained a charge against them, under date of February, 181'?, of a balance of $4,405.20, in the plaintiffs' favor. Held, that the whole must be taken together ; and so was evidence in favor of the plaintiffs. But it was said the defendants might, notwithstanding, impeach the account, so far as it was in favor of the plauitiffs. But they did not do it. "Walden v. Sherburne, 15 John. Rep. 409, 413, 424 ; Turner v. Chad, 1 Dev. 134, S. P., per Taylor, Ch. J. Again: in an action on an open account current, originating in New York, for cash lent, stock sold, and the balance of an interest account upon the items, the defendant reUed on this ac- count to show his credits, and the jury found for the plaintiff's with the interest, though an offer by the plaintiffs to prove that interest was allowable in New York on such an account, had been overruled by the court, on the defendant's objection. The defendant appealed ; but the judg- ment was affirmed on the ground that, as the defendant relied on a document produced by the plaintiffs, it must be taken all together ; and that would warrant the allowance of interest, ^ake- man v. Marquand et al., 5 Mart. Lou. Rep. (N. S.) 265, 272. " The books of merchants cannot be given in evidence in their favor ; they are good evidence against them ; but if used as evi- dence, the whole must be taken together." Civil Code of Louisiana, -2244. The rule was ap- pUed very liberally to a sheriff's return, that he had levied of the defendant's goods and chattels $52.03 ; but paid for rent due from the defendant to M. N., and costs demanded by her attorney, $23.3'? 1-2 ; and that $6.40 had been recovered of him by D. & H., on account of selling the goods. In a suit by the plaintiff in the execution against the sheriffs administrators for the money, he relied on the return ; and it was held, that the sheriff was protected by the matter in avoidance ; and the balance only should be recovered. Griffith v. Ketchum's Adm'rs, 12 John. 379. So in ejectment, a writing introduced by the lessor of the plaintiffl signed by the defend- ant, admitting the title of the lessor, but stating that the defendant had been in possession seven years under color of title (the North Carolina limitation), being introduced by the plaintiff, was held evidence for the defendant of title by an adverse possession ; but the court said it would have been otherwise if the admission had been made before the limitation had completed run- ning ; for then it would have destroyed the character of the adverse possession ; but here it as- serted a title. Doe ex dem. The Trustees of the University of North Carolina v. Roe, 2 Hawks, 3 '70. An admission of the plaintiff's account hy the defendant, at the same time producing and claiming one of equal amount against the plaintiff, must be taken together ; and is, therefore, per se, no admission of the plaintiff's claim, even to take it out of the Statute of Limitations. Jacobs V. Farrall, 2 Hawks, 570. A writing admitting the survivorship of the wife, and that she is stUl alive, but asserting that she has released her dower, being used to prove the former, held, that it must also be taken to disprove her right of dower. Shaller v. Brand, 6 Binn. 435, 438. The defendant offered to prove an extract from the plaintiff's letter, the original being lost. The court would not permit this, saying the whole letter must be given in evidence, though the wit- ness would swear that the extract contained everything pertinent. Dennis v. Barber, 6 Serg. & Rawle, 420, 425, 426. The plaintiffs sued on biUs of exchange drawn on them by the defend- ant, and paid for his account. The defendant interposed a defence of payment; and to show this, relied on the books of the plaintiffs (produced under a notice), crediting him with various sums received ; but there were also in the same books counterrailing charges, debits of money 410 Admissions hy Parties, [CH. Vlil. The same principle applies to statements in writing ; if a portion of the Statement is used against a party as an admission, the counsel for the party inay insist on having the whole read. If a part of an answer in chan- cery is read in evidence, the other party is entitled to have the whole read ;(1) and if, on exceptions taken, a second answer has been put in, the paid, -which, ho-tTSVer, the plaintilTs ccrald not claim under their declaration, as this went upon the bills specially, and contained no count for money paid. The defendant, therefore, claimed the credits in his favor ; and contended that the debits could not be allowed to affect him. "Washington, J., said : " The ptinoiple of law is, that if the defendant is not prepared to prove credits, but relies for their proof on the plaintiff's account, the plaintiff can call on him to admil^ prima facie, the debits ; but it is competent to the defendant to show, by evidence, that the debits were not properly made. In this action the plaintiffs cannot recover on the debits, but only on the bills." But he allowed that the credits might be considered as payment applied to the debits, within the rule that payments may be applied by the creditor, if not directed by the debtor at the time ; and so far the credits be rendered unavailable to the defendant Bell et al. v. Davidson, 3 Wash. 0. 0. Bep. 328. The cases are by no means uniform upon the extent to which one's book becomes evidence for •him^tvhen introduced by the opposite patty, some of them taking the whole of the countervailing debits, or Statfeinents in other parts of the books, and others narrowing the evidence down to th« Single charge. In one case, the defendant claimed the benefit of a credit often cords of wood at $S.eO, given in the plaintiff's testator's day-book; and held, that he could not have this benefit without all the charges in the handwriting of the testator against the defendant contained in the Same day-book, also -gotiig to the jury as evidence to prove the charges, though at other times than the date of the credit. King v. Maddux's Bx'r, 1 Har. & John. 46V. In another case, in am -action cif a'asutopsit, commenced in May, 1812, for work and labor, the defendant produced his ■day-book on notice, by which the labor was credited to the plaintiff, on different pages, before 'Suit brought. The defendant then insisted on reading an entry on a different page of the same book, made in Noveffltber of the same year, 1812. (But this was disallowed, on the ground that the entry was after suit brought ; though the court admitted that ordiuarily any entry might be read by a defendant under these circumstances necessarily connected with those -used by the ■plaintiff, which his book contained at the time when the suit was brought. "Withers v. GUlespy, 1 Serg. & 'Rawle, 10. Otherwise, it 'seems, if the plaintiff merely inspects the books, without ■Bsing them in evidence. Id. In another case, where the plaintiff read an entry from the defend- "aiit's day-book, the latter then insisted on reading other entries from the same book, in other ^arts, and not connected with the one read. Held inadmissible, though Abbott, Oh. J., said he Was entitled to have the whole of the particular entry read. Oatt v. Ho-ward, 3 Stark Rep. 3. And see Piles v. Dyke, Sttjim, cited iVom 2 Greenl. 213, 216, 2 IT. "We have seen in Withers v. G-iUBSpy {swpra), that charges made aitor suit brought 'shall not be teceived. It has also been held, that where cue party is bound in duty to furnish an account, 'the credits may be used against him without regard to the debits. Thus, where a partner caUed on to account, did so, but made a eountervaihng charge in the account, of $250, as stock brought into the partnership by him, held 'that this was properly rejected, there being no proof beside the 'tiecount. Smith v. Harrathy, 5 Mart. 'Lou. Rep. (N. S.) 319. So where the administrator of an executor being otdered by ohanoer'y to account with legatees, produced the account-books of his 'Intestate, and insisted that the whole should bo taken together, debits as well as credits ; and the '"eotnmissioner'tobk the account on this principle, Reporting a balance in his favor, which was con- firmed on appeal. This was disallowed on further appeal, and the court said the rule that where 'ti party relies onan acBoutit furnished by his adversaiy, he is bound to take the whole together, does not apply to an account furnished by an executor or other trustee. They are bound to furnish 'the cestui que imst, with the moans of charging them ; and must discharge themselves by 'Vouchers, or means independent of the account itself. Robertson v. Archer, Adm'r, 5 Rand. 319. '(1) Bjr Holt, 0. Jv, in Lynch 'v. Clarke, 3 Salk. 153; Bath (Earl) v. Batteraea, 5 Mod. 9 ; GUb. sfic. X.} Documents referred to. 411 defendant may insist on having that alsb read, to explain \i^t-hat he swore in his first answer.(l) If a defendant makeS out a written statement of "what he considers to be the plaintiff's claim upon him, and on the same paper draws out a counter claim on his own part ; if the plaintiff seeks to make use of the statement as evidence against the defendant, the latter is entitled to have the counter claim also laid before the jury .(2) But although the whole of the document should be laid before the jury, it will be presently seen, that it by no means follows, that they are bound to give the same degree of weight to every portion of it.(3) Doculn'ehts referred to. If a person, in making an admission against his own interest, refers to a written paper, without which the admission is not complete, the con^ tents of the paper ought to be shown, before the statement can be used as evidence against the party.(4) Thus, where k letter, written by the de- fendant, was put in by the pla.intiff, it was held, that the defendant had k right to have read what had been written on the back by the plaintiff.(5) Bv. 4^. the wliole of a recital in a deed must be taten tog^tlier. i Ventr. I'll ; 1 Coin. !Dig. tit. Evidence, b. 5. (1) E. V. Carr, 1 SiiJ. 418; i. N. P. 23f ; Gilb. Et. 50. (2) Randle v. Blackbiim, 5 Taunt. 245. (3) Note 119. — It was offered by the plaintiff to prove that, after he commenced his suit, the defendant admitted he was tenant of A. This was objected to on the general principle that evidence of anything that happens after the suit is not admissible. But, per M'Eean, Ch. X : "I recollect but one case in the books upon this point; and that is, that an acknowledgment of a debt after suit, takes it out of the Statute of Limitations. Let the witness proceed." The reply of the plaintiff's counsel waa, that the acknowledgiiient proposed was of a fact existing previous to the suit. Morris's Lessee v. Vanderen, 1 Ball. 6i, te5. And see GOsling v. Birnie, 1 Mood. & Malk. '631. The defendant on being arrested, expressed his surprise ttiat the plaintiffs debt had not been paid before by P., and promised to meet the plaintiff and settle the claim if he would give him time. Held sufScient to take the case out of the Statuteof Limitations. Sluby T. Champlin, 4 John. Rep. 461. In assumpsit on an account stated, the plaintiff acknowl- edged, after suit brought, that he had reviewed his accounts with 'the defendant, to wtidm a balance was found due, for which he gave a note. Held admissible evidence ; and that the note was admissible. This was not evidence of a set-off; biit proof of an admission, and acts show- ing that nothing was ever due to the plaintiff. Marshall v. Sheridan, 10 Serg. & Eawle, 2'68. (Statements made by a party after suit brought, or post litem moiam, are received with great caution. Wetmore v. Mell, 1 Ohio State E. 26 ; Cole v. Cole, 33 Maine, ^l'6. And there is a wide distinction between an admission of a fact and an admissioh made imder a misapprehension of its extent. The admission is admissible as proof of the truth, and not on the ground that it concludes or estops the party making it. "Wakefield v. Grossman, 25 "V't. 298. Hence he may give testimony explaining it, or showing that the admission was not true. Pecker v. Hoit, 15 N. Hamp. 143 ; DufBold v. Cross, 12 111. 397 ; Stephens v. "Vrom'an, 18 Barb. 250.) (4) See by Lord Kenyon, C. J., in Jacob v. Lindsay, 1 Bast, 462. By Xord EllenhoroUgh, '6. J., in Smith v. Toung, 1 Campb. 439. See, also, Talconer v. Hanson (1 Camph. Ill), whei'e a log-book was referred to in a deposition of a witness examined upon interrogatories. (5) Dagleish v. Dodd, 5 0. & P. 238. See, also, Eiohards v. Tr&nkum" (9 C. & P. 221), as to an indorsement upon a promissory note. Note 120. — The ifollowing cases should be compared with what is laid down in the text: 412 Admissions by Parties, [CH. Vlli. The same rule applies to an interrogatory referring to a letter ; so that if the party producing the interrogatories refuse to produce the letter, he must abandon the whole of the interrogatories, and not merely that one -which refers to the letter.(l) Where commissioners in bankruptcy send for a party, and compel him to produce documents and answer questions, it has been ruled that secondary evidence of the documents cannot be given, without proof of the examination which accompanied their pro- duction. (2) that where a confession refers to a written paper, such confession is not complete, and cannot be received without proof of the paper. In the first, it was held that the declaration of the party- referring to books, adopted and made them evidence against him, as a part of the confession. The action was on notes against A. and others, to fix them as partners, and the plaintiff proved A.'s declaration denying that he was a partner, in respect to the notes in question ; but saying he had at one time been interested, and received a dividend in 1815, when his interest ceased ; that the dividend was entered in the books on that day. The plaintiff then offered the books. Held admissible, and that A. had made them a part of his confession. The court said that the part of the declaration denying himself to be a partner might be disbelieved by the jury on testi- mony aiiunde. Beside, the book might show a connection of such a nature that, if the plaintiffs had no notice of the dissolution, A. might still be liable. Thommon v. Kalbach, 12 Serg. & Rawle, 238 to 240. In the foUowing case the principle in the text was held to mean that the confession must, in the first instance and on its face, show the reference to be to a writing ; if not, the party cannot himself explain the reference to mean a writing, and then call for its production. The plaintiff, claiming premises under M., showed the defendant's confession that he held under M. by lease, and rested. The defendant proved that the lease was in writing, and then insisted that the plaintiff should produce it, in order to show that it had expired. Held, that this lay with the defendant ; and this not being done, it should be intended from the omission that it had expired. Jackson ex dem. WithereU v. Jones, 9 Cowen's Rep. 182. A confession was in one case thus allowed to be connected with a writing by a very loose and remote implication, to explain the equivocal word gift as used in a confession. Thus, in detinue for negroes, the plaintiff proved that the defendant said he had given them to the plaintiff's wife, who was the defendant's daughter. The court allowed the defendant to show that he had made his will (whereby he had given them to his daughter) on the very day when the declaration was made, in order to explain what was meant by giving the negroes. Morisey v. Bunting, 1 Devereux, 3. In one case at Nisi Prius, it was held that where a party referred to a writ in his confession, by which he partially did away its effect against hun, he was yet put to strict proof of the writ. This was in Grey v. Smith and another. Sheriff, 1 Campb. Rep. 387. The plaintiff, to charge the defendants with taking goods, gave in evidence a warrant executed by one of the defendants, the sheriff, to his bailiff, as an admission that the bailiff acted as his agant. The same warrant recited the writ, and the defendants claimed that the whole admission must be taken together, and the writ therefore as proved. But Lord Ellenborougli denied this, and said the defendants must prove the writ as a part of their justification ; and this although it was contended that the writ itself should be produced by the plaintiff. But the contrary has been holden, and that, even in ialse imprisonment, proof of the defendant's admission that the plaintiff was arrested and handcuffed by his order, but he had a warrant for this, must bo taken together ; and thus would justify him. Rogers v. Wilson, 1 Alab. 40'?, 409. And see Shaller v. Brand, 6 Binn. 435, 438 I Dennis v. Barber, Id. ; Griffith v. Ketchum's Adm'rs, Id. ; Bristol v. Warner, 19 Conn. 1 ; Knight v. New England Worsted Co., 2 Gush. 271; Mims v. Sturtevant, 18 Ala. (N. S.) 359. (1) Wheeler v. Atkins, 5 Esp. 246. (2) Holland v. Reeves, 7 0. 4; P. 36. See, also, Tates v. Carnsew, 2 C. & P. 99. NoiB 121. — The proof of an admission by letter, is by proving the letter itself the same as SEC. X.] Documents referred to. 413 If a letter refers to other letters or papers inclosed, and refers to them in such a way, that it is necessary to incorporate them with the body of the letter, in order to make it intelligible, or to complete the sense, the. inclosnres must be read with the letter. But independent papers merely inclosed in a letter and not referred to by it, are not thereby rendered admissible together with the letter.(l) And where documents are adduced in evidence, which are referred to in an examination or answer, but are entirely independent and unconnected therewith, this does not render it necessary to put the examination or answer also in evidence. Thus, in the case of Long v. Champion, (2) on a trial of an action at law, a copy of a letter written by the plaintiif 's agent, and referred to by the plaintiff in his answer to a bill jji chancery, and the original of which letter, instead of being filed in the master's office. Lad, by consent of parties, been deposited for inspection with the plaintiff's clerk in' court in the chancery suit, was held to be admissible evidence on the part of the defendant at law, without reading the answer in chancery. Lord Tenterden, C. J., in giving the judgment of the court, observed : " Whether it is necessary in every instance to read an answer in chancery, for the purpose of making any documents evidence which may be annexed to it, we do not now decide. I should at present think it a very strong proposition to say that the answer must at all events be read, though having no connection with the case in which the documents are produced. But here, at least, we think the copy in question was ad.missi- ble without the answer." But where a bill of discovery had been filed by A. against B., upon any other instrument in writing. Thus, the defendants in answer to an action against them for transporting whiskey, produced a letter to them from one of the plaintiffs, admitting that they had converted a part of the whiskey while on the road to their own use. The body of the letter waa written by one of the defendants himself, but he proved that the subscription was in the plaintiff's handwriting. The court below rejected the letter, because there was no subscribing witness ; and it was not shown that the plaintiff had heard the letter read or the contents explained. But this was holden erroneous. The court above said a letter must be proved like any paper contract. The proof of signature was enough in the first instance. If there was fraud or mistake, it lies with the signer then to correct it. Holmes et al. v. KetUnger, 4 Teates, 532. On the trial, the defendant, to show an admission of the plaintiff, offered to prove the extract of a letter from the plaintiff. The original letter was shown to be lost ; and the witness would swear that it waa the only part of the letter relating to the matter in controversy. The plain- tiff was a merchant, and the matter in dispute was a mercantile transaction. The court said the plaintiff being a merchant should be presumed to keep a letter-book ; and due notice should have been given to him to produce it. That would have been the next best evidence. The notice for that purpose being short, oral evidence could not be given ; and an extract of a letter cannot be received. The whole must be regularly proved, or no part is evidence. Dennis v. Barber, 6 Serg. & Eawle, 420, 425, 426. An account-book contaming entries by A. & B., may go to the jury as evidence of their being partners. Champlin, Ex'r v. Tilley, S Day, 303, 307. (1) By Lord Kenyon, C. J., in Johnson v. Gilaon, 4 Bsp. 21. (2) 2 B. & Ad. 284 See, also, Sturge v. Buchanan, 10 A. & E. 605. 41L4: Adn^issions hy Parties, [CH. yiil. whicli tliere had been a decree and order that B. should bring into court all letters written by A. respecting a certain debt, it was held that these letters could not be read in an action at law brought by B. against the sheriff for a false return to a fi. fa. against the goods of A. without first putting in the bill and answer ;(1) for, it was said, the answer might contain such a contradiction or explanation of parts of the letters, as might wholly neutralize their effect. Limits to the general rule. It is proposed no-w to consider what limits have been imposed on the reception of a party's statement iu his own favor, upon the ground of its accompanying an admission made against his iaterest. It has been decided, that although a defendant is entitled to have the whole of a particular entry in a book read, where part of it is used against him, yet he cannot insist upon reading distinct entries in different, parts of the book.(2) Thus, where the plaintiff gave the defendant notice to pro- duce a letter-book, containing' copies of certain specified letters, which was produced accordingly ; it was held that the defendant had no right to read, in his own behalf, other letters upon the same subject, copied in the same book, but not referred to in those read by the plaintiff.(3) Lord Denman, C. J., in giving the judgment of the court in this case, remarked, that the book contained " a series of copies of letters written from time to time — in principle exactly the same thing as if they had been kept in a counting- house on a file. That the rest of the correspondence may throw light upon these parts of it, is true ; but the light may be a false one. The plaintiff is not bound to know whether it would or not ; nor whether any other statements were made as they appear in the book, or, if made, were true."(4) Upon the same principle, where attempts have been made to put in evidence bundles of proceedings in bankruptcy, or all the entries in corporation books, merely because one paper or entry has been read by the opposite party, they have always been rejected.(5) ponversationg. The same principle applies to admissions made in conversation ; although (1) Hewitt V. Piggot, 5 C. & p. IS, 11. See, also, Ludlow (Mayor) v. Charlton, 9 C. & P. 242. And see Temjierley v. Soott (5 C. & P. 341), as to reading crosa-interrogatoriea which are part of a case. (2) Catt V. Howard, 3 Stark. E. 5. (3) Sturge v. Buchanan, 10 A. & B. 598. (4) Id. 605. (5) Id. 601. The books of a bank are not evidence in its favor, or m favor of its receiver, in a suit brought to recover a balance due on account. White v. imbler, 4 Seld. IIO. The person who made the entries should be called (Monroe f. Culyer, 2 Hill, 535); unless ho be dead or insane. Brewster v. Doano, Id. 551 ; Union Bank v. Knapp, 3 Pick. SI. The pass-book is evidence against the bank. Jermain v. Denniston, 2 geld. 216, SEC. X.] Conversations. 415 it was at one time laid down, and by very high authority, that if part of a conversation was given in evidence against a party as an admission, he was entitled to have the whole conversation repeated. In The Queen's Case,(l) Abbott, C. J., in delivering the opinion of the majority of the judges, that if a witness was asked in crossexaminatiou as to some state- ment made by him in a conversation with a third party, he could not be re-examined as to the whole of that conversation, took occasion to remark : "I distinguish between a conversation which a witness may have had with a party to the suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit, relative to the subject matter of the suit, are, in themselves, evidence against him in the suit, and if a counsel chooses to ask a witness as to any- thing whicli may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by him in the same conversation, not only so much as may explain or qualify the matter introduced upon the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only that it relate to the subject matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion." This doctrine' was much discussed in the Court of Queen's Bench, in the case of Prince v. Samo.(2) That was an action for malicious arrest, on a false suggestion that money was lent by the defendant to the plaintiff, when, in fact, it had been given. The plaintiff called his attorney as a witness, who happened to have been present at the trial of a prosecution for perjury, instituted by the plaintiff against a witness in the action wherein he had been arrested. The defendant's counsel inquired of him, in cross-examination, whether the plaintiff had not, on the trial for per- jury, stated, that he himself had been insolvent repeatedly and remanded by the court. This question was not objected to. On his re-examination the same witness was asked, whether the plaintiff had not also on that occasion, given an account of the circumstances out of which the arrest had arisen ; and what that account was, for the purpose of laying before the jury proof that the arrest was without cause and malicious. This question, expressly confined to that purpose, was, whether the plaintiff did not say, in the course of his examination, that the money was given, and not lent? To this question the defendant's counsel objected, upon the ground that the circumstance of the defendant having proved one de- tached expression that fell from the plaintiff when a witness, did not make the whole of what he then said evidence in his favor. Lord Denman, (1) 2 B. & B. 297, 298. (2) 7 A. & E. 627.^ 416 Admissions hy Parties, [CH. Vlll. C. J., at the trial was of opinion, tliat tlie witness might be asked as to everything said by the plaintiff, when he appeared on the trial of the in- dictment, that could in any way qualify or explain the statement as to which he had been cross-examined ; but that he had no right to add any independent history of transactions wholly unconnected with it. The court afterwards held that the lipe had been correctly drawn by his Lord- ship at the trial. In this case, the dictum of Abbott, C. J., in The Queen's Case, just re- ferred to, was cited, and Lord Denham, C. J., in giving the judgment of the court, observed, with regard to that dictum : " We forbear from entering into a detailed examination of the doctrine there laid down. We have considered it repeatedly with all the dif&dence inspired by such an author- ity, but we cannot assent to it. We will merely observe, that it was not introduced as an answer to any question proposed by the House of Lords,(l) and may, therefore, be strictly regarded as extra-judicial ; that it was not necessary, as a reason for the answer to the question that was pro- posed ; that it was not in terms adopted by Lord Eldon, C, or any other of the judges who concurred ; that it was expressly denied by Lords Ee- desdale and Wynford ; and that it does not rest on any previous author- ity. We ought to add that, in our opinion, the reason of the thing would irather go to exclude the statements of a party making declarations which cannot be disinterested."(2) Upon a review, therefore, of the authorities, the correct rule seems to be as follows : That where a statement, forming part of a conversation, is given in evidence, whatever was said by the same person in the sq,me con- versation, that would in any way qualify or explain that statement, is also admissible ; but detached and independent statements, in no way connected with the statement given in evidence, are not admissible, and that there is no difference in this respect between statements made in conversation by a party to the suit, and those made by a third party. Oorreapondence by letters. It was held in one case, that letters written by a party are evidence against him without producing copies of those to which such are an- swers; (3) as the adverse party may himself produce the original letters to which those put in are answers^if he thinks them necessary to explain the transaction. (4) But in a late case, where it was proposed on the part of the plaintiff to give in evidence a letter written by the defendant's attor- ney, which purported to be an answer to a letter written to him by the plaintiff's attorney. Pollock, C. B., ruled, that if the plaintiff's counsel put (1) The question had reference to the re-examination of a witness for the purpose of letting in the whole of what he himself had stated in a conversation. See 2 B. & B. 294, 296, and supra. (2) 7 A. & B. 634 (3) Lord Barry more v. Taylor, 1 Bep. 326. (4) By Lord Kenyon, C. J., Id. SEC. X.] Correspondence. 417 in tlie first-mentioned letter, he ought also to call for and put in the one to ■which it was an answer, and not leave it to the defendant to put in the letter of plaintiff's attorney as his evidence.(l) A defendant, who puts in evidence a correspondence, consisting of several letters between himself and the plaintiff, has a right to give in evidence one written by him to the plaintiff in reply to the plaintiff's last letter, as forming part of the correspondence.(2) Writ containing return. Where, in an action against the sheriff for an escape, (3) a copy of the writ is given in evidence by the plaintiff, and the document contains also a copy of the sheriff's return, the defendant is not entitled to have the copy of the return read as part of the document, as the writ is perfectly distinct from the return. Other parts of judicial proceedingg. When an answer in chancery is offered in evidence, as an admission of party upon oath, or for the purpose of contradicting a witness, the interrog- atory part of the bill must also be read ; and if the party against whom the answer is produced insists upon it, the narrative part of the bill also must be read.(4) Where the whole of admissions are received, it often happens that they contain statements favorable to the party against whom the admissions are used, and in many instances they are found to contain hearsay evidence of facts. The principal ground for receiving the whole admission appears to be, that, by comparison of the several parts with each other, the true meaning and extent of the admission may be more clearly understood. On this ground, there does not appear to be any sufficient reason why those parts of the admission, in favor of the party, should be applied to any other purpose by the jury than that of explaining the parts used against him. But although the principal ground upon which admissions are received in evidence is, because it may be presumed that a person would not speak or make a statement, if not true, against his own interest, and though the reason for receiving the whole admission is only for the purpose of ascer- taining whether the person has in fact spoken against his own interest, and, if so, to what extent, and with what qualifications: yet, it may be collected from authorities, that the effect of receiving the whole admission amounts to something more. The using in evidence of an admission of (1) "Watson v. Moor^, 1 0. & Kir. 626. (2) Boe V. Day, V 0. & P. '705. (3) Adey t; Bridges, 2 Stark. B. 189. (4) Pennell v. Meyer, 2 Moo. & E. 98 ; S. C, 8 0. & P. 470. In general, an answer to a ques- tion cannot be read without showing the question to which it relates^ 5. v. Pioton, 30 How. St. Tr. 466. YOL. I. 27 418 Admissions hy Parties, [CH. VIII. tlie adverse party, seems to have been considered a waiver of any objection to bis testimony as to all matters contained in it. The presumption or probability that those portions of a party's statement which are against his interest are true, is supposed to give credit to other parts of the same statement, with respect to which there is no such presumption, but per- haps a contrary presumption. A statement, therefore, received for -the purpose of proving facts therein stated by him against his interest, is not to be excluded with respect to other facts stated which are in his favor.(l) It is, however, to be understood, that the several parts of a statement are not necessarily entitled to equal credit ; the jury may believe one, and reject the other.(2) (1) See Beckham v. Osborne, 6 M. & G. VTl. (2) See by Lord Mansfield, 0. J., in Berman v. Woodbridge, 2 Doug. 788. See, also, E. v. Clewes, 4 C. & P. 221. Note 122. — ^We intimated, in the introduction to note 118, that every part of the confession ia not always entitled to equal weight. This wiU be found fully illustrated in the cases which we now proceed to state, and still more strikingly when we come to speak of confessions in criminal oases, post, notes. The jury are not always bound to give implicit faith to the whole or any part of the confession (Smith v. Hunt, 1 M'Cord, 449, and the cases there cited) ; and said it may be weighed by the character, interest and appearance of the party confessing. Id. And where the party, to substantiate a credit in his favor, produces an account made out by the opposite party, though he renders it evidence in the first instance to prove the debits against himself in the same account, yet this is not conclusive, and he will stUl be at liberty to disprove the debits (Walden V. Sherburne, 15 John. Eep. 409 ; Turner v. ChUd, 1 Dev. 134, S. P.); or impeach them by show- ing them erroneous on their face. Jones v. Jones, 4 Hen. & Munf 447. And where, in an ac- tion for the price of one-half of a steamboat sold, the defendant admitted he purchased, but said he had paid for it, the plaintiff was allowed to disprove the latter branch of the ponfession by circumstances ; and the jury thinking it was overcome, the court refused to disturb the verdict. And per Cur. : "Confessions must be taken together; but when extra-judicial, as in this case, the weight of evidence, by which they may be rebutted, depends on all the circumstances of the case, as disclosed by testimony." Quick v. Johnson, 6 Mart. Lou. Eep. (N. S.) 532, 633. And see Thommon v. Kalbach, 12 Serg. & Eawle, 238, 240. So, where the evidence in as- simapsit for money lent, was that the defendant said, "I borrowed the money, but I paid it;" it was put to the jury that the confession must be received all together; but they were not bound to credit the assertion of payment; and they found for the plaintilT, owing to some slight evidence which tended to repel the assertion of payment. Newman v. Bradley, 1 Dall- 240. In an action for wages, as mate of a vessel against the master, the latter said he was cap- tain, but never engaged the ^plaintiff, who was employed by the owner. Shippen, president, told the jury they must take the whole together, unless the part in his favor was inconsistent or im- probable. The defendant had a right to choose his mate, though employed by the owner ; and the mate had a three-fold remedy ; one against the master, the same as a common sailor had ; and gave the opinion of the court, that if the plaintiff served with the defendant's permission, he was Uable. Verdict for plaintiff. Farrel v. M'Clea, Id. 382. In assumpsit, the plaintiff proved that he presented his account to the defendant, who said, " It is just, but I paid it by a man in Peters- burgh; and had I tune, I could prove it." Per Cur.: "The rule is, that a confession shall be taken all together; but if there are circumstances mentioned in the confession, which when exam, ined into, disprove the matter alleged in discharge, or where that matter can be disproved, the jury are to reject it, and go upon the otlier part of the confession only ; as where he says the account is just, but I paid it before such persons ; and they know nothing of the payment ; or at Buoh time and place, and it be proved that at that time he was not at the place, but at another far distant ; or if he says the account is just, hut I wUl prove it paid if I have time ; and he is SEC. X.] Favorable parts of Admission. 419 In Smitli V. Blandy,(l) in an action for goods sold and delivered, one of the plaintiff's witnesses stated, upon cross-examination, he had heard the plaintiff say, that the goods were sold under a written contract, which the plaintiff at the time showed the witness : a broker's note was then pro- duced by the plaintiff's counsel, which the witness said was the paper spoken of. It was objected, that the broker's note ought not to be received as evidence of the contract, unless the broker was called to prove it. But allowed that time, and called upon to make that proof, and does not ; in such and the like cases, the matter in discharge will be rejected." Yerdict for plaintiff. Barnes, Bx'r of Kay v. Kelley, 2 Haywood, 45. In staling an account, the creditor charged {mter alia) $150 for a wagon, which was the only item proved, and made the balance due to him $84, after giving several credits. He, at the time of stating the account, admitted that the wagon had been paid for, which, if he had not been allowed his other charges, would have made a balance the other way. The jury considered the written statement and confession all together, and discredited the latter, allowmg the balance as struck. Held well. The court said the jury must judge what credit is due to any part of a statement, written or oral. Turner v. Child, 1 Dev. 133, 134. The defendant con- fessed he had committed a homicide by shooting at the vital parts of a negro, declaring at the time he intended to hit his legs ; but other proof showed him within ten feet of the negro when he shot, so that he might have hit his legs if he had chosen. In trespass by the owner of the negro, held, that the jury might reject the latter part of the confession and act on the first. Arthur v. Wells, 2 Eep. Const. Court S. C. 314. On a reference to take an account, the defendant claimed to have allowed to him credits for large disbursements contained in an account produced against him by his adversary. But the ac- count did not say to whom nor for what the payments were made, nor did it give particulars of time ; several items were discredited, and one had been allowed in another and distinct account. Chan- cellor Kent, on hearing exceptions to the master's report, said: " There is no doubt of the general rule, that when one party exhibits a paper in proof to charge his opponent, his opponent is en- titled to use it in his discharge. But it does not foUow that each part is entitled to the same credit. The charge may be so clear and specific as to be conclusive, while the discharge is so loose and defective as to deserve no credit. We have seen that those discharges are inaccurate in some instances, that they have no precision or certainty as to place or circumstance, that we have evidence of the allowance of part on other proof, and of the positive injustice of other parts ; and we are justified and bound, upon all sound principles, to reject the whole." Method. Ep. Church et al. v. Jaques et al., 3 John. Ch. Eep. 115 to 117. Though, where a confession or declaration is given in evidence, a court and jury may, on suf&. cient ground, believe part and disbelieve another part, yet such parts must be distinct and relate to different matters or facta ; as, " I acknowledge that / borrowed the money, but I rq)aid it." Whereas, a negro saying, " I was manumitted," is a different case. This caimot be used to show that he was once a slave, and rejected when invoked to show that he had become free. Pox v. Lambson, 3 Halst. 255, 256, 251. (When an account is presented to a party, containing items on both sides, and showing a bal- ance against him, and he answers, "It is correct, but I have an offset;" this is aufScient to au- thorize a verdict for the balance admitted to bo due, no other evidence of the set-off being given- Delamater v. Pierce, 3 Denio, 315. The whole conversation relating to the admission may be given, that which tends to discharge the party making the admission, as well as that which tends to charge him. Dorlon v. Douglas, 6 Barb. 451 ; Coon v. The State, 13 S. & M. 246, 471 ; Duffield v. Cross, 12 111. 397 ; Koberts v. Gee, 15 Barb. 449 ; 1 Parker C. R. 11 ; Id. 241 ; 18 Barb. 250.) (1) Ey. & Mo. 257 ; Cray v. Halls, cited Id ; where Abbott, C. J., left the whole of a conver- sation to a jury, to consider whether the facts, asserted by a party, in his own favor, were not true, as well as those against him. And see Remmie v. Hall, Manning's N. P. Dig. (2d ed.), 376, cit. 3 M. & G. 834 420 Admissions by Parties [CH. VIII. the objection was overruled, and it was held by Best, G. J., that the whole of what a party says at the same time must be given in evidence, though what he says in his favor must not on that account be taken as true, but must be left, with all the circumstances, for the jury to consider whether they believe it or not. And in Randle v. Blackburn, (1) it was held, that where a person admitted a claim, but at the same time set up a counter claim, the statement of the counter claim was admissible to prove not only its existence but also its truth and correctness. Answer in chancery. Where in an action by an executor for money lent by his testatrix, to which the defendant had pleaded the Statute of Limitations, (2) it was proved that within six years before the commencement of the suit the plaintiff filed a bill of discovery against the defendant, and the latter in his answer admitted the payment by him to the testatrix of half-yearly pay- ments down to a period within six years ; but alleged, that they were paid, not as interest upon a debt, but by way of security ; it was held, that the jury were at liberty to reject the latter part of the statement, and that the answer might be construed by them merely as admitting the payment of the money, and that the appropriation of it, as interest upon the debt sued upon, might be proved by other evidence. Bill in chancery. It has been seen, that if an answer in chancery is put in evidence, the whole of the bill, if required, must also be put in ;(3) but in that case the jury will be warned by the judge, that the statements in the bill are not to be considered as admissions of the facts so stated ; for it is notorious that allegations, not corresponding with the facts, are frequently introduced into bills for the purpose merely of eliciting the truth from the other party.(4) With respect to the case of an admission containing hearsay evidence, some remarks were made on the subject in the case of Eoe on the demise of Pellatt agt. Ferrars,(5) where the defendant gave in evidence an answer in chancery by the lessors of the plaintiff. Chambre, J., observing upon the degree of positive proof which the lessors of the plaintiff had drawn from the answer in their own favor, expressed himself thus : — " It is true that the answer was introduced into the cause by the defendant, on whose (1) 5 Taunt. 255. And see Thompson v. Austen, 2 D. & R. 361 ; Fletcher v. Froggatt, 2 C. & P. 569 ; Green v. Dunn, 3 Campb. 215 ; Smith v. Young, 1 Campb. 439; Barrymore v. Taylor, 1 Esp. 325; Com. Dig. tit. Evidence, B, 6 ; 12 Vin. Ab. tit. Evidence, A, 23 : 2 Ventr. Ill; Cooper V. Smith, 15 Bast, 103. (2) Baildon v. Walton, 1 Exoh. E. 61f. (3) /Supra, p. ill. (4) By Tindal, C. J., in Pennell v. Meyer, 2 Moo. & R. 99. (6) 2 B. & P. 548. SEC. X.] As to Written Documents. 421 behalf some parts of it were read : but in those parts on -whioh the lessors relied, they speak only to ' what they have heard as truth.' I think that was not admissible evidence ; for it appears to me, that where one party reads a part of the answer of the other party in evidence, he makes the whole admissible only so far as to waive any objection to the competency of the testimony of the party making the answer, and that he does not thereby admit, as evidence, all the facts which may happen to have been stated by way of hearsay only, in the course of the answer to a bill filed for discovery. This point, he added, does not indeed appear to have been contested at the trial ; had it been contested, I should have thought the court bound to send the case down for a new trial."(l) In discussing the effect of admissions made by a party to the suit, it be- comes necessary in some measure to anticipate the consideration of a very important rule, ' which requires that the best evidence shall always be given.(2) A leading instance of the application of this rule is, that where a written document is in existence and accessible, it must itself be pro- duced in evidence, and no secondary evidence of its contents, whether by a professed copy or a verbal statement, will be admissible, unless when the opposite party, having it in his possession, does not produce it after notice to do so. It must be taken, therefore, as an exception to this rule, that in some cases an admission by a party to the suit, as to the contents of a written instrument, may be given in evidence against the admitting party without proof of notice to produce the instrument. Thus in Goss v. Quinton,(3) the defendant, in his examination before commissioners of bankrupt, admitted having taken property belonging to the bankrupt ; upon cross-examination he stated that he purchased the property under an agreement, which he produced, and a copy of the agree- ment was entered as part of his answer. In an action by the assignees of the bankrupt to recover the property in question, they put in the exam- ination of the defendant to prove that he had taken the property ; and it was held that they thereby made the cross-examination evidence, and that, therefore, there was some evidence of the existence of the agreement, without producing or accounting for the absence of the original document. So in Bessey v. "Windhiam,(4) which was an action of trespass against a sheriff for seizing the plaintiff's goods, the plaintiff having put in the sheriff's warrant to his officer, to prove the seizure of the goods, which warrant recited a writ at the suit of a judgment creditor, it was held that (1) See also Lord Trimleston v. Kemmis, 9 CI. & Fin. 180, 784. (2) Post. (3) 3 M. & G. 826. (4) 6 Q. B. 166. 422 Admissions hy JPdrties [CH. viil, this was some evidence of the existence of the writ, so as to show that the sheriff acted under legal authority.(l) Verbal admissiona. Where the admission has been made verbally, and consequently has to be proved by oral evidence, there appears to be a difference of opinion upon the question whether it can be received as evidence of the contents of a written instrument. In the following cases such evidence has been admitted. In Doe d. Lowden v. Watson,(2) Lord Ellenborough, C. J., ruled that a declaration, made by the lessor of the plaintiff, that he had assigned the lease to a third party, was admissible evidence on the part of the defendant. In Sewell v. Stubbs,(3) Gifford, C. J., ruled that a statement made by one of the plaintiffs, as to the contents of a promissory note, was evidence on behalf of the defendant. In Earle v. Picken,(4) Park, J., ruled that a statement by the defend- ant, as to the contents of a written agreement, were admissible on behalf of the plaintiff His Lordship there said: " "What a party says is evidence against himself, as an admission, whether it relate to the contents of a written agreement or to anything else." In Newhall v. Holt,(5) the Court of Exchequer held that a parol admission of a debt by the defendant is evidence against him under a count for an account stated, though it appears that there was a written agreement relating to the subject matter of the goods. And Parke, B., in this case, repeated the doctrine he had laid down in Earle v. Picken. In Slatterie v. Pooley,(6) which may be considered as a leading case (1) See also Haynes v. Hayton, 6 L. J., K. B. (0. S.), 231, cit. 6 Q. B. 1-69. (2) 2 Stark. E, 231, A. D. 181T. (3) 1 0. & P. 73, A. D. 1824. (4) 6 C. & P. 542, A. D. 1833. (5) 6 M. & W. 662, A. D. 1840, T. T. (6) 6 M. & W. 664, A. D. 1840, M. T. In Newman v. Stretch (M. & M. 338, A. D. 1829), Park, J., ruled at Nisi Priua, that the declaration of a bankrupt, that he had absented himself to avoid a writ against him, was evidence of an act of bankruptcy, without any other proof of the existence of the writ. But this case seems to have turned upon the principle, that statements of a bankrupt are admissible vrben they are explanatory of an act done ; vide mpra. The ruling in this case is supported by the decision in Rouch v. The Great Western Railway Company, 1 Q. B. 51. See also Ex Parte Bamford, 15 Ves. 449 ; Eobson v. Rolls, 9 Bing, 648. (The parol admission of a party has been held inadmissible to prove a fact directly in issue, where parol evidence is not admissible (Jameson v. Conway, 6 Gihnan, 221 ; Bivens v. McElroy, 6 Eng. 23 ; 22 Ala. (N. S.), 529; 18 Barb. 250); or where tho admission involves a general con. elusion, as that the suit must go against him. Crockett v. Morrison, 11 Mis. 3. The parol ad- mission of a collateral fact, such as the recovery of a judgment in another action, may be proved. Smith V. Palmer, 6 Cush. 513. The plaintiff, in a suit for work and labor, admits verbally that the claim has been referred to an arbitrator who found nothing due to plaintiff; and this admis- «iou may be proved. Murray v. Gregory, B Exoh. R. 468.) SEC. X.] As to Written Documents. 423 upon this subject, tlie same court laid down the rule that a parol admis- sion by a party to a suit is always receivable in evidence against him, although it relates to the contents of a deed or other written instrument ; and even though its contents be directly in issue in the cause. Parke, B., in that case, observed : " The reason why such parol statements are admissible, without notice to produce or accounting for the absence of the written instrument, is, that they are not open to the same objection which belongs to parol evidence from other sources, where the written evidence might have been produced ; for such evidence is excluded from the pre- sumption of its untruth, arising from the very nature of the case, where better evidence is withheld ; whereas, what a party himself admits to be true may reasonably be presumed to be so." And Lord Abinger, 0. B., though he had not been present at the argument, said he concurred in what was said by Parke, B., and stated that he had always considered it as clear law, that a party's own statements were in all cases admissible against himself, whether they corroborate the contents of a written instru- ment or not. The authority of this case has been recognized by the Court of Com- mon Pleas, in the case of Howard v. Smith,(l) where it was held that, upon the issue of a tenancy in replevin, the verbal statements of the plain- tiff as to the terms of his tenancy were admissible in evidence, although the tenancy was created by adopting the terms of a former demise in writing.(2) Authorities against admissibility. On the other hand, in Bloxam v. Blsee,(8) Abbott, C. J., distinctly laid it down as a rule, that a witness could not be asked what a party to the suit had said as to the contents of deeds executed by such party, without giving him notice to produce the deeds or accounting for their non-pro- duction. And according to one report of this case, his Lordship added : " I give my opinion distinctly, in order that it may be reviewed by a bUl of exceptions, or in any other mode the counsel for the defendant may think proper."(4) And though a motion was afterwards made for a new trial upon other grounds, it does not appear that this objection was renewed in the court above.(5) This case, however, was cited in Slatterie V. Pooley, and was referred to by Parke, B., in his judgment; and it must be considered to be thereby overruled. But the principles laid down by the Court of Exchequer, in the case of Slatterie v. Pooley, have since been much discussed by the judges in the (1) 3 M. & G. 254, A. D. 1841. » (2) See also BetheU v. Blenoowe, 3 M. & G. 119, and Id. 256. (3) Ry. & Moo. 18T ; S. C, 1 C. & P. 558, A. D. 1825. See also Fox v. Waters, 12 A. & B. 43. (4) Ey. & Moo. 188. (5) S. 0., 6 B. & C. 169. See also 1 C. & P. 565. 424 Admissions by Parties [CH. Vlll. Irisli case of Lawless v. Queall,(l) and disapproved of in rather strong terms. Pennefather, C. J., observed : " The doctrine laid down in that case is a most dangerous proposition ; by it a man might be deprived of an estate of £10,000 per annum, derived from his ancestors through regu- lar family deeds and conveyances, by producing a witness, or by one or two conspirators, who might be got to swear that they heard the defend- ant say he had conveyed away his interest therein by deed, or had mort- gaged, or had otherwise incumbered it ; and thus, by the facility so given» the widest door would be opened to fraud, and a man might be stripped of his estate through this invitation to fraud and dishonesty.'' It would seem, however, that these observations would apply to the weight due to such testimony, rather than to its admissibility. It is to be observed that there is no positive law that excludes parol evidence of the contents of a written instrument, except where a written instrument is required by law. Such evidence, in other cases, is excluded by one of those rules which have been laid down by the courts as best calculated for ascertaining the truth. The party against whom such evidence is given may object to it, because oral testimony as to a written document is not the best means of ascertaining its contents. A verbal statement of the contents of a writing may not be true. But the party who is entitled to the benefit of the rule may waive it, if he thinks proper — as, for instance, when he believes that the witness will state truly the contents of the doc- ument. If the party were in court, by himself or his counsel, to make an admission as to the contents of a document, with the contents of which he must necessarily be acquainted, and upon the production of which he might insist, this would amount to a "waiver of its production, and his admission would be taken as true. If he made a similar admission out of court, but for the purposes of the cause, it would operate in a similar manner. Again, if it can be proved, by clear and satisfactory testimony, that he has made such an admission, though not for the purposes of the cause, although it may not be regarded as a waiver of the production of the document, it is surely receivable, as a declaration made by him against his own interest, and which, as he knows the truth, he must be presumed to have made consistently with the truth. The credit or weight to be given to such testimony must, of course, depend upon the circumstances of the case. There is, undoubtedly, in the case of verbal declarations, always the possibility of fraud or perjury on the part of the witness who repeats the declaration. There is the same possibility in every instance where a witness speaks to any fact that he professes to have seen. Such testimony is not rejected, but is to be sifted by the best means the adverse party may have in his power. In'the case of verbal declarations there is , also a possibility — and often a probability — of misapprehension or of inac- (1) 8 Ir. Law Eep. 382. SEC. X.] As to Written Documents. 425 curate recollection on the part of the witness, and the judge will always point out this to the jury. Parke, B., has several times observed that too great weight ought not to be attached to evidence of what a party has been supposed to have said ;(!) and the same learned judge observed, in the case of Slatterie v. Pooley :(2) " The weight and value of such testimony is quite another question ; that will vary according to the circumstances, and it may, in some cases, be quite unsatisfactory to a jury." 'Written admissions. The foregoing observations have reference merely to verbal admissions of the contents and effect of written documents. "When such admissions are themselves in writing, there seems never to have been any doubt as to their admissibility.(3) Thus, where a copartner signed a notice that the partnership had been dissolved, it was ruled to be evidence against him that it had been dis- solved by competent means, and, therefore, was evidence of a dissolution by deed, if a deed were essential to such dissolution.(4) So, letters of the plaintiff, in which he admitted himself to be a share- holder, on a certain day, in a joint stock company established by deed, were held to be proof of that fact, without proof that he had even exe- cuted the deed.(5) Where the defendant put in evidence the plaintiff's answer to a bill in equity, in which answer the plaintiff stated that he had conveyed certain property by deeds of lease and release, it was held that the answer was evidence of the conveyance, without notice being required to produce the deeds.(6) Where admission will not dispense with calling attesting witnesses. It will be seen, hereafter, that it is a rule as to the proof of private writ- ings, that if the execution has been attested by . a witness, that witness (1) See 5 0. & P. 542, n., post. (2) 6 M. i W. 664, 669. Note 123. — One word as to the manner of proving verbal confessions. A witness, one Lenox, called to prove a conversation with a party, said he could not recollect the expressions used, but would give his impressions as to the substance of the conversation. This mode of giving the conversation was objected to, but held admissible. Snell v. Moses, 1 John. Rep. 99, 103. But though the witness be uncontradicted and unimpeached, if the declarations happened a considerable time before he testifies to them, the precise words being important, and he, though confident, not positive, a new trial will not be granted, because the verdict is against his testi- mony. Harding v. Brooks, 5 Pick. Rep. 244. (3) See Goss v. Quinton and Bessey v. Windham, svpra, p. 421. (4) Doe d. Waithman v. Mflls, 1 Stark. R. 181 ; S. C, 4 Camp. S'TS. i (5) Harvey v. Key, 9 B. & C. 356. (6) Ashmore v. Hardy, t 0. & P. 604. 426 Admissions, ly Parties, [oh. vill. must be called to prove the execution ;(1) and this rule operates as an exception to the principle now under consideration ; for instance, if it is proposed to prove, an actual conveyance, an admission of its execution, even made upon oath in an answer in chancery, will not dispense with calling the subscribing witness ; this, however, depends on the principle upon which that rule is founded, namely : that the subscribing witness may be acquainted with facts not within the recollection of the parties to an instrument.(2) But an admission of the execution of a document expressly made for the purpose of the suit, or under a judge's order,(3) stands upon a different footing, and dispenses with the necessity of calling the subscribing witness. Parol admission? ag to, documents or records. A parol admission is not receivable for the purpose of contradicting documentary evidence. Thus, where a person was proved to be seized of certain lands, by documents produced in the cause, his declarations, to the effect that he had a less estate than a fee-simple, were rejected.(4) A parol admission will not dispense with the production of a record ; as where, to prove the discharge of the plaintiff imder an insolvent act, it was proposed to give in evidence his admission to that effect ; the evi- dence was held to be insufficient, and it was thought necessary to call the clerk of the peace, and to give in evidence the order of the Quarter Ses- sions, by which the discharge -vsras effected.(5) Admission made witJumi pryvMce, Another rule, defining the legal nature of an admission, is that an offer by a party, either verbal or in writing, expressly stated to be made with- out prejudice, to pay money by way of compromise, and with a view to buy peace, is not evidence of a debt by way of admission.(6) The ground (1) Post, Vol. II. (2) By Le Blanc, J., in Call v. Dunning, 4 East, 53 ; Abbot v. Plumbe, Doug. 216 ; Cunliffe v. Sefton, 2 Bast, 183 ; Bowles v. Langworthy, 5 T. R. 366. (The admission of a party showing the execution of an instrument, that may be legally exe- cuted without a subscribing witness, is admissible without caUiug such witness ; as in the case of a promissory note. Hall v. Phelps, 2 John. R. 451 ; Shaver v. Bhle, 16 Id. 201; Henty v. Bishop, 2 Wend. 515; Pentz v. "Wiuterbottom, 5 Denio, 51. And the English statute of 1854 provides that "it shall not be necessary to prove by the attesting witness any instrupient to the vaMdity of which attestation is not requisite ; aod such instruments may be proved by admission or otherwise, as if there had been no attesting witness thereto.'' II & 18 Viot. q, 125.) (3) Yidemfra. (4) Harrison and Wife v. Moore, Nott. Spr. Ass. IBS'? ; by Littledale, J., who observed, that in the cases where such declarations had been received, the declarant's title had rested merely on the fact of possession. (5) Scott V. Clare, 3 Camp. 236. So, before Ld. Denman's Act, inorder to prove the iuoompeteacy of a witness on the ground of infamy, his own admission of having been oonvioted was held not sufficient, and an examibed copy of the record of his conviction was required to be produced. E. V. Teal, 11 East, 309 ; Rounds v. Thomas, 5 M. & S. 244; R. v. Castle Careinion, 8 Bast, 18. (6) Cory V. Bretton, 4 0. & P. 462 ; Healey v. Thatcher, 8 0. & P. 388 1 Jardma v. Sheridan, SEC. X.] Made during Treaty. 427 for the rejection of the evidence does not seem very clear. It' is generally considered that an admission made without prejudice is not receivable, on the ground of policy, in protecting such confidential overtures.(l) 2 G. & Kir. 24 See also by Lord Kenyon, C. J., in Turner v. Eailton, 2 Eap, 4'74, and in Greg- ory V. Howard, 3 Bsp. 113. As to the application of the rule in equity, see Harajan t. Van Hatton, 2 Tern. Ill ; Turton v. Benson, 1 P. Wms.^ 491 ; Underwood v. Lord Couitown, 2 Sph, & Lef. 67. (1) See B. K P. 236, where it is said, " If A. sue B. for £100, and B. offer to pay him £20, it shall not be received in evidence, for this neither admits nor ascertains any debt, and is no more than saying he would get rid of the action :" but the reason seems to apply rather to the effect of such evidence, than to its admissiUUty. In Rouse v. Eedwood (1 Esp. 155), Lord Kenyon, C, J., rejected an admission, as being made to a bailiff on the arrest of the party. Note 1 24. — The rule as established by all the cases, with one exception, is, not that an adrnisimn made during, or in consequence of, a treaty of compromise is inadmissible against the party ; but that an offer to do something by way of compromise, as to pay sums of money, allow certain prices, deliver certain property, or make certain deductions and the like, shall be excluded. These cannot be called admissions, which can only be predicated of existing facts ; but are unaQcepted propositions to do. They lie in feasance, and rather negative the present exisieupe of yvhat tljey offer. They might be used, perhaps, as implied admissiopS) were uot this effect taken ?way by the circumstance that they are plainly brought forward with the view to a compromise, and thep, in favor of peace and against litigation, they are privileged. Even this prvijege seems tp, be construed strictly ; for if the proposition is not made expressly without prejudice, or, at least, if it do not plainly carry on its face the character of a peace offering, the privilege is gone. Thus a statement and unqualified admission of an account, on being called on for a settlement, is admissible. Hyde v. Stone, 1 Wend. 354. And again, after an action of assumpsit upon a charter party was commenced, the defendants offered a specific sum to the plaintiffs, and a frien.d of the plaintiffs went to the defendants and advised them to increase their offer, which the der fendants refused, saying, ""We shall lose enough by the charter party as it is," The witpess added that nothing was said about this communication being without prejudice ; but an objection was made that, as the transaction appeared to have been a negotiation for a compromise, it must be understood to be without prejudice. Lord Tenterden received the evidence as prima, fq^ proof of liability, because it was not said to ie without pryvdice ; and an offer of compromise may very well be made without any restriction as to confidence. Wallace v. Small, 1 Mood. & Malk. 446. Similar evidence was admitted in Watts v. Lawson (1 Mood. & Malk. 447, note), which was a case for a newspaper libel. The attorneys met for the purpose of adjusting a recanting article, and agreed on one to be inserted in the defendant's newspaper, which was not ^Ofte- This was allowed as evidence for the plaintiff in aggravation of damages, In general, however, both in England and America, the nature of the negptiation has been Ipoked to ; and that the offer was intended to be without prejudipe, has been inferred frpjn its being plainly an offer with a view to compromise. As observed by a learned judge (MiUs, J.): " Offers of sums, prices or payments made during an attempt to compromise, are not admissible, if not accepted." Otherwise, as to the existence of a fact; c. g. in slander, the plaintiff's 9c|mi^iQn of the fact that the defendant had not originated, but only repeated the slander. Evans v. Sinith,, 5 Monroe, 363, 364. And it was lately made a question in England, whether an agreement by the defendant in respect to a pending suit, to pay the claim of the pjaintiffs, with part of the posts, and actually paying the claim, but omitting to pay the costs, was in nature of a compromise, and therefore inadmissible as evidence against the defendant. JBayley, J., thought it should have been left to the jury to say whether what passed was an offer to purchase peace, or the admission of a general liability. Holroyd, J., said the agreement was with a view to comproniise, and he considered it inadmissible for that reason. But a nonsuit was ordered on other grounfls ; the other judge? omitting to express themselves as to the effect of the negotiation for a copipromise. Lofts v. Hudson, 2 Mann. & Eyl, 481, 483, 484. The most, if not {|11 of the American cases, have, li^e a 428 Admissions by Parties, [CH. Vlll. large majority of the English, gone on the intrinsic character of the transaction, without requiring an express declaration that the communications should be without prejudice. This wiU be seen, among other distinctions, by the cases which we now come to state. In trespass, the defendant offered in support of a motion for a new trial, a paper containing an offer by the plaintiff, before suit brought, to accept a certain sum as his damages, which was not acceded to by the defendant. The court said this would not be evidence, even at the trial. Herr V. Slough, 2 Browne's Rep. Ill, 112, and note 6. In a penal action, the plaintiff offered to show that the defendant had sought to have a compromise proposed. This was rejected as not being competent to prove guilt. Slocum v. Perkins, 3 Serg. & Rawle, 295. A surety, being dis- charged by the conduct o£ the creditor, offered to take a loan of money of the creditor, and secure him on his estate, and also for the sum yet due from his principal, from which he was discharged in equity. But the proposition was not accepted by the creditor. On bUl filed, the proposition being urged against him, the court denied it any weight, saying it was a rejected proposal for compromise, which is never received as evidence. Baird v. Eice, 1 Call, 18, 26. The defendant wrote a letter to the plaintiff, offering to give up certain property ; but the proposition was not accepted. On a bill filed in respect to that property, the court held that the letter tending to a compromise, it was inadmissible as establishing any claim to the property. "Williams v. Price, 5 Munf. 501, 510, 538. A proposition to give the plaintiff twenty-five dollars to settle his demand, was held inadmissible, even to take a case out of the Statute of Limitations ; the court say, be- cause it was a mere peace offering. Laurence v. Hopkins, 13 John. Rep. 288. It was held that after twenty years' adverse possession, this giving a title, the defendant's offer to purchase of the plaintiff was inadmissible as affecting his title ; but this would rather seem to go on the Statute of Frauds. Smith v. Morrow, 5 Litt. Rep. 211, 220. The defendant offered a written statement of the contract, which the plaintiff admitted, for the purpose of having it go to arbitrators then about to be chosen by the parties ; but refused to sign lest it should be evidence against him. The arbitration having fallen through, held not admissible' against the plaintiff. "WUson's Adm'r T. Hines, 1 Alab. Rep. 255 ; S. C, post. The Supreme Court of the state of New York has gone farthest in excluding admissions made during a negotiation for compromise. Thus, at the trial, the plaintiff offered his attorney as & witness. To exclude him as Incompetent on the ground of interest, the defendant proved that he sent to the plaintiff to learn on what terms he would settle the suit. The plaintiff said he could not propose terms without seeing his attorney, who was interested, as owning part of the demand. Held inadmissible, as being drawn out by an offer to compromise. "Williams v. Thorp, 8 Cowen, 201. This exclusion of an independent fact disconnected with, and not necessarily making any part of a proposition to compromise, is contrary to the whole current of English and American authorities. It seems not sustainable upon Turner v. Railton (2 Esp. Rep. 447), or "Waldridge v. Kenuison (1 Id. 143), cited and mainly rehed upon by the learned judge who delivered the opinion of the court ; though the dictum of Lord Kenyon in the latter cause is certainly broad enough for the purpose. This dictum might have been a better ground of reli- ance, however, were it not fearfully shaken by the very decision which followed in the same cause ; and utterly overthrown by the subsequent decision of the same learned judge in Turner V. Railton. These two English cases go with the others cited by our author; and the same thing had been before held by several learned judges in New Tork, and by the Court of Errors itself in that state. Thus, in an action for a breach of marriage promise, the defendant sent a witness to compromise with the plamtiff; and in the course of authorizing the negotiation, admitted the promise of marriage to the witness, his agent. Held, that the plaintiff might show this ; and per Thompson, 0. J., " The communications made between the parties at the tune of an attempted compromise, are alone privileged. The witness was not an authorized agent for both parties ; and there has been an admission of a fact independent of the compromise." Mount v. Bogert, Anth. N. P. Rep. 190 ; 3 S. C, 0. H. Eeo. 193. It was remarked in the Court of Errors by a senator, " I am not prepared to admit that what a party may state aa a fact, though the statement may be made in the course of negotiation for a compromise, or may be connected with an offer to purchase peace, will not be as binding as if the fact had been disclosed in any other way. If a man says to me, ' I do not admit that I owe you anything : but rather than be sued, I will give you a hundred dollars,' it would be most unjust to suffer me to avail myself of this offer, to recover against him. But if one tells me, ' I justly owe you a hundred dollars, and SEC. X.] Made during Treaty. 429 will give you fifty if you will give up your debt,' I apprehend there is no rule of law so absurd and unjust as to prevent my availing myself of my debtor's confession, because he connected with it an offer of compromise." Murray v. Coster, 4 Cowen's Rep. 635, per Golden, Senator. In this case, it was held that an answer in chancery admitting the debt, but insisting on the Statute of Limitations, did not come within the rule which excludes offers of compromise ; and that, accompanying a plea of the statute or standing alone, it is unavailable as destroying its own professed object. 20 John. Rep. 516 ; S. C, 4 Cowen, svpra. The case as presented in the 20 Johnson, certainly goes farther, and seems to decide most plainly that an admission of a fact, though made in the course of a negotiation for a compromise, is receivable. The bill was to recover the plaintiff's share of the proceeds of goods sold by the defendants, being in nature of an action for money had and received, wherein the defendants may have a right to, and in this case did attempt to set up the Statute of Limitations. But it appeared by their answer that they had, in order to avoid litigation, offered to pay the plaintiffs their share without interest ; but reserved ths right to plead the statute, if the offer was refused, and insisted they were discharged by lapse of time. Held, "that this was such an acknowledgment and admission of the debt as defeated the operation of the statute." 20 John. Rep. 616. Such is the marginal note; and that such is a correct abstract will be seen by consulting the opinion of Spencer, Ch. J., at pp. 586 to 590. Here, then, is an admission made avowedly and expressly with a view to compromise, to pre- vent litigation, and as a peace admission, though not a peace offer or proposition ; and it was held receivable, and not privileged because it was an admission of a foci. We shall now see, by a brief abstract of the other American cases, and comparing them with the English, as presented in the text, that the distinction established in Murray and Coster is sustained by all, with the single exception of Williams and Thorp, supra. In an action on an agreement for the defendants with the plaintiffs, to make a drawbridge, the plaintiffs offered to show that one of the defendants admitted to one of the directors of the plain- tiffs that the draw was not made pursuant to the contract ; and in the same conversation it appeared the defendant had asked for terms of compromise. The admission being therefore rejected, on motion for a new trial, Hosmer, Ch. J., said : — " The law on this subject has been often misconceived ; and it is time that it should be firmly estabhshed. It is never the intend- ment of the law to shut out the truth ; but to repel any inference which may arise from a propo- sition made, not with design to admit the existence of a fact, but merely to buy one's peace. If an admission, however, is made because it is a fact, the evidence to prove it is competent, what- ever motive may have prompted to the declaration. In illustration of this remark, it may be observed, that if A. offer to B. £10, in satisfaction of his claim of £100, merely to prevent a suit or purchase tranquility, this implies no admission that any sum is due ; and therefore testimony to prove the fact must be rejected, because it evinces nothing concerning the merits of the con- troversy. But if A. admit a particular item in an account, or any 'other fact, meaning to make the admission as being true, this is good evidence, although the object of the conversation was to compromise an existing controversy. The question to be considered is, what was the view and intention of the party in making the admission — whether it was to concede a fact hypothetically, in order to effect a settlement, or declare a fact really to exist ? There is no point of honor guarded by the court, nor exclusion of evidence, lest it should deter from a free conversation. But testimony of admissions or declarations, taking facts for granted, not because they are true, but because good poUcy constrains the temporary yielding of them to effectuate a greater good, is not admissible — truth being the object of evidence." Hartford Bridge Company v. Granger and others, 4 Conn. Rep. 142. So, in a suit to charge the defendant with the maintenance of a bastard child, it was offered to show that, on the mother charging him with being the father, he told her that if she would not sue him, but keep the matter secret, he would give her some money, &c., held admissible, within the case in 4 Conn. Rep. 142. Fuller v. The Town of Hampton, 5 Conn. Rep. 416. Vid. p. 426. So, in an action on a promise by the defendants (attorneys) to indemnify the plaintiff against arresting L., who had recovered against him for false imprisonment in making the arrest, which suit was defended by the defendants as attorneys, the plaintiff offered to show that, while he and the defendants were together trying to effect a compromise, one of the defendants told him that he had charged him nothing for defending the suit brought by L. This was offered as a ground of inference that the defendant was a joint promisor to indemnify. The evidence was held admissible, as tending to the admission of a 430 Admissions by Parties, [CH. viil. Admissions of this nature are generally made by the attorneys of the parties in negotiations before the commencement of a suit. But they are treated of in this place because they are considered as the acts of the par- ties themselves, and may, in fact, directly emanate from them. And the same principle is applicable whether they are made by the parties or their attorneys.(l) Where a communication, " without prejudice," had taken place between the attorneys of the plaintiff and the defendant, and the plaintiff's attor- ney three months afterwards called on the defendant to explain why an earlier answer was not given to a proposition made in the course of the prior communication, it was held that the evidence of what passed on the second occasion was inadmissible.(2) And where a letter has been written " without prejudice," the answer to it, though not guarded in a similar manner, will not be admitted.(3) The rule under consideration seems to apply to any admission or confession made by a party respecting the subject matter of the action, obtained while a treaty is depending under faith of such treaty, and into which the party may have been led by the confidence of a compromise taking place ;(4) but it does not apply where admissions are made not under fact, or item, independent of an offer of compromise. Marsh v. Gold, 2 Pick. 285, 290. So, in an action for money had and received, it was offered to show that the defendant gave B., who applied to him in behalf of one of his creditors, between whom and the defendant a compromise was pending, a memorandum of the money due to the plaintiff; but it was to be Confidential, and not to be shown to the creditors. It was objected that here was a compromise pending. The court disallowed the objection. They said' the rule is, that an offer to pay a sum of money to compromise a pending controversy is inadmissible ; but this ia confined to the mere offer of com- promise. Any indepedent facts admitted during the treaty of compromise may be given in evidence as confessions. Gerrish, Adm'r, v. Sweetser, 4 Pick. 374, 377. Again: — " EUery opposed the introduction of testimony to prove admissions made whUe a compromise was in con- templation. Livingston, contra. ' Proposals made while a compromise is on the carpet, do not bind; Tont conversations in which a fact is disclosed may be admitted to prove it.' Of this opinion was the court." Delogny v. Rentoul, 2 Mart. Lou. Rep. 175. Again: the plaintiffs claimed that the defendant had bound himself by his agent, Davis, to convey to the plaintiffe' ancestor the legal title of certain land ; and the defendant proposed terms of compromise not complied with ; but in the same proposition admitted that Davis was his agent. Though this was the only evi- dence of the agency, yet the court received it, saying it was the admission of a fact no way con- nected with a mere offer of compromise, nor necessary to a compromise. Church v. Steele's Heirs, 1 Marsh. Ky. Rep. 328. So in crim. con., the defendant, with a view to compromise, admitted to the plaintiff that he had been guilty of the imputed intimacy with his wife, and offered to take and bring up one of his ciuldren. Held, that intimacy was an independent fact, and might be given in evidence against him ; that the offer, had it stood alone, would not be so ; but following, as it did, the first admission, and appearing to be grounded on it as a consequence, the whole was rooeivable as a connected admission of the fact. It was like an express admission that $20 are due, and an offer to pay that sum. Sanborn v. Neilson, 3 N. H. Rep. 501, 508, 509. (1) Vide Post. (2) Collin's Bx'rs v. 'WrJght, Midi. Spr. Oir. 1837 ; by Lord Abinger, C. B. (3) Paddock v. Forrester, 8 Scott N. R. 834. (4) By Lord Kenyou, C. J., in "Waldridge v. Kennison, 1 Esp. 143, 144. See alao by Bayley, J., in Thompson v. Austen, 2 D. & E. 361. SEC. X.] Made during Treaty. 431 the condition of their being without prejudice, or not under the faith of any treaty for a compromise ;(1) or where an agreement, though purporting to be a compromise, has been finally concluded (as, where it has been signed by the parties and executed),{2) or where the admissions were made before an arbitrator.(8) In this last case, though the proceedings are said to be before a domestic forum, yet the parties are, at the time, contesting their rights as adversely as before any other tribunal.(4) The fact of a person having made an offer to compromise a suit, is admissible, and may be ma- terial, as some evidence of liability,(5) although it may not be proper to inquire into the terms offered :(6) but an offer to pay a less sum than that demanded, is not a sufiB.cient acknowledgment of a debt, to support a count "upon an account stated, as it merely amounts to an offer to purchase peace.(7) Admission of ooUaterai or indifferent facts during treaty. A distinction, also, is to be made on this subject, between an admission of some fact connected with the merits of the cause, and an admission of an indifferent fact. Ihus, on the trial of an action, which had been once withdrawn under a treaty between the parties, Lord Kenyon, C. J., al- lowed proof of the defendant's having admitted his acceptance on a bill of exchange, though the admission had been made during the treaty ;(8) he held, that any admission by the party, respecting the subject matter of the action, pending a treaty on the faith of which it was made, could not be received to his prejudice ; but added, such a fact as that of the party's handwriting, not being connected with the merits of the cause, and capa- ble of being easily proved, stood on different grounds, and that an admis- sion of this fact might be received. (1) Wallace v. Small, 1 M. & M. 446 ; HiU v. EUiott, 5 C. i'"i, was held sufficient evidence of hia admission to go to the jury. Coe v. Hut- ton, 1 Serg. & Eawle, 398. Again ; on motion for a new trial, the court say, by Cheves, J. : — "In this case, it was averred by the plaintiff repeatedly, in the hearing of the defendant, and in con- versations addressed particularly to himj that he had received money belonging to the intestate, to the amount of $2,000 ; and he did not contradict it. If there had been bo other evidence in the cause, if the question had been fiiirly submitted to the jury (and on that head there is no complaint), I should iave been at a loss to say on what ground the verdict should have been set aside. If it had been for $2,000, I cannot say it ought to have been set aside. I readily admit such testimony may be equivocal, and should sometimes be received on the trial with cautious and reluctant credence ; but at other times it will be acknowledged to be perfectly satisfactory. The discrimiuation can seldom be made but at the trial." Hendrickson, Adm'r v. Miller, 1 Hep. Const. Court, 296. The defendants bid off a bale of broadcloth ; and the auctioneers made out and deUvered a bai of parcels to them. Held, that standing by in silence and seeing their names placed in the bill as purchasers, was an assent that the auctioneers had authority to place it there, which made out a good note in writing, within the Statute of Praudg. Batturs v. Sellers, 5 Har. & John. Ill, 119. Again: that a purchaser paid £50 to the seller, saying, "this is the amount of T. tract; it is mine now," is evidence of payment in fuU; that not being contradicted. Vincent v. Huff 's^Lessee, 8 Serg. & Rawle, 38 1,, 389. And so if spoken to another in so loud a voice as to make it quite certain that the receiver heard what was said. Id. So a man being called by and answering to a certain name, or pleading to an indictment by a certain name, ig evidence against him that the name pronounced is his true name. State v. Rawles, 2 Nott & M'Cord, 381. The plaintiff was present on application by the defendant to a judge at chambers to be discharged on oonamon baU. A witness was sworn, who died ; aud what he said was pro^ posed to be proved on the trial of the same cause, the plaintiff not denying at the hearing what the witness swore. The court received it as they would any other statement in the party's pres- ence, not denied ; saying the maxim, qui tacet consentire mddv/r, applied. Jackson v. "Winchester 2 Teates, 629. Quere. See Bex v. Appleby ; and Melen v. Andrews, mfra, contra; and see, also, Hovey v. Hovey, and Martin v. Root, infra. A physician's bill for attending a sick seaman was presented to the master of the ship, who made no objection to it. This was held evidence against the master in an action to recover on the bill. M 'Bride's Ex'x v. "Watts, 1 M'Cord, 384. So where one asserted the terms of a contract between him and A., to the latter, who did not contradict them ; held proof of the terms as asserted ("WeUa v. Drayton, 1 Rep. Const. Court, 111) ; and the jury departing from this proof in the absence of anything to contradict it, a new trial was granted. Id. 438 Admissions ly Parties, [CH. Vlir. The foUowing cases will show the qualifications under which conversations of this kind are to be reoeired. In ejectment, the plaintiff offered to sho-w that the defendant was along as chain bearer for a jury of view between other parties, who held a coversatiou in his presence relative to the locality of the tract now claimed by him. Held inadmissible. The court say there is no evidence that he stood so near as of necessity to hear the conversation. He was employed in a business which required ah his attention. The reason why this species of evidence is given, is because the party, by his silence, is supposed to acquiesce. Qui iacet coTisentire videttir. That presupposes a propo- sition made to him which he is bound either to deny or admit. Such evidence ought never to be received unless it be of direct declarations which naturally call for contradiction ; some assertion made to a man with respect to his right, which by his silence he acquiesces in. Moore v. Smith, 14 Serg. & Rawle, 388, 393. So, on the question whether the defendant had notice of the plain- tiff's claim to the land in dispute, the defendant proved that he denied notice to the plaintiff; who did not say he had any, but talked of quieting the dispute. The court said this should not be received as evidence that the defendant had not notice ; as the plaintiff being desirous to quiet the dispute, would in all probability avoid contradiction and irritating language. Rochester v. Anderson, Litt. Sel. Cas. 143, 145. The prisoner did not contradict a statement made by the solicitor for the prosecution, before the examining magistrate, and it was sought to be given in evidence on that ground as an admission of the prisoner. But the witness called to prove the statement, saying he beUeved it was taken down in writing, it was not received. Rex v. Hol- Mngshead, 4 Carr. & Payne, 242. On this case, the learned reporters suggest that the testunony would not be admissible in any form, merely because not contradicted by the prisoner, no infe- rence arising from his sUence under the circumstances ; and they rely on Rex v. Appleby (3 Stark. K P. Cases, 33), and Melen v. Andrews (1 Mood. & Malk. 336). The first was where A. & B. being charged with a joint felony before a magistrate. A., on his examination before the magis- trate, confessed in B.'s presence and hearing that the felony was joint by them, which B. did not contradict ; yet, held not admissible against B. ; and, in the latter, a deposition taken before a magistrate on a charge against A., where A. cross-examined the witness, but did not contradict what he said, was denied in evidence against A. See also Hovey v. Hovey and Martin v. Root, infra. In trover for a negro boy, the plaintiff offered to show that the defendant being applied to, to exchange the boy, said that the boy belonged to the plaintiff, and advised him to apply to the plaintiff, which he did ; and the plaintiff repUed that he would not make the exchange, "that it would not suit Tivm to exchmige the boy for a man." The court rejected this response as inadmissible ; for it could not add to the admission of the defendant, and so was not material i and beside, it would be allowing the plaintiff to manufacture testimony for himself. Talbot v. Talbot's Rep's, 2 J. J. Marsh. 4, 5. In an action for an assault, what was said by the magistrate to the plaintiff, at a previous in- vestigation of the circumstances before him, is not admissible for the defendant, unless the plain- tiff replied ; and per Best, Oh. J., on the question as to what the magistrate said being proposed ■ " A man may say, ' This is impertinent in you. I will not answer your question.' Tou are driving at the opinion of the magistrate, whereas it is for the jury to form their opinion." Child V. Grace, 2 Oarr. & Payne, 193. If it be doubtful whether the party heard or understood the proposition to which his sileu* assent is claimed, the jury may determine this. Thus, where on a trial for an assault and battery on P., a female, it appeared that she had in the same room with the defendant, stated her case sufSciently loud for any one there to hear it, and appealed to a third person for its correctness, who said it was correct ; and the defendant being considerably intoxicated, said nothing to the statement ; held, it was right to receive this in evidence against the defendant, putting it to the jury whether he heard and assented to what P. stated. State v. Perkins, 3 Hawks, ill. Another fruitful ground of implied admission is, the receiving an account current of dealings between the parties, and suffering it to lie without objection. The doctrine of this and the like cases may be gathered from the authorities which follow. Per Ld. Hutohins : " Amongst merchants, it is looked upon as the allowance of an account current, if the merchant that receives it does not object against it m a second or third post." Sherman V. Sherman, 2 Vern. 216. Again: "There is no absolute necessity that an account should be signed by the parties who have mutual dealings, to make it a stated account. Even SEC. X.] By Demeanor and Conduct. 439 where there are trangaotions, suppose between a merchant in England and a merchant beyond sea, and an account is transmitted here from a person who is abroad, it is not the signing which wUl make it a stated account ; but the person to whom it is sent keeping it by him for any length of time, without making any objection, shall bind him. and prevent his entering into an open account afterwards." Per Ld. Hardwicke, in "Willis v. Jernegan, 2 Atk. 252. Again : " If one merchant send an account current to another in a different country, on which a balance is made due to himself, the other keeps it by him about two years, without objection, the rule of this court and of merchants is, that it is considered as a stated account." Per Ld. Hardwicke, in Tiokel V. Short, 2 Ves. sen. 239. " It has been often held that if a party receives a stated account from abroad, and keeps it by him for any length of time (one case says two years), without objection, he shall be bound by it." Per Kent, Ch., in Murray v. Toland, 3 Jolm. Ch. Rep. 575. '■ "When one merchant sends an account current to another residing in a different country, between whom there are mutual dealings, and he keeps It two years without making any objections, it shall be deemed a stated account ; and his silence and acquiescence shall bind him, at least so far as to cast the onus probandi on him." Freeland v. Heron, 1 Cranoh's Bep. 141, 151, per Our. by Du- vall, J. In an action in behalf of the consignor against the consignee, evidence was given that an invoice accompanied the goods and remained many years without any objection being made by the latter; and "Washington, J., held this to be evidence that all the articles had been received by the consignee ; there being no proof to the contrary. Field's Assignees v. Moulson, 2 "Wash. C. C. Rep. 155. In assumpsit, the question was whether the defendants were dormant partners of B. & A. To prove this, the plaintiffs offered the accounts of B. & A., rendered by them to the defendants, of joint purchases of goods. These accounts having been retained by the defend- ants without objection, the court held them admissible. Corps v. Robinson et al., 2 "Wash. C. C. Rep. 388. But this doctrine seems not in practice to have been received with regard to statements in writing, other than accounts, nor in any other than mercantile dealings. Accordingly, in assumpsit for money had and received, the plaintiff called for a letter written by him to the de- fendant, and offered it in evidence. He said certain things were stated in it which the defend- ant might deny by answering it ; and submitted that it was evidence, the same as what might be said in his presence and. not contradicted. But, per Ld. Tenterden, C. J., " I am slow to admit that. "What is said to a man before his face, he is in some degree caUed on to contradict, if he does not acquiesce in it ; but the not answering a letter is quite different ; and it is too much to say that a man by not answering a letter at all events, admits the truth of the state- ments that the letter contains. I am of opinion that this letter cannot be read. You may have that single line read in which the plaintiff makes a demand of a certain amount ; but not any other part which states any supposed fact or facts." Fairlie v. Denton, 3 Carr. & Payne, 103 ; Anthoine v. Coit, 2 Hall's Rep. K. T. S. 0., 40; stated amte, note 117, S. P. Again; the plain- tiffs gave in evidence against the defendant their written statement before the New York Cham- ber of Commerce, in order to show that the defendant's answer contained an implied admission of their charge. This was on a submission of their dispute to the chamber, whose practice was that the party's answer should not be required until after he had seen the claim of his adversary, but held inadmissible, because no direct proof was given that he had seen the charge. La Farge et aJ. V. Kneeland, 1 Cowen's Rep. 456, 459. Nor, semble, would it then be admissible except to explain the answer. Id. It is scarcely necessary to observe, that where the party himself furnishes an account making against him, it is very satisfactory evidence as an admission. Such account is an express admis- sion, if signed ; and where it was not signed, yet being proved to be in the defendant's hand- writing, it was allowed to go to the jury against him. Jessup v. Cook, 1 Coxe, 434. So any paper written by a party is evidence against him, though it be signed by a third person. Best, C. J., said he would receive it as what the party writing it had said. The effect was another thing. Alexander v. Brown, 1 Carr. & Payne, 288. The admission of the party is often implied from the state of the pleadings in the cause, as we shall see more at large in the subsequent pages, and when we come to treat of the rule that the substance of the issue must be proved, which are the more proper places for considering the effect of the pleadings in working a confession or denial. In one case this was carried so far, that going to trial without a rejoinder was construed into an absolute admission of the facts set 440 Admissions by Parties, [CH. viii. out in the replication ; and a verdict for the defendant was set aside on this ground, though the attention of neither judge nor jury was called to the omission upon the trial Porter^s Adm'rs T. Kenut, 1 M'Cord, 205. But a demurrer or plea to a bill in equity does not so admit the facts charged in it, as to be evidence against the defendant in a future action, even between the same parties, for the party may still answer ; and the plea merely deolimes to answer. Tompkins v. Ashby, 1 Mood. & Malk. 32, 33. The admissioa. of the party is often implied from his acts, or those of his attorney or counsel in the cause, before, or in preparing for the trial, or from his or their conduct and management upon the trial. Thus, in an action for money paid in defending a suit at the defendant's request, averring a judgment recovered against the plaintiff of £42, a ca. sa., imprisonment and payment thereon, the plaintiff failed to prove any of the facts beyond the recovery of the judgment. But the de- fendant having taken out, a summons to be permitted to pay the above sum in discharge of the suit, this was held an admission which dispensed with further proof 'Williamson v. Henley, 6 Bing. 229. The defendant offered the plaintiffs, claiming as assignees of a bankrupt, a debt against the defendant, to admit on the trial every fact except the merits, saying all he wished to try was whether he was liable on his undertaking, to which the plaintiffs acceded, and according to a farther stipulation between the parties, forbore as a consideration to hold the defendant to bail. Held, that he could not, on trial, dispute the formal facts necessary to show the plaintiffs to be regular assignees. Davies v. Burton, 4 Carr. & Payne, 166. An admission by the defendant's attorney, that the person of whom the plaintiffs claimed to be assignees, had been duly declared bankrupt, precludes any call for the proceedings under the commission, with a view to show that such person had not committed an act of bankruptcy. Perring v. Tucker, 3 Moore & Payne, 557. A bill of particulars, delivered under a judge's order^ is an admission, and the defendant was allowed to use it as such, and adopt a credit therein as proof of part payment. Rymer v. Cook, 1 Mood. A Malk. 86, ST, note. But see Brittingham v. Stevens, 1 Hall's Eep. N. T. S. C. 319, contra. In an action against the acceptor of a bill of exchange, where the defendant's attorney had given notice to the plaintiff to produce all papers relating to the bill in question (describing it), " wliich said bUl was accepted by the said defend- ant," held that such notice was prima facie evidence of the defendant's acceptance. Holt v. Squire, Ry. & Mood. N". P. Rep. 282. .But one party cannot use, as evidence, his own deposition In another action, though it was taken at the request of the other party in this action ; for it cannot be inferred from his procuring the deposition, that he admits the statement it contained, though it was intended to be used, and was filed by the other party in the former suit. Hovey v. Hovey, 9 Mass. Rep. 216. Nor would it be evidence as an admission against him, though he had used it in the other suit. Mar- tin V. Root, 17 Mass. Rep. 222, 224, 227. See also Rex v. Appleby and Melen v. Andrews, eupra, and post, of text. On a former trial of this cause, the defendant gave in evidence a letter from the agent of the lessor of the plaintiff which contained facts, the legal effect of which were against the defendant. On a new trial, the plaintiff offered this letter as evidence, but the defendant objected. The court held, that an offer of the letter on a former trial was an admission of the facts contained in it, and received it on this ground. M'Clay's Lessee v. Work, 10 Serg. k Rawle, 194. So, where a book of field notes had at three several trials of the same cause in the same court, been given in evidence by the plaintiff as the book of G., without objection by the defendant that it was not G.'s book; but other grounds were taken against its admission. On its being offered by the plaintiff upon a fourth trial, the defendant objected that it should fiist be proved to be G.'s book. Held unnecessary, as the case came within the rule of practice, that what is not denied is admitted, and to specify some objections to evidence, waives all other objections not mentioned. Unger v. Wiggins, 1 Rawle, 231, 235. So, where the plaintiff claimed under and gave proof of title in C, the defendant insisted that the proof was not sufficient for that purpose ; but then himself gave in evidence an act of attainder against C, by which he contended 0. was divested of his title. Held, this was an admission that 0. had a valid title, and the force of the attainder being afterwards done away, the plaintiff's title was complete. Jackson ex dem. Swart- wout V. Cole, 4 Cow. 587. Again ; in ejectment, the defendant at the trial claimed title by a SEC. X.] By Demeanor and Conduct. 441 mortgage of the locus in quo, executed by one G., under whom the plaintiff also claimed. Held, that by the claim under the mortgage, the defendant admitted title at the date of the mortgage. Jackson ex dem. HiUa v. Tuttle, 9 Cowen's Eep. 233. So, in ejectment, the plaintiff, in deducing his own title, produced a deed reciting a judgment, in virtue of which the defendant had a good defence, and it was held an admission of that judgment, so that the defendant need not produce the record. Garner's Lessee v. Johnston, Peck, 24, 26. But calling on the trial for the defendant's account, for the purpose of proving it incorrect, and reading it to the jury with that view, is no admission of its correctness. Gracy v. Bailee, 16 Serg. & Eawle, 126. After the trial, the case prepared as the ground of motion for a new trial, or the biU of excep- tions for a writ of error, are not evidence, it would seem, even on an after trial of the same cause in which they are prepared, much less of another cause (Elting v. Scott, 2 John. Eep. 15*7, 162 ; Harrison's Devisees v. Baker, 5 Litt. 250, 252, 254 ; Bailor v. Smi*hers, 1 Monroe, 6, T) ; though held, the latter may be used to discredit a witness on a second trial of the same cause. Bailor v. Smithers, 1 Monroe, 6, 1. It remains to state some other acts and declarations which have been considered as eoKfessions, or equivalent to confessions, and some to which this character has been denied. In a cause by Smith, plaintiff, against Middleton and others, Middleton caused a plot or survey of the land in question to be made and returned favorable to the land claim of one Eeeves. The latter brought an action of trespass quare olamswn fregit against Middleton, and was allowed to give the plot in evidence as an admission of Middleton. Eeeves v. Middleton, 2 Har. & M'Hen. 414. So, in an action against a sheriff for taking insufBcient sureties in a replevin bond, held, that his having assigned it to the plaintiff, dispensed with proof of its execution. Edwards V. Etherington, Ey. & Mood. N. P. Eep. 268. A petition of the corporate stockholders for a statute appointing commissioners, ia evidence of their assent to the statute. Com. of the Farm. & Meoh. Bank of Shelby vffle v. Jarvis, 1 Monroe, 4. And, semble, the bond of a guardian given to his ward, on his coming of age, is evidence as a confession of what ia due on the former bond given by the gua,rdian, with sureties. Hamlin's Adm'r v. Atkinson, 6 Rand. 5'74. Answers to lost interrogatories, in a bill or otherwise, may be read against the party as admissions, ». «., as something said or written by him, though by the loss, some part of the answer may be unintelli- gible. Eowe V. Brenton, 3 Mann. & Eyl. 211. A man living on tract A. takes a deed of another tract, described as bounding on A. ; this ia evidence against him, in the nature of a con- fession, that tract A. did not cover any part of the last tract. Hathaway v. Spooner, 9 Pick. 23. Assumpsit for money lent, &c., was brought more than six years after the loan, but the defendant had given his note for the money to the plaintiffs, and within six years indorsed upon this note a promise to pay it. The note was void, as having arisen out of an illegal discount, but the loan was vaUd ; and this indorsement on the note was holden a sufficient acknowledgment of the loan to take the case out of the Statute of Limitations. Utica Ins. Co. v. Kp, 3 "Wend. Rep. 369, 373. In an action against a man as toll gatherer of a turnpike road, for improperly demand- ing toU, his shutting the gate and making the demand, b an admission of his office, and sufficient prodf of it. Trowbridge v. Baker, 1 Cowen's Eep. 251. A man's confession that he is a British subject, is evidence against him to go to a jury that he is a British iom subject. Rex v. Eel- sham, 4 Carr. & Payne, 438. In an action for striking the defendant's carriage against the plain- tiff's cart, it was held that what any one (the ladies for instance) in the defendant's carriage answered, on inquiry as to the address of the owner, was admissible against him, but not a statement by them that any damage done would be paid for. Beamon v. EUiee, 4 Carr. & Payne, 585. But a naked declaration that one intends to do an ;aot, without any other proof of his having acted, is not admissible to show the act done. BuUock v. Beach, 3 Term. Rep. IS. iNor is a party's admission that he is now in possession of certain premises, evidence Of his possession ait any antecedent day. Tindal v. Whitrow, 1 Carr. 4; Payne, 22. An agreement by the defendant to compromise a suit, by paying £100 and two-thirds of the plaintiff's posts ; and paying the £100, but omitting to pay the costs, held not to amount to an admission of the original cause of action. Lofts v. Hudson, 2 Mann. & Ryl. 481. And what is set up as a mere excuse in a prig- oner's examination, can never avail to support a substantive averment in the indictment. Heath's Cases, 2 C. H. Rec. 54, before Radcliff, Mayor. An admission that the defendant was 442 Admissions hy Parties [CH. Vlll. Effect of suoi. evidence. It very commonly happens, that evidence of the description referred to has the effect of misleading juries, who are frequently influenced by it, in consequence of giving credit to it as hearsay testimony^ and are unable, notwithstanding any directions from a judge, to regard it solely as exhibit- the editor of a paper on tlie day wlien a certain libel was published, -was held not to be evidence of the same fact, continuing even to a few days after. Macleod v. "Wakely, 3 Carr. & Payne, 311. But, qwre. This case is not in accordance with the rule, that the proof of a fact or relation, which is in its nature of a continuing or enduring character, shall be prima facie evidence of the existence of the same fact at a future day, and untU a change shall be shown by the other side. This rule will be considered and illustrated when we come to the doctrines of presumptive and circumstantial evidence. But to continue. If a prisoner, in speaking of the testimony of a witness who had testified against him on a former trial, say, " what 0. (the witness) swore was true, but he did not say all or enough," this is not admissible as a confession of the prisoner, nor does it lay any foundation for proving what C. did swear to. Finn v. The Commonwealth, 5 Rand. TOl. On an issue of deuisavii velnon, the defendants offered proof that one of the devisees had, by various discourse, miiTnated that he had procured the will to be made, and that it was read to him, and that he had given a reason why hia brothers and sisters got so small a portion. Held, too loose an offer in not showing what was said. Testimony could not be given in the form offered. It would not amount to an admission of anything material or relevant. Miller v. MiUer, 3 Serg. & Rawle, 26"?. A devise that all the testator's just debts shall be paid, will not take a particular debt out of the Statute of Limitations. Peck v. Bottsford, 1 Conn. Sep. 172. The wife's petition to the Court of Probates, with the authorization of her husband, to be received as beneficiary heir to her son, may be received to do away the effect of her plea of coverture to an action against her as such heir for a debt of her son, by proving her acceptance of the heirship with her husband's consent. Flower v. O'Conner, 8 Lou. Rep. (N. S.) 555. The confession of a party as to the legal effect of his contract, e. g. that his agency under a certain arrangement contined to such a time, cannot affect him ; and o foHiori, it cannot affect others bound for him in respect of the agency. Boston Hat Manufactory v. Messinger, 2 Pick. 223. So as to his legal rights in any respect. Polk's Lessee v. Robertson, 1 Teun. Rep. 463 j Craig V. Baker, Hardin, 281 ; Leforce v. Robinson, Litt. Sel. Cas. 22, 23 ; Moore v. Hitchcock, 4 Wend. 292. Whether a man's deed deUvered and remaining as an escrow, can be used against him as a confession of the facts recited in it? Quere. Lansing v. Gaiae et al., 2 John. Rep. 300. Where a cause was sought to be supported by conversations and admissions, so vague and un- satisfactory that a jury would have been authorized to found a verdict upon them, held, that the court were right in nonsuiting the plaintiff. Ward v. Tanduzer, 2 Hall's Rep. N. Y. S. C. 182. But where the declaration is equivocal in its Object, the jury may sometimes determine to what it refers. Thus, where a promissory note was signed by the defendant and one A., and A. gave, in renewal of it, a note in which the name of the defendant was forged, and a, suit was brought upon the forged note, and the plaintiff gave in evidence declarations and admissions of the de- fendant, tending to show an adoption of this note, and to take it out of the Statute of Limita- tions, in one of which declarations he spoke of the suit having been commenced ; held, that the service of the writ did not raise a presumption that the declaration related to the new note rather than the old one, without evidence that the defendant had knowledge of the new one or of the contents of the writ, and that the burden was on the plaintiff to prove such knowledge ; and that it was proper for the jury to determine, upon the whole evidence, to which of the notes the declarations and admissions related. PhUlipa v. Ford, 9 Pick. 39. So whether a confession im- ports a joint or several debt. Accordingly, in an action for money as paid for another by one alone, letters from that other are admissible in evidence for the single claimant, although they in- dicate that the money was paid by him and another jointly; and it is for the jury to say whether they do not show a debt due to the claimant alone. Ash v. Patton, 3 Serg. & Rawle, 300. SEC. X.] By Acquiescence. 443 ing demeanor and conduct. In many instances, especially wliere no ob- servation has been made by the party on hearing it, the evidence is par- ticularly liable to produce erroneous conclusions. An acquiescence in the truth of the statement is frequently inferred, though the inference may, from a variety of causes, be incorrect. Thus the evidence is not only fal- lacious with reference to its object, but in its collateral effect is prejudicial to the investigation of truth. The acquiescence of a party is still less entitled to consideration, where he has no means of personally knowing the truth or falsehood of a statement.(l) This species of evidence is very commonly used in criminal cases, al- though it appears to be somewhat inconsistent to hold, that the prisoner's silence on hearing an accusation is evidence against him, when his denial of the charge upon such an occasion would not be evidence for him. On the principle that the evidence is received, not on the ground of credit given to the hearsay narrative, but on the ground of its apparent effect in the prisoner's demeanor, it has been held, that what is said in the presence of a prisoner by a third party, or even by his wife, is receivable in evi- dence against him.(2) A notice to quit at a certain time is admissible as evidence that the ten- ancy commenced at that period, if the notice was served personally on the tenant, and if he made no objection to the time of quitting mentioned in the notice.(3) The circumstance of his not making such an objection has been considered ds, prima facie evidence of admission and acquiescence. But if the notice were not served personally, or the tenant did not look at the notice, or could not read, there is no presumption of acquiescence.(4) Upon the same principle, upon an indictment for murder against A., for acting as second in a duel, wherein B. was killed, where a card had been given to a witness, either by the deceased or by another person, in the presence of the prisoner, but its contents were not shown to have been communicated to him, it was ruled that the card was not admissible in evidence.(5) The demeanor and conduct of a bankrupt, pending the investigation of his accounts before commissioners of bankrupt, may amount to an admis- sion of a petitioning creditor's debt, though what was done before the commissioners did not derive any authority from its being done before them as commissioners or as arbitrators.(6) It has been held that a trader. (1) See by Parke, X, in Hayslep v. Gymer, 1 A & E. 165, and by Patteson, J., Id. (2) R. V. Smithies, 6 0. & P. 332 ; R. v. Bartlett, 7 C. -. "Welch, 5 Id. 277 ; Corser v. Ciaig, 1 Wash. C. C. Rep. 424 ; Bholen v. Cleveland, 5 Mason, 174 ; Green v. Darling, 5 Mason, 201 ; Wistar v. "Walker, 2 Browne, 166 ; M'CuUum v. Coxe, 1 DaU. 139 ; Field v. Biddle, 2 DaU. 172, note ; Steele v. The Phoenix Ins. Co., 3 Binn. 306 ; Canby v. Eidgway, 1 Bum. 496 ; "Wheeler v. Hughes, 1 DaU. 23 ; Ingles v. Ingles' Ex'rs, 2 DaU. 49 ; Eundle v. Ettwein, 2 Yeates, 23 ; Solomon v. Kimmel, 5 Bmn. 232 ; Bury v. Hartman, 4 Serg. * Eawle, 177 ; Brindle v. M'llvaine, 9 Serg. & Eawle, 74; Buchanan v. Taylor, Addis. 155 ; Aldricks v. Higgins, 16 Serg. & Eawle, 212; Boulden v. Hebel, 17 Serg. & Eawle, 312; Metz- gar V. Metzgar, 1 Eawle, 227 ; Stevens v. Stevens, Ashm. 190; Perkins v. Pai-ker, 1 Mass. Eep. 117; Andrews v. Herring, 6 Mass. Eep. 210; Boylston v. Boylston, 8 Mass. Rep. 465; Dawes V. Boylston, 9 Mass. Eep. 337 ; Crocker v. "Whitney, 10 Mass. Rep. 316; Jones v. "Witter, 13 Mass. Rep. 304 ; Sergent v. Essex Railway Corporation, 9 Pick. 202 ; Parr v. Hemmingway, 2 Const. Eep. 753; Wadswonh v. Griswold, 1 Harp. Law Eep. 17; Stoney v. M'NoU, 1 Harp. Law Rep. 156; Smith v. Lyons, 1 Harp. Law Rep. 334; Ware v. Key, 2 M'Cord, 373; Strong V. Strong, 2 Aik. 373; Lampson v. Fletcher, 1 Verm. 168; Tichout v. Cilly, 3 Verm. Rep. 415; Clark V. Bogers, 2 Greenl. Eep. 143; Bobbins v. Baoon, 3 Id. 346; Swett v. Green, 4 Id. 386; SKC. X.J Verbal Admissions. 483 Dunning v. Saj-ward, 1 Id. 366 ; Moody v. Towle, 5 Id. 415 ; Sumner v. Steward, 2 N. H. Eep. 39; Carlin r. Dumartrait, 8 Mart. Lou. Eep. QS. S.) 212; Triplet v. Bradley, 6 Monroe, 355; SohooUng V. M'Gee, 1 Id. 232, 233 ; Robtina t. HoUey, Id. 191, 195 ; Talbot v. Cook, 7 Id. 438, 439 ; Clark v. Boyd, 6 Id. 294; Rawlins v. Timberlake, Id. 234; Sharp v. Ecclea, 5 Id. T2; Har- rison T. Burgess, Id. 420; Armstrong v. Flora, 3 Id. 46; M'Cormaok v. Smith, 3 Id. 432 ; Num- lin V. "Westlake, 2 Ham. Rep. 24, 25 ; Clark v. Boyd, Id. 60 ; M'Cutohen t. Keith, Id. 262 ; Sheftall's Adm'r v. Clay's Adm'r, Charlt. Rep. 229 ; Barrow T. Bispham, 6 Halst. Rep. 110, 116. A debtor who promises the assignee to pay him, may be sued in the name of the latter as plaintiff at the common law. Tierman v. Jackson, 5 Pet. Rep. 580 ; Currier v. Hodgdon, 3 N. H. Rep.' 82 ; Pairlie v. Denton, 8 Barnw. & Cress. 395 ; "Wiggiu t. Damrell, 4 N. Hamp. Eep. 69. But such promise, if made after the assignment, will not conclude against a good previous defence; for it is nudwnpactwn. Ludwick v. CroU, 2 Teates, 464 ; Clay v. Johnson, 6 Monroe, 661. Otherwise, if the assignee be induced to take the chose in action by the acknowledgment or promise of the debtor. Ludwick v. CroU, 2 Teates, 464; Games v. Keld, 2 Teates, 541 ; Weaver v. M'Corole, 14 Serg. & Eawle, 304; Morrison's Adm'r v. Beekwith, 4 Monroe, 73; Davison v. JPranklin, 1 Barnw. & Adolph. 142. Or merely stand by and see it assigned and conceal the defence. Buchanan v. Taylor, Addis. 155. In equity, m one case, it was held that the assignee of a bond, without notice of an original equitable defence against it, could not be met with that defence ; that, being an innocent pur- chaser, he did not take subject to an equity existing at the time of the purchase, nor indeed when the bond was executed. M'Farlane v. GrifEth, 4 Wash, 0. C. Eep. 585, 587. This case was, however, confessedly contrary to all the authorities in Pennsylvania, both at law and in equity ; and is conceived to be quite anomalous. Barrow v. Bispham, 6 Halst. Eep. 110, 116 ; Metzgar V. Metzgar, 1 Eawle, 227, with many of the cases supra. According to Tichout v. Cilly (3 Term. Eep. 415), an assignor in whose name an action is prosecuted, is accountable for any abuse of the process, the same as if he were the real party. The admission of a trustee before he came to the trust, e. g. the assignee of a bankrupt (Fen- wick V. Thornton, 1 Mood. & Malk. 51), or of a now executor, made before he became such, is not admissible against him. Plant v. M'Ewen, 4 Conn. Eep. 544. See 3 Eand. 399, 407, 408, 409. And an administrator's admission is never receivable against the estate, to charge it de ionis mtestaioris. Ciplea v. Alexander's Adm'r, 2 Const. Eep. 767. But where he is plaintiff, his admission shall be received against him. Hill v. Buckminster, 5 Pick. 391. And in another case the admission of an executor defendant was received against him. Cobb v. Lunt, 4 Greenl. 603, 507. In other cases, it is held that an executor's admission of his testator's debt shall not even take it out of the Statute of Limitations. Peck v. Bottsford, 7 Conn. Eep. 172, 178, ei seq. ; Thompson v. Peters, 12 Wheat. 565, And see Mooers v. White, 6 John. Ch. Eep. 372. The case of Emerson v. Thompson (16 Mass. Eep. 429, 431), is directly contra as to the Statute of Limitations ; and indeed recognizes the admissions generally of an executor or administrator, as evidence against him. And it was held in another case, that his a,dmiasion was evidence, against him on trial of an issue to establish the will. M'Craine's Executors and Devisees v. Clarke, ,2 Murphy, 317. The rule admitting the confessions of "the party in interest follows the doctrine which has been partially considered and illustrated, that the cestui que trust or assignee is the real party in the suit ; his admissions and his acts are those of the party, and are of course all evi- dence against him ; he has the complete control and may confess away or release the subject matter of the suit, or discharge or impair his claim in any way. Thus, the lessor of the plaintiff, being the real party, may bind himself, and those claiming under him, by his acts. Jackson ex dem. Goodrich v. Ogden, 4 John. Rep. 140. The defendant may call the plaintiff's attorney in court as a witness, and as'ic him .who retained him, in order to show the real party, and so let ill his declarations. Levy v. Pope, 1 Mood. & Malk. 410. In assumpsit by Kemble, on an agreement purporting to have been made with him on behalf of himself and the other proprietors of Covent Garden Theatre, the admissions of Willett, another co-proprietor, were held admissible in evidence against the plaintiff. They are like the admis- sions of a principal against a broker, suing on a policy of insurance. Kemble v. Farren, 3 Carr. & Payne, 623. So on a bond taken by A., the plaintiff, in trust for B., the admission of pay- 484: Admissions by Parties, [CH. VIII. Admiasioii by party suing for benefit of another. In the case of Bauerman v. Rademus,(l) -wliicli was an action by the shippers of goods against the captain of a ship, for not delivering the goods 4n proper condition, a letter, written by the plaintiffs, was giyen in evi- dence on the part of the defendant, in which they entirely exculpated the defendant from all misconduct ; and it appeared, also, from the letter, that the goods were shipped on the risk of third persons, and that the plaintiffs were not really interested in the suit ; the counsel on the other side con- tended that the parties really interested ought not to be concluded by the admission of the plaintiffs, who were merely nominal parties in the action ; Lord Kenyon, C. J., was of a different opinion, and the plaintiffs were non- suited. The Court of King's Bench afterwards af&rmed the nonsuit. Lawrence, J., on that occasion, said : " The persons on whose risk the goods were shipped, are in this difficulty ; the present plaintiffs either have or have not an interest; but it must be considered that they have an interest, in order to support the action ; and if they have, an admission made by them, that they have no cause of action, is admissible evidence. I have looked into the books, to see if I could find any case in which it has been holden that an admission of a plaintiff on the record was not evidence, but have found none." In Alner v. George, (2) it was held that a receipt in full, given by the ment by the latter, is evidenoe against the plaintiff. Calvin v. Hamilton, 4 Wash. C. C. Eep. 92. And in an action against the sheriff for a false return upon a junior yZ. fa., on the ground that the senior _/5. fa. of R. & H., under which he sold, was dormant and fraudulent, though the declarations of R. & H. were held inadmissible to charge him ; yet Marcy, J., said, if they had indemnified the sheriff, and thus became parties in interest, their admissions would have been receivable against him. Benjamin v. Smith, 4 "Wend. Rep. 332, 335. But the declarations of a person named as executor and devisee in a paper, purporting to be a last vrill, are not evidence to impeach it in a suit to which he is not a nominal party, though the event depend on the validity of the paper as a last wiH. Lightner v. "Wike, 4 Serg. & Rawle, 203 ; Bovard v. Wallace, Id. 499, S. P., as to a devisee. On an issue of devisavit vd non, the admissions of a devisee to whom all the estate was devised for life, except some trifling legacies with remainder over, were offered in evidence to prove the testator's insanity. The court said the parties here are merely nominal, and the devisees are the real parties, but others are interested, and the testimony was excluded for that reason ; though the court admitted it would have been receivable, if the devisee, making the admission, had taken the whole intere^ under the will. They said the finding of the issue would be conclusive on others, as to the personal estate ; though it might not as to the real. Nusaear v. Arnold, 13 Serg. & Rawle, 323, 328, 329. Vide a like point, Phelps v. Hart well, 1 Mass. Eep. 71. But quere. See Atkins v. Sanger, 1 Pick. .192 ; though the court said the latter ease did not interfere with Phelps v. Hartwell. In an action by the holder of a negotiable promissory note for $150, pledged to the plaintiff by S. for $50 or $60, agaiust the maker, held, that the defendant could not give S.'s declarations in evidence to defeat the action. Butler v. Damen, 15 Mass. Rep. 223. (1) 7 T. R. 663. See also Oraib v. D'.^th, Id. 670, n. ; Alner v. George, I Camp. 392 ; Gib- son V. "Winter, 6 B. * Ad. 96. (2) 1 Camp. 392. See Gibson v. Winter, 5 B. & Ad. 96. The proper remedy is by application to the equitable jurisdiction of the court ; by Lord Ellenborough, 0. J., 1 Camp. 393. Where a nominal party gives a release, the courts will soi»><»timea order it to be delivered up. Payne v. SBC. X.J Parties to the Record. 485 plaintiff on the record, could not be invalidated at the trial, by showing that the plaintiff had assigned all his interest, and was a mere trustee, and that the receipt was fraudulently given. It has been seen that it is com- petent to a party to the record, who has given a receipt, to show that it was given under misrepresentation or misapprehension ;(1) but, in the case under consideration, the evidence would be offered on behalf of persons who were not parties to the record, for the purpose of showing a fraud be- tween those who were so. The rule in question does not apply to cases where an infant sues by his guardian or prochein ami: the declaration of such a party will not, in general, be admissible against the infant, (2) for the guardian or prochein ami is to be considered as an officer of the court, specially appointed by them to look after the interests of the infant,(3) and who acts, in fact, as his attorney .(4) Admissions, however, made by such a party, especially for the purpose of the cause, would stand upon another ground, and be considered in the same light as similar admissions made by the attorney in the cause.(5) But it has been held that the answer of the guardian of an infant defendant in chancery, cannot be read against the defendant in another suit ;(6) though being made by the guardian upon oath, it may be used against himself, where he sues or is sued in his private capacity. (7) Rogers, Doug. iOI ■ Legh v. legh, 1 B. i P. 44T ; Innell r. Newmaii, 4 B. & A. 419 ; Hickey V. Burt, 1 Taunt. 48 ; Mountstephen v. Brooke, 1 Chit. E. 390 ; Manning v. Cox, 7 Moo. 617 ; Barker v. Richardson, 1 T. & J. 362. But in Phillips v. Clagett (11 M. & "W. 93), Parke, B., doubted whether the court had any authority to make such an order, and considered the proper course to be, not to allow the release to be pleaded. See also Crook t. Stephen, 5 N. C. 688 691 ; Wild v. "Williams, 6 M. & W. 490 ; Jones v. Herbert, 7 Taunt. 421 ; Arton v. Booth, 4 Moo. 192 ; Herbert v. Pigott, 2 0. & M. 384 ; Rawstorne v. Gandell, 15 M. & W. 304. The fact that the plaintiff sues as a trustee does not ordinarily exclude his admission. Tenuy V. Evans, 14 N. Hamp. 343 ; Franklia Bank v. Cooper, 36 Maine, 180. But the admissions of a nominal plaintiff, who has parted with his interest in the cause of action, are not admissible. Dazey V. Mills, 5 Gilman, 67. And the rule is well settled in this country, as stated in a previous note, that the admissions of an assignor, made after his assignment, are not receivable in evidence against his assignee. Prear v. Evertson, 20 John. R. 142 ; The State v. Jennings, 5 Eng. 428 ■ 17 Mis. (2 Bennett) 284; GiUighan v. Tibbetts, 33 Maine, 360. And what is a receipt but an admission of payment ? The assignment divests the assignor of all interest in or control over the thing assigned. Beck with v. The Union Bank, 5 Sold. 211 ; contra, the assignment of an account is not complete, as against the debtor, until notice is given to him. Loomis & Jackson v. Loomis 26 Vt. 198 ; 14 Conn. 141. . Till then a receipt by the assignor will be good as against the as- signee. Campbell v. Day, 16 Vt. 558. (1) Vide mpra, p. 474. (2) Cowling V. Ely, 2 Stark. R. 366 ; "Webb v. Smith, Ry. & M. 106. See James v. Hatfield, 1 Stra. 548, contra. (3) By Parke, B., in Morgan v. Thome, 7 M. * W. 400, 408. (4) By Alderson, B., Id. And see by Pollock, 0. B., in Sinclair v. Sinclair, 13 M. & W. 640, 646. (5) Infra. (6) Bccleston v. Spoke, 3 Mod. 258 ; S. C. nom. Bocleston v. Petty, Garth, 79. (7) Beasley v. Magrath, 2 Sch. & Lef. 34. 486 Admissions hy Parties, [CH. Vill. Admission by persons beneficially interested. The second branch of the rule as to admissions by the person really in- terested in the suit, though not a party to the record, is rather more diffi- cult of application. In an action by trustees, if it distinctly appears, that the cestui que trust alone is entitled to the benefit resulting from the action, his statements will be admissible in evidence for the defendant ; but in order to render such statements binding upon the plaintiff, the nseture of his interest in the trust estate must be shown.(l) In an action of debt upon a bond conditioned to pay money to L. D., for whose benefit the action was brought,(2) the defendant proved that L. D. had said, in a conversation respecting this bond, that the defendant owned nothing, upon which the jury found for the defendant. On a mo- tion for a new trial, it was argued that the declarations of L. D., who was not a party to the action, ought not to afffect the plaintiff; but the court said that the case was to be considered as if L. D. was the plaintiff, the ac- tion being for L. D.'s benefit. "Where A. deposited a sum of money with B. to distribute amongst A.'s creditors in proportion to their claims ; it was held in an action by C. against B., that A.'s declaration was evidence to show that C. was his creditor to a specific amount.(3) In trover for a deed, which the defendant admitted he detained for a third party, and in the detention whereof the latter was substan- tially interested, the declarations of such party were held to be ad- inissible.(4) An action upon a policy may be brought in the name of the person who effected it, though he be not the person interested : yet the persons inte- rested are so far looked upon as parties to the suit, that the declarations of any of them are admissible in evidence against the plaintiff.(5) In an action by the master of a ship for freight, the declarations of the owner of the ship are admissible against the plaintiff, as the action is brought for the owner's benefit.(6) In the case of Hart v. Horn, (7) which was an action of replevin. Heath, J., rejected the declarations of the person under whom the defendant made cognizance ; but it may be doubted whether this case would now (1) May V. Taylor, 6 M. A G. 261. See also Doe d. Rowlandson v. Wainwright, 8 A. & E. 691. (2) Hanson v. Parker, 1 Wils. 257. See Davis v. Dinwoody, 4 T. S. 618. (3) Eobson v. Andrade, 1 Stark. R. 312 ; S. C, 2 Chit. E. 263. (4) Harrison v. Tallanoe, 1 Bing. 45. And see by Bayley, J., in Sparge v. Brown, 9 B. & 0. 938. (5) By Lord Ellenborough, 0. J., in Bell v. Ansley, 16 East, 143. See also Bell v. Smith, 6 B. & 0. 188. (6) Smith V. Lyon, 3 Camp. 465. (V) 2 Camp. 92. SEC. X.] Persons beneficially Interested. 487 be acted upon, especially since Lord Denman's Act, as the conusor in re- plevin is the party substantially interested in the case.(l) "With respect to admissions by rated parishioners, it seems that upon an appeal against an order of removal, where the parochial oflS.cers are the nominal parties, the declarations of a rated inhabitant of the appellant parish are evidence against that parish, without calling the inhabitant, and showing that he refused to be examined.(2) (1) As to the admiSBibility of declarations, made by the indoraer of a hill while he waa holder, in an action against a subsequent holder, see Walstead v. Levy, 1 Mo. & R. 438. (2) R. V. Whitley Lower, 1 M. & S. 636 ; E. v. Hardwicke, 11 East, 579 ; R. v. Wobum, 10 East, 395, 402. Before the 54 Geo. Ill, o. IVO, the admissions of rated parishioners were received on account of their being parties to the suit. See also 3 & 4 Vict. o. 25 ; 6 & Y Vict. c. 85. The The statutes which render parishioners competent witnesses, do not interfere with the rule of evidence respecting admissions, as the statutes do not render it compulsory upon such persons to give evidence. See R. v. Adderbury (East), 5 Q. B. 187. In the case of London (Corporation) V. Long (1 Camp. 22), where the question related to the powers ot a city ofBcer, Lord EUenbo- rough, C. J., held, that the declarations of an indifferent individual of the corporation were not swlmiasible, but that he would admit what the officer himself had been heard to say upon the subject. NoTB 134 — The admissions of corporators and quasi corporators, in the United States, are re- ceived or rejected upon much the same principle as governs in respect to admissions of agents. "We have seen mte, that in quasi corporations, or where the corporation has a public object, the corporators are often considered competent witnesses for or against the corporation, or in other words, the civil division of the state. Of course their admissions a,re not receivable like those of rated inhabitants in England, which, as intimated in the text, would not be received even there, since the statute making the corporators witnesses. The cases and authorities which follow are thrown together for the purpose of illustrating the principle on which the admissions of private corporators are received. As to their competency to testify, see also ante, note 21. In the Hartford Bank v. Hart (3 Day, 491), charging him as indorser to the plaintiff of a note, tjie defendant offered in evidence the confessions of the president and directors of the bank, that they knew the indorsement to be a forgery when they received the note. The court held, that their confessions were those of individual corporators, and like those of any other stockholders, and therefore not receivable ; though their declarations as a board, whUe acting on the subject as agents for the bank, would be receivable like the declarations of any other agent which are a part of the res gestos. By a statute of New York, "In suits by or against an aggregate corpora- tion, the admission of any member thereof not named on the record as a party to auch suit, shall not be received as evidence against such corporation, unless such admission was made concern- ing some transaction in which such member was the authorized agent of such corporation." 2 R. S. 407, § 80. But it will be perceived by the above and other cases, that the admission of the agent is not then receivable, unless his admission is part of the res geske. For where, in an ac- tion of assumpsit for the money in a bag of dollars, against the President, Directors and Company of the City Bank of Baltimore, the court below received evidence of the president's declaration or admission, that a bag of dollars, which was afterwards taken into the bank by one of the directors and converted, was the property of the plaintiff; it was held, on appeal, inadmissible; not being part of the res gestce, but an independent disconnected admission of a past transaction ; and this though the president was a part of the defendant's name on the record ; for this was but a part of the name of the corporation. He was a mere agent, and should have been called as a witness. The City Bank of Baltimtore-v. Bateman, 7 Har. & John. 104. But in assumpsit for ten kegs of dollars, against a bank, the plaintiff proved that they, being brought to the bank against the plaintiff's will, were paid out for the debts of the bank by direction of H. & B. president and cashier ^ro tempore; and this was held admissible, though H. 4; B. were both within reach of the process of the court ; because a president and cashier of a bank may direct money in the 488 Admissions ly Parties, [CH. viil. A creditor who has indemnified a sheriff, for making a seizure under a "writ of execution, is considered as substantially the defendant, in an action brought against the sheriff on account of the seizure ;(1) on the ground that the sheriff, by his conduct, substitutes himself for the original defend- ant.(2) In like manner, admissions by an under-sheriff, tending to charge himself, are admissible in an action against the sheriff for the misconduct of his under-sheriff, as for an escape.(3) So in an action by the assignees of a bankrupt, where it was proved that the defendant had stated that he had been indemnified by the bankrupt, it was ruled that statements made by the latter were admissible on behalf of the plaintiffs.(4:) Person whose Kability is in issue. Admissions made by strangers to a suit are also sometimes received in evidence, where the question in the suit is whether a particular claim bank to be paid out for the debts of the institution. The City Bank of Baltimore v. Bateman, 1 Har. & John. 104. In ejectment for land claimed by the defendant in behalf of a reUgious corpo- ration, the declaration (an ex parte affidavit) made by a member and one of the trustees of the corporation, was offered in evidence by the plaintiflf against the corporation. Held inadmis- sible. The court say the evidence was not of an act of the agent of the corporation, or a decla- ration while transacting the business of the corporation ; but of confessions made afterwards. An agent is authorized to act ; and therefore his acts explained hy his declarations during the time of action, are obligatory on the principal ; bu^ he has no authority to Tndke confessions after he has acted. MagUl v. Kauffman, 4 Serg. & Rawle, 317, 321. A corporation will not be affected by a declaration of one of its members as to what had passed at a meeting of the congregation. This would be but hearsay evidence. What passed should be proved by the oath of some person who was present, unless it was reduced to writing ; and then that would alone be admissible. Magill T. Kauffman, 4 Serg. & Eawle, 317, 321. In an action by a bank on a single bill, the defendant offered in evidence the admissions of the officers of the bank, of what they they told a witness as to the manner in which the debt was to be discharged. Held inadmissible, it not appearing that such declarations were authorized by the board of directors. Stewart v. The Huntington Bank, 11 Serg. & Rawle, 267, 269. In an action by a bank against an indorser on a note, a receipt given by the president to the defendant, of money received to be deposited in the bank to the credit of the defendant, is evidence of payment, though the president simply signed his name without adding his title as president ; but not conclusive. It is open to explanation, as if the money was delivered to the president in his private character, to be deposited, and never reached the bank. Sterling v. The Marietta & Susquehannah Trading Company, 11 Serg. & Rawle, 179, 180, 181. The declarations of the ex-president of a bank that payments had been made to him on a note belonging to the bank, are not admissible evidence against the bank. SterUng v. The Marietta & Susquehannah Trading Company, 11 Serg. & Rawle, 179, 181. An insurance com- pany took a respondentia bond. A correspondence between the obligor and a director, by whose letters it was sought to impeach the bond, was held inadmissible. Atlantic Ins. Co. v. Conard, 4 "Wash. C. C. Rep. 663, 667. The affidavit of the president made to postpone the trial of the cause, stated facts which made against the corporation ; but held inadmissible. Kemp v. The Baltimore Fire Ins. Co., 2 GUI & John. 108. The declarations of a cashier, that the directors had given time on a note, were held inadmissible against the bank. Grafton Bank v. Woodward, 5 N. H. Rep. 301. See also Husaok v. The Coll. of Physicians, Ac, 5 Wend. Rep. 547. (1) Dyke v. Aldridge, cited 7 T. R. 665 ; 11 East, 584, n. ; Proctor v, Lainson, 7 C. & P. 629. And see Dowden v. Fowle, 4 Camp. 38 ; Toung v. Smith, 8 Esp. 121. (2) By Richardson, J., in Goss v. Watlington, 3 B. & B. 136. (3) Snowball v. Goodricke, 4 B. & Ad. 461, post. \i) Arkle v. Wakeman, 1 C. & K. 516. SEC. X.] By Bankrupts. 489 might have been enforced as against those strangers. Thus it has been held, that on a plea in abatement for the non-joinder of A. B. as a defend- ant, his declarations before action brought were evidence in support of the plea ;(1) on the ground, that whatever would be evidence in an action brought against him to prove him liable, might be received to prove his liability on this issue.(2) So in an action against a sheriff for not arresting a debtor, or for allowing him to escape, statements made by the debtor acknowledging the existence of the debt, are evidence against the defend- ant; (3) the sheriff in this case also being put in the place of the debtor, as to the creditor who sues him for a breach of duty. (4) Apparently on the same principle, the admissions of bankrupts, or en- tries in their books, made before the act of bankruptcy, are receivable in evidence, to prove the petitioning creditor's debt,(5) or the state of the bankrupt's affairs,(6) the assignees having only to prove their title as against the bankrupt. (4) But admissions by a bankrupt, made after the act of bankruptcy, are not receivable for this purpose, though they are evidence against himself.(7) But these cases are exceptions to the general rule, and their principle is not to be extended. Thus, upon an issue directed under the Interpleader Act, between the claimant of certain goods and the execution creditor, where the plaintiff claimed the goods under an assignment made to him by the debtor as a security for previous advances, it was held that an admission made by the (1) Clay V. Langslow, M. & M. 45. r (2) See also hj Parke, B., in Coole v. Braham, 3 Exoh. R. 183. (3) Sloman t. Heme, 2 Esp. 695 ; Gibbon v. Coggan, 2 Camp. 188 ; 'Williama v. Bridges, 2 Stark. B. 42 ; Kempland v. Maoauley, Peake, 65 ; by Bayley, J., in Rogers v. Jones, 1 B. & C. 89. (4) By Parke, B., in Coole v. Braham, 18 L. J. (N. S.) Exch. 106. (5) Watts T. Thorpe, 1 Camp. 316; Hoare v. Coryton, 4 Taunt. 660; Taylor v. Kinloch, 1 Stark. E. 175; 2 Id. 594; Robson v. Kemp, 4 Esp. 234; Ewer v. Preston, Rep. temp. Hard. 378. See also Evans v. Lake, B. N. P. 282. (6) Belcher v. Brake, 2 C. & K. 658. (7) Smallcombe v. Bruges, 13 PrL 136 ; Taylor v. Kinlooh, ut supra ; Sanderson v. Laforest, 1 C. & P. 46 ; Jarrett v. Leonard, 2 M. & S. 265. In Parker v. Barker (1 B. & B. 9), a bankrupt's admissions that he was in partnership with a trader were received as proof of the trading. But the propriety of this decision was doubted in Bromley v. King, R. & M. 228. It may be observed, . that in an action by assignees, the question as to the petitioning creditor's debt is, whether it could have been enforced against the bankrupt, which point the admission clearly establishes. The bankrupt's declarations before the act of bankruptcy may be used against the assignees to show coUusion, as part of the res gestce. Thompson v. Bridges, 8 Taunt. 336. And a bankrupt's declarations, that a bill would not be paid, has been admitted, to supply proof of notice, where the admission was made after bankruptcy and before the issuing of the commission. Brett v. Levett, 13 East, 213, cited 1 Stark. R. 176. But at the period of that decision (as appears from the case of Dowtofi v. Cross, 1 Esp. 168, there cited), a bankrupt's declarations were admitted, to prove the petitioning creditor's debt, if made at any time before the comttiission issued. See Schooling v. Lee, 3 Stark. E. 151 ; Marsh v. Meager, Id. 353 ; Bemasooni v. Farebrother, 3 B. & Ad. 372. 490 Admissions hy Parties, [CH. viil. debtor, before the assignment, in the absence of tlie defendant, was not re- ceivable in evidence for the plaintiff.(l) In one case the admission of a petitioning creditor, as to the amount of his debt, was held to be receivable in evidence against the assignees of a baEkrupt.(2) It does not appear from the report of this case, whether the admission was made before or after the commission ; and Patteson, J., in a later case(3) observed npon it, that it was loosely stated, and that he could not but think that the declarations must have been made before the commission. In cases of this description, the issue appears to be, what were the mutual rights of two persons (one or both being strangers to the suit), at a particular period ; which inquiry seems to let in such evidence as would have been receivable between those persons. In the last example, however, it is not clear that the decision did not turn on the point that the assignees were liable to be affected by admissions of the petitioning creditor, because he was a privy in estate. In the case of Harwood v. Keys,(4) it was ruled, that the declarations of a deceased petitioning cred- itor, made after the commission, were not evidence against the assignees, in an issue directed to try whether the commission was concerted between the petitioning creditor, the bankrupt, and the attorney ; the petitioning creditor, it was said, could not be taken to be the real party interested in the cause ; and the result of the trial, if the verdict were for the plaintiff, would not necessarily be the superseding of the commission, the issue being merely a proceeding to satisfy the chancellor's conscience. Admiasion by party in different capacity. An admission may have been made by a party to a record when in a different capacity from that in which he is concerned as regards the suit ; and it seems to have been considered, in such a case, that his former admission ought not to be evidence against him ; for the change which has taken place in his interest, his means of knowledge, and his powers of acting, show that his former admission is not a safe criterion of the truth of the claim or defence which he is at present setting up. And the injus- tice of allowing his former admission to be used against him may appear to be the greater where, by the change of his situation, he has become the representative of the interest of others, with whom, in his former situation, he had no privity. Thus, it was ruled by Lord Tenterden, 0. J., in the case of Fenwick v. Thornton,(5) that the declarations of a person, made before he became assignee of a bankrupt, are not evidence against him, when suing as such (1) Coole V. Braham, 3 Exoh. R. 183. (2) Young V. Smith, 6 E?p. 121. (3) Harwood v, Keys,, I Mo. & R. 205. (4) TJtawpra. (5) M. & M. 51. SEC. X.] Made in different Capacity. 491 assignee. In the later case of Smith v. Morgan,(l) however, Tindal, C. J., admitted similar evidence, and observed that such a distinction was new to him, the general rule being that the declarations of a party to the record ' are evidence. The case of Fenwick v. Thornton does not appear, how- ever, to have been brought before his Lordship's notice ; and it is appre- hended that the ruling of Lord Tenterden, 0. J., in that case, is the more correct, for the reasons above stated.(2) Admission by one party evidence against another jointly interested. It appears to be a general principle, that in a civil suit by or against several persons, who are proved to have a joint interest in the decision, a declaration made by one of those persons, concerning a material fact with- in his knowledge, is evidence against him, and against all who are parties with him to the suit.(3) In an action of covenant against two defend- (1) 3 Mo. & R. 257. (2) As to declarations of a guardian or prochem amd, see awpra, p. 485. This rule may be illiistrated by the doctrine, of estoppels. A woman is not estopped, after coverture, by an admis- sion upon record by her husband and herself during coverture. See Hodgson v. Merest, 9 Pri. 563; Elston v. "Wood, 2 Myl. & K. 618. An heir claiming as heir of his father is not estopped by an estoppel upon him as heir to his mother. A party suing as executor, in an action of debt upon a bond, ia not estopped by having been barred by an action on the same bond, vfhen he sued as administrator. Robinson's Case, 5 Co. 32 b ; Com. Dig. tit. Estoppel C ; Wrottesley v. Bendert, 3 P. Wma. 237 ; Barron v. GreUard, 3 V. & B. 166. (3) By Le Blanc, J., 11 East, 589. See also Whitcomb v. Whiting, 2 Doug. 662. The rule in New York is different : the admission of one of two joint debtors, o. g. joint makers of a promissory note, who are not partners, does not bind the other. Lewis v. 'Woodworth, 2 Comst. 512. When the joint debtors are also partners, they are by such association constituted agents, one for the other, in relation to the partnership business. 1 Greenl. Ev. §§ 112, 114. But when they are only jointly liable, it is difBoult to see upon what principle the act or admis^ sion of one of them should be held binding upon the other. Clearly neither of them has any authority from the other to change the character of the debt, or create any new obligation to pay it, much leas to make for him a new contract. Accordingly, it is settled in this state that an ad- mission by one of several partners, made after dissolution of the firm, wiU not revive a debt against the firm that has been barred by the Statute of Limitation. Van Keuren y. Parmelee, '2' Oomst. 523. The rule stated in the text has been followed to a hmited extent in Massachusetts (Cady v. Shepherd, 11 Pick. 400 ; Bridge v. Gray, 14 Id. 55; Sigourney v. Drury, Id. 381, 391 ; Vinal v- Burrill, 16 Id. 401) ; in Connecticut (Bond v. Lathrop, 4 Conn. R. 336 ; Coit v. Tracy, 8 Id. 268 ; Austin v. Boatwick, 9 Id. 496 ; Clark v. Sigourney, 11 Id. 511); in Maine (Parker v. Merrill, 6 Greenl. 41; Pike v. Warren, 15 Maine, 390; Dinsmore v. Dinsmore, 21 Id. 433; Sh«pley v. Waterhouse, 22 Id. 491) ; and in Vermont (Loomia and Jackson v. Loomis, 26 Yt. 198). In North Carolina and Georgia, the promise of a partner after dissolution, if made before the debt was barred by statute, will prevent the operation of the statute. Mclntire v. Oliver, 2 Hawks. 209 ; Brewster v. Hardeman, Dudley, 138. But after the debt has been barred, such new promise will not revive the debt as against the other partners. So held in many of the states. Brewster r. Hardeman, mpra; Steele v. Jennings, 1 McMullen, 291 ; Lawther v. Ohappel, 8 Alab. R. 36»; Belote'a Ex'rs v. Wynne, 1 Terger, 534 ; Muse v. Donelson, 2 Humph. 166 ; Levy v. Cadet, 11 Sl A R. 126 ; Seeright v. Craighead, 1 Pen. & Watts, 135; Toudes v. Lefavour, 2 Blackf. 311 ; Bell V Morrison, 1 Peters, 351. Where the rule stated in the text prevails, it is necessary that it should appear that the defend- ants had aa existing joint interest when the admission was made, before it can be received in 492 Admissions by Parties, [CH. Vlil. ants,(l) the affidavit of one of tliem was held to be evidence against both. But unless there be a joint interest in the decision, the admission of one defendant will not be receivable against a co-defendant. Thus, in gen- eral, the answer of one defendant in chancery is not evidence against his co-defendant; if it were otherwise, a plaintiff might make one of his friends a defendant.(2) But this exception does not apply where the co-defendants have a joint interest in the transaction, as in the case of partners, or where one de- fendant claims through the other, whose answer is offered in evi- dence.(3) Thus, where the obligee of a bond filed a bill against two joint and sev- eral obligors, alleging that the bond had been delivered up to one of them by mistake, and praying that he might recover the amount due on it, an admission by the party to whom the bond was given up, that it had been delivered to her by mistake, was held to be evidence against the co-obli- gor, though the joint answer of the defendants had traversed the allegation as to mistake, and simply admitting the delivery of the bond, had stated that the party to whom it was given up had destroyed it,(4) But even where parties have been partners, the answer in chancery of one who has previously retired from the firm, and ceased to have any interest therein, is not admissible in evidence against the continuing part- ners, although it relates to transactions with the firm which occurred at a time when the retired partner was a member.(5) evidence against the others. Borwell & al. v. Blackman, 12 Geo. 591 ; Blakeney v. Ferguson, 17 Ark. 641. See Tillinghast t. Nourse, 14 Geo. 641. (1) Vicary's Case, GUb. Bv. 61. (2) Wyeh v. Meal, 3 P. "Wms. 311. And see Jones v. Turberville, 2 Ves. 11 ; Morse v. Royal, 12 Yes. 355. The admission of one of several owners or tenants in common of a vessel does not bind the. others (MoLellan v. Cox, 36 Maine, 95) ; unless they navigate the vessel together. Blackstock V. Leidy, 19 Penn. State E. 335, 340. (3) See Pritohard v. Draper, 1 Buss. & Myl. 191 ; Petherick v. Turner, cit. 1 Taunt. 104. (4) Crosse v. Bedingfield, 12 Sun. 35. (5) Parker v. Morrell, 2 0. & K. 589. This was an issue directed by the Lord Chancellor. tTpon the hearing of the original cause, Knight Bruce, V. C, had allowed the answer to be given in evidence de bene esse. Upon an appeal before Lord Cottenham, 0., his Lordship said, it was contrary to the rule and practice of the court to read the answer of one defendant against the other, and that it appeared that the answer had been so used in the court below, and not as a statement made by a party whose admission would be evidence against the defendants. His Lordship added, that upoij the trial of the issue, which was to try the validity of a warrant of at- torney given by the plaintiff to the defendants and the party who had been » co-defendant in the chancery suit, if the answer should be tendered in evidence, its admissibility would be de- cided upon by the presiding judge. The issue was tried before Cresswell, J., who rejected the evidence. See also Petherick v. Turner, cit. 1 Taunt. 104. SEC. X.J By Partners. 493 In torts, admission by one defendant not evidence against another. In actions of tort, the admission of one co-defendant will not affect another co-defendant.(l) The rule is clear against the reception of such evidence in the case of persons jointly indicted, except in cases of con- spiracy.(2) (1) Daniels y. Potter, M. & M. 502, where the lax expressions of Lord Ellenhorough, 0. J., in K. V. Hardwicke, 11 Bast, 585, are qualified by Tindal, 0. J. See also Morse v. Royal, 12 Ves. 362. (2) By Lord Kenyon, C. J., in Grant t. Jackson, Peake, 204. Tide mfra, Confessions; supra, DeclaratioTis, part of the res gestce. , Note 135. — The nile as laid down in the text by Lord EUenborough, seems to have been fuUy sustained by the later cases in England, notwithstanding the reasons urged by the learned author in favor of its limitation. Thus, in false imprisonment, it was proved that the three de- fendants jointly had imprisoned the plaintiff; and he was allowed to prove what one said on the subject some weeks after, in the absence of the others ; Garrow, B., said, that after the defend- ants were eonnecte'd in the imprisonment, he must receive anything that either of them said as to the trespass, as evidence against aU. If this were not law, one going to commit a trespass might proclaim his malice in the market place, and yet shut out the evidence of it from the jury, by associating other persons a shade less guilty than himself. "Wright v. Court, 2 Carr. & Payne, 232. And where the plaintiff was arrested by one of the defendants, and in continuation of the imprisonment delivered to another, who held the plaintiff in custody, the acts and declarations of that other were held to be evidence against the former ; and that too, though by proving a dis- tinct act of imprisonment against the former, disconnected with the latter, the plaintiff precluded himself from recovering against the latter. Powell v. Hodgetts, 2 Carr. & Payne, 432. In the last, Garrow, B., before whom the cause was tried, said, " I take it, that in all cases where one person puts a party into the custody of another, what is said and done by that other is evidence against the person placing the party in custody, though said or done in his absence." This is a remark which would seem to apply by parity of reason, where one party commits a trespass in the wrongful taking of property, and places it in the hands of another. And where one idemni- fies a sheriff against an act which turns out to be a wrong, Maroy, J., said the admissions of the former were receivable to charge the sheriff. Benjamin v. Smith, 4 Wend. Rep. 335. See note 145. In ejectment against two, the admission by one, of a fact going to disprove an adverse posses- sion set up in the other, was refused. Bank of Kentucky v. WUliams, 2 J. J. Marsh. 256, 260. Four persons, P., W., & P., were sued for putting wine into a cellar in the public street, the cellar flap being so negligently placed that it fell and injured the plaintiff. P. suffered judgment by default ; P., who owned the premises, died before the trial : and as to the other three, at the time of letting down a hogshead of wine by them into the cellar, the flap fell and did the injury. An offer was made to prove a" statement by P., and it was claimed that it should be received as evidence against all three of the defendants. It was admitted that this would be evidence against P. ; but the judge denied that it was so against the others, there being here no common intent to do wrong, proved to exist among the defendants ; it was a mere case of negligence. Daniels v. Potter, 4 Carr. & Payne, 375 ; S. C, 1 Mood & Malk. 501. In an action of assault and battery against Metcalfe and several persons who were present when Metcalfe committed the assault, the court received evidence of Metcalfe's confession, that they aU came with intention to take a boy from the plaintiff with force ; but nothing appeared that this was in fact so, nor did the others take any part in the transaction. All being convicted on this evidence, the judgment was reversed. Metcalfe et al. v. Conner, Litt. Sel. Caa. 49Y. In trespass before a justice, one of two defendants, after the cause had been discontinued, consented to appear for himself and the other ; arid the declarations of the latter were given in evidence against both ; held inadmissible on error, for the latter was not a party. Stoddard v. Holmes, 1 Cowen's Rep. 245. Qitere, whether if he had been a party, his declarations would have been admissible against the other unless a part of the joint res gestae; or until the trespass had been otherwise shown to have been 494 Admissions by Parties, [CH. VIII. the oommon purpose of both. In either of the two latter cases, it seems the declarations -would have been evidence, whether the person making them had been a party on the record or not. Note 136. — The American cases will be found to furnish a very valuable illustration of the text as to the circumstances under which the acts and declarations of one who is porticos crmd- nis, may or may not be received to affect his copartners in guilt. First, as to the proof of their connection, which is always an essential preliminary addressed to the court. To let in the declarations of a co-conspirator against his fellow, it is enough that the conspi- racy be proved by one competent witness. The court will not decide on his credibflity. Com- monwealth V. Crowninshield, 10 Pick. 49T. Where it appeared that the prisoner said to the witness in presence of E., that one P. had offered him a sum of money if he would Mil "W. ; and •the prisoner told iP. he would give him an answer at a subsequent time ; that the prisoner offered the witness a third part of the money if he would commit the murder ; that E. proposed a mode of doing it ; that the witness declined having anything to do with it, and then the prisoner said he was in jest ; and in a, few days after, the murder was actually perpetrated by P. ; held suf- ficient proof that the prisoner and E. entered into the conspiracy, to let in the declarations of E. as evidence against the prisoner. Commonwealth v. Crowninshield, 10 Pick. 49^. Trespass by the plaintiff against the sheriff for levying on a negro under a,fi.fa. against Trigg, ■the plaintiff's brother-in-law, after he, being insolvent, had conveyed the negro, with eleven others, in trust, to satisfy a debt due to the plaintiff, and they had been sold to the plaintiff at ^auction, where there were very few bidders. The possession of the negroes was not changed till some time after ; and there were some other circumstances showing fraud in the trust sale. It was, therefore, offered by the sheriff to prove Trigg's private request to a bidder at the trust sale to forbear, for the plaintiff was bidding for his (Trigg's) benefit. Held admissible, the circum- stances showing, to the satisfaction of the court, a community of design between the plaintiff and Trigg to defraud Trigg's creditors ; that this being shown by circumstances of which the court were to judge, the declaration was admissible though the plaintiff was not present. Per Carr and Green, J's, in Clayton v. Anthony, 6 Eand. 285. So where a bond was given by the father to the son with a confession of judgment ; on an issue to try whether it was not intended as a fraud against creditors, they having proved a combination between the father and the son to defraud creditors; held that they might then give evidence of declarations of the father, made in the absence of the son, that the bond was given for the sole purpose of keeping off creditors, and that it was without consideration. Eeitenback v. Eeitenbaok, 1 Eawle, 362. So, where a ven- dor is left in possession of property, and exercises acts of ownership over it after sale, this proves a combiaation to defraud creditors, and his declarations are evidence against the vendee. Wil- bur V. Strickland, 1 Eawle, 458. See Willies v. Farley (B Carr. & Payne, 396), S. P., on the ground that, being in possession, the declaration is a part of the res gesioe. See also Babb v. Clemson, 10 Serg. & Eawle, 419, 426, 42T, with S. C, 12 Id. 328, 330. On trial of an indictment against the defendant for prosecuting the slave trade, the proof was that his captain of a vessel owned by him took on board various fitments for the trade at Balti- more (with the defendant's assent), and where he resided ; and that the defendant afterwards declared the vessel had made him a good voyage in that trade. EvidenceVas then received, that after the vessel had left Baltimore, having cleared out on a voyage and proceeded to St. Thomas, the cap- tain proposed to one Coit to employ him as mate on a voyage to the coast of Africa for slaves, and thence back to Cuba. Held admissible against the defendant, as a declaration coming from his agent in the enterprise, and made in the course of its prosecution, as part of the res gestoe, and as coming within the general scope of his authority. He had an implied authority to hire a crew, and do other acts necessary for the voyage. United States v. Gooding, 12 Wheat, 460, 468 to 410. The combination being established in the above or some other way, the cases are uniform that the confessions or declarations are received under the qualifications mentioned in the text. Thus, on a libel against goods as being forfeited by illegal exportation, in a trade with the Indians, the declarations and acts of the exporters' agent, ot of any one who acted in conjunction with the exporters in the course of their business, were held admissible as evidence against the goods. The court declare the principles laid down in the text. American Fur Company v. The United States, 2 Pet. S. C. Eep. 368, 365. . So the declarations of the second in a duel are evi SEC. X.] Parties to Negotiable Instruments, 495 By partner, being a party to the suit. In an action against persons as partners, wiien the partnership is first proved, an admission by one of the defendants is admissible against all.(l) denoe against the principal State T. Dupont, 2 M'Oord, 334. ' The defendants, fifty-nine in num- ber, being indicted for a conspiracy to prevent the use of the English language in the German Lutheran Church ; and being proved to have been engaged in that enterprise, holding meetings, &c., to concert measures for prosecuting their design with force ; held, that the inflammatory and threatening speeches of a few were proper as evidence agairust the whole. The Commonwealth v. Eberle and others, 3 Serg. & Rawle, 9, 16, 19, 20. In an action against several defendants for a fraudulent conspiracy and obtaining public securities from the plaintiff, the plaintiff havmg proved the conspiracy for that purpose, was allowed to give evidence of conversations among several of the conspirators, to affect another who was not present at the time. Patton v. Free- man and others, Coxe's Eep. 113. On one of several defendants having suffered a default against him in an action for a conspiracy and fraud upon the plaintiff, and the others having pleaded to issue, on executing a venire iam, quam, the confessions of the former were held admissible to aggravate the damages. Boatwick v. Lewis, 1 Day, 33. The court said they are evidence against him, he being on trial as to the quantum of damages ; and that they might affect the others, was no reason for their rejection. It may be proper to observe here, that the admission of the principal (e. g. his plea of guilty to an indictment) is prima facie evidence that he committed the crime, on the trial of the accessory. In this respect, whatever is evidence against the principal, is so against the accessory. Rex v. Bhok, 4 Carr. & Payne, 311. On the other hand, on the trial of an indictment against two blacks. Poll and Lavinia, for poisoning their master, Sa/muel Skmner, with white arsenic, a conversation between the prisoners was proved, in which they spoke of putting some deadly drug into the water he should call for, in consequence of their having poisoned his soup, Lavinia adding, " That is the way he said do it." She stated before the magistrate that fte meant Johm Skinner, who gave them something which looked hke Ume, but it was heavier. The court then received John Skinner's declaration in evi- dence, that he had just before bought arsenic. The prisoners, being convicted, appealed, and the Court of Appeal granted a new trial. Taylor, C. J., said J. Skinner's declarations would be ■admissible only against himself; and Henderson, J., said: "The rule has never been carried ferther than this : that when a common design is proven, the act of one in furtherance of that design is evidence against his associates. It is in some measure the act of all. But the decla/ror iions of one of the parties can be received only against himself." Hall, J., concurred. State v. Poll & Lavinia, 1 Hawks, 442. So, on the trial of Col. Burr for a misdemeanor in setting on foot a military expedition against Mexico, the attorney-general, after giving jproof tending to show that Blannerhasset was a co-conspirator or an accomplice, then offered to prove the declarations of the latter tending to imphoate Col. Burr. The testimony was overruled. Marshall, 0. J., de- hvered the opinion of the court, that such a declaration not forming a part of the transaction and not made in the presence of the accused, could not be received as evidence. It is inferrible from the report, that the declaration related to some past transaction, and so came withm the rule conceded in Hardy's Case, cited in the text. U. States v. Burr, 2 Burr's Tr. by Robertson, 538, 539. And see Apthorpe v. Comstock, 2 Paige, 488, per "Walworth, Oh., S. P. See also onfe, note 135. Where two persons jointly concerned were on trial, held that the separate examination of one ■ before the magistrate was not evidence against the other. Hopkins and Gannon's Case, before Eadchff, Mayor, 1 C. H. Reo. 173 ; People v. Bleecker, 2 "Wheel. Cr. Gas. 256. Of course it is not evidence for the other. Brandon's Case, 4 C. H. Rec. 140. See Commonwealth v. Boyer, 2 "Wheel. Cr. Cas. 150. "Where a witness was excused from answering a question, because the answer might subject him to a prosecution, it was held that his declarations as to the same facts were not for that reason admissible, especially as they affected the character of a third per- son. Nettles V. Harrison, 2 M'Oord, 230. (1) NichoUs V. Dowding, 1 Stark. R. 81 ; Gibbons v. "Wilcox, 2 Stark. R. 43 ; Grant v. Jack- son, Peake, 204. 496 Admissions hy Parties, [CH. Vlil. Thus, in an action by several partners against the defendant for the non- performance" of an agreement, a declaration by one of the partners suing, that the goods to which the agreement related, were his separate' prop- erty, is evidence against all the plaintiffs suing as upon a joint contract.(l) And a representation of any fact, made by one partner with respect to a partnership transaction, is evidence against the other partners.(2) Where it appeared that the agreement, which was the subject of the suit, was made by the plaintiff, on behalf of himself and the other proprietors of a theatre, declarations of the other proprietors were admitted as evidence for the defendant.(3) An admission by one defendant, of his parnership with the co-defendants, who were sued with him as acceptors of a bill of exchange, and who had been outlawed, has been received as proof against him of a joint promise by all.(4) (1) Lucas V. De la Cour, 1 M. & S. 249. (2) Eapp V. Latham, 2 B. & A. 795. (3) Kemble t. Parren, 3 C. & P. 623. (4) Sangster v. Mazarreddo, 1 Stark. R. 161. See, also, Ellis v. 'Watson, 2 Stark. E. 453. Note 13T. — The admissions of one of two joint grantors in a deed of land, the grantors being both of them lessors of the plaintiff in ejectment, were received as evidence against both as to the eiistenoe, contents and effect of the deed ; a foundation having been first duly laid for oral proof of its contents. Jackson ex dem. Hoogland v. VaU, 1 "Wend. 125. The rule that the acknowledgment of one of several parties on the record is evidence against the others, was applied to a suit by a creditor of the aneestor against his heirs and devisees. The acknowledg- ment and promise of two of these, who were also executors of the ancestor, were received against the others, to take the debt out of the Statute of Limitations. Johnson v. Beardslee, 15 John. Kep. 3. Quere. See infra, in this note. In debt on a single bill, executed by the two defend- ants, B. & E., to the plaintiff, the admissions of B., respecting the money being due, were held receivable in evidence for the plaintiff against B. as well as B. Lowe v. Boteler & Eastburn, 4 Har. & M'Hen. 346. In ejectment on several demises, a deed given by one of the lessors to a third person, reciting the will of their common ancestor, by which a title outstanding from all the lessors was shown, was received in evidence against the whole of them. The reason given is, that the one lessor could not be a witness, and they all had a community of interest. Brandt ex dem. Van Cortland v. Klein, 11 John. Rep. 335 ; Jackson ex dem. Neilson v. M''V"ey, 18 John. Bep. 330. But afterwards, in partition, by several persons claiming as heirs and tenants in common, against defendants, who claimed the premises in question under a devise from the demandant's ancestor, it was held that the admission of one of the demandants was inadmissible as against the others, to show the loss of the will and let in oral proof of its contents. This was on the express general ground that one tenant in common cannot admit away the rights of another ; and the instance of lessors (tenants in common) in an ejectment is put by way oJ illus- tration. The cases in 11 John. 335, and 18 Id. 330, and the latter decision, certainly cannot ' stand together. Dan and others v. Brown and others, 4 Cowen's Rep. 483. "To warrant receiving the admissions of one in prejudice of another, they should have a joint interest in pos- session, not a mere community of interest. Gray et al. v. Palmers ot al., 1 Esp. N. P. C. 135 ; Hackley V. Patrick, 3 John. Rep. 536 ; Smith v. Ludlow, 6 Id. 267, 269 ; 'Wliitney v. Ferris, 10. Id. 66." Said by Sudam, Senator, delivering the opinion of the Court of Errors, in Osgood v. The Manhattan Co., 3 Cowen, 623. In a proceeding to prove a will before a court of probate, if the admission of one of the several who claim under it be admissible in evidence, it must be one made after the interest accrued, not one before the date of the will. But whether it be admissible. Quare. Burton v. Scott, 3 Rand. 399, 407, 408, 409. See cases in 1 Mood. & Malk. 51, and 4 Conn. R. 544, stated Ante, note 133. In an action against R. & H., two makers of a promissiry note, H. suffered judgment, by default. On a trial with R., the written admission of SEC. X.] By Partner. 497 IL was received in evidence against R., though H. was insolvent, and though H. k E> had long since dissolved partnership. " It may be doubted whether the joint interest is dissolved until the note is paid." In this case a subsequent counter declaration of H., offered by '&., was refused as evidence, though the plauitiff had used the second declaration as evidence in another trial. Martin v. Root, 17 Mass. Rep. 222, 227. On appeal from the probate of a will, by the executors and principal legatees, the declarations of one of them, as to the circumstances attending the making of the will, was received in evidence against the validity of the will, and of course, against the other legatees and executors. Atkins v. Sanger, 1 Pick. 192. Vid. in Miller v. MiUer, 3 Serg. & Rawle, 267, a similar question raised but not decided. But see infra, Phelps v. Hartwell. Q^Mre ; whether, on an issue of devisavii ml non, the admission of one devisee, who is a party, would be evidence against the others. Miller v. Miller, 3 Serg. & Rawle, 267. In an action on a bond against the principal and his surety, conditioned that the former should faithfully execute an agency, his admission that his agency continued beyond a certain time, the question being whether it did not then terminate, was offered in evidence by the plaintiff, at Nisi Priua, and rejected. On a motion for a new trial, the court doubted whether the admission of a principal, not being a part of the res gesitB, should be received to affect his surety. But the point went off on another ground. Boston Hat Manufactory v. Messinger, 2 Pick. 224, 240. Such an admission was denied in State Bank v. Johnson (1 Rep. Const. Court, 404), but received in Simonton's Assignees v. Boucher (2 "Wash. C. C. Eep. 473). In the first, the principal was not a party ; in the latter he was. But no stress seems to have been laid upon the distinction. An acknowledgment of a debt barred by the Statute of Limitations, by one of several joint debt- ors, defendants, takes the case out of the statute as to all. White v. Hale et al., 3 Pick. 291. In assumpsit by two for transporting the defendant's whiskey, a letter from one, admitting that they had converted a part of the whiskey to their own use, was received as evidence against both. Holmes et al. v. Ketlinger et al., 4 Yeates, 532. In an action against the managers of a lottery, to recover the amount of a prize, the confession of one of the defendants that the plain- tiff was the owner of the ticket, is evidence against all defendants. Snyder v. "Wolfley and others, 8 Serg. k Rawle, 328. A joint assumpsit against two defendants not being maintainable without proofj express or implied, that both have assented to the contract in its joint form, although, after estabhshing that one is liable, the other admits a joint liability, this will not support the action. Mitchell v. Koul- stone, 2 Hall's Eep. N. T. S. 0. 351. So where, in assumpsit against two jointly, it was in evidence that each admitted, in their respective answer in chancery, that they had respectively (being joint trustees of the plaintiff) received trust funds to the amount of the plaintiff's claim ; held, that the action was not supported, for this created no more than a several liability. Par- sons V. De Forrest, 2 Hall's Rep. N. T. S. C. 131. Where two persons, A. & B., covenanted as between themselves to make certain repairs at their joint expense, yet A.'s admission that he and B. were jointly liable for work done in such repairs on the order of A. alone, is inadmissible in an action at the suit of the workman to charge both. M Greedy v. Freedly, 3 Rawle, 251. The admission of several defendants that certain books, which all the defendants had notice to produce, were in the possession of a man who was the alleged agent of them all, was held not admissible as to another defendant, so as to warrant oral proof of their contents, no joint liability in all being yet proved. Birbeck v. Tucker, 2 Hall's Rep. N. T. S. C. 121. In assumpsit for money paid by a plaintiff as a surety, against several of his co-makers, on a promissory note, the admissions of one of the co-makers, a defendant, that the plaintiff was surety on the note for all the others, are inadmissible to affect any one beside the person making the admission. "Warner V. Price, 3 Wend. 397. Seirib. The admission of one administrator of his intestate's debt is inadmissible against another, though both are parties defendants on the same record. Forsyth V. Ganson, 5 Wend. 558, 561. And the contrary concession m James v. Haekley (16 John. Rep. 277), was questioned. And in Hammon v. Huntley (4 Cowen's Eep. 494), an admission of one of two executors, defendants, was not allowed against the other, for it may charge the other with a devastavit, though it was said sufficient to take the claim out of the Statute of Limita- tions. But even of this last, quere ; and see the eases ante, note ] 33, where it is made a serious question, whether the admission of a personal representative shall be received against himself, even to take the case out of the statute. On appeal against devisees from an order of probate, confirming and allowmg a wUl, on the ground that the devisor was insane, the opinion of one of Vol. I. 32 498 Admiaswns hy Parties, [CH/ VIII. In Gray v. Palmer, (1) it was Held, tkat -where the plaintiff declared against several defendants on a joint and several note, and the defendants severed in their pleas, and one of them by his plea admitted the hand- writing of the note, the handwriting must, nevertheless, be proved against the other defendants. But this case was apparently decided on the ground that an admission in one plea cannot be used to disprove another plea. The rule with regard to the admissions of partners is not confined to cases where they are parties to the same suit. The admission of a partner, though not a party to a suit, is evidence against, another partner, who is sued, as to joint contracts during the partnership ; and this has been held to be so, even where the admission is made after the determination of the partnership.(2) the devisees was not allowed to be given in evidence against the whole, as he was not Solely interested, but another devisee, joined with him as appellee, had an interest. Phelps v. Hart- well and another, 1 Mass. Eep. Tl. In an action by the holder against C, G. & R., partners, on a note signed by R. with the partnership name, payable to himself and indorsed by him to the plaintiff, the defenoe was that this was to pay R.'s private debt to the plaintiff. The plaintiff offered R.'s admissions in evidence of facts showing the note to be valid. Held inadmissible on this question, viz : whether R. was, quoad hoc, a partner. Tuttle v. Cooper et al., 5 Pick. 414. The declaration of one of several defendants, that he and the others were partners, is receiva- ble for the plaintiff. Whitney v. Sterling, 14 John. Rep. 215. And so are the like declarations from each of the defendants. Taylor v. Henderson, llf Serg. & Rawle, 453, 457. But they are evidence only against the person who makes them, not against the others. Corps v. Robinson, 2 Wash. C. 0. Rep. 338. And hence it has been said, if the person making the declaration were not defendant on the record, the declaration could not be received at all. Martin v. Kaffroth, 16 Serg. & Rawle, 120. And in aU these oases the testimony should be received with the express qualification that it shall affect him alone who makes the admission. Whitney v. Ferris, 10 John. Rep. 66. And where one of the defendants was defaulted, and on trial of the issue against the other a, prima faaie case of partnership was made out against both, yet the admissions of the defaulted defendant were refused to implicate the other. Robbins v. WiUard, 6 Pick. 464. The confeasion of one partner, after the partnership is proved, is not received against another on the ground of his being a joint party, but on the groimd of unity of interest ; and his admis- sions may be received, though he be not served with process, or a nolh prosequi be entered against him. Boyce v. Watson, 3 J. J. Marsh. 498, 500. And it lies with the judge, not the jury, to decide whether a partnership is shown, so as to let in the admissions of one against the other. Harris v. Wilson, 1 Wend. 51. (1) 1 Esp. 135. (2) Wood V. Braddick, 1 Taunt. 104. See Thwaites v. Richardson, Peake, 16 ; where Lord Kenyon, C. J., thought that the admission of a party not a partner to the suit was not receivable in evidence. See also Hodenpyl v. Vingerhoed, Ohitty on Bills, 627, n., admission of an accept- ance by a partner ; Henderson v. Wild, 2 Camp. 562, fraudulent receipts of a partner. It seems this rule does not apply to an answer in chancery by a retired partner, even though it relates to partnership transactions. Parker v. Morrel, 2 0. & K. 599 ; Supra, p. 492. Note 138.— Martin v. Root, 17 Mass. Rep. 222, 227 ; Cady v. Shepherd, 11 Pick. 400, 407, 408. But the rule in many of the courts of this country ia directly the contrary, by which the power of a partner to bind his copartners by admission, is limited in time to the existence of the copartnership. After dissolution, his admission will not be received, even respecting previous transactions of the firm, so as to affect any other than himself. Accordingly, he cannot after dissolution, state an account with a former creditor of the firm, so as to affect his co-debtors. Haokley v. Patrick, 3 John. Rep. 536; Waldeu v. Sherburne, 15 Id. 409; Shelton v. Cocke, 3 Munf. 191 J Walker v. Dubeiry, 1 Marsh. Kent'y Eep. 189.' So, of his affidavit of facts showing SEC. X.J By Partner. 499 that the debt claimed as a set-off by him and his copartners, is not due. Hopkins t. Banks et al., 7 Oowen's Rep. 650. But the admission of a debt by one of several partners, made after dissolution, will take the debt so admitted out of the Statute of Limitations, though the original debt cannot be so proved. Shelton v. Cocke, 3 Munf. 191 ; Smith v. Ludlow, 6 John. Bep. 267. Entries made after dissolution in partnership books, are evidence against him alone who' made them, gimonton's Assignees v. Boucher, 2 Wash. C. 0. Rep. 473. Action for attorney's fees. The defendants had been partners, but their partnership was dissolved. After this, one of them admitted that he had employed the plaintiff's intestate, an attorney, to prosecute two suits for the partners. Held not sufficient to implicate both defendants. Clark v. Gleason et al., 9 Cowen's Rep. 57. On a bill filed against two partners for an account of trading voyages, in which the complainant was jointly interested with them, one question respected the amount ,of the complainant's interest in a certain cargo of cotton, whether it was limited to the amount of the funds in the defendant's hands belonging to him, and which had grown out of certain previous voyages the parties had made ; or whether it was one-half of the whole cargo. The partnership between the defendants had been dissolved before bill filed. On a reference to a master, he received and acted on the admission of one of the partners before him, that the complainant's interest in the cargo was limited to the amount of his funds in the defendant's hands, a fact which the other partner denied, insisting that the complainant's interest was one-half of the cargo. There having been a great loss on the cotton, this admission very much reduced the charges against the plaintiff. The partners were therefore interested to make his interest as large as pos- sible. On appeal to the Court of Errors, the counsel for the complainant sought to make a dis- tinction between a partner's admitting an account, or a balance of account after dissolution, and his admission of any fact ; but the court held there was no difference, and that, though he may bind himself by an admission at any time, a partner after dissolution can make no admission whatever, which shall operate against his copartner. Baker v, Stackpole, 9 Oowen's Rep. 420, 434. See Chapin v. Coleman, 11 Pick. 331. The English rule was once followed in South Carolina ; accordingly in assumpsit for goods sold, against two partners, a letter from one, written after dissolution, admitting the receipt of an account eurrent, and that it was correct, was held admissible against both. Simpson et ah ads. Jeddes, 2 Bay, 533. This was in 1804; but in 1815 this case was directly overruled by the whole court, and the New York rule adopted. Chardon v. Calder & Co., 2 Const. Rep. 686. And again, m 1819, the same doctrine was deliberately recognized on the authority of the New York cases. White v. The Union Ins. Co., 1 Nott & M'Cord, 661. And see Fisher's Ex'rs v. Tucker's Ex'rs, 1 M'Cord's Ch. Rep. 171, 172. But in Kentucky, where the New York rule is fuUy estabhshed ("Walker v. Duberry, 1 Marsh. 189), where one partner after dissolution, but before notice given, and before it appeared the plaintiff had any knowledge of the fact, certified a balance to be due from the firm to him ; held that this was evidence against the old firm. Gardner et al. v. Towsey, 3 Litt. Rep. 425. The admission or promise of a surviving partner will not even take the debt out of the Statute of Limitations as to the estate of the deceased partner ; much less would it prove an original debt. Fisher's Ex'rs v. Tucker's Representatives, 1 M'Cord's Oh. Rep. 169. And the dictum to the contrary, in Higginson and others v. Air and others (1 Dessauss, 427), is overruled. Id. After the partnership of the defendants was dissolved, and that known to the plaintiffs, one of the defendants certified a balance as due from the firm. Held not admissible to charge the other partners. Ward v. HoweU et al., 5 Har. k John. Rep. 60. But Nott, J., thought contrary to the two last cases, that the confession of an original debt by one partner was admissible against the other, though made after dissolution. Fisher's Ex'rs v. Tucker's Ex'rs, 1 M'Cord's Ch. Rep. 190. See notes s'wpra, in regard to joint debtors. Note 139. — The anthorities all agree that the admission of one partner during the continu- ance of the partnership is evidence against all. Per Hosmer, 0. J., in Bound v. Lathrop, 4 Conn. Rep. 338. Thus, entries, made by one partner during the 'partnership in the partnership book of accounts are evidence ' against the other partners. Walden v. Sherburne, 16 John. Rep. 409. And the acknowledgment of a debt by one partner will bind the other, because each is bound for the whole. P» Cw. in Corps v. Robinson, 2 Wash. C. C. Rep. 390. In an action against a surviving partner, on a promissory note, alleged to have been signed by the deceased partner with the name of the firm, evidence of his confession that he signed was admitted. Adams v. Brown- 500 Admissions hy Parties, [CH. VIII. But the statement of one who has been admitted into partnership subse- quently to the transaction in question, is clearly not admissible in evidence, as to such antecedent transaction.(l) It does not follow, however, that an admission made by one partner, or other person jointly interested with others, will in all cases be binding on the others. It will not be so, if it is not made with reference to a matter in which one has power to bind the others. An admission by a partner with reference to partnership matters is binding "upon the firm, as an admission by one executor with reference to the testator's estate is binding upon his co-executors ; but where two persons are partners, and also part owners of a vessel, the admission of one as to a subject of co-part-owner- ship, but not of copartnership, will not be binding upon the other.(2) And in like manner, where two executors were sued upon a covenant by their testator for quiet enjoyment, the breach assigned being that the two defendants had entered and evicted the plaintiff under a lawful title, it was held that a declaration by one of them, that he had lawful title through the testator, prior to the covenant upon which the plaintiff sued, was not binding upon the other defendant.(3) An admission by one trus- tee will not bind his co-trustees, as they are not personally liable.(4) son, 1 Tyl. 452. Seiribk, that where a partnership between two defendants in chancery is estab- lished by proof aliv/nde, the answer of one partner is evidence against the other, the same as any other admission would be. "Williams v. Hodgson, 2 Har. & John. 414, ill ; Chapin t. Coleman, 11 Pick. 331. See mie, note 131. Confessions of one partner to charge the others are not received because both are parties to the record, but because of unity in their interest ; they are evidence, therefore, though a nolle prosequi be entered against the confessing partner. Boyce v. "Watson, 3 J. J. Marsh. 498, 500. (1) Catt V. Howard, 3 Stark. R. 5. (2) Jaggers v. Binnings, 1 Stark. R. 64. (3) Fox V. "Waters, 12 A & B. 43. (4) Davies v. Eidge, 3 Esp. 101, 102. The debt of a copartnership is a joint debt, and not joint and several. Lawrence v. Trustees Ac, 2 Denio, 511. It follows that a dissolution of the firm leaves the partners standing in no other relation to each other but that of joint debtors, who have also a joint interest in the property of the late firm. See Tan Keuren v. Parmelee et al., 2 Comst. 523, and authorities there cited. The general doctrine is, that an admission by one partner, made alter the dissolution of the firm, in regard to the business of the fii-m previously transacted, is admissible as evidence against all the partners. Gay v. Bowen, 8 Met. 100, and cases cited supra, in regard to joint debtors. The evidence is competent, not conclusive. Cady v. Shepherd, 1 1 Pick. 400 ; Lewis v. "Wood- worth & Pratt, 2 Comst. 512. There is a distinction between joint owners and tenants in com- mon ; thus, one of several owners of a vessel, each owning a fractional part of her, cannot bind the other, aa for supplies, by his admission (McLellan v. Cox, 36 Maine, 95) ; unless they are jointly engaged in navigating the vessel, which it seems may be presumed in the first instance from the fact of ownership (9 Penn. State R. 335, 340). In an action against several executors or administrators, the admission of one may be proved against all, though it is not sufficient to charge all, and must be excluded or ruled out, unless there be other evidence to charge the other parties. Forsyth v. Ganson, 5 "Wend. 558. And it is now well settled in this state that the admissions of an executor or administrator cannot be received in evidence either as against his co-executors or co-administrators, or as against heirs SEC. X.] Parties to Regotiahh Instruments. 501 In Wtitcomb v. WhitingXl) -which, was an action on a joint and sev- eral promissory note, given by the defendant and others, to which action the defendant pleaded the general issue and the Statute of Limitations, the Court of King's Bench determined that proof of payment of interest, and part of the principal, within six years, by ooe of the others, who was not sued, would take the case out of the statute. Lord Mansfield, C. J., said : " Payment by one is payment by all, the one acting virtually as agent for the rest ; and, in the same manner, an admission by one is an admission by all." Different opinions have been expressed respecting the propriety of the decision in this case, but the doctrine contained in it appears to be now clearly established. (2) And it will apply even though and devisees. 3 Cowen, 612 ; 6 John. Ch. 312 ; 4 Cowen, 494 ; 14 ■Wend. 97 ; 5 Hill, 239 ; 5 Barb. 40V. (1) 2 Dougl. 661. (2) See Perhain v. Raynal, 2 Bing. 306 ; Jackson v. Pairbank, 2 H. Bl. 340 ; Chippendale v- Thurston, M. & M. 411 ; Pease v. Hurst, 10 B. & C. 122 ; Wjnit v. Hodson, 8 Bing. 309 ; Dowl- ing V. Ford, 11 M. & W. 329. Note 140. — See notes above as to the rule in this country. Where the defendant gave a letter of credit, engagipg to be accountable with W. for goods to be purchased by the latter, in an action against the defendant for goods sold to W. under the let- ter ; held, that W.'s subsequent letter, admitting the purchase, was evidence against the defend- ant. Meade v. M'Dowell, 5 Bin. 195. In an action by a bank against a surety in a bond for the good behavior of a teller, his entries of sums to his credit, made while he was actuig as teUer, were held admissible as evidence against his surety, as a part of the res gestae ; otherwise as to his declarations after his dismissal from the bank. State Bank v. Johnson, 1 Rep. Const. Ct. 404- But see Simonton's Assignees v. Boucher, 2 Wash. C. C. Rep. 473. The admission of one maker of a joint and several note was received against the othgr, who was sued alone (Beitz v. Puller, 1 M'Cord, 541 ; Bound v. Lathrop, 4 Conn. Rep. 336) ; and thisi though the one not sued had obtained his certificate aa a bankrupt, under the law of the United States, and the defendant was his surety ; the court saying he must indemnify his surety.. How- ard V. Cobb, 3 Day, 309. But the admissions of a co-obligor, not sued, in u, joint and several bond, were refused against the defendant. Hamlin v. Pitch, Kirby, 174 ; Abel v. Forgue, 1 Root, 502. And see Baker v. Briggs, imfra. On plea, in abatement of a non-joinder of A., in an action arising ex contraciu (i. e. for work and labor), his declarations, made before action wsp brought, were received in evidence for the defendant, to show him a joint contractor (i. e. a member of the company for whom the work was done) ; and Abbott, Ch. J., laid down this important general rule : " Whatever, in an action brought against him as a proprietor, could be evidence to,prove him one, may be received on this issue to prove him to be one." Clay v. LangsloyVi. 1 Mood. & Malk. 45 ; Storrs v. Wetmore, Kirby, 203, contra. But the party alleged to have been non-jojned was received as a witness for the defendant. The direct contrary of Clay v. Langslojv was £^lso resolved in Sweeting v. Turner (10 John. Rep. 216). After a partnership established, what i? said by one is evidence against the other, though the former be not a party on the record. Pish V. Copeland, 1 Tenn. Rep. 383; Adams v. Brownson, 1 TyL 452. In the following cases the admissions of a party not on the record, thoiigh having a common interest of a certain character with the party to the suit, have been denied ; it was held that.the admission of the principal maker of a promissory note was not admissible to affect the surety who was sued alone. Baker v. Briggs, 8 Pick. 122, 128. See Howard v. Cobb, svpra, coniira. The plaintiff, with G. and several others, borrowed money on a note made by the plaintiff, and indorsed by G. and the others, which the plaintiff paid, and sued G,..'3 adminisfrator foi; G.'a aliquot share, and offered the declarations of the other indorsers inievjdTOce,.to prjOyQ tjirt' they 602 Admissions by Parties, [OH. Vlll. the payment were made after the six years, and when, therefore, the stat- ute had commenced to run,(l) or where the person making the part pay- ment had died before action, so that the joint contract had been deter- mined.{2) And a part payment by one partner of a debt due by a firm, even after the dissolution of the partnership, will have the same effect.(3) Admission must relate joint debt. But this doctrine does not apply unless the payment is distinctly made on account of the joint debt,(4) nor where the payment is made by a party not originally liable. Thus, after the death of one maker of a joint and several promissory note signed by two, a payment upon it by the execiltor of the deceased party will not take the debt out of the statute as against the survivor ;(5) nor will a payment by the survivor bind the executor of the deceased party.(6) And it has even been held that an express prom- ise by one executor will not operate so as to take the case out of the Stat- ute of Limitations, as against the others.(7) Where an action was brought were all to share alike. Held inadmissible. Putting their names on the note as joint indoraers did not make them partners. Slaymaker v. Gundaeker's Ex'rs, 10 Serg. & Bawle, 75, 81. In an action hj a creditor against the heirs and devisees of his debtor, some of whom were also executors, who had petitioned the surrogate for a sale of the debtor's real estate, on the ground of an alleged deficiency of personal assets ; the admission made by the executors in their applica- tion to the surrogatOj was held by the Supreme Court to be evidence against all the defendants, to show the insolvency of the debtor, with the view to avoid a voluntary conveyance made by him, and thus repel the plea of reins per descent, or reins per devise. Manhattan Co. v. Osgood, 15 John. Eep. 165. But the judgment in tKat case was reversed by the Court of Errors on this single point. Osgood v. The Manhattan Co., 3 Cowen's Rep. 612. Nor wiU an admission by an heir, or any act of his, affect a claim against the executor. Blake's Bx'rs v. Quash's Ex'rs, 3 M'Cord, 340. So any acknowledgment or admission made by an executor or administrator, will not bind the real assets in the hands of an heir or devisee, or of the people by escheat, or even affect the right of either to plead the Statute of Limitations. Mooers v. White, 6 John. Ch. Eep . 360. The admissions of an executor or administrator of a co-obligor, are not evidence against the surviving obligor in an action against him by the obligee (Wilmer v. Harris, 6 Har. & John. 1), nor are the declarations of one of several representatives of the deceased admissible against another in a suit by him. Walkup v. Pratt, 5 Har. & John. 51. And the executor of an execu- I tor cannot be affected by his testator's declarations, that he had assets of the first testator. Knapp V. Hanford, 6 Conn. Rep. 170, 174, 175. (1) Manderston v. Robertson, 4 Man. & R. 440 ; Channell v. Ditehburn, 5 M. & "W. 494. See . also, Eew v. Pettet, 1 A. & E. 196 ; Beaumont v. Greathead, 2 C. B. 494. Contra, 2 Comst. N. Y. Eep. 523. (2) Burleigh v. Stott, 8 B. & C. 36. (3) Goddard v. Ingram, 3 Q. B. 839. And see "Wood v. Braddick, 1 Taunt. 104; and by iiord Brougham, C, in Pritohard v. Draper, 1 Euss. & M. 191, 199, 200; Story on Partnership .§-107. (4) See Holme v. Green, 1 Stark. R. 488 ; Brandram v. Wharton, 1 B. & A. 463 ; Bowling v. iFord, 11 M. & W. 329 ; Scheie^ v. Walton, 12 M. & W. 510. (5) Slater v. lawson, 1 B. & Ad 396. See 9 Geo. IT, c. 14, as to new promises by joint con 1 tractors, executors or administrators. (6) Atkins v. Tredgold, 2 B. & 0. 23. (7) TaUock v. Dunn (Ry. &, M. 416), cited with approbation by Parke, B., in Scholey v. Wal- ' ton (12 M. & W, 610, 514), where the same learned judge expressed a similar opinion as to the SEC. X.] Under a Judge^s Order. 503 against A., and B. and 0., his wife, upon a joint promissory note made by A. and 0. before her marriage, it was held that an acknowledgment of the note by A., made after the marriage of 0. with B., would not take the case out of the statute.(l) The effect of admissions made by a party to the suit in the course of the pleadings, which do not require to be proved in the same manner as ordi- nary admissions, will more properly be considered in the chapter which treats of the rule that the substance only of the issue needs be proved. 2. Of admissions by parties made under a judge's order. It is now proposed to treat briefly of admissions made by parties to a suit under a judge's order. Such admissions are in their effect similar to those made by the attorney on the record for the purposes of the suit ; which wiU be discussed hereafter : but as admissions under a judge's order are considered as made by the party to the suit himself, this appears to be the proper place to consider them. Such admissions relate exclusively to written documents, and the prac- tice of requiring them has grown up, of late years, in conformity with cer- tain rules of court, sanctioned by all the judges with a view of saving ex- pense to suitors in the formal proof of documents.(2) K a party relies upon documentary evidence, he will not now, in gene- ral, be allowed the costs of proving the documents, unless he has before the trial given notice to the opposite party, requiring him to admit them. This omission to give such notice will not, however, preclude him from giving the documents in evidence, but he cannot charge the adverse party with the expense of so doing, whatever may be the result of the cause. A foreign judgment, and other documents abroad, have been held to be within these rules, and an order may be made to admit them, if the party, who relies upon them, will pay to the opposite party the expenses of ex- amining them. (3) operation of a part payment by one of several executors. A different opinion as to the effect of sucli a promise had been intimated by the Court of King's Bench, in Atkins T. Tredgold (2 B. & C. 23), and M'OuUoch v. Dawes (9 D. k E. 40). See 12 M. & W. 514. (1) Pittam V. Foster, 1 B. & C. 248. (2) See Keg. 6 & 7 A D. 1832 ; 3 B. & Ad. 392, 393 ; Reg. Gen. H. T., 4 Wm. IT, r. 20, A. D. 1834; 5 B. & Ad. App. IT, 18. (3) Smith V. Bird, 3 DowL P. 0. 641. See Bastard v. Smith (10 A. & B. 213), as to the costs of a witness to translate and explain ancient records ; and the cost of an officer of the Covirt of Chancery to produce affidavits. (Under the Code of New York, either party may exhibit to the dther or his attorney any paper material to the action, and request an admission in writing of its genuineness ; and if he refuse or feil to give the admission within four days after the request, the party proving it on the trial wfll be entitled to demand and receive from the party refusing, the expenses incurred in making the proo^ unless the court is satisfied there were good reasons for the refusal. And the court has power to order either party to give to the other an inspection and copy, or permission to take a copy of any books, papers and documents In his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. And if the party refuses to 504 Admissions hy Parties [CH. Tin. The notice is required to be given a reasonable time before the trial ,-(1) but, it seems, if the party who receives the notice does not object to its sufficiency upon this ground, though he refuses to admit the documents referred to in the notice, the other party, if he succeeds at the trial, will be entitled to the costs of the proof.(2) , The order is usually made in the terms of the notice, " saving all just exceptions to the admissibility of the documents as evidence." If an order is so made by consent, it will be taken as an admission that the documemfc has been properly described in the notice. Thus, where the plaintiff gave the defendant notice that he might inspect, and would be required to ad- mit on the trial, a " counterpart of lease" from T. to S., dated, &c., and a judge's order by consent was made for admitting the same ; the instru- ment produced at the trial was in the form of a demise fro.m T. to S., of the date specified, and was indorsed " counterpart," but was esecuted both by landlord and tenant ; it was held, that the defendant having consented to admit a counterpart of lease, corresponding in date and parties with that produced, could not afterwards contend that the instrument produced was a lease, and was inadmissible for want of a sufficient stamp.(3) Where an admission was that a document " was signed, sealed, and exe- cuted, as it purports to be," the document, which was produced by the party who took the benefit under it, concluded " as witness the hands and seals" of the parties, but the attestation was to signing and sealing only ; it was held, that it was to be inferred that the document had been deliv- ered, and amounted in law to a deed.(4) The doctrine that an admission of this nature will preclude the party making it from disputing the accuracy of the description of the document. obey the order, the court may, on motion, exclude the paper firom being given in evidence, or puaish the party refusing, or both. § 388.) (1) See the Rules of Court, nt supra. (2) Tinn v. BiUingsley, 2 C, M. ft R. 253. (3) Doe d. "Wright v. Smith, 8 A. ft B. 255. (Admissions before trial, in England, are now regulated and required by the Common Law- Procedure Act, 1852, which provides that : " Either party may call on the other party by notice to admit any document, saving all just exceptions ; and, in case of refusal or neglect to admit, the coats of proving the document, shall be paid by the party so neglecting or refusing, whatever the result of the cause may be ; unless at the trial the judge shall certify that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the master, a saving of expense." 15 & 16 Vict., c. 16, § 117. Under this form of admission, which is the same as that under the previous rules of court, an admission of copies of documents does not dispense with the production of the originals. Sharpe v. Lambe, 11 A. ft E. 805. But the admission of a deed is a waiver of objection to it on th» ground that it appears to have been interlined (Freeman v. SteggaU, 19 L. J., 18 Q. B.) ; though an admission of signature to a draft does not waive an objection to it on account of the insufi- cienoy of the stamp. Vain v. Whittington, 2 Dowl. (N. S.) 757.) (4) Hall V. Bainbridge, 17 L. J., Q. B. 317. SEC. X.] Under a Jvdge^s Order. 505 as contained in tlie admission, renders it necessary that the party making the admission should be careful not to make it larger than he intends. Authority of agent to accept bills. In the late case of Wilkes v. Hopkins,(l) the plaintiff declared upon a bill of exchange for £121 10s., alleged to have been drawn by him upon, and accepted by, the defendants as the Newbridge Coal Company. The plaintiff served upon the defendants a notice to admit a " bill of exchange, drawn for £121 10s. by the plaintiff upon, and directed to [the defendants as] the Newbridge Coal Company, &c., and accepted by one H. Bishop, for [the defendants as] the Newbridge Coal Company, payable," &c., &c. An order was made by consent to admit the drawing and acceptance according to the notice. At the trial, the defendants wished to deny the authority of H. Bishop to bind the firm by such acceptance ; but it was held, that they were precluded by the terms of the admission from so doing ; and that the admission was not merely to the effect that H. Bishop signed an acceptance purporting to bind the firm. Tindal, C. J., in giving the judgment of the court, observed : " How far this might have been the case (i. e., that nothing more was admitted than that the acceptance was in the handwriting of H. Bishop), if the bill had been set out, in the notice to admit, in the precise terms in which it purports to have been drawn ; that is, if it had been described as a bill drawn on the Newbridge Coal Company, and to have been accepted for the Newbridge Coal Company by H. Bishop, we are not called upon to determine; for the bill is described in the notice to admit, as a bill 'drawn upon, and directed to the defendants as the Newbridge Coal Company,' and to be ' accepted by one H. Bishop, for the defendants, as the Newbridge Coal Company.' So that the facts — that the defendants constitute the Newbridge Coal Com- pany, and that the biU is accepted by H. Bishop for the defendants — facts not appearing on the face of the bill — are plainly and unequivocally admitted under this notice."(2) ^ Order does not preclude objection to admisaibility. But the party upon whom the order to admit is made, is entitled to rely upon any just exception against the admissibility of any document as evi- dence, even though the saving as to exceptions should be omitted from such order. Thus, were a plaintiff was ordered to admit a " a copy of a letter " from himself to one of the defendants, who had suffered judg- ment by default ; it was held ; that this did not authorize the giving in (1) 1 C. B. t3T. See also Poole v. Palmer, C. & Marsh. 69. (2) 1 C. B. 745. The court, however, upon affidavits that the defendants were taken by sur- prise at the extent to which their admission had been carried, and had thereby been prevented from entering into their real defence, allowed their admission to be remodeled by striking out the words in brackets, and granted a new trial upon payment of costs. 506 Admissions by Parties. [CH. Vlll. evidence such copy, wifhoiit proof of what had become of the original, though notice to produce had been given to the plaintiff, it not being proved that the plaintiff had the original.(l) " The judge's order," ob- served Lord Denman, C. J., " secures the accuracy of the secondary evi- dence, but does not give it the effect of primary evidence." So where the order was to admit " a bill of exchange for £33, at three months' date, drawn by," &c. ; it was suled, that this did not preclude the party upon whom the order was made, from objecting that the bill was not admissible, as not being properly stamped.(2) A slight variation between the notice or order, and the document itself, "will not prevent the opposite party from availing himself of the admission, if the variation was not one calculated to mislead. Thus, where a promis- sory note was described in the notice to admit, as payable on the 10th of October, instead of November, but in all other respects was correctly^ de- scribed ; it was ruled, that the defendant, who had made the admission, could not object to the note being read. (-3) So where a judge's order to admit referred to a notice served by the defendant's attorney, dated the 4th of March, and the notice produced was dated the 1st ; but the plain- tiff's attorney stated it "was'the only notice served in the cause ; it was held sufficient.(4) It is not necessary to prove that the party, -who has admitted a docu- ment, has actually inspected it beforehand. If he has the opportunity to do so, and does not take the trouble, he places himself in the same sittia- tion as if he had.(5) Nor does it seem absolutely necessary to prove that the document pro- duced at the trial was the same as the one produced at the judge's cham- bers ; to require such evidence would be to multiply proofs so as to defeat the rules of court.(6) But it is usual, and is certainly expedient, to be prepared with some evidence to identify the document.(7) An admission made under a judge's order, will be available upon a new trial of the same cause, even though there has been an alteration in the pleadings, provided the alteration does not affect the subject matter of the admission.(8) If the party upon whom the order is made, refuses, at the trial, to make (1) Sharpe v. Lamb, 11 A. & B. 806. (2) Vain v. "Whittington, 0. A Marsh. 484. (3) Meld V. Heming, 1 0. & P. 619; S. 0., in bank (mm. Meld v. Flemming), 5 Dowl. P. 0. 450. (4) Bittleston v. Cooper, 14 M. & W. 399. (5) By Patteson, J., in Doe d. Wright v. Smith, 8 A. & B. 264. (6) By Coleridge, J., Id. 266. (t) See Clay v. Thaokray, 9 a & P. 4^, 53; S. C, not S. P., nom. Clayv. Shaofceray, 2 Moo. & E. 244; Poe d. Tindal v. Boe, 5 Dowl. P. C. 420. (8) Langlfly v. Oxford (Earl), 1 M. & W. 608. See also Elton v. Larkins, 6 0. & P. 386 ; Doe d. Wetherall v. Bird, 1 C. & P. 6. SEO. x] Admissions by Agent. 507 the required admiaaions, and is successful, tlie court ■will grant a new trial, and make him pay all preceding expenses.(l) The jurisdiction given to the rules of court is confined to a judge at chambers, yet at his desire, the court in bank, though they have no power to make an order, will hear the argument, and communicate their opinion to him.(2) S. Of admissions by the agent of a party. It is proposed to consider next the subject of admissions by agents of parties. These admissions appear to be liable ,to some objections, from which the admissions of the parties themselves are free. Tindal, C. J., has observed: (3) " It is dangerous to open the door to declarations of agents, beyond what the cases have already done. The declaration itself is evi- dence against the principal, though not given on oath ; it is made in his absence, when he has no opportunity to dispute or correct it by any ob- servation or by any question put to the agent, and it is frequently brought before the court and jury after a long interval of time. It is liable, theire- fore, to suspicion originally, from carelessness or misapprehension in the original hearer, and to still farther suspicion from the faithlessness of memory in the reporter, and from the facility with which he may give an untrue account. Evidence, therefore, of such a nature ought always to be kept within the strictest rules, to which the cases have confined it." There is less necessity for resorting to such evidence, in the case of living agents, than where proof is given of the admissions of parties who may refuse to be examined ; and, perhaps, the admissions of agents may be considered not so likely, as those of the parties, to contain an accurate and complete statement of circumstances. Numerous questions have arisen respecting the point how far the ad- missions of agents may affect their principals. The general rule may be stated thus : That the statement or representation of an agent, at the time of a transaction which is within the scope of his authority, is evidence against the principal himself, in consequence of the legal relation between principal and agent. It is in the nature of original evidence and not of hearsay, the representation or statement of the agent in such cases being the ultimate fact to be proved, and not an admission of some other feet. Thus, what an agent says at the time of a sale, which he is employed to make, is evidence as part of the transaction of selling ; and in order to prove what was said, it cannot be necessary that the agent himself should be called.(4) (1) Doe d. Tindal v. Roe, ui supra. (2) Smith V. Bird, 3 DowL P. 0. 641. (3) In Garth v. Howard, 8 Bing, 463. (4) See the judgme^t of Grant, M. E., in Fairlje v. Hastings, JO Tes. 123, 126, 12T ; Helyew V. Hawke, B Esp. 72 ; Betham T. Beneon, Gott, 46 ; Alexander v. Gibson, 2 Camp. 656 j Irripg V, Jtotley, 1 Bing. 653 j Peyton v. St. Thomas's Hospital, 3 C. & P. 363 j S. C, mm. Peytoa t. 508 Admissions by Agent. [CH. VIII. london (Mayor, &c.), 9 B. & C. 725 ; Peto v. Hague, B Esp. 134; Shumaok v. Lock, 10 B. Moore, 39 ; Morel v. Harborough (lord), 1 Gale, 146 ; Lucaa v. Godwin, 3 N. C. 737 ; R. v. Hall, 8 C. & P. 358 ; Mortimer T. M'Callan, 6 M. & W. 58. Note 141. — The distinctions contained in Fairlie v. Hastings, relied on by our author, and now so fuUy recognized by the English authorities, have continued to maintain their ground in England, and formed the grand text upon which aU the American courts have proceeded, with perhaps less deviation than the English courts themselves. These distinctions have been often, laid down in the abstract ; and stiU oftener illustrated by the variety of aspects and relations in which the declarations of the agent have presented themselves. "We are, in the first place, after fixing upon him the character of an agent, to inquire whether his acts, statements, or declarations proposed to be given in evidence, took place while he was making the agreement, or otherwise proceeding within the scope or bounds of the authority which we find he possessed. If this be so, they are the acta, statements, or declarations of the principal himself; and though the party insisting upon them as such, may call the agent and prove them by him, yet he may be passed by, and any third person having the requisite knowledge of such acts, statements, or deo'ara- tions, is equally admissible for that purpose. Eawaon v. Adams, 17 John. Rep. 130, 131 ; Sher- man V. Crosby, 11 Id. 70, 71 ; Shelmakerv. Thomas, 7 Serg. & Rawle, 109 ; Meredith v. Kennedy, Litt. SeL Cas. 616, 517, 518 ; Hood v. Reeve, 3 Carr. & P. 532 ; per Spencer, J., in Coleman v. Southwick, 9 John Rep. 54, 55 ; per Marcy, J., in Benjamin v. Smith, 4 Wend. 334 ; Thallhimer V. Brinckerhofi; 4 Wend. 396, 397 ; Burlington v. Calais, 3 Verm. 385 ; Perkins v. Burnet, 2 Root, 30 ; Mather v. Phelps, Id. 150 ; Irving v. Motley, 7 Bing. 643 ; Webb v. Alexander, 7 Wend. 281, 283, 286. Thus, if the agent's declaration be by letter, instead of calling him, you may call another and prove the signature to be in his handwriting, as if it were actually a letter of the principal ; for it is so in law. Daniel v. HiU, Norris' Peake, 40. But serrJ>. you must show that it was sent ; and it is not enough to prove a copy fi-om the agent's files, though be be dead, tmless the original be accounted for. Davis v. Mason, 4 Pick. 156. Nor this, though the copy be properly directed. Id. So copies of invoices made by him cannot be proved, though the originals remain in his custody. Cooper v. MorreU, 4 Teates, 341. We proceed, therefore, to a brief sketch of the oases, as they show, first, when the declaration of the agent proposed to be given in evidence shall be deemed within his authority, or, as it is cfl»n expressed, a part of the res gestce ; and secondly, when they are beyond his authority, and therefore, like any declaration of a third person, inadmissible without the sanction of his oath. First. For the declarations of corporators offered in evidence to affect the interest of the insti- tution to which they belong, we refer generally to the previous note 134, on this subject. The cases as to the admission of joint vn-ongdoers ante, notes 135 and 136, may also be advai;tageously consulted, as having an important bearing on the question when a declaration shall be deemed a part of the res gestae. The admission of an overseer of the poor that he had received the requisite notice to charge his town with the expenses of a pauper, such admission being made by him while engaged in court aa agent, defending the town against the claim as is his office and duty by law, is admissi- ble in evidence against the town at any time after. Burlington v. Calais, 1 Verm. Rep. 385. And note, this admission was made while trying the cause in the court below before the justice, and was received as evidence against the town on the trial upon appeal, as it would have been if made by the party himself. Beed v. Rocap, 4 Halat. 346, 352; Fitch v. Hyde, Erby, 258, 269, stated ante, note 125. It has also been made a question whether the admissions of counsel upon one trial would be evidence against the client in another ; for the counsel is equally authorized to make the particu- lar admission as was the overseer. But he has no such general power, and hence it has been holden that his admissions cannot be received out of the cause (Harrison's Devisees v. Baker, 5 Litt. 250) ; and that a bill of exceptions is not evidence in or out of the particular cause (Baylor V. Smithera, 1 Mon. 6, 7); though held, it may bo in the same cause, to discredit a witness (Id.); but guere. Nor is a case made for a new trial evidence in another suit, though both suits relate to the same subject matter. And such cases ought not, perhaps, in any case, to be received as evidence, unless the admission of some fact contained in them be made the condition of a new trial. Elting v. Scott, 2 John. Rep. 157, 162 ; Harrison's Devisees v. Baker, 5 Litt. 250, 252, 264. Nor does a demurrer to a plea so admit the facta as to be received in another causa SEC. X.] Admissions by Agent. 509 between the same parties. Tompkins v. Ashley, 1 Mood. & Malk. 32, 33. But a bill of particu- lars was held an admission in the particular cause in which it was rendered. Rymer v. Cook, 1 Mood. & Malk. 86, 81, note. But see Brittingham v. Stevens, 1 Hall's Eep. K. T. S. C. 319, contra. So a notice from the attorney may be used as an admission in the particular cause. Holt T. Squire, cited in the text. When the wife shall be deemed the agent of the husband, and so her admissions received, see ante, note 46. Of confessions by the under-sheriff, deputy or bailiff, to charge the sheriff, see mfra. The defendant agreed to pay to the plaintiff a sum of money, in consideration of the plaintiff suffering his wife to live separate, and dehvering to her certain property. In a suit for the money, the wife's declarations that she had received the property, were held admissible against the defendant, she being his agent for this purpose. The court said her receipt would have been evidence of the delivery, and her parol admission ought to be equally so. Penner v. Lewis, 10 John. Eep. 38, 44, 45. But note, this case seems more difficult to support as one of a mere agency admission, than as the admission of the real party in interest, though not on the record, according to the rule, amie, in the text, and note 133. The defendant having written to the plaintiff that he would be accountable with "W. for any con- tract he would make for the purchase of goods, in an action for goods sold to W., held that a letter from W. subsequent to the purchase, acknowledging the purchase of goods from the plaintiff, was evidence against the defendant. And Tilghman, C. J., said, the defendant having confided to W. the power of making the contract, confided to him, of consequence, the power of furnishing evidence of the contract. Meade v. M'DoweU, 5 Binn. 195. But note, this is more like the case of principal and surety, than principal and agent. Both parties seem to have been Mable ; the defendant as surety, on his letter of credit, and the purchaser as a principal Ante, note 140, Accordingly it is said, the letters of an agent cannot be received in evidence to prove facts stated in them. He is a competent witness, and should be sworn to prove these. But his letters may be received to show what facts he has stated in the course of his business as agent, in order to explain upon what motives and principles the party receiving them acted ; though the facts stated must be proved otherwise. Blight v. Ashley, 1 Peters' 0. C. Rep. 15, 21, per "Wash- ington, J. In assumpsit for money had and received, the plaintiff offered in evidence what the defend- ant's agent who received the money, said. Curia : " What he said and did in that transaction is the same as said and done by the defendant." Perkins v. Burnet, 2 Root, 30. To repel a plea of usury to a promissory note, the plaintiff offered to show what the defendant's son had said while acting as agent in relation to the transaction in question. Held admissible. Mather V. Phelps, Id. 150. So an entry of deposit by the agent of a bank in a bank-book accompanying the deposit, is a conclusive admission against the bank ; otherwise, if made afterwards. Man- hattan Co. V. Lydig, 4 John. Rep. 389. So the entry in a bank-book of a dealer, of the amount of bis deposit, made by a teller or clerk of the bank, is an entry by the bank agent. He is not the agent of the dealer, and a mistake may be shown by the latter. Mechanics and Farmers' Bank in the city of Albany v. Smith, 19 John. Rep. 115. Accordingly, in assumpsit for the price of hides sold by a butcher, against the proprietors of a tan-yard, their general manager of the yard, who had power to buy hides and sell leather, gave the plaintiff three certificates of differ- ent dates; one that $1,640.75 was due the plamtiff on settlement; one that $2,843.25, and another that $1,297.30 worth of hides had been received by him from such a day to such a day, mentioning the time in each certificate ; and signed his name. And these certificates were held admissible to charge the defendants. Marshall, Ch. J., said the proprietors themselves might have given such papers ; and their general manager had the same power ; and the court held aU the papers receivable in evidence against the defendants, including that which certified the settlement or balance struck. Barry v. Foyles, 1 Pet. S. C. Rep. 311. And see Rawson v. Adams, 17 John. R. 130. So to prove a loss on an adventure shipped to New York, the account of sales by the factor was received in evidence on proving his signature to the account. Rich v. Broadfield, 1 DaU. 16. And semh. the log-book of a ship is evidence for (of course it is so against) the owner; but it must be proved to have been regularly made. Proof of the mate's handwriting in many parts, and that a sailor saw him writing " Log-book of the Lydia" (the 510 Admissions hy Agent. [CH, VIII. name of the ship), during the voyage, held not enough. TTnited States v. Mitchell, 2 "Wash. 0. 0, Rep. 478. Such strict proof would of course not be necessary, where it is used agmnst the owner. So the declaration of a sheriff or auctioneer as to what property is up for sale, e. g., whether it be the whole farm or only a certain parcel of it, is admissible. 'Wright's Lessee t. Deklyne, 1 Pet. C. 0. Hep. 199, 201, 204. And in assumpsit for ten kegs of dollars, against a bank, the plaintiff proved that the kegs, being brought to the bank against the plaintiff's will, were paid out for the debts of the bank by direction of H. and B., president and cashier pro tempore. And this was held admissible, though H. and B. were both within reach of a sub- poena ; because a president and cashier of a bank may direct money in the bank to be paid out for the debts of the institution. But the subsequent admission of the president as to a bag of doUars which had been brought into the bank and converted by a stockholder, that this was the plaintiff's property, was held inadmissible. The City Bank of Baltimore v. Bateman, t Har. & John. 104. So on a hbel against goods, as being forfeited by illegal exportation, in a trade with the Indians, the declarations and acts of the exporters' agent, or of any one who acted in con- junction with the exporters m the course of their business, were held admissible as evidence against the goods. American Pur Company v. The United States, 2 Pet. S. C. Rep. 358. So in a statute proceeding, to recover for labor done on the respondent's ship, he insisted that the libelant had been paid by a note of W. & C, former owners. The Ubelant insisted that the note was not paid, but renewed and discounted, the money going to W. and C. A witness for the libelant proved that W. and C.'s clerk came to the libelant, and requested hijn to renew the note, which he did. Objected that this was hearsay ; and that the clerk should be sworn as a witness ; but the objection was overruled. The court say, being clerk of W. and C, he was their agent ; and his sayings and doings were matters of fact. Ship Portland v. Lewis, 2 Sferg. & Rawle, 191) 203. And though the acts of a deputy surveyor in surveying state lands for A. cannot be given in evidence for him without producing the public authority under which the deputy acted, yet the unauthorized act of the deputy, done or attempted by the procurement of A., may be given in evidence against him. Unger v. "Wiggins, 1 Rawle, 331. So in an action by the owners of a vessel on a policy of insurance, the protest of the master and mariners, ia admissible evidence for the plaintiffs, and of course for the defendants. Miller v. South Carolina Ins. Company, 2 M'Oord, 336 ; Campbell v. WUliamson, 2 Bay, 23'7. S. g., as to the cause of deviation, or the seaworthiness of the vessel. Id. The plaintiff made an agent to receive certain moneys collected for him by the defendant. Held, that the agent's drafts on, and receipts to the defendant for money, his letters in the course of the business to the defendant, and an account and balance struck between them in respect to the money ; and the agent's admission of payment at the time of so settling, were all evidence for the defendant. The agent need not be made a witness by him. ThaUhimer v. Brinkerhoff, 6 Cowen's Rep. 90, 99, 100. And see Sherman v. Crosby, 11 John. R. '70. So a letter from the debtor's agent (authorized to do the act), directing the creditor on which of several debts to apply certain moneys paid, were held admissible to prove the application of the payment. Mitchell v. DaU, 2 Har. & GiU, 159, 1'70. The party had employed Pitch as agent to seU for him a quantity of barilla, who sold part to the defendant, who gave his note. The barilla was in truth worth nothing ; and iu an action on the note, the defence being that there was ftaud, the defendant proved the declarations of Pitch in respect to the quaUty of the remaining quantity on hand, after the sale to the defendant The court thought that as Pitch was agent for selling the whole, his declarations, while engaged in that agency, were admissible against the plaintiff. But the cause went off mainly on another point. Welch v. Carter, 1 Wend. Rep. 185, 190, 191. In an action for money had and received, it appeared that the defendants' agents had direc- tions to receive the money and remit it to the defendants. A lettet from the agents admitting they had received it— that letter being answered by one from the defendants — was therefore received in evidence against the defendants, as a declaration made in the course of their business as agents. The object of the letter was to show the money to be m the hands of the defendants' agents. Ooates v. Bainbridge, 6 Bing. 58 ; S. C, 2 Moore & Payne, 142. In assumpsit on a promise to remove certain mud, which the defendant's foreman had asked leave to throw on the plaintiff's land, on cleansing a stream for the benefit of the defendant's mill, the plaintiff offered to prove what the defendant's clerk in his counting-house, and who also had the internal man- agement of the mill, had directed the foreman as to cleaning the stream and taking away the SJEC. X.J Admissions hy Agent. 511 mud. Held inadmiaaible. The act of tlirowmg out the mud was not within the ordinary busi- nesa of the defendant as a miller, and the clerk who managed the mill could mot, therefore, inter- fere. Suppose, said Best, 0. J., the defendant's house had been out of repah-, the repairing would not come within the business of the clerk as agent in the counting-room. Shumack y. Look, 10 B. Moore, 39. The acknowledgment of the cashier of a bank, that a note had been paid, was received, and held prima faaie evidence against the bank. State Bank v. Wilson, 1 Dev. 484. So where the wife of the plahitiff, who was shown to be the plaintiff's agent for the purpose, declared that the demand in question had been sold by her to P., this was held admissible aa evidence against the plaintiff, and that any one might safely treat with F. oouceming it. Curtis V. Ingham, 2 Term. Bep. 287, 289. Note— the plaintiff had left the state, leaving the whole control of this business with his wife. On trying a claim as informer against the United States collector, for the proceeds of goods informed against, the admissions of his deputy, while engaged in the seizure and securing the propert^y, are admissible against the coUeotor as to the fact of the claimant being the real informer, but not after the goods are secured in the store, or the transac- tion otherwise dosed by him. In the first case they are a part of the res gestas ; in the last, not. "Westcott V. Bradford, 4 Wash. C. C. Rep. 492, 499 to 501. An attorney-general has power to make admissions favorable to the accused. State v. Fields, Peck, 140. And the declarations of a surveyor authorized by the owner of land to survey and lay out a town, made in reference to matters chiefly within the scope of his powers, and while he is acting in his agency, are evi- dence agauist the owner and his grantees. Barclay v. Howell's Lessee, 6 Pet. S. C. Rep. 498 ; M'Cormiok v. Bamum, 10 Wend. Rep. 104, S. P. In the latter case the surveyor was dead, but this was not relied upon. His declaration was considered within the scope of his power, which was to make a survey and allotment for the owner, though made just after the close of his survey. But see Meredith v. Kennedy (Litt. Sel. Cas. 516, 511, 618, stated also infra), which holds that such subsequent declarations cannot be received. The declarations of the defendant's supercargo, made while sailing, that the deviation of the vessel from the voyage described in the charter party was by his (the supercargo's) direction, were received in evidence against the defendant. Biggins v. Soloman, 2 Hall's Kep. N. T. S. C. 482, 487, 488. The defendant gave a written order on the plaintiff in favor of S., stating that S. wished to trade with the plaintiff fbr hides to the amount of eighty or one hundred dollars, and that the defendant would be respon- sible for the engagements of S., and S. indorsed on the order a receipt for the hides "to the amount of one hundred dollars," Ac; held, that the receipt so indorsed 'Tias prima facie evidence of the delivery of the hides pursuant to the order. The court say that S. was the defendant's agent, having authority to receive, and the receipt was his act as agent. Rawson v. Adams 11 John. Bep. 130. Secondly, we are to present the cases where the declarations or statements proposed to be proved are beyond the scope of the agent's authority, in which case they are not evidence to affect his principal, farther than any mere assertion, though they regard acts which were within his authority. Per Cheves, J., in State Bank v. Johnson, 1 Rep. Const. Ct. 409 j Blight v. Ash- ley, 1 Pet. C. C. Rep. 15, 21 ; Webb v. Alexander, 1 Wend. Rep. 281, 283, 286 ; per M'Lean,. J., in Barclay v. HoweU's Lessee, 6 Pet. S. 0. Rep. 404. And this, though they are contained ia the agent's sworn answer to a bUl in chancery. Leeds v. The Marine Ins. Co. of Alexandria, 2 Wheat. 380. In assumpsit for work and labor, the plaintiff was allowed to prove by D. the declaration of the defendant's agent concerning buildings erected by the plaintiff on the farm of a third person with whom it did not appear the defendant had any connection. This was left to the jury, with instructions that, if they believed D., they should find for the plaintiff. Held erroneous, for, no connection, was shown between the defendant and the thu-d person. Irvine v. Buckaloe, \% Serg. k Rawle, 35. The defendant, by P., his agent, purchased certain trees of the plaintiff's intestate. Held, tliat a subsequent written account made by P., of the timber cut under P.'s direction for the defendant, was not admissible in evidence against him, Pasteur v. Parker 3 Band. 458. So in assumpsit for the price of pig iron, the delivery was sought to be proved by the certificate of the defendant's clerk, dated Nov. 1815, that the quantity of pig iron delivered to him by the plaintiff in October and November, 1814, was so much. Held inadmissible, it being a past transaction, and not a receipt given at the time, which, semUe, would have been evidence. The plaintiff should have sworn the clerk aa a witness. Glasser v. Reno, 6 Serg, & 512 Admissions by Agent. [CH. Vlll Kawle, 206, 20T. Again ; in an action for money had and received, the claim arose from the defendant having received money from the treasury for certain rations furnished to the army by one Bradshaw. The plaintiffs claimed that Bradahaw, now deceased, waa their agent in fur- nishing the rations; and the defendant, that he was his agent in furnishing them. The defend- ant offered in evidence a written statement of facts by Bradshaw, respecting the matter in con- troversy, made to be submitted to referees in a controversy between himself and one Duncan. Held inadmissible. The plaintiffs then offered in evidence Bradshaw's letter denying that the defendant had supplied the rations; but this was in answer to certain declarations of his to the contrary, which the defendant had given in evidence. Held admissible only in this point of view, but not as proof of an independent fact. Turnbull et al. v. O'Hara, 4 Teates, 446, 452, 453. Quere. Action for money paid as a premium in effecting an insurance for the defendant. "W., as the defendant's agent, requested the plaintiff to insure, and gave to the plaintiff his (W.'s) own note, but failed. The plaintiff' offered to prove the subsequent declarations of W., that the defendant would pay the debt. Held inadmissible. The reason given is, that W. was agent only to effect the policy, not to bind the defendant by a subsequent promise to pay. MiUick v. Peterson, 2 Wash. 0. C. Kep. 31. In ejectment founded on an entry and survey, the admission of the plaintiff's agents and sur- veyors, that they had agreed to a survey which should not interfere with the defendants, were held inadmissible against the plaintiff, not being made in the course of their acts as agents ; but afterwards. Meredith v. Kennedy, Lit. Sel. Cas. 516, 617, 518. Quere. See M'Cormick v. Barnum, 10 "Wend. 104, and Barclay v. Howell's Lessee, 6 Pet. 498, both cited supra. But in the New York case the surveyor waa dead, and it was a declaration as to boundaries, and in the case from Peters, tlie declarations of- the surveyor were while he was acting as such. In trover against four, two of them owners, and two agents of the owners in managing a warehouse, the two agents admitted that they had, by the owners' orders, converted the plaintiff's whiskey which he had at the warehouse. Held inadmissible, as the admissions were not at the time of their doing the acts complained o£ Roberts, &o. v. Burks, Litt. Sel. Cas. 411. The plauitiff appointed an agent to settle with, and receive money from, the' defendant for a debt. The defendant, to prove a settlement and payment between him and the agent, offered in evidence an account cur- rent, to which the agent had made an affidavit. Held inadmissible, it being the admission of past acts of the agent, and the admission not within the scope of his authority. Thallhimer v. Brinckerhoff, 4 Wend. Eep. 394. So the declarations of one who had been an agent to make a contract, after he had made it, though he was still agent to make like contracts for the same party, were held inadmissible to affect his principal in respect to the terms or construction of the former contract ; for such were not a part of the res gesice. Haven v. Brown, 1 Greenl. 421. So the declarations of an agent, that he had given license to enter and cut timber, are not admis- sible against his principal ; being an admission of what was past. Hubbard v. Elmer, 1 Wend. Eep. 446, 448. The maker gave a proposition for time on his note at the bank to the cashier, who, as he promised, submitted the proposition to the directors ; and came and told the maker that the proposition had been accepted. It was proposed to give this in evidence against the bank, the cashier being their general agent, which fact was admitted. But held, that notwith- standing, this information was not a part of the res gestce. He did not himself make the contract for time ; it was made by the directors. He merely carried the proposal and brought back the answer ; and the information being but hearsay, held, the agent must be sworn. Grafton Bank V. Woodward, 5 N. H. Rep. 301, 308, 309. An agent appointed to superintend the execution of a survey in a suit of chancery, has no autliorily to admit tUo notoriety of any object whose noto- riety may be material in the cause. Robinson v. Morgan, Litt. Sel. Cas. 56. In detinue for the plaintiff's goods, pawned without his authority to the defendant, a pawnbroker, the only evidence to charge the defendant with possession, was the admission of the defendant's shopman, made at the house of the plaintiff's attorney. AndTindai, C. J., delivering the opinion of the court, said if the transaction had been one in the ordinary trade and business of the defendant as a pawn- broker, in which trade the shopman was his agent or servant, a declaration that his master had received the goods might probably have been evidence ; as it might be held within the scope of the shopman's authority to give an answer to an inquiry made by any person interested in goods deposited with the pawnbroker. But he said this deposit was on an ordinary loan at five per cent, out of his line as pawnbroker, a case in respect to which the shopman had no authority. The SEC. X.] Not in Course of Business, 518 But where an agent has said or -written anything relative to a transac- tion which is past and completed, the question of the admissibility of the agent's declaration, without calling the agent, depends on the point whe- ther the making of such a statement was within the scope of the agent's authority. Thus, in Fairlie v. Hastings,(l) where the fact sought to be es- tablished was, that a bond had been executed by the defendant to the plaintiff which the defendant had got possession of, the master of the Rolls refused to admit, as evidence of this fact, the declaration of the de- fendant's agent, who had been employed to keep the bond for the plain- tiff's benefit, and who, on its being demanded by the plaintiff, informed him that it had been delivered to the defendant. His Honor there laid down the rule respecting the statements of agents to be, that they are inad- missible, unless made by them either at the time of their making an agree- ment about which they are employed, or in acting within the scope of their authority. But it seems to be a more simple rule with respect to ad- missions, that they are only receivable when there was authority to make them.(2) Warranty of horse by servant. Thus, the declaration of a servant, employed to sell a horse, is evidence court recognize Fairlie v. Hastings, cited in the text, as the true and leading authority, and mani- fest a great reluctance to open the door for agents' declarations beyond what the cases hare already done. Garth v. Howard, 8 Bing. 451. , It is proper to remark, that the case of Fairlie v. Hastings, as may be seen by the text, was the admission of a special agent, the agent for a single purpose to keep a paper. Had the agency been general, that is, an agency arising from a multitude of instances (15 East, 108), we cannot say what the master of the Rolls would have thought of it. Most of the cases above cited make no distinction between the admissions of a general and special agent. But it will be seen by several of them that the powers of a general agent to make admissions, while the agency con- tinues, are put on the same footing as the power of the principal. Such are the cases of Barry V. Foyles, State Bank v. Wilson, and Curtis v. Ingham, cited mpra ; and such, too, are the eases of Mott V. Kip, 10 John. Rep. 4.1& ; and Wheeler v. Hambright, 9 Serg. & Rawle, 390, 396, 39T, also cited post, note 146 ; while in the City Bank of Baltimore v. Bateman, Westcott v. Bradford, Glasser v. Reno, and Roberts v. Burtis, supra, the powers of a general agent are tied down to admissions which are literally cotemporaneous with the act of agency, like those of a special agent. There is certainly an appearance of incongruity between these sets of cases. In England the admission of a general agent concerning the business intrusted to him, has, in several cases, been allowed to be equivalent to the acknowledgment of the principal. Burt v. Palmer, 5 Esp. Rep. 145 ; Palethorp v. Furnish, 2 Esp. Rep. 511, note. A remarkable exception to the doctrine of Fairlie v. Hastings was allowed in Greenwood v. Curtis (6 Mass. Rep. 358). The action was on a note payable in slaves on demand, upon the coast of Africa. The agent who made the demand there being dead, his letter was received to prove it. This was placed on the ground that he acted in a country destitute of civil govern- ment, without officers quaUfied to take and certify proofs ; and no cause being then pending, it could not be expected the agent would take with him a dedimus potestatem. (1) 10 Ves. 128, referred to by Tindal, C. J., in Garth v. Howard, 8 Bing. 452, as being the leading case on the subject. (2) See Garth v. Howard, 8 Bing. 452 ; Helyear v. Hawke, 5 Esp. H. Vol. I. 33 514 Admissions hy Agent, [CH. Vlll. to cliarge the master witli a warranty, if made at the time of sale ; but the servant's admission at any other time, that there had been a warranty, is not receivable.(l) So, the declarations of a pawnbroker's shopman, un- connected with the ordinary business of his master, are not admissible against the master.(2) It was said by Tindal, 0. J., in this case, that if the transaction, out of which the suit arose, had been one in the ordinary trade or business of the pawnbroker, a declaration of the shopman, that his master had received goods, might probably have been evidence against the master, as it might be held within the scope of such agent's authority to give an answer to such an inquiry, made by any person interested in the goods deposited with the pawnbroker. But the transaction appeared to have been unconnected with the business of the shop, and there was no evidence to show the agency of the shopman in such transactions.(3) Letter of agent. In the case of Maester v. Abraham,(4) Lord Kenyon, C. J., refused to admit the letter of an agent (respecting a contract made by him as agent) as evidence of the agreement against the principal, and ruled that the agent himself ought to be examined. Sir "W. Grant, M. R., adverting to this case, (5) said, that if the agreement was contained in the letter, he should have thought it siifficient to prove that the letter was written by the agent ; but if the letter was offered as proof of the contents of a pre- existing agreement, then it was properly rejected. And the Court of Common Pleas determined, after much argument, in the cases of Kahl v. Jansen,(6) and Langhorn v. Allnut,(7) that the letters of an agent abroad (1) Hel7ear v. Hawke, 5 Esp. 12. See Peto v. Hague, 5 Esp. 134; Allen v. Denstone, 8 C. A P. 760. (2) Garth v. Howard, 8 Blng. 451. (3) Note 142. — Scott v. Crane, 1 Conn. Rep. 255. But the proposition that the agency must be proved before the agent's admission can be received, was talien with some qualification in the two following cases. In the first it was declared that where the proof of agency is doubtful, it may, with the agent's act or declaration, be submitted to the jury to adopt or reject his act or declaration, as they shall find the fact of agency or not. The plaintiff, to diarge the defendant as a party to a receipt given by M., proved by H. that M. had in the same year with the date of the receipt and the next year, done business as agent of the defendant, with H. ; and that two years after the receipt, the defendant said M. was his agent, and did business for him ; and the court charged the jury that if they believed what was sworn by H., they should find against the defendant. Held, thaUt was wrongly left to the jury ; that it should have been put to them to find the agency or not, instead of inquiring simply whether the testimony was true. Irvine v. Buokaloe, 12 Serg. tRawle, 35. In the other case, the plaintiff wrote two letters to the defend- ant, demanding a debt, which were unanswered. He then wrote to K. as the defendant's agent, who answered the letters, and paid part. Some time after the plaintiff wrote again to K., who promised to pay the residue. Lord Tenterden said there was dear evidence tliat K. was the defendant's agent at one time, and he put it to the juiy on the whole evidence whether he did not continue so. Roberts v. Gresley, 3 Carr. * Payne, 380. (4) 1 Esp. 375. (5) In Fairlie v. Hastings, 10 Ves. 127. (6) 4 Taunt. 5fi5. (7) Id. 611 ; S. P., Eeyner v. Pearson, 4 Taunt. 663. SEC. X.] Letter of Agent. 515 to his principal, containing a narrative of the transaction in which he had been employed, were not admissible in evidence against the principal, as the mere representation, of the agent. (1) The general rule on the subject was there fully recognized and confirmed. " When it is proved," said Gibbs, C. J., " that A. is agent to B., whatever A. does, or says, or writes, in the making of a contract as agent of B., is admissible in evidence, be- cause it is part of the contract which he makes for B., and which, there- fore, binds him, but it is not admissible as the agent's account of what passed."(2) When the declarations of an agent are admitted in evidence, (1) See also Lawrence v. Thatcher, 1 C. & P. 669. Note 143. — ^The defendant, as alleged, authorized hia agent C. to guaranty in the defendant's name two promissory notes made by G-. to the plaintiffs, for premiums of insurance. Held, that letters which passed between the defendant and C, the defendant and G., and even between G. and C, in respect to the cause, consideration, and fact of the authority to guaranty, were admis- sible to prove O.'s authority. The court say it is the transaction itself; the res gestce. New England Marine Ins. Co. v. De "Wolf, 8 Pick. 56, 62. Two letters of the defendant to the plaintiff respecting an arbitration pending between them, said (one of them) : " Hancock is in possession of my sentiments, and will attend." (Another) : '' I have written to my friend, Mr. Hancock, on the same subject, and refer you to him thereon.'' Held, that this proved Hancock's authority to speak on the subject of the arbitration, and before the arbitrators, for the defendant ; and his admissions there were received as evidence against the defendant. Hood v. Reeve, 3 Carr. & Payne, 532. In assumpsit the defendant proved that the plaintiff admitted that his wife had a power of attorney from him to settle or dispose of the demand. Held, sufficient proof of an agency in the wife. And it was said, though the declaration had been of a written power, it was admis- sible, without notice to produce it. But of this last qv£re. Curtis v. Ingham, 2 Verm. Rep. 287, 289. A party appeared in court to defend another who had trespassed on lands for the party's ben- efit. Held, that he thus made the trespasser his agent, adopted his acts, and evidence against the trespasser was thus made evidence against him as principal. Thompson v. Chauveau, 1 Mart. Lou. Rep. (N. S.) 331, 333. By sanctioning his conduct, the principal adopts the act. Thurman v. "WeUs, 18 Barb. N. T. 500; 12 Id. 27 ; 10 Geo. 362. A singular strictness seems to prevail in Pennsylvania as to the competency of an agent to prove his authority in certain cases. It has there been repeatedly decided that an agent is incompetent to prove his own authority to sell lands, even if his written power be lost ; but the power must be proved by other witnesses, and then he may be allowed to show how he had executed his instructions. Nicholson's Lessee V. Mififiin, 2 Dall. 246 ; 2 Teates, 38, and the cases there cited ; Meredith's Lessee v. Macoss, 1 Teates, 200. But the mere loss of the power may be shown by the agent, though he is inad- missible to prove the contents. Meredith's Lessee v. Macoss, 1 Teates, 200. And a factor may, in some instances, at least, prove his own authority. Said in Right's Lessee v. Mifflin, 2 Teates, 38. See the later decision: Chidsey v. Porter, 21 Penn. (9 Harris) 390 ; MoCulloch v. McK.ee, 16 Penn. State R. 289. (2) 4 Taunt. 519. Note 144. — ^Neither the declarations of a man nor his acts can be given in evidence to prove that he is the agent of another. Scott v. Crane, 1 Conn. Rep. 255 ; Plumsted's Lessee v. Rude- bagh, 1 Teates, 602, 505; James's Lessee v. Stookey, 1 Wash. C. C. Rep. 330. In an action against a constable for not delivering up goods he had attached to satisfy the plaintiff's execu- tion, he offered to show that he had delivered them to H., who took the direction of the suit. The court admitted that acts or concessions of an agent are binding on the principal ; but said, to let in proof of them, the agency must be first proved, which was not done here. Scott v. Crane, 1 Conn. Rep. 255. But in order to prove the authority of an agent in a particular trans- action; it is competent for the party under certain limitations, to give evidence of hiS' aondtict, 516 Admissions ly Agent, [CH. VIII, they are received not for tlie purpose of establishing the truth of the fact stated, but as representations by which the principal is as much bound as if he had rnade them himself, and which are equally binding, whether the fact stated be true or false. But where an agent's letters have been adopted or acted upon by the principal, they become admissible against him, for the principal's conduct raises the inference that the letters were written within the scope of the agent's authority.(l) Authority of agent. The authority of an agent to make admissions, may be either express or implied from circumstances. (2) Thus, if the attorney for one party has dealings and declarations in other ootemporaneous affairs of the principal, from which a general agency might be inferred. Cobb t. Lunt, i Greenl. 503. In assumpsit for a merchant's account, to show payment, the defendant proved that L. was a brother-in-law of one of the plaintiffs, resided near him in the same city, was often at the plain- tiffs' store, and was in habits of intimacy with them ; and then offered his receipt for money on their account, which the court below received. Held erroneous ; for the above facta did not go to prove an agency. "Worman v. Boyer, 14 Serg. & Rawle, 212. The teller or clerk in a bank, making an entry in the bank-book of a customer, is the ^ent of the bank, not of the customer. Mech. & Farm. Bank v. Smith, 19 John. Rep. 115. The acts of the cashier of a bank, done in the ordinary course of business usually confided to such an officer, may well be deemed prima fade evidence that they fell within the scope of his duty. Said by Story, J., in Fleokner v. U. S. Bank, 8 Wheat. 35t. In an action for striking the de- fendant's carriage against the plaintiff's cart, it was held that what any one (the ladies for instance) in^the defendant's carriage answered, on inquiry as to the address of the owner, was admissible against him ; but not a statement by them that any damage done would be paid for. Beamon v. EUice, 4 Carr. & Payne, 585. An alteration having been made in the plaintiff's pass- book, by some person at his bankers', he inquired there why it was done, and received an answer from a person acting in the banking-house as a clerk ; and he offered this in evidence against the bankers. Held admissible. Price v. Marsh, 1 Carr. & Payne, 60. And vid. Barrett V. Deere, 1 Mood. & MaJk. 200 ; "Wilmot v. Smith, 1 Mood. & Malk. 238. In a case against a corporation for injuring the plaintiff's house by negligently pulling down their own, a letter written to the plaintiff by the defendants' surveyor, who had the management of their buildings, is to be presumed to have been written by him, in that capacity, and is therefore evidence against the corporation. Peyton v. The Governor of St. Thomas' Hospital, 3 Carr. & Payne, 363. So the possession of a merchant's note, by his clerk, the note being drawn in the usual form of a note for discount at the bank, is prima facie evidence of the clerk's authority to procure it to be indorsed and discounted. Ship Portland v. Lewis, 2 Serg. & Eawle, 191, 203. (See, also, Turner v. Yates, 16 How. U. S. 14 ; Thurman v. Wells, 18 Barb. 600 ; Bliss v. Cutler, 19 Id. 9 ; Owlsey v. Woolhofter, 14 Geo. 124. The declarations or representations of the agent when not expressly authorized by the prin- cipal, must, in order to bind him, be within the scope of his agency. New York Life Ins. & Trust Co. V. Beebe, 3 Selden R. 364; Olding v. Smith, 11 Eng. Law & Eq. 424; Tery v. Levy, 13 How. U. S. 345. The agent is a competent witness to prove his authority, given to him by parol, and that ho acted within its scope. Downer v. Button, 6 Poster (N. H.), 338.) (1) Coates V. Bainbridge, 5 Bing. 58. (2) See Lucas v. Godwin, 3 N. C. '?3'7. The authority may be shown by cu-cumstanoes. Dewz v. Greene, 16 Barb. '72; 14 G«o. 124, 9EC. X.] Authority of Agtnt. 517 made certain propositians to another upon matters in difference between them, such propositions will be evidence against the attorney's client, with- out further proof of his authority to make them than the fact that he was his attorney .(1) So, if one party refers another on a disputed fact to a third person as authorized to answer for him, he is bound by what his referee answers upon the occasion, as much as if the answers had been made by himself. For example, in an action for goods sold and deliv- ered, (2) where it appeared at the trial, that in a conversation between the plaintiff and defendant, the former asserted that he had delivered the goods by one C, and the defendant replied : " If 0. will say he did deliver the goods, I will pay for them," the plaintiff was allowed to give in evi- dence C.'s answer respecting the matter referred to him. It is upon this latter principle that the decision of arbitrators, whether professional or not, are binding upon the parties. And, in like mannerj where two parties had agreed to be bound by the opinion of a counsel upon the construction of an act of Parliament, his opinion was held to be conclusive between them.(3) In like manner, where a dispute had arisen in a mining district, and it was proved that the defendant had said that, if a miners' jury were called, and they should find a particular fact, he would pay for certain damage, and the jury did find such fact, it was held that this finding of the jury, coupled with the declaration, was evidence against him in an action to re- cover the amount of the damages.(4) A husband will not in general be bound by any admissions made by his wife, even where he is suing jure uxoris ; as where he is suing for wages earned by her, even her written receipt will not be evidence against him j(5) so, in an action by husband and wife for a debt due to the latter dwm sola, any admission made by her after marriage is inadmissible against the husband."(6) (1) Gainsford v. Grammar, 2 Camp. 9. See also Marshall y. Cliff, 4 Camp. 133. In the former case. Lord EUenborough, C. J., refused to permit the attorney himself to give evidence of what he had proposed to the adverse party, hut allowed it to be proved by a witness who had been present. Bnt in Griffith v. Davis (5 B. & Ad.), it was held, that the attorney for one party was a oompetent witness to prove a proposition made in his presence by his cUent to the adverse party ; and Park, J., and Patteson, J., dissented from Lord BUenborough's ruling as to the exclu- sion of the attorney's testimony. (2) Daniell v. Pitt, 1 Gamp. 366, n. ; S. C, 6 Esp. U. And see Lloyd v. WiUan, 1 Esp. 1T8 ; Williams v. Innes, 1 Camp. 364; Brook v. Kent, Id. 366, n. ; Burt v. Palmer, 5 Esp. 145 ; Gar- net V. Ball, 3 Stark. E. 160 ; Bretton v. Prettiman, Sir T. Eaym. 153 ; Hood v. Reeve, 3 C. & P. 632 ; Gardner v. Moult, 10 Ad. & EU. 464. (3) Price V. Holli^ 1 M. & S. 105. See alee Downs v. Cooper, 2 Q. B. 256. (4) Sybray v. "White; 1 M. & "W. 435. (5) Hall V. Hill, 2 Str. 1094; Alban v. Pritohett, 6 T. R. 680; Denn v. White, '7 T. R. 112. (6) Kelly v. SmaU, 2 Esp. 716. See James' Lessee v. Gordon, 1 Wash. 0. 0. 333, 335 ; Funkhouser v. Pogue, 8 Bng. (13 Ark.) 295 1 McKay v. Treadwell, 8 Texas, 1T6 ; Willis v. SneUing, 6 Rich. 280 j Crane v. Gough, 4 518 Admissions hy Agents, [CH. vni. But sucli admissions are evidence after her death, in an action in wbich tlie husband sues or is sued as her personal representative.(l) For the party's character as husband has nothing to do with such an action : and a wife, like any other person, may bind her executor or administrator. A wife's admissions will also be binding on the husband, if an author- ity to make them can be proved or inferred. Thus, where goods had been furnished for the wife's accommodation, while her husband occasionally visited her, it was held that she might be regarded as her husband's agent respecting them ; and that a letter from her, written within six years from the supply of the goods, containing an admission that the goods were un- paid for, was evidence (before Lord Tenterden's Act) to take the case out of the Statute of Limitations.(2) The authority of a wife to bind her husband by her admissions, seems to have been inferred in a more unob- jectionable manner in another case,(3) where it was proved that the wife managed her husband's business, and generally gave orders and paid for goods. These cases are mentioned as illustrating the principle of the rule in question ; but since Lord Tenterden's Act, (4) that principle is not appli- cable to the same state of facts, for the first section of that statute enacts that no acknowledgment or promise shall be suf&cient to take a case out of the Statute of Limitations, unless it be in writing, " and signed by the party chargeable thereby ;" and, therefore, an acknowledgment of a debt contained in a letter, written by the wife of a defendant in his name, and even at his request, will now be insufiicient, because the statute gives no authority to an agent to make the acknowledgment.(5) The authority of a wife to bind her husband generally by admissions, may be inferred from the circumstance that the business to which the admissions relate was usually conducted by her. Thus, in a case before Pratt, C. J., (6) his Lordship allowed that the wife's declaration, that she agreed to pay 4s. per week for nursing a child, was good evidence to charge the husband, as being a matter usually transacted by women. So, in an action for the education of a child, who had been placed with the Md. 316 ; Lasaelle v. Brown, 8 Blackf. 221. Her acta as his agent may be shown, and her de- claratiobs accompanying them (Murphy v. Hubert, 16 Penn. State E. BO ; Id. 196) ; and her ad" missions in regard to her separata estate. Hollingshead v. Allen, 17 Id. 276. (1) Humphreys v. Boyoe, 1 Mo. & R. 140. (2) Gregory v. Parker, 1 Camp. 395. It seems to be a strong decision, that the wife had an authority to make an admission years after the time when the goods were f\irnished. (3) Palethorp v. Furnish, 2 Esp. 511, n., S. P. ; Anderson v. Saunderson, 2 Stark. R. 204 ; S. C. Holt, B91. And see Clifford v. Burton, 1 Bing. 199; Emerson v. Blonden, 1 Esp. 141 ; Petty v. Anderson, 3 Bing. 170 ; Barlow v. Bishop, 1 East, 432 ; Ootos v. Davis, 1 Camp. 485 ; Barker t. Bay, 2 Russ. Ch. 0. 70 ; Palmer v. Sells, 3 N. & M. 422 ; Barker v. Vaughan, 4 Jur. 222, Exoh. See notes above. (4) 9 Geo. IV, c. 14. (5) Hyde v. Johnson, 2 N. C. 766. (6) AuoD., Stra. 627 ; B. N. P. 287. See also Palethorp v. Furnish, ui supro. CH. VIII.] Authority of Wife. 519 plaintiff by the defendant's wife (who was aunt to the child), evidence was held to be admissible to show that the wife was in the habit of ordering domestic articles which were paid for by the defendant — it being evidence, though slender, to establish her agency.(l) But a wife cannot bind her husband by admissions unless they fall within the scope of the authority which she may reasonably be presumed to have derived from him.(2) Thus, where a wife, in her husband's absence, carried on the business of a shop, and by his authority attended to all the receipts and payments ; still, a statement made by her to her husband's landlord, that she would pay the rent on a future day, and admitting its amount, was held not to be evidence against the husband, of the terms of the tenancy.(3) In the case of Fabrigas v. Mostyn,(4) a point arose which may serve as another example to illustrate the rule above laid down. A witness, who had been employed by the defendant to convey certain proposals to the plaintiff, explained them to him by an interpreter, from whom also he received the answer. The question was, whether the words of the inter- preter could be given in evidence by the witness, as the answer of the plaintiff, or whether the interpreter himself ought to be called, as the wit- ness understood neither the questions put to the plaintiff nor the answer made by him. Gould, J., ruled that the evidence of the witness was clearly admissible and sufficient. Here the interpreter was the accredited agent of the parties, acting within the scope of his authority, and in the execution of his agency. (5) (1) M'George v. Egan, Arn. Rep. C. P. 462 ; S. C, 5 N. C. 196. (2) By Alderson, B., 11 M. & "W. 204. (3) Meredith v. Footmer, 11 M. & W. 202. (4) 20 How. St. Tr. 122. (6) It was said by Lord Denman, C. J., in E. v. Adderbury, East (Inhabitants) (5 Q. B. 181, 196), that if the surveyor of highways to a township has advisedly made statements as to the lia- bility and practice of the township in respect of repairs, such statements will be admissible against the inhabitants of the township, as being made by their authorized ofSeial agent, and not merely upon the ground that the surveyor was an inhabitant ; but it may perhaps be questionable, if this diciwm rests upon sound principle, as a surveyor of highways can hardly be considered an official agent on a question of liability ; unless indeed he had been specially referred to as such. Note 145. — See per Marcy, J., in Benjamin v. Smith, 4 Wend. 334. And so the defendant may make the plaintiff himself his agent in the same way ; for where the plaintiff claimed a sum of money of the defendant, who denied it, but said if the plaintiff would swear to the correctness of the claim, he would pay it, and the plaintiff made affidavit accordingly ; held a valid promise, and that the defendant was concluded and could not show the affidavit untrue. Brooks v. Ball, 18 John. Rep. 331 ; DelesUne v. Greenland, 1 Bay, 458, S. P. T. in a letter to N. uses expressions supposed to amount to a challenge to fight a duel, and by postscript refers N. to H. (the bearer of the letter), if any further arrangements should be neces- sary. On an indictment against T., held that N. might give testimony of the conversation be- tween H. (the bearer) and himself against the defendant. State v. Taylor, 1 Const. Rep. S. C. 107, 108. The declarations of a third person, referred to and adopted by a party for one purpose, are not evidence against him for another. Thus, where the defendant said he would pay the interest of 520 Admissions hy Under- Sheriff. [CH. Till. Evidence of facts, by the admissions of agents, is receivable in criminal as well as in civil cases. Thus, on the impeachment of Lord Melville,(l) the House of Lords decided that a receipt, given in the regular and official form by Mr. Douglas (who, as it was proved, had been appointed by Lord Melville to be his attorney, to transact the business of his office of treas- urer of the navy, and to receive all necessary sums of money, and sign receipts for the same), was admissible as evidence against Lord Melville to establish this single fact : that a person appointed by him, as his pay- master, did receive from the Exchequer a certain sum of money, in the ordinary course of business. " The first step in the proof of the charge," said the Lord Chancellor, "must advance by evidence applicable alike to civil and to criminal cases ; for a fact must be established by the same evidence, Avhether it is to be followed by a civil or criminal consequence; but it is totally a different question, in the consideration of criminal jus- tice as distinguished from civil, how the noble person now on trial may be affected by the fact when so established. The receipt by the paymas- ter would, in itself, involve him civilly, but could, by no possibility, convict him of a crime." It may be observed, finally, that declarations made or instructions given by a principal to his agent, are not admissible in evidence for the former, where it is sought to affect a third party, unless it can be shown that such declarations or instructions were communicated to that party. Thus, where the plaintiff, through his agent, contracted with K. for the sale of goods, and the question was, whether they were sold on the credit of K. or of the defendants, it was held that a letter of instructions from the plaintiff to his agent, on the subject of the sale, not communicated to the defendants, was not admissible for the plaintiff.(2) 4. Of admissions by under-sheriff, bailiff, attorney, counsel, &c. It has been seen that the admissions of an under-sheriff are admissible in evidence against the sheriff^ where they tend to charge himself as being the real party in the cause, as in an action for an escape.(3) But where they have not that tendency, they are inadmissible. Thus,^ in an action property to Mrs. D., the plaintiff, which her father had left in the defendant's hands for her use, provided the father so directed ; held, that this did not authorize evidence of the father's declara- tion that he had placed the property in the defendant's hands for the support of Mrs. D. Duval and Wife v. Covenhoven, 4 Wend. Rep. 561, 564. And where an obligation is to pay A. to the satisfaction of B. ; in a suit on the obligation the declarations of dissatisfaction by B. are not ad- missible. B. is a corupetent writness to the point, and should be examined. M'Cullough v. Mont- gomery, 7 Serg. & Eawle, Vl. Deeds between other parties become evidence, when referred to in a deed between the parties to the suit. Blair v. Hum, 2 Eawle, 104. Where one agrees to abide by the decision of another upon a disputed fact, who accordingly decides, this is not conclusive, but is evidence for the jury. Craig v. Craig, 3 Eawle, 412. (1) 29 How. St. Tr. 146, 164. (2) Smethurst v. Taylor, 12 M. & W. 545. (3) Supra, p. 488. SEC. X.J Declarations accomjpanying Official Acts. 521 against the sheriff for taking illegal poundage, declarations of the under- sheriff, after he was out of office, were held not to be admissible to prove that the bailiff, charged with having committed the extortion, was the sheriff's authorized agent. (1) Declarations accompanying officiaJ acts. "Where, indeed, the declarations of the under-sheriff accompany official acts, they are in the nature of original evidence,(2) though the admissions of a bailiff or sheriff's officer, where the authority is limited to the partic- ular duties specified in his warrant, are not evidence against the sheriff.(3i) What a bailiff says whilst he has a party in custody, concerning the cir- (1) Snowball v. Goodrioke, 4 B. & Ad. 541. This decision impugns the general doctrine oi Lord Kenyon, 0. J., in Drake v. Sykes (7 T. R. Ill), as to the sheriff being identified with th& under-sheriff to aU intents. Note 146. — In an action against the sheriff for a false return, admissions by his deputy were allowed as evidence against him ; viz : a letter from him to the plaintiff's attorney admitting that he received an execution sent to him. And the court put this on the general ground that the deputy who acts, is the real defendant, and answerable over to the sheriff. Tyler v. Ulmer, 12 Mass. Rep. 163 ; per Maroy, J., in Benjamin v. Smith, 4 Wend. 334, S. P. In Hecker v. Jarret (3 Bin. 404), the admissions of the deputy in respect to the legality of an arrest made by him, on which it was sought to charge the sheriff, these admissions being made after the deputy had taken the prisoner to jail, were rejected by Brackenridge, J., at Nisi Prius ; and on motion for a new trial, the cause went off on other grounds. In Mott v. Kip (10 John. Rep. 418), the Supreme Court of New York held, tha.t the admissions of the deputy to the plaintiff's attorney in respect to the business in. progress, are admissible to affect the sheriff if made while the pro- cess in question is in the deputy's hands and in a course of execution. ' The admissions are then to be taken as part of the transaction, as the acts of the deputy, who is to be regarded as the sheriff's agent. In this case, the admission was that the deputy had suffered a voluntary escape. On the same ground, an admission by the deputy, e. g. of an escape, though the admission be made after the return day of the writ, c. g. a ca. sa., if whUe it is in his hands, is admissible as evidence against the sheriff. Wheeler v. Hambright, 9 Serg. & Rawle, 390 j (Stewart v. Wells,, 6 Barb. '79. And it is held that the sheriff, who has been indemnified by the plaintiff for making a levy, acts for and in behalf of the plaintiff in the execution, who is the substantial party in interest, in the defence of an action against the sheriff lor the property levied on. Howland V, WiUetts, 5 Selden, 1'70. If the plaintiff in the execution gives the deputy special instructions to act in a particular manner, as to sell the property taken on credit, he thereby makes the depOity his agent so far as his instructions which are acted upon imply a departure from the hne oi his legal duty. See Gorham v. Gale, 6 Cowen, 46'7 ; 1 Id. t39 ; Coming v. Southland, Sheriff,. &e^ 3 Hill, 522 ; 3 Selden, 458. The return to an execution, although made by the deputy in the sheriff's name, is the act of the sheriff, and when the question comes up ddreetly between one of the parties tO' the execu- tion and the sheriff, the latter is not permitted to gainsay it, or impeach the truth of the return, Sheldon v. Payne, 3 Selden, 452 ; Xownsend v. Olin, 5 Wend. 20'7 ; Gardner v. Hosmer, 6 Mass. 32'7; Haynes v. Small, 22 Maine, 14 j Barrett v. Copeland, 18 Tt. 69} Paxton. v. Steokel, 2 Burr. 93.) (2) Tabsley v. Noble, 1 Ld. Raym. 190. See Kemplaud v. Macauley, Peake 65 ; where it was considered that the circumstance of the baUiff giving a bond of indemnity (which was relied, on in Tabsley V. Noble,. with regard to the undersheriff), did not make a bailiff's admission, receivable. (3) Drake v. Sykes, 1 T. R. 111". It was said by Lord EUenboroughi C. J. in North v. Miles (1 Camp. 389), that a bailiff's general conversation' -wifh an indifferent person is not evidence- against the sheriff. The bailiff's authority must be proved. in every particular case. Id. 522 Admissions by Attorney. [CH. Vlil. cumstances of the arrest, may be admissible against tbe sheriff as part of the act for which he is responsible.(l) And it has been held that the relation of sheriff and officer continues whilst the writ is in course of exe- cution, and therefore that the sheriff may be affected by the officer's declarations after the return of a fieri facias, and before a warrant is made for sale, so long as the goods are in the hands of the officer.(2) In such cases the declarations of the officer are properly original evidence, and not in the nature of hearsay or admission. It has been held, also,(3) that what was said by a bailiff, when asked by the plaintiff's attorney, before the return of the writ, why he did not execute it, was evidence against the sheriff. The action was for a false return of non est inventus. Lord Ellenborough, C. J., said that the conversation must be considered as part of the act touching the execution of the writ. And he observed, that where a thing is carried on by one as a quasi principal, what he says in the course of the transaction has been held, on great consideration, to be evidence against those he represents. It has been seen that, where an infant sues by his guardian, the declara- tions of the guardian are not admissible against the infant.(4) By attorney. "With respect to admissions made by attorneys, they are considered as having an implied authority to make any admission for the purpose of obviating the necessity of proving any fact upon a trial, as where an attor- ney gives a direct and formal admission of the execution of a deed, or of (1) Bowsher v. Cally, 1 Camp. 391, n. On the subject of the proof of the bailiff's authority, upon which there have been many conflicting decisions, it has been held sufficient to prove an examined copy of the vreit on which the bailiff's name was indorsed, and that a person of that name actually executed the writ, and that the course of the sheriff's office was that the name of the bailiff to whom the warrant was granted, was usually indorsed on the writ. Scott v. Mar- shall, 2 C. & J. 238. (2) Jacobs V. Humphrey, 2 0. & M. 413, (3) North V. Miles, 1 Camp. 389, (4) Note 14'7. — Eccleston v. Petty (Garth. '79), is also reported in 3 Mod. 258, by the title of Ecoleston v. Spoke, where the same point was resolved as in Carthew. The same case is men- tioned, 2 Sid. '70, in a memorandum at the foot of Leigh v. Ward. The confessions of an infant are admissible against him, the same as that of adults. Said in an action against him for bas- tardy. Mather v. Clark, 2 Aik. 209 ; Wilcox v. Sheldon, cited Id. 189. But the jury should weigh it with reference to his age and understanding. Id. The capacity to commit a crime necessarily supposes the capacity to confess it ; and a boy only twelve years and five months ol4 was convicted, and executed for murder on his own confession. State v. Guild, 5 Halst. 163, 189 ; Aaron's Case, cited Id. 189. And these decisions appear to be ftiUy sustained by the authorities referred to in Halstead, 189, viz i Leach's Hawk. b. 1. c. 1, p. 1 ; 4 Bl. Com. 23 ; Poster, 70. But his confession should be received more cautiously on account of his age. 5 Halst. 189, 190. (That the admissions of an infant are admissible in evidence against him in civU as well as criminal actions, was distinctly held in Haile v. Lillie (3 Hill R. 149) ; as to the effect of them, see M'Coon v. Smith (Id. 14'7). But an infant ia not estopped by his admission that he was of iull age. 6 Sand. 224.) SEC. X.] Admissions by Attorney. 52S a dishonor of a bill, or where lie makes propositions on behalf of his client.(l) Thus, in an action against the defendant as acceptor of a bill, where his attorney had served a notice on the plaintiff to produce all papers relating to a bill, described in the same terms as the one sued upon, and which the notice stated to have been " accepted by the defendant" — this was held prima facie evidence of the defendant's acceptance.(2) So, an undertaking by an attorney on the record to appear for two persons, described in the undertaking as joint owners of a ship, is evidence of joint ownership.(3) Admissions by attorneys may also be made indirectly. Thus, it has been held that an attorney's admission of the handwriting of the attesting witness to a deed, was tantamount to an admission of the due execution of the instrument.(4) But an admission by the defendant's attorney of the due execution of an instrument mentioned in the declaration, will not preclude the defendant from taking advantage of a variance. (5) And it is not everything that an attorney may happen to state in the course of conversation, which will be evidence in the cause.(6) Thus, in an action for use and occupation, where a witness stated that he had heard from the plaintiff's attorney that there was an agreement in writing, it was held that this was not suifi- cient evidence of the existence of an agreement, so as to render its pro- duction necessary .(7) Admissions, also, that are expressly made by an attorney "without prejudice," are, as has already been seen, inadmissible in evidence, (8) As to the proof of a person being attorney in the cause (so that his admission may bind the party), it will be sufficient, in general, to prove (1) Gainsford v. Grammar, 2 Camp. 9. (2) Holt V. Squire, B. & M. 282. (3) Marshall v. CUff, 4 Camp. 133. (4) Milward v. Temple, 1 Camp. 3'75. (5) Goldie v. Shuttlsworth, 1 Camp 10. (6) Young V. "Wright, 1 Camp. 139, 141; Parkins v. Hawkshaw, 2 Stark. R. 239; Doe d. Hulin V. Richards, 2 C. & K. 216 ; Wilson v. Turner, 1 Taunt. 30 ; Fetch v. Lyon, 9 Q. B. 14'7. (1) Watson V. King, 3 0. B. 608. See also Fetch v. Lyon, 9 Q. B. 147. Note 148. — If the client be not present when the admission is made by his counsel or attor- ney, the current of authority would seem clearly to be that such admission cannot be used against the client out of the particular cause. We had occasion to cite several oases bearing directly and indirectly upon this question, under a head where we thought they more properly ranged themselves, viz : the extent of an agent's authority to make admissions binding upon his principal. See note 141. We there, also, had occasion to notice the distinction between such admissions made under the special authority of the attorney or counsel, and the power of the client himself, or hia more general agent, while engaged in managing the cause. (The attorney in a cause may waive irregularities and informalities in the cause so as to bind hia client (Hanson v. Haitt, 14 N. H. 56) ; but cannot waive a substantial right of his client withou his consent (Howe v. Lawrence, 2 New Jersey, 99) ; or compromise and discharge the claim. Derwort v. Loomer, 21 Conn. 245 ; Walker v. Scott, 8 Bng. (Ark.) 644 ; Wilson v. Wadleigh, 36 Maine, 496. See notes 12T, 129.) (8) Supra. 524 Admissions by Gounsel. [CH. VIII. tliat lie is the attorney upon the record ;(1) yet it has been held, that a letter written to a plaintiff's attorney before action brought, by the attor- ney who afterwards appears in the cause for the defendant, is not evidence of a fact admitted therein without further proof that the defendant author- ized the communication.(2) When an attorney has been one regularly constituted as the attorney in the cause, admissions made by his managing clerk or agent will have the same effect as if made by himself.(3) An admission, for the purpose of the trial of a cause, may be used upon a new trial, (4) even where there has been an alteration in the pleadings, if the alteration does not affect the fact admitted.(5) Generally speaking, admissions made by an attorney are not admissible in criminal cases. Thus, on an indictment for perjury, where it appeared that the attorneys on both sides had agreed that the formal proofs should be dispensed with, and that that part of the prosecutor's case should be admitted, Lord Abinger, C. B., would not permit the case to be tried on these admissions ;(6) his Lordship said, in such a case he could not allow any admission to be made on the part of the defendant, unless it is made at the trial by the defendant or his counsel.(7) Admissions by counsel. Admissions by counsel stand much upon the same footing as those made by attorneys ; and it has been held, with respect to them, that a special case, signed by the counsel on both sides, for the opinion of the court above, and stating facts proved at the trial of the cause, is admissible as (1) Marshall v. Cliff, 4 Camp. 133 ; Gainsford v. Grammar, 2 Camp. 9. (2) Wagstafif v. Wilson, 4 B. & Ad. 339 ; Burghart v. Angerstein, 6 C. & P. 695 ; Pope v. Andrews, 9 0. & P. 564. In Marshall v. Chfif (4 Camp. 133), the attorney's letter, relied upon to prove the joint ownership, contained an undertaking to appear for them, which was a step in the cause. In Boberts v. Gresley (3 C. & P. 380), the party, whose letter was produced, had already acted as agent for the defendant. (3) Griffiths v. Williams, 1 T. E. 110; Standage v. Creighton, 5 0. & P. 406 ; Taylor v. Wil- lans, 2 B. & Ad. 845, 856 ; Truslovs v. Burton, 9 Moore,, 64; Taylor v. Foster, 2 C. & P. 195. See Meyer V. Sefton, 2 Stark. R. 274, as to letter of attorney with client's signature. Note 149. — Where the town agents of the defendant's attorney gave an admission to the plaintiff's attorney that the printed copy of a private act of Parliament should he receivable in evidence without formal proof; held, that it was not necessary to prove the handwriting of such agents, the admission having been made iona fide, and under the sanction of the defendant's attorney. Truslove v. Burton, 9 Moore, 64. As to the powers of attorneys or counsel to make admissions in the cause, which shall bind or affect their client on other occasions, whether such admissions be oral or in writing, by case bill of exceptions, bill of particulars, or demurrer, see notes, supra, particularly note 141, at the introduction of the first subdivision, to that note. (4) Elton V. Larkins, 1 Mo. & R. 196 ; Doe d. Wetherall v. Bird, 1 0. & P. 6. A summons may be taken out to withdraw the admissions. (5) Langley v. Oxford (Earl), 1 M. & "W. 508. (,6) R. V. ThornhiU, 8 C. & P. B15. C?) In cases of felony, it is the constant practice of the judges at the assizes to refiise to allow even counsel to make any admission. SEC. X.] . Admissions by Principal 525 evidence of those facts on a new trial.(l) And where it appears from the whole conduct of a cause, that a particular fact is admitted between the parties, the jury have a right to draw the same conclusion as to that fact, as if it had been proved in evidence ; and to draw such conclusion as to all the issues on the record, though the particular fact admitted goes to support only one issue.(2) It seems doubtful how far general statements made by counsel in ad- dressing the jury, are to be taken as admissions of facts, which it may not be necessary for the other party to prove. In an action of libel relating to a check, to which the defendant pleaded a justification, the plaintiff's counsel in his opening made a full statement of the facts as to the check, which he stated had been given by the plaintiff to a third person, and had afterwards been paid by the plaintiff; but he adduced no evidence on this part of the plaintiff's case; Lord Denman, 0. J., ruled, that the counsel for the defendant was entitled to call for the production of the check, after notice, without showing that it was in the plaintiff's possession in any other way than by the opening of his counsel, and that, if the check was not produced, secondary evidence of its contents was admissible.(3) His Lordship observed, that the opening of very particular circumstances, and then not proving them, was a new practice, and was not correct. But in a later case,(4) where trover was brought for a colt, and it was essential, in order to entitle the defendant to notice of action, that it should be shown by him that the colt had been distrained. Pollock, 0. B., ruled that the opening of the plaintiff's counsel, who had stated that the colt had been distrained, did not dispense with proof of that fact on the part of the defendant. Admissions by the defendant's counsel on a former trial have been rej jected as evidence against the client on a new trial.(5) Admission by principal not evidence against surety. It is a general rule, founded on principles of justice in regard to the re- lation of principal and surety, that the surety ought not to be affected by an admission made by his principal ; although he may be affected by de- clarations or statements made by the principal, when they are connected (1) Tan Wart v. Wolley, K. & M. 4. See also Edmunds v. Newman, Id. 5, n. In equity a party has been obliged to produce cases submitted for the opinion of counsel, but not the opinions, Preston v. Oarr, 1 T. & J. 175 ; Bolton v. Liverpool (Corporation), 1 P. Coop. 22; S. C, 3 Sim. 467 ; 1 Myl. & K. 88. That a statement prepared by an attorney for the opinion of counsel, is evidence against a party, or those identified in interest with him, see Heath (Bishop) v. Winches- ter (Marq.), 3 K 0. 211. (2) Stacey v. Blake, 1 M. & "W. 168 ; by Lord Abinger, C. B., in Bolton v. Sherman, 2 M. & W. 395, 403. (3) Dunoombe v. Daniell, 8 C. & P. 222. (4) Machell v. EUis, 1 C. & K. 682. (5) CoUedge v. Home, 3 Bing. 119. (Mofat T. "Witherspoon, 10 Ired. 185.) 526 Admissions by Principal, . [CH, VIII. with the business in respect of which the surety becomes bound, and are made by the principal at the time of transacting that business.(l) Thus where a person had become surety by a bond for the faithful con- duct of a clerk, it was held, in an action upon the bond, that an admission by the clerk, made after he was discharged, of various sums which he had embezzled, was not receivable in evidence against the surety.(2) So in an action upon a guaranty to pay for goods sold and delivered to a third person, what such person has admitted respecting the delivery of the goods is not evidence to charge the person giving the guaranty.(3) Entries made by a deceased person in the course of duty, or by which he has charged himself with the receipt of money, being admissible as against all the world, (4) are of course evidence against a person who has become his surety that he would keep his accounts faithfully. (5) This will be a proper place for referring to admissions which are re- ceivable as evidence against persons having privity of interest. Admissions, evidence against privies. Admissions are not only receivable against the parties who make or authorize them, but also against persons identified in interest with those parties. The rules for the admissibility of such evidence are analogous to those which are found in the doctrine of estoppels, and which govern the admissibility of verdicts, judgments, and depositions. The reader is there- fore referred to the second part of this work, which treats of written evi- dence, for considerable illustration of the present subject. It has, indeed, been necessary to anticipate some portion of what would properly belong to the second part of the work (particularly as regards answers in chan- cery), for the elucidation of the points which belong to the present chapter. (1) See Dunn v. Slee, Holt, 401. (Nor is a surety aiieoted by a judgment recovered against his principal, adjudging him to have been guilty of fraud and misconduct as a general guardian ; the surety not having been a party to the suit (Clark v. Montgomery, 23 Barb. 464 ; Douglass v. Howland, 24 Wend. 35-58 ; Coan V. Osgood, 15 Barb. 583 ; Snell v. Allen, 1 Swan (Tenn.), 208) ; holding that principal's admis- sion is not admissible against his surety, unless it be a part of the res geske. Walker v. Forbes, 25 Ala. 189.) (2) Smith V. Whittingham, 6 C. & P. '78. In Cutler T. NewUn (Manning's Dig. N. P. 13'7), on the execution of a -writ of inquiry on an mdemnity bond, an admission by the principal of the amount of damnification was considered by Holroyd, J., inadmissible. In Perohard v. Hamilton (1 Esp. 394), which was an action by a sheriff upon a bond to indemnify him against defaults of his bailiff, a written admission by the bailiff of having received levy money, was held by Lord Kenyon, C. J., to be admissible against the defendant. It was so ruled by him on the ground that the bailiff was in fact the defendant in the action : but there seoma to have been no evidence to show that the defendant was indemnified by the bailiff; and as the bailiff was alive, it would appear that he might have been called as a witness. (3) Evans v. Beattie, 5 Esp. 26. (4) See by BaUey, B., in Gleadow v. Atkin, 1 0. & M. 423. (5) Goss V. Watlington, 3 B. & B. 132; Whitnash v. George, 8 B. & C. 556; fiiddleton v. Melton, 10 B. & 0. 317. See also M'Gahey v. Alston, 2 M. & TV. 206. SEC. X.] Admissions hy Privies. 527 Thus, witli regard to privies in blood and privies in law, the declara- tions of a deceased occupier of land, that he rented it under a certain per- son, are evidence of that person's seizin against a party claiming as the heir at law of such occupier, to explain the nature of the occupation, and to show that it was not adverse. (1) The declarations of an intestate . are evidence against his adniinistrator.(2) But in an action by a special ad- ministrator, appointed under 38 Geo. Ill, c. 87, during the absence from the country of the executor named in the will,(3) it was held, that the de- clarations of the latter made by him while he was the acting executor, were not admissible against the plaintiff.(4) With respect to admissions made by persons who have been privies in estate with those against whom the admissions are used, the evidence, after their decease, is generally admissible on a different principle, as being a declaration against interest. And when the persons are alive, the evi- dence may be admissible, in some cases, as explanatory of acts done or for- borne, or of the fact of possession. But without reference to either of these principles, it would seem that an admission by a proprietor or occu- pier possessing any interest, would be evidence as to the nature and ex- tent of that interest, against a party who was in privity of estate with him. (5) The receipts for a modus, given by a vicar's lessee, are evidence against the vicar, by reason of the privity of estate.(6) An answer in chancery is admissible in evidence against a privy in estate.(7) A statement in a lease by a landlord has been held admissible against a person who (1) Doe d. Human v. Pettett, 3 B. & A. 223. If this case is to be treated as a case of admis- sions, it would be immaterial that the declarant was deceased. But the evidence may be con- sidered also as a declaration explanatory of possession, or as a declaration against interest. See Peaceable d. Uncle v. Watson, 4 Taunt. 16; Doe d. Baggaley v. Jones, 1 Camp. 36Y. These points are illustrated by the doctrine concerning the admissibility of verdicts against privies in law and in blood. See post, Vol. II ; Locke v. Norbonne, 3 Mod. 141 ; Outram v. Morewood, 3 Bast, 346 ; Co. Litt. 352 a ; Com. Dig. tit. Estoppel, B ; 3 T. R. 365. (2) Smith V. Smith, 3 N. C. 32. The plaintiff was regarded as claiming under the intestate, though, in fact, he need not have done so. See also Humphreys v. Boyoe, 1 Mo. & R. 140. (See also, Jones v. Jones, 1 Poster (N. H.), 219 ; Smith v. Morgan, 8 Gill, 133 ; Harvey v. An- derson, 12 Geo. 69 ; Colgan v. Philips, V Rich. (S. C.) 3. See Brown v. Mailler, 2 Kern. 118, per Denio, J. (3) See Taynton v. Hannay, 1 Tes. 460 ; S. C, 3 B. & P. 26. (4) Rush V. Peacock, 2 Mo. & R. 162. (5) See Doe d. Manton v. Thrupp, 9 Bing. 41 ; Walker v. Broadstock, 1 Esp. 458 ; Davies v. Pierce, 2 T. R. 63 ; Doe v. Rickerby, 5 Esp. 4 ; Tindal v. Whitrow, 1 C. & P. 22 ; Doe d. Pritch- ard V. Jauncey, 8 C. & P. 99. With respect to the amount of requisite interest in a person whose declaration can bind another by reason of privity of estate, see post as to Verdkis. (This subject, of the admission of evidence against privies, has been considered in a former place.) (6) Jones v. Oarrington, 1 C. & P. 329. It would seem that the receipts were admissible on a more general ground, as being declarations by persons (deceaaed) against interest. ("7) Sussex (Earl) v. Temple, Ld. Raym. 310. In this case the court went too far in determin- ing that the answer might be read against persons in occupation of property, on proof that it was the reputation of the county, that the lands had belonged to the person making the answer. 528 Admissions by Privies, [CH. VIII. claims under a subsequent lease of the same land.(l) A letter, written by a vicar, in respect of the property of the vicarage, is evidence against his sucoessor.(2) An admission by a tenant in possession, defendant in an action of eject- ment, is evidence against a co-defendant, who defends as a landlord. (3) But it seems that the mere declarations of tenants will not in general be evidence against their reversioners, (4) and the declarations of a former occupier of the defendant's land have been ruled not to be admissible against the defendant, upon a question whether the plaintiff had an easement in the land.(5) A case, stated for the opinion of counsel, touching the right of presentation to a living by a bishop, was held to be evidence against a subsequent bishop of the same see, on a question touching the right of pre- sentation to the same living.(6) An ancient statement, concerning the payment of tithes of a parish by a modus, signed by the rector for the time being, is evidence against a succeeding rector.(7) An answer to a bill filed in the Court of Exchequer, in a suit instituted for tithe hay by a vicar against the rector and others (owners of lands in the parish), in which answer the defendants disputed the vicar's claim, and declared that the tithes in question belonged to the rector, will be evidence, in an action for tithes by a succeeding rector against owners or occupiers of the same lands, for the tithes of which the former suit was instituted.(8) "It appears to me," said Lord EUenborough, C. J., " not to be res inter alios acta, but inter eosdem acta ; and was not only evidence, but strong evidence, against the defendant, who stood in the same place, by derivation of title and by legal obligation, as (the former owner of the same land) ; and (that former owner), upon his oath, in a suit against him by the vicar, has declared that the tithe is due to the rector, and not to the vicar; 'and now that same person, in effect (that is, the present owner, who purchased of the former owner the very lands over which tithes were now claimed), is de- raigning the title of the rector in favor of the vicar."(9) Although ancient books of survey and ancient maps, when they are not (1) Crease v. Barrett, 1 C, M. & R. 932. See Doe d. Strode v. Seaton, 2 A. i E. 111. (2) Doe d. Coyle v. Cole, 6 0. & P. 359. (3) Doe d. Mee v. Litherland, 4 A. i E. 384. (4) By Patteson, J., in Tickle v. Brown, 4 A. & E. 378. (5) Scholea v. Chadwick, 2 Mo. & R. 507. (6) Meath (Bp.) v. Winchester (Marq ), 3 N. C. 183. The decision was also rested on the ground of the statement being against interest. There was no personal knowledge of the facts contained IQ the statement, but they were all evidenced by written documents. (7) Maddison v. Nuttall, 6 Bing. 226. See also De Whelpdale v. Milburn, 5 Pri. 485. Receipts of incumbents have been received upon the same ground, though it would seem that in both cases the declaration was admissible, as being against interest. (8) Dartmouth (Lady) v. Roberts, 16 Bast, 334. The suit was abandoned by the vicar, who from that time had acquiesced. See also Travis v. Chaloner, 3 Gwill. 1237 ; Ashby v. Power, Id. 1239 ; Benson v. Olive, 2 Gwill. 701 ; Sussex (Earl) v. Temple, 1 Ld. Raym. 310. (9) 16 East, 339, 340. SEC. X.] Surveys, Entries. 529. in the nature of public documents, have been in some cases considered as not being legitimate evidence of boundary, even wliere tbey miglit seem, upon principle, to be receivable on tke ground tbat the boundary was a matter of public interest and concern ; yet this species of evidence is fre- quently available by way of admission, where there is a privity of estate between the person against whom the survey or map is used and the per- son directing it to be made. Thus it was ruled by Holt, C. J., that if A. be seized of the manors of B. and C, and, during his seizin of both, he causes a survey to be taken of the manor of B., and afterwards the. manor of B. is conveyed to E., and afterwards there are disputes between the lords of the manors of B. and 0. about their boundaries, this old survey may be given in evidence.(l) In like manner, entries of receipts of rents by a deceased steward have been admitted, in a suit between two persons, who both claimed under the employer of that steward.(2) But as a person cannot be regarded a privy in estate with a subsequent possessor of the estate, except during the time when the estate was in his own possession, it has been held, that an answer in chancery, respecting the title to an advowson, filed by one who had been formerly seized of the advowson, but who had conveyed it away twenty years before the answer, was not admissible against a person claiming the advowson through him.(3) And admissions by a mortgagor, made after he had parted with his interest by a settlement, have been held not to be admissible on behalf of a mortgagee, to show that the money had actually been advanced on the mortgage, the mortgagee seeking to avoid the settlement as being voL untary.(4) Eulo applicable in cases of personalty. This rule as to privity of estate is generally applied to cases of real property, but the principle is equally applicable in matters relating to per. sonalty, and where a chattel or a personal contract has been assigned, the declarations of the assignor are generally admissible against the assignee. Thus it has been held, upon an issue between two persons, whether a third person died possessed of certain personal property, that evidence might be given of a declaration, made by that third person, that he had (1) Bridgman v. Jennings, 1 Ld. Jlaym. 734 ; B. U. P. 283. And see Davies v. Pierce, 2 T. B. 43 ; AUott V. Wilkinson, 4 GwilL 1586 ; 2 E. & Y. 293. That such a survey is not evidence against a stranger; by Holt, C. J., Anon., 1 Ld. Raym. 734. And see 1 Str. 95 ; 5 T. B, X23 ; 12 Vin. Ab. 90, pi. 12. It ffas been said, tbat an old map has been allowed in evidence, where it came along with the writings, and agreed with the boundaries adjusted in an ancient purchase. GUb. E7. 78. (2) Doe d. Strode v. Seaton, 2 A. & E. 171. As to tithe receipts, see 3 E. & Y., Tithe Oases 1129, 1131. Cases where the evidence would have been receivable as a declaration against in- terest, have sometimes been determined on the principle under consideration, (3) Gully V. Exeter (Bishop), 5 Bing. 171. (4) Doe d. Sweetland v. "Webber, 1 A. & E. 733. Vol. I. 34 530 Admissions by Privies, [CH. VIII. assigned the property, the party, against -whom the declarations were adduced, claiming under that person.(l) But where the question was whether certain goods which had been seized under a Ji. fa. against A. were his property, or the property of the plaintiff, wlto claimed under a sale ; and in order to show that the sale was fraudulent, it was proposed to give in evidence a statement made by A., when the execution went in, and while he remained in possession, it was ruled that the evidence was not receivable.(2) So upon the trial of an issue, directed to ascertain whether certain goods which had been seized by the sheriff under afi. fa. against a third party, at the suit of the defendant, were the goods of the plaintiff, who claimed them under an as- signment, it was ruled by "Wightman, J., that a statement, made by the third party before the execution went in, was not admissible on behalf of the plaintiff, as the execution creditor did not claim under the third party, but adversely to him.(8) And upon a similar issue, Maule, J., rejected ' the declarations of the debtor, as to the property in the goods, upon the ground that, if they did not belong to the plaintiff, the defendant wonld succeed on the issue, whether they belonged to the debtor or to any other person except the piaintiff.(4) An admission by a person who takes a bankrupt's goods in execution, that he knew an act of bankruptcy had been committed, is not evidence against the person who takes the goods by assignment from the sheriff, where the admission is subsequent to the assignment.(5) With respect to admissions by persons in possession of chattels or ne- gotiable securities being evidence against subsequent holders, which may be thought analogous to admissions by privies in estate, it appears to be a rule, that where a person must recover through the title of another, he is bound by the declaration of the party through whom he claims. Thus, if a person bring an action upon a bill of exchange, the declaration of a person, who, at the time when such declaration was made, was holder of the bill, and who had not parted with it till after it was due, is evidence against the plaintiff, being made by one according to whose title his own must stand or fall.(6) So in an action by the indorsee against the acceptor, where the defence is that the bill was obtained by fraud, declarations of (1) Ivat V. Finch, 1 Taunt. 141. The judgment also proceedBd on the ground of a declaration against interest; Thioh seems to be a safer ground, as the third person had parted -Nvith the pos- session before the declaration was made. ' (2) Roberts v. Justice, 1 C. & K. 93. (3) Proaser v. Gwillim, 1 0. & K. 95. (4) Stothert t. James, 1 C. & K. 121. (5) Deady v. Harrison, 1 Stark. R. 60. (6) Benson v. Marshall, cited in Shaw v. Broom, 4 D. & E. "fSl. See also Beauchamp v. Parry, 1 B. & Ad. 89. SEC. X.] By Holders of Securities. 531 the drawer to that effect are admissible, if it can be shown that the plain- tiff was privy to the fraud.(l) But it seems that the analogy with respect to the admissions of privies in estate is not adhered to, where the title to negotiable instruments is de- rived from persons who have made admissions, but where there is not any existing identity of interest. In such cases, the right of a person holding by a good title is not to be cut down by the acknowledgment of a former holder, that he had no title. Thus, in an action by the indorsee against the maker of a promissory note payable with interest on demand, the de- clarations made by the payee, whilst the note was in his possession, to the effect that he gave no consideration for it to the maker, were held in- admissible for the defendant, on the gtound that the plaintiff could not be identified with the payee, the bill not being overdue at the time of the in- dorsement.(2) The declarations were not those of a person holding the negotiable security under the same circumstances as the party to the action. It has been held,(3) that as the indorsee of a promissory note does not claim by the title of the indorser, but has a title of his own as indorsee, he ought not to be affected by any declarations of the indorser, — the note not being taken without consideration, or after it was due, — notwithstand- ing the declarations were made whilst the indorser was in possession of the note. But where it appears that the indorsee is merely the agent to sue for the indorser, the declarations of the latter, whilst he was holder, are evidence against the former.(4:) Admissions respecting the subject matter of a cause, by a person who at the time of making them had the same interest in such matter as one of the parties to the cause, are admissible in evidence against that party, though the person who made the admissions is alive and might be called as a witness.(5) The same rule applies to admissions of agents, which are receivable in evidence against principals, as being binding upon them. There might seem to be some reason for a distinction between the rule re- specting agents, and that which relates to declarations against interest, in- (1) Peekham v. Potter, 1 0. & P. 232. (2) Barough v. White, 4 B. & C. 325 ; explained in 'Woolway v. Rowej 1 A. & E. 116. See also PhiUips V. Cole, 10 A. & B. 106 ; Smith v. De "Wnutz, R. A M. 212. (3) Beauchamp v. Parry, 1 B. & A. 89. An exception is there made as to declarationa co-- temporaneous with the making of an inatrutnent, and the case of Kent v. Lowen (1 Camp. 171), was referred to, where letters from the payee to the maker were admitted, which stated an usu- rious consideration for the note. It was said, that if the declarations had been made (as in the case of Kent v. Lowen) at the time of the contraet, the case might be different. It is to be ob- served, that in Kent v. LoWen, the letters were the usurious contract itself and it can make no difference whether an act consist of oral declarations or not. Some confusion is, however, intro- duced into the case by Lord Ellenborough, stating that evidence of an atft done was admissible against persons claiming under those who did the act^^whereas the admissibility of the eviden<» does not appear to depend on the privity of the patfties. (4) Welstead v. Levy, 1 Mo. & B. 138. See also Harrison r. VaUance, 1 Bing. 45. (5) Woolway v. Eowe, 1 A. & B. 114 ; Briokell v. Hulse, 1 A. & B. 454. 532 Admissibility of Confessions. [CH. VIII. asmuch as in the latter case, the party to the suit is to be affected by the declaration of a person with whom he has no community of interest, and for whose assertions he is not responsible. SECTIOlSr XI. Exception to the General Rule as to Hearsay, in Cases of Confessions made by Prisoners. The confessions of prisoners are received in evidence on the same prin- ciple upon which admissions in civil suits are received, viz : the presump- tion that a person will not make an untrue statement against his own interest. In criminal cases, a deliberate confession carries with it a greater probability of truth than an admission in civil cases, the consequence being more serious and penal: "habemus optimum tesiem, confttentem reum.'\l) But it is to be observed, there may not unfrequently be mo- (1) See Lamtie's Case, 2 Lea. 0. C. 554 ; Gilb. Ev., by Loft, 216 ; "Warwiokshall's Case, 1 Lea. C. C. 263 ; S. C, 2 East P. 0. 658. Note 150. — ^A prisoner may be convicted on his voluntary confession, made to any person, of the greatest crime, although totally uncorroborated by any single circumstance. Such corrobo- ration -was holden essential by the older editions of Leach's Crowri Law, which was followed by RozeU, J., in State v. Aaron (1 South. 243). But this doctrine stands corrected by the later editions (see that of 1815, Vol. I, p. 311, "Wheeling's Case), and the correction was followed by Ewing, C. J., in State v. Guild (5 Halst. 185, 186 ; 2 Curw. Hawk. ch. 46, § 37, S. P.). Such confession is, in most cases, the highest evidence that can be given. Per Nott, J., in The Cor- poration of Columbia v. Harrison, 2 Rep. Const. Ct. 215. Other cases have, however, manifested great distrust of confessions which are not judicial. In one, where a horse was stolen, and two men returned with him, bringing the prisoner, who confessed to the owner that he stole the. horse, neither of the bringers being sworn, the court directed an acquittal, though they said it would have been otherwise had the prisoner stated conflrmatofy circumstances, which had been' proved. But a naked confession, unattended with circumstances, is not sufficient. The prisoner might have been misunderstood, or his confession perverted, or he might have been operated upon. The smallest mistake might prove fatal. A confession, from the very nature of the thing, Is a very doubtful species of evidence. State v. Long, 1 Hayw. 455. And the courts which go against the necessity of corroborating circum- stances, yet agree that the corpus delicti must be proved by other evidence, in order to render the confession operative. Thus, in larceny, other proof must be given of the taking of the goods; or, in murder, the fact of death. State v. Guild, 5 Halst. 185. Confessions by infants are competent, as well as those of adults. Rex v. Thornton, Ry. & Mod. Cr. Cas. 21. " He who is a rational and moral agent, and can merit the infliction of legal sanctions, must bo able to detaU his motives and acts. If, therefore, the prisoner be of an age to be punished, he was of an age to confess his guilt." Per Southard, J., in Aaron's Case, 1 South. 246 ; cited by 5 Halst. 189 ; 4 Bl. Com. 24 ; York's Case, Post. 10. And in one case the' con- fessions of a boy under eleven (State v. Aaron, 1 South. 231), and in another under thirteen years of age (State v. Guild, 5 Halst. 163), were received and acted upon in charges of murder. The latter verdict was sustained by the confessions being connected with and fortified by cir- cumstances (Id.) ; but in the former a new trial was granted, for want of such ingredient. 1 South. 231, 238, 243. Aa an infant under seven is not capable of crime (per Kirkpatrick, 0. J., in State v. Aaron, 1 South. 238), it follows that his confessions aio not receivable. And in SEC. Xl.] Admissibility of OdnfessioTis, 533 airtheae oases of extra-judioial confession by infants under the age of discretion, it seems desira- ble, if not essential, that corroborating circumstances should appear. The question of their necessity was much considered in the two cases last cited, as well as their nature, their mode of application, and the cautions under which they are to be received. They are said to be such as serve to strengthen the confession, to render it more probable ; such, in short, as may tend to impress a jury with a belief of its truth. They are distuiguished from facts which, independent of the confession, will warrant a conviction ; for then the verAct would stand, not upon the confession,, but upon those independent circumstances. " To corroborate is to strengthen, to confirm by additional security, to add strength. The testimony of a witness is said to be corrob- orated when it is shown to correspond with the representation of some other witness, or to comport with some facts otherwise known and established. In this view of the subject, the evidence in this cause affords circumstances corroborating, in a singular and remarlsable manner, the confessions which were proved. I shall briefly state them. The prisoner said he went to the house of the deceased for thB purpose of borrowing a gun. It was proved a gun had been kept there, and that the prisoner knew it. He said she {the deceased) refused him the gun, and accused him of having done mischief to her pig and pigeons. It was proved that she had enter- tained a belief that such mischief had been done by him. He confessed he had struck her with a yoke. 'The witness who first saw her after the disaster testified that he found a yoke, and blood on it, lying near her. The prisoner confessed that as he was going out, after she had refused his request, he saw the yoke hy the door, picked it up and went back. Jonathan Van Kirk, who resided in the house, testified that when he went (!ut about noon to work, the yoke was by the side of the door. The prisoner stated that she was on the hearth. M'Coy, the first who saw her, found her lying in the corner of the fireplace. He stated that she was starching a cap. A cap, says M'Coy, lay on the hearth by the side of her. To Philip Knowles he related the story, and confessed he struck her a first, second, third and fourth time. M'Coy testified there were four wounds — one on the top of her head, one on the right temple, one on the right eye, and one on the under jaw. The minute detail of incidents, and the steady uniformity of his relations to a number of persons, are not among the least striking of the circumstances which mark these confessions. One supposed discrepancy only has been pointed out. To one of the witnesses he said the deceased was sitting by the fire, blowing the fire. To another, that she was starching a cap and stooping down on the hearth. No difficulty, however, seems to exist in reconciling these representations, by supposing that he spoke of different points of time." Per Ewing, 0. J., in State v. Guild, 5 Halst. 187, 188. Again; Aaron, a colored boy under twelve years of age, a slave, confessed that he had drowned a child by throwing him into the well. He was seen at play with the child, near the well, shortly before the child was missed, no other person being with them ; in searching for the child the prisoner was found up in a cherry tree he pretended the child had gone up the road, looked round and called for him ; went to bed at night without his supper ; admitted, next morning, he saw the child fall into the well ; gave no reason why he neglected to teU of it, but quietly continued his work. When the child was found and taken out of the well, he came up and (seeing the corpse lying on the earth) said, " So, you have found Stephen." These were relied on by Mr. Justice Southard as corroborating circumstances. The State v. Aaron, 1 South. 232, 241. But a new trial was granted in this case. Kirkpatrick, 0. J. (at p. 240), says the circumstances were not brought out by the confes- sion. The confession itself was pregnant with no circumstances to give it authority, or in any way to corroborate it. In this Kozell, J., concurred. Where a confession was made long after the prisoner was arrested and imprisoned, detailing several circumstances which were found to be true, and which, if known by the prisoner at the time of the alleged oSence, would tend materially to corroborate his confession, it was held a very laudable caution to submit to the jury whether the circumstances might not have been learned by the prisoner through the information of others, and he enabled in that way to state them, and to charge that, if the jury believed this to be the case, they should disregard ihe proof of their truth as to any tendency it might have to fortify the confession. The State v. Guild, 5 Halst. 188. The oral confession to a private person may be received, though the prisoner be examined judicially before a magistrate, who puts his examination in writing. Eex v. Carty,' Dublin Oyer and Terminer, 1797, 1 Maonally, 45. Accordingly, on trial for manslaughter, the, state read the 534 AdrmmiMMty of Confessions, [CH. Vili. tives of hope and fear inducing a person to make an untrue confession, which seldom operate in the case of ordinary admissions.(l) And, fur- ther, in consequence of the universal eagerness and zeal which prevail for the detection of gudt, when offences occur of an aggravated character, — in consequence also of the necessity of using testimony of suspicious wit- nesses for the discovery of secret crimes, — the evidence of confessions is subject, in a very remarkable degree, to the imperfections attaching gene- rally to hearsay evidence. It is to be observed also, that words in crimi- nal cases are often misreported through ignorance, inattention or malice, and extremely liable to misconstruction, and that the evidence cannot be disproved by negative evidence, in the same manner as facts.(2) For these reasons, the statements of prisoners are often excluded from being given in evidence, in cases where they would be unobjectionable as the admissions of a party to a civil suit. Confessions made jn examinations. Confessions of prisoners are often made in the course of their examina- written confession of the prisoner, made before the magistrate, and then offered evidence of his conversations on other occasions than the examination. This was objected to, but admitted and held well. " Otherwise, if a criminal had twenty times acknowledged the commission of a fact, and should afterwards refuse to confess it upon an examination before the justice, for the very purpose of preventing any proof of his former acknowledgments, he would, by his own acts, defeat the ends of justice." State v. Wells, Coxe, 424, 429. Where primary evidence cannot be obtained, as by the production of counterfeit money, the confession may be used as secondary evidence of its contents. A confession of the prisoner was accordingly received that he had counterfeited guineas, though the guineas were not produced, being out of the power of the prosecution. The State v. Phelps, 2 Root, &1. The following case was decided upon the point of relevancy : On trial for murder by poison on the high seas, an offer was made to prove that the prisoner, after his arrival at Philadelphia, and after the alleged crime committed, proposed to the witness to take passage with him to Bal- '■timore,ito mingle arsenic with the food of the crew, so that they would vomit, when he, the prisoner, should be called on to attend them as physician; and he would then administer arsenic again in such quantity as would destroy them, and then he and witness would go off with the vessel — adding, that he had had experience of it. This was admitted ; the conversation in respect ■ to the passage being necessary to explain what is italicised, which, so connected, became mate- rial; but otherwise would not be. ITnited States v. Tardy, 1 Peters' 0. 0. Rep. 468. (1) See Post, Or. Law, 243 ; 4 Bl. Com. 351. Instances have occurred of persons confessing fthemselves guilty of crimes of which they were innocent ; and of innocent persons acting I, under the imputation of crimes in a manner affording a strong presumption of guilt. See Harri- son's Case,, cited 1 Lea. 0. 0. 264, n. See also the confessions of witches: Mary Smith's Case, 2 iHow..St. Tr. .1049 ; Case of the Essex Witches, 4 Id. 811 ; Case of the Suffolk Witches, 6 Id. ^ 641 ; Case of the Devon Witches, tried by Lord Hale, 8 Id. 1011. (2) -See Post. Cr. Law. 243. See also the speech of Mr. Adams, in Orossfleld's trial for high treason (26 How. St. Tr, 61), where it is observed, that the person relating the confession is gene- rally relieved from the apprehension of punishment ; and that what people have said upon a subject Shocking or otherwise exciting, is usually repeated with exaggeration. And see by Jllderson, B,, in R. v. Simons, 5 C. A P. 540, where a prisoner's conversation with his wife was repeated differently by the witnesses; by Parke, B., in Earle v. Picken, 5 C. & P. 542, n, supra; Coleman's iCase, cit. Joy on Conf. 108. See fui-ther 2 Russ., Cr. & M., by Greaves, 824, n. ; GreenL.Ev.JjaW. SEC. XI.] Made in JExaminations. 585 tion before magistrates. These examinations are taken in tlie course of a judicial proceeding, and according to prescribed forms ; consequently the evidence of confessions contained in them is obviously free from many of the objections incident to various other species of hearsay evidence. The principles applicable to confessions in general apply to such as are con- tained in examinations before magislrates, but as the latter are required to be taken in writing, it has been thought expedient to treat of examinations apart from the general subject. A more particular account of such exam- inations, and the mode of proving them, will be found in the second part of the work, which, however, is unavoidably anticipated in some measure in the present section. Various points also, as Jo the verbal proof of con- fessions made in the presence of magistrates, will be considered in the chapter oa Secondary Evidence.(l) (1) Note 151. — A prisoner, being under examination before a magistrate on a charge of felony, a statement was made in his presence by the solicitor for the prosecution, which the wit- ness called to prove it said, he believed had been taken down in writing ; for this reason oral evidence was refused. Eei v. Hollingshead, 4 Carr. & Payne, 242. And if it appear that the examination of the prisoner was reduced to writing, oral evidence of such examination cannot be received, nor anything which should properly have been inserted. M'Kenna's Case, 5 C. H. Eeo. 174, 116, before Golden, Mayor. The written examination must be produced. Robetaille's Cases, before Golden, Mayor, 5 0. H. E^c. 111. And in one case the same court said, if the magistrate profess to take the examination according to the statute, oral testimony of it shall not be received, Collins' Case, 4 0. H. Eec. 139. But if it appear that in fact a confession made before a magistrate was not reduced to writing by him, it is admissible in evidence. The case in which such testimony was received was one of maiming, a misdemeanor ; but was said to stand on the same ground as a felony. The English practice was admitted to be different, but the court say there is an impropriety in admitting a confession meide before a private man, and not one made before a justice because he has omitted to perform his duty. The statute is only directory, and the state ought not to be prejudiced by the , omission. State v. Irwin, 1 Hayw. 112. The English doctrine was conceded on the authority of two old cases misreported in Ijeach. Eex t. Jacobs, Leach, 285, and Hinxman's Case, Id. 286 (old edition). But these cases were afterwards corrected by the learned reporter in the subsequent editions, by which they appear to have all along conformed to the doctrine as laid down in North Carolina. The doctrine of those cases in truth was, that where the confession clearly appears not to have been reduced to writing, oral evidence of it may be received, though it was before the magistrate ofBcially. This correction may be seen by consulting the 2d ed. of Leach, 254, 255 ; and the 3d ed., 349 ; and see Macnally, 49, 50, to the same point. In Hall's Case (Macnally, 40), it was also held that if the confession be not taken in writing, oral evidence of it may be given. S. C, post, note 153. And so of a confession to a magistrate when a prisoner is not before him for the purpose of examinar tion. Collins' Case, before Colden, Mayor, 4 0. H. Eeo. 139. And of acts of the prisoner done before the magistrate, may be proved by parol, though they took place while the examination was going on, and were not detailed in wiitmg. EobetaiUe's Cases, before Colden, Mayor, 5 C. H. Eec. ITl. So if the examination be taien in writing before the committing magistrate, and by reason of some irregulsirity, it is inadmissible as a written examination, parol evidence of what the pris- oner said at the time of the exammation, may be received. In this case the examination was before the coroner, who was allowed to state from memory what the prisoner said on the occa- fion of the examination, as to so much as was inquired for. And the prisoner was found guilty, and afterwards executed. Eex v. Reed, 1 Mood. & Malk. 403. See E. S. of New York, pt. 4, ch. 2, tit. 2, § 16, stated ^ost 536 Admissibility of Confessions, [ch! Vlll. Where the complaint of the prosecutor was reduced to ■writing in the police, and the confes- sion of the prisoner foUo-wed, stating that " the charge in the foregoing affidavit is true ;" and further, that he obtained goods by false pretences from several persons not named in the indict- ment ; held that such a confession, so referring to an affidavit, which neither was, nor could be given in evidence, should have no influence with the jury. Steel's Case, 5 Cit. H. Ree. 5. 2 R. S. of New York, pt. 4, ch. 2, tit. 2, § 14, stated ^os«. But where a prisoner, when before the committing magistrate, was sworn by mistake, being taken for a witness, and as soon as the mistake was discovered, the deposition which was begun was destroyed, and the prisoner cautioned, and after this he made a statement, this was held receivable in evidence. Eex v. TVebb, 4 Carr. & Payne, 564. If it be taken in a case of misdemeanor, it is also inadmissible, being first regularly proved ; and it was read in such a case before the now statute (2 R. S. VOS, stated jjosi), authorizing it. Steel's Case, 5 C. H. Rec. 5. And see State v. Irwin, 1 Hayw. 112, stated ante. The following is the statute of Ifew Tork on this subject. By pt. 4, oh. 2, tit. 2, § 12, persons arrested under a warrant issued for any offence, are to be brought before a magistrate ; a proper return on the warrant is to be indorsed and signed, and the warrant delivered to the magistrate. By § 13, the rqagistrate is then to examine the complainant and witnesses on oath in the pris- oner's presence. ' By § 14. " The magistrate shall then proceed to examine the prisoner in relation to the offence charged. Such examination shall not be on oath ; and before it is commenced, the prisoner shall be informed of the charge made against him ; and shall be allowed a reasonable time to send for and advise with counsel. If desired by the person arrested, his counsel may be present during the examination of the complainant and the witnesses on the part of the prosecution, and during the examination of the prisoner." By § 15. " At the commencement of the examination, the prisoner shall be informed by the magistrate that he is at libertyto refuse to answer any question that may be put to him." By § 16. " The answer of the prisoner to the several interrogatories shall be reduced to writing by the magistrate, or under his direction. They shall be read to the prisoner, who may correct or add to them ; and when made conformable to what he declares is the truth, shall be certified and signed by the magistrate." Under the stat. of Phil, and Mary, it does not appear to be necessary that the magistrate caution the prisoner, or warn him of the effects of his exammation as evidence (Macnally, 38), or that he is not bound to confess, or that his confession should be voluntary, or that it may be used in evidence against him. People v. Maxwell, before Riker, Recorder, New Tork General Sessions, 1 Wheel. Cr. Caa. 163. But even under the English statute of Phil. & Mary, or 1 Geo. IT, his statement ought not to be taken tin the evidence against him is gone through ; and he should then be asked if he has anything to say in answer to the charge. This was strongly suggested as the proper course by Garrow, B., who, however, received a confession made before the evi- dence had been gone through ; but expressed strong doubts of its legality. Rex v. Fagg, 4 Carr. & Payne, 530. On one occasion, the confession was drawn out by questions put by the magistrate, the prisoner first having been refti,sed professional assistance, though he had requested to be allowed the aid of an attorney ; and though the confession was held technically receivable, Littledale, J., ad- verted to counsel having been refused, and thought the case ought not, for that reason, to be further pressed; and the prisoner was acquitted. Rex v. Ellis, Ry. & Mood. N. P. Rep. 432. It has often been ruled by the criminal courts of New Tork, that a questioning of the priaoner by the justice forms no objection to his examination being read. People v. Smith, 1 Wheel. Cr. Cas. 54, New Tork General Sessions, before Riker, Recorder, Oct. term, 1822. And this was allowed though the whole examination stood by way of question and answer ; and one question was improper, viz : whether the prisoner had not before been guilty of petit larceny. People v. Smith, before Riker, Recorder, New Tork General Session, Oct. term, 1822, 1 Wheel. Cr. Cas. 54. The same general doctrine was held before Holroyd, J., at Carlisle sprmg assizes, 1824. 2 Stark. Ev. 52, note. See the statute of New Tork as to this, ante. It is not necessary that the examination should be signed by the prisoner, in order to make it evidence. People v. Johnson, before Eiker, Recorder, 1 Wheel. Cr. Cas. 193. And Lambe's SEC. XI.] The Whole to he Produced. 537 ■Whole confession to be produced. As was observed in treating of admissions, it is necessary that the whole of what a prisoner has said, on the occasion of making a confession, should be related entire. This rule did not prevail in early times, when it was nsual, in state trials, to select arbitrarily from a prisoner's examination any part that might be prejudicial to him, though the whole examination, if taken together, might have had a different effect.(l) It has been seen Case has always been considered a leading one in this country. Id.^; Pennsylvania v. Stoops, Addis. 381, 383, S. P. Where the confession is made to the district attorney, and by him reduced to writing, he may, notwithstanding, give parol evidence of it. The writing being a mere memorandum, need not be produced. Patton v. Freeman et al„ Coxe's Eep. 113. See Rex t. HoUingshead, i Carr. & Payne, 242. "Where a confession has been signed by a prisoner, it is read by the ofBcer of the court; bnt where the examination has been taken down by some person, and not signed by the prisoner, the person who took it down is called as a witness, and he states what the prisoner said, refresh- ing his memory from the paper. This was done by a magistrate in the case of Eex v. Jones (Carr. Supp. 13), and by a magistrate's clerk, who had taken down what the prisoner said before the committing magistrate, in the case of Eex v. "Watkins, tried before Mr. Justice Bosanquet, at the Oxford spring assizes, 1831. See note a to the case of Eex v. Swatkins, 4 Carr & Payne, 648. (There are three kinds of confession: 1. A confession in open court of the prisoner's guil^ which is conclusive, and renders any proof unnecessary. 2. The next highest kind of confession is that which is made before a magistrate. 3., The lowest is that which is made to any other person, and requires to be sustained by proof of corroborating circumstances. The People v. Hennessey, 15 Wend. 147. A confession to a magistrate, who told him beforehand that it would be better for him to-make a full confession, is not admissible. The People v. Ward, 15 Wend. 231. In a case of confession out of court, the corjpus delicti need not be fuUy proved; even slight circumstances wiU be sufficient to sustain a conviction. The People v. Badgley, 16 Wend. 53. See Ward v. The People, 3 Hill, 395. , When a confession is induced by threats or by a promise or hope of favor, held out to the accused by a magistrate or by the officer making the arrest, it is not admissible in evidence against him (The State v. Bostick, 4 Harring. 563 ; Commonwealth v. Taylor, 6 Cush. 605) ; and the effect is the same if the hope of favor be held out to the accused by a third person in presence of the officer. Morehead v. The State, 9 Humph. 635. It is no objection to the admissibility of the confession that it is made by a servant to her mistress (Regina v. Moore, 12 Eng. Law & Eq. 583; Eegina v. Sleeman, 22 Id. 606); or by a slave to a person in whose charge he. is placed by his master tied and bound (Spence v. The State, 11 Ala. 192 ; Seaborn v. The State, 20 Id. 15 ; The State v. Taigneur, 5 Eich. 391) ; but see as to confessions to a private person in- duced by hope. Stephen v. The State, 11 Geo; 225 ; Tan Buren v. The State, 24 Miss. 512; The Commonwealth v. Morey, 1 Gray (Mass.); 461; Jim, a slave v. The State, 15 Geo. 535; Wyatt V. The State, 25 Ala. 9. An extra-judicial confession is not sufficient to uphold a conviction, or an indictment for mur- der, unless the death of the murdered person is shown by other evidence. Stringfellow v. The State, 26 Miss. (4 Cush.) 151. If a confession leads to a discovery of the remains of the de- ceased, that part of the confession leading to the discovery ia admissible, though made in the hope of immunity. The State v. Motley, 1 Eich. (S. C.) 321.) (1) See, amongst many other instances, the declaration of Garnet, in his handvrriting, read upon his trial for the Gunpowder Plot. In the original confession, in the State Paper Office, there are letters in Sir E. Coke's handwriting, pointing out to the officer of the court what he was to read, and which produce quite a different effect from that of the whole declaration taken together. 2 Jardine Crim. Tr. 351. 538 Admissibility of Confessions, [CH. Vlll. that the rule laid doTvn in The Queen's Case,(l) respecting admissions and confessions, requires not only that those parts of a conversation should be received which explain or qualify the language of a confession, but such, also, as are not connected with the confession, provided they relate to the subject matter of the charge.(2) And though it may, in strictness, be (1) 2 B. & B. 298. (2) The ground aaaigned by Abbott, C. J., that it would not be just to take part of a conversa- tion as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue, seems open to .exception. ViM sypra, p. 413, 415, On Admissions. See, also, Prince V. Samo, 7 A. & B. 634, 635 ; Supra, p. 415. Note 152. — A witness, in giving a converBation with a prisoner, though others are named and implicated in the same conversation, must give the whole, including the names, exactly as it occurred, and if the other persons are on trial and, cannot be affected by it, it is for the judge to teU the jury so. Eex v. Heame, 4 Carr. & Payne, 215. And so, too, of a prisoner's confession in an examination before a magistrate, it must be read with the otber names in it just as it is. Eex V. Clewes, 4 Carr. & Payne, 221. So of a letter from one of the prisonera. Eex v. Fletcher, 4 Carr. & Payne, 250. This seems to be the only natural place in the text, relating to the confessions of prisoners, where the doctrine can come in, that their confessions, as well as all others, shall be taken together; and that, when given in evidence by the prosecution, their confessions, like those of any other party, shall be received as evidence in favor of themselves. To the first of these heads the whole doctrine, which we brought forward and illustrated by many cases, ante, note 118, of what shall be comprehended as parts of one entire confession, the exclusion of declarations made at other times, and. in note 122 the comparative Weight due to the exculpatory branch of the confession, and how it may be contradicted, with other matters treated in those notes, wiU be found almost literally applicable ; and we shall, therefore, avoid repeating those matters here. That the confessions of a criminal shall be taken together, in the ordinary sense of that phrase, is extremely weU settled. Per M'Kean, 0. J., at the close of his charge, in Eespublica v. M'Carty, a case of treason, 2 DaU. 86. This has been expressly extended to the examination before the magistrate. Hioka' Case, 1 C. H. Eec. 66 ; People v. Weeks, N. T. Gen. Sea., Oct. 1818, Jud. Eepos. 138; People v. Johnson, N. Y. Oyer & Term., Edwards, 0. Judge, presiding, 2 Wheel. Or. Cas. STY. Though it was said, in another case, that the district attorney might read such part of the written examination as he pleased, and the prisoner could not demand to have the whole read. Peogje v. Jordine, N. T. Gen. Ses., Oet. 1818, Jud. Eepos. 107, 108. f' Confessions, fcH. VIH. sTie told the prisoner that, if she went to S. again, sTie would be a great deal worse off, and she said to her several times, both going along the road to the prosecutor's house, and also in the house, and also when she spoke to her out of doors, that it would be a great deal better for her if she would confess, and a great deal worse for her if she did not confess. Littledale, J., at the trial, allowed evidence to be given of what the prisoner said, reserving the question as to the admissibility of the evidence, for the opinion of the judges. It appeared that when the prosecutor's mother-in- law said to the prisoner : " Now, Sarah, you lighted the bunch of matches, and put it into the thatch ;" the prisoner said, " Yes, I did." The proce- cutor's mother-in-law then told her daughter (the prosecutor's wife), what had passed, and she then came out, and in the presence of the mother-in- law, asked the prisoner what she did it for ; whether it was for anything against the family ? She said, " No." The mother-in-law asked her if any one persuaded her to do it ? She said, " No," and that she had no malice. The prisoner in her defence asserted her innocence, and said that her mistress had told her that if she would confess to it she should have her liberty, and she added, that she confessed on purpose to get her liberty, and that they frightened her to do it. It can scarcely be doubted, that the prisoner was wearied, if not Avorried, into making a confession, and considering her tender years, and the rela- tionship in which the person who continually pressed her to confess, stood with regard both to her master and her mistress, there can be little doubt that the girl would be under an impression, and not an unreasonable one, that the threats and promises were held out to her by one who had the means of carrying them into execution.(l) (1) See Joy on Conf. 9, 10, and 2 Russ., C. & M. by Greaves, 842, n. Note 156. — " As the human mind under pressure of calamity is easily seduced, and liable in the alarm of danger to acknowledge indiscriminately a falsehood or a truth, as different agita- tions may prevail, a confession, whether made upon an official examination or in discourse with ■private persons, which is obtained from the defendant either by the flattery of hope or by the impression of fear, however slightly the emotions may be implanted, is not admissible evidence ; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction." 2 Curw. Hawk. 595, cited from Leach's Hawk, and approved in State v. Aaron, 1 South. 239. And see State v. Fields, stated ante, note 155. The prisoner was threatened by the prosecutor, that unless he confessed the larceny charged on him, he would be sent to the state prison ; whereupon he confessed, and repeated the same confession the next day in the police office, in the prosecutor's presence, when the magistrate wrote it down. The case went to the jury without objection ; but Eadclifl', Mayor, charged, that although prima /acie a confession made in the police office should be presumed to have been taken freely and voluntarily, yet should the jury believe from the circumstances, that at the time the confession was reduced to writing the mind of the prisoner was under the influence of fear previously excited, it would be their duty to reject such written confession equally with the other. Yerdiot not guilty. Williams' Case, 1 0. H. Record, 149. A boy twelve yeare and five months old, accused of murder, was encouraged to confess by a promise of impunity, " If you will confess, you will probably get clear," by one among several who were interrogating him. His examination was taken the next day before the magistrate, who cautioned him solemnly and repeatedly to tell nothing but the truth, but knew nothing of the previous practices with tha SEC. XI. J Suspicion of Inducement 551 Where a person has made a confession in the hope of obtaining a re- ward or pardon from government, and of being admitted queen's evidence, his confession is admissible against him, unless it appear, that, at the time of making the confession, he knew that a reward had been offered ; if he was aware of the offer, before he made the confession, it would not be admissible.(l) If a party has been admitted queen's evidence, and has confessed, and upon the trial refuses to give evidence, his own confession will be evidence against himself.(2) Suspicion of inducement given, to be removed. For the purpose of introducing a confession in evidence, it is unneces- sary, in general, to do more than negative any promise or inducement held out by the person to whom the confession was made.(3) However, if there be any probable ground to suspect inducement in obtaining the confession, such a suspicion ought, in the first instance, to be removed. In a case where a constable, having a prisoner in custody, left the room where the prisoner was detained, when another constable entered the room, on which the prisoner at once made a confession to him, it was held necessary for the prosecutor to call the first constable, for the purpose of proving that he had not held out any inducement.(4) Where an inducement has been held out to the prisoner by a prosecutor boy. He confessed ; but the examination was rejected, on the presumption that the boy's mind ■was not clear of the previous influence. State v. Guild, 5 Halst. 163, let, 168, 118, 119. The justice, after the high constable had arrested the prisoner, told his wife in his presence in the afternoon, that if what she had told him was true, it would be better for the prisoner to con- fess; and the next morning, before the committing magistrate, he did confess, though then cautioned by him not to expect any favor ; but the court refused to receive the confession against the prisoner. They said they would presume the influence lasted till the examination. People v. Robertson, before Riker, Recorder, N. T. Gen. Sess. Nov. Term, 1822 ; 1 Wheel. Or. Gas. 66. A confession made before the police clerk, after a threat to the prisoner by one of the marshals while bringing her to the office, that if she did not tell all she knew, she would be put into the dark room and hanged, was rejected. People v. Rankin, New York 0. and T., before Van Ness, J. ; 2 Wheel. Cr. Cas. 468, 469. With respect to a police confession, made after a promise 'by the prosecutrix to the prisoner, and before the prisoner's apprehension, the effect of which did hot appear to have been counter- acted, the New York general sessions say : " The confession before the police ofBcers, we have ever received as good evidence ; although before the prisoner was apprehended, a promise of favor may have been made by persons not attached to that department." Per Curiam, including Radclifi; !M!ayor, in Charity Jackson's Case, 1 C. H. Rec. 26. See note 155, aadpost, 157. (1) R. V. Boswell, Car. & M. 584. See also R. v. Dingley, 1 0. & k. 631 ; Berigan's Case, 1 Jr. Oirc. Rep. Ill ; Joy Conf. 27 ; 1 Russ., Cr. & M., by Greaves, 831. But see Hall's Case, 2 Lea. C. C. 559. (2) R. V. Buriey, 2 Stark. Ev. 13 ; by Pollock, C. B., in R. v. Bingley, 1 C. &, K. 640. (3) R. V. Clewes, 4 0. & P. 233. (4) R. V. Swatkiiis, 4 0. t P. 550. It was afterwards shown that the prisoner was not under any charge at the time, but that the first constable was detaining him as an unwilling witnens ; and the evidence was received. 552 Admissihility of Confessions, [CH. VIII. or by a person in authority, it seems, in general, that a confession made to such persons at a subsequent time would not be receivable ;(1) that is, unless it were clear that by a full explanation and caution they afterwards put an end to all inducement, and left the prisoner to speak or not, freely and without bias, as if no inducement had ever been made. If a person of authority, such as a magistrate, holds out an inducement to confess, a confession afterwards to a person of an inferior authority, as a turnkey, seems not to be admissible. Such a confession has been held not to be receivable, where the inferior officer did not caution the prisoner.(2) Caution after iudnceraent. Although an inducement has been held out by a prosecutor, constable, or other person, yet, if the magistrate before whom he is afterwards taken distinctly warns him that what he says may be given in evidence against him, a confession, made after such caution, will be receivable.(3) In a case, tried before Bayley, J., (4) where it appeared that the prisoner, on being taken into custody, had been told by a person who came to assist the constable that it would be better for him to confess ; but, on his being examined before the committing magistrate on the following day, he was frequently cautioned by the magistrate to say nothing against himself; a confession, under these circumstances, before the magistrate, was held to be clearly admissible. In another case, it appeared that a constable told the prisoner he might do himself some good by confessing ; the prisoner afterwards asked the magistrate if it would be any benefit to him to confess : on which the magistrate 'said he could not say it would, and the prisoner then declined confessing ; but afterwards, in his way to prison, he made a confession to another constable, and he confessed again in prison to another magistrate ; the judges were unanimous in holding that the confessions were admissible in evidence, on the ground that the magistrate's answer was sufficient to efface any expectation which the constable might have raised.(5) (1) See E. V. Nate, 1 Burn J., by D'Oyly & "Wma. 1086 ; 2 Euas., Cr. k, M., by Greaves, 832, 833 ; E. V. Sexton, Id. ; E. v. Smith, Id. And see 2 East P. C. 658. (2) E. V. Cooper, 5 C. & P. 535. (3) E. V. Howes, 6 C. & P. 404. And see 11 i 12 Viot. c. 42, post, Vol. II. (4) E. V. Lingate, Derby Lent Ass. 1815, MS. (5) E. V. Rosier, Easter Terra, 1821, MS. (So, where the prisoner confesses \inder an inducement, and then makes a confession after he has been distinctly apprised by the officer making the arrest that the offence cannot be settled. ■Ward V. The People, 3 Hill E. 395. Where the confession is not made to a person in authority ; as where the prisoner confessed to the prosecutor, after he had been put in jail, the latter saying he thought it better for all concerned for the guilty party to confess, more honorable in all cases ; the confession was received. The Commonwealth v. Morey, 1 Gray (Mass.), 461. To exclude the confession, it must appear to have been drawn from the prisoner by threat, or promise of some advantage, such as escape from, or mitigation of punishment. Smith v. The Commonwealth, ] Gratt. 134. It must be voluntary, not induced by hope or fear. Spears v. Ohio, 2 Ohio (N. SEC. XI.] Caution after Inducement. 553 So -where a magistrate liad told a prisoner charged with murder, that, if he was not the man who struck the. fatal blow, and would disclose all he knew respecting the matter, he would use his influence to protect him ; but on subsequently receiving a letter from the secretary of state, refusing a promise of pardon, he communicated its contents to the prisoner ; it was held, that a confession which the prisoner afterwards made to the- coroner, who had also duly cautioned him, was admissible»(l) S.), 583 ; Stephen v. The State, 11 Geo. 225. If it appear in evidence that the prisonel^'s hopes or fears had been previously practiced upon, it must be shown that he was warned of the conse- quences before making the confession. Tan Buren v. The State, 24 Miss. 512 ; 22 Eng. Law & Eq. 604; 12 Id. 590; Commonwealth v. Taylor, 5 Gush. 605.) (1) E. T. Clewes, 4 C. * P. 221. Note 157. — State v. Guild, 5 Halst. 163, 179 to 181, stated infra; Commonwealth v. Boyer, 2 Wheel. Cr. Gas. 149, 150. The prisoner was committed for arson, and was visited in the jail by various persons, among whom were the inspectors of the prison ; and various means were used to persuade and terrify him into a confession. A short time after his commitment, he made a full and apparently voluntary confession to the mayor ; nothing, however, having been done to re- move the influence of previous promises or threats. His confessions were received, but the jury acquitted him. They were told that they might decide on the credit to be given to the confes- sions ; and that merely cherishing the hope of mercy would not, though the confessions were made under such influence, render them inadmissible. Though the prisoner, in this case, was acquitted of the arson, he was afterwards indicted, and convicted on the same facts of a misde-. meaner. The Commonwealth v. Dillon, 4 Dall. 116. The prisoner, charged with conspiring to obtain money from a bank, was arrested on civil process at the suit of the bank, and remained with the arresting officer several days, at the house of the president of the bank, who promised him favors if he would confess. He did so, after a considerable lapse of time from the promise made, and immediately afterwards said the confession was free and voluntary; yet the court presumed the confession, and everything which followed, were influenced by the promise ; and said it made no difference whether the confession was mado to one having a concern in the administration of justice or not. Thorn's Case, before Golden Mayor, 4 C. H. Kec. 81. The prisoner being arrested for a burglary, was told by a stranger, in presence of the prose- cutor, that, being in custody, his confession could not be used as evidence against him ; and an- other stranger told him that being young, if he would confess, it would be more to his credit. He accordingly confessed ; and two or three days after, there being no immediate influence exer- cised, he made a fuller confession. Both held inadmissible, though corroborated by circum- stances ; as the latter might have been made under the first influence. This shall be presumed to continue till palpably done away. State v. Roberts, 1 Dev. '259. But, as intimated by the last case," the presumption of a continuing influence may be repelled ; and then a, subsequent confession becomes admissible. Bex v. Sexton, stated ante, note 155. Thus where the prisoner, being arrested by D., was induced to confess by a promise from D., the court would not receive a subsequent confession made to D., or any one in D.'s presence; but said that a confession to a third person, D. being absent, would be receivable. Milligan & Welch- man's Case, before Eiker, Recorder, N. T. Gen'l Sessions, 6 G. H. Reo. 69, '77, 78. Quere. See ante, note 155, anipoat in this note. It will abundantly be seen by the page and note last referred to, that a previous undue influ- ence may be so completely countervailed by a subsequent influence, as to render an after confes- sion admissible. See also ante, note 156. Again ; an infant under fourteen had been wrought upon by assurances of favor : "If you will confess, you will probably get clear," to confess a murder, in consequence of which his then con- fession and the examination before the magistrate were refused as evidence. But, after lying in jail five months, and being told by a stranger, and by a magistrate whom be knew, that he most 554 Admissibility of Confessions, [CH. viil. It is not a valid objection to a confession before a magistrate, that tbe prosecutor, who was present, first suggested to the prisoner that he had better speak out, if it appear that the inagistrate or his clerk immediately checked the prosecutor, desiring the prisoner not to regard him, but say what was prdper.(l) If a confession has been received in evidence, and it afterwards appears that it had been made under such an inducement as would render it inad- missible, the judge will strike the evidence of the confession from his notes.(2) Property found In consequence of confession. Though a confession may have been obtained by means of undue inducements, yet if, in consequence of the infortnatioh obtained from the prisoner, any fact relative to the offenc6 is brought to light, such as the discovery of the property stolen, it is competent to give in evidence the fact that the property has been discovered conformably with the prisoner's information. The statement as to his knowledge of the place where the property is to be found, being confirmed by the fact of the finding, is thus proved to be true, and not to have been fabricated in consequence of any ■inducement. It is competent, therefore, to inquire, whether the prisoner stated that the property would be found by searching a particular place, and to prove that it was found there.(3) TJpoa this, the jury would have not expect to escape, but must expect death, he made a full and circumstantial confession, re- peating it to various persons. Held admissible in evidence against him. And the court deny ■what is said in Starlc. Ev. pt. 4, p. 49 : " Where a confession has once been induced by such means, all subsequent admissions of the same or the like facts must be rejected, for they may ■have resulted from the same influence," to b6 law. the court adopt this rule: "Although an original confession may have been obtained by improper means, subsequent confessions of the same, or of like facts, may be admitted, if the court believe, from the length of time intervening, from proper ■warning of the consequences of confession, or from other circumstances, that the delusive hopes or fears under the influence of which the original confession was obtained, were entirely dispelled." State v. GuiliJ, 5 Halst. 163, 179 to 181. See ante, note 156. Before reading the prisoner's confession to a coroner, it appeared he had been visited by B., who was a clergyman and magistrate. Yet held that the prosecution need not call B., though the .prisoner might, before reading the confession, to prove that some inducenient was held out. On his being called by the prisoner, it appeared that B. told the prisoner that if he was not the person who struck the fatal blow, and would tell all he knew, he (B.) would use his endeavors and influence to prevent anything happening to him ; and that if he, the prisoner, did not make a diaolosure, some one else ■would probably do so. After this, B. wrote to the secretary of state, who returned an answer that mercy could not be extended to the prisoner, which B. communi- cated to the prisoner. After this, the prisoner sent for the coroner, and wished to make a state- ment. The coroner told him if he did so, it would be used as evidence against him. The prisoner made the confession. Held, that it was admissible as evidence against him, for all hopes of the prisoner must have ceased, when he made the confession. Rex v. Clewes, 4 Carr. & Paynei 221. And see Gilham's Case, Oarr. Supp. 61. (1) Edwards's Case, East. Term, 1802, MS. (2) R. V. Garner, i2 C. & K. 920. (3) On this subject see R. v. Warwickshall, 1 Lea. C. 0. 263 ; R. v. Butcher, Id. 265, n. ; R. V. Mosey, Id. ; R. v. Lookart, Id. 38i3 ; R. v. Grant, and R. v. Hodge, 2 East P. C. 668 ; R. v. SEC. IX.] Facts discovered in Consequence. 555 to consider whether the prisoner, who knew of the concealment of the property, had not himself concealed it or was privy to the cOncealrnent. In the case of The King agt.' Gould, (1) on a trial for burglary, the statement of the prisoner that he had himself disposed of property which Thurtell, Joy, Conf. 84. It seems formerly to have been thought, that no part of the confession could be given in evidence, but only the actual discovery of the property. See E. v. Harvey, 2 East P. 0. 658. Note 158. — Though some have thought otherwise, the latter cases are uniform to the point that a circumstance tending to show guilt may be proved, although it was brought to light by a declaration inadmissible, per se, as having been obtained by improper influence. Holt's N. -P. Hep. 498, note ; Charity Jackson's Case, 1 C. H. Rec. 28 ; Tucker's Case, 5 Id. 164; 2 Curw. Sawk. 595, cited and approved in State v. Aa;ron, 1 South. 235. Conceded by Emmet, a/rg. in Minigan & 'Welchman's Case, 6 C. H. Rec. 69, "78. And held in The State v. Motley, 1 Rich. S. ■C. 327 ; The State v. Taigneur, 6 Rich. 391. (1) 9 C. & P. 364. Note 159. — Though, as we saw in the last note, the fact or circumstance discovered in conse- quence of a disclosure oTitained by improper influence, be admissible as an independent fact, disconnected with the disclosure, yet there are very respectable authorities which deny that the disclosure itself may be shown in connection with it, or be in any way coupled with it or ex- plained by it. 2 Curw. Hawk. 595, cited and approved in State v. Aaron, 1 South. 235 ; Charity Jackson's Case, 1 C. H. Rec. 28 ; MUligan & Welchman's Case, 6 0. H. Rec. 69, 11, '78, sem.i; State v. "Roberts, 1 Dev. 259. Yet there is a strong current of authority running with the text, tbat both the disclosure and the fact or circumstance connected with it, and going to its corrobora, tion, shall also be received in evidence, and they go to the jury with their joint force. This was so held where a boy, being threatened, admitted that he stole the prosecutor's bearskin and con- cealed it in the oven, where it was found. Stage's Case, 5 C. H. Rec. 1'77, 1'78, before Colden, ^ayor. And similar ground was taken by the same learned judge, charging the jury in Tucker^s •Case (5 Id. 164, 166). What may be considered corroborating circumstances, see amte, note 155, cases of State v. Guild, and State v. Aaron, in connection with the foregoing cases cited in this note and those which now follow. On trial for murder, it appeared that two men met the pris- oner and he produced some money of the deceased. They then charged him with the crime, and beat him because he denied it. They tied him and ordered him to produce the deceased's money. He then led them to a, swamp and showed the residue ; acknowledged the nimfder and the manner of it ; viz : striking on the left side with a club, as the deceased rode along the road ; said he dragged the body out of the road, and left the club lying by it ; covered the body ■with brush where the old road formerly ran, about ten or twelve yards from the present road. Some time afterwards, about four mUes distant, he pointed out a log, not far from the road, as containing the deceased's saddle-bags. All these circumstances were proved to be true, and the 'deoea.sed's clothes were found with the bags. It was objected that the prisoner's confession, being extorted, could not be received ; that the circumstances showed his knowledge, but his confession alone showed his commission of the crime. But the court said a confession, though extorted, which relates a number of circumstances (established by other prooQ, with which the prisoner could not well be acquainted but as a perpetrator of the crime, is admissible, and may go to the jury. State v. Moore, 1 Hayw. 482. In The State v. Jenkins (2 Tyl. 311), it was said "a confession is evidence though extorted, but the jury are to determine its weight ; and if extorted or obtained by promises, it should be disregarded, unless supported by corroborating facts. "Where a fact has been ascertained, e. g. the finding of i, weapon, m consequence df 'a prisoner's confession improperly obtained, as by encouragement to hope for a pardon, y&t sudh fact may be shown ; and also that it was ascertained in consequence of such confession, thottgh without such ascertainment, the confession would have been inadmissible. Commonwealth v. Znapp, 9 Pick. Rep. 496, 511. It is hardly necessary to observe, that though the confession be obtairied by influehc6 and 556 ■ AdmissiMlity of Confessions, [CH. VIII. had been in the house, and concealed it in a place named by him, was held to be admissible in evidence, although other parts of his statement (being considered questionable) were not brought forward. The whole of what he said respecting the concealment of the property was admitted. But the judge in such a case would direct the jury — and so, it is understood, did direct in that case — that his statement must not be taken as proof that he himself had concealed the property, but merely as evidence that he knew of, or was privy to, the concealment— ^from which, together with the rest of the evidence, they would consider whether it was probable that he con- cealed it himself Where inducements have been held out, which would render a con- fession inadmissible, and the prisoner, under" such inducements, has delivered property to the prosecutor, there may be a question, how far proof may be given of what the prisoner has said on the delivery, in answer to questions put to him, or to a demand made. Words used by him confessing guilt are not admissible as proof of his guilt : but proof of what he said, on delivering the property, would be admissible for the pur- pose of showing that he delivered it as the stolen property. In the case of The King agt. Grifiin,(l) a prisoner was charged with stealing a guinea and two promissory notes : after inducements to confess, it was held, that the prosecutor might prove, not only that the prisoner brought him a guinea and a note, but that he also gave them up, as the guinea and one of the notes that had been stolen from him. In the case of The King agt. Jones,(2) when the prosecutor asked the prisoner for the money which the prisoner had taken out of his pack, and at the same time held out induce- ments to confess, whereupon the prisoner produced a sum of ruoney, stating that it was all he had left of it, it was held that this evidence ought not to have been received. The distinction between these cases seems to be, that, in the former, the admission went only to this point — that the property had been stolen ; but in the latter there was an implied admission by the prisoner that the property had been stolen by himself. If a prisoner's statement (obtained by threat or promise), of his having concealed property, is not admissible against him as proof of the fact of having himself concealed the property, though the property is found so concealed ; still less is it admissible against other persons to implicate them in the guilt of the transaction. Thus, in the case of The King agt. Jenkins,(3) where a prisoner was induced by a promise from a prosecutor to confess his guilt, and after that confession he carried the officer to a therefore inadmissible, yet, being accompanied with the possession of the stolen goods, such pos- gession must be accounted for by the prisoner in the usual way. Stage's Case, 5 C. H. Keo. Ill 118, .before Golden, Mayor. (1) E. & B. Or. Ca. 151. (2) B. & E. Cr. Oa. 152. (3) E. & E. Or. Ca. 492. SEC. XI.] Inducement to Confess. 557 particular house, as the house where he had disposed of the property, and pointed out the person to whom he had delivered it ; the person denied knowing anything about it, and the property was never found ; it was held, that not only the confession, but the fact of the prisoner's- carrying the oflScer to the house in question, were inadmissible in evidence. Nature of inducement. With regard to the nature of the inducement, which will have the effect of excluding a confession made under its influence, it must contain a threat of some disadvantage, or a promise of some advantage, to the party charged. Thus, such expressions as the following have been held to suggest a sufficient inducement : " If you do not tell who your partner was, I will commit you to prison ;"(1) " Unless you give me a more satisfactory ac- count I will, take you before a magistrate; "(2) or, "If you will tell me where my goods are, I will be favorable to you ;"(3) " I only want my money, and if you give me that, you may go to the devil ;"(4) "You had better tell all you know. "(5) And the same effect has been given even to the following expressions, probably under the notion that they were cal- culated to excite undue alarm or hope, in the mind of the party charged : " It is of no use to deny it, for there are the men and the boy who will swear they saw you do it ;"(6) " What you say, I shall take down, and it will be used for you, or against you at your trial ;"(7) " You must be very careful in making any statement to me, or any body else, that may tend to injure you, but anything you can say in your defence, we shall be ready to hear, or send to assist you ;"(8) " You had better not add a lie to the crime of theft."(9) If the words used are ambiguous, but might be considered by the party charged, as a threat or promise, it seems the confession will not be admis- sible; thus, where a prisoner was told that he ought to tell whatever was the truth, but he must be very careful, as he was sure to be committed ; and the prisoner thereupon made a statement, Littledale, J., would not admit it in evidence.(lO) (1) R. V. Parratt, 4 C. & P. 570. And see E. v. Upohuroh, 1 Moo. C. 0. 465. (2) R. V. Thompson, 1 Lea. C. C. 291. And see R. v. Richards, 5 C. & P. 318 ; S. 0., nom. E. V. Griffiths, 2 Russ., Cr. & M., by Greaves, 831, 838 ; R. v. Hearn, Car. & M. 109. (3) R. V. Cass, 1 Lea. C. C. 293, n. ■(4) R. T. Jones, R. & R. 152. (5) R. y. Kingston, 4 C. & P. 387. For ftirtber instances, see R. v. Partridge, 7 C. i; P. 551 ; E. V. Thomas, G,C. & P. 353; R. v. Walkley, 6 C. 4; P. 175. (6) R. V. Mills, 6 C. & P. 146. (7) R. V. Drew, 8 C. & P. 140. (8) R. T. Morton, 2 Mo. & R. 514. (9) R. V. Shepherd, 7 C. & P. 579. See as to this case, Joy Oonf. 8, and 2 Russ., Cr. & K, by Greaves, 829. And see R. v. Enoch, 5 0. & P. 539 ; R. v. Taylor, 8 0. * P. 733. (10) R. V. Williams, 2 Russ., Or. & M., by Greavefi, 832. 558 Admissibility of Confessions, [CH. TIJL- In a late case,(l) where a married woman was apprehended on a charge of felony, and her husband, in the presence of the constable, told her, if she knew anything about it to tell the truth ; Pollock, G. B., rejected the evi- dence of the statement which she had made in consequence ; but it appears, his Lordship was partly induced to do so, upon the ground that her statement tended to exonerate the husband, and might be considered as made under his coercion. But it, seems that a mere exhortation to tell the truth, not conveyed in such a manner as to induce the party charged to suppose that it will be better or worse for him to admit his guilt, or under such circumstances as to imply coercion, will not have the effect of excluding a subsequent con- fession. Thus upon a charge of forgery, where a magistrate had told the prisoner to be sure to tell the truth, on which he made a statement, the statement was received in evidence."(2) " It can hardly be said," observed Littledale, J., " that telling a man to be sure to tell the truth, is advising him to confess what he is not really guilty of." An inducement held out to an accused party, with reference to the offence with which he is charged, will not exclude a confession of another offence, of which he was not suspected at the time the inducement was held out,(3) unless the two offences formed part of the same transaction. (4) The inducement held out to the prisoner to confess must be of a tem- poral nature, and have some reference to the charge. Thus, a confession drawn from the prisoner by a clergyman, or other person, by means of spiritual exhortation, is not on that account inadmisslble.(5) A promise by a constable to a prisoner, that if he would confess, he should see his wife, has been held not to render inadmissible a confession made in consequence of such promise ; no hope of favor being held out as to the charge upon which the prisoner was in custody .(6) In one case, (7) where a prisoner in custody had offered to tell the officer all about the matter with which he was charged, if he would give him a glass of gin,, and having obtained the gin made a confession, Best, J., re- (1) R. V. Laugher, 2 C. & K. 225. (2) R. V. Court, 7 C. & P. 486. See further 'Wright's Case, 1 Lew. R. 48 ; R. v. Holmes, 1 C. * K. 248. The Commonwealth v. Morey, 1 Gray (Mass.) 461 ; Carroll v. The State, 23 Ala. 28 ; Regiua T. Sleeman, 22 Eng. Law & Eq. 606; 12 Id. 583, 690. (3) R. V. Warner, 2 Rusa., Cr. & M., by Greaves, 845. (4) R. V. Hearn, Car, & M. 109. (6) Gilham's Case, Ry. & M. Cr. C. 186 ; "Wild's Case, Id. 452. See R. v. Radford, cit. Id. 186 ; 2 Russ., Cr. & M., by Greaves, 852, n. ; R. v. Nutt, 2 Id. 832 ; R. v. Hewett, Car. & M. 536. See also 5 Jur. 4t3, 495. Regina v. Sleeman, sv/pra. (6) R. V. Lloyd, 6 C. & P. 393. In R. v. Green (6 Id. 655), the prisoner's statement was re- ceived after his saying, that " if his handcuffs were taken off, he would tell." (f) R. V. Sexton, Bum J., D'Oy. & Wma. 1086. SEC. XI.] Inducement to Cmf^s. 559 fused to receive it. But the authority of this case does, not appear to rest on any principle. The circumstance that some deception has been practiced, in order to obtain a prisoner's confession, will not render it inadmissible in evidence : as where a person promised a prisoner, that what he had to say should go no farther ;(1) or even took an oath to that eflfect.(2) Where a prisoner asked the turnkey, if he would put a letter in the post, and upon his prom- ising that he would do so, gave him the letter ; it was detained by the turnkey, and given in evidence as a confession.(3) In another case, arti- fice was used to induce a prisoner to suppose that some of his accomplices were in custody, under which mistaken supposition he made a, confession, and it was admitted in evidence.(4) In another, where a constable, in order to extract a confession, assumed the prisoner's guilt, asking her how she came to poison her uncle, a confession made in answer was admitted.(5) , In these cases, there was no reason to suppose (which is the main point to be considered), that the inducement held out was calculated to produce an untrue confession, or lead the prisoner to suppose that it would be better for him to admit himself guilty of an offence wHch he had not in fact committed. A confession by a prisoner to a constable in whose custody he is, the prisoner being drunk at the time, is not on that account inadmissible.(6) As to the weight or effect of such evidence, that is a matter upon which the judge will observe. A confession, obtained without threat or promise, has been received, notwithstanding it was elicited by questions put by a, stranger(7) or a con- stable.(8) But the practice of putting questions by a constable is repro- bated by most of the judges ; and in a case where it appeared that the (1) E. V. Thomas, Y C. & P. 345. (2) R. V. Shaw, 6 C. & P. 372. (3) R. V. Derrington, 2 C. & P. 418. (4) Burley'B Case, 1818, MS. (5)' By Littledale, J., "Warwick Ass., MS. Carroll t. The State, supra. (6) R. V. Spilsbuiy, 7 C. & P. 187. The facta of the case, as reported, do not warrant the. marginal note, which is as follows; " Semble, if a constable, give him (the prisoner) liquor to make him drunk, in the hope of his saying something, that will not render the statement inad- missible, but it will be matter of observation for the judge in his summing up." It ig not to be inferred from the case, that a confession — so immorally, not to say, criminally extorted — would be received. See R. v. Sexton, supra, p. 658. (7) R. V. Wild, R. 4 M. C. C. R. 452. And see R. v. Shaw, 6 C, & P. 372 ; where, the.ques- tions had been put by a fellow prisoner. (8) R. V. Thornton, R. & M. C. C. R. 27. The prisoner wap a boy, fourteen years old, and the confession was made after he had been without food for nearly a whole day. The constable repeatedly told him, that there was no doubt of his being guilty, and repeatedly asked him who was concerned with him. See ala9 R. v. Kerr, 8 C. i P. 176 ; R. v. Gibney, Jebb C. C. 15 ; R. V. Hughes, Id. 39. 560 Admissibility of Confessions, [CH. vili. constable was in the habit of interrogating prisoners in his custody, Patteson, J., threatened to cause him to be dismissed from his office.(l) It was ruled in one case, by Holroyd, J., that the fact of the person being in unlawful custody when he made the confession would render it unavailing.(2) This, however, seems questionable. If the prisoner were to believe the apprehension unlawful, that would make him careful not to disclose anything ' against himself: if he should suppose it lawful, that also would make him careful not to make his situation worse, nor in any respect to prejudice himself.(3) Confessions before magistrate. The previous cases exemplify the general principles upon which con- fessions, made by persons charged with offences, are admissible in evidence ; and they have reference generally to, confessions when made extra-judicially — that is, when the party is not before a magistrate. Confessions that are made before a magistrate will be treated of in another portion of this work :(4) but it may be proper to remark, in this place, that the statute 11 & 12 Vict., c. 42, requires that the committing magistrate shall, in all cases, caution the accused before he calls upon him to say anything in answer to the charge. Questions frequently arise as to the admissibility of remarks or state- ments which are made by the prisoner when before the magistrate, while the evidence is being taken, and which are not committed to writing. The consideration of this subject will be resumed in another part of this work ; but it may be stated here, as a general rule, that such remarks or statements are admissible, when there is no reason to suppose that they have been induced by a promise or threat. Statement by person under charge, examined on oath. The examination of a prisoner before a magistrate, if taken upon oath and put into writing, is not admissible against him on his trial.(5) This rule applies to the case where the prisoner was before the magistrate, (1) Hill's Case, Liverpool Spring Ass. 1838, cit. Rose Cr. Ev. 48. See also R. v. Kerr, 8 C. * P. l'!6. In like manner, the examination of a prisoner before a magistrate, consisting of answers to questions put by the magistrate, have been received. R. v. Ellis, R. & M. 432; R. v. Jones, 7 C. (t P. 239 ; R. v. Rees, Id. 568 ; R. v. Bartlett, Id. 832. See R. v. Wilson, Holt, 597, contra ; which, together with a case decided by Holroyd, J., were referred to in R. v. Ellis. See 11 & 12 Vict. c. 42, § 18, post. (2) Ackroyd's Case, 1 Lew.C. C. 49. (3) See Thornton's Case, 1 Lew. Cr. Ca. 49 ; Ry. & Moo. C. C. 27. (4) Vol. II, Chap. 1, Of Examinations. In the state of New York, the statute, as above cited, requires that at the commencement of the examination, the prisoner shall be informed by the magistrate, that he is at liberty to refuse tp answer any question that may be put to him. 2 R. S. 794 {3d ed.) (B) R. V. Smith, 1 Stark. R. 242; R. v. Rivers, 7 C. & P. 177; R. v. Lewis, 6 C. & P. 162; R. V. Pikesloy, 9 C. & P. 125. SEC. xl] Examination upon Oath. 561 under the criminal charge on which he is afterwards tried : his examina- tion in such a case, taken on oath, is not to be received against him in support of the charge on which he was so examined. As an examination it is irregular ; for the modern statutes, which regulate the proceedings of magistrates on criminal charges brought before them,(l) make a distinction between the examination of a prisoner, and the informations of those who make the charge — ^the informations (but not the examination of the pris- oner) being especially required to be on oath. Since the statement upon oath cannot be received as a judicial proceeding or formal examination — is it admissible as a confession ? There are objections to it also in that form ; the oath imposed on the prisoner, especially while in custody, is likely to operate as a constraint, or as a kind of compulsion ; the state- ment, therefore, cannot be considered as completely free and voluntary. And the objection would appear to apply with greater force in cases where an ignorant witness has been examined upon oath, without a dis- tinct previous warning that he was not bound to answer questions which had a tendency to criminate bimself.(2) It has been held that a statement in the heading of the examination, that the prisoner was sworn, is conclu- sive, and that proof of his not having been sworn is inadmissible.(3) The principle of these decisions has been somewhat extended in some cases, where it has been held that a statement made upon oath by a party, who has been examined as a witness, with reference to the offence for which he has himself been afterwards tried, is not receivable against him. Thus, in the case of The King ^gt. Lewis, (4) it appeared that the prisoner, among other persons, was summoned before a committing magis- trate upon an investigation in a matter of felony, but no person was specifically charged with the offence ; the prisoner was sworn and made a statement ; the other persons also were examined, and made depositions ; at the conclusion of the examination, the prisoner was committed for trial on the depositions of the others. This statement was held to be not re- ceivable against the prisoner. When she was summoned to appear, sus- picion attached to her ; and the case bears a strong resemblance to that of an individual examined on oath under a charge. The judge said he did not think the examination perfectly voluntary. In the case of The King agt. Davis,(5) one of several persons, when before the committing magistrate, was examined on oath as a witness (1) 1 Geo. IT, c. 64, § 2 ; 11 & 12 Tiot. o. 42, §§ 11, 18, post, Vol. II. The old statutes which formerly regulated their proceedings were to the same eifeot. 1&2P. 4;M. c. 13; 2&3 P. & M. 0. 10. (2) See Vol II, Chap. 9, Sect. 2, Of the Frivilege of Witnesses in refusing to answa: (3) So held by Park, J., in B. v. Rivers, T C. & P. 177. See on this case, post, Vol. II. And see R. V. Wheeley, 8 0. & P. 250 ; R. v. Pikesley, 9 0. & P. 124. (4) 6 C. & P. 162. In R. V. Walker (cited by Gurney, B., Id.), an affidavit by a prisoner, made in a suit iu Doctors' Commons, was read against him, (5) 6 0. & P. 177. Vol. I. 36 562 Admissibility of Confessions, ' [CH. VIII. against the bthers upon a charge of felony, and, after examination, was charged as a prisoner and committed for trial, the judge held that what he said as a witness before the magistrate could not be used against him upon the criminal charge. It does not appear from the report that this individ- ual was taken as a prisoner before the magistrate ; but there were circum- stances sufficient to raise a suspicion of guilt, and sufficient also to show that the statement was not perfectly voluntary. So the examination of a party upon oath, taken before a coroner, on an inquest upon the body of a deceased person, has been, held to be inad- missible on the trial of the same party for the murder of the deceased.(l) In a late case,(2) where a man and his wife were tried for poisoning their child, it appeared that a coroner's inquest had been held upon the body of another child of theirs, and that upon the inquest the mother had been examined upon oath, no suspicion attaching to her at that time, and that she had signed her deposition, and that afterwards she was brought before the coroner, and charged with poisoning both the children, and she was told by the coroner that she might make any statement she liked to the jury, and that what she said would be taken down in writing. Her deposition was then read over to her, and she said she had a further state- ment to make, which she made, and it was written down and read over to her, but she refused to sign it. Brskine, J., received both the deposition and the subsequent statement, reserving the point for the consideration of the judges ; but as the evidence was only received as against the woman, and was expressly so left to the jury, and she was acquitted, their lord- ships thought it unnecessary to consider whether it had been properly received or not. (1) Anon., 4 C. & p. 255, n. 5, hj Park, J. ; R. v. Wheeley, 8 C. & P. 250, by Alderson, B. ; R. V. Owen and others, 9 C. & P. 238, by Gurney, B. ; the examination had been received by Williams, J., in a previous trial, against the same prisoner, for a rape upon the deceased, and the point was reserved for the consideration of the judges ; but the prisoners were acquitted. See 9 0. & P. 83. In B. V. Clewes (2 Buss., Cr. & M., by Greaves, 860, n. to), it appears that the grand jury asked Littledale, J., whether the examination of a prisoner, who was examined on oath before the coroner as a witness,- could be admitted as evidence against the same person, when subsequently indicted for the murder of the person on whose body the inquest was held ; and the judge answered, " Whatever any prisoner says, at any time, against himself, is evidence, and, therefore, such a statement is adiiissible." Upon the Anonymous Case (4 C. & P. 255, n.) being mentioned to his Lordship, he seemed to entertain doubts upon the point, but directed the grand jury to receive the evidence, and leave the point for discussion upon the trial. The point does not appear to have been afterwards raised. See 4 0. & P. 221. (2) B. V. Sandys, Car. & M. 345. Where thejjorij/ accused is sworn before the coroner, his testimony is inadmissible the same flu if given before any other magistrate ; but if he appears voluntarily, and gives testimony before any accusation has been made against him, his statement is admissible in evidence against him on the trial of an indeotment for the crime. The People v. HendrickSOn, 1 Parker, 0. R. 406 ; Case of Boughton, 1 Iredell (N. C), 96 ; The People v. Thayers, 1 Parker 0. R. 595 ; 1 Smith N. Y State R. 384. SKC. XI.] Inducement to Confess. 568 Statement by person, not under charge or suspicion, on oath. The principle of the decisions, however, clearly does not apply to a statement made by the prisoner, in an examination upon oath before a magistrate, when he was not in custody, but examined against another person on a distinct charge, provided, of course, there has been no induce- ment given to confess, and no promise of favor or of a reward for infor- mation ; a statement so made by one in his capacity of witness, who was perfectly free to refuse answering any questions that had a tendency to expose him to a criminal charge, seems to be clearly admissible. And it may be laid down generally, that a statement upon oath by a person, not being a prisoner, and when no suspicion attached to him, the statement not being compulsory, nor made in consequence of any promise of favor, is admissible in evidence against him on a criminal charge.(l) Thus, where a prisoner had been examined upon oath respecting a distinct charge against another person, Parke, B., received the evidence of the exami- nation.(2) Where a prisoner, before the committing magistrate, was sworn by mis- take (being supposed to be a witness), but his deposition was afterwards destroyed, and he was cautioned, a subsequent statement which he made was received.(8) It has been ruled also, that an examination before a committee of the House of Commons was evidence in the trial of a misdemeanor ;(4) though it was objected, that the person, against whom the admission was used, had been compelled to appear before the committee, and would have been punishable, as for a contempt of the House, on refusal to answer the ques- tion. But on the other hand, if a witness has been obliged to answer upon oath questions tending to criminate himself, after claiming the pro- tection of the judge,(6) what he says must be considered to have been ob- tained by compulsion, and not be given in evidence against him.(6) In a prosecution for forgery, a deposition by the prisoner, taken on oath before commissioners of bankrupt, has been adjudged to be admissible in evidence against him ;(7) and sworn answers in a suit in chancery have been ad- mitted in evidence against the defendants in that suit, who were prosecu- ted by the plaintiff on a charge of conspiracy.(8) In one case it was heldj that the balance sheet of a bankrupt, given on oath under his commissioii, (1) E. V. Tubby, 6 C. & P. 530, referred to in R. v. lewis, 6 C. & P. 161. See alao R. v. Walker, cit. 0. & P. 162. (2) R. V. Haworth, 4 0. & P. 254. (3) R. V. Webb, 4 G. & P. 564. (4) R. V. Merceron, 2 Stark. R. 366. (6) See post, Vol. n. (6) R. V. Garbett, 2 C. & K. 4T4, by a majority of the judges. (V) R. V. Wheater. 2 Moo. 0. C. 45 ; S. C, 2 Lew. 0. C. 157. (8) E. V. Goldshede, 1 C. & Kir. 65T. See alao B. v. Highfifeld, eit. 2 E«as., Or. & M. by Greayes, 859. 564 Admissibility of Confessions, [oh. Vlil. was not admissible agq,inst him upon a criminal charge for concealing his effects.(l) In prosecutions for perjury, the statements of the party on oath are necessarily used against him. When a prisoner is on his trial for one felony, a confession relating to a distinct and separate felony will not be receivable.(2) Confessions not evidence against others. With respect to the prisoner's liability to be affected by the confessions of others, a marked distinction exists between the branch of law now under consideration, and that which has been considered in treating of admissions. In former times, it was usual to admit the confessions of prisoners, even of such as had afterwards been executed, as evidence against others, and this at a period when torture was not unfrequently applied in oider to ob- tain confessions ; as, for example, upon the trials of Sir N". Throgmorton, the Earl of Essex, and Sir W. Ealeigh, and upon the trials for the Gun- powder Plot.(3) One of the earliest reported instances of the change of practice occurs in the resolution of the j udges in Tong's Case, (4) that the con- fession of one is only evidence against himself, and cannot be used against any other parties, whom he may have confessed to have been engaged with him in the commission of the offence. Even when the confession is made before a magistrate, in the presence of another prisoner, it will not be evidence against the latter.(5) Thus, the confession of a prisoner charged with larceny, made before a magistrate, in the presence of the alleged receiver, containing statements implicating the receiver as well as the principal himself, is inadmissible against the receiver.(6) In a recent case, (7) upon an indictment against A. for stealing, and B. for receiving, where A. had pleaded guilty, Pat- (1) R. V. Britton, 1 M. & R. 29"?, by Patteson, J., and Alderson, B. (2) R. V. Butler, 2 C. & K. 221. But on a trial of a principal, in the second degree, the confession of the principal in the first degree may be shown in connection with the record of conviction. Studstill v. The State of Georgia, 1 Geo. 2. (3) See also Abingdon's Case, 2 How. St. Tr. 16 ; Sir M. Poster's Bisoourse, 234 ; where the practice is justly stigmatized. Prisoners were told, that the trial par gens de lour condition, meant confessions of accomplices. In Sir "W. Raleigh's Case, Sir E. Coke says, that the law presumes a man will not accuse himself for the purpose of accusing another. With regard to torture see notes on Fortescue, de laudibus legem Anglice ; Jardine On the Use of Torture in England. (4) Kel. 18, res. 5, temp. Car. II ; G How. St. Tr. 221. And see Hevey's Case, Lea. C. C. 232. (5) R. V. Appleby, 3 Stark. R. 33. And see Child v. Grace, 2 C. & P. 193 ; Helen v. Andrews, M. AM. 13 '7, supra. See, also, Hunter v. Commonwealth, 1 Gratt. 641 ; Frost v. Commonwealth, 9 B. Mon. 362. Otherwise as to the declarations and' acts of one acting in concert with prisoner in a homicide. Malone v. State of Georgia, 8 Geo. 408. (6) Turner's Case, 1 Ry. & M. C. 0. R. 34t. C?) R. v. Swinnerton, Car. & M. 593. SEC. XI.J Not against others. 565 teson, J., refused to receive a statement -whicli lie had made before the magistrate in the presence of B. His Lordship said : " "When before a magistrate, a prisoner is called upon to answer the depositions taken on oath ; but he is not called upon to make any answer to the statement of another prisoner." In one case where the principal and receiver were indicted together, and the principal pleaded guilty. Wood, B., refused to allow this plea to establish the fact of the stealing against the receiver.(l) But in another case upon an indictment against B. alone, for receiving property alleged to have been stolen by A., the indictment also stating that A. had been convicted thereof, Bosanquet, J., held that the record of the conviction of A. was evidence against B., although it appeared thereby that A. had pleaded guilty to the charge.(2) His Lordship said that whatever is evidence against the principal is prima facie evidence of the principal felony as against the accessory ; and if the principal is convicted on his own confession, that is prima fade evidence of his guilt as against the accessory, but not conclusive. In this case, it is to be observed, the indictment contained an averment that the principal had been convicted, so that the record of the conviction would be evidence to support that averment, if it was a material one. Upon trials for treasonable and other conspiracies, questions have arisen respecting the admissibility of statements made by co-conspirators. These have been adverted to in treating of the distinction between original and hearsay evidence. Such statements are receivable, when they accompany, or when they are in the nature of acts for which all parties concerned in the conspiracy are responsible ; but they are not receivable when they are in the nature of narratives, descriptions, or confessions.(3) CoDfession in case of treason. The statute 7 Wm. Ill, c. 3, § 2, enacts, that no person shall be indicted, tried, or attainted of high treason or misprision of high treason, " but upon (1) Anon., oit. in Turner's Case, 1 By. & M. C. C. K 348. "We have seen that where two persons are indicted together for a felony, one of them cannot be a witness for the other, though tried separately; and a confession is a species of testimony. People V. WUliams, 19 "Wend. Sll. As to the credit due to the testimony of an accomplice, see People V. Davis, 21 "Wend. 308 ; -People v. Costello, 1 Denio, 83 ; People v. Whipple, 1 Cowen, 107 ; Hunter v. Commonwealth, 7 Gratt. 641. (2) R. V. Blick, 4 C.-& P. 377. Studstill V. Georgia, 7 Geo. 2. (3) Hardy's Trial, 24 How. St. Tr. 452, 476, where ThelwaU's letter was considered to he a narrative merely. Malone V. Georgia, 8 Geo. 408; Glory v. The State, 8 Bng. (13 Ark.) 236 ; showing that the declar- ations of a conspirator may be shown against a co-conspirator, though not made in his presence. Cowles V. Coo, 21 Conn. 220. If made after the commission of the offence, they are not admissi- ble (The State v. Dean, IB Ired. 63) ; or if made in reference to a former transaction (Kidder v. Lovell, 14 Penn. State R. 214. See, also. The State v. Simons, 4 Strobh. 266 ; and Williamson V. Commonwealth, 4 Gratt. 547. 566 AdmmiMity- of Gonf6ssions, [CH. vili. tke oaths of two lawM witnesses, eitlier botli to the same overt act, or one of them to one, and another of them to- another overt act of the same treason, unless he shall willingly, and without violence, in open court^ confess the same." Sir Michael Foster expresses an opinion,(l) that the legislature intended by this section to require two witnesses to support a conviction, in all cases, except where the prisoner confessed the treason upon his arraignment in open court ; and that to warrant a conviction there must be proof of the overt acts upon oath, not merely proof of the confession of the overt acts : as the former statutes of treason(2) contained a similar enactment to that of the statute of Wm. Ill, but with the omis- sion of the words, "in open court." "But," he adds,(3) " perhaps it may now be too late to controvert the authority of the opinion in 1716 (in Francia's Oase),(4) warranted as it hath been by later precedents." All the judges, on a conference preparatory to that case, held, that a confession; of the overt acts, if proved by two witnesses, is suf&cient evidence to war- rant a conviction. The same construction of the statute had been previ- ously adopted in Grregg's Cage, (5) by six judges against two; and was afterwards acted upon in Berwick's Case,(6) by Willes, C. J., and Abney, J., against the opinion of Foster, J. But in all these cases, the confession which was given in evidence had been made upon an examination before a magistrate, or person having authority to take it ; and Sir Michael Fos- ter, yielding his opinion to that of the other judges, as to the effect of a confession made under such circumstances, still insists ' that the rule in Francia's Case should not be extended further than that case warrants, and ought not to be applied to confessions made in the presence of persons having no authority.(7) In all cases of high treason, when the prisoner's confession is offered in evidence as confirmatory of the testimony of the witnesses, it is clearly (1) See Foat. Diao. 240, 241, 243 ; "WilUs's Case, Id. 241 ; S. C, 15 How. St. Tr. 622 ; Smith's Caae, Fost. 242. (2) 1 Edw. VI, i;. 12, and 5 Edw. YI, u. 11. (3) Post. Disc. 243. (4) See Fost. Eep. 11 ; Mr. J. Burnett's, MSS., pit. 1 Bast P. 0. 133; ; Kel. 1(8. (5) 1 Bast P. 0. 134; S. C, 14 How. St, Tr. 1375,. (6), A. p. 1U6 ; Fost. B,ep. 10 ; S. C, 18 How. Stj. Tr. 310. (7) Fo?t. Disc. 243. See also 4 Bl. Com. 356. Note 160. — " No person shall be convicted of treason, uulaas on tb,6 testimony of two witnessM to the same overt act, or on confession in open court." Const. XT'. S. art, 3, § 3. The statute is to the same effect. 2 Laws U. S. 92. "No person shall be convicted upon any indictment for treason, but by the testimony of two lawful witnesses to the same overt act, or one witness to one overt act, and another witness to a different overt act, of the same treason. But if two or mora distinct treasons, of divers kinds, be aUegad in any indictment, one witness to prove one treason ftnd another witness to prove a, different; treason, shall not be deemed two witpesses to the same, reason, within the provisi,ons.ofthig,seotion." 1 15, 2 R. S.N. Y. 735. §16; "In trials for treason, no evidence shall be given of any overt apt that, is ijot expressly laid' in the, indictment ; and no conviction shaU be had upon any in,dAotment for the said, offence, unless one or more overt acta bs expressly alleged therein." CH. IX.] Of the Bute requiring the Best Evidence. 567 admissible, thougli proved by a single ■witness.(l) And witb regard to all facts merely collateral, which do not conduce to the proof of the overt acts, it may be laid down as a general rule, that whatever was evidence of them at common law is still good evidence under the statute of 'William.(2) Such collateral facts may therefore be proved by a confession on the testi- mony of a single witness. If the overt act of high treason, alleged in the indictment, is the assassination of the queen, or any direct attempt against her life or her person, it is plain, from the provision of the statute 5 & 6 Vict. c. 51(3) (which enacts that in such cases the prisoner shall be tried according to the same order of trial and upon the like evidence as if he stood charged with murder), that a confession proved by a single witness will be sufficient, to convict the prisoner. ' And the overt acts themselves may be proved by a single witness. In these cases, the rule of the common law is restored. CHAPTER IX, OF THE EXCLUSION OF SECOlfDAKY EVIDENCE, AND OF THE RULE WHICH REQUIRES THE BEST EVIDENCE TO BE GIVEN. The law excludes such evidence of facts as, from the nature of the thing, supposes still better evidence behind in the party's possession or power. The rule has been sometimes expressed in these terms — that the beat evidence must always be given. (4) Other writers have stated the rule to be — that the law requires the highest evidence of which the nature of the thing is capable.(5) The precise import of the rule cannot be clearly comprehended without reference to its application in various instances. (1) B. T. "Willis, 15 How. St. Tr. 622, 624, 643 ; Fost. Diae. 241. And see R. v. Orossfleld, 26 How. St. Tr. 56, 51. Note 161. — Respuhlioa v. Roberta, 1 DaUas, 39, 40, and Bespublioa v. M'Os^rty, 2 Dallasi 86, S. P. (2) Post. Disc. 240, 242. (3) See also 39 & 40 Geo. Ill, o. 93. ' Note 162.— But per M'Kean, 0. J., in Bespublioa v. M'Carty (2 Dall. 88): "Most of the au- thorities seem to lean against the admission of the party's confession in the presence of two wit- nesses, as sufficient for conviction, unless made at the time of committing the criminal act, or before a magistrate duly authorized." As to what constitutes the crime of treason, see U. States V. Pryor, 3 Wash. 0. 0. 234 ; Same v. Hoxie, 1 Paine, 265 ; Same v. Vigol, 2 Dall. 346 ; Same v. MitcheU, Id. 348 ; Ex parte BoEman, 4 Cranch, tS ; People y. Lynch, 11 John. R. 549 ; U. States V. Hanway, 2 Wallace, jr., 139. (4) B. N. P. 293. (5) Bac. Ab, tit. ETidenee L 568 Of the Rule requiring [CH. IX. The principle of the rule under consideration is founded on the pre- sumption that there is something in the better evidence which is withheldr which would make against the party resorting to inferior evidence. Although, in some instances, this presumption may not be veiy strong, yet the general effect of the rule is to prevent fraud, and to induce parties to bring before a jury the kind of evidence which is least calculated to perplex or mislead them.(l) (1) See GrUb. Ev. 13 ; B. N, P. 293. See also what is said by Lord Tenterden, C. J., in Vin- cent V. Cole, M. & M. 258, ag to tlie imperfection of parol testimony concerning written instruments. Note 163. — Legal writers seem entirely agreed that the foundation of the rule is as stated in the text. "Where a party proposes to introduce secondary evidence, under circumstances whicb clearly presuppose that higher evidence is within his power, it is very natural to presiam?e that he does so from some secret and sinister motive, coBScious, perhaps, that should the higher evi- dence be adduced, it would give a complexion to the case by no means favoraWe, if not directly adverse to his interest. 2 Ev. Poth. 14"?, 148; 3 Starkie's Ev. 389, 390; Swift's Ev. 157; Macnally's Ev. 234 ; 1 Chitty's Or. Law, 566 ; Strother v. Barr, 5 Bing. 399, per Best, C. J. And the reason of the rule limits the extent of its application ; consequently, it does not operate where the law itself obviates the presumption of fraud, which would otherwise arise. Hence, in general, to prove that a person is a public ofBcer, it is sufficient to show that he acted as such ; for then, in the absence of evidence to the contrary, it is to be presumed that he was duly and legally appointed. 3 Starkie's E v. 392, 393. So, where a document is of a public nature, a copy is sometimes admitted, for the production of the original_ is dispensed with, on account of the Inconvenience resulting from the frequent removal of such papers, and therefore the absence of the original affords no presumption of fraud. 3 Starkie's Ev. 393. And in a variety of cases where the opposite party has admitted the facts sought to be established, or by his conduct pre- cluded himself from denying them, primary evidence is dispensed with. Indeed, the whole doc- trine as to secondary evidence of written instruments, when applied to the common instance of the best evidence being proved to be unattainable, rests upon much the same principle ; all pre- sumption of fraud is there, of course, repelled, and the rule, after first disarming the parties of the means of imposition, suffers itself to be relaxed as circumstances in justice shall require, by the admission of the next best evidence. Per Haywood, J., Ingram v. Hall, 1 Hayw. Rep. 193, 206. See, also, 9 Petersd. Abr. 151, note ; per Thompson, J., Milnor v. Tillotson, "I Peters, 99, 101 ; United States v. Reyburn, 6 Id. 352. • The secondary evidence, however, must in all cases be in itself competent ; for the rule is never BO far relaxed as to allow evidence to be given intrinsically illegal, as hearsay for instance, merely because a party happens to be so unfortunately situated, that it is the best of which his case is susceptible. 2 Bv. Poth. 147 ; 3 Chitty's Bl. 368, note ; Pentland v. Somers, 2 Serg. & Rawle, 23. And see Johnson v. Chase, 1 TyL Rep. 449 ; Bonnet's Lessee v. Devebaugh, 3 Binn. 115. And on the other hand, the rule is not to be extended to such a rigorous extreme as to debar a party from justice because he originally neglected to furnish himself with the highest possible assurance of the disputed facts ; for then two witnesses would be better than one, a hundred better than two, and so on progressively. A writing would be better than a parol contract, a deed better than either, and a record better than all. Per Haywood, J., Ingram v. Hall, 1 Hayw. Rep. 193, 206. See, also, 2 Ev. Poth. 148. Nor does the rule operate in any case to exclude evidence, merely because it is not all nor tho most satisfactory which might be adduced, when the evidence offered and that which is withheld Is all of the same general quality or grade (3 Starkie's Ev. 391 ; Liebman v. Pooley, 1 Starkie's Eep. 161 ; Macnally's Ev. 342 ; 9 Petersd. Abr. 155, note ; 1 Chitty's Grim Law. 56T) ; but iu such case, it in general goes no farther than to forbid that evidence which is, in its nature, merely circumstantial, shall be received, when direct and conclusive evidence may be had. Common- wealth V. James, 1 Pick. 3'75 ; 1 Big. Dig. 322, § 11. This is forcibly illustrated by Governor v. Roberts (2 Hawks' Rep. 26). There, the secretary of state was called as a witness, to produce CH. IX.J The Best Evidence. The present rule is satisfied by tlie production of. tlie best aWdnahh evidence. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence of a nature merely sub- stitutionary shall be received when the primary evidence is producible. certain papers belonging to the office of the comptroller. It appeared that the oomptroiler was absent on a visit, and before his departure, he had deposited the keys of the office with the secre- tary, requesting him to attend to any applications at the office during the absence of the former ; the comptroller had not been summoned to attend court, and the secretary testified that he attended as the agent, or on behalf of the comptroller, with the papers. Under these circum- stances, it was held that, though the testimony of the comptroller would be more satisfactory than that of the secretary, yet both being oral, and both, therefore, of the same grade, either was competent to be submitted to the jury. " If," as is well observed by Henderson, J., who deliv- ered the opinion of the court in the above case, " the rule was that the most full and satisfactory evidence should be produced, it would follow that where it appeared there were others present, they should be also produced ; or where a person, from his situation, had a better view of the transaction, one who had a less favorable position should not be received ; or where it appeared that another could give a more detailed account of the affair, one who could not give so full a one should be excluded, although there may be no doubt as to his knowledge of the facts to which he deposes." Particular instances of the application of the rule under consideration, to cases where a writing of any kind exists, evidentiary of the facts sought to be established, will be found in a subsequent part of this work, and the requisite proof dispensing with the production of the best evidence, the doctrine of notice to produce papers under the control of the opposite party, the kind of evidence admissible, after a foundation has thus been laid for introducing that which is inferior in its character, together with various other matters connected with this head, wiU there be fully treated of and the illustrations given. * It should be observed here, however, that wherever written evidence exists of the facts sought to be proved by parol, whether the existence of such evidence appear on the direct or cross examination of the witness introduced, makes no difference. Its disclosure, at any period of the trial, brings its importance into view as the best evidence. Hence, though a party may conduct his examination so as to prove the contents of a writing, and keep its existence out of sight, if it turn out that it is the highest evidence, and should have been produced by him ; whenever its existence appears, the inferior evidence given will be excluded altogether. Boone v. Dyke's Legatees, 3 Monroe, 529, 531 ; Eex v. The Inhabitants of Padstow, 4 Bam. & Adol. 208, S. P. So, though the writing be not the foundation of the action, but comes in question collaterally, the highest evidence of its execution must be produced. Roberts v. Tennell, 3 Monroe, 24'7, 250. And the original in such cases, as in others, must be shown or its non-production legally excused. Cope V. Arberry, 2 J. J. Marsh. 296. The following decisions may, perhaps, be most appropriately introduced by way of concluding this note. Upon an information for passing a counterfeit sixteen penny piece, it was held that, before any evidence of its want of genuineness could be received, the piece itself must be pro- duced. State V. Osborn, 1 Root's Rep. 152. So, in ordinary oases of a writing charged to be a forgery. State v. Blodget, Id. 534. But where the information was for counterfeiting only, and the prosecutor had never been able to get hold of the money, he was allowed to prove the defendant's confession respecting his having made counterfeit pieces of the denomination specified in the information, without producing them, State v. Phelps, 2 Root's Rep. 87. In a case before Lord Kenyon, at Nisi Prius, a witness was asked whether the plaintiff's bushel measure had not been tried and found to correspond with the public Belford bushel. But his Lordship was of opinion that the question could not be asked, inasmuch as " the best evidence the case would admit of was a production of both measures in court, and a comparison of them before the jury." Chenie v. Watson, Peake's Addit. Cas. 123. Sed guere. 570 Of the Rule requiring [CH. ix. By substitutionary evidence is meant sucli evidence as implies the exist- ence of primary or more original information. If a party offer a copy of a deed or will where he ought to produce the original, this raises a presumption that there is something in the original deed or will which would make against the party; and therefore the copy, in such case, is not evidence. And the rule being general in its application, it would not be sufficient to rebut this presumption in any particular case, so as to let in the substitutionary evidence. Thus, it would be of no avail to prove that the copy tendered in evidence was in every respect quite correct, it would still be inadmissible while it was in the power of the party to produce the original. But if he prove the original deed or will to be in the hands of the adverse party, who refuses to produce it after receiving a regular notice for that purpose — or if he prove that the original has been lost or destroyed without his default — no such presumption can reasonably be made, and a copy will be admitted, because such a copy is the best evidence that can be adduced.(l) Evidence of this nature is usually termed secondary evidence, it not being original or primary. Where there is no substitution of evidence, but only a selection of weaker for stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed : the rule of law does not require the strongest possible assurance of a fact,(2) If a deed, for (1) Gflb. Ev. 13 ; B. N. P. 293 ; Garnons v. Swift, 1 Taunt. 501 ; Henry v. Leigh, 3 Camp. 499. See post, Tol. II, 0/ Seconda/ry Evidence. (2) Note 164. — Questions respecting tlie admissibility of evidence are entirely different from those which respect its sufficiency and effect. Columbian Ins. Co. v. Lawrence, 2 Peters' Rep- 26, 44, per Marshall, C. J. And in general, if the distuiction of written and unwritten, or direct and circumstantial, does not exist between the evidence offered and what is withheld, that which is offered will be admitted, though less satisfactory than some other which the party might adduce. No rule of law requires all the evidence, or the strongest evidence of the matter in dis- pute ; but only that is excluded, which, fVom the nature of the case, supposes evidence superior in qvMity ot -grade behind, in the power of the party. See per Daggett, J., Barnura v. Ba,ruum) 9 Conn. Rep. 242, 248, 249, and Ainsworth v. Greenlee, 1 Hawks' Rep. 190 ; also the remarks of Henderson, J., Governor v. Roberts, 2 Hawks' Rep. 26, and the authorities cited in connection with that case, note 163. See likewise 1 Big. Dig. 322, § 11. Accordingly, where a bill pqr- ported to bo accepted by S. R., Market Place, Birmingh£>m, it was held that the result of inquiries made at Birmingham by the prosecutor, who was not acquainted with the place, was evidence for the jury to prove the non-existence of the party who^e name was used, though neither the best nor the usual evidence in such cases. " A banker from Birmingham, or an overseer," it seems, would have been the most satisfactory witness. Rex y. King, 5 Carr. & Payne, 123. SeOi also. Rex v. Backler, Id. 118. But even after such testimony has been introduced, the same principle which dictates the rule requiring the best evidence may frequently be advantageously applied in a3sig^ing to it; its due importance in the scale of credibility. For, as has been justly observed by Mr. Evans, " when weaker and less satisfactory testimony is tendered in support of a fact, the nature of which will admit of elucidation from proofs of a more direct and explicit character, the same caution which rejects evidence of an inferior degree, when higher evidence might be produced, will awaken suspicion; and it will reasonably be supposed that a more per- fect exposition of the subject would have laid open deficiencies and objections which a more CH. IX.] The Best Evidence. 671 example, or a will, is attested by several subscribiag witnesses, the execution may be proved by one of them : or, if none of those witnesses can be produced, proof of the signature of one witness will be suiScient ; for the proof is, as far as it goes, complete, and not inferior in its kind to any that can be produced: nor can it be inferred merely from the absence, of further proof of the same kind, that such additional proof would be inconsistent with that already produced.(l) Even the testimony of a de- ceased subscribing witness, given on a former trial, if otherwise admissible, may supersede the necessity of calling a survivor.(2) Upon the same principle, for the purpose of proving handwriting, it is not necessary to call the supposed writer himself.(3) So, where a notice obscure and uncertain representation was intended to conceal. But there is still an important distinction to be attended to : the rules for the admission of evidence are absolute and imperative and will not admit of any relaxation from considerations of inoonvenience and expense ; whereaai in forming a judgment Upon the adequacy of testimony, in particular cases, circumstancea which remove the cause of suspicion may also be admitted to obviate the eflfect." 2 Ev. Poth. 149. And so they may be, where the rule operates in its utmost rigor. See ante, note 163. But con.- Btderationa of mere incomiermnce and expense would probably have no influence in laying a foun- dation for secondary evidence, and this is doubtless what the learned writer intends. ■We have already remarked {cmte, note 163), that the rule which forbids the suhstitutipa of iniferior for primary evidence, is never relaxed so fai as to authorize the introduction of mere hearsay, or other evidence intrinsically incompetent. "Within that prmciple, letters or private papers written by a third person are excluded, because their contents are inferior to the testimony of the individual by whom they were written. Vasse v. Mifflin, 4 Wash. 0. C. Rep. 519. See, also, post, of the text, and the notes. In Cotton v. James, however (Mood. & Malk. 213), letters bearing post-marks before an act of bankruptcy, and found in the alleged bankrupt's possession after it, containing statements material to the act of bankruptey, were held admissible against tha bankrupt, without calling the writer, as evidence to show that he received intimation of partiou- ■ lar facts, though not to prove their truth. The testimony of a witness, taken down in writing- by a magistrate, cannot be used as evidence in chief of the facts stated by him ; it may, however, be used to contradict and impeach him. State v. M'Leod, 1 Hawks' Rep, 344. And where, in an action for malicious prosecution, the plaintiff introduced the justice, before whom the eorapjaiat charged as malicious was made, who being sworn and examined in chiell was cross-examined by the defendant, and the Common Pleas allowed him to testify on such orosSrexaminatioBi, aa to what the witnesses sworn to on the complaint before him, though objected to, upon writ of ewoi brought, the Supreme Court reversed the judgment upon that ground ; holding, that, to substatu/te the relation of the justice, under such circumstances, for the testimony of the witnesses, was a violation of the plainest rules of evidence. Richards v. !Foulke, 3 Hawm. Rep. 62. (1) See Ansty v. Downing, 2 Stra. 1253 ; B. N. P. 264. A different Tule prevails in equity with regard to wills. See Gresl. Ev. 120. (2) Wright y. Doe d. Tatham, 1 A. & E. 3. Under a recent English statute the attestmg witness need not be called, where, no attestatio!i is requisite ; the instrument may be proved in the same manner aa if' there were no attesting witness to it (lY- & 18 Vict. o. 125, enacted in 1854); it may be proved by the admission of the party executing it (HaH v. Phelps, 2 John. R. 451 ; Sloan v. Ehle, 16 Id. 201 ; Palmer t. Manning, 4 Denio, 131 ; Pentz v. Winterbottom, 5 Id. 51) ; or by proof of the signature of the attesting witness, and tha,t he is beyond the jurisdiction of the court. People v. Rowlandl 5 Barb. 449. (3) R. V. Hurley, 2 Mo. & R. 473. On a bank prosecution, it was not thought necessary to disprove the cashier's handwriting, by calling the cashier. Hughea's Case, 2 East P. C. 1003: ; M'Guire's Case, Id. ; Case of Bank Prosecutions, R. t R. 378. la an early case it was tiiougbt 572 Of the Rule requiring [CH. IX. had been given to produce a letter, ■written by a plaintiff to a defendant, it was held, that its contents might be proved by any person acquainted with them, although it was in the plaintiff's power to produce the clerk who wrote the letter.(l) Proof of negative, when not necessary. In prosecutions, where it is necessary to prove that the act with which the prisoner is charged was done without the consent or against the wUl of some other person (as upon indictments for unlawfully killing deer or taking fish), it is not in general indispensably necessary to call that person as a witness on the part of the prosepution, in order to prove the negative, namely, that he did not give his consent.(2) Some misapprehension as to the nature and extent of the mle has been necessary to disprove handwriting, by calling the party whose receipt had been altered. Smith's Case, 2 East P. 0. 1000. -»■ (1) Liebman v. Pooley, 1 Stark. R. 167. On an indictment for perjury, it is not necessary to call the clerk who wrote the jurat. B. v. Benson, 2 Camp. 508. See 2 Burr. 1189. N&TE 165. — In an action for a malicious prosecution in North Carolina, the plaintiff, to estab- lish his case, offered the proceedings before the magistrate, had in the prosecution charged as maUcious, and verified the same by witnesses who proved the magistrate's handwriting. The Supreme Court held this was correct ; for though the best evidence is required, yet the rule does not require the strongest possible assurance. " Whether a signature is proved by the person who made it, or by one acquainted with the handwriting, the hind of proof is exactly the same. They are both primary, since the knowledge of both is acquired by the same means ; although it may be that the evidence of the writer is in degree stronger than the other." Ainsworth v. Greenlee, 1 Hawks' Rep. 190. But in M'Kee v. Executors of Myers (Addison's Rep. 31), where the plaintiff sought .to prove an order drawn by the defendant's agent, and signed by such agent, with the defendant's name ; held, that the agent must be called, as the best evidence. Per Cwiam : " This is not the case of a note or order, subscribed by the maker or drawer ; in that case, if there be no subscribing witness, proof of handwriting is sufficient ; here the person who wrote the note and subscribed the name is uninterested, is the best witness, and ought to be here." This case, however, seems anomalous. The fact of the agency was made out; and where a person who is the acknowledged agent of another, makes a contract by letter or other writing, proof of the agent's handwriting, has, we believe, been very uniformly considered suffi- cient evidence of the contract without calling the agent. Daniel v. Hill, Norris' Peake, 40 ; Pairlie v. Hastings, 10 Vesey, jun., 126, S. P. (2) Allen's Case, 1 Mo. Cr. Oa. 154; B. v. Hazy, 2 C. & P. 458. And see R. v. Hurley, 2 Mo. & R. 413. At one tiijae it appears to have been thought necessary to caU the owner as a witness. R. v. Rogers, 2 Camp. 654. There are several classes of cases to be more fully noticed hereafter, in which the plaintiff is called upon to allege and prove a negative. Thus, in an action against a common carrier, the plaintiff alleges, among other things, the delivery of the goods to the carrier for transportation to the place named, amd that fhey have not been delivered there. Edwards on Bailments, 566. Or in an action for a penalty, given by statute, unless a general form of declaring is expressly authorized, the complaint must set forth the particular acts or omissions which constitute the cause of action. Cole V. Smith, 4 John. E. 193 ; Bigelow v. Johnson, 13 Id. 428 ; 16 Id. 5 ; The People v. Brooks, 4 Denio, 469. So where a statute pronounces certain, acts unlawful, such as traveling on the Sabbath, "unless in cases of charity or necessity, &c.," the plaintiff must in his complaint nega- tive the exceptions (First Baptist Church, &o., v. U. & S. R. R. Co., 6 Barb. 313 ; Street v. Smith, 1 B. & Ad. 94) ; and it is a general principle that the plaintiff must prove the allegations in his complaint. 1 Greenl. Ev. § TS. CH. ix.j The Best Evidence. 573 occasioned by the case of Williams v. The East India Company,(l) where the question was whether the defendants had put on board the plaintiff 's ship some articles of a combustible and dangerous kind, without giving due notice of their nature to the master of the ship, or .to any other person employed in its navigation. It appeared in evidence at the trial, that the goods were delivered by the officer of the defendants, with a written order to the plaintiff to receive them, in which order nothing was said as to their nature ; that they were received by the chief mate of the plaintiff's ship, who had since died ; and that no other person was present at the time of the delivery. It was further proved, by the captain of the ship and the second mate, that no communication had been made to either of them, nor, as far as they knew, to any other person on board. Upon this evidence, the plaintiff, who had to prove the negative, was nonsuited, on the ground that he had not given the best evidence of the want of notice, which it was in his power to produce, by calling, the company's officer, who delivered the articles on board. And the nonsuit was afterwards affirmed by the Court of King's Bench. " The best evidence," said Lord EUenborongh, 0. J., in delivering the opinion of the court, " should have been given, of which the nature of the case was capable. The best evi- dence was to have been had, by calling, in the first instance, upon the per- sons immediately and officially employed in the delivering and in the receiving of the goods on board, who appear in this case to have been the first mate on the one side, and the military conductor, the defendant's officer, on the other : and though one of these persons, the mate, was dead, that did not warrant the plaintiff in resorting to an inferior and secondary species of testimony (namely, the presumption and inference arising from a non-communication to the other persons on board), as long as the mili- tary conductor, the other living witness, immediately and primarily con- cerned in the transaction of shipping the goods on board, could be resorted to ; and no impossibility of resorting to this evidence, the proper and pri- mary evidence on the subject, is suggested to exist in this case." It is to be observed, that the evidence in this case, which was received, was not secondary in its nature, inasmuch as it would have been admissible, not- withstanding what was said to have been the primary evidence had been produced ; and it is difficult to consider upon what principle it could have been substituted for such primary evidence, in case of its failure in conse- quence of the death of witnesses. The case, therefore, appears to be one in which there was a failure of the proper measure of proof, and not a substitution ofsecondary for primary evidence.(2) (1) 3 East, 192. (2) On the subject of whatia the proper measure of proof in cases similar to that in the text, see Koster v. Reed (6 B. & 0. 19). The strength of proof required will depend materially on the facility afforded to the opposite party for explanation or contradiction. By lord Tenterden, 0. J., in E. T. Burdett, 4 B. & A. 162. See fUrther, on this- subject, post, On Presumptions. 574 Of the Ruh requiring the Best Evidence. [CH. IXi The rule relates to the quality of evidence, not gwmtity. That the rule in question relates only to the quality, and not to the quantity or strength of the evidence, is further illustrated by the cases, in which it has been held that the entries or hearsay statements of deceased persons are receivable in evidence, notwithstanding the same facts might be proved by living witnesses. Though all information must be traced to its source, if possible, yet, if there are several distinct sources of informa- NoTE 166. — Mr. Starkie considers WiUiams v. The East India Company, eited in the text, as an instance of mere failure in the measure of proof; he takes for granted that the testimony of the captain and second mate was at all events admissible, and from this endeavors to show, that the case is not one coming strictly within the principle which forbids the substitution of inferior for primary evidence. 3 Starkie's Ev. 396. It is true, the testimony was received at the trial without objection, as it seems from the report ; but the language of the court plainly imports that they regarded it as not only insufficient, but utterly incompetent. Lord EUenborough, who de- livered the opinion, commences that portion of it relating to this subject, with a distinct applica- tion of the rule requiring the best evidence ; after which it is remarked, that " the best evidence was to have been had by calling, in the first instance, upon the persons immediately and officially employed," &c. ; and throughout the whole, the testiinony of the captain and second mate is spoken of as " inferior and secondary," while that of the conductor is treated as the "proper and primary evidence." Indeed, we understand his Lordship as denying, in unequivocal terms, that the plaintiff had a right to resort to the testimony of the former, so long sa the impossibility of procuring that of the latter was not shown. No good reason is perceived, therefore, for taking this case out of the class in which our author -has placed it, as a strong illustration of the rule requiring the highest evidence ; for, although that rule does not usually operate by way of exclusion, where tho evidence offered and that which is withheld is all parol (see ante, note 163) ; yet there are instances of its apphcation to the more or less adequate representation of facts. 2 Ev. Poth. 149 ; Swift's Ev. 15*7. The testimony of the captaui and second mate, under the existing aspect of the case, was nothing more than presump- tive or ourcumstantial evidence ; and where that which is positive and direct in its character, is within the power of a party, the former is secondary (3 Starkie's Ev. 515 j 2 Ev. Poth. 340) ; and being so, its inadmissibility would seem to follow as an inevitable corollary. In Massachusetts, where, upon an indictment for having in possession a counterfeit bank note, it appeared that the note was passed to one P., who suffered it to remain out of his hands for a long tiine, during which it was lodged with u magistrate, who might have been produced as a witness ; held, that the testimony of P. and his wife, who swore positively to the note from cer- tain accidental marks upon it, was improperly received, unless they had made a private arti- ficial mark upon it; and also, that the testimony of the magistrate was indispensable, Upon the general principle requiring the bedt evidence. Commonwealth v. Kinnison, 4 Mass. Hep. 646. Upon an indictment, however, against a miller for stealing, where it appeared that P. sent barilla to the defendant's mill, and after it was ground, a mixture of three-fourths barillaj and one-fourth plaster of paris, was returned by the same truckman who took the barilla to the miU, it was held that the government need not produce the truckman to prove that it was not ■adulterated in the transportation, although there was merely circumstantial evidence of its hav- ing been done by the miller. Commonwealth v. James, 1 Pick. 375. But note, that the gist of the action was the stealing not the adulteration of the barilla; whereas, in "Williams v. The East India Company, the fact of notice not having been given, was the direct foundation of the prosecution. Ii) larceny of the wife's wearing apparel, she is not only a competent witness to identify them, but the most proper one. And it seems not necessary to produce the husband, to prove non- Consent to the taking in such case ; for, " it is threasonable to suppose, in the absence of proof, that the husband should sell his wife's clothes; and still more unreasonable that he should gvie them away." The People v. 'Williams, 3 Wheel. Grim. Cases, 18. CH. IX.] Writing U hefroiueed. 575 tion as to the same fact, it is not, in general, necessary to show that they have all been exhausted before' secondary evidence can be resorted to. Thus, an entry made by a deceased collector is proof of the fact of the money having been paid, without calling the persons who paid it to him.(l) One of the most ordinary occasions to which the present rule is applicable, relates to the substitution of oral for written evidence. The qualifications under which oral evidence may sometimes be received, not- withstanding the existence of written evidence, will be more particularly considered in the second part of this work ; in the present place, it is only material to inquire in what cases it is not allowable to substitute entirely the one for the other. First, then, oral evidence cannot be substituted for any instrument in writing (which is not merely the memorandum of some other fact), the existence of which instrument is disputed, and its production material to the issue between parties, or to the credit of the witnesses. One advan- tage, derived from the application of this rule, is, that the court acquires a knowledge of the whole contents of the instrument, which may have an effect very different from a statement of a part. " I have always," says Lord Tenterden, C. J., (2) " acted most strictly on the rule, that what is in writing shall only be proved by the writing itself My experience has taught me the extreme danger of relying on the recollection of witnesses, however honest, as to the contents of written instruments. They may be so easily mistaken, that I think the purposes of justice require the strict enforcement of the rule." But the same learned judge observed, in another case, (3) that much injustice is frequently dohe by a rigid adherence to the rule, where a party is turned round for want of a stamp, or put to the unnecessary expense of the penalty and stamping an instru- ment, which has nothing to do with the particular subject matter of the action. This rule, however, does not apply where the instrument in question is shown to be destroyed or lost, or where the party who relies upon it is otherwise incapacitated from producing it. It was decided in The Queen's Case,(4:) that it is not allowable, on cross-examination, in the statement of a question to a witness, to represent the contents, of a letter, and to ask the witness whether he wrote a letter to any person with such contents, or to the like effect ; because the counsel might thus put the court in possession of a part only of the contents of a (1) By Park, J., in Middleton v. Melton, 10 B. k G. 327, 328. The rule as to the proof of instrumenta by subscribing witnesses, some of whom are dead, is otherwise, in consequence of the intervention of another prhioiple. See Wright v. Doe d. Tatham, 1 A. & B. 3. (2) In Vincent v. Cole, M. & M. 258. See, also, by Best, 0. J., in Stretherv. Barr, 5 Bmg. 151. (3) Reid v. Batte, M. k M. 414. (4J 2 B. & B. 286. See, also, Crowley v. Page, 7 0. & P. 789. 576 Of the Rule requiring the Best Evidence. [CH. IX. written paper. And even if the witness acknowledges the letter to be in his handwriting, he cannot be questioned as to its contents, but the whole letter must be read in evidence. So, where the inquiry was as to the existence of allotments made by inclosure commissioners in another mode than in the execution of their award, it was considered that, if such allot- ments were made, they must be in writing, and therefore the minutes of the commissioners were the primary evidence of them, and 'no other evi- dence of such allotments could be given until a search had been made after the minutes.(l) Rule as to substituting oral evidence. Ora,! evidence cannot be substituted for any written conveyance or con- tract.(2) The written instrument in such cases may in some measure be regarded as the ultimate fact to be proved, especially where the question relates to the proof of deeds and negotiable securities ; and the principal object of committing contracts of every kind to writing is for preserving a memorial of them, more lasting and more authentic than oral testimony. Accordingly a plaintiff is not permitted to recover in an action for use and occupation, or in ejectment, where there is a written contract of tenancy, or upon any contract which is in writing, without producing it.(3) If it (1) Bendyshe v. Pearse, 1 B. & B. 460. (2) B. K P. 246. (3) Brewer v. Palmer, 3 Esp. 213, recognized iu Kamsbottom v. Tunbridge, 2 M. 4; S. 434; Fenn d. Thomas v. GriflBth, 6 Binn. 533; R. v. Castle Morton, 3 B. & A. 588. As to policies of insurance, see R. v. Gibson, R. & R. 138 ; R. v. Doran, 1 Esp. 127 ; R. v. Ellioombe, 1 Mo. & R. 260 ; S. C, 6 C. & P. 522. Note 167. — The case of Doe dem. Wood v. Morris, cited iu the text, simply decides that, in order to exclude parol evidence of a contract, it must appear that the, contract was reduced to writiBg : there, the landlord who brought ejectment, proved payment of rent by the defendant, and notice to quit; but on cross-examining his witness, it appeared that an agreement in writing, relative to the land in controversy, was produced on a former trial ; the witness, how- -ever, did not know the contents of it, and it was not shown that the agreement related to the existing tenancy between the plaintiff and the defendant. Upon a motion made to set aside the verdict, Lord Ellenborough, in giving judgment, makes use of these words: " How can we say that the plaintiff ought to have been nonsuited for the want of giving the best evidence of the tenancy, unless it appeared there was other and better evidence of it in an agreement iu writing between the landlord and his tenant, which the landlord kept back ? Enough ought, at least, to appear, to show that the paper not produced was better evidence of the terms of the tenancy than the evidence which was received." Where, iu support of a general count for use and occupation, the plaintiff offered to prove the acknowledgment of the defendant, that he had hired and occupied the premises during the period in question, agreeing to pay therefor a certain sum ; and it appeared that, during such period, there was an outstanding written agreement for a lease of the premises in the hands of the plain- tiff, VfUoh, through failure of the event on the happening of which it was to take effect, never became operative ; held, that in the absence- of evidence to show that such acknowledgment referred to the written agreement, the evidence offered was admissible. Buell v. Cook, 5 Conn. Rep. 206. But if the occupation had been founded in fact upon the agreement, though it was defective and authorized no such occupancy, it must have been produced as the best evidence. Id., per Hosmer, 0. J. And where the plaintiff brought his action to recover the value of certain Cfi. IX.] Writing to he produced. 577 comes OTjt upon cross-examination of the plaintiff's witnesses, that there is a written agreement, he must produce it ; but if he makes out a prima facie case, without showing that there was any written contract, the other fixtures, and it appeared that there was a written memorandum respecting the manner in which the value should be ascertained, signed by the plaintiff, but not by the defendant; held, that such writing need not be produced by the plaintiff. Wilson v. Bowie, 1 Carr. A Payne, 8. So in an action for work and labor, the plaintiff having proved the value of the work done and closed his case, one of the defendant's witnesses swore there was a memorandum in writing, containing an estimate at which the work was to be done ; and produced a copy, unstamped, in the plaintiff's handwriting, not signed by either party ; and held, upon the authority of Doe dem. Wood v. Morris (jiast, 5'78), that the plaintiff was not precluded from recovering, as it did not appear whether the original memorandum was in existence. Stevens v. Pinney, 2 Moore's Rep. 349, cited in the text from 8 Taunton, 328. But in another case, where the action was for work, a witness for the plaintiff, on cross-examination, stated that the work had commenced under a written contract ; but that certain items which the plaintiff relied on were not contained in it ; and held, that the plaintiff could not recover without producing the written agreement, though a particular item was proceeded on, after an admission by the defendant that it was an extra. Vincent v. Cole, 1 Mood. & Malk. 257. The plaintiff's counsel in this case proposed to Lord Tenterden, C. J., whd presided, that his Lordship should look into the agreement, which was in court unstamped, to see whether it comprehended the item sought to be recovered ; but this was refused, because of the great inconvenience of such a course. And in ejectment, a witness of the plaintiff was called to prove that the defendant succeeded one A. T., who occupied under the plaintiff, and through whom the defendant claimed. On his cross-examination, the witness stated he had drawn au agreement in writing between the plaintiff and A. T., relative to the premises in question, and that he had frequently heard the latter say he held under the plaintiff, but not that he held under that agreement. The court considered that the existence of a written lease having been shown by the plaintiff's own witness, he was bound to produce it as the best evidence, and so decided. Fenn dem. Thomas v. Griffith, 4 Moore & Payne, 299. See Doe v. Harvey, 8 Bing. 239, stated post. So, wherever there is a written lease between the parties, and the terms of it come in question in any way, the lease itself must be produced as the highest evidence. Thus, in Brewer v. Palmer (3 Esp. Rep. 213), Lord Eldon, in an action for use and occupation, nonsuited the plaintiff because of the non-production of the written lease. This, though a Nisi Prius ease, is a leading one, and was confirmed by the King's Bench in Ramsbottom v. Tunbridge (2 Maule & Selw. 434). Other authorities are to the same import. See Hodges v. Drakeford, 1 New Rep. 271. In Cot- teriE v. Hobby (4 Barn, k Cress. 465), the action was case for an injury to the plaintiff 'sl-ever- sionary interest ; H. was called as a witness, and testified that he was tenant to the plaintiff under a written agreement ; and held, that such agreement must be produced to prove the terms of holding. See Strother v. Barr; 5 Bing. 136. So, to prove a settlement of a pauper pursuant to 6 Geo. IV, c. 67, § 2, by the bona fide renting of a tenement for a year at £10 ; if the agree- ment between the landlord and the tenant was in writing, it must be produced. Rex v. The Inhabitants of Merthyr TidvU, 1 Bam. & Adol. 29 ; Rex v. The Inhabitants of Padstow, 4 Id. 208- See, also, Rex v. The Inhabitants of Castle Morton, 3 Bairn. & Aid. 588 ; sed contra, see Rex v. The Inhabitants of Holy Trinity, 7 Barn. & Cress. 611 ; S. C, 1 Mann. & Ryl. 444. And in trespass for mesne profits, where the plaintiff having proved a judgment in ejectment against P., offered to, prove by a son of P. that he put the defendant in possession ; it appearing, however, that he had done this under a written agreement; held inadmissible, and that the writing must be pro- duced, to show who was the defendant's landlord, and the terms upon which he occupied. Doe V. Harvey, 8 Bing. 239. See Penn dem. Thomas v. Gfriflfith, 4 Moore So Payne, 299, svpra. Whether a father had a deed written of certain negroes to his children, and, immediately after delivery of the negroes, executed the deed ; in trover, brought by such children for the negroes held, that they milst produce the deed as the best evidence. Foster v. Cherry, 2 Nott & M'CoW, 367. Vol. I. 37 578 Of the JRule requiring the Best Evidence. [CH. IX. party, if he relies on that written contract, will have to produce it;(l) otherwise the plaintiff might, on a mere assertion of the defendant, be non- suited for the non-production of a written instrument, which, if it had been produced, might turn out not to apply to the contract in question. It is not sufficient for nonsuiting the plaintiff that his witness states there is a written agreement relative to the land.(2) Nor is it sufficient, for nece'ssi- tating the plaintiff's production of a written agreement, that one of his witnesses has stated, on cross-examination, that he has heard from the plaintiff's attorney of there being such an agreement.(3) In like manner, if the case on the part of the plaintiff has been proved, and it does not appear that the contract was in writing, he is not to be nonsuited by the defendant's producing an unstamped written instrument purporting to contain the terms of the contract,(4) even although that the plaintiff has had notice to produce the instrument.(5) The question how far the admissions of a party to a suit will dispense with the production of written instruments, has been already fully dis- cussed.(6) Where the single fact of the occupation of land is in issue, such fact may be proved by payment of rent, (7) declarations of the tenant, or other parol evidence sufficient to establish it, notwithstanding it appears that the holding is under an agreement, in writing.(8) So where a tenant was to hold lands according to certain rules in writing under which a former tenant held, but the length of his term was agreed on orally, it was held, that it was not necessary to produce the rules, where the object was merely to show the expiration of the term.(9) But where the question is not merely as to the occupation of land, (10) but as to the person under whom (1) R. T. Padstow, 4 B. & Ad. 208 ; Fenn d. Thomas v. Griffith, 6 Bing. 533 ; Reed v. Deere, 7 B. & 0. 261, 266; Stevens y. Pinney, 8 Taunt. 327 ; R. v. Rawden, 8 B. & C. 708. The. terms and existence of a written oontraot cannot be proved by parol evidence, unless its non-production has been first accounted for or excused. Creed v. White, 11 Humph. 549; Smith V. Smith, 1 Sand. 206 ; Marshall v. Hany, 9 Gill, 251 ; Tarborough v. Hudson, 19 Ala. 653. If lost, or if recorded, and the record of it burnt, and the original destroyed, the contents may be proved by parol. Dowrey v. Logan, 12 B. Mon. 236 ; Bosworth v. Bryan, 14 Mis. 515 ; Wade V. Wade, 12 111. 89 ; De Lane v. Moore, 14 How. IT. S. 253. The entire contents must be proved. Sizer v. Burt, 4 Denio, 426. (2) Doe d. Wood v. Morris, 12 East, 237 ; Doe d. Shearwood v. Pearson, cit. Id. 238, and 5 Bing 150. (3) Watson v. King, 3 C. B. 608. (4) Fielder v. Ray, 6 Bing. 332. (5) Magnay v. Knight, 1 M. & G. 944. (6) Supra, Chap. 7, Sect. 12, Of Admissions hy Parties to tlie Suit. (7) See Doe d. Lord v. Cargo, 6 0. B. 90. (8) R. V. Holy Trinity, Hull, 7 B. & 0.^611, commented on in Strother v. Barr, 6 Bing. 136, 138. (9) Hey v. Moorhouse, 6 N. C. 52. (10) Doe V. Harvey, 8 Bing 241. In Strother v. Barr (5 Bing. 136), the Court of Common Pleas were divided upon the question, whether, in an action for iiyury to the reversion, it is competent CH. IX.] When Writing need not he produced. 570 it is held, or to whom the demise was made,(l) or what amount of rent was r.eserved,(2) or whether any rent was due,(3) if there be a lease or a written agreement, showing the fact, it must be produced. Collateral writing need not be produced. In like manner, where a written communication or agreement between parties is collateral to the question in issue, it need not be produced ; as where the writing is a mere proposal, or memorandum, which has not been acted upon ;(4) or where, during an employment under a written contract, a distinct and separate order is given by parol.(5) But if the work has been commenced under an agreement in writing, and the plain- tiff's claim is for extra work, and it does not clearly appear that such work was separate from that included in the agreement and done under a distinct order, the plaintiff will be compelled to produce the original agreement ; for it may be of importance with respect to the extra work, as furnishing some evidence of the rate at which such work should be paid for.(6) On the question whether a judge, in such a case, may examine an un- stamped agreement, in order to see whether it referred to items claimed independently of it, Lord Tenterden, C. J., has observed, such a practice would be attended with much inconvenience.(7) It has been held that written proposals made pending a negotiation, might be admitted, without a stamp, as forming a step in the evidence of the contract.(8) In action to recover document. Where the action is not brought upon an instrument for the non-per- formance of its terms, but in tort for its conversion or detention, its pro- duction is not necessary, and the plaintiff may give parol evidence to show to prove the occupier's holding by parol, when he holds under a written agreement. See Cot- terill V. Hobby, 4 B. & C. 465. (1) R. V. Rawden, 8 B. & 0. '708. (2) R. V. Merthyr TidvH, 1 B. & Ad. 29. (3) Augustien v. Challia, 1 Exoh. 279. (4) Doe d. Bingham v. Cartwright, 3 B. 4; A. 326 ; Dallsen v. Stark, 4 Esp. 163 ; Hawkins v. Warre, 3 B. & C. 690 ; Wilson v. Bowie, 1 C. & P. 8 ; Eamsbottom v. Tunbridge, 2 M. & S. 434 ; E. v. St. Martin's, Leicester, 2 A. & E. 210 ; R. v. Wrangle, Id. 614 ; Ingram v. Lea, 2 Camp. 521 ; Trewhitt v. Lambert, 10 A. & B. 4tO. So as to a written ofifer of compromise. Snodgraas v. Branch Bk. at Decatur, 25 Ala. 161. So a receipt, or a mere bill of parcels, receipted, for goods sold, need not be produced to prove delivery or a sale. Southwick v. Hayden, 1 Cowen, 334; Dunn v. Hewitt, 2 Denio, 631. (5) Reid v. Batte, M. & M. 413. (6) Vincent v. Cole, M. & M. 25'7 ; S. C, 3 C. & P. 481 ; Buxton V. Cornish, 12 M. & "W. 426. (7) In Vincent v. Cole, ut supra, overruling the dictum of Bayley, J., in R. v. Pendleton, 15 East, 449. See by Parke, B., in Buxton v. Cornish, 12 M. & W. 430. (8) Drant v. BrowH, 3 B. & C. 665 ; BetheU v. Blencowe, 3 M. & G. 119 ; Edgar v. Bliek, 1- Stark. R. 464. 580 Of the Rule requiring the Best Evidence, [CH. IX, its identity, without giving notice to the defendant to produce it,(l) or even though the defendant offers to produce it.(2) As was remarked hy Sir James Mansfield, 0. J.,(3) there is no distinction, as to this purpose, between written instruments and other articles, between trover for a prom- issory note, and trover for a wagon and horses. Rule as to substituting written eyidence. The instances which occur on the subject of this rule, most commonly relate to the reception of oral testimony ; but the principle of the rule applies equally to the substitution of secondary written testimony. Thus, on the trial of a person charged with having willfully, with intent to injure an insurance company, set fire to a house, which he had insured at the company's office, it was held not allowable to prove the insurance by the books of the company, without previous regular notice to the prisoner to produce the policy.(4) So, if it should be material for a plaintiff, in reply to the case of the de- fendant, to prove the contents of a registered deed, which is in the defend- ant's possession, the memorial of the deed would not be admissible for that purpose, unless there had been previously a notice given to the defendant to produce the original ;(5) and numerous other instances might be cited to the like effect. The rule has reference to the substitution of evidence, whether it be of the same or of inferior degree. Where it is necessary to show the contents of a manuscript, a printed paper purporting to be a copy of it, is not receivable without notice to produce the manuscript ;(6) but with regard to printed papers, all of them worked off at the same impression are originals, in the nature of duplicate originals ; and if one or more can be traced to the possession of a party, another impression will be evidence against him without notice to pro- duce. (7) Thus, when it is wanted to show that a party had notice of what (1) Bucher y. Jarret, 3 B. & P. 143 ; How y. Hall, 14 East, 2T4; Scott y. Jones, 4 Taunt. 865; Read y. Gamble, 10 A. & E. 597. See also Doyer y. Maestaer, 5 Esp. 92 ; Bayne v. Stone, 4 Esp. 13 ; Day is v. Reynolds, 1 Stark. R. 115 ; S. C, 4 Camp. 267. The action is notice, where the defendant is shown to be in possession. Bissel y. Drake, 19 John. R. 66 ; Hays y. Kiddle, 1 Sand. 248. See also Decker y. Mathews, 2 Kernan R. 313. (2) "Whitehead v. Scott, 1 Mo. & R. 3. (3) In JoUey y. Taylor, 1 Camp. 143. These cases oyerrule Cowan y. Abrahams, 1 Esp. 50. (4) R. y. Doran, 1 Esp. 127 ; R. y. Gilson, R. & R. 138 ; R. y. EUicombe, 1 Mo. & R. 260 ; S. C, 6 C. & P. 522. (6) Molton q. t. y. Harris, 2 Esp. 548. It would be admissible as secondary eyidence against the party by whom the deed was registered, and those claiming under him. "Wollaaton y. Hake- will, 3 M. & G. 297 ; Doe d. Loscombe v. Clifford, 2 C. & K. 448. See also Doe d. tJljele v. KU- ner, 2 C. & P. 289 ; Collins y. Maule, 8 C. & P. 502 | Jenkins y. Biddulph, Ry. & M. 239. (6) By Bayley, J., and Abbott, J., in R. v. Watson, 2 Stark. R. 129, 130, 131 ; S. C, 32 How. St. Tr. 82, 86. (7) Ibid. CH. IX.] Substitution of Written Evidence, 581 is contained in a particular newspaper, if it is proved that he had a copy of the paper, the contents may be shown by producing another paper.(l) In one case,(2) Lord Ellenborough, 0. J., ruled, that a duplicate taken from an autograph, at one impression, by means of a copying inachine, was not an original, but only a copy, though it was more likely to be accurate than one taken by successive imitations.(3) In such a case a few simile is produced, but it is still only a copy ; but there are some machines by which two or more impressions are taken off at the same time, and of which not any one can be said to be more an original than an- other ; in these cases it would seem that all the impressions are as much duplicate originals as the impressions from a printing press. Entries in judicial prooeedinga. Where the law requires an entry or memorandum of particular transac- tions to be made in a court of justice, the official entry or memorandum excludes all independent evidence of the transaction. Thus, parol evi- dence was held not admissible to prove the taking of oaths required by the Toleration Act, as the fact would be recorded in the court where the oaths were taken.(4') In like manner, parol evidence is not admissible of the day on which a cause came on to be tried, because it is matter of record, and ought to be proved as such.(5) The original appointment of a sur- veyor of highways, under the hands and seals of justices, (6) is the best evidence of such appointment ; and a minute-book kept by the justices' clerk is only secondary evidence.(7) Upon a question whether a partic- ular abbey was an inferior one or not, DugcbMs Monasticon was refused, because the original record was to be found in the Augmentation Office.(8) (1) By Lord BMenborough, 0. J., R. v. Watson, svpra. <2) Nodin t. Murray, 3 Camp. 228. (3) A copy taken in this manner, -worked by the -witness, who produces it, is admissible as secondary evidence, -without showing that it has been compared -with the original. Simpson v. Thoreton, 2 Mo. & E. 433. (4) R. V. Hube, Peake, 134. See Underhill v. Witts, as to the production of the -wardmote book in order to prove the election of a person as constable. (5) B. N. P. 243 ; Thomas T. Ansley, 6 Bsp. 80 ; E. v. Page, Id. 83; R. v. lies, Hardr. 118 ; E. v. Bro-wne, M. & M. 319 ; S. C, 3 0. & P. 572. As to the necessity of producing the -warrant, under -which a party has been apprehended, in order to show the fact of the apprehension, see E. V. Phillips, E. &, R. 369. In like manner, a record of a judgment of a competent court naim-alizing an alien, reciting the necessary facts, cannot be impeached by parol evidence. MoOarty v. Marsh and others, 1 Seldeni 263. * So a certificate of conviction made by a court of special sessions, and filed in the clerk's office, as prescribed by statute, is e-ndence of the facts stated in it. The People v. Powers, 2 Selden, 50 ; S. C, t Barb. 462. And a judgment upon an issue once litigated is conclusive upon the parties litigating it. White v. Coatsworth, 2 Selden, 131 ; Embury v. Conner, 3 Comst. 522 ; Doty V. Brown, 4 Id. 71 ; Douglass v. Wiokwire, 19 Cona. 489. (6) Pursuant to 13 Geo. II, o. 78. • (7) R. V. Pembridge, Car. & M. 157. (8) Salk. 281. 582 Of the Rule requiring the Best Evidence. [CH. IX. The document delivered out by the registrar of the Court of Chancery as the order of the court, is the original order, and it is not necessary to show that it has been compared with any book of the orders of the court.(l) It has been seen that the discharge of a defendant, by a court of quar- ter sessions, under an insolvent debtors' act, cannot be proved by parol evidence, nor by proof of an acknowledgment of the discharge by the plaintiff himself; for the discharge may have been irregular and void, or may have been mistaken by the plaintiff; a judicial act of this kind should be proved by calling the clerk of the peace, and giving in evidence the judgment or adjudication of the court for the debtor's discharge.(2) The rule under consideration may be further illustrated by cases relating to examinations of prisoners under charges of felony or misdemeanor, in which cases the magistrate is expressly enjoined to take the examination in writing. Parol evidence cannot be received of a prisoner's confession before the committing magistrate, unless it be first proved that the confes- sion was not taken in writing ; as it must be presumed until the contrary is shown, that it was so taken, in conformity with the statute, 11 & 12 (1) Ludlow (Mayor, &o.) v. Charlton, 9 C. & P. 242. (2) Scott V. Clare, 3 Camp. 236. Note 168. — Summerset v. Adamson, 1 Bing. IS, S. P. S&epost, of the text, and a note relat- ing to proof of an insolvent's discharge. The admission of a party out of court will not supply the place of a record. Thus, in troveri an admission by the plaintiff that the property in question was taken by virtue of an attachment, does not make out a justification for the defendant who justifies under the attachment, but he must produce the record. Jenner v. Joliffe, 6 John. Eep. 9 ; Salters v. Tobias, 3 Paige, 338. So In an action against a person for non-attendance as a witness, the subpoena must be produced, and his confession that he had been served with the subpoena, does not dispense with the neces- sity of its production. Hasbrouck v. Baker, 10 John. Rep. 249. And in Vermont, where, in an action upon a note, the defence was that the estate which the defendant represented, had been declared insolvent and the claim barred, as not having been presented to the commissioners i held, that the defendant's confession, that the claim had been exhibited to the commissioners, could not be received, as the commissioners' report to the judge of probate was the best evidence- Franklin V. Brownsou, 2 Tayl. 103. The case of the Welland Canal Company v. Hathaway (8 "Wend. 480), furnishes a strong iUustratiou of the doctrine on this subject. There, the defendant had entered into a contract with the company, and given a receipt to them, in the name by which they were known ; yet held, that when such company sued as a corporation, the admis- sions implied by these acts of the defendant, did not relieve them from proving that they were a corporation by the highest evidence. And Nelson, J., delivering the opinion of the court (Id. 486)i says : "It may be laid down, I think, as an undeniable proposition, that the admissions of a party are competent evidence against himself, only in cases where parol evidence would be admissible to establish the same facts, or, in other words, where there is not in the judgment of thd'law, higher and better evidence in existence to be produced. It would be a dangerous innovation upon the rules of evidence, to give any greater effect to confessions or admissions of a party, unless in open court, and the tendency would be to dispense with the production of the most solemn documentary evidence." See The Dutchess Cotton Manufactory v. Davis, 14 John. Rep. 238. But where the defendant has accepted an ofBoe under the supposed corporation, and ob- tained money in that capacity, he is estopped from denying its existence as such, and cannot re- quire proof of their charter. All Saints Church v. Lovett, 1 Hall's Rep. N. T. S. 0. 191. CH. IX.] Examination of Prisoners. 583 Vict. c. 42. But if it were clearly sliown that the prisoner's statement was not taken in writing, parol proof of what he said will be admissible.(l) If the written examination of a prisoner is given in evidence against him, it will not preclude the prosecutor from giving evidence of other statements made by him when not under examination ;(2) but whether it will be com- petent for the prosecutor to give evidence of other statements made by the prisoner during his examination, and relating to the same matter on which he was examined, but which statement has been omitted by the commit- ting magistrate, seems very doubtful ; this question will be more fully considered in a subsequent part of this work.(3) It has been held, that a witness, on cross examination, may admit not having mentioned a fact in an examination before commissioners of bankrupt, but if he chooses he may ask for the written examination, before he makes any admission.(4) (1) Decided by all the judges except one, in R. v. Hall, cited in E. v. Lambe, 1 Lea. 559 ; R. V. Feamshire, Id. 202; R. v. Jacobs, Id. 309. And see R. v. Huet, 2 Lea. 821. The proper evidence, that the prisoner's statement was not taken down in writing, is by calling the magis- trate's clerk, or the magistrate himself. R. v. Harris, Ry. & M. 338 ; R. v. Parker, 2 Ruas., C. & M., by Greaves, &1G, n.p; R. v. Phillips, Id. ; Phillips v. Wimburu, 4 0. & P. 273. See also E. V. Shillcock, 2 Rusa., 0. k M., ut mpra, n. a. (2) R. V. M'Carty, Macn. 45 ; R. v. Reason, 16 How. St. Tr. 35. (3) See on this aubjeot, Vol. II, Chap. 1, Sect. T, Of Depositions and Examinations. (4) Ridley v. Gyde, 1 Mo. & R. 197. As to dying declarations taken down in writing, see E. v. Gray, 7 0. & P. 231. Note 169. — ^And so of an examination of a prisoner taken before a magistrate, who ia required by law to reduce the same to writing ; the minutes of J;he magistrate must, in such oases, be pro- duced as the best evidence. See ante, note 151. If, in point of fact, however, any particular declaration of the prisoner was not reduced to writing, parol evidence may be given of it. The presumption ia, that it was taken down, and the onus to show it was not, is upon the party seeking to introduce the parol evidence. Note 151. And in Rowland v. Ashley (1 Ry. & Mood- 231), the same principle was applied to the examination of a party before commissioners of bank- rupt. It must appear, however, that what is sought to be added to the written examination, was material to the inquiry before the commissioners ; and very strong proof ought to be adduced, that the party said what the commissioners ao omitted. Id. It haa been held, however, that parol evidence of what a bankrupt said, on his last examination, cannot be received, though it should appear that no part was taken down in writing. Rex v. "Walters, 5 Carr. & Payne, 138. In Massachusetts, where it was proved that a, justice of the peace, before whom a clerk of a militia company was alleged to have been sworn, made no record of administering the oath, the testimony of witnesses present when the oath was administered, was held competent evidence. Baasett v. Marshall, 9 Mass. Eep. 312. The justice was first called, however, in this case, and testified that no record of the oath was made, and though he could not positively afiSrm that he ever administered the oath, he had some faint recollection of having done so. Id. Where an oath of office has been administered by a justice of the peace, his certificate in that state seems to be the " regular and legal evidence." Oolburn v. Ellis, 5 Mass. Rep. 427. See "Willes v. Battelle, 11 Id. 477. In New York, where a record of conviction was destroyed, parol evidence of it was held never- theless to be inadmissible, inasmuch as a transcript of the certificate, required by 1 R. L. 462, § 2 (K. & R.), to be sent to the Court of Exchequer, was the next best evidence. Hilts v. Col- vin, 14 John. Eep. 182. The non-attendance of a witness, duly subpoenaed, may be proved by parol ; there is not necessarily any record or memorandum made by any officer ol the court of such fact, nor is it the 584 Of the Buh requiring the Best Evidence. [CH. JX. A written examination of a prisoner is not admissible, as has been seen, if taken on oath, or even if purporting to be so takpn ;(1) nor can second- arj evidence be admitted ; the objection in each case is, that as the pris- oner was subjected to an oath, the statement is to be presumed not to have been voluntary.(2) Where the confession of a prisoner before a magistrate has been taken down in writing, but the written examination is informal — ^in not being signed, or from being signed before the evidence was conclnded, or from some other informality, so that it cannot be received — there is no longer any ground for excluding parol evidence ; for the parol evidence is in such cases adduced, not in substitution of the official document, but according to its effect at common law ; the prisoner's statement may, therefore, be proved by a witness who heard it made. And the informal examination may, like any other cotemporaneous document not of an official character, be used, if necessary, by the witness who wrote it, to refresh his memory duty of the derk to enter in his minutes the names of the -witnesses caHed by the crier, at the request of the party whose cause is about to be brought on, and therefixre there is no presumption of higher evidence. Cogswell v. Meech, 1 2 "Wend. 141 . In replevin against an officer for goods attached by him under a writ that had never been returned, on account of the suit having been settled by the parties ; held, that as the officer's omission to make a return, was excused by the act of the partieis in suppressing the suit, he might produce the writ, and then prove by parol that the goods were taken by virtue of it. Frost v. Shepleigh, 1 Greenl. 236. And if process issues without the intervention of the court, and no record is made of it, the fact of its having issued may be proved by parol. Beers y. Botsford, 3 Day's Rep. 1 59. Where an officer was authorized to issue a distress against the colleotor, and on return thereof unsatisfied, to issue an- other against the selectmen, and on like return of the latter, to issue one against the town ; held, that proof of a distress having issued against the town, was prima fade evidence that the others had been previously issued against the collector and the selectmen. Beers v. Botsford, supra. Evidence of what was proved on a former trial, for the purpose of showing tjie ground of re- covery, cannot be received without producing the record of such trial. Cooper v. "Watson, 10 Wend. 202. And in New York, where it is sought to connect a suit before a justice, dismissed by reason of a plea of title, with a suit subsequently prosecuted for the same cause in the Com- mon Pleas, the written proceedings before the justice must be produced ; the facts cannot be established by parol. Webb v. Alexander, 7 Wend. 281. In some cases, where a, record exists of the fact, it does not exclude parol evidence. Thus, parol evidence has been held admissible to prove the defendant an inn-keeper in an action against him as such, although his hcense is on record. Owings v. Wyant, 3 Harr. & M'Hen. 393- In Massachusetts, parol evidence of marriage is received, although officiating clergymen and magistrates are by statute required to keep a record of all marriages solemnized before them, and to return annually, to the clerk of the town where they reside, a, certificate of the names of all persons by them joined in marriage. Commonwealth v. Norcross, 9 Mass. Rep. 492. And the certificate of a clergyman, in such case, is inferior to his oath, and cannot be received. Ellis v. Ellis, 11 Mass. Rep. 91 See post, of the text, and tlie notes. And so, parol proof of the age of persons and the time of their death, is constantly received there, though a statute requires that births and deaths shall be recorded by the town clerks j and parents, householders, &o., are liable to a penalty for neglecting to give notice of bu'ths in their families. 4 Starkie's Ev. 1 044, note 1. (1) Supra, Chap. 7, Sect. 11, Of Confessions. (2) See R. v. Wheeley, 8 C. & P. 2B0; R. v. Rivers, 7 C. i P. 177. CH. IX.] Hearsay and /Secondary Evidence. 585 in giving the eyidence. This subject will be more particularly considered in the second part of this work, which treats of the admissibility and effect of examinations.(l) If upon the preliminary hearing of a charge, the magistrate's clerk takes a note of what the witnesses say, but the note is not signed either by the witness or the magistrate, and the substance of it is not returned with the depositions subsequently taken, parol evidence is admissible of what was said on the first occasion, as the clerk's note is not a deposition taken under the statutes.(2) In like manner, parol evidence is admissible of what is said by the witnesses, upon a charge before a magistrate in a mat- ter of summary jurisdiction, though the clerk may have taken notes of the evidence, as in such a case the magistrate is not required to take down the depositions in writing.(3) Hearsay and secondary evidence. The substitution of the hearsay of a person, in the place of his testi- mony, falls obviously within the principle of the rule under consideration. It has been before mentioned that where hearsay evidence is admissible, it will be necessary, in compliance with the rule which excludes secondary evidence, to show that the person whose hearsay is offered, is deceased. So depositions are not receivable, whilst the parties who made them ^re alive, or capable of being produced as witnesses.(4) The rule applies not only to the evidence produced in a cause, but also to writings which a witness may use to refresh his memory ; and, there- fore, where a coternporaneous entry has been made, it seems that a copy of such entry, made at a subsequent period, is not admissible for the purpose of refreshing a witness's memory .(5) (1) See ToL II, Chap. 1, Sect. 1, Of Deposiiima mid Examinations. <2) Jeans v. "Wheedon, 2 Mo. & R. 486. (3) Robinson t. Vaughton, 8 C. 4 P. 252. (4) See Tol. II, Chap. 1, Sect. 7, Of OeposiUons and Examinations. (5) By Patteson, J., in Burton v. Plummer, 2 A. & E. 344 ; Jones v. Stroud, 2 0. & P. 196 ; Doe V. Perkins, 3 T. R. 149 ; Home v. Mackenzie, 6 01. & P. 628. And see post, Vol II, Chap. 9, Sect. 1, Of the Examdnaiion of Witmesses. Note 170. — The English rule, though not explicitly stated in the text, is, that the witneis may refresh his memory by any book or paper, if he can afterward swear to the fact from recol- lection ; but if he cannot so swear, any farther than as finding it in the book or paper, it must then be produced. &ee post, of the text. Maugham v. Hubbard, 2 Mann. & Eyl. 6. The American oases are not uniform. They seem agreed, however, that a mere memorandum, or entry, is in no case evidence, per se, of the facts stated in it, but may in all cases be used by the person making it, when called on as a witness, to refresh his recollection. Thus, where an entry on a bank teller's book was offered; held, not evidence, per se, but proper in connection with the testimony of the teller. Courtney v. The Commonwealth, 5 Rand. Rep. 666. And a memorandum by a notary's clerk («. g. of a notice of non-payment) is of no further use, than to guide the recollection of the clerk as a witness. The Farmers' Bank of Lancaster v. Whitehall, 16 Serg. & Rawle, 90. In an action on a note bjr the indorsee against the indorser, the plaintiff offered a memorandum of the notaiy's clerk to prove search for the maker, and notice to the 586 Of the Rule requiring the best Uvidence. [CH. IX. It is an established rule, that where there are duplicate originals, all the originals must be accounted for, before secondary evidence can be given of any one of them.(l) Where a writing is not the fact itself to be proved, and not made an ap- propriate instrument of evidence by private compact, nor required by law, there is no reason why it should exclude oral or other evidence. It often happens that an oral communication or an act is accompanied by a state- ment in writing to the same effect, yet parol proof of the communication or act may be received, provided it be adduced, not to prove the contents of the writing and in substitution of it, but as independent evidence. Thus, the payment of money, or an admission to that effect, may be proved by oral evidence, though a written receipt was given.(2) Where indorser; the clerk having leftfor a foreign port some few days before the trial ; this was held inadmissible, the memorandum being no evidence. The protest of the note, showing due dili- gence, was also holden to be a mere memorandum, and therefore inadmissible. Oummings v. Ksher, Anth. N. P. 1. See also note a to this case. In New York, it is provided by statute that the certificate of a notary, under his hand and seal of office, of presentment and protest of a bill or note, and of the service of notice thereof on any or all the parties to the bill or note, specifying the mode of giving the notice, and the reputed residence of the party and the post-ofBce nearest thereto, shall be presumptive evidence of the facts contained in such certificate, unless the defendant shall annex to his plea an affidavit deny- ing the fact of having received notice. Laws of N. T. Sess. 56, p. 395, § 8. So also, it seems, in Kentucky. Bank of Kentucky v. Pursley, 3 Monroe, 238, 240. Where an action was brought for goods sold, and the plaintiff offered proof that the entries in his books, charging the defendant with the goods, were made by his clerk, who had gone to the West Indies ; held, that such evidence was not competent to establish the claim. Kenedy v. Pairman, 1 Hayw. Rep. 458 ; S. P., Whitefield v. "Walk, 2 Id. 24. So where the age of a defend- ant had been written in a Bible ; held, that this memorandum was not the best evidence, and the age might be proved by parol. v. , 1 M'Cord's Rep. 164 ; Butler v. Young, 3 Bibb, 520 ; Berry v. Waring, 2 Harr. & GUI, 103. See post, notes. And a memorandum by a district attorney, of the confession of a prisoner, need not be produced ; but he may give oral evidence of such confession. Patton v. Freeman, Coxe's Rep. 113. And see ante, note 134. In South Carolina, the testimony of a witness who swears positively from written memoranda, though they do not call to his memory the facts, is held not only admissible, but better evidence than unaided recollection. Pearson v. Wightman, 1 Rep. Const. Ot. 344 ; Haig v. Newton, Id. 423 ; Sharp v. Bingley, Id. 373. See Brown v. Anderson, 1 Monroe, 198. The general principle, however, deducible from a majority of the cases in this country, will be found, we apprehend, to be this, that the witness may inspect notes or memoranda to refresh his recollection ; and then, if he can, with a safe conscience, swear to the facts independent of the notes or memoranda, he is competent to testify ; but he will not be permitted to read his notes or memoranda to the jury; nor can they be admitted as evidence to the court or jury in any sense. Juniata Bank v. Brown, 5 Serg. & Rawle, 87 ; Robertson v. Lynch, 18 John. Rep. 451; Peeter v. Heath, 11 Wend. Rep. 477 ; Smith v. Lane, 12 Serg. k Rawle, 87. (The witness refreshes his memory by looking at the memorandum, and then swears from recollection. To refresh his memory he may use extracts from his own books, without producing them. How- land V. Sheriff of Queens Co., 5 Sand. 219. To give the entries any force as evidence, the books must be produced, and it must be shown that the entries were truly made. Wood v. Ambler, 4 Selden B. 170, and cases there cited.) (1) By Parke, B., in Alivon v. Furnival, 1 C, M. & R. 292. See also B. N. P. 254 ; R. v. Oas- tleton, 6 T. R. 236. (2) Rambert v. Cohen, 4 Esp. 213 ; Jacob v. Lindsay, 1 East, 460. CH. IX.] Hearsay and Secondary Evidence, 687 there is botli a verbal and written notice to deliver up property, and tlie one has no reference to the other, it is not necessary that the written notice should be produced.(l) (1) Smith V. Young, 1 Camp. 439. Note ITI. — It ia in general true, that where written evidence of a fact exists, all parol evidence is excluded ; but the rule is not universal. Per Thompson, J., Keene v. Meade, 3 Peters' Eep. 1, T. And see post of the text, and the notes ; 4 Starkie's Bv. 1054. If a note, for instance, has been given as evidence of a loan, the action may be brought for the money lent, and this proved by parol r the note must indeed be produced on the trial ; not, however, as the only competent evidence of the loan, but to be canceled, so as to prevent its being put into circulation. Keene V. Meade, svipra, per Thompson, J. So, where the defendant has made an entry in the plaintiff's book, of a sum of money paid by him to the defendant; the plaintiff need not produce such book for the purpose of establishing the payment, but may prove it by a person who knows the fact. Id. And if the defendant has written a letter to the plaintiff, acknowledging such payment, the same principle obtains. Id. per Thompson, J. This doctrine prevails as to aU written acknowledgments and receipts ; the transaction which they are designed to evince, may be proved by the parol testimony of witnesses, without pro- ducing the receipts or accounting for the absence of them ; but if the question be upon the receipts themselves, by whom signed, what are their contents, or the like, they then become the highest evidence, and must be produced. Southwick v. Hayden, 1 Cowen's Eep. 334 ; Heckert V. Haines, & Binn. Rep. 16; Wishart v. Downey, 15 Serg. & Rawle, 11 ; Romayne v. Duane, 3 Wash. C. C. Rep. 246 ; Townsend v. Atwater, 5 Day's Rep. 298, And whether the receipt be of money or specific articles, makes no difference ; the dehvery of the latter may be proved by parol, as well as the payment of the former, though there be a written acknowledgment of the fact in existence. Southwick v. Hayden, supra. In Wishart v. Downey (supra), Huston, J., intimates a doubt as to the reasonableness and propriety of this exception to the general rule, but he considers the question as settled in Penn- sylvania, by the previous authority of Heckert v. Haines {sv/prd). At the same time, however, he says that " if notice to produce the receipts is given, and they are not produced, and no reason is given why they are not, it would be matter which ought to affect the defendant's case more or less, according to circumstances." And in Virginia, the Court of Appeals, without deciding whether, if a witness speaks positively as to the date and amount of moneys paid, his testimony would be equivalent to the receipts themselves, held, that where a witness could not so speak, his testimony ought not to be received, unless it was previously shown that the receipts were lost, or out of the power of the party seeking to prove payment. Hamhn's Adm'r v. Atkinson, 6 Rand. Rep. 5*74. If it become necessary to prove the receipt itseli; and it be attested, the subscribing witness must be called. Heckert v. Haines, 6 Binn. Eep. 16, per Tilghman, C. J. So, to prove the eon- tents of a lost receipt, attested, the subscribing witness must be called. M'Mahan v. M'Grady, 6 Serg. 4; Rawle, 314. In Louisiana, it seems, if there be a written receipt, it must be produced as the highest evi- dence, and parol testimony is not admissible of the fact of payment. Beard v. Bijeaux, 8 Mar- tm's Lou. Rep. (N. S.) 459. And in Massachusetts, where an administrator, to support his charges in an administration account for payment of taxes, offered witnesses to prove the fact of such payment, held, that the receipts of the collector were better evidence, and should be pro- duced. Hall V. Hall, 1 Mass. Rep. 101. But see as to the receipts and written admissions of third persons, the text and the notes on admissions. A doctrine similar to that established with respect to receipts, &c., has been applied to bills of parcels ; and to prove a purchase of goods, the bill of parcels, delivered by the vendor to the vendee, need not be produced. Blood v. Harrington, 8 Pick. 553. See Davis v. Reynolds, 1 Starkie's Rep. 115. And a bill of sale of personal property (not being necessary to pass the title) need not be produced by persons claiming under the grantee, in a controversy between them and the grantor, and those claiming under him ;. but the former may prove by any other legal evi- 588 Of the Rule requiring the Best Evidence. [CH. IX. dwice, a title in the person under whom they claim, unless it be alleged that such hill contains pther matter than the mere transfer of the property, of which the grantor or those claiming under him could avail themselves, and notice has been given that its production would be required- Givens v. Reynolds, 6 Munf. 191, 200. So, in trover for goods, where a witness was called on the part of the plaintiff, and testified that as deputy sheriff, he took and sold goods corresponding with those claimed by the plaintiff, on an execution against S. N., and produced a paper specify- ing the goods ; and further that he made a copy from the paper, which contained an account of the articles purchased by the plainti^ at such sale, and a receipt which was delivered to the jilftifrtiff; and he was then :a3ked by the plamtiff wbait were the contents of that paper ; on ob- jection taken, which was ovemjiled, and writ of .error brought, the Supreme Court held, that it was sufficient for the plaintiff to show that he had purchased the goods at auction, and he need inot have produced the paiper. Waring v. Warren, 1 John. Bep. 340. But in an action of :ft8svmipsit to recover the value of articles withheld, and to recover back money paid for Buch as wef e defective in a pwehase, made by the plaintiff of the defendaait, of a ship and many aitieles ,oosita|ijied in her, it was held that the plaintiff ought to have produced the bill of sale, as the , ■highest evidence of the property qonveyed, and the covenants contained in it. Allen v. Potter, 2 M'Cord's Rep. 323. Parol .evidence may be given in Massachusetts, of the fact that an executor has posted up notices of his appointment, although there is a provision in the statute for admitting an afBdavit iWade by the executor within a giyen time; and the original advertisements or a copy need not .be produced. Green v. GiU, 8 Mass. Eep. 111. An arbitrator (testified that when the parties were before him, a bill was presented specifying tlip accounts Bubmitted, a copy of which he transmitted to the plaintiff, accompanied by the ■ftward; but the plaintiff denied that the account was received by him ; held, that the plainliff maa not thereby precluded from introducing parol evidence as to the items of his claim, unless jthe defendint could show that the account came into his possession or under his control Birk- beck V. Burrows, 2 Hajl's Rep. iN. T. S. C. 51. And the sale of a note, given by a third person, jnay be proved without producing the note. This, however, is only true where no inquiry is made respecting its contents. Lamb v. Moberly, 3 Monroe, 179. In an action for bribery at an .election, it was held that parol evidence was admissible to prove -the delivery of the precept to the returning officer, though it appeared that he had made an in- dorsement upon the precept, with a view to prove the time of his having received it, and that .the indorsement was attested by two witnesses. Grey v. Smithyes, 4 Burr. 2273; But wherever the contents of any written instrument, as such, are sought to be proved, it must be produced. Thus, where the plaintiff io an action for libel, in order to connect the defendant with the publication, introduced a reporter to a .p.ubhc newspaper, who testified that he had given ■a written statement to the editor of such paper, the contents of which had been communicated ■by the defendant for the purpose of publication ; and that the newspaper then produced, was .exactly the same save one or two trifling alterations not affecting the sense ; held, that what the reporter published in consequence of what passed with the defendant, might be deemed pub- lished by the latter, but that the paper could not be read, without producing the written account .jJelivered by the witness to the editor. Adams v. Kelly, Ey. & Mood. 149. And if it become necessary to prove statements made by a deaf and dumb witness, in writing, the written state' ment itself must be produced, or its absence accounted for. State v. De Wolf, 9 Conn. Eep. 93. But where a statement has been made orally, and taken down in writing by a third person, as a mere memorandum, the statement may be proved independent of the memorandum. See Patton T. Preeman, Ooxe's Eep. 113, stated, note 110. Whether a certain book in a public office con- tains deeds and surveys, must be shown by the production of the book itself, and cannot be shown by parol. Benn v. Pond, 1 Coxe, 319. In assumpsit for goods sold, copies fl-om the invoice- book of the plaintiff's agent residing abroad, and through whom it was alleged the goods were delivered, were offered in evidence to prove the sale and delivery ; but were rejected. Cooper V. Morrell, 4 Teates, 341. The day-book, say the court, containing the original transactions as they occurred, proved on oath or admitted, must be produced, or parol evidence given of the de- livery. Id. The defence being that H. was a joint owner and creditor with the plaintiff, and B(dd the goods, charging them to the defendant ; it was offered to prove H.'s books by his derk, without their production ; on objection, it was held they must be produced, as the best evidenoe. CH. IX.] . Where Writing Fnadmissible. 589 AltHougt. a pariah register is required by law to be made of all mar- riages, the fact of a marriage may be proved by the testimony of persona who were present at it ; or, where the marriage is not essential to the question in issue, by general reputation.(l) Witnesses are required to subscribe their names to a marriage entry in the register, in order to facili- tate the investigation of proofs of marriages. The mere production of a register, without proof of the identity of the parties married, is insuf- ficient.(2) Where a written statement cannot be received on the ground of its being in the nature of hearsay evidence, or for want of a stamp, there is no reason for prohibiting the substance of it from being proved by inde- pendent testimony. It has been shown that an informal examination, Keely v. Ord, 1 Dall. 310. Proof that the defendant was an infant, from a family Bible, into ■which the defendant's age had been copied by his brother from another Bible, where it was entered in the handwriting of the father, by direction of the father, who was dead, was held in- admissible, as not being the best evidence, till the original was shown to have been lost or de- stroyed. Curtis V. Patton, 6 Serg. & Eawle, 135. But abstracts from the books of the plaintiffs, resident out of the jurisdiction of the court, duly verified by the testimony of clerks, have been received as evidence of the reshipment of goods to the defendant. Bell v. Keely, 2 Teates, 255. If it be proposed to establish the contents of a bill of sale, bill of lading, or receipt, it must be produced. Mather v. Goddard, T Conn. Rep. 304; Givens v. Reynolds, 6 Munf. 191, 200. And see the cases before cited in this note, respecting receipts. (But a mere bill of parcels, receipted, of the sale of articles, need not be produced to prove the sale; it is in the nature of a receipt. Blood v. Harrington, 8 Pick. 552. Not so, where a party claims title under a bill of sale. Dunn v. Hewitt, 2 Denio, 63'?.) (1) See B, N. P. 247 ; Evans v. Morgan, 2 0. & J. 453 ; R. v. Allison, R. & R. 109 ; Birt v. Barlow, Doug. Ill; St. Devereux v. Much Dew Church, 1 TV. BL 367 ; Morris v. Miller, Id. 632 ; S. C, 4 Burr. 2067 ; Read v. Passer, Peake, 305. See, also, R. v. Durnell, oit. 2 C. & K. 459, n. Nor is the evidence of the attesting witness required to prove the handwriting of the parties in the register. Doug. 174. An entry of a marriage in a day-book is not admissible in evidence, if the entry has been afterwards made in the register. May v. May, Stra. 1073. And see Doe d. Warren v. Bray, 8 B. & C. 813. The proof of marriage may be made by circumstances, by evidence sufficient to satisfy the jury. Martin v. Martin, 22 Ala. 86 ; Taylor v. Robinson, 29 Maine, 323. Marriage is a civil contract (Keyes v. Keyes, 2 Foster (N. H.) 553), and must be made according to law. The State V. Bray, 13 Ired. 289. Mutual promises to marry at some futvfre time, though followed by sexual intercourse and the bu-th of a child, do not constitute a valid marriage. Cheney v. Arnold, 1 Smith (15 N. T. Rep.), 345. 13 civil actions, cohabitation raises a presumption of marriage that may be rebutted by showing that the parties afterwards lived separately. Weath- erford V. Weatherford, 20 Ala. 629; The State v. "Winkley, 14 N. H. 480; Knower v. Wesson, 13 Met. 143. But cohabitation is not essential to complete the marriage (Potior v. Barclay, 15 Ala. 439 ; Clayton v. Wardell, 4 Comst. 230) ; except in the case of an infant, after coming to the age of consent. Shafher v. The State, 20 Ohio, 1. In New York, a certificate 6f marriage, executed in due form, is made evidence of the fact. 2 R. S. 200, 201 (3d ed.). As to proof by certificate, see Gaines v. Relf, 12 How. IT. S. 472. (2) In Woodgate v. Potts (2 C. & K. 457), where, in an action for goods Sold, the defendant, a female, pleaded her coverture with George Potts. A copy of a register of marriage between George Potts and a female of the same name as the defendant was put in evidence, and it was proved that the defendant had cohabited, for several years, vrith a man whose surname was Potts, but whose Christian name was unknown to the witness. This was held sufficient evidence to go to the jury in support of the plea. 590 Of the, Buh requiring the Best Evidence. [CH. IX. taken before a magistrate, will not exclude oral evidence of what a pris- oner has stated. For although the witness is allowed to refresh his memory by reading the examination, he is supposed, in notion of law at least, to speak from his memory independently of the written paper. Where a witness read over to the defendant an account in writing, which was signed by the defendant, but which could not be used in evidence for want of a receipt stamp, the witness was allowed to refresh his memory by the inspection of the account, and to prove that he called over the items to the defendant, and that the defendant admitted them to be cor- rect.(l) In the same manner a verbal admission of a debt is evidence, not- withstanding there may be a written promise to pay.(2) Where an agent.for the plaintiff made a verbal agreement with the de- fendant, and afterwards put it down in writing (which was not signed by the parties), as a memorandum to assist his recollection, such writing is not the best evidence, nor indeed any evidence of the agreement, though it may be used by the agent for the purpose of refreshing his memory.(3) In the prosecution of Hunt for a conspiracy,(4) the Court of King's Bench determined that a paper, which had been delivered by the defend- ant to a person present at a meeting, as a copy of certain resolutions about to be proposed and read, and which was proved to correspond with the resolutions afterwards proposed, was properly received at the trial as evi- dence of those resolutions ; without proof of any previous notice to the defendant to produce the paper from which the resolutions were supposed to be read. This paper was considered, as against the party himself to whom it applied, to be fully as good evidence as any that could be pro- duced. In the same case, (5) it was held, that the inscriptions on flags and ban- ners, which had been exhibited to public view, might be proved by eye witnesses, speaking to what they had seen on the occasion ; and though it appeared that the flags had been seized and taken away by police officers (so that they might have been produced), the evidence was not considered on this account to be less competent ; such inscriptions are, as Abbott, 0. J., observed, the public expressions of the sentiments of those who bear them, and have rather the character of speeches than of writings. It may be observed, however, that the oral testimony was in this case adduced for the express purpose of representing accurately the contents of the writing, (1) Jacob- V. Lindsay, 1 East, 460. And see Dalisen v. Stark, 4 Esp. 1 63. In Maugham v. Hubbard (8 B. & C. 14), a witness, called to prove the payment of money, was allowed to refresh his memory by an unstamped receipt signed by himself. (2) Singleton v. Barrett, 2 0. & J. 369. (3) Trswliitt V. Lambert, 10 A. & E. 410. See further, on this suliject, Vol. II, Chap. 6, Of Private Writings. (4) E. V. Hunt, 3 B. & A. 666, 668, 6'72. See, also, Watson's Case, 32 How. St. Tr. 68, 83, 256, 257. (5) 3 B. & A. 566. CH. ix.j Eesolutions at Public Meeting. 591 and therefore might seem to fall directly within the principle which ex- cludes secondary evidence. "Whether resolutions, which have been proposed at public meetings, may be primarily proved by the parol evidence of witnesses, when the person proposing the resolutions appeared to read them from a written paper, was a point much discussed in the prosecution of Sheridan and Kirwan, in Ireland,(l) who were tried for an offence against the Irish Con- vention Act. The indictment began with averring that divers persons had assembled together, and intending to procure the appointment of a committee of persons (of a particular description, and for a specific object), entered into certain resolutions respecting such committee, the purport and effect of which resolutions were set out at length ; the indictment then proceeded to charge Sheridan with certain acts done by him for the pur- pose of assisting in forming such committee, and for carrying into effect the resolutions before mentioned. To prove the first averment, the coun- sel for the prosecution called a witness, who stated that at a general meeting (at which it was admitted the defendants were not present), the secretary of the meeting proposed a resolution, and read it from a paper. The proposition was seconded ; the secretary then handed the paper to the chairman, and the, chairman read it. The witness was then asked, "What was the resolution?" This question was objected to on the ground that the absence of the writing itself should be accounted for, before any parol evidence of its contents could be received. After a very full argument a majority of the court were of opinion, that this was not a case to which the distinction between primary and secondary evidence was strictly ap- plicable : that the proposed evidence was intended to show, not what the paper contained, but what one person proposed, and what the meeting adopted ; in short, to prove the transactions and the general conduct of the assembly ; and that such evidence could not be rejected, because some person present took notes of what passed. The form in which the argu- ment was presented by the solicitor-general was more striking : "A num- ber of persons," he said, " assemble and confer together — they agree to a certain resolution. If it be necessary to prove such a transaction in a crim- inal trial, would the prosecutor be bound to produce the resolution in writing ? Would the prosecutor be bound by the manner in which it was taken down by one of the confederates ? If the paper, supposed to con- tain the resolution, were produced, would that preclude the prosecutor from giving evidence of other matters which took place ? Or suppose, further, that the matter were reduced to writing in such a way as to avoid a criminal imputation, although every sentence of the debate or conversa- tion were criminal, would the prosecutor be bound , by the former, and precluded from giving evidence of the latter ?" (1) A. D. 1811 ; 31 How. St. Tr. 673. And see E. v. Moors, 6 East, 421, n. ; E. v. O'Coimell, Aim. & Trev. 236, 237. 592 Of the Rule requiring the Best Evidence. [oh. IX. Cases may here be mentioned, wMcli appear at first sigM to be excep- tions to the general rule now under consideration. But in none of these cases, it may be observed, could there be any ground for presuming that the party offering the proof withheld some better evidence, which, if pro- duced, would make against him. The reason, therefore, upon which the general rule is founded, does not apply to such cases. Proof of records. 1. "Where it is necessary to prove the contents of any record, or of pro- ceedings of a court of justice, or of entries in court rolls, or in public books or registers, it is sufficient to produce an examined copy.(l) This is on a principle of general convenience, and because it is apparent, that if the contents were misrepresented, there would be obvious means of ex- posing the fraud or error. Appointment to public office. 2. It is not, in general, necessary to prove the written appointments of public officers ; for this would be attended with general inconvenience ; and a strong presumption arises from the exercise of a public office, that the appointment to it is valid. The cases upon this subject sometimes ap- pear to be governed by the doctrine of admissions, but it will be seen, by the examples, that the exception is of a more extensive nature. In the case of j ustices of the peace, constables, &c. , it is sufficient to pro ve that they acted in these characters without producing their appoiiitments.(2) And in the ease of officers of any branch of the revenue, where the question is whether they are such, proof of being reputed to be so, or of having exercised the office, is good evidence of the fact, in any legal proceeding. (3) On an in- dictment for perjury, committed by the defendant before a surrogate in an Ecclesiastical Court, proof that the person who administered the oath, acted as surrogate, has been held to be sufficient prima faci£ evidence of his appointment and authority.(4) On a like indictment, an affidavit, purporting to be sworn before a public commissioner, was held admissible, without proof of the commission, on the ground that a commissioner for taking affidavits was a person acting as a public officer.(5*) And proof of (1) See Yol. II, Chap. 3, Sect. 1, Of Records and Judicial Proceedings. (2) By Buller, J., in Berrymaa v. "Wise, 4 T. R. 36S ; by all the judges in E. v. Gordon, 1 Lea. 0. 0. 515. Note 172. — S. P., Snow v. Peacock, 2 Carr. & Payne, 215, per Best, C. J. In an action by an attorney for fees, an allegation that he la an attorney of the Court of King's Bench ia evidenced by showing that he has acted as such. Berryman v. Wise, 4 T. E. 366 ; Pearce v. "Whale, 6 Barn. & Cress. 38; per Johnson, J., Brown v. Mims, 2 Eep. Const. Ct. 235, 328; 4 Starkie's' Et. 373. See note 173. (3) This ia expressly provided for by stat. 7 & 8 Geo. TV, o. 53, § 17 ; 8 & 9 Vict, c. 87, § 131. And see 8 & 9 Vict., o. 85, § 7, and o. 93, § 75. (4) E. V. Verelst, 3 Camp. 432 ; S. P.', R. v. Creswell, Lond. Sitt. after Mioh. 1816. (5) E. T. Howard, 1 Mo. & E. 187 ; R. v. Newton, 1 0. & K, 480. CH. IX.] Actinsf in Office. 593 a person's acting as slieriff,(l), or under-sheriff, is suificient proof of his authority to do any act necessary in the course of the ofi&ce ; as, in the latter case, for instance, to make an assignment of a lease, under an ex- ecution, in the name of the sheriff.(2) The like proof was held sufficient (1) Bunbury v. Matthews, 1 C. i K. 382. (2) Doe d. James y. Brawn, 6 B. & A. 243. See Plumer v. Brisco, 11 Q. B. 46, as to replevin clerk. Note 113. — In Porter v. Luther (3 John. Eep. 431), the defendant justified the taking of prop- erty as deputy sheriff under an execution, and, on the trial, offered to prove himself a general deputy of the sheriff by reputation ; the justice rejected the evidence, requiring him to produce his appointment ; and, upon certiorari brought, the Supreme Court reversed the judgment on the authority of Berryman v. "Wise (4 T. R. 366), cited in the text. The same principle has been applied to the case of magistrates by the Supreme Court of the United States. Turner v. Fendall, 1 Cranch, 111. In Vernon v. East Hartford (3 Conn. Rep. 475), it appeared that "W. had been appointed justice of the peace, and to prove him duly qualified to act, one P. was offered to show that W., since his appointment, had issued a writ and received the duty on it ; and the Court of Errors held the evidence admissible as primary proof, though the writ was not produced. And where a deed was produced, purporting to have been acknowl- edged before a person styling himself a justice of the Common Pleas, this was held sufficient, prima facie, that he was such till the contrary should- appear. Lessee of "Willink v. Miles, 1 Peters' C. C. Rep. 429. In assumpsit by the officers of a revenue cutter, to recover their proportion of a forfeiture, incurred by a breach of the non-intercourse law, against the collector ; it was held, that the officers need not produce their commissions, for proof that they acted as such was sufficient. Sawyer et aL v. Steele, 3 "Wash. C. C. Eep. 464. It has been held in Connecticut that a clergyman, in the administration of marriage, is a public officer; and his acts, as such, in the celebration of marriage, are admitted as prima facie proof of his qualification, without higher evidence. Goshen v. Stonington, 4 Conn. Rep. 209. Proof that an individual had executed and returned a writ directed to him as coroner, has been held sufficient evidence of his being commissioned as such, without proof of his commission. Toung V. The Commonwealth, 6 Binn. Rep. 88. The collector and trustees of a school district may be proved such by their acts and reputation. M'Coy V. Curtice, 9 "Wend. 11. And persons acting publicly as officers of a corporation are pre- sumed rightfully in office. See United States Bank v. Dandridge, 12 "Wheat. 70; also All Saints Church v. Lovett, 1 Hall's Rep. N. T. S. C. 191. The loregoing will suffice to show the extent to which the doctrine of the text has been carried ; and it is proper to be observed here, with regard to the effect of this species of evidence, that where the rights of third persons are concerned, it is, in general, enough for them to show that the officer thi"ough whom or by whose acts they claim, is such de facto; his not being so de jure also, is not an objection that can be made available to defeat, or in any way affect, their interests. Doty v. Gorham et al., 5 Pick. Rep. 487 ; Nason v. Dillingham, 5 Mass. Rep. 170 ; Fowler v. Beebe et al., 9 Id. 231 ; Gilbreth v. Brown et al., 15 Id. 180 ; The People v. Collins, 7 John, Rep. 649 ; M'Instry v. Tanner, 9 Id. 125 ; Reed v. Gillett, 12 Id. 296 ; Wilcox v. Smith, 5 Wend. 231. As to what evidence shall be sufficient to make out that a person is an officer de facto, and thus preclude an inquiry into the validity of his appointment or election, no precise rule of a general nature can be drawn from the authorities ; for each case must necessarily depend, in some degree, upon its own peculiar circumstances. In "Wilcox v. Smith (5 "Wend. 231, 234), Sutherland, J., delivering the opinion of the court, says : " The mere claim to be a public officer and the performance of a single, or even a number of acts, in that character, would not perhaps constitute an individual an officer de facto. There must be some color of an election or appoint- ment, or an acquiescence on the part of the public for a length of time which would afford a strong presumption of at least a colorable election or appointment." VoT. T 5« 594 Of the Rule requiring the Best Evidence. [OH. IX. on tte part of a plaintiff of his being vestry clerk ; and the rule was said to extend to all public officers.(l) The rule obtains, though the action be brought by a public oiEcer, as for a libel ;(2) or in a criminal prosecution for an injury to him, as for the murder of a constable in the execution of his duty ;(3) or even in a crimi- nal prosecution against a public officer for misconduct "in his office— as, upon an indictment against a person employed by the post-office, for steal- ing or embezzling a letter.(4) The rule does not, however, apply with regard to persons acting under a private authority, such as a tithe collectoT,(5) or assignees of a bank- rupt,(6) or the like. In such cases the appointment must be strictly proved.(7) Inquiry as to general mode of dealing, &o. 3. Inquiry has been allowed in some cases, as to a general mode of dealing, or as to the general result of an examination of accounts, and other such matters, where the evidence is the result of voluminous facts, or of the inspection of many books or papers, the examination of which could not convenient^ take place in court. Thus a witness may be asked But where the person assuming to be an officer is himself a party to the suit, and "the only individual to be injuriously aflfeoted by any inquiry into the validity of his official title, proof of acta, &o., is, in his favor, rosrs prima facie evidence of his being such. Fowler v. Beebe, 9 Mass. Eep. 231 ; Commonwealth v. Fowler, 10 Id. 290. As against him, his having acted in a public office will estop him from denying that he is such officer. Hughes v. James, 3 J. J. Marsh. TOO. So, also, where the officer is not a party, but his act is made the foundation of an affirmative criminal proceeding, instead of being used as a defence or protection, it may well be that his strict legal title to his office may be inquired into under such circumstances. Wilcox v. Smith, 5 Wend. 231, 235, per Sutherland, J., remarking upon Rex v. Verelst, cited in the text ; and he refers te 1 Hawk. P. C, o. 69, § 4. (1) M'Gahey v. Alston, 2 M. & W. 211. See R. v. Jones, 3 Camp. 131, as to lords of the treasury; Marshall v. Lamb, 5 Q. B. 115, as to masters in chancery; Butler v, Ford, 1 C. & M. 662, as to commissioners under a local' public act; Pritchard v. Walker, 3 C. & P. 212, as to trustees under a turnpike act ; R. v. Murphy, 8 C. & P. 310, as to commissioners to raise church rates under a local act; Doe d. Bowley v. Barnes, 8 Q. B. 1037, as to churchwardens and over- seers, even in an action of ejectment brought by them for parish property. And see Gauvill v. TJtting, 9 Jur. 1081, Bxch., as to parish officers generally. (2) By Parke, B., in M'Gahey v. Alston, 2 M. & W. 211 ; by Tindal, C. J., in Connell v. Curtis, 2 N. C. 228, 234. (3) R. V. Gordon, 1 Lea. 0. C. 615. (4) Clay's Case, 2 East P. C. 580 ; R. v. Roes, 6 C. & P. 606 ; R. v. Borrett, Id. 124 ; R. v. Townsend, Car. & M. 118 ; R. v. Goodwin, 1 Lew C. C. 100. But see R. v. Trenwyth, Ir. Cir. R. 112. As to the cases where the acting in a particular capacity is proof against a parly by way of admission, see swpra, Chap. 1, Sect. 10. (5) Short V. Lee, 2 J. & W. 468. (6) Pasmore v. Bousfleld, 1 Stark. R. 296. (1) The re-appointment of a town clerk by a corporation, under 5 & 6 Wm. IT, a 76, being required to be under seal, an entry of such re-appointment in the minutes of the town council is not primary evidence thereof. R. v. Stamford (Mayor, &c.), 6 Q. B. 433. As to army and navy surgeons, see Steavenson v. Oliver, 8 M. & W. 234 ; Milbanke v. Grant, 3 Q, B. 690. CH. IX.] Svibstance of Doewnewts. 595 as to a practice of accepting bills drawn in a particular manner, without producing the bills.(l) In this case, Lord Elienborough, C. J., observed, that parol evidence might be received of one unvaried mode of dealing between parties by means of bills of exchange ; but that if the mode of dealing varied, the bills must be produced. And this rule, it seems, a,p- plies. only to cases where bills or notes are negotiated by parties in their ordinary course of business ; thus, where A. and B. were in partnership, but not in a commercial business, and it was necessary to show that A. had an authority to indorse negotiable securities in the name of the firm^ it was held, that parol evidence could not be given of other seeuj-ities, in- dorsed in a similar manner, and paid by the firm, as showing a course of dealing ; but that such securities must be produced or accounted for.(2) A witness may give evidence of a general balance of accounts.(3) Where the question is as to the solvency of a party at a particular time, a witness may speak to the general result of his inquiries, as derived by the ac- counts rendered by a bankrupt of his affairs.(4:) But a witness who states that he had at one time received a number of letters from one of the parties in the cause, containing statements as to a particular fact, but which letters he had since, destroyed, cannot be ex- amined as to the general contents of such letters for the purpose of ascer- taining the impression thereby produced in his mind with reference to such fact.(5) A witness may be interrogated as to his examination of old records, and may state that they correspond in substance with a particular record which has been read, without going through the whole in detail, subject, however, to a full cross-examination.(6) Where original evidence not attainable. 4. Where the production of evidence indicates the existence of other evidence of a more original character, still if it can be shown that the better evidence is not attainable, the principle of the rule will not apply. Inscriptions on walls and fixed tablets do not admit of being proved, otherwise than by secondary evidence.{7) But where a notice is merely (1) Spencer V. Billing, 3 Camp. 310. (2) Levy v. Pyne, Car. & M. 453. (3) Roberta v. Doxen, Peake, 83. In Furness v. Cope (5 Bing. H4), a bankrupt's ledger was received, to prove that a person had no fiinds in the bank, Without calling the clerks who made the entries. (4) Meyer v. Sefton, 2 Stark. E. 274. (5) Topham v. M'Gregor, 1 C. & K. 320. (6) Rowe V. Brenton, 3 M. & E. 212. (7) E. V. Pursey, 6 0. & P. 81 ; Doe d. Ooyle V. Cole, Id. 360 ; Bartholomew v. Stephens, 8 0. k P. 728 ; Mortimer v. M'Oallan, 6 M. & W. 58, Where Lord Abinger, C. B., mentioned the case of a man who had been convicted of a libel written on the wall of a jail. 596 Of the Rule requiring the Best Evidence. [CH IX. liung up in an office, not fastened to tlie wall, it must b'e produced like any other accessible document.(l) Notices. 5. Notices of the dishonor of bills, notices to quit, and attorneys' bills of charges delivered under the statute, may be proved by duplicate origi- nals, or by examined copies, without giving a notice to produce or show- ing the loss of the original evidence.(2) Examination on the voir dire. 6. It has been already noticed, that the rule is not in general enforced upon examinations on the voir dire, owing to the peculiar circumstances under which those examinations take place.(3) Where documents lost, ka. With respect to the proof of documents, it is, in general, permitted to give secondary evidence of them, where they are destroyed or lost, or where they are in the possession of an adversary who refuses to produce them, or are not available in consequence of some reason of public policy, or of consideration for the interests pf witnesses. This subject involves several subordinate questions of great practical importance, as, for ex- ample, the necessary search after documents, and the due notice to pro- duce them; which wUl be more particularly considered in treating of written evidence.(4) In some cases, however, the mere loss of a document will not be suffi- cient to enable a party to give secondary evidence of its contents ; as, in the instance of a negotiable security, such as a bill of exchange or promis- sory note, payable to bearer, or indorsed in blank. In such a case if the holder of the bill or note has lost it, he cannot recover against the acceptor or maker ; for the instrument may be in the hands of an innocent and hona fide holder, who would have the right of action against the defend- ant.(5) If, indeed, the instrument was not in a negotiable state at the time of the loss, its production will not be necessary, and secondary evidence of its contents may be given.(6) So, if it is proved that the instrument is (1) Jones V. Tarleton, 9 M. & "W. 6JB. (2) See Tol. II, Chap. 6, Of Private Writings. (3) Supra, Chap. B, Sect. 1, Of the Mode of objecting to Competency. (4) Post, Vol. II. (5) Davis V. Dodd, 4 Taunt. 602 ; Champion v. Terry, 3 B. & B. 295 ; Hansard v. Robinson, 1 B. *; 0. 90; Pierson t. Hutchinson, 2 Camp. 211 ; S. C, 6 Esp. 126 ; Mayor v. Jolinson, 3 Camp. 324; Bavan t. HUI, 2 Id. 381 ; Woodford v. Whiteley, M. & M. Bit. Under such circumstances the payee should offer an indemnity to the acceptor of maker, and apply for a new hiU or note ; and if this is refused, he must apply for relief to a court of equity, under the 9 & 10 Wm. Ill, c. 11, § 3, and 3 & 4 Anne, o. 9. See Rolt v. Watson, 4 Bing 214. As to the course of proceeding inequity, see Warmsley v. Child, 1 Ves. sen. 341; Toulmin t. Price, 5 Yea 238; Ex parte Greenway, 6 Ves. 812 ; Macartney v. Graham, 2 Sim. 285. (6) Wain T. Bailey, 10 A. & B. 616 ; Long v. Bailie, 2 Camp. 214. CH. rx.] Lost Securities. 697 destroyed, secondary evideuce of its contents is admissible ;(1) thougli this appears formerly to have been doubted.(2) With respect to the cases where the more original evidence is to be supplied by the testimony of an individual, questions frequently occur in regard to the absence of attesting witnesses, or of persons who have made depositions. Where there is not sufficient proof that the parties are dead, some difficulty often arises as to whether any, and what, causes of absence shall be sufficient to allow of the admission of secondary evidence. The search after absent witnesses is another point of considerable practical im- portance. These matters will be more particularly considered in treating of written evidence, in which part of the work it will also be more con- venient to examine the cases where the proof of documents by attesting witnesses may be dispensed with, from various other causes besides the in- ability to procure their attendance. It may be proper, however, to observe in this place, that where it is proposed to discredit a witness — in which case it is proper to give him an opportunity of explaining his own acts and declarations previously to the proving of them by other witnesses (such inquiry not being irrelevant to the issue), it will be necessary to examine the witness as to these matters in the first instance, notwithstanding his answers would tend to criminate himself.(3) Where original evidence is not available, many questions have arisen as to what shall be deemed sufficient secondary evidence. These questions usually occur in the proof of documents, and will, therefore, be more con- veniently treated of in the second part of this work. And to the same part belong the questions, whether particular documents are the best, or secondary evidence. (1) Blackie t. Pidding, 6 C. B. 196. And see Pierson v. Hutchinson, and Woodford v. Whiteley, utaupra. (2) See Hansard v. Robinson, ut svgpra. (In this country, it is not in general necessary for the owner of a lost negotiable instrument to file a bill in equity ; he may have a recovery on it in a court of law, on giving an adequate indemnity against any future claim to be founded on the bill or note. Edwards on Bills and Notes, 295, 310.) (3) The Queen's Case, 2 B. & B. 313. See EdmSnstone v. "Webb, 3 Esp. 264 See Yol. II, Chap. 9, Of the Examination of Witnesses. 598 Of Presmniplime Evidence, [CH. X. CHAPTER X. OF PBESUMPTIVE EVIDENCE,. AND OF PEESUMPTIONS. In the preceding, chapters we have considered the various: general rules whiek have been adopted in our courts' of law relative to the exclusion of evidence. In the present chapter it is proposed to treat of the nature or quality of evidence ;, more especially with regard to presumptive or eircum- stantcccl proof,, as contradistinguished from direct proof. Fiiesumptive evidence defined. Where the facts proved are not the precise facts in issue, and the jury are to come to a conclusion upon th& facts in- issue, by an act of reasoning from those other proved facts,, the evidence in such case is said to be pre^ sumptive.(l) A presumption ©f fact- is, properly, an inference of that fact from other facts that are known ; it is an act of reasoning.(2) In drawing an infer- (1) Note I'? 4. — The rules of presumptive evidence apply to corporations as well as mdividtials'. Persons acting publicly as officers of the corporation, are presumed rightfully in ofEce ; the pre^ vious necessary steps are presumed, in order to make a corporate act legally operative ; grants and proceedings beneficial to the corporation are presumed to have been accepted by it, especially when the presumption is fortified even by slight acts indicating an intention to accept ; a general agent of the corporation may prove his authority by corporate acts contemplating or recognizing it ; a charter may be presumed from the long exercise of corporate rights ; or the acceptance of a new charter, from tho acts of the corporate officers ; or a demise fi'om year to year to or from the corporation. So of the extent of their possession, drawn in question by an ejectment. So a surrender of their corporate rights, or a contract or promise by the corporation, or a regular vote of the corporate body. These general positions are advanced and illustrated from various reported cases, English and American, by the Supreme Court of the United States in United States Bank T. Dandridge (12' "Wheat. '70 to W). (2) Note 115. — " A necessary and invariable connection of facts is not required ; it is enough tf one fact is ordinarily and usually connected, with another." Per Parfce, J., in Doe ex dem. Patteshall v. Turford, 3 Bamw. & Adolph. 890. " That the fact to be. inferred oftm accompanies the fact proven, is not sufficient ; it should most usiiaUy accompany it ; and I would say, in the absence of all circumstances, that it should rarely otherwise happen." Per Henderson, J., de- livering the opinion of the court in Hart v. Newland, 3 Hawks, 122, 123. "The circumstances should be strong in themselves, should each of them tend to throw light upon and to prove each other ; and the result of the whole should be to leave no doubt upon the mind that the offence has been committed, and that the accused and no other could be the person who committed it." Per "Washington, J., United States v. Johns, 1 "Wash. 0. C. Rep. 372. In the last case (p. 312 to SH), the learned judge examines a train of circumstances, pro and con, upon the question of intent to destroy the prisoner's vessel and cargo to defraud the underwriters. It is more usually put to the jury that the circumstances should overcome reasonalle doubt, as being consistent with guilt only, and inconsistent with innocence. Atwood's Case, before Golden, Mayor, N. T. Gen. Sess., June, 1819, 4 0. H. Rec. 91. And see Plunket's Case, before the same, N. T. Gen. Sess., Sept. CH. Si.-]| And of Presumptions. 599 ence from facts proved, regard must always be had to the facility that ap- pears to be afforded for explanation or contradiction. ISTo person is to be required to explain or contradict, until enough has been proved to war- rant a reasonable conclusion against him in the absence of explanation or contradiction ; but when such suf3Scient proof has been given, and the nature of the case is such as to admit of explanation or contradiction, human reason cannot do otherwise than adopt the conclusion to which the proof tends, if no explanation or contradiction is offered. (1) A presumption, then, is a probable inference, which our common sense draws from circumstances usually occurring in such cases.('2) The slight- lans; 3 a H. Rec. 13T, 138. See the charge in The People v. Gardner, 1 'Wheel. Cr. Gas. 25, and Rowley's Case, 1 C. H. Bee. it, 49. Iq deceit for the sale of a oonsumpiiive negro, the defence was that the plaintiff's wife knew of the disease, whence it was sought to infer that the plaintiff had knowledge of it also. But this evidence- was- denied by the court, who aoeompanied' the denial with the remarks of Henderson, J., in Hart v. Newland; ut swpra. See note 177. ' (1) By Abbott, C. J., in R. v. Hurdett, iB.St. Ad. 162. Note ns. — Slabitur presmtvptiomi donee prdbetur in conirarivm. 2"Ev. Poth. 329, No. 16, § 14; Helm's Lessee y. Howard' 2 Har. & M'Henry, 77 ; Miller v. The Resolution, 2 DaU. 22, 231 ; Livingston's Bx'rs v. Livingstoni 4 John. Ch. Rep. 287, 293. So that that there are some aosertions which should always' be holden true till the contrary be proved, and others that are always holden contrary to truth, until they are proved. 1 Dom. b. 3; tit 6, § 4, art. 7. For illustration of this, see the following note. (2) KoTE 177. — gee note 175. The ground of all presumptions is the necessary or usual con- nection between facts and circumstances ; the knowledge of which connection results from ex- perience and reflection. A presumption la, therefore, " an inference as to the existence of a fact not actually known, arising from its necessary or usual connection with others which are known. It is upon this principle that all our knowledge of those relations and existenceSj which are not perceptible to the huma,n senses, must depend." The force of presumptions is almost intuitively perceived by mankind ; and that principle of the mind which prepares it to expect the future aissociation of circumstances, because it has been accustomed to find them associated, cannot be accounted for, except by setting it down as imposed upon us by the law of nature. It iat&e same principle which leads us to reason upon cause and effect in all the regions of inductive phi- losophy; of which the doctrines of presumptive evidence rank as an important branch. The triors are to be satisfied that one circumstance has always, or at least usually been found in con- secutive connection with another,, the like conduct with the like motive, the fact to be presumed with the fact established by direct proof. See 1 Stark. Ev. 23 to 29, 37 to 39, and 3 Id. 493, 494; 1 Dom., b, 3, tit. 6, § 4, art. 3. Post, of the text. It was proposed to infer that a surveyor had laid off the land in question twice by aciuai sw- vey, because two paper surveys were made hj him. Tne Court of Appeals of Kentucky, by Robertson, J., assumed the fact as common, that large surveys were often made by surveyors on the ground, and subdivided upon paper in their offices. And they denied the result contended for, as being a violation of the principles of circumstantial and presumptive evidence, " which respect the order and laws of moral and physical nature in regard to cause and effect." Wallace v. Maxwell, 1 J. J. Marsh. 447, 451, 452. See also Newland v. White, stated ante, note 175. On the other hand, among the various cases where presumptions have been allowed, and which are hereafter noticed both in the text and notes of these volumes, the greater variety of illustration will be found in prosecutions for a divorce or for damages, on the ground of criminal conrersstion ; cases where both the offending parties always seek concealment ; and are usually 600 Of Presumptive Evidence, [CH. X. successful in placing themselves beyond the reach of direct testimony ; and where you are thrown, as the only resource, upon such circumstances " as would lead the guarded discretion of a reasonable and just man to the conclusion." Accordingly, cohabiting together for months or years (Loveden T. Loreden, 2 Hagg. Consist. Rep. 1 ; Cadogan v. Cadogan, Id. 4, n.) ; or the man' living at a neighboring inn, and frequently resorting to the woman's house, who lives sepa- rately from her husband, the man's clothes being at the woman's house ; he taking his meals there ; his horse being there, though he be absent for a few hours of the night (Cadogan v. Cadogan, supra) ; sleeping in the house, though apparently in a separate room ; the man being admitted to her bed chamber under the plea of illness (Rutton v. Rutton, cited in Cadogan v. Cadogan, swpra) ; are among the strong circumstances upon which courts and juries proceed. In another case (Loveden v. Loveden, 2 Hagg. Const. Rep.-l to 53), the offender was long received on a footing of hospitaUty at the husband's house ; and a fondness was observed between the former and the wife, being indicated, by their early return from hunting parties, and their solitary rambles, arm and arm, through the garden and plantations. Pinally suspicion was excited by their indelicate familiarities ; walking in the garden with arms around each other's waist, and once kissing each other ; often retiring to separate rooms without the husband's observation ; the wife's particular attention to the offender's accommodation when he came to the house ; the preparation and ornaments of his room ; her assisting to make the fire there ; addressing him particularly at dinner and meals ; his visits being usually when the husband was absent ; and, while there, she ordering all others to be denied to her ; and on the husband's return, they sepa- rating, and appearing to have met for the first time ; their meeting upon signals to ride together in the park ; he laying his hand on her hip, and on being observed, withdrawing it in confusion ; laying his hand familiarly on her shoulder ; her admitting him into her dressing-room, where other gentlemen were scarcely ever admitted ; and on a friend remonstrating with her she taking it ill, and refusing to alter her behavior ; and their stUl seeking opportunities, and apparently meeting upon assignation. On this evidence. Sir William Scott observes, " When an improper attachment is admitted to have existed between the parties ; when it is admitted that indelicate acts have passed between the parties when they were within the reach of observation, shall it not be concluded that those acts were carried much farther when they were out of reach of observation?" The case was then followed by proof of written correspondence between the wife and the alleged adulterer, which the judge said would be a circumstance, though its nature might be unknown, but especially where he saw that it avowed an amatory attachment. After this, while the husband was absent, the paramour visits his house, and is alone with his wife three-quarters of an hour. He again comes, when she hurries to meet him, shakes him by the hand, presses him into the green dining-room, afler which they are seen in one of their solitary rambles. She was much in the habit of going about with her open carriage in the streets ; but having on one occasion taken up her paramour, she rode with it closed, though on a very warm day ; and on another day, after a meeting in the green-house, he was seen skulking away in dis- guise, on the return of the husband's carriage. Other instances are then given of their occasion- ally being together in the rooms of the house ; and the particular care she took of her dress when her paramour was expected, the perfuming of the rooms, oUing the doors to preserve sUenoe, &o., &c. More direct disclosures were finally made ; but it is evident the case would have been sustained much short of that. Indeed, the opinion of the judge, ranging through fifty pages in the original report, presents a numerous and diversified group of circumstances, and the manner of using and adapting them to the ends of justice ; tad the whole will be found an able commen- tary on tho general principles of circumstantial evidence. In Cadogan v. Cadogan {mpra), the judge remarks, that finding persons in such a situation as generally leads to a presumption of guilt, courts must presume it in all cases attended with the like circumstances. They cannot adopt the extravagant professions of platonism for the principles of their decisions. It is physi- cally possible that persons may be in the same bed together without criminal intercourse. Courts of justice, however, cannot proceed on such grounds. The latter circumstance alone was held sufBoient to warrant a jury In finding tlie defendant guilty. State v. Green, Kirb. 61. It may be useful to follow out the general principles with which we started this note, by some of their subdivisipns and cases, though we must stand principally indebted for them to other heads of these volumes. CH. X.] Arid of Presumptions. 601 1. The law presumes that a man intended the result which naturally followed the means voluntarily used by him. On this principle, a libel injurious in its tendency was declared action: able per se. Haire v. Wilson, 9 Barnw. & Ores. 643 ; Eex v. Shipley, 4 Doug. 1'7'f, per Willes, J., S. P. And several persons having caused a plate to be struck calculated for the alteration of bank bills from a lower to a higher denomination, were held to intend the usual consequence, and were convicted of a conspiracy to defraud, though not a bill was altered. MaJone's Case, before RadcUfif, Mayor, N. T. Gen. Sess. Jan. 1817, 2 C. H. Kec. 22. And see The People v. Bradford, 1 Wheel. Or. Cas. 219, 221. 2. The seeking of opportunities and means to commit a criminal act ; the flight of the accused ; concealing or showing anxiety to conceal, evidence of guilt ; are circumstances for the prosecu- tion. The fabrication of false or contradictory accounts is a famiUar instance ; as of the prison- er's residence, or occupation, or acquaintances. Coe's Case, before Eadcliff, Mayor, N. T. Gen. Seas. Sept. 1816 ; 1 0. H. Reo. 141, 143. So making arrangements to escape. Id. 'Using or signing a feigned name. Id. So concealing instruments of violence or counterfeit money. See 1 Stark. Ev. 29 to 33, and 2 Ev. Poth. 337, No. 16, § 14. Fraudulently passing, or possessing with intent to pass, counterfeit bills, is a crime where guilty knowledge and intent must gene- rally be derived from circumstances. Among these are entries of the purchase of counterfeit bills in cabalistic language used among counterfeiters ; coincidence between false bills found in the prisoner's pocket-book and those found in the recesses of his house or residence ; that the prisoner had failed to show a good character; the possession of large quantities of spurious notes (The People v. Gardner, Sept. 1822, N. T. Gen. Sess., before Hiker, Recorder, 1 Wheel. Or. Cas. 23, 25) ; paying away the bill without calling for change due on the purchase (Rhodes Case, before Radcliff, Mayor, N. T. Gen. Sess. Jan. 1816, 1 Cit. H. Reo. 1, 2) ; passing a com- paratively large bill for a small quantity of liquor not drank, and immediately leaving the store ; a short time after returning with -a, similar bill, attempting the same practice ; and on being charged, fleeing into the woods, and not accounting for the possession of the bills. Helm's Case, before Riker, Rec, N. T. Gen. Seas. March, 1816, 1 C. H. Rec. 46, 47. So an attempt to con- ceal or destroy a counterfeit bill, the prisoner refusing to give an account of himself or to tell his name, a large amount of counterfeits being found in his portmanteau (Galbrant's Case, before Radcliff, Mayor, N. T. Gen. Sess. July, 1816, 1 C. H. Rec. 109, 110); denying that he passed the forged check, and refusing to disclose from whom he obtained it ; held sufficient to convict, no satisfactory account being given. Tosburgh's Case, before Radcliff, Mayor, Aug. 1816, N. T. Gen. Sess. 1 0. H. Rec. 130. So two persons being engaged in passing the bUl, and contra- dicting each other and giving unsatisfactory accoimts on their separate examination. Reynolds' Case, before EadclifT, Mayor, U. T. Gen. Sess. March, 1817, 2 0. H. Rec. 47. Concealment or attempt to conceal false money (called a strong circumstance in Stewart's Case, before Radcliff, Mayor, N. T. Gen. Sess. June, 1817, 2 0. H. Rec. 87). In this case one bUl was found in the cuff of the prisoner's coat, and, on search at his boarding room, another was found in his panta- loons pocket. So, pretending that the bill was received from S., in the market, without farther account, averring that the note- was good, catching up the change in a hurried and confused manner, without counting it ; offering a sum of money to the officer to release him ; and on this being declined, attempting to escape by knocking the officer down, and giving a confused and unsatisfactory account of the transaction. The People v. Quackenboss; before Riker, Recorder, N. T. Gen. Sess. Dec. 1822, 1 Wheel. Or. Cas. 91, 93. On a charge of receiving stolen goods with knowledge ; finding them secreted in the prisoner's store, in a place convenient for concealment ; considerable stolen property being found up stairs ; the prisoner, on being questioned, giving no satisfactory account of them ; a great quantity of stolen goods being found in his house ; with bad character of the accused ; were allowed as proof of knowledge. People v. Teal, before Riker, Recorder, N. T. Gen Sess., March, 1823, 1 Wheeler's Cr. Cas. 199, 201. So, buying the goods at a reduced price, they being of a large amount, receiving them of a stranger; throwing them into a trunk in a confused and crowded manner; the trunk being found in a room up stairs in the prisoner's house, though he kept a store. People V. Cochrane, before Riker, Recorder, N. T. Gen. Sess., Nov. 1822, 1 Wheel. Cr. Cas. 81, 84 The falsity of pretences on which goods are obtained, may also be inferred irom circumstances. Lazarus' Case, before Radcliff, Mayor, N. T. Gen. Sess., June, 1816, 1 0. H. Reo. 89. On the other han(J, in cases of counterfeit bills, circumstances considered favorable to the 602 Of Pre3unvpiw& Evidence, [CH. I. prisoner are, hia receiving the counterfeit bill3 as good in the regular course of business (People V. Bryan, before Riker, Recorder, N. T. Gen. Sess., Sept., 1822, 1 WheeL Cr. Cas. 21, 22); passing the note to an acquaintance, and giving a true statement of the prisoner's business. So, Raving been in the state prisson before, he might have offered money to procure his escape, though innocent, he knowing the impression f o be against him. So, no other spurious bill being found upon him ; and since lie was discharged from the state prison, so conducting as to be thought trustworthy by his employers. The People v. Quackenboss, supra. In charges for knowingly receiving stolen goods, the following circumstances have been recognized as favorable to the prisoner: Going out to seU the good's in the daytime, stating that he had other goods of the like kind ; and offering to be present at an auction sale of them ; leaving the original marks on most of the goods ; and after being arrested, aiding in the arrest of the thief; who refuses to answer on examination. People v. Cochrane, supra. So, part of the goods being found in the prisoner's store, opea to the view of those who called in ; the original letters on a stolen dressing box being allowed to remain, by which the owner could identify it ; with good character as to honesty. People v. Teal,, sajgra. Again : Omnia presimumitur contra spoliatorem; as if a devisee in the first will destroy a second, if is ground for presuming that the latter contained a revocation of his devise in the first. Ad- mitted in Harwood v. Good'right, Cowp. 92. And an obligor, obtaining and destroying his bond, affords a presumption that it was given for » valuable consideration. Cameal's Heirs v. Day, Iiitt. Sel. Cas. 492, 493. So, the mere non-production of written evidence, which is in the power of the party, generally operates as a strong presumption against him (2 Ev. Poth. 336, 33T, ISo. 1G„ § 14) ; not that, even a refusal, on notice to produce, shall be taken to establish the writing as claimed by the party giving notice ; but every doubt as to its contents, everything equivocal in the secondary evidence to which the party is driven, or imperfect, vague, or uncertain ; as in dates, sums, and whatever is material, shall be presumed against the party who might remove every doubt by producing the higher evidence. Some general evidence of its material parts must be given before the presumption attaches. life &, Fu-e Ins. Cbmp. v. The Mech. Fire Ins. Cbmp. of New York, 1 Wend'. 31. And it may be remarked generally, that on a trial either in civil or criminal cases, the omitting to produce evidence in elucidation, which is in the power of the party or within his peculiar knowledge,, shall be holden to turn every doubt against him. 1 Stark. Ev. 34. 3. So in civil oases, the law looks for evidence to long, delay or acquiescence in the exercise of an adverse right ; as in the uninterrupted enjoyment of property or privileges. This we shall presently see at large in the subsequent pages, as to the presumption of payment, grants, agree- ments, licenses,, &c., founded upon time. 4. The law looks favorably on the good character of one accused of an infamous crime, where the proof against him leaves the case otherwise doubtful. 1 Stark. Ev. 35 ; People v. Mead, before Riker, Recorder, IT. T. Gen. Sess.,. Sept. 1822, 1 Wheel. Cr. Cas. 36, ST, 38. This head will also be hereafter more fully considered. 5. Presumptions may also arise from artificial habits ;, as the course of trade ; the course of the post ; the customs of a particular trade, or of a particular class of people. In this way, the time of credit, the time when a letter was received, &c., &o., may be proved, and stand so till rebutted. 1 Stark. Ev. 356. And see 2 Ev. Poth. 334, No. 16, § 14. The reliance on the course of the post is most conspicuous in suits to charge drawers and indorsers of commercial paper, which will be considered in the second volume, and see De Forest v. Hunt, 8 Conn. Rep. 179. The oourae and custom of trades and classes run through every department of society, giving a construction to their words and conduct, and charging them with notice and knowledge. It was lately held that the ofScers of an insurance company shouldbe presumed cognizant of the marine intelligence contained in a newspaper taken at the ofBoe, especially that which related to their own port. Green v. Mereh. Ins. Co. of New Bedford, 10 Pick. 402. So, that a client,, resident abroad, has left all material papers with his attorney, who defends his cause in England; but not if he reside in England ; and m no case, if the paper be not obviously material. Vice v. Anson, 3 Carr. & Payne, 19. So, that all tlie partners may have access to and know the contents of partnership books, though this may be repelled by circumstances. United State's Bank v. Binnej', 5 Masom 176. So, that a bank stockholder is entitled to a certificate of ownership, as it is the habit of nearly aU banks to give this. Huasey v. The Man. & Meoh. Bank of Nantucket, 10 Pick. 415. CH. X.] And of Presumptions. 608 Presumptions also arise from the state of society. In a slaTehoIding< state, a, person bearing a black oomplexion was presumed to be a slave ; though otherwise of a yellow or mulatto. Scott ■V. 'Williams, 1 Der. 336. "While in New Tork, where slavery yet barely lingered ; and a major- ity of blacks were free, the same preaumptim was denied, even from a plain African color and features. Rogers' Ex'rs^ v. Berry, "Wash. Circ. June, 1812, Gor. Tatea, J.,, MS. ; S. C. but not S. P., 10 JohaRep. 132. The wife, in the husband's absence,- was presumed to have been left an agent for the hiring out of his horses. Church v. Landers, 10 "Wend. 19, 80. A servant by the year having left her service a considerable time, the presumption (in England) is that her wages were paid. Sellen v. Norman, 4 Oarr. & Payne, 80. A fortiori when the seorvice is in a factory, where the custom is' to pay weekly. Note a to Sellen v. Norman, supra. t The latter case comes rather to the practice of individuals, concerning which there are various cases. Only some few of the modern ones will be given, A man allowing his friend repeatedly ta forge his name upon commercial paper, by submitting to have the paper enforced, was held incapable of defending against subsequent forgeries. "Weed v. Carpenter, 4 Wend. 219. The habit of the retailer to charge interest after ninety days was held to bind the customer, who shall be presumed to know the habit. M'AUdster v. Reab,, 4 Wend. 483,. 490 ; S. C, on error, 8 Wend. 109. So, the practice of a porter to a bank as to the time of presenting checks. Merchants' Bank v. Spicer, 6 Wend. 443. The practice of clerks in a counting-house as to mailing, letters. Toosey v. William^ 1 Mood, k Malk. 129. And the habit of an attorney's office,, as to the pre- paration and service of notices to quit. Doe ex dem. Patteshall v., Turibi-d, 3 Barnw. & Adolph. 890. From the custom of parents to furnish their daughters,, on marriagpj with outfits, the deUveqr of property, e. g. a slave,, by a parent to a daughter, on such an occasion^ without explanation, win be presumed to be a, gift .Smith v. Montgomery's Adm'rs,. 5 Monroe, 5.02, 504 ;, Bell v. Stro- ther, 3 M'Cord, 20T, 210 ; Johnson v. DQliard,. 1 Bay, 232 ; Teague v. Griffin, 2 Nott & M'Cord, 93 ;, De Graffenried v. Mitchell, 3 M'Cord, 506 ; Byrd v. Ward, 4 M'Cord,. 228. So, if some time after marriaga M'Cluney v. Lockhartj 4 M'Cord, 251. See 1 Dom. b. 13, tit. 6, §4,, art. T, that persons shall be presumed to act according to their ]llinciples and customs. 6. So things are held to. be legally and, pr X, siastieal,(l) civil, (2) and maritinie(3) laws, at least so far as they have been acknowledged and acted upon by tbe proper tribunals of this country ; the doctrines and jurisdiction of the courts of equity,(4) and the general practice of conveyancers.(5) Proceedings of superior courts, &c. Bach court is bound to take notice of its own rules and course of pro- ceeding,(6) the general customs of the superior courts of Westminster,(7) and the extent of their jurisdiction ;{8) the privileges of attorneys,(9) and of other officers of the superior courts.(lO) Each court will notice who are its own officers,(ll) but not who are the officers of the other courts.(12) They are bound, also, by statute,(13) to notice the signature of any of the judges of the superior courts. But they will not judicially notice the time when an order was made by the judges under the 1 Vict. c. 55, allowing a scale of fees.(14) And a court will not notice a consent on a summons, unless followed, in due time, by an order drawn up and served.(15) The superior courts will notice courts of general jurisdiction, and the course of their proceedings — as, the courts of the Counties Palatine, and of the great sessions in Wales,(16) (now a,bolished) ; also the limits (1) Bro. Abr. tit. Qam-e Impedit, pi. 12 ; 1 Roll. Abr. 526 ; 6 Vin. Ab. 496. See also Atbdnaon V. Gomisli, Lord Raym. 338 ; S. C, Garth. 446 ; 5 Mod. 395 ; Comb. 475 ; 12 Mod. 194; Holt, 43. (2) See R. v. Cambridge (University), Lord Raym. 1334. (3) Chandler v. Grieves, 2 H. Bl. 606, n. (4) Elliott V. Edwards, 3 B. & P. 181 ; Maberly v. Robbing, 5 Taunt. 625. See also In re Clarke (2 Q. B. 619), as to the recognition by the common-law courts of the jurisdiction of the master of the Rolls. (5) By Lord Hardwicke, C. J., in WiUoughby v. Willoughby, 1 T. R. 112. See also by Abbott, C. J., in Doe v. Hilder, 2 B. & A. ?93 ; in Doe v. Plowman, 2 B. & Ad. 511 ; and in Rowe v. Grrenfel, Ry. & M. 398 ; and by Lord Bldou, C, in Howard v. Duncan, 1 Turn. & R. 86. (6) Dobson v. Bell, 2 Lev. 116; Hugh v. Robinson, 1 T. R. 118. (I) Lane's Case, 2 Rep. 16, b ; Wolrioh v. Massey, Gro. Jao. 61 ; Mounson v. Bourn, Ore. Car. 518, 526. See also 6 Q. B. 780, 784. (8) See by Alderson, B., in Doe d. Counsell v. Caperton, 9 C. & P. 116. (9) By Lord EUenboroiiigh, 0. J., in Stokes v. Mason, 9 East, 426. See also Ohatland v. Thornley, 12 East, 544; Hunter v. Neek, 3 M. & G. 181; "Walford v. Fleetwood, 14 M. & W. 449. (10) Ogle v. Norcliffe, Lord Raym. 869. (II) Howell V. Wilkius, 7 B. & G. 783. See also Bland v. Drake, 1 Ghitt. R. 165. In Moiling V. Poland (3 M. & S. 157), Bayley, J., had refused to take judicial notice of the handwriting of any of the masters of the court. (12) R. V. Hare, 13 East, 189. (13) 8 & 9 Vict. c. 113, § 2. Even before this statute each court would reoogma© the signa- ture of one of its own judges. R. v. Hare, ut supra. (14) PUkington v. Cooke, 17 L. J. (N. S.) Exch. 141. (15) Wood T. Harding, 3 C. B. 968. (16) Peacock v. Bell, 1 Saund. 76, a. See also Tregauey v. Fletcher, Lord Raym, 154. SEC. I.] Of Matters Judicially Noticed. 623 of Counties Palatine,{l) and of ecclesiastical jurisdiction with reference to granting administration of the effects of a deeeasied peTSon.(2) Proceedings of courts of different jurisdiction. But it seems that no court is bound to take notice of the peculiar practice of another court which is of a different jurisdiction, and employs a foreign coarse of procedure ; thus the common-law courts will not take judicial notice of the practice of the Court of Chancery, (3) or of the Courts of Review and Bankruptcy,(4) or of the Ecclesiastical Courts ;(5) or of any inferior court.(6) But a court of error will take judicial notice of the authority and powers of the court from which error is brought.(7) The courts will not take judicial notice of the sheriff's book ;(8) nor of the rules and orders of the Poor Law Commissioner*, made under the authority of the 4 & 5 W. IV, c. 76, § 15.(9) Foreign laws. With regard, also, to the laws and customs of a foreign state, they must be proved as facts, as our courts cannot take judicial notice of them.(lO) And the same rule applies tothelawsof Scotlaud,(ll) andof ourcolonies.(12) But it has been said that the courts in England will take judicial notice (1) 2 Inst. 55t. (2) Adams v. Terre-tenants of Sarage, Ld. Ea-ym. 854, 856 ; S. 0., Salk. 40 ; 6 Mod. 134 ; Wbyte V. Rose, 3 Q. E. 493. (3) Dicafl V. Brougham (Lord), 1 Mo. & B. 309 ; S. C, 6 0. & P. 249. In this case, an ex- chancellor, Lord BldoB, was esanained, among other witnesses, to prove the practice of the Covffit of Chancery, the case being tried before Lord Lyndhurst, ,0. B., who had himself been Lord Chan- cellor. See, also, Tucker v. Inman, 4 M. & a. 1049, 1063. In Doe d. Williams t. Lloyd (1 M. & G. eVl), the Court of Common Pleas, upon the authority of Worsley v. Filisker (2 Rol. Rep. 119), caused inquiry to be made by their own officers as to the practice in the Inrolment Office of the Court of Chancery, relative to tlie indorsement of the certificate of inrolment upon a deed. 1 M. & G. 685. (4) Van Sandau v. Turner, 6 Q. B. 713 ; In re Ramsden, 1 B. 0. Rep. 133. (5) Beaurain v. Scott, 3 Camp. 388 ; Tucker v. Inman, 4 M. & G. 1063. (6) See Moravia v. Sloper, WiUes, 37 ; R. v. Cambridge (University), Ld. Raym. 1334; Lane's Gase, 2 Rep. 16 b, a. d; Peacock v. Bell, 1 Saund. 75; Deane v. Robsou, M. &, M. 295; Eiider V. Edwards, 3 Scott K. R. 456. (7) Chitty V. Dendy, 3 A. & E. 319, 324. (8) Russell V. Dickson, 6 Bing. 442. (9) By Patteson, J., in R. v. Dolgelly Guardians, 8 A. & E. 568. (10) By Lord Mansfield, C. J., in Mostyn v. Fabrigas, 1 Cowp, 174 ; by Grose, X, in Collett v. Keith (Lord), 2 East, 273 ; by Lord Kenyon, C. J., in Ganer v. Lanesborough (Lady), Peake, 17 18. See, also, Henry V. Adey, 3 East, 221 ; Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 54; Sussex Peerage Case, 11 CI. & Fin. 114. As to the proof of foreign laws, vide post, Vol. II. See Code of N. T., § 426. (11) Male V. Roberts, 3 Esp. 163 ; Mure v. Kaye, 4 Taunt. 3i; Woodham r. Edwards, 5 A. & E. 771. As to the laws of Ireland; sae Beiguaott v. Mahon, 11 A. & B. 179; by Maule, J., in Reynolds v. Penton, 3 C. B. 191. (12) Wey V. Yalley, 6 Mod. 194. See, also, .1 Cowp. 174. 624 Of Matters Judicially Noticed. [CH. X. that the law of Ireland is the same as the law of this country, with regard to the commencement of a suit by a process.(l) Seals. It has already been seen that the courts will take judicial notice of the great and privy seals ;(2) there are also other seals of which they will take notice — some on account of the presumed notoriety of their official charac- ter — others, by the express enactments of the legislature. In the former class may be considered the seals of all the superior courts, (3) of the Counties Palatine, (4) of the High Court of Admiralty, (5) of the Ecclesiastical Courts.(6) Judicial notice is taken of the seal of the corporation of the city of Lon- don ;(7) but not of the seals of other corporations, (8) nor of the seals of inferior courts, unless when they are made admissible by statute ; nor of the seals of colonial or foreign courts ;(9) nor of the stamp affixed upon a judge's order by his clerk ;(10) nor of the seal of the sheriff.(ll) As instances falling within the second class, namely of seals which the legislature has required should be recognized, may be specified those of the CourtofBankruptcy,(12)ofthe Court for the Belief of InsolventDebtors,(13) (1) By Maule, J., in Reynolds v. Penton, 3 C. B. 191, explaining Ferguson v. Mahon, 11 A. & E. 179. The courts of a state do not take judicial notice of the statute laws of another state of the Union, at variance with the common law. Jones v. Saney, 2 Texas, 342 ; Holmes v. Broughton 10 "Wend. 15 ; Monroe v. Douglass, 1 Selden, 448 ; Bank of ChUlicothe v. Dodge, 8 Barb. 233_ The presumption is, that the common law prevails in a neighboring state until the contrary is proved. Averett v. Thompson, 15 Ala. 678. The court wiU assume the law of the foreign state to be the same as its own. Cox v. Morrow, 14 Ark. 603. The state court does not take notice of the rate of interest established in another state (Clarke v. Pratt, 20 Ala. 470) ; or of its statute law in any other respect. Holman v. Collins, 1 Carter (Ind.), 24. Such laws are to be proved as facta. Taylor v. Boardman, 25 Vt. 581. But see Hersohfeld v. Dexel, 12 Geo. 582 ; Same v. Harris, 16 Id. 217. The law merchant is to be taken notice of without proof (Jewell v. Centre, 25 Ala. 198) ; but the particular regulations of another state, such as the allowance of days of grace, may be proved. Bowen v. Newell, 3 Keman, 290. (2) Supra, p. 619. (3) Tooker v. Beaufort (Duke), Say. 297 ; Com. Dig. tit. Evidence, A, 2. (4) Oliver v. Guin, 2 Sid. 145, 146 ; S. C, Hardr. 118. (5) Green v. WaUer, Ld. Raym. 891, 893. (6) Id. ; Kempton v. Cross, Eep. temp. Hardw. 108. It may be proved, however, that the seal of the Ordinary has been forged. B. N. P. 247. See, also, Noell v. Wells, 1 Lev. 236. (7) Doe d. "Woodmass v. Mason, 1 Esp. 53. (8) Moises v. Thornton, 8 T. D. 307 ; Collins v. Carnegie, 1 A. & E. 695. See, also, Cooch v. Goodman, 2 Q. B. 580. (9) Henry v. Adey, 3 East, 221. See, also, Buchanan v. Eucker, 1 Camp. 63; S. C^ 9 Bast, 192. In the same manner the seals of our courts are required to be proved in the colonies. Clark v. Mullioh, 3 Moo. P. 0. R. 252, 280. (10) Barrett Navigation Company v. Shower, 8 Dowl. P. C. 173. (11) Bunbury v. Matthews, 1 Car. & K. 380. (12) 1 & 2 Wm. IV, c. 56, § 28 ; 2 & 3 Wm. IT, c. 114, § 9. (13) 5 & 6 Vict., 0. 116, § 11. See Doe d. Duncan v. Edwards, 9 A. & E. 664. SEC. I.] OfMoLtiers JvidkiaUy Noticed, 625 of the courts recently established for the recovery of small debts, (1) and of the court of the vice- warden of the Stannaries.(2) Judicial notice is likewise required to be taken of the respective seals of the Board of Poor Law Commissioners,(3) of the record of&ce,(4) of the general register offioe,(5) and of the office of the registrar of designs for articles of manufacturers) Almanac, See. With reference to other matters of public notoriety, the courts will take judicial notice of the almanac, the calendar being established by act of Parliament ;(7) they will, therefore, notice all feasts and fasts ;(8) the beginning and ending of the legal terms ;(9) the order of the months, and the number of days in each month ;(10) the correspondence of the days of the month with the days of the week,(ll) such as, what days fall upon Sundays,(12) Divisioii of kingdoms into counties. In like manner the courts will take judicial notice of the general divi- sion of the kingdom into counties, because process is directed to the sheriffs of these counties, and because they are mentioned in a great variety of acts of Parliament ;(13) but they will not take notice of the extent and boundaries of counties,(14:) nor of the local situation of different places in each county, nor of the distances of one county from another ;(15) nor of the divisions of a county(16) (unless, probably, where those divisions have been created by statute) ;(17) nor of the local situation of parishes ;(18) or of (1) 9 & 10 Vict, c. 95, §§ 3, hi, 111. (2) 6 i 7 "Wm. IV, c. 106, § 19. (3) 4 & 5 Wm. IV, c. 76, § 3. (4) 1 & 2 Viet, c. 94, § 13. (5) 6 & 7 Wm. IV, 0. 86, § 38. (6) 5 & 6 Vict., 0. 100, § 16 ; 6 & » Vict, c 65, §f 6, 7. (7) By Holt, C. J, in Brough v. Parkings, Ld. Eaym. 993 ; S. C, 6 Mod. 80. See 2 & 3 Edw. VI, c. 1 ; 5 i 6 Edw. VI, c 1. See, also, 24 Geo. II, o. 23, § 3. (8) Brough V. Parkings, vi supra ; 6 Vin. Abr. 492, pL 8 — 14. (9) 6 Vin. Abr. 490, pi. 32. See, also, Brasfleld v. Lee, Ld. Baym. 329. (10) Lang V. Gale, 1 M. 4 S. Ill; R. v. Brown, M. & M. 163. (11) 6 Vin. Abr. 492, pL 6—8 ; Page v. Faucet, Cro. Eliz. 227 ; Hany v. Broad, 2 Salk. 626 j Brough V. Parkings, ut supra. (12) Hoyle v. ComwaUis (Lord), 1 Stra. 387 ; Hanson v. Shackleton, 4 Dowl. P. C. 48. (13) By Bayley, J,, in Deybel's Case, 4 B. & A. 246. See, also, 2 Inst. 347. They will notice tihat a particular county is in England. R. v. Sharps, 8 0. & P. 436. So in New York (People v. Breese, 7 Cowen, 429 ; Chapman v. Wilber, 6 Hill, 475) ; and in the other states. Ham v. Ham, 39 Maine R. 263 ; Ross v, Austill, 2 CaL 183. (14) By Coleridge, J., in Bruno T. Thompson, 2 Q. B. 791. (15) By Best, J., in Deybel's Case, 4 B. & A. 248. (16) R. T. Bourn, Burr. Set. Ca. 42. (17) See 2 & 3 Wm. IV, c 64. (18) Anon., 1 Chitt. 31 a. But the courts will presume that a place in England is parochial, Vol. L 40 626 Oj Presumptive Evidence, [CH, X. any particular city, as, for instance, that Dublin is in Ireland ;(1) or that a particular town is within a certain diocese ;(2) or that a particular place is ■within a certain city, as that the Tower of London is within the city of London ;(3) or that a particular street is in a certain county ;(4) or even that a street is a thoroughfe,re, although the word " street" — via strata-^ •would rather imply a thoroughfare.(5) But the courts will take judicial notice of the extent of ports and of the river Thames.(6) In like manner they will take notice of the value of the coin of the realm,(7) and the various legal weights and measures ;(8) and also of the meaning of words in general use in the English language,(9) for which purpose, in a case of doubt, reference may be made to a dictionary.(lO) Finally, the courts will take judicial notice of events which, from the invariable course of nature, could not have happened otherwise ; as, for instance, where a husband had no access to his wife till within a fort- night of her delivery of a child, that he could not be the father of such child.(ll) SECTION IL Of Presumptions Made hy Courts and Juries. The chief part of the reported cases concerning presumptive evidence relates to presumptions of law. These are of two descriptions : First, unless the contrary appears. R. v. St. Margaret, 'Westminster, 7 Q> B. 569. In Harris v. Cook (8 Taunt. 539), upon a question of variance as to the name of the pariah of St. George, Blooms- bury, Burrough, J., observed; "The court cannot know whether there be not more than one St. George." (1) Kearney v. King, 2 B. & A. 301 ; S. C, 1 Chitt. 28, 32. (2) R. V. Simpson, Ld. Raym. 1379. (3) Brune v. Thompson, 2 Q. B. 789. (4) Humphreys v. Budd, 9 Dowl. P. C. 1000. (5) By Tindal, C. J., in Grant v. Moser, 5 M. & G. 129. (6) Rouse V. Bardin, 1 H. Bl. 351, 357 ; Anon., 1 Chitt. 31 a. See, riso, Faaakerly v. ■Wilt- shire, 1 Stra. 469. (7) See Kearney v. King, 2 B. & A. 301. (8) 1 Rol. Abr. 525; Hoskin v. Cooke, 4 T. R. 314. (9) Storaoe v. Longman, 1 1 East, 245, n. ; Hime v. Dale, 1 Camp. 27, n. ; S. 0., 11 East, 244, n. ; Clementi v. Golding, 1 Camp. 25 ; S C, 11 East, 244, as to the word "book;" R. v. 'Wood'wiMiA 1 Moo. 0. C. 323, as to the word " pulse " in the stat. 7 & 8 Geo. I'V, o. 30, § 17 ; R. y. Swat- kins, 4 C. ifc P. 548, as to the words " corn or grain " in tlie same statute. See, also, R. v. Beaney Ry. & R. 416. (10) Storace v. Longman, ui awpra. Where a word has acquired » peculiar meauing ia a particular locality, or among a certain class of persons, evidence of that meaning must be given in the usual manner. See Shore v. WU-ion, 9 CI. & Fin. 525, and that class of cases referred to, post, Vol. II. (11) By Lord Bllenborough, 0. J., in R. v. Lnffn. R EMt. 201. 202, SEC. II.] And of Presumptions. 627 where the presumption is so conclusive in its nature (as a rule of law) as to be capable of being withdrawn altogether from the consideration of a jury, and which, if successive juries were to disregard it, would be en* forced by granting as many new trials, the presumption being as obliga- tory upon juries as upon the court. Secondly, where the presumption is not so conclusive in its nature, yet having received judicial sanction, ought to be adopted by a jury, and which, if not adopted, might be a ground for a new trial. Lord Stowell has observed, that when a criminal fact is ascertained, pre- sumptive proof may be taken to show who did it, in order to fix the crim- inal, there being an actual corpus delicti ; but that to take presumptions, in order to swell an equivocal and ambiguous fact into a criminal fact, is an entire misapplication of the doctrine of presumptions.(l) However, on proper occasions, the same learned judge was accustomed to resort to pre- sumptive evidence for the purpose of testing the truth of positive testi- mony, especially to that presumption which arises from the conduct of the parties at the time of a transaction — the evidentia rei, as he used to call it — which will generally be found to lead to a conclusion incompatible with direct testimony, where such testimony is invented or exaggerated.(2) Where it appears that on one side there has been forgery or fraud in some material parts of the evidence, and they are discovered to be the con- trivance of a party to the proceeding, it affords a presumption against the whole of the evidence on that side of the question, and has the effect of gaining a more ready admission to the evidence of the other party.(3) "With respect to the comparative weight due to direct and presumptive evidence, it has been said that proof by circumstances is in many cases of greater force and more to be depended on than direct proof; inasmuch as witnesses speaking directly to a fact may be mistaken themselves, or may intend to deceive others, whereas circumstances and presumptions, natu- rally and necessarily arising out of a given fact, cannot lie.(4) It may be remarked also, that circumstantial evidence is generally composed of a more extensive and comprehensive assemblage of facts under the cogni- zance of a jury, and requires, therefore, a greater number of witnesses than (1) In Evans v. Evana, 1 Hagg, Cons. Rep. 105. And see the obserrations of Abbott, C. J., in R. V. Burdett, 4 B. & A. 161, as to tlie proof of the corpus deUeli. (2) Evans v. Evans, 1 Hagg. Cone. Eep. 105, 112. See Lord Stowell's observations on the oSrcumstantial evidence leading to the presumption of the fact of adultery, which, he observes, is rarely proved by direct testimony, loveden v. Loveden, 2 Hagg. Oons. Rep. 2 ; Cadogan v. Cadogan, Id. 4, n. ; Chambers v. Chambers, 1 Id. 444 ; Williams v. Williams, Id, .294 ; Elwes v. Elwes, Id. 2*77 ; Hammerton v. Hammerton, 2 Hagg. Eo. E. S. (Z) See Mr. A. Stuarfe Letters to Lord Mansfleld, upon the Douglas case. (4) See Annesly v. Anglesea (Lord), 11 How. St, Tr. 1430. It was there said the presump- tions in that case, arising from kidnapping and the prosecution for murder, were stronger than the evidence of a thousand witnesses. 628 Of Presumptive Evidence, [CH. X. where fhe evidence is direct, whereby it is more capable of being disproved if untrue. (1) On the other hand, it may be observed, circumstantial evidence ought to be acted on with great caution, especially where an anxiety is naturally felt for the detection of great crimes ; this anxiety often leads witnesses to mistake or exaggerate facts, and juries to draw rash inferences. Not un- frequently a presumption is formed from circumstances which would not have been noticed as a ground of crimination, but for the accusation itself: such are, the conduct, demeanor and expressions of a suspected person, when scrutinized by those who suspect him.(2) And again, any circumstantial evidence which comes through the medium of witnesses, may, no less than direct evidence, be discolored, exaggerated, or perverted. Kinds of presumption. The first species of presumption may be again divided into two kinds, first, when the presumption admits of no proof to the contrary, and secondly, where it only affords a prima facie inference, which is conclusive only in the absence of proof to the contrary. In the history of the law, several presumptions which were at one time deemed conclusive by the courts, have, by the opinions of later judges acting upon more enlarged principles, become conclusive only in the ab- sence of proof to the contrary, or have been treated as wholly within the discretion of juries. In modern times,, many presumptions have been es- tablished, which convenience or general experience have dictated, and which are binding upon juries, until they are rebutted. Several presump- tions of this nature have been created by the courts ; others have been made by act of Parliament, and this principally in cases of revenue and penal statutes.(3) With respect to those presumptions of law, which are not considered imperative upon juries, the occasions upon which judges have afforded their sanction and authority to them, have been various. In some cases, it has been said, a jury ought to have drawn a particular inference which they have not drawn, and a new trial has consequently been granted. In (1) See Bentham's observations on the probative force of circumstantial evidence. Rationale of Judicial Evidence, Tol. 3, p. 251. (2) Of the suspicious conduct sometimes exhibited by innocent persona under accusation of Clime, a remarkable instance is mentioned by Lord Hale, in his Pleas of the Crown, Vol. 2, p. 290. On the dangers of circumstantial proof, see Defence of Donellan, published by his solicitorsi A. D. 1781. On the general subject of presumptive evidence, see 1 How'. St. Tr. 1629, n. ; 14 Id. 1229, 1230, 1246; 17 Id. 1341, 1430; 33 Id. 606; Burnet Crim. Law Soot.; Harris's Grim. Law Soot. ; Paley Mor. Phil. ; Evans's Appendix to Pothier, 339 ; Bentham's Rationale of Judi- cial Evidence, Vol. B, which contains many valuable suggestions on this subject. (3) A remarkable example of a statutory presumption was that which was founded on a con- cealment of birth, by the repealed statute of 21 Jao. I, c. 27. See Ashford v. Thornton, 1 B. & A. 40E ; where the nature of those presumptions is considered which were deemed sufficient to support a counter plea to the wager of battle. SEC. II.] And of Presumptions. 629 others, the court has observed, that a jury or inferior court have not im- properly acted upon a particular presumption, and that therefore the de- cision ought not to be interfered with. It has not unfrequently happened, that the same presumption has been spoken of by some judges, as a rule of law ; whilst by others it has been treated merely as fit to be recommended to a jury, or as one which a jury might properly make. Though the pre- sumptions under consideration are strictly within the province of a jury, the language of courts expressed in regard to particular presumptions may, in general, be expected to have considerable influence in the deter- mination of future cases, whether by a court or a jury, in which the like presumption may arise. The presumption of prescriptive rights or of obligations from modern user, is seldom warranted in point of fact, or really entertained by juries. It is, however, unusual for a judge to leave the presumption to a jury, in cases where modern user is uncontradicted, as one which it is competent for them to make ; the jury is generally instructed, that they ought to make the presumption.(l) In a case respecting the seaworthiness of a ship, the Court of Common Pleas were equally divided upon the question, whether a second new trial should be granted on the ground that the jury had found their verdict in direct opposition to the presumption of unseaworthiness arising from the ship having become distressed recently after sailing, without any adequate cause ; a presumption which had been sanctioned by great legal authori- ties, and been even called a rule of law. (2) Presumptions arising from age. It seems to be a presumption not admitting of proof to the contrary, that a person under the age of fourteen is unable to commit the crime of rape; (3) and also, that an infant under the age of seven years cannot be (1) See Jenkins v. Harvey, 1 C, M. & R. 894 ; where Parke, B., and Alderson, B., intimated that it was improper for a judge to leave the presumption to a jury in such cases, and that they should be instructed that they ought to make the presumption. The usage had existed for more than seventy years. It was asked by the court, if juries were at liberty to make the presumption or not, at their discretion, what would become of moduses ? In R. v. Joliffe (2 B. & C. 54), Lord Tenterden, C. J., speaks of modern user as affording cogent evidence of prescription ; and he ob- serves that it is fit to recommend a jury to make the presumption. In that case the usage had existed only for twenty years. In Brune v. Thompson (4 Q. B. 543, 552), Lord Denman, 0. J. spoke of the doctrine held in Jenkins v. Harvey as being not altogether satisfaotory, and said that any person affected by it ought to have an opportunity of tendering a bill of exceptions. See also. Page v. Hatchett, 8 Q. B. 593. (2) Foster v. Steele, 3 N. C. 892. See Douglass v. Scougal, 4 Dow, 269 ; Parker v. Potts, 3 Id. 23; Watson v. Clark, 1 Id. 344; Munro v. Tandam, 1 Park Ins. 469. (3) 1 Hale P. C. 630 ; 1 Russ., C. & M. 6'76 ; R. v. Groombridge, Y C. & P. 582, where it was held that the presumption was not affected by the statute 9 Geo. IV, u. 31 ; R. v. Jordan, 9 0. & P. 118. Nor can a boy under that age be convicted ot an assault with intent to commit a rape. R. v. Eldershaw, 3 C. & P. 396 ; R. v. Philips, 8 C. & P. tSS. But he may be a principal in the second degree. 1 Hale, ut supra; R. v. Brimilow, 9 0. & P. 366 ; S. C, 2 Moo. C. 0. 122. 630 Of Presumptive Evidence, [CH. X. guilty of felony.(l) It was formerly considered a prima facie presumption of law, tliat a person under tlie age of fourteen was not guilty of a felo- nious intention, until evidence was produced to show that he was doli ca- pax ; for then, it was said, malitia supplet cetatem :{2) but this presumption appears, in a great measure, to be inferentially put an end to, by the recent act for the more speedy trial and punishment of juvenile offenders,(3) which gives a summary power to justices to convict persons not exceeding fourteen years of age of certain felonies. Presumptions as to legitimacy. If a child be born after the marriage of the mother, and during the husband's life, it is presumed to be legitimate. It was formerly an estab- lished doctrine of the courts, that this presumption in favor of legitimacy could not be rebutted, unless the husband was incapable of procreation, as from impotency or old age, or was absent beyond the four seas during the whole period of the wife's pregnancy.(4) This doctrine was not, how- ever, conformable to the more ancient legal authorities.(5) And in later times it came to be established, that the presumption, in favor of the legiti- macy of the child of a married woman, might be rebutted, if it were shown that the husband had not opportunity for sexual intercourse within such a period of time before the birth of the child, as would admit of his having been the father : and, in the present day, even where a husband and wife have had opportunities for sexual intercourse, at a time when the husband might have become the father of the child, a court or jury are at liberty to infer, from the circumstances of the case, that no sexual intercourse took place.(6) But where a jury believe that sexual intercourse took place between husband and wife, at a time when it might have led to the conception of the child whose legitimacy is disputed, it would seem that they ought not to find the child a ba3tard.(7) If, however, there was an (1) 1 Hale p. C. 27 ; 4 Bl. Com. 23. (2) 1 Hale P. C. 3 ; 1 Russ., 0. & M. 1—6 ; R. v. Owen, 4 C. & P. 236. imd see R. v. Sut- ton, 3 A. & E. 597, 612, as to misdemeanors. (3) 10 & 11 Viet. o. 82. (4) Co. Litt. 244 a ; R. v. AlbBrton, 1 Lord Ray. 395 ; R. v. Murray, 1 Salk. 121. (5) See them collected in Le Merchant's Preface to the Gardiner Peerage Case. (6) Pendrell v. Pendrell, 2 Str. 925 ; R. t. Reading, Rep. temp. Hard. 82 ; R. v. Luife, 8 East, 193 ; Banbury and Gardiner Peerage Cases, Le Merchant's ed., App., n. B j S. C, 2 Selw. N. P. '759, '760 ; 1 Sim. & Stu. 153 ; Cope v. Cope, 1 Moo. & R. 269, 2'76 ; S. C, 5 C. & P. 604 ; Moriis V. Davies, 3 C. & P. 215, 42'7 ; S. C, 5 CI. & Fin. 163 ; Goodright v. Saul, 4 T. R 356. Note 182. — ^The American cases and authorities -will be found substantially to accord with the English, without furnishing much additional matter for illustration. State v. Pettaway, 3 Hawks, 623 ; Commonwealth v. Shepherd, 6 Binn. 283 ; Tate v. Penne, t Mart. Lou. Rep. (N. S.) 548 . Cross V. Cross, S Paige, 139 ; Commonwealth v. "Wentz, 1 Ashm. 269 ; 1 Beck's Med. Jurispn eh. 9 ; Johnson's Legatee v. Johnson's Executor, 1 Dessauss. Eq. Rep. 595 j Vaughanv. Rhodes, 2 M'Oord, 227. (7) Cope V. Cope, vt supra. In tbo report in 5 C. & P. 604, Alderson, B., is stated to have said, " If the husband and wiffe are living separate, and the wife is notoriously living iu open SEC. II.] And of Presumptions. , 631 opportunity of access, though the wife was notoriously living in adultery, it does not necessarily follow that the child is not legitimate.(l) Children born during a divorce a mensa et thoro, are presumed to be illegitiniate.(2) Presumptions as to marriage. "' The fact of marriage is generally considered as sufficiently proved by evidence of cohabitation, or eveu by general reputation.(3) Even where a marriage between parties is proved to have been illegal, it may be compe- tent for a jury to presume, from the circumstances of the case, where the parties have cohabited as man and wife, that a subsequent valid marriage has taken place.(4) But in actions for adultery, and on indictments for bigamy, an actual and valid marriage must be proved.(5) The reason why such strict proof is required in these instances, is in consequence of their penal nature, and because in cases of alleged adultery, the action might be turned to bad purposes, if persons could give the name of wife to a woman to whom they were not married.(6) It is not sufficient prima facie evidence to show that the alleged husband and wife went through a religious ceremony, with the bona fide intention of thereby contracting a valid marriage, and afterwards lived together as man and wife in the belief that they had thereby con- adultety, although the husband have an opportunity of access, it would be monstrous to suppose that, under these circumstances, he would avail himself of such opportunity. The legitimacy of a child bom under such circumstances could, therefore, not be established." But in 1 Moo. & R. 275, the words are reported thus ; " Even where the husband is shown to have had these opportunities of access, and was not impotent, still this presumption also (of sexual intercourse) may be rebutted ; as where the wife is living in open and notorious adultery, and the husband on one single occasion only had opportunity of access to her, and then at a time, and under cir- cumstances rendering it extremely improbable that he availed himself of the opportunity, these facts might, perhaps, be urged as a reasonable ground for concluding that sexual intercourse did not take place." See this case commented on in E. v. Mansfield, 1 Q. B. 444, 450, 451. See further, Head v. Head, 1 Sim. k Stu. 152 ; S. C , 1 Turn. 139. It has been said, that if a man marries a woman visibly pregnant, it is a conclusive inference of law that the child is legitimate. As to the existence of any presumption respecting the length of the period of gestation) see the evidence in the Gardiner Peerage Case. Harg. Co. Litt. 123 b, n. 1 and 2 ; Alsop v. Bowtrell, Cro. Jac 541. As to the presumption, when a widow marries again, and has a child within nine months, Harg. Co. Litt. 8 a, n. 7. (1) By Lord Denman, C. J., in R. v. Mansfield, 1 Q. B. 444. (2) St. George v. St. Margaret, 1 Salk. 123. • (3) Doe d. Fleming v. Fleming, 4 Bing. 266 ; Reed v. Prosser, Peake, 233. See, also, Sayer V. Glossop, 2 C. & K. 694. (4) "Wilkinson v. Payne, 4 T. R. 468. (As to the effect of an illegal marriage, as where the wife married again, supposing her husband dead, see Williamson v. Williamson, 1 Johns. Oh. 488. (5) Morris v. Miller, 4 Burr. 2057 ; S. C, 1 W. Bl. 632 ; R. v. Allison, R. & R. 109. See, also, Scrimshire v. Scrimshire, 2 Hagg. Cons. R. 395, 401; Middleton v. Jauverin, Id. 437 ; Kent v. Burgess, 11 Sim. 376; R. v. Simmons, 1 C. & K. 174 ; Willmett v. Harmer, 8 C. & P. 695, upon a plea of justification to a libel charging the plaintiff with " polygamy." (6) By Lord Mansfield, 0. J., in Birt v. Barlow, 1 Doug. 171, 174. 632 , Of Presumptive Evidence, [CH. X. tracted a valid marriage, if in law such marriage was not valid.(l) But it seems that proof of a marriage having been celebrated, by a person who was present, is sufficient, without proving expressly the reading of the service.(2) As to intention. There is a general presumption in criminal matters, that a person intends whatever is the natural and probable consequence of his own actions.(S) "Where a prosecutor, on an indictment for forging a receipt with intent t© defraud him, swore that he believed the prisoner had no such intent, the judge directed the jury, that the defrauding, being the necessary effect and consequence of the forgery, was sufficient evidence of the intent of the prisoner to warrant them in convieting.(4:) Presumption of malice. It seems to be clearly a presumption of law, which ought not to be left to the discretion of the jury, that where an act is done by one person inju- rious to another, malice (that is, an attempt to injure) is prima facie to be presumed in the person doing the act. A new trial has been granted, because a judge left it to the jury to say, whether a defendant intended to injure the plaintiff by the publication of a libel, the court determining that the law would presume the intention.(5) Where a communication is prima facie privileged, and therefore not libelous (as, an answer to an in- quiry as to the character of a servant), yet if the plaintiff can show that such communication was untrue, and known to be so by the person mak- ing it, it will raise the presumption of malice.(6) In actions for malicious prosecutions, and the like, malice may be presumed from want of proba- (1) Catherwood t. Caslon, 13 M. & W. 261. (2) Hemmings v. Smith, 4 Doug. 33. (At common law, no ceremony is necessary, nor is it generally required in tliis eonntry. Starr v. Peck, 1 Hill, 270. See Cheney v. Arnold, 15 N. T. Rep. 345). (3) See R. T. Diion, 3 M. & S. 15 ; E. v. Hunt, 1 Moo. C. C. 93 ; E. v. Beard, 8 C. & P. 148 ; E. T. Hill, Id. 276 ; R. v. Cooke, Id. 582 ; E. v. Farrington, E. & E. 201 ; E. v. Philp, 1 Moo. C. C. 263; R. T. Lovett, 9 C. & P. 462. (So, in a civil action, aa where the holder of a mortgage sues the mortgagor or purchaser of the premises for -waste, the law imputes the design to injure, where the acts of a party necessarily tend to the injury of another. Van Pelt v. M'Graw, 4 Const. 110.) (4) R. T. Sheppard, E. & E. 169. The judges held the conviction to he right. See, also, R. vl Mazagora, Id. 291. (5) Haire v. WUson, 9 B. & C. 643. See, also, Fisher t. Clement, 10 B. & C. 415 ; Baylis v. Lawrence, 11 A. & E. 925 ; E. v. Shipley, 4 Doug. 13, 111. The plaintiff may, however, prove malice in fact, with a view to the damages. Pearson v. Lemaitre, 5 M. & G. 100. As to proof thereof, see Edgell v. Francis, 1 M. & G. 222. The distinction between malice in fact and in law is explained by Bayley, J., in Bromage v. Prosser, 4 B. & C. 253. (6) Fountain v. Boodle, 3 Q. B. 6. (Malice is presumed fl-om the publication of a libel, but the defendant may show that there was no actual malice or intention to injure in the publication. Taylor v. Church, 4 Selden R. 452.) SEC. 11.] And of Presumptions. ■ble cause :(1) but the want of probable cause is only presumptive evidence of malice, and ought not to be left to the jury as conclusive.(2) In like manner, if a party knowingly makes a false representation, whereby injury comes to another, the law will presume malice, whatever his real motives may have been.(3) Sir M. Foster observes, that in every charge of mur- der, the fact of killing being first proved, all the circumstances of accident, necessity or infirmity are to be satisfactorily established by the prisoner, ■ unless they arise out of the evidence, produced against him ; for the law presumes the fact to be founded in malice, unless the contrary appears.(4) Of negligence. Where any peculiar obligation is cast upon a person to take care of goods intrusted to his chargfe, if they are lost or damaged while in his cus- tody, the presumption is, that the loss or damage was occasioned by the negligence, that is, the want of care, of himself or of his servants. This presumption will arise with regard to goods lost or injured, which had been deposited in a public inn,(5) or which had been intrusted to a com- mon carrier.(6) But such presumption in all such cases is only prima, fade, and may be rebutted.(7) Tarioua presumptions. Where a libel is sold at a bookseller's shop by his servant, the sale is said to be presumptive evidence of a publication by the master. This is stated to be upon a ground of policy, lest irresponsible persons should be put forward, and the person who really produces the publication, and without whom it could not be published, should escape.(8) But the evi- (1) Bbrley v. Bethune, 5 Taunt. 583. See further, Turner v. Turner, Gow, 20 ; Brooks v. TVarwicl£, 2 Stark. E. 389 ; Cozer v. Pilling, 4 B. & C. 26. (2) Mitchell v. Jenkins, 5 B. & Ad. 588. And see Hounsfleld v. Drury, 11 A. & E. 98. (In such actions, the plaintiff must prove want of probable cause and malice in fact. Bulkley V. Smith, 2 Duer (N. T. Sup. Ct.), 261.) (3) Tapp T. Lee, 3 B. & B. 371 ; Foster v. Charles, 6 Bing. 396 ; 1 Id. 105 ; Pontifex v. Big- nold, 3 M. & G. 63. (The intention to deceive and defraud must be alleged and proved ; but the falsehood uttered iu the recommendation is sufficient proof of that intention. Allen t. Addington, T "Wend. 9 ; S. C, 11 Id. 314 ; "Williams v. "Wood, 14 Id. 126.) (4) Fost. Disc. 256, 257. See, also, 1 Hale P. C. 455 ; 1 East P. C. 340 ; 3 M. & S. 15 ; E. & E. C. C. 169, 207, 291. See, also, The People v. McLeod, 1 Hill E. 3tT; Shorter v. The People, 2 Comst. 193; 4' Barb. 460. (5) Dawson v. Chamney, 5 Q. B. 164. And see Eichmond v. Smith, 8 B. & 0. 9 ; Calye's Case, 8 Eep. 32. McDonald v. Bdgerton, 5 Barb. 560, 564 ; Hill v. Owen, 5 BlackC (Ind.) 323. (6) Coggs V. Barnard, 2 Lord Eaym. 918. Day V. Riddley, 16 Vt. 48. (T) See Dawson v. Chamney, vi sv^ra. (8) E. V. Gutch, M. & M. 433. And see Harding v. Greening, 8 Taunt. 42 ; E. T. Almon, 5 Burr. 2686. As to newspapers, see E. v. "Walter, 3 Esp. 21. And see further, aa to the evidence of publication of a libel, E. v. Lovett, 9 0. & P. 462. 634 Of Presumptive Evidence, [CH. x. denoe is not conclusive, and under tlie plea of " not guilty" the master may still prcxve that the publication took place " without his authority, consent or knowledge," and that there was " no want of care or caution on his part."(l) In like manner a baker, who sells bread containing an ingredient which renders it noxious, is responsible for the offence, if he ordered the ingre- dient to be introduced into the bread, although he gave directions for mixing it up in a manner which would have rendered it harmless.(2) So upon an indictment against the directors of a gas company for a nuisance, it has been ruled, that the defendants were answerable for acts done by their superintendent and engineer, under a general authority to manage the works, though they were personally ignorant of the particular plan adopted, and though such plan were a departure from the original and understood method, which the directors had no reason to suppose was dis- continued.(3) Lord Denman, 0. J., there laid down the rule in very broad terms : " It is said that the directors were iguorant of what had been done. In my judgment that makes no difference ; provided they gave authority to (the superintendent)(4) to conduct the works, they will be answerable. It seems to me both common sense and law, that, if persons, for their own advantage, employ servants to conduct works, they must be answerable for what is done by those servants."(5) On indictments for larceny, proof that part of the stolen goods have been found upon the person of the prisoner, or in his house or possession, is presumptive evidence against him of his having stolen them, so as to call upon him for his defence, and may be suf&cient to warrant a conviction if no facts appear in evidence to repel that presumption. (6) The goods are (1) See 6 & 7 Vict, o. 96, § 1. (2) E. V. Dixon, 4 Camp. 12 ; S. C, 3 M. & S. 11. See Att. Gl-en. v. Riddle, 2 C. & J. 493. (3) R. V. Medley, 6 C. & P. 292. (4) The Buperintenderit was one of the defendants indicted. (5) 6 C. & P. 297. The principle stated In the text does not apply in the case of a sub-contractor. Edwards on Bailments, 317, and cases there cited. (6) See 2 & 3 Vict., c. 71, § 24, as to the power vested in the metropolitan magistrates to deal Xrith such cases summarily as a misdemeanor. Note 183. — The rule laid down in the text, that proof of a larceny committed, and soon after finding the stolen goods in possession of the prisoner, shall be received tss prima facie evidence of his guilt, is so familiar in all its various applications and qualifications, that our author has deemed it unnecessary to cite authorities. Should the student feel desirous to look farther, he will find at least the general rule so well established as to be taken for granted, or used rather by way of illustration, than aa requiring any reported case to sustain it. 2 Hal. P. C. 289 ; Russ. on Or. 1154 ; 4 Stark. Ev. 840. Other English authorities hereinafter cited. Pennsylvania v. Myers, Add. 320, 321; State v. Jenkins, 2 Tyl. 377, 379; State v. Bennett, 2 Const. Rep. 692 ; State of Connecticut v. Weston, 9 Conn. Rep. 527, 529. Other American authorities, infra. But it is always desirable to be well and particularly advised, not only of the condition prece- dent whioh lets in the n»le, but the time and nature of the prisoner's possession j and how the jprima facie evidence may be sustained and repelled after it kaa arisen. SEC. II.] And of Presumptions. 6S5 1 . In all oases, but especially in this, the larceny itself must be proved (Boss, on Cr. T153 ; pe' Colden, Mayor, 3 C. H. Eeo. 138) by the best evidence the nature of the case admits. Murray's Case, before Riker, Becorder, N. Y. Gen. Sess., Oct. 1821, 6 0. H. Reo. 65, 66. This should be by the testimony of the owner himself, if the property was taken from his immediate possession, or if from the actual possession of another, though a mere servant or child of the owner, that other must be sworn, so that it may appear that the immediate possession was violated, and this, too, without the consent of the person holding it. Id. Where non-consent is an essential ingredient in the ofifence, as it is here, direct proof alone, from the person whose non-consent is necessary, can satisfy the rule. Tou are put to prove a negative ; and the very person who can swear directly to the necessary negative must, if possible, always be produced. Rex v. Rogers, 2 Campb. 654; Williams v. The East India Co., 3 East, 192, 201 ; S. 0., post. Other and inferior proof cannot be resorted to, tiU it be impossible to procure this best evidence. If one person be dead who can swear directly to the negative, and another be living who can yet swear to the same thing, he must be produced. In such cases, mere presumptive, prima facie or ou-cumstantial evidence, is secondary in degree, and cannot be used tiU all the sources of direct evidence are ex- hausted. Williams v. The East India Company, swpra. And see post, note. Indeed, the rule is general. Tou shall not be permitted to grope in the twilight of circumstantial evidence, when the broad daylight of direct and positive proof is attainable. A strong ease to this effect occurred in a court to which we are much indebted for manifold and various iUustra- tione in the different branches of our criminal law. On a charge of stealing a watch from a lodger (one Dimmicli), the watch was positively sworn to as belonging to Dimmick ; and was then traced to the prisoner's possession directly after they had lodged together in the same bed. The prisoner had left it in care of one H. E. On being arrested, he told the officer that he had given the watch to the right owner ; but, on their way to the pohee office, he offered money to the constable, if he would permit him to escape ; and, after they had arrived, attempted to escape forcibly. Dinunick had been heard, the very morning ftfter the prisoner had lodged with him, to complain that the prisoner had stolen the watch. The prisoner led the police officer to different parts of the city in search of the watch, and finally to the house of H. P., where it was found. It appeared, also, that he had sought to bribe Dimmick not to appear against him ; and his character turned out to be infamous, even from the very wit- nesses whom he produced in its support. But Dimmick had left the place on necessary business ; and was not produced. Colden, Mayor, stopped the case, therefore, and directed an acquittal. He said Dimmick was the only person who could positively swear that the watch was stolen. Sometimes the owner could not be produced ; and other evidence was necessary : but where circumstances were resorted to, in order to establish the felony, they must be such as are recon. cilable only with the guilt, and are wholly inconsistent with the innocence of the prisoner. Bte might in this case have done the acts imputed, in order to avoid the odium of a public prosecu- tion. N. T. Gen. Sess., Sept. 1818 ; Plunket's Case, 3 0. H. Eec. 137, 138. " Not that it is absoluiel/y necessary, for the purpose of proving that the goods were stolen, to produce the owner ; for cases frequently occur where such proof cannot be obtained." Per Colden, Mayor, in Plunket's Case, ui supra. Thus, where the owner died before the trial, bis land steward's oath was received, with other circumstances usually attending a larceny, from which the jury inferred the non-consent of the owner. Rex v. Hazy, 2 Oar. & Payne, 458. But where several persons are owners, or bailees, &o., the rule would probably not be so strict as to require the oath of aU. On trial of an indictment for obtaining goods on pretence that the prisoner had been sent for them by Titus & Townsend, the owners, Townsend swore that he did not send the prisoner for them ; and he thought his partner was absent at the time, but could not say cer- tainly. The goods not having been delivered to T. & T., this was held to cast the onus of show- ing consent on the prisoner. The People v. TUton, before Riker, Recorder, N. T. Gen. Sess., Jaa. 1823, 2 Wheel. Cr. Caa 251, 252. And the rule has lately been relaxed in favor of tie king, who had his deer stolen from his forest ; and the Prince of Saxe Coburgh, whose fish were stolen from a pond in his park ; and one John Greenwood, a Quaker, whose fish had also been stolen from a pond in his yard. The respective agents of these several persons who had the management of the above respective properties were sworn, and their oaths, with the circumstances of the larcenies, held sufficient by the twelve judges. The particular ground of this departure from the general rule is not stated ; 636 Of Presumptive Evidence, [CH. X. but wag probably because the king and prince must have been presumed never to trouble them- selves with giving or withholding consent in so small a matter. Swearing them would have been an idle form. Greenwood being a Quaker, could not be affirmed [amle), and would not swear ; and so, on the whole, the best available evidence was received. Eex v. AUen, By. & Mood. Or. Cas. 154, 155. The court, doubtless, took judicial notice of that dignity and elevation of character and employment which disqualify kings and princes to give any information concern- ing a matter so minute ; while the conscientious scruples of the Quaker worked a disability equally permanent. It was much like the case of an attesting witness, who resides without the jurisdiction of the court, which lets in, as we shall see hereafter, secondary proof to establish the document ; whereas Dimmick, in Plunket's case (supra), was a resident of the state ; whose disability, from absence, was temporary. Prisoners must still .submit to farther delay on bail or confinement, as the case may require, where there is an unavoidable failure to bring forward the essential prosecuting witness from a temporary cause, until this can be removed. Commonwealth V. Carter, 11 Pick. %11. 2. Due proof of non-consent, with the fact that the property is missing, having made out that a larceny has, in the abstract, been committed, the next step is to fix it on the prisoner ; and the act of taking being generally perpetrated in secret, the possessor is, therefore, sought for by those interested, or by an officer with his proper search warrant. The goods being soon after found, either on the prisoner's person or in his house, &c., he is, prima facie, deemed guilty. Here, however, we must attend to several things ; and first, of the time. Hale says, if the goods be found with the person the day of the theft being committed, this is a strong presumption ; and yet, even in such a case, C, a very subtle horse thief, being pursued, procured B. to lead the horse, under pretence that he (C.) was pressed to go aside; thus escaping, and leaving the pre- sumption to fall on B., who was, though tried before a very learned and wary judge, condemned and executed. 2 Hal. P. C. 289. It is agreed, therefore, that where you rely on simple posses- sion, the interval between the time of the taking and finding should be short. Eex v. , 2 Carr. & Payne, 459 ; Rex v. Adams, 3 Carr. &, Payne, 600. "Where sixteen months had elapsed, Bayley, J., directed an acquittal (Rex v. , 2 Carr. & Payne, 459) ; and afterwards, where three months had elapsed. Rex v. Adams, 3 Carr. & Payne, 600. The reason for desiring a short time is, that otherwise the goods may have changed hands often ; or the difficulty of the prisoner be rendered greater, in accounting for the manner of obtaining them ; or their identity may be rendered more doubtful. But aU these considerations depend much on the nature of the property. 2 East's P. C. 656; 4 Stark. Ev. 841. Light, pocket articles, or those which are portable in a small compass, especially if they be common or cheap, would of course be purchased, or received with less probability of the transaction coming under the observation of others who pould be witnesses, than ponderous, large, rare, curious or expensive things. A horse being stolen on the 10th, and found on the 16th of the same month, at sixty miles distance from the place of taking, in the prisoner's possession ; this was holden to raise the presumption. State v. Adams, 1 Hayw. 463. So where notes were mailed the IVth April, possession of them by one employed in the post-office on the 21st, was held evidence of secreting the letter, under the stat. t G. Ill, o. 50. 4 Stark. Ev. 841. And in another case two months were held not to rebut the presumption. State v. Bennett, 2 Const. Rep. 692. But note: there were concealment and other circumstances in this case. In State v. Adams {siqira), the prisoner gave an improbable account; and in the case, 4 Stark. 841, the man was employed in the very office where the money was deposited. See and note the next paragraph, infra. But possession of the goods is always competent evidence, be the time longer or shorter • however insufficient it may be, per se, after a considerable lapse of time. In such a case some circumstances additional to the possession, are -necessary to raiso the presumption, which may be the prisoner's conduct or language before or after the larceny ; or his proximity to the time and place of the taking. 2 East's P. C. 655 ; Russ. on Or. 1154. Among these are false or improbable representations, to account for the possession. Armistead's Case, 1 Ch. Rec. 1'74, before Riker, Recorder, 4 Stark. Ev. 841 ; Ball's Case, 4 0. IT. Rec. 16'r, 158, before Riker, Recorder. As where he said he had purchased the horse at E., when there was not time to have done tliat and reached the place where the horse was found with him. State v. Adams, 1 Hayw. 464. So the prisoner's readiness or unwillingness to meet the charge, may be considered (4 Stark. Ev. 841) ; his selling the article for an inferior price. Pennsylvania v. Myers, Addis. 320, 321 ; SEC. II.] And of Presumptions. 637 Armistead's Case, 1 C. H. Eeo. 114, before Riker, Beoorder. So the prisoner first consenting to a search by a police officer; then questioning his authority; first saying she was a widow; then that she had a husband ; first saying she bought the property at P., a distant city ; then that it was brought to her house by A., an insolvent, to conceal it from his creditors. Riley's Cases, N. T, Gen. Sess. before Radoliff Mayor, Feb. 1816, 1 C. H. Rec. 23. So where the prisoner secretes the property. State v. Bennett, 2 Const. Rep. 692; Rex v. 'Watson, 2 Stark. Rep. 137. Secondly, as to place. No doubt, as suggested in the text, a finding at the prisoner's house, is equally competent in evidence as a finding upon his person. In Rex v. Watson (2 Stark. Rep. 139), Abbott, J., observed, that an assize had scarcely ever occurred, where it did not happen that a part of the evidence against the prisoner consisted of proof that the stolen property was found in the house after his apprehension. So it may be shown that the goods were found where the prisoner had been seen, or near where he had been seen. In Rex v. "Watson {supra), Lord Ellenborough cited this case from recollection : " a butler to a banker at Malton, had been taken up upon suspicion of having com- mitted a great robbery. The prisoner had been seen near the privy, and this circumstance hav- ing excited suspicion in the minds of the counsel who considered the case during the assizes at York, at their instance, search was made, and in the privy all the plate was found. It was produced, and the prisoner was in consequence convicted. He had been separated from the custody of the plate, since he had been confined in York castle for some time, but no doubt was entertained as to the admissibility of the evidence." So on the trial of an indictment for having in possession counterfeit bills, with intent to pass them, it need not be proved that they were found on the person ; it is enough that they appear to have been under the control of the prisoner. Connor's Case, 5 C. H. Rec. 115, before Golden, Mayor, N. Y. Gen. Sess. Sept. 1820. But it should be remembered that although a finding even in the prisoner's house is admissible ; yet, where there is not a more direct possession shown, and there are no other inmates in the house capable of stealing the goods, this finding, per se, would not raise the presumption. Other circumstances should be shown. 4 Stark. Ev. 840, note z. And the reason is stronger of a finding in the prisoner's open shop. A blacksmith secretly deposited a piece of iron in a heap of coal which lay in the coal-house of a neighboring blacksmith (a Mr. Lamb, Moreau, Saratoga county) ; then swore out a search warrant on which he found the iron, to Lamb's great astonish- ment ; and was proceeding to convict Lamb before a special session. He would probably have succeeded, had not a boy of Mr. H. Billings, who resided within a few rods of the shop, acciden- tally seen the prosecutor, a, few mornings before, passing with something into the shop about daylight, and returning in an unaccountable manner. This led to a suspicion that the whole afiair was sunulated ; resulted in a thorough investigation ; and the prosecutor afterwards suffered the penalty of his fraud and perjury. Lamb was a man of excellent character. Tliis, to be sure, was not the case of a genuine circumstance ; but it proves that an open shop of this character may too easily be perverted to the ruin of an innocent man, to warrant a reliance upon the find- ing alone, as a full foundation for the usual inference. Thirdly. All this presupposes the goods to have been duly identified, which may be by marks, or the witness's confident general knowledge of the particular goods. 2 East's P. C. 656, 657 ; 2 Ev. Poth. 249, 250. A witness may safely be relied on as to his acquaintance with a specific article of familiar use (as his own cloihes), though he can give no reason for his means of identity, or give, as he often may, a false or absurd reason. 2 Ev. Poth. 249, 250. But where, as it often happens, the goods stolen cannot be thus identified, as if the charge relate to grain in a barn, sugar in a ship or on wharves and the like, the identity must then be made out by circumstances. These may be the detection of the prisoner in the very act of leaving the place, with the grain, or sugar, &c., upon him, which is found to be missing. 2 East's P. C. 657 ; Russ. on Cr. 1155. The prisoner concealing the property is corroborative. Id. Silk being missed from a store package lying open for sale, the same kind of silk was traced to the possession of three persons (squalid looking negroes) who had labored about the store the same day, and who had sold this silk to S. as coming from a venture at sea, Some buttons stolen at the same time were identified directly, and traced to one of the prisoners. The identity was holdeu to be well made out by these cir- cumstances. Case of Ferguson et al., before Radoliff, Mayor, N. Y. Gen. Sess. April, 1816, 1 C. H. Rec. 65. So, where an habitual laborer about a store, well acquainted with the premises, was indicted for stealmg bank bills and silk ; the proof was that the bills and the silk were pur- 638 Of Presumptive Evidence, [CH. X. sometimes found in the prisoner's house before his apprehension, fre- quently found afterwards ; and there can be no objection to proof of their being found at one time or the other,(l) This kind of evidence is fre- qnently strengthened materially by other circumstances — as by proof that about the time of the offence the prisoner was near the spot from which the goods were taken — or that he gave some false account respecting the goods on being charged with the crime — or endeavored to conceal them, or, perhaps, tried to prevent an inspection — or by some other proof of sus- picious circumstances in his behavior. On the other hand, the inference arising from the mere fact of possession, wUl be much weakened, if any considerable time has elapsed between the loss of the property and the finding of it again, or if the property was from its nature likely to pass in the interval through many hands ; especially where the prisoner betrayed no appearance of guilt at the time of his apprehension ; nor will the mere discovery of stolen property in the house of the accused be of itself suffix cient to raise the presumption against him, if there were other inmates capable of committing the larceny. (2) loined through a secret approach from the cellar to the store ; and bills, some of them of the same denomination with those taken, were afterwards found on the laborer, which the clerk thought ■were the same as those taken from a desk in the store. The laborer had sold silk of the same description as that which was missed. The circumstances were left to the jury as sufficient to show the identity ; and they found the prisoner guilty. Williamson's Case, before Radoliff, ■ Mayor, If. T. Gen. Sess. July, 1816, 1 C. H. Rec. 115. 3. The presumption arising from the possession or other circumstances, ma,y, of course, be ex. plained away or repelled by opposing circumstances. The better opinion seems to be that the presumption arising from possession alone is completely removed by the good character alone of the prisoner. This was denied by Radcliff, Mayor, in Ferguson's Case {supra) ; but he considered that a very strong case. In another, where the goods were, soon after the larceny, found on the prisoner (a female), though her own account was not entirely satisfactory, yet the court directed her to be acquitted on proof of her good character. People v. TureU, 1 Wheel. Or. Cas. 34, 35, before Riker, Recorder, N. T. Gen. Sess. Sept. term, 1822. And in another case, in the same term (People v. Preston, Id. 41), the recorder said to the jury: "Where stolen property is found in possession of the prisoner, and he is unable or refuses to give a satisfactory account how he came in possession of it, an4 proves no good character, it is always taken as evidence of his guUt." The possession of the goods may also be accompanied with circumstances (such as unsuspicious conduct) repelling the presumption. Sales' Case, 5 C. H. Rec. ITS, 179. The prisoner may also show that he was an accessory after the fact ; and thus rebut the inference of stealing arising from the possession. But if his statements be (on giving an account of the property) false and inconsistent, this may be relied on to rebut the proof that he was a mere accessory. Ball's Case, 4 0. H. Rec. 157, 158, before Colden, Mayor, N. Y. Gen. Sess. Nov. 1819. See also Pennsylvania V. Myers, Addis. 320, 321. That finding part of the goods is proof of stealing the whole, see post, and note. In these cases the judge is not precluded from giving his opinion to the jury upon the evidence as well as the law ; which are often so blended that it is difficult to take a distinct and discon- nected view of each separately. State v. Bennett, 2 Const. Rep. 692. (1) See by Lord BUeuborough, C. J., and Abbott, J., in R. v. Watson, 2 Stark. R. 139. (2) See the observations on this presumption, 2 East P. C. 656, 665 ; 2 Hale's P. C. 289 • 1 Rusa., 0. & M., by Greaves, 122. As to the interval elapsing between the loss and discovery o' SEC. II.] And of Presumptions. 639 Where a person is proved to have suppressed any species of evidence, or to have defaced or destroyed any written instrument, a presumption will arise that, if the truth had appeared, it would have been against his interest, and that his conduct is attributable to his knowledge of this cir- cumstance. The general rule is, — Omnia prcesumuntw contra spolia- torem.{l) Where a testator made a will, and devised premises to A. ; afterwards he made another will, which was lost, and which the jury stated in a special verdict to be different from the former will, but they did not find in what particular the difference consisted : the court decided that the devisee under the first will was entitled to the estate ;(2) but Lord Mansfield, C. J., said, that if the devisee under the first will had destroyed the second, it would have been a good ground for a jury to find a revo- cation. It has been considered that, upon a charge of robbery, it is not neces- sary that actual fear should be strictly proved, because, as it, is said, the law, in odium sjpoliatoris, will presume fear, where there appears to have been a just ground for it. Accordingly, an indictment for robbery has been sustained, where the party robbed sought out the robber and sub- mitted to be robbed by him, purposely with the view of bringing him to justice.(3) The fabrication of evidence is calculated to raise a presumption against the party who has recourse to such a practice, not less than when evidence has been suppressed or withheld. Legal experience, however, has shown that false evidence has sometimes been resorted to for proving facts which are true.(4) In the Douglass Peerage Case, the successful party had to the property ; see Anon., 2 C. & P. 459 ; R. v. Partridge, 1 G. &F. 651 ; R. v. Adams, 3 0. & P. 600 ; R. V. Cockin, 2 Lew. R. 236. As to property being found in the prisoner's house, see R. v. Hall, 2 Cowp. 128. It may he observed that this presumption is frequently as strong in favor of receiving stolen property, as of stealing it. See as to the possession of stolen property being evi- dence of another felony, post. (1) Bvana Poth. Obi. 292. (2) Harwood v. G-oodright, Gowp. 86. For other examples of this presumption, see Annesly V. Anglesea, 17 How. St. Tr. 1430, where the presumption arose from the plaintiff being kid- napped and sold for a slave. Sir S. RomiUy's argument on Lord Melville's trial, 29 How. St. Tr. 1194, where most of the cases are collected. Cowper v. Oowper, 2 P, "Wms, 120, 148, 152; G-artside v. Radcliffe, 1 Ch. Oa. 292 ; Delany v. Tenison, 3 Br. P. C. 669 ; Dalstou v. Ooataworthi 1 P. Wms. 131 ; Anon., 1 Ld. Raym. 131 ; Newcastle (Duke) v. Kinderly, 8 Ves. 363 ; R. y, Arundel, Hob. 109, oit. 2 P. Wms. 148 j Barker v. Ray, 2 Russ. 13 ; Clunnes v. Pe?zy, 1 Camp. 8, n ; Braithwaite v. Coleman, 4 N. & M. 664 ; Armory v. Delamorie, 1 Str. 605. As to the in- ferences to be drawn from withholding books, after notice to produce, see Cooper v. fiibbons, 3 Camp. 363 ; Lawson v. Sherwood, 1 Stark. R. 314 ; Crisp r. Anderson, Id. 35 ; Bate v. Kinsey, 1 C, M. & R. 41. So where a party shows that he has burnt up an instrument, he must go further and show that it was done under circumstances that repel all inference of a fraudulent design on his part. Blade V. Newland, 12 Wend. 113. (3) Post. Dis. 128 I 2 Bast P. C, c. 16, § 128. (4) See a remarkable instance, 3 Inst. 232. 640 Of Presumptive Evidence, [CH. x. contend \yitli a presumption against him, arising from the fabrication of several letters.(l) In general, there is a presumption in favor of the continuance of what is once proved to have existed.(2) In questions concerning the duration of human life, there is a presumption which has been much sanctioned and acted upon (if it be not obligatory upon juries), that where a person has been absent abroad for seven years, he is to be presumed to be dead. This period has been adopted as the ground of such presumption, from analogy to the statute 1 Jac. I, c. 11, § 2,(3) relating to bigamy, and to the statute 19 Car. II, c. 6, relating to the continuance of lives on which leases are held.(4) Lord Denman, C. J., has said,(5) that there was no rigid rule of presumption upon such questions of fact, without reference to accompanying circumstances, as, for instance, the age or health of the party .(6) The fact of absence for seven years raises no inference as to the exact time of the death, or that the death took place at the end of seven years.(7) Death, without issue, may be presumed, where marriage and issue are two affirmative facts to be proved. (8) (1) See Appendix to Evans' Pothier, respecting the four letters of Lamarre, tlie surgeon, fabri- cated by Sir J. Stewart. (2) WUson V. Hodges, 2 East, 312; Throgmorton v. "Walton, 2 Roll. E. 461; Att. Gen. v. Parnther, 3 Br. Oh. Ca» 25 ; Exp. Holyland, 11 Tes. 10 ; White v. Wilson, 13 Ves. 88 ; Hargr. Co. Litt. 185, 11. ; White v. Driver, 1 Phillim. 100 ; R. v. Budd, 5 Esp. 259 ; Ludlow (Mayor, &c.) V. Charlton, 9 C. * P. 242. Note 184. — S. P., Lessee of Battin v. Bigelow, Peters C. C. Eep. 452. And see ante, note 111. But where this presumption necessarily involves in its consequences the commission of a crime by another person, the rule is otherwise ; for the presumption against crime is stronger than that which ordiaarily exists in favor of life. Eex v. The Inhabitants of Twyning, 2 Barn. & Aid. 386. (3) See also 9 Geo. IT, c. 31, § 22. (4) In Doe d. George v. Jesson, 6 -East, 85, the presumption is spoken of as a rule of law. See also Doe d. Lloyd v. Deakin, 4 B. & A. 433 ; Rowe v. Hasland, 1 W. Bl. 404 ; at the period of which last-mentioned decision the presumption does not appear to have been so definite as to time. The presumption of death, from absence for seven years, was formed, however, previous to the statute of bigamy, in Thorne v. Rolffe, Dyer, 185 ; Bendl. 86. See Hopewell v. De Phina, 2 Camp. 113; where in a plea of coverture, the defendant was held to be bound to prove her husband alive within seven years. (5) la E. v. Harbonne, 2 A. & E. 644. (6) See Watson v. King, 1 Stark. R. 121 ; S. C, 4 Camp. 2';2; where it was held, that the time of death of a person, sailing on board a missing ship, was to be judged of according to the special circumstances. See also Norris v. Norris, Rep. tem. Pinch, 419 ; Dixon v. Dixon, 3 Bro. Ch. Ca. 510 ; Sillick v. Booth, 1 Y. & Col. 117 ; In re Hutton, 1 Curt. 595. (7) Doe d. Knight v. Nepean, 5 B. & Ad. 86 ; S. C. in error, 2 M, & W. 894 ; where the lessor of ihe plaintiff sought to place the period of death at the end of soven years, in order to avoid an adverse possession. (8) Doe d. Oldnall v. Deakin and Wooley, or WoUey, 3 C. & P., 402 ; S. C, 8 B. & C. 22. And see Doe v. Griffin, 15 East, 293 ; Richards v. Richards, Id. 294, n. ; Rust v. Baker, 8 Sim. 443. Note 185. — In New Jersey, the statute attaching on the fact of seven years' absence from the state raises the presumption of death, which, however, may be rebutted by proof that the ab- sentee has been alive within that period. Wambough v. Schank, 1 Penn. Rep. 229. So in South Carolina, seven years' absence from the state is reasonable ground for presuming death. SEC. II.] And of Presumptions. 641 Presumption of survivorship. By the civil la\v,(l) and in foreign oodes,(2) several rules are laid down for the direction of courts, in ascertaining the fact of survivorship, where several persons have perished by the same calamity. No very definite rule has been adopted in this country upon the subject ; but there appears to have been a leaning to consider the person possessed of the property in dispute, to have survived ; and some regard appears to have been paid to the probability of the survival of the stronger party.(3) In the Eccle- siastical Courts, the presumption appears to be adopted that all the sufferers perished together, and could not, therefore, transmit rights the one to the other.(4) Woods V. Woods' Adm'r, 2 Bay, 476. In Kentucky, to justify the presumption of death after seven years' absence, the person must be proved absent for that period out of the country of his residence. Spurr v. Trimble, 1 Marsh. Ken. Rep. 278; Hull v.' Commonwealth, Hardin's Ken. Rep. 479 ; Amer. Ch. Dig. 176. In Pennsylvania, proof that a person has not been heard of for seven years is sufficient to rebut the presumption of life ; and the lapse of twenty-four years, without proof of inquiry or other circumstances, ia enough to warrant the presumption that a person, of whom nothing has been heard for that length of time, is dead. Iimis v. Campbell et al., 1 Rawle, 373. In Massachusetts, also, the mere absence of a person from the state without being heard from for seven years, is sufficient to raise the legal presumption of death ; but ab- sence for a shorter period ia not so. Where letters of administration, however, have been granted, it is different ; for then the fact of death does not rest on presumption, but on an adju- dication of the Probate Court. Newman v. Jenkins, 10 Pick. 515. Ignorance in a family of the existence, of one of the children, who had gone abroad at the age of 22, unmarried, and had not been heard of for upwards of forty years, is sufficient, with other circumstances, to warrant the presumption of his death wit?u>ut issue. McComb v. Wright, 6 John. Ch. Rep. 263. See Crouch et ux. V. Eveleth, 15 Mass. Rep. 305 ; University of North Carolina v. Johnston, 1 Hayw. Rep. 373. In New York, it is provided by statute, that " if any person, upon whose Ufe any estate or tenements shall depend, shall remain beyond sea, or shall absent himself^ in this state or else- where, for seven years together, such person shall be accounted naturally dead, in any action concerning such lands or tenements, in which his death shall come in question, unless sufficient proof be made in such case of the life of such person.'' 1 R. S. 749, § 6 ; 1 R. L. 103, § 1. See Clarke v.~ Cummings, 5 Barb. 354. In King v. Paddock (18 John. Rep. 141), Spencer, C. J., delivering the opinion of the court, seemed to think, in this case, that the facts authorized the jury also to presume the death of the husband, from the wreck or foundering of the vessel in which le left.) (The presumption of death from absence beyond sea or elsewhere for seven years in succes- sion, without having been heard from, is very general. Primm v. Stewart, 7 Texas, 178 • Porsaith v. Clark, I Foster (N. H.), 409 ; but the only presumption is, as stated in the text, that he is then dead, not that he died at any particular time. Spencer v. Roper, 13 Ired. (N. C.j 333 • MoCartee v. Carmel, 1 Barb. Ch. 455 ; The State v. Moore, 11 Ired. 160. No presumption of death arises from mere lapse of time and the previous bad health of the party. Matter of Hall Wallace, jr. 85. (1) See Dig. I. 34, t. 5 ; 1. 9, t. 1, 3 ; 1. 16, t. 22, 23. (2) See Code Civ. (Pr.), §§ 720-722. (3) See Silliok v. Booth, 1 Y. & Col. 117, 126. (4) See Taylor v. Diplock, 2 Phillim. 261 ; Oolvin v. Proc. Gen., 1 Hagg. Ec. R. 92 ; R. v. Hay (Case of General Stanwix), 1 W. Bl. 640. See also Pearne's Posthumous Works, 38; 2 Phillim. 268, u. ; 5 B. (fc Ad. 91, 92. And see Selwyn's Case, 3 Hagg. Ec. R. 748 ; In the goods of Murray, 1 Curt. 596 ; Mason v. Mason, 1 Mer. 308, n. ; Broughton v. Randall, Cro. Eliz. 503 ; Wright v. Nether- VoL. I. 41 642 Of Presumptive Evidence, [GH. X. Presumption, as to loss of a ship. "With respect to the presumption of the loss of missing ships, a practice is said to prevail among underwriters, .that a ship shall be deemed lost, if not heard of for six months after her departure for any port of Europe, or in twelve months after departure for any greater distanoe.(l) As to appointments and official acts. It has been seen, that it is a rule that all public officers, who are proved to have acted as such, are presumed to have been duly appointed to the office, until the contrary is shown, and that the force of this presumption is so strong as to supersede the rule which excludes secondary evidence.(2) Where acts are of an official nature, or require the concurrence of offi- cial persons, a presumption arises in favor of their due execution ; it has been said on such occasions, " Omnia prmsumuntur rite esse acta." Thus, in order to support a parish certificate, a custom was presumed, contrary to the common law, of the parish having only one churchwarden, and it was also presumed that a party to the instrument had died within a very short period,-^on the ground that the certifieate had been sanctioned by justices. (3) With regard to judicial proceedings in inferior courts and before magis- trates, the maxim " Omnia rite acta" will apply in support of an order of justices, provided their jurisdiction appear on the face of the order,(4) but it does not apply to convictions, which, being proceedings of a summary nature, are always watched with jealous vigilance by the superior courts ;(5) still, though they can intend nothing in favor of convictions, they will intend nothing against them.(6) The maxim, however, will not ■wood, 2 Salk. 593, n. ; S. 0. nom. 'Wright v. Sarmuda^ 2 Phillim. Ee. R. 266, 2*11, n. c, a ques- tion of revocation of a will, a father, wife, and child dying by shipwreck. (See, also, Moehring v. Mitchell, 1 Barb. Ch. 264 ; MoComb v. Wright, 5 Johns. Ch. 263 ; King V. Paddock, su/pra.) (1) Park Ins. 106, lOt ; Patterson v. Black, Id. 433 ; Newby v. Reed, Id. 148 ; Green v. Brown, 2 Str. 1199 ; Cohen v. Hinkley, 2 Camp. 51 ; Coster v. Innes, R. & M. 333 ; Twemlow V. Oswin, 2 Camp. 85 ; Houstman v. Thornton, Holt, 242 ; Koster v. Reed, 6 B. & C. 19 ; "Wat- son T. King, 1 Stark. E. 121. (2) Swpra, Chap 9, Of the Sule Reguirmg the Best Evidence. (3) E. V. Catesby, 2 B. & C. 820. And see R. v. Hinckley, 12 Bast, 361 ; R. v. Bestland, 1 Wils. 128 ; R. T. Benson, 2 Camp. 508 ; R. v. Whitchurcli, 1 B. & C. 673 ; R. v. Upton Gray, 10 B. & C. 801 ; Bastard v. Trutoh, 3 A. & B. 451. (4) R. V. Morris, 4 T. R. 552. As to the presumption in favor of the regularity of the pro- ceedings in the Boolesiastical Courts, see Chesterton v. Porlar, 1 A. & B. 113 j HaU v. Maule, Id. 721 ; Hallack v. Cambridge (Univ.), 1 Q. B. 593, 614. (5) SeeB. v. Morris, ui supra; E. v. Baines, 2 Lord Raym. 1265, 1269; R. v. Little, 1 Burr. 613 1 R. V. Cordon, 4 Id. 2281 ; E. v. Pain, 7 D. & R. 678 | E. v. Daman, 2 B. & A. 378 ; Fletcher v. Calthrop, 6 Q. B. 890, 891. (6) By Lord EUenborough, C. J., m R. v. Hagell, 13 East, 141; Paley Oonv. 74—77. See, also, by Pratt, 0. J., in R. v. Helling, 1 Str. 8 ; by Coleridge, J., in Christie v. Unwin, 11 A. & B. 379; by Lord Denman, 0, J., In re Clarke, 2 Q. B. 630. SEC. II.] And of Presumptions. 64:S apply so as to give jurisdiction (1) therefore, wkere an examination of a soldier, taken before two magistrates, was tendered to prove Ms settlement, but it did not appear bj the examination itself, or by other proof, that the soldier, at the time he was examined, was quartered in the place where the justices had jurisdiction, it was held that such an examination was not receivable in evidence.(2) Private formal acts. This presumption has been extended to the acts of private individuals, especially when they are of a formal character, as writings under seal. Thus, in an action in which the plaintiff's title was founded on the assign- ment of a term to secure an annuity, it was objected that there was no proof of the annuity being enrolled ; but Lord EUenborough, C J., held that proof of the want of enrollment should come from the other side, and that he would presume the security to be valid, till the contrary was shown.(3) Where there was proof that a party had signed a deed which purported to have been sealed and delivered, it was held, that the judge at Nisi Prius had not done wrong in leaving it to the jury to infer that the deed had been sealed and delivered.(4) Upon a similar principle, and in accordance with the law of merchants. (1) By Holroyd, J., in E. v. All Saints, Southampton, T B. & C. ISO ; E. v. Huloot, 6 T. R. 683 ; E. V. Helling, 1 Str. 8, overruling E. v. Gouohe, 2 Salk. 441. (2) R. V. All Saints, Southampton, T B. & C. 189. In Carratt v. Morley (1 Q. B. 18), it was held that the jurisdiction of commissioners of a local court of requests could not be inferred raerely from their having acted. (3) Doe d. Griffin v. Mason, 3 Camp. 1. And see Doe d. Lewis v. Bingham, 4 B. & A. 672 ; Xondon and Brighton Eail. Co. v. Fairclough, 2 M. & G. Gli. (4) Talbot V. Hodson, 1 Taunt. 251. And see Faaset v. Brown, Peake, 23 ; Grellier v. Nealei Id. 146 ; Burling v. Paterson, 9 C. & P. 570 ; Davidson v. Cooper, 11 M. & "W. 784 ; R. v. St. Paul, Covent Garden, 7 Q. B. 238. As to the presumption that a deed was duly stamped, see Doe d. Fryer v. Coombs, 6 Jur. 930, Q. B. See, also. Crisp v. Anderson, 1 Stark. E. 35 ; R. v.' Long Buckby, 7 East, 45 ; Pooley v. Goodwin, 4 A. & E. 94 ; Hart v. Hart, 1 Hare, 1. The illustrations of this presumption are very numerous. For example : — Necessary priority of con- veyances of the same date, Barker v. Keate, 1 Freem. 251 ; Taylor v. Horde, 1 Burr. 107 : Sheets-of a wiU present in a room, Bond v. Seawell, 3 Burr. 1773; S. C, 1 W. Bl. 407 422 454 : — Subscription in testator's presence. Hands v. James, Com. 531 ; Brice v. Smith, WiUes 1 • S. Ot Com. 538 j 2 Eq, Ca. Abr. 317 ; Croft v. Pawlet, 2 Str. 1109:— Interlineations before seal- ing, Trowell v. Castle, 1 Keb. 22; Hargr. Co. Litt. 225 b, n, 1; GlanviUe v. Paine, Barn. 19; Fitzgerald v. Fauconberge, Fitz. 204. But see Cooper v. Bockett, 4 Moo. Pri. Conn. E. 419 : Consecration of chapel, 2 Hagg. Ec. E. 50 : — Confirmation qf conveyance of glebe, Cro. Jac. 456 : — Sanction of right of presentation to a chapel of ease, 2 Eden, 360 ; Ambl. 528 ; 4 B. & C. 455 ;— Confirmation of modus, 2 P. "Wms. 573:— Composition real, 2 Anstr. 372:— Consent to incloaure, I Vem. 32; 5 Vin. Ab. 8, pi. 32 :— Eepublicatiou of will, 8 Yes. 129 :— Induction, Chapman v. Beard, 3 Anstr. 332 ;— EnroUmept of charitable use, 3 B. & A 152 :— Surrender of copyhold, 1 J. & W. 620; 10 Bast, 409 :— Copyhold adwttance, Blunt v. Clarke, 2 Sid, 61 ; FrosweU v. Welsh, 1 EoU. Rep. 415 ; Roe d. EberaU v. Lowe, 1 H. Bl. 446 ; Watkins on Copy- holds, 269, n.; 7 East, 21 ; Dyer, 292, a; Cooks v. Hellier, 1 Vea. 234. See, also, Doe d. Wood- house v. Powell, 8 Q. B. 679, and cases there cited. 644 Of Presumptive Evidence, [CH. X. a negotiable security will be presumed prima facie to have been made for a valuable consideration.(l) It may also be stated as a general rule, that a document will be pre- sumed to have been made at the time when it bears date.(2) There are some exceptions, however, to this rule; as, where an instrument is pro- duced for the purpose of proving a petitioning creditor's debt, to support a proceeding in bankruptcy ; in that case some evidence besides the date is necessary, to show that the instrument had its existence before the act of bankruptcy. But the ground for requiring that proof is, that a pro- ceeding in bankruptcy differs from an ordinary suit. The effect of a pro- ceeding in bankruptcy is retrospective, and the object of it is to invalidate all transactions which have taken place between the act of bankruptcy and the time when the commission takes effect. And as it fs the interest of the petitioning creditor to support the fiat, the courts feel a reasonable jealousy of collusion between him and the bankrupt.(3) Upon the same principle, where, in an action for criminal conversation, the letters of the wife are given in evidence, for the purpose of showing the terms upon which she was living with her husband, some other evidence besides their date is reqiiired, to show the period when they were written.(4) In a case where a defendant gave in evidence a letter of the plaintiff, dated the 17th of January, purporting to be an answer to one written by one "W"., and the plaintiff in reply proposed to put in a letter, proved to be written by W., and dated the 16th of January, as that to which the one of the 17th was an answer, it was ruled to be inadmissible, without fur- ther evidence to show that it was the letter to which the plaintiff's was written in answer, or, at least, that it was in existence before the date of the plaintiff's answer.(5) (1) Collins V. Martin, 1 B. & P. 651 ; Holliday v. Atkinson, 5 B. & C. 501. (12 Wend. R. 484; 13 Id. 657 ; 8 Cowen, 11.) (2) As to deeds, see Davies v. Lowndes, 6 M. & G. 52. And see 6 N. 0. 300 : Awards, Doe d. Clarke v. Stillwell, 8 A. & E. 645 : Bills of exchange and promissory notes, Anderson v. 'Weston, 6 N. C. 296 ; Obbard T. Betham, M. & M. 486 ; Smith v. Battens, 1 Mo. & R. 341 : Accounts, Sinclair v. Baggaley, 4 M. & "W. 312 : Letters, Hunt v. Massey, 5 B. & Ad. 902 ; Goodtitle d. Baker v. Milburn, 2 M. & W. 853 ; Anon., 2 Chitt. R. 294 ; Potez v. Glossop, 2 Exch. R. 191. ■Wherever fraud or mistake is alleged, it may be shown that the instrument was not made at the time it bears ^date. Breok v. Cole, 4 Sand. 79. But the instrument is presumed to have been executed on the day of its date. Glenn v. Grover et al,, 3 Md. 212. (3) Per Cur., in Anderson v. "Weston, 6 N. C. 301, 302. And see Hoare v. Goryton, 4 Taunt. 660 ; Wright v. Lainson, 2 M. & W. 739, 743 ; by Lord Abinger, C. B., in Sinclair v. Baggaley, 4 M. & W. 318. The case of Taylor v. Kinlooh (1 Stark. R. 175) is overruled by these decisions. See, also, Gibson v. Zing, Car. & M. 458, where Alderson, B., said the decision of the Court of Exchequer, in Sinclair v. Baggaley, v,t svpra, had been greatly doubted. (4) Edwards v. Crook, 4 Esp. 39 ; Trelawney v. Coleman, 2 Stark. E. 191 ; S. C, 1 B. & A. 90 ; Wilton V. Webster, 7 0. & P. 198. (5) M'Namara v. Gibbs, Car. & M. 412. SEC. II.] And of Presumptions. 645 Presumption from course of public ofBoe. Presumptions are frequently made from the regular course of a public office. Thus, where it was proved that the custom-house would not per- mit an entry to be made, unless there had been an indorsement made upon a license, it was held, after proof that the license had been lost, that the indorsement might be presumed from the entry.(l) If a letter is sent by the post, properly directed,(2) there is & prima facie presumption, from the usual course of a department of the public service, that it reached its des- tination, till the contrary is proved.(3)* And presumptions are frequently drawn from the usual course of private offices, that letters have been sent by the post, or notices delivered, where the persons are dead, who alone could give direct evidence of the fact.(4) In like manner, underwriters are generally presumed to know the con- tents of Lloyd's Shipping List, as being a document to which, in the ordi- nary course of business, they have access ; but this presumption will not bind an underwriter, if it should appear that, owing to a false representa- tion by the assured, he did not in fact look at the list.(5) So, the under- writers, upon a foreign ship, or a foreign voyage, are presumed to know the usages and laws of foreign states, which affect that ship or that voy- age.(6) Course of events. Where two things are proved to have been done on the same day, that which ought to have been done first, will be presumed to have been done so; (7) but, where there is a doubt which took place first, the party who is to act upon the assumption that they took place in a particular order, ought to make the inquiry.(8) (1) Butler V. AInutt, 1 Stark. R. 222. And see Tan Omeron v. Dowick, 2 Camp. 44. (2) See Walter v. Haynes, B. & M. 149. (3) Saunderson v. Judge, 2 H. Bl. 609; Kufh v. Weston, 3 Bsp. 54; Dobree v. Eastwood, 3 C. & P. 250 ; Warren v. Warren, 1 C, M. & B. 250. A similar presumption arises if a letter is delivered to a postman. Skilbeck v. Garrett, T Q. B. 846. But see Hawkins v. Rutt, 1 Peake 186. Post marks are evidence that the letters were in the olfiee at the times which the dates specify. R. v. Plumer, R. & R. 264 ; Fletcher v. Braddyl, 3 Stark. R. 64 ; R. v. Johnson, 1 East, 65 ; R. V. Watson, 1 Camp. 215 ; Coltou v. James, M. & M. 276. (4) See Doe d. Patteshall v. Turford, 3 B. & Ad. 890, 895, as to service of a notice to quit. As to the effect of the course of business, in proving that letters have been sent by the post, where the clerks of an ofBce are dead, see Pritt v. Pairolough, 3 Camp. 305 ; Hagedorn v. Reid, Id. 317 - Toosey v. Williams, M. & M. 129 ; Champneya v. Peck, 1 Stark. R. 404. As to the effect of the like course of business, where the clerks are living, see Hetherington v. Kemp, i Camp. 193 ; Hawkes v. Salter, 4 Bing. 715. (5) Mackintosh v. Marshall, 11 M. & W. 116. (6) Per Ova-., in Toung v. Turing, in error, 2 M. & Gr. 693, 603. And see Noble v. Kennoway, 2 Doug. 513 ; Da Costa v. Edmonds, 4 Camp. 142. As to knowledge of a particular custom, where the jury have expressly negatived notice, see Milward v. Hibbert, 3 Q. B. 120, (7) By Alderson, B., in Aikman v. Conway, 3 M. & W. 72. (8) By Lord Denman, 0. J., in Oaatrique v. Bernabo, 6 Q. B. 500, Of Presvm.ptive Evidence, [CH. X. Presumption from possession. Several presumptions are made with reference to persons in possession of property. A person in possession of land, is prvma facie presumed to be seized in fee.(l) This presumption, however, may be rebutted by a (1) See the cases {swprd), of deolaratioBs against interest by persons in possession of property! ■which depend on this presumption. And see Doe d. "Welsh v. Langfield, 16'M. & "W. 497. Am to presumptive right to minerals, see Eowe v. Grenfel, R. & M. 396 ; Rowe v. Brenton, 8 B. & C- TST ; Hodgkinson v. Fletcher, 3 Doug. 31 : of quit rent, Doe d. 'Whittick v. Johnson, Gow, I'TS : of property in mines, B. N. P. 38. See, also, Trotter v. Harris, 2 T. & J. 285, as to possession of the franchise of a ferry. Doe d. Laurie v. Dyeball, M. & M. 346 ; S. C, 3 C. & P. 610 ; Doe d. Harding v. Cooke, 1 Bing. 346, as to possession of title in ejectment against a -wrongdoer. See further, aa to presumptions from possession, Sutton v. Buck, 2 Taunt. 302 ; Thomas v. Poyle, 5 Bsp. 88 ; Catteris v. Cowper, 4 Taunt. 547 ; Graham v. Peat, 1 East, 244 ; Sheriff v. CadeD, 2 Bsp. 617. Note 186. — See note 177. The mere prior possession of property, howcTer recent, wiU enable the occupant to recover or defend against a stranger, in ejectment, trespass, trover, Ac. A plaintiff in ejectment recovered on prior possession. Doe ex dem. Carr v. Billiard, 3 Mann, 4 SyL ) 11 ; Doe ex dem. Harding v. Oooke, 5 Moore & Payne, 181 ; Day v. Alverson, 9 Wend. 223 ; Doe ex dem. Hughes v. Dy ball, 3 Carr. & Payne, 610 ; a brief possession by the plaintiff's tenant; S. C, 1 Mood. & Malk. 346 ; Jackson ex dem. Weidman v. Hubble, 1 Cowen's Rep. 613 i Jackson ex dem. Murray v. Hazen, 2 John. Rep. 22 ; Jackson ex dem. Duncan v. Harder, 4 John. Rep. 202 ; Allen ex dem. Harrison v. Rivington, 2 Saund. Ill ; Jackson ex dem. Murray V. Denn, 5 Cowen's Rep. 200 ; Catteris v. Cowper, 4 Taunt. 547 ; Smith ex dem. Teller v. Lor- Jllard, 10 John. Rep. 338, 356, and cases there cited at the last page. So in trespass qvm-e dausum fregit. Myrick v. Bishop, 1 Hawks, 485, a case of constructive possession under a deed covering the whole ; 'WendeU v. Blanchard, 2 H. H. Rep. 456, 457. overruling Wiokham v. Freeman, conira, 12 John. Rep. 183; Brandon v. Grimke, 1 Nott & M'Oord, 356 ; Cutts v. Spring, 15 Mass. Rep. 135. In trespass, as to personal property, the plaintiff was allowed to recover on possession. Gelston V. Hoyt, 13 John. Rep. 361, 378. See Ougton v. Stoppings, 1 Bamw. & Adolph, 241, S. P- Though form of action was for the money received for the goods. And Odiorne v. CoUey, 2 IT. Eep. 66, 67. So in assumpsit on the defendant's receipt of a raft for sale, which the plaintiffs found. Bone T. Hillen, 1 Rep. Const. Ct. 197, 199. So in trover on the plaintiff's possession. Eowe T. Brenton, 8 Bamw. k Cress. 737 ; Pinkham V. Gear, 3 N. H. Rep. 404 ; Duncan v. Spear, 11 Wend. 54 ; Daniels v. Ball, Id. 67, note. But in trover, the plaintiff having shown ownership, a short possession of the defendant, without the plaintiff's knowledge and acquiescence, was held no proof that the property Wiis changed. I'ompkins V. HaUe, 3 Wend. 406. So, possession is prima fade sufficient to maintain an indictment for a forcible entry and de- tainer, averring a fee in the relator (The People v. Leonard, 11 John. Rep. 504); or on an indict- ment for cutting timber or wood contrary to the statute (Commonwealth v. Hoover, 1 Browne's Eep. 25, Appendix) ; or on a claim of property in a prize court. Miller v. The Resolution, 2 Dall. 5. So, possession of an incorporeal hereditament, e. g. an exclusive right of flshely, was allowed as the ground of a plaintiff's recovery in trespass against a mere stranger. Russell v. Stocking, 8 Conn. Rep. 236. So of a ferry. Trotter v. Harris, 2 Tounge & Jervis, 285. So of the joint user of a party wall. Cubitt v. Porter, 8 Bamw. & Cress. 257. A long possession and adverse use of personal property, as for two or three years, may also be shown as auxiliary evidence of title against the former owner. BuUard v. Billings, 2 Verm. Eep. 309. The presumption derivable fiota poisession is, that the possessor owns absolutely. Thus, pos- SEC. II.] And of Presumptions. 647 stronger prestimption arising from circumstances — as, from subsequent possession by a daughter, while the heir at law was living ; and it is not conclusive evidence of a seizin, which can only be divested by deeds.(l) The possession of personal property affords a prima facie presumption of ownership.(2) Thus, although a documentary title is essential to ihe ownership of ships, it is sufficient, in an action upon a policy, for the plain- tiff to rest upon the mere fact of possession, unless further proof be ren- dered necessary by the contrary evidence being adduced.(3,) So the pos- session, by the plaintiff, of an " I. 0. U.," signed by the defendant, but not addressed to any one, is prima facie evidence that it was given by the defendant to the plaintiff.(4:) In like manner, where a letter is given in evidence, with the direction torn off, it will be presumed prima facie that it was addressed to the party who produces it.(5) There are certain prima facie presumptions in respect to the ownership of property, which seem not to have the force of rules of law, though a jury are to draw the conclusion which is derived from them. Thus, the ownership of a road, ad medium filum vice, presumptively belongs to the owner ©f the adjacent land; (6) and there is the like presumption in respect of the property and right of fishing in unnavigable rivers.(7) It is a presumption also, that strips of waste land, which adjoin a road, belong to the owner of the adjoining inclosed land, whether he be session with permananoy of the profits, or claim of title, is evidence in respect to land, of a seizin in fee ; but this may be rebutted or qualified by possession or other opposite evidence. Jayne v. Price, 5 Taunt. 326; per Savage, 0. J., in Livingston v. The Peru Iron Co., 9 Wend. 520, 521 ; People ex rel. Gault v. Van Nostrand, 9 Wend. 50, 53 ; People v. Leonard, H John. Rep. 504, 510; Day v. Alverson, 9 Wend. 223 ; Bioard v. Williams, 1 Wheat. 59 ; Jackson ex dem. Spark- man V. Porter, 1 Paine's Rep. C. 0. U. S. 45T. It was agreed that the defendant might defend in ejectment on a prior posseeision. Doe ex dem. Burrough v. Reade, 8 East, 363, 356 ; GiUiland's Lessee v. Hana, Addis. 251. It was denied that the goods can be laid as belonging to the sheriffs receiptor, in an indict- ment for larceny, because the latter is a mere servant. Commonwealth v. Morse, 14 Mass. Rep. 21'7 ; Norton v. The People, 8 Cowen, 137 ; DiUenbaok v. Jerome, 7 Id. 294, 299. Nor has he such a possession as will maintain trover or trespass against even a wrongdoer. Dillenback v. Jerome, 7 Cowen's Rep. 294 ; Ludden v. Leavitt, 9 Mass. Rep. 104 ; Warren v. Leland, 11 Id. 265; Whittier v. Smith, Id. 211; Waterman v. Robinson, 5 Id. 303. But see Pool v. Symonds, 1 N. H. Rep. 289, contra. (1) Jayne v. Price, 5 Taunt. 326. As to rebutting the presumption arising from possession, by showing that an ancester has not conveyed by true recovery, see Doe d. Smith v. Pike, 3 B. & Ad. 738. (2) Webb V. Fox, 7 T. R. 397. (3) Robertson v. French, 4 Bast, 130. (•4) Curtis V. Rickards, 1 M. & G. 46, recognized in Douglas v. Holme, 12 A. & B. 641. (5) By Tindal, C. J., in Curtis v. Rickards, ui siipra. (6) Berry and Goodman's Case, 2 Leon. 148 ; by Gibbs, 0. J., in Grose v. West, 7 Taunt. 40. See Headlam v. Hedley, Holt N. P. 0. 463. (7) Hale de Jure Maris, part 1, ch. 1 ; Carter v. Muroott, 4 Burr. 2163. As to navigable rivers, the presumption is that the soil is in the crown ; see the same authorities. And see R. V. Landulph, 1 M. & Rob. 393, as to the boundaries of parishes divided by a river. 648 Of Presumptive Evidence, [en. X a freeholder, or copyliolder, and not to the lord of the manor, unless the strips communicate with open commons, or larger portions of land.(l) This presumption has a reasonable foundation, since, if the road was out of repair, travelers might go upon the adjacent land, which would be a reason for the owner not inclosing up to the margin of the road.(2) In speaking of this presumption, Bayley, J., has said,(3) it is very desirable, that there should be one certain and definite rule applicable to all cases of this description ; and Holroyd, J., remarked,(4) that it was of considerable importance, that the prima facie presumption should be constant and uni- form. The presumption in question may, however, always be rebutted by evidence tending to raise a contrary presumption.(5) Where the lord of the manor has conveyed land to A., and afterwards other land to B., and it appears that a narrow strip of land passed by one or other of the con- veyances, but it was doubtful by which, no presumption arises in favor of A., from the fact that a strip of land lies between a highway and land in- disputably comprised in the conveyance to A. ;(6) for the presumption that the ownership of the land extends up to the middle of the road does not apply, when the whole has belonged to one party, who has granted a part to one grantee and a part to the other.(7) Lord Denman, C. J., said in this case, that he always thought presumptions of this nature were put too widely. Presumption as to nature of tenancy. Upon proof of payment of rent, in respect of premises that are ordi- narily let from year to year, it will be presumed, especially if such pay- ments are made quarterly, that the party making the payments holds under a tenancy from year to year.(8) By the Prescription Act, 2 & 3 Wm. IV, c. 71, various presumptions, which juries had been ordinarily recommended, if not directed, to make ■ (1) Doe d. Pring v. Pearaay, 1 B. & 0. 304; Steel v. Priokett, 2 Stark. E. 463; Grose T.West, 1 Taunt. 40 ; Cook t. Green, 11 Pri. 136. (2) The presumption appears not to exist where the road is defined for the first time nnder an inclosure act. R. v. Hatfield, 4 A. & B. 165 ; R. v. Edmonton, 1 Moo. & Rob. 32. (3) In Doe d. Pring v. Pearsay, 1 B. & 0. 304. (4) Id. As to presumptive ownership oi walls, see Newcastle (Duke)' v. ClaA, 8 Taunt. 613 ; Wiltshire v. Sidford, cited 8 B. & C. 259 ; Matts v. Hawkins, 6 Taunt. 20 ; Callia on Sewers, p. Hi. As to presumptive ownership of trees, see Masters v. Pollie, 2 Roll. R. 141 ; Holder v. Coates, M. k M. 112 ; Waterman v. Soper, 1 Ld. Raym. '!3'J ; 2 Roll. R. 265 ; B. N. P. 85. Of materials of pubho bridge, sefe Hamson v. Parker, 6 East, 154. As to presumptive ownership of soil in separate fishery, see Lofft, 364; Vowlos v. Miller, 3 Taunt. 138; Guy v. "West, 2 Selw. N. P. 1218. See also Godmanchester (Bailiffs) v. Phillips, 4 A. & E. 556. (5) Doe d. Harrison v. Hampson, 4 0. B. 267. (6) White V. Hill, 6 Q. B. 487. (7) By Patteson, J., Id. (8) Bishop V. Howard, 2 B. & 0. 100. And see Doe d. Lord v. Cargo, 6 C. B. 90, as to how this presumption may be rebutted. SEC. II.] And of Presumptions, 649 from modern user, as to the existence of immemorial rights, or of modern rights founded on supposed non-existing grants, have been converted into positive rules of law. Previous to this act, a technical effect was given to the evidence of enjoyment of certain incorporeal rights for the period of twenty years, which, though in theory only presumptive evidence, was in practice and effect a bar. The statute does not preveat a jury from pre- suming a grant from possession with other circumstances, if they believe one to have been actually made ; but it precludes the presumption from possession alone for a less period of enjoyment than that prescribed.(l) (I) B7 Parke, B., in Bright v. "Walker, 1 C, M. & R. 212. See 2 A 3 Wm. IV, 0. 100, amended by 4 & 5 Wm. IV, u. 83, as to tithes. And see Fellowes v. Clay, 4 Q. B. 313. Note 187. — See also WoUey v. BrownhiH, M'Clel. 317. So fifteen years' possession of a bene- fice was held presumptive evidence that the incumbent was regularly inducted, and had read the thirty-nine articles. Chapman v. Beard, 3 Anst. 942. See also 2 P. Wms. 573 ; 1 Eq. Cas. Abr. 367, 368. The cases on lights and ways, are mixed in the text. The following is a summary of the cases on lights. They relate mainly to the enjoyment of open, unobstructed, windows overlook- ing another's land. This right is often purchased ; but though it originate in temporary permis- sion of the adjoining owner, or mere usurpation of the party claiming the right, yet an enjoyment for twenty years affords presumptive evidence of an agreement, license or grant (Lewis v. Price, 2 "Williams' Saund. 175 a, 175 b, note 2 ; 1 Vin. Suppl. 162 ; S. 0., Esp. N. P. 636 ; S. C, 2 Esp. N. P. (Gould & Banks' ed. of 1811), 268; Dougal v. "Wilson, 2 "WilUams' Saund. 175 b, note 2; Darwin v. Upton, 2 "Williams' Saund. 175 b, c and d; Moore v. Kawson, 3 Barnw. & Cressw. 332, 335, eiseq.; Penwarden v. Ching, 1 Mood. & Malk. 400); and this though the messuage requiring the light be erected somewhat within the boundary of the owner's premises ; but so near that the light is sensibly diminished by a subsequent obstruction. Cross v. Lewis, 2 Barnw. & Cressw. 686. Nor can the iirference be rebutted by evidence that the right claimed had no existence previous to the commencement of the twenty years. Darwin v. Upton, 2 Williams' Saund. 176 b, c and d. But it may, by the reversioner "showing that the acquiescence was by his lessee ; for this could not be prevented by the reversioner, unless his knowledge be shown, so that he could interfere ; and though it may conclude the lessee, who is not incommoded, and would not naturally give notice to his landlord, it ought not to bind the latter. Daniel v. North, 11 Bast, 372. And see also Cross v. Lewis, 2 Barnw. & Cressw. 686. So, that the adjoining pro- prietor was an infant, or under coverture, or other personal incapacity to grant, when the user began. So, that he was absent from the kingdom ; and, therefore, ignorant of that fact, and incapable of resisting, or that the party alleged to have authorized the easement, had only a par- ticular interest, as a life estate ; and could not bind the reversioner. Barker v. Richardson, 4 Barnw. & Alders. 579. So a particular local usage or by-law; as in London, authorizing the stopping of adjoining lights at any distance of time. Wynstanley v. Lee, 2 Swanst. 333. But see Bland v. Mosely, cited in Alfred's Case, 9 Rep. 58. So non-user or abandonment will occa- sion the loss of the easement claimed, nor is twenty years necessary for this. Thus, pulling down a wall of ancient lights, and substituting a plain wall, is enough, unless some cotemporary act be done, to show an intention of resuming the former right. Moore v. Rawson, 3. Barnw. & Cressw. 332. The presumption in such case is, that the right has been relinquished as needless, or released for a valuable consideration. Lawrence v. Obee, 3 Campb. 514. See also 12 Tes. 265. The right to enjoy light, is not absolute and unquahfied in degree; but is limited by the extent and manner of usage ; so that one caimot demand more room for his windows, or an increase of light; and if he enlarge his window, this will not protect hun from its being partially covered by the adjoining buildmg, provided the ancient quantity of light yet remain to him. Chandler v. Thompson, 3 Campb. 80. See also per Wilmot, C. J., in Dougal v. WUson, 2 Williams' Saund. 650 Of Presumptive Evidence, [CH. X. Of public way. With respect to the presumed creation of rights of way, it is to be ob- served, that notwithstanding the statute, the dedication of public ways is still a matter to be presumed by juries ; and in making a presumption in such cases, numerous circumstances require to be taken into consideration, the effect of which has, in different instances, been more or less clearly de- fined by legal authorities. The question is generally affected by other stronger circumstances than mere lapse of time.(l) 175 b, note 2. And so ■where the house lighted was a malt-house, but was changed into a pariah work-house, requiring, and at first having, more light than the malt-house ; a feijce built so as to reduce the light to its former quantity, was held not actionable, though it diminished the necessary light of the work-house. Marsden v. Goble, 1 Camp. 320. A new trial was granted! but not On this point. And see Bealey t. Shaw, 6 Bast, 208, S. P., as to diverting water from a mill ; and Ballard v. Dyson, 1 Taunt. 2T9, that a way is limited by user to the kind of carriage or passage, whether by cattle, carts, &c. Jackson v. Stacey, 1 Holt's N. P. Rep. S. P. As to raising a mill-dam claimed to a certain height by user for twenty years, so as to flow land above, beyond the user, see Stiles v. Hooker, t Oowen'a Rep. 266; and other cases to this and the like effect, post, notes, 188, 189. (1) See R. V. Lloyd, 1 Camp. 262 ; British Museum (Trustees) v. Finnis, 5 C. & P. 460 ; Rugby Charity (Trustees) v. Merry weather, 11 Bast, Ste, n. See further as to the effect of a bar, Rob- erts V. Carr, 2 Camp. 262, n.; Lethbridge v. Winter, 1 Id. 263, n. : as to limited dedications, Stafford (Marq.) v. Coyney, '? B. & C. 257 ; Woodyer v. Haddon, 5 Taunt. 125 : as to the persons, whether tenants or trustees, competent to dedicate, R. v. Leake, 5 B. & Ad. 469 ; Wood v. Teal, Id. 454; R. v. Barr, 4 Camp. 16 ; Harper v. Chariesworth, 4 B. & C. 574. Note 188. — The presumptions which respect both pubhc and private ways, as presented upon English authority, are tery fiiUy collected {post) ; and, for want of a proper head here, we shajl reserve the Amerioau authorities as to the former for that place ; inserting now those only which relate to private ways, with the English cases on the same subject reported since our author wrote ; and perhaps some others not cited by him. In a recent Massachusetts case, a way was prescribed for in pleading, as appurtenant to a wood lot ; and the prescriptioa was maintained by proof of forty years' user ; and held that the way would pass as appurtenant to the lot by a conveyance neither mentioning the way nor containing 'the usual words, "privileges and appurtenances." Kent v. Waite, 10 Pick. 138. Twenty years' peaceable enjoyment or possession of a private way. Confers a presumptive "title. Per Lord Mansfield, C. J., in Folkes v. Chadd, 3 Doug. 343. The inference fi-om such a long user is, that the right passed to the person using it by a regular grant. Livett v. Wilson, 3 Bing. 1 IB > S. C, 10 Moore, 409 ; per Abbott, 0. J., in Doe dem. Putland v. Hilder, 2 Barnw. & Aid. 791 ! Wright V. Freeman, 5 Bar. 4; John. 497 ; Hill v. Crosby, 2 Pick. 466 ; Commonwealth v. Low, 3 Pick. 408 ; per Wilde, J., in Coolidge v. Learned, 8 Pick. 509. And evidence of the use of a way for a sufficient length of time, e. g. forty years and upwards, by the owners of a farm, and any other persons having an occasion to use the way, will sustain the allegation of a prescriptive right in the owners of the farm, notwithstanding it shows a right by custom in other persons. Kent V. Waite, 10 Pick. 188. A town may, by user, like an individual, acquire a private way for Itself, under peculiar ciroum. Stances; though mot for the public at large. M'Clure v. Hill, 2 Rep. Const Ct. 423, 424, per Cheves, J. Evidence to rebut the inference of a grant, sought to be raised, is, of course, admissible. It may be shown that the usage suffered interruption (Hartwright v. Badham, 11 Price, 383, 394, 397 ; Sargent r. Ballard, 9 Pick. 251) ; or was allowed by tiie mere neglect, pennission or indul- gence of the owner (per Richards, Ch. B., in Hartwright v. Badham, 11 Price, 397); or had formed the subject of perpetual contest (Livett v. Wilson, ut supra) ; or it may be accounted for on the ground Of leave, fa^ror or Otherwise, than as a claim or assertion of right. Per Le Blanc, J. SEC. 1I.J And of Presumptions. 651 WitTi respect to the presumption of incorporeal rigbts from usej not in- cluded within the statute, many presumptions may continue to be formed in Campbell v. "Wilson, 3 East, 294, 302 ; Lawton v. Rivers, 2 M'Cord, 445 ; Hill v. Crosby, 2 Pick. 466 ; Sargent v. Ballard, ul supra. So it may be shown that the party was merely allowed to pass like other neighbors, without being confined to any particular track. Turnbull v. Kiversi 3 M'Cord, 131 ; Lawton v. Elvers, 2 Id. 455, 451. So the obstruction of the way, for only one year of the time, will defeat it. Cuthbert v. Lawton, 3 M'Cord, 194. So it may be shown that the way began short of twenty years before the trespass (the act of user) complained of (Strout v. Berry, '7 Mass. Rep. 385); or short of twenty years before the action commenced. Gayetty v. Bethune, 14 Mass. Rep. 49, 53. So, that the identity of the way is not fixed; Mt that the user has been fluetuatuig and ambulatory ; changing with fields and fences (Alban V. Brownsall, Telv. 163 ; Jones v. Peroival, 5 Pick. 485 ; Lawton v. Rivers, 2 M'Cord, 445, 451 ; TumbuU v. Rivers, id supra) ; or has been interrupted at any time within the twenty years (Odiome v. "Wade, 5 Pick. 421) ; as where the owner of the soil plowed up the way, declaring that there was none, though the claimant of the way was not present. Barker v. Clark, 4 N. H. Rep. 380. So where he has not used the way for a long time. Comstock v. Tan Dusen, 5 Pick. 163. The right of way should have been exercised with the owner's knowledge, or he cannot be affected. Sargent v. Ballard, ut supra. The public use of a way for Several years, for aH purposes except carrying coals, is either a limited dedication or no dedication at all ; and, if none, it is at most a license revocable ; and so it would be trespass to carry coals along the way, after notice from the owner of the soil not to do so. ' Marquis of Stafford v. Coyney, 1 Bamw. & Cress. 25T. An agreement for a way by parol is a mere license, revocable at the pleasure of the grantor. Wright V. Freeman, 5 Har. & John. 461, 478. A right of way can be only by prescription or grant at the common law. Id. The use, by a man, of a way to his land for less than twenty years'; When his land is confiscated and granted to another, who continues the use till both make out the time ; will not warrant the inference, because of the interruption by the confiscation. Though it would be otherwise if the twenty years were made out by the successive enjoyment of ancestor and heir, vendor and vendee, &c. Sargent v. Ballard, ut supra. Non-user for a long time (probably twenty years) affords a presumption that a right of way has been released or surrendered. Per Abbot, C. J., in Doe ex dem. Putland v. Hilder, 2 Bamw. & Aid. 191 ; and per Littledale, J., in Moore v. Eawson, 3 Bamw. & Cress. 339 ; per Lord Erskine, C, in Hilliary v. Waller, 12 Ves. 265 ; Wright v. Freeman, 5 Har. & John. 46'?, ill ; Hoffman V. Savage, 15 Mass. Rep. 130, 132, per Cur. Indeed, this point was directly adjudged in Mai^. land in 1823. Wright v. Freeman, '5 Har. & John. 46'7, 476, 4'lT. But not, if the non-nsei'be short of twenty years. Emerson v. Wiley, 10 Pick. 310. Nor if reserved or granted expressly^ and so not dependent on user, would a non-user of twenty years work a loss of the Way. White V. Crawford, 10 Mass. Rep. 182. But see Wright V. Freeman, supra, contra. So where a way had existed from 1769 to 1800 ; but after that, for more ifhan twenty years, had not been used much, and been obstructed three or four times in different years, and some wide deviations made from Its original course ; yet held that it was not destroyed, as it had before been perfected by twenty years' possession. Cuthbert v. Lawton, 3 M'Cord, 194. Nor will the exclusive use and occupancy of the land by the owners, for agricultural purposes, destroy the claim ; for this may not he inconsistent with the right of way. If the latter be entirely interrupted for twenty years, that will work a bar. Wright v. Freeman, 5 Har. & John. 467, 475, 476. An agreement by parol to discontinue an old way is but a license, and may be revoked. Id. If there be a written grant, and this appear on the trial, it must be produced of otherwise proved, though the user have been more than twenty years ; for perhaps the grant may show a qualification of the proposed way. Boynton v. Bees, '8 Pick. 329, 333. So the lapse of time, in order to form a presumptive bar of an action to try the rigW; of advowson, must be very great ; and, in general, strengthened by other circumstances. St. 1 Mar. Sees. 2, c. 5; 3 Bl. Comm. 261; Bedle v. Beard, 12 Rep. 4; Powel v. Milhank, Cowper, 105. note ; Gibson v. Clarke, 1 Jac. k Walk. 169, 162 ; 6 Tes. 673 ; per Eyre, C. B., 1 Jac. k Wafts, 161 ; per Ld. Eldon, 8 Tes. 130, note. 652 . Of Presumptive Evidence, [CH. X. by juries, and will, it is conceived, be recommended to them in deference to legal authority, and in consonance with the justice of a case, though contrary to their opinion of the real facts ; as, when difficulties are pre- sumed for regulating the right to pews or vaults.(l) The like may be said of copyhold customs,(2) and the liability to repair fences.(3) Various other instances might be added, resting as well upon modern as immemo- rial title.(4) (1) Rogers v. Brooks, cited 1 T. R. 431, n. ; Pettraan v. Bridger, 1 PhiUim. 323 ; FuUer v- Lane, 2 Adams, 425 ; Walter v. Gunner, 1 Hagg. 314; Com. Dig. tit. Bglise; Byerley v. Windus, 5 B. & 0. 1 ; Mainwaring v. Giles, 5 B. i A. 360 ; Stoolc v. Booth, 1 T. R. 430 ; Griffith v. Matthews, 5 T. R. 2S6. (2) A single entry upon the rolls may afford evidence from which a copyhold custom may be presumed. Doe d. Mason v. Mason, 3 Wils. 63. (3) Boyle v. Tamlyn, 6 B. & C. 329 ; Cheetham v. Hampson, 4 T. R. 318 ; 2 Wms. Saund. 285, u. 4 ; 290, n. 1 ; Booth v. Wilson, 1 B. & A. 59 ; Churchill v. Evans, 1 T. R. 529 ; Tin. Ah- tit. Fences ; Com. Dig. tit. Action on the Case for Negligence. (4) Note 189. — Beside the several easements enumerated by our author, there are various others acknowledged by the law ; and which look, for the evidence of their existence, to the like ground of presumption. 1. Thus we shall see directly, that a right of fishery in the land of another may arise from user. 2. Again ; where the acknowledged proprietors of a fishery, and their lessees, had, for above twenty years, publicly landed their nets on land belonging to another, and had, at various times, repaired and improved the landing place ; it was held that the jury might presume a grant of the right so exercised, though there was no direct evidence in the case, to show that the owner of the land knew of the encroachment. Gray v. Bond, 2 Brod. & Bing. 667 ; Hart v. Chalker, 5 Conn. Rep. 311, S. P. But, to warrant this presumption, the right must be exercised by certain known persons, who can be clearly designated aa taking the presumptive grant, and who have exercised it not only without interruption, but exclusively of the owner, and also accompanied such exercise with a claim of title. Otherwise, and especially where there is a general usage of the country for every person- so to occupy this and the like places, the use would more naturally be referable to some other cause than a grant. The place occupied must also, Uke a way, be definite in its limits. Nor is it any aid to the claim, that the town authorities have laid it off; for they, aa such, have no authority in the matter. These things were held of a landing ground for lumber on Eastern River, which had been occupied for more than twenty years by the inhab- itants of Pittson, being accessible to them through an ancient path or cartway. Bethum v. Tur- ner, 1 Greenl. 111. Tet there is no doubt that the right to a public or private landing place may be sustained by plain evidence of ancient, definite and exclusive usage. Id. ; Coolidge v. Learned, 8 Pick. 504, 509. Under what qualifications such evidence is to be received by us, was practically and very sensibly shown by Mellen, C. J., in Bethum v. Turner (1 Greenl. 115) ; and they are applicable to more than one description of easement. " Generally speaking, the cases in the books relating to this subject, cannot be safely applied to lands a great portion of which has never been improved; where the proprietors reside at a distance; where settle- ments are made on small portions of large lots, without the knowledge of the owners, or any claim of title on the part of the settler ; or where the usages of the country are such as to collect people near the margin of the river, for the more easy transportation or more ready sale of their lumber, and where the persona thus resorting have no intention to appropriate the banks of the river to any other than a temporary use, on account of the facilities thus furnished. In England where the decisions alluded to were made, the lands generally are under improvement, under the inspection of some landlord or his agent, where any encroachment on the land, or im- proper appropriation of it, must be known." And see the remarks of Duncan, J., on a kindred subject, in Wilson v. Stoner (9 Serg. & Rawie, 43), given also in note 190. SEC. II.] And of Presumptions. 653 3. Eights to open and ■work mines ; to dig clay or soil ; or to cut and carry away timber, on the land of another ; so, in the lord of a manor to make occasional approvements without the consent of the commoners, have been sustained upon the same principle of long and exclusive user. A grant or reservation may be presumed, accordingly as the circumstances point to either; simple adverse user in the land of another, inferring a grami ; but if such user be continued by a former owner of the land, after having conveyed to another, then a reservation. Stanley t. White, 14 East, 322, 336, 337, 342 ; Polkard v. Hemmett, 5 T. R. 417, note a ; Bateson v. Green, 5 T. R. 411. Upon ground somewhat similar, the Court of Errors presumed that the conveyance from a former owner had excepted a drain of ten feet wide for a collect. Bergen v. Bennett, 1 Cain. Cas. Err. 1, 2, 18, 19. And the presumption of a release or other discharge of these and the like rights (even though created by a written grant shown in evidence directly) wiU be gen- erated by long neglect or disuse. Said of a right to cut timber and graze, per Kent, C, in Ten Broeck v. Livingston, 1 John. Ch. Rep. 362. 4. Much the most important and difficult class of presumptive easements have grown out of the conflicting use of running water. This, presented in the form of brooks, creeks and rivers, is ap- propriated in a great variety of ways to domestic, agricultural and manufacturing purposes. A single and inconsiderable stream, perhaps, ranges through many leagues, touching or intersecting the lands of fifty or a hundred successive proprietors, affording to many of these, falls of water, and other facilities for manufacturing establishments. At this point the law declares that the natural purity and course and flow of the stream shall not be so changed or modified by the act of one, as to injure any other proprietor, or impair his natural advantages. The common wants of all must be subserved, and an advantage given to no one at the expense of any other. The civil law is not more strict than our own in this respect. " One cannot do anything to make the current of the water slower or more rapid, should this change be any way prejudicial to particular persons." Again ; " although one may divert the water of a brook or of a river, to water his meadows or other grounds, or for mills and other uses ; yet every one ought to use this liberty so as not to do any prejudice to neighbors who should have a like want and an equal right," Dom. Supp. b. 1, tit. 8, § 2, art. 11 ; 3 Kent's Comm. (2 ed.), 441. Even the strict doctrine of Pothier, cited at the last page, and slightly qualified by the learned commentator, would yet seem to be liieraUy supported by the two cases of Williams v. Morland, and Thompson v. Crocker hereinafter cited. The language of the common law is equally pointed : " Every man has a right to have the advantage of a flow of water in his own land, without diminution or alteration." Per Lord EHenborough, in Bealey v. Shaw, 6 East, 214. " The old course of the flood stream being along certain lands, it is not competent for the proprietors of those lands to obstruct that old course, by a sort of new water way, to the prejudice of the proprietor on the other side." Per Lord Chancellor, in Menzies v. Breadalbane, 3 Bligh (N. S.), 418. And such is the law of Scot- land. Id. " A stream of water is, at flrst, the property of each person through whose land it flows." Per Holroyd, J., in Cross v. Lewis, 2 Bam. & Cress. 686, 690. " Every proprietor has an equal right to use the water which flows in the stream ; and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors, who may be afleoted by his operations, no proprietor can either diminish the quantity of water, which would otherwise descend to the proprietors below, or throw the water back upon the proprietors above." Per Sir J. Leach, Vice-Chanoellor, in Wright v. Howard (1 Simons & Stuart's Reports, 203), in giving judgment on the very point thus stated. " Every proprietor has a right to the use of the water flowing in its natural current without diminution or obstruction. No proprietor has the right to use the water to the preju- dice of another. It is wholly immaterial whether the party be a proprietor above or below, in the course of the river ; the right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, flow to a proprietor below, or to throw it back upon a proprietor above. The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not." Per Story, J., in Tyler v. Wilkinson (1827), 4 Mason, 401, declaring these positions to be supported by a very strong and controlling current of authority. Again ; " mere priority of appropriation of running water, confers no exclusive use." Id. 401. In a late case (1832) in the King's Bench, the defendants, proprietors above, having appropriated most of the water of a small stream to the use of their factory, the plamtif^ a proprietor below, afterwards requiring for his own use the water thus diverted, for 654 Of Presumptive Evidetiee, [OH. s. some works of his, erected subsequent to the defendant's works, brought his action, showing that the previous appropriation of the water above, impaired the use of his works now newly set up below; a full and adequate supply of water not being afforded. A verdict being given for the defendants, by the direction of the judge, on the authority of what was said by some of the judges in Williams v. Morland {sv^dj, upon a motion for a new trial, the English cases and dicta were fully gone into on the argument; and the court took time for advisement. They finally granted a new trial, after reading, as their own opinion, that of Leach, T. 0., above stated ; and added : " We aU agree in the judgment thus delivered ; and upon the authority of that decision, and the reasoning of the learned judge, we are of opinion that the defendants did not acquire a right by their appropriation, against the use which the plaintiff afterwards sought to make of the water." Mason v. HUl and others, 3 Barnw. & Adolph. 304. The same point was solemnly decided by the Supreme Court of New Hampshure, two years before (1830), saying: "Everyman has a right to the use of the water flowing in a stream through his own land ; and if any one divert the water from its natural channel, or throw it back, so a.s to deprive him of the use of it, the law will give him redress." Gilman v. Tilton, 5 N. H. Rep. 231 ; King v. Tiffany, 9 Conn. Eep. 152, S. P. The Supreme Court of New Tork have recently placed this doctrine on the plainest and strongest ground. The defendant having, on his side of the stream, a large surplus of water for his mills, the plaintiff, who had not enough, claimed the right to divert a portion, but no more than was necessary, to his miH on the other side, leaving still sufficient for the defendant, with a tight dam, and prudent use of the remaining water. For this purpose, the plaintiff erected a dam, above the defendant's mills. The defendant tore away the dam ; and for that the action was brought. The court held, that the action was not sustainable. They say, " the defendant was entitled to all the natural advantages which the place he occupied afforded him. We cannot take from one party a rigM for the sake of the convenience of another. A person through whose farm a stream naturally flows, is entitled to have the whole pass through it, though he may not require the whole, or any part of it, for the use of machinery. Upon any other principle, this right to the stream, which is as perfect and indefeasible as the right to the BoU, would always depend upon the use, and the party who did not occupy the whole for special purposes, would be exposed to have the same diverted by his neighbor above him, without remedy." Crocker v. Bragg, 10 Wend. 260 ; and per Nelson, J., who delivered the opinion of the court, 264, 265. Many other cases are directly or remotely to the same effect. King v. Tiffany, 9 Conn. Rep. 162 ; Weld v. Hornby, 1 Eaat, 195 ; per Hale, J., in Cox y. Mathews, 1 Ventr. 237 ; Prescott v. Phillips, cited arg. in Bealey v. Shaw, 6 East, 213 ; S. C, 2 Ev. Poth. 136 ; BeisseU v. Shell, 4 DalL 211 ; Colburn v. Richards, 13 Mass. Rep. 420 ; Cook v. Hull, 3 Pick. 269 ; Brown v. Best, 1 Wils. 1'74 ; Gardner v. Newburgh, 2 John. Ch. Rep. 162, 164 ; where the ancient authorities are- cited by Kent, 0. ; Belknap v. Belknap, Id. 463 ; Merritt v. Parker, 1 Coxe's Rep. 460, 466; Coalter v. Hunter, 4 Rand. 58; Hammond v. Puller, 1 Paige, 197; Hutchinson v. Coleman, 5 Hsilst. 74, '78 to 81, per Ford and Drake, J's; Campbell v. Smith, 3 Halst. 139, 149; Barron v. Baltimore, 1 Am. Jurist, 203; 3 Kent's Comm. 439, (2d ed,); Id. 446, 441 ; Shury v. Piggott, 3 Bulstr. 339, per Whitlock, J. ; Bent v. Wheeler, 3 Dane's Abr. 16 ; Eeid v. Gifford, Hopk. 416 ; Anthony v. Lapham, 5 Pick. 116 ; Sackrider v. Beers, 10 John. 241; Williams v. Gale, 3 Harr. & John. 231; Howell v. M'Coy, 3 Rawle, 256; Jennings v- Sherwood, 8 Conn. Rep. 122; Sumner v. Tileston, 1 Pick. 198 ; Wilson v. Myers, 4 Hawks, 13 ; Gavit's Adm'rs v. Chambers, 3 Hamm. Rep. 495. The reader's attention should be more particularly turned to the late case of King v. Tiffany, cited mpra, from 9 Conn. Rep. 162, where the leading opinion, per Williams, J. (163 to 110), ably sustains and clearly expresses the above doctrines. The defendant raised his dam below ■ at first it did not affect the plaintifTs wheel above; but the latter having occasion to lower his wheel, the back water from below then clogged it. Held, tliat an action lay. Such, prima facie, are the rights of riparian owners ; and we have been thus particular, because it is not to be disguised that the doctrines of exclusive right founded on mere priority of appro- priation, received, at one tune, strong countenance from dicta of learned judges, if not by direct adjudication. Bealey v. Shaw, 6 East, 208, 211, 216 to 219 ; WUliams v. Morland, 2 Barnw. & Cress. 919; per Holroyd, J., ui Saunders v. Newman, 1 Barnw. k Aid. 261, 262; per Kent, C, in Van Bergen v. Van Bergen, 3 John. Ch. Rep. 288 ; Hatch v. Dwight, 11 Mass. Rep. 289; Bigelow V. Newell, 10 Pick. 348. And in the anxiety of courts to maintain the conourrent SEC. II.] And of Presumptions. 655 erection and use of mills, the claim to the natural flow seemed to rest on very uncertain ground. See Piatt V. Johnson, 15 John. Rep. 215; and Merritt v. Brinkerhoff, 1^ Id. 306; PaJiner v. Mulligan, 3 Cain. Rep. 301 ; Martin v. Bigelow, 2 Aik. 184. Priority of appropriation, it seems, is recognized aa securing an exdusjve right in mill owners, by a positive law of Louisiana. The first erected mill takes an adequate supply of water from above, and is entitled to be kept clear of back water from below, upon the mere circumstance of its being first erected. Aside Itom this positive provision, the law of that state would be the same as the common law. Boatner v. Henderson, 5 Mart. Lou. Eep. (N. S.), 186, 188 to 190. No doubt that, in the exercise of the common right, the water above and below must be more or less affected, as by diminution of quantity, evaporation, absorj)tion, retardation, acceleration, &c. But these things are to be tolerated, so long as they work no mischief. Per Story, J., in Tyler v. "Wilkinson, a6i supra ■ Brown v. Best, 1 Wils. 114 ; "Weston v. Alden, 8 Mass. Rep. 136 ; Bent V. "Wheeler, 3 Dane's Abr. 16. The moment mischief ensues to another, an action lies ; as if it injure the banks below (Williams v. Morland, 2 Bamw. & Cressw. 910) ; or throw back the water upon the plaintiff's wheel. Saunders v. Newman, 1 Bamw. & Aid. 258. But a small, an imperceptible or insensible injury (as it is variously expressed), arising from the use of the water, is said not to form the ground of an action ; for de minimis non cwrai lex. Alder v. Savill, 6 Taunt. 454 semb. Quere. 3 Kent's Comm. (2 ed.) 440, 441 ; per Story, J., in Tyler v. "Wilkinson, uM supra; Palmer v. Mulligan, 3 Cain. Eep. supra; Piatt v. Johnson, supra; Merritt v. Brinkerhofi; supra; "Weston v. Alden, 8 Mass. Rep. 136; Bent v. "Wheeler, 3 Dane's Abr. 16; Alexander v. Kerr, per Gibson Ch. J., 2 Rawle, 88, 89. In the latter case, Gibson, C. J., sug- gests that the distinction lies between the injury being proximate or remote. If the former, an action lies for any change in the state of tlie stream ; for it directly touches and acts, on another's property ; but consequences, though great, if remote and affecting the stream generally, and per- haps greater numbers, are to be tolerated ; as where the injury arises from necessary consump- tion, evaporation, or an irregularity in the flow by retention. He cites Shrunk v. The President, kc. of the Schuylkill Navigation Company (14 Serg. & Rawle, 11, 14), which was an action- for obstructing the passage of fish by a dam. Large rivers are, however, public property in Penn- sylvania, even above the flow of the tide. See infra. Yet several of these last cited cases ap- pear to present real substantial injuries, which it would seem difficult to get over within the modern cases there cited. The injury was obvious in Piatt v. Johnson (supra), where the upper mill occasionally dammed back the water, and by checking the flow, stopped the lower mill for days. The safer rule would seem to be, as laid down by a well considered modem case, that if the plaintiff sustains the slightest perceptible inconvenience, as by throwmg back the water upon hia wheel at high flood only, though in a triflmg degree, the action lies. The court say, ""We do not see how he can be refused his compensation because his damage was small ; and we should feel at a loss to fix the amount of injury above which there should be a right of action, and below it none." Thompson v. Crocker, 9 Pick. 59, 61. The above case of Shrank v. The Presi- dent, &o., of the Schuylkill NavigatioiEi Company, certainly goes very far to establish the distrac- tion set up by Gibson, Oh. J., supra, in Alexander v. Kerr. The same distinction was much considered, and greatly qualified, in Lady Hamilton v. The Marquis of Donegal, 3 Ridgw. Irish P. C, 261 to 328. The case passed from the Court of Exchequer, where it was originally tried through the Court of Exchequer Chamber, and thence to the House of Lords. The distinction finally settled was, that the ordinary means of catching fish in a lower fishery, as by nets rods &c., though it diminish the value of the fishery above, shall not be considered an injury ■ but if by erections below, the fish be prevented from going up, this is an injury for which an action lies. See pp. 323, 324, 325, where the Lord Chancellor sfates the rights of the two owners very clearly. The two conflicting fisheries were on the river Barni, and extended through several counties. And note ; this case may not directly conflict with the above Pennsylvania cases last referred to ; for the river Bann here in question is treated as private property in respect to the fisheries. Otherwise, we have noticed, as to the SchuylkUL Per Tilghman, Ch. J. 14 Serg. So Eawle, 18, 19. And see ante, note 111. It is safe to say that a mere theoretical injury shall never be a ground of action. Thompson V. Crocker, supra. Yet, where the ground of one man is flooded by another, though it be in the least possible degree, the law implies damage ; and in an action, nominal damages, at least, must be given. 656 Of Presumptive Evidence, [CH. 2. Pastorious v. Fisher, 1 Rawle, 21, 28, and Alexander v. Kerr, cited at the last page by Gibson, J- The last case (reported 2 Eawle, 83), is very strong. The owner above had acknowledged the flow to be beneficial to him, and stood by silently and seen the mill below sold, without uttering a word of complaint ; yet he was allowed his action. See per Gibson, Ch. J., Id. 88, 89. As to the rights of repair by one of two men, owning each his mill at each end of a common dam, see Boynton v. Kees, 9 Pick. 528 ; and that one must not use water at his mill above, to which he has right, wantonly, unnecessarily, and with intent to injure the proprietor's miU below, see Twiss v. Baldwin, 9 Conn. Rep. 291, 305, 306, et seq. The above arrangement of authorities having enabled us to see (and, we trust, clearly) what are, prima fade, the common rights of various settlers on the same stream, and to what extent they may be exercised with impunity, it follows that if any one would go beyond this, he must have the assent of those who are interested. This may be by grant or license ; and even a parol Ucense is good, if not revoked before the party avaUs himself of it ; such an executed hcense, even in the land of another, being (as is said) not within the Statute of Prauds. See 3 Kent's Comm. (2d ed.) 452, 453, and the cases there cited. But what is more directly material to the head of evidence upon which we are annotating ; almost every one of the cases above cited in respect to the use of water, agree, in the very next breath, that an exclusive adverse enjoyment of the water in any particular manner, for twenty years (or other time limiting ejectments in the kingdom or state where the question arises, Alex- ander V. Kerr, 2 Bawie, 83, 89), raises the presumption of a grant or license. And here it makes no difference to what extent, or in what manner such exclusive use may injuriously affect others, whether by corrupting, impounding, crossing, diverting, or damming the water ; unless, indeed, as we shall hereafter see, the act amount to a public nuisance. To this there are many cases beside those already noticed. Pinch v. Eesbridger, 2 Vern. 390 ; S. C, by the title of Ld. Guernsey v. Rod'oridges, Gilb. Eq. Rep ; Bush v. Western, Preo. Ch. 530 ; Balston v. Bensted, 1 Campb. 463; Belknap v. Trimble, 3 Paige, 577 ; Stiles v. Hooker, 1 Cowen's Rep. 267; Cook V. Hull, 3 Pick. 269 ; Strickler v. Todd, 10 Serg. & Rawle, 63, 68 ; per Rogers, J., in Read v. Goodyear, 17 Serg. & Rawle, 350, 353 ; Hazard v. Robinson, 3 MasOn, 272 ; Manning v. Smith, 6 Conn. Rep. 289 ; BuUen v. Runnels, 2 N. H. Rep. 255 ; Ingraham v. Hutchinson, 2 Conn. Rep. 684; and Sherwood v. Burr, 4 Day, 244, overruling Howard v. Mason, 1 Root, 537 ; Baldwin v. Calkins, 10 Wend. 167 ; per Duncan, J., in Cooper v. Smith, 9 Serg. & Rawle. 26, 33. Let us see a few illustrations. One was where the watercourse had run through the defend- ant's to the plaintiff's land for sixty years, but was then diverted by a sluice. Bush v. Western, Prec. Ch. 530. And the plaintiff having a watercourse cut through another's ground, where the water ran in pots for more than twenty years, and it being threatened to break it up (Lord Guernsey v. Eodbrjdges, uJ supra), it was said by the Lord Chancellor (Gilb. Eq. Rep. 4) : " Sup- pose two men front a river ; each has not his own ground only, but the other's, between him and the water. So they cut through each other's ground for water, and this continues twenty years ; I will presume an agreement." So where a spring of water has been occupied for twenty years at a given height, no adjoining owner has a right to cut the ground so as to diminish it. Ad- judged where the water for the plaintiff's bath had been let off by a stone quarry and drain of the defendant on the adjoining lot. Balston v. Bensted, 1 Campb. 463. And see Bergen v. Bennett supra. So where the defendant had flowed the plaintiff's land above, by a dam below, for twenty years. Stiles v. Hooker, 7 Cowen's Rep. 266; Russell v. Scott, 9 Cowen's Rep. 279. Admitted in Wright v. Howard, 1 Sim. & Stu. 190, 203, per Sir J. Leach, V. C. So one may acquire a riglit in the same time to diminish the quantity o( water which descends on the proprietor below. Admitted in Wright v. Howard, 1 Sim. & Stu. 1 90, 203, per Sir J. Leach, V. C. So of a right to use a spring in another's land, or to a flow of water from it through the plaintiff's land. Tate v. Parrish, 7 Monroe, 325, 327. So of a right to a free flow at the tail of the plaintiff's mill (Saunders v. Newman, 1 Barnw. & Aid. 258) ; or a right to draw water from his flume for a full- ing mill below. Mitchell v. Walker, 2 Aik. 266. But the defendant's enjoyment must be exclusive, continuous, and adverse, so much so that, on a defence against a claim for land, it would satisfy the Statute of Limitations. Alternate enjoy- ment, the defendant now using the land for his pond, and now the plaintiff for agricultural pur- poses, will not raise the presumption. Shumway v. Simons, 1 Verm. Rep. 53, 67. But short of twenty years will not raise the presumption. Tyler v. Wilkinson, 4 Mason, 401, SEC. II.] And of Presumptions." 657 402 ; per Richardson, C. J., in Oilman v. Tilton, 5 K H. Rep. 233. And this -was held even ■where the owner, being flowed by the water of a mill, yet stood, and silently saw it conveyed to the defendant. Alexander v. Kerr, 2 Rawle, 83, 89. Tet " there is no doubt that the use of water in a particular manner, for a less period than twenty years, and even an interrupted use, may be evidence of a right, to be weighed among other evidence, by ajury." Said per Richard- son, J., in Gilman T. Tilton, 5 N. H. Rep. 233 ; who cites 5 East, 215 ; 4 N. H. Sep. 14, 15 ; Wheaton, 109, 110, aad 4 Stark. Ev. 1216. The time having fully elapsed, some cases are so strong as to make the inference a presump- tion Juris et dejv/re. Tyler v. Wilkinson, 4 Mason, 397. And though other cases do not go so far; but direct the matter to be left to the jury (see note 180, and per Wilde, J., in Ooolidge v. Learned, 8 Pick. 509) ; yet where the fact of adverse enjoyment for twenty years ig plain, or is found by the jury, the main current of the cases will be found substantially to accord with Tyler v. Wilkinson. And see 3 Kent's Comm. (2d ed. ) 445. After the prior occupant has enjoyed for full twenty years, in a particular mode, so as to raise the presumption, he is entitled to maintain his possession to an extent commensurate with the enjoyment. Saunders v. Newman, 1 Barnw. also, Mede v. Earl of Bandon, 2 Dow, 268. Indeed, the common circumstances of payment and acknowledgment are mentioned in almost every case cited in this note. So, that the land was occupied by a mere naked possessor, not claiming under the mortgagor, is a circumstance to rebut the presumption of payment ; and a statute foreclosure and sale by advertisement in New York, though merely ex parte, and though thirty-one years after the money fell due, is a conclusive answer to the bar. Jackson ex dem. Mackay v. Slater, 5 Wend. 295. So, that the mortgagor became bankrupt, and therefore unable to pay. Stewart v. NiehoUs, 1 Tamlyn, 3 07. In one case, where the defendant admitted the mortgage debt had not been paid, but disputed its original existence ; the claim being very old, the Court of Chancery, on the principle of dis- couraging stale demands, presumed that the debt never existed. Christophers v. Sparke, 2 Jao- & Walk. 223. 8. On the other hand, by analogy to the Statute of Limitations barring a right of entry after twenty years' adverse enjoyment, a possession for that length of time by the mortgagee, without account or acknowledgment of an existing right to redeem, forms a presumptive bar to the equity of redemption. Pearson v. Pulley, 1 Cas. Ch. 102 ; Clapham v. Bowyer, 1 Ch. Rep. 206 ; White V. Ewer, 2 Tentr. 340 ; Jenner v. Tracey, 3 P. Wms. 287, note i ; Knowlea v. Spencer, 1 Bq- Cas. Abr. 315 ; Heaton v. Hugell, 1 Barnardist. K. B. Rep. 272 ; Aggas v. Pickerell, 3 Atk. 225 >■ Anon., 3 Atkyns, 313; Poster v. Hodgson, 19 Vea. 184; Hodle v. Healy, 1 Tes. & Bea. 53Si Moore v. Cable, 1 John. Ch. Rep. 385 ; Demarest v. Wynkoop, 3 Id. 129 ; Hnghes v. BdwardB, 9 Wheaton, 489 ; Harkey v. PoweU, 1 Hawks, 17 ; Shepperd v. Murdock, 3 Murph. .2-18 ; Lamar v. Jones, 3 Har. & M'Hen. 328 ; per Parker, Ch. J., in Pomeroy v. Winship, 12 Mass. Rep. 520, 521; per Robertson, J., in Pitzhugh v. Croghan, 2 J. J. Marsh. 436; Slee v. The Man- hattan Company, 1 Paige, 48; Bunco v. Woloott, 2 Conn. Rep. 27 ; Saundejrs v. Hord;i Ch. Rep. 184; Ployd v.' Mansell, GUb. Bq. Rep. 185; Rakestraw v. Brewer, Moa. 189, 19/1 ; Prazer V. Moor, Bunb. 54; Barron v. Martm, 19 Ves. 326; Corbett v. Barker, 1 Anstr. 138; ■142; 143; , 8 Anstr. 755, 759; Belch v. Harvey, 3 P. Wms. 287, note 6; Reeks v. Postlethwaite, Coop. C. C 161 ; Bockford v. Close, cited 1 Bro. 0. C. 644 ; Proctor v. Gates, 2 Atk. 140. The twenty years are, of course, according to all the cases, to be computed from the time when- the moneys fall due, which makes the forfeiture at law. TUl that period, there ife: no power to redeem ; and the right againat which the statute runs cannot be said to have accrued.; It would seem that the same time is allowed before the equity of redemption of personal prop- erty would be barred, as of real estate. Lockwood v. Ewer, 2 Atk. 303 ; Mims v. Mims, 3 J. J- Marsh. 106; Harkey v. Powell, 1 Hawks, 17. The poaseasiou must be adverse, on a claim o absolute title, and so shown ; or a poaaession as bailee wiU be presumed. Mims; v. jMima, 3 J. J. Marsh. 103, 106. , ^ A bill filed (which answers to suit brought at law) before the lapse of twemty yeaie, wUl pre- vent the bar. But though a decree be obtained, twenty years more unexplained' delay will bar. St. John V. Turner, 2 Vem. 418. So, though a suit be commenced arjd Spending within the twenty years, if the answer do not admit, but deny the right, it must be, prooeedsd 'on ; and it seems that if it lie twenty years in such a case, the bar is complete. CottOTell v. Purchase, Cas. temp. Talbot, 61. A fortiori, a mere demand by the mortgagor, without process or acknowledg- ment, cannot he used to rebut the bar. Hodle v. Healy, 1 Ves. & Bea. 53«, 540. In adopting the Statute of Limitations, courts of equity take it with all its qualifications of dis- ability, such as infancy, coverture, absence beyond sea, &c. ; and where the time begins to run during such disability, they allow ten years after its removal. Proctor t. Cowper, .2 Vem. 377 ; Cornel v. Sykes, 1 Ch. Rep. 193 ; per Lord Keeper, in White v. Ewer; 2 Ventr. 340; per Lord King, in Jenner v. Tracey, 3 P. Wms. 287, note ; per Lord Talbot, in Belch v. Harvey, 3 P. Wms. 287, note; per Lord Bldon, in Poster v. Hodgson, 19 Ves> 184; per Sir T. Plnmer, in Hodle V. Healy, 1 Ves. & Bea. 539. So they hold (as at law) that where there is.na incapacity -when the time beginsitoirun, a sub- 680 Of Presumptive Evidence, \pjl.x. sequent incapacity ■nriU not prevent its progress, jiggas v. PiokereU, 3 Atk. 225 ; Anon., 2 Atk. 333 ; Floyd v. Mansell, Gilb. Eq. Rep. 185 ; Knowles v. Spenoe, 1 Bq. Gas. Abr. 315 ; S. Cj Mosel. 225 ; Stone v. Byrne, 5 Bro. P. C, by Toml. 209 ; St. John v. Turner, 2 Tern. 419. And see the argument of Kent, C, inDemarest v. Wynkoop, 3 John. Ch. Gas. 140 to 142. The time 'allowed is twenty years, where no disability exists. If i;here be a disability when the twenty years would begin, th^t is, when the righ^ accrues, the party shall have ten years to prosecute after the disability ceases ; so tljaf he may have thirty, forty, or fifty years, accordingly as the disability lasts, B,ut in, no case oa,n he haye mpre thaiji ten years after his disability rejnpved, unless the latter expire before the twenty years. So that he shall in aU cases have twenty years from the time of the right accruing, and ten years after disability gone, though the latter is not necessarily added to the twenty years. Doe v. Jesson, 6 Bast, 80 ; Gotterell v. Duj^ ton, 4 Taunt. 826; B,elch v. Harvey, 3 P. Wms. 287, note 6; Jaqkson ex dem. Swartwout v Johnson, 5 Cowen's Kep. 74. See 2 N. T. Rev. St. 395, §§ 16, It. Several disabilities too may exist when the right accrues, as infancy and coverture. These must ^11 be removed before the ten years begin to run. Jackson ex dem. Swartwout v. Johnson, 5 Cowen's Eep. V4; per Chambre, J., in Got-terell v. Button, 4 Taunt. 830; 1 Plowd. 375, But neither courts of law nor equity will allow of cumulative disabilities. Thus if infancy exist, when the right accrue^ and then coverture, though before infancy terminated, the first alone will be reckoned, and the Ijen years be counted from tha expiration of that. Jackson ex dem. Swart- wout V. Johnson, 5 Cowen's E,ep. 74 ; Demarest v. Wynkoop, 3 John. Gh. Rep. 129, 138 ; Doe ex dem. Francis v. Jesson, 6 East, 80, 84, 85 ; Eager v. The Commonwealth, 4 Mass. Eep. 182 ; Bush V. Bradley, 4 Day'g Rep. 298, and Bunpe v. Wolcott, 2 Conn. Rep. 27, overruling Eaton v. Sa,uford, 2 Day's Rep. 523, But in following the law, it is not necessary to say that the statute sh^ not run against a remainderman, or reversioner of the equity of redemption, till his estate comes iu by the expi- ration of the particular estate preceding it. This is so at law because no action will lie for him tiU that contingency arises. But in equity, he may file his biU to redeem in respect to his interest as a remainderman or reversioner, and need not wait as at law. And Blake v. Poster, 2 Ball & B^at. 565, 575, ei seq., which held the contrary, was, afterwards reversed in the House of Lords, in the session of 1823. Math. Presump. Bv. 334, note a. Therefore a similar decision lately made by the Exchequer in Cowne v. Douglass (1 M'Glel. & Tou. 321), is equally erroneous. Math. Presump. Ev. 333, note d. Beside, that case is put on erroneous ground by the barons. They take it that the bar goes on the presumption of a release firom lapse of time, which is re- pelled by the equity not being vested in possession in the plaintiff; whereas, aU the cases go most emphatically on the Statute of Limitations. The decision cannot be sustained in any view. Beside, it is directly contrary to a previous decision of Sir "Wm. Grant, M. R. A. D. 1812; Har- rison V. Hollins,' 1 Sim. &, Stu. 471. Several other cases are supposed to go on similar principles with the last. Aynsly v. Jlee, Dick. 249. See also per Byre, C. B., 1 Anstr. 138; Roscarriok V. Barton, 1 Gas. Ch. 217, 220 ; Reynoldspn v. Perkins, Ambl. 564 ; Woollaston's Case, cited 2 Gas. Ch. 62; Anon., 2 Atk. 333. A common case is an ouster or possession pf the wife's land adverse tp the rights pf her heir, cotnmenoing during her coverture ; than coming her death, and a descent tP her heir subject to her surviving husband's hfe estate as tenant by the oui'tesy. At law, the time will not run against the heir till the death of a tenant by the curtesy. Jackson ex dem. Swartweut v. Jphn- , son,,£ Cowen's Rep. 74. But it is Ptherwise if the est?i,te be an equity pf redemption ; for the , heir m^y file his bill to redeem, though he cannot have his action. Anon., 2 Atk. 333. An ex- ip^ption is, however, where the mortgagee enters, net as mortgagee, but in virtue of a title from .the husband independent of the mortgage; as if the husband sail hiw the equity of redemption i I, and he .enters as owning that, thus becoming both payee and payor of the interest money duijing lithe husband's life,' Cprbett v. Bai'ker, 1 Anstr. 138 ; S. C, 3 Anstr. 755. So that, iu such case, , the heir, or, if the wifp survive, she herself may file a bill to redeem within twenty years after the husband's death. Price v. Gopner, 1 Sim. & Stu. 347. The presumptive bar may be repelled by evidence of fraud, imposition, or. undue advantage iu the terms of the original Ipan ; as by restricting, or clogging, or narrowing any way the right to redeem, which should be left entirely open and general, and as broad as the rules pf equity re- quii'6 (Jaspn v. Byres, 2 Ca8. Gh. 33 ; Newppn^b v. Bpnham, I Vera. 7 j Or(i v. Smith, Sel Ch" SEC. II.] Presumj^tion of Payment. 681 Cas. 9 ; Hgward t. Harris, 1 Vem. 33 ; Id. 190; Bowen T. Edwwds, 1 Ch. Rep. 221 ; WiUett V. WinneU, 1 Vem. 488 ; Marks v. Pell, 1 Jolm. Ch. Eep. 594, 59,8, 599 ; ■Washburn v. Merrilla, 1 Day, 139) ; unless indeed Oje parties did not contemplate a mere mortgage, but a purchase subject to the restriction, and everything was fair and on Ml consideration. Moyer v. laving- ton, 1 P. Wins. 268; Mellerv. Lees, 2 Atk. 494; Goodman v. Grierson, 2 Ball & Be^t. 2'! 4, 278 i Taebburgh v. Eehlin, 2 Bro. P. C. by Toml. 265 ; Ootterell v. Purchase, Forr. 61. So it will rebut the bar or enlarge the time, where, by agreement at the time, the mortgagee ia to enter and possess, till paid by the profits, or a certain time beyond the day of payment. Marks y. Pell, 1 John. Ch. Rep. 594, 598, 599 ; Toth. 232 ; Ord t. Homing, 1 Yem. 418. The bar may ajso be rebutted by circumstances. Per Robertson, J., in Fitzhugh v. Oroghan, 2 J. J. Marsh. 436. Any act of the mortgagee showing that he holds as such, is enough. So stating or settling an account ; or even keeping an account of the rents and profits. Proctor T. Cowper, 2 Vern. 3'7'7 ; Anon., 2 Atk. 333 ; Lake v. Thomas, 3 Tes, 11 ; Fairfax v. Montague, cited by Lord Loughborough, 2 Ves. jun. 84 ; Campbell v. Beokford, 4 Tes. 414 See also a case before the master of the Rolls in 1192, cited at the bar, 3 Ves. 20, 21. But see per Sir W. Grant, 19 Ves. 333. Though preparing and delivering an account by the steward or general agent of the mort- gagee, without special authority, w}ll not have that effect. Barron v. Martin, 19 Yes. 321 ; S. C, Coop. C. 0. 189. Noticing the equity of redemption as subsisting in any legal instrument executed by the mortgagee, wiU let in the right to redeem ; and twenty years must again run to make a bar. Smart v. Hunt, 4 Ves. 418, note ; Price v. Copner, 1 Sim. & Stu. 331 ; Hansard v Hardy, 18 Ves. 455. See the facts stated in Hardy v. Beeves, 4 Ves. 466. See also Ord v. Smith, SeL Ch. Caa. 9 ; 3 Atk. 314, at the foot of the page ; Perry v. Marston, 2 Bro. C. C. 399 ; and Whiting v. White, 2 Cox's Ch. Bep. 290. So filing a biU of foreclosure (Palmer v. Jaekson, 5 Bro. P. C. by Toml. 281 ; and the case cited by Sir Joseph JekiU, M. R., in Ord t. Smith, Sel. Ch. Cas. 9) ; or agreeing with the mortgagor to purchase his equity (Conway v. Skrimpton, 6 Bro. P. C. by Toml. 181) ; or acknowledging it by letter expressly or impliedly (Hodle v. Healy, 1 Ves. A Boa. 536 ; see also Vernon v. Bethell, 2 Eden, 110) ; or even a parol acknowledgment of It. Perry v. Marston, 2 Bro. C. C. 391 ; S. C, 2 Cox's Ch. Eep. 295 ; S. C, Coop. C. C. 165, note; Reeks v. Postlethwaite, Coop. C. C. 161, 169, etseq. See 19 Ves. 333, per Sir Wm. Grant, M. R. But questioned 2 Cox's Ch. Bep. 300, and S. C, Coop. C. 0. 6. But the proof of these points must be full and unequivocal. Per Sir T. Plumer, Coop. 0. C, 169; Whiting v. White, 2 Cox's Ch. Rep. 290; S. C, Coop. C. C. 1 ; Reeks v. Postlethwaite, Coop. C. C. 161, 111, 112, and 19 Ves. 333. So the bar is done away, where the mortgagee submits to be iredeemed in his answer. Proctor v. Gates, 2 Atk. 140. So if he possess only part of the mortgaged premises, leaving the mortgagor to possess part. Eakestraw v. Brewer, Sel. Ch. Gas. 55 ; S. Q.,, 2 P. Wms. 511; S. C, Mosel. 189; Burke v. Lynch, 2 Ball k Beat. 426. But see Lake v. , Thomag, 3 V^. 22. The case of what is called a Welch mortgage (from its being used in Wales), that is to say, a mortgage with a clause that the mortgagee may possess and receive the rents and profit? in lieu, of interest, and that the mortgage shall be redeemable at any time (1 V^rn. 11 ; 2 Atk. 363 ; 1 Vem. 395, 411 ; 1 Ves. 406 ; 3 Atk. 280 ; 3 P. Wms. 361 ; HoweU v. Price, Prec. Oh. 423), is usually an exception fi-om the Statute of Limitations. 1 Ves. 406; 2 Atk. 363. Tet if the annual value be disproportionately high, an account may be called for. Eulthorpe v. Foster, 1 Vem. 416. And a subsequent covenant by the mortgagor to pay the principal, will bring the case within the law of common mortgages. Hartpole v. Walsh, 5 Bro. P. C. by Toml. 2,61. Another class of mortgages provides that the mortgagee shall enter and hold till he be satisfied his principal and interest by the rents and profits ; or by a conveyance in fee, with an agreement that he shall so hold. And these partake so strongly of the nature of Welch mortgages, that the mortgagee cannot compel, though he continue liable to a redemption. Tates v. Hambly, 2 Atk. 360 ; Ord v. Homing, 1 Vern. 419. Yet Lord Hardwioke admitted that should twenty yeara' possession elapse after satisfaction, the presumptive bar would attach. Tates t. Hambly, 3 Atl?. 362, 363. See also, Cloberry v. Lymonds, 2 Ch. Bep. 393, where the defendant claimed by extent under an elegit ; an interest to which Lord Harwicke, in Yates Y. Hambly, compared the estate taken by Hambly. A like opinion was strongly intimated by Lord Bldon, in Fenwick v. Beed, 1 Meri^. 114, 124, 125. See Marks v. Pell, 1 John. Qh. Rep. 598, 599, per Kent, C. 682 Of Presumptive Evidence, [CH. x. 4. All other sealed instruments or specialties are subject to the same doctrine of pre- sumptive paTment, satisfaction or performance, according to the nature of the obligation, as a, bond, e. g. a single bill (M'Dowell v. M'OuUough, 11 Serg. & Rawle, 51) ; a sealed agreement to pay for land (Jackson ex dem. Marvin v. Hotchkiss, 6 Cowen'a Bep. 401) ; an obligation to con- vey land (Barnet v. Emerson, 6 Monroe, 601, 608) ; a sealed lease and the rent due upon it (Bailey v. Jackson, 16 John. Eep. 210) ; or articles of agreement. Duke of Newcastle v. Cleyton, Pinch's Rep. 246 ; PhiUips' Ex'r v. Morrison's ijx'r, 3 Bibb, 105. So on a covenant against in- cumbrances, accord and satisfaction were presumed twenty years after breach. Jenkins v. Hop- kins, 9 Pick. 543. In New York, the presumptive bar of twenty years after action accruing on any sealed instru- ment, is adopted by statute (2 R. S. 301, § 48) ; repellable by part payment, or a written acknowl- edgment. 2 R. S. 301, § 48. In Maryland, twelve years is a statute bar, not avoidable even by payment or acknowledgment. Carroll v. "Waring, 3 Gill & John. 491. A fortiori does the doctrine extend to all securities, of a nature inferior to specialties. Lacon v. Briggs, 2 Atk. 105 ; Outerloney v. Earl Powis, Ambl. 231 ; DufBeld v. Creed, 5 Esp. Rep. 62 ; Anon., 6 Mod. 22. As to these, though the defendant omit to plead the Statute of Limitations, he may stiU defend on the twenty years' presumption of payment, in all cases where evidence of payment is receivable upon the general issue ; or collaterally without plea. One instance is an action on a note (Jackson ex dem. Sackett v. Sackett, 1 Wend. 94; DufBeld v. Creed, supra; Rodman v. Hoop's Ex'rs, 1 DaU, 85 ; Perkins v. Kent, 1 Root, 312 ; "Wells v. "Washington's Adm'r, 6 Munf 542 ; Daggett v. TaUman, 8 Conn. Rep. 168 ; but see Du BeUoix v. Lord Waterpark, 1 Dowl. & Eyl. 16, contra) ; another on a claim for damages assessed under a statute (Young v. Price, 2 Munf. 534) ; or on an account (Bass v. "Wilhams, 8 Pick. 187) ; and the court wiU, after twenty years, instruct the jury that they may presume a settlement of the account, and the balance paid. Id. 190. Sutherland J., in Jackson ex dem. Sackett v. Sackett (1 "Wend. 99), intimates that six years might be sufiSeient in cases of simple contracts. But no case has yet gone so far ; and such a rule would evade another, which requires the Statute of Limitations always to be pleaded in such cases. In this and the Uke cases, the presumption may be met and repelled by the like circumstances which are applicable to the like presumptions in respect to a bond. Daggett v. TaDman, 8 Conn. Eep. 168 ; Jackson ex dem. Sackett v. Sackett, 7 "Wend. 94. Note. AU this doctrine of pre- sumptive bar, in respect to simple contracts, stands rejected in England by the above case of Du Belloix V. Lord "Waterpark, on the ground that actions on such contracts are covered by the Statute of Limitations, which must govern alone. B. The same doctrine of presumptive payment extends to judgments ; in New York by statute, where it is conclasive, except on part payment, or a written acknowledgment (2 E. S. 301, §§ 46, 41) ; in other places (and before statute, in New York), by the common law, under which the presumption is qualified and flexible, as in oases of bonds. Curties v. Pitzpatrick, 2 Peak. N. P. Cas. 92 ; Plower v. Lord Bolingbroke, 1 Str. 639 ; "Willaume v. Gorges, 1 Campb. 217 ; Boardman v. De Porest, 5 Conn. Eep. 1 ; Kennedy v. Denoou's Ex'rs, 2 Const. Rep. 617 ; Cohen's Adm'r v. Thomson's Ex'rs, 2 Eep. Const. Ct. 146; Payne v. Dudley, 1 "Wash. Rep. 196; Herndon's Ex'rs v. Bartlett's Ex'r, 7 Monroe, 449, 450. In Blackett v. "Wall (3 Mann. & Ryl. 119, note, before "Wood, Baron, in the Court of Pleas at Durham), the defendant's poverty was allowed to repel the presumption of payment arising from the lapse of forty-eight years. 6. "Warrants of attorney to confess judgment are also gone, by presumption, after twenty years (Hulke V. Pickering, 2 Barnw. & Cress. 555), and in one case said eighteen years, unless a demand of the debt, and an acknowledgment, be shown. Clark's Ex'rs v. Hopkins, 7 John. Rep. 556. 7. The same presumption applies to decrees in equity. 2 R. S. supra ; Comber's Case, 1 P. "Wms. 766. So of statutes merchant, statutes staple, and recognizances. Lady Hatton v. Jay, 1 Ch. Rep. 117 ; Dennis v. Nourse, Id. 106 ; Popham v. Desmond, Id. 135 ; Burgh v. "Wolf, Toth. 258; Smith v. Rosewell, Id. 277; Abdy v. Loveday, Rep. t. Finch, 250. Though the time is not fixed by those cases, it is presumed, from analogy, that twenty years would create the pre- sumptive bar. Matthews on Presumptive Ev. 360. And see Middloton v. Shelly, 1 Lev. 198 ; Corey v. Corey, Eep. t. Pinch. 331. The ground on which the presumption may be repelled, is of course the same as that in respect to judgments; receipt of interest, acknowledgment of the SEC. II.] Presumption of Payment. 683 debt, prevention of execution by prior incumbrances, and (probably) the creditor's absence from the state. 8. So of annuities. Lying dormant for twenty years, they are presumed, not only in respect to ancient annual dues, but in whole, to have been extinguished by release, or otherwise. These being real estate (incorporeal hereditaments), the bar arises, by analogy, from the statute limiting an entry on lands. Smallman v. Hamilton, 2 Atkyn's Chancery Eeports, 11 ; Higgins v. Craw- ford, 2 V«s. jun. 571, cxmka. And see Southcot v. Southcot, 1 Ch. Rep. 108 ; Bales v. Proctor, 1 Ch. Rep. 144. See, also, Bonnington v. Walthall, 2 Ch. Rep. 219 ; though there is a case (Christopher, Duke of Albemarle v. Elizabeth, Viscountess Purbeok, Rep. t. Pinch, 252), where the presumption was denied of an annuity fixed on land by way of rent charge, of which no demand had been made for thirty years. The deficiency of time short of twenty years may be made up, it seems, by auxiliary circumstances, as in other cases. See Aston v. Aston, 1 Ves- sen. 264, 267 ; Cupit v. Jackson, M'Clel. 495 ; Bigg v. Roberts, 3 Carr. & Payne, 43. Whenever the right to the annuity itself is not defeated, all arrears are recoverable without the limitation of six years, which prevails in certain cases of account for rents and profits of land (as in Reade V. Reade, 5 Tes. 744, and see also 6 Ves. 215, opinion of M. R.) That the account extends to the whole was held expressly in the Exchequer Chamber. Cupit v. Jackson, M'Clel. 495. And see Aston V. Aston, 1 Ves. sen. 264, 267, and Wynn v. 'Williams, 5 Ves. 130. In the last case it is said the six years limitation has noapplication to an annuity. And see 2 Ves. jun. 571, 572, per Ld. Ch. Loughborough. It seems to stand on the same footing with our rent reserved by indenture. See BaUey v. Jackson, 16 John. Rep. 210. And as to the body of the annuity, the presumption is liable to be met by aoknowledgnient, &c., as in case of a bond. Wynu v. Williams, 5 Ves. 130, 134. Relationship, large expectations from the grantor, who was an old man peremptory with his relatives and very attentive to his pecuniary concerns, were allowed as circumstances against the presumption of a release, in Bigg v. Roberts (3 Carr. & Payne, 43). And no pre- sumption was allowed against a supernumerary officer suing for his half pay. Commonwealth v. Lifly's Adm'r, 1 Leigh, 525. 9. An annuity to a wife for pin money is presumed to have been paid or received in consid- eration of maintenance, during every year she resides with her husband. 1 Ves. sen. 267 ; OfHey V. OfBey, Prec. in Ch. 26 ; Thomas v. Bennett, 2 P. Wms. 341 ; Ridout v. Lewis, 1 Atk. 269. And so of the income of any fund settled to her separate use, where she suffers her husband to receive and appropriate it. Powell v. Hankey, 2 P. Wms. 82, and note by Cox, Id. 84. Otherwise if they have lived separate without any distinct and particular allowance to her. 1 Ves. sen. 267. And so if she be insane ; for she is then incapable of waiving her right. See Brody v. Barry, 2 Ves. & Bea. 36, 39. Thus it will be seen that the cases of pin money and the income of a fiind, do not go on length of time, but on other circumstances. See 1 Ves. sen. 267. 10. The presumptive bar, or rather extinguishment by unexplained delay, also applies to por- tions charged on real property, though no precise time has yet been fixed by the cases. Stand- ish V. Radley, 2 Atk. 177. This may be repelled by admission express or implied of its being due, as in case of a bond or annuity, &c. (Barrington v. O'Brien, 1 Ball & Beat. 173) ; and, it is presumed other circumstances appUcable to like cases. It is deduoible from Earl of Pomfret v. Lord Windsor (2 Ves. sen. 472), that the portioner's ignorance of his right, or fraud in thos» interested to prevent its assertion, will also rebut the presumption. It seems to be rather conceded in Barrington v. O'Brien (1 Ball & Beat. 178, 179), that the twenty years would, in general, bar. 11. As to the presumptive bar of a legacy or distributive share, to which the general Statute of Limitations in many places does not apply, see Thomas v. White, 3 Litt. 182 ; Joe v. Hart's Ex'rs, 2 J. J. Marsh. 349. No certain time could, in the nature of things, be adopted. See Heroy V. Dinwoody, 4 Bro. 0. 0. 257 ; Gist v. Cattell's Heirs and Representatives, 2 Dessauss. Bq. Rep. 53. Forty years, with other circumstances, were allowed as a bar (Jones v. Turberville, 2 Ves. jun. 11) ; and it is said that thirty-five years lapse of time alone will be sufficient. Pickering v. Stamford, 2 Ves. jun. 272. But see Tate v. Greenlee's Adm'rs, 2 Hawks, 486. And where the claimant received an order from the legatee on the executor for the amount of the legacy, he was held barred by the statute. Myers v. Skrine, 1 Harp. Ch. Rep. 179. This being the case of a trust in the personal representative (per Kent, C, in Deoouche v. Savatier, 3 John. Ch. Rep. 206 ; Thomas v. White, 3 Litt. 177, 181, 182), which he may be longer or shorter in winding up j 684 Of Presumptive Evidence, [CH. 2. and legacies and distributive shares themselves being of such different characters, and their payment depending on so many contingencies, the claimants, too, often being femes covert or infants, it is obvious that, in general, no definite period could be adopted. Clifton v. Haig's Ex'rs, 4 Dessauss. Bq. Rep. 330, 341 ; Myers v. Skrine, 1 Harp. Ch. Bep. ITS. The oases acpord- ingly allow more or less time, and exhibit the exercise of a discretion quite arbitrary. Cusse v. Ash, Rep. temp. Finch, 316; Lewis v. Ld. Teynham, cited 2 Yes. jun. 13; Jones v. Turber- ville, 2 Ves. jun. 11; S. C, 4 Bro. C. C. 125 ; per Lord Alvanley, 2 Ves. jun. 280 ; Higgins v. Crawford, 2 Ves. jun. 571 ; Prince v. Heylin, 1 Atk. 493 ; Stackhouse v. Bamston, 10 Ves. 466, 467; Pickering v. Stamford, 2 Ves. jun. 212; Coster v. Murray, 5 John. Ch. Rep. 522; Foth- erby v. Hartridge, 2 Vern. 21; Arden v. Arden, 1 John. Ch. Rep. 313, 316; Winstanley v. Savage, 2 M'Cord's Ch. Rep. 43.5, 437 ; M'Cullough v. Montgomery, 1 Serg. & Rawle, 17 ; Wisner V. Ogden, 4 Wash. C. C. Rep. 631; Todd v. Mora's Adm'r, 1 Leigh, 457; Heald v. Heald, 5 Greenl. 387 ; Tate v. Greenlee's Adm'rs, 2 Hawks, 486 ; Falls v. Torrance, 2 Hawks, 490 ; Myers V. Skrine, 1 Harp. Ch. Rep. 179 ; Joe v. Hart's Ex'rs, 2 J. J. Marsh. 349. The presumptive payment of legacies and distributive shares rests on the same ground. Wisner v. Barnet, 4 Wash. C. C. Rep. 631. In general, legacies become due at twelve months after the testator's death (Marsh v. Hague, 1 Edw. Ch. Rep. 187, 188, and the cases there cited) ; and as to these, one would suppose that, in general, twenty years would be sufficient, as in case of debts founded on specialty. And gee Wood v. Briaiit, 2 Atk. 521; Mackdowell v. Halfpenny, 2 Vern. 484 ; Ellison V. Moffatt, 1 John. Ch. Rep. 46 ; Rayner v. Pearsall, 3 John. Ch. Rep. 578. Delay in ■winding up the estate, &c., may be urged to repel the presumption. Ward v. Reeder, 2 Har. & M'Hen. 145, 1 54. And see 2 Ves. jun. 14. The same doctrine prevails as to a proceeding in the Probate Court, under the statute of Maine, to discover the goods embezzled by an executor or administrator. O'Dee v. M'Crate, 7 Greenl. 467. In countries where a remedy at law is given for a legacy, or distributive share, by action in a court of law, and a limitation to the action fixed, as is the . case in New Tork, the hmitation must be adopted in chancery. Wisner v. Barnet, 4 Wash. C. C. Rep. 639, 640 ; Kane v. Blood- good, 7 John. Ch. Rep. 90 ; Souzer v. De Meyer, 2 Paige, 574. See 1 R. L., by Woodw. & Van Ness, 314, 315, §§ 19, 20, which gave debt, detinue or account for a personal legacy, or distribu- tive share, and Id. 166, § 6, which limits these actions to six years. On these statutes the cases last above cited proceeded ; but they do not extend to legacies charged on land, so as to give an action against the terre-tenant. Peletreau v. Rathbone, 18 John. Rep. 428 ; Souzer v. De Meyer, 2 Paige, 674. And to the latter, it' seems, therefore the six years limitation would not apply. Souzer v. De Meyer, 2 Paige, 574, 577. See the present statute (2 R. S. 114, § 9), giving actions for legacies, 4c., and) Id. 296, for limitations at law, and 301, for limitations in equity And see infra. Suc)i statutes, however, being out of the question, in general, courts look to the doctrines of the presumptive bar. Wisner v. Barnet, 4 Wash. C. C. Rep. 639, 640. An implied admission by simply pleading or setting up the Statute of Limitations, has been holden, in such case, to repel the presumption, the defendant not denying the substantial justice of the claim. Parker v. Ash, 1 Vern. 256. See also Anon., 2 Preem. 22, oa. 20, and Higgins v. Crawford, 2 Ves. jun. 571. 12. On the other hand, an executor cannot, after great delay, and other circumstances indicat- ing a waiver, maintain his biU against legatees, for advances made beyond assets in his hands. Robertson v. Archer, 5 Rand. 319. 13. A presumptive bar somewhat similar to that which runs against a mortgage, noticed swpra, prevails in tbe case of the vendor's equitable lien for the unpaid purchase money of an estate which he has conveyed. The adjudged cases, which are very old, range from about twenty-three to sixty years, as the time creating the bar. Hunter v. Davies, 2 Ch. Rep. 44 ; Heupert v. Benn, Rep. temp. Finch, 344; Bidlake v. Lord Arundel, 1 Ch, Rep. 93. As to the creation of this lien and its destruction fVom other causes than simple lapse of time, the student may consult the proper English authorities through Sugden's Law of Vendors, cli. 12. He wiU also find much on this subject in the American cases. Bayley v. Greenleaf, 7 Wheat. 46, 60 ; Carmiohael v. Abraham, 1 Dessauss. 114 ; Brown v. Gilman, 4 Wheat. 265, 299 ; Frazier V. Carter, 1 M'Cord,'s Ch. Rep. 276 ; Gilman v. Brown, 1 Mason, 212 ; Hatcher v. Hatcher, 1 Band. 63; Ghiselen v. Eergua^on, 4 Har. & John. 622; Garson v. Green, 1 John. Ch. Rep. 303; SEC. II.] Presumption of Payment- 685 Wilson V. Grahaui, 5 Munf. 241 ; Duval v. Bibb, 4 Hen. & Munf. 113 ; Tayloe v. Adams, Gil- mer's Eep. 329 ; Stouffers T. C , 1 Teates, 393 ; Wray v. Oomptfolier-General, 2 DeasaAis. 609 ; Francis v. Hazelrigg's Bx'rs, Hardin's Rep. 48 ; White v. Casanove, 1 Har. & John. 106 ; Cox V. Fenwiok, 3 Bibb, 103 ; Kennedy v. WooMblk, 3 Hayw. 19'J ; Wood y. Bank of Kentucky, 5 Monroe, 195, 198 ; Eubank v. Boston, 5 Monroe, 287, 292, 293 ; Blight's Heirs v. Banks, 6 Monroe, 198, 199, 203, 204; Meigs v. Dimock, 6 Conn. Rep. 458; Dean v. Dean, 6 Conn. Rep. 285; Mosely v. Garrett, 1 J. J. Marsh. 212, 215, 216; Meek's Heirs v. Ealy's Heirs, 2 J. J. Marsh. 329, 330 ; Boston v. Eubauk, 3 J. J. Marsh. 42 ; Webb v. Bowman's Bx'ra, 3 J. J. Marsh. 70, 75 ; Ducker v. Gray, 3 J. J. Marsh. 193, 164 ; Clark T. Hunt, 3 J. J. Marsh. 553, 657, 558, 559; Stewart v. Hutton, 3 J. J. Marsh. 178, 179; Funk v. M'Keoun, 4 J. J. Marsh. 162, 169 ; Johnson v. Thompson, 4 J. J. Marsh. 380, 382 ; Roberts v. SaUsbury, 3 Gill & John. 425 ; Griffith V. Depew, 3 Marsh. 179; Irvine v. Campbell, 6 Bm. 118; Kanfelt v. Baver, 7 Serg. & Eawle, 677; Tomkins v. Mitchell, 2 Rand. 428; Wilcox v. CoUoway, 1 Wash. 38; Cole v. Scott, 2 Wash. 141 ; Graves v. M'Caul, 1 Call, 314 old ed., 360 new ed. ; Semple v. Burd, 7 Serg. & Eawle, 286 ; Steele v. Adams, 1 Greenl. 1 ; Stafiford v. Van Rensselaer, 9 Cowen's Eep. 316 ; Dixon V. Swiggett, 1 Har. & John. 252 ; Brocket v. Fosoue, Euffin, 54 ; S. C, 1 Hawks, 64 ; Wilkinson v. Scott, 17 Mass. Eep. 249 ; Shephard v. Little, 14 John. Eep. 210 ; Bowen v. Bell, 20 John. Eep. 338 ; Hamilton v. M'Guu-e, 3 Serg. & Eawle, 355 ; Jordan v. Cooper, 3 Serg. & Eawle, 564 ; Weigley's Adm'rs v. Weir, 7 Serg. & Eawle, 309 ; Thallhimer v. Brinokerhoff, 6 Cowen's Rep. 102 ; Jackson ex dem. Rounds v. M'Chesney, 7 Cowen'a Rep. 360 ; Hlgdon v. Thomas, 1 Har. & Gill, 139. Mr. Sugden has faithfully collected the English oases ; and we have here added the most, if not all of the American eases ; not only those directly bearing on the doctrine of this equitable lien for purchase money ; but also those which, it is conceived, have a more remote application. They relate to the questions when the lien shall be holden to remain or be waived, as between the original parties, in respect to purchasers from the vendee or subse- quent inoumbraneers, what shall operate as evidence that the purchase money is paid, or affect the purchaser from the vendee or subsequent incumbrancers, with notice of non-payment, &o. See 4 Kent's Comm. (2d ed.), 151 to 154. 14. The assent to a legacy, by an executor, may be inferred from circumstances, among which it seems, taking possession by the legatee of a specific legacy, and enjoying with ths executor's assent for a long time, is an important circumstance. Math, on Pr. Ev. 267. 15. It is proper to observe, as to annuities, portions and legacies, as well as liens for purchase money, that the cases are by no means definite in bringing down the bar to twenty years. They are generally ot a longer time. Yet they bear such a striking analogy to other claims which are barred by an unexplained delay for that period, that this would, in the more modern and enlightened view of the question, probably be holden sufficient. . 1 6. Du-ect, technical and continuing trusts, and especially such as are created by the act of the parties, such trusts not being cognizable at law, but only in a court of equity, are not affected by the Statute of Limitations, as between trustee and cestui que trust. Harrison v. Lucas, 1 Ch. Eep. 67 ; Beckford v. Wade, 17 Tes. 87, 99, 100 ; Chohnondeley v. Chnton, 2 Meriv. 172, 357 ; Kane V. Bloodgood, 7 John. Ch. Rep. 90, 111 ; Hovenden v. Lord Annesley, 2 Soh. & Lefr. 633 ; Lord Kingsland v. Lord Tkconnel, 1 Vin. Abr. 186, pi. 10; Thomas v. White, 3 Litt. 181, 182; Far- nam v. Brooks, 9 Pick. 212 ; Falls v. Torrance, 4 Hawks, 412 ; Harrison v. Harrison, 1 Call, 419, 428, per Pendleton, President ; Redwood v. Riddick, 4 Munf. 222 ; Spottswood v. Dandridge, 4 Hen. & Munf 139, 145 ; Prevost v. Gratz, 6 Wheat. 481, 497; Thomas v. White, 3 Litt. 177, 181, 182 ; Townshend v. Townshend, 1 Bro. C. C. 554; Llewellyn v. Maokworth, Barnardist. Ch. Rep. 445 ; Howard's Adm'rs v. Aiken, 3. M'Cord, 467 ; Hemenway v. Gates, 5 Pick. 321 ; Pipher v. Lodge, 4 Serg. & Eawle, 310, 315 ; Walker v. Walker, 16 Serg. k Eawle, 379, 384; Wallace v. Duffield, 2 Serg. & Eawle, 521, 527, 528, 529 ; Jones y. Person, 2 Hawks, 269 ; Thompson v. Blair, 3 Murph. 583; Wisner v. Ogden, 4 Wash. C. C. Eep. 631; Van Ehyn v. Vincent, 1 M'Cord's Ch. Rep. 313 ; Arran v. Ld. Tyrawley, Cor. Ld. Manners, and cited by him in Medlicott V. O'Donel, 1 Ball & Beat. 170 ; Gist v. CatteU's Heirs and Eepresentatives, 2 Dessauss. Eq. Eep. 53. So as against a purchaser of the trustee with notice. Eankin v. Bi:adford, 1 Leigh, 163 ; per Hutchinson, Chancellor, in Payne v. Hathaway, 3 Verm. Eep. 232. An instance of this rule will be found in a bill filed by a cestui que limst to obtain an account of the rents and profits of land in the hands of his trustees (Lawley v. Lawley, 10 Mod. 32) ; a bill f.86 Of Presumptive Evidence^ [CH. x. to charge a wife's land conveyed in trust to her separate use, with her debts (ITorton v. Turville, 2 P. Wms. 144) ; to compel the execution of a trust for raising money out of real estate (Pomfret V. Windsor, 2 Tes. sen. 4Y2) ; to compel the re-surrender of a copyhold originally surrendered by the intended husband to the use of his intended wife, the marriage having never taken effect (Hammond v. Hiclcs, 1 Term. 432) ; to enforce a claim to slaves purchased by an executrix with money belonging to the testator's estate (Redwood v. Riddick, 4 Mun£ 222) ; in an action of detinue by the bailor against the bailee (Darden v. Allen, 1 Dev. 466, 469) ; in a biU filed to enforce a trust for the sale of land (Jones' Bx'rs v. Person, 2 Hawks, 269) ; or to reimburse to a trustee his equitable expenditures in regard to property holden by him under a direct trust. Overstreet v. Bate, 1 J. J. Marsh. 361, 310. Land is conveyed to A. in trust for a church; A. cannot, by possession, acquire a title as against the church (Howard's Adm'rs v. Aiken, 3 M'Cord, 461) ; nor can the trustee of land, devised to him in trust to apply the rents and profits to the use of B., acquire a title by possession as against B. (Hemenway v. Gates, 5 Pick. 321); nor can an executor who purchases land, part with his own and part with the funds of the estate acquire title by possession (WaUaoe v. Duffield, 2 Serg. & Rawle, 521, in connection with Ger- man's Lessee v. Gabbald, 3 Biun. 302 ; Palls v. Torrance, 4 Hawks, 412) ; nor one who receives a deed of laud in trust to sell and pay a debt (Jones v. Person, 2 Murph. 269, 290) ; nor (it is said) one who continues in possession of land after he has sold and is paid for it, and before he has given a deed. Qmre. But said, that if the vendor conveys to another who enters, the statute runs. Pipher v. Lodge, 4 Serg. & Rawle, 310, 315, 569. A trust resulting from a pay- ment of purchase money, or other consideration, and a deed taken by consent in another's name, the ceslui que trust continuing in possession, is not affected by the Statute of Limitations. Zane's Devisees v. Zane, 6 Munf 406; Oehler v. "Walker, 2 Har. & Gill, 323. And so where he once held, but had been divested of the possession. Pugh's Heirs and Ex'rs v. Bell's Heirs, 1 J. J. Marsh. 398, 401. 17. But these are all cases where the question arises between cestui que trust and trustee. ■Where a stranger has usurped the character of cestui que trust of real estate, and excluded the beneficial owner for twenty years, the latter is barred, in analogy to the statute limiting a right of entry. Marquis of Cholmondeley v. Ld. Clinton (2 Jac. & "Walker, I, 145, et seq.), where all the eases are reviewed by Sir Thomas Plumer, M. R. ; and at p. 189, note a, it wiU be seen that his views were concurred in by the House of Lords, on appeal in ths same case. After a good deal of conflict, the doctrine now appears to be finally settled by the last case. See Harwood v. Oglander, 6 "V"es. 169, 8 Id. 106; and Cholmondeley v. Clinton, 2 Meriv. 351, 358, 359; Benzien V. Lenoir, 1 N. Car. Law Repos. 504, 508, agamst the application of the statute bar as between cestui que trust and a stranger ; and Scott v. Gallagher, 14 Serg. & Rawle, 333 ; Llewellyn v. Mackworth, Barnard. Ch. Rep. 445, 449 ; Dare v. Beardsham, 1 Cas. Ch. 38 ; and Cholmondeley V. Clinton, 2 Jac. & "Walk. 1, 145, contra. See, also, Basket v. Pierce, 1 "Vern. 226, and Towns- hend v. Townshend, 1 Bro. C. C. 651. So both mortgagee and mortgagor may be barred by a possession adverse to both (Harrison v. Harrison, 1 Call, 419, 428); and the real cestui que trust was held barred, in analogy to the statute, by a possession of slaves claimed to be for the use of another, the whole being adverse to the true beneficial owner. Spottswood v. Dandridge, 4 Hen. & Munf. 139, 145. And see "Wallace V. Duffield, 2 Serg. & Rawle, 521, 525. 18. Analogous to the above is the limitation set by courts to a statute power, conferred by several of the United States upon executors or administrators, to sell real estate of the testator or intestate for the payment of his debts. On this power, in Massachusetts and Connecticut, these statutes impose no Umitation of lime. But the courts say the executors, &c., must come within a reasonable time to make the sale ; and they fix this to fifteen years, in analogy to the statutes of the same states limiting the exercise of a right of entry to that time. Rioard v. "Williams 1 "Wheat. 59, 113—120. 19. So all trusts which are not express and direct, not cognizable in a court of equity exclu- sively, are affected by the Statute of Limitations even as between trustee and cestui que trust. It therefore applies to the whole class of trusts arising by implication or construction. Thomp- son V. Blair, 3 Murph. 583 ; per Sir "William Grant, M. R., in Beckford v. "Wade, 11 Ves. 91 ; Deeouche v. Savatior, 3 John. Ch. Rep. 216; Goodrich v. Pendleton, 3 John. Ch. Rep. 384, 388 ; Van Khyn v. "Vincent, 1 M'Cord's Ch. Rep. 313 ; "Walker v. "Walker, 16 Serg. & Rawle, 319, SEC. II.] Presumption of Payment. 687 384; Shaver v. Eadley, 4 John. Ch. Rep. 210; Farnam v. Brooks, 9 Pick. 312; Falls T. Tor- rance, 4 Hawks, 412 ; Jones' Executors v. Person, 2 Hawks, 269, 290. As on a bill by a trus- tee under a first deed, to set aside a second conveyance from the same grantor as fraudulent, and have the claimants, under the last, declared and made trustees to the plaintiff on account of the fraud. Such trust not being direct, hut only to be made, or .framed or implied by the court, and the cestuis que limst under the second conveyance having been in adverse possesion more than twenty years, the statute was held to apply. Townshend v. Townshend, 1 Brown's Chan. Oas. 550, 554, per Lord Commissioner Ashurst. And see per Taylor, C. J., in Jones v. Person, 2 Hawks, 290. So where the plaintiff claimed as ceslvi que trust under a deed of 1665, made by one against the defendant, who had been twenty-flve years in possession as cestui que trust under a subsequent deed of 1693 made by another; and fraud was charged. Llewellyn v. Mackworth, Bamardist. Ch. Rep. 445, 449. So a fine and five years non-claim of a trust holden in tail were held to bar the remainder. Basket v. Pierce, 1 Vem. 226 ; AUeu v. Sayer, 2 Vem. 368, S. P. So where an executor sold a term in fraud of the estate ; and the hill was to set aside the purchase, and declare the purchaser a trustee on account of the fraud. Andrew T. Wrigley, 4 Brown's Chancery Cases, 125 ; Bonney v. Ridgard, cited 4 Brown's Chancery Cases, 138 ; and also cited, and fully stated and commented upon, 17 Ves. 97 ; and now reported in Cox's Cas. in Ch. 145, S. P. So of a bill to set aside a sheriff's sale. Bearfield v. Stevens, 1 Harp. Ch. 52 ; Bond v. Brown, Id. 270. So of a bUl to charge one as purchaser from a trustee. Thompson v. Blair, 3 Murph. 683, 593 ; Bankin v. Bradford, 1 Leigh, 163, contra. So on a bUl upon the Kentucky law of ^real estate to set up a junior entry of lands against a senior entry and patent of the defendant, he having held adversely for twenty years. Elmendorf v. Taylor, 10 "Wheat. 152. And see MUls' Heirs v. Bodley, 4 Monroe, 249 ; and EstiU v. Patrick, Id. 308, and other cases under this law, infra. So as to bUls in general to set aside deeds, sales, or other acts, for actual or constructive fraud, the statute runs after the fraud is discovered by the party injured, and he is freed from the control of the opposite party. Fraud includes an advantage taken of ignorance, mistake, or mental imbecihty, &c. And the rule extends also, to purchases by trustees, agents and other persons holding relations inconsistent with an equitable right of purchase. Medlicott v. O'Donel, 1 Ball & Beatty, 156, 165, 166, 167 ; Whalley v. Whalley, 8 Bligh, 1 ; Jones v. Person, 2 Murph. 290, per Taylor, Ch. J. ; Hawley v. Cramer, 4 Cowen's Rep. 717, 742 ; Jenison v. Hapgood, 7 Pickering, 1 ; Davis v. Simpson, 5 Harr. & John. 147 ; Thomp- son V. Blair, 3 Murph, 583, 593 ; Banks v. Judah, 8 Conn. Rep. 145 ; Gregory v. Gregory; Cooper's Ch. Rep. 201 ; Thomas v. White, 3 Litt. 183 ; Haddix's Heirs v. Davison, 3 Monroe, 41 ; Breckenridge v. ChurchUl, 3 J. J. Marsh. 15 ; Crane v. Prather, 4 J. J. Marsh. 77, 78; Mul- cahy V. Kennedy, 1 Ridgw. Ir. P. C. 331. And see 2 Id. 397 ; and Champion v. Rigby, 1 Russ. & Mylne, 639; S. C, 1 Tamlyn, 421. Where the question is upon fraud in respect to land, or upon a land trust, &c., according to all the cases (see especially Medlicott v. O'Donel, 1 Ball & Beat. 156 ; Hawley v. Cramer, 4 Cowen's Rep. 717, 743; Bunco v. Wolcott, 2 Conn. Rep. 27; Ward v. Tan Bokkelin, 1 Paige, 100, 101); the limitation is the same with the statute bar to a right of entry ; generally twenty years ; and in cases of personal property the same as the statute bar to an action of assumpsit, usually six years. Booth v. Earl of Warrington, 4 Bro. P. C. by Toml. 163 ; South Sea Company v. Wy- mondsell, 3 P. Wms. 143 ; Kane v. Bloodgood 7 John. Ch. Rep. 90 ; Hawley v. Cramer, 4 Cowen's Rep. 717, 725, 742, 743. And see Beard v. Griggs, 1 J. J. Marsh. 28. 20. Other rules make a very broad opening for the application of the statute. Where the remedy in chancery is concurrent with that in courts of law, even though there be a direct trust, and also where legal titles or legal demands are drawn in question by chancery, or even where there are rights at law analogous to that cognizable in chancery (see Kane v. Bloodgood, 7 John. Ch. Rep. 90, and Hovenden v. Lord Anuesley, 2 Schoales & Lefroy, 629, 630 ; Miller's Heirs and Devisees v. M'Intyre, 6 Pet. 61, 65, 66) ; if in the two first cases, there be a statute limitation at law on the same subject, or in the last on the analogous subjects, the same time will bar in chancery ; for equity follows the law. After considerable conflict of opinion even upon the two former points, after the statute bar had been often evaded by going into chancery in respect to legal claims, under the notion of their being mixed with fraud and trust, and obtaining a sanction of the evasion by the inadvertent opinions of several chancellors, the above rules seem to be fully established. See Of Presumptive Evidence, [CH. X. Bertine v. Tarianj 1 Edw. Ch. Eep. 343 ; Famamv. Brooks, 9 Pick. 212; Lewis v. Marshall, 5 Pet. 470 ; Palls v. Torrance, 4 Hawks, 412. In the 26 Car. II, money was in deposit, for which debt would have lain. But in regard this was barred by the statute, the depositor went to chancery avowedly to evade the statute, under the notion of direct and express trust. And the evasion was sanctioned by the court, though the statute bar was there insisted on. Lord Hollis' Case, 2 Tentr. 345. This would of course have carried the statute away from the numerous oases of bailment, had the decision been fol- lowed out. In 1792, this was taken for law by the Virginia Court of Appeals, who extended it to a bill against a sheriff for money collected upon execution, and fraudulently unaccounted for. Hunter & Hemdon's Bx'rs v. Spotswood, 1 Wash. 145. The same idea was entertained in a court of law as to money received in trust by an agent. Grant v. Beall, 4 Harris & M'Hen. 419, since overruled in Green's Bx'x v. Johnson, 3 Gill & John. 396, 391. And as late as 1821, Chancellor Kent extended the same doctrine to questions between bailor and bailee, principal and factor, principal and agent, &c. Coster v. Murray, 5 John. Ch. Eep. 222, corrected on appeal, 20 John. Rep, 576, S. C. The same doctrine was formerly held in Pennsylvania (Styles v. Don- aldson, 2 Dall. 264) ; and as late as 1826, the Supreme Court of that state inclined strongly that the statute does not apply to a deposit of money, and a tortious conversion by the depositee. Johnston v. Humphreys, 4 Serg. & Rawle, 394. At an early period in England, on a bill fiOled by the executors of Heath, C. J., against his prothonotary for an account of tees received by him to the testator's use, the application of the statute was denied. Heath v. Heney, 1 Cas. Ch. 20. The notion upon which these cases proceeded may now be considered as entirely exploded; and the authorities in support and illustration of the opposite doctrine so clear, that great cer- taruty and safety now prevails in this branch of equitable jurisprudence. Van Hook v. 'Whit- lock, 3 Paige, 409 ; Bertine v. Varian, 1 Ed. Ch. Rep. 343 ; Smith v. Clay, 3 Bro. C. C. 639, note ; Bond V. Hopkins, 1 Seh. & Lef. 413; 10 Ves. 466, 467; Elmendorf v. Taylor, 10 Wheat. 152, 168 ; Thomas V. Brookenborough, 10 Wheat. 146, 149, 150 ; Roosevelt v. Mark, 6 John. Ch. Rep. 266; Hinlon v. Fox, 3 Litt. 380; Breokenridge v. Churchill, 3 J. J. Marsh. 15; Hodge v. Owings, 5 Monroe, 91, 93 ; Lewis v. Marshall, 5 Pet. 470 ; Banks v. Judah, 8 Conn. Rep. 145. And see Lorton v. Gore, 1 Dow & Clark, 190. Thus a bUl, concurrent with the action of account, by an adult, filed for an account of rents and profits received while he was an infant, was holden to be barred by the lapse of six years. -Lockey v. Lockey, Prec. Ch. 518 ; Bertine v. Varian, 1 Ed. Ch. Rep. 343 ; Staokhouse v. Barnston, 10 Ves. 453 ; and Eeade v. Reade, 6 Ves. 744, S. P. And see Green v. Johnson, 3 GiU & John. 389. So of a bill for waste against tenant for life, who has sold the timber, and so is hable in assumpsit. Hony v. Hony, 1 Sim. & Stu. 668.' So a bill by a tenant in common, for an account against his oo-teuant (Prince v. Heylin, 1 Atk. 493), and this too, though there be a trust ; and for this reason, the last case was once doubted. 1 Atk. 493. So on a bill filed to recover money collected by an agent, though held in trust ; and the court said every bailment might as well be considered a trust as this. Sturt v. MeUish, 2 Atk. 610. So on a bill filed by a stockholder against the company for a dividend (Kane v. Bloodgood, 7 John. Ch. Rep. 90), or to set aside a sale, voidable as having been made by a majority of the corporate stockholders to theniselves. Banks v. Judah, 8 Conn. Rep. 145. So of a set-off of a personal mortgage against a bill filed by a distributee for an account of the intestate's estate. Watkins v. Harwood, 2 GiU & John. 307. So on a bill filed to charge the estate of a deceased partner with a debt. Fisher's Ex'rs V. Tucker's Representatives, 1 M'Cord's Ch. Rep. 169. So on a bill filed to obtain relief against usury (Hodge v. Owings, 6 Monroe, 91, 93 ; Breckenridge v. Churchill, 3 J. J, Marsh. 11, 16), or to rectify a deed for fraud or mistake as to the quantity of land. Haddix's Heirs v. Davison, 3 Monroe, 39, 41 ; Poague v. Allen, 3 J. J. Marsh. 421, 422. So of a bill against an executor, to account and pay a debt (Webster v. Webster, 10 Ves. 93 ; More v. White, 6 John. Oh. Rep. 366, 372); or for an account of tithes (Collins v. Archer, 1 Russ. & Mylne, 284); or by a legatee for an account, and to pay debts and legacies, in which case on accounting before the master the legatee was allowed to object the statute bar against the debt, though the executor refused (Shewen v. Vanderhorst, 1 Russ. & Mylne, 347) ; or against one to whom another's goods have come, and who is bound to deliver or account for them. Van Rhyn v. Vincent's Ex'rs, 1 M'Cord's Oh. Rep. 310. A bill to enforce an oral contract to convey laud, the vendee not hav- ing had possession, was held barred in five years, the Kentucky limitation to an action of SEC. II.] Founded on Statute of Limitations. assumpsit. M'Millin v. Mliaiin, 1 Monroe, 660, 56t. And see 4 Monroe, 193. And five years adverse possession by the purchaser of a slave from the mortgagor, without notice, will bar the mortgagee'* bill. Toung v. Wiseman, T Monroe, 271, 272. So where the bill is brought for discovery only, the statute will be a bar. Van Rhyu v. Vincent, 1 M'Cord's Oh. Bep. 310, 313 ; Lansing v. Starr, 2 John. Ch. Eep. 150. But if the action at law were brought before the bill of discovery is filed, the plea to the bill must aver that the statute was pleaded to the action. M'Gregor v. The East India Co., 2 Sim. 452. So the statute is a bar wherever an action on the case will lie for the subject of the bill Roosevelt v. Mark, 6 John. Ch. Eep. 266. So to a bill to compel the stockholders of a dissolved corporation to pay its debts, &e., pursuant to its statute charter; for debt or assumpsit is a concurrent remedy. Van Hook v. Whitlook, 3 Paige, 409. So where assumpsit will lie (as, semb. it will), for money paid by one in behalf of another on a joint adventure between them. Eingsland v. Roberts, 2 Paige, 193, per Walworth, C, at 194. So where one of two joint owners takes the goods, and agrees ta account to the other for them. Murray v. Coster, 20 John. Rep. 576. So of a bill filed by an heir, to reclaim a slave belonging to his father, who intrusted the slave to another. His father's administrator refused to sue, whereby the heir was put to his biU both against the administrator and bailee ; but held that the statute applied. Thomas v. White, 3 Litt. 177, 183, 184. So of a bill filed lo recover a legacy in New York, against an executor, there being a statute of that state giving an action, as we saw by the oases and statutes cited supra ; in addition lo which see Deoouche v. Savatier, 3 John. Ch. Eep. 216, 217 ; and Coster v. Murray, 5 John. Ch. Eep. 522, where Kent, C, over- looked the question on the statute remedy. But he questions his former decision and dicta, for that reason, in Kane v. Bloodgood, 7 John. Ch. Eep. 125 to 127. He is sustained ia that dis- tinction by Wisner v. Barnet, 4 Wash. 0. C. Rep. 639, 6-10 ; and by Souzer v. De Meyer, 2 Paige, 574. But we must except a legacy charged on land. Peletreau v. Rathbone, 18 John. Rep. 428. Whether the legal Umitation of remedies for legacies and distributive shares applies under the statute provisions of New Jersey, Washington, J., doubted. Wisner v. Barnet, 4 Wash. 0. C. Eep. 639 to 641. For this doctrine in Massachusetts, see Burditt v. G-rew, 8 Pick. 108 ; and in Pennsylvania, the opinion of Huston, J., in App v. Driesbach, 2 Bawle, 301 to 303. The statute Imiitation applies to a bill filed by a client against his attorney, to recover money which the latter has collected for the former. Goodrich v. Pendleton, 3 John. Ch. Eep. 384 ; Hawley v. Cramer, 4 Cowen's Eep. 717. So to a bill filed against the assignee of a mortgagee, to redeem a negro slave mortgaged to secure money borrowed, the mortgagee having sold the slave absolutely to the defendant, who purchased bonaflde, and held the slave adversely for more than three years, the North Carolina Statute of Limitations (Bell v. Beeman, 3 Murph. Eep. 273, 277) ; and this though equity had exclusive jurisdiction. The court adopted the statute from analogy. Whether the statute applied to a bill by partners, inter se, for an account, the cases seemed to leave a little doubtful, with a strong tendency, however, to the affirmative (Bridges v. Mitchell, Gilb. Eq. Rep. 224, 225; Hollingshead's Case, 1 P. Wms. 742 ; Ray v. Bogart, 2 John. Cas. 432 ; Gover v. Hall, 3 Harr. & John. 43 ; M'Nair v. Ragland, 3 Murph. 139 ; Codman v. Rodgers, 10 Pick. 112), till some recent decisions, which have settled the question in favor of the bar, upon the obvious prin- ciple that the bill is concurrent with an action of account. Atwater v. Powler, 1 Edw. Ch. Eep. 417. And see per Walworth, C, in Kingsland v. Roberts, 2 Paige, 193, 194; Lansdale v. Brashear, 3 Monroe, 330, 333; Patterson v. Brown, 6 Monroe, 11, 12, 13. By the two latter eases, however, the statute does not run, till after dissolution of the partnership. These adopted the statute from analogy. The statute applies to a bill of revivor, by the administrator of one partner against the other ; though not if the matter proceed to a decree before the latter bill was filed. Hollingshead's Case, 1 P. Wms. 742. The statute wiU be allowed on a bill for partition. Straughan v. Wright, 4 Rand. 493 ; Lyles v. Lyies, Harp. Oh. Rep. 288. So far the cases have gone mamly upon the concurrent remedy. But as remarked at the head of this section, the application of the statute upon analogical grounds, has long been equally familiar to courts of equity. 3 Monroe, 31. A leading illustration of this will be found in the usual bill for enforcing an equitable title to land. If at law, the statute would have operated against an action to recover land, it shall prevail against a bill for that purpose. Upon this prin- ciple, in Kentucky, twenty years' adverse possession bars an equitable claim arising upon an entry of land (a kind of equitable contract for land), under the Kentucky la w of titles. Miller's Heirs and Devisees v. M'Intyre, 6 Pet. 61 ; Lansdale v. Brashear, 3 Monroe, 331 ; Lewis v. Marshall, 5 7oL. I. 44 690 Of Presumptive JEvidence, [CH. X, Pet. 410 ; Shepherd's Heirs v. Young, 1 Monroe, 203, 205, and Broxdale T. Speed, cited at the, last page ; Wilson's Heirs v. Bodley, 2 Litt. Eep. 55 ; Floyd's, H^irs v, Johnson's Heirs, Id. 109 ; Reed v. Bullock, Litt. Sel. Cas. 510, 512, 513, &o. The time runs in these cases from the issuing of the adverse grant. Mills' Heirs v. Bodley, 4 Monroe, 249. See other cases under this Ken- tucky law smjjto. The above Kentucky cases and others may be regarded- as establishing, the, general position that adverse possession is equally a bar to an equitable, as of a legal claim for land. Per Marshall, 0. J., in, Hunt v. "Wickliffe, 2 Pet. 201, 212 ; Peyton v. Stith, 5 Pet. 485. In pursuance of this principle, an issue of devi^avU vel non wiU not be. granted after an adverse possession of twenty years. -Tucker v. Sanger, M'Clel. 434, 438. So, from analogy, bills respecting personal property are barred, though the remedy be not con- current at law. "We have seen an instance of this in BeU v. Beemau {supra), where the. statute was applied in favor of the purchaser from a chattel mortgagee, against the mortgagor's biU to redeem. So an account for rents and profits of land, claimed under an equitable title, wiU not be carried back more than six years, in analogy to the action at law for mesne profits (per Lord Camden, in Smith v. Clay, 3 Bro. C. 0. 640, note ; Eeade v. Reade, 5 Ves. 749, 150 ; Staokhouse v. Barnston, 10 Ves. 469) ; and wiU sometimes, under special circumstances, be restrained to the time of filing the bill. Pickett v. Loggon, 14 Vesey, 215, 243, 244 ; per Lord Hardwioke, in Dormer v. Fortesoue, 3 Atk. 130 ; Pettiward v. Prescott, 1 Vesey, 547 ; Rosevelt v. Post, 1 Edw. Ch. Eep. 579, 582, and the cases there cited. So a bill of revivor cannot be brought after a delay of six years. HolUngshead's Case, 1 Wms. 742. See also 2 Soh. & Lefr. 632. The statute limiting the time of a writ of error has been appKed, on the same principle, to. the, analogous proceedings by biU of review. Smith v. Clay, Ambl. 645 ; S. C, 3 Bro. C. C. 639, note; Norris v. Le Neve, 3 Atk. 26, 38; Edwards v. Carroll, 2 Bro. P. 0. by TomL 98 ; Litton v. Lit- ton, 4 Bro. C. C. 441 ; Thomas v. Brockenborough, 10 "Wheat. 146, 149, 450. And see Sher- rington V. Smith, 2 Bro. P. C, by Toml. 62 ; Earl of Castlehayeu v. Underbill, 2 Ch. Eep. 46 ; Fil- ton V. Earl of Macclesfield, 1 Vern. 287, and Green's Heirs v. Breckenridge's Heirs, 4 Monroe, 541. And it was declared a grave question m Barrington v. O'Brien (1 BaU & Beat. 173), whether a supplemental bill to enforce a decree would not be barred by an unexplained delay of twenty years, in analogy to the Irish Statute of Limitations in respect to judgments. Twenty years will bar a bill for a rehearing as well as a bill of review (sEiid by Lord Camden, C, in Smith V. Clay, Ambl. 649). In analogy to the limitation of a writ of error, the Supreme Court of New York refused to. set aside a judgment for irregularity, after ten years (Soulden v. Cook, 4 "Wend. 217), and after five years refused to let the plaintiff enter a vacatur of his own judgment. Bar- heydt v. Adams, 1 "Wend. 161. And see Klinefelter's Lessee v. Carey, 3 GiU & John. 349, 353. But there is no limitation of time against showing a judicial proceeding to be void for want of jurisdiction. It will not be valid, though acted under for twenty years. Holyoke v. Haskins, 9 Pick. 259, 263, 264. "With regard to the presumptive bar in the cases above enumerated, under the last head, and, indeed in all cases, it may be enlarged or avoided by the saine disabilities in the claimant which are admissible at law ; as infancy, coverture, insanity, imprisonment, absence, the person not being in esse, or the interest contingent, &c. Miller's Heirs and Devisees v. Molntyre, 6 Pet. 61 Lockey v. Lookey, Preo. Ch. 518 ; per Lord Hardwicke, in Dormer v. Portescue, 3 Atk. 130 Rowland v. Best, 2 M'Cord's Ch. Rep. 317, 320; Pugh's Heirs v. Bell's Heu^ 1 J. J. Marsh, 403, And see Newburgh v. Bickerstaffe, 1 Vern. 296, and Yallop v. Holworthy, 1 Eq. Cas. Abr. 7 pi. 10, Other answers to the presumptive har are allowed in chancery which are not receivable at law ; at least they are allowable where the remedy is not concurrent with that at law. Accord- ingly, it is held that time does not run against fraud or concealment, until a discovery of such fraud or concealment by the claimant (Bertine v. Varian, 1 Edw. Oh. Rep. 343 ; South Sea Co. V. "Wymondsell, 3 P. "Wms. 143 ; Prevost v. Gratz, 6 Wheat. 497, 498, per Story, J. ; Wamburzee T. Kennedy, 4 Dessauss. 480; Payne v. Hathaway, 3 Verm. Rep. 212; Crane v. Prather, 4 J. J Marsh. 77 ; Haddix's Heirs v. Davison, 3 Monroe, 41 ; Pugh's Heirs v. Bell's Heks, 1 J. J. Marsh. 398, 401; Roche v. O'Brien, 1 Ball & Beat. 330; Dunbar v. Tredenniok, 2 BaU & Beat. 304; Blennerhasset v. Day, 2 BaU & Beat. 129; per Lord Redesdale, in Hovenden v. Annesley, 2 Sch. & Lefr. 634; per Lord Manners, in Medlicott v. O'Donel, 1 Ball & Beat. 166; per Lord King, in Western v. Oartwright, Sel. Cas. Oh. 36 ; Whatton v. Toone, 5 Madd. Rep. 54, 55 ; per Ooleook, J,, in Botifeur's Sureties v. Weyman, 1 M'Cord Ch. Rep. 161 ; Jones v. Conoway, 4 SEC. II.] Presumptions in Cases of Delay. 691 Teates, 100, 111; Hamilton v. Shepperd, 3 Murph. 115; Thomas v. White, 3 Lltt. 183 ; Pyle v. Beokwith, 1 J. J. Marsh. 445 ; Breokenridge v. Churchill, 3 J. J. Marsh. 15) ; at least not till the claimant have the full means of discovery. Farnam v. Brooks, 9 Pick. 212. Nor does time run against the remedy for a mistake until that be discovered. Crane v. Prather, 4 J. J. Marsh. 11; Bertinev. Tarian, 1 Edw. Ch. Rep. 343. And accordingly, removal of trust property, so as to keep the cestui que trust ignorant of its place, was held to be^ an excuse for delay. Rankin v. Bradford, 1 Leigh, 163. And in one case, where the party was likely other- wise to lose his remedy by bill of review, by the Statute of Limitations, on account of a mistake of the practice in commencing the suit, the chancellor allowed such mistake as an answer to the delay. Webb v. Pell, 1 Paige, 564. So it does not run against the remedy for undue-influence, tiH this influence has ceased. Alden V. Gregory, 2 Eden, 280 ; Roche v. O'Brien, 1 Ball & Beat. 330; Hatch v. Hatch, 9 Vesey, 292 ; per Lord Manners, in Medlicott v. O'Donel, 1 Ball k Beat. 166 ; M'Oants v. Bee, 1 M'Cord's Ch. Rep. 391. But where the bargain is obtained by undue advantage of pecuniary difficulty, and the injured party knows this, the time runs from the completion of the transaction. This is on the principle that the law cannot in policy allow distressed pecuniary circumstances to excuse delay ; for then there would sometimes be no limitation. Hovenden v. Ld. Annesloy, 2 Sch. & Lef. 607, 639 ; Medlicott v. O'Donel, 1 Ball & Beat. 156 ; Western v. Cartwright, Sel, Cas. Ch. 34 ; Earl of Deloraine v. Browne, 3 Ero. C. 0. 633 ; Hickes v. Cooke, 4 Dow, 16. See also Bick- nell V. Gough, 3 Atk. 638 ; and Ld. Redesdale's observations on that case, 2 Sch. & Lef. 635 ; Moroney v. O'Dea, 1 Ball & Beat. 609 ; likewise 2 Ball & Beat. 118, and Winohecomb v. Hall, 1 Ch. Rep. 40. But see M'Cants v. Bee, 1 M'Cord's Ch. Rep. 391. Tet pecuniary distress is allowed to excuse delay where the transaction is the purchase of a reversionary interest. This is an exception to the general rule. See Gowland v. De Paria, 17 Tes. 20, 25 ; Roche v. O'Brien, 1 Ball & Beat. 330 ; Dunbar v. Tredennick, 2 Ball & Beat. 204. But see Earl of Deloraine v. Browne, 3 Bro. C. C. 633 ; Moth v. Atwood, 5 Tes. 845 ; and Oliver v. Court, 8 Price, 127, 170. But the claimant is not here excused upon the ground that the interest has not come into his possession ; for that is only an excuse at law, where the rem- edy depends on a present right of possession. That ground wiU not prevent the filing of a bill to avoid the sale. See Andrew v. Wrigley, 4 Bro. C. C. 125. Also per Sir J. Leach, T. C, 5 Madd. Rep. 55. So where an executor wrongfully and in collusion with the purchaser, sells a term for years, which is specifically bequeathed, even though the interests of the legatee be re- versionary, he must come to set aside the sale, within the time. Andrew v. Wrigley, 4 Bro. C. C. 125, 138; Bonney v. Ridgard, 1 Cox's C. 0. 145, 147 to 149; S. C, 2 Bro. C. C. 130; Elliott V. Merriman, Barnardi^. Ch. Rep. 78. Where the bill was filed by the remainderman for waste, being in nature of an assumpsit (as for the waste of timber cut, for which assumpsit would lie), an acknowledgment (as an account- ing with the remainderman within six years for waste) was held to take the case out of the statute, the same as if the action had been for timber sold, at law. Hony v. Hony, 1 Sim. & Stu. 668. Whatever the ground of avoidance be, whether infancy, fraud, concealment or mistake, the. party complainant must state it distinctly in his bill. It is not enough to state in a general way, that he was not in a situation to call the defendant to an account, Ac. Miller's Heirs and Devisees v. Mintyre, 6 Pet. 61 ; Bertine v. Varian, 1 Edw. Ch. Rep. 343. The suit shall not be deemed commenced so as to avoid the running of time as to any one of the defendants, till subpcena served. Miller's Heirs and Devisees v. M'Intyre, 6 Pet. 61. But a< suit commenced by one creditor for himself and others, prevents the running of the statute as to all. Sterndale v. Hankinson, 1 Sim. 393. 21. We have seen {swpra) within what time a cestui que trust, &o., must come to set aside a purchase made by his trustee. It is proper to note, briefly, the case? in which chancery will set aside such purchases. It acts with a view to prevent a breach of confidence ; and cut off all temptation to abuse by any person who is engaged or intrusted with the sale of property for another, either by the party or the law. The trustee is supposed to have acquired in the course of his agency a peculiar knowledge of. the property,, by concealing, which from purchasers, he may, if allowed, make advantage to himself His duty being to get the highest price by, a dis- closure of all circumstances which ahalliend to obtain such price in the market, chancery haa, 692 Of Presumptive Evidence, [CH. X. therefore cut ofif all power in himself to buy, either in his own name or in that of any other ; andr without inquiring into the fact of actual abuse, wiU, on the owner coming in reasonable time, set aside the sale. 8 Ves. 348, 349 ; Mealor v. Kimble, 2 Murph. 272. This rule extends to all trustees holding the legal estate, who are made such trustees by the act of the party for the purpose of selling the trust property, whether the trust were created by deed, assignment, will or otherwise. Whelpdale v. Cookson, 1 Ves. sen. 9, more fully reported 5 Vesey, 682 ; Whichcote v. Lawrence, 3 "Ves. T40 ; Campbell v. Walker, 5 Tes. 678 ; S. C, 13 Ves. 600 ; Lyster v. Lyster, 6 Ves. 631 ; Davoue v. Pannmg, 2 John. Ch. Eep 252 ; Holt v. Holt, 1 Cas. Ch. 190 ; Keech v. Sanford, 2 Eq. Cas. Abr. 741 ; Ex parte Grace, 1 B. & P. 376 ; Fox v. Macreth, 2 Bro. C. C. 400, and cited 6 Ves. 627, and 9 Id. 246 ; per Lord Hardwicke, in Ayliffe T. Murray, 2 Atk. 59 ; Ex parte Reynolds, 5 Ves. 707 ; Randall v. Errington, 10 Ves. 423 ; Morse v. Royal, 12 Ves. 355 ; Lowther v. Lowther, 13 Ves. 95 ; Munroe v. Allaire, 2 Cain. Cas. Err. 183 ; Green v. "Winter, 1 John. Ch. Rep. 26 ; Hawley v. Mancius, 7 John. Ch. Rep. 174; Holdridge t. Gillespie, 2 John. Ch. Rep. 30 ; Mathews v. Dragaiid, 3 Dessauss. Eq. Rep. 25 ; per "Woodward, J., and Golden, Senator, in Gallatian v. Cunningham, 8 Cowen's Rep. 361, 372, 377 ; Bergen v. Bennett, 1 Cain. Cas. Err. 1, 19, 20, per Kent, J. ; Famam v. Brooks, 9 Pick. 212; De Caters v. Le Ray De Chaumont, 3 Paige, 178. So it extends to his factor or attorney employed to sell, or deal in the articles sold. Jackson ex dem. M'Carty v. Van Dalfsen, 5 John. Eep. 43 ; Hall V. Hallett, 1 Cox's Ch. Cas. 140 ; Hawley v. Cramer, 4 Cowen's Rep. 717, 736 ; Napoleon's Civil Code, art. 1 506 ; per "Wcodworth, J., in Gallatian v. Cunningham, 8 Cowen's Rep. 361 373. So sometimes to the relation of attorney and client in respect to other business. Per Lord Eldon, in Morse v. Royal, 12 Ves. 371 ; "Wells v. Middleton, "Walmsley v. Booth, and Sanderson V. Closse, cited by Lord Eldon in Morse v. Royal, 12 Ves. 372, and the first again cited and ap- proved in Ormond v. Hutchinson, 13 Ves. 51 ; Harris v. Tremenheere, 15 Ves. 34; "Wendell v. Van Rensselaer, 1 John. Ch. Eep. 344 ; Kenney v. Brown, 3 Ridgw. P. C. (Ireland), 462, 523. So to attorneys, advocates and judges, as to any matter in litigation by or before them (3 Ridgw. Ir. P. C. 501, 522 ; Miles v. Ervin, 1 M'Cord's Ch. Rep. 524); to solicitor and client (Champion v. Rigby, 1 Russ. & Mylne, 539 ; S. C, 1 Tamlyn 421) ; to agents employed to sell or buy the thing in dispute (Ex parte Lacey, 6 Ves. 625 ; Parkist v. Alexander, 1 John. Ch. Rep. 394 ; per "Woodworth, J., in Gallatian v. Cunningham, 8 Cowen's Rep. 361, 373 ; Ormond v. Hutchinson, 13 Ves. 47 ; Beaumont v. Boulthee, 5 Ves. 485 ; S. C, 7 Ves. 599 ; per Lord Manners, in Med- licott v. O'Donel, 1 Ball & Beat. 164; Farnam v. Brooks, 9 Pick. 212. So to surveyors (Oliver V. Court, 8 Price, 127) ; to stewards (Lord Lesley v. Rhoades, 2 Sim. & Stu. 41, 49, 50 ; Farnam v. Brooks, 9 Pick. 212) ; to auctioneers (per "Woodworth, J., in Gallatian v. Cunningham, 8 Cowen's Rep. 361, 373) ; to the attorneys, agents, surveyors and auctioneers of trustees (OUver v. Court, 8 Price, 127 ; per "Woodworth, J., and Golden, Senator, in Gallatian v. Cunningham, 8 Cowen's Rep. 361, 373, 377. So to all trustees appointed by law; as the commissioners and assignees of a bankrupt (Ex parte Tanner, Atwood and Owen v. Toulkes, 6 Ves. 63, n 6 ; Ex parte Lacey, 6 Ves. 625 ; Ex parte Hughes & Lyon, 6 Ves. 617 ; Ex parte James, 8 Ves. 337 ; Ex parte Ben- nett, 10 Ves. 385; per "Woodworth, J., in Gallatian v. Cunningham, 8 Cowen's Rep. 161;; a trustee appointed by chancery to make sale. Richardson v. Jones, 3 Gill k John. 163 ; De Caters v. Le Ray De Chaumont, 3 Paige, 178. So to executors and administrators (S Ves. 346, 6 Ves. 628 ; Lessee of Moody v. Van Dyke, 4 Binn. 43 ; Dodson v. Simpson, 2 Rand. 294 ; Graff V. Oastleman, 5 Rand. 195 ; Van Home v. Fonda, 5 John. Ch. Rep. 388 ; Everston v. Tappen, 5 John. Gh. Rep. 497 ; Fellows v. Fellows, 4 Cowen's Rep. 682 ; Gordon v. Finlay, 3 Hawks, 239 ; Lovell V. Briggs, 2 N. H. Eep. 218 ; Scott v. Buroh's Adm'r, 6 Harr. & John. 67 ; Jenison v. Hapgood, 7 Pick, 1). One of two joint devisees, tenants in common, both holding under an imper- fect title, buys in the true title. This enures to the benefit of both. Van Homo y. Fonda, 5 John. Cb. Rep. 388. So the rule extends to the agents, solicitors and other assistants of execu- tors and administrators. Currier v. Green, 2 N. H. Eep. 225 ; OKver v. Court, 8 Price, 127, 164; Ex parte James, 8 Ves. 337 ; Owen v. Foulkes, 6 Ves. 630, note 6; Ex parte Hughes, 6 Ves. 617 ; Ex parte Bennett, 10 Ves. 385 ; York Buildings Co. v. Mackenzie, 8 Bro. P. C. by Toml. app. 42, 67 ; "Whitoomb v. Minchin, 5 Madd. Eep. 91 ; per "Woodworth, J., in Gallatian v. Cun- ningham, 8 Cowen's Eep. 361, 373. So to creditors of a bankrupt. 8 Ves. 350; Ex parte Hughes, 6 Ves. 617. So to sheriffs and other officers' as to property sold by them on execution (Lessee of Lazarus v. Bryson, 3 Binn. 54 ; 2 Eev. Stat. N. T. 370, § 41) ; to a common agent of SEC. II.] In Cases of Delay and Matters of Trmt. 6&3 the court in Scotland, answering to our solicitor (York Buildings Co; v. Mackenzie, 8 Bro. P. C. by TomL app. 42). Whether an attorney for the plaintiff in an execution, can purchase under it for his own benefit. Quere. Howell v. Baker, 4 John. Ch. Eep. 118. General guardians of minors are within the rule the same as other trustees. Napoleon's Civil Code, art. 1596. And see Ferriss T. Bush, 1 Edw. Ch. Rep. 572. So guardians ad litem. Per 'Woodworth, J., and Golden, Senator, in Gallatian v. Ouaningham, 8 Cowen's Rep. 361, 372, 373, 377 ; per Lord Eldon, in Morse v. Royal, 12Te3. 371. Courts have occasionally gone far in presuming frauds from other relations of a miscellaneous character. They have set aside a conveyance from an aged father to his children, in considera- tion that they should support him ; but who abandoned him. Whelan v. Whelan, 3 Cowen's Rep./537. And vid. M'Diarmid v. M'Diarmid, 3 Bligh (N. S.), 374. So, to his son's widow, that she should Mve with and aid him; but who left him. Jenkins v. Jenkins, 3 Monroe, 327, 329. So, of a conveyance from an ignorant young man to his uncle (a pettifogger) upon inadequate consideration (HaU v. Perkins, 3 Wend. 626) ; and from an aged solitary female to her collateral relations (Gore v. Summersall, 5 Monroe, 505) ; and in another case to a Methodist preacher (as a consideration for his spiritual services), he having wrought her into a state of enthusiasm. Nor- ton V. Relly, 2 Eden, 286. The rule is held not to extend to public officers or trustees holding stock for general distribu- tion or sale on certain terms, with a view to create a moneyed corporation. In such a case they may distribute to themselves, among others, in their discretion, unless restrained by statute. Haight V. Day, 1 John. Oh. Eep. 18 ; Walker v. Devereux, 4 Paige, 229. So, in private deaUngs, a pledgee for a debt, with power to sell on default of payment, may himself become tlie purchaser. Hendricks v. Robinson, 2 John. Ch. Rep. 283, 310, 311. So mortgagees may purchase the equity of redemption from the mortgagor (per Lord Redesdale in in Hickes v. Cooke, 4 Dow's P. C. 28), or, it seems, under a power of sale granted by the mort- gage to himself (Bergen v. Bennett, 1 Cain. Cas. Err. 1, 19, 20) ; a right since expressly conferred by statute in New York. 2 R. S. 546, § 7. So, a creditor pledgee may purchase the subject of pledge from the pledgor (Chambers v. Waters, 3 Sim. 42) ; and a creditor may purchase on exe- cution. Stratford v. Twynam, Jac. 418. There is also another large exception to the rule. There is no doubt that the trustee, agent, &o., may, in all oases, openly and in his own name, purchase from his cestui que trust or principal, Ac, provided it appear that he has made full and fair disclosures of his knowledge, and takes no improper advantage. Randall v. Errington, 10 Ves. 422 ; 1 Wils. C. G. 1 ; Ld. Lesley v. Ehoades, 2 Sim. & Stu. Rep. 49, 50 ; Bolton v. Gardner, 3 Paige, 273 ; Lovell v. Briggs, 2 N. H. Rep. 218. The rule is not that the trustee cannot buy from his cestui que trust; but that he shall not buy from himself Per Ld. Eldon, in Ex parte Lacey, 6 Yes. 625, in Downes v. Grazebrook, 3 Meriv. 208, and in Cane v. Ld. Allen, 2 Dow's P. C. 289, 294 ; Faruam v. Brooks, 9 Pick. 225 ; David- son v. Gardner, Sugd. Law of Yend. 425, 426; Parkes v. White, 11 Yes. 209, 225; Clancy's Rights of Husband & Wife, 355, 356; Roper's Law of Husb. & Wife, 262; per Kent, Ch., in Davoue v. Fanning, 2 John. Ch. Rep. 266, 267, citing and commenting on Munroe v. Allaire, 2 Cain. Cas. Err. 183, 193 ; Hendricks v. Robinson, 2 John. Ch. Eep. 311, per Kent, Ch. ; M'Cants V. Bee, 1 M'Cord's Ch. Rep. 339. ,It wiU also be seen by several of these authorities, that the trustee or agent, against whom jealousy arises, must in general be one having power to sell or deal in the subject matter of what is confided to him. If he be constituted for other purposes, he does not come within the prohibition. As to all this class of purchases and contracts by trustees, &c., valid at law, but liable to be opened in equity, terms are always Imposed so as to save the advances of the trustee, &c., and there is no doubt that fairness originally, accompanied with other circumstances (and an unex- plained delay is a very important one), will lead the court to withhold its interierenoe, though the lapse of time be short of twenty years ; and in some cases much short of that time. On this head, of course, no time can be fixed. The judicial dicta are very general, that the party must come within a reasonable time, but vary greatly as to the precise period ; opening a space for a wide discretion. 5 Yes. 280 ; 1 Jac. & Walk. 59 ; 2 Sch. & Lef. 672 ; Gregory v. Gregory, Coop. Ch. Cas. 201 ; Whattou v. Toone, 5 Mad. Rep. 54; Norris v. Le Neve, 3 Atk. 26, 38 ; Price v. Byrn, cited 5 Yes. 681 ; Morse v. Royal, 12 Yes. 355 ; Western v. Oartwright, Sel. Ch. Cas. 34 ; Medlicott v. O'Donel, 1 Ball & Beat. 156; Ohalmer v. Bradley, 1 Jao. k Walk. 51; Oliver v. 694: Of Presumptive Evidence, ■ [CH. x* Court, 8 Price, 121, 167, 168 ; Prevogt v. Gratz, 6 Wheat. 481 ; Hall v. Noyes, cited 3 Tea- 748 ; Bergen T. Bennett, 1 Cain. Caa. Err. 1 ; Butler t. Haskell, 4 Deasaus. Eq. Eep. 651. Various circumstances also ; viz : the existence of any of the legal incapacities, infancy, cover- ture, Ac, and ignorance, as that the trustee, &!., was the real purchaser, the fact that the cestwis que trust were a numerous body of men, as creditors, or a, religious sect, and the like, are adduc- ihle to repel the presumption, or extend the time beyond the statute of limitation. Bunce v- ■Wolcott, 2 Conn. Rep. 27 ; Ohalmer v. Bradley, 1 Jac. & "Walk. 51, 62, per Sir T. Plumer, M. R. ; Morse v. Royal, 12 Yes. 355, 374 et seq. ; Randall t. Errington, 10 Tea. 423 ; Whatton v. Toono. 6 Mad. Rep. 54; 'Whichcote v. Lawrence, 3 Ves. 470, 752 ; Anon. Case in Exch. cited by Rich- ards, arg. 6 Tea. 632 ; Tork Buildings Oomp. v. Mackenzie, 8 Bro. P. C. by Toml. 42 ; Attorney- General V. Id. Dudley, Coop. C. C. 146 ; Hughes v. Wynne, 1 Turn. & Russ. 307 ; Purcell v. M'Namara, 14 Tes. 91 ; Pickett T. Loggon, 14 Ves. 214 ; Hatch t. Hatch, 9 Ves. 292 ; Murray T. Palmer, 2 Sch. & Lef. 474 ; Hardwick y. Mynd, 1 Anstr. 109 ; Kidney T. Ooussmaker, 12 Ves. 136. We have also noticed the effect of delay in respedt to purchasing the expectant interests of reversioners. The contingent interest of heirs, apparent and presumptive, comes within the same reason. It is proper to say that in respect to these and the like purchases and transactions, 'f the party complaining comes in reasonable time, and the bargain appears to have been disad- vantageous, it wiU be set aside without regard to the age of the complainant, on the condition of refunding the defendant ; unless indeed the sale be at public auction. Then it shall stand. Shelly V. Nash, 3 Mad. Rep. 282, 235, 236 ; Gowland v. De Faria, 17 Ves. 20 ; Headen v. Rosher, 1 M'Clell. & Tou. 89; per Lord Eldon, in Davis v. The Duke of Marlborough, 2 Bwanst. 129, 147, 151 (Am. ed.); Marsaok v. Reeves, 6 Mad. Rep. 108; Evans v. Cheshire, Belt's Sup- plem. to Ves. 300, 306, et seq. ; Bowes v. Heape, 3 Ves. & Bea. 117. It lies with the purchaser to show a full consideration ; otherwise it wUl be presumed to have been inadequate. Hincks- man v. Smith, 3 Russ. 433. In these last oases, too, ignorance and fraud aa well as continued distress, will enlarge the limitation of time (Roche v. O'Brien, 1 Ball & Beat. 330) ; and so, it is presumed of other excuses applicable in like eases. These, however, being out of the way, time runs from the completion of the contract, or from the time when all legitimate excuse ceases. Medlicott v. O'Donel, 1 Ball & Beat, 156 ; Whalley v. Whailley, 3 Bligh, 1, 12 ; per Lord .Manners in Roche v. O'Brien, 1 BaU & Beat. 343 ; Earl of Deloraine v. Browne, 3 Bro. C. 0. 633. 22. Certain other equitable and legal rights are also presumed to have been waived by neglect for a long time ; and especially if the lapse of time be accompanied with other acts showing an intention to waive them. Among these are rights of appropriation. Persons claiming under a grantee of the crown certain mud landa covered with navigable water, granted for the evident purpose of having them reclaimed from the sea, and this being a consideration of the grant, appa- rent on its face, they were holden to have waived their rights by non-user, the ground not having been appropriated by them for a great number of years. See Attorney-General v. Richards, 2 Anstr. 603, in connection with Parmeter v. The Att. Gen., the same case, on appeal, 1 Dow's P. C. 316. But where the estate and manor of Ravenaoroft was granted, reserving to the grantor and his heirs " the Wyoh houses, salt works and brine pits, and a piece of land adjoining thereto, &c., and all springs, veins and mines, of brine, salt or salt rock," &o., with liberty to open new pits! and free ingress, &o., though the grantee had long held the estate, and it had passed to others by grants not noticing the reservation; and the owner of the soil had enjoyed, and the pits been filled up, and the ground smoothed; yet held that mere non-user or non-appropriation would not warrant the presumption of a waiver ; and this from the nature of the reservation ; for the possession was not adverse ; it was consistent with the reservation ; and there had been no resistance to the working of the mines under the reservation. Mines are often reserved to be worked for the occasion, lying unwrought for generations. They are often kept and indeed acquired with the express view of being suffered to repose until other mines are exhausted. But the master of the Rolls admitted there were many cases of a different character, where, from a non-exeroiae of the tight, an inference of abandonment would arise. Seaman v. Vawdrey, 16 Ves. 380, 391, 392. And in Adair v.Shaftoe (cited 19 Ves. 156), a simQar reserva- tion of a coal mine was sustained, though there waa a non-user for two centuries ; and the owner of the soil had erected machinery to work it. In Tan Broeck v. Livingston (1 John. Ch. Rep. SEC. II.] Waiver of Legal Rights, by Delay. 695 351), there waa the reservation in the grant, of a right to cut timber and grazing in the woods of the premises granted ; and the chancellor says such rights are like a right of common (p. 362), and may be lost by negligence and disuse. And see 3 Leon. 202, case 254. But the reservation of a mill right to flow another's land was held not barred by a delay of thirty-two years to build the dam. Butz v. Ihre, 1 Rawle, 218. 23. Rights of pre-emption and election must be exercised within a reasonable time, though no limitation be fixed by the instrument granting them. But this must evidently depend on cir- cumstances. Time and opportunity must be given to inquire and gain competent knowledge, in order to act judiciously, and due information should not be withheld by the party complaining of the delay. Sometimes, under a will, a definite rule as to time in the abstract. Much must always depend on the nature ot the property, the changes it has undergone from the lapse of time, the conduct of the one who is to make his election, as whether it be dilatory, fraudulent or prompt and fair ; whether the subject of election be vested or reversionary ; whether the property may not have been passed to bona ^lie purchasers, by persons claiming adverse to the right of election ; and above all, whether the party entitled to elect have not taken such steps as would be construed to determine hia election. So the conduct of the opposite party is to be con- sidered ; for he may go so far as to have waived the right to compel an election. The oases present too much circumstantial variety, and call for too large an exercise of discretion, to war- rant the laying down of general rules. Huckstep v. Mathews, 1 Tern. 362 ; Grby v. Trigg, 9 Mod. 2 ; Pusey v. Deabouverie, 3 P. "Wms. 316 ; "Wake v. "Wake, 3 Bro. C. 0. 255 ; S. C, 1 Tes. jun. 335; "Whistler v. "Webster, 2 Tes. jun. 367, 311; Eumbold v. Eumbold, 3 Tes. jun. 65; Beaulieu v. Lord Cardigan, Ambl. 533 ; S. C, on appeal, 3 Bro. P. C, by Toml. 271 ; the decision on appeal questioned in Butricke v. Broadhurst, 1 Tes. jun. 172; Edwards v. Morgan, M'Clel. 541 ; Stratford v. Powell, 1 BaU & Beat. 1 ; Tucker v. Sanger, M'Clel. 424, 439 ; Earl of North- umberland V. Marquis of Granby, 1 Eden, 489 ; Duke of Northumberland v. Lord Egremont, Ambl. 627 ; Ardeaoif v. Bennet, Dick, 463 ; Tibbita v. Tibbita, 19 Tes. '656 ; per Lord Hard- wicke, in Tompkins v. Ladbroke, 2 Tes. sen. 593 ; ia Pawlet v. Delaval, 2 Tea. sen. 668 ; and in Harvey V. Ashley, 3 Atk. 616; Butricke v. Broadhurst, 1 Tea. jun. 171; S. C, 3 Bro. C. C. 88; Pettiward v. Prescott, 7 Tes. 541 ; Cull v. ShoweU, Ambl. 727 ; Yate v. Mosely, 5 Tea. 480 ; Nel- son V. Carrington, 4 Munf 332. See "Watts' Bx'rs and Heira v. "Waddle, 6 Pet. 389, 393 to 396. These casea in point of time range from a year and a half to fifty years, taking in all manner of circumstances. 24. As to a waiver of a right of dower by delay, see per Richardson, C. J., in Barnard v. Edwarda, 4 N. H. Rep. 109 ; Boyle v, Rowand, 3 Dessauss. Eq. Rep. 555, 556, and note ; "War- field V. Castlemain, 5 Monroe, 518 ; and "Wells v. O'Beal, 2 Gill & John. 468. 25. An equitable right to a provision by settlement has, in some inatancea, been lost by the laches of the party, under peculiar circumstances. Johnson v. Johnson, 1 Jac. & "Walk. 472, 479 ; Parker v. Phillips, 1 Tes. sen. 530. 26. So an equitable title to an estate under a devise may be waived by delay and strong circumstances, even short of twenty years. Delay merely, will not avail short of the twenty years. Pearoe v. Newlyn, 3 Mad. Rep. 186 ; Davie v. Beardaham, 1 Caa. Ch. 39 ; S. C, 3 Ch- Rep. 4.; Mutloe v. Smith, 3 Austr. 709. So of an issue of deviscmit vel non. Tucker v. Sanger M'Clel. 24. ^ 27. So delay is a strong circumstance in equity against granting a decree for specific perform- ance. The 'salutary power of chancery to decree a specific performance of agreements to convey land, whether the bUl be filed by the vendor or vendee, is often called into exercise ; and is so familiar, that no cases or illustrations are necessary to show its general character. These con" tracts are either indefinite in terms as to time, i. e. A. agreea to sell real estate to B., and B' agrees to pay without mentioning the time when these things are to be done ; or (which is more usual) 'a day, and sometimes a place is fixed. And it ia well known that, where the covenants are concurrent or conditional, these must be adhered to with great strictness, at law, or all remedy is gone. Time is there considered of the essence of the contract, and, if the day passes' the party failing is remediless. The law demands of him a positive, an active performance, or doing his utmost, and a refusal by the other party, at the day fixed, and with all the fullness and exactness of a condition precedent. And this though the adverse party remain merely pasaive- Nor, if the immediate opportunity be let slip, will any subsequent circumstances of silence, o' Of Presumptive Evidence, [CH. X continuing possession, or even entire performance, restore one particle of vigor to the dead body of the original contract. It is true that where, with the express or implied assent of the other party, the matter contemplated by the original contract is performed, or indeed if it be partly per- formed with his assent, or performed in a different manner, this may be looked to as creating a new and distinct contract, and giving rise to a new remedy at law; but the original contract is gone forever. The English cases distinguishing between dependent, concurrent and independent covenants, and between covenants and conditions, are well collected and arranged in Piatt on Covenants, 70 to ItO. The American cases are numerous. Frazier v. Cushman, 12 Mass. Rep. 271; Baker V. Legrand, 1 Litt. Sel. Cas. 253; Hagedou v. Laine, 1 Marsh. 514; Gardner v. Corson, 15 Mass. Rep. 600 ; Green v. Reynolds, 2 John. Eep. 207 ; Cunningham v. Morrel, 10 John. Rep. 203; Green v. Gardner, 10 John. Rep. 266; Asberry v. Macklin, 3 Monroe, 9, 10; Morford v. Mastin, 6 Monroe, 612, 615 ; City Bank v. Smith, 3 Gill. & John. 281 ; Gazely v. Price, 16 John. Eep. 267 ; Hardin v. Kretsinger, 17 John, Rep. 293; Rob v. Montgomery, 20 John. Rep. ] 5 ; Miller v. Drake, 1 Cain. Rep. 45 ; "West v. Emmons, 5 John. Rep. 179, 180, 181, per Van Ness, J.; Porter v. Rose, 12 John. Eep. 209, 212; Judson v. "Wass, 11 John. Rep. 525; Hudson V. Swift, 20 John. Rep. 24 ; Parker v. Pannele, 20 John. Eep. 130 ; M'Gaunten v. Wilber, 1 Cowen's Rep. 257 ; Chapman v. Lathrop, 6 Cowen'a Eep. 110; Clarkson v. Carter, 3 Cowen's Rep. 84; Topping v. Root, 5 Cowen's Rep. 404; Johnson v. Reed, 9 Mass. Rep. 78; Dana v. Eling, 2 Pick. 155; Hunt v. Livermore, 5 Pick. 395 ; Couch v. Ingersoll, 2 Pick. 292; Bank of Columbia v. Hagner, 1 Pet. S. C. Rep. 455 ; Rounds v. Baxter, 4 Greenl. 454 ; Stanley V. Stanley, 2 N. H. Rep. 364, 366 ; Watkins v. Hodges, 6 Har. & John. 38 ; Bailey v. Clay, 4 Rand. 346 ; Brockenbrough v. Ward's Adm'r, 4 Rand. 352 ; Robertson v. Robertson, 3 Rand. 68 ; Davis V. Crawford, 2 Eep. Const. Court. 401; Harrison v. Taylor, 3 Marsh. Eep. 168; Marshall V. Craig, 1 Bibb, 379; Stuteville v. Miles, 2 Marsh. Rep. 425 ; Elliot v. Carneal, 2 Marsh. Eep. 308 ; Van Benthuysen v. Crapser, 8 John. Eep. 257 ; Alexander's Ex'rs v. Mann, 6 Monroe, 361; Morford v. Mastin, 6 Monroe, 612, 615 ; Howland v. Leach, 10 Pick. 151 ; Passmore's Heirs v. Moore, 1 J. J. Marsh. 591, 592 ; Porter v. Stewart, 2 Aik. 417 ; Dakin v. Williams, 11 Wendell, 67 ; Johnson v. Wygant, Id. 48. The quotations, in which I have confined myself mostly to questions between vendor and vendee, will fully show that, where performance on one side, or an offer to perform and a refusal, is a condition precedent to a right of demand against the other, the law adheres exactly to the day and all other circumstances. With regard to cases in which the mutual stipulations are not dependent one upon the other, but a performance may be exacted without any previous steps by the party who demands it, the power of a court of chancery to decree performance has always been conceded. But, as to cases of condition precedent, in Benedict v. Lynch (1 John. Ch. Cas. 375), the late learned Chancellor of New York, after great examination, insists that, where the party in default can show no good excuse, and the opposite party does not acquiesce in the default, a specific performance will'not be decreed against him. He says this is an acknowledged rule in courts of equity. He examines the cases and dicta on which the opposite doctrine is placed, and denies that any one of them exhibits a mere unmixed case of delay to perform the condition. On the other hand, he insists that some other circumstance must have entered into the matter, &c. That courts of equity have, of late, discountenanced the least neglect, he refers to several cases. The case he was himself consider- ing was one of unreasonable delay, under an agreement containing an express nullifying clause. But whatever may be finally held, when a case of naked delay shall present itself, it is certain that the smallest excuse for passing the day — one may almost say the merest evasion — ^will bo seized on by a court of equity to keep the contract alive. In the authorities cited by the chan- cellor and others, the vendor's title not being complete so that he can convey at the day, or the purchaser receiving an abstract af1;er the day, without then objecting to the delay — or, indeed, omitting to clamor for an abstract before it is too late for the vendor to furnish it at the day — or treating about the matter, after the day — will be deemed in the one case an excuse for the vendor, and in the other an acquiescence in his delay ; that is to say, the vendor's own fault of having no title will excuse him in the first place, and his stupidity or forgetfulness in the other. Omerod V. Hardman, 5 Ves. jun. 722 ; Cofiin v. Cooper, 14 Ves. 205 ; Pincke v. Curteis, 4 Era C. C. 329 ; Smith V. Burnum, 2 Anstr. 527 ; Seton v. Slade, 7 Ves. 265 ; Guest v. Homfray, 6 Ves. 818 ; Stourton v. Meers, cited and stated, 2 P. Wms. 631; Sheffield v. Mulgrave, 2 Ves. jun. 626 J SEC. II.] In Actions for Specific Performance. 697 Jonea v. Price, 3 Anstr. 924; Hertford v. Boore, 5 Yes. UB ; Milward v. Thanet, 5 Vea. 720, note l; Hoggart v. Scott, 1 Russ. & Mylne, 293. So, if the estate be described as in good repain and is not so, but requires several months after the day to repair and make it agree with the description. Dyer v. Hargrave, 10 Tes. 60.5. And a learned writer advises that, where a title cannot be made at the day, the vendor should file a bill aa the means of prolonging the time, or creating farther delay until a title may be completed (Sugd. Law of Tend. 282, Phila. ed. 1820)) and he cites 6 Ves. jun, 655, and 10 Ves. jun. 315. In Seymour v. Delancey (6 John. Ch. Eep. 222, 234), Chancellor Kent sought again to bring back the chancery doctrine to legal strictness, and expresses a determination not to allow a specific performance where the vendor is not able to convey at the day. 6 John. Ch. Rep. 234. He certainly labored against a great weight of authority ; and, when the case came to the Court of Errors, they repudiated his opinion. Seymour V. Delancey, 3 Oowen's Rep. 445, 519, 535. The cases and dicta against him were there cited, and see Tyree v. "Williams, 3 Bibb, 365 ; De Camp v. Peay, 2 Serg., k Eawle, 5 ; Nelson v. Car- rington, 4 Munf 332 ; and Gibbs v. Champion, 3 Hamm. 335. These cases, with those cited in 3 Cowen (supru), seem to settle the question in England, New York, Virginia, Pennsylvania, Ken- tucky, South Carolina and Ohio. And it is also treated as well settled in the courts of the United States. Bank of Columbia v. Hagner, 1 Pet. S. C. Rep. 466, 461, per Thompson, J. In Kentucky, a strong disposition has been manifested to withhold a decree, where the delay is negligent, unless it he occasioned by the state of the title ; and even then if by stipulation the time of performance be made material. Per Boyle, Ch. J., in Cotton v. "Ward, 3 Monroe, 313. Tet the same judge holds that negligence shall be no excuse where the contract is partly exe- cuted, as by delivering possession. Id. But in a case immediately following, neglect to convey at the day was overlooked, although the title was good, and the contract executory ; the court holding it enough that the vendor manifestly continued willing to convey; and had not trifled with his vendee. Mason v. Chambers, 3 Monroe, 318, 322. And where the negligence is ac- counted for, and there is a part execution, a decree may be had, if the conveyance be promptly tendered, even after an action at law for the breach is commenced, and a verdict obtained. Cook's Adm'r v. Hendricks, 4 Monroe, 500, 501. And see Hoggart v. Scott, 1 Russ. & Mylne, 293. Otherwise, if there be supine neglect, and the application to a court of equity be delayed till after damages at law assessed. Edwards v. Handley, Hardin, 602 ; Oldham v. "Woods, 2 Mon- roe, 48 ; per Bibb, C. J., in Cook's Adm'r v. Hendricks, 4 Monroe, 500. In a subsequent case, a labored argument of Bibb, C. J., and a quotation of authorities, results in the conclusion that time alone, unconnected with other circumstances, is never an objection, unless the delay be very great. Kercheval v. Swope, 6 Monroe, 363, 365 to 368. Part execu- tion (a payment), is again much relied on in this case. Id. 368. This doctrine of delay was again considered at large in Doss v. Cooper (2 J. J. Marsh. 409, 410 to 413); where it is insisted that the least delay must be excused ; and a very strict account rendered, or a decree will not follow. See also Caldwell's Heirs v. "White, 4 Monroe, 561, 567. In the still subsequent case of Craig V. Martin (3 J. J. Marsh, 50, 54), the same doctrine is recognized; but relief against a judgment for damages at law refused, the conduct of the plaintiff having been fair. Great stress is again laid in this case, on a part execution, as overcoming delay. In a recent case in Maryland, the Court of Appeals admit the doctrine that the non-perform- ance of a condition precedent may be relieved against, where the default admits of compensation ; as between vendor and vendee ; but they deny relief in the particular case, as not being one of this description. It was a case of lottery prizes, there being due depending on a demand within a certain time. City Bank of Baltimore v. Smith, 265, 280, 281. And in all cases, though of a defect of title, the conduct of the vendor should appear to have been free from fraud as to the defect ; and, especially where a long time, e. g. twenty years, shall have run without title, a decree will be refused, unless the vendor clear himself from aU suspicion of fraud. "WUliams v. Mattocks, 3 Verm. Rep. 189. On the whole, it cannot be disguised, that most of our courts of chancery will not consider the day material, where no injury arises from the delay. Though this may not have been directly decided in England, yet eveiy case which allows time beyond the day to complete the title, &o., most certainly involves that proposition ; which has been thus indirectly decided a thousanfi times ; and it has been as often declared in dicta. Cases decide it, chancellors, judges at law, elementary writers, all recognize it. The very complaint we hear at law, that " the power is at- 698 Of Presumptive Evidence, {CB.. x tended with dreadful effects in the delay thereby occasioned," (per Mansfield, C. J., in "Wilde v. Port, interrupting Shepherd and Best, serg'ts, wrg., 4 Taunt. 341), confirms it. But vfhat is directly material to the head we are considering, it is certain that inexcusable de- lay is a circumstance, among others, to weigh against a specific execution ; though how soon mere naked laches shall foreclose the party, has not been held. The nature of the property, as whether real or personal, land or rents, reversionary or in possession ; also its change of value in the course of the delay, or the purchaser's purpose being defeated by delay, taking and continu- ing in possession, treating and negotiation kept on foot after the day, silent acquiescence, pro- ceeding at law, taking any steps ; forbearance to declare an intention of breaking off, tri flin g, insincerity and fraud, matter of excuse f* the delay, &c., all run through the cases ; and show this to be another of those subjects which rest in a very large discretion, and Irom which no general rules can be gathered as to delay in the abstract. Watts v. "Waddle, 6 Pet. 389; Miller V. Bear, 3 Paige, 466 ; per Lord Alvanley, in Milward v. Thanet, 5 Ves. '720, note 5 ; per Lord Manners, in Moore v. Blake, 1 Ball & Beat. 68, 69 ; Guest v. Homfray, 5 Yes. 818 ; Harrington V. "Wheeler, 4 Ves. 686 ; Spurrier v. Hancock, 4 "Ves. 667 ; Alley v. Desohamps, 13 Ves. 225 ; Heaphy v. Hill, 2 Sim. & Stu. 29 ; Mackreth v. Marlar, 1 Cox's C. C. 259 ; Lloyd v. CoUett, 4 Bro. 0. 0. 469 ; B. C, 4 Tes. 689, note h; Fordyoe v. Pord, 4 Bro. C. C. 49T, 498 ; Omerod v. Htirdman, 5 Tes. 722 ; Barbour v. "Whitlock, 4 Monroe, 195 to 199 ; Milward v. Earl of Thanet, 5 Yes. 720, note J ; Hayes v. Caryl!, 1 Bro. P. C. by Toml. 126 ; Coward v. Odingsale, 2 Bq. Cas. Abr. 688, pi. 5; Bell v. Howard, 9 Mod. 302 ; Newman v. Rogers, 4 Bro. C. C. 391 ; Wing- field V. Whaley, 1 Bro. P. C. by Toml. 200 ; Moore v. Blake, 1 Ball k Beat. 62 ; Popham v. ■^yre, Lofft, 786 ; per Lord Eedesdale, m Crofton v. Ormsly, 2 Sch. & Let 603, 604, and the cases there mentioned by way of illustration ; Marquis of Hertford v. Boore, 5 Yes. 719 ; Waters v. Travis, 9 John. Eep. 450 ; Butler v. O'Hear, 1 Dessauss. Bq. Rep. 398, per the chancellor ; Osborne v. Bremar, 1 Dessauss. Bq. Rep. 486 ; Brashier v. Gratz, 6 Wheait. 528 ; Hepburn v. Auld, 5 Cranch, 262, 276 ; Tyree v. Williams, 3 Bibb, 365 ; Bank of Columbia v. Hagner, 1 Pet. S. C. Rep. 465, 466, per Thompson, J., citing Sugd. Law of Yend. 275, with approbation ; Gibbs v. Cook, 4 Bibb, 535 ; Benedict v. Lynch, 1 John. Ch. Rep. 375 ; Seymour v. Delancey, 6 John. Ch. Rep. 222, 234 ; S. C, on appeal, 3 Cowen's Rep. 445, 519, 535 ; De Camp v. Peay, 5 Serg. k Rawle, 323 ; Pratt v. Carroll, 8 Cranch, 471 ; Hatch v. Cobb, 4 John. Oh. Rep. 559; Matter pf Shoemaker, 1 Rawle, 89; Walker v. Walker, 16 Serg. k Rawle, 379 ; M'Neil v. M'Gtee, 5 Mason, 244; Pope v. LemaSter, 5 Litt. Rep. 78; Bates v. Todd's Heirs, 4 Litt. Rep. 178; Mason v. Chambers, 3 Monroe, 332 ; Doss v. Cooper, 2 J. J. Marsh. 412, 413 ; Craig v. Martin, 3 J. J. Marsh. 53, 54, 55 ; Hoggart v. Scott, 1 Russ. k Mylne, 293. This doctrine of delay, in an independent promise to convey, was, in one case, carried very far at law. Though the plaintiff had a right, without any express limitation of time, to demand a deed, On tendering his bond and mortgage, yet a delay of four years was held such evidence of "Waiver as to bar hi6 action of assumpsit, the Supreme Court saying they would follow the rule in chancery. Ballard v. Walker, 3 John. Cas. 60. 28. Courts of equity wiU in like manner relieve a lessee, or his assignee, under a lease contain- ing a covenant for renewal on certain conditions, although he may not literally have complied within the time specified, but a good reason for the omission must be given. Ross v. Worsop, 1 Bro. P. C. by Toml. 281 ; Rawstome v. Bentley, 4 Bro. C. C. 415 ; Bayley v. Corporation of Leo- minster, 3 Bro. P. C. 529; Eaton v. Lyon, 3 Yesey, 690; Maxwell v. Ward, M'Olel. 458, 464; Baynham v. Guy's Hospital, 3 Yesey, 295. And the party must be very prompt to apply for a renewal. The least unexplained delay will work a forfeiture of the right. Eaton v. Lyon, 3 Yesey, 690, 693, '696, 696 ; Maxwell v. Ward, M'Olel. 458, 467, 468. Even ignorance of his rights, to which the opposite party is in no way auxiliary, is not an excuse. Maxwell v. Ward, M'Clel. 458, 464. See the Irish cases on this head. Davis v. Oliver, 1 RidgW. P. 0. 1 ; Sentleger V. Chartres, Id. 122 ; O'Neil v. Morris, Id. 170 ; Kane v. Hamilton, Id. 180 ; Bateman v. Murray, Id. 187 ; Boyle V. Lysaght, Id. 384; S. C, Yern. k Soriven'a Rep. 135 ; Magrath v. Muskerry, 1 Rigdw. P. C. 469 ; S. C, Yernon & Scriven's Rep. 1 66 ; Freeman v. Boyle, 2 Ridgw. P. 0. 69 ; Duchess Dowager of Chaudos v. BroWnlow, Id. 345 ; Palmer v. Hamilton, Id. 535 ; Earl of In- Chiquin v. BumeU, 3 Ridgw. P. 0. 376. 29. It has beeh 'strongly intimated, though hot directly decided, that delay by a landlord for twenty years, to enter for a forfeiture of hia tenant's right, by the non-fulfillment of a condition! SEC. II.] Effect of Delay on Legal Rights. 699 shall, under the Statute of Limitations, operate as a har to his right of entry. Per Lord Kenyon, C. J., and Ashurst, J., in Doe dem. Tarrant v. Hellier, 3 T. R. \1i, ITS. That long delaywould be a powerful argument for a waiver of the right, in connection with other circumstances ; and that it would in time, per se, he full evidence of a, waiver, there can he no doubt (Doe dem. Tarrant v. Hellier, 3 T. R. 162 ; Malone v. Maloue, 1 Ball & Beat. 32, note a ; and a distinct act, or even a declaration directly incompatible with the idea of insisting on the forfeiture, done or made after, and with knowledge that it is incurred, will be adopted as a waiver. . MUfax v. Baker, 1 Lev. 26 ; Malone v. Malone, 1 Ball & Beat. 32, note a. But, for this subject at large, see Vol. II. 30. So, on the other hand, a re-entry for breach of condition, regular and formal at the com- mon law, may be presumed from the lapse of time during which the lessor has possessed. This has been done after fourteen years. Jackson ex dem. Goose v. Demarest, 2 Cain. Rep, 382 ; Jackson ex dem. Smith v. Stewart, 6 John. Rep. 34. But it was denied that nine yeara' possession would warrant the presumption. Jackson ex dem. Donally v. "Walsh, 3 John. Rep. '226. And in a subsequent ease, it is declared that any time short of fourteen years is not enough. Jackson ex dem. Myers v. Ellsworth, 20 John. Rep. 180. After one lease given for raghty-one years to one, and then a second and third lease by the reversioner to another, the original lessee being out of possession, leaving the latter lessees or their assignees in possession, who paid rent for a long time, a surrender or assignment of the first was presumed. Westropp's Lessee v. Moore, 2 Pox & Smith, 363. 31. The lapse of time or delay by legatees and distributees, to call on executors or adminis- trators, will not bar a claim against them to distribute the general residue of an estate remaining in their hands ; for they are mere trustees (Stackpole v. Staekpole, 4 Dow, 209) ; though extra- ordinary acts of acquiescence, concurring with a delay of forty years, was once holden to work that effect. Huet v. Fletcher, 1 Atk. 467. Tet, if they allow the estate to be distributed, though erroneously, and acquiesce with full knowledge and the means of enforcing their rights for a long time, the executor or administrator is discharged. Boiling v. BoUiug, 5 Munf 334 ; -Hudson V. Hudson's Bx'r, 3 Rand. 117 ; Rayner v. Pearsall, 3 John. Ch. Cas. 578; Pickerisg V, Stamford, 2 Tesey, jun., 272, 581, 583 ; S. C, 4 Bro. 0. C. 214, 219, 220. And see 17 Ves. 165, and Newton v. Ayscough, 19 Yes. 534. And this especially where no great private or public inconvenience is to arise. But in cases of such acquiescence, the decree wiU be confined to the corpus merely, and not extended to the annual produce or interest, or other accruing benefit. See 2 Ves. 585. 32. The same principle seems to apply to creditors who have stood by and seen the debtor's estate distributed ; and such laches wUl preclude their bill for an account not only against the personal representatives, but as against the legatees or distributees ; and especially after .great lapse of time. It wiU be presumed that their debts are paid or released. But such and the like presumptions may be repelled by circumstances. Hercy v. Dinwoody, 4 Bro. C. C. 257 ; S. C, 2 Ves. jun. 86 ; Hardwick v. Mynd, 1 Anst. 109. And see Newton v. Ayscough, 19 Ves. 534. The objection becomes conclusive against the creditors where, after a legacy has been purchased by a third person, they delay proceeding against the purchaser for an unreasonable time. Chol- mondeley v. Orford, Sugd. Law of Vend. 524, 625 (Am. ed. of 1820); Elliott v. Mrariman, 2 Atk. 41. 33. The delay of infants or minors, after coming of age, to demand their legacies or distribu- tive shares from executors or administrators who have, during the minority of the claimants, made payments to or delivered their legacies or shares to wrong persons, though by mistake, must be very great to bar their claim for a payment or delivery to themselves. A payment to the infant or his father, or a foreign guardian, during minority, wUl generally be holden null, tm- less the sum be very small, or the will direct payment to the infant. Lee v. Brown, 4 Ves^, 362; Genet's ChildTen v. TaUmadge, 1 John. Ch. Rep. 3; Holloway v. Collins, 1 Cas. Ch. :24S; Strickland v. Hudson, 3 Ch. Rep. 88 ; Dagley v. Tolferry, 1 P. "Wms. 285 ; S. C, 1 Eq. CaS. Abr. 300, pi. 2 ; S. C, Gilb. Eq. Rep. 103 ; Philips v. Paget, 2 Atk. 80 ; Cooper v. Thornton, 3 Bro- C. C. 96, 186 ; MorreU v. Bickey, 3 John. Ch. Rep. 153 ; "Williams v. Storrs, 6 Id. 353 ; Hill v. Chapman, 2 Bro. C. C. 612 ; Bilson v. Saunders, Bunb. 240. The two cases of HoUoway v. Col- lins, and Bilson v. Saunders, are overruled by the others. A guardian should be appointed for that purpose, if the security given by the general guardian be insufficient. Genet's Children v. TaUmadge, 1 John. Ch. Rep. 3. Though now in New York, a legacy of less than fifty doUara 700 Of Presumptive Evidence, [CH, X. may be paid to the father. 2 R. S. 91. In general, where a wrong payment has been made, and the delay after the infant coming of age, has not been accompanied with plain acts of recognition, or very long aoquiesoenoe, the executor or administrator must pay to the infant a second time. Fifteen years of mere delay was holden not enough to create a presumptive bar. Dagley v. Tol- ferry, 1 P. "Wms. 285 ; Philips v. Paget, 2 Atk. 80; Lee v. Brown, 4 Tes. 362. ' So far as these oases relate to the claims of legatees and distributees against executors and administrators, for an account and payment, their application we have seen [supra), in this note, has been denied, or at least much qualified in those states where a statute gives a concurrent remedy to the courts of law ; and it would probably be so in many cases with regard to creditors. 34. Acquiescence by a cestui que tnwi, in a breach of .trust committed by his trustee, wUl, unless excused and accounted for, preclude him from complaint, the same as an active concur- rence in the breach. Per Lord Eldon, in Walker v. Symonds, 3 Swanst. 64. Thus, where there were B. and several other cestuis que trust of land, and M. and P., the trustees, in violation of their duty, sold the land and joined in a receipt for the purchase money, but P. actually received the money, and with the acquiescence of B., held it for ten years, and till he died insolvent ; held, that B. had, by such acquiescence, discharged M. from his original liabihty for the money. Brioe V. Stokes, 11 Ves. ,319. But the mere silence of a body of creditors under a misapplication oi a trust fund, provided for their benefit, would not be so readily construed against them (Hardwick v. Mynd, 1 Anst. 109 ; Kidney v. Coussmaker, 12 Tes. 136, 138) ; unless, indeed, they seek to go beyond the trustees, and make a purchaser liable for the misapplication. Elliott v. Merriman, 2 Atk. 41. 35. Delay by the cestui que trust in calling on one who purchased from a trustee, under such circumstances as renders the purchaser bound to see the purchase money applied for the benefit of the cestui que trust, will also discharge the purchaser. The oas^s in which this obligation may be said to arise, will be seen in Mr. Rand's ed. of Pow. on Mortgage, Vol. 1, ch. 9, p. 14, et seq. These cases are much abridged in number, if not abolished, in New York, where there is no fraud. 1 E. S. 730, § 66. The shortest period of delay, by the cestui que trust, in this last class oi cases, which has been particularly allowed as a bar, is not short of twenty-two years. Cusse v. Ash, Rep. temp. Pinch, 316. But Mr. Mathews thinks there is no doubt that an unexplained delay of twenty years would be a full answer to the claim. Math. Pr. Ev. 433. 36. Several miscellaneous cases as to account, go on the same principle. Even a suit and decree for an account, cannot be continued or carried into effect after n, great length of time. Pearson v. Belchier, 4 Ves. 62'7. So of a decree and order of reference to fix an occupation rent. Lord Shipbrooke v. Lord Hinohinbrooke, 13 Ves. 387, 396. So the Court of Common Pleas, after great delay, refused to exercise, or even to entertain a motion to exercise, a summary power given to them by statute, of appointing a new assignee of an insolvent debtor, with a view to compelling an account of a previous assignee. Ex parte Heathfield, 8 Taunt. 403. Chancery will not interfere with stale and complicated accounts (Sturt v. Mellish, 2 Atk. 610) ; and a lump- ing and irregular sale by a sheriff, will not be set aside after a great lapse of time. Mohawk Bank v. Atwater, 2 Paige, 54. So a settlement of accounts with trustees or between other persons, whether such settlement be actual or constructive, will not, in general, be totally unraveled after great delay. But the complainant may surcharge and falsify ; and if there be fraud, the whole of any account, though settled, may be thrown open at an indefinite period. Skinner v. Skinner, 1 J. J. Marsh. 594 ; Irvine v. Robertson, 3 Rand. 549; Gregory's Ex'rs v. Forrester, 1 M'Cord's Ch. Rep. 331, 332 ; Randolph's Bx'r v. Randolph's Ex'rs, 1 Hen. & Munf. 180; Murray v. Toland, 3 John. Ch. Rep. 569, 574, 675 ; per Lord Hardwioke, in Roberts v. Ou£Bn, 2 Atk. 113 ; Brownell v. BrowneU, 2 Bro. C. C. 62; Western v. Cartwright, Sel. Cas. Ch. 34; Vernon v. Vawdry, 2 Atk. 119 ; S. C, Barnard. Ch. Rep. 280; Sewell v. Bridge, 1 Ves. sen. 297; Pratt v. Weyman, 1 M'Cord's Ch. Rep. 156. And see Watson v. Toone, 6 Mad. Ch. Rep. 153. Accounts between merchants, though excepted in the Statute of Limitations, would never be investigated by courts of chancery, where the deahngs in question had been long discontinued; and it is now settled in those courts that after six years' total discontinuance, they come within the statute. Sherman v. Sherman, 2 Vern. 276 ; Bridges v. Mitchell, Gilb. Eq. Rep. 225 ; Martin SEC. II.] Delay, when Available as a Defence. 701 V. Heathoote, 2 Eden, 169; Barber v. Barber, 18 Vea. 286. But see Lansdale v. Brashear, 3 Monroe, 330 ; and Patterson v. Brown, 6 Id. 10, 11, contra. The statute may be pleaded to a bill to prevent setting up outstanding terms. Jermy v. Best, 1 Sim. 373. But six years was denied to be a bar of an attorney's lien for his biU of costs. Higgins v- Scott, 2 Bamw. & Adolph. 113. The statute has no application, in the state of Maine, to claims in the Court of Probate. Heald T. Heald, 5 Greenl. 381. 37. Other cases show the force of delay and acquiescence. These will sanction the inclosure of common appurtenant (Tufton v. "Wentworth, 5 Tin. Abr. 8, pi. 32), subvert the rights ot femes covert to their separate estate (Burke v. Crosbie, 1 Ball & Beat. 489), work a forfeiture of their estate in land conveyed by their husbands (Swanton v. Raven, 3 Atk. 105), explain away ob- jections to conveyances originally obtained upon improper influence (Brown v. Carter, 5 Vea. 862. See also TweddeU v. Tweddell, 1 Turn. 1), and render annuities valid even where the con- sideration is disputed, or the ceremonies required by the annuity acts have been inaccurately per-. formed. Symmons v. Mortimer, 5 T. E. 139 ; Ex parte Maxwell, 2 East, 85. See also Poole v. V. Cabanes, 8 T. R. 328 ; also a case referred to by Lord Erskine, 12 Tes. 378, and per Park, J., 1 Bing. 240. It seems agreed, however, that a total non-comphance with any of the direct and positive provisions of the statute, such as admit neither of explanation nor excuse, or if any in- equitable advantage was taken of the grantor, the lapse of time will not avail. Van Bramm v. Isaacs, 1 Bos. & PuU. 451 ; Ex parte Sir R. Mackreth, 2 East, 663 ; Drake v. Rogers, 2 Brod. & Bing. 19 ; Williamson v. Goold, 1 Bing. 234 ; Cabton v. Porter, 2 Bing. 370 38. Ignorance of the right presumed to have been released or waived by delay, is, sometimes, though cautiously, received as an answer to the presumption in courts of equity. Per Lord Com- missioner Gilbert, Sel. Ch. Cas. 11 ; Cowper v. Cowper, 2 P. Wms. 730 ; per Sir W. Grant, in Choldmondeley v. Clinton, 2 Meriv. 262 ; per Sir T. Plumer, m S. C, 2 Jao. & Walk. 142 ; Storrs V. Barker, 6 John. Ch. Rep. 166. But it will be seen by the two last oases that a mistake of the right is no answer, even in equity, to the Statute of Limitations. 39. It will be perceived on examining the cases upon several of the above heads, and espe- cially the latter heads, that no certain time is given within which the presumptive bar, release, waiver or abandonment, shall arise ; and that the only criteria, or fatal laches, are the nature of the demand, and the inconvenience, public or private, of allowing it to be enforced against the opposite party at a remote period. Thus, in matters of election and specific execution; great promptness and diligence are demanded. Creditors or next of kin, permitting an erroneous dis- tribution, stand upon much the same ground. But where no striking argument of inconvenience arises, the courts are warranted in allowing a time corresponding to the Statute of Limitations ; six years as to personal, and twenty years as to real estate. It has been suggested by Chancellor Kent, that twenty years unexeused delay would, at com- mon law, bar the prosecution for a divorce on the ground of adultery (Williamson v. Williamson, 1 John. Ch. Eep. 488, 492, 493) ; and after twenty years, senib. an execution cannot be set aside by the party, so as to affect the iona fide purchaser under it. Jackson ex dem. Livingston v. Delanoy, 13 John. Rep. 537. The limitation of the right to revoke the probate of a will in com- mon form, seems to be thirty years. Brown v. Gibson, 1 Nott & M'Cord, 326. 40. As to the maxim, maUvm, tempus occurrii reipuhlicce, see the following cases : Lindsey y. Miller, 6 Pet. 666 ; Birch v. Alexander, 1 Wash. Virg. Rep. 34 ; Den v. Herring, 1 Murph. 414; Bagley v. Wallace, 16 Serg. & Rawle, 285 ; United States v. Hoar, 2 Mason, 311 ; Johnston v. Irwin, 3 Serg. & Rawle, 291 ; The People v. The Supervisors of Columbia, 10 Wend. 363 ; Kemp V. The Commonwealth, 1 Hen. & Munf 85 ; AUston's Lessee v. Saunders, 1 Bay, 26 ; Stoughton V. Baker, 4 Mass. Rep. 628, per Parsons, C. J.; Vooght v. Winch, 2 Barn. & Aid. 662 ; Carter V. Murcott, 4 Burr. 2163 ; per Lord EUenborough, 7 East, 199. 41. The opinion of Lord Camden, in Smith v. Clay (Ambl. 645 ; S. C, 3 Bro. C. C. 630, note), may be read with great advantage, as embodying the principles on which courts of equity deal with stale demands, or act in analogy to the Statute of Limitations. 42. As to the manner in which the statute, or lapse of tune, may be introduced as a bar in a court of equity, in general, the defendant cannot demur, though the delay appear on the face of the bill. Mit£ Plead. (3d ed.)pp. 172, 173, 174; Frazer v. Moor, Mos. 54; Hercy v. Dinwoody 702 Of Presumptive Evidence, [CH. X, 4 Bro. 0. 0. 268 ; 2 Ves. jun. 81, 91 ; S. 0. and S. P., Earl of Deloraia© v. Browne, 3 Bra. C. C. 633, 646 ; Gregory v. Moleaworth, 2 Tea. sen. 109 ; M'Dowl v. Charles, 6 John. Ch. Kep. 132 ; Payne v. Hathaway, 3 Verm. Kep. 212. On the other hand, several oases seem to have recog- nized a demurrer as applicable. Palmer v. "Whettenhal, 1 Caa. Ch. 184; Hovenden v. Ld. -^nnesley, 2 Soh. k Lef. 637, 638 ; Beckford v. Close, cited in 3 Bro. C. C. 644; per M. R. in Hardy V. Reeves, 4 Ves. jun. 476, 479; 2 Sch. & lef. 638. And see Ex'rs of Livingston v. IiivJngston, 4 John. Ch. Rep. 294, 295, 297. In general, the delay must, of course, be pleaded ; for the complainant vriU not, if he can avoid it, show a full and unquahfied case of delay on the face of hia bill. Saunders v. Herd, 1 Ch. Rep. 184 ; Hollingahead's Case, 1 P. Wms. 742 ; Goodrich v. Pendleton, 3 John. Ch. Rep. 384 ; Bell V. Beeman, 3 Murph. Rep. 273, 277. That is to say, where the statute is a positive bar in equity, it should be interposed by way of a plea or answer ; e. g. where the remedy is concurrent at law ; or by way of answer where the statute comes in not propria jv/re, but by analogy ; e. g. where equity has exclusive jurisdiction. Bell v. Beeman, 3 Murph. Rep. 273 ; Deloraine v. Browne, 3 Bro. C. C. 646, per Lord Thurlow. And it would seem, from the latter case, that it may sometimes be insisisted on at the hearing as matter of evidence, without being mentioned in the answer. But where the time comes in by way of presumption, as it often does, payment must be sworn to by the answer. Livingston v. Livingston, 4 John. Ch. Rep. 287. See the peculiar mode of pleadhig the statute to a specialty in Maryland. Carroll v. "Waring, 3 GiU k John. 491. Though formerly held that a plea of the statute by one defendant enures to the benefit of ail the others (Claaon v. Morris, 10 John. Rep. 524), yet the better opinion would seem to be the other way. MoOormick v. Gibson, 3 Gill k John. 12 ; where the strength of the former case is considered, and the case itself denied to be law. "Where it is interposed by answer, the defendant is bound to negative, particularly, all circum- stances alleged in the bill calculated to avoid the statute ; and if it come in by plea, this must be supported by such an answer. Kane v. Bloodgood, 7 John. Ch. Rep. 90, 129 to 136; S. C. on appeal, 8 Cowen's Rep. 360 ; Goodrich v. Pendleton, 3 John. Ch. Rep. 384, 391 ; Mitf. PI. (3d ed.) 218, 220, 223, 236, 237 ; Coop. Eq. PI. 227, 228 ; Gilb. For. Rom. 58 ; Van Heythuysen's Eq. Draftsman, 443 ; Price v. Price, 1 Vern. 185 ; BaiUe v. Sibbald, 15 Ves. 185 ; South Sea Com- pany V. "Wymondsell, 3 P. Wms. 143 ; "Walter v. Glanville, 3 Bro. P. C. 206 (Toml. ed.) ; Anon., 3 Atk. 70 ; Galway v. Earl of Barrymore, 1 Dick. 163 ; Hildyard v. Creasy, 3 Atk. 303 ; Jones V. Pengree, 6 Ves. 580 ; Bailey v. Adams, 6 Ves. 586 ; Pope v. Bush, 1 Anstr. 59 ; Edmunson V. Hartley, 1 Anstr. 97. It is well understood that at law the statute muat always be pleaded, with the few exceptions where it may come in under the general issue. Delay, though appearing on the face of the plain- tiff's pleadings, is never the subject of a demurrer ; and the better authority now is, that even a replication of fraud or concealment, by which the plaintiff was delayed in his remedy, will not be received to enlarge the time. Troup v. Smith, 20 John. Rep. 33, 47, 48 ; Hamilton v. Shep- perd, 2 Murph. Rep. 115 ; Callis v. "Waddy, 2 Munf. 511 ; Maddook v. Bond, 1 Ridgw>, Lapp k Sch. Ir. T. R. 339. But see Pirat Maaa. T. P. Corporation v. Field, 3 Mass. Rep. 201 ; Homer v. Fish, 1 Pick. 435 ; Jones v. Conoway, 4 Teates, 109 ; and Pyle v. Beckwith, 1 J. J. Marsh. 446, contra. And the same rule applies where the statute comes into a Court of Equity propria jure, Hamilton v. Shepperd, 3 Murph. Rep. 115, 118 ; Bell v. Beeman, 3 Murph. Rep. 273, 278. 43. The state of New York has recently adopted a limitation for all suits in equity as well as at law. "Where its jurisdiction is concurrent with the common-law courts, the legal lunitatiou is extended to all equity suits brought subsequent to the passing of the act, except in cases of fraud,, where the bill may be filed within six years after its discovery. In all other oases the limitation is to ten years after the cause of the bill accrued; subject to be enlarged in each case by the ex- istence of the same disabilities and accidents aa exist at law, viz : infancy, coverture, abaence beyond sea, death, &c. 2 R. S. 301, 302, art. 6. In their report of this statute, the revisers pro- fess in the main to follow the law of courts of equity as it has already been adopted by those courts. They refer to 20 John. Rep. 685 ; 2 Ball & Beat. 129 ; 2 Sch. & Lef. 636 ; 1 Bro. P. C. 455, and the oases collected in 20 John, Rep. 38. The ten years limitation, of course, embraces several cases not before limited at all, and others to which a diflferent period had been fixed iu analogy to the legal limitation. SEC. II.J And of PTesumptions. ' 703 ceptance, is produced from tlie hands of the acceptor subsequently to its becoming due, the presumption is, that the acceptor has paid it.(l) Of reputed ownership. "Where a person has been the absolute owner of property, and he con- tinues in possession of it till the time of his bankruptcy, he will be prima facie presumed to have had the reputed ownership of it, unless he has made the change of property notorious ; but if he has never been the ab- In order to determine the extent of the limitation, as whether it shall he six or twenty years on the one hand, or ten years on the other, this statute opens a wide field of inquiry on the question, in what oases the jurisdiction of chancery and law shall he deemed concurrent for the purposes of the statute limitation on that head, and when not, with a view to the limitation of such suits belonging exclusively to the equity side. And again, the cases must be resorted to, in order to determine what shall constitute such a fraud as shall enlarge the time in both oases. These questions being answered, another seems to be settled : The language of these statutes, mutatis mutandis, is the same as those which limit actions in a court of law. It follows, that the time of the complainant can be enlarged by no considerations, except those specifically enume- rated ; fi'aud undiscovered, infancy, coverture, insanity, duress, absence, &c. Troup v. Smith, 20 John. Eep. 33, i1 ; Calhs v. "Waddy, 2 Mun£ 511 ; Leonard v. Pitney, 5 "Wend. 30 ; Hamilton T. Shepperd, 2 Murph. Eep. 115, 118 ; Bell v. Beeman, 3 Murp. Rep. 213, 278. Neither promises, acknowledgments, nor the most solemn acts, can keep the subject matter of the biU alive. , It is a very strong statute, leaving it quite questionable whether aliquis potest renuncia/re juri pro se introchtcto, unless this be done by an act of record in the suit itself. See Maddock v. Bond, 1 Ridgw., L. & S. Ir. T. R. 332. At any rate, all the thousand- other acts, relations and contingen- cies by which equities have heretofore been kept alive, as may be seen by the cases we have above attempted to review, are rescinded at a blow. This is, indeed, cutting the gordian knot. What those equities may be worth which are thus placed " with the years beyond the flood," is no longer the inquiry. Lord Camden said, that "in, all these questions which turn on the limita- tion of time, the right is never taken into consideration : for the statute was made to bar right, and not give remedy in dubious cases. The rule, ui ait finis litiv/m, operates against oases of right rather than in cases of wrong." Ambl. 647. For the first time, with us, a quieting statute hag passed, extending over aU the regions of equitable jurisprudence. Heaven grant that tlie repose which it confers may not prove the calm of despotism. (1) Gibbon v. Featherstonhaugh, 1 Stark. R. 225 ; Pfiel v. Vanbatenberg, 2 Camp. 439. See Bembridge v. Osbom, 1 Stark. E. 374. As to the presumption of payment arising from the pro- duction of a check, see BosweU v. Smith, 6 C. & P. 60 ; Pearqe v. Davis, 1 Mo. & R. 365 ; Egg v. Bamett, 3 Esp. 196 ; Lloyd v. Sandiland, Gow, 16, explained by Alderson, B., in Mountford v. Harper, 16 M. & "W". 825, 827. That the payment of money does not, in general, raise the pre- sumption of a loan, see Welsh v. Seabone, 1 Stark. E. 474 ; Carey v. Gerrish, 4 Esp. 9 ; Holden V. Hartsink, 4 Esp. 46. As to a presumption of gift to a relative, see Hick v. Keats, 4 B. & 0. 71. See further on the presumption of payment. Cooper v. Turner, 2, Stark. R. 207 ; 4 Taunt 293. On the presumption of the satisfaction of judgments, warrants to confess judgment, decrees, recognizances, annuities, portions, legacies, liens for purchase money, quit rents, see Mathews on Presumptions, ch. 19 & 20 ; 'Winaume v. Gorges, 1 Camp. 217 ; Hulke v. Pickering, 2 B. & C. 555. On the subject of the payment of bonds, see the statute 3 & 4 "Wm. IV, c. 42. Before that statute, payment might have been presumed within twenty years, if circumstances con- curred to fortify the presumption arising from lapse of time, as a settlement of accounts. Colsel v. Budd, 1 Camp. 27 ; Oswold v. Leigh, 1 T. R. 270. The production by the assured of a policy with an adjustment, and the name of the defendant struck ofij does pot prove payment. Adams V. Sanders, M. & M. 373. 704 0/ Presumptive Evidence, [oh. x. solute owner, it will be necessary to establisli the fact of a reputed owner- ship, by other means than proof of possession.(l) Presumptions by the law of treason. It has sometimes been laid down, that a conspiracy to levy war against the king, when proved, amounts, in presumption of law, to a compassing of the king's death ; but, on the other hand, there are still ■ higher and^ better authorities, both ancient and modern, for considering, that a jury are not bound to make such a presumption, unless they are satisfied that the conspiracy was of such a nature as, in its consequences, to occasion probable danger to the king's life.(2) It would be impossible to enumerate within convenient limits, the va- rious presumptions which have received judicial sanction.(3) The greater (1) Lingard t. Messiter, 1 B. & C. 312 ; Storer v. Hunter, 3 Id. 374 (2) See the authorities ooUeoted in Phillipps' observations on Lord Russell's Case, in hia abridg- ment of the State Trials ; and Luder's Tracts on Treasons. The charge of Byre, 0. J., in Hardy's Case ; his summing up in Home Tooke's Case ; the summing up of Lord Ellenborough, C. J., in Watson's Case, are in favor of treating the presumption as one of pure law. (3) The following instances may be referred to by the reader. Presumption of mesne assign- ments, Earl d. Goodwin v. Baxter, 2 W. Bl. 1228; of recoveries, Groodtitle d. Bridges v. Chan- dos (Duke), 2 Burr. 1065 ; of enrollment of tithe award, Macdougal v. Purrier, 2 Dow. & CI. 135 ; of probate of will, Doe d. "Woodhouse v. Powell, 8 Q. B. 576 ; of receipt of notice of dishonor of bill, from promise to pay, Hicks v. Beaufort (Duke), 4 N. C. 229 ; Patterson v. Beoher, 6 B. Moo. 319 ; BrowneU v. Bonney, 1 Q. B. 39 ; Campbell v. "Webster, 2 C. B. 258 ; or from other circum- stances, "Wilkins v. Jadis, 1 Mo. & E. 41 ; Curlewis v. Oorfield, 1 Q. B. 814. Note 194. — It would, therefore, seem, that direct proof is of a higher degree than that which is merely circumstantial. Indeed, the exclusion of the latter, where it is obvious that the former ex- ists, and it is not shown to be beyond the reach of the party, is a very common occurrence, as wUl be seen hereafter, under the rule that the best evidence of which the fact appears to be susceptible, must be produced. ATiie, 614, text. The most striking illustration of the present rule iu the text, will be found in the case of "Williams v. The Bast India Company, stated ante in the text. The admission of secondary or circumstantial evidence by proof of a subscribing witness's hand- writing, where he cannot be produced, is another instance. Post, of the text, with the notes. So the entries of third persons since deceased, either against their interest or in the line of their duty. Post, in the text, with the notes. And see what Parke, J., said of such an entry, in Patteshall v. Turford, 3 Barn. & Adolph. 890. "Where direct evidence is attainable, circumstan- tial is of a secondary nature. 3 Stark. Ev. 515. Beside, the great excellence of indirect testi- mony is its freedom from suspicion ; and no greater discredit can be thrown upon it than when direct evidence is withheld. Id. And see Hazzard v. Smith, 1 J. J. Marsh. 66, 68. A person who rests his case on the argument that certain circumstances which he adduces afford a pre- sumption of the existence of a disputed fact, is not entitled to any attention whatever, if he cannot but be in a condition to give direct and positive evidence of the fact itself, supposing it to be true. 2 Ev. Poth. 340, No. 16, § 14. On the different heads, viz : of presumptive or circumstantial evidence in criminal cases, see ante, notes 174 to 180, inclusive, passim. It is not to be disguised that circumstantial, like all other proof, is sometimes fallible The case mentioned (2 Hal, P. C. 289), of the man condemned as the thief, though he had only re- ceived the horse from the real felon, who delivered him with a view to escape a pressing pursuit ; and thus threw the onus on an innocent bailee, and himself escaped, is sometimes referred to as inculcating caution in respect to this species of evidence. Rusa. on Cr, 1154, note e. There was, too, a tract entitled " The Theory of Presumptive Proof," appended to the first SEC. II.J Circumstantial Evidence. 705 American edition of Phillipps (1816), the body of wMcli oontaina some very sensible remarks. But it subjoins eleven startling oases, in which, apparently, the strongest circumstantial evidence, ■whereon, iu some of them, convictions followed, and capital punishments were inflicted, had finally turned out to be delusive ; the victims being in truth innocent. These cases were, for some time, rung through our criminal courts as seriously impugning the doctrine which sanctions such evidence. "Weak juries were sometimes alarmed by them ; and judges felt bound peremp- torily to interpose, in order to maintain the best settled principles in the law of evidence. In a case of highway robbery (Gen. Sess. of New York, Sept. 1817, before the late Eadcliff, J., then Mayor, and his associates), Gardiner, for the prisoners, proceeded to read and comment on these cases to the jury. The learned judge, in charging the jury, took occasion to explain the nature of their oath. It had been often said by counsel,) he observed, that jurors, in rendering a verdict, swear that the prisoner is guilty or not guilty. The jury swear to no such thmg : they declare, in rendering a verdict, the result of the conviction of their minds, from the evidence produced ; having previously sworn to give ■* true verdict according to the evidence. He then observed that the cases read by the counsel for the prisoner were extreme oases ; and such as do not exist, perhaps, in one case in a thousand. The plain practical rules of evidence, which had been estab- lished for ages, ought not to be shaken by any collection of cases in the works of tlieoretioal writens. Such cases may be inserted for the purpose of inducing the greater caution in juries ; but if employed for any other purpose, their application to the generality of cases depending on circumstantial evidence, is dangerous in the extreme. Perhaps the determination of one-half the cases tried in our courts, depends on the combination of circumstances ; and to apply extreme cases in such determination, would be sapping some of the moat salutary rules known to our law. All human testimony is faUible ; but jurors, in their decisions, must rely on such testimony. Canton & Keddmg's Case, 2 C. H. Eec. 149, 161, 152. The reporter very aptly illustrates the remark of the court; adding, in respect to the author of the book cited by Gardiner, " might he not, by ransacking the English annals, or the reports of adjudicated cases from the time of William the Conqueror, have selected eleven cases in which verdicts had been rendered on direct proof independent of circumstances ; but in which the witness or witnesses swearing to the facts, were guUty of the foulest perjury ? If so, might he not have written a theory of positive proof ; and have produced these cases to show its fallibility with as much propriety aa the essay now under consideration? 2 0. H. Record. 151. Indeed, there can be little doubt that a full catalogue of victims, even if confined to the per- jured witnesses of English legal history, would result in much more frequent cases of fallibility on the side oi direct evidence. The bloody perjuries of Dates, Bedloe and Dugdale have rendered them conspicuous in general history. Could the more .;Obsoure cases be collected, they would no doubt, be multipled to a much greater extent than the learned author of the theory of pre- sumptive proof could carry out the cases on his side of the question. Honest mistake and fallibility, in dhect and positive proof, also come in for their share of victims. But is a witness to be discredited because he ma/y be perjwed, or may be deceived ? Is a hypo% thesis to be rejected because it may be tmtrue ? The principle of veracity, the tenacity of memory acutenesa or accuracy of hearing and observation, the skiU of professional witnesses, the usual connection between circumstances and hypothesis, the sagacity of jurors, or wisdom of juridical conclusion, may each in turn be wanting ; yet they must be taken to be, aa they in truth are perfectly adequate to the general administration of justice. Oral or written language, though generally perspicuous, when employed on familiar or ordmary subjects, becomes inaccurate and obscure, in proportion as its objects are novel, or complex. Here is a defect by which the most luminous meaning may be, and often is, rendered not only dun and doubtful, but entirely per- verted. It is not denied that the language of oiroumatancea labors under a similar defect • but certainly not a greater ; and, I think, we have seen that the same argument which goes to sub- vert the force of this kind of evidence would be equally effective against all oral evidence • and against our judicial institutions, if not against the English language itself So far, we have taken for granted that the eleven oases reported in the above-mentioned appendix do, if historically true, present a series of rash or erroneous deductions even from well established circumstances, which were fatal to innocence. A synopsis of those cases will, how- ever, show that this is far from being the case. I. The first (Jenning's Case) and the tenth (anonymou^ were convictions founded on the foulest Vol. I. 45 706 Of Presumptive Evidence, [CH. X. fraud and perjury; the latter of a character so diaholical as to discredit its historical truth ; and the third (Harris' Case) on the conspiracy, frajud and direct perjwy of Morgan and the maid ser- vant, in the proof and simulation of circumstances. These three cases may be set down as con- yictions procured hj frand anA perjury. II. Of the remaining eight cases, the second (anonymous), the fifCh (Miles' Case), and eleventh (Stringer's Case), each present circumstances on which a common magistrate would hardly he authoiized to commit for trial. The second of these resulted in an acquittal ; in the fifth, the jury of neighbors who tried the man were so influenced by horrid rumors and alleged supernatural signs of guilt, that they were completely disqualified for seeing the utter inadequacy of the proof The report substantially admits- that the prisoner owed his death to the prejudice and superstition of his triors. The most material circumstance in the eleventh was made out by the professional error of a witness (a young surgeon), which was explained by better skill after the trial, and the man received a pardon. HI. The fourth (Crow's Case) was an honest mistake of personal identity. A great number of witnesses, the neighbors of Geddely, the real criminal, mistook the former for the latter. Such a mistake is not sohtary. Hoag's Case, 5 C. H. Eec. 124. IT. In the seventh (Bradford's Case), the inference was very little wide of the mark. He had, in truth, come into the room where the dead body lay, with intent to kill and rob the deceased ; but another had preceded him in the horrid act. It was a mere accident that the entire inference was incorrect ; and that the prisoner suffered for the moral, not the legal guilt of murder. T. The eighth (Shaw's Case) is an instance of the fallibility of direct testimony, the dying declarations of the deceased, the prisoner's daughter. These were, as usual, properly received as competent (except, perhaps, her answer to the last question, which was leading). She charged her father with the murder ; but was unable to explain that she meant by this, .his crossing her purpose of marriage, and leading her to commit suicide. This direct testimony being out of the case, the prisoner must have been acquitted. And so if her letter had not been accidentally misplaced. VI. In the ninth (Hawkins and Simpson's Case), the report admits that the guilt of the prisoners was palpable ; and they were properly convicted. But it insists that the judge (Mon- tague, B.) hastily inferred the falsehood of a circumstance set up in the proof of an alibi, upon the ground that ink taken from the same standish within the same minute, of time would exhibit the same color. The judge suggested that, because the color of the ink in the body of the receipt and that in the signature differed, the inference was fair that the paper was not drawn and signed from the same standish at the same time. In that instance, it happened not to hold true of the reporter's notes ; and hence it must be stricken from the catalogue of legitimate circumstances, although it were true of every other standish since the Norman invasion I Certainly no internal evidence is oftener relied on in books or in practice, as impeaching the verity of a document. So far we have fraud, perjury, conspiracy, a prejudiced jury, professional error and mistake of witnesses, the misapprehension of direct testimony and its accidental non-correction; and an alleged want of adequate sagacity in Baron Montague. If the compiler meant to admonish us that caution is necessary under all these heads, it is very weU. But if he meant to question either the force or safety of presumptive evidence as it is understood by our law, and acted upon in our dourts, his success is quite questionable. VII. The sixth case of the eleven (anonymous) is, however, certainly an instance where our courts would feel satisfied with a verdict of guilty, upon the presumptive evidence, although the prisoner was, in truth, innocent. By an accidental turn in the affair, inscrutable to human sagacity, the guilt belonged to another, while it was imputed, and all the circumstances pointed to the prisoner. The manner of his acquittal presented an equally striking anomaly. The case is altogether an extreme one, prodigiously interesting in all its features. It is briefly detailed in the appendix, and somewhat differently from other reports of what is evidently the same case. It is not without some degree of instruction ; and we therefore give the following account of it, as republished from a London paper, which reached this country several years ago : "The following singular case is at present the subject of dramatic representation at one of our minor theatres (the Ooburgh). The narrative is extremely interesting, as exemplifying that cir- cumstantial evidence, even when apparently the most conclusive, is not always to be relied upon SEC. II.] Circumstantial Evidence. 707 as infallible. It happened in the year 1872. The reader will find the account of it in the Gentle. man's Magazine for 1162. " In the reign of Queen Elizabeth, a person was arraigned before Sir James Dyer, Lord Chief Justice of the Court of Common Pleas, upon an indictment for the murder of a man, who dwelt in the same parish with the prisoner. The first witness against him deposed, that, on a certain day mentioned by the witness, in the morning, as he was going through a close, which he particularly described, at some distance from the path, he saw a person lying in a condition that denoted him to be either dead or drunk ; that he went to the party, and found him actually dead, two wounds appearing on his breast, and his shirt and clothes much stained with blood; that the. wounds ap- peared to the witness to have been given by the puncture of a fork, or some such instrument, and looking about, he discovered a fork lying near the corpse, which he toSk up, and observed it to be marked with the initial letters of the prisoner's name ; the witness, at the same time, produced the fork in court, which the prisoner owned to be his, and waived asking the witness any questions. " A second witness deposed, that, on the morning of the day on which the deceased was kUled, ' the witness had arisen early with an intention to go to a neighboring market town, which he named ; that as he was standing in the entry of his own dwelling-house, the street door being open, he saw the prisoner come by, dressed in a suit of clothes, the color and fashion of vJ-hich the witness described ; that he (the witness) was prevented from going to market, and that after- wards the first witness brought notice to the town, of the death and wounds of the deceased, and of the prisoner's fork being found near the corpse ; that upon this report, the prisoner waS apprehended, and carried before a justice of the peace, whom he named and pointed at, he being then present in the court ; that he (the witness) followed the prisoner to the justice's house, and attended hi's examination, during which he observed the exchange of raiment which the prisoner had made since the time when the witness had first seen him in the morning ; that at the time of such examination the prisoner was dressed in the same clothes which he had on at the time of the trial, aiid that on the witness charging him with having changed his clothes, he gave seve- ral shuffling answers, and would have denied it; that upon the witness having mentioned this circumstance of the change of dress, the justice granted a warrant to search the prisoner's house for the clothes described by the witness as having been put off since the morning ; that the wit- ness attended and assisted at the search, and that after nice inquiry for two hours and upwards, the very clothes which the witness had described were discovered concealed in a straw bed. He then produced the bloody clothes in court, which the prisoner owned to be his clothes; and to have been thrust into the straw bed with an intention to conceal them, on account of their being bloody. "The prisoner also waived asking the second witness any question. " A third witness deposed to his having heard the prisoner deliver certain menaces against the deceased, from whence the prosecutor intended to infer a proof of malice prepense. In answer to which, the prisoner proposed certain questions to the court, leading to a discovery of the occasion of the menacing expressions deposed to, and from the witness's answer to those questions, it appeared that the deceased had first menaced the prisoner. " The prisoner being odHed upon to make his defence, addressed the following narration to the court, as containing all he knew concerning the manner and circumstances of the death of the deceased, viz : ' That he rented a close in the same parish with the deceased, and that the de- ceased rented another close adjoining to it ; that the only way to his own close was through that of the deceased, and that on the day the murder in the indictment was said to be committed, he rose early in the morning, in order to go to work in his close, with his fork in his hand, and passing through the deceased's ground, he observed a man at some distance from the path, lying down as if dead or drunk ; that he thought himself bound to see what condition the person was in, and upon getting up to him, he found him at the last extremity, with two wounds in his ' breast, from which a great deal of blood had issued ; that in order to relieve him he raised him up, and with gl'eat difficulty set him in his lap ; that he told the deceased he was greatly con- cerned at his unhappy fate, and the more so as there seemed to be too much reason to apprehend that he had been murdered ; that he entreated the' deceased to discover, if possible ; the occasion of his misfortune, assuring him he would use his utmost endeavors to do justice to his sufferings ; that the deceased seemed to be sensible of what he said, and in the midst of his agonies attempted, 708 Of Presumptive Evidence, [CH. X, as he thought, to speak to him, but being seized with a rattling in his throat, after a hard struggle, he gav« a dreadful groan, and vomiting a great deal of blood, some of which fell on his (the prisoner's) clothes, he expired in his arms; that the shock he felt on account of the accident was not to be expressed, and the rather as it was well known that there had been a difference between the deceased and himself, on which account he might possibly be suspected of the murder ; that he therefore thought it advisable to leave the deceased in the condition he was, and to take no farther notice of the matter ; that, in the confusion he was in when he left the place, he took away the deceased's fork, and left his own in the room of it, by the side of the corpse ; that being obhged to go to his work, he thought it best to shift his clothes, and that they might not be seen, he confessed that he had hid them in the place where they were found ; that it was true he had denied before the justice that he had changed his clothes, being con- scious that this was an ugly circumstance that might be urged against him, and being unwilUng to be brought into trouble if he could help it ; and concluded his story with a solemn declaration that he had related nothing but the truth, without adding or diminishing one tittle, as he should .answer it to God Almighty.' Being then oaUed on to produce his witnesses, the prisoner answered with a steady, composed countenance, and resolution of voice, ' He had no witness Imt God and Ms own conscience.'' "The judge then proceeded to dehver his charge, in which he pathetically enlarged on the heinousness of the crime, and laid great stress on the force of the evidence, which, although cir- cumstantial only, he declared he thought to be irresistible, and httle inferior to the most positive proof; that the prisoner had indeed cooked up a very plausible story, but if such, or the like allegations, were to be admitted, in a case of this kind, no murderer would ever be brought to justice, such bloody deeds being generally perpetrated in the dark, and with the greatest secrecy ; that the present case was exempted, in his opinion, from all possibility of doubt, and that they ought not to hesitate one moment about finding the prisoner guUty; " The foreman begged of his Lordship, as this was a case of hfe and death, that the jury might be at liberty to withdraw, and upon this motion an officer was sworn to keep the jury. " The trial came on the first in the morning, and the judge having sat tUl nine at night, expect- ing the return of the jury, at last sent an officer to inquire if they were agreed in their verdict and to signify to them that his Lordship would wait no longer for them. Some of them returned for answer that eleven of their body had been of the same mind from the first, but that it was their misfortune to have a foreman that proved to be a singular instance of the most inveterate obstinacy, who having taken up a different opinion from them, was unalterably fixed in it. The messenger was no sooner returned, but the complaining members, alarmed at the thought of being kept under confinement aU the night, and despairing of bringing their dissenting brother over to their own way of thinking, agreed to accede to his opinion, and having acquainted him with their resolution, they sent an officer to detain his worship a few minutes, and by their fore- man brought in the prisoner not guUty. His Lordship could not help expressing the greatest surprise and indignation at this unexpected verdict ; and after giving the jury a severe admoni- tion, he refused to record their verdict, and sent them back again, with du'ections that they should be locked up all night without fire or caudle. The whole blame was publicly laid on the foreman by the rest of the members, and they spent the night in loading him with reflections, and bewailing their unhappy fate in being associated with so hardened a wretch; but he remained quite inflexible, constantly declaring he would suffer death rather than change his opinion. " As soon as his Lordship came into court, the next morning, he sent again to the jury, on which all the eleven members joined in requesting their foreman to go into the court, assuring him they would adhere to their former verdict, wliatever was the consequence, and, on being re- proached with their former mconstancy, they promised never to desert or recriminate upon their foreman any more. Upon these assurances, they proceeded into court, and again brought in the prisoner not guilty. The judge, unable to conceal his rage at a verdict, which appeared to him in the most iniquitous light, reproached them with the severest censures, and dismissed them with tills cutting reflection, ilicU the Hood of the deceased lay at dieir door. "The prisoner, on his part, fell on his knees, and with uplifted eyes and hands, thanked Grod for his deliverance, and addressing himself to the judge, cried out, ' Tm see, my Lord, that God and a good conscience are the best of witnesses.' SEC. II.] Circumstantial Evidence. 709 " These circumstances made a deep impression on the mind of the judge, and, as soon as he was retired from the court, he entered into a discourse with the high sheriff upon what had passed, and particularly examined him as to his knowledge of this leader of the jury. The answer this gentleman gave his Lordship was, that he had been acquainted with him many years ; that he had an estate of his own of about £50 per annum, and that he rented a very considerable farm besides ; that he never knew him charged with an ill action, and that he was universally esteemed in his neighborhood. " For further information his Lordship likewise sent for the minister of the parish, who gave the same favorable account of his parishioner, with this addition, that he was a constant church- man and a devout communicant. " These accounts rather increased his Lordship's perplexity, from which he could think of no expedient to deliver himself, but by having a conference in private with the only person who could give him satisfaction. This he desired the sheriff to procure, who readily offered his ser- vices, and without delay brought about the desired interview. "Upon the juryman's being introduced to the judge, his Lordship and he retired into a closet, where his Lordship opened his reasons for desiring that visit, making no scruple of aoknowledg- %g the uneasiness he was under, and conjuring his visitor frankly to discover his reasons for ac- quitting the prisoner. The juryman returned for an answer, that he had sufficient reasons to justify his conduct, and that he was neither afraid nor ashamed to reveal them, but that as he had hitherto locked them up in his own breast, and was under no compulsion to disclose them, he expected his Lordship would engage upon his honor, to keep what he was about to unfold as secret as he himself had done ; which his Lordship having promised to do, the juryman then proceeded to give his Lordship the following account : That the deceased being titheman of the parish where he (the juryman) lived, he had, the morning of his decease, been in his (the jury, man's) grounds amongst his com, and had done him great injustice, by taking more than his due, and acting otherwise in a moat arbitrary manner ; that when he complained of this treatment, he had not only been abused with scurrilous language, but that the deceased had likewise struck at him several times with his fork, and had actually wounded him in two places, the scars of which wounds he then showed to his Lordship ; that the deceased seeming bent on mischief, and he (the juryman) having no weapon to defend himself, had no other way to preserve his own life but by closing with the deceased, and wrenching the fork out of his hands, which having effected, the deceased attempted to recover the fork, and in the acuffie received the two wounds, which had occasioned his death ; that he was inexpressibly concerned at the accident, and especially when the prisoner was taken up on the suspicion of the murder ; that the former assizes being but just over, he was unwilUng to surrender himself, and to confess the matter, because his farm and affairs would have been ruined by his lying in jail eo long ; that he was sure to have been acquitted on his trial, for that he had consulted the ablest lawyers upon the case, who had all agreed, that as the deceased had been the aggressor, he would only have been guilty of man- slaughter at the most ; that it was true he had suffered greatly in his own mind on the prisoner's account, but being well assured that imprisonment would be of less ill consequence to the prisoner than to himself, he had suffered the law to take its course ; that in order to render the prisoner's confinement as easy to him as possible, he had given him every kind of assistance, and had wholly supported his family ever since ; that in order to get him clear of the charge laid against him, he could think of no other expedient than that of procuring himself to be summoned on the jury, and sit at the head of them, which with great labor and expense he had accom- plished, having all along determined in his o\vn breast rather to die himself than suffer any harm to be done to the prisoner. "His Lordship expressed great satisfaction at this account, and after thanking him for it, and making this further stipulation, that in case his Lordship should survive him, he might then be at liberty to relate this story, that it might be delivered down to posterity, the conference broke up. " This juryman lived fifteen years afterwards. Chief Justice Dyer inquired after him every year, and happening to survive him, delivered the above relation." "We had occasion, anie, note 179, to cite the strong remarks of Livingston, J., in United States V. Jacobson, made (A. D. 1817) shortly after the "Theory of Presumptive Proof" had furnished ovjr criminals, as was believed, with a ready magaznie of defensive armor. Similar resorts were. 710 Of Presumptive Evidence, [CH. x. it seems, continued before the able successor of that lamented jurist. Such was the course in Jones' Case. United States C. C, April, 1824, 2 Wheel. Or. Cas. 451. " A number of cases'' (says Thompson, J., in his charge to the jury), "baye been cited and read, to show you the dan- gerous tendency of this kind of proof It is possible an innocent person may have suffered ; but such cases (if any such there were) could be no objection to this kind of evidence. If jurors were to disregard it, there would be an end to the administration of law, and to government. It is the duty of the jury to weigh all the evidence for and againist the prisoner ; and fair and legal inferences are to be made from facts and circumstances. They are often more satisfactory and conclusive than the testiinony of witnesses. Id. 461, 462. Again, per "liVashingtoBj J. (in 1896), " circumstantial evidence is sufficient, and is often more persuasive Hhasa. the positive evidence of a witness, who may be mistaken ; whereas a concatenation, and a fitness of many circumstances, made out by different witnesses, can seldom be mistaken, or fail to elicit the truth." United States V. Johns, 1 "Wash. G. C. Eep. 3'72. Per Riker, Recorder: "It is to be received with cau- tion ; nevertheless, circumstances are often so strong as to amount to satisfactory proof." People V. Smith, N. T. Gen. Sess. (Jan. term, 1823), 1 Wheel. Or. Cas. 131, 132. And per Park, J. (hi Rex V. Thurtell, for the murder of Weaie, Hartford assizes, Jan. 1824, Id. 462, note) : " The eye of omniscience can alone see the truth in all cases ; circumstantial evidence is there out of the question ; but clothed, as we are, with the infirmities of human nature, how are we to get at the truth without a concatenation of circumstances ? Though in human judicature, imperfect as it must necessarily be, it sometimes happens, perhaps in the course of one hundred years, that in a few solitary instances, owing to the minute and curious circumstances which sometimes envelope human transactions, error has been committed from » reliance on circumstantial evidenee ; yet this species of evidence, in the opinion of all those who are most conversant with the adminis- tration of justice, and most skilled in judicial proceedings, is much naore satisfactory than the testimony of a single individual who swears that he has seen a fact committed." The magnitude of the danger arising from the fraudulent simulation of circumstances, is greatly lessened by almost inevitable detection. To show this, Mr. Starkie has abridged three remark- able cases. One was where the deceased being sti'angled, his murderers, to make the case look lite a suicide, ran his own sword through his body, and threw him into a ditch, laying his gloves, &c., on the bank ; but there was no blood about the place, and the body was discolored and bruised. On drawing out the sword, no blood followed, and the neck was so flexible that the chin could be turned from one shoulder to the other. Another case, was where the murderers cut the throat of a female in bed ; and it was distinguished from suicide, by the bloody mark of a left hand on the hft hand of the deceased. Another, was where the deceased's pistol was found lying near him ; but on examining the ball by which he had been killed, it was found to be too large for the calibre of his pistol. 3 Stark. Ev. 504, 505. In People v. How, for the muider of Church (before the 0. and T. Alleg. Co. Peb. 1824, Roches- ter, Circuit Judge, presiding, 1 Wheel. Cr. Cas. 412), it appeared by direct proof, that between 1 and 2 A. M. (30th December, 1823), he was called out of bed at his house by a person pretend- ing to have a letter for him ; and as he opened the door was shot dead on the spot. The circum- stances from which the prosecution sought to infer that the prisoner was the murderer (the in- mates of Church's house not being able to identify any one), were : 1. That the prisoner had not long before frequently complained that Church had defrauded him ; 2. Had used threats against Church, to a number of people ; and on one occasion had threatened to take his life ; 3. Had endeavored to persuade a person to assist him in putting Church out of the way ; 4. Had threat- ened to shoot him ; 5. Was seen lurking a few evenings before the murder with his rifle, and endeavoring lo conceal it ; 6. Left the village of Angelica the same evening, and in time to have gone to Church's and have committed the murder ; 1. Had something under his coat exhibiting the appearance of a rifle; 8. His suspicious conduct on the evening of the murder; 9. In the morning, Ihe horse upon which he rode on the evening of the murder was found wet with sweat ; 10. His false statements about the horse being sick ; 11. The ball with which Church was shot matched one found in the prisoner's rifle box ; 12. The lint and horse hair found adhering to the rifle ; 13. The patch and tow wadding found in the house of the prisoner near where he lay, &c. On these circumstances, after an able defence, the prisoner was convicted and sentenced. He afterwards confessed his guilt, and was executed. In these cases of homicide, the precaution of Lord Hale seems to be enough for laying the SEC. II.] Circumstantial Evidence. 711 fonndation of circumstantial evidence : "I would never convict any person of murder or man- slaughter uniesB the fact was proved to be done, or at least the bpdy found dead." 2 Hal. P. C. 290. A departure from this important suggestion, which is now universally acted upon, was a capital error in Miles' Case, cited supra, from Phil. Ap. The body being afterwards found, it plainly appeared that the death was accidental, The judge should have stopped the prosecution. In the two illustrative cases stated by Hale (P. C. lit swpra), one of the persons supposed to havfe been murdered, was sent on a long sea voyage, and the other had run away. The late remark- able case of Stephen and Jesse Boom, in Vermont, was in truth of the latter character, though the prisoners actually confessed their imputed guUt. Bennington S. C, Sept. term, 1819, Pamph. Pay & Burt. The rule that the body must be found dead, is adhered to with great strictness 'in the English courts. Where the father and mother of a bastard child threw it iato the dock, and the body was never afterwards found, an acquittal was directed, because the flow of the tide might have carried out the iody of the living infant. Case cited by Garrow. arg. in Hindmarsh's Case, 2 Leach, 571 ; S. C, Russ. on Cr. 682, note. Though it must be confessed that Hindmarsh's Case itself looks much like a departure from a strictness absolutely safe. There a sailor having been seen to throw his captain overboard, it was put to the jury, on the circumstances of a previous scufHe between them, a billet of wood on the deck, and stains of blood on the deck and the prisoner's clothes, whether he had not killed the deceased before he threw him overboard ; and so the dead body might be said to have been found [seen) by the witness, within the rule. 2 Leach, 571 ; S. C, Euss. on Cr. 682. See farther, on the subject of presumptive evidence in criminal cases generally, 1 Chit. Cr. Lawi 563 ; 4 Bl. Comm. 358, 359. It is not the nature of our legal reports to aid us much in practically collecting the amount of credibility, either as it is to be sought for in a single witness, in numbers concurring to establish the same fact, or in the relative weight of conflicting witnesses. In general, the utmost those reports can do, is to determine when the question of credibility fairly arises, suggest abstract rules for its determination, and leave their application to the jury, under the direction of the judges at the circuit. In the course of the cases, we may gather that the integrity, ability, num- ber and consistency of witnesses, the conformity of then: relations with experience, or with col- lateral circumstances, and the contrary of all these, &c., may in turn be resorted to as the criteria of credibility. Tet this is mainly for the purpose of the negative conclusion : "To determine the force, or even existence of these criteria, belongs not to the judges sitting over their paper case." Such grounds of decision are too metaphysical to admit of being accurately bodied forth in history, so as to exhibit their exact bearing upon the question ; much more so the ingredients of which they may be formed, and the steps by which the supposed grounds may be reached or avoided; and still more so the means, the modus operamdi by which these latter may have been elicited. The difficulties oftentimes inherent in the nature of the subject, can be obviated in no other way than by confining the examination to the view, the hearing, the manipulations, the tact of coun- sel, judge and jury, and leaving the latter to pronounce the irrevocable result. Not that considerable certainty and system has not been introduced by the reports into this department of the law ; and probably enough for all the ordinary purposes of investigation. It is therefore the business of the lawyer to consider the adjudged oases as far as they go ; and beyond this he can still derive great aid from learned and experienced writers among the pro- fession, some of whom have furnished much valuable instruction, by giving the result of thefr own observation. We shall have occasion, under a future head, to speak of matters admissible in evidence as affecting the credit of witnesses ; and upon which the jury may act as competent. And we shall here content ourselves with a few cases, showing where the weight and effect of oral testi- mony is settled by the law, where it must be left open for the consideration of the jury ; and then proceed to some suggestions for determining the force and effect of evidence touching credibility, after it shall have reached them. 1. Where there is no difficulty in saying that a witness is unimpeaohed, the facts sworn to by him being uncontradicted, either directly or indirectly, by any other witness, and there is no intrinsic improbability in his relation, a jury cannot disregard his testimony on the ground, arbi- trarily assumed, that they are satisfied, from his manner, he is biased in favor of the party calling 712 Of Presumptive Evidence, [CH. X. him. Newton v. Pope, 1 Cowen's Rep. 109. Were this otherwise, a)l certainty in the result, from oral testimony, must be given up. One credible witness is sufficient even to convict of a crime ; and a useless repetition of witnesses is discountenanced by the law. The judge might, by the civil law, in his discretion, stop the multiplication of witnesses to the same matter. "Wood's Civ. Law, SIT, cites D. 22, 5, 1, 2 ; 2 Dom. b. 3, tit. 6, § 3, art. 14 And this is not an iinusual exercise of discretion in our own courts. See Beekman v. Bemus, t Cowen's Rep. 29. The judge is constantly in the habit of directing a verdict of the jury, which is taken, and en- tered by the clerk as a matter of course ; imless the jury object. Saville v. Lord Famam, 2 Mann. & Eyl. 216. And see Nichols v. Goldsmith, V Wend. 160. ind where a cause is thus stopped, and the party in consequence forbears to go on with his evidence, and the jury find against the judge's direction, a new trial wiU be granted, even though the direction was contrary to the weight of evidence. Dunham v. Baxter, 4 Mass. Rep. 79. Though this was once held otherwise, where the counsel stopped on the mere intimation of the judge. Beekman v. Bemus, swpra. Quere. Again ; per Gaselee, J. : "I was requested to nonsuit the plaintiff. I could not do so upon the plaintiff 's case, though, in similar causes, I have occasionally done so after hearing the defendant's case ; but when there is any doubt as to the facts, they must be found by the jury.'' Davis v. Russell, 5 Bing. 354. And per Marcy, J. ; " Where the evidence in favor of the plaintiff is so slight, and that which supports the defence so strong, that had the jury found for the plaintiff the court would have felt itself called on to set aside their verdict, it will not send the cause back to the jury, because the judge ordered a nonsuit. Demyer v. Souzer, 6 Wend. 436, 438 ; Ward v. Vanduzer, 2 Hall's Rep. N. T. S. C. 162, S. P. On the other hand, ff the fact depend entirely on the testimony of an uncorroborated witness, whose credibility is plainly impeached, the jury are equally bound to disregard his testimony. Where the plaintiff's sole uncorroborated witness (or, in this case, it seems even if he be slightly corroborated) has plainly been guilty of perjury (apparent now on his cross-examination) upon the present or a former trial of the same matter, his testimony must be wholly rejected. Dunlap V. Patterson, 5 Cowen's Rep. 243, 246. So, if his testimony be corruptly false in any particular, the whole must be rejected. State v. Jim, 1 Dev. 608. And it has been so holden in several instances, where the moral credibility of the witness was plainly Impeached ; for the citizen has a right to demand that no issue should be decided against him without the testimony of at least one credible witness. Per Daggett, J , in Newell v. Wright, 8 Conn. Rep. 323. Thus where, by the witness's own confession, he was engaged with a gang of counterfeiters and in other criminal practices, and his general character was infamous ; held, that a verdict founded on his testimony could not stand. Allen v. Toung, 6 Monroe, 136. So if it appear he has been convicted of felony, by the record of his own admission. Per Golden, Mayor, in Oit's Case, 5 Cit. H. Reo. 181 ; per Radchff, Mayor, in Brown and Ray's Cases, 2 Id. 38. And so, though he may have been pardoned (and thus rendered competent), he is not credible unless corroborated by others. Per Thompson, TJ. S. Judge, Circuit Court, April, 1824, in United States V. Jones, 2 Wheel. Cr. Cas. 451. Yet, though he were concerned in the very felony of which he testifies, if he be corroborated, the jury may believe him. Per Radclifif, Mayor, in Ferguson's Case, 1 C. H. Reo. 65; per Riker, Recorder, in M'Niff's Case, Id. 8, 10. Again; where the maker of a note, which was indorsed for his accommodation, being released, swore that the note was indorsed (and a receipt to that effect given by the indorsee) as collateral secu- rity, but in the derangement of his affairs, he had lost the receipt ; Daggett, J., doubted here whether the fact could be taken as proved by a credible witness. But when, in addition, it ap- peared that he had repeatedly contradicted his now statement, in letters written by him and in conversation, and his character was besides slightly impeached, the court granted a new trial, although the verdict was in favor of the witness's credibility. NeweU v. Wright, 8 Conn. Rep. 319, 324. And, in another case, per Story, J. (on a question whether goods were legally cap- tured as prize or piratically taken by citizens of the United States), " If the cause stood solely upon the testimony of the witnesses who have been examined on behalf of the libelants" (those who claimed that the goods had been illegally taken), "we should have great hesitation in admitting the conclusions which have been drawn from it. The witnesses indeed speak di- rectly and uniformly, either to the point of illegal equipment or illegal augmentation of force within our ports. But their testimony is much shaken by the manifest contradictions whieli it involves, and by declarations of facts, the falsity of which was entii'ely within their knowledge, SEC. 11.] Circumstantial Evidence. 713 and haa been completely established in proof. It has been said that if witnesses concur in proof of a material fact, they ought to be believed in respect to that fact, -whatever may be the other contradictions in their testimony. That position may be true under circumstances : but it is a doctrine which can be received only under many qualifications, and with great caution. If the circumstances respecting which the testimony is discordant be immaterial and of such a nature that mistakes may easily exist, and be accounted for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the b.elief that the discrepancies arise from the infirmity of the human mind, rather than from deliberate error. But where the party speaks to a fact in respect to which he cannot be presumed hable to mistake, as in rela- tion to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, if the fact turn out otherwise, it is extremely difScult to exempt him from the charge of deliberate falsehood ; and courts of justice, under such circumstances, are bound, upon principles of law, and morality and justice, to apply the maxim, /osfcMS «» imo, falsus in orrmihis." The Santissima Trinidad, 1 "Wheat. 283, 338, 339. And so, though the discrepancy arise from any innocent cause, other than an infirmity of the mind — as the difference of observation, the nature of negative and positive testimony — the declarations of witnesses should be reconciled, if possible ; and if the jury find against its obvious weight when tested by these principles, the verdict will be set aside. Thus, where three wit- nesses testified explicitly to a set of words spoken in a ball room, where there was a noise from dancing and the violin, and a controversy, followed by confusion about the same time, though eleven witnesses who were in the room testified that they did not hear any such words, and that, in their opinion, they should have heard them, if uttered — yet, the jury finding against the speaking, a new trial was granted. Johnson v. Scribner, 6 Conn. Rep. 185. The court held the affirmative testimony decisively entitled to the greater weight ; and that the testimony of the eleven was reooncUable upon the ground of wanting opportunity or attention. Id. The testimony of witnesses apparently inconsistent is always to be so construed as, if possible, to exempt them from the imputation of perjury. Affirmative testimony is, from its naturei generally of greater weight, and better entitled to weight than negative ; and the want of means or opportunity in the witness of knowing the matters in controversy, his actual inattention, the absence of circumstances likely to excite his attention, or the existence of circumstances likely to divert it, are considerations which greatly diminish the effect of negative testimony. Johnson v. Scribner, 6 Conn. Rep. 185. And see Woodcock v. Bennet, 1 Cowen, 111. Tet negative may equal positive testimony, and put us to consider the credibility of witnesses on other grounds ; as if two listen with equal attention, and yet contradict each other as to the fact of the words being spoken. Id. 188, 189, per Hosmer, C. J. So you may prove that a man was not at a particular place on a certain day, by showing that be was at another, so great a distance as to render it impos.sible to be at both. Drauguet v. Prudhomme, 3 MUler's Lou. Rep. 14. So, where S. swore positively that an account was presented by him to L., who swore that he did not recoUect or idieve that it was, yet credit was given to S. The latter also swore that the defendant made a promise, on such a day, within the state. It being shown he was out of the state on that day, yet the testimony of S. was maintained as being a mere mistake of the timei which may well be ; and the promise was also proved by another. Flood v. Thomas, 5 Mart' Lou. Rep. (N. S.) 560. A mistake in memory or judgment in one part does not discredit other parts of a witness's relation, farther than it may go to his general want of adequate power of con- ception or memory. Per Henderson, J., in State v. Jim, 1 Dev. 510. So a wide distinction should be made between vritnesses who have an opportunity of knowing a fact (as that a writing has not been altered) and those who express a mere opinion from its appearance. The testimony of one of the former is worth a dozen of the latter. Per Sutherland, J., in Malin v. Malin, 1 "Wend. 623, 659. And the opinion or belief of a witness is somethnes to be entirely rejected, as founded on insufficient premises. Thus, where a witness said one tract of land bounded upon another, but grounded himself on a survey, the particulars of which he did not pretend to give, this shall be taken as mere general or vague belief or opinion. Jackson ex dem. The People v. "Wendell, 5 "Wend. 142. In a late case, where fifteen witnesses swore that a revolutionary soldier was alive and disbanded at the close of the war, and but one that he fell in battle during the war, the testimony of the latter being confirmed by various military documents, the balloting-book omitting hia name, it being entered among the dead, where it was also men- 714 Of Presumptive Evidence, [CH. X. tipned that letters patent were delivered to his administrator, the same fact of his death appearing on muster rolls, pay roUs, &o., the jury found according to the testimony of the single witness thus Qonfirmed ; and the Supreme Court expressed their satisfaction with the verdict. Jackson ex dem- Fowler V. Loomis, 12 Wend. 27. In estimates of the expense of raising a number of young slaves in Louisiana, a majority of the witnesses placed it at thirty dollars per annum for each ; and one at fifteen dollars, which the court adopted as probably the fairest estimate under the cir- cumstances. They remark that " numeration is certainly the easiest mode by which judges can arrive at conclusions on matters of fact supported alone by the testimony of witnesses ; but the law of evidence requires that their testimony should be weighed by probabilities, and its truth be rather ascertained in this manner than by couniing numbers;" and the court governed them- selves much by the known cheapness of the food and clothing in the climate of that state. Kemp y. Wamack, 2 Miller's Lou. Eep. 2T2. •-► 2- Tet there is often no certain standard by which the credit of conflicting witnesses can be ascertained. Different courts and juries would entertam different opinions, and each must judge for themselves. The People v. Superior Court of the City of New York, 5 "Wend. 126. In such a ease, generally, the whole is referable to the jury, who determine the weight due to each. Doe ex dem. Jones v. Fulgham, 2 Murph. 364, 367, 368. And this, even though the discrepancy be between the plaintiff's own witnesses. Thus, upon a question of variance, on trying an indict- ment for forging a note not produced, one of the witnesses for the prosecution swore that it was subscribed Benry (as charged), and another, H. (variant); .held, it should be put to the jury, who found the former witness porreot. Per Ewing, Oh. J. . " An indictment does not fall because one witness differs from another in points more or less material, or even in some directly contradicts him." State v. Potts, 4 Halst. 26, 31. ., A fortiori, where the discrepancy is only partial. Fon where the plaintiff called a witness who proved two several facts, one of which was for the plaintiff—but the other would have defeated him — he was allowed to call other witnesses to dis- prove the latter fact ; and yet have the credit of his first witness go to the jury on the fact which he wished to maintain by him. Bradley v. Ricardo, 8 Bing. 57. So where the sole witness to the defendant's handwriting prevaricated, and swore negatively and affirmatively as to hjs knowledge, Beauohamp v. Cash, Dowl. & Ryl. K P. Cas. 3. And go, in general, jurors are the unfettered, ilhmitable and final judges, whenever a question of credibility fairly arises in respect to one or more witnesses, whether the latter be concurring or conflicting. Heister v. Lynch, 1 Teates, 108 ; Fehl v. Goods, 2 Binn. 495 ; WincheU v. Latham, 6 Cowen's Eep. 682 ; Ackley v. Kellogg, 8 Cowen's Rep. 223 ; Sprague v. Mitchell, 2 Chit, Eep. 271 ; Fowler v. The JEtna Fire Ins. Comp. of New Tork, 7 "Wend. 270 ; Bucklin v. Thompson, 1 J. J. Marsh. 223, 227 ; Jackson ex dem. Fowler v. Loomis, 12 Wend. 27. Where the matter of credibility is thus left open for the consideration of the jury, no certain rule can be laid down for the conduct of their understanding. It is well settled that they cannot act on their own private knowledge of any fact ; for then it could not be known whether the verdict be for or against the evidence. 3 Stark. Ev. 449 ; 3 Bl. Comm. 375. The contrary would put an end to the granting of new trials ; and the very fact that a man be prepossessed, is good cause of challenge. If he know anything material, he ought to acquaint the court of this; and be sworn as a witness. Said in Smith ex dem. Dormer v. Parkhurst, Andr. 315, 321. He is to examine and appreciate the credibility of witnesses, according to his best knowledge and obser- vation in the light of experience and the laws of human action. In this he many times has to do with various mental faculties, especially memory and attention ; and various foibles, frailties and vices as contrasted with circumspection, candor and moral worth. Several writers have furnished us with valuable illustrations upon these heads, which cannot be too much studied. The powers of attention and memory, the two cardinal faculties of a witness's mind, are illustra- ted by gur author in a quotation from the bishop of Landaff, applicable to certain slight discrep- ancies among the several evangelical writers, by which the credit of their histories is rather fortified than impaired ; while Mr. Starkie (3 Stark, Ev. 468) has favored us with a like illustra- tion from Paley'a Evidences of Christianity. On the other hand, while, as wo shall see hereafter, Mr. Evans gives full force to the general argument, he cautious us against its too common and indiscriminate application. To excite due caution against implicit reliance on tlie powers of memory, when exerted upon certain subjects, Mr. Starkie (Id. 462, note) tells us of a learned judge, who rose &esh from the evidence, and in summing up, recited a witness's testimony SEC. II.] Circumstantial Evidence. 715 against a prisoner, on a charge of forgery, as imputing to him the words "lam the drawer, the acceptor and the indorser of the bills;" whereas the true words were, " I Tmow the drawer," &,o. The error was corrected ; but the learned author remarks, " had the witness made the same mistake, the consequences might have been fatal." Reading the above note suggested an instance to the editor, which may not be without its use. One Caldwell being on his trial for perjury, in having denied the existence of a slightly material circumstance against one Baker, who was oh his trial for murder, stood already contra- dicted by several witnesses, who swore to the circumstance, and to Caldwell's knowledge of it. The circumstance having transpired some fourteen or fifteen years before, gave room to suppose that he might have forgotten it. Had the jury believed this, as they most likely would have done, his acquittal was certain ; and this the editor (who presided at the trial) thought must be the result. But Caldwell had recently been examined on a charge of participating in the murder, before three magistrates, and one of these, Mr. James Newton, deposed that, on that occasion, Caldwell had admitted his recollection of the circumstance. After the cause had been summed up by counsel, and just as the editor was rising to charge the jury, under the strong impression that such evidence would lead to an inference of corrupt suppression by Caldwell, another of tb« examining magistrates, Mr. Joseph A. Sweet, gratuitously came to the stand,: and testified that Caldwell had denied his recollection before the magistrates in the same terms as at the trial. The third, Mr. Anson Thompson, being called, agreed in recollection witli Mr. Sweet. The prisoner, as the editor was afterwards informed, had before this given himself up as the hopeless victim of misrecoUection. But he was acquitted. Saratoga Oyer and Terminer, Nov. 1831> Cowen, C. Judge, presiding. The anxiety of legal writers to admoniA the judicial inquirer, of the occasional fraUty or per- version of memory, will be found most laudable, if we advert to the immense tracts of investiga- tion where oral testimony must be employed as the instrument ; and that, too, in examining those very subjects where it is most hable to err ; the least open to correction when mistaken, or detection when false. * Verbal contracts, admissions, declarations, with their endless diversity of application ; oral slander and perjury, which occupy so much time in our courts of justice, depend almost entirely upon the capacity of witnesses to remember words and phrases according to their just import. Upon these heads, however, and every other subject of inquiry conducted by the lights of oral testimony, we ought not to suppress those unperverted principles implanted in our nature to regulate the degree of reliance upon this species of evidence. Otherwise, judicial sagacity would degenerate into distrust and incredulity. Confidence should generally be extended to human testimony. Rejection and qualification are exceptions. "The wise and beneficent Author of nature, who intended that we should be social creatures, and that we should receive the greatest and most important part of our knowledge, by the information of others, hath, for this purpose, 'mplanted in our natures two principles that tally with each other. The first of these principles is a propensity to speak truth, and to use the signs of language so as to convey our real sentir ments. This principle has a powerful operation even in the greatest liars ; for where they lie once, they speak truth a hundred times. Truth is always uppermost, and is the natural issue of the mind. It requires no art or training, no inducement or temptation ; but only that we yield to natural impulse. Lying, on the contrary, is doing violence to our nature ; and is never practiced, even by the worst men, without some temptation. Speaking truth is like using our natural food, which we would do from appetite, although it answered no end ; but lying is like taking physio, which is nauseous to the taste, and which no man takes but for some end which he cannot otherwise attain. There may, indeed, be temptations to falsehood, which would be too strong for the natural principles of veracity unaided by the principles of honor and virtue ; but where there is no such temptation, we speak truth by instinct. By this instinct, a real con- nection is formed between our words and our thoughts ; and thereby the former become fit to be signs of the latter, which they could not otherwise be. And although this connection is broken in every instance of lying and equivocation, yet these instances being comparatively few, the authority of human testimony is only weakened by them ; but not destroyed. Another original principle implanted in us by the Supreme Being, is a disposition to confide in the veracity of others ; and to believe what they tell us. This is the counterpart to the former ■ and as that may be called the principle of veracity, we shall, for the want of a more proper name 716 Of Presumptive Evidence, [CH. x. call this the 'priimpU of credvMiy. It is evident that, in matter of testimony, the balance of human judgment is by nature inclined to the side of behef ; and turns to that side of itself where there is nothing put into the opposite scale. If it were not so, no proposition that is uttered in discourse would be believed until it was examined and tried by reason ; and most men would be unable to find reasons for believing the thousandth part of what is told them. Such distrust and incredulity would deprive us of the greatest benefits of society, and place us in a worse condition than that of savages. And, as in many instances, reason, in her greatest maturity, borrows aid from testimony ; so in others, she mutually gives aid to it, and strengthens its authority. For as we find good reason to reject testimony in some cases, so in others we find good reason to rely upon it with perfect security even in our most important concerns. The character, ihe number, and the disinterestedness of witnesses, the impossibility of collusion, and the incredibility of their concurring in their testimony without cdllusion, may give an irresistible strength to testimony, compared to which its native and intrinsic authority is veiy inconsiderable." Dr. Reid's Inquiry into the Human Mind, § 24. " All regard to testimony supposes the general proposition, that witnesses, not having any motives for asserting what is false or suppressing what is true, having had an adequate opportu-' nity of observing the subject to which they depose, having actually observed it with adequate attention, and having a distinct and perfect memory with respect to it, relate what they have seen or heard, with accuracy and fidelity, and the veracity of testimony, given by persons fuUy answering this description, is received and acted upon as a suflScient test of moral and judicial certainty. If a person, wholly indifferent to the event of a cause, should depose that within the preceding hour, he had seen one of the parties with whom he was perfectly well acquainted, ex- ecute a release, the fact of such execution would be admitted as a certain truth. " But in judicial inquu-ies, recourse must often necessarily be had' to testimony, not completely answering the description which has been given, or with respect to which the application of that description may not be fully ascertained ; and the scale of testimony descends from that high as- surance, which is for all moral purposes equivalent to certainty, through every gradation of in- ferior testimony, to that which leaves the judgment completely in suspense, and from thence, through all the degrees between the slightest preponderance on the side of incredulity, to the ex- treme of self-convicted falsehood. " If a perfect and absolute assurance that a witness completely answered the above descrip- tion, were in every case to be regarded as an essential preliminary to the credence of his evi- dence, the incredulity would, in numerous instances, be in opposition to the actual truth of the thing related. Such an incredulity would be the effect and sign of imprudence, in the ordinary intercourse of life ; in the administration of law, it would frequently occasion a failure of right, and consequently merit the appellation of injustice. " Testimony therefore will, for either purpose, be in general regarded as accurate and true, unless there is reason, from its own inherent qualities, or from extrinsic circumstances, for form- ing an opposite conclusion, or at least, for suspending the judgment. " If there is an adequate opportunity for arriving at certainty, or obtaining farther information respecting the truth of evidence, upon which the judgment is divided, the mind will require the satisfaction of which the subject is susceptible, either in confirmation of the fact asserted, or in contradiction of it, and the satisfaction expected wiU be in proportion to the importance of the object, to the degree of doubt attending the testimony afforded, and the nature of the opportuni- ties for dispelling, or diminishing it. " But if there is no further opportunity of acquiring an absolute knowledge of the truth, con- sistent with the purpose for which opinion must become the motive of action, the mind must decide according to the extent of its ability, upon the testimony actually before it, oompai-ing the general reason for admitting, with the particular reasons for rejecting it, and these, with other particular reasons in support of it, and forming the judgment according to the due preponderance, without permitting the effect of that preponderance to be destroyed by the inferior reasons, which previous to the moment of decision, may appear to be opposed to it. " This preponderance may admit of degrees, and the justness of the decision wUl depend upon the degree of preponderance, compared to the degree of importance attached to tlie decision. " Where the rejection of a fact as false, which eventually may be true, might be attended with material detriment, but the reception of it as true, if eventually it might be false, would be per- SEC. ii.J Nature of Human Testimony. 717 fectly insignificant, the eonduot will not only be influenced by the existence of a slight prepon- derance in favor of the assertion, but in opposition to a slight, or according to the increasing magnitude of the object, even a great preponderance against it ; or reversiag the supposition, ■where the reception as true, of what may be eventually false, would be materially detrimental, but the rejection as false, of what might eventually be true, would be perfectly insignificant ; the abstract degrees of preponderance in support of the fact, would be less regarded than the danger of the conclusion. In matters of mere spedulation, the decision is immaterial in matters of prac- tice essentially otherwise. " To adopt the conclusion which is supported by the strongest evidence, is in matters of per- sonal concern, the indication of wisdom and prudence ; in deciding upon the fate or interest of others, to exert the strongest and most patient efforts of the mind, for the purpose of attaining a similar conclusion, is the indispensable attribute of justice. " In the mtercourse of life, and in the administration of justice, the general assent to the vera- city of positive testimony will be a correct rule of conduct, which in most cases wiU be confirmed by subsequent observation and experience. But as this general rule is, in a great many particu- lar oases, faUacioua, as the application of it i^ frequently perverted by deception and error, it equally becomes the province of prudence, and of justice, to exert a proper and adequate caution for opposing and counteracting these exceptions, without permitting the excess of caution to defeat the benefit of the rule. " In some eases the spirit of caution is adopted by the law itself, which adverting to general causes that are deemed to have a tendency unfavorable to the adequate manifestation of truth, prescribes rules of authenticity wholly excluding the admission of less authentic testunony, reg- ulates the number of witnesses which shall be required for the establishment of a disputable fact, or excludes the testimony of those whose interest or wishes may have an influence upon their relation, in opposition to the natural operation of sincerity. By this exclusion truth is often frustrated, as in the general reception of evidence it is often disguised and perverted ; but, in both cases, the general principle of conduct is to provide for the greatest promotion and preser^ vation of it upon the Whole, The degrees of precaution vary in different communities, according to the habits of the people, or the spirit and disposition of the individual law. But in all com- munities there is a limit to the principle of restriction, and where that ends, the principle of pre- caution must begin, confiding to the discretion and prudence of the judge, the exercise of that discrimination which can be no further regulated by the mandatory provision of the law ; and it may not be unreasonable to observe, that where the latitude of the law is most extensive in the admission of evidence, it becomes requisite that the caution and circumspection of the judge shaU be proportionately extensive in the reception of it ; as being the only preservative against those abuses which, in a more rigid system, are prevented under similar circumstances by exclusion. " The combining a proper confidence, then, with a proper caution at the time of writing the sentence, is the groimd or object of judicial duty. "In adverting to the description of a witness whose testimony was regarded as equivalent to moral certainty, I, in the first place, supposed him to be wholly indifferent to the event ; but it very frequently occurs that those who are most interested in the event, have the most accurate knowledge of the subject. The testimony of these, it is the general pohcy of almost every sys- tem of jurisprudence to exclude. Others, intimately connected with the interested party and beyond the reach of exclusion, whilst they may be able materially to illustrate the subject of inquiry, cannot but entertain a wish upon the result ; and even those who are originally indif- ferent, wUl, in most cases, have an inclination in support of the cause for which they are pro- duced. This is pecuUarly the case where the party or his attorney and the witnesses have traveled together to an assize, or are hving together in an assize town ; or even when the witnesses themselves are together, as is commonly the case, for some time previous to the trial • the cause in which they are to be examined becomes the natural and usual topic of their conversation • and the success of it, generally speaking, cannot be a matter of absolute indifference. Where the wishes are anxiously engaged in favor of an event, the opinions are seldom-whoUy unin- fluenced. A philosopher sees in a stronger form of view the facts which favor his system ; an advocate, though avowedly argumg not upon his own impressions, but upon the grounds most favorable to his ohent, becomes really unpressed with the truth of the proposition which he is engaged to sustain ; and a witness, under the circumstances above alluded to, sees the truth 718 Of Presumptive Evidence, [CH. X. thfoBgh the medium of his wishes. It is the regular habit of the bar to exclude the witnesses from their consultations, in order to prevent their testimony being biased by the views which they might receive of the bearings of the cause ; but the other conversations in which they are engaged present that object to their mind. Some practioers, to insure the success of their cause ; interrogate the witnesses again and again, without any sinister motive, and merely with a wish to assist the accuracy of the examination. Others, more judicious, having once by careful inves- tigation informed themselves of the truth, trust to the natural and unprepared efflision of it. It is very easy to lay down a general maxim, that a witness ought to divest himself even of invol- untary wishes, that he ought, in the manner as well the substance of his narrative, to adhere to a succinct, impartial account of the truth ; but stUl the infirmities of human nature will have their operation, and a witness, in the short period allotted to his examination, wiU, in many cases, with a mind unaffected by the slightest intention of a willful deviation from veracity, give an aspect to his relations derived from the previous influence of his wishes upon his opinion ; and if this ou-cumstance will occur, as in numerous instances it unquestionably will, with respect to persons who are duly sensible of the nature of their obligation, how much more extensive will be the influence of similar considerations, with respect to those who are indifferent to it ? The inference which I wish to deduce Irom the preceding observations, is the propriety of receiving^ with adequate circumspection, that part of the testimony which may probably be influenced by such considerations as have been alluded to, without unduly discrediting the substantial parts of the relation, which may be entirely free from any rational objection. I am perfectly aware of the general adoption of the maxinii, that if the witness willfuUy deviates from truth in any particu- lar, the whole credit of his testimony is destroyed, and shall have occasion more particularly to allude to it ; but the true application of the maxim is only referable to those deviations which result from the actual depravity of the mind, and does not extend to its involuntary infirmities. " To illustrate my general idea by the particular application of it : Two witnesses may give a correct narrative of the same event, so far as their moral veracity is concerned, yet leave a very different impression upon the minds of their hearers; the mere manner of narration with respect to looks, tones and gestures, will produce the diflerence. The friend of an injured party will describe, wiih feelmg and interest, the subject of his complamt ; his previous sentiments give the subject an exaggerated representation to his own mind, which he communicates to his hearers ; the friend of his assailant sees, in a striking point of view," the provocation which to the other had appeared trivial and insignificant, and the conduct occasioned by it will appear in very mitigated colors ; and from a mere indifference in the mode of his relation, will produce a pre- cisely opposite impression ; while an unconnected bystander wUl give a representation perfectly accordant with the others in its general substance, but presenting the coiTect medium between the excess of one and the extenuation of the other. His own narration will receive a degree of " vivacity or sluggishness fi-om his constitutional character, but will not be influenced by those considerations which actuate the others. Wherever, therefore, the judgment and opinion may be involuntarily and unconsciously affected by the habits or relations of the witness, a suspicion may be reasonably entertained of the justness of his narration, so far as the operation of these causes may be imputed to him, without invalidating the general credit in his veracity. " To this observation may be added, the readiness which appears in adducing what is favor- able to the party on whose behalf the witness feels an interest, and a reluctance in disclosing what is adverse to him. I admit the duty of a perfect equality and indiSerence, but I conceive the deviations from that duty are referable, in many cases, to the sources which I have already alluded to. A witness is placed in a situation to which he is utterly unaccustomed ; he cannot possess the presence of mind and the composure of an indiflferent spectator, or control at pleasure the tendencies of his disposition ; the diflerence of his manner, with respect to the two pai-ts of a subject, will piioperly exercise the discrimination of those who are to decide upon his testimony ; they will endeavor to correct the effect of his partiality, but will not urge the charge of falsehood and prevarication, beyond the designed and willful dereliction of integrity. I trust that I have expressed myself with sufficient distinctness, to prevent its being supposed that I am becoming the advocate for intentional misrepresentation, or deliberate suppression ; I wish only to incul- cate the principle of preventing the natural infirmities of tho cliaracter having a more extensive influence upon the credit of testimony, than they may reasonably be supposed to have upon its truth. SEC. II.] CredMity of Witnesses. 719 " There are some particular subjects, in wliieh the suspicion of involuntary bias in a witness will be stronger than in others. It will evidently be least in plain matters of fact, as whether a carriage was on the right or left side of the road. It will be strongest when it relates to manner, as whether the driver, who is himself the witness, was conducting himsell properly or otherwise. The evidence of conversation and expressions ought to be received with very considerable circum- spection, so fer as anything depends upon its circumstantial accuracy. It very rarely occurs that two persons will relate the same conversation in the same rhanner. The particular phraseology of the relator will always blend itself with the' relation ; and nothing is more common than for the impression of conversation to be influenced by the previous disposition ol the parties to it or the hearers of it. The accounts which are published in the newspapers, of the proceedings in Parliament or courts of justice on the day preceding, vary considerably from each other, not merely in the taking a more or less comprehensive view of particular parts, but also in the sub" stance of the statement relative to the same particulars, and even in the order of the speakers ; and the general correctness of the representation is very seldom assented to by those who, from having been present, have an opportunity of oonflrming or contradicting it. " Nothing is more natural than to apply what we hear according to what we wish, to construe an expression of civility as an offer of service — the recommendation of a customer as a promise for the payment of his account. The Statute of Frauds has interposed its authority, to prevent the effect of this misconception in several cases particularly enumerated. The principle of that statute may be judiciously applied to the effect of evidence, in several cases without the limit of its provisions, but subject to the mischief against which it was intended as a remedy ; evidence of promises and acknowledgments is almost always given by persons who are in a situation whkih prevents their being absolutely indifferent respecting the effect, and who will, in many cases, unconsciously give a turn to the conversations which they relate, by no means accordant with the impressions which the speakerstintended to convey. To receive the representations of these persons as literally correct, to consider the expressions which they relate as having the same authentic certainty as a written document, will therefore, in many cases, lead to a conclusion repugnant to the truth, and consequently the attention given to such evidence will, according to the just principles of ratiocination, be much less than that which is due to the plain affirmative or negative of an unequivocal matter of fact. " There is one kind of testimony t<» which the preceding observation emphatically applies, and which is often subject to the additional imputation of an intentional want of fairness of conduct. I mean the acknowledgments which are obtained by persons connected with the law, on behalf of the parties for whom they are engaged. Such acknowledgments only deserve a full attention, • when it appears that they were made with perfect freedom, and with perfect plainness. The disingenuous artifices which are made use of to entrap a person into expressions to be used in evidence against him — the eagerness to make a direct and positive application of an ambiguous expression — to strain into a promise or acknowledgment what was never intended to convey that impression to the mind — cannot be too narrowly watched or too strongly discountenanced. Nothing is more calculated to excite an unfavorable opinion, than to see an attorney stand up to support his falling cause by supplying aU deficiencies of proof from some supposed conversation with the adverse party; and, according to the apt metaphor commonly applied to the subject pinning the basket. A reputable attorney will be cautious of engaging in conversation with the adverse party except in the presence of his own professional adviser, and will be still more cautious in avoiding any unfair representation of it; but, however strongly the general respecta- bility of the profession may inculcate the propriety of this practice, experience evinces that there are many particular exceptions ; and the caution which is advisable with respect to crediting the testimony of persons, whose situation is, in some degree, a pledge for the propriety of their con- duct, becomes requisite, in a still higher degree, with respect to the inferior officers of the law a • set of persons among whom there axe many instances of probity of character and propriety of con. duct, but who, in general, find their greatest interest in their adroitness to serve the parties by whom they are engaged. It would tend greatly to advance the credit of all evidence given of such acknowledgments, if they were immediately taken down in writing and communicated to the party making them ; and^ in case any dissent was expressed or explanation offered, that should be added to the minute ; in short, it is desirable that an accurate memorial should be made of the transaction, and of the demeanor of the party, before the impression of the memory 720 Of Presumptive Evidence, [CH. X. eould be perverted ; and, what is still more important, before the testimony could be influenced by a view of its materiality, derived from the subsequent aspect of the cause. The preceding observations may be extended, in a remarkable degree, to the inferior retainers of pohce, who generally feel a strong interest in the conviction of persona charged with criminal oflfences, and are apt to suppose their own reputation for assiduity and activity connected with that event. It would conduce to the purity of justice in this respect, if no accounts of the declarations of prisoners to these persons were received upon a trial, which were not stated and reduced into writing upon the examination of the prisoner before the magistrate, and the prisoner's declaration respecting which, at that time, was also carefully recorded. The magistrates should likewise be very par- ticular in stating, on the examination, the circumstances and manner in which the declaration was obtained, and not be satisfied with the common-place questions, of whether there were any threats or promises ; since the legal objection is in terms often carefully avoided, while the spirit and principle of it have their full operation and effect. Courts of justice generally, with great propriety, direct a jury to lay out of their mind any representation of officers of police, respecting the alarm or agitation manifested by a person on being charged with any offence, a subject which is often very eagerly presented to them ; correctly observing, that innocence may not be less agitated by an unexpected charge than criminality alarmed by detection. The evidence of per- sons who depose to their scientific knowledge of any matters in dispute, is, in many cases, subject to be influenced by their wishes in favor of the party adducing them. It has been the observa- tion of a great advocate, jiow advanced to a high judicial situation, respecting the conflicting tes- timony of surveyors produced by the opposite parties, that these persons were only advocates upon oath. The course of practice certainly furnishes many instances of the truth and propriety of the observation ; the proper correction of this inconvenience is, to apply the attention rather to the conviction which these advocates produce upon the mind, by the justice and consistency of their arguments, than to give their testimony the autho^ty which is due to an indifferent relation of an obvious matter of fact. " The above observations wiU sufficiently indicate the principle which I have endeavored to estabhsh, in favor of a distinction between the caution which should be applied in the reception of evidence, from persons who may naturally be supposed to be not indifferent in the event of an inquiry, and the absolute discredit of their testimony. " The opportunity of observation, the accuracy with whicli that observation has been conducted, and the fidelity of memory with which it is related, are also circumstances which should natu- rally form a material ingredient in the credit which it should receive. It is very certain, that the mind is often deceived by its impressions upon these subjects ; and that upon examination and inquiry, its most firm opinions are found erroneous ; for the truth of which position the most satisfactory test will be afforded, by referring each individual to the evidence of his own experi- ence. The well known anecdote of Sir "Walter Raleigh, who suppressed the second volume of his History of the World, upon finding himself deceived in the nature of an occurrence, of which he had supposed that he had an accurate knowledge from his own observation, is a constant les- son as to the propriety of a minute examination into the accuracy which the mind of a person possesses respecting the subject of his relation ; but it is a more important caution upon the ne- cessity of distinguishing between misconception and misrepresentation ; and against rejecting the general testimony, as unworthy of reception, from its want of veracity, when the only imputa- tion to which it is justly subject, is a mistaken conception respecting some incidental particular. The discordancy of witnesses upon the same fact, is therefore very frequently ascribed to a mere difference of observation or memory. The immediate attention of one person being directed to one part of a subject, and another to another, a different impression is left upon their minds ; each by the frame and course of his attention, will have a less Uvely idea, and a less retentive memory, and consequently wiU be, in a greater degree, subject to the influence of mistake, with respect to that part of the subject which has had the smaller portion of his regard, than with re. . speot to the other, upon which his mind has been more immediately occupied. A greater or a less degree of attention wiU also be pointed to the subject itself, without reference to the distinc- tion between the different parts of it, according to the mind being in other respects free or en- gaged, accordmg to habit, inclination, or an infinite variety of other causes being calculated, Oj otherwise to create an interest in the ocourrenco. Hence will result a difference of narrative which, so far as it Ls resolvable into this cause, will rather bo an indication of veracity, than in- SEC. II.] Tests of OredibiUty. 721 duce a suspicioa of falsehood. The distinction between the inconsistency that results from repre- sentations having no solid foundation in truth, and which therefore accompanies every part of a narrative, not included in the previous arrangement, and the variation which may be ascribed to a difference in the impressions of the mind respecting a real occurrence, often calls for the moat judicious discrimination. But though a discordancy referable to the causes which have been mentioned, is certainly no indication of falsehood, it is sometimes too strongly relied upon as a manifestation of truth, and as demonstrating that there has been no previous concert ; whereas, it is almost impossible for a previous concert to embrace every incidental circumstance, which may be introduced into the examination as a test of veracity. I conceive that this discrepancy is, in general, only a negative quality, leaving the testimony of which it forms a part, to stand or fall by its merits in other particulars. I have heard of a mode sometimes adopted (and the men- tion of which is not so much calculated to promote the practice, as to defeat it), of giving to a mere fabrication all the circumstances which will insure an apparent verticity, by the consistency of the relation, without giving it the appearance of a concerted narrative. It is said, that in order to prove an aMbi (a defence the most conclusive, if true, but the most readily counterfeited), seve- ral associates of the prisoner meet together under circumstances in which they mean to state the prisoner to have been, the prisoner being represented by another person ; nothing is more easy to fix, in concert, than the time to which the relation shall refer ; and the actual occurrences at this rehearsal form the basis of the consistency upon the trial The person of,the prisoner, and the date of the event, are the only subjects misrepresented ; and every ather circumstance being founded upon truth ; will equally stand the teat of examination, as a relation of the most sub- stantial veracity. " I have already alluded to circumstances, with respect to which the impression of the mind is ma" terially influenced by the previous disposition, referring particularly to the report of conversations. The observations which were then made will, in many oases, be applicable, where the cause alluded to has not any operation, and where the want of accuracy may result from causes wholly unconnected with any bias upon the testimony ; of which the principal is the negative cause of a want of adequate attention or perception. How generally does it occur that we mistake, at that very instant, the meaning intended to be conveyed, by expressions directed immediately to ourselves, and of how many private animosities ia this circumstance the cause 7 How great, then, is the caution which ought to be applied to the relation of particular expressions, to which the hearers, at the time of their occurrence, were in no wise interested to attend, or which, from their situation, they were liable to misconceive ; and how slightly does an inaccuracy, or discord- ancy in this particular, affect the general credit of their testimony ? An instance lately occurred of a person who deposed, that he heard a, gentleman of high character and respectability, the second in a duel, which proved unhappily fatal, say to his principal, in returning from the field, By God it does me good I This was adduced as the indication of a mind peculiarly mahgnant. The testimony did not receive credit ; but the gentleman alluded to, upon revolving in his mind what could have been the occasion of it, recollected having said, with reference to the state of his healtli, and some circumstances connected with the occurrence of the morning — This will do me no good. Without affirming the authenticity of this latter fact, nothing can be more manifest than the probability of the explanation, while, on the other hand, nothing could have been more improbable, than an intentional falsehood on the part of the witness. And if particular expres- sions are so liable to misconception, in the moment of their occurrence, it is clear that the danger of unintentional misrepresentation is greatly increased by the imperfection of the memory. " Another subject upon which many instances of mistake oceiir, both in the course of private experience and of judicial inquiry, is the identity of persons. Mistakes upon this subject not unfrequently occur, with respect to persons with whom we are previously familiar, but with whom we had no immediate communication upon the occasion related. The mere impression of personal resemblance, in those of whom we had no previous knowledge, Ls evidently much more fallacious. Some years ago a person was tried at the Old Bailey for a robbery, and his person was positively deposed to ; his defence consisted in proving, most indisputably, that at the par- ticular time he was upon his trial, at that bar, upon a different charge. There are a great many modern instances of positive and sincere testimony upon criminal charges, with respect to the identity of persons, whose absence was manifested by the most convincing evidence. Upon these occasions, it appears moat judicious to receive the evidence of identity with considerable Vol. I. 46 722 Of Presumptive Evidence, [CH. X.' distrust, unless it is accompanied by circumstances incontestably applying to the particular person who is the object of inquiry already alluded; to. " According to the difference of habits and characters, the minds of individuals are directed with greater or less attention to subjects of different kindsj and their testimony respecting these is susceptible of correspondent variations of accuracy ; and therefore minuteness of recollection, upon one particular of a transaction, is not repugnant to a considerable uncertainty in another. In some, a particular distinctness with respect to dates is contracted by an unusual forgetfnlness with respect to names or persons. Others, again, have a very imperfect memory with respect to all these, but a minute recollection of circumstances. However fair it may be iu an advocate to take advantage of the variations resulting from the particular character of the memory, the in- terests of truth require the judge to fii the effects of these discrepancies at their proper value, to distinguish between the accuracy and inaccuracy of the different parts of the narration, and to prevent an inaccuracy in circumstances being mistaken for a dereliction of veracity in the substance. " It is the property of the memory, like the attention, to be in general more immediately en- gaged by particular parts of a subject, which present themselves naturally and spontaneously, whilst others are only brought into recoUeotion by the effect of exertion, or may lie wholly dor- mant. It very seldom happens that all the circumstances of a transaction occur, with equal readiness, to the mind ; and, therefore, the omitting to mention a circumstance in the first ac- count, is by no means a cpnvinoing argument of its intentional suppression. In general, a wit- ness comes into a court with the memory strongly bent upon those parts of a cause which have occurred to him as material. The revival of other circumstances is the result of a particular ex- amination respecting them ; and, according to the usual operations of the mind, tiiey will unfold themselves gradually at first, with indistinctness, and afterwards with precision, unless this- natu- ral progress is prevented by an intimidating and acrimonious course of inquiry. " It is to this ground of accuracy of observation and recollection, that the preference of positive to negative evidence is principally to be referred ; for it is much more probable, that a person may not have observed an occurrence which actually did take place, or having observed it, may not have recollected it, than that another should imagine circumstances which had no foundation in existence ; and it is only to this kind of negative, which is accounted for by the want of obser- vation or recollection, that the preference properly applies ; for, if the ground of denying the truth of an assertion is an actual positive observation in opposition to it, this testimony is, to all rational purposes, as much affirmative as that which it is opposed to. Thus, if a witness alleges a person to have been drunk at a given time, and another declares that he was not drunk ; it is an affirmative declaration that he was sober, and the weight of credit must be decided according to other cu'oumstances. A distinct account from the witness asserting the party not to be drunk, that he had been in a coach with him all night, and for several hours in the morning, up to the time in question, and that he had not tasted any intoxicating liquor, would be more convincing trhan the general declaration of a state of drunkenness. With respect to the permanent nature of a subject, negative evidence is as strong as afiarmative, if the nature of the subject is such that the former is equally free from the suspicion of error with the latter. A person swearing that there is no bridge over the Thames, between London and Blackfriars, would be entitled to as much attention as another swearing that there is a bridge between London and Westminster; and the same observation, which is so palpable with respect to the instances alluded to, ought equally to prevail in other cases referable to the same principle. " It sometimes occurs, that a witness, having a given fact proposed to him, will not swear positively to the non-existence of it ; when the fact is of such a nature, tliat if ti'ue, it cannot be supposed but that he must have known and recollected it. Thus, if a witness was asked whether, since the commencement of the trial, he had told a person present that he was come to perjure himself; there can be no doubt but that he can with sincerity only answer yes, or no ; but there are many cases in which it is equally evident, to those capable of forming an adequate judgment, that the recollection of the existence, or non-existence of a given fact, must be perfectly distuict ; but In which the witness, from a superabundance of caution, expresses himself with doubt and hesitation ; and in fact, I observe this kind of hesitation to be very general, in persons of confined habits of thinking, when examined upon such topics. They are then plied with a sot of questions about, If it had been so, must you not have recollected, &o., &e., asked iu a manner SEC. II.] Where Witness gives a Reason. 723 which iaeroaaes their embarraasmeut ; but the answer to which is not so much an act of testi- ^nony as of reasoning. "Where proof is actually giyen of a fact, that the witness could not but know and recollect, his expressing himself in terms of doubt and uncertainty, is to be regarded as an act of willful misrepresentation ; on the other hand, if no such proof is given, and the testimony is, in other respects, unsuspicious, and the witness is not a person who, from his situation and understanding, cannot but be aware of the power of giving a direct affirmative, or negative ; it shonld be taken as the result of his testimony, that the fact did not exist ; or at all events, it should not be talien for granted that it did, from a witness declaring tliat he could not swear that it was not so. " Evidence of reasoning is also referable to the same general topic. A witness's testimony of a, fact may be positive, though the reason he expresses for it is false or absurd. I have heard a witness, when cross-examined as to his reason for knowing clothes which had been stolen from him, refer to a matter of general description, which of course was followed up with. Sad no other- person ever doihes of that descripiionf The judge in his observations to the jury observed, that a witness, in assigning reasons for facts of which he must have a positive knowledge, as the iden^ tity of his own clothes, often gave the worst reason that could be imagined ; but the absurdity of the reason ascribed, did not diminish the weight of the testimony of actual knowledge. But where the evidence necessarily resolves iteelf into matter of reasoning, the case is materially dif- ferent, for there the failure of the reason prevents the subsistence of the conolusion which iS' f(3unded upon it. To instance a case which occurred in the same couKt with the preceding, a witness swore that a person examined on the other side, was not fit to be believed upon his oath ; and being asked his reason said, that he had never made a good fence since he came to his farm. " Where a witness is examined as to his reason, intention, or opinion upon some past occasion, it will often happen that he states such reason as appears to him most plausible at the time of his examination. If the reason inquired for, relates to some positive fact out of the ordinary course of occurrences, the reason and motive can be, in most cases, remembered, with as muek distinctness and'accuracy as the fact; but I have known persons interrogated with some severity, as to their reason for not doing something, to which the nature of the thing supplies the answer, that no adequate motive occurred to induce them actually to do it ; but the witnesSj perplexed, and confused by the question, wUl, in an indistinct and hesitating manner, give some answer which induces an unfavorable impression with respect to his veracity. This observation occurred to me in hearing a trial, where a witness who had made a shaft for the purpose of getting bruie under the land of the defendant, made certain observations and experiments, to ascertain that he did not carry it und'er the land of the plaintiff, and these observations being such, as if true, were, from the nature of the subject, conclusive with respect to the inference deduced from them, he was interrogated as to his reasons for not doing various other things suggested to him at the trial. Sometimes an intention is inquired into, respecting an occurrence at a distant period, upon which, in all probabiUty, there did not exist any intention at all ; as where a person, who had' forty years before engaged her son to serve another for a given time to learn a trade, was asked whether she did not intend that he should be an apprentice ? To this, being as usual, desirousi of getting to an end of her examination, she answered yes: whereas it was highly improbable that she should have any intention with respect to those distinctions between service and ap- prenticeship, which have been introduced hito the settlement law ; instead of merely designing th3,t there should be a service and instruction upon the terms agreed upon, according to which terms the son would have acquired a settlement by service ; yet from this answer, yes, a bench of justices was induced to decide the contract to be a defective apprenticeship. " And here it may be proper to advert to a distinction, which has often occurred to me, and was referable to the preceding case, between the words used by, and proceeding, from the wit- ness as his own, and his giving an answer of yes or no, to the question proposed to him ; the former being the indication of his own impressions and recollection upon the subject of inquiry, the latter being the result, the adoption, or rejection of an extrinsic suggestion. It is, therefore, an accurate representation of thp testimony of a witness, to state that he had given a narrative in language apparently his own, when he had merely given an affirmative or negative answer to the language of another. Such a conversion of expressions can only be an adequate delineation, of the testunony, upon the supposition of the witness having distinctly and fully comprehended the language presented to him, and of his assent or dissent to it, being, a perfect representation of 724 Of Presumptive Evidence, [CH. X, the ideas previously existing in his mind. There is a peculiar danger of this kind of perversion, when a summary and ex parte representation, taken at one time, is introduced in evidence at another. " The preceding observations have been chiefly referable to testimony upon mere matters of fact, but these are often blended with matters of judgment ; and the latter are themselves, in many cases, the sole object of examination. The adequacy of the judgment must therefore be as- sented to before any confidence can be placed in the result of it ; and this confidence will depend upon the apparent or acknowledged talent of the witness, and his opportunity of forming an ade- quate opinion, which latter circumstance will be materially influenced by the nature of the sub- ject to which it is applied. In general, every person exercising an occupation, is supposed to be conversant with the subject of it, and his opinion is abided by, unless contradicted by others en- titled to an equal confidence ; or unless there are intrinsic circumstances for disputing it ; cuilibet in arte sua credendum est. " But upon the conflict of testimony, a judgment is often to be pronounced according to the apparent relative competence of the respective witnesses; this judgment ought not to be hastUy referred to the fluency of their expressions, or the plausibility of their manner ; since a patient attention will often perceive, that the most accurate knowledge is not always accompanied by the greatest facility of communicating it. The opportunity which results from the actual obser- vation of a particular subject, is evidently more to be relied upon, supposing the judgment to be equal, than that which is founded upoii relation, and much more than that which is referable to mere hypothesis. A consistency with undisputed facts is one of the most advantageous tests of the confidence which ought to be reposed in the decisions of the judgment, but it is often dan- gerous for those who are to decide, acting upon their own inadequate conceptions, hastily to de- duce a charge of inconsistency, in opposition to the opinions of technical experience. Wherever such an inconsistency is supposed to exist, it should be fully pointed out, for the purpose of re- ceiving such elucidation as the witness may be enabled to afford, without reserving it for matter of subsequent observation, which may probably be erroneous. " The testimony of a witness, with respect to subjects upon which he has a peculiar knowledge, is sometimes received with satisfaction on account of his deposing to the existence of distinctions, or criteria, which are not perceptible to those by whom he is examined ,- and which, because they cannot discern, they will not suppose to exist ; but this is an improper standard of judg- ment, for every person can, with instantaneous facility, discover the casual variations in subjects with which he is habitually familiar, and these in circumstances so minute that they would not be susceptible of communication to a common observer. The Arat or Indian will trace, through the forest or desert, the footsteps of which the members of cultivated society cannot discern the slightest impression. The mariner will describe the particulars of a vessel, which to the passen- ger appears a speck in the horizon ; the lawyer and the physician, in the objects of their respec- tive professions ; the botanist in his plants ; the chemist in the contents of his laboratory, will perceive a materiality in distinctions, of which, to those who are unaccustomed to their different pursuits, they cannot convey an intelligible description. The mind in weighing the capacity of an expert, with relation to the subject of his art, should not decide upon the apparent uncer- tainty of the new and adventitious object of its attention, but upon comparison with its own facility of observation, upon subjects with which it is most familiarly conversant. There are few subjects in which, independently of experience, or the conclusions of precise and accurate reason- ing, there would be a greater apprehension of uncertainty, or a stronger suspicion of guess and conjecture, than the art of deciphering, yet it is an art which (at least in its lowest application, of a substitution of letters), depends upon principles as certain, and almost as easy of communi- cation, as the lowest rules of arithmetic. The weakness of those who circumscribe the bounds of possibility and veracity by the limits of their own perception, is often illustrated by applying the. fable of the horse, who was torn to pieces, for assorting in the torrid zone, that in other climates the men were white, and that passengers could travel over the surface of rivers." There are also many cases in which witnesses speak fl-om judgment and opinion, without reference to any technical knowledge ; such, for instance, is evidence for character, and all other testimony amounting to a general conclusion upon particular facts; when this conclusion ia accompanied by a narrative of facts from the same witness, the sufficiency of the conclusion is a matter perfectly distinct from the reality of the facts ; an advocate who would impeach the SEC. II.] Consisting of Statement. 725 veracity of the facta, makes but little progress, by showing the weakness of the conclusion — and, on the other hand, the advocate who relies upon the facts, is not precluded from disputing the conclusion. This may be illustrated by the following case, which I have known to occur in prac- tice : A person deposed to having entered into a service under circumstances which, in point of law, would amount to a general hiring, which is equivalent to a hiring for a year ; but she also declared that she was not hired at all ; the latter part of her testimony was evidently no more than the judgment of an ignorant witness, as to the legal import of the term hiring, to which she attached the idea of an engagement made in a certain manner, or for a certain time expressly mentioned; but it was contended, and successfully, in a court of quarter sessiops, that it was impossible to pronounce in favor of the acquisition of a settlement upon this evidence, as the witness, upon whose testimony the whole depended, declared that there was not any hiring, and those who produced her and rehed upon her evidence were bound to take the whole together. In deciding upon the truth of evidence, much stress is laid upon the inherent probability of it, a criterion which, within its proper liaiits, is attended with great Utility, but which like aU other general criteria, may be carried too far ; for whsre a testimony is direct and positive, where the circumstances to which it relates are palpable and not calculated to excite delusion, where the witness had a perfect opportunity of knowledge, where he has no motive to misrepresent, and still farther, where the representation ' militates against the usual motives of conduct ; where several witnesses of unimpeaohed integrity, free from all suspicion of collusion, speaking from detached and unoommunioated knowledge, concur in the attestation ; where the fact contested concurs with other undisputed phenomena, not reconcilable with the supposition of its false- hood ; the previous and insulated probability of the fact asserted, is a less powerful motive for the decision, than the positive conviction resulting from the force of the testimony ; the rejection of which would be founded upon a much higher degree of improbability than that which it pro- fesses to correct. Such I conceive to be the summary of the argument, which is usually applied to a subject of a much superior nature to that of my present investigation, but the principles of which may be properly adapted to inferior objects of ordinary disputation. It is seldom that a case will occur, in which the improbability of falsehood will advance to that high degree of cer- tainty which is involved in the preceding enumeration, but each of the circumstances alluded to wiU have their influence in forming a, decision between the abstract improbability of the fact related, and the particular improbability of the immediate relation under all its circumstances being false. I have witnessed several eases which called for the practical application of this dis- tinction. The one which at present occurs to me, is an action against a man for sowing the field of another with dock seeds ; a tact which was positively sworn to by a casual observer, and oou- jBrmed, amongst other circumstances, by the growth of the docks in the course which he had taken ; it was contended to be highly improbable that any man should be guilty of such malig" nant conduct; but it was answered that it was much more improbable that the witness, who had no connection with the one party, or animosity against the other, should gratuitously involve him- selt in perjury, in attesting the fact which was so corroborated. A topic connected with the preceding observations, which relate to the subject of the testi- mony, as existing in the mind of the witness, and intended to be the object of his representation, is the correctness of the language used by the witness in conveying his sentiments, and of his conception of the question proposed to him. The degree of accuracy with which the language represents the sentiments, is a proper subject of inquiry before the terms made use of are con- strued with too little precision; and the incorrectness of language, or conception, should be care- fully distinguished from misrepresentation or evasion; an observation which seems to be unnecessary from its obvious propriety, and the little danger which may be supposed to exist of & contrary practice. But the fact is otherwise, and a mutual misconception, either real or affected, is frequently the ground of cavil on the other side, or the screen for equivocation on the other. When the latter is the fact, it is very seldom successful ; the equivocation is kept up for a second or two, and the exposure of it very properly throws a general discredit on the whole testimony of the witness ; but the want of a patient and temperate attention may often permit this imputa- tion to fall where it is not justly merited, and where a carefiil examination of the meaning intended to be expressed would completely remove it. What has been before observed, with respect to language as being the subject, may, in some degree, be applied to it as the medium of 726 Of Presumptive Evidence, [CH. X evidence ; but the error resulting from its inaccuracy or misconception is, frOiti the difference of the occasion, much more easUy Susceptible df correction. Peculiar modes of speech, either per- BGtial or provincial, metaphorical' language, a greater or Smaller latitude in the acceptation of terms, the mutual substitution of definite and indefinite ex|)ressiohs, are some of tbe causes which contribute to the uncertainty at present under consideration. In some parts of the country it is, with persons in the inferior station of life, an ordinary mode of speech to say that they believe a fact, of which they have the most positive assurance. "When this expression slips out on a judicial examination, we commonly hear tbe question, Believe, wre you not sure of it? and an SMswer in the affirmative is followed up, with, then iehy do you say you believe f A question very proper, when there is a suspicion that the terms of the answer were intentionally evasive; but tile corrective is frequently applied, when, in fact, the cause of complaint does not exist. Some- times the mode of phraseology, which gives an exaggerated or extenuated representatioJi of a subject, without any consciousness of an intention to deceive, originates from those views of a subject which are connected with a disposition respecting th-e event, and whieh have already been the subject of observation. — 'The same general observation, which has already been so often traced in its different applica- tions, of a distinction between inaccuracy and misrepresentation, applies to the conviction subsist- ing iii the mind from the representation of others, where the fact is regarded as certain, and is represented as existing, although the source of the witness's knowledge prevents its being a mat- ter of legitimate evidence. I conceive that this inaccuracy often escapes undetected ; the witness speaking in general terms of the existence of the fact, and there being no suspicion of his duing So, otherwise than from his own observation. Some facts we speak of as assuredly true without objection, of whieh our knowledge is almost necessarily derived from repiitation, as for instance, the death of a person ; the supposed notoriety of some other facts, induces us to think and speak of them with the same degree of assurance as of this, which, though ah infraction of the legti rules of evidence, is no transgression of the moral obligation of veracity, although it iS sometimes represented as such, in the course of a caiptious cross-examination. The manner and deportment of witnesses is very commonly a principal ground of assent to, or dissent ffom their testimony ; and is doubtless a very natural indication of the existence or the want of sincerity. That the disposition of the witness will have an influence on his manner, is nadisputed ; the adequate observation of it is, however, a matter requiring the most skUlful and judicious discernment ; and the detection of affected plausibility, and the assistance of constitu- tional timidity, are objects Which respectively import, in an eminent degree, the proper adminis- tration of justice. A perfect judgment of the causes of a person's demeanor upon a particular occasion, can only be formed by those who have a previous knowledge of his general habits and character, and, in this respect, an intelligent jury is of great advantage ; since being assembled from different parts of the country, some of them wUI, In most cases, have at least a general knowledge of the witnesses who appear before them. It "would be greatly beyond the limits of my power to trace even a slight outline of this extensive subject ; but a few detached observa- tions, founded upon my impressions respecting it, may not be wholly irrelevant. In deciding upon tbe demeanor of a witness, considerable allowance is to be made for the unaccustomed situ- ation in which he is ijlaced, and the impressions which it may be calculated to make upon his mind. To some persons this public appearance is a matter of indifference, but by many it is re- garded with an apprehension, productive of embarrassment and agitation, which to unskillful observers, may appear the result of insincerity. This embarrassment will sometimes attach itself in a peculiar degree, to those who are accustomed to appear before the public in ft different situ- ation, and who are therefore habitually anxious respecting the impression which they may induce. It is an anecdote of Garriok, that when examined as a witness respecting the nature of a free benefit, he was incapable of giving an intelligible testimony. In decjidihg upon the demeanor of witnesses, much attention is due to the mode of interrogation, and the populaj- opinion respect- ing the person who is engaged in it. An asperity in the particular conduct of the counsel or the judge, or even the reputation of it, with respect to the former, wiU necessarily produce an effect upon the sensations and deportment of the witness ; and an apprehension of the ridicule which frequently afSxes itself permanently to the character, is often a predominant sensation of the wit- ness upon his examination. Good sense, when fully exercised, will correct these apprehensions, and satisfy the witness that violence and ridicule will be ineffectual, when opposed to the plain SEC. II.] Manner and Appearance of Witness. 727 and unaffected language of tratli; but the dictates of good sense are often an insufBcient preserv- ative against constitutional timidity. A resolution to appear undaunted, and repel the expected aggression of counsel by insolence, a foolish inclination to make a theatrical exhibition of wit and humor, exciting the horse-laugh of the by-standers, » moroseness and suUenness of temper, will give an unfavorable aspect to the manner of a witness, when there is no intentional want of veracity in the matter. The real absurdity of a witness's demeanor or mode of representation, will often diminish the proper im- pression of the facts for which it is necessary to resort to Ms testimony, and particularly in cases where there is a latitude of discretion, as in questions of damages ; the judgment is often practi- cally biased, by the sentiment of ridicule being a test of truth. A due regard to the principles of justice wiU, however, prevent the fair demands of a party from being affected by the suUen- ness or absurdity of the witnesses whom he is necessitated to adduce in support of it ; and will lead the mind to a studious discrimination, between the fact which is the subject of inquiry, and the accidental circumstances which may accompany the relation of it. " The judgment upon a witness's manner is not unfrequently framed by a ccptrast between a cool and steady narration, and a fluttering hesitation ; this judgment may, however, often be fal- lacious, for a witness who has prepared his story, may have sufficiently arranged the particulars of it in his mind, while another who has an opportunity of contradicting it, if false, is surprised and confounded by the unexpected statement. In a case where I had an opportunity of know- ing the real facts, I have seen a witness give a steady and coUeoted representation of a supposed conversation in a perfectly simple and unaffected manner ; the opposite witness, when suddenly interrogated as to the existence of such a conversation, began with, Not that I recollect, I do not ielieve it upon my honor, and a greait many other exclamations, in such a coilfused, suspicious manner, that even those who, from their private knowledge, had the most indisputable confidence of the veracity with which he told them upon coming out of court, that there was not a syllable of truth in the conversation related, perfectly acquiesced in the propriety of a decision founded upon the opinion of his falsehood. " That testimony is very open to suspicion, which is given by a person who is evidently medi- tating upon the materiality and tendency of his answer, before he will let it be given ; or, on the other hand, who bolts out with precipitancy before he hears the question, an answer indicating a catechised preparation ; the effect of either of these circumstances singly, is greatly increased by their combination in different parts of the same testimony. A Welch witness, who intends to give unfair testimony, always affects an ignorance of the English language ; in consequence of which, the effect of cross-examination is not only weakened by the intervention of an interpreter, but the witness has time to collect and prepare his answers. But even that previous study of an answer, which has been mentioned, wUl have a different effect, according to the character, and situation, and habits of the person who is examined. I have, in an earlier part Of this dis- cussion, taken notice of circumstances calculated to influence the disposition, and which, though by no means justifying prevarication in any case, diminish the suspicion Of a want of substantial ve- racity, which results from a want of propriety in incidental particulars. ' The suspicion of fabrication rises highest when the witness is one of those inferior retainers of the law, who are commonly attendant upon courts of judicature, who have a cunning acuteness in the observation of its proceedings, and who, from their occupation, are frequently in the habit of swearing to facts, in their own nature liable to misrepresentation, and placed beyond the reach of detection or contradiction. " The general character of witnesses is also a circumstance which has naturally a considerable influence upon the credit of their testimony ; and we shall have occasion to mention, in a sub- Sequent section, certain cases in which the testimony of persons convicted of particular offence's, is absolutely excluded, upon a legal presumption that those who have been capable of such acts will not be influenced by any moral or religious obligation to adhere to the dictates of truth, when any cfroumstance may occur to influence their mmds in opposition to it. I think it is by no means desirable to extend this principle of exclusion, for, in general cases, the rejection of any person as a witness does not operate to the prejudice of himself, but of the public or private interests which may be concerned in the disclosure of the facts of which he has a knowledge ; and, even in the most depraved meOibers of society, the natural influence of truth, and the tem- poral risks of perjury will be a security against the commission of gratuitous falsehood. But 728 Of Presumptive Evidence, [CH. X. wherever there is reasonable ground to suppose a bias in the mind, with respect to the effect of the testimony, a previous criminality of conduct will very justly excite suspicions of its veracity ; and the mind will naturally refuse ^ts assent to declarations made by those whose disposition in favor of the event cannot be supposed to be counteracted by a superior sense of obligation. I have already observed, that to assent to a given proposition, we require a preponderance of tes- timony in support of it; in questions, therefore, respecting the credit of a witness, the want of assent is not founded upon an assurance that his testimony is false, but from the want of an adequate assurance that it is true. "Where it is distinctly ascertained that the witness is indifferent with respect to the event, or where it appears that his wishes would naturally induce in opposi- tion to his testimony, the general inclination to veracity might be, in most cases, a sufficient assurance of the facts deposed to by a person even of the most exceptionable character ; but the testimony will be properly open to suspicion, not only when a person of this description distinctly appears to have a collateral motive for desiring a decision in support of his testimony, but also whenever there is not a sufficient reason for presuming the contrary ; for the inducements which may operate upon a mind susceptible of corrupt influence canpot easily be detected, although they may actually exist. It is the want of an adequate assurance that the testimony is true, which very properly occasions a great degree of caution to be applied to the testimony of accomplices in criminal prosecutions; and induces courts and juries to disregard such testimony, except so far as it is confirmed by circumstances affecting the parties accused, deposed to by witnesses of irreproachable character. There is not in these cases a positive suspicion, arising from the nature of the evidence itself, that it is actually false ; but there is a manifest want of those principles of duty and oWigation, which are the strongest assurance of its being true ; the actual motive is almost always in favor of truth, if it is clear that the witness had some companion in his offence; and it has not, in any instance, occurred to me to suspect that evidence of this description, which I have had an opportunity of hearing, was fabricated ; but there is no doubt that it frequently might be so, if a less jealous caution was exercised in its reception. " It is an established rule, that witnesses examined witb a view to discredit the testimony of others, cannot be admitted to depose to particular facts of criminality, but can only express their general opinion, whether the party is or is not entitled to be believed upon his oath ; but the other side, who, to support the testimony, may inquire what are the reasons of disbehefj which sometimes, as in a case above adverted to, are ridiculous enough. If it is declined to inquire into these reasons, there is pretty considerable ground to presume a consciousness that the opinion is founded upon adequate motives. I have heard witnesses asked whether they had ever known the persons, against whose veracity they depose, give false evidence in a court of justice ; and, upon their answering in the negative, it was intimated to the jury that the testi- mony to their discredit was absolutely frivolous ; whereas, if the question had been, what were the reasons upon which the discredit was founded, a fraudulent conduct might have been shown, which indicated the want of moral and religious principle, and consequently affected the strongest ground of reliance upon testimony. "When witnesses speak to the character of others, not only their own character, but their ability and opportunity to form an adequate judgment, are circum- stances very proper to be taken into consideration. "It is a rule of law, that witnesses cannot be asked any questions which tend to subject them- selves to punishment, or, as it is usually expressed, to criminate themselves ; but whether they may be asked if they have already received a punishment which does not disqualify their testi- mony, or whether they may be interrogated as to any circumstances of improper conduct, not immediately connected with the subject of their examination, and also, whether their refusal to answer inquiries upon these subjects can be observed upon as affecting the credit of their testi- mony, are questions of great importance, upon which there is a very considerable difference of opinion. Some judges are very strongly of opinion that these inquiries ought not to be allowed ; but it has been understood to be the more prevalent opinion of the bench, as it certainly is very generally the opinion of the profession, that they are admissible and proper ; and tliis latter opinion is clearly supported by the coui-se of practice which has actually prevailed. Mr. Peake, in the second edition of hia Law of Evidence, states the arguments in support of these opposite opinions in a very fair and perspicuous manner ; and the right and propriety of the examination alluded to are maintained with considerable ability in a pamphlet entitled. An Argument in favor of tlie Sights of Cross-Examination. I have at all times felt a very considerable difficulty in the SEC. II.] Situation and Number of Witnesses. 729 consideration-'of this subject ; but as a knowledge of a witness's habits and pursuits, his condurt and disposition, will naturally influence the regard which is paid to his assertions ; I think that the preponderance of argument is in favor of the opinion, that an examination, by which these may be ascertained, cannot upon any general principles, be suppressed as irrelevant or improper ; and that those arguments respecting a witness's conduct ought not to be rejected, which may tend to detennine the regard that the mind,- without reference to technical rules, or legal considerations, would pay to his testimony. At the same time, I think that this is a liberty which, like all others, will be best secured by a cautious vigilance iu repressing its abuse, by a refusal of advocates to adopt the passions and prejudices of their cMents, and to injure a witness by reproaches and insinuations that cannot reasonably be expected to influence the fair decision of the cause ; and by the court showing a marked discountenance to the adoption of a different line of conduct, calculated only to occasion an unnecessary pain and injury to the witness, with- out promoting the rights or interests of the party. " The situation of a witness in life is also a circumstance which frequently ipfluences the regard that is paid to his testimony, especially with respect to matters of judgment and observation ; and even with respect to mere veracity, it is not wholly indifferent ; .for although, in the abstract, the testimony of every person is to be regarded as true, and the sense of obligation may be equally strong in every condition of society, the temporal disadvantages arising from the detection of felsehood or prevarication, independent of the terrors of legal punishment, will frequently depend upon, or be connected with a person's rank and station ; and therefore all considerations of credit, connected with the evidence itself, will be and constantly are materially influenced by this cir- cumstance. The effect of a bias in favor of the event of a cause, resulting from the situation of a witness, will be more or less strong in proportion to his being more or less subject to temptation; the comparison between the relation itself and its probability wiU be made with greater minute- ness, in proportion to the stake in society which is engaged in support of its veracity. The influence of situation is most strong in eases of conflicting testimony ; for supposing other circum- stances to be equal in every respect, there is no doubt but that a considerable diversity of situa- tion would have considerable influence in directing the balance of credit ; and to illustrate the position by an extreme instance, few persons would hesitate in regarding the narrative of a clergyman on the one side, with superior credit to that of a bailiff's follower on the other. "The number of witnesses, and their concurrence in support of a given assertion, is also a subject of material importance in deciding upon the credit of their testimony ; for the improba- bility of two witnesses concerned in the same falsehood, or being influenced by the same mistake, is much less than that of the falsehood or mistake of either of them iadividually ; and the improb- ability increases in proportion with the number. But in the contrasting of contradictory testi- mony, the mere consideration of number is held subordinate to that of the indications of individual veracity, and, the maxim that pondercmlnir, nan nvrmerantw testes, is of very frequent practical application. Other circumstances being equal, the preponderance of numbers is certainly entitled to the advantage, and sometimes this preponderance win be sufficiently great to counterbalance an apparent superiority in other circumstances on the opposite side; and although nothing can be more remote from the subject in discussion than the application of the strict rules of mathe- matical equality or proportion, a fair attention to the principles of those rules is often of consider- able importance. The degree of iofluenee or indifference of the respective witnesses, their apparent veracity, their demeanor, their character, their situation, the probability of their relation, are circumstances, all of which are to be carefully and attentively brought into the account. The opportunity of confederacy, or the want of such opportunity, is a most important considera- tion in determining the effect of numbers. The concurrence in speaking of one observation of one detached fact, is of much inferior value to the concurrence of persons speaking from detached and separate observations, of different facts leading to the same conclusion. I have already had occasion to advert to the accordance or variation of witnesses speaking of the same occurrence, to the difference between that inconsistency which essentially fastens itself upon the substance of the relation, and that which may be fairly referable to different degrees of accuracy or minute- ness, in the observation or memory of facts which have actually occurred; and to the unity and accordance, which being too strict and circumstantial, are inconsistent with that diversity of observation and expression that naturally occurs in the unprepared account of a real transaction, and afford an indication of concert and design. It is not an unfrequent observation, that if one of 730 Of Presumptive Evidence, [CH. X. the witnesses in aiappOrt of a cause is not entitled to be credited, the discredit attaches to the cause, . and extends to other witnesses apparently unexceptionable. This kind of objection is, I think, sometimes applied too generally, and without using that caution and discrimination which the principle of it essentially requires. In case the impeachment of the veracity of a particular wit- ness results from circumstances that indicate management and fabrication in the cause itself; in case the perjury of the Witness implies the subornation of the party, the whole system may be regarded as tainted and corrupt, unless there are any, in other respects, superior reasons for believing the contrary ; and the mere absence of circumstances of suspicion, directly affecting the other witnesses, will not destroy the presumption of falsity that has attached itself to the cause. But if the imputation upon the particular witness is merely personal; if itTesults from considera- tions foreign to the immediate cause; if it is founded upon some collateral motive of his own, and no suspicion of subornation can be fairly entertaiaed; the cause, in other respects, should be at Eberty to stand or fall upon its general merits, without being affected by the peculiar objection ; in the same manner as a series of reasoniag, in itself perfect and complete, is not affected by the coUateral'addition of an untenable argument " The conflict of opposite witnesses is the grand source of forensic altercation. In adverting to the circumstances which influence the credit of witnesses individually or collectively, I have necessarily had occasion to mention their opposition. Without going through the particulars again, it will be sufflcieint generally to observe, that whatever principles of reasoning are correct and proper, when examining the veracity or accuracy of an individual witness or a number of witnesses uncoiitradicted, become more peeuHarly important in determining the balance of credit, with respect to veracity, or the superior degree of accuracy, upon matters of judgment and observation, in oases of conflict and opposition. The general ground of credit, founded upon the presumption that a witness speaks with truth and accuracy, is destroyed when the respective assertions are in opposition to each other, and therefore cannot both be true. Whatever, there- fore, may establish or diminish the confidence in a witness, whose testimony is uncontradicted, will determine the ptefetenoe in cases of. opposition; but the respective grounds of assent or dis- credit are sometimes so equally balanced, that the mind cannot, with satisfaction, pronounce a judgment between them ; and aU that can be recommended is a cahn, patient, and anxious inves- tigation. Where the possibility of mistake on the one side is contrasted with the imputation of perjury on the other, and there are no collateral circumstances to fix the determination, there can be no doubt but that a casual error is to be deemed more probable than a willful misrepre- sentation. When the judgment, after every exertion, is reduced to the necessity of deciding, that on the one side or the other, there has been an intentional falsehood, and no satisfactory reasons occur for fixing the superiority of credit ; the last resource is to obliterate wholly the conflicting testimony, , and to detei'mine upon the want of a preponderance in proof, according to the rules which inust have prevailed in the total absence of it. The restUt of an investigation of evidence will, after the most enlightened and painful research, be in many cases unfortunately at variance with the actual truth, but in proportion to the dangers of error inherent in the very frame and nature of the subject, should be care and anxiety exercised in the avoidance of such error as may proceed from an excess of confidence on the one hand or of caution on the other ; and although that cars and anxiety will often fail in their particular application, the perfection of human precaution will be attained, if they are so conducted that, according to the principles of reason and experience, they may be expected In general to succeed. " It is said, that if a witness deposes falsely in any part of his testimony, the whole of it is to be Ejected; and this is certainly coirect so far as the falsehood supposes the guilt of perjuiy, the ground of credit being there destroyed ; but if nothing can be imputed to the witness but error, inaccuracy or embarrassment ; if there does not appear to be a real intention to deceive or mis- represent ; neither the objection nor the reason for it apphes. The argument is sometimes urged with considerable vehemence, that a party who rehesupon the testimony of a witness, must take it all together, and cannot rely upon the one part and reject the other ; whereas there is no inoon- ■siatenoy In asserting the general veracity of a narrative, and contending for the inaccuracy of some of its incidental particulars ; much less is a party to be driven from his reliance upon the matters of fact related by a witness, because he contends that the witness Is ill-founded in his reasonings and inferences d^dtaoed from them, as I have endeavored to illustrate in a preceding part of the present SeotiO'n." 2 BV. POth. 236 to 266. SEC. II.] Relation of Witness to Pwrty. 731 part of the rules of evidence is founded upon presumptions ; and the sub- ject of the present chapter receives illustration from nearly every other chapter of the present work. It detracts nothing from the above remarks of Sir "William D. Evans, to say they were sug- gested by several passages of the famous article de iesiibus, Lib. 22, in the Pandects; which, if the English reader be desirous to see at large, he may consult 2 Strahan's Dom. b. 3, tit. 6, § 3, and particularly art. 8, 9, 10, 11, 12 and 15, of the section cited. Mr. Evans is the first consider- able contributor, in this kind, to our law of evidence ; and seems happily to have selected the two departments where our usual books of authority were before quite deficient ; we mean cir- cumstantial evidence (in respect to which we have often cited him in previous notes), and the credibility of witnesses. These are perhaps the only departments in which free discussion, in a measure independent of judicial authority, could at this day be rendered practically useful. In these titles, while, with regard to some particulars, adjudged cases may have settled the law ; yet others appear to be without the reach of such cases; thus rendering the private discussions of able and experienced professional gentlemen, not only acceptable, but necessary. Mr. Starkie, in his late Treatise on Evidence, entertained the same view of this subject as Mr. Evans; and beside introducing the remarks of the latter under a somewhat different dress and arrangement, has superadded several important suggestions and iUustrations. Among others, he has enforced Mr. Evans' distinction between the credibility of witnesses holding different interests in society, by their different sense of temporal consequences. Although this argument be sufficiently obvi- ous, and often practically adopted by jurors, it is satisfactory at least, to see it take the form of authority. The amount of the argument is, that while the moral obUgation of an oath may be wjuaJly strong in different ranks, the temporal punishment of perjury, or the injury consequent upon mere detection or suspicion that the witness had violated or discolored the truth, would be looked to by different persons with very different degrees of apprehension. The oases put by Mr. Starki© are those of the sohoitor or attorney compared with the common laborer. 3 Stark. Ev. 520, note. He very properly suggests, that where the witness is called to remove an impu- tation upon himself, the argument in favor of credibility might then be strongest for the wit- nesses of inferior rank. Id. A difference of statement between the witness's testimony on the stand, and on previous occa- sions, his connection with the party by the ties of consanguinity, affinity, friendship, or in fee way of trade, profession or membership of any description, are obvious suggestions in consider- ing a conflict of testimony. So an interest in a similar question, or expectation of future gain, ill win towards the party, Ac. See 3 Stark. Ev. 520, 521. lU will not only against the party, but even the indorser of the party (Merrills v. Law, 9 Cowen, 95) ; or evidence that the party had bought the witness's real property, at bis request (Cameron v. Montgomery, IS Serg. ■&, Rawle, 132), are instances to show what slight circumstances of suspicion may be sometimes inquired of from the witness to show the state of his mind. Indeed it wiU be seen by our quotations, that the circumstances bearing with greater or less weight upon questions of abstract or relative credibility, are so infinitely diversified as to defy enumeration. Two witnesses are brought upon the stand, the one to impeach and the other to sustain the general character of a third, the firat having had cause for hostile feehng, and the other being free from the influence of any ea<4i motive, and indifferent in other respects, would speak with very different effect to the mind of a jury. How readily, in such a, case, would jurors apply the above precautions of Mr. Evans against receiving with implicit confidence, the mere opinion of a prejudiced witness. See Newell V. Wright, 8 Conn. Rep. 322. It is almost unnecessary to observe that the rules for trying the credibility of witftesses, hold equally in respect to the proof of circumstances, as where they speak directly to the feet in issue. 782 Of the Relevancy of Presumptive Proofs. [CH. X. SECTION III. Of the Relevancy of Presumptive Proofs ; and of the Rule which Confines Evidence to the Points in Issue. With respect to presumptions which are too remote to admit of any reasonable direction to a jury in regard to the issue which they have to try, a very nice exercise of discretion often devolves upon the judge.(l) It is his duty to confine the evidence to the points in issue, that the atten- tion of juries may not be distracted, nor the public time needlessly con- sumed ; but in deciding that the evidence of any particular circumstance is not receivable upon this ground, he must impliedly determine, that no presumption to^be drawn from that circumstance ought properly to have an effect upon the minds of the jury.(2) (1) Note 195. — The court always protect the jury from irrelevant testimony, by excluding it, on objection, in the same manner as they shut out other incompetent proof. Hart v. Newland, 3 Hawks, 122, 123; "Winlook v. Hardy, 4 Litt. 272 ; SterMngv. Luckett, 7 Mart. Lou. Rep. (N. S.) 198. But you are not bound to do this before the witness is sworn. If he be, therefore, pre- cluded his oath for such a refusal, and not by reason of personal incompetency, it will be error. Force v. Smith, 1 Dana, 151. K evidence be irrelevant at the time it is offered, it is not error to reject it because other evi- dence may afterwards be given, in connection with which it would become relevant. If it would be relevant, in conjunction with other facts, it should be proposed in connection with those facts, and an offer to follow the evidence proposed, with proof of those facts at a proper time. Weid- ler V. The Farmers' Bank of Lancaster, 11 Serg. & Rawle, 134. And counsel are bound, on the requisition of the court, to state particularly the substance of the evidence they propose to adduce ; and if they refuse, or state evasively or in general terms merely, the proposed witnesses or other testimony may be rejected. Eoy v. Targee, 7 Wend. 359. Thus, where in debt on recognizance, plea release and replication fraud, the plaintiflf proposed to prove that the release was obtained by the promise of another to pay certain money, which had not been done, and claimed to avoid the release because thus obtained on -■ promise violated. The testimony being excluded, the plaintiff yet produced a witness, when the court demanded that the purpose of producing the witness should be stated in writing. The same facts were then offered again, with the addition that such procurement of the release was by the fraud, contrivance, false representation, &c., of the promisor. This offer was overruled, because the party did not offer to prove any spedfc acts of fraud beyond what he at first proposed. On error brought, the decision was sustained ; and per Rogers, J. : "If this can be done, the decision of the court may at any time be avoided by the use of general terms ; and wliich do not enable them to judge of the relevancy of the testimony, which is their exclusive province.'' Se admitted that where a witness had refused to disclose what he knew, counsel might be indulged in a general statement. Commonwealth v. Brenneman, 1 Rawle, 311, 316, 317. And see, as to such discretion, per Nelson, J., in 1 Wend. 363. Yet, evidence proposed cannot be rejected because it is imaginable that something more may be necessary in connection. Thus, where the plaintiff, a black, in Louisiana, to prove her freedom, offered a deed 6f emancipation executed in Ohio; held, that this could not be rejected because "it was incumbent on her to prove the formalities (if any such there were) required by the laws of Ohio in emancipating slaves." Hawkins v. Van Wiokle, 6 Mart. Lou. Rep. 418. (2) In some instances, judges have drawn the line as to the length of time after a theft, which may render the possession of stolen goods relevant. Anon., 2 C. & P. 459. In Manu v. Lang (3 A. k E. 705), all the judges appear to have thought certain evidence admissible, though several of them appear to have considered the presumption arising from it of the weakest description. SEC. III.] Evidence to he confined to Points in Issue. 733 Note 196. — That proof must not vary from the issue, will be more fully illustrated in the notes to the twelfth chapter. A few oases only, which do not range themselves in any particular order, shall here be given. B^ replying to issue, the plaintiff admits the vaUdity of the plea ; and though it be bad, he cannot object to proof under it. Myer v. M'Lean, 1 John. Eep. 509. Notice, instead of a special plea, of prescription to fish adjoining the locns in quo, and of using and occupying the shore for that purpose, wUl not warrant evidence of a prescription to erect huts on the shore for the purpose of fishing. Cortelyou v. Tan Brunt, 2 John. Rep. SST. Where notice of special matter (under the statute, 1 K L. New York, 515, § 1), was given in- stead of a plea, held that the plaintiff might reply by evidence, and the defendant rejoin in evi- dence, any matter possibly admissible in pleading ; e. g. on notice of son assault, the plaintiff might prove molliier mamus, and the defendant rejoin in his proof any matter which, if the plead- ings had been special, could have been pleaded. CoUier v. Moulton, 1 John. Eep. 109. In an action on a bond conditioned for the faithful performance of an agent, a replication that he had money which he refused to account for in 1822, and a rejoinder that he had not, does not admit proof that the agency ceased in 1816. The rejoinder should have in terms averred the termination of the agency at that time. Boston Hat Manufactory v. Messinger, 2 Pick. 223. In an action on a contract to deUver goods, the plaintiff cannot show that, after they were de- livered to him, the defendant fraudulently took them away, and substituted others. Such evi- dence is out of the issue. Gilpins v. Con|Sequa, 1 Pet. 0. C. Rep. 85, 88 ; S. C, 3 "Wash. C. 0. Eep. 184, 187. Matter excusing performance is not admissible under a plea of covenants performed. Poague V. Richardson, Litt. Sel. Gas. 134, 135, 136 ; Holt v. Grume, Litt. Sel. Gas, 499, 500, S. P. A fact not alleged on one side, though it be denied by the other, is not in issue, and need not be proved. Thus, in covenant, the plaintiff claimed $100 for fixing the defendant's miU so that it would saw so much, and averred that he had so fixed it. On oyer, the covenant was so that, in the opinion of a good sawyer agreed on, it would saw so much ; and the defendant denied that, in the opinion of a good sawyer so agreed on, it would saw so much. Held sufficient to prove that it would in truth saw so much, for that satisfied the plaintiff's allegation ; and the defendant had denied a fact not alleged. The question would have been different on demurrer or motion in arrest. Fry v. "WhitingUl, Litt. Sel. Gas. 181. On an issue whether part of a testator's estate is in the hands of an executor, evidence that he is a creditor of his co-executor, and that he became so by transferring that part of the estate in question to his co-executor, is relevant and admissible. G-albreath v. Rife, 2 Rawle, 144. Trespass qttare cl/msum fregit. Plea, liberwm tenementum of the defendant. Replication, a de- mise from the defendant to the plaintiff from April 23d, 1821, for one year, and thenceforward from year to year. Proof, that the plaintiff paid the defendant rent. Abbott, G. J. : "This shows a demise ; but it may be very different from the one laid. It might be proof of a demise for twenty-one years, as well as of the demise laid. PhiUips v. Mosely et al., 1 Garr. & Payne, 262. In actions by bill in the King's Bench, the defendant may, under the general issue, give in evidence matter of defence which occurred between the issuing of the lattUat and before declara- tion, and such matter (e. g. accord and satisfaction) is an answer to the action For the purposes of justice, the declaration is considered the commencement of the action. "Worswick v. Beswick 10 Barn. & Cress. &IQ. Note. This decision was in an action of trover; and seems to apply to those cases only where the matter is ordinarily admissible under the general issue ; not where from the nature of the action, it must be pleaded. Circumstances of mere alleviation or aggravation are irrelevant upon the trial. They are totally immaterial to the verdict ; because they do not prevent or conclude the jury's finding for or against the defendant. They may be made use of when the judgment is given, to increase or lessen the punishment. Circumstances which amount to a lawful excuse or justification are proper upon the trial, and can only be used there. Rex v. Shipley, 4 Poug. 73, 163, per Lord Mansfield, C. J. ; Id. 177, 178, per Willes, J. The cases do not agree upon the question whether irrelevant testimony being given on one side, for the assumed purpose of proving a fact, wUl warrant other testimony in reply to that so given, either to repel it directly, or touching the fact upon which it professes to bear. The result would seem to be, that it is discretionary with the court to hear or reject the evidence in reply. 734 Of the Relevancy of Presumptive Proofs. [OH. X. In many cases, and indeed all, the expense of time must be useless; and. may, by consent of parties be made endless, if the court have no power to interfere. On a petition for freedom, the defendant gave in evidence, without objection, hearsay and rep- utation against the freedom of the petitioner. The latter then offered the same kind of evidence in favor of his freedom; to which the defendant objected. The court held the objection well taken ■ saying that improper evidence on one side will not justify its introduction on the other, if objected to. The first would have been rejected, had an objection been made. The doctrine contended for would lead to endless confusion, and destroy all the rules of evidence. Walkup v. Pratt, 5 Har. & John. 51, 56; Stringer v. Lessee of Young, 3 Peters' Rep. 336, 337, S. P.; Samuel v. Bond, Litt. Sel. Cas. 158, 159, S. P. The plaintiffs in ejectment proved a grant of the tract claimed by them, and then that the dcr fendauts had made entries ip respect to the tract, having notice of the plaintiffs' claim under the grant. Then the defendants offered to prove entries in respect to the same tract, made by third persons, since the gTant, in order to show the general opinion that the land granted was vacant. Held inadmissible because irrelevant, as not affecting the grant ; nor was it admissible to give ir- relevant testimony, because it was an answer to other irrelevant testimony. Stringer v. Young, 3 Pet. Rep, 336, 337. Yet, in several instances, such testimony being received, this was held no objection, on error, or motion for a new trial. In assumpsit against several partners, one of them introduced a letter of his copartner to the plaintiff, which it was insisted made against him. In consequence of this, the plaintiff offered to show that the same copartner, in answer to certain interrogatories, had contradicted what he said in the letter. This was objected to by the defendant who produced the letter ; but it was re- ceived. Held no error, as the defendant had himself laid the foundation for it. Eiggs v. Lind- say, 7 Cranch, 500, 503, 504. So, though character be not in issue, if the party introduce evidence, to support his character ; held, that for that reason the other party might give evidence in reply. Grannis v. Brandon, 5 Day, 260. "Where the plaintiffs offered evidence of the credi- bility of one of their witnesses, the defendants were allowed to ask another, if the plaintiffs' wit- ness had not been guilty of larceny. The testimony on both sides was illegal ; but as the plain- tiffs resorted to that mode in support of credibility, held, that they could not complain that it was rebutted in the same way. Prevost v. Simeon, 4 Miller's Lou. Rep. 472. In trespass, the plaintiff proved that he bought at the defendant's store a pipe of French brandy, which being left with the defendant a few days, he took out forty gallons and substituted American brandy, in the presence of his partner. The partner caUed for the defendant contra- dicted this. He was asked by the plaintiff's counsel whether he or his partner had in any in- stance adulterated brandy or spirits. The defendant made no objection, and the witness answered, and the counsel then, on both sides, put many questions on the point. The next morning, the counsel for the plaintiff repeated the question as to particular cases, and inquired of sales to par- ticular persons then in court. The defendant's counsel then objected, that the inquiry was not relevant ; but the judge allowed the questions to be put, and required them to be answered. The court, on motion for a new trial, said there was no objection made to entering on the in- quiry ; and it might, therefore, under the circumstances, be pursued. Young v. Mason, 8 Pick. 551. And the court held, in terms, that though you call for a paper from the other side as evi- dence, and peruse it, you need not read it unless it be material, though the other side call on you to do so. "Wilson v. Bowie, 1 Carr. & Payne, 8. If a witness be examined by both pai'ties with- out objection, as to matter irrelevant, one party cannot object to a farther examination on the same subject. Id, ; Young v. Mason, 8 Pick. 551. Again ; on proof that one made a contract for another, though this was immaterial, yet held that it was not improper to rebut the proof by other testimony. Grafton Bank v. Woodward, 5 N. H. Hop. 301. "What passed at a former trial in ejectment between other parties being given in evidence by one side, though doubtful wl^ether it was admissible, the opposite party was allowed to show other evidence given on the same trial. Doe ox dem. Lloyd v. Passingham, 2 Oarr. & Payne, 410. In false imprisonment on s^9- pioion, Oranshaw, J., said, if the defendant could not primarily impeach the plaintiff's general character to mitigate damages, he might dp it in reply to evidence in its support. Eqgf rs v. Wilson, 1 Alab. Rep. 407, 410. After a questiou has been repeatedly asked and answered, without objection, in the cowse of SEC. III.] Evidence to he confined to Points in Issue. 735 a trial, it is too late to object to its admissibility, on the ground that the answer is, in itself, inad- missible. M'Kee v. Nelson, 4 Cowen'a Rep. 355, 351. And evidence, though it be entirely out of the issue, if not objected to at the time, for variance, is no ground of objection afterwards. M'Mioken v. Brown, 6 Mart. Lou. Rep. (N. S.) 85. Both the oases in the text, and these which follow, it is presumed must be taken with the qualifications mentioned cmfe, in note 183, of these notes. On trial of an indictment for shop-breaking and stealing from the, shop, proof that part of the goods stolen was found in possession of the prisoner, is prima facie evidence that he is guilty of the whole charge. Commonwealth v. Millard, 1 Mass. Rep. 6. So in a case of common larceny, the jury may infer a stealing of the whole, from a possession of part. State v. Jenkins, 1 Tyl. 3'Jl, 379 ; ColUns' Case, 4 C. H. Reo. 139, before Golden, Mayor, N. Y. Gen. Sessions, Oct. 1819 ; per Golden, mayor, in Ball's Case, 4 C. H. Rec. 118, S. P. This was denied of a burglary, at N. T. Gen. Sessions, in People v. Frazier, 2 Wheel. Cr. Cas. 55 ; but, it is presumed, hastily. The text, it wiU be perceived, here brings us to consider the state of the issue, and- whether the proposed evidence bears upon it. This, says the text, ante, must be tested by considering the view with which it is offered ; for evidence may be admissible in one point of view, though not in another. Per Lord Tenterden, C. J. in Taylor v. WiUans, 2 Barn. & Adolph. 833, S. P. In the instance given by the text,. of Rex v. Inhabitants of Northamptonshire, we have an indict- ment against a county for not repairing a public bridge. The plea of not guilty put in issue not only the question of repair, but if it had turned out that the bridge were the property of an indi- vidual, the county would have been under no duty, and had no right to repair. Acts of exclu- sive possession by individuals tend to determine this question, and the quahty of their acts have a slight tendency the same way. It is a, very little circumstance ; but yet, having the least weight, it is admissible in connection with others proposed, or which may readily be conceived ; ajid, in the general conffiot of circumstances, may determine the question. Have the use of the public and individuals been equal ? Has the pubUo made repairs, and to what extent ? and, on the other hand, what has been the extent of the individual repairs ? for what time 1 and if the latter greatly exceed the former, stiB they may be of an equivocal character. If substantial, and such as the public would require, they might be construed as a gratuity from individuals in aid of the pubUc, though partly for their private benefit. But if merely ornamental, there is less probability of that being so, though, after all, the difference may be very shght, perhaps barely perceptible. The general issue may thus, in many instances, present a very broad field of inquiry, and open an extensive range of circumstantial- evidence. In another case, which was an action for procuring a malicious indictment for perjury, those conducting the examination before the justice objected to the now plaintiff being holden to baU. The objection was obviated by presenting a letter, supposed to have been written by the lord chief justice, stating that it was a bailable case. The fact of so presentmg this supposed, letter . was received as proof on the now trial, without proving its genuineness. This was excepted to. An affidavit of the now defendant's agent to prosecute for the perjury was also received, statiiig that he had interfered to discourage one C. from becoming bail for the now plaintiff. This was excepted to. The now defendant appeared, but was not sworn before the petty jury on the trial of the perjury, which circumstance was now left to the jury ; and it was put to them to say whether this non-appearance, as a witness, arose from a consciousness that he had no evidence to give in support of the indictment, or from some other cause. This was also excepted to. The cause was tried in the Common Pleas. On error, by the defendant, the chief justice (Lord Ten- terden) confirms the suggestion in the text, that " in deciding the question whether certain evi- dence be admissible or not, we must look at the object for which it is produced, and the point it is intended to estabUsh ; for it may be admissible for one purpose, and not for another." He then shows the drift of exhibiting his supposed letter, and the agent's affidavit. The latter was to prove that some measures were taken to prevent persons from becoming bail ; and being made as the now defendant's agent in the course of his business, was receivable as an adlnission. The object of the letter was to show that the magistrate refused to take bail till the letter was pro- duced; no matter whether the letter was genuine or not. The court also held that the question of motive in not appearing was properly left to the jury, the want of probable cause being a mixed question of law and fact, under the circumstances of this case. Taylor v. WiUans, 2 Bam. & Adolph. 833. 736 Of the Relevancy of Presumptive Proofs. [CH. X. Circumstances, not only minute, but remote in time and place, may be received as material. On trial of an indictment for murder committed by dirking, it appeared that a dirk without a cap had been found secreted near the place of the murder ; and the cap of a dirk engraved J. H. was handed to a witness, by a negro, a mfle and a half from the place ; but how he came by it, no one could tell. The handle was engraved with the letters J. H. ; and it appeared that, some sixteen or seventeen years before, a witness purchased a dirk, with this engraving, for James Hickman, the half-brother of the prisoner; that Hickman since died; and the prisoner had admitted that a dirk was the only part of H.'a property he had received. The witness, who heard him make this admission, saw a dirk in his hand with J. H. engraved on the handle ; but could no farther identify it with the one now produced. The dirk found secreted was identified by the finder, from its general appearance, with the one now produced ; and the cap produced by the negro apparently fitted the handle. The prisoner had, before the murder, lent a dirk, not now identified, which was returned to him before the murder was committed. There was no other proof that the prisoner had ever been at or near the place of the murder. These circum- stances were allowed to go the jury as evidence that the dirk found belonged to the prisoner ; and they were told that, if they had no doubt of its being his property, then the prisoner's dirk so found made one circumstance to be weighed with others. This was holden well on error. Men- dum V. The Commonwealth, 6 Rand. '704, 711 — 113. Now it is obvious how perfectly aUght and utterly inconclusive any one, or any two or three, of these circumstances must have been. Yet, all being combined, the result of the trial (a verdict of guilty) shows that the jury felt safe in act- ing upon them, as leaving no doubt. See per Hosmer, C. J., in State of Connecticut v. Watkins, 6 Conn. Rep. 53; S. C, infra. "It is frequently difficult to ascertain, a priori, whether proof of a particular fact offered in evidence win or wUl not become material ; and, in such cases, it is the usual practice of the court to give credit to the assertion of the counsel who tenders such evidence, that the fact will turn out to be material." 4 Stark. Ev. 381. Thus, a deed to the lessor of the plaintiff, or one under whom he claims, may be rejected as irrelevant, unless title first be shown in the grantor, or at least an offer made to foUow it up with proof of his title. Winlock v. Hardy, 4 Litt. 272, 273. So of an deeds having no apparent connection with the matter in issue. Harris v. Paynes, 5 Litt. 105, 107, 108. Again ; in an action on a covenant, to save from all judgments in favor of P. and B. against the owners of the steamboat H., recovered for the price of the boat, a record of judg- ment on notes against the covenantee in favor of P. and B., was held not relevant, thus nakedly presented. It should have been accompanied with" proof aliunde, that the notes were given for the price of the boat by the owners. The judgment being founded on the mere naked proof of the record, for aught that appeared iu the bill of exceptions, was reversed on error. Wilson's Adm'rs v. Boweu, 5 Monroe, 33. The court must be enabled, on error, to see the relevancy. To support a plea of title, the defendant offered in evidence the ■ declarations of a former grantor, which were admitted, though the plaintiff objected and took a biU of exceptions. But it did not appear whether, the declarations were relevant or not. Held, they were inadmissible ; and the judgment was reversed. Clark v. Beach, 6 Conn. Rep. 142. Though a matter may possibly be relevant, yet the party must show how, otherwise it cannot be received ; and the court wUl not on error reverse a judgment on account of its rejection, unless the relevancy appear affirmatively. Thus where, on a question of forging a bond in 1807, a person, not the alleged forger, said, speak- ing of the bond, some thirteen years after its date, "my pen has not forgot to write," which might by some possibility have been made relevant ; yet, this not appearing iiliirmatively on the bin of exceptions, the court refused to hold it so. Rowt's Adm'r v. Kile's Adm'r, 1 Leigh's Rep. 216, 223, 224. And see Turner v. Fendall, infra. So, where a book of accounts of one party was offered against another to prove a debt, without other proof appearing, by the bill of excep- tions, to have been proposed, verifying the book, held that the book was properly rejected. The People V. Genung, 11 Wend. 18, 21. See an instance of a connected statement in a biU of exceptions. Benham v. Gary, 11 Wend. 83. It is different, however, where the proof tends, apparently in its own nature, to make out the case, though the residue be not offered ; as where it lay with the plaintiff to show two facts ; that certain posts and rails were erected ; and that the defendant made the erection ; and the plaintiff offered to show that they were erected. This being overruled, the judgment was, there, fore, reversed. Bartlett v. Evarts, 8 Conn. Rep. 523. But see Weidler v. The Farmers' Bank of SEC. III.] Evidence to he confined to Points in Issue. 737 Lancaster, infra. Where the copy of a deed appeared by the bill of , exceptions to have been received, after objection, and, the bill did not profess to detail the whole evidence, the covirt pre- sumed that other evidence was given, making out a good title indepeindent of the deed ; and said the reception of the copy or evidence was, therefore, no cause of reversal, whether properly suffered or not. Hodges v. Crutcher, 1 J. J. Marsh. 504. The practical mode of introducing connected or consecutive proofs at the trial, seems to have been pointed out with the greatest perspicuity by the Supreme Court of Pennsylvania. The .de- fendants sold to the plaintiff a farm, under an execution, against A., the title to- which failed, and the plaintiff sued for the money advanced ; and proposed to show that the deputy sheriff assured him that the title was good. This was overruled. On error, it was insisted on as proper: for perhaps the plaintiff wooic? have shown that the deputy had authority from the defendants to make the representation; and that they knew it to be false. But the court, by Gibson, J., said, 1. The deputy was not, like an auctioneer, the agent of the parties, but of the law ; and as such, had no authority to bind the defendants, by any representation, without their express authority. None was shown. "The evidence, therefore, as it was offered, presented facts which, isolated ■as they stand in the bill of exceptions, were altogether irrelevant. But the plaintiff contends that this may have been only a part of the chain of his evidence ; and that what was deficient might afterwards have been suppUed. If this were admitted, no court could, vrathout error, ever reject evidence for irrelevancy, as there is no fact so entirely irrelevant as to be incapable of being connected with the question, however remotely, by the intervention of a chain of possible circumstances. But the question is, how did the matter stand as it was proposed to the court ? If it was altogether irrelevant, the court might reject it, although it might not perhaps be error ■to admit it. If it would be relevant, when taken in connection vfith other facts, it ought to be proposed in connection with those facts ; and an offer to follow the evidence proposed, Tyi^h proof of those facts at the proper times. But the court is not bound to spend its time in an inquiry which, from the showing of the party, can produce no possible results. .Dislocated cir- cumstances may doubtless be given in evidence, particularly ifthere.be no objection to the order of time ; but the proposal of the evidence must contain in itself, by reference to something that has preceded it, or that is to follow, information of the manner in which it is to be .legitimately operative." Weidler v. Farmers' Bank of Lancaster, 11 Serg. & Ravvle, 139, 140. We propose a few more cases, illustrative of the above reasoning. On .trial of A. for the murder of H., whom he had hired to murder another, it was held pertinent to prove that H. had murdered the other, it being opened by the counsel fpr the prosecution that A. murdered H. to prevent his (A.'s) detection. Rex v. Clowes, 4 Carr. .& Payne,. 221. On a question whether a bidder had notice of an incumbrance, the auctioneer's "proclamation .of the incumbrance, before the bids began, is not admissible, per se. To make it so, proof must be given that it was so made that the bidder could not fail to hear it. Porter v. Liddle, 7 Mart. Lou. Hep. 23. In trover for flour, to prove that the plaintiff purchased it from a vendee of one for whom the defendant was wharfinger ; and that such purchase of the plaintiff was with the fraudulent intent to deprive the defendant of his right to demand payment of his wliarfage before the goods were dehvered, it was offered to show that the vendee was insolvent ; but the defendant's counsel admitting that the facts going to show the insolvency could not be brought home to the knowledge of the plain- tiff, the court refused to receive the offered proof. Hohday v. Mann, 2 Carr. & -Payne, 509. These offers of counsel may, many times, -without any imputation of unfairness,, auticipatei a .greater number of circumstances, or more strength in the supposed proof of tliem, or ,in, their combined effect, than the evidence ultimately presents; in consequence of which the case is heard upon proofs ; and the question thus raised whether, on the whole, they shall be ■sub- mitted to, or withdra-wn from the jury, as competent or incompetent matter of consideration. Thus,, to charge C, an indorser, notice was left at his son's store, kept in a separate apartment of C's house ; but tlaeir was no interior communication between them. C. usually transactedhis business in another part of the town, but Was often .abput his son's store ; and notices or letters, when left at the store, had been sent by .the bearer to, or delivered by the son at C's place of . business, if seen or recollected by him. Now, this was Ijeld insufficient prqof of notice to C, yet the evidence was received. Had it been followed out by C's admission that a notice, left at his son's, never failed of reaching him immediately, or that the nptice was immediately dis- patched by the son, or various other facts that may be conceived, the notice would have been Vol. I. 47 788 Of the Eehvancy of Presumptive Proofs. [CH. X made out. But it stopped short, and the court, by ■Washington, J., very justly remarked, that " Presumptions, from evidence given in a cause, of the existence of particular facts are, in many, if not in all cases, mixed questions of law and fact. If the evidence he irrelevant to the fact insisted upon, or be such as cannot fairly warrant a jury in presuming it, the court is so far from being bound to instruct them that they are at liberty to presume it, that they would err in giving such instruction ; for why give it when it is manifest that if the jury should find their verdict upon the fact so deduced, it would be the duty of the court to set it aside, and to direct a re-trial of the cause?" ' United States Bank v. Corcoran, 2 Peters' Rep. 121, 131, 133. The learned judge then adverts to the case of Ireland v. Kip (11 John. Rep. 231 ; S. C, 10 Id. 490) ; as one presenting much stronger circumstances ; as strong as they could well be. In that case, the de- fendant had directed the letter carrier to leave all letters for him at a certain house in Frankfort street ; the carrier called at the post-office three or four times every day, and took out and dehv- ered accordingly all letters left there ; and the defendant usually sent or called every day at that house for his letters. The refusal in the latter case to submit the evidence to the jury, most probably is referable to the strict rule, that the notice to indorsers, resident in the city where aU the parties reside, must be personal, or something equivalent, as by leaving it at the indor- ser's dwelling-house, or place of business, if absent. Id. By relying on the settled rule in that particular case, the indorser might have been more negligent of calhng at the place appointed for his letters in general. Ho had no reason to suppose the notice-would be left there. See per Spencer, X, 11 John. Rep. 232, in S. C. Where counsel propose a chain of evidence, the whole of which would be relevant, and the court receives the evidence as far as it goes, but it stops short of the proposition, the course then is, not to suffer counsel to argue upon it to the jury, but withdraw it entirely from their consider- ation. Thus, where the defendant insisted that the single biU on which he was sued was to have been discharged by the surplus avails of certain bonds received by the plaintiffs, but which they had lost through negligence, he proved the receipt of the bonds ; but failed to show the agree- ment to apply. The court refused to allow any argument on this imperfect case, and withdrew it from the jury. Stewart v. The Huntingdon Bank, 11 Serg. & Rawle, 267. In the last case, Tilghman, C. J., takes occasion to remark : "It has grown into a habit, within these fewyears, for counsel to propose a chain of evidence, the fli-st links of which depend on those which follow, and would not be supported without them. Now, although gentlemen of honor (and such I take the counsel in this cause to be) would scom to impose on the court, by pledging themselves for what they knew they could not perform, yet it may happen that there may be others who would make no scruple of liberal promises, provided they could smuggle into the jury box a piece of evidence which ought not to have got there. The court should therefore keep a wary eye on proceedings of this kind, and take care to instruct the jury to pay no regard to the evidence which they have heard, whenever the condition on which it was intro- duced is not complied with." Id. 210. In a simple case, like that he was considering, counsel may sometimes faU within the above censure. Oftentimes, however, in opening a chain of evi- dence, they are not so well instructed (nor can they be) as to know its precise extent. None of these difficulties occur where the testimony is obviously Irrelevant in any view. It is then the duty of the court to reject it at once ; as where the plaintiff claimed the value of a slave killed by the defendant's slave, and offered to prove the looks of the latter while the former was in a dying condition. SterUng v. Luckett, T Mart. Lou. Rep. (N. S.) 198. In trials for conspiracies and other offences, involving a great multitude of circumstances, a still more latitudinary course than any of the above, is sometimes necessarily taken ; though it should be avoided, if practicable. Thus, on a trial of an indictment for a conspiracy to obtain merchan- dise, against five persons, letters were offered from one or two respecting the obtaining of mer- chandise generally; they containing no direct proof of a conspiracy, nor was any general conspiracy yet made out. These letters were received on the ground that they might become material in the course of the cause ; although thoir materiality did not yet appear. An order inclosed in a letter was received on the same principle. But a part of the letter which related to a third person not named in the indictment, nor concerned in the matter, was not allowed to be read. In respect to letters received as evidence, but not appealing in the particular stage of the cause to be relevant, the court intimated that the jury could finally judge of the relevancy. SEC III.] Evidence to he confined to Points in Issue. 739 The Commonwealth v. Boyer et al., Reading, Penna., November Gen. Sess. 1823; 2 "WTieel. Cr Cas. 140, 143 to 146. It is scarcely necessary to observe, that though a circumstance be proper as tending to show a particular fact, it is- inadmissible, unless the fact itself be pertinent to the question in issue. Thus, where the sheriff levied money for P. on execution, and then levied on the same money in his own hands, on a fi. fa. against P. ; being sued by P., the sheriff offered oral evidence to show that P. was insolvent, and had taken the insolvent debtor's oath ; but though this might entitle persons other than the plaintiff to the money, it would not necessarily prevent this suit going on in F.'s name. It was therefore held inadmissible, not because the facts offered might not be material to show a right in third persons ; but because that right existing, and being shown, it would not, upon anything appearing, affect the present case. Turner v. Pendall, 1 Cranch, 1)1, 119, 131, 132. The plaintiff may sometimes, by his own course, exclude an inquiry which would otherwise be relevant. He cannot go to the jury on two inconsistent propositions. Thus, where the defendant gave evidence to impeach a note for want of consideration, and the plaintiff proved a pecuniary consideration, which the defendant answered by showing the plaintiff's declaration that the con- sideration was a special agreement; held, that the plaintiff was precluded from insisting on both; but must be confined to vindicate one of his propositions. "WincheU v. Latham, 6 Cowen's Rep. 682, 686, 689. And see Beake's Ex'rs v. BirdsaU, 1 Coxe, 12. And where the plaintiff proved the distinct confessions of the defendant at different times, one of which did, and the other did not support the declaration ; held, that the plaintiff might adopt the first and reject the last con- fession. Hale V. Andrus, 6 Cowen's Rep. 225. -^ The proof may, of course, be relevant to one count of a declaration, and support it, though it .fail as to another. Safford v. Stevens, 2 Wend. 158. But where the defendant was sued in assumpsit as a common carrier (the declaration including the money counts also), for com taken forcibly away by the mob, who left some money with the defendant in pay, the plaintiffs having dosed their case, and the defendant's counsel being stopped by the judge, who expressed an opinion in his favor, the plaintiffs' counsel would then have gone for the money, and proposed to prove its receipt by the defendant. But held too late, after the plaintiffs had closed their case (per Lord Kenyon, C. J.), Le Blanc, J„ saying the judge might prevent going into a new case, in his dis- ■ cretion, at that stage of the cause. Edwards v. Sherratt, 1 East, 604, 611, 614. It is proper also to observe, that, where the right exists, as it does in most common-law countries, to interpose in conjunction with the plea of the general issue, special pleas in bar, or (in some states) a special notice of the matter in bar; neither of these wiU, in any way, deprive- the defendant of every latitude he would enjoy under the general issue. It follows that though,, by reason of variance or any other cause, the evidence offered be not receivable as being specially introduced, it may yet come in under the general issue, if admissible according to the abstract nature of that plea. Levy v. Gadsby, 3 Cranch, 180, 186 ; Smith v. Gregory, 8 Cow. Rep. 114; Pulton Bank v. Stafford, 2 Wend. 483 ; Bradley v. Pield, 3 Wend. 2?2. Thus, in setting out usury in a note (Smith v. Gregory, Fulton Bank v. Stafford, and Levy v. Gadsby, ut swpra), or an insolyent's discharge (Bradley v. Pield, ut supra), a variance between the plea or notice and the case made in proof, has been held not to preclude its admission under the general issue. It should also be remembered that under the head of relevancy, the question is not whether the evidence offered be the most convincing ; but whether it tends at all to illustrate the ques- tion. Holt V. Crume, LittTSel. Cas. 499, 500. Again ; to make testimony relevant, it is not necessary that it should be essential. Though cumulative, and supererogatory, it may be received. Thus, in proving a sheriff's sale of land on execution, the conditions of sale need not be shown. Yet if they are shown, though objected to, this is not error; for the conditions are a part of the res gestce. Arnold v. Gorr, 1 Rawle, 223, 225. Yet it may be rejected as unnecessary. The conversations leading to a written contract, which is fuUy in evidence, were held rejectionable for that reason. Gilpins v. Consequa, 1 Pet. C. C. Rep. 85, 81 ; S. C, 3 Wash. C. C. Rep. 184, 188, S. P. The following oases -will show more particularly how testimony may be admissible for one purpose, though not for another ; although evidence of unliquidated damages be not admissible by way of defalcation (set-off) (Kachlin v. Mulhallon, 2 DaU. 237 ; S. C, 1 Yeates, 511 ; Cor- 740 Of the Behvancy of PreswmpUve Proofs. [CH. X. nell V. Green, 10 Serg. & Rawle, 14; Gogel v. Jaooby, 5 Serg. & Rawle, 117); jet in another view it may be relevant; and acts of misfeasance or malfeasance may be given in evidence, if they are immediately connected with the plaintiff's cause of action ; not as a get-off; but to defeat partially or wholly the plaintiff's claiiBa by impeaching it ; e.'g.,ya. an action for work done, that it was done badly. Gogel v. Jacoby, 5 Serg. & Rawle, 117, 122. So in an actibiifor the priee of millstones, 'tbat the plaintiff warranted them to be good, whereas they were Bad. Steigleman ■ V. Jeffries, 1 Serg. & Rawle, 477, cited 5 Serg. & Rawle, 122. An account of sales being offered by the plaintiff, the truth of which was material, the defendant shall not be allowed to prove another account of the same sales, by the same person, unless he avows an intention to impeach the first. Gilpins v. Consequa, 1 Pet. 0. 0. Rep. 85, 89; S. C, 3 "Wash. C. C. Rep. 184, 188, S. P. In assault and battery, a judgment obtained by the defehdant against the pldntiff, is per- tinent to show the amount of the defendant's property; but is inadmissible to shdw his oppres- sive conduct towards the plaintiff Jacoby v. Guier, 6 SeTg. & Rawle, 399. A sealed instrument, though void, inay yet be received to show the terms of the contract, in an action of assumpsit, the parties having acted under the instrument. Gouvemeur v. Elliott, 2 HaU's Rep.N. T. S.C.211. We shall close this note with some additional sketches of modem case's, tending more fliUy to illustrate the question of relevancy, as depending on the particular object with which the testi- mony is introduced ; or its connection or disconiiection ^th other facts in a necessary chain of proof. See also j30si, notes 197 and 198. First, of cases wherein it will be received. On the question whether G.'s property" was suf- ficient to satisfy a judgment and execution, previous incumbrances on the same property are within the issue, and may be inquired of. Norris v. Badger, 6 Cowen's Rep. 449. That a father ' had presenteid slaves to some of his daughters on their inamages, was held admissible to show his intent on the deUvering a slave to one of his daughters on a subsequent marriage. Smith v. Montgomery's Adm'rs, 5 Monroe, 502, 503. On trial of an indictment for a conspiracy in the abduction and forcible marriage of S. to H., the defendants made a point that she was wilUng; and the commonwealth was allowed to prove in reply, that some months subsequent to the mar- riage, the defendant H. and his brother-in-law, forcibly took and carried her away after She had been released from the custody of H. on haieas corpus; and that she resisted, escaped, wBs retaken, carried twenty mUes, confined and abused. This was objected to as irrelevant ; but admitted, although subsequent to the alleged offence, as going to refute the pretence of willing- ness. RespubUoa V. Hevice, before the Supreme Court of Pennsylv^a, 1796, 3 Wheel. Cr. Cas. 505, 507, 508. Where the defence of a prisoner is insanity, evidence of insanity before theoffence committed is proper, without fli-st proving insanity at the time of its commission. ■ Yance v. The ■ Commonwealth, 2 Virg. Gas. 132. The language a person 'speaks is pertinent in determining his identity ; and where the plaintiff in trover for a negro, described her as being Ango, and speaiing the Angela dialect, the defendant was allowed to prove that she spoke the Caro- mantee also, as one circumstance against her being of the Angola breed, though not conclu- sive, because she might speak both languages. Martin v. Maverick, 1 M'Cord, 24. On an issue whether a demand was made of possession, evidence was held admissible for the defend- ant, that the plaintiff said he had agreed with the defendant to let matters stand till the event of another lawsuit was known. Holt v. Grume, Litt. Sel. Cas. 499, 500. It is relevant, in a question of domicil, to prove the party's conduct, going to manifest his intention, both before and after he has changed his local residence. Richmond v. Vassalborough, 5 Greenl. Rep. 396. On trial of an indictment for knowitigly receiving stolen goods, a general understand- ing between the thief and receiver, that the One should steal and the other receive, is admissible in evidence as to receiving the particular goods. M'Niff's Case, before EndcUfif, Mayor, 1 0. H. Rec. 8. A prisoner, in his examination before a magistrate, is not bound to answer any question ; but if he submits to answer, and answer falsely, the people may produce evidence to disprove the answer ; and it will then be strongly against the prisoner. Goldsby's Case, before Radclifl", Mayor, 1 C. H. Rec. 81; Ball's Case, before Golden, Mayor, 4 C. H. Rec. 157. Testimony arising after, is admissible to explain facts occurring before the commencement of the action. M'Leod v. Johnston, Anth. N.' P. Rep. 16. On a charge for violating a police law (c. g. for delivering flour on board a vessel without inspection), the question is one of inten- tion ; and Kent, C. J., received testimony that the party accused, being sick, ordered his clerk to have the flour in question inspected, which he omitted by mistake. But neglect may be so SEC. III.] Evidence io be covfined to Points in Issue. 741 gross a? to a,moimt to aoriminal inteiit. Sturges v. Maitland, Anth. N. P. Rep. 153. When the question is, whether a sale was iona fide or not, the whol? conduct of the party whose acts are assailed, before and after as weU as at the time of the contract, may be inquired into. Reels v. Knight, 8 Mart. Lou. Rep. (N. S.) 267. In an action for taking judgment in a cause in violation of a contract and settlement between the parties, either party may show his original rights in respect to the subject of the suit ; for so it would better appear whether they were settled. Truett V. Chapin, 4 Hawks, 118. Where the question is to which of two credit was given, the record of a pending suit against the other in favor of the plaintiff, is evidence for the defendant. Head v. Taylor, Litt. SeL Cas. 257, 261, 262. To repel the plamtiff's evidence that he had never obtained any receipt for money, which the defendant had received to pay over for him to his creditor, evidence that he demanded a receipt of the creditor and received a paper as and for a receipt, was held admissible, though the witness knew not what the paper was. Marvin v. Keeler, 5 Conn. Rep. 271. To repel proof that a letter directed to A. was mailed, it is relevant to show that A. never received it. Litchfield v. Farmington, 7 Conn. Rep. 100. On a justifica- tion in trespass for shooting a dog, that he attacked the defendant, and was accustomed to attack people ; the plaintiff gave in evidence, without objection, the quiet habits of the dog. Clerk v, Webster, 1 Carr. & Payne, 104. And proving that the defendant was in a situation whereiu he might, and probably did commit the aUeged trespass, it is relevant to prove that he was in that situation from another motive, e. g., in order to arrest an offender. Prindle, v. Glover, 4 Conn. Rep. 266. Where the question was whether work was performed by the defendant for the plaintiff's according to a written agreement, couched in general terms, c g. to make a drawbridge and its apparatus for the passage of vessels, evidence that these were constructed under the eye and direction of the plaintiffs' agent, was held admissible. Hartford Bridge Company v. Gran- ger, 4 Conn. Rep. 142. On an issue awarded to try whether a bond apd warrant for $460, and a judgment, execution and sale thereon in favor of a son, within a few months after he came of age, against his insolvent father, were not fraudulent as to creditors, the latter offered to prove that, at the sheriff's sale, the son claimed several articles levied on as his own ; thus to infer that he had been paid for his services, for which it was insisted by him the bond was given, by the property so claimed. Held relevant and admissible. Reitenback v. Reitenback, 1 Rawle, 362. On the question of sanity at the time of executing the legal instrument, evidence of the state of the mind before and after, is admissible. Grant v. Thompson, 4 Conn. Rep. 203. On issue upon a forcible entry and detainer, the defendant, having entered peaceably, said to the relator, "it wiU not be well for you if you ever come upon the premises again, by day or by night." Held that this was relevant, and might be left to the jury, from which to find a forcible detainer. People V. Rickert, 8 Cowen's Rep. 226. A witness testified that he had sworn on a former trial, from a memorandum not now present, to the identity of a lottery ticket now produced; and another witness swore that the ticket now produced, was the same as the one produced on the former trial ; and the first witness, on going out and examining his memorandum, returned and said he had no doubt of the identity. The whole was hplden admissible. Barnum v. Barnum, 9 Conn. Rep. 242. On an issue joined on the fair execution of the wiU, between legatees and the widow of the testator, who had be- queathed almost an his estate to persons other than his widow, she offered evidence to show that the win was unfairly obtained, and among other things, proof that she brought her husband almost all his estate so bequeathed, by the marriage. Held admissible, as being relevant to the issue. And the court said that generally, on a question of this kind, the intrinsic evidence of the will itself, arising from the unreasonableness or injustice of its provisions, taking into view the state of the testator's property, family, and the claims of particular individuals, is competent and proper for the consideration of the jury. Patterson v. Patterson, 6 Serg. & Rawle, 55, 56. On trial of an indictment for destroying the prisoner's vessel with intent to prejudice the under- writers, evidence of its value is admissible, as showing inducements to destroy or preserve it. U. States V. Johns, 1 Wash. C. C. Rep. 363. On trial of a prisoner for the murder of his wife, there being no direct evidence against him, his previous adultery was allowed in evidence, among other circumstances, against him, to repel the presumption of innocence arising from the conju- gal relation. State of Connecticut v. Watkins, 9 Conn. Rep. 47. And an acknowledgment by D. that he was indebted to A., was received gs evidence that he was indebted to A. and B., they being partners in trade, their debt b§ing charged as such on book against D., and it not being 742 Of the Rehvancy of Presumptive Proofs. [CH. X. pretended in the course of the trial that D. owed A., individually, who was the principal partner in the firm. Dwight v. Brown, 9 Conn. Eep. 83, 88. To prove that D. owed C. for the board of a workman in D.'s factory, evidence waa received showing that it was hia courae to procure and pay for the board of his other hands in the same factory; and this was held, of itself, prima fade evidence of D.'s having engaged the board in question. Dwight v. Brown, 9 Conn. Rep. 83, 88. Seamdly, where testimony wUl be rejected as irrelevant A pauper remembering that when he was four years of age, he was in the parish of A., is no evidence that he was born there. Rex V. Trowbridge, 7 Bamw. & Cress. 252. The defendant having given proof of a deUvery to him of a deed from the grantor, the plaintiff, to rebut that, offered to show that a few days before the dehvery set up by the defendant, the latter broke open the grantor's trunk, and got the deed with other papers, which the grantor ordered him to put back. Held irrelevant. Hale v. HiUs, 8 Conn. Rep. 39. Proving that money borrowed was expended for the benefit of a partnership, does not prove that it was' loaned for their benefit; and ia not^er- se, admissible for the purpose of inferring the latter. Harris v. Wilson, 1 Wend. 57, 58, 59. In malicious prosecution, for ac- cusing the plaintifiF of stealing diamonds, proof by the defendant that certain feUow-workmen of the plaintiff offered to be searched for the articles about the time of the theft, was held not ad- missible even to show the qtto animo of the defendant, the plaintiff not being present, though he afterwards refused to be searched. RUey v. Gourley, 9 Conn. Rep. 154, 161. When a prisoner introduces evidence in support of his general good character, and the commonwealth endeavors to impeach it, the witness who impeaches wfll not be allowed to speak of conversations held vrith others subsequent to the commencement of the prosecution. Carter v. The Commonwealth, 2 Yirg. Cas. 169. To show the publication of a libel in a newspaper, it is not admissible to prove placards in the doors of third persons, announcing that the libel will appear, which doea appear accordingly. The evidence is too remote. The defendant should be conneoted with the placard. Raikes v. Richards, 2 Carr. & Payne, 562. To show that a grantor under whom the party claimed was of sound mind when he executed the deed, and so was of abihty to grant, a draft of the deed submitted to a sergeant at law who was a connection of tiie grantor, was offered in evidence. Held not admissible. At most it merely showed the opinion of one of the family that the grantor was sane. It was not a part of the res gestce ; for it was not shown that the grantor himself submitted the paper. It might have been submitted by others; and so was discon- nected with the grantor, and entirely irrelevant and made nothing. Ball's Lessee v. Ball, Irish K. B. Tr. ; 5 George lY (1824), 2 Fox & Smith's Rep. 249, 267. In a prosecution for bigamy against a woman, evidence of barbarous treatment by her first husband is inadmisaible. Wal- worth's Case, 1 C. H. Reo. 171. To defeat a sheriff's sale of land, evidence of his resignation intermediate the levy and sale, being irrelevant, should be rejected. LoSland v. Ewing, 5 Littell's Reports, 42, 45. To prove notice to an indorser, evidence that the notary's derk inquired where he Uved, declaring he was going to serve Mm vrith notice, and that after he had got information of the indorser's residence, he set out to go there, is not admissible. Parmera' Bank of Lancaster V. WliitehiU, 16 Serg. & Rawle, 89. In an action on a note given to two persons. Lane and White ; held the defendant could not be received to show that they at the date had another partner; for the note waa recoverable in L. & W.'s name, though the debt was due to another partnership. Cotton v. Lane, 1 Alab. Rep. 320. In an ejectment, it became material for the plaintiffs to show that L., under whom they claimed, had paid for the land. To repel this, the defendants gave evidence that L. was insolvent. To answer that proof, the plaintiffs offered the will of a third person, recognizing L.'s interest in certain land, and showing its value. This was admitted in the court below ; but held wrong on error, as it did not even appear that the third person had any interest in the land. Pipher v. Lodge, 16 Serg. & Rawle, 214, 222. In an action for breach of contract to convey land, the standing of the parties in life is abso- lutely inadmissible in evidencOj and cannot be considered by the jury. Rowland v. Dowe, 2 Murph. 347. N. B. The judge left it to the jury that the defendant was of liigh standing, and therefore had a higher sense of the moral obligation of a contract than if he had been in the lower ranks of Ufe, which consideration should enhance the damages. But on motion for a new trial, he retracted the charge, and consented to the motion. Rowland v. Dowe, 2 Murph. 347, 349. Assumpsit for the price of hardware, furnished by the plaintiffs to the defendants, to be used in building certain houses in Baltimore. The defence was that the plaintiffs were to take, SEC. lli.J Evidence to he confined to Points in Issue. 743 in pay, a part interest in one of the houses, when finished; and the defendant produced an agree- ment in writing between himself and certaia third persons, in respect to building the houses. One answer of the plaintiffs was, that the houses were not completed within the time stipulated ; and they offered to prove that, at the time of the agreement produced being entered into, a cer- tain day for completing them was agreed on. But held irrelevant ; the plaintiffs not being par- ties to the agreement proposed to be proved. Owings & Piet v. Low, 1 Har. & John. 124. A man's promise to do an act in behalf of another is not evidence, per se, that he is an agent for that purpose. Plant v. M'Ewen, 4 Conn. Rep. 545. In an action against the master, for so put- ting the plaintiff (one of the sailors) in fear, that he dare not return on shipboard, but remained on a desolate island, particular instances of abuse of the crew by inferior officers of the ship, which were known to the defendant, and not punished, were held not admissible. Bennet v. Howard, 3 Day, 219. In an action for breach of contract, evidence of fraud in the breach is inadmissible as a substantive ground of recovery. Willings v. Consequa, 1 Pet. C. C. Rep. 302, 311, 312. To rebut direct evidence of paying money on the debt of the defendant and others, evidence that the plaintiff's son (one of the debtors) had funds to pay the whole debt, which he received from the other debtors, who appointed him agent to pay the debt, ia not, per se, admissible as proof that the plaintiff paid, on his son's individual credit. "Wheeler v. Packer, 4 Conn. Rep, 1 02. An award between L., the owner of land, and the town of H., that certain public fishing ground lies within L.'s boundaries, is no evidence for L.'s lessee, to establish a prescription for a several fishery in L.'s boundaries against an inhabitant of H. It is irrelevant to such an issue. Gould V. James, 6 Cowen's Rep. 369. The general character and habit of a man to take more than legal interest, as a lender of money, is not admissible on a question of usury in a particular loan. Jackson ex dem. Norris v. Smith, 1 Cowen's Rep. 111. To show that the contract on which the plaintiff's claim depended, and which was made by the defendant with N., the defendant proved N.'s admission that he made a usurious loan to the defendant the year before the loan on which the contract in question was given. Held entirely irrelevant ; and that it should not be put to the jury as evidence, though the security for the first and last loans were in the same form. Jackson ex dem. Norris v. Smith, 1 Cowen's Rep. 7 1 7. In an action on a quantum meruit for services in one business, proof of the value allowed for similar services in another business by a person other than the defendant, under a special agreement, is not admissible to show the value. Bobbins v. Harvey, 5 Conn. Rep. 335. The question being whether a wiU was revoked, proof that the testator, after having made his wUl, burnt certain papers taken from his desk, where his valuable papers were usually kept, is inadmissible, though in connection with the fact that the will was not to be found at his death. Jackson ex dem. Brown v. Betts, 9 Cowen's Rep. 208. Whether proof that the testator requested a codicil to be drawn, be admissible to repel presump- tive proof that his will had been canceled ? Quere. Jackson ex dem. Brown v. Betts, 9 Cowen's Rep. 208; S. C. on error, 6 Wendell, 173. Evidence of the relative situation of a testator's children in point of property is inadmissible to support the presumption of a revocation of his win, where there is no change in their circumstances between the time of making the will and that of the alleged revocation. Jackson ex dem. Brown v. Betts, 9 Cowen's Rep. 208 ; S. C, on error, 6 Wend. 173, S. P. Where the point in issue was notice to an indorser, a letter by which he said to the plaintiff's agent that he would waive all defence under the Statute of Limi- tations, and another empowering an attorney to appear for him in the suit on the note without process, were both held irrelevant, as not tending to prove the notice. U. S. Bank v. Corcoran, 2 Pet. Rep. 121, 133. On the point whether the defendant had confessed judgment to defraud his creditors, it was offered that he had said : " If a man could not make both ends meet^ he ought to secure something for his family." The court said this was a symptom of incorrect principles ; but had no relation to the issue. Though the defendant were proved to be a knave, the plaintiff could not be affected by it. Whiting v. Johnson, 11 Serg. & Rawle, 328. To prove that the plaintiffs had paid a note given by them for the defendant, at ninety days, they showed a record of a judgment against them on a note at sixty days. Held irrelevant : but as the defendant did not object the irrelevancy, held no exception on error. Coe v. Hutton, 1 Serg. & Rawle, 398, 407. The general principle, that a party who puts himself on one issue admits all the rest, which therefore cannot be controverted by the proofs,' is recognized by ah. the cases, American as well as English. A prolestando, concerning certain facts not directly affirmed or denied by the par- 744 Of the Relevancy of Presumptive Proofo. [CH. X. tfcular pleading, is often prefixed to it, even at the present day, the pleader protesting that facts do or do not exist : and there is some old learning assigning to such an introduction its office and ' effect. Co. Litt. 124 b. Among other things, it is said to be of no use unless the issue be either found for the party jSrotesting (Br. Protestando, pi. 14; Co. Litt. 124 b; Plowd. 2r6 b); or unless the matter protested could not have been pleaded. Id. ; and 2 Wm. Saund. 103 a. !But it has long been treated as a mere blank in the particular cause. Thus, in MuUiner v. Wilkes (3 Doug. 218, A. D. 1783), in assumpsit on a note, the defendant pleaded that the parties made a corruptly usurious agreement, in pursuance of which the note was given. The plaintiff pro- testing that no such corrupt agreement was made, replied that the defendant did not, in pur- suance of any such corrupt agreement made, nor for any such purposes as were in the plea men- tioned, make the note. On the argument of a special demurrer, taken because this replication concluded to the country, Law, of counsel against the demurrer, insisted that this was a com- plete deiiial of the whole plea. BuUer, J. : " You have protested against the corrupt agreement ; and therefore, for the purposes of this replication, you admit it. The plea contains only two parts, and you have put only one in issue." Lord Mansfield inquired from Law what was the use of the protestation. Law said that he thought it frivolous, and of no use ; that it was an ex- diision of a conclusion in another action. Bullef, J. : "The use of a protestation is, to prevent the matter operating as an admission in another cause ; but in the cause in which it is used, it Admits the matter." And so the court finally held. Id. 219, 220; 1 Chit. PI. 590; and per ^Woodworth, J., in Briggs V. Dorr, 19 John. Eep. 96, S. P. So in pleading a bankruptcy to justify a trespass de tonis, &c., the plea contained distinct allegations of a trading and petitioning creditor's debt ; and then went on to state that the plain- tiff "became bankrupt:" replication, protesting the irading and debt, and denying that the plain- tiff became bankrupt. This was held to adWiit the trading and debt ; and the testimony at Nisi Prius was confined, by Lord Tenterden, C. J., to the act of bankruptcy alone. Cotton v. James, 3 Carr. & Payne, 505. So, where the assignee of a chose in action suing in B.'s name, to avoid a release by B. to the defendant, replied an assignment and notice of this to the defendant before the release ; and the defendant rejoined, protesting that no assignment had been made, and deny- ing the assignee's interest generally — but saying nothing of the notice — ^the whole repUoatiou wag held to be admitted. Briggs v. Dorr, 19 John. Rep. 95. ^ Orie count of a declaration cannot be called in as proof by the defendant to contradict or affect the evidence in respect of another. Thus, upon a declaration in assumpsit by a landlord against his tenant for breach of good Husbandry, where there was one count which professed to be founded on a special written agreement, and a second upon an impUed contract ; it was held, that the defendant could not insist upon the first count as evidence that a written contract existed, so as to impose upon the plaintiff the necessity of producing it. Per Le Blanc, J., Lan- ca^tfer Spring Ass., 1 Stark. Ev. 295. And this is especially so, if a noUx proser[m be entered on the count sought to be used as evidence. Brown v. Feeter, 7 Wend. 301. . But one count is, in no sense, material to the other, unless there be a reference by one to another ; and then not, if the reference be to. a mere formal matter, as the day, &c. Id 304, 305. A luMe prosequi on a count does not confess the plea to that count ; its only effect is to strike the count and plea from the reebrd. Thus, two counts — one on a note, the other for money, &c. — acUe non accrevit, &c., to the- first count, and nolle prosiqui as to that — do not operate to confess the plea ; but the fact pleaded may be contested, as if it never had been on the record. Keeler y. Bartine, 12 Wend. 110. Arid Marshall, C. J., in Hughes v. Moore (7 Cranch, 176), means no more than this. 12 Wend. 113. The same things hold of a notice of set-off, and of a biU of particulars under it, which is deemed apart of the notice. Harrington v. Macmorris, 6 Taunton, 238; S. C, 1 Marsh. 33. We had occasion in the last note to notice, for another purpose, the right of double pleading, i. e. d,ppeliding other pleas to the general issue, or other plea — or giving notice of special matter, the former of which is universally allowed, and the latter in several states. We mention the same cases here, for the purpose of observing that, as in a declaration or notice of set-off, one substantive count or part cannot be averred against the other, or in any way influence it as mat- ter of admission or evidence, so where several pleas are pleaded, an express or impUed admission in one stiU leaves the other in its full abstract force, although such admission may be direct and' of the very fact denied by the other. Grills v. Mannell, Willes, 378, 380, per WiUes, J. ; Kirk v. SEC. III.] Evidence to he confined io Points in Issue. 745 Nowill, 1 T. R. 118, 125. In the last case, Buller, J., said the pleas were as- uneonnected aS'if th'ey were on separate records. Id. 125. The same doctrine is recognized in Harrington v. Macmorris, supra; and by variods American oases. Murray v. Boissier, 10 Mart. Lon. Rep. 293, 300 ; Cornell v. Hope Insurance Company, 3 Id. (N. S.) 223, 227 ; ClUey v. Jennes, 2 K H. Rep^ 89; Alderman v. French, 1 Pick. Rep. 1, 4; Whitaker v. Freeman, 1 Dev. 2T1; Vaughan v. Hayens, 8 John. Rep. 109 ; Root v. King, 6 Cowen's Rep. 613, 624. The same rule holds as between a plea and a notice of special matter. Accordingly, where non est factum was held to admit the eviction, in covenant for quiet enjoyment, the circumstance that a notice of special matter of defence was attached, denying the eviction, was ailowed no weight as taking away the admission by plea. Kane v. Sanger, 14 John. Rep. 89. It is. the same, though there be a stipulation that all special matter may be given in evidence bythede- f^ndtot, the same as if pleaded. Dale v. Roosevelt, 9 Cowen's Rep. 301. So it was held that a judgment in favor of one defendant, on the plaintiff's demurrer to a plea in bar, was no admission that a separate plea of the same matter by another defendant was true- Lansing V. Montgomery, 2 John. Rep. 382. The notice in bar, which comes in place of a special plea, leaves the matter in the declaration still more open than the latter; for, when considered > by itseUi no implied admission can he imputed to it within the principle we are considering ; whereas, the special plea, though inde- pendent of its companions, yet relative to the declaration, must be construed, to admit, by its silence, what it does not- expressly deny. The notice is clear of this imphcationi. whether of special matter or a set-off. Vaughan v. Havens, 8 John. Rep. 109; Morgan, v. Boone, 1 J. J. Marsh. 585, 586. In New York, these notices come in under the general issue, being ajlowed by statute ; and so, it is presumed, generally, in other states. It is also well to observe, while on this head of points in issue,; that these notices are construed benignly and liberally ; and are much in ease of the pleader where the introduction of his defence is attended with difficulty under the ancient forms. Thus, notice of " divers judgments outstandr ing against the plaintiff, which were a Uen, &c.,'' was held sufficiently certain without gsing into particulars. Chamberlain v. Gorham, 20 John. Rep. 746. So, that the defendant would justify under a warrant, without stating its contents. Linsley v. Keys, 5 John. Rep. 123. And- see. 8 JohiL Rep. 457. It is enough if it appears that, under all the- circumstances of the casei the plaintiff would not be taken by surprise. Chamberlain v. Gorham, ut swpra. In Pennsylvania, it seems, the plea of payment may be interposed, with a statement of special matter which answers to the New York general issue and notice, and both seem to enjoy the same security against the imputation of implied admissions: Schlatter v. Elter, 13 Sergi St, Rawlej 36 ; Roop v; Brubacker, 1 Rawle, 304, 308, 309, and cases there cited; Steigleman v. Jeffries, 1 Serg. & Rawle, 477 ; Heck v. Shener, 4 Id. 249; Hollingsworth v. Ogle, I DaU. 257, 258^ per M'Kean, C. J. ; per Duncan, J., in Roth v. Miller, 15 Serg. & Rawle, 100, 104, 105. The plea of performance in an action of covenant seems there to have the same effect, as to legal questions; as it would have in common-law courts ; but these courts there receive matters: of defence, under this plea which would operate against the specialty in chancery on bUl filed or answer put- iff. And so under a plea of payment to a bond. Neave v. Jenkins, 2 Yeates^ 107, 108 ; Swift -w. Hawkins, 1 DaU. 17 ; Lewis- v. Morgan, 11 Serg. & Rawle, 234, 236. — A similar practice seems to prevail in Kentucky, at least ia respect to the plea of non estfaetmn) with leave, &c. Peebles v. Porter, 7 Monroe, 609, 610. In Massachusetts, a peculiar effect is given to a plea of justification in slander. It is there held that it admits the speaking of the slanderous words, although preceded by the general isau©. Jackson v. Stetson, 15 Mass. Rep. 48. But this is admitted to be anomalous; and the general rule prevails in that state as to pleading in all other actions. Alderman v. French 1 Pick. 1 4 And see Root v. King, 6 Cowen's Rep. 613, 614. The exception does not prevail in New Hamp- shire (Cilley V. Jennes, 2 N. H. Rep. 89), and it is denied to be law by Chief Justice MMshaJJ (Whitaker V. Freeman, U. S. C. C. N. C. 1 Dev. 271J; who reiterates, the above cited strong language of Buller, J., in its application to actions for slander, as -well as to all others. Bating the above questions of construction! and the above anomalies, the application of tiii« general principle is usually clear of all difficulty. We shall, therefore, close this note with a few modem instances. The general issue, or other plea in bar, admits the character in which the plaintiff sues to be 746 Of the Relevancy of Presumptive Proofs. [CH. X. as it is set out. in the declaration; as where he or they are described in the declaration to be overseers of the poor of a certain town (Carpenter & Rose, overseers, &c. v. Whitman, 1 5 John. Rep. 20«) ; the proprietors of Kennebec Purchase (Prop, of Ken. Purch. v. Call, 1 Mass. Rep. 483, 485) ; the successors of the treasurer to whom the bond was given (per Gantt, J., in State Treasurers v. Wiggins, 1 M'Cord, 468, 470 1 ; executor or administrator (Fraux v. Fraux, 1 Pen- nington, 166; Smith, Adm'r of Walker v. Ludlow, Anth. N. P. Rep. 127); held in detinue, where the plaintiff declared as administrator de bonis non, on the possession of the testator (Floyd v. Breckenridge, 4 Bibb, 14, 17); and as an ordinary administrator; and said the admission is con- clusive (Henderson's Adm'r v. Clark, 4 Bibb, 391, 392); and as an administrator ami tesiamenio annexo (Thomas v. Tanner, 6 Monroe, 52, 59). The defendant cannot, on this plea, question the right of the plaintiff to come in this character, even though the court granting his letters of pro- bate or administration be a foreign court ; and therefore have no jurisdiction of letters to be used in the state where suit is brought. Champlin v. TiUey, 3 Day, 303, 305, 306. But it was agreed that if the plaintiff declare in detinue on his own possession, he must prove his letters in the ordinary way, or show possession in himself. Floyd v. Breckenridge, Henderson's Adm'r v. Clark, and Thomas v. Tanner, ut swpra. So this plea admits that the plaintiff is a foreigner, as he alleges; and is therefore qualified to sue in the United States courts (De Wolf v. Rabaud, 1 Pet. S. C. Rep. 476, 498); or that he is, as he alleges, a citizen, and therefore entitled to proceed in a particular mode allowed by statute to citizens alone (Shivers v. Wilson, 5 Harr. & John. 130) ; or that he is, as alleged, a guardian (Harper v. Distrehan, 2 Mart. Lou. Rep. (N. S.) 389). So, where the plaintiffs sue as a corporation, we have seen in The Proprietors of the Kennebec Pur- chase V. Call (vi supra), that » plea of the general issue admits them to be a corporation, and supersedes the necessity of proving their charter or character at the trial. This has been repeat- edly holden by other courts (Conard v. The Atlantic Insurance Company, 1 Pet. S. C. Rep. 388, 450 ; Whittington v. Farm. Bank, &o., 5 Har. & John. 489) ; and this, even in respect to a foreign corporation. Society for the Propagation of the Gospel in Foreign Parts v. Pawlett, 4 Pet. 480, 501 ; Taylor v. Bank of Illinois, 7 Monroe, 576, 584. It is otherwise, however, in the state of New York, even in respect to a domestic corporation and whether it sues on a contract or tort. Jackson ex dem. The Trustees of the Union Academy of Stone Arabia v. Plumbe, 8 John. Rep. 378 ; Bill v. Fourth Western Turnpike Company, 14 John. Rep. 416 ; per Thomp- son, Ch. J., in The Dutchess Cotton Manufacturing Company, 14 John. Rep. 238 ; The Utica Bank V. Smalley, 2 Cowen's Rep. 770; The Bank of Auburn v. Weed, 19 John. Rep. 300; The Farmers k Mechanics' Bank v. Rayner, 2 Hall's Rep. N". Y. S. C. 195. A fortiori as to foreign corporations. Williams v. The Bank of Michigan, 7 Wend. 540. But now, by 2 R. S. 458, § 3, this rule, or rather perhaps exception, is abolished, as to domestic corporations, though left in fuU force as to foreign. In assumpsit, by the assignee of an insolvent, the general issue was held not to supersede the necessity of proving that the plaintiff was assignee. Best v. Strong, 2 Wend. 319. And so of an insolvent's trustees. Winchester v. The Union Bank of Maryland, 2 Gill & John. 73, and Houck V. Grouse, cited Id. 77, 78. And held, that where sealed contracts are made negotiable by statute, yet non eslfacium does not admit the assignment. McMurtry v. Campbell, 1 Hamm. Rep. 262. The plea of mm est factum to an action of debt or covenant puts the execution of the deed alone in issue; and the plaintiff need not prove any averments, except such as relate to the validity of the deed. Under tliis rule, it was held that in covenant to pay on receiving one-third of the plaintiff's dower, non est fcutum admitted that the condition was fulfilled, and dispensed with proof of this at the trial. Gardner v. Gardner, 10 Johns. Rep. 47. So of eviction, alleged in covenant for quiet enjoyment (Kane v. Sanger, 14 John. Rep, 89 1; so, of assets, in covenant against an heir, the declaration averring assets (Woodford's Heir v, Pendleton, 1 Hen. & Munf. 303) ; so that the bond declared on is not voidable as being given contrary to certain legislative provisions ; for this must be pleaded specially. The Commissioners of the Poor for Horry Dis- trict V. Hanion, 1 Nott & M'Cord, 554, 555. So (in some states whore an equitable defence is admissible) non est factum admits that the bond was obtained without fraud or misrepresentation, and upon full consideration, which has not failed, &c. ; and if the contrary be intended as a defence, it must be specially pleaded, or notice must be given. Adams v. Wylie, 1 Nott & M'Cord, 78 ; Bollinger v. Thurston, 2 Rep. Const. Ct. 447. So this plea admits the amount averred to have been awarded, in an action upon au arbitration bond. Graliam v. Allen, 2 Nott SEC. III.] Evidence to he confined to Points in Issue. 747 & M'Cord, 492. So non est faciwm to a constable's surety bond, though with notice that the plaintiff (relator) had been satisfied by bidding in property, does not warrant evidence of declara- tions made by him, calculated to lull the constable into security; the relator thus bringing the damage upon himself, and leaving the constable free from blame. The People v. Holmes, 5 "Wend. 191. So, in an action by the lessee against his lessor on the covenant of title, non est factum admits the want of title (Barney v. Keith, 6 "Wend. 555) ; in covenant for money, alleging non-payment and averring performance of conditions precedent, as the procuring and delivery of patents, &c., it admits the non^ payment, and that the conditions were performed (Dale v. Roose- velt, 9 Cowen's Rep. 307; Courcier v. Graham, 1 Hamm. Eep. 330, 345, S. P.); in covenant averring notice, it admits the notice iThomas v. Woods, 4 Cowen's Rep. 1T3, 185); in debt on a bad bond assigned by the sheriff, it admits that it was legally assigned (Soloman v. Evans, 3 M'Cord, 274); In covenant for non-delivery of slaves on demand, it admits the demand. (Mitchell V. De Graffenreid, 1 Harp. Rep. 450); in debt on an appeal bond, it admits all the averments as to matters of record, non-payment, Ac. (Legg v. Robinson, 7 "Wend. 194; per Nelson, J., in Hamilton v. Averill, 11 Id. 624); and the want of title as well as the eviction, &c., in ^ action on a covenant of warranty (Cooper v. Watson, 10 Wend. 202) ; but not any fact which is not averred ; as (in an action on a replevin bond) that the writ de ret. hob. was returned unsatisfied, this not being averred. Cowdin.v. Stanton, 12 Wend. 120. A plea of disclaimer in a real action admits the demandant's title (Prescott v. Hutchinson, 13 Mass. Rep. 439); the general issue in a writ of entry admits the defendant's tenancy of the freehold (KeUeran v. Brown, 4 Mass. Rep. 443; Higbee v. Rice, 5 Mass. Rep. 344; Pray v. Pierre, 7 Id. 381 ; Alden v. Murdook, 13 Id. 259) ; the ouster (Id. ; Steven v. Winship, 1 Pick. 318|; the tenant's possession (Mills v. Pierce, 2 N. H. Rep. 9); in dower, denial of the marriage or seizin, admits all other material allegations ; as a demand of dower, &c. (Ayer v. Spring, 10 Mass. Rep. 80) ; and a denial of marriage admits seizin. Fitzgerald v. Garvin, Charlt. Reports, 281, 282. In Jbrmedon in the descender, non devisavit admits all the material facts in the count except the, devise (Dudley V. Sumner, 5 Mass. Eep. 438); and in a vmt of right, the mise pre- cludes all evidence of non-tenure. Boiling v. the Mayor, &c., of Petersburgh, 3 Rand. 563. In replevin, non cepii in alio loco, does not admit the taking as laid. WiUiams v. Welch, 5 Wend. 290. A plea of justification in an action of malicious prosecution, admits the proceedings set out in the declaration; and throws the onus upon the defendant, even of showing probable cause. Morris V. Corson, 7 Cowen's Rep. 281. In replevin, a plea of property out of the plaintiff admits the taking (Hume v. Gillespie, 3 Monroe, 184) ; and non cepit admits property in the plaintiff. Harper v. Baker, 3 Monroe, 421. A general plea of tender to two counts, one on an account stated, and another on a qiumtv/m meruit, is conclusive that a claim for both causes exists, and cannot be afterwards limited to an account stated, or to a special agreement for a sum certain. Huntington v. The American Bank, 6 Pick. 340. A plea of payment to an action of assumpsit admits the cause of action (Haley v. CaUar, 1 Alab. Eep. 63 1; to an action upon an award, it admits the award (Fraux v. Fraux, 1 Penning. Rep. 166); to an action on judgment, it admits the judgment. Raymond v. Wheeler, 9 Cowen's Rep. 295. lAberum tenementv/m conclusively admits the trespass, and the plaintiff's possession of the close (Singleton v. Millet, 1 Nott & M'Cord, 355; Camth v. AUen, 2 M'Cord, 226); solvit ad diem admits the execution of the bond (Sandford V. Hunt, 1 Carr. & Payne, 118); and on an issue of property or not property, the taking cannot be questioned. Hume v. Gillespie, 3 Monroe, 184. A plea of performance to an injunction bond admits the dissolution of the injunction, and all other facts well pleaded (Har- rison v. Park, 1 J. J. M:arsh. 170, 172); and a plea of set-off admits the plaintiff's demand. Morgan v. Boone, 1 J. J. Marsh. 685, 586. An averment that a bond is discharged, admits that it was executed (Naba v. Carlin, 3 Lou. Eep. (N. S.) 373); and an answer insisting on payment admits the allegation in the petition, of goods sold to the defendant. Akin v. Bedford, 4 Lou. Rep. (N. S.) 615. But it should be noted that a plea, though it admit the cause of action, does not admit its amount ; and so of amounts admitted by affirmative pleading in any stage, as by replication, &c., unless the precise sum be made material by the pleadings. In this respect, the affirmative plea is like a judgment by default or on demurrer, where damages must still be assessed. Waggoner 748 Of the Rekvancy of Presumptive Proofs^ [CH, 2. Proof of other oontraote, &g., when admissible. It is considered, in general, that no reasonable presumption can be formed as to the making or executing of a contract by a party with one person, in consequence of the mode in which he has naade or executed similar contracts with other persons. Still less can. a party be affected by the declarations, conduct, or dealings of strangers. Transactions which fall within either of these classes, are termed in law res inter alios acta, and evidence of this description is, uniformly rejected. Where the question between a landlord and his tenant is, whether the rent was payable quarterly or half-yearly, it has been held irrelevant, to consider what agreements subsisted between the landlord and other tenants, or at what time their rents would become due.(l) So, where the question V. Bells, 4 Monroe, 1, 11, 12. A good instance is the plea of payment in an action of assumpsit. Haley v. Oallar, 1 Alabama Eep. 63. To the usual plea of an insolvent discharge, the replication denied that the defendant was dis- charged as he alleged. Held, that it was not necessary to show jurisdiction, as this was admitted by the rephcation; and so was the filing of the petition, the same as any other fact not denied. Andrews v. Pledger, 4 Carr. & Payne, 381 ; S. C, 1 Mood, k Malk, 508. The rephcation of a new promise to a plea of infancy admits the infancy. G-oodsell v. Myers, 3 Wend. 479. It was held that where the defendant went to trial without a rejoinder, the facts stated in the rephcation should be taken as admitted, although the attention of the court and jury was .not called to the state of the pleadings ; and there being a verdict for the defendant,' a new trial was, for that reason, granted. Porter's Adm'rs v. Kennt, 1 M'Oord, 205. Quere. Most courts would probably have amended the issue and retained the verdict. To a plea of set-oflf, and that the plaintiff got a transfer of the note to avoid the set-off, a replication that the note was the plaintiffs property was held to admit both the set-off and the fraudulent transfer. Savage v. Davis, 7 "Wend. 223. The plea of non-tenure to an avowry for rent, setting up a seizin and deducing title, admits the seizin and demise. Bloomer v. Juhel, 8 Wend. 408. Riens « a/rrere admits the defendant's title. Id. To an avowry and cognizance setting forth a lease and rent, by two defendants, averring that B., one of the defendants, distrained as baihfif of A., the other; the plaintiff pleaded, simply denying that B. was baiUff ; and held that this admitted the lease and the amount of rent, as set forth. Soloman v. Harvey, 1 Nott & M'Oord, 81. Qui non rwgat, faieiur, is the maxim in respect to pleading. All material allegations not denied are admitted. Thus, where in trespass de ionis asporiatis the defendant pleaded that he assisted the sheriff in taking the goods in exe- cution against the plaintiff; and the plaintiff replied a previous ca. sa., an arrest and a voluntary escape, and that the defendant then sued out the execution in question ; and the rejoinder was that this execution was sued out by another, and not the defendant ; this was held to admit the escape and other material allegations, except that this execution was sued out by the defendant. Cheever v. Mirrick, 2 W. H Eep. 376, 377. On replication setting forth a code of by-laws and alleging a breach, an issue on the breach admits the by-laws. Union Bank of Maryland v. Ridgley, 1 Har. & Gill's Rep. 324. In assumpsit, the defendant pleaaed a set-off of $2,500; replication that the defendant was in debt to the plaintiff $3,000, and paid the plaintiff S-,500 in part thereof ; rejoinder, he had not owed the $3,000; the plaintiff has the onus; for he has admitted by the replication the payment of the $2,500. Waggoner v. The Bells, 4 Monroe, 7, 11 . (1) Carter v. Pryke, Peake, 95. And see Spenceley v. De Willott, 7 East, 108. Note 197. — In an action for a vexatious suit, other actions for other causes, brought by the defendant against the plaintiff, are inadmissible in evidence. Bay v. Law, 1 Pet. C. C. Rep, 207, 209. And, to mitigate damages in assault and battery, a previous provocation is inadmissible, unless it immediately precede the assault ; as a previous libel published by the plaintiff of and concerning the defendant (Lee v. Woolsey, 19 John Rep. 319) ; or a slander against tlie defend- ant's sister (Avery v. Ray, 1 Mass. Eep. 12) ; or that the parties were on bad terms, and tlie SEC. III.] Evidence to he covfined to Points in Issue. 749 ■was as to the quality of beef to be furnished by the plaintiff to the de- fendant, it was held, that evidence could not be admitted of the quality of beer supplied by the plaintiff to other persons.(l) In like 'manner, in an action of trover, brought by the assignees of a bankrupt against a creditor, to recover property 'alleged to have come into the possession of the defend- ant after an act of bankruptcy, the fact that other creditors, who had re- ceived goods from the bankrupt before the delivery to the defendant, had returned them to the assignees, after the fiat had been issued, was held not to be admissible in evidence against the defendant.(2) So, in an action plaintiff had, on previous days, used provoking and abusive language of, and to tMe defendant. Rawlings v. The Commonwealth, 1 Leigh's Rep. 581. Nor shall the defendant, inan action for a libel, be allowed to show that he was previously hbeled by the plaintiff, unless the last Ubel purport to be an answer to the first. Beardsley v. Maynard, 4 "Wend. 357 ; Gould v. "Weed, 12 "Wend. 12. On the other hand, to enhance the damages in assault and battery, the plaintiff cannot show a suit brought by the defendant against him on purchased notes, with a view to set off his judgment against the plaintiff's. Jaeoby v. Guier, 6 Serg. & Rawle, 399. Action of assault against a music master of a cathedral, for beating a boy, one of the choristers for singing at a catch club, which might be injurious to the performance in the cathedral. The plaintiff belonged to the school. The defendant justified, in that he forbade the plaintiff going to the catch club, as an injurious exercise ; and being disobeyed, he moderately corrected him ; and would have justified upon the practice of the like schools in other parts. But this evidence as to other practice was held not admissible. It was irrelevant. The master, having no jurisdiction out of his school, could not thus justify the correction. Newman v. Bennett, 2 Chit. Rep. 195. Two signing a joint note is, per se, no evidence of their being partners. Hopkins v. Smith, 11 John. Rep. 161. And where the question is upon fraud in one transaction, evidence of fraud in others, totally disconnected, is inadmissible. Somes v. Skinner, 16 Mass. Rep. 360. "Where the defendant claimed under the devisor's wOl of 1817, which the plaintiff (the heir; sought to im- peach, by reason of the testator's incapacity, the defendant was not allowed to show that the plaintiff had, in 1814, purlotced a previous wiU of the testator ; for that did not bear on the now point of inquiry. Den ex dem. Stevens v. Van Cleve, 4 "Wash. C. C. R. 262, 265. In an action against the owners, for negUgently mana,ging a ship, so that she was wrecked, and the plaintiff lost his passage, another act of negligence not bearing on the wreck, and which could not possibly cause it, was held irrelevant f viz : neglect at an earlier part of the day. Mattou v. Nesbit, 1 Carr. & Payne, 70. In an action on a note purporting to be witnessed by B., the genuineness of which attestation was in issue, the defendant was not allowed to show that D., a former holder of this note, had forged another note with B.'s name as a witness; nor that D. wrote the body of this note. Keith v. Taylor, 3 Verm. Rep. 153. In slander, under a plea of justification that the plaintiff was perjured, the court refused to receive testimony that the plaintiff, when not under oath, contradicted what he swore in committing the supposed perjury, until it was first proved that he had sworn false by other testimony; holding that the declaration might then be received to show knowledge and corruption. Eastburn v. Stephens, Litt. Sel. Gas. 82. Quxfre. "Was it not admissible in either view? In slander forraecusing a school of filth and bad food, which was sought to be justifi^ as true ; to rebut the proof of justification, held that the plaintiff could not inquire of the treatment of boys at any other partfevilar school, nor the manner of thelt' edilcation. Both are out of the issue. Boldron v. "Widdows, 1 Carr. & Payne, 65. See note 196. (1) Holcombe v. Hewson, 2 Camp. 391. For other examples, see Boldron v. Widdows, 1 C. & P. 65 ; Smith v. Wijkins, 6 0. & P. 180 ; Delamotte v. Lane, 9 C. & P. 261 ; Barden v. Kever- berg, 2 M. & "W. 61. (2) Backhouse v. Jones, 6 N. C. 65. 750 Of the Relevancy of Presumptive Proofs. [CH. X. against tlie acceptor of a bill of exchange, where tlie defence was that the acceptance was a forgery, evidence offered on the part of the defendant that a collection of bills, bearing his forged signature, had been in the plaintiff's possession, and that some of such bills had. been circulated by him, was held to be inadmissible, without distinct proof that the bill in suit had formed part of the collection. (1) Again, upon the trial of an issue whether smoke, issuing from the manu- factory of A., was prejudicial to the premises of B., evidence that A. had paid money to C, the owner of premises adjacent to those of B., for al- leged damage occasioned by the smoke, is not admissible.(2) Proof of other transactions to show knowledge. On the other hand, it may frequently be very proper, and in some cases absolutely necessary, to look beyond the transaction which is the imme- diate subject of inquiry, into previous transactions, for the purpose of making a just inference as to the knowledge of the parties, their motives or intentions.(3) The case of Gibson v. Hunter, (4) affords an instance of this kind. That was an action by an indorsee against the defendants, as acceptors of an instrument purporting to be a bill of exchange ; a ques- tion arose on the third count, which stated the bill to be payable to bearer, under the following circumstances : It appeared in evidence that the name of the person mentioned as payee was merely fictitious, but this fact was not known to the plaintiff; and for the purpose of showing, that the de- fendants at the time of their acceptance knew the name in the bill to be fictitious, or that the defendants had given authority to the drawer to draw the bill in question payable to a fictitious person, the plaintiff proposed to prove that the defendants had given a general authority to the drawer to draw bills of exchange upon them, to be made payable to fictitious per- sons, and evidence to this effect was produced ; the counsel for the defend- ants objected to this evidence, on the ground that it had no relation to the particular bill in question, and that the facts of any particular transaction could not legally be inferred from circumstances which- applied wholly to other transactions. Lord Kenyon, C. J., who tried the cause, admitted the evidence ; upon which the counsel for the defendants tendered a bill of exceptions. The Court of King's Bench gave judgment for the defend- ant in error. A writ of error was then brought in the House of Lords ; and the question on the admissibility of the evidence was referred to the (1) G-rifhts V. Payne, 11 A. k, B. 131. See, also, Viney v. Bare, 1 Esp. 293 ; Balcetti v. Serani, 1 Peake N. P. 0. 142 ; Thompson v. Moseley, 5 C. & P. 502. (2) Tennant v. Hamilton, 1 01, & Fin. 122. The question arose as to the cross-examination of a witness in the Court of Session in Scotland, and the House of Lords decided that the question was inoompetont, as leading to a new collateral inquiry, not affecting the issue, or testing the credit of the witness. (3) See infi-a aa to the proo/o/ knowledge in issuing counterfeit money. (4) 2 H. Bl. 288. SEC. III.] Evidence to he confined to Points in Issue. 751 judges. On this question there was a division among the judges ; but the majority of them, together with the Lord Chancellor, and Lord Kenyon, C. J., being of opinion that the evidence was properly received and left to the jury, the judgment below was af&rmed.(l) (1) Note 198. — See onte, note 196, and note 206. In an action for falsely representing one Johnson to be solvent, a witness was allowed to prove that the defendant had made the same rep- resentation to him, and thus defrauded him of goods; as this showed or tended to show a fraudulent connection between the defendant and Johnson. Beal v. Thatcher, 3 Esp. Eep. 194. In an action for conspiracy to defraud, by representing A., a bankrupt, as a man of property, evi- dence that the defendants made the representations to third persons, who, without the defend- ant's request, recommended A. to the plaintiff, who was thus injured, was held admissible. Gardner v. Preston, 2 Day, 205. To show fraud in selling an inferior kind of goods for blue guineas, a witness was allowed to prove a. sale to himself of a parcel of blue guineas, by the defendants, before the sale to the plaintiffs ; and the declaration and conduct of the defendants towards him on the subject of the distinct parcel. Snell v. Moses, 1 John. Rep. 90, 99, 100, 102. "Where the question is on fraud upon creditors, in the sale of real estate, the purchase of personal property by the grantee from the grantor, with the intent to defraud creditors, made after the sale of the real estate, is admissible in evidence to show that the first sale was fraudulent. Jackson ex dem. Hooker v. Mather, 7 Cowen's Rep. 301. On the trial of a question of fraud in obtaining a deed by an administrator, from one heir, evidence is' admissible of his conduct in respect to the property of another heir to the same estate. So of a release from several different distributees. Lovell v. Briggs, 2 N. H. Rep. 218, 222,. 223. Previous acts by the father, allow- ing his minor son to make contracts and settlements in respect to his services, are admissible in evidence to bind him by like subsequent acts of the son. Chilson v. Phillips, 1 Term. Reports, 41. In replevin to avoid the sale of a horse by the plaintiff to R., on the ground of fraudulent misrepresentation by R., who immediately sold the horse to the defendant, the plaintiff was al- lowed to prove other simUar acts by R., in respect to other persons and property, about the same time. McKenney v. Dingley, 4 Greenl. Rep. 112. A., claiming that C, in consideration of a note sold by A. to him, sold A. goods bona fide, and not to defraud creditors, the latter may show that before the goods were sold, a considerable note and mortgage were given by C. to A., though the proof has but a remote bearing. Treat v. Barber, 1 Conn. Rep. 214. On issue upon a plea to an indenture, that its object was the buying and selling of lottery tickets (and therefore ille- gal), evidence that the plaintiff bought and sold tickets after the date, was held pertinent. Williams v. Woodman, 8 Pick. 18. On a question whether a court of conscience holden before the mayors of Limerick had exceeded its jurisdiction as to the subject matter, it appeared that the court had been held on Thursdays for upwards of thirty years, and that the matter and adju- dications were recorded in a book ; and that during the same time it had been holden on other days without record. Held, that the Thursday records might be read, as evidence of jurisdiction upon other days. Hogan v. Mahon, 1 Hud. & Bro. Irish T. R. 284. On a question whether a certain injury to certain blankets arose from sea damage, or damage done at the factory, proof was received that other blankets coming from the same factory, and having an appearance simi- lar to those in question, were injured at the factory, to repel the proof that the damage was done by the sea. Bradford v. Boylston Fire and Marine Ins. Co., 11 Pick. 162, 166 to 161. On a question whether the filling up of a harbor by earth was occasioned by an embankment, to repel the inference that it was, evidence may be given that other harbors similarly situated were fiUed in a similar way, without the aid of an embankment. Folkes v. Chadd, 3 Doug. 151 ; S. C, 4 Stark. Ev. 382, there called the Wells Harbor Case. In libel ; to repel proof of the charge (that the plaintiff had attempted to destroy all rehgious institutionsjhis drawing up, circulating and paying subscriptions for support of preaching, were held receivable. Stow v. Converse, 4 Conn. Rep. 11, 43. To prove possession, in a proceeding for forcible entry and detainer, the complain- ant was allowed to prove that he had, sixteen years before, demised to one of the defendants a barn then standing on premises of which the locus in quo was parcel, though not standing there 752 Oj the Rekvancy of Presumptive Proofs. [CH s. when the entry was made. But it was admitted that this was very feeble evidence. Button v. Tracy, 4 Conn. Eep. 19, 94. In trover for goods alleged to have been fraudulently obtained by the defendant and L., subsequent acts of collusion and fraud by them to obtain goods from others, were held admissible as tending to show their intent in respect to the plaintiff. Allison v. Mat- thieu, 3 John. Rep. 235. Where there were circumstances creating suspicion that a note had been fraudulently altered, the alteration of other notes drawn and indorsed by the same parties, to take up one for which the note in question had been given, was held admissible as going to strengthen the suspicion. Eankin v. Black well, 2 John. Cas. 198. ■A knowledge in the vendee that the vendor is insolvent, may be inferred from the former buying goods of the latter in great quantities, for a long time and at a great discount. Tates v. Carnsew, 3 Carr. & Payne, 99. On an issue whether a party was committing a willful trespass, so as tO' subject himself to an immediate arrest, upon the malicious trespass statute (1 Geo. IV, ch. 56), he may give evidence as to a right of way claimed by him, in order to show qw) animo he he entered, though in truth a trespass was unwarrantably committed. Looker v. Halcomb, 1,2 Moore, 410, 416. That one was reputed to be an Irishman, and had the accent or brogue of an Irishman, and was reported to be an Irish deserter, was received as prima facia evidence that he was an Irishman. Jackson ex dem. People v. Etz, 5 Co wen's Eep. 314. On trial of an indict- ment for the forgery of bank notes, it appeared that the prisoner was arrested on the stairs leading ■to a room in the third story, where J. and M. were employed in counterfeiting notes on the United States Bank. The court being thus satisfied that he was connected with J. and M. in the business of counterfeiting, received evidence that different parts of the machine employed in counterfeiting were found with them. The United States v. Craig, 4 Wash. C. C. Rep. 129, in connection with United States v. Moses, Id. 726. On a trial for high treason, it being proved that the prisoner had enlisted into the enemy's army, his unsuccessful attempt to persuade another to enlist was allowed in evidence, as showing the quo animo. Respubhoa v. Roberts, 1 Ball. 39. It is not admissible on the trial of an indictment for passing a counterfeit bill with knowledge, to prove, on the part of the prosecution, that the prisoner was arrested in company with one who had pre- viously been convicted of the same offence, nor that he boarded at the house of one in whose possession counterfeit money, and instruments for counterfeiting had been found (who had also been convicted of the offence), unless the prosecution can also show that the prisoner was con- nected in the business of counterfeiting with those in whose company he was found. But if the 'prisoner' has, in his examination before the magistrate, denied those facts, the examination be- comes evidence, which the public prosecutor may rebut by other evidence. Goldsby's Case, before Radcliff, Mayor, 1 C. H. Rec. 81. On trial of an indictment for receiving stolen goods of A., it is not competent to show that the prisoner's house was the common resort of felons, for the purpose of disposing of their plunder. People v. Pierpont, before Riker, Recordei', 1 "Wheeler's ■Cr. Cas. 139. M. sued for the value ,of a bill which he had received as a good one, but was defeated in his suit, on the g-roundthat the bUl was counterfeit. Yet others told him it was good and he gave it to G., who said he could pass it in consideration of five dollars, to be .spent be- tween them. The jury, on an indictment against M. and G. for passing it under these circum- stances, acquitted M. and convicted G. ; and in the course of the trial, it was held not necessary in order to fix the prisoners with guUt, to show a knowledge that the bUl was counterfeit, to an ,.absolute certainty ; but only reasonable grounds of belief. GaUaher's Case, before Coldon, Mayon 5 C. H. Rec 1. To show that false swearing was corrupt, proof may be given that the deponent had used expressions of malice in respect to the one against whom he swore. Eex v. Mun- -ton, 3 Carr. & Payne, 498. On trial of an indictment for administering sulphuric acid to horses, -with intent to kill them, administering at different times, may be shown, in order to demonstrate the intent. Rex v. Mogg, 4 Carr. & Payne, 304. On trial of an indictment for manslaughter by the application of a lotion to the skin, evidence may be given of the effect of the lotion when applied to other patients. Rex v. Long, 4 Carr. & Payne, 398. The defendant was indicted for a robbery, in advising the prosecutor to give money in order to appease the members of a mob, who demanded it from him with tlireats. To show that this advice was not bona fide, but, given as a member of the same mob, other like demands made by the same mob at other places, before and afterwards in the course of the same day, in presence of the prisoner, may be received. Rex V. Winkworth, 4 CaiT. & Payne, 444. Knowledge of a forgery by one in whose favor an instru- ment was forged, is evidence that he was the forger. Commonwealth v. Stevens, 10 Mass. Eep- SEC. in.] Evidence to he confined to Points in Issue. 753 Upon a similar principle, evidence of a transaction between one of the parties to an action and a stranger, will be admissible, where its tendency is to rebut a prima fade case of liability affecting such party. Thus, in an action for work and labor, where the defence was, that the credit was given by the plaintiff to A., and not to the defendant, and that the defend- ant had paid A. for the work in question ; A., who had become bankrupt since the work in question, was called as a witness for the defendant, and stated that the order was given by him ; and he also stated that, at the time of his bankruptcy, the defendant, in reference to his general account including the work in question, had overpaid him ; this latter statement was objected to upon the ground that the state of the account between the defendant and A. was res inter alios ; but it was held to be admissible, as showing the hona fides of the defence, that A. had been dealt with by the defendant as a principal, and not as an agent.(l) Proof of customs in other manors, Ac. With respect to the relevancy of a presumption, that a customary right exists in one place, from the fact of its being proved to exist in another, it is to be observed, that when a right is claimed by custom in a particular manor, proof of a similar custom in an adjoining manor, though within the same parish or leet, is not, in general, admissible in evidence, and this not even though there be evidence to show that the latter manor was a subinfeudation of the former ; at least, unless it be clearly shown that they were separated after the time of legal memory, since, otherwise, they may have, had different immemorial customs.(2) Lord Eaymond, C. J., said,(3) he had always looked upon it as a settled principle in the law, that the customs of one manor could not be given in evidence to explain the cus- toms of another manor ; " for if this kind of evidence were to be allowed, the consequence seems to be, that it would let in the custom of one manor into another, and in time bring the customs of all manors to be the same." And in addition to this argument of inconvenience, the objection taken to the evidence in that case, namely, that it was inapplicable to the point in dispute, appears to be very strong ; customs being different in different manors, and in their nature distinct. Unless, therefore, some connection 181. Where there is no written statute or constitution prescribing the business of an ofBcer Of state (e. g. the accountant-general), it is determinable by the usage of himself and his predecessors in his department. Evidence of such usage is receivable, on the trial of an indictment preferred against such officer, charging neglect of certain duties to the injury of the nation. Per Lord Mansfield, C. J., in Rex v. Bembridge, 3 Doug. 327, 331. (1) Gerish V. Chaities, 1 C. B. 13. (2) Anglesea (Marq.) v. Hatherton (Lord), 10 M. & W. 218 ; Somerset (Duke) v. Prance, 1 . Str. 662 ; Ending v. Newell, 2 Str. 9h1 ; Pumeaux v, Hutchings, Cowp. 80^ ; by Buller,' J., in Noble V. Kennoway, 2 Doug. 512 ; by Lord Eenyon, 0. J., in Carter -v. Pryke, Peake N. P. C. 95 ; by Wood, B., in Doe d. Poster v. Sisson, 12 East, 63 ; Erskine v. Euffie, 3 Gwill. 965. (3) In Somerset (Duke) v. France, ut su^pra. ' Vol. I. 48 754 OftheEekvancyofPresmnptiveProqfs. [CH. X. or relation is proved to have existed between them, as by showing that they were all formerly holden under the same lord, or that the one manor was anciently parcel of the other manor,(l) such evidence is not ^admissible. But several cases appear to have determined, that, where all thei manors within a certain district are held by the same peculiar tenure, and a ques- tion arises in any one of them upon: an incident to the tenure, evidence may be given of the usage which prevails in any of the other manors within the district. The first reported case of this kind is Champian v. Atkinson, (2) where the question was, whether a certain fine, called a grassum fine was payable on the death of a tenant, when the lord was an infant;' and the defendants were allowed to give in evidence, upon the trial of this issue, that in other adjoining manors, where the grassum fine pre- vailed, it was the custom not to pay to the lord before he attained his full age ; similar evidence was there said to have been received, on a question of copyhold tenure, between certain manors in Middlesex. On the authority principally of this case of Champianv. Atkinson, the case of The Duke of Somerset agt. France(3) was decided. On a trial at bar, where the issue was, whether a general fine was due from the tenants of certain manors in Cumberland to the duke as next admitting lord, the court after much argument received evidence, that the same fines had been paid in similar cases to the lords of other ' manors. Eaymond, C. J., and Reynolds, J., laid down the general rule as above stated, and were strongly against admitting the evidence; but afterwards agreed to receive it, on the authority of Champian v. Atkinson, and of cases said to have befln so ruled on the northern circuit. Fortescue, J., thought the evidence admis- sible, and made a distinction between, the cwstom and the tenure of a manor, and as the question, there to be tried, merely concerned the tenure of the plaintiff's manors, he was of opinion that it would be proper to inquire what were the qualities that attended other estates holden by the same tenure. Bule on question as to custom of the country. On a question relative to the custom of tithing,(4) Lord Mansfield, C. J., after laying down the general rule, that "proof of the custom in one parish is not evidence to affect another parish," adds this qualification, " unless this custom is laid as a general custom of the . country." Thus, (1) Moulin V. Daliaon, Cro. Car. 484. (2) 3 Keb. 90, on trial at bar, explained by Bolfo, B., in Anglesea (Marq.) y. Hatherton i(Ld.), 10 M. & W. 246. (3) 1 Str. 662. See i^po Lowther v. Baw, Forteso. 44, 55 ; S. P., on appeal to the House of Lords from the judgment of Lord Talbot, C. | Ely (Dean and Chapter) v. Warren, 2 Atk. 189, a P. See also Rowe v. Parker, 5 T. R. 31 ; and Lord Bafclay's Case, Hale de Jure Maria, 36. (4) Furneaux v. Hutchings, 2 Cowp. 801. 8EC. III.] Evidence to he confined to Poirits in /s^we. 755 "where half of a riyer belongs, by tlie constant custom of tlie country, to th.e lords of the manors on each side qf the water, prpof of the custom in one manor is evidence of the same customary right in another.(l) It is evidence of a, custom pervading one common district of manors. If proof be giyen that,, in a particular manor, borough English or gavel- kind prevails, it may be shown what the customs of borough English or gavelkind are, from other manors.(2) Where in each of several sub-manors, part of the same district and be- longing to the same lord, there appeared to be a certain peculiar class of tenants answering the, same description, and to 'whom their tenements were granted by similar words, it was held, that evidence of the rights which had been enjoyed by the tenaiits of one manor, was admissible to show what rights the tenants were entitled to in another.(3) iProof of the manner in which a particular trade is carried on at one place, is evidence as, to the course of that particular trade in another place.(4:) Proofs of acta of ownership in other lands. In like manner, acts of ownership in one place may sometimes afford a legitimate presumption of the right of ownership in another. In an ac- tion of trespass, the plaintiff claimed the whole bed of a river flowing between his land and the land of the defendant, the defendant contending that each wgs entitled ad medium filum aquae : it was held, (5) that it was allowable for the plaintiff to give in evidence acts of ownership exercised by him upon the bed and banks of the river on the defendant's side lower down the stream, and where it flowed between the plaintiff 's land and a farm adjoining the defendant's land, and also to prove repairs done by the plaintiff to a fence which divided that farm from the river, and which was in continuation of a fence dividing the defendant's land from the river. It was said by, the court, that the acts of ownership in question might reason- ably lead to the inference, that the entire edge and bed of the river, and consequently the part in dispute, belonged to the plaintiff. In a previous case,(6) it had been decided in the Exchequer Chamber, upon a question (l),E.,v..Bllis, 1,M.,&,S,662. . (2) By Rolfe, B., in Anglesea (l^a,rq.) v., Hatheirtpn (Lord), ut sjipra. (3).Rowe V. Brenton, 8 B. & 0. 158. ,^^ee Ijhe obseryations of Lo.rd Abinger, 0. B., on this case, in Anglesea (Marq.) ,v. Hatherton, 10 M. & W. 237. The matter in dispute was neither a question of tenure nor of custpm, as ^o yrhioh some nice, distinctions are taken, by Fortesoue, j., in Somerset (Duke) v.: France, M mpra. As to evidence of .the, rights pf the crown in one wrt of the duchy .of; Lancaster, from proof of rights exercis^ed in anothpr part of the duchy, see Jer- vison V. Dyson, ,9 M. & TV. 540. As to .cuatpins,of,different|Ian^3,in. tjie, same manor, see Dame- reU V. Protheroe, 16 L. J. (if. S.) Q. B. 170. '" (4) Noble V. Kennoway, 2 Dpug.SlO. (6) Jones v. Williams, 2 M. & "W. 331, where the nature of this kind of evidence is explained by Parke, B. (6) Doe d. Barrett v.' Kemp, 2, Bjug. N. 0. 103. 756 Of the Relevancy of Presumptive Proofs. [CH. X. ■whether a piece of waste of land between a highway and inclosures be- longed to the plaintiff (the owner of the adjoining inclosures), or to the lord of the manor, that the lord might give evidence of grants by him of waste land terminating in a common, between the road and the inclosures of other persons at a distance from the spot claimed by the plaintiff; bat that such evidence must be confined to the waste adjoining the road which passed by the spot so claimed. (1) The case of Stanley v. White,(2) may here be mentioned as a leading authority upon the subject. It was an action of trespass for cutting down the plaintiff's trees ; and the question was whether they belonged to the plaintiff or the defendant. It appeared on the trial, that the trees in ques- tion grew in a woody belt of considerable extent, entire and undivided, which encircled the plaintiff 's manor, and lay contiguous to a number of closes belonging to several owners, one of which closes was that of the defendant. Evidence was admitted of several acts of ownership, in differ- ent parts of the belt, by those under whom the plaintiff claimed, which had been acquiesced in by the owners of the adjoining land. And the Court of King's Bench afterwards, on a motion for a new trial, adjudged the evidence to have been properly admitted, as evidence of the general right through the whole extent of such entire undivided inclosure, which might be presumed to have belonged formerly to one owner. This appears to be the true principle, on which the proposed evidence in that case was admissible. For, generally speaking, acts of ownership, submitted to by the holder of one portion of land, cannnot be proof that the person exer- cising them has any right to the adjoining land.(3) Though it is a general rule, that a custom of tithing, &c., in one parish will not be evidence of a custom in another, yet such an inquiry may sometimes be proper in cross-examination. Thus, in an action by a rector for tithes, where the point in issue is whether there exists a modus of a certain sum of money for a particular farm in a township within the parish, the defendant will not, in general, be allowed to inquire whether other farms in the same township are not subject to the same payment. But (1) See S. C, '7 Bing. 332, where a venire de nmio was granted, because the court considered that they could not assume that all the pieces of waste, with respect to which evidence was received, lay on the sides of a road or roads terminating in a large common. They were, how- ever, of opinion that evidence was admissible of grants of parcels of one and the same waste, lyuig on both sides of the road, although the continuity of the waste was interrupted for a short distance by the intervention of houses. The same principle is recognized in Tyrwhitt v. "Wynne, 2 B. & A. 554, where leases were rejected on account of no previous proof being given that the locus in quo was part of a larger district to which these leases apphed. And see Brisco v. Lomax, 8 A. & E. 211. (2) 14 Bast, 332. See also Bryan v. Winwood, 1 Taunt, 208 ; Hollis v. Goldfinch, 1 B. & C. 218. (3) See by Bayley, J., and Best, J., in Hollis v. Goldfinch, 1 B. & 0. 218, 222. As to proof of working part of mine being evidence of possession of whole, see Taylor v. Parry, 1 M. & G. 604. SEC. III.] Evidence to he confined to Points in Issue, 757 "where a modus is alleged on one side, it may be relevant on tlie other side to make an inquiry of this nature, for the purpose- of showing that such payments cannot be a modus, consistently with the evidence "which has been previously adduced. This "was adjudged to be admissible in the case of Blundell v. Howard.(l) The question there "was not put by the defendant "with a view of supporting the modus set up by him, but "was put by the plaintiff, in order to show that this and similar payments by the occupiers of different tenements "were merely portions of a sum in gross paid throughout the township by way of composition, and could not be a modus, since the ecclesiastical surveys, "which had been produced on the part of the rector, -were entirely silent as to any modus co-extensive "with the township .(2) Evidence of character. The character of the parties to a civil suit affords, in general, such a "weak and vague inference as to the truth of points in issue between them, that it is not usual to admit evidence of this description. Thus, in an ac- tion of ejectment by an heir at law, to set aside a will for fraud and impo- sition committed by the defendant,(3) witnesses cannot be examined to the defendant's good character. So, on the trial of an information against the defendant for keeping false ■weights,(4) where it was proposed to call "wit- nesses on behalf of his character. Eyre, C. B., ruled that such e"ndenoe "was not admissible in a civU suit. " The offence imputed is not," he said, ■" in the shape of a crime. To admit such evidence would be contrary to the true line of distinction, "which is this, that in a direct orosecution for a 7 7 X crime, evidence of character is admissible ;(5) but when the prosecution is not directly for the crime, but for the penalty, it is not. If evidence to character "were admissible in such a case as this, it would be necessary to try character in every charge of fraud upon the excise and custom-house laws."(6) (1) 1 M. & S. 292. See R. v. Stallard, 7 C. & P. 263; where an inc[uiry as to what other per- sons had said of the prosecutor became relevant on account of an inquiry respecting the prisoner's expressions concerning him. See Tennant v. Hamilton, 1 CI. & Pin. 122. (2) See Armstrong v. Hewitt, 4 Price, 216 ; and Leonard v. PrankUn, Id. 264. (3) Goodright d. Parr v. Hicks, B. N". P. 296 ; S. C, cited in Doe d. Stephenson v. "Walker, 4 Esp. 50. (4) Att. Gren. v. Bowman, 2 B. & P. 532, n. a. (5) In criminal cases, evidence of the general good character of the accused, having reference to the charge against him, is admissible in his behalf. See Janson v. Stuart, 1 T. R. 754; 2 Russ., Or. & M., by Greaves, 784. (6) Note 199. — The English cases go strongly to the exclusion of general pharaeter in a civil suit, unless it be in issue by the very nature of the action. Even in an action of slander for imputing a felony, and for a malicious prosecution, where the defendant justified on the record, averring a larceny, evidence of the plaintiff's good character was denied. But it does not appear that the defendant had attempted to support his justification. If he had, it ia conceived the evi- dence would have been receivable on the same ground which would make it admissible to repel the charge, on trial of an indictment. Cornwall v. Richardson, By. & Mood. N. P. Cas. 306. 758 Of the Relevancy of Presmhptive Proofs. [CH. X. Indeed, this case is treated, post, Tolume II, as presenting the offer of tto plaintiff to sus- tain his character merely because a justiBcation was put on the record. Where there is a plea of probable cause, followed by evidence in its support, in answer to an action for a malicious prosecution, the character of the plaintiff is directly in issue. He may of course prove his' good character ; and it is said the defendant may, in'the first instance, attack the plaintiff's character. This, of course, must be confined to cases where the crimfe in question is infamous: Gregory v. Thomas, 2 Bibb, 286. And see per Crenshaw, J., cited infra. It will readily be perceived that character may be brought into the issue in a variety of ways. This may be so not only in the common case of slander or hbel, where it is always more or less in question (Swift's Ev. 140, per Daggett, J. ; 1 Conn. Eep. 118);' and' as' we have just seen, in actions for nialicious prosecution or malicious arrest on the charge of a crime (see farther, post, and per Crenshaw, J., in Rogers v. "Wilson, 1 Alab. Eep. 410)'; but in' various other cases, owing to the peculiar object and incidents connected with the inquiry. Oases of criminal conversation, seduction and breach of marriage promise are familiar instances. See YoL II. ^o,iii some cases where the question is one of mere property. Where it was sought to prove that a will was obtained from a testator by the unfair practices of certain women, their bad character was allowed to be shown, it appearing that they had represented themselves as wdmen of good char- acter, and thus influenced the testator to make his wiU in their favor. Nussear v. Arnold, 13 Serg. & Rawle, 323. And in another case, where the testator was of weak mind, and entirely under the control of his son H., who had made representations to him tending to create the belief that whatever he might leave by wiU to his son M. would be squaiidered by his (M.'s) wif^, she- being unthrifty ahd extravagant ; and the testator had made a will nearly disinheriting M. ; on ail issue' to try the validity of the wiH between the two sons, the above facts being first shown, testimony was offered by M. and received by the court as proper, of his wife's general good char- acter and conduct. Dietrick v. Dietriok, 5 Serg. & Eawle, 201. So where the defendant and neighbors assembled and pulled down the defendant's house, into whicli the plaintiff had vexa- tiously obtruded himself, in trespass for liis injury, the defendant was allowed to prove in miti- giation of damages, that the plaintiff was a worthless vagabond, and was regarded as a nuisanse in the neighborhood, and that the house was pulled down to induce him to remove. Rhodes v. Bunch, 3 M'Cord, 66. So in trespass for killing the plaintiff's slave, to rebut the presumption of such iH conduct in the slave as would justify the defendant ; held, that the general good charac- ter and orderly deportment of the slave were admissible in' e'vfidence. Pierce v. Myrick, 1 Dev. 345. But aside from such exceptions, the rule is, that in civil suits the character of either of the parties is out of the question. Even on trial of an issue upon the adultery of the wife ; which was established by proof merely presumptive, in a proceeding by the husband to obtain a divorce, her fair character was refused as evidence in her favor. The court, by Daggett, J^ said: " The rule of law is, that in civil proceedings, unless the character of the party be directly put in issue, by the proceeding itself, evidence of his general character is inadmissible. Charges of cruelty, gross fraud, and even forgery, are often agitated in suits by individuals; and the result not unfre- quently deeply affects the property and reputation of the party ; yet no indi'vidual has been suf- fered to attempt to repel the proof, by showing a good reputation. The present is a civil suit. Character is not put in issue by the proceedicgs ; and if it can be given in evidence, it may also be given in evidence in all' inquiries into facts affecting the reputation in other civil cases. The principle would lead to great uncertainty ; and be productive of no benefit in the administration of justice. 'Formerly, e'vidence of the defendant's good character in criminal proceedings, 'was admitted in capital cases only, and that in favorem vitas ; but such evidence is now admitted in all cases where the character of the defendant is in jeopardy.' Cites 2 Stark. Ev. 365. "But the relaxation of the rule in criminal cases has not affected the rule in civil suits'." Humphrey V. Huinphrey, '7 Conn. Rep. 116, 118, 119. Accordingly, in trover for goods, where a fraud upon creditors by a colorable biU of sale was in question, and Mly made out by the usual presumptive proof, the general character of the par- ties to the bill for honesty, was denied as evidence. Woodruff v. Whittlesey, 1 Kirby, 60, 62. So the good character of the plaintiff in debt on bond, whore the defence was fraud in obtaining it. Anderson's Ex'rs v. Long, 10 Serg. & Eawle, 55. So, in an action for money had and re- ceived, though the plaintiff's evidence; as to the manner of obtaining it, impeached the character SEC. III.] Evidence (o.be confined to Points in Issue. 759 Where,, however, in a oiyil suit, character is a matter in issue, there the evidence of it ceases to be of a circumstantial nature, and there can be no objection to receiving it. Various questions, however, have arisen in civil suits as to the point, whether the character of the parties; or of a third per- son, was directly in issue or not. of the defendant's testatorj Nash v. Grilke8on,,5 Serg. & Bawle, 352. So, inianaotiou for, not shipping wine of the quality stipulated by the defendant. Kentland v. Bissett, 1 Wash. C. C. Rep. 144. So of the plaintiff's good or bad character in an action of assault and battery. Givens V. Bradley, 3 BVob, 195, 196. Nor in trespass quare domwm fregit, with intent to ravish the plaintiff's wife, can the defendant give her character in evidence to mitigate damages ; or to infer that he entered the house with her consent. Davenport v. EusseU,, 6 Day, 145, 148. In assumpsit by a.physioian for, his services, the, defendant cannot by evidence, attack, Ms general character in his profession (Jeffries v. Harris, 3 Hawks, 105) ; and held that in crim. con., the plaintiff's character (e. g. as a beastly drunkard) or the character of his house (e. j. as a low grog shop) was not in issue. Norton v. Warner, 9 Conn. Rep. 112. In no case is it allowable to adduce evidence in support of a party's character, until it has been impeached., Townsend v. Graves, 3 Paige, 463, 456,, 456. On a question,in Ubel, whether the Ethosian Glub, of which the plaintiff was a member, was an infidel club ;. held, -that its general reputation was not.relevant. Stow V. Converse,, 4 Conn. Rep. 1'7, 40 to 42. It was held that though the party's character be not ih issue; yet he having adduced evidence ia, its support, the opposite party may produce evidence in reply. Grannis v. Branden, 6 Day, , 2 60> In the state of New York, the general rule as to character in civil suits was,, at one time, slightly broken in upon. The Supreme Court held, some thirty years ago, that in actions for torts, especially such as charge gross depravity upon circumstances merely, evidence of uniform integrity and good character, is admissible to repel the charge. The misfeasance here imputed was coUusion between a naval officer and a belligerent, to cause a capture. Ruan v. Perry, 3 Cain. Rep. 120, 123. This decision is spoken of in terms of general approbation by "Walworth, C,,, in Towuaend v. Graves (3 Padge, 455) ; and, has been repeatedly acted, upon at, Nisi Prius, and byvery inteUigenl local courts, in a, broadel: sense than recent authoritative construction would seem to warrant. It, was. received by the late Tan Ness, J.,, in an action for a QonepiJiaay to cheat by misrepresenting the character of a third person (Eumsey Vi. Lovett,, Ant, N., P., Rep, IV,. 20, 21 ; but see note a to. that case); andbyi Biker, Recorder,, in an action of troverj impu- ting thei fraudulent exposure of the, plaintiff's rye,^ shipping on board of the. defendant's sloop (himself master) to capture,, by the Bulwark, a Bri.tisl3. seventy^four^ during th» late, waj. Gme» V. Aspihwall, Mayor's Court, N. T., Jan. term, 1816, I C. H. Rec. 11, 19. But the decision in Ruan v. Perry has been lately reviewed by the court where it was; made, who; have now adopted the English rule, as settled by the cases in the: test. They intimate that the admissioin: of geneiral character as evidence, in civil suits, must,, at most, be conSn^d to eases, Qf fiiaud depending for its support on slight circumstances ; and perhaps to cases of ofScial mistjom- duct. Accordingly, where a fraudulent valuation of a loss under a fire insurance poUQy,. was imipiited to the plaintiff (although as is known, such an imputation involves the charge of moral peijury conamitted by the assured in the preUmiinairy proofs), the, evidence of his good character which the judge at Nisi Prius received, was made the main ground for granting, a new trial The chief justice (Savage) expressly adopts the case of The Attorney General y. BowmaA, cited in the text, as the ground of decision. He adds, that a contrary rule, would be extremely dangerous; that the character of every transaction must be ascertained by its own circumstanfies, and not by tlie. character of the parties. Fowler v. The jEtna Fire Ina, Comp., 6, Cowen's Rep; 613, 615, S16. Thepraetitioner who looks to tto large caiendars of our law and, chancery cases; involving greater or less degrees of moral dereliction, wiU agree that inquiries into character, if tolerated in such suits, would be not merely useless or dangerous in the particular case, as sug- gested by Daggett, J., and Chief Justice Savage, but the evU would be enhanced by toeeoming interminable. 760 Of the Rehvancg of Presumptive Proofs. [CH. X In actions for adultery or seduction, the wife's or daughter's general conduct, if not their general character in regard to chastity, is involved in the issue, as affecting the damages; and accordingly, it seems that evidence of general bad character, or even of particular acts of immorality,(l) is admissible on the part of the defendant in such actions in reduction of damages.(2) But evidence of this description must be confined to a period antecedent to the defendant's alleged misconduct.(3) In such actions, where the defendant has endeavored to impeach the character of the wife or daughter, by general evidence, upon cross-examination, or by calling witnesses, general evidence of good character is admissible, in reply ;(4) but it may be doubted, whether the plaintiff in reply can give general good character in evidence, where the defendant's evidence has not been general, but has related to particular instances, especially where the impu- tations are made in the course of the daughter's cross-examination, who has therefore an opportunity of explaining them away upon reex- amination.(5) In actions for defamation, imputing specific misconduct to the plaintiff" general evidence of the plaintifif 's good or bad character is irrelevant, even though the defendant has pleaded a justification ;(6) and where no justifi- cation is pleaded, the plaintiff will not be permitted even to disprove the defamatory allegations. (7) (1) Teny v. Watkins, f C. & P. 308. (In aotiona for seduction, the relation of master and servant is the foundation of the action ^Bartley v. Eichtmeyer, 4 Comst. 38) ; and where the father (who in the case of an apprenticed chUd, cannot bring the action) sues, evidence cannot be given showing his bad character or the defendant's circumstances. Dain v. 'Wyooff, 3 Selden R. 191.) (2) Dodd V. Norris, 3 Camp. 519 ; Gardiner v. Tadis, 1 Selw. N. P. 25 ; Roberts v. MaJston, B. N. P. 296; Elsam v. Paucett, 2 Bsp. 563; Andrews v. Askey, 8 C. & P. 9. As to the hus- ■band's bad character, see B. N. P. 21 ; Bromley v. 'Wallace, 4 Esp. 23'7. And see as to the plaintiff's bad character in actions for breach of 'promise of marriage, Poulkes v. SeUway, 3 Esp. 236 ; Leeds v. Cook, 4 Id. 258 ; Irving v. Greenwood, 1 C. & P. 350. (As the plaintifif in such actions may recover smart money or vindictive damages, the circum- stances going to aggravate or extenuate the offence may be shown (Cook v. BUis, 6 Hill (N. T.), 466) ; not so where the action is brought expressly for loss of services. "Whiting v. Hitchcock, 4 Denio, 461. (3) Elsam v. Pauoett, uiswpra. Whether in actions for seduction it is necessary to cross-ex- amine the daughter as to specific acts of immorality before they can be proved on the part of the defendant, see Carpenter v. Wall, 11 A. & B. 803. Post, Vol. II, Of Evidence to impeach {he ■Credit of the opposite Party^s Witness. (4) Bamfleld v. Massey, 1 Camp. 460 ; Dodd v. Norris, 3 Id. 519. • ' (5) Ibid. ; Bate v. Hill, 1 0. & P. 100. See King v. Francis, 3 Bsp. 116. It maybe observed, that it is often impossible to give a satisfactory answer to u charge unexpectedly made, except by general evidence. See R. v. Clarke, 2 Stai-k. R. 242, where general evidence of character was received after the prosecutrix's character had been impeached upon her cross-examination. (6) Cornwall v. Richardson, R. & M. 305. (7) Stuartv. Lovell, 2Staric. R. 93. (Under the Code o£ New York, the defendant may plead and prove justification and facts tend- SEC. III.] Mndence to he confined to Points in Issue. 761 '■ But it seems still to be unsettled whether, in such an actidn, the defend- ant is at liberty to prove that reports were generally current that the plaintiff had been guilty of the alleged misconduct, for the purpose of lessening the damages, by showing that the defendant was not the origin- ator of the slander ;(1) at any rate, evidence to this effect will be admissi- ble where, at the time of uttering the words complained of, the defendant had referred to reports of the kind.(2) And where the defamatory matter imputes general misconduct to the plaintiff, and the defendant justifies, or contends that the alleged defama- tion was contained in a communication that was privileged, the plaintiff will be at liberty to give evidence of his general good conduct. Thus, in an action of libel upon a servant, who had lived in the defendant's service, imputing general dishonesty and misconduct to her, Lord Alvanley, C. J., permitted the plaintiff to call a witness, with whom the plaintiff had lived before going into the defendant's service, to speak to her general good character.(3) '' In action for malicious prosecution, &c. It seems, according to the later authorities, that evidence of the plain- tiff 's bad character is not admissible in an action for a malicious prosecu- tion,(4) or for felse imprisonment.(5) In criminal matters, evidence of the character of the complaining party frequently affords a material presumption in regard to the perpetration of offences. Thus, where the charge is tha.t of rape, or of an assault with an attempt to commit a rape, the general bad character of the prosecutrix -may, under the circumstances of particular cases, afford a just inference as to the probability of her having consented to the commission of the act for which the prisoner is indicted. Accordingly, upon the trial of indictments for such offences, evidence is admissible on the part of the prisoner, that the woman bore a notoriously bad character for ing to prove the truth of the defamatory words in mitigation of damages, though he fails in prov- ing a justification. Brisby v. Shaw, 2 Keman R. 61.) (1) See in favor of the affirmative, "Williams v. CaJlender, Holt N. P. R. 30Y ; Leicester (Lord) V. Walter, 2 Camp. 251 ; Bamer v. Merle, cit. Id. 253 ; Newsam v. Carr, 2 Stark. R. 10 ; KnoheU ,v. Puller, Pea. Ad. Ca. 139 ; v. Moore, 1 M. & S. 284 ; Moore v. Ostler, Rose. Bv. 398 (5th ed.) ; Hardy v. Alexander, Id. (both commented on in Richards v. Richards, 2 Mo. & E. •558) : — of the negative, Jones v. Stevens, 11 Pri. 235 ; Waithman v. Weaver, D. & R. N. P. 0. 10. (2) Richards v. Richards, 2 Mo & R. 551. (See also Dole v. Lyon, 10 John. R. 447. Such references to the author of the report may show the quo animo, and are admissible for that purpose (Taylor v. Church, 4 Selden E. 452) ; not so as to words spoken on another occasion. Howard v. Sexton, 4 Comst. 15T ; Root v. ■Lowndes, 6 Hill R. 518.) (3) King V. Waring, 5 Esp. 13. See also Fountain v. Boodle, 4 Q. B. 5. (4) The evidence was admitted by Lord Kenyon, C. J., in Rodriguez v. Tadmire, 2 Esp. 721; rejected by Wood, B., in Newsam v. Carr, 2 Stark. R. 10. (5) Downing v. Butcher, 2 Mo. & R. 374. 762 Of the BelevanCy of Fmsumptive Proems. [i3H; X. want of chastity and common decency ; and^ it is not necessary that, the wonlan should have been previously interrogated on the subject.(l) It £i.f»pears also, at least upon trials for rape, that' evidence is admissible that the woman had been before criminally connected with' the prisoner. But it' Seems that evidence of particular facts cannot, in general, be received to impeach' the chastity of the woman ; as, that, previously to the commis- sion of the offence, she had a criminal connection with, particular per' SGUs.(2) It was'held in one case^ that the woman, in a prosecution for rape, is not bound to answer questions to sueh facts as tend to criminate and disgrabe herself. (?) But it has been since held j, that she may be cross-exi- amined as to such mattersj(4) or as to her having had connection with the prisoner previously to the allegedrape ; (5) and if she deny the facts to- which she is cross-examined^ the prisoner may produce evidence to contradict her;(6) for such evidence isi not immaterial to the question whether the prosecutrix has? had. the particular intercourse with the prisoner against her consent.(7) Evidence as to good character of prisoner. In-triEils for felony and high treason, and in trials also for misdemeanors, where the direct object of the prosecution is to punish the offence, the prisoner is always permitted to call witnesses to his general character ;(8) (1)' R. V. Clarke,. 2 Stark. R. 244 (2) By Holroyd, J., in B. v. dlarte, ut supra. He also ruled,' that the woman's answers as to pEtrtioillar facte would be conolUsiTre ; but it is to be observed, that this' is' lireating the question sis' nlerelis* disci'editing tHe witness, and not as relevant to the issue. See Vol. II, Of the Examin- ation of Witnesses. And see R. v. Robins,, and R. v. Aspinall, infra. Perhaps it may be con- sidered that the question of the woman's chastity is not directly involved in the issue i^on such charges, as it is in actions for orim. con. and seduction. The determination of this question may, however, affbi'd a iHaterial' inference as to the truth of the charge'; and the alleged objection to the evideiaGS is in tome degree obviated by the' power, as in actions of seduction, of producing general evidence of good character in reply. . (3) R. V. Hodgson, R. & R. 211. See Vol. II, Of the Excmdnation of Witnesses. (4) R. V. Robins! 2 Mo. & R. 5112 ; R. v. Barker,, 3> G. & P. 589. (5) R. V. Martin. 6 C. & P. 662, where WiHiams,. J.,, expressly dissen-lied from the doctrine laid &)*Ti in R. V. Hodgson, ini which he had been oounsell And See C & P.. 590, n. (6)' ft. V. ASpinaJl, cit. 3 Stark. Ev. 952 ; K v. Robins, wt supra. (1) KoTE. 2<)0;-^I1! wouM' not be going too far, perhaps, to say that the- party injured by rape, 6t *n SSsa"ult #Ith intent, ftc, ulmghtbe sustained i'n her testimony by evidence of good charaoteT, eveit withoW any attempt being first made toi impeach it. Per Daggett, J.,, in. Tie State of Con- necticut V. Do Wolf, 8 Conn. Rep. 93, 100, 101. She being deaf and dumb, such testimony was received, without any previous effort to impeach, on trial for an. indictment for the assault.. Id. AM jer Daggettj J.f it would be allowed in favor of a sti'anger passing transiently through the ^at6. Id. {8} iTO'ffl 2Ol.-^0eneral character was allowed in evidence for the defendant on the trial foi a capital offence ; and per Parsons, 0. J., it is admissible for the defendant in all criminal prosecu- tions, which SewaU and Parker, J'.s, doubted. Commonwealth v. Hardy, 2 Mass. Rep. 311, 318. Itaa ittaj be encotmtered by evidence on the part of the prosecution ; but no evidence can be given against the defendant's good character, till he has put it in issue, by caHiug witnesses on his part. Per Parsons, C. J., in Commonwealth v. Hardy, 2 Massi Eep. 31 'I, 318. It was denied aEC. III.] Evidence to he confined to Points in T^sue. 763 and' in eTery case of doulit, proof of good^ charjicter -will be entitled to ^eat weight.(l) The inquiry as to the prisoner's general character ought manifestly to bear some analogy and reference to the nature of the charge that it is admissible In actions or informations for penalties ; biit'Said to be' confined to trials for crimes subjecting to corporal punishment. Per Judge Owsley, in GiTsna v. Bradley, 3 Bibb, 196. It is said by other authorities to be admissible in aU criminal ca^es where character is in jeopardy. 2 Stark. Ev. pt. 4, p. 365 ; adopted per Daggett, J., in Humphrey v. Huttiphrey, 1 Conn; Eep. 118, 119. Testimony cannot be given in reply, of conversalions heard since the' commenceinent of the prosecution, though they relate to the prisoner's character before the alleged crime. Carter v. The Commonwealth, 2 Tirg. Cas. 169. On tri^ of an indictment for keeping a disorderly house, proof is inadmissible, that the neighbors generally ooiflplainfed of it as disturbing them. It iS no more than general reputation of a disorderly house, -which is inadmissible. Commonwe'dltli v Stewart, 1 Serg. & Eawle, 342. (1) Note 202. — We had occasion, in a previous note (183), fuHy to consider tie conclusive effect of good character, when opposed to a case of larceny, resting on the prisoner's possession of the stolen goods — and that only. We shall not here repeat' the adjudibatiohs. They- ate in keeping -with other authorities, all Of which concur in the value of character, -when used in reply to presumptions which are not strong. See also anfe,, note 111. It was said by an Irish judge (Smith, B.), on trial for murder:— "Character is of great weight in every case, and requires particular attention when the charge is grounded on circumstantial e-vidence. It creates a greater degree' of doubt' than where the prosecution is stlpportdd by direct e-vidience. In the former case, character ought to be particularly attended to, because the jury is more or less embarrassed, and called upon to weigh the case with more scruple and' doubt, from the very nature of thoHestimony on the part of the cro-vvn." Rex v. Crawley, Dublin Oyer and Terminer, 40 Geo. Ill, Macnally's Bv. 6'? 9. Other authorities speak -with more diffidence. It "ought ne-ver to have' any weight except m a' doubtful case." 1 Stark, fiv. 35. Character cannot defeat the force of strong circumstances. Preeland's Case, before RadcUff, Mayor, Gen. Sess. N. T., 1 C. H. Rec. 82, 83. But the same learned judge allowed that it should overcome sUght evidence of scienter in a case of forgery. James's Case, N. T. Gen. Sess., Aug. 1816, 1 0. H. Rec. 132, 133. General good character has -weight in all cases where the facts are doubtful or admit of different interpretations. But wtiei'e the testimony is positi-ve and satisfactory to the jury, it cannot avail. Said on' a trial for murder, per Story, J., in United States v. Freeman, 4 Mason, 510 ; per Parsons, 0. J.,i in Commonwealth V. Hardy, 2 Mass. Rep. 317. Again; though the case be clear against the prisoner, yet charac- ter is admissible; but. Unless the evidence is dubious, or the testimony presumptive, general character is entitled to but little weight. The State v. Wells, 1 Coxe, 424, 429 ; per Savage, C. J., in The People v. Vane, 12 Wend. 82. It cannot aWaiyS avail agaiiiist a Cirotimstailtial iise, ■B^hich may sometimbs be so strong as to overcome' positive tleStiinony' (The' StruggK' ■?;■ tee United States, 9 Cranch, 71); but good character aloh^ Shoilld uniformly be Allowed to outwS-igh the mere testimony of an accomplice. Per Savage, C. J., in The People v. Vane, 12 Wend'. 82-. On the other hand, where the recorder, on a trial for grand' lareeAjf, charged that, froft thfe age ot the pri'soner, it was e-vident that h6 liiiisthave aequired a; chaSraielielf of sonie kiwd;- that if it -was good, it was in his power to have shown i^-; and his omission to 6ffer ahy evidence- on fhsrt p'oint, was a circumstance which ti^ jilry ought to consider as weighing strongly agaiTist him ; on error, this wa^ holden well The' te'stita'ony on the part of the prosecutioA -v*-as thait 6t sk axjcomplice. Sa;vage, C. J., said :-^'' Had th'e -witness' implicated seme rfeS{)eetabl6 citizen -frhosb character was above reproach, can there be a doubt that good character alorie would have been a perfect shield ? A man is not to be oonviotie'd of a crime because he KaS d bad' etaracter, or' no character; but, in cases like the present, character becomes important; and -where no sUbM evi- dence is produced, the presumption is it cannot be produced. The further inference iS, that the defendant is a nian of bad character, and -would liitu&Ily be associated -with such men aS ffie -vfitness." The People y. Vane, 12 Wend. T8, 82. 764 Of the Bekvancy of Presumptive Proofs. [OH. X. against him. On a charge of stealing, it would be irrelvant and absurd to inquire into the prisoner's loyalty or humanity ; on a charge of high treason, it would be equally absurd to inquire into his honesty and punctuality in private dealings. Such evidence relates to principles of moral conduct, which, however they might operate on other occasions, would not be likely to operate on that which alone is the subject of inquiry ; it would not afford the least presumption that the prisonet might not have been tempted to commit the crime for which he is tried, and is therefore totally inapplicable to the point in question. The inquiry must also be as to the general character : for it is general character alone which can afford any test of general conduct, or raise a presumption that the person who had maintained a fair reputation down to a certain period, would not then ■begin to act a dishonest unworthy part. Proof of particular transactions, in which the defendant may have been concerned, is not admissible as evi- dence of his general good character.(l) What, then, is evidence of general character? The best medium of proof is, by showing how the person stands in general estimation ; proof that he is reputed to be honest, is evidence of his character for honesty, and the species of evidence most properly resorted to in such inquiries. It frequently occurs, indeed, that witnesses, after speaking to the general opinion of the prisoner's character, state their personal experience and opinion of his honesty ; but when this statement is admitted, it is rather from favor to the prisoner than strictly as evidence of general character.(2) In cases where the intention forms a principal ingredient in the offence, a wider scope is allowed. On a charge of murder, for instance, the natural expressions of good will or acts of kindness on the part of the prisoner towards the deceased, are always considered important evidence, as show- ing what was his general disposition towards the deceased, from which the jury may be led to conclude, that his intention could not have been what the charge imputes. (3) (1) Note 203. — Nor in reply to such evidence; e. g. that the party has been guilty of seduction. Betts v. Lockwood, 8 Conn. Eep. 487, 488. Nor is what particular persons have said admissible ; nor what was learned on an inquiry in the neighborhood, set on foot for the purpose. Douglass v. Tousey, 2 Wend. 352. (2) See 31 How. St. Tr. 190, 310. Note 204. — Public opinion la the question, in common oases, where character is in issue. Per Parsons, 0. J., in Boynton v. Kellogg, 3 Mass. 192. Character is a term convertible with com- mon report. Per Gibson, J., in Kimmel v. Kimmel, 3 Serg. & Rawle, 337. Character and reputation are the same. Per Duncan, J,, in S. C, page 338. General character is the estimation in which a. person is held in the community where he has resided. Per Marcy, J., in Douglass v. Tousey, 2 Wend. 354. (3) Note 205. — On trial of an indictment for murder, in killing a trespasser, evidence for the prisoner, that he was in possession of land, and that the deceased was coming to commit a tres- pass, is admissible to show the state of feeUng existing between the parties; and the prosecution may give evidence, with the same view, that lawsuits were existing between the parties ; but the court will not inquire whether the suits were malicious, nor examine the title. The State v. SEC. III.] Evidence to be confined to Points in Issue. 765 Cross-examination of witnesses to character. It is not the practice to cross-examine witnesses to character, unless the prosecutor has some distinct charge to which to cross-examine the wit- ness,(l) or to make the calling of them a ground for addressing the jury on the part of the prosecution ; though the practice in these respects is not imperative, and, in particular instances, it may be deviated from with pro- priety.(2) It is expressly provided by the statute, 6 & 7 Wm. IV, c. Ill, that if upon the trial of any person for any subsequent felony, such person shall give evidence of good character, it shaU be lawful for the prosecutor, in answer thereto, to give evidence of a conviction of such person for a previous felony, and the jury shall inquire concerning such previous con- viction, at the same time that they inquire concerning the subsequent felony.(3) If a prisoner cross-examines the witnesses for the prosecution, as to his character, this is giving evidence within the statute, and the pre- vious conviction may be proved. (4) Evidence of bad character. Evidence will not be admitted, on the part of the prosecution,- to show the bad character of the accused person, unless he has called witnesses in support of his character ; and even then, the prosecutor cannot examine to particular facts, the general character of the accused not being put in issue, but coming in collaterally.(5) It would not be allowable to show on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offence as that charged against him. Thus, in a prosecution for an iafamous crime, an admission by the prisoner, that he had committed such an offence at another time, and with another person, and that he had a tendency to such practices, ought not. to be received in evidenoe.(6) In criminal cases, it is peculiarly the duty of courts of justice to pre- vent evidence being given which would support a charge against the pris- oner, of which he was not previously apprised, under the pretext of its affording some presumption as to the offence which is the subject of the in* Zellers, 2 Halat. 220, 230, 254. And on a trial for the murder of a slave, the prisoner was allowed to prove that the deceased was insolent and impudent to white persons. But the court admit that such evidence must he confined to the killing of slaves. State v. Tackett, 1 Hawks, 210, 21'?, 21*8. (1) R. V. Hodgkiss, 1 0. & P. 298. (2) Rules of practice in cases of felony, promulgated hy the judges in 1837. V C. & P. 6T6 ; E. V. Stannard, Id. SIS. That a right of reply is given as to the whole case, see R. Whiting, 7 0. & P. 771. (3) The object of this statute, as stated in the title, was " to prevent the fact of a previous con- viction being given in evidence to the jury in the case before them, except when evidence to character is given;" and its operation is limited to felonies not punishable with death. (4) B. V. Gadbury, 8 C. & P. 676. (5) Hurd V. Martin, Cowp. 441 ; cit. B. N. P. 296. (6) E. 7. Cole, Mich. Term, 1810, by all the judges, MS. 766 Of the Bekvancy of Presumptive Proofs. .[CH. s. dictment. In treason, therefore, no evidence is to be admitted of any overt act that is not expressly laid in the indictment. This was the rule at com- mon law : and it is again prescribed and enforced by the statute of Wm. Ill, which contains an express provision to that effect,(l) in consequence of some encroachments. that; had been made in several state prosecutions. The meaning of the rule is, not that the whole detail of facts should be set forth, but that no overt act, amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, nnless it be expressly laid in i the indictment ; but still, if it conduce to, the proof of any of the overt acts which are laid, it may be admitted as evi- dence of such overt acts.(2) With this view, the declarations of the pris- oner, and seditious language used by him, are clearly adrnissible in evidence, as explaining his conduct, and showing the nature and, object of the conspiracy.(3) And acts of treason, tending to prove the overt acts charged, though committed in a foreign country, may be given in evi- dence.(4) On the trial of an indictment for burglary and larceny, (5) it appeared upon the evidence, tha,t the prisoners might have entered the house before it was dark, and that they had not taken any part of the goods at the (1) 1 Wm. Ill, c. 3, § 8. (2) See Fost. Cr. L. 245, 246 ; R. v. Taughan, 13 How. St. Tr. 453 ; R. v. Deacon, 15 Id. 147 ; S. C, Fost. Cr. L. 9. (.3) R. V. Watson, 2 Sta;rk, R..134. (4) R. V. Deacon, 15 How. St. Tr. lil ; S. C, Fost. Cr. L. 10. Note 206. — It was held that breaking open the United States mail (a felony) was inadmissible, on trial of an indictment for a treasonable insurrection. The reason given, was, that this was a distinct crime, indictable and punishable separately, and indeed for which the prisoner was actually indicted ; though it seems to be conceded, in the same case, that had it been sho;syn, or offered to be shown, that this act was in furtherance of, or any way connected with the treason, it would have been receivable. U. States v. Mitchell, 2 DaU. 35'7. Abbott, 0. J., said, "he always understood that the ground of objection in Algernon Sidney's Case (3 Harg. St. Tr. 802), to the introduction lOf his private papers, was, not that the papers had never been published, but that they had no relation to the treasonable practices charged in the indictment." Rex v. Wat- son, 2 Stark. Rep. 140. In treason and felony, evidence may be given of the finding of articles secreted, although some time subsequent to the prisoner's apprehension. Papers found at the lodgings of a conspirator, at a period subsequent to the apprehension of the prisoner, may be read in evidence, although no absolute proof be given of their previous existence, where strong pre- sumption exists that the lodgings have not been entered by any one in the interval between the apprehension and the finding, and where the papers are intimately connected with the objects of the conspiracy as detailed in evidence. Rex v. Watson, 2 Stark. Rep. 137, 139, 140. But in searching any house other than the prisoner's, a paper found, in a trunk with a signatm-e of a person other than thq prisoner, and ,not addressed to him, is not evidence, unless it be proved that he was the owner of the trunk, or in some way connected with the paper. United States v. Craig, 4 Washj C. 0. Rap. 729, 731. After, proving an overt act of treason, in one county, eyi- dence may then be .given ,of an overt act of the same speciea of treason in another, to. show the quo animo;' though the overt act must be laid .in .theindiotmont as being in the particular county where the trial takes place. Reapublica v. Malin, 1 Dall. 33, 34, 35. (5) R. V. Vandercomb, 2 Lea. 0. C. 816; S. C, East P. C. 619. For disproving a prisonjer's alibi, proof admitted of acts done by lum, though criminal. E. v. Briggs, 2 Mo. & E. 199. SEC. III.] Evidence to he confined to Points in Issue. ,767 time when they were diseovered in the house, upon which the counsel fpr the prosecution proposed to give evidence of a larceny in the house, coni- mitted by the prisoners on a preceding day : but the court rejected the evidence, on the ground that it tended to prove a felony of a totally dis- tinct kind, which had no reference to the subject matter of the proseQution ; the prisoners were, therefore, acquitted on this charge, but were afterwards indicted for the other offence, and convicted. But although it is usual to confine the, prosecutor to one single afit ,pf felony, yet when ,the character of the particular, actcharged against the prisoner is to be collected from other acts done by him, all of them consti- tuting one entire transaction, or mutually explanatory of each other, it, is discretionary in the i judge to allow the prosecutor to go into the whole.(l) Thus, in a case of robbery, where .the prisoners came with a mob to the prosecutor's house, and one of them went up to the prosecutor, andcivilly advised him to give them something to get rid of them-^to show that thjs was not bona fi/^ advice, but in reality, a mode of. robbing the prosecutor, evidence was allowed to be given of other demands of money made by the same mob at other houses, at different periods of the same day, both before and after the particular transaction, when any of the prisoners w.ete present.(2) A case is cited by Lord EUenborough, C. J., (3) where a man (1) E. V. Ellia, 6 B. & C. 145, several purlomiags from a till ; E. v. Egerton, E. & E. SYS, an infamous accusation on the following evening; E. v. Hoggs, 4 C. & P. 364, other acts of adminis- tering poison to horses with intent to kUl them ; E. y. Moore, 2 0. & P. 236, acts of coining upon indictment for possessing instruments ; E. v. Long, 6 C. & P. 179, firing three ricks, for which there were separate indictments. For other cases, see 2 Buss., Or. & M.,, by Greaves, 172,. et seq. Note 207. — See note 206. And on trial of an indictment for receiving stolen goods, knowing them to be stolen, proof that other stolen goods were found in the defendant's house, for the re- ceiving of which, it, appeared, an indictment was also pending, was denied, without, anythipg being said of putting the prosecutor to his election. Bell's Case, before Eiker, Eecorder, 6 0. H. Eec. 97. And see Eex v. Smith, post, note 208. In another case of the same kind, evidence .of the prisoner iaving received other stolen goods of the same person from whom,.he received ihfi goods in, question, was , denied. K'Nifif's Case, before Eaddiff, Mayor, 1 C. H. Eec. 8. But op trial of an indictment for receiving several articles stolen, if they were received at different times, though the prosecutor may be put to his election of one out of the several instances, yet evidence may be given of them all, for the purpose of proving guilty knowledge, at least, of all prior to that upon which the prosecutor elects to proceed. Eex v. Dunn, Ey. & Mood. Cr. Cas. 146. Eeceiving goods '6f one person successively, gives a better chance to learn- the character in which he is dealing, than a single act of this kind ; a better chance to acquire that knowledge, which is the essential ingredient in the receiver's crime. It will readily be perceived, therefore, that where one offence cannot tend to fix the character of another, it is not admissible in evidence. Accordingly, on trial of a charge for stealing a watch, evidence that the prisoner had been guilty of another distinct larceny in stealing a cloak, is not admissible for any purpose. Walker v.'The Commonwealth, 1 Leigh's Eep. 574. The distmction is more fully illustrated in the modesf proving knowledge, &c., by different acts among dealers in counterfeit currency, notices of which nowimmediately follow in the- next notes. . • (2) E. V.' Wihkworthj 4 C' &' P.' 444, by^atrk, ' J., upon a special commission, after communi- cating with Lord' Tenterden, C. J., Alderson, J., and Taughan, B. (3) ' In' E. V. Wylie, 1 N: E. 92 ; S. C, 2 Leach, 985. See also E. v. Storyer, 2 Russ., Gr. & M., by Greaves, 775. 768 Of the Eehvancy of Presumptive Proofs. [CH. X; committed three burglaries in one night, and stole a shirt in one place and left it at another, and they were all so connected, that the court heard the history of the three. In like manner, where a robbery or larceny has been effected at the same time as a murder,(l) or rape, or arson,(2) or bur- glary,(3) the possession of the stolen property is constantly given in evi- dence against the accused upon his trial for the latter offences. And it will make' no difference that the substantive felony is the subject of another indictment.(4) But it must be shown that the criminal act which it is sought to give in evidence is necessarily connected with that which is the subject of the prosecution, either from some connection of time and place, or as furnishing a clue to the motive on the part of the accused ; otherwise the former will not be admissible. Thus, upon an indictment for stealing some pork, a bowl, and a loaf of bread, (5) it ap- peared that the prisoner entered the shop of the prosecutor, and ran away ; in about two minutes he returned, replaced the pork in a bowl, and took away the whole together ; in about half an hour he came back and took away the loaf. Littledale, J., ruled that the taking away the loaf could not be given in evidence upon that indictment. He thought that the taking the pork, and returning in so short a time, and placing it in the bowl, and running off with them together, must be taken as one continu- ing transaction ; but that the lapse of half an hour was too long to admit of that construction. The taking the loaf, therefore, was a distinct offence. Proof of other criminal acts to show intention. In offences which consist in the guilty knowledge or intention of a pris- oner, it is frequently necessary to examine into collateral facts, in order to arrive at a just conclusion upon a matter which must necessarily depend altogether on presumptive evidence. Thus, in a prosecution for uttering a bank note, bill, or promissory note, with knowledge of its being forged, proof that the prisoner had uttered tjther forged notes or bills, whether of the same kind or of a different kind,(6) or that he had other forged notes (1) See Wills on Ciroumstantial Evidence, '72, el seq. The memorable instance in the trial of Courvoisier, in 1840, for the murder of Lord William Russell, -wlII occur to the reooUeotion of the reader. (2) B. V. Rickman, 2 East P. C. 1035. (3) See R. v. Gould, 9 0. & P. 364. (4) R. v. Salisbury, 5 0. & P. 155; R. v. Rooney, 1 Id. 51'7. A different opinion formerly pre- vailed. See R. V. Smith, 2 0. & P. 633. (5) R. V. Birdseye, 4 C. & P. 386. (6) R. V. WyUe, 1 New Rep. 92; S. 0., 2 Lea. 985 ; R. v. Ball, 1 Camp. 324; S. C, R. & R. Or. 0. 132. That other forged notes of a different kind are admissible, though the subject of an- other indictment, see R. v. Kirkwood, 1 Lew. C. 0. 103 ; R. v. Hodgson, Ibid. See also R. v. Sunderland, Id. 102 ; R. v. Martin, Id. 104. The point was doubted in R. v. Millard, R. & R. 245, n. See Bayley on Bills (4th ed.), 450 ; R. v. Smith, 2 C. & P. 633 ; R. v. Long, 6 Id. 179. SEC. III.] Evidence to he confined to Points in Issue. 769 or bills in his possession,(l) is clearly admissible, as showing that he knew the note or bill in question to be forged. And on a prosecution for utter- ing counterfeit money, the fact of the prisoner having other counterfeit money upon him, or of his having uttered other pieces of money of the same kind, is, according to common practice, evidence of his having known In E. V. Ball (Mo. 0. C. 410), on an indictment for engraving the notes of a foreign prince, evi- dence of engraving the notes of another foreign prince was held admissible. (1) R. V. Hough, R. & R. 120 ; R. v. Rowley, Bayley on Bills, 447. The forgery of the other notes or bills must be distinctly proved ; and they ought to be produced (R. v. Millard, ut swgra ; R. V. Phillips, 1 Lew. C. C. 105) ; where the point was doubted, and the evidence received; the notes had been destroyed. It would seem that presumptive evidence of forgery^, as that the prisoner destroyed the note, ought to be received. Note 208. — Helm's Case, before Riker, Recorder, 1 C. H. Rec. 46, 47. And see per Woodbury J., in Lovell v. Briggs, 2 N. H. Rep. 223. The cases are uniform that evidence of uttering other spurious bills or notes of the same kind with the one in question on the trial, is admissible on the point of the prisoner's knowledge or intent in respect to the biU or note in question. And in one ease, on the trial of an indictment for uttering a biU of exchange, with a forged acceptance, the court inclined that the passing of a similar bill, even after the bill in question was passed, was admissible in evidence to show knowledge in respect to the first. Rex v. Smith, 4 Carr. &, Payne, 411. But in such case it should appear that the latter act is in some way connected with the former ; at least, the bill must be precisely similar ; so that it may be inferred that the latter was concocted at the same time and for the same fraudulent purpose. Rex v. Tavemer, Carr. Supp. p. 195, cited also in note a, to Rex v. Smith. The cases are not so confident that bills of a diiferent kind being passed by the prisoner, are admissible. Bayley on BiUs (Bostbn ed. 1826, p. 391), sets it down as questionable, though Le Blanc, J., in Rex v. Millard, Id. 396, note 54, thought they were; and The State v. Twitty, 2 Hawks, 248, stated post, holds this as to the possession of other notes. And see Quin's Case, post, note 209. Several other American eases appear to make no distinction ; but let in evidence of other utterings without regard to the similarity or dissimilarity. The State v. Van Houten, 2 Penning. Rep. 612, and the note at 614; Smith's Case, before Riker, Recorder, 1 C. H. Rec. 49. But see per Peters, J., in Stalker v. The State of Connecticut, 9 Conn. Rep. 343, who cites 3 Stark. Ev. 319, per Bayley, J., who said that on an indictment for forging and uttering a biU of exchange, evidence of a forged bank note in the pocket of the prisoner was not admissible. On trial for uttering a forged check on one bank, the uttering another forged check on another bank was received in evidence against the prisoner. Coffey's Case, before Colden, Mayor, 4 C. H. Rec. 62, 53,54; S. C, Judicial Repos. 293. The point was said by the mayor to be new, and the sentence suspended till the opinion of the Supreme Court should be taken. In the Judicial Repository it is said, on arresting the prisoner, several spurious checks were found upon him, which it was offered to produce ; and to show that he had passed several spurious checks dissimilar in atnount to the check in question; all of which was received in evidence. And see Lagrille's Case, before Riker, Recorder, June, 1823 (1 Wheel. Cr. Cas. 415, 416), where a similar point was reserved in respect to the prisoner having passed biUs unlike the one in question. On the whole, the decided balance of authority would seem to be in favor of receiving the evi- dence, whether the other bills, &c., be ejmdem generis or not. To warrant proof of passing other false bills, &c., they must be produced, or their non-produc- tion accounted for in the usual way, and the usual steps taken to let in secondary evidence (Helm's Case, before Riker, Recorder, 1 C. H. Rec. 46, 41), as by giving notice to the prisoner to produce them, and showing that they were in his possession and he neglected to produce them, or that they were destroyed by him. Lagrille's Case, before Riker, Recorder, June, 1823, 1 Wheel. Cr. Cas. 412, 414, 415, 416; Rex v. Millard, Bayley on BiUs (Boston ed. 1826), p. 396 not^54. Vaughan, B., refused to allow proof of uttering another note of the same description with that Vol. I. 49 770 Of the Relevancy of Presumptive Proofs. [GH. X. tliat the money, which he is charged with uttering, was counterfeit ;(1) and proof of the prisoner's conduct in such other utterings (as, for exam- ple, that he passed by different names), is, for the same reason, clearly ad- missible.(2) Such evidence, far from being foreign to the point in issue, is extremely material ; for the head of the offence charged upon the prisoner is, that he did the act with knowledge ; and it would seldom be possible to ascertain under what circumstances the uttering took place (whether in question, because an indictment was pending for the other act of uttering. Eex v. Smith, 2 Oarr. & Payne, 633, and see note 20'Z. But on a second trial for passing spurious bills, the passing others for which the prisoner was formerly tried and acquitted, may be received in evidence to show his knowledge, in connection with his conduct and the circumstances leading to and attending the former trial ; though, in con- sequence of the acquittal, such circumstances come with diminished force. Tingep'S- Cases, 5 0. H. Eec. 74, N. T. Gen. Sess. May 1, 1820, before Golden, Mayor; Bartow's Cases,'3 Id. 143, before the same judge, Sept. 1818; Smith and Dougherty's Cases, 4 Id. 166, before the same judge, N. T. Gen. Sess. Dec. 1819. State V. Petty, 1 Harp. Hep. 59, 61. AU the cases concur that, on trial of the charge of pass- ing counterfeit bills or notes, the fact that the prisoner had other similar bills or notesin his posses- sion, may be received as proof of knowledge or intent. The cases do not speak with so much, confident uniformity ; though, on the whole, they appear to be decisive, that dissimilar counterfeits may be shown to have been in his possession. Differ- ent acts and declarations of the prisoner in relation to other counterfeit bank notes, as circum- stances to show his acquaintance with bank notes in general, and hisskiUin ascertaining whether they were genuine, were offered against him and received, though it was objected that the others were dissimilar ; and several other distinct acts, in passing bad notes, were received in evidence ; and all with a view to infer the prisoner's knowledge. The State v. Twitty, 2 Hawks, 248, 258. And see Quin's Case, ;post, note 209. A large sum of counterfeit bills being found with the prisoner while out of the jurisdiction of the court, this was received in evidence against him. Van Houton's Case, before Eadcliff, Mayor, 2 C. H. Eec. 73. In this case, one bill was similar. The question was not raised upon the dissimilarity of the others ; but the objection was put on the ground that the biUs were found in New Jersey, out of the jurisdiction of the New York court. See Stalker v. State of Connecticut, cmte, per Peters, J., Ac, and S. C, post, note 209. To let in proof of the possession of other spurious bills by the prisoner, as collateral proof, the passing of the bill immediately in question must be first shown. Jones' Case, before Hiker, Recorder, and Irving, First Judge, 6 C. H. Kec. 86. (1) By Thompson, B., in R. v. Wylie, 1 N. R. 95 ; S. C, 2 Lea. 983. See 1 Euss., Cr. & M., by Greaves, 80, et seq. (2) See E. V. Millard, ui supra; E. v. Tattershall, cited by Lord Bllenborough, C. J., 2 Lea. 984. Note 209. — On trial of an indictment' for having kuovnngly passed a counterfeit Spanish milled dollar, the prisoner's admission that he had made other like dollars and passed them at fifty cents, even though connected with proof of opunterfeiting implements being found in his possession, appears once to have been denied, because the proof went to show a distinct offence. State V. Odel, 2 Const. Rep. 758, 759. But in a subsequent case, the finding of the implements on the prisoner, unaccompanied with any admission on his part, was received against him as proof of the quo animo ; and the objection that this went to prove a distinct crime was overruled. State V. Antonio, 2 Const. Rep. 776, 784, 791, 792, 797. It would seem, from a remark of Bay, J., at the page last cited, that The State v. Odel (swpra), is misreported. On trial of an indictment for having in. possession false coin with intent to pass it, evidence was received that the prisoner had in possession at the same time counterfeit bills. Quin's Case, before Eiker, Recorder, 6 C. H. Rec. 63, 64. But not that he had an engraved print, neither signed nor countersigned, it not appearing that it was a forgery. Stalker v. The State of Connecticut, 9 Conn. Rep. 341. SEC. III.] Evidence to he confined to Points in Issue. 771 from ignorance, or with an intention to commit a fraud), witliout inquiring into the demeanor of the prisoner in the course of other transactions. The more detached in point of time the previous utterings are, the less relation they wiU bear to that stated in the indictment ; and the question then "would be, whether the evidence is sufficient to warrant the inference of knowledge at one time, from such particular transactions at another time.(l) That may be thought a question to be left, in most instances, at least, to the jury. But whatever weight the evidence may have (which is quite another consideration), it is, in general, admissible ; not as evidence of another offence, but simply of another transaction in which the prisoner was engaged, affording a reasonable presumption as to his conduct with regard to the offence with which he is charged. It has been held that evidence of what the prisoner has said at a time collateral to a former uttering, to show that what he said at the time of such former uttering was false, is not receivable.(2) In like manner, upon an indictment for forging a bill 6f exchange, what a prisoner said respect- ing other bills which are not in evidence, is not admissible.(3) It may be thought that collateral evidence of facts, occurring soon after the offence with which a prisoner is charged, may sometimes afford as reasonable a presumption of guilty knowledge, as when the facts occurred at some time before the offence. Upon an indictment for uttering a bill with a forged acceptance,, knowing it to be forged, it was proposed to give in evidence other forged bills, precisely similar, with the same drawers' and acceptors' names, uttered by the prisoner about a month after the uttering of the bill mentioned in the indictment. Gaselee, J., after consulting Alexander, C. B., was disposed to allow the evidence to be received, but said that he would reserve the point for the opinion of the judges; upon which the counsel for the prosecution declined to press the evidence.(4) It is to be observed, however, that in this case the similarity of the notes showed that they originated with one person ; and, in an earlier ease of an indictment for uttering a forged bank note, where the prosecutors offered to prove the uttering of another forged note, five weeks after the uttering which was the subject of the indictment, the court (consisting of Lord Ellenborough, C. J., Thompson, C. B., and Lawrence, J.), held that the evidence was not admissible, unless the latter uttering was in some way connected with the principal case, or unless it could be shown that the notes were of the same manufacture.(5) (1) By Lord Ellenborough, C. J., in R. v. Wylie, 1 N. E. 94. (2) R. V. Phillips, 1 Lew. Cr. C. 105, 106. See R. v. Faber, T C. & P. 224 (3) R; v. Gooke, 8 C. & P. 586. (4) R. T. Smith, 4 C. & P. 411. (5) R. V. Tavemer, 4 0. & P. 413, n. On a charge for sending a threatening letter, or of pub- lishing a libel, acts done by the prisoner subsequently to the offence charged, are admissible to show the am/mm. See in/ra. In like manner, i subsequent felonies have been given in evidence 772 Of the Relevancy of Presumptive Proofs. [CH. X. Upon otlier proceedings, besides prosecutions for forgery, or the titter- ing of forged notes or counterfeit coin, it is frequently material to give evidence of other acts, though not in issue, in order to raise a presump- tion as to the intent of the prisoner in committing the act for which he is indicted. Thus, upon an indictment for maliciously shooting, evidence was allowed to be given, that the prisoner, about a quarter of an hour before the shooting with which he was charged, intentionally shot at the prosecutor, (1) the whole being one continued transaction in the prosecu- tion of the malicious intent of the prisoner. So, on a charge for sending a threatening letter, other letters written by the prisoner, both before and after that for which he is indicted, may be read in evidence, for the pur- - pose of exp]anation.(2) And, in like manner, in actions or indictments for libel or slander, it has been held that other writings or words, whether in themselves actionable or not,(3) may be given in evidence, occurring both before and after the subject of the action, in order to show the animus of the defendant.(4) Upon an indictment for receiving stolen goods, which had been all stolen at the same time, but received at different times, the prosecutor was put to his election of some particular act of receiving ; but it was held, that evidence might have been given of the prisoner having in his pos- session, and of having pledged and disposed of, other articles of the stolen property, in order to show his guilty knowledge, as all the property had been stolen from the same persons, and had been brought to the prisoner by the party indicted with him for the theft.(5) ' Proof of other criminal acts, in prosecution for conspiracy to cheat. On an indictment against several prisoners, for a conspiracy to carry on the business of common cheats, proof is admissible that the prisoners at a different time made similar representations to other tradesmen besides those named in the record, (6) cumulative instances being necessary to to explain a preceding one. See R. v. Bgerton, R. & R. 3T6 ; and R. v. Winkworth, 4 0. & P. 444; Supra, p. 161. (1) R. V. Yoke, R. &. R. 531. (2) R. V. Rohinson, 2 East P. 0. 1110; S. C, 2 Lea. 1i%. (3) RusteU V. Maoquister, 1 Camp. 49, n; Pearson v. Lemaitre, 6 M. & G. '?00, where Pearoe V. Ormsby, 1 Mo. & R. 465, and Symmons v. Blake, Id. 477, are questioned. (4) Charlter v. Barrett, Peake R. 22 ; R. v. Pearoe, Id. 75 ; Mead v. Daubigny, Id. 125; Lee V. Huson, Id. 166 ; Stuart v. Lovell, 2 Stark. R. 93 ; Chubb v. Westley, 6 C. & P. 436 ; Plunkett v. Oobbett, 5 Esp. 136 ; M'Leod v. Wakley, 3 C. & P. 311 ; Delegal v. Highley, 8 Id. 444 ; Bar- well V. Adkins, 1 M. & G. 807. As to proof of collateral matters in actions for malicious prose- cution, to sliow malice, see Caddy v. Barlow, 1 M. & R. 275. (5) R. V. Dunn, 1 Moo. C. C. 1J6. The report contains a marginal note, that the evidence had been confined to acts previous to that on which the prosecutor had elected to proceed. The same point has occurred in respect of utterings subsequent to that for which a prisoner is indicted. See further R. v. Hinley, 2 Moo. & R. 524 ; R. v. Mansfield, Car. & M. 140. (6) R. v. Roberts, 1 Camp. 400. See also R. v. Steel, Car. & M. 337. Note 210. — Such evidence is equally applicable to indictments or actions for a fraud resulting SEC. III.J Evidence to he confined to Points in Issue. 773 prove the offence. The same sort of evidence is allowed in a prosecution for barratry, and, as before mentioned, in prosecutions for the greatest of all offences, high treason. The same kind of proof is constantly admitted in trials for murder ; where former grudges and antecedent menaces are evi- dence of the prisoner's malice against the deceased. (1) Rule as to conspiracy and riot. On the trial of an indictment against several persons for a conspiracy in unlawfully assembling for the purpose of exciting discontent and dis- affection, it would be irrelevant to inquire, on behalf of the defendants, what the conduct of those employed to disperse the meeting may have been at the time of the dispersion, if no evidence has been previously offered on the part of the prosecution as to the conduct of the meeting at that time or subsequently ; for the conduct of the dispersers of the meeting can have no bearing on the intention and object of the meeting itself; in other words, it is irrelevant to the matters in issue.(2) In such a prosecu- tion, as the material points for the consideration of the jury are, the general character and intention of the assembly, and the particular case of each defendant as connected with that general character, it would be relevant to prove, on the part of the prosecution, that bodies of men came from different parts of the country to attend the meeting, arranged and organized in the same manner, and acting in concert. It would be relevant also to from a conapiraey among seTeral. This, and the like, has often been held in private suits. Thus in an action for obtaining goods by giving a false credit to A., evidence that the defendant had represented him as- credit-worthy to persons other than the plaintiff, was received. Rumsey v. Lovett, Anth. N. P. Rep. 17. And the several oases of Beal v. Thatcher, Gardner v. Preston, and AUison v. Matthieu, stated ante, are to the same effect. See also per 'Woodbury, J., in LoveU V. Briggs, 2 N. H. Rep. 223. The same kind of testimony is uniformly received in our courts, on trials of indictments for conspiracy. The object of it is to show the quo a/ni/mo. Hitciioock's Case, before Riker, Recorder, 6 C. H. Reo. 43, 44. In a note at p. 4, the Recorder stated, in passing sentence, that the question had been submitted to and passed upon by Spencer. C. J., after examining the authorities. The same point was resolved in The People v. Bleecker et al, before Riker, Recorder (2 "Wheel. Or. Gas. 256, Nov. 1823). So, on trying whether a sale of a wagon by a debtor to 6., who sold it to C, the debtor's brother-in-law, who loaned it to the debtor, was fraudulent in respect to a creditor, the latter was allowed to prove that about the same time the debtor sold a farm, saying that 0. would give the deed, who did so, and received pay in goods, which he delivered to the debtor. Benham v. Crary, 11 "Wend. 83. Indeed, where the party acts alone in his endeavors to defraud, the same doctrine is equally applicable. This was held in replevin for a horse, which the buyer had obtained by falsely re- presenting himself as a man of credit. Similar representations, and obtaining goods from others about the same time, in the same town, were received as evidence of a general plan to amass property by fraud. And this was held especially admissible, as it was sought to connect him with the' defendant as fraudulently claiming, under the buyer, the horse and other property obtained pursuant to a general plan in which both were connected. M'Kenney v. Dingley, 4 Greenl. 172. (See also Gary v. Hotailing, 1 Hill R. 311; and Murfey v. Brace, 23 Barb. 561; and Bronson v. Wiman, 4 Selden, 182.) (1) The People v. How, supra; 1 'Wheel. Or. Gas. 412. (2) E. V. Hunt, 3 B. & A. 566, 677. \ 774 Of (he Eelevancy of Presumptive Proofs. [CH. X. sho-w, that early on the day of the meeting, in a spot at some distance from the place of meeting (from which very spot a body of men came afterwards to the place of meeting), a great nnmber of persons, so or- ganized, had assembled, and had there conducted themselves in a disloyal, riotous, or seditious manner.(l) Further, it would be relevant, on such a trial, to produce in evidence certain resolutions, which had been proposed by one of the defendants, at a large assembly very recently held in another part of the country, for the same professed object and purpose as were avowed by the meeting in question, and that the defendant acted at both meetings as president or chairman ; in a question of intention, as this is, it would be most clearly relevant to show against that defendant, that at a similar meeting, held for an object professedly similar, such matters had passed under his immediate auspices.(2) Upon trials of indictments for offences involving a charge of conspiracy, much evidence is usually produced, which does not relate to the particular conduct of a prisoner. Such evidence, however, is not necessarily of a presumptive nature. Thus, it is usual to' give general evidence of a con- spiracy previously to showing the connection of the prisoner with it.(3) It has been seen, in treating of hearsay evidence, that the acts and declara- tions of other conspirators in the absence of the prisoner are admissible against him ;(4) it has been seen also, in treating of admissions, that the pris- oner may be affected by writings from other persons, which came into his custody before his apprehension.(5) In these cases, however, the evidence is of a direct nature, applying to the acts in furtherance of a conspiracy, and not circumstantial as proving only collateral circumstances from which these acts are to be inferred. Acta and declarations of prisoner, when evidence for him. As in trials for conspiracies, whatever the prisoner may have done or said, at any meeting alleged to have been held in pursuance of the con- spiracy, is admissible in evidence against him, on the part of the prosecu- tion ; so, on the other hand, any other part of his conduct at the same meetings will be allowed to be proved on his behalf: for the intention and design of the party, at a particular time, are best explained by a com- plete view of every part of his conduct at that time, and not merely from the proof of a single and insulated act or declaration. In the case of "Walker and Others, (6) who were tried for a conspiracy to overthrow the government, evidence having been produced, on the part of the prosecu- (1) R. V. Hunt, 3 B. & A. 513, 5T4. (2) Id. 668, 511. (3) The Queen's Case, 2 B. & B. (4) Supra, Chap, t. Sect. 1. (5) Supra, Chap, t. Sect. 10. (6) 28 How. St. Tr. 1131. And see 31 Id. 43. SEC. III.] Evidence to he confined to Points in Issue. 775 tion, to show that the conspiracy existed and was brought into overt act at meetings in the presence of Walker, the counsel for the prisoners were allowed to ask a witness whether, at any of these times, he had heard "Walker utter any word inconsistent with the duty of a good subject ? The ques- tion was opposed, but held by Heath, J., to be admissible. The prisoner's counsel were also allowed, in the same case, to inquire into the general declarations of the prisoner at those meetings ; as, whether the witness had heard him say anything that had a tendency to disturb the peace of the kingdom ; and questions to the same effect were put to many other witnesses in succession. The question, in the case last cited, was expressly confined, and so re- quired by the court to be, to the conduct of the prisoner at those particu- lar meetings, which had been previously inquired into on the part of the prosecution. Proof of what the prisoner might have said or done 3.t other meetings, or at other times, unconnected with the transactions proved against him, would not have been admissible evidence in his favor. In Lord George Gordon's Case,(l) a witness was asked by the prisoner's counsel, on cross-examination, as to a statement made by the prisoner, on the night before a meeting in St. George's Fields, and with respect to which meeting much evidence had been produced. This was objected to; and the court decided that the question was not regular. Lord Mansfield, C. J., held, that as the counsel for the crown had given evidence of what the prisoner said at the meeting upon the 29th of May, the counsel for the prisoner might show the whole connection of what the prisoner said besides at that meeting ; but that they could not go into evidence. of what he said on the antecedent day. And in Hanson's Case,(2) on a charge for promoting a riot, the counsel for the prisoner was not allowed to prove what he had said privately to a friend, previously to his going to the place of riot, respecting his motive in going thither. Many other cases might be cited to the same effect. The rule on this subject appears to have been extended much beyond the line here laid down, on the trial of Home Tooke.(3) In that case, several pubhcations were given in evidence, on the part of the crown, containing, as was alleged, republican opinions, which- had been distributed by the prisoner during the period assigned for the existence of the con- spiracy ; and this evidence was much relied on, as showing that the notion of a reform, which was expected to be set up by the prisoner in his de- fence, was a mere pretext to cover treasonable designs : to repel this con- clusion, the counsel for the prisoner offered in evidence a book, which had been written by the prisoner twelve years before, on the subject of par- liamentary reform : the evidence was objected to, as having no relation (1) 21 How. St. Tr. 642. (2) 31 How. St. Tr. 4281. (3) 1 East P. 0. 61; Gumey's Eeport of S. C, Vol. 2, 36; 25 How. St. Tr. 345. 776 Of the Eelevaucy of Presumptive Proofs. [CH. X. "with tlie particular transaction in question, and because tlie prisoner's opinions, whatever they were formerly, might have afterwards changed. But Eyre, C. J., said, that the question was not whether this book had a reference to the conspiracy charged, but whether it had not reference to the proof given in support of the charge ; and he thought it evidence to rebut the supposition, that the reform of Parliament was a pretence made by the prisoner. The book was accordingly received in evidence. There is great authority, however, for doubting whether such evidence would, on revision, be considered strictly admissible.(l) It seems, indeed, reason- able, if some other acts of the prisoner, besides those charged in the indict- ment, are proved against him for the purpose of showing his design in the affair in question, that he should be allowed to explain those acts by proof of other cotemporaneous particulars of his conduct, which show that he had a different design from that imputed to him. But this limitation (namely, that such other particulars, offered in evidence by the prisoner, ought to be cotemporaneous with those proved on the other side, or, at least, confined within the same limits to which the evidence on the part of the prosecution is subject), appears to be just and necessary ; for other- wise the prisoner would be at liberty to take the whole range of his life, in the course of which, his character and his designs may have undergone a complete change.(2) In Hardy's Case,('3) great liberty was allowed to the counsel for the prisoner in examining into particulars of his conduct, even into his specu- lative opinions ; and perhaps it may be questionable whether the rule was not carried to its utmost extent in that case. The question there put to the witness was this : whether, from his personal acquaintance with the prisoner, he had ever heard him state what was his plan of reform ? The question was objected to. The overt act charged was that the prisoner, for the purpose of accomplishing the treason of compassing the king's death, did conspire with others to call a convention of the people, in order that the convention might depose the king ; and the counsel for the pris- (1) See the observations on this point hy Lord Ellenhorough, 0. J., in R. v. Lambert, 31 How. St. Tr. 355 ; S. C, 2 Campb. 400. In that case, which was an information for a libel in a news- paper, it was held that the defendant had a right to have read in evidence any extract from the same paper connected with the subject charged as Ubelous, although disjoined from it by extra- neous matter, and printed in a different character. (2) R. V. Abraham, 2 O. & K. 550, may be referred to as an example of this limitation. The prisoner was indicted for burglary. The prosecutor's shop had been broken open, but the only evidence to connect the prisoner with the offence was that some of the stolen property was found in his possession. The defence at the trial was that he had found it, but it was unsupported by evidence ; and Alderson, B., said, that if it had appeared that before suspicion attached to the prisoner he had given this account of his possession of the property to his neighbors, the property being there at the time, and before' search made, he had not the sKghtest doubt that, vateat quantum, this would have been very competent for the prisoner. (3) 24 How. St. Tr. 1065—1093. See trial of O'Coigly and O'Connor, 21 Id. 31, and 31 Id. 189, 310. SEC. IV.] Evvhnce to he confined to the Points in Issue. Til oner submitted, tliat for the purpose of showing that the convention was intended to be held, not with the design imputed by the indictment, but with an innocent design, they might go into evidence of what the prisoner had at other times declared, inasmuch as the counsel for the prosecution had gone into all that the prisoner had, at any part of his life, declared touching this fact, and had gone also into evidence of what other members of the corresponding societies had said. They then defended the question by an able argument, in the course of which several cases were cited from the state trials ; particularly the case of Lord Russell (the one which came nearest in principle to that under discussion), where the charge against the prisoner was for compassing the king's death, and the overt act was consulting to raise rebellion and seize the king's guards ; and Lord Eus- sell, in his defence, called many witnesses to speak to his affection towards the government, and his detestation of risings against it ; some of the witnesses gave evidence of his conversations and sentiments on this sub- ject, showing his aversion to all risings of the people ; Dr. Burnett and Dr. Cox, in particular, spoke fully to this point, and without any objec- tion either from the court or from the counsel for the prosecution. After the question had been argued at some length, Eyre, C. J., is reported to have thus addressed the prisoner's counsel :(1) " I do not know whether you can be content to acquiesce in the opinion that we are inclined to form upon the subject, in which we go a certain way with you. Nothing is so clear, as that all declarations which apply to facts, and even apply to the particular case that is charged, though the intent should make a part of that charge, are evidence against a prisoner, and are not evidence for him ; because the presumption upon which declarations are evidence, is, that no man would declare anything against himself, unless it were true ; but that every man, if he were in difficulty, or in apprehension of any diffi- culty, would make declarations for himself. Those declarations, if offered, as evidence, would be offered, therefore, upon no ground which entitles them to credit. That is the general rule. But if the question be, what was the political speculative opinion which this man entertained touching a reform of Parliament, I believe we all think that opinions may very well be learned and discovered by the conversations which he has held at any time or in any place." The question afterwards put to the witness was, whether, before the time of the convention which was imputed to the prisoner, he had ever heard from him what his objects were, and whether he had at all mixed himself in that business ; and, in answer, the witness stated what he had heard from the prisoner respecting his plan of reform.(2) (1) 24 How. St. Tr. 1094 (2) 24 How. St. Tr. 1097. Another question, which is stated to have been put by the pris- oner's counsel to one of the witnesses, and allowed to be answered, was, as to what the prisoner 778 Of Evidence in Matters of Opinion, [CH. X. SECTION IV. Of Evidence in Matters of Opinion. In connection witL the subject now under discussion may be considered tbe question how far the opinion of a witness is admissible in evidence. Opinion admissible in matters of sltill. Generally speaking, a witness must speak to facts, and his mere opinion is not evidence. But upon questions of skill or science, men who have made the subject matter of inquiry the object of their particular study are competent to give their opinions in evidence.(l) Such opinions, however, are to be deduced from facts that are not disputed, (2) or, at least, from facts that are in evidence before the jury ; they need not, however, be founded upon their own personal knowledge of such facts, but may be formed upon the statement of facts proved by. others. Thus, the opinions of medical men are evidence, not only as to the state of a patient whom they have seen ; or as to the cause of the death of a person whose body they have examined ; or as to the nature of the in- strument causing wounds which they have inspected ;(3) but also in cases where they have not themselves seen the patient, and have only heard the symptoms and particulars of his state detailed by other witnesses at the trial ; their opinion on the nature of such symptoms is always ad- mitted. Thus, in prosecutions for murder, they are -allowed to state their opinion, whether the wounds or injuries, described by other witnesses, were likely to be the cause of death.(4) So, upon a question of sanity. had declared to be the object of the corresponding societies. This question was not opposed. Ibid. p. 1101. I (1) See by Lord Mansfield, 0. J., in Polkes v. Chadd, 3 Doug. 157, 159; by Lord Ken yon, C. J., in Chaurand v. Angerstein, Peake R. 44. And see 1 Smith Lea. Ca. 286. As to the course adopted in equity, on such occasions, see "Webb v. Manchester and Leeds Railway Co., 4 Myl. & Cr. 120. Moorehouse v. Mathews, 2 Comst. 514; Price v. Powell, 3 Id. 322; Joy v. Hopkins, 5 Denio, 84; 4 Barb. 256, 261, 614; Crawford v. Andrews, 6 Geo. 244; Steamboat Clipper v. Logan, 18 Ohio, 375 ; Pickard y. Bailey, 6 Foster (N. H.), 152 ; Hobby v. Dana, \1 Barb. N. T. Ill ; Com- monwealth v. Wilson, 1 Gray (Mass.) SSt ; 19 Barb. 338; Reed v. The People, 1 ParkerC.R.481. (2) See by Lord Mansfield, C. J., ut supra. (3) See Burnet on the Criminal Law of Scotland, p. 458. * So a physician who has made a post morlem examination may state the cause of death, and whether the deceased had been pregnant (The State v. Smith, 32 Maine R. 369) ; or the deriva- tion and nature of the disease causing death (Jones v. White, 11 Humph. 268); or of the disease in question. Lush v. M'Daniel, 13 Ired. 485; Reed v. The People, supra; Lake v. The People, 1 Parker C. R. 495 ; S. C, 2 Kernan R. 358. (4) See R. v. Shaw, 2 Russ., Cr. & M., by Greaves, 924, 925 ; where contradictory evidence of this nature was given. The recent case of Thomas Drory, tried and convicted at the Essex Spring Assizes, 1861, is another example. See Amerioain cases cited in last note. SEC. IV.] In Matters of Skill. 779 tliey may form their judgment from the representations "which witnesses at the trial have given of the conduct, manner, and general appearance exhibited by the patient ; or they may give their opinion whether certain circumstances were likely to produce a paroxysm of the disorder. (1) But they cannot be asked to state their opinion, upon the very point which the jury have to decide, namely whether the act, for which the prisoner is being tried, was an act of insanity. (2) In Folkes v. Chadd,(8) which may be considered as one of the leading cases upon this subject, where the question was whether a bank,- which had been erected for the purpose of preventing the overflowing of the sea, had caused the choking up of a harbor, it was held that the opinions of engineers, as to the effect of such an embankment, were admissible. So a shipbuilder may state his opinion as to the seaworthiness of a ship, from examining a survey which had been made by others, and at which he was not present.(4) In like manner, in an action for a nuisance, an architect, acquainted with the particular locality, may be asked if the nuisance com- plained of depreciated the value of the houses in the neighborhood.(5) And a London stockbroker is a competent witness as to the course of busi- ness of London bankers.(6) . (1) E. V. Wright, E. & E. 456 ; E. v. Searle, 1 Moo. & E. tS. Lake v. The People, supra; a physician may give an opinion on a supposed state of facts; but if he has not heard the whole evidence in a case, he cannot give an opinion founded on what he has heard. 2 Kernan, 358. If the facts are not disputed, he may give an opinion founded on them; not so where they are disputed. U. States v. M'Glue, 1 Curtis Ot. Ot. 1. (2) E. V. M'Naghten, 10 CL & Fin. 200, 211; S. C, 8 Soott N, R. 595; 1 C. & K. 135, 136; E. V. Wright, ui supra, 2 Kernan, 358. (3) 3 Doug. 15V ; S. C, cit. by Buller, J., in Goodtitle d. Eevett v. Braham, 4 T. E. 498. (4) Thornton v. The Roy. Exch. Ass. Co., Peake, 25 ; Beckwith v. Sydebotham, 1 Camp. IIY. So a seafaring man, familiar with the proper mode of stowing a given cargo, may give his opinion whether the cargo in question was properly stowed (Price v. Powell, 3 Comat. 322); and an engineer, builder or master, may, after looking at a boat injured by collision, give an opinion as to the direction from which the blow came (Steamboat Clipper v. Logan, 18 Ohio, 315) ; to prove value of a vessel or damages to it, the witness need only be acquainted with the value and such matters as affect it. Sikes v. Pame, 10 Ired. 280. On a question of science, a witness who is not a scientific man cannot give an opinion as an expert (Lincoln v. Barre, 6 Cush. 590) ; but he may give an opinion if he really have knowledge (Pickard v. Bailey, 6 Poster N. H. 152) ; so on a question of skill, or skill and science. Lush v. MoDaniel, 13 Ired. 485 ; McLean v. The State, 16 Ala. 672; Luning v. The State, 1 Chand. (Wis.) 178. Nor can an expert give an opinion on subjects of general knowledge. Concord Railroad v. Greely, 3 Poster QS. H.) 237. As to who are experts, see Cook v. Parham, 24 Ala. 21 ; Brantley v. Swift, Id. 390 ; Stein v. Bruden, Id. 130 ; Hartford Pro. Ins. Co. v. Hanner, 2 Ohio (N. S.) 452 ; 17 Barb. Ill ; and Wig- gins V. Wallace, 19 Id. 338. (5) Gauntlett v. Whitworth, 2 C. & K. 724. So on a question as to the damage caused to a garden, plants, fruit trees and shrubs by the burning of a brick kiln near it, a gardener may give his opinion. Vandine v. Burpee, 13 Met. 288. (6) Adams v. Peters, 2 0. & K. 723. 780 Of EvideTice in Matters of Opinion, [CH. x. Persons who are acquainted with the character of ancient handwriting, may give their opinion as to the date of an ancient document,(l) or as to whether it is genuine or a forgery.(2) In like manner, where the question is whether a seal has been forged, seal engravers may be called to show the difference between a genuine impression and that supposed to be false.(3) In prosecutions for forging, or uttering forged bank notes, or uttering counterfeit money, the opinion of a clerk of the bank, or of an officer connected with the mint, is invariably resorted to. So the opinion of an artist in painting, is evidence as to the genuineness of a picture. And, upon questions as to the infringement of copyright in a piece of music, the opinion of musical men is constantly given in evidence as to whether the piece alleged to have been pirated is original, or as to how far the alleged piracy is an imitation. The genuineness of a post-mark upon a letter is best proved by persons from the post-office at which it was stamped ; but the evidence of persons who are in the habit of receiving letters from that office is also admissible.(4) Upon an indictment for uttering a forged bill, which it was suggested had been written over pencil marks that had been rubbed out, it was held that the evidence of an engraver, who had examined the paper with a mirror and traced the pencil marks, was admissible. (5) This, it is to be observed, was rather a question of fact than of opinion, as the jury, with the half of the same mechanical aids to which the witness had resorted, would have been equally competent to form an opinion upon the subject; but, as such aids might not be at hand, or perhaps could not readily be procured, the evidence seems properly to have been adnaitted, though, as it was stated by the learned judge,(6) its weight would depend upon the way in which it was confirmed. Rule confined to matters of science and skill. The rule under consideration must be considered as confined to the ad- missibility of the opinions of scientific men, upon questions of science or skill ; witnesses, therefore, are not permitted to state their views of legal or moral obligation, as to the manner in which others would probably be influenced in case the parties had acted in one way rather than another ;(7) (1) Tracy Peerage, 10 CI. & Fin. 191. (2) See Davies dem. Lowndes, Ten. Am. Rep. 0. P. 454, n. q. 456; and post, Vol. 11, Chap. 6 Sect. 4, Of the Proof of Handwriting. (3) By Lord Mansfield, C. J., in Polkes v. Chadd, 3 Doug. 15'7. (4) 'Woodcock V. Houldsworth, 16 M. & W. 124; Fletcher v. Braddyl, 3 Stark. R. 64; Abbey V. Lill, 5 Bing. 299. See the remarks of Best, C. J., Id. 303. (5) R. V. "Williams, 8 C. & P. 434. (6) Parke, B., after oonaulting Tindal, 0. J. C?) By Lord Denham, 0. J., in Campbell v. Rickarda, 5 B. & Ad. 846. SEC. IV.] In Matters of Skill. 781 nor can tHey be allowed to give their opinion on things with which a jury- may be supposed to be equally well acquainted.(l) Therefore a medical man cannot be asked whether a physician, in re- fusing to consult with another physician, had honorably and faithfully discharged his duty to the medical profession ;(2) though if any specific rules of the profession had been given in evidence, it seems it might have been shown that a physician, by violating these rules, had rendered him- self unworthy of the countenance of his brethren.(3) Thus, in an action for a libel, imputing to the plaintiff, who was a member of the Jockey Club, that he had acted dishonorably in withdrawing a horse which he had entered for a race,(4) a witness, who was also a member of the club, had stated, on cross-examination, that by the rules of the club, the owner of a horse entered for a race was entitled to withdraw him without giving any reason, and such owner, if he had betted against the horse's winning, would be entitled to receive the money : upon re-examination he was asked what was his opinion respecting the morality of such a case ; and it was held that his opinion, upon this subject, was legitimate evidence, with the view of ascertaining the extent and meaning of the rule in question. In some cases it is difficult to say whether the evidence proposed to be given is of a scientific character or not ; and there has been a difference of opinion as to the application of the rule in particular instances. Thus, there have been different decisions upon the question whether the opinion of brokers or underwriters is admissible, as to the materiality of facts not communicated at the time of effecting an insurance. In the case of Car- ter V. Boehm,(5) it was held that such evidence was not aldmissible. Lord Mansfield, C. J., in delivering the judgment of the court, there said : " Great stress was laid upon the opinion of the broker; but we all tbink the jury ought not to pay the least regard to it. It is mere opinion, which is not evidence. It is an opinion which, if rightly formed, could be drawn 6nly from the same premises from which the court and jury were to deter- mine the cause ; and therefore it is improper and irrelevant in the mouth of a witness." This case was followed" by that of Durrell v. Bederley,(6) where a similar rule was laid down by Gibbs, C. J., and both these (1) By Tindal, C. J., in Eamadge v. Ryan, 9 Bing, 335. So the opinions of innkeepers, that a guest keeping his money looked up in a trunk or portman- teau is guilty of negligence, are not admissible. Taylor v. Monnot, 4 Duer R. 116. (2) Ramadge v. Ryan, 9 Bing. 333. (3) By Tindal, C. J., Id. 335. (4) Greville v. Chapman, 5 Q. B. '731. (5) 3 Burr. 1905 (A. D. 1Y64). (6) Holt, 283. 782 'Of Evidence in Mailers of Opinion, [CH. x. authorities were recognized by the Court of King's Bench, in Campbell V. Eickards.(l) On the other hand, in Berthon v. Loughman,(2) Holroyd, J., ruled at Nisi Prius, that the opinion of a witness, who was conversant in the busi- ness of insurance, whether particular facts if disclosed to an underwriter would have made a difference as to the amount of a premium, was admis- sible evidence. This case was followed and confirmed by Rickards v. Murdock,(3) and they were both recognized by the Court of Common Pleas, in Chapman v. Walton.(4) A learned writer, in commenting upon these apparently conflicting de- cisions, has observed : (5) "The question of materiality in an assurance seems one which may possibly happen to fall within either of the above two classes," \i. e., where the subject matter of inquiry does, or does not partake so far of the nature of a science, as to require a course of previous habit or study in order to the attainmenl of a knowledge of it]; "for, setting out of the question the cases of life. policies, where the medical evidence is unquestionably scientific, and necessary in order to enable the jury to come to a right conclusion, (6) it is submitted that it may happen, even in cases of sea policies, that a communication, the materiality of which is in question, may be one, respecting the importance of which no one except an underwriter can, in all probability, form a correct opinion. If such a case were to occur, it possibly would not be considered as falling within the decision in Campbell v. Rickards. In that case the facts con- cealed were of the very simplest nature ; a vessel which sailed after the one insured, had arrived thirty-nine days before it, and it was easy, without (1) 5 B. & Ad. 840 (A. D. 1833, M. T.) In this case the authority of Rickards v. Murdook, ui infra, was doubted. The description of premises in a policy of insurance is construed as a warranty by the insured that they are as described (Wall v. East River Co., 3 Selden, 310) ; and the insured is not per- mitted to show, where a building is insured as a store-house, that this term has, by recent general usage, acquired a technical meailing so as to be descriptive of a building used for storage and manufacturing purposes. S. 0., 3 Duerj 264. The policy shows what the contract was (Jennings v. Chenango Co. M. Ins. Co., 2 Deulo, 11 ; French v. Carhart, 1 Oomst. 96); and a misstatement by the insured avoids the policy. Wilson v. The Herkimer Co. M. Ins. Co., 2 Sel- den, 53. (2) 2 Stark. R. 258 (A. D. 181T). (3) 10 B. & C. 527 (A. D. 1830). (4) 10 Bing. 57 (A. D. 1833, T. T.) In this case the authority of Durrell v. Bederley [ut supra), was doubted. It is to be remarked that the case of Chapman v. Walton, which was decided in the term immediately preceding the decision in Campbell v. Rickards, was not referred to in the latter case. (6) 1 Smith Lead. Ca. 286, a, note to Carter v. Boehm. And see the additional note by the editors of the third edition. It appears that in Carter v. Boehm the fact, the conoealinent of which the broker thought material, was that the assured had. In two letters, expressed his own opinions and fears as to the probability of a certain event taking place, against the occurrence of which the assurance was effected. (6) See Lindenau v. Desborough, 8 B. & C. 586. • SEC. lY.] In Matters of Skill. 783 much experience in the business of an underwriter, to divine the probable fate of the ship insured under these circumstances." In confirmation of this view, it may be observed that the facts were of a very different nature in Chapman v. "Walton. They were as follows : a broker had effected a policy on a ship upon a voyage to St. Thomas, in the West Indies, with leave to call at certain ports. The assured after- wards received a letter from his supercargo announcing his intention to sail for the Canaries, and thence to other West India islands, besides St. Thomas. The Canaries were not covered by the policy. The assured took the letter to the broker and told him that the voyage was altered, and that he left him to do the needful with it. The broker got the policy altered by adding leave to proceed to the other West India islands named in the letter. The vessel was lost at the Canaries, and it having been de- cided in an action upon the policy, that the voyage was not covered by the alterations, an action was brought by the assured against the broker for negligence in not having procured the proper alterations to be made. On the part of the defendant several policy brokers were called, and the policy and letter being placed in their hands, they were asked what altera- tions in the policies a skillful insurance broker ought, in their judgment, to have formed, having these documents in his possession, and being in- structed to do the needful. And it was decided that this question might properly be put. Tindal, C. J., in delivering the judgment of the court, remarked : " The point to be determined is, not whether the defendant arrived at a correct conclusion upon reading the letter, but whether, upon the occasion in question, he did or did not exercise a reasonable and proper care, skill, and judgment This is a question of fact, the decision of which appears to us to rest upou this further inquiry, viz : whether other persons exercising the same profession or calling, and being men of experience and skill therein, would or would, not have come to the same conclusion as the defendant. And it appears to us that it is not only an unobjectiona- ble mode, but the most satisfactory mode of determining this question, to show by evidence whether a majority of skillful and experienced brokers would have come to the same conclusion as the defendant. It is not a simple abstract question, as supposed by the plaintiff, what the words of the letter mean : it is what others, conversant with the busines of a policy broker, would have understood it to mean, and how they would have acted upon it under similar circumstances.(l) The evidence, therefore, was held to be receivable in this case, upon the same principle as, upon an indictment against a surgeon for man- slaughter by causing a patient's death by negligent or improper treatment, the evidence of professional men is received, both for the prosecution and for the defence, as to what, in their. opinion, would be the proper method (1) 10 Bing. 63, 64. 784 Of Evidence in Matters of Opinion. [CH. X. of treatment under the symptoms which the patient is proved to have exhibited. In oases of collision. Upon the same principle, in questions arising out of collisions on the sea or on navigable rivers, a master of the Trinity House, or a nautical witness, may give his opinion, after hearing the evidence, as to what ought to have been done by the defendant under the circumstances detailed : he cannot, indeed, be asked in direct terms whether he thiaks the conduct of the defendant's captain was right or not,(l) or whether the facts proved sbowed negligence on his part; (2) as in such cases the witness would in fact be placed in the situation of the jury, and asked to draw a conclusion of fact, and then to give his opinion upon it. But the same result may in effect be attained by asking the witness whether an officer of competent skill would have acted in the same manner as the defendant's captain had done,(3) or whether, in his opinion, a collision could tiave been avoided by proper care on tbe part of the captain.(4) In collisions between carriages on land, such evidence is not required, as the jury may be presumed to be sufficiently acquainted with what is termed the "rule of the road," to be able to draw a correct inference from the facts in evidence without the assistance of any persons possessing any peculiar skill or knowledge upon the subject. Handwriting. The proof of handwriting does not properly fall under this branch of the law of evidence, for although, except in cases where the witness can speak positively to the writing of a particular document, as, in the instance of an attesting witness, such proof necessarily depends upon opinion, still that opinion is always required to be founded upon some acquaintance, on tbe part of the witness, with the handwriting in question. This subject ■will, therefore, be deferred to another portion of the work.(5) Foreign laws. So likewise the proof of foreign laws, and of their operation and effect, wbich must be proved by witnesses who are acquainted with them, might properly be treated of in this section, as the evidence in question depends, in a great measure, upon the opinion or skill of the witness who is called to speak upon the matter. But it is considered that this subject will be (1) By Coleridge, J., in Sills v. Brown, 9 0. & P. 604. (2) See Malton v. Nesbit, 1 0. & P. 70, 12. The marginal note in this case is calculated to give an erroneous impression of the question that was really allowed to be put. (3) By Abbott, 0. J., in Malton v. Nesbit, ut sv/pra. (4) By Coltman, J., in Penwick v. Hall, 1 C. & K. 312. As to the diligence and skill required in such oases, seo Edwards on Bailments, 604-612. (5) Post, Vol. II, Chap. 6, Sect. 4, Of tlie Proof of Handwriiing. SEC. v.] Of Admissions on the Record. 785 more conveuiently treated of in auother portion of this work, in con- nection with the admissibility and effect of the proceedings in foreign courts.(l) SECTION V. Of Admissions on the Record, The rule which is now the subject of discussion (namely, that evidence is to be confined to the points in issue), will be further illustrated by con- sidering the effect of admissions made upon the record. 1. With regard to judgments by default and judgments upon demurrer; 2. With regard to payment of money into court ; 3. With regard to pleading over ; and, 4. As to particulars of demand annexed to the record. 1. Of the effect of judgment by default, or upon demurrer. A judgment by default is an admission of the cause of action. Thus, in an action on a bill of exchange against the defendant as acceptor, it admits that he accepted it, and that the bill is as stated in the declara- tion ; and he cannot afterwards show, on the execution of a writ of in- quiry, that he had not accepted it, (2) nor can he object to the sufficiency of the stamp on which the bill is drawn :(3) the only use in producing the bill is, for the purpose of seeing whether there is any indorsement upon it of money having been paid.(4) And it seems that, since the promulga- tion of the new rules, according to which payment must now be pleaded,(5) where payment has not been pleaded, the production of the instrument is no longer neeessary.(6) In an action for goods sold and de- livered, or for money had and received, the defendant, by suffering judgment to go by default, admits that something is due; and he cannot afterwards dispute the contract of sale, or show fraud on the part of the plaintiff in making the contract :(7) but the plaintiff will only have to prove the amount due to him. (1) Post, Yol. II, Chap. 1, Sect. 6. (2) Green v. Heame, 3 T. B. 301 ; Bevis t. Lindsell, 2 Str. 1149. (3) See Lane v. Mullins, 2 Q. B. 254. (4) 3 T. B. 302; Billera v. Bowles, Barnes, 233; Ellis v. Wall, Id. 234; Mills T. Lyne, Bayl. Bills, 385; Marshall v. Griffin, E. & M. 41. See also Anon., 3 Wils. 155; Snowden v. Thomas 2 "W. Bl. 748. (5) R. Hil., 4 Wm. IV, Pleadings in PaHiadar Actions, I. 3 ; 5 B. & Ad. viii. (6) By Lord Denman, C. J., in Lane v. Mullins, vi supra. (1) East India Company v. Glover, 1 Str. 612. Note 211. — Judgment by default against an executor or administrator involves an admission of assets as to the particular suit. Ruggles v. Sherman, 14 John. Rep. 446. In trespass, quare clausum fregii, it admits the description of the locus in quo. Frean v. Oruikshanka, 3 M'Cord, 84. In an action on a jailor's bond, alleging that a prisoner was in his custody, and charging a volun- tary escape, the default admits the custody. Bernard v. The Commonwealth, 4 Litt. 148, 151- Vol. I. 50 786 Of Judgments hy Default, or upon Demurrer. [CH. X, On the execution of a writ of inquiry after judgment on demurrer, the defendant cannot controvert anything but the amount of the sum in de- mand ; for by demurring in law, the defendant admits the facts stated in the declaration. Thus, in an action for goods sold and delivered, to which the defendant pleaded coverture, and the plaintiff replied that the defend- ant's husband had resided abroad, and that the defendant, duiing all the time, &c., had carried on trade as a feme sole,{l) the court were of opinion, that after j adgment on demurrer to this replication, evidence of the wife having acted as agent to the husband ought not to have been admitted on the execution of the "writ of inquiry ; that the only question to be decided by the jury, was' the amount of the debt, and that the question, whether the debt had been contracted 'by the defendant as agent for her husband. ■'■n covenant, it admits all the plaintiff's averments. Courcier v. Graham, 1 Hamm. Eep. 3&. In debt on bond averring the performance of a condition precedent (notice to a surety), and non- payment, both are admitted ; semMe, otherwise as to the breaches, if they be suggested after judgment by default. Barwise v. Eussell, 3 Carr. & Payne, 608. And see Hodgkinson v.'Mars- den, 2 Campb. 121. But semble, that on a writ of inquiry of damages for delay of execution, and to assess the amount of mesne profits, on afBrmance of a judgment in ejectment, which writ is given by 1 E. L. 143, § 3, and 1 E. S. 598, § 39, the defendant is concluded the same as on a default in an action for a tort.' Jackson ex dem. Eden v. Eathbone, 3 Cowen's Eep. 296. In all such, and the like cases, the jury, on writ of inquiry, are bound to give some damages, at least nominal. Jackson ex dem. Eden -v. Eathbone, supra ; Eeigne v. Dewees, 2 Bay, 405 ; Parsons v. Cain, 1 Eep. Const. Court, 196 ; Eudesil v. Lesesene, 2 Eep. Const. Court, 58 ; Bates V. Loomis, 5 Wend. 134. But the judgment concludes none other than the defaulted defendants. It will not conclude the defendant's surety for the debt in question. P'oxcroft v. Nevens, 4 Greenl. 12. Nor does a default admit any other than material, substantial, traversable averments. It does not admit the day, nor alia enormia in assault and battery (Bates v. Loomis, 5 "Wend. 134) ; nor any matter material, if it be left in blank, aa where the time happens to be so (Varnon v. Moore, 1 Mon- roe, 213, 214) i nor the amount of the debt even semile, in an action of debt on simple contract (BriU y. Neele, 1 Chit. Eep. 619 ; and note 6 at page 620 ; per MUls, J., In Taggener v. Bells, 4 Mon- roe, 11); and this is clearly so in all actions sounding in damages. Per Mills, J., in Wa^ener V. Bells, vi snpra. (Under the New York Code, where a demurrer is frivolous, the party prejudiced may apply to a judge in or out of court, by motion, for judgment on that ground. § 247 ; Eoberta v. Clark, 10 How. Pr. 415; 12 Id. 399; 14 Barb. 393.) (1) De Gaillon v. L'Aigle, 1 B. & P. 368. See also Lane v. MulUns, vi supra; Stephen v. Pell, 2 Dowl. P. C. 629. As to the effect of admissions in equity' pleadjug, see post, Yol. II, Chap. 1, Sect. 2, Of the Ad- jnissibiUty and Effect of Proceedings in Chancery. Note 212. — ^But a judgment in favor of the plaintiff on a bond aasigning several distinct breaches, on a general demurrer to the whole declaration upon the bond, does not conclude as to those breaches the assignment of which is substantially defective ; for the correct assignment of a single breach is sufficient to defeat the demurrer. Thus, where the bond was to perform the duty of an ofBce generally, upon which a apeoiflc breach of duty must be assigned, and not a general violation ; but both general and specific breaches were assigned, the defendant demurred ; and the court overruled the demurror; but said the plaintiff should assess damages on the spe- cific assigninent of breaches only. People v. Brush, 6 'Wend. 454, 468. Tet a judgment against a party on demurrer, concludes him as to all matters of substance, which are substantially well ' pleaded, all the facts in the pleading demurred to, as effectually as if they had been found against hiln''by verdict. Carlyle v. Long, 5 Litt. Rep. 167, 168, SEC. v.] Effect of Payment into Court. 787 or in her separate capacity, ought to have been considered as determined by the record. 2. Of the effect of payment of money into court. Payment into court,-:— which must now be pleaded in all oases ; either as a matter of course, in actions for the non-payment of money,(l) or by leave of the court or a judge, in mos* actions for consequential damages, such as assault, libel, criminal conversation, debauching the plaintiff's daughter, and the like,(2) — may be pleaded either to the whole or a part of the plaintiff's claim.(3) The effect of payment into court, as an admission, must be considered with reference to the state of the pleadings and the subject matter of the admission.(4) Where money is paid into court upon the general indebitatus counts, the payment only amounts to an admission that the defendant is liable in respect of some contract to the extent of the sum so paid in.(5) But where the plaintiff declares upon a special contract, the plea of payment into court operates as a confession of the contract as set forth in the declaration •,(6) because the payment admits that something is due, and, ■therefore, must admit that the contract was made, by which alone any- thing is due.(7) Thus, a general plea of payment of court, in an action of covenant, is an admission of some damage on every part of the breach of covenant in the declaration.(8) In the former case, that is, where money is paid in upon the general indebitatus counts, it is incumbent on the plaintiff to show, not only that a larger sum is due, but that a contract exists in respect of which the de- fendant is liable beyond the amount so paid into court ;(9) and when the action is brought against more than one defendant, the plaintiff must (1) B. Hil., 4 Wm. IT, r. 18 ; 5 B. fc Ad. t1 (2) 3&4Wm. IV, 0.42, §21. (3) E. Tiin., 1 Tiot. 8 A. & E. 278. Under various statutes the plea of payment of money into court is authorized in an action for any aet done under the authority of the statute. (4) Before Lord Mansfield's time, payment of money into court was not an admission of. any- thing; by Sir James Mansfield, 0. J., in Rucker v. Palsgrave, 1 Camp. 558. As to the com- mencement of the practice, see 2 H. Bl. 376 ; 1 Lord Raym. 264. (5) By Tindal, C. X, in Archer v. English, 1 M. & G-. 873, 876. See also Burrough v. Skinner, 5 Burr. 2640; Hulton v. Bolton, 1 H. BL 299, n.; Seaton v. Benedict, 5 Bing. 28; Stevenson v. Berwick (Corp.), 1 Q. B. 154; Stapleton v. NoweU, 6 M. & W. 9; Kingham v. Robins, 5 Id. 94; Elgar v. Watson, C. & Marsh. 494; Churchill v. Day, 3 M & R. 71 ; Emmett v. Norton, 8 0. & P. 508 ; Booth v. Howard, 2 DowL P. C. 438. (6) By Parke, B., in Kingham v. Robms, 5 M. & W. 99. And see Archer v. English, and the . other eases cited in the last note. See also Tate v. WiUan, 2 East, 128. (7) By Alderson, B., in Stapleton v. Kowell, 6 M. & W. ,11,, on ,the , auliiority ,, of Bayley, J. And see by Tindal, 0. J., in Thompson v. Jackson, 1 M..& G. 244. (8) Wright v. Goddaid,,8 A. ,& B.a44. (9) By Tindal, 0. J., in Areher v. English,, 1 M. k G. 873, 876. ,And sge by .Parke, B., in Ejngham v. Robins, 5 M. & W. 101, correcting what wasisaid by himself and Littledaie, J., in Morgan V. Smith, 4 B. & Ad. 673. 788 0/ Admissions on the Record, [CH. X. moreover show a joint liability upon some contract beyond the amount paid in.(l) Effect of, aa admission of contract. Where money is paid in upon a declaration in this general form, it amounts to an admission of the existence of a contract as to any transac- tion which is capable of being converted into a contract, by the assent of the parties. Thus, where the defendant had possessed himself of goods belonging to the plaintiff, and had sold part and kept the residue in specie, and paid money into court generally, upon a declaration containing a count for goods sold and delivered and the usual money counts, it was held that he thereby admitted the transaction to have been converted into a contract, and that the plaintiff was entitled to recover the value of the goods under the count for goods sold.(2) Where there is a count on a special contract together with the general indebitatus counts, payment of money generally upon the whole declara- tion is an admission of the defendant's liability upon the special contract. Thus, where the declaration stated a specific bargain to pay a particular sum of money for a certain consideration, a general payment of part of the money into court, by admitting the bargain, admitted also the sum which was originally due ; and the only question that could be raised after that admission would be, whether the remainder of the money had been previously paid.(3) If the contract had been to pay, not any par- ticular price, but the average price at which such articles were sold, to be ascertained by a certain time, a general payment of money into court would not have admitted the amount of the breach as stated in the decla- ration, though it would admit a cause of action on each count, and some- thing due on each of the breaches : the contract is admitted, but not the averment of the average price.(4) And the same principle applies where the sum contracted to be paid is laid under a videlicet, as according to the rules of pleading" such an averment is not material. Thus, where the plaintiff declared upon a contract that the defendants would employ him as the editor of a newspaper at a certain salary, to wit, at the rate of £400 per annum, and the common counts were added to the declaration, and the defendant paid money into court generally, it was held, that though the payment into court admitted the contract to engage the plaintiff as editor, it did not amount to an admission of the rate of salary as alleged. (5) (1) Archer v. English, v,t supra; Ravenscroft v. Wise, 1 C, M. & R., 203, and Walker v. Raw- son, 1 Moo. & R. 259, are overruled by these later decisions. (2) Bennett v. Francis, 2 B. & P. 550. (3) Cox V. Brain, 3 Taunt. 95. In this case the money had been paid into court. Upon a plea of tender, but the principle is the same as that which governs the plea of payment into court. (4) Stoveld V. Brewin, 2 B. & A. 116. (5) Cooper v. Blick, 2 Q. B. 915. See Banbury Union (Guardians) v. Robinson, 4 Q. B. S19. SEC. v.] By Payment into Court. 789 Where the defendant has paid money into court generally, upon a declaratioa containing a count on a policy of insurance together with money counts, he will not afterwards be permitted to show that the policy was originally different from that set out in the special count, but altered by, the broker without his knowledge.(l) But in such a case, where the special count states a total loss by capture, the payment into court admits the contract and the capture, but only a partial loss to the amount paid in.(2) Where the declaration contains a special count and also the common counts, money paid in upon the latter only will not admit either the con- tract stated in the special count, or any allegation contained therein. Thus, where to a special count charging the defendants as partners upon a con- tract the money counts were added, and the defendant paid money under the latter, it was held, that this was no admission of the partnership al- leged in the first count. (3) (1) Andrews v. Palsgrave, 9 East, 325. Note 214. — Johnston v. The Columbian Insurance Company, 7 John. Eep. 315. Where the defendant pays the premium into court, and the plaintiif takes it out, under an agreement that this shall be without prejudice, he may still claim on the trial as for a total loss. Sleight v. Rhine- lander, 1 John. Rep. 192, 193, 194, and 202. (Under the Code of New- York, the defendant may, at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing, within ten days, he ma^ file the summons, complaint and offer, with an affidavit of notice of acceptance ; and the clerk must thereupon enter judgment accord- ingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer. § 385. As to mode of makiDg the offer, see 12 How. Pr. R. 552.) (2) Bucher v. Palsgrave, 1 Camp. 557; S. C, 1 Taunt. 419. See Everth v. Bel], 1 Taunt. 450. (3) Charles v. Branker, 12 M. & W. 743. Note 213. — Bucher v. Palsgrave, 1 Taunt. 419. Payment of money into court upon a general indebitatus assumpsit, is no admission of a contract beyond the amount of the sum paid in. Thus, where it was for goods sold to the defendant's wife, the plaintiffs particular amounted to £28 5s. 6d. for various articles. The sum of £10 was paid into court. On the trial, it appeared that the wife had obtained all the goods under such circumstances that the defendant was not liable at all ; but the judge at the trial considered the payment of money as the admission of a general liability, and directed a verdict for the whole amount. Held, on motion for a new trial, that the verdict should have been restricted to the £10. It would be otherwise in respect to a special contract. Seaton v. Benedict, 5 Bing. 28 ; S. C, 2 Mo. & Payne, 66. The sum paid in is to be deemed stricken out of the declaration; and unless a larger sum is proved by the plaintiff at the trial, the verdict should be for the defendant. Columbia Bank v. Southerland, 3 Cowen's Rep. 336 ; Boyden v. Moore, 5 Mass. Rep. 365. It was said that the plea of a tender, and paying money into court, on a decla,ration upon a qwmtiam meruit, did not preclude the defendant from showing a special contract in respect to the work declared for, so as to reduce the damages to the sum paid in. Downey v. Young, 1 Dev. 432, 433. And in an action on a, promissory note, it was held that the defendant might pay into court the balance due, deducting a certain amount for a partial failure of consideration; and that at the trial, if the proposed deduction were allowed, so 790 Of Admissions on the Record, [CH. X. that a balance due to the plaintiff should not appear to be more than the sum paid in, the defendant should have a verdict. Shiel v. Randolph, 4 M'Cord, 146. In an action by the payee against the acceptor of a bill drawn by a third person, with the general counts, including an account stated, the defendant paid into court £10 on the general counts. No more than £10 was due on the bill, and there was no other debt appearing between the parties. Held, that the £10 should be applied to the bill ; for, said Lord Tenterden, Chief Justice, the plaintiff alleges a reckoning, the defendant admits that by the payment, and we may intend they reckoned on the bill. Early v. Bowman, 1 Barnw. & Adolph. 889. And the following case, it wUl be perceived, may be sustained on the same ground. The plaintiffs declared in counts for work done, and on an account stated. The defendant paid into court £420 2s. Id. expressly upon the latter count, ij/pon an accomd staled. On the trial, the plaintiffs gave no evidence of an account stated, but only of work and labor to about £115. Held, that notwithstanding the form of the payment, yet the defendant might apply it to the only debt proved on the trial. And the plaintiff was nonsuited, which nonsuit was sustained, on the motion for a new trial. Churchill v. Day, 3 Mann. & Eyl. 71. The learned reporters make the following commentary on this case : " The payment of money into court admits every fact the proof of which would have been necessary to entitle the plaintiff to a verdict for the sum paid in; and, therefore, even upon this record, the defendant must be taken to have admitted an accounting which left him liable to the payment of £420 2s. \d. But the payment must not be considered as the admission of an account in which that particular balance was found; for if the plaintiff were to prove an account actually stated, or an acknowledgment, which is tantamount to an account stated, for a larger sum, it would be competent to the defendant to reduce that large demand so as to meet the sum paid into court, by evidence of payment, satisfaction or release, &c., of the difference. Where money is paid into court upon a count on a special con- tract, or generally, upon a declaration contauiing a count upon a special contract, the principle is the same, though the effect is rather different. If I declare upon a bill of exchange for £10.0,. and the defendant brings into court only £60, he not only admits his liability to pay £60 on account of that bill, but he also admits that he is prima facie liable to pay the other £40 ; beeausei under the general issue alone, I could not have obtained a verdict for the £60 without giving evidence which would have shown me entitled, prima facie, to the whole £100. But it is competent to the defendant to rebut thi% prima facie liability by any evidence which does not go to show that at the time of the payment of the money into court, he did not owe £60, or at least some sum of money, upon the bill. Thus he may show that, to the extent of £40, or to any extent less than the whole amount of the bill, I held it as a trustee, or that the consideratioii was partially void ; or he may protect himself by matter ex post facio, as payment, satisfaction, release, &c. And see Godsall v. Boldero, 9 Bast, 12, 19; Bell v. Ansley, 16 East, 146; Black- bum V. Soholes, 2 Camp. 341." In Massachusetts, the effect of a general payment of money into court is much more rigorous than in England, where, as we have seen by the text, and by the above case of Seaton v. Bene- dict, this act of payment does not preclude the defendant from objecting to the whole of the plain- tiff's cause of action beyond the amount paid in. In Massachusetts, the payment seems to entitle the plaintiff not only to recover tor a demand which otherwise could not have come in under his declaration, but for the whole amount of such demand. Thus, In assumpsit, the de- claration contained one count on a note, one for goods sold and delivered, and one for money had and received. Money was paid into court, " on account and satisfaction of the plaintiff's damages in the suit." The count for goods sold was sought to be supported by proof that the defendant had trespassed by cutting and carrying away the plaintiff's timber. It was made a question whether the action thus lay for a tort. The court held that, to be sure, the action would not lie in this form ; but the defendant was concluded by the form of his payment into court from raising the question. He had admitted the contract set forth in all the counts. If he had intended not to do so, he should have paid in on a particular count. But the court finally relieved him fVom the inadvertence by amending the rule. Jones v. Hoar, 5 Piok. 285. The English courts would have applied the money to meet the demands appearing to be legally duo, which were, in this case, the note and nommal damages under the other counts ; and if, in this view, no more should appear to be due than the sum paid m, the verdict would have been for the defendant. So where, to a declaration containing one count on an account stated, and SEC. v.] By Payment into Court. 791 In an action to recover the amount of the sale of goods, which have been sold by sample at a particular price, the defendant will not be al- lowed to show, after payment into court upon the whole declaration, that, the goods were of a quality inferior to the sample.(l) But under a common count for goods sold, payment into court will not preclude the defendant from showing that the goods were not made according to order, but that be had, at the request of the plaintiff, retained some of them upon trial. (2) A declaration in trover being general, payment into court in that action admits no liability beyond the amount paid in ; it is incumbent; therefore, on the plaintiff to show what articles the defendant has converted.{3) In, an action of assumpsit for goods sold and delivered, and on the money counts, in which the defendant paid money into court generally and pleaded the general issue, with a plea of the Statute of Limitations, payment into court was held not to take the case out of the statute.(4) In an action on a bill of exchange, the defendant, by paying money into court generally, dispenses with the regular proof of the party's hand- writing,(5) and cannot: object to the sufficiency of the stamp on which the bill is drawn.(6) So, in an action of covenant, he admits the execution of the deed.(7) On the, same principle, payment of money into court admits that the contract was in writing, if required to be so by the Statute of Frauds ;(8) it also admits the plaintiff's right to sue in that court ;(9) another on a qwmivm mendt tor services, the defendants pleaded' a tender- of $300, and paid that sum into court; and as to the residue, pleaded mm aamj/mpserunt ; at the trial they would have shown that the plaintiff was bound by an award of $300 to him for his services in question. This being overruled, and a verdict on the qiumtv/rn, m^wt Joeing for $400 ; on motion for a new trial, it was held that the defendant was precludeiJ hy the plea and payment, and that the plaintiff might recover the real value of his services, notwithstanding that, had the payment been special, he would have been tied down by the award. Huntington v. The American Bank, 6 Pick. 340. It was held at Nisi Prius, that, after a payment of money into court on a single count for work and labor, yet the defendant might show infancy — a defence to the whole action — and thus cut the demand down to the amount paid in. Cor. BuUer, J., Hitchcock v. Tyson, 2 Esp. Rep. 481, note. Taking out a summons to be permitted to pay a certain sum — e. g. £42. 15e.r— into, court, would seem to be a conclusive admission that so much is due ; and to supersede the necessity of proof to that extent; though no judge's orderbe made upon the snmmoas,. and no money be, paid, into court. 'WiUiamson v. Henley, 6 Bing. 299. (1) Leggett V. Cooper, 2 Stark. E. 103. (2) Mainworthy v. Page, 3 Jur. 126, Exch. (3) Oook V. Hartle, 8 0: & P. 568. (4) long V. Greville, 3 B. & C. 10 ; Ueid v. Dickons, 5 B. & Ad. 499 ; recognized :im Shearc wood V. Hay, 5 A. & E. 390. And see Lechmere v. Fletcher,,! C; & M. 6.23i; Cox v. Parry, 1 T. R. 464. (5) Gfatteridge.v. Smith, 2 H; Bl. 314. (6) Israel v. Benjaminj 3 Camp. 40. (7) Randall v. iynoh, 2 Gamp. 357 ; Watkins v. Towers, 2; Xj Ri 275. (8) Middleton v. Brewer, PeakeU. 0. P. 15. (9) Miller v. Williams, 6 Esp. 19. 792 Of Admissions on the Record, [CH. X. the title on which he sues — as, for instance, his being a surgeon,(l) or farmer of tithes, &c. (2) It wUl also amount to a waiver of any objection, either as to the non -performance by the plaintiff of a condition precedent, or as to the action being brought too soon. (3) Payment of money into court is an admission only of a legal demand. If the contract declared upon be illegal, the defendant cannot give it va- lidity by his admission ;■ no admission of the parties will oblige the court to give effect to an illegal transaction.(4) Although payment of money into court admits the contract, that is, the entire consideration for the act and the entire act which is to be done for such consideration, yet it will not be an admission of other parts of the contract, which are distinct and collateral, respecting the liquidation of damages after breach of the contract.(5) If indeed the provision is of such a nature a^ will discharge the defendant from all liability under the contract, unless the plaintiff has complied with the condition (as was the case in Clay v. Willan,(6) where the goods were not to be accounted for to any amount unless properly entered and paid for), that will operate not merely in reduction of the damages, but in bar of the action ; and, there- fore, in such a case, if the defendant pays money into court on a declara- tion against a carrier in a common form, he cannot afterwards give in evidence such a provision, which entirely negatives the contract as stated in the declaration. In an action on the case for negligence in not properly securing a cow, by means whereof the cow destroyed one belonging to tbe plaintiff, the defendant paid money into court, pleading that the plaintiff had sustained no greater damage. The plaintiff" replied that he had sustained greater damage. It was ruled that the defendant could not go into evidence to show that his cow had not killed the plaintiff's cow, as the contrary was admitted by the plea.(7) (1) liipsoombe v. Holmes, 2 Campb. 441. (2) Broadhurst v. Baldwin, 4 Price, 68. (3) Harrison v. Douglas, 3 A. & B. 396. Payment into court will predude a defendant from moving in arrest of judgment an account of the insufficiency of the counts in the declaration upon which the money has been paid in. "Wright v. Godda-rd, 8 A. & E. 144. As to pleas in- consistent with the payment into court, see Thompson v. Jackson, 1 M. & G. 242 ; Speck v. Phillips, 5 M. & W. 279. (4) Ribbans T. Crickett, 1 B. & P. 264 ; Cox v. Pai-ry, 1 T. R. 464, explained by Lawrence, J., 2 East, 134. (5) See Clarke V. Gray, 6 East, 564. (6) 1 H. Bl. 298. ('7) Lloyd V. Welkey, 9 C. & P. in. See, further, Parfltt V. Thompson, 13 M. & W. 392. As to how far a new assignment operates as an admission, see Oakley v. Davis, 16 Bast, 86 > Norman v. "Wesoombe, 2 M. & "W. 349 ; Bolton v. Sherman, Id. 399, by Parke, B. ; Alston v. Mills, 9 A. & B. 248 ; Band v. Kingscote, 6 M. AW. 191 ; Braacher v. Molineux, 1 M. & G. HO; Darby v. Smith, 2 Moo. & R. 184. SEC. v.] By Pleading over. 793 Even a summons for leave to pay a sum of money into court, though, not acted upon, is some evidence of liability to that amount.(l) As the payment of money into court is an acknowledgment on the record of its being due, the party cannot receive it back, although he has paid it wrongfully or by mistake. (2) 3. Of the effect of pleading over. The effect of pleading over would seem properly to appertain to the science of special pleading ; but it has a considerable bearing upon the law of evidence ; and it has become of more practical importance since the promulgation, by the judges, of what are known in the profession as the New Eules in Pleading.(3) The general rule upon this subject may be thus stated : — Every mate- rial fact, which is not denied by the opposite party, is taken to be admitted upon the record ;(4) and whatever is so admitted need not be proved, and cannot be disproved.(5) But an admission in one pleading does not operate as an admission with respect to an issue joined upon any other pleadings.(6) In the same manner, although a special demurrer admits all the mate- (1) Lawson v. .Mangles, 2 Moo. &.E. 42'?. (2) Vaughan v. Barnes, 2 B. & P. 392 ; Malcolm v. Fullerton, 2 T. R. 645. (3) See 5 B. & Ad. lii; 10 Bing. 465 ; 2 C. & M. 14. (4) Wimbush v. TaUbois, Plowd. 48 ; Hudson v. Jones, 1 Salk. 90. See, also, King v. Norman, 4 0. B. 884, 895. (5) B. N. P. 298 ; Anon., Dy. 183 ; Nicholson v. Simpson, 1 Str. 2S1 ; S. C, Port. 356. See, also, 2 Vent. 110 ; Salk. 91 ; Green v. Heame, 3 T. R. 301 ; Stephen v. PeU, 2 Dowl. P. C. 629 ; Evans v. OgUvie, 2 T. & J. 79 ; Jones v. Brown, 1 N. 0. 484; Bonzi v. Stewart, 4 M. & G. 295 ; Carter v. James, 13 M. & W. 145 ; Coulishaw v. Cheslyn, 1 C. & J. 48. But see, as to this last case, what is said by Lord Denman, C. J., in Blewett v. Tregonning, 3 A. & E. 5'79. See, also, Needham v. Eraser, 1 C. B. 815. The New York Code of Practice provides (§ 168) that every material allegation of the com' plaint, not controverted by the answer, and every material allegation of new matter in the answer, constituting a counter claim, not controverted by the reply, shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a coun- ter claim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require. Under this provision no allegation is deemed material, unless an issue taken upon it, whether of law or fact, will decide the cause, so far aa relates to the particular cause of action to which the allegation refers : a denial of circum- stances is improper, and facts pleaded in mitigation of damages in an action for libel cannot be demurred to. Newman v. Otto, 4 Sand. 668 ; Fry v. Bennett, 5 Id. 54. The issuable facts are such as must be proved to sustain the action or defence, and not such as merely go to establish such facts. Williams v. Hayes, 6 How. Pr. 470. An allegation of facts by way of proving other facts, may be stricken out as surplusage. 2 Comst. ItO. And no unanswered allegation is to be deemed msterial, which is not made in direct and positive terms. Oechs v. Cook, 3 Duer, 161. The rules of pleading under our Code, and consequently the rules of evidence, are, in many respects, the same as those established under the English rules of court. Garvey v. Eowler, 4 Sand. 665, per Duer, J. See, also, the Common Law Procedure Act, of 1854, 11 & 18 Yict., i;. 125. (6) Harrington v. Macmorris, 5 Taunt. 228 ; Gould v. Oliver, 2 M. & G. 208; Stracy v. Blake 1 M. & W. 168. See by Patteson, J., in Knight v. M'Dowall, 12 A. & E. 442. 794 Of Admissians on the Record, [CH. 2. rial facts tbat are well pleade(i(l) in the pleading demurred to, still tlie statements made in such pleading cannot be referred to by either party upon the trial.(2) Admits only material facta. Only material facts, however, which are not denied, are taken to be ad- mitted.(3) Thus, where a declaration in assumpsit stated that the defend- ants were the owners of a- certain vessel, in which the plaintiff shipped certain goods, to be safely carried by the defendants, as owners of the said vessel, and that the defendants promised safely to carry the said goods as aforesaid ; alleging as a breach that they were damaged through the negligence of the defendants ; and they pleaded non-assumpserunt ; it was held, that their ownership was not admitted in the plea ;(4:) the allegation of ownership being perfectly immaterial. On the other hand, where a declaration in a case stated that the defendant was possessed of a ship, which, by the carelessness of his servants, damaged the plaintiff's ship, it was held, that the plea of not guilty admitted that the defendant was pos- sessed of the ship,(5) that being a material allegation. Allegations which are not traversable are immaterial; and, therefore, such allegations, though not denied, are not to be taken as admitted.(6) It is further to be observed that an admission by pleading over operates only to the extent of the facts stated upon the record.. Thus, if, in an action of covenant for non-repair, the defendant pleads,, firstly, perform- ance, and secondly, a license, he thereby admits only so much 6f the deed as is expounded upon the record ; and if the plaintiff wishes to avail himself of any other part, of the deed,, he must prove it in the ordinary way.(7) (1) See by Lord DBnman, C. J., in Van Sandau v. Turner, 6 Q. Bi,786. (2) Pirmin v. Gmoiflx, 5 G. & P. 98 ; Montgomery v. Sicihardaon, li 2,41 ; Ingrajn v. Lawson, 9'Id. 229:: S. C, 2 Moo. & E. 253. (3) E. Y. Chester (Bishop), 2 Salt. 660; S. 0., l,Ld. Eaym. 292; King y. Hormao,, 4. C. B. 8>84, 895. (4) Bennion y. Paviaon, 3 M. & W. IM. Under an allegation, by the plaintiff that on, &o., ha sold, andi delivered goods tothe^ defendants, under their firm name of John Cook & Sou, denied in general terms by the answer, it is not necessary to prove that the defendants: w,era, partners. The substantial issue, hare is whethei tiiere was a sale and delivery to the defendants. It is otherwise where the plaintiff alleges that the defendants were partnersj and that he sold goods to the firm. Oeohs v. Cook, 3 Duer, 161. (5) Dunford v. Tsattles, lai M. & W. 529. See; aiso- Tavemer v. Little, 5 N. Cj eTa ;, Grellin ^4 Calvert, 14 Ml & W. 11. (6) Gale v. Lewis, 9. Q. B. 730. '* An omission to deny matorial, aUegationS) in a aompladnt admits thepi to be true for the pur- poses of the action. Code of N. T. § 168. The question occurs, what, are material, allegations within the meaning of that rule ?. I think none should be held to be of this character which will not prevent a plaintiff from recovering if proved to be untrue, or which, when denied) lie is not obliged to prove to-eutitle himself to a vetdiot,;' 3 Du,er, 165, per Boswortjj, J. (7) Williams v. Sill>s„2 OftTOpj 619> SEC. v.] By Pleading over, 795 So a fact whicih. is material to the issue is not admitted, although:: not expressly denied. Thus, where a defendant pleaded a cnistDmary right of common in respect of an ancient messuage, and the plaintiff tra- verses the right, he does not thereby admit the antiquity of the mes- suage.(l) But where a defendant in assumpsit pleaded that he had paid, and that the plaintiff had accepted moneys in full satisfaction, and the plaintiff in his replication alleged that he did not accept the moneys in full satisfaction, it was held that this put. the payment as well as the acr ceptance in issue ;(2) for unless the money were accepted, it could not be a payment, but a tender only .(3) Exacts admitted not to be proved. Not only is a party not called upon to prove nmterial facts that are ad- mitted upon the record, but he will not be permitted to prove them. Thus,, in an action of slander, (4) the declaration alleged, that certain property had been feloniously stolen from the plaintiff, who, thereupon, preferred a charge against another party before justices of the peace, and that the de- fendant had uttered the slancbrous words complained of, imputing that uq felony had been committed. The only plea, was not guilty. At the trial,. before Patteson, J., it was proposed to call witnesses on the part of the plaintiff to show that the property, mentioned in the declaration, had been in fact stolen from the plaintiff; but his Lordship, would not allow it to be done. " The statements," his Lordship said, " which are admitted on the record, that is, all those allegations which are contained in the declara- tion, and not denied by the plea, must be taken to be perfectly true ; and it is not only unnecessary to give evidence of the truth of themj 'but such evidence cannot be allowed to be given ; because the matters are admitted, and are not put in issue, which they might have beem^ if the- defendant had chosen to put the^ plaintiff to the proof of the statements contained in them." Pacts admitted camiot be disproved. , Before closing this branch of the subject it may be of use to lay before the reader one or two examples of that part of the rule which states, that matters admitted upon the record cannot be disproved. Li an action of assumpsit, the declaration stated, that, in consideratioa of the plaintiff's having delivered a, certain quantity of best Butch lepd,\xy the defendant, the latter promised to deliver prussiate of potash to the same amount to the plaintiff; it then alleged the selling of so much lest Dutch lead by the plaintiff, and the refusal by the defendant to deliver the (1) Dunster v. Tresider, 5 T. E. 2. (2) Ridley v. Tindall, 1 A. & E. 134. (3) Per Tindal, 0. J., in Bonzi v. Stewart,. 4 M. A Q-. 329. (4) Gwynne v. Sharpe, Oar. & M. 632. See also Guy v. Gaegory, 9 0. & P. 584. 796 By Admissions on the Record, [CH. X, full quantity of potaslj. The only plea was non-assumpsit. And it was ruled, that in this state of the pleadings the defendant could not contend, that the lead delivered by the plaintiff was of an inferior quality.(l) In an action for not attending, in obedience to a subpoena, the trial of a cause between the plaintiff and A., the declaration alleged that the plaintiff had a good cause of action against A., and that the testimony of the de- fendant was material for the plaintiff on that trial ; and that in conse- quence of such non-attendance, the plaintiff was compelled to withdraw the record. The defendant pleaded not guilty, and that the plaintiff might have proceeded to trial without his testimony. It was held, that the de- fendant having admitted that the plaintiff had a good cause of action against A., it was not competent to the defendant to avail himself of the record in the former suit (which was put in by the plaintiff for the pur- pose of showing that it had been withdrawn), in order to show, that the declaration was so defective that a verdict thereon would have been fruitless. (2) There still remains a question to be considered, which the operation of the new rules of pleading, by limiting the* effect of the general issue, and thereby increasing the number of pleas upon the record, has rendered one of more practical importance than it hitherto had been. How far admiasiou before jury. The question is, how far an admission of a fact made by a party in the pleadings is to be deemed to be before the jury, so as to warrant them in drawing any inference of fact from that admission. The point appears first to have been raised in the case of Edmunds agt. Groves ;(3) when Alderson, B., stated the rule in the following terras ; " An admission on the record is merely a waiver of requiring proof of those parts of the record which are not denied, the party being content to rest his claim on the other facts in dispute ; but if any inferences are to be drawn by the jury, they must have the facts, from which such infer- ences are to be d^wn, proved like any other facts." Lord Abinger, 0. B., and BoUand, B., the other judges present, gave, no opinion upon the subject. Alderson, B., afterwards intimated an adherence to his own opinion in the cases of Bennion agt. Davison,(4) Smith agt. Martin,(5) and Carter agt. James.(6) His Lordship's opinion appears to have been founded upon the following reasons: that the pleadings are not before the jury, but only (1) Pegg T. Stead, 9 0. & P. 646. (2) Needham v. Frazer, 1 C. B. 816. (3) 2 M. & W. 642. (4) 3 M. & "W. 179. (5) 9 M. & W. 304. (6) 13 M. A "W. 137. SEC. v.] By Pleading over. 797 the issue(l) — that the omission to traverse an allegation in pleading amounts to no more than a protestation would have done under the old forms of pleading(2) — that it would be unjust and unreasonable to pre- vent a party, by the rules of pleading, from denying a particular fact, and ' yet to call upon the jury to treat that fact as proved ; for if that were the law, a double replication would be the very essence of justice(3) — and that if an admission on the record were to be taken as an admission for all purposes, it might be used for the purpose of discrediting the witnesses, as e. g., where it was admitted on the record, by not being denied, that a party called as a witness had committed usury .(4) It may be remarked, that this opinion of Alderson, B., though it has not been dissented from by the other judges of the Court of Exchequer, does not appear to have been ever expressly adopted by them. On the other hand, the Court of Queen's Bench, after having the cases of Edmunds agt. Groves, Bennion agt. Davison, and Smith agt. Martin before them, have, in the cases of Bingham agt. Stanley,(5) and Eobins agt. Maidstone,(6) laid it down as their deliberate judgment, that an ad- mission made in the course pf pleading, whether in express terms or by omitting to traverse what has been alleged, must be taken as an admission for all purposes regarding the issue arising from that pleading, whether the facts relate to the parties or to third persons, provided that the allega- tion so made be material. And, in the former case, Patteson, J., said he could not understand the distinction between admissions for the purpose of pleading and admissions for the purpose of trial.(7) The Court of Common Pleas have not as yet had occasion to pronounce any decision upon the subject ; but in the case of Fearn agt. Filica,(8) where the question was incidentally raised, and the conflicting cases of Edmunds agt. Groves, Bennion agt. Davison, and Bingham agt. Stanley, were brought before the notice of the court, Cresswell, J., remarked :(9) " I take it that what my Brother Alderson means was, that the fact put in issue was to be proved, just as if no admission were made on the record ; that is, that an admission on the record is not to be taken to prove the issue. If the rule is not as stated by my Brother Alderson, this sin- gular state of circumstances might arise, — a counsel might ask a jury. (1) 2 M. & W. 643. See also by Tindal. C. J., in Peam v. PUica, T M. & G. 51T. (2) 3 M. & W. 181. (3) 9 M. & W. 308. (4) 13 M. & W. 145. See also Boileau v. RudUn, 12 Jur. 899, Exch. ; S. 0., 2 Exch. R. 665. (5) 2 Q. B. 117, 127. (6) 4 Q. B. 811, 816. See also Gale t. Lewis, 11 Jur. 730, Q. B. ; S. C, 9 Q. B. 730. (7) 2 Q. B. 121. (8) 7 M. & G. 513. (9) Id., pp. 517, 518. 798 Of Admissions on the Record, [CH. X from the mere state of the record, to infer a fact whicli was directly in issue."(l) It may, though with great dif&dence, be suggested, that the difference which appears to exist between some of the learned judges upon this point is, perhaps, rather one of terms than of principle ; and that the dif&-, culties will be at least considerably diminished, if the attention is steadily :directed, in each case, to the precise point which is put in issue by the pleadings, and the affirmative or negative of which the jury have to de- termine. For it seems clear, that where any particular fact is affirmed on the one side and denied on the other, no previous admission in the plead- ings can be taken as evidence to prove either the existence or non-existence •of that fact. This position will be best illustrated by an examination of one or two of the cases in which the question now under discussion has arisen. In Edmunds agt. Groves, (2) the circumstances were somewhat singular. It was an action by the indorsee against the maker of a promissory note. The defendant pleaded that the note was illegal in its inception, and that it was indorsed to the plaintiff with notice of such illegality, and without consideration. The plaintiff replied that the note was indorsed to him •without notice, and for a valuable consideration. Upon this, issue was joined. At the trial before Lord Abinger, C. B., no evidence was offered on either side; and the question was, which party, with ref- erence to the state of the pleadings, was entitled to the verdict, or, in other words, upon whom the burden of proof lay. His Lordship ruled, in effect, that the burden of proof lay upon the defendant to establish the affirmative of the issue, and as he offered no evidence, the plaintiff was entitled to the verdict. And the Court of Exchequer after- terwards upheld this ruling. It was contended, that inasmuch as the plaintiff, by his replication, had admitted the original illegality of the note, he was bound, upon the authority of Heath agt. Sansom,(3) to prove that he gave consideration for it. But Lord Abinger, C. B., said, he thought it was incumbent on the defendant, who had set up as a defence the fact that the note came into the hands of the plaintiff with notice of its original infirmity, to have produced some evidence to prove it ; or, in other words, that the onus prohandi was on him. Alderson, B., indeed, after laying down the position above cited, said, " there was nothing to go to the jury in this case from which they could draw the inference of fact that the note was illegal in its inception." But, in truth, the question of the original illegality of the note was quite beside the point in issue, which was, Avhether or not the plaintiff had received notice that the note was an illegal one when he took it, the affirmative of that issue being alleged by the defendant. (1) As to statements in bills in equity, see BoUeau v. Eudlin, 12 Jur. 899, Exoh. ; S. C, 2 Bxoh. E. 665. (2) 2 M. & "W. 642. (3) 2 B. & Ad. 291. SEC. v.] Effect of Particulars of Demand. 799 The case of Bingham agt. Staiiley(l) was an action by the bearer against the maker of a banker's check, payable to L. or bearer. The de- fendant pleaded, in effect, that he gave the check to L. for an illegal con- sideration, and that he delivered it to the plaintiiff -without a good cotisid- eration : the plaintiff replied that he gave good consideration for it ; whereupon issue was joined. In this case the court decided — inde- pendently of the question as to the admission upon the record of the original illegality of the check — that the af&rmative of this issue lay upon the plaintiff, and that he was therefore bound to prove that he- had given consideration for the note. And although dissenting from the doctrine laid down by Alderson, B., in Edmunds agt. Groves, they perfectly con- curred in the correctness of the decision in that case, upon the ground above stated ; namely, that the defendant had there alleged the affirmative of the plaintiff's knowledge of a certain fact, and was therefore rightly put to prove that al]egation.(2) 4. Of the effect of a particular of demaud. The courts of common law have a general jurisdiction, independently of any statute, to order particulars of demand, or of set-off, to be given, in order to prevent the necessity of applying to a court of equity, and to enable them to administer justice effectually between the parties. It is now required by a general rule of all the courts, (3) that where the declar- ation contains counts in indebitatus assumpsit, or debt on simple contract, the plaintiff shall deliver full particulars of his demand under those counts, with the declaration, and that a copy of such particulars, and also of the defendant's set-off (if any), shall be annexed to the record.(4) E£fect of bill of partioulara. Although the bill of particulars, as it is technically termed, forms, prop- erly speaking, no part of the record, (6) still its contents have much the same operation as the admissions made in pleading, which have just been considered. The effect to be given to a bill of particulars has become of more im- portance since the promulgation of the new rules of pleading, which re- quire that payment shall be specially pleaded,(6) and shall in no case be given in evidence in reduction of damages or debt.(7) (1) 2 Q, B. 117. (2) As to the effect of a plea of abatement by way of a/dmissioa, see PasmoreT. Bousfield, 1 Stark. R. 298 ; Weleker v. Le PeUetier, 1 Camp. 4t9; -Moms v.Lotan, I.M00.& iR. 233;; .CreUin v. Calvert, 14 M. & "W. U ; HUl v. "White, 6 N. C. 26. (3) B. Trin., 1 Wm. IV, 2 B. & Ad VSS. (4) As to non-eomplianGe wita an order for particulars of set-off,- see Toiing v. Geiger, 18 L. J. (N. S.) C. P. 43. As to the omission of dates -w-hen ordered, see Ibbett v. Leaver, 16 ,M. & "W. lYO. (6) See Booth v. Ho-ward, 5 Dowl. P. C. 438. (6) R. Hil., 4 -Wm. IV, Pleadmgs in ParticiOew Actions, 1, 5 B. & Ad. viil (7) R. Trin., 1 Vict., 8 A. & E. 280. 800 Of Admissions on the Record, The judges have also framed a rule,(l) that " if the plaintiff, in order to avoid the expense of a plea of payment, shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plaintiff, it shall not be necessary for the defend- ant to plead the payment of such sum or sums of money. But this rule will not apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, without giving credit for any particular sum or sums."(2) Before adverting to the general effect of a bill of particulars, it may be expedient to bring before the notice of the reader some of the leading de- cisions which have taken place upon the construction of this rule, which, it Will be observed, is limited to matters of payment of money. Where a plaintiff gives credit in his particulars for a sum of money, this will be taken as an admission that the sum was paid hy the defendant.{2) If the plaintiff gives credit for certain payments, and goes for a balance, and the defendant pleads payment, this plea will be taken with reference to the balance.(4:) If his particulars claim a certain amount, and state that he goes for a balance generally, without giving credit for any par- ticular sums, and the defendant does not plead payment or set-off, the plaintiff is entitled to recover, if he proves a claim to any amount ;(5) if the defendant does plead payment or set-off, it is a question for the jury, under all the circumstances of the case, whether the balance claimed means a balance after giving credit for the payment or set-off.(6) The rule of court does not apply to plea of set-off ; where, therefore, the plaintiff, in his particulars, shows claims against the defendant, and admits certain claims (to a less amount), in the nature of a setoff by the defendant, it was held that the plaintiff was not concluded by the admis- sion of the set-off.(7) With regard to the general effect of admissions in a bill of particulars, it has been before mentioned, that a bill delivered by an attorney to his client for business done during a certain period, or by a tradesman for goods sold, is strong presumptive evidence against any additional item within the same period. The party is not, however, precluded from show- ing that items, included in a subsequent bill, have been omitted by mis- (1) R. Trin., 1 Vict. 8 A. & E. 280. (2) The rule upon this last point was previously unsettled. Sea Emeat v. Brown, 3 N. C. 614 ; Coates V. Stevens, 2 C, M. & B. 118 ; Nioholl v. "Williams, 2 M. & W. 158 ; Kenyou v. "Wakes, Id. 164; Ferguson v. Mahon, 9 A. & E. 245. (3) Smethurst v. Taylor, 12 M. k W. 545. (4) By Alderson, B., in Bastwick v. Harman, 6 M. & W. 13, 16. As to tlie allowance of such a plea under these circumstances, see what is said by Patteson,'J., 1 Q. B. 399. (5) Morris V. Jones, 1 Q. B. 391. And see Wilton v. Snook, 12 M. & W. 805; Green v. Smithies, 1 Q. B. 196. (6) Lamb v. Micklethwaite, 1 Q. B. 400 ; Townsou v. Jackson, 13 M. & "W. 314. (1) Rowland v. Blaksly, 1 Q. B. 403. See also Morris v. Jones, and Townson v. Jackson, v,t supra. SEC. v.] How far Conclusive. 801 take in the former bill, and that the business, which is the subject of the charge, has been done by him for the defendant. A bill of particulars, however, is more conclusive; its sole object is to inform the opposite party of what he ought to come prepared to try ; and it will effectually preclude the party who delivers it from giving evidence of any other de- mand not there stated. Thus, where a declaration contained a count for money had and re- ceived for the plaintiff's use, and also a demand for horses sold by the plaintiff to the defendant, and the bill of particulars specified the last demand alone, it was decided that the plaintiff could not give evidence of horses being sold by the defendant as the plaintiff's agent :(1) for a con- tract for the absolute sale of horses to the defendant is essentially different from a contract to repay money received on a sale of horses by commis- sion ; and the proceeds of such a sale by the defendant could only be re- covered under the count for money had and received, which the plaintiff abandoned by confining his bill of particulars to the demand stated in, the other count. In an action to recover the value of property deposited with the de- fendant for safe custody, the declaration alleged two breaches : — 1. That he had not taken proper care of the property ; 2. That he had not re- turned part. The particulars took the same distinction, giving two sets of articles, one set as damaged, the other as not returned. In the particu- lars, some glass was described as not returned, but it appeared by the evi- dence that the glass so described had been broken. It was held, that damages for the broken glass could not be recovered under the head of the particulars which related to goods not returned.{2) In this case it was supposed that the defendant would be deceived by the particulars ; but • where the parties must have understood each other, although the manner in which an item is described may not be quite correct, the court will not be so strict in its construction of the particulars. Thus, where, in an action for goods sold, the plaintiff claimed a balance, after allowing credit for a sum paid at different times ; and it appeared at the trial that part of the claim was for the price of an article which had been returned by the defendant, it was held that the plaintiff might show that the price of the article was also a part of the sum allowed as money paid.{3) "Where the declaration contains a count on a promissory note, together with money counts, and the particular of demand is confined to the note, (1) Holland v. Hopkins, 2 B. & P. 243. See also Maoarthy v. Smith, 8 Bing. 145 ; Davenport V. Davies, 1 M. & W. 570. (2) Moss V. Smith, 1 M. & G. 228. See also Doe d. Winnall v. Broad, 2 M & G. 523, as to the non-admisaibility of evidence of breaches of covenant not included in the particulars of breaches delivered under a judge's order. (3) Lamb v. Micklethwaite, 1 Q. B. 400. Vol. I. 51 802 Effect of Partiealars of Demand, [CH. X. tlie plaintiff will not be allowed to proTe the consideration for wMcli tlie note was given, in order to recover under the money counts.(l) Nor can he avail himself of a verbal admission by the defendant acknowledging that he owed the plaintiff a sum of money, which corresponded with that due upon the note, nothing being said at the time about the !aote.(2) So, where the declaration contained counts on three several bills of ex- change, but in the particulars the plaintiff claimed in respect of the first of them only, it was held that the plaintiff clearly could not recover on the other two,' — though they were admissible in evidence on a collateral inquiry, whether two of the defendants had ceased to be partners at the time when the bill was given, in respect of which they were sought to be charged.(8) But where the declaration contained two counts, each on a bill of exchange, and the particulars stated the action to be brought to recover the amount of the bill mentioned in the first count with interest, and that the plaintiff would rely on the whole or any part of the declaration for the recovery thereof, the plaintiff was allowed to recover on the second count.(4) -Although the plaintiff, on perceiving the defect of his first particular of demand, which only mentions a promissory note, delivers a second bill of particulars large enough to comprehend the original debt, yet this will iiot avail him, unless the second particular has been delivered under a judge's order. (5) On the other hand, where the declaration, in addition to the common (1) Wade V. Beadey, 4 Esp. 7. (2) Eoberts v. Elsworth, 10 M. & W. 653. The court in thia case granted a new trial on pay- ment of coats by the plaintiff, with leave to amend his particulars (3) Duncan v. Hill, 2 B. & B. 682. And see Breckon v. Smith, 1 A. & E. 488 ; Cooper v. Amos, 2 0. & P. 26T. (4) Hay v. Fisher, 2 M. & W. 722. And see by Tindal, C. J., in Chisman v. Count, 2 M. & G. 310. (5) Brown v. Watts, 1 Taunt. 353. Note 215. — But a, judge's order is not sufficient after issue joined. The amendment can then be made on application to the court only. EuUer v. Roosevelt, 4 Cowen's Eep. 144 ; Graham's Pr. 431. These amendments are allowed, on a proper case, at any stage of the cause before the final trial, on terms. Spawn v. Veeder, 4 Cowen's Rep. 503. (Under the Code of New York it is not necessary for a party to set forth in a pleading the items of an account therein aEeged; but he must deUver to the adverse party yvithin ton days after a demand thereof in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof. And the court, or a judge thereof, or a county judge, may order a " further account," whe*e the one delivered is defective ; and the court may in all cases order a bill of par- ticulars of the claim of either party to be furnished. When fiirnisbed, l!he party is confined on the trial to the iteiils stated in the bill. Bowman v. •Eftrie, 8 Duer, '694 Where the 'dematad dB isingde, as where an Botion ds bioiaght for ■damages in causing death by wrongful act, a bUl of particulars will not be omiei-ed. Muiphey v. Eapp, 1 Duer, 669.) SEC. v.] Errors in Particular. 803 counts, contains special counts, of whiclino rule of practice, nor previously obtained judge's order, calls upon the plaintiff for particulars, and the particulars, furnished to the defendant and annexed to thq record, relate to the common counts only, the plaintiff will not be precluded from giving evidence in support of the special counts. Thus, before the general rule previously referred to,(l) in an action on a bill of exchange, and for the price of goods sold and delivered, it was held the plaintiff might recover on the bill, though the particulars related to the goods only.(2) If the plaintiff, either before or after delivering a bill of particulars, makes a demand of payment only for a part of the articles specified in the bill, such a demand will not have the effect of confining him in his evidence, nor supersede the bill of particulars.{3) In an action on a bill or note, if the plaintiff is entitled to recover the principal sum due, he may recover interest also, as arising out of the principal, and incident to it, though it has not been specifically claimed in the particular of demand, (4) for interest may be given by the jury as damages for the non-payment of the debt. In an action of assumpsit, where the defendant pleaded in abatement, that the promises were made by himself and another person jointly, on which plea issue was joined, and it appeared from the bill of particulars, that some of the articles had been famished to the defendant jointly with the person named in the plea, and they were not distinguished from the rest of the articles. Lord Kenyon, C. J., held that the plaintiff was bound by his biU of particulars, which supported the defendant's plea : and therefore be nonsuited the plaintiff,(5) and the court afterwards refused a (1) E. Trin., 1 Wm. IT, swpra, p. T99. (2) Cooper t. AmoB, 2 C. & P. 26Y. See also Day v. Daviea, ,5 Id. 340 ; Fisher v. Wainwright, 1 M. & W. 480. (3) Short V. Edwards, 1 Esp. 374. (4) Blake v. Lawrence, 4 Bsp. 147. (5) Colson V. 86%, 1 Esp. 452 ; S. C, Tidd. Pr. (9th ed.), 600. NoiE 216. — The New York Supreme Court ha¥e departed from the case cited in the text, on good authority, but without citLog any. Brittingham y. Steyeos, 1 HaJl's Rep. Jjf. Y. S. C 379. The court say a party furnishing a bill of particulars, is never held to furnish evidence against him- self. In practice, it is considered a part of the pleadings. Id. 381. The contrary was expressly held in Eymer v. Cook (1 Mood. & Malk. 8.6, 87, note a), by Eullock, B., and B^ijey, J,, A. D. 1827, though they were reminded by Starkie of Brown v. Watts (1 Taunton, 353i), which he said tended to show that the particular was to be taken as a part of the pleadings, and therefore not evidence. The decision in Bymer v. Cook was at Nisi Prius. The previous cases of Miller v. Johnson (2 Bap. Rep. .602, A. D. 1797), and Harrmgton v. Maomorris (5 Taunton, 228, A. D. 1813), were ^entirely ovM-loobed, where (and in the latter case on full consideration), the court held that a particular, under a notice of set-off, was a part of the notice ; and both being in the nature of a plea, neither was evidence. This notion is bo well ;settled in New York, that the Supreme Court did not think it worth while to cite authoritiea. Fleurot y. Durand, and Ryok- man v. Haight, 14 John. R. 329, note 218. 804 Effect of Particulars of Demand. [CH .X. rule nisi to set aside the nonsuit. But the authority of this case has been since doubted. (1) ,, Errors in particular. The use of a bill of particulars is to prevent the inconveniences which might otherwise arise from the general and undefined statements in the plaintiff's declaration, and to apprise the defendant of the particulars of the demand which the plaintiff has against him.(2) If it gives sufiicient information to the opposite party to guard him against surprise, it answers the purpose for which it was intended, and will be suf&cient, though it (1) HiU T. White, 6 N. C. 23. (2) Note 211. — The defendant may call for this bill whenever the particulars of demand are not disclosed in the declaration (Mercer v. Sayre, 3 John. Eep. 248) ; and it may he demanded in real actions as well as in ejectment (Tischer v. Conant, 4 Cowan's Eep. 396; 2 R. S. N. T. 341, § 16); in actions ex delicto, as well as in actions ex coniraciu. Accordingly, it was allowed in trover (Humphrey v. Cottelyou, 4 Cowen's Rep. 54) ; and under a general notice of set-off. Mercer v. Sayre, supra. For other cases, see 1 Cowen's Rep. 5T2, note a, and Graham's Pr. 433. On an affidavit that the plaintiff was a seaman, who had served on board the defendant's ship ; that the defendant had paid sufficient money into court to meet the plaintiff's claim for services over and above what had been before paid ; that the plaintiff had since entered successively on board several ships; and on one under a feigned name; and that the person who delivered the issue, said he did not know where the plaintiff lived, but that he was in London; a rule was made that the plaintiff's attorney furnish a note in writing to the defendant, acquainting^m who the plaintiff was, of what profession, trade or business, and where he dwelt ; and that the defendant, his attorney or agent, should have a view of the plaintiff, on giving notice for that purpose. Oolhnson v. Gill, 4 Doug. 206. In assault and battery, brought against several indi- viduals for their conduct at a large public meeting, by a stranger, whose name and residence the plaintiff's attorney had refused to disclose, the defendant having pleaded a justification, the court made an order that the plaintiff's attorney disclose the place of residence and occupation of the plaintiff to the defendants, and that in the meantime proceedings be stayed. Johnson v. Birley, 5 Barn. & Aid. 641 ; S. C, 1 Dowl. & Eyl. 114. In a joint action for a libel by several, a rule was made against the attorney of one of them, that he should give an account in writing of the places of residence and occupations of the others, and that in the meantime, proceedings be stayed. The motion was granted, on an affidavit that the defendants had made unsuccessful inquiries, and were ignorant of the plaintiffs ; and that the attorney had refused all information. Worton V. Smith, 6 Moore, 110. And where the defendant had pleaded in abatement the non- joinder of several persons, to whom the plaintiffs were strangers ; and, on inquiry at certain places and of the defendant's attorney, information of the persons whose names were mentioned in the plea, could not bo obtained ; and it being that the plaintiffs should learn the truth, so as to know whether it were best to discontinue their action, an order was made that the defendant's attorney forthwith deliver a particular of their places of residence and additions, or, that in default thereof, the plea be set aside. Taylor v. Harris, 4 Barn. & Aid. 93. A similar proceeding was warmly resisted, but finally granted by the Court of Exchequer. Newton v. Verbeke, 1 Younge 6 Jerv. 257. In this case, an order was made by a judge (HuUoclc, B.), in the same manner as the usual order for a particular ; and though the defendants made an affidavit that they were not able to give satisfactory information, ho adjudged it to be evasive, and ordered the plea to be quashed. On a motion to set aside this order, the court sustained it, placing it on the ground of incidental power, in all cases, to compel the party by a particular to give such necessary informa- tion as the generality of his pleadings fails to furnish in any respect. See, also, Tomliu v. Brookes, 1 Wils. 246, cited by Savage, 0. J., llWend.166. The plaintiff is under no obligation to furnish particulars of set-off or payment, by defendant, where he makes the defendant certain credits in his complaint. Williams v. Shaw, 4 Abb. Pr. R. 209. SEC. v.] Errors in Particular. 805 may te in some respects inacc urate. (1) Thus, in an action of assumpsit for money paid to the defendant's use, where in the bill of particulars an (1) Note 218. — ^Where the deolaration is on a bill of exchange, promiaaory note or other special contract, and also includes the common counts, and a judge's general order is obtained for a bill of particulars, the plaintiff, though he omit to mention the bill of exchange, note, &o., in the partic- ular, may yet recover upon it. Cooper v. Amos, 2 Oarr. & Payne, 124; The People ex rel. War- ing V. Monroe 0. P., 4 "Wend. 200. And where there was an order to deliver a particular of set- off within one fortnight ; otherwise the set-off to be excluded, and the particular was not deliv- ered till after that time ; yet it appearing that after the particular was dehvered, an order, by consent, was made to amend the deolaration, this was held a waiver of the irregularity as to time in delivering the bill; and the evidence was admitted. Wallis v. Anderson, 1 Mood. & Malk. 291. The plaintiff's bUl of particulars is considered as a part or amplification of the declaration (Pleurot V. Durand, 14 John. Rep. 329 ; Brittingham v. Stevens, 1 Hall's Rep. N. T. S. 0. 3'79); so that if not delivered pursuant to an order, a motion for non pros, will lie. Pleurot v. Durand, 14 John. Rep. 329. So, as we have seen ante (note 216), when it comes from the defendant, it is held a part of his notice of set-off; and unless delivered within a certain time specified, the no- tice itself is shut out by the order. Tiewed in this light, it need not state the credit side of the account ; because pleadings do not state matters of defence or answer to themselves ; and an- other reason is that the opposite party must know what sums he has paid as well as the party giving the bill. Ryckman v. Haight, 15 John. Rep. 222 ; Whaley v. Banks, and Pemberton v. Bellington, Mann. Dig. Practice, B, 6, S. P. But see Mitchell v. "Wright, 1 Bsp. 230, and Adding- ton V. Appleton, 2 Camp. 410, e contra. Nor is it necessary to state in the bill any matter of mere defence, answer or rebuttal to the claim of the other party. E. g., money paid on an order drawn by the defendant, is admissible, in answer to the defendant's demand, though the plain- tiff's particular do npt mention it. Brown v. Denison, 2 Wend. 593. In this case, the plaintiff, it is true, charged the money in the form of an account ; and as such the referees rejected it, be- cause not in the particular ; but Savage, C. J., said : " The account offered was not for the pur- pose of making out the plaintiff's case in the first instance, but to rebut evidence produced by the defendants." Id. 595. A bill is always " considered sufficient, if it fairly apprise the opposite party of the nature of the claim, so that there can be no surprise." Per Savage, 0. J., in Brown v. Williams, 4 Wend- 360. 368, 369. And see Smith v. Hicks, 5 Wend. 48. This is the cardinal object. Form is alto- gether overlooked. A voluntary letter from the plaintiff's attorney, in answer to a letter of the defendant's attorney requesting a bill, that " the suit is on the note declared upon" (Williams v. Allen, 1 Oowen's Rep. 316); or a bill under an order, referring to an account before delivered (Hatchet v. Marshal, 1 Peak. N. P. Cas. 171; James v. Goodrich, 1 Wend. 289); is sufBoient. Dates should be given with as much particularity as possible, with regard to which the judge will require greater or less strictness, in his discretion, on summons for amending the bill. Hum- phrey V. Cottleyou, 4 Cowen, 54; Quin v. Astor, 2 Wend. 577. And see Newton v. Terbeke, ante, note 216. Though in point of variance on trial, much greater differences than those of mere days or months have been disregarded, yet in this respect the variance ought not to be such as to mislead. Where the plaintiff's bill was for various items of labor under date of April 20, 1821 , and he offered proof of labor at sundry times in 1817, 1818, 1819, the New Tork Supreme Court held he must be confined to the year, and on error the decision was holden right. Quin v. Astor, 2 Wend. 577. The particular should give as much information as a special declaration ; omitting the formal or technical parts. The Court, per Parker, C. J., in Babcook v. Thompson, 3 Pick. 448. Where the plaintiff declared in one count specially, inserting a general count which would also embrace the matter of the first count ; and in his particular referred to the first count as con- taining the sole ground of the action ; though the proof varied from the first count ; yet held it might be received under the general one, and that too upon this bill of particulars. So that a special count may be good as a particular, though bad as a count ; for yet the defendant may not be misled. Hess v. Pox, 10 Wend. 436. This may be made still more plain by an English case. Where the particular specified a bill of £60, bearmg date on a certain day, and the evidence was 806 Effect of Particulars of Demand, [CH. X. of a bill for £63, dated on a different day, in ths same year and month, Abbot, J.,: held the va- riance to be immaterial, as not being calculated to mislead. Dunn v. Thomas, Mann. Dig. Prae- tice, B, c, pi. 17, p. 299, of the Am. ed. This would have been clearly a fatal variance in a count. But where the declaration was for money had and received, and the particular for " one $1,000 bank bill, bank not recollected, $1,000 ; two $500 bills of Union Bank, $1,000 ; two checks upon Boston banks amounting to $250 ; bank bills current in the commonwealth amounting to $500 ;" and at the trial the plaintiff proceeded for money fraudulently won at gaming with cards^ the judge directed a nonsuit. Babcook v. Thompson, 3 Pick. 446. The court said : "Telling the defendant that the a«Stion was for bank biUs, gave him no information that would aid him in making his defence." Id, 448i Tet, according to the English and New Tork praetiea, a mere defect or insufBciency is left to the correction of a judge's order, upon summons ; and cannot be objected at the trial. There the objection usually sounds in a veuriance, which misleads. Ac- cordingly it was held in Maryland, thati where the plaintiff, in hisi bill of particulars, alleges that money was had and received in a particular manner, or on a particular ground or consideration ; on the trial he cannot resort, in evidence, to any other manner, ground or consideration. De Sobry v. De Laistre, 2 Ear. & John. 191, 221, 222, 223. Tet in respect to variance, these bills are regarded with a spirit very faivorabl© to letting in every claim under them, which can be covered by any possible construction of their language. This we have, in part, seen already ; and it is further evinced by a series of cases. Thus, in an action by the assignees of a bankrupt, the declaration stated the cause of action to be money had and received to the use of the banhmpi ; the particular of demand, incorrectly described it^ as had and received to the use of the plaintiffs. This was held not to be a fatal variance, it not appearing that the defendant could, be misled. Tucker et al. v. Barrow, 1 Mood. & Malk. 13*7. So the omitting of a letter used between the Christian and surname in the title ai the cause ; for the law knows of but one name (Eosevelt v. Gardinier, 2 Gowea's Eep. 463) ; stating the indorsement of a note as in blank, which was filled up on the trial (Norris v. Badger^ 6 Cowsp's Eep. 449) ; one of two joint debtors being sued alone, and he omitting to plead in abatement, the bill being entitled and the charges made as against him alone (Gay v. Gary, 9 Cowen's Eep. 44) ; where the notes were described as bearing interest from the date, though they did not, the bill giving a correct description in other respects (MoNair v. Gilbert, 3 "Wend. 344) ; where the bill stated that the action was for money received from D., on a note drawn by E., for $300, dated, &c., payable to D., indorsed by D., then by the plaintiff, and then by the defendant, on ivhich defendcmi received $300 from B. and the same sum, &o., from the plaintiff; and proof, that what the defendant received of D. was noi cash, but specific articles to on wncertairt amovmt, ami the whole note was released to D. by the defendant, who afterwards, as last indorsee, demanded and received the same sum of the plaintiff; for the defendant was informed by this bill, that the money which the plaintiff had paid was sought to be recovered back ; and though the bill spoke of $300 paid by D., still, if the transaction amounted in law to & payment, or (iis- cha/rge, or release of that sum, there could have been no surprise (Brown v. Williams, 4 Wend. 360, 368, 369) ; where the bill stated the foundation of the claim truly, but specified the amount (being money had and received) at $605 63, whereas the proof was of $644.46 (Smith v. Hicks, 5 Wend. Eep. 48) ; where there was a misdescription of the defendants as belonging to the PiU^ line, the evidence being that they belonged to a different company, other matters appearing in the bill sufBeient to apprise the defendants of the particulars sought to be recovered, so that they could not be misled (Benson v. Brown, 10 Wendi 258) ; and where an insurance broker's claim was for services, in effecting for the defendants a policy of insurance, the broker covenanting to pay the premium ; the declaration being for work and labor and divers premiums ; and the par- ticular simply "For insurance." Power v. Butohor, 10 Barn. & Cress. 329. A partioular for money paid is supported by proof of a payment in land, or other thing equivalent to money. Bonney v. Seeley, 2 Wend. 481. See Ainsleo v. Wilson, 1 Cowen's Rep. 668 ; and Randall v. Rich, 11 Mass. Rep. 498, S. P. As we before noticed incidentally, a deficiency in the bill as not giving adequate notice, must be supplied on a judge's order ; and cannot be objected at the trial. James v. Goodrich, 1 Wend. 289. It is proper to add that any ground of variance must be taken, and objected at the trial; or it will be considered as waived. Smith v. Hicks, 1 Wend. 202. SEC. v.] Mrrors in ParHstihr. 807 item for money advanced was bj mistake written under the name of A. B,, instead of being written under that of 0. D., in another part of the particular, and thus appeared to have been advance to the former, Lord EBenborough allowed the plaintiff to prove that the item in question was intended, and must have been understood, to refer to the latter name, but by mere clerical error had been misplaced ; and that if the defendant could show by affidavit that, he had been misled by the plaintiff's particu- lar, it might furnish a ground for the court afterwards to set aside that particular sum.(l) So, where the work, for which the action was brought, was stated by the particular to have been done in a month when in fact no work had been done, the plaintiff was allowed to give evidence of his having done work for the defendant in another month.(2) Where the particulars of the plaintiff's demand were on an aocounit stated, with this addition, " a,s appears by a memorandum under the hand of the defendant of this date," and the memorandum could not be re- ceived for want of a stamp ; it was held, that the account stated might be proved by other evidence than the memorandum ; and tEiat parol evi- dence might be given of an admission of the money being due, and of a promise to pay by installments, though the admission and promise were made at the same time with the memorandum, and embodied in it.(3) In an aetion brought hy one partner against another to recover a bal' ance due on a statement of accounts, where the bill of particulars was confined to the balance due on separate accounts,(4) the plaintifEJ^ in sup- port of this demand, gave in evidence an account in which the defendant made himself debtor to a certain amount, and the defendant in answer to this evidence produced an account subsequently rendered by the plaintiff, according to which there appeared to be a balance due to the defendant on the separcete accounts ; but on the opposite side of the page, there was a statement also of the partnership accounts, on which the balance was in favor of the plaintiff, and greatly exceeded the balance on the separate account. - It was objected that the plaintiff could not recover beyond his particular ; Lord Ellenborough, C. J., however held, that the defendant himself had given the plaintiff a better case than he was at liberty to make for himself, and tiiat the plaintiff was entitled to a verdict for all (1) Day T. Bower, 1 Camp. 69, n. See Brown v. Hodgson, 4 Taunt. 189. See aiso Davies t. Edwards, 3 M. & 8. 380, an action of debt to recover rent, where the locality of the premises, not desmbed in the pleadings, had been misdesoribed in the particular ; but the objection was oyer- ruled. (2) Millwood V. "Walter, 2 Taunt. 224. See also Harrison v, Wood, 8 Bing, 311 ; Lambuihy, Eoff, Id. 411 ; Green v. Clark, 2 Dowl. P. C. 18. And see Moss v. Smith, and Lamb v. MicMe- thwaite, sv^a, pp. 546, 547 ; Eirkman v. Jervis, 3 Jur, 605 1 Parsons v. Wilson, 4 Scott ISf, R. 1; S. C, 1 Dowl (N. S,) 181. (3) Singleton v. Barrett, 2 C. & J. 368. (4) Hurst V. WatMns, 1 Camp. 68. 808 Effect of Particulars of Demand. [CH. x. that had been proved to be due to hiin.(l^ The parties afterwards came to a compromise, and agreed upon the sum to be recovered. So it has been held, (2) that although the bill of particulars confines the plaintiff's evidence to the causes of action mentioned in the particulars, yet if the defendant, in giving evidence for bimself, gives evidence also for the plaintiff of some claim not included in the particulars, the plaintiff as to that claim is no longer confined to the particulars, but may avail himself of the defendant's evidence. (1) Note 219. — But the oourta in New York hold, that where the defendant himself, in opposing the plaintiff's demand, speoiSed in his bill of particulars, gives evidence which supports the plain- tiffs declaration, though such evidence is out of the bill, the plaintiff may recover upon it ; as in this case : the plaintiff's declaration was upon a promissory note against the defendant alone, with the common counts ; the plaintiff in his bill claimed the note alone. On the trial, the defendant proved that the note in question was usurious, as being given for another note and an account due to the plaintiff from the defendant and a third person ; the note in question including usurious interest on the claim which it was thus given to secure. Held, that the plaintiff might recover the amount of the original note and account, there being no plea in abatement. WilUams v. AUen, 1 Cowen's Eep. 316, 318. This was held on the authority of Hurst v. Watkins, cited in the text. When the plaintiff is proceeded against, the first order is, on a proper affidavit, that the partic- ular be delivered, or cause shown at a fixed day and place, proceedings in the meantime to be stayed. On showing the service of the order and a non-compliance, a second order is made that the party deliver a particular (generally), and that, in the meantime, all proceedings stay. The proceedings are the same against the defendant, except that the second order shuts out his set- off, &c., on non-compliance. The demand cannot be made till the pleading or notice comes in ; but then may be at any time before trial. For these and other particulars of practice on this head, see 1 Cowen's Eep. 572, et seq. note a; and Graham's Pr. ch. 4, p. 434 to 440; Rowan v. Merritt, 9 Wend. 443; Passett v. Dorr, 11 Id. IT'7; and Smith v. Lehie, 1 Rep. Const. Ct. 240. In Llavelock v. Chevely, sited in the text, the cause stood in the paper for trial, July 10th, 1817. Park, J., had, twenty-two days before, made an order that the defendant forthwith deUver a particular ; but he had not done so till ten days after, and twelve days before the mat- ter was moved at Nisi Prius. The object now seemed to be the exclusion of the set-off, by a sum- mary order of Gibbs, C. J., who was holding the court. The claim was on an attorney's biU, and it was agreed that it had not been delivered in time for taxation. The chief justice held that by not applying to a judge (to the court as the case says) to have the set-off excluded, but wait- ing tin this time (when the cause stood for trial), the right to reply was waived. The chief justice said, " the demanding and granting of particulars is almost a new system within the recol- lection of many of us. They undoubtedly facilitate the trial of a cause, but they must not be permitted to obstruct the justice of it. The party who objects to the particular, as insufllcient must make his complaint at the proper time. He cannot wait tUl the trial of the cause, and then raise an objection which, if earlier made, might have been disposed of." These remarks are general, and import that in any case, where a party lies by, under a defective bill of particulars, and allows his adversary to take important steps, he will not then be permitted to call for an order in the matter, if that order will operate to the prejudice of his adver- sary, whether plaintiff or defendant. Such, too, appears to be the principle advanced by Suther- land, J., in Goodrich v. James (1 Wend. 289). Where the defendant applies for a biU after issue joined, there is prima facie a suspicion that he means delay ; and he should present an excuse by affidavit for being so late, especially where he applies after the cause is noticed for trial. Andrews v. Cleveland, 3 Wend. 437. So it is presumed, as to an order for amending. (2) Fisher v. Wainwright, 1 M. & W. 486. CH. XI.] Which Party to prove the Issues. 809 When particulars of demand have been annexed to the record, pur- suant to the rule of court before mentioned, (1) neither the order for par- ticulars, nor the delivery of the particulars, need be proved. When they are not annexed, the particulars are proved by producing the judge's order, and proving the delivery of the particulars.(2) The delivery will be suf- ficiently proved by proving the signature of the party's attorney, or of his -agent, on the particular. If the particulars annexed vary from those delivered to the defendant, it will be prudent to be prepared with proof of the particulars delivered, that he may avail himself of such proof, in case the plaintiff has not proved any cause of action included in the particulars delivered.(3) This variance would be a ground of nonsuit. The particulars, as before stated, (4) form no part of the record, and are not to be considered as incorporated with the declaration, (5) nor can they be resorted to for the purpose of explaining or aiding the plead- ings.(6) The particulars of the defendant's set-off are merely explanatory of the plea of setoff, and if the plaintiff puts them in evidence for the purpose of rebutting a defence founded on the Statute of Limitations, he does not thereby admit the correctness of their contents.(7) CHAPTER XI. OF THE RULE FOE DETEEMINING WHETHER THE PLAINTIFF OB THE DE- FENDANT OUGHT TO PROVE THE ISSUES ON THE RECORD. The competency of witnesses, and the quality of evidence, having been fully treated of, two questions remain to be considered ; the one, as to the party on whom the burden of proving an issue is cast ; the other, as to the form or particularity required in the proof: in other words, which of the parties is to prove the issue, and to what extent must the issue be proved ? These wUl be the subjects of the two following chapters. There are several general rules of great use for ascertaining whether the (1) Supra, p. '799. (2) Maoartby v. Smith, 8 Bing. 145. (3) Morgan v. Harris, 2 0. & J. 461. See Ripper v. "Walton, 1 Dowl. (N. S.) 344. (4) Supra, p. 799. (5) Booth V. Howard, 5 Dowl. P. 0. 438. (6) iCilaer v. Bailey, 5 M. & "W. 382 ; Rogers t. Oustance, 1 Q. B. 11. (1) Barkitt v. Blanchard, 18 L. J. (N. S.) Bich. 34. As to the plaintiff's being entitled to a reply where the defendant has put in the particulars of the plaintiff's demand as evidence, see Eymer v. Cook, Moo. & M. 86. 810 Which Party, io prom the Issues. [CH. 3^1. plamtiff or the defemdant will have to prove tie issue on the record. One of the most useful of these is, the rule that the point in issue is to be ppoved by the party who asserts the affirmative, (1) that is, the affirmative in substance, not. in mere form.(2) Upon the party who has to give such (1) Ei incumiit prolaMo qui dicit, non qui negat. Dig. xxii, 3, 2. (2) See by Lord Abinger, C. B., In Soward v. Leggatt, 7 C. & P. 615. See also Mereer v. WhaU, 5 Q. B. 441 ; Cameron v. Farmer, 2 C. & K. 746. SOTE 220.— See BuU. N. P. 298 ; Tin. Abr. Ey. § a; Phelps v. HartweU, 1 Mass. Rep. 71 j Owings V. Patterson, 1 Marsh. Rep. (Ken.) 326. "The principle," says Mr. Evans (2 Bv. Poth. 143); "that he who alleges himself to be the creditor of another, is obliged to prove the fast of agreement upon which his claim is founded, when it is contested ; and that, on the other hand, when the obligation is proved, the debtor who alleges that he has discharged it, is obliged to prove the payment, is clearly one of those propo- sitions, in which every system of jurisprudence must concur in general, whatever particular rules may be adopted, as to the mode and form of the allegations by which the necessity of sucH proof is to be determined." See Bogert v. Morse, 1 Comst. 377 ; 4 Denio, 108. The question upon whom the arms prdbcmdi rests in the first instance, is usually determined by the state of the pleadings. Hence a plaintiff must, in general, prove his declaration. But if the defendant admits the facts alleged against him, and pleads and relies on another fact as a bar to the action, then the onus prdbandi is thrown upon him, and he must prove this fact (Ross v. Gould, 5 Greenl. Eep. 204) ; as where he pleads to a bond the want of consideration (Rudd v. Hanna, 3 Monroe, 628, 531; and see also M'Neil et al. v. Coleman, 8 Mart. Lou. Rep. (N. S.) 373); and if the nature of a plea in bar be such as not to deny the genuineness of a contract declared on, as for instance, the plea of general performance, or the plea of seizin at the time of maMng the covenant alleged, or the plea of payment or release, the contract may be read to the jury without any proof of execution. Ross v. Gould, mpra; Scott v. HuU, 8 Conn. Rep. 296 ; and note 196. The same principle is applicable where the contract is offered in evidence merely, and its genuineness is denied. When it is admitted upon prima fade evidence, the jury are the proper and constitutional judges, whether the contract be genuine or not. In the examination of the contested fact, the onus prdbamdi may, in the course of the trial, be thrown from one party to the other several times, according as the complexion of the proof may change. But when it is said that the onus prohandi is on the party who offers a paper as genuine, the plain, common sense, and legal meaning is, that it has reference to all the evidence in the cause, and not merely that which is necessary to authorize it to be read, in the first instance ; in other words, it means that the party afSrming the paper to be genuine, must furnish so much evidence as to leave a balance of proof in favor of the genuineness of the instrument, after making aU due allowance for tha pfoof adduced on the other side, to produce a contrary conviction. Ross v. Gould, supra. See Brooks et al. v. Barrett et al., 7 Pick. 94, 99, 100. And these general remarks, though applied to the case of a paper offered as evidence, will be found equally pertinent to any other instance, where, on the trial of a cause, some given proposition is sought to be established by the one party or the other, and there is a controversy with respect to it. " Whenever a fixed and undis- puted point is established by either party, it is from that point that the conflict must commence, whether in those cases where \he allegations are particular, or in those where the whole matter in dispute is open upon general pleading. Thus, if a plaintiff establishes a possession of any article taken from him by the defendant, and the defendant asserts a right of property, upon which the evidence given by the respective partias does not load to a deoisive preponderance ; the decision should be in favor of the plaintiff, his possession being an adequate title, until a superior property is proved, by a preponderance of evidence on the other side. 2 Ev. Poth. 143, 144. See ante, note 186. So where the plaintiff shows title in himself, and the defendant relies upon an adverse possession, either as a, bar to the action, or as part of his title, the burden of proving its length lies upon him, Darden v. AJlen, 1 Dev. 466 ; Hurst's Lessee v. M'Neil, 1 Wash. C. 0. B. 70, 80. " So if an heir at law claims as plaintiff iu ejqotimenll, wd his oonsw CH. XI.J Whieh Party to prove the Issues. 8H guinity is established or admitted, he ■will be entitled to the advantage of equivalent proofe, in affirmance or contradiction of an adverse will." 2 Ev. Poth. 144. And where the plaintiff sold to the defendants a cargo, estimated at 3T,000 lbs. ; the defendants agreeing to have the same weighed and render an account, and if the cargo turned out to be less, the plaintiff was to pay back the deficiency pro rata, and if greater, they were to pay for the surplus ; the defendants having so managed as to leave it uncertain what the quantity was ; held, that the general esti- mates made by the witnesses should be taken most strongly against them. Jones v. Murray, 3 Monroe, 83, 86: In trespass for breaking a close caUed lord's Leys ; the defendant pleaded right on Brockeridge Common, and that Lord's Leys was part of the common ; to which the plaintiff replied no right on Lord's Leys. At the trial, the plaintiff admitted that the defendant had a right on all Brockeridge Common, save the portion called Lord's Leys, and the defendant admitted he had no evidence of any exercise of the right on Lord's Leys. TIpon these pleadings and admissions, it was held, that the defendant must show, either that the original grant, or the pre- scriptive right set up in the plea, comprehended the whole common without exception ; " so that, if the original grant cannot be produced, and the evidence as to the prescriptive right over the part called Lord's Leys hangs in even scales, the balance must be declared in favor of the plaintiff." Maxwell v. Martin, 6 Bing. 622. " If the respondent in a sessions appeal, fixes an original settlement with the appellant, the obligation of proof is transferred, and the establishing a preponderance of evidence of a subsequent settlement becomes the business of the appellant," 2 Ev. Poth. 144. In assumpsit for the support of a pauper, deriving his settlement from that of his father or mother, brought in Massachusetts, against the town where the mother had her set- tlement ; it was held incumbent on the plaintiff to show that the father had not a settlement within the commonwealth; "for though this is a negative in appearance, yet it is proved by showing where he did belong," Wilmington v. Burlington,. 4 Pick. 174. See iposi, note 222- " And in general, whoever asserts a claim, or negatives a claim which,, without contradiction, vrould be sufficiently estabUshed, must support his position either by circuDistances inducing, a legal presumption in his favor, or by proofs in opposition to what the law presumes against him, or respecting which the law is passive in not estabUshing any presumption, on the one side or the other." 2 Evans' Poth. 144. Numerous cases, illustrative of these observations, have akeady been notiqed under the head of presumptive evidence ; and as the propriety of examining them, and others of a kindred char- acter occurring hereafter, will be readily suggested to the reader, we shall here introduce but few additional ones. In an action by the indorsee of a note against the maker, if the defendant wish to avail himself of payments not indorsed, the onus will lie on him to prove that the payments were made before the transfer, and that the plaintiff is not a, iona, fide holder, having obtained the note after it was discredited, or the hke. "Wilbur v. Turner, 5 Pick. 526 ; Webster v. Lee, 5 Mass. Rep. 334; Hemenway v. Stone, 1 Mass. Eep, 58. But if, in such case, it be shown that the note was fraudulent in its origin, or was fraudulently put in circulation, the burden will then devolve on the plaintiff, to show that he came fairly by the note, and without notice of the fraud. Munroe v. Cooper et al., 5 Pick. 412 ; Woodhull v. Holmes, 10 Johns. Rep. 231 ; Grant V. Vaughan, 3 Burr. Rep. 1516; Peacock v. Rhodes, Dough 633 ; Solomons, v. Bank of England, 13 East, 134. The indorsement of a note, by one of several partners in the partnership name, as sureties for a third person, not being binding upon the firm, unless consented to by them, the burden of proving such consent lies on the creditor or holder of the note. Uew York Fire Ins. Co. v. Ben- nett et al., 6 Conn. Rep. 514. It is a rule that where the interest of a person rests upon an affirmative, it is for him to prove the affirmative. Per Tenterden, 0. J., AUison v. Rayner, 1 Mann. & Ryl. 241, 244. Thus, an attorney cannot recover, from the assignee of an insolvent, the amount of a biU of costs incurred in proceedings requiring the consent of a meeting of creditors without proving such consent, or that the cUent was apprised that he was proceeding at his own risk. See, also, Breedlove v. Turner, 9 Mart. Lou. Rep. 353, 380. In an action for breach of contract in not furnishing castings after notice given ; the plaintiff showed that he gave notice, and requested the castings should be made on a basket belonging to the defendants, as he had a right to do by the contract ; held, that it was for the defendants to show that the basket was not a pattern. Peiry v. Bosford et a]., 5 Pick. 189. The admissions of a party against his title are strong evidence, and the onus lies upon him, if he would avoid' their effect, to show that ihej ^12 Which Party to prove the Issties. [CH. xi. proof is said to rest the burden of proof, or, as it is technically called, the ontis prohandi. One of the surest tests for ascertaining upon which side the affirmative really lies, is to consider which party would be successful if no evidence at all were given, (1) or what substantially amounts to the same thing, to examine whether, if the particular allegation to be proved were struck out of the plea or other pleading, there would or would not be a defence to the action, or an answer to the previous pleading.(2) Charge of breach of duty, involving negative. Thus, where one party charges another with a culpable omission or breach of duty, the person who makes the charge is bound to prove it. were founded in innocent mistake. Owen v. Bartholomew, 9 Pick. 521. The presumption is always in favor of the competency of a witness, and the party who would exclude him must show that he is incompetent. Per Bayley, J., in Marsden v. Stansfield, 1 Maun. & Ryl. 669, 672. In an action by the assignee of an insolvent debtor, in which the plaintiff declares for a cause of action existing prior to the assignment, the plaintiff is bound to prove the character in which he sues, though nothing but the general issue be pleaded. Best v. Strong, 2 Wend. Rep. 319_ Tide post, and also this case and others upon the question, how far the general issue admits the character in which the plaintiff sues, ante, note 196. "Where distinct proof of the forgery of the in- strument declared on has been introduced, and the plaintiff seeks to recover, upon the ground of a subsequent adoption' of the instrument, the burden of proving this fact lies on him. Phillips v. Ford, 9 Pickering, 39. In the case of a capture of a vessel at sea, upon the question of prize or no prize, the onus lies, in the first instance, upon the captors. Miller et al. v. The Resolution, 2 Dall. 22. And where the ship and cargo were found in the possession of the enemy's hands, by capture from the subjects of a neutral nation, it was held that the possession by the enemy was accounted for, and that the presumption thence arising of enemy property was rebutted. Id. Where goods are seized, and claimed as forfeited, as part of the cargo, the onus is on the govern- ment to prove that such goods were part of the cargo on board at tlie time of the offence. United States v. An Open Boat, 5 Mason's Rep. 232. Where the defendant, an attorney, was sued for negligence in aho-ivuig judgment to go by default, in an action which the plaintiff had retained him to defend ; the negligence being proved, held, that the onus was upon the attorney to defend himself, by showing, if he could, that the plaintiff had no defence in that action ; and not for the plaintiff to begin, by showing that he had a good defence, and so had been damnified. Godefroy v. Jay, 1 Bing. 413 ; S. 0., 5 Moore & Payne, 284. In an action by a passenger in a stage coach against the proprietors, for an injury, occasioned by the insufficiency of the coach, the plaintiff proved that while the coach was driven at a moderate rate, upon a good road, one of the wheels came off, kc. ; held, that negligence is implied from these circumstances, and the burden of proof is upon the defendants, to rebut this legal inference. Ware v. Gay et al., 11 Pick. 106. See Story on Bailments, 378, 379. Though a deed may be read in evidence to the jury, after preliminary proof by the subscribing witnesses, yet, if the genuineness of the instru- ment is controverted, the onus is still on the party introducing it, to satisfy the jury beyond a reasonable doubt, that it is genuine. Ross v. Gould, 5 Greenl. 204. Where the action was on a single bill, by which the money therein mentioned was to become due, if the obligor could not make it appear "that no other person committed the trespass ;'' held, that as consideration was presumed, the onus of proving that some other person did commit the trespass, lay on the defend- ant, if he wished to avail himself of that fact. Hays v. Lusk, 2 Rawle, 24. (1) By Alderson, B., in Amos v. Hughes, 1 Mo. & R. 464. See, also, Ridgway v. Ewbank, 2 Id. 218 ; Geaoh v. Ingall, 14 M. & W. 97 ; Belcher v. M'Intosh, 8 0. & P. 721 ; Doe d. Worces- ter (Trustees) v. Rowland, 9 0. & P. 735 ; Osborn v. Thompson, 2 Mo. & R. 256. (2) By Alderson, B., in Mills v. Barber, 1 M. & W. 427. CH. XI. j Which Party to prove the Issues. 813 though it may involve a negative ; for it is one of the first principles of justice, not to presume that a person has acted illegally till the contrary is proved. (1) In a suit for tithes in the Spiritual Court, where the defendant (1) Note 221. — United States v. Hayward, 2 Gallia. 485, 498. In all cases where a party stands charged with an offence, his innocence is presumed, and the onus is upon the prosecutor unless a, different rule has been expressly provided by statute. United States v. Gooding, 12 Wheat. 460, 471 ; Commonwealth v. Stow, 1 Mass. Eep. 54, S. P. In the case last cited, the defendant was indicted for having given a false and fraudulent certificate of membership, under the Massachusetts law of June 1 2th, 1800 ; and, on the trial, it became a question, whether it was for the defendant to prove the certificate true ; the court thought not, and so held, though it was contended that this was in effect, requiring from the prosecutor proof of a negative. Upon an indictment under the statute law of the same state, relating to hawkers and pedlars, which has a proviso, that nothing therein contained " shall prohibit any person carrying and selling, &c., goods, &c., of the produce or manufacture of the United States," &c. ; it was held incumbent on the prosecutor to prove that the articles were of foreign manufacture. Commonwealth v. Samuel, 2 Pick. 103. "Where the charge, however, does not consist in a criminal omission or breach of duty, the rale is otherwise. See post, note 224. Yet, in a case in which the plaintiff claimed a slave as forfeited by the defendant, upon the ground that the defendant, a widow, to whom the slave had been assigned as dower, removed such slave from Virginia, without the consent of the reversioner, contrary to the law of that state ; it was held incumbent on the plaintiff to show that the reversioner did not consent. Hicks et ux. v. Martin, 9 Mart. Lou. Rep. 47. Upon a question whether the vendor of property, at the time of sale, did disclose certain defects which it was proved he knew, the onus is upon the party charging the fraud, to prove that the vendor did not disclose ; for fraud is never to be presumed, but must always be proved. Fleming v. Slocum, 18 John. Eep. 403. See, also, ante, note 177', and numerous cases there cited, illustrating this and its kindred principles of presumption. And where one gives another discre- tionary power to adjust a demand, and pay dues and costs, the adjustment is presumed correct and, if the agent prosecutes for the money paid, it lies with the defendant to show an abuse of the discretion, or fraud in the adjustment. Sherman v. Crosby et al., 11 Johns. Rep. 70. And, in general, wherever a party alleges bad faith, he is held to the strictest proof, for the presump- tion is against him ; he must not merely make his allegation probable, but must bring the weight of evidence distinctly on his side. Port et ux. v. Metayer et al., 10 Mart. Lou. Rep. 436; Turn- buU V. Martin, 10 Id. 419. ^ Though the law presumes the continuance of life, as will be seep, post, of the text, yet, in a case where this presumption comes in conflict with, and necessarily involves a presumption of crime, the former, which is the weaker, yields to the latter ; and the party afBrming that an in- dividual is not dead, will be bound to prove it. Thus, on a question of settlement, where a woman, twelve months after her first husband was last heard of, married a second husband, and had children by him, it was held, on appeal to the sessions, that the onus of proving that the first husband was not dead at the time of the second marriage, lay on the party who objected to such second marriage ; for the consequence of presuming life would be, that the woman had committed bigamy. Rex v. The Inhabitants of Twyning, 2 Barn. & Aid. 386. But in Doe ex dem. James V. Price (1 Mann. & Ryl. 683), where, in ejectment, the plaintiff relied on the invalidity of a second marriage, by reason of a former marriage by license, one of the parties being a minor, and the defendant had notice, previous to the trial, of the question intended to be raised (s. c. whether the former marriage was with the consent of the minor's parent), but on the trial gave little or no evidence negativing the fact of the parent's consent ; and the entry in the register stated nothing in relation to it, but evidence was given, on the part of the plaintiff, showing that the parent knew of the former marriage ; the court, after verdict for the plaintiff, refused to grant a new trial, al- though it was contended, upon the authority of Rex v. The Inhabitants oi Twyning {supra), and other cases cited in the text, that the onus of proving express consent lay on the plaintiff. Bayley, J., delivermg the opinion of the court, placed much stress upon the fact of notice having been given to the defendant of the ground intended to be taken by the plaintiff: — " And it was 814 Which Party to prove the Issues. [CH. XI. his bounden duty to have procured every species of evidence that was calculated to negative the fact of the first marriage having been solemnized with the consent of parties." The decision does not conflict, in any respect, with the case of Rex v. The Inhabitants of Twyning, but goes upon the ground that it is not the duty of the court to grant a new trial, for the purpose of letting in evidence which might have been produced at the former trial. Where a statute directs that the examination of a prisoner before a magistrate shall be reduced to writing (e. g. the Statutes of Phillip and Mary), the court will presume that the magistrate has done his duty ; consequently no parol evidence can be .given of a prisoner's declaration before a magistrate, without previous proof that it was not taken down in writing. Ante, note 151 , and the cases there cited ; in addition to which, see Eex v. Hall, Leach, 240 ; Rex v. Peamshire, Id. 446 ; 2 Hawk. P. C, ch. 46, §§ 41, 42 ; 2 Starkie's Ev. 51. And so, doubtless, in New York, as to examinatiions under 2 Rev. Stat. 708, §§ 14, 15, 16. The rule is general, aad almost without on exception, 'that officers acting under oath, or in whom the government reposes a trust, are presumed to have done their duty, till the contrary be proved. Thus, where it was the duty of an officer not to issue a grant until a certain warrant had been lodged with him, the court pre- sumed that he had the warrant, from the fact of his issuing the grant. Hickman v. Bofi&uan Hardin's Rep. 348. This principle is equally applicable to a proceeding against the officer, and to a proceeding against the right of an individual, derived through the act of the officer. Id_ That an officer, whose duty it is to search for personal property before he sells real, has so searched, will be presumed until the contrary is established. Beeler's Heirs v. Bullitt'sfteirs, 3 Jiarsh. Ken. Rep. 280. And where an execution against C. was delivered to a deputy sheriff in December, returnable the third Tuesday of February following, and in March C. sold a pair of horses, of which he was possessed when the execution was delivered, and until its return day ; the deputy sheriff afterwards took the horses, and sold them at sheriff's sale, under the execution ; held, in an action of trespass against the officer by the purchaser of 0., that, in the absence of any positive proo^ it was fairly to be presumed that a levy had been lawfully made by the officer before the return day. Hartwell v. Root, 1 9 Johns. Hep. 345. So, where land is sold under 3,fi.fa., and a deed executed by the sheriff the court, in favor of the purchaser or those claiming under him, jvih presume a levy. Jackson ex dem. Sternberg et al. v. Shaffer, 11 Johns- Bep. 513. See Bliss v. Ball, 9 John. Rep. 132. And so the law presumes the sheriff to have given due notice of sale, until the contrary be shown. Topper v. Taylor et al., 6 Serg. & Rawlej iVs. But when such evidence is produced as renders it probable that notice was not given, the onus changes to the person claiming under the sheriff's deed. Id An officer of the customs, duly commissioned and acting in the duties of his office, is presumed to hafve taken the regular .©aths. United States v. Baoheldor, ,2 Gall. Rep. 15. And every judgment of a court of compe- tent jurisdiction is presumed correct ; and it lies with the party seeking to impeach it to plead and prove the facts going to invalidate it. Lee v. Cooke, 1 Wash. 307. Exemplifications of the judicial proceedings of a foreign country are presumed correct ; if incorrect, the onus probandi lies upon the party opposing their introduction as evidence. Woodbridge v. Austin, 2 Tyl Rep, 364, 366. In Massachusetts, where a field driver, chosen at an annual town meeting, was sued ■in trespass for taking cattle found going at large without a keeper, and impounding the same, it •was held that such field driver was not bound to produce a record of a vote of the town, pre- iScribing the time and manner of notifying town meetings, but that the notification would be pre- sumed legal until the plaintiff should prove the contrary ; or that the notice was so unreasonable ■as to raise a presumption of fraud on the part of those by whom the meeting was called. Gilmore V. Holt et al,, 4 Pick. Rep. 258. In New York, whore an objection was taken to the competency of a witness on the ground of his having been convicted of felony, and it was shown that the Teoord of conviction was destroyed, parol evidence was held inadmissible, inasmuch as the transcript required by 1 R. L. 462 (K. & R.) to be sent to the Court of Excliequer, was the next best evidence ; and it must be presumed that the district attorney had done his duty, and that the transcript had been duly filed by him. HUts v. Colvin, 14 John. Rap. 182. See, also, ante, note 177, where a considerable number of cases are cited illustrative of the same principle. CH. XI.] Allegation involving u Negative. 815 pleaded tliat the plaintiff had not read the -thirty -nine articles, the court called on the defendant to prove the fact, though a negative : upon which he moved the Court of King's Bench for a prohibition ; but it was re- fused, for the reason already stated.(l) In an action by the owner of a ship against the defendants for putting on board a quantity of combustible and dangerous articles, " without giving due notice thereof," the court held, that it lay upon tire plaintiff to prove this negative averment.(2) Breach of contract. And the same principle will apply where one party charges the other with a breach of cotnract. Thus, in an action upon a contract to perform certain work in a workmanlike manner, the breach alleged being that the defendant did not perform the work in a workmanlike manner, but, on the contrary, performed it in a bad and unworkmanlike manner; where the defendant pleaded that he did perform the work in a workmanlike manger : here the affirmative allegation is made by the defendant, yet the burden of proof lies on the plaintiff; (8) for if no evidence were given on either side, the defendant would be entitled to the verdict; as the plaintiE^ by the form of his breach, admits that the defendant had performed the work contracted to be done, though, as was alleged, it had been performed in an unworkmanlike manner ; and as it would not be assumed that the work was badly executed, it is ineumbent on the plaintiff to prove that allegation. If, on the other hand, the breach had been that the defendant had not performed the work at all, and the defendant had pleaded that he had performed the work, the burden of proof would have been shifted upon the defendant; for if no evidence had been given of the performance of the work, the plaintiff would have been entitled to the verdict.(4) Breach of covenant stated negatively. And in an action of covenant against a lessee, Ivhere the breach is, in the language of the covenant, that the defendant did not leave the prem- ises well repaired at the end of the term, the proof of the breach lies upon the plaintiff :(6) this breach, though in terms it involves a negative, (1) Monke v. Butler, 1 Roll. Rep. 83; cited by Lord Ellenborough, C. J., 3 East, 199,; Powell V. Millbnrn, 2 W. BL S51 ; S. C, 3 Wils. 355. See also Lord Halifex's Case, B. N. P. 298 ; R. V. Combs, Comb. 57 ; Gilb. Ev. 13.2 ; R. v. Hawkins, 10 Bast, 211, as to not taking tbe sacrament. (2) WiUiama v. E. I. Company, 3 East, 193, 199. (3) Amos V. Hughes, 1 Mo. & R. 464. In this case, as in moat instances at Nisi Priug, the Struggle was as to which party was entitled to begin, in order to have the advantage of a reply, in case the other party should call witnesses ; the right to begin, however, is in point of fact an obligation, the real question always being upon which .party , the buixien of .proof is first thro-wm. (4) See 1 Mo. & B. 465, note by >the repoiitera. .(6) SowMd V. Leggatt, 1 0. &. P. '613. Note 222. — There are many negative proposUions which admit of easy aad certain proof; &a instance, that a man was not at a given place ; this may be established by shewing that .he was 816 Which Party to prove the Issues. fCH. XI. admits of as easy proof as if it had been expressed in the affirmative. So, where there was a covenant in a lease that the tenant should insure in some office in or near London, and the landlord insisted upon a for- feiture of the lease by reason of a breach of this covenant, it was held, that he must prove the omission to insure, as the law would not presume that the tenant had not satisfied the terms of the covenant.(l) If the landlord had wished to be relieved from this negative proof, he might have inserted a clause to that effect in the lease.(2) In an action for a loss occasioned by barratry in the master of a ship, where it was objected by the defendant, that the plaintiff ought to prove that the master was not also the owner or freighter, and that he did not act under the direction of the person who was so (in which case barratry could not be committed), the court held, that if the master was owner or freighter, or acted under the direction of the owner, the burden of proving that fact lay on the defendant.(3) " It was not incumbent on the plain- at another place, so distant as to render it impossible to suppose he was at both ; and in this and sitnUar oases, the diffionlty of showing a negative wiU have little or no weight in determining upon whom the onus lies. See Dranguet et al v. Prudhomme. 3 MUler's Lou. Eep. 184. In "Wflming- ton V. BurUngton (4 Pick. 114), the court say, "It was incumbent on the plaintififs to show, first, that the father had not a settlement within the commonwealth ; for though this is a negative in appearance, yet it is proved by showing where he resided." In an action of covenant of war- ranty of lands, if the plaintiff have voluntarily yielded to a dispossession, he must show want of title in the warrantor. But in case of eviction by force of a judgment, with notice of the suit to the warrantor, the judgment will be plenary evidence, unless obtained by fraud. Hamilton v. Cutts, 4 Mass. Eep. 349. Where one promised to indemnify another for doing a particular act ; and the latter, on being sued for the act, gave a cognovit ; on a suit by him against the former, upon the promise, it was held that the onus was upon the plaintiff, to show that the cognovit so given was not for too much. Stone v. Hooker, 9 Cowen's Rep. 154. In this case Hamilton v. Cutts [supra) is stated fuUy by the court and approved. In Lee v. Cooke (1 "Wash. Rep. 306), in an action of covenant for breach of waiTanty respecting title to a slave, it was held incumbent on the defendant to plead and prove fraud or coUusion in the judgment of eviction, if he would avoid its effect, even where the plaintiff did not attempt to prove notice of the suit to the wan-antors ; sed quere. See Blasdale v. Babcock, 1 John. Rep. 517 ; Barney v. Dewey, 13 Id. 224. In an action on a forthcoming bond in Virginia, it was held, that it was not incumbent on the plaintiff to prove non-performance, but that the onus lay with the defendant to show a delivery of the goods. Nichols v. Fletcher, 1 Wash. Rep. 330. (1) Doe d. Bridger v. Whitehead, 8 A. & E. 571. As to the proof of the non-communication of material facts on the effecting of an insurance, see Elkin v. Janson, 13 M. & W. 655. (2) For further instances, see Osborn v. Thompson, 9 C. & P. 337 ; S. C, 2 Mo. & R. 254; Cox V. "Walker, cit. 9 C. & P. 339 ; Shiloock v. Passman, 7 Id. 291 ; Smith v. Davies, Id. 307 ; Ridg- way V. Bwbank, 2 Mo. & R. 217 ; Doe d. Caldecott v. Johnson, 7 M. & G-. 1047 ; Lambert v. Hall, 9 C. & P. 506. (3) Ross V. Hunter, 4 T. R. 33, 38. Note 223. — The law not merely requires proof from the party holding the affirmative, because it is impossible to prove the negative ; but because the negative does not admit of the direct and simple proof, of which the affirmative is capable. Dranguet et al. v. Prudhomme, 3 Miller's Lou. Rep. 83, 86. See post, note 224, and cases there cited. Where, in Louisiana, a married woman sues to rescind her contract, on the ground that she was not legally authorized by the parish judge, or her husband, to malce it, the onus is thrown on the party claiming the benefit of the contract. Dranguet et al. v. Prudhomme, 3 MiUer's Lou. Rep. 74, 83. And if a person enter into ,CH. xi.J Which Party to begiri. 817 a contract to pay a sum of money, with a condition that the contract is to be void on the hap. pening of a particular event ; in an action for the money, the onus of proving that such event has happened, is on the defendant, if he would avoid the payment. Gray v. Gardner et al., l"?, Mags- Eep. 188. And see Perry v. Botsford; Godefroy v. Jay; "Wilbur v. Turner; "Webster v. I4ee; Hemenway v. Stone ; Hays v. Lusk, cited in the next preceding note. "Where the plaintiff in ejectment shows the original grantee to be within the exception to tlje Statute of Limitations, proof that others deriving title from such grantee, are not within the ex- ception, is unnecessary on his side. If relied upon to defeat a recovery, the proof must gome from the defendant. Doe ex dem. Thompson v. Gibson, 2 Ham. Rep. 339. Bees V. Smith (2 Startle's N. P. 0. 30), cited in the seventh edition of the text, was followed by Lacon v. Higgins (3 Stark. Rep. 118), to the same practice, where the defendant had pleaded coverture, without the general issue, in assumpsit for goods sold; but in a previous action for a similar cause, on a plea of nou-joiuder of one Cohen, and issue, the plaintiff being allowed, according to the then practice, to begin, and it being insisted that he should give all his testi- mony in respect to the non-joinder, thus replying by anticipation as in the other cases ; Abbott, ' C. J., said: "The plaintiff does not know who Cohen is, except from the plea. He cannot meet the ease till he is acquainted with it." The answer, we apprehend, would apply geueraliy where the plaintiff begins with the burden of showing his wrong, his damages, ,or either ; and such, we venture to say, has been generally deemed a sufficient answer in this country, beside the intrinsic difficulty of meeting an affirmative plea by negative testimony, before any evidence has been presented in support of that plea. It is farther evident, that the course laid down i\ the text would, in most instances, leave a great part of the plaintiff's evidence, thus given in advance, unintelligible. Beside, it seems to us that Rees v. Smith stands directjy overruled, or much qualified, by the subsequent case of Browne v. Murray (Ryl. & Mood. N. P. Cas. 254). That was case for a libel, with the general issue, and a justification. Held, that if the plaintiff (who was allowed to begin) would give evidence, in the first instance, in reply to the justifica- tion, he might do so ; and then must give the whole of such evidence ; but the plaintiff mjight wait for the evidence under the justification ; and then produce such evidence in reply. The slight .innovations (they so appear to us) which have been made in circuit practice, upon the ancient right of beginning the cause, have, perhaps, better subserved the great purposes of a safe and speedy administration of justice. The parties have been, and still are, generally gov- erned by the onits probandi as indicated by the record ; the plaintiff beguiuing, and having the right of reply, in all eases where the defendant's pleaduigs, or any part of them, deny the whole or any part of the plaintiff's pleadings, so as to leave any single affirmative allegation on his sifle to be established by proof. Per "Williams, J., in Comstock v. Hadlyme, 8 Cqnn. Rep. 261, and the eases there cited ; per Parker, C. J., in Brooks v. Barrett, 1 Pick. 99 ; Browne v. Murray, 1 Ey. & Mood. N. P. Cas. 254. On the other hand, where the form of the defendant's pleadings ^s such as to admit all the plaintiff's averments, or leave htm nothing to prove, the defendant is , to begin and close the case. , An instance is, where to a declaration in covenant, the defendant interposed the single plea of performance (Scott v. Hull, 8 Conn. Rep. 296, BOS); or a plea, of.' payment to a declaration upon a note. Id. 303, per Hosmer, J. These propositions are in ordinary oases, sufficiently simple, and easily applied in .practio.e_ They are, however, not always so ; or, if so, plausible grounds have been started for sometimes, disregarding them. Thus, in avowry for rent arrear, the defendant stated that ,he bad demised rooms to C. at £35 a year, for which he distrained ; with four other avowries, varying in the statement of tenancies. The plaintiffs pleaded three pleas in bar to each avowry ; non teimit, rims in a/rrere, and , thirdly, that C. had let other rooms to the defendant at £42 a year ; and that, it had been agreed between them that each rent should be set off against the other, which, would in consequence, leave the balance against the defendant. The defendant replied denying, this agreement. At the circuit, Scarlett, A. G., for tl^e defendant, insisted that the plea was merely - saying riens in arrere ; and beside, in an agreement to set off rent against rent, both, parties, are actors. iLord Tenterden, C. J., said he could not distmguish between replevin, and any .other action. Scarlett said that, in replevin, the plaintiff might always staite something, imaginary jn a plea, which the defendant must deny; and so the pla,intiff get the- right to. begin. Ijord Ten- terden, C. J. : " If these plaintiffs prove the agreement .as stated in the third plea, and, that tbe rent there mentioned is in arrear, there is an end of the action. I am^aftaid.to make, distinctions Vol. I. 52 818 Which Party to prove (he Issues. [CH.-XI. in actions ; and if there is an affirmative on the plaintiff, I think he ought to begin." And this was the course taken. Curtis v. Wheeler, 3 Carr. k Payne, 340 ; S. C, 1 Mood. & Malk. 493. In a subsequent case, there were five cognizances for rent in arrear, to which the plaintiff pleaded seventeen negative pleas. The eighteenth plea was to the five cognizances that the landlord and tenant had made an agreement, then abandoned it and made another, which was the demise contained in the cognizances ; and this was also abandoned. The nineteenth was similar to the eighteenth plea, except in averring fraud in the second agreement. Replications denying the abandonment and the fraud. BoUand, B., said these pleas amounted very nearly to non iermii; yet as, in point of form, the afBrmative was on the plaintiff, he directed him to begin. Williams V. Thomas, 4 Oarr. & Payne, 234. So on a plea of non-assumpsit to a declaration upon a promis- sory note, though the defence turn on payment, the plaintiff shall begin. Per Cwr., in Brooks V. Barrett, 1 Pick. 100. Tet this right may be taken from the plaintiff, where the defendant will venture to give him a whole prima facie case, even on the general issue. This was conceded in ejectment by an heir. The defendant offered to admit that he was heir, and rely on a conveyance from the ancestor, which carried the title out of him. It was agreed, that if the defendant would admit the seizin of the ancestor as weU as the heirship, this would entitle him to begin; but he declining to do so, the plaintiff began. Doe ex dem. Tucker v. Tucker, 1 Mood. & Malk. 536. In trespass quare clauswm fregit, the defendants pleaded, 1. Not guilty; 2. A right of common, and 3. A right of way. The replications took issue on all these pleas, and new assigned as to the way. The defendants rejoined, taking issue on the replications, but withdrawing their plea of not guilty as to the new assignment. On a record so framed, the learned reporters remark, that the defendants would have a right to begin ; and they cite a case (Rees v. Rogers) to that effect, ■ Cor. Lord Tenterden, C. J., on a similar issue. Cross v. Johnson, 4 Mann. & Ryl. 290, in connec- tion with note a, Id. 294, 295. On a plea of coverture to assumpsit for goods sold, the defendant consenting to admit the amount of the plaintifi''s bill, was allowed to begin. Lacon v. Higgms, 3 Stark. Rep. 176. But in trover, directed by the vice-chancellor, to try a title, with an order that the defendant should admit the finding and conversion, though the defendant offered to admit a Mi. prima facie case in the plaintiff, he was not allowed to begin; for had the vice-chancellor intended such a course, he would have directed him to declare and proceed as plaintiff. TurberviU v. Patrick, 4 Carr. & Payne, 551. As to the right of the defendant, he may begin upon a plea in justification of a libel, there being no general issue, although the plaintiff holds one affirmative there, viz ; in making out his damages. Cooper v. Wakley, 3 Carr. k Payne, 410 ; S. C , 1 Mood. & Malk. 248. So on a plea of a right of way to an action of trespass quare clausum fregit, though the plea began with deny- ing the force and arms, &c. Hodges v. Holder, 3 Campb. 366 ; Jackson v. Hesketh, 2 Stark. Rep. 518, S. P. So under a justification of an assault to suppress a mutiny. Bedell v. Russell, Ry. & Mood. 293. So of a justification for taking goods under proceedings upon a commission of bank- ruptcy. Cotton V. James, 3 Carr. & Payne, 505 ; S. C, 1 Mood. & MaUc. 273. So on a justifica- tion in trespass, though the declaration allege special damage. Fish v. Travers, 3 Carr. & Payne, 578; per Lord Tenterden, 0. J., in Fowler v. Coster, 1 Mood. & Malk. 242, 243. So on a plea ■of non-joinder of a defendant, in an action by indorsee against acceptor. Fowler v. Coster, 1 M. & M. 241. And see a case before Bayley, J., York summer assizes, 1821, 4 Stark. Ev. 2, note i, S. P. Previous to the above more recent course of decision, the practice had fluctuated, some deci- sions allowing the plaintiff to hold the affirmative and begin the case, whenever he was put to prove unliquidated damages, although the defendant had met tlie case with a mere affirmative . plea ; as in assumpsit, against a money scrivener for negligence, who had pleaded the non-joinder of another, upon which issue was joined. Roby v. Howard, Cor. Abbott, C. J., 2 Stark. Rep. 555. Again, on a similar plea in assumpsit for goods sold, the plaintiff was allowed to show the amount of goods, and reserve his proof, aa to the non-joinder, till the defendant went through with his case. Slansfield v. Levy, 3 Stark. Rep. 8. But on a plea of coverture, to a like action, Lord Abbott, C. J., told him that if he went into his case, as he had a right to do, in order to prove his damages, he must also introduce all his proot by anticipation to oppose the plea of coverture. Lacon v. Higgins, 3 Stark. 178. Other earlier cases held, on the contrary, that the • defendant should begin, as we have seen in Hodges v. Holder, and Jackson v. Hesketh ; though CH. XI.] Which Party to begin. 819 a still earlier case is sometimes quoted as sustaining Eoby v. Howard. See Toung v. Bairner, 1 Esp. Bep. 103 ; no question as to the praetine was raised. The cases having thus conflicted on the question, when Fowler v. Coster (supra) came to be tried, Lord Teuterden, C. J., took occasion to remarls, " It is certainly of importance that there should be a distinct general rule ; but that rule need not be the same for every case, if it be such that its application is clear. No rule, probably, can be free from occasional inconvenience ; but I think this is sufficiently general, and on the whole the most convenient ; that wherever it appears on the record, or by the statement of the counsel engaged, that there is really no dispute about the sum to be recovered, but the damages are either nominal or else mere matter of com- putation, then, if the affirmative of the issue is on the defendant, he is entitled to begin. Here it is not pretended that there is any cause of action, except that on the bills of exchange ; I think, therefore, that the defendant is entitled to begin." When, however, his Lordship came to the case of Cotton v. James, he admitted that he found the practice general that the defendant should begin whenever he held the affirmative on the record ; though he evidently was dissatis- fied with the practice as the least convenient, and therefore wanting the correct principle to support it. The learned reporters say, " This case seems to complete the series of those by which the doctrine that the plaintiff is entitled to begin where he has to prove damages sustained, have been, for the present, overruled." They, however, consider it doubtful whether the present doc- trine will long continue, and enter into an elaborate vindication of the old practice as more con- venient, more satisfactory to the bar, as avoiding aU chance of a defendant's manoeuvring for the general reply, on the question of damages, by putting a colorably affirmative defence on the record, and requu-ing each party to close hia case at once. 1 Mood. & Malk. 2^8 to 281. The American (or, speaking according to our more limited knowledge, the New York) lawyer would doubtless prefer the more modern English practice, from the force of habit. In proceedings where no common-law record comes into the case, and where, of course, the owns prohandi is not technically presented, the courts still conform analogically, and, as it were upon a mental record, to the principles which govern at common law. Thus, on an appeal from a court of probate, which decides for a will, the appellee shall open and close the case, because such would be the course on a declaration at law founded upon rights conferred by the will ■ and, beside, the onus of proof as to the execution of the will lies upon him who affirms that a will was made. Comstock v. Hadlyme, 8 Conn. Rep. 254; Phelps v. Hartwell, 1 Mass. Bep. 11 ■ Buokminster v. Perry, 4 Mass. Rep. 593. Whereas, for the same reason, if the appeal be from a decree avoiding the will, the appellant shall begin. Brooks v. Barrett, 7 Pick. 94. But in all these cases the judge exercises the right to make an exception, where anything of a peculiar character occurring on the trial, demands such a course as the most convenient. Thusi in the celebrated case of Goodtitle ex dem. Revett v. Braham (4 T. R. 497, tried at bar), the court said, if the heir (the lessor of the plaintiff) proved his pedigree and stopped, when the onus changed to the defendant, who set up a new case, he had the right to a general reply. The plaintiff's pedigree, on being stated, was admitted; and the defendant's case turned on a will which the jury finally found to be a forgery. So, in another case, the defendants, in an action for money lent, pleaded in abatement the non-joinder of one hundred and sixty-three persons. The plaintiff proposed to show that the money was lent on the express individual credit of the defendants, he expressly refusing to lend on the credit of the others, who, with the defendants, were a club. Lord Tenterden, C. J., allowed the plamtiff, on this statement, to begin ; which he did, and had a verdict upon the case thus specially made out, the defendant not being able to overcome it. He offered one of the club to contradict it; but he being interested, and not re- leased, the attempt proved unavailing. Hare v. Munn, 1 Mood. & Malk. 241, 242, note u. Speaking of this case afleiwards, when the same question was started before him in Fowler v. Coster (m< supra), Lord Tenterden said, '-it was a peculiar case; and I thought the evidence which .the counsel for the plaintiff opened was of such a nature, that it would be much more convenient to take it in the first instance. The counsel for the defendant did not object ; and it was accordingly done; but I did not then lay down any general rule." It is obvious, on the whole, that the right to begm and reply is a matter of diteretion resting with the judge at the circuit. " It is a matter of practice, founded indeed upon the principle, that he who takes the affirmative, assumes the burden of proof; yet where there are several issues, or the burden of proof changes, as it frequently does in the course of the trial, as much 820 Which Party to prove the Issues. [CH, XI. tiff," said BuUer, J., " to prove that the captain was not the owner, for that would be calling on him to prove a negative ; and if the captain Avere not the owner, it is immaterial who was : proof of that fact, which operates in discharge of the other party, lies upon him." Value given for bill of exchange. In an action by the indorsee against the acceptor of a bill of exchange, where the defendant pleaded, that he accepted the bill for the accommoda- tion of the drawer and without consideration, and that the drawer in- dorsed to the plaintiff without consideration ; and the plaintiff replied that the drawer indorsed to him for good consideration ; it was held, that it was not incumbent upon the plaintiff to begin and to prove that he gave value for the bill ;(1) as in the case of an accommodation bill, the.pre- sumption of law is that the holder has given value for it ; but the rule is otherwise, where the title of the holder is impeached upon the ground •that the bill had been improperly obtained from the acceptor, — as, if it had been obtained by fraud or duress, or had been stolen or lost.(2) Where offence, involving negative, created by statute. Generally speaking, where an offence is created by statute, and nega- tives are used in the enacting part descriptive of offence, those negatives discretion must be allowed to the judge, as in case of a motion for a continuance, or for a new trial ; and a mistalje here is no more a ground for a new trial than in those cases." Per Wil" liams, J., in Comstook v. Hadlyme, 8 Conn. Rep. 261. And with him agrees Hosmer, C. J., in the subsequent case case of Scott v. HuU, 8 Conn. Hep. 296, 303. The contrary is said in Brooks v. Barrett (sigjro), to have been adjudged in Massachusetts. '7 Pick. 98. We liave seen, however, that the matter is otherwise treated in England, and held expressly otherwise in Connecticut ; and there can be no doubt that an occasional departure from the general rule is often quite use- ful. By anticipating the proof of one party, in Hare v. Munn (svpra), a long and idle course of testimony was probably prevented by a moment's examination on the part of the plaintiff; a course of testimony, too, which would otherwise have been prima fade appUcable ; and, in the usual order, therefore, entitled to a hearing. The editor has often witnessed this inconvenience in actions of ejectment. The defendant, perhaps, spends half a day in examining witnesses to make out an adverse possession, or a practical location, which is then overturned in a moment by showing that he is a squatter, or has taken as tenant, or he, or some one under whom he claims, has recognized the plaintiff's title, or done some act decisive of the location. The opening upon, and trying the short question in the first instance before the jury, would save delay and expense to both parties ; for if the preliminary proof so heard would make the testimony on the other side obviously inapplicable or utterly unavailable, it then would cease to be competent. Hun- dreds of such cases might be adduced, to each of which, hours, if not days, have been unprofit- ably devoted. It will readily occur to the professional reader, that not only ejectment, but any other case may come within the same suggestion. A party goes on and proves a long account, to which there is known to be a decisive answet by a release, a payment, or an accounting and balance struck ; a trial and determination, upon the short point of defence against the account, might save Several days' examination before the referees. (1) MUls V. Barber, 1 M. & W. 425. See also Whittaker v. Edmunds, 1 Mo. & E. 366. (2) See 1 M. & W. 432. See also Lewis v. Parker, 4 A. & B. 838 ; Jacob v. Hungate, 1 Mo. &, R. 445 ; Brown v. Philpot, 2 Id. 285 ; Smith v. Martin, Car. & M. 58; Bingham v. Stanley, 2 Q B. ll"? I Bailey v, Bidwell, 13 M. & W. 13 ; Masters v. Barretts, 2 0. & K. 715. "(James v. Chalmers, 2 Selden 11. 209, and cases cited in Edwards on Bills & Notes, 686-689.) CH. Xi.J When Negative to he proved, 821 must be alleged in an indictment or information for the oflfence, and must be proved, for the negative there forms part of the, offence; but it is dif- ferent where the negative comes by way of proviso in the statute, in which case it must be insisted on by way of defence by the accused.(l) Thus, upon an indictment under the statute 42 Geo. Ill, c. 107, § 1,(2) which made it felony to course deer on an inclosed ground, " without the consent of th^ owner of the deer ;" or on the statute 6 Geo. Ill, c. 36,(3) which made it felony to cut down trees " without the consent of the owner ;" it was held, that it ought to appear, from the evidence produced on the part of the prosecution, that the owner had not given his conaent.(4) But this rule, as to the necessity of proving a negative, must be taken sub- ject to another, namely, that the burden of proof lies on the person who has to support his case by proof of a fact which lies, more peculiarly within his own knowledge, and of which he is supposed to be cognizant.(5) Thus, in an action for penalties under the old Game Laws, though the plaintifl must aver, in order to bring the defendant within the act, that he was not duly qualified, yet it is not necessary to disprove his qualification, but it will be for the defendant, if he can, to prove himself qualified.(6) And the same rule of evidence applies to proceedings on informations before magistrates : a conviction, therefore, which specifically negatives the sev- eral qualifications mentioned in the. statute, is sufficient, without stating evidence to negative those qualifications.(7). If such negative evidence were necessary to support the information, it would scarcely be possible in any case to convict, in consequence of the great number of distinct heads of qualification which were enumerated in the statute. On the other hand, all the qualifications specified were peculiarly within the knowledge of the qualified person. If he were entitled to any such es- tate as the statute required, he might prove it by his title deeds, or by the receipt of the rents and profits ; or if he were the son and heir apparent, or servant to any lord or lady of a manor, and appointed to kill game, that would be a good defence. All these qualifications were peculiarly (1) R. V. Jarvis, 1 East, G44, n. See also by Lord Kenyon, 0. J., in R. v. Stoae, 1 Bast, 650 . (2) Repealed by 7 & 8. Geo. IV, o. IH. See o. 29, which ooQtama other provisions a§ to the offence. (3) Repealed by Y & 8 Geo. IV, c. 2t. See c. 30, which contains other provisions as to the ofienee. (4) p. v. Allen, 1 Moo. C. 0. 154, overruling R. v. Rogers, 2 Camp. 654, where, upon, an in- dictment for coursing deer, it was held to be necessary to call the owner to negative his consent. See also R. v. Hazy, 2 C. & P. 458 ; B. v. Mallinson, 2 Burr. 679 ; B. v. Corden, 4 Id. 2279. (5) By Holroyd, J., in R. v. Burdett,^ B. & A. 140. See also by Ashurst, J., in Diokson, v. Evans, 6 T. R. 57, 60. And see ''9 Price, 257 -^h M. & S. 211 •* 1 B. & 0. 150 ;' 3 B. & 0. 242. But see Doe d. Bridger v. "Whitehead, 8 & E. 571 ; Swpra, p. 816. («) By Lord Mansfield, 0. J., in Spieres v. Parker,' 1 T. R. 144 ; by Heath, J., in" Jelfs v. Bal- lard.^l B. & P. 468 ; by Ohambre, J., in Frontine v. ^QsVf 3 B. & P. 307. See also R. v. Stone, ^1 East, 650. (7) R. V. Tumeri 5 M. & Si 206. 822 ^¥hich Party to prove the Issues. [CH XI. ■within the knowledge of the party 'himself; but the prosecutor had prob- ably no means of proving a disqualification .(1) \. (1) By the new Game Act (1 & 2 "Wm. IT, c. 32, § 42), it ia expressly enacted, "that it shall not be necessary in any proceeding against a'ny person under that act, to negatiye by evidence any certificate, license, &c., or other matter of exception or defence; but that the party seeking to avail himself of any such certificate, &o., shall be bound to prove the same." There are simi- lar provisions in various modern statutes. As to proof of an apothecary's certificate, see Apoth. Co. v. Bentley, R. & M. 159. Note 224. — Upon the question of jurisdiction, vfhere the proceedings of a court of genera jurisdiction are alleged, the law presumes jurisdiction, and the onus of proving the contrary lies with the party who undertakes to question it. Lister v. "Wright, 2 Hill, 320. But with respect to courts of limited and special jurisdiction, it is widely different ; nothing is presumed in favor of their jurisdiction, and the party seeking to derive advantage from their proceedings is bound to show jurisdiction affirmatively. Stanian v. Davies, 2 Ld. Eaym. 796 ; Peacock t. Bell, 1 Saund. 13, H; "Winford v. Powell, 2 Ld. Raym. 1310; Harvey v. Holland, T. Jones' Rep. 103; S. C, 3 Keble, &11 ; Berkley v. Paine, 1 Ventr. R 28 ; "Wallis v. Squire, T. Jones' Rep. 230; 1 Sid. 95 ; Littlebury v. "Wright, 1 Ld. Raym. 63 ; Ladbroke v. Giles et al., WUles' Rep. 1 99 ; Sel- lers v. Lawrence et al.. Id. 413 ; Moravia v. Sloper, Id. 30; Morse v. James et al., Id. 122 ; Mills T. Martin, 19 John. Rep. 7, 33, &c.; Bowman v. Russ, 6 Coweu's Rep. 234; Adkins v. Brewer, 3 Id. 206; M'Clung v. Ross, 5 "Wheat. 116; Morgan v. Dyer, 10 John. Rep. 116; "Wyman v. Mitchell, 1 Cowen's Rep. 316. The foregoing authorities clearly show, however, that after juris- diction has once been established, every intendment is made in favor of the regularity and va- lidity of the proceedings ; and it would follow, therefore, that after proof of jurisdiction has once been introduced by the party asserting the proceedings or judgment of an inferior court, the onus of impeaching them devolves upon the other side. By pleading non-assumpsit to an action brought in a city court, wherein the plaintiff avers that this cause of action arose within the limits of the city, the defendant traverses such averment, and the burden of proving it devolves upon the plaintiff. Maples v. "Wightman, 4 Conn. Rep. 376. Tide "Wooster v. Parsons, Kirby's Rep. 27. In Virginia, where a person visibly appearing to be whiU or an Indian is claimed as a slave, the presumption arising from his color is, that he is free ; and the onus in such case lies upon the claimant, to show that he is a slave. But where the person claimed appears from external cha- racteristics to be a negro, the contrary presumption prevails, and he must show his right to free- dom. Hudgins v. Wrights, 1 Hen. & Munf. 133. And the court and jury may, in such instance, judge from inspection. Id. ; Hook v. Paige, 2 Munf. Rep. 379. See also ante, note 177, in con- nection with Pox V. Lambson, 3 Halst. 275; Gibbons v. Morse, Id. 253; and Scott v. "U'illiams, 1 Dev. 33fi, and ante, note 190. In cases where the negative does not admit of direct proof, or the facts lie more immediately within the knowledge of the defendant, he is put to his proof of the afitomative ; and where the general facts constituting a forleiture within a statute are proved, and there are exceptions to its operation in particular cases, the better opinion is that the party who would avail himself of the exception must prove it ; although, from the forms of pleading, it may be necessaiy for the other party to negative every exception in the indictment or information. Such negative allegation is, in such cases, to be repelled by affirmative proof on the other side. Accordingly, in a proceeding in rem against certain goods, under the acts of Congress of 1809 and 1814, which, together, pro- hibit all importations of goods from British ports, except importations in neutral vessels, it was held incumbent on the defendant to prove that the vessel was neutral, if he would avail himself of the exception contained in the act of 1814. United States v. Hayward, 2 Gallis. Rep. 485, 498, 499, 500. Semble, however, that if the charge against the defendants consisted in a criminal neglect of duty, it would lie on the plaintiffs to negative the exception, not only in their pleading but by proof on the trial. Id. And see ante, note 221. But the court say, in this case, " the charge was not against the defendant personally or of a criminal neglect of duty, but against the goods only, of a positive act, to wit, an illegal importation." Id. 499, 500. In an action against CH. XI.] Fact alleged in Defence. 82&, Fact alleged in defence. Althougli, in general, it is necessary for a party wlio brings an action to prove all the material facts which he alleges in support of his claim, yet where the defendant pleads a fact within his own knowledge in dis- charge of himself, and the plaintiff still insists on the defendant's liability, alleging the same fact in his replication, there the burden of the proof lies on the defendant, not upon the plaintiff. Thus, in an action of as- sumpsit, where the defendant pleaded infancy, and the plaintiff replied that "the defendant, after he had attained his full age, ratified and con- firmed the promise and undertaking," the court held, that the mere proof of a promise to pay was sufficient on the part of the plaintiff; and that it was for the defendant to prove the personal incapacity to contract, on which he grounded 'his defence, and which lay peculiarly within his own knowledge.(l) On a trial for bigamy, the register of the first marriage being produced, which stated the marriage to be by license, without stating it to be by consent of parents or guardians, the prisoner in his defence proved that he was an infant at the time of the marriage : and it was held that this a carrier for loss happening at sea, hj the vessel foundering, he must prove seaworthiness, before he is peripitted to excuse himself on the ground of its being the act of God. If the facts of the case are such that the loss may be fairly attributed to inevitable accident, and the owner alleges that the vessel was not seaworthy at her departure, the onus probandi lies on hun, and not upon the carrier. Bell v. Eeed et al., 4 Binn. Eep. 121. In an action for a penalty, under 55 Geo. in, c. 194, against a physician for practicing " without having obtained such certificate as by the said act is required ;" it was held that the onus, as to the certificate, lay with the defendant. The Apothecaries Company v. Bentley, Ry. & Mood. N. P. Rep. 159; Sheldon v. Clark, 1 John. Rep. 613, S. P., in a penal action against a physician for practicing without license. So on the trial of an indictment for selling spirituous liquors without license. Gearing v. The State, 1 M'Cord, 573, bli. The rule, however, that the onus is on the party witliin whose peculiar means of information the fact lies, is not without its exceptions. Thus in ejectment, where a good title was shown in the lessor of the plaintiff, and the defendant, to show title out of the plaintiff, put in a deed from such lessor, to certain third persons, containing several exceptions or reservations ; held that the burden of proving that the land in question was not within any of the excepting clauses, lay with the defendant. Greenleaf's Lessee v. Birth, 6 Peters' Rep. 302. Marshall, Ch. J., dissented from the doctrine established by this case, "because he understood it to impose on the defendant the necessity of proving a negative ; and because the fact was within the Imowledge of the plaintiff, and not of the defendant." Id. 315. Further, see Clarke's Lessee et al. v. Courtney et al., 5 Peters' Rep. 319. In Hawkins v. Barney's Lessee (5 Peters' Rep. 457, 469), it was decided that when the plaintiff's title, as exhibited by himself, contains an exception, and shows he has con- veyed a part, and it is uncertain whether the defendants are in possession of the land not con- veyed, the onus to prove the defendant on the ungranted part is on the plaintiff See Guthrie v. Lewis's Devisees, 1 Monroe, 142. (1) Borthwiok v. Carrathers, 1 T. R. 648. See also Hartley v. Wharton, 11 A. & E. 934. Note 225. — And where the plaintiff predicates his title' to lands, upon a deed executed by two femes covert, with their husbands, the presumption is that they were of age ; and if the, defendant would avail himself of their infancy, he must prove it. Lessee of Battin v. Bigelow, Peters' C. 0. Kep. 452. See Sherman v. Garfield, 1 Denio, 329. The plaintiff must, however, show a valid conveyance under the statute. Martin v. D welly, 6 "Wend. 9 ; KnowleS v. McCamly, 10 Paige, 342. 824 The Substance only of the Tssue^^needs he proved. [CH. XII. made it necessary on the part of the prosecution to give some evidence of the consent required by the Marriage Act.(l) Any subsequent counte- nance given by the parents or guardians, or other circumstances of a simi- lar kind, might afford ground for presuming the necessary consent.(2) A question very often arises at the trial as to which party is entitled to begin ; and since the new rules of pleading this question has been more frequently discussed than formerly ; and there have been several decisions upon the point. But although the question mainly depends upon the rule relating to the burden of proof, yet it appears to be rather dependent upon a rule of practice at the trial, than, strictly speaking, upon a rule of evi- dence. For this reason, it will not be entertained in the present work.(3) CHAPTER XII. OF THE ETJLE THAT THE SUBSTANCE ONLY OP THE ISSUE NEEDS BE PROVED. Another general rule is, that the substance only of the issue needs be proved. This is founded on the principles of good sense and justice. If a party prove the substance of the issue, he has proved a substantial ground of action, and is entitled to his remedy. He will not be obliged to prove immaterial averments, which might be expunged from the record without affecting his right to recover. Such averments serve only to incumber the record ; and the proof of them would be as immaterial as the averments themselves. It is a general principle of evidence, that all the material facts alleged in the declaration, which are put in issue, must be established by legal proo£(4) Another principle is, that the nature and extent of the proof (1) R. V. Butlfer, R. & R. C. C. 61. (2) Ibid, in note. As to the evidence requisite to show illegitimaey, see St George (Parish) v. St. Margaret (Parish), 1 Salt. 123. (S) See supra, p. 8 1 6, n. 3. (4) Note 226. — The rule stated in the text, is one upon which all the authorities will be found to unite, whatever diversity of opinion may occasionally be found to prevail in regard to its applicar tion. It by no means requires, however, that all the matters stated in the pleadings should be proved exactly as they are alleged ; for this would be not only inconvenient,, to an extreme, but in the great majority of oases, to say the least, utterly impracticable. " Hence it is,'' says , Mr. Startiie (4 Starkie's Ev. 1526), "that an artificial and legal identity must be resorted to, as the proper test of variance : that is, it is sufficient, if the proofs correspond with the allegations, in respect of those facts and circumstances which are, in point of law, essential to the charge or claim." See 9 Petersd. Abr. 1 52, note. The cases cited in the succeeding notes under this head, will afford ample illustrations of the above principle, with its exceptions. It should be noticed here, however, and remembered by the practitioner, that wherever a variance between the alle- gations and proofs is relied upon, either by the one party or the other, the objection must, in CH. XII.] In Civil Cases. 825 will depend upon the manner in which the alleged facts are introduced ; allegations which are merely matters of inducement, do not require such strict proof as those which are precisely put in issue between the par^ ties.(l) Evidence, as Lord Mansfield used frequently to observe, is always to be taken with reference to the subject matter to which it is applied, and with reference to the person against whom it is used. There are a great variety of examples, both in civil and criminal cases, which might be cited in illustration of the rule now under discussion. The object in the present chapter will be to make a selection of such ex- amples as appear most generally useful : the nature of material and im- material averments, and the doctrine of variances, will be also here con- sidered. 1. Examples in civil cases. In an action on a bond, if the defendant plead solvit ad diem, the issue will be maintained by proof of payment before the appointed day ; and payment to a third person by the appointment of the plaintiff, will be. sub- stantially payment to the plaintiff himself.(2) general, be taken at the trial of the cause, or it -will not afterwards he heard. Hayden v. Nbtt, 9 Conn. Rep. 367 ; Lawrence v. Barker, 5 Wend. Rep. 301 ; West v. Andrews, 1 Bam. & Cress; 11 ; Smith V. Hicks, 1 Wend. 202j (Paots'proved but not pleaded are not in general available' to the party proving them ; for the court pronounces its judgment seeimdmn allegata el probata^ 2 Comst. R. 506 ; Field v. The Mayor, &c., of New York, 2 Selden, I'TS; 20 Barb. R. 473.)' (1) By Chambre, J., 1 N. R. 210. (2) Note 227. — So, a conveyance to the nominee of the defendant will support an allegation that "the defendant became the purchaser." Seaman v. Price, Ry. & Mood. 195. The question, say the court, was, substantially, whethpr the defendant had received the benefit of the convey- ance, so as to make him liable for what he had agreed to pay the plaintiff for it. Upon a plea of payment, the defendant may prove a discharge in bank notes, negotiable notes on individuals; or a debt already due from the payee to the payor; delivered and accepted, or discounted as pay- ment. Whittington et al. v. Roberts, 4 Monroe, 173, 174. "It is true," say the court, "that payment literally means a discharge of the obhgation, according to its- letter. But courts have extended the issue more to the spirit, and h^ve not confined it to the letter." Bank notes, in conformity to common usage and understanding, are regarded as cash. Keith v. Jones, 9J0hn: Rep. 120; MiUer v. Race, 1 Burr. 452 ; Grant v. Taughan, 3 Burr. 1516. It has been h?ld in Connecticut, that an averment of a defendant that he had sent cash, or money; to the plaintiff per mall, was not sustained by evidence that he had sent treasury notes, for " that treasury notes are not cash." Foquet v. Hoadley, 3 Conn. Rep. 534. Where' the plaintiff -avers performance of a condition precedent, he cannot sustain his averment by »■ tender, or an excuse for non-pen- formanoe. Duekham v. Smith, 5 Monroe, 372. In an action by a minister of the gospel, for hiS salary, upon a count for services performed, it appeared that he had been prevented by the de-- fendants from making use of the meeting-house, but that he preached in private houses to such as chose to attend ; and it was held that there was no variance. Thompson v. Catholic. Con. Society in Rheob., 5 Pick. 469. Proof that the defendant had a horse of the plaintiff for sale, does not support an allegation that he purchased it, and is debtor for the price: Johnson v. Crocker, 11 Mart. Lou. Rep. 617. An allegation in a real action, that the plaintiff was owner; is supported prima facie, by evidence, that he was in possession ; for the law presumes possession to follow the title. Layton v. Menard'fe Syndics, 2 Mart. Lou. Rep. (N. S.) 505. Where the owner of a miU brought an action to recover damages for a diminiition of the profits, occasioned by an obstruction erected by the defendant ; it being alleged in the declaration that the plaintiff was possessed of the mill, and it appearing in evidence that the mill was occupied by a tenant at 826 The Substance only of the Issue needs le proved. [CH. Xll. In an action of covenant, wlien the breacTi assigned is, "that the de- fendant has not used a farm in a husbandlike manner, but on the contrary has committed waste," &c., to which the defendant pleads, " that he has not committed waste," &c., but used the farm in a good and husbandlike manner, and issue is taken upon this, the plaintiff cannot give evidence of any unhusbandlike treatment of the farm, not amounting to waste ; for the issue is narrowed to this point.(l) So an allegation that the de- fendant as tenant used the premises in an improper manner, being a charge of voluntary waste, is not supported by evidence of permissive waste.(2) In an action against a sheriff, where the plaintiff declared, that he had J. S. and his wife in execution, and that the defendant suffered them to escape, and a special verdict was found, that the husband alone was taken will at a reduced rent, on account of the obstruction, it was held that the declaration was sup- ported by the evidence, as the injury was consequential upon an act done while the plaintiff was in possession, and also as the possession of a tenant at will is the possession of the landlord. Sumner v. Tileston et al., '7 Piclr. 198. And where, in covenant, the declaration charged that' during a specified period of time, the defendant deprived the plaintiff of the water necessary for hig miU, by diverting it therefrom, and suffering it to be diverted by others ; held, the plaintiff was not hmited in proving acts committed by the defendant, or other persons, to the period stated in the declaration ; but might prove previous acts, in consequence of which, the injury was sustained during the alleged time. Hollingsworth v. Dunbar, 5 Munf. 199. If a declaration aver that, in pursuance of an agreement, an action was discontinued ; evidence that since the agreement no steps had been taken in the cause, is not sufficient to support the allegation. Panshaw v. Heard, 3 Carr. & Payne, 190. "Where the gist of the action is negligence, the party will be confined to the species of negli- gence alleged (Breedlove et al. v. Turner, 9 Mart. Lou. Rep. 353); as where, in an action against an attorney, it was charged that he negligently brought a cause of a particular kind in the parish court ; held, that he could not be made Mable for neglect, in not introducing proof to show that the cause of action arose within the parish. Breedlove et al. v. Turner, supra, 343, 380. And, where issue is taken on the neglect of the postmaster, it is not admissible to show neglect in the assistant postmaster. Dunlap v. Munroe, 7 Cranch, 242. So, if the declaration alleges misfea- sance, as the gist of the action, the plaintiff cannot go for non-feasance. Doane v. Badger, 12 Mass. Rep. 65, 69. In an action by a passenger in a coach, against the owner, for an injury done him in overturning ; if the declaration state that the servants of the defendant negligently " drove, conducted, and managed the coach," the plaintiff cannot recover, if the negligence was m sending out an insufficient coach. Mayor v. Humphries, 1 Carr. & Payne, 25. But where the charge was that the defendants " so carelessly and negligently provided, fitted out, managed and conducted their stage coach," that while they were driving, it broke down, and injured the plaintiff; and the injury turned out to have been occasioned by the insufficiency of the coach itselfl the nut, intended to secure one of the wheels, being shown unfit for that purpose, in con- sequence of which the wheel came off, &c. ; held, that there was no variance. "Ware v. G-ay, 11 Pick. 106. In case, for an injury to the reversion, the plaintiff alleged the premises to be in the occupation of S. P. as tenant to him ; and it was held that the allegation was sufficiently estab- lished by showing that S. P. had been let into possession by, and paid rent to, a cestui que trust to whom plaintiff was trustee. "Vallanoe v. Savage, 7 Bing. 500. Under a count against a sheriff for a voluntary escape, the plaintiff is entitled to recover, if he prove a negligent one. Bonafous v. "Walker, 2 T. R. 126. But in trespass, if the defendant plead a license to enter, and issue is taken thereon, evidence of a lease will not support the plea. Johnson v. Carter, 16 Mass. Rep. 442. See note 196. (1) Harris v. Mantle, 3 T. R. 30t. (2) Martin v. Gilham, t A. & E. 640. CH. XII.] In Civil Cases. 827: in execution (the execution being for a debt due from the wife before coverture), and that he escaped, the court held, that the substance of the issue was found, and gave judgment for the plaintiif.(l) In a similar action against the marshal, where the plea stated that the debtor returned into custody before action brought, and that thereupon the defendant be- fore and at the time of the commencement of the suit, kept and detained, and still did keep and detain him in custody ; it was held that evidence of a second escape after the commencement of the action, and before plea pleaded, was inadmissible on the part of the plaintiff; as the defendant would not be affected by anything which had occurred after action. brought.(2) In actions for slander, the courts used at one time to hold, that the plaintiff was bound to prove the words spoken precisely as laid ; but it is now settled that it will be sufficient, if the plaintiff prove some material part of the words alleged on the record.(3) If the declaration contain several actionable words, the plaintiff will be entitled to a verdict on proving some of them.(4) But the rule is different, where the words are not actionable in themselves, and the action is brought for consequential damages arising from them : in that case, it is not sufBcient to prove equiv- alent words of slander, though explained in the same sense by the defend- ant himself (5) In an action of replevin, where the defendant avowed taking the cattle (1) Roberta v. Herbert, 1 Sid. 5 ; S. C, cit. B. N. P. 299. And see Jones v. Clayton, 4 M. & S. 349. (2) Davis V. Chapman, 2 M. & Gr. 921. And see Basanv. Arnold, 6 M. & "W. 559; Bromfield V. Jones, 4 B. & 0. 380. Dexter v. Adams (2 Denio, 646), shows that if the plaintiff has used artifice to induce the debtor to escape, he cannot hold the sheriff for the escape. (3) The witnesses must prove the words used, and wiU not be allowed to state the impression' produced on their minds by them. Harrison v. Bevington, 8 C. & P. ^08. (4) Oompagnon v. Martin, 2 "W. Bl. 190. And see Willmett v. Harmer, 8 C. & P. 695. Note 228. — It is sufficient, if the plaintiff proves the mbstamce of the words laid in his declara- tion. Kennedy v. Lowry, 1 Binn. 393 ; Miller v. Miller, 8 John. Rep. 14; Grubbs v. Heysen 2 M'Cord, 305 ; Nye v. Otis, 8 Mass. Rep. 122. But the sense and manner of speaking, as laid in the declaration, must correspond strictly with the proof: therefore, words charged to have been spokea in the third person will not be sup- ported by proof of words spoken in the second person. Miller v. Miller, 8 John. Rep. 74; M'ConneU v. M'Coy, 1 Serg. & Rawle, 223, overruling Tracy v. Haskins, 1 Binney's Rep. 395, note ; Wolf v. Rodifer, 1 Har. & John. 409. (It is enough to prove the material words charged (Johnson v. Tait, 6 Binn. 121) ; but not enough to prove a general charge, aa of perjury, where the complaint alleges a specific charge-; Aldrich v. Brown, 11 Wend. 596 ; Emery v. Miller, 1 Denio, 208.) (5) Armitage v. Dunster, 4 Doug. 291, See Maitland v. Goldney, 2 Bast, 434. Nor can the plaintiff prove other words than those charged in the complaint to prove actua^ malice. Howard v. Sexton, 4 Comet. 157 ; Root v. Lowndes, 6 Hill, 519 ; Campbell v. Butts, 3 Oomst. 174. Under, the New York Code of Procedure, the defendant may allege and prove a state of facta tending to establish the truth of the words complained of as slanderous, in mitigation of damages. Brisley v. Shaw, 2 Kemau R. 67. 828 The Substance only of the Issue Tieeds he proved. [CH. Xll. as damage feasant, the plaintiff pleaded iu bar, that one "W. was seized of a house and land, &c., whereto he had common, &c., and demised the same to him to hold from a certain day next before, for a year ; the avow- ant traversed the lease, modo et forma, upon which issue was taken ; the jury found a special verdict, that W. made a lease to the plaintiff on the day stated, for a year ; and the plaintiff had judgment, for although this is not the same lease as pleaded (since this begins on the day, and the other not so soon), yet the court said, the substance of the issue is, whether or not the plaintiff had such a lease that by force thereof he might have common at the time, and this appeared to be the case here.(l) (1) Pope v. Skinner, Hob. 12 ; S. C, cit. B. If. P. 300. And see Forty t. Imber, 6 East, 434. Note 229. — But the party will not be allowed to depart altogether from the issue, as if it had been proved that he had a right of common by lease from another. Pope v. Skinner, cited in the text. An averment of a demise for three years, in an action of replevin, is not supported by proof of a lease for one year certain, and two years' fwther possession on the same terms, by consent of the landlord. Alexander v. Harris, 4 Cranch, 299. So where the defendant, in his avowry, averred that .the plaintiff, as his tenant, held and enjoyed certain premises for the space of sewen yean-s and six months, under a, certain demise and at a certain rent, and by the evidence it appeared that the premises were held by the plaintiff only six years and, six months, the variance was held fatal. Tioe v. Norton, 4 Wend. Rep. 663. The foregoing cases were decided upon common-law principles, which require the avowant to allege what estate he was seized of, and also the grant or demise to the tenant, with great pre- cision and accuracy. The difficulties attending this practice, and the inconvenient leng-th to {which it has been carried, will appear by a note of Sergeant Williams to Pooly v. Longueville (3 Sauud. 284 c, note 3). Tide, also, Wright v. WUhams, 5 Cowen's R. 338, and the authorities there reviewed by Sutherland, J. Forty v. Imber, cited in the text, was decided under the more liberal provisions of 11 Geo. 11, ch. 19, § 22, and expressly upon the ground that, by that statute, the rigor of the common law in this respect had been relaxed, and that, since its passage, the de- fendant in replevin might recover rent for a less period than he avowed for. A similar statute has been enacted in New York, which provides, that " Whenever a distress shall be made upon any lands or tenements, for any rents or services issuing out of such lands or tenements, and a replevm shall be brought for the property distrained, the defendant may avow or make cog- nizance generally, that the plaintiff in replevin, or other tenant of the lands or tenements whereon such distress was made, enjoyed the same under a grant or demise, or by any other title, at a cer- tain rent, or by certain.jServices during the time wherein the rent distrained for was incurred, which rent was then and stUl remains due ; or that the place where the distress was taken was parcel of certain tenements for which the rent or service distrained for Was, at the same time of such distress, and still remains, due ; without further setting forth the grant, tenure, demise or title of the landlord or lessor ; and witliout naming any person certain as the tenant of suoli lands or tenements." 2 R. S. B29,, § 41. And by § 42, it is further provided, that " In an action of replevin for beasts distrained for doing damage, it shall be a good justification for the defendant to plead, avow or make cognizance that he, or the person by whose command he acted, was law- fully possessed of the lands and tenements upon which the distress was made ; and that the beasts or chattels distrained were, at t)ie time of suoh distress, doing damage therein ; without setting forth a title to such lands and tenements." How far these provisions will relieve the avowant from proving precisely what he alleges, should he, instead of avowing generally according to the statute, set out his title, &c., as at com - mon law, remains to be settled by judicial construction. Under the Englisli statute above referred to, it has been held, that although the defendant in replevin may avow generally, yet the contract for letting must be truly stated and proved. Thus, where the defendant avowed as bailiff of one Tate, for rent due from the plaintiff, as tenant of certain premises, to the avowant by virtue of a demise, &c. ; and, on the trial, it turned out that the premises had been devised by OH. XII.J In Civil Cases. 829 To a declaration in trespass the defendant pleaded generally that he had enjoyed as of right for thirty years next before the commencement of the action ;(1) the plaintiff replied that a life estate was outstanding for twenty- seven of the said thirty years ; the defendant rejoined that such estate did not continue during any part of the said thirty years ; and issue was there- upon joined. The defendant proved enjoyment during two periods, amounting together to thirty years, one period before, and one after the life estate ; and it was held that the issue on his part was supported. (2) In an action by a commoner for disturbing bis common by putting on cattle, the defendant pleaded a right of common appurtenant for cattle levant and couchant ; that the cattle in the declaration mentioned were the defendant's own commonable cattle levant and couchant, and that he put them on to use the common. The plaintiff replied that " all the said cattle in the declaration mentioned " were not the defendant's own com- monable cattle levant and couchant, in manner, &c. It was held that the defendant maintained his issue by showing that on the occasion of every alleged disturbance, some of the cattle put on were levant and couchant ; and that upon that issue the plaintiff could not insist on a surcharge :(3) as the word " all " was interpreted to mean that the levancy and couchancy was untruly alleged as to all the cattle; not that it was truly alleged of some, and falsely of others. If the issue joined between the parties is, whether A. and B. were churchwardens, proof that one was, and not the other, would not be sufB,- cient.(4) Where the declaration averred, that the plaintiff was constable of a particular parish, and that he was assaulted in the execution of his of&ce as constable, and it appeared on the evidence, that he had been sworn in to serve for a whole liberty, of which the parish formed a part, this was held to be a material variance.(5) one Bradney to three trustees to sell; that, after the death of Bradney, the three trustees became parties to deeds of lease and release, by which the property was conveyed to Tate; but these deeds were executed by only two of the three trustees: under these circumstances, it was held, that as the defendant had alleged a title to the whole rent, and only proved a right to two-thirds of it, the variance was fatal. Philpott v. Dobbinson, 6 Bing. 104. But where the defendant avowed for rent in arrear, for a dwelling-house with the appurtenances, and it appeared that the plaintiff merely occupied the upper part of the house, and that the shop and yard were in the occupation of other tenants, it was held no variance. Page v. Chuck, 10 Moore, 264. And so, where the defendant avowed for rent, stating that the plaintiff held the closes, &o., at and undet a certain yearly rent ; and on the trial it turned out that the tenant held the closes mentioned in the declaration, and two others also, at the rent mentioned in the avowry ; this evidence, it was decided, supported the avowry, inasmuch as each part of the land was liable for the entire rent ; and the defendant might well say, that the closes in which the distress was taken were held under the whole rent, payable for all the closes. Hargrave v. Shewin et al., 6 Bam. & Cress. 34. (1) Under 2 & 3 "Wm. IV, c. 11, §§ 1, 4, 7. . (2) Clayton v. Corby, 2 Q. B. 813. (3) Bowen v. Jenkin, 6 A. & B. 911. See Barnes v. Hunt, 11 Bast, 451. (4) B. N. P. 299. (5) Goodes v. Wheatly, 1 Camp. 231. 830 The Snhstance only of the Issue needs le proved. [CH. Xli. A plea of tender will be supported by proof of a tender of a larger sum than that named in the plea;(l) but if the plaintiff reply to such a plea, that, before the cause of action and after the tender, he demanded the sum tendered, he will be obliged to prove, under the issue joined upon this replication, a demand of that specific sum. 1'he proof of a demand of a larger sum would not support the issue. (2) A plea of payment in accord and satisfaction will be sustained by proof of the payment of a sum suffi- cient to cover the plaintiff's real demand, and it will not be necessary to show payment of the whole sum stated in the plea.(3) 2. Examples in criminal cases. The same general rule of evidence applies, if possible, still more strongly to the case of criminal prosecutions than to civil suits ; as it is an universal principle, which runs through the whole of the criminal law, that it will be sufficient to prove so much of the indictment as charges the defendant with a substantive crime.(4) If the indictment charges that the defendant did, and caused to be done, a particular act, it is enough to prove either one or the other. If the de- fendant is charged with composing, printing, and publishing a libel, he may be convicted only of the printing and publishing.(5) On an indictment for obtaining money under false pretences, it is not necessary to prove the whole of tlae pretences charged ; proof of part of the pretences, and that the money was obtained by such part, (6) is suffi- (1) Dean v. James, 4 B. & Ad. 546. (2) Elvers v. Griffiths, 5 B. & A. 634 ; Spybey v. Hide, 1 Camp. 181 ; Brandon v. Newington, 3 Q. B. 915, overruling Tyler v. Bland, 9 M. & "W. 338. See Cotton v. Godvrin, 7 M. & W. 147 ; Hesketh v. Pawoett, 11 M. & W. 356. (3) Falcon v. Benn, 2 Q. B. 314. (4) By Lord EUenborough, 0. J., in R. v. Hunt, 2 Camp. 683. (5) R. 7. Hunt, 2 Camp. 583 ; R. v. "WUliams, Id. 646 ; R. v. Middleliurst, 1 Burr. 400. See, also, cases in 2 Bast P. C. 515, 516, and in 2 Russ., Or. & M., by Greaves, bk. 6, ch. 2, § 3, p. 786, el seq. (6) R. v. Hill, R. & R. Cr. C. 190. Note 230. — But where an indictment for obtaining money by false pretences, alleged that the false pretence consisted in the defendant's having said that he had paid a sum of money into the bank, and the proof was, of his having said that a sum had been paid into the bank, without saying by whom, the variance was held fatal. Rex v. Plestow, 1 Camp. 494. The case goes upon the ground that there was a difference in substance between the two assertions. It is not essential, however, to prove that the prisoner used the identical words which are alleged ; acts and conduct, which virtually amount to the false pretence charged, will be enough. 4 Starkie's Ev. 563, 564. The rule that all the pretences charged in the indiciment need not be proved, unless indeed all are necessary to constitute the offence charged, has been recently recognized in New Tork (The People v. Haynes, 11 Wend. 557); and in this case it is laid down, that where the false pretences proved arc, per se, sufficient to constitute the offence, the accused will bo convicted ; and those not proved may be regarded as surplusage. See also Rex v. Perrott, 2 Maule & Selw. 379, S. P. Nor is it necessary that the pretences charged should be the sole inducement to the credit or delivery of the property ; it is enough if they had so material an effect in procuring the credit or inducing the delivery, that without their influence the party defrauded would not have ■CH. XII.] In Criminal Cases. 831 cient ; unless tlie false pretences were so connected as to be incapable of separation.(l) On an indictment for burglary and stealing goods, if it appear that no burglary was committed, as where the breaking and entering were not in the night — or on a charge of robbery, where the property was not taken from the person by violence, or by putting him in fear — the prisoner may be found guilty only of the simple larceny, or stealing.(2) On the trial of an indictment for murder, the jury may find the prisoner guilty of manslaughter only ; for the principal matter is the unlawful kill- ing, and the malice is only a circumstance in aggravation. (3) And if the manner or means of the death, proved at the trial, agree in substance with the means charged in the indictment, it will be sufficient ; as where the indictment is for killing with a dagger, and the evidence proves the killing with a staff; or if the indictment be for killing with one sort of poison, and the evidence proves the killing with another ; such evidence main- tains the indictment, because the proof of the identical instrument is not absolutely necessary to the proof of the fact itself ; (4) but if the charge is for poisoning, and the death is proved to have been caused by striking or starving, this evidence would not support the indictment, as the species of death in the one case is totally different from that in the other. (5) If the indictment charges that A. gave the mortal blow, and that B. and C. were present, aiding and abetting, &c., but on the evidence it appears that B. struck, and that A. and C. were present, aiding, &c., this is not a material variance, for the stroke is adjudged in law to be the stroke of every one of them, and is as strongly the act of the others, as if they all three had held the weapon and had struck the deceased.(6) The identity of the person supposed to have given the stroke, says Foster, J., is but a given the credit, or parted with the property. The People v. Haynes, supra. Where several act in concert, the pretence conveyed by the words of one, in the presence of the rest, will sup- port an allegation of false pretence by all. Young v. The King, 3 T. R. 98. So if the others be not present, provided what is said by one be in pursuance of a previous confederacy among all. Livermore v. Herachell, .S Pick. 33. (1) R V. Wickham, 10 A. & E. 34. (2) 2 Hale P. C. 302 ; 2 East P. C. 184. And see R. v. WithaJ, 1 Lea. 88. (3) Mackalley's Case, 9 Rep. %1 b; Co. Lit. 282 a; Gilb. Ev. 233. So upon a trial for petit treason, the prisoner might have been found guilty of murder only. Case of Swan and Jefferys, Fost. Disc. 104. (4) Maokalley's Case, ut supra; Gilb. Ev. 231 ; 1 East P. C. 341 ; Donellan's Case, 2 Hale P. 0. 185. And see R. v. Clark, 1 B. & B. 473 ; R. v. Jackson, 18 How. St. Tr. 1075 ; 3 Inst. 135 ; E. V. Grounsell, 7 C. & P. 788 ; People v. Colt, 3 Hill, 432. (6) See the authorities cited last note, and 2 Inst. 319. By a bill " for further improving the administration of criminal justice," recently introduced by Lord Campbell into the House of Lords, and ordered to be printed 13th February, 1851, it is proposed to be enacted (by § 2), that in indictments for murder or manslaughter, the means by wliich the injury was inflicted need not be specified, but that it shall be sufficient to say that the person accused did " kill and mur- der," or " kill and slay'' the deceased. (6) MaokaUey'a Case, 9 Rep. 61 b ; 1 Plowd. 98 ; WaUis's Case, 1 Salk. 334; Fost. Disc. 351 ; Towle's Case, on stat. 43 Geo. Ill, o. 58, 3 Prl 145. 832 The Substance only of the Issue needs he proved. [CH. xn, circumstance, and in this case a very immaterial one. The stroke of 'one is, in consideration of law, and in sound reason too, the stroke of all. They are all principals in law, and principals in deed.(l) Dn the other hand, if two persons are indicted as principals, and one is proved to be only accessory, he must be discharged on this indictment, (2) for in consideration of law their offences are quite different. And one indicted as accessory before the fact cannot be convicted upon evidence proving him to have been (principal in the second degree) present, aiding and abetting, at the fact. (3) In Mackalley's Case,(4) where the prisoner was tried for the murder of a Serjeant atmace in London, the indictment charged that the sheriff made a precept to the serjeant for the arrest, and it appeared upon the evidence that there was no such precept, but that the serjeant made the arrest ex officio at the plaintiff's request, on the entry of the plaint according to the custom of the city ; and all the judges held, that the variance between the indictment and the evidence was not material, because the warrant to arrest was only a circumstance, and the substance of the matter had been found, which was, that the prisoner killed an officer in the lawful execu- tion of legal process. The judges were also of opinion that the indictment might have been general (that the prisoner feloniously and of his malice prepense killed, &c.), and that the special matter might have been given in evidence ; and since the indictment contained such an averment, they held that the charge of murder had been proved, notwithstanding that the ispecial matter given in evidence might vary in substance &om the special matter contained in the indictment.(5) (1) Note 231. — So where A. was named in the indictment as principal for maiming, and D. as aiding and abetting, the court charged that if both were present and one only committed the offence, and the other was aiding and abetting, "both are equally guilty," both may be said to have done the act, and both are answerable for it as principals;" and further, that even if the jury found " that D. was principal, and A. accessory, the indictmpnt would be sustained." The State V. Mairs, 1 Coxe's Rep. 453, 457. This must, of course, mean where the punishment is the same. (2) Gilb. Ev. 232. See Post. Disc. 361. (3) R. V. Gordon, 1 Bast. P. C. 352. Note 232. — In New York (2 R. S. 698, § 6), persons who are principals in the second degree in the commission of felony, or who are accessory to a murder or felony before the fact, are amenable to the same punishment as principals in the second degree. Accessories after the fact, however, are liable to a milder punishment. Id. 699, § 1. (4) 9 Rep. 61 b. Note 233. — In order to make killing a bailiff, by resisting the execution of mesne process in a civil action, amount to murder, U seeins necessary to prove the writ as well as the sheriff's war- rant to the bailiff. Rex v. Mead, 2 Stark. Rep. 205, and sea note a, 201 ; also Rex v. Meade, 1 Holt's N. P. Rep. 593, S. P. (5) Note 234. — As the result of the cases cited in the text, and otliers, relating to the same sub- ject, Mr. Chitty, in a very lucid dissertation on the rules of proceeding in criminal cases, gives the following : " The jury may acquit the defendant of a part, and And him guilty of the residue. Thus, they may convict him upon one count of the indictment, and acquit him of the charge con- tained in another; or upon one part of a count capable of division, and not guilty of the other CH. XII.] In Criminal Cases. 833 part- as on a count for composing and publishing a libel, the defendant may be found guilty of publisMng only. And, in general, where, from the evidence, it appears that the defendant has not been guilty to the extent of the charge specified, he may be found guilty, as far as the evidence vrarrants, and be acquitted as to the residue; as, where he is charged with engrossing 1,800 quarters of wheat, and the evidence amounts to but 'JOG (Hawk. b. 2, c. 26, § 75) ; but if a contract be described, it must be proved as laid, and the jury cannot find a variant contract. 2 Hawk. b. 2, c. 26, § 15 ; Lane, 19, 59, 60. And where the accusation includes an offence of inferior degree, the jury may discharge the defendant of a higher crime, and convict him of the less atrocious. Thus, upon an indictment for burglariously stealing, the prisoner may be con- victed of the theft, and acquitted of the nocturnal entry (1 Leaoh, 36, 88; S East P. C. 516 ; 1 Hale, 559, 560; Hawk b. 2, i;. 47, § 6; 1 Hale, 560; Com. 478; 2 Hale, 302); upon an mdict- ment of murder, he may be convicted of manslaughter (Co. Litt 282 a; 2 Rol. Rep. 460 ; Cro. Eliz. 296 ; 3 Dyer, 261 a ; 2 Hale, 302, 292, 293 ; Hawk. b. 2, c. 47, § 4) ; on an indictment on the statute of stabbing (1 Jac. I, a 8), he may be acquitted of the statutable offence, and found guilty of felonious homicide. Style, 86 ; 2 Hale, 302 ; Hawk. b. 2, c. 47, § 6. On an indictment for stealing privately from the person, he may be found guilty of the larceny only. 1 Leach, 240 ; 2 Hale, 302; Hawk. b. 2, c 47, § 6. On an indictment for grand,, the offence may be reduced to petit larceny. 2 Hale, 302 ; 2 Str. 1134; Hawk. b. 2, e. 47, § 6. Robbery may be softened into felonious theft (2 Hale, 302 ; Hawk. b. 2, c. 47, § 6) ; and petit treason lessened to murder, or any description of less atrocious homicide. 1 Leach, 4o7 ; 2 Hale, 302, 292 ; 1 East P. C. 339, 356 ; Fost. 104 ; Hawk. b. 2, c. 47, § 6. And on an indictment founded on a statute, the defend- ant may be found ginlty at common law. Hawk. b. 2, c. 46, § 178. The only exception to this rule seems to be, where the prisoner, by being originally indicted for a different offence, would be deprived of any advantage which he would otherwise be entitled to claim ; in which easfe the prosecutor is not permitted to oppress the defendant, by altering the mode of proceedings. A defendant, therefore, cannot be found guilty of a misdemeanor on an indictment for felony, because he would by that means lose the benefit of having a copy of the indictment, a special jury, and of making his full defence by counsel. Str. 1137 ; Kel. 29, 30 ; 12 Mod. 520, u. b ; Cro. Car. 332 ; Hawk. b. 2, c. 47, § 6. And though it was formerly thought that if, after conviction of felony, the fact appeared to be a mere trespass, judgment might be given for the latter (Hawk. b. 2, c. 47, § 12 ; Cro. J., 497, 498 ; 2 Str. 1137), the contrary is now ■festablished, and the prisoner is entitled to have the judgment altogether corrected. 1 Leaoh, 12 ; 2 Str. 1137. Upon the same principle, no one can be convicted of petit treason on an indictment of common murder, because he would thereby lose the benefit of the larger number of peremptory challenges (Fost. 304, 328) ; but, in an indictment for the former, he may be properly convicted of the latter, because he thereby enjoys a higher benefit, instead of losing any privilege to which he may be entitled. 1 Leach, 437 ; 2 Hate, 302 ; 1 East P. C. 339, 356 ; Fost. 104 ; Hawk, b. 2, c. 47, § 6. "Where the offence appears from the evidence to be of a higher degree than is alleged in the indictment, it is in the discretion of the court to discharge the jury, and direct another indictment to be preferred. Post. 327, 328, 104. Thus, where a prisoner is accused of murder, and the crime amounts to petit treason, the court will not direct an acquittal, but dis- charge the jury of that indictment, and direct a fresh bill to be preferred, lest he should avail himself of the previous acquittal." Id.; 1 Chitty's Crim. Law, 637, 638, 639. Upon an indict- ment for burglary and larceny against two, one may be found guilty of the burglary and larceny, and the other of the larceny only. Rex v. Butterworth, Russ. & Ryan, 344. On an indictment against two, charging them with a joint larceny ; one was found guilty of a capital offence, and the other of a simple larceny ; thus presenting the question, whether sentence of death could be passed upon the one capitally convicted, or whether the verdict of the jury was not virtually an acquittal of both. The case coming to be considered by the judges, they were of opinion that judgment could not be given against both ; but that on pardon being granted, or a nolle prosequi entered, as to the one convicted of a simple larceny, judgment might be given agaiust the other. Eex V. Hempstead, Russ. & Ryan, 334. The American cases will be found substantially accordant with the doctrine stated above. On an indictment for a forcible entry and detainer, the jury may acquit, as to the entry, and convict of the detainer. The People v. Anthony, 4 John. Rep. 198; Commonwealth v. Rogers, 1 Serg. & Rawle, 124. So, on an indictment for grand larceny, the jury may convict of petit larceny. YoL. I. , 53 834 The Suhstance only of the Issue needs le proved. [CH. Xll. The state T. "Wood, 1 Eep. Const. Court, 29. And proof Of a rape will sustain an indictment for a mere attempt to commit one. State of Connecticut v. Shepherd, 7 Conn. Eep. 64 ; Common- wealth v. Cooper, 15 Mass. Eep. 187. So, Under an information for an assault, with intent to commit manslaughter, it has been held, the defendant might be convicted of the offence charged, though the proof was of an assault, with intent to murder. State of Connecticut v. Parmelee, 9 Conn. Eep. 259. By the Eevised Statutes of New York, several crimes are distributed into degrees ; as first second and third degrees of manslaughter, burglary, forgery, &c., and different pimishments are afBxed to these degrees respectively, wherefore it becomes necessary to state the degree in the indictment. The same statutes (Vol. 2, 702, § 56), provide, that on trial of an indictment for ac- tually committing a crime, there shall not be a conviction of an assault with intent, or an attempt to commit the crime ; though (by Id. § 27), where the offence consists of different statute degrees, the jury may acquit, as to the degree charged, and convict of any inferior degree of the same of- fence, or of an attempt to commit the offence. Under a previous provision (Id. 665, § 36), Quoteau was indicted for an assault and battery, with a deadly weapon, upon Meigs, with intent to murder. In proof, it turned out to be a mere assault, but no battery ; which is made an in- dependent crime by a subsequent section. Id. p. 66, § 39. An objection vras therefore taken, that the case not coming within the Eevised Statutes respecting convictions of inferior degrees, the. defendant must be acquitted. Held otherwise, and that the above common-law doctrine ap- phed. People v. Quoteau, Franklin 0. & T., Feb. 1834, Cowen, C. Judge, presiding. It is proper to observe here, that the rules of evidence in criminal cases are, in most respects, the same as in civil oases ; the chief distinction which prevails win be found to originate in that caution which is always observed when life or liberty is in question, and in those benign pre- sumptions with which the law meets every accusation involving moral turpitude. See United States V. Porter, 3 Day's Eep. 283, per Livingston, J. See also 2 Hale's P. C. 193 ; 4 Burr. 2082. The prosecutor must prove, all the facts alleged in the indictment, entering into the substance of the charge ; and all the distinctions between material and immaterial averments are equally well settled in criminal as in civil cases. See post, note 239. As to allegations respecting iiTne, in an indictment, see post, note 248, and place, see post, note 249. In The State v. Mairs (1 Coxe's Eep. 453), the prisoner was indicted for maiming, by feloniously cutting off the nose of a man with a knife; upon the trial, some observations having been made as to the manner in which the act was done, Kinsey, C. J., in charging the jury, remarked : " That the substance of the crime charged is the willful and deliberately cutting off the nose, and whether this is effected by one instrument or another is perfectly immaterial. I think I may go further, and say, if the party deliberately and with the intention of biting off the nose of another, watches his opportunity and effects his purpose, the nose may be said to be cut off, and the jury would be bound to find so. It is not necessary to prove to have been done with a knife, as laid in the indictment." A variance as to an allegation of number, magnitude or value, is in general unimportant ; pro- vided that what is proved in respect in respect to these paj'ticulars is sufficient to constitute the offence charged (Rex v. Jenks, 2 East's P. C. 514; 1 Hale, 513; 1 Holt, 695; 2 Campb. 26i); and so of sums of money. Rex v. Gilham, 6 T. R. 265. In treason, a variance between the proof and indictment, as to the number of insurgents, is not material. United States v. Vigol, 2 Dall. 347. Where an indictment for a nuisance lo a highway alleged it to be a way for all the liege subjects, &c., to go with their horses, coaches, carts, and cai'riages; and the evidence was, that carts of a particular description, and loaded in a particular manner, could not pass ; held, not a misdescription, it not being laid aa a highway for oM carts, carnages, Sec. Eex v. Lyon, Eyan & Moody, 150. But if an indictment allege that a bridge was a public carriage bridge, and also for the king's subjects to pass, &c., on fool ; and it appear that it had been used by pas- sengers on horseback and on foot, and not with carriages, the defendant cannot be convicted of any part of the charge. Per Bayley, J., in Eex v. Inhabitants of Lancashire, Lancaster Sum- mer Assizes, 1820, 4 Starkie's Ev. 316. And whenever the allegation is an essential ingredient of the offence charged, or where it goes merely to describe or qualify that which is material, the proof must correspond with it. Hence, writings produced in evidence must not vary &om the statements they are intended to sustain, and very slight discrepancies have been occasionally held fatal in such cages. The strictness, however, with which this principle applies, depends much CH. XII.J Of Material and Immaterial Averments. 835 3. Of material and immaterial averments in civil suits^ A great variety of cases occurs in the books with respect to the necessity of proving averments in pleading. Material averments must be proved. If a variance occurs between a material averment and the proof, the party upon whom the burden lies of establishing such averment will be defeated. On the other hand, immaterial averments need not be proved. It is a general rule, that a variance between the allegation and the proof will not defeat a party, unless it be in respect of matter which, if pleaded, would upou whether the indiotment purports to set out the writing according to its legal effect, or in the very words. In the former case, it will suffice if there be no variance in substance, while in the latter, the prosecutor is held to an accurate recital. But even in the latter instance, a mere literal variance in the spelling of a word, where the word is not changed to another of different mean- ing, will not be fatal. See 10 Petersd. Abr. 608, 509, note, and oases there cited, and post, note 247. Where the indictment was for forging a note, and the note produced had an indorsement upon it, which was likewise forged, the court held the indorsement no part of the instrument ; and, therefore, not necessary to be set out. Commonwealth v. "Ward, 2 Mass. Rep. 397. So where the indictment was for forging a bank bill, and purported to set forth the bill in " words and figures," in which case a strict recital was admitted to be necessary; held, that the number of the bill, and the figures in the margin marking its amount, were not parts of the bill, and the omission to set them out constituted no variance. Commonwealth v. Bailey, 1 Mass. Rep. 62 ; Commonwealth v. Stevens, 1 Mass. Rep. 203, S. P. And it is not necessary in suoh oases to set out the ornamental parts of the bill, as the devices, mottoes, &o. Commonwealth v. Searle, 2 Binn. 332 ; Commonwealth v. Bailey, Commonwealth v. Stevens, supra. The above oases go upon the ground, that it is only necessary to set out so much of the bill as contains the evidence of the contract. If other parts of the biU, however, are set out, the allegations and proofs must agree. The name of the bank, in suoh cases, must be truly set out ; and a variance in this respect will be fatal. Knight v. Mitchell, 2 Const. Rep. 66&. The intention of a party at the time of committing the offence alleged is often an essential Ingredient in it ; and when so, it must be proved. 10 Petersdorfs Abr. 509, note. An indict- ment, however, for perjury, with an intent to defraud A., will be sustained by proof of an intent to defraud A. & B. Veazie's Case, 1 Greenl. 131. So if the allegation is, of an assault upon a female child, with intent to abuse and carnally know her, the defendant may be convicted of th« assault with intent to abuse her, though the jury negative the rest of the intention. Rex v. Dawson, Gor. Holroyd, J., York Summer Ass. 1821, 4 Stark. Ev. 1586. And if a libel be alleged to have been published with intent to bring the administration of justice into contempt, and also to defame particular persons, the defendant may be convicted if either intent is proved. Rex V. Evans, Oar. Bayley, J., Lane. Spr. Ass. 1821, 4 Stark. Bv. 1586. Where words are of the gist of the offence, they must be proved as laid ; and if there be any particular variance between the words proved and those laid, even if laid aa spoken in the third person, and proved to have been spoken in the second, or laid as spoken affirmatively, and proved to have been spoken by way of interrogation, or the like, the defendant will be acquitted. Rex v. Berry, 4 T. R. 217 ; 10 Petersd. Abr. 509, note. Where, however, an indiotment for perjury stated all the evidence charged as perjury, but other statements not altering the sense intervened between the matters set out ; it was held to be no variance, though in the indictment the evidence appeared .to have been given continuously. Rex v. Solomon, Ryan & Mood. 252. In an indiotment for perjury in an answer to a bill in chancery, the bill was described as exhibited against three persons only, A., B. and C. ; and, upon being produced, was found to be against four, A., B., C , and D. ; held, that " if the indiciSient had professed to set forth the title of the bill, suoh a variance would have been fatal, but that the biU was substantially described, and that is sufficient." Rex v. Po)ly the inconsistency of the passage with the other parts of the indictment. The rule in such cases ia, that an inconsistency in material allegations vitiates the indictment, but not so if the e^ire aUegcUion, in which the discrepancy consists, might have been omitted ; for then, upon the maxim, "utile per mulile non viiiatmr" the allegation may be considered as surplusage, and disre- garded. Starkie's Cr. PI. 274, 275. It was the ancient doctrine that no indictment, concluding contra formara stoJuii, could be maintained as an indictment at common law ; but this has long since been exploded ; and now, if an offence be charged as having been committed contrary to the statute, and there is either no such, statute or the offence is not embraced within it, the accused, provided enough is charged, may be convicted on proof of an offence at common law, and the reference to the statute will be treated as surplusage. Respublica v. Newell, 3 Teates, 407, 414 ; Knowles v. The State of Con- necticut, 3 Day's, Rep. 103 ; Commonwealth v. lioxey, 16 Mass. Rep. 385 ; Pennsylvania v. Bell, Addis. Rep. 156 ; 1 Chitty's Cr. Law, 289 ; 1 Saund. 135, n. 3. And the general rule ia, that all allegations which are vJhoUy superfluous need not be established, but may be thrown out of the question altogether, 1, CWtty's.Cr. Law, 557. But if the averment be material— that is, if it be ooaneoted with the charge — it must ba CH. 211.] Of Variances in Civil Suits. 845 5. Of variances in civil suits. Where the action is brought upon a contract, the contract ought to be stated correctly, and proved as laid ; and if any part of the contract proved vary materially from that stated in the pleadings, the whole foun- dation of the action fails, since the contract is entire and indiviGible.(l) If the contract, therefore, for the breach of which the action is brought, was in the alternative at the option of the defendant (as to deliver this or that quantity of goods at one time, and the remainder at another), it ought to be so stated ; for if the declaration states an absolute contract, and the proof is of a contract in the alternative, the plaintiff cannot re- cover, although the defendant may have determined his option.(2) In an proved. 1 Chitty's Cr. Law, 557. Thus, in an indictment for a riot in pulling down a house, the name of the owner is material ; and therefore, where the indictment charged that it was the dwelling-house of A., and it turned out that A. was a, feme covert, held that the conviction was erroneous. The State v. Martin, 3 Murph. 533. See Queen v. Soley, 2 Salk. 595. So, in an indictment for larceny of goods, the owner's name must be proved as alleged ; and where they were laid as the property of H., and turned out to be the property of H. & E., partners, the variance was admitted to be fatal. Commonwealth v. Trimmer, 1 Mass. Eep. 416. In New York, however, it is expressly provided by statute, that, in an indictment for any offence committed upon personal property belonging to several owners or partners, it shall be sufficient to allege such property to belong to any one or more of such partners or owners, without naming aJl. 2 R. S. Y27, § 46. "Whether, if thei name of the owner be not laid with an alius dicius, it is sufficient to prove that he is commonly known by the name alleged, where it appears his name of baptism is different ; quere. State v. France, 1 Tenn. Rep. 434. An indictment for perjury, alleged to have been committed before A., is not sustained by proof of perjury before A. & T. The State v. Mayson, 1 Const. Rep. 200. And allegations which are not impertinent or foreign to the cause must be proved, although a prosecution for the offence charged might be maintained without such allegations. Thus, an indictment for stopping the mail, which alleged a contract between the postmaster-general and the maU carrier, was held not supported without proof of such contract. United States v. Porter, 3 Day's Rep. 283. (So, where the indictment alleges the commission of the crime — arson — ^in a certain ward of a city, the place is thereby rendered material. The People v. Slater, 5 Hill, 401. But, on the trial of an indictment for larceny, it is not necessary to prove that the property was taken from the actual owner ; the crime may be committed by taking it feloniously from a bailee, and the owner may be convicted for stealing his own goods. The People v. WUey, 3 HiU, 194. See, also, Ward v. People, 3 Hill, 395.) (1) 1 T. R. 240 ; 3 T. R. 645. The following are the principal modem cases on this subject : Bristow V. Wright, 2 Doug. 664; Cariisle v. Trears, Cowp. 671; Churchill v. Wilkins, 1 T. R. 447 ; Durston v. Tuthan, cit. 3 Id. 67 ; Littler v. Holland, Id. 590 ; Hockin v. Cooke, 4 Id. 314; Leery v. Goodson, Id. 687 ; White v. Wilson, 2 B. & P. 116; Penny v. Porter, 2 East, 2 ; Brown V. Sayce, 4 Taunt. 320; Pool v. Court, Id. 700 ; Cohen v. Hannam, 5 Id. 101 ; Arnfield v. Bate, 3 M. & S. 173 ; Sequier v. Hunt, 3 Pri. 68; Wildmon v. Glossop, 1 B. & A. 9; Tucker v. Crack- lin, 2 Stark. R. 385 ; Parker v. Palmer, 4 B. & A. 387 ; Strong v. Rule, 3 Bing. 315 ; Hughes v. Parker, 8 M. & W. 244. The following are cases on promissory notes and bills of exchange; — Whitwell V. Bennet, 3 B. & P. S59 ; Gordon v. Austin, 4 T. R. 611 ; Young v. Wright, 1 Camp. 139 ; Jones v. Mars, 2 Id. 305 ; Roche v. Campbell, 3 Id. 247 ; Hodge v. Fillis, Id. 463 ; Hutch- inson V. Piper, 4 Taunt. 810 ; Exon v. Russell, 4 M. & S. 505 ; Mountstephen v. Brooke, IB.* A. 224. (2) Penny y. Porter, 2 East, 2. And see Id. 134 ; Cooke v. Munstone, 1 N. R. 351. 846 The Substance only of the Issue needs be proved. [CH. XII. action against a carrier on a general undertaking to carry safely, proof of a contract to carry safely, fire and robbery excepted, is a variance.(l) (1) Latham t. Butley, 2 B. & C. 20. Note 240. — The doctrine of the text has been almost universally recognized ; and the occa- sional diversity exhibited by the cases, will be found to result mainly from the different views which courts have entertained of its application, rather than from any doubts as to its existence. "That the allegata and probata should correspond, is a rule as sound in principle, as it is well established in precedent. To permit the -plaintiff in an action to recover on evidence materially variant from his allegations, would defeat the purposes of pleading. The defendant could neither be enabled to rebut such proof, nor plead a recovery in bar, in a future action for the same de- mand ; and though the privity and intercourse between the parties, may often enable them to know, without having recourse to pleadings, what is the nature of the claim or defence, yet a de- parture from a rule of general utility cannot be justified, because in particular instances it has no practical effect. But if the parties themselves could be presumed, from their privity, to know the true cause of action, to avaU themselves of a judgment, as a bar of a _ future action for the same cause, they must be able by legal averments to make the identity of the cause of action known to a judicial tribunal, who are strangers to their transactions.'' Query v. Brindlinger, Litt. Sel. Cas. 8t, per Gur. But it is sufficient, in general, if the contract given in evidence agree in substance and legal effect with that stated in the declaration ; and though the proof disclose circumstances beyond what is contained in the declaration, the variance wiU not be regarded, provided the mat- ter omitted do not quahfy or alter in any respect those which are alleged as the foundation of the action. Thus, a declaration for not delivering a quantity of gum Senegal, is sustained by proof of a contract to deliver rough gum Senegal ; It appearing that all gum Senegal on its arrival is called rough. Silver v. Hesseltine, 1 Chitty's Rep. 38. And where, in an action upon a contract of warranty in the sale of a quantity of oil, the declaration alleged that the defendant undertook, that the oil was of a " good and superior quality, to wit, prime quahty winter oil;" and the evi- dence offered was, that the defendant warranted the oil to be prime quality winter oil ; it was held, that there was no variance between the contract as alleged, and the evidence, because the words under the scilicet were to be regarded as the substantial averment. Hastings v. Lowring^ 2 Pick. 214. So where the plaintiSs declared setting forth an exchange of vessels, between them and the defendants, and alleging that the defendants agreed to pay $6,500, as the difference; proof that the agreement was to pay in notes at four, six and eight months, the suit being brought after the notes fell due, was deemed to be no variance. Porter v. Talcott, 1 Cowen's Rep. 359, 380, per Woodworth, J. These qualifications respecting the mode of payment, are mtroduced for the benefit of the purchaser, and during the time to which they relate, the seller must sue on the special contract ; when that time is expired, the money is actually due. Per Woodworth, J., Id. And see Brook V. White, 4 Eos. & Pul. 330, 332, perChambre, J. And where the promise alleged was, to pay certain arrearages, and it turned out in proof that the promise was to pay arrearages, and also what the plaintiff had to pay a certain company ; it was held, there was no material variance, for "proof of a promise beyond what is averred," say the court, "but embraciag that also, cannot prejudice the defendant. It is not setting forth a different promise, but failing to set forth the whole, to the prejudice of the plaintiff only." Alvord v. Smith, 5 Pick. 232, 235. See poit of the text, and the cases there cited; and Henry v. Clellaud, 14 John. Rep. 400, cited post note 247. But the legal effect and identity of the contract must be cautiously kept in view, and any va- riance in this respect, relating to the promise or undertaking upon which the action is predicated, or the consideration thereof, wiU be fatal. Thus, an allegation of a promise to pay absolutely, on the death of J. S., cannot be sustained by proof of a promise to pay on the death of J. S., provided he left the promisor sufficient, or he was able to pay it. Roberts v. Peak, 1 Burr. 325. So, if the declaration allege a promise by the defendant, to sell his taftow to the plaintiff, at four shil- lings per stone, and the proof is, that he promised to sell at that price, but, that if the plaintiff gave more to any one else, he should give the same to the defendant; the variance will not be overlooked. Churchill v. Wilkins, 1 T. R. 447, cited in the text. And a declaration on a note with a proviso or condition, should set forth the condition, or the variance will be fatal. Whita- CH. XII.] Of Variances in Civil Suits. 847 ker V. Smith, 4 Pick. 83. The case of a bond, which undoubtedly may be declared on without setting forth the condition, is different ; for the defendant in such case ia entitled to oyer, both of the bond and the condition ; but there ia no such right in relation to simple contracts, and this shows the necessity of setting out the whole. The defendant ia entitled to know the whole of the contract on which he is sued, in order that he may determine how to defend himself. Id. per Parker, 0. J. And where the declaration waa upon a promise to pay $100, for improvements upon lands, and the promise proved, waa to pay so much, if the promisor obtained a contract for the land from the landlord, the variance was held fatal. Lower v. "Winters, 1 Cowen'a Rep. 263_ So a promise in the alternative wiU not sustain a declaration upon a promise absolutely. Per Hosmer, C. J., in Curley v. Dean, 4 Conn. Rep. 259, 265. See also the eases cited in the text. Thus, where the contract waa alleged as absolute to transport twenty tons, and the one proved was, to tranaport fifteen or twenty tons, the variance was held fatal. Stone v. Knowlton, 3 "Wend. Rep. 374. So where the plaintiif's declaration contained counts upon an indebUatus as. Btimpsit and quantum valebant, for meat, lodging, nursing, &c.-, furnished by the plaintiff for the defendant's infant daughter ; and he proved a contract in the alternative, by which the defendant agreed to bind his deughter to him, or pay so much for boarding, nursing, and clothing her, as her board, &c., were worth; held a fatal variance. WilHams v. Kinnard, 1 Alabama Rep. 196. Where the plaintiff averred a demise for three years, held that such an averment could not be sustained by proof of a lease for one year certain, and two years' further posaeasion on the aame terms, by consent of the landlord. Alexander v. Harris, 4 Cranch, 299. See this case and others cited a»fe. So an allegation that the defendant undertook to transport certain goods to C, at his own risk against all danger, except dangers of the seas, is not supported by proof that the defendant took on himself all risks, except dangers of the seas ; for a liability for the risk of transportation, except that of the seas, is materially different from liability for all risks, with the same exception. Bridge v. Austin, 4 Mass. Rep. 115, And the statement of a general warranty as to the soundness of a horse is not supported by proof of a warranty, except a kick on the leg. Jones v. Cowley, 4 Barn. & Cress. 445. A declaration that certain machines were war- ranted to be good and merchantable, is not sustained by proof that they were warranted to be equal to any in America. Goulding et al. v. Skinner, 1 Pick. 162. A contract to deliver soil cannot be declared on as a contract to deliver soil or breeze, if it appear that soil and breeze are different articles. Clark v. Manstone, 5 Esp. Rep. 239. Nor will a declaration for the sale and delivery of pine timber, be supported by proof of the sale and delivery of spruce timber. Rob- bins V. Otis, 1 Pick. 368. Nor a declaration on a promise to pay money, by proof of a promise to deliver certificates of debenture. Baylies et al. v. Fettyplace et al., 1 Mass. R. 325. So a declaration, on a promise to deliver cloth to the plaintiff, is not supported by evidence of a promise to deliver cloth to him at the defendant's factory. Clark v. Todd, 1 Chip. R. 213. And an allegation of a promise to pay $1,000 in a reasonable time, is essentially different from a prom- ise that if the plaintiffs shall reconvey certain land, the defendant wfll pay them the purchase money, which was $1,100, or so much thereof as he shall have received. Bunnel v. Taintor'a Adm'r, 5 Conn. Rep. 2'?3. Proof of a promise to pay as soon as A. came, will not sustain a declaration upon a promise to pay in March or April. Victoire v. Moulin, 8 Mart. Lou. Rep 400. So a promise to pay the coming week will not support an allegation of a promise to pay when requested. Lawrence v. Barker, 5 "Wend. Rep. 301 ; Query v. BrindUnger, Litt. Sel. Cas. 84. And an allegation that rent was to be paid on demand, is not supported by proof that it was to be paid at the end of the year. Taylor v. Hickman, Litt. Sel. Cas. 434. Nor w01 a. promise to pay on a particular day, sustain an allegation of a promise to pay in a reasonable time. "WU- loughby V. Raymond, 4 Conn. Rep. 130. And proof of a promise to an executor, varies from an allegation of a promise to the testator. Glenn's Ex'rs v. M'CuUough, 2 M'Cord's Rep. 212. So a .promise to a husband and wife jointly, will not sustain an allegation of a promise to the wife before marriage. Bunnel v. Taintor's Adm'r, 5 Conn. Rep. 213. "Where the declaration stated that the defendant was to pay the plaintiff £90, one-half in cash and the other in whiskey and horse flesh, to be between the value of twenty-one pounds and twenty-five pounds ; and the agreement proved was, that the £90 were to be paid one-half in cash and the other in whiskey and horse flesh, to be between the value of twenty and twenty-five pounds ; the variance Was held fatal. Rogers v. Estis, Litt. Sel. Cas. 2. Under a declaration in assumpsit, upon a promise by a consignee or bailiff to render a reasonable account, the plaintiff cannot give in evidence a 848 The Svbstance only of the Issue needs he proved. [CH. XII. contract to account in a special manner ; if the undertaking be special, it must be so laid, or the variance wUl be fatal. Pope et al. v. Barret, 1 Mason, 117. Otherwise, however, it seems, in actions of account. Id. And see Robert v. Andrews, Cro. EUz. 82 ; Godfrey v. Saunders, 3 Wils. 13. In Louisiana, where the petition stated that the plauitLEf sold the defendant one hun- dred barrels of flour, half fine and half superfine, at thirteen doUars per barrel, &c. ; evidence that the defendant purchased 100 barrels of flour of the plaintiffs, which were worth thirteen doUars per barrel, was held sufficient to sustain the allegation. Gilly et al. v. Henry, 8 Mart, liou. Rep. 402. And see Boyd etal. v. Howard, 3 Mart. Lou. Rep. (N. S.) 286 ; S. C, 4 Mart. Lou. Rep. (S. S.) 178, in which the general rale is laid down, that a vendor who alleges a stipulated and certain sum as the price of the sale, may give evidence of the value of the objects sold. Where the plaintiff declared upon a contract, by which he was to have the use and occupation of a clothier's shop, for a period commencing in October, 1818, and ending at the expiration of the season for dressing cloth, to wit, on the 1st of May, 1819 ; and the period proved was, during the season for dressing cloth ; held a fatal variance. Curley v. Dean, 4 Conn. Rep. 259. So the plaintiff having alleged a contract, by which the defendant was to receive all the accounts con- tracted by the plaintiff in a certain business during a specified period, and the proof was that the defendant was to receive the first moneys accruing from the business, and resort to the account for the balance only, the variance was held fatal Id. In actions upon a contract of warranty, though it is usual to allege an express (and formal promise and undertaking in a declaration, it is not necessary that the proof should literally cor- respond with what is set out ; for any affirmation at the time of the sale, intended as a warranty by the affirmant, and relied upon as such by the purchaser, wiU support the allegation. Thus, where the declaration averred that the defendant undertook that the horse he sold to the plain- tiff was quiet, &c. ; held, that proof that the defendant said, at the time of sale, " Ton may depend upon it that the horse is perfectly quiet, &c , win support the averment. Cave v. Cole- man, 3 Mann, k Ryl. 2. And see Chapman v. Murch, 19 John. R. 290 ; Sweet v. Colgate, 20 John. R. 203 ; Bacon v. Brown, 3 Bibb, 35 ; Jackson v. Witherell, 1 Serg. A Rawle, 482 ; Cramer v. Bradshaw, 10 John R. 484 ; Gilchrist v. Mann, 2 Car. Law Repos. 667 ; Erwin v. Maxwell, 2 Murph. 245 ; Roberts v. Morgan, 2 Cowen's Rep. 438. And an allegation that the defendant warranted a horse to be not over seven years old sustained in substance by proof of a warranty that he was seven years old the spring next after the sale. Henry v. Henry, 1 Chip. Rep. 265. Not only must the promise, for the breach of which the action is brought, be truly stated, and proved as alleged, but the entire consideration for the promise must be set out ; and if there be any material variance between the consideration as averred and the proof, it will be fatal. See post, of the text, and the cases there cited; also Brooks v. Lowrie, 1 Nott & M'Cord, 342. Ac- cordingly, where the declaration alleged a contract by the defendant, in consideration of an undertaking by the plaintiff, to build a ship, and the evidence was of a contract to finish a ship partly buUt, and sell it to the defendant, the variance was held fatal. Smith v. Barker, 3 Day's Rep. 312. And where the plaintiff declared on a contract, alleging it as one by which the defen- dant agreed to pay him a specified sum, for half the land taken for a certain road ; and the con- tract proved was, that the defendant was to pay for all the land, the variance was held fatal. Crawford et al. v. Morrell, 8 John. Rep. 253. So, where an agent sold to A. in one lot, and at an entire price, two horses ; one belonging to B., and another to C, warranting both to be sound, it was held that A. could not maintain assumpsit against B., for the unsoundness of the horse belonging to the latter, declaring as upon the sale of one horse ; for the contract concerning the two horses was entire, and the whole consideration for the warranty was not set forth. Symonds V. Oarr, 1 Campb. 361, 362, and vide note a. And a declaration for the price of pine timber, sold and delivered, is not supported by proof of a sale and deliveiy of spruce timber. Robbins v. Otis, 1 Pick. 368, supra. In an action to recover damages for not performing a contract to convey land, a vai-iance respecting the locality of the land, between the consideration of the contract as laid and proved, has been held fatal. Obert v. "Whitehead, 6 Halst. 293. And where the declaration alleged, that in consideration the plaintiff would deliver a certain note to a third person, there to remain until the defendant should pay a note given by the plaintiff to A., the defendant promised the plaintiff to save him harmless, &c. ; and the evidence was, that the plaintiff agreed to deUver the note to a third person, and let it remain till he should return ftom a journey, and that in con- CH. xil] Of Variances in Civil Suits. 849 Where contract stated in action of tort This rule is not confined to actions ex contractu. In an action of tort also, wiiere a contract is necessary to be stated in order to maintain the ground of action as laid in the record, the contract ought to be proved as stated. Thus, in an action against two defendants for deceit, charged in sideration thereof the defendant promised, Sec.; the variance was held fatal. Colt v. Root, It Mass. Rep. 229. And so, where the declaration alleged a promise, that in consideration the plaintiff would indorse a note, A;c. ; and the evidence was of a promise, in consideration of the plaintififs hailing indorsed a note. Bulkley v. Landon, 2 Conn. Eep. 404. And where the con- tract stated in the declaration was alleged to be on a past consideration for the delivery of goods, without mentioning the place of delivery, and in the alternative as to time ; and the contract proved was on an executory consideration to deliver goods at a particular day and place ; the variance was held fatal. Robertson v. Lynch, 18 John. Rep. 451. So, if money paid is alleged to be the consideration of a promise, such allegation is not supported by evidence of payment, after the promise was made. Bender v. Manning, 2 N. H. Rep. 289. And in Lees v. Whitcomb (3 Oarr. & Payne, 289>, it was held, that an agreement by which A. agreed to remain with C. for two years from the date, for the purpose of learning a particular trade, would not support a decla- ration stating the consideration to be that C. " would receive A. into his service.'' In an action against an ecclesiastical society, on a contract relating to the funds of the society, the plaintiff alleged the consideration of the defendant's undertaking to be, the delivering up the fund, and a subscription paper, into the hands and control of th^e society ; and it appeared from the proof) that these acts constituted but a part of the consideration ; held, that the variance was fatal. Rus- sell V. South Britain Society, 9 Conn. Rep. 508. So, the plaintiff having set forth the names of the subscribers to such fund, and averred that they were aU original subscribers ; and it appeared from the proof that five of them were not so, but became subscribers at a subsequent period, the variance was adjudged fatal. Id. And where the plaintiff stated, as part of the consideration of the defendant's undertaking, that he contracted to employ the defendant's son, so long as he should wish, and the proof was of a contract to employ him during the season ; it was held that the variance was fatal. Curley v. Dean, 4 Conn. Rep. 259. If the declaration allege a considerar tion for the promise, additional to the true one, the plaintiff wUl fail on the ground of variance. Stone V, Knowlton, 3 "Wend. Rep. 374. See also, Lansing v. M'KilUp, 3 Cain. Rep. 286. But in Wroe V. Washington et al. (1 Wash. Rep. 35'7), the declaration alleged a promise in consideration of the appellant's having undertaken to rent and furnish a house, and board the defendant ; and the proof was of a promise, in consideration that the appellant would board the defendant merely; and the variance was disregarded. The statement of a frivolous, with a sufficient consideration, will not vitiate. Lowry v. Brooks, 2 M'Oord, 421. So a frivolous consideration may be safely omitted in the declaration, but not a valid one. Brooks v. Lowrie, 1 Nott & M'Cord, 342, supra. Where the declaration averred the consideration for the purchase of a horse to be, that the buyer should give a large price, to wit, £105 ; proof that the buyer was to give 100 guineas, and £10 more if the horse suited him, was held no variance. Cave v. Coleman, 3 Mann. &, Ryl. 2. Either way, say the court, it was a large price, and that is the important part; the words laid under the videlicet may be rejected, and then there is no variance. Further, see the next note, and post, note 241, as to variance respecting written instruments. Also ante, note 237, relative to the doctrine of immaterial averments, in setting out express contracts. With respect to variance between the evidence and bills of particulars, see ante, note 224. (Many of the foregoing cases in which the variance between the allegation and the proof was held fatal, would not be considered at aU material under the present rules of pleading. Code of K. Y., §§ 169, 170. To render the variance material, it must appear to have actually misled the adverse party, to his prejudice, in maintaining his action or defence on the merits. In all other cases, the pleadings may be amended without costs, or the fact may be found according to the evidence. If the allegation of the cause of action or defence fails in its entire scope and mean- ing, it is not deemed a case of variance, but a failure of proof. § 17 1.) Vol. I. 54 850 The Svhstance only of the Issue needs he proved. [CH. xil. the declaration to have been committed by them in a joint sale of their joint property, the Court of King's Bench held, as there was no evidence against one of the defendants, that the action could not be maintained against the other.(l) The joint contract here described, said Lord Ellen- borough, C. J., in delivering the judgment of the court, is the foundation of the joint warranty laid in the declaration, and essential to its legal ex- istence and validity ; and it is a rule of law, that the proof of the contract must correspond with the description of it in all material respects.(2) (1) Weall V. King, 12 East, 452. And see Green v. G-reenbank, 2 Marsh. 485 ; Lopes t. De Tastet, 1 B. & B. 538. See Canter v. Hope, 10 Barb. 180. (1) Note 241. — In an action on the base, alleging that the defendants, being joint proprietorsof a Kne of stages from H. to A., undertook, in consideration, &e., to transport the plaintiff and his baggage from, &c., -vrithin a certain time, and neglected and failed to perform their undertaMng, leaving the baggage behind them on the road ; upon not guill/y pleaded, it was ield, that the plaintiff could not recover, without proving a joint undertaking against all. Walcott v. Oanfield, 3 Conn. Rep. 194. Hosmer, J., deUvering the opinion in this case, after reviewing most of the cases cited in the text, comes to the following conclusion : " that in actions founded on agree- ment, the plaintiff, in every essential particular, must prove the contract as he has alleged it ; and it matters not, whether the breach of the contract resulted from the omission to perform some ax;t, which the defendants ought to perform, or from the improper performance of the act, or from the doing what ought not to be done." The rule, in general, respecting actions of fraud as well as warranty, is, that the contract set out must accord with the one proved upon the trial, or the variance will be fatal. Perry v. Aaron, 1 John. Rep. 129 ; Silver v. Kendriok, 2 N. H. Rep. 160_ If the declaration, however, in such cases, only purports to set forth the contract according to its legal effect, a substantial accordance wiU suffice. Silver v. Kendrick, supra. Where the plain- tiffs, in an action alleging deceit, set forth that the defendants promised to deliver them eight bales of 6te guineas, of the usilal length and breadth, and of the value of $5.50 each, but instead thereof, &c., it was held, that proof of a promise to deUver the specified number of bales, without establishing the contract as to the length, breadth, and value, according to the declaration, would not be sufBcient. SneU v. Moses, 1 John. Rep. 96. But in Cunningham v. Kimball (7 Mass. Rep. 65), it was held, in an action for a false affirmation in the sale of property, that a variance between the contract, as set forth in the declaration, and as proved, was immaterial ; the whole gist of the plaintiff's action being the defendant's fraudulent affirmation. AlUer, if the action be founded upon contract, and the gravamen be the non-performance thereof by the defendant. Id. In an action for injury to a horse, by immoderate and careless driving ; proof that the defendant, on being charged with driving it from London to Chatham instead of to Dartford, according to his undertaking, stated, that in fact he Only drove to Dartford, has been adjudged sufficient to support an allegation that the contract was to drive only to Dartford. "Ware v. Juda, 2 Carr. & Payne, 351. And in this case it was held, that an allegation that the plaintiff lent a horse to the defendant, was supported by proof that what he lent was a mare. In trover, for a promissory note, the declaration alleged it to be for $180, and when produced, it appeared to be for $360, held, a fatal variance. Bissel v. Drake, 19 John. Rep. 66. If the plaintiff in sudi case cannot state the precise amount of the note, he should say it was of great value, to wit, &c., laying the sum under a videlicet. Id. See also Hoffnagle v. Leavitt, '7 Cowen's Rep. 511. And in an ac- tion for fraudulently putting off the bills of a broken bank, where the declaration described the bai as " one ten doUar bank bUl, and ten five dollar bank bUls, aU of Farmer's Sank, in Belcher- iown ;" it was held, that the plaintiff could not recover, without proving that the bills put off were of the denominations specified. "Watson v. Osborne, 8 Conn. Rep. 363. So, it seems, though the specification of the bills be laid under a videlicet. Id. In actions qui tarn upon the statutes against usury, if the plaintiff undertake to set out the usurious contract, ho must prove it precisely as laid, or the variance will be fatal. And where an usurious contract was alleged CH. XII.] Of Variances in Civil Suits. 851 What part of contracts need be stated. It will not be necessary for the plaintiff to state all the several parts of a contract, which consists of distinct and collateral provisions ; but it is sufficient to state so much of the contract as contains the entire considera- tion for the act, and the entire act to be done in virtue of such considera- tion, including the time, manner and other circumstances of its performance. Thus, if there is a provision in the contract to discharge the party from all liability, in case a particular condition is not complied with, it ouglit to be set out and strictly proved : but it is otherwise, where the provision respects only the liquidation of damages on a breach of the contract ; such a provision need not be stated in the pleadings.(l) In an action on the case upon the warranty of a horse, if the plaintiff states truly the whole of the consideration for the promise of the defendant (which in the case referred to, was the redelivery of the horse to the defendant), and then states truly the substantive parts of the warranty, the breach of which he complains of, this will be sufiicient, without averring other parts of the warranty entirely colltiteral and irrelevant to those stated.(2) "Where the contract stated was for the purchase of a certain quantity of goods, '" to wit, eight tons," and the contract proved was for the purchase of " about eight tons," the exact amount not being known at the time of making the contract, but being ascertained before the action was brought ; it was held, that the variance was not material.(3) Joint Gontraots. In all cases of joint contracts, in writing or by parol, or ex quasi con- tractu, and in aU cases of joint obligation, it seems now to be settled, that if one only be sued, he may plead the matter in abatement, but cannot take advantage of it afterwards upon any other plea, or in arrest of judg- to have been made with A- and B. (who were partners) jointly, but the proof Was of a note given by A. alone, the variance was held fatal. Mnagrove q. t. v. Gibbs, 1 Dallas, 216. So where the date of the nsurious contract differed from the one set forth, it was held a fatal variance. Evert q. t. V. Barr, 4 Teates, 99. And the day fi-om which forbearance was to commence is materiall, and must be truly stated. Partridge v. OoateS, 1 Oarr. ft Payne, 534. A variance respecting the time for which the loan was made, is in such cases fatal CWilmot v. Munsou, 4 Day's 'Rep. 114) ; or the amount of the loan, Drake v. "Watson, 4 Day's Rep. 3T. So, in a plea of usury to a bond, where the defendant alleged the usury to consist in including in the bond $183.12 for forbear- ance, and it turned out that a horse valued at $100 made part of the sum of $183.72 ; held, a fatal variance. Smith v. Brush, 8 John. Rep. 84. See notes 247, 240.) (Under the Code, the pleading may be amended on the trial, where the opposite party has not been misled. Coming v. Coming, 2 Selden, 91. Or the trial may proceed, with leave to the party to move for an amendment on such terms as may be just (Gettman v. Ritz, 3 Sand. V34) ; it being a case where the opposite party has not b§en misled. And though there be no amend- ment, the faxjt may be found according to the evidence. § 170. (1) Clarke v. Gray, '6 East, 564, 569. And See Thornton v. Jones, 2 Mardh.'287 ; Fafker\ 'Palmer, 4 B. & A. 387.) (2) Miles V. Sheward, 8 Bast, 7. And'see'CottereU v. Cuff, 4 Tauat. 285 ; Sequier v. Hunt, 8 Pri. 68 ; Handford v. Palmer, 2 B. ft B. 359 ; Blyth v. Bampton, 3 Bing. 472. (3) Gladstone v. Neale, 13 East, 410. And see Crispin v. 'Williamson, 8 Taunt. 107. 852 The Substance only of the Issue needs he proved. [CH. XII. ment, or give it in evidence under tlie general issue. Thus, in an action against the defendant as drawer of a bill of exchange, who pleaded non- assumpsit, and it appeared in evidence at the trial, that the bill was drawn bv the defendant and another jointly ; on a motion to set aside the verdict (which had been found for the plaintiff), upon the ground of this supposed variance, the Court of Exchequer was clearly of opinion, that there was no variance between the bill of exchange proved, and that which was de- clared upon.(l) The same rule holds when the action is brought against one of several partners ; the defendant must plead in abatement, and cannot give the partnership in evidence under the general issue.(2) For- merly, a different rule was adopted, on the ground of a supposed vari- ance.(3) But with respect to the party suing, the rule is still the same ; namely, that if an action of assumpsit is brought by one only of several parties to a contract, who ought to join, the defendant may take advan- tage of it upon the general issue of non-assumpsit. (4) (1) Evans v. Lewis, cit. 1 Wms. Saund. 291 d ; Germain v. Frederick, cit. Id. ; Bees v. Abbott, Cowp. 832 ; Powell v. layton, 2 N. E. 365. (2) Rice V. State, 5 Burr. 2611 ; Abbott t. Smith, 2 W. Bl. 947. (3) Boson V. Sandford, 2 Salk. 440. (4) Legliae v. Champante, 2 Str. 820 ; Graham v. Robertson, 2 T. R. 282 ; Teed v. Elworthy^ 14 East, 210 ; 1 Wms. Saund. 291 f. Note 242. — Abbott, C. J., in Snellgrove v. Hunt (1 Chitty's Rep. Vl, 15), commenting on the remarks of Sergeant 'WUliams (1 Saund. 291 g, note 2), thus concisely gives the reason of the dis- tinction pointed out in the text : " The plaiatiflf knows, or ought to know, who are his partners in a transaction — ^but he may not be able to ascertain how many persons are liable to be jointly sued ; consequently the omission of a party, who ought to have been made a co-plaintiff, is a ground of nonsuit; but the omission to make a party a defendant can only be taken advantage of by plea in abatement." And this doctrine wUl be found recognized and sustained by all the cases. Dob v. HaJsey, 16 John. Rep. 34 ; Graham's Pr. 62 ; Bird v. Pierpoint, 1 John. Rep. 118, 122 ; Tom v. Goodrich, 2 John. Rep. 213 ; Foster v. Hooper, 2 Mass. Rep. 512 ; Ziele v. Camp- bell's Bx'rs, 2 John. Cas. 382 ; Bradley v. Camp, Ku-by's Rep. '71 ; Robinson v. Fisher, 3 Cain. Rep. 99 ; Barstow v. Fossett, 11 Mass. Rep. 250 ; Ruggles v. Patten, 8 Mass. Rep. 480 ; Brown V. Belches, 1 Wash. Rep. 9 ; Robertsou v. Smith, 18 John. Rep. 459 ; Wilson V.Wallace, 8 Serg. & Bawle, 53. If the defendant, however, has promised to pay each of several partners his specific proportion of their debt, he cannot, in an action by one of them for his proportion, object to the non-joinder of the others. Bunn v. Morris, 3 Cain. Rep. 54. So if he has settled vrith one, the cause of action is severed, and he shall answer the rest. Baker v. JeweU, 6 Mass. Rep. 460. See, also, Austin v. Walsh, 2 Mass. Rep. 401. In North Carolina, where the assignees of a bankrupt partner bring a suit for a partnership demand, and there is no plea in abatement, they may recover a moiety. Barclay's Assignees v. Carson, 2 Hay w. 243. In an action by executors, whether ex conircKlu or ex delicto, if all the executors named in the wiU do not join, the defendant should crave oyer of the probate, and plead the non-joinder in abatement ; ho cannot take advan. tage of it in any other way. Graham's Pr. 62, 63 ; 1 Saund. 291 g, note 4; Archb. PI. 61. In jiflsumpsit, upon a policy of insurance, if the plaintiff aver an individual interest in the property insured, he wiU not be permitted to give in' evidence u, joint interest with others; nor wUl an averment of an interest with others be supported by proof of a sole interest. Graves v. The "Boston Mar. Ins. Co., 2 Cranoh, 419 ; Catlett v. Paoiflo Ins. Co., 1 Paine's Rep. 594. And whore a cargo was insured for A., " for himself and for others concerned," and it appeared that A.'s in- terest was fuUy insured by a prior policy ; held, that A. could not recover jointly with the others nor for them in the manner stated in his declaration. He should have brought the action ex- CH. XII.] Of Variances in Civil Suits. 853 Joint torts. A distinction, however, has been made, in this respect, between actions founded on contract, and actions of tort ; and, in the latter case, if one only of several persons, who ought to join, bring the action, the defendant cannot avail himself of the variance under the general issue, but must plead it in abatement.(l) There is a distinction also between these forms of action, with respect to the party sued. For if several persons jointly commit a tort, the plaintiff has his election to sue all or any number of the parties, a tort being in its nature the separate act of each individual ; and, therefore, in actions ex delicto against one only (such as trover, tres- pass, case for malfeasance, and the like), for a tort committed by several, the defendant cannot plead such matter in abatement or in bar, nor give it in evidence on the general issue.(2) pressly as agent, stating the interest of the others ; or it should have been brought in their names^ as upon a policy made for their benefit by their agent ; accordingly, A. was nonsuited at the trial upon the general issue pleaded. Gardner v. The Bedford Ins. Co., 17 Mass. Rep. 613. In debt on bond, where the bond is joint, all the obligors should be sued ; but an omission in this respect cannot be taken advantage of as a ground of nonsuit on the trial ; it should be pleaded in abatement ; or, if it appear on the face of the pleadings of the plaintiff that there is another person living, who execwted the hand with (he defendant jointVy, it is good ground for arrest- ing the judgment. South v. Tanner, 2 Taunt. 254 ; 1 Saund. 281 b, note 4 ; '■ — v. Kenon's Adm'rs, 1 Hayw. 216. It seems that, in such case, if no plea in abatement be interposed,' the court, after verdict, wUl presume in favor of the judgment, that the person omitted is dead. See marginal note to "Winslow v. The Commonwealth, 2 Hen. & Munf. 459. And see, also, 1 Saund. 291 b, c, note 4. In 1 Saund. 291 e, Sergeant WUliams says, that if an action be brought against two of three' joint and several obligors, the defendant can only avail himself of the omission by plea in abate- ment. But, in Leftwich v. Berkley (1 Hen. & Munf. 62), it was held, that an error in this respect^ if it appear on the record, is a ground for reversing the judgment, though it was not pleaded in abatement. (Where the plaintiff sues several defendants as makers of a joint and several promissory note, he must prove the contract as alleged ; and he will fail, if it appears that only two of the defend- ants executed the note, and that the other defendant signed the note subsequently, without the knowledge or consent of the others. Gardner v. Walsh, 22 Bug. Law & Eq. 162 ; ChappeU v. Spencer, 23 Barb. 584; Mott v. Petrie, 15 Wend. 317.) (1) Dockwray V. Dickinson, Skin. 640; Leglise v. Champante, ut suprw; Addison v. G.verend, 6 T. R. 766 ; Sedgworth v. Overend, 7 Id. 279 ; Bloxam v. Hubbard, 5 E&st, 420. (2) Mitchell v. Tarbutt, 5 T. E. 21. Note 243. — The same rule, stated in the next preceding note, with^ respect to acti'ons ex con- ffruM, applies where the action is founded upon matter ra qwm controjAv, ; and hence, if an action be brought against one only, of several persons, upon a matter founded in contract, though the 'orm of the action be case for mal-feasance, or non-feasance, the defendant can avail himself of the non-joinder by plea in abatement, and in that way only. 1 Saund. 291 d, note 4 ; Graham's Pr. 63. But if several persons jointly commit a tort, the plaintiff has his election to sue all, or any number of the parties, because a tort is, in its nature, the separate act of each individual ; • and, therefore, in actions ex delicto, such as trespass, trover, case for mal-feasance, or the like, . against one only, for a tort committed by several, he cannot plead it in abatement, or give it in evidence on the trial. For a plea in abatement can only be in those oases where, regularly, all the parties ought to be joined, and not where they may be joined or not, at pleasure. 1 Saund. 291 d, note 4. And see Wright v. Cooper, 1 TyL Rep. 425; Rose v. OUver, 2 John. Rep. 365.. Lansing V, Montgomery, 2 Id. 382; Bishop v. Ely, 9 Id. 294; Low v. Mumford, 14 Id". 426;; 854 The Substance only of the Issue needs he proved. [CH. XEI. Proof of time. It will not be necessary to prove the time precisely as laid in the plead- ings, unless that particular time is material. Thus, where a declaration stated that the defendant on such a day made his promissory note, proof that he made it on a different day would be sufficient. So in an action for assault, battery, taking of goods, &c., where the defendant pleads the general issue, the plaintiff will not be confiDed to the day stated in the declaration, but may prove the assault, &c., on any other day before the commencement of the action.(l) If, however, the defendant justifies by son assault on the same day, and the plaintiff traverses the cause of justifi- cation, and at the trial the defendant proves the trespass on the same day, there the plaintiff cannot give evidence of an assault on another day.(2) And though the defendant should prove the assault of the plaintiff on Knox T. Work, 1 Browne's Rep, 101, 103 ; Animonett v. Harris, 1 Hen. &. Munf. 488 ; "Wilkes V. Jackson, 2 Id. 355 ; Livingston v. Bishop, 1 John. Eep. 290, S. P. There is, a distinction, however, between mere personal actions of tort and such actions where they concern real prop. erty. Therefore, if one tenant in common only, be sued in trespass, trover, or case, for anythiag respecting the land held, in common, he may avaU himself of the non-joinder ; hut he can only do this by plea in abateijaent. 1 Saund. 291 a, note 4. See, also. Converse v. Symmes, 10 Masa- Hep. 3M. And in Low v. Mumford (14 John. Eep. 426), it is said, that in actions for torts re- lating to lands of the defendants, there seems to be ground for this further distinction, viz : be? tween nuisances arising from acts of mal-feasance and those which arise from mere omission or non-feasance. " The case of the Abbot of Stratford (T Hen. IT, 8), was that of a nuisanoei arising from a neglect of duty in not repairing a wall, which was, by law, enjoined on the pro- prietor or proprietors of the land, on which the wall stood. The gist of the action, therefore' was, that the defendant was such proprietor, and had neglected a duty incident to his title. The title to the land on which the nuisance existed, was, therefore, directly iu question ; for if the abbot was not the owner of the land, he was not liable for the neglect, nor liable for the nuisance." Piatt, J., who delivered the opinion of the court, then proceeds to show that the principal case was. one of naked mal-feasance, and, therefore, that inasmuch as it was perfectly immaterial whether the defendants owned the land or not, the plaintiff had a right to sue all, or any of the parties who were guilty of the tortious act. He concludes that " unless the title comes in question, there is no difference, in this respect, in actions arising ex delicto, between, actions merely personal and those which concern the realty." As to plaintiffs in an action arising ex delicio, the doctrine of the text has been uniformly re- cognized ; one joint owner of a chattel ought, indeed, to join his co-proprietors in an action of trover or trespass for taking or converting it; but if he do not, the defendant can only avail him- self of the irregularity, by pleading it in abatement ; he cannot show the omission on the trial, to defeat the action, hut may prove it, to prevent the plaintiff from recovering more than his aliquot share or interest. Wheelwright v. Depeyster, X John. Eep. 471, 486. So, where there are several tenants in common, and aU. do not join in trespass quare clauswm fregit, the same rule pre- vails. Brotherson v. Hodges, 6 John. Eep. 108 ; Austin v. HaU, 13 Id. 286 ; Bradigh v. Schenck, 8 Id, 151 ;, Decker v. Livingston, 15 Id. 419 ; Thompson v. Hoskins, 11 Mass. Eep. 419. la South Carolina, it has been held that if one joint tenant, or tenant in common, sues for a whole tract of land, he may have his verdict for any portion of it to which he shows hunself entitled,. M'Padden v. Hayley, 2 Bay, 457 ; Perry v. Walker, Id. 461. (1) Co. Lit. 182 a, b ; 2 EoE. Ab. 681, tit. Verdict N ; Com. Dig. tit. Pleader S 12. Lester v. Jewett, 1 Kernan R. 460 ; Lyon v. Clark, 4 Selden, 148 : Potter v. Thompson, 22 Barb. 81 ; The People v. Eyder, 2 Kernan, 439. (2) Downes v. Skrymsher, BrownL 233 j S. 0., 2 Roll. Ab. GB1, 1. 30. CH. XII.] Of Variances in Civil Suits. 855 auother day, yet the plaintiff, after Having made sucli a traverse, cannot prove another assault on a different day.(l) (1) 2 RoU. Ab. 680, tit. Evidence 0, art. 3, Thornton v. Lyster, Cro. Oar. 514, contra (Jones, J., doubting). See 2 Saund. 5, n. 3. Note 244. — (The order in which two events have occurred is frequently material in the state- ment of a cause of action or defence. Martin v. Kanouse, 2 Abb. Pr. 331 ; Brown v. Harmon, 21 Barb. 610.) But in general, the precise day on which an alleged fact took place is not mate- rial, and need not be proved precisely as laid. Stout v. Rassel, 2 Teates, 834; Cheetham v. Lewis, 3 John. Rep. 42, 43 ; Tiffany v. Drigga, 13 John. Rep. 253 ; Gould's PI. 89 ; Dunlap's Pr. 281 ; Perry v, Botsford,, 5 Pick. 189. This extends to all actions, whether they arise ex con- tractu or ex delicto (G-ould's PL 90); and as the plaintiff is not confined usually to the time stated in the declaration, so neither is the defendant, when the time on his part is immaterial, confined to that which is, laid in his, plea: and the same rule obtains throughout the subsequent plead- ings. Id. An exception is, where the day or time alleged is descriptive of a written instrument, in which case the authorities seem agreed, that the evidence must correspond with the allegations, or the varianoe.wiU be, fatal. Gould's PI. 91, 99. And^see ante, note 2i1, where a, number of cases will be found illustrative of this doctrine. And though an unwritten contract has in strictness no date, and consequently the time of making it is not as such material, yet, if time enters into the terms of a contract, or is involved in any of its essential parts, it must be proved as alleged. Hence, in an action on the statute of usury, in which the plaintiff stated a corrupt agreement made on the 21st of December, 1174, for forbear- ance from that time to the 23d of December, 1116, it was held that proof of an agreement made on the 23d of December, 1114, for forbearance for two yeara, did not support the declaration. Gould's PI. 90, 91 ; Carlisle v. Trears, Cowp. 611 ; Harris v. Hudson, 4 Bsp. Rep. 152. See also Partridge v. Ooates, 1 Carr. & Payne, 534, cited onfe, note 241, p.. 851, in connection with other cases sustaining the same principle. These authorities do not go upon the ground that the day upon which the contract was made is material, but upon the ground that the time offorbea/ramce, being necessary to ascertain the nature of the transaction, is material ; and therefore a mis- statement of such time, either with respect to, its commencement, termination, or extent, is so far a variance from the legal identity of the contract, apd fatal. See notes 240, 241. Sometimes the day of performing a contract or covenant becomes material ; and when so, it must be proved as alleged. Thus, where a declaration set forth articles of agreement, by which the plaintiff covenanted to convey land to the, defendant ; for which the defendant was to pay a certain sum on the 21th of May, 1812, the residue to be paid on the 1st of May, 1813 ; and on the first paymentbeing made, the plaintiff was tp deliver a deed, of conveyance ; and then averred, that-fe, plamtif did deliver a deed on the 21th of Hay, 1812, which the defendant then and there accepted; but the defendant, although he made the first payment on the 21th of May, 1812, fiaaledin paying the residue on the 1st of May, 1813,; held (Duncan, J., dissenting), that the time of making the conveyance was material, and therefore, that under the declaration, evi- d^nce of a, deed, executed and deUvered to the defendant on the M of May, 1813, was inadmis- sible, although the plaintiff offered to prove by parol testimony, that such deed was accepted by the defendant and recorded at his instance. Jordan v. Cooper et al., 3 Serg. & Rawle, 564. It the, plaintiff has not performed at the day, his allegation should conform to the fact ; when the contract has been changed, and the time of performance enlarged, he must declare accordingly, averring performance within the time fixed by the subsequent agreement ; but if, instead thereof, he declare upon the original agreement, and allege performance at the day, he will fail on the ground of variance. This doctrine has been recognized in several cases, and all of them obvi- ously proceed upon the assumption that the time of perform,^nce is material. Phillips et al. v. Rose, 8 John. Rep. 392 ; Baldwin v. Munn, 2 Tyend. Rep. 399 ; Freeman v. Adams, 9 John. Rep. 115 ; Little v. Holland, 3 T. R. 590 ; Brown v. Goodwin, Id., note; Hasbrouck v. Tappan, 15 John. Rep. 204 ; JeweU v. Schroeppel, 4 Cowen's Rep. 566. And the time alleged may be rendered material by the state of the pleadings ; thus, in an action for negligence in protesting a 856 The Substance only of the Issue needs he proved. [CH. Sir. note, where the declaration averred a demand and notice on the 3d day of August, which was the right day ; and on the trial, the plaintiff sought to charge the defendant on the ground of demand, &c., having been made on the 2d day of August, which heing the day before the last day of grace, was inoperative ; held that the time was material, and that the plaintiff could not sustain his action by proof so variant from his allegations. " Though in personal actions gene- rally," say the court, "the day is immaterial, it may nevertheless be rendered material by the pleadings. And such is the case here ; the declaration gave no notice that the neghgence complained of referred to the day of giving notice. The defendant could not come prepared to repel that which the plaintiff averred ; yet this he must do, if, upon the proof offered, the plain- tiff could recover. House v. Young, 1 Hamm. Rep. 504. So where a declaration on a bUl of exchange, by the indorsees against the acceptor, alleged that the biH was indorsed to the plain- tiffs as the surviving assignees of A. B. after his bankruptcy ; a witness on the trial proved the handwriting of the drawer, the acceptance and indorsement, and the commission of bankrupt, with the proceedings thereon, were put in. Lord Tenterden, C. J. : "If you had declared gene- rally in the names of the plaintiffs, the possession of the bills by them would have done ; but here you state especially that they were indorsed after the bankraptcy to them, as surviving- assignees, and you have given no evidence of either of those circumstances." Hutchinson, counsel for the plaintiff, remarked that the hUls were dated after the bankruptcy; LordT. : "That alters the case, but you must still show the plaintiffs to be surviving assignees, and that the bills were indorsed to them as such." Bemasconi v. The Duke of Argyle, 3 Carr. & Payne, 29. AncI wherever the priority of facts in point of time becomes material, they must be proved in their order as laid. See cmte, note 235. In trespass, the day laid in the declaration is seldom material. See Charles v. Delpux, 2 Browne's Rep. 319. Originally, every declaration in trespass seems to have been confined to one single act of trespass. "When the injury was of a kind that could be continued without intermis- sion from time to time, the plaintiff was permitted to declare with a coniinuando, and the whole was considered as one trespass. In more modem times, in order to save the trouble and expense of a distinct writ or count for every different act, the plaintiff is permitted to declare for a trespass committed on divers days and times between one day and another; and such a declaration is considered as if it contained a distuict count for every different trespass. But as this is for the advantage and ease of the plaintiff, he is not obliged to avail himself of the privilege, and may stm consider his declaration as containing one count only, and as confined to a single trespass ; in which case the time becomes immaterial. As it would give the plaintiff an undue advantage, if he could avail himself of the declaration in both those modes, and might operate as a surprise on the defendant, the plaintiff must make his election before he begins to introduce his evidence. Pierce v. Pickens, 16 Mass. Rep. 470, per Jackson, J. Accordingly, in trespass qaare dausum fregit alleged to have been committed, diversis diebws et viciius, it was held, that if the plaintiff gave evidence of one or more acts of trespass within the days specified, he shall not be permitted to prove an act done at any other time ; but if he choose, he may waive his right to prove any act within the days mentioned in his declaration, and prove one done at any time before the com- mencement of the action, and within the time prescribed by the Statute of Limitations, Pierce v. Pickens, supra, 1 Saund. 24 a, note 1; Gould's PI. 106, lOT. And where the trespass la laid with a contimuando, according to the ancient mode, the same rule prevails. 1 Saund. 24 a, note 1 ; Haak v. Breidenbach, 3 Serg. & Rawle, 206. But if the plaintiff travels out of the coniinuandot he must select one trespass, and rest upon that. Joralimon v. Pierpont, Anth. N. P. 42, per Van Ness, J. And see note a; also Gould's PI. 106, 10 '7. There are many acts of trespass which, when executed, cannot be done again, but terminate upon the commission of them, and therefore cannot be continued; as where a man cuts down trees, or kills horses, &c,, or takes away goods. In these, and similar cases, if the trespasses were repeated, they cannot be laid with a contin'uando, but must be declared on as done, divasis diehus ei vicibus, between such and such a time. If the former mode is adopted, the plaintiff will not be permitted to give evidence of more than one act of trespass. He is not, however, confined to the precise time laid, but may prove a trespass committed at any time before the commencement of the suit. 1 Saund. 24 a, note 1 ; Sanders v. Palmer, 1 M'Cord, 165, 167. If a declaration in trespass allege an injury to have been committed on the same day upon a horse and cow, proof that a trespass was committed on the horse in 1817, and on the cow in CH. XII.] Of Variances in Civil Suits. 857 Of place. The same certainty of description, as to the place or parish, is not so necessary in transitory as in local actions. In an action for non-residence, where the parish was described as St. Ethelburgh, and proved to be St, Ethelburga, it was held, that the variance was material.(l) So, in an 1820, will not support the declaration. Sanders v. Palmer, 1 M'Cord, supra. Further in rela- tion to trespass, see post, Yol. Ill, of the text. In ejectment, the averment of title is so far material, that it must be laid at or before the time when it actually accrued. And if it appear to have accrued subsequent to the day alleged, the variance will be fatal ; but not, if it appear to have accrued at any prior period. Siglar v. Tan Eiper, 10 Wend. Eep. 414, 411 ; Van Alen v. Rogers, 1 John. Oas. 281. See also Bailey v. Fairplay, 6 Binney, 454; Noakes v. Shaw, Cam. & Nor. 451 ; Brown v. Lutterloh, Id. 425. (1) WUson V. GUbert, 2 B. & P. 281. Note 245. — The allegation of a place is either nierely formal or it is descriptive ; where it is merely formal, proof is said to be unnecessary, and even on indictments upon criminal chargesi and in actions for local offences, it is sufBcient to prove the offence to have been committed within the county. 4 Startle's Ev. 1570. And see note 249. But wherever the allegation of place is descriptive, the proof must correspond with the aver, ment; thus, in an action against a carrier, if the contract alleged be to carry from A. to 0., a va- riance as to the termini is material. Tucker v. Cracklin, 2 Starkie's Rep. 385. See also Lopes v. De Tastet, 1 Brod. & Bing. 538. And where the declaration laid a promise to pay at A., and the evidence was of a promise to pay at B., the variance was held fatal. Umbehocker v. Russell, 2 Teates, 339. And see ante, notes 240, 241. But in the case of Frith v. Gray (4 T. E. 561, n.), cited in the text, in an action for not procuring the plaintiff a booth at a horse race, to be run on Bamet common, in the county of Middlesex, where it was proved that the whole of Bamet com- mon was in the county of Hertford ; Lord Mansfield and the rest of the court, on a motion for a new trial, upon the ground of variance, held, that as it was perfectly immaterial whether Barnet common was in Middlesex or not, those words might be rejected as surplusage. Where, in a declaration upon an instrument in writing, no venue was stated in the body of the declaration, but only in the margin, and no place was alleged where the instrument was exe- cuted, held not a variance, though the instrument produced in evidence bore date at a different place from that in which the venue was laid. Alder v. Griner, 13 John. Rep. 449. But the court say in this case, that had the declaration alleged the instrument as having been made at the place where the venue was laid, they would probably have been bound by authority to have de- cided otherwise. See post, note 247. An action for a nuisance to the plaintiff's real property, whether corporeal or incorporeal, is local, and the action must be brought in the county where the property is situate. Mersey and Irwell Nav. Co. v. Douglass, 2 East, 497, cited in the text. But it is not necessary to describe the precise local situation, either of the property injured, or of the gravamen. Id. And unless a precise local situation be given, the place mentioned will be ascribed to venue, and not regarded as descriptive. Id. If, however, in such case a precise local description be given, it must be proved as laid, and a variance will be fatal. See Shaw v. Wrig- ley, cited arguendo, 2 East, 500 ; 4 Starkie's Ev. 1574. Where the nuisance was alleged to con. sist in obstructing the waters of D. creek, and the evidence was of obstructions in the water near the mouth of D. creek, the variance was held fatal. Punk v. Arnold, 3 Teates, 428. So, in trespass, if the close is described, the plaintiff will be held to proof of injury within the descrip- tion, Thus, where the allegation was that the defendants broke, &c., the plaintiff's mill lot, and destroyed their mill dam extending across Agawam river, &c. ; and on the trial, it appeared that the mill lot and mill stream were on the north side of the river, the dam extending across; the plaintiffs offered to prove that the defendants pulled up the dam on the south side of the river and that one of them, who did not cross the river, stood on the mill lot, giving diiections to the others while they were engaged ; to this evidence, as it related to the destruction of the dam south of the thread of the river, the defendants objected, because it was not within the descrip- tion contained in the declaration. The evidence was rejected, and the jury gave their verdict for 858 The Substance only of the Issue needs be proved. [CH. xil. action of ejectment, where the premises were described as situate in the united parishes of A. and B., but were proved to be in the parish of A., and a trespass committed on the nortli side of the river ; held, that the decision of the judge at the trial, excluding the evidence, was correct. White v. Mosely, 5 Pick. 230. "Where the premises were described as abutting on the close of the defendant, and there were three defendants. A., H- and C, it appearing that the premises abutted on the close of A., but not of the other defendants, held, that this was ambiguity merely, and not a variance. W'alford v. Anthony, 8 Bing. 15- Under the 6th section of the Patent Law of February 21st, 1193, ch. 156 (2 Bior. 348), the de- fendant pleaded the general issue, and gave notice that he would prove, on the trial, that the machine (for using which vrithout license the suit was brought) had been used previous to the alleged invention of the plaintiff, at several places which were specified in the notice, " and also at sundry other places hi Pennsylvania, Maryland, and elsewhere in the United States." The defendant having given evidence as to some of the places specified, held, that evideno eas to other places not specified was admissible ; but that the court possess the power which wiU be exercised, to prevent the plaintifif from being injured by surprise. Evans v. Baton, 3 Wheat. 454. Where It is doubtful whether the allegation pf place be merely formal, or whether it be de- scriptive, the allegation will be referred to venue, rather than to description. See Jeffries v. Dun- comb, cited in the text ; 4 Starkie's Bv. 1510. And where, the place of doing an act is precisely alleged, if the description be whotty immaterial, it may be rejected as surplusage. 4 Starkie's Ev. IStl. Thus, in an action for running down the plaintiff's boat in the Thames, near the Half- way Reach, proof that it was done in the HalfWay Reach is sufficient, the place being entirely immaterial. Drewry v. Twiss, 4: T. R. 558i cited m the text. Proof that the place is usually known by the name or description set forth in the declaration, is sufBcient ; as where, in an ac- tion for a nuisance to the plaintiff's house, "at Sheerness, in the county of Kent," it was proved that the house was situated in the adjacent parish of Minster, but that both places were usually known by the name of Sheerness. Burbridge v. Jakes, IBos.&Pull. 225. And where the prem- ises were described as in, the parish of Westbury, it appearing that there were two parishes by that name (Westbury on Trym, and the other Westbury on Severn), it was held no variance. Doe V. Harris, 5Maule&Selw. 326. In a penal action on the statute 3 H. Till, ch. 11, §2, against Dr. Leigh, for practicing physic in the parish of St. George's intjifi Bast, wfthin seven miles of the city of Loudon, it apeared that the name of the parish was St. George's, in the county of Middle- sex, and Lee, Oh. J., held it was weE enough, for it was more generally known by the name of St. George's in the East, than by the name of St. George's in the county of Middlesex. Cited by Best, Serg't, a/r^z^ndp, 3 Taunt. 128. And where the plamtifi' sued qui tarn, alleging a loss at the game of rouge et noir, at the parish of St» James, in the county of Middlesex ; held sufficient in error, although in, Middlesex tljere are the parishes of St. James, Clerkenwell, and St. James in the liberty of Westminster. Taylori v. Williams, 3 Bing. 449. Tlie latter parish, it seems, was sometimes called St. James. But in trespass for breaking and entering a house, where the premises were laid in the parish of Clerkenwell | it was proved that Clerkenwell consisted of two parishes, the one known by the name of St. John, the other by the name of St. James, and the whole was generally known by the name of Clerkenwell ; the description was held insufficient. Taylor v. Homan, 1, Moore, 161. In an action for an excessive distress, the premises were laid to be in the parish of St. George th& Martyr, aiid were proved to be in the parish of St. George, Bloomsbury; held an improper description. Harris v. Cooke, 2 Moore, 581 ; S. 0., 2 Taunt. 539. Per Our. : " The parish, should have, been described by its Itnown apd popular, and not by its general d,esoription., St. George, Bloomsbury, was dedicated to George the First, and St. George the Martyr is quite a distmct, parish." Id. And see further, Taylor v. Brooke, 3 Maule & Selw. 169. Where the deqlaration, despribed premises for wliioh rent was claimed, as situate in the parish of B. and M. ;, and the deed produced described the premises as situated in two distinct parishes, the, one B, and the, otljer M^. ; held, that the variance was fatal. Morgan v. Edwards, 6 Taunt. 394. In an action V> tri7 a rigW of way, it, was alleged to be from a certain highway loading froin th^ parish of L, to B., and, ^e highway turned out to be at that part within the parish J hell! no, variance. Pljilllps v. Davies, Z Ajjst. 612. OH. xn.] Of Yarianiies. m Civil Suitsi 859 tlie two parishea were united only for the single purpose of maintaining tlie poor, (1) the variance was thought to be material. So ajgo in a case where the premises were d^cribed as being in the parish of St; George the Martyr, Bloomsbury, and were proved to be in the parish of St, George, Bloomsbury, the variance was held to be fatal.(2) In these and similar cases, the variance might now be corrected, by amending the record. Statement of prescriptive right. The rule above laid down with respect to contracts applies equally to the case of a prescription : a prescriptive right is one entire thing, and,, when put in issue, must be proved, as stated.(3): It ought to be proved, therefore, to the full extent to which it is claimed. Thug, in replevin, if the defendant avow taking the cattle as damage-feasant, and the plaintiff plead in bar a right of common, and aver that the cattle were levant and couchant, on which averment issue is joined, proof only for part of the cattle will not support the averment, for the issue is upon the whole.(4) But though the party must prove a prescriptive right commensurate with the right claimed, he will not be precluded from recovering because he proves a more ample right than what he claims.. Evidence of a right, of common for sheep and cows, will support a plea prescribing for common, only for sheep.(5) A distinction is to be made between the case of a. prescriptive right of common alleged in bar, on which issue is taken, and a possessory right of common claimed in an action of tort for disturbance of the right, In the latter case it is sufficient to prove the same ground of action as is laid in the declaration, although not to the extent there stated.(6) If the allega- tion is, that the plaintiff was entitled to the right of common in respect of a certain quantity of land, and the proof is in respect of a part only of that land, it will be sufficient ;(7) so, if it is claimed in respect of a mes- suage and a certain number of acres of land, and proved to be in respect (1) Goodtitle d. Pensent v. Lammiman, ? Camp. aW,. (.2) Harris v. Cook, 8 Taunt. 539. And. see Guest v^ flaumontj 3. Camp., 235 ;, 6 Eafit, 35,2, The following are instances, in which variances, in the description, of p,afishBS,,fe!.,, were, hel^ to.h^ imjjiaterjal: — Goodtitle d.. Jreniridge v., /Walter,, 4 Xaupfc, 6JJ.; Pqad". Tollet.v. Salter; 1.3 Bast^j 9i E. v., Glossop, i B.. & A. 616; Tajrloi; v. Hooman, 1 B., Jd;oQi;e,, 161 ; Kirtlandv- ?oimaaft. 1. Tawit. 510. (3.), Swra, p. 831. (4) Sloper v. Allen,. 2 BoU. Ab. 1 0,6, , tit. Trial, a. 41,. eit. B. ¥. P. 299 ; Gray's, Case, 5, Rep. T,9 ; Down's Case, 4 Id. 29 b ; Eogera v. Allep,, I Camp. 313. See, Brook, v. ViJlett, 2 B-, ?,1, 225:! Bowen v. Jenkin, 6 A- & B. 911 ; Snpra, p. 8^9. (5) Bushwood v. Bond, Cro El. '722;, Tewkesburyr (Bsjliffs,, &e.), y. Bricknell,, 1 Tanpt;, 1^?^ West V. Andrews;^ 5 B. & A.- 328., (6) See by Coleridge, J., in Bailey v. Appleyard, 8 A. & E. 16'?. And see Dimcaia Y^ Louph, 6 Q. B. 904, 914 ; Higham v. Rabett, 6 N. C. 622. (7) Eardley v. Tutnook, Orp. Ssfi.. 629 ; S. C, faJimerj^. 269. 860 The Svhstance only of the Issue Tieeds he proved. [CH. Xll. only of land.(l) The proof, in these cases, is not of a different allegation, but of the same allegation in part ; and that is sufficient.(2) But the right proved, thought it may be less extensive than that aL leged, must be of the same nature with it and included in it. Thus, s claim of a right of way on foot, and also to lead and carry away manure, is not supported by proof of a right of way on foot, and for horses, oxen, cattle and sheep ; as the term " lead " implies drawing in a carriage.(3) Rule of court as to amendment of variances. Many variances between the prescriptive right claimed and the right proved, have been remedied by the following rule : Hil., 4 Wm. TV, {4) " "When, in an action of trespass quare clausum /regit, the defendant pleads a right of way with carriages, and cattle, and on foot, in the same plea, and issue is taken thereon, the plea shall be taken distributively ; and if a right of way with cattle or on foot only shall be found by the jury, a verdict shall pass for the defendant in respect of such, of the trespasses proved as shall be justified by the right of way so found, and for the plaintiff in respect of such of the trespasses as shall not be so justified.(5) " And where, in an action of trespass quare clausum fregit, the defend- ant pleads a right of pasture for divers kind of cattle (e. g., horses, sheep, oxen, and cows), and issue is taken thereon; if a right of common for some particular kind of commonable cattle only be found by tbe jury, a verdict shall pass for the defendant in respect of sucb of the trespasses proved as shall be justified by the right of common so found ; and for the plaintiff, in respect of the trespasses which shall not be so justified. " And in all actions in which such right of way or common as aforesaid, or other similar right, is so pleaded, that the allegations as to the extent of the right are capable of being taken distributively, they shall be con- strued distributively ."(6) (1) Eicketts v. Salwey, 2 B. & A. 360 ; Manifold v. Pennington, 4 B. & 0. 161. (2) 2 B. & A. 366. NoTB 246. — 'Where the declaration set forth a right to use and employ certain waters, and that the same should flow, without interruption, over and through the plaintiff's land, in a convenient and customary manner, according to the natural and usual flow of the stream ; it was held, that this did not bind the plaintiffs to proof of a right 'bj prescription. Twiss v. Baldwin, 9 Conn. Rep. 291. And held, likewise, that the burden of complaint being the unreasonable detention of the water by the defendants, proof of the allegations respecting the natural course of tke stream, and the right to use it without interruption, was not essential to a recovery. The court found their opinion upon Ricketts v. Salwey, cited in the text, and Williams, J., uses the same reasoning adopted by Holroyd, J., in that case. "The plaintiffs," he remarks, "have not proved aU that they have alleged ; they do not prove their right to the extent they have stated it ; but they prove a right, and that they have been disturbed in the enjoyment of it. The proof, then, is not of a different allegation, but of the same allegation in part." (3) Brunton v. Hall, 1 Q. B. ^92. See, also, Beadsworth v. Torkiagton, Id. '782. (4) 5 B. & Ad. X. (5) See Higham v. Rabett, ui supra. (6) See Knight v. Woore, 3 N. C. 3, 534 ; Phythian v. White, 1 M. & "W. 216. CH. XII.] Of Variances in Oivil Suits. 861 Variance as to documents stated in pleadings. It woxild be quite unnecessary and superfluous to refer here to the nu- merous instances of variances, which were formerly fatal, between the averment of records, deeds or other writings in the record of the action, and the documents produced in evidence ; as, in those cases, under th'e remedial statutes which will immediately be noticed, the variances might now be corrected and cured by an amendment of the record. It will be sufficient, with a view to show the inconveniences and failure of justice in former times, and the improvements in the administration of justice in the present day, to observe generally that, according to the settled prac- tice, till within a few years, where a document was declared upon, and it appeared, on comparing and reading the record with the instrument pro- duced, that some of the words, stated in the pleadings as descriptive of the document (and which could not be rejected as surplusage), varied from those contained in the document produced in evidence, the variance was fatal ;(1) and though it might not have been necessary to state some parts of the document which the declaration purported to set out at length, or only necessary to state those shortly according to their legal effect and operation,(2) yet, if they were set out at length, and were descriptive of the document, they were required to be proved as laid, and in case of a va- riance the plaintiff failed. If a covenant was set out in the declaration as a general covenant, and on reading the deed in evidence it appeared to be subject to an exception or limitation, the variance was fatal.(3) If, however, the declaration did not profess to describe a deed or to set it out according to its tenor, but stated it correctly in substance and in its legal effect, a variance would be immaterial. In an action against a tenant for breach of covenant, proof of a lease from the plaintiff and his wife to the defendant was held to support an averment of a lease from the plain- tiff alone, at least, where the wife had only a chattel interest in the lands before marriage, or they were the property of the husband ; for the cov- evants made to husband and wife may, in legal effect, be deemed coven- (1) The followiug may be referred to as the principal cases relating to such variances : Sands V. Ledger, 2 Ld. Eaym. 192 ; Pitt v. Green, 9 East, 188 ; Bowditch v. Mawley, 1 Camp. 195 ; Howell V. Richards, 11 Bast, 633 ; Waugh v. Russell, 5 Taunt. fOT ; Morgan v. Edwards, 2 Marsh. 96 ; Hoar v. Mill, 4 M!. & S. 470 ; Weeks v. MaiUardet, 14 East, 568 ; Gordon v. Gordon, 1 Stark. R. 294; Horsefall v. Testar, 1 Taunt. 385 ; Cartridge v. Griffiths, 1 B. & A. 57 ; Swallow V. Beaumont, 2 Id. 765 ; Brown v. Knill, 2 B. & B. 395. Cases of variances between a record averred in the pleadings and the record in the action, where formerly the variance was fatal : — Green v. Bennett, 1 T. R. 656 ; 9 East, 161, 163 ; Brown v. Jacobs, 2 Esp. 726 ; R. v. Taylor, 1 Camp. 404. See, also, Com. Dig. tit. Record, C, D; R. v. Leefe, 2 Camp. 141; Woodford v. Ashley, Id. 193; R. v. Bellamy, 1 Ry. & Mo. 171; Sheldon v. Whitaker, Id. 266; Bevan v. Jones, 4 B. & C. 403 ; Edwards v. Lucas, 5 Id. 339. (2) Dundas v. Weymouth (Ld.), Cowp. 665 ; Price v. Fletcher, Id. 727 ; Roulston v. Clarke, 2 H. Bl. 563. (3) Howell V. Richards, 11 East, 633 ; Tempany v. Bernard, 4 Camp. 20. 862 The Suhsta'me only of the Issue needs he proved. [CH xri. ants made to tlie husband alone.(l) So, bonds and promissory notes, given to the wife, may be declared upon as having been given to the hus- band, in a suit by him. (2) In such cases, where the variance is immaterial, an amendment of the record would be unnecessary. Eeoord set out in the pleadings in substance. The same rule extends to averments of records in pleadings. Where the pleadings do not undertake to set out the tenor of the record, and the substance only of the record is stated, a variance between the allegation and the record will not be material, provided the allegation is substantially proved. Thus, on a prosecution for perjury,(3) where the objection was, that the indictment stated a bill in chancery to be directed to Eobert Lord Henley, &c., and it appeared in evidence to have been directed to Sir Eobert Henley, Knight, &c., the court overruled the objection, and held it to be sufficient that the complaint had preferred a bill before the person who held the great seal, by whichever title he was styled.(3) So, in an action for a malicious prosecution, (4) where the allegation was that the defendant prosecuted an indictment against the plaintifp, until afterwards, to wit, on a certain day named, the plaintiff was in due man- ner acquitted, &c. ; and to prove this allegation, the record of acquittal was produced, which showed that the acquittal was on a different day from the one named ; the court held that the variance was not material, and that the averment had been substantially proved. Here the day was not alleged as part of the description of the record ; but the sub- stance of the allegation was, that the plaintiff had been acquitted on the prosecution. So in an action against a sheriff for a false return,(5) the declaration (1) Arnold V. Eevoult, 1 B. & B. 442 ; S. P., Beaver v. Lane, 2 Mod. 21'?. (2) 1 B. & B. 443 ; Ankerstein v. Clarke, 4 T. R. 616. In this case the bond was given to the husband and wife as administratrix. (a) E. V. Lookup, oit. 1 T. R. 240 ; 9 East, 163. See, also, R. v. Kppett, 1 T. R. 235 ; E. v. Payne, oit. 9 East, 158 ; E. v. Leefe, 2 Camp. 139 ; Byne v. Moore, 5 Taunt. 187 ; Cousins v. Brown, 1 Ey. & Moo. 291. (4) Purcell v. Maonamara, 9 Bast, 157. See, also, Phillips v. Baeon, 9 East, 298; Phillips v Shaw, 4 B. & A. 435. (5) Stoddart v. Palmer, 3 B. & C. 2. Note 247. — Variance, wen material and when ijimaterial. — The general doctrine we are to consider is nearly the same, whether the particular instance of variance be in respect to a record, specialty, or any inferior species of written evidence ; and it will therefore avoid the ne- cessity of a frequent recurrence to the same authorities, by disposing of the entire subject in a single note. An instrument used upon the trial is either set forth in tlie pleadings by its tenor, Or it is described according to its substance amd effect, or it is simply brouglit forward to mstain aUegaiions which do not expressly refer to it in any manner whatever. 1. It is well settled, that if a party undertakes to set forth a written instrument by its tenor or in hcec verba, as it is ordinarily expressed, his proof and averments must correspond most strictly ; and if, in the recital, he varies in a word or letter, so as thereby to create a different word, it is fatal. 4 Starkle's Ev. 1587. The ;State v. Caffey, Murph. 321 ; Sheehy v. Maned- CH. Xll.] Of Variances in Civil Suits. 863 ville, 1 Cranch, 208, 211 ; Perguson v. Harwopd, Id. 408, 413 ; Commonwealth v. Stow, 1 Mass. Eep. 64; Oliii v. Chapman, 2 Tyl. Eep.'l48; Harris v. Lawrence, 1 Tyler's Eep. 156. And It win be found that the phrase " to the tenor 'Mowing," oi "as 50110*8," 'or "in the words and figures following," or the like, preceding an allegation of the instrument, has usually been held to bind the party to exact proof 4 Starkie's Ev. ISSI ; Harris v. Lawrence, 1 Tyl. Eep. 156; Clin V. Chipman, 2 Tyl. Eep. 148 ; Commonwealth v. Stow, 1 Mass. Eep. 54. Not so, however, where the words are "in manner and form following." Eex v. May, Doug. 193. Tet, what- ever may be the pecuhar mode in which an instrument is alleged, if it be apparent from the whole aspect of the pleading that the party intended to set it forth in the precise words, sUght inaccuracies will be fatal. Olin v. Chipman, 2 Tyl. Eep. 148. But should it stiB remain doubt- ful, after recurrence to these circumstances, whether the instrument was designed to be set out in this maimer, or merely described by its substance and effeot, our courts would, doubtless, be in favor of extending to the party the benefits of the latter Etltemative. See Ferguson v. Har- wood, and Silver v. Kendrick, cited swpra ; also, the remarks of Marshall, C. J., in Wilson v. Codman's Ex'r, 3 Cranch, 193, 208. Instances of the application of the rule we are considering will occur most frequently in the case of actions for libels, as to which, see the text, post and mde. By way of showing the extent to which it has been carried, it may "bfe proper, in addition to what we have above stated, to remark that, where the instrument is set out by the tenor, the most trivial mistakes, even in a single word, as the substitution of nee for nan, a*- for heir, have been held fatal (Drake's Case, 2 Salk. 660; 4 Starkie's Bv. 168T); but a mere literal vari- ance in the spelling of a word, oRiy for abhey, wnderk>od for widerstood, or any similar slip of the pen, not changing the word to one of a different signification, wiU be overlooked. Aleberry v. Walby, 1 Strange, 229, 231 ; 4 Starkie's Bv. 1581. So, a mis-spelHug of the name of an indi- vidual will not vitiate, if the sound be not altered ; as where one is Segrave, and the other Sea- grave. WiUiams v. Ogle, 2 Str. 889. And where the declaration alleged a note drawn by the defendant, by the name of CfwisiopJier Sulkley, and anote produced was signed Christ. BiiVdey, it appearing that the defendant usually signed his name in that manner, the court held there was no variance. 'Wood v. BuUdey, 13 John. E. 486. So, where a single bill was declared on as signed by PMlvp Taylor, and the one produced was signed Pilip Taylor, it was held that as these names are similar in sound, there was no variance. Taylor v. Eogers, 1 Alab. Eep. 191. In Pennsylvania, the general rule is, that a small variance in setting eut a written instrument is fatal ; but the rule is not appUcable where the opposite party, by trick or artifice, withholds the Original, or where the party averring the instrument cannot by due exertions obtain it; as where the action was founded upon a contract under seal, and the defendant prayed oyer, where- upon the court allowed the plaintiff, upon satisfactory proof that he had not the original in his possession, and by due search was unable to obtain it, to give a copy from the records as oyer ; and it appeared that, at the time of demanding oyer, the defendant had both parts of the instru- ment in his possession, and being charged therewith, positively denied it, but produced the same In court upon the trial ; under these circumstances, it was held that after this improper conduct on the part of the defendant, it did not lie in his mouth to insist on a variance, however fatal it might be in common cases. Dunbar v. Jumper, 2 Teates, 74. In debt on a bond, the declara- tion, purporting to set it forth in Juec verba, charged that B. and B. acknowledged themselves to be indebted, &c. ; held, that a writing, beginning, " Know all men, &c., that I, R., am held and firmly bound," and running throughout in the name of R. alone, did not support the declaration, notwithstanding the name of B. was signed under that of E., and issue was joined merely upon payment by B. Bell v. Allen's Adm'r, 3 Muuf. Eep. 118. If the condition of a bond be set out on oyer, it has been held that a slight variance from the tenor will not be fatal. Thus, where, in the oyer, the words were " or delay, and in the original " or other delay,'' this was disregarded, because it did not alter the sense. Henry v. Brown, 19 Johns. Eep. 49. But where, in the oyer, the condition was, that if the defendant should pay the plaintiff the full sum of £100, and under the plea of non est faciwm, the evidence was that the word "hundred" had been omitted in the bond, and had been interUned after execution, the variance was held to be fatal ; although it was clear from the context that the word hundred was intended. Waugh v. Bussell, 5 Taunt, 101; S. C, 1 Marsh. 214. The basis of the decision in Henry v. Brown {supra), appears to have been Hohnau v. Borough (Salk. 658), and Cull v. Sar- mine (cited in 5 Comyn's Dig. 125, b. 4) ; both were cases of demurrer, on the ground of variance 864 The Substance only of the Issue needs be proved. [CH. XII. between the declaration and the deed set out on oyer; and in Waugh v. Bussell {svpra), G-ihbs, C. J., who delivered the opinion of the court, referring to them, says : " This is not a question for lawyers on the construction of the bond ; the cases cited are good law, but not applicable. In those cases the declaration may be right, and yet may not contain a single word that is con- tained in the bond ; it is only necessary to state the legal claim which arises by reason of the bond. But after oyer and rum est factum, pleaded, the question is, whether the tenor set out is the same as the tenor of the bond executed ; and I do not apprehend it would suffice that it should agree in substance. The case in Levkz (viz ; Cull v. Sarmine, mpra), when examined, is only because the plaintiff added an e final to the name of the widow Sarmine; and the court sayi mis-spelling wUl not vitiate an obligation. Chief Baron Comyns has certainly misunderstood that case. Consider the reason of the distinction. In a declaration, it is only necessary to state the legal effect of the instrument ; but on oyer, the plaintiff professes to produce a copy of it, as of the deed by which he asserts that the defendant is bound ; and if it is not the true copy, the de- fendant may say, that it is not the deed he executed. "We should be glad to relieve the plain- tiff, but it is not in our power. The defendant has a right to see the instrument exactly as it is, and to make the most of the errors therein contained." The supposed error of Chief Baron Comyns consists in stating CuU v. Sarmine as maintaining, that " if the declaration be upon a bill, thai he will pay, and the bill says, if he will pay, the variance will be immaterial." As reported in 3 Lev. 66, to which Comyns refers, the case is very obscure ; though, from the reason there given for the decision, viz : that "mis-speUing will not vitiate an obligation," we should incUne to think the remarks of Gibbs, C. J., respecting it, not unwarranted. It is worth observing, that the atten- tion of the Supreme Court in Henry v. Brown [supra), does not seem to have been directed to tliis circumstance, nor do they appear to have noticed, in any way, the distinction taken in Waugh v. Bussell (supra), as to instances of variance between the declaration and oyer, and those where the variance is between the oyer and evidence. 2. When the pleading, however, does not purport to set out the instrument in hcec verba, but it is merely described by its substance and effect, the rule is more liberal, and better calculated to attain the ends of justice. And, in such case, it is ordinarily enough, if the legal identity of the instrument has been adhered to ; or, in other words, there wiU be no variance, if the instru- ment proved, and the one alleged, correspond in all essential particulars. Accordingly, in debt against a sheriff for an escape, where the declaration alleged a judgment recovered in the Court of Common Pleas, held at Salem, in "Washington county ; and in the record produced on the trial, the place or town in which the court was held did not appear, the variance was disregarded. Page V. Woods, 9 John. Hep. 82. And on an indictment for perjury in swearing to an affidavit where the assignment was, that the prisoner swore he did not know a writ was returned against him in a particular suit, and the affidavit, when produced, contained the word case instead of suit ; held, that as the indictment only purported to set forth the affidavit in substance, the vari- ance was not fatal. The State v. Caffey, 2 Murph. Rep. 321. And in an action for a hbel, the defendant gave notice, with the general issue, that he would give in evidence a record of a trial upon an indictment, of the term of June, 1810: when produced, it appeared to be in 1809- held that the time was not material, and as the notice did not affect to set forth the record according to its tenor, or with & prout patet, &o., the variance was unimportant. Brooks v. Bemiss, 8 John. Kep. 465. And see per Woodworth, J., McKinley v. Bob, 29 John. Rep. 351, 355 ; Rodman v, Forman, 8 Jolm. Rep. 26. And even an averment, with a provipatel per recordum, will not render proof by record necessary, where, from the nature of the fact as averred, it appears that there is no record. Walker v. Witter, Doug. 1. And see Wigley v. Jones, 6 East, 440. But see Turner v. Eyles, 3 Bos. & Pull. 456. In one case, the plaintiff having alleged that the defendant permitted his bUl to be discontinued, for want of prosecution thereof, and that thereupon it was considered that the defendant take nothing, &c., proui patet per recordum, whereby it was wholly ended and determined; held, that this was not proved by the production of the rule for discon- tinuance, though, had the aUegation been general, it would have been satisfied by the produc- tion of the rule, and evidence of the payment of costs. Gadd v. Bciinet, 5 Price, 540. See Fanshaw v. Heard, 1 Moore & Payne, 191. Where the plaintiff sued for a malicious prosecu- tion, and in one count of hia declaration alleged that the defendant went before a magistrate and entered a complaint, charging the plaintifl' with committing an offence on day of 1824, and in the other that he so charged the plaintiff with committing an offence on or about the CH. XII.] Of Variances in Civil Suits. 865 20th day of May, 1824 ; it was held, that an afldavit taken before the magistrate, charging the plaintiff with having committed the offence on or about the 16th of May, 1824, was admissible ; for, say the court, " the declaration did not profess to set out in so many words, the original affi- davit of the defendant. It only stated the substance in general terms. This was sufficient for all the purposes of justice. The particular day upon which it was alleged the offence was com- mitted, was not material for the defendant's defence, and the paper offered in evidence comported snbstantiaJly with the allegations in the declaration. It was not a case of technical nicety, but of substantial accordance." Eidiards v. Foulks, 3 Hamm. Rep. 66, ^0. And so where writs and process are set out according to their substance, slight variances, or indeed any variance which does not affect their legal identity, will be disregarded. As where, in debt for an escape, the declaration set forth a ca. aa. with the usual words, " and him safely keep," and the ca. sa. produced omitted the word " keep ;" it was held no fatal variance. Jones V. Coolc, 1 Cowen's Rep. 309. So where the variance was in amount, and trifling. Bissell v. Kip, 5 John. Rep. 89. And where the declaration alleged that the direction in an execution was to levy a specific amount, without mentioning interest; and, by the execution, the sheriff was directed to levy the amount, with interest ; held no material variance. Crane v. Dygert, 4 "Wend. Itep. 675. See Stiles v. Rawlins, 5 Esp. Rep. 133. But in an action on a bond exe- cuted to the plaintiff as sheriff, conditioned that B., being confined in jail on an execution in favor of 0. for $68.46, should not depart the Umits ; where the declaration alleged as a breach that B., being legally committed on the execution described in the bond, escaped, after which C. sued A. and recovered, and in support of these allegations, the plaintiff offered in evidence the record of the recovery by C. against him, wherein the execution on which B. was commit- ted, was described as one for $58.46 ; and also the execution itself, which was for the same sum ; held, that the evidence was inadmissible, as not conducive to prove, but as diaproviitg such allegations. (Kossiter v. Downs, 4 Conn. Rep. 292. And where, in a plea of justification, a justice's execution was described as returnable in ninety days, and when produced, it turned out to be returnable in sixty days, the variance was held fatal (Toof v. Bentley, 5 Wend. Rep. 276); so, also, in an action for maliciously bringing a civil suit, and demanding excessive bail; the plaintiff's declaration alleged that the writ, upon which he was held to bail, was returnable on the first Monday in December, 1809, whereas it was, in truth, returnable on the first Mon- day of March. Munns v. Dupont, 3 Wash. C. 0. Rep. 31. But in an action against a sheriff for the escape of a party taken under a ca. sa., where the plaintiff alleged a certain writ of the king called, &c. ; also the judgment as rendered in the seventh year of our lord, the now king (Geo. IVth); and on production of the writ, it was found to contain the name of George III; held, that as the judgment was in the time of George IV, and as the plaintiff had alleged that the writ was issued on the 8th of May, 1826, the variance was not fatal. Blvin v. Drummond, 12 Moore, 525. So where, in a similar action, the declaration alleged that an attachment of privi- lege was sued out by the plaintiff, by which the defendant was commanded to attach, &c., to answer, &o., of a plea of trespass on the case to the damage of said plaintiffs of thiriy pownds, and the writ produced did not contain the words, " to the damage of said plaintiffs," &o. ; yet held, that the variance was immaterial, as the declaration did not undertake to set out the writ by its tenor, but only accordmg to its legal effect. Cousins v. Brown, Ry. & Mood. 291. And in a pro- ceeding against bail, on nul tiel record pleaded to a replication, which alleged a ca. sa. returnable Coram Rege apud Westm. where a ca. sa. was produced, returnable Coram rege ubicunque, &c., the variance was disregarded. Roberts v. Price, 1 Lord Raym. 702. See Shuttleworth v. Pilk- ington, 2 Str. 1155, cited by BuUer, J., in 1 T. R. 240. So where, in action for bribery, the declaration alleged a precept to the mayor, and the evidence was of a precept directed to the mayor and burgesses, the variance was held immaterial, for the substance was proved; and the mayor being the proper returning officer, the precept should have been directed to him. Gum- ming V. Sibley, cited 1 T. R. 239 ; Dickaou v. Fisher, 4 Burr. 2267 : "Ware v. Harbin, 2 H. Bl. 113. For other cases of a similar nature, see Rex v. Morris, Str. 909 ; "Wilson v. Mawson, Cor. Lee, C. J., cited 1 T. R. 237; Hendray v. Spencer, cited 1 T. R. 229; 4 Starkie's Bv. 1589, et seq. In an action, however, against the sheriff on the statute (8 Anne, o. 14), for taking goods off the premises without paying rent, the declaration stated, that " by virtue of, and under pre- tence of a certain writ of our said lord the king, before the king himself," before that time sued forth, tlie defendant took, &c. ; it was held, that a writ issuing from the Corrmum Pirns did not Vol. I. 55 866 The Substance only of the Iss-m needs le proved. [CH. xil. sustain the ayerinent. Sheldon v. "Whittaker, Ey. & Mood. 266. And see Impey T. Taylor, 3 Maule & Selw. 166. The same principles are equally applicahle where a deed of any kind is set out Thuis, in debt on bond, the plaintiff alleged that the defendant acknowledged himself to be bound to Eichard Bishop ; on oyer, it appeared that the defendant acknowledged himself bound to Eichard , to be paid to the said Eichard Bishop ; and, upon demurrer, held that there was no variance, for the word said pointed out the relation of the names, and it was impossible to doubt but that the bond was made to the person to whom the money was payable. Bishop v. Morgan, 12 Mood. 215. And where the bond described the defendants as " of the county of Essex," which words were omitted in the declaration, the variance was held immaterial. Evans v. Smith, 1 Wash. Eep. 12. So where the plaintiff declared upon a bond given to him /or, or on accovmi of, another, andrso expressed in the bond ; and neglected to set forth that part of the instrument which manifested the use, it was held that the variance was immaterial ; " even if it had been stated," say the court, " it would have been mere surplusage." Peter v. Cocke, 1 "Wash. Eep. 257. And if a bond be payable to James Wbitlock, jun., and the declaration describe it as payable to the plaintiff, after naming him as James Whitlow, jun., alias Jaimes Whiiloch; this is not such a, variance as should prevent it from being received as evidence in support of the declaration on a pUa of payment. Whitlock v. Eamsey's Adm'x, 2 Munf. Eep. 510. And where a bond was described as payable on or before the first day of April ensuing the date, with interest thereon from the first day of January next ensuing the same date ; and the bond was " payable, with in- terest from the first day of January, on the first day of April next ;" it was held there was no variance, as the sense and legal meaning of the instrument were truly alleged. Hammitt v. Bullitt's Ex'rs, 1 Call, 561. So, where a declaration alleged a bond to be payable to the plaintiff, and on oyer it turned out to be payable to his attorney or assigns — ^the court, on demurrer, held the variance immateria;l, for payment to the plaintiff or to his attorney was the same thing ; the tmeri made it a debt to the plaintiff, and a solvend to any one else would be repugnant. Roberta V. Harnage, 2 Salk. 659. In an action by the husband alone, on a bond alleged to be given to him, he gave evidence of a bond to himself and his wife ; held no variance, for he had a right to reject the obhgation to his wife, and, in legal import, it was a bond to himself. Aukerstien v. Clark, 4 T. E. 616. See, also, S. P., Arnold v. Eevoult, 1 Brod. & Bing. 445 ; S. C, 4 Moore 66, cited in the text as Arnold v. Eevoult. So, where the declaration upon a bond stated that C. D., by his certain writing obligatory (of which profert was made), became bound to A. B., the plain- tiff, in the sum of, &e., to be paid to the said A. B. or his lawful attorney, " To the which paymeia^ well and trvXy to be made, the said A. B. (the plaintiff) did thereby then and there bind himself," &c_ The defendant, without craviijg oyer, pleaded non est factum; and, at the trial, relied on a variance in this, that the bond proved stated that 0. D. bound himself; on a motion for a nonsuit, it was held, that the plaintiff not having undertaken to set out the deed in its words, but only in its operation and effect, which was truly stated, and in no wise affected by the repugnant words, they might be regarded as surplusage, and then there was no variance. Quigley v. Furlong, Fox & Smith, 224. "Where a declaration stated that, in a dispute between the defendant and the plaintiff, executor of A., a sum of money was awarded to the plaintiff, and the award exhibited on oyef was of the same sum to the plaintiff and P., executors of A. ; this was held no variance, on the ground that the legal operation of the award had not been departed from. Macon v. Crump, 1 Call's Rep. 515. It should be here observed, that, if there be a variance between the declaration and the oyer, the defendant, should he seek to avail himself of it, must demur specially on that ground ; for he cannot take advantage of it on the trial. James v. 'Walruth, 8 John. Rep. 410; Jansen v. Ostrander, 1 Cowen'sRep. 610; Henry v. Clelland, 14 John. Rep. 400. But in respect to a variance between the instrument produced in evidence and the oyer, or suoh instrument and the declaration, the rule is otherwise ; in these instances, he may avail himself of the defect at the trial under the proper plea. "Waugh v. Bussell, 5 Taunt. 101, supra; Howell v. Richards, 11 Bast, 633 ; Goldie v. Shuttleworth, 1 Camp. 10; Graham's Pn 443. The plaintiff, however, in an action on a covenant, need not set forth suoh parts of it as do not, in any way, relate to the breaches assigned ; and if, on producing the covenant at the trial, it appear that some- thing not necessary to be set out has been omitted, the variance will be disregarded. Henry V. Clelland, supra. See ante, of the text. Not so, however, where he has undertaken to set out. CH. XII.] Of Variances in Civil Suits. 867 such immaterial part, and has alleged it untruly ; there the variance will, in general, be fatal. Henry v. Olelland, supra,. And see the cases cited in the text. And in relation to simple contracts in writing, if they are truly described in substance and legal effect, variances in other particulars, will, in general, be overlooked. Thus, if the plaintiff does not profess to set out a note verbatim, but merely alleges it in the ordinary way, as bearing date ^ei first day of April, &o., it will be no variance if the note be actually dated 4 mo. \st. Field v. Pield, 9 Wend. Rep. 394. And where the declaration alleged an indorsement upon a note, by which it was made payable to C. or order, and on production of the note, the indorsement was, pray pay to G. ; held, no variance, for by the indorsement it was in effect payable as alleged. BuU. N. P. 275. In an action, however, by an indorsee against the maker of a promissory note, payable on demand, where the declaration set out an indorsement in common form, but by the indorsement proved, payment was not to be demanded within a year from the date ; held, a variance, though the year ha,d expired before the action was commenced. Stanwood v. Scovel et al., 4 Pick. 422. In this case, however, there was a palpable deviation from the legal' import of the indorsement. If a declaration on an agreement by the defendant styling himself " treas- urer, &o.," but binding himself personally, omit the description, it is no variance. M'WiUiams v_ "Willis, 1 "Wash. R. 199. Indeed, it may be laid down as a proposition sustained by nearly all the cases, that whenever the variance does not change the nature of the writing, so as to render the one set out, a differ- ent instrument in legal contemplation from that which is sought to be introduced, such variance win be disregarded. Perguson v. Harwood, T Craneh, 408, 414. And see Silver v. Zendrick, 2 N. H. Eep. 160 ; The Commissioners, &c. v. Muse, 1 Const. Reports, 405. And the words of a contract set forth In the declaration, must have the same construction as they would have in the contract itself. "Whenever, therefore, the declaration purports to set forth a contract according to its effect and substance, and in the contract set forth there is a clause nonsensical or repug- nant, which the court in construing the contract itself, would reject as surplusage, they wUl so reject it also in the declaration. And though the contract do not contain such clause, the variance will not be fatal. Ferguson v. Harwood, svpra; Quigley v. Pm-long, Pox & Smith, 224; SUver v. Kendriok, svpra; Diblee v. Best, 11 John. Rep. 103. But the legal import and effect of the instrument must be truly described, or the party will fail on the ground of variance. Several cases illustrating this qualification of tie general prin- ciple, have been already noticed, and others will be found in the text. "We ahaU introduce some additional ones. The words for vaMe received, as ordinarily used in setting forth a promissory note in a declarar tion, are not to be taken as a mere naked averment of consideration, but as matter of description ; and if the note when produced want those words, the variance wUl be fatal. Saxton v. Johnson 10 John. Rep. 418. So where those words are in the note, but omitted in the declaration, the variance has been held fatal. Rossiter v. Marsh, 4 Conn. Eep. 196. And where an order was declared on as having been given for value {herein acknowledged, and the order when pro- duced stated no consideration, the variance was held fatal (Treadway v. Nicks et al., 3 M'Cord's Eep. 195); so where a bill declared on was alleged to be for value received by B. H., and the one produced in evidence was for value received generally. Highmore v. Primrose, 2 Chitty's Rep. 333. Sed vide Grant v. Da Costa, 3 Maule & Selw. 351. In an action against several persons on a note, the declaration contained no averment that the defendants were partners, or acted under a joint name or firm, but alleged that the defendants " made the note, their own proper hands and names being thereunto subscribed;" held, that proof of one of the defendants having subscribed the note with the name of the firm, was not sufficient to prove the contract stated. Peas v. Morgan, 1 John. Rep. 468. But where the declaration averred that the defendants were partners, it was held, that an indorsement in the name of the firm, by one of them, might be declared on as made by the firm. Manhattan Co. v. Ledyard, 1 Caines' Eep. 192 ; Kane v. Soofield, 2 Id. 368. A. and B. having given a joint and several note to C, and afterwards by agreement with A. and C, D. signed his name to the note, and then 0. brought an action against A., B. and D., declaring upon it as their /omi and seueral note ; the court held, that the plaintiff should fail on the ground of variance, the note not being a joint contract by D., A. & B. Ives V. Pickett et al., 2 M'Cord, 271. In a recent English case, decided at Nisi Prius, where the declaration alleged the note to have been made by the defendant, "his own proper The Suhstance only of the Issue needs he proved. [CH. XII. hand teing thereunto subscribed," and it appeared that the defendant's son drew the note by his authority, and signed his name thereto, Lord Tenterden, C. J., held, that there was no variance, as those words might be rejected as surplusage. Booth v. Grove, 1 Moody & Malk, 182. Gonl/ra Levy V. Wilson, 2 Esp. Eep. 180. So where the action was against the payee as indorser, and it was alleged that he indorsed it, his own proper hand being thereunto subscribed; Lord EUenbo- rough inclined to think that if the defendant's name was signed by another, by his procuration, it was enough to satisfy the averment. Helmsley v. Loader, 2 Campb. 450. And the same prin- ciple has been expressly laid down as sound law in Alabama and Connecticut. Baldwin v. Stebbins, 1 Alab. Eep. 1,80 ; Phelps v. Eiley, 3 Cona Eep. 266. At any rate, the defendant will not be allowed to object the variance in such cases, after he has promised to pay the note with a complete knowledge of the facts. Helmsley v. Loader, supra. If a note signed by A., be de- clared on as the act and deed of B., the variance is fatal ; and so if a note signed by A., individ- ually, be declared on as executed for and in behalf of B., by his agent A. Eossiter v. Marsh, 4 Conn. Eep. 196. A variance as to the amount of the note is fatal. PUie v. Mollere, 2 Mart. Lou. Eep. 666. And where a declaration omits the time when the note is payable, and it is payable in a given number of days after date, the variance is fatal (Sheehy v. Mahdeville, 1 Cranch, 208 ; Caller's Bx'r v. Baykin, 1 Alab. Rep. 206 ; Sebree v. Dorr, 9 "Wheat. Eep. 558 ; Morris v. Fort, 2 M'Cord, 391) ; and so of a variance as to the date (Drown v. Smith, 3 N. H. Eep. 299 ; 2 Campb. Eep. 30T, 308, note), or the place where the note is made payable. Sebree v. Dorr, supra. But where .a note was alleged in a declaration as having been made on the Yth of January, 1808, and the proof was of a note actually made on that day, but by mistake daied January 1th, 1801 ; it was held no variance. Phoenix Ins. Co. v. "Walden, Anth. N. P. 126. In De La Courtier v. Bellamy (2 Shower, 422), the declaration omitted the date, but the time of drawing the bill was set out, and all the other averments accorded strictly with the tenor of the bill ; upon exception taken because of omitting the date, the court said they would intend it dated when drawn. See Hague V. French, 3 Bos. & Pull. 113, S. P.; also Coxonv. Lyon, 2 Campb. 301. In a case, how- ever, before Lord EUenborough, at the sittings after May term, 1809, where the declaration al- leged that the defendant on, &c., made his certain bill, &c., "bearing date the same day and year aforesaid, and the real date was different, his Lordship held the variance fatal. 2 Campb. 307, 308, note. Where the declaration alleged a biU drawn by Blisha Brown, it was held, that a bill drawn by Elijah Brown could not be given in evidence. Craig v. Brown, 1 Peters' C. C. Eep. 139. But the plaintiff, after submitting to a nonsuit in this case, had liberty to set it aside and amend. If a bond be given to A., his assigns, &c., and enures to the benefit of the plaintiffs by assign- ment, who prosecute upon it, and declare as upon a bond given to themselves without mention- ing the assignment, the variance will be fatal. Gordon et al. v. Browne's Ex'r, 3 Hen. & Munf. 219. And so, if the penal sum mentioned in a bond be misdesoribed. Adams v. Spear, 1 Hayw. Eep. 215. And, where a bond was alleged to bear date on the 4th of January, 1113; and when produced, turned out to bear date on the 4th of January, 1115, the variance was held fatal. Gordon v. Browne's Bx'r, 3 Hen. & Munf 219. See Cooke v. Graham's Adm'r, 3 Cranch, 229. If the plaintiff declare on "a writing obligatory, sealed," &c., he will not be permitted to give in evidence a writing which is not a specialty. Poster v. Eoss, 1 Alab. Eep. 421. And where the deed, in an action of covenant, was declared upon as made between the plaintiff, of the one part, J. 0. of the second part, and A. B. of the third ; and when produced, it appeared on its face to be by the plaintiff as trustee of J. C. of the one part, G. C, of the second, and A. B. of the third (J. C. being named in the body of the deed as the party of the second part, but G. C. having actually executed it as such) ; held, that the variance was fatal, although the breaches assigned in no way affected the party, who was intended to be described as of the second part. Mayels- ton V. Palmerston, 2 Carr. & Payne, 414. And in an action on a bail bond, where the condition as alleged in the declaration was to answer the plaintiff in a plea of trespass, "and also to a plea to be exhibited against said defendant, for £60 upon promises," and the bond, when produced, did not contain the words upon promises; held, that the variance was fatal. Baker v. Newbegin, Ey. & Mood. 93. In covenant, where, in setting out the deed, the declaration stated that "it was witnessed, among other things, that as well in consideration of," Ac, and part of the con- siderations were omitted, and there were no words in the declaration answering to the phrase as well; held, that this was a fatal variance. Swallow v. Beaumont, 1 Chit. Eep. 518. Proof of a submission by one of two executors will not support a declaration alleging a sub- CH. XII.] Of Variajices in Civil Suits. mission by both. Tevis' Bx'r v. Tevis' Bx'rs, 4 Monroe, 46. In debt, on a bond with a condi- tion, if the plaintiff allege that the bond ia lost, he must set out the substance of the condition ; otherwise, proof of a bond with a condition, will be a fatal variance. Rand v. Kand, 4 N. Hamp. Eep. 267. Where, in debt upon a recognizance, the recognizance was alleged generally, and upon nul tiel record it appeared to be a recognizance with a condition, the variance was held fatal. Harrington v. Brown et al., 1 Pick. 232. So, if the recognizance be, to appear and answer a charge for beating another, whereof he died, and the declaration state it to be, to answer a charge for beating another merely, the variance is fatal. DiUingham v. United States, 2 Wash. 0. 0. Eep. 422. And in an action upon a recognizance of bail, where the declaration averred a judg- ment against the principal : a variance in the amount of the judgment of six cents, was held fatal, under the plea of nul iid record. Bibbins v. Noxou, i Wend. 207. See also Beecher v. Chester, 2 Root's Rep. 90, S. P. And where a judgment was described in the declaration as against David Goodrich, and upon nul tiel record pleaded it appeared to be a judgment against David Groodrioh, jun., the variance was held fatal De Kentland v. Somers, 2 Root's Rep. 43'7; So a record of a judgment, stating a recovery in trespass for $102.64, cannot be given in evi- dence in support of an averment, in an action for breach of covenant for quiet enjoyment, that the recovery was $600. Webb v. Alexander, 1 Wend. Eep. 281. And where debt was brought, upon a decree in chancery, for £860 12s. Id., and the decree, when produced, was for £860 12«. Id., with interest from a certain day, to the day of rendering the decree, the variance was held fatal Thompson v. Jameson, 1 Cranch, 282. In an, action for malicious prosecution, the decla- ration alleged an information before a magistrate, made through the procurement of the defend- ant, which charged the plaintiff with having feloniously stolen, and ridden away with, two , geldings, &c., and it was held, that a count stating the matter in this way, could not be sustained by proof of an information charging a mere trespass, in taking away the geldings. Milton v. Ellmore, 4 Carr. & Payne, 456. In a criminal prosecution on the 7th and 9th sections of the act of Congress (July 29th, 1813, oh. 34), for ma'aing a false declaration, the indictment having stated the purport of a written paper to be, that the vessel was of the burden of fourteen tons and 45-95ths of a ton, whereas the paper produced stated it to be fourteen tons and 50-95ths, the variance was held fatal. United States v. Lakeman, 2 Mason, 229. And where, in an indictment for perjury, the crime was alleged to have been committed at a circuit court, held on the 19th day of May ; whereas the record showed the court to have been held on the 20th of May, the variance was adjudged fatal. United States v. M'Neal, 1 Gall. Eep. 387. Contra, Eex v. Cop- pard, 3 Carr. & Payne, 50. 3. If the instrument is neither set out m the pleadings by its tenor, nor described by its legal, import, but is merely brought forward to sustain an allegation not referring to it expressly in any way whatever, a variance will not be fatal if the substance of what ia alleged be proved. In- stances of this character occur frequently in the action of assumpsit, where the plaintiff may, declare upon his promise generally, without averring it to be in writing. Lawes on PI. in As- sumpsit, 90. See per Spencer, J., in Nelson v. Dubois, 13 John. 175, 177. Thus, where the plaintiff declared, that on the 2d of December, 1822, he having delivered certain articles to the defendant, &c., to be aafely kept at the defendant's expenae, the defendant undertook and prom- ised to keep them safely, and return them on demand ; the plaintiff, to prove his contract, in- troduced a written memorandum of the agreement, bearing date the 22d of December, 1822; the defendant interposed an objection, on the ground of variance aa to the date, which was over- ruled ; and afterwards, the case coming up for review, the decision at the trial was held correct^ for although, say the court, " where a plaintiff declares upon a written instrument aa bearing a , particular date, a variance from the date stated is fatal; yet, when a count is founded upon a, contract, it is not important what day is laid, unless the date be made material by the nature of, the contract." Drown v. Smith, 3 New Hamp. Eep. 299, 301. And where a declaration stated, the consideration of a promise to be, that "A., at the request of C, would consent to suspend, proceedings against B.," and the written agreement stated the consideration to be, that ''4-i at the request of C, consented," &c., the variance was held immaterial. Paine v. Wilson, 1 Mann. & Eyl. 708. So where the declaration alleged the consideration of the defendant's undertaking to be, that the plaintiffs would delay service of an execution, and the written contract produoed.read aa follows: " if said execution be delayed," &c. ; the varianee was disregarded. Lent v. Padijla- fcrd, 10 Mass. Eep. 230. So where the declaration was for not transporting^ salt, aecprding'to 870 The Substance only of the Issue needs be proved. [CH. XII, contract, and the price or consideration of the defendant's engagement was alleged to he one dol- lar eighty-seven and a-half cents per tierce, to he paid hj the plaintiff; held, that this was sus- tained by evidence of a written agreement to transport for fifteen shillings, and by proof that by the currency of the place where the contract was made, the amount was the same. Salter v. Kirkbride, 1 South. Rep. 223. And it is proper to be noticed here, that where the plaintiCf merely alleges the ^reement without stating whether it is in writing or not, he will be precluded from introducing in evidence a specialty in which the parol contract is merged. Laudisv. Urie, 10 Serg. & Eawle, 316. But a specialty accepted as a coUaiercd secwiiy is not within the principle, for it does not merge the original contract. Charles v. Scott, 1 Serg. & Eawle, 294. See January v. Goodman, 1 DaB. Rep- 208. Nor does a foreign judgment merge an account stated. HaE v. Odher, 11 East, 118. In an action for pirating a book, the declaration averred that the plaintiff was the author of a certain book, being a musical composition, called " Captain "Wyke," and the proof was that "Cap- tain "Wyke" was only one of a collection of tunes called "White's collection of new and favorite tunes, as performed at aU fashionable assemblies," &c. ; yet held, that the allegation was sup- ported. White V. Gerock, 1 Chitty's Rep. 24. Where a count in qvM-e impedit stated that R. L., by deed, conveyed the fourth part of his advowson to L. S., and the deed purported to convey the whole of the advowson ; held, that as it was admitted by the pleadings that R. L. had only a fourth part, and hence could convey no more, and the declaration did not profess to describe the deed m verbis, the variance was not fatal. Gully v. The Bishop of Exeter, 12 Moore's Rep. 601. It being alleged also that the deed was made for the considerations therein stated, and the deed when produced contained only one, a pecuniaty consideration, the variance was disregarded. Id. Where the plaintiff, in an action of trespass quoure clawsv/m fregit, declared by the name of WiUiam Robinson, and the deed under which he claimed was to William T. Robinson, the vari- ance was held immaterial. Franklin v. Talmadge, 6 John. Rep. 84. See Richards v. M'Donald, 1 Const. Rep. 114. An allegation that an action is pending in his Majesty's court of the bench at Westminster, is not supported by proof of a plv/ries bill of Middlesex ; for by such allegation the Court of Common Pleas must be intended. Impey v. Taylor, 3 Maule & Selw. 166. And see Sheldon v. Whittaker, Ryan & Mood. 266, stated mpra. See also Berkley v. Cook, 3 Call's Rep. 378 ; Ronalds v. Smith, 6 Taunton, 651 ; S, C, 2 Marshall, 258 ; Sheldon v. Whittaker, 4 Bam. & Cresswell, 65'Z ; and ^os<, of the text; also 4 Stai'kie's Evidence, 1603, d seg. In assumpsit for money paid to the defendant's use, the declaration stated that an execution had been issued against the defendants, inhabitants of the town of N., for taxes, and that property had been seized thereon, for which the plaintiff had given his receipt; and that, in consequence, he was compelled to pay the money in satisfaction for the taxes; a receipt was given in evidence, stat- ing the property to have been seized on an execution against the collector ; and it was held that the variance was not fatal, evidence having been produced, that the execution on which the prop- erty was seized and receipted, was in fact against the town. Beers v. Botsford, 3 Day, 159. In Louisiana, in a proceeding by the plaintiffs to obtain satisfaction of a judgment against their curator, the petition stated that the curator was appointed in 1813, and the record of appoint- ment showed that the appointment took place in 1815 ; held, that as the time was immaterial, the record was admissible. Pigeau et al v. Commeau, 4 Mart. Lou. Rep. (N. S.) 190. And it is said that in general, where the instrument introduced is not the gist of the action, slight vari- ances will be disregarded. Baldwin v. Hazzleton, 3 Mart. Lou. Rep. (N. S.) 61. But in an action on a sheriff's bond, where the declaration was for the non-payment of taxes of 1185, the court held that the record of a judgment for the balance of taxes collected by him in 1186, was not evidence. In some of the numerous decisions which have been made on this subject, judges have occa- sionally expressed themselves in allowing objections for variance, as yielding to the force of pre- vious authority with great reluctance, especially in those instances where it was apparent that the party objecting to a particular variance was in no wise misled by it, and could not in any event be injured or prejudiced, if it were entirely disregarded. In order to obviate the difSculty as far as possible, a practice has grown up, under the sanction of many of the courts, of allowing the pleadings to be amended after trial, so as to make them conform to the evidence, and in this way save the necessity of a new suit. Thus, in Holland v. Hopkins (2 Bos. & PuU. 244), the plaintiff bad been nonsuited at the trial, on the ground that the evidence offered differed mate- CH. XII.] Of Yariances in Civil Suits. 871 rially from the bill of particulars delivered; and though the court concurred in the opinion of the judge who nonsuited the plaintiff, they set aside the nonsuit, and gave the plaintiff leave to amend the bill of particulars on payment of costs. And in Holhead v. Abrahams (3 Taunt. 81), the action was on a replevin bond, and there was a fatal variance in setting out the goods replevied, upon which the plaintiff was nonsuited; afterwards, on motion, the nonsuit was set aside on payment of costs. Bayley, J., said in this case, that "if he had been a judge of the court where the action was brought, he would have amended the declaration, pro tcmto, at the trial." Since the above decisions in England, a bill passed the Parliament (9 Geo. IV, o. 15), called Lord Tenterden's Act, which provides in very general terms for amendments at the trial, as to variances between any matter in writing or in print, produced in evidence, and the recital or setting forth thereof upon the record, &o. Under this statute it is discretionary to allow the amendment or not; and in Jelf v. Oriel (4 Oarr. &, Payne, 22), Lord Tenterden refused an amend- ment, where there was a variance which would not have occurred if common care had been used in drawing the declaration. But where there was a mistake in the date of a till of exchange declared on, the judge allowed the amendment. Bentzing v. Scott, 4 Oarr. & Payne, 24. So where a record of one court was set out as that of another. Briant v. Eicke, 1 Mood. & Malk. 359. It has been held, too, that this law waa applicable only to cases where some written instru- ment is professed to be set out or recited in the pleading. Accordingly, .in replevin, the defend- ant having avowed for rent in arrear, and alleged a tenancy on certain terms which varied from the lease. Park, J., would not permit him to amend, being, as he said, most clearly of opinion that the case did not fall within either the letter or spirit of the act. Eyder v. Malbon, 3 Oarr. & Payne, 594. Very recently, however, in Laney v. Bishop (4 Barn. & Adol. 4T9), where the declaration was upon a contract, but did not show whether It was in writing or not ; and, on the trial, it appeared to be in writing and variant from the one set out ; the court thought the case within the act, and so allowed the plaintiff to amend. And Denman, C. J., referred to a case decided in the Ooiirt of Common Pleas, which he considered, conclusive on the question presented. That was an action for disobedience to a subpoena ; the declaration stated, that the plaintiff caused to be left with the defendant a copy of the writ ; on the trial it turned out that the writ waa directed to the defendant and two others, while the copy left was directed to him and John Doe, the latter name not being in the original subpcena at all; and held, that the judge at his Nisi Prius might amend the declaration by inserting, instead of " a copy of the writ of subpoena," "a copy of so much of the writ of subpoana as related to the defendant." Maaterman v. Judson, 8 Bing. 224. "Looking to the object of this act," says Tindal, 0. J., delivering the opinion of the court, " which was, according to its title, to prevent a failure of justice by reason of variances between records and writings produced in evidence in support thereof we think it should receive a construction as liberal as the words will admit, and that the amendment now under considera- tion falls within the fair interpretation of the words of the act." Id. In Sew York also, a statute has been passed, similar in its purpose to the one above referred to. It provides that " Every variance between process, pleadings, or any instrument in writing re- cited or referred to in any other process, pleading or record, and every mistake in the name of any officer or other person, in stating any day, month or year, or in the description of any property, in any pleading or record which, according to law, could be amended by the court after verdict rendered in any cause, shall be disregarded upon the trial of such cause, unless such variance or mistake be calculated to surprise or mislead the adverse party, and to prevent his making due preparation for a full answer on the merits, to the matter concerning which such variance or mis- take shall have been made." 2 R. S. 406, § 49. There is obviously a defect in the . phraseology of this section, which renders its mean- ing somewhat obscure. "Every variance between process, pleadings, or any instrument in writing," recited and referred to elsewhere, is not easily understood; and we apprehend its true reading to be as follows: " Every variance between process, pleadings, or any instrument in writing;" and the recital of or reference to the same, "in any other process, pleading, or record," Ac. The term "written iustrument," contained in the above provision, has no technical meaning in our law, though it has in the Scotch. See Jacobs' Law Diet. Instruments, Instrument of Pre- monition, Instrument of Resignation. The only sigmfioation, in popular language, which would 872 The Substance only of the Issue needs le proved. [CH. xil. in any degree satisfy the statute, is one of those affixed to the word in Johnson's (4to) Diet., viz : "a writing containing any contract or order.'' We believe, however, that in order to accom- plish the intent of the legislature, the definition should be at least sufficiently broad to embrace all writings of every kind " recited or referred to " in the pleadings, and which are neceseary to be proved upon the trial. See Bevisor's Eep. part 3, ch. Y, pp. 39, 40. The term property, also contained in this statute, has a very extensive signification, both ia law and popular language. It comprehends real and personal property — ^property in possession and in action. The legislature probably intended to cover by it misdescriptions of personal prop- erty, as in trover, and of trespass of goods ; and of real property in ejectment, waste, Ac, which must now be very particular. 2 R. S. 304, § 8; Id. 334, § 5. See Borat v. Griffin, 9 "Wend. 307. "Whether it extends to the interest which the plaintiff has in the premises within the same statutes, quere. The variance contemplated, furthermore, is such an one as the court wovld allow the party to amend after verdict; and by 2 E. S. 425, § 1, sub. 10, mistakes in names, sums of money, de- scriptions of property, or in reciting any day, month, or year, may be so amended, provided the correct name, time, sum, or description, shall have been once rightly alleged. In the same ac- tion (sub. 14), it is provided that any default or negligence of a clerk or officer (rf the court, or of the parties, their counselors or attorneys, by which neither party shaU have been prejudiced, may in like manner be amended ; and by Id. § 8, all variances of the like nature as those enu- merated, may be amended after verdict. And before the above statute was passed, the Supreme Court had gone a great way in allow- ing amendments after verdict. Thus where, by a mere clerical mistake, the cause of action was laid after the commencement of the suit. Sargent v. Dennis, 2 Cowen's Rep. 515. So where the plaintiff had, by mistake, declared on and made profert of a bond, as under seal, whereas the seai had been torn off. Eees v. Overbaugh, 4 Cowen's Rep. 124. Also where oyer of a sealed instrument was wrong, although the defendant relied on moving in arrest, supposing the oyer right tin the trial. Daley v. Atwood, 1 Cowen's Rep. 483. And this simply on paying the costs of the motion ; it not appearing that the defendant was deprived, by the mistake, of a sub- stantial defence, but merely relied on the apparent defect. Id. So a declaration for notes in trover, which misdesoribed them, was allowed to be amended after verdict. Hoffnagle v. leavitt, 1 Cowen's Rep. 51t. But because the defendant, relying on the variance, had not prepared for a defence which he had on the merits, the amendment was granted, on condition that the plaintiff should consent to a new trial. Id. And where the defendant avowed as executor, when it should have been as devisee, by which he lost his defence at the trial, he was allowed to amend on payment of costs. "Wright v. 'WiUiams, 5 Cowen's Eep. 501. So, after nonsuit for not con- fessing lease, entry and ouster in ejectment, the Nisi Prius record was amended by inserting the defendant's name, in the place where it was usually inserted, before the allegation of entry and ouster ; and the court would not hear an affidavit of merits to prevent the amendment. Jack- son ex dem. Young v. Young, 1 Cowen's Rep. 131. "Where, in ejectment, the plaintiff was non- suited for a misdescription of the situation of the property, the court set aside the nonsuit. Jackson ex dem. Sinclair v. Bailey, 5 Cowen's Rep. 265. So where the plaintiff declared on a warranty of a bellows to blow three fires, and on the trial the proof was of a warranty to blow three fires for the term of one year, the court, to avoid the expense of a new suit, granted o, motion to amend after verdict, on the plaintiff consenting to a new trial and paying costs. Hull v. Turner, 1 "Wend. Rep. 12. In Lion v. Burtis (18 John. Rep. 510), the court recognize the difficulty of laying down any general rule with respect to allowing amendments after verdict, as every case must necessa- rily depend upon its own circumstances; and they say, "we do not intend to carrj"- the practice so far as to amend at the trial, but we mean to say that when a plaintiff has been nonsuited for a variance in the date of the instrument declared on, or for any other variance arising from cleri- cal mistake, we will set aside the nonsuit, and give leave to amend on payment of costs. There may be cases in which the judge at the trial will use a sound discretion in suffering the plaintiff to take a verdict, and put the party to his application to the court for amendment. It may be discreet to adopt this course, where the defendant has not been taken by surprise, and where his whole defence has been gone into, or where he is prepared to go into it. "We find but few decisions since the statute. One was a case of mere clerical mistake on the part of the plaintiff in setting forth a submission to arbitrators ; the judge at the circuit overruled CH. sii.J Of Amendments in Oivil Suits. 873 stated that the plaintiff in a certain term (naming the term and the year), by judgment recovered "as appears by the record," and the proof was that he recovered by a judgment of another term and a different year : the court held that this was not a material variance ; that the averment, " as appears by the record," was mere surplusage, and might be rejected, inasmuch as the judgment was not the foundation of the action, but only inducement to it. 6. Of amendments in civil suits. It is now proposed to consider the various modern enactments passed for the purpose of preventing failures of justice, caused by the rules rela- tive to variances in civil actions. Lord Tenterden's Act (9 Geo. IV, c. 15) provided a partial, though very limited, remedy upon the subject of variance. That act was passed for preventing a failure of justice, which is often occasioned by variances be- tween records and writings produced in evidence in support of the records. It recites, " that great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings pro- the objection taken by the defendant, and the plaintiff had a verdict. The defendant made a case in order to obtain a new trial, and the plaintiff moved to amend; the motion was resisted on an afSdavit of the defendant, stating that he had a meritorious defence, but that under the advice of counsel, relying upon the variance, he had not prepared for trial. Per Cw. Savage, C. J.: "The defendant swearing to a defence, and that, relying upon the variance, he omitted to prepare for trial, we cannot permit this verdict to stand. The defendant ought not to have availed himself of the technical error in the declaration; stiU, strictly, he might take the course which he has adopted, and all we can do is to relieve the plaiatiff, without subjecting him to costs. Let a rule be entered that the plaintiff have leave to vacate his verdict, and to amend his declaration without costs." Carpenter v. Payne, 10 Wend. E. 604, 605. Another case is that of Hess V. Fox, 10 Wend. B. 436, stated ante, note 234. In neither of them, however, does it ap- pear that any notice was taken of the statute, and consequently they furnish no guide as to its construction. **There has been a growing tendency in the courts for many years, to disregard variances where the adverse party has not actually been misled. It is not deemed necessary to add to the cases which illustrate that tendency, contained in the foregoing notes. The late Practice Code of the State of New York (Laws of 1848, p. 525), contains the following provisions, viz: § 145. " No variance between the allegation in a pleading and the proo^ shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. Whenever it shaE be alleged, that a party has been so mis- led, that fact shall be proved to (he satisfaction of the court, by affidavit, showing in what respect he has been misled; and thereupon, the court may order the pleading to be amended, upon such terms as shall be just." § 146. "Where the variance is not material, as provided in the last section, the court may di- rect the fact to be found according to the evidence, or may order an immediate amendment without costs." § 141. "Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof." All that is essentially new in these provisions, is the text contained in section 145, i. e. proof "to the satisfaction of the court, by affidavit, showing in what respect" the party has been misled.** See Notes to Vol. Ill of the text. 874 The Substance only of the Issite needs be proved. [CH. xil. duced in evidence and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case, and that such record cannot now in any case be amended at the trial, and in some cases cannot be amended at any time :" and then proceeds to enact, " that it shall be lawful for every court of record holding plea in civil actions, any judge sitting at Nisi Prius, and any court of oyer and terminer and general jail delivery in England, &c., to cause the record on which any trial may be pending before any such judge or court in any civil action, or in any indictment or information for any misdemeanor — when any variance shall appear between any matter in writing or in print, produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pending — to be forthwith amended in such particular by some officer of the court, on payment of such costs (if anj^) to the other party, as such judge or court shall think reasonable ; and thereupon the trial shall proceed, as if no such variance had appeared ; and in case such trial shall be had at Nisi Prius, the order for the amend- ment shall be indorsed on the postea, and returned together with the re- cord ; and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended accordingly." Under this statute it has been held that, in setting out a record of a judgment, a misstatement as to the court in which it was obtained may be amended ;(1) and that a mistake in the date of a bill of exchange(2) may be rectified. Civil actions. In the case of Masterman agt. Judson,(3) which was an action for not obeying a subpoena, the Court of Common Pleas held, that a declaration might be amended by inserting instead of " a copy of a writ of sub- poena," " a copy of so much of the writ of subpoena as related to the defendant." On the authority of this case the Court of King's Bench decided, in Lamey agt. Bishop,(4) that the statement of a contract might be made conformable to the written contract produced at the trial, as to the time for the performance of it, -though it did not appear in the declaration whether the contract was written or oral. And in Smith agt. Brandram,(5) (1) Briant v. Eioke, M. & M. 359. (2) Bentzing v. Scott, 4 0. & P. 24; Parks v. Edge, 1 0. & M. 429. Under the Code of New York, all such mistakes may be corrected on the trial ; for no variance is deemed material unless it has actually misled the opposite party. § 169 ; Egbert v. "Wicker, 10 How. Pr. R. 197 ; Oatlin v. Gunter, Id. 321 j 1 Keman, 368. Aud a manifest mistake may be disregarded, without amendment. Harmony v. Bingham, 1 Duer, 210. (3) 8 Bing. 480. (4) 4 B. & Ad. 419. (5) 9 Dowl. P. 0. 430. Where all the essential facts are put in issue by the pleadings, but the plaintiff proves a different CH. XII.] Of Amendinents in Civil Suits, 875 a material variance, in point of legal effect, between a contract of guar- anty produced in evidence, and the contract set out in the declaration, was held to be amendable within this act. The case of Lamey agt. Bishop appears to overrule an earlier decision of Park, J., at Msi Prius,(l) who held that a variance between the statement in an avowry of terms of a tenancy, and the proof produced in support of it, was not within the statute. The Court of Exchequer has held, that this statute was limited to cases where some matter in print or writing was produced in evidence, and did not apply to a variance between the statement of a writing in the plead- ings, and the secondary evidence of the writing. Thus, in an action for a libel, (2) where the libel, as set out in the record, imputed to the plaintiff " mismanagement or ignorance ;" and it appeared in evidence that the alleged libel had been contained in a letter which had been destroyed, and secondary evidence was given of its contents, from which it appeared that the expression was " ignorance or inattention ; it was held that this vari- ance could not be amended, and that it was fatal. In one case, Lord Tenterden, 0. J., is said to have- refused to amend the declaration, on the ground that the mistake arose from want of common care in drawing it :(3) but in many instances, it has been the want of com- mon care that caused the mistake ; and to prevent the failure of justice through such carelessness or ignorance, was one of the objects of the legis- lature in passing the act. Indictment. The reported decisions upon this statute, with regard to amendments in cases of misdemeanor, are very few, and are confined to indictments for perjury. The judges appear to have shown a disposition to make amendments in such cases but very sparingly,(4) upon the grounds, it seems, that by an amendment a presentment on oath by the grand jury is altered ; and that variances, by ordinary care in collation, might be avoided. (5) In one case, (6) where the indictment alleged that a judgment was en- oause of action from that alleged in Ma complaint, the court will order the pleadings to be prop- erly amended on the trial; and the plaintiff may recover on the cause of action proved, though the pleadings be not in form amended. Hall v. Gould, 3 Keman E. 121. (1) Eyder v. Malbon, 3 0. & P. 594. (2) Brooks V. Blanshard, 1 G. & 'il. 119. In Briant v. Eicke (ut swprd), an erroneous statement of a judgment was amended from the examined copy of the judgment produced in evidence ; but this, as will be seen hereafter, is primary evidence of a judgment. See Vol. II, Chap. 3, Proof of Eecords. (3) Jelf V. Oriel, 4 C. & P. 22. (4) By Patteson, J., T C. & P. 561 ; by Coleridge, J., 9 Id. 189. (6) By Coleridge, J., ut svpra.. (6) R. V. Cooke, 1 0. & P. 559. 876 • iTAe Svhstance only of the Issue needs he proved. [CH. Xll. tered up " in or as of Trinity Term, 5 Wm. IV," and the copy of tlie judgment was dated " June 26th, 5 Wm. IV,"(1) Patteson, J., after con- sulting witli Littledale, J., refused to amend the indictment. In another case, (2) where it was alleged that, under a commission to ex- amine witnesses. A., B., C, and D. were commanded to examine the wit- nesses, and it appeared from the commission, when put in, that A., B., C, and D., " or any three or two of them," were so commanded ; Coleridge, J., refused to amend the record by the insertion of the words that had been accidentally omitted. But in a later case, (3) where the indictment alleged that A. had pro- duced the affidavit of B., " intitled in the Court of Chancery, in a suit between the Oommissioners of Charitable Donations, &c., and J. D. ;" and the affidavit, when produced, was entitled, " In Chancery ; between the Commissioner of, &c.," Lord Denman amended the record by striking out the word " intitled." A much fuller remedy and more complete power of making amendments in civil actions v/as given to judges and courts of record, by the statutes 3 & 4 Wm. IV, c. 42. Allowing amendments to be made on the record in certain cases. The 23d section of that act recites, that " great expense is often in- curred, and delay or failure of justice takes place at trials, by reason of ^armnc6s,(4) as to some particular or particulars between the proof and the recital,{5) or setting forth on the record or document on which the trial is had, of contracts, customs, prescriptions, names, and other matters or cir- cumstances, not material to the merits of the case, and by the misstate- ment of which the opposite party cannot have been prejudiced, and the same cannot in any case be amended at the trial, except where the vari- ance is between any matter in writing or in print produced in evidence and the record, and that it is expedient to allow amendments to be made on the trial of the cause :" it then enacts, " that it shall be lawful for any court of record, holding plea in civil actions, and any judge sitting at Nisi Prius, if such court or judge shall see fit so to do, to cause the record, writ, or document, on which any trial may be pending before any such court or judge, in any civil action, or in any information in the nature of a quo warranto or proceedings on a mandamus, when any variance shall appear between the proof and the recital or setting forth on the record, writ or document on which the trial is proceeding, of any contract, cus- tom, prescription, name or other matter, in any particulars, in the judg- (1) Pursuant to the Rule of Court, Hil., 4 Wm. IV, No. 3. (2) R. V. Hewins, 9 0. & P. 186. (3) R. V. Christian, Oar. & M. 388. (4) " Vacancies," in the king's printer's copy. (5) "Record," in the king's printer's copy. CH. XII.] Of Amendments in Oivil Suits, 877 ment of such court or judge, not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution or defence, to be forthwith amended by some officer of the court or otherwise, both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which it may become necessary to amend, on such terms as to payments of costs to the other party, or postponing the trial to be had before the same or another jury, or both payment of costs and postponement, as such court or judge shall think reasonable ; and in case such variance shall be, in some particular or particulars, in the judgment of such court or judge, not material to the merits of the case, but such as that the opposite party may have been prejudiced thereby in the conduct of his action, prosecution or defence, 'then such court or judge shall have power to cause the same to be amended upon payment of costs to the other party, and withdrawing the record or postponing the trial aforesaid, as such court or judge shall think reasonable ; and after any such amendment the trial shall proceed, in case the same shall be proceeded with, in the same manner in all respects, both with respect to the liability of witnesses to be indicted for perjury, and otherwise as if no such variance had appeared ; and in case such trial shall be had at Nisi Prius, or by virtue of such writ as aforesaid, (1) the order for the amendment shall be indorsed on the postea or the writ, as the case may be, and returned, together with the record or writ ; and thereupon such papers, rolls and other records of the court from which such record or writ issued, as it may be necessary to amend, shall be amended accord- ingly ; and in case the trial shall be had in any court of record, then the order for amendment shall be entered on the roll or other document upon which the trial shall be had ; provided that it shall be lawful for any party who is dissatisfied with the decision of such judge at Nisi Prius, sheriff or other officer, respecting his allowance of any such amendment, to apply to the court from which such record or writ issued, for a new trial upon that ground ; and in case any such court shall think such, amendment im- proper, a new trial shall be granted accordingly, on such terms as the court shall think fit, or the court shall make such order as to them may seem fit." Special finding. The twenty-fourth section enacts, " That the said court and judge shall and may, in all such cases of variance, instead of causing the record or docu- ment to be amended as- aforesaid, direct the jury to find the fact or facts according to the evidence, and thereupon such finding shall be stated on such record or document, and, notwithstanding the finding on the issue joined, the said court, or the court from which the record has issued, shall, (1) 'Writ of trialbefore the sheriff under § IT. See as to amendment on trial of issues before the sheriff 1 Hill v. Salt, 2 C. & M. 420. 878 The Substance only of the Jssue needs be proved. [CH, xil, if they shall think the said variance immaterial to the merits of the case, and the mis-statement such as could not have prejudiced the opposite party in the. conduct of the action or defence, give judgment according to the very right and justice of the case.(l) The power of amendment given by this act extends only to civil actions, or informations in the nature of quo warranto, or proceedings on a mandamus. The variances which are amendable are those which appear between the proof — and the recital or setting forth on the record, writ, or document, on which the trial is proceeding — of any contract, custom, prescription, name? or other matter. Amendment how made. . The power of making amendments, is to be exercised, by causing the record, writ or document on which the trial is pending, to be amended by some of&cer of the court, or otherwise, in the part of the pleadings where the variance occurs, and in every other part of the proceedings which it may become necessary to amend. The judge is authorized to order such variances to be amended, in any 'particular which in his judgment is not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution or defence ; the terms on which the amendment is to be made, are payment of costs, or postponing the trial, or both payment and postponement, as the judge may think reasonable ; the amendment is to be forthwith made, and after amendment the trial to proceed (if it proceed) in the same manner in all respects as if no such variance had appeared. "WTiere variance may be prejudicial. Power is also given to the judge to direct amendments to be made, even in cases where the variance is in some particular by which the opposite party may have been prejudiced in the conduct of his defence, provided the variance is not material to the merits of the case. In these cases, the amendment may be made on payment of reasonable costs to the other party, and withdraw- ing the record, or postponing the trial. The power of amending in these latter cases, where the opposite party may have been prejudiced by the va- riance, is the same as that in the cases before mentioned, when the oppo- site party cannot have been prejudiced ; but the terms, on Avhich the amend- ment is be made, vary in some small degree — the power of ordering (1) Tlie Common law Procedure Acts of 1852 and 1854, have atill further amplified the au- thority of courts, and judges sitting at Nisi Prius, to correct errors and defects in civil proceed- ings, and make all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties, either with or without costs, a8 to the judge may seem fit. 16 & 16 Vict. o. 16, § 222, and 11 & 18 Vict. c. 125, § 96. CH. XII.] Of Amendments in Civil Suits. 879 the record to be withdrawn being given in the latter case, but not in the former. The words of the act, relating to the particular in which the amend- ment may be made, namely, where the variance appears " in any particu- lar or particulars in the judgment of the court or judge not material to the merits of the case," are very general and undefined. The words imme- diately following, which are specific, and which point to circumstances clearly connected with the merits of the case, " and by which the opposite party cannot have been prejudiced in the conduct of his action," &c., seem in- tended as an explanation or qualification of the more general expressions in the preceding clause. Those general expressions may at least be taken to relate to the substantive matter which the parties come to try, without reference to the precise terms of the defence.(l) If the judge allows an amendment, and one of the parties is dissatisfied with his decision, he may take the case before the court in banc ; and if they think the amendment improper, they have power to direct a new trial, or make such other order as they may think fit. But the court will not interfere, unless it plainly appears that the judge was wrong, or that the defendant was prejudiced by the amendment.(2) If the judge refuses to allow an amendment at the trial, the statute (ap- parently by an oversight) affords no remedy, and the court in banc will not interfere with his decision. (3) Lastly, if the judge at the trial wishes to avoid the responsibility of deciding upon the question of amendment, he may (under the twenty- fourth section), direct the jury to find the facts according to the evidence, and so leave the question as to the materiality of the evidence to the de- cision of the court iu banc. Where the facts are specially found under this section, it is not unusual for the parties at the trial to consent that the court shall have the same power to amend, if they think it a case for amendment, as the judge had at Nisi Prius ;(4) but, in the absence of any such consent, the court cannot amend the record, nor impose terms upon the party ultimately succeed- ing ;(5) nor, if they consider the variance material, can they expunge the indorsement of the special finding.(6) (1) See by Tindal, 0. J., 9 Dowl. P. 0. 406. (2) Sainsbury t. Matthews, 4 M. & W. 343. (3) See Doe d. Poole v. Errington, 1 A. & E. 150 ; 'Whitwill v. Soheer, 8 Id. 309 ; Jenkins v. Phillips, 9 C. & P. 168. But see PuUen v. Seymour, 5 Dowl. P. 0. 164. It has been doubted whether the court in banc has any power to revise the decision of a judge at Nisi Prius.with re- gard to allowing or refusing an amendment under the previous stat. 9 Geo. IT, o. 15. See Parkes v. Edge, 1 C. & M. 429. (4) See Parry v. Fairhurst, 2 C, M. & R. 190; cit. by Patteson, J., 5 A. & B. 126; Roberta v. Snell, 1 M. & G. 511. See, also, Chapman v. Sutton, 2 C. B. 634. (5) Guest V. Blwes, 5 A. & E. 118. And see Davis v. Dunn, 1 Dowl. (N. S.) SIT. (6) Knight v. M'Douall, 12 A. & E. 438. 880 The Substance only of the Issue needs he proved. [CH. Xll. The very large powers granted by this act for amending the record have enabled the courts to reduce the expenses of prolixity in pleading ; with this view, they have made rules prohibiting a multiplicity of counts and pleas. To prevent these restrictive rules from operating to the pre- judice of parties, it is necessary that the power of making amendments and correcting variances, should be exercised liberally, — at the same time exercised cautiously, so as not to prejudice either party on the real and substantial merits of the case.(l) In proportion to the strictness of the courts, on the one hand, in re- ducing the number of counts in declarations, must be, on the other hand, the liberality of exercising the power of amendment. The accuracy of a contract may be ambiguous, and it must be set out according to its legal effect : if a mistake is made, and the legal effect is misstated, great injury would be done by the rule which confines the plaintiff to one count, un- less the judge at trial should allow the error to be set right by amendment. And in case he entertains a doubt, the best course will be to allow, rather than disallow, the amendment ; for if he allows at the trial an amendment which ought not to be permitted, the statute provides a remedy ; but, as before stated, there is no remedy when the judge does not allow the amendment.(2) Amendment when to be made. An amendment of the record, at Nisi Prius, must be made (at least where the record is not withdrawn){S) during the trial, and before the verdict, except when both parties consent to an amendment afterwards. This construction of the statute may be inferred from those parts which speak of amendments to be made on the trial, and to be made forthwith, and of the document amended as that on ivhich the trial is proceeding, and still more strongly from the recital, that it is expedient to allow the amend- ments to be made on the trial of the cause. It has been decided that amendments cannot be made after verdict.(4) It is now proposed to consider respectively the cases in which amend- ments have been allowed under the statute, and in which they have been disallowed. 1. Cases in which amendments have been allowed. Amendments have been generally allowed where a contract, a duty, or other matter alleged in the pleadings, has been more general or more par- (1) See by Parke, B., 4 M. & "W. 347. See, also, Doe d. Marriott v. Edwards, 1 Moo. & R. 321 ; and by Tindal, C. J., 9 Dowl. P. C. 405. (2) See by Coleridge, J., 9 C. & P. 169. (3) See swpra, p. 879. (4) Doe d. Bennett v. Long, 9 0. & P. 11i ; Brashier v. Jackaou, G M. & "W. 549. But where the court grants a new trial, they may allow amendments, not under the statute, but by their common-law jurisdiction. See Doe d. Bacon y. Brydges, 6 M. & G. 350. CH. XII.] Amendments under 3 c& 4 Wm. TV, c. 42. 881 ticular than the proof adduced in support of it, or where there has been a misdescription of such contract or duty. The declaration in an action for a breach of warranty of a horse stated a general warranty ; to which the defendant pleaded non-assumpsit. Upon the proofs it appeared, that the warranty was sound except in one footP The breach of warranty complained of consisted in an unsoundness of wind. Alderson, B., amended the declaration, observing, that if the de- fence had depended in any way upon the qualification of the warranty, he would not have allowed it, as that would have gone to the merits. (1) So also in an action on the case for a false representation of the soundness of a horse, and the plea was not guilty, Alderson, B., amended the decla- ration, by substituting, for allegation that the defendant represented the horse to be sound and a good worker, an allegation that the defendant rep- resented the horse to be sound in the wind.(^) Where a declaration alleged a general custom in a trade for a master to pay certain expenses for a journeyman, and the ' custom proved was, that there were certain exceptions to the master's liability, the declaration was amended by the insertion of these exceptions, as proved.(3) In an action upon a wager that a railroad would be completed by a certain time, " for the general conveyance of passengers ;" these words were struck out of the declaration, the wager that was proved being that the railroad would be comjoleted by that time ; as that was construed tb mean that the railway should be complete, so as to be in public use.(4) In an action for the use and occupation of " standings, market places, and sheds," an agreement was put in relating to a demise of " tolls " by the plaintiffs to the defendant ; the declaration was amended by the in- sertion of the word " tolls."(5) Where the plaintiff declared upon a promise that the defendant should lay out a sum of money in the purchase of a government annuity, and the proof was that the money was intrusted to him to lay out in a government security, the variance was held to be amendable ;(6) the only difference between the allegation and the proof being, that the former stated that the money was to be laid out in a particular government security, and the latter showed that it was to be invested in some government security ; and the ground of complaint was that it was not laid out in any government security .(7) (1) Hemming v. Parry, 6 0. & P. 580, commenting upon Jones y. Cowley, 4 B. & 0. 446, under the old state of the law. (2) Mash v. Densham, 1 Moo. & B. 442. (3) Read t. Dunsmore, 9 0. & P. 588. (4) Evans v. Fryer, 10 A. & E. 609. But see 8 & 9 Viot. o. 109, § 18, by' which no aition win now lie upon a wager. (5) Carmarthen (Mayor, &o). v. Lewis, 6 0. & P. 608. (6) Gurford v. Bayley, 3 M. & G. 781. (7) See by Maule, J., 3 M. & G. V82. YOL. I. 56 882 The Substance only of the Issue needs be proved. [CH. XII, A statement in a declaration of a contract to pay for certain goods to be delivered, has been altered to a statement of a contract to guaranty pay- ment for tLem.(l) Where the contract alleged was that the defendant should build on a certain spot of ground, a room, booth or building, and fit it up according to certain plans agreed upon, for £20, by the 28th of June, and the contract proved, which was a verbal agreement, was that the defendant should place upon a plot of ground, hired by the plaintiff, certain seats and tables, to be completed _;?)wr or five days before the 28th of June, for £25, and it did not appear that there were any plans agreed upon, the judge at the trial directed the declaration to be amended in conformity with the contract proved ; and the court above refused a new trial, (2) considering it to be exactly the sort of case which the statute meant to provide for, though, as was urged, the contract as proved differed from that alleged, in the nature of the work to be done, in the time for doing it, and in the price.(3) In one case, (4) the variance was between a contract for certain poles to be paid for on delivery, and a contract to pay cash on delivery with five per cent, discount. It further appeared that part had been delivered. An application to amend was opposed on the ground, that, if the contract had been stated properly, the defendant might have been prepared to show, that he rescinded the contract on the plaintiff's refusal to pay on the first delivery. Alderson, B., allowed the cause to proceed, and nothing ap- pearing to show that the defendant rescinded the contract on that ground, the learned judge directed the amendment, and the plaintiff had a verdict. When an averment in the declaration may be properly considered as a statement of the legal effect of a contract, and not as a substantive part of the contract, it may be amended, and the statement as to the legal effect may be made conformable with that which is proved. Thus, where the declaration on a charter party, after setting out that part of the contract which related to the voyage, alleged a promise to have an agent at a place named, to give orders, &c. ; but this allegation was not (as was intended) a correct statement of the legal effect of the charter party ; it was struck out, and another more correct statement was inserted. (5) Where a declaration upon an agreement to refer stated that the costs of the reference and the award were to abide the event, and it appeared that the agreement also provided for the costs of making the agreement a rule of court, an amendment was permitted. (6) (1) Hanbury v. EUa, 1 A. & E. 61. (2) Ward v. Pearson, 6 M. & W. 16. See Sainsbuiy v. Matthews, 4 Id. 343 ; Clark v. Mor- rell, 1 M. & G. 841, for other examples of amendment in the statement of a contract. (3) See Beckett v. Button, 7 M. & W. 157, infra, p. 883. (4) Ivey V. Young, 1 Moo. & R. 646. (B) WhitwUl V. Soheer, 8 A. & B. 301. But see Bowers v. Nixon, 2 0. & K. 372, infra, p. 887. (6) Duckworth v. Harrison, B M. & "W. 427. CH. XII.] Amendments under 3 c& 4 Wm. IV, c 42. 883 In an action on tlie case against the defendants, as carriers, for negligence in conveying the plaintiff's goods; the defendants pleaded not guilty. Upon the evidence, it appeared that the defendants, if liable at all, were liable only to forward the goods as wharfingers. No application was made for an amendment until after the defendant's case was closed, and the plaintiff's counsel was about to reply. The judge refused to amend, but left to the jury the question of the liability of the defendants as wharfin- gers. Tlie jury finding this question in favor of the plaintiff, the judge directed the verdict on the unamended issue to be entered for the defend- ant, and the special finding of the jury to be indorsed on the record, in order that, if the court should be of opinion that the amendment ought to have been allowed, the declaration might be altered and set right. There were special circumstances in the case showing that the defendant might have been prejudiced in the conduct of his defence. The court made the rule absolute for a new trial on payment of costs ; Parke, B., observing that under the circumstances, he should have exercised the power of amend- ment given by the statute, postponing the trial to another day to enable the defendants to show the fact (notice of limited liability), which might have exonerated them altogether.(l) Where an agreement was stated in the pleadings to have been made between the plaintiff and the defendant, and the agreement produced was between the plaintiff on the one part, and the defendant and two others on the other part, but was signed only by the plaintiff and the defendant, an amendment was allowed. (2) So where a guaranty was alleged to be that the defendant would repay certain advances that might be made by the plaintiffs as members of a banking firm, and the guaranty in proof was, that the defendant would repay the advances made by the plaintiffs " or any other persons of whom the firm might from time to time consist," the declaration was amended so as to correspond with the evidence.(3) Amendments have also been allowed where an instrument declared upon as a bill of exchange has appeared to be a promissory note ;(4) and where a promissory note was alleged to have been made by the defendant, dated the 9th November, 1838, payable on demand, and the note produced was a joint and several note made by the defendant and his wife, dated the &th December, 1837, payable twelve months ajter date.{5) (1) Parry v. Fairhurst, 2 C, M. & B. 190. See Guest v. Elwes, 5 A. & E. 118, an action against the sheriff for an escape ; where an omission to arrest was proved, and an amendment allowed. (2) Boys V. Anoell, 5 Jf. C. 390. (3) Chapman v. Sutton, 2 0. B. 634. See, also, Boyd v. Moyle, Id. 644. But see Boucher v. Murray, 6 Q. B. 362, infra, p. 886. (4) Moilliet V. Powell, 6 C. & P. 233. The case -was undefended. In the same case, Alder- son, B., also allowed an amendment of the judge's order, which had been obtained for admitting the handwriting of the defendant and the indorsers of the instrument. (5) Beckett v. Button, 7 M. & "W. 157. See Ward v. Pearson, 5 M. & W. 16, supra, p. 881. 884 The Substance only of the Issue needs he proved. [CH. xil. In an action of trespass,(l) in wMch issue was joined on the plaintiff's property in a close named specifically, but incorrectly, in the declaration, Coleridge, J., allowed the name to be set right. So, a misstatement of the name of a parish has been amended in an action of ejectment ;(2) and in a similar action,(3) where it appeared that the day on which the right of entry accrued, was subsequent to the day of the demise in the declaration (being the Monday immediately after), Parke, B., allowed the declaration to be amended, and the date of the demise to be altered to the day pre- ceding ; and the Court of Common Pleas afterwards were of opinion that the judge had power to make this amendment. The lord chief justice said : " There was a variance between the allegation in the record and the proof, and this was amendable under the act. The moment the amend- ment is made, the declaration is to be considered to have been always in its amended form, and the consent rule adapts itself to its terms." In this case, where the ejectment was brought for a forfeiture, the lease giving the right of re-entry was produced, and the amendment was made according to it ; but a similar amendment will be allowed, though there is nothing to amend by, beyond the necessity of the amendment to maintain the plaintiff's right of action.(4) In an action of slander,(5) where the defendant pleaded not guilty, and the variance was (according to the evidence produced at the trial) that the defendant said he had heard that the plaintiff was to be tried, &c., instead of saying (as represented in the declaration) positively, and as from his own knowledge, that the plaintiff was to he tried ; the Court of Common Pleas were of opinion that an amendment had been properly made at the trial. "It may be difficult," said Tindal, C. J., "to give any very exact meaning to the words of the act, '■'merits of the case" in an action of this sort ; but it may be taken to mean the substantive matter which the par- ties came to try, without reference to the precise terms of the defence ; and therefore the act will clearly apply to this amendment, so as to sup- ply the place of those various allegations which formerly would have been introduced into the declaration, in order to meet every contingency which might arise." With regard to the other words of the same act, " hy which the opposite party cannot have been prejudiced," his Lordship said, " there could not be any prejudice in this case by amending the declaration, be- cause the witnesses who would be called, either to prove or disprove the (1) Howell T. Thomas, 1 Moo. & R. 342. (2) Doe d. Marriott v. Edwards, -6 0. & P. 208 ; S. C, 1 Moo. & R. 319. (3) Doe d. Edwards v. Leaoh, 3 M. & G. 229. (4) Doe d Silnpsbil v. Hall, 5 M. & G. 195. But see Doe d. Parsons v. Heather, 8 M. & W. 168 ; Doe d. Poole v. Errington, 1 Moo. & R. 343 ; S. C, 1 A. & E. 160, post, p. 888. It may be remarked that similar amendments were made in ejectment before the statute. See Doe d. Hardman v. Pilkington, 4 Burr. 2441 ; Doe d. Bumford v. Miller, 1 Chit. R. 536. (6) Smith V. Knowelden, 2 M. & G. 561. CH. XII.] When Amendments refused. 885 fact of the words being spoken, -would be just the same, whether one set of words was used or the other." In another action for slander, (1) the slanderous words were set out in English, but the words proved to have been spoken were Welsh, of the same meaning ; an amendment was allowed to be made (upon terms), by inserting in the declaration Welsh words, 'which were the exact Welsh translation of the English words, set out in the declaration. So in an action for a libel, (2) alleged to have been " contained in a cer- tain weekly newspaper, called," &c., where the proof was that the defend- ant had given a slip of paper containing the libelous matter to several persons to read, but it did not appear that it was cut from the newspaper named, an amendment was allowed by striking out the allegation in question. An amendment will even be made by adding a count to the declaration, as e. g. a count for goods sold and delivered, where it was proved that such a count was in the declaration and issue delivered, (3) and that the omission was entirely casual ; or, under similar circumstances, the words " by statute " might be added to a plea of " not guilty ."(4) Where the declaration alludes to "the commencement of the suit," but the record does not contain the date of the writ of summons, the plaintiff may be allowed to amend by annexing the writ to the record.(5) In an action on a banker's check, where the declaration alleged notice of dishonor, but the facts proved did not support that allegation, although if properly alleged they would have amounted to an excuse for the want of notice, Parke, B., postponed the trial, and gave the plaintiff leave to amend upon terms.(6) In an action upon a bill of exchange, where the plea alleged that the bill was accepted in satisfaction of money lost by gaming and playing at vingt-un, and also by playing at hazard, the plea was amended by strik- ing out the allegation as to the game of vingt- un, there being no evidence to support that allegation.(7) And in a similar plea, an amendment was allowed in the statement of the name of the game.(8) 2. Cases in which amendments have been refused. The statute of 3 & 4 Wm. IV, c. 42, it seems, gives no power to siipply a material omission in the pleadings. In an action of trespass for taking two different articles of property,(9) Parke, B., refused to amend a plea (1) Jenkins v. Phillips, 9 C. & P. '766. (2) Foster v. Pointer, 9 C. & P. 718. (3) Emest v. Brown, 2 Moo. & R. 13. (i) See Forman v. Dawes, Car. & M. 127. (5) Cox V. Painter, 1 C. & P. 161 ; S. C, 6 A. & B. 491. (6) Jackson v. Oarrington, 2 C. & K. 150. (1) Cooke V. Stratford, 13 M. & W. 379. (8) Marten t. Barrett, 2 C. & K. 717. (9) John V. Ourrie, 6 0. & P. 618. 886 The Substance only of the Issue needs he proved. [CH. SII. ■wliicli justified the taking of the one article by extending the justification to the other also. And in action of replevin, in respect of goods taken in a house and brewery, where the avowry was confined to the goods in the house, an amendment was refused.(l) Nor does the statute give any authority to amend the award of venire on the Nisi Prius record :(2) nor to strike out the name of a co-defendant who was not fixed by the evidence ;(3) nor to increase the amount of damages laid in the declaration. (4) But in an action on a bond in which the penalty was laid at £260, an amendment of the amount to £200, thereby diminishing the sum claimed, was held to be proper.(5) An amendment, which would introduce an entirely new contract and new breach, is not within the statute. Thus, where the declaration stated that the plaintiff became and was tenant to the defendant of a messuage, on terms contained in articles of agreement between them, whereby the defendant agreed to grant a future lease ; and that the defendant promised that the plaintiff should hold and enjoy without eviction ; and alleged as a breach that one B. having lawful title, evicted the plaintiff; it was held(6) that amendments could not be made in order to treat the agree- ment, not as an actual demise, but merely as an agreement for a future lease ; and to make the breach consist, not in the eviction of the plaintiff, but in the defendant's not having a title to grant a lease. So where a declaration on a guaranty stated that, in consideration that the plaintiff would make advances of money to B., the defendant promised to repay the plaintiff such sum if B. should make default, the breach being that B. did make de(ault, and the defendant did not repay the plaintiff; and the plea was, that the plaintiff did not make the advances to B. ; it was held that the record could not be amended, by stating in the declara- tion the consideration to be, that the plaintiff would procure the B. and A. bank, in which the plaintiff was a partner, to make advances of money to B., and the defendant's promise to repay the banh, and the breach that the defendant did not repay the banh ; and in the plea, that the plaintiff did not procure the bank to make the advances.{7) (1) Bye T. Bower, Car. & M. 262. As to casual omissions in copying the record, see Ernest v. BrowD, 2 M00..& E. 13 ; Porman v. Dawes, Oar. & M. 127, supra, p. 885. (2) Adams t. Power, I C. & P. 16. Such an amendment must be made by a judge at cham. bers. Id. (3) Cooper v. 'Whitehouae, 6 C. & P. 545. (4) Watkina v. Morgan, 6 C. & P. 661. In Doe v. Katz (8 Id. 315), Lord Denman, C. J., before the cause was called on, allowed the amounts mentioned in the counts in an action of debt to be altered from £100 to £200, where the particulars of demand claimed £163. But this was done by the consent of the defendant's counsel, and without reference to the statute. (5) Hill V. Salt, 2 0. (it M. 420. (6) Brashier v. Jackson, 6 M. & W. 549. (7) Boucher v. Murray, 6 Q. B. 362. But see Chapman v. Sutton, 2 C. B. 634, supra, p. 883. CH. XII.] When Amendments refused. 887 Even the introduction of entirely new matter seems objectionable. Thus, where to action upon a promissory note, the defendant pleaded that the plaintiff had received another note from the defendant and a third person, in satisfaction of the note declared on ;(1) and it appeared in evidence that this other note had been received in satisfaction, not of the note declared on, but of an intermediate note, which had been given by the defendant alone, in satisfaction of the note declared on ; it was held that the judge at the trial had no power to amend the plea by the substitution of a de- scription of the intermediate note. Although, as has been seen, (2) where a party states the legal effect of a contract, an amendment will in general be allowed, to make the statement conformable to the legal effect of the contract proved ; yet the power of amendment will not be exercised where a party has designedly framed his pleading in a manner which gives rise to the objection ; thus, if a deed were recited according'to what a party contended was its legal effect, and the judge should decide that was not its legal effect, it seems this is- not a case for amendment.(3) If a covenant in a lease is alternative, that the tenant shall do one of two things, and the plaintiff in an action upon' the covenant assign as a breach an omission to do one of the two things only, the judge ought not to amend the declaration by adding the rest of the covenant, if there are other issues 'which it would be difficult to adapt to the amended decla- ration.(4) An amendment of the declaration will also be refused, if it appears probable that the variance may have prevented the defendant from plead- ing a good bar to the action ;(5) or if the amendment in the declaration is one wMch might have induced the defendant to plead different pleas, or to demur.(6) Thus, in an action of covenant by the assignee of the re- version against the personal representative of the lessee, where the decla- ration set out a deed purporting to be attested hy two witnesses, whereby one J. P., in pursuance of a power, appointed the premises to the plaintiff, and the defendant traversed the appointment ; it appearing at the trial, that one of the attesting witnesses was the wife of the appointee, and that the deed was void as not being executed in pursuance of the power, the court expressed a strong opinion that the declaration could not be amended (1) Daniel v. Preece, 5 Q. B. 440. (2) WhitwiU T. Soheer, 8 A. & B. 301, supra, p. 882. (3) Bowers v. Nixon, 2 C. & K. 372. (4) Biohards v. Bluok, 6 C. B. 43V. (6) Ivey v. Toung, 1 Moo. & E. 545. (6) See by Maule, J., 3 M. & a. 784, 785. 888 The Suhstonce only of the Issue Tieeds be provrd. [CH. xil. at Nisi Prius, by stating the deed as operating, eitlier by way of grant or as a covenant to stand seized to uses.(l) Where the plaintiff complained of an injury sustained by the diversion of a watercourse, the right to which he claimed in respect of a mill, and the defendant traversed the right to the watercourse ;(2) it appeared at the trial, before Alderson, B., that the mill was of modern erection, and that therefore the plaintiff's claim to the water was not in respect of the mill, but ex jure naturce, in right of the stream running to his land, and of an antecedent appropriation of the water by the plaintiff before the erection of the mill. An application to amend the declaration was refused, but the learned judge directed a special finding under the 24th section, that the defendant had diverted the water from its accustomed and proper course to the plaintiff's premises, as they existed before the mill was erected. The verdict was entered for the defendant on the issue. On a motion for entering judgment for the plaintiff "according to the right and justice of the case," the court refused the rule as prayed for, saying, that the vari- ance was material, and that the defendant might have prepared his de- fence to meet the claim made in respect of the mill, and not of the land.(3) In an action of ejectment,(4) where the demise was joint hj two lessors of the plaintiff, it appeared that they claimed as tenants in common : an application was made to amend, by striking out the name ef one of the lessors of the plaintiff, or adding proper words applicable to the title as it appeared. Taunton, J., refused the application, being of opinion that the amendment was in a particular very material to the merits of the case.(5) Where a declaration in ejectment omitted the year of the demise, though it mentioned a day, it was held that the judge at the trial had improperly amended it by inserting the year, according to the title as proved.(6) It has been seen what amendments will be allowed in actions for slander and libel ;(7) but where innuendoes have been improperly introduced in (1) Perry v. 'Watts, 3 M. & G. 'TIS, explained by Maule, J., ui supra. An arrangement was ultimately come to between the parties. (2) Frankum v. Falmouth (Earl), 6 C. & P. 529 ; S. C, 2 A. & E. 451. (3) 2 A. & E. 455. (4) Doe d. Poole v. Brrington, 1 Moo. & R. 343. (5) See Doe d. Bacon v. Brydges, 3 M. & G. 304. It may, perhaps, be doubted, whether the decision in Doe d. Poole v. Brrington would now be acted upon. It followed very soon after the passmg of the statute. (6) Doe d. Parsons v. Heather, 8 M. & W. 158. The plaintiff, however, is not prejudiced in such a case, as the omission is not a ground of nonsuit. The proper course for » defendant, under such civcumstances, is to apply to the court to ooippel the plaintiff to insert the correct date. By Parke, B., Id. (1) Supra, p. 885. CH. XII.] Of Variances in Criminal Cases. fhe declaration; the judge will not amend the record by striking them oat.(l) It has been said by Lord Denman, 0. J.,(2) that the statute does not apply to the amending of pleadings so as to remove objections which would have been good in arrest of judgment ; its object being to prevent nonsuits on variances, and not to make pleadings good which are vicious in themselves ; but this observation was extra-judicial, and it has since been decided by the Court of Common Pleas(3) that the authority of the judge to amend is not affected by the circumstance that the amendment would deprive the defendant of a ground of motion in arrest of judgment ; if he means to avail himself of an arrest of judgment he should not urge the point of variance. (4) Where a declaration, after reciting two several contracts between the parties, alleged that they agreed to consolidate them, but the several con- tracts alone were proved in evidence, and the fact of an agreement to con- solidate was negatived : it was ruled that the variance was fatal, and that the declaration could not be amended.(5) > 7. Of variances in criminal cases. Proof of time. The rule that it is not necessary to prove the time precisely as Iftid, unless that paitictdar time is material, is the same in criminal as in civil cases.(6) This is the constant course of proceeding in criminal prosecu- tions from the highest offence to the lowest ; although every material fact must be alleged in the indictment to have occurred on a day certain and iat a particular place.(7) It is suf&cient -if the offence with which the party is charged is proved to have occurred before &e finding of the bill by the grand jury. In high treason, evidence may be given of an overt act either before or after the day specified in the indictment ; the particu- lar day is not material in point of proof, and is merely matter of form. Objections of this kind, on behalf of the prisoner, have been repeatedly overrUled.(8) (1) Pmdhome v. Eraser, J Moo. & R. 435. (2) In Atkinson v. Raleigh, 3 Q. B. 19, 86. See, also, by Pattsson, J., Id. As to amending a plea, pleaded to two counts, so as to make it applicable to one only, see Oallendar v. Dittrich, 4 M. & G. 68, (3) Harvey V. Johnston, 6 0. B. 295. (4) By "Wilde, 0. J., Id. 298. (5) Moncrieff V. Reade, 2 0. & K. TOS. (6) /Sfapras, p. 854. (t) See R. V. Holland, 5 T. R. 624; R. v. Haynes, 4 M. & S. 214 j E. v. O'Connor, 5 Q. B. 16. See, also, Y Geo. IT, c. 64, § 20. (8) Lord Balmarino's Case ; Lord Kilmarnock's Case ; Townley'SiCase | How. St. Tr. ; iPoat. 8. See R. T, I(eyey, % Stark. B. 458, aa to a misdeifteanor. See, also, R. v. Trehame, I Moo. Cr. 0. 890 The Substance only of the Issue needs be proved. [CH. XII. Proof of place. On the trial of an indictment, for an offence of a transitory nature, sucli as treason, murder, larceny, or even higkway robbery,(l) it will be sufficient to show, that the offence was committed in some place within the juris- diction of the court. Mr. Sergeant Hawkins says,(2) it seems to be agreed, that the mistake of the place, in which an offence is laid, will not be material upon the evidence, of the plea of hot guilty, if the fact be proved at some other place in the same county. Even if there should appear to be no such parish in the county, as that laid, it has been doubted whether the indictment would be bad.(3) 298, where the offence was alleged to have been committed before the passing of the statute upon which the prisoner was tried. NoTB 248. — The authorities are uniform in support of the doctrine contained in the text. 2 Hawk. P. C, b. 2, o. 46, § 169 ; 2 Inst. 218 ; 3 Id. 230 ; 1 Hale's P. C. 361 ; 2 Id. 119 ; Mac- naUy's Ev. 496, 49f , et seq. ; The State v. Hanney, 1 Hawks' Eep. 460 ; Commonwealth v. Har- rington, 3 Pick. 26 ; 4 Starkie's Ev. 1568 ; Starkie's Orim. PI. 58. But where the date of a, particular fact is necessary to ascertain with precision the offence charged, it must be proved as alleged. 10 Petersd. Abr. 508, note. So, where a day is averred, by way of desoribmg a written instrument. Id. And see note 24Y. (1) See E. V. Dowling, Ey. & M. Or. C. 433. (2) Bk. 2, oh. 25, § 84. (3) E. V. DowUng, ut infra; E. v. Woodward, Ey. & M. 0. C. 323 ; E. v. Perkins, 4 C. & P. 363. But see 9 H. T, st. 1, c. 1. Note 249. — This, however, is only so where the place is laid as mere matter of venue. But if a certain place is made part of the description of a fact charged in the indictment,, the least vari- ance as to such place will be fatal ; as where a trespass in taking away goods, or other offence, is alleged in such a parish,-in the house of J. S., or in such a parish, in a play-house in Lincoln's inn fields ; and upon evidence it appears to have been done at the house of a different person, or that there is no play-house in Lincoln's inn fields. Hawk. P. 0. b. 2, c. 46, § 111 ; Maonally's Ev. 501. In Eegina v. Carnage (3 Salk. 385), the defendants were indicted for riotously assembling at the parish of St. Giles, in the fields, and breaking and entering the bedchamber of Sarah S., in the dwelling-house of D. James, and taking and carrying away certain goods. Upon evidence, it appeared to be the dwelling-house of D. Jameson; and held, that though part of the offence was transitory, viz: the taking and carrying away the goods, yet the other part being local, and the whole being put together as one entire fact, under one description, the variance in respect to the dweUing-house was fatal to the prosecution. Mr. Starkie doubts the propriety of this decision, and suggests a quere, whether, under such circumstances, the defendant might not be convicted of that which is merely transitory, though the prosecutor fail as to the local part (4 Starkie's Evidence, 15'71, n. e); but he cites no authority showing that the case haa been overruled. "Where the offence charged is of a local nature, as in burglary, &o., whatever is alleged by way of describing the place where it was committed, must be proved as laid (Eex v. White, East's P. C. '780 ; Eex v. Woodward, Id. ; The State v. Martm, 3 Murph. 533) ; and though the descrip- tion be more particular than was necessary, the whole must be established. Eex v. Owen, Ey. & Mood. Cr. Cas. 118. But where locality does not enter into the substance of the charge, and the deaoriptiou is wholly immaterial, it may be rejected as sui^plusage, and a variance will not be fatal. Though the allegation of place be intended only as venue, it is nevertheless so far important, that the prosecutor must prove the offence charged to have been committed in the county where CH. XII.] Amendments in Criminal Cases. 891 Where, however, the cffence is of a local character, such as riotously demolishing churches, &c.,(l) maliciously firing a dwelling-house,(2) and the like, if there is no such place as that laid in the indictment, the pris- oner naust be acquitted ; unless the local offence with which he is charged includes a transitory offence, when the prisoner, though he must be ac- quitted of the former, may be convicted of the latter ; thus upon an in- dictment for burglary, or housebreaking, (3) or stealing in a dwelling house,(4) if the locality of the premises is wrongly described, the prisoner cannot be convicted of the major offence, though he may be of a simple larcen}^ Allegations in indictments as to value are not material, especially since the distinction between grand and petty larceny has been abolished ;(5) except where the value is essential to constitute the offence, — as in the case of a bankrupt concealing property to the amount of £ 10.(6) 8. Of amendments in criminal cases. The power to amend variances in criminal cases has, probably from an erroneous notion of lenity, been much more tardily given by the legislature. The statute 7 Geo. lY, c. 64, related to some technical defects and im- the venue is laid ; and if this be not made out, or the contrary be shown in evidence, the de- fendant -will be acquitted, except where a different rule has been provided by statute. See 1 Chitty's Grim. Law, 111. In larceny, however, if property ia stolen in the county of A., and carried into the county of B., the offender may be convicted in the latter place, under an indict- ment charging the offence to have been committed there (Hawk. P. C. b. 1, o. 151) ; and it has been a question in some of our courts whether the same doctrine applied to the case of property stolen in one state and carried into another. In Massachusetts the course of decision has been uniform that it did. Commonwealth v. Cullens, 1 Mass. Hep. 116 ; Commonwealth v. Andrews, 2 Id. 14. And the solicitor-general, in the case last cited, referred to another which Dana, C. J., said he remembered ; it was that of Paul Lord, who broke open a, shop in Rhode Island, and stole goods which he brought into York county, Massachusetts, where he was indicted as for a theft committed there ; and it was determined by the whole court, five justices being present) that he might be convicted of the larceny, though not of the shop breaking. In New York, however, until recently a contrary doctrine has prevailed. The People v. Gardner, 2 John. Rep. 477. But now it is expressly provided by statute, that "every person who shall feloniously steal the property of another in any other state or country, and shall bring the same into this state, may be convicted and punished ni the same manner as if such larcency had been com- mitted in this state ; and in every such case, such larceny may be charged to have been com- mitted ia any town or city, into, or through which such stolen property shall have been brought." 2 R. S. 698, § 4. See The People v. Burke, 11 Wend. 129. (1) R. V. Richards, 1 Moo. & R. Itt. (2) R. V. "Woodward, ut supra. (3) R. V. St. John, 9 C. & P. 40 ; R. v. Bullock, cit. 1 Moo. Cr. C. 324, n. ; R. v. Brookes, Car. & M. 543 ; S. C, 2 Russ., Cr. & M. by Greaves, 801. (4) R. V. Napper, 4 Moo. Cr. 0. 44 ; R. v. Jackson, 2 Russ., Cr. k M. 801. (5) By Y & 8 Geo. IT, c. 28. (6) Under 6 Geo. IV, c. 16, § 112. See R. v. Forsyth, Russ. & R. Cr. 0. 274. 892 The Substance only of the Issue needs be proved. [CH. xil. material averments in indictments and informations either in cases of felony or misdemeanor. The nineteenth section enacted that no indictment or information should be abated by reason of any dilatory plea of misnomer, or want of addi- tion, or of wrong addition, if the court should be satisfied, by af&davit or otherwise, of the truth of such plea ; but in such case the court should forthwith cause the indictment or information to be amended according to the truth, and should call upon such party to plead thereto, and should proceed as if no such dilatory plea had been pleaded. Under this section, where a woman was indicted for the murder of her husband, and was de- scribed as " Ann, the wife of J. 0.," the judges at the trial ordered an amendment by striking out the word " wife " and inserting the word " widow."(l) The twentieth section enacted, "that no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default or otherwise, shall be stayed or re- versed for want of the averment of any matter unnecessary to be proved ; — nor for the omission of the words 'as appears by the record ;' or of the words ' with force and arms ;' or of the words ' against the peace ;' — nor for the insertion of the words ' against the form of the statute ;' instead of the words ' against the form of the statutes,'' or vice versa; — nor for that any person is therein designated by a name of ofiS.ce or other descriptive appellation instead of his proper name ; — nor for omitting to state the time of the commission of the offence where time is not of the essence of the offence ; — nor for stating the time imperfectly, — nor for stating the offence to have been comniitted on a day subsequent to the finding of the indict- ment, or the exhibiting of the information, or on an impossible day, or a day that never happened ; — nor for want of a proper or perfect venue, where the court shall appear to have had jurisdiction over the o£fence."(2) Lord Tenterden's Act (9 Geo. IV, c. 15), gave the same powers, in trials for misdemeanor, for amending variances between matters in writing (1) R. V. Orchard, 8 0. & P. 565. (2) Before this statute, judgment waa continually arrested upon indictments for the causes above enumerated. Note 250. — In New Tork, it is also provided by statute that no indictment shall be deemed invalid, nor shall the trial, judgment or proceedings thereon be affected, 1st. By reason of hav- ing omitted the addition of the defendant's title, occupation, estate or degree ; or by reason of the misstatement of such matter, or of the town or county of his residence, when the defendant shall not be misled or prejudiced by such misstatement ; or, 2d. By the omission of the words *' with force and arms," or words of similar import; or, 3d. By reason of omitting to charge any offence to have been committed contrary to a statute or several statutes, notwithstanding such offence may have been created or the punishment thereof may have been declared by any statute ; or 4th. By reason of any other defect or imperfection in matter of form, which shall not tend to the prejudice of the defendant. 2 B. S. 728, § 52. OH. XII.] Amendments in Criminal Cases, 893 as averred and as proved, as were given in civil actions.(l) This statute did not extend to felonies, and in these cases, till a very recent period, no amendment was allowed. But by the statute 11 & 12 Vict. c. 46, § 4, it was enacted " that it shall and may be lawful for any court of oyer and ter- miner and general jail delivery, (2) if such court shall see fit so to do, to cause the indictment or information of any offence whatever, when any variance or variances shall appear between any matter in writing or in print produced in evidence and the recital or setting forth thereof in the indictment or information whereon the trial is pending, to be forthwith amended in such particular or particulars by some officer of the court, and after such amendment the trial shall proceed in the same manner in all respects, both with regard to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance or variances had ap- peared." And now at length Lord Campbell's Act (14 & 15 Vict. c. 100), "for further improving the administration of criminal justice," after reciting that " offenders frequently escape conviction on their trials, by reason of the technical strictness of criminal proceedings in matters not material to the merits of the case : and that such technical strictness may safely be relaxed in many instances, so as to insure the punishment of the guilty, withoat depriving the accused of any just means of defence: and that a failure of justice often takes place, on the trial of persons charged with felony and misdemeanor, by reason of variances between the statement in the indictment, on which the trial is had, and the proof of names, dates, matters and circumstances therein mentioned, not material to the merits of the case, and by the misstatement whereof the person on trial can- not have been prejudiced in his defence," — enacts by section 1, that " whenever on the trial of any indictment for any felony or misdemeanor there shall appear to be any variance betVveen the statement in such indict- ment and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, township or place mentioned or described in any such indictment, or in the name or de- scription of any such person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein, or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the commission of such offence, or in the Christian name or surname, or both Christian name and surname, or other description whatsoever, of any person or persons whomsoever therein (1) Vide supra, pp. 813, 874. (2) Extended by 12 & 13 Vict. c. 45, § 10, to courts of general or quarter sessions. 894 The Substance only of the Issue needs he proved. [CH. Xll. named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any prop- erty named or described therein, it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to tbe merits of the case, and that the defendant cannot be pre- judiced thereby in his defence on such merits, to order such indictment to be amended, according to the proof, by some officer of the court or other person, both in that part of the indictment where such variance occurs, and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury as such court shall think reasonable; and after any such amendment the trial shall proceed, whenever the same shall be pro- ceeded with, in the same manner in all respects, and with the same conse- quences, both with respect to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance had occurred ;. and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record, and thereupon such papers, rolls, or other records of the court from which such record issued, as it may be necessary to amend, shall be amended accord- ingly bj' the proper officer, and in all other cases the order for the amend- ment shall either be indorsed on the indictment, or shall be engrossed on parchment, and filed, together with the indictment, among the records of the court ; provided that in all such cases where the trial shall be so post- poned as aforesaid, it shall be lawful for such court to respite the recog- nizances of the prosecutor and witnesses, and of the defendant, and his surety or sureties, if any, accordingly ; in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence respect- ively, and the defendant shall be bound to attend to be tried, at the time and place to which such trial shall be postponed, without entering into any fresh recognizances for that purpose, in such and the same manner as if they were originally bound by their recognizances to appear and prosecute or give evidence at the time and place to which such trial shall have been so postponed : provided, also, that where any such trial shall be to be had before another jury, the crown and the defendant shall respectively be enti- tled to the same challenges as they were respectively entitled to before the first jury was sworn." The statute also enacts that verdicts and judgments after such amend- ments shall be valid,(l) and records shall be drawn up, when necessary to be drawn up, in the amended form, without noticing the amendments.(2) These important enactments have removed a grievous defect from our (1) Sect. 2. (2) Sect. 3. CH. XII.] Amendments in Criminal Cases. 895 system of criminal jurisprudence, and have assimilated the powers of amendment in criminal cases to those which had previously been conferred by the 3 & 4 Wm. IV, c. 42,(1) in civil cases. One good effect resulting from them will probably be the shortening of indictments, which, as in the case of pleadings in civil actions formerly, were made to contain a great variety of counts, presenting the charge in different forms so as to meet the evidence.(2) (1) Sect. 23, supra, p. 876, et seq. (2) Lord Campbell's Act contains several other highly valuable improvements as to the form of indictments and the statement of offences, with a view to prevent a failure of justice by the escape of offenders upon purely technical grounds. The greater part of these are not within the scope of the present work ; but some of them will be found to be adverted to in the Introductory Chapter to this volume. See 11 & 18 Vict. c. 125. END OP VOL. I. INDEX. VOLUME I. A. ABATEMENT, plea of for non-joinder of parties not neoeaaary when seyeral co-oontraotora sues alone, when, 852. when not available in suit by one of, 852. necessary when one of several is sued, 852. rule in actions against one of several makers of a bond, 853. not available in actions against tort feasors, 853. for non-feasance, when, 854. not necessary, when suit upon a joint contract and proof faUs, 853. ABDUCTION, on prosecution for, woman admissible for or against accused, 96, 96. AOCBPTANCB, of bill of exchange, See title Bill of Exchange. admits validity of instrument, 468. but not handwriting of indorser, 468. ACCEPTOR, discharged by foreign judgment, afterwards here on same bill. See Vol. II, ACCESSORY, ' See title Judgment. plea of guilty by principal, evidence against accessory, 495. principal competent on trial of, when, 109, 105-110. ACCOMPLICES, competency of as witnesses, 105-109. reason for admitting them as, 105-10'?. admitted under an implied promise of pardon, 107. this promise does not extend to other crimes, 108. appUcation to court to admit, as witnesses, 108, 109. should not be indicted jointly with others in such case, 108. if so indicted, must be acquitted first, 108. indicted separately, is competent for prisoner, 109. condition of their admission as witnesses, 108, 109. consequences of breach of condition, 108, 109. testimony so given not admissible against them, 109. acquittal of one of several jointly indicted to render him competent, 109, 110. may be used as witness, with consent of court, 108. confirmation of, 110-11'?. not legally necessary, 110, 113, 115. should be confirmed, if practicable. 111, 112, 113. In cases of misdemeanor, 112. how discretion of judge exercised as to confirmation, 113. principal in second degree not considered accomphce within this rule, 113. confirmation required, though several accomplices, 113, 114. by aooompUces' wife not sufBcient, 114. extent of required, 114-11'?. not as to details, 114. required as to the individual prisoner, 114, 115, 116. Vol. I. 57 INDEX. ACCOMPLICES— corfmaed confirmation to connect individual prisoner with the crime, llS-llT. dying declarations of, admissible, 288. ACCOUNT, debtor and creditor, when admissible as containing entries against interest, 335, et seq. delivered and not objected, when evidence as admission, 438, 439, 446. bankrupt's, when date of must be proved, 489. delivery of, evidence of credit, 451. account rendered by agent binds him, 469. admission of, when presented and not objected to, 43'Z-439. ACCUSED. See Prisoner. ACHIEVEMENT, when admissible in matters of pedigree, 266, 267. See title Hearsay, ii, 2. ACQUIESCENCE. See title Hearsay, viii. admission inferred from, when, 443. in proceedings in bankruptcy or insolvency, how far binding, 464. license from lord, when presumed from effect of, as an admission, 437-444. ACQUITTAL, effect of, where indictment defective. See Tol. II. necessary to render accomplice competent, 108, 109. so as to co-defendant, when, 48-50. ACT OF PARLIAMENT. See title Statute. ACT OP STATE, of foreign country. See Intrrockwtory Chapter. ACTS, official, presumption as to, 604, 642. ADJUSTMENT ON POLICY, not conclusive against underwriter, 478. not in case of mistake, 478. ADMIRALTY, rule in as to competency of witnesses. See Vol. Ill, Index. ADMISSIBILITY, of evidence, decided by court, 3-7. of witness, time of objecting to, 97-104. judge to decide upon, 3-7. so as to preliminary question of fact necessary to determine admissibility, 3-T. depends upon certain conditions precedent, 5, 6. where question of, involves same question as the one in issue, 6, 7. time of objecting to, 97-104. See Objection to Admissibility of Witness, 97-104. ADMISSIONS, .See Hearsay, viii. by wife, as agent for her husband, 92-94. See Admissions by agent, by party to suit, or person really interested, admissible, 406-502. by parties to suit, 402-531. evidence against, but not for party, 402, 403. when made evidence for, 403. letters written by party not evidence for him, 403, 404. declarations of a party evidence, when a part of the res gestcB, 404, 405, not otherwise, illustrations, 404. exception, in case of official returns and acts, 405. statements and confessions proved by an opponent, 405, I. Of general admissions by party to suit, or by one for whose benefit the suit is brought, 406-502. whole admission to be received, 406. though each part not entitled to same weight, 407. whole statement must be admitted, 407. that in his favor as well as that against him, 408. rule appUes equally to written and oral statement, 409, 410, and to books, when received in evidence, 410. INDEX. 899 ADMISSIONS— corfMiMcd rule applies to answers in chancery, 410, 413, 420. claim and counter claim, 411. effect of, as evidence, 410, 411, documents referred to in admission, 411, 412. admissions made after suit received with caution, 414. interrogatories, 412. referring to letter, 412, 413. examinations in bankruptcy, 412. books referred to in admission, 412. documents referred to and inclosed in letter, 413. otherwise as to disconnected papers, 413. the letter must be proved, 412, 413. in case of loss, how proved, 413. limits to the general rule, 414. distinct entries in book not to be read, 414. as to series of letters copied in book, 414. part of examination before commissioners of bankruptcy, 414. entries in books of a corporation, 414. pass-book as evidence, 414. conversations, rule in respect to 414, 415. the whole may be called for, 415, 416. correspondence, by letters, 416. both sides of correspondence to be given, 416, 41';. Tirrit containing return, 417. proceedings in chancery, 411. effect of receiving whole admission, 41*7, 418. favorable part of, 41'7-419. admission of an account, asserting an offset, 419. answer in chancery, 410, 413, 420. bill in chancery, 420. effect of admission containing hearsay, 420. as to contents of a written document, 421. copy of agreement, 421. recital of writ, 421. verbal admissions, 422. as to contents of written instrument, 422. authorities in favor of their admissibility, 422, 423. as to assignment of lease, 422. as to contents of promissory note, 422. as to contents of agreement, 422. of a written agreement directly in issue, 423. as to a demise, 423. authorities against their admissibihty, 423-425. weight and value of such admissions, 425. written admissions, 425. of dissolution of partnership, 425. of holding shares in joint stock company, 425. of conveyance of land, by answer to bUl, 425, mode of proving such verbal admissions, 425. attesting witness must be called, notwithstanding admission, 425, 426. exception in case of promissory note, 426, late English statute on subject, 426, by parol, not admissible to contradict documentary evidence, 426. nor to prove matter of record, 426. as discharge under Insolvent Act, 426. pending treaty of compromise, inadmissible, when, 426, 427. if in nature of offer of settkment, 426, 427. or if made expressly "without prejudice," 426, 430. made in negotiation for compromise, admissible to prove a conceded fact, 427-430, offers of compromise, as to do or admit something, inadmissible, 428, 429. letters and communications, "without prejudice," inadmissible, 430. admissible in proof of facts, when not without prejudice, .431. where compromise completed, 431. rule in regard to admission of collateral facts, 431. offer to admit facts with view to arbitration, 431. a statement of facts in c^er admissible, 431. under oath, under compulsion of law, receivable in civil oases, 432. not so in orimiual cases, 432. examination in bankruptcy, 432. 900 INDBi, ADMISSIONS— cowfeaed. under oath, evidence for strangers, 432, 433. where not, for assignees of banljrupt, -438, indirect or implied admissions, 433. of title in notice of sale, 434. of jurisdiction in appeal, '434. of particular relation or character by recognitioin, ^434, acts subsequent, showing his character, 434, 435. of professional qualification, as attorney or physician, '43G- when admission does not admit qualification, 43€. by demeanor, &c., upon statement of other parties, 436, 43'7. waiver of forfeiture in lease, wh&tis, 437. by silence, when, 431. when an account is presented, 451. or a fact in form of demand asserted, 431, by answering to a name, admits itis his, 431. qualification of rule, 438. not called upon to reply, TvhSn, 438. by receiving an account current, without objection, 438, 439. receiving an account stated by letter, 439. implied from state of pleadings, 439, 440. by notice given by attorney in cause, 440, use of evidence given in another cause with assent of opposite party, 44i>. bUl of exceptions' not evidence in another trial, 441. what acts and declarations receivable as admissions, 441. naked declaration of intention not admissible, '441. as to legal effect of a contract, not admissible, '442, quere, if an escrow be proof of facts stated in it, 442 . evidence of adoption of a note, 442. by acquiescence, admissions by, effect of, 442-446", in criminal cases, 443, 445. of tenancy, in receiving notice to quit, 443. contents must be shown to' be known, 443. by bankruptcy, as to petitioning creditor's debt, 443. permitting denial, act of bankrupt, 443, 444, inferred from forbearance, 444. knowledge of rights must be Shown, 444. not inferred from unanswered letter, 444, 445. may be from account delivered, and not objected to, 445. not from unanswered statement by mere stranger, 445, nor where reply not expected, 445, 446. party charged, before magistrate, 445, 446, remarks before magistrate, 446. statements in making charge admissible to show animns, -446, replies admissible, if prisoner make any, 446, inferred from access to books containing entries, 446, 441. books accessible to both parties, 441. books of a pubUc company, 441, 448. bank books, when evidence against customer, 441, 448, cpurt rolls not, by copyholders, 448. inferred frbm papers in possession of prisoner, 448. not from depositions enrolled by assignees, 449, not from indorsement on feoffment,- ^9. books of partners against firm, 449. books of bank not against customer, 449, so of corporate company, 449. documents produced by party, 449, affidavit, 449. deposition in bankruptcy, when, 449, and when not, 450. depositions in equity, 430. evidence given in former trial, 450. inscription of name on stage coach, 450. of debt to an attorney, to bo proved, not admission of delivery, 450 from treatment of subject, 450, 451. non-existence of claim, by omission in schedule of insolvent, 451. to whom credit given, by delivery of bill, 451. notice of dishonor, by promise to pay bill or note, 451- settlement by relief to pauper, 451. nuisance, by admission on former trial, 451. INDEX. 901 ADMISSIONS— (Wiiwtted!. inferred from admission of demand on arrest, 451. not inferred from conduct, when matter of law: involved,, 452. as discharge of insolvent by Quarter Sessions, ,452. as to stattts of marriage, 452. or marriage in prosecutions for bigamy, 452. admission not sufficient, 452. effect of admissions, as estoppels, 453-464. where acts are done upon faith of statements, 453., against whom receivable, 453, 454. different classes of such admissions, 454. admissions with a view to evidence, 454. admissions or conduct inducing others to act uppn them, 454r461. operate as an estoppel m pais, 454. famihar instances of, 455. tenant estopped from disputing landlord's, title, 455. other illustrations of the rule, 456, 45'7. admission of debt, inducing a suit upon it, 458. admission of possession, 458. of ownership of vessel, 459. of executorship, by conduct, 459. admission of agency, 459. of name, 459, 460. by assuming or appearing in, 459, 460. admission of caUiug or profession, 460. inventory concludes executor, 460. , estoppel only in favor of party misled by statement,, 460, 461. mistakes that do not mislead do not bind, 461. quere as to mistakes that do, 461, 462. See Kingsley v. Vernon, 4 Sand. 361. oral admissions received with caution, 462. admission as to what law is, or as to, legal effect ;Qf contracti of no value, 462. various admissions, effect of, 463. acquiescence in proceedings in bankruptcy, &c., 464 by bankrupt as to validity of fiat, 464. by petitioning creditor, 464. of title in another, 465. by accounting with person in particular capacity, 465. admissions, effect of, as estoppels by assumption of professional, character, 465., by giviiig note or bill for goods, admits price reasonable, 465. by holding out woman as wife, 455, 465. wife estopped by representations, when, 466. estopped from denying assumed name, when, 466, from denying liabUity as partner, when, 466. from denying landlord's title, 46'7, 468. what not an admission of title, 468. attornment without payment of rent, 468. payment of rent to another party explainable, 468. may sliow landlord's title expired, 468. acceptance of bill admits drawer's signature, 468. not that of indorser, 468. account rendered by agent, binds him, 469. bailees admit title of bailor, 469. in criminal cases, 469. admissions from conduct not conclusive, 469. on oath, before tax commissioners, 470. answers in chancery, strong evidence, 470. sworn entry in custom-house, not conclusive,, 470, omission of debt in schedule by insolvent, 471. in deeds, operate as estoppels, 471. statement of payment of consideration, 471. not conclusive, when, 471, 472. when action not upon the deed, 472. nor as to matters of recital, 472. unless contract has reference to recital,, 472, 473. binding upon privies in estate, 473. in favor of a stranger, 473. distinction between English and American doctrine as to effect of recital of one deed in another, 473. in 1 writings, not under seal, 474. 902 INDEX. ADMISSIONS— cora