Clloruf U ICaui i>rI|O0l ICibratg 
 
Cornell University Library 
 
 KF 8935.B81 1898 
 
 Rules of evidence as prescribed by the c 
 
 3 1924 020 133 397 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020133397 
 
RULES OF EVIDENCE 
 
 AS 
 
 PRESCRIBED BY THE COMMON LAW 
 
 FOR THE 
 
 TEIAL OE ACTIONS AND PEOCEEDINGS 
 
 GEORGE W.'BRADNER 
 
 SECOND EDITIOW 
 
 CHICAGO 
 
 OALLAGHAN AND COMPANY 
 
 1898 
 
mf 
 
 Copyright, 1895, 
 
 BY 
 
 GEORGE W. BRADNER. 
 
 COPYKIGHT, 1898, 
 BY 
 
 GEORGE W. BRADNER. 
 
 I 
 
 STATE JOURNAL PRINTINa COMPANY, 
 
 PlUNTEHS AND SteREOTYPERS, 
 MADISON, WIS. 
 
INTRODUCTION TO FIRST EDITION. 
 
 "When a new work is offered to the public, and especially 
 when there are several existing works upon the subject, it is 
 expected that the author will state the reasons which induced 
 the publication. One of the important features of this work 
 is that it will be a work for lawyer and student. The searcher 
 for a rule of evidence can find what he wants without trouble^ 
 and the lawyer who desires a case illustrating a rule will find 
 it useful, collecting as it does the latest cases. 
 
 The work will present several useful innovations. The- 
 rules of evidence, together with the reasons for the same, are 
 treated rather more fully than in such excellent works as 
 " The Theory of Evidence," by Reynolds, and Stephen's " Di- 
 gest of the Law of Evidence." 
 
 ■ The latest cases are not to be found in the larger and older 
 works. As one of the older works — Greenleaf, Best, Taylor, 
 or Wharton — is generally to be found in the hands of every 
 practitioner, and accessible to every student, a mere repro- 
 duction of their works even in new form is unnecessary. The 
 author has therefore made use of the arrangement of Stephen,. 
 modified as he thought necessary, enlarged by a fuller state- 
 ment of the rules, having made a point of citing only such 
 of the older cases generally cited in the older works as wei^e 
 necessary or advisable, and having taken especial pains tO' 
 cite the late cases through the union illustrating the applica- 
 tion of the rules of evidence. This feature of the work makes 
 it especially desirable to the trial lawyer, and enables him at 
 a very moderate price to supplement these older works by 
 the latest utterances upon the subject, arranged in accordance 
 with the most logical order of which the subject admits. 
 
 The student will discover a considerable advantage over any 
 other work, finding in a moderate compass a full discourse of 
 the law of evidence with the benefit of the latest cases. The 
 
VI INTEODUOTION. 
 
 law is changing. Time was when the earliest precedent was 
 of paramount authority, and later decisions were tested by 
 the earlier, and disregarded when not following the earlier. 
 But this rule has been reversed. It is now the latest decis- 
 ions of the courts of last resort which are regarded as the 
 highest evidence of the law. The rules of exclusion of over- 
 ruled and obsolete decisions and cumulative citations in law- 
 book making are hardly less important than those of inclusion, 
 and on this point the student and practitioner will find this 
 work of value. The general rule is first given, the illustra- 
 tions immediately follow the rule, and the exceptions in the 
 order of their frequency. "We have attempted in many cases 
 to make the general rules condensed treatises, full of valuable 
 information. The work is a compromise between the works 
 of Greenleaf, Taylor, Phillips and Eoscoe, on the one side, 
 and those of Abbott and Stephen on the other. We have 
 attempted to make the rules lucid and terse, conveying, as is 
 the function of a law-book of the present day, the information 
 which they contain at a glance. 
 
 "We have atteimpted another point of great importance to 
 the practitioner in the grouping of subordinate rules around 
 the general rules. This plan saves space and time. It is of 
 immense service to the practitioner to have what the courts 
 have held to be the law, grouped where it can be road im- 
 mediately. "We claim this to be a new service which this 
 work lends to the profession. The thousands of illustrations 
 in the context present the latest knowledge on the subjects 
 they are designed to explain. It is true that there are numer- 
 ous works, American and English, which in the aggregate 
 treat the subjects included in this work; but most of them 
 cover the Lame ground as the others, so they are practically 
 duplicates. Most of them are several years behind the decis- 
 ions of the courts. In some of these works the law of evi- 
 dence seems to be regarded as a distinct body of rules, inde- 
 pendent of the other members of the body of the law, and the 
 efforts of the writers seem to have been limited to an expo- 
 sition of those views. This view is proper enough in one aspect, 
 but it is nevertheless a very limited view of that branch of the 
 law. It is to be recollected that the English law of evidence had 
 its origin in the English courts, and is perhaps the most perfect 
 
INTEODUGTION. Vl\ 
 
 example we possess of what is known as judge-made law. It 
 is substantially the creation of successive generations of judges 
 in the courts of common law. It grew up as a thing of custom 
 and practice. It was made by judges for juries, and this fact 
 no doubt serves to explain many of its peculiarities. They 
 were founded largely on distrust of the capacity of the tribu- 
 nal to which the issues of fact belong. It may be conjectured 
 that if trial by jury had not been the practice of the common 
 law — if the judges had acquired the power of deciding issues 
 of fact as well as of law, — many of the most obnoxious rules, 
 of evidence would never have existed. The legislature has in- 
 terfered mainly for the putting an end to the exclusion of cer- 
 tain classes of witnesses. Certainly the most important of the 
 statutes dealing with the law of evidence are those which make 
 classes of persons, formerly excluded., competent to testify. 
 
 Our text-books on the law of evidence owe their enormous 
 bulk to the introduction of rules which properly belong to the 
 substantive law, or to the rules of pleading and practice. But 
 this is necessary from the fact that the law of evidence is not a 
 distinct body of rules independent of the other members of 
 the body of the law ; that is,, the substantive law and law of 
 procedure are but different members of one harmonious body. 
 Neither can have any proper force or vigor without the other ; 
 thus, substantive law establishes rights, and the law of pro- 
 cedure points out how remedies are obtained for infringement 
 of them. It is substantive law which declares that a person 
 shall enjoy security of person and property, and defines the 
 nature of these personal and property rights and declares him 
 a wrong-doer who infringes them. The law of procedure 
 directs and controls the. manner of administering law for the 
 protection of rights and provides remedies for injuries in 
 courts of law. The law of procedure is made up of pleadings, 
 practice and evidence. The subject of pleadings relates lo 
 the orderly presentation upon the record of the contention of 
 the respective parties in relation to the subject-matter of the 
 controversy. Practice is that branch of procedure which 
 points out in what manner the various steps are to be taken ; 
 not what steps are to be taken, but how they are to be taken. 
 Pleadings and evidence are very closely associated, and it is 
 hard to draw the line between them. It is necessary to dis- 
 
VIU INTEODUCTION. 
 
 tinguish two common meanings of the word "evidence" which 
 are not unfrequently confused. Evidence sometimes means 
 the ascertained facts from which we infer the existence of 
 some other fact or principle. It also means the testimony of 
 persons as to the existence of facts, from which testimony we 
 infer that these or other facts do or do not exist. It is the 
 latter sense alone which is appropriate in speaking of judicial 
 evidence. The word " evidence" includes all the legal means 
 which tend to prove or disprove a fact ; and the law of evidence 
 in the broadest sense in which it is used, as the designation of 
 a department of the law of procedure, embraces not only what 
 matters may be legally submitted to a tribunal empowered 
 by law to decide an issue of fact, but the manner in which, 
 and the means by which, and the party by whom, those facts 
 may and must be shown. The rules of the law of evidence 
 are based chiefly on considerations relating to human testi- 
 mony. Their fundamental purpose is to guard and test the 
 truthfulness of statements as to matters of fact made in a 
 court of justice. The farther question, what conclusion is to 
 ibe drawn from the facts supposing them to be true, is the sub- 
 ject of few if any specific rules. Eules of evidence play an 
 important part in the administration of justice. They should 
 ■be reasonably and consistently enforced so as to give cer- 
 tainty to the law which protects the rights of parties. The 
 law of evidence determines what .facts are deemed to be of 
 sufficient probative force to be heard as tending to establish 
 the legal facts in issue, and also the means by which those 
 facts may and must be made apparent. The first part of the 
 ■definition is called relevancy ; the second is called proof. The 
 general theory of relevancy excludes testimony relating to 
 facts from which no conclusion whatever could be drawn with 
 reference to the facts in issue. On the other hand, in the case 
 -of what is called "conclusive proof," the law directs that on 
 ■certain evidence the judge must regard some fact as proved, 
 ■and reject any evidence ofifered against it. Between these 
 two extremes, the law leaves the relation between facts in 
 ■evidence and facts in issue to the unaided logic or common 
 sense of the tribunal. 
 
 The theory of relevancj'-, above alluded to, lies at the root 
 of the law of evidence, and requires some preliminary explana- 
 
INTEODUCTION. 15 
 
 tion. The phrase is not one of common use in our text-books, 
 and nothing like a statement of the general principles is to be 
 found in them. Eoscoe, for instance, simply states that " as 
 the object of pleading is to reduce matters in difference be- 
 tween the parties to distinct and simple issues, so the rules of 
 evidence require that no proof, oral or documentary, shall be 
 received that is not referable to those issues. All evidence 
 of matters which the courts judicially notice, or of matters 
 immaterial, superfluous or irrelevant, is therefore excluded." 
 And again, " In general, evidence of collateral facts not perti- 
 nent to the issue is not admissible." "We are left to collect 
 from the decided cases what things are relevant and material, 
 and what things are irrelevant and superfluous. It will be 
 noticed that, unlike the rules of pleading, the rules of evidence 
 cannot always be based upon logical reasons; they are based 
 upon such reasons as are deemed good and suflicient ; that is, 
 many of them depend entirely upon the notion of the legisla- 
 ture or the influence upon the court of what is termed the 
 policy of the law. 
 
 As to relevancy, there is a distinction between logical rele- 
 vancy and legal relevancy ; as, for illustration, in the trial 
 of one accused of crime, the admission or confession of a 
 third person that he committed the crime is logically very 
 convincing, and in fact is relevant; that is, it relates to the 
 crime charged and the person who committed it, but it is not 
 ordinarily considered relevant in law. As before stated, there 
 is a point on the question of relevancy where it depends en- 
 tirely upon the discretion of the judge, namely : in cases where 
 the question is a close one as to whether certain facts are too 
 remote, although connected with the fact in issue. Upon 
 such questions no exact rule can be formulated. The distinc- 
 tion sometimes drawn between direct and circumstantial evi- 
 dence is of popular rather than of legal interest. The fact in 
 issue may be proved either by the testimony of persons who 
 swear to it as a matter of personal knowledge, or by the tes- 
 timony of persons who swear to other facts from which the 
 existence of the fact in issue is inferred. In the former case 
 the evidence is said to be direct, in the latter circumstantial. 
 The probative force of these two sorts of evidence has been 
 differently estimated. On the one hand, it has been said — and 
 
X INTRODUCTION. 
 
 this we would think is the more popular view — that a con- 
 clusion arrived at merely from inference is not so trustworthy 
 as the positive assertion of a sane and honest witness who tes- 
 tifies to what he has actually seen or heard. The explanation 
 would seem to be that men have less confidence in their own 
 powers of reasoning than in the assertions of others. It is 
 hardly necessary to point out that in both cases a process of 
 inference is necessary : that we infer the existence of the fact 
 from the .fact that the witness swears to it, and that this infer- 
 ence, like others, is exposed to the chance of error. On the 
 other hand, the numberless instances in which positive, direct 
 testimony as to matters of fact has been subsequently shown 
 to be entirely false or erroneous has led to the opposite opin- 
 ion, that circumstantial is more trustworthy than direct evi- 
 dence. The general rule is that evidence may be given in an 
 action or proceeding of the existence or non-existence of any 
 fact in issue, and of any fact relevant to any fact in issue, and 
 of no others. Relevant facts here means simply facts — other 
 than those in issue — which may be proved, and would include 
 cases of relevancy strictly so called — i. e., facts relevant in 
 the sense that from their existence you may infer the exist- 
 ence of the facts in issue. There are minor classes of facts, 
 not being facts in issue, and not being relevant facts in this 
 sense, which nevertheless may be proved. For example, "facts 
 which, though not in issue, are so connected with facts in 
 issue as to form part of the same transaction," and "facts 
 which are necessary to be known to explain or introduce a 
 fact in issue," may be proved ; but to say that they are rele- 
 vant tends to obscure the theory of relevancy. "What facts, 
 then, are to be regarded as relevant to facts in issue? Our 
 law, as we have seen, makes no attempt to answer this ques- 
 tion otherwise than by the enumeration of decided cases. 
 Sir J. Stephen, in his very useful digest, borrows the general 
 definition of relevancy from a pamphlet on the theory of 
 relevancy for purposes of judicial evidence, by George C. 
 Clifford Whitworth, Bombay, 1875, which is stated as follows: 
 " Facts, whether in issue or not, are relevant to each other 
 when one is, or probably may be, or probably may have been, 
 the cause of the other, the effect of the other, the effect of 
 the same cause, the cause of the same effect, — or when the 
 
INTEODTTOTION. XI 
 
 one shows that the other must or cannot have occurred, or 
 probably does or did not exist, or that any fact does or did 
 exist or not, which in common course of events would either 
 have caused or have been caused by the other." There is 
 little doubt that this is a correct statement of the general 
 principle embodied in the decided cases. Facts may be proved 
 from which legitimate inferences may be drawn as to the ex- 
 istence of the facts disputed at the trial, and this inference 
 depends on the existence of a casual connection between the 
 two sets of facts. It is perhaps hardly necessary to give in- 
 stances in illustration of the general definition of things rele- 
 vant. The conduct of a person charged with an offense is one 
 of the most common and the most obvious oases. Thus, " any 
 fact which supplies a motive for such an act, or which consti- 
 tutes preparation for it, any subsequent conduct of such per- 
 son which appears to have been influenced by any such act, 
 and any act done in consequence of any such act by or by the 
 authority of that person," may lead to inferences as to the 
 act itself. 
 
 The limit of relevancy is sometimes expressed by saying 
 that collateral facts are not admissible in evidence unless per- 
 tinent to the issue ; but, as usual, we are left to collect the 
 meaning of " collateral " from the decided cases. The typical 
 case is perhaps that of Holcombe v. Hewson,i where, on a 
 question whether the beer supplied by plaintiff to defendant 
 was good, the plaintiff was not allowed to prove that the beer 
 he supplied to his other customers was good. All proof of 
 facts which merely tends to create an unjust prejudice, or un- 
 duly to influence the jury, or occupy the time of the court in 
 irrelevant inquiries, is inadmissible; but if the proof be di- 
 rectly or indirectly pertinent to the issue, it will be admitted, 
 which seems to come to this: that mere similarity in circum- 
 stances or coincidence in time will not make one fact relevant 
 to another, unless some casual connection between them is 
 made apparent. Thus, in the beer case above mentioned, the 
 evidence might have been made releTant by showing that the 
 beer supplied to all the customers was the same. The excep- 
 tions to the rule excluding collateral evidence will be found 
 to be cases that have been brought within the general rule of 
 
 13 Campbell, 391. 
 
Xll INTEODUCTIOIT. 
 
 relevancy. Some bond of connection, as cause and effect, will 
 be found to have been established between them. Thus, 
 when the intention of an act is in question, — as in the case of 
 a man accused of setting fire to his house in order to get in- 
 surance money, — other instances of similar acts, as that the 
 prisoner had previously had two houses burned, each being 
 insured, and the insurance money having been paid, may be 
 adduced. 
 
 Another instance of departure from the logical theory oi 
 relevancy is the evidence of opinion. The broad rule, to 
 which the ancient law scarcely knew an exception, is that 
 testimony can relate merely to facts, and that the inferences 
 from them are to be made by the jury. But this general rule 
 has been broken in upon by the admission of various classes 
 of exceptions, all resting on the common ground of necessity. 
 While the general rule is that the fact that any person is of 
 opinion that a fact in issue or relevant to the issue does or 
 does not exist is not regarded as relevant to the existence of 
 such fact, a distinction must be drawn between the two senses 
 in which the word " opinion " may be used. In common par- 
 lance the belief of a scientific witness on some technical point, 
 and the belief of an ordinary witness as to some fact per- 
 ceived by himself, would with equal propriety be described 
 as opinion. The opinion in each case is the result of a process 
 of reasoning. In each case one reasons from a number- of 
 facts to a conclusion. The belief of a person in a question of 
 personal identity is based on a number of facts as to which he 
 has no doubt — e. g., the size, the build, the gait, the clothes 
 of the person in question. The law, however, draws a broad 
 distinction between this kind of inference and the open and 
 deliberate inference as to matters not directly perceived by 
 the senses. It distinguishes between facts and inferences, 
 holding, in disregard of psychology, that the former are di- 
 rectly perceived ; but it does not insist upon absolute cer- 
 tainty in the perception. A witness may "believe," or 
 " think," or " be of opiniou," that he saw A. on a certain day, 
 or he may say positively that he did see him. The strength 
 of his persuasion will be considered by the tribunal, but his 
 evidence will not be rejected because his persuasion is weak. 
 By opinion, then, is meant not merely a lower degree of per- 
 
INTEODUCTION. XIU 
 
 suasion, a more feeble belief, but a belief held as the result of 
 inference and not of direct perception. There is nothing in 
 the feebleness with which a witness' belief in the existence 
 of a fact is expressed or held to make it irrelevant. But as a 
 general rule, opinion in the other sense is not admissible in 
 evidence at all. It is the business of the tribunal, of the jury, 
 to form such opinion for themselves. Indeed, the exclusion 
 of opinion in evidence is put on this very ground in some of 
 the decided cases. But the general rule has its exceptions, 
 which majf almost all be included "in the opinion of experts." 
 In matters of science and skill requiring special study and 
 education, the opinions of persons so qualified — experts — 
 may be given in evidence. But an expert cannot give an 
 opinion as to the existence of the facts on which his opinion 
 is based, although of course he may testify to them if he has 
 perceived them himself. 
 
 ■ The effect of a presumption — presumptio facti, as distin- 
 guished from presumptio juris, or conclusive proof — is to 
 throw the burden of proof on the party who denies it as a 
 matter of fact. Writers on the law of evidence generally 
 distinguish between presumptions of law and presumptions 
 of fact — the latter being, the former not being, rebuttable by 
 counter-evidence. Presumptions of law are, in reality, rules 
 of law and part of the law itself, and the court maj'^ draw the 
 inference whenever the requisite facts are developed. Some 
 regard it as falling properly under specific divisions of the 
 substantive law. Presumptions of this sort are an indirect 
 way of expressing some legal principle. Presumptions of 
 fact, *. e., conclusions which on certain evidence must be 
 adopted by the court until and unless they are disproved by 
 counter-evidence, are oases in which the task of inference is 
 taken out of the hands of the jury altogether. Besides these 
 two classes of presumptions, and along with them, there are 
 presumptions, i. e., inferences from facts, within the province 
 of the jury itself. These are neither more nor less than vari- 
 ous degrees of probability in cases of circumstantial evidence. 
 The distinctions made by the leading text-books of violent, 
 probable, light or rash are of no value. Presumptive evidence, 
 and the presumptions of proofs to which it gives rise, are not 
 indebted for their probative force to any rules of positive 
 
SIV INTRODUCTION. 
 
 law ; but juries, in inferring one fact from otliers which have 
 been established, do nothing more than apply, under the sanc- 
 tion of the law, a process of reasoning, the force of which 
 rests on experience and observation, and such inferences are 
 presumptions of fact. The effect of presumptions may be 
 compared with that of estoppel. The former establishes 
 against a party a conclusion which stands unless and until he 
 positively disproves it. By estoppel a party is prevented 
 from disproving a fact which he has actually or constructively 
 asserted.' 
 
 Certain classes of facts are protected from disclosure on 
 various grounds. Thus, no person can be compelled to dis- 
 close communications made to him by his wife during mar- 
 riage, and servants of the state cannot be compelled to give 
 evidence of official matters without the consent of the head 
 of the department to which they belong. But perhaps the 
 most important case is that of communications between lawyer 
 and client. The lawyer is not allowed to disclose any com- 
 munications without the client's consent, nor can the client 
 be compelled to disclose such communications himself. The 
 rule, however, will not extend to communications in further- 
 ance of any crime or fraud. 
 
 In attempting to give an outline of the law of evidence, we 
 start with the fundamental principle that the great object in 
 judicial evidence is the discovery of truth. Any attempt to 
 impose a particular logical theory upon the judges or the legal 
 profession would be sheer nonsense ; and we doubt whether 
 any branch of the law is so difficult to arrange in a complete 
 and satisfactory manner. 
 
 The principles of evidence cannot be embodied in rigid and! 
 lifeless formulas which deny adaptation to new conditions in 
 human affairs. They admit of expansion and of frequent ex- 
 ception whenever it is needed in order to demonstrate the- 
 truth. A different view of the law of evidence might be ex- 
 tremely subversive of justice. The law of evidence a's a system 
 is based both upon principles and upon rules which, when not 
 prescribed in statutes, arise out of precedents in decided cases. 
 The rule is an exposition of the principle, but it is based upon 
 judicial experience in the investigation of controversies by 
 means of testimony, and is necessarily influenced by what may 
 
INTEODUOTION. XV 
 
 be the existing condition of things. It is well, though some- 
 what elementary, to observe that in the application of the prin- 
 ciples of the law of evidence to the investigation of the truth in 
 a controversy over an alleged matter of fact, the aim is to 
 confine the proof only within the bounds of what is competent 
 and satisfactory evidence, and that by competent evidence is 
 meant such as the nature of the thing to be proved requires, 
 and that by satisfactory evidence is meant such as shall sufiice 
 to satisfy the unprejudiced mind. If some rule of evidence 
 is alleged to militate aga,inst the competency of the species of 
 proof offered, I suppose it should comply with two conditions 
 to satisfy the mind as to its force. It should appear that it 
 was established upon a sufiicient precedent fitting the case, 
 and that the nature of the thing to be proved did not require 
 any exception to, or modification of, the supposed rule. 
 
 Mere number of citations of cases is not the only or the 
 chief test of value' in a law-book, and the author has in this 
 work carefully ruled out those that are clearly obsolete. A 
 special feature is the "running in" of questions of minor im- 
 portance, whereby a great saving of space is made. In order 
 to add to the utility of this work, we have used the familiar 
 but always serviceable device of placing the Contents at the 
 head of each chapter, subdividing the context, and giving 
 the text at the head of each subdivision. 
 
 "We follow in the main the divisions adopted by Boscoe and 
 other elementary writers, viz. : 1st. What facts may be prOved 
 in a court of law ; 2d. By what kind of evidence they must be 
 proved; and 3d. By whom, and in what manner, the evidence 
 must be produced. We have not attempted to follow out 
 the matters into their minute ramifications. We think, how- 
 ever, that any one who makes himself thoroughly acquainted 
 with the contents of this work will know fully and accurately 
 all {lie leading principles and rules of evidence which occur in 
 actual practice. We find every text-writer striving to draw^ 
 the line between the theory on which the rules of evidence 
 depend, and the rules of evidence themselves. This they 
 have found to be a difficult undertaking. It has been sug- 
 gested, with great plausibility, that the simplest way of stat- 
 ing the law of evidence would be to omit all reference to the 
 relevancy of facts, and to lay down a series of rules as to the 
 
XVI INTEODUCTION. 
 
 classes of facts of which proof is or is not admissible. It has 
 also beea said that such a way of treating the subject is 
 more convenient for the practitioner than any arrangement 
 yet adopted, as the law, as distinguished from the theory of 
 judicial evidence, is the work of many generations of judges, 
 who have worked it out. 
 
 Every person who attempts to state the rules of evidence 
 without a rigid theory as to the value of pleadings and prac- 
 tice, allowing himself to be guided entirely by the decided 
 cases, will be led into a labyrinth of indeterminable contra- 
 dictions; and I defy any person to compose a consistent work 
 on practice evidence if he follows all the decided cases. It is 
 hardly necessary to say that with such difficulties, in order 
 to give only what is incontestable, we must limit ourselves to 
 general lines. 
 
 The plan followed in this work has prevented the introduc- 
 tion of long critical dissertations on controverted points. A 
 continuous system of citations gives the reader the means of 
 verifying by their sources all the propositions of the text. In 
 these citations I have strictly confined myself to the leading 
 cases, — I mean to the latest cases in the courts of last resort. 
 I know that to persons little acquainted with the law of evi- 
 dence many other developments would have been useful, but 
 I am unaccustomed to doing over again what has been done 
 and well done. Abbott, Lawson, Eoscoe, Taylor, Rice, Wood 
 and others are now in the hands of most practitioners. Those, 
 I say, who will consult these excellent works, will find in them 
 the explanation of a multitude of points upon which I have 
 been compelled to be very succinct. I believe that I have 
 neglected, among modern authorities, no source of informa- 
 tion. Thanks to the thorough studies of which these ques- 
 tions have been the subject for centuries, a problem that 
 would formerly have been deemed impossible has reached a 
 solution which leaves room for much uncertainty, but which 
 is amply sufficient for the demands of the practitioner. It is 
 of small importance to our present object to carry this deli- 
 cate analysis farther, and to endeavor to reconstruct in some 
 manneij, on the one hand, the theory, on the other the prac- 
 tice, of the great subject. When I for the first time conceived 
 a work on evidence, what I wished to write was in fact the 
 
INTEODUOTION. XVU 
 
 rules, in which decided cases would have had scarcely any 
 part. But I have learned since that a rule of evidence is not 
 a mere play of abstraction ; that in it pleadings, procedure 
 and the discretion of the judge make up the major part. 
 
 All we propose to do is to collate the work of the judges 
 and put it into a concise form for the use of the profession. 
 
 Geo. W. Beadnek. 
 
 November 10, 1894 
 B 
 
PKEFACE TO SECOND EDITION. 
 
 lu this edition I have spared no pains in changing the text 
 and adding new matter to make the work as precise and com- 
 plete as possible. I trust my work will show that the law of 
 all jurisdictions on the main subjects of relevancy and proof is 
 capable of being thrown into a form short, plain and system- 
 atic. I have much increased the number of points and have 
 attempted to make them clear and accurate with plain and 
 consistent classification, so that they can be readily found, 
 quickly undei;stood and fully relied upon. The principles of 
 classification followed are to put like with like, a,ccording to 
 the principles involved. The principles of practice evidence 
 are shorter and simpler than they look, and the innumerable 
 cases which seem to constitute the law are no more than illus- 
 trations of such principles. We find that the student and the 
 practitioner acquire knowledge of these principles very slowly 
 and with great labor, and that their knowledge of the princi- 
 ples of the law of evidence is very often fragmentary. Every 
 one seems to understand somewhat differently the principles 
 to be drawn from the decisions. Our steadfast aim is to bring 
 out every point of law in the book where the practitioner can- 
 not overlook it. It is simply mental inertia which makes a 
 statement of the facts with the conclusion thereon pass for the 
 law in a case. 
 
 The influence on the law of evidence of legal writers who 
 deduce, from a mass of precedents, general principles from the 
 great bulk of authorities is better or at least more convenient 
 than the reports and statutes from which the authorities are 
 collated. It seems to be a dogma of the bar that all general 
 propositions of law are delusive and misleading and that digests 
 are useless except as indexes. 
 
 In treating of statute law I have given what I understand to 
 be the effect instead of the words of the enactments. I have 
 
XX PEEFACB TO SECOND EDITION. 
 
 clone this in order to show that the statutes of the several 
 jurisdictions are substantially the same on each particular sub- 
 ject. In many cases the result of the enactments of the sev- 
 eral states may be stated in a few lines — for instance, the law 
 in regard to the incompetency of certain clijisses of witnesses, 
 viz., attorneys, physicians, priests, etc. By giving the operative 
 ^rords of a statute I have called the attention of the reader to 
 the words of the statute and warned him to refer to the words 
 of the statute found in it. By an elaboration of the mgiferjals 
 at command the work might easily have been svyelled to two 
 or more volumes. Such an increase of it? size would have in- 
 creased its cost without any great corresponding advantage. 
 
 I have spared no pains to make the subject of competency 
 of witnesses as complete and precise as possible, and I have 
 much increased the number of authorities, thus making the 
 work not only a repository of all the authorities upon that sab- 
 ject but useful for purposes of study. 
 
 I have made some eifort to separate the subject, "What 
 facts may be proved " from the subject " How must a relevant 
 fact be proved?" and have added to the work the subject, 
 " What may be proved under particular issues." The rules 
 which point out the manner in which the attendance of wit- 
 nesses is to be procured appeg,rs to me to be no part of the 
 law of evidence, and I have therefore omitted all reference to 
 them. For the same reason I have omitted the practice in re- 
 gard to the taking of depositions or evidence on commission, 
 special statutes as to thp proof of " public documents," and 
 all matters prescribed by the several codes of civil and crimi- 
 nal procedure, in the different jurisdictions; not that I under- 
 value the utility of such information, but such provisions differ 
 so widely in the different jurisdictions that thev are in the 
 nature of local court rules and have no place in a general treat- 
 ise on the law of evidence, as the laws in regard to such local 
 practice are constantly undergoing modification and change. 
 I have also omitted the law relating to the interpretation of 
 •written instruments or have stated those rules only incident- 
 ally when they seem to bear directly on the question of vary- 
 ing and explaining or adding to such instruments by pa.rpl 
 evidence. I have called attention to the increasing strictness 
 of the appellate courts that objections must be so specifically 
 
PEEFACE TO SECOND EDITION. XXI 
 
 stated in the trial court as to enable the judge clearly to under- 
 stand the ground. I have pointed out the fact that in appel- 
 late courts the discussions on questions of evidence are more 
 frequent and more important than ever before. The method 
 in this work aims to give, in successive chapters, the character- 
 istic rules now applied by our courts. The arrangement warns 
 the reader, in preparing his proofs, not to overlook any ele- 
 ment which the case may involve. Discussion of the cases 
 cited and of general principles has of necessity been generally 
 omitted because impracticable in a work covering so extended 
 a field. I have freely availed myself of such material con- 
 tained in the last edition of the works on evidence by Green- 
 leaf, Taylor, Abbott et al. as seemed to me new or useful. 
 
 I hope to improve the index of the first edition so as to make 
 it, what it was not before, the most satisfactory guide to the 
 smallest point of interest in the work. 
 
 Geo. "W". Beadnek. 
 
TABLE OF CONTENTS. 
 
 OHAPTEK I. 
 
 PEELIMINAEY OBSEBVATIONa 
 
 EiTDENOE — Definition of 
 § 1. In general 
 
 2. Primary 
 
 3. Secondary 
 
 4. Positive 
 
 5. Presumptive 
 
 6. Hearsay 
 
 7. Parol . 
 
 8. Circumstantial 
 
 9. Conclusive 
 
 10. Direct . 
 
 11. Extrinsic 
 13. Cumulative 
 
 13. Competent 
 
 14. Relevant 
 
 15. Moral . 
 
 16. Satisfactory 
 
 Page. 
 1 
 1 
 2 
 Z 
 2 
 2 
 2 
 2 
 2 
 3 
 3 
 3 
 3 
 3 
 3 
 3 
 4 
 
 CHAPTER II. 
 
 EELEVANCY AND MATERIALITY. 
 
 § 1. Relevancy — Meaning ot 5 
 
 2. Must tend to prove issue, vrhen 10 
 
 3. As against one of two or more defendants .... 11 
 
 4 Proof of negative 11 
 
 6. Matters pending suit ........ 12 
 
 6. Intentions, good faith, etc. 12 
 
 7. Notice, knowledge, etc. 15 
 
 Chaeacter and Refutation 20 
 
 § 8. In general 20 
 
 9. In criminal cases 22 
 
 10. Impeaching evidence 24 
 
 11. Number of witnesses ........ 25 
 
 12. Proof of corroborating declarations 25 
 
 13." Explaining contradictory statements 26 
 
 14 Sustaining evidence , 26 
 
XXIT TABLE OP CONTENTS. 
 
 Character and Reputation (continued) — Page. 
 
 § 15. Sustaining a witness when impeached by proof of conviction 
 
 for a crime ......-•• 28 
 
 16. Party calling a witness may show his contradictory state- 
 
 ments 28 
 
 17. Cross-exaniiildtion as to coUaiteral facts .... 30 
 
 18. Laying foundation for contradicting witness ... 32 
 
 19. When reputation is in issue 35 
 
 20. Mode of proving reputation in other cases .... 85 
 
 21. Evidence to show bias or corrupt motives .... 36 
 23. Declarations of absent or deceased person to impeach his tes- 
 timony 37 
 
 CHAPTER III. 
 EVIDENCE UNDER PARTICULAR PLEADINGS. 
 
 § 1. Preliminary observations 40 
 
 2. Evidence must be within the issue . . . , . 40 
 
 3. Custom 43 
 
 4. Title in a sti'anger 42 
 
 5. Failure to deny — Effect of 43 
 
 6. Promise to pay note after dishonor — Proof of protest . . 43 
 
 7. Under plea of a statute 48 
 
 8. General issue 44 
 
 9. Bes adjudioata '47 
 
 10. Limitations 47 
 
 11. Discharge from debts 47 
 
 13. Release 47 
 
 13. Matter of inducement — Libel and slander .... 48 
 
 14. Special damage 48 
 
 15. Trespass 49 
 
 16. Negligence 49 
 
 17. Composition- — Payment — Infancy, etc, . ... 49 
 
 18. Illegality , 50 
 
 19. Performance 50 
 
 20. Warranty of title 50 
 
 21. Ownership 50 
 
 23. Value . , , 51 
 
 23. Fraud 51 
 
 24 Contract with a common caTrier 51 
 
 35. Actions on jlidgnlents 53 
 
 26. Breach 52 
 
 27. Negotiable paper 53 
 
 28. Work and nlaterilals , 54 
 
 29. Sales of persbnal property 55 
 
 80. M'oney had and received 57 
 
 31. Actions agaitast receivers, etc. .... 58 
 
 33. Partnel'ship actions 58 
 
 33. Public officers ! ! ' ' 69 
 
TABLE OF CONTENTS. XXV 
 
 Page. 
 
 % 34. Married women 59 
 
 35. Heirs and next of kin 60 
 
 36. Admission in pleading 61 
 
 37. Attacliing an instrument set up as a counter-claim . . 64 
 
 38. Proof of dfefeiises arising after suit brought . " . . .65 
 
 39. Explaining inconsistencies between testimony and pleading . 65 
 
 40. Conspiracy 65 
 
 41. Excuse 65 
 
 43. Modifica'^ion 66 
 
 43. Assigtmeut 66 
 
 44 Two theori'&s 66 
 
 45. Documents' 66 
 
 46. Evidence of couiiter-claim under averment of set-ofiE . . 66 
 
 47. Meantng of characters, etc. .' 66 
 
 48. Incapacity 67 
 
 49. Statute of frauds 67 
 
 50. Jurisdiction 67 
 
 51. Title 67 
 
 53. Accou'nts stated 67 
 
 63. Breach of condition by plaintiff 68 
 
 64. Gonsiderati'on — Want of 68 
 
 55. Contract — Execution, etc. 68 
 
 66. Conditions ,68 
 
 57. Damaiges 68 
 
 58. Duly, etc. 69 
 
 59. Estopf)el 69 
 
 60. Agency 69 
 
 61. Evidence — Effect of prior proceedings upon ... 69 
 63. Evidence where pleading is insufficient .... 69 
 
 63. Adequate remedy at law 70 
 
 64. Authority 70 
 
 65. Contingent allegations ........ 70 
 
 66. Averrtient of a conclusion different from facts alleged . . 70 
 
 67. Fictiofl of law 70 
 
 68. General allegations 70 
 
 69. Ilistake of fact '. ! 71 
 
 70. Evidence under bill of particula'rs 71 
 
 71. Evidence to' prove irrelevant averments .... 71 
 
 72. Evidence of contract 71 
 
 73. Federal coiirt held in a state 71 
 
 CHAPTEE IV. 
 
 EVIDENCE EXCLUDED FROM PUBLIC POLICY. 
 
 I Peivilege of Witness 73 
 
 § 1. In general j^g 
 
 2. DefendaTit in criminal cases 73 
 
 3. Criminating answers 73 
 
XXVI TABLE OF CONTENTS. 
 
 L Privilege op Witness (continued) — Page. 
 
 § 4. Cross-examination of a defendant who offers himself as 
 
 a witness in a criminal case ..... 77 
 
 5. Exception to incriminating answers .... 81 
 
 6. Questions tending to degrade a witness .... 82 
 
 7. Judges 84 
 
 II. Between Counsel and Client 84 
 
 g 8. In general 84 
 
 9. What communications come within the rule ... 86 
 
 10. Extent of the protection 86 
 
 11. Opinion of counsel protected when .... 88 
 13. Documents and papers protected ..... 89 
 
 13. When the attorney is also a party ..... 90 
 
 14. Protection perpetual when ...... 90 
 
 15. What communications are not privileged ... 90 
 IIL Physicians and Patients 94 
 
 § 16. In general 94 
 
 17. When physician prohibited from testifying ... 98 
 
 18. Waiver by patients 99 
 
 19. Clergymen 101 
 
 IV. State Secrets 102 
 
 § 20. In general 103 
 
 31. State officials 102 
 
 22. Grand jurors 103 
 
 V, Husband and Wife 103 
 
 g 23. In general 103 
 
 34. Marriage — Proof of, necessary 106 
 
 25. Illustrations 106 
 
 26. Personal privileges 107 
 
 VI. Res Adjudicata, eto. lOS 
 
 § 27. In general lOS 
 
 38. Between strangers 109 
 
 29. Not pleaded 116 
 
 30. Defenses 116 
 
 31. Surrogate's decree 117 
 
 32. Judgment in a criminal case not evidence in civil case . 117 
 
 33. Parol evidence to explain JL.dicial records . . .118 
 VII. Estoppel 119 
 
 § 34. Pleading necessary when 119 
 
 35. What acts work an estoppel 128 
 
 36. Insurance ^Preliminary proof not conclusive . . 127 
 
 37. Offer to settle or compromise ...... 138 
 
 38. Parties to negotiable instruments 180 
 
 CHAPTER Y. 
 COMPETENCT of WITNESSES. 
 
 § 1. Preliminary examination as to competency of witness . . 131 
 
 S. Competency of witness — In general . . . . . 132 
 
 3. Religious belief 23^ 
 
TABLE OF CONTENTS. XXVU 
 
 Page. 
 
 § 4. Illustrations 134 
 
 5. Infants 135 
 
 6. Illustrations 136 
 
 7. Lunatics and idiots * 137 
 
 8. Illustrations 139 
 
 9. Persons convicted of crime 139 
 
 10. How incompetency removed 140 
 
 11. Husband and wife 141 
 
 12. Extent of rule 143 
 
 13. When relation begins and terminates 143 
 
 14. Exception to rule of exclusion in criminal cases . . . 144 
 
 15. Access 144 
 
 16. Accomplice 145 
 
 17. Corroboration of accomplice 145 
 
 18. Who are not accomplices 146 
 
 Effect of Death ob Disability of Other Persons . , .147 
 
 § 19. In general 147 
 
 30. What conversations and transactions come within the rule . 149 
 
 31. Interested third persons 168 
 
 33. Assignors, grantors, etc., of parties as witnesses . . . 170 
 
 33. Heirs, legatees, distributees, etc., as witnesses . . . 171 
 
 34 A2;ent3 and representatives as witnesses .... 172 
 
 35. Effect of prior testimony on other side 173 
 
 36. What is not a personal transaction 175 
 
 27. Illustrations 177 
 
 CHAPTER VI. 
 
 JUDICIAL NOTICE. 
 
 1 Of What Matters Courts Will Take Judicial Notice . 181 
 
 § 1. In general 181 
 
 3. Public acts — What are 182 
 
 3. Common experience ....... 183 
 
 4. Charters, private statutes, etc. 184 
 
 6. Law of nations 185 
 
 6. Matters taken notice of 185 
 
 7. Matters not taken notice of 193 
 
 8. Official character, duties, acts, etc 192 
 
 9. Political divisions and geographical matters . . . 193 
 
 10. Statutes of other states 194 
 
 11. Statutes as ground of action and defense ... 195 
 XL Eailroads 196 
 
 CHAPTER VII. 
 
 ADMISSIONS AND CONFESSIONS. 
 
 Admissions 199 
 
 § 1. In general 199 
 
 3. Illustrations 203 
 
XXVlll TABLE OF CONTENTS. 
 
 Admissions (continued)— Page. 
 
 § 3. Implied admissions 203 
 
 4. Illustration's 206 
 
 5. Agenfe 208 
 
 6. Principal and surety ........ 210 
 
 7. Admission of former owner of chosefi in action . . .312 
 
 8. Sheriff executing process, etc.1 313 
 
 9. Attorney and counsel 813 
 
 10. Person referred to by party 313 
 
 11. Partners and joint contractors 313 
 
 13. Administrators, executors, trustees, etc. — Admissions by . 314 
 
 13. Confessions 315 
 
 14. Illusti'ations 319 
 
 15. In one's own favor 320 
 
 16. When admissions muSt be taken together . . , .221 
 
 CHAPTER VlII. 
 
 BEST AND SECONDARY EVIDENCE. 
 
 t Of Best and Secondary Evidence 323 
 
 § 1. In general ■ . . .323 
 
 3. Primary evidence and rules for proving .... 334 
 
 3. Proof of document when modern 326 
 
 4 Proof by ordinary witnesses 337 
 
 6. Proof of document when ancient 333 
 
 6. Custody 232 
 
 7. Apparent regularity 333 
 
 8. What instruments must be produced .... 233 
 
 9. Admissions of party in place of writing . . . .333 
 n. Public Documents 234 
 
 § 10. In general 334 
 
 11. Examined copies 234 
 
 13. General records of the nation 335 
 
 13. Exemplifications 335 
 
 14. Copies equivalent to exemplifications . . . .336 
 
 15. Certified copies 336 
 
 16. Legislative acts of states and territories . . . .336 
 
 17. Records and judicial proceedings of state courts, etc. . 337 
 
 18. Public records of state, etc., not judicial . . . .337 
 
 19. Foreign acts of state, judgments, etc 238 
 
 20. Foreign and interstate laws 238 
 
 21. Secondary evidence — What is 339 
 
 22. Secondary evidence admissible when ..... 340 
 
 23. Pi-oof of account 242 
 
 24. When writing need not be produced or accounted for . 344 
 
 25. Sufficiency of search, etc. 245 
 
 26. Notice to produce document necessary when . . 246 
 
 27. Notice to produce — Sufficiency of 249 
 
 28. Effect of notice 1 . 250 
 
TABLE OF CONTENTS. XXIX 
 
 IL Public Documents (continued)— Page. 
 
 § 29. Lawful non-production by a third person . . . 251 
 
 30. Secondary evidence — How proved .... 253 
 
 31. SuflEicifenoy of secondary evidence 253 
 
 32. Memoranda 254 
 
 33. Oral proof of tlie' contents of a deposition . , . 255 
 
 34. Demonstrative evidence 256 
 
 35. Physical examination 258 
 
 36. Photographs, etc 259 
 
 CHAPTER iX. 
 
 PAROL EVIDENCE CONCERNING WRITINGS. 
 
 L Parol Evidence Conceening WiiiTiNas 262 
 
 § 1. In general 263 
 
 2. Contemporaneous parol contract — Presumptions as to . 264 
 
 II. Sealed iNSTRtiMENTS 267 
 
 § 3. Actions at law 267 
 
 4. Equity actions . . . 267 
 
 III. Evidence fok the Interpretation op Documents . 'Z. . 268 
 
 § 5. la general 268 
 
 6. Illustrations 269 
 
 IV. Time of Performance 270 
 
 V. To Identi-py Subject or PersoS 271 
 
 VL To Show Intention op Parties 273 
 
 § 7. Illustrations 274 
 
 VIL Technical Terms Explained by Parol 276 
 
 § 8. F6rnl3 of expression 277 
 
 VIIL Latent Ambiguities 278 
 
 § 9. In construction" of will 280 
 
 IX Patent Ambiguities 281 
 
 X. Custom or Usage 282 
 
 § 10. In genel-al 282 
 
 11. Illustrations 283 
 
 12. Qu'alities of ufeage 287 
 
 13. When not necessarily general 288 
 
 14. How established 388 
 
 XI. Local Usage — Notice op Must be Shown .... 289 
 
 Xn. When Custom Not Valid 293 
 
 XIIL Meaning Of Words Interpreted by Usage .... 293 
 
 XIV. Addij^g In'cident to Contract 393 
 
 CHAPTER X. 
 
 EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE. 
 
 I. Parol Evidence Concerning Writings 295 
 
 § 1. Writings not signed by both parties .... 295 
 
 2. As to the existence, identity or validity of contract . 296 
 
XXX 
 
 TABLE OF CONTENTS. 
 
 Parol Evidence Concerninq Writings (continued) — Page. 
 
 § 3. To show that a writing purporting to be a contract was 
 
 not intended as such 397 
 
 4. Surrounding circumstances 297 
 
 5. When consideration of written contract may be shown to 
 
 be different 300 
 
 6. Receipts, etc. 303 
 
 7. Parol evidence to complete an entire agreement of which 
 
 a writing is only a part 303 
 
 8. Illustrations 308 
 
 9. As to bills and notes 309 
 
 to. To show that writing apparently absolute is not . . 318 
 
 11. Statute of frauds — Admissibility of parol evidence . 318 
 
 12. Bills of lading 319 
 
 13. Subsequent changes of contract 320 
 
 14. Bills of sale — Parol evidence to vary .... 330 
 
 15. Written assignments — Parol evidence as to . . .321 
 
 16. True party and character of party 331 
 
 17. Written leases — Parol evidence as to . . . . 322 
 
 18. Collateral contract by parol 333 
 
 19. Illustrations 320 
 
 20. To show a deed to be a mortgage 338 
 
 31. Conditions upon which a writing was delivered . , 339 
 
 22. Illustrations 331 
 
 23. Immovables, inscriptions, etc. 333 
 
 24. Warranty 334 
 
 25. Mistake 334 
 
 36. Fraud — Parol evidence of 335 
 
 27. When written instrument may be contradicted . . 335 
 
 CHAPTER XL 
 
 BURDEN OF PROOF 
 
 § 1. Preliminary observations . 
 3. Burden of proof — In general 
 
 3. Illustrations 
 
 4. Conditions, exceptions, waiver 
 
 5. Sufficient evidence to go to the jury 
 I. Civil Damages .... 
 
 II. Civil Penalties .... 
 
 III. Limitation of Actions . 
 
 IV. Negligence 
 
 § 6. In genex'al .... 
 
 7. Presumption of negligence 
 
 8. Contributory negligence 
 
 9. Master and servant 
 
 10. Sleeping-car — Money on passengers 
 
 11. Implied admissions of negligence 
 
 12. Negligence or wrongful acts committed abr 
 
 oad 
 
 13. Telegraph message — Prima facie case — Notice 
 
 338 
 339 
 341 
 342 
 343 
 344 
 343 
 346 
 347 
 847 
 348 
 350 
 351 
 352 
 352 
 352 
 354 
 
TABLE OF CONTENTS. XXXI 
 
 Page. 
 
 V. Fraud 354 
 
 § 14 SuflBciency of proof to carry case to jury . . . 354 
 
 15. Innocence — Presumption of in civil actions . . 355 
 
 16. Preponderance of proof sufficient .... 355 
 
 17. Continuous fraudulent transactions . . ■% . . 355 
 
 18. Fraud to do away with a written agreement . . 355 
 
 19. Other frauds 356 
 
 20. Intent — When party may swear to it . . . . 356 
 
 21. Fictitious consideration fraudulently made up . . 358 
 
 22. Burden of proof on creditor to show fraud . . . 358 I 
 
 23. To set aside an assignment for creditors . . . 359 
 VI. Conversion — Demand 359 
 
 VII. Defenses 359 
 
 § 24. Illustrations 359 
 
 25. Illegality of contract 362 
 
 26. Bona ^de holder — In general 363 ■ 
 
 27. Defenses to, how proved 364 
 
 88. Usury . . .367 
 
 29. Constructive fraud ^ Burden of proof . . . 368 
 
 VIII. Payment 369 
 
 IX. Assignment 373 
 
 § 30. In general 373 
 
 31. Presumed when .373 
 
 33. Consideration of ' . . 373 
 
 33. By gift 374 
 
 34. Execution and delivery of written assignment . . 374 
 
 35. By trustees, executors, etc 375 
 
 X Corporations and Corporate Existence . . . .375 
 
 § 36. De facto 375 
 
 37. Estoppel by and against 378 
 
 38. Poweis of corporations 379 
 
 39. Contracts of 379 
 
 40. Torts of 380 
 
 41. Books and papers of 381 
 
 XI. Executors and Administrators 382 
 
 § 42. Title 383 
 
 43. Acts and declarations of repi-esentatives . . . 382 
 
 XII. Treason, Perjury, etc. \ . . 38B 
 
 § 44. Plurality of witnesses 383 
 
 XIII, Actions to Charge Next of Kin with Ancestor's Debt . 387 
 
 XIV. Advancements 387 
 
 XV. Wills 389 
 
 S^ 45. Extrinsic evidence affecting 389 
 
 XVI. Ademption and Lapsing 394 
 
 XVIL Citizenship and Alienage 395 
 
 § 46. In general 395 
 
 XVIII. Death — Proof of 396 
 
 XIX. Marriage — Proof of 397 
 
xxxu 
 
 TABLE OF OONTEIJTS. 
 
 Page. 
 
 XX. Issue and Legitimacy . 
 
 § 47. Issue , 
 48. Legitimacy . 
 XXL Husband and Wife 
 
 § 4g. Title — Law of place 
 
 50. Agency of one for the other 
 
 51. Wife's title ... 
 53. Actions by and against wife 
 53. Actions by and against husband 
 
 XXII. Public Officers .... 
 
 § 54. Title of office — When strict proof of 
 55. When strict proof of not necessary 
 XXIIL Paetnees and Joint Contractoes 
 § 56. Joint contractors 
 
 57. Partners — Proof of partnership 
 
 58. Partners — How far liable . 
 
 59. Dissolution — Effect of 
 
 js necessary 
 
 CHAPTEE XII. 
 HEARSAY EVIDENCE. 
 
 I. Op Hearsay Evidence 
 
 § 1. In general ...... 
 
 3. Hearsay — What is — When admissible . 
 II. Matters op Public and General Interest . 
 
 § 3. Public interest — What is 
 
 4. Public and general — Distinction between 
 
 5. What matters involve public or general interest 
 
 6. Pights must be ancient and declarants dead 
 
 7. Ante litem motam 
 
 8. Lis mota — What is . . . .;. . 
 
 9. Declarations post litem motam 
 
 10. Witness need not specify from whom he heard 
 
 11. Matters not admissible as hearsay . 
 
 12. Particular facts ..... 
 18. Maps, documents, etc. .... 
 
 IIL Hearsay as to Facts op Family History . 
 § 14. In general 
 
 15. Facts that may be proved 
 
 16. By whose declarations proved 
 
 17. Marriage 
 
 18. Family records ..... 
 
 19. Old documents, inscriptions, eta . 
 
 20. Declarations of a deceased person . 
 
 21. Of other persons, admissible when . 
 
 22. Declarations made in view of controversy 
 
 23. When declarant alive .... 
 
 24. Declarations in the course of duty . 
 
TABLE OF CONTENTS. XXX 111 
 
 III. Hearsay as to Facts of Family History (continued) — Page. 
 
 § 25. Public records 430 
 
 36. Recital of public facts in statutes, etc. .... 440 
 
 27. Entries made by deceased attorneys and officers . . 441 
 
 CHAPTEE XIII. 
 
 HEARSAY EVIDENCE (Continued). 
 
 I. Of Ancient Possession 445 
 
 § 1. In general 445 
 
 2. Declarations accompanying possession .... 446 
 
 3. Private titles — Hearsay not admissible as to . . . 447 
 
 4. Maps 448 
 
 5. Perambulations 448 
 
 6. Modern exercise of right ...... 449 
 
 7. Private boundaries — Hearsay to establish . . . 44!) 
 
 8. Deceased surveyors — Declarations of . . . .449 
 
 9. Owner's declarations 450 
 
 II. Dying Declarations 450 
 
 § 10. In general • 450 
 
 11. Preliminary examination ...... 453 
 
 13. Competency of declarations ...... 458 
 
 13. To material matters only 454 
 
 14. Declarations must be complete ..... 454 ■ 
 
 15. Children — Dying declarations of 455 
 
 16. Weight to be given dying declarations .... 455 
 
 III. Declarations Against Interest 456 
 
 § 17. In general 456 
 
 18. Against pecuniary interest ...... 457 
 
 19. Conditions precedent to admissions .... 459 
 
 20. Declarations of deceased grantor 460 
 
 21. Declarations of decedent against his representatives . 461 
 23. Declarations of testator as to contest of lost will . . 461 
 23. Donor 461 
 
 IV. Memoranda 46i 
 
 § 34. Entries by a public officer from reports by other officers 461 
 
 V. Shop-books, Account-books, etc. 463 
 
 § 35. In general 463 
 
 36. Time of entiy, material when 467 
 
 VL Memoranda as Evidence 468 
 
 § 37. In general 468 
 
 38. Refreshing memory by . . . , . . . 468 
 
 29. When memoranda must be made by a witness . . 471 
 
 30. When witness need not have recollection independent of 
 
 memorandum ........ 471 
 
 31. Memoranda primary evidence, when .... 471 
 VII. Evidence Given in a Former Proceeding .... 474 
 
 § 83. In general 474 
 
 33. Same parties — Cross-examination 476 
 
 34. Mode of proof 476. 
 
XXXiv TABLE OF CONTENTS. 
 
 VIII. Miscellaneous 
 
 IX Books of Corporations as Evidence . 
 
 35. In general ..... 
 
 36. Records of corporations . 
 
 37. Against wliom competent . . 
 
 38. Minutes proved by parol, when 
 
 39. Authentication of corporate records 
 
 40. Parol evidence to vary corporate minutes 
 
 41. Accounts and business entries . . 
 
 Page. 
 
 . 477 
 
 . 478 
 
 . 478 
 
 . 481 
 
 . 483 
 
 . 483 
 
 . 483 
 
 . 483 
 
 . 483 
 
 CHAPTEE XIV. 
 
 HEAESAY EVIDENCE (Continued). 
 
 I. Of the Ees Gest^ "^ . 484 
 
 § 1. In general 484 
 
 3. Tests for determining when a declaration is . . ,490 
 
 3. Documents ......... 493 
 
 4. Continuing circumstances, when res gestae . . . 494 
 6. Declarations of agent or representative .... 494 
 
 6. Illustrations 495 
 
 6a. Statements inter alios 498 
 
 7. Declarations as to state of health 499 
 
 8. Statements of party injured to his physician and others . 500 
 II. Declarations op Assignor Against Assignee . . .505 
 
 § 9. In general 505 
 
 10. Declarations before vendor became owner . . . 507 
 
 11. Vendor of chattels or choses on action . . . .508 
 
 13. Made at time of selling 511 
 
 18. Vendee must be a purchaser for value to exclude decla- 
 rations 511 
 
 14. Declarations of assignor for benefit of creditors prior to 
 
 assignment 511 
 
 15. Illustrations 512 
 
 III. Conspirators — Declarations of 514 
 
 § 16. In general 514 
 
 17. Criminal conspiracy 515 
 
 18. Illustrations • . . .516 
 
 19. Declarations as to ownership 518 
 
 20. Acts and declarations as to fraud and fraudulent convey- 
 
 ances 518 
 
 21. Acts and declarations of or in the presence of donor, 
 
 testator or intestate 520 
 
 23. Telephone conversation 521 
 
 CHAPTER XV. 
 OPINIONS AND CONCLUSIONS. 
 
 I. Of Opinions and Conclusions 523 
 
 § 1. In general 533 
 
 2. General rule 525 
 
TABLE OF CONTENTS. SXXV 
 
 L Op Opinions and Conclusions (continued)— Page. 
 
 % 3. Illustrations 537 
 
 4. When allowable .530 
 
 5. Opinions not allowable when ...... 534 
 
 II. Forms of Questions and Answers 537 
 
 III. What Witnesses May State Opinions 544 
 
 IV. Opinions as to Quality, Distance, Speed, Time . . .545 
 V. Care, Skill, Negligence — Proper Cause of Action . . 547 
 
 VI. Sanity and Mental Capacity 553 
 
 VII. Motives, Intent, Thoughts, Belief 557 
 
 VIII. Opinions as to Legal Questions 563 
 
 IX Opinions When Facts as to Contracts 565 
 
 X Physical Conditions 566 
 
 XL Handwriting 573 
 
 § 6. Autograph and holograph 573 
 
 7. Comparison ......... 575 
 
 8. Cross-examination on other writings .... 581 
 XIL Appearance, Identity, Age, Quality 5h3 
 
 XIIL Location, Language 584 
 
 XIV. Miscellaneous 586 
 
 XV. Opinions of Non-experts 587 
 
 CHAPTER XVI. 
 
 PRESUMPTIVE EVIDENCE. 
 
 L Of Presumptive Evidence in General 590 
 
 § 1. Definition 590 
 
 3. Presumptions in general 593 
 
 3. Fictions of law 593 
 
 4. Circumstances and presumptions — Difference between . 594 
 
 5. Presumptions juris et dejMJ'e 595 
 
 6. No arbitrary rule of presumption fixed .... 596 
 
 7. Circumstances inflexible proof when .... 596 
 
 8. Every one is presumed to know the law when . , 598 
 
 9. Estoppels as presumptions ...... 598 
 
 IL Presumptions that Officers Do Their Duty . . . 599 
 
 § 10. Public officers 599 
 
 11. Concerning person's status 600 
 
 13. A party presumed to know the contents of a writing 
 
 signed by him 601 
 
 IIL Interest of Husband and Wife 601 
 
 IV. A Party Must Show a Fact of Which He is Best Cogni- 
 zant 603 
 
 V. Presumption of Jurisdiction op Court , . . .603 
 
 § 18. General jurisdiction 603 
 
 14. Regularity of proceedings 603 
 
 15. Limited jurisdiction — Courts of 604 
 
 O 
 
XXXVi TABLE OF CONTENTS. 
 
 Page. 
 
 VI. Presumption as to Carriers, Bailees, ETa . . . .605 
 
 § 16. Negligence of 605 
 
 17. In an accident case 606 
 
 18. Innkeepers 607 
 
 19. By ships, etc. 608 
 
 30. By carrier as to passengers 609 
 
 21. Contributory negligence 610 
 
 23. As to property 6U 
 
 33. By railroad trains 613 
 
 VIL Official Acts — Presumption op Authority . . .613 
 
 § 34 Proof of official capacity 613 
 
 VIII. Presumption that the Usual Course of Business Was Fol- 
 lowed 614 
 
 IX Agreement to Fat for Services Presumed, when . . 615 
 
 CHAPTER XVII. 
 
 PRESUMPTIVE EVIDENCE (Continued). 
 
 § 1. Presumption as to negotiable paper . . . 
 
 2. Presumption as to consideration of commercial paper 
 
 3. Presumption of protest of bills or notes . • _^ 
 
 4. Mailing notice — Presumption as to 
 
 5. Presumption as to documents regular on their face 
 
 6. Presumption as to correctness of dates 
 
 7. A person presumed to act honestly 
 
 8. Presumption as to marriage . 
 
 9. Presumption of legitimacy . . 
 
 10. Presumption against a spoliator . 
 
 11. Alteration, suppression, destruction or manufacturing of evi- 
 
 dence ..... 
 
 13. Presumption of continuance of things 
 
 13. Domicile, residence, solvency, infancy, 
 
 14. Sanity or insanity .... 
 
 15. Character and habits of persons , 
 
 16. Presumptions not retrospective . 
 
 17. Presumptions of life 
 
 18. Presumed to be dead when . . 
 
 19. Absentees — Who are . . . 
 
 20. Not been heard of — Meaning of . 
 
 21. Absentee's residence — Meaning of 
 23. Presumption of death before seven years 
 
 33. When presumption of death after seven years does not 
 
 34. Presumption of survivorship of persons who perished 
 
 same accident 
 
 25. Where the age, health or sex may raise a presumption 
 
 vivorship 
 
 26. Presumptions of identity 
 
 partnership 
 
 616 
 618 
 618 
 618 
 619 
 619 
 619 
 621 
 621 
 621 
 
 622 
 628 
 625 
 626 
 626 
 627 
 627 
 628 
 
 629 
 629 
 arise 631 
 in the 
 
 . 632 
 sur- 
 
 of 
 
 683 
 
TABLE OF CONTENTS. XXXVll 
 
 I 
 
 PEEStpiPTipNS OF Intent 633 
 
 § jil. In general 633 
 
 38. Revocation of wUl 634 
 
 29. When the doing of an act does not raise a presumption . 635 
 
 30. A person is presumed to do what he has the right and power 
 
 to do 635 
 
 31. Presumption from the course of nature .... 636 
 33. A person is presumed to do what it is his interest to do , 637 
 
 33. Presumption of payment 638 
 
 34 Other than by lapse of time 639 
 
 CHAPTER XYIII. 
 
 PRESUMPTIVE EVIDENCE (Contintted). 
 
 1 Foeeign Laws 641 
 
 § 1. Presumed to be the same as the laws of the forum . . 641 
 
 2. Acts malum in se 643 
 
 3. When there is no presumption that the common law is in 
 
 force in a state or country 643 
 
 4 The term "law " does not include the statute law of the 
 
 forum 643 
 
 IL Presumption as to Alteration op Instrument . . . 643 
 § 5. Alteration presumed to have been made before execu- 
 tion , . . 643 
 
 6. When party offering an altered paper must explain it . 644 
 
 IIL As to Receipt of Letters 645 
 
 IV. Authority — Agency 645 
 
 V. As TO Delivery of Deed, etg 645 
 
 VL Presumption prom Possession and Lapse op Time , . 646 
 
 § 7. Lawful origin presumed from possession . . . 646 
 
 8. Of conveyance by trustees 647 
 
 9. Prescription, title by 648 
 
 10. Dedication of highway 650 
 
 11. License " . . .651 
 
 12. Extinguishment of easement by cessation of enjoyment 652 
 
 13. Land under water 653 
 
 14. Highways 654 
 
 15. Walls, banks, etc 654 
 
 16. Legal title presumed from possession, when . • . . 655 
 VIL Innocence — Presumption in Favor of 655 
 
 § 17. In general 655 
 
 18. Absence of motive 656 
 
 19. Good character of party accused 656 
 
 20. Alibi 657 
 
 21. Insanity 657 
 
 22. Communication to defendant 658 
 
XXXViii TABLE OF CONTENTS. 
 
 Page. 
 
 VIIL What the Prosecution Must Establish . « . .659 
 
 § 23. In general 659 
 
 24. Corpus delicti 661 
 
 25. Discovery of the body in case of murder . . .663 
 
 26. Cause of death 663 
 
 27. Infanticide 663 
 
 IX. Presumption of Guilt 664 
 
 § 38. In general . - . ^ 664 
 
 29. Motive 665 
 
 30. Other crimes 'ff . 665 
 
 31. Malice 667 
 
 33. From attempt or preparation to accomplish the same 
 
 crime at another time ....... 667 
 
 33. From threats or expressions of ill-will .... 668 
 
 34. From recent possession of the fruits of crime . . . 670 
 
 35. Unexplained suspicious appeai-ances .... 671 
 
 36. From attempts to stifle investigation .... 671 
 
 37. Concealment, disguise, flight, etc. 671 
 
 38. From silence of accused when charged with crime . . 673 
 89. Spoliation of evidence ....... 673 
 
 40. Affectation of grief and fabrication of evidence . . 673 
 
 41. Proof of identity of the person or thing .... 673 
 X Presumption Against Crime 675 
 
 CHAPTEE XIX. 
 
 DAMAGES — PRACTICE AS TO PROOF OF. 
 
 1 Manner or Provins Value in Acitons for Property ob 
 
 Services 676 
 
 § 1. In general . . . j 676 
 
 3. Presumption of damage 677 
 
 3. Expert evidence of value ...... 677 
 
 4 What witnesses allowed to give opinion as to value . 678 
 
 6. Illustrations 679 
 
 6. Offers made for property 685 
 
 7. Price paid — Sales ,686 
 
 8. By sales or value of other property 687 
 
 9. Sum inserted in deed no evidence of value of land . . 690 
 
 10. Where there is no market value C91 
 
 11. Work, service, damages 691 
 
 18. Opinion as to value of services ..... 692 
 
 13. Proof of value in action on special contract . . .693 
 
 14. Benefits to premises 692 
 
 IL Pecuniary Conditions, etc. 693 
 
 g 15. In general 693 
 
 16. Breach of promise of marriage — Reputation of defend- 
 ant's wealth 698 
 
TABLE OF CONTENTS. XXXIX 
 
 III. Libel — Repetition 694 
 
 § 17. In general 694 
 
 18. Repetition of libel after action commenced . . . 695 
 
 CHAPTEE XX, 
 
 PRACTICE IN ADMISSION AND REJECTION OF EVIDENCE. 
 
 1 Examination in Chief 696 
 
 § 1. Leading questions 696 
 
 2. Refreshing memory by writing 699 
 
 3. Discretionary with judge when ..... 700 
 
 4. Right of cross-examination ' • 703 
 
 5. Extent of cross-examination 705 
 
 6. Cross-exaniination as to credit 706 
 
 7. Opening door for cross-examination .... 709 
 
 8. As to previous statements in writing .... 710 
 
 9. Re-examination 713 
 
 10. Recross examination . 714 
 
 11. Whole writing — Limit of rule as to .... 715 
 
 12. Papers made at different times 715 
 
 II. Objections to Evidence 715 
 
 § 13. In general 717 
 
 14. When general objection suflScient 716 
 
 15. When the objection must assign the particular ground . 717 
 
 16. One objection to same class of evidence sufficient . . 718 
 
 17. Answer irresponsive in part — Remedy of opposite party 718 
 
 18. Questions by co-defendant 719 
 
 19. Direction to disregard evidence ..... 720 
 
 20. When motion to strike out comes too late ... 720 
 
 21. Objections — When to be made 720 
 
 IIL Exceptions 721 
 
TABLE OF CASES. 
 
 References are to pages. 
 
 Aaron v. State (37 Ala. 106), 216. 
 Aaronson v. McCauley (46 N. Y. State 
 
 Kep. 564), 401. 
 Abbey v. Lill (5 Bing. 299), 230. 
 Abbott V. Dwinnell (64 Wis. 514), 543. 
 Abbott V. Heath (84 Wis. 314), 571. 
 Abbott V. Seventy Six L. & W. R. Co; 
 
 (87 Cal. 333), 497. 
 Abel V. State (90 Ala. 631), 413. 
 Abendroth v. Van Tolsen (181 U. S. 
 
 66), 58. 
 Abenheim v. Samuel (16 N. Y. State 
 
 Rep. 907), 541. 
 Abercrombie v. Stillman (77 Tex. 589), 
 
 655. 
 Able V. Brewster (58 Hun, 606), 645. 
 Achilles v. Achilles (137 111. 589), 149. 
 Acker v. Bender (33 Ala. 230), 299. 
 Acklea v. Hickman (63 Ala. 594), 470. 
 Adamant Plaster Co. v. National 
 
 Bank (5 Wash. 232), 287. 
 Adams v. Adams (22 Vt. 30), 388. 
 Adams v. Adams (31 Wall. 185), 63. 
 Adams v. Davidson (10 N. Y. 309), 509. 
 Adams v. Field (21 Vt 256), 574. 
 Adams v. Guice (30 Miss. 397), 340, 353. 
 Adams v. Insurance Co. (76 Pa St. 
 
 411), 292. 
 Adams v. Internal Imp. Co. (37 Fla. 
 
 366), 170. 
 Adams v. Main (3 Ind. App. 232), 403. 
 Adams v. Morrison (113 N. Y. 153), 
 
 156. 
 Adams v. Clean (64 Hun, 268), 464. 
 Adams v. People (3 Hun, 654), 473. 
 Adams v. Preston (22 How., U. S., 
 
 473), 114. 
 Adams v. State (38 Fla. 511), 705. 
 Adams v. State (87 Ind. 573), 635. 
 Adams v. Wheeler (97 Mass. 67), 30. 
 
 Adams v. Yoeman (39 Ga. 479), 628. 
 Adams County v. Cunningham (81 
 
 Wis. 440), 183. 
 Adee v. Hallett (3 App. Div. 308), 300. 
 Adle V. Metroger (1 La. Ann. 254), 315. 
 Mtna, Life Ins. Co. v. Denning (123 
 
 Ind. 384), 99. 
 Agricultural Ins. Co. v. Potts (55 N. J. 
 
 L. 158), 498. 
 Ah How V. Furth (13 Wash. 550), 139. 
 Ahl V. Ahl (176 Pa. St. 466), 464. 
 Aiken v. Kennison (58 Vt 665), 499. 
 Aimrie V. Archibald (25 Can. S. C. 368), 
 
 280. 
 Akberg v. John Kress Brew. Co. (65 
 
 Hun, 182), 307. 
 Alabama v. Fulgheim (94 Ala. 571), 
 
 350. 
 Alabama C. C. & I. Co. v. Pitts (98 
 
 Ala. 285), 550. 
 Alabama G. S. R. Co. v. Carroll (53 
 
 Am. & Eng. Ry. Cas. 556), 358. 
 Alabama G. S. R Co. v. Frazer (93 
 
 Ala. 45). 340. 
 Alabama G. S. R Co. v. Hill (93 Ala. 
 
 514X 533. 
 Alabama G. S. R. Co. v. McDonough 
 
 (97 Tenn. 355), 606. 
 Alabama, etc. R Co. v. Babord (37 
 
 Ala. 489), 480. 
 Alabama Midland R Co. v. Brown (98 
 
 Ala. 647). 335. 
 Alabama Midland R Co. v. Coskey (93 
 
 Ala. 254), 256. 
 Alabama & V. R Co. v. Searles (71 
 
 Miss. 744), 677. 
 Albany v. McNamara (117 N. Y. 168), 
 
 614. 
 Albany Co. Sav. Bank v. McCarthy 
 
 (149 N. Y. 71), 149, 153, 164. 
 
xlii 
 
 TABLE OF CASES. 
 
 Heferences are to pages. 
 
 Albatross v. Wayne (16 Ohio St 513), 
 
 298. 
 Albert v. Sweet (116 N. Y. 363), 545. 
 Albert! v. N. Y., L. E. & W. R Co. 
 
 (118 N. Y. 77), 98, 360. 
 Alberti v. N. Y, L. E. & W. R Co. 
 
 (43 Hun, 421), 440. 
 Alberti v. United States (163 U. S. 499), 
 
 183. 
 Albin V. Lord (39 N. H. 205), 399. 
 Albion Lumber Co. v. De Nobra (44 
 
 U. S. App. 347), 209. 
 Albright v. Carley (40 Tex. 105), 556. 
 Albro V. Figurea (60 N. Y. 630), 63. 
 Alden v. St. Peter's Parish (39 L. R A, 
 
 233, 158 IlL 631), 192. 
 Alexander v. Alfred (89 Ky. 105), 157. 
 Alexander v. Butcher (70 N. Y. 385), 
 
 155, 163. 
 Alexander v. Foreman (7 Ark. 252), 
 
 235. 
 Alexander v. Keiser (149 Mass. 321), 
 
 35. 
 Alexander v. Smoot (13 Ired., N. C, 
 
 461), 463. 
 Alexander v. United States (138 U. S. 
 
 353), 84, 492. 
 Alfred v. Baker (53 Ind. 279), 641. 
 Alger V. Kennedy (49 Vt. 109), 833. 
 Algers V. Johnson (6 S. C, T. & C, 
 
 632), 55. 
 Alivon V. Fiirnival (1 C, M. & R 277), 
 
 241. 
 AUeman v. Manning (44 Mo. App. 4), 
 
 388. 
 Allen V. Allen (48 Minn. 463), 323. 
 Allen V. Bishop (35 Wend. 414), 883. 
 Allen V. Bodine (6 Barb. 388), 706. 
 Allen V. Brovvn (88 Ga. 161), 625. 
 Allen V. Chouteau (103 Mo. 309), 175. 
 Allen V. Com. (11 Ky. L. Rep. 555), 
 
 517. 
 Allen V. De Gi-odt (105 Mo. 443), 465. 
 Allen V. Gardner (44 Kan. 387), 580. 
 Allen V. Grove (18 Pa. St. 377), 450. 
 Allen V. Killinger (8 Wall. 480), 818. 
 Allen V. Patterson (7 N. Y. 350), 00. 
 Allen V. Perry (68 Me. 383), 132. 
 Allen V. Richard (88 Mo. 55), 45. 
 Allen V. State (10 Ohio St 287), 145. 
 
 Allen V. State (40 Ala. 344), 146. 
 Allen V. Thatcher (1 Blackf. 399), 234. 
 Alliger v. Mail P. Ass'n (66 Hun, 626), 
 
 677. 
 AUoway v. Nashville (88 Tenn. 510), 
 
 377. 
 Alpers V. Schamel (75 Cal. 590), 58. 
 Alshuler v. Schiff (164 111. 398), 830. 
 Alston V. Nelson (44 Iowa, 130), 63. 
 Alvord V. Spring V. G. Co. (100 Oal. 
 
 547), 348. 
 Amadou v. IngersoU (34 Hun, 132), 
 
 530. 
 Ambler v. Phillips (132 Pa. St 167), 
 
 553. 
 Ambs V. Chicago, St P. & O. R Co. 
 
 (44 Minn. 266), 633. 
 American Exch. Bank v. New York 
 
 B. & P. Co. (148 N. Y. 698), 313. 
 American Oak Ext Co. v. Ryan (113 
 
 Ala. 337), 531. 
 American Oak L. Co. v. Standard G. 
 
 S. Co. (9 Utah, 87), 353. 
 American Surety Co. v. Paisley (73 
 
 Fed. Rep. 470), 248, 356. 
 American U. T. Co. v. Dougherty (89 
 
 Ala. 191), 477. 
 American Wire Nail Co. v. Bayless 
 
 (18 Ky. L. Rep. 176), 381. 
 Amery v. Melrose (162 Mass. 556), 684. 
 Ames v. Quinby (106 U. S. 342), 71. 
 Amherst v. Root (3 Met 522), 211. 
 Amnions v. Dyer (78 Tex. 639), 447. 
 Anderson v. Bank of British Colum- 
 bia (2 Ch. D. 644), 91. 
 Anderson v. Edwards (123 Mass. 373), 
 
 471. 
 Anderson v. Fetzer (75 Wis. 562), 403. 
 Anderson v. Middle & E. T. C. R (91 
 
 Tenn. 44), 309. 
 Anderson v. Newberry (2 Heisk. 653), 
 
 135. 
 Anderson v. Parker (6 Cal. 197), 432. 
 Anderson v. Prairie School Tp. (1 Ind. 
 
 App. 84), 342. 
 Anderson v. Rome, W. & O. R Co. 
 
 (54 N. Y. 834), 381. 
 Anderson v. State (79 Ala. 5), 455. 
 Andrews v. Brewster (124 N. Y. 483), 
 
 802. 
 
TABLE OF OASES. 
 
 xliii 
 
 Beferencei are to pages. 
 
 Andrews v. Chadbourne (15 Barb. 
 
 147), 63. 
 Andrews v. Davidson (17 N. H, 413), 
 
 113. 
 Andrews v. Hunt (7 Mackey, 311), 163, 
 
 167. 
 Andrews v. Lyon (11 Allen, 349), 123. 
 Andrews v. Motley (12 C. B., N. S., 
 
 536), 619. 
 Andrews v. Youmang (83 Wis. 81), 358. 
 Androscoggin Bank v. Kimball (10 
 
 Gush. 378), 316. 
 Angell V. Duke (10 Q. B. 174), 325. 
 Angell V. Pickard (61 Mich. 561), 557. 
 Angevine v. Angevine (48 Barb. 417), 
 
 161. 
 Angle V. N. W. Life Ins. Co. (93 U. S. 
 
 330), 363. 
 Anglesea v. Hatherton (10 M. & W. 
 
 318), 419. 
 Annis v. Wilson (15 Colo. 236), 331. 
 Anon. (Vin. Abr., Ev., Q., pi. 7), 372. 
 Anonymous (7 So. Rep., Ala., 100), 358. 
 Ansley v. Charles (9 Ala. 973), 113. 
 Anthoine v. Coit (2 Hall, N. Y., 40), 
 
 820. 
 Appleby v. Albany Brew. Co. (58 Hun, 
 
 605), 585. 
 Archangelo v. Thompson (3 Camp. 
 
 630), 380. 
 Archer v. Helm (69 Miss. 730), 494 
 Archer v. Helm (70 Miss. 874), 36. 
 Archibald v. State (133 Ind. 182), 451. 
 Arff V. State F. Iris. Co. (135 N. Y. 57), 
 
 885. 
 Argotsinger v. Wines (83 N. Y. 308), 
 
 532. 
 Argus Co. V. Mayor, etc. (55 N, Y. 495), 
 
 880. 
 Armistead v. Wilder (17 Q. B. 361), 
 
 607. 
 Armstrong v. Burroughs (6 Watts, 
 
 366), 579. 
 Armstrong v. Chicago, M. & St P. R. 
 
 Co. (45 Minn. 85), 549. 
 Armstrong v. Garrow (6 Cow. 465), 
 
 405. 
 Armstrong v. State (30 Fla. 170), 554. 
 Armstrong v. United States (13 Wall. 
 
 154), 440. 
 
 Armstrong v. Weed (62 N. Y. 250), 60. 
 Armstrong v. Wing (10 Hun. 530), 387. 
 Arnold v. Allen (9 Daly, 198), 711. 
 Arnold v. Arnold (13 Vern. 363), 134. 
 Arnold v. Blaker (6 C. P. 433), 650. 
 Arnold v. Cheesebrough (46 Fed. Rep. 
 
 700), 35. 
 Arnold v. Cheesebrough (41 Fed. Rep. 
 
 74), 89. 
 Arnold v. Corman (50 Pa. St. 361), 136. 
 Arnold v. Higgins (11 Q. B., U. C, 446), 
 
 564. 
 Ainold V. Jones (36 Tex. 335), 819. 
 Arnold v. Stackpole (11 Mass. 37), 316. 
 Arnot V. Erie Ry. Co. (5 Hun, 608), 
 
 134. 
 Arthur v. Arthur (38 Kan. 691), 573. 
 Arthur v. James (28 Pa. St 336), 139. 
 Ashborne v. Waterbury (69 Conn. 
 
 217), 702. 
 Ashley v. Martin (50 Ala. 537), 190. 
 Assurance Co. v. Drenner (116 U. S, 
 
 461), 406. 
 Astor V. New York Arcade R. Co. (113 
 
 N. Y. 93), 377. 
 Astor V. Union Ins. Co. (7 Cow. 303), 
 
 293. 
 Atchison, T. & S. F. R Co. v. Elder 
 
 (57 Kan. 312), 609. 
 Atchison, T. & S. F. R. Co. v. Hague 
 
 (54 Kan. 284), 16. 
 Atchison, T. & S. F. R Co. v. Head- 
 land (18 Colo. 477), 197. 
 Atchison, T. & S. F. R Co. v. Walton 
 
 (3 N. M. 819), 618. 
 Atherton v. Wilton (44 N. H. 452), 407. 
 Atkeson v. Lay (115 Mo. 538, 48 Alb. 
 
 L. J. 89), 190. 
 Atkinson v. Truesdell (137 N. Y. 330), 
 
 870. 
 Atkinson's Lessees v. Cummings (9 
 
 How. 479), 269. 
 Atlanta V. Schmeltzer (83 Ga.609), 378. 
 Atlantic St R Co. v. Hardage (93 Ga. 
 
 457), 16, 55. 
 Attorney-General v. Dean of Windsor 
 
 (24 Beav. 679), 647. 
 Attorney-General v. Hitchcock (1 Ex. 
 
 91, 94, 103), 86. 
 Atwater v. Clancy (107 Mass. 369), 334. 
 
xliv 
 
 TAJ3LE OF CASES. 
 
 References are to pages. 
 
 Atwell V. Lynch (30 N. Y. 519). 253. 
 Atwood V. Canrick (86 Mich. 99), 425. 
 Auberle v. McKeesport (179 Pa. St. 
 
 331), 534. 
 Auburn Sav. Bank v. Brinkerhoof (56 
 
 Hun, 391), 163. 
 Auerback v. Peetsch (44 N. Y. State 
 
 Eep. 498), 617. 
 Auerback v. Wylie (84 Tex. 615), 635. 
 Auers v. Watson (137 U. S. 584), 424. 
 Augusta v. Lombard (93 Ga. 283), 17. 
 Augusta & S. R Co. v. Randall (85 Ga 
 
 295), 475. 
 Aultman v. Adams (35 Mo. App. 503), 
 
 153. 
 Aultman & T. Co. v. Gorham (87 Mich. 
 
 233), 310. 
 Aurora v. Hillman (91 111. 61), 588. 
 Austin T. Bailey (37 Vt 219), 650. 
 Austin V. Holland (69 N. Y. 571). 411. 
 Austin V. Southworth (68 N. Y. State 
 
 Rep. 91), 717. 
 Austin V. State (14 Ark. 555), 785. 
 Austin V. Williams (3 Ohio St. 64), 289. 
 Autanqua Co. v. Davis (33 Ala. 713), 
 
 487. 
 Avery v. Avery (48 Cal. 193), 468. 
 Avery v. Mead (46 Hun, 683), 46. 
 Avery v. N. Y. C. & H. R. R Co. (131 
 
 N. Y. 31), 544. 
 Avery v. N. Y. C. & H. R R. Co. (106 
 
 N. Y. 142), 66. 
 Avery v. Watson (133 U. S. 894), 88. 
 Aveson v. Kinnaird (6 East, 196), 499. 
 Ayers v. Ayers (28 Mo. App. 97), 107. 
 Ayers v. Bain (89 Iowa, 518), 300. 
 Ayers v. Weed (16 Conn. 291 \ 392. 
 Aylesford Peerage Case (11 App. Cas. 
 
 1), 14, 144 
 Ayres v. Duprey (27 Tex. 593), 34. 
 Ayres v. Harris (77 Tex 108), 255. 
 Ayres v. Hewitt (19 Me. 281), 226. 
 Ayres v. Watson (133 U. S. 394), 34 
 Ayres v. Weeks (6 L. R A. 716, 65 N. 
 H. 248), 396. 
 
 Baacke v. Baacke (50 Keb. 18), 619, 635. 
 Babbage v. Powers (180 N. Y. 281, 41 
 N. Y. State Rep. 521), 187. 
 
 Babcook v. Booth (2 Hill, 181), 882. 
 Backdahl v. Grand Lodge A. O. U. W. 
 
 (46 Minn. 61), 436. 
 Backer v. Meyer (43 Fed. Rep. 702), 
 
 601. 
 Backus V. Richardson (5 Johns. 476), 
 
 48. 
 Bacon v. Charlton (7 Cush. 581), 500. 
 Bacon v. Chesney (1 Stark. 192), 211. 
 Bacon v. Frisbie (80 N. Y. 349), 85, 88. 
 Badart v. Foulon (80 Md. 579), 311. 
 Badische A. & S. F. v. Schott (1892, 3 
 
 Ch. 447), 362. 
 Bagley v. Grand Lodge A. O. U. W. 
 
 (132 111. 498), 479. 
 Bagley v. Kennedy (85 Ga. 703), 646, 
 
 655. 
 Bagley v. Mickle (9 Cal. 430), 253. 
 Bagley & S. Co. v. Saranac R P. & P. 
 
 Co. (48 N. Y. State Rep. 444), 273, 
 
 277. 
 Bailey v. Bailey (41 Hun, 424), 105. 
 Bailey v. Bailey (36 Mich. 185), 638. 
 Bailey v. Kalamazoo Pub. Co. (40 
 
 Mich. 351), 188. 
 Bailey v. Rome, W. & O. R Co. (139 
 
 N. Y. 803, 54 N. Y. State Rep. 550), 
 
 530. 
 Bailey v. Show (24 N. H. 300), 623. 
 Bailey v. Wood (34 Ga 164), 413. 
 Baines v. Burbridge (15 La. Ann. 628), 
 
 136. 
 Baird v. Baird (145 N. Y. 659, 71 N. Y. 
 
 State Rep. 313), 300. 
 Baird v. Cochran (4 Serg. & Eawle, 
 
 400), 84. 
 Baird v. Daly (68 N. Y. 547), 534. 
 Baird v. N. Y. C. & H. R R Co. (16 
 
 App. Div. 490), 413. 
 Baird v. Slaight (55 Hun, 603, 38 N. Y. 
 
 State Rep. 667), 513. 
 Baker v. Baker (33 L. J., P. D. & A. 
 
 145), 708. 
 Baker v. Gausin (76 Ind. 317), 486. 
 Baker v. North East (151 Pa. St 234), 
 
 351. 
 Baker v. Robinson (63 N. C. 191), 311. 
 Baker v. Seavey (163 Mass. 533), 332. 
 Baker v. Stackpole (9 Cowen, 420), 
 
 218. 
 Baker v. State (.30 Fla. 41), 53a 
 
TABLE OF CASES. 
 
 xlv 
 
 Eefereruies are to pages. 
 
 Baker v. State (80 Wis. 416), 516. 
 Baker v. Updyke(155 111. 54), 169, 171. 
 Baldney v. Richie (1 St. 338), 248. 
 Baldridge v. Penland (68 Tex. 441), 
 
 465. 
 Baldridge, etc. Bridge Co. v. Cart- 
 wright (75 Tex. 628), 559. 
 Baldwin v. Baird (10 Wash. 414), 608. 
 Baldwin v. Doubleday (59 Vt. 7), 209. 
 Baldwin v. Martin (N. Y., 14 Abb. Pr., 
 
 N. S., 9), 346. 
 Baldwin v. Munn (2 Wend. 899), 66. 
 Baldwin v. Short at al. (125 N. Y. 553, 
 
 86 N. Y. State Rep. 138), 358. 
 Baldwin v. Walker (91 Ala. 438), 557. 
 Ball V. Independence (41 Mo. App. 
 
 469), 203. 
 Ball V. Loomis (29 N. Y. 416), 513. 
 Ball V. United States (163 U. S. 662), 
 
 701. 
 Ballard v. Carmichael (88 Tex. 355), 
 
 253. 
 Ballew V. Earl (R I., 45 Alb. L. J. 44), 
 
 601. 
 Ballou V. United States (160 U. S. 187), 
 
 712. 
 Baltimore v. Smith & S. Brick Co. 
 
 (80 Md. 458), 686. 
 Baltimore, eta R Co. v. Campbell (36 
 
 Ohio St. 647), 208. 
 Baltimore, etc. R Co. v. Thompson 
 
 (10 Md. 76), 697. 
 Baltimore & Liberty Turnpike Co. t. 
 
 Cassell (61 Md. 419, 59 Am. Rep. 
 
 175), 582. 
 Baltimore & O. R Co. v. Camp (65 
 
 Fed. Rep. 953), 6. 
 Baltimore & O. R Co. v. Walker (45 
 
 Ohio St. 577), 64. 
 Baltimore & R Turnpike Road v. 
 
 State (71 Md. 573), 610. 
 Baltimore Traction Co. v. Appel (80 
 
 Md. 603), 351. 
 Bamfield v. Masaey (1 Camp. 460), 22. 
 Bancum v. George (65 Ala. 259), 201. 
 Bangham v. Brown (132 Ind. 115), 485. 
 Bangor v. Brunswick (37 Me. 351), 486. 
 Bangor, etc. R Co. v. Smith (47 Me. 
 
 34), 206. 
 Bangs V. Brewster (111 Mass. 383), 396. 
 
 Bank v. Kennedy (17 Wall. 19), 485. 
 Bank v. Messereau (3 Barb. Ch. 596), 
 
 93. 
 Bank v. Willis (4 Met, Mass., 504), 312. 
 Bank of Albion v. Burns (46 N. Y. 
 
 170), 400. 
 Bank of British America v. Delafield 
 
 (37 N. Y. State Rep. 864, 126 N. Y. 
 
 418), 207. 
 Bank of Gallipolis v. Trimble (6 B. 
 
 Mon., Ky., 599), 125. 
 Bank of Jamaica v. Jefferson (93 
 
 Tenn. 537), 310. 
 Bank of Metropolis v. Jones (8 Pet 
 
 12), 130. 
 Bank of Northern Liberties v. Davia 
 
 (6 Watts & Serg. 285), 29. 
 Bank of Osceola v. Outhwaite (50 Mo. 
 
 App. 124), 213. 
 Bank of Salina v. Henry (2 Denio, 
 
 155), 74. 
 Bank of Toledo v. International Bank 
 
 (21 N. Y. 543), 377. 
 Bank of United States v. Dunn (6 Pet. 
 
 51), 180, 363, 268. 
 Bank of Utica v. Mersereau (5 Barb. 
 
 Ch. 538), 86. 
 Bank of Utica v. Smedes (3 Cowen, 
 
 684), 188. 
 Bank of Woodstock v. Clark (35 Vt 
 
 308), 190. 
 Banking House v. Rood (183 Mo. 256), 
 
 166. 
 Barbee v. Barbee (108 N. C. 581), 300. 
 Barbee v. Barbee (109 N. C. 399), 388. 
 Barber v. Hilderbrand (42 Neb. 400), 
 
 564. 
 Barber v. Lyons (32 Barb. 63), 633. 
 Barber v. Whitely (34 L. J., Q. B., 312), 
 
 647. 
 Barclay v. Copeland (85 CaL 493), 514. 
 Barclay v. Howell's Lessees (6 Pet. 
 
 498), 449. 
 Barclay v. Pursley (110 Pa. St 18), 271, 
 
 281. 
 Barclay v. State (15 Kan. 99), 71. 
 Bardin v. Stephenson (75 N. Y. 164), 
 
 718. 
 Barey v. Equitable L. Ins. Co. (59 N. Y. 
 
 587), 163. 
 
xlvi 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Bar Harbor First Nat Bank v. Kings- 
 ley (84 Me. Ill), 186. 
 Barker v. Binninger (14 N. Y. 370), 
 
 206. 
 Barker v. Bradley (42 N. Y. 316), 330. 
 Barker v. Bushnell (75 111. 220), 129. 
 Barker v. Cunard S. S. Co. (91 Hun, 
 
 495, 70 N. Y. State Rep. 858), 98, 
 
 100. 
 Barker v. Hoff (52 How. Pr., N. Y., 
 
 382), 45, 67. 
 Barker v. Kuhn (38 Iowa, 895), 88, 
 
 104. 
 Barker v. Nason (11 Allen, 823), 501. 
 Barker v. White (58 N. Y. 204), 383. 
 Barnard v. Barlow (50 N. J. Eq. 131), 
 
 277. 
 Barnard v. Campbell (55 N. Y. 456, 
 
 463), 119. 
 Barnard v. Gall (48 La. Ann. 959), 183. 
 Barnard v. Goslin (23 Minn. 194), 313, 
 
 313. 
 Barnard v. Kellogg (10 Wall. 382), 276, 
 
 291. 
 Barnes v. Harris (7 Gush. 576), 86. 
 Barnes v. Kamack (1 Barb. 392), 105. 
 Barnes v. Mawson (1 M. & S. 77), 417, 
 
 420. 
 Barnes v. Moore (86 Mich. 585), 403. 
 Barnes v. State (88 Ala. 204), 505. 
 Barnes v. State (111 Ala. 56), 660. 
 Barnes v. State (36 Tex. 356), 317. 
 Barnett v. Glutting (3 Ind. App. 415), 
 
 633, 672. 
 Barnett v. People (34 111. 325), 474. 
 Barney v. Forbes (118 N. Y. 580, 39 
 
 N. Y. State Rep. 980), 300. 
 Barney v. Fuller (183 N. Y. 605, 44 
 
 N. Y. State Rep. 902), 537. 
 Barney v. Patterson (6 Har. & J., Md., 
 
 182), 113. 
 Barney v. Snyder (9 Wall. 248), 242. 
 Barney v. Worthington (37 N. Y. 112), 
 
 70. 
 Barnum v. Barnum (42 Md. 251), 438. 
 Barnum v. Bridges (81 Cal. 604), 685. 
 Baron v. Crombie (14 Mass. 234), 475. 
 Baron de Bode's Case (8 Q. B. 250, 276), 
 
 526. 
 Barr v. Gratz (4 Wheat. 213, 331), 447. 
 
 Barraclough v. Johnson (8 A. &R 
 
 99), 418, 651. 
 Barrett v. Davis (104 Mo. 549), 297. 
 Barrett v. Stradl (73 Wis. 385), 635. 
 Barrida v. Silsbee (31 How., U. S., 146), 
 
 326. 
 Barron v. Chicago, St P., M. & O. R 
 
 R. Co. (89 Wis. 79), 40. 
 Barron v. Paine (83 Me. 312), 634 
 Barrows v. Downs (9 R. L 477), 526, 
 
 565. 
 Barrows v. Lane (5 Vt 161), 811. 
 Barry v. Bebbington (4 T. R. 514), 458. 
 Barry v. Colville (129 N. Y. 303, 41 
 
 N. Y. State Rep. 638), 333. 
 Barry v. Coville (53 Hun, 630, 35 
 
 N. Y. State Rep. 658), 89. 
 Barry v. Libby (166 Mass. 113), 506, 507. 
 Barry v, Morse (3 N. H. 133), 313. 
 Barry v. Second Ave. R Co. (136 N. Y. 
 
 929, 49 N. Y. State Rep. 705), 547. 
 Bartholomew v. Farwell (41 Conn. 
 
 109), 465. 
 Bartholomew v. Stevens (8 C. & P. 
 
 728), 245. 
 Bartholemy v. People (2 Hill, 348, 349), 
 
 184, 135. 
 Bartlett v. Biinn (56 Hun, 507, 81 N. Y. 
 
 State Rep. 319), 93. 
 Bartlett v. Cheesbrough (33 Neb. 339), 
 
 233. 
 Bartlett v. Lee (38 Ga. 491), 318. 
 Bartlett v. Patton (33 Va. 73), 456. 
 Bartlett v. Wright (29 111. App. 339), 
 
 603. 
 Bartley v. People (156 III. 264), 216. 
 Bartley v. Phillips (179 Pa. St 175), 
 
 561. 
 Bartley v. Phillips (165 Pa. St 335), 
 
 278. 
 Bartley v. Trorlicht (49 Mo. App. 314), 
 
 677. 
 Barton v. Gray (48 Mich. 164), 71. 
 Barton v. Kirk (157 Mass. 303), 350. 
 Barton v. Lynch et al. (52 N. Y. State 
 
 Rep. 540). 838. 
 Barton v. Scramling (31 Hun, 467), 
 
 166. 
 Bass V. Gregory (L. R. 35 Q. B. D. 481), 
 
 646. 
 
TABLE OF CASES. 
 
 xlvii 
 
 Beferences are to pages. 
 
 Bassett v. Martin (83 Tex. 110), 390. 
 Batchelder v. Sanborn (33 N. H. 325), 
 
 468. 
 Bateraan v. Bailey (5 T. R. 513), 308. 
 Bates V. Com. (14 Ky. L. Rep. 177), 
 
 455. 
 Bates V. Lingerwood (50 Hun, 430), 
 
 507. 
 
 Batna Valley S. Bank v. Silver City 
 
 Bank (Iowa, 54 N. W. Rep. 478), 
 
 633. 
 
 Batterman v. Pierce (3 Hill, 171), 335. 
 
 Baxter v. Baxter (57 N. Y. State Rep. 
 
 458, 76 Hun, 98), 117. 
 Baxter v. Baxter (13 App. Div. 65), 
 
 161. 
 Bay V. Cook (33 N. J. L. 343), 463. 
 Bayless v. Cockcraft (81 N. Y. 371), 
 
 357. 
 Bayles v. Diamond Sfc Omnibus Co. 
 
 ' (178 Pa. St. 378), 488. 
 Baylor v. Dejarnette (13 Gratt, Va., 
 
 153), 113. 
 Beach v. Raritan & D. B. E. Co. (37 
 
 N. Y. 457), 691. 
 Beach v. United States (14 Saw. 549), 
 
 692. 
 Beakis v. Da Cunha (37 N. Y. State 
 
 Rep. 14), 270. 
 Beal V. Finch (11 N. Y. 138), 132. 
 Beale v. Boston (166 Mass. 53), 683. 
 Beale v. Posey (73 Ala. 333), 588. 
 Bealey v. Shaw (6 East, 215), 650. 
 Beals V. Clark (12 Gray, 18), 634. 
 Bean v. American Loan & T. Co. (128 
 N. Y. 633, 34 N. Y. State Rep. 620), 
 
 381. 
 Bean v. Lambert (77 Fed. Rep. 863), 
 
 467. 
 Beard v. Tilghman et al. (66 Hun, 13, 
 
 49 N. Y. State Rep. 508), 61. 
 Beardsley v. Crane (58 Minn. 587), 373. 
 Beardsley v. Gaylor (65 Hun, 624, 48 
 
 N. Y. State Rep. 53), 336, 
 Beardsley v. Reeves (76 Mich. 661), 165. 
 Beardsley v. Wildman (41 Conn. 515), 
 
 34 
 Beardstown v. Smith (150 111. 109), 68. 
 Beasley v. San Jose Co. (92 Cal. 388), 
 . 209, 497. 
 
 Beatson v. Skene (29 L. J. Ex. 430), 
 
 102. 
 Beattie v. Qua (15 Barb. 137), 467. 
 Beatty v. Clark (44 Hun, 126), 160. 
 Beaudeau v. Cape Girardeau (71 Mo. 
 
 293), 233. 
 Beck V. Donnell (111 Mo. 506), 693. 
 Becker v. Boon (61 N. Y. 317), 48. 
 Becker v. Koch (104 N. Y. 394), 29. 
 Becker v. Metropolitan R Co. (131 
 N. Y. 509, 48 N. Y. State Rep. 726), 
 679. 
 Bedell v. Berky (76 Mich. 435), 858, 
 
 259. 
 Bedell v. Powell (13 Barb. 183), 706. 
 Bedell v. Richmond & D. R. Co. (94 
 
 Ga. 23), 265. 
 Bedford, etc. Ins. Co. v. Coville (8 
 
 Met. 448), 316. 
 Beech v. Jones (5 C. B. 696), 700. 
 Beedy v. Macomber (47 Me. 451), 456. 
 Beekman v. Montgomery (14 N. J. 
 
 Eq. 106), 199. 
 Beekman v. Platner (15 Barb. 550), 54. 
 Beemer v. Kerr (23 Q. B. D., U. C, 
 
 557), 34. 
 Beers v. Payment (95 Mich. 861), 704. 
 Beets V. State (1 Meigs, Tenn., 106), 
 
 455. 
 Behrens v. Behrens (47 Ohio St. 323, 
 
 48 Alb. L. J. 436), 521. 
 Behrensmeyer v. Kreitz (135 111. 591), 
 
 188. 
 Behrman v. Linde (15 N. Y. State 
 
 Rep. 129), 278. 
 Belcher v. Farren (89 Cal. 73), 284, 
 
 333. 
 Belcher v. State (125 Ind. 419J, 517. 
 Belden v. Meeker (47 N. Y. 307), 374, 
 
 888. ■ 
 Bell V. Anderson (74 Wis. 688), 624. 
 Bell V. Brewster (44 Ohio St. 690). 446. 
 Bell V. Bumstead (60 Hun, 580, 38 
 
 N. Y. State Rep. 393), 486, 428. 
 Bell V. Chambers (38 Ala. 660), 607. 
 Bell V. Earl of Dudley (1895, 1 Ch. 
 
 182), 342. 
 Bell V. Howe (65 Hun, 625, 47 N. Y. 
 State Rep. 86, 19 N. Y. Supp. 569), 
 148. 
 
xlviii 
 
 TABLE OF CASES. 
 
 Beferences are to pag^s. 
 
 Bell V. MoMarter (29 Hun, 272), 550. 
 Bell V. Spotts (40 N. Y. Super. Ct. 552), 
 
 45, 70. 
 Bellinger v. N. Y. C. R. Co. (23 N. Y. 
 
 42), 524. 
 Belmont v. Morill (69 Me. 314), 187. 
 Belthone v. Hale (45 Ala. 532), 189. 
 Belton V. Sumner (31 Fla. 139, 21 
 
 L. E. A. 146), 635. 
 Bemls V. Horner (165 111. 347), 618. 
 Bemis v. McKlnzie (13 Fla. 553), 194, 
 
 641. 
 Bemis v. Temple (26 L. R. A. 254, 162 
 
 Mass. 342), 16. 
 Ben V. State (37 Ala. 103), 455. 
 Benedict v. Rose (24 S. C. 297), 449. 
 Benedict v. Seventh Ward R. Co. (51 
 
 Hun, 11, 24 N. Y. State Rep. 169), 
 
 41. 
 Benesch v. John Hancock Mut. Life 
 
 Ins. Co. (32 N. Y. State Rep. 73, 
 
 16 Daly, 392), 375, 378. 
 Benjamin v. Metropolitan St. R. Co. 
 
 (50 Mo. App. 602), 550. 
 Benjamin v. Rogers (126 N. Y. 60, 36 
 
 N. Y. State Rep. 393), 510. 
 Benjamin v. Shea (83 Iowa, 392), 564. 
 Benner v. Atlantic Dredging Co. (134 
 
 N. Y. 156, 46 Alb. L. J. 64, 45 N. Y. 
 
 State Rep. 774), 199. 
 Benner v. Phoenix T. & T. Co. (80 
 
 Hun, 412), 40. 
 Bennerline v. O'Leary (149 N. Y. 33), 
 
 20, 82, 715. 
 Bennett v. Cook (28 S. C. 353), 521. 
 Bennett v. Dean (41 Mich. 42), 122. 
 Bennett v. Holmes (32 Ind. 108), 206. 
 Bennett v. Libhart (27 Mich. 489),633. 
 Bennett v. Salisbury (45 IT. S. App. 
 
 636, 78 Fed. Rep. 769), 561. 
 Bennett v. State (Tex., 18 S. W. Rep. 
 
 1005), 80. 
 Bennett v. State (62 Ark. 516), 515. 
 Bensley v. Brockway (27 IlL App. 410), 
 
 496. 
 Benson v. Morgan (26 111. App. 22), 360. 
 Benson v. Slinsy (50 N. Y. State Rep. 
 
 391, 137 N. Y. 570), 95. 
 Benthall v. Judkins (12 Met. 265), 619. 
 Bentley v. Brown (123 Ind. 552), 118. 
 
 Bentley v. Cook (3 Doug. 433), 144. 
 Bentley v. Phelps (37 Barb. 524), 403. 
 Benton v. Martin (53 N. Y. 570), 303. 
 Berg V. Patterson (49 Minn. 430), 573, 
 
 581. 
 Bergan v. Producers' Marble Co. (72 
 
 Tex. 52), 530. 
 Bergen Neck R Co. v. Point Breeze 
 
 F. & J. Co. (57 N. J. L. 163), 691. 
 Berkley Peerage Case (4 Camp. 401), 
 
 414, 415, 418. 
 Berlin v. Gorham (34 N. H. 266), 377. 
 Bernard v. Sampson (12 N. Y. 561), 324. 
 Beruey v. Mitchell (5 Vroom, 337), 476. 
 Bernhard v. Washington Life Ins. Co. 
 
 (40 Iowa, 443), 66. 
 Bernheimer v. RindskofE (116 N. Y. 
 
 428), 620. 
 Berridge v. Ward (10 C. B., N. S., 400), 
 
 654. 
 Berringer v. Beecher (58 Mich. 557), 54. 
 Berry v. Ardie (62 N. H. 354), 164. 
 Berry v. Banner (Pea. 156), 417. 
 Berry v. Copper (28 Ga. 543), 388. 
 Berry v. Com. (10 Bush, Ky., 15), 219. 
 Berry v. Kawalsky (95 Cal. 134, 38 
 
 Am. St Rep. 548), 390. 
 Berry v. Snyder (3 Bush, 366), 653. 
 Berry v. State (30 Tex. App. 433), 558, 
 
 561. 
 Berry v. State (63 Ark. 383), 451. 
 Berry & Goodman's Case (3 Leon. 
 
 148), 654. 
 Berryman v. Wise (4 T. R. 366), 24a 
 Bersch v. State (13 Ind. 434), 33. 
 Betts V. Badger (13 Johns. 333), 350. 
 Betts V. Chicago, R. I. & P. E. Co. (26 
 
 L. R. A. 248). 550. 
 Betty V. Nail (7 Ir. C. L. 17), 429. 
 Beville v. Jones (74 Tex. 148), 507. 
 Bevis V. Baltimore & O. R. Co. (26 Ma 
 
 App. 19), 496. 
 Bexar County v. Berrill (77 Tex. 182), 
 
 819. 
 Biddle v. Eiverton (58 N. J. L. 389), 
 
 613. 
 Bidell V. Commercial Ins. Co. (3 Bosw., 
 
 N. Y, 147), 313. 
 Biederman v. O'Conner (117 111. 493), 
 
 45. 4 
 
TABLE OF OASES. 
 
 xlix 
 
 References are to pages. 
 
 Bier v. Standard Mfg. Co. (130 Pa. St 
 
 446), 586. 
 Biering v. Gulf, C. & S. F. Ey. Co. (79 
 
 Tex. 584), 612. 
 Bigelow V. Faust (59 Me. 163), 301, 314. 
 Biggs V. McCurley (76 Md. 409), 158. 
 Bigler v. Eeher (43 Ind. 112), 88. 
 Bingham v. Stage (123 Ind. 281), 874. 
 Binns v. State (48 Ind. 311), 453, 455. 
 Birchell v. BuUough (1896, 1 Q. B..335), 
 
 711. 
 Bird V. Everand (53 N. Y. State Eep. 
 
 210), 686. 
 Birmingham Nat. Bank v. Bradley 
 
 (108 Ala 415). 580. 
 Birmingham U. E. Co. v. Hale (90 
 
 Ala. 8), 50.5. 
 Bischoff V. New York El. Co. (53 N. Y. 
 
 State Eep. 373, 138 N. Y. 357), 678. 
 Biskand v. Griffin (9 La. Ann. 150), 114. 
 Bissell V. Campbell (54 N. Y. 353), 392. 
 Bissell V. Cornell (24 Wend. 354). 35. 
 Bissell V. Morgan (11 Cush. 198), 313. 
 Bissell V. Michigan S. & N. I. R Co. 
 
 (23 N. Y. 358), 379. 
 Bitely v. Bitely (85 Mich. 227), 333. 
 Black V. Bayless (86 N. C. 527), 308. 
 Black V. Black (37 Ga. 30), 116. 
 Black V. Hicks (27 Ga. 522), 203. 
 Black V. Nease (37 Pa. St. 436), 399. 
 Black V. Sharkey (104 Cal. 379), 397. 
 Black V. Ward (27 Mich. 191), 345. 
 Black V. Woodron (39 Md. 194), 476. 
 Blackburn v. Crawford (3 Wall. 175, 
 
 187), 438, 433. 
 Blackburn v. State (33 Ohio St. 146), 
 
 63.5. 
 Blackman v. Eeilly (53 N. Y. State 
 
 Eep. 865, 138 N. Y. 318), 435. 
 Blackwell v. State (67 Ga. 76), 74. 
 Blade v. Chicago, etc. E. Co. (10 Wis. 
 
 4), 320. 
 Blaechinska v. Howard M. & H. for 
 
 L. W. (130 N. Y. 497, 42 N. Y. 
 
 State Eep. 387), 401. 
 Blaesi v. Blaesi (15 N. Y. State Eep. 
 
 672), 179. 
 Blair v. Bartlett (75 N. Y. 150), 108. 
 Blair V. Madison Co. (81 Iowa, 313), 
 
 500, 504, 543. 
 
 Blaii V. Seaver (2 Casey, 374), 134. 
 Blair v. Waite (69 N. Y. 113), 126, 370. 
 Blake v. Albion Life Assur. Soc. (45 
 
 L. J. C. P. 667), 8. 
 Blake v. Damon (113 Mass. 199), 484. 
 Blake v. Fath (44 111. 303), 340. 
 Blake v. Forst (44 111. 102), 253. 
 Blake V. Nolin (81 Mich. 132), 150. 
 Blake v. People (73 N. Y. 586), 560. 
 Blake v. filford (1 M. & Eob. 198), 103. 
 Blake v. Tucker (12 Vt 39, 44), 131. 
 Blakey v. Blakey (33 Ala. 611), 38. 
 Blanchard v. Blanchard (133 Mass. 
 
 558), 346. 
 Blanchard v. Commercial Bank (44 
 
 U. S. App. 556), 467. 
 Blanchard v. Lumbert (43 Iowa, 228), 
 
 630. 
 Blanchard v. Potter (11 Ohio St 138), 
 
 654. 
 Blank v. Livonia Tp. (79 Mich. 1), 546. 
 Blankman v. McQueen (37 N. Y. State 
 
 Eep. 601), 158. ' 
 Blanton v. State (1 Wash. 265), 553. 
 Blatz V. Eohrbeck (116 N. Y. 450), 187. 
 Blewitt V. Boorum (59 N. Y. Super. Ct 
 
 321, 39 N. Y. State Rep. 344), 333. 
 Bliss V. Cottle (32 Barb. 323), 50. 
 Bliss V. Long (Wright, Ohio, 351), 475. 
 Bhss V. Sickles (66 Hun, 633, 50 N. Y. 
 
 State Rep. 139), 356. 
 Bllven V. Lydecker (130 N. Y. 102, 40 
 
 N. Y. State Eep. 636), 601. 
 Bliven v. New England Screw Co. (23 
 
 How., U. S., 420), 364. 
 Block V. Milwaukee St R. Co. (89 Wis. 
 
 371, 37 L. R. A. 365), 17, 503, 567. 
 Blockett V. Lowes (3 M. & S. 494), 424. 
 Bloodgood V. Bruin (8 N. Y. 363), 47, 
 
 383. 
 Bloomenthal v. Ford (H. L. E., 1897, 
 
 A. C. 156, 66 L. J. Ch., N. S., 253), 
 
 12.5. 
 Bloomington v. Schrock (110 111. 319), 
 
 572. 
 Bloss V. Morrison (47 Hun, 218), 157, 
 
 158. 
 Blossom V. Griffin (3 Kern. 569), 330. 
 Blount V, Kempton (155 Mass. 378, 31 
 
 Am. St Eep. 554), 92. 
 
TABLE OF CASES. 
 
 References are to pages. 
 
 Blow V. Vaughn (105 N. C. 198), 271. 
 Bloxham v. Consumers' Electric Light 
 
 & St R Co. (28 L. R A. 507, 36 
 
 Fla. 519), 191. 
 Blue Valley Lumber Co. v. Smith (48 
 
 Nob. 293), 618. 
 Blum V. Bowman (66 Fed. Rep. 883), 
 
 342. 
 Blum V. Loggins (53 Tex. 136), 364. 
 Blundell v. Catterall (5 B. & A. 268, 
 
 304), 653. 
 Blunt V. Barrett (35 N. Y. State Rep. 
 
 64, 124 N. Y. 117), 340, 591. 
 Blythe v. Sutherland (3 McCord, S. C, 
 
 258), 450. 
 Board v. Illinois C. R Co. (79 Iowa, 
 
 518), 612. 
 Board v. Misenheimer (78 111. 22), 573. 
 Board of Commissioners v. Verbarg 
 
 (63 Ind. 107), 129. 
 Board of Control v. Rogers (48 La. 
 
 Ann. 1061), 614 
 Board of Education v. Greenbaum (39 
 
 111. 609), 70. 
 Boat V. Trimmer (83 Cal. 513), 233. 
 Bobb V. Letcher (30 Mo. App. 43), 655. 
 Bobo V. Bryson (21 Ark. 387), 88. 
 Boehl V. Chicago, M. & St. P. R Co. 
 
 (44 Minn. 191), 611. 
 Boehm v. Lies et al. (46 N. Y. State 
 
 Rep. 26), 271. 
 Boettger v. Soherpe & K A. 1 Co. (136 
 
 Mo. 531), 539. 
 Boffle V. Supreme T. of IC of M. (71 
 
 N. Y. State Rep. 1090), 100. 
 Bogardus v. New York Life Ins. Co. 
 
 (101 N. Y. 328), 54. 
 Bogardus v. Trinity Church (4 Paige, 
 
 178), 02. 
 Boggs V. Merced Min. Co. (14 Cal. 279), 
 
 136. 
 Bohrp V. Loewer's Gambrinus Brew- 
 ery Co. (16 Daly, 80), 379. 
 Bohr V. Lombard (53 N. J. L. 233), 606. 
 Boice V. Thanus & M. & M. Ins. Co. 
 
 (38 Hun, 246), 535. 
 Boileau v. Rutlin (3 Exch. 665), 133. 
 Boldt V. Murray (2 N. Y. State Rep. 
 
 333), 535. 
 Boiling V. State (54 Ark. 588), 553. 
 
 Bollinger v. Gallagher (144 Pa. St 305), 
 
 196. 
 Bollinger v. Gallagher (170 Pa. St 84), 
 
 563. 
 Bolton V. Jacques (6 Robt, N. Y, 166, 
 
 198), 111. 
 Bond V. Fitzpatrick (4 Gray, 89), 507. 
 Bond V. Markstrom (103 Mich. 11), 
 
 110. 
 Bond V. Terrell Mfg. Co. (82 Tex. 309), 
 
 132. 
 Bonds V. Smith (106 N. C. 553i 335. 
 Bonnelli v. Bowen (70 Miss. 142), 355. 
 Bonnett v. Glattfeldt (130 111. 166), 474. 
 Booker v. Bowles (3 Blackf. 90), 37. 
 Boon V. State Ins. Co. (37 Minn. 426), 
 
 66. 
 Boon V. Weathered (33 Tex. 675), 26. 
 Boone v. Alexander City (89 Ala. 602), 
 
 253. 
 Booth V. Pandola (88 Cal. 41), 150. 
 Booth V. Powers (56 N. Y. 33), 51, 109. 
 Booth V. Wilson (36 N. Y. State Rep. 
 
 173), 153. 
 Boothby v. Brown (40 Iowa, 104), 697. 
 Boozer v. Teague (37 S. C. 348), 152, 
 
 625. 
 Bopp V. Askins (31 N. Y. State Repi 
 
 555), 808. 
 Bornheiraer v. Baldwin (42 Cal. 27X 
 
 413. 
 Borst V. Spellman (4 N. Y. 384), 60. 
 Bosley v. National Mach. Co. (138 N. 
 
 Y. 550, 34 N. Y. State Rep. 377), 
 
 183. 
 Boston V. Richardson (105 Mass, 351, 
 
 371), 446, 654. 
 Boston V. Richai:dson (13 Allen, 146), 
 
 658. 
 Boston V. Scramling (31 Hun, 467), 
 
 165. 
 Boston V. State (94 Ga. 590), 660. 
 Boston & A. R Co. v. O'Reilly (158 
 
 U. S. 334), 491. 
 Boston & W. R. R. Corp. v. Dana (1 
 
 Gray, 83, 104), 243, 243. 
 Bostwick V. Baltimore, etc. R Co. (45 
 
 N. Y. 712), 53. 
 Bosville V. Attorney-General (12 P. D. 
 
 177), 19a 
 
TABLE OF CASES. 
 
 li 
 
 Heferences are to pages. 
 
 BoBwell V. Blackman (12 Ga. 591), 214. 
 Boswick V. Miller (21 Oreg. 35), 333. 
 Boteler v. Philadelphia & E. T. Co. 
 
 164 Pa. St 397), 683. 
 Bottomly v. Bottomly (80 Md. 189), 48. 
 Bouchand v. Dias (3 Denio, 338), 116. 
 Bounds V. Little (79 Tex. 138), 340. 
 Bouton V. Bogardus (35 Hun, 198), 158. 
 Bow V. AUentown (34 N. H. 351), 376. 
 Bowe V. City of Kansas (51 Mo. 454), 
 
 182. 
 Bowen v. Bowen (3 Bradf. 336), 615. 
 Bowen v. Bowen (17 R. I. 728), 174. 
 Bowen v. Chase (98 U. S. 254), 456. 
 .Bowen v. Huntington (35 W. Va. 683), 
 
 533, 539, 569. 
 Bowen v. National Bank of Newport 
 
 (11 Hun, 336), 344. 
 Bowen v. Swander (131 Ind. 64), 655. 
 Bowen v. Sweeney (63 Hun, 224, 44 
 
 N. Y. State Rep. 183), 149. 
 Bowers v. Horan (93 Mich. 430), 678. 
 Bowie V. Maddox (29 Ga. 285), 330. 
 Bowis V. Marshall (5 Pet. 470), 440. 
 Bowley v. Atkinson (13 Ch. D. 283), 
 
 458. 
 Bowman v. Earl (3 Duer, 691), 71. 
 Bowman v. Kelenan (65 N. Y. 598), 66. 
 Bowman v. Sanborn (5 Fost. 87, 112), 
 
 342. 
 Boyce v. Auditor-General (90 Mich. 
 
 326), 600. 
 ■Boyd V. American Carbon Block Co. 
 
 (182 Pa. St. 206), 481. 
 Boyd V. Cauthen (28 S. C. 73), 154, 158. 
 Boyd V. First Nat. Bank of Oska- 
 
 loosa (35 Iowa, 255), 25. 
 Boyd V. Foote (5 Bosw. 110), 638. 
 Boyd v. Ladson (4 McCord, 76), 463. 
 Boyd V. Nebraska (143 U. S. 135), 395. 
 Boyd V. Paul (125 Mo. 9), 265. 
 Boyd V. United States (142 U. S. 450), 
 
 499. 
 Boydston v. Sumpter (78 Tex. 403), 
 
 584. 
 Boyle V. Tamlin (6 B. & C, 339), 647. 
 Boyle V. Williams (48 N. Y. State Rep. 
 
 651), 564 
 Boyle Y. Wiseman (10 Tex. 647), 345, 
 
 636. 
 
 Boynton v. Pierce (79 111. 145), 313. 
 Brabston v. State (68 Miss. 308), 454. 
 Brackett v. Griswold (138 N. Y. 644), 
 
 496. 
 Bradford v. Barclay (39 Ala. 33), 34. 
 Bradford v. Malo (43 Kan. 54), 633. 
 Bradford v. People (33 Cal. 157), 711. 
 Bradhurst v. Field (135 N. Y. 564), 
 
 391. 
 Bradish v. Yocum (130 111. 386), 393. 
 Bradlaw v. De Ren (L. R. 3 C. P. 286), 
 
 619. 
 Bradley v. Mirick (91 N. Y. 295), 476. 
 Bradley v. Walker (138 N. Y. 291), 623. 
 Bradley v. Wheeler (44 N. Y. 500), 290. 
 Bradley Fertilizer Co. v. The Edwin 
 
 L. Morrison (153 U. S. 199), 609. 
 Bradshaw, Adm'r, v. Combs (103 111. 
 
 438), 698. 
 Brady v. Elliott (181 Pa. St. 359), 136. 
 Brady v. Manhattan R. Co. (137 N. Y. 
 
 46), 15. 
 Brady v. Nally (151 N. Y. 358), 373. 
 Brady v. State (39 Neb. 529), 93. 
 Brague v. Lord (67 N. Y. 495), 159. 
 Brague v. Lord (126 N. Y. 496), 161. 
 Brakefield v. State (1 Sneed, 215), 451. 
 Bramhall v. Van Campen (8 Minn. 
 
 13), 643. 
 Bramwell v. Lucas (3 C. & B. 745), 90. 
 Brand v. Johnronk (60 Mich. 310), 
 
 644. 
 Brandt v. Klein (17 Johns. 835), 341. 
 Brannon v. Adams (76 111. 381), 344. 
 Brant v. Virginia Coal, etc. Co. (93 
 
 U. S. 336), 137. 
 Brashear v. State (59 Md. 563), 73. 
 Bread albane Case (L. R 1 Sc. App. 
 
 183, 311), 484. 
 Breathwit v. Bank of Fordyce (60 
 
 Ark. 36), 306. 
 Breay v. Royal British Nurses' Ass'n 
 
 (1897, 2 Ch. 273), 480. 
 Brembridge v. Osborn (1 Stark. 374), 
 
 373. 
 Breneman v. Furniss (90 Pa. St. 186), 
 
 318. 
 Brennan v. Hall (131 N. Y. 160, 89 
 
 N. Y. State Rep. 130), 85, 93. 
 Brett V. Beals (M. & M. 416), 417, 419. 
 
lii 
 
 TABLE OF OASES. 
 
 Beferencea are to pages. 
 
 Brett V. First Union Soc. (63 Barb. 
 
 610), 50. 
 Bretz V. Mayor, etc. (6 Eob., N. Y., 
 
 336), 188. 
 Brewer v. Porch (17 N. J. L. 377), 30. 
 Brewster v. Davis (56 Tex. 478), 318. 
 Brewster v. Doane (2 Hill, 537), 443. 
 Brewster v. Hatch (133 N. Y. 341), 380. 
 Brewster v. McCall(15 Conn. 394), 393. 
 Brice v. Bauer (108 N. Y. 438, 13 N. Y. 
 
 State Eep. 765), 128. 
 Brice v. Miller (35 S. C. 537), 157, 163, ' 
 
 176. 
 Bricker v. Lightner (40 Pa. St. 199), 
 
 588. 
 Bridenbecker v. Lowell (33 Barb. 918), 
 
 381. ■ 
 Bridger v. AsheviUe & S. R. Co. (25 
 
 S. C. 34), 548. 
 Bridger v. Asheville & S. R Co. (27 
 
 S. C. 456, 13 Am. St Rep. 653), 
 
 286. 
 Bridges v. Tennessee C. & I. Co. (1-09 
 
 Ala. 287), 606. 
 Bridgewater Trustees v. Booth (7 B. 
 
 & S. 348, L. E. 3 Q. B. 4), 653. 
 Bridgmau v. Coney (63 Vt. 1), 413,477. 
 Briggs V. Com. (83 Va. 554), 31. 
 Briggs V. Georgia (15 Vt. 61), 463. 
 Briggs V. Henderson (49 Mo. 531), 468. 
 Briggs V. Mianeapolis St. E, Co. (52 
 
 Minn. 36), 538. 
 Briggs v. Partridge (64 N. Y. 357), 267. 
 Briggs V. Vanderbilt (19 Barb. 223), 
 
 53. 
 Briggs' Appeal (93 Pa. St. 485), 638. 
 Brigham v. Gott (20 N. Y. State Rep. 
 
 420), 96, 153. 
 Bright V. Barnett & K. Co. (26 L. E. A. 
 
 534, 88 Wis. 399), 6. 
 Brightman v. Hicks (108 Mass. 246), 
 
 133. 
 Brim v. Flemings (135 Mo. 597, 644), 
 
 648. 
 Brinokhord v. Western Union T. Co. 
 
 (58 Hun, 610, 35 N. Y. State Rep. 
 
 589), 610. 
 Brindle v. Mcllbaine (10 Serg. & 
 
 Rawle, 383), 24. 
 Brinsmaid v. Mayo (9 Vt 31), 64. 
 
 Briston v, McCormJcan (S App. Gas. 
 
 641), 9. 
 BristOQV. Sequeville (6 Ex. 375), 536. 
 Brock V. Knower (37 Hun, 609), 67. 
 Brock V. Milligan (10 Ohio, 81). 134. 
 Brodhead v. Wiltse(35 Iowa, 439), 578. 
 Brodt V. Kirkpatrick (7 Paine, 62), 67. 
 Brodwell v. Pittsburg & W. E. E. Co. 
 
 (137 Pa. St 404), 6ia 
 Brogy V. Com. (10 Grat 7,22), 474. 
 Bromley v. Birmingham M. R. Co. 
 
 (95 Ala. 297), 351. 
 Bronner v. Loomis (14 Hun, 341), 574, 
 
 578, 580. 
 Bixinner v. Frauenthal (37 N. Y. 168), 
 
 563,718. 
 Bronson v. Herbert (95 Mich. 478), 
 
 275. 
 Brook V. Lattimer (44 Kan. 431), 310. 
 Brookfield v. Warren (10 Gray, 171), 
 
 432. 
 Brooklyn 8t R. Co. v. Kelly (6 Ohio 
 
 C. C. 155), 15. 
 Brooks V. Acton (117 .Mass. 204), 413. 
 Brooks V. Ishell (33 Ark. 488), 203. 
 Brooks V. Mayor of New York (57 
 
 Hub, 104, 33 N. Y. State Rep. 559). 
 
 118. 
 Brooks V. McMeekin (37 S. C. 285), 
 
 346. 
 Brooks V. Eodgers (99 Ala. 433), 361. 
 Brooks V. State (96 Ga. 353), 670. 
 Brooks V. Townsend (7 Gill, S7X 535. 
 Brotherton v. People (75 N. Y. 159), 
 
 454. 
 Broughton v. MoGrew (39 Fed. Eep. 
 
 673), 341. 
 Brounker v. Atkyns (Skin. 14), 198. 
 Brown v. Baldwin & G. Co. (37 N. Y. 
 
 State Rep. 363), 285. 
 Brown v. Bale (3 Lans., N. Y, 283), 4«. 
 Brown V. Borse (3 App. Div. 357.). 714. 
 Brown v. Brown (9 Mass. 520), 76. 
 Brown v. Brown (106 Mo. 611), 300. 
 Brown v. Brown (16 Vt. 197), 388. 
 Brown v. Burnham (28 Me. 38), 634. 
 Brown v. Burgett (61 Hun, 633)i 173. 
 Brown t. Butler (99 Mass. 179), 312. 
 Brown v. Carlyle B. of E. (29 111. App. 
 
 572), 361. 
 
TABLE OF CASES. 
 
 liii 
 
 Beferences are to pagea. 
 
 Brown v. Champlain (66 N. Y. 215), 
 
 68, 69. 
 Brown V. Com. {73 Pa. St 321, 327, 
 
 338), 453. 
 Brown V. Forbes (Dak., 43 N. W. Rep. 
 
 93), 47. 
 Brown v. Gatesburg P. B. & T. Co. 
 
 (132 III 648), 435. 
 Brown v. label (11 Ala. 109), 331. 
 Brown v. James (2 App. Div. 105), 371. 
 Brown v. Jewett (18 N. H. 330), 629. 
 Brown v. Klook (34 N. Y. State Rep. 
 
 165), 153. 
 Brown v. Massachusetts Title Ins. Co. 
 
 (151 Mass. 187), 559. 
 Brown v. Mitchell (75 Tex 89), 150, 
 
 555. 
 Brown v. Moore (36 S. C. 160), 150, 164. 
 Brown v. Murdock (13 Abb. N. C, 
 
 N. Y., 360), 540. 
 Brown v. Payson (6 N. H. 443), 91. 
 Brown v. People (36 Mich. 203), 505. 
 Brown v. Piper (91 U. S. 37), 198. 
 Brown V. Roberts (75 Tex. 103), 650. 
 Brown v. Rome, W. & O. R. Co. (45 
 
 Hun, 439), 97. 
 Brown v. Rosedale St R. Ca (Tex., 
 
 15 S. W. Rep. 130), 546. 
 Brown v. Schock (77 Pa. St 471), 623. 
 Brown v. Shepard (13 Q. B., U. C, 178), 
 
 573. 
 Brown v. Stark (47 Mo. App. 370), 390. 
 Brown v. State (55 Ark. 593), 569. 
 Brown v. State (33 Tex. Cr. Rep. 119), 
 
 75. 
 Brown v. State (38 Ga. 199); 706. 
 Brown v. Wakefield (19 Gray, 450), 63. 
 Brown v. Walker (161 TJ. S. 591), 75, 82. 
 Brown v. Wiley (20 How., U. S., 443), 
 
 366. 
 Brown v. Wood (6 Rich. Eq., S. C, 
 
 156), 447. 
 Brown v. Woodman (6 Car. & P. 306, 
 
 339), 410. 
 Brown v. Wright (58 Ark. 30), 353. 
 Browne v. Murray (Ry. & M. 354), 339. 
 Browne v. Raleigh & G. R. Co. (108 
 
 N. C. 34), 611. 
 Browne & M. Ca v. Sampson (44 111. 
 
 App. 308), 277. 
 
 Brownell v. Black (31 N, B. 594), 669. 
 Brownell v. Town of Greenwich (114 
 
 N. Y. 518), 69. 
 Brownfield v. Bier (16 Mont 403), 684. 
 Browning v. Goodrich Trans. Co. (78 
 
 Wis. 391), 611. 
 Browning v. Hanford (5 Denio, 586), 
 
 405. 
 Browning v. Merritt (61 Ind. 425), 311. 
 Brubaker v. Taylor (76 Pa. St 83), 34. 
 Bruce v. Dyall (5 Mon., Ky.. 125), 220. 
 Bruce v. Kelly (39 N. Y. Supr. Ct 27), 
 
 67. 
 Bruce v. Nicolopulo (11 Ex. 129, 133), 
 
 241, 345. 
 Brumner v. Blaisdell (170 Pa. St 25), 
 
 350. 
 Brunce v. Roulings (7 East, 390), 437. 
 Brunswick v. Strilke (30 111. App. 186), 
 
 607. 
 Brush V. Scribner (11 Conn. 888), 363. 
 Brush V. Wilkins (4 Johns. Ch., N. Y., 
 
 506, 530), 526. 
 Bryan v. Forsyth (19 How., U. S., 334); 
 
 239. 
 Bryan v. Spivey (109 N. C. 57), 561 
 Bryant v. Randolph (133 N. Y. 70, 44 
 
 N. Y. State Rep. 85 •, 548. 
 Bryar v. Bryar (78 Fed. Rep. 657), 111. 
 Bubster v. State (33 Neb. 663). 32a 
 Buchanan v. Moore (10 S. & K. 375). 
 
 416. 
 Buchanan v. State (109 Ala. 7), 670. 
 Buchanan v. Whitman (CS Ind. 257). 
 
 195. 
 Buck V. Boston (165 Mass. 509), 701. 
 Bucker v. Mey«r (43 Fed; Rep. 302), 
 
 374. 
 Buckhart t. Gladish (123 Ind. 337), 
 
 159. 
 Buckley v. Buckley (14 Nev. 262), 706. 
 Bucks V. Moore (36 Mo. App. 529), 399. 
 
 603. 
 Buddee v. Spangler (13 Colo. 316), 
 
 208. 
 Budenfield v. Massachusetts Mut Ace. 
 
 Ass'n (Mass., 20 Ins. L. J. 716), 
 
 610. 
 Budlong V. Van Noatrand (2-1 Barb. 
 
 25), 208. 
 
liv 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Buehler v. Gait (35 111. App. 235), 645. 
 Buehler v. Reich (44 N. Y. State Rep. 
 
 498), 533. 
 Buell V. N. y. C. R. Co. (31 N. Y. 314), 
 
 606. 
 BufiFalo, etc. R Co. v. Corey (20 N. Y. 
 
 76), 378. 
 Buffalo Loan, T. & S. D. Co. v. Knights 
 
 Templar & M. M. A. Ass'n (38 
 
 N. Y. State Rep. 246, 126 N. Y. 
 
 450), 214. 
 Bufford V. Lonegan (5 Utah, 173), 272. 
 Bufford V. McGetohie (60 Iowa, 298), 
 
 686. 
 Bufford V. Ward (108 Ala. 307), 311. 
 Buffum V. Harris (5 R. I. 243), 556. 
 Bugbee V. Lombard (88 Wis. 271), 603. 
 Bnie V. Scott (107 N. C. 181), 155. 
 Bulger V. Ross (98 Ala, 267), 369. 
 Bull V. Com. (14 Gratt. 613), 451. 
 Bull V. Horton (65 Cal. 422), 50. 
 Bull V. Loveland (10 Pick. 9, 14), 247. 
 Bullen V. Arnold (31 Me. 583), 236. 
 Bullock V. Rouse (81 Cal. 590), 665. 
 Bundy v. Hart (46 Mo. 460), 640. 
 Bunn V. Third Nat. Bank (38 III. App. 
 
 76), 639. 
 Bunnell v. Butler (23 Conn. 65), 25. 
 Bunting v. Solz (84 Cal. 168), 563. 
 Burbridge v. Kansas City C. R. Co. 
 
 (36 Mo. App. 699), 183. 
 Burdew v. Pratt (1 T. & C, N. Y., 554), 
 
 703. 
 Burdick v. Hunt (43 Ind. 381), 103. 
 Burdick v. Missouri P. R. Co. (123 
 
 Mo. 321), 641. 
 Burfenning v. Chicago, St P., M. & 
 
 O. R. Co. (46 Minn. 20), 184. 
 Burgess v. State (93 Ga. 304), 19. 
 Burghart v. Turner (12 Pick. 534), 22e. 
 Burhans v. Kelley (17 N. Y. State Rep. 
 
 553), 508. 
 Burhans v. Western U. T. Co. (4 Ind. 
 
 App. 176), 353. 
 Burke v. American L. & T. Co. (155 
 
 U. S. 534), 367. 
 Burkhalter v. Edwards (16 Ga. 595), 
 
 29. 
 Burkhans v. Hutchison (35 Kan. 631), 
 364. 
 
 Burkhart v. Gladish (128 Ind. 337), 
 
 552. 
 Burkholder v. Fonner (34 Neb. 1), 564. 
 Burleigh v. Scott (8 B. & C. 36), 214. 
 Burleson v. Goodman (32 Tex. 239), 
 
 465. 
 Burley t. Bank (11 U. S. 216), 443. 
 Burley v. Barnhard (9 N. Y. State Rep. 
 
 587), 153. 
 Burlington, C. P.. & N. R, Co. v. Dey 
 
 (83 Iowa, 312), 189. 
 Bui'lington, etc. R. Co. v. Young Bear 
 
 (17 Neb. 668), 64. 
 Burlington Nat. Banli v. Beard (55 
 
 Kan. 773), 509. 
 Burnaby v. Baillie (43 Ch. D. 383), 14, 
 
 144. 
 Burnham v. Ayer (36 N. H. 1S2), 573. 
 Burnham v. State (38 Tex. 663), 504. 
 Burnham v. Webster (5 Mass. 366), 
 
 182. 
 Burnett v. Noble (5 Redf., N. Y., 69), 
 
 159. 
 Burns v. Bloedel (42 N. Y. State Rep. 
 
 453), 183. 
 Burns v. Fay (14 Pick. 12), 463. 
 Burns v. Rowland (40 Barb. 368), 408. 
 Burr V. Kose (168 Pa. St. 81), 248. 
 Burr V. Sickles (17 Ark. 428), 288, 289. 
 Burr et al. v. American S. S. D. Co. 
 
 (81 N. Y. 178), 299. 
 Burr's Trial (Hopkins & Earl's ed. 
 
 344), 74. 
 Burrill v. Lumber Co. (65 Mich. 571), 
 
 086. 
 Burrows y. Butler (28 Hun, 157), 71. 
 Bursill V. Tanner (16 Q. B. Div, 1), 90. 
 Burt V. Bush (82 Mich. 506), 584. 
 Burt V. State (23 Ohio St. 394), 505. 
 Burton v. Driggs (30 Wall. 125), 335. 
 Burton v. Hansford (10 W. Va. 470), 
 
 311. . 
 Burton v. Payne (2 C. & P. 530), 248, 
 Burton v. Rathbone, S. & Co. (38 111. 
 
 App. 654), 376. 
 Burton v. State (107 Ala. 109), 583. 
 Bush V. Barnett (96 Cal. 203), 351. 
 Bush V. Borrow (78 Tex. 5), 513. 
 Buskirk v. Cleveland (41 Barb. 610), 
 
 373. 
 
TABLE OF CASES. 
 
 Iv 
 
 Bef&renees are to -pages. 
 
 Buskirk v. Mullock (3 Harr., N. J., 
 
 185), 338, 
 Bustin V. Rogers (11 Cush. 346), 463. 
 Butcher v. Brownville (2 Kan. 70), 
 
 184, 188. 
 Butchers' S. & N. Ass'n v. Com. (163 
 
 Mass. 386), 7. 
 Butler V. Edgerton (15 Ind. 15), 45. 
 Butler V. Manhattan R. Co. (60 N. Y. 
 
 State Rep. 837, 30 Abb. N. C. 78), 
 
 97. 
 Butler V. Manhattan R Co. (53 N. Y. 
 
 State Rep. 498), 570. 
 Butler V. Maples (9 Wall. 766, 778), 243. 
 Butler V. Watkins (13 Wall. 456, 464), 
 
 13, 15. 
 Butler's & Baker's Case (3 Co. 30a), 
 
 594. 
 Butterworth v. Kinsey (14 U. S. 495), 
 
 56. 
 Buttrick v. Allen (8 Mass. 273), 234, 
 
 338. 
 Butts V. Smartwood (2 Cowen, 431, 
 
 673), 134. 
 Butts V. Village of Lowville (15 N. Y. 
 
 Weekly Dig. 144), 538. 
 Byers v. Harris (9 Heisk. 653), 313. 
 Byers v. Nashville, C. & St. L. R. Co. 
 
 (94 Tenn. 345), 16. 
 Byers v. Wallace (87 Tex. 503), 436, 
 
 583. 
 Bynum v. Preston (69 Tex. 287), 123. 
 Byrne v. Boadle (3 H. '& C. 723), 591. 
 Byrnes v. Pacific Express Co. (80 Tex. 
 
 130), 256. 
 
 c. 
 
 Caance v. Rigby (3 M. & W. 68), 604. 
 Cable V. Cable (146 Pa. St. 451), 353. 
 Cable T. Faley (45 Mich. 421), 639. 
 Cabot V. Givin (45 Me. 144), 480. 
 Cabot <!. Walden (46 Vt. 11), 468. 
 Cad man v. Peter (118 U. S. 73), 338. 
 Cadwalader v. Zeh (150 U. S. 171), 559. 
 Cady V. Owen (34 Vt. 598), 124. 
 Cady V. Sheldon (88 Barb. 103), 373. 
 Cady V. Shepard (13 Wis. 713), 312. 
 Cahn V. Dutton (60 Mo. 563), 311. 
 Cake's Appeal (110 Pa. St. 63), 498. 
 
 Caldwell v. Murphy (11 N. Y. 416), 503. 
 Calhoun v. McKnight (44 La. Ann. 
 
 575), 619. 
 California Nat Bank v. Canada (167 
 
 •U. S. 363), 135. 
 Caliope Min. Co. v. Herisanger (31 
 
 Colo. 483), 330. 
 Calkins v. Calkins (113 Cal. 396), 461. 
 Calkins v. Manhattan Oil Co. (65 N. Y. 
 
 557), 51. 
 Call V. Dunning (4 East, 53), 225. 
 Call V. Easton Transit Co. (180 Pa. St 
 
 618), 484. 
 Callaghan v. Myers (138 U. S. 617), 603. 
 Canister's Estate (154 N. Y. 12, 47 N. 
 
 K Rep. 368), 174. 
 Caltrane v. Lamb (109 N. C. 309), 35-3. 
 Calvert v. Flower (7 C. & P. 386), 250. 
 Camden v. McKay (3 Scam. 437), 311. 
 Camden v. Marion County (91 Ala. 
 
 340), 193. 
 Campbell v. Campbell (130 111. 466, 6 
 
 L. R A. 167), 172. 
 Campbell v. Com. (84 Pa. St 87), 146, 
 
 147. 
 Campbell v. Dearborn (109 Mass. 145), 
 
 338. 
 Campbell v. Holt (115 U. S. 630), 47. 
 Campbell v. Hubbard (38 Hun, 306), 
 
 159. 
 Campbell v. Iron Co. (83 Ala. 351), 572. 
 Campbell v. Jimenes (53 N. Y. State 
 
 Rep. 495), 275. 
 Campbell v. New York (81 Fed. Rep. 
 
 183), 677. 
 Campbell v. State (33 Ala. 44), 138, 139, 
 
 204. 
 Campbell v. West (86 Cal. 197), 187. 
 Campbell v. Woodstock Iron Co. (83 
 
 Ala. 351), 573. 
 Canajoharie Nat Bank v. Diefendorf 
 
 (33 N. Y. State Rep. 389, 123 N. 
 
 Y. 191, 42 Alb. L. J. 472), 173, 366. 
 Canal & I Co. v. Dunbar (80 Cal. 530), 
 
 247. 
 Cancemi v. People (3 Smith, 501), 23. 
 Cauda v. Robbins (55 Hun, 605, 38 N. 
 
 Y. State Rep. 96), 396. 
 Candler v. Lonsford (4 Dev. & Bat, 
 
 N. C, L. 407), 137. 
 
Ivi 
 
 TABLE OF OASES. 
 
 fBeferences are to pages. 
 
 Cannon v. Northwestern Mut. L. Ins. 
 
 Co. (29 Hun, 470), 150. 
 Cape V. McClintock (10 Ind. App. 562), 
 
 173. 
 Capers v. Washington Ins. Co. (12 
 
 Cush. 517), 608. 
 Carberry v. Morrell (68 Wis. 573), 681. 
 Card V. Card (39 N. Y. 817), 164 
 Cardinal v. Hadley (158 Mass. 352), 
 
 301. 
 Carey v. Carey (108 N. C. 267), 93. 
 Carey v. Carey (104 N. C. 171), 148, 
 
 163, 170. 
 Carey v. Williams (79 Fed. Rep. 906), 
 
 479. 
 Cargill V. Atwood (18 E. I. 27), 160. 
 Carleton v. Bickford (13 Gray, 591), 
 
 118. 
 Carleton v. Lombard & Co. (149 N. Y. 
 
 137), 110. 
 Carlledge v. West (3 Denio, 377), 346. 
 Carlson v. Winterson (147 Mass. 652), 
 
 139. 
 Carman v. Dunham (5 Halst 189), 463. 
 Carmarrhen & Cardigan Ry. Co. v. 
 
 Manchester- & Milford R Co. (L. 
 
 R 8 C. P. 685), 4C9. 
 Carmichael v. Brown (97 Ga. 486), 279. 
 CarnaTon v. Villebois (13 M. & W. 
 
 313), 419. 
 Carnes v. Piatt (N. Y., 15 Abb. Pr., 
 
 N. S., 337), 88. 
 Carnwright v. Gray (57 Hun, 518), 
 
 45, 68. 
 Carpenael v. Powis (1 Phil. 687, 692), 91. 
 Carpenter v. Dane (10 Ind. 125), 252. 
 Carpenter v. Dexter (8 Wall. 513), 195. 
 Carpenter v. Hatch (64 N. H. 573), 587. 
 Carpenter v. N. Y., N. H. & H. R. R 
 
 Co. (124 N. Y. 53, 34 N. Y. State 
 
 Rep. 857), 352. 
 Carpenter v. State (86 Iowa, 563), 336. 
 Carpenter t. Tucker (98 N. C. 316), 
 
 477. 
 Carpenter v. Ward (30 N. Y. 243), 31. 
 Carr v. Fife (156 U. S. 494), 237. 
 Carr v. Griffin (44 N. C. 510), 199. 
 Carr v. H. C. Frick Coke Co. (70 Pa, 
 
 St. 62), 7. 
 Carr v. State (48 Ark. 99), 485. 
 
 Carradine v. Hotchkiss (120 N.Y. 608, 
 
 31 N. Y. State Rep. 951), 250. 
 Carraher v. Mulligan (54 Hun, 638, 28 
 
 N. Y. State Rep. 439), 309, 310, 322. 
 Carrells v. Alexander (4 Esp. 37), 228. 
 Carrigue v. Beaty (28 Ont R«p. 175)^ 
 
 644. 
 Carrington v. Crocker (37 N. Y. 336), 
 
 347. 
 Carroll V. Davis (9 Abb. N. C, N. Y., 
 
 60), 157, 178. 
 Carroll v. Hun (84 Pa. St 107), 145. 
 Carroll v. Norwood (1 Harr. & J. 167, 
 
 174), 447. 
 Carroll v. Price (79 Fed. Rep. 137), 
 
 448. 
 Carroll v. State (23 Ala. 28), 217, 634. 
 Carson v. Central R Co. (35Cal. 325), 
 
 636. 
 Carson v. Lineberger (70 N. C. 173), 
 
 639. 
 Carstairs v. Rolleston (5 Taunt 554), 
 
 31.5. ' 
 
 Carter v. Beals (44 N. H. 408), 485. 
 Carter v. Bowe (41 Hun, 516), 47. 
 Carter v. Com. (Ky., 13 8. W. Rep. 
 
 921), 271. 
 Carter v. Morris (26 N. Y. State Rep. 
 
 508, 116N.Y. 310), 615. 
 Carter v. Murcot (4 Burr. 2162), 653. 
 Carter v. New York El. R Co. (134 
 
 N. Y. 168, 38 N. Y. State Rep. 
 
 581), 685. 
 Carter v. Pitcher (87 Hun, 580), 318. 
 Carter v. Thurston (58 N. H. 104), 686. 
 Carter v. Tinicura Fishing Co. (77 Pa. 
 
 810). 432. 
 Carter Mach. Co. v. Hanes (42 U. R 
 
 314), 122. 
 Cartier v. Troy L. Co. (138 111. 533), 
 
 633. 
 Carthous v. State (78 Wis. 560), 568. 
 Carver v. Jackson (4 Pet 1, 183), 121, 
 
 187. 
 Carver v. United States (160 17. S. 
 
 653), 452. 
 Gary V. Western U. T. Co. (21 Abb. 
 
 N. C, N. Y., 233, 47 Hun, 610), 46. 
 Case V. Gordon (33 Mo. App. 579), US; 
 Case V. Kelly (183 U. S. 21), 185. 
 
TABLE OV CASES. 
 
 Ivii 
 
 References are to pages. 
 
 Case V. Mobile (80 Ala. 538), 185. 
 Case V. Phoenix Bridge Co. (134 N. Y. 
 
 78), 303. 
 Case Mfg. Co. v. Saxman (138 U. S. 
 
 431), 399. 
 Case of St Katherine's Hospital (1 
 
 Vent 149, 151X 198. 
 Casehill v. Wright (6 E. & B. 891), 
 
 607. 
 Casey v. State (49 Neb. 403), 658. 
 Cassidy v. Fontham (88 N. Y. State 
 
 Rep. 177), 270, 579. 
 Castle V. Bulland (23 How., U. S., 172, 
 
 186), 13, 15. 
 Castner v. Sliker (4 Vroom, 95), 486. 
 Casto V. Frye (88 W. Va. 449), 507. 
 Castognino v. Balletta (83 Cal. 250), 56. 
 Castrigue v. Imrie (L. R 4 App. Caa 
 
 414, 429, 434), 109, 117. 
 Catt V. Howard (3 St 3), 223. 
 CaujoUe v. Ferrie (26 Barb. 177), 307, 
 
 428. 
 CaujoUe v. Ferrie (33 N. Y. 105), 398. 
 Cavendish v. Troy (41 Vt 99), 587. 
 Chadbourne v. Williams (45 Minn. 
 
 894), 601. 
 Chaddock v. Vanness (35 N. J. L. 
 
 571), 311. 
 Chaddock v. Vanness (85 N. J. L. 
 
 518), 312. 
 Chadwick v. Fonner et al. (69 N. Y. 
 
 404), 165, 506. 
 Chadwick v. Gulf S. L. & J. Co. (49 
 
 La. Ann. 757), 111. , 
 
 Chaflfee v. Goddard (42 Hun, 147), 158. 
 Chaffee v. McKenzie (48 La. Ann. 
 
 1063), 129. 
 Chaflfee v. Taylor (3 Allen, 508), 573. 
 Chaffee v. United States (18 Wall. 516), 
 
 443. 
 
 Chagery v. Jenkins (5 N. Y. 376), 404. 
 Chamberlain v. Bradley (101 Mass. 
 
 188), 880. 
 Chamberlain v. Dnnlop (126 N. Y. 45, 
 
 28 N. Y. State Rep. 375), 546, 684. 
 Chamberlain v. Huguenot Mfg. Co. 
 
 (118 Mass. 582), 377. 
 Chamberlain v. People (23 N. Y. 85), 
 
 105. 
 Chamberlain v. Sams (27 Mo. 458), 30. 
 
 Chamberlain v. Torrence (14 Grant's 
 
 Ch. 181), 447. 
 Chamberlain v. Wilson (13 Vt 491), 
 
 74, 77. 
 Chambers v. Nernesconi (1 C, M. & E. 
 
 347), 439. 
 Champlin v. Butler (18 Johns. 169), 
 
 321. 
 Champney v. Coops (33 N. Y. 543), 306. 
 Chancellor v. Donnell (Ala., 10 So. 
 
 Rep. 910), 626. 
 Chandler v. Beall (183 Ind. 596), 705. 
 Chandler v. Le Barron (45 Me. 584), 
 
 574, 578. 
 Chaney v. Home F. & F. M. Soc. (28 
 
 111. App. 31), 521. 
 Chapin v. Baker (124 Ind. 385), 308. 
 Chapin v. Chicago, M. & St P. R. Co. 
 
 (79 Iowa, 583), 611. 
 Chapin v. Dobson (78 N. Y. 74), 304, 
 
 836, 330, 884. 
 Chapin v. Lapham (30 Pick. 467), 470. 
 Chapin V. Marlborough (9 Gray, 344), 
 
 501. 
 Chapin v. Pratt (66 Hun, 628, 49 N. Y. 
 
 State Rep. 42), 863. 
 Chapman v. Chapman (2 Conn, 347), 
 
 437, 488. 
 Chapman v. Rose (56 N. Y. 137, 140), 
 
 130. 
 Chapman v. Taylor (136 N. Y. 668, 49 
 
 N. Y. State Rep. 848), 633. 
 Chapman v. Union P. R Co. (13 Utah, 
 
 68), 495. 
 Chapman v. Wilier (6 Hill, 475), 189. 
 Charles v. Denio (42 Wis. 56), 313. 
 Charles v. Huber (38 Pa. St 448), 390. 
 Charleston v. Ashley Phosphate Co. 
 
 (34 S. C. 541), 182. 
 Charleston, etc. R Co. v. Blake (12 
 
 Rich., S. C, L. 684), 808. 
 Charleton v. La wry (1 Mart, N. C, 36), 
 
 436. 
 Charter v. Otis (41 Barb. 525), 893. 
 Chase v. Everts (65 Hun, 631, 47 N. Y. 
 
 State Rep. 425), 307. 
 Chase v. Sycamore, etc. R Co. (38 111. 
 
 315), 480. 
 Chatauga Ore & L Co. v. Blake (144 
 
 U. S. 476), 464. 
 
Iviii 
 
 TABLE OF OASES. 
 
 References are to pages. 
 
 Chatfield v. Simmonson (93 N. Y. 309), 
 
 45, 68. 
 Chatsworth v. Rowe (166 111. 114), 538. 
 Chattanooga, etc. R. Co. v. Huggins 
 
 (89 Ga. 494), 587. 
 Chattanooga R etc. Co, v. Jackson 
 
 (86 Ga. 676), 563. 
 ChattanoogaJt & C. R Co. v. Liddell 
 
 (85 Ga. 483), 498. 
 Chattanooga R & C. R Co. v. Owen 
 
 (90 Ga. 265), 851. 
 Chattanooga R & C. R Co. v. White- 
 head (90 Ga. 47), 351. 
 Cheapside Bank v. Swain (29 Md. 483), 
 
 289. 
 Cheatam v. State (67 Miss. 835), 37. 
 Cheeney v. Arnold (18 Barb. 434), 697, 
 
 698, 703. 
 Cheever v. Brown (30 Ga. 904), 465. 
 Cheever v. North (106 Mich. 390), 685. 
 ChoUis V. Cleafman (125 N. Y. 314» 35 
 
 N. Y. State Rep. 20), 694 
 Chelmsford Co. v. Demarest (7 Gray, 
 
 1), 210. 
 Chemical Electric Light & P. Co. v. 
 
 Howard (150 Mass. 495), 309. 
 Chenery v. Goodrich (106 Mass. 566), 
 
 289. 
 Cheney v. Arnold (15-N. Y. 851), 397. 
 Cheney v. Dunlop (37 Neb. 401), 535, 
 
 C33. 
 Chesbro v. Powers (78 Mich. 473), 517. 
 Chester v. Bank of Kingston (16 N. Y. 
 
 336), 328. 
 Chester v. Dickerson (54 N. Y. 1), 407, 
 
 410. 
 Chester & P. R Co. v. Chester County 
 
 (182 Pa. St 40), 478. 
 qhicago V. Sawyer (166 111. 390), 132. 
 Chicago V. Seben (105 III. 371), 551. 
 Chicago & A. R Co. v. Dillon (24 111. 
 
 App. 208, 123 111. 570), 529. 
 Chicago & A. R Co. v. Keegan (153 
 
 111. 413), 186. 
 Chicago & A. R Co. v. Legg (33 111. 
 
 App. 318), 583. 
 Chicago & A. R Co. v. O'Brien (85 
 
 111. App. 155), 549. 
 Chicago & N. W. R Co. v. Netolicky 
 
 (67 Fed. Rep. 665), 17. 
 
 Chicago & St. L. R Co. v. Ashling (34 
 
 IlL App. 99), 497, 498. 
 Chicago, B. & Q. R Co. v. Johnson (36 
 
 111. App. 564), 477. 
 Chicago, B. & Q. R Co. v. Scoffer (124 
 
 111. 113), 681. 
 Chicago City R Co. v. Engel (35 III. 
 
 App. 490), 609. 
 Chicago City R Co. v. Jennings (157 
 
 111. 374), 49. 
 Chicago City R Co. v. Van VIeek (143 
 
 111. 480), 571. 
 Chicago, etc. R. Co. v. Artery (137 
 
 U. S. 507), 711. 
 Chicago, etc. R Co. v. Coal Co. (36 111. 
 
 60, 64), 706. 
 Chicago, etc. E. I. E. Co. v. Chancellor 
 
 (165111. 488), 493. 
 Chicago, K &W. R Co. v. Cospar(42 
 
 Kan. 561), 685. 
 Chicago, K. & W. R Co. v. Muller (45 
 
 Kan. 85), 684. 
 Chicago, M. & St. P. R Co. v. McAr- 
 
 thur (58 Fed. Rep. 464), 425. 
 Chicago, M & St P. R Co. v. O'SuUi- 
 
 van (144 IlL 48), 287. 
 Chicago, R I. & P. R Co. v. McBride 
 
 (54 Kan. 173), 49. 
 Chicago, St L. & P. R Co. v. Spilker 
 
 (134 Ind. 880), 501, 571. 
 Chicago, St P., M. & O. R Co. v. 
 
 Gilbert (53 Fed. Eep. 79), 245, 
 
 711. 
 Chickering v. Brooks (61 Vt 554), 129, 
 
 553. 
 Child Y. Detroit Mfg. Co. (73 Mich. 
 
 633), 58. 
 Child V. Powder Works (45 N. H. 547), 
 
 116. 
 Child V. Star (4 Hill, N. Y., 369), 654. 
 Childer v. State (53 Ga. 106), 145. 
 Chirac v. Reinecker (11 Wheat 280), 
 
 85. 
 Choate v. Huff (83 Tex 378), 176. 
 Chopin V. Badger Paper Co. (83 Wis. 
 
 193), 351. 
 Christensen v. Union Trunk Line (6 
 
 Wasli, 75), 852. 
 Christian v. Columbus & P. R. Co. (90 
 
 Ga. 134), 691, 693. 
 
TABLE OF OASES. 
 
 lix 
 
 22e/erC7ices are to pages^ 
 
 Christopher & T. St B. Co. v. Twenty- 
 third St. R Co. (149 N. Y. 51), 328. 
 ChrysJe v. Renois (43 N. Y. 213), 345. 
 Chu Pawn v. Irwin (82 Hun, 607), 51. 
 Church V. Howard (79 N. Y. 415), 151, 
 
 155. 
 Church V. Hubbartt (3 Cranoh, 187), 
 
 181, 338, 339. 
 Churchill v. Fulliam (8 Iowa, 45), 204. 
 Churchman v. Kansas City (49 Mo. 
 
 App. 366), 351. 
 Cicotte V. 8t. Anne's Church (60 Mich. 
 
 533), 285, 379. 
 Cincinnati, W. & B. R. Co. v. HoflE- 
 
 hines (46 Ohio St. 643), 186. 
 City Council of Montgomery v. M. & 
 
 W. Plankroad Co. (31 Ala. 79), 
 
 184. 
 City of Elljbart v. Witman (133 Ind. 
 
 538), 551. 
 City of London v. Clarke (Carth. 181), 
 
 10. 
 City of Ripon v. Brittle (3 Wis. 614, 
 
 619), 536, 572. 
 City R. Co. V. Citizens' St. R. Co. (166 
 
 U. S. 567), 133. 
 Citizens' St. R. Co, y. Willoeby (134 
 
 Ind. 568), 258. 
 Claflfy V. Fanon (44 N. Y. State Rep. 
 
 789), 618. 
 Claflin V. Pfeflfer (76 Tex. 469), 601. 
 Clair V. Chicago, B. & Q. E. Co. (Iowa, 
 
 45 N. W. Rep. 470), 189. 
 Cland V. Clinkinbeard (48 Am. Dec. 
 
 397), 638. 
 Clancy v. Losey (65 Hun, 625, 48 N. Y. 
 
 State Rep. 191), 537. 
 Clapp V. Fullerton (34 N. Y. 190), 539. 
 Clapp V. Rogers (12 N. Y. 383), 411. 
 Clark V. Baird (9 N. Y. 183),' 687. 
 Clark V. Bradlaugh (C. A., 8 Q. B. D. 
 
 63), 594, 
 Clark V. Clark (53 N. J. Eq. 650), 6. 
 Clark V. Clark (76 Wis. 306), 603. 
 Clark V. Clough (65 N. H. 43), 150, 163. 
 Clark V. Com. (29 Pa. St 139), 183. 
 Clark V. Coolidge (8 Kan. 1891, 127. 
 Clark V. Costello (59 N. J. L. 334), 603. 
 Clark V. Cummings (5 Barb. 339), 680. 
 Clark V. Dales (20 Barb. 43), 57. 
 
 Clark V. Dillon (97 N. Y. 370), 63. 
 Clark V. Douglass (5 App. Div. 547), 
 
 575. 
 Clark V. Draper (19 N. H. 418), 646. 
 Clark V. Fey (121 N. Y. 470, 81 N. Y. 
 
 State Rep. 424), 373. 
 Clark V. Fletcher (1 Allen, 53), 250. 
 Clark V. Gilbert (39 Conn. 94), 400. 
 Clark V. Jones (87 Ala. 494), 376. 
 Clark V. Magruder (3 H. & J. 77), 443. 
 Clark V. Marshall (62 N. H. 498), 557. 
 Clark V. Montgomery (83 Barb. 464), 
 
 211. 
 Clark V. Owen (18 N. Y. 434), 446. 
 Clark V. Reinsdyke (9 Cranch, 153), 70. 
 Clark V. Ryan (93 Ala. 405), 564. 
 Clark V. State (28 Tex. App. 189), 583. 
 Clark V. Tryon (53 N. Y. State Rep. 
 
 123), 43. 
 Clark V. Turner (50 Neb. 390), 531. 
 Clark V. Vorce (15 Wend. 193), 477. 
 Clarke v. Bank of Mississippi (5 Eng. 
 
 516), 238. 
 Clarke v. Cocke (4 East, 57), 315. 
 Clarke v. Canfield (15 N. J. Ch. 119), 
 
 628. 
 Clark© V. Courtney (5 Pet 319, 344), 
 
 446. 
 Clarke v. KelsQj- (41 Neb. 766), 40. 
 Clarke v. Kirschuer(113 Mo. 290), 369. 
 Clawson v. Gustin (3 South. 821), 312. 
 Clay V. Field (138 U. S. 464), 391. 
 Clayton v. Hardy (27 Mo. 536), 409. 
 Clayton v. Nugent (13 Mees. & W. 20O, 
 
 207), 390. 
 Clearwater v. Brill (63 N. Y. 627), 
 
 404 
 Cleave v. Jones (7 Ex. 421), 90. 
 Clemens v. Moore (6 Wall. 299), 63. 
 Clement v. Burns (43 N. H. 609), 654. 
 Clements v. Haye (76 Ala. 280), 625. 
 Clements v. Hunt (1 Jones, N. C, L 
 
 400), 433. 
 Clements v. Kyles (13 Gratt 468, 477), 
 
 416. 
 Clements v. Landman (26 Ga. 401), 619. 
 Clements v. Moore (6 Wall. 299, 315), 
 
 340. 
 Clemson A. C. v. Pickens (42 S. C. 
 
 511), 441. 
 
Ix 
 
 TABLE OF OASES. 
 
 Beferences are to pages. 
 
 Clenigan v. MoFarland (34 N. Y. State 
 
 Rep. 634), 29S, 324. 
 Clerihen v. West State Bank (Minn., 
 
 53 N. W. Rep. 967), 336. 
 Cleveland v. Huey (18 Ala. 343), 475, 
 
 476. 
 Cleveland, C, C. & I. R. Co^ v. Classer 
 
 (126 Ind. 348, 43 Alb. L. J. 309), 
 
 10, 497. 
 Cleveland, C, 0. & St. L. R. Co. v. 
 
 Prewitt (134 Ind. 657), 501. 
 Cleveland R. R Ca v. Mara (36 Ohio 
 
 St. 185), 486. 
 Cleveland Stove Co. v. Hovey (26 Neb. 
 
 624), 209. 
 Clews V. Kehr (90 N. Y. 633), 202. 
 Ciift V. Moses (112 N. Y. 436), 163. 
 Clink V. Gann (90 Mich. 135), 31. 
 Cliquot's Champagne (3 WalL 114), 
 
 085. 
 Close V. Olney (1 Denio, 319), 77. 
 Clothier v. Chapman (14 East, 331), 
 
 424. 
 Cloud V. Whiting (38 Ala. 57), 599. 
 Clough V. Kyne (40 III. App. 234), 638. 
 Clough V. Murray (19 Abb. Pr., N. Y., 
 
 97), 45. 
 Clough V. State (7 Neb. 320), 2ia 
 Clubb V. Edwards (3 Moo. & Rob. 300), 
 
 231. 
 ClufE V. Mutual Benefit L. Ins. Co. (13 
 
 Allen, 308), 643. 
 Coan V. Flagg (123 U. S. 117), 334. 
 Coapstiok v. Bosworth (120 Ind. 6), 
 
 309. 
 Coats v. Boston & M. R. Co. a53 Mass. 
 
 297), 386. 
 Cobb V. Newcomb (7 Clarke, Iowa, 43), 
 
 363. 
 Cobb V. West (4 Duer, 38), 54. 
 Cochrane v. Scott (3 Wend. 229), 66. 
 Cochrane v. State (38 Tex. App. 433), 
 
 562. 
 Codman v. Caldwell (31 Me. 570), 463. 
 Cody V. Conly (27 Gratt. 313), 572. 
 Coe V. Strong (4 U. C, Q. B., 510), 628. 
 Coflfee V. Lyon (32 N. Y. State Rep. 66, 
 
 16 Daly, 307), 255. 
 CofEee v. State (35 Fla. 501), 319. 
 Coffin V. Collins (17 Me. 440), 448. 
 
 Coffin V. Jones (13 Pick., Mass., 44), 
 
 105. 
 Coffing V. Carnahan (137 Ind. 437), 
 
 247. 
 Coffing V. Dodge (167 Mass. 331), 687. 
 Coff man v. Campbell (87 III. 98), 314. 
 Cogeshall v. Pittsburg Roller Mills 
 
 Co. (40 Kan. 480), 564. 
 Coggill V. American Ex. Bank (1 N. 
 
 Y. 113), 134. 
 Cohen v. Cohen (2 Maokie, 227), 499. 
 Cohoes V. Delaware & H. C. Co. (134 
 
 N. Y. 797, 47 N. Y. State Rep. 612, 
 
 46 Alb. L. J. 406), 623. 
 
 Coit V. Commercial Ins. Co. (7 Johns. 
 
 385), 293. 
 Coit V. Haven (30 Conn. 190, 197), 117. 
 Coit V. Milliken (1 Denio, 376), 181. 
 Coke V. Long Island Co. (65 Hun, 619, 
 
 47 N. Y. State Rep. 200), 610. 
 Coker v. Hayes (16 Fla. 368), 393. 
 Cole v. Cole (153 111. 585), 621. 
 Cole V. Com. (5 Gratt 696), 499. 
 Cole V. Dyall (8 Tex. 347), 463. 
 
 Cole V. Fall Brook Coal Co. (87 Hun, 
 
 584), 567. 
 Cole V. Gardner (67 Miss. 670), 148, 171. 
 Cole V. Lake Shore & M. S. R Co. (95 
 
 Mich. 77), 22, 57. 
 Cole V. Satsop R Co. (9 Wash. 487), 
 
 823. 
 Cole V. Seagraves (88 Cal. 102), 193. 
 Cole V. Smith (29 La. Ann. 551), 313. 
 Coleman, Matter of (111 N. Y. 330), 85. 
 Coleman v. Com. (35 Gratt,, Va., 865), 
 
 139. 
 Coleman v. Frazer(4 Rich., S. C, 146), 
 
 456. 
 Coleman v. Mechanics' Iron F, Co. 
 
 (168 Mass. 254), 350. 
 Colglazier v. Colglazier (134 Ind. 196), 
 
 10. 
 Colder v. Their Creditors (47 La. Ann. 
 
 346), 411. 
 Coll V. Eastern Trans. Co. (180 Pa. St 
 
 618), 495. 
 Collier v. State (30 Ark. 36), 455. 
 Collins V. Boynton (1 Q. B. 118), 225. 
 Collins V. Cave (4 H. & N. 235), 385. 
 Collins V. Gilbert (94 U. S. 757), 53. 
 
TABLE OF CASES. 
 
 Ixi 
 
 References are to pages. 
 
 ColUns V. Grantham (12 Md. 440). 435. 
 Collins V. Manning (1 N. Y. State Rep. 
 
 204), 565. 
 Collins V. State (46 Neb. 87) 713, 714. 
 Collins V. Stevens (5 Gray, 438), 33. 
 Collins V. Valleau (79 Iowa, 631), 614. 
 Collins V. Waters (54 III. 485), 501. 
 CoUogan v. Burns (57 Me. 449), 486. 
 Colorado Midland R Co. v. O'Brien 
 
 (16 Colo. 319), 549. 
 Colquitt V. State (34 Tex, 550), 485. 
 Colsell V. Bud (1 Camp. 27), 372. 
 Colt V. Cone (107 Mass. 385), 382. 
 Colt V. Milliken (1 Denio, 376), 239. 
 Colt V. People (1 Park. Cr. Rep. 611), 
 
 26. 
 Colton V. Jones (7 Robt 164), 49. 
 Columbia Ins. Co. v. Masonheimer (76 
 
 Pa. St 138), 209. 
 Columbia Law Bank v. Winn (133 
 
 Mo. 80), 400. 
 Columbus & R. R. Co. v. Christian (97 
 
 Ga. 56), 23. 
 Colwell V. Colwell (14 App. Div. 80), 
 
 105, 703. 
 Combs V. Winchester (39 N. H. 13), 34. 
 Comins v. Hetfield (80 N. Y. 261), 159. 
 Commercial Bank of Keokuk v. 
 
 Pfeiflfer (108 N. Y. 243), 66. 
 Commez-oial F. Ins. Co. v. Morris (105 
 
 Ala. 498), 310. 
 Commissioners v. Clark (94 U. S. 285), 
 
 364. 
 Commissioners v. Leggett (115 Ind. 
 
 544), 501. 
 Commissionei-s of Excise v. Backus 
 
 (29 How. Pr., N. Y. 39), 146. 
 Commissioners of Pilots v. Vanderbilt 
 
 (32 N. Y. 265), 345. 
 Com. V. Bell (166 Pa. St. 405), 20, 671. 
 Com. V. Bell (145 Pa. St 374). 74. 
 Com. V. Bishop (165 Mass. 148), 714. 
 Com. V. Bonner (97 Mass. 587), 707. 
 Com. V. Boynton (2 Allen, 160), 598. 
 Com. V. Brayman (136 Mass. 438), 588. 
 Com. V. Brewer (164 Mass. 577), 451. 
 Com. V. Brothers (158 Mass. 200), 8. 
 Com. V. Brown (150 Mass. 330), 699. 
 Com. V. Buccieri (153 Pa. St 535), 554. 
 Com. T. Casey (11 Cnsh, 417), 451, 455. 
 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. T. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 
 491. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Cora. V. 
 
 337. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 
 602. 
 Com. V. 
 Com. V. 
 
 671. 
 Com. V. 
 
 654. 
 
 Casey (12 Cush. 246), 453. 
 Chaddock (1 Mass. 145), 456. 
 Cohen (127 Mass. 282), 146. 
 Connors (156 Pa. St 147), 361. 
 Cooper (5 Allen. 495), 451, 4.";3, 
 Crawley (167 Mass. 434), 696. 
 Curtis (97 Mass. 574), 707. 
 Dearborn (109 Mass. 368), 346. 
 Doughty (139 Pa. St 383), 477. 
 Drake (15 Mass. 161), 216. 
 Drumm (58 Pa. St 9X 634. 
 Dunsmore (12 Allen, 535), 455. 
 Emery (2 Gray, 80), 347. 
 Emmons (98 Mass. 6), 598. 
 Fairbanks (3 Allen. 511), 556. 
 Ferrigan (44 Pa. St 386), 15. 
 Galivan (9 Allen, 2!71), 697. 
 Gould (58 Mass. 499), 75, 584. 
 Graham (99 Mass. 421), 140. 
 Green (17 Mass. 515), 28. 
 Griffin (110 Mass. 181), 107. 
 Hackett (3 Allen, 136), 485, 
 
 Haney (137 Mass. 455), 451. 
 Hanlon (3 Brewst 461), 317. 
 Hardy (3 Mass. 317), 33. 
 Hawkins (3 Gray, 463), 34, 667. 
 Haydon (163 Mass. 453), 144, 
 
 Hill (11 Cush, 137), 103. 
 Holmes <127 Mass. 424), 145. 
 Holmes (157 Mass. 233), 669. 
 Holsteine (132 Pa. St 357), 361. 
 Hourigan (89 Ky. 305), 35. 
 Howe (9 Gray, 110), 317. 
 Howe (3 Allen, 153), 216. 
 Hurley (158 Mass. 159), 9. 
 Ingraham (7 Gray, 46), 27. 
 Jones (155 Mass. 170), 31. 
 Jenkins (10 Gray, 485), 25. 
 Kenney (130 Mass. 387), 64?. 
 King (150 Mass. 33), 194. 
 Knapp (9 Pick. 496), 216. 
 McCabe (163 Mass. 98), 491, 
 
 McCarthy (153 Mass. 577), 477. 
 McMahon (145 Pa. St 413), 
 
 Manchester (153 Mass. 230), 
 
Ixii 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Com. V. Mavsynski (149 Mass. 68), 573. 
 Com. V. Matthews (11 Ky. L. Rep. 
 
 505), 451, 454. 
 Com. V. Matthews (89 Ky. 287), 453. 
 Com. V. Mead (10 Allen, 398), 637. 
 Com. V. Merriam (14 Pick. 418), 37. 
 Com. V. Meserve (154 Mass. 284), 517. 
 Com. V. Mica (171 Pa. St. 373), 451. 
 Com. V. Moore (157 Mass. 324), 9. 
 Com. V. Moore (3 Dana, 402), 24. 
 Com. V. Morgan (159 Mass. 375), 261. 
 Com. V. Morrill (99 Mass. 543), 705. 
 Cora. V. Mosler (4 Pa. St. 264), 377. 
 Com. V. Mullen (150 Mass. 394), 504. 
 Com. V. Munsey (113 Mass. 389), 402. 
 Com. V. Nichols (114 Mass. 285), 88. 
 Com. V. Niokerson (5 Allen, 518), 714 
 Com. V. O'Brien (134 Mass. 198), 588. 
 Com. V. Peckham (2 Gray, 513), 344. 
 Com. V. Pendergast (138 Pa. St 633), 
 
 333. 
 Com. V. Phillipps (162 Mass. 504), 358. 
 Com. V. Pike (49 N. H. 309), 593. 
 Com. V. Piper (120 Mass. 185), 317. 
 Com. V. Pomeroy (117 Mass. 143, 149), 
 
 588. 
 Com. V. Price (10 Gray, 472), 76, 145. 
 Com. T. Raymond (97 Mass. 567), 598. 
 Com. V. Reynolds (10 Allen, 64), 139. 
 Com. V. Rich (14 Gray, 885), 588. 
 Com. T. Richards (18 Pick. 434), 474, 
 
 576. 
 ■Com. V. Roberts (108 Mass. 296), 451, 
 
 486. 
 Com. V. Robinson (143 Mass. 571), 15. 
 Com. V. Robinson (Thatcher's Crim. 
 
 Cas. 236), 23. 
 Com. V. Robinson (165 Mass. 436), 135. 
 Cora. V. Robinson (1 Gray, 555), 143. 
 Com. V. Sackett (33 Pick. 394), 24. 
 Com. V. Sapp (90 Ky. 580), 143. 
 Com. V. Show (4 Cush. 593), 31. 
 Com. V. Smith (3 Gray, 516), 135. 
 Com. V. Smith (153 Mass. 97), 514, 517. 
 Com. V. Smith (163 Mass. 411), 76, 516. 
 Com. V. Spink (137 Pa. St. 235), 143. 
 Com. V. Stoehr (109 Mass. 365), 345. 
 Cora. V. Straesser (153 Pa St. 451), 
 
 669. 
 Com. V. Sturtevant (117 Mass. 132), 
 
 535, 540, 587. 
 
 Com. V. Tibbetts (157 Mass. 517), 258. 
 Com. V. Timothy (8 Gray, 480), 345. 
 Com. V. Trefethen (157 Mass. 180), 13, 
 
 494. 
 Com. V. Vass (8 Leigh, Va., 786), 454. 
 Com. V. Walker (163 Mass. 336), 344 
 Com. V. Welsh (4 Gray, 535), 380. 
 Com. V. Wentworth (118 Mass. 47.0), 
 
 598. 
 Com. V. Williard (22 Pick. 476), 147. 
 Com. V. York (9 Met 93), 667. 
 Commonro v. Bakeman (105 Mass. 56), 
 
 378. 
 Compton V. Jessup (167 U. S. 1), 110. 
 Oomstock V. Cameron (41 Neb. 814). 
 
 237. 
 Comstock V. Hier (73 N. Y. 369), 156. 
 Comstock V. Savage (37 Conn. 184), 
 
 67. 
 Conable v. Keeney (61 Hun, 634, 40 
 
 N. Y. State Rep. 939), 644. 
 Conally v. Pardon (1 Paige, 391), 892. 
 Conant v. Johnston (165 Mass. 450), 
 
 366. 
 Conant v. Roseborough (139 111. 383), 
 
 333. 
 Concord R. Co. v. Greeley (23 N. H. 
 
 337), 534, 688. 
 Condit V. Condrey fl33 N. Y. 463), 396. 
 Cone V. Dunham (59 Conn. 145), 396. 
 Cone V. Purcell (56 N. Y. 649), 375. 
 Conestog;a Cigar Co. v. Finke (144 Pa. 
 
 St 159), 585. 
 Congdon v. Winsom (17 R. 1. 336), 480. 
 Congdon & A. Co. v. Sheehan (11 App. 
 
 Div. 456). 468. 
 Conger v. Galena, etc R. Co. (17 Wis. 
 
 477), 706. 
 Conklin v. Conklin (80 Hun, 378), 158. 
 Conklin v. Gandell (1 Abb. Ct App. 
 
 Dec. 423), 53. 
 Conklin v. Snyder (104 N. Y. 641), 
 
 151. 
 Conlan v. DouU (183 U. S. 316), 521. 
 Conlan v. Grace (36 Minn. 276), 485. 
 Conlin v. Massacar (80 Mich. 139), 498. 
 Connecticut L. Ins. Co. v. Schwenck 
 
 (94 U. S. 593), 480. 
 Connecticut River Sav. Bank v. Albee 
 
 (64 Vt 571), 461. 
 Connell v. Wiles (153 Mass. 172), 240. 
 
TABLE OF CASES. 
 
 Ixiii 
 
 References are to pages. 
 
 Connelly v. Manhattan R. Co. (60 Hun, 
 
 495, 89 N. Y. State Rep. 561), 543. 
 Connelly v. O'Conner (26 N. Y. State 
 
 Rep. 840, 117 N. Y. 91), 168. 
 Conner v. Keese (105 N. Y. 643), 43. 
 Conner v. State (4 Yerg. 137), 667. 
 Connerton v. Delaware & H. C. Co. 
 
 (169 Pa. St. 339), 351. 
 Conrad v. Griffey (16 How., U. S., 38, 
 
 46), 34. 
 Conro V. Port Henry I. Co. (12 Barb. 
 
 27), 314. 
 Conrod v. Fisher (37 Mo. App. 352), 
 
 288, 320. 
 Conselman v. Collins (85 111. App. 68), 
 
 302. 
 Consolidated Ice Mach. Co. v. Keifer 
 
 (134 111. 481), 11. 
 Consol. R. E. Co. v. Cashow (41 Md. 
 
 . 59), 564. 
 Constable v. Lefever (66 Hun, 638), 
 
 691. 
 Continental Car Co. v. Prewit (65 Tex. 
 
 135), 500. 
 Continental Ins. Co. v. Insurance Co. 
 
 of Pa. (51 Fed. Rep. 884), 469, 584. 
 Continental Nat. Bank v. National 
 
 Bank of Com. (50 N. Y. 575), 126. 
 Converse v. Cook (31 Hun, 417), 155, 
 
 156. 
 Conway v. New Orleans & C. R Co. 
 
 (46 La. Ann. 1429), 6. 
 Conwell V. Watkins (71 111. 489), 600. 
 Coogler V. Rhodes (38 Fla. 340), 695, 
 
 699, 701. 
 Cook V. Baraboo First Nat Bank (83 
 
 Wis. 31), 277. 
 Cook V. Castle (81 Tex. 678), 633. 
 Cook V. Hart (18 Tex. 554), 66. 
 Cook V. Knock (27 111. 236), 130. 
 Cook V. New York El. R. Co. (144 N. 
 
 Y. 115), 684. 
 Cook V. Patterson (35 Ala. 102), 646. 
 Cook V. Standard L. & Aco. Ins. Co. 
 
 (84 Mich. 13), 583. 
 Cooke V. Brown (34 N. H. 460), 34. 
 Cooke V. Green (11 Price, 739), 654. 
 Cooke V. Solteau (2 S. & Stu. 154), 647. 
 Cooke V. Tanswell (8 Taunt. 450), 249. 
 Cookton V. Pittsburg & W. R Co. (179 
 
 Pa. St. 184), 553. 
 
 Cooley V. Faltz (85 Mich. 47), 94. 
 Coon V. People (99 111. 368), 698. 
 Coonrod v. Madden (136 Ind. 197), 327. 
 Coope V. Dedrick (33 Barb. 516), 620. 
 Cooper V. Georgia P. R Co. (92 Ala. 
 
 829). 611. 
 Cooper V. Cranberry (33 Miss. 117), 249. 
 Cooper V. Kane (19 Wend. 886), 294. 
 Cooper V. Merrill (4 Yeates, 341), 465. 
 Cooper V. Moore (44 Miss. 286), 613. 
 Cooper V. Standly (40 Mo. App. 138), 
 
 643. 
 Cooper V. State (86 Ala. 610), 74. 
 Cooper V. Turner (2 Stark. Ev. 497), 
 
 373. 
 Cooper V. Wood (1 Colo. App. 101), 
 
 407. 
 Cope V. Dodd (13 Pa. St 33), 293. 
 Cope V. Pearce (7 Gill, 347), 433. 
 Copp V. Hardy (33 Mo. App. 588), 10. 
 Corbett v. Brooklyn, B. & W. E. R 
 
 Co. (84 Hun, 375), 349. 
 Corbett v. St Louis, I. M. & S. R Co. 
 
 (26 Mo. App. 641), 94. 
 Corfield v. Coryell (4 Wash. C. C. 371), 
 
 654. 
 Cork V. Bacon (45 Wis. 192), 816. 
 Corinne Mill C. & S. Co. v. Johnson 
 
 (156 U. S. 574), 342. 
 Corker v. Corker (87 Cal. 643), 283. 
 Corker v. Corker (95 Cal. 308), 557. 
 Corn V. Rosenthal (48 N. Y. State Rep. 
 
 674), 333. 
 Cornel v. Cornel (12 Hun, 312), 158. 
 Cornelius v. Brawley (109 N. C. 543), 
 
 157. 
 Cornelius v. Com. (15 B. Mon., Ky., 
 
 539), 31. 
 Cornelius v. Hanby (150 Pa. St 359), 
 
 143. 
 Cornelius v. Rieser (44 N. Y. State 
 
 Rep. 491, 401. 
 Cornell v. Cook (7 Cowen, 310, 313), 
 
 320, 405. 
 Cornell v. Markam (19 Hun, 275). 693. 
 Cornet v. Williams (20 Wall. 226), 335, 
 
 242. 
 Cornett v. Fain (33 Ga. 319), 508. 
 Corning v. Ashley (4 Denio, 354), 466. 
 Corning v. Corning (6 N. Y. 97, 100), 
 
 71, 84. 
 
Ixiv 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Cornish v. Abington (4 Hurl. & N. 
 
 549), 126. 
 Cornish v. Farm Building Ins. Co. (74 
 
 N. Y. 295), 564 
 Cornish v. Graff (36 Hun, 160), 693. 
 Cornish v. Insurance Co. (74 N. Y. 
 
 296), 534. 
 Cornwall v. Cagwin (44 N. Y. State 
 
 Rep. 13X 704. 
 Corrie v. Cummins (26 Ga, 690), 433. 
 Corson v. Berson (86 CaL 433), 320, 
 
 497. 
 Corter v. Coal Co. (77 Pa. St 286), 393. 
 Cory V. Bretton (4 C. & P. 462), 138. 
 Cory V. The Mecca (H. L. E. 1897, A. 
 
 C. 286), 639. 
 Cosper V. Nesbit (25 Pac. Rep. 86G), 
 
 270. 
 Cost V. Delaware Ins. Co. (2 Wash. 
 
 C. C. 375), 608. 
 Costello V. Crowell (189 Mass. 588), 
 
 444, 499. 
 Coster V. Kansas City Cable R Co. 
 
 (43 Fed. Rep. 37), 609. 
 Costigan v. Mohawk & H. R. Co. (2 
 
 Denio, 600, 609, 616), 339, 638. 
 Cosulich et al. v. Standard Oil Co. 
 
 (122 N. Y. 118, 88 N. Y. State Rep. 
 
 287), 848. 
 Cottle V. Cole (30 Iowa, 481), 51. 
 Cotton V. State (87 Ala. 75), 92. 
 Coghran v. Gilman (81 Iowa, 443), 182. 
 Coulter V. Express Co. (56 N. Y. 585), 
 
 39. 
 Coulter V. Stafford (48 Fed. Rep. 366), 
 
 194 
 Counselman v. Hitchcock (143 U. S. 
 
 547), 75. 
 Coursey v. Johnston (134 Pa. St 838), 
 
 164. 
 Courteen v. Touse (1 Campb. 43), 698. 
 Cover V. Mayers (33 Ark. 850), 617. 
 Cover V. Myers (74 Md. 406), 16, 
 Covert V. Gray (34 How. Pr., N. Y., 
 
 450), 636. 
 Covey V. Campbell (115 Ind. 157), 556. 
 Cowan V. Fair Bros. (33 L. R. A. 839, 
 
 118 N. C. 406), 363. 
 Cowart V. Williams (34 Ga. 167), 887. 
 Cowder v. Reynolds (13 Serg. & 
 
 Rawle, 281), 38. 
 
 Cowell V. Cowell (14 App. Div. 80), 39. 
 Cowing V. Altnian (79 N. Y. 167), 40. 
 Cowles V. Merchants (140 Mass. 377), 
 
 588. 
 Cowles V. Reeves (100 N. C. 417), 599, 
 
 636. 
 Cowley V. Colwell (91 Mich. 537), 548. 
 Cowman v. Rogers (73 Md. 408), 632. 
 Cox V. Derringer, 82 Pa. St. 236), 362. 
 Cox V. Freedley (33 Pa. St. 134), 654 
 Cox V. Marrow (14 Ark. 603), 641. 
 Cox V. Paterson (30 Ala. 608), 319. 
 Cox V. Syenite Granite Co. (39 Mo. 
 
 App! 424), 183, 187. 
 Cox V. Ward (107 N. C. 507), 324, 288. 
 Coxe V. Berringer (78 Pa. St 271), 650. 
 Cozzens v. Chicago H. P. B. Co. (166 
 
 111. 313), 488. 
 Cozzens v. Gillespie (4 Mo. 82), 633. 
 Crabtree v. Atchison (13 Ky. L. Rep. 
 
 331), 617. 
 Crabtree v. Rile (21 111. 180), 26. 
 Craft V. State (3 Kan. 450), 146. 
 Crafts V. Clark (38 Iowa, 237), 564 
 Craig V. Adair (22 Ga. 373), 405. 
 Craig V. Craig (5 Rawle, 91), '35. 
 Grain v. Fox (16 Barb. 184), 633. 
 Grain v. Huntington (81 Tex. 614), 253. 
 Grain v. Wright (46 111. 107), 400, 511. 
 Crake v. Crake (18 Ind. 156), 641. 
 Cramer v. Shriner (18 Md. 147). 364 
 Crandall v. Willig (166 111. 333), 263. 
 Crane v. Dexter (5 Wash. 479), '580. 
 Crane v. Maynard (12 Wend. 408), 66, 
 Crane v. Pacific Bank (106 Cal. 64),, 
 
 110. 
 Crary v. Sprague (12 Wend. 41), 475. 
 Crass V. People (49 111. 152), 145. 
 Cravens v. Gilliland (63 Mo. 38), 816. 
 Crawford v. Blackburn (17 Md. 49), 
 
 433. 
 Crawford v. Branch Bank (8 Ala. 79), 
 
 335. 
 Crawford v. Kindbrough (76 Cal. S99), 
 
 655. 
 Crawford v. Loeper (35 Barb. 419), 448. 
 Crawford v. Parker (96 Ga, 156), 107. 
 Crawford v. State (113 Ala. 1), 546, 
 
 708. 
 Crawford County v. Coppock (79 
 
 Iowa, 483), 267, 309. 
 
TABLE OF CASES. 
 
 IXT 
 
 ^ef&rences are to pages. 
 
 Crawford Peerage Case (2 H. L. C. 
 
 544, 545), 234. 
 Crawfordville v. Braden (130 Ind. 
 
 149), 187. 
 Crayeroft v. Walker (36 Mo. App. 
 
 469), 342. 
 Crease v. Barrett (1 C, M. & R. 919, 
 
 929, 930), 417, 419, 650. 
 Creery v. Holly (14 Wend. 36), 293. 
 Crenshaw v. Bradley (52 Ark. 318), 
 
 360. 
 Crichton v. Smith (34 Md. 42, 47), 224. 
 Crittle V. Crittle (21 Mo. 532), 212. 
 Crira V. Fleming (133 Ind. 438), 477. 
 Crisp V. Anderson (1 St. 35), 349. 
 Crocher v. Getchell (23 Me. 393), 813. 
 Crockett V. Althouse (85 Mo. App. 
 
 404), 413, 498. 
 Crogan v. Carelton (21 Me. 493), 206. 
 Cromer v. Pickney (3 Barb. Ch. 466), 
 
 391. 
 CromptoD V. Pratt (105 Mass. 355), 
 
 639. 
 Cromwell v. County of Sao (94 U. S. 
 
 351), 108. 
 Crouan v. Cotting (99 Mass. 334, 337), 
 
 697. 
 Cronk v. Chicago, M. & St. P. E. Co. 
 
 (S. D., 54 Am. & Eng. R Cas. 
 
 525), 613. 
 Cronk v. Frith (9 C. & P. 197), 225. 
 Crooks V. Bunn (136 Pa. St. 868), 35, 
 
 485. 
 Cropp V. Cropp (88 Va. 753), 634. 
 Cropsey v. Averill (8 Neb. 157), C13. 
 Crosby t. People (137 111. 225), 517. 
 Crosby v. Percey (1 Tauut 364), 231. 
 Crosby v. D. & H. C. Co. (138 N. Y. 
 
 641, 40 N. Y. State Rep. 85), 291 
 Cross V. Cross (3 Paige, 139), 398. 
 Cross V. HoUister (47 Kan. 653), 310. 
 Cross V. Lewis (3 B. & C. 686), 649. 
 Cross V. Smith (85 Hun, 49), 164. 
 Crossland v. Mut. Sav. Bank (121 Pa. 
 
 et 65), 519. 
 Crossley v. Dixon (10 H. L. C. 293), 120. 
 Crossman v. Fuller (17 Pick. 171), 330. 
 Crossman v. May (68 Ind. 243), 122. 
 Crotty V. Union Mut L. Ins. Co. (144 
 
 U. S. 621), 624. 
 
 Crow V. Conant (90 Mich, 247, 30 Am. 
 
 St. Rep. 487), 617. 
 Crowder v. Hopkins (10 Paige, 183)^ 
 
 446. 
 Crowe V. Colbeth (63 Wis. 643), 200. 
 Crowell V. Kirk (3 Dev. 355). 27. 
 Cruger v. McCloughry (41 N. Y. 219), 
 
 67. 
 Crumes v. State (28 Tex. App. 516), 
 
 583. 
 CrumptoB V. State (53 Ark. 273), 37. 
 Crusen v. State (10 Ohio St 258), 384. 
 Cubbison v. Curry (3 Watts & Serg. 
 
 362), 134. 
 Cubit V. Porter (8 B. & C. 257), 655. 
 Cuddy V. Brown (78 111. 415), 432. 
 Culbertson v. HoUiday (50 Neb. 229), 
 
 425. 
 Culbertson & Blair Packing Co. v. 
 
 City of Chicago (11 IlL 651), 
 
 688. 
 Culver V. Dwight (6 Gray, 644), 588. 
 Culver V. Marks (123 lud. 554), 633. 
 Culver V. S. & W. L. Co. (53 Minn.. 
 
 360), 469. ' 
 Culver V. Uthe (133 U. S. 655), 353. 
 Culver V. Wilkinson (145 U. S. 205), 
 
 308. 
 Cumberland & P. R Co. v. State (73. 
 
 Md. 74), 591. 
 Cummings v. BrommeJl (53 N. J. L. 
 
 52), 297. 
 Cummings v. Morris (25 N. Y. 625),. 
 
 373. 
 Cummings v. McKinney (5 111. 57), 
 
 249. 
 Cummings v. Putuam (19 N. H. 969), 
 
 324. 
 Cummings v. Thompson (18 Minn. 
 
 252), 313. 
 Cunliffe v. Sefton (3 East, 183), 231. 
 Cunningham v. Cunningham (2 Daw.. 
 
 482, 511, 514), 435. 
 Cunningham v. Fuller (35 Neb. 58),. 
 
 518. 
 Cunningham v. Martin (46 Kan. 353),. 
 
 331. 
 Cunningham v. Massena Springs F. 
 
 C. R Co. (63 Hun, 439, 44 N. Y. 
 
 State Rep. 723), 379. 
 
Ixvi 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Cunningham v. N. Y. O. & H. E. E. 
 
 Co. (49 Fed. Eep. 439), 567. 
 Cunningham v. Parke (97 Mass. 172), 
 
 889. 
 Cunningham v. Union Pacific E. Co. 
 
 (4 Utah, 206), 258. 
 Cunningham v. Whitford (74 Hun, 
 
 293), 152. 
 Currier v. Gale (14 Gray, 504), 456. 
 Curtis V. Aaronson (49 N. J. 68), 416. 
 Curtis V. Belknap (31 Vt. 433), 226. 
 Curtis V. Fay (37 Barb. 64), 59, 69, 404. 
 Curtis V. Moore (20 Md. 93), 487. 
 Curtis V. O'Brien (20 Iowa, 376), 123. 
 Curtis V. Solteau (34 N. Y. State Eep. 
 
 767), 296. 
 Curtis V. Strong (4 Day's Cases, 51), 
 
 134 
 Gushing v. Friendship (89 Me. 535), 
 
 118. 
 Custeau v. St. L. L. Imp. Co. (88 Wis. 
 
 311), 265. 
 Custer V. Barington (2 Watts & Serg. 
 
 505), 706. 
 Cutler V. Wright (22 N. Y. 472), 194. 
 Cutter V. State (86 N. J. L. 125), 598. 
 Cuttle V. Brockway (33 Pa. St. 45), 126. 
 Cuyler v. McCartney (40 N. Y. 331, 
 
 235), 508, 510. 
 
 D. 
 
 Daggett V. Colgan (93 Cal. 53), 195. 
 Dailey v. State (10 Ind. 536), 181. 
 Dakin's Ex'rs v. Walton (85 Hun, 501), 
 
 160. 
 Dale Bros. Co. v. Cosmopolitan P. Co. 
 
 (167 Mass. 481), 133. 
 Dale V. Eosevelt (1 Paige, 35), 387. 
 Dalton V. Fitzgerald (1897, 1 Ch. 440), 
 
 123. 
 Daly V. Chicago, M. & St. P. R Co. 
 
 (45 Minn. 319), 607. 
 Damon v. Carroll (163 Mass. 304), 603. 
 Dan V. Brown (4 Cowen, 418), 202, 
 
 213. 
 Dana v. Conaut (30 Vt. 246), 245. 
 Dana v. Fielder (12 N. Y. 40), 305, 321. 
 Dana v. Taylor (150 Mass. 35), 295. 
 Dauby v. Dan by (5 Jur., N. S., 54), 630, 
 
 Dane v. Lady Kirkwall (3 C. & P. 
 
 683), 109. 
 Danforth v. Briggs (89 Me. 316), 601. 
 Daniels v. Hamilton (52 Ala. 105), 625. 
 Daniels v. Johnson (39 Ga. 307), 337, 
 
 371. 
 Daniels v. Smith (130 N. Y. 696), 254 
 Daniels v. Woonsooket (11 R. L 4), 
 
 139. 
 Danthill v. StinsoH (63 Mo. 368), 189. 
 Dapa V. Manns (1 Wm. Saund. 376), 
 
 196. 
 Darby v. Eoberts (3 Tex. Civ. App. 
 
 437), 128. 
 Darragh, Matter of (53 Hun, 591), 99. 
 Darwin v. Keigher (45 Minn. 64), 178. 
 Dauphin v. United States (6 Ct. 01. 
 
 231), 564 
 Dave V. State f37 Ark. 363), 637. 
 Davenport v. Hannibal (110 Mo. 514), 
 
 100. 
 Davenport Co. v. Pennsylvania R Co. 
 
 (166 Pa. St. 480), 89. 
 Davey v. Lohrmann (39 N. Y. State 
 
 Eep. 207), 129. 
 Davis V. Bartlett (13 Ohio St 587), 313, 
 
 364 
 Davis V. Bo we (118 N. Y. 55), 600. 
 Davis V. Carpenter (13 How. Pr., N. Y., 
 
 387), 54. 
 Davis V. Chicago, E. L & P. B. Co. (83 
 
 Iowa, 744), 643. 
 Davis V. Cook (14 Nev. 355), 697. 
 Davis V. Davis (108 N. C. 501), 118. 
 Davis V. Ely (104 N. C. 16), 334. 
 Davis V. Fredericks (8 Mont 262), 575. 
 Davis V. Gallagher (124 N. Y. 487), 159, 
 
 214 
 Davis v. Garrett (91 Tenn. 147), 637. 
 Davis V. Grand Eapids F. Ins. Co. (71 
 
 N. Y. State Eep. 813), 634 
 Davis V. Hopkins (18 Colo. 153), 333. 
 Davis V. Moody (15 Ga. 175), 331. 
 Davis V. Morgan (64 N. C. 570), 813. 
 Davis V. Morgan (11 App. Div. 440), 
 
 151. 
 Davis v. Sawyer (62 N. H. 179), 118. 
 Davis V. Seaman (64 Hun, 573), 160, 
 
 176. 
 Davis V. Smith (43 Vt 269), 133. 
 
TABLE OF CASES. 
 
 Ixvii 
 
 References are to pages. 
 
 Davis V. State (17 Ala. 354), 603. 
 Davis V. Stout (136 Ind. 13), 362. 
 Davis V. Sweeney (80 Iowa, 391), 680. 
 Davis V. Tingle (8 B, Mon., Ky., 539), 
 
 124. 
 Davis V. United States (160 U. S. 469), 
 
 658. 
 Davis V. United States (165 U. S. 578), 
 
 700. 
 Davis' Estate (10 Mont. 238), 630. 
 Dawes v. Shedd (14 Mass. 6), 311. 
 Dawkins v. Lord Rokeby (L. R. 8 Q. B. 
 
 355), 385. 
 Dawson v. Bristol (97 Ga. 409), 301. 
 Dawson v. Hamelrick (33 W. Va. 675), 
 
 150. 
 Dawson v. Kittle (4 Hill, 107), 390. 
 Day V. Hammond (57 N. Y..4S4\ 53. 
 Day V. Philbrook (89 Me. 463), 134. 
 Day V. Porter (161 111. 335), 697. 
 Day V. Stickney (14 Allen, 355), 37. 
 Day V. Thompson (63 Ala. 309), 313. 
 Dean v. Wyooif (3 Seld. 391), 693. 
 Dearlove v. Edwards (166 111. 619), 
 
 367. 
 Dearmond v. Dearmond (13 Ind. 455), 
 
 50. 
 De Camp v. Mclntire (115 N. Y. 358), 
 
 272. 
 De Caumant v. Morgan (51 N. Y. State 
 
 Rep. 541), 720. 
 De Coursey v. Johnston (134 Pa. St. 
 
 338), 154, 171. 
 Deerfield v. Arms (17 Pick. 41), 654. 
 Deering v. Creighton (19 Oreg. 118), 
 
 322, 330. 
 De Ford v. Orvis (43 Ean. 303), 414. 
 De Fort v. Painter (30 D. R. A. 722), 
 
 696. 
 De Hass v. Dibert (30 L. R. A. 189), 
 
 313. 
 De Haven v. De Haven (77 Ind. 336), 
 
 696. 
 De Jarnette v. Harper (45 Mo. App. 
 
 415), 395. 
 De Jarnette v. MoDaniel (93 Ala. 215), 
 
 645. 
 Delafield v. Hand (3 Johns. 310), 338. 
 De la Mott's Case (31 How. St. Tr. 
 
 810), 573. 
 
 E 
 
 De Louoh v. Smith (83 Ga. 665), 308. 
 De Lavallette v. Wendt (31 Am. Rep. 
 
 494), 330. 
 De Meli v. De Meli (130 N. Y. 485), 
 
 105. 
 De Merritt v. Meserve (39 N. H. 521), 
 
 308. 
 Deming v. Butcher (91 Iowa, 113), 93. 
 Deming v. Supreme Lodge K. of P. 
 
 (60 Hun, 350, 131 N. Y. 533), 360, 
 
 613. 
 De Mott V. Jones (3 Wall. 9), 54. 
 Dempy v. Kipp (61 N. Y. 462), 375. 
 Dench v. Den oh (2 P. & D. 60), 337. 
 Denehy v. O'Connell (66 Conn. 175), 
 
 713. 
 Denham v. Jayne (3 Hun, 614), 1.59. 
 Denise v. Denise (110 N. Y. 563), 163, 
 
 718. 
 Denu d. Tazwell v. Barnard (Cowp. 
 
 599), 650. 
 Dennett v. Dow (17 Me. 19), 27. 
 Dennis v. Comans (61 N. Y. 642), 57. 
 Denny v. Denny (123 Ind. 240), 602. 
 Denser v. Hamilton (53 Mo. App. 394), 
 
 307. 
 Denser v. Walkup (43 Mo. App. 635), 
 
 89. 
 Dent V. Pickens (34 W. Va. 340), 13. 
 Denton v. Peters (L. R. 5 Q. B. 475), 
 
 313, 330. 
 Denver Tram. Co. v. Owens (30 Colo. 
 
 107), 92. 
 Denver & R. G. R Co. v. Griffith (17 
 
 Colo. 598), 686. 
 Denver, T. & G. U. Co. v. De Graff (3 
 
 Colo. App. 43), 139. 
 Derry v. Peck (L. R. 14 App. Cas. 
 
 337), 51. 
 De Soucey v. Manhattan R Co. (39 
 
 N. Y. State Rep. 79), 606. 
 Destrahan v. Louisiana Cypress L. Co. 
 
 (49 La. Ann. 87), 387. 
 Desverges v. Desverges(31 Ga. 73), 650. 
 Detreest v. Bloomingdale (5 Denio, 
 
 405), 639. 
 Detroit, etc. R Co. v. Van Steinberg 
 
 (17 Micb. 99), 706. 
 Deveraux v. Sun P. Office (51 Hun, 
 
 147), 385. 
 
Ixviii 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Devereux v. McMahon (108 N. C. 134), 
 
 645. 
 Devlin v. New York (53 N. Y. State 
 
 Rep. 455), 677. 
 Devol V. Dye (138 Ind. 321), 158, 178. 
 Dew V. Gaston (25 N. J. L. 615), 655. 
 Dew V. Eeed (53 Ohio St. 96), 40. 
 Dewitt V. Barley (17 N. Y. 340), 587. 
 Dibble v. Dimick (143 N. Y. 849), 48, 
 
 200. 
 Dick T. Williams (130 Pa. St. 41), 152. 
 Dick Bros. Q. B. Co. v. Finnell (39 Mo. 
 
 App. 276), 399. 
 Dickerman v. Groves (6 Conn. 809), 
 
 106. 
 Dickeyraan v. Quincy Mut Ins. Co. 
 
 (07 Vt. 601), 203. 
 Dickinson v. Dickinson (63 Hun, 576), 
 
 143. 
 Dickinson v. Leominster Sav. Bank 
 
 (153 Mass. 49), 360. 
 Dickerson v. Matheson (50 Fed. Rep. 
 
 73), 643. 
 Dickson v. Hartmann Mfg. Co. (179 
 
 Pa. St. 343), 333. 
 Dickson v. Wilton (1 F. & F. 419), 103. 
 Diel V. Missouri P. R. Co. (39 Mo. App. 
 
 454), 623. 
 Dietrich v. Dreutel (43 Hun, 343), 45. 
 Dietz V. Fourth Nat. Bank (69 Mich. 
 
 287), 576. 
 Dikeman v. Arnold (87 Mich. 495), 367. 
 Dillard v. State (58 Miss. 368), 588. 
 Dilleber v. Home Life Ins. Co. (69 
 
 N. Y. 256), 5. 
 Dilling v. Murry (6 Ind. 334), 111. 
 Diramitt v. Hannibal & St. J. R Co. 
 
 (40 Mo. App. 654), 609. 
 Dimmick v. Dimmick (95 Cal. 838), 
 
 603. 
 Dingeldein v. Third Ave. R. Co. (9 
 
 Bosw. 79), 50. 
 District of Columbia v. Gray (33 
 
 Wash. L. Rep. 340), 18. 
 Dittsnhofer v. State (34 Ohio St 91), 
 
 88. 
 Dixon V. Dunham (13 111. 324), 394. 
 Dixon v. Hammon (10 H. L. C. 293), 
 
 120. 
 Dixon V. Louisiana El. L. P. Co. (47 
 
 La. Ann. 1147), 350. 
 
 Dixon V. State (86 Ga. 757), 80. 
 Dixon- Wood Co. v. Phillips Glass Co. 
 
 (169 Pa. St. 167), 265, 585. 
 Doane v. Garretson (34 Iowa, 351), 
 
 685. 
 Dobbin v. Blanchard (94 Ga. 500), 311. 
 Dobbins v. Brown (118 N. Y. 188), 611. 
 Dodd V. Terapleman (76 Tex. 57), 274. 
 Dodds V. South S. P. L. U. (1895, 2 Q. 
 
 B. 133), 685. 
 Dodge V. Britton (Meigs, Tenn., 84), 
 
 146. 
 Dodge V. Crandall (30 N. Y. 306), 317. 
 Dodge V. Kiene (28 Neb. 216), 308. 
 Dodge City v. Wright (4 Kan. 667), 
 
 41. 
 Doe v. Allen (8 T. R. 147), 227. 
 Doe v. Barton (11 A. & E. 307), 120. 
 Doe V, Baytop (3 A. & C. 188), 130. 
 Doe V. Burdette (4 A. & E. 1), 332. 
 Doe V. Cliflford (3 C. & K. 448), 251. 
 Doe V. Keeling (11 Q. B. 884), 232. 
 Doe V. Perkins (3 T. R. 749), 700. 
 Doe V. Phillips (8 Q. B. 158), 232. 
 Doe V. Reagan (5 Blackf. 217), 588. 
 Doe V. Sackamore (5 A. & E. 705), 578. 
 Doe V. Smyth (4 M. & S. 347), 120. 
 Doe V. Stephenson (8 Esp. 284), 232. 
 Doe V. Suckerman (5 A. & E. 703), 237, 
 
 228. 
 Doe V. Wainwright (8 A. & E. 691), 
 
 315. 
 Doe V. Walker (4 Esp. 50), 333. 
 Doe V. Watkins (3 Bing. 431), 93. 
 Doe V. Wiley (8 B. & C. 33), 283. 
 Doe V. Wilson (10 Moore Priv. Coun. 
 
 Cas. 503), 578. 
 Doe d. Barrett v. Kemp (7 Bing. 322), 
 
 654. 
 Doe d. Bowerman v. Syborn (7 T. R 
 
 2), 647. 
 Doe d. Burdette v. Wrighte (3 B. & A. 
 
 719), 648. 
 Doe d. Gilbert v. Roes (7 M. & W. 103), 
 
 239. 
 Doe d. Graham v. Scott (11 East, 383), 
 
 647. 
 Doe d. Harrison v. Hampson (4 C. P. 
 
 267), 654. 
 Doe d. Mason v. Mason (1 Wils. 68),, 
 
 647. 
 
TABLE OF CASES. 
 
 Ixix 
 
 References are to pages. 
 
 Doe d. McDonald v. Long (4 U. C, 
 
 Q. B., 146), 209. 
 Doe d. Oldham v. Wolley (8 B. & C. 
 
 33), 647. 
 Doe d. Pi-ing v. Pearsley (7 B. & C. 
 
 304), 654. 
 Doe d. Tenwick v. Reed (5 B. & A. 
 
 333), 647. 
 Doggelt V. Wallace (75 Tex. 852), 565. 
 Doherty v. Lord (59 N. Y. State Rep. 
 
 445), 69. 
 Doherty v. Matsell (119 N. Y. 646), 655. 
 Dohn V. Dawson (84 Hun, 110), 349. 
 Dolan V. Dolau (89 Ala. 356), 150. 
 Dolder v. Huntingfield (11 Ves. 292), 
 
 184. 
 DoUey v. Miller (2 Tex. Civ. App. 133), 
 
 713. 
 Donnell v. Jones (13 Ala. 490), 698. 
 Donnelly v. State (26 N. J. L. 463), 706. 
 Donohue v. Donohue (53 Minn. 560), 
 
 600. 
 Donohue v. People (66 N. J. L. 208), 
 
 140. 
 Donohue v. Whitney (133 N. Y. 178), 
 
 233. 
 Don Wook V. Washington Mills Co. 
 
 (16 Wash. 459), 800. 
 Dooley t. Raynes (86 Va. 644), 201. 
 Doolittle V. Perry (20 Kan. 230), 318, 
 
 327. 
 Doolittle V. Lewis (7 Johns. Ch. 45), 
 
 382. 
 Dorr V. Stockdale (19 Iowa, 269), 113. 
 Dorsey v. Picke (57 Hun, 580), 632. 
 Doucet V. Geoghegan (9 Ch. D. 441), 13. 
 Doud V. Donnelly (45 N. Y. State Rep. 
 
 834), 713. 
 Doud V. Watson (105 N. C. 476), 638. 
 Doughty V. Doughty (5 N. Y. State 
 
 Rep. 95), 164. 
 Dougherty v. Metropolitan Ins. Co. 
 
 (87 Hun, 15), 100. 
 Douglass V. Bank of Commerce (97 
 
 Tenn. 183), 618. 
 Douglass V. Dakin (46 Cal. 49), 623. 
 Douglass V. Rowland (34 Wend. 35), 
 
 211. 
 Dovenhan v. Chicago & N. W. R. Co. 
 
 (93 Wis. 373), 677. 
 
 Dowell V. Guthrie (99 Mo. 653), 606. 
 Dowling V. Salliotte (83 Mich, 131), 
 
 271. 
 Downey v. Sawyer (157 Mass. 418), 
 
 207,. 352. 
 Dox V. Backenstose (13 Wend. 543), 
 
 383. 
 Doyle T. Manhattan R Co. (128 N. Y. 
 
 488), 679. 
 Doyle V. San Diego L. & T. Co. (46 
 
 Fed. Rep. 709), 378. 
 Doyle V. Ungish (143 N. Y. 556), 342. 
 Drake v. Mooney (31 Vt. 617), 363. 
 Drake v. Rogers (33 Me. 534), 816. 
 Drake v. State (110 Ala. 9), 715. 
 Draper v. Delaware & H. C. Co. (118 
 
 N. Y. 118), 613. 
 Draper v. Hatfield (134 Mass. 53), 139. 
 Dresler v. Hard (127 N. Y. 235), 579. 
 Drew V. Tarbell (117 Mass. 90), 143. 
 Driggers v. State (38 Fla, 7), 703. 
 Driver v. Ford (90 111. 595), 370. 
 Drohn v. Brewer (77 Mo. 380), 706. 
 Druley v. Johnson (31 111. App. 367), 
 
 565. 
 Drummond v. Prestman (13 Wheat 
 
 515), 311. 
 Dubois V. Baker (30 N. H. 858), 168. 
 Dubois V. Hermance (56 N. Y. 673), 53. 
 Duchess of Kingston's Case (30 St. Tr. 
 
 572), 94. 
 Ducie V. Ford (138 U. S. 587), 271, 872. 
 Dudgeon v. Pembroke (3 App. Cas. 
 
 384), 608. 
 Duffield V. Hue (129 Pa. St 94), 148, 
 
 164. 
 Duffield V. Hue (106 Pa. St 603), 170. 
 Dufford V. Smith (46 N. J. Eq. 316), 
 
 860. 
 Duffy V. O'Donovan (46 N. Y. 333), 56. 
 Duffy V. People (26 N. Y. 588), 317. 
 Dunbar v. United States (156 U. S. 
 
 185), 244. 
 Duncan v. Preferred Mut Ace. Ass'n 
 
 (139 N. Y. 623), 286. 
 Dunfee v. Ryan (116 U. S. 491), 45, 67. 
 Dunham v. Boyd (64 Conn. 397), 40. 
 Dunham's Appeal (27 Conn. 193), 587. 
 Dunlap V. Com. (108 Pa St 607), 654. 
 Dunlap V. Dunlap (94 Mich. 11), 175. 
 
Ixix 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Dunlavey v. Watson (38 Iowa, 398), 
 
 244. 
 Dunn V. O'Keefe (56 Hun, 648), 207. 
 Dunn V. People (39 N. Y. 529), 140. 
 Dunn V. Rector of St, Andrew's (14 
 
 Johns. 118), 880. 
 Dupuis V. Thompson (16 Fla. 69), 362. 
 Duquette v. Richer (102 Mich. 483), 12. 
 Duquid v. Edwards (50 Barb. 388), 
 
 287. 
 Duvant v. Abendroth (15 N. Y. State 
 
 Rep. 389), 62. 
 Dur^in V. Ireland (14 N. Y. 823), 321. 
 Durham v. Beaumont (1 Camp. 207), 
 
 252. 
 Durham v. Lamphere (3 Gray, 268), 
 
 654. 
 Djrrah v. Goa (77 Mich. 16), 341. 
 Duryea v. Vosburgh (138 N. Y. 621), 
 
 565. 
 Dutillet V. Blanchard (14 La. Ann. 97), 
 
 239. 
 Dutton V. Ives (2 Midi. 515), 864. 
 Duttou V. Woodman (9 Cush. 255), 364. 
 Duval V. Duval (54 N. J. Eq. 581), 602. 
 Duval V. Pullman Palace Car Co. (62 
 
 Fed. Rep. 265), 6. 
 Dwight V. Germania h. Ins. Co. (103 
 
 N. Y. 358), 348. 
 Dwyer v. Collins (7 Ex. 639), 90, 247, 
 
 251.' 
 Dye V. Scott (35 Ohio St 194), 326. 
 Dyer v. Brown (52 Hun, 321). 580. 
 Dyer v. Saalmanini (69 Cal. 637), 69. 
 Dyer v. Smith (12 Conn. 384), 564. 
 Dyett V. Pendleton (8 Cowen, 727), 52. 
 Dyke v. Spargur (143 N. Y. 651), 342. 
 Dysart v. Furrow (90 Iowa, 59), 160. 
 
 E. 
 
 Eagan v. Dry Dock E. B. & B. R. Co. 
 
 (12 App. Div. 556), 478, 713. 
 Eagle V. Chicago, M. & St P. R. Co. 
 
 (77 Iowa, 661), 607. 
 Eagle V. Emmett (4 Bradf., N. Y., 117), 
 
 638. 
 Eagle Bank v. Chapin (3 Pick. 180, 
 
 182), 247. 
 Eagle's Case (3 Abb. Pr. 220), 631. 
 
 Eagleton v. Kingston (8 Ves. 473, 474), 
 
 578. 
 Fames v. Fames (41 N. H. 177), 625. 
 Earl V. Lewis (4 Esp. 1), 232. 
 Earl V. Tupper (45 Vt 275), 501. 
 Earl d. Goodwin v. Baxter (3 W. Bl. 
 
 1838), 647. 
 Earl of Roscommon's Claim (6 CI. & 
 
 F. 97), 647. 
 Early v. Com. (86 Va. 931), 319. 
 East Brandywine, etc. R. Co. v. Ranck 
 
 (78 Pa. St 454). 199. 
 East St L. Con. R. Co. v. Wabash, St 
 
 L. & P. R. Co. (24 111. App. 279), 
 
 377. 
 East Tennessee, V. & G. R. Co. v. Smith 
 
 (94 Ga. 580), 503. 
 East Tennessee, V. & G. R Co. v. Tur- 
 
 veyville (97 Ala. 122), 550. 
 East Tennessee. V. & G. E. Co. v. Wat- 
 Son (94 Ala. 684), 681. 
 East Tennessee, V. & G. R Co. v. Wat- 
 son (90 Ala. 41), 580. 
 Easterly v. Goodwin (35 Conn. 373), 
 
 116. 
 Eastman v. New York (153 N. Y. 468), 
 
 687. 
 Eastman v. Shaw (65 N. Y. 522), 330. 
 Eaton V. Carson (59 Me. 510), 507. 
 Eaton v. Hall (5 Met 287). 235. 
 Eaton V. Tallmadge (34 Wis. 217), 433. 
 Eaton V. Walker (76 Mich. 579), 376. 
 Eaton V. White (18 Wis. 518), 618. 
 Ebeneriter v. Dahlman (42 N. Y. Supp. 
 
 867, 19 Misc. Rep. 9), 493. 
 Ebergart v. Page (89 111. 550), 311. 
 Ebersole v. Rankin (103 Mo. 488), 240. 
 Eby V. Eby (5 Pa. St 435), 507. 
 Eccles v. Rodman (57 N. Y. State Rep. 
 
 657, 75 Hun, 535), 12. 
 Eckstein's Petition (148 Pa. St 509), 74. 
 Eddington v. ^tna Life Ins. Co. (77 
 
 N. Y. 564), 96, 97. 
 Eddington v. Mutual L. Ins. Co. (67 
 
 N. Y. 185), 96. 
 Edelen v. Gough (8 Gill, 87), 573. 
 Eden v. Waredale Iron & C. Co. (35 
 
 Ch. D. 287), 248. 
 Bdgeeomb v. Buckhout (146 N. Y. 
 
 332), 685. 
 
TABLE OF OASES. 
 
 Ixxi 
 
 References are to page^. 
 
 Edison Electric Light Co. v. United 
 
 States Electric Light Co. (44 Fed. 
 
 Rep. 394), 89. 
 Edit V. Cutler (137 Mass. 522), 572. 
 Edmonds v. Curtis (8 Colo. Q05), 209. 
 Edsoll V. Howell (86 Hun, 424), 684. 
 Edwards v. Clark (83 Mich. 346), 269, 
 
 233. 
 Edwards v. Cook (3 East, 391), 563. 
 Edwards v. Eegina (9 Ex. 638), 594. 
 Edwards v. Thomas (66 Mo. 483), 363. 
 Edwards v. Three Elvers (102 Mich. 
 
 153), 7. 
 Edwards v. Williams (3 Miss., 2 How., 
 
 846). 205. 
 Egan V. Green (Mich., 45 N. W. Rep. 
 
 74), 414. 
 Egan V. Murray (80 Iowa, 180), 574. 
 Eggleston v. Boardmau (81 Mich. 14), 
 
 556. 
 Ehmann v. Scheuerman (14 N. Y. 
 
 State Rep. 705), 151. 
 Ehrgott V. Mayor, etc. of New York 
 
 (96 N. Y. 264), 69. 
 Eighmie v. Taylor (98 N. Y. 288), 304. 
 Eisenlord v. Clum (44 Alb. L. J. 66, 
 
 38 N. Y. State Rep. 446), 168. 
 Eisenlord v. Clum (136 N. Y. 552), 151. 
 Elam V. State (35 Ala. 53), 24. 
 Eldridge v. Horgreaves (80 Neb. 638), 
 
 409. 
 Eldridge v. State (37 Fla. 168), 13. 
 Elgin V. Joslyn (36 111. App. 301), 585. 
 Elkhart v. Witman (133 Ind. 538), 583. 
 Elison V. Jones (15 N. Y. Supp. 356), 
 
 545. 
 ElUcott V. Martin (5 Md. 509), 313. 
 EUicott V. Pearl (10 Pet. 413), 416. 
 Elliott V. Dudley (19 Barb. 326), 409, 
 
 410. 
 Elliott V. Dycke (78 Ala. 150), 444. 
 Elliott V. Hayden (104 Mass. 180), 113. 
 Elliott V. Martin (6 Md. 509), 368. 
 Elliott V. Nichols (7 Gill, 85, 96), 313. 
 EUiott V. PiersoU (1 Pet. 328, 337), 433. 
 Elliott V. Porter (5 Dana, Ky., 299), 113. 
 Ellis V. Dardin (86 Ga. 368, 11 L. R. A. 
 
 51), 263, 635. 
 Ellis V. Harris (106 N. C. 395), 456. 
 Ellis V. Huff (39 III. 449), 235. 
 
 Ellis V. JaAes (10 Cal. 456), 450. 
 Ellis V. Simpkius (81 Mich. 1), 477. 
 Ellis V. State (35 Fla. 702), 505. 
 Ellis V. Whitehead (95 Mich, 105), 693. 
 Ellis H. Roberts &Co. v. Buckley (145 
 
 N. Y. 315), 356. 
 Ellisou V. Sexton (105 N. C. 356), 410. 
 Ellmaker v. Buckley (16 Serg. & 
 
 .Eawie, 77), 701, 706. 
 Elmira Iron & S. Rolling Mill Co. v. 
 
 Harris (124 N. Y. 380, 35 N. Y. 
 
 State Rep. 343), 407, 408. 
 Elmore v.. State (98 Ala. 13), 308. 
 Elsworth V. Fogg (35 Vt. 255), 370. 
 Elwood V. Western U. T. Co. (45 N. Y. 
 
 549), 867. 
 Ely V. Ehle (3 N. Y. 506), 359. 
 Ely V. Padden (13 N. Y. State Rep. 
 
 53), 566. 
 Embden v. Lisherness (89 Me. 578), 1 la 
 Embry v. Palmer (107 U. S. 314), 57. 
 Emerson v. Mills (88 Tex. 885), 639. 
 Emerson v. Parsons (46 N. Y. 560), 407. 
 Emerson v. Thompson (59 Wis. 619), 
 
 42. 
 Emerson v. White (29 N. H. 482, 491), 
 
 437, 630. 
 Emery v. Baltz (94 N. Y. 408), 63. 
 Emery v. Berry (8 Fost. 473), 339. 
 Emery v. Fowier (39 Me. 336), 114 
 Emery v. Webster (43 Me. 304), 298. 
 Emmel v. Hayes (103 Mo. 186, 11 L. 
 
 R. A. 333), 156. 
 Emmons v. Barton (100 Cal. 662), 108. 
 Enders v. Sternberg (3 Abb. Ct. App. 
 
 Dec. 31), 446. 
 Englehorn v. Reitlinger et al. (133 
 
 N. Y. 76, 33 N. Y. State Rep. 876), 
 
 308. 
 English V. Register (7 Ga. 387), 649. 
 Enliss, V. McAdam (108 N. C. 507), 371, 
 
 449. 
 Ennis v. Smith (14 How., U. S., 400, 
 
 436), 238, 564. 
 Eno V. Crook (10 N. Y. 60), 374. 
 Enos V. Enos (135 N. Y. 609, 48 N. Y. 
 
 State Rep. 393), 698. 
 Enos V. State (131 Ind. 560), 599, 635. 
 Ensign v. Ensign (130 N. Y. 655, 31 
 
 N. Y. State Rep. 657), 338. 
 
Ixxii 
 
 TABLE OF CASES. 
 
 Be/crenccs are to pages. 
 
 Ensley E. Co. v. Chewing (93 Ala. 24), 
 
 586. 
 Ephraims v. Murdock (7 Blackf. 10), 
 
 475, 476. 
 Epperson v. State (5 B, J. Lea, Tenn., 
 
 291, 299), 667. 
 Equitable Trust Co. v. Smith (77 Fed. 
 
 Rep. 677), 118. 
 Erhardt t. Ullnian (51 Fed. Eep. 414), 
 
 •277. 
 Erlinger v. Bonceau (51 111. 94), 196. 
 Erskine v. Adeane (L. E. 8 Ch. App. 
 
 756), 325. 
 Erskine v. Davis (35 111. 351), 397, 637. 
 Erwin v. Brooks (111 N. C. 358), 362. 
 Erwin v. Erwin (54 Hun, 166), 150. 
 Eskridge v. Cincinnati, N. O. & T. P. 
 
 R Co. (43 Am. & Eng. E. Gas. 
 
 176), 586. 
 Eskridge v. State (35 Ala. 30), 217. 
 Esselstyn v. Weeks (12 N. Y. 635), 50. 
 Essex Co. V. Edmunds (13 Gray, 373), 
 
 311. 
 Estate of Brooks (54 Cal. 471), 588. 
 Estate of Darragh (15 N. Y. Super. 
 
 Ct. 453), 96. 
 Esterly v. Cole (3 N. Y. 502), 290. 
 Ethridge v. Balin (72 N. C. 313), 334. 
 Ettinger v. Com. (98 Pa. St. 338, 345), 
 
 304. 
 Eureka I. & S. Works v. Bresnahan 
 
 (66 Mich. 489), 46. 
 Evans v. Covington (70 Ala. 440), 641. 
 Evans v. Evans (41 Cal. 103), 634. 
 Evans v. Keystone Gas Co. (148 N. Y. 
 
 118, 30 L. E. A. 651), 683. 
 Evans v. McKee (152 Pa. St 89), 508. 
 Evans v. Montgomery (95 Mich. 497), 
 
 300. 
 Evans v. Morgan (3 C. & J. 453), 435. 
 Evans v. Eeed (10 A. & E. 151), 23L\ 
 
 417. 
 Evahs v. State (58 Ark. 47), 453. 
 Evans v. Sweet (Ey. & M. 83), 248. 
 Evans V. Williams (60 Barb. 348), 68. 
 Evanston v. Gunn (99 U. S. 660), 439. 
 Everingham v. Eoundell (2 Moo. & R 
 
 138), 239. 
 Everts v. Young (52 Vt. 329}, 450. 
 Ewbb V. Richardson (43 Vt. 465), 426. 
 
 Ewing V. Sparks (7 N. J. L. 59), 467. 
 Exall V. Partridge, in Doe d. Wartney 
 
 V. Grey (1 Stark. 283), 249. 
 Ex parte Baskett (106 Mo. 602), 75. 
 Ex parte Harris, Ee Harris (44 L. J., 
 
 Bkcy., 33), 130. 
 Ex parte Senior (33 L. R A. 133), 74. 
 Ex parte McCabe (46 Fed. Eep. 363), 
 
 181. 
 Ex rel. Gore v. Gibson (13 M. & W. 
 
 637), 203. 
 
 Fabrigas v. Mostyn (11 St. Tr. 171), 
 
 308. 
 Fairohild ^. Bascomb(35 Vt. 398), 139. 
 Fairfax v. Fairfax (3 Cranch, C. C, 
 
 25, 336. 
 Fairlie v. Hastings (10 Ves. 137, 138), 
 
 209. 
 Fairly v. Fairly (38 Miss. 280), 30,447. 
 Fallon V. Lawler (103 N. Y. 338), 66. 
 Farmers,' etc. Bank v. Butchers' & 
 
 D. Bank (16 N. Y. 135), 134. 
 Farmers', etc. Bank v. Eathbone (86 
 
 Vt 19), 315. 
 Farmers', etc. Co. v. Commercial 
 
 Bank (15 Wis. 481\ 300. 
 Farmers' & Citizens' Bank v. Sher- 
 man (33 N. Y. 69), 369. 
 Farmers' Loan & F. Co. v. New York 
 
 & N. R Co. (34 L. R. A. 76, 150 
 
 N. Y. 410, 54 Alb. L. J. 311), 191. 
 Farmers' State Bank v. Pennsylvania 
 
 In v. Co. (53 Kan. 386), 7. 
 Farley v. State (187 Ind. 419), 620, G56. 
 Farnham v. Hotchkisa (3 Abb. Ct 
 
 App. Dec. 93), 50. 
 Farr v. Nicholas (133 ,N. Y. 337,44 
 
 N. Y. State Rep. 555), 301. 
 Farrand v. Aldrich (85 Mich. 593), 585. 
 Farrar v. Churchill (133 U. S. 609), 
 
 630. 
 Farrar v. Cooper (34 Me. 394, 400), 653. 
 Farrar v. Snyder (31 Mo. App. 93), 514. 
 Farron v. Sherwood (17 N. Y. 227), 56. 
 Faulder v. Silk (8 Campb. 126), 109. 
 Faulkner v. National Sailors' Home 
 
 (155 Mass. 458), 274, 891. 
 
TABLE OF CASES. 
 
 Ixxiii 
 
 Eeferences are to pages. 
 
 Fawkes v. Lamb (31 L. J., Q. B., 98), 
 
 888. 
 Fay V. Ames (44 BaVb. 337), 113. 
 Fayette v. Chesterville (77 Me. 28), 556. 
 Faxon v. Hollis (13 Mass. 428), 466.- 
 Fee V. Columbus (168 Pa. St. 382), 15. 
 Fee V. Taylor (83 Ky. 259), 572. 
 Feeney v. Long Island E. Co. (116 
 
 N. Y. 375, 26 N. Y. State Rep. 729), 
 
 99. 
 Fegenbush v. Lang (28 Pa. St. 193), 
 
 313. 
 Fein v. Covenant Mut. Ben. Ass'n (60 
 
 111. App. 374), 117. 
 Fells V. Vestvali (3 Keyes, 153), 54. 
 Felska v. New York C. & H. R. R. Co. 
 
 (153 N. Y. 339), 344, 542. 
 Fenner v. Lewis (10 Johns. 38), 311. 
 Fennerstein's Champagne (3 Wall. 
 
 145), 444. 
 Fenno v. Hannan (127 N. Y. 635), 620. 
 Fenno v. Weston (31 Vt. 345), 307. 
 Fenwick Hall Co. v. Old Saybrook (69 
 
 Conn. 33), 113. 
 Ferguson v. Hubbell (97 N. Y. 507), 
 
 524, 535. 
 Ferguson v. MoBean (91 Cal. 63), 93. 
 Ferguson v. Eafferty (128 Pa. St 337), 
 
 309. 
 Ferrero v. W. U. Tel. Co. (35 L R. A. 
 
 • 548, 9 App. D. C. 455), 687. 
 Ferris v. Hard et al. (135 N. Y. 354, 48 
 
 N. Y. State Rep. 518), 65, 301. 
 Ferris v. Tannebaum (39 N. Y. State 
 
 Rep. 71), 65. 
 Fetherly v. Burke (54 N. Y. 646), 56. 
 Field V. Boynton (33 Ga. 239), 456. 
 Field V. Knapp (108 N. Y. 87), 67. 
 Field V. Morason (47 N. Y. 331), 299. 
 Fielder v. Darrin (50 N. Y. 437), 558. 
 Fiero v. Paulding (6 N. Y. Supp. 133, 
 
 35 N. Y. State Rep. 156), 541. 
 Fifield V. Richardson (34 Vt. 410), 485. 
 Filer v. N. Y. C. R. Co. (49 N. Y. 43, 
 
 47), 401, 540. 
 Filkins v. Baker (6 Lans. 518), 47!. 
 Filkins v. Whyland (34 N. Y. 344), 305, 
 
 324. 
 Finch V. Barclay (87 Ga. 393), 474. 
 Finch r. Chicago, M. & St. P. R Co. 
 
 (46 Minn. 250), 684. 
 
 Finfrock v. Kohl (9 Lans. L. Rev. 313), 
 
 638. 
 Fink V. Algermissen (25 Mo. App. 186), 
 
 520. 
 Fink v. Manhattan R. Co. (29 N. Y. 
 
 State Rep. 153, 15 Daly, 479), 633. 
 Finley v. Green (85 111. 536), 312. 
 Finn v. Finn (13 Hun, 339), 105. 
 Finn's Case (5 Rand. 701), 474. 
 Finton v. Eggleston (40 N. Y. State 
 
 Rep. 936), 157. 
 First Nat Bank v. Balcom (35 Conn. 
 
 357), 396. 
 First Nat Bank v. Green (43 N. Y. 
 
 298), 617. 
 First Nat Bank v. MoManigle (69 Pa. 
 
 St 156), 639. 
 First Nat Bank v. Pedran (118 N. C. 
 
 .671), 311. 
 First Nat Bank, etc. v. Warner et al. 
 
 (55 Hun, 120, 38 N. Y. State Rep. 
 
 450), 359. 
 First Nat Bank of Hornensville v. 
 
 Hyland (53 Hun, 108. 25 N. Y. 
 
 State Rep. 446, 125 N. Y. 711), 575. 
 First Nat Bank of Lyons v. Ocean 
 
 Nat Bank (60 N. Y. 278, 290), 49, 
 
 379. 
 Fish V. Dodge (4 Denio, 311). 676. 
 Fishburne v. Ferguson (84 Va. 87), 
 
 588. 
 Fisher v. Fisher (113 Ind. 474), 53, 68. 
 Fisher v. Fisher (129 N. Y. 654, 43 
 
 N. Y, State Rep. 100), 95. 
 Fisher v. Kyle (37 Mich. 454), 477. 
 Fisher v. Mayor, etc. (67 N. Y. 73), 
 
 443. 
 Fisher v. Monroe (43 N. Y. State Eep. 
 
 118), 564. 
 Fisher v. Munroe (51 N. Y. State Rep. 
 
 585;, 200. 
 Fisher v. Verplanck (17 Hun, 150), IGO. 
 Fiske V. Bailey (51 N. Y. 150), 67. 
 Fiske V. Gowing (61 N. H. 431), 589. 
 Fitch V. Carpenter (43 Barb. 40), 270. 
 Fitch V. Com. (93 Va. 824), 386. 
 Fitschen v. Thomas (9 Mont 53), 360. 
 Fitzgerald y. Quinn (163 111. 354), 646, 
 
 655. 
 Fitzgerald & M. Constr. Co. v. Fitz- 
 gerald (137 U. S. 98), 381. 
 
Ixxiv 
 
 TABLE, OF GASES. 
 
 Ifeferences are to pages. 
 
 Fitzhugh V. Fmnpo-Texan Land Co. 
 
 (81 Tex. 306), 379, 632. 
 Fitgpatrick v. Moaie (53 Ark. 4), 300. 
 Flagg V. MawsoD (8 Gray, 556), 416. 
 Flagler v. Wheeler (40 Hun, 129), 511. 
 Flaherty v. Powers (167 Mass. 61), 531, 
 
 681. 
 Flandeau v. Downey (23 Cal. 354), 47, 
 
 123. 
 Flanders v. Chicago, St P., M. & O. 
 
 E. Co. (51 Minn. 193), 387, 
 Flanders v. Fay (40 Vt 316), 334 
 Flannery v. Van Tassell (131 N. Y. 
 
 649, 43 N. Y. State Rep. 324), 519. 
 Fleischman v. Stern (90 N. Y. 110), 61, 
 
 64. 
 Fleischinann v. Toplits (134 N. Y. 349, 
 
 47 N. Y. State Rep. 892, 46 Alb. 
 
 L. J. 470), 715. 
 Fleming v. MoClaflHn (1 Ind. App. 
 
 537), 585. 
 Fleming v. People (27 N. Y. 329), 397. 
 Fleming v. Springfield (154 Mass. 520), 
 
 501. 
 Fleshman v. Collier (47 Ga. 233), 408. 
 Fletcher v. Arkansas Nat. Bank (63 
 
 Ark. 265), 440. 
 Fletcher v. Boston, etc. R. Co. (1 Allen, 
 
 9), 31. 
 Fletcher v. Braddyll (3 St 64), 230. 
 Fletcher V. Cashee (33 Me. 587), 313. 
 Fletcher v. Fuller (130 U. S. 534), 9. 
 Floyd V. Howard (6 Watts & Serg. 75), 
 
 706. 
 Floyd V. State (.30 Ala. 511), 697. 
 Floyd V. State (83 Ala. 16), 476. 
 Floyd V. Tewksbury (139 Mass. 362), 
 
 446. 
 Floytrup v, Boston & M. R. Co. (163 
 
 Mass. 153), 385. 
 Flynn v. Coffee (12 Allen, 133), 438, 
 
 629; 
 Fiynn v, Massachusetts Ben, Ass'n 
 
 (152 Mass. 388), 360. 
 Flynn v. McKeon (6 Duer, 303), 58. 
 Flynn v. St Louis & S. E. Co. (43 Mo. 
 
 App. 424), 611. 
 Fogus V. Chicago & A. R. Co. (50 Mo. 
 
 App. 350), 351. 
 Foley V. State (43 Neb. 333), 182. 
 
 Forbash v. Goodwin (35 N, H. 425),; 
 
 330. 
 Ford V. Angelrodt (37 Mo. 50), 315. 
 Ford V. Babcock (3 Sandf. 518), 346. 
 Ford V. Illinois R. Co. (40 111. App. 
 
 222), 537. 
 Ford T. Simmons (13 La. Ann. 397), 
 
 602. 
 Forde v. Nichols. (36 N. Y. State Rep. 
 
 739), 543. 
 Fordyce v. McCants (51 Ark. 509), 486. 
 Forney v. Ferrell (4 W. Va. 729), 214. 
 Forrester v. State (46 Md. 154), 413. 
 Forsyth v. Clark (21 N. H. 424), 628. 
 Forsyth v. Gansom (5 Wend. 558), 314. 
 Fort V. Gooding (9 Barb. 371). 370. 
 Fort Payne Coal & S. Co. v. Webster 
 
 (163 Mass. 134), 214. 
 Fort Worth & D. C. R. Co. v. Great- 
 house (83 Tex. 104), 533, 539. 
 Fort Worth & D. C. R. Co. v. Thomp- 
 son (75 Tex. 501), 543. 
 Fort Worth Pub. Co. v. Hetson (80 
 
 Tex. 316, 334), 487. 
 Fortesque v. Crawford (105 N. C. 29), 
 
 318. 
 Forward v, Adams (7 Wend. 204), 4a 
 Forward v. Harris (30 Barb. 338), 245. 
 Fosoue V. Lyon (55 Ala. 440), 189. 
 Foss V. Hildreth (10 Allen, 76, 83), 
 
 303. 
 Fqssdahl v. State (89 Wis. 482), 76. -^ 
 Foster v. Clifford (44 Wis. 569), 314 
 Foster v. Dickerson (64 Vt 233), 389, 
 
 540, 544 
 Foster v. Foster (63 N. H. 532), 685. 
 Foster v. Hall (12 Pick. 89), 88. 
 Foster v. Hawley (8 Hun, 68), 398. 
 Foster v. People (8 Am. L. Reg., N. S., 
 
 494), 145. 
 Foster v. Pierce (11 Cush. 437), 76. 
 Foster v. Shaw (7 S. & R. 156, 163), 
 
 475. 
 Foster v. State (88 Ala. 182), 247. 
 Fougue V. Burgess (71 Mo. 388), 412. 
 Fournal v. Duver (2 Rev, de Leg. 279), 
 
 574 
 Fountain v. Linn (57 N. J. L. 503), 163. 
 Foval V. Foval (39 111. App. 644), 12. 
 Fowls V. Park (48 Fed Rep. 789), 188. 
 
TABLE OF OASES. 
 
 Ixxv 
 
 JRe/creTiccs are to pages. 
 
 Fowler v. Fowler (33 N. Y. State Rep. 
 
 746), 105. 
 Fowler v. Simpson (79 Tex. 611), 507. 
 Fox V. Com. (81 Pa. St 511), 187. 
 Fox V. McComb (63 Hun, 633, 45 
 
 N. Y. State Rep. 754), 336. 
 Fox V. Peninsular Co. (84 Mich. 676), 
 
 573. 
 Fox V. Village of Fort Edward (48 
 
 Hun, 363, 16 N. Y. State Rep. 303, 
 
 131 N. Y. 666), 562. 
 Foxhall V. International Land Credit 
 
 Co. (16 L. T., N. S., 637), 288. 
 Foye V. Leighton (23 N. H. 71', 287. 
 Frace v. New York, L. E. & W. R. 
 
 Co. (68 Hun, 325, 53 N. Y. State 
 
 Rep. 103), 527. 
 Fralick v. Presley (29 Ala. 457), 709. 
 Framingham Manuf. Co. v. Barnard 
 
 (2 Pick. 532), 456. 
 Franc v. Dickinson (125 N. Y. 710), 
 
 366. 
 Francis v. Francis (150 Pa. St 644), 
 
 631. 
 Francis v. New York Steam Co. (114 
 
 N. Y. 380, 1 N. Y. State Rep. 261), 
 
 535. 
 Frank v. Lilienfield (33 Gratt 393), 
 
 313. 
 Franklin v. Baker (48 Ohio St 296, 29. 
 
 Am. St Rep. 547), 644. 
 Franklin Bank v. Stewart (37 Me. 
 
 519), 209. 
 Frantz v. Ireland (66 Barb. 383), 646. 
 Frasier v. Sneath (3 Nev. 130), 320. 
 Fratini v. Caslini (62 Vt 273), 106. 
 Fray v. Blackburn (3 B. & S. 576, 
 
 578, n.), 604. 
 Frazer v. Tupper (29 Vt 409), 534. 
 Freare v. Evertson (20 Johns. 142), 
 
 508. 
 Frederick v. Winans (51 Wis. 472), 
 
 313. 
 Freedraan's Sav. & T. Co. v. Dodge 
 
 (93 U. S. 379), 513. 
 Freeman v. Brewster (93 Ga. 648), 89. 
 Freeman v. Cooke (3 Ex. 661), 120, 
 Freeman v. Ellison (18 Alb. L. J. 210, 
 
 37 Mich. 459), 53. 
 Freeman v. Phillips (4 M. & S. 486), 
 
 418, 433. 
 
 Freeman v. Sanderson (133 Ind. 364), 
 
 558. 
 Freeman v. Thayer (33 Me. 76), 650. 
 Freemont Cultivator Co. v. McCanny 
 
 (80 Ga. 343), 633. 
 Freemont & E. M. V. R. Co. v. French 
 
 (48 Neb. 638), 609. 
 Freiberg v. Brunswick-Balke-CoUen- 
 
 der Co. (Tex. App., 16 S. W. Rep. 
 
 784), 496. 
 Freiberg v. Freiberg (74 Tex. 123), 530. 
 French v. French (91 Iowa, 59), 162. 
 French v. Howard (14 Ind. 455), 113. 
 French v. Shotwell (5 Johns. Ch. 555), 
 
 116. 
 French v. State, 93 Wis. 325), 488. 
 French v. White (5 Duer, N. Y., 354), 
 
 15. 
 Frese v. State (23 Fla. 267), 183, 187, 
 Freusch v. Ottenburg (54 Fed. Rep. 
 
 867), 677. 
 Frick V. Taylor (94 Ga. 683); 51. 
 Frier v. Delaware & H. Canal Co. (86 
 
 Hun, 464, 67 N. Y. State Rep. 
 
 541), 18. 
 Fries' Case (Wharton's St Tr. 483, 
 
 585), 386. 
 Friese v. Krippe (70 111. 496), 344. 
 Friess v. N. Y. C. & H. R. R Co. (67 
 
 Hun, 205, 51 N. Y. State Rep. 
 
 391), 553. 
 Fritz V. Brandon (78 Pa. St 343), 646. 
 Frolic V. Morse (15 Wash. 636). 678. 
 Frome v. Dennis (45 N. J. 515), 485. 
 Frost V. Blanchard (97 Mass. 155), 334. 
 Frost V. Wolf (77 Tex. 455), 353. 
 Fry V. Bennett (3 Bosw. 200), 706. 
 Fry V. Feemster (36 W. Va. 454), 513. 
 Fry V. Stovers (92 Va. 13), 457. 
 Fudge V. Payne (85 Va. 17), 334. 
 Fulcber v. Mandell (83 Ga. 715), 151. 
 Fuloher v. State (28 Tex. App. 452, 
 
 465), 504, 583. 
 Fulger v. Bothe (43 Mo. App. 44), 610. 
 Fullam V. Rose (181 Pa. St 138), 576. 
 Fuller V. Board, etc. (2 Kan. 445), 67. 
 Fuller V. Coats (18 Ohio St 343, 350), 
 
 607. 
 Fuller V. Jackson (93 Mich. 197), 538. 
 Fuller V. Smith (5 Jones, N. C, Eq. 
 
 193), 111. 
 
ixxvi 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 FuUerton v. Hill (48 Kan. 558), 310. 
 Fulton V. Bank (92 Pa. St. 112), 706. 
 Fulton's Estate (178 Pa. St. 78), 468. 
 Fulton Bank v. Stafford (3 Wend. 
 
 483), 709. 
 Funderberg v. State (33 Tex. App. 393), 
 
 15. 
 Funk V. Ely (45 Pa. St. 444), 465. 
 Furguson v. Rafferty (128 Pa. St. 37), 
 
 396. 
 Furniss v. Ferguson (34 N. Y. 485), 
 
 116. 
 Fussell V. State (93 Ga. 450), 14. 
 Fusting V. Sullivan (41 Md. 163, 169), 
 
 163. 
 
 G. 
 
 Gable v. Haines (83 Iowa, 457), 158. 
 Gaffield v. Scott (40 111. App. 380), 400. 
 Gaflfney v. Colvill (6 Hill, 567), 345. 
 Gaffney v. People (50 N. Y. 416, 433), 
 
 34. 
 Gage V. Bissell (119 III. 398), 63. 
 Gage V. Fisher (31 L. R. A. 551, 5 N. D. 
 
 297), 363. 
 Gage V. Gandy (141 111. 215), 119. 
 Gage V. Myers (59 Mich. 300), 388. 
 Gage V. Nichols (135 111. 128), 602. 
 Gainer v. Cotton (49 Tex. 101), 447. 
 Gaines v. New Orleans (6 Wall. 707), 
 
 398, 633. 
 Gainesville, H. & W. R. Co. v. Hall (78 
 
 Tex. 169), 684. 
 Galbraith v. Bridges (168 Pa. St. 335), 
 
 333. 
 Gallagher v. Brewster (153 N. Y. 364), 
 
 461. 
 Gallagher v. Market R Co. (67 Cal. 13), 
 
 573. 
 Gallagher v. People (39 111. App. 401), 
 
 586. 
 Gallagher v. Procter (84 Me. 41), 606. 
 Gallatin Nat. Bank v. Nashville, Chat- 
 tanooga, etc. R. Co. (4 N. Y. State 
 
 Rep. 714), 63. 
 Gallup V. Lederer (1 Hun, 382), 287. 
 Galpin v. Page (18 Wall. 364), 603. 
 Galveston, H. & S. A. R. Co. v. Cooper 
 
 (85 Tex. 431), 537. 
 
 Galveston Rope & T. Co. v. Barkett (2 
 
 Tex. Civ. App. 361), 550. 
 Galvin v. Meridian Nat Bank (139 Ind. 
 
 439), 617. 
 Galway's Appeal (34 Pa. St. 342), 321. 
 Ganahl v. Shore (34 Ga. 17), 464. 
 Ganaird v. Rochester City & B. R Co. 
 
 (50 Hun, 23, 131 N. Y. 661, 18 N. Y. 
 
 State Rep. 693), 534. 
 Gano V. Heath (36 Mich. 441), 315. 
 Ganson v. Madigan (15 Wis. 544), 393. 
 Ganton v. Size -(22 Q. B., U. C, 473), 
 
 456. 
 Gardere v. Columbian Ins. Co. (7 
 
 Johns. 514), 234. 
 Gardner v. Brookline (127 Mass. 358), 
 
 688. 
 Gardner v. Crenshaw (133 Mo. 79), 7. 
 Gardner v. Frieze (16 R. I. 19), 521. 
 Gardner v. Grannis (57 Ga, 539), 447. 
 Gardner v. Irwin (4 Ex. D. 49), 91. 
 Gardner v. Watson (76 Tex. 35), 278. 
 Gardner v. Wright (15 L. T,, N, S., 
 
 335), 249. 
 Garland v. Jacomb (L. R 8 Ex. 316), 
 
 130. 
 Game v. Fite (93 Ala. 405), 330. 
 Garner v. Cook (30 Ind. 331), 124. 
 Garner v. Providence Second Nat 
 
 Bank (151 U. S. 920), 655. 
 Garner v. State (28 Tex. App. 561), 529. 
 Gai-nsey v. Rhodes (138 N. Y. 461), 708. 
 Garrells v. Alexander (4 Esp. 37), 578. 
 Garrett v. Belmont Land Co. (94 Tenn. 
 
 459), 441. 
 Garrett v. Heflin (98 Ala. 615), 369. 
 Garrigus v. Home F. & F. Mis. Sbc. 
 
 (3 Ind. App. 91), 616. 
 Garrison v. Blanton (48 Tex. 299), 557, 
 
 588. 
 Garvey v. Fowler (6 Duer, 587), 53. 
 Garwood v. Hassings(38 Cal. 239), 629. 
 Garwood v. N. Y. C. & H. R. R Co. 
 
 (45 Hun, 128), 533. 
 Gasper v. Heinbach (53 Minn. 414), 
 
 807. 
 Gassert v. Noyes (18 Mont. 216), $63. 
 Gates V. Chicago & A. R Co. (44 Mo. 
 
 App. 488), 537. 
 Gates V. People (14 111. 433), 217. 
 
TABLE OF CASES. 
 
 Ixxvii 
 
 JReferences are to pages. 
 
 Gaverly v. McOwen (133 Mass. 574), 
 
 45, 68. 
 Gavin v. BischoflE (80 Iowa, 605), 150. 
 Gay V. Smith (38 N. H. 171), 116. 
 Gay V. Southworth (113 Mass. 333), 
 
 600. 
 Geary v. Meagher (33 Ala. 630), 389. 
 Gebhart v. Skinner (15 Serg. & Rawle, 
 
 235), 138. 
 Gehr v. Fisher (143 Pa. St 311), 432, 
 
 478. 
 Geisinger v. Beyl (80 Wis. 443), 623. 
 Geissmau v. Wolf (46 Hun, 389), 153. 
 General Assembly of Presbyterian 
 Church V. Guthrie (Va., 6 L. R 
 A. 331), 393. 
 Genet v. Ketcham (63 N. Y. 626), 87. 
 Genet v. Sawyer (91 Barb. 211), 155. 
 Genett v. Delaware & H. C. R Co. 
 (123 N. Y. 505, 34 N. Y. State Rep. 
 246), 331. 
 Gent V. Garvin (1 Gray, 148), 465. 
 Gentry v. Kelley (49 Kan. 83), 558, 
 
 561. 
 Genz V. State (58 N. J. L. 482), 553. 
 Geoghegan v. Atlas Steamship Co. (51 
 N. Y. State Rep. 868, 16 Daly, 
 229), 353. 
 George v. Jay (19 N. II. 544), 470. 
 George v. Thomas (16 Tex. 74), 490. 
 George H. Ketcham & Co. v. Taylor 
 
 (14 N. Y. State Rep. 398), 166. 
 Georgia P. R Co. v. Davis (92 Ala. 
 
 300), 610. 
 Georgia P. R Co. v. Gaines (88 Ala. 
 
 377), 188. 
 Georgia P. & R Co. v. Hughart (90 
 
 Ala. 36), 611. 
 Georgia R & B. Co. v. Eskew (86 Ga. 
 
 641), 559. 
 Georgia R R Co. v. Love (91 Ala. 
 
 431), 609. 
 Gerard v. Cowperthwait (50 N. Y. 
 
 State Rep. 593), 301. 
 Gerber v. Gerber (155 111. 319J, 47. 
 Gerber v. Metropolitan El. R Co. (53 
 
 N. Y. State Rep. 444), 677. 
 Gerbig v. N. Y., L. E. & W. R. Co. (67 
 Hun, 649, 51 N. Y. State Rep. 
 534), 551. I 
 
 Gerding v. Walter (29 Mo. 426), 638. 
 Geresche v. McDonald (103 Mo. 1), 
 
 620. 
 German Am. Bank v siode (73 N. Y. 
 
 State Rep. 427), 155. 
 German Bank v. American F. & M. 
 
 Ins. Co. (83 Iowa, 491), 641. 
 German Nat. Bank v. Elwood (16 
 
 Colo. 244), 603. 
 Gerraania Bank v. Distler (11. N. Y. 
 
 S. C, 633), 316. 
 Gerow v. Providence-Wash. Ins. Co. 
 
 (38 N. Y. 435), 585. 
 Gerrish v. Sweetzer (4 Pick. 374), 138. 
 Gerry v. Post (13 How. Pr., N. Y., 
 
 118), 630. 
 Gery v. Rodman (1 Q. B. D. 161), 457, 
 
 459. • 
 
 Gettleman v. Gitz (78 Wis. 429), 601. 
 Geveke v. Grand Rapids & U. R Co. 
 
 (57 Mich. 589), 539. 
 Gibbons ^'. Phoenix (39 N. Y. State 
 
 Rep. 658), 568. 
 Gibbs V. Lindsley (13 Vt. 208), 25. 
 Gibney v. Marchay (34 N. Y. 301), 508. 
 Gibson v. Clark (1 Jac. & W. 159), 
 
 647. 
 Gibson v. Kelley (15 Mont 417), 40, 63. 
 Gibson v. J. Snow Hardware Co. (94 
 
 Ala. 346), 496. 
 Gibson v. Small (4 H. L. C. 353), 608. 
 Gibson v. State (89 Ala. 131), 361, 667. 
 Gibson v. Tobey (46 N. Y. 637), 371. 
 Gibson v. Trinity County (80 Cal. 359), 
 
 255, 478. 
 Gibson v. Warden (14 Wall. 244), 409. 
 Gifford V. Thomas (C3 Vt 342), 153, 
 
 159. 
 Gilbert v. Whidden (20 Me. 368), 407. 
 Gilchrist v. Brooklyn Grocers' Mfg. 
 
 Ass'n(59N. Y. 495), 465. 
 Gilchrist v. Martin (1 Bailey Eq., S. C, 
 
 492), 456. 
 Gildersleeve v. Carway (10 Ala.' 260), 
 
 476. 
 Gildersleeve v. Landon (73 N. Y. 609), 
 
 63. 
 Giles V. Morrow (1 Ont Rep. 537), 638. 
 Gill V. Cubitt (3 Barn. & Cres. 466X 
 363. > 
 
Ixxviii 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Gill V. Homrighausen (79 Wis. 634), 
 
 610. 
 Gill V. Pilkey (53 Ohio St. 258), 334. 
 Gillet V. Roberts (57 N. Y. 28), 359. 
 Gillies V. Kreuder (102 N. Y. 6G6), 163. 
 Gillies V. Smither (2 Stark. 528), 835. 
 Gillingliam v. Charlestown Towboat 
 & T. R. Co. (40 Ved. Rep. 649), 207. 
 Gillis V. Wilmington, O. & R. C. R. 
 
 Cp. (108 N. C. 441), 340. 253. 
 Gillispie v. Krator (56 Fed. Rep. 203), 
 
 469. 
 Gilman v. Footo (22 Iowa, 560), 114. 
 Oilman v. Gilman (126 Mass. 26), 116. 
 Gilman v. Riopelle (18 Micb. 145), 239. 
 Gilman v. Sheets (78 Iowa, 499), 633. 
 Gilmore v. Wilson (53 Pa. St, 194), 
 
 463. 
 Girard v. Bradstf eet (4 Rev. Leg. 276), 
 
 121. 
 Girard v. Kalamazoo (93 Mich. 610), 
 
 501, 563. 
 Glain v. Younglove (27 Barb. 480), 899. 
 Glass V. Beach (5 Vt 73), 475. 
 Glasscock v. Rand (14 Mo. 550), 314. 
 Glazer v. Mason (24 Mo. App. 321), 
 
 557. 
 Gleador v. Atkins (1 C. & M. 423), 456. 
 Glen V. Cora. (42 Ind. 60), 140. 
 Glen V. Davis (2 Grant's Cases, Pa., 
 
 153), 113. 
 Glen V. Leggett (47 Fed. Rep. 473), 94, 
 
 375. 
 Glessner v. Patterson (164 Pa. St. 334), 7. 
 Glidden v. Chamberlain (167 Mass. 
 
 486), 134, 314. 
 Glieson v. Virginia M. & R. Co. (UO 
 
 U. S. 435, 44 Alb. L. J. 33), 609. 
 Globe Printing Co. v, Stahl (23 Mo. 
 
 App. 451), 187, 521. 
 Glover v. Manhattan Ry Co. (51 N. Y. 
 
 Super. Ct. 1), 531. 
 Glunston v. Griggs (5 Ga. 434), 302. 
 Glynn v. George (20 N. H. 114), 130. 
 Goddard v. Benson (15 Abb. Pr., N. Y., 
 
 191), 114. 
 
 Goddard v. Garner (109 Ala. 98), 56.3. 
 
 Godine v. Kidd (46 Alb. L. J. 171, 48 
 
 N. Y. State Rep. 813, C4 Hun, 585, 
 
 39 Abb. N. C, N. Y., 36), 149, 153. 
 
 Goldensen v. Lawrence (73 N. Y. Sts^te 
 
 Rep. 664), 7. 
 Golding V. Orcutt (44 Vt. 541), 468. 
 Goldrick v. Willetts (53 N. Y. 612), 40. 
 Goldy V. McDonald (78 III. 605), 625. 
 Gomraersall v. Crew (31 N. y. State 
 
 Rep. 555), 129. 
 Gonzalis v. State (31 Tex. Cr. Rep. 
 
 508), 246. 
 Good V. Martin (95 U. S. 95), 311, 
 
 313. 
 Good Bow V. People (160 111. 438), 670, 
 
 701. 
 Goodall V. State (1 Oreg. 333), 453. 
 Goodbar v. City Nat Bank (78 Tex. 
 
 461), 497. 
 Goodhart v. Pennsylvania E. Co. (177 
 
 Pa. St. 1), 683. 
 Gooding v. Underwood (89 Mich 187), 
 
 132. 
 Goodlett V. Kelley (74 Ala. 215), 475. 
 Goodman v. Goetz (36 N. Y. State Rep. 
 
 731), 409. 
 Goodman v. Goodman (38 L. J. C. 745), 
 
 434. 
 Goodman v. Harvey (4 Ad. & E. 870), 
 
 365. 
 Goodric;h v. Weston (103 Mass. 862), 
 
 239. 
 Goodright v. Moss (3 Cowp. 591, 594), 
 
 431, 433. 
 Goodsen v. Brothers (111 Ala. 589), 413. 
 Goodwin v. Baldwin (59 Ala. 127), 598. 
 Goodwin v. Hirsch (38 N. Y. Super. 
 
 Ct. 503), 165. 
 Goodwin v. .lack (62 Me. 414), 446. 
 Goodwin v. McCoy (13 Ala. 271), 314. 
 Goodyear v. De La Vergne (10 Hun, 
 
 537), 63. 
 Gord V. Needs (8 M. & W. 139), 281. 
 Gorder v. Plattsmouth Canning Co. 
 (36 Neb. 37, 41 Am. & Eng. Corp. 
 Cas. 87), 362. 
 Gordon v, Bowers (16 Pa. St 336), 413. 
 Gordon v. Niemann et al. (118 N. Y. 
 153, 38 N. Y. State Rpp. 616), 318. 
 Gordon v. Price (10 Ired. L. 385), 572. 
 Gordon v. Woodward (44 Kan. 758), 
 
 559. 
 Gorman v. Canton (5 Me. 366), 487. 
 
TABLE OF CASES. 
 
 Ixxix 
 
 Beferences are to pages. 
 
 Gorman v. Minn. & St L. R. Co. (78 
 
 Iowa, 509), 255, 477, 497. 
 Gormley V. Bunyan (138 U. S. 623), 
 
 181. 
 Gosliag V. Birnie (7 Bing. 339), 120. 
 Gott V. Dinsmore (111 Mass. 51), 381. 
 Gough V. Bell (31 N. J. L. 156), 654. 
 Gould V. Chase (16 Johns. 226), 638. 
 Gould V. Mr.ish (1 Hun, 566), 364 
 Goulding V. Clark (34 N. H. 148), 376, 
 
 604. 
 Gouldsmith v. Coleman (57 Ga. 425), 
 
 121. 
 Gourley v. St. Louis & S. F. R Co. 
 
 (35 Mo. App. 87), 545. 
 Govin V. De Miranda (140 N. Y. 474), 
 
 4G0. 
 Goza V. Browning (96 Ga. 421), 57.'). 
 Grace v. Derapsey (75 Wis. 313), 42. 
 Grace v. Lynch (80 Wis. 166), 320. 
 Gracia v. De Satruslique (4 Cal. 244), 
 
 68. 
 Grafton Bank v. Moore (14 N. H. 145), 
 
 408. 
 Gragg V. Learned (109 Mass. 167), 885. 
 Graham v. Anderson (42 111. 514), 186. 
 Graham v. Fidelity Mut. L. Ass'n (98 
 
 Tenn. 48), 699. 
 Graham v. McReynolds (90 Tenn. 673), 
 
 25. 
 Graham v. Pennsylvania Co. (139 Pa. 
 
 St 149), 53.5, 549. 
 Graham v. State (28 Tex. App. 582), 
 
 529, 588. 
 Graham v. Williams (21 La. Ann. 594), 
 
 95. 
 Grahlman v. Chicago, St. P. & K. C. 
 
 R. Co. (78 Iowa, 664), 546. 
 Grange Mill Co. v. Western Ass'n Co. 
 
 (118 IlL 396), 66. 
 Granning v. Swenson (49 Minn. 381), 
 
 33. 
 Grant v. Coal Co. (80 Pa St 308), 838. 
 Grant v. Grant (109 N. C. 710), 600, 615. 
 Grant v. Henry Clay Co. (80 Pa. St 
 
 208), 481. 
 Grant v. State (89 Ga. 893), 181. 
 Grant v. Walsh (145 N. Y. 503), 367. 
 Gi-iattaa v. Met Life Ins. Co. (80 N. Y. 
 
 281), 96. 
 
 Graveley v. Graveley (35 S. C. 1, 60 
 
 Am. Rep. 478), 396. 
 Graves v. Battle Creek (95 Mich. 366), 
 
 359. 
 Graves v. Blondell (70 Me. 190), 133. 
 Graves v. Harwood (9 Barb. 477), 319, 
 
 330. 
 Graves v. King (15 Hun, 367), 158. 
 Graves v. Merchants' & B. Ins. Co. (82 
 
 Iowa, 637), 681. 
 Graves v. Spedden (46 Ind. 527, 533), 
 
 269. 
 Graves v. United States (150 U. S. 118), 
 
 603. 
 Graves v. Wood (3 B. Mon., Ky., 84), 
 
 371. 
 Gray v. Bond (2 B. & B. 667), 647. 
 Gray vr Cruin (36 Ala. 559), 603. 
 Gray v. Gray (39 N. J. Eq. 511), 104. 
 Gray v. Manhattan B. Co. (128 N. Y. 
 
 499, 40 N. Y. State Rep. 478), 586. 
 Gray v. Shephard (147 N. Y. 177, 69 
 
 N. Y. State Rep. 530), 380. 
 Great Western R Co. \. Bacon (30 111. 
 
 347, 352), 340. 
 Great Western Tel. Co. v. Loewenthal 
 
 (154 III. 261), 297. 
 Great Western T. Co. v. Loomis (33 
 
 N. Y. 127), 83. 
 Green v. Green (126 Mo. 35), 148. 
 Green v. Louisville & N. R Co. (14 
 
 Ky. L. Rep. 876), 255. 
 Green v. Riigely (33 Tex. 539), 643. 
 Green v. Skeel (9 N. Y. S. C, 8 Hun, 
 
 486), 317. 
 Green v. State (97 Tenn. 50), 531. 
 Green v. State (88 Tenn. 614), 626. 
 Green v. Tower (49 Kan. 302), 60a 
 Green v. Warnick (64 N. Y'. 334), 875. 
 Green et al. v. Roworth et al. (113 
 
 N. Y. 463, 23 N. Y. State Rep. 149), 
 
 369. 
 Greene v. Greene (43 Neb. 634), 369. 
 Greenfield v. Camden (74 Me. 56), 636. 
 Greenfield v. Massachusetts L. Ins. 
 
 Co. (47 N. Y. 430), 67. 
 Greenfield v. People (85 N. Y. 75), 204, 
 
 534. 
 Greenfield F. Nat Bank v. Coffin (163 
 
 Mass. 180), 378, 684. 
 
Ixxx 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Greenlief v. Dubuque, etc. E. Co. (30 
 
 Iowa, 301), 427. 
 Greenough v. Eccles (28 L. J. C. P. 
 
 160), 30. 
 Greenough v. Smeed (3 Ohio St. 415), 
 
 312. 
 Greenshields v. Crawford (9 M. & W. 
 
 314), 229. 
 Greenwood v. Lowe (7 La. Ann. 197), 
 
 657. 
 Greer v. Greer (58 Hun, 251, 34 N. Y. 
 
 State Rep. 448), 93. 
 Gregg V. Forsyth (24 How., U. S., 179), 
 
 440. 
 Gregory v. Fichtner (38 N. Y. State 
 
 Rep. 192, 43 Alb. L. J. 517, 27 
 
 Abb. N. C. 86), 176, 179, 681. 
 Gregory v. Howard (3 Esp. M3), 130. 
 Gregory v. Tavener (6 C. & P. 280), 
 
 281), 699. 
 Grellier v. Neale (Peake, 147), 329. 
 Greneaux v. Wheeler (6 Tex. 515, 536), 
 
 813, 363. 
 Gress Lumbei; Co. v. Coody (94 Ga. 
 
 519), 273. 
 Gretz V. Fitchburg R. Co. (127 Mass. 
 
 77), 28. 
 Grierson v. Mason (60 N. Y. 394), 297, 
 
 324, 330. 
 Gries v. Blaokman (30 Mo. App. 2), 
 
 129. 
 Griesheimer v. Tannenbaum (124 N. Y. 
 .650, 36 N. Y. State Rep. 329), 467. 
 Griffin v. Long Island R. Co. (101 
 
 N. Y. .348), 42. 
 Griffin v. MuUey (167 Pa. St. 339), 646. 
 Griffin v. Rice (1 Hilt. 184), 389. 
 Griffin v. State (78 Ala. 29), 505. 
 Griffith V. Baltimore & O. R. Co. (44 
 
 Fed. Rep. 574), 610. 
 Griffith V. Harriman (74 Iowa, 436), 61. 
 Griffith T. Rife (73 Tex. 185), 425. 
 Griffith V. Shipley (74 Md. 591), 16. 
 Griffith V. Utica & M. R Co. (63 Hun, 
 
 626, 43 N. Y. State Rep. 835), 568. 
 Griffith V. Wright (6 Colo. 248), 132, 
 Griffiths V. Sauls (77 Tex. 630), 448. 
 Griggs V. Griggs (66 Barb. 291, 300), 
 
 59. 
 Grimes v. Bastrop (36 Tex. 310), 648. 
 
 Grimes v. Hill (15 Colo. 359), 519. 
 Grimley v. Hankins (46 Fed. Rep. 400), 
 
 608. 
 Grimm's Appeal (131 Pa. St. 199), 398, 
 
 621. 
 Grimstead v. Foote (26 Miss. 476), 603. 
 Griswold v. N. Y. C. & H. R R. Co. 
 
 (23 N. Y. State Rep. 729, 115 N. Y. 
 I. 61), 571. 
 Griswold v. N. Y. C. & H. R R Co. 
 
 (44 Hun, 336), 540. 
 Groetzinger v. Kaun (165 Pa. St 578), 
 
 585. 
 Grose V; West (7 Taunt. 39), 654. 
 Grossman v. Supreme Lodge of K & 
 
 L. of H. (25 N. Y. State Rep. 843), 
 
 96. 
 Grout V. Chamberlain (4 Mass. 613), 
 
 114. 
 Guebert v. Ziok (31 111. App. 390), 
 
 520. 
 Guest V. Guest (74 Tex. 664), 518. 
 Guichard v. Brande (57 Wis. 554), 133. 
 Guidery v. Green (95 Cal. 630), 301. 
 Guild's Case (5 Halst 163), 217. 
 Gulerette v. McKinley (37 Hun, 320, 
 
 333), 304, 531. 
 Gulf, C. & S. F. R. Co. V. Bax (81 Tex. 
 
 670), 622. 
 Gulf, C. & S. F. R Co. V. Compton (75 
 
 Tex. 667), 543. 
 Gulf, C. & S. F. R Co. V. Dunraan (85 
 
 Tex. 177), 682. 
 Gulf, C. & S. F. R Co. V. Ellis (54 Fed. 
 
 Rep. 481), 197. 
 Gulf, C. & S. F. R Co. V. Harriott (80 
 
 Tex. 73), 568. 
 Gulf, C. & S. F. R Co. V. Hapner (83 
 
 Tex. 136), 537. 
 Gulf, C. & S. F. R Co. V. Hudson (77 
 
 Tex. 494), 360. 
 Gulf, C. & S. F. R Co. V. Locker (78 
 
 Tex. 279), 529. 
 Gulf, C. & S. F. R Co. V. Reed (80 Tex. 
 
 363), 645. 
 Gulf, C. & S. F. R Co. V. Riordan (85 
 
 Tex. 183, 16 Am. St Rep. 887), 850. 
 Gulf, C. & S. F. R Co. V. Washington 
 
 (4 U. S. App. 121, 49 Fed. Eep. 
 
 347), 189, 546. 
 
TABLE OF CASES. 
 
 Ixxxl 
 
 Beferences are to pages. 
 
 Gulf, C. & S. F. R. Co. V. Wilson (33 
 
 Am. St. Rep. 345), 497. 
 Gunn V. Pettigrew (93 Ga. 337), 148. 
 Gurley v. Part (135 Ind. 440), 93, 99. 
 Gurnault v. Louisville & H. R Co. (41 
 
 La. Ann. 571), 377. 
 Gurnsey v, Rhodes (138 N. Y. 461, 53 
 
 N. Y. State Rep. 6), 208. 
 
 Hackett v. People (54 Barb. 370), 455. 
 HackstafiE v. Hackstaff (82 Hun, 16), 
 
 173. 
 Hadcock v. O'Rourke (137 N. Y. 681), 
 
 580. 
 Haddock v. Woods (46 Iowa, 435), 816. 
 Hadjo V. Gooden (13 Ala. 718), 26. 
 Hadley v. Carter (8 N. H. 40), 487. 
 Hadsall v. Scott (36 Hun, 617), 154. 
 Haely v. People (163 III. 373), 493. 
 HafEron v, Cunningham (76 Tex. 313), 
 
 333. 
 Hagan v. Merchants' & B. Ins. Co. (81 
 
 Iowa, 321), 644. 
 Hagedorn v. Reid (3 Camp. 377), 337, 
 
 353. 
 Hagenlocher v. Coney Island & B. R. 
 
 Co. (99 N. Y. 136), 500. 
 Hager v. Cleveland (33 Md. 476), 479. 
 Hager v. Southern P. Co. (48 Cal. 309), 
 
 353. 
 Haggin v. Haggin (35 Neb. 375), 353. 
 Haight V. Keokuk (4 Clarke, Iowa, 
 
 199), 654. 
 Haile v. Morgan (35 S. C. 601), 513. 
 Haines v. Guthrie (13 Q. B. Div. 818), 
 
 439. 
 Haines v. Hay den (95 Mich. 333), 461. 
 Haines v. Pearce (41 Md. 321), 371. 
 Hair v. Johnson (35 111. App. 562), 362. 
 Haire v. Wilson (9 B. & 0. 643), 667. 
 Halcombe v. State (28 Ga. 66), 233. 
 Hale V. Taylor (45 N. H. 405), 697. 
 Hale V. Walker (31 Iowa, 344), 51. 
 Halferty v. Wilmering (112 U. S. 
 
 713), 68. 
 Halfin V. Winkleman (83 Tex. 165), 
 
 639. 
 Hall V. Allen (37 Ind. 541), 364. 
 
 Hall V. Ball (3 Scott, N. R. 577), 239. 
 Hall V. Brown (58 N. H. 93), 129. 
 Hall V. Chicago & C. R Co. (84 Iowa, 
 
 311), 39. 
 Hall V. Com. (97 Ky. 333), 454. 
 Hall V. Costello (48 N. H. 176), 564 
 Hall V. Gates (13 Met. 491), 465. 
 Hall V. German (131 N. Y. 536, 37 
 
 N. Y. State Rep. 330), 477. 
 Hall V. Lauderdale (46 N. Y. 70), 404. 
 Hall V. Manchester (40 N. H. 410), 335. 
 Hall V. Phelps (3 Johns. 451), 236. 
 Hall V. Richardson (89 N. Y. 636), 158. 
 Hall V. Roberts (63 Hun, 473), 151. 
 Hall V. Van Vranken (38 Hun, 403), 
 
 576. 
 Hall V. Young (37 N. H. 134), 400. 
 Hallahan v. N. Y, L. E. & W. R. Co. 
 
 (102 N. Y. 194). 485. 
 Hallura v. Dickinson (54 Ark. 311), 
 
 603. 
 Halpin v. Stone (78 Wis. 183), 300. 
 Halsey v. Sinsebough (55 N. Y. 485), 
 
 443, 462, 471. 
 Halstead v. Curtis (143 Pa. St. 352), 
 
 376. 
 Ham V. Ham (39 Me. 263), 189. 
 Ham V. Van Orden (84 N. Y. 257), 164. 
 Hambleton v. Central Ohio R R. Co. 
 
 (44 Md. 551), 125. 
 Hamburger v. Miller (48 Md. 325, 327), 
 
 312. 
 Hamburger v. Root (6 Watts & Serg. 
 
 431), 202. 
 Hamil v. State (90 Ala. 577), 455. 
 Hamill v. Supreme Council of R. A, 
 
 (152 Pa. St 537), 275. 
 Hamilton v. Holder (15 New Bruns. 
 
 222), 34. 
 Hamilton v. Moore (94 Ga. 707), 285. 
 Hamilton v. People (39 Mich. 174), 145. 
 Hamilton v. Vought (34 N. J. L. 190), 
 
 363. 
 Hamlin v. Burwell (75 Va. 551), 447. 
 Hamlin v. Dingmau (5 Lans. 610), 613. 
 Hammain v. Jordan (129 N. Y. 61, 41 
 
 N. Y. State Rep. 124), 14. 
 Hammond v. Bradstreet (10 Ex. 390), 
 
 419. 
 Hammond v. Dike (43 Minn. 263), 713. 
 
Ixxxii 
 
 TABLE OV OASES. 
 
 References are to pages. 
 
 Hammond v. Schultze(55 N. Y. Super. 
 
 Ct. 611), 165. 
 Hammond v. Varian (54 N. Y. 398), 
 
 573. 
 Hampden v. Levant (59 Me. 559), 396. 
 Hampton v. Deane (4 Tex. 455), 119. 
 Hampton v. Hampton (87 Va. 148;, 
 
 620. 
 Hampton v. McConnel (3 Wheat. 234), 
 
 111. 
 Hampton v. Pullman Palace Car Co. 
 
 (43 Mo. App. 134), 497. 
 Hamshaw v. Kline (57 Pa. St. 397), 
 
 633. 
 Hancock v. Cossett (45 Fed. Rep. 754), 
 
 262. 
 Hancock v. Flynn (54 Hun, 638), 466. 
 Hancock v. Hintrager (60 Iowa, 374), 
 
 465. 
 Hancock v. Tram Co. (65 Tex. 225), 
 
 201. 
 Hand v. Clearfield Consol. C. Co. (143 
 
 Pa. St. 408), 379. 
 Handy v. St. Paul Globe Pub. Co. (41 
 
 Minn. 198), 46, 50. 
 Hanford v. Fitch (41 Conn. 486), 646. 
 Hankenstein v. Vantine (153 N. Y. 
 
 20), 29. 
 Hanks v. Rhoads (138 111. 404), 706. 
 Hanley v. Gaudy (28 Tex. 211), 575. 
 Hanna v. Conn. Mut L. Ins. Co. (150 
 
 N. Y. 536), 439. 
 Hanna v. Kankakee (34 111. App. 186), 
 
 643, 645. 
 Hannis v. Hazlett (54 Pa. St. 139), 400. 
 Hannum v. Belohertown (19 Pick. 
 
 311), 102. 
 Hanrick v. State (134 Ind. 834), 554. 
 Hanscom v. Burmood (35 Neb. 504), 
 
 33. 
 Hanaee v. Mead (37 Hun, 162), 47. 
 Hanselman v. Dovel (103 Mich. 505), 
 
 144. 
 Hanson v. Chatovich (13 Nev. 395), 
 
 634. 
 Hanson v. Eustace's Lessees (2 How,, 
 
 U. S., 653, 708), 241. 
 Hanson v. Wolcott (19 Kan, 207), 116. 
 Hard v. Ashley (38 N. Y. State Rop. 
 
 601, 117 N. Y. 606), 177, 179, 
 
 Hard v. Ashley (63 Hun, 634, 44 N. Y. 
 
 State Rep. 792), 148, 461. 
 Hardenburgh v. Cookroft (5 Bailey, 
 
 N. Y., 79), 586. 
 Hardin v. Jordan (140 U. S. 341), 654. 
 Hardmnn v. Wilcox (9 Bing. 383), 120. 
 Hardy v. Beaty (84 Tex. 563, 31 Am. 
 
 St Rep. 80). 118, 603. 
 Hardy v. Merrill (56 N. H. 327), 525, 
 
 587. 
 Hardy's Case (24 How. St. Tr. 834), 
 
 473. 
 Hare v. Mahoney (61 Hun, 576, 37 
 
 N. Y. State Rep. 653), 549. 
 Harger v. Warrall (69 N. Y. 371), 313. 
 Hargro v. Hodgdon (89 Cal. 623), 424. 
 Harkins v. Cathay (119 N. C. 649), 600. 
 Harkness v. Boyd (5 Wend. 568), 706. 
 Harlan v. Howard (79 Ky. 373), 446. 
 Harlan v. Moore (164 111. 44), 301. 
 Ilarland v. Eastman (107 111. 535), 432. 
 Harley v. Buffalo Car Mfg. Co. (65 
 
 Hun, 624, 48 N. Y. State Rep. 58), 
 
 550. 
 Harley v. Hackett (72 Tex. 262), 165. 
 Harman v. Harman (70 Fed. Rep. 894, 
 
 34 U. S. App. 316), 332. 
 Harmon v. Columbia & G. R. Co. (32 
 
 S. C. 137), 546. 
 Harpending v. Schumaker (37 Barb. 
 
 270), 58. 
 Harper v. Dail (93 N. C.-394), 485, 
 Harpers v. Indianapolis, etc. R. Co. 
 
 (47 Mo, 507), 708. 
 Harrell v. Dorrance (9 Fla. 490), 331. 
 Harriman v. Stowe (57 Mo. 93), 485. 
 Harrington v. Lincoln (4 Gray, 563), 26. 
 Harrington v. Trembley (61 N. H. 
 
 432). 158, 162. 
 Harrington v. Winn (60 Hun, 335, 38 
 
 N. Y. State Rep. 83), 94. 
 Harris v. AlcOck (10 Gill & J., Md,, 
 
 236), 110, 
 Harris v. Allen (104 N. C. 86), 273, 
 Harris v. Cameron (81 Wis. 339, 45 
 
 Alb. L. J. 320), 188, 
 Harris v, Clark (3 N. Y. 93), 459. 
 Harris v. Detroit R. Co. (75 Mich, 327), 
 
 501. 
 Harris v, Dubb (57 Ga 77), 333. 
 
TABLE OF OASES. 
 
 Ixxxiii 
 
 References are to pages. 
 
 Harris V. Blliott'dO Pet. 25, 53), 654. 
 JHarris v. Hammond (18 How. Pr., N. 
 
 Y., 123), 116. 
 Harris v. Howard (56 Vt. 695), 499. 
 Harris v. Knickerbocker (5 Wend. 
 
 62«), 62. 
 Harris v. McArthur (90 Ga. 216), 200. 
 Harris v. McClanahan (11 Lea, 181), 
 
 118. 
 Harris v. Murphy (119 N. C. 34), 320. 
 Harris v. Nations (79 Tex. 409), 529. 
 Harris v. Oakley (130 N. Y. 1, 40 N. Y. 
 
 State Rep. 485), 512. 
 Harris v. Schuylkill River & S. R Co. 
 
 (141 Pa. St. 242), 684. 
 Harris v. Story (3 E. D. Smith, 363), 
 
 601. 
 Harris P. S. Co. v. Fisher (81 Mich. 
 
 136), 343. 
 Harrison v. Blades (3 Camp. 457), 441. 
 Harrison v. Cortauld (3 B. & Ad. 37), 
 
 315. 
 Harrison v. McCormiok (89 Cal. 327, 
 
 23 Am. St Rep. 469), 296. 
 Harrison v. Penny (86 Ga. 813), 171. 
 Harrison v. Queen's Ins. Co. (49 Wis. 
 
 71), 624. 
 Harrison v. Rowan (3 Wash. C. C. 
 
 580), 705. 
 Harrison v. Trustees, etc. (12 Mass. 
 
 456), 715. 
 Harrold v. N. Y. C. & H. R. R. Co. (13 
 
 Paly, 378), 540. 
 Harrow Spring Co. v. Whipple Har- 
 row Co. (90 Mich. 147), 334. 
 Hart V. Clark (64 Minn. 139), 603. 
 Hart V. Kendall (82 Ala. 144), 456. 
 Hart V. Ogdensburgh & L. C. R. Co. 
 
 (52 N. Y. State Rep. 799, 67 Hun, 
 
 556), 197. 
 Hart V. Powell (18 Ga. 635), 486. 
 Hart V. Randolph (142 III. 521), 508. 
 Hart V. State (55 Ind. 599), 189. 
 Hart V. Stephenson (25 Conn. 499, 
 
 506), 213. 
 Hart V. Washington Park Club (157 
 
 111. 9, 29 L. R A. 493, 48 Am. St. 
 
 Rep. 298), 350. 
 Harten v. Lyons (97 Tenn. 180), 518. 
 Hartford v. Champion (58 Conn. 268), 
 
 396. F 
 
 Hartford Bridge Co. v. Granger (4 
 
 Conn. 142), 128. 
 Hartshorn v. Chaddook (135 N. Y. 116, 
 
 47 N. Y. State Rep. 838), 686. 
 Hartwell v. Root (19 Johns. 345), 405. 
 Harvey v. Mitchell (2 M. & R. 366), 
 
 248. 
 Harvey v. Thornton (14 111. 217), 398. 
 Harvey v. Tyler (2 Wall. 333), 605. 
 Harwood v. Muley (8 Gray, 250), 465. 
 Harwood v. State (63 Ark. 130), 600. 
 Hasbrouck v. Burhans (47 Hun, 487, 
 
 120 N. Y. 667, 14 N. Y. State Rep. 
 
 355), 518. 
 Haskell v. Life Ass'n of America (13 
 
 N. Y. S. C. 153, 5 Hun, 151), 314. 
 Haskins v. Warren (115 Jlass. 514), 
 
 288. 
 Haskinson v. Elliott (63 Pa. St. 293), 
 
 409. 
 Hassan v. Klee (181 Pa. St 117), 646. 
 Hassleden v. Bradney (T. 4 Geo. Ill, 
 
 C. B.), 647. 
 Hastings v. Ryder (99 Mass. 623), 556. 
 Hatch v. Adams (8 Cowen, 35), 68. 
 Hatch V. Attrill (1 18 N. Y. 383, 29 N. Y. 
 
 State Rep. 14), 479. 
 Hates V. Stanton (1 Buer, 79), 110. 
 Hathaway v. Inhabitants of Addison 
 
 (48 Me. 440), 483. 
 Hauberger v. Root (G Watts & Serg. 
 
 431, 435), 314. 
 Hauer v. Patterson (84 Pa, St 375), 
 
 313. 
 Haulenbeck v. McGibbon (60 Hun, 36, 
 
 38 N. Y. State Rep. 653, 14 N. Y. 
 
 Supp. 393), 93. 
 Hauptman v. Catlin (1 E. D. Smith, 
 
 729), 467. 
 Hausenfluok's Case (85 Va. 702), 698. 
 Havens v. Shore Co. (47 N. J. Eq. 365), 
 
 446. 
 Hawes v. Colburn (165 Mass. 385), 701. 
 Hawes v. State (88 Ala.. 37), 15, 93. 
 Hawes v. Taver (161 111. 440), 300. 
 Hawes v. Woolcock (30 Wis. 213), 369. 
 Hawkes v. Salter (4 Bing. 715), 230. 
 Hawkins v. Commissioners (2 Allen, 
 
 254), 550. 
 Hawkins v. Front St Cable Co. (28 
 
 Am. St Rep. 72), 606. 
 
Ixxxiv 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Hawkins v. Grimes (13 B. Mon. 258), 
 
 574. 
 Hawley v. Middlebrook (38 Conn. 527), 
 
 122. 
 Haws V. Shaw (100 Mass. 187), 130. 
 Hay V. Miller (48 Neb. 156), 540. 
 Hay V. Reed (85 Mich. 396), 705. 
 Haydon v. Grill (43 Mo. App. 1), 175. 
 Hayes v. Barkans (67 Ind. 359), 214. 
 Hayes v. Baxter (65 Barb. 181), 410. 
 Hayes v. Ford (55 Ind. 52), 47. 
 Hayes v. People (25 N. Y. 396), 898. 
 Hayes' Succession (49 La. Ann. 742), 
 
 117. 
 Haynes v. Ledyard (33 Mo. 319), 709. 
 Hays V. Riddle (1 Sandf. 248, 251), 245, 
 
 347. 
 Hayward's Case (1 Sandf. 701, 704), 
 
 477. 
 Hazard v. Spencer (17 R I. 561), 617. 
 Hazelton v. Batohelder (44 N. H. 40), 
 
 133. 
 Hazer v. Streich (92 Wis. 505), 469. 
 Hazleton v. Union Bank (33 Wis. 34), 
 
 574. 
 Head v. Halfer (5 Rich. Eq., S. C, 
 
 128), 201. 
 Head v. Perry (1 T. B. Mon., Ky., 2S3), 
 
 114 
 Heald v. Cooper (8 Me. 83), 284. 
 Heald v. Thing (45 Me. 393), 571. 
 Heath v. Broadway, etc. R Co. (57 
 
 N. Y. Super. Ct 497, 29 N. Y. 
 
 State Rep. 367), 96, 108. 
 Heath v. Van Cott (9 Wis. 516), 311. 
 Heath v. Wallace (138 U. S. 573), 192. 
 Heddles v. Chicago Ry. Co. (77 Wis. 
 
 228), 33, 567. 
 Heffner v. Palmer (67 111. 161), 408. 
 Hefifron v. Brown (155 111. 323), 677. 
 Heidenheimer v. Bauman (84 Tex. 
 
 174, 31 Am. St. Rep. 29), 390. 
 Heidenheimer v. Johnson (76 Tex. 
 
 200), 456. 
 Height V. People (50 N. Y. 393), 718. 
 Heil V. Ridden (45 Kan. 562), 645. 
 Heir v. Grant (47 N. Y. 278), 163. 
 Heisey v. Rapho Tp. (181 Pa. St. 561), 
 
 413, 607. 
 Heller t. Peters (140 Pa. St. 648), 347, 
 
 655. 
 
 Hellis V. Filon (88 Hun, 485), 151. 
 Hellmuth v. Katschke (35 111. App. 
 
 21), 498. 
 Helm V. State (67 Miss. 563), 456. 
 Helyear v. Hawke (5 Esp. 72), 309. 
 Hemelreich v. Carlos (24 Mo. App. 
 
 364), 400. 
 Hemming way v. Smith (28 Vt 401), 88. 
 Hempstead v. Reed (6 Conn. 480), 238. 
 Henderson v. Anderson (3 How., IT. S., 
 
 73), 130. 
 Henderson v. Carbondale CoaJ, eta 
 
 Co. (140 U. S. 25), 340, 356. 
 Henderson v. Cargill (31 Miss. 367, 
 
 409), 433. ■ 
 Henderson v. Davidson (157 111. 379), 
 
 313. 
 Henderson v. Henderson (3 Denio, 
 
 314), 70. 
 Henderson v. Jones (10 S. & R 333), 
 
 35. 
 Henderson v. State (1 Tex. App. 432), 
 
 34. 
 Henderson v. Wanamaker (49 U. S. 
 
 App. 174, 79 Fed. Rep. 736), 518. 
 Hendricks \. Judah (1 Johns. 819), 
 
 617. 
 Hendricks v. McDaniel (80 Ga. 102), 
 
 518. 
 Hendricks v. State (36 Ind. 493), 384. 
 Hendricks v. Steamer Morning Star 
 
 (18 La. Ann. 353), 319. 
 Hendrix v. Gillett (6 Colo. App. 127), 
 
 579. 
 Henf V. N. W. M. A. Ass'n (76 Wis. 
 
 450), 153. 
 Henman v. lister (9 Jur., N. S., COl, 
 
 13 C. B., N. S., 776), 31. 
 Henman v. Lester (31 L. J. C. P. SC6), 
 
 707. 
 Hennesey v. Farrelly (13 Daly, i^\ 
 
 536. 
 Henning v. Miller (66 Hun, 588, 5t\ 
 
 N. Y. State Rep. 559), 307. 
 Henry v. Dulle (74 Mo. 413), 600. 
 Henry v. N. Y., L. E. & W. Pu. Co. (■'" 
 
 Hun, 76), 95. 
 Henson v. Henderson (31 N. Y. 224); 
 
 334. 
 Hepler v. Mt. Carmel Bank (97 Pa. St 
 
 420), 470. 
 
TABLE OF CASES. 
 
 IXXXV 
 
 References are to pages. 
 
 Herbert v. Tuokal (T. Eaym. 84), 429. 
 Herman v. Gnnther (83 Tex. 66, 29 
 
 Am. St Rep. 633), 6X7. 
 Hermes v. Chicago & W. R. Co. (80 
 
 Wis. 590), 497. 
 Herring v. Skaggs (73 Ala. 446), 698. 
 Herringtom v. Winn (38 N. Y. State 
 
 Rep. 88), 157. 
 Herrington v, Winn (60 Hun, 233), 
 
 174. 
 Herroy v. Van Pelt (4 Bosw., N. Y., 
 
 60), 544 
 Herscher v. Brazier (38 111. App. 654), 
 
 513. 
 Hersey v. Burton (28 Vt. 685>, 205. 
 Hess V! Board of Education (33 111. 
 
 App. 440), 296. 
 Hess V. Lowery (122 Ind. 225), 149, 258. 
 Hess' Appeal (131 Pa. St. 31), 644. 
 Hetherington v. Kemp (4 Camp. 193), 
 
 230. 
 Hewitt V. Clark (91 111. 605), 697. 
 Hewitt y. Eisenbart(36 Neb. 794), 502. 
 Hewitt V. Harvey (46 Mo. 106), 196. 
 Hewitt V. John Week Lumber Co. (77 
 
 Wis. 548), 285. 
 Hewitt V. Newberger (48 N. Y. State 
 
 Rep. 812), 356. 
 Hewitt V. State (121 Ind. 24!j), 224. 
 Hewlett V. Cock (7 Wend. 371), 446. 
 Hewlett V. Wood (55 N. Y. 634), 539. 
 Heye v. Tilford et al. (73 N. Y. State 
 
 Rep. 430), 406. 
 Heyne v. Doefler (124 N. Y. 505), 157. 
 Hibbard v. Knight (2 Ex. 11), 251, 
 Hickey v. Hinsdale (12 Mich. 99), 200. 
 Hicklin v. McClear (18 Oreg. 126), 275. 
 Hicks V. Cleveland (48 N. Y. 84), 51. 
 Hicks V. Cram (17 Vt. 449), 408. 
 Hicks V. State (86 Ala. 30), 15. 
 Hiett V. Shull (36 W. Va 563), 626. 
 Iligby V. Guardian Mut. L. Ins. Co. 
 
 (53 N. Y. 603), 586. 
 Higdon V. Heard (14 Ga. 256), 77. 
 Higgins V. Dewey (107 Mass. 494>, 535. 
 Higgins V. McDonald (16 Gray, 386), 
 
 71. 
 Higgins V. Moore (34 N. Y. 417, 425), 
 
 290, 292. 
 Higgins V. Ridgway (1^3 N. Y. 130), 
 
 314. 
 
 Higgins et al. v. Carlton & Scraggs 
 
 (28 Md. 115, 137), 34, 526. 
 High T. Pancake (42 W. Va. 602), 457. 
 Highara v. Ridgeway (2 Smith's L. C. 
 
 318), 457. 
 Higham v. Ridgway (10 East, 109, 
 
 120), 417. 
 Higham v. Stewart (38 Mich, 513), 637. 
 Highland Ave. & B. R Co. v. Walters 
 
 (91 Ala. 435), 189. 
 Highland T. Co. v. McKeen (10 Johns. 
 
 154), 481. 
 Highton V. Dessau (139 N. Y. 607, 46 
 
 N. Y. State Rep. 992), 585. 
 Hildeburn v. Curran (65 Pa. St 59), 35. 
 Hildreth v. Aldrich (15 R I. IBSX 29. 
 Hill V. Bailey (8 Mo. App. 85), 47. 
 Hill V. Burger (3 Bradf. 459), 397. 
 Hill V. Callaghan (31 Mich. 424), 46. 
 Hill V. Chamberlain (30 Mich 422), 399. 
 Hill V. Com. (3 Gratt 595), 431. 
 Hill V. C. T. Jewett (154 Mass. 172), 381. 
 Hill V. Pelton (15 Am. Rep. 643, 47 Ga. 
 
 455), 393. 
 Hill V. Grigsby (32 Cal, 55), 641. 
 Hill V. Mendenhall (21 Wall. 453), 46> 
 
 116. 
 Hill V. Miller (50 Kan. 659), 396. 
 Hill V. Procter (10 W. Va. 59), 416. 
 Hill V. Scott (38 Mo. App. 370), 606. 
 Hill V. Whidden (158 Mass. 267), 301. 
 Hillary v. Waller (12 Ves. 250, 251), 
 
 648. 
 Hills V. Rix (43 Minn. 543), 308. 
 Hilsley v. Palmer (32 Hun, 472), 577. 
 Hilts V. Colvin (14 Johns. 182X 235. 
 Hincheliffe v. Koontz (131 Ind. 422), 
 
 709. 
 Hinckley V. Davis (6 N. H. 210), 211. 
 Hinckley V. Kersting (21 111. 247), 599. 
 Hin,dman v. Vandyke (153 Pa. St 243), 
 
 461. 
 Hindson v. Ashby (1896, 2 Ch. 1), 655. 
 Hine V. Hine (39 Barb. 507), 394. 
 Hine v. Manhattan R Co. (132 N. Y. 
 
 477, 44 N. Y. State Rep. 634), 685. 
 Hine v. New York El. R Co. (149 N. Y. 
 
 154), 683. 
 Hine's Appeal (68 Conn. 551), 703. 
 Hines v. Com. (11 Ky. L. R 865), 254, 
 
 452. 
 
Ixxxvi 
 
 TABLE OF OASES. 
 
 Beferences are to pages. 
 
 Hines v. Com. (90 Ky. 64), 455. 
 Hinton v. Locke (5 Hill, 437), 893. 
 Hirsh V. Auer (146 N. Y. 13), 153, 206. 
 Hitchcock V. Carpenter (9 Johns. 344), 
 
 48. 
 Hitchings v. St. Louis, N. O. & O. C. 
 
 & T. Co. (53 N. Y. State Rep. 247, 
 
 68 Hun, 33), 495. 
 Hoag V. Greenwich (133 N. Y. 153, 44 
 
 N. Y. State Rep. 519), 608. 
 Hoar V. Hoar (33 Hun, 33), 164. 
 Hobart v. Hobart (63 N. Y. 80), 153, 
 
 164. 
 Hoddy V. Osborn (9 Iowa, 517), 369. 
 Hodge V. State (98 Ala. 10), 8, 587. 
 Hodges V. Beauchesne (13 Moo. P. C. 
 
 285, 325), 13. 
 Hodges V. Hodges (106 N. C. 374), 436, 
 
 438. 
 Hodson V. Eugene Glass Co. (156 111. 
 
 397), 367. 
 Hodson V. Goodale (83 Oreg. 68), 336. 
 Hoe V. Sanborn (31 N. Y. 553), 57. 
 Hoffeditz v. Maiden Creek Iron Co. 
 
 (141 Pa. St. 58), 841. 
 Hoffman v. Conner (76 N. Y. 134), 686. 
 Hoflfman v. Treadwell (3 S. C, T. & C, 
 
 54;, 400. 
 Hogan V. City of Brooklyn (53 N. Y. 
 
 382), 134. 
 Hogan V. Manhattan R. Co. (149 N. Y. 
 
 83), 350. 
 Hogan V. State (61 Ga. 43), 667. 
 Hogauspon v. Shirk (139 Ind. 353), 440. 
 Hoggan V. Craigie (Mac. & Rob. 943, 
 
 965), 434. 
 Hoke V. Field (19 Am. Rep. 58), 403. 
 Holbroke v. School Trustees (28 III. 
 
 187), 346. 
 Holbrook v. New Jersey Zinc Co. (57 
 
 N. Y. 616), 874. 
 Holbrooke v. Sims (39 Minn. 123), 68. 
 Holcorab V. Campbell (118 N. Y. 46), 
 
 154. 
 Holcomb V. Holcomb (28 Conn. 177), 
 
 138. 
 Holcorab V. Holcomb (65 N. Y. 816), 
 
 153. 
 Holderness v. Baker (44 N. H. 414), 
 
 313. 
 
 Holland v. Willets (9 N. Y. 170), 150. 
 Hollingsworth v. State (53 Ark. 387), 
 
 27." 
 Hollister v. Rizner (9 Ohio, 1), 208. 
 Holmes v. Billingham (7 C. B., N. S,, 
 
 329), 654. 
 Holmes v. Goldsmith (147 U. S. 150), 
 
 6, 310. 
 Holmes v. Green (1 Stark. 488), 314. 
 Holmes v. Hunt (122 Mass. 503), 593. 
 Holmes v. Jones (147 N. Y. 59, 69 
 
 N. Y. State Rep. 310, 49 Am. St. 
 
 Rep. 646), 48. 
 Holmes v. Remsen (7 Johni Ck. 286), 
 
 116. 
 Holmes v. Roper (141 N. Y 64, 56 
 
 N. Y. State Rep. 596), 719. 
 Holmes v. Turner's Falls Lumber Co. 
 
 (15 Mass. 53.5), 497. 
 Holston V. Boyle (46 Minn. 432), 37, 45, 
 Holt V. Kirby (57 Ark. 83), 363. 
 Holtz V. State (76 Wis. 99), 517. 
 Home Ins. Co. v. Baltimore N. Co. (93 
 
 U. S. 537), 128. 
 Home Ins. Co. v. Marple (1 Ind. App. 
 
 411), 645. 
 Honegger v. Wettstein (94 N. Y. 252), 
 
 367. 
 Honlenbeck v. McGibbon (60 Hun, 
 
 36), 88. 
 Hood V. Beauchamp (8 Sim. 29), 480. 
 Hood V. Jones (5 Del. Ch. 77), 603. 
 Hook V. Kenyon (55 Hun, 598, 29 
 
 N. Y. State Rep. 889), 684. 
 Hooker v. Bowles (3 Blackf. 90), 226. 
 Hooker v. Eagle Bank (30 N. Y. 83), 
 
 373, 880. 
 Hooper v. Beck (83 Md. 647), 715. 
 Hooper v. Hooper (82 W. Va. 536), 
 
 149. 
 Hoop's Estate (174 Pa. St. 3^3), 623. • 
 Hoover v. Cehr (63 Pa. St 136), 465.' 
 Hoover v. State (48 Neb. 184), 540. 
 Hope V. Beaden (17 Q. B; 209), 249. 
 Hopkins v. Bowers (111 N. C. 175), 
 
 161. 
 Hopkins v. Bowers (108 N. C. 298), 
 
 174. 
 Hopkins v. Clark (71 N. Y. State Bep. 
 
 444), 341. 
 
TABLE OF OASES. 
 
 Ixxxvii 
 
 References are to pa^es. 
 
 Hopkins v. Clark (90 Hun, 4), 153. 
 Hopkins V. Camp (17 Md. 113), 841. 
 Hopkins v. Manchiester (R. I., 7 L. R. 
 
 A. 387), 150. 
 Hopkins v. Megguire (35 Me. 78), 573. 
 Hopkins v. Stewart (39 Minn. 90), 514. 
 Hopper V. Cora. (6 Gratfe 680), 697. 
 Hopper V. Fislier (2 Head, 253), 604. 
 Hopper V. Justice (111 N. C. 418), 273. 
 Hopt V. Utah (110 U. S. 574), 217. 
 Horan v. Weiler (41 Pa. St 470), 636, 
 
 645. 
 Horn V. Fuller (6 N. H. 511), 814. 
 Horn V. Keteltas (46 N. Y. 605), 328. 
 Home V. McKinzie (6 CI. & F. 628), 
 
 700. 
 Home V. Williams (23 Ind. 87), 476. 
 Hornebeck v. American Bible Soc. 
 
 (2 Sandf. Ch. 133), 392. 
 Horner v. Homer (145 Pa. St 358), 
 
 309. 
 Hortenie v. Kaufman (97 Pa. St 147), 
 
 76. 
 Horton v. Bayne (52 Mo. '531), 364. 
 Hortou V. Horton (83 Hun, 218), 48. 
 Horton v. Wood (66 Hun, 633, 50 N. 
 
 Y. State Rep. 679), 459. 
 Hosford V. Rowe (41 Minn. 245), 456. 
 Hoskinson v. Central Vt R. Co. (66 
 
 Vt 618, 01 Am. & Eng. R. Cas. 
 
 478), 17, 87. 
 Hosier v. Beard (53 Ohio St 249). 366. 
 Hosley v. Black (28 N. Y. 438), 54, 65. 
 Hossack V. Moody (89 111. App. 17), 
 
 303. 
 Hotaling v. Marsh (132 N. Y. 29, 43 
 
 N. Y. State Rep. 544), 389. 
 Hotchkiss V. Artisans' Bank (42 Barb. 
 
 517), 282. 
 Hotchkiss V. Lyons (3 Black, 333), 211. 
 Houghten v. Carpenter (40 Vt 588), 
 
 331. 
 Houghton V. Jones (1 Wall. 702), 326, 
 
 706. 
 Houghton V. McAuliffe (2 Abb. Ct 
 
 App. Dec. 409), 375. 
 Houghton V. Paige (1 N. H. 60), 364. 
 Houlton V. Manteufel (51 Minn. 185), 
 
 436. 
 Houry v. Eppinger (34 Mich. 39), 863. 
 
 House T. Walch (144 N. Y. 418), 378. 
 Houstman v. Thornton (Holt, N. P. C. 
 
 343), 608. 
 Houston V. Clark (50 N. H. 482), 401. 
 Houston & W. T. R. Co. v. Stern (41 
 
 U. S. App. 309), 680. 
 Howard v. American Peace Soc. (49' 
 
 Me. 297), 393. 
 Howard v. Canfield (5 Dowl. 417), 700. 
 Howard v. Hudson (8 E. & B. 1), 120. 
 Howard v. Glenn (85 Ga. 238), 479. 
 Howard v. McDonough (77 N. Y. 592), 
 
 469. 
 Howard v. Russell (75 Tex. 171), 433. 
 Howard v. Upton (9 Hun, 434), 507. 
 Howard v. Zimpleman (3 Tex. Civ. 
 
 App. 176), 563. 
 Howard v. Zimpleman (80 Tex. 521), 
 
 177. 
 Howell V. Biddlecum (82 Barb., N. Y, 
 
 131), 51. 
 Howell V. Mainwarring (28 N. Y. State 
 
 Rep. 983), 154. 
 Howell V. Mellon (169 Pa. St 138), 
 
 343. 
 Howell V. Taylor (11 Hun, 214), 156. 
 Howland v. Blake (97 U. S. 636), 338. 
 Howl and v. Oakland Con. St R. Co. 
 
 (115 Cal. 487), 543. 
 Howland v. Union Theological Semi- 
 nary (5 N. Y. 218), 468. 
 Howssr V. Com. (51 Pa. St 332), 707. 
 Hoxie V. Home Ins. Co. (32 Conn. 21), 
 
 608. 
 Hoxsie V. Empire Co. (41 Minn. 548), 
 
 572. 
 Hoyt V. Hoyt (113 N. Y. 493), 98. 
 Hoyt, etc. t. Adee (8 Lans., N. Y., 
 
 173), 139. 
 Hronek v. People (13 Crim. Law Mag. 
 
 1022), 135. 
 Hubbell V. Meigs (50 N. Y. 48C), 483. 
 Huckel V. GufCy (37 W. Va. 435), 306. 
 Huokenstein v. Kelley & J. Co. (139 
 
 Pa. St 301), 358. 
 Hudson V. Carman (41 Me. 84), 480. 
 Hudson V. Charleston C. C. R. Co. (104 
 
 N. C. 491), 607. 
 Hudson V. Houser (123 Ind. 309), 152, 
 
 680. 
 
IxxxTiii 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Hudson V. Rome, W. & O. R Co. (145 
 
 N. Y. 408, 64 N. Y. State Rep. 843), 
 
 350. 
 Hudson V. State (3 Cold. 355), 455. 
 Huff V. Bermett (4 Sandf. 120), 477. 
 Huffman v. Cartwiight (44 Tex. 296), 
 
 200. 
 Hughes V. Delanave & H. Canal Co. 
 
 (176 Pa. St. 354), 457. 
 Hughes M. Hughes (87 Ala. 652), 341. 
 Hukill F. Guffy (37 W. Va. 435), 335. 
 Hulett V. Swift (33 N. Y. 571), 607. 
 Hulin V. Hulin (33 DI. App. 519', 139. 
 Hull T. Augustine (23 Wis. 383), 194. 
 Hull V. Cooper (36 Mo. App. CS9), 341. 
 Hulverson v. Hutchinson (39 Iowa, 
 
 316), 111. 
 Humes v. O'Brien (74 Ala. 64), 456. 
 Humes v. Proctor (151 N. Y. 530), 457, 
 
 518. 
 Humphrey v. Robinson (52 Hun, 300, 
 
 23 N. Y. State Rep. 88), 39-5. 
 Humphrey v. Sweeting (92 Hun, 447), 
 
 153. 
 Humphries v. Newport News& M. V. 
 
 Co. (23 W. Va. 135), 607. 
 Humphries v. New York, L. K & W. 
 
 R. Co. (121 N. Y. 436, 31 N. Y. 
 
 State Rep. 399), 301. 
 Hun V. Hun (1 N. Y. S. C, T. & C, 
 
 499), 97. 
 Hun V. Michigan C. R. Co. (78 Mich. 
 
 513), 477. 
 Hungerford Co. v. Rosenstein (46 N.Y. 
 
 State Rep. 195), 334. 
 Hungerford Nat. Bank v. Van Nos- 
 
 trand (106 Mass. 559), 378. 
 Hunnicut v. Peyton (103 U. S. 383, 
 
 362, 363), 416. 
 Hunnicut v. State (75 Tex. 333), 255, 
 
 478. 
 Hunnicut v. State (18 Tex. App. 498), 
 
 455. 
 Hunscun v. Hunsoun (15 Mass, 184), 
 
 134. 
 Hunt V. Bates (7 R. I. 217), 113. 
 Hunt V. Blackburn (128 U. S. 464), 101. 
 Hunt V. Boston (153 Mass. 168), 542. 
 Hunt V. Colorado Mill & E. Co. (1 
 
 Colo. App. 130), 411. 
 
 Hunt V. Fish (4 Barb. 334), 29. 
 Hunt V. Hayes (Vt, 45 Alb. L. J. 414), 
 
 400, 408. 
 Hunt V. Hayue (53 N. H. 162), 114. 
 Hunt V. Johnson (19 N. Y. 279), 436. 
 Hunt T. Utter (15 Ind. 318), 650. 
 Hunter v. Davis (10 Ga. 413), 115. 
 Hunter v. Gibbs (79 Wis. 70), 233. 
 Hunter v. Harris (34 111. App. 637), 
 
 655. 
 Hunter v. Herrick (93 N. Y. 636), 156. 
 Hunter v. Hunter (111 Cal. 361, 81 L. 
 
 E. A. 417), 601. 
 Hunter v. Manliattan R. Co. (141 N. 
 
 Y. 383), 537. 
 Hunter v. Miller (6 B. Mon., Ky., 612), 
 
 125. 
 HuBter V. N. Y., O. & W. R. Co. (116 
 
 N. Y. 615, 27 N. Y. State Rep. 729), 
 
 188, 197. 
 Hunter v. State (40 N. J. L. 495), 489. 
 Hvinting v. Dawner (151 Mass. 275), 45. 
 Hunting v. Emmart (55 Md. 265), 314. 
 Huntington V. Attrill <118 N. Y. 365, 
 
 29 N. Y. State Rep. 5), 689. 
 Huntley v. Huntley (78 Hun, 261), 105. 
 Hurd V. Hannibal & St. J. R Co. (18 
 
 N. Y. Week. Dig. 339), 63. 
 Hurd V. People (25 Mich. 405), 455. 
 Hinlburt v. Hurlburt (128 N. Y. 430), 
 
 456. 
 Hurlburt v. Hurlburt (63 Vt. 667), 29. 
 Hurlburt v. Hurlburt (18 N. Y. State 
 
 Rep. 407), 159, 
 Hurlburt's Estate (68 Vt 366), 438. 
 Hurley v. Lockett (73 Tex. 262), 498. 
 Hurley v. New York & B. Brew. Co. 
 
 (13 App. Div. 167), 539. 
 Hurst V. McNeil (1 Wash. C. C. 70), 
 
 648. 
 Huse V. Hamblin (29 Iowa, 501), 316. 
 Hussey v. Hill (119 N. C. 318), 137. 
 Hussey v. State (87 Ala. 131), 111, 413. 
 Huston V. Young (33 Me. 85), 316. 
 Huston's Estate (167 Pa. St 217), 466. 
 Hutchins v. Corgan (59 111. 70), 475. 
 Hutching v. Flintge (2 Tex. 473), 619. 
 Hutchins v. Ford (83 Me. 803), 549. 
 Hutchins v. Hibbard (34 N. Y. 24, 26), 
 
 268. 
 
TABLE OF OASES. 
 
 Ixxxix 
 
 References are to pages. 
 
 Hutchins v. Hutching (7 Hill, 104), 65. 
 Hutchins v. Hutchins (98 N. Y. 56), 
 
 329. 
 Hutchinson v. Hutchinson (103 Mich. 
 
 635), 311. 
 Hutchinson v. Manhattan Co. (150 
 
 N. Y. 250, 18 Bkg. L. J. 735), 190. 
 Hyatt V. Bates (35 Barb. 308, 40 N. Y. 
 
 164), 115. 
 Hymen v. Sohlenker (44 La. Ann. 108), 
 
 396. 
 Hynes v. McDermott (83 N. Y. 41), 
 
 580, 642. 
 Hypes V. Griffin (89 111. 134), 317. 
 
 Ilfrey v. Sabine & E. T. E. Co. (76 Tex. 
 
 63), 545. 
 Illinois C. R. Co. v. Blye (43 111. App. 
 
 612), 551. 
 Illinois 0. R. Co. v. Crogan (71 III. 184), 
 
 637. 
 ImhofE V. Richards (48 Neb. 590), 472. 
 Independence v. Pompton (3 Halst. 
 
 309), 432. 
 Indianapolis & C. R Co. v. Tying (63 
 
 N. Y. 653), 209. 
 Ingalls V. Aderitt (34 Mo. App. 371), 
 
 497. 
 Inge V. Murphy (10 Ala. 885), 239. 
 Ingles V. State (61 Ind. 213), 188. 
 Ingraham v. United States (155 U. S. 
 
 434), 600. 
 Inland & Coasting Co. v. Folsom (139 
 
 U. S. 551), 549. 
 Inloe's Lessee v. Harvey (11 Md. 519), 
 
 115. 
 Inness v. Boston R. B. & L. R Co. 
 
 (168 Mass. 433), 343. 
 Inquirer Co. v. Johnson (73 Fed. Rep. 
 
 443), 561. 
 Inslee v. Hampton (11 Hun, 156), 115. 
 Insurance Co. v. Rodel (95 U. S. 232), 
 
 525. 
 International & G. N. R Co. v. Kuehn 
 
 (3 Tex. Civ. App. 310), 537. 
 Ipswich Dock Com'rs v. Overseers, 
 
 etc. (7 B. & S. 310), 653. 
 Ireland v. Cincinnati, W. & M. R Co. 
 
 (79 Mich. 163), 46. 
 
 Irish V. Cutler (31 Me. 536), 313. 
 Irish V. Horn (84 Hun, 121), 160. 
 Irvin V. Beyil (80 Tex. 333), 435. 
 Irving Bank v. Wetherald (36 N. Y. 
 
 335), 123. 
 Irwin V. Lever (3 F. & F. 297), 248. 
 Irwin V. Noble (164 Pa. St. 639), 148. 
 Irwin V. Patchin (164 Pa. St. 51), 173. 
 Irwin's Estate (160 Pa, St 82), 171. 
 Isbell V. N. Y. & N. H. R, Co. (25 
 
 Conn. 556), 362. 
 Iser V. Cohen (57 Tenn. 421), 311. 
 Ives V. Bosley (35 Md. 563), 311. 
 
 Jackson v. Ashton (11 Pet. 239), 63. 
 Jackson v. Bailey (2 Johns. 17), 476. 
 Jackson v. Blodgett (5 Cowen, 302), 
 
 373. 
 Jackson v. Boon (93 Ga. 662), 567. 
 Jackson v. Brooks (8 Wend. 620), 575. 
 Jackson v. Clarke (18 Johns. 347), 620. 
 Jackson v. Corley (8 Johns. 138), 433. 
 Jackson v. Fidelity & C. Co. (41 U. S. 
 
 App. 553), 613. 
 Jackson v. French (3 Wend. 337), 86. 
 Jackson v. Gridley (18 Johns. 98), 135. 
 Jackson v. Halstead (5 Cow. 316, 218), 
 
 225. 
 Jackson v. Hardy (4 Johns. 202), 625. 
 Jackson v. Humphrey (1 Johns. 498), 
 
 84. 
 Jackson v. Irvin (2 Camp. 50), 372. 
 Jackson v. Jackson (80 Md. 176),. 6, 
 
 183. 
 Jackson v. Jackson (87 Ala. 372), 564. 
 Jackson v. Kent (42 Neb. 413), 676. 
 Jackson v. King (5 Cow. 237), 633. 
 Jackson v. Kingsley (17 Johns. 158), 
 
 225, 250. 
 Jackson v. Kniffen (2 Johns. 35), 455. 
 Jackson v. Lamb (7 Cow. 431), 447. 
 Jackson v. Lawson (15 Johns. 544), 
 
 476. 
 Jackson v. Love (82 N. C. 495), 364. 
 Jackson v. Luguere (5 Cow. 221), 446. 
 Jackson v. Pittsburgh, C, C. & L. R. 
 
 Co. (140 Ind. 241), 641. 
 Jackson v. Poole (91 Tenn. 448), 357. 
 Jackson v. Powers (40 Vt 611), 476. 
 
xc 
 
 TABLE OF OASES. 
 
 References are to pages. 
 
 Jackson v. Shearman (6 Johns. 19), 
 
 849. 
 Jackson v. Sill (11 Johns. 201), 316. 
 Jackson v. State (59 Ala. 249), 218. 
 Jackson v. State (60 Ark. 308), 583. 
 Jackson v. State (52 Ala. 803), 488. 
 Jackson v. Swope (134 lud. Ill), 32. 
 Jackaon Milling Co. v. Chandos (82 
 
 Wis. 437), 279. 
 Jacksonville, T. & K. W. R. Co. v. 
 
 Wellruan (26 Fla. 344), 497. 
 Jacob V. Lindsay (1 East, 460), 224. 
 Jacob V. United States (1 Brock. 528), 
 
 613. 
 Jacobs V. Callaghan (57 Mich. 11), 414, 
 
 518. 
 Jacobs V. Shenon (2 Conn. 1002), 308. 
 Jacques v. Elmore (7 Hun, 675), 160, 
 
 163. 
 Jaflfries v. Castelman (75 Ala. 262), 475. 
 James v. Ford (30 N. Y. State Rep. 
 
 667, 16 Daly, 126), 582. 
 James v. Howard (3 G. & Dav. 264), 
 
 604. 
 James v. James (81 Tex. 373), 641. 
 James v. Samis (132 N. Y. 239, 43 N. 
 
 Y. State Rep. 110), 253. 
 James v. State (104 Ala. 20), 582. 
 Jameson v. Kent (42 Neb. 412), 677. 
 Jamieson v. Indiana Natural Gas Co. 
 
 (128 lud. 555, 44 Alb. L. J. 145), 
 
 187, 194. 
 Jamieson v. Kings County L. R. Co. 
 
 (147 N. Y. 322), 683. 
 Jamison v. People (145 111. 357), 494, 
 
 554. 
 Jamison v. Weaver (81 Iowa, 212), 563. 
 Janes v. Janes (81 Tex. 373), 156. 
 Janesville Cotton Mills v. Ford (82 
 
 Wis, 416), 279. 
 Jansen v. Sidoal (41 111. App. 279), 637. 
 Janvrin v. Soammon (29 N. H. 280), 
 
 74. 
 Jardine v. Sheridan (2 C. & K. 24), 
 
 130. 
 Jarvis v. Dean (8 Bing. 447), 651. 
 Jay T. Carthage (48 Me. 853), 613, 625. 
 Jaycox V. Caldwell (51 N. Y. 395), 401. 
 Jefferds v. Alvard (151 Mass. 94), 496. 
 Jefferds v. People (5 Park. Cr. Rep. 
 
 522), 217. 
 
 Jefferson v. New York El. R. Co. (13S 
 
 N. Y. 483, 44 N. Y. State Rep. 629), 
 
 528, 682. 
 Jemison v. Kennedy (55 Hun, 47), 67. 
 Jenkins v. Collard (145 U. S, 546), 18:j, 
 Jenkins v. Davis (10 Q. B. 314), 435, 
 Jenkins v. Harvey (1 C, M, & R, 87T), 
 
 592. 
 Jenkins v. State (35 Fla. 787, 48 Am. 
 
 St Rep. 267), 515. 
 Jenkinson v. Monroe (61 Mich. 454), 
 
 278. 
 Jennings v. Grand Trunk R Co. (53 
 
 Hun, 327, 23 N. Y. State Rep. 15), 
 
 643. 
 Jennings v. Webb (8 D. C. App. 43), 
 
 429. 
 Jennison v. Walker (11 Gray, 433), 653, 
 Jenny v. Marble (37 Mich. 319), 104. 
 Jermain v. Denniston (6 N. Y, 876), 
 
 513. 
 Jewell V. Sentre (35 Ala 498), 185, S51. 
 Jeyne v. Price (5 Taunt, 386), 650. 
 J. Oberman Brew. Co. v. Adams (35 
 
 111. App, 540), 521. 
 John Morris Co. v. Southworth (154 
 
 III. 118), 349. 
 Johnson y. Agricultural Ins. Co. (25 
 
 Hun, 251), 349. 
 Johnson v. Barnes (L. R 7 C. P. 592), 
 
 .650. 
 Johnson v. Beardslee (15 Johns, 3), 814. 
 Johnson v. Burns (89 W. Va, 658), 285. 
 Johnson v. Castle (68 Vt. 453), 568. 
 Johnson v. Common Council (16 Ind- 
 
 227), 185. 
 Johnson v. Cowdry (46 N. Y. State 
 
 Rep, 546), 440. 
 Johnson v. Culver (116 Ind. 278), 474, 
 
 588. 
 Johnson v, Donovan (20 N. Y. State 
 
 Rep, 30, 50 Hun, 215), 322. 
 Johnson v. Hart (82 Ga 767, n.), 153. 
 Johnson v. Johnson (80 Ga. 260), 518, 
 Johnson v. Lawson (2 Bing. 86;, 430, 
 Johnson v. Morestead (63 Minn, 397), 
 
 468. 
 Johnson v. Northern P. R. Co. (1 N. D. 
 
 354), 612. 
 Johnson v. Northwestern Mut, L. Ins. 
 
 Co. (56 Minn. 872), 369. 
 
TABLE OF OASES. 
 
 XCl 
 
 iJe/ercjices are to pages. 
 
 Johnson v. Pattersqp (80 Ga. 97), 270. 
 Johnson v. People (3 Hill, 178), 24. 
 Johnson v. Powers (40 Vt 611), 476. 
 Johnson v. Robertson (31 Md. 416), 192. 
 Johnson v. Smith (165 Pa. St 195), 297. 
 Johnson v. Steam Gauge & L. Co. (146 
 
 N. Y. 152, 66 N. Y. State Rep. 276), 
 
 350. 
 Johason v. St Louis, I. M. & S. R. Co. 
 
 (141 U. S. 602), 808. 
 Johnson v. State (22 Tex. App. 206), 35. 
 Johnson v. State (87 Ala 39), 514. 
 Johnson v. State (76 Ga. 76), 137. 
 Johnson v. State (48 Ga. 110). 140. 
 Johnson v. State (N. J., 85 Atl. Rep. 
 
 787), 257. 
 Johnson v. Syford (L. R. 1 P. D. 547), 
 
 227. 
 Johnson v. Thompson (129 Mass. 398), 
 
 121. 
 Johnson v. Townsend (117 N. O. 338), 
 
 168. 
 Johnson v. Trinity Church (11 Allen, 
 
 123), 204. 
 Johnson v. Tying (73 N. Y. State Rep. 
 
 205), 206. 
 Johnson v. "Way (27 Ohio St 374), 363. 
 Johnson v. Wiley (74 Ind. 233), 31, 706. 
 Johnson v. Williard (83 Wis. 420), 310. 
 John Spiy Lumber Co. v. The C, H. 
 
 Green (76 Mich. 220), 090. 
 Johnston v. Manhattan R Co. (60 Hun, 
 
 583, 39 N. Y. State Rep. 227), 684. 
 Joliet V. Blower (155 III 414), 684. 
 Jones V. Axen (1 Ld. Raym. 119), 44. 
 Jones V. Bank of CarroIIton (71 Miss. 
 
 1028), 171. 
 Jones y. Boston (104 Mass. 461), 362. 
 Jones V. Carrington (1 C. & P. 827, 
 
 497), 441. 
 Jones V. Cordele G. Co. (94 Ga. 14), 7. 
 Jones V. East Society, etc. (21 Barb. 
 
 174), 513. 
 Jones V. Emory (115 N. C. 158), 171. 
 Jones V. Foxall (15 Beav. 390, 896, 897), 
 
 130. 
 Jones V. Fuller (19 S. C. 66), 587. 
 Jones V. Gilbert (135 111. 27), 398, 621. 
 Jones V. Goodbar (60 Ark. 182), 40. 
 Jones V. Hays (4 McLean, 521), 195. 
 
 Jones V. Hurlburt (89 Barb. 403), 406. 
 Jones V. Insurance Co. (2 Wall. Jr. 
 
 278), 608. 
 Jones V. Jones (45 N. D. 144), 588. 
 Jones V. Jones (120 N. Y. 589), 686. 
 Jones V. Jones (9 M. & W. 75), 229. 
 Jones V. Jones (51 N. Y. State Rep. 
 
 75), 508. 
 Jones V. Jones (86 Md. 447, 457), 433. 
 Jones V. Jones (137 N. Y. 610), 508. • 
 Jones V. Layman (123 Ind. 569), 485. 
 Jones y. Lea (77 Mich. 35), 584. 
 Jones V. McNeill (2 Bailey, S. C, 466), 
 
 31. 
 Jones V. Morehead (1 Wall. 256), 61. 
 Jones V. Morgan (90 N. Y. 4, 11), 
 
 686. 
 Jones V. Muisbach (26 Tex. 235), 362. 
 Jones V. People (6 Park., N. Y., 126), 
 
 186. ' 
 Jones V. Portland (88 Mich. 598), 569. 
 Jones V. Pres. etc. of Portland (88 
 
 Mich. 598), 500. 
 Jones v.'PuUen (115 N. C. 465), 869. 
 Jones V. RIgby (41 Minn. 530), 485. 
 Jones V. Roberts (37 Mo. App. 163), 
 
 521. 
 Jones V. Sasser (1 Dev. & Bat, N. C, 
 
 453, 464), 121. 
 Jones V. State (65 Miss. 179), 34, 
 Jones V. Stroud (3 C. & P. 196), 700. 
 Jones V. Union R Co. (18 App. Div. 
 
 67), 348. 
 Jones V. United States (137 U. S. 202), 
 
 193. 
 Jones V. Utica & Black R. R. Co. (40 
 
 Hun, 349), 531. 
 Jones V. Ward (8 Jones, N. G, L. 24), 
 
 477. 
 Jones V. White (11 Humph. 268), 540. 
 Jones V. Wiesen (50 Neb. 343), 617. 
 Jones V. Williams (2 M. & W. 330), 9. 
 Jordan, Matter of (49 Fed. Rep. 338), 
 
 195. 
 Joseph V. South work F. & M. Co. (93 
 
 Ala. 13), 411. 
 Jourdan v. Long Island R. Co. (115 
 
 N. Y. 380, 26 N. Y. State Rep. 138), 
 
 380. 
 Joy V. Defendorflf (130 N. Y. 6), 617. 
 
xcu 
 
 TABLE OF CASES. 
 
 Be/erences are to pages. 
 
 Joyner v. South Carolina R Co. (26 
 
 S. C. 49), 607. 
 Judd V. Brentwood (46 N. H. 430), 25. 
 Judson V. Easton (58 N. Y. 664), 545. 
 Jumpeitz V. People (21 111. 375), 574. 
 
 K. 
 
 Kaelin v. Com. (84 Ky. 354, 367), 204. 
 Kahn v. Atlantic & N. C. E. Co. (115 
 ■ N. C. 638), 349. 
 Kain v. Larkin et al. (131 N. Y. 380, 
 
 43 N. Y. State Rep. 197), 255, 358. 
 Kaines v. Knightly (Skin. 54), 315. 
 Kaiser v. First Nat. Bank (78 Fed. Rep. 
 
 381), 315. 
 Kaiser v. Kaiser (16 Hun, 602), 47. 
 Kale V. Elliott (18 Hun, 198), 156. 
 Kane v. Bloodgood (7 Johns. Ch. 90), 
 
 63. 
 Kane v. Torbit (28 111. App. 311), 513. 
 Kankakee & S. R. Co. v. Horan (131 
 
 111. 288), 425. 
 Kansas City, Ft. S. & M. 'R. Co. v. 
 
 Cook (57 Ark. 79), 547. 
 Kansas City, Ft. S. & M. E. Co. v. 
 
 Stoner (51 Fed. Rep. 649), 501. 
 Kansas City, Ft. S. & M. R Co. v. 
 
 Stoner (49 Fed. Rep. 209), 610. 
 Kansas P. R Co. v. Miller (3 Cal. 443), 
 
 632. 
 Karr v. Stivers (34 Iowa, 123), 463. 
 Kaserman v. Friers (33 Neb. 427), 308. 
 Katter v. Pullman P. C. Co. (98 Ga. 
 
 ' 810), 352. 
 Kaufman v. Maier (18 L. R. A. 134, 
 
 94 Cal. 369), 550. 
 Kaufman's Will (131 N. Y. 630, 15 L. 
 
 R A. 392), 635. 
 Kavanagh v. Wilson (70 N. Y. 177), 
 
 367, 425. 
 Kean v. Klausman (21 Mo. App. 485), 
 
 183. 
 Keating v. Vansickle (74 Ind. 529), 311. 
 Kearney v. Farrell (28 Conn. 317), 501. 
 Keating v. Orne (77 Pa. St. 89), 132. 
 Keele's Estate (Pa., 30 W. N. C. 419), 
 
 638. 
 Keene v. Mead (3 Pet 1, 7), 264. 
 Keener v. Zortman (144 Pa. St. 179), 
 167. 
 
 Keerans v. Brown (68 N. C. 43), 34. 
 Keever v. Ball (71 Ind. 898), 116. 
 Kehler v. Schwenk (151 Pa. St. 505, 
 
 31 Am. St. Rep. 777), 550. 
 Kehoe v. Corvill (84 Iowa, 415), 411. 
 Keiden v. Winegar (95 Mich. 430), 272. 
 Keith V. Lothrop (10 Cush. 453), 573, 
 Keleraan's Will (136 N. Y. 73, 36 N. 
 
 Y. State Rep. 390), 262. 
 Keller v. Ashford (138 U. S. 610), 253. 
 Keller v. Ford (136 Pa. St. 1), 590. 
 Keller v. Paine (34 Hun, 167), 545. 
 Keller v. Phillips (39 N. Y. 351), 408. 
 Keller v. West B. & C. M. Co. (39 Hun, 
 
 341), 166. 
 Keller v. Salisbury (33 N. Y. 648), 370. 
 Kelley v. Maybury (154 Pa. St. 440), 
 
 677. 
 Kelley v. People (55 N. Y. 565), 205. 
 Kelley v. Rowane (88 Mo. App. 440), 
 
 680. 
 Kellock V. State (88 Wis. 663), 206. 
 Kellogg V. Clyne (54 Fed. Eep. 696), 
 
 356. 
 Kellogg V. Curtis (69 Me. 312), 363. 
 Kellogg V. Dunn (2 Met, Ky., 215), 311. 
 Kelly V. Calhoun (17 Alb. L. J. 55), 380. 
 Kelly V. Campbell (2 Abb. Ct App. 
 
 Dec. 492), 401, 487. 
 Kelly V. Detroit, L. & N. R Co. (80 
 
 Mich. 237), 505. 
 Kellv V. Leachman (Idaho, 38 Pae. 
 
 Rep. 44), 273. 
 Kelly V. Scott (49 N. Y. 601), 408. 
 Kelly V. State (31 Tex. Rep. 216), 362. 
 Kelsea v. Fletcher (48 N. H. 282), 478. 
 Kelsey v. Chicago & N. W. R. Co. (43 
 
 Am. & Eng. R Cas. 43), 607. 
 Kelsey v. Hanmer (18 Conn. 311), 285. 
 Kelton V. Hill (58 Me. 114), 463. 
 Kemmerer v. Edelman (33 Pa. St 143), 
 
 697. 
 Kendall v. Collier (97 Ky. 446), 579. 
 Kendall v. Freeman (2 McLean, 189), 
 
 58. 
 Kendall v. May (10 Allen, Mass., 63), 
 
 139, 153. 
 Kendall v. Russell (5 Dana, Ky., 50), 
 
 492. 
 Kendrick v. State (10 Humph. 479), 
 474. 
 
TABLE OF CASES. 
 
 XCIU 
 
 References are to pages. 
 
 Keniston v. Rowe (16 Me. 88), 588. 
 Kennally v. Selleck (21 N. Y. Weekly 
 
 Dig. 72), 535. 
 Kennebec Savings Bank v. Fogg (83 
 
 Me. 874), 271. 
 Kennedy v. Atwater (77 Pa. St. 84), 
 
 411. 
 Kennedy v. Cotton (28 Barb. 59), 874. 
 Kennedy v. Doyle (10 Allen, 161, 168), 
 
 440. 
 Kennedy v. Reynolds (37 Ala. 364), 
 
 235. 
 Kennedy v. Rochester B. R. Co. (130 
 
 N. Y. 654, 41 N. Y. State Rep. 
 
 329), 504. 
 Kennedy v. Ryall (67 N. Y. 386), 395. 
 Kennedy v. State (19 Tex. App. 618), 
 
 697. 
 Kennedy v. Wood (52 Hun, 40, 22 
 
 N. Y. State Rep. 132), 357, 513. 
 Kennelty v. Baltimore & O. R Co. 
 
 (166 Pa. St. 60), 550. 
 Kennemore v. Kennemore (26 S. C. 
 
 251), 153. 
 Kennon v. Gilmer (121 U. S. 22), 16. 
 Kenosha Stove Co. v. Shedd (83 Iowa, 
 
 540), 620. 
 Kent V. Kent (62 N. Y. 560), 387. 
 Kent V. Mason (79 111. 540), 413. 
 Kenyon v. Kenyon (88 Hun, 211), 603. 
 Kernan v. Baham (45 La. Ann. 741), 
 
 273. 
 Kernoohan v. New York El. R. Co. 
 
 (128 N. Y. 559, 36 N. Y. State 
 
 Rep. 434), 683. 
 Kerr v. McGuire (88 N. Y. 446), 166. 
 Kerrains v. People (60 N. Y. 221), 
 
 857. 
 Kessbis' Estate (87 Wis. 660), 163. 
 Kessler v. Smith (42 Minn. 294), 309. 
 Ketcham v. Holden (88 Hun, 482), 
 
 154. 
 Keyser v. Hitz (133 U. S. 138), 1C3. 
 Kidder v. Blaisdell (45 Me. 461). 846. 
 Kidder v. Norris (18 N. H. 532), 636. 
 Kidder v. Stevens (60 Cal. 415). 625. 
 Kidney v. Cockburn (2 Russ. & My. 
 
 167), 439. 
 Kiel v. Choate (93 Wis. 517), 8] 1. 
 Kierstead v. Brown (23 Neb. 595), 129. 
 
 Kilbourne v. Sullivan County (137 
 
 N, Y. 170, 50 N. Y. State Rep. 376), 
 
 361. 
 Kilpatrick v. Com. (31 Pa. St. 198), 451. 
 Kilpatrick v. Jenkins (96 Tenn. 85), 
 
 461. 
 Kimball v. Bryan (56 Iowa, 652), 56. 
 Kinoh V. Kinch (75 Va. 13), 374. 
 King V. Bryan (3 Str. 1101), 44. 
 King V. Doanes (139 U. S. 166), 867. 
 King V. Fitch (3 Abb. Ct App. Dec. 
 
 508), 881. 
 King V. Kelley (38 Ind. 89), 615. 
 King V. Richards (6 Whart. 418, 431), 
 
 131. 
 King V. State (91 Tenn. 617), 362, 715. 
 King V. State (55 Ark. 604), 36. 
 King V. Worthington (104 U. S. 44), 
 
 132. 
 Kingen v. State (45 Ind. 518), 666. 
 Kingman, P. & W. R. Co. v. Quinn 
 
 (45 Kan. 477), 41. 
 Kingsbury v. Moses (45 N. H. 222), 
 
 327. 
 Kingsland v. Koeppe (35 III. App. 81), 
 
 811. 
 Kingsland v. New York (60 Hun, 489, 
 
 39 N. Y. State Rep. 433), 542. 
 Kinney v. Flynn (2 R. I. 819), 816. 
 Kinney v. Folkerts (78 Mich. 687), 207. 
 Kinsman v. Parkhurst(18 How., U. S., 
 
 289, 292), 130. 
 Kintzel v. Kintzel (113 Pa. St. 71), 520. 
 Kirby v. Com. (77 Va. 681), 486. 
 Kirby v. State (89 Ala. 63), 205. 
 Kirchner v. New Home Sew. Mach. 
 
 Co. (48 N. Y. State Rep. 242, 135 
 
 N. Y. 182), 303. 
 Kirclmei- v. Venus (13 Moore Priv. 
 
 Coun. Cas. 361), 390. 
 Kirk V. Hamilton (103 U. & 68), 69. 
 Kirk V. Hartman (63 Pa St. 97), 123. 
 Kirk V. Mowry (84 Ohio St. 581), 477. 
 Kirkham v. Boston (67 111. 599), 313. 
 Kirkpatrick v. Brown (59 Ga. 450, 
 
 453), 133. 
 Kirkstall Brewery Co. v. Furness Ry. 
 
 Co. (L. R. 9 Q. B. 468), 210. 
 Kirschner v. Loughlin (N. M., 38 Pac. 
 
 Rep. 505), 248. 
 
SCIV 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Kitchenbottom v. D., L. & W. E. Co. 
 
 (122 N. Y. 91, 33 N. Y. State Rep. 
 
 312), 568. 
 Klei V. Hoffheimer (132 U. S. 367), 519. 
 Kleiman v. Geiselmann (45 Mo. App. 
 
 ■ 497), 246. 
 Kline v. Bank of Tescott (50 Kan. 91), 
 
 272. 
 Kling V. Kansas City (27 Mo. App. 
 
 231), 94. 
 Klinger v. Bendy (36 Hun, 601), 42. 
 Klock V. Biennan (82 Hun. 262), 152. 
 Klock, Matter of (49 Hun, 450, 19 N. 
 
 Y. State Rep. 307), 553. 
 Knapp V. Gregory (65 Hun, 621, 47 
 
 N. Y. State Rep. 408), 301. 
 Knapp V. Knapp (95 Mich. 474), 353. 
 Knapp V. Marlboro (29 Vt. 282), 284, 
 
 323. 
 Knapp V. Roche (37 N. Y. Super. Ct. 
 
 395), 51. 
 Knapp V. Simon (96 N. Y. 284), 40. 
 Knaus v. Dudgeon (110 Mo. 58), 410. 
 Kuottv. Cunningham (2Sneed, Tenn., 
 
 204), 113. 
 Kneeland v. Lawrence (140 U. S. 200), 
 
 138. 
 Kneenan, Matter of (56 N. Y. State 
 
 Rep. 187), 7. 
 Kneetle v. Newcomb'e (22 N. Y. 341), 
 
 123. 
 Knight V. Adamson (2 Freem. 106), 
 
 647. 
 Knight V. Cunnington (6 Hun, 100), 
 
 160, 465. 
 Knight V. McKinney (84 Me. 107), 638. 
 Knight V. Richer (11 Mont. 74), 478. 
 Knight V. V.'aterford (4 Y. & C. 283), 
 
 458. 
 Knisley v. Sampson (100 111. 373), 619. 
 Knower v. Central Nat. Bank (124 
 
 N. Y. 552, 37 N. Y. State Rep. 89), 
 
 620. 
 Knowles v. Dowe (22 N. H., 3 Fost., 
 
 408), 282. 
 Knowles v. Gaslight Co. (19 Wall. 58), 
 
 116. 
 Knox V. Silloway (1 Fairf. 201), 235. 
 Knox County v. New York Nat. Bank 
 
 (147 U. S. 91), 494. 
 
 Koch V. Lyons (82 Mich. 513), 514. 
 Kock V. Bonitz (4 Daly, 117), 49. 
 Koegel V. Egner (54 N. J. Eq. 638), 
 
 619. 
 Koehler v. Adler (91 N. Y. 657), 159, 
 
 175. 
 Koehler v. Buhl (94 Mich. 496), 33. 
 Koehler v. Miller (21 111. App. 557), 
 
 498. 
 Koehler v. Schieder (15 Daly, 189, 31 
 
 N. Y. State Rep. 549), 477. 
 Koenig v. Bauer (57 Pa. St. 168), 
 
 714. 
 Koetter v. Manhattan El. R Co. (38 
 
 N. Y. State Rep. 611, 129 N. Y. 
 
 669), 497. 
 Kollock V. Emmert (43 Mo. App. 536), 
 
 642. 
 Kornegay v. Kornegay (117 N. C. 242), 
 
 575. 
 Korneman v. Fred. Hower Brew. Co. 
 
 (53 N. Y. State Rep. 450), 301. 
 Kortlander v. Elston (53 Fed. Rep. 
 
 180), 360. 
 Kosraack v. Mayor, etc. of New York 
 
 (117 N. Y. 361), 712. 
 Kraatz v. Brush Electric Light Co. 
 
 (82 Mich. 457), 542. 
 Kraemer v. Adelsberger (122 N. Y. 
 
 467, 34 N. Y. State Rep. 24), 646. 
 Krager v. Pierce (73 Iowa, 59), 706. 
 Kreiter v. Nichols (28 Mich. 500), 
 
 345. 
 Krekeler v. Ritter (63 N. Y. 373), 47, 
 
 69, 116. 
 Kretschmer v. Hard (32 Pac. Rep: 418), 
 
 277. 
 Kreusbeger v. Wingfield (96 Cal. 251), 
 
 336. 
 Krohn v. Landeth (114 Cal. 802), 645. 
 Kron V. Levy (1 Hun, 172), 467. 
 Krower v. Reynolds (99 N. Y. 245). 52. 
 Kuhra v. Schwartz (33 Mo. App. 610), 
 
 247. 
 Kummer v. Christopher & T. St. E. 
 
 Co. (46 N. Y. State Rep. 386), 11. 
 Kuns V. Robertson (154 111. 394), 342. 
 Kurtz & Co. V. Spencer (57 L. J. Ch. 
 
 238), 130. 
 Kyte V. Foran (167 Pa. St. 252), 169. 
 
TABLE OF OASES. 
 
 XCV 
 
 Eiferences are to pages. 
 
 Laboree v. Klostermann (33 Neb. 150), 
 
 468. 
 La Champagne (58 Fed. Rep. 398), 686. 
 Lachman v. Block (47 La. Ann. 505), 
 
 373. 
 Lacrolx v. Sarrazzln (15 Fed. Rep. 
 
 489), 186." 
 Lade v. Shepherd (2 Str. 1004), 651. 
 La Fayette Mut. Bldg. Ass'n v. Kleim- 
 
 hoffer (40 Mo. App. 388), 476. 
 Lahey v. Ottman (73 Hun, 61, 56 N. Y. 
 
 State Rep. 108), 495, 717. 
 Laing v. Rigney (160 U. S. 531), 562. 
 Lalng V. United N. J. R. & C. Co. (54 
 
 N. J. L. 576), 523. 
 Lake v. Nolan (81 Mich. 112), 172, 622. 
 Lake v. Tysen (6 N. Y. ,461), 638. 
 Lake County v. Piatt (79 Fed. Rep. 
 
 567), 111. 
 Lake Erie & W. E. Co. v. Wills (39 
 
 111. Apj), 649), 567. 
 Lakeside Land Co. v. Droniegoole (89 
 
 Ala. 505), 310. 
 Lally T. Emery (54 Hun, 517, 28 N. Y. 
 
 State Rep. 127), 357, 562. 
 Lamar v. State (63 Miss. 265), 667. 
 Lamb v. Harbaugh (105 Cal. 680), 49. 
 Lamb v. Ward (18 Q. B., U. C, 304), 
 
 706. 
 Lamb's Will (18 N. Y. Supp. 173), 92. 
 Lambert v. Seely (17 How. Pr. 430), 
 
 371, 373. 
 Lamon v. French (25 Wis. 37), 315. 
 Larrioreaux v. Attorney-General (89 
 
 Mich. 147), 433. 
 Lamson Consolidated Store Ser. Co. 
 
 V. Hartung (46 N. Y. State Rep. 
 
 191), 334. 
 Lanark v. Dougherty (153 III. 163), 
 
 258. 
 Lancaster v. Blaney (140 111. 203), 
 
 172. 
 Lancaster v. State (Tex., 31 S. W. Rep. 
 
 515), 101. 
 Lancaster Mills v. Merchants' Cotton 
 
 Press & S. Co. (89 Tenn. 1), 262. 
 Lance v. Shaughnessey (86 Hun, 411), 
 
 '47. 
 Lance'a Appeal (112 Pa. St. 467), 328. 
 
 Lander v. Arno (65 Me. 26), 114. 
 Landers v. Belton (20 Cal. 393), 66. 
 Landers v. Cooper (115 N. Y. 279, 26 
 
 N. Y. State Rep. 273), 270, 391. 
 Landis v. Morrissey (69 Cal. 83), 44. 
 Lane v. Brainerd (30 Conn. 565), 475. 
 Lane v. Lane (95 N. Y. 495), 164. 
 Lane v. Missouri P. R. Co. (132 Mo. 4), 
 
 350. 
 Lane v. Rogers (113 N. C. 171), 163. 
 Lane v. Sohlemmer (141 Ind. 396), 67, 
 
 69. 
 Lane v. Union Nat. Bank (3 Ind. App. , 
 
 299), 389. 
 Lanergan v. People (39 N. Y. 39), 304. 
 Lang V. Smith (37 W. Va. 725), 158. 
 Lang V. Terry (163 Mass. 156), 551. 
 Langdon v. Astor (16 N. Y. 9), 395. 
 Langdon v. Doud (10 Allen, 433), 127. 
 Lange v. Schoettler (115 Cal. 388), 711. 
 Langford v. Jones (18 Greg. 307), 29. 
 Langley v. Wadsworth (99 N. Y. 61), 
 
 703. 
 Langlois v. Crawford (59 Mo. 456, 466), 
 
 269. 
 Langworthy v. Green Tp. (88 Mich. 
 
 207), 545. 
 Lanier v. Faust (81 Tex. 186), 300. 
 Lanigan v. Bradley, etc. Co. (50 N. J. 
 
 Eq. 201), 373. 
 Lanitz v. King (93 Mo. 513), 66. 
 Lanphere v. Clark (149 N. Y. 472), 48. 
 Lansburgh v. Wiusatt (7 App. Dist. of 
 
 Col. 271), 683. 
 Lansing v. Goley (13 Abb. Pr., N. Y., 
 
 373), 719. 
 Lapham v. Briggs (37 Vt. 26), 111, 116. 
 Larkins v. Parmelee (69 Conn. 79), 122. 
 Larocque v. Harvey (57 Hun, 336, 32 
 
 N. Y. State Rep. 415), 119. 
 La Rue v. St Anthony & D. E. Co. 
 
 (3 S. D. 637), 495. 
 Lasatere v. Van Hook (77 Tex. 650), 
 
 253. 
 Lashaw v. Croissant (88 Hun, £06, 68 
 
 N. Y. State Rep. 395). 153. 
 Lasher v. State (30 Tex. App. 387), 193. 
 Lassone v. Boston & L. R. Co. (N. H., 
 
 46 Alb. L. J. 273), 460. 
 Latham v. De Loiselle (N. Y., 3 App. 
 
 Div. 525), 641. 
 
XCVl 
 
 TABLE OF CASES. 
 
 Eeferences are to pages. 
 
 Lathrop v. Adkisson (87 Ga. 339), 477. 
 Lathrop v. Godfrey (6 N. Y. S. C., T. 
 
 & Q, 96), 69. 
 Lathrop v. Roberts (16 Colo. 350), 75. 
 Laughlin v. Grand Eapids E. Co. (80 
 
 Mich. 154), 505. 
 Laughran y. Kelly (8 Cush. 199), 884. 
 Lauter v. Schluter (78 Tex. 103), 433. 
 Lavrette v. Halcombe (18 Ala 508), 
 
 245. 
 Lawman v. Shutes (134 Ind. 416), 518. 
 Lawrence v. Barker (5 Wend, 801), 
 
 39, 81. 
 Lawrence v. Hunt (10 Wend. 81), 109. 
 Lawrence v. Hyman (79 N. C. 309), 
 
 328. 
 Lawrence v. Lawrence (15 Fed. Rep. 
 
 621), 635. 
 Lawrence v. Lindsay (68 N. Y. 108), 
 
 888. 
 Lawrence v. Ober (3 Camp. 514), 653. 
 Lawrence v. Phillips (67 Hun, 61, 51 
 
 N. Y. State Rep. 374), 383. 
 Lawrence v. Stearns (79 Fed. Rep. 878), 
 
 111. 
 Lawson v. Conaway (37 W. Va. 159), 
 
 571. 
 Lawton v. Sayles (40 Hun, 253), 156. 
 Lawyer v. Choate (93 Wis. 583), 167. 
 Layborn v. Crisp (4 M. & W. 830), 417. 
 Lay Grae v. Peterson (3 Sandf. 838), 
 
 143. 
 Lazarus v. McGuirk (43 La. Ann. 194), 
 
 118. 
 Lazarus v. Metropolitan El. R. Co. (5 
 
 App. Div. 398, 69 Hun, 190, 53 
 
 N. Y. State Rep. 31), 683. 
 Lazarus v. Phelps (156 U. S. 202), 110. 
 Lazier v. Wescott (36 N. Y. 146), 184. 
 Lazoin v. Orleans Nav. Co. (7 La. Ann. 
 
 683), 230. 
 Leach v. Bancroft (61 N. H. 411), 449. 
 Leader v. Bariy (1 Esp. 358), 434. 
 Leahy v. Rayburn (83 Mo. App. 55), 
 
 174. 
 Leak v. State (61 Ark. 599), 383. 
 Learned v. Tillotson (97 N. Y. 1, 13), 
 
 804, 207. 
 Leavenworth v. Brockway (3 Hill, 
 
 201), 643. 
 
 Le Beau v. People (N. Y., 6 Park. Cr. 
 
 Rep. 176), 83. 
 Lee V. Butler (167 Mass. 426), 644 
 Lee V. Dill (39 Barb. 516), 164. 
 Lee V. State (21 Ohio St. 157), 145. 
 Lee V. Troy Citizens' Gas Light Co. 
 
 (98 N. Y. 115), 46. 
 Lee V. Tinges (7 Md. 315), 696. 
 Leedom v. Lombart (80 Pa. St 381), 
 
 600. 
 Leeds v. Cook (4 Esp. 356), 32, 247. 
 Lees V. Marton (1 Moo. & Rob. 210), 12. 
 Lefevre v. Lefevre (59 N. Y. 434), 391. 
 Lefler v. Field (53 N. Y. 631), 51. 
 Lefler v. Sherwood (21 Hun, 573), 65. 
 Leggett V. Glenn (51 Fed. Rep. 381), 
 
 481. 
 Leggett V. Harding (10 Ind. 414), 333. 
 Leggett T. Tullervey (14 Ex. 301), 108. 
 Lehman v. Tallahassee Mfg. Co. (64 
 
 Al.i. 567), 617. 
 Leiber v. Com. (9 Bush, 11), 455. 
 Leland v. Cameron (31 N. Y. 115), 441. 
 Leonard v. Bolton (148 Mass. 66), 492. 
 Leonard v. Columbia S. N. Co. (84 
 
 N. Y. 53), 358. 
 Leonard v. Corley (43 Miss. 687, 709), 
 
 638. 
 Leonard v. Southern P. Co. (21 Greg, 
 
 555), 257. 
 Leonard v. Smith (34 W. Va. 442), 601. 
 Leonardsville Bank v. Williard (35 
 
 N. Y. 574), 377. 
 Lenoir v. Wilson (86 Ala. 600), 115. 
 Lennon v. Rawitzer (57 Cona 583), 
 
 606. 
 Leport V. Todd (32 N. J. L 124), 635. 
 Lerche v. Brasher (104 N. Y. 157), 175. 
 Leslie V. LesHe (50 N. J. Eq. 155), 33a. 
 Lessee of Cluggage v. Swan (4 Bin. 
 
 150), 441. 
 Lesser v. BookhofE (38 Mo. App. 445), 
 
 475. 
 Letier v. Oskaloosa (41 Iowa, 353), 185. 
 Letts V. Brooks (Hill & Denio Supp. 
 • 36), 627. 
 
 Levin v. Russell (42 N. Y. 251), 164 
 Levy V. Bank of United States (1 
 
 Binn., Pa., 37, 4 Dall. 334), 134 
 Levy y. Scott (115 Cal. 39), 681. 
 
TABLE OF CASES, 
 
 XCVll 
 
 References are to pages. 
 
 Levy V. State (38 Tex. Cr. App. 303), 
 
 33, 357. 
 Levy V. State (6 Ind. 281), 183. 
 Lewis V. Barker (55 Vt 31), 35, 46. 
 Lewis V. Dnane (69 Hun, 28, 53 N. Y. 
 
 State Rep. 818), 495. 
 Lewis V. Flack (31 N. Y. State Rep. 
 
 382, 16 Daly, 340), 519. 
 Lewis V. Few (5 Johns. 4), 67. 
 Lewis V. Harris (31 Ala. 689), 189. 
 Lewis V. Kramer (3 Md. 365), 444. 
 Lewis V. Marshall (5 Pet. 470), 435. 
 Lewis V. McGinnis (30 Fla. 419), 159. 
 Lewis V. Meil-itt (98 N. Y. 306), 163. 
 Lewis V. Palmer (28 N. Y. 378), 343. 
 Lewis V. Sapio (1 M. & M. 89), 573. 
 Lewis V. State (9 Sm. & M., Miss., 115), 
 
 451. 
 Lewis V. State (36 Am. St Rep. 730), 
 
 557. 
 Lewis V. Woodworth (3 N. Y. 513), 
 
 406. 
 Lewis, Baillie & Co. v. Western Assur. 
 
 Co. (49 La. Ann. 658), 68.1. 
 Lewis, Matter of (39 How. Pr., N. Y, 
 
 155\ 708. 
 Lewiston, etc. Co. v. Androscoggin 
 
 "Water-Power Co. (78 Me. 374), 541. 
 Leyeraft v. Dempsey (15 Wend. 83), 
 
 67. 
 L'Herbetts v. Pittsfield Nat. Bank (163 
 
 Mass. 137), 473. 
 Liavan v. Second Ave. R. Co. (13 App. 
 
 Div. 381), 348. 
 Liberty Ins. Co. v. Central Vt Co. (19 
 
 App. Div. 509, 56 Alb. L. J. 96), 
 
 348. 
 Liddell v. Sahline (55 Ark. 637), 333. 
 Liebman v. Pooley (1 Stark. 167), 339. 
 Liggins V. Inge (7 Bing. 683, 693), 653. 
 Lilienthal v. Suffolk Brew. Co. (154 
 
 Mass. 185, 36 Am. St Rep. 334), 
 
 331. 
 Lime Bank v. Hewett (53 Me. 531), 
 
 476. 
 Linch V. Paris Lumber & G. Elevator 
 
 Co. (80 Tex. 33), 545. 
 Linch v. Litchfield (141 111. 469), 194. 
 Lincoln v. Battelle (6 Wend. 475), 339. 
 Lincoln v. Clafin (7 Wall. 133), 13. 
 
 Lincoln v. Hinzey (51 111. 485), 311. 
 Lincoln V. Smith (38 Neb. 762), 355. 
 Lincoln v. Tower (2 McLean, 473), 111. 
 Lindauer v. Meyborg (37 Mo. App. 
 
 181), 485. 
 Lindengreen Furniture Co. v. Mead 
 
 (Minn., 44 N. W. Rep. 306), 267. 
 Lindley v. Waterloo First Nat Bank 
 
 (76 Iowa, 639), 43. 
 Lindsay v. People (63 N. Y. 143), 540. 
 Lindsey v. Attorney-General (33 Wis.. 
 
 508), 190. 
 Lindsey v. Canadian P. R. Co. (68 Vt. 
 
 656), 15. 
 Lindsley v. Lovely (36 Vt 133), 321,, 
 
 709. 
 Lingo V. State (39 Ga. 470), 104. 
 Link V. Sheldon (136 N. Y. 1, 48 N. Y. 
 
 State Rep. 830), 503. 
 Linnell v. Sutherland (11 Wend. 568)^ 
 
 465. 
 Linton v. Unexcelled Fireworks Co. 
 
 (138 N. Y. 673, 33 N. Y. State Rep> 
 
 1108), 11. 
 Lipcomb v. Lipcomb (33 S. C. 343),. 
 
 333. 
 Lipe V. Becker (1 Den. 568), 53. 
 Litch V. Clinch (136 111. 410), 840. 
 Little V. Palister (4 Me. 209), 436. 
 Littlefield v. Littlefield (51 Wis. 23,. 
 
 38), 301. 
 Little Rock & M. R. Co. v. Shoecraft 
 
 (50 Ark. 465), 550. 
 Littleton v. Richardson (84 N. H. 179),. 
 
 113. 
 Livermore v. Fitchburg R. Co. (163. 
 
 Mass. 133), 349. 
 Liverpool Wharf v. Prescott (7 Allen, 
 
 494\ 127. 
 Livingston v. Arnoux (56 N. Y. 507,. 
 
 519), 441, 456. 
 Livingston v. Cox (8 Watts & Serg.. 
 
 61), 477. 
 Livingston v. Hall (73 Md. 386), 655. 
 Livingston v. Kiersted (10 Johns. 363),. 
 
 139. 
 Livingston v. Roberts (18 Fla. 70), 35.. 
 Livingston's Appeal (63 Conn. 68),, 
 
 369. 
 Lloyd V. Barr (11 Pa. St 41), 113. 
 
XCVIU 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Lloyd V. Matthews (155 U. S. 233), 183. 
 Lobdell V. Lobdell (36 N. Y. 320), 149. 
 Lock V. Rowell (47 N. H. 46), 370. 
 Lockhart v. Fessenioh (58 Wis. 588), 
 
 47. 
 Lockwood V. Rose (135 Ind. 588), 497. 
 Loder v. Whelpley (111 N. Y. 239, 19 
 
 N. Y. State Rep. 631), 86, 99. 
 Loegrove v. State (31 Tex. Crim. Rep. 
 
 491), 362. 
 Logan V. Berkshire Apart. Ass'n (52 
 
 N. Y. State Rep. 133), 14. 
 Logan V. United States (144 U. S. 363), 
 
 140, 516. 
 Logan V. Wabash W. R Co. (43 Mo. 
 
 App. 71), 613. 
 Loggins V. State (8 Tex. App. 434, 444), 
 
 204. 
 Lohman v. People (1 N. Y. 379), 82. 
 Lohr V. Philipsburg (165 Pa. St 109), 
 
 18. 
 Loker v. Campbell (163 Mass. 242), 7. 
 Lonard v. Kingsley (50 Cal. 628), 34. 
 Londonderry v. Andover (28 Vt 418), 
 
 433. 
 Lonergan v. Buford (148 U. S. 587, 47 
 
 Alb. L. J. 454), 273, 673. 
 Long V. Champion (3 B. & Ad. 284), 
 
 333. 
 Long V. Davis (18 Ala. 801), 326. 
 Long V. Drew (114 Mass. 77), 250. 
 Long V. J. K. Armsby Co. (43 Mo. 
 
 App. 353), 369. 
 Long V. Steiger (8 Tex. 460), 697. 
 Loomis V. Wadhams (8 Gray, 557, 
 
 562), 334, 333. 
 Loos V. Wilkinson (110 N. Y. 195, 18 
 
 N. Y. State Rep. 110), 508. 
 Loper V. Welch (3 Duer, 644), 58. 
 Lopez V. State (30- Tex. 487), 139. 
 Lord Nevill v. Fine Art & G. Ins. Co. 
 (H. L. E. 1897, A. 0. 68, 75 Law T. 
 Rep. 606), 695. 
 Lorenzana v. Camarillo (45 Cal. 135), 
 
 199. 
 Lorillard v. Clyde (123 N. Y. 41, 33 
 
 N. Y. State Rep. 303), 118. 
 Loth V. Frederick (95 Mich. 598), 158. 
 Lou Jen v. Blythe (16 Pa. St. 533', 485. 
 Louden v. Walpole (1 Ind. 331), 033. 
 
 Louder v. Schluter (78 Tex. 103), 428. 
 Loudoun V. Eighth Ave R. Co. (16 
 
 App. Div. 153), 539. 
 Louisville Banking Co. v. Leonard (11 
 
 Kj. L. Rep. 917), 333. 
 Louisville Jeans C. Co. v. Lischkoff 
 
 (109 Ala. 136), 679. 
 Louisville, E. & St L. R. Co. v. Hart 
 
 (3 Ind. App. 130), 10. 
 Louisville, K A. etc. R. Co. v. Cox (80 
 
 111. App. 380), 680. 
 Louisville, N. A. etc. R. Co. v. Hen- 
 dricks (138 Ind. 463), 546. 
 Louisville, N. A. etc. R Co. v. Taylor 
 
 (136 Ind. 136), 609. 
 Louisville, N. A. & C. R Co. v. Nicho- 
 lai (Ind. App., 45 Alb. L. J. 413), 
 611. 
 Louisville, N. A. & C. R Co. v. Reyn- 
 olds (11 Ind. 170), 71. 
 Louisville & N. R Co. v. Manchester 
 
 Mills (88 Tenn. 653), 286, 612. 
 Louisville & N. R. Co. v. Watson (90 
 
 Ala. 68), 546. 
 Louisville & N. R Co. v. Wynne (88 
 
 Tenn. 330), 613. 
 Loveden v. Loveden (3 Hagg. C. R 1), 
 
 661. 
 Lovejoy v. Chapman (33 Oreg. 33), 333. 
 Loveless v. Manhattan Ry. Co. (57 N. 
 
 Y. Super. Ct 3), 543. 
 Lovell V. Earle (127 Mass. 5-16), 57. 
 Lovell V. Smith (3 C. B., N. S., 130), 
 
 652. 
 Loveridge v. Hill (96 N. Y. 333), 85, 
 
 133. 
 Loverin v. McLaughlin (161 111. 417), 
 
 379. 
 Lowe V. Greenwood (30 111. App. 184), 
 
 41. 
 Lowe V. Lowe (40 Iowa, 330), 698. 
 Lowe V. State (88 Ala. 8), 330. 
 Lowenstein v. Salinger (63 Hun, 633, 
 
 43 N. Y. State Rep. 414), 641. 
 Lowenstein's Estate (51 N. Y. State ' 
 
 Rep. 423), 95. 
 Lowman, Matter of (1895, 8 Ch. 348), 
 
 183. 
 Lowrey v. Robinson (141 Pa. St 189), 
 639. 
 
tABLE OF CASES. 
 
 XCIX 
 
 References are to pages. 
 
 Lowry v. Hatley (30 III. App. 297), 
 
 655. 
 Lowry v. Moss (1 SWobh. 63), 456. 
 Loyd V. State (TO Miss. 251), 491. 
 Lucas V. Brooks (18 Wall. 486), 133. 
 Lucas V. De La Cour (1 M. & S. 249), 
 
 202. 
 Lucas V. Novisilienskl (1 Esp. 396), 
 
 873. 
 Luco V. De Toro (91 Cal. 405), 512. 
 Ludlam v. Ludlam (20 N. Y. 363), 
 
 394. 
 Luetchford v. Lord (132 N. Y. 465), 
 
 154. 
 Luetgert v. Volkei- (153 111. 385), 17. 
 Lumley v. Wabash E. Co. (71 Fed. 
 
 Rep. 21), 191. 
 Lumpkin v. Murrell (46 Tex. 51), 189. 
 Lumpkin v. State (68 Ala. 56), 145. 
 Lund V. Lund (1 N. H. 39), 715. 
 Lund V. Tyngsborongh (9 Cush. 36), 
 
 490. 
 Lurie v. Eadnitzer (166 111. 609), 461, 
 
 520. 
 Lustig V. N. Y., L. E & W. R. Co. (48 
 
 N. Y. State Rep. 916, 65 Hun, 548), 
 
 553. 
 Lute V. Compton (77 Wia 587), 435. 
 Lutterloh v. Mcllhenny Co. (74 Tex. 
 
 73), 410. 
 Lycoming Mutual las. Co. v. Sailor 
 
 (67 Pa. St. 108, 112), 269. 
 Lynch v. Boran (95 Mich. 395), 554. 
 Lynch v. Free (64 Minn. 277), 707. 
 Lynch V. Hunneke' (46 N. Y. State 
 
 Rep. 868), 332. 
 Lyle V. EUwood (19 Eq. 98), 435. 
 Lyman v. Boston & M. R. Co. (11 
 
 L. R A. 364), 610. 
 Lyndsay v. Coiinecticut & Pass. River 
 
 R. Co. (2TVt. 643), 606. 
 Lyne v. Sandford (82 Tex 58), 603. 
 Lyon V. Priouty (154 MaBS. 488), 104. 
 Lyon V. Ricker (141 N. Y. 235), 171, 
 
 460. 
 Lyofls v. Gregory (3 Hen. & Hurif. 
 
 337), 335. 
 Ly&ns V. Mitler (6 Gi-att. 440); 317. 
 Lytle V. Lansiog^ (14? U. & 59), 138, 
 
 367. 
 G 
 
 M. 
 
 McAdory v. State (59 Ala. 93), 588. 
 McAffee v. State (85 Ga. 438), 334. 
 McAndrews v. Santee (57 Barb. 193), 
 
 199. 
 McAteer v. McAteer (81 S. C. 313), 
 
 396, 809. 
 McBride v. McBride (82 Ga. 714), 165. 
 McCabe v. Raney (32 Ind. 309), 133. 
 McCain v. Peast (145 Pa. St. 516), 464. 
 McCaldin v. Parks (142 N. Y. 564, 60 
 
 N. Y. State Rep. 397), 553. 
 McCall V. Pry or (17 Ala. 533), 650. 
 McCampnt v. Roberts (80 Tex. 316), 34. 
 McCannon v. Sinclair (3 E. & E. 53), 
 
 653. 
 McCarraghan v. Rogers (130 N. Y. 
 
 556, 31 N. Y. State Rep. 595), l.j. 
 McCartee v. Camel (1 Barb., N. Y., 
 
 Ch. 455), 638. 
 McCarthy v. Gallagher (53 N. Y. State 
 
 Rep. 176), 14. 
 McCarthy V. McCarthy (143 N. Y. 
 
 335), 105. 
 McCarthy v. Wells (51 Hun, 171, 20 
 
 N. Y. State Rep. 680), 542. 
 McCasker v. Banks' (84 Md. 392), 564. 
 McCasker v. Enright (64 Vt. 488), 14. 
 McCauley v. Fulton (44 Cal. 355, 47 
 
 Fed. Rep. 154), '613. 
 McCauley v. Murphy (96 Ga. 475), 563. 
 McCay t. Curtice (9 Wend. 17), 264. 
 McCay v. Galloway (3 Ohio, 283), 450. 
 McCelry v. Noble (12 Rich. 167), 313. 
 McClain v. Brooklyn City R Co. (116 
 
 iSf. Y. 459, 37 N. Y. State Rep. 549), 
 
 5295 569. 
 McClaSkey v. Barr (47 Fed. Rep. 154), 
 
 253, 601, 613. 
 McCIaskey v. Barr (79 Fed. Rep. 408), 
 
 113.' 
 McClaskey v. McCormick 01 111. 66), 
 
 320. 
 McClintock v. Hughes Bros. Mfg. Co. 
 
 (39'Tex. App. IS), 271. 
 McClure v. Goodenough (19 Ciy. Pro. 
 
 Rep., N; Y., 1«1), 86. 
 MoCollock V. Dobson (133 N. Y. 114), 
 
TABLE OF CASES. 
 
 References 
 
 McComtnon v. McCommon (151 IlL 
 
 488), 206. 
 McCommon v. Waldes (153 Mass. 487), 
 
 587. 
 McConnell v. Osage (80 Iowa, 293), 
 
 546. 
 McCormack v. Molburg (43 Iowa, 561), 
 
 135. 
 McCormack v. Perry (47 Hun, 71, 14 
 
 N. Y. State Rep. 154), 561. 
 McCormick v. Barnum (10 Wend. 
 
 105), 449. 
 McCormick v. Penn. C. R. Co. (49 
 
 N. Y. 303), 471. 
 McCormick v. Sarson (38 How. Pr. 
 
 190), 56. 
 McCormick v. Smith (137 Ind 330), 
 
 586. 
 McCormick H. M. Co. v. Heath (65 
 
 Mo. App. 461), 173. 
 McCormick H. M. Co. v. Wilson (39 
 
 Minn. 467), 67. 
 McCorquodale v. Bell (1 C. P. D. 471), 
 
 91. 
 MoCrady v. Jones (36 S. C. 136), 464. 
 McCready v. Virginia (94 U. S. 391), 
 
 654. 
 McCue V. Knoxville (146 Pa. St. 480), 
 
 569. 
 McCullom V. Seward (53 N. Y. 816), 
 
 533. 
 McCune v. McMichael (20 Ga. 313), 
 
 132. 
 McDade v. Mead (18 Ala. 314), 333. 
 McDaniel v. State (8 Sm. & M 401), 
 
 22. 
 McDaniel v. State (53 Ga. 253), 30. 
 McDermott v. Hannibal & St J. R. 
 
 Co. (73 Mo. 516, 39 Am. St Rep. 
 
 536), 488. 
 McDermott v. Hoffman (70 Pa. St 33), 
 
 213. 
 McDermott v. Third Avenue R. Co. 
 
 (44 Hud, 107), 532. 
 McDonald v. Carnes(90 Ala. 147), 444, 
 McDonald v. Hannah (51 Fed. Rep, 
 
 73), 119. 
 McDonald v. Lane (80 Ga. 497), 183. 
 McDonald v. McDonald (142 Ind. 55), 
 
 461, 575. 
 
 are to pages. 
 
 McDonald v. Montgomery St R. Co. 
 
 (110 Ala. 161), 607. 
 McDonald v. Nelson (2 Cow. 139), 600. 
 McDonald v. People (126 IlL 150), 71. 
 McDonald v. Salem C. F. M. Co. (31 
 
 Fed. Rep. 577), 64 
 McDonald v. State (37 N. Y. State 
 
 Rep. 348), 549. 
 McDonald v. Unaka Timber Co. (88 
 
 Tenn. 38), 686. 
 McDonald v. Woodbury (30 Hun, 35), 
 
 161. 
 McDonald's Appeal (147 Pa. St 537), 
 
 601. 
 McDonell v. Buffon (31 How. Pr., N. Y., 
 
 144), 46. 
 McDonough v. Jolly (165 Pa. St 542), 
 
 278. 
 McDonough v. O'Neil (113 Mass. 92), 
 
 631. 
 McDowell V. Ford (87 Mich. 198), 286. 
 McDowell V. Goldsmith (6 Md. 319), 
 
 201. 
 McDuff V. Detroit Eve. Jour. Co. (84 
 
 Mich. 1), 323. 
 McElhenney v. Hendricks (82 Iowa, 
 
 657), 155. 
 McElraurray v. Turner (86 Ga. 315), 
 
 304. 
 McElreney v. Connelan (17 Ir. C. L. 
 
 Eep. 55), 103. 
 McElwee Mfg. Co. v. Trowbridge (68 
 
 Hun, 28, 53 N. Y. State Rep. 64), 
 
 495. 
 McFaddin v. Ellmaker (52 CaL 348), 
 
 201. 
 McFarlan v. Triton Ins. Co. (4 Denio, 
 
 392), 479. 
 McGee v. Stone (9 Cal. 606), 135. 
 McGinness v. State (34 Ind. 500), 189. 
 McGinnis v. Hamilton (58 Conn. 69), 
 
 583. 
 McGinty v. Henderson (41 La. Ann. 
 
 382), 855. 
 McGlone v. Prosser (31 Wis. 373), 196. 
 McGoldrick v. Traphagen (88 N. Y. 
 
 334), 244. 
 McGonigle v. Kane (20 Cal. 292), 550. 
 McGowan v. McDonald (111 Cal. 57), 
 
 699. 
 
TABLE OF CASES. 
 
 CI 
 
 References are to pages. 
 
 McGrath v. Hyde (81 Cal. 38), 70. 
 McGree v. Craven (106 N. C. 351), 296. 
 McGrell & Buffalo Office Bldg. Co. 
 
 (153 N. Y. 265), 339. 
 McGuckin v. Milbank (152 N. Y. 297), 
 
 687. 
 McGufiE V. State (88 Ala. 147), 74. 
 McGuire v. Joslyn (57 Hun, 586, 31 
 
 N. Y. State Rep. 990), 622. 
 MoHarry v. Eastman (7 Robfc, N. Y., 
 
 137), 196. 
 McHorn v. Wheeler (45 Pa. St. 32), 479. 
 McHugh V. Gallagher (1 Tex. Cr. A pp. 
 
 196), 277. 
 Mcllhargy v. Chambers (27 N. Y. State 
 
 Rep. 921, 117 N. Y. 532), 466. 
 Mclnery v. Irwin (90 Ala. 375), 646. 
 Mclntire v. Mclntire (162 U. S. 383), 
 
 328. 
 Mclntyre v. Costello (24 N. Y. State 
 
 Rep. 765), 87. 
 McKay v. Armstrong (84 Tex. 157), 
 
 253. 
 McKay v. Lasher (131 N. Y. 477), 252. 
 McKee v. Nelson (4 Cow. 355), 525. 
 McKelton v. State (88 Ala. 181), 187. 
 McKenna v. Bolger(49 Hun, 279), 163. 
 McKinney v. State (29 Fla. 565, 30 
 
 Am. St. Rep. 140), 637. 
 McKinney v. Railroad Co. (104 N. Y. 
 
 352, 4 N. Y. State Rep. 849), 101. 
 McKinnon v. Bliss (2 N. Y. 206), 421. 
 McKinnon v. Noroross (148 Mass. 533), 
 
 486. 
 McKnight v. Pittsburgh (91 Pa. St 
 
 373), 122. 
 McKyring v. Bull (16 N. Y. 397), 50. 
 McLaughlin v. Webster (141 N. Y. 76), 
 
 161. 
 McLean v. Ellis (79 Tex. 398), 333. 
 McLean v. Hertzog (6 S. & R. 154), 
 
 247. 
 McLean v. McDonnell (1 Q. B., U. C, 
 
 13), 239. 
 McLean v. Schuyler Steam Towboat 
 
 Line (52 Hun, 43, 117 N. Y. 644, 
 
 23 N. Y. State Rep. 313), 530. 
 McLean v. Smith (108 Ala. 533), 34. 
 McLean v. State (16 Ala. 672), 454. 
 McLeary v. Norment (84 N. C. 235), 
 
 573. 
 
 McLeer v. McMurray (58 Pa. St. 126), 
 
 593. 
 McLemore v. Powell (32 S. C. 582), 
 
 520. 
 McLennan v. Longfellow (32 Me. 
 
 494), 85. 
 McLeod V. Ginther (80 Ky. 399), 485. 
 McMath V. State (55 Ga. 303), 505. 
 McMillan v. Baxley (112 N. C. 578), 
 
 244. 
 McMiller v. Sterne (C8 N. Y. State 
 
 Rep. 829), 155. 
 McMinn v. Whelan (27 Cal. 300), 605, 
 
 633. 
 McMuUen v. Carson (48 Kan. 263), 
 
 334. 
 McMurray v. Ennis (38 N. Y. State 
 
 Rep. 489), 163. 
 McMurray v. McMurray (63 Hun, 483, 
 
 45 N. Y. State Rep. 3), 176; 
 McMurrin v. Rigby (80 Iowa, 332, 505), 
 
 257 
 McMurtrie v. Black (180 Pa. St. 64), 
 
 110, 211. 
 McNally v. Colwell (91 Mich. 537), 548. 
 McNally v. The L. P. Dayton (120 
 
 U. S. 337), 609. 
 McNeal v. Pittsburg, etc. Ry. Co. (131 
 
 Pa. St. 184), 705. 
 McNeel v. Auldridge (34 W. Va. 748), 
 
 333. 
 McNeely v. McNeely (47 La. Ann. 1321), 
 
 631. 
 McNerney v. Reading (150 Pa. St 611X 
 
 29, 550. 
 McNight V. McNight(20 Wis. 446), 201. 
 McNulty V. Urban (50 N. Y. State Rep. 
 
 565, 140 N. Y. 660), 301. 
 McNulty's Appeal (135 Pa. St 310), 
 
 108. 
 McPherson v. State (9 Yerg. 272), 453. 
 McPherson v. Western (85 Cal. 90), 
 
 310. 
 McQuarrie v. Brand (38 Ont. Rep. 69), 
 
 311. 
 McVey v. Durkin (136 Pa. St 418), 
 
 435. 
 McWilliams v. Bridges (7 Neb. 419), 
 
 318. 
 Mably v. Kittleberger (37 Mich. 860), 
 
 485. 
 
cu 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Macauley v. Central National Bank 
 
 (27 a C. 215), 150. 
 Machin v. Lamar F. Ins. Co. (90 N. Y. 
 
 689), 536. 
 Mack V. Burt (5 Hun, 28), 44. 
 Mackay v. Riley (135 111. 586), 387. 
 Mackey v. Mutual Aid C. & I. Co. (94 
 
 Ga. 104), 40. 
 Macombe v. Wilkinson (83 Mich. 486), 
 
 300. 
 Macon & B. R Co. v. Stamps (85 Ga. 1, 
 
 43 Am. & Eng. Corp. Cas. 318), 
 
 379. 
 Macy V. Mutual Ina Co. (13 Gray, 
 
 497), 608. 
 Maddox v. Maddox (114 Mo. 35), 369. 
 Madison v. Missouri P. R. Co. (60 Mo. 
 
 App. 599), 51. 
 Magee v. Atkinson (2 M. & W. 440), 
 
 317. 
 Magee v. People (139 III. 138), 28. 
 Magee v. Troy (119 N. Y. 640, 16 N. Y. 
 
 State Eep. 336), 567. 
 Maghee v. Camden & Amboy R Co. 
 
 (45 N. Y. 514), 188. 
 Magnolia v. Marshall (39 Miss. 109), 
 
 654. 
 Magoffin V. Missouri P. R Co. (103 
 
 Mo. 540), 609. 
 Maguire v. Middlesex R R Co. (115 
 
 Mass. 339), 499. 
 Mahanke v. Cleland (76 Iowa, 401), 84. 
 Mahar v. N. Y. C. & H. R R Co. (20 
 
 App. Div. 161), 567. 
 Maher v. Hibernia Ins. Co. (67 N. Y. 
 
 283), 53. 
 Maher v. Manhattan R Co. (53 Hun, 
 
 506, 36 N. Y. State Rep. 743), 618. 
 Mahler v. Norwich & N. Y. Tj-ans, Co. 
 
 (35 N. Y. 358), 654. 
 Maines v. Henry (76 Ala. 454), 307. 
 Malcolm v. Puller (153 Mass. 160), 559. 
 Malcolm v. Ohio Farmers' Ins. Co. (90 
 
 Mieh. 113),%81. 
 Malcomson v. O'Dea (10 H. L. C. 593, 
 
 618), 447, 653. 
 Malone v. Duff (73 Md. 283X 35. 
 Maloney v. Woodin (11 Htm, 302), 383. 
 Maloy V. Dunden (77 Fed. Rep. 935), 
 
 113. 
 
 Man V. Show (56 Hun, 647, 33 N. Y. 
 
 State Rep. 356), 233. 
 Managhan v. Agri. F. Ins. Co. (53 
 
 Mich. 238), 67. 
 Manchester Ey. Co. v. Concord Ry. 
 
 Co. (30 Atl. Rep. 383), 75. 
 Manchester v. Massachusetts (139 U. S. 
 
 240), 354, 654. 
 Manchester v. Tibbetts (131 N. Y. 219, 
 
 30 N. Y. State Eep. 731), 601. 
 Mandel v. Swan L. & C. Co. (154 111. 
 
 177), 466. 
 Mandeville v. Reynolds (68 N. Y. 528), 
 
 .53, 117. 
 Mandeville v. Welch (5 Wheat 377). 
 
 301. 
 Mann v. Fairchild (3 Abb. Ct. App. 
 
 Deo. 153), 374. 
 Mann v. Forein (166 111. 446), 153, 
 
 160. 
 Mann v. Mann (1 Johns. Ch. 231), 389. 
 Mann v. Nunn (43 L. J. C. P. 241), 
 
 324. 
 Mann v. Palmer (3 Abb. Ct. App. Dec 
 
 162), 47. 
 Mann Boudoir Car Co. v. Dupre (54 
 
 Fed. Eep. 646, 47 Alb. L. J. 446), 
 
 197, 827. 
 Manning v. Tyler (31 N. Y. 567), 50. 
 Manning v. Dem (Cal., 34 Pac. Rep. 
 
 1093), 584. 
 Manning v. John Hancock Mut Life 
 
 Ins. Co. (100 U. S. 693), 593. 
 Manning v. Maas (50 N. Y. State Rep. 
 
 759), 677. 
 Manning v. Maroney (87 Ala. 563, 18 
 
 Am. St Rep. 67), 354. 
 Manning v. Schmidt (4 App. Div. 131), 
 
 156. 
 Manning v. Weeks (139 U. S. 504), 404. 
 Manning v. Winter (7 Hun, 483), 56. 
 Mansfield v. Turner (4 Hun, 133), 61. 
 Manufacturing Co. v. Elizabeth (42 
 
 N. J. L. 349), 131. 
 Manufacturing Cb. v. Smith (34 Conn. 
 
 462), 653. 
 Manufacturers' Nat Bank v. Brock (3 
 
 Abb., U. S., 282), 593. 
 Marbury v. Madison (1 Crancb, 144), 
 
 84, 103. 
 
TABLE OF CASES. 
 
 cm 
 
 References are to pages. 
 
 March v. Harrell (1 Jones' L., N. C, 
 
 339), 25. 
 Marchaud v. Grififon (140 U. S. 516), 
 
 300, 497. 
 Marclay v. Shultz (29 N. Y. 346), 468, 
 
 676. 
 Marcy v. Amazeen (61 N. H. 131), 164. 
 Marcy v. Howard (91 Ala. 133), 155. 
 Marcy v. Stone (8 Gush. 4), 456. 
 Marile v. Akron (14 Ohio, 586), 344. 
 Markell v. Benson (55 How. Pr., N. Y., 
 
 360), 165. 
 Markowitz v. Kansas City (125 Mo. 
 
 485), 686. 
 Marks v. King (64 N. Y. 628), 700. 
 Marlor v. State (57 Ala. 55), 145. 
 Mannet Co. v. Archibald (37 W. Va. 
 
 778), 273. 
 Marrow v. Brinkley (85 Va. 55), IIC. 
 Marrow v. Cora. (48 Pa. St 305, 308), 
 
 247. 
 Marsh v. Brown (18 Hun, 319), 150, 
 
 165. 
 Marsh v. Case (30 Wis. 531), 465. 
 Marsh v. Dodge (66 N. Y. 533), 45. 
 Marsh v. McNair (99 N. Y. 174), 339. 
 Marshall v. Bringle (36 Mo. App. 122), 
 
 530. 
 Marshall v. Brown (50 Mich. 148), 573. 
 Marshall v. Chicago, etc. R Co. (48 
 
 111. 475), 455. 
 Marshall v. Hancock (80 Cal. 83), 576. 
 Marshall v. Oakes (51 Me. 309), 637. 
 Marshall v. State (74 Ga. 26), 667. 
 Marshall 7. Ullswater Steam Nav. Co. 
 
 (3 B. & S. 570), 653. 
 Marston v. Butler (3 Wend. 149), 637. 
 Marston v. Swett (66 N. Y. 206 >, 53. 
 Marston v. Baerenklau (67 N. Y. State 
 
 Rep. 844), 55 
 Marston v. Dingley (88 Mo. 546), 636. 
 Marston v. Downes (1 A. & E. 31), 241. 
 Martin v. Adams (39 S. C. 597), 151. 
 Martin v. Cooper (87 Cal. 97), 347. 
 Martin v. Cope (3 Abb. Ct App., N. Y., 
 
 183), 476. 
 Martin v. Delaney (47 La. Ann. 719), 
 
 686. 
 Martin v. Fox (40 Mo. App. 664), 620. 
 Martin v. Franklin (42 N. J. L. 46), 
 
 564. 
 
 Martin v. Fridenberg (169 Pa. St. 447), 
 
 297. 
 Martin v. Judd (60 111. 78), 111. 
 Martin v. McAdams (87 Tex. 225), 163. 
 Martin v. Payne (11 Tex. 292), 339. 
 Martin v. Pycrof t (3 De G., M. & G. 
 
 785, 795), 330. 
 Martin v. Railroad Co. (108 N. Y. 636), 
 
 495. 
 Martin v, Righter (10 N. J. Eq. 510), 
 
 132, 126. 
 Martin v. Shannon (93 Iowa, 374), 163. 
 Martin v. Windsor Hotel Co. (70 N. Y. 
 
 103), 31. 
 Martin v. Zellerbach (38 Cal. 300), 186. 
 Martinet v. Maczkewez (59 N. J. L. 
 
 11), 681. 
 Marx V. Manhattan R Co. (31 N. Y. 
 
 914, 56 Hun, 575), 98, 100, 101. 
 Marx V. People (63 Barb. 618), 31. 
 Maryland v. Baldwin (113 U. S. 490), 
 
 434, 453. 
 Maryland v. B. & O. R Co. (33 Wall. 
 
 105, 113), 268. 
 Mary Lee Coal Co. v. Chambliss (53 
 
 Am. & Eng. R Cas. 254), 355. 
 Mask V. State (32 Miss. 405, 427), 709. 
 Mason v. Henry (152 N. Y. 529), 347. 
 Mason v. Hunt (Doug. 296), 315. 
 Mason v. McCormack (85 N. C. 326), 
 
 449. 
 Mason v. Pendergast (130 N. Y. 536), 
 
 158. 
 Mason v. Richmond & D. R Co. (Ill 
 
 N. C. 482), 197. 
 Masonic Temple Ass'n v. Channell (43 
 
 Minn. 353), 332. 
 Masons v. Fuller (45 Vt 29), 426. 
 Masters v. Troy (133 N. Y. 638, 30 N. Y. 
 
 State Rep. 273), 15. 
 Masterson v. Le Clair (4 Minn. 163), 
 
 193. 
 Mather v. Parsons (32 Hun, 338), 531. 
 Mathews v. Buckingham (33 Kan. 
 
 166), 362. 
 Mathews v. Hoagland (48 N. J. Eq. 
 
 455), 155. 
 Mathews v. Paythreas (4 Ga. 387), 813, 
 
 364. 
 Math is V. State (35 Ga. 24), 84. 
 Mathris v. Mazet (164 Pa. St. 580), 693. 
 
CIV 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Matter of Arnold (14 Hun, 525), 555. 
 Matter of Brown (38 N. Y. State Rep. 
 
 130), 164 
 Matter of Burnsee (141 N. T. 387), 152. 
 Matter of Callister (153 N. Y. 294), 155. 
 Matter of Coleman (111 N. Y. 220), 87, 
 
 98. 
 Matter of Clark (82 Hun, 341), 164. 
 Matter of Consalus (95 N. Y. 340), 368. 
 Matter of Darragh (52 Hun, 591), 96. 
 Matter of Eysaman (113 N. Y. 62), 152. 
 Matter of Frazer (93 N. Y. 239), 150, 
 
 159. 
 Matter of Freeman (46 Hun, 458), 98. 
 Matter of Gallagher (153 N. Y. 364), 
 
 160. 
 Matter of Hanley (44 Hun, 559), 152. 
 Matter of Hesdra (119 N. Y. 615), 25. 
 Matter of Hoyt (20 Abb. N. C, N. Y., 
 
 163), 96. 
 Matter of HumfrevUle (6 App. Div. 
 
 533), 163. 
 Matter of Huss (126 N. Y. 537, 37 N. 
 
 Y State Rep. 789), 625, 643. 
 Matter of Keleman (126 N. Y. 73, 36 
 
 N. Y. State Rep. 390), 280. 
 Matter of Kellogg (104 N. Y. 648), 159. 
 Matter of Lasak (131 N. Y. 624). 164. 
 Matter of Lewis (5 App. Div. 178), 153. 
 Matter of Mason (60 Hun, 46, 38 N. Y. 
 
 State Rep. 533), 33. 
 Matter of McCarthy (55 Hun, 7), 89. 
 Matter of McNeany (5 App. Div. 436), 
 
 155. 
 Matter of N. Y. C. & H. R. R. Co. 
 
 (90 N. Y. 342), 163. 
 Matter of Paige (62 Barb. 476), 157. 
 Matter of Potter (17 App. Div. 367), 
 
 164. 
 Matter of Simpson (34 N. Y. State 
 
 Rep. 685), 160. 
 Matter of Smith (96 N. Y. 661), 164. 
 Matter of Smith (153 N. Y. 124), 168. 
 Matter of Stewart (24 N. Y. State Rep. 
 
 322), 164. 
 .Matter of Will of Dunham (120 N. Y. 
 
 575), 161. 
 Matter of Will of Smith (95 N. Y. 516), 
 
 163. 
 Matter of Will of Snelling (136 N. Y. 
 
 55), 37. 
 
 Matter of Wood (32 N. Y. State Rep. 
 
 286), 635. 
 Matter of Zinke (90 Hun, 137), 157. 
 Mattes V. Frankel (47 N. Y. State Rep. 
 
 507, 65 Hun, 303), 835. 
 Matteson v. N. Y. Cent. R. Co. (63 
 
 Barb. 364), 501. 
 Matteson v. N. Y. Cent R. Co. (35 
 
 N. Y. 487), 504. 
 Matthews v. Bates (93 Ga. 319), 53. 
 Matthews v. Chicopee Mfg. Co. (3 
 
 Robt., N. Y, 711), 48. 
 Matthews v. Dare (30 Md. 248), 125. 
 Matthews v. Dubuque Mattress Co. 
 
 (97 Iowa, 246), 272. 
 Matthews v. Light (40 Me. 394), 638. 
 Mattison v. Chicago, R. L & P. R. Co. 
 
 (43 Neb. 545), 265. 
 Mattox V. United States (146 U. S. 
 
 140), 451, 455. 
 Maugham v. Hubbard (8 B. & C. 14, 
 
 16;, 331, 699. 
 Maverick v. Marvel (90 N. Y. 656', 
 
 175. 
 Maxwell v. Chapman (8 Barb. 579), 
 
 397. 
 Maxwell v. BoUes (38 Greg. 1), 714. 
 Maxwell Land Grant Co. v. Dawson 
 
 (151 U. S. 279), 448. 
 Maxwell V. Reed (7 Wis. 583), 123. 
 May V. May (36 111. App. 77), 309. 
 May V. May (158 III. 309), 328. 
 May V. State (38 Tex. Crim. Reix 74), 
 
 669. 
 May V. Taylor (6 M. & G. 361), 315. 
 Mayer v. Erhard (88 111. 453), 123. 
 Mayer v. Fraukfeld(85 Hun, 314), 323. 
 Mayer v. Milwaukee Street R Co. (90 
 
 Wis. 120), 18. 
 Mayfield v. Savannah, G. & N. A. E. 
 
 Co. (87 G.1. 374), 549, 551. 
 Maynard v. Render (95 Ga. 652), 280. 
 Maynard v. Thompson (8 Wend.,393), 
 
 331. 
 Maynard v. yinton (59 Mich. 139, 60 
 
 Am. Dec. 276), 104, 107. 
 Mayor v. Dean et al. (115 N. Y. 556, 36 
 
 N. Y. State Rep. 375). 356. 
 Mayor v. Fidelity Mut Ins. Ass'n (47 
 
 U. S. App. 323), 656. 
 Mayor v. Old (57 Mo. App, 639), 178. 
 
TABLE OF CASES. 
 
 cv 
 
 References are to pages. 
 
 Mayor and Corporation of Bristol v. 
 
 Cox (36 Cii. D. 678), 91. 
 Mayor of Hull v. Homer (Cowp. 103), 
 
 647. 
 Mays V. Pryce (95 Mo. 603), 67. 
 Meacham v. Poll (51 N. Y. 65), 471. 
 Mead v. Keeler (34 Barb. 20), 379. 
 Mead v. Weaver (43 Neb. 149). 173. 
 Mead v. McDowell (5 Binn. 195), 211. 
 Mealer v. State (33 Tex. Crim. Rep. 
 
 103), 670. 
 Mears v. Cornwall (73 Mich. 78), 199. 
 Mears v. Graham (8 Blackf., Ind., 144), 
 
 601. 
 Meath v. Winchester (3 Bing. N. C. 
 
 183, 200), 233. 
 Mechanics' Bank v. Foster (29 How. 
 
 Pr., N. Y., 408), 50. 
 Mechanics' Bank v. Gibson (7 Wend. 
 
 460), 189. 
 Medliu V. Wilkins (1 Tex. Cr. App. 
 
 465), 715. 
 Medlock v. Miller (94 Ga. 652), 148. 
 Meech v. Smith (7 Wend. 315), 599. 
 Meer v. Stevens (13 Kan. 116), 69. 
 Megary v. Funtis (5 Sandf. 376), 370. 
 Meguire v. Cornevine (3 MacA., D. C, 
 
 81), 204. 
 Meher v. Dobbs (47 Neb. 863), 117. 
 Meir v. Kelly (20 Oreg. 86), 263. 
 Melanefy v. Morrison (153 Mass. 473), 
 
 553. 
 Melhuish v. Collier (15 Q. B. 878), 36. 
 Melick V. State (Tex., 24 S. W. Rep. 
 
 417), 560. 
 Melish V. Wood (34 Pa. St 451), 685. 
 Mell V. Earner (185 Pa. St. 151), 154. 
 Mellor V. Missouri P. R Co. (105 Mo. 
 
 455), 99. 
 Mendenhall v. Davis (73 N. C. 150), 
 
 336. 
 Menominee River Sash & D. Co. v. 
 
 Milwaukee & N. P. R Co. (91 Wis. 
 
 447), 191. 
 Mercantile Bank v. Taylor (1893, A. C. 
 
 317), 307. 
 Mercantile Nat Bank v. Carpenter 
 
 (101 U. S. 567), 47. 
 Mercer v. Whall (5 Q. B. 447), 339. 
 Mercer v. Woodgate (L. R 5 C. P. ^6), 
 
 650. 
 
 Merchants' Bank v. State (10 Wall. 
 
 604), 375. 
 Merchants', etc. Co. v. Leysor (89 111. 
 
 43), 208. 
 Merchants' & F. Nat Bank v. McEI- 
 
 wee (104 N. C. 315), 301. 
 Merchants' & P. Nat Bank v. Trustees 
 
 (63 Ga. 371), 364. 
 Merchants' Nat Bank of Whitehall v. 
 
 Hall (83 N. Y. 346), 398. 
 Merideu Nat Bank v. Gallaudet (120 
 
 N. Y. 398), 408. 
 Merle v. Matthews (26 Cal. 455), 336. 
 Merle v. Moore (Ry. & M. 390), 251. ' 
 Merrick v. Brainard (38 Barb. 574), 373. 
 Merrifield v. Robbins (8 Gray, 150). 338. 
 Merrill v. Brunner (9 N. Y. State Rep. 
 
 47), 156. 
 Merrill v. Consumers' Coal Co. (114 
 
 N. Y. 216), 70. 
 Merrill v. Conn. F. Ins. Co. (95 Ga. 
 
 604, 30 L. R. A. 835), 279. 
 Merritt v. Baldwin (6 Wis. 439), 604. 
 Merritt v. Batholick (36 Barb. 574). 373. 
 Merritt v. Briggs (57 N. Y. 651), 56. 
 Merritt v. Campbell (79N..Y. 625), 165. 
 Merritt v. Thompson (J Hilt, N. Y., 
 
 550), 630. 
 Mersereau v. Ryerss (3 N. Y. 261), 60. 
 Mersman v. Mersman (136 Mo. 244), 
 
 521. 
 Mertz V. Brooklyn (128 N. Y. 617, 33 
 
 N. Y. State Rep. 577), 193. 
 Messick v. Midland R Co. (128 Ind. 
 
 81), 380. 
 Messimer v. McCrary (113 Mo. 383), 
 
 159. 
 Metropolitan Trust Co. v, Tonawanda 
 
 V. & R Co. (43 Hun, 531), 66. 
 Metropolitan West Side El. R Co. v. 
 
 White (166 ni. 375), 683. 
 Metters v. Brown (1 H. & C. 686, 689), 
 
 650. 
 Metzger v. Manchester F. Assur. Co. 
 
 (103 Mich. 334), 077. 
 Meyer v. Campbell (48 N. Y. State 
 
 Rep. 666), 34. 
 Meyer v. Hunt (38 N. Y. .89, 60 Hun, 
 
 579), 176. 
 Meyer v. Lathrop (73 N. Y, 315), 71. 
 Meyer v. Lofton (2 Stark. 274), 340, 
 
CVl 
 
 TABLE OF CASES. 
 
 Eeferences are to ptfffes. 
 
 Meyer v. Standard L. & A. Ins. Co. (8 
 
 App. Div. 74), 95. 
 Meyers v. Bealer (30 Neb. 280), 224. 
 Meyers v. Boyd (44 Mo. App. 378), 
 
 407. 
 Meyers v. Dorman (34 Hun, 115), 85. 
 Michael v. State (94 Ala. 68), 857. 
 Michaels v. Olmstead (157 U. S. 198), 
 
 297. 
 Middlebury v. Case (6 Vt 165), 313. 
 Middleton v. Massachusetts (2 Nott & 
 
 McU. 55), 446. 
 Middleton v. Pritchard (3 Scam., 111., 
 
 510), 654. 
 Miles V. Eddy (6 C. & P. 732), 341. 
 Miles V. Loomis (75 N. Y. 388), 580. 
 Millard v. McMullen (68 N. Y. 845), 
 
 121. 
 Millbanks v. Jones (137 N. Y. 370), 43. 
 Miller v. Adkins (9 Hun, 9), 166. 
 Miller v. Baumgardner (109 N. C. 412), 
 
 624. 
 Miller v. Bingham (39 Vt 82), 212. 
 Miller v. Clark (40 Fed. Rep. 15), 520. 
 Miller v. Earle (24 N. Y. 110), 116. 
 Miller v. Highland Ditch Co. (87 Cal. 
 
 430), 406. 
 Miller v. Indianapolis (133 Ind- 196), 
 
 186. 
 Miller v. Long (99 Mass. 13), 130. 
 Miller v. Louisville, N. A. etc. E. Co. 
 
 (138 Ind. 97), 583. 
 Miller v. Meers (155 III. 284), 171. 
 Miller v. Montgomery (78 N. Y. 282), 
 
 166. 
 Miller v. Preble (142 Ind. 633), 699. 
 Miller v. Rowan (108 Ala. 98), 301. 
 Miller v. State (31 Tex. Cr. Rep. 609), 
 
 494. 
 Miller v. State (25 Wis. 84), 453. 
 Miller v. State (27 Tex. App. 63), 451. 
 Miller v. State (68 Miss. 221), 203. 
 Miller v. Traverse (8 Bing. 348), 280. 
 Miller v. Wilson (136 Mo. 48), 148. 
 Miller-Clayton Electric Light Co. v. 
 
 McKeesport & W. R. Co. (179 Pa. 
 
 St. 850), 380. 
 Milliken v. Martin (66 111. 13), 644. 
 Milliken v. Western U. Tel. Co. (110 
 
 N. Y. 403), 54. 
 
 Mills V. Allen (1B8 IT. S. 433), 300. 
 Mills V. Davis (118 N. Y. 243), 156. 
 Mills V. Graves (88 111. 455), 121. 
 Mills V. Halock (3 Edw. Ch. 652), 389. 
 Mills V. Kernooham (3 N. Y. State 
 
 Rep. 153), 165. 
 Mills V. Oddy (6 C. & P. 728, 733), 352. 
 Mills V. State (74 Ala. 21), 451. 
 Millville Mfg. Co. v. Salter (1 How. 
 
 Pr., N. S., N. Y., 495, 15 Abb. N. C. 
 
 305), 62. 
 Milton V. Hunter (13 Bush, Ky., 163), 
 
 314. 
 Milward v. Temple (1 Camp. 375), 231. 
 Milwaukee, etc. Ry. Co. v. Kellogg (94 
 
 U. S. 469, 473), 536. 
 Mima Queen v. Hepburn (7 Crapch, 
 
 390), 412. 
 Minohrod v. Ullman (163 III. 35), 328. 
 Miner v. Atherton (35 Pa. St. 528), 395. 
 Miner v. Boneham (15 Johns. 236), 436. 
 Minert v. Snow (2 Idaho, 851), 382. 
 Mining Syndicate v. Eraser (130 U. S. 
 
 eil), 309. 
 Minneapolis Times Co. v, Nimocks (53 
 
 Minn. 381), 251. 
 Minor v. Barron et al. (131 N. Y. 677, 
 
 43 N. Y. State Rep. 930). 7. 
 Minor v. Mechanics' Bank of A. (1 Pet 
 
 46), 71. 
 Minor v. Tillotson (7 Pet. 99), 243. 
 Minter v. People (39 111. App. 438), 74. 
 Mission, etc. v. Cronin (148 N. Y. 524), 
 
 646. 
 Mississippi County v. Vowels (101 Mo. 
 
 325), 513. ' 
 Missouri P. R Co. v. Baier (37 Neb. 
 
 335), 494. 
 Missouri P. R. Co. v. Baxter (45 Kan. 
 
 520), 6i3. 
 Missouri R. & T. R. Co. v. Graves (2 
 
 Tex. App. 196), 269. 
 Missouri R. & T. E. Co. v. Lycan (57 
 
 Kan. 635), 678. 
 Mitcham v. State (11 Ga. 615), 33, 485. 
 Mitchell V. Amador Co. (75 Cal. 464), 
 
 133. 
 Mitchell V. Com. (13 Ky. L. Rep. 458), 
 
 517. 
 Mitchell V. Mitchell (80 Tex. 101), 106. 
 
TABLE OF CASES. 
 
 evil 
 
 Befer&nces are to pages. 
 
 Mitchell V. United States (21 Wall. 
 
 350), 395. 
 Mitchell's Case (12 Abb. Pr., N. Y., 
 
 249), 86. 
 Mitaiire v. Montgomery (165 Pa. St. 
 
 253), 580. 
 Mobile Sav. Bank v. McDonald (87 
 
 Ala. 737), 173. 
 Mobile & B. R. Co. v. Ladd (92 Ala. 
 
 287), 478. 
 Mockabee v. Com. (78 Ky. 380), 455. 
 Mode V. Beasley (143 Ind. 306), 191. 
 MofEett V. Saekett (18 N. Y. 522), 57. 
 Moffit V. Witherspoon (10 Ired., N. C, 
 
 185), 428. 
 Mohr V. Mieaen (47 Minn. 228), 16. 
 Monkton \. Attorney -General (8 Russ. 
 
 & M. 156), 437. 
 Molson's Bank v. Boardman (14 N. Y. 
 
 State Rep. 658, 47 Hun, 135), 563. 
 Monroe v. Snow (131 111. 126), 484. 
 Monson v. St. Paul, M. & M. Ry. Co. 
 
 (34 Minn. 269), 63. 
 Montague v. Perkins (82 Eng. L. & 
 
 Eq. &16), 314. 
 Montague v. Thompson (91 Tenn. 68), 
 
 157. 
 Montana R. Co. v. Warren (137 U. S. 
 
 348). 572. 
 Montclair R. Co. v. Benson (36 N. J. L. 
 
 557), 688. 
 Montgomery v. Allen (84 Mich. 656), 
 
 129. 
 Montgomery v. Craig (128 Ind. 48), 
 
 331. 
 Montgomery v. Crosthwait (90 Ala. 
 
 553), 644. 
 Montgomery v. Gordon (51 Ala. 377), 
 
 126. 
 Montgomery v. Montgomery (3 Barb. 
 
 Ch. 132), 621. 
 Montgomery v. Long Island R. Co. 
 
 (55 Hun, 611, 39 N. Y. State Rep. 
 
 822), 529. 
 Montgomery v. Page (39 Greg. 230), 
 
 310. 
 Montgomery v. Pickering (116 Mass. 
 
 227), 104. 
 Montgomery V. State (11 Ohio St 224), 
 
 451, 454. 
 
 Montgomery County v. Auchley (92 
 
 Mo. 126), 53. 
 Montgomery County Bank v. Marsh 
 
 (7 N. Y. 481), 166. 
 Montreal Rolling Mill Co. v. Corco- 
 ran (26 Can. S. C. 595), 348. 
 Moody V. Osgood (59 Barb. 628), 402. 
 Moody V. Rowell (17 Pick. 496, 498), 
 
 709. 
 Moore v. Barclay (33 Ala. 739), 116. 
 Moore v. Capeley (115 Pa. St. 394), 441. 
 Moore v. Carter (146 Pa. St 492), 12. 
 Moore v. Chicago, M. & St P. R. Co. 
 
 (78 Wis. 120), 646. 
 Moore v. Davis (57 Mich. 251), 373. 
 Moore v. Flynn (135 111. 74), 646. 
 Moore v. Hill (43 Vt 424), 207. 
 Moore v. Murdock (26 Colo. 514), 43, 
 
 63. 
 Moore v. New York El. R. Co. (130 
 
 N. Y. 523, 89 N. Y. State Rep. 
 
 438), 356. 
 Moore v. Oviatt (35 Hun. 316), 150. 
 Moore v. Schofield (95 Cal. 486), 158. 
 Moore v. Shields (121 Ind. 367), 514. 
 Moore v. State (12 Ala. ff64), 453. 
 Moore v. United States (91 U. S. 270), 
 
 575. 
 Moore v. Westervelt (9 Bosw., N, Y.,. 
 
 558), 524. 
 Moores v. Blanker (29 N. H. 431), 633. 
 Moores v. Glover (37 N. Y. State Rep. 
 
 397), 308. 
 Moran v. Pelifant (28 111. 278), 626. 
 Moran v. Prather <33 Wall. 492), 264, 
 
 501. 
 Morehouse v. Matthews (3 N. Y. 514), 
 
 344. 
 Morehouse v. Morehouse (41 Hun, 
 
 146), 161. 
 Moreland v. Mitchell Co. (40 Iowa, 
 
 394), 556. 
 Morelock v. State (90 Tenn. 528), 453. 
 Morewood v. Wood (14 East 330), 426. 
 Morey v. Henry (86 Cal. 471), 331. 
 Morey v. Hoyt (63 Conn. 543, 47 Alb. 
 
 L. J. 310), 334. 
 Morgan v. Bridges (2 Stark. 314), 701. 
 Morgan v. Farrell (58 Conn. 418), 182, 
 
 188. 
 
cvm 
 
 TABLE or CASES. 
 
 References are to pages. 
 
 Morgan v. Freize (15 Barb. 352), 33. 
 Morgan v. Johnson (87 Ga. 382), 169. 
 Morgan t. Purnell (4 Hawks, N. C, 
 
 95), 433. 
 Morgan v. State (31 Ind. 193), 451. 
 Morowske v. Rohrig (53 N. Y. State 
 
 Rep. 220), 282, 307, 318. 
 Morrall v. Cawley (17 Abb. Prac, 
 
 N. Y., 76), 200. 
 Morrill v. Palmer (68 Vt 1), 701. 
 Morrill v. Whitehead (4 E. D. Smith, 
 
 239), 466. 
 Morris v. Eirminghan Nat. Bank (93 
 
 Ala. 511), 169. 
 Morris v. Edwards (43 Ark. 427), 63. 
 Morris v. Farmers' Mut. F. Ins. Co. 
 
 (63 Minn. 430), 550. 
 Morris v. Faurot (31 Ohio St, 155), 313. 
 Morris v. McClarey (43 Minn. 364), 633. 
 Morris v. Miller (1 W. Bl. 632), 434. 
 Morris v. Morton (14 Ky. L. Rep. 360), 
 
 481. 
 Morris v. New York, O. & W. R Co. 
 
 (148 N. Y. 88), 98, 100. 
 Morris v. Sickley (133 N. Y. 456), 392. 
 Morris v. State (30 Tex. App. 95), 583. 
 Morris v. Talcott (96 N. Y. 107), 355. 
 Morrisey v. Ingham (11 Mass. 63), 501. 
 Morrison v. Baker (81 N. C. 210), 67. 
 Morrison v. King (63 111. 30), 363. 
 Morrison v. Press Pub. Co. (133 N. Y. 
 
 538, 88 N. Y. State Rep. 357), 36. 
 Morrow v. Williard (30 Vt. 118), 654. 
 Morse v. Oilman (16 Wis. 504), 68. 
 Morse v. Rice (36 Neb. 122), 302. 
 Mortimer t. Chambers (63 Hun, 335, 
 
 48 N. Y. State Rep. 365), 176. 
 Mortimer v. Marden (93 Cal. 173), 643. 
 Mortimer v. McCallan (6 M. & W. 67, 
 
 68), 341. 
 Morton v. State (90 Ala. 603), 583. 
 Morton v. State (91 Tenn. 487), 500. 
 Mosely v. Vermont Mut. F. Ins. Co. 
 
 (55 Vt. 142), 189. 
 Moses V. United States (166 U. S. 571), 
 
 211. 
 Mosher v. Rogers (117 III. 446), 68. 
 Mosness v. German- American Ins. Co. 
 
 (21 Ins. L. J. 915), 635. 
 Moss V. Green (41 Mo. 389), 808. 
 
 Moss V. Philadelphia Traa Co. (180 
 
 Pa. St. 389), 350. 
 Mosseman v. Manhattan R. Co. (33 
 
 N. Y. 61, 16 Daly, 249), 613. 
 Most V. Pierce (58 Iowa, 579), 334. 
 Motherly v. Wall (168 Mass. 333), 355. 
 Mott V. Consumers' Ice Co. (2 Abb. 
 . N. G, N. Y., 143), 97. 
 Moulton V. Libby (87 Me. 473), 654. 
 Moulton V. McOwen (103 Mass. 587), 
 
 556. 
 Moundsville v. Velton (85 W. Va. 317), 
 
 185. 
 Mowry v. Chase (100 ?Iass. 79), 540. 
 Mowry v. Latham (17 R. I. 480), 600. 
 Moyer v. N. Y. C. & H. R R. Co. (98 
 
 N. Y. 645), 581. 
 Muckle V. Rennie (41 N. Y. State Rep. 
 
 97), 464. 
 Mugg V. Adams (76 Tex. 448), 574. 
 Mugler V. Kansas (137 U. S. 633), 361. 
 Muloahey v. L. E. & W. R Co. (69 
 
 Fed. Rep. 173), 475. 
 Mullen V. Chickering (110 N. Y. 515), 
 
 158. 
 Mullen V. Morris (8 Barr, 85), 338. 
 Mullen V. Pryor (12 Mo. 307), 625. 
 Mullen V. Sackett (14 Wash. 100), 191. 
 Mullen V. St. Johns (57 N. Y. 567), 348. 
 Muller T. Davis (94 U. S. 444), 593. 
 Muller V. Pondir (55 N. Y. 325), 122. 
 Muller V. Southern P. B. R Co. (83 
 
 Cal. 340), 449. 
 Muller V. St Louis Hospital Ass'n (73 
 
 Mo. 242), 707. 
 Mulnix V. Mutual Ben. L. Ins. Co. (33 
 
 Colo. 85), 600. 
 Munn V. Godbold (3 Bing. 297), 243. 
 Munro v. Vandan (Park. Ins. 333), 
 
 608.. 
 Munroe v. De Cheminant (4 Camp. ' 
 
 215), 434. 
 Munroe v. Gates (48 Me. 461), 619. 
 Munroe v. Williams (35 S. C. 573), 322. 
 Munson v. Wickwire (31 Conn. 513), 
 
 213. 
 Munter v. Rogers (.50 Ala. 283), 70. 
 Murdock v. State (68 Ala. 567), 627. 
 Murphy v. Davis (19 App. Div. 615), 
 
 341. 
 
TA3LE OF OASES. 
 
 CIX 
 
 Beferences are to pages. 
 
 Murphy v. Jack et al. (143 N. Y. 215, 
 
 58 N. Y. State Kep. 458), 532. 
 Murphy v. McGravv (74 Mich. 318), 57. 
 Murphy v. Nathans (46 Pa, St. 508), 
 
 388. 
 Murphy v. N. Y, L. E. & W. R Co. 
 (19 N. Y Weekly Dig. 414, 98 N. 
 Y 635), 531. 
 Murphy v. People (37 111. 447, 456), 451, 
 
 454, 668. 
 Murphy v. St. Louis, I. M. & S. R Co. 
 
 (43 Mo. App. 342), 609. 
 Murphy v. Weil (92 Wis. 467), 279. 
 Murray v. Bennirger (3 Abb. Ct App. 
 
 Dec. 336), 410. 
 Murray t. Coster (4 Cowen, 618), 138. 
 Murray v. Fox (104 N. Y 383), 153. 
 Murray v. Jones (53 Ga. 109), 364. 
 Murray v. Lardner (3 Wall. 121), 365. 
 Murray v. Lovejoy (3 Cliff. C. C. 191), 
 
 113. 
 Murray v. Milner (13 Ch. Div. 345, 
 
 845), 104, 430. 
 Murray v. New York L. Ins. Co. (85 
 
 N. Y. 2S6), 71. 
 Murray v. Norwood (77 Wis. 405), 624. 
 Murray v. Smith (1 Duer, 413), 61. 
 Murray v. Whitcomb (19 Ind. 135), 
 
 189. 
 Murtaugh v. N. Y C. & H. R R Co. 
 
 (49 Hun, 456), 547. 
 Musgrave v.. Sherwood (54 How. Pr., 
 
 N. Y. 338), 137. 
 Mussey v. White (58 Vt. 45), 69, 118. 
 Mutcha V. Pierce (49 Wis. 231), 489. 
 Mutual Life Ins. Co. v. Antliony (50 
 Hun, 101, 19 N. Y State Rep. 38), 
 475. 
 Mutual Life Ins. Co. v. Corey (54 Hun, 
 493, 27 N. Y State Rep. 608), 91. 
 Mutual Life Ins. Co. v. Hulman (145 
 
 U. S. 285), 559. 
 Mutual Life Ins. Co. v. Norris (31 N. 
 
 J. Eq. 583), 122. 
 Mutual Life Ins. Co. v. Selby (44 U. S. 
 
 App. 282), 415. 
 Mutual Life Ins. Co. v. Tillman (84 
 
 Tex. 31), 568. 
 Myer v. Lane (40 Kan. 491), 67. 
 Myers v. Cohn (53 N. Y. State Rep. 
 223), 495. 
 
 Myers v. County of Johnson (14 Iowa, 
 
 47), 115. 
 Myers v. Davis (22 N. Y 489), 375. 
 Myers v. Gerard Ins. Co. (26 Pa. St. 
 
 93), 608. 
 Myers v. Myers (167 III. 53), 127. 
 Mygatt V. Coe (147 N. Y. 456), 400. 
 
 N, 
 
 Nadau v. White L. Co. (76 Wis. 120), 
 
 477. 
 Namber v. Young (35 N. J. L. 331), 
 
 334. 
 Nary v. New York, O. & W. R Co. 
 
 (125 N. Y 759, 29 N. Y. State Rep. 
 
 630), 548. 
 Nash V. Classen (163 111. 409), 191. 
 Nash V. Minnesota T. Ins. & L. Co. 
 
 (163 Mass. 574), 559. 
 Nashua Fire Ins. Co. t. Moore (55 N. H. 
 
 48), 125. 
 Nason v. Blaisdall (12 Vt. 165), 111. 
 National Car & L. Builder v. Cyclone 
 
 Steam Snow Plow Co. (49 Minn. 
 
 125), 336. 
 National City Bank v. Wescott (118 
 
 N. Y 468), 62. 
 National Com. Bank v. Gray (71 Hun, 
 
 395), 619. 
 National Gas Light & F. Co. v. Miethke 
 
 (35 111. App. 629), 535. 
 National German-American Bank v. 
 
 Lang (8 N. D. 66), 195, 641. 
 National Ulster Co. Bank v. Madden 
 
 (33 Abb. N. C, N. Y, 118), 473. 
 National Ulster Co. Bank v. Madden 
 
 (114 N. Y 280, 23 N. Y State Rep. 
 
 220), 472. 
 Neal V. Comingham (I Cranch, U. S., 
 
 76), 76. 
 Neal V. Foster (34 Fed. Rep. 496), 
 
 514. 
 Nearpass v. Gilman (104 N. Y 506), 
 
 156. 
 Nedueck v. Grand Lodge A. O. U. W. 
 
 (1 Mo. App. Rep. 330), 237. 
 Needham v. Ide (5 Pick. 510), 557. 
 Needham v. Thayer (147 Mass. 536), 
 
 116, 118. 
 Neeley v. Carter (96 Ga. 197), 171. 
 
ex 
 
 TABLE OF jCASES. 
 
 References are to pages. 
 
 Neff V. Klopter (73 N. Y. State Rep. 
 
 272), 270. 
 Neiswaoger v. McClelland (45 Kan. 
 
 599), 320. 
 Nelm V. State (91 Ala. 97), 573. 
 Nelson v. Bolin (37 Mo. 432), 371. 
 Nelson v. Cook (19 111. 440, 455), 206, 
 
 405. 
 Nelson v. Eaton (26 Barb. 410), 379. 
 Nelson v. First Nat. Bank (43 TJ. S. 
 
 App. 554), 680. 
 Nelson v. People (33 N. Y. 393), 613. 
 Nelson v. Smith (36 N. J. L. 148), 293. 
 Nelson v. White (61 Ind. 139), 45, 68. 
 Nesblt V. Parrott (84 Ga. 142), 151. 
 Newark v. Stout (52 N. J. L. 35), 182. 
 New Berlin v. Norwich (10 Johns. 
 
 229), 330. 
 Newcastle v. Broxtowe (4 B. & Ad. 
 
 273), 417. 
 New England M. Co. v. Johnson (144 
 
 Pa. St 61), 565. 
 Newell V. Nichols (75 N. Y. 78), 632. 
 Newell V. Nichols (12 Hun, 694), 632. 
 Newhall v. Appleton (103 N. Y. 133), 
 
 499. 
 Newhall v. Appleton et al. (114 N. Y. 
 
 140, 22 N. Y. State Rep. 670), 383. 
 Newhall v. Ireson (8 Gush. 595), 654 
 Newhard v. Yundt (133 Pa St. 324), 
 
 626. 
 New Haven, etc. Go. v. Goodwin (43 
 
 Conn. 330), 444, 465. 
 New Haven & N. Co. v. Quintard (6 
 
 Abb. Pr., N. S., 138), 45. 
 New Jersey Steamboat Co. v. Brock- 
 
 ett (121 U. S. 637), 495. 
 New Jersey Zinc & I. Co. v. l,ehigh 
 
 Zinc & I. Go. (59 N. J. L. 189), 463, 
 
 473. 
 Newman v. Dobson (61 Tex. 91), 501. 
 Newman v. Irwin (43 La, Ann. 1114), 
 
 617. 
 JSTewman v. Stuckey (57 Hun, 589, 83 
 
 N. Y. State Rep. 876), 604. 
 New Milford v. Sherman (31 Conn. 
 
 101), 484. 
 New Orleans v. Citizens' Bank (167 
 
 U. S. 371), 108, 111. 
 New Orleans v. United States (10 Pet. 
 
 663, 737), 654. 
 
 Newton v. Chaplin (10 C. B. 356), 347, 
 
 351. 
 Newton v. Mutusil Ben. Life Ins. Co. 
 
 (2 Dill. C. C. 154), 486. 
 Newton v. Newton (77 Tex. 508), 164. 
 New York v. Brady (151 N. Y. 611), 
 
 110. 
 New York E. E. Go. v. Blair (79 Fed. 
 
 Rep. 896), 549. 
 New York, L. E. & W. R. Co. v. Win- 
 ter (143 U. S. 60), 496. 
 New York Rubber Co. v. Rothery (107 
 
 N. Y. 210), 122. 
 Niagara Falls Paper Go. v. Sterling 
 
 (25 N. Y. Civ. Pro. Rep. 251), 513. 
 Nicolay v. Mallory (63 Minn. 119), 515. 
 Nicolay v. Umber (80 N. Y. 54), 561. 
 Nicholls V. Parker (14 East, 331), 420. 
 Nichols V. Jones (33 Mo. App. 657), 
 
 213. 
 Nichols V. Jones (166 Pa. St 599), 51. 
 Nichols y/. Kingston I. O. Co. of Ii C. 
 
 (56 N. Y. 618), 566. 
 Nichols V. Morris (3 B. & Ad. 41), 315. 
 Nichols V. Nichols (183 Pa. St 438), 
 
 300. 
 Nichols V. ScrantonSteel Co. (64Hun, 
 
 633, 46 N. Y. State Rep. 58), 334. 
 Nichols V. Smith (3 St 188), 130. 
 Nichols V. State (46 Neb. 715), 371. 
 Nichols V. Vincent (9 Houst 374), 466. 
 Niday v. Harvey (9 Gratt, Va., 454), 
 
 115. 
 Niggli V. Foehry (83 Hun, 269), 49. 
 Nightengale v. Chaffee (11 R I. 609), 
 
 391. 
 Nightengale v. Lisen (121 N. Y. 388, 
 
 30 N. Y. State Rep. 995), 330. 
 Nightengale v. State (94 Ga. 395), 660. 
 Niles V. N. Y. C. & H. R R. Co. (14 
 
 App. Div. 58), 607. 
 Nilthrop V. Johnson (Glayt 143, pL 
 
 259), 334. 
 Ninman v. Suhr (91 Wis. 392), 322. 
 Nivin V. Stevens (5 Harr., Del., 372), 
 
 115. 
 Nix V. Headen (149 U. S. 204), 190. 
 Nixon V. Carco (28 Misg. 413, 441), 122, 
 
 647. 
 Nixon V. McKinney (105 N. C. 33), 
 
 165, 557. 
 
TABLE OF CASES. 
 
 CXI 
 
 References are to pages. 
 
 Nixon V. Porter (34 Miss. 697), 239. 
 Noble V. Cope (50 Pa. St 17). 131. 
 Noble V. N. Y. C. & H. R. R. Co. (20 
 
 App. Div. 40), 850. 
 Nobles V. Hogg (36 S. C. 222), 688. 
 Nodine v. Mary (8 Camp. 324), 335. 
 Nofire V. United States (164 U. S. 657), 
 
 614 
 Nolan V. State (8 Tex. App. 585), 317. 
 Nolan V. Williams (57 Kan. 758), 479. 
 Noonau v. Bradley (8 Wall. 894), 882. 
 N. O. Nelson Mfg. Co. v. Mitcbell (88 
 
 Mo. App. 321), 580. 
 Norberg v. Mead (3 Bligh, 241, 343), 
 
 653. 
 Norcross v. Norcross (53 Me. 63), 607. 
 Norfolk V. Gaylord (38 Conn. 309), 76. 
 Norman v. Kentucky Bdl of Man. of 
 
 World's Col. Expo. (98 Ky. 537, 
 
 47 Alb. L. J. 190), 183. 
 Norman v. Wells (17 Wend. 136), 544. 
 Norriston Title, T. & S. D. Co. v. John 
 
 Hancock Mut Life Ins. Co, (133 
 
 Pa. St. 385), 323. 
 North V. Metz (57 Mich. 612), 496. 
 North V. People (139 111. 81), 382, 405. 
 North Bank v. Abbott (13 Pick. 465), 
 
 444. 
 North Brookfield v. Warren (16 G-ray, 
 
 171, 174), 341, 426. 
 North Chicago St R Co. v. Cook (145 
 
 111. 551), 571. 
 North Chicago St E. Co. v. Lewis (148 
 
 111. 9), 610. 
 North River Bank v. Aymar (3 Hill, 
 
 363), 381. 
 Northern Nat Bank v. Lewis (78' Wis. 
 
 475), 322. 
 Northern P. R Co. v. Charles (168 
 
 U. S. 359), 851. 
 Northern P. R. Co. r. Brlin (158 
 
 U. S. 371), 503, 550. 
 Northern P. R Co. v. Sullivan (53 
 
 Fed. Rep. 310), 197. 
 Northern R Co. v. Chandler (84 Ga. 
 
 37), 477: 
 Northrup V. Hale (76 Me. 306); 433. 
 Northrup v. Mississippi Valley Ins. 
 
 Co. (47 Mo. 435), 5a 
 Northwestern' Fuel Co. v. Mahler (36 
 
 Mina 166), 686. -- 
 
 Norton v. Bohart (105 Mo. 615), 308. 
 Norton v. Doherty (3 day, 373), 1 15. 
 Norton v. Pettibone (7 Conn. 319), 201. 
 Norton v. St Louis & H. R Co. (40 
 
 Mo. App. 643), 610. 
 Nott V. Thomas (35 S. C. 461), 617. 
 Nourse v. Nourse (116 Mass. 101), 122. 
 Nowack V. Burger (133 Mo. 24, 31 L. 
 
 R A. 810), 147, 170. 
 Noxon V. De Wolf (10 Gray, 343), 617. 
 Noyes v. Morris (56 Hun, 501, 31 N. Y. 
 
 State Rep. 608), 507, 530. 
 Nutting V. Page (4 Gray, 584), 486. 
 Nye V. Lothrop (94 Mich. 411), 355. 
 
 Oakley v. Aspinwall (13 N. Y. 500), 
 
 116. 
 Oakley v. Morton (11 N. Y. 35), 50. 
 Oakley v. Ooddeen (2 F. & F. 1), 339. 
 Oberland v. Spiess (45 N. Y. 175), 51, 
 O'Brien v. Gilchrist (34 Me. 554), 319. 
 O'Brien v. Home Ben. Soc. (117 N. Y. 
 
 310, 27 N. Y. State Rep. 336), 343, 
 
 480. 
 O'Brien v. McCann (58 N. Y. 376), 46. 
 O'Brien v. People (86 N. Y. 283), 539. 
 O'Brien v. Prescott Ins. Co. (134 N. Y. 
 
 28, 33 N. Y. State Rep. 579), 330. 
 O'Brien v. Weiler (140 N. Y. 281), 161, 
 
 164 
 O'Brien v. Weiler (68 Hun, 64, 53 N. Y. 
 
 State Rep. 17), 495. 
 Ocean Nat Bank v. Carl (55 N. Y. 
 
 440), 443. 
 Oceanic S. N. Co. v. Campania T. E. 
 
 (144' N. Y. 66), 110. 
 O'Connor v. Chicago, M. & St P. R R 
 
 Co. (27 Minn. 166), 486. 
 O'Conmr v. Hurley (147 Mass. 45), 56. 
 O'Day V. Chaffee (64 Hun, 637, 46 N, Y. 
 
 State Rep. 747), 14 
 O'Dell V. Metropolitan El. R Co. (53 
 
 N. Y. State Rep. 7), 693. 
 O'Dell V. Reynolds (37 U. S. App. 447, 
 
 70 Fed. Rfep. 656), 191. 
 Odd Fellows v. First Nat. Bank (43 
 
 Mich. 463), 316. 
 O'Donohue v. Leggett (134 N. Y. 40, 
 
 39 N. Y. State Rep. 983), 78, 284, 
 
 285. 
 
cxu 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 O'Donnell v. Johns (76 Tex. 352), 253. 
 O'Donnell v. Paul (157 Mass. 463), 356. 
 O'Gara v. Eisenlohr (38 N. Y. 296), 
 
 396i 592, 627. 
 Ogden V. People (134 111. 599), 529. 
 Ogden V. Pope (44 N. Y. State Rep. 
 
 646), 617. 
 OggertoQ V. Dodge Co. (97 Ga. 469), 
 
 506. 
 Oglesby Coal Co. v. Pasco (79 111. 164), 
 
 126. 
 O'Hagau v. Dillon (76 N. Y. 170), 699. 
 Ohio & M. R. Co. V. Hecht (115 Ind. 
 
 448), 69. 
 Ohio & M. R. Co. V. Neutzel (143 111. 
 
 46), 528. 
 Ohio S. R Co. V. Morey (47 Ohio St 
 
 23), 352. 
 Oil City Fuel Supply Co. v. Bondy 
 
 (122 Pa. St. 449), 209. 
 O'Keefe v. St. Francis Church (59 
 
 Conn. 551), 320, 684. 
 Oldfield V. N. Y. & H. E. R Co. (14 
 
 N. Y. 310), 49. 
 O'Leary v. McDonough (52 N. Y. State 
 
 Rep. 370), 372. 
 Oliphant v. Leversidge (143 111. 160), 
 
 620. 
 Oliver v. Freleigh (36 Hun, 633), 157. 
 Oliver v. Hunting (L. R 44 Ch. D. 
 
 205), 300. 
 Oliver v. State (5 How., Miss., 14), 476. 
 Oiler v. Bonebrake (65 Pa. St. 238), 
 
 388. 
 Olp v. Gardner (48 Hun, 169, 15 N. Y. 
 
 State Rep. 544), 505. 
 Olsen V. Nonemacher (63 Minn. 435), 
 
 687. 
 Olsen V. Peterson (33 Neb. 358), 129. 
 Omaha 8. R. Co. v. Berson (S8 Neb. 
 
 89), 260. 
 Omaha S. R Co. v. Martin (48 Neb. 
 
 65), 607. 
 O'Michund v. Barker (1 Smith's Lead. 
 
 Cas. 536, 545), 133. 
 Omnium Securities Co. v. Richardson 
 
 (7 Ont Rep. 18S), 139. 
 O'Neal V. Dry Dock, E. B. & B. R Co. 
 
 (139 N. Y. 136, 36 N. Y. State Rep. 
 
 930, 41 N. Y. State Rep. 107), 546. 
 
 O'Neal V. New York Min. Co. (3 Nev. 
 
 149), 635. 
 O'Neal V. N. Y. C. & H. R. R Co. (60 
 
 N. Y. 138), 66. 
 Ordway v. Sander (58 N. H. 132), 485. 
 Oregon S. L. & U. N. Co. v. Tracy (66 
 
 Fed. Rep. 931), 49. 
 Organ Co. v. Boyle (10 Neb. 409), 313. 
 Orick V. Stewart (70 Miss. 109), 362. 
 Orrasby v. Jacques (12 Hun, 443), 111. 
 Ormsby v. People (53 N. Y. 473), 7a 
 Orr v. Clark (62 Vt 136), 151, 167. 
 Orr v. Farmers' Alliance, W. H. & C. 
 
 Co. (97 Ga. 241), 715. 
 Ortiz V. State (30 Fla. 256), 216, 494. 
 Osborn v. Allen (36 N. J. L. 388), 628. 
 Osborn v. Blackburn (78 Wis. 209), 
 
 642. 
 Osborn v. City of Detroit (38 Fed. Rep. 
 
 385), 71. 
 Osborn v. Forshee (33 Mich. 209), 696. 
 Osborn v. Kline (18 Neb. 244), 62. 
 Osborn v. Robbins (37 Barb. 481), 488. 
 Osborn v. Taylor (58 Conn. 439), 309. 
 Oscanyan v. Arms Co. (103 U. S. 261), 
 
 46. 
 Osgood V. Bander (83 Iowa, 171), 282. 
 Osgood V. Manhattan Co. (8 Cow. 613), 
 
 314. 
 O'Shea v. Wood (1891, P. D. 286), 91. 
 Oskamp v. Gadsden (35 Neb. 7, 17 L. 
 
 R. A. 440), 533. 
 Ostin v. Jerome (93 Midi. 196), 547. 
 Ostrander v. Scott (161 111. 339), 118, 
 
 371. 
 Ostrander v. Snyder (73 Hun, 378, 57 
 
 N. Y. State Rep. 389), 7. 
 Otis V. Spencer (103 111. 632), 105. 
 Ottawa University v. Parkinson (14 
 
 Kan. 159), 540. 
 Ottinger v. New York El. R Co. (48 
 
 N. Y. State Rep. 817, 63 Hun, 631), 
 
 682. 
 Overby v. Chesapeake & O. R Co. (37 
 
 W. Va. 524), 523. 
 Owen V. Field (102 Mass. 90, 114), 652. 
 Owen V. Lavine (14 Ark. 389), 315. 
 Owen V. State (89 Tenn. 698), 141. 
 Owens V. Spedd (5 Wheat. 430), 479. 
 Owens V. State (94 Ala. 97), 11. 
 
TABLE OF CASES. 
 
 cxm 
 
 Eeferences are to pages. 
 
 P. 
 
 Pace V. State (89 Tex. 17), 669. 
 Pacific Postal Tel. Co. v. Fleischner 
 
 (66 Fed. Rep. 899), 385. 
 Packnrd v. Hill (7 Cowan, 434, 443), 
 
 334, 288. 
 Packard v. Hill (3 Wend. 411), 338. 
 Packard v. Reynolds (100 Mass. 153), 
 
 57. 
 Packet Co. v. Clough (30 Wall. 528, 
 
 540), 209. 
 Packet Co. v. Sickles (5 WaU. 592), 
 
 119. 
 Paddock v. Forrester (5 M. & G. 918), 
 
 128. 
 Page V. Page (16 Pick. 368), 242. 
 Page V. Parker (40 N. H. 47, 63), 413, 
 
 536, 556, 679. 
 Page V. Wheden (59 N. H. 507), 174 
 Paige V. Hazzard (5 Hill, 603), 544. 
 Paige V. Now York (58 Hun, 603, 33 
 
 N. Y. State Rep. 844), 223. 
 Paige V. Willett (38 N. Y. 28), 48, 61. 
 Paine v. Aldrioh (133 N. Y. 544, 44 
 
 N. Y. State Rep. 308), 541. 
 Paine v. Aldrich (38 N. Y. State Rep. 
 
 ■ 403), 553. 
 Paine v. Eastern Co. (91 Wis. 340), 
 
 549. 
 Paine. V. Farr (18 Mass. 74), 6. 
 Paine v. Schenectady Ins. Co. (URL 
 
 411), 195. 
 Paland v. Chicago, St. L. & N. O. R 
 
 Co. (42 La. Ann. 390), 193. 
 Pallman v. Smith (135 Pa. St 188), 
 
 465. 
 Palmateer, Matter of (78 Hun, 48), 164. 
 Palmer v. Culbertson (148 N. Y. 318), 
 
 206. 
 Palmer v. Davis (38 N. Y. 343), 67. 
 Palmer v. Farrell (139 Pa. St 162), 152, 
 
 153, 300. 
 Palmer v. Lawrence (3 Sandf. Ch. 161), 
 
 379. 
 Palmer v. Manhattan Ry. Co. (133 
 
 N. Y. 361), 31. 
 Palmer v. Mt Sterling Nat Bank (13 
 
 _ Ky. L. Rep. 790), 616. 
 Palmer v. Transportation Co. (57 N. Y. 
 
 State Rep. 307, 76 Hun, 181), 730. 
 
 Panama R Co. v. Johnson (58 Ilun, 
 
 557, 35 N. Y. State Kep. 560), 630. 
 Pance v. Waugh (135 Ind. 143), 92. 
 Parhan v. Moran (71 N. Y. 596), 161, 
 
 163. 
 Parish v. Wheeler (22 N. Y. 494), 378. 
 Parker v. Georgia P. R Co. (83 Ga. 
 
 539), 479. 
 Parker v. Lake S. & M. S. R Co. (98 
 
 Mich. 607), 677. 
 Parker v. McCIuer (3 Abb. Ct App. 
 
 Dec. 454), 888. 
 Parker v. Nickerson (137 Mass. 437), 
 
 444. 
 Parker v. State (4 Ohio St 563), 846. 
 Parker v. State, Powell (133 Ind. 178), 
 
 190. 
 Parker v. Steamboat Co. (109 Mass. 
 
 449), 588. 
 Parkhurst v. Berdell (110 N. Y. 386, 18 
 
 N. Y. State Rep. 198), 107. 
 Parkhurst v. Lowten (2 Swans. 816), 
 
 78. 
 Parks V. Andrews (56 Hun, 391), 163. 
 Parks V. Ingram (23 N. H. 383), 315. 
 Parks V. Ross (U How., U. S., 863), 404- 
 Parks V. Smith (155 Mass. 36), 639. 
 Parmenter v. Fitzpatrick (135 N. Y. 
 
 190, 48 N. Y. State Rep. 80), 686. 
 Parrott v. Swain (39 111. App. 336), 530. 
 Parry v. Morrit (1 M. & R 279), 348. 
 Parsons v. Brown (3 C. & K. 295, 396), 
 
 604. 
 Parsons v. Lindsay (36 Kan. 436), 587. 
 Parsons v. Miller (15 Wend. 503), 294. 
 Parsons v. State (43 Ga. 197), 145. 
 Partridge v. Badger (25 Barb. 173), 381, 
 
 483. • 
 Partridge v. Coates (Ry. & M. 153, 156), 
 
 248. 
 Passaic County Freeholders v. Dow- 
 
 nie (54 N. J. L., 25 Vroom, 223), 496. 
 Passmore v. Passraore (60 Mich. 463), 
 
 355. 
 Paten v. Ormerod (1893, Prob. Div. 
 
 347), 889. 
 Patrick v. Jack (83 111. 81), 465. 
 Patten v. Glover (1 App. D. C. 465), 93. 
 Patten v. United States Life & Acci- 
 dent Ins. Ass'n (45 N. Y. State 
 
 Rep. 661, 133 N. Y. 450), 95, 97. 
 
cxiy 
 
 TABLE OP CASES. 
 
 References are to pajes. 
 
 Patterson v. Dunshane (137 Pa. St. 
 
 33), 38. 
 Patterson v. Hull (9 Cow. 747), 373. 
 Patterson v. Martin (33 W. Va. 494), 
 
 164. 
 Pattei'son v. Ramspeok (81 G-a. 808), 
 
 267, 309. 
 Patterson v. Scheuck (3 Green, 434), 27. 
 Patterson v. South & N. A. R. Co. (89 
 
 Ala. 318), 285, 529. 
 Patterson v. Stettauer (40 N. Y. Supr. 
 
 Ct. 54), 53. 
 Patterson v. Winn (5 Pet 333, 241), 
 
 241, 243. 
 Pattison v. Prior (18 Ind. 440), 598. 
 Pattle V. Hornibrook (1897, 1 Ch. 25, 
 
 66 L. J. Ch., N. S., 144), 272. 
 Patton V. Philadelphia (175 Pa. St. 88), 
 
 683. 
 Patton V. State (6 Ohio St. 467), 514. 
 Pattvillo V. Alexander (39 L. R, A. 
 
 616, 96 Ga. 60), 643. 
 Paty V. Martin (15 La. Ann. 620), 540. 
 Paul V. Malone (87 Ala. 544), 614. 
 Pawling V. Haskins (133 Pa. St. 617), 
 
 611. 
 Payne v. Burnham (62 N. Y. 69), 123. 
 Payne v. Crawford (97 Ala. 604), 335. 
 Payne v. Halstead (44 111. App. 97), 
 
 351. 
 Payne v. Hodge (7 Hun, 613), 472. 
 Paxton V. Paxton (38 W. Va 616), 163, 
 
 171. 
 Peabody v. Bement (79 Mich. 47), 300. 
 Peabody v. Hughes (53 Mo. 33), 450. 
 Peace v. Jenkins (10 Ired., N. C, 355), 
 
 456. 
 Peaceable v. "Watts (4 Taunt 16), 547. 
 Peagler v. Stabler (91 Ala. 308), 831. 
 Peake v. State (50 N. J. 179), 651. 
 Peaks V. Lord (43 Neb. 15), 873. 
 Pearce v. Gardner (1897, 1 Q; B. 688), 
 
 295. 
 Pearce v. Hooper (3 Taunt 60), 225. 
 Pearce v. Jackson (10 Ired., N. C, 355), 
 
 459. 
 Pearsall v. Western Union T. Co. (134 
 
 N. Y. 256, 85 N. Y. State Rep. 307), 
 
 354: 
 Pearson v. McDaniel (69 Ga. 100), 573. 
 
 Pearson v. Parker (3 Barb. 249), 59. 
 Pearson v. Pearson (46 Cal. 609), 432. 
 Pease v. Batten (56 Hun, 643, 31 N. Y. 
 
 State Rep. 57), 518. 
 Peck V. Callaghan (95 N. Y. 73), 575, 
 
 580. 
 Peck V. Lake (3 Lans. 436), 473. 
 Peck V. Peck (37 L. T., N. S., 670), 388. 
 Peck V. Ritchey (66 Mo. 114), 34. 
 Peck T. Sims (120 Ind. 345), 194. 
 Peck V. Valentine (94 N. Y. 569), 463, 
 
 473. 
 Peck V. Williams (13 Abb. Pr., N. Y., 
 
 68), 88. 
 Peck V. Winne (51 N. Y. 641), 68. 
 Peckham v. Gilman (7 Minn. 446), 311. 
 Peet V. Hatcher (112 Ala. 514), 113. 
 Pefferling v. State (40 Tex. 486), 505. 
 Peirara v. Smith (53 II. Y. State Rep. 
 
 124), 302. 
 Peiseh v. Dixon (1 Mason, 9), 268. 
 Pelamourges v. Clark (9 Iowa, 1, 12), 
 
 526, 588. 
 Pelican Pire Ins. Co. v. Troy Co-op. 
 
 Ass'n (77 Tex. 225), 342. 
 Pelley v. Wills (141 Ind. 688), 712. 
 Pelly V. Onderdonk (139 N. Y. 598), 367. 
 Pelton V. Platner (18 Ohio St 209), 
 
 116. 
 Pelzer Mfg. Co. v. Sun Fire Offlee (36 
 
 S. C. 218), 826; 
 Penaker <S5 Co. v. Lampson (4 Shiepi 
 
 224), 250. 
 Pence v. Chicago, R. I. & P; R. Cft (79 
 
 Iowa, 389), 546. 
 Pence v. Groan (51 Ind. 338), 358. 
 Pence v. Makepeace (65 Ind. 345), 199. 
 Pendeny v. Crescent Life Ins. Co. (3 
 
 La. Ann. 410), 281. 
 Pender v. Brooklyn City R Co. (84 
 
 Hun, 460), 546. 
 Pendleton v. Cliile (85 Cal. 143), 341. 
 Pendleton v. Empire S. D. Co. (19 
 
 N. Y. 13), 33. 
 Pendleton v. Mead (17 N. Y. 72), 466. 
 Pendleton v. Saunders (17 Oreg: 124), 
 
 544 
 Pendley V. Eaton (130 111. 69), 62& 
 Penn v. Kearney (31 Lbi Ann. 21), 
 
 407. 
 
TABLE OF OASES. 
 
 cxv 
 
 References are to pages. 
 
 Penn Mut. L. Ina. Co. v. Keach (33 111. 
 
 App. 437, 134 111. 583), 498. 
 Penn Mut. L. Ins. Co. v. Mechanics' 
 
 Sav. Ban'.; (73 Fed, Eep. 413), 356. 
 Pennell v. Meyer (3 Moo. & Eob. 98), 
 
 333. 
 Pennington v. Yell (11 Ark. 312), 593. 
 Pennsylvania v. Froud (4 Ind. App. 
 
 469), 568. 
 Pennsylvania v. Marion (133 Ind. 415), 
 
 99. 
 Pennsylvania Co. v. Bray (135 Ind. 
 
 S29), 31. 
 Pennsylvania Co. v. McCann (31 L. 
 
 R A. 651, 54 Ohio St 10), 643. 
 Pennsylvania Co. v. Newmayer (13 
 
 lad. 401), 704. 
 Pennsylvania Co. v. Roy (103 U. S. 
 
 459), 720. 
 Pennsylvania Coal Co. v. Kelley (156 
 
 111. 9), 358. 
 Pennsylvania R. Co. v. Middleton (47 
 
 N. J. L. 154), 349. 
 Pennsylvania R. Co. v. Mitchell (134 
 
 Ind. 473), 548. 
 Pennsylvania S. V. R. Co. v. Ziemer 
 
 ■ (134' Pa. St. 560), 688. 
 Penny v. Croul (13 L. R A. 83, 44 Alb. 
 
 L. J. 225, 87 Mich. 15), 155, 168. 
 Pentecost v. State (107 Ala. 81), 348. 
 Pentecost R R Co. v. Weeks (52 Me. 
 
 456), 116. 
 Pentz V. Stanton (10 Wend. 371), 317. 
 People V. Augsbury (97 N. Y. 501), 
 
 538. 
 People V. Austin (1 Park. Cr. Con. 
 
 154), 33. 
 People V. Baker (96 N. Y. 340), 558. 
 People V. Barber (115 N. Y. 675, 36 
 
 N. Y. State Rep. 184), 530, 541. 
 People V. Barker (60 Mich. 377, 1 Am. 
 
 State Rep. 501), 319. 
 People V. Barney (114 Cal. 554), 486. 
 People V. Barr (42 Hun, 313), 536. 
 People V. Barrie (49 Cal. 334), 146. 
 People V. Bartholf (24 Hun, 373), 105. 
 People V. Beach (93 Mich. 35), 584. 
 People V. Bedleman (104 Cal. 608), 666. 
 People V. Bemmerley (98 Cal. 399), 
 
 362. 
 
 People V. Bemmerley (87 Cal. 117), 
 
 453. 
 People V. Blake (73 N. Y. 586), 545. 
 People V. Bliven (112 N. Y. 79), 146. 
 People V. Brewer (27 Mich. 134), 83. 
 People V. Briggs (114 N. Y. 56, 33 N. 
 
 Y. State Rep. 317), 355. 
 People V. Brooks (131 N. Y. C^l), 37. 
 People V. Brow (90 Hun, 509), 699. 
 People V. Brown (73 N. Y. 571), 76, 78. 
 People V. Buchanan (145 N. Y. 1), 88, 
 
 89. 
 People V. Durwell (106 Mich. 37), 19. 
 People V. Canal Appraisers (33 N. Y. 
 
 461), 654. 
 People V. Capsey (71 Cal. 548), 708. 
 People V. Carroll (SPark.Cr. Rep. 73), 
 
 76. 
 People V. Cassidy (133 N. Y. 613, 44 
 
 N. Y. State Rep. 869), 319, 358. 
 People V. Chacon (3 N. Y. Crim. Rep. 
 
 418, 103 N. Y. 669), 318, 539. 
 People V. Chapleau (121 N. Y. 366, 30 
 
 N. Y. State Rep. 989), 140, 319. 
 People V. Chegaray (18 Wend. 642), 
 
 144. 
 People V. Christian (78 Hun, 28), 146. 
 People V. Chukee (61 Cal. 404). 186. 
 People V. Cole (43 N. Y. 508), 704. 
 People V. Colder (30 Mich. 87), 536. 
 People V. Conroy (153 N. Y. 187), 73, 
 
 566, 667. 
 People V. Conroy (97 N. Y. 63, 33 Hun, 
 
 119), 539. 
 People V. Cory (148 N. Y. 476), 557. 
 People V. Costello (1 Den. 83), 145. 
 People V. Courtney (94 N. Y. 490), 73. 
 People V. Crapo (76 N. Y. 291), 77. 
 People V. Crespi (115 Cal. 50), 703. 
 People V. Crunzig (1 Park. C. R. 899), 
 
 451. 
 People V. Daily (73 Hun, 16, 57 N. Y. 
 
 State Rep: 10), 666. 
 People V. Daniels (105 Cal. 263), 346. 
 People V. Davis (56 N. Y. 95, 103), 455, 
 
 486, 515. 
 People v. Davis (31 Wend. 309), 36. 
 People V. Dayell (48 Cal. 95), 25. 
 People V. Deacon (109 N. Y. 374), 588. 
 People V. Deegan (38 Cal. 603), 705. 
 
ex VI 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 People V. Bevine (46 Cal. 45), 475. 
 People V. Devine (44 Cal. 453), 34. 
 People V. Dixon (94 Cal. 255), 705. 
 People V. Dorthy (80 N. Y, State Rep. 
 
 970), 81. 
 People V. Doyle (58 Hun, 525), 530. 
 People V. DriscoU (117 N. Y. 414, 9 
 
 N. Y. State Rep. 830), 540. 
 People V. Druse (103 N. Y. 655), 318, 
 
 699. 
 People V. Eastwood (14 N. Y. 563), 
 
 344, 535, 588. 
 People V. Effinger (105 Cal. 36), 6. 
 People V. Elyea (14 Cal. 144), 468. 
 People V. Evans (40 N. Y. 1), 145. 
 People V. Everhardt (104 N. Y. 591), 
 
 146. 
 People V. Fanning (181 N. Y. 659, 43 
 
 N. Y. State Rep. 771), 319. 
 People V. Faushawe (137 N. Y. 68), 
 
 543. 
 People V. Farrell (30 Cal. 356), 146, 147. 
 People V. Fish (135 N. Y. 136, 34 N. Y. 
 
 State Rep. 840), 556, 568. 
 People V. Fitzgei-ald (27 N. Y. State 
 
 Rep. 595), 705. 
 People V. Flack et al. (135 N. Y. 334, 
 
 34 N. Y. State Rep. 732), 515. 
 People V. Fox (131 N. Y. 449, 31 N. Y. 
 
 State Rep. 570), 317, 330. 
 People V. Fredericks (106 Cal. 554), 
 
 671. 
 People V. Freshotn (55 Cal. 375), 76. 
 People V. Fulda (53 Hun, 65, 23 N. Y. 
 
 State Rep. 418), 361. 
 People V. Fulton Fire Ins. Co. (35 
 
 Wend. 308), 436. 
 People V. Furtado (57 Cal. 345), 34. 
 People V. Gardiner (57 N. Y. State 
 
 . Rep. 18, 73 Hun, 66). 357, 666. 
 People V. Gardner (144 N. Y. 119), 14, 
 
 73, 
 People V. Gasch (82 Mich. 33), 81. 
 People V. Gates (13 Wend. 31 1), 101. 
 People V. Gibson (106 Cal. 458). 566. 
 People V. Gilbert (39 Cal. 663), 219. 
 People V. Glenn (10 Cal. 33), 455. 
 People V. Gonzales (35 N. Y. 49, 61), 
 
 534, 556. 
 People V. Goulette (83 Mich. 8fi), 505. 
 
 People V. Graham (31 Cal. 361), 697. 
 People V. Green (1 Park. Crim. Rep. 
 
 11), 451. 
 People V. Green (1 Denio, 614), 144, 
 
 453. 
 People V. Greenfield (85 N. Y. 75). 487. 
 People V. Guidice (100 N. Y. 507), 73. 
 People V. Hare (57 Mich. 505), 10, 539. 
 People V. Harris (136 N. Y. 423, 49 
 
 N. Y State Rep. 751), 95, 537, 666. 
 People V. Hecker (30 L. R. A. 403), 350. 
 People V. Hennessey (15 Wend. 147), 
 
 316. 
 People V. Herrick (13 Johns. 83), 73. 
 Pfople V. Hess (8 App. Div. 143), 85. 
 People V. Hickman (113 Cal. 80), 76. 
 People V. Hillhouse (80 Mich. 580), 31, 
 People V. Hinchman (75 Mich. 587), 
 
 355. 
 People V. Hintrager(60 Iowa, 180), 69. 
 People V. Hoas (79 Mich. 449), 118. 
 People V. Hoch (150 N. Y. 39), 96, 711. 
 People V. Hodgdon (55 Cal. 72), 451, 
 People V. Hovey (93 N. Y. 560), 73. 
 People V. Hulett (61 Hun, 630, 39N.Y 
 
 State Rep. 646), 35. 
 People V. Irving (95 N. Y. 544, 546), 77. 
 People V. Jacobs (49 Cal. 384), 30. 
 People V. Jeffrey (83 Hun, 409, 6S 
 
 N. Y. State Rep. 585), 80. 
 People V. Jyhr (33 Mich. 461), 186.. 
 People V. Keith (50 Cal. 137), 714. 
 People V. Kelly (24 N. Y. 74), 75, 82. 
 People V. Kemmler (119 N. Y. 580), 
 
 556. 
 People V. Kief (126 N. Y. 661, 37N. Y 
 
 State Ref). 477), 514, 516. 
 People V. Killey (113 N. Y. 647), 699. 
 People V. Kurtz (43 Hun, 836), S17. 
 
 218. 
 People V. Lanchey (24 Cal. 17), 451. 
 People V. Langtry (64 Cal. 256), -145. 
 People V. Lavelle (71 Cal. 351), 588. 
 People V. Lewis (63 Hun, 622, 43 N. Y. 
 
 State Rep. 768), 104. 
 People V. Loui Tong (90 Cal. 377), 58a. 
 People V. McCann (16 N. Y 61), 183, 
 People V. McCarthy (115 Cal. 335), 537. 
 People V. McClure''(148 N. Y. 95), 20, 
 
 356. 
 
TABLE OF CASES. 
 
 CXVll 
 
 Eeferences are to pages. 
 
 People V. McElvaine (30 N. Y. State 
 
 Rep. 977, 121 N. Y. 250), 556. 
 People V. McGianis (1 Park. Cr. Rep. 
 
 387), 32. 
 People V. McKane (143 N. Y. 455), 337, 
 
 516, 666. 
 People V. McLaughlin (150 N. Y. 365, 
 
 73 N. Y. State Rep. 497), 469, 473, 
 
 666. 
 People V. McLean (59 Hun, 636, 37 
 
 N. Y. State Rep. 628), 583. 
 People Y. March (6 Cal. 543), 667. 
 People V. Mather (4 Wend. 339, 347), 
 
 696, 697. 
 People V. Mayes (113 Cal. 618), 708,714. 
 People V. Mayhew (150 N. Y. 346), 146. 
 People V. Mead (50 Mich. 228), 74. 
 People V. Medart (166 111, 348), 117. 
 People V. Mercein (8 Paige, 47), 106. 
 People V. Miller (91 Mich. 639), 669. 
 People V. Mills (94 Mich. 630), 21. 
 People V. Mitchell (94 Cal. 550), 39, 584. 
 People V. Mondon (103 N. Y. 311), 218. 
 People V. Monteith (73 Cal. 7), 588. 
 f People V. Moore (50 Hun, 356, 20 N. Y. 
 
 State Rep. 1), 558, 562. 
 People V. Moore (15 Wend. 419), 706. 
 People V. Mailings (83 Cal. 138), 107. 
 People V. Murphy (101 N. Y. 136), 96, 
 
 98. 
 People V. Murphy (45 Cal. 137), 474, 
 
 476. 
 People V. Murray (85 Cal. 350), 37. 
 People V. Nevius (1 Hill, 154), 193. 
 People V. New York & S. I. Ferry Co. 
 
 (68 N. Y. 71), 654. 
 People V. Nino (149 N. Y. 317), 697. 
 People V. Noelke (94 N. Y. 137), 146. 
 People V. Noelke (29 Hun, 461), 147. 
 People V. Northrupp (50 Barb. 149), 
 
 106. 
 People V. Ogle (104 N. Y. 511), 146. 
 People V. Oldham (111 Cal. 648), 515. 
 People V. O'Neil (20 N. Y. State Rep. 
 
 754, 113 N. Y. 355), 485. 
 People T. O'Neil (109 N. Y. 366), 140, 
 
 145. 
 People V. Osmond (138 N. Y. 80, 51 
 
 N. Y. State Rep. 737), 555. 
 People V. O'Sullivan (104 N. Y. 481), 
 
 15, 505. 
 
 People V. Packeuham (115 N. Y. 200), 
 
 588. 
 People V. Pallister (138 N. Y. 601, 51 
 
 N. Y. State Rep. 725), 494. 
 People V. Petmacky (99 N. Y. 45, 2 
 
 N. Y. Cr. Rep. 458), 106. 
 People V. Pitcher (15 Mich. 597), 204. 
 People V. Plath (100 N. Y. 592), 146. 
 People V. Piatt (117 N. Y. 159, 37 N. Y. 
 
 State Rep. 149), 896. 
 People V. Powers (147 N. Y. 104, 69 
 
 N. Y. State Rep. 403), 191. 
 People V. Raines (20 Colo. 489), 237. 
 People V. Rector (19 Wend. 569), 83. 
 People V. Ribalsi (104 Cal. 716), 361. 
 People V. Eioker (22 N. Y. State Eep. 
 
 653), 145. 
 People V. Rice (135 N. Y. 473), 190. 
 People V. Roderick (69 Cal. 601), 31. 
 People V. Roemer (114 Cal. 51), 708. 
 People V. Rohrs (19 Hun, 150), 117. 
 People V. Rose (53 Hun, 33), 73. 
 People V. Ross (115 Cal. 333), 699. 
 People V. Ryan (108 Cal. 581), 712. 
 People V. Sailord (5 Denio, 113), 29l 
 People V. Schuyler (106 N. Y. 398),, 95, 
 
 556. 
 People V. Scott (153 N. Y. 40), 665. 
 People V. Severance(67Hun,182),580, 
 
 704. 
 People V. Sharp (107 N. Y. 427), 82, 
 
 666. 
 People V. Shea (147 N. Y. 78), 666. 
 People V. Sheriff (29 Barb. 374), 88. 
 People V. Sherman (133 N. Y. 349), 495. 
 People V. Smiler (35 N. Y. State Rep. 1, 
 
 135 N. Y. 717), 543, 556. 
 People V. Smith (106 Cal. 73), 19, 358. 
 People V. Smith (105 Cal. 676), 660. 
 People V. Smith (59 Cal. 365), 000. 
 People V. Snyder (41 N. Y. 397), 189, 
 
 600, 619. 
 People V. Spencer (66 Hun, 149), 83. 
 People V. Stephenson (91 Hun, 613), 
 
 714. 
 People V. Stewart (75 Mich. 31), 85. 
 People V. Stokes (71 Cal. 363), 035. 
 People V. Stott(5 N. Y. Crim. Rep. 61), 
 
 533. 
 People V. Stout (4 Park. Cr. Rep. 71), 
 
 666. 
 
CXVUl 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 People V. Sweeney (41 Hun, 333), 73. 
 People V. Taylor (138 N. Y. 398, 53 
 
 N. Y. State Rep. 914), 554. 
 People V. Teague (106 N. C. 576), 561. 
 People V. Thiels (11 Utah, 341), 583. 
 People V. Thompson (93 Cal. 506), 709. 
 P-eopIe V. Tice (131 N. Y. 651), 80, 708. 
 People V. Tilley (84 Cal. 651), 31. 
 People V. Travers (88 Cal. 333), 361. 
 People V. Van Alstine (57 Mich. 63), 
 
 91. 
 People V. Vanderhoof (71 Mich. 158), 
 
 543. 
 People V. Van Eman (111 Cal. 144), 
 
 713, 713. 
 People V. Vedder (98 N. Y. 630), 146. 
 People T. Vernon (35 Cal. 49), 455. 
 People V. Ward (15 Wend. 331), 216. 
 People V. Wayman (138 N. Y. 585), 
 
 146. 
 People V. Webster (68 Hun, 11, 53 N. 
 
 Y. State Rep. 233', 261. 
 People V. Webster (139 N. Y. 73), 709. 
 People V. Wentworth (4 Cr. Rep. 310), 
 
 106. 
 People V. White (14 Wend. Ill), 23. 
 People V. Wilson (151 N. Y. 4b3), 670. 
 People V. Wilson (145 N. Y. 628), 491, 
 
 666. 
 People V. Wilson (109 N. Y. 345), 541. 
 People V. Wolf (95 Mich. 635), 667. 
 People V. Wong Wang (93 Cal. 277), 
 
 183. 
 People V. Wood (43 N. Y. State Rep. 
 
 393, 131 N. Y. 617), 194. 
 People V. Wood (136 N. Y. 249, 36 
 
 N. Y. State Rep. 952), 107, 108. 
 People V. Wright (89 Mich. 70), 257. 
 People V. Wright (93 Cal. 564), 557. 
 People V. Young (31 Cal. 563), 103. 
 People V. Zeyat (33 N. Y. 140), 483. 
 People ex rel. Babcock v. Murray (5 
 
 Hun, 43), 403. 
 People ex rel. Eakins v. Roosevelt (16 
 
 App. Div. 364), 35, 414. 
 People ex rel. Ramble v. McConnell 
 
 (155 111. 192), 186, 
 People ex rel. Henderson v. West- 
 chester County Sup'rs (147 N. Y. 
 
 1, 30 L. R. A. 74, 69 N. Y. State 
 
 Rep. 343), 643. 
 
 People ex rel. Henry v. Nostrand (46 
 
 N. Y. 375), 403. 
 People e;c rel. Manhattan R. Co. v. 
 
 Barker (152 N. Y. 417), 479. 
 People ex rel. Phelps v. Oyer & Ter- 
 miner (83 N. Y. 436), 706. 
 People ex rel. Purdy v. Com'rs of 
 
 Highways (54 N. Y. 276), 63. 
 People ex rel. Taylor c. Forbes (143 
 
 N. Y. 319), 73, 77. 
 People's Bank v. Bogart (81 N. Y. 101), 
 
 355, 
 People's Cairo Tel. Co. v. W. U. Tel. 
 
 Co. (166 111. 15), 192. 
 Peoria, etc. P. Co. v. Neill (16 111. 269), 
 
 134. 
 Peoria, D. & E. R. Co. v. Rice (144 III. 
 
 337), 259. 
 Pepper v. Barnett (23 Grat. 405), 573. 
 Pepper v. Caines (133 Pa. St. 114], 496. 
 Perine v. Grand Lodge A. 0. U. W. 
 
 (48 Minn. 83), 134, 148. 
 Perine v. Grand Lodge A. 0. XJ. W. 
 
 (40 Am. & Eng. Corp. Cas. 407), 
 
 363. 
 Perkins v. Concord R R. Co. (44 N. H. 
 
 223), 129. 
 Perkins v. Hasbrook (155 Pa. St. 494), 
 
 461. 
 Perkins v. Peterson (3 Colo. App. 243), 
 
 373. 
 Perkins v. Stimel (114 N. Y. 359), 67. 
 Perkins v. Towle (59 N. H. 583), 456. 
 Perot V. Cooper (17 Colo. App.-80, 31 
 
 Am. St. Rep. 358), 617. 
 Perrins v. Cooley (39 N. J. L. 449), 
 
 334. 
 Perry v. State (94 Ala. 25), 36. 
 Perry v. State (87 Ala. 30), 567. 
 Persse v. Atlantio-Paciao R. Tunnel 
 
 Co. (5 Colo. App. 117), 718. 
 Petch V. Lyon (9 Q. B. 147), 310. 
 Peters v. Fowler (41 Barb. 467), 399. 
 Peters v. Peters (53 N. Y. State Eep. 
 
 169), 63.3. 
 Peters v. Peters (3 Misc., N. Y., 264), 
 
 166. 
 Peterson v. Chemical Bank (33 N. Y. 
 
 21), 374. 
 Peterson v. Chicago, R. I. & P. B, Co. 
 
 (80 Iowa, 93), 308. 
 
TABLE OF CASES. 
 
 CXIX 
 
 References are to pages. 
 
 Peterson v. Kate (83 Md. 194), 709. 
 Peterson v. Knoble (35 Wis. 80), 344 
 Peterson v. Russell (29 L. R. A. 613, 
 
 63 Minn. 230), 311, 557. 
 Peterson v. Sherry Lumber Co. (90 
 
 Mich. 83), 350. 
 Peterson v. State (83 Md. 194), 714. 
 Peto V. Kayne (3 Esp. 134), 309. 
 Petrie v. Petrie (126 N. Y. 683), 161. 
 Petrie v. Phoenix Ins. Co. (133 N. Y. 
 
 187, 43 N. Y. State Rep. 478), 279, 
 
 389. 
 Pettibone v. Smith (37 Mich. 579, 581), 
 
 556. 
 Pettit V. Geisler '(58 How. Pr., N. Y., 
 
 195), 156, 165. 
 Peyser v. Myers (135 N. Y. 509, 48 N. 
 
 Y. State Rep. 825), 410. 
 Pfiel V. Kemper (3 Wis. 815), 288. 
 Pfiel V. Vaubatenberg (2 Camp. 439), 
 
 372. 
 Pharr v. Bachelor (2 Ala. 287), 66. 
 Phelps V. N. Y, N. H. & H. R. Co. (17 
 
 App. Div. 893), 633. 
 Phelps V. Prew (3 E. & B. 430), 351. 
 Pliiladelphia v. McGinn (173 Pa. St. 
 
 381), 701. 
 Philadelphia, etc. R. Co. v. Howard 
 
 (13 How., U. S., 307), 69. 
 Philadelphia L., S. D. & Ins. Co. v. 
 
 Philadelphia & E. R. Co. (177 Pa. 
 
 St. 88), 496. 
 Philadelphia & T. R Co. v. Stimpson 
 
 (14 Pet. 448;, 706. 
 Philbin v. Patrick (3 Abb. Ct. App. 
 
 Dec. 605, 9 Hun, 847), 472. 
 Philhower v. Todd (11 N. J. Eq. 812), 
 
 125. 
 Phillip V. Evans (64 Mo. 17), 633. 
 Phillip V. Herndon (78 Tex. 878), 497. 
 Phillip V. McCombs (53 N. Y. 494)i 394. 
 Phillip V. Milwaukee & N. R. Co. (77 
 
 Wis. 349), 610. 
 Phillips V. Bartlett (9 Bosw. 678), 56. 
 Phillips V. Cooper (93 Ga. 639), 148. 
 Phillips V. Goldtree (74 Cal. 151), 67. 
 Phillips V. Imthurn (L. R. 1 C. P. 463), 
 
 124. 
 Phillips V. Insurance Co. (56 Hun, 640, 
 
 31 N. Y. State Rep. 639), 127. 
 
 Phillips V. Kingsfield (19 Me. 875), 34. 
 Phillips V. McNab (30 N. Y. State Rep. 
 
 853, 16 Daly, 150), 685. 
 Phillips V. Phillips (4 Q. B. D. 137), 8. 
 Phillips V. Starr et al. (26 Iowa, 349). 
 
 571. 
 Phillips V. Wimburn(4 Car. &P. 273), 
 
 604. 
 Phillips & C. Const. Co. v. Seymour 
 
 (91 U. S. 646), 56. 
 Phipps V. Hamburg (30 L. R A. 513), 
 
 313. 
 Phoenix Clay Pottery Works v. Pitts- 
 burgh & L. E. R Co. (139 Pa St. 
 
 384), 611. 
 Phoenix Ins. Co. v. Pickle (3 Ind. App. 
 
 332), 645. 
 Pickard v. Bryant (93 Mich. 430), 705. 
 Pickard v. Sears (6 A & E. 469, 474), 
 
 120. 
 Pickett V. Green (130 Ind. 584), 301. 
 Pidcock V. Potter (68 Pa. St. 843), 587. 
 Pier V. Heinrichoflfen (52 Mo. 333), 53. 
 Pierce v. Cohassett M. F. Ins, Co. (183 
 
 Mass. 573), 58. 
 Pierce v. Indseth (106 XJ. S. 546), 186. 
 Pierce v. Lutesville (35 Mo, App. 317), 
 
 683. 
 Pierce v. State (53 Ga. 865), 588. 
 Pierce v. Van Dusen (47 U. S. App. 
 
 889), 484, 495. 
 Pierce v. Wallace (18 Cal. 165), 346. 
 Pierce v. Wilson (34 Ala. 596), 333. 
 Pierce y. Worthy (14 Wis. 9), 575. 
 Piers V, Piers (3 H. L. C. 531), 434. 
 Pierse v. Irvine (1 Minn. 309), 307, 811. 
 Pierse v. Kile (80 Fed. Rep. 865), 348. 
 Pierson v. Arkenburgh (36 N. Y. State 
 
 Rep. 83, 136 N. Y. 668), 262. 
 Pierson v. Atlantic Bank (77 N. Y. 
 
 304), 298. 
 Pierson v. Hoag (47 Barb. 343), 490. 
 Pierson v. People (79 N. Y. 434), 666. 
 Pike V. Chicago (155 111. 654), 684. 
 Pike V. Fay (101 Mass. 134, 136), 363. 
 Pike V. Wiggin (8 N. H. 356), 314. 
 Pile V. McBratney (15 111. 314), 113. 
 Pillow V. Thomas (57 Tenn. 130), 105. 
 Pilmer v. Branch Bank (16 Iowa, 331), 
 
 316. 
 
cxx 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Pilots of Newcastle v. Bradley (3 E. 
 
 & B. 431), 592. 
 Pim T. Currell (6 M. & W. 234, 2C6), 
 
 419. 
 Pincard v. State (30 Ga. 757), 76. 
 Pindar v. Resolute F. Ins. Co. (47 
 
 N. Y. 115, 117), 268. 
 Pinkerton v. Woodward (33 Cal. 557), 
 
 607. 
 Pinkham v. Cockall (77 Mich. 265). 
 
 613. 
 Pinuey v. Orth (88 N. Y. 447), 161, 163, 
 
 175. 
 Piper V. Fosher (131 Ind. 407), 153, 
 
 173. 
 Pirie v. Wyld (11 Ont. Rep. 422), 139. 
 Pittman v. State (35 Fla. 648), 567. 
 Pittman v. State (93 Ga. 480), 669. 
 Pitton V. Walker (1 Str. 163), 435. 
 Pitts V. Lewis (81 Iowa, 51), 193. 
 Pitts V. Wilder (1 N. Y. 535), 506. 
 Pittsburgh R. Co. v. Ramsey (33 Wall. 
 
 522), 604. 
 Pittsburgh, etc. R. Co. v. Williams (74 
 
 Ind. 462), 606. 
 Pizzarro, Matter of (3 Wheat. 227), 
 
 204. 
 Place V. Minister (65 N. Y. 89), 406. 
 Piano Mfg. Co. v. Frawley (68 Wis. 
 
 577), 85. 
 Piano Mfg. Co. v. Root (3 N. Dak. 
 
 165), 307. 
 Plainer v. Platner (78 JSl. Y. 90), 154. 
 Plato V. Reynolds (27 N. Y. 588), 31. 
 Plaxton V. Dane (10 B. & C. 17), 419. 
 Pleasant v. State (15 Ark. 624), 73. 
 Plenty v. Beadle (43 Hun, 568), 63. 
 Plock & Co. V. Cobb (64 Ala. 137, 156), 
 
 041. 
 Plumer v. Brisco (11 Q. B. 46), 226. 
 Plummer v. Currier (53 N. H. 279), 
 
 199. 
 Plummer v. Ossipee (59 N. H. 55), 
 
 500. 
 plummer v. Struby-Estabrooke M. 
 
 Co. (23 Colo. 190), 467. 
 Pocock V. Billings (3 Bing. 369), 313. 
 Foe V. Darrah (20 Ala. 383), 346, 
 Poffinbarger v. Smith (37 Neb. 78S), 
 
 567. 
 
 Poignard v. Smith (8 Pick. 273), 846. 
 Point V. United States (151 U. S. 396), 
 
 665. 
 Pokriefka v. Muckurat (91 Mich. 399), 
 
 11. 
 Polhans v. Atchison, T. & S. F. R. Co. 
 
 (45 Mo. App. 153), 613. 
 Polini V. Gray (13 Ch. D. 411, 419, 428, 
 
 436, 430), 439. 
 Polk V. State (63 Ala. 337), 588. 
 Pollack V. Pollack (71 N. Y. 137), 145. 
 Pollard Y. Hagan (8 How., U. S., 318), 
 
 653. 
 Pollard V. Scott (Pea. 17), 419. 
 Poison V. Ingram (33 S. C. 541), 446. ' 
 Pomf rey v. Saratoga (104 N. Y. 469), 1 5. 
 Pontius V. People (83 N. Y. 339), 666. 
 Pool V. Dean (152 Mass. 589), 556. 
 Pool V. Myers (21 Miss. 466), 233. 
 Poole V. Dicas (1 Bing. N. C. 649), 439. 
 Poole V. Huskinsoa (11 M. & W. 827), 
 
 651. 
 Pope V. Allen (90 N. Y. 298), 163, 167. 
 Pope V. Asker (1 Ired. 16), 574. 
 Pope V. Dodsou (58 111. 360), 639. 
 Pope V. Kansas City Cable Co. (99 Mo. 
 
 400), 634. 
 Pope V. Terre Haute Car & Mfg. Co. 
 
 (107 N. Y. 01, ] 1 N. Y. State Rep. 
 
 309), 370. 
 Porter v. County F. Nat Bank of 
 
 Williams (4 Ind. App. 501), 464. 
 Porter v. Cunningham (7 Wend. 173), 
 
 69. 
 Porter v. Dunn (131 N. Y. 313, 61 Hun, 
 
 310), 160, 403. 
 Porter v. Gardner (60 Hun, 571, 39 N. 
 
 Y. State Rep. 671), 388, 520. 
 Porter v. Hale (23 Can. S. Q. 265), 247. 
 Porter v. Judson (1 Gray, 175), 441. 
 Porter v. State (55 Ala. 95). 218. 
 Porter v. Waltz (108 Ind. 40), 485. 
 Porter v. Wilson (13 Pa. St. 641), 846. 
 Portier v. Barclay (15 Ala. 439), 341. 
 Pasachane Water Co. v. Standart (97 
 
 Cal. 476), '547. 
 Post V. Post (70 111. 484), 620., 
 Potter V. Adams (135 Mo. 118), 348. 
 Potter V. Bissell (3 Lans., N. Y., 205), 
 
 697. 
 
TABLE OF CASES. 
 
 CXXl 
 
 References are to pages. 
 
 Potter V, Deyo (19 Wend. 361), 44 
 Potter V. Hopkins (25 Wend. 417), 324. 
 Potter V. Kennedy (81 Iowa, 96), 644. 
 Potter V. Mellen (41 Minn. 487), 199. 
 Potter V. Nortli (1 Ventr. 387, 13 Hen. 
 
 VII, 16 B., pi. 14), 648. 
 Potter V. Ogden (49 N. Y. State Rep. 
 
 839, 136 N. Y. 384), 361. 
 Potter V. United States (155 U. S. 488), 
 
 666. 
 Potts V. Blaokwell (4 Jones, N. C, Eq. 
 
 58), 365. 
 Potts V. Meyer (86 N. Y. 302), 155, 165. 
 Potts V. Schumacker (35 L. E. A. 397, 
 
 84 Md. 535), 483. 
 Pouoher v. Scott (98 N. Y. 433), 161. 
 Powell V. Ford (3 Stark. 164), 573. 
 Powell V. Olds (9 Ala. 861), 388. 
 Powell V. Tarry (77 Va. 350), 199. 
 Power V. Kent (1 Cow. 311), 86. 
 Powers V. Bowdle (3 N. D. 107), 190. 
 Powers V. Savin (139 N. Y. 653), 464. 
 Powers V. McKenzie (90 Tenn. 167), 
 
 572, 579. 
 Powers V. State (33 Tex. App. 43), 587. 
 Prairie School Tp. v. Haselen (3 N. D. 
 
 328), 302. 
 Pratt V. Castle (91 Mich. 484), 303. 
 Pratt V. Elkins (80 N. Y. 198), 154. 
 Pratt V. N. Y. C. & H. R. R. Co. (59 
 
 N. Y. State Rep. 38, 77 Hun, 139), 
 
 683, 717. 
 Pratt V. Patterson (81 Pa. St. 114), 475. 
 Pray v. Rhodes (43 Minn. 93), 300. 
 Prentice v. Bates (93 Mich. 234), 555. 
 Prentice v. Dike (6 Duer, 220), 57. 
 Press Pub. Co. v. McDonald (36 L. R. 
 
 A. 531), 693. 
 Preston v. American Linen Co. (119 
 
 Mass. 400), 204 
 Preston v. Bowers (13 Ohio St 1, 18), 
 
 514 
 Preston v. KUington (74 Ala. 133), 313. 
 Preston v. Maurice (43 Iowa, 549), 365. 
 Price V. Conn. Mut. L. Co. (48 Mo. 
 
 App. 381), 677. 
 Price V. Edmunds (10 B. & C. 578), 
 
 315. 
 Price V. Gray (13 Ch. D. 411, 420, 430), 
 
 439. 
 
 Price V. Hartshorn (44 N. Y. 94), 534 
 Price V. Paige (4 Ves. 679), 393. 
 Price V. Philadelphia, W. & B. R. Co. 
 
 (84 Ind. 506), 006. 
 Price V. Reid (38 Mo. App. 489), 300. 
 Price V. Richmond & D. R. Co. (38 
 
 D. C. 118), 351, 551, 571. 
 Price V. State (18 Ohio St. 418), 317, 
 
 218. 
 Price V. Tallman (1 N. J. L. 447), 621. 
 Price V. Ward (35 N. J. L. 285), 116. 
 Prichard v. James (93 Ky. 306), 273. 
 Prichard v. Rudd (42 U. S. App. 186), 
 
 645. 
 Prideaux v. Mineral Point (43 Wis. 
 
 513), 489. 
 Pridham v. Weddington (74 Tex. 354), 
 
 557. 
 Priest V. Glenn (51 Fed. Rep. 400). 715. 
 Primm v. Stewart (7 Tex. 178), 638. 
 Prince v. Blackburn (2 East, 250), 331. 
 Prince v. Crocker (32 L. R A. 610, 106 
 
 Mass. 347), 190. 
 Prince v. Sams (7 A. & E. 637, 634), 
 
 333, 714 
 Pringle v. Pringle (59 Pa. SL 389), 507. 
 Pritchett v. Clark (4 Harr., Del., 280), 
 
 116. 
 Proc-General v. Williams (31 L. J., 
 
 P. M. & A., 157), 431. 
 Proctor V. Old Colony R. Co. (154 
 
 Mass. 351), 315. 
 Prosius V. Mclntire (5 Barb. 484), 388. 
 Providence Co. v. Steamship Co. (13 
 
 R I. 348), 654 
 Provis V. Reed (5 Bing. N. C. 435), 232. 
 Prudential Ins. Co. v. Fredericks (41 
 
 111. App. 419), 213. 
 Prune v. Thompson (4 Q. B. 543, 553), 
 
 593. 
 Pruitt V. State (93 Ala. 41), 38. 
 Puckett V. State (1 Sneed, 355), 38. 
 Pugh V. Ayers (47 Mo. App. 590), 561. 
 Pugh V. Fairmount G. & S. Min. Co. 
 
 (113 U. S. 338), 70. 
 PuUen V. Hutchinson (35 Me. 349), 619. 
 PuUen V. Monk (83 Me. 412), 396. 
 Pulliam V. State (88 Ala. 1), 451, 453. 
 Pullman Palace Car Co. v. Harkins 
 
 (55 Fed. Rep. 933), 550. 
 
cxxu 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Pullman Palace Car Co. v. Smith (79 
 
 Tex. 468), 566. 
 Purdom v. Boyd (82 Tex. 138), 602. 
 Purdue v. Nofifsinger (15 Ind. 386), 58. 
 Puryear's Case (83 Va. 51), 451. 
 Pusey T. N. J. E. Co. (14 Abb. Pr., 
 
 N. a, 441), 381. 
 Pusey V. Wright (31 Pa. St 387, 394), 
 
 339. 
 Puteibiugh V. Puterbaugh (7 Ind. 
 
 App. 280), 600. 
 Putnam v. Sullivan (4 Mass. 45, 53), 
 
 120. 
 Putnam v. United States (162 U. S. 
 
 687), 711. 
 
 Q. 
 
 Quanier v. Quanier (36 W. Va. 310), 
 
 157. 
 Quick V. River Forest (130 111. 323), 
 
 118. 
 Quimby v. Lowell (89 Me. 547), 122. 
 Quincy H. R. & C. Co. v. Gnuse (137 
 
 111. 264), 33. 
 Quinlan v. City of Utica (74 N. Y. 603), 
 
 15. 
 Quinn v. Lloyd (41 N. Y. 349), 47. 
 Quinn v. State (14 Ind. 589), 30. 
 Qainn v. Sterne (26 Ga. 224), 311. 
 
 R. 
 
 E. V. Allen, etc. (1 Moo. C. C. 154), 388. 
 R. V. Barnsley (1 M. & Sehv. 337), 677. 
 R. V. Barr (4 Camp. 16), 651. 
 R. V. Bedfordsliire (4 E, & B. 535, 543), 
 
 417. 
 R. V. Birmingham (31 L. J. M. C. 63), 
 
 457. 
 R, V. Blake (6 Q. B. 126), 499. 
 R. V. Bliss (7 A. & E. 550), 417. 
 R. V. Broughton (3 Str. 1229, 1230), 384. 
 R. V. Burdette (4 B. & A. 95), 662. 
 R. V. Castleton (7 T. R. 236), 242. 
 R V. Chute (46 Q. B., U. G, 555), 204. 
 R V. Clewes (4 C. & P. 221), 663. 
 R. V. Cole (1 Phill. Ev. 508), 20. 
 R. V. Cotton (3 Camp. 444), 418. 
 R. V. Duncoojbe (8 C. & P. 369), 699. 
 
 R V. Drummond (1 Lea. C. C. 337), 453. 
 R V. Eldridge (R & R 440), 662. 
 R V. Eriswell (3 T. R 707), 415. 
 R V. Erith (8 East, 539), 429. 
 R. V. Esdaile (1 Post. & F. 313), 499. 
 R V. Exeter (L. R 4 Q. B. 341), 457. 
 R V. Farrington (R & R 207), 667. 
 R V. Flaherty (3 C. & K. 783), 434. 
 R V. Gardiner (8 C. & P. 739), 385. 
 R V. Haworth (4 C. & P. 354), 241. 
 R V. Hazy (3 C. & P. 458), 338. 
 R V. Home Tooke (35 How. St Tr. 71, 
 
 73), 573. 
 R V. Inhabitants of Brampton (10 
 
 East, 283, 289), 641. 
 R V. Inhabitants of Chorley (12 Q. B. 
 
 515), 652. 
 R V. Inhabitants of East Mark (11 
 
 Q, B. 877), 651. 
 R. V. Kea (11 East 133), 144. 
 R V. Lloyd (1 Camp. 260), 651. 
 R V. Luffe (8 East 193, 301, 207), 198. 
 R V. Martin (L. R 1 C. C. 378), 256. 
 R V. Mayhew (2 C. & P. 315), 385. 
 R V. Mazagora (R & R 291), 667. 
 R V. Milton (1 C. & K 58), 419. 
 R V. Montague (4 B. & C. 598), 647. 
 R, V. Muscot(10 Mod. 193), 384. 
 R V. Nash (3 Den. C. C. 493), 667. 
 R. V. Overseers of Birmingham (1 B. 
 
 & S. 703, 768, 770), 650. 
 R V. Pike (8 C. & P. 598), 458. 
 R v. Ramsden (2 C. & P. 603), 699. 
 R V. Sellers (MS. Q.B., Coram Brooke, 
 
 J., 1796), 454. 
 R V. Sheppard (R. & R 169), 667. 
 R V. Sourton (5 A. &E. 180), 144. 
 R V. Strand Board of Works (4 B. & 
 
 S. 526), 654. 
 R. V. St Benedict (4 B. & A. 447), 650. 
 P. V. St George (9 C, & P. 483, 488), 
 
 714. 
 R V. St Giles (1 E. & B. 643), 249. 
 R V. Tooke (25 St Tr. 446, 447), 339. 
 R. V. Turberfeld (34 L. J. M. C. 20), 20. 
 R V. Vaughn (18 How. St Tr. 535), 
 
 886. 
 R V. Watson (1 Camp. 215), 230. 
 R V. Whally (3 C. & K 376), 256. 
 R V. White (R. & R 508), 663. 
 
TABLE OF OASES. 
 
 CXXIU 
 
 References are to pages. 
 
 E. V. Whitehead (L. E. 1 C. C. R 33), 
 
 132. 
 R. V. Wright (3 B. & Ad. 681), 650. 
 R. V. Yates (C. & M. 159), 385. 
 R. V. Yewins (2 Camp. 637), 36. 
 Radcliflf V. United Ins. Co. (7 Johns. 
 
 51), 440. 
 Rader v. McElvan (21 Oreg. 56), 303. 
 Radford v. Tesse (3 Dev. & Bat. 39), 31. 
 Rahm v. State (30 Tex. App. 310), 94. 
 Railing v. Com. (110 Pa. St 100), 
 
 455. 
 Railroad Co. v. Gladmon (15 Wall. 
 
 401), 340. 
 Railroad Co. v. Pollard (33 Wall. 341), 
 
 133. 
 Railroad Eq. Co. v. Blair (145 N. Y. 
 
 607), 110. 
 Railway Co. v. AUerton (18 Wall. 233), 
 
 379. 
 Railway Co. v. Kell (Tex. App., 16 
 
 S. W. Rep. 936), 307. 
 Rains v. State (88 Ala. 91), 504. 
 Ramsen t. Metropolitan, etc. R. Co. 
 
 (9 App. Div. 533), 473. 
 Ramming v. Caldwell (43 111. App. 
 
 175), 307. 
 Rand v. Johns (29 Tex. App. 165), 386. 
 Randall v. Richmond & D. R. Co. (107 
 
 N. C. 748), 612. 
 Randolph v. Lane (57 Ind. 115), 353. 
 Randolph v. Loughlin (48 N. Y. 456), 
 
 575. 
 Rank v. Grote (110 N. Y. 12), 151. 
 Ranney v. St Johnsbury & L. C. R. 
 ■ Co. (67 Vt 594), 701. 
 Rapids V. Bennett (106 Mich. 528), 586. 
 Rass V. Sebastian (160 111. 603), 579. 
 Rau V. People (63 N. Y. 277), 187. 
 Raubitschek v. Blank (80 N. Y. 478), 
 
 158. 
 Raux V. Brand (90 N. Y. 309), 474. 
 Rawlinson v. Greeves (3 ' Bulst 237), 
 
 647. 
 Rawson v. Haigh (3 Bing. 99, 103, 
 
 104), 13. 
 Rawson v. Thompson (81 Ga. 171), 507. 
 Ray V. Castle (79 N. C. 580), 443. 
 Raybourn v. Mason Lumber Co. (57 
 
 Mich. 373), 173. 
 
 Raymond v. Cummings (1 P. & B., 
 
 New Bruns., 544), 456. 
 Raymond v. Richardson (4 E. D. Smith, 
 
 171), 55. 
 Rea V. Jaffray (83 Iowa, 331), 247. 
 Read v. Amidon (41 Vt 15, 18), 607. 
 Read v. Bank of Attica (124 N. Y. 671), 
 
 309. 
 Read v. Brookman (3 T. R. 158), 647. 
 Read v. Jackson (1 East, 355), 417, 431, 
 
 694. 
 Read v. Passer (Pea. 330), 434. 
 Reade v. Clark's Cove Guano Co. (47 
 
 Hun, 410, 14 N. Y. State Rep. 561), 
 
 355. 
 Readman v. Conway (126 Mass. 374), 
 
 204. 
 Real V. People (42 N. Y. 370), 83, 219, 
 
 557, 707. 
 Reast V. Donald (84 Tex. 648), 586. 
 Reavis v. Orenshow (105 N. C. 369), 
 
 622. 
 Rebman, Matter of (41 Fed. Rep. 867), 
 
 188. 
 RechmuUer v. Philadelphia F. Ass'n 
 
 (38 Mo. App. 118), 342. 
 Redd V. Muscogee R. R. Co. (48 Ga. 
 
 103), 122. 
 Reddick v. Keesling (129 Ind. 138). 167. 
 Redewill v. Gillen (4 N. M. 78), 359. 
 Redfield v. Redfield (10 N. Y. 124), 151. 
 Redfield v. Stett (4 N. Y. State Rep. 
 
 864), 155. 
 Redfield v. Stett (10 N. Y. State Rep. 
 
 367), 179. 
 Redmond v. Anderson (18 Ark. 449), 
 
 604. 
 Redmond v. Industrial Ben. Ass'n (150 
 
 N. Y. 167), 95, 634. 
 Reed v. Hayt (17 N. Y. State Rep. 137, 
 
 51 N. Y. Supr. Ct 131), 68. 
 Reed v. Insurance Co. (95 U. S. 28, 30), 
 
 368. 
 Reed v. McConnell (101 N. Y. 270, 1 
 
 N. Y. State Rep. 33), 531, 535. 
 Reed v. McCourt (41 N. Y. 435), 127. 
 Reed v. Murry (Cal., 34 Pac. Rep. 841), 
 
 435. 
 Reed v. Nicholson (37 Mo. App. 646), 
 
 309. 
 
CXXIV 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Reed v. Reed (135 111. 482), 399, 601. 
 Reed v. Rome, W. & O. R. Co. (48 Hun, 
 
 231, 125 N. Y. 708, 16 N. Y. State 
 
 Rep. 58), 681. 
 Reed v. Vancleve (27 N. J. L. 352), 125. 
 Reed v. W. U. Tel. Co. (135 Mo. 161), 
 
 687. 
 Reese v. Wood (5 B. & S. 364), 133. 
 Reeve v. Bonville (5 Del. Ch. 1), 626. 
 Reeve v. Long (Holt, 286), 239. 
 Reeves v. Brayton (86 S. C. 384), 336. 
 Reeves v. State (93 Ala. 103), 535. 
 Reg. V. Heaton (1 Lewin's C. C. 116), 
 
 674. 
 Reg. V. Home Tooke (25 St. Tr. 71), 
 
 578. 
 Reg. V. Mullins (8 Cox's Crim. Cas. 
 
 520), 147. 
 Reg. V. Thompson (1893, 2 Q. B. 12), 
 
 216. 
 Reg. V. Torpey (12 Cox, 45), 675. 
 Regents, etc. v. Detroit F. M. Soc. (12 
 
 Mich. 188), 68. 
 Reggs V. Powell (142 111. 453), 361. 
 Regina v. Bedingfield (14 Cox's Or. 
 
 Cas. 341), 490. 
 Reid V. Jordan (56 Ga. 62), 600. 
 Reid V. Wilson (41 N. J. L. 29), 186. 
 Reinhardt v. Mentasti (Eng. Ch. Div., 
 
 61 L. T. Rep., N. S., 328, 40 Alb. 
 
 L. J. 490), 360. 
 Reis V. Hellman (25 Ohio St. 180), 200. 
 Reliance Lumber Co. v. Western 
 
 Union Tel. Co. (58 Tex. 394, 44 
 
 Am. Rep. 622), 245. 
 Remsen v. Graves (41 N. Y. 471), 124. 
 Remsen v. Wheeler (121 N. Y. 685, 31 
 
 N. Y. State Rep. 385), 341. 
 Renard v. Sampson (13 N. Y. 561), 
 
 305. 
 Renihan v. Dennin (103 N. Y. 573), 85. 
 Resseguie v. Mason (58 Barb. 89), 159. 
 Retan v. Lake Shore & M. S. R. Co. 
 
 (94 Mich. 146), 552. 
 Revis V. Smith (18 Q B. 126), 385. 
 Rex V. Bedfordshire (4 E. & B. 541), 
 
 416. 
 Rex V. Bliss (7 Ad. & El. 555), 420. 
 Rex V. Brain (6 C. & P. 350), 664. 
 Rex V. Burdette (4 B. & Aid. 33, 149), 
 
 660, 670. 
 
 Rex V. Erith (8 East, 542), 436. 
 Rex V. Gesburn (5 East, 57), 240. 
 Rex V. Harding (1 Ann, M. & O. 340), 
 
 218. 
 Rex V. Hood (1 Moody's Cr. Cas. 281), 
 
 143. 
 Rex V. King (2 T. & R. 234), 333. 
 Rex V. Jones (3 Camp. 121), 190. 
 Rex V. Kingston-upon-Hull (7 B. & C. 
 
 611), 326. 
 Rex V. Leigh (10 Ad. & El. 398), 421. 
 Rex V. Luffe (8 East, 202), 186. 
 Rex V. Miller (3 Wils. 427), 560. 
 Rex V. Shaw (1 Lewin's C. C. 116), 
 
 674. 
 Rex V. Sutton (8 A. E. 516), 431. 
 Rex V. Watson (3 Stark. 129), 235. 
 Rex V. Watson (2 T. R 201), 241. 
 Rex V. Withers (5 T. R 442), 184. 
 Rex V. Woodcock (1 Leach, C. C. 503), 
 
 454. 
 Rex V. Worth (4 Q. B. 133), 459. 
 Rey V. Simpson (33 How., U. S., 341), 
 
 311. 
 Reyburn v. Helotti (10 Mo. 597), 572. 
 Reynolds v. Adden (136 U. S. 348), 122. 
 Reynolds v. Com. F. Ins. Co. (47 N. Y. 
 
 597, 605), 268. 
 Reynolds v. Great Northern R Co. 
 
 (39 L. R A. 695, 33 U. S. App. 
 
 597), 715. 
 Reynolds v. Haywood et al. (59 N. Y. 
 
 State Rep. 47, 77 Hun, 131), 356. 
 Reynolds v. Iowa & N. Ins. Co. (80 
 
 Iowa, 563), 497. , 
 
 Reynolds v. Lawton (43 N. Y. State 
 
 Rep. 578, 63 Hun, 596), 564. 
 Reynolds v. Niagara Falls (81 Hun, 
 
 353), 567. 
 Reynolds v. Reynolds (1 Dick. 874), 
 
 636. 
 Reynolds v. Reynolds (13 Ky. L. Rep. 
 
 793), 388. 
 Reynolds v. Robinson (64 N. Y. 589), 
 
 533. 
 Reynolds v. Robinson (18 N. Y. 335), 
 
 339. 
 Reynolds v. Schaflfer (91 Mich. 494, 30 
 
 Am. St Rep. 492), 143. 
 Reynolds v. Sumner (126 111. 58), 444. 
 Rhine v. Robinson (37 Pa. St. 30), 477. 
 
TABLE OF CASES. 
 
 cxxv 
 
 References are to pages. 
 
 Rhino V. Emery (73 Fed. Rep. 382), 51. 
 Rhoads v. Selin (4 Wash., D. C, 715, 
 
 718), 348. 
 Rhode V. McLean (101 III. 467), 253. 
 Rhodes v. Farmer (17 How., U. S., 464), 
 
 321. 
 Rhodes v. Newhall (136 N. Y. 474, 38 
 
 N. Y. State Rep. 431), 266. 
 Rhodes v. Robie (9 App. D. C. 305), 
 
 604. 
 Rhodes v. State (128 Ind. 180, 35 Am. 
 
 St Rep. 429), 505. 
 Rhodes v. Wood (93 Tenn. 703), 400. 
 Rhodes' Estate (10 Pa. Co. Ct. Rep. 
 
 386), 638. 
 Rhyner v. Carver (84 Wis. 181), 375. 
 Rice V. Barrett (16 Mass. 313), 119. 
 Rice V. Bunce (49 Mo. 231), 123. 
 Rice V. Mead (83 How. Pr. 445), 186. 
 Rice V. Motley (24 Hun, 143), 161. 
 Rice V. Ruddiman (10 Mich. 125), 654. 
 Rice V. Sayles (33 III. Ap.p. 189), 602. 
 Rice V. Shooli (37 Ark. 137), 185. 
 Rich V. Eldridge (43 N. H. 153), 463. 
 Rich V. Flanders (39 N. H. 304), 303. 
 Rich V. Forsyth (41 Md. 389;, 334. 
 Rich V. New York Central Ry. Co. (87 
 
 N. Y. 389), 49. 
 Rich V. Rich (16 Wend. 663), 49. 
 Rich V. Sowles (64 Vt. 408), 383. 
 Richards v. Bassett (10 B. & C. 663), 
 
 434. 
 Richards v. Day (137 N. Y. 183, 50 
 
 N. Y. State Rep. 389), 64 
 Richards v. Michigan C. R. Co. (40 
 
 Fed. Rep. 165), 188. 
 Richards v. State (83 Wis. 172), 257. 
 Richards v. State (36 Neb. 71), 8, 502. 
 Richardson v. Boston (19 How,, U. S., 
 
 263), 69. 
 Richardson v. Chickering (41 N. H. 
 
 380), 136. 
 Richardson v. Davis (70 Miss. 319), 41. 
 Richardson v. Dorman (28 Ala, 679), 
 
 464. 
 Richardson v. EUet (10 Tex. 190), 316. 
 Richardson v. Emery (33 N. H. 330), 
 
 465. 
 Richardson v. Freeman (56 Kan. 463), 
 
 563. . 
 
 Richardson v. Kelley (85 111. 491), 34. 
 Richardson v. Northrop (66 Barb. 85), 
 
 536. 
 Richardson v. Richardson (148 111. 563, 
 
 26 L. R A. 305), 161. 
 Richardson's Appeal (132 Pa. St. 292), 
 
 621. 
 Richey v. Daemicke (86 Midi. 647), 334. 
 Richmond v. State"(3 Greec, 533), 82. 
 Richmond v. Thomaston (38 Me. 333), 
 
 486. 
 Richmond's Appeal (59 Conn. 336), 553. 
 Richmond & D. R Co. v. Hissong (97 
 
 Ala. 331), 355, 387. 
 Richmond & D. R Co. v. Shomo (90 
 
 Ga. 74), 306. 
 Richmond, etc. R. Co. v. Shippen (3 
 
 Patt. & H., Va., 327), 116. 
 Richmond, R & E. Co. v. Bowles (93 
 
 Va. 738), 15. 
 Richmondville U. Sem. v. McDonald 
 
 (34 N. Y. 379), 563. 
 Richter v. Harper (95 Mich. 331), 677. 
 Richtmeyer v. Remsen (38 N. Y. 306), 
 
 45. 
 Rickards v. Hene (30 Neb. 359), 409. 
 Ridden v. Thrall (35 N. Y. State Rep. 
 
 913, 135 N. Y. 572), 374 
 Rider v. Alton, eta R. Co. (13 111. 516), 
 
 480. 
 Rider v. Hulse (24 N. Y. 372), 401. 
 Rider v. Miller (86 N. Y. 507), 531. 
 Ridgeley v. Johnson (11 Barb. 527), 
 
 438. 
 Riehl V. Evansville Ass'n (104 Ind. 70), 
 
 314. 
 Riendeau v. Vien (50 N. Y. State Rep. 
 
 309), 564 
 Rigdon V. Conley (141 III. 565), 374 
 Riggs V. American H. M. Soc. (35 Hun, 
 
 656), 164. 
 Riggs V. State (30 Miss. 63.5), 667. 
 Riggs V. Taylor (9 Wheat. 483, 486), 
 
 341. 
 Riley v. Boehm (167 Mass. 183), 467. 
 Riley v. State (88 Ala. 193), 584 
 Rindge v. Brock (10 Cush. 43), 463. 
 Rindskoff v. Myers (77 Wis. 649), 559. 
 Ringhouse v. Keever (49 111. 470), 437. 
 Ringo V. Richardson (53 Mo. 385), 456. 
 
CXXVl 
 
 TABIJE OF CASES. 
 
 Beferences are to pages. 
 
 Eiordan v. Ocean Steamship Co. (124 
 
 N. Y. 655, 33 N. Y. State Rep. 328), 
 
 606. 
 Eiordan v. Ocean Steamship Co. (36 
 
 N. Y. State Rep. 476), 610. 
 Ripley v. Babcook (13 Wis. 435), 635. 
 Ripley v. Seligman (88 Mich. 177), 156. 
 Rishton v. Nesbit.(3 Moo. & Rob. 554), 
 
 429. 
 Risley v. Wightman (13 Hun, 163), 847. 
 Ritchie v. Carpenter (2 Wash. 513), 633. 
 Rittenhouse v. Independent Line of 
 
 Teleg. (1 Daly, 474, 44 N. Y. 263), 
 
 354. 
 Rivers v. Rivers (36 S. C. 302), 389. 
 Rivers v. State (97 Ala. 72), 21. 
 Rives V. Lamar (94 Ga. 186), 337, 583. 
 Rix V. Hunt (16 App. Div. 541), 154. 
 Rixford v. Miller (49 Vt. 319), 625. 
 Rizzolo V. Com. (126 Pa. St. 124), 218. 
 Robb's Estate (37 S. C. 19), 437, 461. 
 Rober v. Bowe (30 Hun, 379), 533. 
 Robert v. Good (36 N. Y. 409), 68. 
 Roberts v. Bonaparte (73 Md. 191), 296. 
 Roberts v. Boston (149 Mass. 346), 686. 
 Roberts v. Cook (68 Ga. 335), 600. 
 Roberts v. Demens Wood- Working 
 
 Co. (Ill N. G 432), 691. 
 Roberts v. Dixon (GO Kan. 436), 246. 
 Roberts v. Doxen (Peake, 116), 343. 
 Roberts v. Fleming (31 Ala. 683), 540. 
 Roberts v. Karr (1 Camp. 262, n.), 651. 
 Roberts v. Matthews (77 Ga. 458), 50. 
 Roberts v. N. Y. Elev. R. Co. (40 N. Y. 
 
 State Rep. 454, 128 N. Y. 455, 44 
 
 Alb. L. J. 454), 681. 
 Roberts v. People (19 Mich. 401), 635. 
 Roberts' Will (8 Paige, 446), 564. 
 Robertson v. Craver (88 Iowa, 341), 14. 
 Robertson v. Du Bose (76 Tex. 1), 253. 
 Robertson v. Jackson (2 C. B. 412), 
 
 '393. 
 Robertson v. Reed (38 Mo. App, 33), 
 
 153. 
 Robertson v. Rowell (158 Mass. 94), 
 
 310. 
 Robertson v. Stead (135 Mo. 135, 33 
 
 L. R A. 203), 60.3. 
 Robertson v. Teal (9 Tex. 344), 185. 
 Eobbins v. Fuller (34 N. Y. 570), 410. 
 
 RobbinsV. State (8 Ohio St 111, 163), 
 
 453. 
 Robinson v. Bland (1 W. Bl. 256, 258, 
 
 359), 641. 
 Robinson v. Cutler (163 Mass. 377), 7. 
 Robinson v. Dibble's Adm'r (17 Fla. 
 
 457), 465. 
 Robinson v. Frost (14 Barb. 503), 44. 
 Robinson v. Gilman (7 Shepl. 399), 
 
 334, 339. 
 Robinson v. Hope (103 Mo. 410), 406. 
 Robinson v. Howard (5 Colo. 428), 116. 
 Robinson v. Hunt (88 Hun, 885), 55. 
 Robinson v. Hutchinson (31 Vt. 443), 
 
 34, 314. 
 Robinson v. Janes (39 W. Va. 324), 
 
 127. 
 Robinson v. Mosely (93 Ala. 70), 336. 
 Robinson v. Mulder (81 Mich. 75), 474. 
 Robinson v. Smith (111 Mo. 305), 464. 
 Robinson v. Stuart (68 Me. 61), 199. 
 Robinson v, Waupaca (77 Wis. 544), 
 
 550. 
 Robinson v. Woodmansee (80 Ga. 549), 
 
 519. 
 Robinson v. Yarrow (7 Taunt 455), 
 
 120. 
 Robinson Cons. Min. Co. v. Craig (4 
 
 N. Y. State Rep. 478), 574. 
 Robson V. Kemp (4 Esp. 333), 13. 
 Roby V. Title Guarantee & T. Co. (1C6 
 
 111. 336), 133. 
 Rocco V. State (37 Miss. 357), 103. 
 Roche V. Brooklyn City, etc. R. Co. (7 
 
 N. Y. State Rep. 361, 105 N. Y. 
 
 294), 501, 503. 
 Rochester, etc. Co. v. Loomis (45 Hun, 
 
 94, 9 N. Y. State Rep. 592), 367. 
 Rook Island v. Cuinely (26 111. App. 
 
 173, 126 111. 408), 194. 
 Rock Island v. Steel (31 III. 543), 186. 
 Rock Island & P. R. Co. v. Potter (36 
 
 111. App. 590), 533. 
 Rockwell V. Brown (54 N. Y. 210), 375. 
 Rockwell V. Brown (36 N. Y. 207), 33. 
 Rockwood V. Poundstone (33 111. 199), 
 
 30. 
 Rodman v. Hoop (1 U. S. 85), 160. 
 Rodney v. Wilson (76 Mo. 123, 39 Am. 
 
 Rep. 499), 337. 
 
TABLE OF OASES. 
 
 CXXVll 
 
 References are to pages. 
 
 RodrianT. New York, N. H. & H. E. 
 
 Co. (125 N. Y. 536, 35 N. Y. State 
 
 Rep. 814), 610. 
 Rodrigues v. Hayes (76 Tex. 225), 644 
 Roe V. Rawlings (7 East, 279, 290), 439. 
 Roe V. Swezey (10 Barb. 251), 387. 
 Roe d. Eberall v. Lowell (H. Bl. 446), 
 
 648. 
 Roe d. Johnson v. Ireland (11 East, 
 
 289), 647. 
 Roer Iron Co. v. Trout (83 Va. 398), 
 
 133. 
 Rogers v. Allen (1 Camp. 309), 9. 
 Rogers v. Crook (97 Ala. 722), 244. 
 Rogers v. Denham (3 Gratt, Va., 300), 
 
 114. 
 Rogers v. Higgius (48 111. 311), 136. 
 Rogers v. Johnson (125 Mo. 203), 60.3. 
 Rogers v. MoGuire (90 Hun, 455), 165. 
 Rogers v. McGuire (N. Y., 47 N. E. 
 
 Rep. 452), 168. 
 Rogers v. Place (29 Ind. 577), 135. 
 Rogers v. Ritter (13 Wall. 317), 572. 
 Rogers v. Rogers (153 N. Y. 343), 165. 
 Roggers v. Metropolitan St. R. Co. 
 
 (118 Mo. 328), 51. 
 Eolb V.' Sandwich Enterprise Co. (36 
 
 111. App. 419), 549. 
 Rolfe V. Wyatt (5 C. & P. 181), 315. 
 Rollins V. Pueblo County Com'rs (15 
 
 Colo. 103), 281, 398. 
 Romero v. United States (1 Wall. 731), 
 
 198. 
 Romertze v. East River Nat Bank (49 
 
 N. Y. 577), 713. 
 Romeyn v. Sickles (108 N Y. 650, 13 
 
 N. Y. State Rep. 864), 41. 
 Ronig V. Ronig (2 Rawle, Pa., 241), 220. 
 Rooker v. Perkins (11 Wis. 79), 648. 
 Roop V. State (97 Tenn. 101, 35 L. R. 
 
 A. 556), 709. 
 Roosa V. Boston Loan Co. (133 Mass. 
 
 439), 501. 
 Roosevelt v. New York El. R. Co. (57 
 
 N. Y. Super. Ct. 438, 29 N. Y. 
 
 State Rep. 366), 679, 717. 
 Root V. Lowndes (6 Hill, 518), 695. 
 Roraback v. Pennsylvania Co. (58 
 
 Conn. 392), 538. 
 Rose v. Adams (32 Hun, 389), 201. 
 
 Rose V. Bateman (1 Ry. & M., Eng., 
 
 884), 76. 
 Rose V. Bryant (2 Camp. 321), 459. 
 Rose V. First Nat. Bank (91 Mo. 399), 
 
 581. 
 Rose V. Louisville, N. O. & T. R. Co. 
 
 (70 Miss. 90), 677. 
 Rose V. Mayor, etc. of Baltimore (51 
 
 Md. 856), 122. 
 Roseboomv.Billington (17 Johns. 182), \ 
 
 330, 347. 
 Rosebrough v. Ansley (35 Ohio St. 
 
 107), 122. 
 Rosenbaum v. Newbern (32 L. R. A. 
 
 133, 118 N. C. 83), 191. 
 Rosenbaum v. State (33 Ala. 354), 31. 
 Rosenstein v. Fox (150 N. Y. 354), 
 
 368. 
 Rosevelt Hospital v. New York El. R. 
 
 Co, (66 Hun, 633, 50 N. Y. State 
 
 Rep. 456), 360. 
 Ross V. Anstell (3 Cal. 183), 185. 
 Ross V. Boswell (60 Ind. 335), 188. 
 Ross V. Drinkhard (35 Ala. 434), 617. 
 Ross V. Read (1 Wheat 483), 336. 
 Ross V. Riddick (3 111. 73), 189. 
 Ross V. State (62 Ala. 224), 15. 
 Ross V. White (60 Vt 558), 486. 
 Rost V. Brooklyn Heights R. Co. (10 
 
 App. Div. 477), 257. 
 Roth V. Hamburgh A. P. Co. (59 N. Y. 
 
 Supr. Ct 49, 36 N. Y. State Rep. 
 
 89), 613. 
 Rothrock v. Perkinson (61 Ind. 39), 
 
 239. 
 Rouch V. G. W. R. Co. (1 Q. B. 51), 12. 
 Round Lake Ass'n v. Kellogg (58 
 
 Hun, 605, 34 N. Y. State Rep. 405), 
 
 332. 
 Rouse V. White (35 N. Y. 170), 231. 
 Rousseau v. Blean (130 N. Y. 177), 85. 
 Rousseau v. Blean (43 N. Y. State Rep. 
 
 871), 94. 
 Routledge v. The Northington Co. 
 
 (119 N. Y. 592, 30 N. Y. State Rep. 
 
 195), 319. 
 Rowe V. Brention (3 M. & R 367), 458. 
 Rowe V. Canney (139 Mass. 41), 309. 
 Rowe V. Jerome (18 Conn. 138), 303. 
 Rowell V. Fuller (59 Vt 688), 576. 
 
CXXVlll 
 
 TABLE or CASES. 
 
 Beferences are to pages. 
 
 Rowland v. Barton (3 Harr., Del., 288), 
 
 465. 
 Rowland v. Fowler (47 Conn. 347), 363. 
 Rowland v. McCown (30 Oreg. 538), 
 
 425. 
 Rowles V. American Mut L. Ins. Co, 
 
 (27 N. Y. 283), 587. 
 Roy V. Targee (7 Wend. 359), 719. 
 Royal V. Chandler ^79 Me. 365), 456. 
 Royes v. Arnold (81 Hun, 476), 332. 
 Royse v. State Nat. Bank (50 Neb. 16), 
 
 644. 
 Rubber Co. v. Eothery (107 N. Y. 310), 
 
 133. 
 Ruck V. Ruck (1896, p. 153), 110. 
 Euckman v. Cowell (1 N. Y. 505), 47. 
 Rudd V. Robinson (136 N. Y. 113, 36 
 
 N. Y. State Rep. 500), 480. 
 Rudd V. Rounds (64 Vt. 432), 13. 
 Rudy V, Com. (128 Pa. St 500), 361. 
 Rugby Charity v. Merryweather (11 
 
 East, 376, n.), 650. 
 Ruggles V. Lawson (13 Johns. 385), 
 
 637. 
 Ruggles V. Swanwick (6 Minn. 536), 
 
 337. 
 Rullman v. Barr (54 Kan. 643), 248. 
 Ruloflf V. People (45 N. Y. 213), 73. 
 Runkle v. Burnham (153 U. S. 216), 
 
 602. 
 Rusher v. State (94 Ga. 363), 316. 
 Russ V. Wabash Western R. Co. (112 
 
 Mo. 45), 537. 
 Ru.ssell V. Andre (70 Wis. 108), 333. 
 Russell V. Barry (115 Mass. 300, 302), 
 
 263. 
 Russell V. Burton (66 Barb., N. Y., 
 
 539), 46. 
 Russell V. Davis (51 Minn. 483), 373. 
 Russell V. Erwin (41 Ala. 293), 333. 
 Russell V. Hubbard (6 Barb. 654), 404. 
 Russell V. Jackson (15 Jur. 1117), 86. 
 Russell V. Jackson (9 Hare, 392), 91. 
 Russell V. Jackson (22 Wend. 276), 436. 
 Russell V. State (53 Miss. 367), 588. 
 Ruston's Case (1 Leach Cr. Cas. 408), 
 
 259. 
 Rutherford v. Morris (77 111. 397), 588. 
 Rutherford v. Schattman (110 N. Y. 
 
 604, 38 N. Y. State Rep. 847), 514. 
 
 Rutherford v. Tracy (48 Mo. 335), 127. 
 Rutledge v. Hudson (80 Ga. 266), 518. 
 Rutledge v. Missouri Pac. R, Co. (110 
 
 Mo. 313), 586. 
 Rutter V. Henry (31 Ohio St. 131), 50. 
 Ryan v. Lains (12 Q. B. 460), 624. 
 Ryan v. Miller (153 111. 138), 472. 
 Ryan v. People (165 111. 143), 110,-211. 
 Ryan v. People (79 N. Y. 594), 80. 
 Ryan v. Porter Mfg. Co. (57 Hun, 253, 
 
 32 N. Y. State Rep. 631), 505. 
 Ryder v. Mansell (66 Me. 167), 124. 
 Ryerss v. Wheeler (23 Wend. 148, 150), 
 
 269, 393. 
 
 Sachet v. May (3 Dana, 80), 34. 
 
 Sackrider v. Saginaw Co. Sup'rs (79 
 Mich. 59), 233. 
 
 Sadler v. Olmstead (79 111. 121), 63. 
 
 Safiford r. Horn (73 Miss. 470), 697. 
 
 Satree v. Smith (63 N. H. 663), 151. 
 
 Sage V. State (137 Ind. 15), 477. 
 
 Sager v. Dorr (31 N. Y. State Rep. 635, 
 643), 160, 178. 
 
 Salazar v. Loogwell (N. Y., 25 Pac. 
 Rep. 937), 655. 
 
 Salazar v. Taylor (18 Colo. 538), 573. 
 
 Salem Co. v. Pennington (63 Ind. 175). 
 413. 
 
 Salisbury, Marquis of, v. Great North- 
 ern R. Co. (5 Jur., N. S., 70), 654. 
 
 Salisbury v. Neorss (7 Lans., N. Y., 
 359, "55 N. Y. State Rep. 675), 114. 
 
 Salisbury v. Schuyler Steam T. B. 
 Line (23 N. Y. Weekly Dig. 185), 
 531. 
 
 Sallabe v. Gerlech (132 N. Y. 548), 156. 
 
 Salm V. State (89 Ala. 56), 709. 
 
 Salomon v. Hopkins (61 Conn. 47), 332. 
 
 Salter v. Ham (31 N. Y. 331), 59, 66, 
 406. 
 
 Saltonstall'a Case (1 Rogers' Rec. 134), 
 84. 
 
 Sapimis v. Wightman (31 Fla. 10), 183. 
 
 Sample v. Frost (10 Iowa, 366), 86. 
 
 Samuel v. People (164 111. 379), 76. 
 
 San Antonio & A. P. R Co. v. Ben- 
 nett (76 Tex. 151), 530. 
 
TABLE OF CASES. 
 
 CXXIX 
 
 References are to pages. 
 
 Sandberg v. Palm (E3 Minn. 253), 309. 
 Sanders v. Gallagher (53 Minn. 432), 
 
 691. 
 Sanders v. Reister (1 Dak. 151), 500. 
 Sanderson v. Caldwell (45 N. Y. 398), 
 
 48. 
 Sanderson v. Coleman (4 M. & Q. 309), 
 
 130.. 
 Sandilands, Re (L. R. 6 C. P. 411), 329. 
 Sands v. Potter (165 111. 397), 687. 
 Sands. V. Sparling (83 Hun, 401), 153. 
 Sanford v. Ellithorp (95 N. Y. 48), 150. 
 Sanford v. Fi-ost (9 App. Div. 55), 87. 
 Sanford v. Sanford (38 Conn. 6), 111. 
 Sanford v. Sanford (5 Lans. 486), 388. 
 Sanger v. Merritt (130 N. Y. 109, 30 
 
 N. Y. State Rep. 870), 253. 
 Sankeyv. Cook (83 Iowa, 125), 157, 
 
 167, 576. 
 Sanscom v. State (93 Wis. 373), 386. 
 Santo V. Maynard (57 Conn. 157), 69. 
 Santon v. Keller (167 III. 139), 340. 
 Saratoga County B.ink v. Leach (37 
 
 Hun, 336), 155, 178. 
 Sargeant v. Fuller (132 Pa. St. 127), 
 
 601. 
 Sargeant v. Hampden (38 Me. 581), 86. 
 Sargent v. Evanston (154 111. 268), 337. 
 Sartell V. Scott (11 New Bruns. 166), 
 
 301. 
 Sassur v. Farmers' Bank (4 Md. 409), 
 
 185. 
 Sauerbier v. Union Cent. L. Ins. Co. 
 
 (39 III. App. 630), 375. 
 Saulet V. Shepherd (4 Wall. 503), 654. 
 Saunders v. People (38 Mich. 218), 146. 
 Saunders v. State (30 Am. Rep. 130), 
 
 146. 
 Saunderson v. Jackson (2 R & P. 238), 
 
 227. 
 Sauter v. Scrutchfield (28 Mo. App. 
 
 150), 645. 
 Savannah v. Dickey (33 Mo. App. 522), 
 
 194. 
 Savannah, F. & W. R. Co. v. Harris 
 
 (43 Am. & Eng. R Cas. 1457), 360. 
 Savannah, F. & W. R Co. v. Holland 
 
 (82 Ga. 257), 485. 
 Saveland v. Green (40 Wis. 431), 199. 
 Savercool v. Wilsey (5 App. Div. 562), 
 153, 163. J 
 
 Saville v. ^tna F. Ins. Co. (8 Mont. 
 
 419), 67. 
 Sawyer v. Boyle (21 Tex. 28), 371. 
 Sawyer v. Brandy (113 N. C. 42), 159. 
 Sax V. Davis (81 Iowa. 693), 496, 563. 
 Sayer v. Great Falls Water Co. (l.?. 
 
 Mont. 1), 6. 
 Sayward v. Dexter, H. & Co. (73 Fed. 
 
 Rep. 758), 306. 
 Sayward v. Stevens (8 Gray, 97), 330. 
 Scagle V. C, M. & St. P. R Co. (83 
 
 Iowa, 880), 583. 
 Scaif V. Collin County (80 Tex. 514), 
 
 553, 588. 
 Scammon v. Soammon (83 N. H. 52), 
 
 212. 
 Scanlan v. Wright (13 Pick. 528), 226. 
 Scanlon v. Hodges (52 Fed. Rep. 354), 
 
 246. 
 Scarborough v. Alcorn (74 Tex. 358), 
 
 308. 
 Soarbough v. Blackman (108 Ala. 656), 
 
 167. 
 Schaeffer v. Philadelphia & R R Co. 
 
 (168 Pa. St. 209), .547, 611. 
 Schaeffer v. Wunderle (154 111. 577), 
 
 237. 
 Schaffner v. Renter (37 Barb. 44), 106, 
 
 142. 
 Schaller v. State (14 Mo. 502), 23. 
 Schaser v. State (36 Wis. 439), 499. 
 Schell V. Plumb (55 N. Y. 593), 34. 
 Schermerhorn v. Schermerhorn (1 
 
 Wend. 119), 220. 
 Schermerhorn v. Tyler (11 Hun, 549), 
 
 537. 
 Schermerhorn v. Van Allen (18 Barb. 
 
 29), 55. 
 Scheufler v. Grand Lodge A. O. U. W. 
 
 (Mmn., 30 Ins. L. J. 341), 360. 
 Scheufler v. Grand Lodge A. O. U. W. 
 
 (45 Minn. 256), 378. 
 Schieth's Estate, Re (179 Pa. St. 308), 
 
 365. 
 Schiller v. Stevens (100 Mass. 518), 293. 
 Schlaer v. Winpenny (75 Pa. St. 801, 
 
 325), 34. 
 Schlencker v. State (9 Brown, Neb., 
 
 241, 350), 572, 587, 667. 
 Sclilereth v. Missouri P. R. Co. (115 
 
 Mo. 87), 547. 
 
cxxx 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Schlessinger v. Springfield F. & M. 
 
 Ins. Co. (58 N. Y. Supr. Ct. 173, 31 
 
 N. Y. State Eep. 169), 683. 
 Schley v. Jones (131 Pa. St 63), 614. 
 Schmetz v. Schreeve(l Am. Rep. 439), 
 
 409. 
 Schmick v. Noel (73 Tex. 1), 557. 
 Schmidt V. Keehn (136 N. Y. 533), 633. 
 Schmitz V. Hufif (83 Tex. 97), 518. 
 Schmohl V. Fiddick (34 111. App. 190), 
 
 369. 
 Schneider y. Norris (3 M. & S. 386), 
 
 337. 
 Schneider v. Second Ave. R. Co. (183 
 
 N. Y. 583, 44 N. Y. State Eep. 680), 
 
 585, 730. 
 Schneider, Ee(21 Wash. L. Eep., D. C, 
 
 333). 55.5. 
 Schney v. Schaeflfer (130 Pa. St 16), 
 
 633. 
 Schofield V. Jones (85 Ga. 816, 43*Alb. 
 
 L. J. 418), 371, 333. 
 School District v. Williams (48 Conn. 
 
 504), 416. 
 Schreiber v. Sohreiber (53 N. Y. State 
 
 Eep. 436), 33. 
 Sohreyer v. Scott (184 U. S. 405), 630. 
 Schroeder v. Frey (37 N. Y. State 
 
 Eep. 945), 369. 
 Sohroeder v. Frey (ISl N. Y. 563), 374. 
 Sohubkagel v. Dierstein (131 Pa. St 
 
 46), 93. 
 Schulenberg v. Harriman (31 Wall. 
 
 44), 46. 
 Schuler v. Third Ave. R Co. (48 N. Y. 
 
 State Rep. 663), 501. 
 Schuler v. Third Ave. R Co. (44 N. Y. 
 
 State Eep. 774), 567. 
 Schultz V. Third Ave. E. Co. (89 N. Y. 
 
 243), 37. 
 Schunior v. Russell (83 Tex. 83), 446. 
 Schurr v. New York & B. S. J. Co. (45 
 
 N. Y. State Eep. 645), 379. 
 Schutz V. Jordan (141 U. S. 313), 645. 
 Schutz V. Morrette (146 N. Y. 137), 40. 
 Schuylkill Elver & S. R Co. v. Stoker 
 
 (128 Pa. St 338), 683. 
 Schwab V. Ginkinger (181 Pa. St 8), 
 
 300. 
 Schwander v. Birge (..3 Hun, 68, 10 
 
 N. Y. State Rep. 803), 524, 530, 58o. 
 
 Schwartz v. Hersker (140 Pa St 550), 
 
 300. 
 Schwartz v. Wood (67 Hun, 648, 51 
 
 N. Y. State Eep. 4), 587. 
 Schwersenskl v. Viaeberg (19 Can. 
 
 Sup. Ct 343), 334. 
 Sell winger v. Eaymond (105 N. Y. 
 
 648), 536. 
 Scofield V. McDowell (47 Iowa, 139), 
 
 62. 
 Scofield V. Spaulding (54 Hun, 533, 28 
 
 N. Y. State Eep. 108), 507, 509. 
 Scoones v. Morrell (1 Beav. 351), 651 
 Scot V. Chope (33 Neb. 41), 440. 
 Scott V. Congdon (106 Md. 368), 56. 
 Scott V. Hartley (136 Ind. 339), 283, 
 
 288. 
 Scott V. Kittaining Coal Co. (89 Pa. 
 
 St 231), 45. 
 Scott V. Lilienthal (9 Bosw. 224), 54 
 Scott V. .McCann (76 Md. 47), 704. 
 Scott V. New Orleans (41 U. S. App. 
 
 498), 15. 
 Scott V. New Orleans (75 Fed. Rep. 
 
 373), 261. 
 Scott V. Eatliffe (5 Pet 81), 427. 
 Scott V. Sampson (8 Q. B. D. 491), 30. 
 Scott V. Scott (13 N. Y. State Eep. 
 
 303), 159. 
 Scott V. State (31 Tex. Cr. App. 405), 30. 
 Scott V. Wood (81 Cal. 398), 340, 642, 
 
 625. 
 Scott V. Yard (46 N. J. Eq. 79), 319. 
 Scroggiu V. Dalrymple (7 Jones, N. C, 
 
 L. 40), 416. 
 Sorogin v. Wood (87 Iowa, 97), 335. 
 Scullin v. Harper (46 U. S. App. 673, 
 
 78 Fed. Rep. 460), 559, 695. 
 Scully v. Book (3 Wash. 182), 41. 
 Seabury v. BoUes (53 N. J. L. 418), 
 
 407. 
 Seaman v. Koehler (133 N. Y. 646), 
 
 183, 188. 
 Seaman v. Koehler (33 N. Y. State 
 
 Eep. 739), 188. 
 Seaman v. Lew (5 Barb. 337), 57. 
 Sears v. Kings County Elev. R Co. 
 
 (153 Mass. 151),' 398. 
 Sears v. Kings County Elev. R Co. 
 
 (156 Mass. 440), 635. 
 Se.nra v. Hayt (37 Conn. 406), 485. 
 
TABLE or CASES. 
 
 CXXXl 
 
 References are to pages. 
 
 Sears v. Seattle Con. Street Co. (6 
 
 Wash. 237), 547. 
 Seattle Land Co. v. Day (3 Wash. 451), 
 
 356. 
 Seattle & M. E, Co. v. Gilchrist. (4 
 
 Wash. 509), 677, 690. 
 Seavey v. Dearborn (19 N. H. 351, 
 
 356), 31. 
 Sebrill v. Barrows (36 W. Va. 313), 
 
 538. 
 Second Nat. Bank v. Wenzell (131 
 
 Pa. St. 143), 573. 
 Secor V. Pestana (37 111. 525), 199. 
 Security Ins. Co. v. Fay (33 Mich. 256), 
 
 133. 
 Seeley v. Engell (18 N. Y. 542), 132. 
 Seese v. Northern Pacific E. Co. (39 
 
 Fed. Rep. 487), 548. 
 Seibert t. People (143 111. 571), 669. 
 Seibold v. Rogers (110 Ala. 438), 573. 
 Seip's Estate, Re (163 Pa. St. 423], 89. 
 Seitz V. Brewers' Refrigerating & 
 
 Mach. Co. (141 U. S 510), 309. 
 Seitz V. Seitz (170 Pa. St 71), 105. 
 Selden v. State (75 Wis. 371), 87. 
 Seligman v. Ten Eyck (60 Mich. 267), 
 
 164. 
 Sellen v. Norman (4 C. & P. 80), 373. 
 Sellers v. Carpenters (33 Me. 485), 246. 
 Selma, etc. R. Co. v. Keith (63 Ga. 
 
 178), 688. 
 Selma, R & D. R. Co. v. United States 
 
 (189 U. S. 560), 341. 
 Selover v. Coe (63 N. Y. 448), 60, 387, 
 Semple v. Hogar (27 Cal. 163), 188. 
 Sennv. Southern R. Co. (108 Mo. 142), 
 
 539. 
 Sentence v. Kelley (59 Hun, 513), 565. 
 Serat v. Smith (15 N. Y. Supp. 330), 
 
 300. 
 Serfass v. Driesbach (141 Pa. St. 142), 
 
 342. 
 Sesmore v. United States (93 U. S. 605), 
 
 396. 
 Seventh Day B. M. F. v. Saunders (84 
 
 Wis. 211), 301. 
 Severance v. Carr (43 N. H. 65), 698. 
 Severn v. National State Bank of Troy 
 
 (18 Hun, 238), 149. 
 Sewell V. Evans (4 Q. B. 636), 239. 
 
 I ! 
 
 Seybolt v. N. Y., L. E. & W. E. Co. (95 
 
 N. Y. 562), 349. 
 Seymour v. Cowing (1 Keyes, 533), 330. 
 Seymour v. Farrell (51 Mo. 95), 311. 
 Seymour v. Mackey (15 Ohio St. 515), 
 
 311. 
 Shaak v. Meilly (106 Pa. St 161), 156, 
 
 170. 
 Shackleford v. Hooker (54 Miss. 716), 
 
 315, 816. 
 Shad V. Livingston (31 Fla. 89), 333. 
 Shadden v. Hambree(17 0reg. 14), 394- 
 Shafer v. Lacock (168 Pa. St 497), 491. 
 Shailer v. Bumstead (99 Mass. 113), 500. 
 Shain v. Forbes ^82 Cal. 577), 149, 151, 
 
 645. 
 Shall V. Miller (5 Whart 156), 477. 
 Shailer v. Brand (6 Biun. 435, 439), 447- 
 Shane v. Lowry (48 Ind. 205), 313. 
 Shanfetter v. Baltimore (80 Md. 483), 
 
 182. 
 Shannon v. Minney (130 Pa. St 280), 
 
 507. 
 Sharon v. Sharon (79 Cal. 633), 75, 85, 
 
 108. 
 Sharp V. Freeman (45 N. Y. 803), 387. 
 Sharp V. Hicks (94 Ga. 624), 10. 
 Shattuck V. Rogers (59 Kan. 266), 265. 
 Shaver v. Shell (24 Ark. 123), 111. 
 Shaw V. Beek (8 Ex. 892), 339. 
 Shaw V. Jacobs (31 L. R. A. 440), 287. 
 Shaw V. Railroad Co. (101 U. S. 564), 
 
 363. 
 Shaw V. Smith (18 Q. B. D. 193), 348. 
 Shaw V. Smithes (167 III. 269), 633. 
 Shaw V. Starr (75 Tex. 411), 513. 
 Shaw V. Susquehanna Boom Co. (135 
 
 Pa. St 334), 418. 
 Shea V. Glendale Elastic Fabrics Ca 
 
 (163 Mass. 463), 17. 
 Shea V. Murphy (164 111. 614), 506. 
 Sheahan v. National Steamship Co. 
 
 (66 Hun, 48, 49 N. Y. State Rep. 
 
 484), 715. 
 Shear v. Van Dyke (10 Hun, 538), 473. 
 Sheddon v. Attorney-General (30 L. J., 
 
 P. M. & A., 317, 385), 431, 433, 485. 
 Sheehan v. Hennesey (65 N. H. 101), 
 
 165, 173. 
 Sheehan v. Kearney (Miss., 35 L. R A, 
 
 103), 461. 
 
CXXXll 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Sheil V. Muir (22 N. Y. State Eep. 
 
 829), 179. 
 Sheil V. Stark (14 Ga. 429), 326. 
 Shelby v. Clagett (46 Ohio St 549), 
 
 566, 587. 
 Sheldon v. Benham (4 Hill, 139), 579. 
 Sheldou V. Clark (1 Johns. 513), 361. 
 Sheldon v. Ferris (45 Barb. 128), 628, 
 
 631. 
 Sheldon v. Kibbe (3 Conn. 314), 113. 
 Sheldon v. Payne (7 N. Y. 403), 405. 
 Sheldon v. Sheldon (133 N. Y. 1, 83 
 
 N. Y. State Rep. 754), 93. 
 Sheldon v. Sheldon (84 Hun, 422), 156, 
 
 205. 
 Sheldon v. Wright (5 N. Y. 497), 112. 
 Sheldon v. Wright (7 Barb. 39), 600, 
 
 603. 
 Sheldon's Will, Re (141 N. Y. 559, 40 
 
 N. Y. State Rep. 369), 600. 
 Shell V. Boyd (32 S. C. 359), 164. 
 Shelly V. Austin (74 Tex. 608), 530. 
 Shelton v. State (34 Tex. 663), 540. 
 Shenandoah Cotton Co. v. Lefferts (59 
 
 Hun, 630, 36 N. Y. State Rep. 63), 
 
 303. 
 Shenandoah M. & M. Co. v. Morgan 
 
 (106 Cal. 409), 40, 52. 
 Sheperd v. Hill (151 Mass, 340), 285. 
 Shephard v. Payne (16 C. B., N. S., 
 
 133, 135), 592. 
 Sheppard v. Giddings (33 Conn. 383), 
 
 243. 
 Sheridan v. Houston (16 Hun, 638), 88. 
 Sheridan v. Jackson (73 N. Y. 170), 70. 
 Sherman v. Elder (34 N. Y. 381), 51, 
 
 66. 
 Sherman v. Hoagland (54 Ind. 578), 
 
 358. 
 Sherman v. Oneonta"(59 Hun, 394, 36 
 
 N. Y. State Eep. 587), 498. 
 Sherman v. Robertson (88 Hun, 40), 
 
 305. 
 Sherman Center Town v. Leonard (46 
 
 Kan. 354), 681. 
 Sherman County Bank v. M!cDonald 
 
 (57 Kan. 358), 518. 
 Shervey v. Evansville & T. H. Co. (131 
 
 Ind. 437), 548, 551. 
 Sherwood v. Houston (41 Miss. 59), 
 
 413. 
 
 Shevlin v. Whelen (41 Wis. 88), 121. 
 Shield V. Cunningham (1 Blackf. 86), 
 
 34. 
 Shields v. Boucher (1 De G. & Sm. 40), 
 
 439. 
 Shields v. Smith (104 N. C. 57), 153, 
 
 170. 
 Shifler v. Adams (13 Colo. 573), 377. 
 Shifftell's Case (14 Gratt. 653), 216. 
 Shiner v. Abbey (77 Tex. 1), 498. 
 Shinker v. Haagsma (97 Mo. 308), 371. 
 Shirley v. Bennett (6 Lans., N. Y., 513), 
 
 153, 157. 
 Shoemaker v. Benedict (11 N. Y. 176), 
 
 406. 
 Shoemaker v. Kellogg (II Pa. St 310), 
 
 463. 
 Shorey v. Hussey (33 Me. 579), 363. 
 Short V. Kingsmill (7 Q. B., U. C, 850), 
 
 564. 
 Shorten v. Judd (56 Kan. 43), 256. 
 Shorter v. Cunningham (87 Cal. 209), 
 
 247. 
 Shove V. Wiley (18 Pick. 558), 444. 
 Show V. McGregor (105 Mass. 96), 409. 
 Shown V. McMackin (9 B. J. Lea, 601, 
 
 608), 638. 
 Shrewsbury Peerage (17 H. L 1, 23, 
 
 26), 430, 437. 
 Shroyer v. Richmond (16 Ohio St 455), 
 
 116. 
 Shughart v. Moore (78 Pa. St 469, 
 
 472), 363. 
 Shulters v. Johnson (38 Barb. 80), 391. 
 Shultz V. Hoagland (85 N. Y. 464), 355. 
 Shuman v. Shuman (37 Pa. St 90), 432. 
 Shurtleff v. Parker (130 Mass. 293), 34. 
 ShurtlefiE v. Willard (19 Pick., Mass,, 
 
 203), 189. 
 Shuten v. Walters (118 N. C. 495), 167. 
 Shuttle V. Thompson (15 Wall. 151), 
 
 416. 
 Shuttleworth v. Winter (55 N. Y. 639), 
 
 401. 
 Sibley v. Waffle (16 N. Y. 180), 86. 
 Sickles V. Mather (30 Wend. 72), 466. 
 Sickles V. New Jersey Ice Co. (80 Hun, 
 
 213, 61 N. Y. State Rep. 761), 350. 
 Siddon v. Hodnett (23 Fla. 443), 234. 
 Sidelinger v. Bucklin (64 Me. 371), 25. 
 Sidenberg v. Ely (90 N. Y. 357), 48. 
 
TABLE or CASES. 
 
 CXXXIU 
 
 References are to pages. 
 
 Sidney School Furniture Co. v. War- 
 saw Tp. School District (130 Pa. 
 
 St. 76). 335. 
 Sientes v. Odier (17 La. Ann. 153), 323. 
 Sikes V. Paine (10 Ired., N. C, L. 280), 
 
 556. 
 Silbey v. Aldrich (33 N. H. 553), 607. 
 Sill V. Reese (47 Cal. 394), 572. 
 Sillcocks M. N. Y. El. R. Co. (46 N. Y. 
 
 State Rep. 671), 681. 
 Silliman v. Tuttle (45 Barb. 171), 321. 
 Silver v. Missouri P. R. Co. (99 Mo. 
 
 33), 341. 
 Silvers v. Potter (N. J. Ch., 48 N. J. 
 
 Eq. 539), 300, 333. 
 Simls V. N. Y., L. E. & W. R. Co. (48 
 
 N. Y. State Rep. 687), 306. 
 Simmons v. Havens (101 N. Y. 427), 
 
 162, 179. 
 Simmons v. Lyons (55 N. Y. 671), 50. 
 Simmons v. State (61 Miss. 243), 217, 
 
 318. 
 Simms v. Express Co. (38 Ga. 139), 
 
 194. 
 Simonds v. Partridge (154 Mass. 500), 
 
 161,176. 
 Simons v. Burnham (103 Mich. 189), 
 
 695. 
 Simons v. Richard (43 La. Ann. 843). 
 
 634. 
 Simons v. State (30 Ind. 90), 136. 
 Simons v. Ypsilanti Paper Co. (17 
 
 Mich. 185), 341. 
 Simons' Case (6 C. & P. 333), 105. 
 Simpson v. Dall (3 Wall. 460), 246. 
 Simpson v. Die (131 Mass. 179), 201. 
 Simpson v. Norton (45 Me. 281), 335, 
 
 346. 
 Simpson v. Pearson (31 Ind. 1), 136. 
 Simpson v. Simpson (107 N. C. 552), 
 
 155, 176. 
 Sims V. Sims (75 N. Y. 466), 140. 
 Simser v. Cowan (56 Barb. 395), 51. 
 Sinclair v. Stephenson (1 C. & P. 583), 
 
 699. 
 Sindal v. Jones (57 Ga. 85), 124. 
 Singleton v. Phoenix Ins. Co. (132 
 
 N. Y. 298, 44 N. Y. State Rep. 414), 
 
 609. 
 Sinking v. Floyd (114 Ind. 291), 58. 
 
 Sioux Valley State Bank v. Kellogg 
 
 (81 Iowa, 134), 496. 
 Sire V. Rumbold (39 N. Y. State Rep. 
 
 85), 274, 396, 389. 
 Sirk v. Ela (163 Mass. 894), 2G5. 
 Sistare v. Olcott (15 N. Y. State Rep. 
 
 348), 534. 
 Siter v. Jewett (33 Cal. 92), 64. 
 Sittei-ly V. Gregg (90 N. Y. 686), 37. 
 Sixth Ave. R. Co. v. Metropolitan El. 
 
 Co. (138 N. Y. 548, 53 N. Y. State 
 
 Rep. 181), 678. 
 Skeels v. Starrett (57 Mich. 350), 308, 
 
 680. 
 Slane Peerage Case (5 CI. & F. 43), 
 
 335. 
 Slaney v. Wade (7 Sim. 595), 437. 
 Slatterrie v. Pooley (6 M. & W. 664), 
 
 200. 
 Sleght V. Hartshorne (2 Johns. 561), 
 
 293. 
 Slicer v. Bank of Pittsburgh (16 How., 
 
 U. S., 511), 603. 
 Slim, Re (L. R. 15 P. D. 153). 333. 
 Slingerland v. Norton (58 Hun, 575, 35 
 
 N. Y. State Rep. 426), 138. 
 Slingerland v. Slingerland (46 Minn. 
 
 100), 475. 
 Sloan V. New York Cent R Co. (45 
 
 N. Y. 125), 34, 97, 588. 
 Sloau V. Somers (20 N. J. L. 66), 476, 
 
 477. 
 Sloan V. Union Banking Co. (67 Pa. 
 
 St 479), 313. 
 Sloane v. Southern CaL R. Co. (Ill 
 
 Cal. 330, 33 L. R. A. 193), 191. 
 Slocovich V. Orient Mut. Ins. Co. (108 
 
 N. Y. 56), 572. 
 Slocum v. Warren (10 R. L 134), 378. 
 Sloniger v. Sloniger (161 111. 270), 598. 
 Small V. Williams (87 Ga. 681), 496. 
 Smalley v. Appleton (70 Wis. 340), 
 
 .588. 
 Smalley v. Appleton (75 Wis. 18), 539. 
 Smart v. Rayuer (6 C. & P. 731), 339. 
 Smedbury v. Whittlesay (3 Sandf. Ch. 
 
 320), 53. 
 Smiley v. Fries (104 111. 416), 619. 
 Smith V. Abair (87 Mich. 63), 400, 401. 
 Smith v. Arthur (110 N. C. 400), 300. 
 
CXXXIV 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Smith V. Bartram (11 Ohio St. 6DU), 
 
 564. 
 Smith V. Battens (1 Moo. & Rob. 341), 
 
 459. 
 Smith V. Bentz (45 Alb. L. J. 213), 465. 
 Smith V. Bentz (131 N. Y. 169, 43 N. Y. 
 
 State Rep. 879), 464, 465, 467. 
 Smith V. Blakey (L. R 3 Q. B. 326), 
 
 489. 
 Smith V. Boyer (29 Neb. 76), 518. 
 Smith V. Carter (35 Wis. 233), 313. 
 Smith V. Castle (1 Gray, 108), 707. 
 Smith V. Coffin (18 Me. 157), 134. 
 Smith V. Coleman (77 Wis. 343), 296. 
 Smith V. Collins (94 Ala. 394), 11, 464. 
 Smith V. Collins (115 Mass. 388), 408, 
 
 409. 
 Smith V. Combs (49 N. J. Eq. 420), 627. 
 Smith V. Crego (54 Hun, 22, 26 N. Y. 
 
 State Rep. 64), 89, 92. 
 Smith V. Cross (90 N. Y. 549), 154, 163. 
 Smith V. Deere (48 Kan. 416), 308. 
 Smith V. Des Moines (84 Iowa, 685), 
 
 15. 
 Smith V. Dinkelspiel (91 Ala. 528), 327. 
 Smith V. Dittman (34 N. Y. State Rep. 
 
 303, 16 Daly, 437), 504. 
 Smith V. Easton (54 Md. 138, 39 Am. 
 
 Rep. 355), 354 
 Smith V. Ferris (1 Daly, 18), 127. 
 Smith V. Floyd (18 Barb. 392), 287. 
 Smith V. Floyd (18 Barb. 523), 289. 
 Smith V. Franklin Park L. Co. (168 
 
 Mass. 345), 481. 
 Smith V. Gibba (44 N. H. 335), 887, 331. 
 Smith V. Gillura (80 Tex. 120), 507, 633. 
 Smith V. Goodrich (167 111. 46), 617. 
 Smith V. Graham (34 Mich. 303), 121. 
 Smith V. Grant (39 Chicago Legal 
 
 News, 145), 361. 
 Smith V. Hathorn (25 Hun, 159), 155. 
 Smith T. Hine (179 Pa. St 203), 703. 
 Smith V. Hollister (32 Vt. 695), 48. 
 Smith V. Holyoke (112 Mass. 517), 353. 
 Smith V. Home Ins. Co. (47 Hun, 30), 
 
 68. 
 Smith v. Hutchins (80 Mo. 380), 698. 
 Smith T. Kemp (93 Mich. 357), 301. 
 Smith V. Kennedy (18 Hun, 9), 401. 
 Smith v; Kimball (63 N. H. 606), 374, 
 39], 893. 
 
 Smith T. Knowlton (11 N. H. 191), 
 
 396, 628. 
 Smith V. Levinas (8 N. Y. 473), 59. 
 Smith V. Loafman (145 Pa. St 628), 
 
 530. 
 Smith V. Lyons (3 Camp. 465), 215. 
 Smith V. Maine (25 Barb. 33), 201, 459. 
 Smith V. Martin (17 Conn. 399), 450. 
 Smith V. Maryland (18 How. 71, 74), 
 
 654. 
 Smith V. McNamara (4 Lans., N. Y., 
 
 169), 127. 
 Smith V. Miller (43 N. Y. 171), 185. 
 Smith V. Minneapolis Library Board 
 
 (25 L. R. A. 280), 684. 
 Smith V. Mongoga (3 N. M. 39), 603. 
 Smith V. Moody (94 Ga. 534), 842. 
 Smith V. Mote (70 Hun, 593, 53 N. Y. 
 
 State Rep. 346), 481. 
 Smith v: National Ben. Soo. (133 N. Y. 
 
 85), 15, 355, 513, 519. 
 Smith V. National Ben. Soc. (33 N. Y. 
 
 State Rep. 67), 855, 519. 
 Smith V. Nelson (63 N. Y. 386), 111. 
 Smith V. N. Y. C. & H. R. R Co. (118 
 
 N. Y. 645, 30 N. Y. State Rep. 96), 
 
 607. 
 Smith V. O'Brien (34 N. Y. State Rep. 
 
 708), 106. 
 Smith V. Ogilvie (137 N. Y. 143, 38 
 
 N. Y. State Rep. 150), 620. 
 Smith V. Owens (21 Cal. 11), 49. 
 Smith V. Palmer (6 Cush. 518), 201. 
 Smith V. Penny (44 Cal. 161), 121. 
 Smith V. Porter (10 Gray, 68), -619. 
 Smith V. Putnam (63 N. H. 369), 485, 
 
 518. 
 Smith V. Rentz (131 N. Y. 169, 42 N. Y. 
 
 State Rep. 879), 250. 
 Smith V. Rishel (164 Pa. St 181), 148, 
 
 169. 
 Smith V. Roberts (43 Minn. 342), 320. 
 Smith V. Royalton (53 Vt 604), 34. 
 Smith V. Ryan (66 N. Y. 852). 346. 
 Smith V. Sargent (2 Hun, 107), 168. 
 Smith V. Satterlee (130 N. Y. 677, 41 
 
 N. Y. State Rep. 711), 129. 
 Smith V. Shank (18 Barb. 344), 203. 
 Smith V. Shell (82 Mb. 215), 129. 
 Smith V. Shippey (183 Pa. St 34), 616. 
 Smith'v. Smith (49 Ala. 156), 628, 639. 
 
TABLE OF CASES. 
 
 CXXXV 
 
 References are to pages. 
 
 Smith V. Smitli (13 App. Div. 207), 466. 
 Smith V. Smith (1 Edw. Cli. 191), 393. 
 Smith V. Smith (117 Mass. 72), 380. 
 Smith V. Smith (157 Mass. 389), 554. 
 Smith V. Smith (43 N. H. 536), 235. 
 Smith V. Smith (53 N. J. L. 207), 150, 
 
 173. 
 Smith V. Smith (81 Tex. 45), 333. 
 Smith V. State (37 Ala., N. 8., 473), 147. 
 Smith V. State (88 Ga. 637), 316. 
 Smith (f. Sun P. & P. Ass'n (55 Fed. 
 
 Rep. 240), 677. 
 Smith V. Traders' Nat Bank (83 Tex. 
 
 368), 848. 
 Smith V. Taylor (83 CaL 533), 367. 
 Smith V. Tebbitt (L. E. 1 P. & D. 354), 
 
 430. 
 Smith V. Tosini (S. D., 48 N. W. Rep. 
 
 399), 601. 
 Smith V. Tucker (3 E. D. Smith, 193), 
 
 638. 
 Smith V. United States (5 Pet 392, 
 
 399), 342. 
 Smith V. United States (161 U. S. 85), 
 
 38. 
 Smith V. Vincent (15 Conn. 1), 214. 
 Smith V. West et al. (64 Ala. 34), 235. 
 Smith V. Winter (9 Mees. & W. 313), 
 
 46. 
 Smith V. Wood (133 Ind. 321), 265. 
 Smith V. Wright (56 Ala. 417), 889. 
 Smith. V. Young (1 Camp. 439), 387. 
 Smith V. Young (36 Mo. App. 576), 683. 
 Smith et aL v. Clews (114 N. Y. 190, 
 
 33 N. Y. State Rep. 166), 877. 
 Smith's Will, Re (61 Hun, 101, 39 N. 
 
 Y. State Rep. 698), 93. 
 Smyth V. Scott (106 Ind. 245), 53. 
 Sneathen v. Sneathen (104 Mo. 301), 
 
 646. 
 Snelling's Will, Re (136 N. Y. 815, 49 
 
 Y. State Rep. 695), 537. 
 Snodgrass v. CaldweU (90 Ala. 319), 
 
 413. 
 Snodgrass v. Com. (89 Va. 629), 609. 
 Snow V. Alley (151 Mass. 14), 309. 
 Snow V. Johnson (1 Minn. 48), 68. 
 Snow V. Peacock (3 C. & P. 315), 363. 
 Snowman v. Harford (63 Me. 434), 114. 
 Snyder v. Fielder (139 U. S. 479], 173. 
 
 Snyder v. Nations (5 Blackf. 295), 132. 
 Snyder v. Oatman (16 III. 865), 313. 
 Snyder v. Sherman (88 N. Y. 656), 150. 
 Snyder v. Snyder (6 Binn. 483), 696. 
 Snyder v. Witner (82 Iowa, 653), 583. 
 Soaps V. Eschberg (42 111. App. 375), 
 
 200. 
 Soderman v. Kemp (145 N. Y. 437), 
 
 350. 
 Solenberger v. Gilbert (14 Va. L. J. 
 
 406), 333. 
 Solo man v. Grosbeak (65 Mich. 540), 
 
 67. 
 Solomon R. Co. v. Jones (34 Kan. 443), 
 
 475. 
 Somer v. Wright (114 Mass. 171), 463. 
 Sommer v. Oppenheim (78 N. Y. State 
 
 Rep. 396), 87. 
 Sooper V. State (90 Ala. 641), 7ia 
 Sorenson v. Dundas (43 Wis. 042), 488. 
 Souhegan Nat Bank v. Boardman 
 
 (46 Minn. 293), 271. 
 Sourwine v. Claypool (138 Pa. St 126), 
 
 374. 
 Southard v. Rexford (6 Cow. 254), 76. 
 South African Territor^ies v. Walling- 
 
 ton (C. A. 1897, 1 Q. B. 693), 687. 
 Southerland v. Wilmington & W. R 
 
 Co. (106 N. C. 100), 496. 
 Southern Kan. R. Co. v. Robbins (43 
 
 Kan. 145), 548. 
 Southern K. F. L. & T. Co. v. Garrity 
 
 (57 Kan. 805), 303. 
 Southern K. R Co. v. Pavey (48 Kan. 
 
 452), 482. 
 Southern P. R Co. v. Johnson (44 
 
 U. S. App. 1), 673. 
 Southern R Co. v. Bonknight (30 L. 
 
 R. A. 823), 117. 
 South Ex. Co. V. Thornton (41 Miss. 
 
 816), 573. 
 South Missouri Land Co. v. Jeffries 
 
 (40 Mo. App. 360), 188. 
 Southwick V. First Nat Bank of 
 
 Memphis (84 N. Y. 430), 40. 
 Southwick V. Southwick (49 N. Y. 
 
 510), 104. 
 Sparks t. Brown (46 Mo. App. 539), 
 
 879, 334, 513. 
 Sparks v. Rowles (17 Ala. 211), 336. 
 
CXXXVl 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Spaulding v. Albin (63 Vt. 148), 519. 
 Spaulding v. Arnold (125 N. Y. 194, 
 
 34 N. Y. State Rep. 980), 624 
 Spaulding v. Hallenbeck (35 N. Y. 
 
 804, 207), 201. 
 Spaulding v. Vandercook (2 Wend. 
 
 482), 826. 
 Spaulding v. Vincent (24 Vt 501), 234, 
 
 238. 
 Spear v. Richardson (37 N. H. 23, 84), 
 
 526, 571, 697. 
 Spaunhorst v. Link (46 Mo. 497), 34. 
 Spears v. Burton (31 Miss. 547), 437, 
 
 628. 
 Spears v. Lawrence (10 Wash. 368), 
 
 248. 
 Specht V. Spangenberg (70 Iowa, 488), 
 
 69. 
 Spect V. Allen (12 Oreg. 117), 69. 
 Speer v. Coate (8 McCord, 227), 416. 
 Speiden v. State (3 Tex. App. 156), 146. 
 Speigel V. Hayes (118 N. Y. 660), 21, 77. 
 Spellman v. Lincoln Rapid Transit 
 
 Co. (85 Neb. 86, 20 L. R. A. 316), 
 
 351. 
 Spellman v. Richmond & D. R Co. 
 
 (35 S. C. 475), 586. 
 Spence v. Brown (17 N. Y. Weekly 
 
 Dig. 518), 539. 
 Spencely v. De Willott (7 East, 108), 31. 
 Spencer v. Citizens' Mut Life Ins. Co. 
 
 (142 N. Y. 505, 60 N. Y. State Rep. 
 
 96), 862. 
 Spencer v. Citizens' Mut. Life Ins. Co. 
 
 (52 N. Y. State Rep. 442), 128. 
 Spencer v. Dearth (43 Vt. 98), 115. 
 Spencer v. Kilmer (151 N. Y. 390), 682. 
 Spencer v. McGonagle (107 Ind. 410), 
 
 58. 
 Spencer v. N. Y. & N. E. R Co. (62 
 
 Conn. 242), 508. 
 Spencer v. Reese (165 Pa. St. 158), 600. 
 Spencer v. Roper (13 Ired. L. 333), 628. 
 Spencer v. State (20 Ala. 24), 205. 
 Sperry v. Wesco (26 Oreg. 488), 248, 
 
 441. 
 Spice T. Bacon (2 Q. B. D. 463, 0. A.), 
 
 607. 
 Spicer v. Spicer (54 N. Y. Super. Ct. 
 
 280), 164. 
 
 Spicer v. State (69 Ala. 159), 74. 
 Spiers v. Parker (1 Term Rep. 141), 44. 
 Spiers t. Willison (4 Cranch, 398), 264. 
 Split Rock Cable Road Co., Re (128 N. 
 
 Y. 408, 34 N. Y. State Rep. 169), 
 
 376. 
 Spooner v. Holmes (102 Mass. 503), 363. 
 Spooner v. Keeler (51 N. Y. 527), 48. 
 Spores V. Bowgs (6 Oreg. 122), 63. 
 Spottiswood V. Weir (80 Gal. 448), 574. 
 Spotts V. Wabash R. Co. (Ill Mo. 380), 
 
 352. 
 Spotts' Estate, Re (156 Pa. St. 281), 169 
 Sprague v. Brown (40 Wis. 612), 403. 
 Sprague t. Dodge (95 Am. Dec. 525), 
 
 355. 
 Sprague v. Graham (29 Me. 160), 364. 
 Sprague v. Hosmcr (82 N. Y. 466), 330. 
 Sprague v. Smith (28 Hun, 49), 155. 
 Sprawl V. Lawrence (33 Ala. l'06), 189. 
 Spreeves v. Allen (79 111. 553), 363. 
 Sprenger v. Tacoma Traction Co. (15 
 
 Wash. 660), 697. 
 Spriggs V. Moale (28 Md. 497), 396, 398. 
 Spring V. South Bound R Co. (46 S. C. 
 
 104), 711. 
 Spring City Gaslight Co. v. Pennsyl- 
 vania S. V. R Co. (167 Pa. St 6), 
 
 684. 
 Springer v. Chicago (135 III. 552), 206. 
 Springer v. Kleinsorge (83 Mo. 153), 67. 
 Springfield t. Coe (166 111. 23), 534, 548. 
 Springfield Cons. R Co. v. Welch (155 
 
 111. 511), 491, 567. 
 Springfield Engine & T. Co. v. Green 
 
 (25 111. App. 106), 380. 
 Springsteen v. Sampson (32 N. Y. 706), 
 
 274. 
 Spurf V. United States (156 U. S. 51), 
 
 205. 
 Spurrier v. Front St Cable R Co. (3 
 
 Wash. 659), 545. 
 Stack V. Beach (74 Ind. 571), 313. 
 Stackhouse v. Horton (15 N. J. Eq. 
 
 202, 209), 572. 
 Staker v. Begole (34 Neb. 107), 400. 
 Stallings v. Gottschalk (77 Md. 429), 
 
 327. 
 Stallings v. Hullum (79 Tex. 431), 93. 
 Stamper v. Griffin (12 Ga. 450), 26. 
 
TABLE OF OASES. 
 
 CXXXVU 
 
 Eeferences are to pages. 
 
 Standen v. Brown (153 N. Y. 188), 273. 
 Stanford v. Lyoi?s (18 Am. Rep. 738), 
 
 393. 
 Stanglein v. State (17 Ohio St 453), 284. 
 Stanhope v. Swaflford (80 Iowa, 45), 
 
 835. 
 Stanley v. Dunn (143 Ind. 495), 701. 
 Stanley v. Stanley (112 Ind. 143), 699. 
 Stanley v. State (26 Ala. 26), 344. 
 Stanley v. White (14 East, 333), 9. 
 Stanley v. Whitney (47 Barb. 586), 16?. 
 Stanley's Appeal (63 Conn. 325), 554. 
 Stanton v. Embrey (03 U. S. 548), 540. 
 Starin v. Kelley (88 N. Y. 418), 558. 
 Starkey v. People (17 111. 17), 454. 
 Starkie's Appeal (61 Conn. 199), 520. 
 Starr v. Cragin (24 Hun, 177), 37. 
 Starrett v. Mullen (3 L. R. A. 697, 148 
 
 Mass. 570), 46. 
 State V. Able (65 Mo. 357). 474, 475. 
 State V. Adamson (43 Minn. 196), 31. 
 State V. Ah Lee (18 Oreg. 540), 413. 
 State V. Ah Chuey (14 Nev. 79), 74. 
 State V. Allen (107 N. C. 805), 80, 705. 
 State V. Alsten (94 N. C. 930), 499. 
 State V. Angelo (32 La. Ann. 407, 34. 
 State V. Ardoin (49 La, Ann. 1145), 
 
 340, 361, 657. 
 State V. Arnold (13 Ired, N. C, 184), 
 
 455. 
 State V. Asbell (57 Kan. 398), 537. 
 State V. Atherton (16 N. H. 203), 233. 
 State V. Auburn (86 Me. 276), 194. 
 State V. Bailey (1 Penn. 415), 84. 
 State V. Baker (20 Mo. 338), 103. 
 State V. Baldwin (63 Minn. 518), 469. 
 State V. Baldwin (15 Wash. 15), 453. 
 State V. Banister (35 S. C. 290), 451, 
 
 454, 455. 
 State V. Banks (10 Mo. App. Ill), 486. 
 State V. Bedard (65 Vt. 278), 503. 
 State V. Beebe (17 Minn. 341), 103. 
 State V. Belcher (13 S. C. 459), 453, 484, 
 
 501. 
 State V. Benner (64 Ma 367, 287), 31, 
 
 103, 696, 698. 
 State V. Bertrand (3 Orog. 61), 667. 
 State V. Best (108 N. C. 747), 428. 
 State V. Best (111 N. C. 638), 8. 
 State V. Betsall (11 W. Va. 703), 145. 
 
 State V. Biggerstafl(17Mont. 510), 493. 
 State V. Bittick (103 Mo. 183, 11 L. R. 
 
 A. 587), 434. 
 State V. Blackburn (80 N. C. 474), 453. 
 State V. Blake (25 Me. 350), 76. 
 State V. Blankey (3 Minn. 246), 82. 
 State V. Bradley (34 S. C. 136), 452, 
 
 568. 
 State V. Bradley (64 Vt. 466), 207, 560,. 
 
 587, 669. 
 State V. Brady (107 N. C. 822), 514. 
 State V. Brodneck (69 Conn. 212), 486, 
 
 671. 
 State V. Broughton (7 Ired., N. G, L. 
 
 96), 108. 
 State V. Brown (81 Me. 520), 346. 
 State V. Brown (28 Oreg. 147), 583. 
 State V. Brown (36 Vt. 560), 346. 
 State V. Bruce (33 La. Ann. 186), 129. 
 State V. Buckler (103 Mo. 203), 583. 
 State V. Butler (47 S C. 25), 74. , 
 State V. Byers (16 Mont. 565), 477. 
 State V. Cameron (2 Chand., Wis., 172), 
 
 455. 
 State V. Callegari (41 La. Ann. 578), 
 
 713. 
 State V. Campbell (20 Nev. 123), 505. 
 State V. Campbell (1 Rich., S. C, 124), 
 
 476. 
 State T. Carr (37 Vt. 191), 217. 
 State V. Carroll (9 Am. Rep. 409), 404. 
 State V. Carroll (38 Conn. 449), 614 
 State V. Center (35 Vt 385), 107. 
 State V. Chadotte(17 Mont 315), 135. 
 State V. Chambers (45 La. Ann. 36), 
 
 548. 
 State V. Chisenhall (106 N. C. 676), 35. 
 State V. Chyo Chiack (90 Mo. 395), 145. 
 State V. Claire (41 La. Ann. 1067), 36. 
 State V. Clark (69. Iowa, 394), 505. 
 State V. Clark (46 La. Ann. 1409), 237. 
 State T. Collins (115 N. C. 716), 583. 
 State V. Conerly (48 La. Ann. 1561), 
 
 705. 
 State V. Conway (56 Kan. 682), 475. 
 State V. Cornish (5 Harr., Del., 502), 
 
 451. 
 State V. Cousins (58 Iowa, 250), 73. 
 State V. Cox (64 Ga. 374, 37 Am. Eep, 
 
 76), 48a 
 
CXXXVIU 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 State V. Crabtree (111 Mo. 136), 454. 
 State V. Cram (67 Vt. 60), 516. 
 State V. Crawford (115 Mo. 630), 667. 
 State V. Crockett (82 N. C. 599), 204. 
 State V. Crouse (86 N. C. 617), 34. 
 State V. Crow (107 Mo. 341), 257. 
 State V. Crowley (33 La. Ann. 783), 
 
 145. 
 State V. Cummings(76Iowa, 133), 699. 
 State V. Cummings (53 N. J. L. 77), 
 
 335. 
 State V. Cushing (14 Wash. 527), 33. 
 State V. Dalton (28 Mo. 13), 33. 
 State V. Dammeray (48 Me. 337), 139. 
 State V. David (131 Mo. 380), 575, 583, 
 
 674. 
 State V. Davidson (77 N. C. 532), 106. 
 State V. Davis (34 La. Ann. 35), 317. 
 State V. Davis (27 S. C. 609), 620. 
 State v. Dawson (22 Md. 272), 877. 
 State V. Dawson (90 Mo. 149), 87. 
 State V. Dawson (124 Mo. 418), 146. 
 State V. Dehlinger (46 Mo. 206), 196. 
 State Y. Deitz (67 Iowa, 220), 145. 
 State V. Dennis (33 Vt. 158), 25. 
 State V. Depoister (Nev., 35 Pac. Rep. 
 
 1000), 101. 
 State V. Desf orges (47 La. Ann. 1 167), 6. 
 State V. Dettner (134 Mo. 426), 19, 695. 
 State V. Dickinson (41 Wis. 399), 489. 
 State V. Dill (48 S. C. 849), 710. 
 State V. Dominique (30 Mo. 585), 486. 
 State V. Donelon (45 La. Ann. 613), 221. 
 State V. Dore (10 Ired. 469), 25. 
 State V. Douglas (44 Kan. 618), 33. 
 State V. Douglas (48 Mo. App. 39). 587. 
 State V. Doyle (107 Mo. 36), 137, 633. 
 State V. Drake (82 N. C. 592), 218. 
 State V. DufiEy (57 Conn. 525), 704. 
 State V. Dun wall (3 R. L 480), 189. 
 State V. Dyer (59 Me. 303), 106. 
 State V. Edwards (112 N. C. 901), 587. 
 State V. Edwards (3 Nott & McC. 13), 
 
 74. 
 State V. Effinger (44 Mo. App. 81), 187. 
 State V. Eisenhaus (133 Mo. 146), 146. 
 State V. Elkins (101 Mo. 344), 414, 454. 
 State V. Elliott (45 Iowa, 486), 453. 
 State V. Ell wood (17 R. L 768). 361, 704. 
 State V. Espinozei (30 Nev. 309), 204. 
 
 State v. Euzebe (43 La. Ann. 17), 504. 
 State v. Evans (8 Humph., Tenn., 110), 
 
 186. 
 State V. Evans (134 Mo. 397), 455. 
 State V. Evans (33 W. Va. 417), 414 
 State V. Fassett (16 Conn. 457), 103. 
 State V. Ferguson (107 N. C. 441), 327. 
 State V. Finlay (101 Mo. 317), 545. 
 State V. Finlay (118 N. C. 1161), 455, 
 
 705. 
 State V. Fitzhugh (3 Oreg. 237), 454. 
 State V. Fleak (54 Iowa, 439), 116. 
 State V. Foley (130 Mo. 482), 711. 
 State V. Ford (3 Strobh. 517), 23. 
 State V. Foster (8 Foster, 348), 70. 
 State V. Freeman (100 N. C. 429), ,505. 
 State V. Fritz (33 La. Ann. 55), 575. 
 State V. Frog (44 La. Ann. 65), 37. 
 State V. Gamble (108 Mo. 500), 603. 
 State V. Garland (95 N. C. 671), 707. 
 State V. Garrand (5 Oreg. 316), 488. 
 State V. Garrett (71 N. C. 85), 74 
 State V. Gay (18 Mont. 51), 451. 
 State V. Gay (94 N. C. 814), 573. 
 State V. Gedick (43 N. J. L. 86), 490. 
 State V. Geer (48 Kan. 793), 404 
 State V. George (15 La. Ann. 145), 218. 
 State V. Gibson (21 Ark. 140), 603. 
 State V. Ginger (80 Iowa, 574), 568. 
 State V. Gleiiu (31 L. R. A 394 IT 
 
 Mont. 17), 701, 707. 
 State V. Glynn (51 Vt. 577), 34 
 State V. Goodwin (33 W. Va. 177), 75. 
 State V. Graham (74 N. C. 646), 74 
 State V. Grant (86 Iowa, 216), 516. 
 State V. Green (48 S. C. 136), 514 
 State V. Griffin (48 La. Ann. 1409), , 
 
 514 
 State V. Gi-iffin (87 Mo. 608), 204 
 State V. Griswold (67 Conn. 290, 33 L. 
 
 R. A. 237), 76, 704 
 State V. Harper (85 Ohio St. 78), 455. 
 State V. Harr (38 W. Va. 58), 448. 
 State V. Harrigan (9 Houst, Del., 369), 
 
 659. 
 State V. Harris (45 La. Ann. 62), 494 
 
 670. 
 State V. Harrison (115 N. C. 706), 316. 
 State V. Harrison (66 Vt 528), 671. 
 State V. Harvey (131 Mo. 339), 714 
 
TABLE OF CASES. 
 
 CXXXIX 
 
 Ee/cre«ces are to pages. 
 
 State V. 
 
 717. 
 State V. 
 
 384. 
 State V. 
 
 S16. 
 State V. 
 State V. 
 
 669. 
 State V. 
 State V. 
 
 517. 
 State V. 
 
 603. 
 State V. 
 
 186. 
 State V. 
 
 562. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 714. 
 State V. 
 State V. 
 State v.- 
 
 205. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 588. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 701, 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 Hayward (62 Minn. 474), 709, 
 
 Hay ward (1 Nott & McC. 546), 
 
 Hedgepeth (125 Mo. 14), 90, 
 
 Heed (57 Mo. 352), 384. 
 Henderson (24 Oreg. 100), 491, 
 
 Higgins (124 Mo. 640), 182. 
 Hilderbrand (105 Mo. 318), 
 
 Hinchman (27 Pa. St. 479), 
 
 Hirch (Ind., 42 Alb. L. J. 197), 
 
 Holden (42 Minn. 350), 219, 
 
 Holmes (54 Mo. 158), 684 
 Hooker (17 Vt. 658), 476. 
 Hopkins (56 Vt. 250), 444. 
 Hopper (15 Vt. 585), 135. 
 Hoppiss (5 Ired., N. G, L. 406), 
 
 Horton (83 La. Ann. 289), 486. 
 Houston (78 Ala. 576), 588. 
 Howard (102 Mo. 142), 304, 
 
 Howard (9 N. H. 485), 84. 
 Howard (33 Vt. 380), 485, 489. 
 Howell (100 Mo. 628), 23, 361. 
 Hown (107 N. C. 810), 31, 35. 
 Hoyt (47 Conn. 518). 107. 
 Hurton (94 N. C. 947), 304. 
 Huxford (47 Iowa, 16), 588. 
 Jacobs (107 N. C. 8T3), 25. 
 James (31 S. C. 318), 560, 563, 
 
 James (34 S. C. 49), 84, 86. 
 Jansen (22 Kan. 498), 146. 
 Jarvis (18 Oreg. 360), 709. 
 Joest (51 Ind. 287), 433. 
 Johnson (48 Lp. Ann. 487), 
 706. 
 
 Johnson (13 Nev. 121), 475. 
 Johnson (26 S. C. 153), 451. 
 Jones (89 Iowa, 183), 674. 
 Jones (47 La. Ann. 1524), 714. 
 Jones (61 Mo. 333), 505. 
 Jon^s (106 Mo. 303), 37. 
 
 State V. Kaiser (134 Mo. 651), 491, 583. 
 State V. Kavanaugh (133 Mo. 453), 666. 
 State V. Keith (47 Minn. 559), 622, 633. 
 State V. Kelley (57 N. H. 549), 139. 
 State V. Kent (37 L. R. A. 686), 146. 
 State Y. Kidd (89 Iowa, 54), 93. 
 State V. Kiger (115 N. C. 746), 588. 
 State V. Kinder (96 Mo. 548), 317. 
 State V. Kindle (47 Ohio St. 358), 455. 
 State V. King (47 La. Ann. 38), 659. 
 State V. King (9 Mont. 445), 48.5. 
 State V. Kingsbury (58 Me. 238), 34. 
 State V. Kinley (43 Iowa, 294), 34. 
 State V. Kinney (44 Conn. 153), 505. 
 State V. Kinney (36 W. Va. 141), 204. 
 State V. Kirsohner (23 Mo. App. 349), 
 
 140. 
 State V. Klinger (46 Mo. 334, 328, 239), 
 
 588. 
 State V. Knapp (^5 N. H. 148), 505. 
 State V. Knight (48 Me. 11), 556, 667. 
 State V. Labersten (55 Kan. 674), 20. 
 State V. Lavin (80 Iowa, 555), 129. 
 State V. Lee (65 Conn. 365), 568. 
 State V. Leehman (S. D., 49 N. W. Rep. 
 
 3), 556. 
 State V. Lewis (56 Kan. 874), 75. 
 State V. Lewis (107 N. C. 967), 404, 599. 
 State v. Lewis (20 Nev. 333), 553, 587, 
 
 636. 
 State V. Lockerby (15 Crim. Law Mag. 
 
 915), 36. 
 State V. Lowhome (66 N. C. 639), 3ia 
 State V. Lowry (43 W. Va. 305), 711. 
 State V. Lull (37 Me. 346), 698. 
 State V. Mace (118 N. C. 1344), 455. 
 State V. Mack (41 La. Ann. 1079), 3.5. 
 State V. Madison (47 La. Ann. 30), 316. 
 State V. Maier (36 W. Va. 757), 537, 
 
 554, 555. 
 State V. Main (69 Conn. 133), 118, 546, 
 
 586, 600. 
 State T. Marshall (36 Mo. 400), 77. 
 State V. Martin (124 Mo. 514), 491. 
 State V. Martin (47 S. C. 67), 356. 
 State V. Mason (36 Oreg. 273), 695. 
 State V. Matlock (48 La. Ann. 663), 
 
 384. 
 State V. Mayberry (48 Me. 218), 245. 
 State V. Mays (24 S. C. 190), 714. 
 
cxl 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 State V. McCann (16 "Wash. 249), 708. 
 State V. McCord (8 Kan. 332), 104. 
 State V. McDonald (57 Kan. 537), 709. 
 State V. McFarlain (41 La. Ann. 686), 
 
 709. 
 State V. McGee (81 Iowa, 17), 517. 
 State V. McKean (36 Iowa, 343), 146, 
 
 147. 
 State V. McLeod (1 Hawks, N. C, 344), 
 
 476. 
 State V. Meekins (41 La. Ann. 548), 
 
 219. 
 State V. Merriman (34 S. C. 16), 568. 
 State V. Meyers (90 Mo. 107), 556. 
 State V. Minton (116 Mo. 302), 516. 
 State V. Mitchell (1 Phill., N. C, L. 
 
 447). 217. 
 State V. Mitchell (41 La. Ann. 1073), 
 
 36. 
 State V. Mollier (1 Dev. 263), 384. 
 State V. Moon (25 Iowa, 128), 146. 
 State v. Moore (117 Mo. 395), 316. 
 State V. Moorman (27 S. C. 22), 219. 
 State V. Moxley (102 Mo. 374), 568. 
 State V. Mulkern (85 Me. 106), 503. 
 State V. MuUins (101 Mo. 514), 672. 
 State V. Muller (100 Mo. 606), 21. 
 State V. Munchrath (78 Iowa, 268), 
 
 517. 
 State V. Myers (99 Mo. 107), C19. 
 State V. Myers (46 Neb. 172), 488. 
 State V. Nash (7 Iowa, 347), 453. 
 State V. Nelson (101 Mo. 464), 453. 
 State V. Nettlebush (20 Iowa, 257), 454. 
 State V. Niles (47 Vt 83), 505. 
 State V. O'Brien (81 Iowa, 88), 451, 
 
 707. 
 State V. O'Connell (83 Me. 30), 585. 
 State V. 0"Neal (7 Ired. 251), 33. 
 State V. O'Neal (4 Ired., N. C, L. 88), 
 
 34. 
 State V. Orford (30 Tex. 438), 103. 
 State V. Pain (48 La. Ann. 311), 714. 
 State V. Pancoast (5 N. D. 514), 75, 666, 
 
 703, 708. 
 State V. Panshon (133 Mo. 44), 487. 
 State V. Parish (23 Miss. 483), 604. 
 State V. Parker (96 Mo. 383), 499. 
 State V. Parker (106 N. C. 711), 436, 
 
 429, 438. 
 
 State V. 
 
 24. 
 State T. 
 
 33. 
 State V. 
 State V. 
 
 454, 
 State V. 
 
 190, 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 74. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State Y. 
 State V. 
 State V. 
 State V. 
 State T. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 397, 
 State V, 
 State V, 
 
 Parks (3 Ired,, N. 0., L. 396), 
 
 Patterson (2 Ired., N. C, 346), 
 
 Patterson (95 Mo. 525), 433. 
 Patterson (45. Vt 308), 451, 
 455. 
 
 Pennington (124 Mo. 388), 19, 
 193. 
 
 Perkins (3 Hawks, 377), 204. 
 Perkins (24 N. J. L. 409), 613, 
 Phelps (74 Mo. 128), 218. 
 Phelps (11 Vt 116), 216. 
 Phillips (136 Mo. 117), 670. 
 Pike (49 N. H. 399), 588. 
 Plym (43 Minn. 385), 396, 632. 
 Pool (20 Oreg. 15U), 451. 
 Potter (18 Conn. 160), 216, 
 Potter (108 Mo. 424), 207. 
 Potts (100 N. C. 457), 587,667. 
 Pratt (88 N. C. 039), 219. 
 Prudhomme (25 La. Ann. 522), 
 
 Quailes (8 Eng. 307), 75. 
 Ramsey (82 Mo. 133), 588. 
 Raymond (20 Iowa, 5S2), 384. 
 Reddick (7 Kan. 143), 556. 
 Reed (63 Iowa, 40), 657. 
 Reed (63 Me. 129, 143), 204. 
 Reed (89 Mo. 168), 36. 
 Rhodes illl N. C. 647), 8. 
 Ritchie (38 La. Ann. 327), 136. 
 Robinson (35 S. C. 340), 257. 
 Rogers (54 Kan. 683), 516. 
 Rogers (100 Mo. 203), 21. 
 Rogers (119 N. C. 793), 656. 
 Rose (47 Minn. 47), 36. 
 Russell (13 Mont 164), 451. 
 Rutten (13 Wash. 303), 701. 
 Sargent (45 Conn. 358), 654. 
 Saunders (14 Oreg. 300), 455. 
 Sawtelle (66 N. H. 488), 254. 
 Sayers (58 Mo. 585), 709. 
 Scanlon (58 Me. 206), 136. 
 Schaffer (42 Kan. 117), 361. 
 Schneider (35 Mo. 533), 490. 
 Schweitzer (57 Conn. 583), 361, 
 , 621. 
 
 Scott (49 La. Ann. 253), 658. 
 Seabrook (42 S. C. 74), 441. 
 
TABLE OF CASES. 
 
 cxli 
 
 Eeferences are to pages. 
 
 State V. Senn (32 S. C. 392), 183, 187. 
 State V. Severson (78 Iowa, 653), 137. 
 State V. Shaffer (23 Oreg. 555), 452. 
 State V. Sharp (132 Mo. 165), 699, 711. 
 State V. Sheets (89 N. C. 543), 540. 
 State V. Shelton (2 Jones, N. G, 360), 
 
 455. 
 State V, Sherman (42 Mo. 210), 185. 
 State V. Shrayer (104 Mo. 441), 21. 
 State V. Shuford (69 N. C. 486), 499. 
 State V. Sibley (130 Mo. 519, 1 Fed. & 
 
 St Or. Rep. 133), 35. 
 State v. Simon (50 Mo. 370). 451. 
 State V. Smith (57 Kan. 673), 703, 713. 
 State V. Smith (48 La. Ann. 533), 452. 
 State V. Smith (32 Me. 369), 540. 
 State V. Smith (17 R. I. 415), 403. 
 State V. Smith (2 Strobh. 77), 667. 
 State V. Southern (48 La. Ann. 628), 
 
 701. 
 State V. Spurling (118 N. C. 1250), 695. 
 State V. Stade (1 D. Chip. 303), 238. 
 State V. Staley (14 Minn. 105), 34. 
 State V. Staples (47 N. H. 113), 82, 204, 
 
 474. 
 State V. Stebbins (29 Conn. 483), 145. 
 State V. Steeves (29 Oreg. 85), 715. 
 State V. Steward (47 La. Ann. 410), 659. 
 State V. Stinson (17 Me. 154), 135. 
 State V. Sugge (89 N. C. 527), 218. 
 State V. Sullivan (51 Iowa, 142), 455. 
 State V. Summers (36 S. C. 479), 548. 
 State V. Swift (57 Conn. 496), 451. 
 State V. Symonds (57 Me. 148), 218. 
 State V. Ta Image (107 Mo. 543), 633. 
 State V. Taylor (44 La. Ann. 783), 36. 
 State v. Taylor (134 Mo. 109), 660. 
 State V, Terrell (12 Rich., S. G, 321), 
 
 454, 455. 
 State V. Thaden (43 Minn. 325), 517. 
 State V. Thaden (43 Minn. 253), 74. 
 State V. Thibau (30 Vt 100), 32. 
 State V. Thibodeaux (48 La, Ann. 600), 
 
 516. 
 State V. Thomas (30 La. Ann. 600), 488. 
 State V. Thomas (99 Mo. 235), 11. 
 State V. Thomas (3 Strobh. 269), 25. 
 State V. Thompson (19 Iowa, 399), 119. 
 State V. Thompson (41 La. Ann. 1088), 
 
 563. 
 
 State V. Thompson (80 Me. 194), 576. 
 State V. Thomson (79 Iowa, 703), 247. 
 State V. Townsend (3 Harr., Dsl., 543), 
 
 135. 
 State V. Trivas (32 La. Ann. 1086), 667. 
 State V. Turlington (102 Mo. C42), 709. 
 State V. Tweedy (11 Iowa, 350), 455. 
 State V. Umble (115 Mo. 452), 452. 
 Stale V. Vallery (47 La. Ann. 152), 659. 
 State V. Valwell (66 Vt 558), 19. 
 State V. Van Winkle (80 Iowa, 15), 75, 
 
 81. 
 State V. Wagner (61 Me. 178), 455. 
 State V. Walsh (44 La. Ann. 1122), 669, 
 
 705. 
 State V. Warner (74 Mo. &3), 505. 
 State V. Watson (82 Iowa, 380), 542. 
 State V. Weare (38 N. H. 314), 271. 
 State' V. Welch ('36 W. Va. 690), 583. 
 State V. Welles (9 Iowa, 583), 146. 
 State V. Welsor (117 Mo. 570), 452, 555. 
 State V. Wenzel (77 Ind. 428), 362. 
 State V. Westfall (49 Iowa, 328), 454. 
 State V. Whilebon (103 Mo. 17), 35. 
 State T. Wliite (19 Kan. 445), 88. 
 State V. Whitefield (109 U. S. 870), 319. 
 State V. Whittier (21 Me. 341), 136. 
 State V. Whitson (111 N. C. 659), 667. 
 State T. Williams (42 Corin. 261), 145. 
 State T. Williams (54 Mo. 170), 304. 
 State V. Williams (67 N. C. 12), 453. 
 State V. Williams (35 S. C. 160), 62.5. 
 State V. Williams (5 Wis. 308), 190. 
 State V. Williamson (106 Mo. 163), 587. 
 State V. Wilson (23 La. Ann. 558), 454. 
 State V. Wilson (111 N. C. 695), 207. 
 State V. Wolfe (8 Conn, 93), 132. 
 State V. Wood (17 Iowa, 18), 384. 
 State V. Wood (53 N. H. 484), 103. 
 State V. Woodward (123 Ind. 30), 614. 
 State V. Workman (39 S. C. 132), 667. 
 State V. York (37 N. H. 75), 218. 
 State, Consolidated Traction Co. v. 
 
 Elizabeth (31 L. R. A. 170, 58 
 
 N. J. L. 619), 643. 
 State, Joslin v. Giese (59 I^. J. L. 130), 
 
 302. 
 State, Martin v. Tally (102 Ala. 25), 93. 
 State, Stanford v. Ellington (30 L. R. 
 
 A. 533, 110 N. C. 158), 623, C24. 
 
oxlii 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 State, Thayer v. Boyd (31 Neb. 382), 
 
 224. 
 State ex lel. Croy v. Gregory (132 Ind. 
 
 387), 275. 
 State ex rel. Greenwood v. Board of 
 
 Supervisors (125 111. 334), 233. 
 State ex rel. Leonard v. Sweet (27 La. 
 
 Ann. 541), 405. 
 State ex rel. Schuiiiachor v. Gramels- 
 
 pacher (126 Ind. 398), 193. 
 State Bank v. McNiel (1 Hawks, N. C, 
 
 36), 220. 
 State Trust Co. v. Owen Paper Co. 
 
 (162 Mass. 156), 7. 
 Stauter v. Manhattan R. Co. (127 N. Y. 
 
 661, 38 N. Y. State Rep. 162), 568, 
 
 569. 
 Stavers v. Rogers (3 Wash. 603), 309. 
 St Clair L. & L Co. v. Martin (125 
 
 Mo. 114), 185. 
 St Devereux v. Much Dow Church 
 
 (1 W. Bl. 367), 434. 
 Stead V. H?aton (4 T. R. 669), 457, 458. 
 Stead V. Worcester (150 Mass. 241), 586. 
 Steam Nav. Co. v. Weed (17 Barb. 
 
 578), 370. 
 Steamboat Co. v. Brockett (121 V. S. 
 
 637), 485. 
 Steamer Niagara v. Cordes (21 How., 
 
 U. S., 7), 605. 
 Stearns v. Merchants' Bank (53 Pa. 
 
 St 490), 30. 
 Stearns v. Stearns (32 Vt 678), 603. 
 Stedman v. Rochester L. & B. Co. (43 
 
 Neb. 641), 53. 
 Steed V. Kuowles (97 Ala. 573), 564. 
 Steeds v. Steeds (L. R. 22 Q. B. D. 537, 
 
 41 Alb. L. J. 37), 655. 
 Steel V. Pricketfc (3 Stark. 466), 421, 
 
 654. 
 Steele v. Ward (30 Hun, 555), 150, 164. 
 Steerla v. Kaiser (La. Ann., 12 So. 
 
 Rep. 839), 272. 
 Stefifens v. Steffens (16 Daly, 363), 630. 
 Steflfens v. Steffens (33 N. Y. State 
 
 Rep. 643), 105, 142, 620. 
 Steffens v. Steffens (11 N. Y. Supp. 
 
 434), 143. 
 Stein V. Bienville Water Supply Co. 
 (141 U. S. 67), 376. 
 
 Stein V. Bowman (13 Pet 209), 105, 
 
 143, 238. 
 Stein V. Swenson (44 Minn. 218), 645. 
 Stein V. Swesen (46 Minn. 360), 285, 
 
 397. 
 Steiner v. Eppinger(61 Fed. Rep. 253), 
 
 162. 
 Steiner v. Tranum (98 Ala. 315), 565. 
 Stein hart v. Farrell (3 N. Y. State 
 
 Rep. 293), 83. 
 Steinhauseu v. Preferred Mut Ace. 
 
 Ass'n (59 Hun, 336, 36 N. Y. State 
 
 Rep. 70), 513. 
 Stephens v. Monongahela (88 Pa. St 
 
 157), 315. 
 Stephenson v. Felton (106 N. C. 114), 
 
 399, 603. 
 Stephenson v. Leesburgh (33 Ohio St. 
 
 475), 63. 
 Stephenson v. Richards (45 Mo. App. 
 
 544), 639. 
 Steppe V. National Life & M. Ass'n 
 
 (37 S. C. 417), 564. 
 Stern v. State (53 Ga. 339), 598. 
 Sterns v. Dubois (55 Ind. 257), 57. 
 Stevens v. Beach (2 Vern. 585), 31. 
 Stevens v. Carson (30 Neb. 544), 601. 
 Stevens v. Dennett (51 N. H. 334), 123. 
 Stevens v, Ely (14 App. Div. 393), 332. 
 Stevens v. Flanagan (131 Ind. 122), 
 
 330. 
 Stevens v. Lafayette, etc. R Co. (99 
 
 Ind. 392), 46. 
 Stevens v. McCloy (36 Iowa, 659), 485. 
 Stevens v. Melcher (153 N. Y. 551), 112, 
 
 135. 
 Stevens v. Newcomb (4 Denio, 437), 
 
 405. 
 Stevens v. Paterson, etc. R. Co. (5 
 
 Vroom, 532, 545, 555), 654. 
 Stevens v. People (158 111. Ill), 488. 
 Stevens v. Rogers (35 Hun, 54), 536. 
 Stevens v, Stevens (57 Hun, 490), 105, 
 
 143. 
 Stevens v. Stevens (150 Mass. 557), 562. 
 Stevens v. Stevens (37 N. Y. State Rep. 
 
 603, 8 N. Y. Supp. 485), 143. 
 Stevens v. Vrooman (6 N. Y. 381), 413. 
 Stevens v. Witter (83 Iowa, 636), 158. 
 Stevenson v. Gunning (64 Vt 601), 355. 
 
TABLE OF CASES. 
 
 csliii 
 
 Ilefer€nce& are to pages. 
 
 Stevers v. N. Y. C. & H. E. R Co. (7 
 
 App. Div. 393), 553. 
 Stewart v. Cincinnati, W. & M, R Co. 
 
 (89 Mich. 315), 358. 
 Stewart v. Evarts (76 Wis. 85), 501, 
 
 505. 
 Stewart v. Kindel (15 Colo. 539), '109. 
 Stewart v. Peterson (37 Hun, 113), 163. 
 Stewart v. Porter Mfg. Co. (13 N. Y. 
 
 State Rep. 331), 15. 
 Stewart v. Powell (10 L. R A, 57), 685. 
 Stewart v. Severance (43 Mo. 333), 487, 
 
 490. 
 Stewart v. Smith (92 Wis. 76), 38, 713. 
 Stewart v. Swanzy (23 Miss. 503), 334. 
 Stickney v. Stickney (131 U. S. 227X 9. 
 Stileman-Gifford v. Wilkinson (1897, 3 
 
 Q. B. 749), 646. 
 Stiles V. Danville (43 Vt 383), 504. 
 Still V. Eeese (47 Cal. 394), 485. 
 Stillings V. Trimaiins (153 Mass. 147), 
 
 266. 
 SUUinan v. Hurd (10 Tex. 107), 393. 
 Still man v. Northrup (109 N. Y. 473, 
 
 16 N. Y. State Rep. 417), 868. 
 Stillman v. Palis (38 111. App. 408), 383. 
 Stillwater v. Fairwell (64 Vt. 386), 464. 
 Stillwell V. Patton (108 Mo. 353), 157, 
 
 648. 
 Stillwell V. St Louis & H. R Co. (39 
 
 Mo. App. 331X 374, 381. 
 Stil well V. Carpenter (59 N. Y. 414), 111. 
 Stinchfield v. Emerson (52 Me. 465), 
 
 639. 
 Stinchfield v. Miliken (71 Me. 567), 318. 
 St John V. Mi-ssouri P. R Co. (101 
 
 Mo, 417), 563. 
 St John's Church v. Steinmetz (18 Pa. 
 
 St 373), 380. 
 St Louis V. Reg. (4 Can. Exch. 185), 
 
 603. 
 St Louis, A. & T. H. R. Co. v. Bauer 
 
 (156 111. 106), 344. 
 St Louis, A. & T. H. R Co. v. Bell- 
 
 ville City R Co. (158 III. 390), 480. 
 St Louis, A. & T. H. R Co. v. Claunoh 
 
 (41 111. App. 592), 35a 
 St Louis, A. & T. H. R Co. v. Egg- 
 
 mann (161 111. 155, 60 111. App. 
 
 291), 643. 
 
 St Louis, A. & T. IT. R Co. v. Johns- 
 ton (78 Tex. 536), 549, 583. 
 St Louis, A. & T. H. R Co. v. Jones 
 
 (Tex., 4 S. W. Rep. 309), 582. 
 St Louis, etc. R. Co. v. Whitaker (68 
 
 Tex. 630), 67. 
 St Louis F. Nat Bank v. Nichols (43 
 
 Mo. App. 385), 207. 
 St Louis Gas Light Co. v. American 
 
 Fire Ins. Co. (33 Mo. App. 348), 586. 
 St Louis, L M. & S. R Co. v. Edwards 
 
 (49 U. S. App. 53, 78 Fed. Rep. 
 
 745), 535, 547, 677. 
 St Louis, I. M. & S. R Co. v. Green- 
 thai (77 Fed. Rep. 150), 493. 
 St Louis, I. M. & S. R Co. v. Lyman 
 
 (57 Ark. 16), 527. 
 St Louis, L M. & S. R Co. v. Murphy 
 
 (60 Ark. 388), 468. 
 St Louis, I. M. & S. R. Co. v. Yar- 
 
 borough (56 Ark. 612), 523. 
 St Louis R R Co. v. Thomas (85 111. 
 
 464), 204. 
 St Louis & F. R Co. v. Brown (63 
 
 Ark. 254), 561. 
 St Mary Magdalen v. Attorney-Gen- 
 eral (6 H. L. Cas. 189), 647. 
 Stockbridge v. West Stockbridge (12 
 
 Mass. 399), 235. 
 Stockton Savings & Loan Ass'n v. 
 
 Giddings (96 Cal. 84, 31 Am. St 
 
 Rep. 181), 373. 
 Stockwell v. Dillingham (50 Me. 442), 
 
 409. 
 Stockwell T. United States (18 Wall. 
 
 531), 410. 
 Stoddard v. Mix (14 Conn. 12), 358. 
 Stoddard v. Whitney (46 N. Y. 637), 
 
 267. 
 Stodder v. Hoffman (158 111. 486), 169. 
 Stokes V. Dawes (4 Mason, 268), 482. 
 Stokes V. Macken (63 Barb. 145), 185, 
 
 194, 195, 641. 
 Stokes V. People (53 N. Y. 164), 667. 
 Stokes V. State (88 Ala., 5 Baxt, 619), 
 
 74. 
 Stokes V. United States (157 U. S. 187), 
 
 516. 
 Stolp V. Blair (68 111. 541), 35. 
 Stone V. Britton (22 Ala. 543), 123. 
 
cxliv 
 
 TABLE OF CASES. 
 
 References are to' pages. 
 
 Stone V. Frost (61 N. Y. 614), 374. 
 Stone V. Hubbard (61 Mass. 595), 579. 
 Stone V. Knowlton (S Wend. 374), 68. 
 Stone V. Moore (83 Iowa, 186), 566, 587. 
 Stone V. Nelley (43 Neb. 567), 40. 
 Stone V. Poland (58 Hun, 31, 33 N. Y. 
 
 State Rep. 437), 498. 
 Stone V. Town of Poland (81 Hun, 133), 
 
 18. 
 Stone V. United States (167 U. S. 178), 
 
 117. 
 Stonebridge v. Perkins (141 N. Y. 1), 
 
 43. 
 Stoneman v. Erie R. Co. (53 N. Y. 439), 
 
 399. 
 Stoops V. Smith (100 Mass. 63, 66), 268. 
 Storer v. Taber (83 Me. 387), 330. 
 Storing v. Bowen (6 Barb. 109), 446. 
 Storm V. Atlantic Mut Ins. Co. (63 
 
 N. Y. 87), 704. 
 Storm V. United States (94 U. S. 76), 
 
 705. 
 Storrs V. Storrs (23 Fla. 274), 601. 
 Story V. Bishop (4 E. D. Smith, 433), 
 
 374. 
 Story V. Lovett (1 R D. Smith, 153), 
 
 225. 
 Stossel V. Van De Vanter (16 Wash. 9), 
 
 708. 
 Stott T. New York, L. E. & W. R Co. 
 
 (50 N. Y. State Rep. 500, 143 N. Y. 
 
 685), 260, 861. 
 Stoudennie v. Harper (81 Ala. 242), 
 
 474. 
 Stout V. Russell (3 Yeates, 834), 84. 
 Stouvenal v. Stephens (3 Daly, 323), 
 
 630. 
 Stouvenal v. Stephens (26 How. Pr., 
 
 N. Y., 244), 436. 
 Stoval V. Banks (10 Wall. 583), 210. 
 Stover V. People (56 N. Y. 315), 73. 
 Stowe V. Querner (L. R. 5 Exch. 155), 
 
 343. 
 Stowell V. American Co-op. Relief 
 
 Ass'n (33 N. Y. State Rep. 706), 98. 
 Stowell V. Otis (71 N. Y. 36), 43. 
 Stoyell V. Stoyell (82 Me. 332), 309. 
 Strand v. Tilton (4 Abb. Ct. App. Dec. 
 
 334), 464. 
 Strange v. Wigney (6 Bing. 677), 363. 
 
 Stratton v. Lockhart (3 Ind. App. 380), 
 
 559. 
 Strauss v. Hensey (7 App. D. C. 289), 
 
 311. 
 Strawbridge v. Spann (8 Ala. 820, 825), 
 
 697. 
 Street v. Andrews (115 N. C. 417), 603. 
 Stringert v. Ross Township (179 Pa. 
 
 St 614), 348. 
 Stringfellow v. State (36 Miss. 157), 
 
 316, 696. 
 Strohm v. N. Y., L. E. & W. R. Co. 
 
 (96 N. Y. 305), 535, 540, 570. 
 Strong V. Strong (84 Hun, 314), 50. 
 Strother v. Lucas (6 Pet 763), 575. 
 Strough V. Wilder (49 Hun, 409), 158, 
 
 163. 
 Strout,li V. Wilder (119 N. Y. 580, 33 
 
 N. Y. State Rep. 481), 179. 
 Stuart V. Binnse (7 Bosw. 195), 469. 
 Stuart V. Kissam (11 Barb. 383), 387. 
 Studstill V. Wilcox (94 Ga. 690), 373. 
 Stugle V. Beachboard (68 Mich. 401), 
 
 65. 
 Stull V. Thompson (154 Pa. St 43), 
 
 801. 
 Sturge V. Buchanan (10 A. & E. 598, 
 
 604), 232. 
 Sturgis V. Hendricks (51 N. Y. 635), 
 - 693. 
 Sturgis V. Wiltsee (19 N. Y. Weekly 
 
 Dig. 266), 545. 
 Sturgis V. Work (123 Ind. 134), 274, 
 
 392. 
 Sturla V. Freccia (5 App. Cas. 623, 
 
 640), 439. 
 Sturtevant v. Randall (53 Me. 149), 
 
 313. 
 Styles v. Fuller (101 N. Y. 632), 65. ' 
 Sublett V. Hodges (88 Ala. 491), 151, 
 
 170. 
 Succession of Wade (31 La. Ann. 343), 
 
 105. 
 . Sudlaw V. Warshing (108 N. Y. 520), 
 
 580. 
 Sugarmann v. Manhattan El. R. Co. 
 
 (43 N. Y. State Rep. 30), 6ia 
 Sullivan v. Collins (30 Colo. 528), 273. 
 Sullivan v. Com. (93 Pa. St 284, 296), 
 
 451. 
 
TABLE OF CASES. 
 
 cxlv 
 
 References are to pages. 
 
 Sullivan v. Goldman (19 La. Ann. 13), 
 
 635. 
 Sullivan v. Honacker (6 Fla. 372), 67, 
 Sullivan v. Lattimer (38 S. C. 17), 159. 
 Sullivan v. Lear (11 Am. St Rep. 388), 
 
 680. 
 Sullivan v. Lear (38 Fla. 463), 679, 680. 
 Sullivan v. McMillan (36 Fla. 443), 331. 
 Sullivan v. Salt Lake City (13 Utah, 
 
 123), 530. 
 Sulphur Min. Co. v. Thompson (93 
 
 Va. 293), 441. 
 Sulphur Springs F. Nat Bank v. Wil- 
 lis (83 Tex. 168), 348. 
 Summerhill v. Tapp (53 Ala. 337), 315. 
 Summerlot v. Hamilton (131 Ind. 87), 
 
 410. 
 Summerville v. Crook (9 Hun, 664), 
 
 159. 
 Summers v. State (5 Tex. App. 365), 
 
 98. 
 Summons v. State (5 Ohio St 325), 474. 
 Sumner v. Blair (9 Kan. 531), 706. 
 Sunday v. Thomas (36 Ga. 287), 247. 
 Sunny 8. L. Co. v. A. J. Neimeyer L. 
 
 Co. (63 Ark. 268), 124. 
 Supperly v. Steward (50 Barb. 68), 284. 
 Supreme Council of E. A. v. Carley 
 
 (52 N. J. Eq. 642), 603. 
 Supreme L. of K. v. Hollschlager (23 
 
 Colo. 21,3), 215. 
 Surrey Canal Co. v. Hall (1 Man. & 
 
 Gr. 392), 650, 651. 
 Sutherland v. Ross (140 Pa, St 879), 
 
 170. 
 Sutherland v. Standard L. & Ace. Ins. 
 
 Co. (22 Ins. L. J. 353, 87 Iowa, 
 
 505), 362. 
 Sutton V, Johnstone (1 T, R 498, 503), 
 
 ■ - 604. 
 Sutton V. People (145 111. 379), 363. 
 Sutton V. Sadler (3 C. B., N. S., 87), 
 
 343. 
 Suydam v. New York Elev. E. Co. (46 
 
 N. Y. State Rep. 360), 681. 
 Swager v. Lehman (63 Wis. 399), 133, 
 Swailes v. White. (149 Pa, St 361), 553. 
 Swain v. Humphrey (43 III. App. 370), 
 
 84. 
 Swain v. Seamens (76 U. S. 872), 819. 
 
 Swales V. Grubbs (126 Ind. 106), 187, 
 
 576. 
 Swan V. Middlesex (101 Mass. 173), 
 
 557. 
 Swan V. Morgan (88 Hun, 378), 151, 
 
 163. 
 Sweet V. Rechel (159 U. S. 380, 40 L, 
 
 Ed. 188, 16 Sup. Ct Rep. 43), 643. 
 Sweet V. Sherman (31 Vt 83), 26. 
 Sweet V. Tuttle (14 N. Y. 403), 503. 
 Sweet y. Wright (57 Iowa, 510), 486. 
 Sweetland v. Sweetland (3 Mich. 482), 
 
 68. 
 Sweetser v. Drove (19 Ala, 355), 383, 
 Sweezey v. Collins (40 Iowa, 540), 
 
 182. 
 Swenk v. People (80 111. App. Ill), 89. 
 Swift V. Mass. Mut Life Ins. Co. (63 
 
 N. Y. 186), 486. 
 Swift & Co. V. Madden (165 111. 41). 
 
 705. 
 Swinerton v. Columbia Ins. Co. (37 
 
 N. Y. 174), 185. 
 Swink V. French (11 Lea, 78), 438. 
 Swope V. Fair (18 lud. 300), 45. 
 Sydleman v. Beck with (43 Conn. 9), 
 
 525, 587. 
 Sydner v. Seaneu (8 App. Div. 858), 
 
 380. 
 Sylvester v. Crapo (15 Pick. 98), 213. 
 Sylvester v. Downer (20 Vt 355), 311. 
 Sylvester v. State (72 Ala. 301), 667. 
 Symmes v. Maor (31 Ind. 443), 193. 
 
 Tabor v. Judd (63 N. H. 288), 655. 
 Tacoma v. Tacoma L. & W. Co. (16 
 
 Wash. 288), 118. 
 Taggart v. Newport Street R. Co. (41 
 
 Alb. L. J, 416), 187, 
 Tait V. Hall (71 Cal, 149), 485. 
 Talbot V. Cussack (17 Ir. C. L. E. 218), 
 
 700. 
 Talbot V. Hodson (7 Tenn. 351), 226, 
 
 229, 
 Talbott V. West Virginia C. & P. R. 
 
 Co. (48 W. Va. 560), 606. 
 Talcot V. Cora. Ins. Co. (3 Johns. 134> 
 
 467), 608. 
 
cxlvi 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Tallahassee Man. Co., Matter of (64 
 
 Ala. 593), 364. 
 Talman v. Ward (86 Me. 803), 300. 
 Tanner v. Taylor (3 T. R. 754), 700. 
 Tanton v. Keller (167 111. 189), 621. 
 Taplin v. Atty (3 Bing. 164), 248. 
 Tarbox v. Eastern Steamboat Co. (50 
 
 Me. 339), 605. 
 Tasker v. Stanley (158 Mass. 148), 559. 
 Tate V. Tate's Ex'rs (75 Va. 532, 533), 
 
 456. 
 Tatham v. Wright (2 Russ. & Mylne, 
 
 7 A. & E., 313), 536. 
 Taussig V. Glenn (51 Fed. Rep. 409), 
 
 481. 
 Taylor v. Arnold (13 Ky. L. Rep. 516), 
 
 513. 
 Taylor v. Ballard (17 N. Y. State Rep. 
 
 598), 45. 
 Taylor v. Baltimore & O. R Co. (33 
 
 " W. Va. 39), 528. 
 Taylor v. Bank of Alexandria (5 
 
 Leigh, 471), 338. 
 Taylor v. Barclay (2 Simras, 213), 184. 
 Taylor v. Bradley (39 N. Y. 144), 531. 
 Taylor v. Cole (7 T. R. 8), 437. 
 Taylor v. Crockett (123 Mo. 300), 300. 
 Taylor v. Davis (82 Wis. 455), 465. 
 Taylor v. Dominick (36 S. C. 368), 36. 
 Taylor v. Dugger (66 Ala. 444), 638. 
 Taylor v. French (2 Lea, 560), 311. 
 Taylor v. Guest (58 N. Y. 262), 51. 
 Taylor v. Gould (57 Pa. St. 152), 456i 
 Taylor v. Moore (63 Vt. CO), 281. 
 Taylor v. Newman (77 Mo. 357J, 315. 
 Taylor v. Pegrim (151 111. 106), 93. 
 Taylor v, Pennsylvania S. V. R. Co. 
 
 (174 Pa. St. 171), 350. 
 Taylor v. Penquite (35 Mo. App. 389), 
 
 538. 
 Taylor v. Riggs (1 Pet. 591, 596), 341. 
 Taylor v. Sayre (34 N. J. L. 647), 321. 
 Taylor y. Smith (16 Ga. 7), 36. 
 Taylor v. State (83 Ga. 647), 556. 
 Taylor v. Welsh (92 Hun, 372), 160. 
 Taylor, Matter of (9 Paige, 611), 485. 
 Taylor B. & H. R. Co. v. Warner (88 
 
 Tex. 642). 257. 
 Taylor County v. Standley (79 Iowa, 
 
 666), 517. 
 
 Teal V. Woodworth (3 Paige, 470), 113. 
 Teall V. Consolidated Electric Light 
 
 Co. (119 N. Y. 654, 30 N. Y. State 
 
 Rep. 117), 360. 
 Teller v. Patten (30 How., U. S., 125), 
 
 408. 
 Telska v. N. Y. C. & H. R. R Co. (153 
 
 N. Y. 339), 582. 
 Temple v. State (15 Tex. App, 304), 
 
 451. 
 Templeton v. Luckett (41 U. S. App. 
 
 393), 589, 619. 
 Tennis v. Rapid Transit Co. (45 Kan. 
 
 503), 485. 
 Tenny d. Whinnett v. Jones (3 M, & 
 
 Scott, 473), 647. 
 Terre Haute & L R Co. v. Clem (133 
 
 Ind. 15), 613. 
 Terrill v. Beecher (9 Conn. 344), 4C5. 
 Territory v. Duran (3 N. M. 134), 137. 
 Territory v. Godfrey (6 Dak. 46), 504 
 Territory v. 0'Hare(l N. Dak. 30), 573. 
 Territory v. Roberts (9 Mont. 18), 553, 
 
 587. 
 Terry v. Munger (49 Hun, 560), 69. 
 Terry y. National Bank (93 Ala. 599), 
 
 444. 
 Teri'y v. New York C. R Co. (32 Barb. 
 
 574), 606. 
 Texas v. Chiles (81 Wall. 488), 133. 
 Texas & N. O. R Co. v. Crowder (76 
 
 Tex. 499), 607. 
 Texas & P. R Co. v. Barrett (166 U.S. 
 
 617), 349, 607. 
 Texas & P. R Co. v. Barron (78 Tex. 
 
 431), 504. 
 Texas & P. R Co. v. Brick (83 Tex. 
 
 598), 351. 
 Texas & P. R Co. v. Brown (78 Tex. 
 
 387), 37. 
 Texas & P. R Co. v. Burnett (80 Tex. 
 
 536), 568. 
 Texas & P. R Co. v. Lester (75 Tex. 
 
 56), 497. 
 Texas Standard Cotton-Oil Co. v. 
 
 Adoue (83 Tex. 650, 45 Alb. L J. 
 
 476), 194. 
 Thacher v. Stevens (46 Conn. 561), 312. 
 Thaiede v. Utah (159 U. S. 510), 493. 
 Thalheim v. State (38 Fla. 169), 573. 
 
TABLE OF CASES. 
 
 cxlvii 
 
 References are to pages. 
 
 Tharpe v. Cisbnrne (2 C. & P. 21), 228. 
 Thayer v. Boyd (31 Neb. 6B2), 183,233. 
 Thayer v. Daniels (113 Mass. 139), 875. 
 Theisen v. Dayton (83 Iowa, 74), 93. 
 Thomas v. Beal(48 Fed. Rep. 618), 468. 
 Thomas v. Bishop (Cas. Temp. Hardw. 
 
 1), 815. 
 Thomas v. Citizens' Pass. R. Co. (182 
 
 Pa. St. 504), 613. 
 Thomas v. Gage (141 N. Y. 506), S07. 
 Thomas v.Herrall (18 Oreg. 546), 501. 
 Tliomas v. Huckill (34 W. Va. 385), 
 
 558. 
 Thomas v. Jenkins (6 A. & E. 535), 
 
 417. 
 Thomas v. Miller (165 Pa. St. 216), 148. 
 Thomas v. Philadelphia & R. R Co. 
 
 (148 Pa. St. 180), 606. 
 Thomas v. Scott (127 N. Y. 133, 38 
 
 N. Y. State Rep. 696), 305, 881. 
 Thomas v. Sternheimer (29 Md. 368), 
 
 308. 
 Thomas v. Stigers (5 Pa. St. 480), 189. 
 Thomas v. Thomas (16 Neb. 553), 628. 
 Thomas v. Truscott (53 Barb. 300), 336. 
 Thompson v.. Bennett (33 C. P., U. C, 
 
 393), 446. 
 Thompson v. Blackwell (17 B. Mon. 
 
 , fi09), 476. 
 Thompson v. Blanohard (4 N. Y. 303), 
 
 29. 
 Thompson v. Boyle (85 Pa. St 477), 
 
 556. 
 Thompson v. Dickhart (66 Barb. 604), 
 
 J 536.' 
 Thompson v. Hodgdon (13 Ad. & E. 
 
 135), 350. 
 Thompson v. Hopper (6 E. & B. 173, 
 
 937), 608. 
 Thompson v. Ish (99 Mo. 160), 414, .531. 
 Thompson v. Musser (1 Dall. 458, 463), 
 
 ,, ,388. 
 Thompson v. Poor (57 Hun, 653, 51 
 
 N. Y. State Rep. 350), 318.- 
 Thompson v. Poor et al. (57 Hun, 285, 
 
 33 N. Y. State Rep. 371), 319. 
 Thompson v. Riggs (5 Wall. 663, 679), 
 
 264. 
 Thompson v. Roberts (34 How., U. S-, 
 
 283), 110. 
 J 
 
 Thompson v. Rowman (6 Wall, 316), 
 
 410. 
 Thompson v. Southern California M. 
 
 R Co. (82 Cal. 497), 275. 
 Thompson v. Stewart (3 Conn. 171), 
 
 334. 
 Thompson v. Thompson (132 Ind. 288), 
 
 403. 
 Thompson v. Whitman (18 Wall. 457), 
 
 118. 
 Thorington v. Smith (8 Wall. 1, 13), 
 
 368. 
 Thorman v. Polya (48 N. Y. State Rep. 
 
 671), 303. 
 Thorn v. Salmonson (37 Kan. 441), 117. 
 Thornton v, Britton (144 Pa. St. 136), 
 
 475. 
 Thornton v. Hook (36 Cal. 323), 706. 
 Thornton v. Thornton (39 Vt. 133), 718. 
 Thurman v. Cameron (34 Wend. 87), 
 
 335. 
 Thurmond v. Trammell (38 Tex. 873), 
 
 476. 
 Tibbals v. Afifand (10 Wash. 451), 348. 
 Tibbals v. Jacob (31 Conn. 438), 637. 
 Tibbetts v. Flanders (18 N. H. 384), 
 
 476. 
 Tibbetts v. Percy (24 Barb. 39), 323. 
 Tiffany v. Griggs (13 Johns. 353), 345. 
 Tillman v. Coosaw Min. Co. (45 Fed. 
 
 Rep.' 804), 183. 
 Tilton V. Cofield (98 U. S. 163), 114. 
 Tilton V. Emery (17 N. H. 536), 201. 
 Tilton V. Nelson (27 Barb. 595), 135. 
 Tilton V. Ormsby (70 N. Y. 609), 150. 
 Timlin v. Standard Oil Co. (136 N. Y. 
 
 514, 87 N. Y. State Rep. 906), 360. 
 Tinicum Fishing Co. v. Carter (61 Pa. 
 
 St. 31), 654. 
 Tipton V. State (30 Tex. Cr. App. 
 
 530), 37. 
 Tisdale v. Connecticut Mut. Life Ins. 
 
 Co. (26 Iowa, 170), 631. 
 Tigdale v. Delaware & Hudson C. R. 
 Co. (116 N. Y. 416, 4 N. Y. State 
 Rep. 812), 533. 
 Title V. State (30 Tex. App. 597), 357. 
 Titlow V. Titlow (54 Pa. St. 216), 635. 
 Tobin V. Fairport (13 N. Y. Supp. 324), 
 504. 
 
cxlviii 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Tobin, Matter of (40 N. Y. State Rep^ 
 
 366), 60a. 
 Tocci V. Arata (35 N. Y. State Rep. 
 
 43), 394. 
 Todd V. Eighmie (N. Y., 4 App. Div. 
 
 9), 371, 441. 
 Todd V. Vaughan (90 Hun, 70), 154, 
 
 165. 
 Tolbert v. Burke (89 Mich. 133), 87. 
 Toledo Electric Street R Co. v. Toledo 
 
 CoQst. Street R. Co. (36 Ohio L. J. 
 
 173), 376. 
 Tolland v. Sprague (12 Pet 300), 63. 
 Tolmie v. Thomson (3 Cranch, C. C. 
 
 133), 604. 
 Tombler v. Reitz (134 Ind. 9), 373. 
 Tome V. Gerloch (64 Hun, 635, 40 N. Y. 
 
 State Rep. 485), 617. 
 Tomlin v. Bass Furnace Co. (93 Ga. 
 
 594), 40. 
 Tomlinson v. Borst (30 N. Y. 43X 464. 
 Tooker v. Gormer (3 Hilt, N. Y., 71), 
 
 199. 
 Tool V. State (88 Ala. 158), 614. 
 Toole V. Nichol (43 Ala. 406, 419), 706. 
 ' Tooley v. Bacon (70 N. Y. 34), 163, 175. 
 Toomer v. Dadsden (4 Strobh., S. C, 
 
 193), 464. 
 Topeka v. Martineau (43 Kan. 387), 
 
 358. 
 Topham v. McGregor (1 C. & K 330), 
 
 700. 
 Toplitz V. Hedden (146 TJ. S. 352), 190. 
 Torbett v. Wilson (1 Stew. & Port. 
 
 200), 234. 
 Totten V. Read (33 N. Y. State Rep. 
 
 46, 16 Daly, 283), 413. 
 Totten V. United States (93 U. S. 105), 
 
 103. 
 Tottenham, Matter of (1896, 1 Ch. 
 
 638), 40. 
 Tourret v. Cripps (48 L. J. Ch. 567), 
 
 227. 
 Tourtellotte v. Brown (1 Colo. App. 
 
 408), 617, 705. 
 Touseley v. Board of Education (39 
 
 Minn. 419), 122. 
 Tousley v. Barry (16 N. Y. 497), 213. 
 Towboat V. Starrs (69 Pa St 36, 41), 
 
 573. 
 
 Tower v. Haslam (85 Mft 86), 132. 
 Towle V. Remson (70 N. Y; 3Q3)i 654. 
 Town of Cherokee v. S., C. & L F. 
 
 Town L. & L. Co. (53 Iowa, 279), 
 
 688. 
 Town of Essex v. New York & Can- 
 ada R. Co. (8 Hun, 361), 69. 
 Town of- Mentz v. Cook (108 N. Y. 
 
 504), 45, 70. 
 Towner v. Thompson (81 Ga. 171), 507. 
 Townsend v. Briggs (95 Cal. 87), 355. 
 Townsend v. Downer (43 Vt 183), 648. 
 Townsend v. Fotenot (43 La. Ann. 
 
 890), 118. 
 Tozer v. New York Central & H. E. 
 
 R. Co. (38 Hun, 100), 533. 
 Tracy v. State (46 Neb. 361), 257. 
 Tramiiiell v. Hemphill (37 Ga. 525), 
 
 476. 
 Trammell v. Hudniou (78 Ala. 232), 
 
 456. 
 Trammell v. McDade (39 Tex. 360),«96. 
 Transportation Line v. Hope (95 17. S. 
 
 391), 534. 
 Travelers' Ins. Co. v. Murray (16 Colo. 
 
 396), 360. 
 Travelers' Ins. Co. v. Sheppard:(85 Ga. 
 
 751), 531. 
 Traver v. Shaefle (38 Neb. 531), 41. 
 Travers v. Snyder (38 III. App. 379), 
 
 516. 
 Tread well v. Whittier (80 Cal. 574), 609. 
 Treanor v. Manhattan R Co. (41 N. Y. 
 
 State Rep. 614), 100. 
 Tredwell v. Graham (88 N. C. 208), 314. 
 Trelowney v.. Coleman (3 Stark. 191)^ 
 
 534, 563. 
 Triess v. Rider (34 N. Y. 367), 330. 
 Trimble v. Mims (92 Ga. 103), 160. 
 Trimble v. Stilwell (4 E. D. Smith, 
 
 513), 55, 68. 
 Trimbo v. Trimbo (47 Minn. 389), 626. 
 Trimmer v. Trimmer (90 N. Y. 675). 
 
 165. 
 Trogdon v. Trogdon (133 Mo. 483), 301. 
 Troy Fertilizer Co. v. Logan (90 Ala. 
 
 325), 554. 
 Truesdale v. Bourke (145 N. Y. 613), 40. 
 Truesdale Mfg. Co. v. Hoyle (39 III 
 
 App. 533), 539. 
 
TABLE OF CASES. 
 
 cxlix 
 
 Beferencea are to pages. 
 
 Truman v. Bishop (83 Iowa, 697), 311. 
 Trunkey v. Hedstrom (131 111. 204), 
 
 151, 173. 
 Truscott y. King (6 N. Y. 147), 45, 328. 
 Trustees, etc. v. O'Mailey (18 111. 407), 
 
 147. 
 Tryon v. White & C. Co. (63 Conn. 
 
 161), 495. 
 Tuck V. Nelson (63 N. H. 469), 151. 
 Tucker v. Conwell (67 111. 553), 133. 
 Tucker v. Donald (60 Miss. 460), 573. 
 Tucker v. Kellogg (8 Utah, 11), 573, 
 
 581. 
 Tucker v. Mass. Cent R R (118 Mass. 
 
 547), 526. 
 Tucker t. Smith (68 Tex. 473), 416. 
 Tucker v. State (71 Ala. 343), 106. 
 Tucker v. Wilkins (105 N. C. 373), 414. 
 Tufts V. Charlestown (4 Gray, 537), 
 
 304. 
 Tullis V. State (35 Fed. Rep. 374), 145. 
 Tumlin v. Bass Furnace Co. (93 Ga 
 
 594), 43. 
 Tunbvidge v. Read (32 N. Y. State Rep. 
 
 764), 66. 
 Tunstall v. Parish of Madison (30 La. 
 
 Ann. 471), 600. 
 Tunstall v. Withers (86 Va. 893), 154. 
 Turnbull v. Payne (95 U. S. 418, 422), 
 
 237. 
 Turner v. Boston & M. R Co. (158 
 
 Mass. 261), 692. 
 Turner v. Brown (6 Hun, 331), 399. 
 Turner v. City of Newburgh (109 N. Y. 
 
 301), 541. 
 Turner v. City of Newburgh (15 N. Y. 
 
 State Rep. 93), 717. 
 Turner v. Dewan (14 Q. B., U. C, 361), 
 
 456. 
 Turner v. Keller (66 N. Y. 66), 565. 
 Turner v. Luning (106 Cal. 134), 17. 
 Turner v. Fatten (48 Ala. 406), 190. 
 Turner v. Railton (1 Esp.' 474), 130. 
 Turner v. Ridgway Tp. (105 Mich. 409), 
 
 582. 
 Turner v. State (89 Tenn. 547), 452. 
 Turner v. State (60 Miss. 351), 106. 
 Turner v. State (5 Ohio C. C. 538), 554. 
 Turner v. United States (66 Fed. Rep. 
 
 287), 6. 
 
 Turner v. Warren (160 Pa. St. 336), 91. 
 Turner v. White (73 Cal. 299), 53. 
 Turner v. Yates (16 How., U. S., 14), 
 
 313, 347. 
 Turner, Matter of (29 Ch. D. 985), 
 
 439. 
 Turney v. Evans (14 N. H. 348), 201. 
 Turney v. State (3 Sm. & M. 104), 692, 
 
 697. 
 Turnier v. Lathers (59 Hun, 623), 606. 
 Turnipseed v. Hudson (50 Miss. 429), 
 
 123. 
 Turquand v. Knight (3 M. & W. 98), 
 
 91. 
 Turton v. New York Recorder Co. 
 
 (144 N. Y. 144). 13. 
 Tuscaloosa First Nat. Bank v. Ken- 
 nedy (91 Ala. 470), 601. 
 Tuskaloosa v. Wright (11 Ala. 230)^ 
 
 480. 
 Tuskaloosa Cotton Seed Oil Co. v. 
 
 Parry (85 Ala. 158), 66. 
 Tuttle V. Burgett (30 L. R A. 214, 53 
 
 Ohio St. 498), 296. 
 Tuttle V. Rainey (98 N. C. 513), 572. 
 Tuttle V. Russell (2 Day, 201), 24. 
 Tuttle V. Warner (38 Tex. 759), 308. 
 Tyler v. Defrees (11 Wall. 331), 116. 
 Tyler v. Hall (106 Mo. 313), 93. 
 Tyler v. O'Reilly (59 Hun, 618, 36 N. Y. 
 
 State Rep. 106), 385. 
 Tyler v. Tyler (136 111. 525), 91. 
 Tyler v. Ulmer (12 Mass. 163), 214. 
 Tyler v. Waddingham (58 Conn. 375), 
 
 308. 
 Tyler v. Willis (13 Abb. Pr., N. Y., 369, 
 
 35 Barb. 213), 116. 
 Tynan v. Weinhard (153 111. 598), lia 
 Tyres v. Kennedy (186 Ind. 533), 456, 
 
 513. 
 Tyson v. Booth (100 Mass. 358), 69. 
 
 u. 
 
 Ufford V. Spaulding (156 Mass. 65), 642. 
 Ullman v. Babcock (63 Tex. 68), 573. 
 Ulrich V. Ulrich (136 N. Y. 130, 39 
 
 N. Y. State Rep. 33), 600. 
 Unanast v. Goodyear Rubber Co. (141 
 
 Pa. St. 137), 530. 
 
cl 
 
 TABLE OP CASES. 
 
 Heferences are to pages. 
 
 Union Mut. Ins. Co. v. Wilkinson (13 
 
 Wall. 822, 231), 263. 
 Union Nat. Bank v. Barber (56 Iowa, 
 
 S.'iO), 364. 
 Union P. R. Co. v. Marston (30 Neb. 
 
 241), 611. 
 Union P. E. Co. v. Reese (46 Fed. Rep. 
 
 2S8), 31. 
 Uuion P. R. Co. v. Traube (59 Mo. 355), 
 
 115. 
 Union P. R. Co. v. Yates (79 Fed. Rep. ' 
 
 584), 478. 
 Unis V. Charlton's Adm'r (13 Gratt. 
 
 484), 34 
 United States v. Alexander (46 Fed. 
 
 Rep. 738), 403. 
 United States v. Arredondo (6 Pet. 
 
 71.5), 294. 
 United States v. Ash (75 Fed. Rep. 
 
 651), 191. 
 United States v. Babcock (3 Dill, 
 
 U. S., 576), 254. 
 United States v. Bank of Metropolis 
 
 (15 Pet. 877), 315. 
 United States v. Baxter (46 Fed. Rep. 
 
 350), 680. 
 United States v. Breed (1 Sumn. 159, 
 
 167), 564. 
 United States v. Brown (1 Sawy. 531), 
 
 83. 
 United States v. Burns (5 McLean, 
 
 23), 184 ' . 
 
 United States v. Cassidy (67 Fed. Rep. 
 
 698), 660. 
 United States v. Chandler (65 Fed. 
 
 Rep. 308), 660. 
 United States v. Charles (2 Cranch, 
 
 C. C. 76), 103. 
 United States v. Cheng Sam (47 Fed. 
 
 Rep. 878), 395. 
 United States v. Cross (20 Wash. L. 
 
 Rep., D. C, 98), 439. 
 United States v. Dashiel (3 Wall. 688), 
 
 370. 
 United States v, Douglass (3 Blatchf. 
 
 207), 216. 
 United States v. Hanway (2 Wall. Jr. 
 
 139), 386. 
 United States v. Hardyman (13 Pet. 
 
 176), 67. 
 
 United States v. Hayward (3 Gall. 
 
 485, 497), 340. 
 United States v. Heath (19 Wash. L. 
 
 Rep., D. C, 818), 454 
 United States v. Hinz (35 Fed. Rep. 
 
 373), 145. 
 United States v. Holmes (1 Cliff. 98, 
 
 104), 25. 
 United States v. Hollis (43 Fed. Rep. 
 
 248), 140. 
 United States v. Jackson (104 U. S. 
 
 41), 194 
 United States v. Jones (32 Fed. Rep. 
 
 569), 104 
 United States v. King (D. G, 20 Wash. 
 
 L. Rep. 505), 585. 
 United States v. Knott (1 McLean, 
 
 499), 216. 
 United States t. Macomb (o McLean, 
 
 386), 474, 475. 
 United States v. McCord (72 Fed. Eep. 
 
 159), 660. 
 United States v. Neverson (1 Mackey, 
 
 152), 25. 
 United States v. Newton (53 Fed. Eep. 
 
 275), 516. 
 United States v. Pacheco (2 Wall. 587, 
 
 590), 654 
 United States v. Palmer (3 Wheat 
 
 610), 184 
 United States v. Robson (9 Pet 819), 
 
 71. 
 United States v. Rodman (15 Pet 130, 
 
 137), 338. 
 United States t. Saunders (1 Humph., 
 
 Tenn., 483), 438. 
 United States v. Slinker (32 Fed. Eep. 
 
 691), 146. 
 United States v. Smallwood (5 Cranch, 
 
 535), 106. 
 United States v. Smith (5 Utah, 273), 
 
 379. 
 United States v. Snyder (31 Wash. L. 
 
 Rep., D. C, 45), 451, 491. 
 United States v. Stevens (4 Cranch, 
 
 C. C. 341), 35. 
 United States v. Van Leaven (65 Fed. 
 
 Rep. 78), 146. 
 United States v. Wallament V. & C. 
 
 M. Co. (43 Fed. Rep. 351), 194 
 
TABLE OF CASES. 
 
 cli 
 
 Beferences are to pages. 
 
 United States v. Weed (5 Wall. 63), 
 
 363. 
 United States v. White (5 Cranch, C. 
 
 C. 457), 34. 
 United States v. White (5 Cranch, 
 
 C. C. 38, 43), 34. 
 United States v. White (5 Cranch, 
 
 C. C. 73), 604. 
 United States v. Wiggins (14 Pet. 334, 
 
 346), 334, 238. 
 United States V. Wood (14 Pet. 430, 
 
 441), 384. 
 United States v. Wood (70 Fed. Rep. 
 
 485), 385. 
 United States v. Wood (3 Wash. C. C. 
 
 440), 475. 
 United States Bank v. Stearns (15 
 
 Wend. 314), 378. 
 United States Life Ins. Co. v. Kielgast 
 
 (36 111. App. 567), 315. 
 United States Nat. Bank v. First Nat. 
 
 Bank (49 U. S. App. 67, 79 Fed. 
 
 Rep. 396), 315. 
 United States S. R. Co. v. Providence 
 
 S. & G. Pipe Co. (18 U. S. App. 608), 
 
 580. 
 United States Vinegar Co. v. Schlugle 
 
 (143 N. Y. 537), 441. 
 Unruh v. Lukins (66 Pa. St. 324X 369. 
 Updyke v. Wheeler (37 Mo. App. 680), 
 
 497. 
 Upstone V. People (101 111. 169), 587. 
 Uransky v. Dry Dock. E. B. & B. R. 
 
 Co. (59 Hun, 636, 37 N. Y. State 
 
 Rep. 543), 543. 
 
 Vail V. Long Island R. Co. (106 N. Y. 
 
 283), 67. 
 Valentine's Will (93 Wis. 45), 167. 
 Valkenaud v. Drum (154 Pa. St. 616), 
 
 335. 
 Van Allen v. Gordon (83 Hun, 379), 99. 
 Van Arniinge v. Taylor (108 N. C. 
 
 196), 404. 
 Van Bokelein v. Berdell (130 N. Y. 
 
 141), 33. 
 Van Buren v. Swan (4 Allen, 380), 59. 
 Van Buskirk v. Mulock (3 Harr., N. J., 
 
 185), 338. 
 
 Van Buskirk v. Roberts (31 N. Y. 661), 
 
 324. 
 Vandenbergh v. Boston & Albany R. 
 
 Co. (N. Y., 31 N. Y. Weekly Dig. 
 
 474), 531. 
 Vanderlin v. Hovis (153 Pa. St. 11), 
 
 375. 
 Vanderpool v. Blake (88 Ind. 130), 599. 
 Van Deusen v. Sweet (51 N. Y. 378), 
 
 139. 
 Van Doran v. Liebman (34 N. Y. State 
 
 Rep. 753), 645. 
 Van Gent v. Chicago, M. & St. P. R. 
 
 Co. (80 Iowa, 526), 385, 548, 566. , 
 Van Gilder v. Van Gilder (81 N. Y. 
 
 635), 156. 
 Van Horn v. Van Horn (N. J. Err. & 
 
 App., 49 N. J. Eq. 837), 334. 
 Van Houten v. Morse (20 L. R A. 
 
 430, 163 Mass. 414), 385. 
 Van Patten v. Bedow (75 Iowa, 389), 
 
 47. 
 Van Rensselaer v. Gallup (5J)en. 454), 
 
 53. 
 Van Rensselaer v. Mould (48 Hun, 396, 
 
 15 N. Y. State Eep. 405), 680. 
 Van Rensselaer v. Shaffer (31 N. Y. 
 
 State Rep. 899, 131 N. Y. 713), 639. 
 Van Rensselaer v. Wright (131 N. Y. 
 
 623, 31 N. Y. State Rep. 897), 638. 
 Van Sachs v. Kretz (72 N. Y. 548), 
 
 248. 
 Van Sickle v. Gibson (40 Mich. 170), 
 
 438. 
 Van Slyke v. Chicago, St. P. & K. C. 
 
 R. Co. (80 Iowa, 620), 632. 
 Van Tuyl v. Van Tuyl (51 Barb. 385), 
 
 105. 
 Van Vechten v. Van Vechten (65 Hun, 
 
 215), 159. 
 Van Vleet v. Sledge (45 Fed. Rep. 743), 
 
 269, 309. 
 Van Winkle v. CrowoU (146 U. S. 43), 
 
 307. 
 Van Wycklen v. Brooklyn (118 N. Y. 
 424, 41 Alb. L. J. 178, 39 N. Y. 
 State Rep. 790), 530. 
 Van Wycklen v. Brooklyn (41 Hun, 
 
 418), 533. 
 Varner v. Rice (44 Ark. 336), 63. 
 Vass V. Com. (3 Leigh, 786), 453. 
 
clii 
 
 TABLE OF OASES. 
 
 Beferences are to pages. 
 
 Veazie v. Penobscot R R. Co. (49 Me. 
 
 119), 112. 
 Veell V. Charmer (23 Beav. 195), 390. 
 Venus, The (8 Cranch, 253), 396. 
 Vernon v. Valk (2 Hill, Ch. 257), 387. 
 Verplanck v. Van Buren (70 N. Y. 
 
 247), 117. 
 Vestal V. Knight (54 Ark. 97), 310. 
 Vi^ll V. Leavens (39 Hun, 291), 178. 
 Village V. Crawford (18 Neb. 551), 
 
 418. 
 Ville de Havre (7 Bin. 328), 622. 
 Vilmer v. Schall (61 N. Y. 564), 58. 
 Vilmer v. Schall (35 N. Y. Super. Ct 
 
 67), 466. 
 Vinal V. Oilman (21 W. Va. 301), 444. 
 Vinson v. Chicago, St P., M. & O. E. 
 
 Co. (47 Minn. 265), 610. 
 Vinton v. Peck (14 Mich. 287), 579. 
 Viscountess Stafford v. Llevt^ellin 
 
 (Skin. 78), 648. 
 Voisin V. Commercial Mut Ins. Co. 
 
 (51 N. Y. State Rep. 635, 67 Hun, 
 
 365), 469. 
 Volkening v. De Graaf (81 N. Y. 268), 
 
 67. 
 Volkmar v. Manhattan R Co. (134 
 
 N. Y. 418, 31 N. Y. State Rep. 
 
 172), 613. 
 Vollrath v. Crov? (9 Wash. 374), 285. 
 Von Giesen v. Von Giesen (10 N. Y. 
 
 316), 369. 
 Voorhees v. Olmstead (6 N. Y. Sup. Ct, 
 
 T. & C, 172, 3 Hun, 744, 66 N. Y. 
 
 113), 126. 
 Voorhees v. Voorhees (46 N. J. Eq. 
 
 411), 434. 
 Voorman v. King (36 N. Y. 477), 506. 
 Vorheea v. Dorn (51 Barb. 580), 246. 
 Vosburgh v. Huntington (15 Abb. Pr., 
 
 N. Y., 254), 124. 
 Vosburgh v. Lake Shore & M. S. R 
 
 Co. (14 N. Y. Weekly Dig. 514, 94 
 
 N. Y. 374), 533. 
 Vosburgh v. Thayer (12 Johns. 461), 
 
 464. 
 Vowles V. Miller (3 Taunt 137, 138), 
 
 655. 
 Vowles V. Young (13 Ves. 140, 147, 
 
 148), 432, 437. 
 
 w. 
 
 Wabash W. R Co. v. Morgan (181 
 
 Ind. 430),'586. 
 Wadd V. Hazelton (63 Hun, 602, 43 
 
 N. Y. State Rep. 686),- 92. 
 Waddill V. Sabree (88 Va. 1012), 322. 
 Wadsvvorth v. Heemaus (85 N. Y. 689), 
 
 177. 
 Waechtershauser v. Smith (31 N. T. 
 
 State Rep. 552), 278. 
 Wager v. Ide (14 Barb., N. Y, 468), 45. 
 Wagers v. Dickey (17 Ohio St 439), 
 
 476, 604. 
 Wagner v. Aulenbach (170 Pa. St 
 
 495), 515, 516. 
 Wagner v. Winter (122 Ind. 57), 10. 
 Wagner's Appeal (43 Pa. St 103), 892. 
 Wailing v. Toll (9 Johns. 141), 50. 
 Wainwright v. Talcott (60 Conn. 43), 
 
 335. 
 Waits v. Coaracy (45 Minn. 159), 628. 
 Wake V. Harrop (6 H. & N. 768, 775), 
 
 494. 
 Wakefield v. Rose (5 Mason, 16), 134. 
 Wakeman v. Sherman (9 N. Y. 85), 
 
 346. 
 Wakeman v. Wheeler & Wilson Mfg. 
 
 Co. (101 N. Y. 205), 532. 
 Walbridge v. Jones (33 Q. B., U. C, 
 
 613), 433. 
 Waldele v. N. Y. C. & H. R R Co. (19 
 
 Hun, 69). 455. 
 Waldele v. N. Y. C. & H. R R Co. (95 
 
 N. Y. 374), 486, 491, 495. 
 Waldridge v. Kennison (1 Esp. 143), 
 
 130. 
 Waldrof v. Greenwood L. & S. R Co. 
 
 (28 S. C. 157), 207. 
 Waldron v. Denison (11 Wend. 65), 249. 
 Waldron v. Tuttle (4 N. H. 371), 427. 
 Walker v. Allen (72 Ala. 456), 189. 
 Walker v. Caradine (78 Tex. 489), 655. 
 Walker v. Davis (33 Me. 516), 617. 
 Walker v. Dunsf augh (20 N. Y. 170), 
 
 698. 
 Walker v. Fields (38 Ga. 237), 556. 
 Walker v. Forbes (31 Ala. 9), 564. 
 Walker v. Hlrsoh (27 Ch. Civ. 460), 
 
 406. 
 
TABLE OB' OASES. 
 
 cliii 
 
 Beferences are to pages. 
 
 Walker v. Murray (5 Ont. Rep. 638), 
 
 433. 
 Walker v. Rogers, Ex'r (24 Md. 239, 
 
 242), 526, 571. 
 Walker v. State (68 Ala. 393), 587. 
 Walker v. State (107 Ala. 5), 384. 
 Walker V. State (34 Fla. 167), 144; 
 Walker v. State (37 Tex. 366, 386), 453. 
 Walker v. State (7 Tex. App. 345), 74. 
 Walker v. Steele (131 Ind. 436), 150, 
 
 173. 
 Walker v. Wadsworth (1 Fost. & Fin. 
 
 397), 71. 
 Walker v. Walker (34 Ala. 469), 557. 
 Walker v. Wells (25 Ga, 141), 371. 
 Walker v. Wilsher (23 Q. B. D. 335), 
 
 130. 
 Walker v. Wingfield (18 Ves. 511), 426. 
 Wall V. Delaware, L. & W. R. Co. (38 
 
 N. Y. State Rep. 133, 54 Hun, 454), 
 
 607. 
 Wallace v. Bernhelm (63 Ark. 108), 
 
 701. 
 Wallace v. Blake (80 N. Y. State Rep. 
 
 248, 138 N. Y. 676), 66. 
 Wallace v. Central Vermont R. Co. 
 
 (138 N. Y. 302, 53 N. Y. State Rep. 
 
 351), 386. 
 Wallace v. Cox (71 111. 518), 603. 
 Wallace v. First Parish (109 Mass. 264), 
 
 483. 
 Wallace v. Goodlet (93 Tenn. 598), 311. 
 Wallace v. Jecko (25 Mo. App. 313), 
 
 151, 
 Wallace v. Jones (93 Ga.419), 110,685. 
 Wallace v. Nodine (57 Hun, 339, 33 
 
 N. Y. State Rep. 657), 563. 
 Wallace v. Smith (M. & M. 446), 130. 
 Wallace v. Strauss (113 N. Y. 238), 150. 
 Wallace v. United States (162 U. S. 
 
 4.66), 561, 562, 669. 
 Wallace v. Vacuum Oil Co. (138 N. Y. 
 
 579), 540. 
 Wallach v. Com. F. Ins. Co. (13 Daly, 
 
 N. Y., 887), 63. 
 Walls V. Bailey (49 N. Y. 464), 276, 383, 
 
 391, 293. 
 Walls y. State (125 Ind. 400), 517. 
 Walls V. Walls (170 Pa. St 389), 639. 
 Wain V. Wain (53 N. J. L. 429), 800. 
 
 Walrod v. Ball (9 Barb. 371), 636. 
 Walsh V. Dart (12 Wis. 635), 641. 
 Walsh V. Marine Ins. Co. (33 N. Y. 
 
 437), 534. 
 Walsh V. Missouri P. R Co. (103 Mo. 
 
 589), 194, 546. 
 Walston V. Com. (16 B. Mon., Ky., 15), 
 
 453. 
 Walter v. Hoeflfner (51 Mo. App. 46), 
 
 705. 
 Walters v. Smith (23 111. 343), 130. 
 Walters v. Weaiherel (43 111. 389), 130. 
 Walthaur v. Gossar (32 Pa. St 259), 
 
 114. 
 Walton V. Agricultural Ins. Co. (116 
 
 N. Y. 317, 26 N. Y. State Rep. 
 
 780), 267. 
 Walton V. Follansbee (165 111. 480), 265. 
 Walton V. Hinnau (146 Pa. St 396), 
 
 156, 167. 
 Walton V. Tifft (14 Barb. 216), 653. 
 Walton County v. Powell (94 Ga. 646), 
 
 365. 
 Walz V. Albaok (37 Md. 404), 311. 
 Wamling v. Dufifey (14 Mont 567, 43 
 
 Am. St Rep. 658), 367. 
 Ward V. Boyce (153 N. Y. 191), 109, 
 
 113. 
 Ward V. Chicago, St P., M. & O. R. 
 
 Co. (85 Wis. 601), 547, 553. 
 Ward V. Cochran (71 Fed. Rep. 127), 
 
 457. 
 Ward V. Dean (56 Hun, 585, 33 N. Y. 
 
 State Rep. 270), 36. 
 Ward V. Doan (77 Mich. 328), 636. 
 Ward V. Kilpatrick (85 N. Y. 413, 39 
 
 Am. Rep. 674), 533. 
 Ward V. Mcintosh (13 Ohio St 231), 
 
 650. 
 Ward V. Metropolitan El. R. Co. (153 
 
 N. Y. 39), 623, 624 
 Ward V. People (8 Hill, 395), 73. 
 Ward V. State (8 Blackf. 101), 454. 
 Ward V. State (48 Ind. 390), 600. 
 Ward V. State (30 Tex. App. 687), 668. 
 Ward V. Ward (36 Ark. 586), 637. 
 Ward V. Ward (59 Conn. 188), 487. 
 Ward V. Ward (7.Exch. 838), 652. 
 Ward V. Ward (87 Mich. 253), 456. 
 Ward V. Wheeler (18 Tex. 249), 467. 
 
cliv 
 
 TABLE OF CASES. 
 
 Beferences are to pages. 
 
 Ware v. Allen (138 U. S. 580), 339. 
 Warener v. King's Mill (7 Q. B., U. C, 
 
 409), 234. 
 Warfolk v. State (85 Ga. 69), 704. 
 Waring v. United States Tel. Co. (44 
 
 How. Pr., N. Y., 69), 394. 
 Wark V. WiUard (13 N. H. 389), 137. 
 Warley v. Spurgeon (38 Iowa, 465), 
 
 844. 
 .Warner v. Clark (45 La. Ann. 897), 14. 
 Warner v. Henby (47 Pa. St 187), 
 
 646. 
 Warner v. Litzinger (45 Mo. App. 106), 
 
 621. 
 Warner v. Lucas (10 Ohio, 386), 731. 
 Warner V. New Orleans (167 U. S. 
 
 467), 122. 
 Warner v. Press Pub. Co. (133 N. Y. 
 
 ISO, 43 N. Y. State Rep. 633), 104. 
 Warren v. Anderson (8 Scott^ 384), 
 
 573. 
 Warren v. Fredricks (76 Tex. 647), 
 
 518. 
 Warren v. McGill (103 Cal. 153), 169. 
 Warren v. Nichols (6 Mete. 261), 476. 
 Warren v. Phoenix Ins. Co. (65 Hun, 
 
 621, 47 N. Y. State Rep. 431), 307. 
 Warter v. Warter (L. R. 15 P. D. 152), 
 
 635. 
 Washburn v. Milwaukee & L. W. R. 
 
 Co. (59 Wis. 364), 688. 
 Washburn v. National Accident Ass'n 
 
 (59 Hun, 585, 32 N. Y. State Rep. 
 
 34), 567. 
 Washburn v. People (10 Mich. 372), 
 
 136. 
 Washington v. Bedford (10 Lea, 
 
 Tenn., 246), 104. 
 Washington v. Hosp (43 Kan. 334), 
 
 614. 
 Washington & C. S. P. Co. v. Sickles 
 
 (34 How., U. S., 333), 119. 
 Washington & G. R. Co. v. Tobriner 
 
 (147 U. S. 571), 351. _ 
 Wasserman v. Willett (10 Abb. Pr., 
 
 N. Y., 63), 400. 
 Waterbury v. Dakota F. & M. Ins. 
 
 Co. (Dak., 40 Alb. L. J. 513), 360. 
 Waterbury v. Westervelt (9 N. Y. 598), 
 
 '374. 
 
 Waterman v. Chicago & A. R. Co, 
 
 (82 Wis. 613, 53 Am. & Eng. R. 
 
 Cas. 593), 610. 
 Waterman v. Shipman (47 N. Y. 
 
 State Rep. 418), 41. 
 Waters v. Gilbert (3 Gush. 27), 483. 
 Waters v. Waters (35 Md. 513, 543), 
 
 477, 536, 588. 
 Waters' Appeal (35 Pa. St. 523), 127. 
 Watkins v. Kirkpatrick (3 Dutch. 84), 
 
 313. 
 Watrous v. Cunningham (71 Cal. 30), 
 
 477. 
 Watson V. Brewster (1 Pa. St. 381), 
 
 433. . 
 Watson V. Leman (9 Colo. 300), 63. 
 Watson V. Minneapolis Street R. Co. 
 
 (53 Minn. 551), 547. 
 Watson V. Pinkney (46 N. Y. State 
 
 Rep. 245, 18 N. Y. Supp. 790), 
 
 601. 
 Watson V. Roode (27 Neb. 91), 224. 
 Watson V. Walker (23 N. H. 471, 496), 
 
 334, 238. 
 Watts V. Warren (108 N. C. 514), 156, 
 
 176. 
 Waugh V. Fielding (48 N. Y. 681), 558. 
 Waughop V. Bartlett (165 111. 124), 347. , 
 Wau-Kon-Chaw-Neek-Kaw v. United 
 
 States (1 Morris, Iowa, 333, 337), 31. 
 Wausau Boom Co. v. Dunbar (75 Wis. 
 
 133), 285. 
 Wax's Estate, Re (106 Cal. 343), 87, 92. 
 Way V. Butterworth (106 Mass. 75), 
 
 103. 
 Way V. Butterworth (108 Mass. 512), 
 
 313. 
 Wayne v. Stewart (68 Iowa, 13), 62. 
 W. B. Grimes & G. Co. v. Malcolm 
 
 (164 U. S. 483), 508. 
 Weaver v. Bardeu (49 N. Y. 386), 44. 
 Weaver v. Wood (36 N. Y. C07), 254. 
 Weaver's Appeal (63 Pa. St. 309), 3S8. 
 Webb V. Hazelton (4 Neb. 308), 364. 
 Webb V. Lees (149 Pa. St. 13), 638. 
 Webber v. Corbett (L. R. 16 Eq. 515), 
 
 391. 
 Webber v. Dunn (71 Me. 331, 340), 139. 
 Webber v. Hoag (55 Hun, 605, 28 
 
 N. Y. State Rep. 630), 485. 
 
.TABLE OF OASES. 
 
 cIt 
 
 Beferencea are to pages. 
 
 Webber v. Kingland (8 Bosw. 415), 
 
 283. 
 Webber Wagon Co. v. Kehl (139 111. 
 
 644), 549. 
 Webster v. Atkinson (4 N. H. 31), 
 
 381. 
 Webster v. Calden (55 Me. 165, 171), 
 
 335. 
 Webster v. Elmira, C. & N. E. Co. (85 
 
 Hun, 167), 349. 
 Webster v. La Compte (74 Md. 249), 
 
 559. 
 Weed V. Kellogg (6 McLean, 44), 213. 
 Weed V. London & L. F. Ins. Co. (116 
 
 N. Y. 106, 36 N. Y. State Rep. 
 
 414), 375, 391. 
 Weed V. Panama R. Co. (17 N. Y. 363), 
 
 380. 
 Weeks V. Barron (38 Vt. 420), 208. 
 Weeks v. Lyon (18 Barb. 530), 241. 
 Weeks v. Sparke (1 M. & S. 679, 689), 
 
 9, 418, 430. 
 Wegener v. Butler (57 N. Y. State 
 
 Rep. 479), 807. 
 Weigand v. Sichel (4 Abb. Ct App. 
 
 Dec. 592), 59. 
 Weinberg v. Kran (44 N. Y. State 
 
 Rep. 136), 7. 
 Weiss V. Edgerton School Board (Wis., 
 
 41 Alb. J. L. 453), 187. 
 Weistein v. Reid (25 Mo. App. 41), 89. 
 Welch V. Abbott (72 Wis. 513), 34. 
 Welch V. Old Dominion Min. & R. Co. 
 
 (56 Hun, 650, 31 N. Y. State Rep. 
 
 916), 376. 
 Welch V. Tribune Pub. Co. (83 Mich. 
 
 661), 12. 
 Welcome v. Batchelder (33 Me. 85, 88), 
 
 84, 477. 
 Weld V. Brooks (152 Mass. 297), 425. 
 Weldon v. Third Ava R. Co. (3 App. 
 
 Div. 370), 701. 
 Welland Canal Co. v. Hathaway (8 
 
 Wend. 480), 378. 
 Wellman v. Chicago & L R Co. (83 
 
 Mich. 593), 189. 
 Wells V. Brigham (6 Cush. 6), 314. 
 Wells V. Eastman (61 N. H. 507), 548. 
 Wells V. Iron Co. (48 N. H. 491, 540), 
 
 698. 
 Wells V. Jackson (6 Black, 40), 313. 
 
 Wells V. Jackson, etc. Co. (47 N. H. 
 
 235), 186. 
 Wells V. Kelsey (37 N. Y. 143), 686. 
 Wells V. Missouri P. R. Co. (110 Mo. 
 
 286), 183. 
 Welsh V. Argyle (85 Wis. 307), 351. 
 Welsh V. Barrett (15 Mass. 380), 468. 
 Welsh V. Ebersole (15 W. Va. 651), 311. 
 Welsh V. Erie & W. V. R. Co. (181 Pa. 
 
 St. 461), 349. 
 Welsh V. Sage (47 N. Y. 147), 363. 
 Wendell v. Abbott (451^. H. 349), 416. 
 Wendell v. Blanchard (3 N. H. 456), 
 
 650. 
 Wendell v. Van Rensselaer (1 Johns. 
 
 Ch. 344), 125. 
 Wendover v. Baker (121 Mo. 273), 173. 
 Wentworth v. Wentworth (71 Me. 72, 
 
 83), 638, 629. 
 Werner v. Brooklyn Li R. Co. (11 App. 
 
 Div. 86), 478. 
 Werner v. Graley (54 Kan. 383), 441. 
 Wescott V. Brown (13 Ind. 83), 111, 
 
 117. 
 Wescott V. Keeler (4 Bosw. 564), 371. 
 Wesson v. Wash. Iron Co. (13 Allen, 
 
 95), 485. 
 West V. Amer. Exch. Bank (44 Barb., 
 
 N. Y, 175), 64. 
 West V. Cameron (39 Kan. 736), 67. 
 West V. Davis (7 East, 362), 335. 
 West V. Norwich U. F. Ins. Co. (10 
 
 Utah, 443), 40, 52. 
 West V. State (76 Ala. 898), 455. 
 West V. State (22 N. J. L. 312), 573. 
 West V. State (7 Tex. App. 150), 451. 
 West V. Van Tuyl (119 N. Y. 633, 28 
 
 N. Y. State Rep. 549), 465. 
 Westbrook v. Howell (34 111. App. 571), 
 
 266. 
 Westchester, etc. R. R. Co. v. McEl- 
 
 wee (67 Pa. St. 311), 204. 
 West Chicago St. R. Co. v. Kennedy, 
 
 Cahill (165 111. 496), 587. 
 Western Assur, Co. v. The Sarah J. 
 
 Weed (40 Fed. Rep. 844), 609. 
 Western Ins. Co. v. Broughton (136 
 
 111. 317), 713. 
 Western Mineral Wool & L F. Co. v. 
 
 Globe Mineral Wool Co. (77 Off. 
 
 Gaz. 1127, 75 Fed. Rep. 400), 191. 
 
clvi 
 
 TABLE OF OASES. 
 
 Eeferences are to pages. 
 
 Western Nat. Bank v. Wood (46 N. Y. 
 
 State Rep. 649), 311. 
 Western Union Tel. Co. v. Adams (75 
 
 Tex. 531), 560, 563. 
 Western Union Tel. Co. v. Bates (93 
 
 Ga. 853), 244, 248. 
 Western Union Tel. Co. v. Henderson 
 
 (89 Ala. 510), 500. 
 Western Union Tel. Co. v. Lydon (83 
 
 Tex. 364), 496. 
 Western Union Tel. Co. v. State, Nel- 
 son (83 Md. 293, 31 L. E. A. 572), 
 
 350, 
 Western Union Tel. Co. v. Thorn (64 
 
 Fed. Rep. 287), 17. 
 Western Wool Co. v. Hart (Tex., 20 
 
 S. W. Rep. 130), 478. 
 Western & A. R. Co. v. Vandever (Ga., 
 
 11 S. E. Rep. 781), 607. 
 Westervelt v. Aokley (63 N. Y, 505), 
 
 59, 60. 
 Westfield v. Warren (8 N. J. L. 249), 
 
 433. 
 West Md. R Co. v. Manro (22 Md. 280), 
 
 456. 
 Westmore v. Sheffield (56 Vt 239), 588. 
 Weston V. Sampson (8 Cush..347), 654 
 Westover v. ^tna Life Ins. Co. (99 
 
 N. Y. 56), 97. 
 West Pub. Co. V. Lawyers' Co-op. (35 
 
 L. R A. 400, 49 Fed. Rep. 756), 192. 
 Wetherill v. Stillman (65 Pa. St 105), 
 
 111. 
 Wetmore v. Peck (19 Alb. L. J. 400), 
 
 160. 
 Whaley v. Bartlett (43 S. C. 454), 851. 
 Whalin v. White (35 N. Y. 463, 468), 
 
 130. 
 Wheeler v. Adderson (3 Hagg. Eccl. 
 
 R 574, 604, 605), 526. 
 Wheeler v. Billings (38 N. Y. 363), 45, 
 
 68. 
 Wheeler v. Hambright (9 Serg. & R 
 
 896), 313. 
 Wheeler v. Kuntz (9 N. Y. State Rep. 
 
 496), 156. 
 Wheeler v. Lawson (108 N. Y. 45), 43. 
 Wheeler v. Le Marohant (17 Ch. D. 
 
 675), 91. 
 Wheeler v. Newbould (5 Duer, 29), 
 
 390. 
 
 Wheeler v. Oceanic Steam Nav. Co. 
 
 (125 N. Y. 155, 43 Alb. L J. 139), 
 
 613. 
 Wheeler v. Smith (18 Wis. 651), 467. 
 Wheeler v. Walker (45 N. H. '355), 480. 
 Wheelook v. Noonan (108 N. Y. 179), 
 
 70. 
 Wheelwright y. Walsh (43 Fed. Rep. 
 
 863), 860. 
 Whelan v. Lynch (60 N. Y. 469), 685. 
 Whetmore v. Peck (19 Alb. L. J. 400), 
 
 179. 
 Whilden v. Merchants' Bank (64 Ala. 
 
 1), 254, 635. 
 Whilton V. State (37 Miss. 379), 598. 
 Whipp V. State (34 Ohio St 87), 106. 
 Whitaker v. Eighth Ave. R Co. (51 
 
 N. Y. 295), 495, 496. 
 Whitaker v. Marsh (63 N. H. 477), 
 
 475. 
 Whitaker v. Salisbury (15 Pick. 543), 
 
 37, 336. 
 Whitbeck v. N. Y. Cent R R Co. (36 
 
 Barb. 644), 685. 
 Whitcher v. McLaughlin (115 Mass. 
 
 167), 433. 
 Whitcher v. Morey (39 Vt 459), 477. 
 White V. Ashton (51 N. Y. 280), 132, 
 
 137. 
 White V. Bailey (10 Mich. 155), 572. 
 White V. Benjamin (150 N. Y. 358), 
 
 468. 
 White V. Benjamin (138 N. Y. 633, 53 
 
 N. Y. State Rep. 151), 363, 368. 
 White V. Benjamin (33 N. Y. Supp. 
 
 981), 853. 
 White V. Chicago, M. & St P. R Co. 
 
 (S. D., 47 N. W. Rep. 146), 613. 
 White V. Chouteau (10 Barb. 303), 459. 
 White V. Classby (101 Mo. 163), 601, 
 White V. Gushing (88 Me. 839, 33 L. 
 
 R A. 590), 191. 
 White V. Davis (63 Hun, 633, 43 N. Y 
 
 State Rep. 901), 540, 554. 
 White V. Foljarabe (11 Yes. 350), 647. 
 White V. Foote (90 Wis. 335), 47. 
 White V. Hutchins (40 Ala. 353), 447. 
 White V. Johnson (4 Wash. 113), 620. 
 White V. »foy (13 N. Y. 83), 58. 
 White V. Long (34 Pick. 319), 450. 
 White V. Mann (36 Me. 363), 630. 
 
TABLE OF CASES. 
 
 clvii 
 
 Beferencea are to pages. 
 
 White V. Rankin (90 Ala. 541), 193. 
 White V. Soto (82 Cal. 654), 66. 
 White V. Spencer (14 N. Y. 247), 71. 
 White V. State (86 Ala. 69), 92. 
 White V. State (87 Ala. 24), 699. 
 White V. State (111 Ala. 93), 451, 713. 
 White V. State (70 Miss. 253), 666. 
 White V. State (30 Tex. App. 653), 452. 
 White V. Toliver (110 Ala. 300), 573. 
 White V. United States (164 U. S. 100), 
 
 440. 
 White V. Van Horn (159 U. S. 48), 583. 
 White V. Van Horn (159 U. S. 173), 6. 
 White V. Van Kirk (35 Barb. 16), 819, 
 
 330. 
 White V. White (83 Cal. 427, 7 L. R. 
 
 A. 799), 35, 434, 621. 
 White V. Whitney (83 Cal. 163), 465. 
 Whitehead v. Smith (81 N. Y. 151), 154. 
 Whitehouse v. Beckford (9 Fost 471, 
 
 480 J, 234, 239. 
 Whitelocke v. Baker (13 Ves. 514), 422, 
 
 433. 
 Whitelocke v. Musgrove (1 C. & M. 
 
 511, 522), 229, 231, 232. 
 Whitely v. Clark (29 111. App. 36), 3G0. 
 Whitely v. Equitable Society (73 Wis. 
 
 170), 628. 
 Whitely v. State (38 Ga. 50, 70), 453. 
 Whitemore v. BiscofiE (5 Hun, 126), 536. 
 White's Bank v. Myles (78 N. Y. 885), 
 
 299. 
 Whiteside v. United States (93 U. a 
 
 247), 404. 
 Whiting V. Barney (30 N. Y. 330, 88 
 
 Barb. 393), 85. 
 Whiting V. Mississippi Mut Ins. Co. 
 
 (76 Wis. 593), 680. 
 Whiting V. Nichol (46 111. ?30), 396, 628. 
 Whitlock, Re (51 Hun, 351, 21 N. Y. 
 
 - State Rep. 719), 89. 
 Whitman v. Foley (26 N. Y. State Rep. 
 
 133), 154. 
 Whitman v. Foley (125 N. Y. 657, 36 
 
 N. Y. State Rep. 878), 172. 
 Whitman v. Henneberry (78 111. 109), 
 
 446. 
 Whitman v. State (80 Md. 410), 193. 
 Whitmark v. New York El. R. Co. 
 
 (149 N. Y. 398), 12, 688. 
 
 Whitmarsh v. George (8 B. & C. 556), 
 
 311. 
 Whitney v. Boardman (118 Mass. 242), 
 
 564. 
 Whitney v. Darkin (48 Cal. 462), 486. 
 Whitney v. Ferris (10 Johns. 66), 202, 
 
 314. 
 Whitney v. Fox (166 U. S. 637), 155, 
 
 163. 
 Whitney v. Short (149 Pa. St. 29), 590, 
 
 593. 
 Whitney v. Thacher (117 Mass. 523), 
 
 685. 
 Whitney v. United States (167 U. S. 
 
 529), 192. 
 Whitsel V. Hiney (62 Ind. 168), 358. 
 Whyte V. Whyte (7 Moak's Eng. Rep. 
 
 673), 394. 
 Whyton v. Snyder (88 N. Y. 299), 540. 
 Wiber v. Flood (16 Mich. 40), 707. 
 Wiborg V. United States (163 U. S. 
 
 632), 515, 516. 
 Wichita U. of R C. in U. S. v. Schwei- 
 
 ter (50 Kan. 673), 337. 
 Wickershara v. Johnson (104 Cal. 407), 
 
 641. 
 Wickett V. Cicero (153 III. 575), 110. 
 Wickham v. Terhune (54 Hun, 639, 38 
 
 N. Y. State Rep. 350), 360. 
 Wicks V. State (28 Tex. App. 448), 
 
 514. 
 Wickwire v. State (19 Conn. 477), 844. 
 Widdefield v. Widdefleld (32 Pa. St. 
 
 92), 407. 
 Wiedekind v. Tuolumne County 
 
 Water Co. (83 Cal. 198), 544. 
 Wiggins V. Barkham (10 Wall. 139), 
 
 135. 
 Wiggins V. McCleary (49 N. Y. 346), 
 
 653. 
 Wilber v. Selden (6 Cow. 162), 475, 476. 
 Wilbur V. Stoepel (83 Mich. 344), 381, 
 
 296. 
 Wilburn v. State (60 Ark. 141), 248. 
 Wilcher v. Robertson (78 Va. 616), 117. 
 Wilcox V. Corwin (117 N. Y. 500, 37 
 
 N. Y. State Rep. 836), 147, 149, 155, 
 
 173, 174. 
 Wilcox V. Dodge (26 N. Y. State Rep. 
 
 173), 153. 
 
■clviii 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Wilcox V. Joslyn (32 N. Y. State Rep. 
 
 423), 558. 
 Wilcox V. Smith (5 Wend. 231), 404, 
 
 614. 
 Wilcox V. -Wilcox (43 Bai-b. 327), 615. 
 Wilder v. Colby (134 Mass. 377), 44. 
 Wilder v. De Cou (36 Minn. 10), 564 
 Wilds V. Atlie (4 Del. Ch. 253), 133. 
 Wiley V. Athol (150 Mass. 426), 479, 
 
 485. 
 Wiley V. California H. Co. (96 Cal. 
 
 1 18), 265. 
 Wilheim v. Leonard (13 Iowa, 330), 
 
 706. 
 Wilkes V. Dinsman (7 How., U. S., 
 
 130), 405. 
 Wilkes V. Heaton (17 Q. B., U. C, 95), 
 
 714. 
 Wilkins v. Dingley (29 Me. 73), 113. 
 Wilkins v. Earle (44 N. Y. 173), 607, 
 
 62.5. 
 Wilkins v. English (34 Hun, 32), 161. 
 Wilkins v. State (98 Ala. 1), 667. 
 Wilkins v. Stedger (22 Cal. 231), 213. 
 Wilkins v. Tourtellott (42 Kan. 176), 
 
 614. 
 Wilkinson v. Proud (11 M. & W. 33), 
 
 648. 
 Willet V. People (27 Hun, 469), 217. 
 Willetts V. Mandlebaum (38 Mich. 
 
 531), 446. 
 Williams v. Allen (7 Cow. 316), 71. 
 Williams v. Bridges (2 Star. 42), 212. 
 Willi.nms v. Brown (28 Ohio St. 547), 
 
 556. 
 Williams v. Cheney (3 Gray, 320), 877. 
 Williams v. Clark (47 Minn. 53). 584. 
 Williams v. Cleveland, C, C. & St. L. 
 
 R. Co. (102 Mich. 537), 55. 
 Williams v. Conger (125 U. S. 397), 
 
 446, 619. 
 Williams v. Dickerson (28 Fla. 90), 
 
 516. 
 Williams v. Donnell (2 Head, Tenn., 
 
 695), 648. 
 Williams v. Edwards (94 Mo. 447), 209. 
 Williams v. Eytou (4 H. & N. 357), 647. 
 Williams v. Geaves (8 C. & P. 593), 
 
 458. 
 Williams v. Gillies (75 N. Y. 197), 267. 
 
 Williams v. Hayes (73 N. Y. State 
 
 Rep. 382, 143 N. Y. 443), 248. 
 Williams v. Hutchinson (3 N. Y. 313), 
 
 615. 
 Williams v. Jackson (28 Ind. 384), 123. 
 Williams v. Lee (47 Md. 321), 588. 
 Williams v. Lewis (131 Ind. 344), 118. 
 Williams v. Macatee (86 W. Va. 681), 
 
 322. 
 Williams v. McKee (98 Tenn. 139), 395. 
 Williams v. Mower (29 S. 0. 332), 456. 
 Williams v. Mower (35 S. C. 206), 176. 
 Williams v. People (121 111. 84), 361. 
 Williams v. People (24 N. Y. 407), 182. 
 Williams v. Riches (77 Wis. 569), 580. 
 Williams v. State (47 Ark. 330), 560. 
 Williams v. State (54 Ark. 17), 305. 
 Williams v. State (19 Ga. 402). 474, 476. 
 Williams v. State (73 Miss. 820), 703. 
 Williams v. State (16 S. W. Rep., Ark., 
 
 816), 583. 
 Williams v. State (32 Tex. App 497), 
 
 204. 
 Williams v. Spencer (150 Mass. 346), 
 
 556, 557. 
 Williams v. Tilt (36 N. Y. 319), 51. 
 Williams v. Wager (64 Vt. 326), 469. 
 Williams v. Wilkes (3 Harris, 228), 331. 
 Williams v. Williams (1 Hagg. C. R. 
 
 399, 300), 661. 
 Williams v.' Williams (82 Mich. 449), 
 
 081. 
 Williams' Will, Re (64 Hun, 163, 46 
 
 N. Y. State Rep. 791), 201, 211. 
 Williard v. Pinard (65 Vt. 160), 369. 
 Willis V. Byars (3 Tex. Civ. App. 134), 
 
 265. 
 Willis V. Quimby (31 N. H. 485, 490), 
 
 697. 
 Willis V. Rector (50 Fed. Rep 684), 
 
 407. 
 Willman v. Worrall (8 C. & P. 380), 
 
 57.8. 
 Will M. Kennard Co. v. Cutter Power 
 
 Co. (159 Mass. 391), 307. 
 Wills V. Higgins (133 N. Y. 459, 44 
 
 N. Y. State Rep. 608), 11. 
 Wills V. Leverich (20 Oreg. 168), 281. 
 Wilmer v. Israel (1 Browne, Pa., 357), 
 
 463. 
 
TABLE OF CASES. 
 
 clix 
 
 Seferences are to pages. 
 
 Wilmington v. Burlington (4 Pick. 
 
 174), 433. 
 Wilson ST. Albert (89 Mo. 537), 456. 
 Wilson V. Allen (1 Jac. & W. 611), 
 
 647. 
 Wilson V. Anderton (1 B. & Ad. 450), 
 
 131. 
 Wilson V. Beauchamp (50 Miss. 24), 
 
 888. 
 Wilson Y. Betts (4 Denio, 201), 446, 
 
 572. 
 Wilson V. California C. R Co. (94 Cal. 
 
 166), 611. 
 Wilson V. Castro (31 Cal. 420), 123. 
 Wilson V. Clancy (6 App. Div. 499), 
 
 87. 
 Wilson V. Clark (1 Ind. App. 182), 559. 
 Wilson V. Clark (20 Minn. 367), 56. 
 Wilson V. Coleman (81 Ga. 397), 521. 
 Wilson V. Dean (74 N. Y. 581), 265, 
 
 335. 
 Wilson V. Doran (110 N. Y. 101), 62. 
 Wilson V. Glenn (68 Ala. 383), 646. 
 Wilson V. Granby (47 Conn. 29), 501. 
 Wilson V. Hotchkiss (81 Mich. 172), 
 
 644 
 Wilson V. Lowe (7 N. Y. State Rep. 
 
 672), 156. 
 Wilson V. McCuUough (23 Pa. St 440), 
 
 697. 
 Wilson V. Mitchell (3 Camp. 393), 434. 
 Wilson V. Morris (94 Tenn. 547), 600. 
 Wilson V. Reynolds (98 N. Y. 640), 154. 
 Wilson V. Russell (61 N. H. 354), 150, 
 
 171. 
 Wilson V. Simpson (80 Tex. 379), 446, 
 
 456, 513. 
 Wilson V. Smith (61 Cal. 209), 56. 
 Wilson T. Southern Pacific Co. (13 
 
 Utah, 352), 484. 
 Wilson V. Spring (64 111. 18), 218. 
 Wilson V. State (30 Fla. 234), 669. 
 Wilson V. State (54 Ind. 553), 187. 
 Wilson V. Town of SpaflEord (32 N. Y. 
 
 State Rep. 532, 57 Hun, 589), 15. 
 Wilson V. Troup (7 Johns. Ch. 25), 89. 
 Wilson V. United States (163 U. S. 
 
 613), 357, 670, 673. 
 Wilson V. Wilson (1 Halst. 95), 465. 
 Wilson V. Wilson (80 Mich. 472), 153, 
 
 153. 
 
 Wilson V. Wilson (36 Greg. 351), 311. 
 Wilton V. Webster (7 C. & P. 198), 563. 
 Wiltshire v. Sidford (8 B. & C. 359, n.), 
 
 655. 
 Wiltsie V. Wiltsle (17 N. Y. State Rep. 
 
 358), 153. 
 Wimbish v. State (89 Ga. 294), 574. 
 Wimple V. McManus (39 N. Y. State 
 
 Rep. 141), 44. 
 Winans v. Winans (19 N. J. 220), 341. 
 Winchart v. State (6 Ind. 30), 598. 
 Winchell v. Edwards (57 111. 41), 304. 
 Winchell v. Latham (6 Cow. 682), 709. 
 Winchell v. National Ex. Co. (64 Vt. 
 
 15), 11, 15. 
 Windhaus v. Booty (92 Cal. 617), 624, 
 
 625, 627. 
 Winer v. Smith (22 Greg. 469). 622. 
 Wing V, Bliss (55 Hun, 603), 179. 
 Wing V. Bliss (28 N. Y. State Rep. 
 
 198), 159, 167, 179. 
 Wing V. Ford (89 Me. 140), 618. 
 Winkely v. Kanne (33 N. H. 268), 650. 
 Winne v. Patterson (9 Pet. 668), 239, 
 
 447. 
 Winner v. Lathrop (67 Hun, 511, 51 
 
 N. Y. State Rep. 258), 259, 703. 
 Winship v. Conner (42 N. H. 841), 628, 
 
 629. 
 Winter v. Central Iowa R. Co. (80 
 
 Iowa, 448), 566, 587. 
 Winter v. Meeker (25 Conn. 456), 83. 
 Winter v. Truax (87 Mich. 824, 24 Am. 
 
 St. Rep. 160), 620. 
 Winterbottom v. Lord Derby (L R. 2 
 
 Ex. 816), 651. 
 Winterfield v. Second Ave. R.Co., 66 
 
 Hun, 637, 49 N. Y. State Rep. 485), 
 
 350. 
 Wintringham v. Hayes (144 N. Y. 1), 
 
 547. 
 Wisohstadt v. Wischstadt (47 Minn. 
 
 358), 37. 
 Wise V. Foote (81 Ky. 10), 587. 
 Wise V. Grant (59 Hun, 466, 37 N. Y. 
 
 State Rep. 39), 498. 
 Wiseman v. Northern P. R. Co. (20 
 
 Greg. 425, 33 Am. St. Rep. 135). 
 
 334 
 Wisner v. Ocumpaugh (71 N. Y. 113), 
 
 48, 49. 
 
clx 
 
 TABLE OF CASES. 
 
 References are to pages. 
 
 Witascheck V. Glass (46 Mo. App. 309), 
 
 195. 
 Withee v. Rowe (45 Me. 571, 589), 526. 
 Witte V. Williams (8 S. C. 290), 363. 
 Witthaus V. Schaak (105 N. Y. 333), 
 
 150. 
 Wolcott V. Smith (81 Mass. 537), 69. 
 Wolf V. Arthur (113 N. C. 691), 557. 
 Wolf V. Benedict (65 Hun, 624, 48 
 
 N. Y. State Eep. 195), 495. 
 Wolf V. Mathews (39 Mo. App. 376), 
 
 240. 
 Wolf V. Ferryman (82 Tex. 13), 36. 
 Wolfe V. Goulard (15 Abb. Pr., N. Y., 
 
 336), 77. 
 Wolfe V. Lynch (3 Dem., N. Y., 610), 
 
 154. 
 Wolfe V. Underwood (98 Ala. 375), 
 
 345. 
 Womack v. Dearman (7' Port 513), 
 
 234, 239. 
 Wood V. Ambler (8 N. Y. 170), 469. 
 Wood V. Carl (4 Mete. 303), 648. 
 Wood V. Chetwood (21 N. J. Eq. 311), 
 
 105. 
 Wood V. Durham (21 Q. B. D. 501), 22. 
 Wood V. Fisk (63 N. H. 173), 51.3. 
 Wood V. Fox (166 U. S. 648), 163. 
 Wood V. Hickok (2 Wend. 501), 288. 
 Wood V. Jackson (8 Wend. 9), 47. 
 Wood V. Jefferson County Bank (9 
 
 Cow. 194), 480, 481. 
 Wood V. Keyes (14 Allen, 336), 476. 
 Wood V. Mathews (73 Mo. 477), 313. 
 Wood V. Mayor, etc. (73 N. Y. 556), 109. 
 Wood y. McGuire (17 Ga. 303, 318), 
 
 714. 
 Wood V. Morehouse (45 N. Y. 368), 363. 
 Wood V. Pennell (51 Md. 53), 126. 
 Wood V. State (3 Mo. 98), 82, 
 Wood T. State (46 Neb. 58), 713. 
 Wood V. Steamboat, Fleetwood (19 
 
 Mo. 529), 63. 
 Wood V. Veal (5 B. & A. 454), 651. 
 Wood V. Whiting (21 Barb., N. Y., 
 
 190), 64. 
 Wood V. Williard (36 Vt 83), 448. 
 Wood V. Williard (37 Vt. 372), 449. 
 Wood V. Wood (25 S. C. 600), 171. 
 Wood, Matter of (33 N.' Y. State Rep. 
 
 286), 635. 
 
 Wood's Will, Re (33 N. Y. State Eep. 
 
 286), 644. 
 Woodbeck v. Keller (6 Cow. 118), 384. 
 Woodbridge v. Pratt & W. Co. (69 
 
 Conn. 304), 483. 
 Woodbury v. District (5 Mackey, 127)y 
 
 706. 
 Woodrick v. Woodrick (141 N. Y. 457), 
 
 105. 
 Wood River Bank v. Kelley (29 Neb. 
 
 590), 33. 
 Woodruff V. Cook (35 Barb. 505), 507. 
 Woodruff V. State (61 Ark. 157), 475, 
 
 699. 
 Woods V. Bonner (89 Term. 411), 446. 
 Woods V. Gevecke (28 Iowa, 561), 199. 
 Woods V. Gledhill (56 Hun, 220), 105. 
 Woods V. Wilder (43 N, Y. 164), 185. 
 Woods V. Wilson (37 Pa. St 884), 126. 
 Woodstock Iron Co. v. Roberts (87 
 
 Ala. 436), 564, 565, 588. 
 Woodsum V. Cole (69 Cal. 143), 46. 
 Woodward v. Harbin (1 Ala. 104), 124. 
 Woodward v. Paine (15 Johns. 493), 
 
 413. 
 Woolensagle v. Runneto (76 Miob. 
 
 545), 475. 
 Woolery v. Woolery (29 Md. 249, 253), 
 
 269, 388. 
 Woolheather v. Risley (38 Iowa, 486), 
 
 344. 
 Woolsey v. EUenville (84 Hun, 236), 18. 
 Woolway v. Rowe (1 A. & E. 114). 9, 
 
 418. 
 Woolworth V. McPherson (55 Fed. 
 
 Rep. 558), 336. 
 Wooten V. Wilkens (39 Ga. 223), 455. 
 Worcester Coal Co. v. Utley (167 
 
 Mass. 538), 557, 558, 560. 
 Worcester Co. Bank v. Dorchester 
 
 Bank (11 Cush. 488), 364. 
 Worden v. Salter (90 111. 160), 311. 
 Work V. Beach (58 Hun, 7, 37 N. Y. 
 
 State Rep. 547), 396, 343. 
 Work V. Beach (59 Hun, 625, 37 N. Y. 
 
 State Eep. 547), 308. 
 Work V. McCoy (87 Iowa, 217), 213. 
 Works V. State, Holland (120 Ind. 119X 
 
 153. 
 Wormley's Estate, Re (137 Pa. St 101), 
 
 399. 601. 
 
TABLE OF OASES. 
 
 clxi 
 
 Beferences are to pages. 
 
 Wormouth v. Hatch (33 Cal. 120), 63. 
 Wortliam v. Thompson (81 Tex. 348), 
 
 122. 
 Worthington v, Worthington (Md., 
 
 20 Atl. Rep. 911), 514 
 Wottrich V. Freeman (71 N. Y. 601), 
 
 106. 
 Wrege v. Wescotfc (30 N. J. L. 213), 
 
 129. 
 Wright V. Carman (47 N. Y. State 
 
 Rep. 135), 478. 
 Wright V. Doe (1 Ad. & B. 3), 281. 
 Wright V. Doe (7 A. & E. 318, 861, 
 
 384, 4 Bing. N. C. 489), 13, 18, 415, 
 
 493, 526. 
 Wright V. Gillespie (43 Mo. App. 244), 
 
 129. 
 Wright V. Jackson (59 Wis. 569), 625. 
 Wright V. Prescott (3 Barb. 196), 619. 
 Wright V. Roseberry (81 Cal. 87), 224. 
 Wright V. State (108 Ala. 60), 666. 
 Wright V. State (7 Tex. App. 574), 147. 
 Wristen v. Bowles (83 Cal. 84), 818. 
 Wroe V. State (20 Ohio St. 460), 453, 
 
 707. 
 Wyatt V. Rambo (29 Ala 510), 116. 
 Wycklyn v. City of Rochester (118 
 
 N. Y. 437, 39 N. Y. State Rep. 790), 
 
 537. 
 WyckofE V. Ferree (168 Pa. St 361), 
 
 265. 
 Wyckoff V. Wilson (30 N. Y. State 
 
 Rep. 384), 323. 
 Wykofif V. Rooney (167 Pa. St 344), 
 
 378. 
 Wyman v. Gould (47 Me. 159), 588. 
 Wynn v. Central Park & N. E, R R 
 
 Co. (138 N. Y. 575), 609. 
 Wynne v. Aubuchon (38 Mo. 30), 235. 
 Wynne v. State (56 Oa. 113), 540. 
 
 Yale V. Comstook (113 Mass. 367), 475. 
 Yancy v. Stone (9 Rich., S. C, Eq. 
 
 439), 477. 
 Yanish v. Pioneer Fuel Co. (64 Minn. 
 
 175), 483. 
 Yarborough v. Hudson (19 Ala. 653), 
 
 233. 
 
 Yates V. Donaldson (5 Md. 389), 315. 
 Yazoo & M. V. R Co. v. Jones (7a 
 
 Miss. 339), 484 
 Yazoo & M. V. R Co. v. McLorty (71 
 
 Miss. 755), 348. 
 Yeandle v. Yeandle (18 N. Y. State 
 
 Rep. 586), 587. 
 Yeaton v. Eagle Oil & Ref. Co. (4 
 
 Wash. 183), 643. 
 Yester v. Hochstettler (4 Wash. 349), 
 
 401. 
 Young V. Brady (94 Cal. 138), 33. 
 Young V, Cunningham (57 Mich. 153),. 
 
 154, 513. 
 Young V. Cureton (87 Ala. 737), 683. 
 Young V. Dearborn (33 N. H. 373), 476. 
 Young V. Glasscock (79 Mo. 574), 46. 
 Young V. Gilman (46 N. H. 186), 104 
 Young V. Johnson (46 Hun, 164), 541. 
 Young V. Johnson (138 N. Y. 336, 88- 
 
 N. Y. State Rep. 486), 568. 
 Young T. Luce (50 N. Y. State Rep. 
 
 253), 160. 
 Young V. Peck (31 Wend. 389), 395. 
 Young V. Scarfe (153 Pa. St 853), 167. 
 Young V. Stahelin (34 N. Y. 358), 871. 
 Young V. Wempe (46 Fed. Rep. 354), 
 
 599. 
 Young V. Wood (11 B. Mon. 138, 184),. 
 
 30. 
 Younglove v. Nelson (51 Minn. 173),. 
 
 307. 
 Youngs V. Heflfner (86 Ohio, 383), 638. 
 York & M. L. R Co. V. Winans (17 
 
 How., U. S., 30), 193. 
 Yorks V. Steels (50 Barb. 397), 113. 
 Yost V. Mensch (141 Pa. St. 73), 353. 
 
 z. 
 
 Zimpleraan v. Hipwell (54 Fed. Rep. 
 
 848), 307. 
 Zinc & I. Co. V. Lehigh Zinc & L Co.. 
 
 (59 N. J. L. 189), 463, 
 Zinke v. Zinke (90 Hun, 127), 163. 
 Zitske V. Goldberg (88 Wis. 216), 479. 
 Zuchtmau v. Roberts (109 Mass. 58, 
 
 54), 119. 
 Zwisler v. Storts (89 Mo. App. 163),. 
 
 624 
 
RULES OF EVIDENCE. 
 
 CHAPTEE I. 
 
 PRELIMINARY OBSERVATIONa 
 
 EVIDENCE — DEFINITION OP. 
 
 i 1. In general. 
 
 2. Primary. 
 
 3. Secondary. 
 
 4. Positive. 
 
 5. Presumptive, 
 
 6. Hearsay. 
 
 7. Parol 
 
 § 8. Circumstantial. 
 9. Conclusive. 
 
 10. Direct 
 
 11. Extrinsic. 
 13. Cumulative. 
 
 13. Competent, 
 
 14. Relevant. 
 
 15. Moral. 
 
 16. Satisfactory. 
 
 EVIDENCE DEFINITION OF. 
 
 § 1. In general. — The word " evidence," in legal acceptation, 
 includes all the means by which any alleged matter of fact, 
 the truth of which is submitted to investigation, is established 
 or disproved,' or it is whatever is exhibited to a court or jury, 
 whether it be by matter of record, or writing, or by the testi- 
 mony of witnesses, in order to enable them to pronounce with 
 certainty concerning the truth of any matter in dispute ; ^ or it 
 is that which is legally submitted to a jury to enable them to 
 decide upon the questions in dispute or issue, as pointed out 
 by the pleadings and distinguished from all argument or com- 
 ment.' 
 
 Evidence may be considered with reference to : (1) The 
 nature of the evidence. (2) The object of the evidence. (3) The 
 instruments of evidence, (4) The effect of evidence. 
 
 As to its nature, evidence may be considered with reference 
 to its being: (1) Primary evidence. (2) Secondary evidence. 
 (3) Positive. (4) Presumptive. (5) Hearsay. (6) Admissions. 
 
 I Starkie Ev. 10 ; 1 Greenl. Ev. 3. » i Starkie Ev. 8. 
 
 2Bao. Abr., tit. Ev. 
 1 
 
2 EULES OF EVIDENCE. 
 
 § 2. Primary evideiiee. — Primary evidence is the best evi- 
 dence the case admits of. Thus, for example, when a written 
 contract has been entered into, and the object is to prove 
 what it was, it is requisite to produce the original writing if 
 it is to be obtained, and in that case no copy or other inferior 
 evidence will be received. 
 
 § 3. Secondary evidence. — Secondary evidence is that spe- 
 cies of proof which is admissible on the loss of primary evi- 
 dence, and which becomes by that event the best evidence. 
 While it has been decided that there are no degrees in sec- 
 ondary evidence, and, when a party has laid the foundation 
 for such evidence, he may prove the contents of a deed by 
 parol, yet after proof of the due execution of the original 
 the contents should be proved by a counterpart, if there be 
 one, for this is the next best evidence ; and it seems that no 
 evidence of a mere copy is admissible until proof has been 
 given that the counterpart cannot be produced. 
 
 § 4. Positive evidence, — Positive or direct evidence is that 
 which, if believed, establishes the truth of a fact in issue, and 
 does not arise from any presumption. Evidence is direct and 
 positive when the very facts in dispute are communicated by 
 those who have the actual knowledge of them by means. of 
 their senses.^ 
 
 § 5. Presumptive evidence. — Presumptive evidence is that 
 which is not direct, but where, on the contrary, a fact which 
 is not precisely known is presumed or inferred from one or 
 more other facts or circumstances which are known.' 
 
 § 6. Hearsay. — Hearsay is the evidence of those who re- 
 late, not what they know themselves, but what they have 
 heard from others. Such mere recitals or assertions cannot 
 be received in evidence for many reasons, but principally for 
 the following: First, that the party making such declarations 
 is not on oath. And secondly, because the party against 
 whom, if it operates, has no opportunity of cross-examination. 
 
 § 7. Parol evidence. — The testimony of witnesses is called 
 parol evidence, or that which is given viva voce, as contradis- 
 tinguished from that which is written or documentary. 
 
 § 8. Circumstantial. — Circumstantial evidence is the proof 
 of facts which usually attend other facts sought to be proved; 
 
 ' 1 Starkie Ev. 19. 2 1 Starkie Ev. 18. 
 
PEELIMINAET OBSERVATIONS. 3 
 
 that which is not direct evidence. Thus, when a witness tes- 
 tifies that a man was stabbed with a knife, and that a piece 
 of the blade' was found in the wound, and it is found to fit 
 exactly with another part of the blade found in the possession 
 of the prisoner, the facts are directly attested, but they only 
 prove circumstances, and hence this is called circumstantial 
 evidence. Circumstantial evidence is of two kinds, namely, 
 certain and uncea?J;ain. It is certain when the conclusion in 
 question necessarily follows; as, where a man had received a 
 mortal wound and it was found that the impression of a 
 bloody left hand had been made on the left arm of the de- 
 ceased, it was certain that some other person than the deceased 
 must have made such mark. But it is uncertain whether 
 the death was caused by suicide or by murder, and whether 
 the mark of the bloody hand was made by the assassin or 
 by a friendly hand that came too late to the relief of the de- 
 ceased. 
 
 § 9. Conclusive. — Conclusive evidence is that which, while 
 uncontradicted, satisfies the jury and judge ; it is also that 
 which cannot be contradicted. 
 
 § 10. Direct. — Direct evidence is that which applies im- 
 mediately to \,h.e factum probandum without any intervening 
 process, as if A. testifies that he saw B. infiict a mortal wound 
 on C, of which he immediately died. 
 
 §11. Extrinsic. — Extrinsic evidence is external evidence, 
 or that which is not contained in the body of an agreement, 
 contract and the like. 
 
 § 12. Cumulative. — Cumulative evidence is evidence of the 
 same kind to the same point. Thus, if a fact is attempted to 
 be proved by the verbal admission of a party, evidence of an- 
 other verbal admission of the same fact is cumulative. 
 
 § 13. Competent. — By competent evidence is meant that 
 which the very nature of the thing to be proved requires, as 
 the fit and appropriate proof in the particular case. 
 
 § 14. Relevant. — By this term is understood the evidence 
 which is applicable to the issue joined. It is relevant when it 
 is applicable to the issue and ought to be received ; it is irrel- 
 evant when it does not apply and ought to be excluded. 
 
 § 15. Moral evidence. — By moral evidence is meant, not 
 only that kind of evidence which is employed on subjects 
 
4 EOLES OF EVIDENCE. 
 
 connected with moral conduct, but all the evidence which is 
 not obtained, either from intuition or from demonstration.' 
 
 § 16. Satisfactory. — By satisfactory evidence is intended 
 that amount of proof which ordinarily satisfies an unpreju- 
 diced mind beyond reasonable doubt. That is to say, tliat 
 which is sufficient to satisfy the mind and conscience of a 
 common man ; and so to convince him that he would venture 
 to act upon that conviction in matters of the highest concern 
 and importance to his own interest. 
 
 1 Garabier's Moral Ev., p. 131. 
 
CHAPTEE 11. 
 
 RELEVANCY AND MATERIALITY. 
 
 § 1. Relevancy — Meaning of. 
 
 2. Must tend to prove issue when. 
 
 3. As against one of two or more 
 
 defendants. 
 
 4. Proof of negative. 
 
 5. Matters pending suit. 
 
 6. Intentions, good faith, eta 
 
 7. Notice, knowledge, etc. 
 
 CHAKACTER AND KEPITTATION. 
 
 8. In general. 
 
 9. In criminal cases. 
 
 10. Impeaching evidence. 
 
 11. Number of witnesses. 
 
 12. Proof of corroborating declara- 
 
 tions. 
 
 13. Explaining contradictory state- 
 
 ments. 
 14 Sustaining evidence. 
 
 ! 15. Sustaining a witness when im- 
 peached by proof of convic- 
 tion for a crime. 
 
 16. Party calling a witness may 
 
 show his contradictory state- 
 ments. 
 
 17. Cross-examination as to collat- 
 
 eral facts. 
 
 18. Laying foundation for contra- 
 
 dicting witness. 
 
 19. When reputation is in issue. 
 SO. Mode of proving reputation in 
 
 other cases. 
 
 21. Evidence to show bias or cur- 
 rupt motives. 
 
 23. Declarations of absent or de- 
 ceased person to impeach his 
 testimony. 
 
 §1. ReleTancy — Meaning of. — The meaning of the word 
 " relevant," as applied to testimony, is that it directly touches 
 upon the issue which the parties have made by their pleadings 
 so as to assist in getting at the truth of it, or that any two 
 facts to which it is applied are so related to each other that, 
 according to the common course of events, one, either taken 
 by itself or in connection with other facts, tends to prove, 
 proves, or renders probable or improbable, the past, present 
 or future existence or non-existence of the other. It comes 
 from the French " reliever," which means to assist. Any evi- 
 dence which will assist in knowing ^yhich party speaks the 
 truth of the issue is relevant. In determining whether evi- 
 dence is relevant all the issues must be kept in view, as it 
 may be admissible as to one though not as to another.^ So 
 facts which, though not in issue, are so connected with a fact 
 in issue as to form part of the same transaction or subject- 
 
 > Dilleber v. Home Life Ins. Co., 69 N. Y. 356. 
 
6 EDLES OF EVIDENCE. 
 
 matter, are deemed to be relevant to the fact with which they 
 are so Connected.* Thus, facts which are the occasion, cause 
 or effect, immediate or otherwise, of relevant facts or facts iu 
 issue, or which constitute the state of things under which 
 they happened, or which afford an opportunity for their oc- 
 currence or transaction, are relevant.^ And facts not other- 
 wise relevant are relevant if they are inconsistent with any , 
 fact in issue or relevant fact ; or if by themselves, or in con- 
 nection with other facts, they make the existence or non-exist- 
 ence of any fact in issue, or relevant fact, highly probable or 
 improbable.' 
 
 Indecency of evidence is no objection to its being received 
 where it is necessary to the decision of a civil or criminal 
 right. But evidence offered jn support of immaterial issues 
 may be rejected by the court, although not objected to by 
 either party.* Sir J. Stephen, in his Digest of the Law of Evi- 
 dence (art. 9), states the rule to be, that " facts necessary to 
 be known to explain or introduce a fact in issue, or relevant, 
 or deemed to be relevant, to the issue, or which support or 
 rebut an inference suggested by any such fact, or which es- 
 tablish the identity of any thing or person whose identity is 
 in issue, or is deemed to be relevant to the issue, or which &x 
 the time or place at which any such fact happened, or which 
 show that any document produced is genuine or otherwise, or 
 which show the relation of the parties by whom any such fact 
 was transacted, or which afforded an opportunity for its oc- 
 currence or transaction, or which are necessary to be known 
 in order to show the relevancy of other facts, are deemed to 
 be relevant in so far as they are necessary for those purposes 
 respectively." In other words, it is relevant to put in evi- 
 dence any circumstance which tends to make the proposi- 
 
 1 Paine v. Farr, 118 Mass. 74 ; Holmes 53 N. J, Eq. 650 ; Sayer v. Great Falls 
 V. Goldsmith, 147 U. S. 150. Water Co., 15 Mont. 1 ; Conway, v. 
 
 2 People V. Efflnger, 105 Cal. 36; New Orleans & C. R. Co., 46 La. Ann. 
 Meriden Savings Bank v. Wellington, 1439 ; Baltimore & O. R Co. v. Camp, 
 64 Conn. 553 ; Turner v. United 65 Fed. Rep. 953 ; Duval v. Pullman 
 States, 66 Fed. Rep. 387; State v. Palace Car Co., 62 Fed. Rep. 365; 
 Desforges, 47 La. Ann. 1167. White v. Van Horn, 159 U. S. 172; 
 
 3 Bright V. Bai-nett & K Co., 36 L. Krause v. Morgan, 53 Ohio St. 94; 
 R. A. 534, 88 Wis. 399 ; Jackson v. Perry v. Moore, 66 Vt. 519. 
 Jackson, 80 Md. 176 ; Clark v. Clark, < Cor^iing v. Corning, 6 N. Y. 100. 
 
EELEVAXOY AND m\teEIALITT. 7 
 
 tion at issue either more or less probable.' Great latitude is 
 allowed in the reception of circumstantial evidence, and the 
 competency of a collateral fact is not to be determined by the 
 conclusiveness of the references it may afford as to the liti- 
 gated fact. It is enough if it may tend, even in a slight de- 
 gree, to assist a determination of the truth.* 
 
 Thus, on the trial of an action upon a contract relating to 
 patent rights, plaintiff claimed that it had been modified, while 
 defendant alleged that it had been utterly abandoned and can- 
 celed, and the defendant, to sustain his position, introduced a 
 letter from plaintiff to defendant in which he referred to the 
 fact that the contract was canceled by mutual consent. Upon 
 plaintiff's redirect examination he stated that he wrote the 
 letter because he saw an article in a newspaper giving the pub- 
 lic to understand that the defendant owned the patent. The 
 plaintiff was then allowed to put such newspaper in evidence.' 
 
 If the making of any loan by a party is denied, evidence 
 of his poverty at the time is competent as tending to disprove 
 it. Thus, in an action upon a note alleged to have been given 
 for the money, the defense being that the note is a forgery 
 and the loan a fiction, evidence tending to prove the payee's 
 want of means to make the loan, and evidence tending to show 
 that the maker was a borrower of money, is admissible.* So, 
 to fortify the presumption of payment from great lapse of 
 time, testimony that the debtor has been in good and the cred- 
 itor in poor circumstances during such time is admissible.' 
 
 It is a rule of pleading, where by the practice of the court 
 the facts in issue must be reduced into written forms, that evi- 
 dence shall not be pleaded. And there is a converse rule in 
 
 lOstrander v. Snyder, 73 Hun, 378, 677, 43 N. Y. State Rep. 930; Wein- 
 
 57 N. Y. State Rep. 289 ; Robinson v. berg v. Kran, 44 id. 126 ; Glessner v. 
 
 Cutter,.163 Mass. 377 ; Loker v. Camp- Patterson, 164 Pa. St. 234. 
 
 bell, id. 343 ; Edwards v. Three Riv- * Dryer v. Brown, 33 N. Y. State 
 
 ers, 103 Mich. 153 ; Luetgert v. Volker, Rep. 695, 53 Hun, 331 ; Carr v. H. C. 
 
 153 111. 385 ; Jones v. Cordele G. Co., Frick Coke Co., 170 Pa. St. 63 ; Farm- 
 
 94 Ga. 14 ; Gardner v. Crenshaw, 133 ers' State Bank v. Pennsylvania Inv. 
 
 Mo. 79 ; Butchers' 8. & M. Ass'n v. Co., 53 Kan. 386. 
 
 Com., 163 Mass. 386 ; Hall v. Stevens, , » In the Matter of Kneenan, 5R N. 
 
 89 Wis. 447. Y. State Rep. 137; State Trust Co. v. 
 
 2 Holmes v. Goldsmith, 147 U. S. Owen Paper Co., 163 Mass. 156; Gold- 
 150. enson v. Lawrence, 73 N. Y. State 
 
 3 Minor v. Barron et al., 131 N. Y. Rep. 664. 
 
8 KtJLES'OF EVIDENCE. 
 
 the adduction of evidence, that a witness may not be asked the 
 question in issue, since that is for the jury ; he may only be 
 asked as to the details of fact, from vrhich the jury are to draw 
 the general conclusion. Itis not possible to define with exact 
 precision the degree of generality permissible in pleadings,' 
 nor the degree of particularity which must be observed in pre- 
 senting the items in evidence, since they vary to some extent 
 according to the circumstances of the case. It constantly hap- 
 pens in the course of a case that evidence is given of small 
 matters which are in dispute, merely for the purpose of intro- 
 ducing or completing the setting, so to speak, of some part of 
 the story, and so rendering it more intelligible to the jury, 
 just as in a speech it is necessary not to present the important 
 facts in too bare a manner, if they are to be followed with ease 
 by the listeners. It also frequenth'^ happens that a contest will 
 arise as to some point connected in a merely remote and sub- 
 ordinate way with the issue. "With regard both to the admis- 
 sibility and the mode of proof of such matters as these, which 
 are often spoken of as the fringe of the case, the judge has a 
 wide discretion. It is for the judge to decide, as a matter of 
 law, whether any particular fact is fit to be laid before the 
 jury as evidence, and for the jur}"^, with his assistance, to de- 
 termine, as a matter of fact, what weight they will give to it 
 when so presented. Hence, the law deals principally with the 
 admissibility of evidence, and has little to say as to the weight 
 of it when admitted. And'this distinction between fact and 
 law in matters of evidence exists no less in trials without a 
 jury, although the two functions of judge and jury are united 
 in one person. 
 
 The fact that a particular piece of evidence is not conclusive 
 of guilt does not render it inadmissible. Any fact or circum- 
 stance which, with other facts offered in evidence, bears upon 
 the charge in a criminal case, is competent, although its tend- 
 ency to prove guilt is slight when taken alone.^ Thus, the 
 fact of finding liquor in a stable used by defendant in common 
 
 1 Blake v. Albion Life Ass. Soc, 45 United States v. Newton, 53 Fed. Rep. 
 
 L. J. C. P. 667; Pliillips v. Phillips, 4 375; Eichards v. State, 36 Neb. 183; 
 
 Q. B. D. 137. State v. Best, 111 N. C. 638 ; Hodge v.. 
 
 2State V. Rhodes, 111 N. C. 647; State, 98 Ala. 10. 
 Com. V. Brothers, 158 Mass. 300; 
 
EELEVANCY AND MATEEIALITY. 9 
 
 with others, and his conduct in regard to it, is competent In a 
 prosecution for illegally keeping intoxicating liquors.^ 
 
 Ownership may be proved by proof of possession, and that 
 can be shown only by acts of enjoyment of the land itself;^ 
 but it is impossible, in the nature of things, to confine the evi- 
 dence to the very precise spot on which the alleged trespass 
 may have been committed; evidence may be given of acts 
 done on other parts, provided there is such a common char- 
 acter of locality between those parts and the spot in question 
 as would raise a reasonable inference in the minds of the jury 
 that the place in dispute belonged to the plaintiff if the other 
 parts did. In ordinary cases, to prove his title to a close, the 
 claimant may give in evidence facts of ownership in any part 
 of the same inclosure ; for the ownership of one part causes a 
 reasonable inference that the other belongs to the same per- 
 son, though it by no means follows as a necessar}' consequence; 
 for different persons may have balks of lands in the same in- 
 closure, but this is a fact to be submitted to the jury. So I 
 apprehend the same rule is applicable to a wood which is not 
 inclosed by any fence. If you prove the cutting of timber in 
 one part, I take that to be evidence to go to a jury to prove a 
 right in the whole wood, although there be no fence or distinct 
 boundary surrounding the whole. The acts of enjoyment 
 from which the ownership of real propertj'^ may be inferred 
 are very various ; as, for instance, the cutting of timber,^ the 
 repairing of fences or banks,* the perambulation of boundaries 
 of a manor or parish,^ and the granting to others of licenses* 
 or leases ' under which possession is taken and held ; for all 
 these acts are fractions of that sum total of enjoyment which 
 characterizes dominion.^ And successful claims to exercise pos- 
 sessory rights are equally relevant facts when they are exer- 
 cised through the intervention either of customary courts or 
 of the courts of the land. 
 
 In like manner it has been frequently held that verdicts and 
 judgments in actions of trespass to hereditaments,' convic- 
 
 iCom. V. Moore, 157 Mass. 334; 6 Rogers v. Allen, 1 Camp. 309. 
 
 Com. V. Hurley, 158 id. 159. 'Bristow v. Cormican, 3 App. Cas. 
 
 2 Fletcher v. Fuller, 120 U. S. 534. 641. 
 
 3 Stanley v. White, 14 East, 333. s stickney v. Stickney, 131 U. S. 337. 
 * Jones V. Williams, 3 M. & W. 336. » Rogers v. Allen, 1 Camp. 309 ; Neill 
 5 Weeks v. Sparke, 1 M. & S. 679, v. Devonshire, 8 App. Cas. 135. 
 
 689 ; Wool way v. Rowe, 1 A. & E. 114. 
 
10 EULE8 OF EVIDENCE. 
 
 tions for the non-repair of public ways,' and verdicts and judg- 
 ments for the recovery of prescriptive tolls,^ are admissible as 
 relevant facts when the right to the land, the way, or the toll, 
 respectively, is in question. 
 
 Evidence that the accounts between a grantee of land and 
 his grantor were open on the latter's books after the convey- 
 ance until a controversy as to the validity of the conveyance 
 had arisen between a creditor of the grantor and the grantee 
 is relevant to the question whether the land was paid for in 
 whole or in part by extinguishing the accounts, where the 
 books have been lost.' On a trial for murder in which the 
 theory of the state is that the purpose of the homicide was 
 robbery, evidence that defendant shortly before the crime was 
 impecunious, and soon after spent money in a lavish manner, 
 is admissible, although none of the money spent by him is 
 identified as that of the deceased.* 
 
 § 2,, Must tend to prove issue when. — Each party to an 
 action must proceed upon some definite theory, and the evi- 
 dence introduced by him must support that theoi-y.' It is not 
 necessary, however, that the evidence should bear directly 
 upon the issue; it is sufficient if it tends to prove the issue, or 
 constitutes a link in the chain of proof.* And evidence ought 
 never to be adjudged irrelevant which, according to ordinary 
 experience and the common observation of the motives and 
 conduct of men, may fairly be supposed to influence and per- 
 suade candid and intelligent minds.' Thus, a witness may tes- 
 tify to the existence of any collateral fact tending to enable 
 him to remember the principal fact or strengthen his convic- 
 tion of its truth.^ 
 
 The exclusion of testimony on the ground that it is im- 
 material is a holding that no inquiry on that subject will be 
 allowed, and is error if the subject-matter of the inquiry is 
 
 1 R V. Brightside, Bierlow, 13 Q. B. ^ Colglazier v. Colglazier, 134 Ind. 
 
 933. 196; People v. Hare, 57 Mich. 505; 
 
 2 City of London v. Clarke, Garth. Hunter v. Harris, 131 111. 483, 34 111. 
 
 181; Laybourn v. Crisp, 4 M. & W. App. 638; Cleveland, C, C. & I. E. 
 
 330. Co. V. Closser, 136 Ind. 348, 43 Alb. 
 
 8 Sharp V. Hicks, 94 Ga. 624. L. J. 209. 
 
 4 Lancaster v. State (Tex.), 31 S. W. 'Copp v. Hardy, 33 Mo. App, 588, 
 Rep. 515. Passmore v. Passmore, 60 Mich. 463. 
 
 5 Wagner v. Winter, 133 Ind. 57; « Louisville, E. & St L R. Co. v. 
 Hood v. Olin, 80 Mich. 396. Hart, 3 Ind. App. 130. 
 
EELEVANCY AND MATERIALITY. 11 
 
 material in tlie determination of any of the issues raised.' 
 But evidence the relevancy of which is not apparent, and 
 which may be prejudicial to the other party, is inadmissible, 
 even upon the understanding that, unless the party tendering- 
 it produces other testimony which will make it competent, it 
 may be excluded.^ 
 
 § 3. As against one of two or more defendants. — One de- 
 fendant is not entitled to have excluded in its entirety evi- 
 dence which is admissible against his co-defendant, his remedy 
 being to ask instructions limiting its effect so as to confine its 
 influence to the latter.' Thus, in an action against two for 
 the commission of a tort, evidence is admissible, if competent, 
 as against either party. If incompetent as against the other, 
 its use and application must be limited by proper instructions.* 
 
 § i. Proof of negative. — Negative evidence is secondary 
 evidence in character. But persons who were in a position to 
 have heard may testify that they did not hear, although it does 
 not affirmatively appear that they were looking, watching or 
 listening.^ So negative evidence is proper in many cases. Thus,, 
 negative testimony may be introduced by the defendant in 
 support of his good character.' So testimony that plaintiff, in 
 an action for injuries alleged to have been received by being 
 thrown from a street-car by the driver, made no claim that he 
 had been so thrown, immediately after the accident, is admis- 
 sible.' And plaintiff in an action for assault and battery is 
 entitled to show that she took no part in a quarrel between 
 others from which the assault arose, and that the assault upon 
 her was unprovoked and wanton.^ So where the evidence of 
 plaintiff for a wrongful discharge from employment by the 
 manager of defendant's corporation is conflicting as to plaint- 
 iff's fidelity, it is proper to prove by plaintiff that the man- 
 ager had never objected to his fidelity.' 
 
 1 Winchell v. National Exp. Co., 64 5 Greany v. Long Island R. Co., 101 
 
 Vt 15 ; Wills V. Higgins, 132 N. Y. N. Y. 419. 
 
 459, 44 N. Y. State Rep. 608. SHussey v. State, 87 Ala 131. 
 
 estate V.Thomas, 99 Mo. 235; Skel- 'Kummer v. Christopher & T. 
 
 lie V. Central Railroad & Bkg, Co., 81 Street R. Co. 46 N. Y. State Rep. 386. 
 
 Ga. 56. * Pokriefka v. Muukurat, 91 Mich. 
 
 3 Owens V. State, 94 Ala. 97 ; Smith 399. 
 
 V. Collins, id, 394. 9 Linton v. Unexcelled Fireworks 
 
 * Consolidated Ice Mach. Co. v. Co., 138 N. Y. 673, 33 N. Y. State Rep. 
 
 Keifer, 134 111. 481. 1108. 
 
12 EULES OF EVIDENCE. 
 
 § 5. Matters pending suit.— As a general rule no evidence 
 ■of any fact tending to aggravate or diminish the damages 
 ■which have occurred after the commencement of the action 
 should be admitted.^ Thus, evidence of defendant's adultery 
 subsequent to the filing of a bill for divorce is inadmissible.' 
 And, as a general rule, matters arising after the commence- 
 ment of an action must be brought to the attention of the 
 oourt, if at all, by a supplemental pleading.' But the rule 
 seems to have been modified in Whitmark v. liew York El. 
 E. Co.* In Eccles v. Eodman' it is held that, in an action 
 for libel, evidence of the repetition of the libel or the publica- 
 tion of other libelous matter after the commencement of the 
 action is inadmissible for any purpose. But in some states the 
 above general rule seems to have some exceptions. Thus, it 
 has been held that an article published by defendant pending 
 an action for libel may be admissible as a republication of the 
 libel to show malice;^ and that defendant's declarations made 
 after the commencement of a suit against him for slander may 
 be admitted in evidence upon the question of malice.' 
 
 § 6. Intentions, good faith, etc. — When it is relevant to 
 prove that some act was done with a particular intent on 
 which its true legal character depends, declarations made by 
 the person doing it, either at the time or immediately after- 
 wards, have frequently been held admissible to prove what 
 that intent was.^ Thus, where questions arise concerning dom- 
 icile, declarations made by the person so residing, as to his in- 
 tention to stay or remove, are admissible.' It has often been 
 said that the true ground on which these declarations are ad- 
 mitted is that they constitute part of the res gestm}" Keasons 
 
 1 Dent V. Pickens, 34 W. Va 240. ' Turton v. New York Recorder Co., 
 
 2 Foval V. Foval, 39 111. App. 644. 144 N. Y. 144. 
 
 3 Ferris v. Tannebaum, 39 N. Y. 8 Wright v, Doe, 7 A. & E. 313, 361, 
 State Rep. 71 ; Duquette v. Richer, 384. 
 
 103 Mich. 483; Joliet v. Blower, 155 » Hodges v. Beauchesne, 12 Moo. P. 
 
 111. 414 ; Leavering v. Smith, 115 N. C. C. 285, 325 ; Doucet v. Geoghegan, 9 
 
 S85. ■ Ch. D. 441. 
 
 M49N. Y. 393. lORobson v. Kemp. 4 Esp. 233; 
 
 5 57 N. Y. State Rep. 657. Rawsoa v. Haigh, 3 Bing. 99; Lees 
 
 6 Welch V. Tribune Pub. Co., 83 v. Marton, 1 Moo. & Rob. 210 ; Rouch 
 Mich, 661 ; Eldridge v. State, 27 Fla. v. G. W. R. Co., 1 Q. B. 51. 
 
 162 ; Mobre v. Carter, 146 Pa. St. 493 ; 
 Gray v. Parke, 155 Mass. 433. 
 
EELEVANOr AND MATERIALITY. 13 
 
 have been submitted for thinking that this view is not in har- 
 mony with the general principle of similar exceptions, and 
 such would seem to have been the later view of Parke, B., as 
 indicated in his considered judgment in the case of "Wright v. 
 Doe.^ When there is a question whether a person said or did 
 something, the fact that he said or did something of the same 
 sort on a different occasion may be proved if it shows the ex- 
 istence on the occasion in question of any intention, knowl- 
 edge, good or bad faith, malice or other state of the mind, or 
 of any state of body or bodily feeling, the existence of which 
 is in issue, or is, or is deemed to be, releVant to the issue ; but 
 such acts or words may not generally' be proved merely in 
 order to show that the person so acting or speaking was likely 
 on the occasion in question to act in a similar manner.^ 
 
 A person who is competent to prove his motives and inten- 
 tions may state in general terms that he did or refrained from 
 doing a particular thing material to the issue on account of 
 information received from a third person, but cannot go into 
 details or give conversations with third persons held out of 
 the hearing of the opposite party.' 
 
 Declarations of a wife while leaving her husband's house 
 and on the way to that where defendant was stopping and 
 after reaching there, and her refusal at defendant's request to 
 return to her husband, with the reasonsx given, are admissible 
 in an action for alienating her affections, as part of the res 
 gestw} It may also be shown that she caused her husband to 
 be prosecuted just before leaving him. 
 
 Declarations introduced solely to show the state of mind or 
 intention of the maker at the time they were made are acts 
 from which his state of mind or intention may be inferred in 
 the same manner as from his appearance, behavior or actions 
 generally.' The declaration must be contemporaneous with 
 or closely follow the act which it is said to accompany. It 
 has been held that even the interval of a few hours is sufHcient 
 to render it inadmissible." 
 
 1 7 A. & E. 313, 384 ' Lawson v. Conaway, 37 W. Va. 
 
 2 Stephen's Dig. of the Law of Ev., 159. 
 
 art 11 ; Butler v. Watkins, 13 Wall. ^Eudd v. Rounds, 64 Vt. 438. 
 
 457; Lincoln v. Claflin, 7 id. 133; 5 Cora. v. Trefethen, 157 Mass. 180. 
 
 Castle V. BuUard, 33 How. (U. S.) 172 ; 6 Leea v. Marton, 1 Moo. & Rob. 310 ; 
 
 Bottomly v. United States, 1 Story, Rawson v. I^aigh, 3 Bing. 99, 103, 104. 
 135; Rose. N. P. 739. 
 
14 EULES OP EVIDENCE. 
 
 The declarations, and conduct equivalent to declarations, of 
 wife ' or paramour ^ as to the legitimacy or illegitimacy of 
 offspring of the wife are held to be admissible when the ques- 
 tion in issue is whether such offspring is or is not legitimate. 
 And it has been said that on the issue as to whether an em- 
 ployee's negligent act, by which a third person sustained in- 
 juries, was within the scope of his employment, or was merely 
 for his own amusement and to gratify his idle curiosity, he 
 may testify that he was not acting in the course of his employ- 
 ment, but merely for his own amusement.' 
 
 A witness maybe asked for. what reason he did not examine 
 certain premises which he was sent to examine.* And in an 
 action for the purchase price of a steam-heating tank, plaintiff's 
 machinist may testify as to the declarations of the fireman and 
 engineer of the defendant that they thought the tank was all 
 right.^ 
 
 To prove the substantive fact of damage, but not to prove 
 the meaning of the words used nor the innuendo charged, wit- 
 nesses who received an alleged libelous circular letter may 
 testify as to the effect produced upon them thereby.* So in 
 an action for breach of promise of marriage, it is competent, 
 for the purpose of showing how plaintiff was affected by de- 
 fendant's marriage to another woman, to ask witness how it 
 affected or seemed to affect her ; and an answer that she was 
 downhearted is admissible.' So on the issue as to whether there 
 was a honafide and substantial compliance with an agreement 
 to build a party-wall by the one who erected it, he may be 
 asked whether he intended to have the wall built correctly.' 
 
 Similar fraudulent acts committed about the same time, and 
 when the same motive may reasonably be supposed to exist, 
 are admissible in evidence to establish the intent of one party 
 to a transaction claimed by the other party to have been fraud- 
 ulent.' 
 
 1 Aylesford Peerage, 11 App. Cas. 1. 6 Logan v. Berkshire Apart Ass'n, 
 
 2Burnaby v. Baillie, 42 Ch. D. 283. 53 N. Y. State Eep. 133. 
 
 'Brunner v. American Teleg. & 6 Warner v. Clark, 45 La. Ann- 897. 
 
 Teleph. Co., 151 Pa. St. 447. 'Robertson v. Graver, 88 Iowa, 341. 
 
 * McCarthy v. Gallagher, 53 N. Y. 8 Hammain v. Jordan, 129 N. Y. 61, 
 
 State Rep. 176 ; People v. Gardner, 41 N. Y. State Rep. 124. 
 
 144 N. Y. 119 ; Fussell v. State, 93 Ga. ^McCasker v. Enright, 64 Vt. 488; 
 
 450; People v. Clark, 106 Cal. 32. O'Day v. Chaffee, 64 Hun, 637, 46 
 
 N. Y. State Rep. 747. 
 
EELEVANCY AND MATERIALITY. 15 
 
 § 7. Notice, knowledge, etc. — Acts or omissions are admis- 
 sible to show the existence of knowledge, intent or motive in 
 any case where the existence of such knowledge, intent or 
 motive is a fact in issue.' Thus, proof of the happening of a 
 prior accident in the same place has frequently been held to 
 be competent, upon the ground that it tends to show that, 
 tested by actual use, the place of the accident has been dem- 
 onstrated to be unsafe and dangerous ; and it seems where it 
 is shown that the conditions are similar, evidence of the oc- 
 currence of an accident in some other place on the same rail- 
 way may be proper for the same purpose.^ And proof that 
 other persons had fallen on the walk where the plaintiff was 
 injured is admissible to show the condition of the place.' So 
 the fact that, within a month prior to the time when plaint- 
 iff's horses were frightened, other horses were frightened by 
 the same place, is relevant to show notice.* Notice to defend- 
 ant of the defect in his premises which caused the injury may 
 be presumed from its existence for a sufficient length of time 
 previously.^ Thus, evidence that other cars had left the track 
 of a street railway company at or about the same place, both 
 before and after the derailment complained of, is admissible 
 to show notice to the company of their liability to leave the 
 track.^ So testimony tending to show that a horse was in the 
 
 1 Ross V. state, 63 Ala. 224; Bot- a Quinlan y. City of Utica, 74 N. Y. 
 tomley v. United States, 1 Story, 133, 603 ; Pomfrey v. Saratoga, 104 id. 469 ; 
 143 ; Castle v. Bullard, 33 How. (U. S.) Richmond R & E. Co. v. Bowles, 93 
 172,186; Butler V. Watkins, 13 Wall. Va. 738; Colorado M. & L Co. t. 
 456, 464 ; Friend v. Hamill, 34 Md. Reeves, 21 Colo. 435 ; Lindsey v. Ca- 
 298, 806 ; Com. v. Ferrigan, 44 Pa. St. nadian P. R Co., 68 Vt 656 ; Masters 
 386 ; French v. White, 5 Duer (N. Y.), v. Troy, 133 N. Y. 628, 20 N. Y. State 
 354 ; Com. v. Coe, 115 Mass. 481 ; Peo- Rep. 273. 
 
 pie V. Marion, 39 Mich. 31 ; Hawes V. * Stewart v. Porter Mfg. Co., 13 
 
 State, 88 Ala. 37 ; Com. v. Robinson, N. Y. State Rep. 331 ; Wilson v. Town 
 
 146 Mass. 571 ; Hicks v. State, 86 Ala. of Spafford, 33 id. 533, 57 Hun, 589 ; 
 
 30 ; O'Brien v. Com., 89 Ky. 354 ; McCarragher v. Rogers, 130 N. Y. 536, 
 
 Smith V. National Ben. Soc, 133 N. Y. 31 N. Y. State Rep. 595. 
 
 85 ; People v. O'SuUivan, 104 N. Y. 5 Smith v. Des Moines, 84 Iowa, 685 ; 
 
 481 ; Funderberg v. State, 33 Tex. Winuhell v. National Exp. Co., 64 Vt. 
 
 App. 393; Grace v. McArthur, 76 15. 
 
 Wis. 641 ; Miller v. State, 68 Miss. 221. « Brooklyn St, R. Co. v. Kelley, 6 
 
 2 Brady v. Manhattan R Oo:, 127 Ohio C. C. 155 ; Fee v. Columbus, 168 
 N. Y. 46, 37 N. Y. State Eep. 340 ; Pa. St. 383. 
 
 Scott V. New Orleans, 41 U. S. App. 
 49a 
 
16 EULES OF EVIDENCE. 
 
 habit of stumbling is admissible in a suit for personal injuries 
 sustained by being thrown from a carriage by the horse stum- 
 bling over an alleged defect in the highway, where there is 
 also evidence tending to show that, from long-continued own' 
 ership by her husband, plaintiff had ample opportunity to 
 learn that the horse was a habitual stumbler.^ So where it is 
 shown that a horse has been restive and unmanageable previ- 
 ous to the occasion in question, it is competent to show that he 
 subsequently manifested a similar disposition ; as the habit of 
 an animal is in the nature of a continuous fact, to be shown 
 by proof of successive acts of a similar kind.^ Evidence that 
 the plaintiff, claiming to be a honafide purchaser of the note 
 sued on, which was given in a fraudulent transaction for hul- 
 less oats, knew previously of the dealing in such oats in the 
 neighborhood, and that people were liable to be swindled 
 thereon, is admissible on the question of good faith.' 
 
 Evidence in an action against a railroad company for the 
 death of two persons struck by one of its trains, of an actual 
 test iat the same place as to whether the train that caused the 
 death could have been stopped after the engineer saw or could 
 have seen the person killed, is admissible though the test was 
 made for the purpose of proving the resulf So the effect 
 upon different horses, which are ordinarily safe and gentle, of 
 a suspended flag, may be shown on the question whether or 
 not a horse frightened by it was ordinarily safe and gentle.' 
 So in an action against a railway company for injuries received 
 at a railroad crossing, in which defendant is alleged to have 
 omitted to give the statutory signals, evidence is admissible 
 that signals were not given by the same train at a crossing 
 one and one-half miles beyond, reached within two minutes 
 after the first crossing was passed.* So evidence of former 
 transactions similar in kind between plaintiff and the cashier 
 of defendant's bank is admissible on the question whether 
 plaintiff was dealing with the cashier as an individual or as 
 
 1 Atlantic Street R. Co. v. Hardage, < Byers v. Nashville, C. & St. L. E. 
 93 Ga. 457. Co., 94 Tenn. 345. 
 
 2 Kennon v. Gilmer, 131 U. S. 33. SBemis v. Temple, 36 L. R A. 354, 
 
 3 Griffith V. Shipley, 74 Md. 591 ; 163 Mass. 343. 
 
 Cover V. Myers, id. 406 ; Mohr v. Mie- 6 Atchison, T. & S. F. E. Co. v. 
 sen, 47 Minn. 338. Hague, 54 Kan. 384. 
 
EELEVANOY AND MATEKIALITY. 17 
 
 an officer of the bank in depositing money with him.' So evi- 
 dence that defendant had sold other notes at about the same 
 time at a great discount is admissible in an action on a note to 
 account for a great discrepancy between the face of the note 
 in suit and the amount paid for it by the plaintiff.^ So evi- 
 dence that other persons, who worked at the same time in the 
 same room and under similar conditions as plaintiff, suing for 
 " damages from illness, were ill from lead poisoning, and that 
 other persons that worked there under similar conditions a few 
 months before and a few months after were ill from the same 
 cause, is admissible, in the sound discretion of the trial court, 
 upon the issue whether plaintiff was so poisoned.' So the 
 testimony of a witness that he received an electric shock at 
 the same time that an injury was received by another person 
 may be competent as bearing on the question whether such 
 injury was caused by an electric shock.* So in an action for 
 death at a railroad crossing, testimony of witnesses as to in- 
 stances in which they narrowly escaped being injured by trains 
 while passing over the crossing in vehicles is admissible, not- 
 withstanding its tendency to raise collateral issues.' So evi- 
 dence that cinders from a locomotive had burned through an 
 awning further from defendant's track than plaintiff's build- 
 ings is admissible to overcome any presumption that fire was 
 not set by defendant's engines, arising from the distance of 
 the buildings.* So evidence that sausages made at the same 
 time as those sold to defendant, which he alleges were spoiled, 
 were in good condition after the sale, is admissible as tending 
 to show that those delivered were also good.'' So in an action 
 for injuries from contact with a broken electric wire, evidence 
 that ten months after the accident the wire was patched and 
 brittle, and there was no guard wire, is admissible in corrobo- 
 ration of evidence that it was in like condition at the time of 
 the accident.* So in an action for damages from the overflow 
 
 f L'Herbette v. Pittsfield Nat. Bank, » Chicago & N. W. R Co. v. Neto- 
 
 162 Mass. 137. licky, 67 Fed. Eep. 665. 
 
 2 Turner v. Luning, 106 Cal. 124. ^ Hoskison v. Central Vermont R. 
 
 8 Shea V. Glendale Elastic Fabrics Co., 66 Vt. 618, 61 Am. & Eng. E. Cas. 
 
 Co., 162 Mass. 463. 478. 
 
 4 Block V. Milwaukee Street R. Co., 'Luetgert r. Volker, 158 111. 885. 
 
 89 Wis. 371, 27 L. R. A. 365 ; Augusta » Western Union Tel. Co. v. Thorn, 
 
 V. Lombard, 93 Ga. 284. 64 Fed. Eep. 287. 
 2 
 
18 EULES OF EVIDENCE. 
 
 of a sewer caused by an obstruction, evidence of the existence 
 of sand and other accumulation in the sewer four days after 
 the overflow is admissible on the question of the condition of 
 the sewer at the time of the overflow.' So evidence of the 
 condition of a hole in a highway about a year after an accident 
 alleged to have been caused thereby is admissible to show its 
 condition at the time of the accident, although it incidentally 
 involves evidence of changes Which had been made in the mean-" 
 time.^ So evidence of the condition of a sidewalk, gutter and 
 culvert before the accident for which the suit is brought is 
 admissible to show the condition of the locus in quo at the 
 time of the injury.' So evidence of the condition of a sidewalk 
 two days after one fell upon it is admissible upon the question 
 of its condition at the time of the accident, in the absence of 
 any allegation of a change of its condition in the interval.* So 
 in an action against a city for personal injuries caused by a 
 loose plank in a sidewalk, evidence of other loose planks in 
 that particular part of the walk is admissible. So evidence 
 that a few days after an accident the pilings and planks sup- 
 porting an approach to a bridge were in a rotten condition is 
 admissible to prove their condition at the time of the accident. 
 So in an action against a street-car company for injuries caused 
 by its piling snow in the street, evidence of its piling snow in 
 other places than that where the accident occurred is not erro- 
 neously admitted if it is confined to the imngi^ediate vicinity of 
 the place of the accident.* So in an action against a railroad 
 company for damages caused by fire communicated from the 
 premises of the defendant, evidence is admissible that engines 
 drawing trains at the place where the fire was started were 
 obliged to labor hard and consequently emitted more sparks,^ 
 So evidence that the defendant was armed two weeks before 
 the homicide with weapons similar to those used by him on tiie 
 night of the homicide is admissible, together with his declara- 
 tions implying an anticipation of some such occasion as aotu- 
 
 1 District of Columbia v. Gray, 33 <Lohr v. Philipsburg, 165 Pa; St 
 Wash. L. Rep. 340. 109. 
 
 2 Stone V. Town of Poland, 81 Hun, ' Mayer v. Milwaukee Street E. Co., 
 133. 90 Wis. 120. 
 
 3 Woolsey v. EUenville, 84 Hun, 336. « Frier v. Delaware & H. Canal Co., 
 
 86 Hun, 464; 67 N. Y. State Eep. 541. 
 
EELEVANOY AND MATERIALITY. 19 
 
 ally arose when the crime was committed, and when a weapon 
 similar to one previously seen on defendant's person was actu- 
 ally used in inflicting the mortal wound.^ So on a trial for rape 
 on defendant's daughter, evidence that he had abused and 
 beaten her before, and was abusive to his wife and other chil- 
 dren, and of the language used on those occasions, is admissible 
 as tending to show whether the prosecutrix yielded on ac- 
 count of threats and fear.^ 
 
 On a trial for assault with intent to kill, evidence of a for- 
 mer or subsequent assault upon the same person is admissible 
 to show intent.^ So evidence that defendant on trial for 
 murder knocked down another person two weeks before the 
 commission of the crime is admissible, where it was the begin- 
 ning of the hostility between defendant and deceased.* So 
 evidence that a person other than the one for whose murder 
 the accused is on trial was murdered is admissible to negative 
 a probability, arising from the other evidence, that such a per- 
 son might have killed the deceased.' So on a trial for murder 
 by drowning the deceased in a boat, evidence that the defend- 
 ant bad previously tried to poison the deceased is admissible 
 to show animus and intent, and to rebut the theory of acci- 
 dent. So evidence is admissible in a trial for murder, that the 
 accused endeavored to secure the assistance of others in cheat- 
 ing the deceased out of money in his possession, as tending to 
 show the relation between the accused and the deceased, and 
 that the accused was endeavoring to ascertain what money the 
 deceased had, and to get it in devious ways. So evidence that 
 defendant and one jointly indicted with him for murder in an 
 attempt to rob the deceased, within four hours before the com- 
 mission of the crime attempted to rob another person, and did 
 rob a third, in pursuance of a plan including several robberies, 
 is admissible. So evidence of defendant's participation in a lar- 
 ceny committed during the same night and shortly before the 
 larceny charged in the indictment was committed is compe- 
 tent upon the question whether, in assisting his alleged accom- 
 plice in the acts charged, he knew that a crime was being 
 committed.* So evidence of similar transactions is admissible, 
 
 1 Burgess v. State, 93 Ga, 304. * Slate v. Dettmer, 134 Mo. 436. 
 
 , 2 People V. Burwell, 106 Mich. 87. » People v. Smith, 106 Cal. 73. 
 
 "State v. Penningtou, 124 Mo. 388. "State v. Valwell, 66 Vt. 558. 
 
20 EULES OF EVIDENCE. 
 
 on a trial for obtaining a signature by false pretenses, to show 
 defendant's intention.^ So evidence of prior illicit relations 
 between one charged with incestuous fornication and the pros- 
 ecutrix is admissible, although it discloses other indictable 
 offenses of like nature which are barred by the statute of hm- 
 itations.^ 
 
 OHABACTEE AND EEPUTATION. 
 
 § 8. In general. — While the fact that a person is of a par- 
 ticular character is deemed to be irrelevant to an inquiry 
 respecting his conduct in civil cases, and the fact that the 
 character of any party to the action is such as to affect the 
 amount of damages which he ought to receive, is generally 
 deemed to be irrelevant unless such character is put in issue 
 by the defense, in criminal proceedings the fact that the per- 
 son accused has a good character is relevant, but that he has 
 a bad character is incompetent, unless it is itself a fact in 
 issue, or unless evidence has been given that he has a good 
 character. 
 
 The term " character " denotes not a man's inward disposi- 
 tion, nor the opinion entertained of him by this or that par- 
 ticular person alone, but the general reputation and opinion 
 held of him by those who are acquainted with him. On the 
 trial of a prisoner for wounding a constable who had arrested 
 hira on suspicion of felony, the counsel for the prosecutioa 
 asked the constable the following question: "What do you 
 know has been the prisoner's previous character?" The ques- 
 tion was objected to on behalf of the prisoner, but allowed. 
 The answer was, " I know the prisoner to be. a very bad char- 
 acter." After conviction it was held by the court that this 
 evidence was inadmissible, although the prisoner might have 
 cross-examined the constable as to the grounds of his suspicion; 
 and the conviction was accordingly quashed.' So on a prose- 
 cution for an unnatui'al offense, an admission by the prisoner 
 that he had a tendency to such practices was held inadmissi- 
 ble.* 
 
 1 People V. Jeffrey, 83 Hun, 409, 63 Labersten, 55 Kan. 674; People v. 
 
 N. Y. State Eep. 585. McClure, 148 N. Y. 95 ; People v. Van 
 
 2Com. V. Bell, 166 Pa. St 405; Eman, 111 Cal. 144. 
 
 Fowle V. Child, 164 Mass. 310 ; Beuer- ^ r. y, Turberfeld, 34 L. J. M. C. 20, 
 
 lin V. O'Leary, 149 N. Y. 83; State v, <R v. Cole, 1 Phill. Ev., p. 50a 
 
KKLEVANOY AND MATERIALITY. 21 
 
 In prosecution for rape, or for attempting to commit rape, 
 or for indecent assault, the defendant is entitled to call evi- 
 dence to show that the prosecutrix has a general bad character 
 in respect of chastity and morality, as, for instance, to prove 
 that she is a common prostitute ; but he may not give evidence 
 of specific acts of immorality, unless they were committed 
 with himself, in which case they are to be held relevant, but 
 only upon the question oi consent. If such evidence of bad 
 character is called out by the defendant, the prosecution may 
 call evidence to rebut it.* 
 
 It has been held that it is not competent to impeach a wit- 
 ness by proof that he was given to " rows ; " ^ and that evi- 
 dence of a specific and independent immoral act is inadmissi- 
 ble.' So a witness cannot be impeached by evidence that by 
 general report he was guilty of a particular offense.* Whilst 
 in Mclnerney v. Irwin ' it is said that a female witness cannot 
 be impeached by showing her bad character for chastity, it is 
 held in State v. Shrayer * that a male witness' reputation as to 
 chastity may be shown to impeach him.' It may be shown 
 that a witness was a professional witness in a certain class of 
 cases,^ although it is not error to refuse to allow the defend- 
 ant, upon cross-examination of plaintiff, to show that she is 
 a habitual litigant.' A witness cannot be asked on cross- 
 examination as to whether he had not been impeached in an- 
 other case, and if a suit for damages was not pending against 
 him for such false swearing.^" So it is error to permit a wit- 
 ness on cross-examination to be asked and compelled to an- 
 swer as to what he had sworn on a previous trial, and as 
 to whether the court had rendered a decree in opposition to 
 what he had testified." A witness' conviction for a crime 
 may be proved by cross-examination in relation thereto with- 
 out producing the record of conviction ; '^ but it is error to 
 
 IR. V. Holmes, L. E. 1 C. P. 334, 9 Palmer v. Manhattan Ey. Co., 133 
 
 and cases there cited. N. Y. 261. 
 
 2 Briggs V. Com.; 83 Va. 554. i" Pennsylvania Co. v. Bray, 135 Ind. 
 
 3 State V. Rogers, 100 Mo. 203. 229. 
 
 < State V. Hown, 107 N. C. 810. " Clink v. Gunn, 90 Mich. 135. 
 
 6 90 Ala. 275. 12 People v. Roderick, 69 Cal. 601 ; 
 
 6 104 Mo. 441. State v. Adarason, 43 Minn. 196; 
 
 ^ People v. Mills, 94 Mich. 630. State v. MuUer, 100 Mo. 606 ; Speigel 
 
 8 Rivers v. State, 97 Ala. 73. v. Hays, 118 N. Y. 660. 
 
22 EDLES OF EVIDENCE. 
 
 allow a witness to be asked on cross-examination if be has 
 been indicted/ or what he testified on his trial in regard to 
 the charge made against him.^ And where a witness on cross- 
 examination has admitted that he had been convicted of crime, 
 it is error not to allow him on redirect examination to testify 
 that he was innocent thereof, though the record of conviction 
 is evidence. 
 
 The two exceptions just mentioned in which evidence of 
 character, in the sense of general reputation, is held to be 
 relevant to the issue whether a particular act has been com- 
 mitted, must be distinguished from cases where the character 
 of a party is expressly put in issue in the case, as happens 
 sometimes in actions of libel or slander, and from cases where 
 character is virtually in issue, in the sense that the amount of 
 damages recoverable depends upon it; as, for instance, in ac- 
 tions for defamation,' seduction,^ of breach of promise of mar- 
 riage,' or in claims of damage for adultery against a co- 
 respondent, which proceed on the same principles as the old 
 action for criminal conversation. In all these cases the evi- 
 dence is admitted on -different grounds, — the character is either 
 the subject of the inquiry or an element in the estimation of 
 the damage suffered, and does not tend in any way to prove the 
 commission or non-commission of any act. 
 
 § 9. In criminal cases. — Evidence of character is admis- 
 sible for the prisoner, who may show by general evidence that 
 his character is such that he is not likely to have committed 
 the offense which is imputed to him.' Pie can only support 
 that part of his character which is impeached, and only by 
 general evidence — not by evidence of his conduct on particu- 
 lar occasions. The proper form of the question is, "From 
 your knowledge of the prisoner, does he bear a good character 
 for honesty, humanity, etc.," as the case may be. Good char- 
 acter is evidence, but not strong, in favor of the accused.' It 
 
 1 Van Bokelein V. Berdell, 130 N. Y. sjoulkes v. Sellway, 3 Esp. 286; 
 141. Leeds v. Cook, 4 E^p. 256. 
 
 2 Cole V. Lake Shore &M. S. E. Co., eEdgington v. United States, 164 
 95 Mich. 77. U. S. 863. 
 
 3 Scott V. Samson, 8 Q. B. D. 491 ; ' Com. v. Hardy, 2 Mass. 317; Schal- 
 Wood V. Durham, 31 Q. B. D. 501. ler v. State, 14 Mo. 503; McDaniel v. 
 
 ■• Bamfield v. Massey, 1 Camp. 460 ; State, 8 Sm. & M. 401 ; Felix v. State, 
 Bate V. Hill, 1 C. & P. 100 ; Verrey 18 Ala. 720 ; Cancemi v. People, 2 
 V. Watkins, 7 C. & P. 308. Smith, 501. 
 
EELEVANOT AND MATERIALITY. 23 
 
 is in a case of doubt, or to rebut the legal presumption arising 
 from the possession of stolen articles, that evidence of good 
 character has most weight.^ It is now the general rule that 
 evidence of good reputation of the accused is competent to dis- 
 prove guilt.^ The prisoner's character cannot be put in issue 
 by the state, unless he opens the door by giving testimony to 
 it.' But it is not a conclusion of law that from his silence the 
 jury are to believe that he is a man of bad character.* When 
 a defendant has of his own accord put his character in issue, 
 the examination may extend to particular facts.' 
 
 (1) When the character of an individual in regard to any 
 particular trait or as developed under peculiar circumstances 
 is in issue, it is to be established by evidence of general rep- 
 utation and not by positive evidence of general bad conduct.* 
 When a particular trait of character is in issue, evidence of 
 character must be restricted to that trait.' Evidence that the 
 deceased was larger and more powerful than the defendant, 
 and had a general reputation of being quarrelsome and danger- 
 ous, is competent on the question of self-defense, especially if 
 his character in this respect was known by the defendant.' 
 Want of previous chastity may be proved, not only by gen- 
 eral reputation and specific acts of unchastity, but by evidence 
 which tends to show impure conversation and improper and 
 familiar associations with men.' That a given person is a 
 "dangerous man" may be shown by evidence of general repu- 
 tation with respect to those particular characteristics which 
 tend to establish the fact.^" And evidence of the reputation of 
 defendant, in a prosecution for murder, for peace and quietude, 
 is admissible on the question as to who was the aggressor in 
 the affray in which the hqmicide was committed." To author- 
 
 1 state V. Ford, 3 Strobh. 517 ; Epps 5 Com. v. Eobinson, Thacher's Critn. 
 
 V. ptate, 19 Ga. 103 ; Ediington v. Cas. 236. 
 
 United States, 164 U. S. 363. « Keener v. State, 18 Ga. 194. 
 
 estate V. Douglass, 44 Kan. 618; 'State v. Dalton, 27 Mo. 13; People 
 
 Hall V. State, 133 Ind. 317 ; State v. v. Josephs, 7 Cal. 129. 
 
 Howell, 100 Mo. 628. » Smith v. United States, 161 U. S. 
 
 3 People V. White, 14 Wend. Ill; 85. 
 
 Com. V. Webster, 5 Gush. 295. 9 Stewart v. Smith, 92 Wig. 76 ; Peo- 
 
 4 State V. O'Neal, 7 Ired. 251 ; Aok- pie v. Wallace, 109 Cal. 611. 
 
 iey v. People, 9 Barb. 609 ; People v. i" Columbus & R. R. Co. v. Christian, 
 
 Bodine, 1 Dana, 382. 97 Ga. 56. 
 
 11 State V. Gushing, 14 Wash. 537. 
 
2i KULES OF EVIDENCE. 
 
 ize a witness to testify to the general character of a person in 
 respect to his habits, he should first state that he is acquainted 
 with that person's general character in the particular to which 
 he deposes; but if his testimony shows that fact, whether 
 brought out on preliminary examination or examination in 
 chief, it will be sufficient.^ 
 
 (2) If on the trial of an indictment the defendant introduces 
 evidence of his good character prior to the alleged commission 
 of the crime charged, it is competent for the government to 
 prove that subsequently to that time his character had been 
 bad.^ "When character is put in issue, evidence of particular 
 facts may be admitted, but not where it comes in collaterally.' 
 The credit of a witness may be impeached by showing that he 
 was intoxicated at the time the events happened to which he 
 testifies,* though general character for intemperance is inad- 
 missible.' 
 
 §10. ImpeacMng evidence. — It is not necessary that the 
 character testified to should be proved to be that of the place 
 where he resides. Neighborhood is co-extensive with inter- 
 course.* A witness who is introduced to prove that another 
 witness is unworthy of credit should be examined as to the 
 general character of such witness for truth and veracity. The 
 proper inquiry is whether the witness knows the general char- 
 acter of the witness attempted to be impeached, and if so, what 
 is his general reputation for truth. Such witness must profess 
 to know the general reputation of the witness sought to be 
 discredited before he can be heard to speak of his own opinions 
 or of the opinions of others as to the reliance to be placed on 
 the testimony of the impeached witness.' The proper inquiries 
 are : "What is the general reputation of the witness as to truth ; 
 whether, from general reputation, the person testifying would 
 believe such witness under oath as readily as men in general; 
 or whether, from such general character, they would believe 
 the witness on oath.' On the cross-examination the inquiry 
 
 lElam V. state, 25 Ala. 53. « Chess v. Chess, 1 Pa. 33. 
 
 2 Com. V. Sackett, 23 Pick. 394. 'Phillips v. Kingsfield, 19 Me. 375; 
 
 3Com. V. Moore, 2 Dana, 403. See State v. Parks, 8 Ired. (N. C.) L. 296; 
 
 Sachet v. May, 3 id. 80. State v. O'Neal, 4 id. 88. 
 
 *Tuttlev. Russell, 2 Day, 301; Flem- « Johnson v. People, 3 Hill, ITO; 
 
 inp; V. State, 5 Humph. 564. State v. Howard, 9 N. H. 485. 
 
 SBriudle v. Mcllvaine, 10 Serg. & 
 Rawle, 282. 
 
EELEVANCY AND MATEEIALITT. 25 
 
 should be limited to the witness' opportunity for knowing 
 the character of such witness; for how long a time and how 
 generally such unfavorable reports have prevailed, and from 
 what sources they have been derived ; the origin of the reports 
 against him, and from whom and where he heard them. 
 
 § 11. Number of witnesses. — After an equal number of wit- 
 nesses have been sworn on each side in the impeaching or 
 supporting of the character of a party or witness, it is in the 
 discretion of the presiding judge whether a greater number of 
 Avitnesses shall be examined.^ 
 
 § 12. Proof of corroborating declarations. — Proof of dec- 
 larations of a witness made out of court, in corroboration of 
 testimony given by him on the trial of the cause, is, as a gen- 
 eral and almost universal rule, inadmissible. It seems, how- 
 ever, that to this rule there are exceptions, and that under 
 special circumstances such proof will be received ; as, when the 
 witness is charged with giving his testimony under the influ- 
 ence of some motive prompting him to make a false or colored 
 statement, it may be shown that he made similar declarations 
 at a time when the imputed motive did not exist. So in con- 
 tradiction of evidence tending to show that the account of the 
 transaction given by the witness is a fabrication of late date, 
 it may be shown that the same account was given by him be- 
 fore its ultimate effect and operation arising from a change of 
 circumstances could have been foreseen.^ 
 
 1 Bunnell v. Butler, 33 Conn. 65 ; People v. Doyell, 48 CaL 95 ; Graham 
 
 Bissell V. Cornell, 24 Wend. 354 v. McRaynolds, 90 Tenn. 673 ; United 
 
 2Eobb V. Hackley, 33 Wend. 50; States v. Neverson, 1 Mackey, 153; 
 
 State V. Thomas, 8 Strobh. 269. And Hayes v. Cheatham, 6 Lea (Tenn.), 1, 
 
 in State v. Dore, 10 Ired. 469, and 10 ; Stolp v. Blair, 68 111. 541 ; Hender- 
 
 State V. Dennis, 33 Vt. 158, it was held son v. Jones, 10 S. & R. 322 ; Craig y. 
 
 that, when a witness is impeached on Craig, 5 Rawle, 91 ; United States v. 
 
 the ground of bad character, evidence Holmes, 1 Clifif. 98, 105 ; Boyd v. First 
 
 may be given of previous statements National Bank of Oskaloosa, 25 Iowa, 
 
 made by the witness consistent with 255 ; Crooks v. Bunn, 136 Pa. St. 368 ; 
 
 his testimony on the trial. March v. Head v. State, 44 Miss. 731, 751; Nich- 
 
 Harrell, 1 Jones' L. (N. C.) 329 ; State ols v. Stewart, 20 Ala. 358 ; Sidelinger 
 
 v. Jacobs, 107 N. C. 873 ; State v. v. Bucklin, 64 Me. 371 ; Gibbs v. Lins- 
 
 Whilebon, 103 Mo. 17 ; Malone v. ley, 13 Vt. 308 ; Stolp v. Blair, 68 111. 
 
 Duff, 78 Md. 383; Hobbs v. State, 133 541 ; Com. v. Jenkins, 10 Gray, 485; 
 
 Ind. 404 ; Matter of Hesdra, 119 N. Y. Judd v. Brentwood, 46 N. H. 430. See 
 
 615 ; Greenl. Ev., § 469 ; Whart. Ev., Ses Gestce. 
 § 570; Gilbert v. Sage, 57 N. Y. 639; 
 
2G EDLES OF EVIDENCE. 
 
 § 13. Explaiuing contradictory statements. — Where it is 
 shown that a witness has made contradictory statements while 
 testifying on a former trial, the judge who presided at the first 
 trial may testify that the witness, on account of his ignorance 
 of the English language, did not seem to understand some of 
 the questions put to him.^ And it has been said that where 
 the cross-examination has tended to the manifest discredit of 
 a, witness, general evidence of good moral character is admis- 
 sible on re-examination or in rebuttal.^ Although in Phoenix 
 Ins. Co. V. Copeland ' it was held that, although a witness may 
 deny contradictory statements and acts which have been of- 
 fered to impeach him, the testimony of other witnesses to sus- 
 tain him as to such collateral matters is inadmissible. It is a 
 general rule, it seems, that where a witness has been impeached 
 by proof of contradictory statements, be may be recalled and 
 give his version of the conversation in which the alleged con- 
 tradictory statements were made.* But where he is called not 
 to explain or distinguish his denial of contradictory statements, 
 but merely to repeat it, the rule is different.' 
 
 § 14. Sustaining evidence. — Testimony to support the 
 character of a witness cannot be given in evidence unless the 
 credibility of the witness is impeached.* A witness called to 
 sustain the character of an impeached witness, testifying that 
 he has known him for a number of years, and that he knows 
 bis associates, but is not acquainted with his general character 
 for truth and veracity, will be allowed to testify that he will 
 believe him on his oath.'' It is not necessary that a man's 
 character should have been matter of discussion among his 
 neighbors to enable a witness to speak of his reputation for 
 truth.' Witnesses in his neighborhood acquainted with the 
 character of the impeached witness, although they had never 
 heard anything for or against his veracity, may testify that 
 they would believe him on oath.' An attempt to impeach a 
 
 1 Gibbs V. state (Tex. Or. App.), 30 v. Gary, 86 Iowa, 494 ; State v. Claire, 
 S. W. R. 919. 41 La. Ann. 1067. 
 
 2 Hadjo V. Gooden, 13 Ala. 718 ; Uler « Archer v. Helen, 70 Miss. 874. 
 
 V. Dewey, 71 N. C. 14 ; Wertz v. May, « Colt v. People, 1 Parker's Critn. 
 
 SI Pa, St. 274 ; Harrington v. Lincoln, Bep. 611. 
 
 4 Gray, 563 ; Sweet v. Sherman, 31 Vt. ' People v. Davis, 21 "Wend. 809. 
 
 23; Stamper v. Griffin, 13 Ga. 450. ^Crabtree v. Rile, 31 111. 180; Boon 
 
 8 86 Ala. 551. v. Weathered, 33 Tex. 675. 
 
 * State V. Reed, 89 Mo. 168 ; Hoover » Taylor v. Smith, 16 Ga. 7. 
 
EELBYANOY AND MATEEIALITY. 27 
 
 witness by asking another witness what was his character for 
 truth warrants the introduction of evidence to support his 
 character, though the answer to the question was that his 
 character was good.^ On the trial of an indictment for adul- 
 tery, if one act of adultery, committed by the defendant with 
 the woman named in the indictment, is proved by the testi- 
 mony of a witness whose credit is impeached, other instances 
 of improper familiarity between the defendant and the same 
 woman, not long before, may be given in evidence to corrob- 
 orate the witness.^ An attesting witness is a witness of the 
 law, and may be discredited by any one who examines him.' 
 The rule that a party cannot discredit his own witness by 
 proving that he had made contradictory statements at other 
 times does not apply to those cases where the party is under 
 the necessity of calling the subscribing witness to an instru- 
 ment.* 
 
 Any inquiries of a witness of one party, as to the general 
 reputation for truth and veracity of a witness introduced by 
 the other party, are to be considered as an impeachment of the 
 general character of the witness, so far as to open that sub- 
 ject to the introduction of evidence to sustain his good char- 
 acter, even though the answers are favorable to the witness ; 
 and the party calling such impeaching witnesses cannot, be- 
 cause he finds that he has been unsuccessful, limit the inquiry 
 to the witness to whom he has propounded interrogatories.* 
 In some jurisdictions it is held to be proper to support a wit- 
 ness by proof of a general good character for veracity, where 
 he has been impeached by proof of his contradictory state- 
 ments ; * and it is said that where the ve/acity of a witness for 
 the people is attacked hy the defendant on cross-examination, 
 the people may offer evidence of his good reputation for truth- 
 fulness;'' and that when on cross-examination a witness is 
 shown to have been a prostitute, the party calling her may 
 show her reformation.' Where a defendant in a criminal case 
 
 1 Com. V. Ingraham, 7 Gray, 46. * Com. v. Ingraham, 7 Gray, 46. 
 
 2 Cora. V. Merriara, 14 Pick. 41^ " Tipton v. State, 80 Tex. Cr. App. 
 
 3 Crowell T. Kirk, 3 De^. 355. See 530 ; Hollingsworth v. State, 53 Ark. 
 Jackson v. Variok, 7 Cow. 238. Con- 387. 
 
 tra, Whitaker v. Salisbury, 15 Pick. ' State v. Frog, 44 La. Ann. 65. 
 
 534; Patterson v. Schenck, 3 Green, 8 Carter v. Com. (Ky.), 13 S. W. Repw 
 
 434; Booker v. Bowles, 3 Blackf. 90. 931. 
 * Dennett v. Dow, 17 Me. 19. 
 
28 EULES OF EVIDENCE. 
 
 is called as a witness in his own behalf the state may give evi- 
 dence of his bad reputation.' General reputation is not usually 
 the growth of a day or month, but results In most cases from 
 a course of life or conduct for a period of time. Proof that 
 the reputation of a witness is now bad might justify the jury, 
 in the absence of countervailing evidence, in inferring, within 
 reasonable limits as to time, that it was bad before the day of 
 the trial. The trial judge may control the range of the in- 
 quiry, and it is for the jury to determine, upon all the circum- 
 stances, as to the weight of the evidence. 
 
 § 15. Sustaining a witness when impeached hy proof of 
 conviction for a crime. — When an attempt has been made to 
 impeach a witness by proof of his conviction of crime, it is the 
 right of the party calling him to support his testimony by 
 proof of his present good reputation for veracity. Thus, in 
 Gretz V. Fitchburg E. Co.,^ the plaintiff having testified as a 
 witness, the defendant put in evidence the record of his con- 
 viction in the United States district court of the crime of 
 falsely personating an officer. The plaintiff then offered evi- 
 dence of his character and present reputation for veracity, 
 which was excluded. In that case the court say : " We think 
 that the evidence of his reputation for truth should have been 
 admitted. . . , There is a clear distinction between this 
 case and those in which such evidence has been held inadmissi- 
 ble ; for instance, to rebut evidence of contradictory statements, 
 or where the witness is directly contradicted as to the princi- 
 pal fact by other witnesses. . . . Until the general char- 
 acter of a witness is assailed it cannot be fortified by evidence. 
 . . . When the evidence of conviction is admitted for the 
 purpose of impeaching his credit it always may be rebutted by 
 evidence of good character for truth." ' 
 
 § 16. Party calling a witness may show his contradictory 
 statements. — Although a party calling a witness shall not be 
 allowed to impeach his general character, yet he may show 
 that he has told a different story at another time.* Where a 
 witness gives evidence against the. party calling him, and is 
 an unwilling witness, or in the interest of the opposite party, 
 
 J Magee v. People, 139 111. 138. * Cowder v. Reynolds, 13 Serg. & 
 
 2 187 Mass. 77. Rawle, 281. 
 
 3 Com. V. Green, 17 Mass. 515. 
 
EELEVANOY AND MATERIALITY. 29 
 
 he may be asked by the party calling him, at the discretion of 
 the court, whether he has not, on a former occasion, given 
 different testimony as to a particular fact.' But the general 
 rule is that a party cannot be allowed to insist that his own 
 witness is not to be believed. He has the right, if surprised by 
 his testimony, to show by other witnesses that the facts tes- 
 tified to are otherwise. But he cannot impeach him directly or 
 indirectly.^ Thus, a party producing and examining a witness 
 will not be allowed to impeach him by evidence showing his 
 bias or interest in favor of the adverse party.' Sometimes 
 rather loose language has been indulged in to the general 
 effect that a party cannot impeach his own witness, but when 
 an examination is made as to the limits of the rule, the result 
 Avill be found to be that it only prohibits this impeachment in 
 three cases, viz. : (1) by the calling of witnesses to impeach 
 the general character of the witness ; (2) by the proof of prior 
 contradictory statements by him, and (3) by a contradiction 
 of the witness by another, where the only effect is to impeach 
 and not to give any material evidence upon any issue in the 
 case.* It seems that where an}' witness proves unwilling and 
 gives evidence which is a surprise to the party calling him, the 
 court may allow the party calling the witness to cross examine 
 him as to the statements ; ^ and where one party calls his op- 
 ponent as a witness he may be examined under the rules appli- 
 cable to cross-examination.' If a witness merely fails to 
 testify as expected, it does not authorize the party calling him 
 to prove that he had at some time made the statements which 
 the party desired him to state.' And in some jurisdictions 
 the practice has been so changed as to allow a party to im- 
 peach his own witness by showing contradictory statements 
 
 HBank of Northern Liberties v. Starkie, Ev. (9th ed.) 344 ; 2 Phill. Ev. 
 
 Davis. 6 Watts & Serg. 285. 981 ; 1 Greenl. Ev., § 442. 
 
 2 Hunt V. Fish, 4 Barb. 324 ; Burk- 6 McNerney v. City, etc., 150 Pa. St 
 
 halter v. Edwards, 16 Ga. 595 ; Hank- 611 ; Hall v. Chicago & C. R Co., 84 
 
 enstein v. Vantine, 152 N. Y. 30; Iowa, 311. 
 
 Cowell V. Cowell, 14 App. Div. 80. ^Hurlburt v. Hurlburt, 63 Vt. 667 
 
 8 In re Mellen's Estate, 56 Hun, 553. Batchelder v. Batchelder, 139 Mass. 1, 
 
 * Becker v. Koch, 104 N. Y. 394; 'People v. Mitchell, 94 Cal. 550 
 
 Lawrence v. Barker, 5 Wend. 301, Langford v. Jones, 18 Greg. 307 
 
 305; People v. Saflford, 5 Denio, 112; Hildreth v. Aldrich, 15 R. L 163 
 
 Thompson v. Blanchard, 4 N. Y. 303 ; Fisher v. Hart, 149 Pa. St. 332. 
 Coulter v. Express Co., 56 id. 585 ; 3 
 
30 EULES OF EVIDENCE. 
 
 after a foundation is laid therefor, as in case of a witness 
 called by the opposite party ,^ notwithstanding these statutes 
 allow the state to attack its witnesses in any manner except by 
 proving their bad character. A party who knows beforehand 
 that a witness is hostile and what he will probably swear to 
 cannot be allowed to impeach him by showing contradictory 
 statements.^ It seems it is only where the people are misled 
 or entrapped by a witness that they can ask him whether he 
 has not made certain contradictory statements, and if he denies 
 making them call other witnesses to contradict him.' 
 
 This rule has been changed in England so far as regards civil 
 proceedings, and a rule laid down which provides that "a party 
 producing a witness may, in case the witness shall, in the opin- 
 ion of the judge, prove adverse, contradict him by other evi- 
 dence, or, by leave of the judge, prove that he has made at 
 other times a statement inconsistent with his present testi- 
 mony ; but, before such last-mentioned proof can be given, the 
 circumstances of the supposed statement, suiBcient to desig- 
 nate the particular occasion, must be mentioned to the witness, 
 and he must be asked whether he made such statement or not." 
 In Ireland this enactment has been made to apply to both civil 
 and criminal cases.* It contains, however, an extraordinary 
 blunder, because it has made the contradicting of a witness on 
 material points by the party who calls him dependent in all 
 cases on his proving adverse in the opinion of the judge — by 
 adverse being meant hostile; whereas it can hardly have been 
 the intention of the legislature thus to narrow the old rule in 
 civil cases.^ 
 
 §17. Cross-examination as to collateral facts.— ^ No wit- 
 ness can be asked, on cross-examination, any question not rel- 
 
 iBennet v. State (Tex.); 13 S. W. Mon. 123, 134; Fairly v. Fairly, 38 
 
 Rep. 1005 ; Com. v. Welsh, 4 Gray, Miss. 280. 
 
 585; Chamberlain v. Sands, 27 Mo. ^Scott T.State,31 Tex.Cr. App.4D5. 
 
 458 ; Adams v. Wheeler, 97 Mass. 67 ; 3 Dixon v. State, 86 Ga. 757 ; Chisou 
 
 Brewer v. Porch, 17 N. J. L. 377 ; v. State, 70 Miss. 743 ; National Syrup 
 
 Stearns v. Merchants' Bank, 58 Pa. Co. v. Carlson, 42 111. App. 178. 
 
 St. 490 ; Eockwood v. Poundstone, 38 M9 & 20 Vict, ch. 103, sec. 25. 
 
 111. 199 ; Quinn v. State, 14 Ind. 589 ; 5 Greenough v. Eccles, 28 L. J. C. 
 
 Hunt V. Coe, 15 Iowa, 197; People v. P. 160. The questions discussed in 
 
 Jacobs, 49 Cal. 384 ; McDaniel v. State, regard to the rule will be found col- 
 
 53 Ga. 253; Young v. Wood, 11 B. lected in 2 PhilL & Amos, Ev., ch. 10, 
 
 §4. 
 
RELEVANCY AND MATEKIALITY. 31 
 
 evant to the issue, simply with a view to discredit him by other 
 evidence establishing the falsity of his answ'er.^ This rule ob- 
 tains where a party to a suit or prosecution takes the stand as 
 a witness. A witness cannot be asked a question, otherwise 
 irrelevant, in order to test his moral sense.^ Thus, if a witness, 
 on cross-examination answered in the negative the following 
 question: "Did you say to W., after he had left the stand, 
 that if you had been on the stand in his place when cross-exam- 
 ined you would have said something, even if it had been un- 
 true?" he cannot be contradicted by other evidence, because 
 the matter is collateral and does not tend to show any partial- 
 ity or bias on the part of the witness in favor of any one, or 
 any attempt to influence or induce W. to give false testimony 
 favorable to the defendant; but had it been of that character 
 it would have been competent to put in the contradictory evi- 
 dence. So if a witness is asked whether he has said to B. that 
 a bribe had been offered to him by the party by whom he was 
 called, and he denies having so said, evidence is not admissible 
 to prove that he did so state to B.^ 
 
 A witness may be cross-examined as to any collateral fact 
 which has any tendency to test either his accuracy or veracity, 
 but the party must be bound by the answers of the witness, 
 and cannot adduce proof in contradiction of such answers.* 
 And if in the course of the trial testimony is given without 
 objection tending to contradict such answers, it is not even 
 then competent for the party offering the first witness to give 
 independent proof tending to corroborate the witness as to 
 these collateral matters.' Thus, in respect to collateral matters 
 
 1 Wau - Kon - Chaw - Neek - Kaw v. Union P. R. Co. v. Reese, 56 Fed. Rep. 
 
 United States, 1 Morris (Iowa), 333, 288 ; People v. Hillhouse, 80 Mich. 580 ; 
 
 337 ; Marx v. People, 63 Barb. 618; People v. Tilley, 84 Cal. 651 ; Corn. v. 
 
 State V. Benner, 64 Me. 267, 287 ; Hourigan, 89 Ky. 305 ; Com. v. Jones, 
 
 Fletcher v. Boston, etc. R R., 1 Allen, 155 Mass. 170 ; Futch v. State, 90 Ga. 
 
 9; Johnson v. Wiley, 74 Ind. 233; 472. 
 
 Lawrence v. Barker, 5 Wend. 301 ; 2 Com. v. Show, 4 Cush. 593. 
 
 Radford v. Tesse, 2 Dev. & Bat. 39 ; 3 Attorney-General v. Hitchcock, 1 
 
 Jones V. McNeil, 2 Bailey (S, C), 466 ; Ex. 91. 
 
 Seavey v. Dearborn, 19 N. H. 351, 356 ; ^1 Greenl. Ev., § 447 ; 1 Wharton, 
 
 Cornelius v. Com,, 15 B. Mon. (Ky.), Ev., § 551 ; Plato v. Reynolds, 27 N. 
 
 539 ; Rosenbaum v. State, 33 Ala. 354 ; Y. 588 ; Carpenter v. Ward, 30 id. 243 ; 
 
 Spenoeley v. De Willott, 7 East, 108 ; Martin v. Windsor Hotel Co., 70 id. 
 
 1 Stark. Ev. 164 ; Henman v. lister, 103. 
 
 9 Jur. (N. S.) 601, 12 C. B. (N. S.) 776 ; » Stevens v. Beach, 3 Vern. 585. 
 
33 E0LE8 OF EVIDENCE. 
 
 drawn out by cross-examination, the answers of the witness 
 are in general to be regarded as conclusive. The exception to 
 this rule applies when the cross-examination is as to matters 
 which, though collateral, tend to show the temper, disposition 
 or conduct of the witness toward the cause or the parties. The 
 answers of the witness as to these matters may be contra- 
 d icted ; ^ that is to say, a witness cannot be cross-examined on 
 immaterial matters in order to contradict him and impeach his 
 credibility.^ It is not collateral but relevant to the main issue 
 to inquire into the motives of the witness, and a party who 
 examines him in regard to them is not bound by his answers, 
 but may contradict them.' The means afforded by a viva voce 
 examination of judging of the credit due to witnesses, espe- 
 cially where their statements conflict, are of incalculable advan- 
 tage in the investigation of truth, but not infrequently supply 
 the only true test by which the real character of the witnesses 
 can be appreciated.* On the cross-examination of a witness 
 the party should be allowed to show whatever may indicate 
 the probable relations between the witness and the party; and, 
 whether they be friendly or unfriendly, is always admissible 
 for the purpose of affecting the degree of credit which his evi- 
 dence should receive. A witness may be asked any question 
 tending to show that he is not impartial, and if he denies the 
 facts suggested he may be contradicted. So he may be re- 
 quired to explain whatever would show bias on his part.' 
 
 §18. Laying foundation for contradicting witness.— A 
 witness — other than a party — cannot be impeached by proof 
 of declarations made out of court without his having been first 
 examined in relation thereto.' The time when he made them 
 
 1 State V. Patterson, 3 Ired. (N. C.) pie v. Austin, 1 Park. Cr. Con. 154; 
 346. Bersch v. State, 13 Ind. 434 
 
 2 People V. McGinnis, 1 Park. Cr. < Schreiber v. Schreiber, 53 N. Y. 
 Rep. 387 ; Eosenbaum v. State, 33 Ala. State Rep. 436 ; Beuerlein v. O'Leary, 
 354; Blakey v. Blakey, id, 611 ; Orton 149 N. Y. 33. 
 
 V. Jewitt, 23 id. 19 ; Winter v. Meeker, 5 Matter of Mason, 60 Hun, 46, 38 
 
 35 Conn. 456 ; Cokely v. State, 4 Iowa, N. Y. State Rep. 533. 
 
 477; Morgan 7. Freese, 15 Barb. 353; 6 Young v. Brady, 94 Cal. 128; Mc- 
 
 Mitchum v. State, 11 Ga. 615; State Collock v. Dobson, 133 N. Y. 114; 
 
 -7. Thibau, 30 Vt. 100 ; Cornelius v. Aneals v. People, 134 III. 401 ; Hans- 
 
 Com., 15 B. Mon. 539. com v. Burmood, 35 Neb. 504; Gran- 
 
 5 Collins V. Stevens, 5 Gray, 438 ; ning v. Swenson, 49 Minn. 381. 
 Newcomb v. State, 37 Miss. 383 ; Peo- 
 
EELEVANCY AND MATEKIALITT'. 33 
 
 should be designated within a few days or weeks.' The con- 
 tradictory statements of a witness may be shown, though on 
 cross-examination he said he had no recollection of having 
 made the statements.^ 
 
 Where the witness' attention is called to statements alleged 
 to have been made at a certain time, it is not competent to 
 prove statements made at any other time. Thus, where a wit- 
 ness is asked whether he made certain statements shortly after 
 a former trial, it is error to allow it to be shown that he made 
 such statements shortly before such trial.' If a witness is 
 asked if he made a certain statement to a specified person, 
 without stating any time or place when or where such state- 
 ment was made, and the witness denies it, the testimony oi 
 the person to whom the alleged statement was made, that such 
 statement had been made to him, may be excluded.* I am of 
 the opinion that the occasion of the supposed conversation 
 ought to be pointed out with reasonable certainty on t'he 
 cross-examination of the witness whose credit is to be attacked 
 by proof of the contradictorjr statements.^ It cannot, of course, 
 be necessary that the precise date Should be indicated, as 
 that must often be difficult to ascertain, and, if ascertained, 
 would not be likely, of itself, to recall the circumstances to 
 the witness ; but the place could easily be indicated and the 
 occasion identified by a statement of the purpose of the inter- 
 view or other circumstances which would recall it to the mind 
 of the witness. 
 
 In the case of Rockwell v. Brown,* one Hopkins, a wit- 
 ness for the defendant, on his cross-examination was asked: 
 " Didi you tell Peter Eockwell at his house, last July, that 
 Brown told you that plaintiff stole his cow?" Hopkins an- 
 swered : " I did not tell him. I know what I did tell him." 
 Plaintiff then called Rockwell and asked him this question: 
 "Did Hopkins tell yoa in July last that defendant (Brown) 
 told him that plaintiff stole the defiendant's cow ? " This ques- 
 
 i-WoodEiver Bank v. Kelley, 29 Quinoy H. R. etc. Cow. Giiuse,.137 
 
 Neb. 590. 111. 264. 
 
 2Levy V. State, 88 Tox. Cr. App. * Koebler v. Buhl, 94 Mich. 496. 
 
 203i Heddles v. Chicago Ry. Co., opendletoa v. Empire S. D. Co., 19 
 
 77;"Wia 238; Billings v. State, 52 Ark. N. Y. 18. 
 
 303. * 36 N. Y. 207. 
 
 sjaokson v. Swope; 134 Ind. Ill; 
 3 
 
Si 
 
 EULES OF ETIDENOE. 
 
 tion was allowed to be answered, and the court said : "I think 
 there was suflBciettt indication of the place at which the con- 
 Tersation was had, and the whole answer of the witness points 
 unerringly to the conversation at his house of which Hopkins 
 had been inquired about." ' 
 
 If the inconsistent statements are in writing, the rules relat- 
 ing to proof of written documents apply .^ It has been said 
 that a party cannot show inconsistent statements after the 
 decease of the witness.' 
 
 Where a witness testifies that a certain act happened after a 
 certain slander had been uttered, but she could not remember 
 the date when the slander was uttered, it is competent to show- 
 that on a former trial the witness said that the act occurred 
 after the slander.* It has been said that a witness may be 
 asked whether on a previous occasion he has not made state- 
 ments inconsistent with his present testimony,^ even in prior 
 suits ; ' but unless the point covered by such alleged contradic- 
 tion be one material to the issue, the answer to such question 
 cannot be contradicted.'' The usual test of a collateral ques- 
 
 1 Gaffney v. People, 50 N. Y. 416, 
 423; Conrad v. Griffey, 16 How. (U. S.) 
 38, 46; Unis v. Charlton's Adm'r, 13 
 Grat. 484; Mathis v. State, 35 Ga. 24; 
 People V. Devine", 44 Cal. 452 ; State 
 V. Kinley, 43 Iowa, 294; Richardson 
 V. Kelley, 85 111. 491; Brubaker v. 
 Taylor, 76 Pa. St. 83 ; State v. Angelo, 
 32 La, Ann. 407; State v. Glynn, 51 
 Vt 577 ; State v. Staley, 14 Minn. 105 ; 
 Hill V. Gust, 55 Ind. 45; Spaunhorst 
 V. Link, 46 Mo. 497 ; Bradford v. Bar- 
 clay, 39 Ala. 33 ; Higgins v. Carlton, 
 28 Md. 115; Lonard v. Kingsley, 50 
 Cal. 628; Ay res v. Duprey, 27 Tex. 
 593; McOamant v. Roberts, 80 Tex. 
 316 ; Jones v. State, 65 Miss. 179 ; Mc- 
 CuUoch V. Dobson, 133 N. Y. 114; 
 Frazier v. State, 42 Ark. 70 ; Young 
 V. Brady, 94 CaL 128 ; Hunter v. Gibba, 
 79 Wis. 70. 
 
 2 1 Greenl. Ev., §§ 463, 464, 465. 
 
 3Ayers v. Watson, 132 U. S. 394; 
 Craft V. Com., 81 Ky. 250; United 
 States V. White, 5 Cranch, C. C. 457 ; 
 Com. V. Hawkins, 3 Gray, 403 ; Hedge 
 
 V. Clapp, 23 Conn. 622 ; Robinson v. 
 Hutchinson, 31 Vt. 443; Cook v. 
 Brown, 34 N. H. 460 ; New Portland 
 V. Kingfield, 55 Me. 172. 
 
 * Elmer v. Fessenden, 154 Mass. 427. 
 
 ' Shield V. Cunningham, 1 Blackf, 
 86 ; Sloan v. New York Cent. R Co., 
 45 N. Y. 125 ; Keerans v. Brown, 68 
 N. C. 43; Welch v. Abbot, 73 Wis. 
 512; Peck v. Ritchey, 66 Mo. 114. 
 
 (■ Toplitz V. Hedden, 146 V. S. 253. 
 
 7 United States v. White, 5 Cranch, 
 C. C. 38, 42; Washington T. State, 63 
 Ala. 189; Smith v. Royalton, 53 Vt 
 604 ; Beardsley v. Wildnian, 41 Conn. 
 515; Shurtleff v. Parker, 130 Mass. 
 293 ; Henderson v. State, 1 Tex. Ap)1. 
 482 ; People v. Furtado, 57 Cal. 34"k 
 Schlaer v. Winpenny, 75 Pa. St 331, 
 325; State v. Grouse, 86 N. C. 617: 
 Combs V. Winchester, 39 N. H. 13; 
 State V. Staley, 14 Minn. 105; Schell 
 V. Plu mb, 55 N. Y. 592 ; State v. Kings- 
 bury, 58 Me. 238 : Hamilton v. Holder, 
 15 NewBruns. 232; Gilbert v. Good- 
 erham, 6 C. P. (U. C.) 89; Beemer 
 
EELEVANCY AND MATEEIALIIY. u5 
 
 tion is whether the cross-examining party could prove the fact 
 as part of the case.^ 
 
 The admissions of a party against interest may always be 
 shown without first laying a foundation as for impeachment, 
 and the rule that a foundation must be first laid before a per- 
 son's statement out of court can be shown has no application 
 where the witness is a party to the action.^ And it has been 
 said that this rule extends to a defendant in a criminal case 
 who testifies in his own behalf. 
 
 § 19. When reputation is in issue. — When the plaintiff's 
 general character is involved in the issue, its nature may be 
 shown, and proof of it is not confined to reputation only. 
 Thus, where the answer in an action puts in issue the good 
 character of the plaintiff, the witnesses for plaintiff may tes- 
 tify that in their individual opinions the plaintiff's character 
 is good ; that the witnesses know nothing to the contrary.' 
 
 §20. Mode of proving reputation in other cases Evi- 
 dence of general reputation as to a gambling house or disor- 
 derly house is not admissible, but such reputation may be 
 proved by proof of the character of the women who frequent 
 such a house, and the character and conduct of the men, and 
 the effect upon the neighborhood. The character of the per- 
 sons who are in the habit of visiting the house may be proved 
 by reputation.'' Eeputation in the family is admissible on the 
 question of whether the relation between a man and woman 
 who lived together for years was that of marriage.' In an ac- 
 tion for malicious prosecution, evidence of plaintiff's bad char- 
 acter is admissible upon the general issue in behalf of defendant 
 
 V. Kerr, 23 Q. B. D. (U. C.) 557; Alex- s Graves v. Gilchrist, 39 N. Y. State 
 
 ander v. Kaiser, 149 Mass. 331 : Lewis Eep. 638. 
 
 V. Barker, 55 Vt. 21 ; State v. Hawn, < United States v. Stevens, 4 Cranch, 
 
 107 N. C. 810 ; Johnson v. State, 33 C. C. 341 ; People ex rel. Eakins v. 
 
 Tex. App. 306 ; Jones v. State, 67 Miss. Roosevelt, 16 App. Div. 364 ; People 
 
 111; Franklin v. Franklin, 90 Tenn. v. Hulett, 61 Hun, 630, 39 N. Y. State 
 
 44; Com. v. Hourigan, 89 Ky. 305; Eep. 646. But see State v. Mack, 41 
 
 People V. Dye, 75 Cal. 108 ; Livingston La. Ann. 1079 ; State v. Chisenhall, 
 
 V. Roberts, 18 Fla. 70 ; State v. Good- 106 N. C. 676 ; People v. Fick, 89 Cal. 
 
 win, 33 W. Va. 177. 144; State v. Sibley, 180 Mo. 519, 1 
 
 1 Hildeburn v. Curran, 65 Pa. St. 59. Fed. & St. Cr. Eep. 133. 
 
 2 Meyer V. Campbell, 48 N. Y. State 5 Arnold v. CheesebrQjigh, 46 Fed. 
 Rep. 666; Rose v. Otis, 18 Colo. 59. Rep. 700; White v. White, 83 Cal. 437. 
 
36 RULES OF EVIDENCE. 
 
 where plaintiff's allegations of damage are general.' But suet 
 reputation cannot be established by proof of specific acts.^ In 
 an action for libel or slander, evidence of plaintiff's character 
 in the vicinity in which she lived is not admissible in mitigation 
 of damages unless pleaded.' But where it is in issue, evidence 
 of general character is not confined to reputation only.* Stories 
 told of plaintiff after the publication of the libel are inadmis- 
 sible.' Evidence of general reputation for chastity of the prose- 
 cutrix for seduction under promise of marriage is admissible 
 in corroboration of her testimony as to her previous chaste 
 character.^ To justify evidence, on a murder trial, of the dan- 
 gerous character of the deceased, it must be shown that he 
 made hostile demonstrations against the accused at the time 
 of the homicide.' 
 
 § 21. Evidence to show Mas or corrupt motives.— A party 
 may adduce evidence to show that a witness on the other side 
 has given his evidence in the particular case from some cor- 
 rupt or indirect motive. Thus, he may show that the witness 
 has offered bribes to others to give evidence, or that some- 
 one has bribed him (though not that someone has offered 
 ineffectually to bribe him),^ or that someone has threatened 
 him,^ or that he has been induced to give evidence by some in- 
 direct motive, as malice" or revenge." The mere attempt by 
 a witness to dissuade another from giving evidence on the 
 other side does not come within the rule. So there can be no 
 reason for holding that the witness must first be examined as 
 to his hostility, and that then, and not till then, witnesses may 
 be called to contradict him ; because it is not a case where a 
 party against whom the witness is called is seeking to dis- 
 credit him by contradicting him. He is simply seeking to dis- 
 
 1 Taylor v. Dominiok, 36 S.C. 368. v. Taylor, 44 La. Ann. 783; State y. 
 
 ^ Wolf V. Perryman, 83 Tex. 12. Mitchell, 41 id. 1073. But see King v. 
 
 3 Ward V. Dean, 56 Hun, 685, 32 N. State, 55 Ark. 604; State v. Roaey 47 
 
 Y. State Rep. 370. Minn. 47. 
 
 * Graves v. Gilchrist, 29 N. Y. State 8 Attorney-GeneraJ v. Hitchcock, 1 
 
 Rep. 638. Ex. 91, 94, 103. 
 
 ■i Morrison v. Press Pub. Co., 133 sjieihuish v. Collier, 15 Q. B. 878. 
 
 N. Y. 538, 38 N. Y. State Rep. 357. i" Attorney-General v. Hitchcodt, 1 
 
 estate v. Lockerby, 15 Crim. Law Ex. 91, 94, 100. 
 
 Mag. 915. ^ " B. V. Yewins, 3 Camp. 637. 
 
 'Perry v. State, 94 Ala. 35 j State 
 
RELEVANCY AND MATERIALITY. 37 
 
 credit him by showing his hostility and malice ; and as that 
 may be proved by any competent evidence, there can be no 
 reason for holding that he must first be examined as to his 
 hostility.^ Cross-examination as to a witness' bias, hostility or 
 interest is not cross-examination as to collateral matter.^ Bias 
 of a witness is material ; and a party cross-examining a witness 
 as to statements or acts showing bias is not concluded by the 
 answers of the witness, and may contradict the testimony by 
 other witnesses.' Thus, if J. on cross-examination denies that 
 his brother — the party on whose behalf he is called — was 
 present at a transaction, his presence at which would show an 
 admission of or acquiescence in a fact, the party so cross- 
 examining is not bound by the answer, but may give evidence 
 to the contrary.* It cannot be shown for the purpose of im- 
 peachnient that an offer of a bribe has been made to a witness, 
 where it is not ofiPered to show that it was accepted by him,* 
 although it is error not to allow a party to prove that a wit- 
 ness for the other party has said that he was working for a re- 
 ward offered by the party calling him.' 
 
 Limitation of rule. — Evidence to show the hostile feelings 
 of a witness when it is alleged to exist should be direct and 
 positive, and not remote and uncertain, for the reason that 
 the trial of the main issue in the case cannot be properly sus- 
 . pended to make out the case of hostile feeling by mere cir- 
 cumstantial evidence from which such hostility or malice may 
 or may not be inferred.'' To disprove a witness' denial of hos- 
 tile feeling, some act or declaration indicating that he enter- 
 tained such a feeling must be shown; and it is not enough to 
 show that the witness might have reason for such a feeling.' 
 
 § 22. Declarations of absent or deceased person to im- 
 peach his testimony. — It seems that after an attested in- 
 
 iCookv. Brown, 34 N.H. 460; Starr 78 Tex. 387; Tolbert v. Burke, 89 
 
 V. Oragin, 34 Hun, 177 ; Hedge v. Olapp, Mich. 133 ; State v. Jones, 106 Mo. 303. 
 
 23 Conn. 363; Day v. Stickney, 14 < Sitterly -y. Gregg, 90 N. Y. 686. 
 
 Allen, 255 ; New Portland v. King- 5 Cheatam v. State, 67 Miss. 335. 
 
 field, 55 Me. 173; People v. Brooks, 6 HoUingsworth v. State, 53 Ark. 
 
 131 N. Y. 831. 387. 
 
 2Crumpton v. State, 53 Ark. 273; 'Schultz v. Third Ave. R Co., 89 
 
 People v. Murray, 85 Cal. 350; Eng- N. Y. 242; People v. Brooks, 131 id. 
 
 land V. State, 89 Ala. 76. 321. 
 
 3 Matter of Will of Snelling, 136 8-Wischstadtv.'Wischstadt,47Minn. 
 
 N. Y. 515 ; Texas & P. E. Co. v. Brown, 358 ; Holston v. Boyle, 46 id. 433. 
 
B8 RULES OF EVIDENCE. 
 
 strument has been sought to be proved by evidence of the 
 handwriting of a deceased subscribing witness, the adverse 
 party may prove declarations of the alleged subscribing wit- 
 ness, inconsistent with the attestation, by way of impeachnlent 
 thereof. But where such impeaching evidence is offered, it is 
 competent to corroborate his testimony by showing that he 
 had made declarations consistent with the attestation. Proof 
 of the signature of a subscribing witness is presumptive evi- 
 dence of the truth of everything appearing upon the face of 
 the instrument relating to its execution, as it is presumed the 
 witness would not have subscribed his name in attestation of 
 that which did not take place. But this presumption may be 
 rebutted ; and hence the propriety, and even necessity, of per- 
 mitting him to be impeached in the usual mode, as if he were 
 living and had testified at the trial to what his signature im- 
 ports.' The former declarations of*a deceased person are ad- 
 missible to impeach him, where the record of his testimony 
 on a former trial is introduced in evidence,^ But it is said to 
 be incompetent for the purpose of impeachment to show that 
 hie had declared after testifying that he was mistaken in his 
 testimony ; ' and that the death of the witness does not alter 
 the rule that in order to impeach a witness by contradictory 
 statements made at other times a proper foundation must be 
 laid therefor.* 
 
 1 Matter of Hesdra, 119 N. Y. 615; 'Patterson v. Dushane^ 137 Pa. 
 Losee V. Loses, 2 Hill, 613. St 23. 
 
 2 Avery v. Wateon, 132 U. a 394. * Pruitt v. State, 93 Ala. 41 ; Eppert 
 
 V. Hall, 133 Ind. 417. 
 
CHAPTER III. 
 
 EVIDENCE UNDEB PARTICULAR PLEADINGS. 
 
 1. Preliminary observations. 
 
 § 37. Attacking an instrument set up 
 
 2. Evidence must be within the 
 
 as a counter-claim. 
 
 ' issu& 
 
 88. Proof of defenses arising after 
 
 3. Custom. 
 
 suit brought. 
 
 4. Title in a stranger. 
 
 39. Explaining inconsistencies be- 
 
 5. Failure to deny — Effect of. 
 
 tween testimony and plead- 
 
 6. Promise to pay note after dis- 
 
 ing. 
 
 honor — Proof of protest 
 
 40. Conspiracy. 
 
 7. Under plea of a statute; 
 
 41. Excuse. 
 
 8. General issue. 
 
 43. Modification. 
 
 9. Res adjudicata. 
 
 43. Assignment 
 
 10. Limitations. 
 
 44. Two theories. 
 
 11. Discharge from debts. 
 
 45. Documents. 
 
 12. Release. 
 
 46. Evidence of counter-claim un- 
 
 13. Matter of inducement — Libel 
 
 der averment of set-ofiE. 
 
 and slander. 
 
 47. Meaning of characters, etc. 
 
 14. Special damage. 
 
 48. Incapacity. 
 
 15. Trespass. 
 
 49. Statute of frauds. 
 
 16. Negligence. 
 
 50. Jurisdiction, 
 
 17. Composition — Payment — In- 
 
 51. Title. 
 
 fancy, etc. 
 
 63. Accounts stated. 
 
 18. Illegality. 
 
 53. Breach of condition by plaint- 
 
 19. Performance. 
 
 iff. 
 
 20. Warranty of title. 
 
 54. Consideration — Want of. 
 
 21. Ownership, 
 
 65. Contract — Execution, etc. 
 
 22. Valua 
 
 66. Conditions. 
 
 23. Fraud. 
 
 67. Damages. 
 
 24.- Contract with a common car- 
 
 68. Duly, etc. 
 
 rier. 
 
 59. Estoppel. 
 
 25. Actions on judgments. 
 
 60. Agency. 
 
 26. Breach. 
 
 61. Evidence — Effect of prior pro- 
 
 27. Negotiable paper. 
 
 ceedings upon. 
 
 28. Work and materials. 
 
 62. Evidence where pleading is in- 
 
 29. Sales of personal property. 
 
 sufBcient 
 
 30. Money had and received. 
 
 63. Adequate remedy at law. 
 
 31. Actions against receivers, etc. 
 
 64. Authority. 
 
 32. Partnership actions. 
 
 65. Contingent allegations. 
 
 33. Public oflBcers. 
 
 66. Averment of a conclusion dif- 
 
 34. Married women. 
 
 ferent from the facts al- 
 
 35. Heirs and next of kin. 
 
 leged. 
 
 36. Admission in pleading. 
 
 67. Fiction of law. 
 
40 
 
 EULES OF EVIDENCE. 
 
 68. General allegations. 
 
 69. Mistake of fact. 
 
 70. Evidence under bill of particu- 
 
 lars. 
 
 § 71. Evidence to prove irrelevant 
 averments. 
 73. Evidence of contract. 
 73. Federal court held in a state. 
 
 § 1. Preliminary observations. — Pleadings and a distinct 
 issue are essential in every system of jurisprudence, and there 
 can be no orderty administration of justice without them. If 
 a party could allege one cause of action and then recover uj)on 
 another, his complaint would serve no useful purpose, brrt 
 rather ensnare and mislead his adversary.^ The relief must be 
 consistent with the case made by the complaint and 'embraced 
 within the issue.^ All facts which, by the form of the plead- 
 ings in any action, are affirmed on one side and denied on the 
 other, are "facts in issue." ' But in actions in which there are 
 no pleadings, or in which the form of the pleadings is such that 
 issues are not joined between the parties, all facts from the 
 establishment of which the existence, non-existence, nature or 
 extent of any right, liability or disability asserted or denied in 
 any such case would by law follow are "facts in issue." In the 
 absence of objections to the sufficiency of a complaint, it is the 
 duty of the trial court to give the plaintiff the benefit of any 
 cause of action established by the evidence ; * and upon appeal 
 the appellate court will consider the cause of action disclosed 
 by the evidence, without regard to any objections to the suf- 
 ficiency of the pleadings which were not made in the trial 
 court.' 
 
 §2. Evidence must Ibe within the issue. — The first rule 
 governing the production of evidence is that the evidence 
 
 1 Andrews' Steph. PI. — ; Dun- 
 ham v. Boyd, 64 Conn. 397; Gibson 
 V. Kelly, 15 Mont 417; Mackey v. 
 Mutual Aid C. & I. Co., 94 Ga. 104; 
 Chapell V. Schmidt, 104 Cal. 511. 
 
 2 Truesdell v. Bourke, 145 N. Y. 613 ; 
 Stone V. Nelley, 43 Neb. 567 ; Hunt v. 
 Vanderbilt, 115 N. C. 659 ; Jones v. 
 Goodbar, 60 Ark. 183 ; Banner v. Phoe- 
 nix T. & T. Co., 80 Hun, 413 ; Barron 
 
 'V. Chicago, St P., M. & O. E. Co., 89 
 ■Wis. 79. 
 
 3 Re Tottenham (1896), 1 Ch. 638; 
 Schutz V. Morette, 146 N. Y. 187; 
 
 Shenandoah M. & M. Co. v. Morgan, 
 106 Cal. 409; Owen v. Mead, 104 Cal. 
 179. 
 
 ^Tomlin v. Bass Furnace Co., 93 
 Ga. 594 ; Dew v. Eeid, 53 Ohio St 96; 
 West V. Norwich U. F. Ins. Co., 10 
 Utah, 443. 
 
 5 Clarke v. Kelsey, 41 Neb. 766 ; Mc- 
 Goldrick V. Willits, 53 N. Y. 612; 
 Southwick V. First Nat Bank of 
 Memphis, 84 id. 420 ; Cowing v. Alt- 
 man, 79 id. 167 ; Knapp v. Simon, 96 
 id. 284. 
 
EVIDENCE TJNDEE PAETICfULAE PLEADINGS. 41 
 
 offered must correspond with the allegations and be relevant 
 to facts put in controversy by the pleadings.' It is a fuiida- 
 'tnental rule that the judgment shall be "secundum allegata et 
 iprdbata," and any departure from that rule is certain to pro- 
 duce surprise, confusion and injustice. To allow a party to 
 recover upon a different cause of action from that stated in 
 his pleading is to ignore the whole office of a pleading and 
 compel the parties to try their cases in the dark, informing 
 them for the first time after the wrong is irremediable of the 
 issue which they should have tried. There are cases which, 
 having proceeded in disregard of the pleadings, and wherein 
 the whole cause has been presented by both parties in their 
 proofs without objection, in which an amendment has been 
 allowed, after the evidence is closed, to conform the pleadings 
 to the proofs. So, also, where the court can see that a trial has 
 been had upon the real issue without objection, it will not dis- 
 turb a recovery upon the ground that it was not embraced in 
 the pleadings^ but when an objection has been properly taken, 
 or an exception presents the question, it is fatal to a recovery 
 that it does not conform in all respects to the allegations of 
 the pleadings.^ 
 
 Evidence not within the issue made by the pleadings is ir- 
 relevant and incompetent even in equity cases.' It may also 
 be laid down as a general rule, that, in criminal as in civil cases,, 
 the evidence shall be confined to the point in issue. In crim- 
 inal proceedings it has been observed* that the necessity is 
 stronger, if possible, than in civil cases, of strictly enforcing 
 this rule ; for where a person is charged with an offense it is 
 of the utmost importance to him that the facts laid before the 
 jury should consist exclusively of the transaction which forms 
 the subject of the indictment and matters relating thereto, 
 which alone he can be expected to come prepared to answer. 
 
 1 Nickerson v. Gould, 83 Me. 513 ; 2 Romeyn v. Sickles, 108 N. Y. 050, 
 
 Lowe V. Greenwood, 30 III. App. 184; 13 N. Y. State Eep. 864. 
 
 Benedict v. Seventh Ward R. Co., 51 3 Podge City v. Wright, 48 Kan. 
 
 Hun, 11, 34 N. Y. State Rep. 169; 667; Scully v. Book, 3 Wash. 182; 
 
 Kingman, P. & W. R Co. v. Quinn, Equitable Bank v. Classen, 51 N. Y. 
 
 45 Kan. 477; Newby v. Myers, 44 State Rep. 503 (1893); Waterman v. 
 
 Kan. 477 ; Tr'aver v. Shaefle, 33 Neb. Shipman, 47 N. Y. State Rep. 418 ; 
 
 531. Richardson v. Davis, 70 Miss. 319. 
 
 * 3 Russell, by Greaves, 773. 
 
42 KULES OF EVIDENCE. 
 
 Of course, all evidence directly bearing on &nj offense which 
 can be, and is, under the indictment before the jury, made the 
 subject of inquiry, is admissible. So, also, and almost equally 
 as a matter of course, evidence may be given, not only of the 
 actual guilty act itself, but of other acts so ,closely connected 
 therewith as to form part of one chain of facts, which could 
 not be excluded without rendering the evidence unintelligible. 
 It is never essential to prove surplusage, and when such proof 
 is offered it should be rejected. The term "surplusage" com- 
 prehends whatever may be stricken from the record without 
 affecting the issue. But it is not every immaterial or unneces- 
 sary allegation that is surplusage.^ 
 
 § 3. Custom. — Evidence of a custom or usage is not admis- 
 sible without an allegation in the pleadings of the existence of 
 the custom.^ 
 
 § 4. Title in a stranger. — In an action for wrongful con- 
 version as in the detinet, that is to say, where an action is based 
 solely upon a wrongful detention, a general denial puts in issue 
 as well plaintiff's property in the chattel as the wrongful de- 
 tention, and a defendant under such plea may show title in a 
 stranger, although he does not connect himself with such title. 
 But the rule is entirely different where the action is for the 
 wrongful taking of the property. In the latter case, under a 
 general denial without more, the defendant cannot show title 
 in a stranger. Property in a third person w6uld be no defense 
 to such an action.' Alleging title out of plaintiff is no de- 
 fense.* In Griffin v. Long Island E. Co.' and in Stowell v. 
 Otis," the court points out the difference between an action for 
 wrongful detention and one for wrongful taking. 
 
 § 5. Failure to deny — Effect of. — When the complaint 
 states a clear cause of action and there is no sufficient denial 
 set up in the answer, the plaintiff is not required to prove any- 
 thing, nor the defendant at liberty either to deny the existence 
 
 1 Grace v. Dempsey, 75 Wis. 313. 1 ; Klinger v. Bondy, 36 Hun, 601; 
 
 2 Moak's Van Santvoord's PI. 563 ; Emerson v. Thompson, 59 Wis. 619 ; 
 Morowslii V. Rohrig, 53 N. Y. State Millbanks v. Jones, 127 N. Y. 378. 
 Rep. 220 ; Lindley v. Waterloo First * Wlieeler v. Lawson, 103 N. Y. 45. 
 Nat. Bank, 76 Iowa, 629 ; Abbott's Tr. » 101 N. Y. 348. 
 
 Br. PL, §178. 6 71N. Y. 36, 
 
 3 Stonebridge v. Perkins, 141 N. Y. 
 
EVIDENCE UNDKE PABTIOULAE PLEADINGS. 43 
 
 of the facts constituting the cause of action or to prove any- 
 state of facts inconsistent with such admission.^ It is not suf- 
 ficient to set up an agreement in the answer different from the 
 one stated in the complaint.^ 
 
 § 6. Promise to pay note after dishonor — Proof of pro- 
 test. — Under a complaint against an indorser of a promissor}"- 
 note alleging a demand, non-payment and notice of dishonor, 
 the plaintiff may show a promise to pay by the indorser after 
 maturity of the note and with full knowledge of real or alleged 
 laches on the part of the holder on giving notice of dishonor. 
 It is elementary law that, as a general rule, in order to charge 
 the indorser of a promissory note, it is necessary to allege and 
 prove presentment of the note at maturity, and due notice to 
 the indorser of its non-payment. There are, however, cases 
 in which it is not necessary to give notice of dishonor to an 
 indorser, and in such case it is not necessary either to allege 
 or prove such notice ; for instance, where the indorser before 
 maturity has waived notice, or where he has taken an assign- 
 ment of the maker's property, or in which other circumstances 
 exist which excuse notice. In all such cases the complaint 
 must contain a statement of the facts; and as notice cannot be 
 alleged, it is necessary to allege the reasons why notice was 
 not given, and the facts relied upon to excuse such notice. 
 But an unconditional promise to pay a bill or note, made by 
 the indorser after dishonor and with full knowledge of real or 
 alleged laches, is admissible as legal evidence of due present- 
 ment and notice. What the pleader is called upon to allege 
 in the complaint are the substantive facts constituting the 
 cause of action, and not the evidential facts from which the 
 existence of the substantive facts are to be inferred.' 
 
 § 7. Under plea of a statute. — An exception in a statute 
 must be negatived in pleading, while a proviso need not ; and 
 this, it is said, is on the ground that an exception by proviso 
 is matter of defense that a party must show to relieve him 
 
 1 Conner v. Keese, 105 N. Y. 643; 2 Paige v. Willet, 38 N. T. 28; 
 
 Tell V. Beyer, 38 N. Y. 161 ; Abbott's Fleischman et al. v. Stern, 90 id. 114. 
 
 Tr. Br. PI., § 561 ; Moore v. Murdock, s Clark v. Tryon, 63 N. Y. State 
 
 26 Colo. 514 ; Tumlin v. Bass Furnace Eep. 123 (June, 1893). 
 Co., 93 Ga. 594. 
 
44 EULES OF EVIDENCE. 
 
 from liability.' "Where an exception is incorporated in the 
 body of the clause of the statute, he who pleads the clause 
 ought to plead the exception. But where there is a clause for 
 the benefit of the pleader, and afterwards follows a proviso 
 which is against him, he may plead the clause and leave it to 
 his adversary to show the proviso.^ When the offense is 
 brought within the enacting clause, and the justification comes 
 in by way of proviso or exception in the first case, it is matter 
 of defense to be shown by the defendant ; in the other case 
 the exception must be negatived.' When it is needful for a 
 party tp allege a fact, it is upon him to prove it. Where one 
 party charges another with omission or breach of duty, he 
 who makes the charge must prove it, though it involves a 
 negative. There is an exception to this, when the subject- 
 matter of the negative and the means of proof thereof are pe- 
 culiarly within the knowledge and power of him who claims 
 to be within it; as in the case of a violation of the excise laws, 
 he who by license to sell strong drinks is excepted from the 
 prohibition of these laws must show his license, as he, more 
 than any other, knows that he has it, and has it at his hand in 
 duly authenticated form.* 
 
 § 8. General issue. — Under every rational logical system of 
 pleading the defendant must, under a general denial, be per- 
 mitted to controvert by evidence everything which the plaint- 
 iff is bound in the first instance to prove to make out his cause 
 of action.' Under the general issue may be proved anything 
 which goes to show that plaintiff never had a cause of action, 
 by negativing any matter of fact alleged or necessary to be 
 proved by plaintiff. A general denial does not let in evidence 
 that the party was a })onafide purchaser for value without no- 
 tice.^ The fact that the action was prematurely commenced 
 may be shown under a general denial.' So in an action upon 
 an account stated the defendant may disprove the settlement 
 
 1 Spiers v. Parker, 1 Term Eep. 141. 6 Weaver v. Harden, 49 N. Y. 286 ; 
 
 2 Jones V. Axen, 1 Ld. Raym. 119. Abb. Tr. Ev. 715 ; Boone v. Childs, 10 
 sKingv. Bryan, 2 Str. 1101. Pet. 177, 211; Sugden on V. & P. 
 4 Potter v. Deyo, 19 Wend. 361 ; Har- 1087. 
 
 ris V. White, 81 N. Y. 533. • TLandis v. Morrissey, 69 Cal 83; 
 
 6 Robinson v. Frost, 14 Barb. 536; Mack v. Burt, 5 Hun, 38; Wilder v. 
 
 Wimple v. MoMauus, 39 N. Y. State Colby, 134 Mass. 377. 
 Rep. 141 ; Abbott's Tr. Br. PI., § 558. 
 
EVIDENCE UNDER PAETIODLAE PLEADINGS. 45 
 
 of the account, but not that the account was false or erro- 
 neous.^ y 
 
 Facts showing that plaintiff had an adequate remedy at law 
 cannot be proved as a defense to the action under a general 
 denial.^ Under a denial of the contract alleged in the com- 
 plaint, the defendant may show that the contract was never 
 delivered. He may also show the contract really made, or the 
 part which differs from that alleged.' 
 
 "Where the answer is a general denial the plaintiff cannot 
 prove a contract which is invalid under the statute of frauds.* 
 It is said that where plaintiff must allege and prove per- 
 formance, a general denial lets in evidence of breach ; ' and 
 where the complaint alleges consideration, the want of con- 
 sideration may be shown under a general denial.* But a gen- 
 eral denial does not let in evidence of want of consideration,- 
 in the case of negotiable paper or a sealed instrument, where 
 they are so pleaded as to import a consideration ; ' nor does a 
 general denial let in evidence of a failure of consideration,' nor 
 excuse of non-performance,' nor that plaintiff prevented acts of 
 defendant which would have constituted a defense." A gen- 
 eral denial will let in evidence of fraud where the adverse 
 party has pleaded aiflrmatively good faith,!^ and in an action 
 for fraudulent concealment that the fact was communicated 
 by defendant to plaintiff.'^ "Where the defense is a general 
 
 1 Field V. Knapp, 108 N. Y. 87 ; Co., 89 Pa. St 331 ; Gaverly v. Mc- 
 
 Fuller V. Board of Com'rs, etc., 3 Owen, 123 Mass. 574. 
 
 Kan. 445; Barker v. Hoff, 53 How. « Butler v. Edgerton, 15 Ind. 15; 
 
 Pr. (N. Y.) 883. Wheeler v. Billipgg, 38 N. Y. 263. 
 
 2 Town of Mentz v. Cook, 108 N. Y. 'Nelson v. White, 61 Ind. 139 ; Liv- 
 
 504 ; Truscott v. King, 6 N. Y. 147 ; ingston v. Tremper, 4 Johns. (N. Y.) 
 
 Bell V. Spotts, 40 N. Y. Super. Ct 552. 416 ; t!arnwright v. Graves, 57 Hun 
 
 8 Biederraan v. O'Connor, 117 111. (N. Y), 517. 
 
 493 ; Dietrich v. Dreutel, 48 Hun, 343 ; 8 Swope v. Fair, 18 Ind. 300 ; Clough 
 
 Taylor v. Ballard, 17 N. Y. State Rep. v. Murray, 19 Abb. Pr. (N. Y.) 97 ; 
 
 598; Marsh v. Dodge, 66 N. Y. 533. Hunting- v. Downer, 151 Mass. 375. 
 
 <Dunfee v. Eyan, 116 U. S. 491; 9 New Haven & N. Co. v. Quintard, 
 
 May V. Sloan, 101 id. 383; Allen v. 6 Abb. Pr. (N. S.) 138; Eiseman v. 
 
 Richard, 83 Mo. 55; Morrison v. Hawkeye Ins. Co., 74 Iowa, 11. 
 
 Baker, 81 N. 0. 76. i" Richtmeyer v. Remsen, 38 N. Y, 
 
 sChatfield v. Simonson, 92 N. Y. 206. 
 
 209; Child v. Detroit Mfg. Co., 73 n Wager v. Ide, 14 Barb. (N. Y.) 468. 
 
 Mich. 633; Scott v. Kittaning Coal 12 Howell v. Biddlecum, 63 Barb. 
 
 (N. Y.) 181. 
 
46 EXILES OF EVIDENCE. 
 
 denial, the instrument sued upon is not admissible if illegal' 
 upon its face.* At common law the illegality of the contract 
 sued upon may be proved under a general denial.^ 
 
 Under the new procedure, the rule is .that if the illegaUty 
 appears on the face of the complaint, or necessarily appears 
 from plaintiff's evidence, advantage may be taken of it by de- 
 fendant, who must be permitted to controvert by evidence 
 everything which the plaintiff is bound in the first instance to- 
 prove in order to make out his cause of action.' If the facts 
 relied on as giving validity to a judgment are alleged in the 
 complaint, the defendant may, under a general denial, impeach 
 the validity of the record ; but this rule is different where the 
 judgment or record is simply alleged without such facts;* and 
 where it is alleged that a judgment or other determination 
 was dalj given or made, a denial of such allegation lets in evi- 
 dence of want of jurisdiction. Where it is alleged that the de- 
 fendant's negligence caused the injury'sued for, the defendant 
 may, under a general denial, show acts of caution and prudence, 
 contributory negligence, or that the negligence was caused by 
 a third party .^ "Where the complaint alleges ownership with- 
 out stating the facts showing it, the defendant may, under a 
 general denial, show ownership in a third person or in himself, 
 or otherwise disprove plaintiff's ownership.' 
 
 At common law a defendant may, under a general denial, 
 prove payment down, or payments in advance, and it seems 
 that the same rule prevails under the new procedure;' and 
 where the plaintiff alleges that no part of the debt has been 
 paid except specified amounts, and makes a demand for the 
 
 1 Handy v. St. Paul Globe Pub. Co., (N. Y.) 154 ; Stevens v. Lafayette, etc. 
 
 41 Minn. 188. R Co., 99 Ind. 392; Ireland v. Cin- 
 
 ^Hill V. Calaghan, 31 Mich. 424; clnnati, "W. & M. R Co., 79 Mich. 163 ; 
 
 Craig V. Missouri, 4 Pet. 410. Lee v. Troy Citizens' Gas Light Co., 
 
 3 Russell V. Burton, 66 Barb. (N. Y.) 98 N. Y. 115. 
 
 539 ; Oscanyan v. Arms Co., 103 U. S. 6 Schulenberg v. Harriman, 31 Wall. 
 
 261; Cary v. Western U. Tel. Co., 21 44; Woodsum v. Cole, 69 Cal. 142; 
 
 Abb. N. C. (N. Y.) 233, 47 Hun, 610; Eureka I. & S. Works v. Bresnahan, 
 
 O'Biien v. McCann, 58 N. Y. 376 ; Mill- 66 Mich. 489 ; Avery v. Mead, 46 Hun, 
 
 bank v. Jones, 137 N. Y. 370. 682 ; Young v. Glasscock, 79 Mo. 574. 
 
 * Hill V. Mendenhall, 21 Wall. 453 ; ' Smith v. Winter, 9 Mees. & W. 313 ; 
 
 Blown V. Bale, 3 Lans. (N. Y.) 283 ; Starrett v. Mulen, 2 L. R. A. 697, 148 
 
 Roys V. Lull, 9 Wis. 324. Mass. 570. 
 
 5 McDonell v. Buiion, 31 How. Pr, 
 
EVIDENCE UNDBB PAETIOULAR PLEADINGS. 47 
 
 balance, the defendant may, under a general denial, show other 
 payments than those admitted.' The defendant cannot show, 
 under a general denial, that the plaintiff is not the real party 
 in interest, unless it is such a case that the plaintiff is bound 
 to prove ownership in order to establish his cause of action.* 
 At common law the defendant may, under a general denial, 
 show adverse possession sufficient to vest absolute legal right ; ' 
 but the rule is different in those jurisdictions having statutory 
 provision requiring the statute of limitation to be pleaded.* 
 
 § 9, Res adjudicata. — A former recovery in favor of plaint- 
 iff, relied upon, not as furnishing evidence in support of de- 
 fendant's present allegations, but as merging the cause of 
 action and constituting a bar to a new action, is not admissible 
 if not pleaded.* Where a former adjudication is pleaded as- 
 an estoppel, it is a conclusive bar; and where from the form 
 of the proceedings a party could not plead it, it is admissible- 
 and conclusive.^ 
 
 § 10. Limitations. — The statute of limitation is not avail- 
 able to defendant unless pleaded, even though the plaintiff 
 shows a case to which the statute appears to be a bar. But 
 plaintiff may rely on the statute, though not pleaded, to bar 
 any demand proved by defendant which did not call for a 
 reply.'' 
 
 §11. Discharge from debts. — A discharge in bankruptcy 
 or insolvency is not admissible in evidence unless pleaded.* 
 But unless a reply is required, the facts relied on to avoid a 
 discharge may be proved in rebuttal though not alleged.' 
 
 § 13. Release. — To make a release admissible in evidence 
 
 1 Brown v. Forbes (Dak.), 43 N. W. Gerber v. Gerber, 155 111. 319 ; White 
 Eep. 93 : Quin v. Lloyd, 41 N. Y. 349. v. Foote, 90 Wis. 235 ; Lance v. Shaugh- 
 
 2 Carter v. Bowe, 41 Hun, 516 ; Tell nesaey, 86 Hun, 411. 
 
 V. Beyer, 38 N. Y. 161. f Mercantile Nat. Bank v. Carpen- 
 
 3 Hill V. Bailey, 8 Mo. App. 85 ; ter, 101 U. S. 567 ; Mann v. Palmer, 
 Campbell v. Holt, 115 U. S. 620. 3 Abb. Ct. App. Dec. 163 ; Kaiser v. 
 
 4Hauseev.Mead,37Hun, 162;Eob- Kaiser, 16 Hun, 602; Bloodgood v. 
 
 inson v. Allen, 37 Iowa, 27. Bruin, 8 N. Y. 362 ; Van Patten v.. 
 
 s Brazill v. Isham, 13 N. Y. 9 ; Nor- Bedow, 75 Iowa, 389 ; Lockhart v. Fes- 
 
 ris V.Ames, 15 Ind. 365; Clark v. senich, 58 Wis. 588. 
 
 Thurston, 47 Cal. 21. 8 Bump on Bankruptcy, 748 ; Hayes 
 
 6 Wood V. Jackson, 8 Wend. 9 
 Krekeler v. Ritter, 63 N. Y. 372 
 Flandeau v. Downey, 33 Cal. 354 
 
 V. Ford, 55 Ind. 53 ; Cornell v. Dakin, 
 38 N. Y. 353. 
 9 Euckman v. Cowell, 1 N. Y. 505. 
 
48 EULES OF EVIDENCE. 
 
 it should be pleaded.^ So tender cannot be proved, where 
 keeping the tender good and paying it into court are neces- 
 sary, unless those acts are alleged.^ 
 
 § 13. Matter of inducement — libel and slander.— Matter 
 alleged by way of inducement, if not material to the cause of 
 action, is not in issue, and is not admitted by failure to deny; 
 nor need it be proved ; but if material it is admitted.' Thus, 
 in an action for slander or libel, plaintifif's vocation or ofiBcial 
 character need not be proved, even though alleged, if the 
 words are actionable apart from that; but it may be proved, 
 even though not alleged, if the words directly tend to injure 
 him in it.* If the actionableness of the words depends upon 
 injury in vocation, and the vocation is in issue, plaintiff must 
 prove that he was in the vocation alleged at the time.' Al- 
 though plaintiff's allegations set forth the words of the alleged 
 slander, he need not prove the utterance of those precise 
 words, nor necessarily all of them, even in substance^ but he 
 must prove the utterance of substantially the words alleged, 
 or of a sufficient part of them to sustain an action.* Evidence 
 of specific acts of lewdness or immorality on the part of the 
 plaintiff in an action for slander is admissible where the de- 
 fendant attempts to justify a charge that the plaintiff kept a 
 disorderly house, although his answer may not be sufficient to 
 admit proof of specific acts in justification.' And defendant 
 sued for libel in alleging that plaintiff was intoxicated when 
 performing certain services as an undertaker, andithat he pre- 
 sented an extortionate bill for his services, may show in miti^ 
 gation of damages for the charge of drunkenness that plaintiff 
 had presented an extortionate bill.* 
 
 § 14. Special damage^ — Special damage must be specially 
 alleged in order to be proved.' The allegation of: knowledge 
 of falsity is material.'" 
 
 1 Wisner v. Ocumpaiigh, 71 N. Y. 398 ; iDgraham v. Lyon, 105 Cal. 
 113 ; Matthews v. Chicopee Mfg. Co., 354. 
 
 3 Robl. (N. Y.) 711 ; Dibble v. Dimick, s Forward v. Adams, T Wend. 204. 
 
 143 N. Y. 349 ; Horton v. Horton, 83 « Smith v. HoUister, 33 Vt 695. 
 
 Hun, 313 ; Hitchcock v. Carpenter, 9 " Lanphere v. Clark, 149 N. Y. 472. 
 
 Johns. 344. 8 Holmes v. Jones, 147 N. Y. 59, 69 
 
 2 Becker v. Boon, 61 N. Y. 317. N. Y. State Rep. 310, 49 Am. St. Rep. 
 i> Sidenberg v. Ely, 90 N. Y. 357 : 646. 
 
 Halpin v. Phenix Ins. Co., 118 N, Y. s-Bottomly v. Bottomly,80 Md. 189'; 
 
 165. Backus v. Richardson, 5- Jbhns. 476. 
 
 * Sanderson v. Caldwell, 45 N. Y. i» Spooner v. Keeler, 51 N. Y. 527. 
 
EVIDENCE UNDER PAETICDLAE PLEADINGS. 49 
 
 § 15. Trespass. — In trespass, the allegation of unlawful 
 entry on the premises, and of unlawful removal or injury of 
 property there, are to be distinguished, and an allegation of 
 one of these facts will not admit evidence of the other. If 
 both are alleged, taking issue as to one only admits the other ; 
 but if both are in issue, failure to prove either is a variance.' 
 Plaintiff may prove a trespass on any part of the close alleged,^ 
 and, under a denial, the defendant's evidence in disproof of 
 trespass need only be directed to the part of the close to which 
 plaintiff's evidence of trespass was directed. Justification is 
 not admissible under a general denial, except by a public officer 
 or one acting under statute.' Justification by proof of owner- 
 ship in a third person cannot be proved unless the answer not 
 only alleges such property in the third person, but also con- 
 nects defendant with such owner by averring that the act was 
 by his authority.* 
 
 § 16. Negligence. — In an action for negligence, under an 
 allegation of negligence, a contract may be proved, together 
 with actionable negligence, to plaintiff's injurj'-, in the act con- 
 stituting a breach. And under a general allegation of negli- 
 gence the circumstances constituting it may be proved.^ But 
 evidence of other specific instances of negligence on the part 
 of the defendant, independent of the negligence in question, 
 is not competent.^ In an action against a common carrier, a 
 contract, if alleged as a foundation of the action, must be 
 proved, and negligence not alleged may also be proved.' 
 
 § 17. Composition — Payment — Infancy, etc. — A compo- 
 sition with creditors must be alleged in order to be admissible 
 as a bar.' So an account stated should be pleaded,' and the 
 
 iCoUon V. Jones, 7 Eobt 164; City By. Co. v. Jennings, 157 IlL 
 
 Kenny v. Planer, 3 Daly, 131. 274. 
 
 2 Rich V. Rich, 16 Wend. 663. « First National Bank of Lyons v. 
 
 » Root V. Chandler, 10 Wend. 110. Ocean Nat Bank, 60 N. Y. 278 ; Beard 
 
 4 Lamb v. Harbaugh, 105 Cal. 680; v. Illinois C. R Co., 79 Iowa, 518; 
 
 Bahr v. Boley, 85 Hun, 448 ; Kissam Oregon S. L. & U. N. R Co. v. Tracy, 
 
 V. Roberts, 6 Bosw. 154. 66 Fed. Rep. 981. 
 
 soidfield V. N. Y. & H. R R Co., 'Rich v. New York Central Ry. 
 
 14 N. Y. 310; Davis v. Guarnieri, 45 Co., 87 N. Y. 389; Andrews' Steph. 
 
 Ohio St. 471 ; Niggli v. Foehry, 83 Pi., pp. 57, 5a 
 
 Hun, 269 ; Dougherty v. Missouri R. f Smith v. Owens, 21 Cal. 11 ; Wis- 
 
 Co., 97 Mo. 647 ; Chicago, R L & P. R ner v. Ocumpaugh, 71 N. Y. 113. 
 
 Co. V. McBride,54Kan. 172; Chicago SKock v. Bouitz, 4 Daly, 117. 
 4 
 
50 EULES OF EVIDENCE. 
 
 defense of accord and satisfaction ought to be pleaded.* Pay- 
 ment is another defense that is not, as a general rule, admissi- 
 ble in evidence unless pleaded.^ Unsoundness of mind must 
 be pleaded to admit evidence of it.' Infancy, to be admissible, 
 must be pleaded.* A new promise is admissible in rebuttal 
 though not alleged." 
 
 § 18. Illegality. — Illegality of contract must be pleaded, 
 to be admissible;* so if the special ground is stated, other 
 grounds not stated are inadmissible.' Thus, to be admissible, 
 usury must be specially pleaded;' and a general allegation, 
 without stating the facts relied on as constituting usury, is 
 not enough ; and, if a foreign law is relied on, both the law 
 and the facts necessary to bring the contract under such for- 
 eign law must be alleged.' 
 
 § 19. iPerformance. — An allegation of performance of a con- 
 dition does not admit evidence of a waiver or other excuse for 
 non-performance." 
 
 § 30. Warranty of title. — Failure of title without eviction 
 or disturbance of possession in case of a purchase-money mort- 
 gage is not a defense, unless fraud or misrepresentation is 
 proved, and to be admissible these must be alleged.'* 
 
 §21. Ownership. — In replevin ownership may be proved 
 under a general allegation, designating the things as the 
 "goods of the plaintiff."*^ A fraud by which defendant ob- 
 tained the goods from plaintiff may be proved though not 
 alleged." So demand may be proved though not alleged. 
 Under an allegation of conversion of plaintiff's property,' evi- 
 dence of conversion of the property of another, and a subse- 
 
 iBrettv. First Univ. Soc, 63 Barb. « Mechanics' Bank v. Foster, 2» 
 610 ; Richmond City & S. P. R Co. v. How. Pr. (N. Y.) 408 ; Roberts v. Mat- 
 Johnson, 90 Va. 775. thews, 77 Ga. 458 ; Handy v. St Paul 
 
 2McKyring v. Bull, 16 N. Y. 297; G. P. Co., 41 Minn. 188. 
 
 Quinn v. Lloyd, 41 id. 349. 9 Manning v. Tyler, 21 N. Y. 567 ; 
 
 ' Dearmond v. Dearmond, 12 Ind. Cutler v. Wright, 22 id. 472. 
 
 455. 11 Oakley v. Morton, 11 N. Y. 25; 
 
 < Wailing v. Toll, 9 Johns. 141. Strong v. Strong, 84 Hun, 314 
 
 6 Esselstyn v. Weeks, 12 N. Y. 635 ; " Farnham v. Hotchkiss, 2 Abb Ct 
 
 Dusenbury v. Hoyt, 53 id. 521. App. Dec. 93 ; Ross v. Mather, 51 N. t. 
 
 6 Rose. N. P. 346; McGee v. Long, 108. 
 
 83 Ga. 156; Hedges v. Doem, 72 Cal. 12 Simmons v. Lyons, 55 N. Y. 671. 
 
 520 ; Rutter v. Henry, 21 Ohio St. 121. " Bliss v. Cottle,' 32 Barb. 322. 
 
 ' Dingeldein v. Third Ave. R Co., 9 
 Bosw; 79. 
 
EVIDENCE UNDER PAETICULAli PLEADINGS. 51 
 
 quent assignment of the property, or of the cause of action 
 for conversion, is not competent. The assignment must be 
 alleged.! Under a general averment of title or ownership the 
 source of plaintiff's title may be proved.^ Conversion of checks 
 or money may be proved under an allegation of conversion of 
 property.' So conversion may be proved under an allegation 
 that defendant took and carried away. Demand before suit if 
 necessary may be proved though not alleged.* 
 
 § 23. Value. — Some value must be proved though the alle- 
 gation of value is not denied. Under a general denial de- 
 fendant may show anything going to controvert the facts 
 which plaintiff is bound to establish or to reduce the damages.^ 
 Illegality in the contract set up by defendant as a justification 
 of his detention m9,y be proved by plaintiff in rebuttal, though 
 not alleged in pleading, unless the contract is pleaded as a 
 counter-claim.' 
 
 § 23. Fraud. — In actions for fraud the fraudulent represen- 
 tations relied on must be stated in the complaint. But, if a 
 sufficient fraudulent representation is duly alleged and proved, 
 a representation not specifically alleged may also be proved.'' 
 The plaintiff should allege that defendant knew the facts al- 
 leged to be false when he made them.' Intent to deceive must 
 also be alleged,' and that plaintiff relied upon the statements.'* 
 Plaintiff's knowledge of the facts is admissible under a general 
 denial." ^ 
 
 § 24. Contract with a common carrier. — In an action 
 against a common carrier of goods, a contract, if alleged as 
 the foundation of the action, must be proved, and negligence 
 
 1 Cottle V. Cole, 30 Iowa, 481 ; Hicks 7 Hale v. Walker, 31 Iowa, 344 ; 
 V. Cleveland, 48 N. Y. 84 ; Sherman v. Green v. Hayes, 70 Cal. 376 ; Rhino v. 
 Elder, 34 id. 381. Emery, 73 Fed. Rep. 383 ; Calkins v. 
 
 2 Heine v. Anderson, 3 Duer, 818. Manhattan Oil Co., 65 N. Y. 557. 
 
 s Knapp V. Roche, 37 N. Y. Supr. » Oberlauder v. Spiess, 45 N. Y. 175 ; 
 
 Ct. 395. Derry v. Peck, L. R. 14 App. Cas. 837. 
 
 * Simser v. Cowan, 56 Barb. 395. » Lefler v. Field, 53 N. Y. 631. 
 
 5 Booth V. Powers, 56 N. Y. 83; lo Taylor v. Guest, 58 N. Y. 363; 
 Madison v. Missouri P. R. Co., 60 Mo. Hicks v. Stevens, 131 111. 186 ; Frick 
 App. 599 ; Nichols v. Jones, 166 Pa. v. Taylor, 94 Ga. 683 ; Chu Pawn v. 
 St 599 ; Eoggers v. Metropolitan St. Irwin,' 83 Hun, 607 ; Coleman v. Howe, 
 E. Co., 118 Mo. 338. 154 III. 458. 
 
 6 Williams v. Tilt, 36 N. Y. 319; " Howell v. Biddlecom, 63 Barb. 131. 
 Northern P. Ex. Co. v. Martin, 36 
 
 Can. S. C. 135. 
 
62 ECLES OF EVIDENCE. 
 
 not alleged may also be proved.^ Omission to allege special 
 exemption in the contract is not material unless there is evi- 
 dence to bring the case with an exemption. An allegation of 
 conversion does not admit of evidence of mere loss, non-delivery 
 or delayed delivery.^ 
 
 § 25. Actions on judgments. — In an action upon a judg- 
 ment, any ground which would sustain a bill in equity for re- 
 lief may be proved under a proper answer in defense of the 
 action.' Reversal may be proved under a general denial.^ A 
 vacatur should be specially pleaded ; so a denial of the exist- 
 ence of the judgment does not admit evidence in contradiction 
 of the record that it was without jurisdiction.'* 
 
 § 36. Breach. — In actions on leases, under an allegation of 
 wrongful eviction hj the landlord as a defense to claim for 
 rent, a constructive eviction may be proved.' Under an alle- 
 gation that defendant is an assignee of the whole premises, 
 proof that he was assignee of part only is admissible.' A writ- 
 ten contract is admissible in evidence under a general allega- 
 tion that the party contracted, without indicating how.' In an 
 action upon a sealed instrument, plaintiff is not entitled to prove 
 breach not alleged, unless there is a general allegation.' A 
 failure of consideration cannot be proved under a general de- 
 nial.'" In an action on a bond for the payment of money the 
 defendant must plead payment and prove it." In an action 
 for the breach of any other condition, plaintiff should allege 
 non-performance of the condition and give some proof of non- 
 performance.'^ But if there is a proviso or defeasance contained 
 in a condition, the facts necessary to invoke it must be set up 
 by defendant in order to avail him." Special matter of defense, 
 including fraud and mistake, must be pleaded or it cannot be 
 
 1 Bostwick V. Baltimore, etc. R Co., ' Van Rensselaer v, Gallup, 5 Den. 
 45 N. Y. 713, 454. 
 
 2 Briggs V. N. Y. C. R Co., 28 Barb. 8 Marston v. Swett, 66 N. Y. 206. 
 515. 9 Briggs v. Vanderbilt, 19 Barb. 223. 
 
 3 Mandeville v. Reynolds, 68 N. Y. " Dubois v. Hermance, 56 N. Y. 673. 
 528; Grim v. Handley, 94 U. S. 653. "Krower v. Raynolds, 99 N. Y. 245. 
 
 < Briggs V. Bowen, 60 N. Y. 454. i^Lipe v. Becker, 1 Den. 568; Hatt 
 
 5 Hill V. Mendenhall, 21 Wall. 453. v. Blud worth, 49 Ala. 315; Smyth v. 
 
 eDyett v. Pendleton, 8 Cow. 727; Scott, 106 Ind. 245. 
 
 West v. Norwich U. F. Ins. Co., 10 w Jarvis v. Sewall, 40 Barb. 449. 
 
 Utah, 442 ; Shenandoah Min. & Mill. 
 
 Co. V. Morgan, 106 Cal. 409. 
 
EVIDKNCE UNDER PARTICULAR PLEADINGS. 53 
 
 proved.^ In an action upon an award, a denial of award ad- 
 mits evidence that there was none in fact ; but if there was 
 one in fact, there should be an allegation of the irregularit}'^, 
 departure from submission, subsequent vacatur, or other ground 
 of invalidity relied on, to admit evidence of the objection.^ 
 
 § 27. Negotiable paper. — In actions upon negotiable paper 
 the loss or destruction of the paper need not be alleged in the 
 complaint.' If the action is on the instrument in its original 
 form, a material alteration raises a question of failure of proof 
 or variance. If the action is on the instrument in its altered 
 form, an answer admitting execution, without alleging the 
 alteration, precludes evidence of alteration.* But, under a 
 general denial, evidence that an alteration was made after de- 
 livery is admissible.' Evidence of presentment at the place 
 specified is admissible under a general allegation that the note 
 or bill was duly presented.* An allegation of demand and. 
 notice of dishonor is essential, and its omission is not dis- 
 pensed with by giving a copy of the instrument and alleging 
 the sum due and performance of conditions.' Under an alle- 
 gation of demand and notice the fact must be proved, and an 
 excuse for failing to demand or to give notice is not admis- 
 sible.' But indirect evidence, such as a subsequent promise 
 to pay, or an actual part payment, or an admission of liability, 
 is admissible.' Evidence that the paper was made for a special 
 purpose and misappropriated is not available under a mere 
 denial of making or indorsing.^" If the complaint makes only 
 a general allegation of title, evidence that title is in another is 
 not admissible as a defense, unless pleaded as new matter.^^ 
 If the plaintiff's title is not put in issue, evidence that he had 
 
 1 Northrup v. Miss. Valley Ins. Co., 92 Mo. 136 ; Conklin v. Gandall, 1 
 47 Mo. 435 ; Maher v. Hibernia Ins. Abb. Ct App. Dec. 433 ; 1 Chit. PI. 380 
 Co., 67 N. Y. 383. (16th Am. ed.) ; Matthews v. Bates, 
 
 2 Day V. Hammond, 57 N. Y. 484; 93 Ga. 319; Stedman v. Eochester L. 
 Knowlton v. Mickles, 29 Barb. 465. & B. Co., 42 Neb. 641. 
 
 3 Freeman v. Ellison, 18 Alb. L. J. sPier v. Heinrichoffon, 53 Mo. 333; 
 210, 37 Mich. 459. Garvey v. Fowler, 6 Duer, 587 ; Eoso. 
 
 ^Smedburg v. Whittlesey, 3 Sandf. N. P. 377. 
 
 Ch. 330. 9 Patterson v. Stettauer, 40 N. Y. 
 
 s Fisher v. Fisher, 113 Ind. 474; Supr. Ct 54. 
 
 Boomer v. Koon, 6 Hun, 645. " Collins v. Gilbert, 94 U. S. 757. 
 
 «Eosc. N. P. 369. "Turner v. "White, 73 Cal. 299; 
 
 ' Montgomery County v. Auohley, Spencer v. McGonagle, 107 Ind. 410. 
 
54 EDLES OF EVIDENCE. 
 
 none, and had not authorized the action, is inadmissible. But, 
 under a general denial, defendant may show that plaintiff has 
 but a naked legal title, and that the real interest is in another, 
 for the purpose of showing the declarations of that other.' 
 Unreasonable delay in the presentment of a check, if rehed 
 upon as a defense, must be averred in the answer. . 
 
 § 28. Work and materials. — In an action for compensation 
 by a person employed, under a general allegation for work and 
 labor, plaintiff may give evidence of a particular kind of serv- 
 ice and of materials ; * thus, a claim for articles made and de- 
 livered for a specified sum, pursuant to agreement, may be 
 recovered on a complaint for work, labor and materials, as 
 well as on a complaint for goods sold.' But under a general 
 complaint for a quantum meruit for work, labor and services, 
 plaintiff cannot prove a contract which remains executory on 
 his part.* He may, however, under such a complaint, prove 
 that a price was fixed by agreement; ' or may give in evidence 
 any express or special contract payable presently in money, 
 together with evidence either of full performance on his part 
 or an excuse exonerating him from full performance;* or 
 that he has in good faith fulfilled, but not in the manner or 
 within the time prescribed by the contract, or that the other 
 party lias sanctioned or accepted the work. Under an allega- 
 tion of a special contract for work and materials, a contract 
 for work only may be proved." If the allegation be of serv- 
 ices between specified dates, prior or later services are not 
 provable; but if the allegation is of indebtedness on a day 
 named, or services before a day named, a term of service or 
 various services before that day may be proved.' Under an 
 allegation of a contract to pay a specified price or rate of com- 
 pensation, plaintiff may prove a promise to pay what the serv- 
 ices were reasonably worth.' But if he rests his case on a 
 contract fixing the price to be recovered, it is not competent 
 
 1 Davis V. Carpenter, 13 How. Pr. « Bogardus v. New York Life Ids. 
 
 (N. Y.) 387. Co., 101 N. Y. 328 ; Milliken t. Western 
 
 23R0SC.N.P. 555; Denny V.Denny, Union Tel. Co., 110 id. 403; Hosley 
 
 90 Mass. 309. v. Black, 28 id. 438 ; Berringer v. 
 
 3 Prince v. Down, 2 K D. Smith, Beecher, 58 Mich. 557. 
 535. 7 Cobb v. West, 4 Duer, 38. 
 
 * Derniott v. Jones, 3 Wall. 9. « Beekman v. Platner, 15 Barb. 550. 
 
 6 Fells v. Vestvali, 3 Keyes, 153. » Scott v. Lilienthal,' 9 Bosw. 234 
 
ETIDENCE UNDER PAETICULAE PLEADINGS. 55 
 
 for him to give evidence of value as a basis of recovery beyond 
 the contract.^ 
 
 Evidence of an excuse for partial non-performance is ob- 
 jectionable under an allegation of performance.^ 
 
 Under a general denial defendant may prove any circum- 
 stance tending to show that he was never indebted at all, or 
 that he never owed so much as was claimed: for example, 
 that he never incurred the debt; or that the services, either 
 in whole or in part, were rendered as a gratuity ; or that 
 plaintiff had himself fixed a less price for them than he claimed 
 to recover; or that they were rendered upon the credit of 
 some other person -than the defendant.' If the complaint is 
 on a quantum meruit, not for an agreed price, a general de- 
 nial admits evidence in reduction of the value, such as that 
 the work was unskilfully done, or that defendant had dis- 
 charged plaintiff or given him notice to stop.* If the com- 
 plaint is for an agreed price, a general denial does not admit 
 evidence of unworkmanlike manner, nor of negligence or af- 
 firmative misconduct, unless the contract as pleaded requires 
 the plaintiff to show performance of its stipulations, in which 
 case a general denial allows evidence to disprove perform- 
 ance. If the complaint is general, defendant must aver a 
 special contract, if he relies on it to show that by its terms 
 nothing is due. If the complaint is general for indebtedness, 
 and does not allege a contract, the statute of frauds is avail- 
 able under a general denial;^ but where the complaint sets 
 forth a contract and the answer admits it, the statute is not 
 available unless the facts to invoke the statute of frauds are 
 pleaded. 
 
 § 29. Sales of personal property. — In actions arising on 
 sales of personal property, under a general allegation that de- 
 fendant is indebted to plaintiff in the sum of, etc., for goods 
 sold and delivered to defendant by plaintiff at a time and 
 place named, on defendant's request, the plaintiff may show 
 
 1 Trimble v. Stilwell, 4 B. D. Smith, 2 Hosley v. Black, 28 N. Y. 438. 
 
 .512 ; Marston v. Baerenklau, 67 N. Y. 3 Scherraerhorn v. Van Allen, 18 
 
 State Rep. 844 ; Robinson v. Hunt, 88 Bavb. 29. 
 
 Hun, 285 ; Atlantic Cons'd St R Co. * Raymond v. Richardson, 4 E. D. 
 
 V. Hardage, 93 Ga. 457 ; Williams v. Smith, 171. 
 
 Cleveland, C, C. & St L. R Co., 102 s Algers v. Johnson, 6 S. C. (T. & C.) 
 
 Mich. 537. 633. 
 
56 ETJLES OF EVIDENCE. 
 
 that at defendant's request he sold and delivered to him per- 
 sonal property for which he owes the price or value.' If the 
 facts on which the law raises an implied promise to pay are 
 directly stated, an allegation of such promise is not necessary .^ 
 "Where the plaintifif may waive his right of action for tort and 
 recover on contract, he may prove the facts under a com- 
 plaint for goods sold and delivered.' The delivery, under an 
 agreement alleged as a sale and delivery, or its equivalent so 
 far as plaintiff's duty is concerned, is essential to the theory 
 of the action.'' But under an allegation that the sale and de- 
 livery was to defendant, evidence of a sale to defendant, and 
 of a delivery to a third person at his request, is not an entire 
 failure of proof, but only a question of variance.' The usual 
 allegation that plaintiff sold and delivered the goods imports 
 that the goods belonged to him.^ If the complaint does not 
 affirmatively indicate that the contract was void under the 
 statute of frauds, and the answer admits the contract, without 
 alleging the facts showing it to be void under the statute, evi- 
 dence of compliance with the statute is dispensed with by the 
 admission.'' Under a general denial, or denial of the making 
 of the contract alleged, evidence is admissible that the goods 
 were delivered under a special contract which was substan- 
 tially and materially different from that alleged, and was un- 
 performed by plaintiff.* Defendant may also show that in 
 making the contract he acted as agent for another and on his 
 credit, plaintiff knowing of the agency.^ If the delivery or 
 acceptance is in issue on the pleadings, evidence that the thing 
 tendered did not correspond with the contract, or that plaintiff 
 could not give title, will be admissible, though not specially 
 pleaded ; '" but if acceptance is admitted or proved, and a price 
 fixed by contract is relied on by plaintiff, evidence of defi- 
 ciency in quality is not admissible unless set up in the answer.^' 
 
 1 Allen V. Patterson, 7 N. Y. 476; Rhodes v. Pray, 36 Minn. 393; "Wil- 
 Phillips & C. Const Co. v. Seymour, son v. Smith, 61 Cal. 209 ; Duffy v. 
 91 U. S. 646 ; Butterworth v. Kinsey, O'Donovan, 46 N. Y. 323. 
 
 14 id. 495. 8 Manning v. Winter, 7 Hun, 483. 
 
 2 Farron v. Sherwood, 17 N. Y. 337. « Merritt v. Briggs, 57 N. Y. 651. 
 
 3 Wilson V. Clark, 30 Minn. 367. lO Castognino v. Balletta, 83 Cal. 350 ; 
 
 4 Kimball v. Bryan, 56 Iowa, 652 ;. Scott v. Congdon, 106 Ind. 368. 
 Catlin V. Tobias, 26 N. Y. 817. npetherly v. Burke, 54 N. Y. 646; 
 
 5 Rogers v. Verona, 1 Bosw. 417. McOormick v. Sarson, 38 How. Pr. 
 « Phillips V. Bartlett, 9 Bosw. 678. 190. 
 
 1 0'Conner v. Hurley, 147 Mass. 145 ; 
 
KVinENCE TINDEE PARTICULAR PLEADINGS. 57 
 
 If the plaintiff sues on a quantum, meruit, evidence of defi- 
 ciency in qualit)' is admissible, if alleged, even though accept- 
 ance under a contract fixing the price be proved.^ If the 
 defendant sets up a warranty or false representations, either 
 directly or by denying that there was a purchase except upon 
 terms specified in the answer, the burden is on him to prove 
 the defense.^ 
 
 Where delivery and payment were to be concurrent acts, an 
 averment that at the time and place fixed plaintiff was ready 
 and willing to deliver is enough.' If those allegations, are put 
 in issue, plaintiff must show that he had the articles ready for 
 delivery, and that they correspond with that contracted for, 
 and either that he offered to deliver or that defendant dispensed 
 with delivery. The averment involves the ability of the plaint- 
 iff to deliver. Excuse for breach is not admissible under an 
 allegation of performance.* But if the defendant notified his 
 intention to refuse, ^and forbade the plaintiff to deliver goods 
 ordered to be made, the plaintiff may show this under an alle- 
 gation of refusal to accept. Under an agreement to deliver at 
 a particular place for payment on delivery, the buyer must 
 allege readiness and willingness to receive and pay at that 
 place, or that so doing was waived or prevented by some act 
 of the seller.' Under an allegation of defendant's non-delivery, 
 evidence of his tender, properly refused by plaintiff, is admis- 
 sible.* "Warranty, if relied on, must be alleged, even though 
 it is implied by law;'' but under an allegation not stating 
 whether the warranty was express or implied, proof of either 
 is admissible and sufficient.^ Variance between the allegation 
 and proof in respect to the title to the goods, the consideration 
 of the sale, etc., is of little importance in proving the warranty. 
 Under the allegation of warranty and breach, evidence of de- 
 fendant's subsequent promise to cure the defect is admissible, 
 and he may be held liable on that promise.' 
 
 § 30. Money had and received. — In actions for money had 
 and received, the complaint, unless on an account, may set 
 
 1 Moffatt V. Sackett, 18 N. Y. 523. ' Sterns v. Dubois, 55 Ind. 257 ; 
 
 2Lovell V. Earle, 127 Mass. 546; Packard v. Reynolds, 100 Mass. 153; 
 
 Ferguson v. Rutherford, 7 Nev. 385. Murphy v. McGraw, 74 Mich. 318 ; 
 
 3 Rose. N. P. 510. Prentice v. Kike, 6 Duer, 230. 
 
 4Embry v. Palmer, 107 U. S. 314. 8 Hoe v. Sanborn, 31 N. Y. 553. 
 
 5 Clark V. Dales, 30 Barb. 43. » Dennis v. Coman, 61 N. Y. 643. 
 
 6 Seaman v. Lew, 5 Barb. 337. 
 
58 EULES OF KVIDENCE. 
 
 forth the relation of the parties and the contract or wrong by- 
 means of which the money was received. If the facts alleged 
 constitute a tort, such as a conversion or deceit in obtaining 
 ■credit, or a breach of trust, it does not- necessarily make the 
 action one of tort.^ Where the tort is not alleged, plaintiff 
 may still prove it as part of the transaction by which defend- 
 ant actually received money which he ought to refund to plaint- 
 iff.2 Under a general denial the defendant may prove that the 
 contract contained material provisions under which the money 
 was received, other than those alleged, or that there was a de- 
 parture from the contract by plaintiff's request and the money 
 was paid accordingly.' 
 
 §31. Actions against receivers^ etc. — In an action by or 
 against a receiver, an allegation of his due appointment is nec- 
 essary, if the right of action was vested in him by his appoint- 
 ment. If, on the other hand, the right of action is not derived 
 through his appointment, he need not allege his appointment, 
 but he may sue, simply describing himself as receiver.* Thus, 
 when a receiver sues on a contract made with him as receiver, 
 he may sue without alleging his appointment.' 
 
 § 32. Partnership actions. — In an action by partners, an 
 allegation of partnership between plaintiffs is unnecessary in 
 their complaint, unless their right of action depends on the 
 partnership. Where a joint ownership or joint contract will 
 •enable them to recover, it is no objection to the complaint 
 that the partnership is not pleaded.* In an action against 
 partners, where a joint liability appears on the face of the 
 contract, a partnership need neither be alleged nor proved;' 
 and the chief effect of alleging and proving a partnership is 
 to open the way for admitting more freely the acts and dec- 
 larations of one partner against the other.^ The omission to 
 join a copartner as a defendant is not available, unless it ap- 
 pears by the pleadings, and an answer alleging a defect in 
 
 "Vilmer v. Schall, 61 N. Y. 564; « Sinking v. Floyd, 114 InA S91. 
 
 Purdue v. Noffsinger, 15 Ind. 386. 5 white v. Joy, 13 N. Y. 83. 
 
 2 Harpending v. Shoemaker, 87 * Leper v. Welch, 3 Duer, 644 
 
 Barb. 270. 'Kendall v. Freeman, 3 McLean, 
 
 s Pierce v. Cohassett M. F. Ins. Co., 189. 
 
 133 Mass. 573; Child v. Detroit Mfg. SAlpers v. Schamel, 75 Cal. 590; 
 
 ■Co., 73 Mich. 633; Flynn v. McKeon, Abendroth v. Van Dolsen, 131 U. S. 
 
 6 Duer, 303. 66. 
 
EVIDENCE UNDER PAETICULAE PLEADINGS. 59 
 
 this respect must state precisely and truly who were the 
 parties.' It is not enough to show that the one joined was, 
 in fact, a partner as between defendants, if it is not shown 
 that the fact was generally knOwn, or known to plaintifiPs.^ 
 The fact that, after the transaction and before suit brought, 
 plaintiff became aware that the omitted person was a part- 
 ner, is not enough. In an action for an accounting the allega- 
 tion of partnership is material.' 
 
 § 33. Public officers. — In an action by a public ofiBcer in 
 his official capacity, if he is named personally, the pleading 
 must indicate that he sues oflBcially. A mere addition of his 
 title, without anything to indicate that he sues as such offi- 
 cer, is not enough.* But if it appears from the title or the 
 body of the .complaint that he complains as officer, a cause of 
 action accruing to him in his official capacity may be proved.^ 
 In an action against a- public officer for a wrong not involv- 
 ing the violation of any official duty he or his predecessor 
 owed to the plaintiff, the cause of action may be proved, al- 
 though the complaint does not allege that he was such officer.* 
 But where the breach of such a duty is involved, the complaint 
 should designate him as such officer, and aver him to be such. 
 In New York, in every action against a public officer for his 
 official acts, the defendant may give special matter in evidence 
 under the general issue without notice. Where he pleads justi- 
 fication, however, he must do so strictly.' 
 
 § 34. Married women. — In actions by a married woman on 
 contract, an allegation of her coverture is not necessary in 
 her complaint.^ If her complaint does allege coverture the 
 contract will be presumed to have been within her capacit}'^ 
 if it may have been so, without allegation of the facts on 
 which her capacity depends. Defendant's denial of the contract 
 does not avail to raise the defense of her coverture when she 
 made it.' But if her coverture is pleaded in defense or in 
 abatement and proved, then she must prove the facts showing 
 
 1 Weigand v. Sichel, 4 Abb. Ct App. 5 Griggs v. Griggs, 66 Barb. 291, 300. 
 
 Dec. 593. e Curtis v. Fay, 37 Barb. 64 
 
 2Thorne v. Fox, 67 Md. 67; North 7 Persons v. Parker, 3 Barb. 249; 
 
 T. Bloss, 30 N. Y. 380 ; N. Y. D. D. Co. Bull v. Horton, 65 Cal. 423 ; Robin- 
 
 T. Treadwell, 19 Wend. 535. son v. Jones, 71 Mo. 582. 
 
 3 Salter v. Ham, 31 N. Y. 331. sVan Bnren v. Swan, 4 Allen, 380; 
 
 * Conding v. Mansfield, 73 Mass. Hier v. Staples, 51 N. Y. 136. 
 
 272 ; Smith t. Levinas, 8 N. Y. 473. s Westervelt v. Acklej', 62 N. Y. 505. 
 
60 EDLES OF EVIDENCE. 
 
 her capacity to make the contract or to sue, as the case may 
 require.^ Where defendant sets up a contract made by her 
 as a counter-claim against her, she must allege coverture, for 
 coverture as a defense, even if proven, is not available unless 
 pleaded;^ and the complaint in an action upon a contract exe- 
 cuted by a married woman, whether against her alone or her 
 husband with her, need not allege her coverture, nor that the 
 contract was executed in her business, or for the benefit of 
 her separate estate, even if it appear by the contract that she 
 was married ; but the complaint may be framed as if defend- 
 ant was a feme sole. Her coverture is matter of defense, to 
 be pleaded by defendant if available; and evidence that she 
 was a married woman and could not contract is not admissi- 
 ble under a denial of the contract.' The pla;intiff may prove 
 the contract as alleged, and rest, unless the defendant has 
 pleaded coverture and the fact appears by plaintiff's case; if 
 so, or if defendant thereupon proves coverture under his an- 
 swer, the burden is cast upon the plaintiff to prove a case 
 within the statute.* 
 
 § 35. Heirs and next of kin. — In an action against heirs 
 and next of kin on a debt of the ancestor, the plaintiff must 
 allege and prove affirmatively a case within the provisions of 
 the statute which creates the right of action.' His failure to 
 allege and prove everything which the statute demands is 
 sufficient to prevent a recovery.^ He must allege the grant- 
 ing of letters; that his action is brought after three years 
 from the grant of letters ; that defendant inherited real prop- 
 erty by descent, or acquired real property or personal prop- 
 erty under decedent's will or the statute of distribution, and 
 that decedent left no personal property within the state, or 
 that the same was insufficient to pay the debt, or that the 
 debt could not be collected in due proceedings before the 
 proper court, and at law, from the personal representatives 
 of the decedent, nor^ — if the action is against an heir — from 
 the next of kin or legatees ; and the allegations must be in all 
 things proved as laid.' 
 
 1 Borst V. Spelman, 4 N. Y. 384. 5 Mersereau v. Ryerss, 3 N. Y. 261. 
 
 2 Westervelt v. Ackley, 62 N. Y. 505 ; « Selover v. Coe, 63 N. Y. 443. 
 ADsley V. Green, 83 Ga. 184. ' Roe v. Swezey, 10 Barb. 351 ; 
 
 3 Reed v. Howe. 88 Iowa, 250. Armstrong v. Weed, 62 N. Y. 250. 
 
 4 Downing v. O'Brien, 67 Barb. 582. 
 
EVIDENCE UNDER PAETIC0LAE PLEADINGS. 61 
 
 §36. Admission in pleading. — An answer may contain a 
 direct or implied admission of some fact alleged in the com- 
 plaint.^ The admission is implied when the fact alleged in 
 the complaint is not denied in tlie answer. It is direct when 
 the admission is made in terms. Either form of admission of 
 an allegation contained in the complaint is conclusive upon 
 the defendant so long as it remains in the pleading, and the 
 plaintiff can point to it as conclusive proof of the truth of the 
 allegation.^ No proof can be admitted in support of new mat- • 
 ter contained in an answer which is inconsistent with an alle- 
 gation in the complaint which is not denied.' But an allegation 
 contained in an answer setting up an affirmative defense which 
 has no reference to and does not admit any allegation of the 
 complaint is of an entirely diflferent nature. Such allegation 
 is not an admission contained in a pleading which is conclusive 
 so long as it remains in the record. An admission which so 
 concludes a party admits something already alleged or set 
 forth in the pleading to which the pleading containing the ad- 
 mission is an answer. Thus, in Ferris v. Hard et al.,^ it was 
 held that when the complaint alleged the making and delivery 
 of a mortgage by defendants for $10,000, and the answer of 
 one of the defendants alleged that she executed the mortgage 
 for the purpose of securing the mortgagee for money loaned 
 and to be loaned to her husband, that upon the trial the defend- 
 ant could show a fact which was inconsistent with her allega- 
 tion of the consideration, as the allegation as to the considera- 
 tion of the mortgage admitted nothing as to that consideration 
 which was set forth in the complaint, for there was no allega- 
 tion therein as to consideration. Either party is always at 
 liberty to show, for any purpose except to prevent its opera- 
 tion as a valid deed or mortgage, that the consideration was 
 different from that named in the instrument.* 
 
 If an instrument is fully pleaded and there is no denial, it 
 seems that the party pleading it need not put it in evidence, 
 nor even produce it for inspection.* The admission of the 
 
 1 Jones V. Morehead, 1 Wall. 256. Chicago, St. P. & K. C. E. Co., 76 id. 
 
 2 Paige V. Willet, 38 N. Y. 28. 753. 
 
 3 Fleischman v. Stern, 90 N. Y. 110 ; « 185 N. Y. 858, 48 N. Y. State Eep. 
 Beard v. Tilghman et al., 66 Hun, 12, 618. 
 
 49 N. Y. State Eep. 508; GrifiBn v. 6 Murray v. Smith, 1 Duer, 412. 
 Harriman, 74 Iowa, 436 ; Taylor v. « Mansfield v. Turner, 4 Hun, 183 ; 
 
62 EULES OF EVIDENCE. 
 
 making of the contract by a corporation is an admission of its 
 power and capacity to make the contract.' In equitj'^, if the 
 complaint sets up an anticipated defense and alleges matter 
 in avoidance, an answer setting up that defense and not deny- 
 ing the facts alleged in avoidance admits those facts.^ Failure 
 to deny an allegation of fact from which the law raises a con- 
 clusive presumption admits both the fact alleged and the fact 
 so presumed, and precludes giving effect to any allegation to 
 the contrary;' but a presumption of law in favor of a party 
 cannot aid his pleading if it is inconsistent with his own alle- 
 gations.* An express admission is not generally held to be 
 conclusive against the party in any broader sense than its 
 terms necessarily impl}'.' 
 
 It seems that an admission of an instrument of the same 
 parties and designation as that alleged, coupled with the de- 
 nial that the contents are correctly stated in the pleading of 
 the opposite party, is no denial, but operates as an admission 
 of the instrument. So an admission expressed as relating to 
 an instrument like or similar to that alleged, without denying, 
 the one alleged, is an admission as to the one alleged.' 
 
 A tender and paying the money into court admits abso- 
 lutely that amount to be due, although it does not admit that 
 plaintiff could recover anything if the tender and payment 
 had not been made, nor that the plaintiff is entitled to recover 
 more.'' Where the admission is qualified and coupled with a. 
 denial of what is not admitted, the admission must be taken 
 with the qualification ; and the allegation is not admitted ex- 
 Landers V. Bolton, 26 Cal. 393; ^gcofleld v. McDowell, 47 Iowa, 
 Grange Mills Co. v. Western As8ur. 129. 
 
 Co., 118 III. 296; Wayne v. Stewart, * Andrews v. Chadbourne, 19 Barb. 
 68 Iowa, 13 ; Osborn v. Kline, 18 Neb. (N. Y.) 147. 
 
 844; Plenty V. Rendle, 43 Hun, 568; 'Jones v. JMorehead, 1 Wall. 155; 
 Durant v. Abendroth, 15 N. Y. State National City Bank v. Wescott, 118 
 Rep. 339. N. Y. 468 ; Clark v. Dillon, 97 N.'Y. 
 
 1 Commercial Bank v. Pfieffer, 108 370 ; Gallatin Nat. Bank v. Nashville, 
 N. Y. 242 ; Monson v. St Paul, M. & Chattanooga, etc. R Co., 4 N. Y. 
 M. Ry. Co., 84 Minn. 269. State Rep. 714. 
 
 2 Harris v. Knickerbocker, 5 Wend. * Wallach v. Com. F. Ins. Co., 13 
 638 ; Bogardus v. Trinity Church, 4 Daly (N. Y.), 887 ; Millville Mfg. Co. 
 Paige, 178; Kane v. Bloodgood, 7 v. Salter, 1 How. Pr., N. & (N. Y), 
 Johns. Ch. 90. 495, 15 Abb. N. C. 805. 
 
 'Wilson V. Doran, 110 N. Y. 101. 
 
EVIDENCE UNDEE PARTICULAE PLEADINGS. C3 
 
 oept as qualified.^ But an admission of a fact is not deprived 
 of the effect it has to dispense with evidence by its being 
 coupled with a justification or other separate avoidance of the 
 fact.2 
 
 An express admission of a mixed conclusion of law and fact, 
 or of a conclusion of law stated in a pleading, admits all the 
 facts necessary to support that conclusion, where there is no 
 express denial of such facts coupled with the admission in such 
 manner as to qualify its meaning.' But it is not conclusive 
 on the pleader as to the question of law.* Where a defendant 
 denies the fact admitted in the complaint he cannot claim the 
 benefit of the admission.^ An allegation which could be struck 
 out without impairing the pleader's cause of action or defense 
 is not admitted by failure to deny it ; ^ and a pleading insufii- 
 cient by reason of a fatal defect in substance is not aided by 
 a failure to deny.' An averment of a legal conclusion is not 
 admitted by failure to deny it, nor by averring matter in 
 avoidance, where there are no facts alleged to support the con- 
 clusion.' But a denial of such conclusion of law, without deny- 
 ing the facts alleged which substantiate the conclusion, is an 
 admission of the fact, and the conclusion follows.' It seem& 
 that a failure of the guardian ad litem of an infant defendant, 
 who puts in a pleading in behalf of such an infant, to deny an 
 averment of the adverse party, is not an admission of its truth ; 
 and in such case the allegation, if material, must be proved as 
 if it had been denied.'" 
 
 i.Gage V. Bissell, 119 lU. 398; Gil- Barton v. Sackett, 3 How. Pr. (N. Y.) 
 
 dersleeve v. Landon, 73 N. Y. 609; 358. 
 
 Goodyear v. De La Vergne, 10 Hun, 'Jackson vr Ashton, 11 Pet 229; 
 
 587 ; Albro v. Figurea, 60 N. Y. 630. Boyce v. Brown, 7 Barb. (N. Y.) 80. 
 
 ZQlemmens v. Moore, 6 Wall. 399; swatson v. Leman, 9 Colo. 200; 
 
 Parker v. Lainier, 83 Ga. 216. Porter v. Wormser, 94 N. Y. 431 ; 
 
 3 Sadler v. Olmstead, 79 111. 131; Alston v. Nelson, 44 Iowa, 130; Jor- 
 
 Stephenson v. Leesburgh, 33 Ohio St. dan v. National Shoe & L. Bank, 74 
 
 475. N. Y. 467; Wormouth v. Hatch, 33 
 
 < People ex rel. Purdy v. Com'rs of Cal. 120. 
 
 Highways, 54 N. Y. 376. 9 Holbrooke v. Sims, 39 Minn. 123;. 
 
 sHurd V. Hannibal & St. J. R. Co., Adams v. Adams, 31 Wall. 185; Lee 
 
 18 N. Y. Week. Dig. 339 ; Spores v. v. Casey, 39 Mo. 383 ; Emery v. Baltz, 
 
 Bowgs, 6 Oreg. 133. 94 N. Y. 408. 
 
 6 Tolland v. Sprague, 13 Pet. 300; mVarner v. Rice, 44 Ark. 236; Roe- 
 Moore V. Murdock, 26 Cal. 514 ; Brown v. Angevine, 7 Hun, 679 ; Morris v. 
 V. Wakefield, 19 Gray, 450 ; Wood v. Edwards, 48 Ark. 437. 
 Steamboat Fleetwood, 19 Mo. 539; 
 
64 KULES OF EVIDENCE. 
 
 Allegations giving a different version of the transaction from 
 that alleged by the plaintiff do not avail as a denial ; and where 
 there is no express traverse of plaintiff's version, such a ver- 
 sion stands admitted, notwithstanding that it is inconsistent 
 with the defendant's allegation.^ But a denial which is in the 
 form of a direct allegation to the contrary of that of the ad- 
 versary is a good denial,^ although if defendant alleges a dif- 
 ferent version, adding "and he therefore denies," etc., the 
 denial is to be interpreted as only a conclusion of the pleader, 
 and is insufficient if the facts on which it is predicated are in- 
 sufficient.' If a fact is sufficiently denied in one count of the 
 answer, plaintiff cannot treat the denial as waived, or proof 
 dispensed with, by reason of even an express admission of the 
 fact contained in a separate defense introducing an avoidance.* 
 
 § 37. Attacking an instrument set up as a counter-claim. 
 "Where, in an action at law upon a money demand, an instru- 
 ment executed by the plaintiff is set up as a counter-claim, the 
 plaintiff cannot, under a reply simply denying the counter- 
 claim, show by parol evidence what was the true agreement 
 between the parties to such instrument. That is to say, if the 
 instrument set up was complete when the plaintiff signed it, 
 although by fraud or mistake it did not express the true agree- 
 ment between the parties, his sole remedy is to procure its 
 reformation ; and when an effort is made to enforce it against 
 him he cannot contradict the terms thereof by parol evidence, 
 except by proper allegations in his pleadings asking for its 
 reformation. But where the plaintiff signs a blank piece of 
 paper, it is sufficient for him on the trial to prove that he 
 simply signed a blank piece of paper, and then it is for the de- 
 fendant to show that the plaintiff authorized the blank to be 
 filled up, and how and under what circumstances the authority 
 was given, and what the authority was.' 
 
 1 1 Chitty, PI. (16th Am. ed.) 561 ; 3 Baltimore & O. R Co. v. "Walker, 
 
 Wood V. Whiting, 31 Barb. (N. Y.) 45 Ohio St 577; Siter v. Jewett, 33 
 
 190 ; McDonald v. Salem C. F. M. Co., Cal. 92. 
 
 31 Fed. Rep. 577 ; Fleischman v. * Remington Paper Co, v. O'Douch- 
 
 Stern, 90 N. Y. 110 ; West v. Ameri- erty, 81 N. Y. 474 ; Troy, etc. R Co. v. 
 
 can Exch. Bank, 44 Barb. (N, Y.) 175. Kerr, 17 Barb. (N. Y.) 581 ; Brinsmaid 
 
 2 Burlington, etc. R. Co. v. Young v. Mayo, 9 Vt. 31. 
 
 Bear, 17 Neb. 668 ; Homyer v. Rogers, 5 Eichards v. Day, 187 N. Y. 183, 50 
 
 74 Iowa, 395 ; Perkins v. Brock, 80 N. Y. State Rep. 389. 
 Cal. 330. 
 
EVIDENCE UNDEK PAETICCILAR PLEADINGS. 65 
 
 . § 38. Proof of defenses arising after suit brought. — In 
 
 an equitable action, matters occurring after the suit com- 
 menced, but before answer, may be pleaded as of right ; and 
 the reason is that in such action costs are discretionary, and if 
 the defendant prevails, notwithstanding there was good cause 
 to sue, the court can charge him with costs. But in an action 
 of a legal nature, the rights of the parties must be determined 
 as they existed at the commencement of the action, except so 
 far as the situation has been since changed unfavorably to the 
 plaintiff's claim, either by his own act or by operation of the 
 law, the reason being that, in a legal action, the statute gives 
 costs ; and as they ought not to be charged on a plaintiff who 
 had good ground to sue, defendant should get leave to plead, 
 so that the court may impose terms.* Evidence of such facts 
 cannot be given unless pleaded.^ 
 
 § 39. Explaining inconsistencies between testimony and 
 pleading. — Where there is a clear contradiction between the 
 evidence and a swdrn answer, the defendant may give any 
 evidence which tends, if believed, to explain such contradiction 
 in a manner consistent with the honesty of the witness. Thus, 
 in Ferris v. Hard et al.,' the defendant was allowed to show 
 that when the answer was drawn she informed the attorney 
 that the facts were as sworn to by her, and the attorney ad- 
 vised her there was no legal difference between her statement 
 and the allegations in the answer, as that was the legal effect, 
 etc. 
 
 §40. Conspiracy. — -It seems that, in order to connect de- 
 fendant with a fraud, the plaintiff may show conspiracj', fraud 
 or deceit, in an action for damages, without specially alleg- 
 ing it.* But it is different in any other case.* 
 
 §41. Excuse. — Neither evidence of non-performance nor 
 excuse is admissible under an averment of performance ; but 
 it is said that in an action of quantiim meruit or upon an im- 
 plied contract it is different.* 
 
 1 Styles V. Fuller, 101 N. Y. 682. 6 story, Eq. PI. 24. 
 
 2 Ferris v. Tannebaum, 89 N. Y. «Hosley v. Black, 28 N. Y. 438; 
 State Rep. 71. Eiseman v. Hawkeye Ins. Co., 74 
 
 8 135N. Y. 854, 48N.Y. State Bep. Iowa, 11; Purdue v. Noffsinger, 15 
 
 618. Ind. 386; Oakley v. Morton, 11 N. Y. 
 
 <Hutchins V. Hutchins, 7Hill, 104; 25; Lord v. Wheeler, 67 Mass. 283; 
 
 Stugle V. Beachboard, 68 Mich. 401. Lefler t. Sherwood, 21 Hun, 573; 
 6 
 
66 BULKS OF mVIBENGi!. 
 
 § 42. Modification. — A-n averiacient of a contract does h<^ in 
 general allow of proof of its modifieation, but it is different 
 where the contract as modified is alleged * 
 
 § 4=3. Assignment. — '■ If a party alleges that a cause of acti©B 
 accrued to a third person, and has been assigned to the party 
 ji^eading, he cannot show that the cause of action arose be- 
 tween the parties to the action. But under an allegation of 
 assignment any manner of assignment is suflBcient; and an 
 amendment on trial setting up an assignment has been allowed* 
 
 f W. Two theories. — Where a plaintiff alleges two theories 
 on which he claims a recovery, the fact that he does not state 
 on which one he relies is no ground for excluding his evidence, 
 upon an objection by defendant founded upon that ground.' 
 
 § 45. Documents. — It seems that where an instrument is 
 duly and fully pleaded, and the other party in no way denies 
 the allegations of the party pleading it, the party so pleading 
 it need not produce or put such document in evidence.* 
 
 § 46. Evidence of connter-ciaim under averment of set- 
 oift". — A defendant is entitled to adduce evidence of a counter- 
 claim where the answer avers that the matter stated would 
 be relied on as a set-off, if it does not appear that the plaintiff 
 is prejudiced thereby.^ 
 
 % 47. Meaning ol characters, etc Where it is necessary 
 
 for a party pleading an instrument to show the meaning of 
 characters therein, of which meaning the court cannot judiciallj 
 
 Boon T. state Ins. Co., 37 Minn. 436 ; v. N. Y. O. & H. R E. Ca, 60 N. Y. 
 
 Bernhard v. Washington Ldfe Ins. 138 ; Read v. Banik of Attica, 55 Hus^ 
 
 Co., 40 Iowa, 443; Baldwin v. Munn, 154; Archibald v. Mutual L. Ins. Co., 
 
 8 Wend. 399. 38 Wis. 548 ; Bowman v. Keleman, 86 
 
 1 Salter v. Ham, 31 N. Y. ,831 ; Wal- N. Y. 598 ; Cochran v. Scott, 3 Wend, 
 lace V. Blake, 30 N. Y. State Rep. 248, 239. 
 
 138 N. Y. 676 ; Lanitz v. King, 93 Mo. ' Commercial Bant of Keokuk v. 
 
 513; White v. Soto, 83 Cal. 654; Fal- PfeiEfer, 108 N. Y. 342. 
 
 Ion V, Lawler, 103 N. Y. 238; Tun- * Grange Mills Co. v. Western Ass'n 
 
 bridge v. Read, 23 N. Y. State Rep. Co., 118 lit 396; Durant v. Abend- 
 
 764; Pharr v. Bachelor, 3 Ala. 337; roth, 15 N. Y. State Rep. 339; Plenty 
 
 Crane v. Maynard, 13 Wend. 408; v. Rendle, 43 Hun, 568; Landers v. 
 
 Tuskaloosa Cotton Seed Oil Ca v. Belton, 20 Cal. 393 ; Wing v. Stewart 
 
 Parry, 85 Ala. 158. 68 Iowa, 13; Cook v. Hart, 18 Tex. 
 
 2 Avery v. N. Y. C. & H. R R Co., 554 
 
 106 N. Y. 143 ; Place v. Minster, 65 id. » Metropolitan Trust Co. v. Tona- 
 89; Sherman v. Elder, 24 id. 381; wanda, V. & R. Co., 43 Hun, 531; 
 Doty V. Regoor, 9 Ohio St 519 ; CNeiU Ohatfield v. SimoBSon, 93 N. Y. 208. 
 
EVIDENCE UNDER rAETICULA.E PLEADINGS. ©7 
 
 take notice, if the party pleads the instrument according to 
 its legal effect he may then adduce the instrument with verbal 
 proof of its raeaning.i 
 
 §48. Incapacity. — Defendant cannot show the plaintiff's 
 incapacity to sue unless he specially pleads it.^ 
 
 §49. Statute of frauds. — It seems that neither plaintiff 
 nor defendant can prove a contract that under the statute of 
 frauds is required to be in writing, where such contract is de- 
 nied by his adversary, unless such contract or fact is specially 
 pleaded.' 
 
 §'60. Jurisdiction. — Under an allegation that a judgmeat 
 was duly taken, given or made, the party may show all juris- 
 dictional facts, and under a general denial the defendant may 
 show anything to prove want of jurisdiction.* 
 
 § 51. Title. — A party may, under a general allegation that 
 he is owner, show the particulars and sources of his title ; and 
 it seems that in actions of trespass and personal actions it is 
 sufHcient for a party to describe the premises as " his house," 
 or in other similar words.* 
 
 § 53. Acconnts stated. — An account stated must be .spe- 
 cially pleaded as such ; and if tlie account stated is alone pleaded, 
 the pleader cannot prove the original items or transaction out 
 of which he claims it arose.' 
 
 iLewis V. iFew, Sffohns. 4; United ^i Chitty, API. !(16th Am. ed.) 95; 
 V. Hardyman, 13 Pet 176; Vail v. iLong Island R Co., 106 N. Y. 
 
 Comstock V. Savage, 27 Conn. 184, 283 ; West v. Cameron, 39 Kan. 738 ; 
 
 ■2 Palmer v. Davis, 28 N. Y. 2?t2; Mays v. Pryce, 95 Mo. 603 ; Managhan 
 
 Phillips v.Goldtree, 74 Ciil. 151; Hoj't v. Agri. W. Ins. Co., 53 Mieh. 238; 
 
 V. Hoyt, 58 Vt 538 ; Perkins v. Stirnel, Cruger v. McCloughry, 41 N. Y. 219 ; 
 
 114N. Y.359; Myer v. Lane, 40 Kan. Lane v. Schlemmer, 141 Ind. 396; 
 
 491 ; Sullivan v. Honacker, 6 Fla. 373 ; Bruce v. Kelly, 39 N. Y. Supr. Ct 27 ; 
 
 Jemison v. Kennedy, 55 Hun, 47 ; St. Louis, etc. R. Co. v. Whitaker, 68 
 
 Eayee v. Vandeusen, 49 Vt. 26. Tex. 630 ; Eiske v. Hailey, 51 N. Y. 150; 
 
 3 Springer v. Kleinsorge, 83 Mo. 153 ; Soloman v. Grosbeck,'65 Mich. 540. 
 
 Morrison v. Baker, 81 N. C. 210 ; May « Barker v. Hoff, 53 Hovr. Pr. (N. Y.) 
 
 V. Sloan, 101 U. S. 231 ; Brock v. 382 ; Leycraft v. Dempsey, 15 Wend. 
 
 Knowei-, 37 Hun, 609; Dunphy v. 83; Greenfield v. Massachusetts L. Ins. 
 
 Ryan, 116 U. S. 491; Ruggles v. Co., 47 N. Y. 430 ; Saville v. .^tna P. 
 
 Knowers, 50 111. 412. Ins. Co., 8 Mont 419 ; McCorraack 
 
 «Rays V. Lull, 9 Wis. 334; Robert- H. M. Co. v. Wilson, 39 Minn. 467; 
 
 son V. Perkins, 129 U. S. 383; Brodt Volkening v. De Graaf, 81 N. Y. 268; 
 
 V. Kirkpatrick, 7 Paige, 62 ; Robinson Fuller v. Board, etc., 3 Kan. 445 ; Field 
 
 V. Ocean Steam Nav. Co., 112 N. Y. v. Knapp, 108 N. Y. 87. 
 315. 
 
68 KULES OF EVIDENCE. 
 
 § 53. Breach of condition by plaintiff. — A breach of con- 
 dition cannot be shown unless specially alleged ; and as the 
 plaintiff has the burden of proving due performance on his 
 part, the defendant under a general denial may show the 
 breach.' 
 
 § 54. Consideration — Want of. — An averment that there 
 was no consideration for the contract is suflScient under which 
 to show want of consideration in any contract.^ 
 
 §55. Contract — Execution, etc. — Evidence of delivery 
 and other acts necessary to a valid execution of a contract 
 may be shown under an averment of executing, indorsing, 
 making, etc.,' and that the contract was signed by an agent.* 
 It is only necessary to aver the legal effect of the contract.' 
 
 § 56. Conditions. — Evidence of a contract to do either of 
 two things at the option of either of the parties cannot be 
 shown under an averment of a contract to do a specified 
 thing absolutely; and in order to show such alternative con- 
 tract the pleader must allege the contract which he intends to 
 prove, with all conditions, elections, performance or non-per- 
 formance, as the case may be.* And in order to prove per- 
 formance of conditions precedent a party must allege such 
 conditions, and performance.' 
 
 § 57. Damages. — A party can show the ordinary damages 
 which he suffered from an act or omission of another, under 
 the general allegation of damages, in a specified amount.* 
 Thus, under an allegation of damages from bodily injuries, a 
 party may show the pain and suffering endured up to the time 
 
 iReed v. Hayt, 17 N. Y. State Rep. Billing, 38 N. Y. 363; Hunting % 
 
 137, 51 N. Y. Supr. Ct 131 ; Halferty Downer, 151 Mass. 375. 
 
 V. Wilmering, 113 U. S. 713; Smith 3 Robert y. Good, 36 N. Y. 409 
 
 V. Home Ins. Co., 47 Hun, 30 ; Gav- Graoia v. De Satruslique, 4 Cal. 344. 
 
 erley v. McOwen, 133 Mass. 574 ; * Regents, etc. v. Detroit F. M. Soc, 
 
 Childs V. Detroit Mfg. Co., 73 Mich. 13 Mich. 138. 
 
 633 ; Pierce v. Cohassett M. & F. Ins, » Sweetland v. Sweetland, 8 Mich, 
 
 Co.. 133 Mass. 573 ; Chatfield v. Sim- 483 ; Brown v. Charaplain, 66 N. Y. 
 
 onson, 93 N. Y. 309 ; Trimble v. Stil- 315 ; Morse v. Gilraan, 16 Wis. 504. 
 
 well, 4 E. D. Smith, 513. CMosher v. Rogers, 117 111. 446 
 
 2 Fisher v. Fisher, 118 Ind. 474; Hatch v. Adams, 8 Cow. 35; Stone v. 
 
 Evans v. Williams, 60 Barb. 348 ; Knowlton, 3 Wend. 374. 
 
 Carn Wright v. Gray, 57 Hun, 518; 'Snow v. Johnson, 1 Minn. 48; 
 
 Peck V. Winne, 51 N. Y. 641 ; Nelson Edgerly v. Farmers' Ins. Co., 43 Iowa, 
 
 V. White, 61 Ind. 139; Wheeler v. 587. 
 
 «Beardstown v. Smith, 150 111. 109. 
 
EVIDENCE UNDER PAETIOtJLAB PLEADINGS. 69 
 
 of trial, as well as those he is reasonably certain to endure 
 thereajfter ; ' the details of those pains and injuries, mental 
 suffering and anxiety.- 
 
 § 68. Duly, etc.— Where a party in pleading alleges that an 
 act was duly performed, or an instrument or thing duly given, 
 made, executed, etc., the word "duly "implies the existence of 
 every fact essential to regularity, and under such a pleading 
 the pleader may show the manner in which the act was done.' 
 
 § 59. Estoppel. — Where a partj'^ wishes to put in evidence 
 an estoppel, to preclude the opposite party from giving evi- 
 dence to the contrary, he mu^st plead such estoppel or he can- 
 not show the facts.* 
 
 § 60. Agency. — Where it is alleged that a party did an act, 
 the party so alleging may show that it was done by an agent.* 
 
 §61. Evidence — Effect of prior proceedings upon.— A 
 party does not waive his right to object to evidence because 
 he has omitted to make a motion to strike out redundant or 
 irrelevant matter from the pleadings under which it is offered, 
 nor because a motion made by him for such relief has been 
 denied.^ So one who has caused portions of his adversary's 
 pleading to be eliminated is estopped from objecting that the 
 pleading in its original form would be better.' 
 
 § 62. Evidence where pleading is insufficient. — Where the 
 answer is insuBBcient, the plaintiff may take the objection that 
 no evidence can be given under it.' So if the complaint does 
 not allege a cause of action, and the defendant has not by an 
 
 ' Doherty v. Lord, 59 N. Y. State ^ Santo v. Maynard, 57 Conn. 157 
 
 Rep. 445. People v. Hintrager, 60 Iowa, 180 
 
 2 Ohio & M. R. Co. V. Hecht, 115 Ind. Porter v. Cunningham, 7 Wend. 173 
 443 ; Ehrgott v. Mayor, etc, of New Curtis v. Fay, 87 Barb. 64 ; Meere v. 
 York, 96 N. Y. 264; Tyson v. Booth, Stevens, 13 Kan. 116; Livermore v. 
 100 Mass. 358; Meier v. Shrunk, 79 Herchell, 3 Pick. 38 ; Wolcott v. Smith, 
 Iowa, 17. ' 81 Mass. 537. 
 
 3 Brownell v. Town of Greenwich, ^ Specht v. Spangenberg, 70 Iowa, 
 114 N. Y. 518. 488; Town of Essex v. New York & 
 
 «KrekIer v. Eitter, 63 N. Y. 373; Canada R Co., 8 Hun, 361; County 
 
 Philadelphia, etc. E. Co. v. Howard, of Nomalia v. Frank, 120 U. S. 41. 
 
 13 How. (U. S.) 307 ; Mussy v. White, ' Dyer v. Saalmanini, 69 Cal. 637. 
 
 58 Vt. 45 ; Terry v. Munger, 49 Hun, 8 Lathrop v. Godfrey, 6 N. Y. S. C. 
 
 560 ; Kirk v. Hamilton, 102 IT. S. 68 ; (T. & C.) 96 ; Spect v. Allen, 13 Oreg. 
 
 Richardson v. Boston, 19 How. (U. S.) 117. 
 263 ; Appeal of Thompson, 126 Pa. St. 
 367. 
 
70 KWLES ©F KVIDBlSeB. 
 
 swer cured such defect, he may take the objection that the 
 plaintiff cannot give any evidence under it.* 
 
 § 63. Adequate remedy at law. — It seems that in most juris- 
 dictions, in an equity action, the defendant cannot show that 
 the plaintiff had an adequate remedy at law unkss b© duly 
 aBeges such' fact.' 
 
 § 6i. Authority. — Where a party by his pleading avers, that 
 a company or corporation duly performed an act,, that, iin'cludes 
 th'e authority of the agents or officers of such corporation or 
 company to do it.' Sc a person can prove ratificatiom of amy 
 kind under an allegation of authority.* 
 
 § 65. Contingent allegations. — It is no grorand of objec- 
 tion to evidence offered by a party that the direct allegations 
 in his pleading are expressed hypotheti^ally.* 
 
 § 66. Averment of a conclusion diii'erent from facts al- 
 leged. — If the facts stated in a pleading conflict with the state- 
 ment of liability or legal effect, it seems that evidence oifered 
 to support either the facts or the conclusion will be rejected if 
 properly objected to on that ground. But it would be other- 
 wise, it seems, if the facts alleged sustained the pleading.' 
 
 I 67. Fiction of law. — Evidence of the actual facts may fee 
 given under an allegation of a conclusion of a fact sought to 
 fee established, where by statute it is provided that a specified 
 fact shall be deemed another fact. So an allegation of the aet- 
 uaJ facts lets' in evidence of them, though it is different at com- 
 mon law.'' 
 
 § 68. General allegations. — It seems that a party cannot 
 »pon the trial sustain an obj,eGtion to evidence supplying omit- 
 ted details in a pleading, if the pleading averred or the facts 
 averred imply every essential fact, though the details — the par- 
 ticulars, etc. — are omitted.' 
 
 1 Sheridan v. Jackson, 78 N. Y. 170 ; * Clark v. Eeimsdyke, 9 Cranch, 
 
 Rutland Pfo. Co. v. Huin 88 Vt 306. 153. 
 
 *Wheelock v. Noonan, 108 M ¥. sjicGrath v. Hyde, 81 Cal. 38'; E'^^ 
 
 179'; Town of Mentz v. Cook, id. 504 ; eritt v. Conklin, 90 N. T. 646 ; Pren- 
 
 Bell T. Spotts, 40 N. Y. S^ipr. Ct. 552; tiss v. Brewer, 17 Wis; 635. 
 
 Truscottv. King, 6 N. Y. 147. «Muntei> v. Rogers, 50 Ala. 283; 
 
 *Board of Education v. Greene- Slieridan v. Jackson, 73 N. Y. 170: 
 
 feaum, 39' 111'. 609 ; Merrill v. Consum- ''' Hendersom v. HendersoD, 3 Denio, 
 
 ers' Coal Co., 114 N. Y. 316 ; Pugh v. 314 ; Barney v. Worthingtoni 37! Nl Y. 
 
 Fairmount G. & S. Min. Co., 113 U. S. 118. 
 
 338. * Minor v. Mechanics' Bank of A., 
 
EVIDENCE UNDER PARTICDLAK PLEADINGS. 71 
 
 § 69. Mistake of fact. — It seems that a plaintiflE may show 
 that an instrument set up by the defendant as a defense was 
 given under a mistake of fact, although he has not pleaded 
 such facts.^ 
 
 § 70. Evidence under Bill of particulars. — Where a bill of 
 particulars is furnished under an order of the court, the party 
 furnishing it is restricted to proof of the matters in such bill 
 as to the items set forth ia the bill and the aggregate thereof; 
 and a bill voluntarily furnished stands upon the same footing.- 
 
 § 71. Evidence to prove irrelevant averments. — It seems 
 that the court may of its own motion reject evidence to prove 
 an irrelevant averment in a pleading.' 
 
 §72. Evidence of contract. — In the absence of statute re- 
 quiring written contracts to be set out in th« pleadings by 
 copy, a party may prove a written contract under a general 
 allegation that a party made a contract, although the law re- 
 quires such contract to be in writing.* 
 
 § 73. Federal court held in a state. — When the federal 
 courts are sitting in a state in the trial of actions at law, they 
 follow the unwritten practice of the state in which they are 
 held, unless the federal court has a different rule. But this 
 rule does not extend t© the statutory practiee of the state, nor 
 to the rules prescribed by the state courts. Thus, it has been 
 held that the federal courts, while sitting in a state which 
 allows s:peeial matters to be given under a general notice or 
 allegation, will follow that practice, except in eases m rem 
 and in eqwity cases'.* 
 
 1 Pet 46; White v. Spencer, 14 N. Y. » White v. Spencer, 14' N. Y. 247; 
 
 847;, Clare v. National City Bant, 35 Corning v. Corning, 6 id. 100; Bur- 
 
 K. Y. Sup. Ct 261 ; Barton v. Gray, rows v. Butler, 38 Hud, 157 ; Murray 
 
 4& Mich. 164; Barkl'ey v. State, 15 v. New York L. Ins. Co., 85 N. Y. 236. 
 
 Kan. 99. * Higgins v. McDbnuell, 16 Gray, 
 
 'Meyer v. Lathrop, 73 N. Y. 315; 386; Louisville, N. A. & C, R. Co. v. 
 
 2 William v. Allen, 7' Cow. 316 ; Peo- Reynolds, 11 Ind. 170! 
 
 pleexrel. Warring V.Monroe, 4 Wend. ^XJ. S. R.S., §914; Osborn v. City 
 
 200; Ames v. Quimby, 106 U. S. 343; o« Detroit, 28 Fed. Rep. 385; United 
 
 Bowman v. Eai'le, 3 Duer,, 691; Mc- States v. Robson, 9 Pet. 319. 
 Donald V. People,, 126 111: 150; Walter 
 ■». Wadsword, 1 Post. & Fiai 397; 
 
CHAPTER lY. 
 
 EVIDENCE EXCLUDED FROM PUBLIC POLICY. 
 
 L PRIVILEGE OP WITNESSES. 
 
 § 1. In general 
 
 2. Defendant in criminal cases. 
 
 3. Criminating answers. 
 
 4> Cross-examination of a defend- 
 ant wlien he offers himself as 
 a witness in a criminal case. 
 
 5. Exception to criminating an- 
 
 swers. 
 
 6. Questions tending to degrade a 
 
 witness. 
 
 7. Judges. 
 
 IL BETWEEN COUNSEL AND CLIENT. 
 
 8. In general 
 
 9. What communications come 
 
 within the rul& , 
 
 10. Extent of the protection. 
 
 11. Opinion of counsel protected 
 
 when. 
 13. Dooumenta and papers pro- 
 tected. 
 
 13. When the attorney is also a 
 
 party. 
 
 14. Protection perpetual when. 
 
 15. What communications are not 
 
 privileged. 
 
 III. PHYSICIANS AND PATIENTS. 
 
 16. In general. 
 
 17. When physician 
 
 from testifying. 
 
 prohibited 
 
 § 18. Waiver by patients. 
 
 19. Clergymen. 
 
 rV. STATE SECRETS, 
 
 20. In general. 
 
 21. State officials. 
 
 23. Grand jurors. 
 
 V. HUSBAND AND WIFE. 
 
 83. In general. 
 
 24. Marriage — Proof of , necessary. 
 
 25. Illustrations. 
 
 26. Personal privileges. 
 
 VL RES ADJUDICATA, ETtt 
 
 27. In general 
 
 28. Between strangers. 
 
 29. Not pleaded. 
 
 30. Defenses. 
 
 31. Surrogate's decree. 
 
 32. Judgment in criminal case not 
 
 evidence in civil 
 
 33. Parol evidence to explain ju- 
 
 dicial records. 
 
 VIL ESTOPPEL. 
 
 34. Pleading necessary whea 
 
 35. What acts work an estoppel 
 
 36. Insurance — Preliminary proof 
 
 not conclusive. 
 
 37. Offer to settle or compromise. 
 
 38. Parties to negotiable instru- 
 
 ments. 
 
 I. PRIVILEGE OF WITNESSEa. 
 
 § 1. In general. — There is a great difference between priv- 
 ilege and incompetency, thougli the difference has not always 
 been kept in view. An incompetent witness cannot be exam- 
 ined, and, if examined inadvertently, his testimony is not 
 legal evidence ; but a privileged witness may always be exam- 
 
KVIDBNCB EXCLUDED FEOM PDBLIO POLICY. 73 
 
 ined, and his testimony is perfectly legal if the privilege is not 
 insisted on. The privilege of the witness arises in three ways: 
 First, on the ground that to answer the question would expose 
 him to consequences so injurious that he ought to be allowed 
 to decline doing so; secondly, that to answer the question 
 would be a breach of confidence, which he ought not to be 
 forced to commit; thirdly, that to 'compel the witness to an- 
 swer the question would be against public policy. Thus there 
 are some kinds of evidence which the law excludes or dispenses 
 with on grounds of public policy, because greater mischief 
 would probably result from requiring or permitting its admis- 
 sion than from wholly rejecting it. 
 
 § 2. Defendant in criminal case.-r- It seems that in each 
 and every of the states of the United States, except Wyoming, 
 the statement of a defendant on the trial proper in a criminal 
 action is not allowed, unless it comes to the jury under the 
 sanctity of an oath;' and it is declared by statutes in such 
 states that the failure on the part of the defendant to testify 
 in his own behalf does not create any presumption against him.^ 
 Where a defendant fails to take the stand as a witness the 
 prosecuting officer has no right to refer to such omission.' But 
 it is different where the defendant has voluntarily testified to 
 part of the facts in relation to the case.* It has been said that 
 a failure by defendant to call a witness who he claims was pres- 
 ent at the time of the transaction raises a presumption against 
 him.' But the rule is different where such witness is his ac- 
 complice, or where he is equally accessible to the prosecution.* 
 
 § 3. Criminating answers. — That the witness will be subject 
 to a criminal charge, however punishable, is clearly a suiiicient 
 ground for claiming the protection.' It is proper to ask a 
 
 1 People V. Courtney, 94 N. Y. 490. People v. Sweeney, 41 Hun, 332 ; 
 
 2 People V. Rose, 53 Hun, 33 ; Cot- Ormsby v. People, 53 N. Y. 472. 
 
 ton V. State, 87 Ala. 183. 'People v. Kelly, 10 Smith, 74; i 
 
 'Ruloff V. People, 45 N. Y. 213. Pleasant v. State, 15 Ark. 624; Lowe 
 
 * Stover V. People, 56 N. Y. 315; v. Mitchell, 18 Me. 872; Uniled Stales 
 
 Brashear v. State, 59 Md. 563 ; Speigel v. Craig, 4 Wash. C. C. 229 ; People 
 
 V. Hayes, 118 N. Y. 661: People v. v. Herrick, 13 Johns. 83; Ward v. 
 
 Guidici, 100 N. Y. 507 ; People v. Con- People. 3 Hill, 395 ; Warner v. Lucas, 
 
 roy, 153 N. Y. 187. 10 Ohio, 336; People v. Gardner, 144 
 
 5 People V. Hovey, 93 N. Y. 560. N. Y. 119 ; Ex parte Cohens, 104 Cal. 
 
 'State V. Cousins, 58 Iowa, 250; 534; People, Taylor v. Forbes, 143 N. 
 
 Com. V. Webster, 5 Cush. (Mass.) 295 ; Y. 319. 
 
74 RBtES OF BVI0BNGB. 
 
 question the answer to whicfe raaj criminate the witness, as 
 he may answer it, and the court will carefully instrnet the 
 jury that the refusal to answer gives rise to no inference of 
 guilt;*' of course the judge is to decide whether or not the 
 witness is entitled to the privilegei 
 
 It seems to be the general rule that a witness who claims 
 the privilege of refusing to answer a question on the ground 
 that it will tend to criminate Lim is not the sole judge whether 
 it will have that effect; but it is for the court to determine 
 whether there is reasonable grounds to apprehend danger.^ 
 This privilege cannot be; invoked until the question is put to 
 the witness,' and then whether the answer may tend to crim- 
 inate is to be determined under all the circumstances of the 
 case, when the protection is plain, without requiring the wit- 
 ness to explain how the effect is to be produced.* The possi- 
 bility of danger is for the court ; its existence is for the witness. 
 In no case, however, is it necessary that the witness should so 
 far nullify his privilege as to explain exactly how the question 
 asked will injuriously affect him.* 
 
 The privilege exten^ls to particular facts which may prove 
 ^' links " in a chain of evidence.' A prisoner cannot be com- 
 pelled to furnish evidence against himself by trying on shoes, 
 fitting his foot to tracks', etc.? The witness and not the court 
 is the proper judge whether a question put to him has a tend- 
 ency tO; criminate.* The court will instruct him to enable 
 bim to determine, and if the answer forms one link in a chain 
 of testimony against him he is not bound tO' answer. It is the 
 
 » Newcomb v. State, 37 Miss. 383. 155 ;,Lea v. Henderson, 1 Cold. (Tenn.) 
 
 SEx parte Senior, 33 L, R A. 133; M6; Eaton v. Pkrmer, 46 N. H. 300. 
 
 State V. Thaden,. 43 Minn. 853; Ma- "Stokes v. State, 88 Ala. (wBaxt) 
 
 hankev. Cleland, 76 Iowa, 401 ; Com. 619; Blackwell v. State, 67 Ga. 76; 
 
 V. Bell, 145 Pk. St. 374 ; Minter v. Peo- People v. Mead, 50' Mich. 338 ; McGufE 
 
 pie, 39 111. App. 438. t. State, 88 Ala. 147f; State v. Graliani, 
 
 S Eckstein's Petition, 1& Pa. St 74 N. C. 646 ; Walker v. State, 7 Tex. 
 
 509, App. 245 ; Cooper v. State, 86 Ala. 610 ; 
 
 * Taylor, Ev., § 145 ; Friess' v. N. Y. State v. Ah Chuey, 14 Nev. 79 ; State 
 
 C & H. R R Co., 67' Hun, 205. v. Garrett, 71 N. G 85 ; Spicer v. State, 
 
 » Janvrin v. Scammon, 29 N. H. 280'; 69 Ala. 159 ; State v. Prudhonime, 25 
 
 Chamberlain v. Willson, 13 Vt 491. La. Ann. 523; O'Brien v. State, 135 
 
 «1 Burr's Trial (Hopkins & Earle's Ind. 38. 
 
 «d.)', 244; Janvrinv. Scammon, 29 N. 8 state v. Edward's, 2 Nott & McC. 
 
 H. 280 ; Printz. v. Cheeney, 11 Iowa, 13 ; State v. Butler, 47 S. 0. 25 ; Min- 
 
 469 ; Bank of Salina v. Henry, 2 Denio, ter v. Pfeople, 1'89 111. 363. 
 
EVIDENCE EXCLWOEB FKOM PTCBLIC POLICY. 75 
 
 province of the eowct to jiuidge whether any direGt answer to 
 the questions which may be proposedi will furnish evidence 
 against the prisoner. In such a case the witness must himself 
 judge- what his answer will be, and if he say on oath he cannot 
 answer withoat accusing himself, he cannot be compelled to 
 answer.* 
 
 As a general rule no one but the witness himself can object 
 to his testifying as to matters which tend to criminate hira;^ 
 and the defendant in a criminal action cannot complain, though 
 a witness called by him is wrongfully compelled) to testify as 
 to matters which would tend to criminate him.' But where, 
 upon cross-examination to impeach him, a witness is questioned 
 as to a particular wrongful act, whether the q;uestion is perti- 
 nent or not, the witness may object to answering on the ground 
 that it will tend to criminate him; but, if the question is irrel- 
 evant, the party calling the witness may object.* If a witness 
 is exempt by statute from liability for any ©ffiense of which 
 he is compelled to give evidence, or if the offense,, as to him, 
 is barred by the statnte of limitations, he cannot claim the 
 privilege of not answering, ordinarily incident tO" such case ; " 
 and if a statute provides that what a witness testifies shall not 
 be given in evidence against him, his privilege is: gone.' But 
 m Counselman v. Hitchcock'^ it is held that a person is not 
 obliged to answer a question which he claims will tend to 
 criminate him, though under a statute mo evidence given by 
 such a witness could be in any manner used against him in 
 any criminal proceeding, and that no statute which leaves a 
 party or witness subject to prosecution after he answers ques- 
 tions can have the effect of supplanting Ms constitutional priv- 
 ilege.' 
 
 11 Burr's Trial, 245; Kirschner t. < Sharon v. SfiaroiH T9iCaI. 633. 
 
 State, 9 Wis. 140i; Brown v. Walker, « Floy* v. State, T Tfex. 215. 
 
 161 U. S. 591. « People v. Kelly, 24 N. Y. 74 ; State 
 
 2 State V. Lewis,, 56 Kan. 37*; Peo- t. Quail'es, 8Eng. 36Ti. 
 
 pie ex reL Boyer v. Teague, 106 M C. '143 U. E. 547. 
 
 51^6 ; Brown v. State, 32 Tex. Cr. Rep. 8 state v. Pancoast, 5 N. B. 51* But 
 
 119; Lathrop v. Roberts, 16' Colo, the contrary was Iteld ia Gilpin v. 
 
 250 ; Ex parte Senior, 33 L. R A. 133, Daly, 59 Hun; 413; Ex parte Basket, 
 
 37 Fla. 1. 106 Mo. 602 ; ILathrop v. Roberts, 16 
 
 3 State V. Vaai Winkle, 80- Iowa, 15 ; Colo. 250 ; Manchester Ry. Co. v. Con- 
 
 Com. V. Gould, 158 Mass. 499. cord Ry. Co., 20 Atl. Rep. 383, 
 
76 EOLEs OF evide:noe. 
 
 The rule that a witness is not obliged to criminate himself 
 is well established, but this is a privilege which may be waived ; 
 and if the witness consents to testify in a matter tending to 
 criminate himself, he must testify in all respects relating to the 
 matter so far as material to the issue. If he waives the priv- 
 ilege, he does so fully in relation to that act, but he does not 
 thereby waive his privilege of refusing to reveal other unlaw- 
 ful acts, wholly unconnected with the act of which he has 
 spoken, even though they may be material to the issue;* and 
 if the witness understandingly waives his privilege and begins 
 to testify, he must submit to a full cross-examination if re- 
 quired; that is to say, if a witness, knowing that he is not 
 bound to testify concerning a fact which may tend to crira-' 
 inate, voluntarily answers in part, he may be cross-examined 
 as to the whole trarisaction, and subjects himself to the same in- 
 quiries as any other witness, and to impeachment in the same 
 way.^ It is the privilege of the witness, not of the party, that 
 the witness need not testify to facts which will subject him to 
 a criminal prosecution. If he waives his privilege and testifies 
 to part of the transaction in which he was criminally concerned, 
 he is bound to state the whole.' 
 
 While it has been said that neither the witnesses, lawyers 
 nor others can object to his answering incriminating questions,* 
 the rule seems to be different where a party himself is a wit- 
 ness.* Where a witness has stated a fact he is bound to give 
 his reason for stating it, although by so doing he criminates 
 himself.* A person claiming this privilege cannot thereby be 
 discredited by the jury in England.' But the rule seems to be 
 different in Massachusetts.' A person claiming this privilege 
 
 1 Fossdahl v. State, 89 Wis. 482 ; 76 ; Com. v. Prioe, 10 Gray (Mass.), 
 
 Lowe V. Mitchell, 18 Me. 373. 473. 
 
 2 Foster v. Pierce, 11 Cush. 437; estate v. Blake, 25 Me. 350; Hor- 
 
 People V. Carroll, 3 Park. Cr. Eep. 73 ; tenaie v. Kaufman, 97 Pa. St 147; 
 
 Com. V. Smith, 168 Mass. 411; State Pinoard v. State, 30 Ga. 757; People 
 
 V. Griswold, 67 Conn. 390, 33 L. R. A. v. Freshom, 55 Cal. 875 ; Norfolk v. 
 
 227; People V. Hickman, 113 Cal. 80. Gaylord, 28 Conn. 309; Brown v. 
 
 s State V. Foster, 3 Foster, 348 ; Brown, 9 Mass. 520. 
 
 Samuel v. People, 164 111. 379. ' Kose v. Bateman, 1 Ry. & M. 
 
 < Southard v. Rexford, 6 Cow. 254. (Eng.)384. 
 
 5 People V. Brown, 72 N. Y. 571; 8 Andrews v. Trye, 104 Mass. 234. 
 Neal V. Comingliam, 1 Cranch (U. 8.), 
 
EVIDENCE EXCLUDED FEOM PUBLIC POLICY. 77 
 
 cannot be compelled to give his reason, nor the facts from 
 which he fears the evidence will tend to incriminate him.^ 
 
 § 4. Cross-examiuation of a defendant when he offers 
 himself as a witness in a criminal case. — Though a defend- 
 ant in a criminal case, when a witness for himself, may be 
 asked, on cross-examination, as to specific collateral facts or 
 acts in his own career which tend to prove his moral degrada- 
 tion, he cannot be compelled to testify to the conclusions of 
 others to prove such degradation, or to impeach him as a wit- 
 ness, except it be the conviction of a crime, or such confine- 
 ment in prisons or jails as would indicate a conviction. 
 
 At common law, persons convicted of infamous crimes Avere 
 excluded from being witnesses, altogether; but by statutes 
 adopted in most of the United States the disqualification of 
 infamy is removed, and the conviction may be proved to affect 
 credibility.^ In most jurisdictions a person convicted of a 
 crime is a competent witness in any cause or proceeding, civil 
 or criminal, but the conviction may be proved for the purpose 
 of affecting the weight of his testimony, either by the record 
 of conviction or by his cross-examination. The rule goes no 
 further than to permit the witness to be asked as to specific 
 facts or acts in his own career which tend to discredit him or 
 to impeach his moral character; and that only to a reasonable 
 extent, within the discretion of the court, subject to review, 
 however, if that discretion is abused.' 
 
 The discretion which courts possess to permit questions of 
 particular acts to be put to witnesses for the purpose of im- 
 pairing credibility should be exercised with great caution when 
 an accused person is a witness on his own trial. He goes upon 
 the stand under a cloud ; he stands charged with a criminal 
 offense not only, but is under the strongest possible temptation 
 to give evidence favorable to himself. His evidence is there- 
 fore looked upon with suspicion and distrust, and if, in addition 
 to this, he may be subjected to a cross-examination upon every 
 incident of his life and every charge of crime or vice which may 
 
 1 People ex rel. Taylor v. Forbes, n Whart. Ev., § 397. 
 
 143 N. Y. 219; Close v. Olney, 1 3 Spiegel v, Hays, 118 N. Y. 660; 
 
 Benio, 319 ; Wolfe v. Goulard, 15 Abb. People v. Irving, 95 N. Y. 544-546 ; 1 
 
 Pr. (N. Y.) 336 ; State v. Marshall, 36 Whart Ev., § 56 ; People v. Crapo, 76 
 
 Mo. 400; Chamberlain v. Wilson, 13 N. Y. 291. 
 Vt 491 ; Higden v. Heard, 14 Ga. 256, 
 
78 KULES OF EVIDENCE. 
 
 have been made against him, and which have no bearing on 
 the charge for which he is being tried, he may be so prejudiced 
 in the minds of the jury as frequently to induce them to convict 
 upon evidence which otherwise would be deemed insufficient. 
 It is not legitimate to bolster up a weak case by probabilities 
 based upon other transactions. An accused person is required 
 to meet the specific charge made against him, and is not called 
 upon to defend himself against every act of his life. Keither 
 in People v. Brandon,* nor in People v. Connors,^ was the point 
 of relevancy upon the question of credibility presented. In 
 each case the ground of the objection was specific, and did not 
 involve that point.' 
 
 Mr. Greenleaf, in his work on Evidence, lays down the rule 
 that questions, the answers to which, though they may dis- 
 grace the witness in other respects, will not affect the credit 
 due to his testimony, are clearly impertinent and not allow- 
 able ; and even as to questions which do snot tend to discredit 
 him as a witness, although sometimes allowed at msiprins, 
 he regards the rule as Tinsettled. He says : " The great ques- 
 tion, however, whether a witness may not be bound in some 
 cases to answer an interrogatory to his own moral degrada- 
 tion, when, though it is collateral to the main issue, it is rele- 
 vant to his character for veracity, has not yet beea brought 
 into direct and solemn judgment, and must therefore be re- 
 garded as an open question, notwithstanding the practice of 
 eminent judges at nisi prius im favor of the inquiry under the 
 limitations we have above stated." To allow them at all was 
 a departure from the old rule. Lord Eldon said: "It used to 
 be said that a witness could not be called on to discredit him- 
 :5elf, but there seems to be something like a departure from 
 that — I mean that in modern times the courts have permitted 
 questions to show from transactions not in issue that the wit- 
 ness is of impeached character and therefore not so credible."* 
 
 Mr. Phillips, in his work on Evidence, gives the reasons for 
 and against allowing questions collateral to the issue when 
 they affect credibihty. The reasons in favor are that without 
 allowing them there would be no adequate means of ascer- 
 taining what credit is due to the testimony of a witness, and 
 
 1 42 N. Y. 365. > People v. Brown, 72 N. Y. 571. 
 
 2 50 N. Y. 340. * Parkhufst v. Lowten, 3 Swana 316. 
 
EVIDENCE EXCLUDED FKOM PUBLIC POLICY. 7& 
 
 that is especially neoessasry in tlie case of spies, informers and 
 accomplices, in order to prevent property, or even life, to be 
 endangered by the unexpected appearance "of a strange wit- 
 ness.' This reasoning has no application to the case of an 
 accused person who appears as a witness. The prosecution 
 can never be taken by surprise either as to his being a witness 
 or his character. The reasoning against this kind of evidence 
 is far more logical and satisfactory. Mr. Phillips states it 
 substantially as follows: That the obligation of an oath only 
 binds to speak touching the matters in issue; that such partic- 
 ular matters as whether the party has been in jail for felony, 
 or suffered infamous punishment, or the like, are not a part of 
 the issue, because other witnesses could not be called to prove 
 them; that it would be an extreme grievance to a witness to- 
 be compelled to disclose past transactions of his life which 
 may have been since forgotten, and to expose his character 
 afresh to evil report; that if a witness is privileged from an- 
 swering a question which is relevant to the issue because it 
 may tend to the forfeiture of property, with much more rea- 
 son ought he to be excused from answering an irrelevant 
 question to the disparagement and forfeiture of his character; 
 that in the case of accomplices an exception to a certain ex- 
 tent Kiight be made on account of their peculiar situation, 
 etc.^ While the practice has obtained to some extent of al- 
 lowing questions to a witness the answers to which would 
 tend to impeach his credibility, the courts have uniformly 
 excluded questions which do not clearly have that effect. In 
 People V. Genung' the question put to the prosecutor, whether 
 he had not frequentlj' during the session of the court offered 
 to the prisoner that if he would settle the subject-matter of 
 the indictment he would leave the court and not appear as a 
 witness, was held incompetent because it did not impair cred- 
 ibility. In People v. Gray * Jewett, S., said : " The single fact 
 that he (the witness) had been complained of and held for 
 trial for the commission of a crime did not affect his moral 
 character." This was upon the ground that the witness was 
 presumed innocent until convicted. No rule of law is violated 
 in requiring that, to entitle questions to be put to accused 
 
 13 Phil, on Ev. 943 (6tTi Am. ed.). » 11 Wend. 19. 
 
 2 3 Phil, on Ev. 943 (5th Am. ed.). * 7 N. Y. 378. 
 
80 EDLES OF EVIDENCE. 
 
 persons which are irrelevant to the issue and are calculated 
 to prejudice him with the jury, they should at least be of 
 a character which .clearly go to impeach his general moral 
 character and his credibility as a witness. The old rule, not 
 to allow irrelevant questions to such persons, would be pref- 
 erable and more in accordance with sound principles of jus- 
 tice ; but it is unnecessary to go beyond the requirement that 
 the answer must tend directly to impeach him. In People v. 
 Crapo' the prisoner was on trial for burglary and larceny, 
 and, having taken the stand as a witness in his own behalf, 
 was asked on cross-examination if he had been arrested on a 
 charge of bigamy. The court held the question inadmissible, 
 and stated the rule to be that the disparaging questions must 
 either be relevant to the issue or such as clearly go to impeach 
 the moral character and credibility of the witness. In People 
 V. Brown ^ the question asked the party testifying in his own 
 behalf was how many times he had been arrested, and it was 
 held inadmissible. In Kyan v. People' the witnesses were 
 asked if they had been indicted. This was held to be inad- 
 missible. In People ex rel. Phelps v. Oj'er & Term., etc.,* 
 the court say : Their control over questions put to a party as 
 a witness in a criminal case was not absolute, and that, as a 
 general rule, the range and extent of such an examination is 
 within the discretion of the trial judge, subject, however, to 
 the limitation that it must relate to matters pertinent to the 
 issue, or to specific facts which tend to discredit the witness 
 or impeach his moral character; and to the same effect was 
 People V. Casey.' In People v. Noelke* it was held proper 
 to ask a defendant examined as a witness in his own behalf 
 whether he had been tried and convicted of violating the 
 law, etc. 
 
 A party defendant in a criminal action is said to waive his 
 privilege if he voluntarily testifies in his own behalf; and he 
 may be required on cross-examination to answer questions 
 concerning his credibility and matters relevant to the issue, 
 though he may not have been examined in reference thereto 
 on his direct examination.' Thus, it has been held that where 
 
 17ON. Y. 288. 5 73N. Y. 39a 
 
 2 73N. Y. 571. 694N. Y. 137. 
 
 3 79 N. -y. 594. ' People v. Tice, 181 N. Y. 651 ; State 
 * 83 N. Y. 460. X. Allen, 107 N. C. 805. 
 
EVIDENCE EXCLUDED FKOM PDBLIO POLICY. 81 
 
 defendant and his wife are arrested for a crime, and the wife 
 voluntarily testiftes before the coroner, and afterwards as 
 witness for the husband, she may be cross-examined as to what 
 she stated before the coroner to lay a foundation for her im- 
 peachment;' and it has been said that where one jointly in- 
 dicted with defendant testifies before the grand jury to what 
 he knew about the alleged crime, upon the trial of the co- 
 defendant the witness could not refuse to testify on the ground 
 that he might thereby tend to criminate himself.^ 
 
 Where a person is interrogated as to his own acts, he is sup- 
 posed to be familiar with what he himself has done, and can 
 give any explanation that may exist consistent with his inno- 
 cence; and, as the question is collateral to the issues on trial, 
 his answer concludes the other side, and cannot be contra- 
 sdicted. But if he is interrogated concerning the acts and de- 
 cisions of others which tend to disgrace him, the case is different. 
 He may not be able to protect himself by explanation. He 
 may be ignorant of the facts upon which the acts or conclu- 
 sions of others are based. The court will not stop to tr}' the 
 merits of such collateral accusations, and the witness may thus 
 be injured and disgraced by results for which he is not respon- 
 sible. A person under our S3'steni of jurisprudence can only 
 be convicted of a crime after a fair trial in the appointed way, 
 where he can be fully heard in his defense, and where he can 
 be protected by all the presumptions with which the law sur- 
 rounds a defendant upon his trial for crime. A conviction 
 upon such a trial may be properly shown to impair the credit 
 of a witness, though it is the act of others. It is the deliber- 
 ate act of the law upon a trial duly had before the court and 
 a jury. A witness cannot be compelled to state whether he 
 has been indicted. An indictment is an accusation from a 
 body charged and sworn to investigate crime upon the oath 
 of witnesses, and it acts judicially.' 
 
 § 5. Exception to incriminating answers. — In most jurisdic- 
 tions it is provided by statute that no person shall be excused 
 from testifying, in any civil or legal proceeding, to any facts 
 showing that a thing in action has been bought, sold or received 
 
 i People V. Gosch, 83 Mich. 32 ; State ' People v. Dorthy, 80 N. Y. State 
 V. Peifers, 80 Iowa, 580. Rep. 970 (1897). 
 
 estate V. Van Winkle, 80 Iowa, 15. 
 6 
 
82 ROLES OF EVIDEN'Cft. 
 
 contraiy to law, upoti the ground that his testimony migM 
 tend to convict him of a crime. Bnt in such cases it is pre^ 
 vided that no evidence derived from the examination of suoti 
 person shall be received a:gainst him upon a criminal prosecu- 
 tion ; and that in cases of bribery a person offending is a com- 
 petent witness against another person so offending, and may 
 be compelled to attend and testify upon a;ny trial, hearing, pro- 
 ceeding or investigation, in the same manner as any other 
 person. But the testimony sd given cannot be used in any 
 prosecution, civil or criminal, against the person so testifying.* 
 It is also provided by statute in most jurisdictions that a per- 
 son offending against any provision of the law against dueling 
 is a competent witness against any other person offending ifl 
 the same transaction, and must not be excused from testifying 
 or answering any question, upon an investigation or trial for 
 an offense against such law, upon! the ground that his test^ 
 toony might tend to convict him of a crime. But in all suc& 
 cases it is provided that evidence given by a person so testify- 
 ing cannot be received against him in any criminal action of 
 proceeding. It is also provided by statute in most jurisdictions 
 that no person shall be excused from giving testimony upon 
 any investigation or proceeding for a violation of the lavs^ 
 against gambling, upon the ground that such testimony would 
 tend to convict him of a crime ; but such testimony cannot be 
 received against him upott any criminal examination or pro- 
 ceeding.^ 
 
 § 6. Questions tending to degrade a witness. — Every ques- 
 tion must be answered by a witness, whether it tend to de- 
 grade him or not, if it be material to the issue, unless it tend 
 to render him liable to penalties and punishment.' As the 
 credibility of a witness is always in issue, he must therefore 
 answer questions which are in no other way material than as 
 affecting his credibility.* On the other hand, every questioo 
 which is not material to the issue is improper; and it is not 
 
 1 People V. Sharp, 107 N. Y. 437; States v, Brown, 1 Sawy. 531; State 
 
 Floyd V. State, 7 Tex. 215; Wood v. v. Staples, 47 N. EL 113; Richmond v. 
 
 State, 3 Mo. 98. State, 2 Green, 533. 
 
 2 People V. Spencer, 66 Hun, 149; 'Brown v. Walker, 161 U. S. 591; 
 
 SteinhaVt v. Farrell, 8 N. Y. State Rep. State v. Blarikey^, 3 Minu. 246, 
 
 892; People v. Kelly, 34 N. Y. 14; «Lohman v. People, 1 N. Y. 379^; 
 
 People V. Brewer, 37 Mich. 134 ; United Houte v. Co*., 5 Grat (Va.) 66* 
 
EVIDENCE EXCLUDED FROM PUBLIC POLICY. SS' 
 
 only Improper, but unbecoming, to put questions to a witness 
 the very putting of which tends to degrade him, and which, 
 not being material, he cannot be compelled to answer.' And 
 as every witness is entitled to the protection of the court in 
 which he appears, any attempt to degrade him unnecessarily 
 will immediately be repressed without waiting for the witness 
 to object to the question.^ 
 
 In practice, the asking of questions to degraide the witness 
 is regulated by the discretion of the court in each particular 
 case. It is entirely true that inquiries on irrelevant topics to 
 discredit the witness may be permitted on the trial in the dis- 
 cretion of the judge; and equally true that such inquiries may 
 be excluded without infringing any legal right of the parties. 
 No fixed rule could be devised defining the right and limiting 
 the extent of irrelevant inquiry which would be just or safe 
 in universal application.? Where a witness is compelled to 
 answer disparaging questions, the party calling him should be 
 permitted to give general evidence in support of his character 
 for truth.* It seems that the witness must claim his privilege 
 in order to give the court power to pass upon the question if 
 the inquiry is relevant, and a party is not entitled to an an- 
 swer to an inquiry tending to disgrace the witness unless the 
 evidence would bear directly upon the issue; and the witness 
 is under no obligation to answer such question if propounded.* 
 While it is said that where a question tends to degrade tbo 
 witness he alone can take the objection, strictly speaking, 
 there is no case in which a witness is at liberty to object to a 
 question. That is the office of the party or the court. The 
 right of the witness is to decline to answer if the court sus- 
 tains his claim of privilege. Where the question is relevant, 
 it cannot be excluded! on the objection of the party, and the 
 witness is free to assert or waive his privilege. But when the 
 question is irrelevant, the objection properly proceeds froitt 
 the party, and the witness has no concern in the matter unless 
 it be overruled by the judge. The question always is whether 
 the court before whom the cause is tried is authorized, in the 
 
 ' Real V. People, 43 N. Y. 870. « Great Western T. Oo. v. Looirii^ 
 
 2 Le Beau v. People (N. Y.), 6 Park. 32 N. Y. 127. 
 Cr. Rep. 176. ''People v. Rector, 19 Wend. 569. 
 
 5 Lohman v. People, 1 N. Y. 380. 
 
§4: EULES OF EVIDENCE. 
 
 exercise of sound discretion, to exclude inquiries as to particu- 
 lar tra^nsactions irrelevant to the issue, and tending to degrade 
 the witness, on the objection of the partj'-, without putting the 
 witness to his election ; and, as we have seen, every court hav- 
 ing original jurisdiction is authorized to reject evidence on 
 immaterial issues, though objected to by neither party.^ A 
 witness is not bound to give answers which may stigmatize 
 or disgrace him.^ A witness is not bound to answer any ques- 
 tions which may impeach his conduct as a public officer.' 
 
 § 7. Judges. — Judges and justices of the peace cannot be 
 asked to disclose anything that transpired at their consulta- 
 tions, but may be examined to identify a case, or establish facts 
 which do not appear from the record of a case, or to prove the 
 testimony of a witness.* 
 
 II. BETWEEN COUNSEL AND CLIENT. 
 
 § 8. In general. — If an attornej', touching matters that come 
 within the ordinary scope of professional emploj'ment, receive 
 a communication in his professional capacity either from a 
 client, or on his account and for his benefit, in the transaction 
 of his business, or, which amounts to the same thing, if he 
 commits to paper in the course of his employment, on his 
 client's behalf, matters which he knows only through his pro- 
 fessional relation to the client, he is not only justified in with- 
 holding such matters, but bound to withhold them, and will 
 not be compelled to disclose the information or produce the 
 paper in any court of law or equity, either as party or as a 
 witness.* In other words, no legal adviser is per;liitted, whether 
 during or after the termination of his employment as such, 
 
 ■ 1 Corning v. Corning, 6 N. Y. 97. * Welcome v. BatcheWer, S'JMe. 85 ; 
 
 estate V. Bailey, 1 Penn. 415; Jackson v. Humphrey, 1 Johns. 498; 
 
 Vaughn v. Ferine, 2 id. 628 ; Baird 1 Whart Ev. 600 ; People v. Miller, 2 
 
 V. Cochran, 4 Serg. & Rawie, 400 ; Park. Cr. Rep. 197. 
 
 Resp. V. Gibbs, 3 Yeates, 439, 437; 6 Stephen's Dig. of Law of Ev., art 
 
 Galbraith v. Eichelberger, id. 515; 115; Nelson v. Becker, 32 Neb. 99; 
 
 Bell's Case, 1 Browne, 376; Salton- State v. James. 34 S. C. 49 ; Matthews 
 
 stall's Case, 1 Rogers' Rec. 134; Stout v. Hoagland, 48 N. J. Eq. 455; Alex- 
 
 ■7. Russell, 3 Yeates, 334; People v. ander v. United States, 138 U. S. 353; 
 
 Herrick, 13 Johns. 83. Swain v. Humphrey, 42 111. App. 370; 
 
 s Jackson v. Humphrey, 1 Johns. Coleman, Matter of. Hi N. Y. 320; 
 
 498; Marbury v. Madison, 1 Crancb, Hurlbert v. Hurlbert, 138 N. Y. 420; 
 
 144. Mahanke v. Cleland, 76 Iowa, 401. 
 
EVIDENCE EXCLUDED FROM PUBLIC POLICY. 85 
 
 unless with his client's consent, to disclose any communication, 
 oral or documentary, made to him as such legal adviser, by 
 or on behalf of his client, during, in the course of, and for the 
 purpose of his employment, whether in reference to any matr 
 ter as to which a dispute has arisen or otherwise, or to disclose 
 any advice given by him to his client during, in the course of, 
 and for the purpose of such employment. It is immaterial 
 whether the client is or is not a party to the action in which 
 the question is put to the legal adviser.' And the presumption 
 is that all communications between attorney and client are con: 
 fidential.'' The burden of proving that such relationship exists 
 rests upon the party objecting to the testimony.' Where a 
 defendant, supposing that* he was dealing with one who was to 
 act as his attorney, makes to him confidential communications, 
 such communications are privileged, whether such person who 
 assumed to so act was an attorney or not.* Such communica- 
 tions when once made are forever inviolable.' But the fact 
 that an attorney has once been retained an5 acted for a party 
 in one case or proceeding does not make communications be- 
 tween him and his former client confidential, after he has re- 
 fused to act for him in the case in which such communications 
 are offered.' Where the testimony offered is in part compe- 
 tent and in part incompetent, a general objection on the ground 
 of privilege is too broad.' On the other hand, where the rela- 
 tion between the parties does not appear until the cross-exam- 
 ination of the witness, it is error for the court not to strike out 
 such incompetent testimony.* Where the attorney denies that 
 such relation existed at the time of the communication, it is for 
 the court to say whether it did or not ;' and while an attorney 
 cannot judge for himself as to whether or not a document in 
 his possession is privileged when he refuses to produce it or to 
 
 1 Stephen's Dig. of Law of Ev., art. * People v. Stewart, 75 Mich. 21. 
 115; Chirac v. Eeinecker, 11 Wheat ^ Meyers v. Dorman, 34 Hun, 115. 
 280 ; McLennon v. Longfellow, 32 6 People v. Hess, 8 App. Div. 143 ; 
 Me. 494 ; Whiting v. Barney, 30 N. Y. Piano Mfg. Co. v. Frawley, 68 Wis. 
 380, 38 Barb. 393 ; Graham v. People, 577. 
 
 63 id. 468. "Brennan v. Hall, 39 N. Y. State 
 
 2 Sharon v. Sharon, 79 Cal. 633. Rep. 130. 
 
 'Sharon v. Sharon, 79 Cal. 633; 8 Loveridge v. Hill, 96 N. Y. 222. 
 Renlhan v. Dennin, 103 N. Y. 573; 'Bacon v. Frisbie, 80 N. Y, 394. 
 Rousseau v. Bleau, 130 id. 177. 
 
8(3 KULES cr EVIDENCE. 
 
 testify, and states upon oath that the transaction was privi- 
 leged, his position will be sustained.' 
 § 9. What communications come within the rule.— In 
 
 order to bring a communication within the protection of the 
 rule, it must have been made to the counsel, attorney or solic- 
 itor acting for the time being in the character of a legal ad- 
 viser.' This protection extends also to all the necessary organs 
 of communication between the attorney and his client; an 
 interpreter, and an agent or clerk, being considered as stand- 
 ing in precisely the same situation as the attorney himself, and 
 under the same obligation of secrecy.' This is a rule of law 
 for the protection of the client ; the privilege does not attach 
 if the person consulted be not a member of the profession, al- 
 though supposed to be so by the client.^ 
 
 § 10. Extent of the protection. — As between client and at- 
 torney, the protection extends to every communication which 
 the client makes to his attorney as his legal adviser, for the 
 purpose of professional advice or aid upon the subject of his 
 rights and liabilities having a lawful object.^ But if the pur- 
 pose contemplated be a violation of law, it is not a privileged 
 communication, because it is not an attorney's duty to con- 
 trive fraud.* But any statement made by a party to his legal 
 adviser after the commission of a crime is privileged.' It is 
 not necessary that any judicial proceeding in particular should 
 have been commenced or contemplated; it is enough if the 
 matter in hand may by possibility become the subject of judi- 
 cial inquiry.* 
 
 Thus, an attorney in receiving the directions and instruc- 
 tions of one intending to make a will, although he asks no 
 questions and gives no advice, but simply reduces to writing 
 the directions given him, still acts in a professional capacity, 
 and is prohibited from disclosing any communication so made 
 to him by his client." He ma}', however, testify as to the acts 
 
 ^McClure t. Goodenough, 19 Civ. * Russell v. Jackson, 15 Jur. 1117. 
 
 Pro. Rep. ((N.Y.) 191; Mitchell's Case, « Baok of TJtica v. Mersereau, 3 
 
 12 Abb. Pr. (N. Y.) 249. Barb. Ch. 5218. 
 
 2Sargeant v. Hampden, 38 Me. 581. 'State v. James, 34 S. C. 49; Alex- 
 
 3 Jackson v. French, 3 Wend. 337 ; ander v. United States, 138 U. S. 35a 
 Power V. Kent, 1 Cow. 211 ; Sibley v. «Fo.'!ter v. Hall, 12 Pick. 89. 
 Waffle, 16 N. Y. 180. sLoder v. Whelpley, 111 N. Y. 239, 
 
 4 Sample v. Frost, 10 Iowa, 266 ; 19 N. Y. State Rep. 631. 
 Barnes v. Harris, 7 Cush. 576. 
 
EVIDENCE EXCLUDED FBOM PUiBLIC POLICY. 87 
 
 of the testator at its executiop tending to support the v/iil 
 which is attacked.* But an attorney who drew and was a wit- 
 ness to a will as counsel for testator cannot testify to profes- 
 sional transactions with the deceased other than the circum- 
 stances immediately surrounding the execution of the will upon 
 a contest as to the probate of the will.^ So. an attorney who 
 drew a will cannot testify who gave him the instructions to 
 do so, unless they were given in the presence of a third person.- 
 And the privilege of professional secrecy is not confined to the 
 knowledge derived by counsel from communications made to 
 him by or in confidence with clients, but extends to informa- 
 tion obtained from documents submitted for his inspection or 
 custody.* An attorney for a prisoner charged with stealing 
 silver dollars cannot testify that his client paid him as a re- 
 tainer fifty silver dollai's.^ So an attorney cannot testify to 
 instructions received from his client to enable him to carry out 
 the provisions of a will;* nor can he testify to declarations of 
 fais client that he held the property mentioned in a deed for 
 the benefit of another,' .although he may testify that be drew 
 a deed for his client conveying his property to a certain per- 
 son.* A pleading is not regarded as privileged when found 
 among the papers of the client's wife, whose title was con- 
 firmed by it.' And where two o.r more persons consult an 
 attorney for their mutual benefit, the attorney may testify in 
 regard to communications so made to him by either of them, 
 where the action is between those parties.'" Letters passing 
 feetween an attorney and his client, confidential in their nat- 
 ■ure, are privileged;'^ so are all papers executed between an 
 attorney and client in reference to the action.'^ • And while an 
 attorney may be compelled to produce papers received from 
 his client for the purpose of the inspection of the court, he 
 
 1 Re McCarthy, 55 Hun, 7, 88 N. Y. ^ State v. Dawson, 90 Mo. 149. 
 etateRep. 342. But see Re McCarthy's *Matter of Coleman, 111- N. Y. 320. 
 Will, 38 id. 124 ; Re Wax's Estate, 106 ' Mclntyre v. Costello, 34 N. Y. State 
 Cal. 343. Rep. 765. 
 
 2 Re Bedlow's Will, 67 Hun, 408, 51 ■«Sommer v. Oppenheim, 78 N. Y. 
 N. Y. State Rep. 782. State Rep. 396. 
 
 3 Re McCarthy's Will, 48 N. Y. State » Wilson v. Clancy, C App. Div. 499. 
 Rep. 315. But see Re Gagan's Will, m Sanford v. Frost, 9 App. Div. 55 ; 
 66 Hun, 633, 49 N. Y. State Rep. 366. Cahoon v. Com., 31 Gratt. (Va.) 832. 
 
 < Matthews v. Hoagland, 48 N. J. " S'eJden v. State, 75 Wis. 271. 
 Eq. 455. »2 Genet v. Ketcham, 62 N. Y. 626. 
 
88 KULES OF EVIDENCE. 
 
 cannot be required to deliver them to the opposite party; 
 nor will he be allowed to put them in evidence without his 
 client's consent.' An attorney may be compelled to testify to 
 the delivery to him of papers or property for delivery to an- 
 other j^ that his client directed him to make an assignment of 
 certain instruments.^ So all conversations made by two inter- 
 ested parties to an attorney in the presence of each other may 
 be given in evidence by the attorney in an action between 
 them, or their personal representatives after their death.* Com- 
 munications to an attorney in the presence of his friends are 
 not privileged.' Directions by an attorney to his client, to em- 
 ploy another person to assist in the action, are not privileged.' 
 And it is said that while communications by a decedent to his 
 attorney in relation to the drawing of his will are competent in 
 support of the will,' such communications are not competent 
 to destroy the will.^ Where a person is not a party to the 
 action in which such confidential communications are offered, 
 an objection by the party against whom they are offered upon 
 the ground of public policy will be sustained.' In some juris- 
 dictions it is held that, where a client goes upon the stand, he 
 may be compelled upon cross-examination to testify touching 
 the subject-matter of confidential communications or any mat- 
 ters which have been confided to him by his counsel.'" In other 
 jurisdictions it is held that such communications are absolutely 
 privileged, and that the protection of the client and counsel in 
 this respect are co-extensive." 
 
 § 11. Opinion of counsel protected when. — It seems that 
 a party is not obliged to discover and produce the opinion of 
 
 1 Mitchell's Case, 12 Abb. Pr. (N. Y.) id. 242 ; Matter of Chase, 41 Hun, 203 ; 
 
 249; Peck v. Williams, 13 id. 68; Es- In re Chapman, 27 Hun, 573; Matter 
 
 tate of Hoyt, 7 Civ. Pro. Rep. (N. Y.) of McCarth.v, 50 Hun, 7. 
 
 374 ; People v. Sheriff, 29 Barb. 374. " Bacon v. Frisbie, 80 N. Y. 394. 
 
 -Rosseau v. Bleau, 131 N. Y. 177. loCom. v. Nichols, 114 Mass. 285; 
 
 3 Brennan v. Hall, 131 N. Y. 160. King v. Barrett^ 11 Ohio St 261. 
 
 *Hurlbut V. Hurlbut, 128 N. Y. 420. u Dittenhofer v. State, 34 Ohio St 
 
 * People V. Buchanan, 145 N. Y. 1 ; 91 ; Bigler v. Beher, 43 Ind. 112; Bobo 
 
 Honlenbeck v. McGibbon, 60 Hun, 26. v. Bryson, 21 Ark. 287 ; Barker v. 
 
 « Martin v. Piatt, 51 Hun, 429. Kuhn, 38 Iowa, 395; Hemmiugway 
 
 ■'Sheridan v. Houghton, 16 Hun, v. Smith, 28Vt401; State v. White, 
 
 628. 19 Kan. 445 ; Carues v. Piatt (N. Y.), 
 
 8 Matter of McCarthy, 38 N. Y. 15 Abb. Pr. (N. S.) 337. 
 State Rep. 124 ; Matter of O'Neil, 26 
 
EVIDENCE EXCLUDED FROM PUBLIC I'OLIOY. 89 
 
 counsel, nor can he be made to disclose any communication 
 between himself and his legal adviser which his legal adviser 
 could not disclose without his permission ; ' but this rule only 
 refers to criminal cases.* Where a party testifies that he was 
 advised by an attorney that he had a right to take the prop- 
 erty in question, it is error to allow such attorney to testify 
 as to what counsel or advice he gave.' But asking a witness 
 on cross-examination vfhether he had ever communicated to 
 his attorney a fact to which he had testified is not a violation 
 of the rule.' 
 
 § 12. Documents and papers protected. — An attorney is 
 not bound to produce any paper, document or deed left with 
 him by his client for professional advice ; or a letter written 
 -him by his client ; ' nor letters which, though not written by 
 his client, will affect his client's interest in an action;' and 
 whether the object of leaving the document with the attorney 
 was for professional advice or for another purpose is for the 
 judge to determine. The attorney may be examined to the 
 fact of the existence of the papers in order to let in secondary 
 evidence of their contents.'' As documents which are not 
 privileged in the hands of a party cannot be made so by plac- 
 ing them in the hand of his counsel,' if the attorney was 
 counseled merely as a conveyancer, to draw papers of convey- 
 ance, the communications made to him in that capacity are 
 protected,' even though he was employed as the mutual ad- 
 viser and counsel of both parties." But a communication be- 
 tween an attorney and client, when both parties to the action 
 are present, is not a confidential communication so as to be 
 inadmissible.'' It is different, however, between either of the 
 parties and third persons.'^ 
 
 1 Swenk v. People, 20 III. App. Ill ; 'Jackson v. McVey, 18 Johns. 330 ; 
 Gage V. Gage, 13 App. Div. 555. Jackson v. Denison, 4 Wend. 558. 
 
 2 But see "Weinstein v, Reid, 25 Mo. ^ Edison Electric Light Co. v. 
 App. 41. Onited States Electric Light Co., 44 
 
 3 People V. Hillhouse, 80 Mich. 580. Fed. Rep. 294. 
 
 4 Freeman v. Brewster, 93 Ga. 648 ; ' Barry v. Coville, 53 Hun, 620, 25 
 Davenport Co. v. Pennsylvania R. N. Y. State Rep. 658. 
 
 Co., 166 Pa. St. 480 ; Re Seip's Estate, "> Wilson v. Troup, 7 Johns. Ch. 25. 
 
 163 Pa. St. 423. " Smith v. Crego, 54 Hun, 22, 26 
 
 5 Arnold v. Cheesebrough, 41 Fed. N. Y. State Rep. 64 ; Denser v. 
 Rep. 74. Walkup, 48 Mo. App. 625 ; People v. 
 
 'Re Whitlock, 51 Hun, 351, 21 Buchanan, 145 R Y. 1. 
 N. Y. State Rep. 719. 12 Oruber v. Baker, 30 Nev. 453. 
 
90 RULES OF EVIDEKjCE. 
 
 § 13. When the attorney is also a party.— Communica- 
 tions of a client to bis attorney are not privileged, if the at- 
 torney is himself a party to the transaction, or, in other, words, 
 if he were acting for himself, though he might also be em- 
 ployed by another. Thus, where an attorney for defendant 
 in proceedings supplementary to execution has testified that 
 he had some property of defendant in his possession, he. may 
 be required to state what he had and what he had not done 
 with it.' 
 
 § 14. Protection perpetual when. — The protection given 
 by law to communications between an attorney and his client 
 does not cease with the termination of the suit or business in 
 JWihich they were made. The seal of the law once fixed upon 
 them remains forever, unless removed by the party himself in 
 whose favor it was placed. It is not affected by the party's 
 ceasing to employ the attorney and retaining another; nor by 
 the death of the client. 
 
 § 15. What communications are not privileged. — A state- 
 ment made, or a document existing, prior to or independent 
 of the relationship out of which alone the privilege springs, 
 will not become privileged merely by reason of its being sub- 
 iinitted to the legal adviser for any purpose which would create 
 privilege had they been first known or first made solely for 
 the purpose or in consequence of such relation;^ the state- 
 ment, whether oral or written, must come into existence as a 
 communication made for the express purpose of obtaining pro- 
 fessional advice.^ Thus, the outside of a deed whereby its date 
 and general character may be identified (though its contents 
 are privileged),^ or the residence of the client,' or other mat- 
 ters of fact not connected with legal advice,^ are not privileged, 
 although communicated in the course of professional commu- 
 nications, unless themselves communicated confidentially for 
 the purpose of legal advice. 
 
 Where the parties to the suit occupy towards each other the 
 (relation of agent and principal, trustee iand cestui que trust, 
 
 '.state V. Hedp;epeth, 125 Mo. 14. * Bursill v. Tanaer, 16 Q. B. D. 1. 
 
 2Dwyer-v. CoHins, 7 Ex. 689; Lyell 5 Ex parte Campbell, Re Cathcarti 
 
 y. Kennedy, 9 A pp. Ca?. 81; Pearce 5 Gh. 703. 
 
 V. iFoster, 15 Q. B. D. 114. « Bramwell v. Lucas, 3 B. & C. 746. 
 
 3 Cleave v. Jones, 7 Ex. 421. 
 
EVIDENCE EXCLUPED FEOM PUBLIC POLICY. 91 
 
 corporation and member of the corporation, and the like, and 
 it appears that communications or documents in the possession 
 of such agent, trustee or corporation which would be privi- 
 leged as against strangers have been obtained in their afore- 
 said capacity, the other party will be thereby entitled to have 
 them disclosed and to resist any claim of privilege in respect 
 of the sanje.' So the communication of a testator to his legal 
 3,dviser are not protected as between two persons claiming 
 under him;^ the communications, to be protected, must be 
 made confidentially in reliance on his professional capacity.'' 
 But the rule applies to communications connected with any- 
 thing within the prdinary scope of a solicitor's business, and 
 extends, therefore, to communications connected with the sale 
 of estates or the raising of money .^ 
 
 Confidential communications do not extend to any fact ob- 
 served by any legal adviser, in the course of his employment 
 as such, showing that any crime or fraud has been committed 
 since the commencement of his employment, whether his at- 
 tention was directed to such fact by or on behalf of his client 
 or not ; nor does it extend to any fact with which such legal 
 adviser became acquainted otherwise than in his character as 
 such. Thus, an attorney may be compelled to disclose the 
 name of the person by whom he was retained;* the character 
 in which his client employed him at the time when an instru- 
 ment was put into his hands; the fact of his paying over to 
 his client moneys collected for him ; the execution of a paper 
 by his client ; 3, statement made by hiiri to the adverse party ; 
 his client's handwriting; the identity of his client ; or the place 
 where an acknowledgment of a paper was taken.' Profes- 
 sional communications are not privileged when they are for 
 an unlawful purpose, having for their object the commission 
 of a crime;' or when made for the purpose of publication or 
 
 1 Ee Postlethwaite, 35 Ch. D. 733 ; * Carpenael v. Powis, 1 Phill. 687, 
 Mayor and Corporation of Bristol v. 693 ; Turquand v. Knight, 3 M. & W. 
 Cox, 36 Gh. D. 678. 98. 
 
 2 Russell V. Jackson, 9 Hare, 393. 5 Brown v. Payson, 6 N. H. 443 ; 
 
 3 McCorquodale v. Bell, 1 G. P. D. Turner v. Warren, !&) Pa. St. 336. 
 471 : Anderson v. Bank of British * Mutual Life Ins. Go. v. Corey, 54 
 Columbia, 3 Ch. D. 644; Gardner v. Hun, 493, 27 N. Y. State Rep. 608. 
 Irwiu, 4 Ex. D. 49; Wheeler v. Le 'Matthews v. Hoagland, 48 N. J. 
 Marchant, 17 Ch. D. 675 ; O'Stea r. Eq. 4.55 ; People v. Van Alstine, 57 
 Wood (1891), P. D. 386. Mich. 62; Tyler v. Tyler, 186 111. 535, 
 
9:5 F.ULES OF EVIDENCE. 
 
 communication to another.' Where the communication was 
 made before the attorney was employed as such, or after his 
 employment had ceased;^ or where, though consulted by a 
 friend because he was an attorney, yet he refused to act as 
 such, and was therefore only applied to as a friend ; or where 
 the matter communicated was not in its nature private, — in 
 all such cases the attorney is not exempted from disclosing. 
 A plaintiff, bj' calling his attorney to testify as to communi- 
 cations made by him to the attorney, thereby waives the 
 privileged character of the communications.' So he waives 
 such privilege by requesting his attorney to act as subscrib- 
 ing witness to his will.* Communications to a law student, 
 made while he is employed to advise and assist in a law-suit, 
 are not privileged ; ' and so communications made by a persou 
 to an attorney in ignorance of his professional character and 
 without any purpose of securing his professional aid, or to the 
 clerk of an attorney, but of which fact the one making them 
 is ignorant, are not privileged," as the rule as to Ihe inviolabil- 
 ity of professional confidence applies as between attorney and 
 client only to communications made for the purpose of pro- 
 fessional action and aid, and the secrecy imposed extends to 
 no other persons than those sustaining confidential relation- 
 ship;' and if the parties sustaining a confidential relation to 
 each other hold their confidences in the hearing of third per- 
 sons, whether they be necessarily present as officers or are 
 indifferent bystanders, such third persons are not prohibited 
 from testifying to what they heard.' But in some states such 
 fact does not remove the privilege and make the attorney's 
 
 9 Am. St. Rep. 642; Everett v. State, * Re Lamb's Will, 18 N. Y. Supp. 
 
 30 Tex. App. 682. ' 173; Re Wax's Estate, 106 Cal. 343; 
 
 iBaitlett V. BuDD, 56 Hun, 507, 31 Deraing v. Butcher, 91 Iowa, 112; 
 
 N. Y. State Rep. 319 ; White v. State, Pance v. W;augh, 135 Ind. 143. 
 
 80 Ala. 69. sschubkagel v. Dierstein, 131 Pa. 
 
 2 Theisen v. Dayton, 82 Iowa, 74 ; St. 46. 
 
 Wadd V. Hazleton, 62 Hun, 602, 43 SHawes v. State, 88 Ala. 37. 
 
 N. Y. State Rep. 686 ; Patten v. Glover, ' Cotton v. State, 87 Ala. 75 ; House 
 
 1 App. D. C. 465. V. House, 61 Mich. 69. 
 
 'Smith V. Crego, 54 Hun, 22, 26 8 Cotton v. State, 87 Ala. 75 ; Blount 
 
 N. Y. State Rep. 64 ; Taylor v. Pegrim, v. Kimpton, 155 Mass. 378, 31 Am. 
 
 151 111. 106; Gurley v. Park, 135 Ind. St Rep. 554; Tyler v. Hall, 106 Mo. 
 
 440 ; Denver Tram. Co. v. Owens, 20 313 ; Re McCarthy, 55 Hun, 7, 28 N. 
 
 Colo. 107 ; State v, Kidd, 89 Iowa, 54 ; Y. State Rep. 342. 
 Toms V. Beebe, 90 id. 612. 
 
EVIDENCE EXCLUDED FROM PUBLIC POLICY. 93 
 
 testimony concerning them admissible;' while in others the 
 attorney may be called to testify to them.^ Where there are 
 two or more plaintiffs or two or more defendants in an action, 
 who are interested in the proceedings and have made confi- 
 dential communications to their common counsel, in relation 
 to such matter, the matters relating to their common cause 
 are privileged as to all the parties so counseling, and the at- 
 torney so counseled v/ith by them is not a competent witness 
 as to such communications unless all of such common parties 
 waive their privilege. It is not sufiicient to render their said 
 attorney a competent witness as to the same that a majority 
 of the parties have united in waiving such privilege.' Com- 
 munications from the maker of an instrument to a scrivener 
 employed by him to draw it are not privileged within the rule 
 governing relations between attorney and client;* nor are 
 those made to an attorney and abstractor of titles by one who 
 employed him merely to search the title and make the abstract, 
 and not for the purpose of obtaining advice with reference to 
 the title.' One who is both a creditor and an attorney for 
 other creditors cannot be excluded from being a witness so 
 far as his interest is concerned.* The testimony of an attor- 
 ney who was not retained by either party to a transaction, 
 but who acted as a sort of mutual friend between them, is 
 not admissible.' The statements of an attorney which are 
 made to be communicated to others cannot be excluded from 
 evidence on the ground that they are privileged.* So a con- 
 sultation by two or more persons with an attorney for their 
 mutual benefit is not as between them privileged as being be- 
 tween attorney and client.' The attorney who draws a deed 
 
 1 Blount V. Kimpton, 155 Mass. 378, 39 N. Y. State Eep. 130 ; State, Martin 
 31 Am. St Rep. 554; Tyler v. Hall, v. Tally, 103 Ala. 35; Brady v. State, 
 106 Mo. 313. 39 Neb. 539. 
 
 2 Carey v. Carey, 108 N. C. 367 ; Re » Stallings v. Hullum, 79 Tex. 431. 
 Smith's Will, 61 Hun, 101, 39 N. Y. eReagen v. Aiken, 138 U. S. 109. 
 State Rep. 698; Greer v. Greer, 58 ' Haulenbeck v. McGibbon, 60 Hun, 
 Hun, 351, 34 N. Y. State Rep. 448; 26, 38 N. Y. State Rep. 653, 14 N. Y. 
 Sheldon v. Sheldon, 133 N. Y, 1, 33 Supp. 393. 
 
 N. Y. State Rep. 754. 8 Ferguson v. McBean, 91 Cal. 63. 
 
 s Doe V. Watkins, 3 Bing. 431 ; Bank 9 Hard v. Ashley, 44 N. Y. State 
 
 V. Messereau, 3 Barb. Ch. 596; Rey- Rep. 793; Hurlburt v. Hurlburt, 40 
 
 nell V. Sprye, 10 Beav. 51. id, 430, 138 N. Y. 430. 
 
 * Brennan v. Hall, 131 N. Y. 160, 
 
94 KULES OF EVIDENCE. 
 
 at the request of the grantor is a competent witness to prove 
 its delivery to him for the purpose of delivering to the 
 grantee.* He is also competent to prove that his client signed 
 a certain instrument and the facts and circumstances con- 
 nected with the signing.^ So an attorney is a competent wit- 
 ness to testify to payments made by him to a client for the 
 purpose of establishing the genuineness of the latter's signa- 
 ture to a contract in evidence and under which the payments 
 were made.' 
 
 III. PHYSICIANS AND PATIENTS. 
 
 § 16. In general. — By the common law physicians may be 
 compelled to disclose communications made to them in pro- 
 fessional confidence.* But as a general rule it is provided by 
 statute in the different states of this country that no person 
 duly authorized to practice physic or surgery shall be allowed 
 to disclose any information which he may have acquired in 
 attending any patient in a professional character, and which 
 information was necessary to enable him to prescribe for such 
 patient as a physician, or to do any act for him as a surgeon. 
 These statutes have been modified and changed from time to 
 time in the different states. The testimony of a physician or 
 surgeon is not incompetent unless the information acquired 
 by him while attending a patient was necessary to enable him 
 to act in his professional capacity.'' They may state 'the fact 
 of their attendance upon the patient, but not his condition, 
 even as regards sobriety, where knowledge was obtained in a 
 professional capacity;* and the certificate of a physician, fur- 
 nished as a part of the proof of loss under an insurance policy, 
 is not incompetent as an admission on the part of the assured.' 
 A physician sent by a prosecflting authority to make a report 
 upon the sanity of a prisoner is not disqualified from testify- 
 ing to a communication made by the latter to him in the 
 
 lEosseau v. Bleau, 131 N. Y. 177, ecooley v. Foltz.SS Mioh.47; Kling 
 
 43 N. Y. State Hep. 871. v. Kansas City, 27 Mo. App. 331 ; Cor- 
 
 2 Bahm v. State, 30 Tex. App. 310. bitt v. St. Louis, L M. & S. R. Co., 36 
 
 3 Glenn v. Leggett, 47 Fed. Rep. 473. id. 641. 
 
 * Duchess of Kingston's Case, 20 St. ^ Buffalo Loan, T. & S. D. Co. v. 
 
 Tr. 573. Knights Templar & M. M. A. Ass'd, 
 
 5 Harrington v. Winn, 60 Hun, 235, 136 N. Y. 450, 38 N. Y. State Rep. 347, 
 
 38 N. Y. State Rep. 83 ; Re McQueen's 44 Alb. L, J. 47. 
 Estate, 37 id. 603. 
 
EVIDENCE EXCLUDED FEOM PUBLIC POLICY. ^5 
 
 course of his examination as being prohibited from stating in- 
 formation acquired while attending a patient.' So a defend- 
 ant on trial for the murder of his patient cannot invoke the 
 prohibition in his favor as to the testimony of another physi- 
 cian who consulted with him in treating the patient.^ A phy- 
 sician may testify to knowledge obtained from personal ac- 
 quaintance with a patient before the commencement of his 
 professional relations with him and after they cease.' A phy- 
 sician is not prohibited from stating his opinion as to the men- 
 tal condition of a patient, based upon knowledge obtained at 
 times when he was not in attendance upon him in a profes- 
 sional capacity.* And a physician is not prohibited from tes- 
 tifying as to the number of times and the dates when he 
 attended a person, when he was first applied to, and- while h© 
 attended him, to show that the party was not in good health' 
 at a certain time.' So a physician is not prohibited from tes- 
 tifying upon an inquisition as to the lunacy of the patient.* 
 An attending physician may be asked to give an opinion as 
 to the condition of bis patient on a hypothetical state of facts 
 assumed therein, excluding all knowledge or information he 
 received as physician, notwithstanding a law providing that 
 he shall not be allowed to disclose any information which he 
 acquires in attending a patient in a professional capacity.'' 
 
 In a suit to set aside a will on the ground of undue infiuenee 
 and incapacity, in which the dispute is between the devisees 
 and heirs at law, either the devisees or heirs may call the at- 
 tending physician. Where communications to physicians are 
 sought to be excluded, the party objecting has the burden of 
 showing that the information sought to be given was acquired 
 by the witness in attending the patient in a professional ca- 
 pacity, and was necessary to enable him to act in that capacity.' 
 
 1 Benson v. Sliney, 50 N. Y. State Ins. Ass'n, 45 N. Y. State Eep. 661, 
 Rep. 391, 137 N. Y. 570 ; People v. 133 N. Y. 450. 
 
 Nino, 149 N. Y. 317. ^Ue Benson, 16 N. Y. Supp. Ill j 
 
 2 People V. Harris, 136 N'. Y. 488, Nesbit v. People, 19 Colo. 441. 
 
 49 N. Y. State Eep. 751. ' Meyer v. Standardi L. & A, Ins. 
 
 3 Re Lowenstein's Estate, 51 N. Y. Co., 8 App. Div. 74 ; Redman v. In- 
 State Rep. 423. dustral Benefit Ass'n, 150 N. Y. 167; 
 
 4 Fisher v. Fisher, 129 N. Y. 654, 42 Foley v. Royal Arcanum, 151 N. Y.. 
 N. Y. State Eep. 100 ; Ee Peck's Will, 196. 
 
 id. 898. 8 Henry v. N. Y., L. E. & W. R. Co., 
 
 5 Patten v. United Life & Accident 57 Hun, 76 ; People v. Schuyler, 106 
 
 N. Y. 398. 
 
96 KDLKS OF EVIDENCE. 
 
 He must also show that the relation of physician and patient 
 actually existed between the proposed witness and the objecting 
 party at the time the information was received.' A physician 
 is not disqualified from testifying to any matters which are 
 apparent to all persons skilled in medicine, whether called pro- 
 fessionally or not,^ but the knowledge excluded may be derived 
 from the statements of others than the patient, or his own ob- 
 servation of the patient's symptoms, where such information 
 is acquired during the course of the witness' professional visits.' 
 Thus, the prohibition extends to information derived from the 
 sense of hearing as well as the sense of sight ; and it is not a 
 prerequisite to its exclusion that the objector should give 
 formal proof, in the first instance, that the information was , 
 necessary to enable the physician to prescribe.^ The objector 
 may show by the physician himself whether his knowledge 
 was or was not necessary to the performance of his profes- 
 sional duties.^ The prohibition extends to a physician who has 
 been consulted for advice as to a patient's ability to continue in 
 business, although such advice was requested by the patient's 
 employer and paid for by him.* The prohibition also extends 
 to a physician selected by the prosecution and sent to a pris- 
 oner, where the prisoner accepts his services in a professional 
 character. The same rule extends to civil actions.' But the 
 rule is diiferent where the physician examines a party charged 
 with a crime, for the purposes of prosecution,' or where he is 
 a jail physician.' The prohibition has been applied to the affi- 
 davit of a physician offered upon an application for an appoint- 
 ment of a committee of a habitual drunkard or insane person." 
 When any part of the examination comes within the prohibi- 
 
 1 Henry v. N. Y., L. E. & W. R. Co., * Id. 
 
 57 Hun, 76 ; Edington v. ^tna Life » Estate of Darragh, 15 N. Y. Super. 
 
 Ins. Co., 77 N. Y. 564 ; Heath v. Broad- Ct 453 ; Grossman v. Supreme Lodge 
 
 way, etc. R Co., 57 N. Y. Super. Ct of K. & L. of H., 25 N. Y. State Rep. 
 
 496; Eenihan v. Dennin, 103 N. Y. 843; Brigham v. Gott, 20 id. 420; 
 
 573. Renihan v. Dennin, 108 N. Y. 573. 
 
 2 Henry v. N. Y., L. E. & W. R. Co., « Grattan v. Met Life Ins. Co., 80 
 57 Hun, 76. N. Y. 281. 
 
 'Matter of Darragh, 52 Hun, 591; 'People v. Murphy, 101 N. Y. 12& 
 
 Dillber v. Home Life Ins. Co., 69 N. Y « People v. Hoch, 150 N. Y. 291. 
 
 256: Edington v. Mutual L. Ins. Co., » People v. Schuyler, 106 N. Y. 39& 
 
 67N.Y. 185; Grattan v. Met Life Ins. lO Matter of Hoyt, 30 Abb. N. 0. 
 
 Co., 80 id. 281. (N. Y.) 162. 
 
EVIDENCE EXCLUDED FROM PUBLIC POLICY. 97 
 
 tion, no part is proper. This, however, does not prohibit the 
 physician from testifying that the person was his patient, or 
 that he attended him as a physician.^ The prohibition extends 
 to the certificate of the physician, in an action on a life insur- 
 ance policy, stating the cause of death to be delirium tremens. - 
 A physician cannot be compelled to deliver to a receiver of his 
 property his account book which contains privileged informa- 
 tion concerning his patients ; ' nor can such book be subjected 
 to inspection and discovery at the instance of the defendant, in 
 an action brought by the physician ; * and a waiver of such priv- 
 ilege cannot be made by the personal representatives of either 
 the physician or the patient.' A physician cannot testify that 
 his patient had a venereal disease while under his care;* nor 
 can he testify to conversations with his patient showing her 
 guilty of the charge of adultery, in an action for absolute di- 
 vorce.' So a physician who is called upon by plaintiff the day 
 after an accident is incompetent to testify, in an action by the 
 person for personal injuries, that he conversed with her about 
 the injuries, or that he made an examination of her,^ or that 
 he found no indications of injury ; ' nor can such physician be 
 examined as to the physical condition of his patient prior to 
 the accident complained of, when such fact is not issue in the 
 action.'" But it has been said that a physician may testify to 
 the declaration of his patient concerning means taken to warn 
 him of an approaching train, in an action for injuries from such 
 train, where the physician is called to the place where the in- 
 jury was received." A physician may testify whether or not 
 his patient was cured when he ceased attendance upon him,''' 
 but not that he was free from disease." It has been said that 
 
 iPatton V. United Life & A. Ass'n, 'Hun v. Hun, 1 N. Y. S. C. (T. & 
 
 133 N, y. 450. C.) 499. 
 
 SBuflfalo, L. T. & S. D. Co. v. speeney v. Long Island E. Co., 116 
 
 knights T. & M. Ass'n, 120 N. Y. 451. N. Y. 375, 36 N. Y. State Rep. 729. 
 
 8 Kelly V. Levy, 39 N. Y. State Rep. 9 Jones v. Brooklyn, B. & W. E. Ry. 
 
 659i ' Co., 31 N. Y. State Rep. 169. 
 
 * Mott V. Consumers' Ice Co., 3 Abb. lo Butler v. Manhattan R. Co., 60 
 
 N. C. (N. Y.) 143. N. Y. State Rep. 878, 30 Abb. N. C. 78. 
 
 6 Westover v. ^tna Life Ins. Co., 99 " Brown v. Rome, W. & O. R. Co., 45 
 
 N. Y. 56. Hun, 439. 
 
 , ^ « Sloan. V. N. Y. C. R. Co., 45 N. Y. 12 Edington v. Mtna. Life Ins. Co., 77 
 
 125. N. Y. 564. 
 
 "People V. Schuyler, 106 N. Y. 298. 
 
98 EULES OF EVIDENCE. 
 
 a physician who was present at a time that another physician 
 was treating a person may testify as to what took place, when 
 the witness was not the physician ot the person and was hot 
 present for the purpose of prescribing.^ The assignee of a 
 patient is entitled to take advantage of the prohibition by 
 which a physician is prohibited from testifying to a privileged 
 communication, and his right is not affected by the death of 
 the patient.^ 
 
 All objections must be interposed at the time the incompe- 
 tent testimonj' is offered,' and it must be made by the party 
 entitled to the benefit of the prohibition.* The party entitled 
 to object may expressly waive his privilege either orally or in 
 writing.' Where a person has been attended by two physi- 
 cians at the same time, if he calls one of them to testify as to 
 what' took place at that time, he waives his privilege as to the 
 other physician to testify to the same transaction.^ Where 
 the privilege is waived the physician must answer the ques- 
 tions, and he has no option in the matter.' The patient may 
 kieep the door of the consultation room closed, but he cannot 
 be permitted to open it so far as to give an imperfect and erro- 
 neous view of what took place, and then close the door wheii 
 the actual facts are about to be disclosed.' Thus, where a 
 party testifies to a consultation with a physician concerning the 
 injury in question, he waives his privilege;' but riot by calling 
 other phj^icians to testify to his condition before and after 
 the time when such knowledge was gained.'" 
 
 § 17. When physician prohibited from teStiifying. — tJnless 
 the prohibition of the statute is waived, the opinion of a physi- 
 cian, based upon information derived in the course Of bis prO- 
 
 istowfell V. American Co-op. Relief Co., 110 N. Y. 643; Matter of Pi-ee- 
 
 Ass'n, 23 N. Y. State Eep. 706. man, 46 Hun, 458 ; Holden v. Met 
 
 2Edington v. Mut. Life Ins. Co., 67 Life Ins. Co., 11 App. Div. 426: Foley 
 
 N. Y. 185. V. Royal Arcanum, 151 N. Y. 196. 
 
 3Hoyt V. Hoyt, 113 N. Y. 493. 'Summers v. State, 5 Te5c. App. ^65. 
 
 * People T. Murphy, 101 N. Y. 136 ; s Marx v. Manhattan R Co., 56 Hun, 
 
 Record v. Village of Saratoga, 46 575. 
 
 Hun, 448. 9 Jones v. Brooklyn, B. & W. E. Ey. 
 
 sMatterof Coleman, 111 N.Y. 320; Co., 21 N. Y. State Rep. 169; Van 
 
 Albert! v. New York, L. E. & W. R. Albn v. Gordon, 83 Hun, 379. ' 
 
 Co., 118 N. Y. 77. 10 Barker v. Cunard S. S. Co., 91 
 
 « Morris v. New York, O. & W. R Hun, 495, 70 N. Y. State Rep. 858. 
 Co., 148 N. Y. 88; Hope v. Troy L. R 
 
EVIDENCE EXCLUDED FEOM I'DBLIO POLICY. l 9& 
 
 fessional attendance upon a testator, of the latter's testamentary 
 capacity, is inadmissible in a proceeding for tlie probate of the 
 will of such testator, and after the death of the patient, unless 
 the prohibition is waived by all the parties interested.^ But 
 the prohibition against a physician testifying in regard to the 
 mental condition of a deceased person may be waived by any 
 party to the proceeding under which the physician is called. 
 A physician who is attached to any hospital, etc., may testify 
 to what he learned in such capacity. The fact that a plaintiff 
 calls one of his physicians as a witness in his own behalf does 
 hot make another competent in behalf of the defendant.^ A 
 physician will not be permitted to testify regarding answers 
 to inquiries propounded to an injured person whom he had 
 been called to visit professionally concerning matters in which 
 he had no interest- or concern professionally, or which were 
 made for the purpose of qualifyiug him as a witness, at least 
 where they in any way relate to the inquiry or to the patient's 
 former condition.' The fact that a person consulted a physi- 
 cian in respect to personal injuries is sufficient, in connection 
 with questions whether he conversed with her about her in- 
 juries, to bring the question within the rule as to privileged 
 communications.* A member of a firm of physicians is incom- 
 petent to testify as to confidential communications relating to 
 what he learned at a time when the person making such com- 
 munications was at the firm's place of business to consult with 
 the witness' partner.^ And a physician who is unable to sepa- 
 rate the knowledge which he has acquired while attending a 
 patient professionally from that which he has acquired in pay- 
 ing a friendly visit is not competent to testify as to such 
 knowledge.* 
 
 § 18. Waiver Iby patients. — A statute making a physician 
 incompetent to testify concerning any information acquired 
 
 iGurley v. Pect, 135 IdcJ. 440; Van ^Peeney v. Long Island R Co., 116 
 
 Orman v. Van Orman, 58 Hun, fi06, N. Y. 375, 36 N. Y. State Rep. 739. 
 
 34 N. Y. State Rep. 824; Loder v. s^tna Life Ins. Co. v. Deming, 123 
 
 Whelpley, 111 N. Y. 339, 19 N. Y. State Ind. 384 ; Dittrick v. Detroit, 98 Mich. 
 
 Rep. 631. 245. 
 
 2Mellor V. Missouri P. R. Co., 105 6 Van Allen v. Gordon, 83 Hun, 379 ; 
 
 Mo. 455. Re Darragh, 52 Hun, 591, 33 N. Y. 
 
 3 Pennsylvania Co. v. Marion, 123 State Rep. 553. 
 Ind. 415. 
 
100 KULES OF EVIDENCE. 
 
 • 
 
 by him from a patient in a professional character merely gives 
 the patient the privilege of suppressing such information, and 
 he may waive the privilege.^ Where a party himself testifies 
 as to a consultation with a physician and pretends to give the 
 circumstances of the privileged interview, the opposite party 
 is not precluded from assailing such evidence by the testimony 
 of such physician.^ It is not the duty of the party offering 
 the testimony of a physician to show that the relation of phy- 
 sician and patient did not exist; but it is the duty of the 
 party objecting to support his objections by proof of facts 
 necessary to bring the case within the definition on which it 
 is based. The exclusion is confined to information which the 
 phj'sician acquired in attending a patient in a professional ca- 
 pacity, and which was necessary to enable him to act in that 
 capacity. 
 
 So, if a party testify to a confidential interview with his 
 physician as to the nature and extent of an injury complained 
 of, his adversary may call the physician who attended the 
 party for the injury complained of, to contradict the story of 
 the patient.^ In such cases the plaintiff by his own act opens 
 the door for the admission of the testimony of the physician, 
 and in that manner effectually waives the privilege. The priv- 
 ilege is founded on public policy; and in all cases where it ap- 
 plies, the seal of the law must forever remain until it is removed 
 b}' the act or consent of the patient. And a patient calling 
 his physician to testify does not thereby waive his right to ob- 
 ject to other physicians who may have treated him testifying 
 upon the same subject.'* 
 
 The law forbids the disclosure of professional information, 
 and the policy of the law is to protect patients in the free 
 revelation of their maladies to the physician. But when the 
 patient himself testifies to the information and uncovers his 
 maladies and infirmities in court, he breaks the seal of secrecy 
 and absolves the physician from the obligation of silence, and 
 
 •Davenport v. Hannibal, 110 Mo. N. Y. State Rep. 614; Marx v. Man- 
 
 574 ; Dougherty v. Metropolitan Ins. hattan R Co., 31 id. 914, 56 Hun, 
 
 Co., 87 Hun, 15. 575. 
 
 2 Marx V. Manliattan R Co., 56 Hun, * Morris v. New York, O. & W. E. 
 
 575, 31 N. Y. State Rep. 914. Co., 148 N. Y. 88 ; Barker v. Cunard 
 
 8 Treanor v. Manhattan R Co., 41 S. S. Co., 91 Hun, 495. 
 
EVIDENCE EXCLUDED PEOM rUBLIO POLICY. 101 
 
 ■waives his privilege.' But it has been held that the privilege 
 is not waived by the patient's own testimony concerning her 
 ailments and disabilities, and which the physician's testimony 
 is needed to contradict. But it has also been held that one 
 suing for negligence, who testifies minutely to the effect of an 
 injury upon her health and comfort, thereby waives the priv- 
 ilege conferred by statute, and her attending physician may 
 be questioned to prove that she sufi^ered from no such injuries 
 as she represented.^ The consent of a child seven years of 
 age to a physician's testimony as to matters learned in his 
 professional capacity may be given by either of his parents, 
 and may be implied.' A party cannot be asked, as a wit- 
 ness, whether he is willing to waive the privilege. An attor- 
 ney may waive the privilege of bis client as to information 
 acquired by a physician in attending him, and may call the 
 physician as a witness.* After the death of the patient the 
 prohibition cannot be waived by any person.' 
 
 § 19. Clergymen. — In certain cases communications to 
 clergymen are privileged, on the ground of confidence and 
 the general good; that the guilty conscience may with safety 
 disburden itself by penitential confessions, and by spiritual ad- 
 vice, instruction and discipline seek pardon and relief. In 
 most of the states it is provided by statute that "no minister 
 of the gospel, or priest of any denomination whatsoever, shall 
 be allowed to disclose any confessions made to him in his pro- 
 fessional character in the course of discipline enjoined by the 
 rules or practice of such denomination."^ But when not so 
 made they may be properly .tojtified to by the priest.' The 
 prohibition is intended for the benefit of the penitent, and un- 
 less the privilege is waived upon the trial by such penitent the 
 priest cannot give the communications.' 
 
 1 Marx V. Machattan R. Co., 56 Hun, < Albert! v. New York, L. E. & W. 
 
 575, 31 N. Y. State Rep. 914 ; MoKin- R. Co.. 118 N. Y. 77, 27 N. Y. State 
 
 ney v. Railroad Co., 104 N. Y. 352, Rep. 865 ; Thompson v. Ish, 99 Mo. 
 
 4 N. Y. State Rep. 349; People v. 160, 
 
 Schuyler, 106 N. Y. 298, 8 N. Y. State sLoder v. Whelpley, 111 N. Y. 289, 
 
 Rep. 860 ; Hunt v. Blackburn, 138 19 N. Y. State Rep. 631. 
 
 U. S. 464; Treanor v. Manhattan R. « People v. Gates, 13 Wend. 311. 
 
 Co., 41 N. Y. State Rep. 614. 'Gillooley v. State, 58 Ind. 182; 
 
 ^ Treanor v. Manhattan R. Co., 41 People v. Gates, 13 Wend. 311. 
 
 N. Y. State Rep. 614 s Rg Griffin, 6 Cox, C. C. 319 ; Tot- 
 
 3 State V. Depoister (Nev.), 25 Pao. ten v. United States, 3 Otto (U. S.), 105. 
 Rep. 1000. 
 
102 EULES OF EVIDENCE. 
 
 IV. STATE SECRETS. 
 
 § 20. In general Secrets of state, or things the disclos- 
 ure of which would be prejudicial to the public interest, are 
 excluded from motives of public policy. Thus, in criminal 
 trials the names of persons employed in the discovery of the 
 crime are not permitted to be disclosed. So a witness who 
 has been employed to collect information for the use of the 
 government, or for the purpose of the police, will not be per- 
 mitted to disclose the name of his employer, or the nature of 
 the connection between them, or the name of any person who 
 was the channel of communication with the government or its, 
 officers.! 
 
 Eeports and other communications, whether oral or written, 
 made in the course of public duty between one minister or of- 
 ficer of state and another, are, within limits which are not very 
 clearly defined, privileged from disclosure whenever it would 
 be injurious to the public interests.^ It seems that the judge 
 is the authority to decide whether the disclosure would be in- 
 jurious or not, but on this point he will generally be guided 
 by the opinion expressed by the head of the department in 
 whose control the evidence is.' It is also in the discretion of 
 the judge by what evidence he will require to be satisfied of 
 the objection made by such head of the department. In some 
 cases the minister has attended personally in court to raise 
 the objection.* In others an affidavit. from his secretary or 
 other duly authorized subordinate has sufficed.* In another 
 case it was made orally by a clerk, and the objection was over- 
 ruled, but not apparently on that ground.* 
 
 § 31. State oilicials. — Official transactions between the heads 
 of the departments of state and their subordinates are gener- 
 ally treated as privileged communications. Thus, the corre- 
 spondence between an agent of the government and the secre- 
 tary of state,' or between a governor and an officer under him, 
 
 iTotten V. United States, 93 U. S. SBeatson v. Skene, 29 L. J. Ex. 430. 
 
 103 ; Burr's Trial, 186 ; Oliver v. Pate, ^Beatson v. Skene, 29 L. J. Ex. 430. 
 
 41 Ind. 133; Hannum v. Belchertown, 5H. M. S. " Bellerophon," 33 L. J. 
 
 19 Pick. 311. Adm.5. 
 
 2 Beatson v. Skene, 29 L. J. Ex. 430 ; 6 Dickson v. Wilton, 1 F. & F. 419, 
 
 McElveney v. Connelan, 17 Ir. C. L. 424. 
 
 Eep. 55 ; Blake v. Pilf ord, 1 M. & Rob. ' Marbury v. Madison, 1 Cranch, 
 
 198. 144. 
 
EVIDENCE EXCLUDED FEOM PUBLIC POLICr. 103 
 
 are confidential and privileged matters which v^ill not be per- 
 mitted to be disclosed except to the legislative branches of the 
 government. The president of the United States and the gov- 
 ernors of the several states are not bound to produce papers 
 or disclose information communicated to them, when in their 
 judgment the disclosure would, on public considerations, be 
 inexpedient. And it seems that in such cases secondary evi- 
 dence of the contents of state papers will not be received.^ 
 
 § 22. Grand ji^rors. — Proceedings of grand jurors are priv- 
 ileged communications. The rule includes not only the grand 
 jurors themselves, but their stenographers and the district at- 
 torney. They are not permitted to disclose who agreed to 
 find the bill of indictment or who did not agree ; nor to detail 
 the evidence on which the indictment was founded.^ So grand 
 jurors cannot, at least in general, be questioned as to what 
 took place among or before them while acting as such.' But 
 perjury, or indeed any other offense committed in their pres- 
 ence, and afterwards made the subject of an indictment or in- 
 formation, is a very different matter. The proceedings of petit 
 jurors and all communications to or by them acting as sucl^ 
 are privileged from investigation. It seems that any materia^ 
 matters in this connection are open to investigation when pub- 
 lic policy demands it* But the evidence of a grand juror is- 
 not admissible to impeach the finding or explain the vote of 
 the jury.^ 
 
 V. HUSBAND AND WIFE. 
 
 § 23. In general. — As a general rule confidential communi- 
 cations between husband and wife belong to the class of priv- 
 ileged communications, and are therefore protected. The law 
 provides that the confidential communications between hus- 
 band and wife shall be kept forever inviolable. Therefore, 
 after the parties are separated, whether it be by divorce or by 
 
 1 Washington V. Scribner, 109 Mass. 75; Burdick v. Hunt, 43 Ind. 381; 
 487. State v, Broughton, 7 Ired. (N. C.) L. 
 
 2 Com. V. Hill, 11 Cush. 137; State 96; State v. Wood, 53 N. H. 484; 
 V. Fassett, 16 Conn. 457 ; State v. Rocco v. State, 37 Miss. 357 ; State v, 
 Beebe, 17 Minn. 341. Benner, 64 Me. 267, 284. 
 
 3 Tayl. Ev., § 863 (4th ed.). « State v. Baker, SO Mo. 338; Pep- 
 < United State3 v. Charles, 2 Cranch, pie v. Hulbut, 4 Denio, 133 ; State v. 
 
 C. C. 76; People v. Young, 31 Cal. Beebe, 17 Minn. 241; State v. Ox- 
 563; Way v. Butterworth, 106 Mass. ford, 30 Tex. 438, 
 
104 KtlLES OF EVIDENCE. 
 
 the death of one of them, the other is still precluded from dis- 
 closing any confidential communication with the other. This 
 rule is founded on principles of public policy, which lie at the 
 basis of civil society. At common law neither husband nor 
 wife could testify to a communication of whatever nature, 
 confidential or otherwise, which passed between them. And 
 neither was allowed to testify to matters to the detriment of 
 the other in any case, civil or criminal.' Now the general rule 
 in civil cases is that no person shall he excluded or excused 
 from being a witness because he or she is the husband or wife 
 of a party, or of a person in whose behalf the action or special 
 proceeding is brought, prosecuted, opposed or defended, except 
 a husband or wife shall not be compelled, or without the con- 
 sent of the other, if living, allowed to disclose, a confidential 
 communication made by one to the other during the marriage. 
 Thus, the husband cannot, as against his wife, be permitted to 
 testify in regard to his discussions with her concerning her 
 alleged improper relations with another man, such discussions 
 being communications induced by the marital relation.^ But 
 voluntary testimony by a wife as to admissions made to her 
 husband is competent when given in a prosecution of the hus- 
 band for obtaining her money under false pretenses.' A com- 
 munication between a husband and wife in the presence of a 
 third party who is competent to testify is not privileged.* 
 
 All statutes placing the husband and wife in the same cate- 
 gory as other witnesses have not affected the prohibition regard- 
 ing confidential communications between them.' Thus, after 
 proof of marriage, neither husband nor wife is competent to 
 prove or disprove that sexual relations existed between them ; ' 
 but the rule is different where the issue is as to the date of 
 the birth of a child or as to marriage.'' Death does not remove 
 
 1 Southwiok V. Southwick, 49 N. Y. gomery v. Pickering, 116 Mass. 237 ; 
 510. Barker v. Kuhn, 38 Iowa, 395 ; Jenny 
 
 2 Warner v. Press Pub. Co., 133 v. Marble, 87 Mich. 319; Young v. 
 N. Y. 180, 43 N. Y. State Rep. 633. Oilman, 46 N. H. 186; State v. Mc- 
 
 3 People V. Lewis, 63 Hun, 622, 43 Cord, 8 Kan. 233. 
 
 N. Y. State Rep. 768. 6 Murray v. Milnor, 13 Ch. Div. 345 ; 
 
 4 Lyon V. Prouty, 154 Mass. 488. R. v. Luffe, 8 East, 193. 
 
 5 United States v. Jones, 33 Fed. ' Maynard v. Vinto, 59 Mich. 139 ; 
 Rep. 569 ; Lingo v. State, 29 Ga. 470 ; Murray v. Milnor, 13 Ch. Div. 845 : 
 Jones V. Simpson, 59 Mo. 180 ; Robin- Gray v. Gray, 39 N. J. Eq. .511 ; Wash- 
 son V. Chadwick, 33 Ohio St. 537; ington v. Bedford, 10 Lea (Tenn.), 
 Cross V. Rutledge, 81 111. 366 ; Mont- 246. 
 
EVIDENCE EXCLUDED FEOM PUBLIC POLICY. 105 
 
 the prohibition,^ nor does divorce have the effect of unsealing 
 the lips of a former husband or wife in relation to such com- 
 munications.^ Non-communication betvreen husband and wife 
 seems to be privileged.' It seems that a letter written by a 
 wife and delivered to her husband stating her reasons for leav- 
 ing, him is not a confidential communication,* and in an action 
 for divorce on the ground of cruel and inhuman treatment, 
 where a counter-claim for adultery is set up, either party may 
 testify in detail as to a conversation had with the other, where 
 it is competent on the issue.' Communications made at the very 
 time of marriage do not come within the prohibition," nor do 
 those made before marriage ; ' but it is said that a party can- 
 not testify to a previous marriage for the purpose of showing 
 that a subsequent marriage is void.' In an action for separa- 
 tion either party may testify to communications between them,' 
 and in all actions for divorce either party may testify to af- 
 firmative facts to disprove the charge of adultery.^" Either 
 party may testify in favor of the other in such an action,'^ but 
 neither party can testify to facts tending to show adultery of 
 the other,'^ nor the residence of the plaintiff at the time of the 
 commission of the adultery;'' but it seems that in an action 
 for divorce, where adultery is set up on both sides, either party 
 is competent upon the issues presented by the other, although 
 incompetent upon the charge made by the party testifying.'* 
 In an action for criminal conversation the plaintiff may give 
 testimony in his or her own behalf tending to prove the fact 
 in issue," and in such an action a divorced husband or wife is 
 
 1 Succession of Wade, 21 La, Ann. eVanTuyl v. Van Tuyl, 51 Barb. 
 343 ; Aveson v. Kinnans, 6 East, 192 ; 235 ; People v. Bai-tholf, 24 Hun, 272. 
 Barnes v. Kamack, 1 Barb. 393 ; Wood ' Otis v. Spencer, 103 111. 623. 
 
 V. Chetwood, 31 N. J. Eq. 311 ; Coffin 8 Finn v. Finn, 12 Hun, 889. 
 
 V. Jones, 18 Pick. (Mass.) 44 ; Robb's 9 De Meli v. De Meli, 130 N. Y. 485 ; 
 
 Appeal, 98 Pa. St. 501 ; Pillow v. Morrill v. Palmer, 68 Vfc. 1. 
 
 Thomas, 57 Tenn. 120 ; Stein v. Bow- w Steffens v. Steflfens, 33 N. Y. State 
 
 man, 13 Pet. 209 ; French v. Wade, Rep. 643 ; Stevens v. Stevens, 57 Hun, 
 
 85 Kan. 891. 490 ; Huntley v. Huntley, 73 Hun, 261. 
 
 2 Chamberlain v. People, 28 N. Y. " Bailey v. Bailey, 41 Hun, 424. 
 
 85 ; Barnes v. Kamack, 1 Barb. 303. 12 Colwell v. Colwell, 14 App. Div. 80. 
 
 3 Simon's Case, 6 C. & P. 333. " Dickinson v. Dickinson, 63 Hun, 
 ■•Fowler V. Fowler, 38 N. Y. State 516. 
 
 Rep. 746. » McCarthy v. McCarthy, 143 N. Y. 
 
 sWoodrick V. Woodrick, 141 N. Y. 235. 
 457; Seitz v. Seitz, 170 Pa. St 71. is Woods v. Gledhill, 56 Hun, 330; 
 
106 EULES OF EVIDENCE. 
 
 a competent witness to prove the offense;' and although a 
 wife may testify against a husband in such an action, she is 
 not a competent witness to testify in his favor.^ In all actio^is 
 for separation upon the ground of desertion, abandonment, 
 cruel and inhuman treatment, either husband or wife is com- 
 petent to testify against the other.' In an action for bigamy 
 either party may testify to the marriage and cohabitation/ 
 so, upon the trial of either a husband or wife for murder, let- 
 ters from either to the other are competent.' The wife is a 
 competent witness against her husband, who, is charged witl^ 
 procuring a miscarriage upon her,^ or for any attempted crime 
 against her.'' 
 
 § 24. Marriage — Proof of, necessary. — The rule of pro- 
 tection to confidential or other communications between hus- 
 band and wife is extended only to lawful marriages. Thus, 
 upon a trial for polygamy, the first marriage being proved and 
 not controverted, the woman with whom the second marriage 
 was had is a competent witness. But it is different if the first 
 marriage is controverted.^ But cohabitation and acknowledg- 
 ment as husband and wife are conclusive against the parties, 
 except where the fact or the incidents of marriage, such as 
 legitimacy and inheritance, are directly in controversy. 
 
 § 25. Illustrations. — Letters written by a husband to his 
 wife during their marriage, having reference to business car- 
 ried on by them, and showing that such business was unprof- 
 itable, are privileged, and cannot be given by a wife in an 
 action by her against her husband's heirs and devisees.' But, 
 usually, business transactions between them are not confiden- 
 tial communications ; " nor are communications made in the 
 
 Smith V. O'Brien, 24 N. Y. State R^p. 5 People v. Petmacky, 99 N. Y. 415, 
 
 708. 2 N. Y. Or. Rep. 458. 
 
 1 Wottrich V. Freeman, 71 N. Y. ^ state v. Dyer, 59 Me. 303. 
 
 601; Dickerman v. Graves, 6 Gush. 'Tucker v. State, 71. Ala. 342; Peo- 
 
 <Maas.) 309. pie v. Northrupp, 50 Barb. 149 ; Turner 
 
 2Fratini v. Caslini, 62 Vt 273; Cor- v. State, 60 Miss. 351 ; United States 
 
 nelius v. Hambay, 150 Pa. St. 359. v. Smallwood, 6 Cranch, 35 ; Whipp 
 
 3 State V. Davidson, 77 N. C. 522; v. State, 34 Ohio St. 87; Jordan v. 
 Whipp V. State, U Ohio St. 87 ; Casey State, 142 Ind. 442. 
 
 V. Casey, 4 Daly, 270 ; People v. Mer- « 2 Stark. Kv. 400. 
 
 cein, 8 Paige, 47. ' Mitchell v. Mitchell, 80 Te?. 101. 
 
 4 People V. Wentvrorth, 4 Cr. Rep. i" SchafEner v. Reuter, 37 Barb. 44. 
 210 
 
EVIDENCE EXCLUDED FEOM PUBLIC POLICY. 107 
 
 presence or hearing of third persons.^ A statement by a man 
 to his wife that he had improper relations with another woman, 
 which he afterwards admitted to be false and to have been 
 made with the hope of inducing a similar confession from her 
 in return, is not privileged in an action by her for a separation 
 on the ground of conduct making it unsafe and improper for 
 her to cohabit with him.^ The communications of husband 
 and wife, not made in the presence of third persons, though 
 they consist of opprobrious epithets, which would furnish 
 ground for divorce as being intolerable indignities, does not 
 render the husband and wife competent to testify concerning 
 them;' and a husband cannot, after the death of his wife, tes- 
 tify to conversations of a confidential character had with his 
 wife, even when he is contesting the probate of her will.* Nor 
 can a husband on trial for a crime, who has offered himself as 
 a witness, bp examined by the state as to any communications 
 between his wife and himself.' 
 
 § 36. Personal privileges. — Not all communications made 
 between husband and wife when alone are confidential. Con- 
 fidential communications are such communications as are ex- 
 pressly made confidential, or such as are of a confidential 
 nature, or induced by the marital relation.^ And where a 
 husband or wife to whom a confidential communication is ad- 
 dressed makes it public by giving it to another, it may be put 
 in evidence if otherwise admissible. If the privilege has once 
 been waived by the parties it cannot be again invoked. It is 
 personal, so that if one ever hears such a communication he 
 may testify to it, if it be otherwise adihissible in evidence, as 
 the confidential character of the communication has departed.' 
 Personal privilege as to a confidential communication between 
 husband and wife is not only available to the one called as a 
 witness, but is available as well to the other spouse against 
 whom it is offered.^ In many if not all the states, the common- 
 
 ' state V. Center, 35 Vt. 385; Troy sParkhurst v. Berdell, 110 N. Y. 
 
 Fertilizer Co. v. Logan, 90 Ala, 325. 386, 18 N. Y. State Rep. 193. 
 
 2 Fowler v. Fowler, 33 N. Y. State '• State v. Hoyt, 47 Conn. 518 ; Peo- 
 Rep. 746. pie v. Hayes, 140 N. Y. 484, 56 N. Y. 
 
 3 Ayers v. Ayers, 28 Mo. App. 97. State Rep. 463; Com. v. Griffin, 110 
 
 4 Maynard v. Vinton, 59 Mich. 139, Mass. 181 ; State v. Center, 35 Vt. 386. 
 60 Am. Dea 276. s People v. Wood, 126 N. Y. 249, 36 
 
 >> People V. MuUings, 83 Cal. 138. N. Y. State Rep. 952. 
 
108 EULES OF EVIDENCE. 
 
 law rule that husband and wife cannot be witnesses for or 
 against each other has been modified by statute. These stat- 
 utes make a husband or wife of a person indicted or accused 
 of a crime a competent .witness, but neither husband nor wife 
 can be compelled to testify in such cases against the other, nor 
 can they disclose a confidential communication made by one 
 to the other during their marriage. These statutes do not leave 
 the matter entirely to the discretion of the one who is a wit- 
 ness, but the other party to the communication, or if he is a 
 party to the suit, may object to the party's testifying, and, 
 upon such objection being made, the witness not only cannot 
 be compelled, bat he or she has no right, to testify or make 
 the disclosure.^ But the party seeking to suppress evidence as 
 a privileged communication has the burden to show that such 
 is its character.^ The privilege of objecting to the disclosure 
 of privileged or confidential communications is not available 
 to a stranger.' 
 
 VI. EES ADJUDIOATA, ETC. 
 
 § 27. In general. — Every judgment is conclusive proof, as 
 against parties and privies, of facts directly in issue in the 
 case, actually decided by the court, and appearing from the 
 judgment itself to be the ground on which it was based, un- 
 less evidence was admitted in the action in which the judgment 
 was delivered which is excluded in the action in which that 
 judgment is intended t6 be proved.* Thus, all judgments 
 whatsoever are conclusive proof as against all persons of the 
 existence of that state of things which they actually effect, 
 when the existence of the state of things so effected is a fact 
 in issue or is deemed to be relevant to the issue.' The con- 
 struction of a contract in an action between the parties, or an 
 adjudication on the construction of a statute, is conclusive on 
 
 1 People V. Wood, 126 N. Y. 249, 36 41, 43, 44, 47; New Orleans v. Cit:- 
 N. Y. State Rep. 953 ; Emmons v. Bar- zens' Bank, 167 U. S. 371 ; Cromwell 
 ton, 109 Cal. 663. v. County of Sao, 94 U. S. 851; Blair 
 
 2 Henry v. New York, L, E. & "W. v. Bartlett, 75 N. Y. 150; Rose. N, P. 
 R Co., 57 Hun, 76, 33 N. Y. State Rep. 128. 
 
 16 ; Heath v. Broadway & S. A. R. » Green v. New River Co., 4 T. R 
 
 Co., 29 id. 367, 57 Super. Ct. 496; 590; Key v. Dent, 14 Md. 86 ; Leggett 
 
 Sharon v. Sharon, 79 Cal. 633. v. TuUervey, 14 Ex. 301 ; Farwell v. 
 
 3 McNutty's Appeal, 135 Pa. St. 210. Great W. Tel. Co., 161 111. 520, 620. 
 * Stephen, Dig. Law of Ev., arts. 
 
EVIDENCE EXCLUDED EEOM PUBLIC POLICY. 109 
 
 them in another action.' And although, where the parties 
 and the cause of action are the same, the presumption is that 
 the questions presented for decision were the same,^ the party- 
 producing the former adjudication.must show that the subject 
 was directly in issue in the former suit.' 
 
 § 28. Between strangers. — Statements contained in judg- 
 ments as to the facts upon which the judgment is based are 
 deemed to be irrelevant as between strangers, or as between a 
 party or privy and a stranger, except in the case of judgments 
 of courts of admiralty condemning a ship or prize, and other 
 judgments in rem by courts exercising a rightful jurisdiction 
 over the subject-matter. In the case of judgments in rem, i. e., 
 adjudications upon the status of some particular subject-matter, 
 the authority of the tribunal rests on the following grounds, 
 viz. : First, that the subject-matter should be within the law- 
 ful control of the state under the authority of which the tri- 
 bunal acts; second, that the sovereign authority of that state 
 should have conferred on the tribunal jurisdiction to decide as 
 to the disposition of the thing; and third, that that tribunal 
 should act within its jurisdiction.* In certain instances, also, 
 judgments as to the status or condition of a party are receiv- 
 able in evidence against third persons, although they are not 
 conclusive. Thus, in an action against an executor sued on a 
 bond of his testator, a commission finding the testator lunatic 
 at the time of the execution of the bond is prima faoie evidence 
 against the plaintiff, though he was no party to it.' And by 
 analogy to the general rule of res inter alios acta, judgments 
 and judicial proceedings inter alios are receivable on questions 
 of a public nature, and in other cases where the ordinary rules 
 of evidence are departed from. In such cases the judgment is 
 conclusive proof as against all persons of the facts on which it 
 proceeded, when such fact is plainly stated upon the face of the 
 sentence." " Judgments are not deemed to be relevant as ren- 
 dering probable facts which may be inferred from their exist- 
 
 1 Wood V. Mayor, etc., 73 N. Y. 556 ; * Castrique v. Imrie, L. R. 4 App. 
 
 Tioga R. R. Co. v. Blossburg & O. Cas. 414, 429 ; Ward v. Boyce, 153 
 
 R R. Co., 20 Wall. 137. N. Y. 191. 
 
 2Gouldv. Evansville&CR. R.Co., spaulder v. Silk, 3 Campb. 126; 
 
 91 U. S. 526 ; Packet Co. v. Sickles, 5 Dane v. Lady Kirkwall, 3 C. & P. 683. 
 
 Wall. 593. « Booth v. Powers, 56 N. Y. 32. 
 
 ' Lawrence v. Hunt, 10 Wend. 81. 
 
110 ETTLES OF EVIDENCE. 
 
 ence, but which they neither state nor decide as between 
 strangers; as between parties and privies in suits where the 
 issue is dififerent, even though they relate to the same occur- 
 rence or subject-matter; or in favor of strangers against par- 
 ties or privies. But a judgment is deemed to be relevant as 
 between strangers if it is an admission, or if it relates to a mat- 
 ter of public or general interest, so as to be a stateinent." ' 
 " Foreign judgments, so far as such judgments can be enforced 
 in this country, stand upon the same footing as doniestic judg- 
 ments." The terra " parties " includes all who have a direct 
 interest in the subject-matter of the suit, or have a right to 
 make a defense or control the proceedings.^ Thus, the record 
 in a probate court finding the amount due from a guardian to 
 his ward is admissible against the sureties on the guardian's 
 bond.* So a judgment roll in an action against a city for per- 
 sonal injuries caused by an obstruction placed in a street 'by 
 contractors for the construction of a sewer is conclusive evi- 
 dence in an action by the city on an indemnity bond from all 
 suits against the city for damages for personal injuries, of the 
 amount of the damages, the existence of the obstruction, and 
 that the injured party was free from contributory negligence^ 
 where the contractors and the sureties on the bond had notice 
 of the pendency of an action for personal injuries and oppor- 
 tunity to defend it.* 
 
 If a judgment be confessed upon a note professing to be for 
 value received, and the creditors of the party confessing at- 
 tempt to impeach the judgment by showing that the note was 
 not given for value, but was fictitious and fraudulent, it is com- 
 petent for those who have taken the judgment to show what 
 was in fact the consideration for which the note was giveh.^ 
 The want of jurisdiction will render void the judgment of any 
 court, whether it be of superior or inferior, of general, limited 
 
 . 1 Lazarus v. Phelps, 156 U. S. 303 ; p. 152 ; Hates v. Stanton, 1 Duer, 79 ; 
 
 Wallace v. Jones, 93 Ga. 419 ; Bond 1 Big. on Estop., 47 ; Thompson t. 
 
 V. Marbstruni, 103 Mich. 11 ; Railroad Roberts, 24 How. (U. S.) 233. 
 
 Eq. Co. V. Blair, 145 N. Y. 607; Wick- 3 Ryan v. People, 165 111. 143; Mc- 
 
 ett V. Cicero, 152 111. 575 ; Oceanic S. Murtrie v. Black, 180 Pa. St. 64. 
 
 N. Co. V. Campania T. E., 144 N. Y. * New York v. Brady, 151 N. Y. 611. 
 
 66; Crane v. Pacific Bank, 106 Cal. » Harris v. Alcock, 10 Gill & J. (Md.) 
 
 64; Compton V. Jesup, 167 U. S. 1. 326; Embden v. Lisherness, 89 Me. 
 
 2Carleton v. Lombard, A. & Co., 578. 
 149 N. Y. 137; Ruck v. Ruck (1896), 
 
EVIDENCE EXCLUDED PEOM PDBLIC POLIOr. Ill 
 
 or local jurisdiction, or of record or not; and the bare recital 
 of jurisdictional facts in the record of a judgment of any court 
 is not conclusive, but only prima facie evidence of the truth 
 of the fact recited ; and the party against whom a judgment is 
 offered is not, by the bare fact of such recitals, estopped from 
 showing by afiRrmative proof that they were untrue and thus 
 render the judgment void for want of jurisdiction.^ Some 
 cases, however, hold that where the record is sufficient to show 
 jurisdiction it niay not be disputed.^ Upon the ground of 
 fraud in procuring it, the decree oi- judgment of a state court 
 can be adjudged void either in the courts of the United States 
 or those of another state.' Strangers may impeach it collater- 
 ally by disproving the facts upon which it was predicated.* 
 Collateral as well as direct parties may impeach a void judg- 
 ment, as when confessed through fraud and collusion without 
 indebtedness.' A party to a judgment at law cannot impeach 
 it collaterally on the ground that- testimony was false on which 
 it was rendered.* 
 
 A party cannot impeach a judgment on any ground which 
 might have been relied upon as a defense to the suit.' Where 
 a collusive judgment comes into collision with the interests of 
 preditoi-s, thej'' may avoid the effect of it by showing it to be 
 a nullity as to themselves. But in order to avoid a judgment 
 in a collateral proceeding for fraud, the fraud must be clearly 
 established.^ Where the jurisdiction of a court of limited and 
 special authority appears upon the face of its proceedings, its 
 action cannot be collaterally attacked for mere error.' Thus, 
 where it appears from the records of an inferior court that there 
 
 1 Bolton V. Jacks, 6 Robt. (N. Y.) 166, < Nason v. Blaisdell, 13 Vt 165. 
 198 ; Ormsby v. Jacques, 13 Hun, 443 ; 5 Martin v. Judd, 60 111. 78. 
 
 Bryar v. Bryar, 78 Fed. Eep. 657. « Dilling v. Murray, 6 Ind. 334 ; Ver- 
 
 2 Wetherill v. Stillman, 65 Pa. St. planck v. Van Buren, 11 Hun. 338 ;. 
 105; Lapham v. Briggs, 27 Vt. 26; New Orleans v. Citizens' Bank, 167 
 Lincoln v. Tower, 2 McLean, 473; U. S. 871. 
 
 Wescott V. Brown, 13 Ind. 88; Lake ' Stil well v. Carpenter, 59 N.Y. 414; 
 
 County V. Piatt, 79 Fed. Rep. 567. Smith v. Nelson, 63 N. Y. 286 ; Fuller 
 
 »Amory v. Amory, 3 Biss. 266; v. Smith, 5 Jones (N. G), Eq. 193; 
 
 Hampton v. McConnel, 3 Wheat 334 ; Chadwiok v. Gulf S. L. & J. Co., 49 
 
 Engel V. Soheuerman, 40 Ga. 306, 3 La. Ann. 757. 
 
 Am. Eep. 573; Sanford v. Sanford, ^ Huiyerson v. Hutchinson, 39 Iowa, 
 
 28 Conn. 6; Lawrence v. Stearns, 79 316. 
 
 Fed. Eep. 878. 9 Shaver v. Shell, 24 Ark. 132. 
 
112 EtTLES or EVIDENCE, 
 
 was evidence before it tending to show the existence of the 
 facts necessary to give it jurisdiction, and that such evidence 
 Avas adjudged suflBcient, such judgment cannot be impeached 
 or contradicted in an action in another court.^ Where the 
 court has deliberately examined and settled a legal question in 
 one suit, it will not afterward listen to an argument of the 
 same question, although it arises in another suit between dif- 
 ferent parties.^ One who is vouched or notified to come in and 
 defend a title is bound by the judgment equally, whether he 
 appeared or not.' A judgment rendered in a cause to which 
 the heirs only were parties is not binding upon the adminis- 
 trator of the estate.^ So an action and judgment between two 
 persons cannot bind or affect a third person who could not be 
 admitted to make a defense, to examine witnesses, or to appeal 
 from the judgment.* A decree for the sale of the estate of a 
 decedent or lunatic for the paj'^ment of debts is a decree in 
 rem, and the creditors are bpund by it, though not parties to 
 the proceeding.* It is said that when suit is brought against 
 a surety for a debt from which the principal has been dis- 
 charged by a court of competent jurisdiction, the surety is en- 
 titled, upon proof of the fact of a valid discharge, to rely upon 
 the judgment of discharge as an estoppel, and that this is to be 
 regarded as an exception to the general rule of res inter alios 
 actaJ "Where reputation is admissible in evidence, a verdict 
 between strangers may be also, as on the question of pedigree.' 
 And the record in a chancery cause is evidence to prove a link 
 in a chain of title though the opposite party was not a party 
 in that cause.' A judgment is always evidence of the fact that 
 such a judgment was rendered, and of the legal consequences 
 resulting therefrom, whether the person against whom it is 
 
 1 Sheldon v. Wright, 5 N. Y. 497.. 6 Latham v. Wiswall, 2 Ired. (N. C.) 
 
 2 Teal V. Woodworth, 3 Paige, 470. Eq. 294; MoClasky y. Barr, 79 Fed, 
 
 3 Andrews v. Davison, 17 N. H. Eep. 408. 
 
 413; Littleton v. Richardson, 34 id. 'Gill v. Morris, 11 Heisk. (Tenn.) 
 
 179 ; Veazie v. Penobscot R. R. Co., 49 614 ; Peet v. Hatcher, 112 Ala. 514. 
 
 Me. 119. 8 Pile v. McBratney, 15 111. 314 ; Pat- 
 
 4 Dorr V. Stockdale, 19 Iowa, 269 ; terson v. Gaines, 6 How. (U. S.) 550 ; 
 Stevens v. Melcher, 152 N. Y. 551 ; Gathe v. Boussard, 49 La. Ann. 312. 
 Kake v. Balken, 15 App. Div. 415. ^ Barney v. Patterson, 6 Harr, & J. 
 
 sYorks V. Steels, 50 Barb. 397; (Md.) 182; Baylor v. Dejarnette, 13 
 Ward V. Boyoe, 152 N. Y. 191; Tin- Gratt. (Va.) 152; Fenwick Hall Co. v. 
 dal V. Wesley, 167 U. S. 204. Old Saybrook, 69 Conn. 32. 
 
EVIDENCE EXCLUDED FROM PUBLIC POLICY. 113 
 
 offered was a party to the action in which it was rendered or 
 not.i 
 
 In an action against a prior indorser of a note by a subse- 
 quent indorser, who had paid a judgment obtained upon the 
 note by the holder against all the indorsers, the record of that 
 judgment will be conclusive.^ But an unsatisfied judgment 
 against the maker of a note is no bar to an action against'the 
 indorser.^ A judgment against an agent does not bar a judg- 
 ment against the principal for the uncollected balance.* But 
 a judgment, though not satisfied, obtained against a deputy 
 sheriff in an action of trover for the wrongful attachment and 
 conversion of certain goods, was held to be a bar to a subse- 
 quent action of trespass for the same goods against the plaint- 
 iff in the writ of attachment by whose direction the officer 
 attached the goods.^ It is, however, held that where, in an 
 action against the sheriff for the negligence of his deputy, 
 judgment is recovered against him by default, this judgment 
 is not conclusive against the deputy in another action brought 
 upon his bond for the faithful discharge of his duty, but he 
 may make any defense which the sheriff could have made in 
 the first suit.^ Where parties join in a bond of indemnity as 
 principal and sureties, they are in privity of contract with each 
 other, and are to ba regarded and treated, quoad the contract, 
 and the rights and liabilities connected with and growing out 
 of it, as one person.' 
 
 A recovery against the principal, for his defalcations as the 
 officer of an incorporated company, is not evidence against the 
 surety on his official bond, either of the fact of embezzlement 
 or of the amount embezzled.^ A judgment against one joint 
 trespasser is no bar to a suit against another for the same 
 trespass. Nothing short of full satisfaction, or that which the 
 law must consider as such, can make such judgment a bar.^ 
 
 1 Ansley v. Carlos, 9 Ala. 973 ; Maple 7 Fay v. Ames, 44 Barb. 327. 
 
 V. Beach, 43 Ind. 51 ; Maloy v. DudeD, 8 Fireman's Ins. Co. v. McMillan, 29 
 77 Fed. Rep. 935. Ala. 147 ; Thomas v. Hubbell, 15 N. Y. 
 
 2 Lloyd V. Barr, 11 Pa. St. 41 ; Gar- 405. 
 
 rett V. Ashcraft, 19 Ky. L. Rep. 38. 9 Elliot v. Porter, 5 Dana (Ky.), 299 ; 
 
 3 Porter v. Ingraham, 10 Mass. 88. Sheldon v. Kibbe, B Conn. 214 : Elliot 
 * Glenn v. Bavis, 2 Grant's Cas. v. Hay don, 104 Mass. 180; Murray v. 
 
 <Pa.) 153. Lovejoy, 3 Clif. (C. C.) 191 ; Knott v. 
 
 5 Hunt V. Bates, 7 R. I. 217. Cunningham, 3 Sneed (Tenn.), 304. 
 
 « Wilkins v. Dingley, 39 Me. 73. 
 
114 EULES OF EVIDENCE. 
 
 "When a contract is several as well as joint, a judgment against 
 one is no bar to a subsequent action against all, until satisfied.' 
 Judgment against a party in one capacity is not res judicata 
 against him acting in another.^ Distributees are concluded by 
 a decree between the administrator and an adverse claimant 
 as to the title of chattels held by the intestate.' But a judg- 
 ment against an administrator is conclusive only as to the per- 
 sonalty.* A judgment for or against an heir or devisee has no 
 effect upon an administrator or executor.^ A judgment against 
 the ancestor in his life-time only binds the heir when it can- 
 not be paid out of the personal estate of the ancestor.^ A judg- 
 ment recovered by an executor is no bar to an action for the 
 same cause by an administrator de bonis non; ' and a judgment 
 against the administrator de bonis non of a debtor is no evi- 
 dence of the debt as against the representatives of the admin- 
 istrator-in-chief.^ A judgment on the merits against a master, 
 in an action of trespass, fox' the act of his servant, is a bar to 
 an action against the servant for the same act.' He who in- 
 termeddles with property in litigation does it at his peril, and 
 is as conclusively bound by the results of the litigation, what- 
 ever they may be, as if he had been a party to it from the 
 outset.^" The assignee of a litigated right cannot claim to be 
 a stranger to the suit pending." One cannot be a privy in es- 
 tate to a judgment or decree, unless he derives his title to the 
 property in question subsequent to and from some party who 
 is bound by such judgment or decree.^^ By privies are meant 
 persons who are represented by the parties, and claim under 
 them or in privity with them, who have mutual or successive 
 relationship to the same right or thing. i' A judgment is con- 
 clusive as an estoppel only between the same parties, and 
 
 iGilman v. Foote, 22 Iowa, 560; n Inloe's Lessee v. Harvey, 11 Md. 
 
 King V. Hoare, 13 Mees. & W. 504. 519: Snowman v. Harford, 63 Me. 
 
 2 Lander v. Arno, 65 Me. 26. 434 ; Salisbury v. Morss, 7 Lans. (N. Y.) 
 
 3 Head v. Perry, 1 T. B. Mon, (Ky.) 359, 55 N. Y. 675 ; Tilton v. Cofield, 93 
 253. U. S. 163. 
 
 i Walthaur v. Gossar, 33 Pa. St. 259. " Bisland v. Griffin, 9 La Ann. 150; 
 
 6 Dorr V. Stockdale, 19 Iowa, 269. Adams v. Preston, 23 How. (U.S.) 
 
 * Rogers v. Denham, 3 Giatt. (Va,) 473. 
 
 200. 12 Hunt V. Haven, 53 N. H. 162. 
 
 'Groutv. Chamberlain, 4 Mass. 613. "Ooddard v. Benson, 15 Abb. Pr. 
 
 8 Thomas v. Sterns, 33 Ala. 137. (N. Y.) 191. 
 
 9 Emery v. Fowler, 39 Me. 336. 
 
EVIDENCE EXCLUDED PEOM PUBLIC POLIOr. 115 
 
 where the parties are mutually bound.^ Parol evidence is ad- 
 missible to show that the demand in the second suit was not 
 recovered for in the first.^ 
 
 "Where the defendant sets up a counter-claim exceeding the 
 plaintiff's demand, and succeeds in his defense, but does not 
 pray for or obtain judgment for the excess of his counter-claim 
 over the plaintiff's claim, he cannot sue for such excess in a 
 separate action.^ A judgment may not only be evidence, but 
 conclusive evidence, in relation to some point, and still be no 
 bar, technically speaking, to a second action;* for a judgment 
 is not technically conclusive of any matter if the matter is not 
 such that it had of necessity to be determined before the judg- 
 ment could have been given.' But any matter regularly de- 
 termined, in whatever form, by a competent tribunal, is not 
 open to inquiry in any other proceeding between the same 
 parties.' In a second action for a continued trespass, the judg- 
 ment is evidence, but not conclusive evidence, of title.' A 
 former judgment in a civil action is not conclusive in a penal 
 action between the same parties, though the same question is 
 litigated.^ A judgment for one instalment of the purchase- 
 money prevents the defendant from setting up the same de- 
 fense to a suit for another instalment.' A judgment in favor 
 of the claimant, on a trial of the right of property in goods 
 seized on execution, is no bar to an action for the tort com- 
 mitted by taking the property under such execution."* A 
 judgment for the defendant, in an action of tort for a false 
 representation of soundness on an exchange of horses, is a bar 
 to a subsequent action on contract on the defendant's promise, 
 at the time of the exchange, that his horse was sound.^^ So a 
 judgment in trover, not appealed from, will bar an action in 
 assumpsit for the same goods.^^ A question of law once de- 
 cided in a cause is the law of the case in all subsequent pro- 
 
 1 Myers v. County of Johnson, 14 6 Hyatt v. Bates, 35 Barb. 308, 40 
 Iowa, 47. N. Y. 164. 
 
 2 Marcellus v. Countryman, 65 Barb. ' Mvin v. Stevens, 5 Harr. (Del.) 273. 
 (N. Y.) 301. 8 Riker v. Hooper, 35 Vt. 457. 
 
 3 Inslee v. Hampton, 11 Hun, 156. ' French v. Howard, 14 Ind. 45S. 
 
 4 Spencer v. Dearth, 43 Vt. 98. " Lenoir v. "Wilson, 36 Ala. 600. 
 
 5 Niday v. Harvey, 9 Gratt. (Va.) " Norton v. Doherty, 3 Gray, 372. 
 454; Hunter v. Davis, 10 Ga. 413. i^ Union R. E. Co. v. Traube, 59 Mo. 
 
 355. 
 
116 EDLES OF EVIDENCE. 
 
 ceeclings therein.^ The fact that an appeal has been taken to 
 another court does not affect the conclusive nature of the judg- 
 ment as a bar while it remains unreversed.^ If the merits of 
 a case have been once passed upon, on demurrer, the judgment 
 is binding upon the parties in a subsequent suit, and may be 
 pleaded in bar.' A decree dismissing a bill upon the merits 
 is, until reversed, a bar to a new bill between the same parties 
 for the same cause of action.* A judgment entered by consent 
 of the parties has the same force and effect as any other.* Thus, 
 a judgment, as well by confession as otherwise, is conclusive, 
 while it is in force, as to everything that might have been 
 pleaded or given in evidence in defense.* 
 
 § 29. Not pleaded. — If a judgment is not pleaded by way of 
 ■estoppel it is, as between the parties and privies, deemed to be 
 a relevant fact whenever any matter which was or might have 
 been decided in the action in which it was given is in issue, or 
 IS deemed to be relevant to the issue in any subsequent pro- 
 ceeding. Such a judgment is conclusive proof of the facts 
 which it decides, or might have decided, if the party who gives 
 ■evidence of it had no opportunity of pleading it as an estoppel.' 
 
 § 30. Defenses. — The party against whom a judgment is 
 offered as evidence, not as a counter-claim, may prove that the 
 court which gave it had no jurisdiction of the subject-matter,^ 
 or of the parties,^ unless the judgment itself recite matters 
 which establish or confer jurisdiction.'" When such recitals 
 
 1 Table Mountain Co. v Stranahan, s Knowlcs v. Gas Light Co., 19 Wall. 
 21 Cal. 548; Oakley v. Aspinwall, 13 58; Child v. Powder Works, 45 N. H. 
 nST. Y. 500 ; Furniss v. Ferguson, 34 id. 547 ; Pelton v. Platner, 13 Ohio St 
 485. 209 ; Gilaiau v. Oilman, 126 Mass. 26 ; 
 
 2 Harris V. Hammond, 18 How. Pr. Lapham \. Briggs, 27 Vt. 26; Mc- 
 (N. Y.) 123; Tyler v. Willis, 13 Abb. Keever v. Ball, 71 Ind. 398; Tyler v. 
 Pr. (N. Y.) 369, 85 Barb. 213. Defrees, 11 Wall. 331; Shroyer v. 
 
 3 Robinson v. Howard, 5 Colo. 428; Richmond, 16 Ohio St. 455; Noble v. 
 Bouchaud v. Dias, 3 Denio, 238. Oil Co., 79 Pa. St. 354. 
 
 4 Durant v. Essex Co., 7 Wall. 107 ; 9 State v. Fleak, 54 Iowa, 429 ; East- 
 Biack V. Black, 37 Ga. 30 ; Holmes v. eriy v. Goodwin, 35 Conn. 273 ; Nap- 
 IRemsen, 7 Johns. Ch. 286. ton v, Leaton, 71 Mo. 358; Hill v. 
 
 4 Richmond, etc. R Co. v. Shippen, Mendenhall, 21 Wall. 453; Penobscot 
 2 Patt. & H. (Va.) 327 ; French v. Shot- R R. Co. v. Weeks, 52 Me. 456 ; Need- 
 well, 5 Johns. Ch. 555. ham v. Thayer, 147 Mass. 536 ; Gay v. 
 
 6 Moore v. Barclay, 23 Ala. 739; Smith, 38 N. H. 171; Parish v. Parish, 
 
 Miller v. Earle, 24 N. Y. 110. 82 Ga. 653 ; Price v. Ward, 25 N. J. L, 
 
 'Krekler v. Ritter, 63 N. Y. 372; 285; Hanson v. Wolcott, 19 Kan. 207. 
 
 Rose. JSr. P. 205. lOWyatt v. Rambo, 39 Ala. 510; 
 
EVIDENCE EXCLUDED FEOM PUBLIC POLICY. IIT 
 
 appear they will probably bind domestic tribunals, and forbid. 
 a collateral attack,' and are conclusive as to jurisdiction in in- 
 terstate judgments.^ He may show that it was a fictitious 
 suit, or that it has been reversed, or, if he is a stranger to it, 
 that it was obtained by fraud or collusion, to which neither he 
 nor any person to whom he is privy was a party.' 
 
 § 31. Surrogate's decree. — In an action to set aside a deed 
 on the ground of the mental incapacity of the grantor at the 
 time of its execution, the decree of the surrogate refusing to 
 admit to probate the will of the grantor, executed the same 
 day as the deed, under the objection of the grantee that the 
 executor was mentally incompetent to make such will, is, while 
 jprima facie evidence of the matters adjudged in it, not abso- 
 lutely conclusive as an estoppel against such grantee.* 
 
 § 32. Judgment in criminal case not evidence in civil case. 
 A verdict and judgment in a criminal case cannot be given in 
 evidence in a civil action to establish the facts upon which it 
 is rendered,' nor the fact on which the conviction must have 
 proceeded ; ' nor is the judgment of acquittal evidence in his 
 favor, for the parties are not the same.^ It has been said that 
 the presumption of probable cause in an action for malicious 
 prosecution, arising from plaintiff's conviction on the charge 
 brought, may be rebutted by proof of any facts depriving the 
 conviction of any probative effect, — as, that it was had under 
 a misapprehension by the convicting court as to the law ap- 
 plicable to the facts in the case.* A verdict of a coroner's 
 jury has been held to be evidence in an action on a life insur- 
 ance policy on the life of the person upon which such verdict 
 was rendered.' 
 
 Penobscot R R Co. v. Weeks, 53 Me. Eep. 458, 76 Hud, 98 ; Hayes Succes- 
 
 456 ; Coit v. Haven, 30 Conn. 190, 197 ; sion, 49 La. Ann. 743 ; People v. Me- 
 
 McCauley v. Fulton, 44 Cal. 355 ; Smith dart, 166 111. 348. 
 
 V. Wood, 37 Tex. 616. s People v. Rohrs, 49 Hun, 150 ; 
 
 1 Wilcher v. Robertson, 78 Va. 616. Stone v. United States, 167 D. S. 178. 
 
 2 Thompson v. Emmert, 4 McLean, ^Castrique v. Imrie, L. R 4 App.^ 
 96 ; Pritchett v. Clark, 4 Harr. (Del.) Cas. 414, 434 ; Tayl. Ev., § 1505 ; Stark. 
 280;. Wescott v. Brown, 13 Ind. 83; Ev. 361 (4th ed,); 3 Phil. Ev. 27 
 Lapham v. Briggs, 27 Vt. 26 ; Thorn (10th ed.). 
 
 V. Salmonson, 37 Kan. 441. 'Tayl. Ev., § 1505; Stark. Ev. 333 
 
 3 3 Phil. Ev. 35 ; Mandeville v. (4th ed.) ; Masc. Prob. Concl., 34, n. 1. 
 Reynolds, 68 N. Y. 528 ; Verplanck v. 8 Meher v. Dobbs, 47 Neb. 863. 
 Van Buren, 76 id. 247. ^ Fein v. Covenant Mut. Ben. Ass'n, 
 
 < Baxter v. Baxter, 57 N. Y. State 60 111. App. 374 ; Southern R. Co. v. 
 
118 EULES OP EVIDENCE. 
 
 § 33. Parol evidence to explain judicial records.— Judi- 
 cial records import verity on their face, and parol evidence is 
 inadmissible to vary, contradict or explain them.^ Thus, parol 
 evidence cannot be given to contradict recitals in a record as 
 to appearance of parties and the like ; ^ the recitals as to the 
 return of an officer;' or that no demand was made before ac- 
 tion;'' or that no fraud was shown on the trial ;^ or that com- 
 missioners held no meeting when their report shows that they 
 did.^ Parol evidence may, however, be given to show what 
 was litigated upon the trial, but it must be consistent with the 
 record and cannot be admitted to contradict it.' Thus, parol 
 evidence cannot be given to show that no witnesses were 
 sworn or hearing had,^ or that no notice has been given where 
 the record shows that there has been.^ But parol evidence 
 may be given to show that a judgment for defendant " was 
 admitted without prejudice ;"^° or as to whether or not the 
 merits were inquired into in a prior suit for the same cause;" 
 or that no proof was offered to support the plea of former ac- 
 tion pending. ^^ In an action on a judgment the defendant 
 may allege and prove the illegality of the judgment, etc.'' Al- 
 though domestic judgments cannot be impeached collaterally," 
 on direct proceedings the same facts can be shown as would 
 vacate an interstate or foreign judgment on collateral attack." 
 Parol evidence may be given to show the facts for the pur- 
 pose of amending a record,'^ and for the purpose of showing 
 
 Bonknight, 30 L. E. A. 823; Cusliing C.irleton v. Lombard, A. & Co., 149 
 V. Friendship, 89 Me. 525. N. Y. 1.S7 ; Embden v. Lisherneas, 89 
 
 1 Townsend v. Fotenot, 42 La. Ann. Me. 578. 
 
 890 ; Tynan v. Weinhard, 152 111. 598 ; 8 Gallup v. Smith, 59 Conn. 354. 
 
 Tacoma v. Tacoma L. & W. Co., 16 9 Marrow v. Brinkley, 85 Va. 55. 
 
 Wash. 288. w Ostrander v. Scott, 161 111. 339. 
 
 2 Bentley v. Brown, 123 Ind. 552. n Davis v. Davis, 108 N. C. 501. 
 
 3 Davis V. Sawyer, 13 N. H. 179; 12 Lorillard v. Clyde, 122 N. Y. 41. 
 State v. Main, 69 Conn. 123. " Lazarus v. McGuirk, 42 La. Ann. 
 
 4 Williams v. Lewis, 121 Ind. 344. 194. 
 
 6 Case V. Gordon, 33 Mo. App. 597 ; " Harris v. McClanahan, 11 Lea, 181 ; 
 
 People V. Hoas, 79 Mich. 449. Mussey v. White, 58 Vt 45 ; Spotts v. 
 
 6 Quick V. River Forest, 130 111. 323 ; Com., 85 Va. 531 ; Hardy v. Beaty, 84 
 
 Brooks v. Mayor of New York, 57 Tex. 562. 
 Hun, 104, 32 N. Y. State, Rep. 559. is Carleton v. Bickford, 13 Gray, 591 ; 
 
 'Lorillardv. Clyde, 133 N. Y. 41, Thompson v. Whitman, 18 Wall. 457; 
 
 33 N. Y. State Rep. 303 ; Equitable Needham v. Thayer, 147 Mass. 536. 
 Trust Co. V. Smith, 77 Fed. Rep. 677 ; ^ Davis v. Sawyer, 63 N. H. 179. 
 Curry v. Wyborn, 13 App. Div. 1; 
 
EVIDENCE EXCLUDED FEOM PUBLIC POLICY. 119 
 
 that the court bad no jurisdiction.' So where the record is 
 silent as to the precise claim upon which the judgment was 
 predicated, it may be shown by reference to the pleadings or 
 by parol, as to identify the note on which it was rendered.^ 
 The parties to a judgment may be identified by parol. So 
 may the day of adjudication ; ' the evidence given on the issue; * 
 upon what issue the verdict was based ;^ and that the causes 
 of action are the same. A judgment in partition is compe- 
 tent evidence for or against both parties and strangers, as con- 
 stituting a part of the chain of title.^ Such a judgment set- 
 ting off to one a portion of property claimed in common with 
 others is equivalent to a quitclaim deed from the other par- 
 ties to the suit of their respective interests, and is competent, 
 though not conclusive, evidence in his behalf, although the 
 other parties were not parties to the suit.' 
 
 TII. ESTOPPEL. 
 
 § 34. Pleading necessary when. — Sir J. Stephen, in his 
 Digest of the Law of Evidence,^ states the rules of estoppel as 
 follows: "When one person, by anything which he says or 
 does, or abstains from doing or saying, intentionally causes or 
 permits another person to believe a thing to be true, and to 
 act upon such belief otherwise than but for that belief he 
 would have acted, neither the person first mentioned nor his 
 representative in interest is allowed, in any suit or proceeding 
 between himself and such person or his representative in in- 
 terest, to deny the truth of that thing." ' " When any person 
 under a legal duty to any other person to conduct himself with 
 reasonable caution in the transaction of any business neglects 
 that duty, and when the person to whom the duty is owing 
 alters his position for the worse because he is misled as to the 
 conduct of the negligent person by a fraud, of which such neg- 
 
 1 Larocque v. Harvey, 57 Hun, 336, 6 Gage v. Gaudy, 141 III 215. 
 
 33 N. Y. State Rep. 415. 7 McDonald v. Hannah, 51 Fed. Rep. 
 
 2 Hampton v. Dean, 4 Tex. 455; 78. 
 
 Parker v. Thompson, 3 Pick. (Mass.) e Arts. 103-105. 
 
 439. s Barnard v. Campbell, 55 N. Y. 456, 
 
 3 Packet Co. v. Sickles, 5 Wall. 593. 4fi3; Rice v. Barrett, 116 Mass. 813; 
 < State T. Thompson, 19 Iowa, 299. Zuchtman v. Roberts, 109 id. 53, 54, 
 
 6 Washington & C. S. P. Co. v. 
 Sickles, 24 How. (U. S.) 333. 
 
120 EULES OF EVIDENCE. 
 
 lect is in the natural course of things the proximate cause, the 
 negligent person is not permitted to deny that he acted in the 
 manner in which the pefson was led by such fraud to believe 
 him to act." ^ " JSTo tenant and no person claiming through any 
 tenant of any land or hereditament of which he has been led 
 into possession, or for which he has paid rent, is, till he has 
 given up possession, permitted to deny that the landlord had^ 
 at the time when the tenant was let into possession or paid the 
 rent, a title to such land or hereditalment;^ and no person 
 who came upon any land by the license of the person in pos- 
 session thereof is, whilst he remains on it, permitted to deny 
 that such person had a title to such possession at the time 
 when such license was given." ' "No acceptor of a bill of ex- 
 . change is permitted to deny the signature of the drawer or 
 his capacity to draw, or, if the bill is payable to the order of 
 the drawer, his capacity to indorse the bill, though he may 
 deny the fact of the indorsement;* nor, if the bill be drawn 
 by procuration, the authority of the agent, by whom it pur- 
 ports to be drawn, to draw in the name of the principal,* 
 though he may deny his authority to indorse it." * " No bailee, 
 agent or licensee' is permitted to deny that the bailor, princi- 
 pal or licensor, by whom any goods were intrusted to any of 
 them respectively, was entitled to those goods at the time 
 when they were so intrusted ; provided that such bailee, agent 
 or licensee may show that he was compelled to deliver up any 
 such goods to some person who had a right to them as against 
 his bailor, principal or licensor, or that his bailor, principal or 
 licensor wrongfully, and without notice to the bailee, agent or 
 licensee, obtained the goods from a third person who has 
 claimed them from such bailee, agent or licensee."^ 
 
 1 Pickard v. Sears, 6 A. & E. 469, 289, 293 ; Glynn v. George, 20 N. H. 
 474; Freeman v. Cooke, 2 Ex. 661; 114. 
 
 Howard v. Hudson, 3 E. & B. 1; ^ Garland v. Jacomb, L. R. 8 Ex. 316. 
 
 Chapman v. Rose, 56 N. Y. 137, 140 ; 5 Sanderson v, Coleman, 4 M. & G. 
 
 Putnam v. Sullivan, 4 Mass. 45, 53. 209. 
 
 2 Doe V. Barton, 11 A. & E. 307; 6 Robinson v. Yarrow, 7 Taunt 455 ; 
 Doe V. Smyth, 4 M. & S. 347 ; Doe v. 1 Parsons on Notes & Bills, ch. 9, § 5, 
 Pegg, 1 T. R. 760 ; Miller v. Long, 99 p. 320. 
 
 Mass. 13 ; Haws v. Shaw, 100 id. 187 ; ^ Dixon v. Hammon, 2 B. & A. 313j 
 
 Whaliu V. White, 25 N. Y. 462, 468. Crossley v. Dixon, 10 H. L. G 293; 
 
 3 Doe V. Bay tup, 3 A. & E. 188; Gosling v. Birnie, 7 Bing. 339 ; Hard- 
 Kinsman v. Parkhurst, 18 How. (.U, S.) man v. Wilcox, 9 id. 383; Biddle v.. 
 
EVIDENCE EXCLUDED EEOM PUBLIC POLICY. 121' 
 
 Estoppels are of three kinds : ^ 1. By matter of record. 2. Cy 
 deed. Coke (in loc. cit.) says " matter in. writing," but it is 
 clear that "deed" was meant; and in our old books the word 
 "writing" is constantly used in that limited sense. 3. By 
 matter in pais? Rules regulating the conclusive efifect upon 
 the parties and privies thereto of the recitals in a deed come 
 under the law of real property,' and will not be discussed here. 
 Thus, in general, estoppels affect only the parties and privies to 
 the acts which work the estoppel ; and strangers are not bound 
 by the-m and cannot take advantage of them.* Yet, when the 
 record of an estoppel runs to the disability of legitimation of 
 the person, strangers shall both take the benefit of, and be 
 concluded by, that record, as in case of outlawry, excommuni- 
 cation, profession, attainder of praamunire, of felony, etc.^ But 
 a record concerning the name, quality or condition of the per- 
 son has not this effect. Modern policy admits the witness, 
 but excludes portions of his evidence, on the ground that wit- 
 nesses are usually competent, but much relevant evidence is- 
 not. Refusal to hear evidence is quite as clumsy as refusing 
 to hear a witness." It seems that conflicting estoppels neutral- 
 ize each other, or, as our books express it, " estoppel against 
 estoppel doth put the matter at large." ' The American rule- 
 seems to be that whenever one person, either intentionally or- 
 with gross negligence, by statement or conduct, causes or al- 
 lows another person to believe a certain fact or facts to be- 
 true, it will not be permitted to the person first mentioned 
 
 Bond, 34 L. J. Q. B. 137; Wilson v. Smith v. Penny, 44 Cal. 161; Gould- 
 
 Anderton, 1 B. & Ad. 450 ; Rogers t. smith v. Coleman, 57 Ga. 425 ; Manu- 
 
 Weir, 34 N. Y. 463 ; King v. Richards, factoring Co. v. Elizabeth, 42 N. J. L. 
 
 6 Whart. 418, 421. 249; Noble v. Cope, 50 Pa. St. 17; 
 
 1 Co. Litt, 352a; 3 Smith's L. C. 657 Polk v. Chaison, 72 Tex. 500. 
 (5th ed.). ■> Co. Litt. 353a. 
 
 2 The Ottumwa Belle, 78 Fed. Rep. ^ Co. Litt 353&. 
 
 643. 6 1 Greenl. Ev., g§ 23, 23, n., 27, 204- 
 
 sBigelow on Estop., 301, 321; 1 210; 4 Kent's Com., 261, n. ; Jones v. 
 
 Greenl. Ev., §§ 23-26; 3 Whart. Ev., Sasser, 1 Dev. & Bat. (N. C.) 453, 464; 
 
 §§ 1039, 1043 ; Johnson v. Thompson, Blake v. Tucker, 13 Vt. 39, 44 ; Pelle- 
 
 139 Mass. 398; Girard v. Bradstreet, treau v. Jackson, 11 Wend. 110, 117;. 
 
 4 Rev. Leg. 376 ; Smith v. Graham, Mills v. Graves, 38 111. 455. 
 
 34 Mich. 303; Shevlin v. Whelen, 41 'Co. Litt. 353b; 2 Smith's L. C. 660- 
 
 Wis. 88 ; Carver v. Jackson, 4 Pet. 1, (5th ed.) ; R v. Haighton, 1 E. & B., 
 
 83; Millard v. McMullin, 68 N. Y. 506. 
 345; Glasglow v. Baker, 73 Mo. 441; 
 
122 
 
 EULES OF EYIDBNCE. 
 
 to deny the truth of such fact or facts in any suit between 
 such persons or their representatives in legal interest; ' where 
 the party claiming such estoppel, or his predecessor in legal 
 interest, was expected to act upon such representation, and did 
 in point of fact so act without negligence or bad faith ; ^ if the 
 party is or may be prejudiced by the denial.' 
 
 With respect to estoppels b}'- pleading, a party M'ho does 
 not plead within the time required by law is taken to confess 
 that his adversary is entitled to judgment. So a party may, 
 by resorting to one kind of plea, be concluded from afterwards 
 availing himself of another. 
 
 As to the effect of admissions, express or implied, in plead- 
 ings, the following rule, which certainly savors of technicality, 
 
 1 Dale Bros. Co. v. Cosmopolitan P. 
 Co., 167 Mass. 481 ; Bigelow on Estop., 
 485 ; Redd v. Muscogee R. R. Co., 48 
 Ga. 102 ; Stevens v. Dennett, 51 N. H. 
 324; KixoQ v. Carco, 28 Miss. 414; 
 Rose V. Mayor, etc. of Baltimore, 51 
 Md. 256 ; Sweezey v. Collins, 40 Iowa, 
 540 ; New York Rubber Co. v. Roth- 
 ery, 107 N. Y. 310; Roer Iron Co. 
 V. Trout, 83 Va. 398; Guiohard v. 
 Brande, 57 Wis. 544 ; Bynum v. Pres- 
 ton, 69 Tex. 287; Bond v. Terrell 
 Mfg. Co., 82 Tex. 309; Warner v. 
 New Orleans, 167 U. S. 467 ; Martin 
 V. Righter, 10 N. J. Eq. 510 ; Hawley 
 V. Middlebrook, 28 Conn. 527 ; Stone 
 V. Britton, 22 Ala. 548 ; Williams v. 
 Jackson, 28 Ind. 334 ; Forsyth v. Day, 
 46 Me. 176 ; Jewell v. Paper Co,, 101 
 111. 57 ; Kirk v. Hartmann, 63 Pa. St 
 97 ; Rice v. Bunoe, 49 Mo. 231 ; Man- 
 ufacturers' Bank v. Hazard, 30 N. Y. 
 226 ; Jackson v. Allen, . 120 Mass. 64, 
 69. 
 
 2 City R. Co. V. Citizens' St. R. Co., 
 166 U. S. 557 ; Andrews v. Lyon, 11 
 Allen, 849 ; Muller v. Pondir, 55 N. Y. 
 325 ; Davis v. Smith, 43 Vt. 209, 276 ; 
 Mutual Life Ins. Co. v. Norris, 31 N. J. 
 Eq. 583; McCune v. McMichael, 20 
 Ga. 312 ; Wilson v. Castro, 31 Cal. 430 ; 
 ^Crosson v. May, 68 Ind. 242 ; Graves 
 \. Blondell, 70 Me. 190 ; Tower v. Has- 
 1am, 85 Me. 86; Touseley v. Board 
 
 of Education, 39 Minn. 419; Chellis 
 v. Coble, 37 Kan. 558; Mitchell v. 
 Amador Co., 75 Cal. 464; Griffith 
 V. Wright, 6 Colo. 248 ; Wortham v. 
 Thompson, 81 Tex. 348 ; G ooding v. 
 Underwood, 89 Mich. 187 ; Morgan v, 
 Farrell, 58 Conn. 413 ; Wilds v. Attix," 
 4 Del. Ch. 358 ; Swager v. Lehman, 63 
 Wis. 399; Mayer v. Erhard, 88 lit 
 453 ; Hazelton v. Batchelder, 44 N. H. 
 40 ; Darrah v. Bryant, 56 Pa. St. 69 ; 
 Horn V. Cole, 51 N. H. 287; Bright- 
 man V. Hicks, 108 Mass. 246 ; Roby v. 
 Title Guarantee & T. Co., 166 111. 336. 
 ' 1 Greenl. Ev., § 22, n. ; Chicago v. 
 Sawyer, 166 111. 390 ; Kirkpatriok v. 
 Brown, 59 Ga. 450, 453 ; Payne v. Burn- 
 ham, 63 N. Y. 69 ; Nourse v. Nourse, 
 116 Mass. 101 ; Security Ins. Co. v. 
 Fay, 32 Mich. 256 ; Turnipseed v. Hud- 
 son, 50 Miss. 429 ; Tucker v. Conwell, 
 67 111. 552 ; Allum v. Perry, 68 Me. 
 333; McCabe v. Raney, 33 Ind. 809; 
 Rosebrough v. Ansley, 35 Ohio St. 
 107 ; MoKnight v. Pittsburgh, 91 Pa. 
 St. 278; Reynolds v. Adden, 186 U.S.* 
 348; Carter Maoh. Co. v. Hanes, 43 
 U. S. App. 314; Quimby v. Lowell, 
 89 Me. 547 ; Larkins v. Parmelee, 69 
 Conn. 79 ; Jackson v. Allen, 130 Mass. 
 64, 79 ; White v. Ash ton, 51 N. Y. 280 ; 
 Keating v. Orne, 77 Pa. St. 89; Ben- 
 nett v. Dean, 41 Mich. 43. 
 
EVIDENCE EXCLUDED FROM PUBLIC POLICT. 123 
 
 is laid down in the books, viz. : Tiaat the material facts alleged 
 by one party, which are directly admitted by the opposite 
 party, or indirectly admitted by taking a traverse on some 
 other facts, cannot be again litigated between the same parties, 
 and are conclusive evidence between them, but only if the 
 traverse is found against the party making it.' 
 
 Where a party intends to conclude another by an estoppel, 
 he ought to give him an opportunity of deliberately replying 
 to it, and not spring it upon him at nisi2mus. With due notice, 
 the adversary might be able to show that the matter relied on 
 as an estoppel was not such in reality, as not relating to the 
 property or transaction in controversy ; or, if it were, that its 
 effect had been removed by matter subsequent ; as, for instance, 
 that the party pleading the estoppel had by some other pro- 
 ceeding concluded himself from taking the objection, — estop- 
 pel against estoppel setting the matter at large; or when the 
 estoppel relied on is a judgment, that that judgment had been 
 reversed on error, or deprived of binding force by statute. 
 Thus, the rule is that an estoppel by record or deed is conclu- 
 sive as a plea when there is an opportunity to plead it, but 
 when there is no such opportunity it is conclusive as evidence.^ 
 
 § 35. What acts work an estoppel. — ^A person contracting 
 a debt cannot, by a contemporaneous and simple waiver of the 
 benefit of the exemption laws, entitle the creditor, in case of 
 failure to pay, to levy his execution upon exempt property. 
 Such an agreement is said to be contrary to public policy and 
 will not be enforced.' Any language, whether verbal or writ- 
 ten, employed by an officer of a banking institution, represent- 
 ing that a check drawn upon it is good and will be paid, estops 
 the bank from thereafter denying, as against a honajide holder 
 of the check, the want of funds to pay the same.* Thus, a lo?ia 
 fide holder, for value, of a check negotiable upon its face, and 
 certified to be good by the paying teller of the bank on which 
 'it is drawn, whose authority to certify is limited to cases where 
 
 1 Boileau v. Rutlin, 3 Exoh. 665 ; 3 Kneetle v. Newcomb, 33 N. Y. 249 ; 
 Robins v. Lord Maidstone, 4 Q. B. 811 ; Curtis v. O'Brien, 80 Iowa, 376 ; Max- 
 Brook, Abr., Protestacion, pi. 14; Co. well v. Reed, 7 Wis. 583; Recht v. 
 Litt 1246. Kelly, 83 III. 147. 
 
 2 Flandreau v. Downey, 83 Cail. 354, « Merchants' Nat Bank v. State Nat 
 SSmith'sLead. Cas.(7th Am.ed.)638; Bank, 10 Wall. 604; Irving Bank v. 
 Dalton V. Fitzgerald (1897), 1 Ch. 440. Wetherald, 36 N. Y. 835. 
 
12i EULES OF EVIDENCE. 
 
 the bank has funds of the drawer on hand sufficient to pay 
 check, can enforce the payment of the check, although the 
 drawer has not such funds and the check was certified by the 
 teller without funds, in violation of his duty.^ The guarantor 
 of a bond is estopped to deny the competency of the makers 
 of it;^ and the maker of a note cannot defend an action 
 brought by an indorsee upon the ground that the payee was 
 an infant.* So a party indorsing a promissory note impliedly 
 affirms its genuineness, as well as that of all previous indorse- 
 ments.'' The acceptance of a bill and the indorsement of a bill 
 or note are a conclusive admission that the signature of the 
 drawer in the one case, and of all the prior parties in the 
 other, is genuine.' One who has received property from an- 
 other as his bailee, or agent, or servant, must restore or account 
 for that property to him from whom he received it.* A tenant 
 is not estopped to deny his landlord's title, after that title, 
 under which his own tenancy began, has ended and the estate 
 has become vested in the tenant himself.' It has been said 
 that a party claiming an interest in land, who sees it conveyed 
 to others without objection, without giving notice of his own 
 claim, is estopped from afterward setting it up as against that 
 conveyance ; ^ and that the rule extends to infants.' Such state- 
 ments, however, must be taken with great caution.^" If a party 
 stands by and sees another converting his goods and material 
 in any way to his own use, without protest, and such knowl- 
 edge of their use can be shown, he is estopped from claiming 
 the property." Long acquiescence in accounts rendered is pr{?n.a 
 facie evidence of their correctness.^^ If one man knowingly, 
 
 1 Farmers', etc. Bank v. Butchers' etc. R Co. v. Neill, 16 III. 269 ; Bige- 
 & D. Bank, 16 N. Y. 125. low on Estop. 427. 
 
 2 Arnot V. Erie Ry. Co., 5 Hun, 608, « Vosburgh v. Huntington, 15 Abb. 
 67 N. jY. 315 ; Eemsen v. Graves, 41 Pr. (N. Y.) 254 ; Osgood v. Nichols, 5 
 N. Y. 471. Gray, 420. 
 
 3 Garner v. Cook, 30 Ind. 331 ; ' Ryder v. Mansell, 66 Me. 167. 
 Sunny S. L. Co. v. A. J. Neimeyer L. 8 Cady v. Owen, 34 Vt 598 ; Nixon ' 
 Co., 63 Ark. 268. v. Carco, 28 Miss. 414. 
 
 * Woodward V. Harbin, 1 Ala. 104; 9 Davis v. Tingle, 8 B. Mon. (Ky.) 
 
 (yOKgill V. American Ex. Bank, 1 N. 539; Dann v. Cudney, 13 Mich. 239; 
 
 y, 113. Sindall v. Jones, 57 Ga. 85. 
 
 5 Levy V. Bank of United States, 1 i" Day v. Philbrook, 89 Me. 462. 
 
 Binn. (Pa.) 27, 4 Dall. 234 ; Glidden v. n Hogan v. City of Brooklyn, 52 N. 
 
 Chamberlin, 167 Mass. 486; Phillips Y. 282. 
 
 V. Imtliurn, L. E. 1 0. P. 403 ; Peoria, 12 Gueinaey v. Rexford, 63 N. Y. 621 ; 
 
EVIDENCE EXCLUDED FEOM PUBLIC POLICY. 125 
 
 bj' looking on, suffers another to purchase and expend money 
 on land, under an erroneous opinion of title, without making 
 known his claim, he cannot afterward be permitted to exercise 
 his legal right against such person.^ 
 
 Where a certificate of an ofHcer is offered in evidence against 
 him in any cause where he is a party, the certificate being his 
 official act, done under the sanction of his oath, in the per- 
 formance of a duty imposed upon him by law, though under 
 some circumstances it may be impeached by others, he is pre- 
 cluded from denying the truth of what he has officially certi- 
 fied.^ Where a person has notice that property owned by hira 
 is about to be sold on execution against another, he is bound 
 to give notice of his claim, and mere possession of the prop- 
 erty by him is not sufficient notice.' If one signs a written 
 contract without acquainting himself with its contents, he is 
 estopped by his own negligence to ask relief from his obliga- 
 ' tion, if his signature be procured without fraud or artifice.^ 
 If one give a note to a corporation, he will not be permitted 
 to deny that there is such a corporation.* If the owner of a 
 note allows another person to hold himself out as the owner 
 of the note, and as such deals with it, he will be bound by the 
 declarations of that person, and estopped to deny his right to 
 make them.* It is the fact that the declaration has been acted 
 upon by others that constitutes the liability to them.' Thus, 
 declarations, to create an estoppel, must be made by a party 
 whose duty it is to know and state the truth, and must be re- 
 lied upon by one who has no other means of information, or , 
 is justified in relying upon such declarations.* As we have 
 already seen, where one, by his words or actions, intentionally 
 causes another to believe in the existence of a certain state 
 
 Wiggins V. Barkham, 10 Wall. 129; 5 Nashua Fire Ins. Co. v. Moore, 55 
 
 Bloomenthalv. Ford, (H.L.E.) [1897] N. H. 48; Bank of Galliopolis v. 
 
 A. C. 156, 66 L. J. Ch. (N. S.) 253. Trimble, 6 B. Mon. (Ky.) 599; Cali- 
 
 1 Wendell v. Van Rensselaer, 1 fornia Nat Bank v. Kennedy, 167 
 
 Johns. Ch. 344; Tilton v. Nelson, 37 U. S. 363. 
 
 Barb. 595 ; Philhower v. Todd, 11 N. J. 6 Reed v. Vancleve, 27 N. J. L. 853. 
 
 Eq. 313. 7 McGee v. Stone, 9 Cal. 606. 
 
 2 Matthews v. Dare, 20 Md. 248. 8 Hambleton t. Central Ohio R. R. 
 
 3 Keeler v. Vantuyle, 6 Pa. St 250. Co., 44 Md. 551 ; Stevens v. Melcher, 
 
 * MoCormack v. Molburg, 43 Iowa, 152 N. Y. 551 ; Joliet v. Werner, 166 
 
 561 ; Hunter v. Miller, 6 B. Mon. (Ky.) 111. 34. 
 C13 ; Rogers v. Place, 29 Ind. 577. 
 
126 EULES OF EVIDENCE. 
 
 of things, and thereby induces him to act on that belief so 
 as injuriously to affect him, he is precluded from averring a 
 different state of things as existing at the time.^ We have 
 also seen that the party who pleads an estoppel must be one 
 who was adversely affected by the act which constitutes the 
 estoppel.^ An infant can only be estopped, if ever, in the case 
 of a pure tort.' And as an infant is not bound by an estoppel 
 in pais, he cannot claim one against an adult.* Thus, as we 
 have seen, parties under disability, as infants, are not estopped 
 unless their conduct has been intentional.' We have already 
 seen that no man can set up another's act or declaration as the 
 ground of an estoppel, unless he has himself been misled or 
 deceived by it.^ It is not necessary that the party who claims 
 the estoppel should have acted affirmatively upon it. It is 
 enough if he shall have been induced to refrain from such ac- 
 tion as lay in his power by which he might have retrieved his 
 position and saved himself from loss.' It is not necessary to 
 the estoppel that the party should intend wilfully to mislead; 
 but whatever may be the intent, if he make such a representa- 
 tion as a sensible man would take to be true, and believe that 
 it was meant that he should act upon it, and he does so act, 
 the party making the representation is precluded from con- 
 testing its truth.' 
 
 In order to make out an estoppel it must not only appear 
 that the representation was made with knowledge of the facts, 
 but the party to whom it was made must have been ignorant 
 of the truth of the matter, and also destitute of all convenient 
 or ready means of acquiring such knowledge by the use of or- 
 dinary diligence.' Estoppels in pais cannot apply unless the 
 
 1 Arnold V. Cornman, 50Pa. St. 361; ^gjoipgon f, Pearson, 31 Ind. 1; 
 Richardson v. Chiokering, 41 N. H. Brady v. Elliott, 181 Pa. St. 259. 
 
 380 ; Martin v. Eighler, 10 N. J. Eq. ' Voorhees v. Olmstead, 6 N. Y. 
 510. Sup. Ct (T. & C.) 173, 3 Hun, 744, 66 
 
 2 Cuttle V. Brock way, 33 Pa. St. 45 ; N. Y. 113. 
 
 Wood V. Pennell, 51 Md. 53. 8 Continental Nat. Bank v. National 
 
 3 Bigelow on Estop. 493. Bank of Com., 50 N. Y. 575 ; Blair v. 
 ^Montgomery v. Gordon, 51 Ala. Wail, 69 N. Y. 113 ; Cornish v. Abing- 
 
 377. ton, 4 Hurl. & N. 549 ; The Ottumwa 
 
 5 Rogers v. Higgins, 48 III. 311 
 Oglesby Coal Co. v. Pasco, 79 111. 164 
 Miles V. Lingerman, 34 Ind. 385 
 
 Belle, 78 Fed. Rep. 643. 
 
 siBoggs V. Merced Mining Co., 14 
 Cal. 279 ; Martin v. Zellerbach, 88 id. 
 
 Baines v. Burbridge, 15 La. Ann. 638. 300 ; Woods v. Wilson, 37 Pa. St. 884! 
 
EVIDENCE EXCLUDED EEOM PUBLIC I'OLIOi". 12T 
 
 party doing the act or making the admission knows at the 
 time the truth of the matter about which he is acting or mak- 
 ing admissions, or pretends that he knows the same, or has 
 better means of knowing the same than the other party.^ The 
 representation or concealment must have reference to a fact 
 or state of things actually existing, or past and executed, and 
 not to a present intention or purpose concerning something 
 in the future." There must generally be some intended de- 
 ception in the conduct or declarations of the party to be 
 estopped, or such gross negligence on his part as to amount 
 to constructive fraud by which another has been misled to his 
 injury.' It is held that the state is not bound by an estoppel, 
 nor is a grantee from the state estopped to deny what the 
 state, from, whom he claims, is at liberty to assert.* As estop- 
 pels must be mutual, it follows that they are, in general, lim- 
 ited to parties and privies.^ Privies, or those who derive title 
 from or through the parties, ordinarily stand in the same po- 
 sition as the parties, and will be bound by every estoppel that 
 would have been binding on them.^ 
 
 § 36» Insurance — Preliminary proof not conclusive. — 
 The preliminary proofs of loss, in an action upon a policy of 
 insurance, are not conclusive upon the claimant. K'othing but 
 a technical estoppel will shut out the truth.' The statements 
 contained in preliminary proofs of loss do not create an estop- 
 pel because all the essential requirements thereof are wanting.* 
 The- statements made by an assured on the proofs of loss are 
 admissible, and may be considered by the jury for what they 
 
 Harableton v. Central Ohio R. Co., 44 * Candler v. Lunsford, 4 Dev. & 
 
 Md. 551 ; Hall v. Westchester Pub. Bat. (N. C.) L. 407. 
 
 Co., 18U Pa. St. 561. SDgery v. Cray, 5 Wall. 795; Nut- 
 
 1 Clark V. Coolidge, 8 Kan. 189 ; well v. Tongue. 23 Md. 419 ; Griffin 
 Liverpool Wharf v. Prescott, 7 Allen, v. Richardson, 11 Ired. (N. C.) L. 439 ; 
 494 ; Rutherford v. Tracy, 48 Mo. 325 ; Waters' Appeal, 35 Pa. St. 523 ; Myera 
 Smith V. McNamara, 4 Lans. (N. Y.) v. Myers, 167 III. 52. 
 
 169 ; Reed v. McCourt, 41 N. Y. 435. « Carver v. Jackson, 4 Pet. 1 ; Wark 
 
 2 Musgrave v. Sherwood, 54 How. v. Willard, 13 N. H. 389 ; Hussey v. 
 Pr. (N. Y.) 338; White v. Ashton, 51 Hill, 119 N. C. 318. 
 
 N. Y. 380 ; Langdon v. Dond, 10 Allen, ' Phillips v. Insurance Co., 56 Hun, 
 
 433. 640, 31 N. Y. State Rep. 639 ; Cluffy 
 
 3 Brant v. Virginia Coal, etc. Co., 93 v. Insurance Co., 99 Mass. 817. 
 U. S. 336; Moss v. United States, 166 egmith v. Ferris, 1 Daly, 18. 
 id. 571. 
 
128 EULES OF EVIDENCE. 
 
 are worth ; but the party furnishing them may show that state- 
 ments in the proofs were erroneous or inadvertently made.' 
 
 § 37, Offer to settle or compromise. — Negotiations or prop- 
 ositions looking to the settlement of a controversy without 
 action cannot be given in evidence as admissions of liability. 
 The rule is well founded in reason. The law is willing to en- 
 courage the compromise and settlement of controversies with- 
 out litigation, and holds communications looking to that end 
 as privileged in their character, and not to be used to the prej- 
 udice of the party making them. It is true the privilege does 
 not extend to the admission of a disputed fact, even though 
 made in the course of such negotiations. The principle is that 
 
 ■ an offer, or consent, or expression of willingness to settle, is 
 not to be taken as an admission of liability, and is therefore 
 not evidence of the fact. The same rule excludes evidence of 
 a settlement of the claim of another person for damages done 
 
 'by the same negligence.^ 
 
 While it is said that an offer of a sum by way of compro- 
 mise is admissible, unless stated to be confidential or made 
 without prejudice,' the general rule is that no offer made by 
 either party by way of compromise or to buy peace is admis- 
 sible as an admission in a civil suit, if it is made either upon 
 an express condition that evidence of it is not to be given,* 
 
 ■or under circumstances from which it may be inferred that 
 the parties agreed together that evidence of it should not be 
 given ;^ admissions of any independent facts are competent, 
 though made during a treaty or compromise.^ Thus, an offer 
 
 •of compromise, for the purpose of evading trouble and pur- 
 chasing his peace by the person making it, is not admissible 
 
 1 May on Insurance (3d ed.), § 465 ; < York v. Conde, 66 Hun, 316, 49 
 Cusliman v. United States Ins. Co., 70 N. Y. State Rep. 544 ; Darby v. Eob- 
 N. Y. 72; Spencer v. Citizens' Mut erts, 3 Tex. Civ. App. 437; Cory v. 
 Life Ins. Co., 53 N. Y. State Rep. 443; Bretton, 4 C. & P, 462. 
 
 King V. Doanes, 139 U. S. 166; Knee- ^Home Ins. Co. v. Bait, W. Co., 93 
 
 .land V. Lawrence, 140 id. 309 ; Lytle U. S. 537 ; 1 Phillips' Ev. 147 ; Paddock 
 
 V. Lansing, 147 id. 59. v. P'orrester, 5 M. & G. 918. 
 
 2 Slingerland v. Norton, 58 Hun, ^ Murray v. Coster, 4 Cow. 618 ; Ger- 
 -678, 35 N. Y. State Rep. 436; York v. risb v. Sweetzer, 4 Pick. 374; Hart- 
 
 <:onde, 66 Hun, 316, 49 N. Y. State ford Bridge Co. v. Granger, 4 Genu. 
 Bep. 544. . 143. 
 
 SBrice v. Bauer, 108 N. Y. 428, 13 
 N. Y. State Rep. 765. 
 
EVIDENCE EXCLUDED FKOM PUBLIC POLICY. 129 
 
 in evidence,^ either as admission of guilt or liability ; ^ and an 
 unaccepted offer of compromise by a defendant in a bastardy 
 case is not admissible in evidence.' An offer to pay a certain 
 amount rather than have litigation is inadmissible.* Evidence 
 of a demand by plaintiff for a less sum than that claimed in 
 the action, with a statement that he should sue if not paid, is 
 admissible in the absence of proof that the same was made as 
 a compromise offer, or while negotiating for a peaceful settle- 
 ment, or in view of a compromise. Admissions of particular 
 facts concerning a claim, in a letter offering to pay a certain 
 amount to compromise it, are competent evidence, although 
 the offer to pay it is not.^ When the compromise offer is ac- 
 cepted, the privilege is at an end.* It has been said that the 
 question whether a statement was made on the faith of a com- 
 promise is one for the jury ; ^ and it has been held that the 
 privilege may be lost if the real motive is not to " buy peace." 
 Even where such admissions of liability are not expressly con- 
 ditioned as being without "prejudice," and the like, they are 
 inadmissible if made as a waiver of possible rights for the sake 
 of peace.' The privilege attaches equally to the answer which 
 is made to such offer, and extends to all the subsequent com- 
 munications which appear to be made in continuation of it 
 
 • Gommersall v. Crew, 31 N. T. Lincoln, 4 Gray, 563 ; Cl.app v. Fos- 
 
 State Rep. 555 ; Chaffee v. Mackenzie, ter, 34 Vt 580 ; Molyneaux v. Collier, 
 
 43 La. Ann. 1063 ; Gries v. Blackman, 13 Ga. 406 ; State v. Bruce, 33 La Ann. 
 
 30 Mo. App. 3 ; Chiokering v. Brooks, 186 ; Ashlock v. Linder, 50 III 169 ; 
 
 61 Vt 554. Board of Commissioners v. Verbarg, 
 
 estate V. Lavin, 80 Iowa, 555; Pat- 63 Ind. 107; Daniels v. Woonsocket, 
 
 rick V. Crow, 15 Colo. 543 ; Montgom- 11 E. L 4 ; Pirie v. Wyld, 11 Out. 
 
 ery v. Allen, 84 Mich. 656 ; Smith v. Rep. 433. 
 
 Satterlee, 130 N. Y. 677, 41 N. Y. State « Montgomery v. Allen, 84 Mich. 
 
 Rep. 711 ; Davey v. Lohrmann, 39 656 ; Smith v. Shell, 83 Mo. 315 ; Kier- 
 
 N. Y. State Rep. 207, 14 N. Y. Supp. stead v. Brown, 33 Neb. 595 ; Smith 
 
 933. V. Satterlee, 130 N. Y. 677; Home 
 
 'Olsen V. Peterson, 33 Neb. 358. Ins. Co. v. Baltimore, etc. Co., 93 U. S. 
 
 <DenverT. &G. R Co. v. De Graff, 537, 648; Perkins v. Concord R R 
 
 2 Colo. App. 43. Co., 44 N. H. 333 ; Draper v. Hatfield, 
 
 » Wright V. Gillespie, 43 Mo. App. 124 Mass. 53 ; Wrege v. Westcott, 30 
 
 244. N. J. L. 313 ; Arthur v. James, 38 Pa. 
 
 « Omnium Securities Co. v. Richard- St. 336 ; Barker v. Bushnell, 75 111. 
 
 son, 7 Ont Rep. 183. 230; Richards v. Noyes, 44 Wia 609; 
 
 'Hall V. Brown, 58 N. H. 93; 1 Reynolds v. Manning, 16 Md. 515, 
 
 Greenl. Ev., § 192 ; Harrington v. 526 ; Webber v. Dunn, 71 Me. 331, 340. 
 9 
 
130 EDLES OF EVIDENCE. 
 
 and in Feliance on the protection tlius established.^ The rijle 
 applies equally whether the communications be written or \>y 
 ■word of mouth.2 The only qualification of the rule is that 
 sometimes the parties may be entitled to refer generally to the 
 lact that some negotiations have passed, in order, for instance, 
 to explain the lapse of time.' Moreover, if a party during the 
 course of negotiations for a compromise makes admissions, nqt 
 with a view to such compromise, but wholly independent,* and 
 still more if he commits acts which are of themselves a ground 
 of legal liability (such as, for instance, threats to infringe a pat- 
 ent right), such acts and admissions are in nowise privileged.* 
 
 There has been some difference of judicial opinion as to 
 whether admissions, whether express, or implied from the offer 
 of concessions, are privileged by the mere fact that they have 
 been made in the course of negotiations for a settlement.^ The 
 true view seems to be that they are not privileged unless it 
 can be implied from the language or conduct of the parties 
 that they were not intended to be disclosed, but that this in- 
 ference will frequently be drawn almost as a matter of course 
 |rom the nature and circumstances of the case. 
 
 § 38. Parties to negotiable instruments, — It has been mi 
 that a party to negotiable paper, who has given a currency to 
 it by passing it, is not a competent witness to show its inva- 
 lidity,'' and that a party to negotiable paper which has been 
 negotiated is not a competent witness to invalidate it.* It 
 Ijas also been said that the indorser of a bill of exchange or 
 promissory i{ote is incompetent to testify to any fact which 
 would impeach the genuineness of the indorsement.' 
 
 » Walker v. Wilsher, 23 Q. B, D. 7 Houghton v. Paige, 1 N. 5. 6A; 
 
 335; Ex parte Harris, Re Harris, 44 Coleman v. Wise, 2 John. 165. 
 
 L.J. (Bkcy.) 83. ei Greenl. Ev. 883-85; Walters v. 
 
 2 Walker v. Wilsher, 23 Q. B. D. 335. Weatherel, 43 111. 389 ; Bank of Me- 
 
 8 Walker v. Wilsher, 23 Q. B. D. tropolis v. Jones, 8 Pet 13 ; Bank p^f 
 
 335; Jones v. Foxall, 15 Beav. 390, United States v. Dunn, 6 Pet. 51; 
 
 396, 397. Henderson v. Anderson, 3 How. (Ut S.) 
 
 ^Waldridge v. Kennison, 1 Esp. 73; Cook v. Knock, 27 111. 236; Wi4- 
 
 142 ; Turner v. Railton, id. 474. ters v. Smith, 23 111. 343. 
 
 s Kurtz & Co. V. Spence, 57 L, J. Ch. » Walters v. Weatherel, 43 111. 339; 
 
 238. Bank of Metropolis v. Jones, 8 Pet. 
 
 6 Jardine v. Sheridan, 2 C. & K. 24 ; 12-16 ; Bank of United States v. Dunn, 
 
 Nicholson V. Smith, 3 St 128; Wal- 6 Pet 51-59; Henderson v. Anderson, 
 
 lace V. Small, M. &M. 446; Turnery. 3 How. 73; Cook v. Knook,37I11.236; 
 
 Riiilton, 1 Esp. 474; Gregory v. How- ^itlters v. Smith, 23 111. 343; Dewey 
 
 ard, 3 Esp. 113. v. Warrenier, 71 111. 198. 
 
CHAPTEE V. 
 
 COMPETENCY OF WITNESSES. 
 
 §1. 
 
 9. 
 
 10. 
 11. 
 18. 
 13. 
 
 14. 
 
 15. 
 16. 
 
 Preliminary examination as to 
 competency of witness. 
 
 Competency of witness — In gen- 
 eral. 
 
 Religious belief. 
 
 Illustrations. 
 
 Infants. 
 
 Illustrations. 
 
 Idiots and lunatics. 
 
 Illustrations. 
 
 Persons convicted of crime. 
 
 How incompetency removed. 
 
 Husband and wife. 
 
 Extent of the rule. 
 
 "When relation begins and termi- 
 nates. 
 
 Exception to rule of exclusion in 
 criminal cases. 
 
 Access. 
 
 Accomplice. 
 
 § 17. Corroboration of accomplice. 
 
 18. Who are not accomplices. 
 
 EFFECT OF DEATH OR DISABILITY OF 
 OTHER PERSONS. 
 
 19. In general, 
 
 20. What conversations and trans- 
 
 actions come within the rule. 
 
 Interested third persons. 
 
 Assignors, grantors, etc., of par- 
 ties as witnesses. 
 
 Heirs, legatees, distributees, etc., 
 as witnesses. 
 24. Agents and representatives as 
 witnesses. 
 
 Effect of prior testimony on 
 other sida 
 
 What is not a personal trans- 
 action. 
 27. Illustrations. 
 
 21. 
 22. 
 
 23. 
 
 25. 
 
 26. 
 
 § 1. Preliminary examination as to competency of wit' 
 ness. — Previous to a witness being sworn, it is the right of the 
 counsel for the party against whom he is called to have him 
 examined on the voir dire, in order to ascertain whether he is 
 competent to testify.' This well-settled rule has not been de- 
 parted from. At present, if it appear at any time during the 
 examination of the witness that he is incompetent, the objec- 
 tion may be taken and the testimony may be expunged. But 
 there are still cases in which it may be expedient for a party 
 to put an adverse witness on the voir dire. For instance, if 
 the interest arises upon written documents with which the wit- 
 ness is cognizant, but which are not present, their contents may 
 be sho'wn by parol upon the preliminary examination, but not 
 after the witness has been sworn in chief. It seems that a 
 party objecting to the competency of a witness has a right to 
 1 Stephens, N. P. 1731, 1769, 
 
132 EULES OF EVIDENCE. 
 
 show such incompetency by other evidence before the witness 
 can be sworn in chief.' But counsel is not bound to interrupt 
 his adversary's direct examination of a witness on a material 
 point because of mere suspicion that the witness may be incom- 
 petent to testify to it. He may await his opportunity to bring 
 out on cross-examination the fact on which the question of 
 competency depends, and, if it thereby appears that the witness 
 is Incompetent, may then move to have the incompetent testi- 
 mony expunged.^ In case of a conflict between the state and 
 federal law as to competency of witnesses, the latter must 
 govern in a federal court. Thus, where a cause has been re- 
 moved from a state to a federal court, the fact that, while pend- 
 ing in the state court, a witness was held by that court to be 
 incompetent under the state law, does not affect his competency 
 to testify in the cause after its removal to the federal court.' 
 So a witness, competent to testify as to some matters and not 
 as to others, is not to be excluded, but improper evidence only 
 is to be excluded by objection to improper questions when 
 asked.^ Although the witness should have been examined on 
 the voir dire before the commencement of his evidence and 
 held competent, yet if it is subsequently discovered that he is 
 in fact incompetent, his evidence will be struck out.' 
 
 § 3. Competency of witness — In general. — A witness is 
 incompetent if, in the opinion of the court, he is prevented by 
 extreme youth, disease afifecting his mind, or any other cause 
 of the same kind, from recollecting the matter on which he is 
 to testify, from understanding the questions put to him, from 
 giving rational answers to those questions, or from knowing 
 that he ought to speak the truth.' A witness unable to speak 
 or hear is not incompetent, but he may give his evidence by 
 writing or by signs., or in any other manner in which he can 
 make it intelligible ; but such writing must be and such signs 
 made in open court. Evidence so given is deemed to be oral 
 evidence.' 
 
 Witnesses not believing in the existence of a God are, at 
 
 1 Seeley v. Engell, 13 N. T. 542. « 1 Greenl. Ev., § 368 ; 1 Wh'art Ev., 
 
 2Loveridge V. Hill, 96 N. Y. 233. §398. 
 
 3 King V. Worthington, 104 U. S. 44. ' Stephen's Dig. of Law of Ev., art 
 
 * Beal V. Finch, 11 N. Y. 128. 107 ; Snyder v. Nations, 5 Blackf. 295 ; 
 
 6E. V. Whitehead, L, R. 1 C. C. E. 33. State v. Wolfe, 8 Conn. 93. 
 
COMPETENCY OF WITNESSES. 133 
 
 common law, incompetent to testify ; ^ but this rule has been 
 modified by statute in the several states. So, at common 
 law, witnesses convicted of crimes rendering them infamous 
 are excluded from giving testimony in the courts of the state 
 or county in which they were convicted, unless the disability 
 is removed by a reversal of the judgment or by a pardon. In 
 most of the states the disqualification of infamy has been re- 
 moved by constitutional provision or by statute.^ At common 
 law all persons who were parties to the record or had a pecun- 
 iary interest in the result of the suit were incompetent to tes- 
 tify. But this disability has been removed by statute in all of 
 the states of the Union excepting Delaware, and all the terri- 
 tories excepting New Mexico. So, by the Eevised' Statutes of 
 the United States, section 858, it is provided that in the courts 
 of the United States no witness shall be excluded " in any civil 
 action because he is a party to or interested in the issue tried ; 
 provided, that in actions by or against executors, administra- 
 tors or guardians, in which judgments may be rendered for or 
 against them, neither party shall be allowed to testify against 
 the others as to any transaction with or statement by testator 
 or ward, unless called to testify thereto by the opposite party, 
 or required to testify thereto by the court."' 
 
 By the common law husband and wife are incompetent to 
 testify for or against each other, except in cases of personal 
 injuries committed by one against the other .^ To this rule the 
 act of congress making parties to suits competent witnesses 
 has no application.^ And in criminal cases the accused person 
 and his or her wife or husband, and every person and the wife 
 or husband of every person jointly indicted with him, is in- 
 competent to testify, provided that in any criminal proceeding 
 against a husband or wife for any bodily injury or violence in- 
 flicted upon his or her wife or husband, such wife or husband 
 is competent to testify .° The above rule of the common law 
 has been materially modified by statute in the several states 
 and territories. Generally under these statutes husband and 
 
 1 0'Michund v. Barker, 1 Smith's ' Texas v. Chiles, 21 Wall. 488 ; Rail- 
 Lead.' Cas. 536, 545. road Co. v. Pollard, 33 id. 341. 
 
 2 1 Greenl. Ev., § 373 ; 1 Whart Ev., * 1 Greenl. Ev., § 843. 
 § 397. 5 Lucas v. Brooks, 18 Wall. 486. 
 
 6 Reese v. Wood, 5 B. & S. 364. 
 
134 EULES OF EVIDENCE. 
 
 wife are not compellable to testify against each other in crim- 
 inal proceedings, and in some of them are not competent wit- 
 nesses in actions for divorce. 
 
 § 3. Eeligious Ibelief.— It is an established rule that all 
 witnesses who are examined upon a trial, civil or criminal, 
 must give their evidence under the sanction of an oath, or 
 some affirmation substituted in lieu thereof. If any person 
 called as a witness refuses or is unwilling to be sworn from 
 alleged conscientious motives, he will be allowed to make 
 solemn religious affirmation, involving like appeal to God in 
 truth of his testimony, in any mode which he shall declare to 
 be binding on his conscience. All witnesses are to be sworn 
 according to the peculiar ceremonies of their own religion, or 
 in such manner as they may deem binding on their own con- 
 sciences ; and if the witness be not of the Christian religion, 
 the court will inquire as to the form in which an oath is ad- 
 ministered in his own country or among those of his own 
 faith, and will impose it in that form. One who believes in 
 the existence of God, and that an oath is binding on his con- 
 science, is a competent witness, though he does not beheve in 
 a future state of rewards and punishments.^ This belief in a 
 future state goes only to credit.^ But it has been held that 
 persons who do not believe in the obligations of an oath, or 
 the future state of rewards and punishments, are incompetent 
 witnesses.' 
 
 §4. Illustrations. — A witness will be presumed compe- 
 tent until his incompetency is specifically pointed out by the 
 party objecting to him.* Eeligious opinion or belief or want 
 of the same is not a test or qualification of the competency 
 of citizens to testify as witnesses in courts of justice under a 
 statute which provides that " no person shall be denied any 
 civil or political right, privilege or capacity on account of his 
 
 1 Brock V. Milligan, 10 Ohio, 121. ^Hunscum v. Hunscum, 15 Mass. 
 
 But see Central M. Tr. Co. v. Rocka- 184. 
 
 fellow, 17 111. 541 ; Blair v. Seaver, 2 3 Curtiss v. Strong, 4 Day's Cases, 
 
 Casey, 274 ; Bartholemy v. People, 2 51 ; Wakefield v. Rose, 5 Mason, 16 ; 
 
 Hill,"249 ; Smith v. Coffin, 18 Me. 157 ; Butts v. Stoartwood,, 2 Cow. 431, 573, 
 
 Cubbison v. McCurry, 2 Watts & nota 
 
 Serg. 263; Arnold v. Arnold, 13 Vern. * Knight v. Jackson,, 36 S. C. 10; 
 
 362; 1 Greenl. Ev., § 871. Ferine v. Grand Lodge A. O. U. W., 
 
 48 Minn. 82, 
 
.COMPETENCY OF A)fITNESSES. 135 
 
 religious opinions." ' Thus, a Chinaman who believes in the 
 Chinese religion, but takes the ordinary form of oath without 
 objection, and testifies that he regards it as binding, is, so far 
 as concerns religious belief, a competent witness.^ Eeligious 
 belief is presumed to continue until the contrary is shown, 
 where such a belief has once been shown to exist.' It has 
 been held that the want of religious belief must be established 
 by other means than the examination of the witness upon the 
 stand. If he is to be set aside for want of such religious be- 
 lief, the fact is to be shown by other witnesses, and by evidence 
 of his previously expressed opinions voluntarily made to oth- 
 ers.* It has been said that where the competency of a witness 
 has been objected to on the ground of the want of his religious 
 belief, and proof of such non-belief has been adduced, the testis 
 raony of the witness that he has undergone a change of heart 
 is not sufficient, but evidence of such fact in rebuttal must be 
 adduced from other parties than himself.^ 
 
 § 6. Infants. — No particular age is required in practice td 
 render the evidence of a child admissible; the competency of 
 children is now regulated, not by their age, but by the degree 
 of understanding which they appear to possess. A child of 
 any age, if capable of distinguishing between good and evily 
 may be examined upon oath,' and a child of whatever age can- 
 not be examined unless sworn. The admissibility of children 
 depends not merely upon their possessing a competent degree 
 of understanding, but also in part upon their having received 
 a certain share of religious instruction. A child whose in- 
 tellect appears to be in other respects sufficient to enable it to 
 give useful evidence may, from defect of religious instruction, 
 be wholly unable to give any account of the nature of an oath, 
 or of the consequences of falsehood. The court must be sat- 
 isfied that the child feels the binding obligation of an oath 
 from the general course of his religious education. The effect 
 
 1 Hronek v. People, 13 Crim. Law 653 ; Bartholemy v. People, 2 Hill, 
 
 Mag. 1033. 348. 
 
 ^ Territory v. Yee Shun, S N. M. 83. » State v. Townsend, 3 Harr. (Del.) 
 
 'State V. Stinson, 17 Me. 154. 543 ; State v. Hopper, 15 Vt. 535 ; At- 
 
 *Com. V. Smith, 3 Gray (Mass.), wood v. Wilton, 7 Conn. 66. 
 
 516; 1 Greenl. Ev. (14th ed.), §370; 6 Miller v. United States, 159 U. S. 
 
 Jackson v. Gridley, 18 Johns. 98 ; An- 533 ; Cora. v. Robinson, 165 Mass. 426 ; 
 
 derson v. Newberry, 3 Heisk. (Tenn.) State v. Ghadotle, 17 Monfc 315; 
 
136 RULES OF EVIDENCE. 
 
 of the oath upon the conscience of the child should arise from 
 religious feelings of a permanent nature, and not merely from 
 instructions confined to the natui-e of an oath, recently com- 
 municated to him for the purpose of the trial. But courts 
 have held that an infant cannot be rejected if he has knowl- 
 edge of the nature of an oath, whether the instruction was in- 
 tended to excite permanent feelings or merely to secure the 
 temporary purpose of enabling him to swear to the facts in a 
 particular case, provided that at the time when he was called 
 upon to give his evidence he was really aware of the solemn 
 responsibility which devolved upon him for speaking the truth; 
 A child of any age capable of distinguishing between good 
 and evil may be examined on oath ; and the credit due to his 
 statements is to be submitted to the consideration of the jury, 
 who should regard the age, the understanding, and the sense 
 of accountability for moral conduct, in coming to their con- 
 clusion.' Where a case depends upon the testimony of an in- 
 fant, it is for the court to examine him as to his competency 
 to take an oath, and, if found incompetent for want of proper 
 instruction, the court will, in its discretion, put ofif the trial in 
 order that the party may in the meantime receive such in- 
 struction as will qualify him to take an oath.^ Such instruc- 
 tions must take place in public in the presence of both parties 
 or their counsel, although such parties or counsel are not al- 
 lowed to interfere with such instructions.' The inquiry is 
 commonly confined to the ascertaining of the fact whether a 
 child has a conception of divine punishment being a conse- 
 quence of falsehood ; it seldom extends as far as to ascertain 
 the child's notion of an oath, and scarely ever relates to the 
 legal punishment of perjury.* 
 
 §6. Illustrations. — Persons who have no comprehension 
 of the nature and obligation of an oath, and are incapable of 
 appreciating their responsibility for its violation, are incom- 
 petent as witnesses, without regard to the cause from which 
 the defect had arisen, and without reference to the age of the 
 
 1 Washburn v. People, 10 Mich. 372 ; Ev. (14th ed.), § 367 ; State v. Ritchie, 
 State V. Whittier, 21 Me. 341. 28 La. Ann. 327; Jones v. People, 6 
 
 2 1 Stark. Ev. 94. Park. (N. Y.) 126. 
 
 3 State V. ScanloD, 58 Me. 206 ; Si- •* 1 Fell. Ev. 6. 
 rnons v. State, 30 Ind. 90 ; 1 Greenl. 
 
COMPETENCY OF WITNESSES. 137 
 
 witness.' Thus, a deaf and dumb child about nine years old, 
 wholly uneducated in the deaf and dumb language, and who 
 cannot be made to understand such questions as might be put 
 to him touching the transaction, except to a limited extent, 
 by signs and gestures, and who can only give by signs account 
 of what he saw, is not a competent witness in a capital case, 
 although he was the only eye-witness of the transaction;^ 
 and a witness fourteen years old who states that he knows it 
 is wrong to tell a lie, but that he did not know that he would 
 be punished for it, is incompetent. So a child of tender years 
 is not a competent witness in a criminal prosecution, where it 
 has not the slightest conception of any future, much less future 
 punishment for perjury ;' but there is no precise or fixed rule 
 as to the time within which infants are excluded from giving 
 evidence, but their admissibility depends upon the sense and 
 reason they entertain of the danger and impiety of falsehood, 
 which is to be collected from their answers to questions pro- 
 pounded to them by the court.* Thus, the capacity and quali- 
 fication of a witness only nine years old, who states that he 
 does not -know the nature of an oath, but knows that people 
 are sworn to make them tell the truth, and that he will tell 
 the truth, is a matter for the determination of the trial judge.' 
 The admission of testimony of a witness twelve years old who 
 appears to have the ordinary understanding and intelligence 
 of boys of that age, and who, although not comprehending 
 the questions in the English language, gives satisfactory an- 
 swers through an interpreter, is not error." 
 
 § 7. Lunatics and idiots. — Persoias not possessing the use 
 of their understanding, as idiots and lunatics, if they are 
 either continually in that condition or subject to such a fre- 
 quent recurrence of it as to render it unsafe to trust their 
 testimony, are incompetent witnesses. An idiot is a person 
 who has been non compos mentis from his birth, and who has 
 never any lucid intervals. A lunatic is a person who enjoys 
 intervals of sound mind, and may be admitted as a witness 
 m lucidis intervalUs, He must of course have been in pos- 
 session of his intellect at the time of the event to which he 
 
 1 McKelton v. State, 88 Ala 181. < McGuff v. State, 88 Ala. 147. 
 
 2 Territory v. Duran, 3 N. M. 134. » State v. Doyle, 107 Mo. 36. 
 
 5 Johnson v. State, 76 Ga. 76. « State v. Severson, 78 Iowa, 653. 
 
138 EUX.ES OF EVIDENCE. 
 
 testifies as well as at the time of examination ; and it ought 
 to appear that no serious fit of insanity has intervened so as 
 to cloud his recollection and cause him to mistake the illusion 
 of imagination for the events he has witnessed. With regard 
 to those persons who are afflicted with monomania, or an 
 aberration of mind on one particular subject, not touching 
 the matter in question, and whose judgment in other respects 
 is correct, the safest rule appears to be to exclude their testi- 
 mony, it being impossible to calculate with accuracy the ex- 
 tent and influence of such a state of mind. "Where a lunatic 
 is tendered as a witness, it is for the judge, assisted by med- 
 ical testimony, to determine whether he shall be admitted; 
 and if, upon his examination upon the voir dire, he exhibits 
 a knowledge of the religious nature of an oath, and appears 
 capable of giving an account of transactions of which he has 
 been an eye-witness, it is a ground for his admissioii. It is 
 for the jury to judge of the credit that is to be given to his 
 testimony.^ The question whether a witness, sane at the time 
 he testifies, was insane at the time of the transaction With re- 
 gard to which he testifies, goes to the credibility of his testi- 
 mony, and not to his competency, and is therefore a subject 
 for evidence to the jury, to be adduced by the opposing party 
 with his other evidence.^ It is no objection either to the 
 competency or credibility of a witness that he is subject to 
 fits of mental derangement, if it appears that he is sane at 
 the time he is offered.' A person in a state of intoxication is 
 incompetent.* An objection to the competency of a witness 
 must be made as soon as it is discovered, when the party has 
 an opportunity of doing it; otherwise the party will be con- 
 sidered as having waived the objection. The most convenient 
 time to object is before the witness is sworn. It is said that a 
 witness who has been sworn is presumed to be competent to 
 testify ; and a party having knowledge of his incompetency 
 cannot lie quietly by and allow him to testify and raise his ob- 
 jections when it appears that the testimony is no longer bene- 
 ficial to him.' It is different, however, where the party objecting 
 
 1 Livingston v. Kiersted, 10 Johns. * Gebhart v. Skinner, 15 Serg. & 
 
 362. Eawie, 235. 
 
 2Holcomb V. Holcomb, 28 Conn. ^Hoyt v. Hoyt, 112N. Y. 493; CfOss 
 
 177. V. Smith, 85 Hun, 49. 
 
 3 Campbell v. State, 23 Ala. 44. 
 
COMPETENCY OF WITNESSES. 139 
 
 did not know of the incompetency prior to the time of making 
 his objection.' Where the objection has once been made, it need 
 not be repeated when subsequent testimony of the same class 
 is offered by the same witness.^ The question of competency is 
 to be determined by the court before whom the trial is had, 
 after a preliminary examination. Where an insane person is 
 offered as a witness, the person offering his testimony has the 
 burden of showing to the court that the mental condition of 
 the witness is such that he may be said to have a lucid interval 
 at the time.' In all such cases the credibility of such witness 
 is a question for the jury.* TJnder some circumstances the testi- 
 mony of a monomaniac is received.' Where an inquisition of 
 lunacy has been found against such witness, the party offering 
 the witness must show his present capacity,^ and in ail cases 
 the credibility of the witness may be shown by evidence that 
 he had exhibited signs of mental disease or aberration of mind.'' 
 
 § 8. Illustrations.— A witness who has been adjudged in- 
 sane is incompetent, and it makes no difference from what 
 cause this defect of understanding may have arisen ; nor whether 
 it be temporary and curable, or permanent; whether the party 
 be hopelessly an idiot, or maniac, or only occasionally insane, 
 as a lunatic, or be intoxicated ; or whether the defect arises 
 from mere immaturity of intellect.' While the deficiency of 
 understanding exists, be the cause of what nature soever, the 
 person is not admissible to be sworn as a witness. But if the 
 cause be temporary, and a lucid interval should occur, or a cure 
 be effected, the competency is also restored.' 
 
 § 9. Persons convicted of crime. — In some states and in 
 the federal courts persons who have been convicted of certain 
 heinous crimes are held to be incompetent to testify as wit- 
 nesses either in civil or criminal cases. The basis of the rule 
 
 ' Shuitlefl V. Willard, 19 Pick. (Mass.), 64 ; Holcomb v. Holcomb, 28 
 
 (Mass.) 203 ; State v. Dammeray, 48 Conn. 181 ; Rex v. Hill, Cox, C. C. 259. 
 
 Me. 327. 6 Kendall v. May, 10 Allen (Mass.), 
 
 2 Carlson v. Winterson, 147 Mass. 63 ; Van Deusen v. Sweet, 51 N. Y. 
 652. 378 ; Hoyt, etc. v. Adee, 3 Lans. (N. Y.) 
 
 3 Holcomb V. Holcomb, 38 Conn. 173. 
 
 177 ; Campbell v. State, 33 Ala. 44 ^ Fairchild v. Basoomb, 35 Vt 398 ; 
 
 * Livingston v. Kiersted, 10 Johns. State v. Kelley, 57 N. H. 549. 
 
 363. 8 Huling v. Huling, 33 111. App. 519. 
 
 5 Coleman v. Com., 25 Gratt. (Va.) 9 Lopez v. State, 30 Tex. 487. 
 865; Com. v. Reynolds, 10 Allen. 
 
140 EULES OF EVIDENCE. 
 
 seems to be, that such persons are morally too corrupt to be 
 trusted to testify. The party, however, must have been 
 legally adjudged guilty of the crime ; the record, therefore, is 
 required as the sole evidence of his guilt, no other proof beinff 
 admitted of the crime. But the difficulty lies in the specifica- 
 tion of the crimes which render the perpetrator thus infamous. 
 The usual and more general enumeration is, treason, felony, 
 and. the crimen falsi} But the meaning of the term crimen 
 falsi, in our law, is nowhere laid down with precision. A 
 conviction and sentence in a state court can have no effect, by 
 way of penalty or of personal disability or disqualification, 
 beyond the limits of the state in which the judgment is ren- 
 dered, unless the statute of another state gives such effect to 
 them.^ An act of congress making a defendant charged with 
 crime a competent witness at his own request, but not other- 
 wise, does not confer any peculiar exemption, and does not 
 render competent a defendant who has lost the privilege of 
 testifying by the commission of an infamous crime.' 
 
 In some states a person convicted of perjury is not thereby 
 rendered incompetent.* Where a person is convicted in an- 
 other state, the conviction may be proved in the same manner 
 as though the conviction had been in the state where the trial 
 was had.^ Where proof of such conviction is had, the credi- 
 bility of the witness is still matter for the jury.^ 
 
 § 10. How incompetency removed. — The disability arising 
 from infamy may, in general, be removed in two modes: first, 
 by reversal of the judgment of conviction of the crime. The' 
 reversal of the judgment must be shown by the production of 
 the record of reversal, or by a duly certified copy thereof. 
 The disability is also removed by a full and general pardon.' 
 Such pardon must be proved by the letter of pardon under 
 the seal of the state. Thus, a pardon by the president of one 
 convicted in the United States district court of larceny, and 
 
 1 1 Phil. Ev. 18 ; 1 Stark. Ev. 94. « Johnson v. State, 48 Ga. 116 ; Sims 
 
 2 Logan V. United States, 144 U. S. v. Sims, 75 N. Y. 466; Donohue v. 
 263. People, 66 N. J. L. 208 ; Glenn v. Com., 
 
 3 United States v. HoUis, 43 Fed. 42 Ind. 60 ; Com. v. Graham, 99 Mass. 
 Eep. 248. 431. 
 
 * People V. O'Neil, 109 N. Y. 266; « People v. Cbapleau, 121 N. Y. 366. 
 Dunn V. People, 29 id. 529 ; People v. ' State v. Kirschner, 23 Mo. App. 
 McGloin, 91 id, 241. 349. 
 
OOMPETENOY OF WITNESSES. 141 
 
 sentenced to the penitentiary, restores his competency as a 
 witness.^ So a full pardon by a governor, granted to a con- 
 vict after he had served out his term of imprisonment, there- 
 fore takes away all disqualifications as a witness, and restores 
 his competency to testify to any facts within his knowledge, 
 even if they came to his knowledge before his disqualifications 
 had been removed by the pardon.^ 
 
 § 11. Husband and wife. — By the common law a husband 
 and wife cannot testify for or against each other except in 
 cases of violence of one upon the other, as hereinafter more 
 fully specified, and the same rule still prevails in the absence 
 of any statute changing it.' To this rule the act of congress 
 and the statutes of the several states making parties to suits 
 competent witnesses has no application.* In most of the 
 states, however, the disqualification has, to a greater or less 
 extent, been rfemoved by special statutes. Generally under 
 these statutes, husband and wife are not compellable to testify 
 against each other in criminal proceedings, and in some of 
 them are not allowed to testify to certain things in cases for 
 absolute divorce.' The New York statute provides that no 
 person shall be excluded from being a witness because he or 
 she is the husband or wife of a party, or of a person in whose 
 behalf the action or special proceeding is brought, prosecuted, 
 opposed or defended.* But a husband or a wife is not com- 
 petent to testify against the other upon the trial of an action, 
 or the hearing upon the merits of a special proceeding founded 
 upon an allegation of adultery, except to prove the marriage. 
 A husband or wife shall not be compelled or, without the con- 
 sent of the other if living, allowed to testify against the other 
 in a criminal action except when the crime charged was com- 
 n^itted on or against the other, or to disclose a confidential 
 communication made by one to the other during the marriage. 
 In an action for criminal conversation the plaintiff's wife is 
 not a competent witness for the plaintiff, but she is a com- 
 petent witness for the defendant, as to any matters in con- 
 
 iBoyd V. United States, 143 U. S. < Lucas v. Brooks, 18 Wall. 436. 
 
 450. 6 1 Greenl. Ev., §§ 254, 336 ; 1 Wliart. 
 
 2 Logan V, United States, 144 U. S. Ev., § 427. 
 
 263. 6 New York Code of Civil Proced- 
 
 s Owen V. State, 89 Tenn. 698. ure, § 838. 
 
142 EXILES OF EVIDENCE. 
 
 troversy ; except that sbe cannot, without plaintiif's consent, 
 disclose any confidential communication had or made between 
 herself and the plaintiff. A defendant in an action for absolute 
 divorce on the ground of adultery may disprove the allegation 
 of adultery, not merely by a simple denial, but by testifying 
 to any fact or circumstance within her knowledge competent 
 and material on the question as to whether the act as charged 
 was committed or not.^ It has also been held that a husband 
 or wife is not competent to testify in an action for divorce on 
 the ground of adultery to jurisdictional facts — such as res- 
 idence of the plaintiff at the time of the commission of the 
 offense and the commencement of the action — when these are 
 put in issue.^ A divorced wife is a competent witness, on the 
 trial of her husband for an attempt to poison her before they 
 were divorced, to testify that she saw him prepare the poison 
 which was offered her,' She is also competent, on the trial 
 of an indictment for conspiring to confine her in a hospital 
 for the insane, to testify to any fact in regard to the matter.* 
 But the wife is incompetent to prove her husband's fraud, evm 
 to corroborate his admissions, or as to any fact which tends 
 to criminate her husband.' And a plaintiff suing for the de- 
 bauching of his wife is not a competent witness to prove her 
 adultery with defendant; and so a wife is not a competent 
 witness for her husband in an action brought by him for her 
 seduction.' Business transactions between them are not con- 
 fidential communications within the policy of the law.' Other 
 wise under the Massachusetts statute.' Written as well as 
 verbal communications, if confidential, are within the policy 
 of the law. "When either husband or wife is strictly incoirei- 
 petent as a witness, either generally or as to a particular fact, 
 evidence of his or her declaration of the fact is incompetent 
 except (1) where the making of such declarations is a material 
 fact ; (2) when the declaration is part of the res gestce involved in 
 
 1 Stevens v. Stevens, 54 Hud, 490, «Com. v. Spink, 137 Pa. St 255. 
 
 37 N. Y. State Rep. 603, 8 N. Y. Supp. 6 Cornelius v. Hanbay, 150 Pa. St 
 
 47; Steffins v. Stefflns, 11 id. 434, 33 359. 
 
 N. Y. State Rep. 643. 6 Reynolds v. Schaflfer, 91 Mich. 494, 
 
 2 Dickinson v. Dickinson, 63 Hun, 30 Am. St Rep. 492. 
 
 576, 45 N. Y. State Rep. 333, 18 N. Y. ' Scliaflner v. Reuter, 37 Barb. 44. 
 Supp. 485. 8 Drew v. Tarbell, 117 Mass. 90. 
 
 3 Com. X Sapp, 90 Ky. 580. 
 
COMPETENCY OF WITlSrESSES. 143 
 
 an act properly in evidence ; (3) when it is merely matter of 
 inducement or introduction to the language or conduct of 
 another person which the declaration offered called forth; 
 (4) when it is one which the declarant made, when authorized, 
 expressly or impliedly, tp speak as the other's agent, or as one 
 to whom the other referred a third person.^ 
 
 §13. Extent of rule. — The wife is rot a competent wit- 
 ness against a co-defendant tried with her husband, if the 
 testimony concern the husband, though it be not directly 
 against him ; ^ nor is she for a co-defendant if her testimony 
 would tend directly to her husband's conviction or acquittal; 
 nor where the interests of all the defendants are inseparable.* 
 Yet where the grounds of defense are several and distinct, and 
 in no manner depend on each other, the wife of one defend- 
 ant may testify as a witness for another.* But where the wife 
 of one defendant is called to prove an alibi in favor of another 
 jointly indicted, she is incompetent, if her evidence goes to 
 weaken that of the witnesses of her husband. 
 
 § 13. When relation begins and terminates.^ It makes 
 no difference at what time the relation of husband and wife 
 commenced ; neither is it material that this relation no longer 
 exists ; and whatever has come to the knowledge of either by 
 means of the hallowed confidence which that relation inspires 
 cannot be afterwards divulged in testimony, even though the 
 other party be no longer living.^ This rule of protection ex- 
 tends only to lawful marriages. It seems, however, that a 
 reputed or supposed wife may be examined until a marriage 
 in fact is proved. Whether the rule may be relaxed so as to 
 admit the wife to testify against the husband, by his consent, 
 the authorities are not agreed. Whether where the husband 
 and wife are jointly indicted for a joint offense, or are other- 
 wise joint parties, their declarations are mutually receivable 
 against each other is still questioned ; the general rule as to 
 persons jointly concerned being in favor of their admissibility, 
 and the policy of the law of husband and wife being against it. 
 
 1 Lay Grae v. Peterson, 3 Sandf. ' Com. v. Robinson, 1 Gray, 555. 
 338 ; Karney v. Paisley, 13 Iowa, 89 ; n Phil. Ev. 75. 
 
 Dawson v. Hall, 3 Mich. 390. ostein v. Bowman, 13 Pet. 209. 
 
 2 Rex V. Hood, 1 Moody's Cr. Gas, 
 S81. 
 
14i EPLE3 OF EVIDENCE. 
 
 § 14:. Exception to rule of exclusion in criminal cases.— 
 
 There are exceptions to the rule excluding the husband and 
 wife as witnesses in criminal cases and to the exclusion of their 
 confidential communications. These, exceptions are allowed 
 from the necessity of the case — not a general necessity, as 
 where no other witness can be had, but a particular necessity; 
 as where, for instance, the one would otherwise be exposed, 
 without remedy, to personal injury .^ Thus, a woman is a com- 
 petent witness against a man indicted for forcible abduction 
 and marriage if the force were continuing upon her until the 
 marriage.^ So she is a competent witness against him for any 
 crime committed by him upon her ; and in all cases of personal 
 injury committed by the husband or wife against" each other 
 the injured party is a competent witness against the other.' 
 Upon the same principle the dying- declarations of either are 
 admissible where the other party is charged with the murder 
 of the declarant.* 
 
 § 15. Access. — It is a rule of the common law, based on 
 public policy, that neither husband nor wife is compellable or 
 competent to give evidence ot their having or not having had 
 sexual connection with each other after the marriage at any 
 given time or at all ; that is, although they may give evidence 
 of the date of their marriage and of the date of the birth of 
 offspring of the wife, whether born before or after marriage, 
 they may not give evidence tending to show that a child born 
 of the wife during the marriage is not the legitimate child of 
 them both.' This rule, therefore, precludes them not only from 
 giving direct evidence of access or non-access, but also from 
 giving any evidence of circumstances from which the same is 
 intended to be inferred.' Nor does the fact that one of them 
 has died release the other from his or her incompetency to 
 give evidence of this description.' It has been held, however, 
 that evidence of declarations and conduct of the wife^ and her 
 alleged paramour ' are admissible on an issue as to the legiti- 
 macy of a child of the wife. 
 
 iBently v. Cooke, 3 Doug. 433. * People v. Green, 1 Denio, 614. 
 
 2 1 Euss. on Crimes, 573 ; Roscoe's ' Goodright v. Moss, 3 Cowp. 591. 
 
 Crira. Ev. 115 ; Hanselman v. Dovel, « R, v. Sourton, 5 A. & E. 180. 
 
 102 Mich. 505; Walker v. State, 34 'R v. Kea, 11 East, 133. 
 
 Fla. 167; Gill v. State, 59 Ark. 432; ^Aylesford Peerage, ll,App. Gas. 1. 
 
 Com. V. Hayden, 163 Mass. 453. sfiurnaby v. Bailie, 43 Ch. D. 283. 
 
 3 People V, Chegaray, 18 Wend. 643. 
 
COMPETENCY OF WITNESSES. 14:5 
 
 § 16. Accomplice. — Whilst in some jurisdictions an accom- 
 plice cannot be a witness unless the assent of the court is first 
 obtained and until he has first been acquitted of the crime at 
 issue/ the general rule is that such accomplice is competent, 
 either for or against the other defendant, where he is either 
 separately indicted or separatelj'- tried.^ And where such ac- 
 complice has full knowledge of his privilege to refuse to answer, 
 but notwithstanding he voluntarily gives incriminatory testi- 
 mony, he cannot, upon cross-examination, claim his privilege 
 before he has given all the facts relating to the matter testified 
 to by him.' Upon the cross-examination of such witness he 
 may be compelled to state his relation to the people and as to all 
 promises made to him b\' the prosecuting officers.^ By becom- 
 ing a witness for the state, an accomplice waives his privilege 
 on the ground that the answers might tend to criminate him.* 
 
 §17. Corroboration of accomplice. — In most jurisdictions 
 no conviction is allowed to take place upon the uncorroborated 
 testimony of an accomplice ; and such corroborating testimony 
 must tend to connect the accused with the commission of the 
 crime with which he stands charged.* It seems that this rule 
 does not apply when the alleged accomplice denies that he is 
 guilty of criminality." It is said that it only applies where the 
 witness goes upon the stand and acknowledges his guilt. The 
 testimony of one or more accomplices cannot corroborate each 
 other ; the testimony of each must be corroborated by other 
 evidence.' The corroboration should tend to show the ma- 
 terial facts necessary to establish the commission of the crime 
 
 1 Roscoe's Cr. Ev. (8th ed.), § 130 ; 5 jones v. State, 65 Miss. 179 ; Ham- 
 Meyera v. State, 3 Tex. Cr. App. 8; iltou v. People, 29 Mich. 174; Com. 
 Fitzgerald v. State, 14 Mo. 413. v. Price, 10 Gray (Mass.), 473. 
 
 2 Jeffries v. Com., 84 Ky. 237 ; State 6 People v. Evans, 40 N. Y. 1 ; State 
 V. Crowley, 33 La. Ann. 783; People v. Chyo Chiack, 93 Mo. 395; Com. v. 
 V. Costello, 1 Den. 83 ; State v. Dietz, Holmes, 127 Mass. 424 ; State v. Bet- 
 67 Iowa, 220; Lee v. State, 21 Ohio sail, 11 W. Va. 703; Carroll v. Com., 
 St. 157 ; Crass v. People, 49 111. 153 ; 84 Pa. St. 107 ; State v. Stebbins, 29 
 Parsons v. State, 43 Ga. 197 ; People Conn. 483 ; Lumpliin v. State, 68 Ala. 
 V. O'Neil, 109 N. Y. 251. 56 ; Childer v. State, 52 Ga. 106. 
 
 3 Foster V. People, 8 Am. L. Reg. 'Pollock v. Pollock, 71 N. Y. 137; 
 <N. S.) 494. People v. Ricker, 22 N. Y. State Rep. 
 
 4 People V. Langtry, 64 Ca). 256; 652. 
 
 Marler v. State, 57 Ala. 55 ; TuUis v. s United States v. Hinz, 35 Fed. Rep. 
 State, 35 Fed. Rep. 274 ; Allen v. State, 373 ; State v. Williams, 43 Conn. 261. 
 10 Ohio St. 287. 
 10 
 
14:6 EULES OF EVIDENCE. 
 
 and the identity of the person committing it.^ It is suffi- 
 cient if it tends to connect the defendant with the com- 
 mission of the crime ; and when it does, it is for the jury to- 
 determine whether the corroboration is sufRcient to satisfy 
 them of the defendant's guilt.^ A wife of an accomplice may 
 corroborate the testimony of her husband.' An accomplice 
 is one who knowingly, voluntarily, and with common intent 
 with the principal offender, unites with him in the commission 
 of a crime.* But in order to be such, his participation in the act 
 must be wilful and real.^ Thus, one in whose hands a knife 
 was place by a murderer after the murder, where he in no way 
 aided or abetted in the commission of the crime, is not an ac- 
 complice.^ The same rule applies to a female upon whom an 
 abortion is performed ; '' and in some jurisdictions the same 
 rule has been applied to an informer,' and to detectives or de- 
 coys.' But the rule seems to be different where the original 
 intent to commit the crime was induced by the complainant 
 or by other persons.'" 
 
 "When the only proof against a person charged with a crim- 
 inal offense is the evidence of an accomplice, uncorroborated 
 by such other evidence as tends to connect the defendant with 
 the commission of the crime, it is the duty of the judge to in- 
 struct the jury that they should acquit.'^ 
 
 § 18. Who are not accomplices. — A person who purchases 
 liquor of a person who has no license to sell is not an accora- 
 
 1 People V. Plath, 100 N. Y. 593. "• Saunders v. State, 30 Am. Rep. 
 
 2 People V. Wa.vman, 138 N. Y/585 ; 130 ; Dodge v. Brittain, Meigs (Teun.V 
 People V. Christian, 78 Hun, 38; 84; State v. Jansen, 33 Kan. 498; 
 Craft V. State, 3 Kan. 450; State v. Speiden v. State, 3 Tex. App. 156; 
 Welles. 9 Iowa, 583. Allen v. State, 40 Ala. 344; Johnson 
 
 3 People V. Everhardt, 104 N. Y. v. State, 3 Tex. App. 590; Saundera 
 591 ; State v. Moon, 35 Iowa, 128. v. People, 38 Mioh. 318; Commission- 
 
 * Whart. Cr. Ev., § 440. ers of Excise v. Backus, 39 How. Pr. 
 
 5 People V. Barrie, 49 Cal. 324 ; State (N. Y.) 39 ; United States v. Slinker, 
 
 V. McKean, 36 Iowa, 343 ; People v. 33 Fed. Rep. 691 ; United States v. 
 
 Noelke, 94 N. Y. 137. Moore, 10 id. 39. 
 
 ePeopIe v.. Ogle, 104N. Y. 511. "1 Greenl. Ev., § 380; People v, 
 
 ^People V. Bliven, 112 N. Y. 79; Mayhew, 150 N. Y. 346 ; State v. Eisen- 
 
 People V. Vedder, 98 id. 630. haus, 133 Mo. 146 ; United States v, 
 
 8 People V. Farrell, 30 Cal. 356 ; State Van Leaven, 65 Fed. Rep. 78 ; State v. 
 V. McKean, 36 Iowa, 343. Dawson, 134 Mo. 418 ; State v. Kent, 
 
 9 People V. Noelke, 94 N. Y. 178; 27 L. R. A. 686; Hey ward v. State, Oa 
 Campbell v. Com., C4 Pa. St. 87; Ga. 591. 
 
 Com. V. Cohen, 137 Mass. 282; Trust- 
 
 BPa Ptr- V Cl'MoUav IS Til 4(17 
 
COMPETENCY OF WITNESSES. 147 
 
 plice. He does not participate in the act declared by the 
 statute to be. an offense. An accomplice is a person involved 
 either directly or indirectly in the commission of the crime. 
 To render him such, he must in some manner aid or assist or 
 participate in the criminal act, and by that connection he be- 
 comes equally involved in guilt with the other party by reason 
 of the criminal transaction.' So a person who buys lottery 
 tickets for the purpose of proving the fact of their sale by the 
 defendant is not an accomplice.^ Indeed, it has become a 
 necessity for the suppression of crime to Vesort to this mode 
 of ascertaining whether a prohibited and criminal act may be 
 committed, the victims of a business which it distinguishes 
 failing in the moral courage to complain or to appear as wit- 
 nesses. Without its use many crimes would increase in num- 
 ber and magnitude, the law be openly violated, and the au- 
 thorities helpless from the absence of such proof as may be 
 required for a conviction. The utmost that can be said of the 
 person employed is that he is an informer, and leave to the 
 jury the consideration of his evidence as such.^ 
 
 EFFECT OF DEATH OE DISABILITY OF OTHEE PEESONS. 
 
 § 19. In general. — The general policy of the American 
 statutes is to restrain the admission of the testimony of a 
 party or an interested witness as against the estate of a de- 
 ceased person, lunatic or idiot, or the interest of one succeed- 
 ing to his right ; * and as to any personal transaction or com- 
 munication with the deceased person, idiot or lunatic, a party 
 to an action or proceeding cannot be examined in his own 
 behalf or interest, or in behalf of the party succeeding to his 
 title or interest, as against the representatives of a deceased 
 person, idiot or lunatic, or one deriving title from such deceased 
 person, idiot or lunatic, if he or his predecessor in interest is 
 at the time of the trial interested in the event of the action or 
 
 1 Com. V. Willard, 23 Pick. 476 ; 2 Reg. v. MuUins, 3 Cox's Crim. Cas. 
 
 Campbell v. Com., 84 Pa. St. 187; 536; People v. Farrell, 30 Cal. 316; 
 
 State V. McKean, 36 Iowa, 343 ; Wright v. State, 7 Tex. App. 574. 
 
 Trustees, etc. v. O'Mailey, 18 111. 407; 3 People v. Noeike, 39 Hun, 401. 
 
 Smith V. State, 37 Ala. (N. S.) 473 ; Peo- « Nowack v. Berger, 183 Mo. 24, 31 
 
 pie V. Farrell, 30 Cal. 316; People v. L. R A. 810; Wilcox v. Corwin, 117 
 
 Smith, 28 Hun, 026. N. Y. 500, 27 N. Y. State Rep. 836. 
 
148 EtlLES OF EVIDENCE. 
 
 proceeding, whether directly interested in the cause of .action 
 or proceeding, or whether liable to be legally affected by the 
 judgment;^ and as against such representative of a deceased 
 person, idiot or lunatic, no person through, from or under 
 whom such a party or interested person derives his title or in- 
 terest, by assignment or otherwise, can be examined in his own 
 behalf or interest, or in behalf of the party succeeding to his 
 title or interest, as to any personal transaction or comriiunica- 
 tion with such deceased person, idiot or lunatic.^ 
 
 Nobody would be safe in respect to his pecuniarj'- transac- 
 tions if legal documents found in his possession at the time of 
 his death, and endeavored to be enforced by his executors, 
 could be set aside or varied or altered by the parol evidence 
 of the person who bound himself.'' It would be easj^, of course, 
 for anybody who owed a testator a debt to say, "I met the 
 testator and gave him the money." * The -ends of justice and 
 the interest of mankind require that such evidence should 
 be wholly disregarded. To render a witness incompetent, as 
 a. person interested in the event of the action,, to testify to con- 
 versations with deceased persons, his interest must be imme- 
 diate and such as would render the record of the action an 
 instrument of evidence for or against him in another action.' 
 A witness is not incompetent to testify to a conversation re- 
 lating solely to the title to land with a decedent through whom 
 he derived his title, where the adverse part}', although claim- 
 ing title, never had any, and therefore did not derive title 
 through such decedent;" and a mother who has made a con- 
 tract by which she surrendered her child in consideration that 
 the other parties thereto should devise to it all their property 
 at their death is not incompetent, in an action by the latter's 
 heirs to recover the property from the child, in which the latter 
 asserts her equitable rights under such contract, to testify to 
 
 iCole V. Gardner, 67 Miss. 670; 5 Perme v. Grand Lodge A. 0. U. W., 
 
 Boyd T. Boyd, 163 111. 611. 48 Minn. 82, 
 
 2 Hard v. Ashley, 63 Hun, 634, 44 6Bk11 v. Howe, 65 Hun, 625, 47N.T. 
 N.Y. State Rep. 793; Miller V. Wilson, State Rep. 86, 19 N. Y. Supp. 569; 
 126 Mo. 48; Medlock v. Miller, 94 Ga. Jones v. Jones (1895), P. 201; Gunn 
 652; Green v. Green, 126 Mo. 35; v. Pettigrew, 98 Ga. 337; Irwin v. 
 Smith V. Rishel, 164 Pa. St. 181 ; Con- Noble, 164 Pa. St, 205; Phillips v, 
 nelly V. Keating, 102 Mioh. 1. Cooper, 93 Ga. 639 ; Thomas v. Miller, 
 
 3 Duffield V. Hue, 129 Pa. St. 94, 165 Pa, St 316. 
 < Carey v. Carey, 104 N. C. 171. 
 
COMPETENCY OF WITNESSES. lift 
 
 such contract.^ Unless specially provided by statute, the fact 
 that the husband of a devisee will be entitled as tenant by cur- 
 tesy in the devised premises in case of the death of his wife intes- 
 tate does not make him an interested party, incompetent as a 
 witness to testify in reference to transactions between himself 
 and the testator, on an issue as to whether the will was pro- 
 cured by fraud and undue influence.^ Upon the death of one 
 who promised, in consideration of a conveyance of certain 
 property to him, to pay the debt of another, the creditor is a 
 competent witness to prove the promise.' 
 
 Testimony of plaintiff in a suit against a physician as sur- 
 viving partner, in respect to the deceased partner's declara- 
 tions while engaged in the business of the firm, is not inadmis- 
 sible;* but where, after the institution of a suit on a joint and 
 several note, one of the defendants afterwards dies, the default- 
 ing defendant is incompetent to testify, in an action by the per- 
 sonal representatives, to facts proving the joint liability of the 
 deceased defendant and his duty to contribute.^ In McHugh 
 V. Doud' it is held that an administrator cannot waive the pro- 
 visions of the statute prohibiting the party from testifying, in 
 support of a claim against the estate, to facts equally within 
 the knowledge of the decedent ; and in A.chilles v. Achilles ^ it is 
 held that a widow suing the heirs of her deceased husband to set 
 aside an ante-nuptial agreement, and for partition and assign- 
 ment of dower, is an incompetent witness against the heirs. 
 
 § 20. What conversations and transactions come within 
 the rule. — The prohibition against a party testifying in ac- 
 tions or the hearing upon the merits of a special proceeding in 
 his own behalf, in actions by or against the representatives of 
 decedent's estate, does not apply to motions or introductory 
 proceedings;^ nor to proceedings brought against an attorney 
 to compel him to pay over money ;^ nor to verifications of 
 
 iGodine v. Kidd, 46 Alb. L. J. 171, ^Wilcox v. Corwin, 117 N. Y. 500, 
 
 46 N. Y. State Eep. 813, 64 Hud, 585. 27 N. Y. State Eep. 836. 
 
 2 Bowen v. Sweeney, 63 Hun, 324, 6 86 Mich. 413. 
 44 N. Y. State Rep. 188; Albany 7137 111.589. 
 
 County Sav. Bank v. McCarty, 149 8 Lobdell v. Lobdell, 36 N. Y. 320 ; 
 
 N. Y. 71. Severn v. National State Bank of 
 
 3 Hooper V. Hooper, 33 W. Va. 526. Troy, 18 Hun, 228; Re Lautenschla- 
 * Hess V. Lowery, 123 Ind. 225 ; ger's Estate, 80 Mich. 285. 
 
 Shain V. Forbes, 82 Cal. 577. • ^Re Purdy v. Stewart, 18 N. Y. 
 
150 EULES OF EVIDENCE. 
 
 claims;^ nor to proof of loss made to an insurance company .^ 
 It seems to apply to all matters of probate and proceedings in 
 a surrogate's court.' The wife of a contesting heir to a will 
 of real estate is incompetent to testify in her husband's favor;* 
 so is the widow of a, decedent who, as his wife, joined him in 
 the conveyance of real estate, in an action brought by the heirs 
 of such deceased grantor to set aside such conveyance on the 
 ground of undue influence; ^ and so is the wife of the plaintiff 
 in an action for specific performance of a contract by decedent 
 to convey land.^ In an action by a wido'w to set aside a deed 
 of land in which she joined, she is incompetent to testify as to 
 communications with her deceased husband as to the execution 
 of such deed ;' but she is hold to be competent to testify to a 
 transaction between herself and husband as to the transfer of 
 a policy on his life, held by her as security, in an action by her 
 against one claiming under such assignment.^ 
 
 In an action by the representatives of a creditor, the princi- 
 pal debtor may testify to transactions with such decedent.' 
 But it seems that a surety upon an indemnity bond is incom- 
 petent to testify in an action against the party indemnified.'" 
 If a party is interested at the time of the trial, it is immaterial 
 that he was not interested at the time the transaction or com- 
 munication occurred. '^ It seems that a widow who has joined 
 her husband in a deed is competent to show that the deed was 
 without consideration.'^ The fact that the children of a wit- 
 Week. Dig. 384 ; Wilson v. Russell, 61 e Evwin v. Erwin, 54 Hud, 166. 
 N. H. 354. ' Witthaus v. Schaak, 105 N. Y. 332 ; 
 
 1 Matter of Frazer, 93 N. Y. 339 ; Glover v. Thomas, 35 Tex. 506. 
 Walker v. Steele, 131 Ind. 436. s Barry v. Eq. L. A. Soc, 59 N. Y. 
 
 2 Cannon v. Northwestern Mut. L. 587; Blake v. Nolin, 81 Mich, 112; 
 Ins. Co., 29 Hun, 470 ; Smith v. Smith, Macauley v. Central National Bank, 
 62 N. J. L. 207 ; Macauley v. Central 27 S. C. 815. 
 
 National Bank, 37 S. C. 315. 9 Wallace v. Strauss, 113 N. Y. 238; 
 
 STilton V. Ormsby, 70 N. Y. 609; Brown v. Moore, 36 S. C. 160; Booth 
 
 Snyder v. Sherman, 88 id. 656 ; Marsh v. Pandola, 88 Cal. 41. 
 
 V. Brown, 18 Hun, 319; Brown v. H Holland v. Willetts, 9 N. Y. 170; 
 
 Mitchell, 75 Tex. 89. Dolan v. Dolan, 89 Ala. 356 ; Gavin v. 
 
 * Steele v. Ward, 30 Hun, 555 ; Hop- Bischoff, 80 Iowa, 605. 
 
 kins V. Manchester (R. t), 7 L. R. A. n Dawson v. Hamelrick, 33 W. Va. 
 
 387. 675. 
 
 sSanford v. Ellithorp, 95 N. Y. 48 ; 12 Moore v. Oviatt, 35 Hun, 316; 
 
 Clark V. Clough, 65 N. H. 43. Hooper v. Hooper, 33 W. Va. 536. 
 
COMPETENCY OF WITNESSES. 151 
 
 ness are interested in the estate does not disqualify the witness.' 
 The grantor of the deceased is competent, it seems, to state 
 what took place at the execution of a deed in a suit by a plaint- 
 iff claiming under the will of the deceased.^ The mother of 
 an illegitimate child is competent to testify to an agreement 
 by decedent to pay plaintitf foi' the care and support of such 
 child where she is not a party to the action.' So it is said that 
 a co-defendant who is not himself interested in the event may 
 testify in behalf of his co-defendant to a personal transaction 
 with deceased;* and although the declarations of an adminis- 
 trator or executor, not made while in the discharge of his duty, 
 are not evidence against him in an action brought by him in 
 his representative capacity,* entries made by the decedent are 
 competent.* An executor is incompetent to testify concerning 
 the status of the claim of a third person against the estate for 
 which he is asking to be allowed credit on account of having 
 the claim, where such claim is conflfested by the residuary leg- 
 atees;' and any person is incompetent in an action against an 
 executor, if such person will be released from liability to the 
 plaintiff if the latter succeeds.^ And in an action by a widow 
 to recover money loaned to her husband's committee, the in- 
 ventory of her husband's estate is not competent in her behalf, 
 if made by her.' And it is said that a party cannot testify to 
 the fact that a conversation took place, where it is a material 
 fact to be proved upon the trial.'" Nor can an interested party 
 state that the first time he heard of a sale was seven years 
 after the death of the deceased, where he has shown that he 
 was interested in the sale of a vessel by deceased, and that the 
 deceased had agreed to notify him of the sale." It is said that 
 
 1 Conblin v. Snyder, 104 N. Y. 641; 'Matter of Smith, 153 N. Y. 378; 
 Eisenlord v. Clum, U'6 ^T. Y. 553; Dawson v. Hamelrick, 33 W. Va. 675 ; 
 Wallace v. Jeoko, 25 Mo. App. 313. Tuck v. Nelson. 62 N. H. 469; Fulcher 
 
 2 Rank v. Gi-ote, 110 N. Y. 12 ; Hess v. Mandell, 83 Ga. 715. 
 
 V. Lowrey, 123 Ind. 225, 7 L. R. A. 90 ; 8 Redfield v. Redfield, 10 N. Y. 134 ; 
 Sublett V. Hodges, 88 Ala. 491. Nesbitt v. Parrott, 84 Ga. 142 ; Nun- 
 
 3 Connelly v. Conner, 117 N. Y. 91 ; nally v. Decker, 52 Ark. 550. 
 
 Orr V. Clark, 62 Vt. 186. 9 Davis v. Marvine, 11 App. Div. 440. 
 
 * Ebmann v. Scheuerman, 14 N. Y. w Hellis v. Filon, 83 Hun, 485 ; Dick 
 
 State Rep. 705; Shain v. Forbes, 83 v. Williams, 130 Pa. St. 41; Safree v. 
 
 Cal. 577; Martin v. Adams, 29 8. C. Smith, 63 N. H, 663. 
 
 597. " Hall V. Roberts, 63 Hun, 478 ; Ed- 
 
 6 Church V. Howard, 79 N. Y. 415. wards v. Parker, 88 Ala. 356. 
 
 « Swan V. Morgan, 88 Hun, 378. 
 
152 EULES OF EVIDENCE. 
 
 a judgment creditor cannot testify to a personal transactioD 
 with his deceased debtor in an action brought by the executors 
 of such debtor,' and that neither the grantor nor grantee, who 
 has covenanted to pay the grantor's debts, can testify to the 
 consideration of a mortgage in an action by a judgment cred- 
 itor against the administrator -of a deceased mortgagee to set 
 aside such mortgage as fraudulent.^ But a devisee is compe- 
 tent to testify to a personal transaction with a mortgagee who 
 died prior to the commencement of the action, in an action by 
 a creditor against such devisee to reach real estate for the pay- 
 ment of the debt of the testator.' 
 
 It seems that a stockholder or officer of a corporation is not 
 incompetent by reason of interest to testify to any transaction 
 had with the decedent in an action in which the corporation is 
 a party.* A legatee cannot testify to a transaction which oc- 
 curred in his presence at the time of the execution of the will 
 although he took no part iji the conversation.' He is also in- 
 competent to testify in an action by an executor to recover 
 money due the estate.' In an action against executors, one who 
 is both executor and legatee was said to be competent to tes- 
 tify in behalf of the executors as to a personal transaction with 
 the deceased ; ' and where a legatee has been paid his legacy he 
 is a competent witness to testify for or against the estate.' 
 It has been said that the contingent interest of a second coTisin 
 of decedent, who might be entitled to participate in the estate 
 in the event of the death of near relatives, does not disqualify 
 hira.' A husband has been held to come within the definition 
 of " next of kin," and as such incompetent to testify in his own 
 
 iGeissman v. Wolf, 46 Hun,. 289; SBrigham v. Gott, 20 N. Y. State 
 
 Hudson V. Houser, 123 Ind. 309. Rep. 420 ; Matter of Eysaman, 113 N. 
 
 2 Wilcox V. Dodge, 53 Hun, 565; Y. 63; Di6k v. Williams, 130 Pa. St. 
 Booth V. Wilson, 26 N. Y. State Rep. 41. But see Hard v. Ashley, 117 N. Y. 
 173; Shilds v. Smith, 104 N. C. 57; 606. 
 
 Cai-y V. Gary, id. 171. ^Kiock v. Brennan, 82 Hun, 268; 
 
 3 Cunningham v. Whitford, 74 Hun, Kennemore v. Kennemore, 26 S. 0. 
 393; Kennemore v. Kennemore, 26 251. 
 
 S. C. 251; Huckaba v. Abbott, 87 Ala. s Brown v. Klock, 24 N. Y. State 
 
 409 ; Wilson v. Wilson, 80 Mich. 472 ; Rep. 165 ; Palmer v. Farrell, 129 Pa. 
 
 Works V. State, Holland, 120 Ind. 119. St. 163. 
 
 4 Murray v. Fox, 104 N. Y. 382; Hlatter of Hanley, 44 Hun, 559; 
 Works V. State, Holland, 120 Ind. 119. Huckaba v. Abbott, 87 Ala. 409. 
 
 6 Matter of Bernsee, 141 N. Y. 387; 
 Boozer v. Teague, 37 S. C. 348. 
 
COMPETENCY OF WITNESSES. 153- 
 
 behalf as against persons who are next of kin.^ A son is not 
 incompetent where he has no present vested interest in th& 
 matter in controversy nor is a party to the action.^ In an ac- 
 tion by one heir to set aside a deed of his intestate on the 
 ground of fraud, etc., other heirs at law who are not parties to 
 the action are competent to testify in relation to the matter.* 
 In some jurisdictions an agent or person who acted as such in 
 the making of a contract is incompetent to testify for his prin- 
 cipal after the death of the "other party, and one party is ren- 
 dered incompetent to testify as to what occurred between hina 
 and the other party's agent by reason of the death of such 
 agent.* An executor is not incompetent to testify against the 
 estate unless he is in some way pecuniarily interested.^ la 
 some jurisdictions a wife suing a third party for services ren- 
 dered by her to such party, under an agreement with her hus- 
 band that the money received therefor should belong to her, 
 is not incompetent, as she is not in such case an assignee of her 
 husband.* So in some jurisdictions a husband is not incompe- 
 tent to testify in behalf of his wife in regard to her real estate 
 or for services rendered to the decedent by her; nor is he in- 
 competent although he is a party defendant to an action to- 
 foreclose a mortgage on her property, although he joined with 
 his wife in the execution of such mortgage ; ' and a mother who- 
 has entered into a contract with a decedent in behalf of her 
 children is competent to give evidence as to the agreement.* 
 
 1 Holcomb V. Holcorab, 65 N. T. Div. 178 ; Palmer v. Farrell, 129 Pa. 
 
 316; Dewey v. Goodenough, 56 Barb. St. 162; Drew v. Maide, 65 N. H. 107. 
 
 54 ; Mann v. Forein, 166 III. 446. e Lashaw v. Croissant, 88 Hun, 206^ 
 
 2Hirsh V. Aiier,*146 N. Y. 13; Wil- 68 N. Y. State Rep. 895; Gififord v. 
 
 son V. Wilson, 80 Mich. 473. Thomas, 62 Vt. 343 ; Henf v. N. W. 
 
 sHobart v. Hobart, 62 N. Y. 80; M. A. Ass'n, 76 Wis. 450. 
 
 Kennemore v. Kennemore, 26 S. C. ^ Burley v. Barnhard, 9 N. Y. State 
 
 351. Rep. 587; Humphrey v. Sweeting, 93 
 
 < Piper V. Foster, 121 Ind. 407; La Hun, 447; Devol v. Dye, 123 Ind. 321,, 
 Prad V. Sherwood, 79 Mich. 530 ; Ault- 7 L. R. A. 439 ; Albany Sav. Bank v, 
 man v. Adams, 35 Mo. App. 503 ; Mo- McCarty, 149 N. Y. 71 ; Sands v. Spar- 
 bile Sav. Bank v. McDonald, 87 Ala. ling, 83 Hun, 401 ; Porter v. Dunn, 61 
 736; Robertson v. Reed, 38 Mo. App. id. 310; Hopkins v. Clark, 90 id. 4; 
 33 ; Trunkey v. Hedstrom, 181 111. 304 ; Savercool v. Wylsey, 5 App. Div. 563. 
 Johnson v. Hart, 83 Ga. 767. SQcdine v. Kidd, 39 Abb. N. C. .(N. 
 
 sWiltsie V. Wiltsie, 17 N. Y. State Y.)36; Connelley v. O'Connor. 117 N. 
 
 Rep. 258 ; Matter of Lewis, 5 App. Y. 91 ; Shirley v. Bennett, 6 Lans. 
 
 (N. Y.) 512. 
 
154 EULES OF EVIDENCE. 
 
 It seems that a purchaser of the property of decedent at an 
 ofHcial sale to pay the debts of such decedent does not become 
 thereby an interested party;' nor is a witness for a donee, al- 
 though a brother having a similar claim against the estate/ 
 nor one to whom the decedent left money to be expended for 
 ■others.' In some jurisdictions agents of either partj'' are com- 
 petent,* and conversations with a deceased agent are also com- 
 petent.^ 
 
 A mortgagor is incompetent, in an action by an executor to 
 foreclose the mortgage, to testify that he had seen a paper 
 signed by himself and the deceased.^ So the vendor of a mort- 
 gage is incompetent, in an action by the vendee's represent- 
 atives to foreclose the same, to testify to a conversation with 
 decedent at the time the mortgage was given;' nor can he 
 state that he saw the instrument signed.* So a husband who 
 has joined his wife in executing a mortgage on her land, and 
 who is a party defendant and sought to be charged with the 
 deficiency, is incompetent to state transactions with deceased 
 which tend to show usury ; ^ but it is different, it seems, where 
 the husband and wife unite in a mortgage upon his land and 
 she receives the land as devisee of her husband. In such case 
 it seems that in some jurisdictions she may testify against the 
 assignee of the mortgagee as to transactions and conversations 
 between her husband and the mortgagee in relation to the mort- 
 gage.'" But it is said that a mortgagor, even after he has con- 
 veyed the mortgaged premises, is yet incompetent to testify 
 in favor of his grantee in regard to a personal transaction be- 
 tween himself and the plaintiff's intestate, where he has been 
 made defendant in a foreclosure proceeding, altfiough no money 
 
 1 Wolfe V. Lynch, 2 Dem. (N. Y.) 610. Boyd v. Cauthen, 28 S. C. 72 ; Mell v. 
 
 2Rix V. Hunt, 16 App. Div. 541. Earner, 135 Pa. St. 151. 
 
 3 Todd V. Vaughan, 90 Hun, 70 ; Mat- ' Smith v. Cross, 90 N. Y. 549 ; Daf- 
 
 ter of Zinkie, id. 127. field v. Hue. 129 Pa. St 94; De Cour- 
 
 i Ketcham v. Holden, 88 Hun, 482 ; sey v. Johnston, 134 id. 328. 
 
 Whitman v. Foley, 36 N. Y, State 8 Howell v. Mainwaring, 28 N. Y. 
 
 Eep. 138; Pratt v. Elkins, 80 N. Y. State Rep. 982; Young v. Cunning- 
 
 198. ham, 57 Mich. 153. 
 
 s Plainer v. Platner, 78 N. Y. 90; 9 Whitehead v. Smith, 81 N.Y. 151; 
 
 Hildebrant v. Crawford, 65 id. 107; Tunstall v. Withers, 86 Va. 892. 
 
 Pratt V. Elkins, 80 id. 198. lOHolcomb v. Campbell, 118 N. T. 
 
 BHadsall v. Scott, 26 Hun, 617; 4fi; Wilson v. Reynolds. 98 N. Y. 610 ; 
 
 Luetchford v. Lord, 132 N. Y. 465 ; Bunn v. Todd, 107 N. C. 266. 
 
COMPETENCY OF WITNESSES. 155 
 
 judgment has been asked against him, and he has made default 
 in the action.' It seems that the survivor of joint makers of 
 a note is competent to testify to transactions with his deceased 
 co-maker unless it is to the interest of the witness to make his 
 co-maker liable.^ In other words, to render such a witness 
 competent it must appear that the decedent was a surety for 
 the witness, or that, as between themselves, neither was liable 
 to contribute to the payment of the note to the party pay- 
 ing.' The fact that a note executed by a deceased person is 
 put in evidence by his representatives does not make the liv- 
 ing party to such paper competent to testify as to what was 
 said and done when it was executed.* 
 
 The alleged maker of the note in an action by an indorser majr 
 state that the name appearing subscribed to the note is not his 
 signature, although the payee is dead.^ But as a general rule 
 neither the maker nor the indorser can be a witness in favor 
 of the other as to transactions with the deceased, in actions by 
 personal representatives of such deceased persons." Thus, in an 
 action against an executor upon a note made by the testator, 
 the plaintiff is incompetent to testify as to the indorsements 
 made thereon by him, where an action upon such note would 
 have been barred by the statute of limitations unless interest 
 had been paid as appeared by such indorsements ; ' and a plaint- 
 iff in such action is incompetent to testify to the non-payment 
 of the note, where the defense of payment is set up.* In an 
 action by a second indorser who has paid the note and taken 
 it up, against the first indorser, neither party is precluded by 
 the death of the maker from testifying to the circumstances of 
 
 1 Smith V. Hathorn, 25 Hun, 159 ; 6 Alexander v. Dutcher, 70 N. Y. 
 Whitney v. Fox, 166 U. S. 637 ; Marcy 385 ; German Am. Bank v. Slade, 72 
 V. Howard, 91 Ala. 133 ; Mathews y. N. Y. Stats Rep. 437 ; Penny v. Croul. 
 Hoagland, 48 N. J. Eq. 455. 13 L. R. A. 83, 44 Alb. L. J. 225, 87 
 
 2 Sprague v. Smith, 28 Hun, 49. Mich. 15 ; Matter of McNeany, 5 App. 
 
 3 Wilcox V. Corwin, 117 N. Y. 500 ; Div. 436 ; Church v. Howard, 79 N. Y. 
 Barbee v. Barbae, 107 N. C. 581. 415 ; Potts v. Moyer, 86 N. Y. 303 ; 
 
 ■1 Matter of Callister, 153 N. Y. 294 ; McMillen v. Sterne, 58 N. Y. State 
 
 Rice V. McFarland, 41 Mo. App. 489. Rep. 839 ; Genet v. Sawyer, 61 Barb. 
 
 5 Saratoga County Bank v. Leach, 211. 
 
 87 Hun, 386 ; Converse v. Cook, 31 ' Redfield v. Stett, 4 N. Y. State Rep. 
 
 Hun, 417 ; Costen v. McDowell, 107 864 ; Simpson v. Simpson, 107 N. C. 
 
 N. C. 546; New York Nat. Bank v. 552. 
 
 Jones, 9 Daly, 340; MoElhenney v. 8 Howell v. Van Siolen, 6 Hun, 115; 
 
 Hesndricks, 83 Iowa, 657. Buie v. Scott, 107 N. C. 181. 
 
156 EULES Off EVIDENCE. 
 
 the indorsements.* It is said that^ indorsers not parties to the 
 action, and wlio have not been charged by notice, may, in a suit 
 brought against the maker, prove conversations with the de- 
 ceased showing payment.^ Beneficiaries under a will are incom- 
 petent to testify that indorsements on the note in issue were 
 made by the plaintiflf during the life-time of plaintiff's testator, 
 in an action by an executor against the estate of a deceased 
 person, where the defendant set up the statute of limitation.' 
 It is said that a surviving partner is incompetent to testify to 
 any transaction with the deceased which tends to show that the 
 latter was a member of the firm, where the action is upon a firm 
 note against the executor of the deceased member of the firm.* 
 It is said that a transferee of a note is not an assignee, where the 
 action is to recover the amount paid him by a purchaser of 
 such note, to whom hte has transferred it in violation of the 
 terms of indorsement, and the plaintiff, who is an accommoda- 
 tion indorser, had been compelled to pay the same to the holder 
 thereof.^ Parting with the possession of a note by the holder 
 to the maker is a personal transaction.^ It is said that in an ac- 
 tion by the survivor of an alleged copartnership against the 
 representatives of a deceased partner, the plaintiff can neither 
 prove the partnership nor that the deceased made an entry in his 
 presence in the firm book ;' nor in an action agamst a surviving 
 member of a firm can the plaintiff testify to transactions by 
 him with the deceased partner,^ though if such surviving part- 
 ner was present the rule is different.* 
 
 1 Kelley v. Burroughs, 102 N. Y. 93 ; ' Adams v. Morrison, 113 K. Y. 153; 
 Wilson V. Lowe, 7 N. Y. State Rep. Lewis v. Merritt, 98 id. 206 ; Walton 
 672 ; Converse v. Cook, 31 Hun, 417 ; v. Hiunau, 146 Pa. St. 396. 
 
 Watts V. Warren, 1 08 N. C. 514 ; Fog- 8 Green v. Ediok, 56 N. Y. 613 ; Man- 
 
 geth V. GafiEuey, 33 S. C. 303. ning v. Schmidt, 4 App. Div. 131 ; 
 
 2 Nearpass v. Gilman, 104 N. Y. 506 ; Gray t. Shelby, 88 Tex. 405. 
 Sallabe v. Gerlech, 132 N. Y. 548; 9 Kale v. Elliott, 18 Hun, 198; Cor- 
 Parker v. Maxwell, 45 Minn. 1. ning v. Walker, 100 N. Y. 547 ; Ripley 
 
 3 Mills V. Davis, 113 N. Y. 243; v. Seligraan, 88 Mich. 177; Goodwin 
 Eramel v. Hayes, 102 Mo. 186, 11 L. v. Hirsch, 37 N. Y. Sup. Ct 503; Law- 
 R A. 323. ton v. Sayles, 40 Hun, 252; Sheldon 
 
 4 Hunter v. Herrick. 92 N. Y. 626; v. Sheldon, 84 Hun, 422; Merrill v. 
 Janes V. Janes, 81 Tex. 373. Brunner, 9 N. Y. State Bep. 47; 
 
 sComstock V. Hier, 73 N. Y. 269; Wheeler v. Kuntz, id. 496; Nay v. 
 
 Shaak v. Meilly, 136 Pa. St. 161. Curley, 113 N. Y. 575 ; Pettit v. Geesler, 
 
 6 Van Gilder v. Van Gilder, 81 N. Y. 58 How. Pr. (N. Y.) 195. 
 625; Howell v. Taylor, 11 Hun, 314; 
 Montague v. Thomason, 91 Tenn. 168. 
 
COMPETENCY 0¥ WITNESSES. 157 
 
 Personal transactions and communications embrace every 
 variety of affairs which can form the subject of negotiations, 
 interviews or actions between two persons, and include every 
 method by which one person can derive impressions or infor- 
 mation from the conduct, condition or language of another.^ 
 Thus, if silence can be construed to signify assent, it is incom- 
 petent to show the silence of the deceased on such occasion.^ 
 The word " transaction," however, does not embrace every- 
 thing which goes to make up a cause of action. Thus, a mother 
 may testify as to the birth of a child, upon an application to 
 revoke a will of such child upon the ground that he \vas under 
 eighteen years of age at the time of making the same;' and a 
 plaintiff v^as allowed to say that he deposited the money sued 
 for to the credit of the decedent under a certain arrangement 
 by which he kept his money in the decedent's hands in this 
 way.* So an incompetent witness may state the names of the 
 persons who were in the room with the witness and decedent.* 
 A claimant may state that he paid his own money to third 
 persons in payment of the decedent's debt, in an action against 
 decedent's estate for the recovery of such money.* Plaintiff 
 cannot state that he took proper notices to decedent's house, 
 and that he came away without them ;' nor that figures denot- 
 ing the price and number of certain chattels were entered in a 
 book of deceased by his son, and that they agreed with the 
 figures in claimant's book ; ^ but it has been said that the plaint- 
 iff may testify to an entry which he saw in decedent's book 
 during his life-time, and that it was in decedent's handwriting,' 
 and whether he ever had a written acknowledgment of in- 
 debtedness from him to deceased.'" He may also state the 
 
 iHeyne v. Doefler, 124 N. Y. 505; 6 Matter of Zinke, 90 Hun, 137; 
 
 Montague v. Thomason, 91 Tenn. 168. Gable v. Haines, 83 Iowa, 457. 
 
 2 Oliver v. Fi-eleigh, 36 Hun, 633; ' Finton v. Eggleston, 40 N. Y. State 
 
 Brice v. Miller, 35 S. C. 537 ; Gamble Eep. 936 ; Goerke v. Goerke, 80 Wis. 
 
 V. White Lead, 94 Ala. 335. 516. 
 
 s Matter of Paige, 63 Barb. 476; s Herrington v. Winn, 38 N. Y. State 
 
 Francklin v. Pinkey, 18 Abb. Pr. Rep. 83; Quanier v. Quanier, 36 W. 
 
 {N. Y.) 186 ; Farmers' & T. Bank v. Va. 310 ; Alexander v. Alfred, 89 Ky. 
 
 Creveling, 84 Iowa, 677. 105. 
 
 * Shirley v. Bennett, 6 Lans. (N. Y.) 9 Carroll v. Davis, 9 Abb. N. S. 
 
 513 ; Hatch v. Peugnet, 64 Barb. 1C9 ; (N. Y.) 60 ; Sankey v. Cook, 83 Iowa, 
 
 Cornelius v. Brawley, 109 K C. 542. 125. 
 
 SGreerv. Greer, 58 Hun, 251; Still- "Bloss v. Morrison, 47 Hun, 318; 
 
 well V. Patton, 108 Mo. 353. Foggelh v. Gaffney, 33 S. C. 303. 
 
158 EULES OF EVIDENCE. 
 
 length of time he has occupied the property, that he has rented 
 it and collected the rent.^ A donee may deny the statement 
 of hostile witnesses who testify that after the death of the 
 donor they heard the donee say she never had the property 
 claimed as a gift in her possession, and she may further state 
 that at the time of such interview the property was in her 
 trunk ;^ but she has no right to testify to anjr transaction be- 
 tween herself and the donor which tended to show the prop- 
 erty was given to her.' 
 
 Where an incompetent witness has been cross-examined as 
 to a particular subject, he may on his re-examination state the 
 whole of the transaction so far as it is connected with the mat- 
 ter drawn out upon his cross-examination.* It seems that it is 
 incompetent for a plaintiff to state in an action against an ad- 
 ministrator that a receipt put in evidence by the defendant 
 had been changed since the plaintiff delivered it to the defend- 
 ant's intestate.^ But the plaintiff may testify as to personal 
 transactions with decealsed where the administrator is sued in 
 his individual capacity upon claims in which he had acted for 
 the estate.* It has been said that a plaintiff cannot testify 
 to the execution and delivery of a written agreement between 
 the plaintiff and defendant's testator, where such instrument 
 contains mutual covenants for an accounting.^ It is not com- 
 petent for a party to state that he had a conversation with a 
 deceased person, to whom the opposite party stands in the re- 
 lation of assignee, when the mere fact of such conversation is 
 a material question ; ^ though a party may state that a certain 
 .letter which he found in the testator's desk was inclosed in an 
 envelope, directed to him in testator's handwriting, and that 
 
 iStrough V. Wilder, 49 Hun, 409; 198; Loth v. Frederick, 95 Mich. 598; 
 Gable v. Haines, 83 Iowa, 457. Biggs v. McCurley, 76 Md. 409 ; Moore 
 
 2 Rix V. Hunt, 16 App. Div. 541 ; v. SchoHeld, 95 Cal. 486. 
 
 Stevens v. Witter, 83 Iowa, 686 ; « Hall v. Richardson, 89 N. Y. 636 ; 
 Parker v. Maxwell, 51 Minn. 533. Harrington v. Tremblay, 61 N. H. 
 
 3 Mullens v. Chickering. 110 N. Y. 413. 
 
 515; Cornel v. Cornel, 12 Hun, 312; fChaffe v. Goddard, 42 Hun, 147; 
 
 Conklin v. Conklin, 20 Hun, 278 ; Tooley v. Bacon, 70 N. Y. 34 ; Mason 
 
 Graves v. King, 15 Hun, 367 ; Lang v. Prendergast, 120 N. Y. 536 ; Rau- 
 
 V. Smith, 37 W. Va. 725. bitsohek v. Blank, 80 N. Y. 478; Boyd 
 
 * Blankman v. McQueen, 37 N. Y. v. Cautheu, 28 S. C. 72. 
 
 State Rep. 601 ; Boyd v. Conshohocken s Maverick v. Marvel, 90 N. Y. 656; 
 
 W. Mills, 149 Pa. St. 363. Stevens v. Witter, 83 Iowa, 636. 
 
 ^Boughton V. Bogardus, 35 Hun, 
 
COMPETENCY OF WITNESSES. 159 
 
 the letter was in the handwriting of the deceased.' It is said 
 that an interested witness cannot state that the deceased suf- 
 fered from paralysis at a certain material time ; nor can such 
 witness testify to the physical condition of the deceased dur- 
 ing a certain period, when the question calls for facts learned 
 while witness and deceased were associated in business ; ^ nor 
 can he testify to the appearance of the deceased, as indicating 
 his incompetency to execute an instrument.^ A personal rep- 
 resentative, upon his accounting, cannot testify as to the pay- 
 ment of money by him to his decedent, where he seeks credit 
 for such amount.* But it has been said that a person who pre- 
 sents a claim against an estate, based upon a contract with the 
 testator, is a competent witness to the contract upon an ac- 
 counting,' though it has been said that a party cannot testify 
 that he saw the deceased sign the affidavit of verification to 
 the complaint;^ nor that certain letters were written or were 
 received and retained by the person addressed.' The death of 
 one of the defendants before the completion of the plaintiff's 
 examination will not render the testimony already given by 
 him incompetent.^ The plaintiff in an action against an estate 
 for work and goods sold is incompetent to testify as to what 
 was said by him in an attempted settlement of the claim, not- 
 withstanding the defendants were present at the time.' In an 
 action by an executor for services rendered to his testator he 
 cannot testify to what he did.'" It seems that a person may 
 testify to the value of services rendered by him to decedent," 
 
 1 Wing V. Bliss, 28 N. T. State Rep. Rep. 407 ; Koehler v. Adler, 91 N. Y. 
 198; Van Vechten v. Van Vechten, 657; Gifieord v. Tliomas, 68 Vt. 34; 
 65 Hun, 315; Messimer v. McCrary, Boyd t. Cauthen, 28 S. C. 72. , 
 113 Mo. 382; Lewis v. McGinnis, 80 SDenham v. Jayne, 3 Hun, 614; 
 Fla. 419 ; Banister V. Ovitt, 64 Vt. 580. Mell v. Barner, 135 Pa. St. 151; 
 
 2 Campbell v. Hubbard, 88 Hun, Sawyer v. Brandy, 113 N. C. 42. 
 306; Scott V. Scott, 13 N. Y. State 'Resseguie v. Mason, 58 Barb. 89; 
 Rep. 203; Sullivan v. Lattimer, 38 Pattou v. Glover, 1 App. D. C. 466. 
 
 S. C. 17. ^ Comins v. Hetfield, 80 N. Y. 261. 
 
 s Holcomb V. Holcomb, 95 N. Y. 9 Davis v. Gallagher, 134 N. Y. 487. 
 
 316; Matter of Eysaman, 113 id. 22; w Burnett v. Noble, 5 Redf. (N. Y.> 
 
 Buckhart v. Gladish, 133 Ind. 337. 69; Ross v. Ross, 6 Hun, 188; Gamp- 
 
 « Matter of Kellogg, 104 N. Y. 648 ; bell v. Hubbard, 38 Hun, 306 ; Brague- 
 
 Dawson v. Hamelrick, 33W. Va.675; v. Lord, 67 N. Y. 495; Summerville 
 
 Tuck V. Nelson, 62 N. H. 469 ; Fuloher v. Crook, 9 Hun, 664 ; Freemen v. 
 
 V. Mandell, 83 Ga. 715. Lawrence, 43 N. Y. Supr, Ct. 288. 
 
 s Matter of Frazer, 93 N. Y. 239 ; " Ah How v. Furth, 13 Wash. 550. 
 Hurlburt v. Huilburt, 18 N. Y. State 
 
160 EULES OF EVIDENCE. 
 
 and in an action for conversion to the value of the property; 
 but he cannot testify to the length of time he worked on the 
 testator's premises, nor the value of his services, nor even to 
 the nature of the services.^ The plaintiff may testify, in an ac- 
 tion for board furnished to decedent, that he paid for the sup- 
 plies himself, although the defense is that the deceased paid 
 for the household supplies in lieu of board.^ 
 
 In some jurisdictions a wife is a competent witness for her 
 husband to testify to a contract for her services made with 
 decedent, where she performed the services in behalf of her 
 husband and makes no claim for them herself;' but the rule is 
 different in some jurisdictions.* In an action for services, a 
 memoranda of the deceased found deposited with his will in 
 the following words: "I owe him that," may be connected by 
 imference with the services, and furnish the element lacking 
 in the oral proof to show that the services were rendered at 
 the request of deceased, with expectation of compensation.^ 
 It seems that- the books of account kept by decedent are com- 
 petent in evidence when accompanied by the ordinary prelim- 
 inary proof. When the party and his clerks are all dead, the 
 books are admitted in evidence upon the preliminary proof, 
 together with proof of the death of the clerks and proof of 
 their handwriting.'* In all cases it is necessary that the prelimi- 
 Hary proof be full and complete.'' Such books are not compe- 
 tent to establish the rendering of services to the deceased 
 where there is no proof of these facts exclusive of the entries 
 in such books.' It has been held in some jurisdictions that 
 entries made by a party are admissible in evidence against a 
 decedent when accompanied by the required preliminary proof, 
 though relating to personal transactions.' The rule seems to 
 
 1 Taylor v. Welsh, 93 Hun, 372; ^Manu v. Forein, 166 111. 446. 
 Gregory V. Fichtner, 21 N. Y, Civ. » Matter of Gallagher, 153 N. Y. 364. 
 Pro. Rep. 1 ; Matter of Simpson, 24 6 Dakin's Executor v. Walton, 85 
 3Sr. Y. State Rep. 685; Burroughs v. Hun, 561; Young v. Luce, 50 N. Y. 
 Butler, 38 Hun, 157; Fisher v. Ver- State Rep. 253; Dooley v. Moan, 33 
 planck, 17 Hun, 150; Dysartv. Furrow, id. 118; Irish v. Horn, 84 Hun, 121; 
 90 Iowa, 59; Cargill v. At wood, 18 Beatty v. Clark, 44 Hun, 136; Eod- 
 R. I. 27. mau v. Hoop, 1 U. S. 85. 
 
 2 Sager v. Dorr, 31 N. Y. State Rep. ' Powell v. Murphy, 18 App. Div. 35. 
 635 ; Cargill v. Atwood, 18 R. I. 27 ; s Davis v. Seman, 64 Hun, 573. 
 Trimble V. Mims, 93 Ga. 103. ^Knight v.Cunnington, 6Hun, 100; 
 
 ^Porter v. Dunn, 131 N, Y. 314. Wetmore v. Peck, 19 Alb. L. J. 400. 
 
COMPETENCY OF WITNESSES. 161 
 
 be a dangerous one and to contravene the law itself.' An ad- 
 ministrator plaintiff is incompetent to testify to a conversation 
 had with the defendant's testator before he was appointed 
 administrator;^ and any party to an action who has any in- 
 terest at stake is incompetent as to conversations with de- 
 ceased.' A party may state that a conversation did not take 
 place in the room where other witnesses state it did.* So an 
 executor may testify as to personal transactions or conversa- 
 tions Avith the deceased in favor of the personal representa- 
 tives.^ Conversations made in the presence of a witness are 
 made to him,' although we find in O'Brien v. Weiler' the 
 court attempting to make a distinction between proceedings 
 before a probate court and actions in other courts. The word 
 " testimony " has been held to mean sworn statements of the 
 deceased made on some other occasion ; and we find in Matter 
 of Callister' the court saying that a promissory note executed 
 by decedent and read in evidence by his representative did not 
 lay the foundation for the right of the opposite party to tes- 
 tify in regard to it. The testimony of the plaintiff upon a 
 former trial may be used, although since that time one of the 
 defendants has died and the action continued against his rep- 
 resentative.' 
 
 A widow is not competent to testify to a marriage with the 
 deceased upon application for letters of administration.'" In 
 an action by an executor or administrator to set aside a deed 
 from decedent as in fraud of decedent's creditors, the defend- 
 ants are competent to testify to conversations and transactions 
 
 » Elmore v. Jacques, 2 Hun, 130; N. Y. 575; In re Bernsee's Will, 140 
 
 Jacques v. Elmore, 7 Hud, 675. N. Y. 389; Fetrie v. Petrie, 126 N. Y. 
 
 s Poucher v. Scott, 98 N. Y. 422 ; 683 ; Prague v. Lord, id. 496 ; Devlin 
 
 Wilkins v. English, 24 Hun, 33 ; Rich- v. Greenwich Sav. Bank, 125 id. 756. 
 
 ardson v. Richardson, 148 III. 563, 26 But see Simonda v. Partridge, 154 
 
 L, R. A. 305. Mass. 500. 
 
 3 Johnson v. Cochrane, 91 Hun, 165 ; ' 140 N. Y. 281. 
 Ectert T. Eckert, 13 App. Div. 490; «153 N. Y. 294. 
 
 Baxter v. Baxter, id. 65 ; Patlian v. s Morehouse v. Morehouse, 41 Hun, 
 
 Moran, 71 N. Y. 595 ; Farnsworth v. 146 ; McDonald v. Woodbury, 30 Hun, 
 
 Ebbs, 2 Hun, 438. 35 ; Rice v. Motley, 24 Hun, 143 ; Titus 
 
 4 Pinney v. Orth, 88 N. Y. 447 ; An- v, O'Conner, 57 Hun, 391. 
 
 drews v. Hunt, 7 Mackey (U. S.), 311. i" Angevine v. Angevine, 48 Barbb 
 6 McLaughlin v. Webster, 141 N. Y. 417; Hopkins v. Bowers, 111 N. C. 
 
 76. 175. 
 
 « Matter of Will of Dunham, 120 
 11 
 
162 EDLES OF EVIDENCE. 
 
 with the deceased relative to the transaction ; ' but such de- 
 fendants cannot testify to conversations vrith the alleged in- 
 testate held prior to the issuing of letters tending to show that 
 such person is still alive ;^ nor can an interested party testify 
 to declarations of the deceased that a party making applica- 
 tion for letters of administration was not his child. The words 
 " deriving title or interest," in the statutes, seem to mean claim- 
 ing to derive title or interest ; thus, contestants of probate of 
 wills come within the statute.' Any party who has derived 
 his title through mesne conveyances from a deceased grantor, 
 under whose conveyance the opposite party claims, is one 
 claiming to derive title or interest from the decedent.* Thus, 
 the assignee of a mortgage and the assignor of the equity of re- 
 demption come within the definition.^ Where the action is 
 brought by creditors of the defendant's husband to set aside 
 a conveyance from him to her, she is entitled to testify to all 
 the transactions between herself and husband in regard to the 
 matter.^ A party may testify to having possession of a deed, 
 and that the signature is in the handwriting of his deceased 
 grantor,'' and as to his occupation under the deed, and that he 
 paid the funeral expenses of deceased, as part of the consider- 
 ation.' Where the party claims under a deed purporting to 
 be executed by a deceased ancestor and wife to the other party, 
 he may testify to conversations with the deceased wife.' So 
 an executor or administrator or others are not entitled to take 
 advantage of the statutory prohibition where they are parties 
 as individuals and not in their representative capacity." It 
 seems that where a party has given testimony as to facts which 
 
 1 Swan V. Morgan, 88 Hun, 378 ; Mil- ' Simmons v. Havens, 101 N. Y. 427 ; 
 ler V. Davis, 37 N. Y. State Rep. 854 ; Steiner v. Eppinger, 61 Fed. Eep. 253 ; 
 Brice v. Miller, 85 S. C. 537 ; Re Kea- Lane v. Rogers, 113 N. C. 171. 
 
 hus' Estate, 163 Pa. St. 488 ; Nixon v. 8 Savercdol v. Wilsey, 5 App. Div. 
 
 McKinney, 105 N. C. 23. 663 ; Strough v. Wilder, 49 Hun, 405 ; 
 
 2 Parhan v. Moran, 71 N. Y. 596. Re Kessbis' Estate, 87 Wis. 660 ; Mar- 
 
 3 Matter of Will of Smith, 95 N. "Y. tin v. McAdams, 87 Tex. 325. 
 
 516; Neely v. Carter, 96 Iowa, 197. » Matter of N. Y. C. & H. E. R Co., 
 
 4 Pope V. Allen, 90 N. Y. 398; Pax- 90 N. Y. 343; French v. French, 91 
 ton V. Paxton, 88 W. Va. 616 ; Re Iowa, 59. 
 
 Irwin's Estate, 160 Pa. St. 82. lo Barey v. Equitable L. Assur. Soc, 
 
 ' 3 Smith V. Cross, 90 N. Y. 549 ; Dui- 59 N. Y. 587 ; Harrington v. Trimblay, 
 
 field V. Hue, 136 Pa. St. 602. 61 N. H. 413. 
 
 6 Gillies V. Kreuder, 103 N. Y. 666. ' ' 
 
COMPETENCY OF WITNESSES. 103 
 
 may or may not involve the affirmative or negative of the ex- 
 istence of personal transactions with the deceased, the adverse ■ 
 party may also testify to extraneous facts which tend to neg- 
 ative or affirm the existence of sucli transaction.^ A party ■ 
 may testify to an extrinsic fact which tends to negative a per- 
 sonal transaction with the deceased, where no statement of 
 the subject-matter is embraced in the question.^ The testimony 
 of an incompetent person cannot be elicited by the adoption 
 of indirect methods to evade the prohibition of the statutes.' 
 But in Denise v. Denise * it was held, in an action by a widow 
 against her husband's estate, that she was competent to answer 
 the question : " From the date of your marriage, who provided 
 the necessaries of the house? " 
 
 It seems that the law excludes any statements which might 
 tend to show indirectly the fact. Thus, we find it said that it 
 is not competent to testify to the address on a package sent 
 to the decedent;' or what securities were in a box which 
 plaintiff sent to defendant's testator;^ or what articles were 
 in the box;' or that the box was delivered at decedent's' 
 place of business.' But the rule does not exclude independent 
 facts, although it may tend to aid in some degree the proof 
 of transactions between witness and deceased.^ In Tunson v. 
 Salisbury " the defendant was allowed to state that he never 
 signed the bill of sale which the decedent had shown. '^ A party 
 has been allowed to say that he had a conversation with de- 
 cedent ; 1^ how long a deed from a deceased grantor had been, 
 
 1 Lewis V. Merritt, 98 N. Y. 306 ; Rix N. Y. State Rep. 489 ; Martin v. Shan- 
 V. Hunt, 16 App. Div. 541 ; Pinney v. non, 92 Iowa, 374. 
 
 Orth, 88 N. Y. 447 ; Andrews v. Hunt, * 110 N. Y. 563. 
 
 7 Mackey (U. S. ), 311. 5 Stewart v. Peterson, 37 Hun, 113 ; 
 
 2 Stanley v. Whitney, 47 Barb. 586 ; Whitney v. Fox, 166 tl. S. 637. 
 Zinke v. Zinke, 90 Hun, 137 ; Mo- e Wood v. Fox, 166 U. S. 648 ; Doo- 
 Kenna v. Bolger, 49 Hun, 259 ; Foun- little v. Stone, 88 N. Y. State Rep. 319. 
 tain V. Linn, 57 N. J. L. 503 ; Clark v. ' Gregory v. Fitchner, 38 N. Y. 
 Smith, 46 Barb. 30. State Rep. 193 ; Boyd v. Cauthen, 28 
 
 3 Tooley v. Bacon, 70 N. Y. 34 ; Mat- S. C. 72. 
 
 ter of Humfreville, 6 App. Div. 535 ; » Clark v. Clough, 65 N. H. 43 ; 
 
 Jacques v. Elmore, 7 Hun, 675 ; Alex- Clif t v. Moses, 113 N. Y. 426 ; Denise 
 
 ander v. Dutoher, 70 N. Y. 385; Au- v. Denise, 110 id. 563. 
 burn Savings Bank v. Brinkerhoof, ^ Kinke v. Zinke, 90 Hun, 137. 
 
 44 Hun, 142 ; Parks v. Andrews, 56 l« 15 App. Div. 315. 
 
 Hun, 391 ; McMurray v. Ennis, 38 " Cary v. Gary, 104 N. C. 171. 
 
 12 Heir v. Grant, 47 N. ' Y. 278. 
 
IGi ECLES OF EVIDENCE. 
 
 in his possession ; ' and that he saw deceased on a certain day 
 at a certain place.^ One legatee under a will may testify in 
 aid of a contestant if he will not receive some benefit from 
 some prior will.' But as a general rule a beneficiary under a will 
 cannot testify in support of it ; * nor can an heir-at-law testify 
 to matters that would destroy it. Thus, a daughter is incom- 
 petent.* A release of interest has been held to make a legatee 
 under a will competent to testify in aid of the proponent,* but 
 not where such testimony would aid the party to whom the 
 release is given.' The burden is upon the party objecting to 
 show that the witness is disqualified. The objection must be 
 made at the first opportunity, and the grounds upon which 
 the objection is made must be pointed out.' It is sufficient, 
 however, to say that the question calls for testimony relating 
 to personal transactions or conversation by an interested party 
 with a deceased person.' The objecting party must be care- 
 ful to point out the very questions that call for such testi- 
 mony,"' and to do it when the testimony is offered," although 
 one objection to the same class of testimony is sufficient.'^ 
 Where no objection is made, a motion to strike out is of doubt- 
 ful efBcienoy," especially where the objecting party had full 
 knowledge of the incompetency of the testimony when the 
 question was propounded." In practice, however, the trial 
 court usually entertains a motion to strike out incompetent 
 
 iSpicer v. Spicer, 54 N. Y. Super. ^Loder v. Whelfley, 111 N. Y. 239. 
 
 Gt. 280 ; Berry v. Ardle, 62 N. H. 354. ' O'Brien v. Weiler, 140 N. Y. 281 ; 
 
 2 Matter of Brown, 38 N. Y. State Dick v. Williams, 130 Pa. St 41. 
 
 Rep. 180 ; Patterson V. Martin, 33 W. « Steele v. Ward, 30 Hun, 555; 
 
 Va. 494. Marcy v. Amazeen, 61 N. H. 131 ; 
 
 ' Albany Co. Sav. Bank v. MoCarty, Shell v. Boyd, 32 S. G. 359. 
 
 149 N. Y. 71; Matter of Potter, 17 ^Danforthv. Ellithorpe, 95 N. Y. 
 
 App. Div. 267; Newton v. Newton, 48; Duffleld v. Hue, 129 Pa. St 94. 
 
 77 Tex, 508 ; Matter of Clark, 82 Hun, m Hoar v. Hoar, 23 Hun, 33 ; Riggs 
 
 341 ; Matter of Stewart, 34 N. Y. v. American H. M. Soo., 35 Hun, 656 ; 
 
 State Rep. 333. Bell v. Bumstead, 38 N. Y. State Rep. 
 
 i Lee V. Dill, 39 Barb. 516 ; Brown 393. 
 
 V. Moore, 36 S. C. 160; In re Bernsee, "Ham v. Van Orden, 84 N. Y. 257; 
 
 141 N. Y. 387 ; Seligman v. Ten Eyck, Card v. Card, 39 N. Y. 317. 
 
 60 Mich. 267; Lane v. Lane, 95 N. Y. i2Hobart v. Hobart, 63 N. Y. 80; 
 
 495 ; Matter of Smith, 96 id. 661. Coursey v. Johnston, 134 Pa. St 328. 
 
 6 In re Palmateer, 78 Hun, 43; "Cross v. Smith, 85 Hun, 49. 
 
 Matter of Lasak, 131 N. Y. 624; "Levin v. Russell, 42 N. Y. 251; 
 
 Doughty V. Doughty, 5 N. Y. State Hoyt v. Hoyt, 113 id. 493. 
 Rep. 95. 
 
OOMPETENCr OF WITNESSES. lf>5 
 
 evidence if made at any tiifae before the close of the trial, if 
 this is the only way that the objecting part}"^ can bo protected.^ 
 The testimony of a party or interested witness is always 
 competent where the executor, administrator, survivor, com- 
 mittee or person deriving title or interest is examined in his 
 own behalf, or the testimony of the deceased person, lunatic or 
 idiot is given in evidence concerning the same transaction or 
 communication.* Where the executor has testified to a conver- 
 sation with the opposite party in which such party admitted the 
 delivery of the property in question to him by the deceased, 
 such party is competent to state the real transaction with the 
 deceased;' and where the executor or administrator testifies 
 to a transaction between the other party and deceased, such 
 other party is competent to testify to all that took place at 
 such time;* but he must be limited to the matters testified to 
 by such executor or administrator.' Thus, if a party testifies 
 that a certain debt has not been paid, the debtor cannot tes- 
 tify that he paid it to the creditor's deceased partner.* Where 
 the executor or administrator testifies to admissions by the 
 opposite party that he made a contract with the decedent, 
 such other party is not competent to deny that he had made 
 such contract with decedent.'' Where an executor puts in evi- 
 dence the testimony of his testator taken in that action, the 
 other party may testify generally as to the transaction to 
 which such deceased testified;' and where such executor on 
 the cross-examination of the adverse party calls out a partial 
 disclosure of a transaction of which such adverse party is in- 
 competent to testify, such adverse party may on re-examina- 
 tion detail the complete transaction.' But the fact that a 
 
 1 Miller v. Moutgomery, 78 N. Y. (N. Y.) 360 ; Marsh v. Brown, 18 Hun, 
 286; Mills v. Kernoohan, 3 N. Y. 319. 
 
 State Rep. 153 ; Kerr v. McGuire, 28 8 Rogers v. Rogers, 158 N. Y. 343 ; 
 
 N. Y. 446 ; Boston v. Scramling, 31 Pettit v. Geesler, 58 How. Pr. (N. Y.) 
 
 Hun, 467. 195 ; Trimmer v. Trimmer, 90 N. Y. 
 
 2 Rogers v. Rogers, 153 N. Y. 343; 675; Rogers v. McGuire, 90 Hun, 455. 
 Doe V. Merrill, 65 N. H. 107 ; Sheehan « Pettit v. Geesler, 58 How. Pr. 
 V. Hennesey, id. 101; McBride v. (N. Y.) 195; Goodwin v. Hirsch, 38 
 McBride, 82 Ga. 714 ; Harley v. Hack- N. Y. Super. Ct. 503. 
 
 ett, 73 Tex. 262 ; Nixon v. McKinney, ' Chad wick v. Fonner, 69 N. Y. 404 ; 
 
 105 N. C. 33 ; Beardslee v. Reeves, 76 Hammond v. Schultze, 55 N. Y. Super. 
 
 Mich. 661. Ct. 611. 
 
 »Todd V. Vaughn, 90 Hun, 70. spotts v. Mayer, 86 N. Y. 303. 
 
 <Markell v. Benson, 55 How. Pr. SMerritt r. Carapbsll, 79 N. Y. 625. 
 
■166 EULES OF EVIDENCE. 
 
 party who is incompetent to testify calls out upon the cross- 
 examination of the adverse party facts in regard to the transac- 
 tion to which he is incompetent to testify does not allow him 
 to be examined as to such prohibited fact.^ The fact that the 
 objecting party called the witness to testify to competent mat- 
 ter is not a waiver of his right to object to the other party 
 calling out incompetent testimony of the witness upon cross- 
 examination.^ So the fact that upon cross-examination de- 
 tails are called out relating to transactions with the decedent, 
 which have been generally stated upon his direct examination/ 
 is not a waiver by the party so cross-examining of his right to 
 have the whole testimony stricken out as incompetent.' 
 
 An officer of a mutual life insurance corporation is not " in- 
 terested in the event " of an action against such corporation 
 so as to disqualify him from testifying as to a personal trans- 
 . action with the other party to the action. The same rule ap- 
 plies to taxpayers of municipal corporations. The interest 
 which disqualifies is a direct legal interest in the event of the 
 action in which the witness is called to testify; and the fact 
 that the secondary or remote effect of the judgment may in- 
 directly affect the primary interest of the witness does not 
 disqualify him.* Shareholders in banks are competent to tes- 
 tify to personal transactions with the decedent in actions be; 
 tween the executor of such decedent and the banks.' It seems 
 that in New York a shareholder in a stock corporation cannot 
 testify in its behalf as to a personal transaction with the rep- 
 resentative of a deceased party.* But the rule is different in 
 most jurisdictions.' 
 
 A receiptor to a public officer for money found on the person 
 of a lunatic under a promise to apply it to the lunatic's use, is 
 a person deriving title to the fund from, through or under the 
 lunatic ; ^ and the prohibition is not limited to the particular de- 
 
 1 Miller v. Adkins, 9 Hun, 9 ; Corn- 6 Keller v. West B. & C. M. Co., 39 
 ing V. Walker, 100 N. Y. 547. Hun, 348 ; Geo. H. Kitchen & Co. v. 
 
 2 Barton v. Scramling, 31 Hun, 467. Taylor, 14 N. Y. State Rep. 398. 
 
 3 Miller v. Montgomery, 78 N. Y. ' ' New Jersey Trust & S. D. Co. v. 
 282; Kerr v. McGuire, 38 id. 446. Camden S. D. & T. Co., 58 N. J. L. 
 
 4Boffle V. Supreme T. of K. of M., 196 ; Banking House v. Rood, 132 Mo. 
 
 79 N. Y. State Rep. 1096. 256. 
 
 'Montgomery County Bank v. speters v. Peters, 3 Misc. (N, Y.) 
 
 Marsh, 7 N. Y. 481. 264. 
 
COMPETENCY OF WITNESSES. 16T 
 
 cedent from wlicitn the adverse party directly took his title, but 
 extends to any decedent from whom the adverse party took his 
 title, though through one or more conveyances.' In an action 
 by a widow to obtain possession of real estate against purchas- 
 ers under an execution sale of the property as the husband's, 
 she may testify that her husband purchased it in his own name 
 with her money.^ A cestui que trust cannot testify against one 
 claiming under his deceased trustee.' In an action by A. against 
 B. to recover money which C. has received of B. for A. and 
 has wrongfully given to B., C. may testify in behalf of A. as 
 to the transaction with B., deceased, since B. did not derive 
 title from D. ; but B. is disqualified from giving like testimony, 
 as plaintiff claims under T)} Where a paper executed by de- 
 ceased under which plaintiff claims is in the possession of the 
 defendant, who refuses to produce it, plaintiff may prove its 
 contents by a party to the instrament.' A party may testify 
 that he had no conversation with deceased,'' or that a transac- 
 tion with deceased never took place.' He. cannot testily that 
 he lost a note executed by deceased.^ An interested witness 
 may testify to decedent's book entries ' and to decedent's hand- 
 writing,'" and that he found a letter on his desk in the deceased's 
 handwriting.'' The husband of a residuary legatee of person- 
 alty in an alleged lost will is incompetent to testify that it was 
 in possession of the testatrix the day before her death.'^ An 
 interested party rjiay testify that the indorsement of decedent 
 was on the note when it was delivered to him,'' and the prin- 
 cipal debtor on the note may testify to an extension of time 
 by the deceased payee by which a surety was discharged.'* An 
 interested party in an action against decedent's estate cannot 
 testify as to the contents of destroyed letters written by the 
 deceased to him.'^ A party cannot testify that he saw deceased 
 
 1 Pope V. Allen, 90 N. Y. 298. , 9 Keener v. Zortman, 144 Pa. St. 179. 
 
 2 Young V. Scarfe, 153 Pa. St. 353. wPorbee v. Pritchard, 112 N. C. 88; 
 
 3 Walton V. Hinnau, 146 Pa. St. 396. Sankey v. Cook, 82 Iowa, 125, 
 iReddick v. Keesling, 139 Ind. 138; "Wing v. Bliss, 28 N. Y. State Rep. 
 
 Mason v. Pendergast, 128 N. Y. 080. 198. 
 
 5 Orr V. Clark, 62 Vt 136. 12 Rg Valentine's Will, 93 Wis. 45. 
 
 « Griffin V. Earle, 34 S. 0. 246. 13 Lawyer v. Choate, 92 Wis. 533. 
 
 'Andrews v. Hunt, 7 Mackey, 311. "Shuten v. Walters, 118 N. C. 495. 
 
 8 Montague v. Thomason, 91 Tenn. 'sgcarbough v. Blackman, 108 Ala. 
 
 168. 656. 
 
168 KULES OF EVIDENCE. 
 
 sign a paper,^ nor that he carried an inkstand with him when 
 he had a personal interview with deceased.^ In proceedings 
 for "the settlement of an executor's account, he cannot testify 
 to conversations with his testator concerning the basis of the 
 claim of a third party against the estate which had been paid 
 by him and for which he is seeking to be allowed credit as 
 against residuary legatees;'' and upon the trial of an action by 
 an executor against the members of a firm to which the testa- 
 tor had loaned money, to recover the amount of such loan, one 
 of the defendants cannot testify that the testator had subse- 
 quently delivered the notes representing the loan to him as a 
 gift, notwithstanding the executor had testified that he knew 
 that testator lent money to the firm, and he had called one 
 of the members of the firm to testify to the giving of the notes 
 to testator, and the delivery to him as security of an insurance 
 policy which^was put in evidence by the executor.* A defend- 
 ant in an action by an executor and others jointly interested 
 with the intestate is not incompetent to testify to a conversa- 
 tion between himself and intestate and such other plaintiffs.' 
 § 21. Interested third persons. — One interested in the re- 
 sult of a suit which is in effect between the estates of two 
 deceased persons, although brought against an executor in- 
 dividually because of her right to share in the estate of one of 
 the deceased persons, cannot testify to facts equally within the 
 knowledge of the other deceased person." But the mother of 
 an alleged illegitimate child has "no interest in the event" 
 which makes her incompetent to testify to the fact of her 
 marriage with the father, in an action by the son to enforce 
 his claim as an heir of the father.' And in an action upon an 
 alleged promise of a deceased person to pay for taking care 
 of a bastard child of which he had been adjudged the father, 
 the mother is not interested in the event of the action so as 
 to be incompetent to testify as to a conversation between 
 plaintiff and the deceased.' In an action on a claim against 
 
 1 Smith V. Sargent, 3 Hun, 107. « Penny v. Ciyul, 87 Mich. 15, 44 
 
 2 Dubois V. Balier, 30 N. H. 353. Alb. L. J. 325, 13 L. R A. 83. 
 'Matter of Smith, 158 N. Y. 124. 'Eisenlord v. Clum, 44 Alb. L J. 
 * Rogers v. MoGuire (N. Y.), 47 N. 66, 126 N. Y. 553, 38 N. Y. State Rep. 
 
 E. Rep. 452. 446. 
 
 5 Johnson v. Townsend, 117 N. C. 8 Connelly v. O'Connor, 36 N. Y. 
 338. State Rep. 840, 117 N. Y. 91. 
 
COMPETENCY OF WITNESSES. lt)9 
 
 an estate, a witness may testify in behalf of plaintiff notwith- 
 standing he has a suit pending against the estate on a similar 
 claim.' So one who is surety on a note given by a decedent's 
 husband, who loaned the money obtained upon the note to the 
 decedent, is competent as a witness to testif3'' to the transac- 
 tions in favor of the husband against the wife's estate.'^ It 
 has been said that the devisee in a suppressed will is not in- 
 competent to testify, in proceedings to probate an earlier will 
 contested by him, as to conversations with the testator in re- 
 gard to the former, but he would be incompetent as to state- 
 ments of a deceased devisee in a valid will, in proceedings for 
 the probate of the same.' The maker of a note for the ac- 
 commodation of a deceased indorser is competent to testify, 
 in an action thereon against the representative of the latter 
 to which he is not a party.* One is competent to testify where 
 the proceedings cannot be used in his favor, although he is in- 
 terested in the question at issue, and may contest the same 
 question in some future action brought by him;' and it is said 
 that an heir at law of two intestates, whose share in both es- 
 tates is the same, is not disqualified by interest as a witness in 
 a controversy between the two estates.* The surety on an 
 indemnity bond to the sheriff, given to indemnify him, is in- 
 competent to testify in an action brought by the representa- 
 tive of a person who claims to own the property.' The execu- 
 tion defendant is not incompetent to testify that he sold the 
 property in question to the claimant before the levy, where 
 the action is against the administrator of the execution plaint- 
 iff.' It seems that a trustee is incompetent, in a suit by the 
 beneficiaries against surviving partners, to testify to a transac- 
 tion between himself and deceased, to show notice to the firm 
 of the trust in property which he transferred to it.' In some 
 jurisdictions the husband of a woman who is incompetent to 
 testify is also incompetent.'* A surety on a guardian's bond is i 
 incompetent, in an action by the wards against the estate of a 
 
 1 Warren v. McGill, 103 Cal. 153; scrothers v. Crothers,40 W. Va. 169. 
 
 Baxter v. Baxter, 13 App. Div. 65. « Baker v. Updike, 155 111. 54. 
 
 2Ee Spotts' Estate, 156 Pa. St. 281. "> Kyte v. Foran, 167 Pa. St. 252. 
 
 'Re Lambie's Estate, 97 Mich. 49. 8 Smith v. Rishel, 164 Pa. St 181. 
 
 * Morris v. Birmingham Nat. Bank, ' Morgan v. Johnson, 87 Ga. 383. 
 
 93 Aia. 511. wStodder v. Hoffman, 158 111. 486. 
 
170 . EDLES OF EVIDENCE. , 
 
 decedent who i-eceived certain mone}' from the guardian, to 
 testify to conversations with such decedent tending to show 
 that the decedent took it knowing that it belonged to the 
 wards. But it is said that the guardian is not disqualified to 
 testify in such action that such decedent took it knowing that 
 it belonged to the wards, as his interest is evenly balanced.' 
 Interest to disqualify a witness must be a present, certain and 
 vested interest, and not an interest uncertain, remote or con- 
 tingent ; and the mere fact that his liability or freedom from 
 liability depends upon a question on which his testimony bears 
 does not disqualify him, where the record in the action could 
 not be used as legal evidence either for or against him in some 
 other suit.^ It is said that a party to a contract with a, de- 
 ceased person as well as to- a cause of action against his estate 
 is incompetent to testify in the case.^ 
 
 § 22. Assignors, grtintors, etc., of parties as witnesses.— 
 A person from whom a party to an action acquired his title 
 or cause of action against the estate of a deceased, person is 
 incompetent as a witness for such party in respect to a trans- 
 action with the deceased person.* Thus, a lessee and his as- 
 signee are not corhpetent witnesses in an action by the assignee 
 against the successors of the lessors, one of whom is deceased, 
 to testify to matters which occurred in the life-time of the de- 
 ceased lessor ; ^ and the person named as grantor in a deed is 
 incompetent to prove that the deed is a forgery in a suit 
 brought after the grantee's death against those clainaing there- 
 under, though the entire transaction in which the alleged deed 
 was given occurred in the absence of the deceased, and he was 
 represented thereat by an agent who is living and is a compe- 
 tent witness.^ So the grantee in an alleged deed signed by 
 several makers is incompetent to testify, in an action to estab- 
 lish the deed by one to whom he sold the premises, with cove- 
 nants of title, against the sole surviving maker and the heirs 
 of the other makers, to the genuineness of the signature of the 
 
 1 Crawford v. Parker, 96 Ga. 156. Sublett v. Hodges, 88 Ala. 491 ; Carey 
 
 2 Adams v. Internal Improvement v. Carey, 104 N. C. 171. 
 
 Fund, 37 Fla. 266. 'Duffield v. Hue, 106 Pa. St 603; 
 
 8 Nowaok V. Berger, 133 Mo. 24, 31 Shaak v. Meily, id. 161. 
 
 L.R A. 810. 6 Sutherland v. Ross, 140 Pa. St 
 
 4 Shields v. Smith, 104 N. C. 57; 379. 
 
COMPETENOT OF WITNESSES. 171 
 
 deceased maker.' It seems that one to whom a deed was de- 
 livered by the grantor, to be delivered by him to the grantee 
 after the grantor's death, is, in a suit by the grantee after the 
 death of the grantor, to recover possession of the deed, incom- 
 petent to testify to what took place between him and the 
 grantor regarding the delivery to the plaintiff.^ It has been 
 said that the grantor in a warranty deed to the ancestor of 
 the plaintiffs in an action of ejectment is competent to testify 
 therein for the defendant that the deed was not delivered.^ In 
 a suit on a note by the indorsee of the original payee, who is 
 deceased, the maker is competent to testify that he paid the 
 npte to deceased payee.'' The obligor in a bond for title is 
 competent to testify to communications between himself and 
 the deceased obligee, in a contest between two claimants under 
 such obligee.' So the mortgagor in an action of replevin by 
 the mortgagee's administrator, alleging title under the mort- 
 gage against a party deriving title from the mortgagor, may 
 testify that the note which the mortgage was given to secure 
 was without consideration.^ 
 
 § 23. Heirs, legatees, distributees, etc., as witnesses. — 
 The testimony of one who appeared as a contestant of a will, 
 as to personal transactions and communications with testator, 
 is incompetent, although she subsequently withdrew as a con- 
 testant, and also withdrew her appearance," where she had at 
 ^11 times appeared to desire the defeat of the will, and there 
 is no proof whether her share under the will, or in case of in- 
 testacy, would be the more valuable.' Where. the probate of 
 a will is contested, legatees under it are not competent wit- 
 nesses for the proponent as to personal transactions or com- 
 munications between them stnd the testator. Where, however, 
 a legateee has executed a valid release of all his interest, the 
 
 1 Neely v. Carter, 96 Ga. 197. 5 Wood v. Wood, 25 S. C. 600. 
 
 2 Lyon V. Ricker, 141 N. Y. 235; « Wilson v. Russell, 61 N. H. 354. 
 Paxton V. Paxton, 38 W. Va. 616; Re 'Re Lasak's Will, 131 N. Y. 624, 
 Irwin's Estate, 160 Pa, St. 83. 43 N. Y. State Rep. 101 ; Baker v. 
 
 3 Harrison v. Penny, 86 Ga. 813 ; Updike, 155 111. 54 ; Miller v. Meers, 
 Young V. Cunningham, 57 Mich. 153 ; 155 111. 384 ; Jones v. Bank of Car- 
 De Coursey v. Johnston, 134 Pa. St. rollton, 71 Miss. 1033 ; Kyte v. Foran, 
 338. 167 Pa. St 253 ; Jones v. Emory, 115 
 
 <Cole V. Gardner, 67 Miss. 670. N. 0. 158. 
 
172 EULES OF EVIDENCE. 
 
 disability is removed;' and the simple expression of dissent 
 by the donee of a legacy of personal property, though only 
 by parol, is sufficient to avoid the gift and render him compe- 
 tent as a witness upon the probate of the will.^ A beneficiary 
 under and proponent of a will is not incompetent to testify to 
 testatrix's declaring to the subscribing witness that it was her 
 will, and that she went to her desk and signed it in the pres- 
 ence of the witness.-' A widow who claims as her own land 
 of which her husband's heirs ask partition as belonging to him 
 is not a competent witness in her own behalf.* But an heir 
 interested in an estate is competent, in an action by the ad- 
 ministrator against the administrator of a deceased debtor to 
 recover a debt due the estate, to testify to the handwriting of 
 his ancestor in book entries.' Witnesses who are both heirs and 
 devisees of a testator may testify in behalf of the contestants in 
 a contest of the will, where it does not appear that their interest 
 is with the contestants.' In an action by an administrator to 
 set aside an assignment of property by his decedent, a defend- 
 ant of record not a necessary party to the action, who is one of; 
 the decedent's legatees, is a competent witness for the defense.' 
 It is said that a party claiming dower is a competent witness 
 in an action for such dower against the devisees under the tes- 
 tator's will;' and in an action by a widow claiming her dower 
 right against an alleged grantee of her deceased husband, she 
 may testify concerning any matters which were equally within 
 the knowledge of the deceased.' 
 
 § 24. Agents and representatives as witnesses. — The stat- 
 ute declaring parties to actions and persons interested in the 
 event thereof incompetent to testify to conv^ersations with, or 
 admissions of, deceased persons relative to matters in issue, is 
 in some jurisdictions inapplicable to an agent not himself a 
 party to the action nor having any legal interest in it.'" Bat 
 
 1 Loder v. Whelpley, HI N. Y. 239, 5 Keener v. Zartman, 144 Pa. St 179. 
 
 19 N. Y. State Rep. 631 ; Re Dunham's « Campbell v. Campbell, 130 111. 466, 
 
 Will, 31 id. 858, 131 N. Y. 575. 6 L. R A. 167. 
 
 2 Re Berrien's Will, 58 Huu, 610, 35 'Walker v. Steele, 121 Ind. 436. 
 
 N. Y. State Rep. 355. 8 Smith v. Smith, 52 N. J. L. 207. 
 
 'Re Bernsee's Will, 63 Hun, 628; 'Lake v. Nolan, 81 Mich. 118. 
 
 45 N. Y. State Rep. 11, 17 N. Y. Supp. w Whitman v. Foley, 125 N. Y. 657, 
 
 C69 ; Hiish v. Auer, 146 N. Y. 13. 36 N. Y. State Rep. 878 ; Darwin v. 
 
 ■• Lancaster v. Blaney, 140 III. 203. Keigher, 45 Minn. 64 ; Mead v. Weaver, 
 
COMPETENCY OF WITNESSES. 173 
 
 the cashier of a bank is not a disinterested witness whose tes- 
 timony as to the transactions conducted by him is to be re- 
 garded as controlling if not contradicted, where he was the 
 financial agent of the bank and an owner of a large amount 
 of its capital stock.' An administratrix who has resigned 
 after commencing an action may be a witness for her succes- 
 sor, who has been substituted in her place, as to a transaction 
 with or statement by the intestate of the defendant adminis- 
 trators.' In sorne jurisdictions a person who acted as agent 
 in the making of a contract is incompetent to testify for his 
 principal after the death of the other party ; ' but a party to 
 whom property is delivered as a trustee for the donee in a gift 
 causa mortis is not an agent of the donee so as to render him 
 incompetent to testify in regard to the transactions after the 
 death of the donor.^ In some jurisdictions a party to a con- 
 tract made with a contracting agent of the other party is 
 incompetent after the agent's death to testify as a witness 
 touching transactions had with the agent.' 
 
 §25. Effect of prior testimony on other side. — An elec- 
 tion to testify by an executor or representative who is a party 
 to the salt as to a personal conversation or transaction with 
 the decedent makes it .competent for the adverse party to 
 testify to the same transaction.' But to render a party com- 
 petent to testify to a personal transaction with a deceased 
 person under whom his adversary claims, by testimony of the 
 latter, regarding such a transaction, the two transactions must 
 appear to be the same.'' A plaintiff's executor may testify 
 simply to identify the account books of the deceased without 
 admitting the defendant to testify generally' in the case.' And 
 
 42 Neb. 149; Mayor v. Old, 57 Mo. t. McDonald, 87 Ala. 737; Eaybourn 
 
 App. 639. V. Mason Lumber Co., 57 Mich. 273 ; 
 
 ' Canajoharie Nat Bank v. Diefen- Trunkey v. Hedstrom, 181 111. 204. 
 dorf, 123 N. Y. 191, 42 Alb. L. J. 472, ewilcox v. Corwin, 117 N. Y. 500; 
 
 33 N. Y. State Rep. 389. Dow v. Merrill, 65 N. H. 107. 
 
 2Snyderv. Fielder, 139 U.S. 479. 'Brown v. Burgett, 61 Hun, 638, 
 
 8 Piper V. Fosher, 131 Ind. 407; La 40 N. Y. State Rep. 564; Re Roth's 
 
 Prad V. Sherwood, 79 Mich. 530. Estate, 150 Pa. St. 261 ; Caple v. Mc- 
 
 < Devol V. Dye, 123 Ind, 321, 7 L. R Clintock, 10 Ind. App. 563 ; Hackstaff 
 
 A. 439. V. Hackstaflf, 83 Ilun, 16; Irwin v. 
 
 » Wendover v. Baker, 121 Mo. 373 ; Patchin, 164 Pa. St. 51. 
 McCormick Harv. Mach. Co. V. Heath, 'Sheehan v. Hennessey, 65 N. H. 
 
 65 Mo. App. 461 ; Mobile Savings Bank 101. 
 
174 RULES OF EVIDENCE. 
 
 putting a document shown to have been signed by the dece- 
 dent in evidence does not make the adverse party a competent 
 witness as to such document.^ A party is a competent witness 
 in his own favor as to such matters as were testified to in a 
 deposition of the adverse party taken in the latter's behalfj 
 where he dies before trial, whether such deposition is or is not 
 offered in evidence.^ The examination by the plaintiff of the 
 defendant as to matters not prohibited by the statute concern- 
 ing evidence of transactions with a deceased does not entitle 
 the latter to testify as to personal transactions with the plaint- 
 iff's deceased ancestor as to matters involved in the action.' 
 And where a claimant against a decedent's estate makes the 
 executrix his own witness, it does not make him competent to 
 testify to the transaction where his testimony is otherwise inr 
 competent.* 
 
 Where an opposite party calls defendant to account, his ac- 
 count under oath is competent though it relates to transactions 
 with deceased ; ' and where deceased's representatives testify 
 to a conversation or transaction between deceased and the op- 
 posite party, the latter may also, it seems, testify in relation 
 thereto.* The answering by an executrix on cross-examination 
 as to testator's conversation with plaintiff does not enable 
 plaintiff to testify as to it. So the cross-examining of defendr 
 ant as to the contents of a writing from plaintiff, since deceased, 
 does not make the defendant competent to testify as to con- 
 versations with plaintiff concerning the writing. Where a de- 
 ceased's representatives call out a part of a transaction with 
 deceased on direct examination, the opposite party on cross- 
 examination is entitled to the whole.' So where an executor 
 in his own behalf testifies to a transaction with deceased, the 
 opposite party may be a witness as to all transactions with 
 deceased pertinent to the case.^ So, as we have seen, where 
 
 1 Canister's Estate, 154 N. Y. 13, Dan. Ch. Pr., § 1230; Page v. Whed- 
 47 N. E. Rep. 268. . den, 59 N. H. 507 ; Robinson v. Janes, 
 
 2 Leahy v. Rayburn, 33 Mo. App. 29 W. Va, 224. 
 
 55. But the contrary is held in Allen « Wilcox v. Corwin, 117 N. Y. 500. 
 
 V. Chouteau, 101 Mo. 309. . 'Nay v. Curley, 113 N. Y. ,575; 
 
 3 Hopkins v. Bowers, 108 N. C. ,298. American Sav. Bank v. Harrington, 34 
 * Herrington v. "Winn, 60 Hun, 335, Neb. 597. 
 
 38 N. Y. State Rop. 83, 14 N. Y. Supp. s Matthews v. Hoagland, 48 N. J. 
 613. Eq. 455, 
 
 SBovven V. Bowen, 17 R. 1 738; 3 
 
COMPETENCY OF WITNESSES. 175 
 
 the testimony of a deceased on a former trial is put in evi- 
 dence by his representatives, the opposite party may testify 
 as to the ifiatters to which the testimony of the deceased party 
 relates.^ So it has been said that the same rule applies where 
 such evidence is taken de lene esse to be used ;^ and it is said 
 that where a party is questioned by the heirs, etc., of de- 
 ceased as to matters equally within the knowledge of deceased, 
 such party may testify in explanation of the matters drawn 
 out.' And while a party cannot testify that any particular 
 conversation testified to by a witness as having taken place in 
 his presence between the party and the deceased did not take 
 place, he may testify to facts and circumstances which tend to 
 show that such witness testified falsely, or that it was impossi- 
 ble that his statement can be true ; that is to say, that the wit- 
 ness was never present at the place specified when any conver- 
 satidn occurred between plaintiff and deceased; nor is such 
 party precluded from testifying that the interview did not 
 occur at the place named by the witness.* Where the plaintiff, 
 in an action on behalf of the estate of the deceased, to prove 
 that money of the decedent which had been paid to the de- 
 fendant by check was a loan, calls defendant and asks him if 
 at the time of the transaction the decedent owed him any 
 money and he answers " No," this opens the door for the de- 
 fendant to be called and examined on his own behalf as ta 
 what took place in that transaction between him and the dece- 
 dent.^ But the prohibition of the statute cannot be avoided 
 hj putting a question which does not purport to allude to any 
 particular transaction, but the answer to which must affirm or 
 deny having a transaction, in a manner which even indirectly 
 will raise or rebut an inference as to some material element 
 therein.^ 
 
 § 26. What is not a personal transaction. — Testimony 
 that a witness saw a person, since deceased, at a certain place, 
 at a specified time, is not within the prohibition of the law. 
 In some jurisdictions it is said that the evidence of witnesses 
 as to conversations between a deceased person and another, in 
 
 ■1 Allen V. Choteau, 103 Mo. 309; ^Nay v. Curley, 113 N. Y. 375. 
 
 Potes V. Myer, 86 N. Y. 302. 6 Tooley v. Bacon, 70 N. Y. 34 ; Mav- 
 
 2Hayden v. Grill, 43 Mo. App. 1. erick v. Marvel, 90 id. 656 ; Koehler v. 
 
 SDunlap v. Dunlap, 94 Mich. 11. Adler, 78 id. 287; Lerche v. Brasher, 
 
 4 Pinney v. Ortli, 88 N. Y. 447. 104 id. 157 ; Clift v. Moses, 113 id. m. 
 
176 KDLE8 OF EVIDENCE. 
 
 which they state they took no part, is not made inadmissible 
 by the fact that their testimony was pre-arranged so as to 
 escape the statute.' The owner of personal property is not 
 incompetent to testify to its value in an action against an ex- 
 ecutor for its conversion by his testator.^ But such witness is 
 incompetent to testify as to the contents of a box in which was 
 the property converted. Testimony that a person obtained a 
 deed from a room in which were three persons, one of whom 
 has since died, is not evidence of a personal transaction with 
 the latter, though the deed was from him, when nothing is 
 said as to any action by him or any conversation with him.' 
 But the payee of a note executed by a person since deceased 
 is incompetent to testify in a suit thereon against the personal 
 representatives of the decedent that the note was never paid.* 
 So in an action on account against the personal representatives 
 of a decedent, the plaintiff's evidence is not competent to es- 
 tablish the correctness of his books of account, so as to make 
 entries therein against the decedent admissible in evidence.' 
 Testimony of a defendant in an action to set aside as fraudulent 
 as to creditors an assignment to him of a life policy by his 
 brother, since deceased, as to what sums of money he paid to 
 third persons on deceased's account, is not incompetent as tes- 
 timony to a transaction between deceased and himself.' And 
 testimony of plaintiff in a suit upon a note against the estate 
 of a deceased person, that she had the notes in her possession 
 prior to and at the death of the decedent, is not inadmissi- 
 ble as relating to a personal transaction with the deceased;' 
 neither is a statement of one suing executors on a note which 
 purported to have been executed by their testator, that she 
 has lost it;* nor are letters dictated by a person since deceased 
 to his wife, to be transmitted by her to the person to whom 
 they were addressed, and who contests his will.' , And where 
 
 1 Simonds v. Partridge, 154 Mass. * Davis v. Seaman, 64 Hun, 572, 46 
 600. N. Y. State Rep. 810. 
 
 2 Gregory v. Fitchner, 43 Alb. L, J. 6 Watts v. Warren, 108 N. C. 514; 
 517. Williams v. Mower, 35 S. C. 209; 
 
 3 Greer v. Greer, 58 Hun, 351, 34 Brice v. Miller, id. 537. 
 
 N. Y. State Rep. 448. ' Mortimer v. Chambers, 63 Hud, 
 
 * McMurray v. McMurray, 63 Huu, 33o, 43 N. Y. State Rep. 865. 
 
 483, 45 N. Y. State Rep. 2: Meyer v. schoate v. HuflF, 83 Tex. 278. 
 
 Hunt, 38 id. 739, 60 Hun, 579; Simp- 9 Re Budlong's Will, 54 Hun, 131. 
 
 eon V. Simpson, 107 N. C. 553. 26 N. Y. State Rep. 863. 
 
COMPETENCY OF WITNESSES. 177 
 
 it is proved that parties were induced by the representatives 
 of a decedent to enter into a prejudicial agreement, proof of 
 their state of mind as to belief in or reliance upon such rep- 
 resentations is not incompetent.' A personal transaction with 
 a decedent includes the delivery of a deed by him, or proof 
 that it was received from the post-office bearing a post-mark 
 indicating that it was transmitted by him.^ 
 
 While of course it is not competent for a party, when called 
 as a witness in his own behalf against one representing a de- 
 ceased person, to testify affirmatively as to any transaction 
 had personally with such deceased person, or whether a par- 
 ticular interview between them took place or not, unless his 
 adversary is first examined in reference thereto, yet this does 
 not necessarily exclude the evidence of the surviving party 
 when it tends to negative or affirm the existence of such trans- 
 action or communication. The object and intent of the re- 
 striction placed upon the survivor of those engaged in personal 
 dealings and transactions from giving evidence in relation 
 thereto will be accomplished if it is limited to cases which pre- 
 clude him from giving such evidence when it is offered for the 
 purpose of establishing an affirmative cause of action or de- 
 fense. It is difficult to lay down a rule which will cover all 
 possible transactions ; but it is safe to say, when a party gives 
 material evidence as to extraneous facts which may or may 
 not involve the negative or affirmative of the existence of a 
 personal transaction or communication with a deceased person, 
 that the adverse party, although precluded from directly prov- 
 ing the existence of such communication or transaction, may 
 give evidence of extraneous facts tending to controvert his 
 adversary's proof, although those facts may also incidentally 
 involve the negation or affirmation of such personal communi- 
 cations or transactions. 
 
 § 27. Illustrations. — In Wadsworth v. Heemans' the plaint- 
 iff was allowed to ask of himself as a witness: "At the time 
 you left those bonds in the safe was the name of Mr. Fellows 
 in either of these indorsements?" and also "Was the name 
 of Joseph Fellows anywhere on those instruments?" In 
 
 'Hard v. Ashley. 28 N. Y. State 'Howard v. Zimpleman, 80 Tev 
 Rep. 601, 117 N. Y. 606. 531. 
 
 3 85N. Y. 639. 
 13 
 
178 HCLES OF EVIDENCE. 
 
 that case the court say : " "We do not think the inquiry in- 
 volved any personal transaction between Hill and Fellows. 
 It respected merely the condition of the bonds. It neither 
 aiBrmed nor negatived any personal transaction between the 
 two. The insertion of his name in the blank might well have 
 been the separate and independent act of Fellows, and not, 
 in and of itself, a personal transaction between the two. We 
 must enforce the rule fairly, but draw the line somewhere." 
 In Saratoga Co. Bank v. Leach' the defendant was shown 
 the note in suit and asked : " Is the signature to this paper, 
 marked 'A,' your signature? " In Burrows v. Butler ^ a party 
 was allowed to testify to the value of services which he ren- 
 dered for decedent. The word " transaction " does not em- 
 brace all the occurrences which go to make up a cause of 
 action, but only such as must have been communicated to the 
 deceased person to give them effect. In Denise v. Denise,' in 
 an action to recover from the representatives of a deceased 
 for board, etc., the plaintifif was asked : " From the date of 
 your marriage to the 16th day of November, 1874, who pro- 
 vided the necessaries for the house and the support of the 
 family?" and was allowed to answer: "We both did it; he got 
 some things and I got the rest." In that case the court say: 
 " We do not think the question was open to the objection that 
 it necessarily called for the version of transactions between 
 herself and decedent. It does not really or by the ordinary 
 construction involve a personal transaction between the plaint- 
 iff and the intestate. It is the statement of a fact of which 
 the witness had knowledge, not a transaction between her and 
 deceased." In Yiall v. Leavens* it was held that a party 
 eould testify that she had the custody of the deed executed 
 by deceased both before and after its acknowledgment and 
 down to the time of trial. In Carroll v. Davis ^ the plaintiff 
 was allowed to state that he had examined the account book 
 of the deceased, which was shown to have been lost, and that 
 he saw therein and read an entry in the handwriting of the 
 deceased, and to state the contents. In Sager v. Dorr,* in an 
 
 1 37 Hun, 836. 5 9 Abb. N. C. 60. 
 
 2 88 Hun, 157. 651 Hun, 643, 21 N. Y. State Kep. 
 
 3 41 Hun, 9, 18 N. Y. State Eep. 876. 635. 
 * 39 Hun, 291. 
 
e 
 
 COMPETENCY OF WITNESSES. 179 
 
 action for board furnished deceased, the defense was that de- 
 ceased paid for household supplies in return for board. Plaint- 
 iff was allowed to testify that she paid for the supplies her- 
 self. In Ee Merchant's Estate ' it was held that evidence of 
 what a person did or did not, apart from personal transactions 
 with deceased, was competent. So in Gregory v. Fichtner,^ 
 in an action for the conversiou by decedent of a stock of 
 goods, the plaintiff was allowed to testify as to its value. So 
 in Whetmore v. Peck' it was held that a physician's books 
 were competent to show services to deceased, though relat- 
 ing to a personal transaction. In Blaesi v. Blaesi* the de- 
 fendant was allowed to answer the question: "Was there 
 ever a deed in that desk from you to Wm. Blaesi?" Also, 
 " Did you ever appear before Mr. Litz, the commissioner of 
 deeds, or anyone else, to acknowledge a deed?" In Bedfield 
 V. Stitt ' the plaintiff was allowed to state that he had never 
 seen the note in suit. In Price v. Brown ^ the plaintiff was 
 allowed to state that she had, at the time stated, in her pos- 
 session the bonds in question. In Shell v. Muir ' it was held 
 that a plaintiff who was an attorney had a right to state the 
 number of days he worked upon the case. In Strough v. 
 Wilder^ it was held that a defendant could testify that he 
 had occupied the property, rented it and collected the rents 
 since 1855; also that he had been in possession of the deed 
 since that time, and that the condition of the deed has been 
 the same as it was at the time of the trial. In Simmons v. 
 Havans " the plaintiff was allowed to testify that she had the 
 deed in her possession and that the signature was in the hand- 
 writing of her mother. In Wing v. Bliss ^'' it was held that a 
 party could testify that he had seen deceased write ; that the 
 letter, check and envelope were in the deceased's handwrit- 
 ing, and that on a certain day he found all these papers on his 
 table. In Hard et al. v. Ashley et al." it was held that, where 
 
 1 3 N. Y. Supp. 875. 8 119 N. Y. 530, 33 N. Y. State Rep. 
 
 2 38 N. Y. State Rep. 193, 14 N. Y. 481. 
 
 Supp. 891. 9101N. Y. 437. 
 
 319 Alb. L. J. 400. i»55 Hun, 603, 38 N. Y. State Rep. 
 
 « 15 N. Y. State Rep. 673. 198. 
 
 5 10 N. Y. State Rep. 367. " 117 N. Y. 606, 38 N. Y. State JJep. 
 « 113 N. Y. 677, 5 N. Y. State Rep. 9. 601. 
 7 33N.Y. State Rep. 839. 
 
180 EITLES OF EVIDENCE. 
 
 it was shown that a decedent made certain representations to 
 a party 'to an action, such party may testify as to whether 
 those representations were believed in and relied upon by him 
 when the agreement in suit was made ; that it was a fact which 
 the deceased could not have known or testified to himself. 
 
 Where a person brings an action to recover land owned by 
 a person deceased, whom the plaintiff claims was his father, 
 his mother is a competent witness to prove a marriage be- 
 tween herself and the decedent. Such witness is not interested 
 in the event of the action by reason of her right to dower if 
 the marriage is established. The witness has no other inter- 
 est in the case than that which grows out of her right of 
 dower in the premises, and as to that the verdict in the case 
 would be no evidence in a suit to be brought by her for the 
 recovery of her dower, and hence she has but an interest in 
 the question, and not in the event of the action.^ 
 
 lEisenlord v. Clum, 136 N. Y. 55'i, 38 N. Y. State Rep. 446. 
 
CHAPTEE VI. 
 
 JUDICIAL NOTICE. 
 
 OP WHAT MATTERS COURTS WILIi 
 TAKE JUDICIAL NOTICE. 
 
 1. In general. 
 
 3. Public acts — What arel- 
 
 3. Common experience. 
 
 4. Charters, private statutes, etc. 
 
 5. Law of nations. 
 
 6. Matters taken notice of. 
 
 7. Matters not taken notice of. 
 
 § 8. OflSoial character, acts, dutiesy 
 etc. 
 9. Political divisions and geo- 
 graphical matters. 
 
 10. Statutes of other states. 
 
 11, Statutes as ground of action or 
 
 defense. 
 
 n. BAILBOAUS. 
 
 I. OF WHAT MATTERS COURTS WILL TAKE JUDICIAL NOTICE. 
 
 § 1. In general. — There are certain matters of which 
 courts will take judicial notice without putting parties to the 
 trouble and expense of proving thera.^ All civilized nations, 
 being alike members of the general family of sovereignties, 
 may well be supposed to recognize each other's existence and 
 general public and external relations. The public tribunals 
 and functionaries of every nation take notice of the existence 
 and titles of all the other sovereign powers in the civilized 
 world, their respective flags, and their seals of state. Public 
 acts, decrees and judgments, exemplified under this seal, are 
 received as true and genuine, it being the highest evidence of 
 their character.'' Courts must take judicial notice of a treaty 
 with a foreign government.' The courts of the United States 
 take judicial notice of all the public statutes of the several 
 states,* and the decision of the highest court of a state as to 
 the constitutionality of a state statute.'' Courts will take 
 judicial notice of the kind of currency in use; that gold is a 
 legal tender ; and of the value of American coin,* 
 
 <Gormley v. Bunyan, 138 U. S. 
 623 ; Ee Jordan, 49 Fed. Rep. 288. ' 
 
 5 Knox V. Columbia Liberty Iron 
 Co., 42 Fed. Rep. 378. 
 
 BDailey v. State, 10 Ind. 536; 
 Grant v. State, 89 Ga. 393. 
 
 1 Brenner v. Atlantic Dredging Co., 
 134 N. Y. 156; 46 Alb. L. J. 64; 45 
 N. Y. State Rep. 774 
 
 ^Coit V. MiUiken, 1 Denio, 376; 
 CJiurch V. Hubbart, 3 Cranoh, 187. 
 
 3 Ex parte McCabe, 46 Fed. Rep. 868. 
 
182 EULES OF EVIDENCE. 
 
 § 2. Public acts — What are. — Our courts take judicial 
 notice, without proof, of all public acts of the state, the same 
 as if their provisions had been set out in the pleadings;' bat 
 private acts, or acts that are confined in their operation to a 
 few persons and have no general application or effect, must, 
 if relied upon, be set forth in the pleadings and proved upon 
 the trial, the same as any other fact.^ Thus the courts cannot 
 judicially know the ordinances of a city.' Acts which affect 
 public rights, as acts giving authority to individuals or corpo- 
 rations to make erections or improvements in public naviga- 
 ble streams which affect the rights of navigation, fishery, or 
 any common public right, will be regarded as public acts, al- 
 though not specialljs made so in the act itself ; and the courts 
 take judicial notice of a charter when declared by the legisla- 
 ture to be a public act.* A special act of the legislature, ex- 
 tending the jurisdiction of a certain town constable throughout 
 the county or state, is such an act as courts are bound to no- 
 tice without proof;* and courts must take judicial notice of 
 the federal statute creating courts in the territories and defin- 
 ing their jurisdiction.' So of an act under which a person 
 claims the ofBce of a judge of a particular court.' So of an 
 act for the protection of fish in a certain river.^ So where an 
 act, otherwise private and local, contains provisions that are 
 public and general, the act, although partly local and partly 
 public, will be deemed a public act, which need not be pleaded 
 or proved.' Where a right, privilege or duty is given or im- 
 posed upon any person, natural or artificial, by a public act, 
 the courts will take judicial notice thereof.^" It has been held 
 that although an act may affect very many persons, yet, if it 
 
 ' state V. Higgins, 124 Mo. 640 ; v. Kelly, 133 U. S. 21 ; Burbridge v. 
 
 Newark t. Stout, 53 N. J. L. 35 ; Peo- Kansas City C. R Co., 36 Mo. App. 
 
 pie, Com. Mut. Ins. Co. v. N. Y. Tax 669. 
 
 Com'rs, 144 N. Y. 483 ; Thayer v. Boyd, s Levy v. State, 6 Ind. 281. 
 
 31 Neb. 682. « Coughran v. Oilman, 81 Iowa, 442. 
 
 2 Bowe V. City of Kansas, 51 Mo. ^ Burns v. Bloedel, 43 N. Y. State 
 454; Shanfelter v. Baltimore, 80 Md. Rep. 453; Clark v. Com., 29 Pa. St 
 483. 129. 
 
 3 Charleston v. Ashley Phosphate s Burn ham v. Webster, 5 Mass. 266. 
 Co., 34 S. C. 541; Central Sav. Bank "People v. McCann, 16 K. Y. 61; 
 V. Baltimore, 71 Md. 515 ; Kean v. Williams v. People, 24 id. 407. 
 Klausman, 21 Mo. App. 485 ; McDon- i" Tillman v. Coosaw Min. Co., 45 
 aid V. Lane, 80 Ga. 497. Fed. Rep. 804. 
 
 Foley V. State, 42 Neb. 233; Case 
 
JUDICIAL NOTICE. 183 
 
 is not equal and general in its application to all in the state 
 or locality to which it relates, it is a private act; but if it is 
 general in its effect and applies equally to all within the local- 
 ity to which it relates, it is a public act of which the court 
 will take judicial notice. Yet, whenever a purely private act 
 provides in certain events a forfeiture to the governraeat, or 
 in the case of a corporation that the government in a certain 
 contingency may take the property, they are deemed public 
 acts. And indeed all acts which in any wise concern the gov- 
 ernment or any of its co-ordinate branches may be said to be 
 public. So of all acts in amendment of acts declared public by 
 the terms of the original aot.^ The courts will take judicial 
 notice of the general laws under which a corporation was or- 
 ganized, and the liabilities and responsibilities to which a 
 stockholder is thereby subjected.* In short, the court takes 
 judicial notice of and determines for itself the law ; ' but the 
 courts of one state cannot take judicial notice of the statute 
 laws of another state.'' The public proclamations made by the 
 president have the force of public law, of which courts are 
 bound to take notice.* The same rule applies to the oiEcial 
 messages of the executive,^ and the official journals of the 
 houses of the general assembly," and of a census taken under 
 authority of the state or of the United States.^ 
 
 §3. Common experience. — Courts take judicial notice of 
 all matters that are part of the experience and common 
 knowledge of the day;^ as of the meaning of the word 
 "whisky ; " '" the customary abbreviations of Christian names ; '* 
 that the usual and appropriate symbols of nationality and 
 sovereignty are the national flag and seal ; that certain prov- 
 
 iBank of Utica v. Smedes, 3 Cow. 'Barnard v. Gall, 43 La. Ann. 959. 
 
 684 8 Adams County v. Cunningham, 
 
 2 Bosley v. National Mach. Co., 128 81 Wis. 440 ; People v. Wong Wang, 
 
 N. Y. 550, 34 N. Y. State Eep. 877. 93 Cal. 377. 
 
 'Norman v. Kentucky B'd of Man. 9 Cox v. Syenite Granite Co., 39 Mo. 
 
 of World's Fair Col. Expo., 93 Ky. App. 434 ; Pacific Exp. Co. v. Seibert, 
 
 537, 47 Alb. L. J. 190. 44 Fed. Rep. 310 ; Seamen v. Koehler, 
 
 4 Lloyd V. Matthews, 155 U. S. 233; 122 N. Y. 646; Re Lowman (1895), 2 
 
 Jackson v. Jackson. 80 Md. 176 ; Sam- Ch. 348 ; Alberty v. United States, 
 
 mis V. Wightman, 31 Fla. 10. 163 U. S. 499. 
 
 » Jenkins v. Collard, 145 U. S. 546. lOFrese v. State, 23 Fla. 267. 
 
 6 Wells V. Missouri P. R. Co., 110 "State v. Senn, 32 S. C. 393. 
 Mo. 386. 
 
184 EULES OF EVIDENCE. 
 
 inces are in a foreign country, and that they have govern- 
 ments and courts, and that their courts proceed according to 
 the common law ; ' and that the public acts, decrees and judg- 
 ments exemplified under their seal are true and genuine. If, 
 however, upon civil war in any country, one part of the na- 
 tion shall separate itself from the other and establish for 
 itself an independent government, the newly-formed nation 
 cannot without proof be recognized as such by the courts of 
 other nations until it has been acknowledged by the sovereign 
 power under which those courts are constituted.^ The first 
 act of recognition belongs to the executive function; but 
 though the seal of the new power, prior to such acknowledg- 
 ment, is not permitted to prove itself, yet it may be proved 
 as a fact by other competent testimony. The courts will take 
 judicial notice of the existence of such province, whether it 
 has been recognized by the government under whose jurisdic- 
 tion it acts or not.' The courts take judicial notice of wars 
 in which their government is engaged, whether domestic or 
 foreign ; * but not of articles of war unless published under 
 authority of the government.' They take notice of the legal 
 weights and measures.' The courts of the United States take 
 judicial notice of the ports and waters of the United States in 
 which the tide ebbs and flows ; of the situation of a port in a 
 foreign country, and what impediments, if any, exist at its 
 entrance, and whether vessels of a certain draft can enter it; 
 where the principal rivers of the state lie, and what towns 
 they lie in ; ^ of the geographical position of falls on public 
 navigable rivers, and whether there are or are not pilots ap- 
 pointed on it.' Judicial notice will be taken of the provisions 
 of a city charter which is made a public act.' 
 
 §4. Charters, private statutes, etc. — As a general rule, 
 charters of municipal corporations are held to be public acts, 
 whether so declared in the act creating them or not, and need 
 
 1 Lazier v. Wesoott, 26 N. T. 146. « United States v. Burns, 5 McLean, 
 
 2 United States v. Palmer, 3 Wheat. 23. 
 
 610. 'City Council of Montgomery v. 
 
 3 Taylor v. Barclay, 3 Simras, 213. M. & W. Planli-road Co., 31 Ala. 79. 
 < Bolder v. Huntingfleld, 11 Ves. ^Butcher v. Brownville, 3 Kan. 70. 
 
 293. 9 Burtenning v. Chicago, St Paul, 
 
 s Rex T. Withers, 5 T. E. 443. M. & O. E. Co., 46 Minn. 30. 
 
JUDICIAL NOTICE. 185 
 
 not be alleged in the pleadings,norproved on the trial, in ac- 
 tions where the provisions of such charters become material.' 
 But where municipal corporations are formed under a general 
 law, their organization and all the legal steps requisite to per- 
 fect their organization must be proved. So where, by the 
 terms of the charter, the question of acceptance is submitted 
 to the people, its acceptance by them must be duly alleged 
 and proved.^ By-laws of a municipal corporation are private 
 acts and will not be judicially noticed. But city courts or 
 courts of municipal corporations will take judicial notice of its 
 ordinances.' Charters of private corporations are private acts 
 unless made public by the terms of the act creating them. 
 
 § 5. Law of nations. — The public tribunals of all civilized 
 nations take notice of the law of nations and the general cus- 
 toms and usages of merchants. Foreign admiralty and mari- 
 time courts, also, being the courts of the civilized world, and of 
 co-ordinate jurisdiction, are judicially recognized everywhere; 
 and their seals need not be proved.* 
 
 § 6. Matters taken notice of. — Courts will judicially take 
 notice of a general custom of merchants throughout the 
 state,' or one so universal and general that persons are pre- 
 sumed to know of it;' and of the law merchant;' and of 
 commercial usage as to the days dies non, as Sundays and 
 Christmas;' and of public history affecting the whole state 
 or people;' as to the existence of a civil war in the country 
 or that a certain college is a national institution ; as to the 
 history of a country; the places where courts are or formerly 
 have been held therein, and as to the time when said courts 
 were held, and when the change in the place or time of the 
 holding of courts was made;" and that it has adopted town- 
 
 1 Case V. Kelly, 133 U. S. 31 ; State 6 McKinnon v. Bliss, 21 N. Y. 306. 
 V. Sherman, 43 Mo. 310 ; Case v. ~ Jewell v. Centre, 25 Ala. 498, 
 Mobile, 30 Ala. 538 ; Letier v. Oska- 8 Sassur v. Farmers' Bank, 4 Md. 
 loosa, 41 Iowa, 353. 409. 
 
 2 Johnson v. Common Council, 16 'Swinerton v. Columbia Ins. Co., 
 Ind. 237. 37 N. Y. 174; Woods v. Wilder, 43 
 
 8 Moundsville v. Velton, 35 W. Va. id. 164 ; Stokes v. Macken, 62 Barb. 
 
 217. 145 ; Rice v. Shook, 27 Ark. 137. 
 
 < Story on Conf. of Laws, § 643; "Ross v. Austell, 3 Cal. 183; Rob- 
 
 Croudson v. Leonard, 4 Cranch, 435. ertson v. Teal, 9 Tex. 344 ; St. Clair 
 
 'Smith V. Miller, 43 N. Y. 171; L. & I. Co. v. Martin, 125 Mo. 114; 
 
 Bronson v. Wiman, 8 id. 183. William Deering & Co. v. Quincy, 26 
 
 Oreg. 556. 
 
186 EDLKS OF EVIDENCE. 
 
 ships, and when ; * of who are public officers of the state, ex- 
 ecutive or judicial, and of any changes therein; the time when 
 their term of office commenced, and when it ended; also of 
 the genuineness of their signatures;^ as who is governor;' 
 and of appointments made by him under the laws;* of who 
 are justices of the peace in the county where the court is 
 held and the genuineness of their signatures.' Courts take ju- 
 dicial notice of proclamations appointing days of fast and 
 prayer, or thanksgiving ; ^ they will also take notice of a state- 
 ment in a report of the commissioners of railroads ; ' and that 
 books known as " plat books " are, and have been for many 
 years, kept by county recorders, in vsrhich plats of towns, cit- 
 ies and additions are recorded.^ Courts take notice of general 
 elections ; ' and who are elected to fill certain offices, when 
 their term begins, when it ends, and of all changes therein, 
 and of the genuineness of their signatures;" that primary 
 elections have grown to be an essential part of the pohtical 
 system.^^ The seal of a notary public is also judicially taken 
 notice of by the courts, he being an officer recognized by the 
 whole commercial world.'^ So are notarial certificates, as 
 proof of presentation and non-payment ; " so of foreign trea- 
 ties with our national government." Courts will take judicial 
 notice of things which must happen according to the ordinary 
 course of nature ; '' as the time when the sun rises and sets 
 during different days and seasons ; '* of the days of the week on 
 which particular days of the month fall;" that a particular 
 date fall qu Sunday .'' Courts are bound to take notice of the 
 
 1 Rock Island v. Steel, 31 111. 543. 152 111. 413 ; Wells v. Jackson, 47 N. 
 
 2 People V. Johr, 22 Mich. 461 ; H. 235 ; Ex parte Pattei-son, 33 Ala. 
 Heizer v. State, 12 Md. 330. 74. 
 
 3 Wells V. Jackson, etc. Co., 47 N. H. " State v. Hirsch (Ind.), 42 AlU L. 
 235. J. 197. 
 
 * State V. Evans, 8 Humph. (Tenn.) 12 Chanoine v. Fowler, 8 Wend. 173; 
 
 110; People, Hamble v. McConnell, Bayley on Bills, 515. 
 
 155 111. 192. 13 Pierce v. Indseth, 106 U. S. 546. 
 
 5 Graham v. Anderson, 42 111. 514. i* Lacroix v. Sarrazzin, 15 Fed Eep, 
 
 6 People v. Ackermen, 80 Mich. 588. 489. 
 
 7 Cincinnati W. & B. R Co. v. HofE- i* Rex v. Lufife, 8 East, 202. 
 hines, 46 Ohio St 643. 16 People v. Chukee, 61 Cal. 404. 
 
 8 Miller v. Indianapolis, 128 Ind. " Reid v. Wilson, 41 N. J. L. 29. 
 196. "Bar Harbor F. Nat Bank v. 
 
 9 Rice V. Mead, 23 How. Pr. 445. Kingsley, 84 Me. Ill ; Mcintosh v. 
 10 Chicago & A. R. Co. v. Keegan, Lee, 57 Iowa, 356 ; Campbell v. West, 
 
JUDICIAL NOTICE. 187 
 
 elementary laws of gravitation ; ' that natural gas is a dan- 
 gerous agency ; ^ also electricity and its properties, and the 
 fact that it is not a commodity which can be bought in the 
 market and transported from place to place ; ' that it is 
 the custom in cities to construct vaults under sidewalks in 
 front of business blocks.'' Courts will take judicial notice of 
 the official acts of an alderman ; * of the repeal of an act in- 
 corporating a town ;^ of the suspension of a public statute; 
 of matters of public history ; of the history of the state and 
 its topography and condition;" of the contents of the Bible, 
 and that the religious world is divided into sects, and of 
 the general doctrine maintained by each sect ; * of the mean- 
 ing of the word "whisky;"' that the term "beer," in the 
 absence of all evidence as to its quality and effect, does not 
 import an intoxicating beverage, and that it is a fermented 
 liquor;^" that beer is a malt liquor, and that the stronger 
 kinds, as ale, porter and strong beer, are of an intoxicating 
 character." Hitherto the courts have not been willing to take 
 notice that lager beer is intoxicating, but have submitted the 
 question, when controverted, to the jury, to be determined 
 upon the evidence.^^ The court takes judicial notice that 
 brandy is intoxicating;" of the customary abbreviation of 
 christian names;" that telephones have become an ordinary 
 medium of communication and interchange of thought ; ^^ that 
 electricity, as used hj a street railway company for the pro- 
 pulsion of its cars, is dangerous ; '^ of the height of the human 
 
 86 Cal. 197 ; Swales v. Grubbs, 126 » Frese v. State, 33 Fla. 367. 
 
 Ind. 106. i» Blatz v. Rohrbach, 116 N. Y. 450 ; 
 
 1 Cox V. Syenite Granite Co., 39 41 Alb. L. J. 90; 37 N. Y. State Rep. 
 
 Mo. App. 434. 484. 
 
 - Jamleson v. Indiana Natural Gas " Rau v. People, 63 N. Y. 277. 
 
 Co., 138 Ind. 555 ; 44 Alb. L. J. 145. 12 Blatz v. Rohrbach, 27 N. Y. State 
 
 » Crawfordville v. Braden, 130 Ind. Rep. 484 ; 116 N. Y. 450. 
 
 149. 13 state v. Effinger, 44 Mo. App. 81. 
 
 * Babbage v. Powers, 130 N. Y. 381 ; " State v. Senn, 83 S. C. 393. 
 
 41 N. Y. State Rep. 531. is Globe Printing Co. v. Stahl, 23 
 
 5 Fox V. Com., 81 Pa. St. 511. Mo. App. 451. 
 
 6 Belmont v. Morrill, 69 Me. 314. i^ Taggart v. Newport Street E. Co., 
 ' Wilson V. State, 54 Ind. 553. 41 Alb. L. J. 416. 
 
 s Weiss V. Edgerton School Board 
 (Wis.), 41 Alb. h. J. 453. 
 
188 BULKS OF BVIDENCE. 
 
 body and the measurements of its several parts ; ' of the course 
 of business in the country and of new processes of practical 
 utility in facilitating trade ; ^ of the course of seasons of hus- 
 bandry;^ of the functions of town officers under the statute;* 
 and of common epithets which are generally understood;' 
 that a very large interstate trade exists in fresh-dressed 
 meat;" that two railroads, if completed according to their 
 charter, would form a continuous line;'' of the facilities, for 
 public travel between dififerent points, the great lines of pub- 
 lic travel and their connections ; ^ of the resignation or coming 
 in of public officers ; ' that the state and township are political 
 bodies ; '" of the jurisdiction of courts of the state and of the 
 United States, and of the acts giving it ; " that the business of 
 selling proprietary medicines and nostrums depends more 
 upon the expedients employed to recommend them to the 
 public than the merits of the medicine;'^ of the nature and 
 uses of an air gun, and that it is harmlessly sold and used as 
 a toy;'' of the duties imposed upon persons or officers by 
 state and national law respecting particular matters ; " of con- 
 stitutions of other states and powers thereby given to courts;'* 
 that names are foreign to the country and to the English 
 language ; '* of the functions of such railway officers as ticket 
 agents and conductors; that the abbreviation "supt." stands 
 for the word " superintendent," and that a superintendent is 
 a managing agent ; " that the driver of a street-car is subject 
 to the conductor's orders;'^ of the cost of building and run- 
 
 1 Hunter v. New York, Ontario & ' Ex parte Peterson, 33 Ala. 74. 
 Western R. Co., 116 N. Y. 615; 27 i«Le Grange v. Chapman, 11 Mich. 
 N. Y. State Rep. 729. 499. 
 
 2 Richards v. Michigan C. E. Co., n Bretz v. Mayor, etc., 6 Rob. (N.Y.) 
 40 Fed. Rep. 165. 326. 
 
 3 Ross V. Boswell, 60 Ind. 835. 12 Fowle v. Park, 48 Fed. Eep. 789. 
 
 i Ingles V. State, 61 Ind. 212. " Harris v. Cameron, 81 Wis. 239; 
 
 5 Bailey v. Kalamazoo Pub. Co., 40 45 Alb. L. J. 320. 
 
 Mich. 251. " Semple v. Hogar, 27 Cal. 163. 
 
 6 Re Rebman, 41 Fed. Rep. 867. 15 Butcher v. Brownville, 2 Kan. 70. 
 ^ Georgia P. R. Co. v. Gaines, 88 I6 Behrensmeyer v. Kreitz, 135 III. 
 
 Ala. 377. 691. 
 
 8 Morgan v. Farrel, 58 Conn. 418 ; U South Missouri Land Co. v. Jef- 
 
 Maghee v. Camden & Amboy R. Co., fries, 40 Mo. App. 360. 
 
 45 N.Y. 514; Manning v. Gasparie, is Seaman v. Koehler, 122 N. Y. 
 
 27 Ind. 399. 646 ; 33 N. Y. State Rep. 729. 
 
JUDICIAL NOTIOIS. 189 
 
 ning railroads in difPerent places ; ^ of the course (^f business 
 of railroad companies to transfer cars over more than one 
 railroad without breaking bulk ; ^ and of the rules and regula- 
 tions of a railroad company ; ' that public streets in cities are 
 public highways; that municipal corporations have power to 
 improve streets;* of the time required for steam passage 
 across the Atlantic; ' that coal oil is an inflammable liquid ; ' 
 that labor on six days of the week has not been regarded by 
 any religious body as a required religious observance, like 
 that of rest on the seventh only ; ' that the Indian Territory 
 is a grazing country where cattle in great numbers run at 
 large ; ' of the coincidence of the days of the week and month ; ' 
 of the area of a county and the towns of which it is com- 
 posed ; '" of what lands are held by the general government in 
 the state ; " of the terms of court in the state, their commence- 
 ment and close ; ^^ of the boundaries of the state ; ^' of all agree- 
 ments in reference thereto ; " and of all changes therein ; •' of 
 the counties '* and municipal corporations ; " of the distance 
 between the principal cities of the country, and of the time 
 required for railway trains to run to and^from them;i' which 
 of the streams, if any, in the state are tidal streams ; '' of what 
 states joined the Confederacy ; ™ of the disturbed condition of 
 business in war times;''' of authority given to a county to 
 subscribe for railroad stock ; of the different classes of notes 
 and bills in circulation as money at a particular time ; ^^ of a 
 
 1 "Wellman v. Chicago & I. R. Co., >» Kidder v. Blaisdell, 45 Me. 461. 
 83 Micli. 593. " Lewis v. Harris, 31 Ala. 689. 
 
 2 Burlington, C. R. & N. R. Co. v. iSBelthone v. Hale, 45 Ala. 533; 
 Dey, 83 Iowa, 313. McGinness v. State, 34 Ind. 500. 
 
 3 Highland Ave. & B. R. Co. v. w state v. Dunwall, 3 R 1 480. 
 Walters, 91 Ala. 435. " Thomas v. Stigers, 5 Pa. St. 480. 
 
 * Murray v. Titoomb, 19 Ind. 135. WHam v. Ham, 39 Me. 363; Ross 
 
 5 Oppenheim v. Wolf, 8 Sandf. Ch. v. Riddick, 3 III. 73. 
 
 571. 16 People v. Snyder, 41 N. Y. 397. 
 
 ' Moseley v. Vermont Mut. F. Ins. i' Chapman v. Wilier, 6 Hill, 475. 
 Co., 55 Vt 143. 18 Clair v. Chicago, B. & Q. R. Co. 
 
 7 Re King, 41 Fed. Rep. 905; 44 (Iowa), 45 N. W. Rep. 470 ; Pearce v. 
 
 Alb. L. J. 309. Laughfit, 101 Pa. St. 507. 
 
 'Gulf, C. & a F. R. Co. V. Wash- w Walker v. Allen, 73 Ala. 456. 
 
 ington, 4 U. S. App. 131 ; 49 Fed. Rep. ^ Danthitt v. Stinson, 63 Mo. 368. 
 
 347. 21 Foscue v. Lyon, 55 Ala. 440. 
 
 9 Sprawl V. Lawrence, 33 Ala. 106 ; ^ Hart v. State, 55 Ind. 599 ; Lump- 
 
 Mechanics' Bank v. Gibson, 7 Wend, kin v. Murrell, 46 Tex, 51. 
 460. 
 
190' EITLES OF EVIDENCE. 
 
 previoufs fmancial depression;' -vvheii the Eebellion was ter- 
 minated ; 2 of the accession of the chief executive of the nation 
 or state; under whose authority they act; his powers and 
 privileges;' the genuineness of his signature; the heads of 
 departments and principal officers of state, and the pubho 
 seals ; ^ the election or resignation of a senator of the United 
 States; the appointment of a cabinet or foreign minister; also 
 of public proclamations of war and peace ; ' stated days of gen- 
 eral political elections ; the sittings of the legislature, and its 
 established and usual course of proceeding ; the privilege of its 
 members. The courts also take judicial notice of the geog- 
 raphy of the state and the enumeration of the inhabitants 
 taken pursuant to law ; * and of the length of time ordinarily 
 required to complete an enumeration of the inhabitants in a 
 state;' of the number of newspapers or of the fact that a 
 newspaper is published ; ^ of the ordinary meaning of all words 
 in our own tongue ; ' such abbreviations and symbols of ideas 
 as have, from immemorial use, been adopted by the people 
 generally;'" of the mortality tables showing the natural ex- 
 pectancy of duration of life at a given age; " of the vote of a 
 city at a special election accepting a statute ; '^ of the census or 
 other enumeration made by the state or United States; and 
 the location, boundaries and juxtaposition of the several coun- 
 ties of the state ; of the situation of the streets and squares 
 and public grounds of a city in determining the constructioti 
 of a statute; of the general course of business in a community,, 
 including the universal practice of banks;" and that in the par- 
 chase of grain or other commodity, the purchaser, as a general 
 rule, is governed by the last available quotations in his posses- 
 
 1 Ashley v. Martin, 50 Ala. 537. « Atteson v. Lay, 115 Mo. 538, 48 
 
 2 Turner v. Patton, 48 Ala. 406. Alb. L. J. 89. 
 
 3 Lindsey v. Attorney-General, 33 9 Nix v. Hedden, 149 U. S. 304 
 Miss. 508; State v. Williams, 5 Wis. w Powers v. Bowdle, 3 N. D. 107; 
 308. Toplitz V. Hedden, 146 U. S. S5&; 
 
 4 Rex V. Jones, 3 Camp. 131. Jones v. Lake View, 151 III. 613. 
 SDalder v. Huntingfieldi 11 Ves. "Kansas City, M. & B. R Ob. v. 
 
 293. Phillips, 98 Ala. 159. 
 
 6 Parker v. State, Powell, 133 Ind. 12 Prince v. Crocker, 33 L. R A. 610, 
 178 ; State v. Pennington, 134 Mo. 388. 166 Mass. 347. 
 
 ' People V. Rice, 135 N. Y. 473. » Hutchinson v. Manhattan Co., 150 
 
 N. Y. 350, 13 Bkg. L. J. 735. 
 
JUDICIAL NOTICE. 191 
 
 sion ; ^ that where the ownership of a majority of the stock of 
 a corporation changes, the board of directors usually changes ; ^ 
 the fact that there are uncollected taxes upon the assessment 
 rolls of a county, where such fact is material;' that property 
 lying in the vicinity of a street improvement often derives 
 important benefits therefrom, although not fronting upon or 
 contiguous thereto ;Hhat second-hand clothing is often the 
 means of communicating contagious and dangerous diseases;* 
 that a whisky cocktail is an intoxicating drink ; ^ that mineral 
 wool is made from slag taken from blasting furnaces ; ' of a 
 long-prevailing construction of a statute by executive officers ; * 
 that a certain person is an attorney of the court ; ^ the relation 
 of the Dominion of Canada to Great Britain;^" of the location 
 of every county seat in the state;" that all savings banks in 
 the state have a by-law requiring the production of the depos- 
 itor's book in order to obtain money deposited ; ^- that fright 
 or exposure to peril may produce a complete change in the 
 nervous system of a person, and render a strong person 
 weak or timid ; ^' that innocent persons do sometimes fly from 
 the scene of a crime through fear of being apprehended as the 
 guilty parties or of being detained as witnesses ; '* that no de- 
 vice has been produced which will wholly prevent the emission 
 of sparks or cinders from locomotive engines ; '^ that in cities 
 there are unincorporated charity organizations as well as those 
 that are incorporated,^^ and that unincorporated church so- 
 
 iNash V. Classen, 163 111. 409. • sQdell v. Reynolds, 37 U. S. App. 
 
 2 Farmers' Loan & F. Co. v. New 447, 70 Fed. Rep. 656; Ferris v. Coin- 
 York & N. R Co., 34 L. R. A. 76, 150 mevcial Nat Bank, 158 111. 237. 
 N. Y. 410, 54 Alb. L. J. 311. lOLumley v. Wabash R. Co., 71 Fed. 
 
 8 Mullen V. Saokett, 14 Wash. 100. Rep. 21. 
 
 4 Hayes v. Douglas County, 31 L. "Mode v. Beasley, 143 Ind. 306. 
 
 R A. 313, 93 Wis. 439. 12 White v. Cushing, 88 Me. 339, 32 
 
 6 Rosenbaum v. Newbern, 33 L. R. L. R A. 590. 
 
 A. 133, 118 N. C. 83. , 13 sioane v. Southern Cal. R Co., Ill 
 
 6 United States v. Ash, 75 Fed.*Rep. Cal. 220, 32 L. R A. 193. 
 
 651. " Alberty v. United States, 162 U. 
 
 7 Western Mineral Wool & I. F. Co. S. 499, 40 L. ed. 1051, 16 Sup. Ct. Rep. 
 V. GFobe Mineral Wool Co., 77 Off. 864. 
 
 Gaz. 1127, 75 Fed. Rep. 400. is Menominee River Sash & D. Co. v. 
 
 8 Bloxham v. Consumers' Electric Milwaukee & N. R Co., 91 Wis. 447. 
 Light & Street R Co., 38 L. R A. 507, i" People v. Powers, 147 N. Y. 104,. 
 36 Fla. 519. 69 N. Y. State Rep. 403. 
 
192 EULES OF EVIDENCE. 
 
 cieties have been in existence;' that the bicycle is used for 
 purposes of pleasure and exercise and also for transportation 
 of goods ;^ that telegraphic messages must be written ;nhat 
 compendiums of the facts in law in any particular case may be 
 availed of without quotation;^ that mere pasturage on western 
 lands is very slight evidence of possession.' 
 
 § 7. Matters not taken notice of. — Courts will not take ju- 
 dicial notice of local customs, or the meaning of devices used 
 in a particular trade, and the same must be proved;' they 
 will not generally take notice of historical facts.' 
 
 § 8. Official character^ duties, acts, etc. — Courts will take 
 judicial notice of who, from time to time, presides over the 
 patent office, or other executive or judicial department of the 
 government, even for a temporary purpose;^ who are elected 
 sheriffs; the time when their term of office commences and 
 when it ends, and the genuineness of their signatures. The 
 court will take judicial notice that the county clerk is ex officio 
 clerk of the superior court.' The United States courts take 
 judicial notice of official statements made by the head of one 
 of the branches of the executive department which relate to 
 the public records under his conti'ol.^" The circuit court of 
 one county is bound to take judicial notice as to whether or 
 not one signing an execution issued by a circuit court of an- 
 other county is in fact clerk of the latter court." The courts 
 are bound to take judicial cognizance of their own decisions 
 and of facts which were proved in such decisions.'^ In a suit 
 for damages resulting from an accident, a fact proved and 
 bearing on a subsequent case growing out of the same cause 
 will be noticed in the latter case, where the testimony is reti- 
 cent on the point." The United States supreme court takes 
 
 1 Alden v. St. Peter's Parish, 30 L. 'McKinnon v. Bliss, 21 N. Y. 206. 
 R A. 332, 158 111. 631. syork & M. L. R Co. v. Winans, 
 
 2 Davis V. Petrivoch (Ala.), 21 So. 17 How. (U. S.) 30. 
 
 Eep. 344. 9 Campbell v. West, 86 Cal. 197. 
 
 3 People's Cairo Tel. Co. v. W. U. "Heath v. Wallace, lb8 U. S. 573. 
 
 Tel. Co., 166 111. 15. " White v. Rankin, 90 Ala. 541. 
 
 * West Pub. Co. V. Lawyers' Co-op., i^Paland v. Chicago, St L, & N. 0. 
 
 S5 L. R A. 400, 79 Fed. Rep. 756. R Co., 42 La. Ann. 290. 
 
 5 Whitney v. United States, 167 U. aPaland v. Chicago, St L. & N. 0. 
 
 S. 529. R Co., 42 La Ann. 390. 
 
 "Johnson v. Robertson, 31 Md. 416; 
 Harsh v. North, 40 Pa. St 241. 
 
JTTDIOIAL, NOTIOE, 193 
 
 judicial notice of the fact that at the date of his certificate a 
 deputy comptroller of the currency was such offiper.^ The court 
 will take judicial notice that an officer before whom an affida- 
 vit was made is a justice of such court ;^ that a certain person 
 is an attorney, and of the genuineness of his signature con- 
 nected with professional acts done by him, but not in cases in 
 which he is himself a party ; ' also of what attorneys have ap- 
 peared in a cause;* who are executive and judicial officers of 
 the United States, elected or appointed in pursuance of the 
 constitution or laws of congress.^ 
 
 §9. Political divisions and geographical matters.— All 
 courts are bound to take judicial notice of the territorial ex- 
 tent of the jurisdiction exercised by the government whose 
 laws they administer, or of its recognition or denial of the sov- 
 ereignty of ja foreign power, as appearing from the public acts 
 of the legislature and executive, although those acts are not 
 formally put in evidence, nor in accord with the pleadings." 
 They also take notice of the population of political divisions ; ' 
 the names of all the counties in the state and their corporate 
 character;^ the organization of the counties and of the dates 
 of such organization ; ' that a certain portion of a certain sec- 
 tion of public lands was selected by the governor of the state 
 and patent therefor issued to the state by the secretary of the 
 interior j^" that a place at which an offense was committed is 
 within its jurisdiction;" that a certain town or village is the 
 county seat of a certain county ; ^^ of the boundaries of a county 
 and of the location of lands described by government subdi- 
 visions, as by township, range and section, and the legal sub- 
 divisions thereof;" the general situation of a city with refer- 
 ence to the county lines within which it is situated;" that a 
 
 iKeyser v. Hitz, 1'33 U. S. 138. SQarap v. Marion County, 91 Ala. 
 
 2 Re Gorry, 48 Hun, 29, 15 N. Y. 240. 
 
 State Rep. 315. " Pitts v. Lewis, 81 Iowa, 51 ; Ells- 
 
 3 Masterson v. Le Clair, 4 Minn. 163 ; worth v. Nelson, id. 57. 
 
 People V. Nevina, 1 Hill, 154. l" Lasher v. State, 80 Tex. App, 387 ; 
 
 ^Syrames v. Maor, 21 Ind. 443. State ex rel. Schumacher v. Gramela- 
 
 5 York & M.- L. R. Co. v. Winans, pacher; 126 Ind. 398. 
 
 17 How. (U. S.) 30. " Whitman v. State, 80 Md. 410. 
 
 6 Jones V. United States, 137 U. S. 12 Cole v. Segraves, 88 Cal. 103. 
 202. " Campbell v. West, 86 Cal. 197. 
 
 7 Mertz V. Brooklyn, 138 N. Y. 617, " State V. Pennington, 124 Mo. 388. 
 33 N. Y. State Rep. 577. 
 
 13 
 
194 EULES OF. EVIDENCE. 
 
 street is in a certain part of a city;' the relative distances 
 from a certain place to another part of the same state and the 
 neighboring states;^ the existence of all villages and cities 
 organized under the general incorporation act ; ' the size and 
 class of cities;* that at a certain time a section of country 
 was unsettled;' what rivers are public highways.^ State 
 courts take notice of the United States government surveys 
 within the state, and of the location and relative situation of 
 the lands officially surveyed and mapped out under the au- 
 thorit}'^ of the laws enacted by congress.'' The United States 
 courts will take judicial notice that the United States, for 
 revenue purposes, is divided into districts with certain geo- 
 graphical boundaries.^ The courts will take judicial notice 
 that a certain city is in a specified county ; that a certain town 
 is in a certain county;' that certain places constitute the chief 
 cities or commercial centers of the state.'" 
 
 § 10. Statutes of other states. — In the absence of allega- 
 tions or proof to the contrary, courts will assume that the laws 
 of another state or country are similar to those in the state in 
 which the action is tried." This rule does not extend to laws 
 imposing a penalty or forfeiture.'^ The judgment of a court 
 of a foreign country, properly authenticated by the clerk of 
 the court in which it was rendered and duly certified by the 
 secretary of state, and of the governor of the province with 
 the provisional seal, will be treated as evidence ; " and the courts 
 will not take judicial notice of the statutes or common law of 
 another state, and any person relying upon such statute or 
 
 1 Walsh V. Missouri P. R Co., 103 9 People v. "Wood, 43 N. Y. State 
 Mo. 589.' Rep. 293, 131 N. Y. 617; Linok v. 
 
 2 Jamison v. Indiana Natural Gas Litchfield, 141 111. 469; Coulter v. 
 Co., 138 Ind. 555, 44 Alb. L. J. 145. Stafford, 48 Fed.Rep, 266. 
 
 s Rock Island v. Cuinely, 26 111. App. i" Texas Standard Cotton-oil Co. v. 
 
 173, 126 III. 408. Adoue, 83 Tex. 650, 45 Alb. L. J. 476. 
 
 < Savannah v. Dickey, 83 Mo. App. "Stokes v. Macken, 63 Barb. 145; 
 
 523; State v. Auburn, 86 Me. 276. Sirams v. Ei^press Co., 38 Ga. 139; 
 
 ■■* United States v. Wallament V. & Temple v. Hagar, 27 Cal. 163; Bemis 
 
 C. M. Co., 42 Fed. Rep. 351. v. McKenzie, 13 Fla. 553. 
 
 6 Com. V. King, 150 Mass. 221. 12 Cutler v. Wright, 23 N. Y. 473; 
 
 'Knabe v. Burden, 88 Ala. 436; Hull v. Augustine, 33 Wis. 383. 
 Peck V. Sims, 120 Ind. 345. 13 Lazier v. Westcott, 26 N. Y. 146. 
 
 8 United States v. Jackson, 104 U. S. * 
 41. 
 
JUDICIAL NOTICE. 195 
 
 common law of another state must prove them, as any other 
 fact is proved.' But where an action is brought upon the 
 judgment of another state, courts will take judicial notice of 
 the laws of such state so far as relates to the judgment.^ They 
 will take judicial notice of the laws of such other state so far 
 as is necessary to determine the validity of the acts alleged to 
 be in conformity with them.^ So when the statutes of another 
 state upon a particular matter have been made the subject of 
 a judicial decision in a state, the courts of such state will take 
 judicial notice of it.* The United States courts are presumed 
 to know the laws of the several states, and will take judicial 
 notice thereof.^ State courts take judicial notice of all public 
 acts of congress, and pamphlets issued by government con- 
 taining them may be read,* and all treaties made with foreign 
 governments, and of the power of the president under the 
 same.'' When the statute of another state has been incorpo- 
 rated into an act of congress, it will be recognized without other 
 proof.* 
 
 § 11. Statutes as ground of action or defense. — If a party 
 relies upon a statute either as a ground of action or defense, 
 he must, notwithstanding the fact that it is a public statute 
 of which the courts take judicial notice, set forth in his plead- 
 ing such facts as bring him clearly within the provisions of 
 the statute, or if in defense, where no special plea is required, 
 show such state of facts as brings his case within the statute; 
 and'if there are many exceptions or provisos in the act, he 
 must show negatively that the matter pleaded is not within 
 the provisos or exceptions, unless the proviso or exception is 
 in a subsequent substantive clause or statute, and is not con- 
 nected with the enacting clause by any word of reference, in 
 which case it is a matter of defense for the other party and 
 need not be negatived in the pleadings.^ Where the enacting 
 
 iWitascheck v. Glass, 46 Mo. App. 134 N. Y. 156, 46 Alb. L. J. 64, 45 N. 
 S09 ; Stokes v. Macken, 63 Barb. 145. Y. State Rep. 774 ; Buchanan v. Whit- 
 
 2 Paine v. Schenectady Ins. Co., 11 man, 36 Ind. 257. 
 
 R, I. 411. '' Dale v. Wilson, 16 Minn. 525. 
 
 3 Carpenter v. Dexter, 8 Wall. 513. » Daggett v. Colgan, 92 Cal. 53 ; 
 * Graham V. Williams, 21 La. Ann. United States v. Turner, 11 How. 
 
 594. (TJ. S.) 663. 
 
 5 Re Jordan, 49 Fed. Rep. 238 ; Jones ^ National German Amer. Bank v. 
 
 V. Hays, 4 McLean, 531. Lang, 2 N. D. 66. 
 
 6 Banner v. Atlantic Dredging Co., ' 
 
196 EULES OF EVIDENCE. 
 
 clause of a statute makes an exception to the general provis- 
 ions of the act, a party pleading the provisions of the statute 
 raust negative the exception; but when the exception is con- 
 tained in the proviso and not in the enacting clause, the party- 
 pleading the statute need not negative the exception. It is 
 for the other party to set it up in avoidance of the other pro- 
 visions of the statute.^ When a statute gives a remedy where 
 none existed at common law, or where it makes an act lawful 
 which is not so regarded at common law, the party must state 
 in his pleadings and show upon the trial such a state of facts 
 as brings his case clearly within the provisions of the statute 
 as well as all the amendments thereto. But where the statute 
 is only declaratory of a common-law right and in aid thereof, 
 unless it in some way varies the standing or rights of parties 
 in court, the statute, or any circumstance bringing the party 
 within the provisions thereof, need not be stated in the plead- 
 ings; but otherwise when the statute gives any rights addi- 
 tional to the common-law rights, or varies or changes the 
 status of the parties.^ The statute need not be set forth or 
 named in the pleadings, as the courts are bound to take judi- 
 cial notice of the statute, and whether the facts set forth in 
 the pleadings are sufficient to sustain an action or defense 
 under it; it is the substance and not the form of the pleading 
 that controls.' But in all actions brought upon a private stat- 
 ute the act must be recited and such facts stated as disclose a 
 right of action under it, and no more of the act will be noticed 
 by the court than is set forth in the declaration ; and the same 
 is equally true as to the pleadings where the statute is relied 
 upon in defense to an action.* Public acts need not be proved, 
 as the court and jury are bound to know their provisions. 
 
 II. EAILEOADS. 
 
 Courts are bound to take judicial notice of the general feat- 
 ures of railroad business in respect to the separation of pas- 
 
 1 Bollinger v. Gallagher, 144 Pa. St. Cal. 137 ; Erlinger v. Bouoeau, 51 
 205; Lynch v. People, 16 Mich. 473; 111. 94. 
 MoGlone v. Prosser, 21 Wis. 373. sMcHarry v. Eastman (N. Y.), 7 
 
 ^Dapa V. Mays, 1 Wm. Saund. 276, Eobt. 187; State v. Dehlinger, 46 Mo. 
 mote 8 ; Hastings v. Cunningham, 39 206. 
 
 ^Hewett V. Harvey, 46 Mo, 106. 
 
JUDICIAL NOTICE. ' 19^ 
 
 senger and freight trains;' that the earnings of a railroad arff 
 mainly derived from freight and passenger traffic, which neither 
 begins nor ends with that particular road;^ that the demands 
 and exigencies of commerce require the cars of one railroad 
 company to be hauled over the road of another ; that the speed 
 of a railroad train can ordinarily be slackened sufficiently in a 
 distance of two hundred yards to avoid running down a hack 
 going at full speed on the track ahead of it;' that brakemen 
 feel impelled to obey the conductor's orders;* that passengers 
 on a sleeping-car receive a ticket at the ticket office and sur- 
 render it upon entering the car, and receive from the conductor 
 of the car a berth check;' that horses are liable to take fright 
 at the escaping steam and noise caused by the blowing of loco- 
 motive whistles in close proximity to them.^ 
 
 Courts are not bound to take judicial notice of matters of 
 fact. Whether they will do so or not depends on the nature 
 of the subject, the issue involved and the apparent justice of 
 the case. The rule that permits a court to do so is of prac- 
 tical value in the law of appeals where the evidence is clearly 
 insufficient to support the judgment. In such case judicial 
 notice may be taken of facts which are a part of the general 
 knowledge of the country, and which are known and have 
 been duly authenticated in repositories open to all, and espe- 
 cially so of facts of official, scientific or historical character. 
 Thus, in Hunter v. New York, 0. & W. E. Co.^ it was held 
 that the court may take judicial notice of the size and height 
 of the human body, and the fact that from the end of the 
 spine to the top of the head an adult is less than thirty-six 
 inches. No evidence of any fact of which the court will take 
 judicial notice need be given by the party alleging its exist- 
 ence, but the judge, upon being called upon to take judicial 
 notice thereof, may, if he is unacquainted with such fact, refer 
 to any person or to any document or book of reference for 
 
 1 Atchison, T. & S. F. E. Co. v. Head- * Mason v. Eiohmond & D. R. Co., 
 land, 18 Colo. 477. Ill N. C. 483. 
 
 2 Hart V. Ogdensburg & L. C. E. 5 Mann Boudoir Car Co. v. Dupre, 
 Co., 53 N. y. State Eep. 799, 67 Hun, 54 Fed. Eep. 646, 47 Alb. L. J. 446. 
 553. (i Northern P. R. Co. v. Sullivan, 53 
 
 3 Gulf, C. & S. P. E. Co. V. Ellis, 54 Fed. Eep. 219. 
 
 Fed. Eep. 481. ' 37 N. Y. State Eep. 737, 116 N. Y. 
 
 616. 
 
198 EULES OF EVIDENCE. 
 
 action in relation thereto, or may refuse to take judicial no- 
 tice thereof unless and until the part}'' calling upon him to 
 take such notice produces any such document or book of ref- 
 erence.' It is the practice for the parties to be prepared with 
 the proper means of bringing to his mind the matters of which 
 they desire that he shall take notice. In the case of the law, 
 this is done by means of recognized editions of the statutes, re- 
 ports by lawyers of decided cases, and text-books of accepted 
 authority. On the same principle, other books of credit, such 
 as dictionaries and histories,^ may be resorted to for the like 
 purpose with regard to other matters within the rule. Whether 
 a fact should be judicially noticed or not must often be a ques- 
 tion of degree. This is well illustrated by cases as to the period 
 of gestation, the judge having in some cases taken judicial 
 notice that a certain alleged period is impossible, and in others 
 admitted evidence upon the matter.' 
 
 1 Brown v. Piper, 91 U. S. 37 ; 1 Vent. 149, 151 ; Brounker v. Atkyns, 
 Romero v. United States, 1 Wall. 721 ; Skin. 14. 
 
 United States V. Teschmaker, 23 How. SR v. Luffe, 8 East, 193,201,207; 
 (U. S.) 392. Bosvile v. Attorney-General, 13 P. D. 
 
 2 Case of St Katherine's Hospital, 177. 
 
CHAPTER YII. 
 
 ADMISSIONS AND CONFESSIONS. 
 
 ADMISSIONS. 
 
 § 1. In general. 
 
 8. Illustrations. 
 
 3. Implied admissions. 
 
 4. Illustrations. 
 
 5. Agents. 
 
 6. Principal and surety. 
 
 7. Admission of former owner of 
 
 chose in action. 
 
 8. Sheriff — Action for not execut- 
 
 ing process, etc. 
 
 § 9. Attorney and counsel. 
 
 10. Person referred to by party. 
 
 11. Partners and joint contractors. 
 13. Administrators, executors, trust- 
 ees, etc. — Admissions by. 
 
 13. Confessions. 
 
 14. Illustrations. 
 
 15. In one's own favor. 
 
 16. Whole admissions must be taken 
 
 together. 
 
 ADMISSIONS. 
 
 § 1. In general. — The term "admissions " is usually applied 
 to civil transactions. The general rule is, that the declara- 
 tions of a party to the record, or of one identified in interest 
 with him, are, as against such party, admissible in evidence. 
 An admission is a statement, oral or written, suggesting any 
 inference as to any fact in issue, or relevant or deemed to be 
 relevant to any such fact, made by or on behalf of any party 
 to any proceeding. Such statements suggesting the existence 
 or non-existence of a fact in issue or a fact relevant thereto are 
 admissible against the person by whom or on whose account 
 such statements are made,' even when made by a party on 
 examination as a witness in another suit.^ They iftay be shown 
 
 1 1 Greenl. Ev., §§ 169-312 ; 8 Whart 
 Ev., g 1075 ; Pence v. Makepeace, 65 
 Ind. 345 ; Secor v. Pestana, 37 111. 535 ; 
 Powell V. Tarry, 77 Va. 350 ; Hears v. 
 Cornwall, 73 Mich. 78 ; Potter v. Mel- 
 len, 41 Minn. 487; Ector v. Welsh, 
 29 Ga. 443; Saveland v. Green, 40 
 Wis. 431 ; Plummer v. Currier, 53 
 N. H. 387 ; Goodnow v. Parsons, 3(5 Vt. 
 46; East Brandy wine, etc. R. R. Co. 
 
 V. Ranck, 78 Pa. St 454 : Robinson v. 
 Stuart, 68 Me. 61. 
 
 2Carr v. Griffin, 44 N. H. 510; Bud- 
 dee V. SpaDgler, 13 Colo. 316 ; Tooker 
 V. Gormer, 3 Hilt. (N. Y.) 71 ; Beeck- 
 man v. Montgomery, 14 N. J. Eq. 106 ; 
 Lorenzana v. Camarillo, 45 Cal. 135; 
 MoAndrews v. San tee, 57 Barb. 193; 
 Woods V. Gevecke, 28 Iowa, 561. 
 
200 EULES OF EVIDENCE. 
 
 after the maker is deceased.* And the admission of a party, 
 however made, may be given in evidence against him, but not 
 in his favor, unless it is or is deemed to be competent for some 
 other reason ; and what a party says is evidence against him- 
 self, whether it relate to the 'contents of a written instrument, 
 or to anything else. But as to the effect of the evidence it 
 may be said that the oral admission of a party made in pais is 
 competent evidence only of those facts which may lawfully be 
 established b}'^ parol evidence.^ In Slatterrie v. Pooley' the 
 question was whether a debt for which an action had been 
 brought by one J. T. against the plaintiff was included in the 
 schedule to a certain composition deed. The schedule being 
 inadmissible as evidence for want of a proper stamp, a verbal 
 admission by the defendant that the debt in question was the 
 same as that entered in the schedule was rejected by Gur- 
 ney, B., at nisi prius, on the ground that the contents of a 
 written instrument, which is itself inadmissible for want of a 
 proper stamp, cannot be proved by parol evidence of any kind. 
 The plaintiff having been nonsuited, a rule was obtained for a 
 new trial, against which cause was shown, and several of the 
 previous cases cited. The court, however, unanimously made 
 the rule absolute, without hearing counsel in support of it. 
 Parke, B., in delivering his judgment, observed: "We enter- 
 tain no doubt that the defendant's own declarations were ad- 
 missible in evidence to prove the identity of the debt sued for 
 with that mentioned in the schedule, although such admissions 
 involved the contents of a written instrument not produced ; 
 and I believe my Lord Abinger, who was not present at the 
 argument, entirely concurs. If such evidence were inadmis- 
 sible, the difficulties thrown in the way of almost every trial 
 would be nearly insuperable. The reason why such parol state- 
 ments are admissible without notice to produce or accounting 
 for the absence of the written instrument is that they are not 
 
 1 Crowe V. Colbeth, 63 Wis. 643 ; 2 Schwartz v. Hersker, 140 Pa. St. 
 
 Hickey v. Hinsdale, 12 Mich. 99 ; 550 ; Fisher v. Monroe, 51 N. Y. State 
 
 Ayres v. Bane, 39 Iowa, 518 ; Morrell Rep. 585 ; Soaps v. Esohberg, 43 III. 
 
 V. Cawley, 17 Abb. Prac. (N. Y.) 76 ; App. 375 ; Harris v. McArthur, 90 Ga. 
 
 Atkins V. Plymton, 44 Vt. 31 ; Reis v. 216 ; Dibble v. Dimick, 63 N. Y. State 
 
 Hellman, 25 Ohio St. 180 ; Huffman Rep. 325 ; Evans v. Montgomery, 95 
 
 V. Cartwright, 44 Tex. 296. Mich. 497. 
 
 8 6 M, & W. 664 
 
ADMISSIONS AND CONFESSIONS. 201 
 
 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. The weight and value of such testimony is quite another 
 question. That will vary according to the circumstances, and 
 it may be in some cases quite unsatisfactory to a jury. But it is 
 enough for the present purpose to say that the evidence is ad- 
 missible." Admissions may be made on behalf of the real party 
 to any proceeding by any party to the proceeding,' if made 
 by one who is privy in law ; ^ or by one privy in blood ; ' of 
 by one privy in estate ; * or who has a substantial interest in 
 the result.^ Where there is a privity of interest between 
 parties the admissions of one are, in a proper case, evidence 
 against the others, as in the case of lessors and lessees, do- 
 nors and donees — in other words, where a person must re- 
 cover through the title of another, — he is bound by the dec- 
 larations of the party through whom he claims. The indorser 
 of a promissory note or bill of exchange does not claim by th& 
 title of the indorser, as he has a title of his own.^ A statement 
 made by a person interested in a proceeding, or by a privy to- 
 any party thereto, is not an admission unless it is made during 
 the continuance of the interest.' It is a joint interest that 
 
 1 Smith V. Palmer, 6 Cush. 513 ; 7 Conn. 319 ; McDowell v. Goldsmith, 
 . Turney v. Evans, U N. H. 343; Folk 6 Md. 319; Head v. Halfoid, 5 Rich. 
 
 v. Sohaeffer, 180 Pa. St. 613. Eq. (S. C.) 128; Simpson v. Dix, 131 
 
 2 Smith V. Maine, 25 Barb. 33 ; Em- Mass. 179 ; Baucum v. George, 65 Ala. 
 erson v. Thompson, 16 Mass. 429; 259; Hancock v. Tram Co., 65 Tex. 
 McNight V. McNight, 20 Wis. 446. 235 ; Dooley v. Eaynes, 86 Va. 644 -^ 
 
 SLittlefield v. Littlefield, 51 Wis. Flagg v. Mason, 141 Masss64; Pyson 
 
 23, 28 ; Tilton v. Emery, 17 N. H. 536 ; v. Good, 5 New Bruns. 273 ; Doe d. 
 
 Fetherly v. Waggoner, 1 Wend. 599 ; Lonchester v. Murray, 5 New Bi-uns. 
 
 Spaulding v. Hallenbeck, 85 N. Y. 204, 335 ; Sartell v. Scott, 11 New Bruns. 
 
 207 ; Gibney v. Marchay, 34 N. Y. 301, 166. 
 
 306. 5 Bigelow v. Foss, 59 Me. 162 ; Pike- 
 
 4 Mueller v. Rebhan, 94 111. 143; Oz- v. Wiggins, 8 N. H. 356. 
 
 ment v.Anglin, 60 Ga. 243; McFad- « Cooper v. Wood, 1 Colo. App. 101 ; 
 
 den V. EUmaker, 53 Cal. 348 ; Rose v. Re Williams' Will, 64 Hun, 163, 46- 
 
 Adams, 23 Hun, 389 ; Gratz v. Beates, N. Y. State Rep. 791. 
 
 45 Pa. St. 495; Norton v. Pettibone, 'Mandevillev. Welch,5 Wheat. 377.. 
 
202 EULES OF EVIDENCE. 
 
 Tenders the admission of one party admissible against another; 
 thus, the admissions of one tenant in common are not compe- 
 tent against his co-tenant, though both are parties to the same 
 side of a case.^ The same rule applies to executors and trust- 
 ■ees, devisees and legatees.^ To make the admission of one 
 party receivable against another, a foundation must first be 
 laid by showing either that a partnership or a joint interest 
 existed.' But it is difiPerent where partners sue upon a promise 
 to them as partners.* The declarations or admissions of a per- 
 son for whose benefit a policy of insurance is taken in another 
 name are admissible because he is the real party in interest. 
 Self-harming statements made by a party when his mind is. not 
 in its natural state ought in general to be received as evidence, 
 and his state of mind should be taken into consideration by the 
 jury as an infirmative circumstance.^ What a person has been 
 heard to say while talking in his sleep seems not to be legal 
 evidence against him. This point arose in E. v. Elizabeth Sip- 
 pets,* where Tindall, C. J., was inclined to think the evidence 
 cot receivable,' however valuable it may be as indicative evi- 
 dence; for here the suspension of the faculty of judgment may 
 fairly be presumed complete. Admissions in civil suits pro- 
 cured by inducement or constraint do not affect their admis- 
 sibility in the absence of illegal duress.^ 
 
 § 2. Illustrations. — Admissions are only admissible when 
 parol evidence is admissible to establish the fact.' The decla- 
 rations of a nominal plaintiff, in an action upon a note, made 
 at any time before suit, are competent.'" Admissions of a holder 
 ■of a note, before it was due and before indorsement, and which 
 was negotiated before it was due, are not admissible against 
 the indorsee. '1 Eut it is different when the note was overdue 
 
 ' Dan v.^rown, 4 Cow. 483. 6 Kent. Sunim. Ass., 1839. 
 
 2 Hamberger v. Root, 6 Watts & ' Ex rel. Gore v. Gibson, 13 M. & 
 Serg. 431. W. 623, 627. 
 
 3 Rich V. Flanders, 39 N. H. 304; n Greenl. Ev., § 193; Tilley v. 
 Grafton Bank v. Moore, 13 id. 99; Damon, 11 Gush. 247; Newball v. 
 Whitneyv. Ferris, 10 Johns. 66; Buck- Jenkins, 3 Gray, 562; Foss v. Hil- 
 man v. Barnum, 15 Conn. 68. dreth, 10 Allen, 76, 83. 
 
 4 Lucas V. De La Cour, 1 M. & S. 9 Brooks v. Ishell, 22 Ark. 488. 
 :249. 10 Clews v. Kehr, 90 N. Y. 633. 
 
 5 Quint. Inst. Orat, lib. 5, ch. 7. "Glunston v. Griggs, 5 Ga. 434 
 
ADMISSIONS AND CONFESSIONS. 203 
 
 at the time of the transfer. While it is a general rule that 
 admissions made by a person after he has parted with his in- 
 terest in a chattel, chose in action, note or other security ai-e 
 inadmissible against the holder or assignee,^ it is held that dec- 
 larations of a former owner of a bill, transferred after dishonor, 
 are competent to show that before such transfer the defend- 
 ants were discharged from liability.^ 
 
 § 3. Implied admissions. — Admissions may be implied 
 from conduct, language, silence, acquiescence, etc. The most 
 unreliable of all evidence is that of the oral admissions of one 
 party after the parties were in a state of controversy. The 
 general rule is that declarations of one party, made in the 
 presence of the other, which naturally call for a reply, and 
 which are not denied by the other, are admissible as evidence 
 for the former.^ Thus, declarations relating to the subject- 
 matter of a suit, made by a third person in the presence of a 
 party to the suit, and to which each party had an opportunitj' 
 to reply, but did not, are admissible in evidence against him. 
 Silence and acquiescence is another dangerous kind of evidence. 
 To affect a party with the statements of others on the ground 
 of his implied admission of their truth by silent acquiescence, 
 it is not enough that they were made in his presence; it must 
 plainly appear that such conduct was fully known, or the 
 language fully understood by the party, before any infer- 
 ence can be drawn from his passiveness or silence. The rule 
 loosely applied that one's silence shall be construed as a virt- 
 ual assent to all that is said in his presence is susceptible of 
 great abuse, and calls for a course of conduct which prudent 
 and quiet men do not generally adopt. If that rule be sound 
 to its full extent, it would be in the ^ power of one party to 
 ruin his adversary's case by drawing him into a compulsory 
 altercation in the presence of chosen listeners, who would be 
 sure to misrepresent what he said. The better rule seems to 
 be that the mere silence of one, when facts are asserted in his 
 
 1 Smith V. Shanck, 18 Barb. 344. v. Paul, 41 N. H. 24; Oliver v. Louis- 
 
 2 HoUister v. Rizner, 9 Ohio, 1 ; vllle & N. E. Co., 43 La. Ann. 804 ; 
 Howe V. Jerome, 18 Conn. 138 ; Whit- Ball v. Independence, 41 Mo. App. 
 tier V. Vose, 16 Me. 403. 469; Miller v. State, 68 Miss. 331. 
 
 8 Black V. Hicks, 37 Ga. 533; Corser 
 
204: EDLES OF EVIDENCE. 
 
 presence, is no ground for presuming his acquiescence, unless 
 the conversation were addressed to him under such circum- 
 stances as to call for a reply .^ Thus, statements made by a 
 clergyman in the course of a sermon and received in silence 
 by the congregation are not receivable as evidence against 
 such congregation.^ So, a person, if asleep, will not be preju- 
 diced by statements made in his presence,' or if such person is 
 intoxicated * or deaf.^ Neither does the rule apply to state- 
 ments made in a letter which is not answered." Not denying 
 evidence in court is not a relevant fact;' nor when under 
 arrest.^ The person must be in a position to require the in- 
 formation, and he must ask it in good faith and in a manner 
 fairly entitling him to expect it, in order to justify any infer- 
 ence from the mere silence of the party addressed. Where 
 a person is inquired of as to a matter which may affect bis 
 pecuniary interest, he has the right to know whether the 
 party making the inquiry is entitled to make it as affecting 
 any interest which he may represent, and for the protection 
 of which he requires the information sought; and unless he 
 is fairly informed upon these points, he is not bound to give 
 information. It is now a general rule that it must be shown 
 that the other party heard the declarations or was in a situ- 
 
 1 West Chester, etc. R. R. Co. v. son v. Holliday, 79 Ind. 151 ; State v. 
 
 McElwee, 67 Pa. St. 311 ; Gulerette v. Crockett, 83 N. C. 599; Ettinger v. 
 
 McKinley, 27 Hun, 320 ; The Pizzarro, Com., 98 Pa. St. 338, 345 ; Loggins v. 
 
 2 Wheat. 227; Winohell v. Edwards, State, 8 Tex. App. 434, 444; Com. 
 
 57 111. 41 ; State v. Kinney, 26 W. Va. v. Funai, 146 Mass. 570 ; Conway v. 
 
 141; R. V. Chute, 46 Q. B. (U. C.) State, 118 Ind. 482; Kaelin v. Com., 
 
 555; State v. Williams, 54 Mo. 170; 84 Ky. 354, 367; State v. Hurton, 94 
 
 People V. Pitcher, 15 Mich. 597 ; State N. C. 947. 
 
 V. Staples, 47 N.H. 113, 119; Campbell 2 Johnson v. Trinity Church, 11 
 
 V. State, 23 Ala. 44 ; State v. Reed, 62 Allen, 133. 
 
 Me. 139; Readraan v. Conway, 136 » Lanergan v. People, 39 N. Y. 39. 
 Mas?. 374 ; Greenfield v. People, 85 ^ State v. Perkins, 3 Hawks, 377. 
 N. Y. 75 ; State v. Griffin, 87 Mo. 5 Tufts v. Charlestown, 4 Gray, 537. 
 608 ; State v. Espinozei, 30 Nev. 309 ; . 6 gt. Loiiis R R. Co. v. Thomas, 85 
 Williams v. State, 22 Tex. App. 497 ; 111. 464 ; Learned v. Tillotson, 97 
 Ross V. State, 74 Ala. 533 ; State v. N. Y. 1 ; Meguire v. Corwine, 3 Mac- 
 Reed, 68 Me. 139, 143; Preston v. Arthur (D. C), 81 ; Waring v. United 
 American Linen Co., 119 Mass. 400 ; Slates Tel. Co., 44 How. (N. Y.) Pr. 69. 
 Corser v. Paul, 41 N. H. 24; Gib- 'McElmurray v. Turner, 86 Ga. 
 ney V. Marchay, 34 N. Y. 301, 305; 315. 
 
 Churchill v. Fulliara, 8 Iowa, 45 ; 8 state v. Howard, 103 Mo. 143. 
 People V. Ah Yute, 54 Oal. 89 ; John- 
 
ADMISSIONS AND CONFESSIONS. 205 
 
 ation where he ought to have heard them;^ and a conver- 
 sation carried on in the presence and hearing of a party, to 
 which he makes no reply, cannot be received in evidence 
 against him as an implied admission on his part of its truth, 
 unless it was of such a character as would naturally call for 
 a response from him, and he was in a situation in which he 
 would have probably replied to it ; - and a party is not called 
 upon to dispute a declaration on every occasion on which it 
 may be rehearsed to him.' So statements made in the pres- 
 ence and hearing of a party, without contradiction by him, 
 will not be construed as an admission by him of tli.eir truth, 
 unless the truth of the statements must necessarily have been 
 within his knowledge.* Unsworn pleadings are never admit- 
 ted as evidence against the pleader in another suit between 
 him and other parties as admissions or declarations of the 
 facts contained in them.^ An admission contained in an^un- 
 delivered instrument is not binding upon the party whose 
 hand and seal are attached to it.^ And although it was held 
 in Kelley v. People' that the silence of a party under arrest, 
 when he hears statements tending to show his guilt, is evi- 
 dence against him, the better rule seems to be that silence 
 under such circumstances is not evidence from which any ad- 
 verse inference can be drawn.^ Nothing can be more danger- 
 ous than this kind of evidence, and it ought never to be re- 
 ceived. Statements by officers and others in the presence of a 
 party under arrest tending to show his guilt are generally im- 
 pertinent and best rebuked by silence. And in The State v. 
 Howard,' it was held that where a party is under arrest at the 
 time a statement was made in his presence, his neglect to con- 
 tradict it does not make it an implied admission. Where a 
 person to whom an account is rendered or sent keeps the ac- 
 
 1 Kirby v. State, 89 Ala. 63 ; Will- 5 But see Cook v. Barr, 44 N. Y. 156. 
 iams V. State, 54 Ark. 17. ^ Eobinsoii v. Cushman, 2 Denio, 
 
 2 Hersey v. Burton, 23 Vt. 685 ; 149 ; Cora. v. Smith, 162 Mass. 508 ; 
 Lawson v. State, 20 Ala. 65 ; Spencer Sheldon v. Sheldon, 84 Hun, 422 ; 
 V. State, id. 24 ; Abercrombie v. Allen, Sherman v. Robertson, 88 id. 40. 
 
 39 id. 281 ; Brainard v. Buck, 35 V,t. ^ 55 N. Y. 565 ; Spurf v. United 
 
 573. States, 156 U. S. 51. 
 
 3 Gibney v. Marchay, 34 N. Y. 301. « Bob v. State, 33 Ala. 560; Com. v, 
 
 4 Edwards v. Williams, 3 Miss. (3 Walker, 13 Allen, 570. 
 How.) 846. 9 103 Mo. 143. 
 
206 EULES or EVIDENCE. 
 
 count for an unreasonable length of time without making any 
 objection, it becomes a stated account. But parties are not 
 bound at their peril to dispute an account as often as it is pre- 
 sented.' 
 
 § 4. Illustrations. — An objection to one item of an account 
 without saying anything about the other items may imply 
 admission of the rest. In case of negotiable paper taken up 
 even by a stranger, an assignment has been implied from the 
 delivery to him of the note uncanceled.^ In proving corpo- 
 rate existence, evidence of the formal acceptance of the charter, 
 and that the corporators have actually proceeded to exercise 
 rights under the franchise, amounts to an admission of its ex- 
 istence. And he who has received and enjoyed a consideration 
 from the company cannot require further proof of its power 
 to contract. One who has in any way dealt with the company 
 as a corporation is taken to have admitted its existence.' Hav- 
 ing dealt with an officer as such is deemed an admission of his 
 title.* A return or indorsement inade by an officer is, though 
 not filed, competent against him as an admission. Until he 
 has filed the return in the office where the law compels him to 
 file it, he may change the indorsement, afterwards, only by 
 permission of the court.^ Liability of a defendant, as of a 
 partner of a copartnership, is established by evidence that he 
 held .himself out to the world as a partner.* Silence by defend- 
 ant when he was told by plaintiff that he had sent a check is an 
 admission. The commencement by a railroad company of con- 
 demnation proceedings to acquire title to easements is an ad- 
 mission of record that the occupant owns such easements.' An 
 offer to sell property for a certain price is an admission of its 
 value at or near the time of the oflfer.^ But it seems that evi- 
 
 1 Gibney v. Marohay, 34 N. Y. 301 ; ^2 Whart. Ev., § 1153. 
 
 Say ward v. Dexter, H. & Co., 72 Fed. » Nelson v. Cook, 19 111. 440, 455; 
 
 Rep. 758; Johusou v. Tyng, 73 N. Y. Barker v. Binninger, 14 N. Y. 270. 
 
 State Rep. 205. 6 Bennett t. Holmes, 33 Ind. 108 
 
 2 Champney v. Coope, 83 N. Y. 543. Tumlin v. Goldsmith, 40 Ga. 221 
 
 3 Bangor, etc. R. Co. v. Smith, 47 Penn v. Kearney, 21 La. Ann. 21 
 Me. 34; Hirsh v. Auer, 146 N. Y. 13; Crogan v. Carelton, 31 Me. 493. 
 Breathwit v. Bank of Fordyce, 60 ' Johnston v. Manhattan R Co,, 31 
 Ark. 26 ; Kellock v. State, 88 Wis. N. Y. State Rep. 685. 
 
 663; McCommon v. McCommon, 151 sgpi-inger v. Chicago, 135 111. 552. 
 111. 438; Palmer v. Culbertson, 143 
 N. Y. 213. 
 
ADMISSIONS AND CONFESSIONS. 207 
 
 dence of the valuation which owners had placed upon their 
 land for the purpose of taxation is not admissible upon the 
 question of its value in condemnation proceedings.* One by 
 whose negligence a wagon belonging to another is broken, who 
 requests the latter to have it repaired and promises to pay the 
 cost, thereby admits, his negligence.^ The statement of a wife 
 in the presence of her husband and not denied by him is not 
 competent evidence against him unless she would be competent 
 as a witness in the premises.' Evidence of the subsequent dis- 
 charge of employees, or changes in appliances, or the addition 
 of an entirely new apparatus, or subsequent changes and re- 
 pairs by parties charged with negligence, is inadmissible as an 
 implied admission of such negligence.* 
 
 The silence of one to whom a letter is written, when there 
 is no duty to speak, does not operate as an admission of the 
 matters to which the letter relates. In such cases the letter 
 is incompetent as allowing a party to put in evidence his own 
 declarations.' So the possession of unanswered letters is not 
 of itself evidence of acquiescence in their contents; but if they 
 contain statements which the party receiving such letters 
 would naturally deny if untrue, his omission to reply is evi- 
 dence of their truth." So, omission of a party to reply to 
 statements in a letter about which he has knowledge, when he 
 rephes to other parts of the letter, is evidence of the truth of 
 the statements.' 
 
 In criminal cases it may be shown as a presumption of guilt 
 that the accused when charged with the crime denied the 
 charge by asserting a falsehood,^ or that he fled the state and 
 lived under an assumed name, or tried to avoid arrest and trial.* 
 So, the breaking out of jail and escape of one indicted for crime,. 
 
 1 Railway v. Kell (Tex. App.), 16 S. * D(^wnpy v. Sawyer, 157 Mass. 418. 
 W. Rep. 936. 5 Thomas v. Gage. 141 N. Y. 506, 
 
 2 Dunn V. O'Keefe, 56 Hun, 648, 31 57 N. Y. State Rep. 591 ; Bank of Brit- 
 N. Y. State Rep. 311 ; Moore v. Hill, ish America v. Delafield, 37 id. 864,. 
 48 Vt. 424; Gillingham v. Charleston 126 N. Y. 418; Learned v. Tillotson,, 
 Towboat & Tr. Co., 40 Fed. Rep. 649. 97 N. Y. 12. 
 
 But see Kinney v. Folkerts, 78 Mich. SFenno v. Weston, 31 Vt. 345. 
 687; Waldrof v. Greenwood L. & S. 'Fenno v. Weston, 31 Vt. 353. 
 R. Co., 28 S. C. 157. estate v. Bradley, 64 Vt. 466. 
 
 ' St Louis F. Nat. Bank V. Nichols, 9 State v. Wilson, 111 N. C. 695-, 
 
 43 Mo. App. 385. State v. Potter, 108 Mo. 424. 
 
308 EULES OF ETIDENOB. 
 
 although it would not warrant a conviction, is evidence for the 
 consideration of the jury.' 
 
 § 5. Agents. — Admissions may be made by agents author- 
 ized to make them either expressly or by the conduct of their 
 principals. But the admissions of an agent of a party cannot 
 be given in evidence against his principal unless he is ex- 
 pressly authorized to make them, or when they are part of 
 •the res gestm? To bind the principal it must be made in ref- 
 erence to the business in which the agent is at the time era- 
 .ploj'ed and Avithin the scope of his authority.' And the state- 
 ment of an agent after the business of his agency has been 
 closed is incompetent to bind his principal.* The trustee of 
 an express trust is bound by the admissions or declarations of 
 the person whom he represents. But in some cases they are 
 receivable only so far as his own interest is concerned. Thus, 
 the declaration of an assignor for the benefit of creditors be- 
 fore the assignment is good to charge his estate with a debt, 
 but if it is made after the assignment it is inadmissible for 
 that purpose.^ The interpreter of a party acting for him at 
 his request is the agent of the party, and the statements of 
 such interpreter in a particular transaction in which he is so 
 used are the statements of the party and may be proved the 
 same as the statements of the party himself.* But an inter- 
 preter in a court is not the agent of the witness, but a sworn 
 officer of the court. An admission that a third party was au- 
 -thorized to take any steps necessary to. sell certain lands is 
 not evidence that he was authorized to employ another to sell 
 them, or to do anything except to sell them.' What the agent 
 
 1 Elmore v. State, 98 Ala. 12. $;§ 87-106, 134-137, 259, 260 ; Cliquot's 
 
 2 Gurnsey v. Rhodes, 138 N. Y. 461, Champagne, 3 Wall. 114, 140 ; Thomas 
 63 N, y. State Eep. 6; Dickey man v. v. Sternheimer, 29 Md. 26S; Weeks v. 
 -Quincy Mut. Ins.. Co., 67 Vt. 609. Barron, 38 Vt 420 ; Tuttle v. Warner, 
 
 3 Thomas v. Sternheimer, 29 Md. 28 Tex. 759 ; Centi'al Branch, etc. R 
 ,268 ; Hoggerson v. St. Louis, C. & St. R. Co. v. Butman, 22 Kan. 639 ; Peck 
 i. R. Co., 160 111. 480. V. Ritchey, 66 Mo. 114; Merchants', 
 
 4 Budlong V. Van Nostrand, 24 etc. Co. v. Leysor, 89 111. 43 ; Charles- 
 Barb. 25. ton, etc. E. R. Co. v. Blake, 12 Rich. 
 
 SBateman v. Bailey, 5 T. R. 513; (S. C.) L. 634; Black v. Bayless, 86 
 
 Myers v. Myers, 167 111. 52. N. C. 527 ; Baltimore, etc. R E. Co. v. 
 
 SFabrigas v. Mostyn, 11 St. Tr. 171. Campbell, 36 Ohio St. 647; Deraeritt 
 
 •7 1 Greenl. Ev., § 113 ; Story, Agency, v. Meserve, 39 N. H. 521 ; Indianapolis, 
 
ADMISSIONS AND CONFESSIONS. 209 
 
 has said may be what constitutes the agreement of the prin- 
 cipal, or the representations or statements niacle may be the 
 foundation of or the inducement to the agreement. Therefore, 
 if writing is not necessary by law, evidence must be admitted 
 to prove that the agent did make the statement or representa- 
 tion. So with regard to acts done, the words with which 
 those acts are accompanied frequently tend to determine their 
 quality. The party, therefore, to be bound by the act must 
 be affected by the words. But except in one of those ways, I 
 do not know how what is said by an agent can be evidence 
 against his principal. The mere assertion of the fact cannot 
 a,mount to proof of it, though it may have some relation to the 
 business in which the person making that assertion was em- 
 ployed as agent.^ When it is proved that A. is agent of B., 
 whatever A. does or says or writes in the making of a con- 
 tract as agent of B. is admissible in ovidence, because it is part 
 of the contract which he makes for B., and therefore binds B. ; 
 but it is not admissible as his account of what passes. 
 
 Where the plaintiff sued the defendant, a coal merchant, for 
 penalties for selling coals short of measure, the plaintiff in 
 support of his case called a witness to prove a conversation 
 which he had with one Pelly, who managed the defendant's 
 business. Lord EUenborough admitted the evidence, saying: 
 " Pelly appeared to be the manager and conductor of the de- 
 fendant's basiness ; what he might have said respecting a former 
 sale made by the defendant, or on another occasion, would not 
 be evidence to affect his master; but what he said respecting 
 a sale of coals then about to take place, and respecting the dis- 
 position of the coals then lying at the wharf, which were the 
 object of sale, was in the course of witness' employmenffor 
 the defendant, and was evidence to affect his master." ^ 
 
 etc. E. E. Co. V. Tyng, 63 N. Y. 653 ; St 449 ; Doe d. McDonald v. Long, 4 
 
 .Columbia Ins. Co. v. Masonheimer, U. C. (Q. B.) 146; Packet Co. v. 
 
 76 Pa. St 188 ; Mining Syndicate v. Clough, 20 Wall. 523, 540 ; Franklin 
 
 Fraser, 130 U. S. 611; Baldwin v. Bank v. Stewart, 37 Me. 519; Eowe 
 
 Doubleday, 59 Vt 7; Beasley v. San v. Canney, 139 Mass. 41; Sandberg.v. 
 
 Jose Co., 92 Cal. 388 ; Edmunds v. Palm, 53 Minn. 253. 
 
 Curtis, 8 Colo. 605 ; Williams v. Ed- i Fairlie v. Hastings, 10 Ves. 127, 
 
 wards, 94 Mo. 447 ; Cleveland Stove 138. 
 
 Co. V. Hovey, 26 Neb. 624; Oil City ^peto v. Kayne, 5 Esp. 134; Hel- 
 
 Fuel Supply Co. v. Boundy, 133 Pa. year v. Hawke, 5 Esp. 73. 
 14 
 
210 EULES OF EVIDENCE. 
 
 The plaintiffs brought an action against a railway company 
 for the value of a parcel containing money to the value of 
 $175, delivered to the defendants and alleged to have been lost 
 by the felonious act of one of their servants. The parcel had 
 been consigned by the defendants' railway to one of their sta- 
 tions, addressed to the plaintiffs, who carried on business near. 
 The plaintiffs never received the parcel, and on the day of its 
 dispatch a porter who was employed by the defendants at the 
 same station disappeared. The plaintiffs called a superintend- 
 ent of the police to prove a statement which had been made 
 to him by the station-master of the station tending to prove 
 the commission by the missing porter of the felony alleged. 
 The evidence given by the superintendent, after objection by 
 the defendants, was as follows : " I am superintendent of police 
 at Ulverston ; I know Podraore, the station-master at Ulverston. 
 In consequence of a communication in writing, I went to him 
 on Saturday, the 20th of July. He told me that a man of the 
 name of John Haslam had absconded from the service; that a 
 money parcel was missing, and he (Pod more) suspected Has- 
 lam had taken it. He said Haslam was the parcel porter. 
 Would I (witness) make inquiries about him? " A verdict hav- 
 ing passed for the plaintiffs, on application made by the de- 
 fendants for a new trial it was held that the evidence was 
 rightly admitted, since the station-master, having the sole man- 
 agement of the station, must be taken to have had authority 
 to communicate with the police, and to take steps for having 
 Haslam apprehended, and that the statements made by him 
 for the purpose of setting the police in motion were evidence 
 against the defendants.^ 
 
 § 6. Principal and surety. — A principal as such is not the 
 agent of his surety for the purpose of making admissions as ta 
 the matters for which the surety gives security ; but declara- 
 tions or admissions of the principal, made during the trans- 
 action of the business for which the surety is bound, are jn 
 most cases competent as against the surety.^ Thus, where A. 
 
 1 Kirkstall Brewery Co. v. Furness 10 Wall. 583 ; Chelmsford Co. v. Dem- 
 Railroad Co., L. E. 9 Q. B. 468. arest, 7 Gray, 1 ; Fetch v. Lyon, 9 Q. 
 
 2 Commercial F. Ins. Co. v. Morris, B. 147 ; Kirkstall Brewery Co. v. Fur- 
 105 Ala. 498; Union Sav. Co. v. Ed- ness Ry. Co., L. R 9 Q. B. 468. 
 wards, 47 Mo. 445; Stovall v. Banks, 
 
ADMISSIONS AND CONFESSIONS, 211 
 
 guaranties the payment of goods sent by B. to 0., the 
 admissions of C. of the amount of goods received, etc., are 
 competent against A. whenever made.' So, where A. guar- 
 anties the performance of any contract which B. may malce 
 with C, the admissions and declarations of B. are com- 
 petent against A, to prove the contract.^ But it is differ- 
 ent as to the admissions of a principal on a bond for the 
 faithful performance of a service, or to pay over moneys col- 
 lected, etc. In such cases the admissions, declarations and 
 confessions of the principal' after the acts are incompetent as 
 against the surety, except as to entries made in the course of 
 his duty.' Where a surety when sued for an act of his prin- 
 cipal gives the principal notice of the suit and requests him to 
 defend it, a judgment against the surety in such action will 
 be conclusive evidence against the principal. So a judgment 
 against the principal is evidence of that fact in an action 
 against the suret3\^ The general rule is that any act done by 
 the principal during the transaction of the business for which 
 the surety has agreed to be bound is part of the res gestm. The 
 surety is only liable for what the principal has actually done, 
 not for what he says he has done. As a general rule a 
 surety is not bound by the declarations of his principal ex- 
 cept when they are connected with the business in respect of 
 which the surety becomes bound and are made by the princi- 
 pal at the time of transacting that business.^ Entries made 
 by a deceased person in the course of duty, or by which he 
 had charged himself with the receipt of money, are evidence 
 against a person who has become his surety that he would 
 keep his accounts faithfully.* But the admissions of the princi- 
 pal as to his liability to a plaintiff, made after a breach of his 
 contract, are not competent against his surety. 
 
 1 Bacon v. Chesney, 1 Stark. 193. 6 Moses v. United States, 166 U. S. 
 
 2 Meade v. McDowell, 5 Binn. 195. 571 ; Re Williams' Will, 04 Hun, 163, 
 sWhitmarshv. George, 8 B. & C. 46 N. Y. State Rep. 791; Clark v. 
 
 556 ; Hotchkiss v. Lyons, 3 Black, 333 ; Montgomery, 33 Barb. 464 ; Douglass 
 
 Dawes v. Shedd, 15 Mass. 6 ; Fenner v. Rowland, 34 Wend. 35-58. 
 
 V. Lewis, .10 Johns. 38. « Hinckley v. Davis, 6 N. H. 210 ; 
 
 ^Drummond v. Prestman, 13 Mahaska v. Ingalls, 16 Iowa, 81 ; Am- 
 
 Wheat. 515 ; Ryan v. People, 165 III. herst Bank v. Root, 3 Mete. 533. 
 143 ; McMurtrie v. Black, 180 Pa. St. 64. 
 
212 ETJLES OF EVIDENCE. 
 
 § 7. Admissiou of former owner of choses in action.— The 
 
 rule in regard to admitting the declarations of the owner of 
 non-negotiable choses in action or notes overdue while hold- 
 ing the same, to the effect that the same have been paid or 
 otherwise discharged, or are invalid as against a subsequent as- 
 signee, is different in different states. Such declarations are 
 received in England, and in Yermont, Massachusetts, Maine, 
 I^ew Hampshire and Missouri.' Thus, a declaration of a prior 
 holder of a note, made while he held the note, after it was 
 due, that it had been paid to him, or that the defendant had 
 a good defense to it, is held to be competent. And although 
 the, same has been held to be the rule in New York, the con- 
 trary seems to be the consensus of opinion.^ 
 
 § 8. Sheriflf — Action for not executing process, etc. — In 
 actions against a sheriff, constable or marshal for not execut- 
 ing an execution or mandate for the collection of money, the 
 statements of the debtor admitting his debt to be due to 
 the execution creditor are competent as against them.' The 
 admissions of an under-sheriff are not admissible against 
 the sheriff, unless they tend to charge him, he being the real 
 party in the cause. The declarations of an under-sheriff are 
 evidence and charge the sheriff only where his acts might be 
 given in evidence to charge him; and then rather as acts 
 than as declarations, the declarations being considered as part 
 of the res gestm.* But whenever a person is bound by the 
 record, he is, for all purposes of evidence, the party in in- 
 terest. 
 
 § 9. Attorney and counsel. — An attorney of record is the 
 agent of his client for the purpose of making admissions, 
 whilst engaged in the actual management of the cause, either 
 in court or out, as to the particular case in which he is so act- 
 ing, so far as the conduct of the case is concerned. But state- 
 ments made by such attorney out of court are not admissions 
 merely because they would be admissions if made by the 
 
 iPocock V. Billings, 2 Bing. 269; ^Tousley v. Barry, 16 N. Y. 497; 
 
 Miller v. Bingham, 29 Vt. 83 ; Grid- Booth v. Swezey, 8 id. 276. 
 
 die V. Criddle, 31 Mo. 533; Fisher v. 'Hart v. Stevenson, 25 Conn. 499, 
 
 True, 38 Me. 534 ; Scammon v. Scam- 506 ; Williams v. Bridges, 2 Star. 42. 
 
 mon, 33 N. H. 53; Sylvester v, Crapo, < "Wheeler v. Hambright, 9 Serg. & 
 
 15 Pick. 93. R, 396. • 
 
ADMISSIONS AND CONFESSIONS. 213 
 
 client himself.^ Admissions of fact by an attorney in one ac- 
 tion are not admissible in evidence against his client in another 
 action.^ But as a general rule the admissions of attorneys of 
 record bind their clients in all matters relating to the progress 
 and trial of the cause, and are conclusive if solemn admissions. 
 Admissions, however, contained in the mere conversation of 
 an attorney cannot be received against his client although they 
 relate to the facts in controversy. 
 
 § 10. Person referred to by party. — Where a party to any 
 proceeding expressly refers to any other person for informa- 
 tion in reference to a matter in dispute, the statements of that 
 other person may be admissions as against the person who re- 
 fers to him.' 
 
 § 11. Partners and joint contractors. — Partners and joint 
 contractors are each other's agents for the purpose of making 
 admissions against each other in relation to partnership trans- 
 actions or joint contracts.* But the liability of one person 
 upon an alleged partnership contract cannot be proved by the 
 admissions of the other alleged partner.^ Admissions made 
 by a party, after the dissolution of a partnership, relating to 
 facts done during its existence, are usually held to be inad- 
 missible against the other partners." Thus, in cases in which 
 actions founded on contract have been barred by the statute 
 of limitations, no joint contractor or his personal representa- 
 tive loses the benefit of such statute by reason only of any 
 acknowledgment, or promise, or payment of any principal, in- 
 terest or other money, by any other or others of them.'' The 
 fact that two persons have a common interest in the same 
 subject-matter does not entitle them to make admissions re- 
 specting it as against each other ; ^ and where there are several 
 parties on the same side of a case, the admissions of one are 
 
 1 Wilkins v. Stedger, 33 Cal. 831 ; * Weed v. Kellogg, 6 McLean, 44 ; 
 McDeimott v. Hoffman, 70 Pa. St. 33 ; Miinson v. Wickwire, 31 Conn. 513 ; 
 Wilson V. Spring, 64 111. 18 ; Holder- 3 Smith's Lead. Cas. 387. 
 
 ness V. Baker, 44 N. H. 414. = Bank of Osceola v. Outhwaite, 50 
 
 2 Nichols V. Jones, 33 Mo. App. 657. Mo. App. 134. But see Work v. Mc- 
 ' Bidell V. Commercial Ins. Co., 3 Coy, 87 Iowa, 317. 
 
 Bosw. (N. Y.) 147 ; Turner v. Yates, « Baker v. Stackpoole, 9 Cow. 430 ; 
 16 How. (U. S.) 14 ; Allen v. Killinger, 3 Whart. Ev., § 1096. But see 1 Greenl. 
 8 Wall. 480; Chapman v. Twitohell, Ev., § 113. 
 
 37 Me. 59. ' Elliot v. Nichols, 7 Gill, 85, 96. 
 
 8 Dan T. Brown, 4 Cow. 488. 
 
214 EULES OF EVIDENCE. 
 
 not competent to affect the others who may be joined with him 
 unless there is some joint interest. If the parties have a joint 
 interest in the matter in suit, they stand to each other in a re- 
 lation similar to that of existing copartners.^ But in order to 
 be admissible, admissions made by either to affect the other 
 must be distinctly made by a party still liable upon the joint 
 contract,'^ and the court must first be satisfied by evidence 
 aliunde that such joint interest existed.^ The act of making 
 a partial payment before the debt is barred by the statute of 
 limitations, by one of several joint makers of a note, takes it 
 out of the statute ; but a payment appropriated, by the election 
 of the creditor only, to the debt in question, is not a sufficient 
 admission of that debt for that purpose.* So an admission 
 made by a joint contractor, after the death of his co-joint con- 
 tractor, will not take the case out of the statute as against 
 the latter.' 
 
 § 12. Administrators, executors, trustees, etc. — Admis- 
 sions by. — An admission of an administrator as to past trans- 
 actions with his intestate, and not within his personal knowl- 
 edge, is not admissible as part of the res gestae;^ and no 
 admission by an administrator, made before his appointment, 
 is evidence against him after such appointment;' and ordi- 
 narily an admission by one administrator is not binding upon 
 his co-administrator as against the heirs or devisees of the 
 deceased. An infant plaintiff in an action on a policy of in- 
 surance is not bound by an admission made by his guardian 
 in furnishing proofs of loss under the policy, in regard to a 
 matter not required by the contract to be stated ; ' nor the 
 
 1 Johnson v. Beardslee, 15 Johns. 3. 'Bos well v. Blackman, 12 Ga. 591; 
 
 •-'Tyler v. IJlmer, 12 Mass. 163; Rob- Rich v. Flanders, 39 N. H. 304, 336; 
 
 insou V. Hutchinson, 31 Vt. 443; Whitney v. Ferris, 10 Johns. 66. 
 
 Tredwell v. Graham, 88 N. 0. 208; * Holmes v. Green, 1 Stark. 488. 
 
 Riehl V. Evansville Ass'n, 104 Ind. e Burleigh v. Scott, 8 B. & G. 36. 
 
 70 ; Milton v. Hunter, 13 Bush (Ky.), e Davis v. Gallagher, 124 N. T. 487, 
 
 163; Bigelow v. Foss, 59 Me. 162; 36 N. Y. State Rep. 461. 
 
 Pike V. Wiggin, 8 N. H. 356 ; Forsyth 7 Prudential Ins. Co. v. Fredericks, 
 
 V. Gansom, 5 Wend. 558 ; Forney v. 41 III. App. 419. 
 
 Ferrell, 4 W. Va. 729 ; Hayes v. Bar- a Buffalo Loan, T. & S. D. Co. v. 
 
 kam, 67 Ind. 359; Smith v. Vincent, Knights Templar & M. M. A. Ass'n, 
 
 15 Conn. 1 ; Osgood v. Manhattan Co., 38 N. Y. State Rep. 346, 126 N. Y. 450, 
 
 8 Cowen, 612; Hauberger v. Root, 6 44 Alb. L. J. 47; Taft v. Church, 163 
 
 Watts & Serg. 431, 435 ; Dan v. Brown, Mass. 527 ; Ft Payne Coal & S. Co. v. 
 
 4 Cowen, 483, 493. Webster, 168 Mass, 184. 
 
ADMISSIONS AND CONFESSIONS. 215 
 
 beneficiary by statements by the insured, prior to tbe time 
 of making application for insurance, as to his age.^ Evidence 
 of admissions of liability by an agent or attorney is inadmis- 
 sible without proof that he had authority to bind his princi- 
 pal by such admissions.^ Admissions made by a party while 
 acting in her own right are inadmissible against her as ad- 
 ministratrix.' 
 
 "Where an action is brought or defended by a nominal party 
 on behalf of some other person in whom the beneficial interest 
 in the proceedings is really vested, it is obviously just that ad- 
 missions made by the latter should be binding on the party 
 who represents him. Thus, in an action by the naaster of a 
 ship against a charterer upon a charter-party which the former 
 has made on behalf of the ship-owner, the defendant is entitled 
 to give in evidence admissions made by the ship-owner on 
 whose behalf the master is suing.* So, too, admissions made 
 by a cestui que trust are binding on the trustee who sues or de- 
 fends on the former's behalf. Although it is doubtful whether 
 such an admission is receivable unless the person making it is 
 the only one who stands to gain or lose by the event of the 
 proceedings, it is at any rate clear that its operation, if received, 
 would be confined to the interests of the person making it.* 
 The extent to which a party may be bound by his admissions 
 is sometimes limited by the character in which he sues or de- 
 fends, as where he sues only as a trustee, agent or representa- 
 tive of some other person beneficially interested in the subject- 
 matter of the action. In such case only those admissions are 
 receivable in evidence which were made during the period of 
 such nominal party's interest and authority as such. 
 
 § 13. Confessions. — A confession is an admission made at 
 any time by a party charged with a crime, stating or suggest- 
 ing the inference that he committed that crime. Confessions, 
 if voluntary, are competent facts only as against the persons 
 who make them. Confessions are divided into two classes, 
 namely: judicial confessions, or those made before the magis- 
 
 1 Supreme L. of K. v. HoIIschlager, 3 United States Life Ins. Co. v. Kiel- 
 32 Colo. 213. gast, 36 111. App. 567. 
 
 2^Proctor V. Old Colony E. Co., 154 < Smith v. Lyon, 3 Camp. 465. 
 Mass. 351, 5 Doe v. Wainwright, 8 A. & E. 691 ; 
 
 May V. Taylor, 6 M. & G. 361. 
 
216 EULES OF EVIDENCE. 
 
 trate or iu court ; and extra-judicial confessions, or those made 
 elsewhere than before a magistrate. These latter are not suffi- 
 cient, standing alone, upon which to found conviction.' As a 
 general rule, a confession, to be admissible, must be affirm- 
 ativelj'' shown to have been free and voluntary and not pre- 
 ceded by any inducement to the prisoner to make a state- 
 ment, held out hy a person in authority, or not made until 
 after such inducements, if given, had clearly been removed.* 
 But it seems that where there are no objections to proof of 
 a confession, it may be shown whether voluntary or not.' ^'o 
 confession is deemed to be voluntary if it appears to the court 
 to have been caused by any inducement, threat or promise 
 proceeding from a person in authority, and having reference 
 to the charge against the person accused, whether addressed 
 to him directly or brought to his knowledge indirectly.* If 
 an inducement, threat or promise gave the accused person 
 reasonable grounds for supposing that by making a confession 
 he would gain some advantage or avoid some evil in refer- 
 ence to the proceeding against him, such confession is incom- 
 petent and inadmissible.^ But a confession is not involuntary 
 merely because it appears to have been caused by the exhorta- 
 tions of a person in authority to make it as a matter of re- 
 ligious duty, or by an inducement collateral to the proceeding, 
 or by inducements held out by a person in authority.^ The 
 prosecutors, oflBcers of justice having the prisoner in custody, 
 magistrates, and other persons in similar positions, are persons 
 in authority. The master of the accused person is not as such 
 a person in authority if the crime of which the person making 
 the confession is accused was not committed against him.^ A 
 
 1 United States v. Douglass, 3 State v. Madison, 47 La. Ann. 30; Fiis- 
 Blatchf. 207 ; Stringfellow v. State, sell v. State, 93 Ga. 450 ; Hartley v. 
 26 Miss. 157 ; People v. Hennessey, 15 People, 156 111. 264 ; Rusher v. State, 
 Wend. 147. 94 Ga. 363; State v. Harrison, 115 
 
 2 Reg. V. Thompson (1893), 3 Q. B. N. C. 706. 
 
 13 ; Clayton v. State, 31 Tex. Cr. Rep. s United States v. Knott, 1 McLean, 
 
 489. 499 ; Com. v. Knapp, 9 Pick. 496. 
 
 3 Smith V. State, 88 Ga. 637; State 6 Aaron v. State, 37 Ala. 106; State 
 T. Moore, 117 Mo. 395. v. Potter, 18 Conn. 166 ; Com. v. Drake, 
 
 * People V. Ward, 15 Wend. 331 ; 15 Mass. 161. 
 State V. Phelps, 11 Vt. 116; United 'Com. v. Howe, 3 Allen, 153; Shift- 
 States V. Cumphries, 1 Cranoh, C. C. tell's Case, 14 Gratt. 653. 
 74; State v. Hedgepeth, 135 Mo. 14; 
 
ADMISSIONS AND CONFESSIONS. 217 
 
 confession is deemed to be voluntary if in tlie opinion of the 
 court it is shown to have been made after the complete re- 
 moval of the impression produced by any inducement, threat 
 or promise which would otherwise render it involuntary.' 
 Facts discovered in consequence of confessions improperly ob- 
 tained, and so much of such confessions as distinctly relate to 
 such facts, may be proved.^ A confession is not incompetent 
 because it was made under promise of secrecy ; ^ or in conse- 
 quence of a deception practiced on the accused person for the 
 purpose of obtaining it ; * or when he was drunk ; ^ or because 
 it was made in answer to questions which he need not have 
 answered, whatever may have been the form of these ques- 
 tions;" or because he was not warned that he was not bound 
 to make such confession, and that evidence of it might be given 
 against him.' 
 
 Where the defendant objects to the introduction of a con- 
 fession the prosecution is bound to make preliminary proof 
 of its voluntary character and the defendant is entitled to 
 show that it was not voluntary. It is not enough to allow 
 him to make such proof after the confession has been ad- 
 mitted.^ Such confession is presumed to be voluntary where 
 there is nothing to raise the suspicion that it is not so.' "Where 
 the defendant raises objections to its competency', the court 
 must, on a preliminary examination, settle the fact.'" A ques- 
 tion of fact between the proof offered by the prosecution and 
 that offered by the defense on the question as to the volun- 
 tary character of the confession must be submitted to the 
 jury." The better practice is to conduct the preliminary ex- 
 
 1 State V. Carr, 37 Vt. .191 ; Fife v. e Com. v. Hosier, 4 Pa. St. 264 ; Car- 
 Cora., 29 Pa. St. 429 ; Guild's Case, 5 roll v. State, 23 Ala. 28. 
 
 Halst, 163; United States v. Kurtz, 4 ^ 1 Phillips' Ev. 420. 
 
 Cranoh, C. C. 166. « People v. Fox, 121 N. Y. 449 ; Nich- 
 
 2 Duffy V. People, 26 N. Y. 588; olson v. State, 38 Md. 140; State v. 
 Com. V. Knapp, 9 Pick. 496; Gates v. Kinder, 96 Mo. 548; Barnes v. State, 
 People, 14 111. 433. 36 Tex. 356. 
 
 3 State V. Mitchell, 1 Phillips' (N. C.) » Hopt v. Utah, 110 U. S. 574 ; State 
 L. 447. V. Davis, 34 La. Ann. 35. 
 
 * Price V. State, 18 Ohio St. 418; "Nolen v. State, 8 Tex. App. 585; 
 
 Com. V. Hanlon, 8 Brewster, 461. Willett v. People, 27 Hun, 469 ; Sim- 
 
 5 Jefferda v. People, 5 Park. Cr. Rep. mens v. State, 61 Miss. 243. 
 
 523; Eskridge v. State, 25 Ala. 30; "Com. v. Piper, 120 Mass. 185; Peo- 
 
 Com. V. Howe, 9 Gray, 110. pie v. Kurtz, 43 Hun, 336. 
 
218 EULES OF EVIDENCE. 
 
 amination by the court without the jury.^ The defendant's 
 evidence upon which his objections are based should be of- 
 fered on such preliminary examination, though it is sufficient 
 to offer it at any time.^ The defendant's attorney is entitled 
 to examine the witness who is offered to relate such confes- 
 sion in advance of his examination in chief.' Whether a state- 
 ment made by a defendant before a coroner's jury is compe- 
 tent evidence against him depends upon the fact whether at 
 the time he made such statement he was under arrest charged 
 with the commission of that crime, and whether such statement 
 was taken in the manner prescribed by statute. A voluntary 
 statement made by a party not under arrest may be used 
 against him upon his final trial ;^ but where he is under arrest, 
 in order to make his statement admissible his examination 
 must be taken in strict conformity to the statute,' though the 
 mere naked fact that at the time he makes such confession he 
 is under arrest does not render it inadmissible.^ It has been 
 said that a confession obtained by fraud or artifice is not al- 
 ways inadmissible.'' A confession obtained by threat or prom- 
 ise is voluntary unless backed up with the ability to carry it 
 out.' It seems that confessions made by a prisoner of his guilt 
 as to other crimes cannot be used upon his trial for the crime 
 charged as affecting his character or credibility.' Where the 
 prisoner, relying upon the promise of the district attorney that 
 his sentence should be modified if he would make a confession, 
 makes a confession, such confession canjiot be used against 
 him.'" It is not necessary that the promise should be made di- 
 rectly, but it is sufficient if made to one who would be natu- 
 rally supposed to communicate the same to the accused.'^ Where 
 
 1 Barter v. State, 95 Mo. 199. 'state v. Phelps, 74 Mo. 128; Peo- 
 
 2 Metzger v. State, 18 Fla. 491. pie v. Druse, 103 N. Y. 655 ; Price v. 
 
 3 State V. Drake, 83 N. C. 592. State, 18 Ohio St. 418; Campbell v. 
 < Clough V. State, 7 Neb. 320 ; Hen- Com., 84 Pa. St 187. 
 
 drickson v. People, 10 N. Y. 9. « State v. York, 37 N. H. 75; Ostine 
 
 5 People V. Mondon, 103 N. Y. 211; v. People, 51 III. 23G; State v. Low- 
 People V. Chapleau, 131 id. 366. home, 66 N. C. 689. 
 
 6 Jackson v. State, 59 Ala. 349 ; 9 State v. Symonds, 57 Me. 148. 
 State V. George, 15 La. Ann. 145 ; Peo- i» Porter v. State, 55 Ala. 95; Sim- 
 ple V. Chacom, 103 N. Y. 669; Rizzolo monds v. State, 61 Miss. 243; People 
 V. Com., J 26 Pa. St. 134; State v. v. Kurtz, 43 Hun, 335. 
 
 Suggs, 89 N. C. 527. "Rex v. Harding, 1 Ann., M. & 0. 
 
 840. 
 
ADMISSIONS AND CONFESSIONS. 219 
 
 the prisoner and the witness speak different languages, the 
 prosecution must show that the language used by the prisoner 
 was understood by both of them,* and the person to whom the 
 confession is made must have a distinct recollection of the 
 material parts of the admission.^ 
 
 § 14. Illustrations. — Although the general rule is that to 
 render confessions of a party charged with a crime admissible 
 against him it must be clearly shown that they were free and 
 voluntary,' the facts can be determined by their nature and 
 the circumstances under which they were made.* They are 
 admissible if no inducement was held out or threat made, or 
 anything done to induce the accused to believe it would be 
 better for him to confess, and worse if he did not;' and a 
 confession is presumed to be voluntary unless the contrarj'^ is 
 shown, or something appears in the confession or its attendant 
 circumstances to combat such presumption.' For an officer 
 to advise a prisoner that it would be better for him to confess 
 does not render the confession by the prisoner inadmissible.'' 
 The inducements to the making of a confession which should 
 exclude proof thereof must come from one in authority, or 
 be presented under circumstances likely to lead the defendant 
 to suppose that they were sanctioned by one in authority.^ 
 A private detective is not a person in authority whose prom- 
 ises or threats will make a confession inadmissible.' If con- 
 fessions are shown to have been voluntary and free from in- 
 fluence of promises or threats, the fact that the party was 
 under arrest at the time will not make them inadniissible."* 
 An accused who objects to a written confession of guilt of- 
 fered in evidence against him, and offers to prove that it was 
 procured by threats or promises, or under such circumstances 
 afs would render it incompetent as evidence, is entitled to 
 
 1 Berry v. Com., 10 Bush (Ky.), 15; People v. Cassaday, 133 N. Y. 112, 44 
 People V. Gillebert, 39 Cal. 663 ; Peo- N. Y. State Rep. 869. 
 
 pie V. Minisci, 46 Hun, 683. « State v. Meyers, 99 Mo. 107 ; Peo- 
 
 2 State V. Pratt, 88 N. C. 639; Ken- pie v. Barker, 60 Mich. 277, 1 Am. 
 dall V. State, 65 Ala. 492 ; Real v. State Rep. 501 ; People v. Fanning, 
 People, 43 N. Y. 270. 181 N. Y. 659, 48 N. Y. State Rep. 771. 
 
 3 Coffee V. State, 25 Fla. 501; Mur- ' State v. Meekins, 41 La. Ann. 543. 
 ray v. State, id. 528. 8 State v. Holden, 42 Minn. 350. 
 
 ■• People V. Chapleau, 121 N. Y. 266, 9 Early v. Com., 86 Va. 921. 
 30 N. Y. State Rep. 989. 1° State v. Whitfield, 109 U. S. 876; 
 
 estate V. Moorman, 37 S. C. 22; People v. Chapleau, 121 N. Y. 266. 
 
220 EULES OF EVIDENCE. 
 
 have it rejected unless the proof offered has been first heard.' 
 Where information derived from a confession leads to a dis- 
 covery of material facts Avhich go to prove the commission of 
 the crime alleged, so much of the confession as strictly relates 
 to the facts discovered, and the facts themselves, are admissi- 
 ble in evidence, although the confession was not voluntary.^ 
 
 § 15. In one's own favor. — An indorsement on the instru- 
 ment sued on, acknowledging a part payment and dated, is 
 competent and sufficient to go to the jury, if in the handwriting 
 of the creditor who is shown to have since deceased, if there 
 is extrinsic evidence of the date, and the date shows that it 
 was made at a time when its operation would be against the 
 interest of the person making it.' But an entry in a party's 
 books, though at the time against him, is not afterwards evi- 
 dence for him.* Gestures are treated as acted language, and 
 are no more admissible than declarations in favor of the party 
 making them.' A survey, though ancient, made by direction 
 of the owner of the land for his own convenience, is not ad- 
 missible evidence for him or those claiming under him, for a 
 man cannot create evidence for himself.' Thus, an officer's re- 
 turn upon a process is not admissible in his favor to prove any 
 fact stated therein except such as are required to be stated,' 
 The declarations of an alleged donor are incompetent to im- 
 peach a gift.^ So the books of account of bank dealings are 
 inadmissible in a suit between a bank and a third person to 
 show such dealings in the bank's favor.' 
 
 There are some exceptions to the rule that a party's decla- 
 rations or admissions shall not be received as evidence for 
 him. Thus, a constable's return is evidence for him in an 
 action for taking the goods away under a pretense of previous 
 levy." It is of the res ^tfsi!ffi if made strictly within his duty. A 
 
 1 People V. Fox, 131 N. Y. 449, 31 6 Anthoine v. Colt, 2 Hall (N. Y.), 
 N. Y. State Rep. 570 ; Bubster v. State, 40 1 Lazoin v. Orleans Nav. Co., 7 La. 
 33, Neb. 663. Ann. 683 ; Watson v. Osborn, 8 Conn. 
 
 2 Lowe V. State, 88 Ala. 8. 363. 
 
 8 Roseboom v. Billington, 17 Johns. ^ Bruce v. Dyall, 5 Men. (Ky.) 125. 
 182. SRomig v. Romig, 3 Rawle (Pa.), 
 
 * Schermerhorn v. Schermerhorn, 341. 
 1 Wend. 119. s State Bank v. McNiel, 1 Ha^vks 
 
 5 Bowie V. Maddox, 39 Ga. 385. (N. C), 36. 
 
 " Cornell v. Cook, 7 Cow. 310-313. 
 
ADMISSIONS AND CONFESSIONS. 221 
 
 certificate or transcript of a judgment, and an execution or 
 other proceeding in a case before him, is evidence for himself 
 by a judge or a justice.^ The rule that an indorsement of 
 part payment upon a note, where it is proved that the indorse- 
 ment was in truth made when it was against the interest of 
 the party who made it, is admissible evidence to take a case 
 out of the statute of limitations, does not prevail where the 
 statute requires the promise to be in writing in order to re- 
 move the statute bar, or requires the evidence of payment to 
 be in writing. 
 
 § 16. Whole admissions must be taken together. — Where 
 a party's oral admissions are adduced in evidence he is entitled 
 to have the whole statement taken together, to the extent of 
 all that was said by the same person in the same conversation 
 that would in any way qualify or explain the part adduced 
 against him, or tend to destroy or modify the use which the 
 adversary might otherwise make of it, but no further.^ It 
 should be stated that this rule applies equally to written and 
 verbal admissions. The whole of a confession must be re- 
 ceived in evidence to render any part of it admissible, and it 
 must be proved as it was made.' In other words, w^hen the 
 party's admission is so qualified or explained by some other 
 statement made by him at the same time that the latter is in 
 fairness necessary to present the true intention and meaning 
 of the former, then the party is entitled to have it put in evi- 
 dence as a portion of the admission. When the admission of 
 a party refers expressly or by implication to some antecedent 
 statement either of himself or his opponent or any third per- 
 son, then the statement so incorporated or referred to forms 
 a part of the whole admission within the meaning of the rule. 
 Where the plaintiff had given in evidence certain entries con- 
 tained in the account books of the defendant, and the defendant 
 thereupon insisted upon his right to have other distinct entries 
 read from other parts of the same book, though unconnected 
 with the former, it was held that, while the defendant was en- 
 'titled to have the whole of the particular entry read, he could 
 not insist upon reading distinct entries from different parts of 
 
 1 Maynard v. Thompson, 8 Wend. Insurance Co. v. Newton, 22 Wall. 
 393. 82 ; Sullivan v. McMillan, 26 Fla. 443. 
 
 2 Rouse V. Whited, 25 N. Y. 170; » State v. Donelon, 45 La. Ann. 613. 
 
222 K0LES OF EVIDENCE. 
 
 the book.' Again, where the plaintiff put in the defendant's 
 answer filed in a previous chancery suit, it was held that the 
 defendant was entitled to have also put in, as part of the plaint- 
 iff's case, the bill to which it referred.^ But if, on the other 
 hand, it is the incorporated document which is used as an ad- 
 mission, there is no right to insist on that which incorporates 
 it being put in.' The answers of a party given in course of 
 conversation are never allowed to be proved against him, with- 
 out also giving in evidence the question which drew forth these 
 answers.* But when a party gives in evidence a statement 
 made by his opponent in the course of conversation on some 
 previous occasion, that does not authorize the latter to prove 
 everything that he said on that same occasion, but only so 
 much of it as can be connected in one of the ways above men- 
 tioned with the statement that has been put in.^ So, where 
 the plaintiff had given in evidence three letters written by the 
 defendant to his partner abroad, the terms of which were 
 proved, on the non-production of the originals, by means of the 
 defendant's copy letter book, and the defendant contended that 
 he was entitled to give in evidence in his own behalf several 
 others of his own letters contained in the same book, it was 
 held that he was not entitled to give in evidence any of the 
 letters except the two which were expressly referred to in the 
 three which the plaintiff had put in.* 
 
 1 Catt V. Howard, 3 St 3. 5 prince v. Samo, 7 A. & E. 627, 
 
 2 Pepnell v. Meyer, 2 Moo. & Rob. 98. 634. 
 
 3 Long V. Champion, 2 B. & Ad. 284 « Sturge v. Buchanan, 10 A. & E. 
 * Pennell v. Meyer, 3 Moo. & Rob. 598, 604. 
 
 98, 99. 
 
OHAPTEE VIII. 
 
 BEST AND SECONDARY EVIDENCE. 
 
 L OF BEST AND SECONDAEY EVI- 
 DENCE. 
 
 § 1. In general. 
 
 2. Primary evidence and rules for 
 
 proving. 
 
 3. Proof of document when inod- 
 
 ern. 
 
 4. Proof by ordinary witness. 
 
 5. Proof of document when an- 
 
 cient 
 
 6. Custody. 
 
 7. Apparent regularity. 
 
 8. What instruments must be pro- 
 
 duced. 
 
 9. Admissions of party in place of 
 
 writing. 
 
 IL PUBLIC DOCUMENTS. 
 
 10. In general. 
 
 11. Examined copies. 
 
 12. General records of the nation. 
 
 13. Exemplifications. 
 
 14. Copies equivalent to exemplifi- 
 
 cations. 
 
 15. Certified copies. 
 
 16. Legislative acts of states and 
 
 territories. 
 
 17. Records and judicial proceed- 
 
 ings of state courts, etc. 
 
 18. Public records of state, etc., not 
 
 judicial. 
 
 19. Foreign acts of state, judg- 
 
 ments, etc. 
 
 20. Foreign and interstate laws. 
 
 21. Secondary evidence — What is. 
 
 22. Secondary evidence admissible 
 
 when. 
 
 83. Proof of account. 
 
 34 When writing need not be pro- 
 duced or accounted for. 
 
 25. SufiSciency of search, eta 
 
 26. Notice to produce — Document, 
 
 necessary when. 
 
 27. Notice to produce — Sufficiency 
 
 of. 
 
 28. Effect of notice. 
 
 29. Lawful non-production by third 
 
 person. 
 80. Secondary evidence — How 
 proved. 
 
 31. Sufficiency of secondary evi- 
 
 dence. 
 
 32. Memoranda. 
 
 38. Oral proof of contents of a dep- 
 osition. 
 
 34. Demonstrative evidence. 
 
 35. Physical examination. 
 
 36. Photographs, etc. 
 
 I. OF BEST AND SECONDAEY EVIDENCE. 
 
 § 1. In general. — It is a general rule, universal in its appli- 
 cation, that the best or highest kind of evidence which the 
 nature of the case admits of must be given, and evidence which 
 presupposes better evidence behind, in the party's possession 
 or power, is secondary evidence.^ But the rule requiring the 
 production of the best evidence excludes only evidence which 
 
 1 Paige V. New York, 58 Hun, 603, dergast, 138 Pa. St. 633; MoDuff v. 
 38 N. Y. State Rep. 844 ; Com. v. Pen- Detroit Eve. Jour. Co., 84 Mich. 1. 
 
224: ETJLES OF EVIDENCE. 
 
 itself indicates the existence of Inore original sources of infor- 
 mation.i Thus, where a contract has been reduced to writing, 
 the writing is the best evidence of its contents, and must be 
 produced unless the party satisfies the court that it has been 
 lost or destroyed, or, without fault on his part, he is unable 
 to produce it.^ There are three classes of cases where the con- 
 tents of a written instrument which is capable of being pro- 
 duced must be proved by the instrument itself, and not by 
 parol evidence. First, those instruments which the law re- 
 quires to be in writing;' second, those contracts which parties 
 have reduced to writing; and third, all other writings the ex- 
 istence or contents of which are disputed, and which are mate- 
 rial either to thp issue or to the credit of a witness.* Where a 
 writing does not fall under either of these heads there is no 
 ground for its excluding oral evidence ; as, if a written com- 
 munication is accompanied by a verbal one to the same effect, 
 the verbal communication may be received as independent evi- 
 dence, but not to prove the contents of the writing or as asub- 
 stitute for it.' Thus, secondary evidence may be sufflcier\t if 
 it is admitted without objection ; * and the rule which requires 
 the production of a written instrument in evidence does not 
 apply when the instrument is merely collateral to the issue, 
 and where the fact to be proved relates to a subject distinct 
 from the writings.' 
 
 § 3. Primary evidence and rules for proving.— Sir J. 
 Stephen, in his Digest of the Law of Evidence,' states that 
 " primary evidence means the document itself produced for 
 the inspection of the court." ' " Where a document is ex- 
 ecuted in several parts, each part is primary evidence of 
 the document. Where a document is executed in counter- 
 part, each counterpart being executed by one or some of the 
 
 1 Taylor on Ev. 281; Phillips' Ev. Belcher v. Farren, 89 Cal. 73 ; Harney 
 418. V. Farren, id. 76. 
 
 2 Taylor on Ev. 281; Meyers v, 6 Jacob v. Lindsay, 1 East, 460. 
 Bealer, 30 Neb. 280 ; Wiseman v, 6 Wright v. Eoseberry, 81 Cal. 87. 
 Northern P. R. Co., 20 Oreg., 425, 23 7 Hewitt v. State, 121 Ind. 245. 
 Am. St Rep. 185; Watson v. Eoode, 'Arts. 04, 65, 67. 
 
 27 Neb. 91; McAffee v. State, 85 Ga. 9 2 Whart. Ev. 1091, 1092; Taylor 
 
 488. V. Peck, 21 Gratt 11, 20; Loomis f. 
 
 3 Cox V. Ward, 107 N. C. 507 ; Fitz- Wadhams, 8 Gray, 557, 562 ; Crichton 
 gerald V. Adams, 9 Ga. 471. v. Smith, 34 Md. 42, 47. 
 
 * State, Thayer v. Boyd, 31 Neb. 382 ; 
 
BEST AND SEOONDAEf EVIDENCE. 225 
 
 parties only, each counterpart is ■primary evidence as against 
 the parties executing it." ^ " Where a number of documents 
 are all made by printing, lithography or photography, or any 
 other process of such a nature as in itself to secure uniformity 
 in the copies, each is primary evidence of the contents of the 
 rest ; " 2 " but where they are all copies of a common original, 
 no one of them is primary evidence of the contents of the 
 original.'" "Under the rules of the common law, if a docu- 
 ment is attested it may not be used as evidence if there be an 
 attesting witness alive, sane, and subject to the process of the 
 court, until one attesting witness at least has been called for 
 the purpose of proving its execution. If it is shown that no 
 such attesting witness is alive or can be found, it must be 
 proved that the attestation of one attesting witness at least 
 is in his handwriting, and that the signature of the person exe- 
 cuting the document is in the handwriting of that person."^ 
 The rule extends to cases in which the document has been 
 burnt,^ or canceled ; where the subscribing witness is blind ; ^ 
 where the person by whom the document was executed is pre- 
 ' pared to testify to his own execution of it ; ' and where the per- 
 son seeking to prove the document is prepared to prove an ad- 
 mission of its execution by the person who executed it, even 
 if he is a party to the cause.^ 
 
 There are several classes of cases in which a person seeking 
 to prove the execution of an attested document is not bound 
 to call for that purpose either the party who executed the 
 deed or any attesting witness, or to prove the handwriting of 
 any such part}'', viz. : 
 
 (1) Where his opponent produces it when called upon and 
 claims an interest under it in reference to the subject-matter 
 of the suit.' 
 
 1 West V. Davis, 7 East, 363 ; Car- 8 Call v. Dunnicg, 4 East, 53 ; Fox 
 roll V. Peake, 1 Pet. 18, 23. v. Reil, 3 Johns. 477 ; Turner v. 
 
 2 Rex V. Watson, 3 Stark. 129. Green, 3 Cranch, C. C. 303. 
 
 •■^ Nodeu V. Murray, 3 Camp. 334 ; 1 "Pearce v. Hooper, 3 Taunt 60 
 
 Wliart. Ev., § 98. Jackson v. Kingsley, 17 Johns. 158 
 
 * Heckhart v. Haine, 6 Bin. 16 ; 1 Rearden v. Miuter, 5 M. & G. 204 
 
 Whart. Ev., § 723. Jackson v. Halstead, 5 Cow. 216, 218 
 
 5 Gillies V. Smither, 2 Stark. 528. Collins v. Boynton, 1 Q. B. 118; Me- 
 
 «Cronk v. Frith, 9 C. & P. 197. Gregor v. Wait, 10 Gray, 73. 
 
 7 Story V. Lovett, 1 E. D. Smith, 153. 
 15 
 
226 KULES or evidence. 
 
 (2) When the person against whom the document is sought 
 to be proved is a public oflBcer bound by the law to procure 
 its due execution, and who has dealt with it as a document duly- 
 executed. ^ 
 
 (3) "When it is a document required by law to be registered, 
 and a certified copy would be admissible in evidence.^ 
 
 (4:)'"W"hen the instrument is not directly in issue, but comes 
 incidentally in question in the course of the trial.' 
 
 (5) If the attesting witness denies or does not recollect the 
 execution of the document, its execution may be proved by 
 other evidence.* 
 
 "Whenever a statute authorizes the acknowledgment of an 
 instrument, providing at the same time that such instrument 
 shall be admissible in evidence on proof of its acknowledg- 
 ment, then, if the conditions required by the statute as pre- 
 requisites of the acknowledging appear from the record to 
 have been observed, it is not necessary to call the attesting 
 witnesses, but each instrument may be put in evidence after 
 the acknowledgment required by the statutes, either by force 
 of the statutes or at common law, by proving the execution.' 
 
 § 3. Proof of document when modern. — With regard to 
 the proof of documents, it is to be noted that the proof required 
 of a particular document may vary to some extent according 
 to the purpose for which it is tendered. For instance, in order 
 to prove a deed of grant containing certain recitals, it will be 
 necessary, if it is tendered in evidence to establish the grant, 
 to prove that it was duly signed, sealed and delivered; whereas 
 if it were tendered only to prove some fact admitted in the 
 recitals, it will not be absolutely necessary to prove any of 
 these conditions, if it can be shown that the recitals were in- 
 serted or adopted by the party against whom they are tend- 
 ered. But in the latter case it is not really relied on as a deed. 
 
 iPlumer v. Brisco,,ll Q. B. 46; 19 Me. 381; Fairfax v. Fairfax, 2 
 
 Bailey v. Bidwell, 13 M. & W. 73. Cranch, C. C. 25. 
 
 n Greenl. Ev., § 571; Knox v. Sil- * Talbot v. Hodson, 7 Tenn. 251; 
 
 loway, 1 Faii-f. (Me.) 201, 316; Scan- Hooker v. Bowles, 3 Blackf. 90; Hall 
 
 Ian V. Wright, 13 Pick. 523 ; Burg- v. Phelps, 2 Johns. 451 ; Whitaker v. 
 
 hart V. Turner, 13 id. 534; Kelsey v. Salisbury, 15 Pick. 534. 
 
 Hammer, 18 Conn. 311. 5 Houghton v. Jones, 1 Wall, 702, 
 
 3 1 Greenl. Bv., § 573; Curtis v. 700; also, 1 Whart. Ev., § 740. 
 Belknap, 31 Vt. 433 ; Avers v. Hewitt, 
 
BEST AND SECONDAEY EVIDENCE. 227 
 
 This distinction between a document tendered as an operative 
 instrument and the same document used merely as a medium 
 of proof of some fact referred to in it must be borne in mind 
 throughout. The posting of letters may be pro^'ed by entries 
 made by deceased clerks in the course of their duty ;i and the 
 copy of a document, the original of which is withheld by the 
 other side, may be proved in like manner.^ An attesting 
 witness may refresh his memory as to the execution of a deed 
 which he is called to prove by inspecting his signature to the 
 attestation clause.' In like manner there are many facts con- 
 nected with the proof of documents as to which judicial notice 
 and presumptions are applicable. If the genuineness of a deed 
 or will is impeached on the ground of forgery or fraud, and it 
 is alleged that deceased attesting witnesses were accomplices 
 therein, evidence is admissible of their good character. So 
 proof of the execution of a document by mere proof of the 
 handwriting of a deceased attesting witness involves a special 
 exception to the general rule against hearsay. Another im- 
 portant exception is admitted in the case of wills. Wherever 
 there is a question as to the validity of a will,* or as to the date 
 of an erasure or interlineation,' or as to the contents of a will 
 that has been lost or destroyed, declarations made by the tes- 
 tator are admissible to prove these facts.' 
 
 § 4t. Proof Iby ordinary witnesses. — The ordinary mode by 
 which a person authenticates any document as being his own 
 act or communication is by writing at the foot of it his own 
 name, called his signature. But sav^ where it is so prescribed 
 by statute, this is not the sole mode of authentication or sig- 
 nature. It has been held that a printed bill-head containing a 
 man's name may be a good memorandum signed by him, within 
 the meaning of the statute of frauds, if he writes the body of 
 the memorandum beneath it.' Handwriting or signature is 
 ordinarily proved in one of the following ways : ^ The best 
 
 iHagedorn v. Eeid, 3 Camp. 377. « Johnson v. Syford, L. R. 1 P. D. 
 
 2Pi-itt V. Fairclough, 3 Camp. 805. 547. 
 
 'Maugham v. Hubbard, 8 B. & C. ' Saunderson v. Jackson, 2 R & P. 
 
 . 14, 16. 338 ; Schneider v. Norris, 2 M. & S. 
 
 4 Doe V. Allen, 8 T. R. 147; Ellis v. 286; Tourret v. Cripps, 48 L. J. Ch. 
 Hardy, 1 Moo. & Rob. 525. 567. . 
 
 5 In the Goods of Sykes, L. R, 3 P. 8 Doe v. Suckermore, 5 A. & E. 703, 
 & D. 26 ; Dench v. Dench, 2 P. & D. 60. 730, 781. 
 
228 EtJLES OF EVIDENCE. 
 
 evidence of all, assuming of course that the witness is not un- 
 friendly, is to call either the person who wrote it or some per- 
 son who saw him write it, and so prove the fact by direct evi- 
 dence. Secondly, when such evidence is not available, some 
 witness must be called who can swear to the identity of the 
 handwriting from his previous knowledge of other handwrit- 
 ing of the same person. That knowledge may have been ac- 
 quired by seeing the person write, in which case it will be 
 stronger or weaker according to the number of times and the 
 periods and other circumstances under which the witness has 
 seen him write; but it will be sufficient knowledge to admit 
 the evidence of the witness (however little weight may be at- 
 tached to it in such cases), even if he has seen him write but 
 once, and then merely sign his name.^ Or the knowledge may 
 have been acquired by the witness having seen letters or other 
 documents which purported to be the handwriting of the per- 
 son in question, and having afterwards communicated person- 
 ally with that person upon the contents of those letters or 
 documents, or having otherwise acted upon them by written 
 answers, producing further correspondence or acquiescence by 
 the person in some matter to which they relate, or by the wit- 
 ness transacting with such person some business to which they 
 relate, or by any other mode of communication between the 
 witness and such person which would in the ordinary course 
 of the transactions of life induce a reasonable presumption 
 that the letters or documents were the handwriting of such 
 person.^ And, of course, evidence of the identity of the writer 
 must be added aliunde, if the witness be not personally ac- 
 quainted with him.^ The proof of handwriting always in- 
 volves, of course, the identification of the writer. But it some- 
 times happens that the handwriting or signature of a document 
 cannot be identified in any of these ways as that of the person 
 who is alleged to have written or signed it, but only as that of 
 some person of the same name, so that some further evidence 
 is necessary to establish personal identity. The mere identity 
 of the name of the person proved to have written or signed 
 
 1 Carrells v. Alexander, 4 Esp. 87 ; & M. 90 ; Tharpe v. Cisburne, 2 C. & 
 Powell V. Ford, 3 St. 164 ; Lewis v. P. 21. 
 
 Sapio, M. & M. 39. s Doe v. Suckermore, 5 A. & B. 703, 
 
 2 B. N. P. 236 ; Carey v. Pitt, Peake, 781. 
 Add. Cas. 130 ; Harrington v. Fry, R 
 
BEST AND SEOONDAET EVIDENCE. 229 
 
 the document and of the person sought to be charged with it 
 will frequently he prima facie evidence of their identity, unless 
 the name happens to be a very common one.^ If, however, a 
 doubt is fairly thrown on the correctness of this inference, 
 some further evidence of identity is necessary. The nature of 
 this will depend upon circumstances; thus, evidence maybe 
 given of the presence of the person to whom the document is 
 attributed at the time and place when it was executed, or of 
 identity not only of name, but also of address or occupation,^ 
 or of some acknowledgment of the document by the person 
 charged with it. 
 
 Sealing is ordinarily proved in one of the following ways : 
 The party may call a witness who saw the seal actually affixed 
 or impressed at the time of signature, or, if it was then already 
 affixed or impressed, saw it acknowledged by the pei'son who 
 signed the document. The sealing may also be inferred from 
 the fact that the person alleged to have sealed it is proved to 
 have signed the instrument at a time when it contained a dec- 
 laration that the seal opposite to the signature is his seal.' 
 This inference may be drawn notwithstanding the absence of 
 any apparent impression or seal.* If the document still bears 
 the seal, its due sealing may also be inferred from the mere 
 proof of the signature standing against it.' 
 
 Delivery is ordinarily proved in one of the following ways : 
 The best way is to'call some witness who can prove either that he 
 delivered the thing himself or that he saw it delivered by the 
 person who did. In the case of a letter or other document deliv- 
 ered by hand, the messenger may be called to prove its delivery 
 at the time, in the mode, and to the person alleged ; or if he 
 cannot be called, his delivery of it may be proved in some other 
 way, as by a witness who saw him deliver the document in 
 question ; or in the case of the messenger's death, by some ad- 
 missible entry made by him in his books. If the letter was 
 sent by post, the person who posted it should be called to prove [ 
 that fact. But it is not enough for the sender's clerk to say ' 
 
 1 Jones V. Jones, 9 M. & W. 75; 3 Talbot v. Hodson, 7 Taunt. 351. 
 Sewell V. Evans, 4 Q. B. 636 ; Hamber < Re Sandilands, L. R. 6 C. P. 411. 
 V. Roberts, 7 C. B. 861. ' Giellier v. Neale, Peake, 147 ; Fas- 
 
 2 Whitelocke v. Musgrove, 1 Cr. & sett v. Brown, id. 33. 
 M. 511, 538; Greenshields v. Craw- 
 ford, 9 M. & W. 314 
 
230 EULES OF EVIDENCE. 
 
 that the letter was sent by post on a particular clay, if he has 
 no recollection whether it was put in the post by himself or 
 another clerk ;i nor for the sender to prove that it was the 
 regular usage of his office that letters for the p?st were always 
 deposited on a particular table from which they were carried 
 by a porter in his employ to the postoffice, and that in the 
 particular case the letter was so put on the table, unless he 
 also calls witnesses to prove that in this instance the porter 
 took the letters from the table to the post ; for the court will 
 not presume that the course of business in a private office has 
 the regularity of a public department;^ but if the porter is 
 called, the mere fact that he has no recollection of the particu- 
 lar letter in question will not exclude his evidence if he can 
 swear that he invariably carried to the postoffice all the letters 
 found upon the table on which the particular letter is proved 
 to have been placed.' 
 
 When a letter has once been proved in one of these ways to 
 have been duly posted, it will be presumed, till the contrary is 
 shown, that it was duly delivered in accordance with the ordi- 
 nary course of business in the postoffice. Where the date of 
 the posting of the letter cannot be accurately proved, the time 
 of its delivery may \)Q prima facie inferred from the post-mark 
 of the envelope in which it is proved to have been contained, 
 as a post-mark is generally prima facie evidence not only of 
 the existence of the letter at the date signified by the mark,* 
 but also of its delivery according to the ordinary course of 
 business of the postoffice to the person to whom it was ad- 
 dressed;' but in one case it was held that some evidence was 
 requisite that the post-mark was genuine;^ and in any case 
 where doubt is thrown upon it, it seems that some evidence 
 should be given by some person who is acquainted with it.' 
 
 Where by statute attestation is requisite to the validity of 
 a document, its execution must still (unless special provision 
 is made to the contrary) be proved, in accordance with tlie 
 old common-law rule, by or through the attesting witnesses. 
 
 1 Hawkes v. Salter, 4 Bing. 715. 6 Avchangelo v. Thompson, 3 Camp. 
 
 '^ Hetherington v. Kemp, 4 Camp. 630 ; Kent v. Lowen, 1 id. 177. 
 
 193. 6R. V. Watson, 1 Camp. 215; 
 
 3 Id. Fletcher v. Braddyll, 3 St. 64. 
 
 4 Fletcher v. Braddyll, 3 St. 64. ' Abbey v. Lill, 5 Bing. 399. 
 
BEST AND SECONDAEY EVIDENCE. 231 
 
 Where, on the other hand, the attestation is merely voluntary, 
 the party adducing the document in evidence has the option 
 of proving it either by means of the attesting witnesses, or by 
 ordinary witnesses, or by notice to admit in cases where that 
 process is applicable. 
 
 The proof of a document by means of attesting witnesses is 
 governed by the same rules whether the attestation was com- 
 pulsory or not, and is as follows : Although two or more attest- 
 ing witnesses may be necessary to the valid execution qf a 
 document, it is in law sufficient to call one alone, provided 
 that he can testifj'' to the observance of all the requisite for- 
 malities.^ The witness should be able to prove that he saw 
 the document duly executed by the party by whom it purports 
 to have been executed; and for this purpose he may refresh 
 his memory by inspecting his signature.^ Where an attesting 
 witness is proved to be dead,'' or out of the jurisdiction of the 
 court,* or insane,^ or is missing and cannot after diligent in- 
 quiry be found,^ or is incompetent to testify in the particular 
 proceedings by reason of interest,'' it will be sufficient to prove 
 his handwriting. But this must be taken subject to this quali- 
 fication: that such evidence of his handwriting can only be 
 given where no other attesting witness can be produced.^ The 
 handwriting of the witness thus proved, the attestation clause 
 becomes evidence of everything that is stated in it, as that the 
 document was duly signed, sealed and delivered in the pres- 
 ence of the attesting witnesses by the party who purports to 
 have so signed, sealed and delivered it.^ But if an attesting 
 witness when called, or the attestation clause (in case of his 
 death), does not identify the person who executed the docu- 
 ment with the particular person of the same name who is al- 
 leged by the party tendering the document to have executed 
 
 1 Wright V. Doe, 1 A. & E. 3, 23 ; Clubb v. Edwards, 2 Moo. & Rob. 800 ; 
 
 Forster v. Forster, 33 L. J. (P. M. & D.) In re Mair's Estate, 43 L. J. Ch. 883. 
 
 113. sCurrie v. Child, 3 Camp. 383. 
 
 2 Maugham v. Hubbard, 8 B. & C. 6 Crosby v. Percy, 1 Taunt. 364; 
 
 14, 16 ; Whitelock v. Musgrave, 1 C. Burt v. Walker. 4 B. & A. 697. 
 
 & M. 511, 519. ' ' Cunliffe v. Sefton, 3 East, 183. 
 
 3 Barnes V. Trompowsky, 7 T. R. 265, sphilj. Ev. (10th ed.), 1853,^01. 1, 
 
 266 ; Prince v. Blackburn, 8 East, 250 ; p. 432 ; Wright v. Doe, 1 Ad. & E. 3. 
 
 Adam v. Kerr, 1 B. & P. 360. 9 Milward v. Temple, 1 Camp. 375; 
 
 « Barnes V. Trompowsky, 7 T. R. 265, Whitelock v. Musgrove, 1 C. & M. 
 
 266 ; Prince v. Blackburn, 2 East, 250 ; 511, 518, 519. 
 
232 EULES OF EVIDENCE. 
 
 it, some evidence of identity must, of course, be given.^ If the 
 genuineness of an attested document is impeached on the 
 ground of forgery or fraud, and it is alleged that deceased at- 
 testing witnesses were accomplices therein, evidence is admis- 
 sible of their good character.^ 
 
 § 5. Proof of document when ancient. — The general rule 
 is that an ancient document proves itself;' or, in other words, 
 it is presumed that it was written, signed, sealed, delivered or 
 attested, as the case may be, by the persons, in the mode and 
 at the time and place that it purports to have been, provided 
 always that it is produced from proper custody and that the 
 appearance of it when inspected is not inconsistent with its 
 authenticity.* But inasmuch as the proof of a document al- 
 ways involves the identification of the parties to it, the rule 
 must be understood subject to this : that if an ancient docu- 
 ment does not itself state or otherwise identify the names or 
 characters of the parties to it, some sort of evidence will be 
 necessary before it will be admissible. On these conditions 
 being fulfilled an ancient document becomes admissible in evi- 
 dence, although its whole effect may be afterwards displaced 
 by other evidence adduced to show that it was canceled after 
 execution, or that it never was in fact duly executed, or even 
 that it was a forgery. In the case of a will the period of thirty 
 years is reckoned, not from the testator's death, but from the 
 date of execution of the instrument ; ' and the fact that the evi- 
 dence thus dispensed with could in fact be adduced, as where, 
 for instance, the attesting witnesses are still living, does not 
 preclude the operation of the rule." 
 
 § 6. Custody. — This condition of admissibility must be proved 
 b}' some evidence.' Proper custody does not necessarily mean 
 the most appropriate custody, the custody of the person en- 
 titled in law to hold the document, but either that or any other 
 custody which in the circumstances of the case appears to the 
 court to be consistent with its genuineness.^ 
 
 1 Whitelock v. Musgrove, 1 C. & M. * Meath v. Winchester, 3 Bing. N. C. 
 511, 518, 519. 183, 200. 
 
 2 Doe V. Stephenson, 3 Esp. 284 ; ^ Doe v. Wolley, 8 B. & C. 33. 
 Doe V. Walker, 4 id. 50 ; Durham v. 6 Doe v. Burdette, 4 A. & E. 1, 19. 
 Beaumont, 1 Camp. 207, 310 ; Provis ^ Earl v. Lewis, 4 Esp. 1 ; Evans v. 
 v. Reed, 5 Biiig. N. C. 435. Bees, 10 A. & E. 151. 
 
 3 Doe V. Burdette, 4 A. & E. 1, 19. 8 Doe v. Phillips, 8 Q. B. 158 ; Doe v. 
 
 Keeling, 11 Q. B. 884. 
 
BEST AND SECONDARY EVIDENCE. 23S 
 
 § 7. Apparent regularity. — If there is anything on the face 
 of the document inconsistent with its authenticity it will be 
 inadmissible, unless evidence can be adduced to explain the 
 matter and remove the doubt. 
 
 §8. What instruments must be produced. — It has been 
 held that secondary evidence is not admissible tptake the place 
 of warrants,' executions,^ returns on executions,^ bills of sale,* 
 maps,* letters,^ an order of court,'' the filing of an intention to 
 become a citizen,^ the proceedings of the legislature, and the 
 contents of a bill introduced therein,' the action of a highway 
 commissioner in reference to building a bridge,'" and any and 
 all writings the contents of which are material to the issue." 
 Certified copies of maps from a public office are not admissible 
 in evidence to locate a disputed boundary, in the absence of 
 any evidence rendering the original admissible or of any stat- 
 ute requiring such maps to be filed in such office.'^ 
 
 §9. Admissions of pai-ty in place of writing.— While in 
 Ifew York it has been held that the admissions of a party to 
 the record can only be resorted to as evidence where direct 
 parol testimony of the facts thus sought to be proved would be 
 admissible, and consequently that they cannot be received for 
 the purpose of proving matters of record, nor the contents of 
 a written instrument, except in those cases where ground has 
 been laid for the reception of secondary evidence," the general 
 rule seems to be that parol admissions of a party to the record, 
 and his acts amounting to admissions, are received as primary 
 evidence, although they relate to the contents of a deed or 
 other instrument which are directly in issue ; '* and no founda- 
 tion need be laid for proof of the admissions of a party against 
 his own interest.'' 
 
 1 state V. Atherton, 16 N. H. 203. n Beaudeau v. Cape Girardeau, 71 
 
 2 Sweetser v. Drove, 19 Ala. 255. Mo. 392 ; Thayer v. Boyd, 31 Neb. 683 ; 
 SMcDade v. Mead, 18 Ala. 314. Belcher v. Farren, 89 Cal. 73; Bowick 
 * Yarborough v. Hudson, 19 Ala. 653. v. Miller, 31 Oreg. 25 ; Cox v. Ward, 
 5 Pool V. Myers, 21 Miss. 466. 107 N. C. 507. 
 
 SHalcombe v. State, 38 Ga. 66. i^Donohue v. Whitney, 188 N. Y. 
 
 TStillman v. Palis, 38 111. App. 408 ; 178, 44 N. Y. State Rep. 508. 
 
 Bob V. Letsher, 30 Mo. App. 43. " Man v. Show, 56 Hun, 647, 33 N. Y. 
 
 8 Bode V. Trimmer, 82 Cal. 513. State Rep. 356. 
 
 9 Saokrider t. Saginaw County Su- i-* Loomis v. Woodham, 8 Gray 
 pervisors, 79 Mich. 59. (Mass.), 557. 
 
 lo State ex rel. Greenwood v. Board '^ Hunter v. Gibbs, 79 Wis. 70 ; Bart- 
 of Supervisors, 135 III. 334 lett v. Cheesebrough, 33 Neb, 839 ; 
 
234 EULBS OF EVIDENCE. 
 
 II. PUBLIC DOCUMENTS. 
 
 § 10. In general. — Sir J. Stephen, in his Digest of the Law 
 of Evidence,' states the rule to be, that " when a statement 
 made in any public document, register or record, judicial or 
 otherwise, or in any pleading or deposition kept therewith, 
 is in issue, or is relevant to the issue in any proceeding, the 
 fact that that statement is contained in that document may 
 be proved. The contents of any public document may be 
 proved by producing the document itself for inspection from 
 proper custody, and identifying it as being what it professes 
 to be." 2 
 
 § 11. Examined copies. — The contents of anj'^ public docu- 
 ment whatever may in all cases be proved by an examined 
 copy. An examined copy is a copy proved by oral evidence 
 to have been examined with the original and to correspond 
 therewith. The examination may be made either by one per- 
 son reading both original and the copy, or by two persons, one 
 reading the original and the other the copy, and it is not nec- 
 essary that each should alternately read both.' The document 
 must be in a character and language that the witness under- 
 stands ; * and he must also have read the whole of it.* The 
 seal of the state proves itself.^ In a modern case before a 
 committee of privileges of the House of Lords, where, in order 
 to prove a memorandum roll in the court of exchequer in 
 Dublin, a witness produced a copy of the roll, which he said 
 he had compared with the original according to the usual cus- 
 
 Movey v. Hoyt, 63 Conn. 543, 4T Alb. Johns. 514: Spaulding v. Vincent, 24 
 
 L. J. 310. Vt. 501 ; Ennis v. Smith, 14 How. 
 
 1 Arts. 74, 75, etc. (U. S.) 400, 436 ; United States t. Wig- 
 
 ^ Stephen's Dig. of Law of Ev., art gins, 14 Pet. 334, 346 ; Stewart v. 
 
 74. Swanzy, 23 Miss. 503 ; Torbett v. Wil- 
 
 3 3 Ph. Ev. 200, 331 ; T. E., §§ 1379, son, 1 Stew. & Port 200 ; Allen v. 
 1389; E. N. P. 113: Whitehouse v. Thaxter, IBlaokf. 399; Thompson v. 
 Beckford, 9 Fost471, 480; 1 Greenl. Stewart, 8 Conn. 171; Warener v. 
 Ev., §S 91, 508; 1 Whart Ev., § 94; King's Mill, 7 Q. B. (U. C.) 409; Sid- 
 Dig. Law Ev., art 75. don v. Hoduett 23 Fla. 442 ; Gorm- 
 
 4 Crawford Peerage Case, 3 H. L. ley v. Uthe, 116 111. 643; Coan v. 
 O. 544, 545. Flagg, 133 U. S. 117. 
 
 SNelthrop v. Johnson, Clayt 143, ^Robinson v. Gilman, 7 Shepl. 299; 
 
 pi. 259 ; Church V. Hubbart 3 Cranch, Womack v. Dearman, 7 Port 513; 
 
 186; Buttrick v. Allen, 8 Mass. 373; Williams v. Wilkes, 3 Harris, 228; 
 
 Packard v. Hill, 7 Cowen, 434, 443; Stanglein v. State, 17 Ohio St 453; 
 
 Gardere v. Columbian Ins. Co., 7 Watson v. Walker, 28 N. H. 471, 496, 
 
BEST AND SECOND AEY EVIDENCE. 235 
 
 torn of the office, — the clerk in the office holding the original 
 and reading it, while the witness held the copy, without 
 changing hands, — and what he heard the clerk read corre- 
 sponded with what the witness saw in the copy, the commit- 
 tee held that this practice was incorrect; that the witness 
 could not swear that the document produced was a close copy, 
 and therefore it could not be received ; that it was important 
 it should be known that copies must be compared in a different 
 manner, viz., by changing hands. The same witness having 
 said, on producing a copy of a statute-roll, that besides com- 
 paring it in the usual way in the office he read it with the 
 original himself, the document was received as evidence.* 
 
 § 12. General records of the nation. — Copies of any books, 
 records, papers or documents in any of the executive depart- 
 ments or public offices of the federal government, authenti- 
 cated under the seals of such departments or officers respect- 
 ively, and certified by the officer at the head of such office for 
 the time being, will be admitted in evidence equally with the 
 original thereof.^ Production of a certified copy is proof of 
 the execution of the instrument.^ The best-evidence rule has 
 no application to the case of public writings. A properly 
 authenticated copy is a recognized equivalent for the original 
 itself.^ It seems that parol evidence is inadmissible in the ab- 
 sence of evidence that the record, or a copy thereof, cannot be 
 obtained.^ 
 
 § 13. Exemplifications. — An exemplification is a copy of a 
 record set out either under the great seal or under the seal 
 
 1 Slane Peerage Case, 5 CI. & F. 43. Smith v. Smith, 43 N. H. 536 ; Ken- 
 
 2R S. U. S., gg 883-898. nedy v. Reynolds, 37 Ala. 364; Alex- 
 
 ' Gragg V. Learned, 109 Mass. 167 ; ander v. Foreman, 7 Ark. 353 ; Chase 
 
 Baton V. Campbell, 7 PioU. 10 ; Knox v. Savage, 55 Me. 543 ; Piatt v. Haner, 
 
 V. Silloway, 1 Fairf. 301 ; Webster v. 37 Mich. 167 ; Ellis v. Huflf, 39 111. 449 ; 
 
 Calden, 55 Me. 165, 171 ; Kelsey v. Cook v. Wood, 1 McCord, 139 ; Lyons 
 
 Hanmer, 18 Conn. 311 ; 1 Greenl. Ev., v. Gregory, 3 Hen. &Munf. 337 ; Hilts 
 
 § 573, n. ; 1 Whart, Ev., § 741 ; 4 v. Colvin, 14 Johns. 183 ; Smith v. 
 
 Greenl. Cruise on R. P., tit. 33, ch. 39, West et al., 64 Ala. 34 ; Stockbridge 
 
 § 1, n. ; Thurmau v. Cameron, 34 v. West Stockbridge, 13 Mass. 399 ; 
 
 Wend. 87; Loomis v. Bedel, 11 N. H. Simpson v. Norton, 45 Me. 381; Hall 
 
 74. V. Manchester, 40 N. H. 410 ; Burton 
 
 4 Crawford V. Branch Bank, 8 Ala. v. Driggs, 30 Wall. 135; Eaton v. 
 79. Hall, 5 Mete. 387. 
 
 5 Cornet v. Williams, 30 Wall. 336; 
 Wynne v. Aubuchon, 23 Mo. 30; 
 
236 EULES OF EyiDENCB. 
 
 of a court. A copy made by an officer of the court bound by 
 law to make it is equivalent, in courts of the same state, to 
 an exemplification, though it is sometimes called an office 
 copy. An exemplification is equivalent to the original docu- 
 ment exemplified.' 
 
 § 14. Copies equivalent to exemplificatioiis. — A copy made 
 by an officer of the court who is authorized to make it by a 
 rule of the court, but not required by law to make it, is re- 
 garded as equivalent to an exemplification in the same cause 
 and court, but in other causes or courts it is not admissible 
 unless it can be proved as an examined copy.^ 
 
 § 15. Certified copies, — It is provided by many statutes in 
 the different states that various certificates, official and pub- 
 lic documents, documents and proceedings of corporations 
 and of joint-stock and other companies, and certified copies of 
 documents, by-laws, entries in registers and other books, shall 
 be receivable in evidence of certain particulars in courts of 
 justice, provided they are respectively authenticated in the man- 
 ner prescribed by such statutes. Whenever, by virtue of anj' 
 such provision, any such certificate or certified copy as afore- 
 said is receivable in proof of any particular in a,nj court of 
 justice, it is admissible as evidence if it purports to be authen- 
 ticated in the manner prescribed bj' law, without proof of any 
 stamp, seal or signature required for its authentication or of 
 the official character of the person who appears to have signed 
 it.' The edition of the laws and treaties of the United States 
 published by Little & Brown is competent evidence of the 
 several public and private acts of congress, and of the several 
 treaties therein contained, in all the courts of law and equity 
 and of maritime jurisdiction, and in all the tribunals and pub- 
 lic offices of the United States and of the several states, without 
 any further proof or authentication thereof.* 
 
 § 16. Legislative acts of states and territories. — The Ke- 
 vised Statutes of the United States provide that the acts of 
 the legislature of any state or territory, or of any country 
 
 11 Whart Ev., §§ 107, 104; Dig. 32 Whart. Ev„ §§ 1313, 1314; 1 
 Law Ev., art. 77. Gieenl. Ev., § 200; BuUen v. Arnold, 
 
 2 1 Whart. Ev., § 104 ; Dig. Law Ev., 31 Me. 583; Ross v. Read, 1 Wlieat. 
 art 78. 482; Dig. Law Ev., art 78. 
 
 * R. S. U. a, g 908. 
 
BEST AND SECONDAEY EVIDENCE. 237 
 
 subject to the jurisdiction of the [Jnited States, shall be au- 
 thenticated by having the seals of such state, territory or 
 country afiBxed thereto ; but this provision does not exclude 
 any other method of proof allowed by the state law, or ad- 
 mitted by the court 'where the same may be offered in evi- 
 dence.' 
 
 § 17. Records and judicial proceedings of state courts, 
 etc. — The Eevised Statutes of the United States provide that 
 the records and judicial proceedings of the courts of any state 
 or territory, or of any country subject to the jurisdiction of 
 the United States, shall be proved or admitted in any other 
 court within the United States by the attestation of the clerk, 
 and the seal of the court annexed, if there be a seal, together 
 with the certificate of the judge, chief justice or presiding 
 magistrate that the said attestation is in due form. And the 
 said records and judicial proceedings so authenticated shall 
 have such faith and credit given to them in every court within 
 the United States as they have by law or usage in the courts 
 of the state from which they are taken ; but this provision does 
 not exclude any other method of proof allowed by the state 
 law, or admitted by the court where the same may be offered 
 in evidence.^ 
 
 § 18. Public records of state, etc., not judicial. — The Ee- 
 vised Statutes of the United States provide that all records 
 and exemplifications of books which may be kept in any public 
 office of any state or territory, or of any country subject to the 
 jurisdiction of the United States, not appertaining to a court, 
 shall be proved or admitted in any court or office in any other 
 state or territory, or in any such country, by the attestation 
 of the keeper of said records or books, and the seal of his 
 office annexed, if there be a seal, together with a certificate 
 of the presiding justice of the court of the county, parish or 
 district in which such office may be kept, or of the governor 
 
 1 R S. U. S., g 905. State v. Clark, 46 La. Ann. 1409 ; 
 
 2 R. S. U. S., § 905 ; Turnbull v. Neudeck v. Grand Lodge A. O. U. W., 
 Payne, 95 U. S. 418, 423 ; Re Juster's 1 Mo. App. Rep. 330 ; Sargent v. Evan- 
 Succession, 47 La. Ann. 330 ; Com. v. ston, 154 111. 268 ; Schaeflfer v. Wun- 
 Hayden, 163 Mass. 453 ; Byers v. Wal- derle, 154 id. 577 ; Kives v. Lamar, 94 
 lace, 87 Tex. 513 ; People v. Raines, 20 Ga. 186 ; Carr v. Fife, 156 U. S. 494 ; 
 Colo. 489 ; People v. McKane, 143 N. Comstock v. Cameron, 41 Neb. 814. 
 Y. 455 ; King v. Johnson, 44 Ga. 665 ; 
 
238 EULES OF EVIDENCE. 
 
 or secretary of state, the chajiicellor or keeper of the great seal 
 of the state or territory or country, that the said attestation 
 is in due form and by the proper officers. If the said certifi- 
 cate is given by the presiding justice of a court, it shall be 
 further authenticated by the clerk or prothonotary of said 
 court, who shall certify, under his hand and the seal of his 
 office, that the said presiding justice is duly commissioned and 
 qualified, or, if given by such governor, secretary of state, 
 chancellor or keeper of the great seal, it shall be under the 
 great seal of the state or territory or country aforesaid in 
 which it is made. And the said records and exemplifications 
 so authenticated shall have such faith and credit given to them 
 in every court and office within the United States as they have 
 by law or usage in the courts and offices of the state, territory 
 or country as aforesaid from which they are taken; but this 
 provision does not exclude any other method of proof allowed 
 by the state law, or admitted by the court where the same 
 may be offered in evidence.' 
 
 § 19. Foreign acts of state, judgments, etc.— Foreign 
 laws, acts of a state and judgments may be authenticated by 
 an exemplification of a copy under the great seal of the state, 
 or by a copy proved to be a true copy by a witness who has 
 examined and compared it with the original, or by a certificate 
 of an officer properly authorized by law to give the copy, which 
 certificate must itself also be authenticated.* 
 
 § 20. Foreign and interstate laws. — The law of one state 
 of the Union must be proved in the courts of another as a for- 
 eign law.' But a printed Volume purporting to contain the 
 law of a sister state is prima faoie evidence of the law of 
 such state.* The text of a foreign law is a fact provable by 
 
 1 E. S. U. S., § 906. 3 Hempstead v. Reed, 6 Conn. 480 ; 
 
 2 Ennis v. Smith, 14 How. (U. S.) Packard v. Hill, 2 Wend. 411 ; Van 
 
 400, 436; Church v. Hubbart, 3 Buskirk v. Mulbck, 3 Harr. (N. J.) 185 ; 
 
 Cranch, 187, 237 ; United States v. Grant v. Coal Co., 80 Pa. St. 308. 
 
 Wiggins, 14 Pet. 334, 346; United n Greenl. Ev., § 489, n. 3, p. 544; 
 
 States V. Rodman, 15 id. 130, 137; Thompson v. Musser, 1 Dall. 458,463; 
 
 Stein V. Bowman, 13 id. 309, 218 ; Mullen v. Morris, 2 Barr, 85 ; Merri- 
 
 Watson V. Walker, 23 N. H. 471, 496; field v. Robbins, 8 Gray, 150; State 
 
 Buttrickv. Allen, 8 Mass. 373; Spauld- v. Stade, 1 D. Chip. 303; Taylor v. 
 
 ing V. Vincent, 24 Vt. 501, 504 ; Dela- Bank of Illinois, 7 Mon. 576, 585; 
 
 field V. Hand, 3 Johns. 310, 313 ; Pack- Taylor v. Bank of Alexandria, 5 
 
 ard V. Hill, 7 Cowen, 434, 443. Leigh, 471 ; Clarke v. Bank of Mis- 
 
BEST AND SECONDAEY EVIDENCE. 239 
 
 exemplification of a copy under the great seal of the state, or 
 by a copy examined and compared by a witness, or by- a copy 
 duly certified by the proper officer thereto authorized, and 
 authenticated.^ State papers, so called, and the documents 
 therein contained, are provable by printed copy.^ Acts of 
 state require no proof. Courts will take judicial cognizance 
 of the form of government under which they are situated, — 
 its agents, its ofiBcial seals and transactions, and the ofiicial 
 seals of all foreign nations recognized by national authority.' 
 § 21. Secondary evidence — What is. — Secondary evidence 
 consists of examined copies, certified copies, exemplifications, 
 office copies, oral accounts of the contents of a document 
 given by some person who has himself seen it, counterparts 
 of documents as against the parties who did not execute 
 them, and all copies made from the original and proved to be 
 correct.* Secondary evidence must be legitimate evidence, in- 
 ferior to the primary solely in respect of its derivative charac- 
 ter. Thus, the copy of a copy of a destroyed or lost docu- 
 ment is not receivable in evidence, even though, as it seems, 
 the absence of the first copy has been satisfactorily .ex- 
 plained.' There are no degrees of secondary evidence." A 
 party entitled to resort to this mode of proof may use any 
 form of it ; his not adducing, or even wilfully withholding, some 
 other likeh'' to be more satisfactory is only matter of ob- 
 servation for the jury. Thus, the evidence of a witness that 
 he has read a destroyed or lost document is receivable, 
 
 sissippi, 5 Eng. 516 : Hale v. Ross, Pen- ' Womack v. Dearnian, 7 Port. 513 ; 
 
 nington, 591 ; Emery v. Berry, 8 Fost. Story, Confl, of Laws, § 643 ; Robin- 
 
 473 ; Inge v. Murphy, 10 Ala. 885 ; son v. Gilman, 7 ShepL 299 ; Colt v. 
 
 Martin v. Payne, 11 Tex. 292; Roth- Milliken, 1 Denio, 376. 
 
 rock V. Perkinson, 61 Ind. 39 ; White- * Stephen's Dig. of Law of Ev., art 
 
 house V. Bickford, 9 Fost. 471, 480; 70; 1 Whart Ev., § 740. 
 
 McLean v. McDonnell, 1 Q. B. (U. C.) SReev v. Long, Holt, 386; Anon., 
 
 13; 1 GreenLEv., §§-91, 508;lWhart. Skin. 174; Liebman v. Pooley, 1 
 
 Ev., § 94. Stark. 167 ; Everingham v. Roundel], 
 
 1 Church V. Hubbart, 2 Cranch. 187, 2 Moo. & R. 138 ; Gilb. Ev. 9 (4th ed.) ; 
 
 238 ; Lincoln v. Batteile, 6 Wend. 475 ; Winn v. Patterson, 9 Pet. 663. Contra, 
 
 Ennis v. Smith, 14 How. 400 ; The Goodrich v. Weston, 102 Mass. 362. 
 
 Pawashick, 2 Lowell, 142. «Doe d. Gilbert v. Ross, 7 M. & W. 
 
 2 Nixon v. Porter, 34 Miss. 697 
 Dutillet V. Blanchard, 14 La. Ann. 97 
 Bryan v. Forsyth, 19 How. (U. S.) 334 
 Gilman v. Riopelle, 18 Mich. 145. 
 
 102; Hall v. Ball, 3 Scott, N. R 577; 
 Brown v. Woodman, 6 Car. & P. 206.. 
 
240 EULES OF EVIDENCE. 
 
 although a copy or abstract of it is in existence, and perhaps 
 even in court. As soon as you have accounted for the 
 original document you may then give secondary evidence 
 of its contents. Parol evidence may then be tendered, if it 
 does not appear from the nature of such evidence that there 
 is any attested copjj^ or better species of secondary evidence 
 behind. We know nothing but of the deed which is accounted 
 for, and therefore the parol evidence is in itself unobjection- 
 able. Does it then become inadmissible if it be shown from 
 other sources that a more satisfactory species of secondary 
 evidence exists ? I think it does not ; and I have always under- 
 stood the rule to be, that when a party is entitled to give 
 secondary evidence at all, he may give any species of second- 
 ary evidence within his power. 
 
 § 22. Secondary evidence admissible when. — Parol proof 
 of the contents of w^ritten instruments may be given upon the 
 proof of their loss from whatever cause, whether by inevitable 
 accident or mere carelessness, or the voluntary act of the party, 
 provided proof is first made that diligent but unavailing search 
 has been made for them in the places where they would be 
 most likely to be found, and the evidence of loss and search is 
 such as to make it apparent that parol evidence is the best evi- 
 dence in the party's possession or in his power to produce.' 
 The contents of a paper voluntarily destroyed by a party may, 
 after proof of its destruction, be shown by parol,^ but he must 
 repel every inference of a fraudulent design in its destruction.' 
 There are many cases in which the contents of paper writings 
 may be shown by secondary evidence, among which are the 
 following : 
 
 First. Where the question arises on the examination of a 
 witness on the voir dire.^ 
 
 Second. Where the papers are voluminous, and it is only 
 necessary to prove their general results.^ 
 
 Third. Where there is a strong presumption of law in favor 
 of the existence of the fact which the writing could be used to 
 sustain, as the appointment of public oflBcers.* 
 
 1 Wolf V. Mathews, 39 Mo. App. 2 Adams v. Guice, 30 Miss. 397. 
 
 376 ; Ebersole v. Eankin, 102 Mo. 488 ; « Blake v. Fath, 44 111. 302. 
 
 Bounds V. Little, 79 Tex. 128 ; Con- < Rex v. Gesburn, 5 East, 57. 
 
 nell V. Wildes, 152 Mass. 172 ; Gillis » Meyer v. Lef ton, 2 Stavk. 374. 
 
 V. Wilmington, O. & E. 0. R Co., 108 e Berry man v. Wise, 4 T. R, 366. 
 X C. 441. 
 
BEST AND SECONDAEY EVIDENCE. 241 
 
 Fourth. Where it is in the hands of the opposite party, who, 
 upon proper notice, refuses or neglects to produce it.^ 
 
 Fifth. Where the original writing is beyond the jurisdiction 
 of the court, or is lost or destroyed.^ 
 
 Sixth. Where its production is physically im possible or highly 
 inconvenient. 
 
 If a stranger is served with a subpmna duces tecum to pro- 
 duce a paper in his possession and does not produce the docu- 
 ment, and has no lawful excuse or justification for refusing or 
 omitting to do so, his omission does not entitle the party to 
 give secondary evidence of the contents of the document.^ 
 
 Sir J. Stephen, in his Digest of the Law of Evidence,* X&yi 
 ' down the following rules for the admission of secondary 
 evidence, viz. : " Secondary evidence may be given of the 
 contents of a document in the following cases: When the 
 original is shown or appears to be in the possession or power 
 of the adverse party, and when, after notice, he does not 
 produce it;^ when the original is shown or appears to be 
 in the possession or power of a stranger not legally bound to 
 produce it, and who refuses to produce it after being served 
 with a subpoena duces tecum, or after having been sworn as a 
 witness and asked for the document and having admitted that 
 it is in court ;^ when the original has been destroyed or lost, 
 and proper search has been made for it,' the loss may be 
 proved by an admission of the party or his attorney;* when 
 the original is of such a nature as not to be easily movable,' 
 or is in the possession of a person living beyond the jurisdic- 
 tion of the court j^" when the document is required or author- 
 
 iPortier v. Barclay, 15 Ala. 439; Marston v. Downes, 1 A. & E. 31; 
 
 Weeks v. Lyon, 18 Barb. 530 ; Dean Brandt v. Klein, 17 Johns. 335 ; Rush 
 
 V. Border, 15 Tex. 298. v. Sowerwine, 3 H. & J. 97. 
 
 sPendeny v. Crescent Life Ins. Co., ' 1 Ph. Ev., § 453 ; 3 Ph. Ev., § 381 
 
 21 La. Ann. 410. T. E. (from Greenl.), g 299. 
 
 3 Bull V. Loveland, 10 Pick. 9; Rex sr. y. Haworth, 4 C. & P. 254 
 V. Llanfaethly, 2 E. & B. 940. Taylor v. Riggs, 1 P.b. 591, 596; Pat- 
 
 4 Art. 71. terson v. Winn, 5 id. 233, 240, 243 
 6 Rex V, Watson, 3 T. R. 201 ; Tur- Riggs v. Taylor, 9 Wheat. 581, 596. 
 
 ner v. Yates, 16 How. (U. S.) 14, 26 ; ^ Mortimer v. McCallan, 6 M. & W. 
 
 Hanson v. Eustace's Lessee, 3 How. 67, 68 ; Bruce v. Nicolopulo, 11 Ex, 
 
 <U. S.) 653, 708; Riggs v. Taylor, 9 183; N. Brookfieid v. Warren, 16 
 
 Wheat. 483, 486. Gray, 171, 174. 
 
 « Miles V. Eddy, 6 C. & P. 733; lOAlivon v. Furnival, 1 C, M. & K. 
 16 
 
242 RULES OF EVIDENCE. 
 
 ized b}' law to be registered, and a certified copy from the reg- 
 istry is made evidence by statute;' when the original is a 
 document for the proof of which special provision is made by 
 statute or any law in force for the time being; ^ when the orig- 
 inals consist of numerous documents which cannot conveniently 
 be examined in court, and the fact to be proved is the general 
 result of the whole collection, provided that that result is ca- 
 pable of being ascertained by calculation." ' Any secondary 
 evidence of a document is admissible if it is the best evidence 
 obtainable.* In some cases proof must be made by copies duly 
 authenticated as prescribed by statute. In other cases, evi- 
 dence may be given as to the general result of the documents 
 by any person who has examined them, and who is skilled in 
 the examination of such documents. Questions as to the ex- 
 istence of facts rendering secondary evidence of the contents 
 of documents admissible are to be decided by the judge,' un- 
 less, in deciding such a question, the judge would, in effect, 
 decide the matter in issue. 
 
 § 23. Proof of account. — -It seems that schedules mad« from 
 the original papers and documents previously proved in the 
 case, showing certain data and results obtained therefrom, and 
 verified by the witness by whom they are prepared, may be 
 admitted. But it seems that questions of this sort must nec- 
 essarily be left very much to the discretion of the judge who 
 presides at the trial. It should only be allowed where books 
 and documents are multifarious and voluminous, and of a char- 
 acter to render it difficult for the jury to comprehend material 
 facts without the aid of such statements, and even in such cases 
 they should not be admitted unless verified by persons who 
 have prepared them from the originals in proof, and who tes- 
 
 277, 291-93; Burton v. Driggs, 30 83,104; Burton v. Driggs, 20 Wall. 
 
 Wall. 125, 134; Sheppard v. Giddings, 125, 136. 
 
 23 Conn. 282; BowmaQ v. Sanborn, 5 * Munn v. Godbold, 3 Bing. 297; 
 
 Fost 87, 113. R V. Castleton, 7 T. R 236 ; Butler v. 
 
 1 Patterson V. Winn, 5 Pet. 283, 341 ; Maples, 9 Wall. 766, 778; Page v. 
 Smith V. United States, id. 392, 299. Page, 16 Piok. 368 ; 1 Whart Ev., 
 
 2 Barney v. Schneider. 9 Wall. 348; § 141. But see Cornett v. 'Williams, 
 Eayraond v. Longworth, 4 McLean, 20 Wall. 226, 246. 
 
 481,483. sstowe v. Querner, L. R. 5 Exoli. 
 
 3 Roberts v. Doxen, Peake, 116; 155; Taylor v. Riggs, 1 Pet. 591, 597; 
 Meyer v. Sef ton, 3 Stark. 376 ; Bos- Minor v. Tillotson, 7 id. 99. 
 
 ton & W. R. R. Corp. v. Dana, 1 Gray, 
 
BEST AND SECONDAET EVIDENCE. 243 
 
 tify to their accuracy, and after ample time has been given to 
 the adverse party to examine them and test their correctness.' 
 Thus, in Lewis v. Pahner ^ it was said in an action for conver- 
 sion, in which the validity and effect, as against defendants, of 
 a chattel mortgage made by W. & W. H. Lewis to plaintiff 
 was in question, that it was not error to allow one of that firm, 
 examined as a witness, to be asked, "What was the state of 
 the accounts between the plaintiff and your firm at the time 
 of the giving of the mortgage?" and to answer, "He was 
 indebted to us about $160; I ascertain this from our books," 
 although this was objected to on the ground that it was in- 
 competent without the production of the books. So in Burton 
 V. Driggs' the court say: "When it is necessary to prove the 
 results of voluminous facts, or the examination of many books 
 and papers, and the examination cannot be conveniently made 
 in court, the results may be proved by the person who made 
 the examination." But it seems that the court have a discre- 
 tionary power to refuse to receive such evidence, and may re- 
 quire the books to be produced unless the party offering such 
 evidence makes satisfactory proof of their absence beyond the 
 jurisdiction of the court, or of their loss or destruction, so as 
 to let in secondary evidence of their contents.* 
 
 The books of account of a party are admissible in evidence 
 in his own favor upon preliminary proof : (1) That the party 
 had no clerk or book-keeper, except, as in McGoldrick v. Trap- 
 hagen,' where the book-keeper had nothing to do with the 
 transactions, but only with transferring entries and posting 
 books; (2) that the books are his books of account kept in 
 the regular course of business ; (3) that some article or service 
 charged was actually furnished , (4) that there was a course 
 of dealing between the parties ; (5) that he kept fair and hon- 
 est accounts. 
 
 It seems that it is not necessary that it be shown that there 
 was any formal book-keeping. It is sufficient that there is 
 proof that it is the personal record of the party kept accord- 
 ing to his usage and degree of intelligence. It is said, how- 
 ever, that if it appears that the book is a part of a system of 
 
 1 Boston & W. Ey. Co. v. Dana, 1 3 20 Wall. 135. 
 
 Gray, 104 * Van Sachs v. Kretz, 73 N. Y. 548. 
 
 2 28N. Y. 378. 5 88N. Y. 334. 
 
244 EULES OF EVIDENCE. 
 
 books involving others which may be necessary to a complete 
 understanding of the state of accounts, the others must be 
 produced if called for. It is also said that it must appear that 
 the charge was made for the purpose of charging for specific 
 things the person upon whose credit the transaction was had, 
 and not a mere memoranda. Proof of a single sale, though 
 of numerous articles, is not enough, but there must have been 
 a course of dealings. There must be proof that during the 
 time alleged some article or service charged was furnished. 
 The party producing the books must verify them. The tes- 
 timony of one witness is enough to show that the party kept 
 fair and honest books, but he should be a customer, or a party 
 who has dealt with the party and settled with him by his ac- 
 count. If the account is then submitted to the court for inspec- 
 tion, and he is satisfied, it is admissible. All the above ques- 
 tions are preliminary for the court. The account when in 
 evidence is competent to show the fact of sale, of the dates 
 of delivery, and of the price or valuc.^ It has been held that, 
 as against the executors or administrators of a deceased per- 
 son, the books of account of one who claims against a deceased 
 person cannot be proved by the oath of the claimant.' 
 
 § 24. When writing need not Ibe produced or accounted 
 for. — Oral evidence of the contents of a writing, if collateral 
 to the issue involved, is competent without reference to the 
 existence of the instrument itself;^ and where the writing is 
 collateral to the question in issue it need not be produced. 
 Thus, where the action is to recover the amount of a deposit 
 in a bank, a party can testify as to tlie amount of a draft 
 deposited without producing the draft or laying a foundation 
 for parol evidence.* The same rule prevails when the action 
 is not directly upon the agreement, for non-performance of it; 
 or where the action is for the plaintiff's share of money had 
 and received by the defendant under a written security for a 
 debt due to them both. So where a written instrument has 
 accomplished its purpose, and has been given up to the maker, 
 
 1 McGoldriok v. Traphagen, 88 N. Y. 11 Hun, 226 ; St. Louis, A. & T. H. R. 
 334. Co. Y. Bauer, 156 111. 106; Com. v, 
 
 2 McGoldrick V. Traphagen, 88 N. y. Walker, 163 Mass. 226; Dunbar v. 
 334. United States, 156 U. S. 185 ; Western 
 
 3 Rogers v. Crook, 97 Ala. 722. U. Tel. Co. v. Bates, 93 Ga. 352 ; Fisher 
 * Bowen v. Nat. Bank of Newport, v. George S. James Co., 93 Ga, 717, 
 
BEST AND SECONDARY EVIDENCE. 245 
 
 the presumption is that it has been destroyed, as there was no 
 longer any necessity or reason for preserving it. In such 
 cases the law permits secondary evidence of the contents of 
 written instruments.^ So parol evidence of the posting of 
 notices of sale is admissible. The rule requiring the produc- 
 tion of the writing itself as the best evidence does not extend 
 ■to mere notices.^ Secondary evidence is also admissible where 
 the original is not practically removable, as in the case of writ- 
 ings or placards upon walls or boardings, and inscriptions on 
 monuments and tombstones ; ' also where the original is in the 
 custody of a person out of the jurisdiction, who is not per- 
 mitted bj' the law or usage of the place where he is to allow 
 its removal. It has been questioned whether a private docu- 
 ment in the lawful private custody of a person out of the ju- 
 risdiction may be proved in like manner.* If it may, it is 
 necessary to prove first that a formal demand has been made 
 for the production of the document with a statement of the pur- 
 pose for which the demand is made.' Plaintiff may testify to 
 his ownership of real estate' or stock.'' No notice to produce 
 an instrument is necessary when, from the nature of the action, 
 the party must know that he will be charged with the posses- 
 sion of it.^ Thus, in an action for trover for the conversion of 
 a note or other writing,^ or in a prosecution for stealing a docu- 
 ment, and in an action for not delivering a telegram or written 
 instrument, no notice to produce is necessary.'" A notice need 
 not be given to the opposite party to produce a paper of which 
 he has fraud iilently or forcibly obtained possession; nor where 
 the party or his attorney has admitted the loss of the paper.'^ 
 § 25. Sufficiency of search, etc. — The burden of showing 
 the loss of a written instrument is upon the party seeking to 
 introduce secondary evidence. He must establish its loss by 
 
 1 Chrysler v. Renois, 43 N. Y. 212. e Chicago, St. P., M. & O. R. Co. v. 
 
 2 McMillan v. Baxley, 1 12 N. C. 578 ; Gilbert, 52 Fed. Rep. 711. 
 Lavretta v. Halcotnbe, 18 Ala. 503. 'Wolfe v. Underwood, 98 Ala. 375. 
 
 3 Mortimer v. McCallon, 6 M. & W. 8 Reliance Lumber Co. v. Western 
 58, 68; Bruce V. Nicolopulo, 11 Ex. Union Tel. Co., 58 Tex. 394, 44 Am. 
 129, 133 ; Bartholomew v. Stephens, 8 Rep. 622 ; Forward v. Harris, 30 Barb. 
 C. & P. 738 ; Jones v. Tarleton, 9 M. 338 ; State v. Mayberry, 48 Me. 218. 
 & W. 675. 8 Hays v. Riddle, 1 Sandf. 248. 
 
 * Boyle V. Wiseman, 10 Ex. 647. " Dana v. Conant, 80 Vt 246. 
 
 » Id. ; Crispin v. Doglioni, 33 L. J. " How v. Hall, 14 East, 276. 
 (M. & A.) 109. 
 
24i(} EULES OF ETIDENCE. 
 
 proof that he has made diligent but unavailing search for the 
 paper in places where it would be most likely to be found, and 
 the degree of diligence necessary to be shown must depend 
 upon the value and importance of the lost document.^ But it 
 is suflScient if he has in good faith exhausted in a reasonable 
 degree all the sources of information and means of discoverj' 
 which the nature of the case would naturally suggest.^ If the 
 instrument was executed in duplicate, due diligence must be 
 shown to ascertain whether any counterpart exists, and if so, 
 to obtain it to be used upon the trial.' "Where it may be in 
 either of two or more places, all the places should be searched ; 
 and if it be in the custody of either of two or more persons, 
 inquiry should be made of all of them.* The search should 
 have been as recent as possible.^ The proof of loss of the 
 paper is addressed to the trial judge and presents a ques- 
 tion to be determined by him as matter of fact. It^seems to 
 be a general rule that the person last known to have been in 
 possession of the paper must be examined as a witness to 
 prove its loss, and that even if he is out of the state his depo- 
 sition must be procured, if practicable, or some good excuse 
 given for not doing so.* If the only witness to the circum- 
 stances relied upon as excusing the non-production of the evi- 
 dence is the party himself, testifying in his own behalf, the 
 judge is not bound, as matter of law, to credit the statement.' 
 § 26. Notice to produce — Document necessary when.— 
 To render admissible secondary evidence of a writing which 
 goes to make up direct proof of the issues, it must be shown 
 that every legitimate effort to produce the original has been 
 exhausted.* The party offering it must show the loss or de- 
 struction of the original, and, if it appears to be in the hands 
 of the adverse party, that he has given notice to produce the 
 original.' It is no ground for excluding a party's testimony 
 
 iPiei-ce v. Wallace, 18 Cal. 165; 6 Porter v. Wilson, 13 Pa. St 641. 
 Prettyman v. Wallace, 34 111. 175; 6 simpgon v. Ball, 3 Wall. 460. 
 Vorhees v. Dorn, 51 Barb. 580 ; Poe ' Kearney v. Mayor, etc., 92 N. Y. 
 
 V. Darrah, 20 Ala. 283; Simpson v. 617. 
 Norton, 45 Me. 281. 8 Brooks v. McMeekin, 37 S. C. 285. 
 
 2Holbroke v. School Trustees, 28 9 Roberts v. Dixon, 50 Kan. 436; 
 
 111. 187 ; Sellers v. Carpenters, 33 Me. Scanlon v. Hodges, 52 Fed. Rep. 354; 
 
 485 ; Kidder v. Blaisdall, 45 id. 461. Kleiman v. Geiselmann, 45 Mo. App. 
 
 3 Poignard v. Smith, 8 Pick. 272. 497 ; Gonzalis v. State, 31 Tex. Cr. 
 
 < Taylor on Ev. 307. Rep. 508.- 
 
BEST AND SECONDAEY ETIDENOE. 247 
 
 as to the contents of a writing that it has been negligently- 
 destroyed by the party who offers its contents in evidence.' 
 The burden is upon the party seeking to make use of second- 
 ary evidence to establish either that the paper is beyond the 
 jurisdiction of the court or that it is lost or destroyed,^ even 
 though a copy is set out in the pleading.' And as a general 
 rule, secondary evidence of the contents of a document may 
 not be given unless the 'party purposing to give such second- 
 ary evidence has, if the original is in the possession or under 
 the control of the adverse party, given him such notice to pro- 
 duce it as the court regards reasonably sufficient to enable 
 it to be produced;* or has, if the original is in the possession 
 of a stranger to the action, served him with a subpcena duces 
 tecum requiring its production.^ If a stranger so served does 
 not produce the document, and has no lawful justification for 
 refusing or omitting to do so, his omission does not entitle 
 the party who served him with the subpoena to give secondary 
 evidence of the contents of the document.* Such notice is not 
 required in order to render secondary evidence admissible in 
 any of the following cases : 
 
 (1) When the document to be proved is itself a notice.' 
 
 (2) "When the action is founded upon the assumption that the 
 document is in the possession or power of the adverse party 
 and requires its production.^ 
 
 (3) When it appears or is proved that the adverse party has 
 obtained possession of the original from a person subpoenaed 
 to produce it.' 
 
 iRodgers v. Crook. 97 Ala. 723. v. Yates, 16 How. (U. S.) 14; Dwyer 
 
 2 Foster v. State, 88 Ala. 183; Sun- v. Collins, 7 Ex. 648. 
 
 day V. Thomas, 26 Ga. 237; Shorter ^1 Whart Ev., § 150; Brandt v, 
 
 V. Cunningham, 87 Cal. 309 ; Heller v. Clein, 17 Johns. 335 ; Newton v. 
 
 Peters, 140 Pa. St. 648 ; Rea v. Jaffray, Chaplin, 10 C. B. 56. 
 
 83 Iowa, 231 ; Martin t. Cooper, 87 « Bull v. Loveland, 10 Pick. 9, 14 ; 
 
 Cal. 97. R. V. Llanfaethly, 2 E. & B. 946. 
 
 3 Coffing V. Carnahan, 127 Ind. 427 ; ' Eagle Bank v. Chapin, 3 Pick. 180, 
 Kuhra v. Schwartz, 33 Mo. App. 610; 182; Marrow v. Com., 48 Pa. St. 305, 
 Mugge V. Adams, 76 Tex. 448 ; State 308. 
 
 V. Thomson, 79 Iowa, 703 ; Canal & I. 8 How v. Hall, 14 East, 247 ; Hays 
 Co. V. Dunbar, 80 Cal. 530. v. Riddle, 1 Sandf. 248, 251 ; Dana v. 
 
 < Porter v. Hale, 23 Can. S, C. 265 ; Conant, 30 Vt. 246, 257 ; McLean v. 
 Com. V. Emery, 3 Gray, 80 ; Turner Hertzog, 6 S. & R. 154. 
 
 9 Leeds v. Cook, 4 Esp. 356. 
 
24:8 EULES OF EVIDENCE. 
 
 (4) When the adverse party or his agent has the original in 
 court ' or admits that it does not exist.^ 
 
 Non-residence of the person to whom a letter was addressed is 
 insufBcient to render parol evidence of its contents admissible 
 in the absence of any effort to procure the letter.^ But a let- 
 ter-press copy is admissible in evidence where the original let- 
 ter is shown to be beyond the court's jurisdiction.* The term 
 " opposite parties " does not ordinaril}^ include co-defendants, 
 but only parties between whom there is some question to be 
 determined.' Secondary evidence will not be admissible under 
 this head unless the party serving the notice can prove that 
 at the time of the service of the notice the original was in the 
 possession or power of his opponent.^ But the original need 
 not be shown to be in the actual possession of the party if it 
 is in the custody of any other person who holds it for him 
 and on his behalf without any adverse or independent claim.^ 
 Thus, a notice to produce has been held to bind the opposite 
 party to produce the following documents, namely: Checks in 
 the possession of his bankers,' an order delivered by him to 
 the captain of his vessel for delivery to a third person of goods 
 on board of her,' and, in an action of trover against a sheriff 
 for illegal levy of the plaintiff's goods, the warrant of execu- 
 tion which had been returned to the hands of the under-sheriff.'* 
 "Where a party tenders secondary evidence of a document 
 which his opponent has refused to produce upon his giving 
 
 1 Dwyer v. Collins, 1 Ex. 639 ; Mc- * Smith v. Traders' Nat Bank, 83 
 Pherson v. Rathbone, 7 Wend. 216, Tex. 368; Sulphur Springs F. Nat. 
 219; Williams v. Hayes, 73 N. Y, Bank v. Willis, 83 Tex. 168; Spears 
 State Rep. 383, 143 N. Y. 442 ; Rhoads v. Lawrence, 10 Wash. 368 ; Burr v. 
 V. Selin, 4 Wash. (D. C.) 715, 718 ; Kose, 168 Pa. St. 81. 
 
 Potter V. Adams, 125 Mo. 118; Penti- 5 Shaw v. Smith, 18 Q. B. D. 193; 
 cost V. State, 107 Ala. 81. Eden v. Weardale Iron & Coal Co., 
 
 2 Sperry v. Wesoo, 26 Oreg. 483 ; 35 Ch. D. 387. 
 
 Wilburn v. State, 60 Ark. 141 ; Rull- e Harvey v. Mitchell, 2 M. & R 366. 
 
 man v. Barr, 54 Kan. 643; Alvord v. 7 Evans v. Sveeet, Ry. & M. 83; 
 
 Spring V. G. Co., 106 Cal. 547; Dun- Parry v. Morrit, 1 M. & R 379; 
 
 bar V. United States, 156 U. S. 185; Irwin v. Lever, 2 F. & F. 297; Peile 
 
 Tibbals v. Affland, 10 Wash. 451 ; on Discovery (1883), p. 133. 
 
 Western U. T. Co. v. Bates, 93 Ga. s Partridge v. Coates, Ry. & M. 153, 
 
 352 ; Lenferty v. Coe, 34 Fla. 363. 156 ; Burton v. Payne, 3 C. & P. 530. 
 
 3 Kischner v. Loughlin (N. M.), 28 ^ Baldney v. Ritchie, 1 St 338. 
 Pac. Rep. 505 ; American Surety Co. i" Taplin v. Atty, 3 Bing. 164 
 V. Paisly, 72 Fed. Rep. 470. 
 
BEST AND SECONDARY EVIDENCE. 249' 
 
 some evidence of the execution of the original, a presumption 
 arises that it was duly attested if attestation was required;'' 
 and it lies on his opponent, if he contends the contrary, to 
 make out his objection. Similarly, in the case of a document 
 lost or destroyed, after some reasonable evidence of the exe- 
 cution and of the loss or destruction of the original, it will be 
 presumed in favor of the party tendering the secondary evi- 
 dence, until the contrary is shown, that the document was duly 
 attested.^ 
 
 § 27. Notice to produce — Sufficiency of, — Where any paper 
 is in the possession or under the control of the adverse party, 
 a reasonable notice must be served upon him or his attorney 
 to produce it, and secondary evidence of its contents cannot be 
 given unless such party neglects or refuses to produce it after 
 such notice.^ The sufBciency of the notice both as to matter 
 and time rests in the discretion of the court in view of all the 
 circumstances. One notice given in the same case is enough 
 although the action is tried several times.'' The notice must 
 specify the paper desired with certainty. But a notice to pro- 
 duce all letters written by defendant to plaintiff relating to the 
 matters in dispute between certain dates is sufficient.^ Accord- 
 ing to some authorities the object of a notice to produce is not 
 merely to enable the party served to have the document in 
 court, but also that he may be enabled to prepare evidence to- 
 explain, nullify or confirm it.* In the case of Dwyer v. Col- 
 lins ' it was held that the sole object of such a notice was to 
 enable the party to have the document in court to produce it 
 if he likes ; and if he does not, then to enable the opponent to 
 give secondary evidence. And it was accordingly held in that 
 case that where a party to a suit or his attorney has a docu- 
 ment with him in court, he may be called on to produce it with- 
 out previous notice; and in the event of his refusing, the 
 opposite party may give secondary evidence. 
 
 1 Cooke V. Tanswell, 8 Taunt. 450 ; ^ Waldron v. Donison, 11 Wend. 65 ;, 
 Poole V. Warren, 8 A. & E. 582; Gardner v. Wright, 15 L. T. (N. S.> 
 Crisp V. Anderson, 1 St. 35. 325. 
 
 2 E. V. St. Giles, 1 E. & B. 648. <> 1 Stark. Ev. 404 (8d ed.) ; Cook v. 
 
 3 Cooper V. Granberry, 33 Miss. 117 ; Hearn, 1 Moo. & R. 201 : Exall v. Part- 
 Bright V. Young, 15 Ala. 113. ridge, in Doe d. Wartney v. Grey, 1 
 
 * Jackson v. Shearman, 6 Johns. 19 ; Stark. 288. 
 Curamings v. McKinney, 5 111. 57; 7 7 Exch. 689, 16 Jur. 569. 
 Hope V. Beaden, 17 Q. B. 209. 
 
250 EDLBS OF EVIDENCE. 
 
 § 28. Effect of notice. — In order to render a notice opera- 
 tive to let in secondary evidence, it must be shown that the 
 original instrument is in the hands of the opposite party. If 
 the party refuses to produce the paper he cannot afterwards 
 use the original either to contradict the secondary evidence,' 
 or to refresh the memory of witnesses, or, it seems, for any 
 purpose, but is in effect bound by any legal and satisfactory 
 evidence given on the other side relating thereto. But in all 
 cases the party offering secondary evidence must prove the 
 original in like manner as if he himself had produced it. If, 
 however, the person producing it is a party to the instrument 
 or claims a beneficial interest under it, it is prima facie to be 
 taken to be duly executed, and may be read without proof of 
 its execution.^ Notice to produce a document, and inspection 
 thereof when produced by the other party, are not enough to 
 make it evidence.' It was formerly held to be the general 
 rule in some states and in England that when a book or docu- 
 ment is produced on notice, and the party giving the notice 
 inspects-it, it becomes evidence in the case and may be used 
 as such if material.* But whatever may have been the ancient 
 rule in England upon the subject, we do not understand the 
 rule to be general at the present time. The courts of Mas- 
 sachusetts, Maine and Delaware seem to have followed the 
 supposed English rule on the subject.' The party calling for 
 books and papers would be subjected to great hazard if an 
 inspection merely, without more, would make them evidence 
 in the case. That rule tends rather to the suppression than 
 to the ascertainment of truth, and the opposite rule is, as it 
 «eems to us, better calculated to promote the ends of justice. 
 The production of books and papers on notice is the volun- 
 tary act of the party. If he refuses, it may authorize the 
 other party to give secondary evidence of their contents, which 
 the party having possession cannot then answer by producing 
 them.^ The effect of a refusal to produce papers is that parol 
 
 1 Thompson v. Hodgdon, 13 Ad. & Wash. C. C. 482 ; Penaker & C. Con. 
 
 E. 135. V. Lamson, 4 Shep. 234. 
 
 2Betts V. Badger, 12 Johns. 233; 5 ciark v. Fletcher, 1 Allen, 53. 
 
 Jackson v. Kingsley, 17 id. 157. '■Carradine v. Hotchkiss, 120 N. Y. 
 
 3Smith V. Rentz, 131 N. Y. 169. 608, 31 N. Y. State Rep. 951; Smith 
 
 *Long V. Drew, 114 Mass. 77 ; Blake v. Rentz, 131 N. Y. 169, 43 N. Y. State 
 
 T. Russ, 33 Me. 360 ; Calvert v. Flower, Rep. 879. 
 7 C. & P. 386 ; Jordan v. Wilkins, 3 
 
BEST AND SECONDAET KVIDENCB. 251 
 
 evidence of their contents may be given; and if such secondary 
 evidence is imperfect, vague and uncertain as to dates, suras, 
 etc., every intendment and presumption shall be against the 
 party who might remove all doubt by producing the highest 
 evidence.^ When an objection is made to secondary evidence 
 of the contents of a vpriting, the objector must not only prove 
 the existence of better evidence but also that it was known to 
 the other party in time to have produced it on the trial.^' 
 
 § 29. Lawful non-production by a third person. — Second- 
 ary evidence is admissible whenever the original is in the pos- 
 session of a stranger to the proceeding who attends in court 
 with the document and there lawfully refuses to produce it on 
 some other ground of privilege claimed by him either in his 
 own right or as agent acting on the instructions of another. 
 The usual and proper course of the party who seeks to give 
 evidence of the document is to compel the attendance in court 
 of the person who has possession of the document by means of 
 a subpmna duces tecum; but if he should voluntarily attend 
 with the document and should lawfully refuse to produce it, 
 secondary evidence will be equally admissible.^ If, on the other 
 hand, he attends, but without the document, and a subpoena 
 duces tecum has not been served on him or not been duly served, 
 this is a fatal objection to the admission of secondary evidence, 
 as the party has not done all that lay in his power to procure 
 the production of the original.* If the person so refusing is 
 merely agent for another by whose instructions the production 
 is withheld, the fact that the principal does so refuse may be 
 proved in several ways. He may himself attend the court 
 upon a subpoena and then and there refuse,^ or may attend vol- 
 untarily and do the same;' but it will be sufficient for the ad- 
 mission of secondary evidence if the agent himself can prove 
 that he has had instructions from his principal not to allow 
 the production of the document.'' The principal may waive 
 his privilege,' after which the agent's refusal to produce would 
 no longer be lawful, unless based on some independent and just 
 
 1 Jewell V. Center, 25 Ala. 498 ; Mer- ■> Hibbard v. Knight, 3 Ex. 11. 
 win V. Ward, 15 Conn. 377. 5 Newton v. Chaplin, 10 C. B. 356. 
 
 2 Minneapolis Times Co. v. Nimocks, ^ Doe v. Clifford, 2 C. & K. 448. 
 53 Minn. 381. ' Phelps v. Prew, 8 E. & B. 430. 
 
 3 Doe V. Clifford, 3 C. & K. 448; « Merle v. Moore, Ey. & M 390. 
 Dwyer y. Collins, 7 Ex. 639. 
 
252 EULES OF EVIDENCE. 
 
 claim of privilege in himself.* Neither principal nor agent thus 
 claiming privilege is compellable to give oral or other secondary 
 evidence of the contents of the privileged document; but if 
 such evidence is voluntarily given, it is admissible, even though 
 it is given by an agent without the authority of the principal.^ 
 An^' other person who by oral or other secondary evidence 
 can prove the contents of the privileged document may be 
 called to do so;' and to enable him to identify it for this pur- 
 pose the person withholding production of it may be compelled 
 to produce it for the purpose of identification, provided always, 
 that no part of the contents is disclosed. "When the produc- 
 tion is unlawfully refused, no secondary evidence is admissible; 
 the only remedies of the party whom such refusal affects are 
 an application to postpone the trial,* and proceedings upon the 
 writ of subpoena. 
 
 §30. Secondary evidence — How proved. — As a general 
 rule there are no degrees in secondary evidence.' Satisfac- 
 tory evidence of the contents of the writing must be pro- 
 duced. Where a copy is offered its accuracy must be shown; 
 but a copy of a letter taken by a copying machine, although 
 still only a cop\', will be presumed to be correct.^ An ofBce 
 copy, i. e., one made by the officer having the custody of the 
 document, in the same court and in the like cause is equiva- 
 lent to the original document of which it is a copy. A writ- 
 ten proposition accepted with parol modification is the best 
 evidence of so much of the resulting contract as the writing 
 contains.' A book purporting to contain all the ordinances of 
 a city or town, and shown to be in the custody of the corpora- 
 tion, is evidence of itself.' Where permitting comparison of a 
 disputed handwriting with any writing proved to the satisfac- 
 tion of the court to be genuine is allowed, it is proper to 
 admit for comparison signatures proved b}'^ persons who had 
 on other occasions seen the writing of the person whose sig- 
 nature the one in controversy purported to be.^ A deed over 
 
 1 Doe V. Ross, 7 M. & W. 109. 6 Hagedorn v. Reed, 3 Camp. 377. 
 
 2 Marston v. Downes, 6 C. & P. 381 ; ' Ohio S. R Co. v. Morey, 47 Ohio 
 Hibbard v. Knight, 3 Ex. 11. St. 23. 
 
 3 Mills V, Oddy, 6 C. & P. 728, 7,32. 8 Boone v. Alexander City, 89 Ala. 
 i Archbold's Cr. PI. (20th ed.) 1886, 602 ; Abbott v. Stanley, 77 Tex. 309. 
 
 p. 104. 9 McKay v. Lasher, 121 N. Y. 477, 
 
 5 Carpenter v. Dame, 10 Ind. 125. 81 N. Y. State Rep. 690. 
 
BEST AND SEOONDAEY EVIDENCE. 253 
 
 thirty years old, coming from proper custody, under which 
 title has been asserted, may be admitted in evidence without 
 further proof ;^ and this is the rule although it may not have 
 been properly authenticated for record.^ 
 
 §31. Sufficiency of secondary evidence. — Not only must 
 the party offering secondary evidence of a paper prove that 
 such paper once existed and that its contents were such as to 
 sustain the material allegations in support of which it is 
 offered,' but also its due execution,* genuineness,^ and its loss 
 or destruction without culpability on his part;* and he must 
 also repel every inference of fraudulent intent in its destruc- 
 tion.'' He must prove its destruction positively, or that it has 
 been thrown aside as useless;^ or that its destruction was the 
 result of an accident, or was without the consent of the party 
 who seeks to show its contents. When it appears that the 
 best evidence has been voluntarily and intentionally destroyed, 
 all inferior evidence of its contents will be rejected. But if 
 the destruction was made upon an erroneous impression of its 
 effect, secondary evidence will be allowed.' There are no de- 
 grees of secondary evidence so as to require a party authorized 
 to resort to it to choose one class of such evidence rather than 
 another.'" A certified copy of records, books or papers in 
 offices are evidence equally with the original thereof.'^ The 
 original of a deed duly recorded need not be produced.'^ If 
 ah original conveyance is a record of another state and can- 
 not be produced, a copy shown to be a true copy of the record 
 is'admissible.^' An order used twelve years before the trial 
 
 1 0'Donnell v. Johns, 76 Tex. 362. Pa. St. 301 ; Boue v. State, 86 Ga. 108 ; 
 
 2 Frost V. Wolf, 77 Tex. 455; Hill Yost v. Mensch, 141 Pa. St. 73. 
 
 ■V. Taylor, id. 395; Sanger v. Merritt, 6 Adams v. Guice, 30 Miss. 397. 
 
 120 N. Y. 109, 30 N. Y. State Rep. 'Blake v. Frost, 44 111. 103; Smith 
 
 870 ; Cable v. Cable, 146 Pa. St. 451 ; v. Holyoke, 112 Mass. 517 ; Randolph 
 
 James v. Sammis, 133 N. Y. 339, 43 v. Lane, 57 Ind. 115. 
 
 N. Y. State Rep. 910 ; Grain v. Hunt- 8 Bagley v. Mickle, 9 Cal. 430. 
 
 ington, 81 Tex. 614; Caltrane v. 9 Stoddard v. Mix, 14 Conn. 12; 
 
 Lamb, 109 N. C. 209; McKay v. Arm- Rhode v. McLean, 101 111. 467. 
 
 strong, 84 Tex. 157 ; Ballard v. Car- w Com. v. Smith, 153 Mass. 97. 
 
 michael, 83 id. 355; McClaskey v. H Culver v. Uthe, 133 U. S. 655; 
 
 Barr, 47 Fed. Rep. 154. Robertson v. Du Bose, 76 Tex. 1. 
 
 aGillis V. Wilmington, O. & E. C. li* Keller v. Ashford, 133 U. S. 610; 
 
 R. Co., 108 N. C. 441. Lasatere v. Van Hook, 77 Tex. 650 ; 
 
 < Atwell V. Lynch, 38 Mo. 519; Tay- Texas M. Pres. Co. v. Locke, 74 id. 
 
 Jor on Ev., S 316. 370. 
 
 » HuckensteJn t. Kelley & J. Co., 139 " Frost v. Wolf, 77 Tex. 455. 
 
254 EULES OF EVIDENCE. 
 
 will be presumed to be lost.^ The contents of a letter writ- 
 ten to a person residing in another state may be proven by- 
 secondary evidence without proving its loss or destruction.^ 
 Where a dying declaration is made and reduced to writing 
 and sworn to by the declarant, but the accused procures the 
 rejection of the writing, he cannot object to oral' testimony 
 detailing what deceased then said, provided it is shown that 
 the statement was made under the conditions necessary to 
 render a statement admissible as a dying declaration.^ A 
 copy of a message sent by telegraph is not competent evi- 
 dence unless the original dispatch, left at the transmitting 
 office, is shown to have been destroyed or lost, or that the 
 original, and the office from- which it was sent, are beyond 
 the jurisdiction of the court. This may be understood, how- 
 ever, as applying only to cases where the telegram is relied 
 upon to sustain the action or to establish a substantial fact.* 
 The message must be shown to have been sent by the party 
 from whom it purports to have come, either by proof that it 
 was in bis handwriting or that it was sent by his direction or 
 authority.' But a telegram answering questions asked the 
 sender by a previous telegram addressed to him is sufficient 
 evidence of his receipt of such previous telegram for the 
 purpose of its admission in evidence against him." There 
 are instances in which the message received must be deemed 
 the original; and in all cases where the company can be con- 
 sidered the agent of the sender, the message as received, in all 
 questions between the sender and the person receiving it, is 
 treated as the original.'' 
 
 § 32. Memoranda. — The memorandum of a witness becomes 
 evidence only when he verifies it as having been true when 
 made, has since forgotten the transaction, and is not able to 
 recall it after examining the memorandum so as to state it 
 from memory.^ The stubs of a check-book are competent as 
 
 1 Daniels v. Smith, 130 N. Y. 696, 6 United States v. Babcock, 3 Dill. 
 28 N. Y. State Rep. 351. (U. S.) 576; Whilden v. Merchants' 
 
 2 Manning v. Maroney, 87 Ala. 563, Bank, 64 Ala. 1. 
 
 13 Am. St. Rep. 67. estate v. Sawtelle, 66 N. H. 488. 
 
 3Hines v. Com., 11 Ky. L. Rep. 865. 7 Wearer v. Wood, 36 N. Y. 307. 
 
 ♦Smith V. Easton, 54 Md. 188, 39 spiukham v. Ben to, 67 N. H. 687; 
 
 Am. Rep. 355. Coffey v. Lyons, 33 N. Y. State Eep. 
 
BEST AND SKCONDAET BYIDBNOE. 255 
 
 tending to show payment of a debt.' Mortuary tables are evi- 
 dence to show the expectancy of life.^ Standard mortality 
 tables are admissible in evidence to show the probable duration 
 of life of a healthy person, and are to be weighed with other 
 evidence, such as his physical condition, general health, voca- 
 tion, habits, and the like, in an action for personal injuries.* 
 Ballots and ballot-boxes are competent evidence.* 
 
 §33. Oral proof of the contents of a deposition. — Wher© 
 a person is examined before a court or officer, and his deposi- 
 tion is reduced to Avriting and signed by the affiant, such depo- 
 sition is the best evidence of the witness' statement; and no 
 statement made by him and not contained therein is part 
 thereof. If such witness is examined, and his examination re- 
 duced to writing and not subscribed by him, undoubtedly any 
 person who heard his examination could testify to any state- 
 ments made by him, and such written examination would not 
 be the primary evidence. So any person who hears a witness 
 testify upon a trial, although the evidence is taken down by a 
 stenographer, may undoubtedly testify to statements made by 
 the witness. But when the examination is reduced to writing: 
 and read over to and subscribed by the witness for the purpose 
 of making an accurate and reliable record of the evidence given 
 by him, then the examination thus subscribed is the primar}'- 
 evidence, and it would violate the fundamental rules of evi- 
 dence to permit witnesses to be called and give from their 
 memory evidence of statements thus made.^ A referee having 
 in his- possession an examination made by him of a judgment 
 debtor in supplementary proceedings which was reduced to 
 writing and read to and subscribed by the debtor cannot testify 
 to the latter's statements upon such examination, the written 
 examination itself being the best evidence.^ And a witness 
 
 66, 16 Daly, 207 ; Ayers v. Harris, 77 Chambliss, 53 Am. & EDg. R Cas. 254 ; 
 
 Tex. 108 ; Passmore v. Passmore, 60 Townsend v. Briggs, 95 Cal. 87 ; Green 
 
 Mich. 463. v. Louisville & N. E. Co., 14 Ky. L. 
 
 1 McGinty v. Henderson, 41 La. Rep. 876. 
 
 Ann. 382. « Gibson v. Trinity County, 80 Cal. 
 
 2 North Eastern R. Co. v. Chandler, 359; Hunniciitt v. State, 75 Tex. 233. 
 84 Ga. 37 ; Gorman v. Minneapolis & ^ People v. Hiuchman, 75 Mich. 587 j 
 St. L. R Co., 78 Iowa, 509 ; Hunn v. Kain v. Larkin et al., 131 N. Y. 800, 
 Michigan C. R. Co., 78 Mich. 513 ; Lin- 43 N. Y. State Rep. 197. 
 
 coin V. Smith, 28 Neb. 762. «Kain v. Larkin, 131 N. Y. 300, 4a 
 
 3 Richmond & D. R. Co. v. Hissong, N. Y. State Rep. 197. 
 97 Ala. 231; Mary Lee Coal Co. v. 
 
.256 E0LES OF EVIDENCE. 
 
 -cannot refresh his memory by the use of a copy of memoranda 
 made by him, without accounting for tlie absence of the origi- 
 nal.^ So where an auctioneer's memorandum becomes impor- 
 tant, the original alone is sufficient to establish the sale, and a 
 mere copy thereof is not admissible. 
 
 §34. Demonstrative evidence. — The most direct way in 
 ■which relevant facts can be brought to the cognizance of 
 the judge and jury is by inspection or view. With regard to 
 portable objects it is a common practice for the party who 
 has the possession of them to bring them into court, where the 
 judge and jury may inspect them during the course of the pro- 
 ceedings. "With regard to all objects which either cannot be 
 or in fact are not brought into court, a view may be had out 
 of court, either during the trial itself or in certain cases at 
 some prior stage of the proceedings. During the trialthe 
 judge has jurisdiction by the common law, both in civil and 
 criminal proceedings, to adjourn the court for the purpose of 
 a view by the jury of any property or thing of which it is rea- 
 sonable and convenient in all of the circumstances of the case 
 that a view should be had.^ Generally, the most convenient 
 time for such a view is after the questions in issue have been 
 explained to the jury, but before the evidence has been given, 
 but it may be lawfully had at any time before verdict, and 
 may therefore immediately precede the summing-up of the 
 judge.' 
 
 A piece of board with stains supposed to be blood-stains, 
 taken from the floor of a house where defendant, charged with 
 murder, resided when the offense was committed, is admissi- 
 ble though it was taken from such floor nearly a year after 
 the crime was committed and while the house was occupied 
 by others.'' So it is said that evidence of a family resemblance 
 by view and comparison by the jury is admissible in proof of 
 the paternity of a child which has attained some degree of 
 maturity and permanency ; and where the putative father iS 
 ■ dead, a photograph proved to be a good likeness of him is ad- 
 missible for the purpose of comparison.' Pieces of bank-bills 
 
 1 Byrnes v. Pacific Exp. Co., 80 Tex. 2 R. v. Whally, 2 C. & K. 376 ; R. v. 
 120 ; Seattle Land Co. v. Day, 3 Wash. Martin, L. R. 1 C. C. 378. 
 451 ; Alabama M. R. Co. v. Coskey, 92 a r. v. Martin, L. R 1 C. C. 378. 
 .Ala. 354. '' State v. Martin, 47 S. C. C7. 
 
 ^Siiorten v. Judd, 56 Kan. 43. 
 
BEST AND SECOND AET EVIDENCE. 257 
 
 torn in two at the time of an assault with intent to rob, for 
 which defendant is on trial, are admissible to show the result 
 of what occurred at such time.^ The photograph of a child 
 seven years old at the time of his death, alleged to have been 
 caused by defendant's negligence, is admissible to show its 
 physical development, although it was taken two years before 
 the death of the child.^ The picture of a person who was 
 killed is admissible on a trial for homicide for the purpose of 
 showing identity.' The amputated foot of a child cannot be 
 produced before the jury to show the size of the child at the 
 time, while she is present in court at the trial and defendant 
 admits that the amputation was properly done.^ Impressions 
 of foot-prints made in a box of sand with the boot worn by 
 defendant may be exhibited by the state to witnesses on a trial 
 for murder for comparison with boot-prints which they had 
 seen near the body of the murdered person.^ 
 
 Evidence by experiments or demonstrations is proper when 
 they are made under similar conditions and like circumstances 
 to those existing in the case at issue ; ' and whether articles 
 proposed to be exhibited in court are too cumbrous or not is a 
 question within the discretion of the presiding judge.' Thus, on 
 a prosecution for the theft of a cow, pieces of ears and dew laps 
 cut from some cow, and a hide sold by defendant, are admis- 
 sible in evidence for the purpose of identifying an animal 
 which the evidence showed he had killed.* On a prosecution 
 for rape the under-clothing which prosecutrix claims was ou 
 her person and torn by defendant is competent.' So is cloth- 
 ing worn by deceased on a prosecution for shooting.^" So a 
 matron may make an examin^ition of a woman suing for di- 
 vorce on the ground of malformation or abnormal physical 
 
 1 Tracy v. State, 46 Neb. 361. 'Jackson v. Pool, 91 Tenn. 448. 
 
 2 Taylor B. & H. R Co. v. Warner, 'State v. Crow, 107 Mo. 341; Title 
 
 88 Tex. 643. y. State, 30 Tex. App. 597 ; Michael 
 
 » Wilson V. United States, 163 U. S. v. State, 94 Ala. 68 ; State v. Robin- 
 
 613. son, 35 S. C. 340 ; Richards v. State, 
 
 ♦Rest V. Brooklyn Heights R. Co., 83 Wis. 173; People v. Wright, 89 
 
 10 App. Div. 477. Mich. 70. 
 
 s Johnson v. State (N. J.), 35 Atl. SMcMurrin v. Eigby, 80 Iowa, 333. 
 
 Rep. 787. "Levy v. State, 38 Tex, App. 30a 
 
 "Leonard v. Southern P. Co., 31 
 Oreg. 555. 
 17 
 
258 EXILES OF EVIDENCE. 
 
 proportions, amounting to physical incapacity.^ A map or 
 diagram or picture, verified as a correct representation of 
 physical objects, is admissible in evidence for the use of the 
 witnesses in explaining their evidence and to enable the jury 
 to better understand the case.^ So a map of a building set on 
 fire, and of the adjoining and surrounding premises, is compe- 
 tent on a prosecution for arson.' So an expert witness tes- 
 tifying to handwriting may make illustrations on the black- 
 board, before the jury, for the purpose of explaining his 
 testimony.'' The jury may be allowed to view the premises in 
 dispute,* but it is always a matter in the discretion of the 
 court whether they will grant or refuse to allow the jury to 
 inspect the premises.* In bastardy the child may be exhibited 
 to the court or jury in support of other testimony.^ So, on a 
 trial for burglary, a mask, lantern, and other implements of 
 burglary, may be used to enable witnesses to describe and 
 illustrate the appearance of the burglar at the time of the 
 commission of the otfense. On a trial for homicide a bullet 
 taken from the body of the deceased is competent evidence. 
 A pistol and cartridges, found on the person of the defendant 
 accused of murder at the time of his arrest, are competent 
 evidence.' 
 
 §35. Physical examination. — In an action for personal 
 injuries the plaintiff may exhibit his limbs to the jury for the 
 purpose of showing their condition; and a physician may 
 exhibit to the jury the plaintiff in his then condition, and 
 place him in different attitudes for the purpose of enabling 
 them to determine the extent of his disability ;' and a party 
 
 • 
 
 1 Anonymous (Ala.), 7 So. Rep. 100; 6 Stewart v. Cincinn^iti, W. & M. 
 Com. V. Phillips, 162 Mass. 504; Pec- R. Co., 89 Mich. 315; St Louis, A. & 
 pie V. Smith, 106 Cal. ^^. T. H. R. Co. v. Claunch, 41 111. App. 
 
 2 Adams v. State, 28 Fla. 511 ; Knap 592; Andrews v. Youmans, 82 Wis. 
 V. Dechort, 7 App. Div. 390. 81. 
 
 3 People V. Cassidy, 133 N. Y. 612, 'Crow v. Jordan, 49 Ohio St 655. 
 
 44 N. Y. State Rep. 869. e Com. v. Tibbetts, 157 Mass. 519. 
 
 * McKay v. Lasher, 31 N. Y. State » Citizens' Street R Co. ». Willoeby, 
 
 Rep. 690, 121 N. Y. 477; Dryer v. 184 Ind. 568; Cunningham v. Union 
 
 Brown, 52 Hun, 321, 23 N. Y. State Pacific R. Co., 4 Utah, 206; Hess v. 
 
 Rep. 695; Pennsylvania Coal Co. v. Lowery, 123 Ind. 225; Lanark v. 
 
 Kelley, 156 111. 9. Dougherty, 153 IlL 163. 
 
 5 Bedell v. Berkey, 76 Mich. 435; 
 Topeka v. Martineau, 42 Kan. 387. 
 
BEST AND SECONDARY EVIDENCE. 259 
 
 may be compelled to exhibit his alleged injured limbs to a 
 jury.' When a plaintiff as a witness in an action for an injury 
 exhibits' his injured member as a part of his direct examina- 
 tion, it is for the purposes of the trial made the property of. 
 the court and opposite party for the purpose of cross-exam- 
 ination, and in case of refusal to submit to an examination of 
 such injured member by the plaintiff, his evidence, so far as- 
 that exhibit and explanation of the same by the plaintiff is con- 
 cerned, must be stricken out on defendant's motion.^ 
 
 § 36. Photographs, etc. — Courts may notice judicially that 
 all civilized communities rely upon photographic pictures for 
 taking and presenting resemblances of persons and animals, 
 of scenery and all natural objects, of buildings and other arti- 
 ficial objects. It is of frequent occurrence that fugitives from 
 justice are arrested on the identification given by them. They 
 are the signs of the thing taken. A portrait or a miniature 
 taken by a skilled artist, and proven to be an accurate like- 
 ness, would be received on a question of the identity or the 
 appearance of a person not producible in court. Photographic 
 pictures do not differ in kind of proof from the pictures of a 
 painter. They are the product of natural laws and a scien- 
 tific process.' It is true that in the hands of a bungler, who 
 is not apt in the use of the process, the result may not be 
 sa,tisfactory. Somewhat depends for exact likeness upon the 
 nice adjustment of machinery, upon atmospheric conditions, 
 upon the position of the subject, the intensity of the light, the 
 length of the sitting. It is the skill of the operator that takes 
 care of these, as it is the skill of the artist that makes correct 
 drawing of feature and nice mingling of tints for the portrait. 
 Most evidence is but the signs of things. Spoken words and 
 written words are symbols. At one time a deaf-mute, born so, 
 was presumed in law an idiot ; * but later days look upon him 
 as not incompetent to be a witness, if he in fact have under- 
 standing and knows the nature of an oath.^ He is now taught 
 
 1 Graves v. Battle Creek, 95 Mich. 3 Bedell v. Berkley, 76 Mich. 435 ; 
 266; Winner v. Lathrop, 51 N. Y. Keyes v. State, 132 Ind. 536. 
 
 State Rep. 358, 67 Hun, 511. But see * 1 Hale, 34. , 
 
 Peoria, D. & E. R. Co. v. Rice, 144 111. « Ruston's Case, 1 Leach Cr. Cas. 
 
 237. 408. 
 
 2 Winner v. Lathrop, 67 Hun, 511, 
 51 N. Y. State Rep. 258. 
 
260 EULBS OF EVIDENCE. 
 
 to give ideas to his fellow-men by signs, and his deprivation 
 of some of the common faculties of humanity does not exclude 
 him from the witness-box. The signs he makes must be trans- 
 , lated by an interpreter skilled and sworn. So the signs of 
 the portrait and the photograph, if authenticated by other 
 testimony, may give truthful representations. When shown 
 .by such testimony to be correct resemblance of a person, they 
 may be shown to the triers of the facts, not as conclusive, but 
 as aids in determining the matter in issue, — still being open, 
 like other proofs of identity or similar matter, to rebuttal or 
 doubt. A witness who speaks to personal appearance or 
 identity tells in more or less detail the minutia thereof as 
 taken by his eye. What he says is a description thereof by 
 one mode of signs — by words orally uttered. If his testimonv 
 be written instead of spoken, and is offered as a deposition, it 
 is a description in another mode of signs — by words written; 
 and the value of that mode, the deposition, depends upon the 
 accuracy with which his words uttered are put into words 
 written. Now if he has before him a portrait or a photograph 
 of the person, and it shows to him a correct copy of that per- 
 son, if it produce to his view a correct description, which he 
 testifies is a likeness, why may not that be given to the jury 
 as a description of the person by the witness in another mode 
 of signs? The portrait and the photograph may err, and so 
 may the witness. That is an infirmity to which all human 
 testimony is lamentably liable.' A photograph is admissible 
 in evidence, although its correctness is not proved by the 
 photographer who made it, where a person familiar with the 
 premises, the person or thing, after examining it, testifies that 
 it correctly describes the same and is correct.^ So it seems 
 that a photograph of the scene of an accident is admissible, 
 although the situation had been changed before it was taken.' 
 So photographs of premises are admissible where an inspec- 
 tion of them by a juror is proper but impracticable.* Such 
 photographs may be used by witnesses in explaining their tes- 
 
 1 Albert! v. New York, L. E. & W. a Stott v. New York, L. E. & W. E. 
 R Co., 118 N. Y. na, 27 N. Y. State Co., 50 N. Y. State Rep. 500, 143 N. Y. 
 Eep. 865. 635. 
 
 2 Rosevelt Hospital v. New York El. < Omaha S. R. Co. v. BersoD, 36 
 E. Co., 66 Hun, 633, 50 N. Y. State Neb. 89. 
 
 Kep. 456. 
 
BEST AND SECONDAEY EVIDENCE, 261 
 
 timony.* A photograph of a defendant is competent to show- 
 that he wore different clothes or whiskers at a prior time.^ 
 Photographs taken by the X-ray process are admissible to 
 show the present condition of a bone entirely hidden from the 
 eye of a surgeon, if or the purpose of illustrating or making 
 clear the testimony of experts.' Photographs of a portion of 
 a sidewalk having a sudden rise of from four to six inches are 
 ■not inadmissible in an action for personal injuries from stum- 
 bling over such rise because of the difference in the light and 
 shade between photographs and the image on the retina of the 
 human eye.* 
 
 1 Ortiz V. state, 30 Fla. 256 ; Turner Y. State Rep. 333 ; Stott v. New York, 
 
 V. Boston & M. E. Co., 158 Mass. 261. L. E. & W. E. Co., 50 N. Y. State Rep. 
 
 i^Com. V. Morgan, 159 Mass. 375; 500. 
 
 Com. V. Connors, 156 Pa. St. 147; 'Smith v. Grant, 29 Chicago Leg. 
 
 State V. EUwood, 17 R. I 768 ; United News, 145. 
 
 States V. Pagliano, 54 Fed. Rep. 1001 ; * Scott v. New Orleans, 75 Fed, Rep, 
 
 People V. Webster, 68 Hun, 11, 62 N. 373. 
 
CHAPTEE IX. 
 
 PAROL EVIDENCE CONCERNING WRITINGS. 
 
 L PAROL EVIDENCE CONCERNING 
 WRITINGS. 
 
 § 1. In general. 
 
 2. Contemporaneous parol con- 
 
 tract — Presumptions as to. 
 
 n. SEALED INSTEUMBNTS. 
 
 3. Actions at law. 
 4 Equity actions. 
 
 in. EVIDENCE FOR THE INTERPEETA- 
 TION OF DOCUMENTS. 
 
 5. In general 
 
 6. Illustrations. 
 
 IV. TIME OF PERFORMANCE. 
 
 V. TO IDENTIFY A SUBJECT OB PER- 
 
 SON. 
 
 VI. TO SHOW INTENTION OF PARTIES. 
 
 7. Illustrations. 
 
 VIL TECHNICAL TERMS EXPLAINED 
 BY PAROL. 
 
 § 8. Forms of expression. 
 
 Vin. LATENT AMBIGUITIES. 
 
 9. In construction of wilL 
 IX. PATENT AMBIGUITIES. 
 X CUSTOM AND USAGE, 
 
 10. In general 
 
 11. Illustrations. 
 13. Qualities of. 
 
 13. When not necessarily general. 
 14 How established. 
 
 XL LOCAL USAGE — NOTICE OF MUST 
 BE SHOWN. 
 
 XIL WHEN CUSTOM NOT VALID. 
 
 XIII. MEANING OF WORDS INTER- 
 PRETED BY USAGK 
 
 XIV. ADDING INCIDENT TO CONTRACT. 
 
 I. PAEOL EVIDENCE OONOEENING WRITINGS. 
 
 § 1. In general. — As a general rule, in the absence of latent 
 ambiguity therein, parol evidence is not admissible to explain, 
 vary or contradict a written instrument, as between the par- 
 ties thereto or their privies.^ Portions of this rule are stated 
 by Sir J. Stephen, in his Digest of the Law of Evidence,'' as fol- 
 lows: "When any judgment or other judicial or oflficial pro. 
 ceeding, or any contract or grant, or any other disposition of 
 
 1 Pierson v. Arkenburgh, 36 N. Y. 
 State Rep. 83 ; 136 N. Y. 668 ; Hair v. 
 Johnson, 85 111. App. 563 ; Hancock 
 V. Cossett, 45 Fed. Rep. 754 ; Davis v. 
 Stout, 136 Ind. 13; Meier v. Kelly, 20 
 Oreg. 86 ; Ellis v. Darden, 86 Ga. 368 ; 
 
 Re Keleman's Will, 136 N. Y. 73; 36 
 N. Y. State Rep. 390; Lancaster Mills 
 v. Merchants' Cotton Press & S. Co., 
 89 Tenn. 1. 
 3 Art 90. 
 
PAROL EVIDENCE CONCEENING WEITINGS. 263 
 
 property, has been reduced to the form of a document or series 
 of documents, no evidence can be given of such judgment or 
 proceeding, or of the terms of such contract, grant or other 
 disposition of property, except the document itself, or sec- 
 ondary evidence of its contents in cases in which secondary 
 evidence is admissible. Nor can the contents of any such 
 document be contradicted, altered, added to or varied by oral 
 evidence ; provided, that any of the following matters may be 
 proved : 
 
 " (1) Fraud, intimidation, illegality, want of due execution, 
 want of capacity in any contracting party, the fact that it is 
 wrongly dated,^ want or failure of consideration,''or mistake 
 in fact or law, or any other matter which, if proved, would 
 produce any effect upon the validity of any document or of 
 any part of it, or which would entitle any person to any judg- 
 ment, decree or order relating thereto.' 
 
 " (2) The existence of any separate oral agreement as to any 
 matter on which a document is silent, and which is not in- 
 consistent with its terms, if from the circumstances of the 
 case the court infers that the parties did not intend the docu- 
 ment to be a complete and final statement of the whole of the 
 transaction between them.* 
 
 " (3) The existence of any separate oral agreement consti- 
 tuting a condition precedent to the attaching of any obliga- 
 tion under any such contract, grant or disposition of property.' 
 
 " (4) The existence of any distinct subsequent oral agreement 
 to rescind or modify any such contract, grant or disposition 
 of property, provided that such agreement is not invalid under 
 the statute of frauds or otherwise.^ 
 
 "(5) Any usage or custom by which incidents not expressly 
 mentioned in any contract are annexed to contracts of that 
 description, unless the annexing of such incident to such con- 
 
 1 ReflEell v. RefEell, L. R. 1 P. & D. i FustiDg v. Sullivan, 41 Md. 162, 
 139. 169 ; HutohiDs v. Hibbard, 34 N. Y. 
 
 2 Crandall v. "Willig, 166 111. 233. 24, 26. 
 
 3 Union Mutual Ins. Co. v. Wilkin- 5 Shughart v. Moore, 78 Pa. St 469, 
 son, 13 Wall. 222, 231 ; Bank of U. S. 472: Pike v. Fay, 101 Mass. 134, 186. 
 V. Dunn, 6 Pet. 51, 57 ; 2 Whart. Ev. 6 Monroe v. Perkins, 9 Pick. 298, 
 g§ 930-935, 937. As to date, see Dea- 302 ; Russell v. Barry, 115 Mass. 300, 
 kins V. HoUis, Adm'r, 7 C. & J. 31 1, 316. 302. 
 
264 EULES OF EVIDENCE. 
 
 tract would be repugnant to or inconsistent with the express 
 terms of the contract.^ 
 
 Oral evidence of a transaction is not excluded by the fact 
 that a documentary memorandum of it was made, if such 
 memorandum was not intended to have legal effect as a con- 
 tract, or other disposition of property.'' Oral evidence of the 
 existence of a legal relation is not excluded by the fact that 
 it has been created by a document, when the fact to be proved 
 is the existence of the relationship itself, and not the terms 
 on which it was established or is carried on.' The fact that 
 a person holds a public office need not be proved by the pro- 
 duction of his written or sealed appointment thereto, if he is 
 shown to have acted in it." * 
 
 § 2. Contemporaneous oral contract — Presumption as 
 to. — As a general rule the law presumes that a written con- 
 tract merges all prior and contemporaneous negotiations and 
 oral promises in reference to the same subject, and that when 
 the terms of an instrument are in writing, the rights and 
 duties of the parties depend upon the terms and legal intend- 
 ment of the instrument itself; that the whole agreement of 
 the parties, and the extent and manner of the undertaking, 
 are embraced in the writing. The rule is the same in equity 
 as at common law ; and although in equity a written contract 
 may bo set aside or reformed for fraud or mistake, it cannot 
 be controlled by evidence that it was executed on the faith of 
 a contemporaneous or preceding oral stipulation not embraced 
 in it ; nor can it be set' aside on the ground that such oral 
 stipulation has not been performed, unless it is also shown that 
 the stipulation has been omitted by mistake. Thus the courts, 
 recognizing that memory has natural defects, besides being 
 subject to be warped and twisted by bias, and being liable in 
 the face of self-interest to substitute strained and unwar- 
 ranted inferences for the language used, have declared a gen- 
 eral rule applicable to this subject: that the presumption of 
 law is that a contract reduced to writing contains the whole 
 of the agreement, and that oral representations and stipula- 
 
 1 Bliven v. New England Screw Co., ^ Button v. Woodman, 9 Cush. 355, 
 
 33 How. (U. S.) 430; Thompson v. 263; Spiers v. Willison, 4 Cranch, 
 
 Riggs, 5 Wall. 663, 679 ; Moraa v. 398 ; 1 Whart. Bv., §§ 78, 1315-18. 
 Prather, 33 id. 492, 503. * 1 Ph. Ev. 449-50 ; T. E. 139 ; Bank 
 
 2Keene v. Meade, 8 Pet. 1, 7; of U. S. v. Dandridge, 13 Wheat. 64, 
 
 Cramer v. Shriner, 18 Md. 147 ; 1 70 ; McCay v. Curtice, 9 Wend. 17. 
 
 "WViarf P.TT H 1 1 
 
PAROL EVIDENCE CONCEENING "WAITINGS. 265 
 
 tions differing from and not inserted in it will not be admit- 
 ted to add to or take from, vary or modify the written 
 agreement.' The object of the rule is to protect the parties 
 to the contract from bad memories and bad faith. The ex- 
 ception of which the largest number of the authorities treats is 
 based upon the imperfection of language and the inadequate 
 manner in which people adjust words to the facts to which 
 they apply. Another exception is where the instrument does 
 not purport to be the complete and entire contract of the 
 parties ; as where the writing shows on its face that it does 
 not embody the entire contract, or where it was executed 
 merely to carry out some provision of an oral contract em- 
 bracing a wider field than that covered by the writing, or 
 relates only to a separable and distinct part of such contract, 
 or to a collateral matter.^ But a written instrument is held 
 to contain the entire agreement where on its face it appears 
 to be, though it is not in fact, complete, and it is not shown 
 that its appearance of completeness results from fraud, acci- 
 dent or mistake; and parol evidence is inadmissible to show 
 that one of several transactions attempted to be reduced to 
 writing by such instrument is not embraced therein.' Thus, 
 where there is no fraud or mistake in the preparation of 
 the instrument, and it appears that the party knew its ef- 
 fect and purport, there is no ground for the reformation of 
 the contract, and a contemporaneous promise on the faith of 
 which he signed cannot be given in evidence to control it.* 
 
 A different rule has long prevailed in Pennsylvania, and it has 
 there been held that everything that passes at the time of the 
 execution of a deed is admissible in evidence ; and that although 
 there be no fraud or mistake in the execution of the instru- 
 ment, yet if its execution was obtained by means of a contem- 
 poraneous verbal stipulation, this may be given in evidence, 
 
 1 Sirk V. Ela, 163 Mass. 394 ; Tietz off v. Ferree, 168 Pa. St 361 ; Walton 
 
 V. Tietz, 90 Wis. 66; Custeau v. St. v. FoUaDsbee, 165 111. 480 ; Re Sohieth's 
 
 Louis L. Imp. Co., 88 Wis. 311 ; Be- Estate, 179 Pa. St 308. 
 
 dell v. Richmond & D. R. Co., 94 2 Smith v. Wood, IBS Ind. 231. 
 
 Ga. 33 ; Dixon- Woods Co. v. Phillips - Willis v. Byars, 3 Tex. Civ. App. 
 
 Glass Co., 169 Pa. St 167; Boyd v. 134; Averill v. Sawyer, 63 Conn. 520 ; 
 
 Paul, 135 Mo. 9 ; Shattuok v. Rogers, Wiley v. California H. Co., 96 Cal. 
 
 54 Kan. 366; Mattison v. Chicago, R. 118. 
 
 L & P. R. Co., 43 Neb. 545 ; Walton * Wilson v. Dean, 74 N. Y. 531. 
 County V. Powell, 94 Ga. 646 ; Wyck- 
 
266 EULES OF EVIDENCE. 
 
 because it would be a fraud to enforce the instrument without 
 performing the stipulation. It was thus held in Christ v. Dif- 
 fenbach ' that a Verbal stipulation, made at the time of the 
 execution of a lease, should be enforced. The cases declaring 
 this doctrine are very numerous, and it has been carried so 
 far as to hold that, in an action against a surety upon a bond, 
 he may, as a defense, show that he executed it under a verbal 
 declaration by the obligee that his signing was a mere mat- 
 ter of form, and that he should never be called upon for pay- 
 ment. It is certain that in many of the states such a doctrine 
 has never been adopted, and that the current of authorities 
 sustains the proposition that, both at law and in equity, one 
 who sets his hand and seal to a written instrument, knowing 
 its contents, cannot be permitted to set up that he did so in 
 reliance upon some verbal stipulation, made at the time, relat- 
 ing to the same subject, and qualifying or varying the instru- 
 ment which he thus signs. The very purpose of the rule which 
 excludes evidence of such declarations is to avoid the uncer- 
 tainties attendant upon such evidence, and equity will not 
 set aside that important and well-settled rule for the purpose 
 of relieving a party against a risk which he has voluntarily 
 incurred. Thus, it is not competent to aver or prove that a 
 note drew only six per cent, interest, where the note expressly 
 fixes the rate at ten per cent. ; nor that a will was executed in 
 contemplation of marriage ; nor to show the purpose or object 
 of a subscription to pay a certain sum of money upon certain 
 work being completed.^ Parol evidence is inadmissible to ex- 
 plain a written contract or to show the intention of the parties 
 when the contract is free from doubt.' Thus, a party cannot 
 prove by parol that his absolute undertaking i^ writing was 
 not to be binding upon him.* So, where a note is payable 
 upon demand, parol testimony is not admissible to show that 
 it was agreed that it should not be payable until a given event 
 happened;^ or to show that a note, payable on a day certain, 
 was to be paid on a contingency only." Where a contract for 
 the sale of goods is silent as to the time of delivery, the law 
 
 1 1 Serg. & Eawle, 464. State Rep. 83 ; 130 N. Y. 668 ; Davis 
 
 2 Stillings V. Trimmins, 153 Mass. v. Stout, 136 Ind. 12. 
 
 147 ; Rhodes v. Newhall, 126 N. Y. * Westbrook v. Howell, 34 111. App. 
 
 474; 38 N. Y. State Rep. 431; Hetz- 571. 
 
 ler V. Morrell, 82 Iowa, 563. ' Davis v. Stout, 186 Ind. 13 
 
PAROL E-VIDENCE OONOEENING WRITINGS. 267 
 
 implies a contract to deliver in a reasonable time, and oral 
 evidence of an agreement to take thorn away at once is inad- 
 missible.' So a contract of sale, silent as to the time of pajr- 
 ment, implies payment on delivery, and proof of intended 
 credit is inadmissible.^ 
 
 II. SEALED INSTEUMENTS. 
 
 § 3. Actions at law. — In an action at law upon a sealed in- 
 strument executed by one party in the absence of anything 
 in the instrument indicating that it was done for another, 
 evidence cannot be received to bring in, or enforce the cove- 
 nant against, any other person, but the rights and obligations 
 of the parties must be determined according to the language 
 and import of the agreement as it may have been made and 
 sealed by the parties.' 
 
 § i. Equity actions.— But the rule is different in equity, 
 for the fact of a purchase of real property being made in the 
 name of one partner will not preclude the firm from proving 
 that the purchase was made in reality by and for its benefit. 
 In adopting, following and applying this principle, the courts 
 observe the liberal practice sustained and adhered to in equity. 
 It declines to be bound by technical legal rules, and endeavors 
 to discover and enforce the transactions of parties as they 
 themselves have framed them and design they should be car- 
 ried into effect. The relief to be awarded adapts itself to the 
 special circumstances of each particular case, adjusting all 
 cross-equities and bringing all the parties in interest before 
 the court. Courts of equity do not regard the forms of in- 
 struments, but they look to the intent, and give to the acts of 
 the parties the construction which that intent justifies and re- 
 quires, and will wholly disregard the form of the transaction 
 and look to the substance.'' 
 
 443 ; Fay v. Blackstone, 31 111. 538 ; Hyatt v. State, 52 Ark. 416 ; Crawford 
 
 Dikeman v. Arnold, 87 Mich. 495; County v. Coppock, 79 Iowa, 482; 
 
 Smith V. Taylor, 82 Cal. 533 ; Walton Smith v. Taylor, 83 Cal. 533 ; Walton 
 
 V. Agricultural Ins. Co., 116 N. Y. 317, v. Agricultural Ins. Co., 116 N. Y. 317, 
 
 ■ 26 N, Y. State Eep. 780. 36 N. Y. State Rep. 780. 
 
 ' Lindengren Furniture Co. v. Mead ^ Briggs v. Partridge, 64 N. Y. 357 ; 
 
 (Minn.), 44 N. W. Rep. 306. Williams v. Gillies, 75 id. 197. 
 
 2KessIer v. Smith, 43 Minn. 494; *Fairchildv.Fairchild,64N. Y.471; 
 
 Patterson v. Eamspeck, 81 Ga. 808 ; Stoddard v. Whitney, 46 id. 637. 
 
268 EULKS OF EVIDENCE. 
 
 III. EVIDENCE FOE THE INTEEPEETATION OF DOOtTMENTS. 
 
 § 5. In general. — Sir J. Stephen, in his Digest of the Law 
 of Evidence,* lays down the following rule for the interpreta- 
 tion of documents ; 
 
 (1) In order to ascertain the meaning of the signs and words 
 made upon a document, oral evidence may be given of the 
 meaning of illegible or not commonly intelligible characters, 
 of foreign, obsolete, technical and provincial expressions, of 
 abbreviations and of common words which, from the context, 
 appear to have been used in a peculiar sense ; ' " but evidence 
 may not be given to show that common words, the meaning 
 of which is plain, and which do not appear from the context 
 to have been used in a peculiar sense, were in fact so used." ' 
 
 (2) " If the words of a document are so defective or ambigu- 
 ous as to be unmeaning, no evidence can be given to show 
 what the author of the document intended to say."* 
 
 (3) " In order to ascertain the relation of the words of a 
 document to facts, every fact may be proved to which it re- 
 fers or may probably have been intended to refer, or which 
 identifies any person or thing mentioned in it."* 
 
 (4) " If the words of a document have a proper legal mean- 
 ing, and also a less proper meaning, they must be deemed to 
 have their proper legal meaning, unless such a construction 
 would be unmeaning in reference to the circumstances of the 
 case, in which case they may be interpreted according to their 
 less proper meaning." '^ 
 
 (5) " If the document has one distinct meaning in reference 
 to the circumstances of the case, it must be construed accord- 
 ingly, and evidence to show that the author intended to ex- 
 press some other meaning is not admissible." ^ 
 
 (6) " If the document applies in part but not with accuracy 
 to the circumstances of the case, the court may draw inferences 
 
 1 Art 91. 6 Eeed v. Insurance Co., 95 U. S. 23, 
 
 2 Stoops V. Smith, 100 Mass. 63, 66 ; 30 ; Maryland v. B. & O. R R Co., 22 
 Bank of U. S. v. Dunn, 6 Pet. 51 ; Wall. 105, 113. 
 
 Thorington v. Smith, 8 Wall. 1, 12; 3 « Reynolds v. Com. F. Ins. Co., 47 
 Whart. Ev., §§ 939, 940. N. Y. 597, 605 ; The Confederate Note 
 
 3 Moran v. Prather, 33 Wall. 493, Case, 19 Wall. 548, 559. 
 
 501. 7 Pindar v. Resolute F. Ins. Co., 47 
 
 ^Peisch V. Dickson, 1 Mason, 9; N. Y. 115, 117; Reynolds v. Com. F. 
 Pingry v. Watkins, 17 Vt. 379. Ins. Co., id. 597, 605. 
 
PAEOL EVIDENCE CONOEENING WEITINGS. 269 
 
 from those circumstances as to the meaning of the document, 
 whether there be more than one or only one thing or person 
 to whom or to which the inaccurate description may apply. 
 In such cases no evidence can be given of statements made by 
 the author of the document as to his intentions in reference to 
 the matter to which the document relates, though evidence 
 may be given as to his circumstances, and as to his habitual 
 use of language or names for particular persons or things." ^ 
 
 (7) " If the language of the document, though plain in itself, 
 applies equall}'' well to more objects than one, evidence may 
 be given both of the circumstances of the case and of state- 
 ments made by any party to the document as to his intentions 
 in reference to the matter to which the document relates." ^ 
 
 (8) " If the document is of such a nature that the court will 
 presume that it was executed with any other than its apparent 
 intention, evidence may be given to show that it was in fact 
 executed with its apparent intention." ' 
 
 § 6. Illustrations. — (1) The general rule is that, whenever 
 there is a complete written agreement, all previous conversa- 
 tions and verbal agreements of the parties are merged therein, 
 and cannot be shown to alter or vary the writing or to show 
 the intention of the parties, except where there is a latent am- 
 biguity in the contract.* 
 
 (2) Parol evidence is admissible to show that certain words 
 used in a contract have a technical, commercial meaning, in 
 view of which the parties contracted, and to show what that 
 meaning is,* not for the purpose of altering the contract, but 
 of ascertaining what the real contract is and of enforcing it 
 as the parties intended it should be,' 
 
 (3) Parol evidence is admissible to show that the phrase, " to 
 
 ■ Atkinson's Lessee v. Cummins, 9 * Schmohl v. Fiddick, 34 111. App. 
 
 How. (U. S.) 479, 486 ; Reed v. Insur- 190 ; Edwards v. Clark, 83 Mich. 246 ; 
 
 ance Co., 95 U. S. 28, 80; Langlois v. Van Vleet v. Sledge, 45 Fed. Rep. 
 
 Crawford, 59 Mo. 456, 466. 743; Schroeder v. Frey, 87 N. Y, 
 
 2 Lycoming Mutual Ins. Co. v. State Rep. 945. 
 
 Sailer, 67 Pa. St. 108, 112; Ryerss v. 6 Long v. J. K. Armsby Co., 43 Mo. 
 
 Wheeler, S2 Wend. 148, 150 ; Burr App. 353. 
 
 V. Broadway Ins. Co., 16 N. Y. 267. « Schmohl v. Fiddick, 34 111. App. 
 
 » Graves v. Spedden, 46 Ind. 537, 190; Missouri, K. & T. R. Co. v. 
 
 533 ; Woolery.v. Woolery, 39 Ind. 249, Graves, 2 Tex. App. 196 ; Clay v. 
 
 253. Field, 138 U. S. 464. 
 
270 EULESOF EVIDEKCB. 
 
 be taken by January 1st, 1883, on dock in New York," means 
 that the goods are to be delivered as the purchaser shall from 
 time to time order, and if not taken by the speciiied time a 
 bill is to be forwarded for the balance, and, if paid by the pur- 
 chaser, the goods are to be held in store subject to his order.^ 
 
 (4) A written contract silent or ambiguous as to certain mat- 
 ters may as to them be explained by parol evidence not con- 
 flicting with anything plainly expressed in the contract.* 
 
 (5) Extrinsic facts and circumstances showing the practical 
 interpretation placed by the parties upon an ambiguous ex- 
 pression used in the contract are admissible in evidence.' 
 
 (6) Parol evidence as to the conversation between the par- 
 ties to a contract, prior to making it, is admissible to explain 
 indefinite and uncertain phrases contained therein.* 
 
 (7) It is allowable to show what certain words mean ; as, ta 
 show what is meant by the words " good custom cowhide 
 boots," "good merchantable shipping hay." ' 
 
 (8) It is not allowable to permit parol evidence to go be- 
 yond the purpose of aiding in the interpretation of a written 
 instrument, and show that the subject thereof was other and 
 dififerent from that described in the instrument.' 
 
 IV. TIME OF PEEFOEMANCE. 
 
 The authorities are clear that, where the written contract is 
 silent as to the time of performance, the law implies that it 
 should be performed in a reasonable time, and evidence of a 
 contemporaneous oral agreement is inadmissible to vary the 
 construction to be legally implied from the writing itself.'^ 
 Thus, where a contract in writing for the sale of property or 
 the payment of money states no time for performance, the 
 
 1 Atkinson v. Truesdell, 38 N. Y. Lock v. Rowell, 47 N. H. 46; Nelsou 
 State Rep. 159, 127 N. Y. 330. v. Sun Mut. Ins. Co., 71 N. Y. 453 ^ 
 
 2 Johnson v. Patterson, 80 Ga. 97 ; Hatch v. Douglass, 48 Conn. 116, 40 
 Beakis v. DaCunha, 37 N. Y. State Am. Rep. 154. 
 
 Rep. 14; NeS v. Klopfer, 73 id. 273. « Landers v. Cooper, 115 N. Y. 379, 
 
 3 Cosper V. Nesbit, 25 Pac. Rep. 866 ; 26 N. Y. State Rep. 272. 
 
 Ellis V. Harrison, 104 Mo. 270. ' Pope v. Terre Haute Car & Mfg. 
 
 4 Cassidy v. Fontham, 38 N. Y. State Co., 107 N. Y. 61, 11 N. Y. State Rep. 
 Rep. 177 (1891); J. K. Armsby Co. v. 209; Morowske et al. v. Rolirig, 53 
 Eckerly, 42 Mo. App. 299. N. Y. State Rep. 220 (1893); Driver v. 
 
 6 Fitch V. Carpenter, 43 Barb. 40 ; Ford, 90 111. 595. 
 
PAROL EVIDENCE CONCERNING WRITINGS. 271 
 
 law implies that performance is to be made within a reasort- 
 able time, and the implication cannot be rebutted by extrinsic 
 testimony going to fix a definite time, because this varies the 
 contract.' Thus, a written promise to pay money, no time 
 being expressed, means a promise to pay it on demand, and 
 evidence that payment at a future day was intended is not ad- 
 missible.' 
 
 V. TO IDENTIFY SUBJECT OK PERSON. 
 
 (a) Parol evidence is admissible to identify and apply the 
 subject-matter of a contract,' so as to satisfy the description 
 contained therein, even when appearing on its face to be per- 
 fectly intelligible.^ Thus, such evidence is admissible to iden- 
 tify the parties to an instrument or record, as where there are 
 two persons by the same name, to show which was intended ; * 
 or that a contract made by a person in his own name was made 
 as the agent of another ; * or that a contract is that of a corpora- 
 tion, though on its face the contract is that of a firm of a like 
 name;' or whose money paid for the land, the title to which 
 was taken in the name of another than the payor ; ^ or to vary 
 the effect of entries in bankbooks and'on depositor's bank 
 pass-book in respect to the ownership of the deposits ; ' or that 
 a party to an instrument was a surety.'" 
 
 (J) The test of the admissibility of evidence dehors a deed 
 is whether it tends to so explain some descriptive word or 
 expression as to show that such phraseology, otherwise of 
 doubtful import, contains in itself, with such explanation, an 
 identification of the land conveyed;" and the same rule holds 
 good of all written instruments, — as to identify the property 
 
 1 2 Pars, on Cont. 794 v. Ford, 31 Md. 489 ; Souhegan Nat. 
 
 2Boehm V. Lies etal., 46 N.T. State Bank v. Boardman, 46 Minn. 393; 
 
 Eep 86 (1893). Northern Nat Bank v. Lewis, 78 Wis. 
 
 3 Dowling V. Salliotte, 83 Mich. 131 ; 475. 
 
 Sohofield V. Jones, 85 Ga. 816, 43 Alb. ? MoClintock v. Hughes Bros. Mfg. 
 
 L. J. 418 ; Enliss v. McAdam, 108 Co., 39 Tex. App. 18. 
 
 N. C. 507. 8 Ducie v. Fovd, 138 U. S. 587. 
 
 ^Shinker y. Haagsma, 99 Mo. 308. » Kennebec Sav. Bank v. Fogg, 8a 
 
 'State V. Weare, 88 N. H. 314; Me. 374. 
 
 Sawyer v. Boyle, 31 Tex. 28 ; Walker " Schofield v. Jones, 85 Ga. 816, 43- 
 
 V. Wells, 35 Ga. 141 ; Plant v. Bourne, Alb. L. J. 418. 
 
 66 L. J. Ch. (N. S.) 458. "Blow v. Vaughn, 105 N. C. 198-,. 
 
 6 Barclay v. Puesley, 110 Pa. St. 13 ; Hogan v. Wallace, 166 111. 838. 
 Luna V. Mohr, 3 N. M. 56; Oelrich 
 
272 EULES OF EVIDENCE. 
 
 covered by a chattel mortgage,* or the property excepted 
 from a bill of sale,^ or to show to what security a receipt for 
 certain moneys paid referred.' 
 
 (c) Parol evidence is admissible, as between the immediate 
 parties to a promissory note signed with the addition " Agt.," 
 to show that it was understood between the parties that the 
 maker signed only as agent, and the note was the obligation 
 of the principal only.* So it may be shown by parol that the 
 payee of a note is agent of the plaintiff or defendant and that 
 such note was talcen as agent merely.' It may also be shown 
 that a party placed his name on a note as a witness to the 
 signature of another person and not as indorser.' But parol 
 evidence is inadmissible to show for what purpose and to 
 whom a deed was intended to pass title when the legal effect 
 of the deed is readily ascertainable from its face.' 
 
 {d) Parol evidence is admissible to show that a written 
 contract complete in all respects, executed and delivered by 
 the person sought to be charged, was not in fact the contract 
 between the parties, and that it was in fact executed and de- 
 livered for a particular purpose, and to show the real contract 
 resting in parol.' 
 
 (e) Where a guaranty is made in writing that a wood-pulp 
 machine will take care of all the pulp reduced from four 
 " Scott grinders," and deliver the pulp fifty per cent, dry, and 
 there is proof that Scott grinders are manufactured of vary- 
 ing capacity, parol evidence identifying the machines known 
 as Scott grinders is essential. The fact that the grinders are 
 of different productive capacity involves the further inquiry, 
 to grinders of what capacity did the parties refer? This may 
 be shown by parol. It simply makes intelligible what needs 
 explanation ; and, construing the written contract in light of 
 
 1 Harris v. Allen, 104 N. 0. 86 ; New » Stockton Savings & Loan Ass'n v. 
 Hampshire Cattle Co. v. Bilby, 37 Giddings, 96 Cal. 84, 81 Am. St. Rep. 
 Mo. App. 43. ' 181. 
 
 2 Buford V. Lonegan, 5 Utah, 173*, 6 Tombler v. Reitz, 134 Ind. 9. 
 Hamilton V. Jones, R J. Q., 10 C. D. 496. 'Prichard v. James, 93 Ky. 306 1 
 
 SDeCamp v. Mclntire, 115 N. Y. Steerla v. Kaiser (La. Ann.), 12 So. 
 
 258, 26 N. Y. State Rep. 366. Rep. 839 ; Matthews v. Dubuque Mat- 
 
 *Keidan v. Winegar, 95 Mich. 430; tress Co., 97 Iowa, 246. 
 
 Kline v. Bank of Tescott, 50 Kan. 91 ; 8 O'Leary v. McDonough, 53 N. Y. 
 
 Brady v. Nally, 151 N. Y. 258 ; Hank- State Rep. 270 (1898) ; Battle v. Horni- 
 
 inson v. Vantine, 152 id. 20 ; Stauden brook (1897), 1 Ch. 25, 66 L. J. Oh. 
 
 V. Brown, id. 138. (N. S.) 144. 
 
PAKOL EVIDENCE CONOEENING WETTINGS. 273 
 
 the explanation, full force may be given to all the words with- 
 out adding to or detracting anything therefrom.^ 
 
 (/) Parol evidence is' admissible to identify the property 
 which is to pass under a written contract of sale, or a corpora- 
 tion which has executed a contract by a name other than that 
 by which it was incorporated, or notes referred to in a contract, 
 or to identify the sura included in a note with the interest 
 due on a pre-existing debt, and that it was given for such in- 
 terest ; and to show where the metes and bounds of surveys 
 were actually run and marked upon the ground. Where there 
 is a conflict between the different calls in the patent, testi- 
 mony whijh simply identifies the property' which is to pass 
 under a written contract of sale does not vary or contradict 
 the terms of the contract.^ But such evidence is not admis- 
 sible to control or vary a description in a grant of land giving 
 distinct and definite boundaries from which the land may be 
 located.' 
 
 VI. TO SHOW INTENTION OF PARTIES. 
 
 The rule which precludes parol evidence to contradict or 
 vary the terms of a written instrument has no application 
 when the sole purport of the evidence is to ascertain the sense 
 in which the words of a written instrument were used by the 
 parties thereto.* Thus, where the language of a written in- 
 strument is ambiguous, equivocal or susceptible of conflicting 
 or varying interpretations, it is proper to ascertain the inten- 
 tion of the parties thereto from the facts and circumstances 
 which induced its execution, and thereupon to enforce it in 
 accord with such intention, and such facts and circumstances 
 iuay be shown by parol. The office of parol evidence in such 
 a case is not to alter the language of the instrument, but to 
 ascertain the purposes to which the parties intended to apply 
 it. In many cases the courts cannot decide that question 
 
 iBagley & S. Co. v. The Saranao R 111 N. C. 418: Keinaa v. Baham, 45 
 
 P. & P. Co., 48 N. Y. State Rep. 444; La. Ann. 741 ; Marjnet Co. v. Archi- 
 
 Studstill V. Wilcox, 94 Ga. 690 ; SuUi- bald, 37 W. Va. 778 ; Russell v. Davis, 
 
 van V. Collins, 20 Colo. 528; Gress 51 Minn. 482; Kelly v. Leachraan 
 
 Lumber Co. v. Goody, 94 Ga. 519; (Idaho), 33 Pac. Rep. 44. 
 
 Lachman v. Block, 47 La. Ann. 505; sgeardsley v. Crane, 52 Minn. 537; 
 
 Peaks V. Lord, 42 Neb. 15. Thompson v. Smith, 96 Mich. 258. 
 
 2 Lonergan v. Buford, 148 U. S. 587, i 1 Greenl. Ev., § 277. 
 47 Alb. L. J. 454 ; Hopper v. Justice, 
 18 
 
274 EULES OF EVIDENCE. 
 
 upon the mere constraetion of the document itseir, without 
 lookino: at the surrounding circumstances to see what was the 
 subject-matter which the parties had in contemplation when 
 the instrument was made. It is proper to ascertain that for 
 the purpose of seeing what the parties were dealing about, 
 not for the purpose of altering the terms of the paper by- 
 words of mouth passing at the time, but as a part of the con- 
 duct of the parties, in order to determine what was the scope 
 and object of the intended contract, and to fill up the instru- 
 ment where it is silent. Having done that, the court can turn 
 to the language of the instrument to see if that language is 
 capable of being construed so as to carry into effect that which 
 appears to have been really the intention of both parties.' 
 Thus, where a literal performance is impossible or impracti- 
 cable, or where the language is ambiguous or susceptible of 
 more than one construction, or is vague or general, or inap- 
 propriate to express the true intent, extraneous evidence is 
 admissible to explain, and an antecedent parol agreement may 
 be received to point to the intent of the parties.^ 
 
 § 7. Illustrations. — (1) If the intention of parties toadeed 
 or other instrument is doubtful or in any way ambiguous, evi- 
 dence may be given concerning the subject-matter and pur- 
 pose of the grant, and the circumstances surrounding the 
 parties, when such proof does not conflict with the writing 
 and is necessary to make it intelligible.' Thus, a testator's 
 intention as to a charitable bequest which does not accurately 
 name or describe either of the claimants of the fund may be 
 shown by circumstances.'' But the general rule is, that the 
 intention or understanding of the parties to a written con- 
 tract mast be determined from the lanffuage of the contract.* 
 And the intent existing in the minds of the parties, not evi- 
 denced by their acts, cannot be shown by parol." 
 
 (2) It is not necessary to the validity of a policy of insur- 
 ance that the name of the assured should appear in the contractf 
 
 1 Henry McShane Co. v. Padian, 48 Rep. 85 ; Sturgis v. Work, 122 Ind. 
 N. Y. State Rep. 705. 134 ; Smith v. Kimball, 63 N. H. 606; 
 
 2 Springsteen v. Sampson, 32 N. Y. Dodd v. Templeman, 76 Tex. 57. 
 706; Stillwell v. St. Louis & H. R. < Faulkner v. National Sailors' 
 Co., 39 Mo. App. 221 ; Schroeder v. Home, 155 Mass. 458. 
 
 Frey, 131 N. Y. 563 ; 37 N. Y. State 5 Rigdon v. Conley, 141 HI. 565. 
 Eep. 945 ; Kinck v. Kinck, 75 Va. 13. « Appolos v. Brady, 49 Fed. Rep. 
 
 3 Sire V. Riimbold. 39 N. Y. State 401. 
 
PAEOL EVIDENCE CONOEENING WRITINGS. 275 
 
 but he may be described in other ways than by name ; and if 
 the description is imperfect or ambiguous, extrinsic evidence 
 :nay be received to ascertain the meaning and intent of the 
 oarties in its use.^ 
 
 (3) Extrinsic evidence is admissible to show that an illegiti- 
 mate and not a legitimate nephew of the same name was the 
 person named as executor in a will, where the will refers to 
 an illegitimate grandnephew as nephew and an illegitimate 
 niece as niece.^ So in a case of a clear misnomer of a chari- 
 table institution to which a bequest is made, parol evidence 
 is admissible to show what institution was intended. 
 
 (4) Parol evidence is admissible to prove the circumstances 
 under which a deed was made, or to which it relates, or to ex- 
 plain an ambiguity, intrinsic or extrinsic, or to show the situ- 
 ation of the subject of the deed or of the parties, in order to 
 ascertain the premises intended to be conveyed ; ' and ex- 
 trinsic evidence is always admissible to explain the calls of a 
 deed for the purpose of their application to the subject-mat- 
 ter, and thus give effect to the deed.* 
 
 (5) Upon an issue whether or not a bond signed had become 
 a binding obligation, the alleged bondsmen maj' testify as to 
 what was said and done at the time of signing.* So it may 
 be shown that one written instrument should be substituted 
 for another in a suit upon the latter.^ 
 
 (6) An order to ship goods to a proposed purchaser thereof, 
 although apparenth'^ on its face an entire and complete con- 
 tract, may be shown by parol evidence of the negotiations 
 and circumstances upon which the order was given to have 
 been only a part of the agreenysnt under which goods were 
 to be ordered and shipped as needed.' 
 
 1 Sauerbier v. Union Cent. L. Ins. ^ state ex rel. Croy v. Gregory, 132 
 Co., 39 111. App. 620; Weed v. Lon- Ind. 387. 
 
 don&L. F. Ins. Co., 116 N. Y. 106; « Guidery v. Green, 95 Cal. 630; 
 26 N. Y. State Rep. 414 Vanderliu v. Hovis, Wi Pa. St. 11 ; 
 
 2 Re Ashton (1893), P. 83; 45 Alb. Rhyner v. Carver, 84 Wis. 181. 
 
 L. J. 385. ' Bronson v. Herbert, 95 Mich. 478 ; 
 
 'Hicklin v. McClear, 18 Greg. 136. Hamill y. Supreme Council of R. A., 
 
 * Thompson v. Southern California 152 Pa. St. 537 ; Campbell v. Jimenes, 
 
 M. R. Co., 83 Cal. 497. 52 N. Y. State Rep. 495 (189.S). 
 
276 ETJLES OF EVIDENCE. 
 
 VII. TECHNICAL TEEMS EXPLAINED BY PAROL. 
 
 (1) It is not competent foi' a party to prove the meaning of 
 a written instrument ; he can only prove the peculiar mean- 
 ing of technical words used, and, if words of universal use are 
 used in a technical or peculiar sense, he may prove facts 
 tending to show that they were so used ; but, this being done, 
 it is for the court to interpret the contract. Neither is it 
 competent to prove a custom or usage inconsistent with the 
 terms of the contract ; and, if the language is explicit, it can- 
 not be varied or contradicted by parol evidence, pr a meaning 
 given to the contract different from that called for by its 
 terms. The general rule I take to be, that when the words 
 of any written instrument are free from ambiguity in them- 
 selves, and when external circumstances do not create any 
 doubt or difficulty as to the proper application of those words 
 to claimants under the instrument or the subject-matter to 
 which the instrument relates, such instrument is always to be 
 construed according to the strict, plain, common meaning of 
 the words themselves ; and that in such case evidence dehors 
 the instrument, for the purpose of explaining it according 
 to the surmised or alleged intention of the parties to the in- 
 strument, is utterly inadmissible. 
 
 (2) Custom and usage is resorted to only to ascertain and 
 ■explain the meaning and intention of the parties to a contract 
 when the same could not be ascertained without extrinsic evi- 
 dence, but never to contravene the express stipulations; and 
 if there is no uncertainty as to the terms of the contract, usage 
 cannot be proved to contradict or qualify its provisions. In 
 matters as to which a contract is silent, custom and usage may 
 be resorted to for the purpose of annexing incidents to it. But 
 the incident sought to be imported into the contract must not 
 be inconsistent with its express terms or any necessary impli- 
 cation from those terms. Usage is sometimes admissible to 
 add to or explain, but never to vary or contradict, either ex- 
 pressly or by implication, the terms of a written instrument, 
 or the fair and legal import of a contract.' 
 
 1 Barnard v. Kellogg, 10 "Wall. 383; Walls v. Bailey, 49 N. Y. 464; Collen- 
 der V. Dinsinore, 55 id. 200. 
 
PAROL EVIDENCE OONCEENING WEITI^+aS. 277 
 
 (3) Where there is uncertainty as to the meaning of an in- 
 strument, evidence is admissible of the surrounding facts and 
 circumstances attending its execution; and its uncertain ex- 
 pressions will be construed by the aid so obtained.^ Thus the 
 meaning and application of a testator's language may be deter- 
 mined from oral evidence showing the circumstances, situation 
 and surroundings of the testator at the time of making his 
 will.^ 
 
 (4) While collateral facts and circumstances established by 
 parol evidence are admissible to explain ambiguous or doubt- 
 ful words in an instrument, declarations of parties as to the 
 meaning or application of such words are not admissible.' 
 Thus, evidence as to the meaning of the term " brass buttons," 
 in trade and commerce, is inadmissible.'' It is also admissible 
 to show that a written guaranty of a wood-pulp press, that 
 it would take care of the pulp from four " Scott grinders," was 
 made in reference to the previously represented capacity of 
 the grinders, Scott grinders not being of uniform capacity.' 
 
 § 8. Forms of expression. — Every legal contract is to be 
 interpreted in accordance with the intention of the parties 
 making it. And usage, when it is reasonable, uniform, well 
 settled, not in opposition to fixed rules of law, not in contra- 
 diction of the express terms of the contract, is deemed to form 
 a part of the contract, and to enter into the intention of the 
 parties, when it is so far established and so far known to the 
 parties that it must be supposed that their contract was made 
 in reference to it. Thus in Smith et al. v. Clews * it was held 
 that the words " on approval " in a receipt in the following 
 words: "New York, April, 12, 1879. Eeceived from Alfred 
 H. Smith & Co. by their representative, B. W. Plumb, a pair 
 of single stone diamond ear knobs, 10|^ carats, of the value of 
 
 1 Cook V. Baraboo First Nat Bank, ' Kretschmer v. Hard, 32 Pac. Rep. 
 83 Wis. 31; 46 Alb. L. J. 387: Mc- 418. 
 
 Hugh V. Gallagher, 1 Tex. Or. App. * Erhardt v. Ullman, 51 Fed. Rep. 
 
 196 ; Browne & M. Co. v. Sampson, 414. 
 
 44 111. App. 808. 6 Bagley & S. Co. v. Saranac River 
 
 2 Barnard v. Barlow, 50 N. J. Eq. P. & P. Co., 135 N. Y. 626 ; 48 N. Y. 
 131 ; Re Hobb's Estate, 37 S. C. 19; State Rep. 444. 
 
 Re Gilmore's Estate, 154 Pa. St. 523. « 114 N. Y. 190 ; 23 N. Y. State Rep. 
 
 166. 
 
273 EtILES OF EVIDENCE. 
 
 fourteen hundred dollars, 'on approval' to show to my cus- 
 tomers, said knobs to be returned to said A. H. Smith & Co. 
 on demand. E. Mier," might be shown to have a peculiar 
 and recognized meaning in the diamond trade, and were under- 
 stood not to confer a power to sell, but authority merely to 
 show diamonds to customers and report to the owner, and 
 that this meaning was well known to plaintiffs and to Plumb 
 and Miers. 
 
 VIII. LATENT AMBIGUITIES. 
 
 (a) Latent ambiguity is that which is not apparent on the 
 face of the contract, but arises from the application of the 
 words to the objects to which they refer. There may, for 
 example, be two estates or two persons of the same name or 
 description, and the words may equally apply to either. This 
 doubt or difficulty which has been created by parol evidence 
 may be removed by further evidence of like character calcu- 
 lated to explain which of the estates or persons is embraced 
 by the description in the written instrument.' 
 
 (b) If the meaning of a contract by itself is affected with 
 uncertainty, the intention of the parties may be ascertained 
 by extrinsic testimony,^ and subsequent conversations between 
 the parties are admissible to explain the intended bearing of 
 an uncertain clause in the contract.^ Thus, resort may be had 
 to parol evidence to show the intention of the parties to a 
 guaranty by showing the situation and surroundings of the 
 parties.* 
 
 (c) Parol evidence is admissible to show the definition of the 
 word " season," used in a contract of employment,' or to show 
 the meaning of terms used in any particular trade or occupa- 
 tion, when their meaning becomes material to the construc- 
 tion of a contract.'' 
 
 iRe Ashton (1893), P. 83; 45 Alb. « Gardner v. Watson, 76 Tex. 25. 
 
 L. J. 335. 6 Waechtershauser v. Smith, 31 
 
 2 Greenfield F. Nat. Bank v. Coffin, N. Y. State Rep. 553 ; House v. Walch, 
 163 Mass. 180; Re Curtis, 64 Conn. 144 N. Y. 418. 
 
 501 ; McDonough v. Jolly, 165 Pa. St. « Behrman v. Linde, 15 N. T. State 
 
 543; Wykoff v. Rooney, 167 id. 344; Rep. 129; G'Donohue v. Leggett, 134 
 
 Bartley v. Phillips, 165 id. 335; Farr N. Y. 40, 29 N. Y. State Rep. 983; 
 
 V. Doxtator, 29 N. Y. State Rep. 531. Atlanta v. Schmeltzer, 83 Ga. 609. 
 
 3 Jenkinson v. Monroe, 61 Mich. 
 454; Bradish v. Yocum, 180 111. 886. 
 
PAEOL EVIDENCE OONCEENING WETTINGS. 279 
 
 {d) Evidence is admissible to explain the meaning of the 
 term "harbor of New York," as used in a contract of marine 
 insurance.' * 
 
 (e) A written warranty of a machine to "take care of all the 
 pulp produced by four Scott grinders " may be exi)lained by 
 parol evidence as to what was intended and understood to be 
 the production of such grinders.^ 
 
 (/) A variance between the terms "mouse-colored" and 
 "bay" in the pleadings, and "brown" and "light-brown" in 
 the mortgage sued on and offered in evidence, is cured by sub- 
 sequent parol evidence that these descriptive terms are used 
 interchangeably and synonymously among farmers and stock- 
 men.' 
 
 {g) The term "inch of water," or "square inch of water," 
 has not acquired any fixed technical meaning when used in a 
 grant; and the circumstances surrounding the parties when 
 the grant was made, the size of the apertures through which 
 the water was drawn, the capacity of the wheel, and other 
 facts tending to throw light upon the parties' apparent inten- 
 tion at the time of the grant, are proper matters to be con- 
 sidered.* 
 
 It is said that extrinsic evidence as to the meaning of the 
 word "thermostat" in a contract is inadmissible, as such word 
 has a fixed and definite meaning.^ But the words "from the 
 time boxes are cut," contained in a contract in the manufacture 
 of turpentine, are ambiguous, and cannot be construed by the 
 court without extraneous evidence to explain their meaning 
 as understood by the parties.* Parol evidence is admissible 
 to show the meaning of the words "watch-makers' materials" 
 in a policy of insurance;' and the word "incompatibility," as 
 
 1 Petrie v. Phoenix Ins. Co., 133 83 Wis. 437 ; Jancsville Cotton Mills 
 
 N. Y. 137, 43 N. Y. State Eep. 478. v. Ford, 83 Wis. 416 ; Carmiohael v. 
 
 '■iBagley & S. Co. v. Saianao River Brown, 97 Ga. 486. 
 
 Pulp & P. Co., 62 Hun, 618, 41 N. Y. SMurphey v. Weil, 93 Wis. 467. 
 
 State Rep. 864 ; Murphey v. Weil, 93 6 Carmichael v. Brown, 97 Ga. 486 ; 
 
 Wis. 467. Tilden v. Tilden, 8 App. Div. 99. 
 
 3 Sparks v. Brown, 46 Mo. App. ' Merrill v. Conn. F. Ins. Co., 95 Ga. 
 
 539. 604, 80 L. R. A. 835. 
 
 ''Jackson Milling Co. v. Chandos, 
 
280 E0LES OF EVIDENCE. 
 
 used in a contract of employment providing for its annulment 
 in case of incompatibility;^ and the letters "F. C," which 
 are technical abbreviations used in the wool trade ;^ and the 
 meaning of the words " net earnings " and " profits," as con- 
 tained in an agreement of copartnership between a former 
 employer and employee;' and to show the real agreement of 
 the parties to a written contract for the purchase of a desig- 
 nated number of "cords of wood," the length of which is not 
 stated therein;* and to show that the words "excavated and 
 prepared," in a contract requiring plaintiff to furnish the ma- 
 terials for and build in a good and substantial manner upon a 
 road-bed, do not include ballasting/ 
 
 § 9. In construction of will. — In the construction of a 
 will, conversations as to the intention, or even written memo- 
 randa, cannot be resorted to for the purpose of sustaining a 
 will which is apparently against the provision of a statute, 
 much less to destroy a will which upon its face is not in con- 
 travention of an}^ statute. It is a cardinal principle in the 
 construction of the terms of a will that the intention of the 
 testator must be gathered from the will itself, parol proof 
 being only permissible to show the condition of the estate and 
 the surroundings of the testator. In the case of O'Hara' 
 there was never any question of construction. E^one was 
 ever raised and none considered ; and so the parol evidence re- 
 ceived was not admitted or acted upon in the construction of 
 that will." Where the description of the devisee or thing de- 
 vised is true in part, but not true in every particular, oral 
 evidence is admissible to show the person or thing intended, 
 provided there be enough on the face of the will to justify 
 the application of the evidence.* Thus, an error in a Christian 
 
 iGray v. Shephard, 147 N. Y. 177, 5 Miller-Clayton Electric Co. v. Mc- 
 
 69 N. Y. State Rep. 530. Keesporfc & W. R Co., 179 Pa. St. 
 
 ' 2 New England Dressed Meat & W. 350. 
 
 Co. V. Standard Worsted Co., 165 695N. Y. 408. 
 
 Mass. 328. 'Matter of Keleman, 136 N. Y. 73, 
 
 3 Sydner v. Seaneu, 2 App. Div. 258. 86 N. Y. State Rep. 390. 
 
 4 Maynard v. Render, 95 Ga. 652 ; 6 Miller v. Traverse, 8 Bing. 248. 
 Aimrie v, Archibald, 25 Can. S. C. 
 
 868. 
 
PAEOL EVIDENCE CONCERNING WRITINGS. 281 
 
 or a surname may be proved. Where a devise is to "J. H., 
 second son of T. H.," but in fact J. H. was the third son, evi- 
 dence of the testator's family, and of other circumstances, 
 may be admitted to show whether he had mistaken the name 
 or description.^ As a general rule, all facts relating to the- 
 subject of the devise, such as that it was not in the posses- 
 sion of the testator, the mode of acquiring it, the local situa- 
 tion and the distribution of the property, are admissible to aid 
 in ascertaining what is meant by the words used in the will.^' 
 So by " my nephew J. G.," testator's wife's nephew may be 
 shown to be meant, though the testator also had a nephew J. G. 
 "Where the ambiguity is patent or apparent on the face of 
 the instrument, oral evidence is not admissible to explain such 
 ambiguity. Thus, where a blank is left for the devisee's nam© 
 in a will, oral evidence cannot be admitted to show whose 
 name in the will was intended to be inserted.' But where 
 there is a blank for the Christian name only, oral evidence 
 was admitted to prove the individual intended.* Where a 
 will mentioned George, the son of George Gord, and alsO' 
 George, the son of John Gord, a bequest to " George, the son 
 of Gord," was explained by proof of the declarations of the 
 testator to mean George, the son of George Gord.* Where a 
 testator devised "all his farm called Trogues Farm," it was 
 held that it might be shown of what parcels the farm con- 
 sisted.^ Where a lease professed to demise premises and a 
 yard, extrinsic evidence may be admitted to rebut the pre- 
 sumption that a cellar under the yard was also intended to 
 pass.' 
 
 IX. PATENT AMBIGUITIES. 
 
 It is not admissible to explain a patent ambiguity or an 
 ambiguity which appears on the face of an instrument and 
 show that something is omitted which must be added before 
 
 1 Barclay v. Pursley, 110 Pa. St. 13; Rollins v. Pueblo County Com'rs, 15. 
 
 Wilbur V. Stoepel, 88 Mich. 344. Colo. 103. 
 
 ^Wigram on luterp. Wills, 79. ■? Taylor v. Moore, 63 Vt 60; Still- 
 
 3 Webster v. Atkinson, 4 N. H. 31. well v. St. Louis & H. R. Co., 39 Mc 
 
 4 Price V. Page, 4 Ves. 680. App. 221 ; Tenney v. Abraham, 43 La. 
 
 5 Gord V. Needs, 3 M. & W. 129. Ann. 340. 
 
 6 Wills V. Leverich, 30 Greg. 168; 
 
282 ■ EULES OF EVIDENCE. 
 
 the meaning of the parties can be ascertained.^ Thus where 
 a. contract in writing stated "I hereby agree to take 60,000 
 lbs. of sugar of B., and pay him therefor six per pound," it 
 ■contains patent ambiguity, and parol evidence is not admis- 
 sible to show that six cents was the price agreed on ; conse- 
 quently no action could be maintained upon the contract;^ 
 and generally when the ambiguity arises from the phraseology 
 of the contract, and not from extrinsic matters, the ambiguity 
 is patent and cannot be cured by parol evidence.' 
 
 X. CUSTOM OE USiGK. 
 
 §10. In general. — -When the existence of any custom is 
 in question, every fact is deemed to be relevant which shows 
 how, in particular instances, the custom w^as understood and 
 acted upon by the parties then interested.* Evidence of usage 
 -or custom is not admissible without an allegation in the plead- 
 ings or the existence of the custom.* Every legal contract is 
 to be interpreted in accordance with the intention of the 
 parties making it. And usage, when it is reasonable, uni- 
 form, well settled, not in opposition to fixed rules of law, not 
 in contradiction of the express ter^ns of the contract, is 
 ■deemed to form a part of the contract and to enter into the 
 intention of the parties, when it is so far established, and so 
 far known to the parties, that it must be supposed that their 
 -contract was made in reference to it.* And evidence is always 
 admissible to explain the meaning which usage has given to 
 words or terms, as used in any particular trade or business, 
 as a means of enabling the court to declare what the language 
 of the contract did actually express to the parties.' Parties 
 are held to contract in reference to the law of the state in 
 which they reside. For all men, being bound to know the 
 law, are presumed, beyond dispute, to contract in reference to 
 it. And so they are presumed to contract in reference to the 
 
 1 Corker v. Corker, 87 Cal. 643; s Morowske v. Rohrig, 53 N. Y. 
 Osgood V. Bander, 83 Iowa, 171. State Rep. 220. 
 
 2 Colt V. Cone, 107 Mass. 285. « Walls et al. v. Bailey, 49 N. Y. 
 
 3 Ed wards v. Clark, 83 Mich. 246. 464. 
 
 iHotohkiss V. Artisans' Bank, 43 'Newhall v. Appleton et al., 114 
 Barb. 517 ; Knowles v. Dow, 33 N. H. N. Y. 140 ; 33 N. Y. State Rep. 670. 
 (3 Fost.) 403; Webber v. Kingsland, 
 8 Bosw. 415. 
 
PAEOL EVIDENCE- CONCERNING WEITINGS. \ 283 
 
 usage of the particular place or trade in or as to which they 
 enter into agreement. When it is so far established, and so 
 far known to the parties, that it must be supposed that their 
 contract was made in reference to it, evidence of usage is re- 
 ceived as is any other parol evidence where a writing is under 
 consideration. It is to apply the written contract to the sub- 
 ject-matter, to explain expressions used in a particular sense, 
 by particular persons, as to particular subjects, and to give 
 effect to language in a contract as it was understood by those 
 who made use of it. Custom is that length of usage which 
 has become law. It is a usage which has acquired the force 
 of law, and ignorance of the law will not excuse. A general 
 usage is the common-law itself, or a part of it. Thus the al- 
 lowance of days of grace on a bill or note is a custom of mer- 
 chants ; but it is established by a usage so general, so long 
 continued, so pervading the whole commercial world, that it 
 is universally understood to enter into every bill or note of a 
 mercantile character, and to form so completely a part of 
 the contract that the bill or note does not become due, in fact 
 or in law, on the day mentioned on its face, but on the last 
 day of grace. All trades have their usages ; and when a con- 
 tract is made with a man about the business of his craft, it is 
 framed on the basis of its usage, which becomes part of it, 
 except when its place is occupied by particular stipulations. 
 This means only this: That the facts and circumstances of the 
 case are such that the usage is of so long continuance, so well 
 established, so notorious, so universal and so reasonable in 
 itself, as that the presumption is violent that the parties con- 
 tracted with reference to it, and made it a part of their agree- 
 ment. 
 
 §11. Illustrations. — (a) Customary rights and incidents 
 universally attaching to the subject-matter of the contract in 
 the place and the neighborhood where the contract was made 
 are impliedly annexed to the written language and terms of 
 the contract, unless the custom is particularly and expressly 
 excluded.^ Parol evidence of custom and usage consequently 
 is always admissible to enable the court to arrive at the real 
 meaning of the parties, who are naturally presumed to have 
 contracted in conformity with the known and established 
 
 1 Scott V. Hartley, 136 Ind. 339. 
 
284 EULES OF EVIDENCE. 
 
 usage.^ Thus, the custom of the country in regard to the 
 claims of an outgoing tenant of a farm will prevail, although 
 there is a lease under seal regulating the terms of the holding, 
 but not containing stipulations as to the terras of quitting, 
 which can exclude the custom.^ 
 
 (5) The customary right of a tenant to the away-going crop, 
 to compensate for work, seed and materials employed in ma- 
 nuring, tilling and sowing the land, also the customary right 
 of a heriot on the death of a tenant for life, and all customs 
 and usages respecting the cultivation of the soil and the mode 
 of husbandry, will impliedly prevail, if the lease is silent re- 
 specting them ; and parol evidence is, consequently, admissible 
 to superadd the usage and customary right to the contract 
 between the parties ; such right and usage being recognized 
 by law as incident to the subject-matter of the contract, and 
 consequential upon the taking of the land. 
 
 (e) Omissions may be supplied by the introduction of the 
 custom, but the custom cannot prevail over and nullify the 
 express provisions and stipulations of the contract.' 
 
 {d) In all contracts as to the subject-matter of which known 
 usages prevail, parties are bound to proceed with the tacit 
 assumption of those usages; they commonly reduce into writ- 
 ing the special particulars of their agreement, but omit to 
 
PAROL EVIDENCE CONCERNING WEITINGS. 285 
 
 (/) Usage is admissible for the purpose of annexing inci- 
 dents to the contract in matters upon which the contract .is 
 silent, but not to vary or contradict, either expressly -or by 
 implication, the express terms of the written instrument.^ 
 
 ((/) The purpose of evidence of custom is to ascertain the 
 intention of the parties where it cannot be ascertained by the 
 terms of the contract.^ Thus, a general custom of saw-mills 
 to keep the slabs as part compensation for sawing the logs is 
 provable.' So is parol evidence of trade usage ascertaining 
 the duties of a traveling salesman, where there is a written 
 contract not defining his duties.* So is evidence of the gen- 
 eral manner of business of an agent to loan money ;' and of a 
 custom to sell for cash.* And so is evidence of the habits of 
 insurance agents in respect to performing the details of the 
 business, and of the employment of clerks and of their duties.' 
 
 (A) A church may show it was not its custom to pay trustees 
 for services;" and a boom company may show that it was 
 their custom to deliver logs of a certain size to different mills 
 than the one named in the contract, when such logs have been 
 forced under the boom.' 
 
 {i) The usual, rates charged for premiums on the insurance 
 of other property similar to that described in the policy may 
 be shown." It may be shown that machinery used in a paper- 
 mill is of the ordinary and usual kind." The habit of mules 
 for stumbling may be shown.'^ 
 
 {j) The habits of a person killed, in regard to being sober 
 and industrious, and his character as a workman, are competent 
 to show the value of his services, and the loss to his estate 
 caused by his death.'' 
 
 lO'Donohue v. Leggett, 134 N. Y. 'Arff. v. State F. Ins. Co., 34 N. Y. 
 
 40, 29 N. Y. State Rep. 983 ; De Witt State Rep. 366, 125 N. Y. 57. 
 
 y. Perry, 134 U. S. 306. 8 cicotte v. St. Anne's Church, 60 
 
 2 Johnson v. Burns, 39 W. Va. 658; Mich. 552. 
 
 Elerick ' v. Reid, 54 Kan. 579 ; Voll- 9 Wausau Boom Co. v. Dunbar, 75 
 
 rath V. Crow, 9 Wash. 374. Wis. 133. 
 
 ' Hewitt V. John Week Lumber Co., '" Deveraux v. Sun F. Office, 51 Hun, 
 
 77 Wis. 548. 147, 20 N. Y. State Rep. 584. 
 
 4 Hamilton v. Moore, 94 Ga. 707; I'Sheperd v. Hill, 151 Mass. 340. 
 
 Brown v. Baldwin & G. Co., 37 N. Y. '2 Patterson v. South & N. A. R. Co., 
 
 State Rep. 363. 89 Ala. 318. 
 
 6 Stein V. Swesen, 46 Minn. 360. " Van Gent v. Chicago, M. & St. P. 
 
 « Tyler v. O'Reilly, 59 Hun, 618, 36 R. Co., 80 Iowa, 526 ; Floytrup v. Bos- 
 
 N. Y. State Rep. 106; Pacific Postal ton & M. R. Co., 163 Mass. 152. 
 Tel. Co. V. Fleischner, 66 Fed. Rep. 
 899. 
 
286 EULES OF EVIDENCE. 
 
 {Jc) What was usually and habitually done in the running of 
 trains may be proved to rebut a claim that an employee was 
 negligent in running a train in violation of rules;' and the 
 usual custom of railroads in regard to turn-tables;^ and as to 
 the mode of shipment of baled cotton.' 
 
 (l) Evidence of general custom, or of the amount of care 
 exercised by men in general in similar circumstances, is com- 
 petent upon the question whether or not a person exercised 
 ordinary care in the custody of bailment.* So evidence of a 
 general custom for people to cross railroad trades at the 
 point where the assured was killed is competent as tending to 
 show whether he was violating the law or rules of a company 
 in crossing the track.* 
 
 (m) It is competent to show a custom or habit for switch- 
 men to go between the cars under like circumstances to those 
 under which the plaintiii was injured;* or for brakemen to 
 get on coal-cars over the side.'' 
 
 (?t) It is competent to show that other business men, under 
 the same circumstances, acted as the defendant acted.* 
 
 (o) A contractor may show a general custom among con- 
 tractors to charge a profit upon the amount paid by them to 
 workmen when the contract is by the day." 
 
 (p) Evidence of the usual and ordinary distance for the 
 erection of signals from a low bridge is competent on the 
 question whether a certain signal was too near a bridge to 
 operate as a sufficient warning, in an action by a brakeraan 
 for personal injuries from being struck by a low bridge in 
 which the warning signal was but fifty-one feet from the 
 bridge.'" 
 
 iHunn V. Michigan C. E. Co., 78 5 Duncan v. Preferred Mutual Ace. 
 
 Mich. 513; Daley v. American Print- Ass'n, 129 N. Y. 623, 36 N. Y. Stale 
 
 ing Co., 152 Mass. 581. Rep. 928. 
 
 2Bridger v. Ashville & S. R. Co., 27 OHisory v. Richmond & D. R Co., 
 
 a C. 456, 13 Am. St Rep. 653. 91 Ala. 514. 
 
 3 Louisville & N. R. Co. v. Man- ' Coats t. Boston & M. R. Co., 153 
 
 chest;er Mills, 88 Tenn. 653 ; McKay v. Mass. 297. 
 
 New York Central & Hudson River 8 Eand v. Johns, 29 Tex. App. 165 ; 
 
 R. Co., 50 Hun, 563, 20 N. Y. State Holland v. Tenn. Coal & J. R Co., 91 
 
 Rep. 816. Ala.. 444. 
 
 * Armstrong v. Chicago, M. & St. 9 McDonnell v. Ford, 87 Mich. 198. 
 
 P. R. Co., 45 Minn. 85. " Wallace v. Central Vermont K. ' 
 
PAROL EVIDENCE CONCEENING WEITINGS. 28T 
 
 (2') The rules of a railroad company as to the management 
 of a switch, and of the usual manner of running trains upon 
 a certain track, are admissible.^ 
 
 {r) No proof of custom can be made to the contrary of the 
 stipulations of a contract, nor to contravene the legal con- 
 struction implied from a written contract, silent as to the 
 time of performance, that the work is to be done and mate- 
 rials furnished in a reasonable time.^ 
 
 (s) Custom or usage may be proved, not only to explain the 
 meaning of terms having a peculiar and technical meaning, 
 but also to supply evidence of the intention of the parties to 
 a contract.^ Thus proof of a custom is admissible to show 
 the method intended by the parties to a contract for the sal& 
 of logs to be followed in measuring the logs, where the con- 
 tract does not express the mode, and to show the amount al- 
 lowed on logs sold according to " board measure" for hollow 
 or pickey logs.* 
 
 § 12. Qualities of usage. — ^In order to amount to a binding 
 usage of a trade or business, it must be shown to be so well es- 
 tablished, so general, so uniform and notorious, that it may 
 reasonably be presumed that the parties knew and contracted 
 in reference to it.' It must be shown that it is established 
 and not merely casual, uniform and not varying, general and 
 not personal; or that it was known to the parties when the- 
 contract was entered into.' It is sufficient if it be shown to 
 be so well known and acquiesced in that it may reasonably be 
 presumed to have been an ingredient imported into the con- 
 tract by the parties ; '' and this is the case only when the usage 
 is certain, reasonable and universally acquiesced in, so that 
 every one engaged in the trade knows, or might have known,, 
 of it, if he had taken the trouble to inquire. A written ex- 
 Co., 138 N. Y. 302, 53 N. Y. State ''Id.; Adamant Plaster Co. v. Na- 
 Rep. 851 ; Flanders v. Chicago, St P., tional Bank, 5 Wash. 233. 
 M. & O. R. R. Co., 51 Minn. 198. sPoye v. Leighton, 33 N. H. 71 ; 
 
 1 Chicago, M. & St. P. R. Co. v. Smith v. Floyd, 18 Barb. 893. 
 0"Sullivan, 148 111. 48. " Diiquid v. Edwards, 50 Barb. 288 ; 
 
 2 Morowske v. Rohrig, 53 N. Y. State Hursh v. North, 40 Pa. St. 241 ; Gal- 
 Rep. 220; Richmond & D. R. Co. v. lup v. Lederer, 1 Hun, 382. 
 Hissong, 97 Ala. 333 ; Shaw v. Jacobs, 7 Smith v. Gibbs, 44 N. H. 385;. 
 21 L. R. A. 440. Lewis v. Thatcher, 15 Mass. 488. 
 
 ^ Destrehan v. Louisiana Cypress 
 Lumber Co., 45 La. Ann. 87. 
 
288 EULES OF EVIDENCE. 
 
 press contract cannot be controlled or varied or contradicted 
 hy a usage or custom.' Where it is sought to establish a usage 
 of trade to control the meaning of words, it must be shown 
 that the words are used in that trade and are understood in a 
 -defined sense. And the proof must show facts that lead to 
 a conviction that they were used in that case in such sense. 
 It must be proved by the multiplication or aggregation of a 
 great number of particular instances; and these instances 
 must have a principle of unity running through them, and 
 that unity must show a certain course of business, and an es- 
 tablished understanding respecting it. The testimony of one 
 witness is not generally sufficient to establish a usage of trade ; ^ 
 but the question as to whether the evidence of one witness is 
 sufficient or not must be determined from the witness' means 
 of information.' To establish a shipping usage on a certain 
 river, the witness may state his habit and custom in shipping 
 in all boats on the river.* An isolated instance is not suffi- 
 cient to prove a custom; nor will evidence of the custom of 
 ■one person be sufficient to establish a general course of trade.' 
 
 § 13. When not necessarily general. — It is not necessary 
 that usage should be general — that is, extend over the whole 
 •country ; neither is its antiquity of any importance except to 
 show that the parties knew of it and intended to adopt it as 
 ithe law of their contract.^ The usage must be shown to be 
 certain and reasonable, and so universally acquiesced in that 
 •everybody in the particular trade knows it, or might know 
 it if he took the pains to inquire.'' If the usage exists, and it 
 is not inconsistent with the written contract, it is precisely 
 the same as if it were written in words attached to the con- 
 tract ; and it cannot be got rid of by proof of an oral agree- 
 ment to waive or vary it.' 
 
 § 14. How established. — It is not sufficient to show by a 
 witness belonging to a particular trade that he does a certain 
 
 1 De Witt V. Berry, 134 U. S. 306 ; < Berry v. Cooper, 28 Ga. 543. 
 O'Donohne v. Leggett, 134 N. Y. 40 ; ^ Burr v. Sickles, 17 Ark. 428. 
 
 39 N. Y. State Rep. 988; Conrod v. sWood v. Hicock, 3 Wend. 501; 
 
 •Fisher, 37 Mo. App. 353 ; Gage v. Bank of Utica v. Smith, 18 Johns. 
 
 Meyers, 59 Mich. 300; Scott v. Hart- 280. 
 
 ley, 126 Ind. 239. ' Foxhall v. International Land 
 
 2 Wood V. Hicock, 3 Wend. 501. Credit Co., 16 L. T. (N. S.) 687. 
 
 3 Haskins v. Warren, 115 Mass. 514 ; 8 Fawkes v. Lamb, 31 L. J. Q. B. Sa 
 
PAEOL EVIDENCE OONCEENING WRITINGS. 289 
 
 thing in"a particular way, but it must be shown that that is 
 the usual mode adopted in the trade.^ The course adopted 
 by the trade must be shown,^ and evidence of an isolated in- 
 stance is not sufficient.' It is not necessary that the witness 
 should be engaged in a particular trade or business to make 
 him competent to testify to a usage pertaining to it. It is 
 sufficient if he has acquired his knowledge by dealing with 
 those engaged in it. The witness must state what is done, 
 and how.* In all cases, in order to establish a customary 
 right, the evidence should not be less than that required to 
 establish a prescriptive right.^ In order to establish a usage 
 of a certain trade or business the testimony should come from 
 those engaged in the business or those who are familiar with 
 the existence and application of the usage.^ A usage must be 
 proved by evidence of facts and instances in which it has been 
 acted upon.' It is not necessary that there should be either 
 the antiquity, uniformity or notoriety that is essential to es- 
 tablish a custom ; it is sufficient if it is shown to be so well 
 known and so generally acquiesced in that it may rea- 
 sonably be presumed to have been imported into their con- 
 tract by the parties. The mere fact that the evidence is 
 conflicting does not settle the question, but it is for the jury 
 to say from all the evidence whether or not the usage is 
 established.^ 
 
 XI. LOCAL USAGE — NOTICE OP MITST BE SHOWIT. 
 
 It would seem that, upon principle, for a party to be bound 
 by a local usage, or a usage of a particular trade or profession, 
 he must be shown to have knowledge or notice of its exist- 
 ence. For upon what basis is it that a contract is held to be 
 entered into with reference to or in conformity with an exist- 
 ing usage? Usage is engrafted upon a contract, or invoked to 
 
 1 Geary v. Meagher, 33 Ala. 630 ; 5 gmith v. Floyd, 18 Barb. 523. 
 Pfiel V. Kemper, 3 Wis. 315. ^ Sulith v. Wright, 56 Ala. 417. 
 
 2 Austin V. Williams, 3 Ohio, 64. i Mills v. Hallock, 8 Edw. Ch. 653 ; 
 
 3 Burr V. Sickle, 17 Ark. 428. Chenery v. Goodrich, 106 Mass. 566. 
 « Griffin v. Rice, 1 Hilt. 184 ; Com- 8 Upton v. Starbridge Cotton Mills, 
 
 mercial Bank of Pennsylvania v. Ill Mass. 446. 
 Union Bank, 19 Barb. 393; Cheap- 
 aide Bank v. Swain, 29 Md. 483. 
 19 
 
290 EDLES OF EVIDENCE. 
 
 give it a meaning, on the assumption that the parties con- 
 tracted in reference to it ; that is to say, that it was their in- 
 tention that it should be a part of their contract, whenever 
 their contract in that regard was silent or obscure. But could 
 intention run in that way unless there was knowledge of the 
 way to guide it? No usage is admissible to influence the con- 
 struction of a contract, unless it appears that it be so well 
 settled, so uniformly acted upon and so long continued as to 
 raise a fair presumption that it was known to both contract- 
 ing parties, and that they contracted in reference thereto. 
 There must be some proof that the contract had reference to 
 it, or proof arising out of the position of the parties, their 
 knowledge of the course of business, their knowledge of 
 the usage, or other circumstances from which it may be in- 
 ferred or presumed that they had reference to it. , Frequent 
 are the expressions in the later authorities that, where the 
 usage is of a particular trade or locality, it must appear that 
 it was known to a party before he is bound by it, so as to 
 make it a part of his contract.* In Higgins v. Moore '^ it is 
 said : " The usage being local, its existence must be clearly 
 proved to have been known to the plaintiff at the time." In 
 Esterly v. Cole ' it is said that, where there is a general usage 
 in any particular trade or branch of business to charge or 
 allow interest, parties having knowledge of the usage are pre- 
 sumed to contract in reference to it. And again, in the same 
 case, that if proof of the existence of the usage had been fol- 
 lowed with proof that defendant had knowledge thereof, the 
 case would have been made out. In Dawson v. Kittle * it is 
 said that the usage must be known to the party at the time 
 of contracting, or he must be presumed to have known or as- 
 sented to it. In "Wheeler v. E^ewbould ' it is expressly held 
 that proof of a local usage can never be received to vary the 
 construction which the law would otherwise give to a con- 
 tract, unless it is clearly proven that its existence was known 
 to the parties, and that their contract was made in reference 
 to its terms. In Kirchner v. Venus " it was held that evidence 
 of the usage of a particular place is admitted only on the 
 
 1 Bradley v. Wheeler, 44 N. Y. 500. < 4 Hill, 107. 
 
 2 34 N. Y. 435. 5 5 Duer, 39. 
 
 3 3 N. Y. 50a 6 12 Moore, Pnv. Uoun. Cases, 361. 
 
PAEOL EVIDENCE CONOEENING WETTINGS. 291 
 
 ground that the parties who contracted are both cognizant of 
 the usage, and must be presumed to have made their agree- 
 ment in reference to it. In Caldwell v. Dawson ' it is held 
 that it must appear that the party had actual knowledge of 
 the usage, or the evidence must be such as to clearly author- 
 ize the presumption that he had knowledge of it. And fur- 
 ther, that the fact that one party had knowledge of the usage, 
 and supposed that it would enter into the contract, is not suffi- 
 cient. In Barnard v. Kellogg^ it is said that usage is used as 
 a mode of interpretation, on the theory that the parties knew 
 of its existence and contracted with reference to it ; and that 
 the contract of the parties in that case showed clearly that 
 they did not know of the custom, and could not, therefore, 
 have dealt with reference to it. Not only the existence of 
 such usage, but whether knowledge of it exists in any particu- 
 lar case, is a question of fact for the jury. Of course, then it 
 is to be established or negatived in all its essentials, as well as 
 to knowledge as to any other, by the same character and 
 weight of evidence as are necessary to maintain other allega- 
 tions of fact. It may be established by presumptive as well 
 as by direct evidence. Nor, on the other hand, is it exempt 
 from the difficulty that a presumption may not prevail against 
 direct evidence to the contrary of it. The jury may presume, 
 from all the circumstances of the case, that knowledge or 
 notice existed. We have seen that there are usages which 
 have become so general and so universally received and acted 
 upon as that they have become a part of the common law, and 
 no one can be heard to profess ignorance of them. But it is 
 equally true that there are usages so restricted as to locality, or 
 trade, or business, as that ignorance of them is a valid reason 
 why a party may not be held to have contracted in reference 
 to them. In Walls et al. v. Bailey ' it is held that parties are 
 presumed to contract in reference to a uniform, continuous 
 and well-settled usage pertaining to the matters as to which 
 they enter into agreement, where such usage is not in opposi- 
 tion to well-settled principles of law and is not unreasonable. 
 But where the usage is of a particular trade or locality, such 
 presumption is not conclusive, and may be rebutted by proof 
 
 1 4 Mete. 121, a 49 N. Y. 464 
 
 2 10 Wall. 383. 
 
292 EULES OF EVIDENCE. 
 
 upon the part of one of the contracting parties that he was 
 ignorant of such usage. 
 
 In short, the general rule is that a mere local usage is not 
 binding upon a party, unless he has notice or knowledge of its 
 existence at the time when the contract was entered into, and 
 the burden of establishing knowledge is on the party setting 
 it up.' The usage or custom of a particular port, in a partic- 
 ular trade, is not such a usage or custom as will limit, control 
 or qualify the language of a contract.^ In New York local 
 usage is not admissible to control the rules of law respecting 
 a particular trade.' But a shipper of goods is chargeable with 
 notice of an established and well-known usage existing in a 
 particular trade. 
 
 XII. WHEN CUSTOM KOT VALID. 
 
 In order to be valid and binding it is necessary that a usage 
 should be reasonable. Thus the following usages have been 
 held bad as against the policy of the law : For the master of a 
 vessel to sell the cargo of a stranded vessel without necessity;' 
 authorizing a person to charge for services not rendered, or 
 material never furnished ; ^ exempting carriers from liability 
 for negligence, or favoring the violation of a statute;* or 
 for a bank not to correct mistakes in counting money, unless 
 it is discovered before the party leaves the bank. 
 
 XIII. MEANING OF "WOEDS INTBEPEETED BY USAGE. 
 
 In a particular trade or business, words having a well under- 
 stood meaning in ordinary transactions have often a technical 
 sense, entirely different from their ordinary signification; so 
 that if in that class of contracts the words were to be given 
 their ordinary interpretation, the intention of the parties 
 would be wholly subverted. In such cases evidence of usage 
 is admissible to explain the local, technical or peculiar mean- 
 ing in the trade or business to which the contract relates, pro- 
 
 1 Albatross V. Wayne, 16 Ohio, 513 ; 3 Higglns v. Moore, 34 N. Y. 417; 
 Flynn v. Murphy, 3 E. D. Smith (N. Bissell v. Campbell, 54 id. 353. 
 
 Y.), 378; Barnard v. Kellogg, 10 < stillman v. Hurd, 10 Tex. 107. 
 "Wall. 383. 5 Kendall v. Eussell, 5 Dana (Ky.), 
 
 2 Adams v. Insurance Co., 76 Pa. 50. 
 
 St. 411 ; Cope v. Dodd, 13 id. 33. * Dunham v. Dey, 13 Johns. 44. 
 
PAROL EVIDENCE CONCERNING WRITINGS. 293 
 
 Tided sufficient is proved to raise a presumption that the 
 parties intended to use the vrords in their technical or partic- 
 ular sense. In such cases it is proper to ask a witness whether 
 there is any generally understood meaning of certain words 
 among persons engaged in the particular trade or business 
 under consideration;' and such a question must be answered 
 by a witness before he is asked what he understood by the 
 written contract to which it is meant to apply the usage. Thus 
 usage has been admitted to show Avhat was meant by the 
 words " ream," ^ " all faults," ' " fur," * " roots," * or " building." 
 So also to show what is meant by the words " weeks," 
 " months," etc., in a certain class of contracts.^ So, too, where 
 certain work, as " plastering a house," or " laying a walk," etc., 
 is to be done at so much per square yard, evidence of the usage 
 of plasterers, in the locality where the contract was made, is 
 admissible to determine whether, in ascertaining the quantity, 
 the whole sides of the house should be measured as solid, or 
 whether allowance should be made for openings of doors and 
 windows.^ And in the same manner the meaning of certain 
 phrases is ascertained ; thus, " coppered-ship," " a clear bill 
 of lading,"' "store fixtures," "immediate delivery,"' "sea- 
 littev/' " " a full and complete cargo of sugar." Parol evidence 
 was admitted to show that in a contract for a certain number 
 of " barrels " of petroleum at so much a gallon, the word 
 " barrel " means a vessel of a certain capacity, and not the 
 statutory measure of quantity. And that for this purpose 
 evidence that petroleum oil is often sold in barrels, and that 
 barrels are usually of such certain capacity, is competent." 
 
 XIV. ADDING INCIDENT TO CONTRACT. 
 
 Usage is admissible to add incidents to the contract, — that 
 is, to show what things are customarily treated as incidental 
 and accessorial to the principal thing which is the subject of 
 
 1 Robertson v. Jackson, 3 C. B. 413. 6 Hinton v. Looke^-^^ill, 437. 
 
 2Ganson v. Madigan, 15 "Wis. 144. ^ Walls v. Bailey, 49 N. Y. 467. 
 
 3 Corter v. Coal Co., 77 Pa. St. 386. « Creery v. Holly, 14 Wend. 36. 
 
 * Astor V. Union Insurance Co., 7 » Nelson v. Smith, 36 N. J. L. 148. 
 
 Cow. 303. w Sleght v. Hartshorne, 3 Johns. 
 
 sCoit V. Commercial Ins. Co., 7 561. 
 
 Johns. 385. 'i Schiller v. Stevens, 100 Mass. 518. 
 
294 ErLES OF EVIDENCE. 
 
 the contract, or to which it relates, — which are not inconsist- 
 ent therewith.' This is upon the ground that the parties 
 did not mean to express the whole contract in writing, but 
 made it in reference to usage, which becomes a part of it.' 
 Thus a note is made payable thirty days from date, but usage 
 steps in and postpones the payment for three days. So, 
 too, it may be shown by parol that it is the custom of 
 persons employed in particular trades, under a general con- 
 tract of hiring, to have certain holidays in the year to them- 
 selves. Prima facie, every contract is to be understood as 
 containing, in some sort, an implied reference to the general 
 law ; but the general rule is clear, that no extrinsic evidence 
 of usage can be received to vary, add to or contradict the 
 plain sense of the contract, when once properly ascertained.' 
 The application of the rule depends so much upon peculiar 
 forms of expression, and terms in the contract, which may 
 strike different minds in different ways, that judges disagree 
 on this point ; for the presumption that parties contracted in 
 reference to the general law must be overcome before the 
 usage can be applied. 
 
 1 Cooper V. Kane, 19 Wend. 386; ' xjnited States v. Arredondo, 6 Pet 
 Dixon V. Dunham, 13 IlL 334; Leach 715 ; Palmer v. Kane, 5 Wis. 265. 
 V. Beardslee, 23 Conn. 404. s Parsons v. Miller, 15 Wend. 562. 
 
CHAPTER X. 
 
 EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE. 
 
 PAROL EVIDENCE CONCERNING WRIT- 
 INGS. 
 
 § 1. Writings not signed by both 
 parties. 
 
 2. As to the existence, identity or 
 
 validity of contract. 
 
 3. To show that writing purport- 
 
 ing to be a contract was not 
 intended as sucli. 
 
 4. Surrounding circumstances. 
 
 5. When consideration of written 
 
 contract may be shown to be 
 different. 
 
 6. Receipt, etc. 
 
 7. Parol evidence to complete an 
 
 entire agreement of which a 
 writing is only a part 
 
 8. Illustrations. 
 
 9. As to bills and notes. 
 
 10. To show that writing appar- 
 
 ently absolute is not. 
 
 11. Statutes of fraud — Admissibil- 
 
 ity of parol evidence. 
 IS. Bills of lading. 
 
 13. Subsequent changes of con- 
 
 tract. 
 
 14. Bills of sale — Parol evidence 
 
 to vary. 
 
 15. Written assignments — Parol 
 
 evidence as to. 
 
 16. True part and character of 
 
 party. 
 
 17. Written leases — Parol evi- 
 
 dence as to. 
 
 18. Collateral contract by parol. 
 
 19. Illustrations. 
 
 20. To show a deed to be a mort- 
 
 gage. 
 
 21. Conditions upon which a writ- 
 
 ing was delivered. 
 
 22. Illustrations. 
 
 28. Immovables, inscription, etc. 
 24. Warranty. 
 35. Mistake. 
 
 26. Fraud — Parol evidence of. 
 
 27. When written instrument may 
 
 be contradicted. 
 
 PAROL EVIDENCE CONCEENING WEITINGS. 
 
 § 1. Writings not signed by both parties. — A writing 
 signed by one party to a contract does not preclude him from 
 showing by parol what the undertaking of the party not sign- 
 ing was.' Thus a bill of sale of goods signed by the vendee 
 alone, stating the number of packages and terms of sale, is 
 not the contract of both parties, but only of the vendee ; and 
 parol evidence is admissible in an action for the purchase-price 
 to show that the sale was by sample, and that the seller war- 
 ranted the goods to be like the sample, and that some of the 
 
 iTocci V. Arata, 35 N. Y. State Rep. 42; Dana v. Taylor, 150 Mass. 25; 
 Pearce v. Gardner (1897), 1 Q. B. 688. 
 
296 EULES OF EVIDENCE. 
 
 goods did not comply with the warranty.^ Evidence of a 
 parol agreement by a landlord to make certain changes in the 
 premises, and to accept a less amount of rent vs^hile the changes 
 were in progress, is admissible though the agreement is made 
 contemporaneous with a written leased It seems that evi- 
 dence is admissible of a parol agreement guarantying the 
 quantity of land embraced by a written contract of a sale or 
 a deed of conveyance, unless the written agreement embraces 
 the whole contract;' and to prove an agreement in which a 
 written instrument originated and of which it constituted a 
 part;* and to establish a contemporaneous oral agreement 
 which induced the execution of a written contract, though it 
 may vary, change or reform the instrument.' But where a 
 written offer, containing expressly or by implication all the 
 engagements appropriate and necessary to the agreement, is 
 signed by one party and accepted by the other, it constitutes 
 such a complete contract between them that oral evidence is 
 inadmissible to add to its terms; the general rule being that, 
 if a paper appear on its face to be a complete contract, then, 
 in the absence of fraud, accident or mistake, parol evidence 
 is inadmissible to enlarge its terms, — the conclusive presump- 
 tion of law being that such paper embodies the entire agree- 
 ment of the parties. And whether or not a writing appears 
 upon its face to be the complete expression of the agreement 
 of the parties is for determination by the court.^ 
 
 § 2. As to the existence, identity or validity of contract. 
 Conversations and negotiations preliminary to a written agree- 
 ment, although merged in it, are admissible in evidence, not 
 for the purpose of explaining its terms, but to throw light 
 upon the question of its execution,' and to show that a writing 
 
 1 Curtis V. Soltan, 34 N. Y. State 191 ; Condit v. Coudrey, 133 N. Y. 
 Rep. 767 ; Routlidge v. Worthington 463 : 34 N. Y. State Rep. 107. 
 
 Co., 119 N. Y. 592; 30 N. Y. State SMcGree v. Craven, 106 N. C. 351. 
 
 Rep. 195 ; Smith v. Coleman, 77 Wis. ■• McAteer v. McAteer, 31 S. C. 313. 
 
 343 ; Hess v. Board of Education, 33 5 Furguson v. Rafferty, 128 Pa. St. 
 
 111. App. 440; Work v. Beach, 53 837. 
 
 Hun, 7 ; 37 N. Y. State Rep. 547 ; ^ Harrison v. McCormick, 89 Cal. 
 Ferguson v. Baker, 26 N. Y. State 327 ; 23 Am. St. Rep. 469 ; The Lam- 
 Rep. 636 ; 116 N. Y. 257. son Con. S. S. Co. v. Hartong 46 N. Y. 
 
 2 Sire V. Rumbold, 39 N. Y. State State Rep. 191; Tuttle v. Burgett, 30 
 Rep. 35 ; Cleuigan v. McFarland, 84 L. R. A. 314, 53 Ohio St. 498. 
 
 id. 624 ; Roberts v. Bonaparte, 78 Md. ' Wilbur v. Stoepel, 83 Mich. 344. 
 
EXCLUf3I0N OF ORAL BY DOCUMENTARY EVIDENCE. 297 
 
 never toot effect as a contract ; ^ or that the person whose 
 name is subscribed to a contract never intended to sign it, bnt 
 supposed he was signing one previously drawn ;- and evidence 
 of a contemporaneous oral agreement is admissible on the 
 question of usury in a loan, although a writing signed by the 
 borrower on the same subject is proved.' 
 
 § 3. To show that a writing purporting to be a contract 
 was not intended as such.— Parol evidence may be given to 
 show that a writing purporting to be a contract was not in 
 fact intended by the parties as such. Such evidence is not re- 
 ceived to change the written contract by parol, but to estab- 
 lish that such contract had no force, efBcacy or effect. This 
 is in avoidance of the instrument and not to change it, and is 
 as competent as it would be to show that a written instrument 
 was obtained fraudulently, by duress, or in an improper man- 
 ner. Such evidence does not come within the ordinary rule 
 of introducing parol evidence to contradict written testimony, 
 but tends to explain the circumstances under which an instru- 
 ment was executed and delivered, or to show that it was can- 
 celed or surrendered.* So where one of the parties to an ac- 
 tion introduces in evidence an order from a third person to 
 the other party to the action for certain property, and a bill 
 from such party to such third person of the property, sent 
 after the property had been delivered, to show a sale, the party 
 against whom the evidence is introduced may show by his 
 own testimony or that of his agent that the bill was sent 
 merely as. a memorandum of the value of the lumber, and to 
 notify the person for what amount they would be required to 
 account. It is competent to show the purpose for which the 
 bill was sent, to explain its real meaning and significance. 
 Even if the bill was made out concurrently with the contract, 
 and was part of the res gestae, it is not a writing having such 
 a complete and decisive character as would render parol evi- 
 dence inadmissible.^ 
 
 § 4. Surrounding circumstances. — The rule that parol 
 evidence is admissible to explain and apply a writing, where 
 
 1 Barrett v. Davis, 104 Mo. 549 ; Mc- » Crosby v. The D. & H. C. Co., 128 
 Geragle v. Broemel, 53 N. J. L. 53. N. Y. 641, 40 N. Y. State Rep. 85 ; 
 
 2 Cumraings v. Ross, 90 Cal. C8. Great Western Tel. Co. v. Loewenthal, 
 
 3 Stein V. Swensen, 46 Minn. 360. 154 111. 361 ; Johnson v. Smith, 165 
 * Grierson v. Mason, 60 N. Y. 394 ; Pa. St. 195 ; Martin v. Fridenberg, 
 
 Michels v. Olsnstead, 157 U. S. 198; 169 id. 447. 
 Dreyfus v. Union Nat. Bank, 164 III. 
 83; Black v. Sharkey, 104 Cal. 379. 
 
298 EULES OF EVIDENCE. 
 
 it does not contradict or vary it, is universal in its application, 
 under the rule that a writing may be read in the light of 
 surrounding circumstances, in order that the true intent and 
 meaning of the parties may be arrived at.^ The rule that 
 contemporaneous parol evidence is inadmissible to contradict 
 or vary the terras of a valid written instrument is limited ia 
 its application to the language of the instrument, and does 
 not exclude the light of extrinsic circumstances.^ The law 
 does not deny to the reader the same light and information 
 that the writer enjoyed ; he may acquaint himself with the 
 persons and circumstances that are the subjects of the allu- 
 sions and statements in the written agreement, and is entitled 
 to place himself in the same situation as the party who made 
 the contract, to view the circumstances as he viewed them, 
 and so judge of the meaning of the words and of the correct 
 application of the language to the things described. The 
 judgment of the court must be simply declaratory of what is 
 in the instrument ; it has to ascertain, not what the party in- 
 tended, but what is the meaning of the words he has used. 
 Thus, to explain a patent ambiguity, parol evidence is never 
 admissible, whatever doubt may exist as to the intention of the 
 parties. 
 
 For the purpose of the construction of the instrument, no 
 words can be added or taken from its provisions; but where 
 the words used, in their application to an instrument of which 
 they are a part, are not entirely intelligible, parol evidence of 
 the circumstances attending its execution may, as between the 
 parties, be admissible to aid in the interpretation in its appli- 
 cation of the language so used.' Thus, in such a case, resort 
 may be had to the nature of the business in which the instru- 
 ment was to be used, the situation and relation of all the par- 
 ties, and their previous dealings and negotiations which led to 
 the giving of the instrument, to enable the court to under- 
 stand the meaning of the language used. So recitals in a con- 
 tract are not strictly any part of the contract, but they may 
 
 1 Emery v. "Webster, 42 Me. 204 ; s pieid v. Morason, 47 N. Y. 221 ; 
 Pierson V. Atlantic Bank, 77 N. Y. .S04. Fish v. Hubbard, 21 Wend. 651; 
 
 2 Rollins V. Pueblo County Com'rs, Merchants' Nat Bank of Whitehall 
 15 Colo. 103; Sears v. Kings County v. Hall, 83 N. Y. 346. 
 
 Elev. E. Co., 152 Mass. 151. 
 
EXCLUSION OF OEAL BY DOCUMENTAET EVIDENCE. 299 
 
 have a material influence in construing the instrument and 
 determining the intent of the parties.^ Too much regard is 
 not to be had to the proper and exact signification of words 
 and sentences so as to prevent the simple intention of the par- 
 ties from taking effect. And whenever the language used is 
 susceptible of more than one interpretation, the courts will 
 look at the surrounding circumstances existing when the con- 
 tract was entered into, the situation of the parties, and the 
 subject-matter of the instrument. To that extent, at least, 
 the well-settled rule is, that extraneous evidence is admissible 
 to aid in the construction of written contracts. The principle 
 of the admission of this class of evidence is, that the court 
 may be placed, in regard to the surrounding circumstances, as 
 nearly as possible in the situation of the party whose written 
 language is to be interpreted ; the question being, what did 
 the persons thus circumstanced mean by the language they 
 have employed? Within this principle all prior conversation 
 between the parties is not excluded. Such conversation may 
 pertain to and explain the surrounding circumstances; may be 
 part of some res gestce; or may point out the subject-matter of 
 the contract, and then it may be admissible in evidence. But 
 this principle does not authorize parol evidence of the lan- 
 guage of the parties contradicting, varying or adding to that 
 which is contained in the written instrument; or parol evi- 
 dence of prior or contemporaneous declarations showing a 
 different intention from that expressed in the instrument. If, 
 after resort to all the evidence admissible within this prin- 
 ciple, the court cannot, from the language used, ascertain the 
 meaning and intention of the party to an instrument, then it 
 is a case of incurable or hopeless uncertainty, and the instru- 
 ment must be held inoperative and void.^ The subsequent 
 conduct and acts of the parties are material and competent to 
 show the interpretation which they put on an agreement, and 
 what conditions they have waived.* Thus, parol evidence is 
 admissible to explain the circumstances under which a letter 
 
 1 Burr et al. v. Amer. S. S. B. Co., Emery v. Webster, 43 M& 204 ; Dick 
 81 N. Y. 178. Bros.' Quincy Brewing Co. v. Fin- 
 
 2 White's Bank v. Myles, 73 N. Y. nel], 39 Mo. App. 276; Case Mfg. Co. 
 335. V. Saxman, 138 U. S. 431. 
 
 'Acker v. Bender, 33 Ala. 230; 
 
300 RULES OF EVIDENCE. 
 
 was written;' and when the letters were received;^ and to 
 show that a writing sued on does not set out all of the con- 
 tract relations between the parties ; ' and that a grant was ex- 
 pressly subject to a survey to be afterwards made.* But the 
 court cannot give effect to any intention which is not ex- 
 pressed b}' the language of the instrument when looked at in 
 the light of facts that are properly before the court.' Opin- 
 ions and intentions of the parties and the surrounding facts 
 are inadmissible to alter the signification of the plain language 
 of a written instrument which is free from ambiguity.^ 
 
 § 5. When consideration of written contract may Ibe 
 shown to be different. — The consideration of an instrument 
 can be inquired into in a court of law when fraud, mistake or 
 forgery in its execution is the issue.' The consideration re- 
 cited in a sealed instrument ys, 'prima facie evidence only, and 
 may be controlled or rebutted bj'^ parol proof;' not to con- 
 tradict the instrument sued on, but to show the consideration 
 upon which it rests.' Thus, oral evidence is admissible to 
 show the consideration of a contract which does not specific- 
 ally set forth the consideration,'" or to show that the consid- 
 eration was paid by another person; " or that no part of the 
 consideration of a note inured to the benefit of the defend- 
 ant ; '^ or that a part of the consideration was a promise to pay 
 debts due from the promisee'to third persons.*' "Where there 
 
 1 Oliver v. Huuting, L. R. 44 Ch. D. 71 N. Y. State Rep. 312 ; Carty v. Con- 
 
 205. Eolly, 91 Cal. 15; Brown v. Brown, 
 
 ^Barney v. Forbes, 118 N. Y. 5S0, 106 Mo. 611; Taylor v. Crockett, 123 
 
 29 N. Y. State Rep. 980. Mo. 300. 
 
 3 Peabody v. Bement, 79 Mich. 47. 9 Macombe v. Wilkinson, 83 Mich. 
 
 * Palmer v. Farrell, 129 Pa. St. 162. 486; Serat v. Smith, 15 N. Y. Supp. 
 
 5 Farmers', etc, Co. v. Commercial 830; Halpin v. Stone, 78 Wis. 183; 
 
 Bank, 15 Wis. 424. Adee v. Hallett (N. Y.), 3 App. Div. 
 
 6 Humphries v. New York, L. E. & 308; Baird v. Baird, 145 N. Y. 659; 
 
 W. R. Co., 121 N. Y. 436, 31 N. Y. Talman v. Ward, 86 Me. 303. 
 
 State Rep. 299. . lO Fitzpatrick v. Moore, 53 Ark. 4; 
 
 7 Wain V. Wain, 53 n! J. L. 429. Schwab v. Ginkinger, 181 Pa. St. 8. 
 
 8 Barbee v. Barbee, 108 N. C. 581 ; " Lanier v. Faust, 81 Tex. 186. 
 Hawes v. Favor, 161 111. 440; Pray 12 Marchaud v. Griffin, 140 U. S. 516; 
 V. Rhodes, 42 Minn. 93 ; Nichols v. Merchants' & F. Nat. Bank v. McEl- 
 Nichols, 133 Pa. St. 438; Mills v. wee, 104 N. C. 315. 
 
 Allen, 133 U. S. 423; Silvers v. Pot- 13 Price v. Reed. 38 Mo. App. 489; 
 
 ter(N. J. Ch.),48N.J.Eq. 539; Smith Mills v. Allen, 133 U. S. 433; Don 
 
 V. Arthur, 110 N. C. 400; Piedmont Wook v. Washington Mill Co., 16 
 
 Land Co. v. Piedmont F. & N. Co., 93 Wash. 459. 
 Ala. 180 ; Baird v. Baird, 140 N. Y. 650, 
 
EXSLUSION OF DEAL BT DOCDMENTAET EVIDENCE. 301 
 
 is either a direct and positive promise in a written contract 
 to pay the consideration named, or the assumption of an in- 
 cumbrance on the part of the grantee, parol proof is inadmis- 
 sible to vary the consideration.^ Thus, another and further 
 consideration cannot be proved for a written release which 
 recites a consideration of $1,000 ; ^ nor to show that the amount 
 agreed to be paid for a one-third interest in a hotel within a 
 given time was to be paid out of the profits or in any other 
 way not specified in the contract.' As a general rule, the 
 consideration for a written agreement may be shown by 
 parol, and the recited consideration may be contradicted or 
 shown to be something different.* Thus, the statement of 
 the consideration in a deed, as being a lump sum, may be con- 
 trolled by parol evidence that the price of the land was to 
 depend upon the number of square feet in its area.' So it 
 may be shown that an instrument was made upon suflBcient 
 consideration though no consideration is expressed in it.^ And 
 the conversation at the execution of an instrument is admis- 
 sible to show the real transaction as well as the good faith 
 thereof.' But a new term cannot be introduced in an agree- 
 ment by such parol evidence,' as that a portion of the rent re- 
 served in money by a lease was to be taken out in boarding.' 
 But parol evidence is admissible to show that a mortgage 
 conditioned for the payment of " any and all notes, checks 
 and drafts indorsed" by the mortgagee was intended to 
 secure and did secure future indorsements, as against a sec- 
 ond mortgagee of whose mortgage the former had no no- 
 tice at the time of making indorsements subsequent to the 
 mortgages for which the mortgage is sought to be foreclosed.'" 
 
 'Pickett V. Green, 120 Ind. 584; Co., 53 N. Y. State Rep. 450; Knapp 
 
 Baring v. Waterbury, 10 App. Div. 1. t. Gregory, 65 Hun, 681, 47 N. Y. State 
 
 2 White V. Richmond & D. R. Co., Rep. 408 ; McNulty v. Urban, 50 N. Y. 
 
 110 N. C. 456; Miller v. Rowan, 108 State Rep. 565, 140 N. Y. 660; Harlan 
 
 Ala, 98. v. Moore, 164 111. 144. 
 
 'Smith V. Kemp, 92 Mich. 057; 8 Gerard t. Cowperthwait, 50 N. Y. 
 
 Dawson v. Bristol, 97 Ga. 408. State Rep. 592 ; Trogdon v. Trogdon, 
 
 < Ferris v. Hard, 135 N. Y. 354, 48 132 Mo. 483. 
 
 N. Y. State Rep. ' 518 ; Guidery v. " StuU v. Thom.pson, 154 Pa. St 43 ; 
 
 Green, 95 Cal. 680 ; Hill v. Whidden, Hart v. Taylor, 70 Miss. 317 ; Fuller 
 
 158 Mass. 267. v. Artman, 69 Hun, 546, 53 N. Y. State 
 
 » Cardinal v. Hadley, 158 Mass. 352. Rep. 339. 
 
 6 Seventh Day B. M. F. v. Saunders, " Farr v. Nicholas, 132 N. Y. 327, 44 
 
 84 Wis. 311. N. Y. State Rep. 555. 
 
 'Korneman v. Fred Hower Brew. 
 
302 EULES OF EVIDENCE. 
 
 § 6. Receipts, etc. — While a written receipt may be ex- 
 plained or contradicted by parol testimony, a contract em- 
 braced therein cannot be.' Thus, parol evidence is admissible 
 to show that the sum mentioned in a paper reciting the re- 
 ceipt from a person named, as a loan, of a specified sum, to be 
 returned on a certain day, was not received by the person 
 who signed such receipt, but was in fact loaned to another. 
 So parol evidence is admissible to show that a note of a third 
 person was not taken in absolute payment of a debt, although 
 receipted bills for the debt were delivered to such person.' 
 Any proofs suificient to enable a releasor to maintain an action 
 for the reformation of the release so as to except from its pro- 
 visions the demand in suit are available to him in an action, 
 by way of evidence of its terms ; and upon such issue evidence 
 of the preliminary negotiations of the parties, and of the re- 
 leasor's ignorance, is relevant and important.' A receipt is 
 not conclusive evidence of pa5'ment,* and it is admissible to 
 show that by a previous agreement a receipt was to have no 
 effect ; * and a receipt in full will not exclude parol evidence 
 that it was merely to discharge one of two obligations.' But 
 a settlement, evidenced by written receipts, showing on their 
 face a full settlement of all dealings between the parties, is 
 conclusive in the absence of fraud or mistake, and cannot be 
 changed by parol evidence of a contemporaneous agreement 
 that it did not include certain dealings.' A written release of 
 a claim does not cut off proof of an oral promise to make com- 
 pensation therefor in a will.' A writing may be both a receipt 
 and a contract, in which case the portion operative as a receipt 
 may be contradicted or explained like any other receipt.' 
 
 1 Prairie School Tp. v. Haselen, 3 5Conselmanv.Collins,35Ill.App.68; 
 N. D. 338 ; Morse v. Rice, 86 Neb. 122 ; State, Joslin v.'Giese. 59 N. J. L. 130. 
 Chicago & N. W. R Co. t. Simon, 160 « Shenandoah Cotton Co. v. Lefferts, 
 ID. 648. 59 Hun, 620, 36 N. Y. State Rep 63 
 
 2 Thorman v. Polya, 48 N. Y. State ' Pratt v. Castle, 91 Mich. 484 ; Ennis 
 Rep. 671 ; Peirara v. Smith, 53 id. 134. v. Pullman Palace Car Co., 165 111. 161. 
 
 3 Kirchner v. New Home Sewing 8 Andrews v. Brewster, 134 N. Y. 
 Machine Co., 48 N. Y. State Rep. 342, 433, 36 N. Y. State Rep. 413. 
 
 135 N. Y. 183. ' Hossack v. Moody, 89 111. App 17 ; 
 
 *Rader v. McElvan, 21 Oreg. 56; Southern K. F. L. & T. Co. v. Garrity, 
 Hellwig V. Benzinger, 73 Md. 189. 57 Kan. 805. 
 
EXCLUSION OF OEAL BY DOODMENTAET EVIDENCE. 303 
 
 § 7. Parol evidence to complete an entire agreement of 
 which a writing is only a part. — To bring a case within the 
 rule admitting parol evidence to complete an entire agreement 
 of which a writing is only a part, two things are essential. 
 First, the writing must appear on inspection to be an incom- 
 plete contract ; and second, the parol evidence must be con- 
 sistent with and not contradictory of the written instrument.' 
 It is a general rule that evidence of what was said between 
 the parties to a valid instrument in writing, either prior to or 
 at the time of its execution, cannot be received to contradict 
 or vary its terms. In other words, the general rule requires 
 the rejection of parol evidence when its effect would be to cut 
 down or destroy stipulations and undertakings entered into 
 between parties and by them put in writing. All prior and 
 contemporaneous negotiations and oral promises in reference 
 to the same subject are merged in the written contract, and 
 the rights and duties of the parties are to be determined by that 
 instrument. When that has been executed, it is then conclu- 
 sively presumed that it contains the whole engagement of the 
 parties. This rule is not universal in its application, because 
 the courts, in their effort to prevent fraud and injustice, 
 have laid down certain exceptions, which, though correct in 
 principle, are sometimes so loosely applied in practice as to 
 threaten the integrity of the rule itself.^ The real exceptions 
 may be grouped in two classes, the. first of which includes 
 those cases in which parol evidence has been received to show 
 that that which purports to be a written contract is in fact 
 no contract at all. Thus, fraud, illegality, want of considera- 
 tion, delivery upon an unperformed condition, and the like, 
 may be shown by parol, not to contradict or vary but to de- 
 stroy a written instrument. Such proof does not recognize 
 the contract as ever existing as a valid agreement, and is re- 
 ceived from the necessity of the case to show that that which 
 appears to be is not, and never was, a contract.* 
 
 The second class embraces those cases which recognize the 
 written instrument as existing and valid, but regard it as in- 
 complete, either obviously or at least possibly, and permit parol 
 
 1 Case V. Phoenix Bridge Co., 134 '' Benton v. Martin, 52 N. Y. 570 ; 1 
 N. Y. 78 ; 45 N. Y. State Rep. 603. Green). Ev., § 384 
 
 2 1 Greenl. Ev., § 284a. 
 
30i EtJLES OF EVIDENCE. 
 
 evidence, not to contradict or vary, but to complete the en- 
 tire agreement of which the writing is only a part. Receipts, 
 bills of parcels and writings that evidently express only some 
 parts of the agreement are examples of this class which leaves 
 the written contract unchanged, but treats it as part of an 
 entire oral agreement, the remainder of which was not re- 
 duced to writing. Two things, however, are essential to 
 bring a case within this class: First, the writing must not 
 appear upon inspection to be a complete contract, embracing 
 ail the particulars necessary to make a perfect agreement, and 
 designed to express the whole arrangement between the par- 
 ties, for in such a case it is conclusively presumed to embrace 
 the entire contract; second, the parol evidence must be con- 
 sistent with, and not contradictory of, the written instrument. 
 Chapin v. Dobson' is an instance of this class, and, although 
 near the border line, illustrates the two requirements just 
 mentioned. In that case it was held competent to show by 
 parol evidence that a written contract to furnish machinery 
 of a specified kind, at a definite price, within a certain time, 
 and to deliver it in a particular way, was part of an entire 
 verbal contract which provided that the machines should be 
 so made that they should do the work of the person who or- 
 dered them to his satisfaction. The ground of the decision 
 was that there was nothing on the face of the instrument to 
 show that it was the whole agreement between the parties, 
 and that the oral guaranty did not contradict and was not 
 inconsistent with the written contract. In Eighmie v. Taylor' 
 the court had under consideration a written instrument that 
 was regarded as, upon inspection, appearing to be a full, definite 
 and complete agreement of bargain and sale, and therefore 
 held that evidence of a verbal warranty in that case was in- 
 admissible. In the course of the opinion comment was made 
 upon Chapin v. Dobson ' in this way : " It was said of the in- 
 strument then in question that there was nothing upon its 
 face to show that it was intended to express the whole con- 
 tract between the parties, the inference being, as was de- 
 clared in an earlier case, that when a contract does not indi- 
 cate such intention and design and is one consummated by the 
 
 178N. Y. 74. ^Supi-a. 
 
 2 98 N. Y. 288. 
 
EXCLUSION OF OKAL BY DOCDMENTAEY EVIDENCE. 305 
 
 writing, the presumption of law arises that the written in- 
 strument contains the whole of the agreement, and that when 
 there is such foi*mal contract of bargain and sale executed in 
 writing, there can be no question but that the parties intended 
 the writing as a repository of the agreement itself." ' 
 
 The principle upon which parol evidence is held admissible 
 to show that a simple assignment, although absolute in terras, 
 was intended as security merely, is the supposed incomplete- 
 ness of the instrument, and it is not regarded as contradict- 
 ing the writing, but as showing its purpose.^ Where, however, 
 instead of a mere transfer or assignment, there is a contract 
 appearing on its face to be complete, with mutual obligations 
 to be performed, you. can no more add to or contradict its 
 legal effect by parol stipulations preceding or accompanying 
 its execution than you can alter it through the same means in 
 any other respect.' 
 
 In the foregoing classification collateral agreements are 
 not included, because they are separate, independent and com- 
 plete contracts, although relating to the same subject. They 
 are allowed to be proved by parol because they are made by 
 parol, and no part thereof committed to writing. Evidence 
 to explain an ambiguity, establish a custom, or show the 
 meaning of technical terms and the lilie, is not regarded as an 
 exception to the general rule, because it does not contradict 
 or vary the written instrument, but simply places the court 
 in the position of the parties when they made the contract, 
 and enables it to appreciate the force of the words they used 
 in reducing it to writing. It is received where doubt arises 
 upon the face of the instrument as to it meaning, not to en- 
 able the court to hear what the parties said, but to enable it 
 to understand what they wrote, as they understood it at the 
 time. Such evidence is explanatory, and must be consistent 
 with the terms of the contract.* Will anything of value be 
 left of the rule that evidence of what was said between the 
 parties to a valid instrument in writing is incompetent, if it 
 is held that a writing which contains the full definite terms 
 
 1 Citing Filkins y. Whyland, 24 ' Renard v. Sampson, 13 N. T. 561. 
 N. Y. 338. < Dana v. Fielder, 12 N. Y. 40. 
 
 2 Thomas v. Soott, 137 N. Y. 133; 
 38 N. Y. State Rep. 696. 
 
 20 
 
306 EULES OF EVIDENCE. 
 
 of a contract, apparently complete, may be shown by oral 
 evidence to be simply part performance of an entire verbal 
 agreement previously made? In other words, if a new con- 
 tract is to be proven by parol and the written agreement of 
 the parties is to go for nothing; that is to sa}^ if the courts 
 are to go outside of the written instrument to find a stipulq,- ' 
 tion upon which the validity of the contract is to depend, and 
 then to enforce the parol stipulation to the absolute de- 
 struction of the written instrument? The very reason of the 
 rule which excludes evidence of declarations is to avoid the 
 uncertainty attendant upon such evidence, and equity should 
 not set aside that important and well-settled rule for the pur- 
 pose of relieving, a party from a risk which, upon his own 
 showing, if it be true, he has voluntarily incurred. 
 
 The writings which are protected from the effect of con- 
 temporaneous oral stipulations are those containing the terms 
 of a contract between the parties and designed to be the re- 
 pository and evidence of their final intention. If, upon inspec- 
 tion and study of the writing, read, it may be, in the light of 
 surrounding circumstances, in order to its proper understand- 
 ing and interpretation, it appears to contain the engagement 
 of the parties, and to define the object and measure the ex- 
 tent of such engagement, it constitutes the contract between 
 them and is presumed to contain the whole of that contract. 
 When the writing does not purport to disclose the contract or 
 cover it ; when in view of its language, read in connection with 
 the attendant facts, it seems not designed as a written state- 
 ment of an agreement, but merely as the execution of some 
 part or detail of an unexpressed contract; when it purports 
 only to state one side of an agreement merely, and is the act 
 of one of the parties only in the performance of his pi'omise, — 
 in these and like cases the exception may properlj'^ apply and 
 the oral agreement be shown. For while the general rule is 
 that evidence is inadmissible to ingraft upon or incorporate 
 with a valid written contract an agreement made contempo- 
 raneously therewith,, and inconsistent with its terms;' and 
 that parol conversations preceding a written contract are not 
 
 iHnckel v. Guffey, 37 W. Va. 425; Co., 48 N. Y. State Rep. 687; Rich- 
 Johnson v. Washburn, 98 Ala. 358; mond & D. R. Co. v. Shomo, 90 Ga. 
 Si mis V. New York, L. E. & W. R 74. 
 
EXCLL'SIOlSr OF ORAL BY DOOUMP:NTAEY EVIDENCE. 807 
 
 allowed to add to or take from the contract,' the rule is 
 absolute only where there is no claim that the writing does 
 not contain the whole contract, and where the written con- 
 tract purports on its face to contain the entire agreement 
 between the parties, and to be an absolute one.^ Thus, a parol 
 agreement of a mother, that lands conveyed to 'her by het 
 daughters shall come back to the latter in equal shares upon 
 her death, is inadmissible as contradicting the deed, notwith- 
 standing such agreement was the consideration of the deed ; ' 
 and where a written contract contains no warranty nor guar- 
 anty, parol evidence of one is inadmissible.* It is different 
 where defendant disputes plaintiff's claim that the contract 
 was in writing, or alleges that it was procured by fraud, or 
 that it was not a complete contract.^ Thus a parol warranty 
 by an assignor of a chattel mortgage, that the mortgage was 
 good, and, if not, that the assignee's money would be re- 
 funded, is admissible in evidence, although the assignment 
 was silent on that subject, the fact that the whole agreement 
 was contained in the assignment not being apparent from the 
 paper itself." 
 
 Where a contract refers to drawings and specifications but 
 none are annexed to the contract, resort may be had to ex- 
 trinsic evidence to identify them ; and after proper identifica- 
 tion it is error to exclude a paper which purports to be such 
 specifications.' For while the general rule which excludes 
 
 1 Morowste v. Rohrig, 53 N. Y. State ■• Van Winkle v. Crowell, 146 U. S. 
 Rep.220; Hai-clinT.Kelley,86Va.l77. 42; Naylor v. McSwegan, 50 N. Y. 
 
 2 Will. M. Kennard Co. v. Cutter State Rep. 339; Piano Mfg. Co. v. 
 Power Co., 159 Mass. 391; Mercan- Root, 3 N. Dak. 165; Ramming v. 
 tile Bank v. Taylor (1893), A. C. 317; Caldwell, 43 111. App. 175; Younglove 
 Warren v. Phoenix Ins. Co., 65 Hun, v. Nelson, 51 Minn. 173. 
 
 631, 47 N. Y. State Rep. 431 ; Deuser 5 Chase v. Everts, 65 Hun, 681, 47 
 
 V. Hamilton, 53 Mo. App. 394; Beall N. Y. State Rep. 425. 
 
 V. Fisher, 95 Cal. 568; Re Perkins' 6 Akberg v. John Kress Brew. Co., 
 
 Estate, 65 Vt 313; Maines v. Henry, 65 Hun, 183, 47 N. Y. State Rep. 
 
 76 Ala. 454; Zimpelra'an v. Hipwell, 373. 
 
 64 Fed. Rep. 848 ; Gasper v. Heimbach, ' Wegener v. Butler, 57 N. Y. State 
 
 53 Minn. 414. Rep. 479. 
 
 SHenuing v. Miller, 66 Hun, 588, 50 
 N. Y. State Rep. 559. 
 
308 EULES OF EVIDBNOE. 
 
 parol evidence when offered to contradict or vary the terms 
 or legal import of a written agreement is so well settled as 
 not to be a proper subject of discussion, it has many excep- 
 tions, and its full application has by the decisions of the courts 
 been restricted within narrow limits. The writings which 
 are protected from the effect of contemporaneous or preced- 
 ing oral stipulations are those containing the terms of a con- 
 tract between the parties and designed to be the repository 
 and evidence of their final intention.^ 
 
 § 8. Illustrations. — (1) In order to exclude oral proof of 
 a contract the writing must purport to be a complete con- 
 tract.^ 
 
 (2) The rule is that in all cases where a writing, although 
 embodying an agreement, is manifestly incomplete, and is not 
 intended by the parties to exhibit the whole agreement, but 
 on\y to define some of its terms, the writing is conclusive as 
 far as it goes ; but such parts of the actual contract as are not 
 embraced within its scope may be established by parol.' 
 
 (3) In the absence of fraud or mistake, a contemporaneous 
 or precedent parol agreement cannot be set up to vary or 
 contradict the terms of a written agreement.'' 
 
 (4) All prior contracts, conversations and undertakings re- 
 lating to the same subject-matter are conclusively presumed 
 to have been merged in the contract reduced to writing and 
 signed by the parties.* Thus where a contract of a sale of 
 
 1 Englehorn v. Reitlinger et at, 122 v. Starrett, 57 Mich. 350 ; Hil)s v. Rix, 
 N. Y. 76, 33 N. Y. State Rep. 276. 43 Minn. 543 ; Dircks v. German Ids. 
 
 2 Peterson v. Chicago, R. I. & P. R Co., 34 Mo. App. 31 ; Dodge v. Kiene, 
 Co., 80 Iowa, 92 ; Alexander v. Thomp- 28 Neb. 216 ; De Witt v. Berry, 184 
 son, 42 Minn. 498 ; Moores v. Glover, U. S. 306 ; Bopp v. Askins, 81 N. Y. 
 37 N. Y. State Rep. 397. ' State Rep. 555 ; Gordon v. Nieman, 
 
 3 Moss V. Green, 41 Mo. 389 ; Cur- 118 N. Y. 152, 28 N. Y. State Rep. 616; 
 tis V. Soltan, 34 N. Y. State Rep. 707 ; McLean v. Nicol, 43 Minn. 169; Tyler 
 Work V. Beach, 59 Hun, 635, 37 N. Y. v. Waddingham, 58 Conn. 375. 
 State Rep. 547; Norton v. Bohart, 105 « Jacobs v. Shenon, 3 Conn. 1002; 
 Mo. 615; T.W.Harvey Lumber Co. Kaserman v. _ Friers, 33 Neb. 437; 
 V. Herriman, etc. Lumber Co., 39 Mo. Smith v. Deere, 48 Kan. 416 ; John- 
 App. 314. ' son V. St. Louis, L M. & S. R. Co., 141 
 
 4 Scarborough v. Alcorn, 74 Tex. U. S. 603; Culver v. Wilkinson, 145 
 858 ; De Loach v. Smith, 83 Ga. 665 ; id. 205. 
 
 Clhapin v, Baker, 134 Ind. 385 ; Skeels 
 
EXCLUSION OF OKAL BY DOCCMENTAET EVIDENCE. SOS 
 
 goods is in writing and contains no warranty, or where £t 
 written contract contains a warranty, parol evidence is not 
 admissible to add a warranty.' So where a bond obligates- 
 the accused to appear at the "next" term of court, parol evi- 
 dence of a declaration of the justice that the term for the ap- 
 pearance is later is inadmissible.^ 
 
 (5) Parol evidence is admissible to prove a verbal agreement 
 that makes the enforcement of an instrument inequitable,' 
 and therefore parol evidence is admissible to establish a con- 
 temporaneous oral agreement which induced the execution of 
 a written contract, though it may vary, change or reform the 
 instrument.* 
 
 (6) In the absence of allegations of fraud or mistake, or 
 lack of knowledge of the conditions of the contract, oral rep- 
 resentations made before the execution of a written contract 
 are inadmissible to contradict or enlarge the scope of the con- 
 tract.' 
 
 (7) Evidence of a parol agreement contemporaneous with a 
 written instrument is admissible in evidence when the writing 
 was obtained on the faith of the parol agreement and an at- 
 tempt is made to enforce it in violation thereof.' 
 
 § 9. As to bills and notes.— A prior or contemporaneous 
 parol agreement is not admissible to vary or alter the terms- 
 of a note absolute on its face and complete in its terms.' Thus, 
 a maker of a note, in a suit thereon bj' the payee, is not al- 
 lowed to testify against the note that it was given for the 
 purpose of a receipt, or was understood by the parties as 
 having the effect of a receipt ; * or to show that one who ap- 
 
 1 De Witt V. Berry, 134 U. S. 306 ; Wis. 455 ; Seil^ v. Brewers' Refrig- 
 Snovv V. Alley, 151 Mass. 14 ; Kessler erating & Maoh. Co., 141 U. S. 510. 
 
 V. Smith, 42 Minn. 494 ; Patterson v. ' Horner v. Horner, 145 Pa. St 258. 
 
 Ramspeclr, 81 Ga. 808. ' Eeed v. Nicholson, 37 Mo. App. 
 
 2 Crawford County v. Coppock, 79 646 ; Eocli Island P. Nat. Bank v. 
 Iowa, 482. Anderson,, 28 S. C. 43 ; Coapstick v. 
 
 'Carraher v. Mulligan, 54 Hun, Bosworth, 121 Ind. 6; Osborn v. 
 
 638; 38 N. Y. State Rep. 439; Mc- Taylor, 58 Conn. 439 ; Chemical Elec. 
 
 Atier v. McAtier, 31 S. C. 313. Light & P. Co. v. Howard, 150 Mass. 
 
 * Ferguson v. Rafferty, 128 Pa. St. 495 ; Van Vleet v. Sledge, 45 Fed. 
 
 337. Rep. 743; Read v. Bank of Attica, 
 
 sStavers v. Rogers, 3 Wash. 603; 124 N. Y. 671; 36 N, Y. State Rep* 
 
 Anderson v. Middle & E. T. 0. R 894 ; May v. May, 36 111. App. 77. 
 
 Co., 91 Tenn. 44 ; Taylor v. Davis, 83 8 stoyell v. Stoyell, 82 Me. 383. 
 
310 EULES OF EVIDENCE. 
 
 pears as a joint maker of a note signed merely as surety ; ■ or 
 of a prior contemporaneous agreement that the note should 
 be paid from the profits to be realized from the sales of land.^ 
 And while as against a third person, who has become in good 
 faith the holder of a promissory note, a defendant, whether a 
 maker or an indorser, cannot escape from the legal import of 
 his former contract by an offer of parol evidence, as between 
 any other parties, evidence showing the real relations of the 
 parties is admissible.' Thus it may be shown that a note was 
 left with the payee until it should be signed by another person ; * 
 or that the indorser signed in a different place than he intended 
 to ; ^ or that it was stipulated in another paper, at the time of 
 the indorsement, that no recourse should be had to the in- 
 dorser.^ But it is held that, in an action by a stockholder of 
 a corporation, evidence that the notes sued on were executed 
 to the plaintiff for a loan by him on condition that they were 
 not to be paid until the corporation should make profits suf- 
 ficient to pay the advances, is not obnoxious to the rule that 
 parol evidence is inadmissible to vary the terms of a written 
 contract.' And in an action by the payee of a note against 
 indorsers thereon, evidence is admissible that at the time of 
 the indorsement it was agreed that the indorsers should not 
 be personally liable;' or that some of the joint makers signed 
 only as sureties ; ^ or that defendant indorsed the note sued 
 on under an agreement, for a valuable consideration, that his 
 co-indorser was to hold him harmless on his indorsement;'" or 
 that a note executed by a daughter to her father was in fact 
 executed as a mere receipt or memorandum of an advance- 
 ment." And parol evidence is admissible to show that the use 
 of an accommodation note was restricted by the parties 
 
 1 Aultman & T. Co. v. Gorham, 87 « Johnson v. Willard, 83 Wis. 420. 
 Midi. 233 ; Cross v. Hollister, 47 Kan. ^ Carraher v. Mulligan, 54 Huu, 638, 
 €53. 38 N. Y. State Eep. 439. 
 
 2 Lakeside Land Co. v. Dromegoole, « Kingsland v. Koeppe, 35 111. App. 
 89 Ala. 505. 81. 
 
 ^Holmes v. aoldsmith, 147 U. S. 150 ; » Vestal v. Knight, 54 Ark. 97. 
 
 Bank of B. C. v. JeflEs, 15 Wash. 330. lOMoPherson v. Weston, 85 Cal. 90; 
 
 4 Robertson v. Rowell, 158 Mass. 94. Fullerton v. Hill, 48 Kan. 558. 
 
 s Bank of Jamaica v. Jefferson, 92 n Brook v. Latimer, 44 Kan. 431. 
 Tenn. 537; Montgomery v. Page, 39 
 Oi-eg. 330. 
 
EXCLUSION OF OEAL BY DOCUMENTAKT EVIDENCE. 311 
 
 thereto;' and to show that it was agreed that an indorsement 
 in blank of a note secured by mortgage was without recourse.^ 
 As between the immediate parties it is competent to show 
 by parol evidence in what character an irregular indorser in- 
 tended that he should be bound, and proof of this intention 
 will countervail t\\Q prima facie presumption set up by the 
 court.' Thus, it has been permitted to show that such a per- 
 son intended to be bound as a guarantor;* as a maker;* as a 
 surety or joint maker;* as an indorser, first or second.'' The 
 admissibility of parol evidence may be justified on the ground 
 that the position of the signature on the back is ambiguous in 
 itself, and the contract, not being fully expressed in the mere 
 signature, may be explained and proved by parol evidence. 
 When the payee or indorsee writes his name across the back 
 of the paper there is no ambiguity, concerning the character 
 and meaning of the signature, to be explained away. But if 
 any one alone writes his name thereon, he only becomes a party 
 to the instrument by his signature, and the position of the 
 signature does not clearly indicate the character in which he 
 signed. It can therefore be shown by parol evidence.^ Parol 
 
 1 Kiel V. Choate, 93 Wis. 517 : West- * Camden v. McCoy, 3 Scam. 437 ; 
 ern Nat Bank v. Wood, 46 N. Y. State Worden v. Salter, 90 III. 160 ; Strauss 
 Rep. 649 ; Wilson v. Wilson, 26 Oreg. v. Hensey, 7 App. D. C. 289 ; Seymour 
 251 ; Hutchinson v. Hutchinson, 102 v. Farrell, 51 Mo. 95 ; Taylor v. French, 
 Mich. 635; Wallace v. Goodlet, 93 2 Lea, 560; Barrows v. Lane, 5 Vt. 
 Tenn. 598 ; Dobbins v. Blanchard, 94 161 ; Levi v. Mendell, 1 Duv. 77 ; 
 Ga. 500 ; Badart v. Foulon, 80 Md. 579 ; Browning v. Merritt, 61 Ind. 425 ; Eil- 
 Corbett v. Fetzer, 47 Neb. 269 ; First bert v. Finkbeiner, 68 Pa. St. 243. 
 Nat. Bank t. Pedran, 118 N. C. 671; 5 Lincoln v. Hinzey, 51 111. 435. 
 McQuarrie v. Brand, 88 Out Rep. 69. iRpy y_ Simpson, 22 How. (U. S.) 
 
 2 Truman v. Bishop, 83 Iowa, 697; 341; Walz v. Alback, 37 Md. 404; 
 Peterson V. Russell, 29 L. R. A. 612. Kealing v. Vansickle, 74 Ind. 529; 
 
 3 Tiedeman on C. P., g§ 372, 273, 274 ; Baker v. Robinson, 63 N. C. 191. 
 Good V. Martin, 95 U. S. 95; Buford ' Mammon v. Hartman, 51 Mo. 169; 
 v. Ward, 108 Ala. 807 ; Chaddock v. Eberhart v. Page, 89 EI. 550 ; Cady 
 Vanne.ss, 35 N. J. L. 571; Sylvester v. v. Shepard, 12 Wis. 713; Seymour v. 
 Downer, 20 Vt. 355 ; Quinn v. Sterne, Mackej-, 15 Ohio St 515 ; Kellogg v. 
 26 Ga. 224 ; Ives V. Bosley, 35 Md. 562 ; Dunn, 2 Met (Ky.) 215; Burton v! 
 Cahn V. Dutton, 60 Mo. 563 ; Nurre v. Hansford, 10 W. Va. 470. 
 Chittenden, 56 Ind. 465 ; Perkins v. 8 Tiedeman on C. P., g 273 : 1 Dan- 
 Catlin, llConn. 213; Pierse v. Irvine, iel's Neg. Inst, § 711; Essex Go. v. 
 1 Minn. 869; Iser v. Cohen, 57 Tenn. Edmunds. 13 Gray, 373; Heath v. Van 
 431; Welsh v. Eborsole, 15 W. Va. Cott 9 Wis. 516; Peckham v. Gilman 
 651. 7 Minn. 446. ' 
 
312 EULES OF EVIDENCE. 
 
 evidence is admissible even where the indorsement is written 
 below the signature of the payee.' Wherever parol evidence is 
 admissible, it is competent to show by it that the party signed 
 before the delivery of the paper to the payee, and that he in- 
 tended to guarantee its payment to the payee.'' It is also 
 competent to show by parol evidence the character of the in- 
 dorsement, whether it was made after maturity,' or before the 
 indorsement without recourse by the payee,* or whether the in- 
 strument was negotiable or not.^ In every case where the sig- 
 nature on the back is in an ambiguous position, and the meaning 
 can only be definitely ascertained bj"^ parol evidence, then parol 
 evidence is admissible to prove its true character, even against 
 a purchaser for value; for he can reasonably be charged with 
 notice of this ambiguity.^ As soon as the ambiguity is dis- 
 posed of or dissipated, parol evidence ceases to be admissible 
 to control the terms and character of the contract. Proof of 
 the fact that the indorsement was made before the delivery of 
 the paper to the payee fixes the liability of the irregular in- 
 dorser as that of joint maker, and parol evidence is inadmissible 
 to show a different intention.' If an indorsement is regular, 
 *. e., when it constitutes a link in the successive transfers of the 
 paper from the payee to the present holder, parol evidence is 
 not admissible to show that the party indorsing in this manner 
 intended to become bound as joint maker, guarantor, or in any 
 other character than as indorser.^ It is incompetent to show by 
 parol evidence that the liability on the indorsement was made 
 
 1 Brown v. Butler, 99 Mass. 179; 341; Good v. Martin, 95 17. S. 95; 
 Clawson v. Gustin, 3 South. 821. Frank v. Lilienfeld, 33 Gratt 392; 
 
 2 Tiedeman on 0. P., § 374 ; Cady Denton v. Peter, 5 Q. B. (L. E.) 475. 
 V, Shepard, 13 Wis. 713; De Hass v. 'Tiedeman on C. P., § 374; Way 
 Dibert, 30 L. R. A. 189; Fegenbush v. v. Butter worth, 108 Mass. 512; Bank 
 Lang, 38 Pa. St. 193; Boynton v. v. Willis, 4 Met. (Mass.) 504; Phipps v. 
 Pierce, 79 111. 145; Sill v. Leslie, 16 Hamburg, 30 L R A. 513; Brown v. 
 Ind. 336 ; Sturtevant v. Randall, 53 Butler, 99 Mass. 179 ; Good v. Martin, 
 Me. 149. 95 U. S. 94 ; Chaddock v. Vanness, 35 
 
 3 McCelvy v. Noble, 13 Rich. 167. N. J. L. 518 ; Irish v. Cutler, 31 Me. 
 
 4 Watkins v. Kirkpatrick, 3 Dutch. 536. 
 
 84. 8 Hamburger v. Miller, 48 Md. 327; 
 
 5 Wells V. Jackson, 6 Black. 40. Hauer v. Patterson, 84 Pa. St, 275; 
 «Greenough v. Smead, 8 Ohio St. Barnard v. Goslin, 23 Minn. 194 ; Fin- 
 
 415 ; Thacher v. Stevens, 46 Conn, ley v. Green, 85 lU. 536. 
 661 ; Rey v. Simpson, 33 How. (U. S.) 
 
EXCLUSION OF ORAL BY DOCrMENTAEY EVIDENCE. 313: 
 
 conditional, in any other way, or different from the ordinary 
 liability of an indorser.' It is always competent to show by 
 parol evidence that the indorsement was made without con- 
 sideration, as, for instance, that it was made for the accommo- 
 dation of the indorsee.^ 
 
 It is the general rule in England and in the United States that 
 the want of original consideration, when proven, does not throw 
 upon the plaintiff the burden of proving that he is a lonaflde 
 holder for value,' unless the paper is payable to bearer ; and 
 in this case it has been held that the absence from the face of 
 the paper of evidence of the fact that the plaintiff is a trans- 
 feree and not the original payee throws upon him the burden 
 of proving that fact.* "Where the instrument is supported by 
 a consideration, it is no defense to an action by the indorsee- 
 against the maker, the drawer, the acceptor, or any prior in- 
 dorser except the immediate indorser, that the plaintiff is not 
 a holder for value. The want of consideration for the trans- 
 fer by indorsement is a good defense only in an action by the 
 indorsee against his immediate indorser.'" Wherever the ap- 
 parent relation of the parties differs from the real, it is always- 
 competent, for the purpose of admitting or excluding the de- 
 
 1 Stack V. Beach, 74 Ind. 571 ; Sny- York B. & P. Co., 148 N. Y. 698;. 
 der V. Oatman, 16 111. 265 ; Day v. Fletcher v. Cashee, 33 Me. 587 ; Har- 
 Thompson, e.S Ala. 269; Bartlett v. ger v. Worrall, 69 N. Y. 371; Davis- 
 Lee, 33 Ga. 491 ; Preston v. Ellington, v. Bartlett, 12 Ohio St. 537 ; Ellicott 
 74 Ala. 133 ; Doolittle v. Ferry, 20 v. Martin, 5 Md. 509 ; Sloan v. Union 
 Kan. 330 ; Barnard v. Goslic, 23 Minn. Banking Co., 67 Pa. St. 479 ; Greneaux 
 193; Crocher V. Getchell, 33 Ma 393 ; v. Wheeler, 6 Tex. 515; Cummings 
 Charles v. Denio, 43 Wis. 56 ; Barry v. Thompson, 18 Minn. 253 ; Mathews- 
 V. Morse, 3 N. H. 133. v. Poythreas, 4 Ga. 287 ; Cropsey v. 
 
 ^Breneman v. Furniss, 90 Pa. St. Averill, 8 Neb. 157; Organ Co. v.. 
 186 ; Hamburger v. Miller, 48 Md. Boyle, 10 .Neb. 409. 
 325; Morris v. Faurot, 31 Ohio St. 'Bissell v. Morgan, 11 Cush. 198; 1 
 155 ; Cole v. Smith, 39 La. Ann. 551 ; Daniel-, Neg. Inst, § 814a. 
 Davis V. Morgan, 64 N. C. 570 ; Love- ^Tiedeman on C. P., § 155 ; Middle- 
 joy V. Citizens' Bank, 23 Kan. 331; bury v. Case, 6 Yt. 165; Henderson 
 Kirkham v. Boston, 67 111. 599 ; Smith v. Davidson, 157 111. 379 ; Shane v.. 
 V. Carter, 35 Wis. 383 ; Cook v. Cock- Lowry, 48 Ind. 205 ; Frederick v. 
 rill, 1 Stew. (Ala.) 475 ; Wood v. Mat- Winans, 51 Wis. 473 ; Mo Williams v. 
 thews, 73 Mo. 477. Bridges, 7 Neb. 419 ; Kelly v. Pember,. 
 
 3Tiedemau ou C. P., § 154; Com- 35 Vt. 183; Kickle v. Dow, 39 Mich, 
 
 missioners v. Clark, 94 U. S. 385 ; 91 ; Byers v. Harris, 9 Heisk. 653. 
 American' Exch. Nat. Bank v. New 
 
S14 EULBS OF EVIDENCE. 
 
 fense of consideration, to show by parol evidence the true re- 
 lation of the parties. Thus, the name of the payee and in- 
 <lorsee is often left blank, and the blank filled up afterwards 
 with the name of a subsequent holder, thus making him ap- 
 pear as the payee or prior indorsee. In all such cases it is 
 competent for him to show that he is not the original payee or 
 immediate indorsee, and thus exclude the defen'se of want of 
 consideration from his action on the instrument.' 
 
 A person may lawfully have more than one name, and con- 
 sequently a drawee might be described in the bill by one 
 name and accept it in another name. Parol evidence is ad- 
 missible to prove that the two names describe one and the 
 •same person.^ The character of an acceptance cannot be va- 
 ried by a subsequent agreement.' If the acceptance is written, 
 it may be varied by another contemporaneous writing, and 
 this condition will be as binding as if it had been incorporated 
 into the written acceptance, except as against bona Jide holders 
 who take the bill without notice of it.* But a written accept- 
 ance cannot be varied by any contemporaneous parol agree- 
 2iient.^ 
 
 " Where one who appears as a principal party is surety for 
 another who appears to be a secondary party, drawer or in- 
 dorser, this fact may be shown by parol evidence, and tlie 
 party who is in fact a surety will be entitled to all the rights 
 •and privileges of a surety as against any holder who knew the 
 fact. But, according to the common-law rule, the parties to 
 commercial paper sustain the liabilities and enjoy the privi- 
 leges and rights which are incident to their ostensible charac- 
 ters, and no others. According to this rule it is not permitted 
 to show by parol evidence that the drawer or indorser is the 
 
 iHorn V. Fuller, 6 N. H. 511 ; Pin- * Bowerbank v. Monteiro, 4 Taunt, 
 
 dar V. Ballow, 31 Vt. 539; Higgins v. 884; Montague v. Perkins, 23 Eng. 
 
 Ridgway, 153 N. Y. 130 ; Rich v. Star- L. & Eq. 516 ; Glidden v. Cliamber- 
 
 brick, 51 lud. 87; Glasscock v. Rand, Iain, 167 Mass. 486; United States v. 
 
 14 Mo. 550. Bank of Met, 15 Pet. 377; Merritt v. 
 
 2 Tiedeman on C. P., § 170 ; Hascall Duncan, 7 Heisk. 156. 
 
 V. Life Ass'n of America, 13 N. Y. 5 Foster v. Clifford, 44 Wis. 569; 
 
 S. 0. 153, 5 Hun, 151; Conro v. Port Goodwin v. McCoy, 13 Ala. 271; 
 
 Henry I. Co., 13 Barb. 27. Hunting v. Emmart, 55 Md. 265; 
 
 3 Tiedeman on 0. P., § 150 ; Wells Coflfman v. Campbell, 87 III. 98. 
 V. Brigham, 6 Cush. 6. 
 
EXCLUSION OF OEAL BY DOODMENTARY EVIDENCE. 315 
 
 principal debtor, and that the maker or acceptor is the accom- 
 modation party or surety, in order to bind the subsequent 
 bolder who knows the fact." ^ The weight of authority in 
 this country favors the English common-law rule. ^ "Where 
 there are two or more joint promisors of a promissory note, 
 who sign ostensibly as joint principals, a diflferent phase of the 
 same question is presented, viz., whether it can be shown by 
 parol evidence that one of them is surety and has the privi- 
 leges of a surety as against any holder who knows his real 
 character. Here the admission of parol evidence to prove 
 this fact would not result in reversing the ostensible relations 
 of the parties, making the apparent obligor a secondary obli- 
 gor, and the apparent secondary obligor primary." ^ 
 
 Whenever the terms of conditions are ambiguous and uncer- 
 tain of meaning, parol evidence is admissible to explain the 
 meaning of the terms.* It is necessary, in a suit against the 
 drawer, to aver and prove that he had known and had given 
 his consent to a conditional acceptance.^ And in all suits upon 
 bills accepted conditionally it is incumbent upon the holder to 
 prove the performance of the condition;^ but when the con- 
 dition is not incorporated into the written acceptance, and 
 appears in a separate paper, the burden of proving the condi- 
 tion is upon the acceptor.' 
 
 "Parol evidence is admissible to show from what time an 
 
 iTiedeman on C. P., §§62, 76; Fen- STiedeoian on C. P., §228; Car- 
 
 tiim V. Pocock, S Taunt. 193; Kaiser rique v. Biaty, 28 Ont. Eep. 175. 
 
 V. First Nat. Bank, 78 Fed. Rep. 281 ; * Tiedeman on C. P., § 277 ; Gal- 
 
 Carstairs v. Rolleston, 5 Taunt. 551 ; laglier v. Black, 44 Me. 99 ; Lamon v. 
 
 1 Marsh. 257 ; Nichols v. Morris, 3 B. French, 35 Wis. 37 ; Shackleford v. 
 
 & Ad. 41 ; Price v. Edmunds, 10 B. & Hooker, 54 Miss. 716; United States 
 
 C. 578 ; Rolfe v. Wyatt, 5 C. & P. v. Bank of Metropolis, 15 Pet 377. 
 
 181 ; Harrison v. Cortauld, 3 B. & Ad. * Taylor v. Newman, 77 Mo. 257. 
 
 37. 'Owen v. Lavine, 14 Ark. 389; 
 
 2 Farmers", etc. Bank v. Rathbone, Marshall v. Clary, 44 Ga. 511 ; Nagle 
 26 Vt. 19 ; Stephens v. Monongahela, v. Homer, 8 Cal. 353 ; Ford v. Angel- 
 88 Pa. St, 157 ; United States Nat rodt, 37 Mo. 50, 
 Bank v. First Nat Bank, 49 U. S. App. " Thomas v. Bishop, Cas. Temp. 
 67, 79 Fed. Rep. 296 ; Yates v. Don- Hardw. 1 ; Clarke v. Cocke, 4 East, 
 aldson, 5 Md. 389 ; Gano V. Heath, 36 57; Mason v. Hunt, Doug. 296; 
 Mich. 441 ; Summerhill v. Tapp, 52 Kaines v. Knightly, Skin. 54 ; Bower- 
 Ala. 227 ; Parks v. Ingram, 22 N. H. bank v. Monteiro, 4 Taunt 846. 
 283; Adle v. Metroger, 1 La. Ann, 
 254. 
 
316 EULES OF EVIDENCE. 
 
 undated paper is intended to operate.' It is also admissible to 
 show a mistake in the date, although proof of the mistake cuts 
 off a defense of the maker ; ^ but a different date could not be 
 proven by parol evidence against a purchaser for value who 
 relied upon the given date." "When an undated note or bill is 
 executed and delivered to the payee, the presumption of law 
 is that he is authorized by the maker to fill up the date, and 
 the maker will be bound by any date which the payee inserts, 
 at least to an innocent indorsee for value.* Any uncertainty 
 concerning the person who was intended to be the drawee 
 may be explained away by parol evidence, at least when the 
 ambiguity is latent." * 
 
 "Where the promise is to pay 'you,' without any further 
 designation of the payee, it would be a good non-negotiable 
 note, and it may be shown by parol evidence to whom the 
 note was payable.^ It may be permissible to show by parol 
 that the word ' currency ' was used in the sense of ' money ; ' ' 
 but in the absence of such evidence it is hardly proper for a 
 court to declare them synonymous. If the agent has the au- 
 thority to sign his principal's name to a note or bill, he may 
 sign it without aiBxing his own name; and if questioned after- 
 wards, it may be shown by parol evidence who signed the 
 principal's name."^ "If the agent should affix only his own 
 name to the commercial paper without his principal's name, it 
 will be his own paper, and he cannot show by parol evidence 
 that he intended to act for the principal and not for him- 
 self." ' 
 
 iTiedeman on C. P., §S 10, 15, 17; STiederaan on C. P., §85; Kinney 
 
 Cowing V. Altman, 71 N. Y. 441 ; v. Flinn, 2 R. I. 319 ; Shaokleford v. 
 
 Riuliardson v. Ellet, 10 Tex, 190 ; Lean Hooker, 54 Miss. 716. 
 
 V. Lozardi, 37 Mich. 434. 7 Haddock v. Woods, 46 Iowa, 435; 
 
 2 Drake v. Rogers, 32 Me. 534 ; Ger- Pilmer v. Branch Bank, 16 Iowa, 321 ; 
 mania Bank v. Distler, 11 N. Y. S. C. Huse v. Hamblin, 39 Iowa, 501. 
 
 633. 8 Morse v. Green, 18 N. H. 32; 
 
 3 Huston V. Young, 33 Me. 85. Haven v. Hobbs, 1 Vt 338; Odd Fel- 
 * Androscoggin Bank v. Kimball, lows v. First Nat. Bank, 42 Mich. 463 ; 
 
 10 Gush. 373; Mechanics', etc. Bank Cravens v. Gilliland, 63 Mo. 28; First 
 
 V. Schuyler, 7 Cow. 337. Nat. Bank v. Gay, 63 Mo. 33, 
 
 5Jackson v.Sill, llJohns. 201; Mo- STiedenian on C. P., §§ 85, 87; 
 Cullough V. Wainwright, 14 Pa. St. Arnold v. Stackpole, llMass.a7;Bed- 
 171 ; Cork v. Bacon, 45 Wis. 193. ford, etc. Ins. Co. v. Govell, 8 Met, 443; 
 
EXCLUSION OF ORAL BY DOOUMENTAKT EVIDE.VCB. 317 
 
 Parol evidence can never be admitted to exonerate an agent 
 who has entered into a written contract in which he appears 
 as principal, even though he should propose to show, if al- 
 lowed, that he disclosed his agency and mentioned the name 
 of his principal at the time the contract was executed.' When 
 the paper is signed by one as "agent," without disclosing the 
 name of the principal, the principal may be shown by parol 
 evidence and sued on the instrument. " This is particularly 
 true of the indorsements by agents with the word ' agent ' 
 added to their signatures.^ This rule is, however, peculiar to 
 the law of commercial paper, applicable only to negotiable 
 instruments. As between the original parties to the con- 
 tract, it can always, in the case of an undisclosed agency, be 
 shown who the real principal is, and suit may then be brought 
 against him instead of against the agent, who appears on the 
 face of the instrument to be the principal. And this is true 
 of agencies for corporations as well as of other agencies, al- 
 though the paper should have on its face very slight indica- 
 tions of being a corporate obligation. If there is sufficient 
 appearing on the face to make it doubtful whether it was in- 
 tended as a personal or as a corporate obligation, parol evi- 
 dence is admissible to show its true character.' "And where 
 there is no indication whatever on the face of the paper that 
 it was intended to be a corporate obligation, parol evidence 
 is still admissible to show who the real principal is, and to 
 hold him liable instead of the agent and supposed principal, 
 if the obligee so elects. But if the obligee prefers to look 
 to the party who is in fact an agent, but appears on the 
 face of the paper to be the principal, parol evidence is not 
 admissible in order to shift the liability to the real princi- 
 pal, the corporation for which he was acting, and to relieve 
 him."^ 
 
 Lyons v. Mitler, 6 Gratt. 440 ; Poole 2 Tiedeman on C. P., § 123 ; Green v. 
 
 V. Rice, 9 W. Va 73. Skeel, 9 N. Y. S. C. (2 Hun), 486. 
 
 1 Nash V. Towne, 5 Wall. 689 ; ' Mechanics' Bank of Alexandria v. 
 
 Magee v. Atkinson, 2 M. &W. 440; Bank of Columbia, 5 Wheat. 837; 
 
 Hyde v. Paige, 9 Barb. 151; Pentz McClelan v. Reynolds, 49 Mo. 314; 
 
 V. Stanton, 10 Wend. 271 ; Paige v. Richmond P. & F. R. Co. v. Snead, 19 
 
 Stone, 10 Met 169 ; Hypes v. Griffin, Gratt 354. 
 
 89 111. 134. 4 Tiedeman on C. P., § 123. 
 
318 EDLES OF EVIDENCE. 
 
 § 10. To show that writing apparently absolute is not.— 
 
 Parol evidence is admissible, especially in a court of equity, to 
 show that a writing which upon its face is apparently abso- 
 lute was intended only as a security, as that a deed apparently 
 absolute was only intended as a mortgage;' and the same is 
 true as to any transfer of personal property. 
 
 § 11. Statutes of frauds — Admissibility of parol evi- 
 dence.- — The question of the admissibility of conversations 
 preceding a written contract is not merely a question of evi- 
 dence; it is a question of contract. All negotiations, all con- 
 versations preceding a written contract, are conclusively pre- 
 sumed to be merged in it, and whether given in evidence or 
 not, under objection or without objection, they cannot con- 
 trol the written contract except in the sole case of fraud or 
 mistake. And where the real contract offered to be proved or 
 testified to is by its terras not to be performed within one 
 year, or otherwise void by the statute of frauds, it cannot bis 
 considered at all under any legal principle, whether there was 
 a proper objection jTiade to it or not.^ Evidence of a parol 
 executory contract without new consideration, to modify a 
 written contract under seal before breach, is inadmissible in 
 an action on the latter contract, where the latter conveys an 
 interest in land, and must, under the statute of frauds, be in 
 writing.' It is contrary to both the letter and spirit of the 
 statute of frauds to permit a contract coming within its pro- 
 visions to rest partly in parol ;^ and in the absence of proof 
 of part performance, evidence tending to show an oral agree- 
 ment, or an admission oif such an agreement, is incompetent, 
 as such an agreement if made would be void under the stat- 
 ute of frauds.' Thus, the better opinion is that a written con- 
 tract falling within the statute of frauds cannot be varied bjy 
 any subsequent agreement of the parties, unless such new 
 
 1 Stinohfield v. Milikin, 71 Me. 567 ; ' Thompson v. Poor, 57 Hun, 653, 
 Dispande v. Walbridge, 15 N. Y. 374; 51 N. Y. State Rep. 350; Lee v. New- 
 Brewster v. Davis, 58 Tex. 478 ; Camp- land, 164 Pa. St. 360 ; Carter v. Pitcher, 
 bell V. Dearborn, 109 Mass. 130. 87 Hun, 580. 
 
 2 Gordon v. Nieman et al., 118 N. Y. *Fortesque v. Crawford, 105 N. C, 
 152, 28 N. Y. State Rep. 616; Mor- 29. 
 
 ovvske et al. v. Rohrig, 53 N. Y. State ^ Wristen v. Bowles, 83 Cal. 84 
 Rep. 230. 
 
EXCLUSION OF ORAL BT DOOUMENTAET EVIDENCE. 319 
 
 agreement is in writing.' There are cases like Homer v. 
 Guardian Mut. Life Ins. Co.,^ where one party, by agreeing 
 to extend the time for a payment, has induced the other to 
 neglect payment at the appointed day, that it has been held 
 that the former could not take advantage of the neglect. So^ 
 also, there are cases like Dodge v. Crandall,' where, for a val- 
 uable consideration paid by the debtor, a person buys a mort- 
 gage already payable and agrees to extend the time of 
 payment. But where the original contract must have been in 
 writing, before any breach of it has arisen, it cannot be varied 
 by any parol agreement.^ Under the statute of frauds the 
 memorandum must contain within itself, or by reference to 
 other writings, all the essential elements of a contract, and 
 when that is the case neither party will be permitted to prove 
 that there was any other contract made than that one. But 
 where the memorandum of a' transaction does not contain 
 within itself, or by reference to other writings, all the sub- 
 stantial elements of a contract, but there has been such a 
 performance as to take it out of the operation of the statute 
 of frauds, parol evidence is admissible to supply omissions and 
 to establish contractual relations of the parties.' So a per- 
 son in possession of land, where his title is not in dispute or 
 involved in the cause, may testif}' that he owns it ; * and in de- 
 termining the question of a disputed boundary, recourse may 
 be had to every kind of evidence which is competent to prove 
 the existence of a fact in issue.' 
 
 § 12. Bills of lading. — Parol evidence as to bills of lading 
 are of a dual nature, being both receipts and contracts;' and, 
 so far as they are receipts, parol evidence is admissible to ex- 
 plain or vary them.' But so far as the bill expresses the act- 
 ual contract between the carrier and shipper, parol evidence 
 is not admissible to alter, vary or explain if Thus a bill of 
 
 i Swain v. Seamens, 76 U. S. 273. ^ Bexar County v. BerrcU, 77 Tex. 
 
 2 67 N. Y. 481. 182. 
 
 s 30 N. Y. 306. ^ Scott v. Yard, 46 N. J. Eq. 79. 
 
 * Thompson v. Poor et al, 57 Hun, SQj-aves v. Harwood, 9 Barb. 417. 
 285, 33 N. Y. State Eep. 371 ; Clark v. 9 O'Brien v. Gilchrist, 34 Me. 554; 
 
 Guess, 53 Ohio St. 238; Girard Life Hendricks v. Steamer Morning Star, 
 
 Ins. & T. Co. V. Cooper, 102 U. S. 529. 18 La. Ann. 353. 
 
 SRoutledge v. The Worthington lo "White v. Van Kirk, 25 Barb. 16; 
 
 Co., 119 N. Y. 592, 30 N. Y. State Rep. Cox v. Patersou, 30 Ala. 608; Arnold 
 
 195. V. Jones, 36 Tex. 835. 
 
320 EULES OF EYIDENOE. 
 
 lading which states that the goods are received in good order 
 is to that extent a receipt, and may be contradicted if there 
 were defects not known to the carrier when the receipt was 
 given.^ So any error or mistake as to the quantity of the 
 goods' may be shown.^ But it cannot be shown that an addi- 
 tional quantity of goods were to be shipped ; ' or that the rate 
 of transportation was to be conditional.* 
 
 § 13. Subsequent changes of contract. — It is competent 
 to show that parties in their dealings under a written contract 
 varied its terms by a subsequent parol agreement.^ And a 
 condition required by a written instrument under seal, that an 
 act be performed or evidenced,- may be waived by parol, and 
 the acts going to establish the waiver may be shown by parol.' 
 But it is different as to a sealed contract before a breach.' 
 Evidence that parties to a writing have, subsequent to its exe- 
 xjution, agreed orally to waive and dispense with some of the 
 provisions, and that they have actually complied with such 
 oral agreement, is not inadmissible as varying the terms of a 
 written contract.^ The time for the performance of a con- 
 tract, whether under seal or not, may be enlarged by parol' 
 Thus, evidence of a parol extension of the payment of a note, 
 made subsequent to the making of the note, is not inadmis- 
 sible as tending to vary or contradict the written contract." 
 But an alleged contemporaneous parol modification of a writ- 
 ten contract for the sale of land cannot be introduced as a de- 
 fense to an action to foreclose a vendor's lien for the purchase 
 price.'^ 
 
 § 14. Bills of sale — Parol evidence to vary. — Bills of sale 
 ^re contracts and presumed to embody all that was agreed 
 
 1 Blade v. Chicago, etc. R Co., 10 N. Y. 38, 33 N. Y. State Rep. 579 ; Hai- 
 Wis. 4. ris v. Murphy, 119 N. C. 34; Alscbu- 
 
 2 Graves v. Harwood, 9 Barb. 477. ler v. Schiff, 164 111. 398 ; Caliope Min. 
 
 3 Sayward v. Stevens, 3 Gray, 97. Co. v. Herisenger, 31 Colo. 483. 
 
 < White V. Van Kirk, 85 Barb. 16. 'Thompson v. Poor, 57 Hun, 285, 
 
 sConrod v. Fisher, 37 Mo. App. 38 N. Y. State Rep. 371; Harris v. 
 
 353; Robinson v. Hardy, 33 111. App. Murphy, 119 N. C. 34. 
 
 518; Nightingale v. Eiseman, 131 N. s^mith v. Roberts, 43 Minn. 343; 
 
 Y. 888, 30 N. Y. State Rep. 995; O'Keefe v. St. Francis Church, 59 
 
 Orange v. Palmer, 56 Hun, 481, 31 Conn. 551; Alschuler v. Schiff, 164 
 
 N. Y. State Rep. 618 ; Neiswanger v. 111. 398. 
 
 McClellan, 45 Kan. 599; Corson v. ^Triess v. Rider, 34 N. Y. 367. 
 
 ;Berson, 86 Cal. 433; Storer v. Taber, 1« Grace v. Lynch, 80 Wis. 166. 
 
 83 Me. 387. l^^ Stevens v. Flanagan, 131 Ind, 123. 
 6 O'Brien v. Prescott Ins. Co.. 134 
 
EXCLTISION OF OKAL BY DOCUMENTAEY EVIDENCE. 321 
 
 upon between the parties, and are subject to the same rules 
 as other contracts.* Thus, where a sale of property reduced 
 to writing contains all the elements requisite to show a con- 
 tract between the parties, but contains no warranty of the 
 goods, parol proof is not, in the absence of fraud, admissible 
 to show a warranty in fact;^ nor can any other contract be 
 interpolated into it ; ' as to show that it was intended as a 
 trust or an assignment ; * or that the sale was made by more 
 persons than those executing it; or that it was intended to 
 embrace more property than that named therein;' or that 
 property within its provisions was in fact excepted ; * or that 
 the title and possession of the property was not to rest in the 
 vendee immediately.' But in order to exclude such proof, the 
 bill of sale must contain all the essential elements of a con- 
 tract, leaving nothing open to parol proof; a mere bill of 
 goods, as that A. bought of B. certain articles at a certain 
 price, is not a contract, and is open to parol proof to show any 
 fact connected with and material to the transaction.' 
 
 § 15. Written assignments — Parol evidence as to. — 
 Where the property or choses in action are assigned by an 
 instrument in writing, which purports to embrace the entire 
 contract, it is subject at law to the general rule that parol evi- 
 dence is not admissible to vary or contradict it;' but in equity 
 such evidence is admissible to show that, although absolute in 
 form, it is not so in fact;*" as, that an assignment of a mort- 
 gage to one person, by name, was in fact intended for the. 
 benefit of another as well as himself." So fraud may be shown, 
 and the real consideration of an assignment may be shown.'^ 
 Evidence is not admissible to show that other property than 
 that named in the agreement was intended to have been em- 
 braced therein." 
 
 § 16. True party and character of party. — It is compe- 
 tent to prove by parol the relation of the parties to a con- 
 
 1 Champlin v. Butler, 18 Johns. 169. Silliman v. Tuttle, 45 Barb. 171 ; Filk- 
 
 « Houghton V. Carpenter, 40 Vt ing v. Whyland, 24 N. Y. 338 ; Dana 
 
 688. V. Fielder, 13 id. 40. 
 s Smith V. Gibbs, 44 N. H. 335. 9 Durgin v. Ireland, 14 N. Y. 833. 
 
 * Frasier v. Sneath, 3 Nev. 120. »" Rhodes v. Farmer, 17 How. (U. S.) 
 » McCloskey v. McCormick, 37 111. 464. 
 
 66. 11 Brown v. Isbel, 11 Ala. 109. 
 
 * Harrell v. Dorrance, 9 Fla. 490. '2 Galway's Appeal, 34 Pa. St S43. 
 7 Davis v. Moody, 15 Ga. 175. 13 Taylor v. Sayre, 24 N. J. L. 647. 
 sLindsley v. Lovely, 36 Vt 133; 
 
 21 
 
322 EULES OF EVIDENCE. 
 
 tract, and any intrinsic facts affecting the equities ; ' thus, 
 where one partner took a deed and gave back a mortgage, it 
 may be shown to have been a firm transaction.^ And where 
 a, policy is issued on property " held in trust," parol evidence 
 is admissible to show who are the owners, or who were in- 
 tended to be insured thereby ; ' and to show who are the ben- 
 eficiaries in a policy of life insurance ; * and to show that 
 one signer of a bond was a principal and another surety ; * 
 and as between indorsers, that a second indorser intended 
 to become the first ; ^ and that an indorser was to be liable 
 before the payee of a note ; ^ and that some person other than . 
 the grantee paid for the land mentioned in a deed ; ' and that 
 a contract under seal, made by the president of a bank in his 
 own name, was made for the use and benefit of the bank.* 
 It is also competent to prove a promise to pay by one sued 
 on a note, in connection with evidence that he adopted the 
 signature thereto as his own, although his name does not ap- 
 pear as the signer of the note."* But parol evidence is inad- 
 missible in an action upon a covenant of seisin to show that 
 one of the defendant's grantors was the intended grantee in 
 a deed upon which defendant's title depends, and which omits 
 to name a grantee." 
 
 §17. Written leases — Parol evidence as to.— Where a 
 lease contains no warranty that the premises are fit for oc- 
 cupation, it is not competent to show that the landlord rep- 
 resented them to be so." It is not competent to show by 
 
 iRoyes v. Arnold, 81 Hun. 476; «Wyckoff v. Wilson, 30 N. Y. 
 
 Carraher v. Mulligan, 54 Hun, 638, State Rep. 384. 
 
 28 N. Y. State Rep. 439; Mayer v. 'Deering v. Creighton, 19 0reg.ll8. 
 
 Frankfeld, 85 Hun, 214 ; Galbraith v. 8 Ducie v. Ford, 138 U. S. 587. 
 
 Bridges, 168 Pa. St. 325; Baker v. 9 Northern Nat. Bank v. Lewis, 78 
 
 Seavey, 163 Mass. 522 ; Cole v. Sat- Wis. 475. 
 
 sop R. Co., 9 Wash. 487. i" Salomon v. Hopkins, 61 Conn. 47; 
 
 ajohnson v. Donovan, 30 N. Y. Waddill v. Sabree, 88 Va. 1013i 
 
 State Rep. 30, 50 Hun, 215. Fonda v. Burton, 63 Vt. 355; Mvm- 
 
 3 California Ins. Co. v. Union Con- roe r. Williams, 35 S. C. 572; Liddell 
 
 gress Co., 133 U. S. 387. v. Sahline, 55 Ark. 637. 
 
 < Norriston Title, T. & S. D. Co. v. " Allen v. Allen, 48 Minn. 462. 
 
 John Hancock Mut Life Ins. Co., 133 "^ Harman v. Harraan, 70 Fed; Rep. 
 
 Pa. St 385. 894, 34 U. S. App. 816 ; Ninman f. 
 
 5 Williams v. Macatee, 86 Va. 681 ; Suhr, 91 Wis. 392; Stevens v. Ely, 14 
 
 Schofield V. Jones, 85 Ga. 816, 43 Alb. App. Div. 392; Dickson v. Hartman 
 
 L. J. 418, Mfg. Co., 179 Pa. St 348. 
 
EXCLUSION OF OEAL BY DOCUMENTARY ETIDENCB. d^rf 
 
 parol that certain other premises were intended to be in- 
 cluded in a lease; or that certain premises named therein 
 were intended to have been excluded ; or that more or less 
 rent was agreed upon ; ' or that it was to be paid at a differ- 
 ent time than that named in the lease ; or that the lease was 
 to commence at some other date ; or that other rights and 
 privileges than those named in the lease were given ; ^ or that 
 the landlord agreed to repair the premises. But parol evi- 
 dence is alway admissible to defeat the lease ; ' or to show 
 to what premises the lease applies.' It is a rule of construe^ 
 tion that in order to arrive at the real intention of the par 
 ties, and to make a correct application of the words and 
 language of the contract to the subject-matter thereof, and 
 the objects professed to be described, all the surrounding 
 facts and circumstances may be taken into consideration.^ It 
 may be shown that the lease was made for the benefit of A. 
 person other than the lessor; as, where a -lease was made by 
 an administrator in his own name, that it was in fact made 
 for the benefit of the estate.^ So, where no time when the 
 lease shall commence is named therein, it is competent to 
 show what time was fixed upon by parol ; ' or that the land- 
 lord knew the purpose for which the lessee intended to oc- 
 cupy the premises. Where in a lease it is stipulated that the 
 lessee " shall have all the personal property," it is proper to 
 show by parol whether he was to have it absolutely, or only 
 the use of it.' 
 
 § 18. Collateral contract by parol. — It is only such mat- 
 ters as concern a subject embraced in and covered by the 
 terms of a written contract that must be incorporated in it, 
 and that are deemed to be waived if not so incorporated, al- 
 though they have been the subject of prior negotiation and 
 agreement between the contracting parties. Thus, an agree- 
 ment by a lessor to put premises in repair before the term is 
 collateral to a lease, and is not required to be incorporated in 
 it, and parol evidence of such agreement is admissible. Had 
 
 •Tibbetts v. Percy, 24 Barb. 39. 5 Best on Ev. 198. 
 
 2 Sieiites v. Odier, 17 La. Ann. 153. « Russell v. Erwin, 41 Ala. 293. 
 
 3 Pierce v. Wilson, 34 AJa. 596. ' Leggett v. Harding, 10 Ind. 414. 
 * Harris v. Dub, 57 Ga. 77 ; Law- s Knapp v. Marlboro, 29 Vt. 382. 
 
 rence v. Hyman, 79 N. C. 309; Alger 
 V. Kennedy, 49 Vt. 109. 
 
Z2i BULKS OF EVIDENCE. 
 
 it been an agreement on the part of the lessor to make re- 
 pairs, or to keep the premises in repair during the term, it 
 would have fallen within the general rule ; but an independ- 
 ent agreement to put the premises in repair before the term, 
 and made as a condition of, or consideration for, the taking 
 of the lease, stands upon a different footing.^ It is never ad- 
 missible to show that, at the time a written contract was 
 made, an agreement by parol relating to the same subject- 
 matter was also entered into ; but a parol agreement collat- 
 eral to or independent of such written contract may be shown 
 when it relates to a matter about which the writing is silent;' 
 or to show a new and independent contract relating to the 
 same subject-matter subsequently entered into by parol, 
 whether it is a substitute for the old contract or is an addi- 
 tion to it.' If the new contract covers the whole subject- 
 matter of the written one, it supersedes and extinguishes it, 
 and it is merged in the parol contract.^ The general rule re- 
 quires the rejection of parol evidence when offered to cut 
 down or take away obligations entered into between the par- 
 ties and by them put in writing. It would be inconvenient 
 that matters in writing made by advice and on consideration, 
 and which finally import the certain truth of the agreement 
 between the parties, should be controlled by an averment of 
 the parties to be proved by uncertain testimony of slippery 
 memory. It does not apply, therefore, where the original 
 contract was verbal and entire and a part only reduced to 
 writing. Nor has it any application to collateral undertak- 
 ings. And these facts are always open to inquiry and may 
 be proved by parol.* In Jeffreys v. Walton * the contract for 
 the hire of a horse was in writing, and it was further agreed 
 by parol that accidents occasioned by his shying should be at 
 the risk of the hirer. The horse shied and in consequence 
 was injured. In a suit for damages it was held that parol 
 
 1 Mann v. Nunn, 43 L. J. (0. P.) * Bernard v. Sampson, 13 N. Y. 
 341 ; Clenighan v. MoFarland, 34 N. 561. 
 
 Y. State Eep. 624. »Fi]kins v. Whyland, 24 N. Y. 344; 
 
 2 Flanders V. Fay, 40 Vt. 316; Ke- Potter v. Hopkins, 25 Wend. 417; 
 ough V. McNltt, 6 Minn. 513. Grierson v. Mason, 60 N. Y. 894. 
 
 3 Cummings v. Putnam, 19 N. H. « 1 Stark. 385. 
 969 ; Van Buskirk v. Roberts, 31 N. 
 
 Y. 661. 
 
EXCLUSION OF OKAL BY DOOUMENTAEY EVIDENCE. 325 
 
 evidence of that portion of the agreement which was not in 
 writing was admissible. In Batterman v. Pierce' the action 
 was upon a note given for wood on plaintiff's land. The de- 
 fense was a verbal agreement made at the same time bj' 
 plaintiff, that if anything happened to the wood through his 
 means or by setting fire to his fallow he would be account- 
 able, and would guaranty the purchasers against any damages 
 in consequence of firing his fallow. The fallow was burned 
 and the wood also; The defense prevailed, the court holding 
 that the same result would follow whether the contract of 
 both parties had been written out, or whether all rested in 
 parol without writing, saying, " nor can it make any substan- 
 tial difference that the undertaking of one party has been re- 
 duced to writing while the engagement of the other party 
 remains in parol;" and, to the objection that the defense con- 
 tradicted the note, said there was "nothing in it." "The de- 
 fendants do not deny that they made just such a contract as 
 that on which the plaintiff seeks to recover, but they allege 
 that the plaintiff at the same time entered into an agreement 
 on his part which has subsequently been broken." The later 
 cases of Morgan v. Griffith ' and Erskine v. Adeane ' explain 
 the exceptions. They were considered in Johnson v. Oppen- 
 heim,* and there said to be within the rule which allows a 
 collateral agreement made prior or contemporaneous with a 
 written agreement, but not inconsistent with or affecting its 
 terms, to be given in evidence. In Wilson v. Deen* the 
 court seems to have gone out of the regular line of decisions. 
 For in Angell v. Duke' the plaintiff was held entitled to re- 
 cover damages for the breach by the lessee of an agreement 
 similar to that in Wilson v. Deen, the court holding it to be 
 collateral to the demise. So in Mann v. ISTunn,'' where a lessor 
 promised that if the proposed lessee would take the lease of 
 a house he would put the house in a state fit for habita- 
 tion, the promise was held to be collateral to the written lease 
 and provable bj'' parol evidence for the purpose of recover- 
 ing damages for the breach of it. Whether the matter relied 
 
 13 Hill, 171. e74N. Y. 531. 
 
 2 L. R. 6 Ex. 70, 6 L. R 10 Q. B. 174 
 
 3 L. R 8 Ch. App. 756. ' 43 L. J. (C. P.) 341. 
 * 55 N. Y. 280. 
 
326 EULES OF EVIDENCE. 
 
 upon to reduce or defeat the plaintiff's claim is set up by an- 
 swer, as in Spaulding v. Yandercook' and Batterman v. Pierce,' 
 or is made the subject of a cross-action, as in Morgan v. Grif- 
 fith' and Erskine v. Adeane,* can make no difference.' Thus, 
 m an action by an assignee of a bill of lading, indorsed by the 
 carrier to a bank as security for plaintiff's acceptance and 
 payment of an accompanying draft, where the defendants are 
 not parties to the draft or privies, the fact of acceptance of it 
 by the plaintiff is collateral to the issue, and the fact of ac- 
 ceptance may be proved by parol. A fortiori may a party to 
 it, in such a controversy, prove by parol that it had exist- 
 ence. So the fact of a tenancy may be proved by parol, 
 though there be a written lease.^ The principle seems to be 
 that the contents of a written instrument cannot be given in 
 evidence by parol when the contract contained in it is the 
 subject of the suit ; but the existence of the relation under 
 the instrument, and the fact of the existence of it, may be.' 
 
 § 19. Illustrations. — id) Parol evidence may be said to be 
 primary where the writing is not admissible to prove the 
 facts to establish which the oral proof is offered,* or where it is 
 offered to establish a matter collateral to or distinct from the 
 writing;' as, the consideration or failure of the consideration 
 of a note," guaranty or other contract or obligation, where the 
 consideration is not specifically stated in the instrument." 
 
 (5) Reputed ownership may be proved by parol in a case 
 where the question of title is collateral or incidental matter.'^ 
 
 (c) As between the immediate parties to a note, parol evi- 
 dence is admissible to annex qualifications, or a special con- 
 tract even." Thus, as between an indorser and his immediate 
 indorsee, it is competent to show a waiver of demand and no- 
 tice of non-payment made at the time of indorsing in blank.'* 
 
 1 3 Wend. 432. Oreg. 68 ; Sparks v. Rowlf s, 17 Ala. 
 
 2 3 Hill, 171. 211. 
 
 3 L. R. 6 Ex. 70. " Sheil v. Stark, 14 Ga. 439. 
 < L. R 8 Ch. App. 756. " Long v. Davis, 18 Ala. 801. 
 
 6 Chapin efc al. v. Dobson, 78 N. Y. n Merle v. Matthews, 26 Cal. 455. 
 74. i2Pelzer Mfg. Co. v. Sun Fire Office, 
 
 8 Rex V. Kingston-upon-Hull, 7 B. 36 S. C. 313 ; Hodson v. Goodale, 22 
 
 & C. 611. Oreg. 68. 
 
 7 Sprague v. Hosmer, 83 N. Y. 466. is Mendenhall v. Davis, 72 N. C. 150. 
 spelzer Mfg. Co. v. Sun Fire Office, "Dye v. Scott, 35 Ohio St. 194; 35 
 
 36 S. C. 213 ; Hodson v. Goodale, 23 Am. Rep. 604. 
 
EXCLUSION OF OEAL BY DOOUMENTAET EVIDENCE. 327 
 
 {d) Generally it may be said that parol proof of any col- 
 lateral parol agreement may be given which does not inter- 
 fere with the terms of the written contract, although it may 
 relate to the same subject-matter.' But evidence of any col- 
 lateral agreement is inadmissible, even between the parties, 
 which in any manner varies or changes the terms of the con- 
 tract.^ 
 
 («) Proof of the execution of a writing collateral merely to 
 the issue is admissible without its production or accounting 
 for its absence.' 
 
 {/) The rule as to the production of written communica- 
 tions or agreements has no application when they are merely 
 collateral to the issue. Thus, payment of contracts, and of 
 judgments even, may be proved by parol, although the}' may 
 be written or even record evidence of the fact.* But not to 
 show that a receipt was given, or that an indorsement of the 
 amount was made upon a note or upon an execution.' 
 
 ig) The rule is that, where the narrative of an extrinsic fact 
 has been committed to writing, the fact may nevertheless be 
 proved by parol. So where an oral and written notice to the 
 same effect are served upon a party, the written notice need 
 not be produced, unless the law makes a written notice im- 
 perative.' 
 
 (h) Evidence of a parol contract proving a distinct collat- 
 eral fact not inconsistent with a written contract is admis- 
 sible;' thus, there is no such necessity of the sleeping-car 
 service, or such sufficient reason for giving the berth-check 
 issued to passengers on a sleeping-car, upon the surrender of 
 their tickets, conclusive force as evidence of the contract be- 
 tween the passengers and the sleeping-car company, as to 
 exclude parol evidence of the agreement made between the 
 conductor and passenger.' 
 
 ' Ruggles V. Swanwick, 6 Minn. ' Daniels v. Johnson, 29 Ga, 207. 
 
 52&; Can- V. Dooley, 119 Mass. 294. 6 Smith v. Young, 1 Camp. 439; 
 
 2 Rodney v. Wilson, 76 Mo. 123, 29 Hadden v. People, 25 N. Y. 873. 
 
 Am. Rep. 499 ; Doolittle v. Ferry, 20 ' Stallings v. Gottschalk, 77 Md. 429. 
 
 Kan. 330. 8 Mann Boudoir Car Co. v. Dupre, 
 
 sCoonrod v. Madden, 126 Ind. 197; 54 Fed. Rep. 646, 47 Alb. L. J. 446; 
 
 State V. Ferguson, 107 N. 0. 841; Wichita U. of R. C. in U. S. v. 
 
 Smith V. Dinkelspiel, 91 Ala. 528. Schweiter, 50 Kan. 672 ; Vejar v. 
 
 i Kingsbury v. Moses, 45 N. H. 332. Mound City L. & W., 77 CaL 659. 
 
328 EULES OF EVIDENCE. 
 
 § 20, To show a deed to be a mortgage. — The rule that a 
 deed may, in an action between the parties to it, be shown by 
 parol evidence to have been given and received to secure the 
 payment of a debt, is firmly established.^ The burden of es- 
 tablishing oral defeasance to such a deed is an onerous one, 
 resting on whomsoever alleges it, and its existence and also 
 its precise terms must be established by clear and conclusive 
 evidence; otherwise the strong presumption that the deed 
 expresses the entire contract between the parties to it is not 
 overcome. And to convert a deed, absolute on its face, into a 
 mortgage by parol testimony, such testimony must be clear 
 and specific, of a character such as will leave in the mind of 
 a judge no hesitation or doubt, and failing this, the efforts to 
 impeach the legal character of the deed must be regarded as 
 abortive. The testimony must be entirely plain and convinc- 
 ing beyond reasonable controversy.^ Each case must be de- 
 termined upon its own special facts, but those should be of 
 a clear and decisive import.' The principle upon which parol 
 evidence is held admissible to show that a simple assign- 
 ment, although absolute in terms, was intended as security 
 merely, is the supposed incompleteness of the instrument; 
 and it is not regarded as contradicting the writing, but as 
 showing its purpose.* It grew up in the equity courts from 
 the efforts of equity judges to prevent forfeitures, to relieve 
 against fraud, and to enforce the equitable maxim, " once a 
 mortgage always a mortgage." It was supposed that the 
 evidence did not contradict the instrument, but simply showed 
 the purpose for which it was given, and that the instrument, 
 although purposely made absolute, was so made, however, 
 simply for the purpose of giving security to the party to 
 whom it was given, which was not really inconsistent with its 
 form. Hence it was conceived that parol evidence showing 
 the purpose was not an invasion of the general rule forbid- 
 ding such evidence to vary, explain or contradict a written 
 
 1 Jones on Mortgages, ch. 8 ; 3 Pom. Co., 149 N. Y. 51 ; Barber v. Lefavour, 
 Eq. Juris., § 1196. 176 Pa. St. 330 ; Minohrod v. UUman, 
 
 2 Lance's Appeal, 113 Pa. St 467; 163 111. 25; Ensign v. Ensign, ,130 
 Howland v. Blake, 97 U. S. 636 ; Cad- N. Y. 655, 31 N. Y. State Rep. 657. 
 man v. Peter, 118 id. 78; Barton v. 3 Campbell v. Dearborn, 109 Mass. 
 Lynch et al., 53 N. Y. State Rep. 540 ; 145. 
 
 May V. May, 158 III. 309 ; Mclntire v. * Truscott v. King, 6 N. Y. 147 ; 
 Mclntire, 163 U.S. 383; Christopher & Chister v. Bank of Kingston, 16 id. 
 T. St E. Co. V. Twenty-third Street R 336 ; Horn v. Keteltas, 46 id. 605. 
 
EXCLUSION Off OEAL BY DOOUMENTAET EVIDENCE. 329 
 
 instrument. Where a deed is given as security merely, for 
 an indebtedness of the grantor to the grantee, that fact may 
 be proved by parol evidence ; but that is an exception to the 
 general rule that the terms of a deed cannot be changed by 
 oral evidence. It has never been held that a deed can be so 
 far contradicted by parol as to show that it was not intended 
 to operate at all, or that it was the intention or agreement of 
 the parties that the grantee should acquire no rights what- 
 ever under it, or that he should reconvey to the grantor on his 
 request without any consideration.^ This rule does not hold 
 good where the instrument was not an assignment simply, 
 but a contract containing mutual agreements.^ 
 
 § 21. Conditions upon which a writing was delivered. — 
 Instruments not under seal may be delivered to the one to 
 whom, upon their face, they are made payable, or who, by 
 their terms, is entitled to some interest or benefit under them 
 upon conditions, the observance of which is essential to their 
 validity. And the annexing of such conditions to the deliv- 
 ery is not an oral contradiction of the written obligation, 
 though negotiable, as between the parties to it or others 
 having notice. It needs a delivery to make the obligation 
 operative at all; and the effect of the delivery and the extent 
 of the operation of the instrument may be limited by the 
 conditions with which delivery is made.' Oral proof of a 
 condition precedent to the validity of a written contract, if 
 not contradictory of its terms, is always admissible, because, 
 like evidence of fraud and duress, it goes, not to the altera- 
 tion, but to the defeat of the contract. Evidence of the non- 
 compliance with an extrinsic oral stipulation upon which the 
 validity of the paper as an operative instrument is suspended 
 is simply proof that there was no contract, and so is consistent 
 with the familiar principle.^ This rule should be cautiouslj'^ 
 applied to avoid mistake or imposition, and confined strictly 
 to cases within its reason. Certainly the general rule, which 
 excludes evidence of parol negotiations and undertakings when 
 offered to contradict or substantially vary the legal import of 
 
 iHutchins v. Hutching, 98 N. Y. 56. *Norris v. Tiffany, 56 N. Y. State 
 
 2Marsh v. McNair, 99 N. Y. 174. Eep. 406 ; Burke v. Dulany, 156 U. S. 
 
 3EeynoIds v. Robinson, 18 N. Y. 378; Ware v. Allen, 128 id. 580; Cul- 
 
 235; Benton v. Martin, 52 id. 570. bertaon v. H. Witbeok Co., 137 id. 336. 
 
330 EULES OF EVIDENCE. 
 
 a written agreement, is not to be questioned or disturbed. It 
 is so well settled in reason, policj' and authority as not to be 
 a proper subject of discussion. It has full application, how- 
 ever, within very narrow limits. In the first place, it applies 
 only in controversies between parties to the instrument,^ and 
 between them is subject to exceptions upon allegations of 
 fraud, mistake, surprise or part performance of the verbal 
 agreement. Nor does it deny the party in whose favor that 
 agreement was made the right of proving its existence by 
 way of defense in an action upon the written instrument, under 
 circumstances which would make use of it, for any purpose in- 
 consistent with that agreement, dishonest or fraudulent.^ A 
 party sued by his promisee is always permitted to prove by 
 parol that the instrument was delivered even to the payee to 
 take effect only on the happening of some future event,' or that 
 its design and object were different from what its language, 
 if alone considered, would indicate.* He may also show that 
 the instrument relied upon was executed in part performance 
 only of an entire oral agreement ; ° or that the obligation of 
 the instrument has been discharged by the execution of a 
 parol agreement collateral thereto ;* or he may set up any 
 agreement in regard to the instrument which makes its en- 
 forcement inequitable. In Juilliard v. Chaffee' the apparent 
 obligation incurred by the defendant under a paper put in 
 evidence by the plaintiff was to pay the sum named upon de- 
 mand in consideration of so much money then borrowed ; but 
 the evidence disclosed that it was only part of a prior parol 
 arrangement, by the terms of which the payees were to ad- 
 vance money in anticipation upon debts owing by them, and 
 on defendant's promise that it should be so paid in discharge 
 of those debts, and which also provided for a return of the 
 
 ' New Berlin v Norwich, 10 Johns. Hutcbins v. Hubbard, 34 N. Y. 24 ; 
 
 329. Barker v. Bradley, 42 id. 316; Grier- 
 
 2 Martin v. Pycroft, 3 De G., M. & son v. Mason, 60 id. 394; De Laval- 
 G. 785, 795 ; Jervis v. Berridge, L. E. lette v. Wendt, 75 id. 579 ; 31 Am. 
 8 Ch. App. 351. Eep. 494. 
 
 3 Seymour v. Cowing, 1 Keyes, * Chapin v. Dobson, 78 N. Y. 74 ; 
 533 ; Benton v. Martin, 52 N. Y. 570 ; 34 Am. Rep. 512. 
 
 Eastman v. Shaw, 65 id. 533. * Grossman v. Fuller, 17 Pick. 171. 
 
 * Denton v. Peters, L. R 5 Q. B. • 92 N. Y. 539. 
 474; Blossom v. GriEBn, 3 Kern. 569; 
 
EXCLtrSION OF ORAL BT DOC0MENTAEY EVIDENCE. 331 
 
 paper to the defendant when the money was so applied. The 
 note did not constitute the agreement. It was evidence of 
 part of the agreement, and the maker was properly allowed 
 to show in defense the whole transaction;' and when that 
 was shown, the defense was made out, not by controlling the 
 contract indicated by the writing, but by a collateral agree- 
 ment with which it was incidentally connected. In all these 
 cases a distinction is recognized between an agreement for the 
 legal discharge of a contract and one which destroys its orig- 
 inal legal effect either by contradicting its terms or substitut- 
 ing a distinct and independent agreement. 
 
 § 22. lUastrations. — (1) Evidence of a parol agreement 
 made at or prior to the time of a written agreement and as a 
 condition of its delivery is not admissible when it does not 
 fall within any of the exceptions to the rule forbidding oral 
 evidence to vary the terms of a written contract.^ Thus it is 
 inadmissible to show whether a deed which has been delivered 
 shall take effect absolutely or only on condition of the grant- 
 or's death.' 
 
 (2) An oral condition that an order shall " be no sale " if 
 the market price is not as it is represented is a condition sub- 
 sequent and not precedent, and cannot be proved to affect 
 the terms of an unconditional written order;* or that promis- 
 sory notes delivered to the payee were not to take effect upon 
 the fulfillment of a certain condition.^ 
 
 (3) A father, having conveyed lands directly to a child, can- 
 not show by parol that he intended a resulting trust to him- 
 self." And evidence of a parol agreement creating an express 
 trust in favor of a husband in lands purchased by him, but 
 conveyed to his wife, is inadmissible ; ' or that an absolute 
 conveyance was intended to operate as a conditional sale, or 
 a sale with the right to repurchase ; * or to show that the con- 
 
 1 1 Greenl. Ev., g 284a. ter v. Ohlander, id. 441 ; Cunning- 
 
 2 Genett v. Delaware & H. C. R ham v. Martin, 46 Kan. 353. 
 
 Oo., 123 N. Y. 505; 34 N. Y. State « Annis v. Wilson, 15 Colo. 236. 
 
 fiep. 246. ' Montgomery v. Craig. 128 Ind, 48 ; 
 
 SMorey v. Heney, 86 Cal.471 ; Hub- Gowdy v. Gordon, 122 id. 533. 
 
 bard v. Greeley, 84 Me. 840. ^ Peagler v. Stabler, 91 Ala. 308 ; 
 
 'Lilienthal v. Suffolk Brew. Co., Thomas v. Scutt, 137 N, Y. 133; 38 
 
 154 Mass. 185 ; 26 Am. St. Rep. 234. N. Y. State Rep. 693. 
 
 » Garner v. Fite, 93 Ala. 405 ; Dex- 
 
332 EULES OF EVIDENCE. 
 
 sideration of notes bought by a "bona fide indorsee was a con- 
 ditional one ; ' or that a deed was given upon a condition that 
 the grantee should pay certain notes of the grantor;^ or in a 
 suit on the written subscription of a stockholder in a corpo- 
 ration that the subscription was a conditional one.' 
 
 (4) Parol evidence is admissible to show a conditional de- 
 livery of an instrument which is not a deed, and does not 
 relate to the transfer of the possession of land.'' Thus it is 
 admissible to show that a contract was not to become valid 
 until the signing of a certain other contract by another per- 
 son ;* or that a real-estate agent was invested by his principals 
 with the title to property for convenience in making sales 
 thereof, and not as absolute purchaser; * or that a conveyance 
 was in trust to sell for the vendor's benefit;' or that a deed 
 is in fact a mortgage ; ^ or that a deed-poll in consideration of 
 love and affection was intended to operate as a will;' or that 
 the condition on which a note was signed was never performed, 
 and that no valid delivery thereof has been made;^" or that a 
 note was given with the express understanding that it should 
 remain in the hands of a third person awaiting a settlement ; " 
 or that a mortgage absolute on its face was given for future 
 advances.^^ 
 
 (5) A verbal condition accompanying a written lease of the 
 upper floors of a building, the only access to which is by a 
 hall and stairs, that the lessor will not rent the lower floor for 
 a saloon, or permit a door to be cut in the wall between the 
 hall and the lower floor, constitutes a part of the considera- 
 tion of the lease, and is admissible in evidence in a suit to 
 abate a door cut in violation of such condition." 
 
 (6) An implied or resulting trust may be established by 
 
 1 Haffron v. Cunningham, 76 Tex. 8 McNeel v. Auldridge, 34 W. Va. 
 313. 748; McLean v. Ellis, 79 Tex. .398; 
 
 2 Boozer v. Teague, 27 S. C. 348. Smith v. Smith, 81 id. 45. 
 
 3 Masonic Temple Ass'n v. Channell, 9 Re Slinn, L. R 15 P. D. 156. 
 
 43 Minn. 353. " Solenberger v. Gilbert, 14 Va. L. J. 
 
 ■i Blewitt V. Boorura, 59 N. Y. Supr. 406. 
 
 Ct. 381, 39 N. Y. State Rep. 344. " Lipcomb v. Lipcomb, 33 S. C. 343. 
 
 5 Round Lake Ass'n v. Kellogg, 58 12 Louisville Banking Co. v. Leonard, 
 Hun, 605, 34 N. Y. State Rep. 405. 11 Ky. L. Rep. 917. 
 
 6 Russell V. Andre, 70 Wis. 108. " Lynch v. Hunneke, 46 N. Y. State 
 ' Bitely v. Bitely, 85 Mich. 227. Rep. 868. 
 
EXCLUSION OF DEAL BY DOCUMENTAET EVIDENCE. 333 
 
 parol evidence of the transaction out of which it arises,^ and 
 to prove a trust in lands created by parol after it has been 
 terminated by a conveyance of the property by the trustee.' 
 
 (7) Parol evidence is admissible, even in the absence of 
 fraud or mistake, to show that a deed absolute in form, con- 
 veying the grantor's interest in certain patents, the express 
 consideration of which is nominal, was executed in further- 
 ance of a prior contract for the manufacture and sale of arti- 
 cles patented by the grantor, the grantee's interest in which 
 was to be reconveyed upon his electing to terminate the con- 
 tract.' 
 
 (8) In an action upon a written lease for rent payable in 
 advance, it may be shown that the lease was executed and 
 delivered upon a parol agreement that it should not take effect 
 unless possession was delivered at a certain tirae.^ A deed, 
 assignment or bill of sale absolute on its face may be shown 
 tohave been given as security for the payment of a debt.' 
 
 § 23. Immovables^ inscriptions^ etc. — Inscriptions on 
 monuments, tombstones, walls, surveyor's marks upon trees, 
 or notices affixed to boards and other immovables, are evi- 
 dence. It must be remembered, however, that in the case of 
 notices so affixed to walls, etc., it must appear that the docu- 
 ment was affixed to the freehold and could not easily be re- 
 moved. This is upon the ground that the production of 
 primary evidence is physically impossible, and that public con- 
 venience requires that such evidence should be received, and 
 stands upon the same ground that copies of documents depos- 
 ited in a foreign country when the laws or established usages 
 of such country will not permit its removal. The same rule pre- 
 vails as to the books of custom-houses.' The principle of law 
 is that, where you cannot get the best possible evidence, you 
 must take the next best; and where the law has laid down 
 that you cannot remove the documents in which the writing 
 is made, you may prove whose handwriting it was. 
 
 1 Ripley v. Seligman, 88 Mich. 107. Rep. 674 ; Lawrence v. Phillips, 67 
 
 2 Silvers v. Potter (N. J. Ch.), 48 N. Hun, 61, 51 N. Y. State Rep. 374. 
 
 J. Eq. 539. 5 Lovejoy v. Chapman, 23 Oreg. 38 ; 
 
 3 Barry v. Colville, 129 N. Y. 303, Shad v. Livingston, 81 Fla. 89 ; Davis 
 41 N. Y. State Rep. 628 ; Conant v. v. Hopkins, 18 Colo. 153. 
 Koseborough, 139 111. 383. « Rex v. King, 3 T. R. 234. 
 
 ♦ Corn V. Rosenthal, 48 N. Y. State 
 
334: EULES OF EVIDENCE. 
 
 § 24. Warranty. — "Where a contract of sale is evidently 
 incomplete, being an informal bill or receipt and not intended 
 to embrace the entire contract, parol evidence of a warranty 
 of the property is admissible.' Bat the rule is' that where a 
 contract for the sale of property has been reduced to writing 
 and is evidently complete in itself, it is not competent for the 
 parties to engraft new terms or conditions thereon in the 
 form of a warranty.^ Thus, proof of a contemporaneous war- 
 rant is inadmissible in an action upon a written contract for 
 ■the sale of machinery.' But a memorandum on the bottom of 
 a bill of a meat-cooler in these words, " Guaranty : The above 
 cooling room is guarantied to keep fresh meat a satisfactory 
 length of time if properly iced and regulated," will not exclude 
 parol proof b}' the purchaser that a different contract of war- 
 ranty was made at the time of the sale.* 
 
 § 25. Mistake. — Parol evidence is admissible to show a mis- 
 take in a deed or other writing.' Thus, parol evidence is ad- 
 missible to prove that a written commercial document was 
 given through error.^ But in the absence of ambiguity oral 
 evidence cannot be introduced to explain or vary a written 
 instrument which is complete, although by mistake it does not 
 express the contract which the parties intended to raake.^ 
 Thus, although parol evidence is admissible to reform an in- 
 strument to make it express the intention and contract of the 
 parties, it is inadmissible to prove a contemporaneous parol 
 agreement which would impose restrictions, burdens and diities 
 upon the other party to it inconsistent with the consideration 
 
 1 Cbapin v. Dobson, 78 N. Y. 714 ; 147 ; American Electric Constr. Oo. t. 
 
 Henson v. Henderson, 31 id. 334 ; Per- Consumers' Gas Co., 47 Fed. Rep. 43. 
 
 rins V. Cooley, 39 N. J. L. 449 ; At- * Eichey v. Daeraicke, 86 Midi. 647. 
 
 water v. Clancy, 107 Mass. 369. » Fudge v. Payne, 85 Va. 17 ; Con- 
 
 2Ethridge v. Balin, 73 N. C. 213; lin v. Masecar, 80 Midi. 139; Davis 
 
 Frost V. Blauchard, 97 Mass. 155; v. Ely, 104 N. C. 16; Fox's Appeal, 
 
 Namberg v. Young, 35 N. J. L. 381 ; 141 Pa. St. 366. 
 
 Most V. Pierce, 58 Iowa, 579 ; Kich v. ^ Schwersenski v. Vineberg, 19 Can. 
 
 Forsyth, 41 Md. 389. Sup. Ct. 343 ; Nichols v. Scrantoh Steel 
 
 3 Hungerford Co. v. Rosenstein, 46 Co., 64 Hun, 633, 46 N. Y. State Rep. 
 
 N. Y. State Rep. 195 ; Lamson Con- 58 ; Sparks v. Brown, 40 Mo. App. 
 
 solidated Store Ser. Co. v. Hartung, 539; Gill v. Pelkey, 53 Ohio St. 358. 
 
 46 N. Y. State Rep. 191 ; McMullen v. 7 Van Horn v. Van Horn (N. J. Err. 
 
 Carson, 48 Kan. 263; Harrow Spring & App.), 49 N. J. Eq. 327. 
 Co. V. Whipple Harrow Co., 90 Mich. 
 
EXCLUSION OF OEAL BY DOCUMENTAEY EVIDENCE. 335 
 
 expressed and the intention of the parties as expressed in the 
 instrument itself.^ 
 
 § 26. Fraud — Parol evidence of. — Evidence of fraud in 
 the making of a contract is not affected by the fact that the 
 whole contract is expressed in writing.^ A written agreement 
 may be modified, explained, reformed or set aside by parol 
 evidence of fraud by one of the parties at the time of the ex- 
 ecution of the writing, which induced the other party to sign 
 it.' Thus, proof of a parol agreement relating to lands is ad- 
 missible to show fraud.* So where the seller of a chattel fraud- 
 ulently inserted in the contract a different quality or kind of 
 chattel than that actually contracted for.* But the fraud which 
 will let in parol evidence to vary the terms of a written con- 
 tract must be fraud in its procurement going to its validity, or 
 some breach of confidence in using a paper delivered for one 
 purpose bjJ^ fraudulently perverting it to another.^ Thus, parol 
 evidence of the declarations of a grantor prior to the deed is 
 admissible to show fraud or estoppel.' But in an action at law 
 a party cannot show that an agreement or paper is good in 
 part and void in part on the ground of fraud.^ 
 
 § 27. When written instrument may be contradicted. — 
 Any person other than a party to a document or his repre- 
 sentative in interest may, notwithstanding the existence of 
 any document, prove any fact which he is otherwise entitled 
 to prove, and any party to any document or any representa- 
 tive in interest of any such party may prove any such fact 
 for any purpose other than that of varying or altering any 
 right or liability depending upon the terms of the document.*' 
 Thus, the rule that parol evidence will not be received to 
 
 1 Alabama Midland R. Co. v. Brown, 5 Kranich v. Sherwood, 93 Mich. 
 
 98 Ala. 647. 397. 
 
 2Scrogin v. Wood, 87 Iowa, 97. SHukill v. GuflEy, 37 W. Va. 435. 
 
 3 Sidney School Furniture Co. v. 'Valkenand v. Drum, 154 Pa. St. 
 
 Warsaw Tp. School District, 130 Pa. 616 ; Mattes v. Frankel, 47 N. Y. State 
 
 St. 76 ; Mayor v. Dean, 115 N. Y. 556, Rep. 507, 65 Hun, 208. 
 
 36 N. Y. State Rep. 375 ; Stanhope v. « Bigelow v. Wilson, 87 Iowa, 628. 
 
 Swafford, 80 Iowa, 45 ; State v. Cum- » Dig. Law of Ev., art. 93 ; Lowell 
 
 mings, 52 N. J. L, 77 ; Bonds v. Smith, Mfg. Co. v. Safeguard F. Ins. Co., 88 
 
 106 N. C. 558. N. Y. 599 ; Payne v. Crawford, 97 
 
 4Wainwright v. Talcott, 60 Conn. Ala. 604; Leslie v. Leslie, 50 N. J. 
 
 43. Eq. 155 ; Doctor v. Darling, 53 N. Y. 
 
 State Rep. 331, 68 Hun, 70. 
 
336 EULES OF EVIDENCE. 
 
 vary, explain or control a written instrument is confined en- 
 tirely to actions between the parties thereto or their privies 
 in interest. In actions between strangers thereto the real 
 facts may be shown, or any fact that changes the legal effect 
 of the contract or shows the real intention, object or purpose 
 of the contract ; ^ and this is the rule also in cases where the 
 contract is offered in evidence in an action between a stranger 
 to the contract and one of the parties thereto;^ nor does the 
 general rule apply in actions between sureties, as they are not 
 regarded as estopped, by the provisions of the contract, from 
 showing any agreement between themselves or the party for 
 whom they became surety. The rule is confined exclusively to 
 the parties actually contracting as principals.' Therefore a 
 written instrument may be contradicted by the party making 
 it when offered in evidence in a suit to which a stranger is a 
 party. In an action between third parties a grantor is a com- 
 petent witness to impeach his own deed, under which one of 
 them claims.* As the rule as to varying or altering the terms 
 of a written contract does not apply to any writing except a 
 contract between the parties to the suit, a mere statement 
 in writing of certain facts, not constituting a contract or in- 
 ducing action by another, will not preclude parol evidence 
 inconsistent therewith.' 
 
 1 Robinson v. Mosely, 93 Ala. 70; 200; Forbash v. Goodwin, 35 N. H. 
 Clerihen v. West State Bank (Minn.), 425. 
 
 53 N. W. Rep. 967. * Reeves v. Brayton, 36 S. C. 384 
 
 2 Fox V. McComb, 63 Hun, 633, 45 6 Beardsley v. Gaylor, 65 Hnn, 034, 
 N. Y. State Rep. 754; Barrida v. Sils- 48 N. Y. State Rep. 53; Kreusberger 
 bee, 21 How. (U. S.) 146. v. Wingfield, 96 CaL 251 ; Woolworth 
 
 3 National Car & L. Builder v. Cy- v. McPherson, 55 Fed. Rep. 558 ; Car- 
 clone Steam Snow Plow Co., 49 Minn, penter v. Scott, 86 Iowa, 563. 
 
 135; Tiiomas v. Truscott, 53 Barb, 
 
CHAPTEE XI. 
 
 BURDEN OF PROOF. 
 
 § 1. Preliminary observations. 
 
 2. Burden of proof — In general. 
 
 3. Illustrations. 
 
 4. Conditions, exceptions, waiver. 
 
 5. SufiScient evidence to go to jury. 
 
 L CIVIL DAMAGES, 
 
 n. PENALTIES. 
 
 m. LIMITATION OF ACTIONS. 
 
 IV. NEGLIGENCE. 
 
 6. In general. 
 
 7. Presumption of negligence. 
 
 8. Contributory negligence. 
 
 9. Master and servant. 
 
 10. Sleeping-car — Money on pas- 
 
 sengers. 
 
 11. Implied admissions of negli- 
 
 gence. 
 13. Negligent or wrongful acts 
 committed abroad. 
 
 13. Telegraph messages — Prima 
 
 facie case — Notice. 
 
 V. FRAUD. 
 
 14. SuflSciency of proof to carry 
 
 case to jury. 
 
 15. Innocence — Presumption of, in 
 
 civil actions. 
 
 16. Preponderance of proof suffi- 
 
 cient. 
 
 17. Continuous fraudulent trans- 
 
 actions. 
 
 18. Fraud to do away with a writ- 
 
 ten instrument 
 
 19. Other frauds. 
 
 20. Intent — When party may 
 
 swear to it. 
 
 21. Fictitious consideration fraudu- 
 
 lently made up. 
 
 i 22. Burden of proof on creditor to 
 show fraud. 
 
 23. To set aside an assignment for 
 
 creditors. 
 
 TI. CONVERSION, DEMAND. 
 TIL DEFENSES, 
 
 24. Illustrations. 
 
 25. Illegality of contract 
 
 26. Bona fide holder — In general. 
 
 27. Defenses to, how proved. 
 
 28. Usury. 
 
 29. Constructive fraud — Burden 
 
 of proof. 
 
 VIIL PAYMENT. 
 IX. ASSIGNMENT. 
 
 30. In general. 
 
 31. Presumed when. 
 
 32. Consideration of,. 
 83. Gift 
 
 34. Execution and delivery of. 
 
 35. By trustees, executors, etc. 
 
 X CORPORATIONS AND CORPORATE 
 
 ■ EXISTENCE. 
 
 36. De facto. 
 
 37. Estoppel by and against 
 
 38. Powers of corporations. 
 
 39. Contracts of. 
 
 40. Torts of. 
 
 41. Books and papers of. 
 
 XI. EXECUTORS AND ADMINISTRATORS. 
 
 42. Title. 
 
 43. Acts and declarations of repre- 
 
 sentatives. 
 
 XII. TREASON, PERJURY, ETU 
 
 44. Plurality of witnesses, 
 
 Xm. TO CHARGE NEXT OF KIN WITH 
 ANCESTOR'S DEBT. 
 
338 
 
 BULKS OF EVIDENCE. 
 
 XIV. ADVANCEMENTS. 
 XV. WILLS. 
 
 45. Extrinsic evidence affecting. 
 
 XVL ADEMPTION AND LAPSING. 
 XVn. CITIZENSHIP AND ALIENAGE. 
 
 4.3. In genei'aL 
 
 XVin. DEATH — PROOF OP. 
 XIX MARRIAGE — PROOF OF. 
 XX. ISSUE AND LEGITIMACY. 
 
 47. Issue. 
 
 48. Legitimacy. 
 
 XXL HUSBAND AND Vl^IFE. 
 
 49. Title — Law of placa 
 
 § 50. Agency of one for the other. 
 51. "Wife's title. 
 58. Actions by and against wife. 
 
 53. Actions by and against hus- 
 
 band. 
 
 XXIL PUBLIC OFFICERS. 
 
 54. Title to office — When strict 
 
 proof of is necessary. 
 
 55. When strict proof of is not nec- 
 
 essary. 
 
 XXin. PARTNERS AND JOINT CON- 
 TRACTORS. 
 
 56. Joint contractors. 
 
 57. Partners — Proof of partnership. 
 
 58. Partners — How far liable. 
 
 59. Dissolution — Eflfect of. 
 
 § 1. Preliminary observations. — Every issue consists of an 
 allegation of fact made by one party and denied by his oppo- 
 nent; and the general rule as to the onus of proof and the 
 consequent obligation of beginning is this : That the proof of 
 such fact lies on the party who alleges it, not on him who de- 
 nies it : ei incumhit prohatio qui dicit non qui negant. And it 
 is immaterial whether the allegation which is denied is couched 
 in aflSrmative or in negative terms. 
 
 Even in the case of statutes making it criminal to commit 
 some act without some particular ground of justification, it has 
 sometimes been held, in accordance with the general principle, 
 that proof of the want of justification lay on the prosecution. 
 Thus, in the case of statutes making it criminal to kill deer, 
 take fish, cut timber, or to do certain other acts " without the 
 consent of the owner," it was held that, as the absence of con- 
 sent was an essential part of the definition of the crime, it lay 
 on the prosecution to prove it.^ But in each case it will de- 
 pend on the construction of the particular statute on whom 
 the burden of proof lies in respect of any such condition. 
 
 A defendant may meet a claim against him either by deny- 
 ing it, which is called a traverse, or by admitting and pleading 
 other matter which in law is an answer to it, called a confes- 
 sion and avoidance, or he may both traverse it and in the alter- 
 native plead matters which avoid the eflfect of it if it be true. 
 If the defendant traverse any material part of the allegations 
 
 iR. V. Allen, etc., 1 Moo. C. C. 154; R. v. Hazy, 3 C. & P. 458. 
 
EUEDEN OF PEOOI'. 339 
 
 in the plaintiff's claim, the plaintiff has the right to begin ; and 
 the rule applies not only where there is a denial of any part 
 of the cause of action, but also where any consequent claim to 
 damages is in issue, so that if these are unliquidated and are 
 not admitted to the amount claimed, the plaintiff will be en- 
 titled to begin. '^ 
 
 If the defendant confesses the whole of the allegations com- 
 prised in the plaintiff's claim and seeks to avoid their effect 
 by an affirmative case of his own, the right to begin belongs 
 to him. 
 
 "Whenever either party claims the right to begin he thereby 
 undertakes to offer evidence on that issue in respect of which 
 he has claimed it;^ he cannot claim the right to begin in the 
 sense of merely addressing the jury on the issue. 
 
 Where there are several issues, some of which are upon the 
 plaintiff and some upon the defendant, the plaintiff may begin 
 by proving those only which are upon him, leaving it to the 
 defendant to give evidence in support of those issues upon 
 which he intends to rely ; and the plaintiff may then give evi- 
 dence in reply to rebut the facts which the defendant has ad- 
 duced in support of his defense.^ If, however, the plaintiff in 
 such a case gives in the first instance any evidence on the issues 
 which lie on the defendant, he is bound to complete his whole 
 case, and will not be entitled to call a portion of his evidence 
 in reply.* 
 
 § 2. Burden of proof —In general.— Sir J. Stephen, in bis 
 Digest of the Law of Evidence,'^ states the general rule as to the 
 burden of proof as follows: "Whoever desires any court to 
 give judgment as to any legal right or liability dependent on 
 the existence or non-existence of facts which be asserts or denies 
 to exist must prove that those facts do or do not exist.^ The 
 burden of proof in any proceeding lies at first on that party 
 against whom the judgment of the court would be given if no 
 evidence at all were produced on either side, regard being had 
 
 1 Mercer v. Whall, 5 Q. B. 447. §§ 265, 266; Starkie, §g 585, 586; 1 
 
 2R. V. Tooke, 25 St. Tr. 446, 447; Greenl. Ev., •§ 74; 1 Whart. Ev., 
 
 Smartv. Eayner, 6C. &P. 731; Oake- g§ 353-356; Costigan v. Mohawk & 
 
 ley V. Ooddeen, 2 F. & F. 1. H. R. R. Co., 2 Denio, 609, 616 ; Pusey 
 
 3 Shaw V. Beek, 8 Ex. 393. v. Wright, 31 Pa. St. 387, 394 ; McGrell 
 
 < Browne v. Murray, Ry. & M. 254. v. Buffalo OflSce Bldg. Co., 153 N, Y, 
 
 5Art. 93, etc. 265. 
 6 1 Ph. Ev. 552; T. E., § 337; Best, 
 
3tt0 EULES OF EVIDENCE. 
 
 to any presumption which may appear upon the pleadings. 
 As the proceeding goes on, the burden of proof may be shifted 
 from the party on whom it rested at first by his proving facts 
 which raise a presumption in his favor.^ The burden of proof 
 as to any particular fact lies on that person who wishes the 
 court to believe in its existence, unless it is provided by any 
 law that the burden of proving that fact shall lie on any par- 
 ticular person;^ but the burden may in the course of a case 
 be shifted from one side to the other; and in considering the' 
 amount of evidence necessary to shift the burden of proof, the 
 court has regard to the opportunities of knowledge with re- 
 spect to the fact to be proved which may be possessed by the 
 parties respectively.' The burden of proving any fact neces- 
 sary to be proved in order to enable any person to give evi- 
 dence of any other fact is on the person who wishes to give 
 such evidence." 
 
 The burden of proof remains on a party affirming a fact in 
 support of his case, and does not change in any aspect of the 
 cause, while the weight of evidence shifts from side to side 
 during the progress of the trial according to the nature of 
 the strength of the proof offered in support or denial of the 
 main fact to be established.* Indeed, it is a well-founded rule 
 of law, that, in a case where the testimony is so evenly bal- 
 anced as not to admit of a conclusion being drawn from it, 
 the verdict must be against the party upon whom the burden 
 of proving the issue rests. In other words, the burden of 
 proof remains where the issue made by the pleadings places it, 
 and the party who, if no evidence is offered in a given issue, 
 will be defeated as to that issue, is the one having the burden 
 of proof in respect thereto;^ and a party must prove all the 
 facts necessary to his right, except so far as they are admitted 
 by the adverse party,* as there can be no relief, without proof, 
 
 ' 1 Ph. Ev. 552 ; T. E., §§ 338, 339 ; * Scott v. Wood, 81 Cal. 398 ; Meag- 
 
 Starkie, §§ 586, 587, 748; Best, § 268; ley v. Hoyt, 125 N. Y. 771, 36 N. Y. 
 
 Railroad Co. v. Gladmon, 15 Wall. 401, State Rep. 37. 
 
 406;Statev. Ard6in,49La. Ann. 1149. 5 Blunt v. Barrett, 35 N. Y. State 
 
 2T. E., §§ 345, 346. Rep. 64, 124 N. Y. 117; Alabama G. 
 
 3 Clements v. Moore, 6 Wall. 299, S. R. Co. v. Frazier, 93 Ala. 45. 
 
 315; United States v. Hay ward, 3 " Henderson v. Carbondale Coal. 
 
 Gall. 485, 497 ; Great West. R. R. v. etc. Co., 140 U. S. 35 ; Litch v; Clinch, 
 
 Bacon, 30 111. 347, 353; Santon v. 136 111.410. 
 Keller, 167 III. 139. 
 
BUEDEN OF PEOOF. SJrl 
 
 on a controverted question.^ A party having the burden of 
 proof fails to meet the same where there is one witness for 
 each party, both of whom are unimpeached, of equal credibility, 
 and one affirms and the other denies the allegations of the 
 complaint.^ A defendant setting up matter in mitigation, or 
 in justification, or in avoidance, or in bar, takes the burden of 
 establishing fully those defenses;' that is to say, the onus pro- 
 handi rests upon the party who is obliged to free himself from 
 liability by proving a fact, when the knowledge of that fact 
 is supposed to be more within his reach than that of his ad- 
 versary.* 
 
 § 3. Illustrations. — (1) While a party is seeking to recover 
 upon the ground that the defendant did not discharge a statu- 
 tory duty, the burden is upon him to show that such duty was 
 not performed.* 
 
 (2) In an action for slander it is not necessary for the plaint- 
 iff in the first instance to offer proof bearing directly upon his 
 previous good character, or that the words, if uttered, were 
 false;* but he must show that the words, or substantially the 
 same words charged, were uttered as charged. 
 
 (3) The plaintiff must prove the terms of an oral contract 
 where its terms are put in issue by the pleadings.'' And in 
 every action for a breach of contract, the party alleging per- 
 formance, where that allegation is denied, must prove by a 
 fair preponderence of evidence that he has himself complied 
 substantially with the terms of the agreement.^ 
 
 (4) A person seeking to recover back mone}' paid on ah al- 
 leged void assessment has the burden of showing that the 
 assessment was void.' 
 
 (5) The burden of proving delivery and acceptance of goods 
 sold, so as to take the cause out of the statute of frauds, rests 
 
 1 Hughes V. Hughes, 87 Ala. 653. 5 Silver v. Missouri P. E. Co., 99 
 
 2 Hopkins v. Clark, 71 N. Y. State Mo. 33. 
 
 Rep. 444 ; McLean v. Smith, 108 Ala. 6 Broughton v. McGrew, 39 Fed. 
 
 533. Rep. 673. 
 
 3 Winans v. Winans, 19 N. J. 220 ; ' Hoffeditz v. Maiden Creek Iron 
 Gray v. Gardner, 17 Mass. 188 ; Mur- Co., 141 Pa. St. 58 ; Hull v. Cooper, 
 rell V. Whitney, 33 Ala. 54; Hopkins 36 Mo. App. 389; Pendleton v. Cline, 
 V. Kent, 17 Md. 113 ; Murphy v. Davis, 85 Cal. 143. 
 
 19 App. Div. 615. 8 Dunah v. Goa, 77 Mich. 16 ; Simons 
 
 <Selma R. & D. R. Co. v. United v. Ypsilanti Paper Co., id. 185. 
 States, 139 U. S. 560. » Remsen v. Wheeler, 131 N. Y. 685, 
 
 31 N. Y. State Rep. 385. 
 
342 ECLES OF EVIDE'TCE. 
 
 upon the person setting up the contract.' In an action at law 
 against a mutual benefit insurance company for damages for 
 refusing to make an assessment, the plaintiff assumes the bur- 
 den of showing what the contract was worth and what he 
 would have derived from the assessment.^ 
 
 § 4. Conditions, exceptions, waiver. — Where the action is 
 to recover on a contract by the terms of which an essential 
 precedent act was to be performed by the plaintiff, he must 
 prove a compliance on his part.' Thus, if the validity of a 
 deed depends upon an act in pais, the party claiming under it 
 is bound to prove the performance of the act.* So in an ac- 
 tion on a policy of insurance, the burden is on the plaintiff to 
 show that the loss did not come within any of the exceptions 
 in the policy.' If a waiver of condition is claimed by plaintiff 
 the burden is on him to prove it;* and one who invokes the 
 protection of a proviso or exception to a general law must 
 show himself clearly within its terms.' To recover upon an 
 agreement by defendant to pay when able, a change for the 
 better in defendant's circumstances must be shown.* So the 
 burden of proving a compliance v^ith a warranty on the part 
 of the insured in a fire-insurance policy rests upon him.' One 
 who seeks to establish rights under a contract made by a 
 trustee must show affirmatively that all conditions upon which 
 the authority of the trustee to make the contract depends 
 were strictly complied with.'" 
 
 It is difficult to lay down any general rule as to the effect 
 of a rebuttable presumption of law upon the burden of 
 
 1 Harris P. S. Co. v. Fisher, 81 Mich. « RechmuUer v. Philadelphia F. 
 
 136. Ass'n, 38 Mo. App. 118. 
 
 2 O'Brien v. Home Benefit Soc, 117 'Smith v. Moody, 94 6a. 534; Pad- 
 
 N. Y. 310, 27 N. Y. State Rep. 336. dock v Balgord (S. D.), 48 N. W. Rep. 
 
 3Craycroft v. Walker, 26 Mo. App. 840; Serf ass v. Driesbach, 141 Pa. St 
 
 469. 143; Dyke v. Spargar, 143 N. Y. 651 ; 
 
 * Deprutron v. Young, 134 U. S. 241 ; Blum v. Bowman, 66 Fed. Rep. 8S3. 
 
 Bell V. Earl of Dudley (1895), 1 Ch. 8 Work v. Beach, 59 Hun, 625, 37 
 
 182 ; Yazoo & M. V. R Co. v. Mc- N. Y. State Rep. 547 ; McCord v. Mas- 
 
 Lorty, 71 Miss, 755 ; Kuns v. Robert- sey, 155 111. 133. 
 
 eon, 154 111. 394 ; Howell v. Mellon, » Rankins v. Amazon Ins. Co., 89 
 
 169 Pa. St 138; Corinne Mill 0. & S. Cal. 203. 
 
 Co. V. Johuson, 156 U. S. 574: Mt. Car- w Anderson v. Prairie School Tp.. 
 
 mel V. McCIintock, 155 111. 608. 1 Ind. App. 34 ; Doyle v. Unglish, 143 
 
 , 6 Pelican Fire Ins. Co. v. Troy N. Y. 556. 
 Co-op. Ass'n, 77 Tex. 235. 
 
BURDEN OF PROOF. 343 
 
 proof.^ In some cases, as that of presumption of legitimacy, the 
 burden of proof appears to be shifted absolutely away from the 
 party in whose favor it operates. In other cases, as in that of 
 the presumption that the holder of a bill of exchange is a 
 holder in good faith, it is only shifted conditionally, so that in 
 an action by the holder the onus is cast on the defendant of 
 giving sufficient evidence to rebut the prima faoie presump- 
 tion. When that has once been done the burden of proof shifts 
 back to the holder in whose favor the presumption operated, 
 and on whom, but for the presumption, it would from the be- 
 ginning have lain, and remains thenceforth constant in point 
 of law, so that it is now for him to make out his case in the 
 ordinary way. On the other hand, a presumption of fact, 
 however strong, does not shift the burden of proof in law. 
 
 §5. Sufficient evidence to go to the jury -It is not 
 
 enough to authorize the submission of a question as one of 
 fact to the jury that there is some evidence. A scintilla of 
 evidence, or a mere surmise, that there may have been a wrong 
 act on the part of the defendant will not justify a judge in 
 leaving the case to the jury. Since the scintilla doctrine has 
 been exploded both in England and in this countrj', the pre- 
 liminary question of law for the court is, not whether there is 
 literally no evidence or a scintilla, but whether there is any 
 that ought reasonably to satisfy a jury that the fact sought 
 to be proved is established. Nor are judges any longer re- 
 quired to submit a question to a jury merely because some 
 evidence has been introduced by the party having the burden 
 of proof, unless the evidence be of such a character that it 
 would warrant the jury in finding a verdict in favor of that 
 party. Formerly it> was held that if there was what was 
 called a scintilla o-f evidence in support of a case, the judge 
 was bound to leave it to the jury ; but recent decisions of high 
 authority have established a more reasonable rule, that in every 
 case, before the evidence is left to the jury, there is a prelimi- 
 nary question for the judge, not whether there is literally no 
 evidence, but whether there is any upon which a jury can prop- 
 erly proceed to find a verdict for the party producing it, upon 
 whom the onus of proof rests,^ 
 
 1 Sutton V. Sadler, 3 C. B. (N. S.)87; 2Dwight v. Germania L. Ins. Co., 
 The Joseph B. Thomas, 81 Fed. Rep. 103 N. Y. 358. 
 578 ; Inness v. Boston R. B. & L. R 
 Co., 168 Mmss. 433. 
 
344 EtTLES OF EVIDENCE. 
 
 I. CIVIL DAMAGES. 
 
 {a) In an actionunder the Civil Damage Act, the plaintiff must 
 show that the defendant furnished liquor to the person intoxi- 
 cated. But it may be shown that such t)erson entered the 
 defendant's place sober and came out intoxicated. The defend- 
 ant may show that the person previously drank elsewhere. 
 The witness may testify directly to the intoxicating quality of 
 the beverage, or the court may take judicial notice of it ; but 
 where they do not do so there must be some evidence on the 
 point, and the question is for the jury.* 
 
 (b) If the act requires proof of known intemperate habits, 
 evidence of general reputation is not enough, at least without 
 such circumstances of presumptive or of long-continued sales 
 by defendant as to raise the presumption that he had notice of 
 the habit. 
 
 (c) Intemperate habit is a question of fact, and witness may 
 be allowed to state that the drunkard was of such habit.' 
 
 {d) Any witness, though he be not an expert, who saw the 
 alleged drunkard, may be asked whether or not he was, in the 
 witness' judgment, intoxicated or drunk or under the influence 
 of liquor.' 
 
 {e) It is essential to prove actual damage of the kind men- 
 tioned in the statute.* Mere suffering and indignity are not 
 alone sufBcient to sustain an action.' To establish this kind 
 of recovery, dependence for support in some degree at least 
 must be shown. Means of support in the statute includes the 
 wages or produce of labor as well as moneys and goods. 
 Upon this point the plaintiff may give evidence of the general 
 condition and circumstances of the husband or parent, and of 
 his habits of sobriety, and capacity to earn or produce.* 
 
 (/) To recover exemplary damages there must be evidence 
 
 1 Commonwealth v. Peckham, 3 heather v. Risley, 38 Iowa, 486 ; Bran- 
 Gray, 514 ; Markle v. Akron, 14 Ohio, non v. Adams, 76 III. 331 ; Felska v. 
 586 ; Warley v. Spurgeon, 38 Iowa, New York C. & H. R R. Co., 153 N. T. 
 •465. 339. 
 
 2 Stanley v. State, 26 Ala. 36 ; Adams < Friese v. Krippe, 70 III. 496. 
 
 V. State, 35 Ohio St. 585 ; Wickwire V. 5 Peterson v. Knoble, 35 Wis. 80; 
 
 State, 19 Conn. 477. Dunlavey v. Watson, 38 Iowa, 398. 
 
 3 People V. Elwood, 14 N. Y. 563; 6 Dunlavey v. Watson, 38 Iowa, 398. 
 McKee v. Nelson, 4 Cow. 355 ; Wool- 
 
BURDEN OF PKOOF. 345 
 
 not only of actual damage, but of conduct wilful, wanton, reck- 
 less, or otherwise deserving of condemnation, beyond mere 
 actual damage.' 
 
 II. CIVIL PENALTIES. 
 
 (1) The condition upon which a penalty attaches must be 
 affirmatively shown to have existed. Under an allegation 
 that the defendant did the act, evidence that he caused or pro- 
 cured .it to be done is competent.'^ Knowledge of the law is 
 not presumed as a matter of fact.' If a notice be required by 
 the statute as a preliminary to the penalty, it must be directly 
 proved. But if it is not the foundation of the action, and 
 merely relates to some collateral fact, its contents may be 
 proved by parol.* 
 
 (2) If the statute forbids the doing of the act knowingly, 
 evidence of the habitual or repeated act is presumptive of 
 knowledge. Similar violations being committed during the 
 same period in the same business or premises are competent 
 ^iudi prima facie evidence of intent. 
 
 (3) In the case of several defendants, the admissions and 
 declarations of one are competent against himself, but not 
 necessarily against the , others. Where parties are sued under 
 liquor laws, evidence of keeping for sale is competent on the 
 question of sale. So is the fact of keeping a bar, with bottles 
 in it; and the fact that it was a place of resort; that persons 
 went in sober and came out drunk. Evidence of the moving 
 of liquor casks and of having empty vessels which recently 
 contained intoxicating liquors is competent. 
 
 (4) Any ordinary witness may testify directly that liquor 
 was gin, brandy, beer or whisky. It does not require an ex- 
 pert.' Evidence of the precise day of commiting the offense 
 is not essential.^ 
 
 (5) Sales or seizures made the third day prior to the day 
 pleaded are competent evidence tending to prove that the 
 keeping on the day named was with intent to sell.'' Where 
 
 iKreiter v. Nichols, 28 Mich. 500; *McFadden v. Kingsbury, 11 Wend. 
 
 Bates V. Davis, 76 111. 223. 667. 
 
 2Gafeney v. Colvill, 6 Hill, 567; 5 Com. v. Timothy, 8 Gray, 480. 
 Commissioners of Pilots v. Vander- " Tiffany v. Griggs, 13 Johns. 253. 
 bilt, 32 N. Y. 265. ' Com. v. Stoehr, 109 Mass. 365. 
 
 3 Black V. Ward, 27 Mich. 191. 
 
346 EDLES 07 EVIDENCE. 
 
 the statute applies to sales or gifts, either the sale or gift may 
 be proved under the allegation that the defendant sold or 
 gave.' 
 
 (6) Proof that the drunkard wrongfully took the liquor, and 
 the defendant, on discovering the tort, compelled him to pay 
 for it, does not establish a sale.^ Under an allegation that tiie 
 defendant sold, it is competent to prove sales by his subordi- 
 nate.' 
 
 (7) Evidence that the salesman was in the place and garb of 
 clerk, servant, son, husband or wife of the defendant is com- 
 petent, but not alone sufficient to shoAV his agency.* 
 
 (8) It is competent to prove that defendant's name was on 
 a sign-board on or in the bar-room, or the license or the appli- 
 cation for it, or the label bearing the defendant's name, checks, 
 etc., were found in the place.' 
 
 III. LIMITATION OE ACTIONS. 
 
 (a) Where the statute of limitation is pleaded, the plaintiff, 
 or, where the statute is pleaded to a counter-claim, the defend- 
 ant, must show any suspension of the statute which he claims;* 
 the commencement of action within the time allowed by law,' 
 or that the cause of action came within an exception to the 
 general rule of the statute — as that the plaintiff was under a 
 .disability at the time the cause of action accrued,' or that the 
 debtor was out of the state, or a new promise.' If the new 
 promise was to pay when able, the ability to pay must be 
 shown.'" 
 
 (b) Part payment must be an actual transfer of something 
 of value, and evidence of mere payment of money only is not 
 enough without something to show that the debtor intended 
 to recognize the debt as subsisting and that he was willing to 
 pay it.'' 
 
 1 State V. Brown, 36 Vt. 560. 8 Ford v. Babcock, 2 Sandf. 518; 
 
 2 Kreiter v. Nichols, 28 Mich. 496. Angell on Lira., § 196. 
 
 3 Parker v. State, 4 Ohio St. 563. » Wakeman v. Sherman, 9 N. "5?. 85 ; 
 
 4 State V. Brown, 31 Me. 520; Mead Kincaid v. Archibald, 73 id. 189. 
 
 V. Stratton, 8 Hun, 148. '» Wake:nan v. Sherman, 9 N. Y. 85 ; 
 
 5 Com. V. Dearborn, 109 Mass. 368. Lonsdale v. Brown, 4 Wash. C. C. 8R ; 
 
 6 Baldwin f . Martin (N. Y.), 14 Abb. Carlledge v. West, 2 Denio, 377. 
 
 Pr. (N. S.) 9. u Blanchard v. Blanchard, 122 Mass. 
 
 7 2Greenl. Ev., §431. 558; Smith v. Eyan, 66 N. Y. 352; 
 
BUEDEN OF FKOOF. 347 
 
 (c) An indorsement of payment on the instrument sued on, 
 if in the handwriting of the defendant or of the creditor shown 
 to have since deceased, if there is extrinsic evidence of the 
 date,' or where it appears that the indorsement was made Avhen 
 its operation would be against the interest of the party mak- 
 ing it, is competent and sufficient to go the jury ^ when it is 
 shown that such payment was made by the maker or some one 
 having authority from him.' 
 
 {rl) An indorsement or memorandum of a pa3'ment made 
 upon a promissory note, bill of exchange or other writing, by 
 or on behalf ot the party to whom such payment was made, 
 is not sufficient proof of such paj^ment to take the case out of 
 the statute of limitation, unless it be satisfaetoril}'^ shown that 
 it was thus made before the statutory period had elapsed, in 
 which case it is regarded as a declaration against the proprie- 
 tary interest of the declarant. The date of such indorsement 
 must be shown by independent evidence.'' 
 
 IV. NEGLIGENCE. 
 
 § 6. In general. — As a general rule, negligence is an af- 
 firmative fact to be established by him who alleges it as a 
 foundation of his right of recovery. It is incumbent upon 
 the plaintiff to point out by evidence the defendant's fault, 
 for the presumption is, until the contrary appears, that every 
 man has performed his duty. Therefore, in an action for 
 negligence the plaintiff must prove facts from which it can 
 be legitimately inferred that either in construction, repair or 
 operation the defendant omitted that reasonable care and 
 caution which he should have observed. It is necessary to 
 recognize a distinction, which has been carefully guarded by 
 the courts, between actions founded in negligence, when a 
 contract relation existed between the parties, and those in 
 which the defendant owed no other duty than to use such 
 ordinary care and caution as the nature of his business de- 
 manded to avoid injury to others. Thus, where the owner of 
 land expressly or by implication invites others to come upon 
 
 Carrington v. Crocker, 37 id. 336 ; 2 Roseboom v. Billington, 17 Johns. 
 Harper v. Falrley, 53 id. 443. 183. 
 
 1 Risley v. Wightman, 13 Hun, 163. 3 Waughop v. Bartlett, 165 111. 124. 
 
 * Mason v. Henry, 153 N. Y. 539. 
 
3i8 EPLES OF EVIDENCE. 
 
 his premises, if he permits anything in the nature of a snare 
 to exist thereon, he is responsible for an injury resulting there- 
 from to one availing himself of the invitation. But if he gives 
 a bare permission to cross the premises, the licensee takes the 
 risk of accidents in using the premises in the condition in which 
 they are. In both cases the act is the same ; but in the one 
 case he owes a duty not to maintain a snare, in the other not. 
 In view of the relations of the parties he is held to be negli- 
 gent in the first case but not in the second. Sometimes, it is 
 true, the duty which the defendant owes to the plaintiff is of 
 such a nature that proof of the happening of the accident under 
 certain circumstances and given conditions will be of such legal 
 value as to afford presumptive evidence of negligence, and cast 
 upon the defendant the burden of explanation. This rule has 
 been applied to the carrier of passengers, especially in convey- 
 ances propelled by steam, where the consequences of an acci- 
 dent are frequently fatal to human life, and the public interests 
 require that in such cases the carrier shall use every precaution 
 which human skill and foresight can provide to prevent acci- 
 dent audits results. Even in those cases there must be reason- 
 able evidence of negligence before a defendant can be called 
 upon to relieve itself from the presumption of negligence. 
 When the thing causing the injury is shown to be under the 
 control of a defendant, and the accident is such as in the ordi- 
 nary course of business does not happen if reasonable .care is 
 used, it does, in absence of explanation by the defendant, afford 
 sufficient evidence that the accident arose from want of care.' 
 It is never true in contractual relations that proof of the mere 
 fact that the accident happened to the plaintiff, without more, 
 will amount io prima facie proof of negligence on the part of 
 the defendant. The cases in which the rule res ipso loquitur 
 has been enforced against defendants are nearly all passenger 
 cases.^ 
 
 § 7. Presumption of negligence. — Whenever a car or train 
 leaves the track it proves that either the track or machinery 
 
 1 The Euripides, 38 U. S. App. 1, 71 treal Rolling Mill Co. v. Corcoran, 36 
 Fed. Rep. 738. Can. S. C. 595 ; Liavan v. Second Ave. 
 
 2 Mullen V. St. John, 57 N. Y. 567, R. Co., 13 App. Div. 381; Jones i. 
 is an exception ; Cosulich et al. v. The Union R. Co., 18 App. Div. 267 ; Lib- 
 Standard Oil Co., 122 N. Y. 118, 33 erty Ins. Co. v. Central Vt. C;o., 19 id. 
 N. Y, State Rep. 287 ; Stringert v. 509, 56 Alb. L. J. 96 ; Pierce v. Kile, 
 Ross Township, 179 Pa. St. 614; Mon- 80 Fed. Rep. 805, 
 
BTJEDEN OF PKOOF. 849 
 
 or some portion thereof is not in proper condition, or that 
 the machinery is not properly operated, and presumptively 
 proves that the defendant, whose dutj^ it is to keep the track 
 and machinery in proper condition and operate it with neces- 
 sary prudence and care, has in some respects violated his 
 duty.' While in an action against a party for negligence the 
 burden of proof of showing negligence of the defendant, occa- 
 sioning an injury, rests, in the first instance, upon plaintiff, 
 proof that the injury was the result of an accident which 
 would not ordinarily have happened had everything been in 
 proper condition and operated with proper care is sufficient, 
 and the onus then rests upon the defendant to prove that the 
 injury was caused without fault.^ There is no rule applicable 
 to the trial of issues of fact in civil actions, unless the issue 
 involves the commission of a crime by some of the parties 
 thereto, which requires a party upon whom the burden of 
 proof rests to establish a case free from reasonable doubt. It 
 was held in the case of Johnson v. Agricultural Ins. Co.,' where 
 the defendant had, in answer to an action upon a policy of in- 
 surance to recover damages for a loss occasioned by fire, al- 
 leged that the plaintiff had himself fired the insured buildings, 
 that it was sufficient if the defense was supported by a pre- 
 ponderance of evidence, and that it was error to require the 
 defense to be proved beyond a reasonable doubt. The ques- 
 tion decided in that case has been the subject of considerable 
 controversy among authors on evidence, and we do not in- 
 tend to express any opinion thereon ; but we apprehend that 
 the case suggested presents the only exception, if any exists, 
 to the rule that upon the trial of a civil action the party sus- 
 taining the burden of proof performs his obligation by pre- 
 senting a preponderance of evidence.'' The explosion of a 
 
 iDampman V. Pennsj'lvania RCo., 154 111.118; Pennsylvania R. Co. v. 
 
 166 Pa. St. 520 ; Dohn v. Dawson, 84 Middleton, 57 N. J. L. 154 ; Livermore 
 
 Hun, 110 ; Webster v. Elmira C. & v. Fitchburg R. Co., 163 Mass. 132 : 
 
 N. R Co., 85 Hun, 167 ; Gleason v. Corbett v. Brooklyn B. & W. E. R. 
 
 Virginia M. A. Co., 140 U. S. 435; Co., 84 Hun, 375; Missouri P. R. Co. 
 
 Lavis V. Wisconsin C. R Co., 54 111. v. Haokett, 54 Kan. 816 ; Kahn v. At- 
 
 App. 636; Texas & P. R Co. v. Bar- lantic & N. C. R Co., 115 N. C. 638; 
 
 rett, 166 U. S. 617 ; Mexican 0. R Co. Illinois C. R. Co. v. Beebe, 69 111. App. 
 
 V. Lauricella, 87 Tex. 277; "Mary" 363; Welsh v. Erie & W. V. R Co., 
 
 Tug Co. V. British India S. N. Co. 181 Pa. St. 461. 
 
 (1897), A. C. 351. 3 25 Hun, 351. 
 
 2 John Morris Co. v. Southworth, ^3 Greenl. Ev., § 39; Seybolt v. 
 
350 KtTLES OF EVIDENCE. 
 
 boiler which was in charge of an experienced man raises no 
 presumption of negligence on the part of the owner ;i and 
 negligence of the person conducting a public exhibition of 
 horse-racing cannot be presumed from the mere fact that a 
 spectator was injured by a runaway horse while within the 
 place reserved for spectators.^ The fact that a fire originated 
 on a railroad right of way is not of itself evidence of negli- 
 gence on the part of the railroad company.' But evidence that 
 plaintiff was injured while driving under defendant's elevated 
 railroad, by an iron bar falling from such railroad, raises the 
 presumption of negligence on the part of the defendant.* Evi- 
 dence of habitual intoxication on the part of decedent is 
 admissible in an action for death at a railroad crossing, as cre- 
 ating a presumption that he was intoxicated and therefore 
 guilty of contributory negligence at the time of the accident.* 
 § 8. Contributory negligeace.— In New York, Massachu- 
 setts and Texas a plaintiff in an action for personal injuries 
 has the burden of proving not only that the accident was the 
 result of the defendant's negligence, but that the plaintiff was 
 free from contributory negligence.^ Absence of contributory 
 negligence on the part of one alleged to have met his death 
 through the negligence of another may be inferred from the 
 circumstances or nature of the case, and is not necessarily re- 
 quired to be shown by direct proof.' There seems to be a 
 different rule where a passenger is injured while being carried 
 
 N. Y., L. E. & W. R Co., 95 N. Y. 563 ; s Soderman v. Kemp, 145 N. Y. 427 ; 
 
 Fenderson v. Atlantic City R. Co., 50 Winterfeld v. Second Ave. R Co., 66 
 
 N. J. L. 708; Alabama C. S. R Co. v. Hun, 637, 49 N. Y. State Rep. 435; 
 
 Fulghein, 94 Ga. 571 ; Moss v. Phila- Barton v. Kirk, 157 Mass. 303: Gulf 
 
 delphia Trac. Co., 180 Pa. St. 389. Coast & S. F. R. Co. v. Riordan, 85 
 
 1 Brumner v. Blaisdell, 170 Pa. St. Tex. 183, 16 Am. St. Rep. 887. 
 
 25. " Sickles v. New Jersey Ice Co., 80 
 
 2 Hart V.Washington Park Club, Hun, 313, 61 N. Y. State Rep. 761; 
 157 111. 9, 29 L. R A. 492, 48 Am. St McPhee v. Scully, 163 Mass. 316 ; John- 
 Rep. 398. son V. Steam Gauge & L. Co., 146 N. 
 
 3 Taylor v. Pennsylvania S. V. R. Y. 158, 66 N. Y. State Rep. 376 ; Dixon 
 Co., 174 Pa. St. 171. v. Louisiana Electric Light & P. Co., 
 
 <Hogan V. Manhattan R Co., 149 47 La. Ann. 1147; Peterson v. Sherry 
 
 N. Y. 23; Western Union Tele. Co. v. Lumber Co., 90 Mich. 83; Hudson v. 
 
 State, Nelson, 83 Md. 393, 31 L. R A. Rome, W. & O. R. Co., 145 N. Y. 408, 
 
 573 ; Coleman v. Mechanics' Iron F. 64 N. Y. State Rep. 843 ; Illinois C. R. 
 
 Co., 168 Mass. 254. Co. v. Cozby, 69 III. App. 256 ; Noble v. 
 
 5 Lane v. Missouri P. R Co., 132 N. Y. C. & H. R R Co., 30 App. Div. 40. 
 Mo. 4. 
 
BL'EDEN OF PROOF. 351 
 
 in a vehicle of a common carrier.^ In Wisconsin, Georgia, 
 Missouri, Alabama, Minnesota, Pennsylvania and in the United 
 States courts, the rule is that contributory negligence, when 
 not disclosed by the complaint or testimony on the part of 
 the plaintiif, is purely a matter of defense.^ But the rule 
 seems to be different in regard to damage to property ; thus, 
 a libelant for collision has the burden of showing the libeled 
 vessel to be in fault, and freedom from fault on the part of his 
 own vessel.' 
 
 §9. Master and servant. — Upon the question whether or 
 not the method adopted by a foreman of doing work, which 
 resulted in the injury of an employee, was negligent, other 
 men experienced in doing such work may describe to the jury 
 what other and safer methods, if any, might have been adopted 
 in doing it.* A minor suing for personal injuries suffered in 
 his employment upon a railroad may testify that no one ex- 
 plained to him the danger of the employment.' The rules of 
 a railroad company are competent and relevant in an action 
 between the company and one of its employees for an injury 
 caused by a violation of one of such rules.* So is any order 
 of the company shown to have come to the knowledge of an 
 injured employee.' It is competent to show that no signal 
 was given of the presence on the track of a belated local 
 freight train, where another train is ordered to proceed with- 
 out giving any notice or warning of any danger ahead.^ That 
 no signal or warning was given of the sudden backing of a car 
 on a railroad track where members of a gang of laborers were 
 
 iBush V. Barnett, 96 Cal. 203; 3 The Charles L. Jefifery, 55 Fed. 
 
 Payne v. Halstead, 44 111. App. 97 ; Rep. 685 ; The Wioma, id. 338 ; The 
 
 Fordice v. Withers, 1 Tex. Civ. App. St. John, 54 id. 1015. 
 
 540; Spellman v. Lincoln Rapid *Fogus v. Chicago & A. R. Co., 50 
 
 Transit Co., 86 Neb. 86, 30 J.. R A. 316. Mo. App. 350 ; Chopin v. Badger 
 
 2 Welsh V. Argyle, 85 Wis. 307 ; Au- Paper Co., 83 Wis. 193. 
 
 gusta V. Hudson, 88 Ga. 599 ; Church- 5 Texas & P. R. Co. v. Brick, 83 Tex. 
 
 man v. Kansas City, 49 Mo. App. 366 ; 598. 
 
 Bromley v. Birmingham M. R. Co., ''Chattanooga R. & C. R, Co. v. 
 
 95 Ala. 397 ; Connerton v. Delaware Whitehead, 90 Ga. 47. 
 
 & H. C. Co., 169 Pa. St. 339'; Whaley ' Price v. Richmond & D. R. Co., 38 
 
 V. Bartlett, 43S. C. 454; The Oregon, S. C. 117; Northern P. R. Co. v. 
 
 158 U. S. 186 ; Baltimore Traction Co. Charles, 163 U. S. 359. 
 
 V. Appel, 80 Md. 603 ; Washington & 8 Chattanooga R. & C. R. Co. v. 
 
 G. R, Co. V. Tobriner, 147 U. S. 571 ; Owen, 90 Ga. 265. 
 Baker v. North East, 151 Pa. St. 284. 
 
352 I EULES OF EVIDENCE. 
 
 liable to be standing while lawfully unloading cars for the con- 
 signee of freight is admissible as part of the res gestae, as bear- 
 ing on the railway company's alleged negligence.' 
 
 § 10. Sleeping-ear — Money on passengers. — A traveler 
 who pays for a berth is invited and has a right to sleep, and 
 both parties to the contract know that he is to become pow- 
 erless to defend his property from thieves or his person from 
 insult, and the company is bound to use a degree of care com- 
 mensurate with the danger to which passengers are exposed. 
 Money in a passenger's clothing worn during the day and 
 placed under his pillow at night is not in the custody of the 
 corporation which carries and furnishes travelers with berths 
 in sleeping coaches so as to make it liable for its loss. To sus- 
 tain a recovery some evidence of negligence on the part of the 
 carrier must be given. Proof that a car ran over an impor- 
 tant route between great thoroughfares and stopping at con- 
 siderable cities, that but one person was employed on the car 
 as conductor, porter and bootblack, is sufficient to put the car- 
 rier to proof of the care which it took of the occupants of the 
 sleeper on the trip, and is sufficient to require the question, 
 whether the loss was caused by the defendant's negligence, to 
 be submitted to the jury.^ 
 
 § 11. Implied admissions of negligence. — Evidence of the 
 subsequent discharge of employees or changes in appliances, or 
 the addition of entirely new apparatus or subsequent changes 
 and repairs, by a party charged with negligence, is inadmissi- 
 ble as an implied admission of such negligence.' 
 
 § 12. Negligent or wrongful acts committed abroad. — 
 Circumstances give rise to presumptions, and these in turn are 
 proof;* and a party on whom the burden of proof rests is en- 
 titled to the aid of all legal presumptions arising out of the 
 facts established. It will be presumed that the common law 
 of a state is the same as that where the court is sitting in 
 those states the jurisprudence of which was founded upon 
 
 iSpotts V. Wabash W. R. Co., Ill Hagerv. Southern P. Co., 98 Cal. 309; 
 
 Mo. 380. Ghristensen v. Union Trunk Line, 6 
 
 2 Carpenter v. N. Y., N. H. & H. R Wash. 75; Bowles v. Kansas City, 51 
 R. Co., 124 N. Y. 53, 34 N. Y. State Mo. App. 416. 
 
 Rep. 857 ; Katter v. Pullman P. C. Co., < White v. Benjamin, 23 N. Y. Supp. 
 98 Ga. 810. 981. 
 
 3 Downey v. Sawyer, 157 Mass. 418; 
 
BURDEN OF PROOF. 353 
 
 or derived from the common law.' And in the absence of 
 proof, the jurisprudence of all the states will be presumed to 
 have been founded upon the common law.^ But the rule is 
 different in those states the jurisprudence of which was not 
 founded on the common law. The actionable quality of an 
 alleged wrong depends upon and is determined by the munici- 
 pal law of the place of the transaction ; and in a suit in one 
 state for an alleged wrong committed in another state or a 
 foreign country, the court, in the absence of evidence to the 
 contrary, will presume the common law to be the law of the 
 locality; and if by the principles of the common law such 
 alleged wrong is not the subject of an action for private re- 
 dress, the plaintiff, in order to recover, must prove it to be 
 so by the law of the place of the transaction.' Thus, actions 
 for injuries to the person in another state are sustained with- 
 out proof of the lex loci because they are permitted by the 
 common law, which is presumed to exist in the foreign state; 
 but such presumption does not arise where the right of action 
 depends upon a statute which confers it, and in the latter 
 case the action can only be maintained by proof that the 
 statutes of the state or country in which the injury occurred 
 give the right of action and are similar to that of the forum.* 
 The two statutes need not be identical in their terms, or pre- 
 cisely alike, but it is enough if they are of similar import and 
 character, founded upon the same principles and possessing 
 the same general attributes.' The territory of every state 
 extends to the ports, harbors, bays, mouths of rivers and ad- 
 jacent parts of the sea inclosed by headlands belonging to the 
 same state. The general usage of nations superadds to this 
 extent of territorial jurisdiction a distance of a marine league, 
 or as far as a cannon shot will reach from the shore, all along 
 the coast of the state. "Within these limits its rights of prop- 
 erty and territO'rial jurisdiction are absolute and exclude those 
 
 1 Alabama G. S. R. Co. v. Carroll, ' Geoghegan v. Atlas Steamship 
 
 53 Ara. & Eng. Ry. Cas. 556. Co., 51 N. Y. State Eep. 868, 16 Daly, 
 
 ^Haggin v. Haggln, 35 Neb. 375; 339. 
 
 Brown v. Wright, 58 Ark. 20 ; Bur- ^ McDonald v. Mallory, 77 N. Y. 
 
 hans V. Western U. Tel. Co., 4 Ind. 546. 
 
 App. 176 ; American Oak Leather Co. ' Leonard v. Columbia S. N. Co,, 84' 
 
 V. Standard Gig Saddle Co., 9 Utah, N. Y. 58. 
 87 ; Knapp v. Knapp, 95 Mich. 474. 
 33 
 
35i RULES OF EVIDENCE. 
 
 of every other nation.^ It is. the law of civilized nations that 
 when a merchant of one country enters the port of another for 
 the purpose of trade he subjects himself to the law of the 
 place to which he goes. 
 
 § 13. Telegraph messages — Prima facie case — Notice.— 
 In actions against telegraph companies for failing to accurately 
 or promptly deliver communications, a plaintiff makes out a 
 prima facie case by proving the contract and its breach, and 
 he need not go further and give evidence of some negligent 
 act of omission or commission on the part of the company or 
 of its agents.^ While a telegraph company is not, unless it so 
 expressly contracts, held to warrant or insure the accurate 
 transmission or prompt delivery of messages, it cannot by no- 
 tice limit its liability for negligence by a printed blank con- 
 taining such notice.' 
 
 T. FEAUD. 
 
 § 14. Sufficiency of proof to carry case to jury. — Fraud 
 is a question of fact and should generally be submitted to the 
 jury. But it should be submitted to them upon competent 
 and sufficient proof. When there is no evidence to justify a 
 finding of fraud, the question is not for the jury but for the 
 court, and a nonsuit or the direction of a verdict is proper. An 
 intent to defraud cannot be imputed to a purchaser of property 
 on credit merely from the fact that he was to his knowledge 
 insolvent at the time of the purchase and that he omitted to 
 disclose such condition to his vendor. These must be accom- 
 panied by facts disclosing an intent to acquire the property 
 without paying for it. The intention not to pay can no more 
 be inferred from the mere fact of insolvency than the fact of 
 insolvency can be inferred from the existence of an intention 
 not to pay. A party seeking to establish a cause of action 
 against another based upon an alleged fraud must show affirm- 
 atively facts and circumstances necessarily tending to establish 
 a probability of guilt. If the evidence is capable of an inter- 
 pretation equally consistent with innocence as with guilt, the 
 
 1 Manchester v. Massachusetts, 139 Baldwin v. U. S. Tel. Co., 45 N. T. 744 ; 
 
 •U. a 840. Gray, Tel., §§ 26, 53, 54, 77. 
 
 2Rittenbouse v. Independent Line ^pearsall v. Western U. T. Co., 124 
 
 of Teleg., 1 Daly, 474, 44 N. Y. 363 ; N. Y. 256, 35 N. Y. State Rep. 307. 
 
BUEDEN OF PEOOF. 355 
 
 former meaning must be given to it.^ "When a litigant bases 
 his cause of action upon the fraudulent conduct of the opposite 
 party, he must be presumed to be aware of the frauds from 
 which he suffers, and it is no hardship to require them to be 
 stated with reasonable precision.^ 
 
 § 15. Innocence — Presumption of in civil actions. — The 
 presumption of innocence arises on the trial of civil cases, when 
 the grounds of recovery or defense involve and charge the com- 
 mission of a crime;' but it is not so in case of conversion, 
 trover, negligence, replevin and similar actions ex delioto.* 
 
 % 16. Preponderance of proof sufficient. — There is no rule 
 of law which requires the plaintiff, in a civil action, when a 
 judgment against the defendant may establish his guilt of a 
 crime, to prove his case with the same certainty which is re- 
 quired in criminal prosecutions. iNothing more is required in 
 such cases than a just preponderance of evidence, always giv- 
 ing the defendant the benefit of the presumption of innocence.'' 
 And there is no apparent reason for making any distinction 
 in that respect in behalf of a defendant in an action for a pen- 
 alty in which the people are the party plaintiff.^ 
 
 §17. Continuous fraudulent transactions.— "Where the 
 transaction, the thing done, the fact put in issue, is a fraud, 
 which is not a simple but a compound and continuous fact, 
 proceeding to its result by consecutive steps and separate acts, 
 having necessarily an origin, a progress and an ultimate re- 
 sult, such fraud can be studied and proved all along the line, 
 and in all its stages from origin to culmination, as forming 
 part of the issue.' 
 
 § 18. Fraud to do away with a written agreement. — Al- 
 though the contract of a sale of goods by sample is in writing, 
 and contains no warranty, evidence of fraudulent representa^ 
 tions as to their character and quality, made upon the sal(^ 
 
 1 Morris v. Talcott. 96 N. Y. 107; ssprague v. Dodge, 95 Am. Dec. 
 
 People's Bank v. Bogart, 81 id. 101 ; 535. 
 
 Shultz V. Hoagland, 85 id. 464. 6 People v. Briggs, 114 N. Y. 56, 22 
 
 2Reade v. Clark's Cove Guano Co., N. Y. State Rep. 317. 
 
 47 Hun, 410, 14 N. Y. State Rep. 561. 'Smith v. The National Benefit 
 
 sstevensonr. Gunning, 64 Vt. 601; Society, etc., 133 N. Y. 85, 33 N. Y. 
 
 Nye V. Lothrop, 94 Mich. 411. State Rep. 67; Motherly v. Wall, 168 
 
 * Bonnelli v. Bowen, 70 Miss. 143. Mass. 333. 
 
356 EULES OF EVIDENCE. 
 
 which were intended to and did cause the vendee to omit ex- 
 amination, are admissible under an answer setting up fraud.' 
 
 § 19. Other frauds.— To establish fraud in a given trans- 
 action, evidence is admissible of the commission of similar 
 frauds in like transactions with other persons at or about the 
 same time.^ And a statement to' a commercial agency, made 
 the basis of a purchase from other parties, is admissible in an 
 action of replevin upon rescission of a sale for fraud, as a con- 
 temporaneous act of fraud, where the sale was contempora- 
 neous with that in question.' On an issue as to whether a 
 mortgage was fraudulent, other transfers by the debtor of his 
 property are competent.* In an action for false imprisonment 
 the plaintiff cannot show malice on the part of the defendant, 
 malice not being an element of false imprisonment.^ 
 
 § 20. Intent — When party may swear to it. — The motive 
 of a witness in performing an act can only be given in evi- 
 dence when there is no other method of proving it. Thus, in 
 an action against a railroad company for damages to premises 
 caused by smoke, dust, noise, etc., a witness cannot be allowed 
 to state whether or not he, as a tenant of the premises, re- 
 moved therefrom on account of the effect produced by the 
 operation of the road." But the general rule seems to be that 
 the motive with which an act was done or words uttered, or 
 an instrument was executed, may be inquired into by asking 
 the party perpetrating the act, uttering the words or execut- 
 ing the instrument his intent or motive, and the real motive 
 may be stated as a fact to be considered in connection witii 
 the other evidence. In other words, when the doing of an act 
 is not disputed but is affirmed, and whether the act shall be 
 held valid or invalid, hangs upon the intent with which it was 
 
 iMayer V. Dean etal., 115 N.y. 550, N. Y. State Rep. 139; People v. 
 
 S6 N. Y. State Rep. 375. Hecker, 30 L. R A. 403. 
 
 2 Continental Insurance Co. v. In- * Kellogg v. Clyne, 54 Fed. Rep. 696 ; 
 
 surance Co. of Pa., 51 Fed. Rep. 884; O'Donnell v. Hall, 157 Mass. 463: Ellis 
 
 People V. McClure, 148 N. Y. 95 ; H. Roberts & Co. v. Buckly, 145 N. Y. 
 
 American Surety Co. v. Pauley, 73 215. 
 
 iFed. Rep. 470 ; Penn Mut. L. Ins. Co. « Hewitt v. Newberger, 48 N. Y. 
 
 <v. Mechanics' Sav. Bank, 72 Fed. Bep. State Rep. 812. But see Reynolds v. 
 
 413. Haywood et al., 5a id. 47, 77 Hun, 131. 
 
 SBUss V. Sickles, 66 Hun, 633, 50 6 Moore v. New York El. Co., 130 
 
 N. Y. 523, 29 N. Y. State Rep. 433. 
 
BUEDEN OF PEOOF. 357 
 
 done, which intent from its nature would be held and formed 
 without avowal, then he upon whom the intent is charged may 
 testify whether he secretly held such intent when he did the 
 act.i If an act is in and of itself illegal, the offender's intent 
 is immaterial; but if its character depends upon the intent 
 with which it is done, then proof of the intent by the person 
 who did the act in question is admissible.^ Thus in a criminal 
 case, when it is proved that the defendant has committed some 
 act, and the motive iviih which it was done is material, he 
 may testify in regard to his motive and maj' prove facts by 
 others tending to show his intent.' And when evidence tend- 
 ing to show a guilty motive on the part of the accused has 
 been given, he has a right to give evidence to prove a different 
 motive and repel the imputation.* In an action to set aside 
 an assignment for the benefit of creditors, the intent of the as- 
 signee in accepting the assignment is not material, as he is not 
 a purchaser for value.^ In Lalley v. Emery," in an action for 
 slander, when the answer admitted that the defendant used 
 the words alleged in the complaint, it was held that he might 
 testify that in the use of the words he did not intend to charge 
 the plaintiff with the commission of the crime of rape. So in 
 Bennett v. Smith ' it was held that a defendant was entitled 
 to testify why he wrote the libel with which he was charged. 
 While intent is to be judged of usually by the light of sur- 
 rounding facts and circumstances which all can know and con- 
 sider as well as the witness, a party must be allowed to testify 
 as a witness in his own behalf that he did not intend to cheat, 
 deceive or defraud, or to practice any fraud or deceit in the 
 transaction wherein he was charged with having had such mo- 
 tive, however inconclusive, unsatisfactory or inconsistent his 
 evidence may be. Thus, a person may be asked why he did 
 not do a certain thing, when an answer would show the good 
 faith of the party and the motive actuating the other party.* 
 
 1 Bayless v. Cockcraft, 81 N. Y. 371. 5 Kennedy v. "Wood, 53 Hun, 40, 32 
 
 2McCormack v. Perrj', 47 Hun, 71, N. Y. State Rep. 133. 
 
 14 N. Y. State Rep. 157 ; Bennett v. « 59 Hun, 237, 28 N. Y. State Rep. 
 
 Smith, 23 Hun, 50 ; McKown v. Huu- 137. 
 
 ter, 30 N. Y. 635. ^ 33 Hun, 50. 
 
 3 Kerrains v. People, 60 N. Y. 221. 8 McCarthy v. Gallagher, 53 N. Y. 
 
 i People V. Gardiner, 57 N. Y. State State Rep. 176. 
 Rep. 18, 73 Hun, 66. 
 
358 EULES OF EVIDENCE. 
 
 § 21. Fictitious consideration fraudulently made up.— 
 
 The acts and transfers of a grantor pertinent to the question 
 of his intent are admissible against a defendant grantee in an 
 action to establish the intent of the grantor. It is not neces- 
 sary that the same facts offered, in evidence should tend to es- 
 tablish the intent of both. When a part of the consideration 
 for a transfer of real estate is fictitious, and it was made by 
 the grantor with a fraudulent intent, to which the grantee was 
 a party, the convej^ance cannot be sustained to the extent of 
 the adequate and honest part of the consideration ; but the 
 deed is wholly void, and cannot stand to any extent as security 
 or indemnity.^ 
 
 § 23. Burden of proof on creditor to show fraud.— The 
 owner of property can make a voluntary settlement thereof 
 upon his wife or any one else without consideration, provided 
 he has ample propert}' left to satisfy all the just claims of his 
 creditors. If the grantor remains solvent after the convey- 
 ance, and has sufficient property left to satisfy all his just 
 debts, then the convej'ance, whatever his intention was, can- 
 not be a fraud upon his existing creditors; and when a judg- 
 ment creditor assails a conveyance made by the judgment 
 debtor, he cannot cast upon the grantee the omis of showing 
 good faith, and of establishing that the grantor was solvent 
 a,fter the convej'^ance, by simply showing that the conveyance 
 was not founded upon a valuable consideration. But the per- 
 son assailing the conveyance assumes the burden of showing 
 that it was executed in bad faith, and that it left the grantor 
 insolvent and without ample property to pay his existing 
 debts and liabilities.^ The character of a transaction is to be 
 determined by the circumstances surrounding the parties at 
 the time it took place. The validity of a. conveyance does not 
 depend upon subsequent events. The question in such cases 
 is the financial condition of the grantor at the time ; for if then 
 solvent, his subsequent insolvency will not invalidate the con- 
 veyance.' 
 
 1 Baldwin v. Short efc al, 135 N. Y. Loelir, 79 id. 433; Bank v. Mead, 93 
 558, 36 N. Y. State Rep. 138. N. Y. 637. 
 
 2 Pence v. Croan, 51 Ind. 338 ; Sher- 3 Kain v. Larkin et al, 131 N. Y. 
 man v. Hoagland, 54 id. 578 ; White- 300, 43 N. Y. State Rep. 197. 
 
 sel V. Hiney, 63 id. 168; MoCoIe v. 
 
BUEDEN OF PEOOF. 359 
 
 §23. To set aside an assignment for creditors. — In an 
 
 action against a person to have his assignment for benefit of 
 creditors declared fraudulent and void, it is competent upon 
 the question of intent to prove the nature and character of his 
 business transactions during a period of several months before 
 and down to the time of the assignment ; the use he made of 
 the avails of his property immediately preceding the assign- 
 ment; the negotiations he had with his creditors relative to 
 the payment or securing the payment of the same; the repre- 
 sentations which he made, if any, to induce his creditors not to 
 press the collection of their debts, and the statements which 
 he may have made to them during such negotiations as to his 
 solvency.' 
 
 TI. OONVEESION, DEMAND. 
 
 A honafide purchaser of personal property, wrongfully taken 
 from the possession of the owner, is not liable for conversion 
 until after demand and refusal.^ Where words are relied upon 
 to constitute a conversion, they must be uttered in proximity 
 to the property, under such circumstances as to show a deter- 
 mination to exercise dominion and control over it, and a defi- 
 ance of the owner's right.' 
 
 Vir. DEFENSES. 
 
 The party holding the affirmative of the issue, as a general 
 rule, takes the onus of proof; but there are numerous excep- 
 tions to this rule; and where the right of action depends upon 
 a negative averment, the party making it is charged with the 
 burden of proving it. In many cases only slight proof of the 
 affirmative of the issue is necessary to throw the burden of 
 proving the negative upon the defendant. These are instances 
 where the law presumes the affirmative of the issue. 
 
 § 24. Illustrations. — (1) The burden of proof is upon the 
 defendant to show an affirmative defense. Thus, the defend- 
 ant has the burden of proof of a defense that he is a bona fide 
 purchaser for value.* 
 
 (2) The burden of proof is on the defendant, in an action on 
 
 1 First Nat. Bank, etc. v. Warner 2 Ely v. Ehle, 3 N. Y. 506. 
 et al., 55 Hun, 130, 38 N. Y. State Rep. 3 Gillet v. Roberts, 57 N. Y. 38. 
 450. 4 Redewill v. Gillen, 4 N. M. 78. 
 
360 EULES OF EVIDENCE. 
 
 a policy of insurance, to prove the facts alleged in avoidance 
 of it.i 
 
 (3) A party pleading a forfeiture must prove it in every re- 
 spect.^ 
 
 (4) Proof that plaintiff's intestate was killed by the falling 
 of an unsafe wall of a building leased to a certain corporation, 
 but sublet, with his acquiescence, by the agents of anotlier 
 corporation, imposes upon the former corporation the burden 
 of showing the relations between the two companies in order 
 to relieve itself of responsibility for the accident.' 
 
 (5) "Where warranties have been qualified by a statement in 
 the application that the facts are true as far as known to the 
 applicant, the defendant must show knowledge.* 
 
 (6) Where defendant alleges a mistake he must prove it.^ 
 (Y) Where defendant claims an exemption from a prima 
 
 facie liability he must prove it.* 
 
 (8) An intermediate carrier, as well as the last one of con- 
 necting carriers, has the burden of showing that the goods 
 which were lost or injured before reaching the destination 
 were not delivered to it in the same condition that they were 
 in at the beginning of the trip.' This is upon the rule that in 
 all cases where the nature of the allegations is such as to show 
 that the defendant is peculiarly possessed of the knowledge 
 to disprove the issue, the law presumes the truth of the nega- 
 tive allegations, and the burden is upon the defendant to dis- 
 
 1 ^tna Life Ins. Co. v. Ward, 140 see Manning v. Maroney, 87 Ala. 563, 
 
 U. S. 76 ; Flynn v. Massachusetts Ben. 13 Am. St Rep. 67. 
 
 Ass'n, 152 Mass. 288; Scheufler v. STeall v. Consolidated Electric 
 
 Grand Lodge A. O. U. W. (Minn.), 20 Light Co., 119 N. Y. 654, 30 N. Y. 
 
 Ins. L. J. 241 ; Metropolitan S. F. State Rep. 117 ; Fitschen v. Thomas, 
 
 Ace. Ass'n V. Windover, 137 111. 417 ; 9 Mont 53 ; Dufford v. Smith, 46 N. 
 
 Traveler's Ins. Co. v. Murray, 16 Colo. J. Eq. 216. 
 
 290. BReinhardt v. Mentasti (Eng. Ch. 
 
 2Demifags v. Supreme Lodge K. of Div.), 61 L. T. Rep. (N. S.) 338, 40 Alb. , 
 
 P.. 60 Hun, 850, 38 N. Y. State Rep. L. J. 490 ; Gulf Coast & San Fran- 
 
 979, 14 N. Y. Supp. 834; Dickinson v. cisco R. Co. v. Hudson, 77 Tex. 494; 
 
 Leominster Sav. Bank, 153 Mass. 49. Crenshaw v. Bradley, 53 Ark. 318; 
 
 3 Timlin v. Standard Oil Co., 126 Whitely v. Clark, 29 111. App. 36; 
 
 N. Y. 514, 37 N. Y. State Rep. 906. Benson v. Morgan, 26 id. 23 ; Wick- 
 
 And see Blunt v. Barrett 35 N. Y. ham v. Terhune, 54 Hun, 639, 28 
 
 State Rep. 64, 134 N. Y. 117 ; Wheel- N. Y. State Rep. 850. 
 
 Wright V. Walsh, 43 Fed. Rep. 863. 7 Savannah F. & W. R, Co. v. Har- 
 
 *Waterbury v. Dakota F. & M. ris, 42 Am. & Eng. R. Cas. 457. 
 Ins. Co. (Dak.), 40 Alb. L. J. 513. And 
 
BURDEN OF PKOOF. 3C1'. 
 
 prove them. But the rule never attaches except in instances 
 where the law presumes the truth of the allegations until the 
 contrary is shown.^ 
 
 (9) In an action for breach of contract of hiring, the burden" 
 of proving that other work was or could have been obtained 
 by the employee is upon the employer.^ 
 
 (10) In an action for selling articles without a license, the- 
 burden is upon the defendant to show that he has complied 
 with the law and has a license to sell.^ But the presumption 
 of innocence is still with the defendant.* 
 
 (11) The presumption is that liquor is intoxicating, and the 
 defendant who is sued for selling intoxicating liquors assumes 
 the burden to remove the presumption of law.' So the pre- 
 sumption is that the neglect or refusal of a husband to sup- 
 port his wife is unlawful, and the burden is on him, when 
 charged therewith, to prove its lawfulness.* 
 
 (12) The burden of proof as to a distinct defense in a crim- 
 inal prosecution is on the defendant as an alihiJ But the bur- 
 den of proof in a criminal case never shifts when the defend- 
 ant relies on no distinct independent fact — such as insanity — 
 but confines his defense to the original transaction on which- 
 the charge is founded.^ 
 
 (13) After proof of an intentional killing with a deadly 
 weapon, the burden rests upon the defendant to prove a neces- 
 sity for the killing in self-defense, unless such fact arises out 
 of the evidence produced against him.' 
 
 (14) The burden of showing a release of a cause of action, 
 or a party from liability;^" or the statute of limitation j^^ or a 
 discharge by transfer of the cause of action ; '^ or mistake or 
 
 1 Sheldov V. Clark, 1 Johns. 513. State v. Howell, 100 Mo. 638 ; State 
 
 2 Brown v. Carlyle B. of E., 39 111. v. Ardoin, 49 La. Ann. 1145. 
 
 App. 573. 8 People v. Ribalsi, 104 Cal. 716; 
 
 3 Com. V. Holstine, 133 Pa. St. 357 ; People v. Travers, 88 Cal. 333. 
 Williams v. People, 131 111. 84; Pec- 9 Gibson v. State, 89 Ala. 131. 
 
 pie V. Fiilda, 53 Hun, 65, 33 N. Y. i" The American Eagle, 54 Fed. Rep. 
 
 State Rep. 418. 1010 ; Kortlander v. Elston, 53 id. 
 
 * Mugler V. Kansas, 137 U. S. 633. 180 ; Brooks v. Rodgers, 99 Ala. 433. 
 
 ■'State V. Schaffer, 43 Kan. 117. HKilbourBe v. Sulhvan County. 137 
 
 estate v. Schweitzer, 57 Conn. 533. N. Y. 170, 50 N. Y. State Rep. 376. 
 
 'Rudy V. Com., 138 Pa. St 500; '2 Potter v. Ogden, 49 N. Y. State- 
 Rep. 839, 136 N. Y. 384. 
 
SC2 EULES OF EVIDENCE. 
 
 fraud in making the contract sued upon ; ' or a rescission, or 
 accord and satisfaction;^ or that a lease sued on was surren- 
 dered ; ^ or that a contract is uU7'a vire/i* or unreasonable,* or 
 usurious ; ^ or a breach of warranty,' — is with the party alleg- 
 ing it. 
 
 (15) In a suit for infringement of a patent the defendant 
 has the burden of proving prior use, sale and exposure.^ 
 
 (16) In an action upon an insurance policy the burden is on 
 the insurer to prove breach of conditions, exceptions, fraud, 
 etc., set up by it.' Self-defense is an affirmative defense; so is 
 consent of owner or occupant of building entered; '" or, in a 
 prosecution for rape, that the defendant was under the age of 
 fourteen years." 
 
 (17) The defendant in a criminal action has the burden of 
 establishing his plea of insanity to such an extent as to create 
 a reasonable doubt,'^ but not by a preponderance of testimony." 
 
 § 25. Illegality of contract. — It is presumed that every 
 man obeys the law ; " and, as a general rule, illegality to be 
 admissible must be pleaded. It is never presumed. Oral evi- 
 dence is admissible to show illegal intent, though it contradict 
 
 lErvin v. Brooks, 111 N. C. 358; lo Kelly v. State, 31 Tex. Rep. 216. 
 
 Yosemite Com'rs v. Barnard, 98 Cal. n Sutton v. People, 145 111. 279. 
 
 199. 12 King V. State, 91 Tenn. 617 ; Faulk- 
 
 2 Chapin v. Pratt, 66 Hun, 628, 49 ner v. Territory (N. M.), 30 Pao. Eep, 
 
 N. Y. State Eep. 42. 905. 
 
 ' Hague V. Ahrens, 53 Fed. Rep. 58. is Loegrove v. State, 31 Tex. Crim. 
 
 * Gorder v. Plattsmouth Canning Rep. 491 ; People v. Bemmerly, 98 Cal. 
 
 Co., 36 Neb. 27, 41 Am. & Eng. Corp. 299. 
 
 Cas. 87. 1* United States v. Weed, 5 Wall. 62; 
 
 5 Badische A. & S. T. v. Schott Coxe v. Deringer, 83 Pa. St. 236 ; Mor- 
 (1892), 3 Ch. 447. rison v. King, 62 111. 30; Kobs v. 
 
 6 Holt V. Kirby, 57 Ark. 83 ; White Minneapolis, 22 Minn. 159 ; Cooper v. 
 V. Benjamin, 138 N. Y. 633, 53 N. Y. Granberry, 33 Miss. 117;*Isbell v. N. 
 State Rep. 151. Y. & N. H. R R Co., 25 Conn. 556; 
 
 ^ Orrick v. Stewart, 70 Miss. 109 ; Cobb v. Newcomb, 7 Clarke (Iowa), 
 
 Tasker v. Crane Co., 55 Fed. Rep. 449. 43 ; State v. Wenzel, 77 Ind. 438 ; Guy 
 
 8 Anderson V. Monroe, 55 Fed. Rep. v. Washburn, 33 Cal. Ill; Jones v. 
 396. Muisbach, 36 Tex. 235 ; Wood v. More- 
 
 9 Ferine v. Grand Lodge A. O. U. house, 45 N. Y. 368 ; Shorey v. Husaey, 
 W., 40 Am. & Eng. Corp. Cas. 407 ; 33 Me. 579 ; Drake v. Mooney, 31 Vt 
 Spencer v. Citizens' Mut. L. Ins. Co., 617 ; Jones v. Boston, 104 Mass. 461 ; 
 142 N. Y. 505, 60 N. Y. State Rep. 96 ; Dupuis v. Thompson, 16 Fla. 69; 
 Sutherland v. Standard L. & Ace. Ins. Henry v. Dulle, 74 Mo. 443; Mathews 
 Co., 33 Ins. L. J. 353, 87 Iowa, 505. v. Buckingham, 22 Kan. 166. 
 
BURDEN OF PEOOF. 363 
 
 the terms of the written instrument. The presumption is that 
 the law is known abroad as well as within this state, but not 
 to persons not citizens of this state. Where the defense is 
 that a contract was made to compound a felony, the party- 
 alleging it must show that there was an agreement to com- 
 pound felony, and that the plaintiff knew the illegal consider- 
 ation at the time of making the contract, and that the contract 
 was the result of such agreement.^ A contract made on Sun- 
 day, delivered on a secular day, is not illegal. The same rule 
 prevails if a subsequent ratification is made on a secular day. 
 §26. Bona Me holder — In general. — A holder of nego- 
 tiable paper who has taken it (1) bona fide, (2) without no- 
 tice of dishonor and of existing defenses, (3) for a valuable 
 consideration, (4) in the usual course of business, (5) and be- 
 fore maturity, is a iona fide holder and can recover on the 
 paper, and is not subject to the defenses which do not appear 
 on the face of the paper which might be set up against the 
 original payee or a subsequent holder not a bona fide holder. 
 One is not a bona fide holder who took the paper under cir- 
 cumstances which ought to have excited the suspicions of a 
 prudent and careful man.^ It is said that the bona fide char- 
 acter of a holder can only be destroyed by proof of his partici- 
 pation in a fraudulent transfer of an instrument,' although it 
 is said that it is a man's duty to do all in his power to prove or 
 disprove any well-grounded suspicion as to the validity of a 
 negotiable instrument that might find lodgment in his mind, 
 before he can claim to be a bona fide holder.^ It will be suflB- 
 cient if the circumstances are of such a strong and pointed 
 character as necessarily to cast a shade upon the transaction 
 
 1 Gage V. Fisher, 31 L, R. A. 551, 5 Conn. 388 ; Phelan v. Moss, 67 Pa. St. 
 
 N. D. 297; Cowan v. Fairbrothers, 33 63; Elliott v. Martin, 6 Md. 509;"Witte 
 
 L. R. A. 839, 118 N. C. 406. v. Williams, 8 S. C. 290; Grenaux v. 
 
 2Gill V. Cubitt, 3 Barn. &Cres. 466; Wheeler, 6 Tex: 536; Houry v. Ep- 
 
 Strange v. Wigney, 6 Bing. 677 ; pinger, 34 Mich. 89 ; Johnson v. Way, 
 
 Snow V. Peacock, 2 C. & P. 215 ; Beck- 37 Ohio St. 374 ; Spreeves v. Allen, 79 
 
 with V. Corrall, 2 C. & P. 259. 111. 553 ; Edwards v. Thomas, 66 Mo. 
 
 3 Shaw V. Railroad Co., 101 U. S. 564 ; 433 ; Gage v. Sharp, 24 Iowa, 19 ; 
 
 Tiedeman on C. P., § 290; Spooner Kelly v. Whitney 45 Wis. 110. 
 V. Holmes, 102 Mass. 503 ; Kellogg v. * Angle v. N. W. Life Ins. Co., 93 
 
 Curtis, 69 Me. 212; Welsh v. Sage, 47 U. S. 330 •, Rowland v. Fowler, 47 
 
 N. Y. 147; Hamilton v. Vought, 34 Conn. 347. 
 N. J. L. 190 ; Brush v. Scribner, 11 
 
36i EULES OF evidp:ncx 
 
 and to put the holder upon inquiry.^ It does not afifect the 
 lonafide holder's title that he knows of the maker's death 
 when he purchases the note, unless he knew that it was ac- 
 commodation paper in the hands of the payee. Mere knowl- 
 edge that the instrument is accommodation paper will not 
 prevent the purchaser from becoming a ionafide holder of the 
 instrument. The &y«.a,^rfe holder is not subject to equitable 
 defenses, so called. But those defenses may affect his title if 
 he fails to prove his honafide possession when the law throws 
 upon him the burden of proof. A party to negotiable paper, 
 who has given currency to it by passing it, is said not to be a 
 competent witness to show its invalidity.^ The possession of 
 paper by an indorsee or by an assignee, where the paper is 
 paj^able to bearer or indorsed in blank, is prima facie proof of 
 honafide ownership, and the burden of proving the contrary is 
 thrown upon the defendant in the action;' but the possession 
 of an instrument payable to order, unindorsed by the payee 
 or the last indorsee, is not. If the instrument is payable to 
 bearer, there is nothing on the face of the instrument to indi- 
 cate that it has been transferred; hence proof of want of con- 
 sideration will throw upon the holder the burden of proving 
 that he is a lona fide holAov.^ The burden of proof is shifted 
 to the holder when it is shown that the instrument has been 
 stolen or lost.^ If an instrument of indebtedness which is se- 
 cured by a mortgage be a negotiable note, the mortgage, being 
 treated as incident to the debt, receives from the note its ne- 
 gotiable character, and passes to the indorsee free from the 
 equities existing between the mortgagee and the mortgagor; 
 but the indorsement must be made before the debt falls due.' 
 
 1 Story on Prom. Notes, § 197. i Bissell v. Morgan, 11 Cush. 198. 
 
 2 Houghton V. Paige, 1 N. H. 60. 5 Union Nat. Bank v. Barber, 56 
 
 3 Commissioners v. Olark, 94 U. S. Iowa, 559; Worcester Co. Bank v. 
 285 ; Faulkner v. Ware, 34 Ga. 498 ; Doroliester Bank, 11 Cusli. 488 ; Math- 
 Hortou V. Bayne, 52 Mo. 531 ; Hall v. ews v. Poythress, 4 Ga. 887 ; Mer- 
 Allen, 37 Ind. 541 ; Jackson v. Love, chants' & P. Nat Bank v. Trustees, 
 83 N. C. 405 ; Mei-chants' P. N. B. v. 62 Ga. 271. 
 
 Trustees, 62 Ga. 271; Blum v. Log- egprague v. Graham, 29 Me. 160; 
 
 gins, 53 Tex. 136 ; Davis v. Bartlett, Gould v. Marsh, 1 Hun, 566 ; Button 
 
 12 Ohio St. 544; McCann v. Lewis, 9 v. Ives, 2 Mich. 515: Cornell v. Hicli- 
 
 Cal. 246; Palmer v. Nassau Bank, 78 ens, 11 Wis. 353; Webb v. Hazelton, 
 
 111. 380 ; In re Tallahassee Man. Co., 4 Neb. 308 ; Burkhans v. Hutcheson, 
 
 64 Ala. 593. 25 Kan. 631 ; Murray v. Jones, 50 Ga. 
 
BDEDEN OF PROOF. 365 
 
 § 27. Defenses to, liow proved. — ^ Those who seek to secure 
 the advantages which the commercial law confers upon the 
 holders of bank bills and negotiable paper must bring them- 
 selves within the conditions which the law prescribes to es- 
 tablish the character of a lonafide holder. They are entitled 
 to the benefits of that rule only when they have purchased 
 such p9,per in good faith, in the usual course of business, be- 
 fore maturity, for full value, and without notice of any facts 
 affecting the validity of the paper. The fact that a party took 
 paper before maturity and paid the full value thereof, in the 
 absence of other facts, undoubtedly affords a presumption of 
 the good faith of the transaction. But where it appears that 
 such paper has been fraudulently or illegally obtained from 
 its owner or maker, and under such circumstances that the 
 person putting it in circulation could not maintain an action 
 thereon, it is incumbent upon the holder, in order to succeed, 
 to go farther and show the circumstances under which it came 
 into his possession and that he has acted in good faith in the 
 transaction. What constitutes good faith in such transactions 
 has been the subject of frequent discussion in the books; and 
 while differences of opinion may exist on some points, there is 
 perfect uniformity among them upon the point that a want of 
 good faith in the transaction is fatal to the title of the holder, 
 and that gross carelessness, although not of itself sufficient, as 
 a question of law, to defeat title, constitutes evidence of bad 
 faith. The requirement of good faith is expressed in the very 
 term b}'' which a holder is protected, and is fundamental in 
 the maintenance of the character claimed to be protected.^ 
 The' rule may perhaps be said to resolve itself into a question 
 of honesty or dishonesty, for guilty knowledge and wilful 
 ignorance alike involve the result of bad faith.^ 
 
 Bad faith is predicated upon a variety of circumstances, some 
 of them slight in character and others of more significance. 
 A perfectly upright, honest man might sell a note which had 
 been stolen, and the explanation might prevent even the taint 
 of wrong on his part; while the explanation, although falling 
 far short of proof of actual guilt, might leave upon the mind 
 
 109 ; Preston v. Morris, 43 Iowa, 549 ; 1 1 Parsous on Notes & Bills, 358 ; 
 
 New Orleans, etc. v. Montgomery, 95 Goodman v. Harvey, 4 Ad. & E. 870. 
 
 U. a 16; Potts V. Blackwell, 4 Jones 2 Murray v. Lardner, 3 Wall. 131. 
 (N. C.) Eq. 58. 
 
306 EULES OF EVIDENCE. 
 
 an apprehension that he either directly or impliedly connived 
 at the wrong, or at least was willing to deal in securities and 
 keep his eyes and ears closed so that he should not ascertain 
 the real truth. In Hall v. Wilson' the court defined the con- 
 ditions necessary to render a person a lona fide holder within 
 the meaning of the mercantile law in the following language: 
 "To entitle the holder of negotiable securities which have been 
 fraudulently, feloniously, or without consideration, obtained 
 and put in circulation, to the benefit of this rule, he must have 
 become such holder in good faith for a full and fair considera- 
 tion, and in the usual course of business, and without notice of 
 the defect or infirmity in the title. A sufficient number of au- 
 thorities have been cited to show the uniformity with which 
 the cases in the highest courts of the country hold that, upon 
 proof by the defendant that his obligations have been fraudu- 
 lently or illegally obtained and put in circulation, the person 
 seeking to recover upon them must show not only that he 
 bought before maturity and paid value, but also the circum- 
 stances under which he acquired the paper, with the view of 
 enabling the jury to determine whether he acted in good faith 
 or not." It makes no difference in the question Avhether the 
 plaintiff pursues the orderly course of first presenting and prov- 
 ing his note, relying upon the presumption of hona fides which 
 accompanies the possession of the paper, and delays making 
 proof of the circumstances of his purchase until after the de- 
 fendant-gives evidence of his defense, or makes the proof of 
 such circumstances a part of his affirmative case. The burden 
 of making out good faith is always upon the party assert- 
 ing his title as a hona fide holder in a case where the proof 
 shows that the paper has been fraudulently, feloniously or 
 illegally obtained from its maker or owner. Such a party 
 makes out his title by presumptions until it is impeached by 
 evidence showing the paper had a fraudulent inception, and 
 when this is done the,plaintiff can no longer rest upon the pre- 
 sumption, but must show affirmatively his good faith.^ When 
 a note is purchased for less than its face of a person who ob- 
 tained it by fraud or without consideration, it is void for usury 
 
 » 16 Barb. 548. York Building & L. Co., 148 N. Y. 198 ; 
 
 2 Conant v. Johnston, 1G5 Mass. 450 ; Canajoliarie Nat Banlr v. Diefendorf, 
 
 Hosier v. Beard, 53 Ohio St. 349 ; 33 N. Y. State Rep. 2S9, 123 N. Y. 191 ; 
 
 American Exch. Nat. Bank v. New Franc v. Dickinson, 125 N. Y. 710 ; 
 
BUEDBN OF PEOOF, 367 
 
 within the doctrine of Hall v. Wilson,^ except as against a na- 
 tional bank. As against such a bank the forfeiture is limited 
 to the interest. As a general rule the indorsement of a nego- 
 tiable note is in itself jprima facie evidence that the indorse© 
 has paid value for it ; but when the payee or indorsee has pro- 
 cured the note by fraud, this presumption is rebutted and the 
 holder cannot recover without proving that he has paid value.^ 
 In an action upon a promissory note brought by an indorsee 
 thereof, where the defense is that it was procured by false 
 representations, the testimony of the plaintiff that he obtained 
 the note for value is not conclusive evidence against the defend- 
 ant of the existence of that fact. The defendant has the right 
 to have the question of plaintiff's credibility submitted to the 
 jury, and to insist upon it that the plaintiff's evidence does nofe 
 establish the truth of the statement made. That is the rule in 
 all cases where a vital fact may depend upon the testimony 
 either of a party or an interested witness.^ 
 
 §28. Usury. — Where usury is advanced as a defense it 
 must be pleaded in order to be admissible, and the general 
 allegation without stating the facts is not enough. There is 
 no presumption that the usury laws of this state prevail in 
 any other state or country.* The affirmative of the issue is 
 upon the defendant to prove not merely usurious intent but 
 the fact from which usurious intent is to be presumed. The 
 fact that the contract is in writing does not exclude oral evi- 
 dence to show that it was usurious. The substantial evidence 
 as to rate exacted or as to ground of pretext on which it was 
 exacted is material to avoid if plaintiff was not misled to his 
 prejudice. The evidence must sustain the inference that both 
 parties were cognizant of the facts essential to usury, and that 
 there was intent both on the part of the lender and of the bor- 
 rower. Reservation of interest in cases of legal limit is pre- 
 sumptive evidence of usury. The subsequent payment of a 
 
 King V. Doanes, 139 U. S. 166: Lytle 21 Dan. on Neg. Inst. 612. 
 
 V. Lansing, 147 id. 59; Wamling v. SElwood v. Western U. T. Co., 45 
 
 Duffey, 14 Mont. 567, 43 Am. St. Rep. N. Y. 549 ; Kavanagh v. Wilson, 70 
 
 658; Grant V. Walsh, 145 N. Y. 50a; N. Y. 177; Rochester, etc. Co. v. 
 
 Hodson V. Eugene Glass Co., 156 111. Loomis, 45 Hun, 94, 9 N. Y. State 
 
 397; Burke v. American L, & T. Co., Rep. 592; Honegger t. Wettstein, 94 
 
 155 U. S. 534; Charles v.Remlck, 156 II I. N: Y. 252; Pelly v. Onderdonk, 13» 
 
 327 ; Brown v. James, 2 App. Div. 105. N. Y. 598. 
 
 1 16 Barb. 550. ^Dearlove v. Edwards, 166 III. 619. 
 
368 EULES OF EVIDENCE. 
 
 bonus in addition to interest will, without direct evidence of 
 agreement, sustain the finding of an original agreement to 
 pay it. Evidence of usage cannot be received to satisfy action 
 -otherwise proved to be usurious. Evidence that there had 
 been an intent to deliver, and no delivery, is not enough on 
 this point. Usury is a crime, and he who alleges it as a de- 
 fense to an obligation to pay money must establish it by clear 
 and satisfactory evidence. He enters upon the defense with 
 the presumption against the violation of the laws and in favor 
 of the innocence of the party charged with the usury. He 
 cannot properly claim to have the usury inferred where the 
 evidence is inconclusive and just as consistent with the absence 
 as with the presence of usury. It is a just requirement that 
 all the facts constituting the usury should be proved with rea- 
 sonable certainty, and that they shall not be established by 
 mere surmise and conjecture or by inferences entirely uncer- 
 tain.i 
 
 §29. Constructive fraud — Burden of proof. — Fraud as 
 a general thing is not presumed, but must be proved by the 
 party seeking to relieve himself from an obligation on that 
 ground. When, however, the relations between the parties 
 appear to be of such a character as to render it certain that 
 they do not deal on terms of equality, but that either on the 
 one side from superior knowledge of the matter derived from 
 a fiduciary relation, or from overmastering influence, or on 
 the other from weakness, dependence or trust justifiably re- 
 posed, unfair advantage in a transaction is rendered probable, 
 then the burden is shifted, the transaction is presumed void, 
 and it is incumbent upon the stronger party to show affirma- 
 tively that no deception was practiced, no undue influence 
 was used, and that all was fair, open, voluntary and well un- 
 derstood. So undue influence, which is a species of fraud, 
 when relied upon to annul a transaction inter partes, or a 
 testamentary disposition, must be proved and cannot be pre- 
 sumed. But the relation in which the parties to a transaction 
 stand to each other is often a material circumstance, and may 
 <of itself, in some cases, be sufficient to raise a presumption of 
 
 iRosenstein v. Fox, 150 N. Y. 354; 114 N. Y. 453, 23 N. Y. State Rep. 759; 
 
 Matter of Consalus, 95 id. 340 ; Still- Whita v. Benjamiu, 138 N. Y. 623, 53 
 
 man v. Noithrup, 109 id. 473, 16 N. Y. I'J. Y. State Rep. 151. 
 ^State Rep. 417; Baldwin v. Doying, 
 
BUEDBN OF PROOF. 3G9 
 
 its existence; and where the situation is shown, then there is 
 cast upon the party claiming the benefit or advantage the 
 burden of relieving himself from the suspicion thus engen- 
 dered, and of showing, either by direct proof or by circum- 
 stances, that the transaction was free from fraud or undue 
 influence, and that the other party acted without restraint, 
 and under no coercion or any pressure, direct or indirect, of 
 the party benefited. This does not proceed upon a presump- 
 tion of the validity of the particular transaction, without proof. 
 The proof is made, in the first instance, when the relation and 
 the personal intervention of the party claiming the benefit is 
 shown.^ Thus, one who has acquired a position of superior 
 influence or advantage over another, by reason of relation- 
 ship, trust or confidence, will be required to show that his 
 business dealings with the other were conducted fairly and 
 honestly.^ Thus, a residuary legatee who himself wrote the 
 will has the burden of showing its validity and that the tes- 
 tator knew its contents.' In other cases the burden of proof 
 of undue influence is on the party alleging it.* 
 
 Tin. PAYMENT. 
 
 (1) As a general rule payment is not admissible in evidence 
 unless it is pleaded, and the party pleading has the burden of 
 proof.° 
 
 (2) Under a general allegation of payment the party may 
 show any mode of payment; but if payments pleaded are spe- 
 cific, evidence of other payments are not admissible.* 
 
 (3) Part payment accepted in full may be proved as a bar, 
 
 1 Green et al. v. Roworth et al., 113 98 Ala. 367 ; Re Pitt's Estate (Wis.), 
 N. Y. 463, 23 N. Y. State Rep. 149. 46 Alb. L. J. 71 ; Maddox v. Maddox, 
 
 2 Jones V. Pullen, 115 N. C. 465; 114 Mo. 35; Re Edson's Will, 70 Hun, 
 Clarke v. Kirschner, 113 Mo. 290. 122, 53 N. Y. State Rep. 807; Cliand- 
 
 3 Greene v. Greene, 42 Neb. 624; Ra ler v. Jost, 98 Ala 596; Livingston's 
 Mayer's Estate, 84 Hun, 586 ; Garrett Appeal, 63 Conn. 68 ; Williard v. Pin- 
 V. Heflin, 98 Ala. 615 ; Hill v. Miller, ard, 65 Vt 160. 
 
 50 Kan. 659; Little v. Knox, 98 Ala. ^Hawes v. WoUcock, 30 Wis. 213; 
 
 179. Quin V. Lloyd, 41 N. Y. 349; Von 
 
 * Johnson v. Northwestern Mut L. Giesen v. "Von Giesen, 10 N. Y. 316. 
 Ins. Co., 56 Minn. 372; Unruh v. SHoddy v. Osborn, 9 Iowa, 517; 
 
 Lukens, 166 Pa. St. 334 ; McParland Farmers' & Citizens' Bank v. Sher- 
 
 V. Larkin, 155 111. 84; Bulger v. Ross, man, S3 N. Y. 63. 
 24 
 
S70 BULKS OF EYIDENOE. 
 
 there being a sealed release, on proof that it was made for a 
 compromise and accepted on release of the balance.^ In other 
 cases payment and acceptance of a sum of money less than 
 the liquidated debt is only part payment, and a receipt in full 
 may be rebutted.^ 
 
 , (4) It is competent to show the admission of the creditor or 
 of his agent, made within the scope of his authority, that he 
 had received payment.' 
 
 (5) Crediting on an open account implies the intent to apply 
 to the early items, but crediting on a private account is not 
 conclusive unless communicated to the debtor. 
 
 (6) At common law and in equity great lapse of time with- 
 out part payment may tend to show payment. The presump- 
 tion applies to any obligation that may be extinguished by an 
 act of payment. This presumption is not like the statute of 
 limitation, but a mere bar to the remedy, and is a. prima facie 
 extinguishment of the debt; not, however, available to support 
 allegations of payment as ground of affirmative relief. 
 
 (7) Possession of negotiable security payable to bearer is 
 presumptive evidence of authority to receive paj^raent. The 
 presumption of authority terminates upon the principal's death.* 
 
 (8) Payraebt of a debt to a sheriff who holds an execution 
 against the debtor is good against the creditor. The mere 
 issue and delivery of an execution is not evidence of payment 
 of judgment. A levy on chattels is presumptive evidence of 
 satisfaction only when the property of the debtor has been 
 applied to the execution.' 
 
 (9) A check or draft drawn by debtor payable to order of 
 creditor and shown to have been paid by the bank or drawee 
 to the creditor and indorsed by him, and shown to have been 
 paid, without other evidence that it was paid to him, is pre- 
 sumptive evidence of the payment of the amount by the 
 debtor to the creditor without evidence that the creditor re- 
 ceived the paper from the debtor. 
 
 (10) Payment of collateral security is presumptive evidence 
 of payment on the principal. 
 
 (11) In a conflict of evidence on a question of payment of 
 
 1 Blair v. Waite, 69 N. Y. 113. * Megary v. Funtis, 5 Sandf. 376. 
 
 2Keeler v. Salisbury, 33 N. Y. 648; » United States v. Dashiel, 3 Wall. 
 
 Elswoi-th V. Fogg, 35 Vt. 355. 688. 
 3 Fort V. Gooding, 9 Barb. 371. 
 
BUEDEN OF PEOOF. Sfl 
 
 a written instrument, possession of security by the creditor is 
 competent as evidence of non-payment.' But possession of the 
 debtor or obligor is not conclusive presumption of payment.^ 
 
 (12) The defendant may show that, after the time when the 
 debt sued for is alleged to have become due and payable, the 
 plaintiff gave him a promissory note for the payment of 
 money. Such evidence is a legal presumption that no previous 
 indebtedness from defendant to plaintiff existed. 
 
 {IB) A receipt remaining in the creditor's possession is not, 
 withflit explanation, evidence that the payment acknowledged 
 in it was made;' but a receipt, unexplained and uncontra- 
 dicted, when in the possession of the debtor is conclusive.* 
 
 (14) The payment of a less sum, if accompanied with any- 
 thing given by the debtor to the creditor which the law can 
 construe as a benefit, and accepted as satisfaction of the whole, 
 is a good accord and satisfaction. 
 
 (15) Upon a showing that the creditor received the obliga- 
 tion of a third person to be satisfaction if paid at maturity, the 
 burden is on the defendant to prove that it was so paid. 
 
 (16) It seems that a party cannot prove the payment of a debt 
 by the transfer of securities without producing the securities.* 
 
 (17) Paper made by the debtor or any other person, or the 
 draft or order of the debtor taken by the creditor of the debtor, 
 is presumed not to have been accepted in payment, but only as 
 conditional payment suspending the right of action. The bur- 
 den is on the debtor to show that it was given and received as 
 payment." It is otherwise as to the obligations of other per- 
 sons transferred by the debtor to the creditor at the time of 
 the creation of the debt.'' And the acceptance of negotiable 
 paper on an agreement that it shall be satisfaction extinguishes 
 the original debt.' 
 
 (18) The delivery of property other than money by the debtor 
 to the creditor is presumed to be security rather than payment. 
 
 (19) Where the individual note of one of two or more joint 
 
 iBrembridge'v. Osborn, 1 Stark. 609; Gibson r. Toby, 46 N. Y. 637; 
 
 374. Haines v. Pearce, 41 Md. 231 ; Nichols 
 
 2 Graves v. "Wood, 3 B. Hon. (Ky.) v. State, 46 Neb. 7J5. 
 34. 7 Young V. Stahelin, 34 N. Y. 258. 
 
 'Nelson v. Bolan, 37 Mo. 483. 8 Wesoott v. Keeler, 4 Bosw. 564; 
 
 * Lambert v, Seely, 17 How. Pr. 430. Ostrander v. Scott, 161 111. 339 ; Todd 
 
 'Daniel v. Johnson, 29 Ga. 207. v. Kighmie (N. Y.), 4 App. Div. 9. 
 
 "Nightingale v. Chaffee. 11 R. I. 
 
372 E0LBS OF EVIDBNOE. 
 
 debtors or parties is given for the joint debt, evidence that 
 judgment was subsequently recovered on it is not enough to 
 show that it operated as payment. 
 
 (20) Tender cannot be proved unless it is shown that the 
 tender has been kept good and the money paid into court. 
 The tender of a check of a party for money, if not objected to, 
 is sufficient. 
 
 (21) On the mere question of payment it is not competent 
 to show that it was the debtor's habit to pay his debts promptly, 
 nor that he was responsible. But such evidence may hw com- 
 petent on the question whether the debt ever existed. 
 
 (22) The fact of payment may be presumed from any circum- 
 stance which renders that fact probable ; ^ as, for instance, the 
 settlement of accounts subsequent to the accruing of the debt, 
 in which no mention is made of it.^ So where a landlord gives 
 a receipt for rent due up to a certain day, all former arrears 
 are presumed to have been paid ; for it is likely that he would 
 take the debt of longest standing first.' So it is said that where 
 there is a competition of evidence on the question whether a 
 security has or has not been satisfied by payment, the posses- 
 sion of the uncanceled security by the claimant ought to turn 
 the scale in his favor, since in the ordinary course of dealing 
 the security is given up to the party who pays it.* Where land 
 is conveyed to trustees in trust to pay debts, with remainder 
 over, payment of the debts may be presumed from long pos- 
 session by the remainderman, joined with other circumstances.' 
 
 (23) A debt once proved to have existed is presumed to con- 
 tinue unless payment or some other discharge be either proved 
 or established bj'' circumstances.' A receipt under hand and 
 seal is the strongest evidence of payment, for it amounts to 
 an estoppel, conclusive on the party making it ; ' but a receipt 
 under hand alone,' or a verbal admission of payment,' is in 
 general onlj prima faoie evidence of it, and may be rebutted. 
 
 1 3 Stark. Ev. 823 (3d ed.); Cooper 374; Dig., lib. 22, tit 8, I. 34; Mascard 
 
 V. Turner, 2 Stark. Ev. 497 ; Lucas v. de Prob. Concl. 477. 
 
 Novisilienski, 1 Esp. 296 ; Sellen v. s Anon., Vin. Abr.. Ev., Q., pi. 7. 
 
 Norman, 4 C. & ?. 80 ; Pfiel v. Van- « Jackson v. Irvin, 3 Camp. 50 ; 
 
 batenberg, 2 Camp. 439. Roman Law Cod., lib. 4, tit. 191. 
 
 ^ Colsell V. Budd, 1 Camp. 27 ; Dig., ' Gilb. Ev. 158 (4th ed.). 
 
 lib. 23, tit. 3, 1. 26. 8 1 Greenl. Ev., §g 312, 305 (7th ed.). 
 
 J Gilb. Ev. 157 (4th ed.). 'Tayl. Ev., §§ 171, 788 (4th ed.). 
 
 ^Brembridge v. Osborn, 1 Stark, 
 
BUKDEN OF PKOOF. 373 
 
 IX. ASSIGNMENT. 
 
 § 30. In general. — The assignment of a debt may be mad© 
 by parol,* and the courts will presume an assignment from 
 the fact that the plaintiff, being entitled to relief and with in- 
 tent to enforce the claim, for his own reimbursement paid the 
 one who was legally entitled.^ The test of an equitable as- 
 signment is whether the debtor would be justified in paying the 
 debt or the portion contracted to be paid to the person claim- 
 ing to be assignee. There must be shown to have been sur- 
 render of control over the property assigned by the assignor 
 to the assignee.* "Where there is no consideration for assign- 
 ment shown, and no delivery, the assignment, if for the price 
 of fifty dollars or over, or where the value of the property is 
 not fixed by the assignment, and is proven to be worth that 
 sum, must have been evidenced by some writing.* 
 
 § 31. Presumed when. — As a general rule the assignment 
 of a debt carries with it the title to an incidental or collateral 
 securitj' which is exclusively applicable to it. Thus, upon proof 
 of the assignment of a bond, note or debt, a presumption arises 
 that the mortgages given to secure it passed with it.° But an 
 assignment of a. mortgage does not carry a bond or note 
 to secure which it was given.* It is a matter of intent whether 
 upon the assignment of a thing in action it carries the right 
 to those remedies inseparable from it which might have been 
 expressly assigned. 
 
 § 32. Consideration of. — Unless required by the statute of 
 frauds, proof of a consideration for an assignment is not es- 
 sential to the right of the assignee to maintain an action upon 
 the assigned claim.' An absolute assignment transfers the 
 legtil title ; ' and the fact that part of the claim assigned when 
 
 1 Perkins v. Peterson, 2 Colo. App. 6 Patteson v. Hull, 9 Cow. 747 ; 
 343; Hooker v. Eagle Bank, 30 N. Y. Jackson v. Blodgett, 5 id. 302 ; Cady 
 83. V. Sheldon, 38 Barb. 108. 
 
 2 Moore v. Davis, 57 Mich. 251 ; « Merritt v. Bartholick, 36 N. Y. 44. 
 Fairbanks v. Sargeant, 117 N. Y. 320 ; ' Bonner v. Beaird, 48 La. Ann. 
 27 N. Y. State Rep. 320. 1086 ; Merrick v. Brainard, 38 Barb. 
 
 ' Lanigan v. Bradley, etc. Co., 50 574. 
 N. J. Eq. 201. 8 Cummings v. Morria, 25 N. Y. 
 
 <Buskirk v. Cleveland, 41 Barb. 625. 
 610; Clark v. Fey, 121 N. Y. 470; 31 
 N. Y. State Rep. 424 
 
374 ETJLES OF EVIDENCE. 
 
 collected was to be paid to the assignor will not affect its ab- 
 soluteness.i In a written assignment a consideration will be 
 presumed,^ and the defendant cannot show that there was no 
 consideration.' It is sufficient to show that the assignee's 
 recovery will bar the right of the assignor. If it was valid as 
 between the parties to it the defendant cannot question it, 
 though he show fraud on the part of the parties; except that 
 proof that the assignment was absolutely illegal is competent, 
 as where an attorney purchased a claim for the purpose of 
 bringing an action on it.^ 
 
 §33. By gift. — If the plaintiff claims under a gift inter 
 vivos, there must be proof not only of an intention to give, 
 but such a transfer of the subject-matter as will pass the 
 donors title at once to the donee.' A gift of a colt may be 
 effected by a simple declaration where it is on the donee's 
 farm ; * and a gift of savings-bank deposits may be consum- 
 mated by the delivery of the savings-bank book without any 
 written order of the donor.' So a promissory note will pass 
 by delivery without indorsement as a gift inter vivos? So a 
 gift of a debt may be made by giving a receipt.' 
 
 § 34. Execution and delivery of written assignment. — 
 The execution of a written assignment may be proved like 
 any other instrument.^" Proof of delivery is shown when the 
 plaintiff produces the assignment duly executed." A general 
 assignment will pass all articles though not named in a sched- 
 ule. Where the assignment is made by a corporation the plaint- 
 iff must show the existence of the corporation, but as against 
 the debtor an assignment is presumed valid.'^ Where the as- 
 signment is questioned by creditors of the corporation, the 
 
 iDurgin v. Ireland, 14 N. Y. 323. 'Ridden v. Thrall, 35 N. T. State 
 
 2 Eno V. Crook, 10 N. Y. 60. Rep. 913 ; 125 N. Y. 573. 
 
 3 Stone V. Frost, 61 N. Y. 614. 8 Bingham v. Stage, 128 Ind. 381. 
 <Mann v. Fairohild, 8 Abb. Ct. App. ' MoKenzie v. Harrison, 130 N. Y. 
 
 Dec. 152 ; Waterbury v. Westervelt, 260 ; 30 N. Y. State Rep. 434. 
 
 9 N. Y. 598 ; Petersen v. Chemical i" Holbrook v. New Jersey Zinc 
 
 Bank, 33 id. 31. Co., 57 N. Y. 616. 
 
 6 Matthevrs v. Hoagland, 48 N. J. H Story v. Bishop, 4 E. D. Smith, 
 
 Eq. 455; Sourwine v. Claypool, 138 423. 
 
 Pa. St. 136 ; Backer v. Meyer, 43 12 Kennedy v. Cotton, 38 Barb. 59 ; 
 
 Fed. Rep. 203. Belden v. Meeker, 47 N. Y. 307. " 
 
 6 Porter v. Gardner, 60 Hun, 571 ; 
 39 N. Y. State Rep. 671. 
 
BHEDEN OF PEOOF. 375 
 
 plaintiff must show that he was a "bona fide purchaser for value 
 without notice.^ To show the authority of the officers of the 
 corporation to make the assignment, their official character may 
 be proved by witnesses.^ In an action between a stranger to 
 a written assignment and a party to it, as well as between 
 strangers, either may give parol evidence to vary it; and unless 
 both parties to the action are parties to the instrument sued 
 upon, either can give parol evidence to vary it.' The assignee 
 of a chose in action, except negotiable paper before due, takes 
 it subject to all equities existing against the assignor at the 
 time of the assignment in favor of the debtor and his as- 
 signees and representatives.* After a debtor has notice of 
 the assignment of a claim against him, any dealings between 
 him and the assignor are no-t binding upon the assignee.' 
 
 § 35. By trustees, executors, etc. — In an action by a 
 trustee,- assignee in insolvency, executor, etc., or by one claim- 
 ing as a purchaser from such representative persons, the 
 plaintiff is bound to prove the authority of such representa- 
 tives to the chose in action sued upon.' 
 
 X. OOEPOEATIONS AND COEPOEATE EXISTENCE. 
 
 § 36. De facto. — Mr. Abbott, in his Trial Evidence,' states 
 the rule as to corporations in substance as follows : 
 
 (a) "When it becomes necessary to prove the incorporation 
 of either the plaintifif or defendant it is enough to prove ex- 
 istence under the color of law, without proving a regular 
 origin of existence in conformity to law.* In the following 
 cases it is necess&,ry to give strict proof of incorporation, viz. : 
 (1) Where the question is whether there is a corporate power 
 to take by will; (2) in actions on subscriptions for stock; 
 (3) where it is attempted to exercise the right of eminent do- 
 
 1 Houghton V. McAuliflEe, 3 Abb. Hermans v. Ellsworth, 64 id. 161 ; 
 Ct. App. Dec. 409. Thayer v. Daniels, 113 Mass. 139. 
 
 2 Merchants' Bank v. State Bank, « Rockwell v. Brown, 54 N. Y. 310 ; 
 10 Wall. 604 Cone v. Puroell, 56 id. 649. 
 
 'Dempsey v. Kipp, 61 N. Y. 463; 'Pages 18-53. 
 
 Coleman v. First National Bank, 53 ' Benesoh v. John Hancock Mut 
 
 id. 388. L. Ins. Co., 38 N. Y. State Rep. 78, 16 
 
 * Green v. Warnick, 64 N. Y. 334 Daly, 393 ; Glenn v. Liggett, 47 Fed. 
 
 'Myers. V. Davis, 33 N. Y. 489; Rep. 473. 
 
376 KULES OF EVIDENCE. 
 
 main;* (4) in actions by the state to put an end to corporate 
 existence.^ In such cases the plaintiff must prove (1) legis- 
 lative sanction ; (2) existence under color of such sanction;' 
 (3) regularity of origin under such sanction.* 
 
 (5) " No presumption of incorporation arises from the fact 
 that the business w:is transacted by a president and secre- 
 tary;* and carrying on business in a corporate name is not 
 evidence of user which can be considered in aid of legal cor- 
 porate existence, where there is no law authorizing the mem- 
 bers to file their articles of incorporation or to become incor- 
 porated." The charter or statute under which the corporation 
 is formed is the best evidence of legislative sanction.' 
 
 (c) "The courts take judicial notice of the general law 
 under which corporations are formed, but not of the organ- 
 ization of the company under it. 
 
 {d) " Legislative sanction having been shown, the existence 
 of the corporation may be shown (1) by evidence that the 
 parties dealt together on the basis of a corporation ; (2) by 
 evidence of the formal acceptance of the charter, or the or- 
 ganization of the incorporators under the statute ; (3) by evi- 
 dence that they have actually proceeded to exercise corporate 
 franchise. 
 
 {e) "He who has in any way dealt with a company as a 
 corporation is presumed to have admitted its existence. And 
 a mere trespasser cannot require evidence of regular organiza- 
 tion.^ One who has received and enjoyed a consideration 
 from a company cannot require further proof of its cor- 
 porate power to contract; and he who has participated in the 
 steps of organization of a corporation cannot object to the 
 regularity of those steps. 
 
 1 Re Split Eock Cable Road Co., 128 » Clark v. Jones, 87 Ala. 474 
 
 N. Y. 408; 34 N. Y. State Rep. 169. « Eaton v. Walker, 76 Mich. 579; 
 
 ostein V. Bienville Water Supply Welch v. Old Dominion Min. & R 
 
 Co., 141 U. S. 67 ; Jones v. Dana, 24 Co., 56 Hun, 650 ; 31 N. Y. State Rep. 
 
 Barb. 398. 916. 
 
 'Hallstead v. Curtiss, 143 Pa. St 'Alloway v. Nashville, 88 Tenn. 
 
 358 ; Burton v. Rathbone, S. & Co., 510 ; Bow v. AUenstown, 34 N. H. 
 
 23 111. App. 654. 351. 
 
 * Toledo Electric Street R. Co. v. 8 Goulding v. Clark, 34 N. H. 14a 
 Toledo Const. Street E. Co., 26 Ohio 
 L. J. 172. 
 
BURDEN OF PEOOF. 377 
 
 (/) "The presumption is that a statute published by au- 
 thority of the government was correctly passed in respect to 
 form. 
 
 {g) " To prove the charter or general law of incorporation 
 of another state, a certified copy of such charter or law, cer- 
 tified by the secretary of state, is competent. So the exist- 
 ence of a foreign corporation may be proved by an exemplified 
 copy, certified in the manner prescribed by the law of the 
 forum, or the statute or charter may be read from the offi- 
 cially promulgated publication of the laws or edicts of the 
 foreign state contaming the charter. 
 
 (A) " A corporation may be created by the laws of several 
 states and become a distinct corporation in each, domiciled 
 therein.' 
 
 {i) " Acceptance of a charter may be shown by the minutes 
 of the corporation or by notice of acceptance, and any decisive 
 corporate act is competent evidence of acceptance.^ No proof 
 of acceptance of a charter is necessary in the case of a munici- 
 pal corporation.' 
 
 (_/) " Where a corporation is organized under a general 
 statute, the existence of the corporation may be proved by 
 producing the certificate of organization with proof of its 
 filing.* Where it is necessary to show an official certificate 
 that it is so authorized to do business from supervising state 
 officers, such certificate must be produced.' Thus, in an ac- 
 tion for tolls, the official certificate is the only evidence com- 
 petent." * 
 
 {k) " Except in actions by the state, or upOn subscription 
 contract, the fact that the corporation did not comply with 
 the express conditions of the charter or general law does not 
 affect the case, if there is color of organization and proof of 
 user.' 
 
 1 Gurnault v. Louisville & N. E. * East St, Louis Connecting R. Co. 
 
 Co., 41 La. Ann. 571. v. Wabash, St. L. & P. R. Co., 34 111. 
 
 ^Astor V. New York Arcade R. App. 279. 
 
 Co., 113 N. Y. 93; 33 N. Y. State « Jones v. Dana, 34 Barb. 403; 
 
 Rep. 1 : State v. Dawson, 33 Ind. 373. Bank of Toledo v. International 
 
 3 Berlin v. Gorham, 34 N. H. 366. Bank, 31 N. Y. 543. 
 
 * Shiffer v. Adams, 18 Colo. 573 ; ' Leonardsville Bank v. Williard, 
 
 Chamberlain v. Huguenot Manuf. 35 N. Y. 574 ; Williams v. Cheney, 3 
 
 Co., 118 Mass. 533. Gray, 220. 
 
378 KtJLES OF EVIDENCE. 
 
 {l) " As a general rule, in actions by or against corpora- 
 tions the other party suflBciently supports this allegation of 
 incorporation by showing the charter, or general law and 
 certificate filed, together with the actual use of the powers and 
 privileges of an incorporated company under the name desig- 
 nated in the charter or certificate.' Thus, suing by a name 
 of incorporation, to have and use a common seal, is proof of 
 user." ^ 
 
 § 37. Estoppel by and against. — Mr. Abbott, in his Trial 
 Evidence,' says,: 
 
 (a) " A parol admission that the body was incorporated is 
 competent evidence against the party who made it, but is 
 not conclusive in the absence of circumstances raising an 
 equitable estoppel against him.* And estoppel does not con- 
 clude a party as to the existence of legislative sanction. 
 But where there is a charter under which a company can be- 
 come a corporation, if the company does de facto organize 
 and hold itself out as a corporation, contracting obligations 
 as such, it cannot, when sued upon such obligations by per- 
 sons who have dealt with it as such in good faith, avoid 
 a corporate liability thereon by setting up that it has not 
 taken all the steps prescribed as conditions precedent to 
 its legal existence.* And where it has dealt in excess of its 
 powers, and retains the fruits of its dealings, it cannot, nor 
 can any one in its place, refuse to pay the consideration to 
 one who acted in good faith.' 
 
 (5) " "Where a society or association holds itself out as a 
 corporation, and acts as such in making a contract, it is liable 
 as a corporation, whether it has a legal corporate existence 
 or not.' 
 
 (o) " One who has contracted with a de facto corporation, 
 
 iBenesch v. John Hancock Mut Nostrand, 106 Mass. 559; Welland 
 
 L. Ins. Co., 33 N. Y. State Rep. 73 ; Canal Co. v. Hathaway, 8 Wend. 
 
 Narragansett Bank v. Atlantic Silk 480. 
 
 Co., 3 Mete. 383. "> Doyle v. San Diego Land & T. Co., 
 
 2 Buffalo, etc. R. Co. v. Cory, 26 46 Fed. Rep. 709 ; Slocum v. "Warren, 
 N. Y. 76 ; Commonro v. Bakeman, 10 R. I. 184. 
 
 105 Mass. 56 ; United States Bank v. « Parish v. Wheeler, 23 N. Y. 494. 
 
 Stearns, 15 Wend. 814. ' Scheufler v. Grand Lodge A. O. 
 
 3 Pages 18-53. U. W., 45 Minn. 256. 
 <Hungerford Nat. Bank v. Van 
 
BrEDEN OF PEOOr. 0(9 
 
 either directly or through an agent designated as such in an 
 obligation naming the corporation, and who retains the fruits 
 of his dealings with it, cannot set up the defense of uli/ra 
 vires, nor contest his liability in respect to such dealings, on 
 the ground of any defect of its organization." • 
 
 § 38. Powers of corporations. — Mr. Abbott, in his Trial 
 Evidence,''' says : " The acceptance of new or additional power, 
 subsequent to the charter, may be inferred from slight evi- 
 dence of acceptance.' All persons dealing with a corporation 
 must take notice of the powers conferred upon it by its char- 
 ter, and that its agents cannot exercise any authority in ex- 
 cess of such powers.* To charge a company upon the act of 
 an officer or agent, it must be shown either that it was ex- 
 pressly authorized, or that it was performed with the knowl- 
 edge and implied assent of the corporation or its authorized 
 officers, or was subsequently ratified by them.' Illegality is 
 not presumed of the action of a corporation. And any formal 
 contract of a corporation, not expressly forbidden or illegal, 
 is valid against the corporation, when there is ground either 
 for an equitable estoppel or for holding that the parties are 
 not in pari delicto in exceeding the limits of the law.* Acts 
 done by them which presuppose the existence of other facts 
 to make them legal are presumptive proof of such other 
 facts.'" 
 
 § 39. Contracts of. — All parol contracts made by the offi- 
 cers or agents of a corporation within the scope of the legiti- 
 mate objects of its institution are express promises by the cor- 
 poration.' To sustain an action for goods sold, or the like, it 
 
 ' Steam Nav. Co, v. Weed, 17 Barb. ' First Nat. Bank v. Ocean Nat. 
 
 578; Vater v. Lewis, 36 Ind. 288; Bank, 60 N. Y. 390. 
 
 Palmer v. Lawrence, 3 Sandf. Ch. * Dewey v. Toledo, A. A. & N. M. R. 
 
 161. Co., 91 Mich. 351 ; Bissell v. Michigan 
 
 2 Pages 18-53. S. & N. L R. Co., 22 N. Y. 258; Mead 
 
 3 Railway Co. v. AUerton, 18 Wall. v. Keeler, 24 Barb. 20; Cunningham 
 
 233, V. Massena Springs & F. C. R. Co., 63 
 
 *Fitzhugh V. Franco-Texan Land Hun, 439, 44 N. Y. State Rep. 723; 
 
 Co., 81 Tex. 306 ; Macon & B. R. Co. Schurr v. New York & B. S. J. Co., 
 
 V. Stamps, 85 Ga 1, 43 Am. & Eng. .45 id. 645 (.1892). 
 
 Corp. Cas. 318; Bohm v. Loewer's ' Nelson v. Eaton, 26 Barb. 410. 
 
 Gambi'inus Brewery Co., 16 Daly, 80; SHand v. Clearfield Consol. Coal 
 
 Loverin V. McL'aughlin, 161 111. 417.J Co., 143 Pa. St 408; Cicotte v. St. 
 
 Anne's Church, 60 Mich. 553. 
 
380 EDLES OF EVIDEIfOE. 
 
 is not necessary to show a formal vote of the directors, author- 
 izing the employment or purchase. It is enough to show that 
 the officer or agent who made the contract did so within the 
 scope of his duty, or with the knowledge of the directors, 
 and they received its benefit.^ Where the contract is in writ- 
 ing, the authority of the agent to sign it must be shown.- 
 The minutes of the corporation signed by the clerk are suffi- 
 cient evidence of authority, etc. Authority from a board of 
 directors is presumptively enough.' Where an instrument is 
 executed under the seal of a corporation, it may bo put in 
 evidence without further proof, if it has been acknowledged 
 as required for a deed of lands to be recorded. And a con- 
 tract executed in the name of a corporation by its president 
 and secretary, sealed with its corporate seal affixed by the 
 proper officers, is presumptively valid and binding upon the 
 corporation.'' In other cases the seal must be proved to be 
 genuine.' A corporation seal, undisputed, is prima facie evi- 
 dence that the act is that of the corporation.® 
 
 § 40. Torts of. — The evidence to charge a corporation with 
 a tort of its agent or officer depends on the general principles 
 of agency.' It must be shown that he by whom it was done 
 was at the time engaged in the business of his office or agency, 
 and acting within its scope.' It is no defense for the corpo- 
 ration to show that the act was the wilful and malicious act 
 of the agent or servant, if the act was such that had it been 
 done without malice the corporation would have been bound 
 by it.' False representations by officers or agents of a corpo- 
 ration, if brought home to the corporation as its acts, may be 
 
 1 Hamilton Coal Co. v. Bernhard, v. Gridley, 25 Wend. 469; Chamber- 
 61 Hun, 624 ; 40 N. Y. State Rep. 875 ; lain v. Bradley, 101 Mass. 188. 
 Dunn V. Rector of St Andrews, 14 6 St John's Church v. Steinmetz, 
 Johns. 118; Hooker v. Eagle Bank, 18 Pa. St 273. 
 
 30 N. y. 86; Fister v. La Rue, 15 'Springfield Engine & T. Co. v. 
 
 Barb. 323. Green, 25 111. App. 106 ; New York & 
 
 2 Argus Co. V. Mayor, etc., 55 N. Y. N. H. R. Co. v. Schuyler, 34 N. Y. 30. 
 495. SMessiok v. Midland R. Co., 138 
 
 3 Smith V. Smith, 117 Mass. 72. Ind. 81; Hunter v. Hudson River 
 * Jourdan v. Long Island R Co., Iron Co., 20 Barb. 507. 
 
 115 N. Y. 380 ; 26 N. Y. State Rep. » Brewster v. Hatch, 122 N. Y. 349 ; 
 
 138. , Weed v. Panama R..Co., 17 N. Y. 
 
 6 Kelly V. Calhoun, 17 Alb. L. J. 55 ; 362. 
 Hoyt V. Thompson, 5 N. Y. 335 ; Finch 
 
BTIEDEN OF PEOOF. 381 
 
 proved under an allegation of fraud committed by the corpo- 
 ration, if the acts be such as to bind the company.^ Where 
 the title to office or agency is involved only as incidental to 
 the right or liability of the corporation growing out of the 
 acts of the officer or agent, it may be proved by showing that 
 the person acted as such and was generally reputed to be 
 such, and that the corporation held him out as its officer, or 
 permitted him to assume the office, or had ratified his acts as 
 such." I 
 
 Mr. Abbott, in his Trial Evidence,' states the rule as fol- 
 lows: "An agency is defined, not by the authority which the 
 agent or officer receives from his principal, but by that which 
 the latter allows the former habitually to assume and exer- 
 cise.'' If an official report, containing material misrepresenta- 
 tions of fact as to its affairs, was presented to a public and 
 general meeting of the corporators, and was sanctioned by 
 the meeting and subsequently circulated by the directors for 
 the benefit of the company, it will bind them.' The admis- 
 sions and declarations of officers and agents of a corporation 
 depend on the same rules applicable to agents of individuals.' 
 Kotice to a corporation may be proved by showing notice 
 either (1) to the board of directors or a previous board ; (2) to 
 its officer or agent who was at the time acting for the corpo- 
 ration in the matter in question, and within the range of his 
 authority; or (3) to one whose duty it was to receive and 
 communicate such information."' 
 
 §41. Books and papers of. — Mr. Abbott, in his Trial Evi- 
 dence,^ states the rule to be, that " the books and papers of a 
 corporation are evidence for and against strangers to it in 
 
 iHill V. C. F. Jewett Pub. Co., 154 6 American Wire-Nail Co. v. Bay- 
 Mass. 172; King V. Fitch, a Abb. Ct less, 13 Ky. L. Rep. 176; Bean v. 
 App. Deo. 508. American Loan & T. Co., 133 N. Y. 
 
 2 Fitzgerald & M. Constr. Co. v. Fitz- 633, 34 N. Y. State Rep. 630. 
 
 gerald, 137 U. S. 98; Dexter v. Long, ^Gott v. Dinsmore, 111 Mass. 51 ; 
 
 2 Wash. 435, 36 Am. St. Rep. 807; McGinness v. Adriatic Mills, 116 id. 
 
 Partridge v. Badger, 35 Barb. 173; 117; Anderson v. Rome, Watertown 
 
 Pusey V. N. J. R Co., 14 Abb. Pr. & O. E. Co., 54 N. Y. 334; First Nat. 
 
 (N. S.) 441. Bank v. Ocean Nat. Bank, 60 id. 378. 
 
 ' Pages 18-53. 7 North River Bank v. Aymar, 3 
 
 * Bridenbecker v. Lowell, 33 Barb. Hill, 363. 
 
 9-18; Olcutt V. Tioga R. Co., 37 N. Y. 8 Pages 18-53. 
 546. 
 
382 EULES OF EVIDENCE. 
 
 some cases. Thus, where the record itself constitutes the act, 
 the fact to be proved, when directly in issue, is the record ; 
 for example, the act of organizing may be proved by the 
 books, either in favor of ^he corporation or creditors and 
 against members and strangers. And in general, a resolution 
 or other deliberate act of a corporation may be proved in its 
 own favor, or in favor of a stranger, against any one who 
 takes issue upon it.* The authenticity of the books may be 
 shown by any witness who can state of his own knowledge 
 that they are the books of the corporation ; that they have 
 been regularly kept by the proper officer ; that they come from 
 the proper custody ; and that he knows of his own knowledge 
 that the entries offered are correct records of the transactions 
 they profess to record." ^ 
 
 XI. EXEOUTOES AND ADMINISTEATOES. 
 
 § 42. Title. — Executors and administrators are trustees of 
 the property in their hands, and derive their powers from 
 letters granted by the probate court of the state in which they 
 act.' The plaintiff must come prepared to prove the appoint- 
 ment of the executor or administrator, if a party. The best 
 proof is the original letters, testamentary or of administra- 
 tion,* or a dul}' certified copy. The letters qualify the holder 
 to sue and be sued ; ' and the giving of the bond and taking of 
 the oath is presumed.' The recital, in the letters, of the juris- 
 dictional facts is prima facie evidence that they existed.' 
 
 § 43. Acts and declarations of representatives. — Some ad- 
 missions and declarations of an executor or administrator are 
 competent evidence against the estate if made while he was 
 clothed with official authority in an action by him.* But ad- 
 missions of an executor or administrator as to past trans- 
 actions of his testator or intestate, and not within his personal 
 
 1 1 Greenl. Ev., § 548. «Noonan v. Bradley, 8 Wall. 394 f 
 
 2 1 Whart. Ev., § 639 ; 1 Greenl. Remick v. ButterBeld, 31 N. H. 70, 
 
 Ev., § 483. 80 ; Belden v. Meeker, 47 N. Y. 307. 
 
 3 Rich V. Sowle's, 64 Vt. 408 ; Re "> Maloney v. Woodin, 11 Hun, 203. 
 
 Meyers, 131 N. Y. 409 ; 43 N. Y. State « North v. People, 139 111. 81. 
 
 Rep. 265 ; Doolittle v. Lewis, 7 Johns. ' Belden v. Meeker, 47 N. Y. 307 ; 
 
 Ch. 45 ; Allen v. Bishop, 25 Wend. Forley v. McConnell, 52 id. 630. 
 
 414 ; Babcock v. Booth, 2 Hill, 181 ; 8 Meinert v. Snow, 2 Idaho 851 ; 1 
 
 Dox V. Backenstose, 12 Wend. 542. Greenl. Ev., § 315. 
 
BrEDEN OF PEOOF.. 38S 
 
 knowledge, are not admissible as part of the res gestm} Where 
 there are several co-representatives, the admissions and dec- 
 larations of one are not competent against the others. In 
 short, the admissions and declarations of executors and ad- 
 ministrators are admissible against the estate only vrhen made 
 touching matters of business then pending.^ "Where an exec- 
 utor or administrator is a party, the admissions and declara- 
 tions as such, made by the decedent in his life-time, are com- 
 petent against the representatives.' 
 
 Xn. TEEASON, PEEJITET, ETO. 
 
 §43. Plurality of witnesses.— The quantity of legitimate 
 evidence required^for judicial decision is governed by a rule of 
 a negative kind which is peculiar to the common law, namely, 
 that in general no particular number of instruments is neces- 
 sary for proof or disproof; the testimony of a single witness, 
 relevant for proof of the issue in the judgment of the judge, 
 and credible in that of the jury, is a sufficient basis for decis- 
 ion, both in civil and criminal cases.* As a corollary from this, 
 when there is conflicting evidence the jury must determine 
 the degree of credit to be given to each of the witnesses; for 
 the testimony of one witness may, in many cases, be more 
 trustworthy than the opposing testimony of many.^ Add to 
 this that the anomaly of acting on the testimony of one person 
 is more apparent than real, for the decision does not proceed 
 solely on the story told by the witness, but on the moral con- 
 viction of its truth, based on its intrinsic probability and his 
 manner of giving his evidence. And there are few cases in 
 which the decision rests, even on those circumstances alone; 
 they are usually corroborated by the presumption arising from 
 the absence of counter-proof or explanation, and in criminal 
 cases by the demeanor of the accused while on his trial.* 
 
 Of the exceptions to the general rule respecting the suffi- 
 
 1 Davis V. Gallagher, 134 N. Y. 487, Peake's Ev. 9 (5th ed.); Co. Litt. 66; 
 
 36 N. y. State Rep. 461. Fost. C. L. 233 ; 2 Hawk. P. C, ch. 35, 
 
 2Bloodgood V. Bruen, 8 N. Y. 363. sec. 131, and ch. 46, sec. 2. 
 
 3 Barker v. White, 58 N. Y. 204 6 stark. Ev. 832 {4th ed.). 
 
 <3 Black. Com. 870; Stark. Ev. « Leak v. State, 61 Ark. 59». 
 827 (4th ed.); Trials per Pais, 368; 
 
384. EULES OF EVIDENCE. 
 
 ciency of one witness, some exist by the common law, but by 
 far the greater number have been introduced by statute. 
 
 Perjury: The most remarkable and important of these is in 
 the case of prosecutions for perjury.^ If upon an indictment 
 for perjury the sole evidence against the accused showing the 
 wilful falsity of his testimony is the oath of a single witness 
 contradicting the oath alleged to be perjured, — *. e., if no facts 
 be proved which corroborate the witness, — it is the duty of 
 the jury to acquit.^ We must recollect that in early times the 
 jury themselves were looked on as witnesses, who might con- 
 vict of perjury, or indeed of any offense, on their own knowl- 
 edge without other testimony. E. v, Muscot' is the leading 
 case on this subject. That was an indictment for perjury, and 
 Parke, C. J., in summing up, is reported to hSlve said : * " There 
 is this difference between a prosecution for perjury and a bare 
 contest about property: that in the latter case the matter 
 stands indifferent, and therefore a credible and probable wit- 
 ness shall turn the scale in favor of either party ; but in the 
 former, presumption is ever to be made in favor of innocence, 
 and the oath of the party will have a regard paid to it until 
 disproved. Therefore, to convict a man of perjury, a credible 
 witness is not enough ; but it must be a strong and clear evi- 
 dence, and more numerous than the evidence given for the de- 
 fendant, for else there is only oath against oatli." ' 
 
 The rule requiring two witnesses in indictments for perjury 
 applies only to the proof of the falsity of the matter sworn to 
 by the defendant; all preliminary or collateral matters — such 
 as the jurisdiction and sitting of the court, the fact of the de- 
 fendant having taken the oath, together with the evidence he 
 gave, etc. — may be proved in the usual way.* Our law gives 
 
 14 Black. Com. 358; 3 E7. Poth. 8 Cush. 199; Crusen v. State, 10 Ohio 
 
 380; 2 Stavk. Ev. 859 (3d ed.); E. v. St. 358; Hendricks v. State, 26 Ind. 
 
 Musoot, 10 Mod. 193 ; Fanshaw's Case, 493 ; State v. Raymond, 30 Iowa, 583 ; 
 
 Skin. 327; R. v. Broughton, 3 Str. State v. Heed, 57 Mo. 252; State v. 
 
 1229, 1330 ; Walker v. State, 107 Ala. 5. Wood, 17 Iowa, 18 ; Dodge v. State, 
 
 2 1 Greenl. Ev., § 357 ; United States 24 N. J. L. 455. 
 
 V. Wood, 14 Pet. 430, 441 ; Woodbeck 3 10 Mod. 193. 
 
 V. Keller, 6 Cowan, 118 ; State v. Mol- < Id. 194. 
 
 lier, 1 Dev. 363 ; State v. Hay ward, 1 6 State v. Matlock, 48 La. Ann. 663. 
 
 Nott & McC. 546 ; Laughran v. Kelly, e Tayl. Ev., g 880 ; 2 Russ. Gr. 654. 
 
BUKDEN OF PROOF. 385 
 
 witnesses the privilege of refusing to answer questions which 
 tend to criminate or to expose them to penalty or forfeiture ; 
 it allows no action to be brought against a witness for words 
 written or spoken in the course of his evidence ; ' and it throws 
 every fence around a person accused of perjurj'^. Besides, 
 great precision is required in the indictment; the strictest 
 proof is exacted of what the accused swore; and lastly, the 
 testimony of at least two witnesses must be forthcoming to 
 prove its falsity.^ 
 
 It is not easy to define the precise amount of evidence re- 
 quired from each of the witnesses or proofs in such cases. 
 Some modern authorities express themselves as though it 
 would be sufficient if one witness were to negative directly 
 the matter sworn to by the defendant, and some material cir- 
 cumstances were proved by another witness in confirmation 
 or corroboration of his testimony.' So that, according to this 
 view, it would only be necessary to corroborate the testimony 
 of the direct witness in the same manner as judges are in the 
 habit of requiring the testimony of an accomplice to be cor- 
 roborated, or as the testimony of a woman must be corrobo- 
 rated who seeks to fix a man with the maintenance of a bastard 
 child, or for damages for a breach of promise of marriage.* 
 If the false swearing be that two persons were together at a 
 certain time, and the assignment of perjury be that they were 
 not together at that time, evidence by one witness that at the 
 time named one was at Chicago, and by another witness that 
 the other was at New York, would be sufficient proof of the 
 assignment of perjury. In R. v. Mayhew,* where the defend- 
 ant, an attorney, was indicted for perjury in an affidavit made 
 by him in opposition to a motion to refer his bill of costs for 
 taxation, one witness was called to prove the perjury, and in 
 lieu of a second it was proposed to put in the defendant's bill 
 of costs which he had delivered. On this being objected to, 
 
 1 Dawkins v. Lord Rokeby, L. R 8 '1 Greenl. Ev., § 257 (7th ed.) ; Tayl. 
 Q. B. 355 ; Henderson v. Broombead, Ev., § 876 (4th ed.) ; R. v. Gardiner, 8 
 4 H. & N. 569; Revis v. Smith, 18 C. C. & P. 739; R v. Yates, C. & M. 159. 
 B. 126 ; ColliDs v. Cave, 4 H. & N. 235 ; * Van Houten v. Morse, 26 L, R A. 
 affirmed on error, 6 id. 131. 430, 162 Mass. 414. 
 
 2 United States v. Wood, 70 Fed. 5 2 C. & P. 315. 
 Rep. 485. 
 
 25 
 
3&G BULKS OF EVIDENCE. 
 
 Lord Denman, 0. J., said: "I have quite made up my miud 
 that the bill delivered by the defendant is sufficient evidence; 
 or that even a letter written by the defendant, contradicting 
 his statement on oath, would be sufficient to make it unneces- 
 sary to have a second witness." 
 
 " Where an instrument requiring attestation is subscribed by 
 several witnesses it is only necessary to call one of them, ex- 
 cepting in the case of wills relating to real estate ; with respect 
 to which it has for many years been the practice of the courts 
 of equity, and is now the practice of all the courts, to require 
 that all the witnesses who are within the state and capable of 
 being called should be examined. It used to be said that all 
 the subscribing witnesses must be called in order to satisfy 
 the conscience of the chancellor." ' 
 
 Trcaf^on: Article III, section 3, of the constitution of the 
 United States, provides, " No person shall be convicted of trea- 
 son unless on the testimony of two witnesses to the same overt 
 act or on confession in open court ; " ^ and by the rules of the 
 common law no person can be tried for treason or for mis- 
 prision of treason but by and upon the oaths and testimony of 
 two laTvful witnesses, either both of them to the same overt 
 act, or one of them to one and the other of them to another 
 overt act of the same treason, unless the party tried confess 
 the same or stand mute or refuse to plead. 
 
 The rule requiring two witnesses in treason only applies to 
 the proof of the overt acts of treason charged in the indict- 
 ment ; any collateral matters may be proved as ai common 
 law,' such as that the accused is a subject of the government.* 
 
 Breach of promise of marriage: By the statutes which made 
 the parties to actions for breach of promise of marriage com- 
 petent to give evidence therein, no plaintiff in such action may 
 recover a verdict unless his or her testimony shall be corrobo- 
 rated by some other material evidence. 
 
 iTayL Ev., § 1854 (7th ed.). 'Tayl. Ev., § 873 (4th ed.); Fost 
 
 2 1 Greenl. Ev., §§ 235, 255 ; 3 GreenL C. L. 240-342 ; 1 East, P. 0. 130. 
 
 Ev., §§ 246, 248 ; 2 Whart. Grim. Law, * Fost. C. Ij. 240 ; E. v. Vanghan, 13 
 
 § 1808 ; 2 Story, Const, § 1796 ; Fries' How. St. Tr. 535 ; Sanscom v. State, 
 
 Case, Wharton's St. Tr. 482, 585; 03 Wis. 373. 
 
 United States v. Han way, 2 Wall. Jr. 
 
 139; Fitch v. Com., 92 Va. 824. 
 
BUEDEN OF PROOF. 387 
 
 XIII. 
 
 In an action against heirs or next of kin in 'New York, on a 
 debt of the ancestor, the plaintiff must make a case within 
 the statute which creates the right of action.' He must show 
 that letters have been duly granted;^ that three years have 
 elapsed since the granting of the letters;' that defendant in- 
 herited real property by descent, or acquired real or personal 
 property under the decedent's will or the statute of distribu- 
 tion, and that the decedent left no personal property within 
 the state sufficient to pay the debt, or that the debt could not 
 be collected by due proceedings from the personal represent- 
 atives of the decedent, nor from the next ' of kin or lega- 
 tees.* The return of an execution unsatisfied against the 
 executor or administrator is not sufficient proof of want of 
 assets, nor does a judgment against the executor or adminis- 
 trator prove the existence of the claim or demand;' nor does 
 lapse of time since administration granted create any pre- 
 sumption as to the statutory conditions.* The plaintiff should 
 allege and prove that an accounting by the executor or ad- 
 ministrator has been had. A judgment or verdict for or 
 against an executor or administrator is never conclusive 
 against the heirs or devisees.' It is not even competent evi- 
 dence of the debt or other facts established thereby.' A 
 judgment or verdict for or against the heirs does not bind the 
 devisees.' 
 
 Xiv. ADVANCEMENTS. 
 
 Parol evidence is admissible upon the distribution of the. 
 estate of a father to explain the surrounding circumstances 
 of the conveyance by him to some of his children in his life- 
 time, and show that it was intended as an advancement.'" 
 Where the division of the entire estate is subjected to the 
 
 'Mackay v. Riley, 135 III. 586; Kent v. Kent, 63 N. Y. 560; Eock- 
 
 Messereaux v. Eyerss, 3 N. Y. 361. well v. Geary, 4 Hun, 611. 
 2Selover v. Coe, 63 N. Y. 443. 7 Vernon v. Valk, 8 Hill Ch. 357; 
 
 ' Roe V. Swezey, 10 Barb. 351. Dale v. Eosevelt, 1 Paige, 85. 
 * Stuart V. Kissam, 11 Barb. 383. 8 Kent v. Kent, 63 N. Y. 560. 
 
 5 Stuart V. Kissam, 11 Barb. 383; » Cowart v. Williams, 34 Ga. 167. 
 Sharp V. Freeman, 45 N. Y. 803. '» McCIanahan v. McClanahan, 86 
 
 6 Armstrong v. Wing, 10 Hun, 530 ; W. Va. 84. 
 
388 E0LES OF EVIDENCE. 
 
 statute of descent and distribution, a presumption arises that 
 a substantial provision, beyond expenditures, for maintenance 
 or education, and not characterized as a mere gift nor as 
 creating a debt on the part of the child, was intended as an 
 earnest of the inheritance, and to be deducted from the re- 
 cipient's share of the estate on the parent's death.' The ques- 
 tion in all cases is one of intent.^ A deed from a parent to a 
 child, expressed to be in consideration of " love and affection," 
 or the like, raises a presumption of advancement.' Where a 
 dncedent purchased property and had it conveyed to a child, 
 who claims a share in his estate, the law presumes an advance- 
 ment.^ The fact and the character of an advancement, even 
 of real property, may be established by parol.' An account 
 kept by the donor, in which he charges the sura in a manner 
 indicating his intent that it is to take effect as an advance- 
 ment, msLj be sufficient without evidence that the donee knew 
 of the charge.* The declarations of the donor made at the 
 time of the transaction are admissible as part of the res gestce; ' 
 and the declarations of the donor, made before the transac- 
 tion, are competent on the question of his intent.' But for 
 the purpose of showing either that the transaction was an 
 advancement, or that it was a debt, his declarations, made 
 after he had parted with all power of revocation, are not com- 
 petent against those who claim it as a gift ; and for the pur- 
 pose of showing that it was a debt, they are not competent 
 against those who claim it either as a gift or as an advance- 
 ment; for in either case they are declarations in his own 
 favor.' 
 
 iMcClanahan v. McClanahan, 36 'Parker v. McCluer, 3 Abb. dt 
 
 W. Va. 84 ; Parks v. Parks, 19 Md. App. Dec. 454 ; Brown v. Brown, 16 
 
 323 ; Law v. Smith, 3 R I. 244. Vt 197. 
 
 2 Reynolds v. Reynolds, 13 Ky. L. * Lawrence v. Lindsay, 68 N. T. 
 Hop. 793 ; Alleman v. Manning, 44 108 ; Bing. on Desc. 382. 
 
 Mo. App. 4; Weaver's Appeal, 63 'Wilson v. Beauchamp, 50 Miss. 
 
 Pa. St. 309; Bing. on Desc. 347; 24; Fellows v. Little, 46 N. H. 37; 
 
 Oiler V. Bonebrake, 65 Pa. St. 338. Woolery v. Woolery, 29 Ind. 254. 
 
 3 Barbee v. Barbee, 109 N. C. 299 ; 8 Powell v. Olds, 9 Ala. 861. 
 Adams v. Adams, 23 Vt 50. 9 McNeil v. Hammond, 87 Ga. 618; 
 
 < 2 Story's Eq., § 1204 ; Murphy v. Peck v. Peck, 27 L. T. (N. S.) 670 ; San- 
 Nathans, 46 Pa. St. 508 ; Pj oSius v. ford v. Sanford, 5 Lans. 486. 
 Mclntyre, 5 Barb. 424. 
 
BOEDEN OF PROOF. 389 
 
 XV. WILLS. 
 
 § 45. Extrinsic evidence affecting. — (1) Wills are to be 
 so construed by transposing, rejecting or supplying words 
 that the intention of the testator may be expressed and car- 
 ried out and unjust results avoided.' But parol evidence 
 cannot be admitted to supply or contradict, enlarge or vary 
 the words of a will, nor to explain the intention of the testa- 
 tor, except in two cases: (1) Where there is a latent ambigu- 
 ity dehors the will as to the person or subject meant to be 
 described, and (2) to rebut a resulting trust.^ But what is 
 said at the time of the execution and attestation is admissible 
 as part of the res gestcB, though not to contradict the will.' 
 And it seems that exti'insic evidence is admitted to aid in 
 reading, testing, applying and executing the testamentary 
 declarations of intention.* It is never allowable to establish 
 the testamentary intention the testator has expressed, but 
 simply to throw light upon the words of the will to show 
 what he meant to do.' 
 
 (2) The intention or understanding of the parties must be 
 determined from the language of the instrument viewed in 
 the light of the existing circumstances,^ and declarations of 
 the testator as to his wishes and intention are inadmissible. 
 Circumstances existing at the time of the execution of a will 
 may be given in evidence to determine the intention of the 
 testator, but not those occurring subsequently.' 
 
 (3) The rules for the admission and exclusion of parol evi" 
 dence in regard to wills are essentially the same which prevail 
 in regard to contracts generally.* Whatever is necessary to 
 possess the court with an understanding of the language or 
 characters in which the will is written may be supplied by 
 extrinsic evidence.' The principle is the same, whether the 
 
 •Hotaling v. Marah, 133 N. Y. 29, SDenfeld v. Smith, 156 Mass. 305. 
 
 43 N. Y. State Rep. 544. 7 Morris v. Sickley, 133 N. Y. 456, 
 
 2 Rivers v. Rivers, 36 S. C. 303. 45 N. Y. State Rep. 735. 
 
 ' Sire V. Eumbold, 39 N. Y. State « Lane v. Union Nat. Bank, 3 Ind. 
 
 Rep. 85 ; Johnson v. Patterson, 86 Ga. App. 299 ; 1 Greenl. Ev., § 287 ; Redf. 
 
 735. on Wills, 496. 
 
 * Foster v. Dickerson, 64 Vt. 233; sPetrie v. Phoenix Ins. Co., 183 
 
 Mann v. Mann, 1 Johns. Ch. 331. N. Y. 137, 43 N. Y. State Rep. 478. 
 
 sPaton V. Ormerod (1893), Probate 
 Division, 247. 
 
390 BULES OF EVIDENCK 
 
 difficulty in reading the will arises from the fact that it was 
 written in a foreign language or a peculiar dialect, or from 
 the fact that the testator habitually used words of the com- 
 mon language in a peculiar way, or used characters and hiero- 
 glyphics instead of the common notation of the language.' 
 Evidence is allowed to show what his habitual speech and 
 notation were, leaving the court, in the light of the fact, to 
 read the will and ascertain what was his intention. 
 
 (4) If the will contains language which has a provincial or 
 local meaning, persons acquainted with the meaning of the 
 words may be received as witnesses to translate or define 
 tbem.^ If he was accustomed to designate a person by a 
 short name, such as a surname alone, or the baptismal name 
 alone, or a pet name, or habitually to misname the person 
 through confusing several names, or to use abbreviations or a 
 cipher, they may be explained by evidence of his usage.' But 
 parol evidence is not admissible to show who were intended 
 by a testator to be beneficiaries in a will, the will being silent 
 on that point.* And extrinsic evidence of what testator in- 
 tended by using initials or ciphers in a bequest, as distinguished 
 from evidence of what it was his common habit of speech or 
 writing to use them for, is not admissible.' 
 
 (5) Unattested alterations in a will are not, as in case of 
 other instruments, presumed to have been made before execu- 
 tion.* The time when the alterations were made mav be 
 shown by the declarations of the testator. This may also be 
 done by the testimony of an eye-witness. 
 
 (6) An error of date may be corrected by means of extrin- 
 sic evidence. 
 
 (7) It is competent to show that a particular part of it wa6 
 not the testator's will; as, for instance, that a clause was in- 
 terlined by another hand without authority, or that a partic- 
 ular part was inserted through undue influence, or that a 
 sheet was not in the will at the time of its execution.' 
 
 1 Berry v. Kawalsky, 95 Cal. 134, ^ HeideDheimer v. Bauman, 84 Tex. 
 28 Am. St. Rep. 548. 174, 31 Am. St. Rep. 29. 
 
 2 Bassett v. Martin, 83 Tex. 110. " Clayton v. Nugent, 13 Mees. & W. 
 
 3 Brown v. Stark, 47 Mo. App. 370 ; 200-207. 
 
 Redf. on Wills. 630; Ryerss v. 6 1 Redf. on Wills, 314. 
 
 Wheeler, 22 Wend. 152; Veell v. 'Charles y. Huber, 78 Pa. St. 448; 
 
 Charmer, 23 Beav. 195. Florey v. Florey, 24 Ala. 341. 
 
BURDEN OF PEOOF. 391 
 
 (8) Whenever extrinsic evidence is admitted to negative 
 the genuineness of the testamentary act, it is also admissible 
 to affirm it, and for that purpose the testator's declarations 
 of intention may be received.^ Evidence is admissible of the 
 testator's situation at the time of making the will, the num- 
 ber of his family, the different kinds of property which he 
 had, etc.^ It is not essential that a legatee or devisee be 
 named; a reference by which he may be ascertained when 
 the time comes is enough, and then extrinsic evidence is com- 
 petent to identify him.' But it is different when the will is 
 entirely silent on that question,* and evidence to show that 
 the intention of the testator is different from that plainly ex- 
 pressed in his will is inadmissible.' So extrinsic evidence which 
 goes beyond the purpose of aiding in the interpretation is in- 
 admissible.* 
 
 (9) Prima facie the word "children" means legitimate 
 children.' Under a bequest to testator's "child;!en," "neph- 
 ews," etc., none but the testator's own legitimate children or 
 nephews can take. But extrinsic evidence is admissible to 
 show that there are none such, and that he was never married, 
 but left illegitimate offspring, and that he recognized them as 
 his children ; or that the only nephews and nieces in the familj'^ 
 were those of testator's wife.^ 
 
 (10) It is not necessary that a corporation be designated by 
 its legal corporate name. It may be designated by the name 
 by which it is usuallj^ or popularly called or known, or by a 
 name by which it was known and called by the testator, or by 
 any name or description by which it can be distinguished 
 from every other corporation.' The circumstances to identify 
 it as the body intended may be shown by parol." 
 
 J Re Kelemen's Will, 126 N. Y. 73, < Heidenlieiiner v. Bauman, 84 Tex. 
 
 36 N. Y. State Rep. 390. 174, 31 Am. St Rep. 29. 
 
 2 Shulters v. Johnson, 38 Barb. 80 ; 5 Bradhurst v. Field, 135 N. Y. 564. 
 Terpening v. Skinner, 30 id. 373; Doe 6 Landers v. Cooper, 115 N. Y. 279. 
 V. Provost, 4 Johns. 61. ' Cromer v. Pickney, 3 Barb. Ch. 
 
 3 Weed V. London & L. F. Ins. Co., 466. 
 
 116 N. Y. 106; Faulkner v. National e Clay v. Field, 138 U. S. 464. 
 Sailors' Home, 155 Mass. 458 ; Holmes » Smith v. Kimball, 62 N. H. 606. 
 V. Mead, 52 N. Y. 332 ; 1 Redf. on " Lefevre v. Lefevre, 59 N. Y. 434 
 Wills, 613; Webber v. Corbett, L. R 
 16 Eq. 515. 
 
392 K0LES OF EVIDENCE. 
 
 (11) When it is shown that there is no person in existence 
 who fully corresponds with the description in the will to in- 
 dicate the donee, extrinsic evidence is admissible to ascertain 
 to whom the designation points;* and proof may be given of 
 the circumstances and habits of the testator, and the state of 
 his family at the time he made the will, in order to ascertain 
 the bearing and application of the language which he has used, 
 and whether there exists any person to whom the whole de- 
 scription given in the will can be with sufficient certainty 
 applied.' Thus, extrinsic evidence is admissible for the pur- 
 pose of arriving at the real intent of the testator by identify- 
 ing the person or thing described, and to remove an ambiguity 
 in the description;' and for that purpose evidence is compe- 
 tent that the testator was accustomed to call a person by the 
 name used in his will, which is not the true name, or even by 
 a name which the scrivener mistook by similarity of sound for 
 that written in the will, and to which no other person answers.* 
 
 (12) Where a designation otherwise correct contains words 
 which are false or inapplicable to the claimant, the false or 
 inapplicable part may be rejected, if enough remains, in the 
 light of competent extrinsic evidence, to identify the donee. 
 The name may be rejected as false, leaving the description to 
 control.' 
 
 Mr. Abbott, in his Trial Evidence,* states the rule to be this : 
 ,(13) "Where there are two claimants of the same gift, if 
 one alone precisely answers the whole designation of the 
 will, extrinsic evidence that the other was intended is incom- 
 petent.' If both precisely answer the whole designation and 
 indications of the will, a latent ambiguity or ' equivocation ' is 
 presented and may be helped out by extrinsic evidence. So 
 if neither precisely answers the designation and indications 
 in the will. This happens not onh' where there is a legal 
 name which fits both, but where there is a description only, 
 
 ' Smith V. Kimball, 63 N. H. 606 ; *2 Phillips' Ev. 739. 
 
 General Assembly Presby. Church v. * Conally v. Pardon, 1 Paige, 391 ; 
 
 Guthrie (Va.), 6 L. R. A. 321. Wagner's Appeal, 43 Pa. St. 103; 
 
 2 Morris v. Siokley, 133 N. Y. 456 ; Price v. Paige, 4 Ves. 679. 
 
 Hornebeck v. American Bible So- * Pages 120-150. 
 
 ciety, 3 Sandf. Ch. 133 ; Howard v. ' Smith v. Smith, 1 Edw. Ch. 191 ; 
 
 American Peace Society, 49 Me. 397. Ayers v. Weed, 16 Conn. 291. 
 
 sSturgis v. Work, 133 Ind. 134. 
 
BUEDBN OF PEOOF. 393 
 
 or a name used in common parlance, or a name which fits one" 
 claimant only, coupled with a description which fits the other 
 only, or a designation which, without rejection of some terms, 
 is false in application.^ 
 
 (14) "To identify the person or society which the designa- 
 tion in the will intends, the extrinsic evidence includes such 
 facts as the testator's knowledge or ignorance of the donee in 
 question, the fact that he conversed about it before making 
 his will,^ and the fact that he expressed a strong interest in it 
 in conversation or in letters.' 
 
 (15) " Where the subject of the bequest is indicated in the 
 will by words which do not have a fixed legal meaning, and 
 especially words which refer to extrinsic circumstances — for 
 example, 'a devise of,' 'the home and garden I now live in,' 
 'all my back lands,' — the meaning is to be ascertained by 
 evidence explaining what were the extrinsic circumstances at 
 the time referred to in the will.* For that purpose evidence 
 is admissible of the declarations of the testator before and 
 after making the will showing his habit in the use of such 
 expression, and what property he was accustomed to designate 
 in this way.' 
 
 (16) " Where the identity of the thing applies equally in all 
 its parts to more than one subject, — as where a testator de- 
 vises his manor of T., and it appears that he has two such, 
 one of north T. and one of south T., — extrinsic evidence must 
 determine which passes; and for this purpose the testator's 
 declarations of intention may be proved." But where the 
 words of the will are not ambiguous and no latent ambiguity 
 or 'equivocation' is produced by extrinsic evidence, it is not 
 competent to adduce evidence of the declarations of the tes- 
 tator or his instructions to the draftsman, for the purpose of 
 showing that a different estate or interest from that indicated 
 was intended.' 
 
 1 1 Redf. on Wills, 637, n. ; Ayers Stanford v. Lyons, 18 Am. Kep. 
 
 V. Weed, 16 Conn. 300; Button v. 736. 
 
 Ataerican Tract Soc, S3 Vt. 350. * Fitzpatrick v. Fitzpatrick, 14 Am. 
 
 2 Howard v. American Peace Soc, Rep. 538 ; 1 Redf. on Wills, 650 and 
 
 49 Me. 298. 584. 
 
 ' Brewster v. McCall, 15 Conn. 394. ' Charter v. Otis, 41 Barb. 535 ; 
 
 *Bradish v, Yocum, 130 111. 386. Hill v. Felton, 15 Am. Rep. 643; 47 
 
 » Ryerss v. Wheeler, 23 Wend. 148 ; Ga. 455 ; Ordway v. Dow, 55 N. H. 11. 
 
394 KTJLES OF EVIDENCE. 
 
 (17) " "Where it appears that one to whom a legacy, ex- 
 pressed in terms appropriate to a pure gift, was a creditor of 
 the testator, the court will not presume that the bequest was 
 intended to satisfy the debt, if by reason of the amount or 
 the time of payment the bequest would not be as beneficial 
 as ordinary payment by the estate; and in such case extrinsic 
 evidence that the testator only intended to satisfy the debt is 
 not competent.' But where the bequest and the debt are 
 such that an equitable presumption arises that the bequest 
 was intended in satisfaction, then extrinsic evidence, even by 
 the declarations of the testator^ is admissible to rebut the 
 presumption. Where the same sum is given twice in the 
 same will to the same legatee, the law presumes that the lat- 
 ter sum is a mere repetition ; but extrinsic proof is competent 
 for the purpose of rebutting the presumption.^ 
 
 (18) "Where the language of the will is doubtful as to 
 whether or not legacies are charged on real property, ex- 
 trinsic evidence of the situation of testator and his property, 
 and the surrounding circumstances, is competent to aid in 
 determining the question."' 
 
 XTI. ADEMPTION AND LAPSING. 
 
 A legacy lapses when the devisee dies before the testator 
 and there is no other person authorized to take under the 
 will;* and where a parent bequeathes property to a child or 
 grandchild, and afterwards, in his life-time, sells it, or if a 
 father makes a provision for a child by his will, and after- 
 wards gives to such child, if a daughter, a portion in mar- 
 riage, or, if a son, a sum of money to establish him in busi- 
 ness, provided such portion or sum be equal to or greater 
 than the legacy, it will, in general, be deemed a satisfaction 
 or ademption of the legacy.* But this presumption may be 
 overcome by evidence that such was not the intention. This 
 is allowed, not to vary the terms of the will, but to establish, 
 on behalf of the claimant, the acts and interests of the tes- 
 
 1 Phillip V. MoCombs, 53 N. Y. 494 ; 8 Dey v. Dey, 19 N. J. Eq. 137. 
 
 Fort V. Gooding, 9 Barb. 871. * Shadden v. Hambree, 17 Oreg. 14. 
 
 •i De Witt V. Yates, 10 Johns. 156 ; » Hine v. Hine, 39 Barb. 507 ; Lang- 
 
 Whyte V. Why te, 7 Moak's Eng. Rep. don v. Astor, 16 N. Y. 9 ; Paine v. 
 
 872. Parsons, 14 Pick. 320. 
 
BUEDEN OF PEOOF. 395 
 
 tator. For this purpose the declarations of the testator are 
 competent, both when made at the time of the transaction 
 and when made before or after it.' The bequest of a certain 
 bond by a testator to his wife is a specific and not a pecun- 
 iary or demonstrative legacy; and its payment to the tes- 
 tator before his death operates as an ademption or revocation 
 of the legacy.^ 
 
 XVII. CITIZENSHIP AND ALIENAGE. 
 
 § 46. In general. — Proof of the admission of a territory 
 into the Union is sufficient proof that a citizen of what had 
 been the territory was a citizen of the United States and the 
 state;' and a record of the order of a competent court ad- 
 mitting an alien to become a citizen, a certified copy of such 
 order or proof of birth from a father who is a citizen of the 
 United States, or birth in this country since 1882, is sufficient 
 proof of citizenship.^ And where no record of naturalization 
 can be proved, evidence that a person having the requisite 
 qualifications to become a citizen did in fact vote and hold 
 oiflce is sufficient.* 80 alienage may be proved by proving 
 birth in a foreign country from a father not a citizen of this 
 country. As to domicile, a person may belong to several 
 places. The domicile of a person sui juris is proved by show- 
 ing a residence at a particular place accompanied with evi- 
 dence of an intention to remain there for a time not limited.* 
 A wife's domicile is proved by proving that of her husband 
 if sui juris.'' The domicile of a legitimate minor is proved by 
 proving the domicile of the father while he was living; after 
 his death, that of the mother;^ but it does not follow any 
 change in her domicile after remarriage." The domicile of an 
 illegitimate minor is proved by proving the domicile for the 
 time being of its mother.'" In case of soldiers, sailors, students 
 
 > Miner V. Atherton, 35 Pa. St 528 ; Fed. Rep. 878; Mitchell v. United 
 
 Langdon v. Astor, 16 N. Y. 9. States, 21 Wall. 350. 
 
 2 Humphrey v. Robinson, 52 Hun, 'Whart on Conf. of Laws, § 44 
 
 200 ; 23 N. Y. State ,Rep. 38. 8 De Jarnett v. Harper, 45 Mo. App. 
 
 8 Boyd V. Nebraska, 148 U. S. 135. 415. 
 
 * Young V. Peck, 21 Wend. 389 ; » Ludlam v. Ludlam, 26 N. Y. 356 ; 
 Lndlam v. Ludlam, 26 N. Y. 363. Kennedy v. Byall, 67 id. 386. 
 
 »Boyd V. Nebraska, 143 U. S. 135. i" Whart on Conf. of Laws, § 87. 
 
 * United States v. Chong Sam, 47 
 
396 EULES OF EVIDENCE. 
 
 and persons under restraint, the residence of his wife at the 
 places where he established her, or, if single, the place where 
 he most usually resorted for board in the intervals of his re- 
 turn, is prima facie evidence of his domicile.' In some cases 
 residence is equivalent to the place of domicile.^ But a man 
 may be a resident in one place and a commorant in another 
 at the same time.' Domicile once shown is presumed to con- 
 tinue until a new domicile is shown to be acquired. Merelj'" 
 abandoning the old abode, though without intent to return, 
 does not divest the domicile.* To constitute the new domicile 
 two things are necessary : (1) Residence in the new locality, 
 and (2) the intention to remain there, either permanently or 
 for an indefinite time.' The change cannot be made except 
 facto et animo: either without the other is insufHcient.^ 
 
 XVIII. DEATH — PEOOF OF. 
 
 Death may be proved by an official registry of the death, 
 kept pursuant to statute, or by a church or other registry of 
 burial. The presumption of law is that a person of whom 
 nothing is known but that he was living at a certain time, 
 continues to live, at least until he would have reached the age 
 of one hundred, after which he may be presumed to be dead.' 
 The legal presumption of life is sufficient, in the absence of all 
 other evidence, until the lapse of seven years.* The presump- 
 tion that death occurs at that time fixes the rights dependent 
 on death, until evidence to the contrary appears.' 
 
 1 Graveley v. Graveley, 25 a C. 1, * Hartford v. Champion, 58 Conn. 
 60 Am. Rep. 478 ; 1 Whart. on Conf. 268 ; Moflfett v. Hill, 131 111. 239 ; Ses- 
 of Laws, §§ 39-53. more v. United States, 93 U. S. 605; 
 
 2 People V. Piatt, 117 N. Y. 159, 37 Bangs v. Brewster, 111 Mass. 383. 
 
 N. Y. State Rep. 149. 6 Canda v. Robbing, 55 Hun, 605, 28 
 
 3 Pullen V. Monk, 82 Me. 412 ; Pen- N. Y. State Rep. 96. 
 
 field V. Chesapeake, O. & S. W. R 'State v. Plym, 48 Minn. 385: 
 
 Co., 134 U. S. 351. O'Gara v. Eisenlohr, 38 N. Y. 296; 
 
 * Hymen v. Schlenker, 44 La. Ann. Spriggs v. Moale, 28 Md. 497. 
 108; Ayers v. Weeks, 6 L. R. A. 716, s Cono v. Dunham, 59 Conn. 145. 
 65 N. H. 248 ; First Nat. Bank V. Bal- 9 Whiting v. Nichol, 46 III. 230; 
 
 com, 35 Conn. 357; Hampden v. Smith v. Knowlton, 11 N. H. 191. 
 
 Levant, 59 Me. 559 ; The Venus, 8 And see Presumption of Death. 
 Cranch, 353. 
 
BIIKDEN OF PROOF. 397 , 
 
 XIX. MAEEIAGB — PEOOF OF. 
 
 The presumption that a man lives and cohabits with his 
 lawful wife is a disputable one,' and the burden of proof is on 
 him who asserts either marriage or the contrary.^ It is pre- 
 sumed that every competent couple who lived together osten- 
 sibly in the way of husband and wife are such.' To prove the 
 contract it is suflBcient to prove an unconditional agreement 
 of marriage in the present, as distinguished from an executory 
 agreement to marry, if intended by the parties to constitute 
 them husband and wife, though without solemnization.^ And 
 proof of cohabitation is not necessary if there be proof of 
 solemnization.* But proof of a contract ^er- verba defuturo is 
 not enough, though followed by cohabitation.* But from the 
 fact of solemnization assent is presumed, and any eye-witness 
 may testify to the contract or its solemnization.' It may be 
 also proved bj'^ a marriage certificate, if made evidence by 
 statute, or if it is part of the res gestce. It may be also proved 
 by an official registry kept pursuant to statute, or by the 
 registry kept by the officiating clergyman, or by the proper 
 officer of a church or religious society, pursuant to his duty, 
 though without requirement of statute.* Cohabitation and 
 repute is primary evidence of marriage,' but its force depends 
 on its justifying an inference that a contract of marriage was 
 once made. Cohabitation alone, however long continued, is 
 not proof of marriage: there must be something to show that 
 the cohabitation was matrimonial." But proof of cohabitation 
 and that the parties were reputed among friends to be man and 
 wife will suffice, if the reputation be a general one; " and dec- 
 larations of either party that they were married is competent 
 against them, and so are the acts and conduct of the parties 
 
 • » United States v. Smith, 5 Utah, « Cheney v. Arnold, 15 N. Y. 345. 
 
 27a , But see I Bish. on M. & D., g 251. 
 
 2 Erskine v. Davis, 25 111. 251. ' Fleming v. People, 27 N. Y. 329 ; 
 
 ' State V. Schweitzer, 57 Conn. 532 ; Bissell v. Bissell, 55 Barb. 325. 
 
 1 Bish. on M. & D., § 484. 8 Maxwell v. Chapman, 8 Barb. 579. 
 
 * Cheney v. Arnold, 15 N. Y. 351 ; » 1 Bishi on M. & D., § 483. 
 
 Clayton v. Wardwell, 4 id. 231. " Grimmin's Appeal, 131 Pa. St 
 
 SCaujoUe v. Ferrie, 26 Barb. 177. 199; Com. v. Stromp, 53 id. 132. 
 
 "Hill V. Burger, 3 Bradf. 459. 
 
393 EULES OF EVIDENCE. 
 
 toward each other.i g^t they must be reasonably contempo- 
 raneous with the cohabitation and repute, so as to characterize 
 it.^ The mere continuance of a meretricious cohabitation, even 
 with matrimonial repute, can never amount to evidence of mar- 
 riage.' 
 
 XX. ISSUE AND LEGITIMACY. 
 
 § 47. Issue. — A person will be presumed to be dead with- 
 out issue after an absence of eighteen years without any intel- 
 ligence of him or of any issue ; and one claiming by collateral 
 descent must show who was the last entitled, and then prove 
 his death without issue. Next prove all the different links in 
 the chain of descent which will show that the claimant de- 
 scended from the same common ancestor, together with the 
 extinction of all those lines of descent which would take any 
 preference to the claimant.'' He must prove the marriages, 
 births and deaths, and identity of persons necessary to fix title 
 in himself, and the extinction of others who would have, if in 
 existence, a better title.* In the absence of evidence the pre- 
 sumption is that a person dying intestate left heirs.* 
 
 § 48. Legitimacy. — A person born during the continuance 
 of a valid marriage between his mother and any man, or within 
 such time after the dissolution thereof and before the celebra- 
 tion of another valid marriage that his mother's husband could, 
 according to the course of nature, have been his father, is pre- 
 sumed to be the legitimate child of his mother's husband.' 
 Legitimacy is a presumption of law in the absence of com- 
 petent evidence to the contrary ; * and the burden is on the 
 party denying the legitimacy of one shown to have been born 
 from a wife. A child born during a mother's coverture is 
 presumed legitimate, for if there be a possibility of legitimacy 
 the law will not weigh against it the doubt.' Neither husband 
 
 1 Jones V. Gilbert, 135 111. 27. Foster v. Hawley, 8 Hun, 68; Hyde 
 
 2 Gaines v. New Orleans, 6 Wall. v. Hyde, 3 Redf. 509. 
 707; Hayes v. People, 25 N. Y. 396; < Abb. Tr. Ev. 85. 
 
 1 Bish. on M. & D., §§ 497-506 ; Matter » Emerson v. White, 29 N. H. 491 ; 
 of Taylor, 9 Paige, 611. Spriggs v. Moale, 28 Md. 497. 
 
 5 Grimmin's Appeal, 181 Pa. St. 199. 6 Harvey v. Thornton, 14 111. 217. 
 But see 1 Bish. on M. & D., § 506 ; ' Stephen's Ev., art 9a 
 O'Gara v. Eisenlohr, 38 N. Y. 296 ; s Caujolle v. Ferrie, 23 N..Y. 105. 
 
 » Cross V. Cross, 3 Paige, 139. 
 
BURDEN OF PEOOF. 399 
 
 nor wife is competent either to prove or disprove non-access 
 or non-intercourse, directly or indirectly, even where preg- 
 nancy precede marriage.' But the declarations of either are 
 competent after his or her death to prove legitimacy or illegiti- 
 macy in any mode not involving the question of access. 
 
 XXI. HUSBAND AND WIFEi 
 
 § 49. Title — Law of place. — The law presumes a loan from 
 the mere fact of the receipt of the wife's money by the hus- 
 band.2 The title of husband and wife to movables is con- 
 trolled by the law of the place which was their domicile at 
 the time of the acquisition ; the validity of their transactions, 
 except as to the realty, by the law either of the place of the 
 transaction, or of the place fixed upon by the contract for its 
 performance, or of their domicile at the time of the transac- 
 tion.' The title to realty and the validity of transactions 
 affecting it are controlled by the law of the place where the 
 realty is situated. The form of the remedy and the compe- 
 tency of the evidence arfe governed by the law of the forum.* 
 The law presumes that the property in the possession of the 
 husband, or husband and wife together, belongs to the hus- 
 band.' So when she has no separate estate, or where she 
 purchases articles for family use, partly with her own money 
 and partly with his.* But where it is shown that he received 
 the property to his wife's use, or that she had the title, or that 
 it was in her possession, the presumption is that it is hers, 
 though realized by his labor as her servant upon her farm, or 
 in her business, or his skill or ability as her agent in the pur- 
 chase and resale of her property.' 
 
 § 60. Agency of one for the other. — A wife has no implied 
 authority, while living with her husband, to bind him in mat- 
 
 1 1 Taylor's Ev. 837. Mar. W., § 732 ; Turner v. Brown, 6 
 
 «Ee Wormley's Estate, 187 Pa. St Hun, 331 ; Black v. Nease, 37 Pa. St 
 
 101. 436. 
 
 s Reed v. Reed, 135 111. 483. « Glaim v. Younglove, 87 Barb. 480 ; 
 
 ♦Stoneman v. Erie R Co., 53 N. Y. Kelly v. Drew, 13 Allen, 107. 
 
 438. 7 Re Wormley's Estate, 137 Pa. St 
 
 5 Bucks V. Moore, 36 Mo. App. 539 ; 101 ; Hill v. Chamberlain, 30 Mich. 
 
 Stephenson v. Felton, 106 N. C. 114; 433; Peters v. Fowler, 41 Barb. 467; 
 
 Schouler's Dom. Rel. 214; 1 Bish. Al bin v. Lord, 39 N. H. 205. 
 
400 KTILES OF ETIDENOE. 
 
 ters not concerning their domestic affairs ; ' and the fact of 
 agency, whether of one for the other, or of a third person for 
 either, is to be proved like other agencies.^ The marital re- 
 lation raises no presumption of agency between them.' "When 
 the agency of the wife is alleged against the husband in mat- 
 ters of a domestic nature, slight evidence of actual authority is 
 enough;* but if his agency is alleged against her to divest her 
 of her estate, strict proof of authority is required/ 
 
 §51. Wife's title. — ^ Where personal property is found in 
 the possession of a married woman the presumption of law is 
 that her possession is that of her husband. The law requires 
 the wife in each case to rebut the presumption that whatever 
 she acquires belongs to her husband or is subject to his con- 
 trol.' She must give some evidence of her title besides pos- 
 session under the marital relation.' She may, however, prove 
 title by adverse possession against a third person, although 
 her husband lived with her.^ Evidence that the property 
 came to her from a third person, or a bill of sale running to 
 her individually, is prima facie evidence of her title.' She 
 may commence a separate estate or business by a purchase on 
 credit.*" On the question of title, the declarations of the per- 
 son who gave her the money with which she purchased the 
 property, and her correspondence with her business agent 
 showing the source of the fund, is competent as part of the res 
 <jest(B}^ Declarations made by a husband at the time of giving 
 his wife money, as to the purpose for which he gave it, and 
 •declarations as to the person for whom he was acting, made 
 when he received a security in her favor, are competent in 
 
 iGaffield v. Scott, 40 111. App. 380. ler's Dora. Rel. 10-20; Columbia Sav. 
 
 2Staker v. Begole, 34 Neb. 107; Bank v. Winn, 133 Mo. 80. 
 
 Bodine v. Killeen, 53 N. Y. 96. ' Smith v. Abair, 87 Mich. 63 ; John- 
 
 3 Hoffman v. McFadden, 56 Ark. son v. Johnson, 72 111. 491 ; Mygatt v. 
 
 317. Coe, 147 N. Y. 456. 
 
 *Hunt V. Hayes (Vt), 45 Alb. L. J. 8 Clark v. Gilbert, 39 Conn. 94. 
 
 414 ; Liudholm v. Kane, 83 Hun, 369, « Rhodes v. Wood, 93 Tenn. 702 ; 
 
 71 N. Y. State Rep. 579. Wasserman v. Willett (N. Y.), 10 Abb. 
 
 5Schouler'sDom. Rel. 99; Bank of Pr. 63; Deck v. Tabler, 41 W. Va. 
 
 Albion V. Burns, 46 N. Y. 170 ; Hofl- 232. 
 
 man v. Treadwell, 3 S. C. (T. & C.) 54 ; m 2 Bish. Mar. W., § 87. 
 
 2 Bish. Mar. W., § 407. " Hannis v. Hazlett, 54 Pa. St. 139; 
 
 e Hemelreioh v. Carlos, 24 Mo. App. Hall v. Young, 37 N. H. 134 ; Grain v. 
 
 :264; 3 Bish. Mar. W., § 82; Schou- Wright, 46 111. 107. 
 
BUEDEN OF PEOOF. 401 
 
 favor of her title.* To prove a gift by him to her the evidence 
 must be clear.^ A mere preponderance of proof is not suffi- 
 cient as against his creditor.' The fact that he allows her to 
 deal with property as her own which might be his by marital 
 right does not make it her property.* Thus, a grocery busi- 
 ness purchased by a wife with money saved by her, without 
 her husband's knowledge, out of the allowance made her for 
 household expenses, and conducted by her in her own name, 
 is liable for the payment of her husband's debts.' But if he 
 borrows it of her, agreeing to repay it, the agreement is good, 
 and his payment to her is valid as against his creditors.^ It 
 seems to be a question of intent.' And where she has a right 
 to her property bj'' law, as if sole, his dealing with it will be 
 presumed to be in the character of agent for her.^ To show 
 that she had a separate business, it is not enough to show an 
 isolated transaction, nor several disconnected acts, nor the 
 rendering of domestic service, without evidence that it was 
 intended by her and her husband as a separate business.' The 
 rental of property is not a separate business, but the manage- 
 ment of real or personal property for profit is a business.'" 
 
 §52. Actions by and against wife. — A wife may recover 
 for services rendered a third person under a contract made 
 through her husband as manager of the business of such per- 
 son ;'* but a contract by a husband to pay his wife for serv- 
 ices is not enforceable.'^ If a married woman brings an action 
 for injuries to her person to recover damages for disqualifica- 
 
 1 Kelly V. Campbell, 3 Abb. Ct. ' 3 Bish. Mar. W., § 446 ; Sohouler's 
 
 App. Dec. 493; 1 Bish, Mar. W., Dom. Eel. 314. 
 
 § 733. 8 Houston v. Clark, 50 N. H. 483. 
 
 2 Id.; Schouler'3 Dom. Eel. 343; 9 Porter v. Dunn, 131 N. Y. 314 ; 43 
 
 Smith V. Abair, 87 Mich. 63; Eider N. Y. State Eep. 193. 
 
 V. Hulse, 34 N. Y. 373; Shuttleworth 103 Bish. Mar. W., § 441; Cuck v. 
 
 V. Winter, 55 id. 629. Quackenbush, 13 Hun, 107 ; Smith v. 
 
 'Wells' Sep. Prop, of M. W. 387- Kennedy, id. 9. 
 
 317. 11 Cornelius v. Eieser, 44 N. Y. State 
 
 < Yester v. Hochstettler, 4 Wash. Eep. 491 (1893). 
 
 349. 12 Blaechinska v. Howard M. & H. 
 
 6 Aaronson v. McCauley, 19 N. Y. for L. W., 130 N. Y. 497 ; 43 N. Y. State 
 
 Supp. 690; 46 N. Y. State Eep. 564 Eep. 387; Filer v. N. Y. 0. E. Co., 49 
 
 (1893), N. Y. 47. 
 
 Maycox V. Caldwell, 51 N. Y. 395; 
 Eyder v. Hulse, 34 id. 373. 
 36 
 
402 E0LES or EVIDENCE. 
 
 tion to labor, etc., she must show that she has a separate 
 business, otherwise her husband is entitled to her labor.' 
 "When she asks to recover for medical attendance, nursing, 
 etc., she must show that she paid them from her separate prop- 
 erty.^ Where a married woman is sued for a tort, except in 
 regard to her separate estate, she may exonerate herself by 
 showing that it was committed by the coercion of her hus- 
 band. His direction is not enough ; nor is it necessary to show 
 physical compulsion. But she must show the immediate pres- 
 sure of authority and intimidation. If his presence is shown 
 his command is presumed.' The presumption of coercion is 
 open to rebuttal.* The fact that a wife lived with her hus- 
 band three years after executing a deed of her land under his 
 coercion and duress, without saying or doing anything about 
 the matter during that time, is not a ratification of the deed.' 
 To charrge her for family necessaries purchased by her while 
 living with her husband, it must appear: (1) That the goods 
 were suitable and necessary. (2) That she intended to charge 
 her estate. (3) That the credit was given to her.* 
 
 § 53. Actions by and against husband. — The basis of an 
 action by a husband for the alienation of his wife's affections 
 is the loss of the consortium, and not the loss of her services;' 
 and proof of adultery is not essential to the maintenance of 
 an action. Where a husband sues for his wife's services, her 
 admission of payment is not generally competent ' Evidence 
 that he knew of and assented to purchases made by her 
 renders him liable therefor." Thus, the agency of the wife to 
 order, on her husband's credit, articles suitable for herself and 
 family, may be inferred from her being permitted to receive 
 them in his house.^" But this rule does not make him liable for 
 goods purchased after she has left him without cause, or 
 where she has an adequate income of her own with which 
 
 1 Barnes v. Moore, 86 Mich. 585 ; ^ Thompson v. Thompson, Vd'2 Ind. 
 Porter v. Dunn, 131 N. Y. 313, 61 288. 
 
 Hun, 310 ; Filer v. New York Central « Wells' Sep. Prop, of M. W. 455. 
 
 R Co., 49 N. Y. 47. 7 Adams v. Maine, 3 Ind. App. 232. 
 
 2 Moody V. Osgood, 59 Barb. 628. sgchouler's Dom. Rel. 112. 
 3Com. V. Munsey, 112 Mass. 289; 9 2 Bish. Mar. W., § 82. 
 
 Eeeve, Dom. Rel. 150. 10 2 Whart. Ev., § 1256; Ogden v. 
 
 4 2 Whart Ev., § 1267. Prentice, 33 Barb. 160. 
 
BURDEN OF PEOOF. 403 
 
 she can supply herself.' And where he shows that the credit 
 was given against his express orders to plaintiff, the burden 
 is on the plaintiff to show not only that the things furnished 
 were, in their nature, suitable and necessary, but also that the 
 husband neglected his duty to provide supplies, and therefore 
 they were needed in the particular case.^ 
 
 SXII. PUBLIC OFFIOEKS. 
 
 § 54. Title to office — When strict proof of is necessary. 
 
 Though title to an office cannot be determined in a collateral 
 proceeding, sufficient inquiry may be made to determine 
 whether a claimant is or is not a mere intruder.' "Where the 
 ■ issue is directly between the officer and the public, whether 
 in an action by the state, or by or against other public offi- 
 cers, strict proof of title is necessary. Thus, in an action for 
 salary belonging to himself, an officer sues in his individual 
 capacity, and he must prove his regular legal title, and his cer- 
 tificate of election is on\j prima facie evidence of title.* In a 
 prosecution on behalf of the public for refusing to accept 
 oflHce, or to continue its exercise, the best evidence of appoint- 
 ment must be produced.^ An officer suing for property as to 
 which his only title is by virtue of his office must show a 
 legal title to the office.^ And to charge him with responsi- 
 bility for a deputy or other subordinate, the appointment 
 must be shown, or that the latter acted as such with his 
 knowledge and assent.' In such cases the certificate of elec- 
 tion or commission coming from the proper source is prima 
 fade evidence of the party's right to the office; but its exist- 
 ence is not essential unless made so by statute.* In other 
 cases proof of an oral appointment is sufficient.' If the stat- 
 ute requires a written oath to be filed, the taking of the oath 
 cannot be proved in any other manner than by the original 
 
 ' Hunt V. Hayes (Vt), 45 Alb. L. J. ' People ex rel. Henry v. Nostrand, 
 
 414. 46 N. Y. 375. 
 
 2 Keller v. Phillips, 39 N. Y. 351. 'Spragua v. Brown, 40 Wis. 612; 
 
 'United States v. Alexander, 46 Curtis v. Fay, 37 Barb. 64. 
 
 Fed. Rep. 738. 6 People ex rel. Babcock v. Murray, 
 
 < Dolan V, Mayor, etc., 68 N. Y. 378 ; 5 Hun, 43. 
 
 State V. Smith, 17 E. I. 415. » Hoke v. Field, 19 Am. Rep. 58. 
 
 ' Bentley v. Phelps, 27 Barb. 524. 
 
404 E0LES OF EVIDENCE. 
 
 or a certified copy thereof. JSTeither the appointment of a 
 deputy nor his relation to his principal can be proved merely 
 by his acts, or his testimony that he acted as such.^ 
 
 § 55. When strict proof of not necessary. — (a) As a gen- 
 eral rule, proof that a person acted as a certain officer is con- 
 clusive of the creation of the office as well as of his election 
 or appointment.'^ And in actions against public officers it is 
 sufficient in most cases to show either (1) that he was an 
 officer de facto, that is, that he acted as such, with color of 
 title; or (2) that he assumed to act as such in the transaction" 
 in question, without color of title.' This is sufficient and con- 
 clusive on an issue between third persons, or between them 
 and the officer, or between them and the public* But a mere 
 intruder who, without color of authority, simply assumes to 
 act as an officer, is not an officer de facto, where the public 
 know or ought to know that he is an usurper, and his acts 
 are absolutely void for all purposes.^ 
 
 (5) Where an officer sues by virtue of a process issued to him, 
 possession under it sufficiently proves his authority, if fair on 
 its face, and he need not prove the judgment or order on 
 which it was issued.^ And when the officer is sued, the pro- 
 cess, if fair on its face, is a protection ; and it is not necessary 
 for him to give other evidence of jurisdiction of the person 
 than the production of the process.' 
 
 (c) A contract made by a public officer within the scope of 
 his authority is presumed to have been onade in his official 
 capacity.' But the government is not bound by the act of 
 its officer, unless it appear that he acted within the scope of 
 his authority, or was employed, in his capacity as a public 
 officer, to do the act for it.' The officer is not personally 
 liable if he acted in good faith and within his instructions.'" 
 
 1 Curtis V. Fay, 37 Barb. 67. 6 Clearwater v. Brill, 63 N. Y. 627. 
 
 2 North V. People, 138 111. 81. ' Chagery v. Jenkins, 5 N. Y. 876; 
 
 3 Wilcox T. Smith, 5 Wend. 231 ;1 Russell v. Hubbard, 6 Barb. 654; 
 'Greenl. Ev., § 92. Leachman y. Dougherty, 81 III. 324. 
 
 estate V. Lewis, 107 N. C. 967; « Parks v. Ross, 11 How. (U. S.) 
 
 State V. Geer, 48 Kau. 752 ; Manning 362. 
 
 V. Weeks, 139 U.S. 504; State V. Car- 9 Whiteside v. United States, 93 
 
 roll, 9 Am. Rep. 409. U. S. 247. 
 
 6 Van Arminge v. Taylor, 108 N. C. w Hall v. Lauderdale, 46 N. Y. 7a 
 196. 
 
BUKDEN OF PEOOF. 405 
 
 (d) In an action by a public officer founded on his oiBcial 
 acts, his own return, if filed in the proper office, is compe- 
 tent jprtmas _/fflCie evidence in his favor.' In a private action 
 against an alleged officer, parol evidence of his official char- 
 acter is admissible notwithstanding there is a record.^ That 
 he assumed to act as such officer in the matter is sufficient 
 against him as an estoppel.' 
 
 (e) An officer is presumed to have done bis duty until the 
 contrary is proved ; and the burden of proving affirmatively 
 
 •a breach of official duty is upon the plaintiff, who must show 
 'every fact necessary to constitute such breach.* 
 
 (/) The return of an officer is conclusive as to his acts 
 stated in it within the scope of his duty, as against him and 
 those claiming in privity with him, as evidence in favor of 
 parties Who claim an interest or right under the return; and 
 neither the officer nor his deputy can testify in contradiction 
 of it.' But he can show any facts relevant to his defense 
 which are not included in nor contradicted by his return.* 
 
 (g) Where a return Is put in evidence by the officer himself 
 in his own defense, it is not conclusive in his favor. In no 
 case is it evidence in his favor of matters stated as an excuse 
 for non-performance of such official acts as he is by it re- 
 quired to perform.' The return is only conclusive against the 
 officer when it is filed in the office from which it was issued. 
 Prior to such filing it is competent against him as an admis- 
 sion, and, if made in pursuance of duty, is competent in his 
 favor.' If defendant, justifying as an officer, produces the 
 record of his appointment by an authority having apparent 
 jurisdiction, this is conclusive.' He need not prove that the 
 appointing power was dejure}" 
 
 'Cornell V.Cook, 7 Cow. 310. 'Sheldon v. Payne, 7 N. Y. 453; 
 
 2 North V. People, 139 111. 81 ; Dean Armstrong v. Garrow, 6 Cow. 465. 
 
 ■V. Gridley, 10 Wend. 254. « Freeman on Ex., g§ 364-366. 
 
 ' 1 Greenl. Ev., § 307. ' Browning v. Hanfovd, 5 Denio, 
 
 *Hartwellv. Root, 19 Johns. 345; 586. 
 
 Oraig V. Adair, 23 Ga. 373 ; Wilkes v. 8 Nelson v. Cook, 19 111. 440 ; Bech- 
 
 Dinsman, 7 How. (U. S.) 130 ; Mari- steia v. Samniis, 10 Hun, 585. 
 
 copa & P. R. Co. V. Arizona, 156 U. S. " State ex rel. Leonard v. Sweet, 27 
 
 347. La. Ann. 541. 
 
 1' Stevens v. Newcomb, 4 Denio, 437. 
 
406 EULES OF EVIDENCE. 
 
 XXIII. PARTNERS AND JOINT OONTKAOTOES. 
 
 § 56. Joint contractors.— In New York an admission made 
 by one joint promisor, although acted on by a third person, 
 does not estop the other promisor, for simple joint contractors 
 are not, like partners, held to be agents for each other.' And 
 two or more parties, each of whom acts for himself in pro- 
 ducing a result injurious to another, are not jointly liable for 
 the injury.^ But in some of the states the rule is that, where 
 several persons are jointly interested in the subject-matter 
 of the suit, the admissions of any one of these persons are 
 receivable against himself and fellows, whether they be all 
 jointly suing or sued, or whether an action be brought in 
 favor of or against one or more of them separately, provided 
 the admissions relate to the subject-matter in dispute, and be 
 made by the declarant in his character of a person jointly in- 
 terested with the party against whom the evidence is ten- 
 dered.' As a part of the res gestae, joint possession alone may 
 be sufficient to admit evidence of the separate contempo- 
 raneous declaration of either possessor, as characterizing the 
 joint possession.* The connection between parties which ren- 
 ders the declarations of one competent against the other can- 
 not be proved by the declaration itself, but it must be sepa- 
 rately proved, as the foundation for admitting the declaration. 
 It is in the discretion of the trial court to allow a declaration 
 to be proved first on the promise to connect it afterwards.' 
 It seems, however, that the question of connection is a pre- 
 liminary question for the court.^ 
 
 § 57. Partners — Proof of partnership. — (1) Actual part- 
 nership is the creature of agreement. Without some evidence 
 of the partnership agreement, no partnership in fact can be 
 found to exist.' And though the same strictness of proof is 
 not required to charge defendants as partners as is required 
 
 1 Lewis V. Wood worth, 3 N. Y. 513 ; 6 place v. Minister, 65 N. Y. 89. 
 Shoemaker v. Benedict, 11 id. 176. 6 Jones v. Hurlburt, 39 Barb. 403. 
 But see Newman V. Stuckey, 57 Hun, 'Robinson v. Hope, 103 Mo. 410; 
 589, 32 N. Y. State Rep. 876. Assurance Co. v. Drennen, 116 U. S. 
 
 2 Miller V. Highland Ditch Co., 87 461; Paul v. CuUum, 182 id. 539; 
 Cal. 430. Walker v. Hirsch, 27 Ch. Div. 460; 
 
 3 1 Tayl. Ev. 655, § 674. Salter v. Ham, 31 N. Y. 331 ; Heye v. 
 
 4 IJawson V. Callaway, 18 Ga. 373. Tilford et al., 73 N. Y. State Rep. 430. 
 
BUEDEN OF PEOOF. 407 
 
 to establish the partnership of persons bringing an action, its 
 existence cannot be established by such indefinite secondary 
 evidence as general reputation, circumstances, etc.^ 
 
 (2) A partnership may be proved by the testimony of a 
 partner, or by that of a witness who has done business with 
 them or for them; and a witness who knows that they have 
 done business as such, at the time in question or other times 
 reasonably proximate, may testify directly to the fact that 
 they were partners, subject, of course, to cross-examination 
 as to the details.^ And it is competent to show that one part- 
 ner introduced the other to the witness as his partner.' 
 
 (3) If a written contract sued on runs to the plaintiffs in 
 a firm style, its production is sufficient evidence of the exist- 
 ence of a partnership as against defendants who have signed 
 it.* But it is different where the copartners are defendants. 
 The names of the members must be proved, but slight evidence 
 is enough.* The existence of the firm may be inferred from 
 the agreement of dissolution,* even in transactions as to real 
 property." 
 
 (4) It is sufficient to show that a person held himself out 
 or suffered himself to be held out to the world as a partner;' 
 as that hand-bills bearing their names as partners were cir- 
 culated by the defendant, or that the knowledge that they 
 were so circulated came to the defendant.' But it must ap- 
 pear that the holding out was done by the defendant or by 
 his consent, and it must have been known by the person seek- 
 ing to avail himself of it.^" 
 
 (5) Plaintiff's allegation that defendants were partners is 
 conclusive on them so far as to render evidence of the admis- 
 sions and declarations of either of them, made while they sus- 
 tained the relation, competent against all." Where a plaintiff 
 deals with a firm on the faith that a person is a partner 
 thereof, he will be liable to such party, though having no in- 
 
 1 Cooper V. Wood, 1 Colo. App. 101 ' Chester v. Dickerson, 54 N. Y. 1. 
 
 2 Gilbert v. Whidden, 20 Me. 368; SElmira Iron & S. Boiling Mill Co. 
 Grew V. Walker, 17 Ala. 834. v. Harris, 124 N. Y. 280 ; Willis v. 
 
 3 Gilbert v. Whidden, 20 Me. 368. Rector, 50 Fed. Rep. 684. 
 
 < McGregor v. Cleveland, 5 Wend. 9 Bennett v. Holmes, 32 Ind. 108; 
 
 475 ; Meyers v. Boyd, 44 Mo. App. 378. Penu v. Kearney, 21 La. Ann. 21. 
 
 «Widdefield v. Widdefield, 32 Pa. i»Seabury v. Bolles, 52 N. J. L. 413. 
 St 93. n Atherton v. Tilton, 44 N. H. 453. 
 
 « Emerson v. Parsons, 46 N. Y. 56a 
 
408 EULES OF EVIDENCE. 
 
 terest, if he allowed his name to be held out as such ; and a 
 general holding out is enough to raise a legal presumption ol 
 partnership, irrespective of whether the representation was 
 brought to the dealer's notice.^ 
 
 (6) To charge a dormant partner with the others, the knowl- 
 edge or ignorance of those dealing with the firm that he was 
 such is wholly immaterial. It is enough to prove that he was 
 actually a partner. But a dormant partner need not give no- 
 tice of his withdrawal from a partnership in order to relieve 
 himself from liability for subsequent transactions of the firm.* 
 Where defendants represented or conducted themselves as 
 partners, and were trusted as such in the dealing in question, 
 or the one whose relation is contested did so, this is conclusive.' 
 
 (7) Where there is prima facie evidence of the partnership, 
 or that others were partners with the declarant, his admis- 
 sions and declarations are competent as against any one of his 
 copartners, whether litigating the case, or not appearing or 
 not even served, whether made to the plaintiff or to a third 
 person, and whether made at or after the transaction in suit, 
 or within a reasonable time before it.'' 
 
 § 58. Partners — How far liable. — {a) To charge one as a 
 partner he must be shown either to have been a member when 
 the contract sued on was made or the tort committed, or that 
 he had assumed the prior liabilities. It is not sufiicient that 
 the person seeking to charge him as such supposed him to be 
 a partner.^ It is competent to show its existence prior or 
 subsequent to the time of the transaction in suit, if within a 
 reasonable period.* The commencement of the agency or 
 holding out is prima facie evidence of the commencement of 
 the partnership.' 
 
 (5) The presumption of law is that an incoming partner does 
 
 1 Elmira Iron & S. Rolling Mill Go. 120 N. Y. 298 ; Kelly v. Scott, 49 N. Y. 
 
 V. Harris, 124 N. Y. 280 ; Poillon v. 601 ; Hicks v. Cram, 17 Vt 449. 
 Secor, 61 N. Y. 456. * G raf ton Bank v. Moore, 14 N. H. 
 
 2 Elmira Iron & S. Rolling Mill Co. 145; Bennett v. Holmes, 32 Ind. 108; 
 
 T. Harris, 124 N. Y. 280, 35 N. Y. State Smith v. Collins, 115 Mass. 388. 
 Rep. 343 ; Heflfuer v. Palmer, 67 III. 5 Lincoln v. Craig, 16 R I. 18 ; Cole 
 
 161; Teller v. Patten, 20 How. (U. S.) v. Butler, 24 Mo. App. 76; Fuller v. 
 
 125. Rowe, 57 N. Y. 23. 
 
 ^Meriden Nat. Bank v. Gallaudet, eFleshman v. Collier, 47 Ga. 353. 
 
 ' Burns v. Rowland, 40 Barb. 368. 
 
EUEDEN OF PROOF. 409' 
 
 not assume liability for the outstanding debts of the partner- 
 ship. But if the new firm takes the assets and continues the- 
 business in the same place, slight evidence is sufficient to war- 
 rant the presumption that it has assumed the liabilities of the 
 old firm.^ 
 
 (c) An act of one partner within the scope of the firm business,, 
 or incidental thereto, done in the firm name, and not requir- 
 ing a seal, is binding upon all the partners;^ and proof of the 
 existence of the partnership is sufficient evidence of authority.' 
 And to show the scope of the business, evidence of the pre- 
 vious dealings, the acts of the partners, and of the common 
 usual dealings of persons engaged in the same trade or busi- 
 ness at the same locality, is competent.* But the declarations 
 of one partner as to authority, or the scope of business, are not 
 competent as against the other partners.* But upon the ques- 
 tion as to whom credit was given, where the partnership has 
 been shown, and the act not be3'ond its scope, the declaration 
 of any partner, made at the time of the transaction, or during 
 the continuance of the partnership relation, is competent to 
 show that the act was done on behalf of the partnership. It 
 is enoufrh prima facie to show that the transaction was in the 
 firm name.* 
 
 (d) A sealed instrument executed in the name of a firm hy 
 one of its members without the proper authoritj'^, where a 
 seal is necessary, is the deed of such member only, and h& 
 alone is bound by it.' But if the seal is unnecessary, the act 
 will bind the firm as a simple contract, and the seal may be- 
 rejeoted.' 
 
 (e) The deed of a firm may be ratified by parol.' And the 
 ratification of an act done by one partner beyond the scop& 
 
 iRickards v. Hene, 30 Neb. 259; bins (S. D.), 48 N. W. Rep. 833; Bank 
 
 Show Y. McGregor, 105 Mass. 96. of Commerce v. Mayer, 43 La. Ann. 
 
 2 Goodman v. Goetz, 36 N. Y. State 1031 ; Elliot v. Dudley, 19 Barb. 326. 
 
 Rep. 731 ; Eldridge v. Horgreaves, 80 « Stockwell v. Dillingham, 50 Me. 
 
 Neb. 638. 443. 
 
 'Smith V. Collins, 115 Mass. 388. ' Schmetz v. Schreeve, 1 Am. Rep. 
 
 •• North Star Boot & S. Co. v. Steb- 439 ; Gibson v. Warden, 14 Wall. 344. 
 
 bins (S. D.), 48 N. W. Rep. 833 ; Story SHaskinson v. Elliott, 63 Pa. St.. 
 
 on Part. 303 ; Clayton v. Hardy, 37 293 ; Mason v. Breslin, 40 How. Pr, 
 
 Mo. 536. (N. Y.) 436. 
 
 5 North Star Boot & a Co. v. Steb- 9 Story on Part 314 
 
410 EtTLES OF EVIDENCE. 
 
 of his authority may be inferred from circumstances.^ But 
 knowledge of the act of the partner, without knowledge of 
 the facts making the act a fraud on them, is not enough ; so 
 'silence and inaction under full knowledge is not enough, un- 
 less made so by being known to and acted on by the other 
 party .^ But ignorance or innocence is no defense to fraud or 
 deceit committed by one partner in a transaction in the 
 •course of the partnership business.' Though it is otherwise 
 if the act was wholly foreign to the business, yet if the act 
 was incidental to the exercise of an implied power, the re- 
 ceipt of the benefits of it, with knowledge of the facts, is 
 conclusive against them.* 
 
 § 59. Dissolution — Effect of. — Partners are not agents of 
 each other in transactions relating to the dissolution of the 
 firm.' And as a general rule, the agency of partners for each 
 other terminates with dissolution, and in the absence of spe- 
 cial authority or ratification no executory contract or prom- 
 ise by one after dissolution binds the other.^ But the collec- 
 tion of debts and the disposal of assets by either general 
 partner, after dissolution, are valid as against the others in 
 favor of third persons.' Except in case of dissolution caused 
 by death, bankruptcy or war, one who defends on the ground 
 of dissolution must prove the dissolution, and notice thereof 
 to the other party .^ But it is different where the retiring 
 partner's name was never used, and the plaintiff never knew 
 of his connection with the firm, and he ceased to be a partner 
 ijefore the transaction.' No notice of dissolution is necessary 
 as to those who at or before the time of their transaction did 
 not know of the existence of the partnership,^" as against 
 those who had previous knowledge of the partnership but 
 
 1 Hayes v. Baxter, 65 Barb. 181. N. Y. State Rep. 825; Thompson v. 
 
 2 Elliott V. Dudley. 19 Barb. 326. Rowman, 6 Wall. 316. 
 
 2 Chester v, DickinsoD, 54 N. Y. 1 ; 'Lutterloh v. Mellhenny Co., 74 
 
 Stockwell V. United States, 13 Wall. Tex. 73 ; Robbins v. Fuller, 24 N. Y. 
 
 531. 570. 
 
 4 Muri-ay v. Binninger, 3 Abb. Ct. 8 Ellison v. Sexton, 105 N. C. 356 ; 
 
 App. Deo. 336. Wade on Notice, 234. 
 
 'Suramerlot v. Hamilton, 121 Ind. 'Elmira Iron, etc. & S. Rolling Mill 
 
 «7. Co. V. Harris, 134 N. Y. 280 ; Phillips 
 
 6 Peyser v. Myers, 135 N. Y. 699, 48 v. Nash, 47 Ga. 218. 
 
 '"Knaus v. Dudgeon, 110 Mo. 58, 
 
BUEDEN OF PROOF. 411 
 
 had not previously given thera credit. Eut as a general rule 
 constructive or implied notice is necessary as to all persons 
 having no previous dealings with a partnership.^ Any notice 
 of dissolution given to all who had previously dealt with the 
 firm is sufficient. But it seems that the proper change of the 
 firm name is sufficient.^ So is a notice by advertisement in a 
 newspaper, or any other notice which puts the public on guard.' 
 The circulation in the community of a general rumor that one 
 member of a firm has retired is admissible, not as being itself 
 sufficient to put any particular person on notice of the dissolu- 
 tion of the firm, but a circumstance to be considered by the 
 jury in connection with the other evidence bearing on the ques- 
 tion of notice.* But as against those who had given them 
 credit in previous dealings there must be evidence of actual 
 notice or something tantamount thereto.^ 
 
 1 Joseph V. Southwork F. & M. Co., 47 La. Ann. 346 ; Bank, etc. v. Dela- 
 
 93 Ala. 13. field, 80 Hiin, 564. 
 
 2Kehoe v. Corville, 84 Iowa, 415. * Asquew y. Silman, 95 Ga. 678. 
 
 'Hunt V. Colorado Mill & E. Co., 1 « Austin y. Holland, 69 N. Y. 571 ; 
 
 Colo. App. 120 ; Clapp v. Rogers, 13 Deering v. Flanders, 48 N. H. 225 ; 
 
 N. Y. 283; Lovejoy v. SpaflEord, 93 Wade on Notice, 220; Kennedy v. 
 
 Ui S. 430; Colder v. Their Creditors, Atwater, 77 Pa. St. 34. 
 
CHAPTER XIL 
 HEARSAY EVIDENCE. 
 
 L OF HEARSAT EVIDENCE. 
 § 1. In general. 
 3. Hearsay — What is — When ad- 
 missible. 
 
 IL MATTERS OF PUBLIC AND GENERAL 
 
 INTEREST. 
 
 3. Pubhc interest — What is, 
 4 Public and general — Distinc- 
 tion between. 
 
 5. What matters involve public 
 
 or general interest 
 
 6. Rights must be ancient and 
 
 I declarants dead. 
 
 7. Ante litem motam. 
 
 8. lAs mota — What is. 
 
 9. Declarations post litem motam. 
 
 10. Witness need not specify from 
 
 whom he heard. 
 
 11. What matters not admissible 
 
 as hearsay. 
 
 12. Particular facts. 
 
 13. Maps, documents, etc. 
 
 IIL HEARSAY AS TO FACTS OP FAMILY 
 HISTORY. 
 
 § 14. In general. 
 
 15. Facts that may be proved. 
 
 16. By whose declarations proved. 
 
 17. Marriage. 
 
 18. Family records. 
 
 19. Old documents, inscriptions, etc. 
 SO. Declarations of deceased per- 
 sons. 
 
 21. Of other persons, admissible 
 
 when. 
 83. Declarations made in view of 
 
 controversy. 
 
 23. When declarant alive. 
 
 24. Declarations in the course of 
 
 duty. 
 
 25. Public records. 
 
 26. Recital of public facts in stat- 
 
 utes, etc. 
 
 27. Entries made by deceased at- 
 
 torneys and officers. 
 
 I. OF HEARSAY EVIDENCE. 
 
 § 1. In general. — It is a general rule that hearsay evidence 
 is not admissible to establish any specific fact which, in its 
 nature, is capable of being proved by witnesses who speak 
 from their own knowledge; ^ or, in other words, that evidence, 
 whether written or spoken, which does not derive its credi- 
 bility solely from the credit due to the witness himself, but 
 rests in part upon the veracity and competency of some other 
 person from whom the witness received the information, is 
 not admissible to establish a substantive fact.^ And this is 
 
 iSnodgrass V. Caldwell, 90 Ala. 558, 39 N. Y. State Rep. 768 ; 1 Greenl, 
 
 319; Bridgman v. Corey, 63 Vt 1 ; Ev,, §98; Mima Queen v. Hepburn, 
 
 Titteringtou v. Trees, 78 Tex, 567; 7 Cranch, 290; Davis v. Wood, 1 
 
 Abel V. State, 90 Ala. 631. Wheat. 6, 8 ; Salem Co. v. Penning- 
 
 ^Griswold v. Burrows, 60 Hun, ton, 62 Ind, 175; Fougue v. Burgess, 
 
HEARSAY EVIDENCE. 413 
 
 the rule although the matter sought to be proved was, at the 
 time it was made, against the interest of the person making 
 it, and although no other evidence can possibly be obtained ; ^ 
 as, where it is the declaration of a person who was the only 
 eye-witness and who keeps out of the way to avoid being sub- 
 poenaed.^ The reason of the rule is, that such evidence re- 
 quires credit to be given to the statement of a person who is 
 not under the obligation of an oath or any of the ordinary 
 tests for ascertaining the truth of the statement.' The above 
 rule is subject to many exceptions which are as well established 
 as the rule itself. These exceptions are mainly embraced under 
 the following heads: (1) Admissions by parties in interest. 
 (2) Pedigree. (3) Boundaries. (4) Dying declarations. (5) Ec- 
 lating to matters of general public concern. (6) Declarations 
 or entries made in the course of office or business. (7) Ancient 
 possession. (8) Declarations against interest by person de- 
 ceased. (9) Testimony given by a witness on a former trial, 
 since deceased.* 
 
 §3. Hearsay — ^What is — When admissible.— The term 
 "hearsay" is used to denote that kind of evidence which does 
 not derive its value solely from the credit to be given to the 
 witness himself, but rests also, in part, on the veracity and 
 •competency of some other person.' Thus, testimony of a wit- 
 ness as to what he has been told, but who knows nothing per- 
 sonally, is mere hearsay ; ^ as, the testimony of a physician, that 
 other physicians concurred with him in his opinion, is hearsay.' 
 So testimony of plaintiff, in an action for breach of promise, 
 that she had heard that defendant was very rich.^ It does not 
 
 71 Mo. 388 ; Coleman v. South wiok, 2 Woodward v. Paine, 15 Johns. 493. 
 
 9 Johns. 45; Anderson v. Fetzer, sgtevens v. Vrooman, 16 N. Y. 381 ; 
 
 75 Wis. 563; Village v. Crawford, 18 Cotrell v. Com., 13 Ky. L. Rep. 306; 
 
 Neb. 551 ; Shaw v. Susquehanna Mobile & O. E. Co. v. George, 94 Ala. 
 
 Boom Co., 135 Pa. St. 324; Scales v. 199. 
 
 Desha, 16 Ala. 308; Sherwood v. * 1 Greenl. Ev., § 127. 
 
 Houston, 41 Miss. 59; Page v. Parker, = state v. Ah Lee, 18 Oreg. 540; 1 
 
 40 N. H. 47; Demoaey v. Walker, 1 Phil. Bv. 185. 
 
 N. J. L. 33; Brooks v. Acton, 117 « Crockett v. Althouse, 35 Mo. App. 
 
 Mass. 204; Forrester v. State, 46 Md. 404; Goodson v. Brothers, 111 Ala. 
 
 154; Kent v. Mason, 79111. 540; Cob- 589; Heisey v. Rapho Tp., 181 Pa. St. 
 
 leigh V. MoBride, 45 Iowa, 116 ; Born- 561 ; Baird v. N. Y. C. & H. R. R. Co., 
 
 heimer v. Baldwin, 43 Cal. 37. 16 App. Div. 490. 
 
 iColle V. McDaniel, 33 Mo. 363; ^Hussey v. State, 87 Ala. 131. 
 
 Bailey v. Wood, 34 Ga. 164 ; Gordon ^ Totton v. Read, 33 N. Y. State Rep. 
 
 y. Bowers, 16 Pa. St, 336. 46, 10 Daly, 283. 
 
414 EULES OF EVIDENCE. 
 
 ■follow, because the writing or words in question are those of 
 a third person not under oath, that therefore they are to be 
 considered as hearsay. Thus, where the question is whether 
 the party acted wisely, prudently or in good faith, the in- 
 formation on which he acted, whether true or false, is original 
 and material evidence. So are replies given to inquiries made 
 at the residence of an absent witness, and all other communi- 
 cations, whenever the fact that such communication was made, 
 and not its truth or falsity, is the point in controversy .^ Evi- 
 dence of general reputation, reputed ownership, public rumor, 
 general notoriety, and the like, though composed of the speech 
 of third persons not under oath, is original evidence and not 
 hearsay.^ But hearsay evidence, though it may tend to prove 
 good faith in the transaction which is the subject-matter of 
 the suit, is not competent for any purpose ; ' as that a debtor 
 has left the state.* So the reputed influence of one man over 
 another.' So testamentary capacity cannot be proved by 
 rumors.* The declarations of a deceased person are admissi- 
 ble only as to those things to which he could testify if sworn 
 in the case, and should state facts and not conclusions.^ But 
 the fact that declarations, if true, would bear upon the rights 
 of third persons cannot exclude them if otherwise competent.' 
 
 The first rule is that the witness may not repeat to the 
 court his own previous narratives or statements concerning 
 the relevant facts made to other persons out of court; when 
 he is in the witness-box he must take his mind back directly, 
 so to speak, to the facts he is called to prove, and must give 
 to the court his present recollection of those facts.. 
 
 The second rule is that the witness must testify only of 
 those relevant facts which he has himself seen or heard or per- 
 ceived ; he may not transmit to the court information which 
 he has received from other persons. This rule is familiarly 
 known in the form of the maxim, "Hearsay is no evidence." 
 
 Both rules are based on the same principle, namely, that the 
 law will not receive as evidence of the relevant facts any nar- 
 rative statement that was not made from personal knowl- 
 
 1 1 Greenl. Ev., gg 98, 99 ; Hill v. * Tucker v. Wilkins, 105 N. C. 273. 
 
 North, 34 Vt. 604; People, Eakins v. estate v. Evans, 33 W. Va. 417. 
 
 Eoosevelt, 16 App. Div. 364. 6 Thompson v. Ish, 99 Mo. ICO. 
 
 2 Maxwell L. G. Co. v. Dawson, 151 ' Egan v. Green (Mich), 45 N. W. 
 U. S. 586. Eep. 74; State v. Elkius, 101 Mo. 344. 
 
 3 De Ford v. Orvis, 43 Kan. 303. 8 Jacobs v. Callaghan, 57 Mich. 11. 
 
HEAESAT EVIDENCE. 415 
 
 edge and in open court where evidence can be tested, and, 
 if false, confuted.^ The rule excludes not only statements, 
 whether oral or written, but also a person's conduct whenever 
 it is relied upon for the same purpose as an express statement f 
 that is, as tending to show his Icnowledge or opinion in regard 
 to the existence of some fact which it is sought to prove. Thus, 
 where the issue was whether a testator was of sound mind at 
 the time when he made his will, a question upon which those 
 who knew him would be entitled to give evidence as to his 
 habits and conduct and mental condition, it was held that the 
 defendant was not entitled to put in evidence certain letters 
 from friends and acquaintances of the deceased which were 
 not proved to have been read and understood by him. The 
 only purpose of tendering them in evidence was to show from 
 the nature of their contents that the writers considered the 
 testator as a person of intelligence, capable of understanding 
 them; but it was held that this was equivalent to giving evi- 
 dence of the statements or opinions of the writers without 
 calling them as witnesses.^ 
 
 The rule against hearsay applies in strictness to the proof 
 of the relevant facts in the course of cross-examination just as 
 much as to their proof by examination-in-chief; that is to say, 
 a party is not entitled to prove his case metely by eliciting 
 from his opponent's witness in cross-examination, not his own 
 knowledge on the subject, but what he has heard others say 
 about it but has not verified for himself. The application of. 
 the rule is, however, obscured by the fact that the opponent 
 is entitled to test the witness' own conduct and consistency, 
 and for that purpose to interrogate him as to statements made 
 to him by other persons, so that the party by whom the wit- 
 ness was called is not entitled to exclude the question, but 
 only to comment to the jury on the effect and value of the 
 witness' answer. 
 
 ir. MATTERS OF PUBLIC AKD GENEEAL INTEEEST. 
 
 §3. Public interest — What is. — Declarations are gener- 
 ally deemed to be competent when they relate to the exist- 
 
 IR. V. Eiiswell, 3 T. R. 707 ; Berbe- Life Ins. Co. v. Selby, 44 U. S. App» 
 
 ley Peerage Case, 4 Camp. 401, 414; 283. 
 
 Nelson v. Flint, 166 U. S. 276; Chap- 2 Wright v. Doe, 7 A. & E. 313, 4 
 
 man v. Neary, 115 Cal. 79; Mutual Bing. N. C. 489. 
 
416 KULES OF EVIDENCE. 
 
 ence of any public or general rights or custom or matter of 
 public or general interest ; and it is a general rule that declara- 
 tions, in any form, concerning matters of public or general in- 
 terest may be given in evidence, provided such statements are 
 made by persons possessing sufficient opportunities for knowl- 
 edge and for correction by conflicting discussion,^ provided 
 that the declarant is dead^ and that the statements were made 
 ^nte litem motam? Facts of private interest cannot be proved, 
 though necessarily involved in matters of general interest.'' The 
 term " interest" means pecuniary interest, and the grounds of 
 admissibility are, that as the origins of such rights are generally 
 ancient and obscure they are usually incapable of direct proof, 
 and because, as to local matters, all persons living in the neigh- 
 borhood and interested in them are likely to be conversant, 
 and thus a trustworthy reputation may arise from the concur- 
 rence of many unconnected with each other and interested in 
 investigating the truth.' Thus, upon any issue as to the exist- 
 ence of a public and general right, the statements of persons 
 who were interested in such right and have since died are ad- 
 missible in evidence, although based upon hearsay and tradition 
 of others who came before them and were also interested, pro- 
 vided that such statements are an expression of the common 
 opinion and report of those concerned in the matter ; that they 
 state a general conclusion and not a particular fact, and that 
 they were made before the controversy arose in which it is 
 sought to make use of them. This exception, therefore, in- 
 volves the admission of hearsay to any number of degrees; not 
 only does the witness who brings the evidence into court state 
 -that which another person, the declarant, has said, but the 
 declarant's own statement must also embody not his own in- 
 dividual knowledge or belief alone, but also the concurring 
 
 U Greenl. Ev., §§ 137-140 ; School Thompson, 15 Wall. 151; Curtis v, 
 
 District v. Williams, 48 Conn. 504; Aaronson, 49 N. J. 68; Hunnicut v. 
 
 EUicott T. Pearl, 10 Pet 412; McCall Peyton, 103 U. S. 333, 362, 363; Wen- 
 
 V. United States, 1 Dak. 320. dell v. Abbott, 45 N. H. 349 ; Hill v. 
 
 2 Buchanan v. Moore, 10 S. & E. Proctor, 10 W. Va. 59 ; Clements v. 
 
 275 ; Flagg v. Mawson, 8 Gray, 556. Kyles, 18 Gvatt 468, 477 ; Abiugton 
 
 sSpeer v. Coate, 3 McCord, 237; v. North Bridgewater, 23 Pick. 170; 
 
 Bethea v. Byrd, 95 N. C. 309 ; Hills v. Scroggin v. Dalrymple, 7 Jones (N. C), 
 
 Ludwig, 46 Ohio St. 373 ; Tucker v. L. 46. 
 Smith, 68 Tex. 473. 5 1 Greenl. Ev., § 128 ; Rex v. Bed- 
 
 n Greenl. Ev., § 138; Shutte v. fordshiro, 4 E. & B. 541. 
 
HEARSAY EVIDENCE. ilT 
 
 opinions of others similarly interested to himself; and these 
 opinions in their turn may be based in part on earlier tradi- 
 tions extending back through any number of generations. 
 This is what is understood in this connection by the term "rep- 
 utation;" the common hearsay of those interested in handing 
 down from one to another the tradition of a right, the origin 
 of which can no longer be proved by direct oral evidence.^ 
 Such evidence is of course equally admissible to aflBrm or to re- 
 fute an alleged right of this description.^ 
 
 Public rights are those in which all the subjects of the gov- 
 ernment are interested, as, for instance, rights of highway;' 
 of taking tolls on the highway;* of landing on a river bank;' 
 of using ports, ferries and the like. General rights are those 
 in which some class of the community has common interest, 
 as, for example, those which are based on the customs of man- 
 ors,^ parishes'' or cities,' or which are connected with the 
 boundaries of counties,' hamlets '" and manors, or the ancient 
 division of manors.^^ 
 
 When it is said that the persons from whom the reputation 
 proceeds must be interested, this means that they must be 
 either entitled to enjoy or liable to submit to the right in 
 question, or that they must be so situated that their material 
 interests may be affected by its exercise, or that in some other 
 respect they are so concerned with such right that it may be 
 presumed that they had both the means and the motive for 
 giving a true account of the matter.'^ 
 
 Should the declaration express merely the declarant's own 
 opinion, it would obviously not comply with the definition of 
 reputation. In order to do this it should not only be the dec- 
 laration of one of the members of that body whose common 
 
 1 Higham v. Ridgway, 10 East, 109, "• Berry v. Banner, Pea. 156. 
 
 120. 8 Layborn v. Crisp, 4 M. & W. 330. 
 
 2 Drinkwater v. Porter, 7 C. & P. 9 Evans v. Bees, 10 A. & E. 151. 
 181. 10 Thomas v. Jenkins, 6 A. & E. 535. 
 
 a Read v. Jackson, 1 East, 355; R. "Barnes v. Mawson, 1 M. & S. 77. 
 V. Bliss, 7 A. & E. 550. 12 Newcastle v. Broxtowe, 4 B. & Ad. 
 
 * Brett V. Beals, M. & M. 416. 373 ; Crease v. Barrett, 1 C, M. & R. 
 
 s Drinkwater v. Porter, 7 C. & P. 919, 929, 930 ; R. v. Bedfordshire, 4 E. 
 181. & B. 535, 543. 
 
 « Doe V. Slisson, 13 East, 62 ; Crease 
 V. Barrett, 1 C, M. & R. 931. 
 37 
 
418 EULES OF EVIDENCE. 
 
 opinion makes the reputation current in their day, but should 
 also express the concurrent opinion of himself and all others 
 who are similarly interested. But if the declarant's circum- 
 stances were such that he was apparently competent to testify 
 as to what the common report upon the subject was, it will 
 be presumed, till the contrary is shown, that his utterance was 
 an expression of opinion common both to himself and others. 
 For if the mere possibility that the deceased person's inference 
 might proceed from some defective premises were sufBcietit 
 to exclude it, this head of evidence would be entirely put an 
 end to.^ 
 
 Not only must the declaration express the common report 
 as opposed to an individual opinion, but this common report 
 or reputation must assert not particular or individual facts 
 tending to prove or disprove the right, but a general conclu- 
 sion as to the existence of the right itself; it must be a gen- 
 eral verdict not onh' of all the persons, but also as to the gen- 
 eral effect of all the facts.^ 
 
 It is necessary to the admissibility of declarations of this 
 description that they should be made, like those admitted 
 in pedigree cases, before the dispute has arisen in regard to 
 which they are tendered in evidence.' And by dispute is meant 
 not the litigation, but the controversy from which it origi- 
 nated.* The declaration in such cases will not be the less inad- 
 missible because the declarant was unaware of the contro- 
 versy.' But the litigation to have this effect must be upon 
 the precise point to which the declaration refers. It will not 
 be sufficient that it was merely closely connected with it.* 
 
 Declarations of this description may be either oral,' as state- 
 ments made in course of a perambulation of boundaries,^ or 
 written, and if in writing, in any form, as, for instance, written 
 resolutions passed at a public meeting," statements contained in 
 
 IR. V. Bedfordshire, 4 E. & B. 535, ^Id. 
 
 544. 6 Newcastle v. Broxtowe, 4 B. & Ad. 
 
 2 Berkeley Peerage, 4 Camp. 401, 273, 280 ; Freeman v. Phillips, 4 M. & 
 415. S. 486. 
 
 3 R. V. Cotton, 3 Camp. 444 ; Berk- ' Thomas v. Jenkins, 6 A. & E. 525. 
 eley Peerage, 4 Camp. 401, 416; Rich- s Weeks v. Sparke, 1 M. & S. 679, 
 ards V. Bassett, 10 B. & C. 657. 689 ; Woolway v. Rowe, 1 A. & E. 114 
 
 4 Berkeley Peerage, 4 Camp. 401, ^Barraclough v. Johnson, 8 A. &: 
 417. E. 99. 
 
HEAESAT EVIDENCE. 419 
 
 deeds,' or in orders of sessions,' or contained in the recitals of 
 private acts of the legislature,' and even in maps, if it can be 
 satisfactorily shown that they were made or adopted by such 
 persons and under such circumstances as to bring them within 
 the terras of the rule.* 
 
 The best way to prove ancient rights is to prove particular 
 acts and usage as far back as living memory goes, and then 
 adduce evidence of reputation in regard to the preceding time.^ 
 It is not, however, essential to the admissibility of reputation 
 that there should be any evidence of modern user; the. absence 
 of it only affects the weight, not the admissibility of such evi- 
 dence.* 
 
 It is well settled that whenever evidence of reputation in 
 the ordinary sense is admissible, evidence may likewise be 
 given of previous verdicts or judgments between persons .who 
 stand in pari ju?'e or in codem jure; that is to say, persons who 
 had the same relative interests as the present parties, and be- 
 tween whom the same public general right was contested and 
 decided.'' 
 
 §4. Public and general — Distinction between. — Aright 
 is public if it is common to all citizens; and declarations as to 
 pubho rights, if they were made before the question in rela- 
 tion to which they are to be proved has arisen, are competent, 
 whoever made them.^ Mr. Greenleaf says: "The terms 'pub- 
 lic' and 'general' are sometimes used as synonymous, meaning 
 merely that which concerns a multitude of persons.' But in 
 regard to the admissibility of hearsay testimony, a distinction 
 has been taken between them; the term 'public' being strictly 
 applied to that which concerns all the citizens and every mem- 
 ber of the state, and the term ' general ' being referred to a 
 lesser though still a large portion of the community." " " In 
 
 1 Brett V. Beales, M. & M. 416 ; Plax- « Crease v. Barrett, 1 C, M. & E. 91 J>, 
 ton V. Dare, 10 B. & C. 17. 930 ; Dunraven v. Llewellyn, 15 Q. B. 
 
 2 Newcastle v. Broxtowe, 4 B. & Ad. 791, 804 
 
 273. ' Pim V. Currell, 6 M. & W. 234, 26G ; 
 
 s Carnavon v. Villebois, 13 M. & W. Briscoe y. Lomax, 8 A. & E. 198, 314 ; 
 
 313. Freeman v. Phillips, 4 M. & S. 486. 
 
 < E. V. Milton, 1 C. & K. 58 ; Pollard 8 1 Greenl. Ev., § 138. 
 
 V. Scott, Pea. 17 ; Hammond v. Brad- « Pim v. Currell, Q M. & W. 234. 
 
 street, 10 Ex. 390. '» 1 Greenl. Ev., § 128. 
 
 ^Anglesea v. Hatherton, 10 M. & W. 
 218, 339. 
 
420 KULES OF EVIDENCE. 
 
 matters of public interest all persons must be presumed con- 
 versant, on the principle that individuals are presumed to be 
 conversant in their own affairs; and as common rights are 
 naturally talked in the community, what is thus dropped in 
 conversation may be presumed to be true. It is the prevailing 
 current of assertion that is resorted to as evidence ; for it is to 
 this that every member of the community is supposed to be 
 privy and to contribute his share. In matters strictly pub- 
 lic, — such, for example, as a claim of highway or a right of 
 ferry, — reputation from any one appears to be receivable. If, 
 however, the right in dispute be simply general — that is, if 
 those only who live in a particular district are interested in 
 it, — hearsay from persons wholly unconnected with the place 
 of business would be not only of no value, but probably alto- 
 gether inadmissible. Evidence of common reputation is there- 
 fore received in regard to public facts on grounds similar to 
 that on which public documents not judicial are admitted; 
 namely, the interest which all have in their truth and the con- 
 sequent probability that they are true."^ Thus, where many 
 persons have a right of common in land, evidence of reputa- 
 tion as to the rights of one is admissible, provided it is derived 
 from persons conversant with the neighborhood. Mr. Green- 
 leaf says: "It appears, therefore, that competent knowledge 
 in the declarant is, in all cases, an essential prerequisite to the 
 admission of his testimony; and that though all the citizens 
 are presumed to have that knowledge in gome degree, where 
 the matter is of public concernment, yet in other matters, 
 of interest to many persons, some particular evidence of such 
 knowledge is required." ^ 
 
 § 5. What matters involve public or general interest. — 
 Hearsay has been admitted where the question related to a 
 right of common;^ a parochial;* a manorial custom;' a cus- 
 tom of mining in a particular district — the limits of a town;" 
 the boundaries between counties, parishes, hamlets or manors;'' 
 or between old and new land in a manor;* a claim of tolls on 
 a public road, the fact whether a road was public or private;' 
 
 1 1 Starkie, Ev,, § 195. ^Davies v. Morgan, 1 C. & J. 587. 
 
 n Greenl. Ev., g 139. TNichoUs v. Parker, 14 East, 331, 
 
 3 Weeks v. Sparke, 1 M. & S. 679. 8 Barnes v. Mawson, 1 M. & S. 81. 
 
 ^Mosely v. Davies, 11 Price, 162. 9 Rex v. Bliss, 7 Ad. & El. 555. 
 5 Doe V, Sisson, 13 East, 63, 
 
HEARSAY EVIDENCE. 421 
 
 a prescriptive liability to repair sea-walls ^ or bridges ; ^ a claim 
 of highway ; ' the fact whether land on a river was a public 
 landing-place or not;^ the jurisdiction of a court; or the exist- 
 ence of a manor.* But while general reputation is evidence, the 
 tradition of a particular fact is not. In order to admit repu- 
 tation it is not necessary that the user should be shown, but 
 such evidence without user is entitled to but little weight. 
 
 § 6. Rights must be ancient and declarants dead. — State- 
 ments as to matters of general public history made in accred- 
 ited historical books — by authors deceased or out of the reach 
 of process of court — are held to be competent when the occur- 
 rence of any such matter is in issue or relevant to the issue. 
 A party relying upon historical facts must produce some evi- 
 dence thereof to the jury. It seems that no historical work 
 can bo read in evidence while its author is living and might bo 
 called as a witness. A local history, it seems, is not admissible 
 evidence. To warrant its introduction it must relate to such 
 facts as are of a public nature and of interest to the whole 
 state.^ A public and a general history is receivable in evidence 
 to prove a matter relating to the country at large;' probably 
 for the same reason that the law permits matters of public and 
 general interest to be proved by the declarations of deceased 
 persons, who may be presumed to have had competent knowl- 
 edge on the subject, or by old documents which under ordi- 
 nary circumstances would be rejected for want of originality, 
 although there are cases to be found in the books where his- 
 tories have been received in evidence and which it might be 
 difficult to support on this principle.* But a history is not re- 
 ceivable to prove a private right or particular custom.' In a 
 recent case^" it was held by the court of exchequer that counsel 
 or a party at a trial may refer to matters of general history, 
 provided the license be exercised with prudence, but cannot 
 refer to particular books of history, or read particular passages 
 
 1 Rex V. Leigh, 10 Ad. & El. 398. '' B. N. P. 248 ; 3 Phill. Ev. 155 (10th 
 
 2 Rex V. Sutton, 8 A. & E. 516. ed.) ; Tay 1. Ev., § 1585 (4th ed.). ' 
 SReedv. Jackson, 1 East, 355. 3 2 Phill. Ev. 155, 156 (10th ed.) ; 
 * Drinkwater v. Porter, 7 C. & P. Tayl. Ev., § 1585 (4th ed.). 
 
 181. 9 3 Phill. Ev. 155 (10th ed.); Tayl. 
 
 'Steel V. Prickett, 2 Stark. 466. Ev., § 1585 (4th ed.). 
 
 « McKinnon v. Bliss, 31 N. Y. 306. w Darby v. Ouseley, 3 Jur. (N. S.) 497, 
 
 1 H. & N. 1. 
 
422 EULES OF EVIDENCE. 
 
 from them, to prove any fact relevant to the cause. Also that 
 works of standard authority in literature may, provided the 
 privilege be not abused, be referred to by counsel or a party 
 at trial, in order to show the general course of composition, 
 explain the sense in which words are used, and matters of a 
 like nature, but that they cannot be resorted to for the pur- 
 pose of proving facts relevant to the cause. Eeputation, tradi- 
 tion, or hearsay, as it may properly be called, is from necessity 
 admissible to prove historical facts of former ages, about which 
 no contemporaneous living person can testify. Mr. Greenleaf 
 says: "The law allows them to be proved by general reputa- 
 tion ; that is, by the declarations of deceased persons, who may 
 be presumed to have competent knowledge on the subject.^ It 
 is to be observed that the exception we are now considering 
 is admitted only in the case of ancient rights, and in respect 
 to the declarations of persons supposed to be dead." * It is 
 required by the nature of the rights in question ; their origin 
 being generally antecedent to the time of legal memory, and 
 incapable of direct proof by living witnesses both from this 
 fact and from the undefined generality of their nature. 
 
 § 7. Ante litem motam. — Mr. Greenleaf says: "Another 
 important qualification in the admission of reputation is that 
 the declaration so received must have been made before any 
 controversy arose touching the matter to which it relates; 
 as it is usually expressed, ante litem motam. The ground on 
 which such evidence is admitted at all is, that the declarations 
 ' are the natural effusion of a party, who must know the truth, 
 and who speaks without any temptation to exceed or fall 
 short of the truth." But no man is presumed to be thus in- 
 different in regard to matters in actual controversy; for when 
 the contest has begun, people generally take part on the one 
 side or the other; their minds are in a ferment, and, if they 
 are disposed to speak the truth, facts are seen by them through 
 a false medium; consequently all ex parte statements, whether 
 under oath or not, are rejected if they were made subsequently 
 to the date of the controversy." ^ 
 
 » Crease v. Barrett, 1 C, M. & R s 1 Greenl. Ev., § 131 ; Whitelooke 
 919. V. Baker, 13 Ves. 514 ; Taylor on Ev., 
 
 n Greenl. Ev., § 130; Davis v. §628. 
 Fuller, 12 Vt. 178. < 1 Greenl. Ev., § 131 ; Richards v. 
 
 Bassett, 10 B. & C. 160. 
 
HEARSAY EVIDENCE. 423 
 
 §8. Lis mota — What is.— Mr. Greenleaf says: "The lis 
 mota, in the sense of our law, carries with it the further idea 
 of a controversy upon the same particular subject in issue. 
 For, if the matter under discussion at the time of trial was 
 not in controversy at the time to which the declarations offered 
 in evidence relate, they are admissible, notwithstanding a con- 
 troversy did exist upon some other branch of the general sub- 
 ject.' The value of general reputation as evidence of the true 
 state of facts depends upon its being the concurrent belief of 
 minds unbiased and in a situation favorable to a knowledge 
 of the truth, and referring to a period when this fountain of 
 evidence was not rendered turbid by agitation. But the dis- 
 cussion of other topics, however similar in their general nature, 
 at the time referred to, does not necessarily lead to the infer- 
 ence that the particular point in issue was also controverted, 
 and therefore is not deemed suflBcient to exclude the sort of 
 proof we are now considering." ^ 
 
 § 9. Declarations post litem motam. — Mr. Greenleaf says : 
 " Declarations made after the controversy has originated are 
 excluded, even though proof is offered that the existence of 
 the controversy was not known to the declarant. The ques- 
 tion of his ignorance or knowledge of this fact is one which 
 the courts will not try; partly because of the danger of an 
 erroneous decision of the principal fact by the jury, from the 
 raising of many collateral issues, thereby introducing great 
 confusion into the cause ; and partly from the f ruitlessness of 
 the inquiry, it being from its very nature impossible in most 
 cases to prove that the existence of the controversy was not 
 known. The declarant in this case is always absent and gen- 
 erally dead." ' 
 
 § 10. Witness need not specify from whom he heard. — 
 Mr. Greenleaf says : "Where evidence of reputation is admit- 
 ted, in cases of public or general interest, it is not necessary 
 that the witness should be able to specify from whom he heard 
 the declaration. For that, in the much greater number of 
 oases, would be impossible." * 
 
 1 1 Greenl. Ev., § 163. s 1 Greenl. Ev., § 133. 
 
 2 Id. ; freeman v. Phillip, 4 M. & S. n Greenl Ev., § 135. 
 486. 
 
42J: BULKS OF EVIDENCE. 
 
 § 11. What matters not admissible as hearsay. — Eeputa- 
 tion is not admissible to show: What were the boundaries be- 
 tween two private estates;' or whether a party had a private 
 right of way over a particular field ;^ whether the plaintiff 
 was exclusive owner of the soil, or had a right of common 
 only.^ The want of competent knowledge in the declarant is 
 the reason assigned for rejecting evidence of reputation of 
 common fame in mere matters of private right. Evidence of 
 general reputation, upon general points, is receivable, because, 
 all mankind being interested therein, it is natural to suppose 
 that they may be conversant with the subjects, and that they 
 should discourse together about them, having all the same 
 means of information. 
 
 § 12. Particular facts. — Declarations as to particular facts 
 from which the existence of any public or general right or cus- 
 tom, or matter of public or general interest, may be inferred, 
 are not competent. Thus, reputation as to particular facts is 
 inadmissible. The question of the admissibility of this sort of 
 evidence turns upon the nature of the reputed fact — whether 
 it was interesting to one party only, or to many. But if it 
 had no connection with the exercise of any public right, nor 
 the discharge of any public duty, nor with any other matter 
 of general interest, it falls within the general rule by which 
 hearsay evidence is excluded. 
 
 § 13. Maps^ documents, etc. — Documentary and all other 
 kinds of proof denominated hearsay are admissible, as the 
 medium of proving traditionary reputation in matters of pub- 
 lic and general interest. Mr. Greenleaf says: "If the matter 
 in controversy is ancient and not susceptible of better evi- 
 dence, any proof in the nature of traditionary declarations is 
 receivable, whether it be oral or written, subject to the quali- 
 fication above stated. Thus, deeds, leases and other private 
 documents are admitted as declaratory of the public matters 
 recited in them.* Maps also showing the boundaries of towns 
 and parishes are admissible, if it appear that they have been 
 made by persons having adequate knowledge." ' So they are 
 
 1 Clothier V. Chapman, 14 East, 331. sj Greenl. Ev., g 139; Noyes; v. 
 
 2 Blockett V. Lowes, 3 M. & S, 494. White, 19 Conn. 250 ; Auera v. Wat- 
 
 3 Richards v. Bassett, 10 B. & C. 663. son, 137 U. S. 584; Hargro v. Hodg- 
 < Claxton V. Dare, 10 B. & C. 17. don, 89 Cal. 623, 
 
HEARSAY EVIDENCE. 425 
 
 of private premises.' A map one hundred years old, made by 
 the official survej'or' through a farm, is evidence of the width 
 of the highway through the adjacent farm;^ so are plans of 
 the premises properly identified;^ so is an unrecorded plan, 
 referred to in a recorded deed, when properly identified;* so 
 is an unrecorded plat of an addition to prove location and 
 identity.' Field-notes are admissible to locate a beginning cor- 
 ner.* Maps or plats of premises alleged to have been damaged, 
 identified by witnesses and shown to be substantially correct, 
 are properly submitted to the jury to be considered in connec- 
 tion with other evidence.'' So is a rough-draft sketch of prop- 
 erty injured, made by a witness testifying in relation to the 
 condition and situation of the property after the injury.^ 
 
 III. HEAESAT AS TO FACTS OF FAMILY HISTOEY. 
 
 § 14. In general. — Mr. Stephen, in his Digest of the Law 
 of Evidence,' says : "As a general rule, where pedigree is di- 
 rectly in issue, the declarations of a person shown to be legiti- 
 mately related by blood to the person to whom they relate, 
 or by the husband or wife of such person, if made before the 
 question in relation to which they are to be proved has arisen, 
 are relevant as to the existence of any relationship between 
 persons, whether living or dead, or to the birth, marriage or 
 death of any person by which such relationship was consti- 
 tuted, or to the time or place at which any fact occurred, or 
 to any fact immediately connected with its occurrence. Such 
 declarations may express either the personal knowledge of the 
 declarant, or information given to him by other persons quali- 
 fied to be declarants. They may be made in any form, and in 
 any document, or upon anything in which statements as to re- 
 lationship are commonly made." 
 
 Hearsay evidence is admitted to prove facts of family his- 
 
 1 Rowland v. McCown, 20 Oreg. 538. " Irvin v. Bevil, 80 Tex. 333. 
 
 ^Blaokman v. Eeilly, 53 N. Y. State 7 Kankakee & S. R. Co. v. Horan, 
 
 Rep. 865, 138 N. Y. 818; Chicago, M. 131 111. 288; Culbertson v. Holliday, 
 
 & St Paul R. Co. V. McArthur, 53 Fed. 50 Neb. 329. 
 
 Eep. 464. sBrovvn v. Galesburg, P. B. & T. 
 
 SMcVey v. Durkin, 136 Pa. St. 418. Co., 132 111. 648; Griffith v. Rife, 72 
 
 <"Weld V. Brooks, 152 Masa. 397. Tex. 185. 
 
 'Lute V. Compton, 77 Wis. 587; 9 Art 31. 
 Atwood V. Oanrike, 86 Mich. 99 ; Reed 
 V. Murry (Cal.), 34 Pac. Rep. 841. 
 
426 EULES OF EVIDBNCE. 
 
 tory upon the ground of necessity, and upon the obvious diffi- 
 culty of tracing descent and relationship of deceased mem- 
 bers of families by any other evidence. The law will receive 
 the natural effusions of a party who knew the truth, and who 
 spoke upon an occasion where his mind stood in an even posi- 
 tion, without any temptation to exceed or fall short of the 
 truth. The value of such evidence is enhanced in proportion 
 as it relates to long past occurrences, other evidence of which 
 is impaired or lost by lapse of tirae;^ in proportion, too, as it 
 consists of contemporaneous declarations or records formally 
 or solemnly made by persons naturally cognizant of the facts, 
 and who would have no motive to misrepresent ; ^ and in pro- 
 portion as those from whom it proceeded bore such relation 
 as created an interest to ascertain and perpetuate the truth ; ' 
 and, if consisting of an oral declaration, by the naturalness of 
 the circumstances which lead to its being made; and, if con- 
 sisting of records, in proportion as they have been public, open, 
 and well known to the family.* At best it is weak evidence.' 
 Any declarations, in order to be received, must have been made 
 ante litem motam, and after the death of the declarant.* 
 
 § 15. Facts that may be proved. — The facts of family his- 
 tory which may be proved by hearsay from proper sources 
 are : Eelationship generally,' its degree,' birth,' death," mar- 
 riage," issue or want of issue,^'^ livmg or survival," relative age 
 or seniority, name and the place of residence." 
 
 As a general rule, the date of a person's birth may be tes- 
 tified to by himself or by members of his family, although 
 they know the fact only by hearsay based on family tradi- 
 tion.'' The declarations of a deceased person as to the geneal- 
 
 1 Stouvenal v. Stephens, 26 How. Pr. » American L. Ins. Co. v. Eosenagle, 
 (N. Y.) 244 ; Byers v. Wallace, 87 Tex. 77 Pa. St. 507. 
 
 503. 10 Masons v. Fuller, 45 Vt 29. 
 
 2 CaujoUe v. Ferrie, 23 N. Y. 90-94. n CaujoUe v. Feme, 23 N. Y. 90 ; 
 s Walker v. Wingfield, 18 Ves. 511. Eisenlord v. Clum, 126 id. 552, 38 N. Y. 
 4 North Brookfield v. Warren, 16 State Rep. 446, 44 Alb. L. J. 66; Bell 
 
 Gray, 174. v. Bumstead, 60 Hun, 580, 88 N. Y. 
 
 SMorewood v. Wood, 14 East, 330. State Rep. 393. 
 
 6 Hodges V. Hodges, 106 N. C. 374; 12 People v. Fulton F. In& Co., 25 
 
 State V. Parker, id. 711. Wend. 208. 
 
 ' Backdahl v. Grand Lodge A. O. " Johnson v. Pembroke, 11 East, 504. 
 U. W., 46 Minn. 61 ; Louder v. Schlu- " Cuddy v. Brown, 78 111. 415. 
 ter, 78 Tex. 103. isHoulton v. Manteufel, 51 Minn. 
 
 6 Ewbb V. Richardson, 42 Vt 465. 185. 
 
HEAESAT EVIDENCE. 427 
 
 ogy of a family, relating to events which occurred in a foreign 
 country, are admissible in evidence, after so great a lapse of 
 time that strict proof cannot be adduced, upon slight proof 
 that the declarants were members of a family to which their 
 declarations relate.^ In an action by one claiming to be the 
 son of a decedent to recover lands left by such decedent, the 
 plaintiff may show by witnesses that such decedent had said 
 that he was married and had a wife, and named plaintiff's 
 mother, and that he had an heir — a son. It seems that if the 
 alleged declaration of marriage was made before the plaintiff's 
 birth it would tend to prove plaintiff's legitimacy. The excep- 
 tion regarding the admission of hearsay evidence in case of 
 pedigree is not confined to ancient facts, but extends also to 
 matters of pedigree which have recently transpired ; and the 
 hearsay as to deceased witnesses is admitted as to facts which 
 have occurred in the presence of living witnesses.^ 
 
 § 16. By whose declarations proved. — The hearsay must 
 be from persons having such a connection by blood or mar- 
 riage with the party to whom it relates that it is natural and 
 likely from their domestic habits and connections that they 
 are speaking the truth and are not mistaken. It must ap- 
 pear that the declarant or source of the witness' informa- 
 tion was a deceased member of the familj"^, legally related by 
 blood or marriage to the family whose history the fact con- 
 cerns.' But in Backdahl v. Grand Lodge A. O. TJ. W* it is 
 held that relationship may be proved by one acquainted with 
 the family and who knows that the person was recognized 
 by it as a relative. The general rule, however, is that the 
 witness must name the source of information,' and show 
 affirmatively that it was a relative or connection,* who is since 
 deceased.' It is enough to show that the declarant was con- 
 nected with the family, without proving him to be a connec- 
 tion of the person whose connection with the family is to be 
 established.' And conversely, relationship of the declarant 
 
 iRe Eobb's Estate, 37 S. C. 19. sgcott v. Ratliflfe, 5 Pet. 81. 
 
 '^ Eisenlord v. Clum et al., 126 N. Y. * Chapman v. Chapman, 2 Conn. 
 
 552, 38 N. y. State Rep. 452. 347; Waldron v. Tuttle, 4 N. H. 371. 
 
 3 Emerson v. White, 29 N. H. 491; 'Greenlief v. Dubuque, eto. R. R. 
 
 1 Taylor on Ev., §§ 569-571 ; Doe v. Co., 30 Iowa, 301. 
 
 Randall, 2 Moore & P. 20. ^Monkton v. Attorney-General, 3 
 
 M6 Minn. 61. Euss. & M. 156, 
 
428 EULES OF EYinENCE. 
 
 with the particular person is sufficient to admit his declara- 
 tions of the relationship of that person to the family. But 
 his relationship to one or the other must be established by 
 other evidence than the declarations themselves.' This is a 
 preliminary question for the judge ;^ and slight evidence that 
 the declarant was connected, "even without showing the pre- 
 cise degree of relationship, seems to be sufficient.' Thus, to 
 prove a marriage for the purpose of legitimating the issue 
 as heirs of the alleged husband, evidence of a declaration of a 
 relative of the woman is not competent in the first instance, 
 because the declarant must first be shown to be connected with 
 the family of the man.* Where the whole evidence is tradi- 
 tionary, when it consists entirely of family reputation or state- 
 ments of declarations made by persons who died long ago, it 
 must be taken with such allowance and also with such sus- 
 picions as ought reasonably to be attached to it. To prove who 
 was the mother of the child, the declarations of a father in 
 reference thereto may be received.' So, too, the declarations 
 of a mother in reference to the paternity of her son may be 
 given in evidence;* so the declarations of any deceased person 
 as to whom were his or her heirs.' A man's declarations that 
 he is married and that a certain child is his son and heir, al- 
 though not admissible to prove marriage as part of the res 
 gestcB, when he never lived or cohabited with the alleged wife 
 and never had anything to do with her son, are admissible as 
 hearsay evidence concerning pedigree on the question of the 
 legitimacy of the son.' Declarations of a deceased person are 
 admissible to prove the relationship of such person to another 
 who is also deceased.' A minor may testify to his own age 
 according to the reputation in the family.'" But testimony of 
 one as to the age of another upon information from the latter's 
 sister is inadmissible where it is not shown that the sister is 
 
 1 Blackburn v. Crawford, 3 "Wall. « CaujoUe v. Ferrie, 26 Barb. 177. 
 
 187. 'Moffit V. Witherspoon, 10 Ired. 
 
 ^ Doe V. Davis, 10 Q. B. 333. (N. C.) 185. 
 
 3 1 Taylor on Ev., § 573. SEisenlord v. Clum, 126 N. Y. 553, 
 
 * Blackburn v. Crawford, 3 Wall. 38 N. Y. State Rep. 446 ; Bell v. Bum- 
 
 187; Flora v. Anderson, 75 Fed. Rep. stead, id. 393, 60 Hun, 580. 
 
 217. 9 Louder v. Schluter, 78 Tex. 103. 
 
 » United States v. Saunders, 1 '" State v. Best, 108 N. C. 747. 
 Humph. (Tenn.) 483; Re Hurlberts' 
 Estate, 68 Vt. 366. 
 
HEARSAY EVIDENCE. 429 
 
 dead;' it must also first affirmatively appear that the decla- 
 ration was made ante litem motam? 
 
 Since the proof of a particular relationship often depends 
 on the proof of some specific fact, such as the date of some 
 particular birth, marriage or death, or some incident connected 
 therewith, or the place of residence of some particular person 
 or family, these facts are also regarded as matters of pedigree 
 within the meaning of the rule when they thus tend to prove 
 a relationship which is in question.' In an administration ac- 
 tion the question was whether two children were legitimate. 
 Declarations contained in lettfers of their reputed father, since 
 deceased, stating their exact ages and thereby making it clear 
 that they must have been born before the date of his marriage, 
 were admitted to prove their illegitimacy.* So declarations 
 have been admitted to prove that a person of a particular 
 name was resident in a particular place, when that fact was 
 relevant for the purpose of proving a step in a genealogy;^ 
 and in an action for goods sold and delivered, to which the de- 
 fense of infancy was pleaded, the date of the defendant's birth 
 being in question, it was held that a declaration made by his 
 deceased father was not admissible in evidence;" and declara- 
 tions tending to prove the place of birth have been rejected 
 on the same grounds.'' 
 
 Before a declaration tending to prove relationship, between 
 two persons can be given in evidence, it is necessary to prove 
 by some means other than the declaration itself that the de- 
 clarant is related to one of those two persons, since otherwise it 
 would be possible for a stranger, by merely claiming alliance 
 with a family, to put himself in a position to affect the rights 
 of its members.^ But it is not necessary to prove that he is 
 
 1 State V. Parker, 106 N. C. 711; commented on In Haines v. Guthrie, 
 Jennings v. Webb, 8 D. C. App. 43. 13 Q. B. D. 818, 823. 
 
 2 Hodges V. Hodges, 106 N. C. 374. 5 Rishton v. Nesbit, 8 Moo. & Rob. 
 But see Eisenlord v. Glum et al, 38 554 ; Shields v. Boucher, 1 De G. & 
 N. Y. State Rep. 452. Sm. 40. 
 
 3 Monckton v. Attorney-General, 3 " Haines v. Gutlirie, 13 Q. B. D. 818 ; 
 Euss. & My). 147, 156 ; Betty v. Nail, Pigge v. Wedderburn, 6 Jur. 218. 
 
 7 Ir. C. L. 17. 7 R. v. Erith, 8 East, 539. 
 
 * Re Turner, 29 Ch. D. 985 ; Kidney 8 Monckton v. Attorney-General, 2 
 
 V. Cookburn, 2 Russ. & My. 167 ; Her- Russ. & Myl. 147 ; Doe v. Randall, 3 
 
 bert V. Tuckal, T. Raym. 84, cited in Moo. & P. 20, 34. 
 Roe V. Rawlings, 7 East, 379, 290, and 
 
430 EULES OF EVIDENCE. 
 
 related to both of them, for this would involve the absurdity 
 of requiring proof of the very question in issue as a prelim- 
 inary to giving the evidence which is tendered to prove it.' 
 The relationship of the declarant which has thus to be proved 
 must be a legitimate one, but there is no limit as to its re- 
 moteness; and for the purpose of this rule, husband and wife 
 are deemed to be related to each other.'^ Hence, the husband 
 is a competent declarant in regard to his wife's family,' and 
 the wife in like manner in regard to her husband's;* but the 
 rule excludes the declarations not only of those who are con- 
 nected by illegitimate ties with the family to which the declar- 
 ant relates,' but also friends or dependents, however intimate.^ 
 The preliminary proof of this relationship must be such as to 
 satisfy the judge on whose decision the admissibility of the 
 evidence depends, and will not necessarily be of such a strict 
 character as would be requisite for the proof of a fact in issue. 
 It has always been held that the declarations of a deceased 
 father or mother are admissible to prove the legitimacy or 
 illegitimacy of their children (provided that they do not con- 
 travene the rule which prohibits on grounds of public policy 
 their giving evidence of non-access after marriage), as, for in- 
 stance, by proving that the children were born before the date 
 of the marriage,' or by disproving the existence of any mar- 
 riage at all.' In like manner declarations have been adn^ilted' 
 to prove that a particular person is the sister of the declarant.' 
 In this case it was expressly held that no evidence could be 
 necessary to connect the declarant with her own family. It 
 will be noticed that this decision involves the admissibility of 
 declarations as to the marriage of the declarant's parents and 
 the declarant's own legitimacy. So declarations have been 
 admitted to prove that the declarant himself is illegitimate and 
 has no relatives whatever, without apparently any preliminary 
 
 iMonckton v. Attorney-General, 2 6 Doe v. Barton, 3 Moo. & Rob. 28. 
 
 EusR. & Myl. 147, 156, 157. 6 Johnson v. Lawson, 8 Bing. 86. 
 
 2 Davies v. Lowndes, 7 So. N. S. 141, 'ttoodright v. Moss, 2 Cowp. 591 ; 
 181 ; Shrewsbury Peerage, 7 H. L. Ee Turner, 29 Ch. D. 985. 
 
 1,23. SMurray V. Milner, 12Ch. D. 845. 
 
 3 Doe V. Harvey, Ey. & Moo. 297; 9 Smith v. Tebbitt, L. E. 1 P. & D. 
 Vowles V. Young, 13 Ves. 140. 354. 
 
 * Shrewsbury Peerage, 7 H. L. 1, 
 23, 26. 
 
HEAESAT EVIDENCE. 431 
 
 proof being required as a condition of admitting the declara- 
 tion.' 
 
 On the other hand, there are several cases in which, perhaps 
 sometimes without discussion as to the necessity of such pre- 
 liminary evidence, the court has clearly proceeded on the as- 
 sumption that, in some cases at any rate, before a declaration 
 is admissible to prove the relationship of some other person to 
 the declarant, preliminary evidence thereof, independent of the 
 declaration itself, must first be given. Thus, it has been held 
 that a declaration as to the declarant's own legitimacy is ad- 
 missible after ^ovae jprima facie evidence of that fact has first 
 been given, and that it is no objection to the preliminary decis- 
 ion by the judge of this question that it is the very question 
 in issue in the case.^ So it has been held that a declaration to 
 the effect that the declarant was legally married is not ad- 
 missible until some preliminary proof of the marriage has been 
 given.' 
 
 The declaration must have been made ante litem motam} 
 The mere existence of the situation out of which the dispute 
 subsequently arises does not render a declaration inadmissible, 
 nor, on the other hand, is actual litigation necessary to exclude 
 it; but so soon as a controversy has actually arisen which 
 would naturall}'^ create a bias in the mind of one standing in 
 the relation of the declarant, all subsequent declarations become 
 inadmissible.' 
 
 It is immaterial whether the declarant is or is not aware 
 of the controversy.* But declarations made before any dis- 
 pute has arisen, although with tne express view of precluding 
 controversy, are not on that account inadmissible.' Hence 
 it has been held that all depositions made for the purpose of 
 another suit are inadmissible if the same point was in issue,* 
 
 >Proc.-Gen. v. Williams, 31 L. J. P. sgheddon v. Attorney -General, 30 
 
 M. & A. 157. L. J. P. M. & A. 317, 235. 
 
 2 Doe V. Davies, 10 Q. B. 314 ; Hitch- « Berkeley Peerage Case, 4 Camp, 
 
 ins V. Eardley, L. E. 3 P. & D. 248; 401, 417. 
 
 Berkeley Peerage Case, 4 Camp. 401, 'Id.; Goodright v. Moss, 2 Cowp. 
 
 403. 591. 
 
 ' Proc-Gen. v, Williams, 81 L. J. P. * Berkeley Peerage Case, 4 Camp. 
 
 M. & A. 157. 401, questioning Goodright v. Moss, 
 
 * Berkeley Peerage Case, 4 Camp. 2 Cowp. 591. 
 401; Monckton v. Attorney-General, 
 2 Euss. & MyL 147. 
 
432 
 
 EULES OF EVIDENCE. 
 
 but otherwise not.' The previous controversy, to render the 
 declaration inadmissible, must have been on precisely the same 
 point.^ 
 
 ' It is not necessary that the declarations should contain only 
 matters within the personal knowledge of the declarant. They 
 may be based on statements made to him by a relative who 
 has such personal knowledge,' or they may be based on tradi- 
 tion involving any number of degrees of hearsay, so long as it 
 is the tradition of deceased members of the family and not of 
 strangers.* It is not necessary that the declaration should 
 state with exactitude the degree of relationship ; its failure to 
 do so will affect its weight and not its admissibility.* JSTor that 
 the evidence should have any greater precision than the case 
 fairly admits of. 
 
 The form of declaration or the manner of its preservation 
 is immaterial.^ Thus, a. recital in a deed,' entries in a family 
 bible or other family record,' correspondence in the family and 
 even loose papers have been held admissible.' 
 
 Declarations are not admissible to establish pedigree or 
 matters collateral thereto in cases where pedigree itself is not 
 directly relevant.^** A wife's sister is not allowed to testify 
 
 1 Lyle V. EUwood, 19 Eq. 98. 
 
 '■i Shedden v. Attorney-General, 30 
 L. J. P. M. & A. 217, 236. 
 
 3 Doe V. Davies, 10 Q. B. 814. 
 
 * Goodright v. Moss, 3 Cowp. 591, 
 594 ; Whitelock v. Baker, 13 Ves. 511, 
 014; Monckton v. Attorney-General, 
 2 Euss. & Myl. 147, 164, 105. 
 
 5 Vowles V. Young, 13 Ves. 140, 147. 
 
 ^ Gaiues v. New Orleans, 6 Wall. 
 643 : Shuman Y. Shuman, 27 Pa. St 
 90 ; Pearson v. Pearson, 46 Cal. 609. 
 
 ' Jackson v. Corley, 8 Johns. 128 ; 
 Carter v. Tinicum Fishing Co., 77 Pa. 
 St. 310; Stokes v. Dawes, 4 Mason, 
 268; Brookfield v. Warren, 10 Gray, 
 171 ; State v. Patterson, 95 Mo. 525 ; 
 Eastman v. Martin, 19 N. H. 152. 
 
 8 Watson V. Brewster, 1 Pa. St. 381 ; 
 Whitcher v. McLaughlin, 115 Mass. 
 167. 
 
 9 Howard v. Russell, 75 Tex. 171 1 
 Swink V. French, 11 Lea, 78; State v. 
 
 Joest, 51 Ind. 287 ; Craufurd v. Black- 
 burn, 17 Md. 49; S. C, 3 Wall. 175; 
 North Brookfield v. Warren, 16 Gray, 
 171; Wise v. Wynn, 59 Miss. 588; 
 Dupont V. Davis, 30 Wis. 170; Kelly 
 V. McGuire, 15 Ark. 555 ; Anderson v. 
 Parker, 6 Cal. 197; Moffit v. Witlier- 
 spoou (Mo.), 10 Ired. L. 185; De 
 Haven v. De Haven, 77 Ind. 236; 
 Mason v. Fuller, 45 Vt 29 ; Cuddy v. 
 Brown, 78 111. 415 ; Jones v. Jones, 36 
 Md. 447, 457; Walker v. Murray, 5 
 Ont. Rep. 638; Walbridge v. Jones,' 
 33 Q. B. U. C. 613 ; Harland v. East- 
 man, 107 111. 535 ; Dupoyster v. Ga- 
 gani, 84 Ky. 403 ; Northrup v. Hale, 
 76 Me. 306 ; Gehr v. Fisher, 143 Pa. 
 St. 311 ; Fowler v. Simpson, 79 Tex. 
 611 ; Dawson v. Mayall, 45 Minn. 408 ; 
 Eiseulord v. Clum, 126 N. Y. 552. 
 
 1" Londonderry v. Andover, 28 Vt. 
 416; Union v. Plainfield, 39 Conn. 
 563; Independence v. Pompton, 3 
 
HEAESAY EVIDENCE. 433 
 
 concerning the pedigree of the husband's family.' The rule 
 does not extend to a trusted family servant.^ Keputation in 
 the family is equally admissible with direct statements by de- 
 ceased members.^ 
 
 § 17. Marriage.— The declarations of deceased members of 
 a family in reference to marriage are admissible ; but where 
 the marriage is essential to be established as a substantive 
 fact, it cannot be established by such declarations.^ In some 
 states, however, it is proper to prove the marriage of parties 
 by proving cohabitation.^ So it is competent to prove, by 
 the declarations of the parents of a child, whether they 
 were married when the child was born.* But such evidence 
 is not admissible to prove that children born in wedlock are 
 illegitimate by reason of non-access.'' Such evidence is admis- 
 sible to prove whom a man married or whom a woman mar- 
 ried, what children they had, and whether legitimate or ille- 
 gitimate.* 
 
 Marriage is a status which here and in most countries can 
 only be validly created by a contract executed in accordance 
 with certain prescribed formalities. But on grounds of policy 
 it is well settled that it is not essential to its proof to show 
 that all the requisite formalities have been complied with. In 
 all cases save where the proof of marriage is essential to the 
 establishment of a criminal charge, as that of bigamy, a mar- 
 riage may be proved by the declarations of the parties and 
 their conduct to each other, and also by that general recogni- 
 tion and reputation of their marriage among those who knew 
 
 Halst 209 ; Wilmington v. Burling- Wis. 217 ; Lauter v. Schluter, 78 Tex. 
 
 ton, 4 Pick. 174 ; Adams v. Swansea, 103. 
 
 116 Mass. 591. ' Morgan v. Purnell, 4 Hawks (N. 
 
 1 Blackburn v. Crawfords, 3 Wall. C), 95 ; Henderson v. Cargill, 31 Miss. 
 175 ; People v. Fulton Fire Ins. Co., 367, 409 ; Barnum v. Bamum, 42 Md. 
 85 Wend. 205. 251 ; Van Sickle v. Gibson, 40 Mich. 
 
 2 Doe V. Auldjo, 5 Q. B. U. C. 171 ; 170. 
 
 Doe V. Servos, 5 Q. B. U. C. 284; <Westfield v. Warren, 8 N. J. L. 
 
 Lamoreaux v. Attorney-General, 89 249. 
 
 Mich. 147; Cope v. Pearce, 7 Gill, 5 o'Hara t. Eisenlohr, 38 N. T. 296. 
 
 347 ; Clements v. Hunt, 1 Jones (N. « Eisenlord v. Clum, 126 N. Y. 552. 
 
 C), L. 400 ; Elliott v. PeirsoU, 1 Pet. ' Corrie v. Cummings, 26 Ga. 690. 
 
 328, 337; Eaton v. Tallmadge, 34 ^Corrie v. Cummings, 26 Ga. 690; 
 
 Wood's Prac. Ev., § 94. 
 28 
 
43J: KULES OF EVIDENCE. 
 
 them which is consequent thereon.* The weight of such dec- 
 larations or reputation may be affected by the absence of evi- 
 dence to show that the prescribed formalities were complied 
 with, but the Marriage Acts which prescribed them were not 
 intended to displace or otherwise alter the proof of marriage 
 by these means. ^ 
 
 When the parties to the alleged marriage are deceased, their 
 conduct towards each other and towards their children has 
 constantly been admitted as evidence of marriage and legiti- 
 macy respectively.' Such evidence may consist of the terms 
 in which the parties have spoken or written to or of each 
 other and their children either in conversation, in letters, in 
 documents of title, on solemn occasions, as in the witne.ss-box 
 or on registering a birth or a death, or in any other circum- 
 stances. Evidence of this description is equivalent to a con- 
 tinuing assertion of the legal character of the relationship be- 
 tween them, and closely resembles the declarations by parents 
 as to the legitimacy or illegitimacy of their children. This 
 head of evidence is not confined, like declarations as to pedi- 
 gree, to cases where the parties are dead. The evidence is 
 equally admissible although one or both of them should be 
 living; the fact that in such cases the more direct proof of 
 the celebration of the marriage is not forthcoming affects the 
 weight, not the admissibility, of the evidence. The evidence, 
 however, is equally admissible on behalf of the husband or 
 wife when he or she is a party to the record. These cases must 
 be distinguished from those where the husband or wife is a 
 party to the record and such evidence is tendered against 
 him or her by way of an admission.* Reputation here means 
 the opinion of relatives, friends and neighbors that the par- 
 
 1 Leader v. Barry, 1 Esp. 353 ; Morris Mo. 183, 11 L R. A. 587 ; Voorhees v. 
 V. Miller, 1 W. Bl. 632 ; Doe v. Flem- Voorhees, 46 N. J. Eq. 411. 
 
 ing, 4Bing. 366; Hoggan v. Craigie, 'Piers v. Pierg, 2 H. L. C. 331; 
 
 Mac. & Rob. 943, 965 ; Breadalbane Goodman v. Goodman, 28 L. J. C. 745 ; 
 
 Case, L. E. 1 Sc. App. 182, 211. Lyle v. Ellwood, 19 Eq. 8; Collins v, 
 
 2 Read v. Passer, Pea. 230; St, Dev- Bishop, 48 L. J. Ch. 31. 
 
 ereux v. Much Dow Church, 1 W. Bl. * Munroe v. De Cheminant, 4 Camp. 
 
 367 ; Maryland v. Baldwin, 112 U. S. 215 ; Wilson v. Mitchell, 3 Camp. 393 ; 
 
 490 ; White v. White, 82 Cal. 437, 7 R. v. Flaherty, 2 C. & K. 783. 
 L. R. A. 799; State v. Bittck, 103 
 
HEARSAY EVIDENCR. 435 
 
 ties are, as their conduct imports, a married couple. It must 
 not be merely the opinion of A. and B. in favor of the mar- 
 riage, opposed perhaps to a contrary opinion entertained by 
 C. and D., but must be general in its character.* It is not, 
 however, necessary that the reputation should be unanimous 
 in order to be admissible; the marriage may be established by 
 a clear preponderance of reputation in its favor.^ It may be 
 proved by any witness who from his residence in the place 
 where it exists, or his connection with the family or other cir- 
 cumstances, can prove the tenor of it from his own direct per- 
 sonal knowledge. So soon as a witness admits that he is only 
 speaking from information given to him by some third per- 
 son his evidence becomes inadmissible.' If, however, a wit- 
 ness merely says, " I heard that A. and B. were man and wife," 
 and is not cross-examined as to the meaning or source of his 
 statement, it may be presumed that it is founded on a reputa- 
 tion held by himself in common with others.* This evidence, 
 like that of cohabitation, is not confined to cases where the 
 parties are deceased; it is admissible while they are living 
 when they are strangers to the proceedings,' and seems to be 
 equally admissible on principle where one of them is a party, 
 subject to the qualification mentioned in the case of criniii' 
 nal charges. 
 
 § 18. Family records. — Entries of births, deaths and mar- 
 riages in the family Bible, or other book or memorandum- 
 book, are admissible in evidence on the ground that, being in 
 that place, they are to be taken as assented to by those hav- 
 ing the custody of the book.* So entries in a hymn-book,^ 
 and a chart or genealogical table preserved as such in the 
 family.' A pedigree which has long hung up in a family 
 mansion is good evidence in such cases,' or a marriage certifi- 
 cate kept bj"^ the family.'" So a minute-book of visitation signed 
 by the heads of the family." So a paper in the handwriting 
 
 ' CuaDingham v. Cunniugham, 3 ' Collins v. Grantham, 13 Md. 440 ; 
 
 Dow. 483, 511, 514. Dobson v. Cothran, 34 S. 0. 618. 
 
 ^Lyle V. EUwood, 19Eq. 98. 8 North Brookfield v. Warren, 16 
 
 'Shedden v. Attorney-General, 30 Gray, 171. 
 
 L J. P. M. & A. 217, 231, 233. 9 Goodright v. Moss, Cowp. 594. 
 
 4 Evans v. Morgan, 2 C. & J. 453. "Jenkins v. Davis, 10 Q. B. 314. 
 
 'Doe V. Fleming, 4 Bing. 266. n Pitton v. Walker, 1 Str. 163. 
 
 « Lewis V. Marshall, 5 Pet. 470. 
 
436 K0LES OF EVIDENCE. 
 
 of a deceased member of the family purporting to give a gen- 
 ealogical account of the family.' And so is almost any docu- 
 ment which, even though not evidence in its own character^ 
 has been preserved as a memorial by the family, such as a 
 transcript of a parish register. So a ring worn publicly, stat- 
 ing the date of the person's death whose name is engraved 
 upon it.2 Except in case of a tombstone inscription or entries 
 in a family Bible, the entries must be proved to have been 
 made by a deceased member of the family,' or that they had 
 been treated in the family as containing a family record.* The 
 handing down of the record in the family may be proved by 
 oral declarations of members of the family.' We find it said 
 that the record in the family Bible of a maternal grandfather 
 of a testator is inadmissible to show his age.* 
 
 § 19. Old documents, inscriptions, etc. — Wood, in his 
 Practice Evidence, says: "Kecitals in old deeds are evidence.' 
 So are other statements in an instrument executed by a mem- 
 ber of the family since deceased, such as a will recognizing 
 children,^ or inscriptions on old gravestones. So a register of 
 births and marriages kept in the records of a town.** Letters 
 purporting to have come from the deceased, and containing 
 declarations as to facts of his family history, are competent if 
 proved to be in his handwriting. The envelopes, if existing, 
 should be produced. So statements in old wills bearing upon 
 questions of pedigree or relationship, although the will is can- 
 celed and never was operative, but which was found among 
 the papers of the testator, a deceased member of the family 
 whose pedigree is in question, is admissible." In case of a loss 
 of an ancient instrument, the record or probate, with appro- 
 priate evidence to identify it as a family or public memorial, 
 is competent. So depositions of deceased witnesses, used in a 
 case between other parties, are admissible upon a question of 
 pedigree, whether taken before or after the litigation com- 
 menced in which the question of pedigree is involved." Coat- 
 armor and mural inscriptions, giving an historical account of a 
 
 1 Monckton v. Attorney-General, 3 « Turner v. King, 98 Ky. 253, 256. 
 Euss. & My. 147. ' Little v. Palister, 4 Me. 209. 
 
 2 Collins V. Grantham, 12 Ind. 440. 8 Russell v. Jackson, 22 Wend. 276. 
 'Hubback, Ev. of Sue. 673. » Miner t. Boneham, 15 Johns. 226. 
 
 * Hood V. Beauchamp, 8 Sim. 29. lo Hunt v. Johnson, 19 N. Y. 279. 
 
 * Doe V. Davies, 10 Q. B. 324. " Peake's Ev. 24. 
 
HEARSAY EVIDENCE. 437 
 
 family, placed in a chancel which was formerly used as a burial 
 place for the family, located in a parish where the family were 
 long resident proprietors, are admissible. So memoranda in 
 an almanac, a prayer-book, as well as entries in any other doc- 
 uments, books or paperSj kept in and accessible to the family, 
 are admissible." ' 
 
 § 20. Declarations of a deceased person. — Wood, in his 
 Practice Evidence, says : " The memoranda of a parent are 
 good evidence to prove the time of the birth of a child ; ^ but 
 not as to the place of birth.' An inscription on a tombstone, 
 stating the age of a party, is admissible.* So an old tracing 
 , from an effaced monument.' So a bill in chancery by a father 
 stating his pedigree.^ An answer in chancery, sworn ante 
 litem motam, is evidence of pedigree set forth in it. Declara- 
 tions of the kind above described are strictly admissible only 
 in inquiries relating to descent or relationship, or in tracing 
 the devolution of property. Some facts of family history, 
 such as deaths, issue or failure of issue, kinship, name and 
 marriage, may be proved by general reputation in the family, 
 upon the testimony of a witness whose knowledge of that re- 
 pute and of the conduct of ftierabers towards each other is 
 that which usually exists among intimate acquaintances."" 
 
 §21. Of other persons, admissible when. — Declarations 
 of a deceased person as to her own legitimacy are /evidence. 
 So of a deceased husband as to the legitimacy of his wife and 
 as to the pedigree of her 'family.' So the declarations of a 
 wife as to her husband's family,' but not the declarations of 
 her husband's father, nor the declarations of illegitimate rela- 
 tions.'" The declarations of servants and intimate acquaint- 
 ances are not admissible. But general repute among one's 
 acquaintances that he had died is competent, either when he 
 left no kindred," or in connection with family repute when he 
 
 1 Wood, Prac. E v., §§ 93, 94, 95. Tallmadge, 24 Wis. 217 ; Vial v. Smith, 
 
 2Brunce v. Routings, 7 East, 390. 6 E. I. 419; Spears v. Burton, 31 Miss. 
 
 »Rex V. Erith, 8 East, 542. 547. 
 
 * Kidney v. Cockburn, 3 Russ. & 8 Vowles v. Young, 13 Ves. 148. 
 My. 167. 9 Shrewsbury Peerage, 7 H. L. C. 1. 
 
 sSlaney v. Wade, 7 Sim. 595. WBamford v. Barton, 3 M. & Rob. 
 
 STaylorv. Cole, 7T. R. 8. 28. 
 'Wood's Prac. Ev., g 93; Eaton v. HRiughouse v. Keever, 49 111.470. 
 
438 EULES OF EVlDENCii. 
 
 died abroad.i In the absence of any direct evidence, the tes- 
 timony of those who naturally would be likely to hear of the 
 absentee, if living, such as one residing near the estate of a 
 tenant for life, though not a member of the family, that he 
 had not been heard of for years, is competent.^ The fact that 
 insurers have paid a loss upon a vessel not heard from is re- 
 ceived as relevant to the presumption of death of one on board ; 
 but mere memoranda, though found in official record books, 
 are not competent.' Public histories, biographies and other 
 compilations are some evidence of the facts they recite.* 
 
 § 22. Declarations made in view of coHtroversy. — If it ap- 
 pears by either the declaration itself, or other evidence, that at 
 the time the declaration was made a discussion and contro- 
 vers}' had arisen as to the fact of family history sought to be 
 proved, the declaration is incompetent.* It is the beginning 
 of a dispute, involving the very point in question, not that of 
 the state of facts from which the dispute sprang, nor that of 
 resulting litigation, which determines the competency. It 
 makes no difiference that the dispute was raised for the pur- 
 pose of excluding declarations, or that the existence of the dis- 
 pute was unknown to the declarant, and declarations made for 
 the purpose of evidence would not be competent.* 
 
 § 23. When declarant alive. — Oral declarations, family rec- 
 ords and other documents of the nature of hearsay are equally 
 primary, but the competency of each depends not on entire 
 absence of more satisfactory evidence, but on the death of the 
 declarant ; and if he is alive and within the reach of process, 
 the declaration, whether oral or written, is incompetent,' ex- 
 cept as against him or those claiming under him, or by way of 
 corroboration of testimony given by the declarant as a witness. 
 
 § 24. Declarations in the course of duty. — When a person 
 in the regular course of his duty or office performs some busi- 
 ness transactions and makes forthwith a return or record of it 
 which he has no interest to falsify, such return or record is, 
 
 lEwing -v. Savory, 3 Bibb, 235. 5 Hodges v. Hodgefe, 106 N. G. 374; 
 
 2 Flynn v. CoflFee, 13 Allen, 133. Elliott v. Piersol, 1 Pet 337. 
 
 ' Eidgeley v. Johnson, 1 1 Barb. 527. * Chapman v. Chapman, 2 Conn. 
 ^Russell T. Jackson, 33 Wend. 376. 347. 
 
 'State V. Parker, 106 N. C. 711. 
 
HEARSAY BVIDENCM. 439 
 
 after his death, evidence against all persons of the performance 
 of the transaction, and is known as a declaration in the course 
 of duty.' The office or employment to which the duty is at- 
 tached may be private, as in that of an ordinary clerk ; or pub- 
 lic, as in that of a sheriff^ or of a notary public' It is not 
 enough that the entry has been made in the course of business; 
 it is essential that it should also have been the duty of the de- 
 clarant to make it. It is not sufficient that) the declarant should 
 have had personal knowledge of the transaction recorded ; it 
 must be one that he himself has performed, and one of a class 
 which it was his specific duty to perform; and the entry, un- 
 like a declaration against interest, must have been made at the 
 time of or immediately after the performance of the transac- 
 tion.* 
 
 These declarations, unlike those against interest, are not ad- 
 missible as evidence of any other matters than the particular 
 transaction which it was the duty of the declarant both to per- 
 form and to record, however intimately any such collateral 
 matters may be incorporated in the statements.^ 
 
 §25. Public records. — An entry-in any record, official book 
 to registry in any state or at sea, or in any foreign country, 
 stating a fact in issue, or relevant or deemed to be relevant 
 thereto, and made in proper time by any person in the dis- 
 charge of any duty imposed upon him by the law of the place 
 in which such record, book or register is kept, is itself deemed 
 to be a relevant fact.* Thus, official registers and records kept 
 ^y public officers, in which they are required, either by statute 
 or by the nature of their office, to write down particular trans- 
 actions occurring in the course of their public duties or under 
 their personal observation, are adrnissible in evidence.' Thus, 
 
 1 Price V. Torrington, 1 Salk. 385; Polini v. Gray, 13 Ch. D. 411 ; Stuila 
 Polini V. Gray, 13 Ch. D. 411, 439, 430 ; v. Freccia, 5 App. Gas. 623, 640. 
 Sturla V. Freccia, 5 App. Gas. 683, 640. ^ chambers v. Bernaseoni, 1 G, M. 
 
 2 Chambers v. Nernasconi, 1 0., M. & R. 347; Smith v. Blakey, L. R. 3 
 & R. 347. , Q. B. 336, 383, 335 ; Polini v. Gray, 13 
 
 'Poole V. Dioas, 1 Bing. N. C. 649. Gh. D. 411, 419-433, 426, 430. 
 
 <Doe V. Turford, 3 B. & Ad. 890; eEvanstoH v. Gunn, 99 U. S. 660; 
 Brain v. Preece, 11 M. & W. 773 ; 1 Greeal. Ev., §§ 483, 484, 485, 493. 
 Smith V. Blakey, L. E. 3 Q. B. 826 ; ' Hanna v. Connecticut Mat. L. Ins. 
 
 Co., 150 N. Y. 526 ; United States v. 
 
440 EULES OF EVIDENCE. 
 
 entries made by a jailer in a book which he is required to keep, 
 whether by statute or by command of his superior, are com- 
 petent evidence to show the presence of a prisoner in the jail 
 on a certain day, although the jailer has no recollection of the 
 fact.' So a certificate of protest of a note by a notary public 
 of another state, attested by his seal, is prima facie evidence 
 that the acts indicated were done by him.^ So statements 
 made in the certificate of death are admissible until explained 
 against plaintiff in an action on an insurance policy.^ So a 
 private record of marriage kept in a book by a deceased clergy- 
 man is admissible in evidence upon proof that the entries are 
 in his handwriting.* A register kept without authority of 
 law is competent in evidence of the main fact, whether of 
 marriage, baptism or burial, and of its date, but not of other 
 facts stated in it.^ But to admit it, it must appear that it was 
 kept by the proper ofiBcer or by the officiating clergyman, pur- 
 suant to his duty or in the usual course of his functions, and 
 that he is since deceased.* It should also appear that the reg- 
 istry is produced from the custody of his successor, the entry 
 being in his own handwriting, and appearing to have been 
 made contemporaneous with the performance of the right, and 
 before controversy arose, with no apparent inducement to mis- 
 take nor interest adverse to his official duty.' 
 
 § 26. Recital of public facts in statutes, etc. — When any 
 act of state or any fact of a public nature is in issue, or is, or is 
 deemed to be, relevant to the issue, any statement of it made 
 in a recital contained in any public statute or in any public 
 proclamation, or any message of an executive to the legisla- 
 ture or in any legislative resolution, is deemed to be a relevant 
 fact.* So are recitals in private deeds and contracts as between 
 
 Cross, 20 Wash. L. Rep. (D. C.) 98 ; * Johnson v. Cowdrey, 46. N. Y. 
 
 Scot V. Chope, 33 Neb. 41 ; Hoganspon State Rep. 546. 
 
 V. Shirk, 189 Ind. 353 ; White v. 5 Bowis v. Marshall, 5 Pet 470. 
 
 United States, 164 U. S. 100. « Doe v. Andrews, 15 Q. B. 758. 
 
 1 White V. United States, 164 U. S. 7 Kennedy v. Doyle, 10 Allen, 161. 
 100. 8 Gregg v. Forsyth, 34 How. (U. S.) 
 
 2 Fletcher V. Arkansaw Nat. Bank, 179; Bryan v. Forsyth, 19 id. 834; 
 63 Ark. 365. Radcliff v. United Ins. Co., 7 Johns. 
 
 ' Hanna v. Connecticut Mut. L. Ins. 51 ; Armstrong v. United States, 13 
 Ins. Co., 150 N. Y. 536. Wall. 154. 
 
HEARSAY EVIDENCE. 4il 
 
 the parties thereto and their privies ; ' but not ex parte entries 
 in books.^ 
 § 27. Entries made by deceased attorneys and officers. — 
 
 Entries and memoranda made by persons since deceased, in the 
 ordinary course of professional and official employment, are 
 competent secondary evidence of the facts contained in them, 
 where they had no interest to misrepresent or misstate them. 
 They are admitted from necessity. Thus, the entry by an at- 
 torney in his register, in the proceedings in the action, of the 
 issuing of an execution which could not be found, was held, the 
 attorney being dead, to be competent evidence of the fact that 
 the execution was issued.' Nor is it necessary that the entry 
 should have been made in a book to make the evidence admis- 
 sible.* Receipts of public officers for money paid to them 
 which they are authorized to receive are primary evidence of 
 the fact of payment; and they are competent secondary evi- 
 dence, after the officer's death, within the general principle 
 upon which entries and memoranda of persons since deceased 
 are admitted.' It is an admission against his interest, made in 
 respect to a matter pertaining to his official duty. Written 
 memoranda made under such circumstances may reasonably 
 be assumed to be truthful and are evidence, after the death of 
 the party who made them, as well of the facts against his in- 
 terest as of the other incidental and collateral facts and cir- 
 cumstances mentioned, and are admissible irrespective of the 
 fact whether any privity existed between the person who made 
 them and the party against whom they are offered.* "Where an 
 order of the court cannot be found in the clerk's office, a copy 
 of an entry in the official register of the corporation's counsel 
 at the time is admissible in evidence to prove the making of 
 
 * United States Vinegar Co. V. Schle- 'Leland v. Cameron, 31 N. Y. 
 
 gel, 143 N. Y. 587; Sperry v. Wesco, 115. 
 
 26 Oreg. 483; Garrett v. Belmont < Livingston v. Arnoux, 56 N. Y. 
 
 Land Co., 94 Teun. 459 ; Clemson A. 507 ; Porter v. Judson, 1 Gray, 175. 
 
 C. V. Pickens, 43 S. C. 511; State v. 5 1 Phil. Ev. (3d ed.), 299; Lessee 
 
 Seabrook, 43 S. C. 74 of Cluggage v. Swan, 4 Bin. 150 ; 
 
 2 Werner v. Graley, 54 Kan. 383; Harrison v. Blades, 3 Camp. 457; 
 
 Moore v. Copely, 115 Pa. St. 294; Jones v. Carrington, 1 C. & P. 337, 
 
 Todd V. Eighmie, 4, App. Div. 9 ; Sul- id. 497. 
 
 phur Min. Co. v. Thompson, 93 Va. « Doe v. Eobson, 15 East, 53; Davis 
 
 293; Eyan v. People, 165 111. 143; An- v. Humphreys, 6 M. & W. 155; Liv- 
 
 drews v. Need, 57 Kan. App. 191. ingston v. Arnoux, 56 N. Y. 507. 
 
412 EULES OF EVIDENCE. 
 
 the order.' And entries made by a third person in the usual 
 course of professional employment contemporaneously with 
 the transaction recorded are admissible to prove the fact 
 stated after the death of the person by whom the entry was 
 made.^ The entry by an attorney in his register of the mak- 
 ing of an order or decree in a proceeding conducted by him 
 is admissible within this rule. The order or decree is the act of 
 the court, but it is procured upon the application of the attor- 
 ney, and the fact of obtaining it is a part of the history of the 
 proceeding which properly and usually is inserted in the reg- 
 ister. There is no absolute duty resting upon an attorney to 
 make such an entry, but this is not essential; it is sufficient if 
 the entry was the natural concomitant of the transaction t6 
 which it relates and usually accompanies it.' Thus, in Mayor, 
 etc. of ISTew York v. Second Avenue Railroad Co.,* where the 
 time-book kept by a foreman, consisting of entries made from 
 the reports of gang foremen, was admitted in evidence to 
 show the number of days' labor upon the testimony of the 
 foreman keeping it that he had correctly entered the facts as 
 reported, and of the gang foremen to the effect that they had 
 correctly reported the facts to the foreman as they existed to 
 their knowledge at the time of making them to the foreman, 
 the court say: "The time-book was clearly not admissible 
 upon the testimony either of the gang foremen or of Wilt, 
 separately considered. The gang foremen knew the facts 
 they reported to Wilt to be true, but they did not see the en- 
 tries made and could not verify their correctness. Wilt did 
 not make the entries upon his own knowledge of the facts, but 
 from the reports of the gang foremen. Standing on his testi- 
 mony alone, the entries were mere hearsay. But combining 
 the testimony of Wilt and the gang foremen, there was, first, 
 original evidence that the laborers were employed, and that 
 their time was correctly reported by persons who had per- 
 sonal knowledge of the facts, and that their reports were 
 made in the ordinary course of business and in accordance 
 with the duty of the persons making them, and in point of 
 time were contemporaneous with the transactions to which 
 the reports related ; and second, evidence by the person who 
 
 1 Fisher v. Mayor, etc., 67 N. Y. 73. 8 1 Gre&nl. Ev., § 115. 
 
 2 Doe V. Tinford, 3 B. & Ad. 898 ; * 103 N. Y. 573. 
 Brewster v. Doane, 3 Hill, 537. 
 
HEAKSAY EVIDENCE. 443 
 
 received the reports that he correctly entered them, as re- 
 ported in the time-book, in the usual course of his business and 
 duty." " The question arises, must a material, ultimate fact 
 be proved by the evidence of a witness who knew the fact 
 and can recall it, or who, having no personal recollection of 
 the fact at the time of his examination as a witness, testifies 
 that he made or saw made an entry of the fact at the time, or 
 recently thereafter, which, on being produced, he can verify 
 as the entry he made or saw, and that he knew the entry to 
 be true when made; or may such ultimate fact be proved by 
 showing by a witness that he knew the facts in relation to the 
 matter which is the subject of investigation, and communi- 
 cated them to another at the time, but had forgotten them, 
 and supplementing this testimony by that of the person re- 
 ceiving the communication, to the effect that he entered at the 
 time the facts communicated, and by the production of the 
 book or memoranda in which the entries were made. The ad- 
 missibility of memoranda of the first class is well settled.^ 
 The other branch of the inquiry has not been very distinctly 
 adjudicated. . . . We are of opinion that the rule as to 
 the admissibility of memoranda may properly be extended so 
 as to embrace the case before us." 
 
 Entries made in the usual course of duty by a person still 
 living and within the state are not admissible without other 
 evidence of their truthfulness, such as the testimony of a wit- 
 ness who had personal knowledge of the transaction. But en- 
 tries and memoranda made in the usual course of business 
 by notaries, clerks and other persons may be received in evi- 
 dence after the death of the person who made them. It is 
 enough that the partj' who made them acted on the occasion 
 in the usual course of his employment, and is dead.^ 
 
 Declarations must be cotitemporaneous: If the declaration 
 take the form of a written entry, the entry must be contempo- 
 raneous with the events to which it relates.' This rule does not 
 
 iHalsey v. Sinsebough, 15 N. Y. 516; Clark v. Magruder, 3 H. & J. 77; 
 
 485. Kennedy v. Doyle, 10 Allen, 161, 168 ; 
 
 2 Ocean Nat Bank v. Carl, 55 N. Y. Ray v. Castle, 79 N. C. 580; Burley 
 
 440. V. Bank, 111 U.S. 216. 
 
 'Chaffee v. United States, 18 Wall. 
 
444 
 
 EULES OF EVIDENCE. 
 
 include a diary.* The entry, moreover, must be based on the 
 personal knowledge of the declarant.^ 
 
 Other disability: It has been held that disability of insanity 
 or absence from the jurisdiction is sufficient;' and the entry is 
 admissible, though its maker be alive and subject to the juris- 
 diction of the court.* 
 
 1 Costello V. Crovvell, 139 Mass. 588. 
 
 2 Chaffee v. United States, 18 Wall. 
 516 ; Lewis v. Kramer, 3 Md. 365. 
 
 ' New Haven, eta Co. v. Goodwin, 
 43 Conn. 330 ; North Bank: v. Abbott, 
 13 Pick. 465 ; McDonald v. Carnes, 90 
 Ala. 147; Vinal v. Gilman, 21 W. Va. 
 301 ; Parker v. Nickerson, 137 Mass. 
 
 487; Elliott v. Dycke, 78 Ala. 150; 
 State V. Hopkins. 56 Vt 250; Rey- 
 nolds V. Sumner, 126 111. 58 ; Terry v. 
 National Bank, 93 Ala. 599. 
 
 4 Chaffee v. United States, 18 Wall. 
 516; Shove v. Wiley, 18 Pick. 558; 
 Fennerstein's Champagne, 8 WalL 
 143. 
 
CHAPTEE XIII. 
 
 HEARSAY EVIDENCE (Continued). 
 
 t OF ANCIENT POSSESSION. 
 § 1. In general. 
 
 2. Declarations aocompanyingpos- 
 
 session. 
 
 3. Private titles — Hearsay not ad- 
 
 missible as to. 
 4 
 5. 
 6. 
 7. 
 
 9. 
 
 Perambulations. 
 
 Modern exercise of right 
 
 Private boundaries — Hearsay 
 to establish. 
 
 Deceased surveyors — Declara- 
 tions of. 
 
 Owner's declarations. 
 
 n. DYING DECa^ARATIONS. 
 
 10. In general. 
 
 11. Preliminary examination. 
 13. Competency of declarations. 
 13. To material matters only. 
 
 14 Declarations must be complete. 
 
 15. Children — Dying declarations 
 
 of. 
 
 16. Weight to be given dying dec- 
 
 larations. 
 
 IIL DECLARATIONS AGAINST INTEREST. 
 
 17. In general 
 
 18. Against pecuniary interest. 
 
 19. Conditions precedent to admis- 
 
 sion. 
 
 20. Declarations of deceased 
 
 grantor. 
 
 21. Declarations of decedent 
 
 against his representatives. 
 
 22. Declarations of testator as to 
 
 contents of lost wilL 
 
 23. Donor. 
 
 IV. MEMORANDA. 
 
 § 24 Entries by public officer from 
 reports by other officers. 
 
 V. SHOP-BOOKS, ACCOUNT-BOOKS, ETC. 
 
 25. In general. 
 
 26. Time of entry material, v?hen. 
 
 VI. MEMORANDA AS EVIDENCK 
 
 27. In general. 
 
 28. Eefreshing memory by. 
 
 29. When memoranda must be 
 
 made by vpitness. 
 
 30. When vcitness need not have 
 
 recollection independent of 
 memorandum. 
 
 31. Memoranda primary evidence, 
 
 when. 
 
 VII. EVIDENCE GIVEN IN A FORMER 
 PROCEEDING. 
 
 32. In general. 
 
 33. Same parties — Cross-examina- 
 
 tion. 
 34 Mode of proof. 
 
 VIII. MISCELLANEOUS. 
 
 IX BOOKS OF CORPORATIONS AS EVI- 
 DENCE. 
 
 In general. 
 
 Records of corporations. 
 
 Against whom competent 
 
 Minutes proved by parol, when. 
 
 Authentication of corporate 
 records. 
 
 Parol evidence to vary corpo- 
 rate minutes. 
 41. Accounts and business entries. 
 
 35. 
 36. 
 
 37. 
 38. 
 
 40. 
 
 I. OF ANCIENT POSSESSION. 
 
 § 1. In general. — Mr. Greenleaf says: "A second excep- 
 tion to the rule rejecting hearsay evidence is allowed in cases 
 
446 E0LES OF ETIDENCE. 
 
 of ancient possession, and in favor of the admission of ancient 
 documents in support of it. Upon the same principle and for 
 the same reasons that hearsay evidence is admitted upon ques- 
 tions of pedigree are ancient documents admitted upon ques- 
 tions of ancient possession and in support of them ; and an 
 ancient deed or will, or other instrument of title, may be ad- 
 mitted in evidence without direct proof of execution when 
 shown to have come from proper custody, and appearing to 
 be of the age of at least thirty years, if either a corresponding 
 possession under it for at least thirty years is shown, or if 
 such account of it be given as may reasonably be expected 
 under all the circumstances of the case, and as affords a pre- 
 sumption that it is genuine." 1 But not the power of attorney 
 to execute it. "When there is nothing suspicious about them 
 they are presumed to be genuine without express proof, the 
 witnesses being presumed to be dead."^ The admission of 
 ancient documents purporting to constitute part of the trans- 
 actions themselves, to which, as acts of ownership, or of the 
 exercise of right, the party against whom they are produced is 
 not privy, are hearsay evidence of ancient possession. 
 
 § 2. Declarations accompanying possession. — Ancient docu- 
 ments, apparently exercising acts of ownership, are admissible 
 as evidence of such acts, provided such documents are from 
 proper custody ' and corroborated by proof of actual posses- 
 sion.* But copies of such deeds do not prove themselves.' 
 
 n Greenl. Ev., §§ 141, 143, 144; ney, 5 Pet 319, 344 ; Duncan y. Beard, 
 
 Enders v. Sternberg, 2 Abb. Ct. App. 2 Nott & McC. 400 ; Goodwin v. Jack, 
 
 Dec. 31; Crowder v. Hopkins, 10 62Me.414; WilletfBV.Mandlebaum.aS 
 
 Paige, 183 ; Storing v. Bowen, 6 Barb. Mich. 521 ; Whitman v. Henneberry, 
 
 109; Jackson V. Luquere, 5 Cow. 221; 78 111. 109; Hathaway y. Evans, 113 
 
 Wilson V. Betts, 4 Denio, 201 ; Clark Mass. 264 ; Floyd v. Tewksbury, 139 
 
 V. Owen, 18 N. Y. 434; Ridgeley v. Mass. 362; Thompson v. Bennett, 23 
 
 Johnson, 11 Barb. 527 ; Re Ainy (1897), C. P. U. C. 393 ; Harlan v. Howard, 
 
 1 Ch. 164 79 Ky. 373 ; Havens v. Shore Co., 47 
 
 2 1 Greenl. Ev., § 144 ; Doe v. Roe, N. J. Eq. 365 ; Woods v. Bonner, 89 
 
 31 Ga. 593 ; Clark v. Wood, 34 N. H. Tenn. 411 ; Bell v. Brewster, 44 Ohio 
 
 447. St. 690; Wilson v. Simpson, 80 Tex. 
 
 8 1 Greenl. Ev., g§ 141-146 ; 1 Whart. 279 ; Poison v. Ingram, 32 a C. 541 ; 
 
 Ev., §§ 194 199 ; Boston v. Richard- Williams v. Conger, 125 U. S. 397. 
 son, 105 Mass. 351, 871 ; Hewlett v. ■• Middleton v. Massachusetts, 2 
 
 Cock, 7 Wend. 371 ; Clarke v. Court- Nott & McC. 55 ; Carroll v. Norwood, 
 
 5 Schimior v. Russell, 83 Tex. 83 ; S. C. 333 ; Woods v. Bonner, 89 Tenn. 
 WoUfolk V. Manufacturing Co., 23 411. 
 
HEARSAY EVIDKNOE. 44T 
 
 Wood, in his Practice Evidence,^ says : " The mere existence 
 of a deed for more than thirty years, without proof of accom- 
 panying possession, is not enough in any case to authorize it 
 to be read in evidence as an ancient deed without proof of its 
 execution.^ But proof of possession under the deed, even for 
 a short time, will be sufficient. Thus, where possession for 
 five years was proved, it was held that the deed, being more 
 than thirty years old, was admissible in evidence as an ancient 
 deed.' But the fact that there has been no possession under 
 the instrument will not defeat the admissibility of the instru- 
 ment, if its authenticity is otherwise established, or such facts 
 are shown as raise a fair presumption of its genuineness.* As 
 the value of these documents depends mainly on their having 
 been contemporaneous, at least with the act of transfer, if not 
 part of it, care is first taken to ascertain their genuineness, 
 and this may be shown prima facie by proof that the docu- 
 ment comes from the proper custody, or by otherwise ac- 
 counting for it. Documents found in a place in which, aiid 
 under the care of persons with whom, such papers might nat- 
 urally and reasonably be expected to be found, or in the pos- 
 session of persons having an interest in them, are in precisely 
 the custody which gives authenticity to documents found 
 within it.' The absence of proof of possession affects merely 
 the weight and not the admissibility of the instrument; and 
 ancient documents purporting to be a part of the transaction 
 to which they relate, and not a mere narrative of them, are 
 receivable as evidence that those transactions actually oc- 
 curred. Where proof of possession cannot be had, the deed 
 raay be read, if its genuineness is satisfactorily established by 
 other circumstances." 
 
 §3. Private titles — Hearsay not admissible as to. — ' 
 Hearsay is, in general, inadmissible to prove particular facts, 
 
 1 Har. & J. 167, 174 ; Shaller V. Brand, 201; Chamberlain v. Torrance, 14 
 
 6 Binn. 435, 439 ; Doe v. Phelps, 9 Grant's Ch. 181. 
 
 Johns. 169, 171 ; Whitman v. Henne- > Sec. 99. 
 
 berry, 73 III. 109 ; Gardner v. Gran- 2 Fairly v. Fairly. 38 Miss. 280 ; 
 
 niss, 57 Ga. 539 ; Brown v. Wood, Gainer v. Cotton, 49 Tex. 101 ; Blake- 
 
 6 Rich. Eq. (S. C.) 156 ; Barr v. Gratz, man v. Doughty, 40 N. J. L 819. 
 
 4 Wheat. 213, 281; Ammons v. Dyer, ' Hamlin v. Burwell, 75 Va. 551. 
 
 78 Tex. 639 ; Jackson v. Lamb, 7 * White v. Hiitchins, 40 Ala. 253. 
 
 Cowen, 431 ; Wilson v. Betts, 4 Denio, ^ Winne v. Patterson, 9 Pet 663 ; 
 
 Law V. Mumma, 43 Pa. St.' 267, 
 
4iS ECLES OF EVIKENCE. 
 
 unless such facts have become matters of general reputation ; 
 and such evidence is also inadmissible for the purpose of prov- 
 ing private titles, when unsupported by any analogy to mat- 
 ters of public or general interest.' 
 
 § 4. Maps. — Maps and ancient surveys, as well as reputa- 
 tion, are evidence to elucidate and ascertain a boundary. In 
 the trial of actions involving title to lands, plans of the prem- 
 ises may be shown to the jury, and taken by them to the jury- 
 room, if proved to be correct so far as they go.^ An exjparU 
 map or diagram or plat made by a witness and shown to be 
 correct may be introduced in evidence, not as independent 
 evidence, but to be considered in connection with other evi- 
 dence to enable the court or jury to understand and apply it,' 
 and may be used by a surveyor who made it to explain and 
 illustrate his testimony as to measurements made by him.* 
 So in a suit between the owners of adjoining land to establish 
 the dividing line, both parties deriving their title from the 
 same grantor, a map annexed to the deed of the premises to 
 said grantor and referred to in the deed is evidence.' 
 
 § 5. Perambulations. — Mr. Greenleaf says : " Perambula- 
 tions consist of the acts of persons making a survey, marking 
 boundaries, setting up monuments, and the like, including their 
 declarations respecting such acts, made during the transaction. 
 Evidence of what these persons were heard to say upon such 
 occasions is evidence, not however as hearsay, but as part of 
 the res gestm, and explanatory of the acts themselves, done in 
 the course of the ambit." ' It is held to be usual to admit 
 what old people, since deceased, who accompanied the peram- 
 bulator, were heard to say on such occasions respecting the 
 boundaries. Where a surveyor who was present and assisted 
 in making a survey, and who pointed out to several witnesses 
 a corner as made by him or in his presence when the original 
 survey was made, is shown on the trial to be incapable on 
 account of his physical condition to testify, testimony of such 
 witnesses to the declarations of such surveyor is competent.' 
 
 1 Wood's Prac. Ev., § 100; Dids- ■"Bunker Hill & S. Min. & C. Co. 
 bury V. Thomas, 14 East, 323 ; Max- v. Sohmelling, 79 Fed. Rep. 263 ; Car- 
 well Land Grant Co. v. Dawson, 151 roll v. Price, 81 id. 137. 
 
 U. S. 379 ; Koch v. Bissell, 30 App. 5 Crawford v. Loeper, 35 Barb. 449. 
 Div. 6. « 1 Greenl. Ev., § 146 ; Elliot v. Pearl, 
 
 2 Wood V. Williard, 36 Vt. 83. 1 McLean, 211. 
 
 « State V. Harr, 38 W. Va 58. ' GrilBths v. Sauls, 77 Tex. 630. 
 
HEAESAT EVIDENCE. 449 
 
 §6. Modem exercise of right. — As a general rule, evi- 
 dence of reputation is not to be received unless a foundation 
 be laid, by other evidence, of the right. But the absence of 
 such evidence only affects the value of the proof. 
 
 § 7. Private boundaries — Hearsay to establish. — The 
 declarations of deceased persons who are shown to have been 
 in a position to know the facts are admissible to establish the 
 boundaries of lands owned by private persons.' And in a 
 controversy as to vehether certain stones constitute a corner- 
 bound of two lots of land, a former owner of one having long 
 acquaintance with the disputed bound may testify that he 
 "always supposed these two stones were the corner," and 
 that he "knew no other," and that no question to the con- 
 trary was made during his ownership.^ Common reputation 
 or hearsay is allowed from necessity. Thus, in Higley v. Bib- 
 well,^ aged men who lived in the vicinity were allowed to tes- 
 tify that when young they heard old men, since dead, say there 
 was a traveled road or highway over the land in dispute. But 
 this evidence is only admissible where the person making the 
 declarations is shown to be dead,* and is shown to have had 
 actual knowledge of the lines or boundaries in question, and 
 stood in such relation to the property as to have no interest to 
 misrepresent the fact.* 
 
 §8. Deceased surveyors — Declarations of. — Declarations 
 of a surveyor employed to run a boundary, if made in con- 
 nection with his work and in reference to it, are admissible 
 in evidence after his death against the party who employed' 
 hira.^ The same rule prevails where the surveyor is shown to 
 be incapable on account of his physical condition to testify.'' 
 The declarations of deceased persons who are shown to have 
 been in a situation to know the facts, although they have no 
 interest whatever in the establishment of the boundaries, are 
 
 'Douohue V. "Whitney, 133 N. Y. ■'Wood v. Williard, 37 Vt. 372. 
 
 178,39 N. Y. State Rep. 706; Enliss 6 Mason v. McCormaok, 85 N. C. 
 
 V. McAdams, 108 N. C. 507; MuUer v. 226; Donohue v. Whitney, 133 N. Y. 
 
 Southern P. B. R. Co., 83 Cal. 240. 178, 39 N. Y. State Rep. 706. 
 
 2 Leach v. Bancroft, 61 N. H. 411 ; 6 Barclay v. Howell's Lessees, 6 Pet. 
 
 Maxwell Land Grant Co. v. Dawson, 498 ; McCormick v. Barnurn, 10 
 
 151 U. S. 279. And see Griffith v. Wend. 105. 
 
 Sauls, 77 Tex. 631. 7 Griffith v. Sauls, 77 Tex. 630. 
 
 '9 Conn. 447. 
 29 
 
450 EULES OF EVIDENCE. 
 
 admitted as evidence.^ But no oral evidence, much less hear- 
 say, can be received to change the objects mentioned in the 
 deed, entry or survey, or, in other words, to substitute one ob- 
 ject for another. When corners in a deed are lost they may 
 be proved by reputation, but not to contradict the deed ; as 
 where the deed sets a sugar and ash tree as the southeast 
 corner and two beeches for the northeast corner, reputation 
 is not admissible to substitute a hickory, oak and beech tree 
 for the first, nor two hickories for the other.^ 
 
 § 9. Owner's declarations. — -Wood, in his Practice Evidence, 
 says: "Declarations by the owners of land, made against their 
 pecuniary or proprietary interest, are admissible, provided they 
 do not question a title which the declarant had no right to 
 question.' Under this rule the declarations of one person in 
 possession of land in disparagement of his own title are ad- 
 missible in evidence against him and those claiming under him, 
 but declarations in favor of his own. title are inadmissible.* 
 Declarations of persons in possession of property can only be 
 given in evidence as part of the res gestae or in respect to their 
 interest in the subject-matter; and a party must be shown to 
 have been in possession before his declarations niade at the 
 time are admissible as part of the res gestae, and as explana- 
 tory of the possession.' Declarations made by an owner in 
 his own favor are not admissible to show the location of a 
 boundary, but are admissible for the purpose of showing non- 
 acquiescence in a different line or boundary. The rule as to 
 the lis mota prevails in reference to declarations relating to 
 matters of general or public interest." * 
 
 II. DYING DECLAEATIONS. 
 
 § 10. In general. — In cases of homicide, where the death 
 of the deceased is the subject of the charge, and the circum- 
 stances of the death are the subject of the dying declarations, 
 
 1 BIythe v. Sutherland, 3 McCord tin, 17 Conn. 399 ; White v. Long, 24 
 (S. C), 258; Bonnett v. Devebaugh, Pick. 319. 
 
 3 Bin. (Pa.) 175. < Glbney v. Morchay, 34 N. Y. 301 ; 
 
 2 Wood's Prac. Ev., i. 111; McCoy Allen v. Grove, 18 Pa. St. 277; Dow 
 V. Galloway, 3 Ohio, 283. v. Jewell, 18 N. H. 340; Peabody v. 
 
 3 Everts v. Young, 53 Vt. 329 ; Put- Hevi^ett, 53 Me. 38. 
 
 man v. Fisher, id. 191 ; Smith v. Mar- 5 EHis v. Janes, 10 Cal. 456. 
 
 6 Wood, Prac. Ev., §114. 
 
HEARSAY EVIDENCE. 451 
 
 dying declarations are allowed, if made in extremis, as to the 
 cause of the declarant's death and as to the person who in- 
 flicted the fatal wound. In other words, a declaration made 
 by the declarant as to the cause of his death, or as to any of 
 the circumstances of the transaction which resulted in his 
 death, is competent only in trials for murder or manslaughter 
 of declarant.^ Such declarations are' admissible in favor of 
 the defendant as well as against him.^ It is essential to the 
 admissibility of such declarations that at the time they were 
 made the declarant was in actual danger of death, that he 
 had full apprehension of his danger, and that death ensued.' 
 Whether a statement by deceased was made when he was in 
 extremis and had given up all hope of life, so as to render it 
 admissible as a dying declaration, is to be determined, not 
 only by what he said, but also by his evident danger and all 
 the surrounding circumstances.* It is not essential that the 
 declarant expressly stated that he had no hope of recovery, or 
 was going to die. It is sufficient if it satisfactorily appears in 
 any mode that the declarations were made under a sense of 
 impending death ; ^ and the expression by deceased of a belief 
 tiiat he was going to recover, made several hours after his 
 
 1 People V. Green, 1 Park. Crim. v. Banister, 35 S. C. 390; Miller v. 
 Rep, 11; Com. V.Casey, 11 Cusli. 417; State, 37 Tex. App. 63; Temple v. 
 Kilpatrick v. Com., 31 Pa. St. 198; State, 15 Tex. App. 304; Puryear's 
 White V. State, 111 Ala. 93 ; Berry v. Case, 83 Va. 51 ; Sullivan v. Com., 93 
 State, 63 Ark. 383. Pa. St. 284, 396 ; State v. Patterson, 
 
 2 Mattox V. United States, 146 U. S. 45 Vt. 308 ; West v. State, 7 Tex. App. 
 140; United States v. Schneider, 21 150. 
 
 Wash. L. Rep. (D. C.) 45; Com. v. ■•Com. v. Matthews, 11 Ky. L. Rep. 
 
 Mika, 171 Pa. St 273; State v. Gay, 505; Hussey v. State, 87 Ala. 121. 
 18Mt)nt51. 5 State v. Russell, 13 Mont. 164; 
 
 ' Pulliam V. State, 88 Ala. 1 ; Hus- Com. v. Cooper, 5 Allen, 495 ; Mout- 
 
 sey V. State, 87 id. 131; People v. gomery v. State, 11 Ohio, 424; Morgan 
 
 Lanogan,81 Cal. 143; State v. John- v. State, 31 Ind. 193; People v. Crun- 
 
 son, 36 S, C. 153; 1 Greenl. Ev.,gl56; zig, 1 Park. C. R. 299; Brakefield v. 
 
 Whart. Horn., §g 743, 775 ; State v. State, 1 Sneed, 315 ; Lewis v. State, 9 
 
 Cornish, 5 Harr. (Del.) 503; Bull v. Sm. & M. (Miss.) 115; Dunn v. State, 
 
 Com., 14 Gratt. 613 ; People v. Hodg- 2 Pike, 339 ; People v. Sanchey, 34 
 
 don, 55 Cal. 73; Hill v. State, 41 Ga. Cal. 17; Murphy v. People, 37 III. 447, 
 
 484; Dixon v. State, 13 Fla. 636; 456; Kilpatrick v. Com., 31 Pa. St. 
 
 State V. Simon, 50 Mo. 370; State v. 198, 315; Hill v. Com., 2 Gratt, 594, 
 
 Swift, 57 Conn. 496; Archibald v. 601; Dumas v. State, 63 Ga. 58 ; Mills 
 
 State, 133 Ind. 122; State v. O'Brien, v. State, 74 Ala. 21 ; Com. v. Roberts. 
 
 81 Iowa, 88; Peak v. State, 50 N. J. 108 Mass. 296; Com. v. Haney, 137 
 
 179; State v. Pool, 30 Oreg. 150 ; State Mass. 455 ; Com. v. Brewer, 164 id. 577. 
 
452 EULBS OF EVIDENCE. 
 
 dying declaration, is not admissible to show that such declara- 
 tion was made M'hile he had a hope of recovery.' It is the 
 impression of impending death, and not the rapid succession 
 of it, which renders dying declarations admissible.^ Thus, 
 sufficient ground is laid for the admission of declarations, 
 where they were made less than two days after the wounding 
 and six hours before death ensued, after deceased had been 
 told by his phj'sician that he must die, whereupon he said he 
 iiad no hope of recovery ; ^ or that he has to die, and that a 
 person named " has killed him." * The fact that the written 
 •statement is sworn to does not render it inadmissible.' State- 
 ments made by an injured party at different times are all ad- 
 missible as dying declarations, if they were made under a 
 sense of impending death.^ Declarations of one who had been 
 shot, made a few days after the shooting, at a time when he 
 ifelt conscious of approaching death and believed there was no 
 hope of recovery, are admissible, although he lived a month 
 after they were made.' They are competent' if made after 
 •the attending physician has told the person that the chances 
 
 ■ are all against him, or where the deceased stated that he was 
 ■dying.^ 
 
 § 11. Preliminary examination. — It is always a prelimi- 
 nary question for the trial judge whether dying declarations 
 ■offered by the prosecution in a trial for murder were made 
 -under such a sense of impending death as to render them com- 
 petent. It is a question of judicial discretion how far the court 
 will go in hearing the evidence of such declarations in order 
 to ascertain the mental condition of tiie declarant, and it is 
 said not to be error to allow the evidence on such preliminary 
 
 ■ examination to be taken in the presence of the jurj'', if the 
 court afterwards instructs them as to what is actually received 
 as competent for them to consider. In People v. Smith' the 
 court said that it was error to receive evidence of declarations 
 
 - 1 Stata V. ShaflEer, 23 Oreg. 555. 6 Turner v. State, 89 Tenn. 547 ; Peo- 
 
 2Pulliam V. State, 88 Ala. 1 ; Archi- pie v. Benimerly, 87 Cal. 117. 
 
 bald V. State, 133 Ind. 133 ; Carver v. OHines v. Com., 11 Ky. L. Rep. 865; 
 
 ■United States, 160 U. S. 553; State v. State v. Baldwin, 15 Wash. 15. 
 
 Smith, 48 La. Ann. 533. '' Fulcher v. State, 28 Tex. App. 465. 
 
 3 State V. Nelson, 101 Mo. 464. s state v. Welsor, 117 Mo. 570 ; State 
 
 estate V. Bradley, 34 S. C. 136; v. Umble, 115 Mo. 453; Evans v. State, 
 
 Whitev. State, 30 Tex. App. 653. 58 Ark. 47. 
 
 9 104 N. Y. 491. 
 
HEARSAY EVIDENCE. 453^ 
 
 in the presence of the jury other than those that may go to 
 the jury as dying declarations, and where this is done upon 
 the trial, such error is not cured by striking them out and di- 
 recting the jury to disregard them. That this position, stated 
 as a general guidance of trial judges in exercising their discre- 
 tion, is proper, need not be doubted; but the inquiry will re- 
 main in each case, under its own peculiar circumstances, how 
 far the examination should extend in order to ascertain with 
 accuracy and reasonable certainty the mental condition and 
 belief of the declarant. 
 
 § 12. Competency of declarations.— Lack of religious belief 
 does not exclude dying declarations,^ and a witness to a dying 
 declaration cannot be impeached by showing deceased's opin- 
 ion of him.2 The declarant may be impeached or discredited 
 in any way that a witness may be impeached,' and his dying 
 declarations may be corroborated b}' proof of prior consistent 
 statements, though the latter are not admissible themselves as 
 dying declarations.'' The declarant must have been competent 
 to testify to the declaration if alive,^ and if the declarant is toa 
 young to understand the idea of a future state the whole dec- 
 laration will be inadmissible.^ The dying declarations of 
 husband or wife are admissible against each other.' It is im- 
 material that the declaration is made in answer to questions 
 which are objectionable as leading.* Dying declarations do' 
 not infringe the prisoner's constitutional right to be confronted 
 with the witnesses against him.' The declaration must be con- 
 fined to the circumstances which led to the declarant's death 
 
 iHill V. State, 64 Miss. 431; Com. Ben v. State, 37 Ala. 108; Goodall v. 
 
 0. Matthews, 89 Ky. 287 ; Jones v. State, 1 Oreg. 338. 
 
 State, 52 Ark. 845; Boyle v. State, 97 'E. v. Pike, 3 C. & P. 598; R v. 
 
 Ind. 322. Druramond, 1 Lea. C. C. 337. 
 
 2 Maryland v. Baldwin, 112 U. S. 490. ' People v. Green, 1 Den. 614 ; Moore 
 
 3 Com. V. Cooper, 5 Allen, 495 ; More- v. State, 12 Ala. 764 ; State v. Belcher,, 
 lock V. State, 90 Tenn. 528; Goodall 13 S. C. 459. 
 
 V. State, 1 Oreg. 333 ; Walker v. State, 8 Vass v. Com., 3 Leigh, 786. 
 
 37 Tex. 366, 386; McPhersou v. State, 9 Miller v. State, 25 Wis. 384; Peo- 
 
 9 Yerg. 272 ; State v. Elliott, 45 Iowa, pie v. Glenn, 10 Cal. 32 ; State v. Nash, 
 
 486. 7 Iowa, 347 ; Brown v. Com., 73 Pa. 
 
 estate V. Blackburn, 80 N. C. 474, St. 821, 827, 328; Walston v. Com., 16- 
 
 61 Greenl. Ev., § 159; State v. Will- B. Mon. (Ky.) 15; Com. v. Casey, 12 
 
 iams, 67 N. C. 12; Wroe v. State, 20 Cush. 246; Campbell v. State, 11 Ga, 
 
 Ohio St 460 ; Whitely v. State, 38 Ga. 853 ; Eobbins v. State, 8 Ohio St. 131, 
 
 50, 70; Binns v. State, 48 Ind. 311; 103. 
 
454: EULES OF EVIDENCB. 
 
 and to such evidence thereof as the declarant would himself 
 have been competent to give in the witness-box; statements, 
 therefore, which are founded on hearsay will be rejected.^ 
 
 § 13. To material matters only. — To be competent as dying 
 'declarations the statements of the deceased must not only re- 
 late to the immediate circumstances of the transaction result- 
 ing in the injury, but must detail facts, and not the mere 
 opinion of the one making them.^ Such declarations are only 
 admissible as to matters about which the deceased would have 
 been competent to testify if sworn in the cause.^ 
 
 § 14. Declarations must be complete. — Only the substance 
 of the declaration need be given, provided the declaration is 
 complete in itself.* But in order to make djnng declarations 
 admissible, the declaration or statement must be complete in 
 itself; for if the declarations appear to have been intended by 
 the dying man to be connected with and qualified b\' other 
 statements, which he is prevented by any cause from making, 
 they will not be received.^ By "complete in itself" is meant 
 that the declarant's statement of any given fact shall be all he 
 intended to say as to that fact.*" When the declaration has 
 been committed to writing at the time it was made, it must 
 be produced or accounted for. If the deposition of the de- 
 ceased has been taken under the statute, but for any cause is 
 inadmissible as such, it is still, if made in extremis, admissible 
 as a dying declaration.' The substance of the declaration may 
 be given in evidence if the witness is not able to state the pre- 
 cise language used.' The declarations may be elicited by 
 questions and may be given by signs.' The circumstances of 
 
 1 R. V. Sellers (M. S,), Q. B., Coram 6 Com. v. Vass, 3 Leigh (Va.), 786; 
 
 Brooke. J., 1796; Can. Or. Law (3d State v. Crabtree, 111 Mo. 136. 
 
 ed.), 1828, p. 233. « Hall v. Com., 97 Ky. 322 ; State v. 
 
 2 Com. V. Matthews, 11 Ky. L. Eep. Patterson, 45 Vt. 308; McLean v. 
 
 505; State v. Elkins, 101 Mo. 344 State, 16 Ala. 673. 
 
 s Jones V. State, 71 Ind. 66 ; Brother- ^ State v. Banister, 35 S. C. 390 ; Rex 
 
 ton V. People, 75 N. Y. 159 ; United y. Woodcock, 1 Leach, C. C. 502. 
 
 States V. Heath, 19 Wash. L. Rep. sstarkey v. People, 17111. 17; Mont- 
 
 <D. C.) 818. gomery v. State, 11 Ohio, 434. 
 
 < Montgomery v. State, 1 Ohio, 424 ; 9 state v. Terrell, 13 Rich. (S. C.) 331 ; 
 
 Ward V. State, 8 Blackf. 101 ; McLean State v. Wilson, 23 La. Ann. 558; 
 
 V. State, 16 Ala. 672 ; Murphy v. Peo- State v. V/estfall, 49 Iowa, 328 ; Brown 
 
 pie, 37 111. 447 ; State v. Patterson, 45 v. Com., 73 Pa. St. 331 ; State v. Fitz- 
 
 Vt. 308 ; Vass v. Com., 3 Leigh, 786 ; hugh, 3 Oreg. 237 ; Brabston v. State, 
 
 State V. Nettlebush, 30 Iowa, 357. 68 Miss. 208 ; Hudson v. State, 3 Cold. 
 
HEARSAY EVIDENCE. 455 
 
 the death are the sole subject-matter of the declaration.* Tliey 
 may be in writing^ and may be given in reply to questions,' 
 or in a hypothetical form. Such evidence is not admissible on 
 the statutory charge of procuring an abortion, though death 
 result from the illegal act.* 
 
 The form of declaration is immaterial.' The declaration may 
 be made by a.ny mode of expressing thought.^ 
 
 § 15. Children — Dying declarations of. — The dying decla- 
 rations of a child of tender years will be rejected unless he ap- 
 pears to have that degree of religious knowledge which would 
 render his evidence receivable ; as likewise will those of an adult 
 whose character shows him to have been a person not likely to 
 be affected with a religious sense of his approaching dissolution.'' 
 
 § 16. Weight to be given dying declarations. — Dying 
 declarations are to be received with great caution, and, except 
 where the circumstances were such as to render it next to im- 
 possible that the deceased could be mistaken as to the crimi- 
 nating facts stated, juries should scan the statement with great 
 care.* Such declarations are open to impeachment in any of 
 the modes by which the evidence of the deceased could have 
 been impeached had he been alive and testifying. 
 
 355; state V. Wagner, 61 Me. 178; Com., 110 Pa. St. 100; Hudson v. State, 
 
 Com. V. Dunsmore, 13 Allen, 535 ; 3 Cold. 355. 
 
 Hurd V. People, 25 Mich. 405 ; Moore 5 state v. Cameron, 3 Chand. (Wis.) 
 
 V. State, 13 Ala. 764 172 ; People v. Glenn, 10 Cal. 33 ; State 
 
 'Ben V. State, 37 Ala. 103; State v. v. Tweedy, 11 Iowa, 350; Collier v. 
 
 Shelton, 2 Jones (N. C), 360 ; Leiber State, 20 Ark. 36 ; State v. Sullivan, 
 
 V. Com., 9 Bush, 11 ; Hackett v. Peo- 51 Iowa, 143 ; 1 Greenl. Ev., g 90 : State 
 
 pie, 54 Barb. 370; Donnelly v. State, v. Patterson, 45 Vt. 308; State v. Ar- 
 
 26 N. J. L. 463, 496; State v. Terrell, nold, 13 Ired. (N. C.) 184; Mockabee 
 
 12 Rich. (S. C.) 321; Wooten v. Wil- v. Com., 78 Ky. 380; Hamil v. State, 
 
 kins, 39 Ga. 233 ; Marshall v. Cliicago, 90 Ala. 577 ; Hines v. Com., 90 Ky. 64 ; 
 
 etc. R. R Co., 48 111. 475; Waldele v. Beets v. State, 1 Meigs (Tenn.), 106; 
 
 N. Y. Cent. etc. R. R, Co., 19 Hun, 69 ; People v. Vernon, 35 Cal. 49 ; Binns 
 
 Daily v. N. Y. etc. R. R. Co., 33 Conn. v. State, 46 Ind. 311. 
 
 356; State v. Saunders, 14 Oreg. 300; sCom. v. Casey, 11 Cush. 417, 431; 
 
 Mattox V. United States, 146 U. S. 140 ; Norfleet v. Com., 3 Fed. & St. Cr. Rep. 
 
 West V. State, 76 Ala. 898. 348; State v. Mace, 118 N. C. 1344; 
 
 estate V. Kindle, 47 Ohio St. 358; State v. Finley, id. 1161. 
 King V. State, 91 Tenn. 617 ; Drake v. '1 Phill. Ev., 243 (10th ed.) ; Apple- 
 State, 25 Tex.'App. 293. ton, Ev., 203, note (v). 
 
 'Hunniout v. State, 18 Tex. App. sjackson v. Kniffien, 3 Johns. 35; 
 
 498 ; Anderson v. State, 79 Ala. 5. State v. Evans, 134 Mo. 397 ; Bates v. 
 
 ^Peoplev. Davis, 56 N.Y. 95; State Com., 14 Ky. L. Rep. 177; State v. 
 
 V. Harper, 35 Ohio St. 78 ; Railing v. Banister, 35 S. C. 290. 
 
456 BOLES OF EVIDENCE. 
 
 III. DECLAEATIONS AGAINST INTEREST. 
 
 Declarations of a deceased person, made either orally or in 
 writing, are admissible if against or in derogation of tiis pecun- 
 iary or proprietary interest.' But such declarations are not 
 conclusive against a party, as they may be explained.^ The 
 declarant must be dead ; equivalent disability does not render 
 such declarations admissible.' Thus, inpapacity to testify is not 
 sufficient.* The "interest" must be proprietary or pecuniary.* 
 Such declarations must be made while owning the interest.* 
 In Massachusetts declarations against pecuniary interest, as 
 well as entries in the course of business, must be in writing and 
 consist of a book-entry.' In case of proprietary interest, how- 
 ever, oral declarations are admissible.^ 
 
 § 17. In general. — Sir J. Stephen, in his Digest of the Law 
 of Evidence," states the rule to be that "a declaration is 
 deemed to be relevant if the declarant had peculiar means of 
 knowing the matter stated, if he had no interest to misrepre- 
 sent it, and if it was opposed to his pecuniary or proprietary 
 interest.'" The whole of any such declaration, and of any other 
 statement referred to in it, is deemed relevant, although mat- 
 ters may be stated which were not against the pecuniary or 
 
 1 Livingston v. Arnoux, 56 N. Y. (New Bruns.) 544 ; Hurlburt v. Huil- 
 507, 519 ; Gilchrist v. Martin, 1 Bailey burt, 128 N. Y. 430. 
 
 Eq. (8. C.) 492; Beedy v. Maoomber, 3 pitch v. Chapman, 10 Conn. 8; 
 47 Me. 451 ; Peace v. Jenkins, 10 Ired. Rand v. Dodge, 17 N. H. 343, 3S9 ; 
 Law (N. C), 355 ; Ringo v, Richard- Currier v. Gale, 14 Gray, 504 ; Lowry 
 son, 53 Mo. 885 ; Field v. Boynton, 33 v. Moss, 1 Strobh. 63 ; Humes v. 
 Ga. 239 ; Coleman v. Frazier, 4 Rich. O'Bryan, 74 Ala. 64 : Trammell v. 
 (S. C.) 146; Taylor v. Gould, 57 Pa. St. Hudmon, 78 Ala. 223. 
 152; Hart v. Kendall, 83 Ala; 144; « Harri man v. Brown, 8 Leigh, 697? 
 Tyres v. Kennedy, 126 Ind. 533 ; Rob- Bowen v. Chase, 98 U. S. 254. 
 erts'Appeal. 136 Pa. St. 103; Williams 5 Com. v. Chattock, 1 Mass. 144; 
 V. Mower, 29 S. C. 332 ; Heidenheimer Tate v. Tate's Ex'rs, 75 Va. 532, 532 ; 
 V. Johnson, 76 Tex. 200; Gauton v. Ward v. Ward, 37 Mich. 253; Poor- 
 Size, 22 Q. B. (U. C.) 473; Perkins v. man v. Miller. 44 Cal. 269; West Md. 
 Towle, 59 N. H. 583 ; Ellis v. Harris, R. R Co. v. Manro, 33 Md. 380 ; Helm 
 106 N. G 395; Wilson v. Simpson, 80 v. State, 67 Miss. 563. 
 Tex. 379 ; Wilson v. Albert, 89 Mo. 6 Hutchins v. Hutchins, 98 N. Y. 5«. 
 537 ; Royal v. Chandler, 79 Me. 265 ; ' Framingham Manuf. Co. v. Bar- 
 Hosford V. Rowe, 41 Minn. 245; Mc- nard, 2 Pick. 532; Lawrence v. Kim- 
 Gee V. Blankenship, 95 N. C. 563; ball, 1 Met 524. 
 Bartlett v. Patton, 33 Va. 72 ; Turner sjiarcy v. Stone, 8 Cush. 4. 
 V. Dewan, 41 Q. B. (U. C.) 361. 9 Art. 28 ; Lester v. State, 37 Fla. 1 ; 
 
 2 Raymond v. Cummings, 1 P, & B. Carver v. United States, 164 U. S. 694. 
 
 lOGleador v. Atkins, 1 C. & M. 433. 
 
HEARSAY EVIDENCE. ioT 
 
 proprietary interest of the declarant ; but statement's not re- 
 ferred to in or necessary to explain sucii declarations are not 
 deemed to be relevant merely because they were made at the 
 same time or recorded in the same place." ^ 
 ■ § 18. Against pecuniary interest. — A declaration is against 
 the pecuniary interest of the declarant who makes it whenever 
 it has the effect of charging him with a pecuniary liability to 
 another or of discharging some other person upon whom he 
 would otherwise have a claim.^ It is immaterial that the dec- 
 laration may prove, in the circumstances which have happened 
 at the time when it is sought to be put in evidence, to be for the 
 interest of the declarant's estate, or even that it can be shown 
 by independent evidence to have been in truth for his interest 
 at the time when it was made, provided that standing by itself 
 it was at the time when it was made against his interest. 
 
 Any declaration made by one who is in possession of any 
 description of hereditament tending to limit his interest therein 
 to any less estate than the whole fee-simple is admissible in 
 evidence after his death as a statement against his proprietary 
 interest;^ and a fortiori if it shows that he has no interest in 
 the land whatever.^ This is based on the well-known rule of 
 law that a person in possession of land is presumed, until the 
 contrary appears, to be the owner thereof in fee-simple.* The 
 rule, therefore, is not applicable where the declaration simply 
 relates to the limits of the land occupied by the declarant, since 
 there is nothing to show that it is more against his interest to 
 deny his possession of one close than it is to assert his posses- 
 sion of another.^ 
 
 It would seem that the same tests which have been stated 
 in regard to admissions must be applicable here, namely, tha,t 
 the statement which is sought to be given in evidence as a 
 part of the main statement must, if antecedent, have been in- 
 corporated in it by reference, and, if contemporary, have been 
 
 > Doe V. Bevis, 7 C. B. 456 ; Higham R v. Birmingham, 21 L. J. M. C. 63 ; 
 
 V. Ridgeway, 2 Smith's L. C. 318; E. t. Exeter, L. R. 4 Q. B. 341. 
 Stea^ V. Heaton, 4 T. R 669. « Gery v. Rodman, 1 Q. B. D. 161. 
 
 2Doe V. Robson, ISEast, 32; Davis ^\A.\ Fry v. Stovers, 92 Va. 13; 
 
 V. Lloyd, 1 C. & K. 275 ; Hughes v. Higli v. Pancake, 42 W. Va. 602 ; 
 
 Delaware & H. Canal Co,, 176 Pa. St. Humes v. Proctor, 151 N. Y. 520; 
 
 254. Ward v. Cochran, 71 Fed. Rep. 127. 
 
 3 Peaceable v. Watson, 4 Taunt. 16 ; ^ Crease v. Barrett, 1 C, M. & R 
 
 919, 931. 
 
45 S BOLES OF EVIDENCE. 
 
 virtually parcel of it. Accordingly, it is well settled that it is 
 not admissible to give in evidence the discharging items en- 
 tered in an account-book unless they are referred to in some 
 entry against the declarant's interest upon the charging side 
 of the account, or the two formed one contemporaneous state- ■ 
 ment.^ 
 
 Where the fact that the declaration is against the declarant's 
 interest does not clearly appear from the statement itself, as, 
 for instance, where it does not show the declarant's character, 
 without which it is not clear on what account or in what right 
 the money was received, it is permissible to give independent 
 evidence to supply this want, as by proving that the declarant 
 was an agent or receiver on behalf of another, or that the 
 money paid to him was not a gift, but in discharge of a legal 
 claim. Slight evidence will often be sufficient for this purpose. 
 It may be that the book in which the entries occur clearly pur- 
 ports by its title or general character to be the book of a stew- 
 ard or receiver.^ 
 
 A declaration against interest may be in writing or oral.' If 
 it be in writing it is not necessary that it should have been 
 signed, if it can be shown either that the body of it was writ- 
 ten by the person whom it purports to charge,* or that it has 
 been adopted by the person whom it charges, in whosoever 
 handwriting it may bc,^ and in the latter case it is not nec- 
 essary to call the agent who wrote it.^ l^or is it necessary 
 that such declarations should be contemporaneous with the fact 
 recorded ; it is sufficient that they are made at any subsequent • 
 time.' 
 
 With regard to the indorsement of payments of interest 
 upon bonds and negotiable instruments, it is evident that where 
 the indorsement is of such date as, if admitted as evidence, to 
 have the eflFect of preventing the operation of the statute of 
 limitations, the entry is not wholly against the interest of the 
 
 1 Rowe V. Brention, 3 M. & R 267 ; 63 ; Bowley v. Atkinson, 13 Ch. D. 
 
 Williams v. Geaves, 8 C. & P. 598; 283. 
 
 Knight V. Waterfoi-d, 4 Y. & C. 283; * Barry v. Bebbington, 4 T. B. 514; 
 
 Doe V. Bevis, 7 C. B. 456 ; Higham v. Exeter v. Warren, 5 Q. B. 773. 
 
 .Uidgeway, 2 Sm. L. C. 318; Stead v. 5 id. ; Doe v. Hawkins, 2 Q. B. 213. 
 
 Heaton, 4 T. R. 669. 6 Id. 
 
 2 Exeter v. Warren, 5 Q. B. 773; 'Doe v. Furford, 3 B. & Ad. 890, 
 
 Doe V. Michael, 17 Q. B. 276. 897, 898. 
 
 3 E. V. Birmingham, 31 L. J. M. C. 
 
HEAESAT EVIDENCE. 459 
 
 party making it, since, although it acknowledges the payment 
 of the interest, such payment has the effect of preventing the 
 claim to the capital sum from being barred. It is not clear 
 Avhether by the common law such indorsements require corrob- 
 oration; the balance of authority appears to be in favor of 
 their being admissible without it, however the weight of such 
 evidence may be affected by the circumstances referred to.^ 
 Such declarations may, like admissions, take the form of con- 
 duct; that is, such conduct as is consistent only with the declar- 
 ant's holding an opinion adverse to his ownership of the fee- 
 simple in the property.^ 
 
 § 19. Conditions precedent to admissions. — Mr. Greenleaf 
 says: "To render declarations against interest admissible ex- 
 cept in suits to which the declarant is a party, it must first 
 be shown that he is dead and that the statement or entry 
 should be against the interest of the declarant. The amount 
 of pecuniary interest is not important; it is sufficient if, at 
 the time the declaration or entry was made, it charged the 
 person making it to any extent.^ To render the declaration 
 of a deceased person admissible as evidence it must appear 
 that the declarant is deceased; that he possessed competent 
 knowledge of the facts or that it was his duty to know them ; 
 and that the declarations were at variance with his interest."* 
 This class embraces not only entries in books, but all other 
 declarations or statements of facts, whether verbal or in writ- 
 ing, and whether made at the time of the fact declared or at 
 a subsequent day.^ Thus, where entries have been made by a 
 deceased person in the due course of business in his books, such 
 entries are admissible to prove the facts. But a written state- 
 ment of the facts in a disputed cause is not admissible after 
 the death of the writer simply because entered in a book.* 
 An entr\' in the shop-books of one who repaired a wagon, but 
 who has since died, showing a charge against the owner of the 
 
 iRose V. Bryant, 3 Camp. 321; Cliouteau, 10 Barb. 203; Smith v. 
 
 Smith V. Battens, 1 Moo. & Rob. 341 ; Maine, 25 id. 33 ; Harris v. Clark, 3 
 
 Anderson v. Weston, 6 Bing. N. C. N. Y. 93 ; Pike v. Hays, 14 N. H. 19. 
 
 296. 5 Pearce v. Jackson, 10 Ired. (N. C.) 
 
 2Gery v. Redman, 1 Q. B. 161. 355. 
 
 •■"Rex V. Worth, 4 Q. B. 132. ^Horton v. Wood, 66 Hun, 632, 50 
 
 *1 Greenl. Ev., § 147; White v, N. Y. State Rep. 679. 
 
460 KULES OF EVIDENCE. 
 
 wagon for a number of spokes, is admissible in favor of such 
 owner against a railroad company, where the character or ex- 
 tent of an injury to a wheel by collision with a locomotive is 
 in dispute.^ 
 
 § 20, Declarations of deceased grantor. — Declarations of 
 a deceased grantor made when in possession of real estate, jn 
 reference to his title thereto and against his interest, may be 
 given in evidence even in actions between third parties.'' A 
 distinction is made between declarations against interest and 
 those made by one in privity of estate. In the first case the 
 evidence is admissible without privity of estate, and hence the 
 declarations must be not only against interest, but the declar- 
 ant must be dead ; while in the case of declarations by one 
 in privity of estate, the declarations are admissible whether 
 the declarant be alive or dead. In Pependick v. Bridgewater' 
 it was held that the declarations of a deceased tenant as to 
 the non-existence of a right of common on the part of the 
 owner of the land occupied by such tenant were not admis- 
 sible, for the reason that the tenant could not derogate from 
 the right of the landlord or owner of the fee by any declara- 
 tion he might make. The case was stated to be in effect an 
 exception to an exception. Lord Campbell, C. J., in stating 
 the rule, said, generally, any declaration of a deceased person 
 on a matter with which he is acquainted, made against his 
 interest, is admissible in evidence. But the learned chief jus- 
 tice continued by saying that an exception to this rule was 
 that you cannot admit in evidence the declaration of a tenant 
 which derogates from the title of a reversioner. The distinc- 
 tion is taken between declarations against interest and those 
 made by one in privity of estate. The court receives decla- 
 rations of a deceased person against his interest because of 
 the likelihood of their being true, of their general freedom 
 from any reasonable probability of fraud, and because they 
 cannot be set up or proven until the death of the party mak- 
 ing them.* An entry or memorandum made by a deceased 
 person against his interest, found in his books and papers, is 
 
 1 Lassone v. Boston & L, R. Co. 3 5 El. & Bl. 166. 
 
 (N. H.), 46 Alb. L. J. 273. ■'Govin v. De Miranda, 140 N. Y. 
 
 2 Lyon V. Eickon, 141 N. Y. 335. 474; 1 Whart. Ev., § 128. 
 
HEAESAY EVIDENOB. 461 
 
 admissible against his estate in favor of a party seeking to es- 
 tablish the fact stated.! 
 
 § 31, Declarations of decedent against his represonta- 
 tlves^ — The declaration of a deceased party to a written in- 
 strument, made to a third person prior to the execution of 
 the instrument, and offered to be proved at the trial for the 
 purpose of impeaching and annulling that instrument for the 
 fraud of the deceased, but which was not communicated by 
 the witness to the other parties, is but hearsay evidence, and 
 that too of an extremely dangerous character ; and when stand- 
 ing alone, and not merely in aid of direct evidence, is incom- 
 petent to destroy the validity of the writing.^ 
 
 § 22. Declarations of testator as to contents of lost will. — 
 When there is a question as to the contents of a lost will, the 
 declarations of the deceased testator as to its contents are 
 ■deemed to be relevant, whether they were made before or 
 after the loss of the will.' Declarations of a testator, both be- 
 fore and after making his will, are admissible to show the 
 «xistence of a delusion, or his mental condition, or that the will 
 was induced by fraud and undue influence.'' Declarations of 
 a deceased person as to his intent in making a deposit in the 
 name of another with himself as trustee, and his reasons there- 
 for, are admissible in favor of the beneficiary against the ad- 
 ministrator of such person.' 
 
 § 23. Donor. — Declarations of a voluntary trustee under a 
 trust created by himself, made after its creation, are inadmis- 
 sible to affect it, when no power of revocation was reserved.* 
 
 IV. MEMOEANDA. 
 
 § 24. Entries by a public officer from reports by other 
 officers. — A declaration is deemed to be competent when it 
 was made by the defendant in the ordinary course of business, 
 
 • Gallagher v. Brewster, 153 N. Y. McDonald v. McDonald, 143 Ind. 55 ; 
 
 364 Sheehan v. Kearny (Miss.), 35 L. R. A. 
 
 2 Hard v. Ashley, 63 Hun, 634, 44 102 ; Lurie v. Radnitzer, 166 111. 609. 
 N. Y. State Rep. 795. 5 Ducker v. Whitson, 113 N. C. 444 ; 
 
 3 3 Redf. Wills, 15 4 1 Whart. Ev., Re Brown's Estate, 65 Vt 331; Per- 
 §139. kins V. Hasbrouok, 155 Pa. St. 494; 
 
 1 Haines v. Haydeu, 95 Mich. 333 ; Reggs v. Powell, 143 111. 453 ; Re 
 
 Hindman v. Van Dyke, 153 Pa. St, Eobb's Estate, 37 S. C. 19. 
 
 343; Calkins V. Calkins, 113 Cal. 396; i* Connecticut River Sav. Bank v. 
 
 Kilpatrick v. Jenkins, 96 Tenn. 85; Albee-, 64 Vt. 571. 
 
462 EULES OF EVIDENCE. 
 
 or in the discharge of professional duty, at or near the time 
 when the matter stated occurred, and of his own knowledge.* 
 A material ultimate fact may be proved by the evidence of a 
 witness who, having no personal recollection of the fact at 
 the time of his examination as a witness, testifies that he 
 made, or saw made, an entry of the fact at the time or re- 
 cently thereafter, which, on being produced, he can verify as the 
 entry he made or saw, and that he knew the entry to be true 
 when made; and such ultimate fact may be proved by show- 
 ing by a witness that he knew the facts in relation to the mat- 
 ter which is the subject of investigation, and communicated 
 them to another at the time but had forgotten them, and sup- 
 plementing this testimony b}"^ that of the person receiving the 
 communication, to the effect that he entered at the time the 
 facts communicated, and by the production of the book or 
 memorandum in which the entries were made. The admissi- 
 bility of memoranda of the first class is well settled. They are 
 admitted in connection with and as auxiliary to the oral evi- 
 dence of the witness, and this whether the witness, on -seeing 
 the entries, recalls the facts, or can only verify the entries as a 
 true record made or seen made by him at or soon after the 
 transaction to which it relates.^ The other branch of the propo- 
 sition has not been very generally adjudicated in the several 
 states, although the admissibility of entries made under such 
 circumstances was apparently approved in Payne v. Hodge' 
 and Mayor, etc. of IST. Y. v. Second Ave. E. Co.* Thus, an ac- 
 count kept in the ordinar}' course of business of laborers em- 
 ployed in the prosecution of a work, based upon daily reports 
 of foremen who had charge of the men, and who, in accordance 
 with their duty, reported the time to another subordinate of 
 the same common master, but of a higher grade, who in time 
 also, in accordance with his duty, entered the time as reported, 
 is admissible if verified by the evidence of the foremen that 
 they made true reports, and of the person who made the en- 
 tries that he correctly entered them. It seems, however, that 
 the account must have been made in the ordinary course of 
 business, and that it should not be extended so as to admit a 
 
 1 Doe V. Tui-Sord, 3 B. & Ad. 898. Zinc & I. Co. v. Lehigh Zinc & I. Co., 
 
 2 Halsey v. Sinsebaugh, 15 N. Y. 485 ; 59 N. J. L. 189. 
 Guy V. Mead, 23 id. 463; Imhoff v. 3 71 N. Y. 598. 
 Kiohards, 40 Neb. 590 ; New Jersey * 103 N. Y. 573. 
 
HBAESAT EVIDENCE. ~ 463 
 
 mere private memorandum, not made in pursuance of any duty 
 owing by the person making it, or when made upon informa- 
 tion derived from another who made the communication casu- 
 ally and voluntarily, and not under the sanction of duty or 
 other obligation.^ 
 
 V. SHOP-BOOKS, ACCOUNT-BOOKS, ETO. 
 
 § 25. In general. — A general rule prevails in this country — 
 adopted, it is said, from the law of Holland — that the books 
 of a tradesman or other person engaged in business, contain- 
 ing items of account, kept in the ordinary course of book ac- 
 counts, are admissible in favor of the person keeping them, 
 against tlie party against whom the charges were made, after 
 the following preliminary facts have been shown, viz. : 1. That 
 the books offered are his books of account kept in the regular 
 course of business. 2. That there was a course of dealing be- 
 tween the parties. 3. That some article or service charged 
 was actually furnished. 4. That the party had no clerk or 
 book-keeper. 5. That he kept fair and honest accounts. The 
 rule admitting account-books of a party in his own favor in 
 any case was a departure from the ordinary rules of evidence. 
 It was founded upon a supposed necessity, and was intended 
 for cases of small dealers who kept no clerks, and was confined 
 to transactions in the ordinary course of buying aiid selling or 
 the rendition of services. The rule admits only transactions 
 of small amount, usually ten dollars,^ and does not extend to 
 the proof of more important or merely collateral matters.^ The 
 declarant must be a tradesman or handicraftsman and the en- 
 tries in the usual course of daily business.* The rule extends 
 to books of account kept by attorneys and other professional 
 men.* And secondary evidence of the original entries is ad- 
 
 iPeck V. Valentine, 94 II Y. 569; Lynch v. Cronan, 6 Gray, 531 ; Wil- 
 
 Congdon & A. Co. v. Sheehan, 11 App. mer v. Israel, 1 Browne (Pa.), 257; 
 
 Div. 456. Somers v. Wright, 114 Mass. 171. 
 
 ^Burns V. Fay, 14 Pick. 8, 13; Bus- ^Shoemaker v. Kellogg;, 11 Pa. St 
 
 tin V. Rogers, 11 Cush. 346 ; Davis v. 310 ; Karr v. Stivers, 34 Iowa, 123 ; 
 
 Sanford, 9 Allen, 216 ; Kelton v. Hill, Carman v. Dunham, 5 Halst. 189 ; 
 
 58 Me. 114; Alexander v, Smoot, Cole v. Dial, 8 Tex. 347 ; Boyd v. Lad- 
 
 13 Ired. (N. C.) 461 ; Rich v. Eldredge, son, 4 McCord, 76. 
 
 43 N. H. 153; Charlton v. Lawry, 1 5 Charlton v. La wry, 1 Mart. (N. C.) 
 
 Mart. (N. C.) 36; Duooign v. Schrep- 26; Briggs v. Georgia, 15 Vt. 61; 
 
 pel, 1 Yeates, 347. Codman v. Caldwell, 31 Me. 560 ; Bay- 
 
 SRindge v. Brock, 10 Cush. 43; v. Cook, 33 N.J. L. 343; Toomer v. 
 
464 EULES OF EVIDENCE. 
 
 missible on the ordinary principles of documentary evidence. 
 In these cases some protection against fraudulent entries is 
 afforded in the publicity which to a greater or less extent at- 
 tends the manual transfer of tangible articles of property or 
 the rendition of services, and the knowledge which third per- 
 sons may have of the transactions to which the entries relate. 
 It would be unwise to extend the operation of the rule admit- 
 ting a party's books in evidence beyond its present limits.^ 
 The rule above has no application to the case of books or en- 
 tries relating to cash items or dealings between the parties, 
 and the same necessity does not exist in respect to cash trans- 
 actions; moreover, entries of cash transactions could be fabri- 
 cated with much greater safety and with less chance of the 
 fraud being discovered than entries of goods sold and delivered 
 or of services rendered.^ Account-books are always evidence 
 against the party keeping them without any preliminary proof.' 
 But under the above rule a bank's ledgers are not admissible in 
 evidence in its own behalf in an action for an alleged deposit.* 
 But where books of original entry have been destroyed by fire, 
 the items therein may be proved from the ledger.' Whether 
 the books of a party are admissible or not, he may lise them 
 as memoranda to refresh his memory; and any tribunal is 
 quite apt to give additional weight to the evidence of the party 
 which is sustained by the entries of the event, recorded at the 
 time of the occurrence.* 
 
 In ISTew York it is not essential to produce the party him- 
 self as a witness;^ but it is necessary to show: 1. That the 
 books offered are his books of account, kept in the regular 
 course of business. 2. That there was a course of dealing. be- 
 
 Dadsden, 4 Strobh. (S. C.) 193 ; Ganahl i Porter v. County F. Nat. Bank of 
 
 V. Shore, 24 Ga. 17 ; Richardson v. Williams, 4 Ind. App. 501 ; Ahl v. 
 
 Dorraan, 28 Ala. 679 ; Hale v. Ard, 48 Ahl, 176 Pa. St 466. 
 
 Pa. St. 22. 5McCrady v. Jones, 36 S. C. 136; 
 
 1 Smith V. Bentz, 131 N. Y. 169, 43 .Stillwater v. Fairvvell, 64 Vt. 286; 
 N. Y. State Rep. 879. Chatauga Ore & I. Co. v. Blake, 144 
 
 2 Vosburgh v. Thayer, 12 Johns. 461. U. S. 476. 
 
 3 Adams v. Olen, 64 Hun, 268, 46 6 Strand v. Tilton, 4 Abb. Ct. App. 
 N. Y. State Rep. 836; McCain v. Dec. 324; Robinson v. Smith, 111 Mo. 
 Peart, 145 Pa. St. 516 ; Powers v. 305 ; Muckle v. Rennie, 41 N. Y. State 
 Savin, 139 N. Y. 652 ; Taylor v. Davis, Rep. 97. 
 
 82 Wis. 455 ; Smith v. Collins, 94 Ala. '' Tomlinson v. Borst, 80 N. Y. 43. 
 394. 
 
HKARSAY EVIDENCE. 465 
 
 tween the parties. 3. That some articles or services charged 
 were actually furnished. 4. That the party had no clerk or 
 book-keeper. 5. That he kept fair and honest accounts.' In 
 most jurisdictions such books must be verified by the supple- 
 mentary oath of the book-keeper, whether the party himself or 
 a clerk. If such book-keeper be deceased, proof of his hand- 
 writing or other verification is required.^ Disability practi- 
 cally equivalent to death will suffice to admit such secondary 
 verification.' In case such books are offered by other persons 
 suing in a representative capacity, it is usual to require the 
 additional oath of such executor or other person. If the books 
 are kept according to the usage and degree of intelligence of 
 the party it is sufficient. Thus, a notched stick kept for this 
 purpose was held to be a good book of original entries where 
 it was the only method by which a party kept his accounts;* 
 and so pieces of board sawed out of the party's corn-crib ; so 
 are scraps of paper; so are boards upon which the measure- 
 ments of lumber are marked by the one who cut and delivered 
 the lumber.' 
 
 In an action for services rendered, where there is evidence 
 tending to show that an account-book was made up from tal- 
 lies by employees in a mill, kept upon a planed shingle and 
 delivered to the persons keeping the book, who made entries 
 from them, the book is admissible.^ The account is not ex- 
 
 iSmith V. Bentz, 131 N. Y. 169, 45 Hintrager, 60 Iowa, 374; Hart v. Lir- 
 
 Alb. L. J. 213, 43 N. Y. State Hep. ingston, 39 Iowa, 217. 
 
 879; Knight V. Cummlngton, 6 Hun, ^Harwood v. Mulry, 8 Gray, 250; 
 
 100 ;. 1 Greenl. Ev., §g 117-119 ; 3 Marsh v. Case, 30 Wis. 531 ; Douglass 
 
 Dane's Abr., ch. 81, art. 4, p. 318 ; Hall v. Hart, 4 McCord, 257 ; Gilchrist v. 
 
 V. Gates, 12 Met 491 ; Karr v. Stivers, Brooklyn Grocers' Mfg. Ass'n, 59 N. 
 
 34 Iowa, 123; White v. Whitney, 82 Y. 495; Bartholomew v. Farwell, 41 
 
 Cal. 163; Baldridge v. Penland, 68 Conn. 109; Cheever v. Brown, 30 Ga. 
 
 Tex. 441 ; Linnell v. Sutherland, 11 904 ; Hoover v. Cehr, 62 Pa. St. 136 ; 
 
 Wend. 568 ; Burleson v. Goodman, 33 Patrick v. Jack, 83 111. 81 ; Robinson 
 
 Tex. 329; Davis v. Sanford, 9:Allen, v. Dibble's Adm'r, 17 Fla. 457; Gect 
 
 316-; Wilson v. Wilson, 1 Halst. 95 ; v. Garvin. 1 Gray, 148. 
 
 Terrill- v. Beecher, 9 Conn. 344; 3 New Haven, etc, Co. v. Goodwin, 
 
 Funkv. Ely, 45 Pa. St. 444; Myerv. 43 Conn. 330; Holtbrook v. Gay, 6 
 
 Graffln, 31 Md. 350; Burleson v. Cush. 315. 
 
 jGoodraan, 33 Tex. 228 ; Richardson ^ Rowland v. Barton, 3 Harr. (D.el.) 
 
 V. Emery, 33 N. H. 320; Robinson v. 288. 
 
 Dibble's Adm'r, 17 Fla. 457; Cooper spallman v. Smith, 135 Pa. St. 188. 
 
 V. Merrill, 4 Yeates, 341 ; Hancock v. « West v. Van Tuyl, 119 N. Y. 633, 
 
 28 N. Y. State Rep. 549. 
 30 
 
466 EULES OF EVIDENCE. 
 
 eluded because kept in ledger form, so that the charges against 
 defendant are on a separate page from those against others.' 
 But if shown not to be the book of original entries, it is not 
 competent without producing or accounting for those entries.'* 
 And if it appear that the books offered are a part of a system 
 of books involving others, which may be necessary to a com- 
 plete view of the state of accounts, the others must be pro- 
 duced or accounted for.' Thus, where the ledger is offered, a 
 day-book shown to have been kept must be produced. There 
 must have been some course of dealing between the parties: a 
 single sale is not sufficient.^ Independent evidence that some 
 article or service charged was furnished is indispensable.' One 
 article delivered and one item of work done, as charged, satisfy 
 this requirement.^ A party cannot testify from books of ac- 
 count kept partly by himself and partly by others.'' And un- 
 sworn accounts, purporting to be those of sales made by an 
 auctioneer at the request of the sheriff, which were not made 
 by the witness producing them, and are proven only to have 
 been rendered by the auctioneer to the sheriff, are not admis- 
 sible in evidence.' The above rule does not apply to admit 
 the books of a party to the suit, if they were kept by a regu- 
 lar clerk or book-keeper, whose business it was to notice sales 
 and enter them in the books.' But the books of daily entries 
 made by the party himself are not rendered incompetent by 
 the fact that his servant, porter or messenger noted in tem- 
 porary form the deliveries made by him, and reported them 
 to the party, who upon such information made the entries in 
 question.'" The books of a partnership may be proved by the 
 
 1 Faxon v. Hollis, 13 Mass. 438. 38 N. Y. State Rep. 354; The Norma, 
 
 2 Mandel v. Swan L. & C. Co., 154 08 Fed. Rep. 509 ; Granley v. Jermyn, 
 III. 177 ; Vilmar v. Schall, 35 N. Y. 163 Pa. St 501 ; Smith v. Smith, 13 
 Supr. Ct 67 ; Re Huston's Estate, 167 App. Div. 307. 
 
 Pa. St. 217. SMcIlhargy v. Chambers. 27 N. Y. 
 
 3 Pendleton v. Meed, 17 N. Y. 72; State Rep. 931, 117 N. Y. 538; Kohler 
 Larue v. Rowland, 7 Barb. 107. v. Lindenraeyer, 139 N. Y. 498, 35 
 
 * Corning v. Ashley, 4 Denio, 354 ; N. Y. State Rep. 633 ; Dooley v. Moau, 
 
 Re Fulton's Estate, 178 Pa. St. 78. 57 Hun, 535, 33 N. Y. State Rep. 118; 
 
 6 Morrill v. Whitehead, 4 E. D. Edgerton v. Willington & W. R Co., 
 
 Smith, 239; Sharp v. Hicks, 94 Ga. 115 N. C. 645. 
 624. 9 Sickles v. Mather, 20 "Wend. 73. 
 
 6 Linnell v. Southerland, 11 Wend. i" Hauptman v. Catlin, 1 E. D. Smith, 
 
 568. 729 ; Nichols v. Vinson, 9 Houst 374. 
 
 'Hancock v. Flynn, 54 Hun, 638, 
 
HEARSAY EVIDENCE. 467 
 
 partner who kept the books, or in case of his death by proof 
 of his handwriting.^ To show that the party kept fair and 
 honest books, the testimony of one witness is enough, who 
 had dealt with the party and settled with him by his account;^ 
 but he must be a customer. The rules relating to the admis- 
 sion of books of account in the different states are not uni- 
 form. In most of the states, if it appears that there is, in fact, 
 living attainable proof of the item, independent of the entries, 
 the latter are then inadmissible. The rule excludes the books 
 when better evidence of the facts is attainable, and the books 
 are admissible when from necessity they afford the best evi- 
 dence of the facts contained therein.' The rule of admission 
 of shop-books has no application to the case of books of entries 
 relating to cash items or dealings between the parties.* The 
 same necessity does not exist in respect to cash transactions as 
 to cases of transactions in the ordinary course of buying and 
 seUing or the rendition of services." 
 
 § 26. Time of entry material when. — To be admissible at 
 all, entries should be made at or near the time of the transac- 
 tion. The law fixes no precise instant. They are not to be 
 registers of past transactions, but memoranda of transactions 
 as they occur.^ A party to a contract, the terms of which 
 are in dispute, cannot give in evidence his own statements, 
 either oral or written, made subsequent to the contract, in 
 corroboration of his version of the contract.' It is no objec- 
 tion to a book that the entries were made by the party from 
 data furnished him by his workmen, if he knows the facts 
 therein stated; and 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.* The entry must be in the book of the party kept by 
 
 iKroa V. Levy, 1 Hun, 172. 6 Smith v. Bentz, 131 N. Y. 169, 43 
 
 SBeattie v. Qua, 15 Barb. 137; Irish N. Y. State Rep. 879. 
 
 V. Horn, 84 Hun, 121. « Ewing v. Sparks, 7 N. J. L. 59 ; 
 
 'Wheeler v. Smith, 18 Wis. 651; Bentley v. Ward, 116 Mass. 333. , 
 
 Ward V. Wheeler, 18 Tex. 349 ; Dodge ^ Griesheimer v. Tanenbaum, 134 
 
 v. Morrow, 14 Ind. App. 539 ; Ahl v. N. Y. 650, 36 N. Y. State Rep. 329. 
 
 Ahl, 176 Pa. St. 466; Bean v. Lambert, 8 Faxon v. Hollis, 13 Mass. 427; 
 
 77 Fed. Rep. 863 ; Riley V. Boehm, 167 Plummer v. Struby-Estabrooke M. 
 
 Mass. 183; Blanchard v. Commercial Co,, 33 Colo. 190; Moses v. United 
 
 Bank, 44 U. S. App. 556. States, 166 U. S. 571. 
 
 < Vosburg V. Thayer, 13 Johns. 461 ; 
 Hay V. Peterson, 34 L. R A. 581. 
 
468 EULES OF EVIDENCE. 
 
 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 the other charges. If 
 they stand isolated on the front leaf of the book, and not fall- 
 ing into a regular order with the other charges, they will be 
 rejected.^ An account properly in evidence is competent evi- 
 dence of the facts of sale, of the dates, of tho price or value, 
 and of the delivery.^ 
 
 VI. MEMORANDA AS EVIDENCE. 
 
 § 27. In general. — Memoranda of facts made by an eye- 
 witness at the time of the occurrence, and which he swears to 
 be correct, are not generally evidence,' except where they were 
 made in the due course of business and the person making 
 them is dead or has absconded, or for any cause his testimony 
 cannot be obtained, and then only of such facts as to which he 
 would be competent to testify if living.* Thus, a memoran- 
 dum is admissible in evidence without testimony of the person 
 Avho made it, where he is without the jurisdiction of the court 
 and his handwriting is proved.* A written memorandum 
 made by an ofHcer in the course of his official duty, which is 
 against his interest, is admissible after his death, as well of 
 facts against his interest as of other collateral and incidental 
 facts and circumstances contained in it." 
 
 § 28. Refreshing memory by. — A witness who has drawn 
 up a written narrative of a matter or transaction may in many 
 cases use it while under examinatiorf as a script to refresh his 
 memory.' In cases requiring many details of duty, quantity, 
 
 1 Re Fulton's Estate, 178 Pa. St 78; < Avery v. Avery, 48 Cal. 193; 
 
 White V. Benjamin, 150 N. Y. 258 ; Welsli v. Barrett, 15 Mass. 380 ; Briggs 
 
 Ahl V. Ahl, 176 Pa. St 466 ; Hazer v. v. Henderson, 49 Mo. 531 ; Cabot v. 
 
 Streich, 93 Wis. 505. Walden, 46 Vt 11. 
 
 - Batchelder v. Sanborn, 22 N. H. 5 Laboree v. Klosterraan, 83 Neb. 
 
 325 ; Dickens v. Winters, 169 Pa. St 150 ; Thomas v. Beal, 48 Fed. Rep. 618. 
 
 126; St Louis, I. M. & S. R Co. v. But see Granning v. Swenson, 49 
 
 Murphy, 60 Ark. 333 ; Wait v, Krew- Minn. 381. 
 
 son, 59 N. J. L. 71 ; Johnson v. More- * Livingston v. Arnoux, 56 N. Y. 
 
 stead, 63 Minn. 397 ; Divide Min. Inv. 507. 
 
 Co. V. Bliley. 23 Colo. 160. ' Hovrland v. Union Theological 
 
 3 Gilmore v. Wilson, 53 Pa. St 194 ; Sem., 5 N. Y. 219 ; Marclay v. Shults, 
 
 People V. Elyea, 14 Cal. 144; Golding 29 id. 351. 
 V. Orcutt 44 Vt. 541 ; Downs v. New- 
 York Cent R^ Co., 47 N. Y. 82. 
 
HEARSAY EVIDENCE. 469 
 
 etc., it is proper to allow a witness to consult, but not to read 
 from, memoranda made by him of facts within his own knowl- 
 edge, to which he cannot speak in sufficient detail without such 
 aid, although the memoranda were made in preparation for 
 trial ; that is to say, a witness may use a memoranda, or any book 
 or paper, to refresh his memory, if he can afterwards swear to 
 the fact from recollection ; but if he cannot so swear, other- 
 wise than as finding it in the book, then it must be produced.' 
 While the general rule is that memoranda of dates, names, 
 figures and values made by a witness at the time of the trans- 
 action to which they relate, and sworn to by him to have 
 been true statements when made, are admissible in evidence 
 in connection with his testimony, without regard to whether 
 or not they corroborate it,^ and that all memoranda made at 
 the time of the transaction are admissible to refresh the recol- 
 lection of a witness, although not as independent evidence,' 
 and that a witness may use a memorandum made by any per- 
 son, if, after inspecting it, he can testify to the facts from his 
 own recollection,* a paper referred to by a witness for the pur- 
 pose of refreshing his memory is inadmissible in the absence 
 of evidence that after reference he is unable to recollect the 
 facts.^ Thus, a witness may refer to his account books or his 
 cash book, or to letters written by himself relating to the 
 transaction, or even to a bill of particulars, or memorandum 
 not made by himself, if upon reading it he is then able to 
 recollect and testify to the facts contained therein.* But such 
 memoranda are not admissible in evidence unless they are of 
 a character, such as maps, diagrams or tabular statements, 
 reasonably necessary to render the testimony intelligible, and 
 are proven to be correct. In Howard v. McDonough' the 
 court say : " The law as to the use of memoranda by witnesses 
 while testifying is : (1) A witness may, for the purpose of re- 
 freshing his memory, use any memoranda, whether made by 
 himself or another, written or printed ; and when his mem- 
 
 iWood V. Ambler, 8 N. Y. 170; Co., 51 N. Y. State Rep. 635, 67 Hun, 
 
 Hazer v. Streich, 93 Wis. 505. 365. 
 
 2 Continental Ins. Co. v. Insurance * Meacham v. Pell, 51 Barb. 65 ; 
 
 Co. of .Pa., 51 Fed. Rep. 884 ; Gillespie Stuart v. Binnse, 7 Bosw. 195 ; People 
 
 V. Krator, 56 id. 203. v. McLaughlin, 150 N. Y. 365 ; Nor- 
 
 ' Williams v. Wager, 64 Vt. 326. walk, Fawcett v. Ireland, 68 Conn. 1 ; 
 
 <Culverv.S.&W.r,.Co.,53Minn.360. State v. Baldwin, 63 Minn. 518. 
 
 5 Voisin V. Commercial Mut Ins. ' 77 N. Y. 593. 
 
4:70 B0LES OF EVIDENCE. 
 
 ory has thus been refreshed, he must testify to facts of his 
 own knowledge, the memorandum itself not being evidence. 
 (2) When a witness has so far forgotten the facts that he can- 
 not recall them, even after looking at a memorandum of them, 
 and he testifies that he once knew them and made a memo- 
 randum of them at the time or soon after they transpired, 
 which he intended to make correctly, and which he believes 
 to be correct, such memorandum in his own handwriting may 
 be received as evidence of the facts therein contained, although 
 the witness has no present recollection of them. (3) Memo- 
 randa may be used in other cases which do not precisely come 
 under either of the foregoing heads. A store of goods is wrong- 
 fully seized, and an action is brought to recover for the con- 
 version. There are thousands of items. Ifo vritness could carry 
 in his mind all the items and the values to be attached to them. 
 In such a case a witness may make a list of all the items and 
 their values, and he may aid his memory, while testifying, by 
 such list. He must be able to state that all the articles named 
 in the list were seized and that they were of the values therein 
 stated ; and he may use the list to enable him to state the items. 
 After the witness has testified, the memorandum which he has 
 used may be put in evidence, not as proving anything of itself, 
 but as a detailed statement of the items testified to by the wit- 
 ness. The manner in which the memorandum, in such a case, 
 may be used is very much in the discretion of the trial judge. 
 He may require the witness to testify to each item separately, 
 and have his evidence recorded in the minutes of the trial, and 
 then the introduction of the memorandum will not be impor- 
 tant ; or he may allow the witness to testify quite generally 
 to the, items and their values, and receive the memorandum as 
 the detailed result of his examination, leaving to the adverse 
 party a more minute cross-examination.' In order to refresh 
 the recollection of a witness it is not important that the paper, 
 book or memorandum should have been written or printed by 
 the witness himself, or that it should have been an original' 
 writing. It is suflBcient if he saw it while the facts stated 
 therein were fresh in his memory, and knows that they are 
 correctly transcribed." ^ 
 
 iMcCormick v. Pennsylvania C. E. ^Chapin v. Lapliam, 20 Pick. 467; 
 Co., 49 N. Y. 303; Acklia v. Hickman, Huff v. Bennett, 6 N. Y. 837 ; George 
 63 Ala. 594, 35 Am. Rep. 54. v. Jay, 19 N. H. 544. 
 
HEAESAT EVIDENCE. 471 
 
 § 29. When memoranda must Ibe made Iby a witness. — A 
 
 memorandum used by a witness to refresh his memory and to be 
 allowed as evidence in the case must, as a general rule, have 
 been made by the witness himself — or by another person at his 
 dictation — at the time of the transaction concerning which he 
 is questioned, or so soon afterwards that the judge considers it 
 likely that the transaction was at the time fresh in his mem- 
 ory; or if made by any other person, and read by the witness, 
 within the same limits as to time, it must further appear that 
 when he read it he knew it to be correct.' A memorandum 
 which is proper under this rule, and is used accordingly, be- 
 comes competent, and may be read as evidence of the facts 
 testified to from it, if it bo the original entry, not a copy, and 
 if the witness' memory, after being refreshed, does not enable 
 him to testify to the facts without the memorandum.^ A copy 
 should not be used so long as the original is in existence and 
 its absence unexplained ; for the same rule requiring the pro- 
 duction of the best evidence is equally applicable whether a 
 paper is produced as evidence in itself, or is merely used to re- 
 fresh the memory. But after proof of the loss of the original 
 a copy may be read to the jury, not as evidence of the facts 
 contained in it, as in case of an original entry, but as a state 
 ment in detail of what the witness has testified directly.' 
 
 § 30. When witness need not have recollection independ- 
 ent of memorandum. — In order that a document maj^ be used 
 to refresh one's memory, it is by no means necessary that the 
 witness, after having seen it, should have any independent rec- 
 ollection of the facts mentioned therein or connected there- 
 with ; it is sufiicient if he remembers that he has seen the paper 
 before, and that when he saw it he knew its contents to be cor- 
 rect ; or even if, entirely forgetting the circumstances them- 
 selves and the fact of his having seen the paper, he can still, 
 in consequence of recognizing his signature or writing upon it, 
 vouch for the accuracy of the memorandum, or swear to the 
 particular fact in question.* 
 
 iFilkins v. Baker, 6 Lans. 518; *Guy v. Mead, 23 N. Y. 463; 
 
 Krom V. Levy, 1 Hun, 173. Meacham v. Pell, 51 id. 65 ; Marclay 
 
 ^Halsey v. Sinsebaugh, 15 N. Y. v. Shults, 29 id. 346; Anderson v, 
 
 465; Marclay v. Shults, 29 id. 348. Edwards, 133 Mass. 273. 
 
 ' McCormick v. Pennsylvania C. E. 
 Co., 49 N. Y. 316. 
 
472 EULES OF EVIDENCE. 
 
 § 31. Memoranda pi-imary evidence when.— Original en- 
 tries made by a witness are admissible as auxiliary to his evi- 
 dence only when he is unable to distinctly recollect the fact 
 without their aid. The rule which renders such entries ad- 
 missible rests upon the principle of necessity for the recep- 
 tion of secondary evidence, and is not applicable when the 
 witness has a distinct recollection of the essential facts to 
 which they relate. The primary common-law proof is then 
 furnished, and the necessity for evidence of the lesser degree 
 does not arise. And this right as qualified, to introduce such 
 secondary evidence, is the better rule in view of the oppor- 
 • tunity which otherwise might exist to superadd a written 
 memorandum to the evidence of a witness, which it cannot be 
 said might not sometimes be improperly made available to 
 strengthen his testimony with a court or jury; and such may 
 be within reasonable apprehension until the moral infirmity 
 of human nature becomes exceptionally less than it yet has.' 
 The only exception to this rule is where the memorandum is 
 part of the res gestae? Thus, the rule is that a memorandum 
 itself only becomes evidence when the witness, after examin- 
 ing it, although able to swear that he knew it to be correct 
 when he made it, is unable to state the particulars from recol- 
 lection.' Hence, in an action for goods sold, a witness who 
 testifies that he made correct original entries of the transac- 
 tion but has forgotten the transaction may be shown his orig- 
 inal entries and read them in evidence.'' The correctness of 
 the entries may be shown either by his testimony of his own 
 knowledge or his testimony that he entered correctly what 
 others told him, if such others are produced and testify that 
 they gave him correctly facts within their own knowledge.* 
 Thus, in Shear v. Yan Dyke,* a witness having testified that a 
 quantity which he had now forgotten, he had, at the time of the 
 delivery, reported correctly to another, the other was allowed 
 
 iPeoplev.McLaughliii,150N.Y.365. sPayne v. Hodge, 7 Hun, 612; 
 
 ,2Nat.UlsterCountyBankv.Madden, Dwight v. Cutting, 71 N. Y. State Rep. 
 
 114N.Y. 380, 33 N. Y. State Rep. 220. 114; L'Herbetts v. Pittsfield Nat. 
 
 3 People V. McLaughlin, 73 N. Y. Bank, 162 Mass. 137 ; Ryan v. Miller, 
 
 State Rep. 497 ; Kelsea v. Fletcher, 48 153 111. 138. 
 
 N. H. 283. 6 10 Hnn, 538; ImhofE v. Richards, 
 
 * Philbin v. Patrick, 3 Abb. Ct. App. 48 Neb. 590 ; Louisville & N, R Co. v. 
 
 Dec. 605, 9 Hun, 347 ; Ramsen v. Met- Cassibry, 109 Ala. 697. 
 ropolitan, etc. R. Co., 9 App, Div. 533. 
 
HEARSAY EVIDENCE. 473 
 
 to be called and testify what the quantity was thus reported. 
 So where a temporary memorandum, made by a witness who 
 had since forgotten what was written, had been destroyed by 
 another witness, who in the course of his duty transcribed it 
 in more permanent form, the latter was allowed to produce 
 his copy and testify to what he had transcribed.^ 
 
 Secondary evidence of the contents of a memorandum is in- 
 admissible, even after proof of its loss.^ Original entries made 
 by a witness, and which he testifies were correctly made, may 
 be read in evidence, though he remembers nothing of the facts 
 represented by them; but to render such entries admissible it 
 must appear that every source of primary evidence has been 
 exhausted. The rule which renders such entries admissible 
 rests upon the principle of necessity for the reception of sec- 
 ondary evidence, and is not applicable where the witness has 
 a distinct recollection of the essential facts to which they re- 
 late; the primary common-law proof is there furnished and 
 the necessity for evidence of the lesser degree does not arise. 
 The rule that entries made by a witness are not admissible un- 
 less it appear that he does not recollect the occurrence to which 
 they relate, independently of them, is quite well established in 
 this respect.' 
 
 The opposite party is entitled to inspect the memorandum 
 and examine concerning it, without putting the paper in evi- 
 dence; and if the court refuse to compel submitting the paper 
 to the inspection of the opposite counsel it should strike out 
 the testimony which depends entirely on the memorandum.* 
 A witness who has refreshed his memory by the use of a mem- 
 orandum made at the time of the transaction as to which he 
 is testifying may be allowed to read items from it as his tes- 
 timony, even when the memorandum is not put in evidence.* 
 Thus, where a party testifies that he knew that articles entered 
 in his account book were delivered to plaintiff, that the entries 
 were made at the time of the deliveries, and that he knew 
 
 1 Adams v. People, 3 Hun, 654 ; Cur- Chester & P. R Co. v. Chester County, 
 
 tis V. Bradley, 65 Conn. 99; New Jer- 182 Pa. St. 40. 
 
 sey Zinc & I. Co. v. Lehigh Zinc & I. ^ Peck v. Lake, 3 Lans. 436 ; Tib- 
 Co,, 59 N. J. L. 189. betts v. Sternberg, 66 Barb. 801 ; Re! 
 ^ Peck V. Valentine, 94 N. Y. 569. v. Ramsden, 3 Car. & P. 603 ; Hardy's 
 3 National U. Co. Bank v. Madden, Case, 24 How. St. Tr. 824. 
 23 Abb. N. C. (N. Y.) 118; Agnew v. SBigelow v. Hall, 91 N. Y. 145. 
 United States, 165 U. S. 36; West 
 
47i EULES OF EVIDENCE. 
 
 them to be correct when made, but that he could not from 
 memory tell the articles, he may state from the book the ar- 
 ticles delivered.! And after he has thus testified, the memo- 
 randum which he has used may be put in evidence, not as 
 proving anything of itself, but as a detailed statement of the 
 items testified to by the witness.^ 
 
 VII. EVIDENCE GIVEN IN A POEMBE PEOOEEDING. 
 
 § 32, In general. — Sir J. Stephen, in his Digest of the Law 
 of Evidence,' states the common-law rule to be, that "evidence 
 given by a witness in a previous action is relevant for the pur- 
 pose of proving the matters in a subsequent proceeding or in 
 a later stage of the same proceeding when the witness is dead, 
 or insane, or so ill that he will probably never be able to travel, 
 or is kept out of the way by the adverse party; or in civil, 
 but not, it seems, in criminal cases, is out of the jurisdiction 
 of the court, or perhaps in civil, but not in criminal cases, 
 when he cannot be found, provided in all cases : (1) That the 
 person against whom the evidence is to be given had the right 
 and opportunity to cross-examine the declarant when he was 
 examined as a witness. (2) That the questions in issue were 
 substantially the same in the first as in the second proceeding. 
 (3) That the proceedings, if civil, were between the same par- 
 ties or their representatives in interest. (4) That in criminal 
 cases the same person is accused upon the same facts." It is 
 held in some jurisdictions that the reported evidence of a de- 
 ceased witness is inadmissible in criminal cases and the pris- 
 oner is entitled to be confronted with the wi^tnesses against 
 him.* 
 
 The rule in this country seems to be that the testimony of 
 deceased witnesses given in a former action between the same 
 
 iRaux V. Brand, 90 N. Y. 309. Staples, 47 N. H. 113; Williams v. 
 
 ^McCormick v. Penn. C. R Co., 49 State, 19 Ga. 402; Kendrick v. State, 
 
 N. Y. 303 ; Howard v. McDonough, 77 10 Humph. 479 ; Bavis v. State, 17 
 
 id. 593; Stoudennie v. Harper, 81 Ala. Ala. 354; Pope v. State, 23 Ark. 372; 
 
 242 ; Bonnett v. Glattfeldt, 120 111. 166 ; United States v. Macomb, 5 McLean, 
 
 Finch V. Barclay, 87 Ga. 393 ; John- 286 ; Brown v. Com., 73 Pa. St 321 ; 
 
 son V. Culver, 116 Ind. 278; Robinson Summons v. State, 5 Ohio St 825; 
 
 V. Mulder, 81 Mich. 75. Barnett v. People, 54 111. 325 ; People 
 
 = Art 33. V. Murphy, 45 Cal. 137; Cora. v. 
 
 * Finn's Case, 5 Rand. 701 ; State v. Richards, 18 Pick. 434 ; State v. Able, 
 
 Atkins, 1 Overton (Tenn.), 239 ; Brogy 65 Mo. 357. 
 V. Com., 10 Gratt 722; State v. 
 
HEARSAY EVIDENCE. 475 
 
 parties is allowed as evidence in any subsequent suit between 
 the same parties;' and if the witness, though not dead, is out 
 of the jurisdiction, or cannot be found after diligent search, 
 or is insane or sick, or unable to testify, or kept away by the 
 adverse party,^ the testimony of such witnesses is allowed 
 in evidence in any subsequent proceeding.' Testimony thus 
 offered is open to all the objections which might be taken if 
 the witness were personally present.* This rule is limited in 
 New York, where it is held that where the witness is absent 
 from the state and not dead, his testimony taken on a former 
 trial cannot be read.' It is provided in most jurisdictions by 
 statute that when a party has died since the trial' of an action, 
 or the hearing upon the merits of a special proceeding, the tes- 
 timony of the decedent, or of any person who is rendered in- 
 competent by statute taken or read in evidence at a former trial 
 or hearing, may be given or read in evidence at a new trial or 
 hearing by either party, subject to any legal objection to the 
 competency of the witness, or to any legal objection to his 
 testimony or any question put to him. The testimony of any 
 witness who has died or become insane after a former trial or 
 hearing of a contested proceeding, a special proceeding or an . 
 action may be read upon the subsequent trial or hearing by 
 any party to such action or proceeding.* 
 
 1 Glass V. Beach, 5 Vt 72 ; Allen v. Hutohins v. Corgan, 59 111. 70 ; State 
 
 Chouteau, 103 Mo. 309 ; Rico E. & M. v. Johnson, 12 Nev. 121 ; State v. 
 
 Co. V. Musgrave, 14 Colo. 79 ; Cox Able, 65 Mo. 357 ; People v. Devine, 
 
 V. State, 28 Tex. App. 92. ' 46 Cal. 45 ; Pratt v. Patterson, 81 Pa. 
 
 2 Re Budlong's Will, 126 N. Y. 423, St 114; Ind. R Co. v. Stout, 58 Ind. 
 
 26 N. Y. State Rep. 883 ; Whitaker v. 143 ; Goodlett v. Kelly, 74 Ala. 215 ; 
 
 Marsh, 62 N. H, 477 ; Augusta & S. Solomon R. Co. v. Jones, 34 Kan. 443 ; 
 
 E. Co. V. Randall, 85 Ga. 295 ; Leeser Davis v. Kline, 96 Mo. 401 ; Slinger- 
 
 T. Borkhoff, 38 Mo. App. 445; Cald- land v. Slingerlaud, 46 Minn. 100; 
 
 well V. State, 28 Tex. App. 516 ; Wool- Thornton v. Britton, 144 Pa. St. 136 ; 
 
 enslagle v. Runeto, 76 Mich. 545 ; Patterson v. Bushane, 137 Pa. St 23 ; 
 
 Long V. Davis, 18 Ala, 801; Wilberv. Jaflfries v. Castelman, 75 Ala. 263. 
 
 Selden, 6 Cow. 162 ; Baron v. Crom- < Crary v. Sprague, 12 Wend. 41. 
 
 hie, 14 Mass. 334 6 Mut Life Ins. Co. v. Anthony, 50 
 
 3 1 Greenl. Kv., §§ 163-168 ; Johnson Hun, 101, 19 N. Y. State Rep. 38 ; State 
 
 V. Powers, 40 Vt 611 ; Orr v. Hadley, v. Conway, 56 Kan. 683; Woodruff 
 
 36 N. H. 575 ; Yale v. Comstock, 113 v. State, 61 Ark. 157 ; Mulcahey v. 
 
 Mass. 267; United States v. McComb, Lake Erie & W. R Co., 69 Fed. Rep. 
 
 5 McLean, 286; Ephraims v. Mur- 173. 
 
 dock, 7 Blackf. 10 ; Cleveland V. Huey, « United States v. Wood, 3 Wash. 
 
 18 Ala. 343 ; Earl v. Tupper, 45 Vt C. Ct 440 ; Bliss v. Long, Wright 
 
 275; Lane v. Brainerd, 30 Conn. 565; (Ohio), 351 ; Foster v. Shaw, 7 S. &E. > 
 
4:76 EULBS OF EVIDENCE. 
 
 § 33, Same parties — Cross-examination.— The aclraissi- 
 bility of this evidence turns rather on the right to cross-exam- 
 ination than upon the precise identity of all the parties. Such 
 testimony is admissible though the two trials are not between 
 the parties, if the second trial is between those who represent 
 the parties to the first by privity in blood, in law or in estate.' 
 The rule at common law is, in substance, that if a witness has 
 been examined in a legal proceeding between the same parties, 
 involving the same questions, although judgment in the former 
 action was taken by default in the absence of the adverse 
 party, in such a case that the counsel for either party could 
 have the right to cross-examine, then the evidence of such de- 
 ceased witnesses may be used.^ 
 
 § 34. Mode of proof. — It is sufficient if the witness is able 
 to state the substance of what was sworn to on the former 
 trial.' But he must state in substance the whole of what was 
 said on the particular subject Which he is called to prove. If 
 he can state only what was said on that subject by the de- 
 ceased on his examination in chief, without also giving the 
 substance of what he said upon it in his cross-examination, it 
 is inadmissible.* What the deceased witness testified may be 
 proved by any person who will swear from his own memory, 
 or by notes taken by any person who will swear to their ac- 
 
 156, 163 ; Wilbur v. Selden, 6 Cowen, ter v. Harris, 131 IIL 482 ; La Fayette 
 
 162; Cora. v. Richards, 18 Pick. 434; Mut. Bldg. Ass'n v. Kleimhoffer, 40 
 
 Warren v. Nichols, 6 Mete. 261 ; Mo, App. 388. 
 
 Marsh v. Jones, 21 Vt. 378 ; Ephraims 2 Bradley v. Mirick, 91 N. Y. 395 ; 
 V. Murdock, 7 Blackf. 10; Ruch v. State v. Hooker, 17 Vt. 658; United 
 Rock Island, 97 U. S. 693 ; Johnson v. States v. Macomb, 5 McLean, 386 ; Da- 
 Powers, 40 Vt. 611; Lime Bank v. vis v. State, 17 Ala. 354; Williams v. 
 Hewett, 53 Me. 531 ; Wagers v. Dickey, State, 19 Ga. 402 ; Brown v. Com., 73 
 17 Ohio St. 439 ; Cleveland v. Huey, 18 Pa. St. 321 ; Com. v. Richards, 18 Pick. 
 Ala. 343 ; Hepler v. Mt. Carmel Bank, 434 ; Kendrick v. State, 10 Humph. 
 97 Pa. St. 420 ; Young v. Dearborn, 479. But see State v. McLeod, 1 
 83 N. H. 372 ; Martin v. Cope, 8 Abb. Hawks (N. C), 344 ; Oliver v. State. 5 
 Ct. App. (N. Y.) 182; Sloan v. Somers, How. (Miss.) 14; Floyd v. State, 83 
 30 N. J. L. 66; Home v. Williams, Ala. 16; State v. Campbell, 1 Rich. 
 33 Ind. 37 ; Traramell V. Hemphill, 37 (S. C.) 134; Berney v. Mitchell, 5 
 Ga. 535 ; Thompson v. Blackwell, 17 Vroom, 337. 
 
 B. Mon. 609 ; People v. Murphy, 45 3 Jackson v. Bailey, 3 Johns. 17 ; 
 
 Cal. 137; Thurmond v. Trammell, 28 Gildersleeve v. Caraway, 10 Ala. 260; 
 
 Tex. 372; Tibbetts v. Flanders, 18 N. Jackson v. Powers, 40 Vt 611 ; Brown 
 
 H. 384 ; Wood v. Keyes, 14 Allen, 236. v. Com., 73 Pa. St. 831. 
 
 1 Jackson v. Lawson, 15 Johns. 544 ; * Black v. Woodron, 89 Md. 191 
 Cleveland v. Huey, 18 Ala. 843 ; Hun- 
 
HEAESAY EVIDENCE. 
 
 4T7 
 
 curacy.' Saoh evidence may be given on any subsequent 
 trial.^ What an interpreter on a former trial says a witness, 
 since deceased, said is competent on a subsequent trial. ^ It 
 has been said that the report of evidence on a former trial 
 is inadmissible against a defendant in that trial, where judg- 
 ment thereon was rendered by default.'' But in Hussey v. 
 State' aflBdavits were allowed to be used, and the objection 
 that the affiants were not subject to cross-examination was 
 held to go to their sufficiency and not to their competency.' 
 A transcript made by an official stenographer, duly certified 
 by him to be a verbatim transcript of his notes of the evidence 
 given upon a former trial, is admissible.' 
 
 VIII. MISCELLANEOUS. 
 
 Stubs of a check-book from which the checks are taken are, 
 like other parol evidence, competent as tending to show pay- 
 ment of a debt.^ On the issue as to the value of a stallion, evi- 
 dence as to its pedigree as registered in a standard register of 
 trotting horses is admissible.' Mortuary tables are admissible 
 to show the expectancy of life.'" On a contest over an election 
 
 1 Clark T. Vorce, 15 "Wend. 193. 
 
 2Koehler v. Scheider, 15 Daly, 189, 31 
 N. Y. State Rep, 549 ; Johnson v. Pow- 
 ers, 40 Vt 611 ; Fisher v. Kyle, 27 Mich. 
 454; Sloan v. Somers, 20 N. J. L. 66; 
 Rhine v. Robinson, 27 Pa. St. 30 ; Clark 
 V. Vorce, 15 Wend. 193 : Jones v. Ward, 
 3 Jones (N. C), L, 24 (judge's notes) ; 
 Hufie V. Bennett, 4 Sandf. 130 ; Shall 
 V. Miller, 5 Whart. 156 ; Livingston v. 
 Cox, 8 Watts & Serg. 61 ; Whitoher 
 V. Morey, 89 Vt 459 ; Kirk v. Morey, 
 24 Ohio St. 581 ; Cantrell v. Hewlett, 
 2 Bush (Ky.), 311 ; Hayward's Case, 1 
 Sandf. 701, 704 ; Welcome v. Batch- 
 elder, 23 Me. 85, 88 ; Grimm v. Hamel, 
 2 Hilt 434; Zitske v. Goldberg, 38 
 Wis. 316; Yancey v. Stone, 9 Rich. 
 <S. C.) Eq. 439 ; Lathrop v. Adkisson, 
 87 Ga. 839 ; Watrous v. Cunningham, 
 71 Cal. 30 ; Carpenter v. Tucker, 98 
 N. C. 316 ; Waters v. Waters, 35 Md. 
 531 ; Sloan v. Somers, 20 N. J. L. 66; 
 Brown v. Com.; 73 Pa. St 321 ; Min- 
 
 eral Point E. Co. V. Keep, 22 111. 9 ; 
 Fisher t. Kyle, 27 Mich. 454. 
 
 3 Nadau v. White River L. Co., 76 
 Wis. 120. 
 
 1 Crim V. Fleming, 133 Ind. 438. 
 
 5 87 Ala. 123. 
 
 8 But see American Union Tel. Co. 
 V. Daughtry, 89 Ala. 191. 
 
 '• Bridgman v. Corey, 63 Vt 1 ; Com. 
 V. McCarthy, 153 Mass. 5';^ ; Com. v. 
 Doughty, 139 Pa, St 388; Sage v. 
 State, 127 Ind. 15 ; State v. Byers, 16 
 Mont 565. 
 
 SMcGinty V. Henderson, 41 La. Ann. 
 382.: 
 
 9 Ellis V. Simpkins, 81 Mich. 1. 
 
 10 Northern R. Co. v. Chandler, 84 
 Ga. 37 ; Gorman v. Minneapolis & St 
 L. R. Co., 78 Iowa, 509 ; Hun v. Mich- 
 igan C. R. Co., 78 Mich. 513 ; Lincoln 
 V. Smith, 28 Neb. 763; Hall v. Ger- 
 man, 131 N. Y. 536, 37 N. Y. State 
 Rep. 330 ; Chicago, B. & Q. R Co. v. 
 Johnson, 36 111. App. 564 
 
478 EULES OF EVIDENCE. 
 
 the ballots are not only competent, but are a very high order 
 of evidence ; ' so is a ballot-box.^ Books of science are not ad- 
 missible in evidence to establish the doctrine therein affirmed, 
 except in case of works of the exact sciences. Books on sur- 
 gery are not admissible.' But excerpts from scientific works 
 which an expert witness has testified are standard works on 
 the subject may be read to him for the purpose of testing an 
 opinion expressed by him contrary to the statements made in 
 such excerpt, although the excerpts themselves are not admis- 
 sible as substantive evidence.* The time of rising and phase 
 of the moon on a certain day may be proved by the introduc- 
 tion of an almanac.^ A newspaper advertisement signed by 
 the name of a firm is evidence against them as to matters 
 therein stated.^ So a bill-head showing the names of the part- 
 ners composing a firm is admissible to show the actual part- 
 nership, although not shown to have been presented to any of 
 the firm.'' So a market report is admissible to show the price 
 of produce at the place where published, at or near the time 
 of sale;^ and a hotel register is admissible in rebuttal of tes- 
 timony that a certain person had stopped at the hotel at a 
 certain period. So the record on a tombstone more than fifteen 
 years old is admissible to impeach the testimony of the witness 
 that a son was the youngest of the family.' 
 
 IX. BOOKS OF COEPOEATIONS AS EVIDENCE. 
 
 § 36. In general. — {a) Entries on the books of a corpora- 
 tion, M'hen the acts recorded are of a public nature and such 
 entries have been made by the proper officer, are deemed to 
 be relevant facts in proving the organization and the existence 
 of the corporation and the regularity of the corporate pro- 
 ceeding, and for this purpose are admissible in evidence either 
 for or against the corporation; but when such entries relate to 
 
 1 Gibson v. Trinity County, 80 Cal. 5 Mobile & B. R Co. v. Ladd, 93 Ala. 
 359. 287. 
 
 2 Hunnicut v. State, 75 Tex. 233. « Wright v. Carman, 47 N. Y. State 
 
 3 Union P. R Co. v. Yates, 79 Fed. Eep. 125. 
 
 Rep. 584 ; Fox v. Peninsular W. D. & ' Knight v. Richter, 11 Mont 74. 
 
 C. Works, 84 Mich. 676. 8 Western Wool Com. Co. v. Hart 
 
 <Egan V. Dry Dock E. B. & B. R (Tex.), 20 S. W. Rep. 130; Crawford 
 
 Co., 13 App. Div. 556 ; Werner v. v. Moran, 168 Mass. 446. 
 
 Brooklyn L. R Co., 11 App. Div. 86. s Gehr v. Fisher, 143 Pa. St. 311. 
 
■ HEARSAY EVIDENCE. 470 
 
 the private transactions of the company, they are not deemed 
 to be relevant except in actions between the members.' 
 
 (J) Where the books of a corporation containing a record of 
 its votes and acts are kept by the proper officer, they are evi- 
 dence of its acts and proceedings.^ Thus, the books of a corpo- 
 ration are admissible to show the fact of a party being a stock- 
 holder, the number of shares which he holds and their value, 
 and any other transaction between him and the company. 
 The report of commissioners appointed to take subscriptions of 
 stock is admissible to show the amount of cash paid in.' 
 
 (o) A rule-book of an employing company containing the 
 rules which were in force is admissible.* Thus, the rules of a 
 railroad company applicable to the service of an injured em- 
 ployee and the operation of the engine are admissible in evi- 
 dence in an action by him for damages caused by the engineer's 
 moving the engine in violation of the rules.' 
 
 (i^ A train-report sheet showing the movement of trains 
 upon a railroad, made in the established course of business of 
 the railroad company, and giving information, every step of 
 the gathering, transmission and entry of which is an act per- 
 formed by some person in the line of his duty and in the 
 usual course of his employment under a sanction tending to 
 make his statements true, and so connected with and depend- 
 ent upon each other as to form parts of one transaction, is 
 competent evidence for the railroad company, as constituting 
 acts rather than declarations. So entries made by a train- 
 dispatcher upon a sheet kept at the terminus of the railroad,, 
 from telegraphic messenges sent from a station on the road, 
 are admissible without proving them by the operator who 
 sent such messages.* 
 
 (e) The record of a beneficiary association is prima facie 
 evidence in respect to the rights of its members.' The report 
 
 1 Angell & Ames on Corp., gg 679, 3 Hatch v. Attrill, 118 N. Y. 383, 39 
 681 ; McFarlan v. Triton Ins. Co., 4 N. Y. State Rep. 14. 
 
 Denio, 893 ; Owings v. Speed, 5 Wheat. * Parker v. Georgia P. R. Co., 83 Ga. 
 
 430 ; Hager v. Cleveland, 33 Md. 476 ; 539 ; People, Manhattan R Co. v. 
 
 Malone v. Lancaster G. L. Co., 183 Barker, 153 N. Y. 417. 
 
 Pa. St 309. 5 Dagan v. Chicago, St. P., M, & O. 
 
 2 McHorn v. Wheeler, 45 Pa. St. 33 ; E. Co., 85 Wis. 609. 
 
 Howard v. Glenn, 85 Ga. 338 ;, Wiley « Donovan v. Boston & M. E. Co., 
 v. Athol, 150 Mass. 436; Nolan v. 158 Mass. 450. 
 
 Williams, 57 Kan. 758 ; Carey v. Will- ' Bagley v. Grand Lodge A. O. U. 
 iams, 79 Fed. Eep. 906. ' W., 133 111. 498 ; Aldeu v. St. Peter's. 
 
 Parish, 30 L. E. A. 333, 158 III. 393. 
 
480 EDLES OF EVIDENCE. 
 
 of an insurance company to the state insurance department is 
 competent to show the amount which would be realized by an 
 assessment levied according to the terms of the certificate.^ 
 
 (/) The record book of a corporation is admissible to show 
 that persons sued for a failure of the corporation to file its 
 annual certificates were stockholders.^ In an action by a cor- 
 poration against a stockholder or trustee, books of account of 
 the corporation are not admissible to establish an account 
 between them.' As a general rule, however, books of a cor- 
 poration are evidence in actions between it and its stock- 
 holders,* and in actions against the corporation;' as, to prov^e 
 the organization of the company;' to prove the acceptance 
 of its charter or amendments thereto ; ' to show what resolu- 
 tions were passed or votes were taken at a meeting of the 
 stockholders or directors,' and who were elected as directors, 
 officers, etc., of the corporation.' 
 
 {g) As a general rule the books of a corporation are not 
 evidence in its favor against strangers.^" But they are the 
 proper evidence of its corporate acts; and while they are in 
 existence and can be produced, parol evidence is inadmissible 
 to prove the acceptance of the charter or what persons are 
 members of the corporation.'^ 
 
 (A) "Where it becomes important to show that a certain res- 
 olution was passed at a meeting of the stockholders or direct- 
 ors, the records, if any, must be produced, or notice to pro- 
 duce them must be given, before secondary evidence of their 
 contents will be admitted. So where the question is as to 
 whether a certain person is a stockholder of a certain corpo- 
 ration, the stock books of the corporation should be produced. 
 
 (i) The books of a corporation are admissible in an action 
 
 1 O'Brien v. Home Ben. Soc, 117 N. ? Coffin v. Collins, 17 Me. 440; Her- 
 
 Y. 310, 37 N. Y. State Rep. 326. man v. Heoht, 116 Cal. 553. 
 
 2Congdon v. Winsoro, 17 R I. 236. 8 Alabama, etc. B. Co. v. Nabors, 37 
 
 3 Rudd V. Robinson, 136 N. Y. 113, Ala, 489; Duke v. Taylor, 31 L. R A. 
 
 36 N. Y. State Rep. 500. 484, 37 Fla. 64. 
 
 i Wheeler v. Walker, 45 N. H. 355 ; 9 Wood v. Jefferson County Bank, 
 
 Chase v. Sycamore, etc. R Co., 38 111. 9 Cow. 194 ; Breay v. Royal British 
 
 215. Nurses' Ass'n (1897), 2 Ch. 272. 
 
 6 Tuskaloosa v. Wright, 11 Ala. 230 ; W Hagar v. Cleveland, 36 Md. 476 ; 
 
 Philadelphia, etc. R Co. v. Hickman, Connecticut Life Ins. Co. v.Sohwenok, 
 
 28 Pa. St. 318. 94 U. S. 593. 
 
 6 Rider v. Alton, etc. R Co., 13 111. "Coffin v. Collins, 17 Me. 440; Hud- 
 
 516; St Louis, A. & T. H. R. Co. v. son v. Carman, 41 id. 84; Cabot v. 
 
 Bellville City R. Co., 158 111. 890. Given, 45 id. 144. 
 
HEARSAY EVIDENCE. 481 
 
 against strangers to prove the election of its officers and that 
 the corporation had complied with the previous requisitions 
 of its charter and that it had a legal existence.* The book 
 of a corporation must be identified, and it must be shown that 
 the book was kept and the entries were made by the proper 
 officer.^ The records of a corporation are admissible to show 
 dates of corporate acts ' and that a party is a stockholder.* 
 
 {j) In an action on a Bohemian oat note, the annual reports 
 of the Bohemian Oat & Cereal Company, filed in the office of 
 the secretary of state, are admissible upon the question of 
 fraud in the procuring of the note." 
 
 §36. Records of corporations. — (1) The records of a corpo- 
 ration are chiefly in three classes: First. Those required by 
 law — such as subscription books for stocks, registers of stock- 
 holders, annual reports, etc. Second. Minutes of deliberate 
 proceedings, which are properly made at the meetings of the 
 corporation and of boards and committees. Third. Account- 
 books and other books of entries kept by the officers or agents 
 of the corporation. Where the record itself constitutes the 
 act — as in the case of a subscription for stOck in the commis- 
 sioners' books, or the making of annual repor.ts, or the adop- 
 tion of a municipal by-law, — the fact to be proved, when 
 directly in issue, is the existence of the statutory record. 
 
 (2) Whenever the action of a deliberate body, whether that 
 of the corporation at large, its board or a committee, is com- 
 petent to be proved, whether in favor of or against the corpo- 
 ration, its officers, members or strangers, the contemporaneous 
 corporate record of their action is competent,''' though not al* 
 ways alone sufficient. Thus, the act of organizing may be 
 proved in favor of the corporation or creditors, and against 
 members and strangers, by the books. 
 
 (3) To render the rules for conduct of a carrier's employees, 
 and a notice to passengers, admissible in evidence in jastifica- 
 
 1 Wood V. Jefferson County Bank, * Leggett v. Glenn, 51 Fed. Rep, 381. 
 9 Cow. Id4. But see Taussig v. Glenn, id. 409. 
 
 2 Highland T. Co. v. MoKeen, 10 s Smith v. Molt, T'O Hun, 593, 53 
 Johns. lo4 ; Smith v. Franklin Park N. Y. State Rep. 346 ; De Neuf ville v. 
 L. Co., 168 Mass. 345. New York & W. R Co., 81 Fed. Rep. 10. 
 • 3 Morris v. Morton, 14 Ky. L. Rep. « Grant v. Henry Clay Co., 80 Pa. St 
 360 ; Boyd v. American Carbon Block 208 ; Rayburn v. Bldon, 43 Ala. 700. 
 Co., 183 Pa. St 306. 
 
 31 
 
482 EDLES OF EVIDENCE. 
 
 tioa of an employee's conduct in attempting to comply and 
 enforce compliance therewith, it is not necessary to show that 
 either was known to the passengers.* 
 
 (4) The rules of a railroad company regarding the manage- 
 ment of trains in its yard are admissible in an action by one 
 of its_ employees against another company for injury from one 
 of its trains running in such yard.^ 
 
 § 37. Against whom competent, — In general a resolution 
 or other deliberate act of a corporation may be proved in its 
 own favor, or in favor of a stranger, against any one who takes 
 issue upon it. Thus, where the existence of a corporation, de- 
 pending on organization under a general law or an acceptance 
 of a charter, is denied, or where any act of the corporation is 
 denied, the minutes of the corporation are competent to prove 
 the fact. Between the members of a corporation the corpo- 
 rate books are of the nature of public books.' 
 
 § 38. Minutes proved by parol when. — The records of the 
 corporate proceedings of a corporation are not generally pro- 
 duced on the trial. Where their proceedings are collaterally 
 or incidentally in issue, parol evidence is equally primary; but 
 whenever the action or defense is founded directly on the act 
 or proceeding in question, or when a written act or resolution 
 is pleaded and in issue, or when the contents of the record 
 were communicated and the terms of the communication is 
 the material fact, the records or minutes must be produced or 
 accounted for before parol eviden-ce can be adduced. 
 
 § 39. Authentication of corporate records. — To introduce 
 corporate records in evidence, their character as such must be 
 properly shown by the secretary or other officer who made the 
 record, or by a witness who can testify that they are the rec- 
 ords of the corporation ; that they have been regularly kept by 
 the proper officer or by some person in his necessary absence ; 
 that they come from the proper custody; and that he knows 
 of his own knowledge that the entries offered are correct rec- 
 ords of the transaction they purport to record, or that the 
 entries are in the handwriting of a person who was the proper 
 
 1 O'Neill V. Lynn & B. R Co., 155 son E. R. Co., 131 N. Y. 594, 42 N. Y. 
 Mass. 371 ; Southern K. R. Co. v. State Rep. 41. 
 
 Pavey, 48 Kan. 453. 3 1 Greenl. Ev., § 54& 
 
 2 Noonan v. New York Cent. & Hud- 
 
HEARSAY EVIDENCE. 483 
 
 recording officer, or that the book containing them had been 
 handed down in actual and continuous use in the corporation 
 as the guide and authority of its officers.^ Rough notes taken 
 by the recording officer at the meeting for the purpose of being 
 afterward extended in the books are, until so extended, com- 
 petent in place of a formal record ; ^ and, if lost before being 
 entered, parol evidence of the transactions of the meeting is 
 competent.' Proof of loss and notice to produce are necessary 
 to lay a foundation for secondar}^ evidence.* 
 
 § 40. Parol evidence to vary corporate minutes. — It seems 
 that parol evidence cannot be given to enlarge or contradict 
 the terms or meaning of proceedings which are recorded of a 
 municipal or public corporation kept pursuant to law; and in 
 general, where the law for the purpose of preserving authentic 
 evidence prescribes the keeping of official minutes of public 
 proceedings of a corporate nature, parol evidence is not com- 
 petent to contradict the minutes.' But it is different as to the 
 minutes of a private corporation in an action between the cor- 
 poration and a stranger. 
 
 §41. Accounts and business entries. — Accounts of the 
 transactions of a private corporation had through agents and 
 officers are competent between Qiembers and between the cor- 
 porations and members on any question which concerns them 
 in their interest as such,' and between third persons on an 
 issue in respect to the condition and solvency of the corpora- 
 tion. Except as above, the evidence stands on the same foot- 
 ing as the accounts of individuals and firms. 
 
 1 1 Greenl. Ev., g 483 ; 2 Phil. Ev., 3 Wallace v. First Parish, 109 Mass. 
 
 § 442; 1 Whart Ev., § 639; Hatha- 264. 
 
 way V. Inhabitants of Addison, 48 < Partridge v. Badger, 25 Barb. 173 ; 
 
 Me. 440 ; Mary Lee C. & R. Co. v. Cozzens v. Chicago H. P. B. Co., 166 
 
 Knox, 110 Ala. 632; Yanish v. Pio- III. 213; Potts v. Schumacker, 35 L. 
 
 neer Fuel Co., 64 Minn. 175. R. A. 397, 84 Md. 535. 
 
 2 Waters v. Gilbert, 2 Cush. 27; Re 5 People v. Zeyst, 23 N. Y. 140; Re 
 
 Murray Hill Bank, 153 N. Y. 199 ; London Metallurgical Co. (1897), 2 Oh. 
 
 Woodbridge v. Pratt & W. Co., 69 262. 
 
 Conn. 304 s Hubbell v. Meigs, 50 N. Y. 480. 
 
CHAPTEE XIV. 
 
 HEARSAY EVIDENCE (CoNTimJED). 
 
 Res Gest^ 
 l of the res gest^. 
 
 g 1. In general. 
 
 2. Tests for determining when a 
 
 declaration is. 
 
 3. Documents. 
 
 4 Continuing circumstances, 
 when res gestoB. 
 
 5. Declarations of agent or repre- 
 
 sentative. 
 
 6. Illustrations. 
 
 6a. Statements inter alios. 
 
 7. Declarations as tp state of 
 
 health. 
 
 8. Statement of party injured to 
 
 his physician and others. 
 
 IL DECLARATIONS OF ASSIGNOR 
 AGAINST ASSIGNEK 
 
 9. In general. 
 
 10. Declarations before vendor be- 
 came owner. 
 
 11. 
 
 12. 
 13. 
 
 14. 
 
 15. 
 
 Vendor of chattels or choB^s in 
 action. 
 
 Made at time of selling. 
 
 Vendee must be a purchaser 
 for value to exclude declara- 
 tions. 
 
 Declarations of a,S8ignor for 
 benefit of creditors prior to 
 assignment. 
 
 Illustrations. 
 
 Ill CONSPIRATORS — DECLARATIONS OP. 
 
 16. In general. 
 
 17. Criminal conspiracy. 
 
 18. Illustrations. 
 
 19. Declarations as to ownership. 
 
 20. Acts and declarations as to 
 
 fraud and fraudulent convey- 
 ances. 
 
 21. Acts and declarations of or in 
 
 presence of donor, testator or 
 intestate. 
 
 22. Telephone conversation. 
 
 Ees Gept^. 
 
 1. OF THE EES GB^T^. 
 
 § 1. In general.— I think I may safely say that there are 
 few problerps in the law of evidence more unsolved than what 
 things are to be embraced in those occurrences that are desig- 
 nated in the law as the res gestce. It is different in dififerent 
 cases ; and it is perhaps not possible to frame any definition 
 which Would embrace all the various cases which may arise in 
 practice.' It is a general rule of evidence that the declarations 
 
 • > Call V. Easton Transit Co., 180 Pa. 
 St 618 ; Pierce y. Van Dusen, 47 U. 
 S. App. 339 ; Yazoo & M. V. R. Co. 
 V. Jones, 73 Miss. 229; Wilson v. 
 Southern Pacific Co., 13 Utah, 352; 
 
 1 Greenl. Ev., § 110; New Milford 
 V. Sherman, 21 Conn. 101 ; Cox v. 
 State, 64 Ga. 374; Jones v. State, 71 
 Ind, 66; State v. Belcher, 13 S. C 
 459, 463; Mitchum v. Stale, 11 Ga. 
 
HEARSAY EVIDENCE. 485 
 
 and acts of the principal parties to an act, as well as the circum- 
 stances surroanding them and accompanying the transaction at 
 the time of the principal fact, may be given in evidence in a con- 
 troversy between the parties relative thereto, as a part of. the 
 res gestae, which are calculated to show the nature of the act 
 and are in harmony with it.' But in order to be competent 
 they must be immediately connected with the material in- 
 quiry involved in the issue and must have occurred at the 
 time of the transaction.^ They must be so closely connected 
 with the principal act in point of time as to be spontaneous 
 and voluntary, and to preclude all possible idea of deliberate 
 design' The declarations or acts must be the natural and 
 inseparable concomitants of the principal fact in controversy, 
 so that they may be presumed to have been induced by the 
 same motive that led to the act itself, and so closely allied 
 thereto in point of time as obviously to form a part of the 
 transaction and must be calculated to unfold its nature and 
 quality.* If a declaration is in itself a fact in the transaction, 
 or is made by a person while doing an act, and serves to ex- 
 plain it, it is a part of the res gestae; but if it is merely a recital 
 of a past transaction it is not.* Res gestee are circumstances, 
 facts and declarations which grow out of the main fact, are 
 
 615; Com. v. Hacketfc, 2 Allen, 136; v. Brockett, 131 U. S. 637; Little v. 
 Blake v. Damon, 113 Mass. 199; Col- State, 75 Tex. 616; ^tna v. Brewer, 
 quitt V. State, 34 Tex. 550 ; Mabley v. 78 Me. 377 ; Conlan v. Grace, 36 Minn. 
 Kittleberger, 37 MicU. 360 ; Fifield v. 276 ; Harper v. Uail, 93 N. C. 394 ; 
 Kiohardson, 34 Vt. 410 ; Felt v. Ami- Smith v. Putman, 62 N. H. 369 ; John- 
 don, 43 Wis. 467 ; Entwliistle v. Feigh- son v. State, 88 Ga. 203 ; Carr v. State, 
 ner, 60 Mo. 214; Porter v. Waltz, 108 43 Ark. 99; Ordway t. Sanders, 58 
 Ind. 40; Tennis v. Rapid Transit Co., N. H. 132; Wiley v. Athol, 150 Mass. 
 45 Kan. 508 ; State v. King, 9 Mont. 426 ; Tait v. Hall, 71 Cal. 149 ; McLeod 
 445 ; Harrimau v. Stowe, 57 Mo. 93. v. Ginther, 80 Ky. 399 ; Frome v. 
 
 1 Jones V. Rigby, 41 Minn. 530; Dennis, 45 N. J. 515; Hallahan v. N. 
 
 Corbett v. St. Louis, I. M. & S. R. Co., Y., L. E. & W. R. R. Co., 102 N. Y. 194. 
 
 26 Mo. App. 621 ; Lindauer v. Mey- » McKay v. Lasher, 131 N. Y. 477, 
 
 borg, 27 id. 181 ; Baughan v. Brown, 31 N. Y. State Rep. 690 ; Jones v. Lay- 
 
 132 Ind. 115; Monroe v. Snow, 131 man, 123 Ind. 569; Savannah, F. cfc 
 
 III. 136. W. R. Co. V. Holland, 83 Ga. 257. 
 
 'In re Taylor, 9 Paige, 611 ; Wesson * Webber v. Hoag, 55 Hun, 605, 28 
 
 T. Wash. Iron Co., 13 Allen, 95 ; Ross N. Y. State Rep. 630 ; People v. O'Neil, 
 
 V. State, 62 Ala. 224 ; Stephens v. Mc- 20 N. Y. State Rep. 754, 112 N. Y. 355 ; 
 
 Cloy, 36 Iowa, 659 ; Sears v. Hayt, 37 Rains v. State, 88 Ala. 91 ; Glass v. 
 
 Conn." 406 ; Carter v. Beals, 44 N. H. Bennett, 89 Tenn. 478 ; Crooks v. 
 
 408; Louden v. BIythe, 16 Pa. St. 532 ; Bunn, 136 Pa. St. 368. 
 
 Dillard V. Scruggs. 36 Ala. 670 ; State 5 Bank v. Kennedy, 17 Wall. 19; 
 
 V. Howard, 32 Vt. 380 ; Steamboat Co. Still v. Reese, 47 Cal. 294. 
 
486 KDLES OF EVIDENCE. 
 
 contemporaneous with it, and serve to illustrate its character.^ 
 It is only when the thing done is equivocal, and it is neces- 
 sary to render its meaning clear and expressive of a motive 
 or object, that it is competent to prove declarations accom- 
 panying it, as falling within the class of res gestm? In a ques- 
 tion of settlement, the pauper's declarations when in the act 
 of removing are admissible.' So the acts and sayings of a 
 constable at the time of a levy are admissible in an action 
 against the sureties on his bond for neglecting to make a re- 
 turn thereof.* Everything is a part of the res gestae which 
 attended and was immediately connected with an act done, 
 so nearly in point of time as to preclude the idea that the act 
 was done or the statement made for the purpose of makiag 
 evidence for the party,' and it is for the jury to determine 
 whether they were made without artifice or premeditation." 
 
 In an action for a divorce, E. testified to seeing the defend- 
 ant sitting in R.'s lap. E..'s wife testified that she requested 
 her husband to hold the defendant in his lap, she being ill at 
 the time, while the bed was making. That she left the room 
 for a moment while her husband was holding the defendant, 
 and when she returned he told her that E. had been in. This 
 was held competent as identifying the occasion as .the same 
 testified to by E.'' 
 
 "Where a person changes his domicile, or leaves his home, or 
 returns there, or remains abroad, or, in fine, does any act ma- 
 terial to be understood, his declarations made at the time of 
 
 1 Sweet V. Wright, 57 Iowa, 510. * Dobbs v. Justices, 17 Ga. 624 ; State 
 
 2 Nutting V. Paige, 4 Gray, 584; v. Brodneck, 69 Ooud. 212. 
 
 Estell V. State, 51 N. J. 183; Doles siGreenl.Ev., gl08; Lundv.Tyngs- 
 v. State, 97 Ind. 555 ; Waldele v. N. Y. borough, 9 Gush. 36 ; Newton v. Mut' 
 0. & H. R E. Co., 95 N. Y. 274; For- Ben. Life Ins. Co., 2 Dill. C. Ct 154; 
 dyce V. McCants, 51 Ark. 509 ; Kirby Castner v. Sliker, 4 Vroora, 95 ; State 
 V. Com., 77 Va. 681 ; Ross v. White, v. Horton, 33 La. Ann. 289 ; Collogan 
 60 Vt 558 ; Whitney v. Darkin, 48 v. Burns, 57 Me. 449 ; Swift v. Massa- 
 Cal. 462; Cleveland R R Co. v. Mara, chusetts Mut Life Ins. Co., 63 N. Y. 
 26 Ohio St 185; People %-. Davis, 56 186; Com. v. Roberts, 108 Mass. 296; 
 N. Y. 95, 103 ; State v. Dominique, 30 Mack v. State, 48 Wis. 271, 279 ; Baker 
 Mo. 585; Bangor v. Brunswick, 27 v. Gausin, 76 Ind. 317; Driscoll v. Peo- 
 Me. 351; Rosenbaum v. State, 33 Ala. pie, 47 Mich. 413; O'Conner v. Chi- 
 354 ; McKinnon v. Norcross, 148 Mass. cago, Mil. & St P. R Co., 27 Minn. 
 533. 166; State v. Banks, 10 Mo. App. 111. 
 
 3 Richmond v. Thomaston, 38 Me. 6 Hart v. Powell, 18 Ga 635 ; People 
 232; People v. Barney, 114 Cal. 554. v. Coughlin, 13 Utah, 58. 
 
 ' Earle v. Earle, 11 Allen (Mass.), 1. 
 
HEARSAY EVIDENCE. 4:S7 
 
 the transaction and expressive of its character, motive or ob- 
 ject are regarded as verbal acts indicative of a present purpose 
 and intention and are competent evidence.^ So what was said 
 and done at a meeting to organize a new corporation to ac- 
 quire and carry on the business of a 'former company may be 
 proved to show that there was an understanding among all 
 the parties that the new organization should pay the debts of 
 the old.^ So in a suit for enticing away a wife or servant, the 
 wife's or servant's statements at the time of leaving will be 
 received as tending to show the motive.' So declarations 
 made by a husband at the time of giving his wife money, as 
 to the purpose for which he gave it, as well as his statements 
 as to the person for whom he was acting when he received a 
 bill of sale for his wife, are admissible in an action in favor of 
 the wife.* And whenever it becomes material to ascertain the 
 nature of a particular act and the intention of the person who 
 did it, what he said and did at the time of doing it is always 
 competent as part of the-transaction.^ Thus, the declarations 
 or exclamations of passengers on a railroad train at the time of 
 the happening of the accident; the declarations of bystanders 
 at a public auction;' the sayings of a constable at the time of 
 making a levy;' the declarations of a servant at the time of 
 leaving "his master;' the declarations of a person, on leaving 
 home, as to where he was going and the nature of his busi- 
 ness,' are competent. 
 
 The relation between the principal fact and the declarations 
 or facts sought to be established as a part of the res gestm 
 must be such that it may be said that the declarations or acts 
 are the declarations and acts of the transaction itself.'" Thus, 
 the declarations of an agent are admissible as evidence against 
 his principal, only when made while transacting the business 
 of the principal and as a part of the transaction which is the 
 subject of inquiry in the suit in which they are offered. They 
 are then admitted as "verbal acts" and a part of the res gestm. 
 
 1 Gbrham v. Canton, 5 Me. 266 ; » Curtis v. Moore, 20 Md, 93. 
 Ward V. Ward, 59 Conn. 188. « Stewart v. Severance. 43 Mo. 322. 
 
 2 Ft Worth Pub. Co. v. Hetson, 80 ' Dobb v. Justice, 17 Ga. 624. 
 Tex. 216-234. 8 Hadley v. Carter, 8 N. H. 40. 
 
 s Hadley t. Carter, 8 N. H. 40. * Autanqua Co. v. Davis, 32 Ala. 
 
 * Kells V. Campbell, 2 Abb. Ct. App. 713. 
 
 (N. Y.) 492; Trevis v. Hicks, 41 Cal. "People v. Greenfield, 85 N. Y. 75 ^ 
 
 123. State t. Panshon, 133 Mo. 44. 
 
488 EDLE8 OF EVIDENCE. 
 
 What he may have said before the transaction is entered into, 
 or after its completion, as explanatory, is no more admissible 
 than if made by a stranger.' To be admissible they must be 
 in the nature of original and not hearsay evidence; they must 
 constitute the fact to be proved and must not be the mere ad- 
 mission of some other fact. 
 
 The question as to whether such a space of time had elapsed 
 between the act and declaration that the declaration could 
 have been fairly said to have been detached is one which de- 
 pends entirely upon the circumstances of each case. In Cleve- 
 land, etc. R Co. V. Mara,^ in an action for injuries to a person 
 by being thrown into a ditch, evidence of what he said while 
 being helped out was held not to be a part of the res gestos, 
 but an account of a past transaction. In Jackson v. State' 
 fifteen minutes was held too long. The real test is whether 
 the principal act and the declarations or acts are detached from 
 each other by such a lapse of time as to make it possible for 
 the parties to speak or act from deliberate design rather than 
 from instinctive impulse or the natural promptings of the mind.* 
 
 Declarations and acts after the principal act is complete or 
 an injury is received, so far detached therefrom in point of 
 time as to admit of deliberate design, or as to be fairly de- 
 tached from the transaction to which they relate, and in which 
 there has been an opportunity for fabricating an explanation 
 thereof, are no more a part of the res gestae, although they 
 occur within a few moments after the act, than is a declaration 
 made a week afterwards.'' Nor can anything said or done 
 before the principal act occurred, or which was within the con- 
 templation of the parties, be regarded as a part of the res gestm. 
 But in State v. Thomas^ what a person said before the alleged 
 larceny was held to be admissible on his part as a part of the 
 res gestm; and in Davis v. Zimmerman ^ it was held that such 
 declarations relating to the title of property were in some cases 
 
 1 McDermott v. Hannibal & St. J. ^Sorenson v. Dundas, 42 Wis. 463; 
 R, Co., 73 Mo. 516, 39 Am. Rep. 526 ; Osborn v. Robbins, 37 Barb. 481 ; 
 Globe Ace. Ins. Co. v. Geii.'ich, 163 Luby v. Hudson River Co., 17 N. Y. 
 111. 625 ; French v. State, 93 Wis. 325 ; 131 ; Baylis v. Diamond Street Om- 
 Norfolk & C. R. Co. v. Suffolk Lum- nibus Co., 173 Pa. St. 378 ; Stevens v. 
 ber Co., 92 Va. 413. People, 158 111. HI ; State v. Myers, 
 
 2 26 Ohio St. 185. 46 Neb. 152. 
 
 3 52 Ala. 303. 6 30 La. Ann. 600. 
 * State V. Garrand, 5 Oreg. 216. ' 40 Mich. 20. 
 
HEARSAY EVIDEJfOE. 489' 
 
 admissible as a part of the res gestce, because they tend to ex- 
 plain the acts of the party relating thereto. 
 
 When the principal act is once in contemplation of the par- 
 ties, their acts and sayings relating thereto and which tend to 
 explain or unfold the principal act, from that time until the 
 act is complete, come under the head of res gestae} In Baker v. 
 Oaisin,^ in an action for assault and battery, evidence of what 
 the parties said during the altercation which was followed by 
 the assault, and even the declarations of a bj'^-stander made dur- 
 ing the progress of such altercation, were held to be admissible. 
 In State v. Howard ^ what a person said about going to a place, 
 before he started, was held admissible. So in Hunter v. State * 
 a letter from a man, afterwards murdered, to his wife, that 
 the prisoner' was with him, was held to be a part of the res 
 gestoB. In short, the principle does not extend to the exclusion 
 of any of what may be termed real or natural facts and cir- 
 cumstances in. any way connected with the transaction, and 
 from which any inference as to the truth of the disputed fact 
 can be reasonably made.^ 
 
 As a general rule the res gestm remains with the locus in qua, 
 and does not follow the parties after the principal act is com- 
 plete.* Thus, if a party is injured by reason of a defect in a 
 highway, declarations made by him at the place of the injury, 
 immediately upon the happening of the accident, are a part of 
 the res gestm; but after the party has gone away from the 
 loGUs in quo, however soon after the injury, his declarations 
 cease to be a, part of the res gestm, so far as the cause of the 
 accident is concerned.' But in Powers v. West Troy,* decla- 
 rations as to the nature of the injury and its extent, made by 
 the injured person, were admitted, where the injury resulted 
 from being thrown from a sleigh in consequence of a defect in 
 the highway, after he had gotten into the sleigh. But the dis- 
 tinction between these cases is, that in the one case the decla- 
 
 ' Hunter v. State, 40 N. J. L. 496; 6 Prideaux v. Mineral Point, 43 Wis. 
 
 Cunningham v. Parks, 97 Mass. 172. 513. 
 
 2 76 Ind. 316. ' Wood's Prac. Ev., § 469 ; Prideaux 
 
 ' 33 Vt. 880 V. Mineral Point, 43 Wis. 518 ; Muteha 
 
 * 40 N. J. L. 495. V. Pierce, 49 id. 331. 
 
 5 State V. Cox, 64 Ga. 374, 87 Am. 8 23 Hun, 561. 
 
 Rep. 76 ; Douglass v. Chapin, 36 Conn. 
 
 76 ; State v. Dickinson, 41 Wis. 399. 
 
490 ETJLES OF EVIDENCE. 
 
 rations related to the cause of the injury, while in the other 
 they related to the nature of the person's injury, which with 
 him was a present and continuing fact.^ 
 
 The following matters have been held to be a part of the 
 res gestae: Everything that takes place between the parties to 
 a verbal contract before its completion;^ declarations of a 
 public surveyor, when running a line, that he was running a 
 division line;^ declarations of by-standers at a public sale;* of 
 a party in possession of property, made at the time of the 
 transfer to him, as to the nature of the possession ; ' of a party 
 paying money, for^the purpose of showing the application or 
 appropriation of the money paid.* 
 
 § 2. Tests for determiniug when a declaration is. — It is 
 not always easy to determine when declarations may be re- 
 ceived as part of the res gestae, and the cases upon this subject 
 in this country and in England are not always in harmony. 
 The cases of Commonwealth v. McPike ' and Insurance Co. v. 
 Mosley ' are extreme oases upon one side. The case of Kegina 
 V. Bedingfield ' is an extreme case upon the other side. In Lund 
 V. Tyngsborough,^" in view of the frequent recurrence of ques- 
 tions in regard to the admission of declarations claimed to be 
 part of the res gestae, the court undertook to set forth and 
 illustrate the principles and tests by which such questions 
 must be determined, and among other things said: When the 
 act of a party may be given in evidence, his declarations made 
 at the time, and calculated to elucidate and explain the char- 
 acter and quality of the act, and so connected with it as to 
 constitute one transaction, and so as to derive credit from 
 the act itself, are admissible in evidence. The credit which 
 the act or fact gives to the accompanying declarations as a 
 part of the transaction, and the tendency of the contempo- 
 rary declarations as a part of the transaction to explain the 
 peculiar fact, distinguish this class of declarations from mere 
 hearsay. Such a declaration derives credit and importance 
 
 1 State V. Gedick, 43 N. J. L. 86. 6 Bank of Woodstock v. Clark, 26 
 
 apierson v. Hoag, 47 Barb. 34a Vt. 308. 
 
 3 George v. Thomas, 16 Tex. 74. ' 3 Cush. 181. 
 
 < Stewart v. Severance, 43 Mo. 332. 8 g Wall. 397. 
 « State V. Schneider, 35 Mo. 533. " 14 Cox's Cr. Cas. 841. 
 
 1" 9 Cush. 36. 
 
HEAESAY EVIDENCE. 491 
 
 as forming a part of the transaction itself, and is included in 
 the surrounding circumstances, which may always be given 
 in evidence to the jury with the principal fact. There must 
 be a main or principal fact or transaction; and only such dec- 
 larations are admissible as grow out of the principal transac- 
 tion, illustrate its character, are contemporary with it, and' 
 derive some degree of credit from it. In Commonwealth v. 
 Hackett,' upon a trial for murder, a witness testified that at 
 the moment the fatal stabs were given he heard the victim 
 cry out, "I am stabbed," and he at once went to him and 
 reached him within twenty seconds after that, and then heard 
 him say, " I am stabbed — I am gone — Dan Hackett has 
 stabbed me." This evidence was held competent as part of 
 tlie res gestae. To make declarations on this ground admissi- 
 ble they must not have been mere narratives of past occur- 
 rences, but must have been made at the time of the act done 
 which they are supposed to characterize, and have been well 
 calculated to unfold the nature and quality of the acts they 
 were intended to explain, and to so harmonize with them as 
 to constitute a single transaction. Declarations which are re- 
 ceived as part of the res gestae are to some extent a departure 
 from or an exception to the general rule, and when they are 
 so far separated from the act which they are alleged to char- 
 acterize that they are not part of that act or interwoven into 
 it by the surrounding circumstances, they are no better than 
 any other unsworn statements made under any oth^r circum- 
 stances.^ Thus, on a trial for murder, a declaration of the de- 
 ceased, made at the time of and during the affray and imme- 
 diately after, is admissible as part of the res gestae.^ But evidence 
 of what a person assaulted said to his wife when she first 
 reached him after he was shot, as to who shot him, is not part 
 of the res gestae.^ 
 It is said that it is competent on a trial for wife-murder to 
 
 13 Allen, 136. Western & A. R Co., 93 Ga. 785; 
 
 2 Waldele v. N. Y. C. & H. R. R Co., State v. Henderson, 24 Oreg. 100 ; 
 
 «5 N. Y. 274. United States v. Schneider, 21 Wash. 
 
 estate V. Kaiser, 134 Mo. 651 ; Com. L. Rep. (D. C.) 45 ; Shafer v. Lacock, 
 
 V. McCabe, 163 Mass. 98 ; People v. 168 Pa. St. 497 ; Springfield Cons. R 
 
 Wilson, 145 N. Y. 638; State v. Mar- Co. v. Welch, 155 III. 511. 
 
 tin, 124 Mo. 514: Boston & A. R Co. * Loyd v. State, 70 Miss. 251. 
 V. O'Reilly, 158 0. S. 334 ; Roach v. 
 
492 EULES OF EVIDENCK. 
 
 show screams of the deceased at various times, and her black 
 eyes and bruised face on different occasions, as well as her 
 alarm, without connecting the defendant with each one of 
 these occurrences;' and exclamations of the deceased and by- 
 standers, made just before the homicide, to the effect that the 
 accused was then coming with a gun, are admissible against 
 him as a part of the res gestm? So statements of a person mor- 
 tally wounded by officers that he did no wrong are admissible 
 against such officers as part of the res gestce, when made in 
 their presence and hearing;' and statements of a sheriff when 
 levying on property are admissible as a part of the res gestae in 
 an action by the owners of such property against the indemni- 
 tors of the sheriff; * and declarations of one killed at a railroad 
 station that he intended to take passage on a train are admis- 
 sible in an action for his death against the railroad company 
 as a part of the res gestae, when connected with the act of de- 
 parture/ So it is said that a statement of a conductor to a 
 passenger who has become alarmed for her personal safety by 
 the conduct of another passenger, as to the facts in the knowl- 
 edge of the conductor tending to show that such other passen- 
 ger was a madman, are a part of the res gestae in an action 
 against the company for the death of a third person killed by 
 such insane passenger;* and on a trial for murder the fact that 
 another person besides the prisoner had armed himself and 
 was hunting for the deceased, and the threats of such other 
 person against the deceased and his declarations as to his pur- 
 pose, have been held to be admissible as a part of the res gesta? 
 In Leonard v. Bolton^ the complainant's accusation of the re- 
 spondent during her travail as the father of her child was held 
 competent; and on a prosecution for murder a statement made 
 by the deceased immediately after he was knocked down as to 
 how the accident happened was allowed. 
 
 § 3. Documents. — Statements which have the character of 
 acts are frequently distinguished from those which are merely 
 
 iThaiede v. Utah, 159 U. S. 510. 5 Chicago, etc. E. I. R. Co. v. Chan- 
 
 2 State V. Biggerstaff, 17 Mout. 510 ; oellor, 165 III. 438. 
 
 Goon Bow V. People, 160 111. 438. » St. Louis, I. M. & S. R Co. v. 
 
 3Haely v. People, 163 III. 373. Gieenthal, 77 Fed. Rep. 150. 
 
 lEbeniriter v. Dahlman, 43 N. Y. ' Alexander v. United States, 138 
 
 Supp. 867, 19 Misc. Rep. 9 (1896). U. S. 353. 
 
 8 148 Mass. 66. 
 
HEAUSAY EVIDENCE. 493 
 
 narrative by the technical term res gestae. This term appears 
 to denote all facts which are relevant, whether consisting of 
 statements or not,' but is seldom used except for the purpose 
 of emphasizing the distinction in question. Whether in any 
 given case a document is res gestm or a medium of proof de- 
 pends, as in the case of any other facts, on the purpose for 
 which it is adduced with reference to the facts in issue. Thus, 
 A. writes a letter to B. complaining that on a certain date 
 he was dismissed from the service of C. because he refused to 
 join C. in the commission of a crime, and asking for pecuniary 
 aid from B. The alleged grounds of dismissal are false. If 
 proceedings are taken against A. either by C. for libel or by 
 E. for obtaining money by false pretenses, the letter may be 
 given in evidence as res gestcB creating liability. If, on the 
 other hand, in some other proceeding against A. the fact of 
 his service with C. should be brought in question, the letter 
 would be admissible against him, not as a relevant fact, but 
 as a medium of proof of the service admitted in it. When a 
 document is put in evidence as res gestm it excludes all other 
 evidence of the transaction which it records or constitutes; 
 whereas, when it is put in evidence as a medium of proof 
 merely, it is not exclusive evidence of the fact referred to in 
 it, but its contents may be corroborated or disproved or ex- 
 plained by other evidence. The distinction between a docu- 
 ment which is res gestm and one which is only a medium of 
 proof is well illustrated by the difference between a mere re- 
 ceipt and an accord and satisfaction. Documents which are 
 res gestm come into existence as such in various ways. There 
 are many acts for which writing is not prescribed by law, but 
 which, as a matter of convenience or for the purpose of pre- 
 serving a record of them, are committed to writing. These 
 may be acts of one party alone, as, for instance, a notice to quit 
 reduced to writing, where under the terms of the tenancy an 
 oral one would have sufficed, or a written gift of a chattel ac- 
 companied by delivery. But the most important cases consist 
 of contracts reduced by common consent into writing as a final 
 record of the terms agreed. It is not necessary that the con- 
 tract should be reduced to a single writing; it may be con- 
 taiaed in a series of letters or other documents; and it is for 
 
 1 Wright V. Doe, 7 A. & E. 313, 355. 
 
•1-9J: KULES OF ETIDENCE. 
 
 the court to determine whether on the face of the documents 
 it appears that they were intended to be the final and sole rec- 
 ord of the bargain between the parties — that is, in effect, the 
 very transaction itself.' 
 
 §4. Continuing circumstances, when res gestae. — Proof 
 of what a person said at the time of doing an act is admis- 
 sible as part of the res gestae to show its character, where it is 
 necessary to inquire into the general nature of the act or the 
 intention of the party who did it; that is to say: Declarations 
 springing out of the transaction, elucidating it, voluntary and 
 spontaneous, and made at the time of the transaction, or so 
 near to it as to reasonably preclude the idea of deliberate 
 design, and not a narrative of a past occurrence, are to be 
 regarded as part of the res gestoe? But while, as a general 
 rule, declarations, to be admissible as part of the res gestm, 
 must be contemporaneous with the event constituting the 
 principal fact, where there are connecting circumstances they 
 may form part of the whole res gestm, even when made some 
 time afterwards. That is to say, a declaration, to be a part 
 of the res gestce, need not be coincident in time with the main 
 fact proved, if the two are so closely connected that the dec- 
 laration can, in the ordinary course of affairs, be said to be a 
 spontaneous explanation of the real cause.' Thus, a declara- 
 tion of an unmarried woman that she intended to commit 
 suicide, made the day before her death, in a conversation re- 
 lating to her pregnancy, which continued until her death, is 
 not inadmissible, on a trial for her murder, as made at a time 
 remote from that of her death.'' So the whole conduct of a 
 county, before, at the time and after the issue of its bonds, 
 may be shown to aid in determining under Avhat statute and 
 by what authority the county proceeded in the issue of the 
 bonds.' 
 
 § 5. Declarations of agent or representative. — Whether 
 self-serving declarations are admissible or not depends upon 
 
 iWake V. Harrop, 6 H. & N. 768, 609; Jamison v. People, 145 111. 357; 
 
 775 ; Johnson v. Appleby, 43 L. J. C. People v. Pallister, 138 N. Y. 601, 51 
 
 P. 146. N. Y. State Rep. 725 ; Ortiz v. State, 
 
 2 Archer v. Helm, 69 Miss. 730. 30 Fla. 256. 
 
 'State V. Harris, 45 La. Ann. 63; *Com. v. Trefethen, 157 Mass. 180. 
 
 Missouri P. R. Co. v. Baier, 37 Neb. 5 Knox County v. New York -N. 
 
 235; Miller v. State, 31 Tex. Cr. Rep. Nat. Bank, 147 U. a 91. 
 
HEARSAY EVIDENCE. 495 
 
 whether they were made under such circumstances that they 
 are presumed to be instinctive; but if they may have been 
 the result of thought or deliberation they are not admissible.' 
 In case a principal is liable for the tort of his agent, state- 
 ments of his agent, made during the commission of the wrong, 
 are admissible as against the principal; but it is essential that 
 the statements or admissions should be part of the transac- 
 tion to which they relate,^ and while actually engaged in an 
 authorized act, or so soon thereafter as to constitute a part 
 of the res gestm? Thus, the declarations of an attorney will 
 not bind his client unless within the scope of his authority in 
 the proceedings in which he is engaged.* Statements made 
 by a book-keeper authorized to furnish them by his principal, 
 from books kept by him, are admissible against the principal.^ 
 
 50 the statement of the general agent of a corporation, in the 
 course of his employment, of a fact within his official knowl- 
 edge, relating to the status of a matter intrusted to him, is 
 admissible in behalf of a person with whom the corporation 
 was dealing at the time.' But the declarations of an agent, 
 although accompanying his acts, are no evidence of the extent 
 of his authority.'' 
 
 §6. Illnstrations. — (a) The declarations and admissions of 
 agents may be proved as part of the res gestae, but only when 
 made during the agency and in regard to a transaction de- 
 pending at the very time so as to constitute a part of the act.' 
 
 iWhitaker v. Eighth Ave. R Co., N. Y. State Rep. 64; Chipman v. 
 
 51 N. Y. 295; Waldele v. Railroad Union P. R. Co., 13 Utah, 68. 
 
 Co., 95 id. 274 ; Martin v. Railroad s Donovan v. Clark, 53 N. Y. State 
 
 Co., 103 id. 626 ; CoU v. Eastern Trans. Rep. 358, 138 N. Y. 631. 
 
 Co., 180 Pa. St. 618 ; Pierce v. Van « AKricultural Ins. Co. v. Potts, 55 
 
 Dusen, 47 U. S. App. 339. N. J. L. 158; Tryon v. White & C. 
 
 2Lahey v. Ottman, 73 Hun, 61, 56 Co., 63 Conn. 161; Hitchings v. St. 
 
 N. Y. State Rep. 108 ; New York, S. E, Louis, N. O. & O. C. & T. Co., 68 Hun, 
 
 & W. R. Co. V. Winter, 143 U. S. 60. 33, 53 N. Y. State Rep. 247. 
 
 'La Rue v. St. Anthony & D. E. 'Dowden v. Cryder,55 N. J.L.339; 
 
 Co., 3 S. D. 637 ; New Jersey Steam- O'Calaghan v. Barrett, 66 Hun, 633, 
 
 boat Co. V. Brockett, 121 U. S. 637. 50 N. Y. State Rep. 166 ; Wolf v. Bene- 
 
 * Lewis V. Duane, 69 Hun, 28, 53 diet, 65 Hnn, 634, 48 N. Y. State Rep. 
 
 N. Y. State Rep. 818 ; O'Brien v. 195 ; Donaldson v. Everhart, 50 Kan. 
 
 Weiler, 68 Hun, 64, 52 N. Y. State 718. 
 
 Rep. 17; Myers v. Cohn, 53 N. Y. 8 People v. Sherman, 133 N. Y. 349 ; 
 
 State Rep. 333 (1893) ; MoElwee Mfg. Anderson -j. Rome, etc. R. Co., 54 N. 
 
 Co. V. Trowbridge, 68 Hun, 28, 52 Y. 334 ; Philadelphia L. S. D. & Ins. 
 
496 EULES OF EVIDENCE. 
 
 They must also have been made while acting within the scope 
 of his authority, du7n fervet opus} Thus, where a husband 
 M'as general agent of his wife, and when he bought fertilizers 
 declared that they were for use on her farm, such declaration 
 is independent evidence that they were bought for that pur- 
 pose.^ 
 
 (5) The declarations of a person procuring a mortgage to 
 secure an antecedent debt, made on his way to procure it, are 
 admissible as part of the res gestm against the mortgagee on 
 the question of fraud and duress, irrespective of the agency of 
 such person for the mortgagee.' 
 
 (c) Evidence of what was said by a ticket agent to a passen- 
 ger upon the purchase of his ticket as to stop-over privileges 
 is admissible where the ticket was silent as to said privileges.* 
 They cannot be admitted on this ground, if subsequently made, 
 as a narrative of a past act, even though they relate to the 
 official duty of the declarant. It must affirmatively appear 
 that the declaration was made at the time and not afterwards.' 
 
 {d) Statements of an agent are admissible in evidence against 
 "the principal only when made touching matters of business 
 which he is transacting when they are made and which are 
 within the scope of his authority.* 
 
 {e) Agency cannot be proved by the declarations of the al- 
 leged agent.' 'Sov can it be proved by the testimony of the 
 agent in all cases.* 
 
 (y) The report of an employee of a railroad company as to 
 the killing an animal on the track is not admissible as evidence 
 on behalf of the company, unless it was shown that it was the 
 
 Co. V. Philadelphia & .E. R Co., 177 sWhitaker v. Eighth Ave. R Co., 
 
 Pa. St. 38. 51 N. Y. 399. 
 
 iBiackett v. Griswold, 138 N. Y. 6 sioux Valley State Bank v. Kel- 
 
 644 ; Bevis v. Baltimore & O. R. Co., logg, 81 Iowa, 134 ; Freiberg v. Bruns- 
 
 26 Mo. App. 19 ; Bensley v. Brock- wick Balke-Collender Co. (Tex. App.), 
 
 way, 27 111. App. 410; Southerland 16 S. W. Rep. 784 
 
 V. Wilmington & W. R Co., 106 N. C. 'Sax v. Davis, 81 Iowa, 692; Pep- 
 
 100; Passaic County Freeholders v. per v. Caineg, 138 Pa. St, 114; Gibson 
 
 Downie, 54 N. J. L. (25 Vroom), 223. r. J. Snow Hardware Co., 94 Ala. 346 ; 
 
 2 Jefferds v. Alvard, 151 Mass. 94. North v. Metz, 57 Mich. 613; Forbes 
 
 'Small V. Williams, 87 Ga. 681; v. Haas, 33 N. Y. State Rep. 107 (1890). 
 
 Western Union Tel. Co. v. Lydon, 82 " Deane Steam Pump Co. v. Green, 
 
 Tex. 364. 31 Mo. App. 269. 
 
 *New York, L. E. & W. R Co. v. 
 "Winter, 143 U. S. 60. 
 
.HEARSAY EVIDENCE. 497 
 
 duty and business of the employee to make such report and 
 that it was made contemporaneously with the occurrence.' 
 
 {g) Only general officers can bind corporations by their dec- 
 larations and admissions, and then only when engaged in the 
 transaction of business in the line of their duty.^ 
 
 (h) Where corporate agents are intrusted with the transac- 
 tion -of business requiring continuous negotiations, the author- 
 ity of the agent to bind his principal by his statements does 
 not terminate until the negotiations are at an end.' State- 
 ments of a foreman to a laborer under him are admissible.'' 
 So are the statements of an agent negotiating a lease.* So are 
 statements of a conductor to a passenger as to baggage.' 
 
 (*) The declarations of a person in charge of a business con- 
 cerning the business ordinarily transacted there are admissible 
 to bind the principal.' So are the declarations of a person 
 selling machinery, made at the time of the sale.* But the 
 statement of an opinion by an agent is not res gestce? 
 
 (_/) The declarations of a real-estate broker employed to 
 sell land, while on the land attempting to sell it, are admis- 
 sible."* So the statements of a street-car driver, just after he 
 had stopped the car and while a boy injured was still under 
 it, are admissible." So are those of an engineer;'^ and those 
 of a track-walker made to a section boss." 
 
 1 Jacksonville, T. & K W. R. Co. v. 8 Davis v. Sweeney, 80 Iowa, 391 ; 
 Wellman, 26 Fla. 344 Updyke v. Wheeler, 37 Mo. App. 680 ; 
 
 2 Chicago & St L. R. Co. v. Ashling, Eaham v. Deig, 121 Ind. 283. 
 
 34 111. App. 99 ; Post-Express Printing » De Soucey v. Manhattan E. Co., 
 
 Co. V. Coursoy, 57 Hun, 585, 32 N. Y. 39 N. Y. State R€»i. 79 (1891). 
 
 State Rep. 748 ; Abbott v. Seventy-six lo Lockwood v. Rose, 135 Ind. 588'; 
 
 L. & W. R. Co., 87 Cal. 323 ; Reynolds Holmes v. Turner's Falls Lumber Co;, 
 
 V. Iowa & N. Ins. Co., 80 Iowa, 563 ; 15 Mass. 535. 
 
 Goodbar v. City Nat. Bank, 78 Tex. " Quincy Horse R. Co. v. Cause 
 
 461; Phillip v. Herndon, 78 id. 378; (111.), 37 N. E. Rep. 190; Koetter v. 
 
 Marchaud v. Griffon, 140 U. S. 516. Manhattan El. R Co., 36 N. Y. State 
 
 sqieveland, C, C. & I. R. Co. v. Clos- Rep. 611, 129 N. Y. 669. 
 
 ser, 136 Ind. 348, 43 Alb. L. J. 209. '^ Hermes v. Chicago & W. R Co., 
 
 «Gulf, C. & S. F. R. Co. V. Wilson, 80 Wis. 590; Hooker v. Chicago, M. 
 
 33 Am. St. Rep. 845. & St P. R. Co., 76 id. 543. 
 
 •Corson v. Berson, 86 Cal. 433. is Texas & P. R. Co. v. Lester, 75 
 
 6 Hampton v. Pullman Palace Car Tex. 56; Gorman v. Minneapolis & 
 
 Co., 43 Mo. App. 134. St L. R. Co., 78 Iowa, 509. But see 
 
 'Ingalls V. Averitt, 34 Mo. App. Beasley v. San Jose Fruit Packing 
 
 371. Co., 93 Cal. 388. 
 
 32 
 
498 EULES OF EVIDENCE. 
 
 {k) Declarations of an agent made concerning business of 
 his principal, contained in letters to third persons, if relevant 
 are competent.^ But declarations of an agent made after a 
 transaction is fully completed and ended are hearsay, and not 
 admissible as part of the res gestm? 
 
 {l) As a general rule, statements made by the husband in 
 the absence of the wife are not binding upon her.' But it is 
 difiPerent where both husband and wife claim in common by 
 adverse possession.* And the declarations of a husband in 
 purchasing land in his own name, where he has the deed made 
 to his wife, are admissible.^ 
 
 (m) Oral declarations of counsel in a judicial inquiry are not 
 admissible in evidence as admissions of fact so as to bind his 
 client.^ 
 
 (n) The admissions of an administrator are competent if 
 made while engaged in the performance of some act relating 
 to the estate; but such act should be such as called for and 
 made the declaration pertinent, and the declaration should ac- 
 company such act so as to constitute a part of the i'es gest<B.'^ 
 
 § 6a. Statements inter alios. — No person is to be affected 
 by the acts or words of others unless he is connected with them 
 either personally or by those whom he represents or by whom 
 he is represented. The expression ^^ inter alios" does not mean 
 that the act must be the act of mor^ than one person; Nor does 
 it make any difference that the act was done or confirmed by 
 oath ; consequently the sworn evidence of a witness in one caUse 
 or proceeding cannot be made available in another cause or pro- 
 ceeding between other parties. When the person whose words 
 or acts are offered in evidence is also the opposite partj' to the 
 
 1 Penn Mut. Life Ins. Co. v. Keach, 3 Koehler v. Miller, 21 III. App. 
 33 111. App. 427, 134 111. 583. 557. 
 
 2 Wise V. Grant, 59 Hun, 466, 37 ■ « Hurley v. Lockett, 73 Tex. 363. 
 N. y. State Rep. 39 ; Stone v. Polanu, « Con.liu v. Masecar, 80 Mich. 139 ; 
 58 HUn, 31, 33 N. Y. State Rep. 437; Holmes Organ Co. v. Pelitt, 84 Mo. 
 Cake's Appeal, 110 Pa. St 65; Chat- App. 536. 
 
 tauooga R. R. & C. R. Co. v. Liddell, ^ Ander.son v. McAleenan, 29 N. Y. 
 
 85 Ga. 483; Chicago & St. L, R. Co. State Rep. 406, 15 Daly, 444; Crockett 
 
 V. Ashling, 34 111. App. 99: Hellmuth v. Althouse, 35 Mo. App. 404; Shiner 
 
 V. Katschke, 35 id. 31 ; Sherman v. v. Abbey, 77 Tex. 1. 
 
 Oneonta, 59 Hun, 394, 36 N. Y. State 7 Davis v. Gallagher, 124 N. Y. 487. 
 
 Rep. 587. But see Central Railroad 
 
 & Bkg. Co. V. Skellie, 90 Ga. 41. 
 
HEAESAY EVIDENCE. 499 
 
 suit, the evidence is further inadmissible by virtue of another 
 important principle, — that no man shaSiUbe allowed to make 
 evidence for himself.^ The true meaniri^df the rule is simply 
 this : that a party is not to be affected by what is done behind 
 his back. Thus, if the question between plaintiff and defend- 
 ant were whether the former had paid a sum of money to D., 
 a receipt by D. acknowledging payment to him by the plaint- 
 iff of the money in question would not per se be evidence of 
 such payment as against the defendant^ it being res inter alios 
 acta; and yet it would be admissible, as part of the res gestcB, 
 for the purpose of proving such payment.^ So when the mat- 
 ter in issue consists of an act which is separable from the per- 
 son of the accused, who is nevertheless accountable for it, proof 
 may be given of that act before he is connected with it by evi- 
 dence. An illustration is afforded by prosecutions for con- 
 spiracy, where it is a settled rule that general evidence may 
 be given to prove the existence of a conspiracy before the ac- 
 cused is shown to be connected with it,' for here the corpus 
 delicti is the conspiracy, and the participation of the accused 
 is an independent matter which may or may not exist. 
 
 § 7. Declarations as to state of health. — "Whenever there 
 is a question as to the state of health at a particular time of 
 some person who has since died, the statements of such person 
 at the time or soon afterwards with regard to his bodily feel- 
 ings and symptoms are admissible in evidence. This exception 
 has sometimes been spoken of as part of the res gestae,^ but the 
 leading case would seem to show that it is admitted as a me- 
 dium of proof, and that the guaranty of its credibilitj'^ consists 
 in the spontaneity of the declaration.' In any view it would 
 seem that such statements are only admissible when they are 
 
 1 1 Greenl. Ev., § 52 ; 1 Whart. Ev., Harris v. Howard, 56 Vt. 695 ; Boyd 
 § 39 ; Mailler v. The Express Propeller v. United States, 143 U. S. 450 ; Cos- 
 Line, 61 N. Y. 312, 316 ; Cole v. Com., telo v. Crowell, 139 Mass. 588. 
 5 Gratt. 696 ; State v. Shuford, 69 N. C. 2 Carmarrhen & Cardigan Ry. Co. 
 486;Schaserv. State,36Wis.439;Ma- v. Manchester & Milford Ey. Co., 
 guire V. Middlesex R R. Co., 115 Mass. L. R. 8 C. P. 685. 
 339; Cohen v. Cohen, 2 Mackie, 227; sr. v. Blake, 6 Q. B. 126; R. v. Es- 
 State V. Parker, 96 Mo. 382; State v. daile, 1 Post. & F. 213. 
 Alston, 94 N. C. 930; Franklin v. Frank- < Doe v. Ridgway, 4 B, & A. 53, 55, 
 lin, 90 Tenn. 44 ; Aiken v. Kennison. 58 6 East, 198, 194. 
 Vt 665 ; Newhall v. Appleton, 103 N. 5 Avesou v. Kinnaird, 6 East, 196. 
 Y. 133; Benedict V. Rose, 24 S. C. 297 ; 
 
600 EULES OF EVIDENCE. 
 
 contemporaneous with or closely follow the symptoms to 
 which they relatesd MAveson v. Kinnaird' the symptoms de- 
 scribed extended"b^k over several days, but the illness was 
 continuous and severe; in other cases the declaration would 
 seem to have had relation to contemporaneous symptoms. 
 
 § 8. Statements of party injured to his physician and 
 others. — While, as a general rule, declarations made out of 
 court by a party are not admissible as evidence in his behalf, 
 his statements to his attending physician of the nature of the 
 symptoms of his malady or suffering have quite uniformly 
 been held admissible; and in some cases evidence of a non- 
 medical witness that a person who had received an injury 
 manifested pain by screaming is competent because it is ap- 
 parently involuntary and may corroborate what appears to 
 be his condition. And it makes no difference whether the 
 cries and exclamations are articulate or inarticulate, — neither 
 partake of the character of mere narrative, but are the natural 
 exponents of a bodily or mental state.^ The rule of the admissi- 
 bility of statements made to physicians by persons who have 
 been physically injured or are suffering from disease is not an 
 unqualified one. They must relate to present and not past 
 pain and suffering.' And while it was held in Madison v. IST. 
 Y. C. E. Co.* that expressions of pain and suffering made by 
 the injured person to physicians when they were examining 
 him were competent evidence, notwithstanding the examina- 
 tion was made by them with a view of testifying as to the re- 
 sult of it in a suit then pending, the contrary was held in 
 Grand Eapids & Ind. R Co. v. Huntley^ and in Jones v. Pres. 
 etc. of Portland.^ It may be seen that when attended by a 
 
 13 C. & Kir. 354. Co. v. Henderson, 89 Ala, 510; Dow- 
 
 n Gieenl. Ev., § 103; Phillips v. len v. State, 14 Tex. App. 61; Blair v. 
 
 Kellj', 29 Ala. 638; Sanders v. Eeis- Madison Co., 81 Iowa, 313; Harris v. 
 
 ter, 1 Dak. 151 ; Kearney v. Farrell, Detroit R. R. Co., 75 Mich. 237 ; Plum- 
 
 38 Conn. 317 ; Shailer v. Bumstead, mer v. Ossipee, 59 N. H. 55 ; Glass v. 
 
 99 Mass. 113; Green v. Bedell, 48 N. Bennett, 89 Tenn. 478; Morton v. 
 
 H. 546 ; Frink v. Coe, 4 Greene (Iowa), State, 91 Tenn. 437 ; Continental Car 
 
 555; Denton v. State, 1 Swan, 279; Co. v. Pruitt, 65 Tex. 125. 
 
 Bacon v. Charlton, 7 Cush. 581 ; Par- ^Towle v. Blake, 48 N. H. 93. 
 
 ker V. Steamboat Co., 109 Mass. 449 ; « 35 N. Y. 487. 
 
 Hagenlooher v. Coney Island & B. R. 5 38 Mich. 538. 
 
 Co., 99 N. Y. 136; McKeighe v. egSMich. 59& 
 
 Janesville, 68 Wis. 50 ; Western U. Tel. 
 
HBAESAT EVIDENCE. 501 
 
 physician for the purpose of treatment there is a strong in- 
 ducement for the patient to speak truly of his pain and suffer- 
 ing, while it may be otherwise when medically examined for 
 the purpose of creating evidence in his own behalf. It is for 
 this reason that the weight of judicial authority is to the effect 
 that the statements expressive of their present condition are 
 permitted to be given as evidence only when made to a phy- 
 sician for the purpose of treatment by him.^ In Davidson v. 
 Cornell the court say : " In the present case the declarations 
 of the plaintiff were not instinctive, nor were they made to the 
 physician with a view to medical treatment. They consisted 
 not of exclamations of present pain or suffering, but were the 
 plaintiff's statements, so far as called for b}'- the doctor, of the 
 effect upon him of the injury and the consequences which had 
 followed in such respects from the time it occurred, a period 
 of nearly fifteen months. This was hearsay, and is very dif- 
 ferent from that of a medical witness as to the expressions by 
 a patient or person suffering from injury or disease indicating 
 pain or distress or expressive of the present state of his feel- 
 ings in that respect." ^ 
 
 Bare exclamations or expressions of present pain or suffer- 
 ing by an injured person, at and after the injury, are admis- 
 sible in an action for the injury;' and the fact that such 
 exclaniations are made during the pendency of the suit for 
 damages for the injury complained of does not affect their 
 admissibility.* Thus, in an action for malpractice, evidence 
 
 1 Roche V. Brooklyn City, etc. R. Granby, 47 Conn. 59; Thomas v. 
 Co., 105 N. Y. 394, 7 N. Y. State Rep. Herrall, 18 Greg. 546 ; Drew v. Sutton, 
 361; Davidson v. Cornell et al., 132 55 Vt 586; Newman v. Dodson, 61 
 N. Y. 228, 43 N. Y. State Rep. 887 ; Tex. 91 ; Fleming v. Springfield, 154 
 Barker V. Masin, 11 Allen, 832; Fay Mass. 520 ; Commissioners v. Leggett, 
 V. Harland, 128 Mass. 244. 115 Ind. 544; Stewart v. Everts, 76 
 
 2 Chapin v. Marlborough, 9 Gray, Wis. 35. 
 
 244 ; Morrissey v. Ingliam, 11 Mass. 63 ; 3 Cleveland, C, C. & St. L. R Co. v. 
 
 State V. Belcher, 13 S. C. 459; Gray Prewitt, 134 Ind. 557; Girard v. Kal- 
 
 V. McLaughlin, 36 Iowa, 279 ; Roosa amazoo, 92 Mich. 610 ; Chicago, St. L. 
 
 V. Boston Loan Co., 132 Mass. 439 ; & P. R. Co. v. Spilker, 33 Am. L. Reg. 
 
 Collins V. Waters, 54 111. 485 ; Denton 753. 
 
 V. State, 1 Swan, 279 ; Fay v. Har- « Kansas City, Ft S. & M. R. Co. v. 
 
 land, 128 Mass. 244 ; Matteson v. N. Stoner, 51 Fed. Rep. 649 ; Schuler v. 
 
 Y. Cent R R Co., 62 Barb. 364; Third Ave. R Co., 48 N. Y. State Rep. 
 
 Towne v. Blake, 48 N. H. 92 ; Earl 663 (1893). 
 v. Tapper, 45 Vt 275; Wilson v. 
 
502 KULES or EVIDENCE. 
 
 of exclamations of suflfering by the injured person is admis- 
 sible.i And the mere lapse of time between the exclamations 
 and the injnry is not the test of admissibility.'^ The bald state- 
 ment, made long after an injury by the party injured to a third 
 person, that he suffers from pain, ought not to be admitted as 
 in any degree corroborative of his testimony as to the extent 
 of his pain. Prior to the time when parties were allowed to 
 be witnesses, the rule in this class of cases permitted evidence 
 of this nature.' These cases show that the evidence was not 
 confined to the time of the injury or to the mere exclamations 
 of pain. The admissibility of the evidence was put upon the 
 necessity of the case, as being the only means by which the 
 condition of the sufferer as to enduring pain could in many in- 
 stances be proved. Substantially the same class of evidence 
 was admitted in England, and for the same reason. 
 
 Now evidence of exclamations indicative of pain made by 
 the party injured is admissible when it is of a nature which 
 substantially corroborates the party injured as to his condi- 
 tion. But there is a clear distinction between an exclamation 
 of pain and simple declarations of a party that he was then 
 suffering pain but giving no other indications thereof. Evi- 
 dence of exclamations, groans and screams is now permitted, 
 more upon the ground that it is better and clearer and a more 
 vigorous description of the then existing physical condition of 
 the party by an eye-witness than could be given in any other 
 way. It characterizes and explains such condition. Thus, in 
 Hagenlocher v. C. I. & Brooklyn R. Co.,* it was shown that 
 the foot was very much swollen, and so sore that the sheet 
 could not touch it. How was the condition of soreness to be 
 shown better than by the statement that, when so light an 
 article as a sheet touched the foot, the patient screamed with 
 pain? It was an involuntary and natural exhibition and proof 
 of the existence of intense soreness and pain therefrom. True, 
 it might be simulated, but this possibility is not strong enough 
 
 1 Link V. Sheldon, 136 N. Y. 1, 48 v. Urlin, 158 U. 8. 271 ; East Tennes- 
 N. Y. State Rep. 830 ; Hewitt v. Eisen- see, V. & G. R. Co. v. Smith, 94 Ga. 
 bart, 36 Neb. 794. 580; Block v. Milwaukee Sti-eet R 
 
 2 State V. Mulkern, 85 Me. 106 ; State Co., 89 Wis. 371. 
 
 V. Bedard, 65 Vt 278. But see People ' Caldwell v. Murphy, 11 N. Y. 416 ; 
 V. Stewart, 97 Cal. 318; Richards v. Werly v. Persons, 38 id. 345. 
 State, 36 Neb. 71 ; Northern P. R Co. ^ 99 N. Y. 136. 
 
HEAESAT EVIDENCK. 503 
 
 to outweigh the propriety of permitting such evidence as fair, 
 natural and original corroborative evidence of the party as to 
 his then physical condition. ,Its veeight and propriety are not, 
 therefore, now sustained upon the old idea of the necessity of 
 the case. But evidence of simple declarations of a party, 
 made some time after the injury, and not to a physician for 
 the purpose of being attended professionally, and simply mak- 
 ing the statement that he or she is then sufiPering pain, is 
 evidence of a totally different nature, is easily stated, liable 
 to gross exaggeration, and of a most dangerous tendency, 
 while the former necessity for its admission has wholly ceased. 
 As is said in Eoche v. Brooklyn City & 'N. E. Co.,' " the neces- 
 sity for giving such declarations in evidence, where the party 
 is living and can be sworn, no longer existing, and that being 
 the reason for its admission, the reason of the rule ceasing, 
 the rule itself, adopted with reluctance and followed cautiously, 
 should also cease." With the rule as herein announced there 
 can be no fear of a dearth of evidence as to the extent of the 
 injury and the suffering caused thereby. The party can him- 
 self be a witness, if living, and, if dead, the suffering is of no 
 moment,, as it cannot be compensated for in an action by the 
 personal representative, heirs or widow, and the exclamations 
 of pain, the groans, the sighs, the screams, can still be admit- 
 ted. But it seems that the bald statement, made long after 
 the injury, by the party, that he suffers from pain, cannot be 
 admitted as in any degree cori-oborative of his testimon^^ as 
 to the extent of his pain. And it is now definitely settled that 
 a party cannot support his own testimony by proof of decla- 
 rations to the same effect made to persons other than a physi- 
 cian who is at the time in attendance professionally. But 
 evidence of exclamations which are natural concomitants and 
 manifestations of pain and suffering are still admissible, be- 
 cause regarded as voluntary and natural expressions, which a 
 witness may describe for the same reason that he may the ap- 
 pearance of the party. There is no imaginary line somewhere 
 between a few hours and a few days or a few weeks, on one 
 side of which declarations in favor of a party are admissible 
 in evidence, while on the other they are inadmissible. Unless 
 
 1 105 N. Y. 234, 7 N. Y. State Rep. 361. 
 
504 EULES OF EVIDENCE. 
 
 such complaints form a part of the res gestm they cannot be 
 admitted. And if they are so far detached from the occur- 
 rence as to admit of deliberate design and be the product of a 
 calculating policy on the part of the actors, then they cannot 
 be regarded as part of the res gestae} 
 
 The entire value of the class of hearsay evidence now under 
 discussion depends upon its spontaneity, and is predicated upon 
 the idea that, being spontaneous, springing from the act itself, 
 and forming a part of it in point of time before any idea of 
 deliberate design or purpose to make evidence for each other 
 has entered the minds of the parties, it tends to explain, unfold 
 and throw light upon the transaction.^ It is for this reason 
 and on this ground that the declarations of a party who has 
 been injured and is suffering from the effects of the injury are 
 admissible to show the extent of such suffering.' Thus, when- 
 ever the bodily or mental feelings of a person are material, the 
 usual expressions of such feelings made at the time in question 
 are, as to such facts, original evidence. Therefore, exclama- 
 tions of pain and complaints of suffering resulting either from 
 sickness or an injury to the person are treated as original evi- 
 dence to prove the fact and extent of suffering,* but not to 
 prove the cause thereof, unless made at such time as to entitle 
 them to be regarded as part of the res gestae.^ Thus, expres- 
 sions and complaints of a person injured, at the time of or very 
 soon after the accident, as to his sufferings and strange feel- 
 ings in certain portions of his body, are admissible in evidence 
 when the injury was of a nature to produce the symptoms. It 
 has been held that as the question as to whether they were 
 real or feigned is for the jury, the lapse of time after the ac- 
 cident affected their weight but not their admissibility." But 
 
 1 Kennedy v. Rochester City & B. * Territory v. Godfrey, 6 Dak. 46; 
 E. Co., 130 N. Y. 654, 41 N. Y. State Tobin v. Fairport, 12 N. Y. Supp. 224; 
 Rep. 339. Blair v. Madison County, 81 Iowa, 
 
 2 Com. V. MuUin, 150 Mass. 894; 318; Smith v. Dittman, 34 N.Y. State 
 Keyes v. State, 122 Ind. 527 ; Penn- Rep. 303, 16 Daly, 427. 
 
 sylvania R. Co. v. Lyons, 129 Pa. St. 5 stiles v. Danville, 42 Vt 282; Per- 
 118; Rains v. State, 88 Ala. 91; Peo- kins v. Concord, 44 N. H. 223; Mat- 
 pie V. O'Neil, 112 N. Y. 355, 20 N. Y. terson v. New York Cent. R Co., 35 
 State Rep. 754. N. Y. 487. 
 
 3 Burnhara v. State, 38 Tex. 662 ; « Texas & P. R Co. v. Barron, 78 
 State V. Euzebe, 42 La, Ann. 17; Tex. 421; Birmingham U. R. Co. v. 
 Fulcher v. State, 28 Tex. App. 465. Hale, 90 Ala. 8; Rhodes v. State, 138 
 
HEAKSAY EVIDENCE. 505 
 
 . declarations of the plaintiff in an action for personal injuries, 
 of pain and suffering a few hours after the accident, to one not 
 a phj'sician in attendance professionally are incompetent,^ al- 
 though it is said that the. testimony of the physician who 
 attended one injured by negligence that when he first saw her 
 she was complaining of pain from an injury she said she had 
 received is competent.^ So are declarations and ejaculations 
 indicative of pain and suffering made by a woman upon whom 
 it is charged that an abortion has been performed.^ On a 
 prosecution for rape, the fact of the woman having made com- 
 plaint soon after the commission of the offense, and that she 
 named the person who committed it, is held to be competent.* 
 The detailed statement of the prosecutrix of the circumstances 
 of the offense cannot be given in evidence by either party to 
 whom she made the statement.' The same rule prevails in a 
 charge of assault with intent to commit rape.' This is on the 
 ground that a declaration of a party as to a past transaction is 
 not competent.' Thus, a physician or other person cannot de- 
 tail statements of a past transaction made to him by a person 
 alleged to have been injured.* 
 
 II. DECLAEATIONS OP ASSIGNOE AGAINST ASSIGNEE. 
 
 § 9. In general. — It is a proposition that cannot be ques- 
 tioned that a grantor cannot, after the execution of his deed, 
 
 Ind. 189, 35 Am. St. Rep. 429. See Ryan » State v. Campbell, 20 Nev. 133; 
 
 T. Porter Mfg. Co., 57 Hun, 353, 82 State v. Knapp, 45 _N. H. 148; State 
 
 N. Y. State Rep. 631. v. Jones, 61 Mo. 333; Pefferling ». 
 
 1 Kennedy v. Rochester, C. & B. R. State, 40 Tex. 486; State v. Kinney, 
 Co., 180 N. Y. 654, 41 N. Y. State Rep. 44 Conn. 153 ; Burt v. State, 23 Ohio 
 329. St 394 ; State v. Freeman, 100 N. C. 
 
 2 Birmingham U. R Co. v. Hale, 90 439 ; Brown v. People, 36 Mich. 203. 
 Ala. 8. 6 People v. Goulette. 82 Mich. 36 ; 
 
 'Rhodes v. State, 128 Ind. 189. Barnes v. State, 88 Ala. 204; McMur- 
 
 4 Ellis V. State, 25 Fla. 702; Lee v. rin v. Rigby, 80 Iowa, 333; Kirby v. 
 
 State, 74 Wis. 45 ; McMurrin v. Rigby, Territory, 28 Pac. Rep. (Ariz.) 1134. 
 
 80 Iowa, 333; 1 Greenl. Ev., § 103; 7 Kelly v. Detroit, L. & N. R Co., 80 
 
 Burt V. State, 23 Ohio St. 394 ; State Mich. 237. 
 
 V. Warner, 74 Mo., 83 ; State v. Niles, s Stewart v. Everts, 76 Wis. 35 ; 
 
 47 Vt. 82 ; Griffin v. State, 78 Ala. 29 ; Olp v. Gardner, 48 Hun, 169, 15 N. Y. 
 
 State V. Clark, 69 Iowa, 294 ; Dunn v. State Rep. 544 ; Laughlin v. Grand 
 
 State, 45 Ohio St. 249 ; People v. Rapids R Co., 80 Mich. 154. 
 
 O'SuUivan, 104 N. Y. 481; McMath 
 
 V. State, 55 Ga. 303. 
 
506 EULES OF EVIDBNCE. 
 
 lawfully do any act to prejudice the rights of his grantee, nor 
 are his declarations, confessions or admissions to be admitted 
 against the grantee. The reason why the declarations or 
 statements of a party are ever admissible is that they affect 
 his title or possession and characterize the same while owner 
 or in possession, and are consequently binding upon the party 
 making the same and his privies. As a general rule, declara- 
 tions made by a party in possession of real estate, as to his 
 interest or title in the property, may be given in evidence 
 against those who subsequently derive title under him, in the 
 same manner as they could have been used against the party 
 himself if he had not parted with his possession or interest. 
 On the other hand, it is equally well settled that no declara- 
 tion of a former owner of the property, made after he had 
 parted with his interest therein, can be received in evidence to 
 affect the legal or equitable title to the premises. It is true 
 the rule is well settled, in our own and the English courts, 
 that the declarations of the person in possession of the prem- 
 ises, as to his title, are admissible against the person making 
 the same and all who claim title under him.' But in all these 
 cases the possession was that of a person claiming title and 
 acting in accordance with such claim, and not by one disclaim- 
 ing title, and declaring at the time that his possession was not 
 that of owner but at the will or sufferance of another, the real 
 owner. Thus, declarations made by the grantor of premises, 
 after he has sold the same, even though he continues in the 
 occupation of the same up to the time of making such decla- 
 rations, are not competent evidence as affecting the rights of 
 the grantee.^ But oral admissions made by one who at the 
 time held the title to land, to the effect that he had con- 
 tracted by parol to sell the same to another, and had received 
 pay therefor, are competent evidence against all persons 
 claiming title under or through him.' The principle upon 
 which such evidence is received is that the declarant was so 
 situated that he probably knew the truth, and his interests 
 
 1 Pitts V. Wilder, 1 N. Y. 535; Fry 469; Shea v. Murphy, 164 111. 614; 
 V. Stowera, 93 Va. 13. Barry v. Libbey, 166 Mass- 112. 
 
 2 Vrooman v. King, 36 N. Y. 477 ; 3 Chadwick v. Fonner et al., 69 N. 
 Oggerton v. Dodge County, 97 Ga. Y. 404. 
 
HEARSAY EVIDENCE. 507 
 
 were such that he would not have made the admissions to the 
 prejudice of his title or possession unless they were true. The 
 regard which one so situated would have to his own interest 
 is considered sufficient security against falsehood. In some 
 of the states of the Union and in England, the admissions of a 
 prior owner of choses in action and other personal property 
 characterizing or affecting his title are also admitted in evi- 
 dence upon the same principle against those subsequently tak- 
 ing title from him. But admissions and declarations of the 
 assignor are not competent evidence in favor of the assignee, 
 unless part of the res gestcB of an act properly in evidence and 
 relevant to the issue.^ 
 
 § 10. Declarations before vendor became owner,— Admis- 
 sions and declarations made by the assignor before he became 
 owner are wholly incompetent against the assignee, except 
 that, when it is relevant to prove that as owner of the claim 
 he had notice of any fact, declarations made previous to owner- 
 ship, showing a then present knowledge of the fact, may be, 
 within reasonable limits, evidence to go to the jury tending 
 to show notice at the time when he dealt with or possessed 
 the thing assigned.''' The assignor's admissions and declara- 
 tions, made after he ceased to be owner, are equally in- 
 competent against the assignee, unless the evidence connects 
 the assignee with them ; and it makes no difference that the 
 assignment is only as collateral.' Thus, a mortgagee, having 
 parted with his interest, cannot by his subsequent conduct or 
 admissions bind his assignee.* But if the assignee is only a 
 nominal party suing for the assignor's benefit, they are com- 
 petent.' If, however, the assignee is the real party in interest, 
 
 1 Howard v. Upton, 9 Hun, 434. § 713 ; Pringle v. Pringle, 59 Pa. St. 
 But see Shannon v. Minney, 130 Pa. 289 ; Eby v. Eby, 5 id. 435 ; Woodruff 
 St. 380; Bates v. Lingerwood, 50 v. Cook, 25 Barb. 505; Beville v. 
 Hun, 420, 20 N. Y. State Rep. 778; Jones, 74 Tex. 14S; Scofield v. Spaul- 
 McKay v. Lasher, 31 N. Y. State Rep. ding, 54 Hun, 523, 28 N. Y. State 
 690, 131 N. Y. 437: Dean v. Wilker- Rep. 108; Noyes v. Morris, 56 Hun, 
 son, 126 Ind. 338; Fowler v. Simpson, 501, 31 N. Y. State Rep. 608; Casto v. 
 79 Tex. 611. Frye, 33 W. Va. 449. 
 
 2 Bond V. Fitzpatricb, 4 Gray, 89. ismith v. Gillum, 80 Tex. 120; 
 
 3 Rawson v. Plaisted, 151 Mass. 71 ; Davis v. Green, 102 Mo. 170. 
 Towner v. Thompson, 81 Ga. 171 ; 1 » Eaton v. Carson, 59 Me. 510. 
 Greenl. Ev., § 190; Taylor on Ev., 
 
508 EDLES OF EVIDENCE. 
 
 the fact that the action is in the name of the assignor does 
 not render competent his declarations made subsequent to 
 the transfer.! go an assignor's again acquiring possession 
 does not let in declarations made during the renewed posses- 
 sion and relating to the former period.^ It is only where the 
 party making the declarations has, at the time of making them, 
 the title to the property, that such declarations bind his suc- 
 cessor in interest. Declarations made before or after that 
 time are not admissible.' Declarations of a grantor subse- 
 quent to the execution and to the delivery of a deed are in- 
 admissible to show that it was intended as a mortgage;* and 
 this is so although when the declarations were made the 
 grantor had not surrendered actual possession of the premises.-' 
 So the declarations of one whose land has been sold under ex- 
 ecution and purchased by his son are inadmissible to establish a 
 resulting trust in the father's favor." 
 
 § 11. Yendor of chattels or choses in action. — The general 
 rule is that a former owner of a chattel or a chose in action 
 who has transferred his interest to another by an' absolute 
 sale or assignment cannot, by his subsequent admissions, affect 
 the right of the purchaser. In some cases such admissions 
 may be admissible, but only where there is an identity of in- 
 terest between the assignor and the assignee, which is deemed 
 to exist where the transfer is merely colorable or nominal, and 
 where a party claims through another by representation, and 
 the declaration is not excluded by some other rule of evidence.'' 
 As a general rule, the declarations of a grantor which form no 
 part of the o^es gestce are not competent to prejudice the title of 
 his grantee, especially when made after the transfer.* In Gibney 
 V. Marchay ' it was held that the declarations of a party in pos- 
 session of real property are admissible against the party making 
 
 1 Freare v. Evertson, 20 Johns. 143. But see Speucer v. N. Y. & N. E. R. 
 
 2 Cornett v. Fain, 33 Ga. 819 ; Til- Co., 62 Conn. 242. 
 
 son V. Tervvilliger, 56 N. Y. 273. ' Holmes v. Roper et al., 56 N. Y. 
 
 ,3 Hutchins v. Hutchins, 98 N. Y. State Rep. 596, 141 N. Y. 64 ; W. B. 
 
 64. Grimes & G. Co. v. Malcolm, 164 U. S. 
 
 4 Jones V. Jones, 137 N. Y. 610, 51 483. 
 
 N. Y. State Rep. 75. scuyler v. McCartney, 40 N. Y. 
 
 5 Hart V. Randolph, 142 111. 521. 221 ; Burhans v. Kelly, 17 N. Y. State 
 
 6 Evans v. McKee, 153 Pa. St. 89. Rep. 553 (1888). 
 
 34 N. Y. 301. 
 
HEAESAY EVIDENCE. 509 
 
 them or his privies in blood and estate, but not competent to 
 attack or destroy a title which is of record. In Yrooman v. 
 King' it was also held that declarations made by a grantor of 
 premises after he had sold them, though he continued in the oc- 
 cupation up to the time of making such declarations, were not 
 competent evidence as affecting the rights of his grantee. In 
 Hutchins v. Hutchins^ it was said : " It is only where the party 
 making the declarations has, at the time of making them, the 
 title to the property that such declarations bind his successor." 
 In McDuffie v. Clark' it is said : " The declarations of a party 
 in possession are evidence against the party making them, or 
 his privies in blood or estate, not to attack or destroy the 
 title, for that is of record and of a higher and stronger nature, 
 and cannot be attacked by parol evidence. Such admissions 
 are received in evidence simply to explain the character of the 
 possession in a given case." In Adams v. Davidson* the dec- 
 larations of the assignor before the delivery of the property 
 assigned as to the purpose of the assignment were admitted 
 in evidence. In that case the transaction was incomplete 
 when the declarations were made, as no delivery of the prop- 
 erty assigned had taken place. In Loos v. "Wilkinson^ the 
 conveyance was a secret one, and the declarations of the 
 grantors were to the effect that they still owned the prop- 
 erty. Such declarations were held competent on the ground 
 that they were a part of the fraud, and it was there said: 
 " They are in the nature of res gestm declarations, and on the 
 question of fraud clearly competent." In Scofield v. Spaul- 
 ding ^ it was held that, in an action to set aside a conveyance 
 as fraudulent against creditors, declarations of the grantor 
 made after the deed was delivered and recorded, and his tes- 
 timony in proceedings supplementary to execution, were inad- 
 missible as against the grantee, even though the grantor was 
 in possession under a lease which was claimed to form part of 
 the fraudulent transaction. In Truax v. Slater ' it was held 
 
 136 N. Y. 477. 55 Kan. 773; Eppinger v. Scott, 112 
 
 2 98N. Y. 64. Cal. 869. 
 
 ' 39 Hun, 170. "54 Hun, 538, 38 N. Y. State Rep. 
 
 * 10 N. Y. 309. 108. 
 
 '' 110 N. Y. 195, 18 N. Y. State Rep. ' 86 N. Y. 630. 
 110; Burlington Nat. Bank v. Beard, 
 
510 ROJLKS OF EVIDENCE. 
 
 that the declarations of an assignor of a chose in action form- 
 ing no part of the res gestm are not competent to prejudice the 
 title of the assignee, whether the assignment be for value or 
 merely for the benefit of creditors, and whether the declara- 
 tions be antecedent or subsequent to the assignment. In Tilson 
 V. Terwilliger' it was held that the declarations of a vendor 
 in possession of chattels sold after he has once parted with the 
 possession and then received them from the vendee were hear- 
 say, and that they did not come within the variations from, 
 nor the exceptions to, the rule which excludes hearsay evi- 
 dence; that the}' are not the declarations of, an assignor of 
 chattels who without a break continues his possession thereof 
 after he has made a real or pretended sale. Such declarations 
 are received as part of the res gestm on the ground that they 
 show the nature, object or motives of the act which they ac- 
 company and which are the subject of inquiry. But, to be a 
 part of the res gestm, they must be made at the time of the act 
 done which they are supposed to characterize; they must be 
 intended to unfold the nature and quality of the facts whiek 
 they are intended to explain ; they must so harmonize with 
 those facts as to form one transaction ; there must be a trans- 
 action of which they are considered a part ; they must be con- 
 comitant with the principal act, and so connected with it as to 
 be regarded as the result and consequence of co-existing mo- 
 tives. In Hutchins v. Hutchins ^ it is held that the declara- 
 tions of a former owner of property, made before or after the 
 time when he held title, do not bind his successor in interest. 
 In Adams v. Davidson' it was held that the declarations of an 
 assignor as to the object of making an assignment, made by 
 him after its execution and while he continued in possession 
 of the property, were evidence against the assignor and cred- 
 itors claiming under the assignment. In Cuyler v. McCartney* 
 the court say : " For the purposes of this case it is not neces- 
 sary to hold that, where a transfer is sought to be impeached 
 on the ground that it was fraudulent, the admissions of the 
 assignor while continuing in the possession of the property, not 
 
 >56N. Y. 273. 810N. Y. 309. 
 
 2 98N. Y. 56. <40N. Y. 235. 
 
HEARSAY EVIDENCE. 511 
 
 having consummated it by an actual surrender of the property 
 to the transferee, are incompetent as evidence of the fraud." 
 
 §12. Made at time of selling. — While the rule is unques- 
 tioned that the mere declarations of a prior holder of a chose 
 in action cannot be given in evidence to affect the title or the 
 rights of a subsequent holder and owner, the rule does not 
 apply where the declarations are made at the time when the 
 chose in action is negotiated to the person who is seeking to 
 enforce it, as they are thus a part of the res gestm. Declara- 
 tions thus made qualify, and in some sense attach to, the plaint- 
 iff's title. They are not conclusive and may be controverted,, 
 and if untrue the real truth may be shown.^ 
 
 § 13. Tendee must be a purchaser for value to exclude 
 declarations. — It seems that a vendee of chattels or an as- 
 signee of a chose in action must be a purchaser for value in 
 order to exclude the declarations of a prior party in interest, 
 from whom he derived title made before such parting with 
 his interest. Thus, where an assignee ofa chose in action is 
 seeking to collect the same, and the alleged debtor resists pay- 
 ment on the ground of payment, etc., he is entitled to show 
 the declarations of the assignor or vendor made prior to the 
 assignment, in case the assignee is not a purchaser for value. 
 It seems that the rule of evidence applied in Bond v. Fitz- 
 Patrick^ is the proper rule. In that case it was held that in a 
 suit against the maker of a promissory note by one who took 
 it when overdue, the declarations of a prior holder, made while 
 he held the note, after it was due, are admissible in evidence 
 to show payment to such prior holder or any right or set-off 
 which the maker had against him.' 
 
 § 14. Declarations of assignor for benefit of creditors 
 prior to assignment. — In an action to set aside a general as- 
 signment as fraudulent as against creditors, the declarations 
 of the assignor made prior to the execution of the assignment 
 are competent evidence. The relation between the assignor 
 and his assignee creates an identity of interest between them, 
 
 1 Grain V. Wright, 46 111. 107 ; Hay- 2 4 Gray, 89. 
 slep V. Gymer, 1 A. & E. 162 ; Ben- s Flagler v. Wheeler, 40 Hun, 139. 
 jamin v. Rogers, 126 N. Y. 60, 36 
 N. Y. State Rep. 393. 
 
512 UTILES OF ETIDENCE. 
 
 ■which makes the assignor's declarations evidence against his 
 assignee. But if made subsequent to the assignment and de- 
 livery of the property they would be inadmissible.^ 
 
 §15. Illustrations. — (1) There does not seem to be any 
 general or universal rule in respect to the admission of evi- 
 dence of the assignor's acts and declarations against his own 
 interest made during his ownership. The ISTew York rule, 
 recognized also in the supreme court of the United States, is 
 that the oral declarations or admissions of the former holder 
 of any chose in action or personal property, even if made be- 
 fore his transfer, are not competent evidence against the trans- 
 feree, unless there is present identity of interest between them, 
 or the vendee is not a purchaser for value." 
 
 (2) The rule in some states declares the assignor's acts and 
 declarations against his interest made during his ownership 
 universally competent against all assignees except transferees 
 of negotiable paper. Thus, on the question of ownership of 
 personal property, -declarations made by one while in the full 
 possession, control and use of the property are admissible 
 against one claiming under him.' Thus, the declarations and 
 acts of a grantor on putting the grantee into possession of the 
 land are admissible in an action involving the question of the 
 boundary between such land and lands reserved by the deed, 
 where the description cannot be reconciled by the locatibn of 
 a fence marking such boundary when possession was given.* 
 And a declaration as to the character of a right of way made 
 by a predecessor in defendant's title is admissible in evidence 
 against defendant.' 
 
 (3) Admissions and declarations of the owner of a note al- 
 ready due, against his own interest, are competent against a 
 subsequent assignee.' So declarations or admissions of a dece- 
 dent are admissible against one who claims title to the prop- 
 
 1 Kennedy v. Wood, 53 Hun, 46, 33 3 Maus v. Borne, 123 Ind. 533 ; Beard 
 N. Y. State Rep. 133 ; Niagara Falls v. Minneapolis First Nat. Bank, 41 
 Paper Co. v. Sterling, 35 N. Y. Civ. Minn. 153 ; Fry v. Feemster, 36 W, 
 Pro. Rep. 351. Va 454; Taylor v. Arnold, 13 Ky. L. 
 
 2 Freedman's Sav. & T. Co. v. Dodge, Rep. 516. 
 
 93 U. S. 379 ; Jones v. East Society, * Harris v. Oakley, 130 N. Y. 1, 40 
 
 etc., 21 Barb. 174 ; Luco v. De Toro, N. Y. State Rep. 485. 
 91 Cal. 405; Sparks v. Brown, 46 Mo. » Bennett v. Riddle, 150 Pa. St. 430. 
 •App. 539. 6 Kane v. Torbit, 33 111. App. 3U. 
 
heaesat: etidence. 513 
 
 erty in controversy by purchase from decedent's administrator,* 
 and also against the decedent's widow.^ Thus, the declarations 
 of a decedent binding him, or binding or impairing his estate, 
 are admissible in evidence against his personal representatives 
 where they would have been competent against himself.^ 
 
 (4r) Taylor and Greenleaf require evidence of an identity 
 of interest between the assignor and assignee to admit these 
 declarations. (1) That the assignee is the mere agent of the 
 assignor, or (2) that he took title with actual notice of the true 
 state of that of the assignor.^ In all cases it must appear that 
 they were made before the transfer and against interest.^ Thus, 
 declarations made by a person in explanation of the character 
 and extent of his possession of land, and against his interest, 
 are competent against one claiming title under him^ and as to 
 boundaries.' And whenever the admissions of one having or 
 claiming title to real estate would be competent against him, 
 they are competent against persons subsequently deriving title 
 through or from him.' 
 
 (5) In an action on a life insurance policy it is competent 
 for the defendant to show that shortly before deceased began 
 to insure his life, witness, at his request, attempted to raise 
 money for him, and, upon informing deceased of his inability 
 to do so, deceased replied that he must have money and would 
 commit suicide if he could not raise it.' So declarations of 
 an insured, after the issue of a certificate to him which gives 
 him a right to change the beneficiary, are admissible against 
 the beneficiary.'" 
 
 (6) In an action by a receiver to set aside a general assign- 
 ment, the declarations of assignors as to their insolvency be- 
 
 iBush V. Barron, 78Tex. 5. « Ellis v. Harris, 106 N. C. 395 1 
 
 2 Mississippi County v. Vowels, 101 Shaw v. Starr, 75 Tex. 411; Youngs 
 
 Mo. 325 ; Wilson v. Simpson, 80 Tex. v. Cunningham, 57 Mich. 153 ; John- 
 
 279; Tyres v. Kennedy, 126 Ind. 533. son v. Cox, 81 Ga. 25. 
 
 SHurlburt v. Hurlburt, 138 N. Y. 'Wood v. Fiske, 63 N. H. 173; 
 
 420, 40 N. Y. State Rep. 486 ; Herscher Hurley v. Lockett, 73 Tex. 263. 
 
 T. Brazier, 88 III. App. 654 ; Barker v. s Baird v. Slaight, 55 Hun, 603, 28 
 
 Smith, 92 Mich. 336. N. Y. State Rep. 667. 
 
 *1 Taylor on Ev. 713; 1 Greenl., 9 Smith v. National Ben. Soc, 123 
 
 § 190. N. Y. 85. 
 
 'Ball V. Loomis, 29 N. Y. 416; i» Steinhausen v. Preferred Mut 
 
 Haile v. Morgan, 25 S. C. 601; Jer- Ace. Ass'n, 59 Hun, 386, 36 N. Y. 
 
 main v. Denniston, 6 N. Y. 276. State Rep. 70. 
 33 
 
514 RULES OF EVIDENCE. 
 
 fore but not after the assignment are admissible both against 
 the assignor and assignee.^ 
 
 (7) Acts and declarations of a vendor in possession after 
 the sale are competent evidence against the vendee on the 
 question of the character and purpose of the sale;^ but' not to 
 impeach the deed in an action to set aside for fraud and decep- 
 tion.' 
 
 (8) The rule that an assignor cannot after assignment in- 
 validate the title of the assignee by declarations applies only 
 in aid of honafide assignees for value.^ 
 
 III. CONSPIEATOES — DBCLAEATIONS OF. 
 
 § 16. In general. — It is a general rule that, where several 
 persons are proved to have combined together for the same 
 illegal purpose, everything said, done or written by any one of 
 the conspirators in the execution or furtherance of their com- 
 mon purpose is to be deemed as so said, done or written by 
 every one.' But prima facie evidence must first be given of 
 the existence of the conspirac}'^ ; that is, common design must 
 first be shown, before the statements or declarations made by 
 one of them, in the absence of the others, can be given in evi- 
 dence against the others ; ^ that is to say, the general rule is 
 that where sufficient proof of a conspiracy has been given to 
 establish the fact prima facie in the opinion of the judge, the 
 acts and declarations of each conspirator in the furtherance of 
 the common object are competent evidence a,gainst all. But to 
 make the declaration competent it must have been made in fur- 
 therance of the prosecution of the common object, or constitute 
 a part of the res gestae of some act done for that purpose. A 
 mere rehearsal of something already done for the accomplish- 
 
 1 Kennedy v. Wood, 53 Hun, 46, 48 La. Ann. 1409; Hunter v. State, 112 
 32 N. Y. State Rep. 133. Ala. 77. 
 
 2 Neal V. Foster, 34 Fed. Rep. 496. « Rutherford v. SchattmaB, HON. Y. 
 sWortliington v. Worthington 604, 28 N. Y. State Rep. 847; Peopln 
 
 (Md.), 20 Atl. Rep. 911. v. Kief, 87 id. 477, 126 N. Y. 661 ; Jolm- 
 
 <Kochv. Lyons, 83 Mich. 518. son v. State, 87 Ala. 39; State v. 
 
 sPatton V. State, 6 Ohio St. 467; Brady, 107 N. C. 832 ; Moore v. Shields, 
 
 Johnson v. State, 87 Ala. 39 ; Com. 131 Ind. 367: Barclay v. Copeland, 83 
 
 V. Smith, 153 Mass. 97 ; Preston v. Cal. 493 ; Wicks v. State, 28 Tex. App. 
 
 Bowers, 13 Ohio St. 1, 18; Drake v. 448; Farrar v. Snyder, 31 JIo. App. 
 
 Stewart, 40 U. S. App. 173; State v. 93; Hopkins v. Stuart, 89 Minn. 90. 
 
 Green, 48 S. 0. 136 ; State v. Griffin, 
 
HEAESAT EVIDENCE. 515 
 
 ment of the object of the conspirators is not competent evidence 
 against the others.^ The principle is substantially the same as 
 that of principal and agent. When various persons conspire 
 to commit an offense, each makes the others his agents to carry 
 the plan into execution. . 
 
 § 17. Criminal conspiracy. — The gist of the crime of con- 
 spiracy consists in' a corrupt agreement between two or more 
 individuals to do an unlawful act — unlawful either as a means 
 or as an end. The agreement may be established by direct 
 proof or by inference as a deduction from conduct which dis- 
 closes a common design on the part of the persons charged 
 to act together for the accomplishment of the unlawful pur- 
 pose. The formation of a common design by two or more 
 persons is never simpUciter a criminal conspiracy. This may 
 be, and often is, perfectly innocent. The criminal quality re- 
 sides in the intention of the parties to the agreement, con- 
 strued in connection with the purpose contemplated. The 
 mere fact that the conspiracy has for its object the doing of 
 an act which may be unlawful, followed by the doing of such 
 act, does not constitute the crime of conspiracy, unless the 
 jury find that the parties were actuated by a criminal intent. 
 In many cases this inference would be irresistible ; in others the 
 jury might find that although the object of the agreement and 
 the overt act were unlawful, nevertheless the parties charged 
 acted under a misconception or in ignorance, without any- 
 actual criminal motive. The actual criminal or wrongful pur- 
 pose must accompany the agreement, and if that is absent the 
 crime of conspiracy has not been committed.^ If the guilt 
 of one of several persons who are charged with crime is 
 sought to be established by evidence showing or tending to 
 show a conspiracy between him and the others for the com- 
 mission of the act, evidence as to acts or statements of the 
 others must be confined to such as were made or done at 
 times when the proofs in the case permit of a belief that a 
 conspiracy existed, and when, therefore, the acts or statements 
 might have been in furtherance of the common design. What- 
 
 ' People V. Davis, 56 N. Y. 95 ; Ben- 267 ; People v. Oldham, 111 Cal. 648 ; 
 
 nett V. State, 62 Ark. 516; Nicolay Wagner v. Aulenbach, 170 Pa. SL 
 
 V. Mallery, 63 Minn. 119 ; Wibovg v. 495. 
 
 United States, 163 U. S. 633; Jenkins '^People v. Flack et al., 125 N. Y. 
 
 V. State, 85 Fla. 737, 48 Am. St. Rep. 324, 34 N. Y. State Rep. 732. 
 
616 EULES OF EVIDENCE. 
 
 ever may have been said or done by the several persons ac- 
 cused of conspiring to commit the crime before the time when, 
 according to the evidence, the conspiracy was formed, or sub- 
 sequent to the time when the conspiracy terminated by the 
 accomplishment of the common purpose or by abandonment, 
 is inadmissible.' Declarations and acts of other members of a 
 conspiracy are inadmissible to show the connection with the 
 conspiracy of one charged with being a member thereof.^ 
 Such acts and declarations are inadmissible if made after the 
 common enterprise is at an end or before the party against 
 whom the acts and declarations are offered had become a 
 party to it.' But where a conspiracy is conclusively proved, 
 evidence is admissible of the statements of one defendant as 
 against another if made while the conspiracy existed.* 
 
 § 18. Illustrations. — (a) Declarations of co-conspirators at 
 a time before the formation of the conspiracy are inadmissible 
 against each other.^ So after the conspiracy has come to an 
 end, whether by success or failure, the admissions of one con- 
 spirator by way of narrative of past facts are not admissible 
 in evidence against the others.* Thus, the existence of a con- 
 spiracy to procure an indictment and conviction on a criminal 
 charge cannot be established by acts and declarations of one 
 conspirator in the absence of the others after the trial and 
 acquittal of the one conspired against, since the conspiracy 
 ceased when the indictment and conviction failed.' 
 
 (&) When a conspiracy has been proved, sayings and move- 
 ments of the co-conspirators before the perpetration of the 
 principal act are admissible against the defendant, although 
 occurring in his absence.* So is evidence of what other con- 
 
 iPeopIe V. Kief, 126 N. Y. 661, 37 6Loganv.UnitedStates,144U.S.263. 
 
 N. Y. State Rep. 477 ; Jenkins v. State, 'Roberts v. Kendall, 3 Ind. App. 
 
 35 Fla. 737, 48 Am. St. Rep. 367; Peo- 339; Stokes v. United States, 157 U. 
 
 pie T. Oldham, 111 Cal. 648; Wagner S. 187; Adams v. State, 34 Fla. 185; 
 
 V. Aulenbach, 170 Pa. St 495. State v. Rogers, 54 Kan. 683; People 
 
 2 United States v. Newton, 52 Fed. v. Daniels, 105 Cal. 263 ; People v. 
 
 Rep. 275; Wiborg v. United States, McKane, 143 N. Y. 455; Com. v. 
 
 163 U. S. 632. Smith, 163 Mass. 411. 
 
 sstatev. Grant, 86 Iowa, 216. STravers v. Snyder, 38 111. App. 
 
 <Statev. Minton, 116MO.303; Com. 379; Williams v. Dickerson, 28 Fla, 
 
 V. Moore, 157 Mass. 324. 90; Clark v. State, 28 Tex. App. 189; 
 
 5 Baker v. State, 80 Wis. 416. State v. Cram, 67 Vt. 650; State v. 
 
 Thibodeaux, 48 La. Ann. 600. 
 
HEiESAY EVIDENCE. 5lT 
 
 spirators had planned before the defendant had joined them, 
 where he subsequently acted with them, and the same pur- 
 pose was expressed and executed while he was with them.' 
 And conversations explanatory of acts of different persons 
 tending to show the details of a conspiracy which resulted in 
 murder may be shown, although made before the conspiracy 
 and not in the presence of defendant.^ So where there is evi- 
 dence tending to show a conspiracy to burn a house for the 
 purpose of obtaining insurance, evidence of acts and declara- 
 tions of some of the conspirators, after the fire, in regard to 
 the disposition of the property, is admissible as against all, as 
 being in furtherance of the common design.' And while proof 
 of what was actually done is admissible to show a conspiracy,* 
 declarations of co-conspirators, in order to be evidence, must 
 be made in furtherance of the conspiracy and not in casual 
 conversation with neighbors.* 
 
 (c) Where words or writings of alleged conspirators are not 
 acts in themselves nor part of the res gestae, but a mere nar- 
 rative of some part of the transaction, nor as to the share 
 which other persons have had in the execution of a common de- 
 sign, they are not admissible against others than the speaker. 
 Thus, a confession by an alleged confederate, just before he 
 was hanged by a mob, is inadmissible.* So are the declara- 
 tions of a co-defendant, subsequent to the completion of the 
 joint criminal enterprise, as against his co-defendant.'' So evi- 
 dence of statements made before the commission of the crime 
 by one jointly indicted with defendant, but who is not on 
 trial, is inadmissible where no conspiracy has been shown.' 
 In Taylor County v. Standley ' it was held that only such 
 statements of a co-conspirator as were made while the conspir- 
 
 • Holtz V. state, 76 Wis. 99 ; Ben- Minn. 335 ; Chesbro v. Powers, 78 
 
 nett V. State, 62 Ark. 516 ; Hunter v. Mich. 473. 
 
 State, 112 Ala. 77. * Com. v. Meserve, 154 Mass. 284. 
 
 2 State V. Munohrath, 78 Iowa, 268 ; '" State v. McGee, 81 Iowa, 17. 
 
 Allen V. Com., 11 Ky. L. Rep. 555 ; " Mitchell v. Com., 12 Ky. L. Rep. 
 
 McFadden v. State, 28 Tex. App. 458. 
 
 341. 7 state v. Hilderbrand, 105 Mo. 318 ; 
 
 3Com. V.Smith, 153 Mass. 97. And Crosby v. People, 137 111. 825. 
 
 see Cole V. Lake Shore & M. S. R. Co., 8 Belcher v. State, 125 Ind. 419; 
 
 81 Mich. 156 ; State v. Thaden, 48 Walls v. State, id. 400. 
 
 9 79 Iowa, 666. 
 
518 ETHj;s of evidence. 
 
 aoy was in progress, and in furtherance thereof, are admissible 
 in evidence against a defendant; and letters of a private 
 nature, written to others than a conspirator, are not admissible 
 except as against the writer. 
 
 § 1 9. Declarations as to ownership. — Declarations as to 
 the ownership of property, made by a person in possession 
 thereof, are admissible as against him and all persons claiming 
 under him, upon an issue as to such ownership, as part of the 
 res gestm; ' and declarations by one in possession of land, as to 
 his title, are admissible upon an issue as to such ownership;^ 
 and the intention with which possession of land is held may 
 be shown by the assertion of the occupant;' and the declara- 
 tions of a party in possession of land, that one who claims 
 title under an old sheriff's deed is the owner, are admissible;* 
 so are the declarations of a party that be bid in the property 
 for another.' The admissibility of declarations of the vendor 
 of goods characterizing his possession, while, he is in full pos- 
 session of the goods, is not confined to uses where fraud in 
 the transfer is alleged. But the acts and declarations of one 
 in possession of land as tenant are inadmissible to show either 
 title or want of title in the landlord.' 
 
 § 30. Acts and declarations as to fraud and fraudulent 
 conveyances,— The general rule that declarations of a party, 
 made after he has parted with his interest in the subject- 
 matter, cannot be received to disparage the right or title of 
 one who acquired the same before such declarations, does not 
 apply to transfers of property made for the purpose of de- 
 frauding creditors.' At least for the purpose of showing the 
 assignor's intent, his acts and declarations are admissible to 
 show a conspiracy between himself and his assignee to so ma- 
 nipulate the property as that it shall be lost to the real cred- 
 itors.' To impeach the validity of a conveyance on the ground 
 
 1 Lawman v. Sheetes, 124 Ind. 416 ; 487, 120 N. Y. 666, 14 N. Y. State Rep. 
 Cunningham v. Fuller, 35 Neb. 58; 355; Humes v. Proctor, 151 N.Y. 520. 
 High V. Pancake, 42 W. Va. 602. 5 Schmidt v. Huff, 83 Tex. 97 ; Guest 
 
 2 Rutledge v. Hudson, 80 Ga. 266. v. Guest, 74 Tex. 664. 
 
 'Youngs V. Cunningham, 57 Mich. ^ Warren v. Fredericks, 76 Tex. 647; 
 
 153 ; Jacobs v. Callaghan, id. 11 ; John- Hendricks v. McDaniel, 80 Ga. 102. 
 
 son V. Johnson, 80 Ga. 360 ; Smith v. ' Smith v. Boyer, 29 Neb. 76 ; Sher- 
 
 Putnam, 63 N. H. 369 ; Henderson v. man County Bank v. McDonald, 57 
 
 Wanamaker, 49 U. S. A pp. 174, 79 Kan. 358. 
 
 Fed. Rep. 736. s Pease v. Batten, 56 Hun, 643, 31 
 
 * Hasbrouck v. Burhans, 47 Hun, N. Y. State Rep. 57 ; Harton v. Lyons, 
 
 97 Tenn. 180. 
 
HBAESAT EVIDENCE. 519 
 
 of fraad, declaFations of a vendor or vendee tending to reveal 
 the character of the transaction are admissible, when made at 
 or prior to the time of sale and after ground has been laid for 
 the claim of fraudulent collusion.^ Thus, declarations of a 
 grantor who has retained possession of the land conveyed 
 after the execution of the conveyance, made during his pos- 
 session and explanatory thereof, are admissible.^ So are the 
 acts, and declarations of the insured, before the transfer of a 
 policy of insurance on his life, which tend to show a fraud on 
 the insurance company, it being a part of the res gestae? So 
 are the statements of a decedent, made in furtherance of an 
 alleged fraudulent agreement to suffer judgment on a fic- 
 titious claim.* So, where an assignment of notes belonging 
 to an insolvent debtor was a part of a transaction by which 
 his whole property was distributed to certain of his creditors 
 in fraud of the others,, whatever was said or done by any of 
 the parties in the transaction, or by one of the assignees in 
 furtherance of the transaction, is a part of the res gestae and 
 is evidence' against all such parties.' So evidence of a fraud- 
 ulent intent, in a vendor is admissible with a view to show a 
 participation therein by the vendee.^ But evidence of a con- 
 versation between a deputy-sheriff who levies an attachment 
 upon goods and the vendor thereof, against whom the levy is. 
 made, is incompetent to affect the vendee's title, unless con- 
 temporaneous with the sale, or the evidence shows that the 
 sale is a joint scheme to defraud creditors.' Where a sale of 
 goods has been induced, by fraudulent representations of the 
 vendee, evidence of the representations is admissible in an ac- 
 tion against the sheriff, who has levied upon them as the 
 property of the vendee.' But to render the declarations of a 
 grantor who has remained in possession after the grant ad- 
 missible against his grantee to prove fraud, it must distinctly 
 
 iGrimesv. Hill, 15 Colo. 359; Pal- eCiosland v. Mutual Sav. Fund, 
 
 mer v. Gilmore, 148 Pa, St. 48. 121 Pa. St. 65 ; Desberber v. Harring- 
 
 2 Mobile Sav. Bank v. McDonnell, ton, 28 Mo. App. 632; Robinson v. 
 
 89 Ala. 434; 18 Am. St. Rep. 137. Woodmansee, 80 Ga. 549. 
 
 a Smith v. Nat Ben. Soc, 133 N. Y. ' Flannery v. Van Tassell, 131 N. 
 
 85, 33 N. Y. State Rep. 67. Y. 649, 43 N. Y. State Rep. 334 
 
 «Spaulding V. Albin, 63 Vt. 148. 8 Lewis v. Flack, 31 N. Y. State 
 
 SKlei V. aQflheinjer, 133 U. & 367. Rep. 282,. 16 Daly, 240. 
 
520 ETJLES OP EVIDENCE, 
 
 appear that the declarant was an occupant at the time.' And 
 where a conveyance of personalty is attacked by creditors as 
 fraudulent, the declarations of the seller, made after the con- 
 veyance, are not admissible as against the purchaser's title, in 
 the absence of proof of identity of interest and design between 
 the parties.^ Thus, where there is no evidence showing a con- 
 spiracy between the mortgagor and mortgagee to defraud 
 creditors of the former, his declarations after he executed it, 
 impeaching the mortgage, made in the absence of the mort- 
 gagee, are mere hearsay and inadmissible ; ' and declarations 
 of a debtor to third persons as to his intention in confessing 
 judgment to one of his creditors are not admissible in evi- 
 dence to defeat the judgment as against such creditors, with- 
 _ out previous proof that the latter was a party to the debtor's 
 frandulent intention.* 
 
 § 21. Acts and declarations of or in presence of donor, 
 testator or intestate. — Declarations of a person since de- 
 ceased, or of a testator or intestate, are admissible in some 
 cases. Thus, on the question of a gift of personal property, 
 declarations and acts of the donor, before or about the time 
 of acceptance, declaring her purpose, are admissible to show 
 intention and the character of the acts performed in relation 
 to the alleged gift, and also as against interest ; ' and also to 
 show delivery.^ Thus, a declaration of a decedent that he has 
 promised his housekeeper that she should be paid for waiting 
 on him is competent in evidence against his executors.' The 
 ex parte declarations of a decedent as to his intended disposi- 
 tion of notes, a cancellation of which is alleged to have been 
 procured by the maker by undue influence, is admissible in 
 evidence on behalf of the payee's legal representative suing 
 on the note.' And where there has been plenary proof of an 
 
 1 Noyes v. Morris, 56 Hun, 501, 31 « Miller v. Clark, 40 Fed. Rep. 15. 
 N, Y. State Rep. 608. e Porter v. Gardner, 60 Hun, 571, 39 
 
 2 Bergan v. Producers' Marble Co., N. Y. State Rep. 671 ; People v. Doyle, 
 72 Tex. 53 ; Lewis v. Rice, 61 Mich. 97. 58 Hun, 535 ; Sullivan v. Salt Lake 
 
 3 McLeraore v. Powell, 33 S. C. 583 ; City, 18 Utah, 123. 
 
 Fink V. Algermissen, 35 Mo. App. 186; 'Harrington v. Hickman, 148 Pa. 
 
 Freiberg v. Freiberg, 74 Tex. 133 ; St 401 ; Re Starkie's Appeal, 61 Conn. 
 
 Kintzel v. Kintzel, 138 Pa. St. 71. 199. 
 
 ^Unanast v. Gkjodyear India Rub- 8 Smith v. Loaf man, 145 Pa. St. 638'j 
 
 ber Glove Co., 141 Pa. St. 137 ; Gue- Lurie v. Radnitzer, 166 III. 609. 
 bert V. Zick, 81 111. App. 890. 
 
HEAESAT EVIDENCE. 521 
 
 alleged parol gift by a deceased person, subsequent declara- 
 tions of the donor, inconsistent with the gift, is inadmissible.' 
 Where a devise is, on the face of it, clear and intelligible, but 
 from CxXternal circumstances an ambiguity arises as to which 
 of two or more things or persons the testator referred to, it 
 being legally certain that he intended one or the other, evi- 
 dence of his declarations, of the instructions given for his will, 
 and of other circumstances of like nature, is admissible to de- 
 termine his intention.^ So the declarations of a testator as to 
 his testamentary intention are admissible when probate is re- 
 sisted on the ground of fraud, undue influence or surprise ; ' 
 at least to show the state of his mind previous to the ex- 
 ecution of the will;* and on the question of his testament- 
 ary capacity ; ' and that the testator intended to make some 
 changes as he did make in the codicil.* So the acts and dec- 
 lajations of the parties participating in the execution of a will 
 are admissible as part of the res gestm? And declarations 
 made by a testator before his death, that he intended to 
 destroy a will previously made by him, are competent to 
 strengthen the presumption that the will, which is not found 
 after his death, was destroyed with the intention of revok- 
 ing it.' 
 
 § 22w Telephone conversation. — While it is held in Wilson 
 V. Coleman' that testimony as to questions asked by the wit- 
 ness' clerk through a telephone, of a third party, and the 
 clerk's statements to the witness of the replies of such party 
 to the questions, was inadmissible as hearsay, it does not seem 
 to conflict with the case of Globe Printing Co. v. Stahl,!" in 
 which it Is held that evidence of an answer purporting to 
 come from the defendant, received over a wire connecting the 
 defendant's telephone with that of the plaintiff, in response 
 to an inquiry made through the same medium by the plaint- 
 iff, is admissible without positive proof that the defendant 
 sent the answer. But in J. Obermann Brew. Co. v. Adams " 
 
 1 Bennett v. Cook, 28 S. C. 353; Maxwell v. Hill, 89 Tenn. 584; Clark 
 Doherty v. Gilmore, 136 Mo. 414 ; v. Turner, 50 Neb. 290. 
 
 Mersman v. Mersman, 136 Mo. 244. ' Chaney v. Home F. & F. M. Soc., 
 
 2 Coulam V. DouU, 133 U. S. 216. 28 III. App. 31. 
 
 ' Gardner v. Frieze, 16 R. L 19. ^ Behrens v. Behrens, 47 Ohio St. 
 
 * Thompson v. Ish, 99 Mo. 161. 323, 42 Alb. L. J. 436. 
 
 » Jones V. Roberts, 37 Mo. App. 163. » 81 Ga. 297. 
 8 Hammond v. Dike, 42 Minn. 273 ; i" 33 Mo. App. 451. 
 
 11 35 111. App. 540. 
 
522 EULES OF ETIDENCE. 
 
 the court say : '-' Evidence of a conversation by telephone be- 
 tween plaintiff and a person supposed to be at defendant's 
 office is inadmissible against the defendant, where there is no 
 proof as to who the said person was." In the case of Eock 
 Island & P. E. Co. v. Potter ' it was held that an answer in 
 response to a telephone inquiry by plaintiff may be proved 
 against defendant as being prima facie an answer by its 
 agent. In Oskamp v. Gadsden ^ the court say : " A telephone 
 conversation between parties to a suit may be admissible in 
 evidence, although, owing to the conditions of the atmosphere, 
 the parties were unable to communicate directly with each 
 other, but did so through the medium of an operator at an 
 intermediate station, who received the communication from 
 each of them and transmitted it to the other." And in Mis- 
 souri P. E. Co. V. Heidenheimer ' the court say: "Evidence 
 of a demand made by telephone upon a railroad company for 
 the delivery of goods is not inadmissible because the witness 
 cannot state the name of the person with whom he conversed, 
 when he states that he recognized the voice as that of an em- 
 ployee of the railroad freight office, with whom he had trans- 
 acted business for that office." 
 
 The admissions, declarations and statements of a party con- 
 veyed through the medium of a telephone are competent evi- 
 dence, if it appears that the party testifying to such statements 
 knew in some satisfactory way that the party whose state- 
 ments he is testifying to was speaking with him ; that is to 
 say, if the party was acquainted with such party and recog- 
 nized his voice, or if it appear in some satisfactory way that 
 such person was speaking with him. The perfection to which 
 the invention of the telephone has been brought has immensely 
 facilitated the intercommunication of individuals at distant 
 points ; and inasmuch as the voice of the speaker is heard in 
 most if not in all cases, the identification of the speaker should 
 be possible.* 
 
 1 36 111. App. 590. * Murphy v. Jack et al, 143 N. Y. 
 
 ii 35 Neb. 7, 17 L. E. A, 440. 215, 58 N. Y. State Eep. 458. 
 
 3 83 Tex. 195. 
 
CHAPTEE XY. 
 
 OPINIONS AND CONCLUSIONS. 
 
 L OF OPINIONS AND CONCLUSIONS. 
 
 § 1. In general, 
 
 a General rule. 
 
 3. Illustrations. 
 
 4 When opinions allowable. 
 
 5. Opinions not allowable when. 
 
 IT. FORM OP QUESTIONS AND ANSWERS. 
 
 01. WHAT WITNESSES MAT STATE 
 OPINIONS. 
 
 IV. OPINIONS AS TO QUANTITY, DIS- 
 TANCE, SPEED, TIME. 
 
 V. CARE, SKILL, NEGLIGENCE - 
 CAUSE OF ACTION. 
 
 ■PROPER 
 
 VL SANITY AND MENTAL CAPACITY. 
 
 VIL MOTIVES, INTENT, THOUGHTS, BE- 
 LIEF. 
 
 Till. OPINIONS AS TO LEGAL QUES- 
 TIONS. 
 
 IX OPINIONS WHEN FACTS AS TO CON- 
 TRACTS. 
 
 X. PHYSICAL CONDITIONS. 
 XL HANDWRITING. 
 
 § 6. Autograph and holograph. 
 
 7. Comparison of. 
 
 8. Cross-examination on other writ- 
 
 ings. 
 
 XII. APPEARANCE, IDENTITY, AGE, 
 QUALITY. 
 
 XUI. LOCATION, LANGUAGE. 
 
 XIV, MISCELLANEOUS. 
 
 XV. OPINIONS OF NON-EXPERTS. 
 
 I. OF OPINIONS AND CONCLUSIONS. 
 
 § 1. In genei'al. — As a general rule, opinions are competent 
 only when the witness is shown to have special knowledge of 
 the subject of inquiry ; ' and expert evidence is inadmissible 
 as to a subject which does not require peculiar habits of study 
 to enable a person to understand it ; ^ and the opinion of a 
 witness who neither knows nor can know more about the 
 subject-matter than the jury, and who must draw his deduc- 
 tions from the facts already in the possession of the jury, is 
 inadmissible.' 
 
 While we recognize fully the diiHculty of laying down a 
 rule as to when expert evidence is admissible and when it is 
 not, it is a general rule that witnesses who are skilled in 
 science and art, and those who from experience and special 
 study have peculiar knowledge upon the subject of inquiry 
 
 " Laing v. United N. J. R & C. Co., 3 gt. Louis, I. M. & S. R. Co. v. Yar- 
 54 N. J. L. 516. borough, 56 Ark. 613. 
 
 2 Overby v. Chesapeake & O. R Co., 
 87 W. Va. 534 
 
524 EULES OF EVIDENCE. 
 
 which jurors have not, may testify not only to facts but may 
 also give their opinions as experts. No rule, however, can be 
 made so precise as to include all cases ; and each question as it 
 arises must be determined by the application of general prin- 
 ciples to the peculiar inquiry involved in the case before the 
 court. While it is no longer a valid objection to the expres- 
 sion of an opinion by a witness that it is upon the precise 
 questions which the jury are to determine,^ evidence of that 
 character is only allowed when from the nature of the case 
 the facts cannot be stated or described to the jury in such 
 manner as to enable them to form an accurate judgment 
 thereon, and no bettor evidence than such opinions is attain- 
 able.^ Familiar examples of the admission of evidence of 
 this character are cases involving questions of medical prac- 
 tice and skill, and cases involving genuineness of handwriting. 
 "Within the same principle, the question whether a vessel was 
 unseaw-orthy was held admissible because it involved the re- 
 sult of an examination which could not be fully communicated 
 to a jury.' It was also held competent to ask a pilot " whether 
 it would be safe for a tug-boat on Chesapeake Bay or any other 
 wide water to tug three boats abreast with a high wind;"* 
 to ask of an engineer familiar with the locality and structure 
 whether an embankment and bridges were skilfully con- 
 structed with reference to the creek ; ^ and evidence of like 
 character has been admitted on the question of negligence in 
 mooring a vessel,' on the necessity of jettison,'' and on ques- 
 tions involving nautical skill.' Opinions were held admissible 
 in the cases cited for the reason that the controlling issue in 
 the case involved questions of skill and experience which the 
 witness' practical knowledge enabled him to speak upon, and 
 because the facts which impressed the mind of the witness 
 could not be placed before the jury, and no better evidence 
 
 • Transportation Line v. Hope, 95 s Bellinger v. N. Y. C. R Co., 23 N. 
 U. a 391 ; Bellin ;er v. N. Y. C. R. Co., Y. 43. 
 
 23 N. Y. 43 ; Cornish v. Insurance Co., « Moore v. Westervelt, 9 Bosw. 
 
 74 id. 396. (N. Y.) 558 ; New Jersey Zinc & I. Co. 
 
 2 Ferguson v. Hubbell, 97 N. Y. 507 ; v. Lehigh Zinc & L Co., 59 N. J. L. 
 Schwander v. Birge, 46 Hun, 66, 10 189. 
 
 N. Y. State Rep. 803 ; 1 Greenl. Ev., ' Price v. Hartshorn, 44 N. Y. 94. 
 I 440. 8 Walsh v. Marine Ins. Co., 83 N, Y. 
 
 3 Baird v. Daly, 68 N. Y. 547. 427. 
 
 * Transportation Line v. Hope, 95 
 U. S. 297. 
 
OPINIONS AND CONCLUSIONS. 525 
 
 was available. The governing rule deduced from the cases 
 permitting the opinion of witnesses is that the subject must 
 be one of science or skill, or one of which observation and ex- 
 perience have given the opportunity and means of knowledge 
 which exists in reasons rather than descriptive facts, and 
 therefore cannot be intelligently communicated to others not 
 familiar with the subject so as to possess them with a full 
 understanding of it. That is to say, opinions are allowed 
 wiien the facts cannot be adequately placed before the jury 
 so as to impress their minds as they impress the mind of a 
 competent and skilled observer. "When the facts can be placed 
 before a jury, and they are of such a nature that juries gener- 
 ally are just as competent to form opinions in reference to 
 them and draw inferences from them as witnesses, there is no 
 occasion to resort to expert or opinion evidence. To require 
 the exclusion of such -evidence it is not necessary that the 
 jurors should be able to see the facts as they appear to eye- 
 witnesses, or to be as capable to draw conclusions from them 
 as some witnesses might be, but it is sufficient that the facts 
 can be presented in such a manner that jurors of ordinary intel- 
 ligence and experience in the affairs of life can appreciate them, 
 can base intelligent judgments upon them, and comprehend 
 them sufficiently for the ordinary administration of justice. 
 
 § 2. General rule. — The opinions of witnesses derived 
 from personal observation are admissible in evidence when, 
 from the nature of the subject under investigation, it cannot 
 be stated or described in such language as will enable persons 
 not eye-witnesses to form any accurate judgment in regard to 
 it, and no better evidence than such opinions can be obtained.^ 
 Sir J. Stephen, in his Digest of the Law of Evidence,^ states 
 the rule as follows : " The fact that any person is of opinion 
 that a fact in issue, or relevant or deemed to be relevant to 
 the issue, does or does not exist, is deemed to be irrelevant 
 to the existence of such fact.' When there is a question as to 
 
 1 Hardy v. Merrill, 66 N. H. 237, 2 Arts. 48, 49, 50, 54. 
 
 241 ; DeWitt v. Barley, 17 N. Y. 340 ; ' People v. Eastwood, 14 N. Y. 563 ; 
 
 Sydleman v. Beokwith, 43 Conn. 9 ; MoKee v. Nelson, 4 Cow. 355 ; Insur- 
 
 Com. V. Sturdevant, 117 Mass. 122: 1 ance Co. v. Eodel, 95 U. S. 233-339; 
 
 Whart Ev., §§508-513; 1 Eedf. Wills, Clary v. Clary, 2 Ired. 78 ; Hardy v. 
 
 g§ 136, 141. Merrill, 56 N. H. 237 ; Brooks v. Town- 
 
526 ETJLES OF EVIDENCE. 
 
 any point of science or art, the opinions upon that point of 
 persons specially skilled in any such matter are deemed to 
 be relevant facts.i Such persons are hereinafter called ex- 
 perts. The words 'science or art' include all subjects on 
 which a course of special study or experience is necessary to 
 the formation of an opinion,^ and amongst others the exami- 
 nation of handwriting.' When the question is as to a foreign 
 law (authenticated copies of the written law), the opinions 
 of experts who in their profession are acquainted with sadh 
 law are the only admissible evidence thereof, though sudh ex- 
 perts may produce to the court books which they declare 4o 
 be works of authority upon the foreign law in question, which 
 books the court, having received all necessary explanations 
 from the expert, may construe for itself.* It is the duty of 
 the judge to decide, subject to the opinion of the court above, 
 whether the skill of any person in the matter on which evi- 
 dence of his opinion is offered is sufficient to entitle him to be 
 considered as an expert.' The opinion of an expert as to the 
 existence of the facts on which his opinion is to be given is 
 irrelevant, unless he perceived them himself.^ Facts not other- 
 wise relevant are deemed to be relevant if they support or 
 are inconsistent with the opinions of experts, when such opin- 
 ions are deemed to be relevant.'' Whenever the opinion of 
 
 send, 7 Gill, 27 ; Wheeler v. Alderson, 510, 511 ; Church v. Hubbart, 2 
 
 3 Hagg. Eccl. R 574, 604, 605 ; Tatham Cranch, 187, 237 ; Enuis v. Rmfth, 14 
 
 V. Wright, 2 Euss. & Mylne, 1, 19; How. (U. S.) 400; 426; Charlotte v. 
 
 Wright V. Doe d. Tatham, 7 A. & E. Chouteau, 33 Mo. 194, 200; Barrow's 
 
 818; Waters v. Waters, 35 Md. 531, v. Downs, 9 R. I. 447; Brush v. Wil- 
 
 548; Higgins et al. v. Carlton & kins, 4 Johns. Ch. (N. Y.) 506, 520; 
 
 Scaggs, 28 Md. 115, 137. Jones v. Maffit, 5 S. & R 533, 531 ; 
 
 1 Milwaukee, etc. Ry. Co. v. Kellogg, People v. Calder, 30 Mich. 87. 
 
 94 U. a 469, 472; Page v. Parker, 40 sBriston v. Sequeville, 6 Ex. 275; 
 
 N. H. 47, 58 ; Pelamourges v. Clarke, Rowley v. L. & N. W. Ry., L. R 8 Ex. 
 
 9 Iowa, 1, 12. 331 ; In the Goods of Bonelli, L. R -1 
 
 21 S. L. C. 555 (7th ed., note to P. D. 69; Tucker v. Mass. Cent R R, 
 
 Carter v. Boehm); 28 Vict., ch. 18, 118 Mass. 547; Delaware & Chesa- 
 
 § 18. peake Steam Towboat Co. v. Starre, 
 
 sWithee v. Rowe, 45 Me. 571, 589; 69 Pa. St. 41. 
 
 Davis' Appeal, 38 Md. 15, 37. « 1 Ph. 507 ; T. E., § 1378 ; Walker 
 
 * Baron de Bode's Case, 8 Q. B. 350- v. Rogers, Ex'r, 24 Md. 239, 242; 
 
 267 ; Di Sora v. Phillips, 10 H. L. 624 ; Spear v. Richardson, 37 N. H. 33, 34 
 
 Castrique v. Imrie, L. R 4 E. & I. i City of Ripon v. Bittel, 30 Wis. 
 
 App. 434. See Picton's Case, 20 S. T. 614, 619. 
 
OPINIONS AND CONCLUSIONS. 527 
 
 any living person is deemed to be relevant, the grounds on 
 which such opinion is based are also deemed to be relevant." 
 
 § 3. Illustrations. — («) An expert witness might very well 
 be asked, in the presence of a given effect, of what causes it 
 either was or might be the resultant, if it assumes a hypoth- 
 esis the truth or falsity of which is left open to the jury. In 
 Wycklyn v. The City of Kochester ' it was held incompetent 
 to ask an expert witness " Was it possible for you to take in 
 those pipes any water out of Spring creek?" And the court 
 say: "If the question had called for a statement by the wit- 
 ness of any adequate cause within his knowledge for the dis- 
 appearance of the creek, it would have been admissible. The 
 jury would then have had before it a hypothesis or theory 
 the truth or falsity of which they could have considered in 
 connection with the open, visible facts of the case, and which 
 would have been left open for their determination." 
 
 (5) A life insurance agent who is an expert with mortuary 
 tables may testify to the expectation of life of a person killed,, 
 and that a person forty-six years of age would probably live 
 twenty4hree j'^ears.^ 
 
 ifi) An expert may give his opinion that if an engine had 
 been equipped with a properly constructed spark-arrester it 
 could not have emitted sparks of the size which were in fact 
 thrown out.' So experts may state, with the reasons therefor, 
 whether it would be possible for a certain embankment to 
 back water over a certain plantation situated four miles there- 
 from.* 
 
 {d) In Hunter v. Manhattan K. Co.,' in an action to restrain 
 an elevated railroad and for damages, the plaintiff was allowed 
 to ask an expert the following questions : " In your opinion 
 Was there anything in the condition of Beaver and Water streets 
 which should induce an upward rise in values greater than 
 would have existed in Pearl street had there been no elevated 
 railroad? Would the existence of such a structure and the 
 
 1 118 N. Y. 437, 29 N. Y. State Rep. 3 Frace v. New York, L. E. & W. R. 
 
 790. Co., 68 Hun, 325, 52 N. Y. State Rep. 
 
 2 International & G. N. R. Co. v. 102; State v. Asbell, 57 Kan. 898. 
 
 Kuehn, 3 Tex. Civ. App. SIC ; Galves- * St Louis, L M. & S. R. Co. v. Ly- 
 
 ton, H. & S. A. E. Co. v. Cooper, 85 man, 57 Ark. 16, 
 
 Tex. 431, S141N. Y. 281. 
 
528 EULES OF EVIDENCE. 
 
 running of trains as described affect the rental value of the 
 property in front of which it was constructed? Would it 
 affect it favorably or unfavorably, in your judgment?" In 
 that case the court say : " Evidence is admissible to show the 
 general effects caused by the maintenance and operation of 
 the elevated road upon abutting and neighboring properties. 
 It is inadmissible to show what is the particular damage 
 caused to the plaintiff's premises by the presence of the road, 
 or to show what they would be worth, or what their rental 
 value would be without the road. Questions of this latter 
 class have been held to be an invasion of the province of the 
 court or the jury ; and the rule excludes questions calling for 
 the judgment of the v/itness upon the question which is to be 
 submitted and decided. But questions of the former class 
 are permitted, for the reason that the general effects upon 
 other properties and the existence and nature of a general 
 injury being shown to the court or to the jury, they will be 
 better enabled to infer the amount of the damage suffered in 
 the particular case before them." Thus, while it seems that 
 opinions of experts as to what premises abutting on an ele- 
 vated railroad would have been worth if they Vi^ere unaffected 
 by the road and its operation are incompetent,' in such cases, 
 when expert evidence is offered where it is not competent, 
 the objection should be made that the question is " not within 
 the competency of the witness and is not within the compe- 
 tency of any witness," or that "the question is not within 
 the competency of this expert, or any expert," or that it is 
 hypothetical, speculative and incompetent. 
 
 (e) Expert testimony is admissible to show the laws of al- 
 luvial streams, the cause and manner of growth of deposits 
 of sediment, and their effect upon a stream the channel of 
 which has been obstructed.^ So an expert may state that in 
 warm weather the testicles of a stallion will hang lower than 
 in cold weather.' 
 
 (/") Mere opinions of witnesses are in general inadmissible.* 
 But opinion evidence, so far as it consists of a statement of an 
 
 1 Jeflferson v. New York El. R. Co., ' Dunham v. Rix, 86 Iowa, 300. 
 133 N. Y. 483, 44 N. Y. State Rep. < Taylor v. Baltimore &0. R. Co., 33 
 629. "VV. Va. 89 ; Taylor v. Penquite, 35 Mo. 
 
 2 Ohio & M. R. Co. V. Nuetzel, 143 App. 389. 
 111. 40. 
 
OPINIONS AND CONCLUSIONS. 529 
 
 effect produced upon the mind, becomes primary evidence, 
 and admissible, whenever a condition of things is such that it 
 cannot be produced and made palpable to the jury.' Evidence 
 of medical experts is admissible as to their judgment that an 
 injury was the cause of the condition of plaintiff, and that 
 certain consequences would follow as the result of the injury 
 as indicated by such condition.^ And expert evidence is com- 
 petent as to whether personal injuries from negh'gence could 
 be produced by a fall, and whether the}' are permanent ; ' or 
 what might have caused a wound, or whether the injuries 
 might have been caused by a fall.* And a qualified physician 
 may be asked his opinion on the basis of his examination of 
 the body of the deceased as to the cause of his death,' but not 
 as to facts which he neither knew nor pretended to know.^ 
 
 (j/) The driver of a team may testify as to what frightened 
 them.' 
 
 (A) When a ^tness has been in a position to know the 
 facts, but his memory has grown dim, what he thinks he 
 recollects is, if relevant, admissible.' 
 
 (*) The statement by a witness of a fact ascertained by him 
 through the sense of hearing is not the statement of a mere 
 matter of opinion, but of a conclusion reached from an opera- 
 tion of such physical sense.' 
 
 {j) A non-expert witness may give his opinion upon the 
 question as to the cause of the overflow of a river, where he 
 has apparently fully stated all the facts upon which his opin- 
 ion is founded."* 
 
 [Tc) Witnesses may testify that they could have heard the 
 bell or whistle if rung or sounded by a train." So a witness 
 may testify from mortality tables as to how many j^ears de- 
 
 J Graham v. State, 28 Tex. App. 582 ; 6 Patterson v. South & N. A. R. Co., 
 
 Garner v. State, 28 id. 561; Hurley v. 89 Ala. 318. 
 
 New York & B. Brew. Co., 13 App. • Geveke v. Grand Kapids & I. R. 
 
 Div. 167. Co., 57 Mich. 589. 
 
 ^MoCIain v. Brooklyn City R R. » Harris v. Nations, 79 Tex. 409. 
 
 Co., 116 N. Y. 459. » Ogden v. People, 134 111. 599. 
 
 8 Montgomery v. Long Island R l" Gulf, Colorado & Santa Fe R. Co. 
 
 Co., 55 Hun, 611, 29 N. Y. Stftte Rep. v. Looker, 78 Tex. 279. 
 
 822. 11 Chicago & A. R Co. v. Dillon, 24 
 
 *SmalIey v.Appleton, 75 Wia 18. 111. App. 203, 123 III. 570; Illinois 
 
 'People V. Hare, 57 Mich. 505. Cent R Co. v. Slater, 139 111. 190. 
 34 
 
530 RULES OF EVIDENCE. 
 
 ceased would proliably have lived ; ' or as to the liability of a 
 railroad track to get oat of line during a rain.^ 
 
 (l) An opinion can be given by a non-expert concerning 
 matters with which he is specially acquainted, but which can- 
 not be described;' but impressions of witnesses cannot be 
 received and treated as evidence.* 
 
 (m) The governing rule is that the subject must be one of 
 science or skill, or one of which observation and experience 
 have given opportunity and means of knowledge which exists 
 in reasons rather than descriptive facts, and therefore cannot 
 be intelligently communicated by others not familiar with the 
 subject so as to possess thfem with a full, understanding of it.' 
 And inferences and facts are to be drawn and found by the 
 jury, and cannot be proved as facts \by the opinions of wit- 
 nesses.* And when the inquiry is about a matter that may be 
 understood by one man of sense as well as another, and where 
 no special course of study or training is required to under- 
 stand it, opinions of experts are rejected.^ 
 
 (n) The purpose of expert evidence is to aid the jury in 
 their deliberation on the case, and in their review of the evi- 
 dence, and to be competent for that purpose it must, where 
 the questions involved are not open ones of science or art, be 
 based upon evidence in the case, and confined to the causes 
 of the injury complained of.' 
 
 § 4. When allowable. — (1) An expert witness may state 
 whether the string-pieces of a bridge were sound and suitable 
 for the bridge ; ' and as to the depreciation of the rental of 
 real property in an action against a railroad company for 
 
 1 San Antonio & A. P. R. Co. v. Ben- 59 id. 618 ; McLean v. Scliuyler Steam 
 nett, 76 Tex. 151. . Towboat Line, 52 Hun, 43, 117 N. Y. 
 
 2 Fort Worth & D. C. R Co. v. Thorn- 644, 22 N. Y. State Eep. 213. 
 
 son, 75 Tex. 501. 'Shelly v. Austin, 74 Tex. 608; 
 
 3 East Tennessee, V. & G. R Co. v. Mann v. State, 23 Fla. 610 ; Marshall 
 Watson, 90 Ala. 41. v. Single, 36 Mo. App. 122 ; Bailey v. 
 
 * N. O. Nelson Mfg. Co. v. Mitchell, Rome, Watertown & Ogdensbarg R 
 
 38 Mo. App. 321. Co., 139 N. Y. 802, 54 N. Y. State Eep. 
 
 ' Schwansen v. Birge. 46 Hun, 66. 550. 
 
 6 People V. Barber, 115 N. Y. 475, » Van Wycklen v. Brooklyn, 118 N. 
 
 26 N. Y. State Rep. 184 ; Parrott v. Y. 424, 41 Alb. L. J. 178, 29 N. Y. State 
 
 Swain, 29 111. App. 266 ; Ireland v. Rep. 790. 
 
 Cincinnati, W. & M. R. Co., 79 Mich. » Amadon v. Ingersoll, 34 Hun, 132. 
 163 ; Limon v. Chicago & G. T. Co., 
 
OPINIONS AND C0NCLD8I0NS. 531 
 
 damages for obstruction to light and air;' and as to the dif- 
 ference in value of the use of a farm with and without a cross- 
 ing, in an action to recover damages for being deprived of the 
 use of a farm crossing while defendant was building a bridge.^ 
 
 (2) It is proper to ask an expert whether in his judgment 
 an accident on a railroad was caused by a failure of the lever 
 of the engine to work to shut off the steam ; ^ or the question 
 to an expert engineer as to what adequate causes there were 
 for the scouring of water upon a river bank;* and as to the 
 prospective profits, where the contract depends upon uncer- 
 tain future events and there is no other way of proving the 
 damage sustained.' 
 
 (3) The understanding of a witness is admissible.' 
 
 (4) A lay witness who is examined as to facts within his own 
 knowledge and observation tending to show the soundness or 
 unsoundness of a person's mind may characterize as rational 
 or irrational the acts and declarations to which he testifies.' 
 
 (5) An expert, in answer to a hypothetical question as to 
 bow an injury occurred to a barge which ran upon a rock 
 while in tow of defendant's steamer, may state whether it 
 was before or after the breaking of a line.' And a physician 
 may state what must be, in the ordinary course of nature, 
 the effect of injuries described upon the health of a person.' 
 
 (6) A lay witness may give his opinion, based upon personal 
 knowledge, of the facts of the position of a person's elbow 
 upon the window-sill of a car-window, that it could not have 
 been outside of the car, or, " I should judge that it could not 
 have projected out of the window by the position that he held 
 it in the car." '" 
 
 1 Glover v. Manhattan Ry. Co., 51 « Mather v. Parsons, 33 Hun, 338 ; 
 N. Y. Supr. Ct. 1. Gulerette v. McKinley, 37 id. 333; 
 
 2 Vandenbergh v. Boston & Albany Nicholay v. Unger, 80 N. Y. 54. 
 
 R. Co. (N. Y.), 21 N. Y. Weekly Dig. ' Holcomb v. Holcomb, 95 N. Y. 316 ; 
 
 474 ; Green v. State, 97 Tenn. 50 ; Rider v. Miller, 86 id. 507 ; Matter of 
 
 American Oak Extract Co. v. Ryan, Ross, 87 id. 514. 
 
 112 Ala. 337. » Salisbury v. Schuyler Steam T. R 
 
 » Murphy v. New York, Lake Erie Line, 33 N. Y. Weekly Dig. 185 ; Fla- 
 
 & Western R. Co., 19 N. Y. Weekly herty v. Powers, 167 Mass. 61. 
 
 Dig. 414, 98 N. Y. 635. ' Jones v. Utica & Black River R. 
 
 *Moyer v. New York Central & Co,, 40 Hun, 349. 
 
 Hudson River R. Co., 98 N. Y. 645. " Hallaban v. New York, Lake Erie 
 
 5 Taylor v. Bradley, 39 N. Y. 144; & Western R. Co., 103 N. Y. 194 
 Reed v. McConnell, 101 N. Y. 370, 1 
 N. Y, State Rep. 33. 
 
532 EULES or evidence. 
 
 (7) It is proper to give opinions of witnesses as to the value 
 of an agreement, the profits which it or an agency established 
 in pursuit of it could produce, the damages realized from a 
 breach of such contract by one of the parties thereto, and the 
 amount of business which could have been done under such 
 an agreement, on the question of damages.' 
 
 (8) In an action for personal injuries the plaintiff may show 
 by expert testimony what his future condition may be.^ Ex- 
 pert testimony is also admissible upon the question whether 
 the sinking of a series of wells in the vicinity of a spring 
 diverts its water.^ 
 
 (9) In an action for personal injuries in being run over by 
 a street-car, it is competent to ask a person who was standing 
 on the platform of the car at the time of the injury as to 
 whether, at the distance at which the injured person was 
 standing at the time he was first warned of the approach of 
 the car, the car would have passed without injuring him.* 
 
 (10) In an action for trespass to real property by defend- 
 ant's cattle, a witness, after giving with minuteness the items 
 of injury, may state the amount of damage done.^ And a 
 witness, after stating the injury and being asked as to its ex- 
 tent, replied, " If it was on my own land I should hate to have 
 it done for a couple of hundred dollars." This was held to be 
 substantially responsive, and that the reference to the witness' 
 own land was a mere mannerism which did not render it in- 
 competent.' 
 
 (11) The safety of a highway is a proper subject of opinion 
 evidence.' 
 
 (12) In a prosecution for abduction a physician may ex- 
 press an opinion that the genital organs have been penetrated 
 by force within a week.* A physician may also state as to 
 whether the plaintiff was feigning suffering, when the ques- 
 tion went to the fact as to what the witness saw or dis- 
 
 ' Wakeman v. Wheeler & Wilson * Argotsinger v. Vines, 83 N. Y. 
 
 Mfg. Co., 101 N. Y. 205. 308 ; Rogers v. Anson, 42 Hun, 436. 
 
 2Tozer v. New York Central & «Id. 
 Hudson River R. Co., 38 Hun, 100. ' Baltimore and Liberty Turnpike 
 
 3 Van Wycklen V. City of Brooklyn, Co. v. Cassell, 61 Md. 419; 59 Am. 
 
 41 Hun, 418, ^ Rep. 175. 
 
 * McDermott v. Third Avenue R 8 People v. Stott, 5 N. Y. Crim. 
 
 Co., 44 Hun, 107. Rep. 61. 
 
OPINIONS AND CONCLUSIONS. 533 
 
 covered.' A witness may state the number of horse-power 
 obtainable from a specified quantity of water.^ 
 
 (13) On the question whether work on a building was well 
 done, an expert who performed part of the work may state 
 whether or not the work was " a good job," and if it was 
 '' well done." ' In an action by an employee of a railroad com- 
 pany to recover for injuries sustained by the falling of a 
 bridge, an expert who has examined the debris of the bridge 
 after the accident may state his opinion as to the cause which 
 produced the falling of the bridge.'' 
 
 (14) In an action for damages caused by the defendant set- 
 ting a fire-on his lands, the opinion of persons of experience, 
 as to whether the fire was set at a proper time, were held to 
 be competent in Ferguson v. Hubbell.' One familiar with 
 a stock of goods and the sales therefrom may give his opin- 
 ion as to the question of value.^ 
 
 (15) A statement by a witness that, " to the best of my 
 judgment," a certain condition of things was a fact, "but I 
 won't be positive," is but a statement of his best recollection, 
 and is properly received.' 
 
 (16) Expert witnesses may give their opinion as to whether 
 another witness' testimony shows him possessed of suflBcient 
 science and skill to enable him to testify as an expert.' 
 
 (IT) One experienced in shipping cattle may give an opin- 
 ion, in answer to a hypothetical question, as to the effect of 
 the wreck of a cattle train, and delay in consequence, upon 
 shrinkage of the cattle in weight and the extent thereof.' 
 
 (18) A witness may give his opinion of the value of the 
 plaintiff's services as described." But it seems a hypothetical 
 question should be put and an opinion given thereon." 
 
 I Tisdale v. Delaware & Hudson C. 7 Alabama G. S. E. Co. v. Hill, 93 
 
 E. Co., 116 N. Y. 416, 4 N. Y. State Ala. 514. 
 
 Rep. 812. 8 Buehler v. Reich, 44 N. Y. State 
 
 ' Garwood v. New York Central & Rep. 498 ; Howland v. Oakland Con. 
 
 Hudson River R Co., 45 Hun, 128. St. R. Co., 115 Cal. 487. But see Bowen 
 
 ^ Ward V. Kilpatrick, 85 N. Y. 413, v. Huntington, 35 W. Va. 682. 
 
 39 Am. Rep. 674. 9 Ft. Worth & D. C. R Co. v. Great- 
 
 * Vosburg V. Lake Shore & M. S. R house, 82 Tex. 104 
 
 Co., 14 N. Y. Weekly Dig. 514, 94 N. w McCuUom v. Seward, 52 N. Y. 316. 
 
 Y. 374 ; People v. Barney, 114 Cal. 554. " Reynolds v. Robinson, 64 N. Y. 
 
 5 26 Hun, 250. 589. 
 
 ^ Rober v. Bowe, 30 Hun, 379. 
 
534 EUI.ES OF EVIDENCE. 
 
 (19) The opinions of persons experienced in dealings in 
 stock is admissible to show the value of stocks that are not 
 dealt in, but held as investments.* 
 
 (20) That a spot or stain is blood may be proved by any 
 person who has observed it and is able from observation to 
 state the fact.'' But it is different, it seems, where the ques- 
 tion is as to whether the spot is human blood or that of an 
 animal.' 
 
 (21) A physician may testify that the grasp of a person fall- 
 ing from a street-car upon the railing might come from spas- 
 modic contraction of the muscles not fully under the control 
 of the will.^ 
 
 (22) A witness having the means of knowledge may testify 
 whether in her opinion the plaintiff was sincerely attached to 
 defendant,^ and as to the degree of affection entertained by a 
 wife for her husband.' 
 
 § 5. Opinions not allowable when. — {a) It is not sufficient 
 to warrant the introduction of expert evidence that the witness 
 may know more on the subject on inquiry, and may better 
 comprehend and appreciate it, than the jury; but to warrant 
 its introduction the subject of the inquiry must be one relat- 
 ing to some trade, profession, science or art in which persons 
 instructed therein, by study or experience, may be supposed 
 to have more skill and knowledge than jurors of average in- 
 telligence may be presumed generally to have.' 
 
 (b) Negative conclusions are not admissible without the 
 evidence from which the conclusions are to be drawn;' and 
 opinions of witnesses, expert or other, are not admissible 
 when the circumstances can be fully and adequately described 
 to the jury, and are such that their bearing on the issue can 
 
 1 Sistare vi Olcott, 15 N. Y. State ' Higgins v. Dewey, 107 Mass. 494 ; 
 Rep. 248. Luce v. Dorchester Mut F. Ins. Co., 
 
 2 People V. Gonzales, 35 N. Y. 61; 105 id. 297; Ferguson v. Hubbell, 97 
 Greenfield v. People, 85 id. 82; Peo- N. Y. 507; Hays v. Miller, 70 id. 112, 
 pie V. Deacon, 109 id. 374. 6 Hun, 320 ; Frazer v. Tupper, 29 Vt 
 
 'Id. 409; Bills v. City of Ottumwa, 35 
 
 * Ganiard v. Rochester City & B. R. Iowa, 109 ; Concord R Ca v. Greely, 
 
 Co., 50 Hun, 22, 121 N. Y. 661, 18 N. 23 N. H. 237. 
 Y. State Rep. 692. 8 Manning v. Dem (Cal.), 24 Pac. 
 
 « McKee v. Nelson, 4 Cow. 355. Rep. 1092 ; Springfield v. Coe, 166 111. 
 
 «Trelowney v. Coleman,' 2 Stark. 22; Auberle v. McKeesport, 179 Pa. 
 
 191. St 321. 
 
I 
 OPINIONS AND CONCLUSIONS. 535 
 
 be estimated by all men without special knowledge or train- 
 ing;' and a witness will not be permitted to state an infer- 
 ence or conclusion from a state of facts, which it is the prov- 
 ince of the jury to draw for themselves.- Thus, a witness 
 cannot state what is a proper time to burn fallow.' 
 
 (c) A physician who has set plaintiff's arm cannot be asked 
 as to how he would say the fracture was caused, it being a 
 mere conjecture.* And in an action on a marine policy of 
 insurance, the question whether in the judgment of the wit- 
 ness the vessel and cargo could have been saved by certain 
 acts is inadmissible, the question at issue being whether there 
 was ordinary care and skill in navigating.^ The termination 
 of splints which have been used upon a broken limb cannot 
 be shown by expert testimony.* 
 
 {d) 'No amount of science, study or skill will enable a per- 
 son, by mere inspection, to judge or testify of the age of 
 handwriting with that accuracy necessary to its value or 
 safety.' 
 
 • (e) In an action to recover damages for the breach of a 
 contract to form and continue a partnership for a specified 
 term, the opinion of a witness as to the value of the contract 
 to plaintiff, or as to what would have been his share of the 
 profits had the contract been carried out, is incompetent.* 
 
 (/) To render an opinion of a witness competent as to the 
 value of a dog it must be shown that the dog in question is a 
 marketable animal, that it belonged to some particular breed 
 or possessed som^ peculiar qualities which made him an ani- 
 mal usually vendible, had some approximate regular price, 
 and that there was a market value for that kind of dogs.' 
 
 1 Graham v. Pennsylvania Co., 139 ' Boice t. Thamis & M. & M. Ins. 
 Pa. St 149. Co., 38 Hun, 246. 
 
 2 Schneider v. Second Ave. R Co., SBoldt v. Murray, 2 N. Y. State 
 ]33 N. Y. 583, 44 N. Y. State Rep." Rep. 232; Strohm v. New York, L. E. 
 680 ; National Gas Light & F. Co. v. & W. R. Co., 96 N. Y. 305. 
 Miethke, 35 111. App. 629 ; Reeves v. ' Cheney v. Dunlap, 37 Neb. 401. 
 State, 93 Ala. 103. s Reed v. McConnell, 101 N. Y. 270. 
 
 s Ferguson v. Hubbell, 97 N. Y. 507 ; » Dawson v. Wells, 33 N. Y. Weekly 
 
 Kennally v. Selleck, 31 N. Y. Weekly Dig. 81 ; St Louis, L M. & S. R. Co. v. 
 
 Dig. 72. Edwards, 49 U. S. App. 52, 78 Fed. 
 
 * Francis v. New York Steam Co., Eep. 745. 
 114 N. Y. 380, 1 N. Y. State Rep. 261. 
 
536 KtJLES OF EVIDENCE. 
 
 (c/) The opinions of witnesses as to the object of transac- 
 tions with third persons are inadmissible.' 
 
 (A) In a criminal prosecution for libel, where the name of 
 the person alleged to have been libeled was not mentioned in 
 the article upon which the prosecution was based, witnesses 
 cannot state whether, when they read the article, they recog- 
 nized its application to any particular individual.'^ 
 
 (*) An opinion that a result may follow an injury, or that 
 it is likely to accrue, is not to be received. There must be 
 such a degree of probability as amounts to a reasonable cer- 
 tainty that the result will flow from the injury.' 
 
 (ji) Evidence of a lawyer of another state as to what, in the 
 opinion of lawyers there, should be the construction of a stat- 
 ute of that state, is not admissible, where there is no decision 
 by the courts of the state upon the point in controversy.* 
 
 (Jc) A witness cannot state whether the egress to a building 
 was safe;' or whether property carried upon the deck of a 
 canal-boat is properly covered so as to protect it from rain,' 
 A witness cannot give an opinion on the ver}' question to be 
 determined by the jury. In an action for assault and bat- 
 tery, the plaintiff, if not an expert, is incompetent to testify 
 that a blow upon her ear made her entirely deaf.' 
 
 (Z) la an action upon an insurance policy covering a build- 
 ing and machinery therein, an estimate of the cost of the iha- 
 chinery, made by an expert from description given by plaintiff, 
 is incompetent, in the absence of evidence proving that such 
 articles as are included in the estimate were in the building at 
 the time of the fire.' 
 
 (m) A witness cannot testify to a mere matter of opinion, 
 excluding the facts upon which his opinion is based — thatis,to 
 an abstract question.' Thus, a witness cannot state the pecun- 
 iary amount of damage which property has sustained by rea- 
 
 1 People V. Sharp, 107 N. Y. 437. ' Stevens v. Rogers, 85 Hun, 54. 
 
 2 People V. Barr, 42 Hun, 313. 8 Machin v. Lamar F. Ins. Co., 90 
 8 MoClain v. Brooklyn City R Co., N. Y. 089. 
 
 116 N. Y. 459, N. Y. State Rep. 49. 9 Hardenburgh v. Cockroft, 5 Daly 
 
 * Hennesey V. Farrelly, 13 Daly, 468. (N. Y), 79; Whitmore v. Biscotf, 5 
 
 5 Schwander v. Birge, 46 Hun, 66, Hun, 136 ; Richardson v. Northrop, 
 10 N. Y. State Rep. 803. 66 Barb. 85 ; Thompson v. Dickhart, 
 
 6 Schwinger v. Raymond, 105 N. Y. id. 604. 
 648. 
 
OPINIONS AND OONOLtrSIONS. 537 
 
 son of a nuisance, or the deterioration in value of cattle from 
 certain causes described by other witnesses.' 
 
 (n) Evidence of the market value, or reasonable value, of a 
 loan of credit is incompetent.- So is an opinion as to the 
 pecuniary responsibility of another.' 
 
 (0) On the issue of mental capacity, a non-expert witness 
 is not competent to testify to the impressions made on his 
 mind by the acts and conversations of the.person in question.* 
 
 {p) Suspicions are not proper evidence for any purpose.' 
 Expert evidence is not a,dmissible to prove that fire would 
 not destroy the mats of grass, when the effect of the fire on 
 the roots of the grass sued for was susceptible of direct 
 proof ;^ and what is the proximate cause of an injury is ordi- 
 narily a question for the jury, and not a question of science 
 or legal knowledge.' Thus, witnesses are not qualified to give 
 their opinion that an overflow of a river was caused by a rail- 
 road embankment.' 
 
 II. FOEM OF QUESTIONS AND ANSWERS. 
 
 (1) Questions put to an expert on direct examination must 
 be framed hvpothetically, unless there is no conflict of evi- 
 dence as to the facts, or the witness is personally acquainted 
 with them; " and a hypothetical question must be based upon 
 facts which there is evidence to prove,'" and upon facts ad- 
 mitted, or upon facts which the jury are to pass upon, on 
 conflicting evidence;" and must be based on a specific ques- 
 tion covering all the facts or the assumed facts as to which 
 the opinion is required, and not upon the testimony which he 
 has heard.'^ But it is not necessary that a hypothetical ease 
 should be an exact reproduction or accurate presentation of 
 
 iSchermerhorn v. Tyler, 11 Hun, 549. 7 Ford v. Illinois R Co., 40 111. App. 
 
 2Clancey v. Losey, 65 Hun, 635, 48 322. 
 
 N. Y. State Rep, 191. 8 Gulf, C. & S. F. R Co. v. Hepner, 
 
 ' Denman v. Campbell, 7 Hun, 88. 83 Tex. 136. 
 
 < Yeandle v. Yeandle, 13 N. Y. State 9 State v. Maier, 36 W. Va. 757. 
 
 Rep. 586; People v. McCarthy, 115 WRnss v. Wabash Western R Co., 
 
 Cal. 255. 112 Mo. 45. 
 
 5 Barney v. Fuller, 133 N. Y. 605, 44 " People v. Harris, 136 N. Y. 423, 49 
 N. Y. State Rep. 903. N. Y. State Rep. 751. 
 
 6 Gates V. Chicago & A. R Co., 44 12 Re Snelling's Will, 136 N. Y. 315, 
 Mo. App, 488. 49 N. Y. State Rep. 695 ; Fisher v. 
 
538 ETJLKS OF EVIDENCE. 
 
 the evidence adduced.' The answer by an expert witness to a 
 hypothetical question should be stricken out when he states 
 that it is partly made from his own knowledge of the facts of 
 the case.^ So an expert cannot be asked a question which 
 requires him to pass upon or draw inferences from the evi- 
 dence given in the case by another witness.' 
 
 (2) Purely imaginary or abstract questions, assuming facts 
 or theories for which there is no foundation in the evidence, 
 are not admissible as matter of right. On cross-examination, 
 such abstract or theoretical questions, not' founded upon the 
 facts of the case on trial, may be put, for the purpose of test- 
 ing the knowledge and information of the witness as to the 
 subject upon which he has been examined, and his competency 
 to give the opinion which he may have pronounced on his di- 
 rect examination. But the allowance of such questions, like 
 other collateral inquiries touching only the credibility of the 
 witness, rests in the discretion of the court; and, when the 
 discretion is fairlj'^- exercised, it is not error to exclude them.* 
 
 (3) The form of questions to be asked of experts is within 
 the discretion of the presiding judge.' A hypothetical ques- 
 tion must state the facts assumed to be proved, upon which 
 the opinion of the witness is called for.* 
 
 (4) Counsel in framing hypothetical questions to be put to 
 expert witnesses are not confined to facts admitted or abso- 
 lutely proved, but facts may be assumed, where there is evi- 
 dence on either side tending to establish them, and which 
 are pertinent to the theories they are attempting to uphold; 
 and upon cross-examination counsel maj' assume any facts 
 pertinent to the inquiry, whether testified to by witnesses or 
 not, with a view of testing the skill and accuracy of the ex- 
 pert.' 
 
 (5) It is not the province of an expert to draw inferences 
 from the evidence of other witnesses, or to take in such facts 
 as he can recollect, and thus form an opinion. He should have 
 full information as to the ascertained or supposed state of 
 
 Monroe, 51 N. Y. State Rep. 585 ; * Eoraback t. Pennsylvania Co., 58 
 
 Briggs V. Minneapolis St R Co., 52 Conn. 293. 
 
 Minn. 36. 6 Sebrell v. Barrows, 36 W. Va. 212 ; 
 
 1 Baker v. State, 30 Fla. 41. Butts v. Village of Lowville, 15 N. Y. 
 
 2 Fuller V. Jackson, 92 Mich. 19T. Weekly Dig. 144 ; Loudoun v. Eighth 
 
 3 Link V. Sheldon, 136 N. Y. 1, 48 Ave. R. Co., 16 App. Div. 152. 
 
 N. Y. State Rep. 830. 'Dileber v. Home Life Ins. Co., 87 
 
 < People V. Augsbury, 97 N. Y. 50). N. Y. 75; Cliatsworth v. Rowe, 166 
 
 111. 114. 
 
OPINIONS AND CONCLUSIONS. 639 
 
 facts upon which his opinion is based ; he cannot be called 
 upon to determine the truth of facts sworn to before giving 
 such opinion; nor can he be called upon to testify unless a 
 clear state of facts appears. And the opinion of a witness, 
 based upon facts hypothetically stated to hira, is not admis- 
 sible, unless the hypothetical question embodies substantially 
 all the facts relating to the subject upon which his opinion is 
 based.* But in Bowen v. Huntington ^ and Ft. Worth & D. 
 C. E. Co. V. Greathouse,' the court held that the failure of an 
 accurate statement of all the facts in propounding a hypo- 
 thetical question to a witness would not render it inadmissible 
 if sufficient was given upon which he could formulate an in- 
 telligent opinion. "When the facts are controverted or not 
 entirely clear, a hypothetical question may be put based upon 
 the facts claimed to have been proven by the evidence.* 
 
 (6) A party may be asked whether he took possession of 
 certain property.* 
 
 (7) Upon trial of one indicted for murder wherein insanity 
 is set up as a defense, a lay witness for defendant who has 
 given the details of an interview with him on the same even- 
 ing a short time prior to the homicide may be asked " were 
 his acts at eight o'clock that night rational or irrational." * 
 
 (8) A question, " If M. had been in her room at the time 
 of the shooting would not you have seen her there? " is proper, 
 as calling for a fact and not a conclusion.' 
 
 (9) A lay witness cannot state that from what he had ob- 
 served in the acts and conversation of a person he thought 
 that his mind was gone and that he was an imbecile.^ But 
 such witness, after testifying to facts and incidents tending 
 to show unsoundness of mind, may testify as to the impres- 
 sion produced upon his mind thereby as to whether such acts 
 were rational or irrational.* 
 
 (10) "Where the opinion is the mere short-hand rendering 
 
 1 Senn v. Southern E. Co., 108 Mo. 190; O'Brien v. People, 36 id. 882: Hew- 
 
 142; Truesdale Mfg. Co. v. Hoyle, 39 Jett v. Wood, 55 id. 634; Halcomb v. 
 
 III. App. 532. Haloomb, 95 id. 316. 
 
 335 W. Va. 682. 'People v. Chacon, 3 N. Y. Crim. 
 
 8 83 Tex. 104. Rep. 418, 102 N. Y. 669. 1 
 
 < Bowen v. Huntington, 35 W. Va. ^ Haloomb v. Halcomb, 95 N. Y. 316. 
 
 682. 9 Hewlett v. Wood, 55 N. H. 634 ; 
 
 5 Keller V. Paine, 34 Hun, 167. Spence v. Brown, 17 N. Y. Weekly 
 
 « People V. Conray, 97 N. Y. 62, 33 Dig. 518 ; Boettger v. Scherpe & K. 
 
 Hun, 119 ; Clapp v. Fullerton, 34 N. Y. A. I. Co., 136 Mo. 531. 
 
5iO ETJLES OF EVIDENCE. 
 
 of the facts, then -the opinion can be given subject to cross- 
 examination as to the facts on which it is based.' A witness 
 may state that the barrel of a pistol was cold and there was 
 no indication that it had been fired.^ 
 
 (11) Upon the trial of an action for personal injuries it is 
 proper to ask an expert as to the usual effect of a certain 
 internal injury, falling ©f the womb, and whether it usually 
 permanently affects the health and strength of the patient,^ 
 and as to the probable result of the injuries; ■• and in such case 
 it is not error to permit the medical experts to state what, in 
 their judgment, will be the probable result of the particular 
 injury in question;' and the probabilities as to plaintiff's re- 
 covery derived from the history of similar cases, and as to the 
 natural and ordinary course of plaintiff's disease.^ 
 
 (12) Where personal property has been described by wit- 
 nesses, a dealer in such articles, but who has never seen the 
 property in question, may be asked a hypothetical question as 
 to the value of the property, the same being described in the 
 question as testified to by the other witnesses.' 
 
 (13) A medical man conversant with the disease of insanity 
 may be asked the general question, and give his opinion, as to 
 the sanity or insanity of the person whose sanity is in ques- 
 tion;' while a layman, except an attesting witness, cannot tes- 
 tify to an opinion on the general question, but only impressions 
 produced by what he witnessed.' Thus, a layman may state 
 
 U Whart Ev., § 510; Wynne v. 143; Paty v. Martin, 15 La. Ann. 630; 
 
 State, 56 Ga. 113; Commonwealth v. Com. v. Piper, 120 Mass. 185; Slielton 
 
 Sturtivant, 117 Mass. 123. v. State, 34 Tex. 662 ; State v. Morphy, 
 
 2 People V. Driscoll, 117 N. Y. 414, 33 Iowa, 370; Wallace v. Vacuum Oil 
 
 9 N. Y. State Rep. 820. Co., 128 N. Y. 579 ; Griswold v. N. Y. 
 
 'Harrold v. New York Central & C. & H. R. R. Co., 115 N. Y. 61; State 
 
 Hudson River R. Co., 13 Daly, 378; v. Slieets, 89 N. C. 543; AUis v. Day, 
 
 Strohm v. New York, L. E. & W. R. 14 Minn. 516 ; Ottawa University v. 
 
 Co., 95 N. Y. 305. Parkiiison, 14 Kan. 159 ; Mowry v. 
 
 * Griswold v. New York Central & Chase, 100 Mass. 79; Stanton v. Em- 
 Hudson River R. Co., 44 Hun, 336. brey, 93 U. S. 548. 
 
 5 Filer v. New York Central & Hud- ' Whyton v. Snyder, 88 N. Y. 299. 
 
 son River R. Co., 49 N. Y. 42. e Brown v. Murdock, 13 Abb. N. C. 
 
 «Alberti v. New York, L. E. & W. (N. Y.) 360; Cotrell v. Com., 13 Ky. L. 
 
 R. Co., 43 Hun, 431 ; Lush v. Me- Rep. 305 ; Foster v. Dickerson, 64 Vt. 
 
 Daniel, 13 Ired. (N. C.) L. 485; Hook 333. 
 
 V. Stovall, 26 Ga. 704; Roberts v. 9 Bell v. McMarter, 29 Hun, 273; 
 
 Fleming, 31 Ala. 683 ; Jones v. White, White v. Davis, 62 id. '623, 42 N. Y. 
 
 11 Humph. 368: State v. Smith, 33 State Rep. 901 : Hay v. Miller, 48 Neb. 
 
 Me. 369; Lindsay v. People, 63 N. Y. 153; Hoover v. State, id. 184. 
 
OPINIONS AND CONCLUSIONS. 541 
 
 the acts and conversations of a grantor alleged to be mentally 
 incapable of making a valid deed, of which he has personal 
 knowledge, and then say whether in his judgment such acts 
 and conversations are those of a rational or irrational man ; 
 but he cannot testify whether in his opinion, based upon speci- 
 fied acts and conversations and his personal observation, not 
 given in evidence, the grantor was rational or irrational.' 
 
 (14) A general objection to a question calling for an opin- 
 ion as to the existence of a material fact is not good. The 
 objection should particularly state the ground therefor.^ 
 
 (15) In an action for personal injuries it is proper to ask 
 physicians " whether in their opinion the physical condition 
 in which they found the plaintiff to be upon their examina- 
 tion of her could have resulted from a fall," ' and whether a 
 laceration found upon the lip of a deceased person could or 
 could not have been made in the absence of any outside me- 
 chanical force ; * or whether pregnancy would result from the 
 first intercourse in a case where the woman had been ravished.' 
 And in an action to recover upon a delivery of iron, where the 
 defense was a breach of warranty of quality, it is proper to 
 ask an expert, "What do you expect to find in Coltness iron 
 particularly?"' 
 
 (16) Upon the issue of the testamentary capacity of a de- 
 cedent it is proper to permit hypothetical questions reason- 
 ably descriptive of decedent's condition and disease as shown 
 by other testimony, with an inquiry as to their opinions of 
 the resulting mental condition of the patient, and his ca- 
 pacity to concentrate his thoughts on matters of business, to 
 resist importunity, and generally to overcome influence.' In 
 connection with their opinion, they can state the reasons upon 
 which it is founded.' But inferences from the facts are to be 
 drawn and found by the jury, and cannot be proved as facts 
 by the opinions of witnesses.' 
 
 1 Paine v. Aldrich, 133 N. Y. 544, 44 State Rep. 907 ; FelsUa v. N. Y. C. & 
 N. Y. State Rep. 308. H. R R. Co., 153 N. Y. 339. 
 
 2 Re Crosby v. Day, 81 N. Y. 242. ■? Fiero v. Paulding, 6 N. Y. Supp. 
 8 Turner v. City of Newburgh, 109 1 32, 25 N. Y. State Rep. 156 ; Davis v. 
 
 N. y. 301. United States, 165 U. S. 373. 
 
 * People V. Wilson, 109 N. Y. 345. ^ Lewiston, etc. Co. v. Androscog- 
 
 ' Young V. Johnson, 46 Hun, 164. gin Water Power Co., 78 Me. 274. 
 'Abenheim v, Samuel, 16 N. Y. 9 People v. Barber, 115 N. Y. 475,36 
 
 N. Y. State Rep. 194. 
 
542 RULES OF EVIDENCE. 
 
 (17) A layman can state that a person was drunk at a cer- 
 tain time.' 
 
 (18) The question, "Does the testimony you have heard on 
 that subject satisfy your mind?" etc., is not admissible, be- 
 cause it calls upon the witness to weigh the evidence he has 
 heard.' So a witness cannot be asked, "What have you to 
 say on the testimony 3'-ou have heard on that subject." ' 
 
 (19) A hypothesis submitted for the opinion of an expert 
 witness must be based upon the proofs, and must not go out- 
 side of the facts as to which some evidence has been given;* 
 and such facts, or some of them, must be embodied in the 
 question.' It is improper to single out facts supposed to be 
 material and discard other evidence;* nor can the questions 
 be based partly on assumed facts which have been proved, 
 partly upon assumed facts as to which there is no proof, and 
 party upon portions of the testimony of other witnesses which 
 the witness testifying heard.' 
 
 (20) The opinions of witnesses as to value may be based 
 upon a hypothetical statement of what has been already proved 
 in the case as to the quality, condition and situation of the 
 property ; ' and they cannot be called upon to state the grounds 
 of their opinion or the mental process by which they arrive 
 at the result.' A witness cannot fortify his opinion by incom- 
 petent facts, even if the evidence might have been properly 
 admitted on cross-examination to test the opinion oi the wit- 
 ness as an expert.'" In State v. Watson " it was held that where 
 a witness states to the jury particular facts in the presence of 
 an expert witness on which the expert is to state his opinion, 
 and the latter follows the former while the facts are fresh in 
 
 1 McCarthy v. Wells, 51 Hun, 171, speoplev. Vanderhoof, 71 Mich. 158. 
 20 N. Y. State Rep. 630 ; Felska v. N. ' Re Mason, 60 Hun, 46, 38 N. Y. 
 Y. C. & H. R R Co., 152 N. Y. 389. State Rep. 533. But see Kraatz v. 
 
 2 Loveless v. Manhattan Ry. Co., 57 Brush Electric Light Co., 82 Mich. 
 N. Y. Super. Ct. 3. 457. 
 
 3 Uransky v. Dry Dock, E. B. & B. 8 Moore v. Chicago & St Paul R 
 R Co., 59 Hun, 626, 37 N. Y. State Co., 78 Wis. 120. 
 
 Rep. 543; Allen v. Union Pacific R 'Kingsland v. New York, 60 Hun, 
 
 Co., 7 Utah, 239. 489, 39 N. Y. State Rep. 433 ; Lewis 
 
 * People V. Smiler, 125 N. Y. 717, 85 Baillie & Co. v. Western Asa Co., 49 
 
 N. Y. State Rep. 1. La. Ann. 658. 
 
 5 Connelly v. Manhattan R Co., 60 !» Hunt v. Boston, 152 Mass. 168. 
 
 Hun, 495, 39 N. Y. State Rep. 561. , n 82 Iowa, 380. 
 
OPINIONS AND CONCLUSIONS. 543 
 
 the minds of the jury, the facts need not be again stated in 
 the question to the expert.' 
 
 (21) An expert cannot be asked or allowed to state to 
 what extent, in his judgment, the value of property was dam- 
 aged, if at all, by the presence of the structure of a railroad 
 and the running of its trains;'' nor can an expert testify what, 
 in his judgment, the property would be worth without the 
 railroad;' nor can he state as to the value of the lots if there 
 were no interference with the light, air and access;* nor can 
 hastate what, in his opinion, was the best use to which' the 
 property could have bqen put if it had not been for the rail- 
 road and its interference with the light, air and access. 
 
 (22) A witness may state whether a bed which he saw ap- 
 peared as if anybody had been recently sleeping in it.'' 
 
 (23) The following questions put to a medical expert are 
 proper: "What results will follow, with reasonable certainty, 
 from the injuries which you observed?"* and whether th& 
 absence of external appearance of injury is consistent with his 
 medical books ; ^ and, if the spinal cord had been injured by 
 the accident, what would be the probable result of such in- 
 jury?' 
 
 (24) In any case where the facts are undisputed, an expert 
 may be asked as to the conclusions to be drawn from them ; ' 
 and the question need not embrace every fact proved or which 
 there is evidence tending to prove.'" • 
 
 (25) An expert may be asked as- to his knowledge of the 
 existence of a custom or usage of which he must have heard 
 if it existed." 
 
 (26) A witness cannot be asked such questions as these : 
 " How much, in your opinion, was the damage sustained by 
 
 'And see Abbott v. Dwinnell, 74 Rep. 739; Howland v. Oakland Con. 
 
 Wis. 514; Jones v. Chicago, St. P., M. St. R. Co., 115 Cal. 487. 
 
 & 0. R Co., 43 Minn. 279. ' Blair v. Madison County, 81 Iowa, 
 
 2 Roberts v. New York El. R Co,; 313. 
 
 128 N. Y. 455, 40 N. Y. State Rep. 454. 8 Abbott v. Dwinnell, 74 Wis. 514 
 
 ,' Doyle V. Manhattan R Co., 40 'Fort Worth & D. C. R Co. v. 
 
 N. Y. State Rep. 478, 128 N. Y. 488. Thompson, 75 Tex. 501. 
 
 *Gray v. Manhattan R Co., 128 '» Gulf, Colorado & Santa Fe R Co. 
 
 N. Y. 499. V. Compton, 75 Tex. 667. 
 
 'People V. Fanshawe, 137 N. Y. 68. n Ambler v. Phillip, 183 Pa. St 167. 
 
 ' Forde v. Nichols, 36 N. Y. State 
 
544 KULES OF EVIDENCE. 
 
 the plaintiff in consequence of feeding the cattle the poor 
 hay instead of that agreed upon ? " ^ " What damages, in your 
 opinion, has the plaintiff sustained? "^ "From the descrip- 
 tion of the property in question, as given by the witness, what 
 would the damages be? " ' " Was the note that of the old firm 
 or of the new one? " * " What was the damage to plaintiff by 
 reason of the saw-mill lying still for a fortnight? " ^ " or by the 
 erection of another mill on the same stream, or by the with- 
 drawal of water from plaintiff's tavern?" 
 
 (27) Subscribing witnesses to a will may be inquired of gen- 
 erally as to the judgment they formed of the saneness of the 
 testator's mind at the time of the execution of the will.' 
 
 (28) A question to a medical expert as to what declarations^ 
 of a testatrix, testified to by another witness, assuming the 
 truth of such testimony, indicate to the witness' mind as to 
 testatrix's mental condition, is not objectionable as requiring 
 him to weigh qr reconcile conflicting evidence.' 
 
 III. WHAT WITNESSES MAT STATE OPINIONS. 
 
 An expert is one instructed by experience, and to become 
 such requires a course of previous habit and practice, or of 
 study, so as to be familiar with the subject;^ and none but 
 those who are shown to possess peculiar means of forming an 
 intelligent and well-instructed judgment are competent to 
 give an opinion on questions involving skill or science.' Thus, 
 the fact that a witness is familiar with earth dams does not 
 render him competent to testify as an expert in regard to 
 wooden dams.'" A witness having some knowledge of value 
 on which to base opinion can testify, there being no fixed 
 rule as to the extent of knowledge." Boat builders or cap- 
 tains of boats are competent to express an opinion of the 
 
 1 Morehouse v. Matthews, 2 N. Y. 'Pendleton v. Saunders, 17 Oreg. 
 514 124. 
 
 2 Norman v. Wells, 17 Wend. 136. 9 Gourley v. St. Louis & S. F. B- Co., 
 
 3 Paige V. Hazzard, 5 Hill, 603. 35 Mo. App. 87 ; Little Rock & Fort 
 
 4 Herroy v. Van Pelt, 4 Bosw. (N. Y.) Scott R Co. v. Bruce, 55 Ark. 65. 
 
 60. '"Wiedekind v. Tuolumne Cgunty 
 
 5 Doolittle V. Eddy, 7 Barb. 74. Water Co., 83 Cal. 198. 
 
 eClapp V. Fullerton, 84 N. Y. 190. "Avery v. New York Central & 
 'Foster v. Dickerson, 64 Vt 333. Hudson River R Co., 131 N. Y. 31, 
 
 17 N. Y. State Rep. 417. 
 
OPINIONS AND OONOLOSIONS. 545 
 
 value of a boat they have seen.^ A woman who has borne 
 children is competent to testify that a woman at a certain 
 time appeared to be pregnant.^ Those who are emploj'ed in 
 the business of railroading come within the rule rendering ad- 
 missible the opinions of those who are engaged in a particu- 
 lar trade or art.' Thus, an experienced conductor and engi- 
 neer of a train may state whether, under a special order, it is 
 necessary for a train to stop at a certain station.* And one 
 who has been engaged for thirteen years in the manufacture 
 of paris green is competent to testify as to its effect in pro- 
 ducing cutaneous diseases and paralysis.' And a witness who 
 worked with one suing for negligence, both before and after 
 the injury, although not a medical expert, may testify to his 
 ability to do a good day's work after as before the accident. 
 And the plaintiff in an action for personal injuries may tes- 
 tify as to mental injuries received.' 
 
 IV. OPINIONS AS TO QUANTITY, DISTANCE, SPEED, TIME. 
 
 {a) Expert testimony is proper to prove what would have 
 been the size of the waves, in a particular place, caused by a 
 wind blowing at the rate of sixty miles per hour.^ 
 
 (5) In an action for services rendered, the plaintiff may tes- 
 tify that he did " a full man's work every day." ' 
 
 (c) An expert witness may state the result of his examina- 
 tion of books and papers which are in evidence and are too 
 voluminous to be conveniently examined in court.^" So ex- 
 perts may state the proper diameter of the base of columns 
 to rest on certain sills of fixed size." A brakeman may state 
 that the engineer backed the tender against the car with more 
 
 1 Keller v. Paine, 34 Hun, 167; CLangworthy v. Green Tp., 88 
 Judson V. Easton, 58 N. Y. 664. Mich. 207. . 
 
 2 Sturges V. Wiltsee, 19 N. Y. ' Spurrier v. Front Street Cable R. 
 Weekly Dig. 266; Doe v. Roe, 33 Co., 3 Wash. 659. 
 
 Hun, 638; People v. Blake, 73 N. Y. sjlfrey v. Sabine & E. T. R. Co., 
 
 586. 76 Tex. 63. 
 
 3 Forth Worth & D. C. R. Co. v. » Elison v. Jones, 15 N. Y. Supp. 356. 
 Thompson, 75 Tex. 501. i" State v. Findlay, 101 Mo. 317. 
 
 ' Albert v. Sweet, 116 N. Y. 368 ; " Linoh v. Paris Lumber & G. Ele- 
 26 N. Y. State Rep. 788. vator Co., 80 Tex. 23. 
 
 ' Fox V. Peninsular White L, & C. 
 Works, 92 Mich. 243. 
 35 
 
546 EULES OF EVIDENCE. 
 
 than necessary force ; ' and one who has been a driver on a 
 horse-car may state within what time or space a driver could 
 stop a car with one horse going on a moderate trot on level 
 ground.^ And any witness may state his own observation 
 and experience as to the distance within which a train can b& 
 stopped.' So any one may state how far one could ordinarily 
 see a horse along the railroad track. And a witness familiar 
 with a railroad track may testify how far in each direction 
 cattle on a track can be seen from a certain point by an engi- 
 neer or other person.* So expert witnesses may testify as to 
 the distance within which a truck could be stopped under cer- 
 tain conditions of the pavement as to speed, etc' 
 
 {d) Locomotive engineers, firemen, switchmen and foremen 
 of yard-engines axe prima facie experts and competent to give 
 their opinions as to speed of trains.* And one who sees a 
 moving train may testify as to its rate of speed, though he 
 has not timed moving trains. Such a qualification goes to the 
 weight, not to the competency, of his evidence.' The opinion of 
 an experienced architect is admissible as to the length of time 
 necessary to remove the debris of a burnt mill previous to re- 
 building.8 So is a builder of bridges as to how long stringers 
 in bridges usually last.' So as to how long a certain kind of 
 lumber will last.'" But a witness cannot testify to the time 
 usually required to fill a cattle-guard with snow." 
 
 («) An expert may state that a ditch, as repaired, is wider 
 and deeper than the original, and also the grade of a ditch ^ 
 that a particular drain is not large enough to carry the water 
 conveyed into it by a certain cut, and that before the cut was 
 made it was sufficiently large to convey the waters which 
 
 1 Louisville & N. R. Co. v. Watson, (Tex.), 15 S. W. Rep. 120; State v. 
 90 Ala. 68 ; Pender v. Brooklyn City Main, 69 Conn. 123 ; Crawford v. State, 
 R. Co., 84 Hun, 460. 113 Ala. 1. 
 
 2 0'Neil V. Dry Dock, E.' B. & B. R 'Walsh v. Missouri P. R. Co., 102 
 Co., 139 N. Y. 125, 26 N. Y. State Mo. 583; Louisville, N. A. etc R Co. 
 Rep. 936. V. Hendricks, 128 Ind. 462 ; Pence v. 
 
 3 Harmon v. Columbia & G. R. Co., Chicago, R L & P. R Co., 79 Iowa, 
 32 S. C. 137. 389. 
 
 «Gulf, Colorado & S. F. R Co. v. 8 chamberlain v. Dunlop, 126 N. Y. 
 
 Washington, 49 Fed. Rep. 347. 45, 28 N. Y. State Rep. 875. 
 
 5 O'Neil V. Dry Dock, E. B. & B. R 9 Blank v. Livonia Tp., 79 Mich. 1. 
 Co., 129 N. Y. 125, 41 N. Y. State w McConnell v. Osage, 80 Iowa, 293. 
 Rep. 107. II Grahlmau v. Chicago, St. Paul & 
 
 6 Brown v. Rosedale Street R. Co. K C. R Co., 78 Iowa, 564. 
 
OPINIONS AND OONOLOSIONS. 54:7 
 
 would naturally come to it ; that he thinks an opening one 
 hundred feet wide in a certain railroad embankment is suflB- 
 cient to carry off the waters in times of ordinary flood.' So 
 an expert street-car conductor may state within what distance 
 an electric street-car going at a specified rate can be stopped.' 
 So an expert may give his opinion as to the distance within 
 which the engine could have been stopped when running at 
 the rate of speed at which it is shown to have been running 
 when it struck a person.' Eut a master-mechanic who never 
 drove a car cannot so testify.* 
 
 (_/) A witness may state as a conclusion of fact, based upon 
 observations made by him at the time of an accident, as to the 
 rate of speed of a car and the exertion made by the motor- 
 man to stop it, and that the car was running at too high a rate 
 of speed to stop it in the distance between the car and the 
 wagon hit by it when he discovered that the wagon would 
 not get out of the way.' 
 
 (g) In New York, L. E. & W. E. Co. v. Estell,« it was held 
 that one who came with certain cows from Scotland to this 
 country, accompanying them while being transported by rail 
 to Missouri, may, in an action by the owner against the rail- 
 'road company for injuries to them by its negligence which 
 it was claimed caused them to abort their calves, be allowed 
 to testify whether, from his experience as a shipper of this 
 kind of cattle, the trip across the ocean and detention in quar- 
 antine and the shipment by rail would cause them to abort 
 their calves if no accident had happened to them. 
 
 V. OAEE, SKILL, NEGLIGENCE PKOPER CAUSE OF ACTION. 
 
 (1) As a general rule a question which proposes to substi- 
 tute the opinion of a witness on the question of prudence and 
 care is inadmissible.' And whether a .particular act consti- 
 
 1 Kansas City, F. S. & M. R Co. v. ^ Barry v. Second Ave. R. Co., 13S 
 Cook, 57 Ark. 79 ; Osten v. Jerome, 93 N. Y. 929, 49 N. Y. State Rep. 705. 
 Mich. 196 ; Posaohane Water Co. v. 5 gears v. Seattle Con. Street Co., ft 
 Standart, 97 Cal. 476 ; Wintringham Wash. 837. 
 
 V. Hayes, 144 N. Y. 1 ; Frank v. Bab- « 147 U. S. 591 ; SchaefEer v. Phila- 
 
 cock, 156 III. 408. x delpViia & R R Co., 168 Pa. St. 209; 
 
 2 Watson V. Minneapolis Street R St. Louis, I. M. & S. R Co. v. Edwards, 
 Co., 53 Minn. 551. 49 U. S. A pp. 53. 
 
 ' Schlereth v. Missouri P. R Co., 115 ' Muitaugh v. New York Central & 
 Mo. 87 ; Ward v. Chicago, St. P., M. & Hudson River R Co., 49 Hun, 456. 
 0. R Co., 85 Wis. 601. 
 
54:8 RULES OF EVIDENCE. 
 
 tuted negligence, and whether due care required a certain act 
 to be done, are not matters of expert testimony, but of judg- 
 ment and common experience, to be determined by the jury 
 upon the facts and circumstances.' Thus, expert evidence or 
 the opinions of witnesses are not admissible upon the question 
 as to what means would be safe or ordinarily prudent to put 
 out accidental fires in a boiler-room or saw-mill.^ A witness 
 cannot give his opinion of the safet}'' of a rule given for the 
 guidance of railroad employees;^ or whether a person was 
 generally a careful and skilful man;* or whether decedent 
 got as far off the track as he could before the train sucked 
 him under ;^ or as to the manner in which a brakeman at- 
 tempted to make a coupling;* or whether or not a cattle- 
 guard could be maintained at a particular place without 
 increasing: the danger to trainmen/ 
 
 (2) Testimony of a witness as to care and skill has been 
 allowed. Thus, a physician may state, from his own knowl- 
 edge, as to the skill of another physician, who has previously 
 testified, to show the value of the latter's evidence.' So the 
 opinion of a witness as to negligence in setting a fire to brush 
 in a time of high wind, and in the management of the fire, is 
 Competent where he had knowledge of the situation, and ob-* 
 servation of the wind, and of the acts and omissions of defend- 
 ant.* So a witness may state that a turn-table is dangerous 
 for children to ride upon ; '" or that the platform of a caboose 
 was in bad condition and insufficient." 
 
 (3) The fact of care or carelessness of an employee in op- 
 erating a machine is not one involving any question of skill 
 or science, nor one founded upon any knowledge peculiar to 
 
 • Bergquist v. Chandler Iron Co., 49 ' Shervey v. Evansville & T. H. Co., 
 Minn. 511. 131 Ind. 437. 
 
 2 McNally v. Colwell, 91 Mich. 537 ; 6 geese y. Northern Pacific E. Co., 
 Cowley V. Colwell, 91 Mich. 537 : State 39 Fed. Rep. 487. 
 
 V.Summers, 36 S. C. 479; Bryant v. 'Pennsylvania R. Co. v. Mitchell, 
 
 Randolph, 133 N. Y. 70, 44 N. Y. State 134 Ind. 473. 
 
 Rep. 85. 8 Thompson v. Ish, 99 Mo. 160. 
 
 3 Nary v. New York, O. & W. R. 9 Wells v. Eastman, 61 N. H. 507. 
 Co., 135 N. Y. 759, 29 N. Y. State Rep. "Bridger v. Asheville & S. R Co., 
 630. 35 S. C. 34. 
 
 * Southern Kansas R. Co. v. Rob- "Van Gent v. Chicago, M. & St. 
 bins, 43 Kan. 145. Paul R. Co., 80 Iowa, 536 ; Springfield 
 
 V. Coe. 166 111. 33. 
 
OPINIONS AND CONCLUSIONS. 549 
 
 any class of persons, and may be testified to by one who is 
 not an expert.' Thus, a witness may state that a party " ex- 
 amined the note thoroughly ; " ' " that plaintiff was capable 
 of performing the work satisfactorily ; " » " that most any ani. 
 mal would throw it down ; " * and as to whether a railroad 
 was properly constructed at the point where the accident oc- 
 curred.' Opinions of witnesses qualified by experience, to the 
 effect that a hard-wood floor will become slippery by use so 
 as to render it dangerous to stand on while working with a 
 dangerous machine, while a soft-wood floor will not become 
 slippery, are admissible.' 
 
 (4) Evidence of experts as to the usual methods adopted by 
 railroads in the building of their roads, and as to the precau- 
 tions it is customary to adopt to protect employees, is admis- 
 sible.' So is that of an experienced seaman relative to proper 
 measures which should be taken to prevent stranding ; ' and 
 an expert may give his opinion as to the suitableness of a 
 stable.' 
 
 (5) A witness cannot testify in general terms that he acted 
 cautiously ; ^" nor that the place where plaintiff stood at the 
 time of the injury was reasonably safe ; " nor that the change 
 in a bridge left it reasonably safe for the ordinary uses of a 
 highway bridge ; '^ nor that a raised part of a station platform 
 is a dangerous place ; " nor as to whether or not a trap-door is 
 dangerous ; " nor that a fence built in a certain way is sufficient 
 to hold stock ; " nor that it would not be proper to leave any- 
 
 iMcCarragherv.Rodgers, 120N. Y. 'Armstrong v. Chicago, M. & St 
 
 636; 31 N. Y. State Rep. 593. Paul R. Co., 45 Minn. 85. And see 
 
 2 Montgomery v. Crosthwait, 90 Perry v. Jensen, 143 Pa. St. 135. 
 
 Ala. 553. 10 Mayfield v. Savannah, G. & N. A. 
 
 'Hare v. Mahoney, 61 Hun, 576; R. Co., 87 Ga. 374. 
 
 37 N. Y. State Rep. 653. " Inland & S. Coasting Co. v. Tolson, 
 
 < Chicago & A. R. Co. v. O'Brien, 139 U. S. 551. 
 
 35 111. App. 155. 12 McDonald v. State, 37 N. Y. State 
 
 'Colorado Midland R Co. v. Rep. 348 ; 137 N. Y. 18. 
 
 O'Brien, 16 Colo. 219; St. Louis, A. "Graham v. Pennsylvania Co., 139 
 
 & T. E. Co. V. Johnston, 78 Tex. 536 ; Pa. St. 149. 
 
 Paine v. Eastern Co., 91 Wis. 340. " Rolb v. Sandwich Enterprise Co., 
 
 8 Webber Wagon Co. v. Kehl, 139 36 111. App. 419. 
 
 111. 644. 15 Chicago & A. R. Co. v. O'Brien, 35 
 
 ^ Davidson v. Cornell, 132 N. Y. 228, 111. 155 ; New York E. E. Co. v. Blair, 
 
 31 N. Y. State Rep. 983. 79 Fed. Rep. 896 ; Roberts v. New York 
 
 * Hutchins v. Ford, 82 Me. 363. E. R Co., 13 L. R A. 499, 138 N. Y. 455. 
 
650 EULES OF EVIDENCE. 
 
 thing lying around loose on the platform of a pile-driver;' nor 
 that a dog-cart in which a person injured was riding was un- 
 safe for the use of two persons riding together.^ 
 
 (6) In an action for killing stock, an engineer and fireman 
 on the locomotive may state that all that was possible was 
 done to avoid collision with the stock.' So a qualified witness 
 may state that a machine was not properly handled by a per- 
 son ; * and a qualified witness who has personally examined a 
 place where an accident occurred may supplement his descrip- 
 tion of the place by his opinion as to its dangerous character, 
 founded on his actual observation.'' So an expert may give his 
 opinion as to whether or not a certain described scuttle-hole in 
 a sidewalk is so constructed as to be safe for pedestrians pass- 
 ing along the walk,* and whether the kind of fastener used is a 
 safe and practical fastener ; ^ or that revolving shafting is dan- 
 gerous machinery;^ and that cars having certain described 
 bumpers are more dangerous and difficult to couple than a cer- 
 tain other make of cars.' So one qualified may state that a 
 boy of plaintiff's strength and size could not have unhitched a 
 mule from a dump-cart in any other manner than that in which 
 he attempted to do it ;'" that machinery was reasonably adapted 
 for the purpose for which it was used and that it was in good 
 repair.'! 
 
 In McCarragher v. Rogers'^ a witness for defendant was 
 asked to state whether, from his knowledge of the plaintiff's 
 conduct while at the press, he was generally careless or care- 
 ful ; also whether or not, from what he saw of the plaintiff 
 
 1 St Louis, A. & T. R Co. v. Jones ^ Benjamin v. Metropolitan St R 
 (Tex.), 4 S. W. Rep. 309 ; Morris v. Co., 50 Mo. App. 602. 
 
 Farmers' Mut R Ins. Co., 63 Minn. ' Harley v. Buffalo Car Mfg. Co., 65 
 
 420 ; Kaufman v. Maier, 18 L. R A. Hun, 624, 48 N. Y. State Rep. 58 ; Atoh- 
 
 124, 94 Cal. 369. ison, T. & S. F. R Co. v. Chance, 57 
 
 2 Robinson v. Waupaca, 77 Wis. 544. Kan. 40 ; Illinois C. R Co. v. Davison, 
 
 3 Little Rock & M. R Co. v. Shoe- 46 U. S. App. 300. 
 
 craft, 56 Ark. 465 ; Northern R R Co. spuHnian Palace Car Co. v. Har- 
 
 V. Uriin, 158 U. S. 371 ; McGonigle v. kins, 55 Fed. Rep. 933. 
 
 Eane, 20 Colo. 293; Kennelty v. Bal- 9 East Tennessee, V. & G. R Co. v. 
 
 timore & O. R Co., 166 Pa. St 60: Turvaville, 97 Ala. 132. 
 
 Betts V. Chicago, R L & P. R Co., 26 lOKehler v. Schwenk, 151 Pa. St. 
 
 L. R A. 348. 505, 31 Am. St Rep. 777. 
 
 * Galveston Rope & T. Co. v. Bar- n Alabama Connellsville Coal & I. 
 
 kett, 3 Tex. Civ. App. 261 ; Helfen- Co. v. Pitts, 98 Ala. 385. 
 
 Btein v. Medart, 136 Mo. 595. 12 120 N. Y. 526. 
 
 ^ McNerney v. Reading, 150 Pa. St 
 611. 
 
OPINIONS AND CONCLUSIONS, 551 
 
 just at the time of the accident and before it occurred, he was 
 acting in a careful or careless manner while sitting on the press. 
 These questions were excluded, and upon that subject the court 
 say: "Whether the plaintiff was careless depended upon the 
 manner he conducted himself, and, ivhen that appeared, the 
 conclusion whether the accident or injury was, to any extent, 
 attributable to his want of care was for the jury, and that was 
 a question upon the determination of which the result of the 
 accident was dependent. It was not one for expert evidence 
 resting in opinion of witnesses. The fact of care or careless- 
 ness of the plaintiff was not one involving any question of skill 
 or science to determine, nor was it founded upon any knowl- 
 edge peculiar to any class of persons." So, in Carpenter v. 
 Eastern Truss Co.,^ it was held proper for the court to exclude 
 an answer to the following question : " Did Mr. Carpenter, in 
 your opinion as a canal boatman, in any way omit or neglect 
 to do anything which he might have done to save his boat?" 
 So a witness cannot testify that he acted cautiously.^ It seems 
 that a witness should be allowed to testify that the person in- 
 jured was as far off the track as he could be before the train 
 sucked him under.' 
 
 (7) An expert may state as to how freight trains are made 
 up on the road, when the duty of the yard-master ceases and 
 that of the conductor begins, how cars are put in on end 
 sidings, and as to the custom of switching cars.* Eut an ex- 
 pert cannot state that a person had sufficient opportunity to 
 alight from a car if sh6 had proceeded right out of the car, 
 or whether or not a train stopped long enough to permit a 
 passenger to safely alight ; ° or that timbers used were improper 
 for the purpose, or were insufficient to hold the partition, or 
 what should have been the length of anchors to sustain the 
 partition;' or that a certain place was too narrow to allow a 
 wagon to turn around in it with safety;' or that a sidewalk 
 
 '71 N. Y. 574. s Illinois C. E. Co. v. Blye, 43 111. 
 
 i^Mayfield v. Savannah, etc. R Co., App. 612; Madden v. Missouri P. E. 
 
 87 Ga. 374 ; Central Ry. Co. v. Eeyles, Co., 50 Mo. App. 666. 
 
 84 id. 420; Little Rook & M. Ry. Co. sQerbig v. N. Y., L. E. & W. R. Co., 
 
 V. Shoecraft, 56 Ark. 465 ; Sherfey v. 67 Hun, 649, 51 N. Y. State Rep. 534 ; 
 
 Evansville, etc. Ry. Co., 131 Ind. 427. Davis v. N. Y., L. E. & W. R. Co., 53 
 
 'City of Elkhart v. Witman, 123 id. 740, 69 Hun, 174 ; Chicago v. Seben, 
 
 Ind. 538. 165 111. 371. 
 
 .< Price V. Richmond & D. R. Co., 88 • Lang v. Terry, 163 Mass. 156; 
 
 S.C.118;Chicagov.Seben, 165 111.371. Dooner v. Delaware & H. C. Co., 164 
 
552 EULES OF EVIDENCE. 
 
 was reasonably safe for public travel.^ But he may state that 
 the place where pla^intiff stopped was the best, or at least a 
 proper place ;^ that the muzzle of a pistol would have to be 
 very close to clothing to scorch it ; ' that if the bell of an en- 
 gine had been rung he would have heard it.* 
 
 (8) 'In an action for injuries to a vessel from striking on a 
 rock in proximity to a wharf it is proper to show that the ves- 
 sel was properly loaded.' 
 
 (9) In an action for the death of a passenger from being 
 struck by a train while crossing the track upon alighting from 
 another train, evidence that the conductor of the latter train 
 placed a stool on that side of the train to assist passengers in 
 alighting is admissible." 
 
 (10) In an action for injuries at a railroad crossing, where 
 it is shown that the conductor in charge of a car saw the in- 
 jured person while his car was at a certain distance from the 
 place of injurj'^, evidence as to the distance in which such a car 
 with a sound brake could be stopped is competent, relevant 
 and material.'' So is evidence of obstructions interfering with 
 the view of the train from the road and the time it would take 
 to cross.^ So is evidence of the absence of a flagman at the 
 place, and that no bell was rung or whistle blown as the train 
 approached the crossing.' 
 
 (11) In an action by one whose foot was caught in a hole in 
 a sidewalk which a railroad company was bound to maintain 
 across its tracks, and who was run over by a train, evidence 
 that others had their feet caught in the same hole, which had 
 existed for a long time, is competent.'" 
 
 (12) A rule of a railroad company as to the signal for stop- 
 ping a train is admissible upon the question of negligence of 
 the engineer in failing to stop his train at the appearance of 
 
 Pa. St. 17; Delaware, L. & W. E. Co. SMcCaldin v. Parke, 143 N. Y. 564, 
 
 V. Ashley, 67 Fed. Rep. 309 ; Interna- 60 N. Y. State Rep. 397. 
 
 tional & G. N. R. Co. v. Kuehn, 2 Tex. 6 Lustig v. N. Y., L. E. & W. R Co., 
 
 Civ. App. 310. 48 N. Y. State Rep. 916, 65 Hun, 548. 
 
 1 Girard v. Kalamazoo, 92 Mich. 610. ' Ward v. Chicago, St. P.; M. & 0. 
 
 2 Cookton V. Pittsburg & W. R. Co., R. Co., 85 Wis. 601. 
 
 179 Pa. St. 184. 8 international & G. N. E. Co. v. 
 
 « Miller v. State, 107 Ala. 40. Kuehn, 2 Tex. Civ. App. 210. 
 
 ^Stevers v. N. Y. C. & H. R. R. Co., ^priess v. N. Y. C. & H. R. R. Co., 
 7 App. Div. 393; Dwyer v. Buffalo G. 67 Hun, 205, 51 N. Y. State Rep. 891. 
 E. Co., 30 id. 134. lO Retan v. Lake Shore & M. S. R. 
 
 Co., 94 Mich. 146. 
 
OPINIONS AND CONCLUSIONS. 553 
 
 lights upon the track. So a train-report sheet kept in the 
 train dispatcher's oflBce, showing the time of the starting of 
 trains therefrom, is material on an issue as to whether the ap- 
 proach of an inward train was hidden from the plaintiff by a 
 train outward.^ 
 
 VI. SANITT AND MENTAL CAPACITT. 
 
 (a) In some states a non-expert witness may express his 
 opinion as to the mental condition of a person, after having 
 stated the facts upon which such opinion is based ; ^ but they 
 cannot state whether a person was, in their opinion, rational 
 or irrational, based upon their conversation with him ;^ neither 
 can a subscribing witness state as to whether testatrix had 
 suflBcient strength of mind to comprehend a clause of her will 
 creating a charitable trust.* It seems that a witness may 
 properly compare the mind and memory of a testatrix as re- 
 garded the amount of property she was worth and the dispo- 
 sition she wished to make of it with that of a child of a 
 specified age.' But a non-expert cannot testify as to the im- 
 pression made upon his mind that a person was failing very 
 fast physically as well as mentall}^* Near neighbors and old 
 friends of a testator, in the habit for years of visiting fre- 
 quently, who describe him as lying in a stupor and unable to 
 carry on a conversation, may give their opinion as to his com- 
 petency to make a will or transact business.'' A master in 
 chancery who has stated the appearance and deportment of a 
 testatrix, and the questions asked her hj counsel and her an- 
 swers thereto on examination before him, may further state 
 that he saw no indication of insanity in her;^ and questions 
 as to whether there was any change in the acts, conduct or 
 
 1 Donovan v. Boston & M. R. Co., 38 N. T. State Rep. 402 ; Hoover v. 
 
 158 Mass. 450, 47 Alb. L. J. 351. State, 48 Neb. 156. 
 
 2Scaif V. Collin County, 80 Tex. ^Melanefy v. Morrison, 153 Mass. 
 
 514 ; Territory v. Roberts, 9 Mont. 13 ; 473. 
 
 Boiling V. State, 54 Ark. 588 ; State v. ^ Richmond's Appeal, 59 Conn. 220. 
 
 lewis, 30 Nev. 838; Burkhardt v. «ReKlock, 49 Eun, 450, 19 N. Y. 
 
 Gladish, 133 Ind. 887; Blanton v. State Rep. 307. 
 
 State, 1 Wash. 365; Chickering v. Tgwailes v. White, 149 Pa. St 261; 
 
 Brooks, 61 Vt 554 ; Genz v. State, 58 Cuna. Title Ins. & T. Co. v. Gray, 150 
 
 N. J. L. 483; Kimberly's Appeal, 68 id. 355. 
 
 Conn. 438. 8 Foster v. Dickerson, 64 Vt. 333. 
 
 3 Paine v. Aldrioh, 188 N. Y. 544, 
 
55i EITLES OF EVIDENCE. 
 
 manner of doing business of a person alleged to have been 
 insane are not inadmissible as calling for opinions.^ And a 
 witness who had seen the deceased every day or two for four 
 or five months and had talked with him is competent to tes- 
 tify on a trial for murder that he was a vicious, dangerous 
 man.2 So the statements of a witness that the accused was 
 " talking mad," and that the accused and another " were trying 
 to fight' or trying to get together," are admissible as being 
 mere statements of facts.' 
 
 (J) An expert cannot state that a person has not suflScient 
 mental strength to manage her estate or conduct her business; ' 
 nor can the capacity of an employee to manage hands under 
 him be shown by expert testiniony, but the facts must be 
 stated so that the jury may decide for themselves.' 
 
 (c) A witness who is not an expert may be allowed to tes- 
 tify to what a person said or did, and then he may be allowed, 
 if he testifies to remarks made or acts done, to give his opin- 
 ion as to whether such acts or remarks were rational or irra- 
 tional ; but even if he testifies to particular words spoken or 
 particular acts done, he cannot then be allowed to go farther 
 than to express his opinion as to whether such words and acts 
 were rational or irrational.* Thus, while non-expert witnesses 
 ■cannot express a general opinion as to sanity, nor give an 
 opinion independent of the facts and circumstances within 
 their own knowledge, they can detail the facts known to them 
 which show insanity and characterize the acts and conversa- 
 tions detailed as rational or irrational.'' And a non-expert • 
 witness cannot be permitted to express an opinion or cliarac- 
 terize acts and conversations of a person until he has testified 
 to something in the appearance or conversation of the party 
 which is sufficient at least to justify the inference of incompe- 
 
 1 White V. Davis, 63 Hun, 622, 42 N. Y. State Rep. 901 ; Boettger v. 
 
 N. Y. State Rep. 901. Scherpe & K. A. I. Co., 136 Mo. 531. 
 2 Turner v. State, 5 Ohio C. C. 538. 'People v. Taylor, 138 N. Y. 898, 
 
 3 People V. Conroy, 153 N. Y. 258. 52 N. Y. State Rep. 914; Armstrong 
 
 * Re Mason, 140 N. Y. 658, 38 N. Y. v. State, 30 Fla. 170; Smith v. Smith, 
 
 State Rep. 533. 157 Mass. 389; Hararick v. State, 134 
 
 5 Troy Fertilizer Co. v. Logan, 90 Ind. 324 ; Jamison v. People, 145 111. 
 
 Ala. 325. 357; State v. Maier, 36 W. Va. 757: 
 
 " Holcomb V. Holcomb, 95 N. Y. Stanley's Appeal, 62 Conn. 335 ; Lynch 
 
 316 ; White v. Davis, 62 Hun, 633, 43 v. Doran, 95 Mich. 395 ; Com. v. Buc- 
 
 cieri, 153 Pa St 535. 
 
OPINIONS AND CONCLUSIONS. 555 
 
 tency;' and when the grounds of such opinion are trivial, or 
 merely such incidents as are common alike to sane and insane 
 people, such opinion should not be allowed.^ But witnesses 
 in rebuttal on the question of insanity, who have had transac- 
 tions with the party alleged to be insane, and have known 
 him for months immediately preceding the acts alleged to 
 be irrational, may be asked whether they ever observed any- 
 thing about him, or what he said or did, that indicated in- 
 sanity.' 
 
 (d) A witness who was present when a will in controversy 
 was executed, and who states fully the condition of the testa- 
 trix and her appearance and conversation, may also be per- 
 mitted to give her opinion as to the mental capacity of the 
 testatrix at the time.'' 
 
 (e) An expert may be asked whether there is any form of 
 insanity known to the medical profession w^here the mind at 
 fits comes, and then there is a blank and it goes.. Such ques- 
 tion calls for a fact, and is not of a nature making hypothesis 
 necessary.^ So an expert witness as to the condition of a per- 
 son's mind may testify directly what is insanity or what causes 
 it, but must assume hypothetical facts when he states his con- 
 clusion.® Hypothetical questions as to insanity may include 
 any portion of the actual history of the case of which evidence 
 has been given.' But a question based in part on personal 
 knowledge and partly on a hypothetical case is not allow- 
 able.8 
 
 (/) "Where the issue is as to soundness or unsoundness of a 
 person, an expert witness cannot state that the supposed luna- 
 tic had not mental strength to manage his estate or conduct 
 the business connected with it, or that he was not possessed 
 of testamentary capacity.' 
 
 {g) An expert may, upon a hypothetical statement of facts, 
 give his opinion as to " the usual and ordinary capacity for 
 doing business " of such a man as a grantor in a deed whose 
 
 1 Prentiss v. Bates, 93 Mich. 234. ^ Price v. Richmond & D. R. Co., 38 
 
 •2 Re Schneider, 31 Wash. L. Rep. S. C. 133. 
 
 (D. C.) 323; Davis v. United States, 'Prentiss v. Bates, 93 Mich. 234 
 
 165 U. S. 373. estate v. Welson, 117 Mo. 570. 
 
 3 State V. Maier, 36 W. Va. 757. » Matter of Arnold, 14 Hun, 535 ; 
 
 ^ Brown v. Mitchell, 75 Tex. 9. Matter of Mason, 60 id. 46, 140 N. Y. 
 
 « People V. Osmond, 138 N. Y. 80, 51 638, 38 N. Y. State Rep. 533. 
 
 N. 
 
 Y. State Rep. 737. 
 
556 EtJLES OF ETIDENCE. 
 
 mental capacity is in issue.^ And an expert may state his 
 opinion as to the sanity of a person based on his own knowl- 
 edge and conversation with him.^ He may be examined as to 
 the nature and effect of disease, the effect of particular treat- 
 ment, and generally as to insanity in its various indications 
 and manifestations.' But to allow any witness to state whether 
 or not a testator had capacity to make a will or do any other 
 act would be calling on the witness to pass upon the question 
 in issue, leaving nothing for the court or jury.* It seems that 
 he must have made a study of mental diseases.^ 
 
 (A) The testimony of an expert as to the insanity of an ac- 
 cused, based upon testimony in the case assumed to be true, is 
 competent, but inferences from facts proved are to be drawn 
 by the jury.^ Thus, the opinion or belief of a witness as to 
 whether the accused comprehended the situation and what 
 was transpiring at or soon after the homicide is incompetent 
 on a trial for murder.' But in State v. Leehraan' an expert 
 was allowed to state whether or not the defendant knew moral 
 good from evil and right from wrong. In Massachusetts or- 
 dinary witnesses, whatever their opportunities of observation, 
 cannot give a mere opinion as to the mental condition of a 
 party ; ^ and the opinion of an attesting witness to a will formed 
 
 iPool V. Dean, 152 Mass. 589. 10 Ired. (N. C.) L. 380; Dean v. Mc- 
 
 2 People V. KemraJer, 119 N. Y. 580, Lean, 48 Vt. 413 ; Transportation Line 
 30 N. Y. State Rep. 198; Taylor v. v. Hope, 95 U. S. 397; Moreland v. 
 State, 83 Ga. 647; People V.Young, 151 Mitcliell Co., 40 Iowa, 394; Walker 
 N. Y. 810. V. Fields, 38 Ga. 837. 
 
 3 State V. Meyers, 99 Mo. 107. « People v. McElvaine, 30 N. Y. 
 < Re Blood's Estate, 63 Vt. 359 ; Re State Rep. 977, 131 N. Y. 250. 
 
 McCarthy, 55 Hun, 71, 38 N. Y. State 'People v. Fish, 135 N. Y. 136, 34 
 
 Rep. 343. N. Y. State Rep. 840 ; People v. 
 
 sHutchins v. Ford. 83 Me. 363; Smiler, 35 N. Y. State Rep. 1, 135 N. Y. 
 
 Williams v. Brown, 38 Ohio St. 547 ; 717. 
 
 Covey V. Campbell, 115 Ind. 157; s 49 N. W. Rep. 3 (S. D.). 
 
 Eagle Mfg. Co. v. Browne, 58 Ga. ^ Williams v. Spencer, 150 Mass. 
 
 840 ; Thompson v. Boyle, 85 Pa. St 346 ; McCurry v. Hooper, 13 Ala. 833 ; 
 
 477 ; Egglestou v. Boardman, 31 Mich. Com. v. Fairbanks, 3 Allen, 511 ; Hast; 
 
 14; Page v. Parker, 40 N. H. 47, 59; inga v. Ryder, 99 Mass. 633; Chandler 
 
 State V. Knight, 43 Me. 11 ; People v. v. Barrett, 31 La. Ann. 58 ; Davis v. 
 
 Gonzales, 35 N. Y. 49, 61; Buffum v. State, 35 Ind. 496; State v. Reddick, 
 
 Harris, 5 R. I. 343; Albright v. Cor- 7 Kan. 143; People v. Schuyler, 106 
 
 ley, 40 Tex. 105 ; Pettibone v. Smith, N. Y. 398 ; Fayette v. Chesterville, 77 
 
 37 Mich. 579, 581; Moulton v. Mc- Me. 38; State v. Meyei-s, 99 Mo. 107: 
 
 Owen, 103 Mass. 587 ; Sikes v. Paine, Bank v. Wirebach, 106 Pa. St. 37 ; 
 
OPINIONS AND OONCLUSIONS. 557 
 
 at another time, before or after the execution of the will, In 
 respect to the testator's mental capacity, stands like that of 
 any other witness and is not admissible. Subscribing witnesses 
 to a will are treated as experts with regard to the sanity of the 
 testator at the time of its execution.' 
 
 VII. MOTIVES, INTENT, THOUGHTS, BELIEF. 
 
 (1) As a general rule a witness cannot state his motives, 
 intent, thoughts or belief, or those of another person. The 
 motives and opinions of a witness who, for the purpose of 
 showing knowledge by the employer, testified in an action 
 by an employee for personal injuries from a defective shaft, 
 that he notified the foreman of the defect, are admissible.^ 
 But the knowledge or intent with which an act is done, when 
 material, may be proved by the direct testimony of the actors.' 
 Thus, where it is material to know whether a grantor acted in 
 good faith in making a deed, or the motives of the grantee, 
 either may testify as to his intent in the transaction ; * and a 
 party may testify that representations of the other party in- 
 duced him to make the trade.' But uncommunicated motive 
 or intention of a party is a matter to be drawn from the facts 
 and circhmstances of the case, and is not the subject of direct 
 proof.' Where it is material to know whether a transfer was 
 made in good faith or was executed to defraud creditors, one 
 of two grantees as a witness cannot be asked if the trade 
 was })onafide? This is upon the ground that he cannot swear 
 to the intent of the other party. In an action for assault, evi- 
 dence as to the manner in which the words spoken by defend- 
 ant at the time of the assault were understood by the party 
 
 Haney v. Clark, 65 Tex. 93 ; Swan v. Rep. 720 ; People v. Wright, 93 Cal. 
 
 Middlesex, 101 Mass. 173 ; Heal v. 564 ; Corker v. Corker, 95 Cal. 308. 
 People, 43 N. Y. 270. 3 ciark v. Marshall, 63 N. H. 498 ; 
 
 1 Needham v. Ide, 5 Pick. 510 ; Tit- Glazer v. Mason, 24 Mo. App. 321. 
 low V. Titlow, 54 Pa. St. 216 ; Walker < Nixon v. McKinney, 105 N. C. 23 ; 
 
 V. Walker, 34 Ala. 469 ; .Williams v. Angell v. Pickard, 61 Mich. 561 ; Mann 
 
 Spencer, 150 Mass. 346 ; Garrison v. v. Taylor, 78 Iowa, 355 ; Schmick v. 
 
 Blanton, 48 Tex. 399 ; Elder v. Ogle- Noel, 73 Tex. 1 ; Peterson v. Russell, 
 
 tree, 36 Ga. 64; Re Porter's Will, 17 29 L. R A. 613, 63 Minn. 220. 
 App. Div. 267. 6 Pridham v. Weddington, 74 Tex. 
 
 ^Kauffman v. Maier, 94 Cal. 269; 854; Worcester Coal Co. v. Utley, 167 
 
 Alabama & G. S. R. Co. v. Hill, 98 Mass. 588. 
 
 Ala. 514; Lewis v. State, 36 Am. St. « Baldwin v. Walker, 91 Ala. 428. 
 
 7 Wolf V. Arthur, 112 N. C. 691. 
 
558 EULES OF EVIDENCE. 
 
 assaulted is inadmissible.^ But defendant may state his ob- 
 ject and purpose in striking,^ although he cannot testify to his 
 uncommunicated intent in doing the act. A witness cannot 
 state as to what he meant by a certain sworn statement.' He 
 may state his understanding of alleged slanderous words.* A 
 mortgagee may state his intent in taking a mortgage,^ or that 
 he had never parted with the possession of deeds with intent 
 to pass the property purported to be conveyed. It seems to 
 be a general rule that where the doing of an act is not dis- 
 puted, but is affirmed, whether the act shall be held valid 
 or invalid hangs upon the intent with which it was done, 
 which intent from its nature would be formed and held with- 
 out avowal. He upon whom the intent is charged may testify 
 whether he secretly held such intent when he did the act. 
 Thus, an insolvent assignee in trust, charged with the fraudu' 
 lent intent to hinder and delay creditors, may be called in 
 support of the deed of trust, and may state that when he 
 made it, he had no fraudulent purpose;* and one sued for 
 malicious prosecution may testify that in setting on foot the 
 legal proceedings he believed there was cause for them. But 
 that an act should be held to have or not to have effect, and 
 one party to it to be bound or not as the other party to 
 it should by his undisclosed purpose have determined, is war- 
 ranted by no sound principle. Thus, the intent of a party, 
 unexpressed, in making a contract, is not admissible in evi- 
 dence to show what the contract was.' But it is said in Yerkes 
 V. Salomon ^ that it is proper to ask one of the parties to a 
 contract for the sale of stocks his intent as to delivery. 
 
 (2) It is competent to show by parol that by executing a 
 second lease the landlord did not intend to declare the former 
 lease forfeited.' And upon a question of fact as to whether a 
 sale was made for the purpose of hindering, delaying or de- 
 frauding his creditors, the seller may testify directly as to 
 Avhether he in fact intended by the sale to hinder, delay or 
 
 iPeoplev. Moore, .50 Hun, 356. estarin v. Kelley, 88 N. Y. 418; 
 
 2 Berry v. State, 30 Tex. App. 423. People v. Baker, 96 K Y. 340. 
 
 3 Wilcox V. Joslyn, 32 N. Y. State 'Dillon v. Anderson, 43 N. Y. 331; 
 Rep. 423; Davis v. Marvin, 11 App. Waugh v. Fielding, 48 id. 681; Fielder 
 Div. 440. V. Darrin. 50 id. 437; C. Aultman & 
 
 < Freeman v. Sanderson, 123 Ind. Co. v. Allen, 13 Tex. Civ. App. 327. 
 864. 8 11 Hun, 471. 
 
 5 Gentry v. Kelley, 49 Kan. 82 ; Wor- 9 Thomas v. Hukill, 34 W. Va. 385, 
 cester Coal Co. v. Utley, 167 Mass. 558. 
 
OPIliflONS AND CONCLUSIONS. 559 
 
 defraud his creditors.^ But no one can testify as to the inten- 
 tion of another.^ 
 
 (3) In an action against a railroad company for the wrong- 
 ful expulsion of the plaintiff by its conductor from its train, 
 the conductor may testify whether he intended to expel the 
 plaintiff, or was misunderstood in his direction which the 
 plaintiff obeyed.' In an action for enticing plaintiff's wife tO' 
 leave him, the defendant may testify that he had no intention 
 to bring about a separation.'' In an action for surety of the 
 peace the defendant may testify that he had no intention to 
 hurt the complainant.' One sued for libel may state that he 
 had no ill-will against the plaintiff and had no other motive in 
 making the publication than the public good;* and officers 
 of a corporation sued for libel may testify that they had not 
 and did not know that any officer or employee had any hatred, 
 ill-will or malicious intention toward the plaintiff in the pub- 
 lication of the alleged libel.'' 
 
 (4) A witness can prove the fact of an understanding be- 
 tween parties as to the delivery of goods, although he is not 
 able to testify to the terms.^ 
 
 (5) A person injured by the explosion of gunpowder in a 
 hole in which he was drilling under the direction of the gen- 
 eral manager of a stone-quarry may testify that he believed 
 that there was no danger after being so assured by the gen- 
 eral manager;' and the plaintiff in an action for injuries to 
 himself and team, alleged to have resulted from a defective 
 railing of a bridge, the defense being that he was guilty of 
 contributory negligence in not jumping from the wagon when 
 his team began backing, may testify that while the team was 
 backing he looked around and saw the railing and thought 
 that it would be sufficiently strong to stop the team." It has 
 
 'Gordon v. Woodward, 44 Kan. 155 111. 310; Nash v. Minnesota T. 
 
 788; Wilson v. Clark, 1 Ind. App. 183 ; Ins. & L. Co., 163 Mass. 574 
 
 Gushing v. Friendship, 89 Me. 535. ^ Hay v. Reid, 85 Mich. 296 ; ScuUi.n 
 
 2Rindskopf V. Myers, 77 Wis. 649; v. Harper, 46 U. S. App. 673, 78 Fed. 
 
 Drake v. State, 39 Tex, App. 305. Rep. 460. But see Mowry v. Raabe, 89 
 
 3 Georgia R. & B. Co. v. Eskew, 86 Cal. 606. 
 
 Ga. 641; Mutual L. Ins. Co. v. Hull- '' Brown v. Massachusetts Title Ins. 
 
 man, 145 U. S. 385; Cadwalader v. Co., 151 Mass. 137. 
 
 Zeh, 150 id. 171. s Webster v. Le Compte, 74 Md. 349. 
 
 ■•Tasker v. Stanley, 153 Mass. 148. 9 Malcolm v. Fuller, 153 Mass. 160. 
 
 5 Stratton v. Lockhart, 3 Ind. App. " Baldridge, etc. Bridge Co. v. Cart- 
 
 380; National Syrup Co. v. Carlson, rett, 75 Tex. 628. 
 
560 EULES OF EVIDENCE. 
 
 been held that a witness may testify on direct examination 
 that a person appeared worried,^ or that he felt and exhibited 
 mental anguish,^ or that two persons were friendly,' or that 
 a person appeared mad or to be in fun,* or that persons were 
 " talking mad and looked like they were going to fight." The 
 following questions were held proper: "Did the noise sound 
 as if the person was in joy or distress? "Was it as if she was 
 laughing or crying, or if she was suffering pain or enjoying 
 pleasure, or was she making a mere idle noise as if nothing 
 was the matter with her?"' But in Messmer v. People^ it 
 was held error to allow a witness to be asked what certain 
 cries which he had testified that he heard indicated, — whether 
 the person was crying for joy, or what. It was there said: 
 "The question called for the conjecture of the witness as to 
 the cause of^the cries and not for a description of them. The 
 former was incompetent, though the latter was not. It was 
 for the witness to describe the cries so as to give the jury as 
 correct an idea of them as possible, and then for the latter to 
 draw such inferences therefrom as in their judgment were war- 
 ranted." Again, we find in Blake v. People' that it was held 
 proper for a witness, when asked if he could swear that the 
 deceased was not choking defendant, to answer : " I would not 
 swear it, but I don't think he was." In that case the court 
 say : " Every witness must swear according to the impression 
 on his mind, more or less strong. It has been held that a wit- 
 ness may testify to an impression. ... A witness may 
 testify to his belief in the identity of a person or of the hand- 
 writing of an individual, though he will not aver positively 
 thereto." In Eex v. Miller ' the witness was asked on cross- 
 examination in behalf of the prisoner whether the hold of the 
 prisoner and deceased upon each other was a friendly or un- 
 friendl}'^ grasp. He said he did not know ; he believed it was a 
 friendly grasp. This was held to be proper. So a witness may 
 say, to the best of his judgment, that a rail was broken at a cer- 
 tain place but that he could not be positive, as a witness is not 
 
 1 State V. Bradley, 64 Vt. 466. 6 Melick v. State (Tex.), 34 S. W. 
 
 2 Western Union Tel. Co. v. Adams, Rep. 417. 
 
 75 Tex. 531. e 45 N. Y. 1. 
 
 3 State V. James, 31 S. C. 218. ' 73 N. Y. 586. 
 * Williams v. State, 47 Ark. 230. 8 3 Wils. 427. 
 
OPINIONS AND CONCLUSIONS. 561 
 
 required to give his testimony with absolute positiveness. But 
 it seems that testimony by a witness as to his impression is 
 not competent unless it appears that what he terms his im- 
 pression is really his recollection. Thus, where a witness has 
 been in a position to know the facts, but his memory has 
 grown dim, what he thinks is his recollection is admissible in 
 connection with other testimony.^ Upon an issue whether a 
 sale of bonds was made by defendants or the bonds merely de- 
 livered by them on the order of a third person, it is not com- 
 petent for defendants to ask the person who acted in the 
 transaction, " Did your firm ever sell the bonds to plaintiff?" ^ 
 A witness acquainted with a person may testify as to whether 
 she had negro blood;' so a witness may testify whether ani- 
 mals' tracks indicated that they had been running, and may 
 give his opinion as to the direction in which the animals were 
 going.* 
 
 (6) So a defendant in an action for malicious prosecution 
 may testify that he was not prompted by ill-will and malice 
 in prosecuting plaintiff on the charges made against him.^ A 
 mortgagee may testify directlj^, when the validity of a chattel 
 mortgage is in issue, what her intention was in taking the 
 mortgage.' One indicted for aggravated assault in striking a 
 boy with a switch has the right to testify in his own behalf 
 as to his object and purpose in striking the boy for the pur- 
 pose of showing his motives and intent.'' Evidence that a con- 
 ductor was in a bad temper when he re-entered the coach 
 after ejecting a passenger therefrom has been hold to be com- 
 petent upon the question whether or not he ejected her in a 
 rude or rough manner.^ 
 
 (7) Evidence that a person felt and exhibited mental anguish 
 on account of the delay in delivering a telegram is admissible 
 
 1 People V. Teague, 106 N. C. 576 ; 14 N. Y. State Rep. 154 ; Inquirer Co. 
 Harris v. Nations, 79 Tex. 409 ; Pugh v. Johnson, 73 Fed. Rep. 443 ; Ben- 
 V. Ayers, 47 Mo. App. 590 ; Alabama, nett v. Salisbury, 45 U. S. App. 636, 78 
 etc. Ry. Co. v. Hill, 93 Ala. 514. Fed. Rep. 769; Hartley v. Phillips, 179 
 
 2 Nicolay v. Unger, 80 N. Y. 54 ; Pa. St. 175. 
 
 McCosker v. Banks, 84 Md. 393. « Gentry v. Kelly, 49 Kan. 83. 
 
 'Hopkins v. Bower. Ill N. C. 175. 'Berry t. State, 30 Tex. App. 433; 
 
 * Chicago, etc. Ry. Co. v. Legg, 33 Wallace v. United States, 163 XJ. S. 466. 
 
 111. App. 318. 8 St, Louis & F. R Co. v. Brown, 
 
 SMcCormack v. Perry, 47 Hun, 71, 63 Ark. 254. 
 
662 EDLES OF EVIDENCE. 
 
 in an action where damages are allowable for such negligence.^ 
 A witness having knowledge may state whether or not parties 
 were friendly ; ^ or that the statements of a party were made 
 voluntarily ; ' or that witness expected to meet a person at a 
 certain place/ 
 
 (8) In an action for negligence plaintiff may state his rea- 
 sons for returning from the street where he had been walking 
 to the sidewalk where the accident occurred.' 
 
 (9) A master of a ship may testify in relation to his mate, 
 " I had every reason to believe the man was sufficient for a 
 coasting mate. I believed at the time he was capable." * One 
 of the makers of a note may state whether he signed it as prin- 
 cipal or surety.'' In an action for slander in charging plaintiff 
 with the commission of a certain crime, the defendant is en- 
 titled to testif}'^ in mitigation of damages that he did no£ intend 
 to charge the plaintiff with the commission of such crime.' 
 
 (10) A party may testify that she had never parted with the 
 possession of a deed with intent to pass the property purport- 
 ing to be conveyed.' Witnesses may give their understanding 
 of alleged slanderous words spoken in their presence ; "• and a 
 witness may state what he understood from the language and 
 conduct of a person, when such understanding is material to 
 the issue." A witness may testify that the reason he passed 
 behind defendant, who is charged with murder, was that he 
 expected deceased would strike at defendant with a billiard 
 cue, and that he himself might get hit." 
 
 (11) "Where the issue is as to whether certain property had 
 been sold to defendant or a third person, the plaintiff may 
 show that just before the sale he had been advised not to sell 
 the property to such third person. He may prove this by the 
 person who gave him the advice." Where goods and chat- 
 
 1 Western Union Tel. Co. v. Adams, « Lally v. Emery, 54 Hun, 517, 28 
 75 Tex. 531. N. Y. State Kep. 127; Richardson v. 
 
 2 State V. James, 31 S. C. 218. Freeman, 56 Kan. 468 ; Wallace v. 
 
 3 State V. Holden, 43 Minn. 350. United States, 163 U. S. 466. 
 
 * State V. Thompson, 41 La. Ann. 'Stevens v. Stevens, 150 Mass. 557. 
 
 1088. w Freeman v. Sanderson,- 128 Ind. 
 
 5 Fox V. Village of Fort Edward, 48 264 ; People v. Moore, 50 Hun, 356, 20 
 Hun, 363, 16 N. Y. State Rep. 303, 121 N. Y. State Rep. 1. 
 
 N. Y. 666. "Fisks v. Gowing, 61 N. H. 431. 
 
 6 Hutchins v. Ford, 82 Me. 363. 12 Cochran v. State, 28 Tex. App. 423. 
 ' Druly V. Johnson, 21 111. App. 267. " Bronner v. Frauenthal, 37 N. Y. 
 
 166. 
 
OPINIONS AND CONCLUSIONS. 5C3 
 
 tels are levied upon as the property of A., which are claimed 
 by B. by virtue of a sale from A. to him, it is competent, in a 
 suit to test the validity of the sale, for B. to show, by one in 
 whose possession the property is found, a conversation at the 
 time of the alleged sale between A. and B. that the property 
 bad been sold to B. So a person may explain the reason for 
 jumping from a train.' In actions for criminal conversation, 
 if it is material, with the view of increasing or diminishing the 
 damages, to ascertain upon what terms the husband and wife 
 hved together before the seduction, their language and deport- 
 ment towards each other, their correspondence together, and 
 their conversations and correspondence with third persons, are 
 original evidence. But it must be proved by some evidence, 
 independent of the dates appearing on the face of the letters, 
 that they were written by the wife to the husband prior to any 
 suspicion of misconduct on her part.^ 
 
 VIII. OPINIONS AS TO LEGAL QUESTIONS. 
 
 A witness cannot answer a question simply calling for his 
 conclusion as to the law upon the facts stated in the question.' 
 But skilled attorneys of another state may state the law and 
 practice of their courts.* A witness may testify that he never 
 delivered possession of property ; * that he never purchased 
 a,ny goods from the seller ; ^ that services were not performed 
 under the contract.' But a witness cannot state that in car- 
 rying out a law some provision of the constitution may be 
 violated;' nor the construction and interpretation of a foreign 
 statute;' nor that certain persons are joint owners of land;'" 
 nor that a certain person exercised acts of ownership or con- 
 trol over the property." But it>is competent for a witness to 
 
 'St. John V. Missouri P. R Co., 101 ^Sax v. Davia, 81 Iowa, 692. 
 
 Mo. 417. 'Jamison v. Weaver, 81 Iowa, 313. 
 
 2 Ed wards V.Cook, 3 East, 391; Tre- SKeramler v. Durston, 119 N. Y. 
 
 lawney v, Coleman, 1 B. & Aid. 90 ; 569, 30 N. Y. State Rep. 203. 
 
 Wilton V. Webster, 7 C. & P. 198; sjiolson's Bank v. Boardman, 14 
 
 Trelawney v. Coleman, 3 Stark. 191. N. Y. State Rep. 658, 47 Hun, 135 ; Bol- 
 
 = McCanley v. Murphy, 96 Ga. 475 ; linger v. Gallagher, 170 Pa. St. 84 ; 
 
 Goddard v. Garner, 109 Ala, 98. Ford v. St. Louis, K. & N. W. R. Co., 
 
 ♦Chattanooga, RetcR. Co. V.Jack- 63 Mo. App. 133; Laing v. Rigney, 
 
 SOD, 86 Ga. 676; Jackson v. Jackson, 160 U. S. 581. 
 
 82 Md. 17. 10 Howard v. Zimpe! man, 3 Tex. Civ. 
 
 s Wallace v. Nodine, 57 Hun, 239, App. 176. 
 
 32 N. Y. State Rep. 657 ; Gassert v. i' Bunting v. Solz, 84 Cal. 168. 
 Noyes, 18 Mont. 216. 
 
56± EULES OF EVIDENCE. 
 
 state that a defendant in ejectment went into possession and 
 thereafter controlled the land.' And a statement by a witness 
 that a certain person was in possession of land, made in its 
 ordinary sense among laymen, is one of fact and not of a con- 
 clusion of law, in the absence of anything to indicate that such 
 possession was a conflicting one.^ But a witness cannot testify 
 to his ownership of land when such ownership is in issue; ^ nor 
 can he state from whom he purchased ; * nor can a witness in 
 an action for services testify that he performed his part of the 
 contract in full; nor that he had performed all the duties im- 
 posed upon him by the contract of employment.' A witness 
 may state that he is the owner of personal property; that he 
 is in possession of real property." So a witness of the legal 
 profession may state what the law of his own state is, and 
 whether it is statutory or unwritten law.' Experts may testify 
 to the nature or eilect of a foreign unwritten law or usages of 
 another state,* and as to the force of language as varied by 
 local, technical or peculiar usage,' and as to what increases the 
 risk insured against by a policy of insurance.'" But whether a 
 witness took possession of property in his individual capacity 
 or as assignee is a mere conclusion, to which he cannot testify." 
 So the condition of the title to propertj^ sold and to be deliv- 
 ered under a written contract is a conclusion of law to which 
 a witness cannot testify.'^ 
 
 1 Woodstock Iron Co. v. Roberts, 87 Mowry v. Chase, 100 Mass. 79 ; In re 
 Ala. 436. Roberts' Will, 8 Paige, 446 ; Crafts v. 
 
 2 Bryan v. Spivey, 109 N. C. 57. Clark, 38 Iowa, 287 ; Walker v. Forbes, 
 
 3 Benjamin v. Shea, 83 Iowa, 392. 31 Ala. 9 ; Consol. R E. Co. v. Cashow, 
 
 4 Burkholder v. Fonner, 34 Neb. 1. 41 Md. 59 ; Smith v. Bartrara, 11 Ohio 
 
 5 Clark V. Ryan, 93 Ala. 405 ; Fisher St. 690; Barrows v. Downs, 9 R I. 
 v. Munroe, 42 N. Y. State Rep. 118; 446; Hall v. Castello, 48 N. H. 176. 
 Holler V. Apa, 43 id. 529; Reynolds v. 9 Whitney v. Boardman, 118 Mass. 
 Lawtou, id. 578, 63 Hun, 596 ; Coges- 242 ; Astor v. Union Ins. Co., 7 Cowen, 
 hall V. Pittsburgh Roller Mill Co., 48 202 ; United States v. Breed, 1 Sumn. 
 Kan. 480. 159, 167 ; Wilder v. De Cou, 26 Minn. 10. 
 
 « Jackson v. Jackson, 97 Ala. 872; lOCornish v. Farm Building Ins. Co., 
 
 Steed V. Knowles, id. 578. 74 N. Y. 295 ; Martin v. Franklin, 43 
 
 'Riendeau v. Vieu, 50 N. Y. State N. J. L. 46 ; Milwaukee, etc. R R Co. 
 
 Rep. 309 ; Barber v. Hilderbrand, 42 v. Kellogg, 94 U. S. 469, 472. 
 
 Neb. 400. 11 Boyle v. Williams, 48 N. Y. State 
 
 s Dauphin v. United States, 6 Ct. 
 CI. 221 ; Short v. Kingsraill, 7 Q. B, 
 U. C. 3,50; Arnold v. Higgins, 11 Q, 
 B. U. C. 446 ; Enis v. Smith, 14 Hoav. 
 400, 436 ; Dyer v. Smith, 13 Conn. 384 
 
 Rep. 651 ; McCosker v. Banks, 84 Md. 
 292. 
 
 12 Van Winkle v. Crowell. 146 U. & 
 42; Steppe v. National Life & M. 
 Ass'n, 37 S. C. 417. 
 
OPINIONS AND OONCLUSIONS. 505 
 
 Where the ownership of furniture was in issue a party was 
 allowed to say " the furniture was my own." ^ But it is differ- 
 ent where the ownership is the principal fact to be proved. A 
 witness has been allowed to answer the following question: 
 " Did you at any time deliver possession of the boat to the de- 
 fendants or either of them?" ^ So a witness was allowed to 
 state that the defendant went into possession and thereafter 
 controlled the land.'' But a witness cannot testify as to his 
 ownership of land where such ownership is in issue.* 
 
 IX. OPINIONS WHEN FACTS AS TO CONTEAOT. 
 
 It seems that in an action for breach of promise of marriage 
 plaintiff may testify that she became engaged to defendant.' 
 But a witness cannot give her opinion as to whether a contract 
 has been abandoned ; nor can witnesses present at negotiations 
 testify that a contract was made;^ nor can plaintiff testify that 
 he was discharged from service without fault on his part. But 
 a witness has been allowed, after stating what he had done, to 
 state that he had completed the work according to the con- 
 tract ; and it seems that a party may testify whether he acted 
 for defendant or for a partnership of which defendant was a 
 member.' It is said that in an action upon a promissory not_e 
 one of the makers cannot testify whether he signed as prin- 
 cipal or surety;* neither can a witness testify as to what would 
 be a reasonable time for the doing of an act required by con- 
 tract to be done.' Where it is shown that one E. had pro- 
 cured one G. to sign R.'s name to a note, knowing that he had 
 no authority, E. may be allowed to rebut any inference of 
 knowledge by testifying that he supposed at the time of sign- 
 ing that G. had such authority." In an action upon a subscrip- 
 tion paper by the plaintiff, an officer of plaintiff may testify 
 that the debts were contracted by plaintiff on the faith of the 
 
 1 De Wolf V. Williams, 69 N. Y. 621 ; 5 Doggett v. Wallace, 75 Tex. 352. 
 Steiner v. Tranura, 98 Ala. 315. " " New England M. Co. v. Johnson, 
 
 2 Collins V. Manning, 1 N. Y. State 144 Pa. St «1. 
 
 Rep. 204 ; Gasserfc v. Noyes, 18 Mont ' Duryea v. Vosburgli, 138 N. Y. 621, 
 
 216. 52N.Y. State Rep. 154. 
 
 ' Woodstock Iron Co. v. Roberts, 87 » Druley v. Johnson, 31 111. App. 267. 
 
 Ala. 487. 9Sentenne v. Kelley, 59 Hun, 513. 
 
 * Benjamin t. Shea, 83 Iowa, 393. w Turner v. Keller, 66 N. Y. 66. 
 
566 KULES OF EVIUENCK. 
 
 subscription.' So in an action to rescind a contract for fraud, 
 mistake, etc., plaintiff may testify that he believed the alleged 
 statements of the defendant ;2 and where the issue is as to 
 whether defendant employed the plaintiff, or whether several 
 persons acting jointly were the employers, it is competent to 
 ask one of the alleged joint contractors, " On the part and be- 
 half, and for whom, did the defendant do what he did? " ^ But 
 it is error to allow a witness to testify to what person he men- 
 tally gave credit for goods which are alleged to have been sold 
 defendant through an alleged agent.'' So it is error to allow a 
 witness to answer the question, " For whom did you set up that 
 machinery, as you supposed? " ' 
 
 X. PHYSICAL CONDITIONS. 
 
 {a) Non-expert witnesses are competent to testify to the 
 condition and appearance of plaintiff,, in an action for negli- 
 gence, before the accident, and as to his having recovered 
 from former injuries, as such matters are within the range of 
 common observation.' They may also state as to the condi- 
 tion of health or the pain suffered by a person injured, based 
 upon personal observations while in attendance upon such 
 person.'' They may testify as to the physical condition of 
 plaintiff in an action for personal injuries in regard to health 
 and strength.' A woman may state that she knows nothing 
 else which could have caused her illness except the exposure 
 on which her husband's action for damages is based ; ' and a 
 witness may testify as to the permanent character of the in- 
 juries for which he is suing.'" So he may state from his ob- 
 servation the effect that an injury had upon the health of 
 another person so far as it refers to the visible effects of the 
 injury as manifested by physical exertions." So he may tes- 
 
 iRichmondville U. Sem. v. MoDon- ' Shelby v. Clagetfc, 46 Ohio St 549; 
 
 old, 3t N. Y. 379. Heddles v. Chicago & N. W. R Co., 
 
 2 Ely V. Padden, 13 N. Y. State Rep. 77 Wis. 228 ; People v. Gibson, 106 
 
 53; People v. Conroy, 153 N. Y. 258; Cal. 458. 
 
 Worcester Coal Co. v. Utley, 157 Mass. g * Stone v. More, 83 Iowa, 186. 
 
 558. D Pullman Palace Car Co. v. Smith, 
 
 » Sweet V. Tuttle, 14 N. Y. 465. 79 Tex. 468. 
 
 * Betjemann v. Brooks, 39 Hun, 649. w Alabama G. S. R Co. v. Frazier, 
 
 6 Nichols V. Kingston I. O. Co. of 93 Ala. 45. 
 
 L. C, 56 N. Y. 618. "Van Gent t. Chicago, M. & St. 
 
 6 Winter v. Central Iowa R Co., Paul R Co., 80 Iowa, 526. 
 80 Iowa, 443. 
 
OPINIONS AND CONCLUSIONS. 5G7 
 
 I 
 
 tify from his own knowledge as to the length, depth and 
 direction of wounds ; ' or that the injured party's neck " looked 
 like it had been struck with a hot iron, and looked scarred."^ 
 (b) An expert may state as to the probable effects of a 
 known injury and the probable duration of the injurious ef- 
 fects;' and he may state as to the length of time that a per- 
 son suffering from disease may live, although stating that he 
 can only give the probability from the history of other sim- 
 ilar cases.'' He may also state as to what may be the result 
 of a disease in the natural and ordinary course;* or the prob- 
 able future effects of his injuries;* or that the injuries are of 
 a permanent character;' or whether the same are of a class 
 that are necessarily painful;^ or that the limb will not im- 
 prove after the length of time that has elapsed since the 
 injury, and that probably any rheumatic or other trouble 
 will be centered in the injured limb;^ or whether or not the 
 fact that such person had not recovered from an injury at the 
 time of the trial would indicate that the injuries were per- 
 manent. And after making a post-mortem examination of 
 the deceased, who came to his death from a blow, as to the 
 direction from which the blow was delivered ; that in cases 
 of instantaneous death there is an involuntary and immediate 
 rigidity of the muscles which would cause the hand to cling 
 to the pistol, rendering it impossible for the deceased, if he 
 were a suicide, to place the weapon between his legs after 
 the'shooting;'" and as to the probable effect of the continued 
 use of intoxicating drinks in causing suicide; " and that puer- 
 peral mania is a common mania at child-birth. They may 
 
 1 Pittman v. State. 25 Fla. 648. ' Schuler v. Third Ave. R Co., 44 
 
 2 Perry v. State, 87 Ala. 30. N. Y. State Rep. 774; People v. Con- 
 8 Abbott V. Dwinnell, 75 Wis. 514. roy, 153 N. Y. 174. 
 
 4 Alberti v. New York, L. E. & W. 8 Lake Erie & W. R Co. v. Wills, 
 
 R Co., 118 N. Y. 77, 27 N. Y. State 39 111. App. 649. 
 
 Rep. 865 ; Jackson v. Boone, 93 Ga. ^ Ijangworthy t. Green Tp., 88 Mich. 
 
 662; Johnson v. Steam Gauge & L. 207. 
 
 Co, 146 N. Y. 153; Springfield Cons. lO Washburn v. National Accident 
 
 R Co. V. Welsh, 155 111. 511. Ass'n, 59 Hun, 585, 32 N. Y. State 
 
 SMageeT. Troy, 119 N. Y. 640, 16 Rep. 34; Block 'v. Milwaukee St. R. 
 
 N. Y. State Rep. 336. Co., 89 Wis. 371 ; Reynolds v. Niagara 
 
 6 Cunningham v. New York Cen- Falls, 81 Hun, 353 ; Cole v. Fall Brook 
 
 tral & H. R R Co., 49 Fed. Rep. 439 ; Coal Co., 87 Hun, 584. 
 
 Mahar M. New York Central & H. R " Poffinbarger v. Smith, 27 Neb. 788. 
 R Co., 30 App. Div. 161. 
 
568 E0LES OF KVIDENCE. 
 
 State as to whether the autopsy upon the body of the de- 
 ceased was properly made, with the requisite skill and care 
 and in the usual manner in which such things should be done;i 
 and whether one charged with bastardy was incapable, be- 
 cause of his age, of begetting the child;- or as to the cause 
 of death;' and as to the amount of force requisite to drive 
 the instrument with which the killing of a person was done 
 through the part through which it passed;* or whether or 
 not such injuries would be likely to result from the cause al- 
 leged;' or whether an abscess was caused by a bruise and 
 fracture;' or that a miscarriage is traceable to a certain in- 
 jury received by the person suffering it;' or whether preg- 
 nancy would probably result from the first intercourse, where 
 the female had been ravished and the act accomplished against 
 her will;' or that there would have been some hemorrhage at 
 the mouth and nose of the murdered man if the body had 
 been moved ; ' or that the muzzle of a gun must have been 
 higher than the man who was shot ; or as to whether a per- 
 son could have made a certain wound upon himself by a knife 
 held in his hand ; '" that the cicatricle skin which resulted from 
 personal injuries was less serviceable and more likely to re- 
 ceive injury than the natural skin;" or whether or not the 
 pain which the plaintiff testifies he has experienced seemingly 
 in his amputated arm and hand, since amputation, was the 
 necessary consequence of the condition produced by the crush- 
 ing and severance of the arm alleged as neg'ligence ; ^ and 
 whether a cause which it is alleged existed would, in his opin- 
 ion as a medical man, be sufficient to produce the physical con- 
 dition claimed to have resulted from such cause ; " and on an 
 
 1 State V. Moxley, 103 Mo. 374. » Yoiicg v. Johnson, 133 N. T. 236, 
 
 2 Johnson v. Castle, 68 Vt. 453; 33 N. Y. State Rep. 486. 
 
 State V. Lee, 65 Conn. 365; Hardi- 'State v. Merriman, 34 S. C. 16. 
 
 man v. Brown, 162 Mass. 585. l" State v. Bradley, 34 S. C. 136. 
 
 3 Carthous v. State, 78 Wis. 560. » Gulf Coast & S. F. E. Co. v. Hai- 
 
 4 People V. Fish. 125 N. Y. 136, 34 riet, 80 Tex. 73. 
 
 N. Y. State Rep. 849. 12 Kitchenbottom v. Delaware, Lack- 
 
 5 Texas C. R. Co. v. Burnett, 80 Tex. awanna & W. R. Co., 122 N. Y. 91, 33 
 636. N. Y. State Rep. 312. 
 
 sstauter v. Manhattan R. Co., 137 "Griffith v. Utica & M. R. Co., 63 
 
 N. Y. 661, 38 N. Y. State Rep. 163. Hun, 636, 43 N. Y. State Rep. 83.") : 
 
 7 Gibbons v. Phoenix, 39 N. Y. State Lacas v. Detroit City R Co., 93 Micb. 
 
 Rep. 658 ; State v. Ginger, 80 Iowa, 412 ; Pennsylvania R. Co. v. Frund. 4 
 
 574. Ind. App. 469: 
 
OPINIONS AND CONCLUSIONS. 5(59 
 
 issue whether paralysis was caused by a fall upon a defective 
 sidewalk, or from a disease of long standing, an expert may, 
 upon a hypothetical question, give his opinion upon the prox- 
 imate cause of such paralysis;' and a physician's opinion as 
 an expert, as to whether a man accustomed to the handling 
 of morphine could have any conception as to how much a 
 quarter or an eighth of a grain was, is competent on an issue 
 whether an assured committed suicide by taking morphine, or 
 took an overdose by accident in ignorance of the quantity 
 that would produce death;- and a physician may state, in an 
 action for personal injuries, as to what will be the duration of 
 the life of a man of plaintiff's age, according to his knowledge 
 of mortality'- tables.' 
 
 (c) The opinion of a medical expert who has testified to the 
 course of the bullet which killed deceased is inadmissible to 
 show the position- of deceased's body at the time the wound 
 was received;* nor can an expert witness give his conclusion 
 from the history of the case and hypothetical facts that an 
 injury resulted from the fall testified to.' 
 
 {d) The opinion of a medical expert, based upon facts 
 within his own knowledge and observation, as to the nature 
 of the affection from which d party is suffering, and whether 
 it was produced by violence or disease, has long been held to 
 be competent. The cause or effect of a physical injury can 
 ■frequently be proved in no other way than by the opinions 
 of those speciallj'^ qualified by experience and study, based 
 upon facts in evidence and either known to the witness or as- 
 sumed to be true. The cases are numerous which hold that 
 it is competent to show by the opinions of medical experts 
 that an injury received was the cause of the condition of the 
 person injured.'' Thus, a physician may be asked whether 
 the physical condition in which he found a party upon his 
 examination of him could have resulted from the accident 
 complained of, and as to its permanence. The rule estab- 
 
 1 Bowen v. Huntington, 35 W. Va. ♦ Brown v. State, 55 Ark. 593. 
 632 j Hunter v. State, 30 Tex. App. s Jones v. Portland, 88 Mich. 598. 
 314. 6 McClain v. Brooklyn City R. Co., 
 
 2 Mutual Life Ina. Co. v. Tillman, 84 llfi N. Y. 459, 37 N. Y. State Rep. 549 ; 
 Tex. 31. Stauter v. Manhattan R. Co., 137 N. Y. 
 
 3 McCue V. Knoxville, 14S Pa. St. 661, 38 N. Y. State Rep. 163. 
 480. 
 
570 KDLES OF EVIDENCE. 
 
 lished by the cases of Strohm v. N. Y., L. E. & W. K. Co.' 
 and of Tozer v. IsT. Y. C. & H. E. E. Co.^ simply precludes the 
 giving of evidence of future consequences which are contin- 
 gent, speculative and merely possible as the basis of ascertain- 
 ing damages. Those authorities in no wise conflict with the 
 rule allowing evidence of physicians as to a party's present 
 condition of bodily suffering or injuries, of their permanence 
 and as to their cause. Such proof seems to be the best mode 
 and manner of furnishing information for the guidance of the 
 jury in awarding damages. Future consequences which are 
 reasonably to be expected to follow an injury may be given 
 in evidence for the purpose of enhancing the damages to be 
 awarded. But to entitle such apprehended consequences to 
 be considered by the jury they must be such as in the ordi- 
 nary course of nature are reasonably certain to ensue. Con- 
 sequences which are contingent, speculative or merely possible 
 are not proper to be considered in ascertaining the damages. 
 It is not enough that the injuries received may develop into 
 more serious conditions than those which are visible at the 
 time of the injury, nor even that they are likely to so develop. 
 To entitle a plaintiff to recover present damages for appre- 
 hended future consequences, there must be such a degree of 
 probability of their occurring as amounts to a reasonable cer- 
 tainty that they will result from the original injury.^ Thus, 
 a medical expert having knowledge of a case may be asked 
 as to the probability of a part3''s recovery from an injury or 
 disease. It simply relates to the permanence of the injury. 
 There is an obvious difference between an opinion as to the 
 permanence of a disease or injury already existing, and capable 
 of being examined and studied, and one as to the merely pos- 
 sible outbreak of new diseases or sufferings having their cause 
 in the original injury. In the former case the disease or in- 
 jur}' and its symptoms are present and existing, their indi- 
 cations are more or less plain and obvious, and from their 
 severity or slightness a recovery may reasonably be expected 
 or the contrary; while an opinion that some new or different 
 complication will arise is merely a double speculation — one 
 
 1 96 N. Y. 305. 96 N. Y. 305 ; Butler v. Manhattan R 
 
 2 105 N. Y. 6X7, 8 N. Y. State Rep. 56. Co., 52 N. Y. State Rep. 498. 
 3 Strohm v. N. Y., L. E. & W. R Co., 
 
OPINIONS AND CONCLtrSIONS. 571 
 
 that it may possibly occur, and the other that if It does it 
 will be a product of the original injury instead of some other 
 new and perhaps unknown cause. Questions to a medical ex- 
 pert are not inadmissible because they seek the probabilities 
 of a recoverj^ Certainty is impossible. Medicine is very far 
 from being an exact science. At the best its diagnosis is 
 little more than a guess enlightened by experience. The 
 chances of recovery in a given case are more or less affected 
 by unknown causes and unexpected contingencies; and the 
 wisest physicians can do no more than form an opinion based 
 upon a reasonable probabilitj'.' 
 
 (e) Persons familiarly associated and coming in frequent con- 
 tact with another may testify to his state of health, hearing, 
 eyesight and ability to work and walk and use his limbs natu- 
 rally, although not experts.^ 
 
 (/) A plaintiif in an action for personal injuries may testify 
 that he suffered pain and was confined to his bed in conse- 
 quence.' 
 
 (g) While a physician, in an action for personal injuries, may 
 testify to knowledge obtained of plaintiff's condition by pro- 
 fessional examination and inquiries made for the purpose of 
 treating him for the injuries, and may also state the conclu- 
 sions at which he has arrived from knowledge gained by such 
 examination and observation,* a physician who examined a 
 plaintiff, in an action for personal injuries, merely for the pur- 
 pose of being sworn as an expert, cannot give an opinion 
 based upon symptoms learned by questioning the plaintiff and 
 from his declarations and not observable by the physician 
 himself.^ So a physician cannot give his opinion that plaintiff, 
 in an action for personal injuries, is shamming.* The inference 
 of an expert is not admissible as to the existence or non-exist- 
 ence of the fact or facts upon which his opinion is based.' Facts 
 
 1 Griswold v. N. Y. C. & H. R R Co., < Chicago, St L. & P. R Ca v. Spil- 
 115 N. Y. 61, 23 N. Y. State Rep. 729. ker, 134 Ind. 380. 
 
 2 Chicago City R Co. v. Van Vleck, 6 Abbot v. Heath, 84 Wiis. 814. 
 
 143 111. 480 ; Lawson v. Conaway, 37 " Cole v. Lake Shore c& M. S. R Ca, 
 
 W. Va. 159; Price v. Richmond & D. 95 Mich. 77. 
 
 R Co., 38 S. C. 42 ; West Chicago St ^Heald v. Thing, 45 Me. 392 
 
 R Co. V. Canada, 165 111. 496. "Walker v. Rogers, 24 Md. 237, 243 
 
 ■I North Chicago St R Co. v. Cook, Phillips v. Starr et al., 26 Iowa, 349 
 
 145 111. 551. Spear v. Richardson, 37 N. H. 28, 34. 
 
572 KDLES OF EVIDENCE. 
 
 and statements, whether by competent witnesses or by trea- 
 tises of recognized authority in the science, art, calling or the 
 like to which the testimony of an expert relates, which sup- 
 port or are inconsistent with the opinion of such expert, are 
 admissible in evidencer together with the grounds of such opin- 
 ion.i But medical books, even of good authority, cannot be 
 read to the jury.^ 
 
 XI. HANDWRITING. 
 
 § 6. Autograph and holograph. — A document wholly in the 
 handwriting of a party is said to be an autograph or holo- 
 graph.' Where it is in the handwriting of another person and 
 is only signed by the party the signature may be called "ono- 
 mastic;" where it is signed by a cross or a symbol, "sym- 
 bolic." A standard of the general nature of the handwriting 
 of the person may be formed in the mind b}' having, on former 
 occasions, observed the characters traced by him while in»the 
 act of writing, with which standard the handwriting in the 
 disputed document may, by a mental operation, be compared.' 
 A judgment as to the genuineness of the handwriting to a 
 document may be formed by a comparison instituted between 
 it and other documents known or admitted to be in the hand- 
 writing of the party. A party is a competent witness to say 
 whether he believes the handwriting of the disputed document 
 
 1 Brodhead V. Wiltse, 35 Iowa, 429 ; Marshall v. Brown, 50 Mich. 14S; 
 Edit V. Cutter, 137 Mass. 522 ; City of Com. v. Marzynski, 149 Mass. 68 ; 
 Kipou V. Bittel, 30 Wis. 614, 619; Gallagher v. Market R. R. Co., 67 
 Schlencker v. State, 9 Brown (Neb.), Cal. 13 ; Hopt v. Utah, 110 TJ. S. 574. 
 241, 250; McLeary v. Normeut, 84 ^g Benth. Jud. Ev. 459, 460, 461. 
 
 N. C. 235; Stackhouse v. Horton, 15 < Cody v. Conly, 27 Gratt. 313 ; Pear- 
 
 N. J. Eq. 202, 209 ; White v. Bailey, son v. McDaniel, 69 Ga. 100 ; Chaflfee 
 
 10 Mich. 155; Fox v. Peninsular Co., v. Taylor, 3 Allen, 598: Gordon v. 
 
 84 Mich. 076; Bloomingtonv.Schrock, Price, 10 Ired. L. 385; South Ex. Co. 
 
 110 111. 319 ; Tucker v. Donald, 60 Miss. v. Thornton, 41 Miss. 216 ; Reyburn v. 
 
 460 ; Marshall v. Brown. 50 Mich. 148 ; Helotti, 10 Mo. 597 ; Empire Mfg. Co. 
 
 Towboat V. Starrs, 69 Pa. St. 36, 41 : v. Stuart, 46 Mich. 482; Campbell v. 
 
 Slocovich V. Orient Mut. Ins. Co., lOS Iron Co., 83 Ala. 351 ; Fee v. Taylor, 
 
 N. Y. 56 ; Powers v. McKenzie, 90 8.3 Ky. 259 ; Tuttle v. Rainey, 98 N. C. 
 
 Tenn. 167 ; Montana R. R. ,Co. v. War- 513 ; Ulhuan v. Babcock, 63 Tex. 68 ; 
 
 ren, 137 U. S. 348. Pinkham v. Cockell, 77 Mich. 265; 
 
 2 Brown v. Sheppard, 18 Q. B. U. C. Hoxsie v. Empire Co., 41 Minn. 548; 
 178; Fox V. Peninsular Co., 84 Mich. Rogers v. Ritter, 13 Wall. 317; Sill v. 
 676 ; Bloomiugton v. Schrock, 1 10 111. Reese, 47 Cal. 294 ; Willson v. Betts, 4 
 219; Tucker v. Donald, 60 Miss. 400; Deuio, 201. 
 
OPINIONS AND CONCLUSIONS. b I 6 
 
 to be genuine or not.^ Having seen the party write but once,^ 
 no matter how long ago/ or having seen him merely write his 
 signature,* or even only his surname/ is sufficient to render 
 the evidence admissible; the weakness of it is a matter of com- 
 ment for the jury.^' So if the witness states that he saw de- 
 fendant's signature, which defendant admitted to be genuine, 
 he may give his opinion as to the genuineness of defendant's 
 signature to the note in suit." So it seems a witness may ac- 
 quire sufficient knowledge of another's handwriting to enable 
 him to testify in relation thereto from having seen papers pur- 
 porting to have been executed by the person whose writing is 
 in dispute and which he has acknowledged or acquiesced in as 
 being genuine.^ A person who has corresponded with another 
 person is competent to testify as to his handwriting, though 
 he never saw his correspondent.' So a bank-teller who has 
 seen the checks of a person may testify as to his handwriting." 
 So one who states that he knows a person's signature from' 
 seeing it attached to papers known to have been signed by him 
 is a competent witness as to the handwriting of such person. 
 While it is said to^e the general rule that a witness cannot 
 testify as to the signature of another unless his knowledge of 
 the other's handwriting is first shown, '^ it is said that a witness 
 who answered affirmatively a question as to whether he was 
 acquainted with the handwriting of the person whose signature 
 was in dispute, and who was not cross-examined as to such kno vpI- 
 edge, may give his opinion as to the genuineness of the disputed 
 
 1 De la Motte's Case, 21 How. St. Tr. Varian, 54 N. Y. 398 ; Pepper v. Bar- 
 810 ; Eagleton v. Kingston, 8 Ves. 473, nett, 22 Gratt 405 ; Board v. Misen- 
 474; Lewis v. Sapio, 1 M. & M. 39; heimer, 78 111. 22; Burnham v. Ayer, 
 Willman v. Worrall, 8 C. & P. 380; 36 N. H. 182; State v. Gay, 94 N. C. 
 Garrells v. Alexander, 4 Esp. 87. 814 ; Territory v. O'Hare, 1 N. Dak. 
 
 2 Willman v. Worrall, 8 0. & P. 380 ; 30 : Nelms v. State, 91 Ala. 97. 
 
 Ph. & Am. Ev. 692 ; Warren v. Ander- 'Second Nat. Bank v. Wentzel, 151 
 
 son, 8 Scott, 384. Pa. St. 143. 
 
 3 R V. Home Tooke, 25 How. St. Tr. 8 Tucker v. Kellogg, 8 Utah, 11; 
 71, 72 ; Eagleton v. Kingston, 8 Ves. Berg v. Patterson, 49 Minn. 420 ; 
 474 White v. Toliver, 110 Ala. 300. But 
 
 ^Garrells v. Alexander, 4 Esp. 37; see People v. Cory, 148 N. Y. 476. 
 
 Willman v. Worrall, 8 C. & P. 380. 9 Campbell v. Woodstock Iron Co., 
 
 5 Lewis V. Sapio, 1 M. & M. 39; 83 Ala. 351 ; Thalheim v. State, 38 Fla. 
 Powell V. Ford, 2 Stark. 164. 169. 
 
 6 Keith V. Lothrop, 10 Gush. 453; "Salazar v. Taylor, 18 Colo. 538; 
 Hopkins v. Megguire, 35 Me. 78; Seibold v. Rogers, 110 Ala. 438. 
 West V. State, 22 N. J. L. 313 ; Edeleu " Arthur v. Arthur, 38 Kan. 691. 
 
 T. Gough, 8 Gill, 87; Hammond v. 
 
574 EULES OF EVIDENCE. 
 
 signature.! It seems to be the general rule that a person 
 may testify to the handwriting of the person whose signature 
 it is important to prove, from having seen writings purporting 
 to be the handwriting of the party, and having afterwards per- 
 sonally communicated with him respecting them, or acted upon 
 them as his, the party having known and acquiesced in such 
 acts, founded upon their supposed genuineness or by such adop- 
 tion of them into the ordinary business transactions of life as 
 induced a reasonable presumption of their being his writing.^ 
 It seems that where the antiquity of a writing is such that no 
 witness can swear that he has seen the parties write, a witness is 
 competent to prove their signatures who has become familiar 
 with their signature by inspecting their ancient writings bear- 
 ing them, which have been treated and regularly preserved as 
 authentic' While it seems the better rule that a non-expert 
 ought not to be allowed to testify that the signature to a lost 
 deed which he has seen was the same as the signature to an- 
 other deed produced and shown to him,* at least until he has 
 qualified himself to testify as to the handwriting of the person 
 who it is claimed signed it,'' yet it is said th^t a witness is com- 
 petent to give his opinion as to the genuineness of a disputed 
 lost signature which he has seen, based upon comparison of his 
 recollection of it with a signature of the same person in evi- 
 dence and admitted to be genuine.* Where a non-expert is 
 called as a witness to prove the signature to a writing or to 
 prove handwriting generally, it is suflBcient if he states that he 
 knows the handwriting of the person which is sought to be 
 proved, though he is not asked whether he has seen such per- 
 son write. Comparison of hands was anciently held to be of 
 doubtful value and dangerous; ' and the old rule prevailed up 
 to a recent date in many jurisdictions.' 
 
 1 Egan V. Murray, 80 Iowa, 180 ; 6 Hammond v. Wolf, 78 Iowa, 237. 
 
 Tuttle V. Rainey, 98 N. C. 513. 7 i Greenl. Ev., § 581 ; Randolph v. 
 
 ^Robinson Cou. Min. Co. v. Craig, 4 Loughlin, 48 N. Y. 456; Chandler v. 
 
 N. Y. State Rep. 478; Hammond v. Le Barron, 45 Me. 534; Jumpertz v. 
 
 Varian, 54 N. Y. 398; Wimbish v. People, 21 111. 375; Adams v. Field, 
 
 State, 89 Ga. 394 ; Gibson V. Trobridge 21 Vt. 356; Bronner v. Loomis, 14 
 
 F. Co., 93 Ala. 579. Hun, 341 ; Pope v. Asker, 1 Ired. 16; 
 
 'Rogers v. Ritter, 13 Wall. 817; Kinney v. Flynn,2R.I. 819; Hazleton 
 
 Jackson v. Brooks, 8 Wend. 426, 15 v. Union Bank, 33 Wis. 84; Hawkins 
 
 Wend. 111. V. Grimes, 13 B. Hon. 258. 
 
 * Spottiswood V. Weir, 80 Cal. 448. 8 Pope v. Asker, 1 Ired. 16 ; Hay- 
 
 sMugge V. Adams, 76 Tex. 448. cock v. Gruep, 57 Pa. St. 488; Kerwin 
 
OPINIONS AND CONCLUSIONS. 575 
 
 § 7. Comparison. — It is a general rule of the common law 
 that where a paper admitted or clearly proved to be genuine 
 is already in evidence for some other purpose in a cause, and 
 another paper, pertinent to the issue and alleged to be in the 
 same handwriting, is offered in evidence, the jury may com- 
 pare the latter with the former.' And where a writing to be 
 proved is of such antiquity that living witnesses cannot be 
 had, and yet it is not old enough to prove itself, experts may 
 compare it with other documents admitted to be genuine or 
 proved to have been respected, treated and acted upon as such 
 by all parties, and may give their opinion concerning the gen- 
 uineness of the writing in question.^ And when a witness tes- 
 tifies to his opinion of the genuineness of a signature on a 
 paper, it is competent on cross-examination to question him 
 as to his opinion of the genuineness of the same party's sig- 
 nature to other papers which are in evidence.' In most of the 
 states of the Union, statutory provisions have been made that, 
 where the authenticity of the paper is directly the subject- 
 matter of the issue, other papers the signatures to which are 
 shown to be genuine may be introduced in evidence for th© 
 purpose of comparison with the paper in dispute. And a 
 party is not limited to the genuine signatures introduced by 
 his adversary for the purpose of comparison, but may put in 
 evidence other genuine signatures, in order to afford as wide 
 a range for comparison as may be practicable.* To prove the 
 genuineness of standards of comparison it is not necessary to 
 produce a witness who saw them written, but opinion evidence 
 is competent and may be sufBcient.' The genuineness of a 
 paper offered as a standard of comparison is a preliminary 
 
 V. Hill, 37 111. 209 ; State v. Fritz, 33 3 First Nat Bank of HornellsTille 
 
 La. Ann. 55 ; Hanley V. Gaudy, 28 Tex. v. Hyland, 53 Hun, 108, 25 N. Y. 
 
 311 ; Jones v. State, 60 Ind. 241 ; State Rep. 446, 125 N. Y. 711 ; Goza 
 
 Pierce v. Worthey, 14 Wis. 9 ; Hazle- v. Browning, 96 Ga. 421 ; McDonald 
 
 ton V. Union Bank, 32 Wis. 34 ; Her- v. McDonald, 142 Ind. 55 ; State v. 
 
 rick et al. v. Sivonaley, 56 Md. 439, David, 131 Mo. 380 ; Kornegay v. Kor- 
 
 459; Davis v. Fredericks, 3 Mont. 262 ; negay, 117 N. C. 242. 
 
 Randolph v. Loiighlin, 48 N. Y. 456 ; * People v. Cory, 148 N. Y. 476 ; 
 
 Strother v. Lucas, 6 Pet. 763 ; Fournal Clark v. Douglass, 5 App. Div. 547 ; 
 
 V. Duver, 8 Rev. de Leg. 279. Mutual Life Insurance Go. v. Suitor, 
 
 1 Moore v. United States, 91 U. S. 131 N. Y. 557, 42 N. Y. State Rep> 
 270 ; Ellis v. People, 21 How. Pr. 356. 394. ' 
 
 2 1 Greenl. Ev., § 578; Jackson v. speck v. Callaghan, 95 N. Y. 73. 
 Brooks, 8 Wend. 626. 
 
576 ECLES OF EVIDENCE. 
 
 question for the court. Thus, in Hall v. Van Yranken^ it is 
 held that the signature to a deed, the execution of which was 
 acknowledged before a notary and duly certified, may be re- 
 ceived as a standard for comparison without further evidence 
 than the certificate of acknowledgment, although there be no 
 proof of the identity of the party with the signer of the deed 
 except the identity of name. A party who claims that the 
 signature in question in the action is not hers has a right to 
 give in evidence specimens sworn to by her to be her own sig- 
 nature and made before the controversy arose, in order to use 
 them as standards of comparison.^ But it is said that the stand- 
 ards of comparison must be so absolutely established that the 
 jury may be instructed as a matter of law that they are gen- 
 uine.' It is for the court, and not for the jury, to determine 
 whether the genuineness of the standards of comparison has 
 been sufficientlj' proved.* 
 
 In People v. Murphy'' the defendant was charged with 
 arson. On the trial two anonymous letters were introdued 
 in evidence by adducing in evidence a number of specimens 
 of defendant's genuine handwriting and calling expert wit- 
 nesses to show by comparison of the letters with the speci- 
 mens of writing shown to be genuine that the letters were in 
 the defendant's handwriting. On appeal from the judgment 
 in that case the defendant objected that the mode of proof of 
 defendant's handwriting was unauthorized; that it was not a 
 case of disputed writing within the provision of the statute; 
 that the statute was only intended to change the rules of evi- 
 dence formerly in force, where the authenticity of the paper 
 is directly the subject-matter of the issue to be tried, as in 
 the case of the denial of the execution of a note or a deed or 
 a will or any other instrument relied upon as the foundation 
 of an action or defense, and the language of Chief Justice 
 Euger in Peck v. Callaghan^ was quoted, where it is said: 
 " The disputed writing referred to in the statute relates only 
 
 1 28 Hun, 403. And see State v. Noe, 106 ; McKay v. Lasher, 131 N. Y. 477 ; 
 
 119 N. C. 849. Tunstall v. Cobb, 109 N. C. 316; Pow- 
 
 2 Mutual L. Ins. Co. v. Suitor, 131 ers v. McKinzie, 90 Tenn. 167; Eow- 
 
 N. Y. 557. ell v. Fuller, 59 Vt. 688; FuUam v. 
 
 sSankey v. Cook, 83 Iowa, 135; Rose, 181 Pa. St. 138; Geer v. Mis- 
 state v. Thompson, 80 Me. 194. souri L. & M. Co., 134 Mo. 1099. 
 
 * See Dietz v. Fourth Nat. Bank, 69 ^ 135 n, y. 450, 48 N. Y. State Rep. 
 
 Mich. 287 ; Marshall v. Hancock. 80 436. 
 
 Cal. 82 ; Swales v. Grubbs, 126 Ind. « 95 N. Y. 75. 
 
OPINIONS AND OONCLDSIONS. 577 
 
 to the instrument which is the subject of controversy in the 
 action, and the specimens of handwriting admissible there- 
 under are those of the person purporting to have executed 
 the instrument in controversy." In the former case, when 
 the letters were offered in evidence, there was no objection to 
 their reception on the ground that the proof of their genuine- 
 ness was insujfioient ; but they were objected to solely on the 
 ground that the letters themselves were incompetent and im- 
 proper as evidence — an objection which pertains to the sub- 
 ject-matter of the proof offered and not to the method of its 
 presentation or to any of the preliminary steps to be ob- 
 served in its introduction. The main question raised was not 
 passed upon because of the rule that : " Where evidence is not 
 in its essential nature incompetent, all grounds of objection 
 which might be obviated, if they had been specifically stated, 
 will be deemed to have been waived." Upon the cross-exam- 
 ination of expert witnesses, upon the question of comparison 
 of handwriting, the party so cross-examining them, for the 
 purpose of testing the accuracy of their judgment, maj^ sub- 
 mit to them different specimens of handwriting and ask them 
 to compare them with the papers which they have testifi.ed 
 were genuine or spurious, and to say whether, in their opin- 
 ion, they were in the same handwriting. Such an examina- 
 tion serves as an impressive warning to the jury to closely 
 scrutinize the expert evidence, because of the want of concur- 
 rence of judgment on the part of the witnesses, when they 
 are required to compare the documents sworn to by them 
 with specimens of whose authorship they are ignorant; and 
 to that extent such a cross-examination is valuable and proper. 
 But the party cross-examining cannot go farther and litigate 
 the immaterial issue of the authenticity of the additional 
 specimens submitted by him for such a purpose. He cannot 
 prove that the specimens so presented by him for comparison 
 were not in the handwriting of the party whom the experts 
 testify the specimens were written by. It is a collateral mat- 
 ter, and a party cross-examining is bound by the replies of 
 the witnesses to the questions put.' If it were allowed it 
 would give rise to a multiplicity of collateral issues which 
 might render the litigation interminable. 
 
 1 Hilsley v. Palmer, 33 Hun, 473. 
 37 
 
578 EULES OF EVIDENCE. 
 
 Where there is a question as to the person by whom any 
 document is written or signed, the opinion of any person ac- 
 quainted with the handwriting of the supposed writer that it 
 was or was not written or signed by him is competent and is 
 deemed to be a relevant fact. A person is deemed to be ac- 
 quainted with the handwriting of another person when he 
 has seen that person write, or when he has received docu- 
 ments purporting to be written by that person in answer to 
 documents written by himself or under his authority and ad- 
 dressed to that person, or when, in the ordinary course of 
 business, documents purporting to be written by that person 
 have been habitually submitted to him.' 
 
 The general rule is that a party, the genuineness of whose 
 signature is in dispute, cannot write his name in the presence 
 of the court and jury and then give it in evidence in his own 
 behalf for the jury to institute a comparison between it and 
 the one in question. The party so situated would be under a 
 great temptation to produce a signature in appearance alto- 
 gether dissimilar to the one sought to be sustained by the ad- 
 verse party as genuine.^ But in Chandler v. Le Barron' it 
 was held that a writing made in the presence of court and 
 jury, by the party whose signature is in dispute, may be sub- 
 mitted to the jury for the purpose of comparison. So in Doe 
 V. "Wilson* the court say: "Their lordships have no doubt 
 that if, on trial at nisi prius, the witness denies the signature 
 to a document produced in evidence, and, upon being desired 
 to write his name, has done so in open court, such writing 
 might be treated as evidence in the case and be submitted to 
 a jury, who may compare it with the alleged signature to the 
 document." So in Bronner v. Loomis' and People v. DeKrol't* 
 the defendant, who interposed the defense of forgery upon her 
 cross-examination, at the request of the plaintiff wrote her 
 name on a slip of paper, which was received in evidence on 
 the plaintiff's offer and over the defendant's objection, and it 
 was held to be competent evidence. It was held to be com- 
 
 • Johnson v. Daverne, 19 Johns. ^'King v. Donohue, 110 Mass. 155. 
 
 134; Rogers v. Eitter, 13 Wall. 317; MS Me. 534 
 
 Doe V. Sackermore, 5 A. & E. 705, < 10 Moore Priv. Coun. Cas. 508. 
 
 730, 789 ; Reg. v. Home Tooke, 25 » 14 Hun, 341. 
 
 St. Tr. 71 ; Stephen's Dig. Law of e 49 Hun, 71 j 17 N. Y. State Rep. 
 
 Ev., art 5L _ 208. 
 
OPINIONS AND CONCLUSIONS. 579 
 
 petent on the question of the witness' veracity. The testi- 
 mony of an expert is admissible to show whether a certain 
 paper is dated " Jany." or "July;" whether a note has been 
 altered from "eight" to "eighty;"' whether a figure is a "4" 
 or " 2," etc. If such comparison may be made by unskilled 
 jurymen, why should they not be aided and enlightened, as 
 they may be in analogous cases of the genuineness of hand- 
 writing, alterations and simulations, by men who have made 
 the subject of handwriting a study and have obtained skill and 
 proficiency in that branch of knowledge ? If we analyze the 
 practical processes which have to be gone through with in 
 order to elicit and apply this kind of evidence, whether from 
 expert or lay witnesses, we shall find that the witness is re- 
 quired to examine and determine what the letters and charac- 
 ters, or even hieroglyphics, are, and what word they form in 
 combination.^ So the rule may be regarded as well settled 
 that the meaning of characters, marks, letters, figures, words 
 or phrases used in contracts having a purely local or technical 
 meaning, unintelligible to persons unacquainted with the busi- 
 ness, may be given and explained by parol evidence, if the ex- 
 plaDation is consistent with the terms of the contract.' And 
 the rule that excludes oral testimony to contradict or vary the 
 terms of a written instrument is directed against evidence that 
 would add other words to it, or substitute other words in its 
 stead, and does not apply where there is any uncertainty as 
 to the object or extent of the engagement of the parties, or 
 where the meaning of the terms employed is technical. Verbal 
 testimony must be resorted to to ascertain the nature of the 
 subject to which an instrument refers. Thus, when a contract 
 simply provides that the contractor shall furnish all materials 
 and labor for plumbing and gas-fitting, evidence of experts as 
 to whether the furnishing and setting up of ranges was in- 
 cluded in it is admissible, and evidence that it was distinctly 
 agreed that the contractor was not to furnish the ranges is 
 admissible.'' 
 
 5 Rasa V. Sebastian, 160 111. 603. ' Atkinson v. Truesdall, 137 N. Y. 
 
 2 Sheldon v. Benharn, 4 Hill, 139; 330. 
 Armstrong v. Burrows, 6 Watts, 366 ; * Cassidy v. Fonthara, 38 N. Y. State 
 
 Vinton v. Peck, 14 Mich. 387; Stone Eep. 177; Eass v. Sebastian, 160 111. 
 
 V. Hubbard, 61 Mass. 595; Dresler v. 603; Kendall v. Collier, 97 Ky. 446; 
 
 Hard et al., 137 N. Y. 335, 38 N. Y. Hendrix v. Gillett, 6 Colo. App. 137. 
 State Eep. 147. 
 
580 ECLES OF EVIDENCE. 
 
 Experts who have never seen the party write are not lim- 
 ited in their statements to the characteristics of the several 
 writings, their resemblance or dissimilarity, but may be per- 
 mitted to state vrhether the disputed signature was genuine 
 or not.i A writing introduced in evidence for the purpose of 
 comparison need not be proved by direct evidence, but may 
 be proved like any other writing.^ Upon the examination of 
 an expert in handwriting as to the genuineness of a disputed 
 signature, it is proper to permit him to illustrate upon a black- 
 board the differences between the disputed and genuine signa- 
 tures and to explain the characteristics of the handwriting.' 
 An expert may state whether, in his opinion, the disputed sig- 
 nature is simulated.'' He cannot be asked directly as to the 
 genuineness of the signature in issue.^ An expert may be 
 asked what evidence, if any, he found in the signatures in ques- 
 tion as to their being simulated imitations instead of genuine 
 signatures.^ So, where a material v7ord in writing is obscure, 
 expert opinion is proper as to what such word is, based on a 
 comparison of such instrument with the other exhibits in the 
 case in the handwriting of the same person.' An expert can- 
 not testify as to the genuineness of a disputed signature from 
 comparing with it merely photographic copies of genuine sig- 
 natures ; but the originals to be compared should be before 
 him.* Where the genuineness of a signature is in controversy 
 the party whose signature it purports to be may, when testi- 
 fying in his own behalf, be asked by the adverse party to sign 
 his name in the presence of the court and jury ; and a signa- 
 ture thus made may be put in evidence by such adverse party 
 for the purpose of comparing it with the signature in question.' 
 But it seems that it would not be error to refuse to compel a 
 witness to so write.^" Knowledge of his decedent's signature. 
 
 ' Peck V. Callaghan, 95 N. Y. 73 
 Sudlaw V. Warshing, 108 N. Y. 520 
 Miles V. Loomis, 75 N. Y. 388; Had- 
 cock V. O'Rourke, ■ 137 N. Y. 681 
 Reg. V. Silverlock (1894), 3 Q. B. 766 
 
 * Miles V. Loomis, 75 N. Y. 288. 
 8 People V. Severance, 67 Hun, 183 ; 
 Fee V. Taylor, 83 Ky. 259. 
 6 Sudlaw V. Warshing, 108 N. Y. 530. 
 ' Dresler v. Hard, 137 N. Y. 235. 
 
 Mitmire v. Montgomery, 165 Pa. St ^Hynes v. McDermott, 83 N. Y. 41; 
 
 253 ; Birmingham Nat. Bank V. Brad- Buzard v. McAnulty, 77 Tex. 438; 
 
 ley, 108 Ala. 415. Crane v. Dexter, 5 Wash. 479. 
 
 2 McKay v. Lasher, 131 N. Y. 477, » Bronner v. Loomis, 14 Hun, 341, 
 19 N. Y. State Rep. 815. lo Williams v. Riches, 77 Wis. 569; 
 
 3 Dyer v. Brown, 33 N. Y. State Allen v. Gardner, 44 Kan. 337. 
 Rep. 695, 53 Hun, 321. 
 
OPINIONS AND CONCLUSIONS. 581 
 
 gained by an administrator by examination of checks, notes 
 and papers found among the former's papers, qualifies him to 
 testify whether the signature in suit is that of the decedent.' 
 § 8. Cross-examination on other writings. — It is said in 
 some jurisdictions that, to test the skill of an expert as to hand- 
 writing on cross-examination, writings or parts of writings, no 
 matter by whom written, may be exhibited to him for com- 
 parison with the handwriting in question. In other jurisdic- 
 tions this rule is limited to documents in evidence.^ But it 
 seems to be the general rule that if an expert, after testifying to 
 the handwriting of a paper upon the strength of standards of 
 comparison written by the alleged writer of the disputed writ- 
 ing, is shown upon cross-examination other writings, and asked 
 if they are by the same writer, his answer that they are con- 
 cludes the cross-examiner, and evidence that they were written 
 by a third party is not competent.' Thus, in People v. Mur- 
 phy * the court say : " Upon the cross-examination of the expert 
 witnesses for the prosecution, the defendant, for the purpose 
 of testing the accuracy of their judgment, submitted to them 
 nine different specimens of handwriting, and each was asked 
 to compare them with the letters and specimens put in evi- 
 dence by the people, and to say whether in his opinion they 
 were in the same handwriting. Each gave a different answer, 
 and, with two exceptions, each testified that some of the speci- 
 mens were written by the same person who wrote the letters 
 and the other specimens ; but no two witnesses agreed as to 
 the particular specimens which were so written. ... It 
 was collateral matter, properly used for the purpose of a cross- 
 examination, and the defendant was bound by the replies of 
 . the witnesses to his questions put. It served as an impressive 
 warning to the jury to closely scrutinize the expert evidence, 
 because of the want of concurrence of judgment on the part of 
 the witnesses when they were required to compare the letters 
 with specimens of whose authorship they were ignorant ; and, 
 to that extent, the cross-examination was valuable and proper, 
 
 1 Tucker v. Kellogg, 8 Utah, 11; Miller, 73 Mich. 265; Travellers' lus. 
 Berg T. Peterson, 49 Minn. 430 ; Mai- Co. v. Sheppard, 85 Ga. 751, 
 
 lory V. Ohio Farmers' Ins. Co., 90 SRose v. First National Bank, 91 
 
 Mich. 112. Mo. 399. 
 
 2 First National Bank v. Hyland, 53 < 135 N. Y. 450. 
 Hun, 108; Johnson Harvester Co. v. 
 
582 EULES OF EVIDENCE. 
 
 although it must rest somewhat in the sound discretion of the 
 court to determine how far it shall be carried." 
 
 XII. APPEAEANCE, IDENTIT?, AGE, QUALITT. 
 
 (1) Any person may testify, from what he saw, his opinion 
 that a person was intoxicated and how far he was affected by 
 the intoxication.^ Any intelligent witness, having knowledge 
 of an injured person's appearance immediately after the acci- 
 dent, is competent to testify in that regard;^ and a witness 
 may give his opinion that a depression in a bed which he had 
 seen and examined was made by a person's head.' So a wit- 
 ness may give his opinion that a large stain seen by him upon 
 bed-clothing was the stain left by a pool of blood ; and that 
 blood seen by him upon the coat of one indicted for robbery 
 shortly after the. crime was fresh.* So an expert witness may 
 testify whether ice lying on or near a railroad track appeared 
 to have been struck by an engine or cars.^ So a witness may 
 state that " there were defects in " a sidewalk.* 
 
 (2) An experienced civil engineer may testify as an expert 
 that stakes, each having a nail in the top, found near his sur- 
 vey line, are surveyors' stakes.' 
 
 (3) Testimony as to whether the light at an elevator opening 
 was sufficient to enable it to be readily seen, given by persons 
 who have tested it under the same conditions as when the 
 accident happened, was allowed in Snyder v. Witner;' and in 
 St. Louis, A. & T. E. Co. v. Johnson,' opinions of experts were 
 admitted to establish the readiness with which sand could have 
 been seen on a railroad track at a point where a train was de- 
 railed, and the chances of stopping a train after the sand had 
 been seen. In Chicago & A. R. Co. v. Legg'" a witness was 
 allowed to state that in his judgment, from the appearance of 
 the tracks and the indications he saw, animals killed by a 
 
 1 People V. McLean, 59 Hun, 636, 37 'State v. Welch, 36 W. Va. 690. 
 
 N. Y. State Eep. 628 ; People v. Thiele, * People v. Loui Tong, 90 Cal. 377. 
 
 11 Utah, 241 ; Turner v. Eidgway Tp., sgcagle t. Chicago, M. & St. Paul 
 
 105 Mich. 409 ; James v. State, 104 R Co., 83 lowa, 380. 
 
 Ala. 20; Telska v. N. Y. 0. & H. R. 6 Elkhart v. Witman, 123 Ind. 538. 
 
 R Co., 153 N. Y. 339. 7 McGinnis v. Hamilton, 58 Conn. 69. 
 
 2 James v. Ford, 30 N. Y. State Eep. 8 83 Iowa, 653. 
 667, 16 Daly, 136 ; White v. Van Horn, » 78 Tex. 536. 
 159 U. S. 48. 10 33 111. App. 218. 
 
OPINIONS AND CONCLUSIONS. 583 
 
 railway were running at a given point. In 'Williams v. State ^ 
 a witness, after stating the facts, was allowed to state his con- 
 clusions of the appearance and acts of one accused of crime. 
 
 (4) Testimony of witnesses as to their impressions or opin- 
 ions as to the appearance or expression of countenance of one 
 accused of murder just after the affray is admissible.^ So is 
 evidence of the appearance of deceased at the time of the injury 
 causing death in respect to intoxication and his ability to take 
 care of himself.' So a witness familiar with shot-euns and 
 Winchesters may state that a human body was in an advanced 
 state of decomposition, and that wounds thereon had the ap- 
 pearance of being made with a shot-gun and a bullet from a 
 Winchester rifle.* 
 
 (5) A witness may state that a photograph is a correct rep- 
 resentation of a railroad crossing.' A non-expert cannot give 
 his opinion on the question of age;^ but in a prosecution for 
 selling liquor to minors, testimony of a witness as to the efl'ect 
 their physical appearance produced on the mind of the witness 
 as to the ages of the minors is competent.'' Evidence that 
 when defendant under indictment for homicide was carried 
 into the presence of a wounded man after the arrest the 
 latter identified him as the one by whom he was shot is ad- 
 missible under the rule that, when the opinion of the witness 
 is the mere short-hand rendering of the facts, such opinion 
 can be given, subject to cross-examination as to the facts on 
 which it is based.' So the opinions of witnesses are competent 
 to show that hair found on a fence was from a horse which 
 defendant, charged with robbery, was seen riding on the night 
 of the crime,^ and that witness examined the foot-prints around 
 the place of the crime, and the defendant's boots, and that the 
 tracks corresponded with the said boots.^" But a witness can- 
 
 1 16 S. W. Rep. (Ark.) 816. v. Sheppard, 85 Ga. 751 ; State v. Col- 
 
 2 State V. Buckler, 103 Mo. 303 ; State lins, 115 N. C. 716 ; Byers v. Wallace, 
 
 V. Brown, 28 Oreg. 147; State v. 87 Tex. 503; State v. Kaiser, 124 Mo. 
 
 David, 131 Mo. 380; Meller v. State, 651; Jackson v. State, 60 Ark. 308; 
 
 107 Ala. 40, 3 Fed. & St. Crjm. Eep. State v. Kiger, 115 N. C. 746 ; Rives v, 
 
 334; Burton v. State, 107 Ala 109. Lamar, 94 Ga. 186. 
 
 8 Cook V. Standard L. & Ace. Ins. 6 Morton v. State, 90 Ala. 602. 
 
 Co., 84 Mich. 12. 'Graham v. State, 28 Tex. App. 561. 
 
 * Morris v. State, 30 Tex. App. 95. SFulcher v. State, 28 Tex. App. 465. 
 
 'Miller v. Louisville, N. A. etc. R. ^Crumes v. State, 28 Tex. App. 516. 
 
 Co., 138 Ind. 97 ; Travellers' Ins. Co. 1» Clark v. State, 28 Tex. App. 189. 
 
58i EULES OF EVIDENCE. 
 
 not testify that, in his opinion, certain tracks were made by 
 defendant, as it is for the jury to determine from the facts 
 whether they were or not.^ So a witness cannot state as to 
 whether a written instrument had been executed at a recent 
 or remote time, when based only on the appearance of the in- 
 strument;^ nor that a cartridge had marks on it indicating 
 that it had been in the chambers of a pistol.' Evidence that 
 a person is commonly known by the name by which he is 
 called in a suit is competent on the question of variance.* So 
 any fact or circumstance is admissible in evidence to identify 
 a defendant notwithstanding its remoteness.' It may be shown 
 that a pair of drawers worn by defendant when arrested is 
 similar to one of two pairs of a particular make and pattern 
 which were in a box, and one of which was stolen and the 
 other left at the time of a burglary of which the defendant is 
 charged ; and a witness in whose possession one of the stolen 
 articles was found may describe the man of whom she pur- 
 chased it, and state what he said to her at that time, where the 
 prosecution claims that the seller and the accused are one.^ 
 Dates of book entries not relating to the suit may be testified 
 to by a witness who made them for the purpose of fixing the 
 dates of entries relating to the suit by their relative positions.'' 
 
 XIII. LOCATION, LANGUAGE. 
 
 A surveyor cannot state as an opinion whether or not a cer- 
 tain boundary was located by a previous government survey 
 before the land was surveyed by himself.' But he may state 
 that a corner founfi by him in a survey of lands in dispute 
 corresponded with other corners on the ground that were 
 called for.^ A surveyor cannot be allowed to fix private rights 
 or lines by any theory of his own ; but before his evidence can 
 be received it must be connected with the starting points and 
 other places or lines called for by the grants under which the 
 parties claim ; "• and a surveyor's testimony, as a man of science, 
 
 » Riley v. State, 88 Ala. 193. « Ryan v. State, 83 Wis. 486. 
 
 2 Williams v. Clark, 47 Minn. 53. 'Continental Ins. Co. v. Insurance 
 
 3 People V. Mitchell, 94 Cal. 550. Co. of Pa,, 51 Fed. Rep. 884. 
 
 « Com. V. Gould, 158 Mass. 499. « Burt v. Bush, 83 Mich. 506. 
 
 5 Skate V. Chambers, 45 La. Ann. 86 ; 9 Boydston v. Sumpter, 78 Tex. 402. 
 People V. Beach, 93 Mich. 25. "Jones v. Lee, 77 Mich. 85. 
 
OPINIONS AND CONCLUSIONS. 585 
 
 is never receivable except in connection with the data from 
 which he surveys ; and lines run by hina are of no value unless 
 the data are distinctly established from vrhich they are run. 
 A witness with special means of knowledge may testify that 
 the letters E. L. D., in a record of special internal revenue 
 taxes, stand for " retail liquor dealer." ' So he may state what 
 the words " 'New York Harbor " in a marine policy indicate to 
 an insurer where the terms of the policj'^ leave that in doubt.^ 
 So a person who has qualified himself as an expert in the 
 transactions of policy players may testify as to the meaning 
 of the term " hit list " found on policy papers.' So owners 
 and masters of ships may testify to the usage and meaning, in 
 a commercial sense, of clauses of a marine insurance policy re- 
 lating to the course of the vessel insured.* So evidence is 
 admissible to show what meaning apparently ambiguous words 
 and figures on tobacco tags conveyed to the trade.' So ex- 
 perts may state whether the term " mason-work " in a contract 
 includes the laying of inlet, suction and drain pipes." So in an 
 action for libel for publishing an article in which the name was 
 misspelled, but as spelled was very similar in sound to that of 
 the plaintiff, the testimony of persons who read the article is 
 admissible to show that they understood it to mean the 
 plaintifiE.' 
 
 XIV. MISOBLLANEOUS. 
 
 Expert testimony is admissible as to the breeding and pedi- 
 gree of horses.^ A party may state that one who hired and 
 discharged him was "boss " and that another was the superin- 
 tendent.' Experts may state whether ranges are material for 
 plumbing where the contract in question is silent on the sub- 
 ject.J" A grantor may state that the grantee was to pay the 
 
 1 state V. O'Connell, 82 Me. 30. Highton v. Dessau, 139 N. Y. 607, 46 
 
 2Petrie v. Phoenix Ins. Co., 133 N. N. Y. State Rep. 933. 
 
 Y. 137, 82 N. Y. State Rep. 965. ' Farrand v. Aldrich, 85 Mich. 593. 
 
 . '^ United States v. King (D. O.), 20 8 Fleming v. McClaffin, 1 Ind. App. 
 
 Wash. L. R. 507. 537. 
 
 < Gerow v. Providence-Wash. Ins. ' Applebee v. Albany Brew. Co., 58 
 
 Co., 38 N. Y. 435. Hun, 605, 34 N. Y. State Rep. 671. 
 
 " Conestoga Cigar Co. v. Finke, 144 i" Dixon-Woods Co, v. Phillips Glass 
 
 Pa. St 159. Co., 169 Pa. St. 167 ; Groetzinger v. 
 
 « Elgin y. Joslyn, 36 111. App. 301; Kaun, 165 id. 578; United States & 
 
bS'o BFLES OF EVIDENCE. 
 
 full value of the land by canceling and assuming certain debts, 
 specifying them.^ A witness, after testifying that he did not 
 hear a whistle or bell upon a locomotive, may also testify that 
 there was nothing to prevent his hearing them.^ But he can- 
 not testify that he could have heard a signal if it had been 
 given.' An expert may testify as to a defect in a particular 
 elevator,^ or whether certain described phenomena were indic- 
 ative of an "explosion" in the ordinary meaning of the term.' 
 Any witness may state that certain persons were in the habit 
 of getting drunk.^ "Whether gates, flaps or other appliances 
 can be used to prevent influx of water from a drain into a cel- 
 lar, and if so, whether they will work satisfactorily and it will 
 be easy or difiBcult to put them in, are matters for experts.' 
 In Carter v. Carter ^ the witness was allowed to testify that 
 from sounds and words heard by him from an adjoining room 
 in a hotel he was of the opinion that an act of adultery was 
 committed in such room. An employee in an action against 
 a railroad company for injuries may testify as to his duties, 
 though they may be prescribed by the company.' A witness 
 cannot testify what would have been the result of a railroad 
 ticket extended in a certain manner as to time ; ^^ nor as to 
 what he would have done if he had known that the movement 
 by which he was injured was going to occur ;'^ nor as to what 
 would be the best use of premises in the absence of a railroad 
 and what its best available use in its present situation ; '^ nor 
 can a surveyor state whether a survey was actually located on 
 the ground or was an " oflBce survey," that being a question 
 for the determination of the jury from all the facts in evidence." 
 
 R. Co. V. Providence S. & G. Pipe Co., « Gallagher v. People, 29 111. App. 
 
 18 U. S. App. 603 ; Cassidy v. Fon- 401 ; State v. Main, 69 Conn. 12a 
 
 tham, 38 N. Y. State Rep. 177. ? Stead v. Worcester, 150 Mass. 341< 
 
 1 McCormiclj v. Smith, 137 Ind. 330. 8 37 m. App. 209. 
 
 2 Ensley R. Co. v. Chewing, 93 Ala. » Wabash W. R. Co. v. Morgan, 132 
 34. Ind. 430. 
 
 3 Eskridge v. Cincinnati, N. O. & T. w Spellman v. Richmond & D. R 
 P. R. Co., 43 Am. & Eng. R Cas. 176 ; Co., 35 S. C. 475 ; Rapids v. Bennett, 
 Ouillette v. Overman Wheel Co., 163 106 Mich. 538. 
 
 Mass. 305. n Rutledge v. Missouri Pac. R. Co., 
 
 * Bier V. Standard Mfg. Co., 130 Pa. 110 Mo. 313. 
 
 St. 446. 12 Gray v. Manhattan R. Co., 128 N. 
 
 6 St. Louis Gas Light Co. v. Amer- Y. 499, 40 N. Y. State Rep. 478. 
 
 ican Fire Ins, Co., 33 Mo. App. 348. " Reast v. Donald, 84 Tex. 648. 
 
OPINIONS AND CONCLUSIONS. 587 
 
 XV. OPINIONS OF NON-EXPEETS. 
 
 A non-expert witness may state whether or not a bust is 
 a good likeness of a person with whom he is well acquainted.' 
 Such witnesses may be asked whether a party " appeared to 
 be mad or in fun." ^ They may also state that a person ac- 
 cused of a crime appeared worried,' or intoxicated, and after 
 describing the appearance of a person may give their opinion 
 as to his age.^ "Witnesses cannot state their opinions that 
 tracks seen in one place were the same and made bj' the same 
 persons as others which they saw elsewhere, or that the track 
 or impression made by a shoe taken from defendant's foot was 
 the same as other tracks made and seen several days previous 
 near a certain place.^ It seems that the familiar associates of 
 a person may testify as to his general good health and sound- 
 ness of constitution, or his good or bad sight, or as to his ap- 
 pearance and condition, and as to whether he had recovered 
 from former injuries." Such witness may testify that the per- 
 son's physical condition was one of feebleness and inability to 
 do hard work,' or that the person appears to be sick or well.' 
 In short, a statement of opinion is necessarily involved in a 
 statement of fact.' Thus, where the phenomena are too numer- 
 ous or intangible to permit of correct or effective individual 
 statement, witnesses are permitted to state simply the im- 
 pression such phenomena produced in their minds. This, ap- 
 parently, is simply another method of stating facts.^" A wit- 
 ness can testify as to whether a person appeared to be insane," 
 
 1 Schwartz v. Wood, 67 Hun, 648, 133 ; Cavendish v. Tioy, 41 Vt 99 ; Par- 
 
 51 N. Y. State Rep. 4 ; West Chicago sons v. Lindsay, 26 Kan. 426 ; Walker 
 
 St. E. Co. V. Kennedy, Cahill, 165 III. v. State, 63 Ala. 393; Schlencker v. 
 
 496. State, 9 Brown (Neb.), 241 ; Sydleman 
 
 estate V. Edwards, 112 N. C. 901. v. Beck with, 43 Conn. 9, 11 ; Graham 
 
 3 State V. Bradley, 64 Vt. 466. t. Pennsylvania Co., 139 Pa. St. 149 ; 
 
 ' State V. Douglass, 48 Mo. App. 39. Jones v. Fuller, 19 S. C. 66 ; Powers 
 
 » Hodge v. State, 98 Ala. 10. v. State, 23 Tex. App. 42. 
 
 6 Winter v. Central Iowa R. Co., 80 " Hardy v. Merrill, 56 N. H. 227; 
 
 Iowa, 443 ; Chattanooga, etc. R. Co. State v. Potts, 100 N. G. 457 ; Territory 
 
 V. Huggins, 89 Ga. 494 ; Rowles v. v. Roberts, 9 Mont. 13 ; Carpenter v. 
 
 American Mut L. Ins. Co., 27 N. Y. Hatch, 64 N. Hi 573 ; Dewitt v. Ba'r- 
 
 382. ley, 17 N. Y. 340; Dunham's Appeal, 
 
 'Stone V. Moore, 83 Iowa, 186; 27 Conn. 193, 198; Pidcock v. Potter, 
 
 Shilby V. Clagett, 46 Ohio St. 549. 68 Pa. St. 843 ; Up,stone v. People, 109 
 
 'Higbie v. Guardian MuL L. Ins. 111. 169; McConnell v. Woldes, 153 
 
 Co., 53 N. Y. 603. Mass. 487 ; State v. Williamson, 106 
 
 > 1 Whart. Ev., § 15. Mo. 162 ; State v. Lewis, 20 Nev. 333 ; 
 
 m Com. V. Sturtivant, 117 Mass. 123, Wise v. Foote, 81 Ky. 10; Scalf v. 
 
588 
 
 EDLE3 OF ETZDENCE. 
 
 or well or ill ; ' or appeared to be hostile, friendly or the like ; * 
 or appeared to feel sad ; ' or was intoxicated.* He can state 
 as to who "controlled the land; "^ or that a person appeared 
 rational,' or looked " excited " ' or " scared." ^ A witness can 
 testify that certain things were done "in a pleasant manner;'" 
 that he recognized a walk.i" Thus, witnesses may be examined 
 as to the facts observed by them." It is no satisfaction for a 
 witness to say that he thinks or persuadeth himself, and this 
 for two reasons : first, because the judge is to give an absolute 
 sentence, and for this ought to have a more sure guide than 
 thinking; secondly,, the witness cannot be sued for perjury.'^ 
 Eut there can be no doubt that the words may be explained 
 by by-standers to import something very different from their 
 obvious meaning. The by-standers may perceive that what is 
 uttered is uttered in an ironical sense, and therefore that it 
 may mean directly the reverse of what it professes to mean. 
 Something may have previously passed which gives a peculiar 
 character and meaning to some expression; and some word 
 which ordinarily or popularly is used in one sense may, from 
 something that has gone before, be restricted and confined to 
 
 Collin Co., 80 Tex. 514 ; Westmore v. 
 Sheffield, 56 Vt. 239; Fishburne v. 
 Ferguson, 84 Va, 87 ; Johnson v. Cul- 
 ver, 116 Ind. 278; Paine v. Aldrich, 
 133 N. Y. 544; Rutherford v. Morris, 
 77 111. 397 ; Williams v. Lee, 47 Md. 
 831 ; Garrison v. Blanton, 48 Tex. 399 ; 
 Estate of Brooks, 54 Cal. 471 ; Waters 
 V. Waters, 35 Md. 531, 541 ; Cowles v. 
 Merchants, 140 Mass. 377 ; Pelamour- 
 ges V. Clark, 9 Iowa, 1, 13 ; Com. v. 
 Brayman, 186 Mass. 438; Doe v. Rea- 
 gan, 5 Blackf. 317 ; Wyman v. Gould, 
 47 Me. 159. 
 
 1 Parker v. Steamboat Co., 109 Mass. 
 449 ; Sloan v. N. Y. Central R R. Co., 
 45 N. Y. 125. 
 
 2 Polk V. State, 63 Ala. 337 ; State v. 
 Buchler, 103 Mo. 303 ; State v. James, 
 31 S. C. 318. 
 
 'Culver V. Dwight, 6 Gray, 444; 
 McAdory v. State, 59 Ala. 93. 
 
 * People V. Eastwood, 14 N. y. 562 ; 
 State V. Pike, 49 N. H. 399 ; Pierce v. 
 State, 53 Ga. 365 ; Aurora v. Hillman, 
 90 111. 61 ; Castner v. Siiker, 33 N. J. 
 L. 95; People v. Monteith, 73 Cal. 7; 
 
 Dillard v. State, 58 Miss. 368 ; State v. 
 Huxford, 47 Iowa, 16. 
 
 5 Woodstock Iron Co. v. Roberts, 87 
 Ala. 436 ; People v. Deacons, 109 N. Y. 
 374 
 
 6 People V. Lavelle, 71 Cal. 351 ; Peo- 
 ple V. Packenham, 115 N. Y. 300; 
 Smalley v. Appleton, 70 Wis. 340: 
 Com. V. O'Brien, 134 Mass. 198; Eis- 
 ner V. Lodge, 98 Mo. 640. 
 
 ' State V. Houston, 78 Ala. 576. 
 
 8 State V. Ramsey, 82 Mo. 133 ; Craig 
 V. Gerrish, 58 N. H. 513. 
 
 9 Alabama R. R. Co. v. Frazier, 93 
 Ala. 45; Peck v. Small, 35 Minn. 465; 
 Hushby v. State, 77 Ala. 66. 
 
 "Beale v. Posey, 73 Ala. 333; Eddy 
 V. Gray, 4 Allen, 435 ; Jones v. Jones, 
 45 Md. 144; Keniston v. Rowe, 16 
 Me. 38. 
 
 n Bricker v. Lightner, 40 Pa. St 199 ; 
 State V. Klinger, 46 Mo. 224, 338, 239; 
 Com. V. Rich, 14 Gray, 335 ; Russell 
 V. State, 53 Miss. 367 ; Com. v. Pom- 
 eroy, 117 Mass. 143, 149; Dunham's 
 Appeal, 27 Conn. 193. 
 
 i^Dyer, 03b, pi. in marg., ed. 1«88. 
 
OPINIONS AND CONCLUSIONS. 589 
 
 a particular sense, or may mean something different from that 
 which it ordinarily and usually does mean. But the proper 
 course for a counsel who proposes so to get rid of the plain 
 and obvious meaning of words imputed to a defendant as 
 spoken of the plaintiff is to ask the witness, not "What did 
 you understand by those words? " but " Was there anything to 
 prevent those words from conveying the meaning which ordi- 
 narily they would convey?" because, if there was, evidence of 
 that may be given, and then the question may be put. When 
 you have laid the foundation for it, the question then may be 
 put, "What did you understand by them?" when it appears 
 that something occurred by which the witness understood the 
 words in a different sense from their ordinary meaning. I be- 
 lieve we may say that generally no question ought to be put 
 in such a form as possibly to lead to an illegal answer. ISTow, 
 taken by itself, and without more, the understanding of a per- 
 son who hears an expression is not the legal mode by which it 
 is to be explained. If words are uttered or printed, the ordinary 
 sense of those words is to be taken to be the meaning of the 
 speaker; but no doubt a foundation may be laid by showing 
 something else which has occurred. Some other matter may 
 be introduced, and then, when that has been done, the witness 
 may be asked, with reference to that other matter, what was 
 the sense in which he understood the words. But the mere 
 question, "What did you understand with reference to such an 
 expression? " we think is not the correct mode of putting the 
 question.' 
 
 Another class of exceptions is to be found where the judg- 
 ment or opinion of a witness on some question material to be 
 considered by the tribunal is formed on complex facts which 
 from their nature it would be impossible to bring before it. 
 Thus, the identification by a witness of a person or thing is 
 necessarily an exercise of his judgment. In the identification 
 of a person, you compare in your mind the man you have seen 
 with the man you see at the trial. The same rule belongs to 
 every species of identification. 
 
 Generally, wherever there is such a coincidence in admitted 
 facts as makes it more reasonable to conclude that a certain 
 subject-matter is one thing rather than another, that coinci- 
 dence may be laid before the jury to guide their judgment in 
 deciding on the probability of that fact. 
 
 iFiske V. Gowing, 61 N. H. 431 ; Templeton v. Luckett, 41 U. S. App. 393. 
 
CHAPTER XYI. 
 
 PRESUMPTIVE EVIDENCE. 
 
 1 OF PRESUMPTIVE EVIDENCE IN 
 GENERAL. 
 
 § 1. Definition. 
 
 2. Presumptions in general, 
 
 3. Fictions of law. 
 
 4. Circumstances and presump- 
 
 tions of — Difference between. 
 
 5. Presumptions jMJ'is et dejure. 
 
 6. No arbitrary rule of presump- 
 
 tion fixed. 
 
 7. Circumstances inflexible proof 
 
 when. 
 
 8. Every one is presumed to know 
 
 the law when. 
 
 9. Estoppels as presumptions. 
 
 XL PRESUMPTIONS THAT OFFICERS DO 
 THEIR DUTY. 
 
 10. Public officers. 
 
 11. Concerning person's status. 
 
 13. A party presumed to know the 
 contents of a writing signed 
 by him. 
 
 III. INTEREST OF HUSBAND AND WIFE. 
 
 IV. A PARTY MUST SHOW A FACT OF 
 WHICH HE IS BEST COGNIZANT. 
 
 V. PRESUMPTION OF JURISDICTION OF 
 COURT. 
 
 § 13. General jurisdiction. 
 14 Regularity of proceedings pre- 
 sumed when. 
 
 15. Limited jurisdiction — Courts 
 
 of. 
 
 VX PRESUMPTIONS AS TO CARRIERS, 
 BAILEES, ETa 
 
 16. Negligence of. 
 
 17. In an accident casa 
 
 18. Innkeepers. 
 
 19. By ships, etc. 
 
 30. By carriers as to passengers. 
 
 31. Contributory negligencft 
 23. As to property. 
 
 23. By railroad trains. 
 
 VIL OFFICIAL ACTS — PRESUMPTION 
 OF AUTHORITY. 
 
 34 Proof of official capacity. 
 
 VIIL PRESUMPTION THAT THE USUAL 
 COURSE OP BUSINESS WAS FOL- 
 LOWED. 
 
 IX. AGREEMENT TO PAY FOB SERV- 
 ICES PRESUMED WHEN, 
 
 I. OF PEESUMPTIVB BVIDENOB IN GENERAL. 
 
 § 1. Definition. — A presumption is a rale of law that courts 
 or juries shall or may draw a particular inference from a par- 
 ticular fact or from particular evidence unless and until the 
 truth of such inferences is disproved.' Presumptions are raised 
 to take the place of actual proofs ; when the proofs are present 
 there is neither foundation nor room for the presumptions.* 
 And inferences cannot be drawn from inferences to show a 
 liability.' A presumption of law is a rule of law that a par- 
 
 1 1 Starkie, Ev. 28-39 ; Hull v. Af- 
 lington I. S. D., 82 Iowa, 692. 
 
 2 Keller v. Ford, 136 Pa. St. 1. 
 
 3 Whitney v. Short, 149 Pa. St. 29. 
 
PEKSDMPTITE EVIDENCE. 591 
 
 ticular inference shall be drawn by a court or jury from a 
 particular circumstance.' A presumption of fact is a rule of 
 law that a ftict otherwise doubtful may be inferred from a 
 fact which is proved. A presumption must be based upon a 
 fact and not upon inference or upon another presumption.^ A 
 presumption is neither continuous nor retroactive.' As a rule, 
 the burden of proof remains where the issue made by the 
 pleadings places it.^ 
 
 Presumptions may be said to relate to things, persons, and 
 the acts and thoughts of intelligent agents.' Thus, the ab- 
 sence of those natural qualities, powers and faculties which are 
 incident to the human race in general will never be presumed 
 in any individual ; such as the impossibility of living without 
 food, the power of procreation within the usual ages, the pos- 
 session of reasoning faculties, the common and ordinary un- 
 derstanding of men, etc.* No man will ever be presumed to 
 throw away his property, as, for instance, by paying money 
 not due;' and so it is a maxim that every one must be taken to- 
 love his own offspring more than that of another person.* 
 
 PrcBsumptiones hominis, or presumptions of fact, are divided 
 into shght and strong, according as they are or are not of suf- 
 ficient weight to shift the burden of proof.' Slight presump- 
 tions, although sufficient to excite suspicion or to produce an; 
 impression in favor of the truth of the facts they indicate, do 
 not, when taken singlj"^, either constitute proof or shift the 
 burden of proof. Strong presumptions of fact, on the contrary, 
 shift the burden of proof, even though the evidence to rebut 
 them involved the proof of a negative-''^ 
 
 Presumptions of mixed law and fact, and presumptions of 
 fact recognized by law, hold an intermediate place between 
 the two former, and consist chiefly of certain presumptive in- 
 ferences which, from their strength, importance or frequent 
 
 1 1 Phil. Ev. 627. 6 Huberus, Prael. Jur. Civ., lib. 33, 
 
 2 Cumberland & P. R. Co. v. State, tit. 3, d. 17. 
 
 73 Md. 74. 7 Voet. ad Pand., lib. 23, tit 3, n. 15 ;. 
 
 8 1 Phil. Ev. 495 ; Lawson, Pres. Ev. Dig., lib. 23, tit, 3, 1. 35. 
 
 31. 8 Co. Litt. 373a; 2 Inst. 564. 
 
 ^Blunt V. Barrett, 124 N. Y. 117, 33 9 Huberus, Prael. Jur. Civ., lib. 22,. 
 
 N. Y. State Rep. 64. tit. 8, n. 15. 
 
 « Huberus, Prael. Jur. Civ., lib. 33, w Byrne v. Boadle, 3 H. & C. 723; 
 
 tit. 3, n. 17, Kearney v. London & Brighton R. 
 
 Co., L. R. 5 Q. B. 411. 
 
592 EULES OF EVIDENCE. 
 
 occurrence, attract, as it were, the observation of the law ; and, 
 from being constantly recommended by judges and acted on 
 by juries, become in time as familiar to the courts as presump- 
 tions of law, and occupy nearly as important a place in the 
 administration of justice. They are, in truth, a sort of quasi 
 pr(Bsumj>tiones juris ^ and, like strict legal presumptions, may 
 be divided into three classes : 1st, where the inference is one 
 which common sense would have made for itself; 2d, where 
 an artificial weight is attached to the evidentiary facts beyond 
 their natural tendency to produce belief; and 3d, where, from 
 motives of legal policy, juries are recommended to draw infer- 
 ences which are purely artificial. 
 
 When the presumption is one which the policy of law and 
 the ends of justice require to be made, such as the existence 
 of immemorial rights from uninterrupted modern user, the 
 jury should be told that they ought to make the presumption 
 unless evidence is given to the contrary ; it should not be left 
 to them as a matter for their discretion.' And the same rule 
 seems to apply where the presumption is one of much natural 
 weight and of frequent occurrence, as where larceny is inferred 
 from the recent possession of stolen property. 
 
 Strictly all presumptions are of fact. The entire probative 
 force of circumstantial evidence consists in this: it suggests 
 an inference, or, as the phrase is, " raises a presumption " as to 
 the existence of a fact in issue.^ "A presumption of law derives 
 its force from jurisprudence as distinguished from logic."' It 
 is an "assumption" of the law rather than a presumption. 
 Presumptions of fact are obviously of varying weight, in ac- 
 cordance with the closeness of connection between the fact 
 established and the fact in issue, as the inference of one from 
 the existence of the other is more or less necessary. The law 
 assumes that an inference is a correct one unless and until evi- 
 dence is introduced to prove that it is not. "When such evidence 
 is introduced the legal assuniption or " presumption of law " 
 
 1 Shephard v. Payne, 16 C. B. (N. S.) Aiken, 25 Vt. 324 ; McLeer v. McMur- 
 
 133, 135 ; Lawrence v. Hitch, L. R 3 ray, 58 Pa. St. 126 ; O'Gara v. Eisen- 
 
 -Q. B. 531 ; Jenkins v. Harvey, 1 C, lolir, 38 N. Y. 296 ; People v. Hessing, 
 
 M. & R. 877; Pilots of Newcastle v. 28 111. 410; Pennington v. Yell, 11 
 
 Bradley, 2 E. & B. 431 ; Brune v. Ark. 212 ; Manning v. John Hancock 
 
 Thompson, 4 Q. B. 543, 552. Mutual Life Ins. Co., 100 U. S. 693. 
 
 21 Greenl. Ev., g 14; Richmond v. 3 2 Whart. Ev„ g 1237. 
 
PEESUMPTIVE EVIDENCE. 593 
 
 is at an end as such. But until such evidence is introduced 
 there is no necessity of introducing facts to prove what the 
 law will assume as true.^ Such a presumption may be created 
 either by statute or by judicial legislation.^ 
 
 §2. Presumptions in general.— The results of experience 
 are, expressly or impliedly, assumed as the standard of cred- 
 ibility in all questions dependent upon moral evidence.' By 
 experience, facts or events of the same character are referred 
 to causes of the same kind. By analogy, facts and events sim- 
 ilar in some but not in all their particulars to other facts and 
 occurrences are concluded to have been produced by a similar 
 cause; so that analogy vastly exceeds in its range the limits 
 of experience in its widest latitude, though their boundaries 
 may sometimes be coin<;ident and sometimes indistinguishable. 
 It has been profoundly remarked that in whatever manner 
 the province of experience, strictly so called, comes to be thus 
 enlarged, it is perfectly manifest that, without such provision 
 for this purpose, the principles of our constitution would not 
 have been duly adjusted to the scene in which we have to act. 
 Were we not so formed as eagerly to seize the resembling 
 features of different things and different events, and to ex- 
 tend our conclusions from the individual to the species, life 
 would elapse before we had acquired the first rudiments of 
 that knowledge which is essential to our animal existence. 
 Every branch of knowledge presents instructive examples of 
 the extent to which this mode of reasoning may be securely 
 carried. In short, all that men know is referable to percep- 
 tion and reflection. During the period of childhood we be- 
 lieve implicitly almost all that is told us. At an early period, 
 however, we begin to find that of the things told to us some 
 are not true, and thus our implicit reliance on the testimony 
 of others is weakened. 
 
 § 3. Fictions of law. — Fictions of law are closely allied to 
 irrebuttable presumptions of law.* They arise where the laAv 
 for the advancement of justice assumes as fact, and will not 
 allow to be disproved, something which is false but not impos- 
 
 1 Com. V. Pike, 49 N. H. 399 ; Graves * Muller v. Dows, 94 U. S. 444 -^ 
 V. Colwell, 90 lU. 612. Manufacturers' National Bank v. 
 
 2 Holmes V. Hunt, 122 Mass. 505. Brock, 3 Abb. (U. S.) 232; 3 Black. 
 
 3 Whitney v. Short, 149 Pa. St 29. Com. 43, note (6). 
 
59i ECLES OF EVIDENCE. 
 
 sible. A presumption of law may or may not be true, whilst 
 in fictions of law the falsehood of the fact assumed is under- 
 stood and avowed.i But fictions are only to be made from ne- 
 cessity and to avoid mischief,^ and must never be allowed to 
 work prejudice to an innocent party.' 
 
 Fictions of law are of three kinds: AflBrmative or positive 
 fictions, negative fictions, and fictions of relation.'' In the case 
 of affirmative fictions something is assumed to exist which in 
 reality does not. In negative fictions, on the contrary, that 
 which really exists is treated as if it did not. Fictions of rela- 
 tion are of four kinds : ' First, where the act of one person is 
 taken to be the act of another; as where the act or possession 
 of a servant is deemed the act or possession of his master. 
 Second, where an act done by or to one thing is taken by rela- 
 tion as done by or to another. Third, fictions as to place; as 
 of a contract made at sea or abroad being treated as if made 
 in England, and the like.' Fourth, fictions as to time. It is a 
 fixed principle that ratification has relation back to the time 
 of the act done ; and judicial acts in the course of a suit are re- 
 ferred back to the commencement of the day, though the rule 
 does not apply to the acts of a party.'' 
 
 § 4. Circumstances and presumptions — DiflFerence be- 
 tween. — The term "presumptive" is frequently used as syn- 
 onymous with "circumstantial" evidence; but it is not so 
 used with strict accuracy. The word "presumption," «a? vi 
 .termini, imports an inference from facts, and the adjunct 
 "presumptive," as applied to evidentiary facts, implies the 
 certainty of some relation between the facts and the infer- 
 ence. Circumstances generally, but not necessarily, lead to 
 particular inferences ; for the facts may be indisputable, and 
 yet their relation to the principal fact may be only apparent 
 ^nd not real ; and even when the connection is real the de- 
 
 iHuberus, Prael. Jur. Civ., lib. 32, 6 3 Black. Com. 107. 
 
 tit. 3, note ^1. 'Edwards -v. Regina, 9 Ex. 638: 
 
 2 Butler's and Baker's Case, 3 Co. Clarke v. Bradlaugh (C. A.), 8 Q. B. D. 
 
 30a. 63, ia which latter case the defendant 
 
 '13 Co. 21a, 11 id. 51. unsuccessfully contended that the 
 
 * Westenbergin's Principia Juris, court could not inquire at what period 
 
 lib. 22, tit. 3, § 29. of the day a writ of summons was 
 
 ^ Westenbei^an's Principia Juris, issued against hirn. 
 lib. 22, tit 3, g"o. 
 
PRESUMPTIVE EVIDENCE. 595 
 
 duction may be erroneous. Circumstantial and presumptive 
 evidence differ, tlierefore, as genus and species. The ante- 
 cedent circumstances are one thing, the presumption from 
 them another and different one. Of presumptions afforded 
 by moral phenoainiena, a memorable instance is recorded in the 
 judgment of Solomon, whose knowledge of the all-powerful 
 force of maternal love supplied him with an infallible criterion 
 of truth.' 
 
 § 5. Presumption juris et de jure. — Conclusive, or, as they 
 are sometimes called, imperative or absolute, presumptions of 
 law are rules determining the quantity of evidence requisite to 
 support any particular averment, which is not permitted to 
 be. overcome by any proof that the fact is otherwise; as that 
 every person is conclusively presumed to contemplate the 
 natural and probable consequences of his acts, and that every 
 person above the age of fourteen years is acquainted with the 
 law. The civilians divided legal presumptions into two classes, 
 namely, jprwsumptiones juris et de jure, and jprmsumptiones 
 juris simply. Presumptions of the former class were such as 
 were considered to be founded upon a connection and rela- 
 tion so intimate and certain between the fact known and the 
 fact sought that the latter was deemed to be an infallible 
 consequence from the existence of the first. Such presump- 
 tions were called prcesu?nptiones juris because their force and 
 authority were recognized by the law, and de jure because 
 they were made the foundation of certain specific legal con- 
 sequences, against which no argument or evidence was ad- 
 missible; while prcBsumptiones juris simply, though deduced 
 from facts characteristic of truth, were always subject to be 
 overthrown by proof of facts leading to a contrary presump- 
 tion. The justice and policy of such relations have been thus 
 eloquently stated. Civil cases regard property as natural, 
 although property itself is not ; yet almost everything concern- 
 ing property, and all its modifications, is of artificial contriv- 
 ance. The rules concerning it become more positive as con- 
 nected with private institutions. The legislaturCj therefore, ■ 
 always, the jurist frequently, may obtain certain methods, by 
 which alone they will suffer such matters to be known and 
 established; because their very essence, for the greater part, 
 
 1 Domat's Civil Law, book III, tit. G. 
 
596 RULES OF EVIDENCE. 
 
 depends on the arbitrary conventions of men. Men act on 
 them with all the power of a creator over his creatures. They 
 make fictions of law and presumptions oila.^ prwsumptiones 
 juris et dejwre according to their ideas of utility, and against 
 those fictions and against presumptions so created they do' 
 and may reject all evidence. 
 
 § 6. No arbitrary rule of presumption fixed.— Presump- 
 tions of every kind, to be just, must be dictated by nature and 
 reason ; and, except under special and peculiar circumstances, 
 it is impossible, without a dereliction of every rational princi- 
 ple, to lay down positive rules of presumption where every 
 case must of necessity be connected with peculiarities of per- 
 sonal disposition and of concomitant circumstances, and be 
 therefore irreducible to any fixed principle. In criminal juris- 
 prudence, therefore, arbitrary presumptions should be spar- 
 ingly admitted, and even when they are so they occasionallv 
 work injustice. Where a peremptory presumption of legal 
 guilt is not pernicious and unjust, it is in general at least un- 
 necessary; for, if it be a fair conclusion of the reason, it will 
 be adopted by the tribunals without the mandate of the leg- 
 islature. The common law admits of no such thing as the 
 semiplena probatio, founded on circumstances of conjecture 
 and suspicion only, which in many countries governed by the 
 Roman law was held to warrant the infliction of torture with 
 a view to compel admissions and complete perfect proof. 
 
 § 7. Circumstances inflexible proof when. — It has been said 
 that "circumstances are inflexible proofs; that witnesses may 
 be mistaken or corrupted, but things can be neither." ■ Now 
 a circumstance is neither more nor less than a minor fact, and 
 it may be admitted of all facts that they cannot lie; for a fact 
 cannot at the same time exist and not exisfi; so that in truth 
 the doctrine is merely the expression of a truism, that a fact 
 is a fact. It may also be admitted that " circumstances are 
 inflexible proofs," but assuredly of nothing more than of their 
 own existence. Although "circumstances cannot lie," the 
 narrators of them may; that, like witnesses of all other 
 facts, they may be biased or mistaken, and the facts, even 
 if undisputably trae, may lead to erroneous inferences. If 
 evidence be so strong as necessarily to produce certainty 
 
 « Burnett's C. L, of Scotland, 520. 
 
PEESCMPTIVE EVIDENCE. 597 
 
 and x;onviction, it matters not by what kind of evidence the 
 effect is produced; and. the intensity of the proof must be 
 precisely the same whether the existence be direct or circum- 
 stantial. It is not intended to deny that circumstantial evi- 
 dence afifords a safe and satisfactory ground of assurance and 
 belief, nor that in many individual instances it may be superior 
 in proving power to other individual cases of proof by direct 
 evidence. Where circumstances connect themselves closely 
 with each other, where they form a large and strong body, so 
 as to carry conviction to the minds of a jury, it may be proof 
 of a more satisfactory sort than that which is direct. In 
 some lamentable instances it has been known that a short 
 story has been learned by heart by two or three witnesses ; thej' 
 have been consistent with themselves; thej' have been consist- 
 ent with each other, swearing positively to a fact, which fact 
 has turned out afterwards not to be true. It is almost impos- 
 sible for a variety of witnesses, speaking to a variety of cir- 
 ourastances, so to concert a story as to impose upon a jury by 
 a fabrication of that sort ; so that where it is cogent, strong 
 and powerful, where the witnesses do not contradict each 
 other or do not contradict themselves, it may be evidence 
 more satisfactorj^ than even direct evidence; and there are 
 more instances than one where that has been the case. It 
 has been said that "though in most cases of circumstantial 
 evidence there be a possibility that the prisoner may be inno- 
 cent, the same often holds in cases of direct proof, where 
 witnesses ma}^ err as to identity of person, or corruptly falsify 
 for reasons that are at the time unknown." ' Where the evi- 
 dence is direct, the testimony credible, belief is the immediate 
 and necessary result ; whereas, in cases of circumstantial evi- 
 dence, processes of inference and deduction are essentially 
 involved, frequently of a most delicate and perplexing char- 
 acter, liable to numerous causes of fallacy, some of them in- 
 herent in the nature of the mind itself, which has been pro- 
 foundly compared to the distorting power of an uneven mirror, 
 imparting its own nature upon the true nature of things.^ 
 
 1 Burnett's C. L. of Scotland, 524 see 3 Bentham's Jud. Ev., book V, ch. 
 
 2 Novum Organuni, lib. 1, Aph. 41, XV, § IV. 
 43 ; Best on Presumptions, 355. And 
 
698 EULES OF EVIDENCE. 
 
 § 8. Every one is presumed to know the law wlien.— 
 
 ''■ Ignorardia juris, quod qitisque tenetur scire, neminem ex- 
 cusat," is a maxim of law recognized from the earliest times. 
 Every one who is of the age of discretion and compos mentis 
 is presumed to know the municipal law when ignorance of it 
 would relieve him from the consequences of a crime or from 
 liability upon a contract; for every one is bound to know the 
 law of the land regulating his conduct, and he is presumed 
 to do so.' Thus, where A. deals with a person whom he 
 knows to be a broker, he is presumed to know that such per- 
 son is acting as an agent for some third person.^ And where 
 A. finds a mortgage on record over thirty years old, which 
 the law from lapse of time presumes paid, if A. purchases 
 the mortgage he is presumed to know that it is presumed to 
 be paid.^ And in a case where A. is sentenced to the peni- 
 tentiary by a court having no jurisdiction to try him, in an 
 action against the jailer and sheriff for trespass it is pre- 
 sumed that they knew the law and that they had no right to 
 hold him.* It is an offense to sell an article the sale of which 
 is prohibited, although the seller does not know that it is a 
 prohibited article.' Thus, where a statute prohibits the selling 
 of liquor to an intoxicated person; if A. sells liquor to an in- 
 toxicated person, not being aware of the law, he is neverthe- 
 less liable, as he is presumed to know it." So where an act 
 prohibited by statute is done without knowledge of the crim- 
 inal ingredient in the act, ignorance or mistake of fact has 
 been held to be no excuse;' but the contrary has also been 
 held.' There is no presumption of knowledge of private or 
 foreign laws. 
 
 § 9. Estoppels as presumptions. — Estoppels are ranked 
 with conclusive presumptions, and are divided into three 
 classes : estoppels by deed, by record, and in pais. A man is 
 said to be estopped when he has done or permitted some act 
 which the policy of the law will not permit him to gainsay 
 
 14 Bl. Com. 27; 1 Hale, P. C. 42. ("Sloniger v. Sloniger, 161 111. 370; 
 
 2 Baxter v. Duree, 50 Am. Dec. 602, Co .11. v. Boynton, 2 Allen (Mass.), 160 ; 
 
 29 Me. 484. Wliilton v. State, 37 Miss. 379; Win- 
 
 ' Goodwyn v. Baldwin, 59 Ala. 127. chart v. State, 6 Ind. 30. 
 
 < Pattison v. Prior, 18 Ind. 440. '• Cora. t. Emmons, 98 Mass. 6. 
 
 6 Com. V. Raymond, 97 Mass. 567 ; » Cutter v. State, 36 N. J. L. 125 ; 
 
 Com. V. Wentworth, 118 id. 470. Stern v. State, 53 Ga. 229. 
 
PEBSUMPTIVE .EVIDENCE. 599 
 
 or deny. They are only binding upon the parties and their 
 privies, and can on]y be taken advantage of by those who are 
 bound by them. But it does apply to the sovereign. Estop- 
 pels in pais are those which are not included in those by deed 
 or record. Thus, if the maker of a note declares it to be 
 good to a person Avho is about to purchase it, or stands by in 
 silence when it is about to be transferred to a third person, 
 he is thereby estopped from setting up any defense to the 
 note which existed at that time of which he was or ought to 
 have been cognizant.' Mr. Lawson, in his work on Presump- 
 tive Evidence, says:* Persons engaged in a particular trade 
 are presumed to be acquainted with the value of an article 
 bought and sold therein, the names under which they go in 
 such trade, and the general customs obtaining and followed 
 therein. The same rule is laid down in Hinckley v. Kersting,' 
 where it was held that a bank was estopped from saying that 
 bank bills purchased by it at a discount were worthless. A per- 
 son who deals in a particular market must be taken to deal 
 according to the custom of that market.* All trades have 
 their usages, and wlien a contract is made with a man about 
 the business of his craft, it is presumed to have been made ou 
 the basis of such usage, which becomes a part of it. In other 
 words, the uniform custom of a merchant or manufacturer is 
 presumed to be known to those in the habit of dealing with 
 him, and in their dealings they are presumed to act in refer- 
 ence to that custom. Thus, where it is the general custom 
 in a certain trade to charge interest on accounts after a fixed 
 time, parties dealing therein are presumed to be cognizant of 
 this custom and are bound to it.* 
 
 II. PKESUMPTION THAT OPFICEKS DO THEIE DUTY. 
 
 §10. Public officers.— The presumption is that public of- 
 ficers do as the law and their duty require them.' The same 
 presumption arises in favor of an attorney at law; and if an 
 attorney does an act which would be a violation of his duty 
 
 > Cloud V. Whiting, 38 Ala. 57; estate t. Lewis, 107 N. C. 967; 
 
 Vanderpool v. Blake, S8 Ind. 130. Cowles v. Reavis, 109 id. 417; People 
 
 2 Page 15. ex rel. Soer t. Crane, 125 N. Y. 535, 
 
 3 21 III. 247. 35 N. Y. State Rep. 819; Young v. 
 ^ Broom's Legal Max. 682, 889. Wempe, 46 Fed. Rep. 354 ; Enos v. 
 "Meech V. Smith, 7 Wend. 315. State, 131 Ind. 560; McDonald v. 
 
600 ETTLHS OF EVIDENCE. 
 
 unless a certain condition had first been performed, it will be 
 presumed that such condition was performed.' But this pre- 
 sumption will not be permitted to sustain a vital jurisdictional 
 fact;^ nor to sustain acts done by him outside of or contrary 
 to the usual and well-recognized functions and duties of his 
 office.' Thus, where a return of service of summons of an 
 officer is not dated, the presumption is that it was served 
 within the legal time.* Where it is the duty of an officer to 
 make certain entries in books, and the books with such entries 
 are produced, the presumption is that he made them.' 
 
 §11. Concerning person's status. — The place where a 
 person lives is presumptively his domicile.' So the earnings 
 of a minor son are presumed to belong to his father.'' Al- 
 though the legal presumption, in the absence of an express 
 agreement to the contrary, is that one who during his minor- 
 ity performs services for another standing in looo parentis 
 towards him is not entitled to compensation therefor,^ there 
 is no presumption of law against an agreement of a parent to 
 pay a child for personal services, where there is evidence 
 tending to show such an agreement, although if there is no 
 such evidence there is a presumption that the services are 
 gratuitous.' So the presumption that a son who, after attain- 
 ing majority, continues a member of his father's family, work- 
 ing for him apparently as before, is working for his support, 
 as in his minority, may be overcome by evidence indirect or 
 circumstantial, by the conduct or conversation of the parties.'" 
 So proof that a person is the child of a certain person named 
 
 Nelson, 2 Cow. 139; People v. Smith, Lewis v. Colgau, 115 Cal. 539; Har- 
 
 59 Cal. 365 ; Roberts v. Cook, 68 Ga. wood v. State, 63 Ark. 130 : Harkins 
 
 325; Conwell V. Watkins, 71 111. 489; v. Cathay, 119 N. C. 649; Mulnix v. 
 
 Ward V. State, 48 Ind. 290; Tunstall Mutual Ben. Life Ins. Co., 23 Colo. 85. 
 
 V. Parish of Madison, 30 La. Ann. 3 Jones v. Muisbach, 26 Tex. 335. • 
 
 471; Wilson V. Morris, 94 Tenn. 547; < Reid v. Jordan, 56 Ga. 63; Ben- 
 
 Matzenbaugh v. Doyle, 153 111. 331 ; nett v. McConnell, 88 id. 177. 
 
 Spencer v. Reese, 165 Pa. St. 158; In- ^Boyce v. Auditor-General, 90 Mich, 
 
 graham v. United States, 155 U. 8. 336. 
 
 434; Gay v. Southworth, 113 Mass. 6 Mowry v. Latham, 17 R. L 480. 
 
 333; Henry v. Dulle, 74 Mo. 413; 7 Grant v. Grant, 109 N. C. 710. 
 
 People V. Snyder, 41 N. Y. 397 ; Lee- « Puterbaugh v. Puterbaugh, 7 Ind. 
 
 dom V. Lombart, 80 Pa. St 381. App. 280. 
 
 1 Davis V. Bowe, 27 N, Y. State Rep. i* Ulrich v. Ulrich, 136 N. Y. 120, 49 
 863, 118 N. Y. 55; State v. Main, 69 N. Y. State Rep. 33. 
 
 Conn. 123. i" Donahue v. Donahue, 53 Minn. 
 
 2 Sheldon v. Wright, 7 Barb. 39; 460. 
 
PKESUMPTIVE KVIDKNOE, 601 
 
 Is sufficient proof that he is his legitimate child/ and that a 
 child born in wedlock is legitimate; but there is no presump- 
 tion that a man who marries the mother of a bastard child is 
 its father.^ 
 
 § 12. A party presumed to know the contents of a writing 
 signed by him. — Every person is presumed to know the con- 
 tents of a writing signed by himself, or by another at his 
 request; and so of a paper drawn up by one for another, and 
 of matters referred to ia such writing.' It is also presumed 
 that the party signing knew the legal effect thereof.* 
 
 HI. INTEREST OF HUSBAND AND WIFE. 
 
 The law presumes a loan from the mere fact of the receipt 
 of the wife's money by the husband, and such presumption 
 can only be rebutted by proof of a gift.' But it seems the 
 presumption of a gift by a wife to the husband arises when 
 she applies funds belonging to her for his benefit, or volun- 
 tarily turns them over to him to be used in his business or for 
 the support of his family.* In transfers from a husband to 
 his wife or to another for her benefit, there is a presumption 
 against the wife in favor of her husband's creditors, which 
 she must overcome by affirmative proof.' But it seems that 
 the creditor attacking such deed or transfer must show the 
 insolvency of the husband at the time of the purchase or trans- 
 fer and that the property was paid for with the debtor's 
 money.' The presumption is that a husband purchased the 
 
 'McChaskey v. Barr, 47 Fed. Rep. 7 Leonard v. Smith, 34 W. Va. 443; 
 
 154; Methery v. Bohn, 160 111. 363. Stevens v. Carson, 30 Neb. 544; Os- 
 
 nicDonald^s Appeal, 147 Pa. St. born v. Wilkes, 108 N. C. 651 ; Backer 
 
 527; Hunter v. Hunter, 111 Cal. 861, v. Meyer, 48 Fed. Rep. 703; Smith v. 
 
 31 L. R. A. 417. Tosini (S. D.), 48 N. W. Rep. 299 ; Get- 
 
 »Re Sheldon's Will, 141 N. Y. 559, tlenvann v. Gitz, 78 Wis. 439; Sar- 
 
 40 N. Y. State Rep. 369; Ballon v. geant v. Fuller, 132 Pa. St. 137 ; Storrs 
 
 Earl (R. 1), 45 Alb. L. J. 44; Finn v. v. Storrs, 23 Fla. 374; Manchester v. 
 
 Brown, 143 U. S. 56; Harris v. Story, Tibbetts, 131 N. Y. 219, 30 N. Y. State 
 
 3 E. D. Smith, 363. " Rep. 731 ; Claflin v. Pfeiffer, 76 Tex. 
 
 4Mears v. Graham, 8 Blaokf. (Ind.) 469. 
 
 144; Bhven v. Lydecker, 130 N. Y. swhite v.Classby, 101 Mo. 162; Tus- 
 
 102, 40 N. Y. State Rep. 636. caloosa First Nat. Bank v. Kennedy, 
 
 3Re Wormley's Estate, 137 Pa. St. 91 Ala, 470; Watson v. Pinkney, 46 
 
 101. N. Y. State Rep. 345, 18 N. Y. Supp. 
 
 6 Reed v. Reed, 135 111. 482. But 790 ; Danforth v. Briggs, 89 Me. 316. 
 see Ghadbourne v. Williams, 45 Minn. 
 29t 
 
602 ECLES 01" EVIDENCE. . 
 
 property in his possession with bis own funds instead of funds 
 belonging to his wife;' and where personal property is found 
 in the possession of a married woman, the presumption of law 
 is that her possession is that of her husband, and the burden 
 rests upon her to show that she is the sole and separate owner.- 
 The presumption is that where the corpus or principal of the 
 separate property of a married woman is taken possession of 
 by her husband, it is held by him for her use and benefit ; but 
 a different rule prevails as to interest or income.^ In Texas 
 goods held by a husband or wife are presumed to be commu- 
 nity property.* 
 
 IT. A PAETY MUST SHOW A FACT OF WHICH HE IS BEST COGNIZANT. 
 
 The burden of proof is on the party to show a material 
 fact of which he is best cognizant.* When it is as easy for 
 the plaintiff to prove the negative as it is for the defendant 
 to disprove it, then the burden of proof must rest with him ; 
 but where the means of proving the negative are not within 
 the power of the plaintiff, but all the proof on the subject is 
 ■within the control of the defendant, who, if the negative is not 
 true, can disprove it at once, then the law presumes the truth 
 of the negative averment from the fact that the defendant 
 withholds or does not produce the proof which is in his hands, 
 if it exists, that the negative is not true.* 
 
 V. PKESUMPTION OF JURISDICTION OF COTJET. 
 
 § 13. General jurisdiction. — "Where a court having general 
 jurisdiction acts in a case, its jurisdiction to so act will be pre- 
 sumed;' and this presumption embraces jurisdiction not only 
 
 1 Stephenson v. Felton, 106 N. C. 853; Re Tobin, 40 N. Y. State Rep. 
 114; Bucks v. Moore, 36 Mo. App. 366; Dimmick v. Dimmick, 95 Gal. 
 529 ; Rice v. Sayles, 23 111. App. 189. 333. 
 
 2 Heinelreicli v. Carlos, 24 Mo. App. ^ Ford v. Simmons, 13 La. Ann. 397 ; 
 264; Re Martin's Estate, 181 Pa. St. Graves y. United States, 150 U. S. 
 378 ; Duval v. Duval, 54 N. J. Eq. 581 ; 118. 
 
 Re Hagg's Succession, 49 La. Ann. 37. « Oom. v. McCabe, 163 Mass. 98 ; The 
 
 » Denny v. Denny, 123 Ind. 240; Sam Sloan, 65 Fed. Rep. 125; Kenyon 
 
 Clark V. Clark, 76 Wis. 306; Bartlett v. Kenyon, 88 Hun, 211; Runkle v. 
 
 V. Wright, 29 111. App. 339; Hood v. Buruham, 153 U. S. 216; De Walt v. 
 
 Jone.s, 5 Del. Oh. 77. Doran, 21 D. C. 163 ; St, Louis v. Reg., 
 
 iPurdom v. Boyd, 82 Tex. 138. And 4 Can. Exch. 185. 
 
 see Gretton v. Weber, 47 Fed. Rep. 'Wallace v. Cox, 71 111. 518; Ger- 
 
PEESUMPTIVE EVIDENCE. 603 
 
 of the cause or subject-matter of the action in which the judg- 
 ment is given, but of the parties also.' And where it appears 
 that the court was one of record, having a seal and clerk, it will 
 be presumed that it had jurisdiction.^ 
 
 § 14r. Kegularity of proceedings The regularity of the 
 
 proceedings of courts of general powers is presumed ; and so 
 of the proceedings of inferior courts, jurisdiction being once 
 shown to exist.' From delivery of letters of administration 
 it is presumed that the oath required of the administrator 
 was taken. It will be presumed that the court below did 
 "strict justice" to the parties as required by statute.^ Where 
 judgment is shown, the presumption is that the summons was 
 served on the defendant as required by law.' If any presump- 
 tion of law be reasonable, it is that which favors the regu- 
 larity of judicial proceedings until something else appears; 
 and the greater the tendency to irregularity, the greater the 
 necessity for violence of presumption against it ; this is all that 
 saves our records.* It will be presumed of a judgment rendered 
 on service by publication that a proper affidavit on which to 
 base the citation by publication was made, until the contrary 
 is affirmatively shown by something in the record.' With re- 
 spect to the general principle of presuming regularity of pro- 
 cedure, it may perhaps appear to be the true conclusion that 
 wherever acts are apparently regular and proper they ought 
 
 man Nat. Bank v. Elwood, 16 Colo. Cal. 497 ; Bugbee v. Lombard, 88 Wis. 
 
 244 ; Hohn v. Kelly, 34 Cal. 400 ; Hays 271 ; Street v. Andrews, 115 N. C. 417 ; , 
 
 V. Ford, 55 Ind. 53. Rogers v. Johnson, 125 Mo. 202. 
 
 iGalpin v. Page, 18 Wall. 364; < Hoag v. Greenwich, 133 N. Y. 153, 
 
 Smith V. Mongoga, 3 N. M. 39 ; State 44 N. Y. State Rep. 519 ; Grimstead v. 
 
 V. Gamble, 108 Mo. 500 ; Robertson v, Foote, 26 Miss. 476. 
 
 Stead, 135 Mo. 135, 33 L. R A. 203. 5 German Nat Bank v. Elwood, 16 
 
 * Caughran v. Gilman, 81 Iowa, 443 ; Colo. 244 ; Ray v. Rowley, 1 Hun, 614. 
 
 Hallum V. Dickinson, 54 Ark. 311; « Green v. Tower, 49 Kan. 302; 
 
 Gage V. Nichols, 135 111. 128; Henry Jamison v. Weaver, 84 Iowa, 611; 
 
 V. Allen, 83 Tex. 35 ; Evans v. Wat- Slioer v. Bank of Pittsburgh, 16 How. 
 
 son, 156 U. S.527; Damon v. Carroll, (U. S.) 571: State v. Hinchman, 27 
 
 163 Mass. 404. Pa. St. 479; Sheldon v. Wright,.? 
 
 ' Lyne v. Sanford, 82 Tex. 58 ; Davis Barb. 39 ; Clark v. Costello, 59 N. J. L. 
 
 V. State, 17 Ala. 354 ; Gray v. Cruin, 234 ; Hart v. Clark, 64 Minn. 139 ; Pen- 
 
 36 id. 559 ; State v. Gibson, 31 Ark. nington v. Smith, 45 U. S. App. 409. 
 
 140; Stearns v. Stearns, 83 Vt. 678; 'Hardy v. Beaty, 84 Tex. 562, 31 
 
 Supreme Council of R. A. v. Carley, Am. St. Rep. 80; Knox Co. v. New 
 
 52 N. J. Eq. 642; Baldwin v. Baer, 10 York Nat. Bank, 147 U. S. 91 ; Cal- 
 
 Wash. 414; Garoutte v. Haley, 104 laghan v. Myers, 128 id. 617. 
 
604: ECLES OF EVIDENCE. 
 
 not to be defeated by the mere suggestion of a possible irregu- 
 larity.* This principle, however, ought not to be carried too 
 far; and it is not desirable to rest upon a mere presumption 
 that things were properly done when the nature of the case 
 will admit of positive evidence of the fact, provided it reaWy 
 exists.^ It is a principle that irregularity will not be presumed." 
 The judgment of courts of competent jurisdiction are presumed 
 to be well founded : '■^ Res judicata pro veritate accipitur" * and 
 their records to be correctly made.'^ Judges and jurors are 
 presumed to do nothing causelessly or maliciously." So oral 
 evidence is not receivable of what the accused or the witnesses . 
 said when before the com.mitting magistrate, Unless there be 
 positive proof that what they did say was not taken down in 
 writing,^ for the presumption of law is that the directions of 
 the statutes in that behalf were obeyed. A verdict is pre- 
 sumed to be correct.' 
 
 §15. Limited jurisdiction — Courts of. — Where proceed- 
 ings are taken by an inferior court, or are under special au- 
 thority granted to any tribunal in a special case or for special 
 purposes, or are not according to the course of the common 
 law, the jurisdiction is not presumed but must be shown.^ 
 But a judgment of a county judge authorizing the bonding 
 of a town is clothed with the same presumptions as adjudica- 
 tions of courts of record having general jurisdiction, as the 
 statute provides that it shall have the same force and effect 
 as the judgments of courts of record.'" But where a statute 
 
 iTolmiev. Thomson, 3 Crancli,C.C. 'SEv. Poth. 335, 336; Phillips v. 
 
 133; State v. Parish, 23 Miss. 483; Wimburu, 4 Car. & P. 273; Parsons 
 
 Merritt v. Baldwin, 6 Wis. 439; Red- v. Brown, 3 Car. & K. 295, 296. 
 
 niond V. Anderson, 18 Ark. 449 ; Hop- » Billiard on New Trials, ch. 2, § 2 ; 
 
 per V. Fisher, 2 Head, 253. United States v. White, 5 Craneh, 
 
 2 3 Ev. Poth. 336. C. C. 73 ; Pittsburgh R R Go. v. Ram- 
 
 'Maciaamara, Null. & Irreg. 43; say, 23 Wall. 332; Addington v. Allen, 
 
 Caance v. Rigby, 3 M. & W. 68 ; James 1 1 Wend. 374 ; Wagers v. Dickey, 17 
 
 V. Howard, 3 G. & Dav. 264. Ohio St. 439; Beale v. Com., 25 Pa. 
 
 «Co, Litt. 103a; Dig., lib. 50, tit. 17, St. 11; State v. Parish, 23 Miss. 483; 
 
 1- 207. Cochlin t. People, 93 111. 410. 
 
 5 1 Stark. Ev. 2.'52 (3d ed.); Read v. SGoulding v. Clark, 34 N. H. 148; 
 
 Jackson, 1 East, 355 ; Earl of Caruar- Jones v. Hunt, 90 Wis. 199; Rhodes 
 
 von V. Villebois, 13 M. & W. 313. v. Robie, 9 App. D. C. 305. 
 
 6 Anders, 47, pi. 34 ; Sutton v. John- w Hoag v. Greenwich, 133 N. Y. 153, 
 
 stone, 1 T. R. 493, 503 ; Fray v. Black- 44 N. Y. State Rep. 519. 
 Jaurn, 3 B. & S. 576, 578, n. 
 
PEESDMPTIVE EVIDENCE. 0')5 
 
 gives to county courts power to order the sale or partition of 
 real estate in certain cases and its act is attacked, there is no 
 presumption that everything necessary to the validity of the 
 judicial act has been done.^ The proceedings are under a 
 special authority delegated to the county court in a particular 
 case, and not under its general jurisdiction as a court of com- 
 mon law or of equity. And where by state statutes service 
 of process by publication is substituted in place of personal 
 service in certain actions and proceedings, that the statute 
 has been strictly followed must be proved, and no presumption 
 of jurisdiction will be indulged in.- "When the special powers 
 conferred are brought into action according to the course of 
 the common law, *. e., in the usual form, b}' regular process 
 and personal service where a personal judgment is asked, or 
 by seizure or attachment of the property where a judgment 
 in rem is sought, the same presumption of jurisdiction will 
 usually attend the judgments of the court as in cases falling 
 within its general powers.' But where the special powers 
 conferred are exercised in a special manner, or where the gen- 
 eral powers of the court are exercised over a class not within 
 its ordinary jurisdiction, upon the performance of prescribed 
 conditions, no such presumption of jurisdiction will attend the 
 jurisdiction of the court. The facts essential to the exercise 
 of the special jurisdiction must appear in such cases upon the 
 record. Such jurisdiction is not, therefore, the less to be strictly 
 pursued because the same court may possess over other sub- 
 jects or other persons a more extended and general jurisdiction. 
 
 VI. PEES0MPTIONS AS TO CARRIERS, BAILEES, ETC. 
 
 § 16. Negligence of. — Upon proof of delivery of goods to 
 common carriers and their loss b_v them, it is presumed that 
 they were lost by their negligence ; * and the same rule applies 
 to bailees for hire. But in the case of common carriers of pas- 
 sengers, as a general rule, some proof of negligence must be 
 given. To this rule there are many exceptions; as, where an 
 injury to a passenger results from the breaking down of a pas- 
 
 •Tolmie v. Thompson, 8 Cranch, s Harvey v. Tyler, 3 "Wall. 332. 
 
 133; Qoulding v. Clark, 34 N. H. 148 ; * Tarbox v. Eastern Steamboat Co., 
 
 Graham v. "Whitely, 26 N.J. L. 368. 50 Me. 339; Steamer Niagara v. Cor- 
 
 'Galpin v. Page, 18 Wall. 364; Mc- des, 31 How. (U. S.) 7; The Majestic, 
 
 Minn v. Wheian, 27 Cat 300 ; Com. 166 V. S. 375. 
 V. Blood, 97 Mass. 538. 
 
t5 
 
 60G KULES OF EVIDENCE. 
 
 senger coach, the breaking of a rail, the falling away of an 
 embankment, the breaking down of a bridge, a collision of 
 trains, etc., in such cases the law will presume negligence on 
 the part of the company until the contrary is shown.* But in 
 all cases it must be remembered that neither fault nor negli- 
 gence is to be presumed without some evidence upon which 
 to predicate it.^ In other words, the plaintiff must show an 
 injury which prima facie resulted from some fault on the part 
 of the defendant.' 
 
 § 17. In an accident case. — As a general rule negligence 
 must be proved and will not be presumed ; * and the proof of 
 the occurrence of an accident does not raise a presumption of 
 negligence,' where no contractual relation exists between 
 the parties,' especially when the accident is of a kind which 
 would not naturally result from negligent management. To. 
 throw upon a carrier the burden of disproving negligence in 
 a case of injury to a passenger, it must be shown that the 
 injury complained of resulted from the breaking of machinery, 
 collision, derailment of cars, or something improper or unsafe 
 in the conduct of the business.' Courts have no right to guess 
 that one alleged to have been killed by negligence was free 
 from fault;' and the presumption of negligence from the fact 
 of injury, if it arises at all, can arise only when defendants 
 have the actual management of the thing causing the injury 
 and fail to explain the cause,' and which in the ordinary 
 course of matters does not happen if those having the man- 
 agement use proper care.'" The plaintiff has the burden of 
 showing that defendant did not use due care.'* Thus, it is in- 
 cumbent upon a railroad employee who attributes his injury to 
 
 1 Pittsburg, etc. E. Co. v. Williams, Hawkins v. Front Street Cable Co., 
 
 74 Ind. 463. 28 Am. St. Rep. 73. 
 
 -Lyndsay v. Connecticut & Pass. ^Turnier v. Lathers, 59 Hun, 623, 
 
 River R. Co., 37 Vt 643 ; Talbott v. 86 N. Y. State Rep. 831 ; Bridges v. 
 
 West Virginia C. & P. R Co., 42 W, Tennessee C. & I. Co., 109 Ala. 287 ; 
 
 Va. 560 ; Alabama G. S. R Co. v. Mc- Price v. Philadelphia, W. & B. E. Co., 
 
 Donough, 97 Tenn. 255. 84 Md. 506. 
 
 'Terry V. New York C. R Co., 33 'Tliomas v. Philadelphia & R R 
 
 Barb., 574; Buel v. New York C. R Co., 148 Pa. St 180. 
 
 Co., 81 N. Y. 814. 8 Riordan v. Ocean Steamship Co., 
 
 ♦De Soucey V. Manhattan R Co., 134 N. Y.' 655, 83 N. Y. State Rep. 82&. 
 
 89 N. Y. State Rep. 79 ; Richmond & » Lennon v. Rawitzer, 57 Conn. 583 ; 
 
 D. R Co. V. Yeamans, 86 Vt 860. Gallagher v. Proctor, 84 Me. 41. 
 
 5 Bohr V. Lombard, 58 N. J. L. 233 ; i» Hill v. Scott, 88 Mo. App. 870. 
 
 11 Dowell V. Guthrie, 99 Mo. 653. 
 
PEES0MPTIVE EVroENCB. 607 
 
 the fact of brake-shoes being worn thin to prove the facts per- 
 mitting the inference that the brake could not be applied, or that 
 vvheii applied it was not as effective as it should or would have 
 been with thicker brake-shoes.' And whenever an employee 
 is connected with the act which injures him, the presumption 
 is not against the employer, but the employee must show that 
 he is without fault.' The mere fact that a passenger seated 
 in a car at an open window was struck on the arm by a mis- 
 sile, which he did not see and which could not be found, with 
 sufficient force to fracture the arm, does not raise a presump- 
 tion of the carrier's negligence.' It has been laid down as a 
 rule in many of the states that the fact that a damaging fire 
 was propagated by sparks from .a locomotive of a railroad 
 company raises a presumption of negligence, casting the bur- 
 den of proof on the company to show that the locomotive was 
 properly constructed and managed.* It has also been laid down 
 as a rule that the burden is on the railroad company, when 
 sued for the killing of an animal by a train, to acquit itself of 
 the charge of negligence.* 
 
 § 18. Innkeepers. — Where the goods of a traveler brought 
 into an inn are lost, it will be presumed to be through negli- 
 gence in the innkeeper, and the law casts on him the onus of 
 rebutting this presumption.' Rigorous as this law may seem, 
 and hard as it may actually be in one or two particular in- 
 
 • Smith V. New York C. & Hudson 20 Oreg. 3, 43 Am. & Eng. R. Cas. 11 ; 
 River R Co., 118 N. Y. 645, 80 N. Y. Eagle v. Chicago, M. & St P. R Co., 
 State Rep. 96 ; Texas & N. O. R Co. 77 Iowa, 661. 
 
 V. Crowder, 76 Tex. 499; Humphries * joyner v. South Carolina R Co., 
 
 V. Newport News & M. V. Co., 23 W. 26 S. C. 49 ; McDonald v. Montgomery 
 
 Va. 135; Hudson v. Charleston, C. & St. R. Co., 110 Ala. 161; Omaha St. 
 
 C. R Co., 104 N. C. 491. R Co. v. Martin, 48 Neb. 65 ; Heisey 
 
 '■'Western & A. R Co. v. Vandiver v. Rapho Tp., 181 Pa. St. 561. 
 (Ua.), 11 S. E. Rep. 781; Brunswick 6 story, Bailm., §g 473,473 (5th ed.) 
 
 V. Strilka, 30 111. App. 186; Wall v. Armistead v. Wilde, 17 Q. B. 261 
 
 Delaware, L. & W. R Co., 28 N. Y. Cashill v. Wright, 6 E. & B. 891 
 
 State Rep. 132, 54 Hun, 454; Foss v. Spice v. Bacon, 2 Q. B. D. 463 (C. A.) 
 
 Baker,' 62 N. H. 247; Texas & P. R. Read v. Amidon, 4l'Vt. 15, 18; Laird 
 
 Co. V. Barrett, 166 U. S. 617. v. Eichold, 10 Ind. 212; Kelsey v. 
 
 •'Thomas v. Philadelphia & R R Berry, 43 111. 469 ; Pinkerton v. Wood- 
 Co., 148 Pa. St 180; Niles v. N. Y. C. ward, 33 Cal. 557; Hulett v. Swift, 33 
 & H. R. R Co., 14 App. Div. 58. N. Y. 571 ; Wilkins v. Earle, 44 N. Y. 
 
 * Kelsey v. Chicago & N. W. R Co., 173.; Norcross v. Norcross, 53 Me. 163; 
 43 Am. & Eng. R Cas. 43; Daly v. Silbey v. Aldricb, 33 N. H. 553; Fuller 
 Chicago, M. & St P. R Co., 45 Minn. v. Coats, 18 Ol^io St 343, 350. 
 
 319 ; Koontz v. Oregon R & Nav. Co., 
 
608 EULES OF ETIBENCBw 
 
 stances, it is founded on the great principle of public utility, to 
 which all private considerations ought to yield. For travelers, 
 who must be numerous in a rich and commercial country, are 
 obliged to rely almost implicitly on the good faith of innkeep- 
 ers, whose education and morals are usually none of the best, 
 and who might have frequent opportunities of associating with 
 ruffians or pilferers, while the injured guest could seldom or 
 never obtain legal proof of such combinations, or even of their 
 negligence, if no actual fraud had been committed by them. 
 
 § 19. By shipSj etc. — Every ship insured on a voyage policy 
 sails under an implied warranty that she is seaworthy. If a 
 ship, shortly after sailing, turns out to be unfit for sea, without 
 apparent or adequate cause,, the burden of proof is thrown on 
 the assured ; and a jury ought to presume that the unseaworthi- 
 ness existed before the commencement of the voyage.' The im- 
 plied warrant of seaworthiness, however, does not extend to 
 time policies.^ As to this rule there is a conflict between Ameri- 
 can authorities.' But where a policy is effected on a vessel at 
 sea, there is at no time an implied warranty of seaworthiness.* 
 Where a vessel is missing and no intelligence of her has been 
 received within a reasonable time after she has sailed, it is to 
 be presumed that she foundered at sea.^ There is no precise 
 time for this presumption fixed, either by the common or gen- 
 eral maritime law,* although the laws of some countries have 
 peculiar provisions on the subject.' In admiralty a libelant in 
 a suit for negligence is not required to establish his own free- 
 dom from contributory negligence.' The explosion of the 
 boiler of a steam vessel \s prima facie evidence of negligence.' 
 So is the collision of one vessel with another;'" and damage to 
 
 1 Munro v. Vandam, Park, Ins. 333, Cush. 517 ; Macy v. Mutual Ins. Co., 
 note (a), 7th ed. ; Talcot t. Com. Ins. 12 Gray, 497. 
 
 Co., 3 Johns. 124, 4fi7; Cort V. Dela- »Park, Ins. (7th ed.); Green v. 
 
 ware Ins. Co., 2 Wash. C. C. 375; Brown, 3 Str. 1199; Houstman v. 
 
 Myers v. Gerard Ins. Co., 26 Pa. St Thornton, Holt, N. P. C. 243. 
 
 193. • 6 Park, Ins. 108 (7th ed.) ; Houstman 
 
 2 Gibson v. Small, 4 H. L. C. 353 ; v. Thornton, Holt, N. P. C. 248. 
 Thompson v. Hopper, 6 E. & B. 172, 'Park, Ins. 107 (7th ed.). 
 
 987 ; Dudgeon v. Pembroke, 3 App. 8 The Frank & Willis, 45 Fed. Rep. 
 
 Cas. 284. 494; The H. F. Dimock, 77 id. 236, 33 
 
 3 Jones V. Insurance Co., 8 Wall. Jr. U. S. App. 647 ; The Bucy, 42 TJ. S. 
 278; Hoxie v. Pacific Ins. Co., 7 App. 100. 
 
 Allen, 311; Hoxie v. Home Ins. Co., 'Grimly v. Hankins, 46 Fed. Rep. 
 32 Conn. 21. 400. 
 
 «Capen v. Washington Ins. Co., 13 "The Britannia, 43 Fed. Rep. 96; 
 
PEESUMPTIVE ETIDENCB. 609 
 
 a tow from contact with a pier in fair weather.^ In all cases 
 of collisions between steamers and sailing vessels, the former 
 are presumably in fault ; ^ but the burden is on the plaintiff to 
 show negligence.' The presumption attends every fault con- 
 nected with the management of a vessel and every omission to 
 comply with a statutory requirement, or with any regulation 
 deemed essential to good seamanship, that such fault or omis- 
 sion contributed to the collision. When a vessel has committed 
 a positive breach of statute she must show not only that prob- 
 ably her fault did not contribute to the disaster, but that it 
 could not have done so.* A sailing ship is presumed to be in 
 fault for a collision with another ship in a fog, by reason of her 
 not having a mechanical foghorn as required by the revised 
 international regulations.^ Where a tow-boat is injured by 
 collision between the tug to which it is attached and another 
 one, the burden of proof is .upon it to establish negligence 
 against each of the tugs separately and independently.^ The 
 burden of proof is on the owner to show that a vessel was in 
 good condition and suitable for the voyage at it^ inception.'' 
 
 § 20. By carriers as to passengers. — An accident to a 
 passenger is prima facie evidence of negligence on the part 
 of the carrier ; ' and the burden of explaining or accounting 
 for a collision or accident by which a passenger is injured or 
 killed is upon the carrier.' This rule applies to the collision 
 of an engine with an animal on the track j^" or from the 
 
 The Charles Hebard, 46 id. 137; The U. S. 435, 44 Alb. L. J. 33; Georgia 
 
 Normandia, 43 id. 151 ; Inland & S. R. R. Co. v. Love, 91 Ala. 481 ; Wynn v. 
 
 Coasting Co. v. Tolson, 139 U. S. 551. Central Park & N. E. R R Co., 133 N. 
 
 1 Western Assur. Co. v. The Sarah J. Y. 575 ; Murphy v. St. Louis, L M. & S. 
 
 Weed, 40 Fed, Eep. 844; Bouker v. R Co., 48 Mo. App. 843 ; Louisville, N. 
 
 Smith, id. 839. A. etc. R Co. v. Taylor, 126 Ind. 126 ; 
 
 ^The J. D. Peters, 43 Fed. Rep. 269. Dimraitt v. Hannibal & St. J. R Co., 
 
 8 John Spry Lumber Co. v. The C. 40 Mo. App. 654; Treadwell v. Whit- 
 
 H. Green, 76 Mioh. 320 ; Singleton v. tier, 80 Cal. 574. 
 
 Phoenix Ins. Co., 132 N. Y. 298, 44 N. » Chicago City R Co. v. Engel, 35 
 
 Y. State Rep. 414. 111. App. 490 : Magoffin v. Missouri P. 
 
 *The Martello v. Willey, 153 U. S. R Co., 103 Mo. 540 ; Coster v. Kansas 
 
 64; The Britannia v. Cleugh, id. 130. City Cable R Co., 42 Fed. Rep. 37. 
 
 STheMarteilov. Willey, 153 U.S. 64. lo Louisville, N. A. & C. R Co. v. 
 
 «McNaUy v. The L. P. Dayton, 130 Hendricks, 128 Ind. 462; Freeraont & 
 
 U. S. 337. E. M. V. R Co. v. French, 48 Neb. 638 ; 
 
 'Bradley Fertilizer Co. v. The Albion Lumber Co. v. De Nobra, 44 U. 
 
 Edwin L. Morrison, 153 U. S. 199. S. App. 847; Atchison, T. & S. F. R 
 
 'Glieson v. Virginia M. R Co., 140 Co. v. Elder, 57 Kan. 312. 
 39 
 
610 EDLES OF EVIDENCE. 
 
 derailment of a car;i or the separation of a train into two 
 parts; 2 or the sudden jerk of a train injuring a passenger.' 
 In short, where the cause of the injury to a passenger arose 
 from an apparatus wholly under the control of the carrier 
 and furnished and applied by it, an inference of negligence is 
 raised.* 
 
 § 21. Contributory negligence. — In New York, Illinois 
 and a few other states the plaintiff assumes the burden of 
 showing- that the injury occurred without fault on the part 
 of the person injured.' But the general rule in this country 
 is that the burden of proving contributory negligence is upon 
 the defendant, unless the plaintiff's testimony discloses such 
 negligence.* The general presumption is that persons of ma- 
 ture years and in possession of their senses are ordinarily 
 prudent and will use ordinary diligence to avoid danger;' 
 and the burden of proving voluntary exposure to danger as 
 a defense to an action is on the defendant.' But the rule that 
 where the negligence of a person is the ground upon which a 
 recovery of damages is sought, the burden of proof is on the 
 plaintiff, who must show the negligence of which he complains, 
 
 1 Alabama G. S. R Co. v. Hill, 93 ville, N. A. & C. R. Co. v. Stommel, 
 
 Ala. 514; Norton v. St Louis & H. R. 136 IdA 35; Baltimore & R. Tump. 
 
 Co., 40 Mo. App. 642 ; Ohio & M. R Road v. State, 71 MA 573. 
 
 Co. V. Voight, 123 Ind. 388; Kansas CGill v. Homrighausen, 79Wis. 634; 
 
 City, F. S. & M. R. Co. v. Stoner, 49 Waterman v. Chicago &' A. R. Co., 82 
 
 Fed. Rep. 309 ; Coke v. Long Island Wis. 613, 53 Amer. & Eng. R Gas. 593 ; 
 
 R Co., 65 Hun, 619, 47 N. Y. State Georgiq^ P. R. Co. v. Davis. 93 Ala. 300 ; 
 
 Rep. 200 ; North Chicago Street R Brodwell v. Pittsburg & W. E. R Co., 
 
 Co. V. Cotton, 140 111. 486. 139 Pa. St. 404; Griffith v. Baltimore 
 
 2 Louisville, N. A. & C. R Co. v. & O. R Co., 44 Fed. Rep. 574; Inland 
 
 Taylor, 126 Ind. 126. & S. Coasting Co. v. Tolscn, 139 U. S. 
 
 3 Murphy v. St Louis, L M. & S. R 551 ; Central R Co. v. Smith, 74 Mfl. 
 
 Co., 43 Mo. App. 343. 313; Vinson v. Chicago, St P., M. & 
 
 i Miller v. Ocean Steamship Co., 118 O. R Co., 47 Minn. 265. 
 
 N. Y. 199, 28 N. Y. State Rep. 874; ''Lyman v. Boston & M. R Co., 11 
 
 Baltimore & R. Turnpike Road v. L. R A. 364 ; Fugler v. Bothe, 43 Bio. 
 
 State, 71 Md. 573; Brinckhord v. App. 44; Phillip v. Milv^aukee & N. 
 
 Western U. Tel. Co., 58 Hun, 610, 35 R Co., 77 Wis. 349 ; Riordan v. Oceaa 
 
 N. Y. State Rep. 589. Steamship Co., 124 N. Y. 655, 36 N. Y. 
 
 5 Rodrian v. New York, N. H. & H. State Rep. 476. 
 
 R Co., 125 N. Y. 536, 35 N. Y. State SBudenfield v. Massachusetts Mut 
 
 Rep. 814; Mulligan v. New York Ace. Ass'n (Mass.), 20 Ins. L. J. 716; 
 
 Central & H. R. Co., 58 Hun, 602, 33 Phillip v. Milwaukee & N. R Co., 77 
 
 N. Y. State Rep. 534 ; North Chicago Wis. 349. 
 St R Co. V. Louis, 148 111. 9 ; Louis- 
 
PKESUMPTIVE EVIDENCE. Gil 
 
 applies in all cases except in the case of common carriers.^ And 
 the fact that an accident occurred which caused an injury is 
 not generally of itself sufficient to authorize an inference of 
 negligence.'" The getting on a moving train is prima facie 
 evidence of contributory negligence.' 
 
 § 23. As to property. — The burden in the first instance is 
 on the plaintiff suing a carrier for loss of or injury to goods 
 while in transitu to show the quantity and good condition of 
 the goods when shipped, and a failure to deliver the quantity 
 shipped, or a delivery in a damaged condition.^ But after 
 the plaintiff has shown a delivery of goods to a carrier and 
 that they were lost or damaged during the transit, the bur- 
 den is oast upon the carrier to show that such loss or injury 
 was not occasioned by his negligence or default,' or was 
 within the terms of an exception from liability in the bill of 
 lading.* A railroad company will be presumed to have de- 
 livered property in the same condition in which it was re- 
 ceived, in the absence of proof that it was delivered to it or 
 a connecting road in a condition different from that in which 
 it was delivered by the company.' But when the plaintiff 
 has shown that the goods were damaged after being shipped, 
 the burden of proof is cast upon the carrier to show that the 
 damage occurred on some other than its line, when the goods 
 were delivered to it to be shipped over its own and connect- 
 ing lines,* and that it safely transported the goods over its 
 own line and delivered them to the connecting carrier.' The 
 fact of breakage or leakage of casks of wine shipped by a 
 
 1 Pawling V. Haskins, 132 Pa. St. Chicago, M. & St. P. R Co., 79 Iowa, 
 617. 582; The Mascott, 51 Fed. Rep. COS; 
 
 2 Dobbins v. Brown, 119 N. Y. 188, Wilson v. California C. R Co., 94 Cal. 
 28 N. Y. State Rep. 957. 166. 
 
 3 Browne v. Raleigh & G. R Co., « Missouri P. R Co. v. China Mfg. 
 108 N. C. 34. Co., 79 Tex. 26. 
 
 * Cooper V, Georgia P. R Co., 92 Ala. ' Schaeffier v. Philadelphia & R R 
 
 329; Boehl v. Chicago, M. & St. P. R Co., 168 Pa. St. 209. 
 
 Co., 44 Minn. 191. 8 Union P. R Co. v. Marston. 30 
 
 5 Browning v. Goodrich Transp. Neb. 341 ; Flynn v. St. Louis & S. R. 
 
 Co., 78 Wis. 391 ; Louisville, N. A. & Co., 43 Mo. App. 424 ; Phoenix Clay 
 
 C. R. Co. V. Nicholai (Ind. App.), 45 Pottery Works v. Pittsburgh & L. E. 
 
 Alb. L. J. 412; Cummiug v. The Bar- R Co., 139 Pa. St 284. 
 
 racouta, 40 Fed. Rep. 498; Cliristie v. 9 Georgia P. R Co. v. Hughart, 90 
 
 The Craighton, 41 id. 62; Chapin v. Ala. 86. 
 
612 EULES or EVIDENCE. 
 
 carrier, in the absence of proof that the casks were of requi- 
 site strength to resist the ordinary handling, does not raise 
 any presumption of negligence ; ' neither does proof of the loss 
 of goods by fire.^ But the non-delivery of goods intrusted to 
 a bailee for hire to be transported to another place is pre- 
 sumptive evidence of negligence, and the burden of showing 
 the circumstances of the loss rests on the bailee.' 
 
 § 23. By railroad trains. — In some states it is held that 
 proof that a fire originated from sparks or cinders from a loco- 
 motive raises a presumption of negligence on the part of the 
 railroad company.* And a prima facie case of negligence, 
 made out by evidence that a train threw out the fire by which 
 property was damaged, cannot be rebutted by showing merely 
 that the machinery and appliances were of the proper char- 
 acter and in good condition, without showing that they were 
 handled with due care at the time the fire was thrown out.^ 
 A prima faoie case has been made out against a railroad com- 
 pany whenever it is shown that its road has not been fenced 
 and that an animal has passed upon the track and been killed 
 or injured;^ and the burden of proof is on the railroad com- 
 pany to show that animals killed upon its track at a place 
 where it was not fenced were pastured by the plaintiff on the 
 right of way.'' But the mere fact that an animal was killed 
 by a train raises no presumption of negligence on the part 
 of a railroad company or its servants.^ The fact that an iron 
 fell from an elevated railroad and injured a person there- 
 under raises a presumption of negligence on the part of the 
 
 1 Roth V. Hamburgh A. P. Co., 59 Co. (S. D.), 47 N. "W. Rep. 146 ; Fort 
 N. Y. Supr. Ct 49, 36 N. Y. State Scott, W. & W. R Co. v. Karracker, 
 Rep. 89; Draper v. Delaware & H. 46 Kan. 511 ; Logan v. Wabash W. R. 
 C. Co., 118 N. Y. 118, 27 N. Y. State Co., 43 Mo. App. 71 ; Biering v. Gulf, 
 Rep. 931. C. & S. F. R. Co., 79 Tex. 584. 
 
 2 Louisville & N. R. Co. v. Man- 5 Johnson v. Northern P. R. Co., 1 
 Chester Mills, 88 Tenn. 653. N. D. 354 ; Greenfield v. Chicago & 
 
 3 Wheeler v. Oceanic Steam Nav. N. W. R. Co., 88 Iowa, 370. 
 
 Co., 125 N. Y. 155, 43 Alb. L, J. 129; 6 Missouri P. R Co. v. Baxter, 45 
 
 Board v. Illinois C. R Co., 79 Iowa, Kan. 520. 
 
 518 ; Louisville & N. R. Co. v. Wynne. ' Randall v. Richmond & D. R Co., 
 
 88 Tenn. 320; Onderkirk v. Central 107 N. 0. 748; Heller v. Abbott, 79 
 
 Nat. Bank, 119 N. Y. 363, 29 N. Y. Wis. 409. 
 
 State Rep. 573. . 8 Atchison, T. & S. F. R Co. v. 
 
 * White V. Chicago, M. & St P. R Walton, 3 N. M. 319. 
 
PEE8UMPTIVE EVIDENCE. 613 
 
 company.' But the presumption of negligence on the part of 
 a railroad company which prevails in the case of an injury to 
 its passengers does not obtain in case of injuries to person 
 or property crossing a railroad track by collision with a train. 
 "When a person is thus injured the fault is prima faoie his 
 own; and he must show affirmatively that his fault or negli- 
 gence did not contribute to the injury before he can recovei* 
 therefor; 2 and the rule is not relaxed in favor of one who was 
 being carried in a vehicle owned and driven by another at the 
 time of the accident.' Fire communicated by sparks from an 
 engine makes a prima facie case of negligence.* 
 
 VII. OFFICIAt, ACTS PRESUMPTIONS OF AtJTHOEITT. 
 
 § 24r. Proof of offlciAl capacity.— The presumption is that 
 one who is proved to have acted in an official capacity pos- 
 sessed the necessary and proper authority ; ^ as that he was 
 regularly appointed or elected as required by law.' That he 
 has acted notoriously as a public officer has been deemed 
 prima faow evidence of his character, without producing his 
 commission or appointment.' This rule is in accordance with 
 and embodied in the maxim, omnia prmsumuntur rite esse 
 acta, and is regarded as one of the most important presump- 
 tions of the law.* In obedience to this presumption, the bur- 
 den is always upon the party alleging it to show a neglect of 
 official duty or irregularity in its performance.' The mere 
 
 iVolkmar v. Manhattan R. Co., fayette, 49 Fed. Eep. 807; Cronk v. 
 
 134 N. Y. 418, 31 N. Y. State Rep. 172 ; Chicago, M. & St P. R. Co. (S. D.), 54 
 
 Maher v. Manhattan R. Co., 53 Hun, Am. & Eng. R. Cas. 525. 
 
 506, 26 N. Y. State Rep. 743; Mosse- 5 Darnings v. Supreme Lodge K. of 
 
 tnanu v. Manhattan R. Co., 33 id. 61, P., 131 N. Y. 523, 43 N. Y. State Rep. 
 
 16 Daly, 249. 872 ; J. v. Carthage, 48 Me. 353 ; Ham- 
 
 ^Beckwith v. New York C. & H. lin v. Dingman, 5 Lans. 61; Nelson v. 
 
 R. R. Co., 125 N. Y. 759 ; Terre Haute People, 33 N. Y. 393. 
 
 & I. R Co. V. Cleru, 123 Ind. 15; SMcClaskey v. Barr, 47 Fed. Eep. 
 
 Thomas v. Citizens' Pass. E. Co., 132 154 ; Hathaway v. Addison, 48 Me. 
 
 Pa. St. 504. 440; Eaton v. White, 18 Wis. 518; 
 
 ' Brickell v. New York C. & H. R Cooper v. Moore, 44 Miss. 386. 
 
 R Co., 120 N. Y. 390, 30 N. Y. State "' Jacob v. United States, 1 Brock. 
 
 Rep. 933. 528 ; State v. Perkins, 24 N. J. L. 409. 
 
 * Polhaus V. Atchison, T. & S. F. E. 8 pinkham v. Cockell, 77 Mich. 365 ; 
 
 Co., 45 Mo. App. 153. And see Sug- Taylor on Ev. 156. 
 
 armann v. Manhattan Elev. E. Co., 9 Jackson v. Fidelity & C. Co., 41 
 
 43 N, Y. State Eep. 80; Eddy v. La- U. S. App. 553; Biddle v. Riverton, 
 
614 EULES OF EVIDENCE. 
 
 claim to be a public officer, and the performance of a single 
 or even a number of acts in that character, will not necessa- 
 rily in all cases constitute a person an officer de facto; but 
 there must generally be some color of appointment or elec- 
 tion, or an acquiescence on the part of the public for a length 
 of time which affords a presumption of such appointment or 
 election.! In actions against an officer by proof of such acts, 
 he is estopped from denying his official character or that he 
 has not signed his report.^ An officer de facto is one whose acts, 
 though he was not a lawful officer, the law, upon principles of 
 policy and justice, will hold valid so far as they involve the 
 interests of the public and third persons ; ' but the presump- 
 tion that public officers have done their duty is not a substi- 
 tute for proof of an independent and material fact.* The fact 
 that it was the duty of a judge to publish notice of an election 
 raises no presumption that the notice was in fact published;' 
 and a presumption that a request for aid was made by one 
 assisted by public officers as a poor person will not be made 
 as a foundation of an alleged right to recover compensation 
 therefor from her estate.^ 
 
 VIII. PEBS0MPTION THAT THE USUAL COOKSE OF BUSINESS "WAS 
 
 FOLLOWED. 
 
 In commercial transactions the presumption is that the 
 usual course of business was followed by the parties thereto. 
 Thus, where a sum expended by a husband on his wife's prop- 
 erty is not in excess of her separate income received by him, 
 the presumption is that he applied her income and not his 
 earnings to the improvement of the estate;'' so the giving of 
 a promissory note is prima facie evidence of an accounting 
 and settlement of all demands between the parties ; ' and the 
 
 58 N. J. L. 289; Nofire v. United 2 Board of Control v. Rogers, 48 
 
 States, 164 U. S. 657 ; Dobbs v. Jus- La. Ann. 1061. 
 
 tices, etc., 7 Ga. 634 ; Schley v. Jones, ' State v. Carroll, 38 Conn. 449. 
 
 131 Pa. St. 63 ; Collins v. Valleau, 79 * United States v. Carr, 132 U. & 644. 
 
 Iowa, 631 ; Paul v. Malone, 87 Ala. » Tool v. State, 88 Ala. 158. 
 
 544; State v. Woodward, 138 Ind. 30; 6 Albany v. McNamara, 117 N. Y. 
 
 Wilkins v. Tourtellott, 43 Kan. 176; 168, 27 N. Y. State Rep. 165. 
 
 Washington v. Hosp, 43 id. 334. 7 Dickson v. Shay, 45 N. J. Eq. 831. 
 
 1 Wilcox V. Smith, 5 Wend. 231. « Davis v. Gallagher, 124 N. Y. 484, 
 
 28 N. Y. State Rep. 883. 
 
PKESUMPTIVE EVIDENCE. 615 
 
 presumption is 'that services rendered for the benefit of the 
 estate of a married woman, of which she knows at the time, 
 were rendered at her request.^ 
 
 IX. AGEEEMENT TO PAT FOE SEEVICES PEESUMED WHEN. 
 
 An agreement to pay for services rendered and accepted is 
 presumed unless the parties are members of the same family 
 or near relatives.^ Under certain circumstances, where one 
 man labors for another, a presumption of fact will arise that 
 the person for whom he labors is to pay him the value of his 
 services. But where the services are rendered between mem- 
 bers of the same family no presumption will arise. The law 
 takes notice very properly of the customs of hospitality and 
 friendly intercourse usual among mankind.' It is proved that 
 medical services were rendered by A., a physician, to B., de- 
 ceased. The law presumes a promise by B. to pay for them. 
 On the marriage of A. to B. the former goes to live with B.'s 
 father by invitation without any agreement as to payment of 
 board for himself and wife. There is no presumption that he 
 agreed to pay board.* A step-father assumes the parental re- 
 lation towards B., an infant, the child of his wife by another 
 husband. B. renders services to the step-father. There is no 
 presumption of a promise to pay by either party.' The same 
 rule holds good as between brothers.^ L. is the mother of 
 K.'s wife and lives with them for ten years. There is no pre- 
 sumption of an agreement by her to pay for board, etc., dur- 
 ing this time.' 
 
 1 Carter v. Morris, 36 N. Y. State 6 Williams v. Hutchinson, 3 N. Y. 
 Eep. 508, 116 N. Y. 310. 313; Andrews v. Foster, 17 Vt. 556. 
 
 2 Grant v. Grant, 109 N. C. 710. « Bowen v. Bowen, 3 Bradf. 836 ; 
 
 3 Grant v. Grant, 109 N. C. 710. Fitch v. Peckham, 16 Vt. 150. 
 * Wilcox V. Wilcox, 48 Barb. 337. ' King v. Kelley, 38 Ind. 89. 
 
CHAPTEE XYIL 
 
 PRESUMPTIVE EVIDENCE (Contintjed). 
 
 § 1. Presumption'" as to negotiable 
 paper. 
 
 2. Presumption as to considera- 
 
 tion of commercial paper. 
 
 3. Presumption as to protest of 
 
 bills or notes. 
 
 4. Presumption as to receipt of 
 
 letter from mailing. 
 
 5. Presumption as to documents 
 
 regular on their face. 
 
 6. Presumption as to correctness 
 
 of date. 
 
 7. A person presumed to act hon- 
 
 estly. 
 
 8. Presumption as to marriage. 
 
 9. Presumption as to legitimacy. 
 
 10. Presumption against a spoli- 
 
 ator. 
 
 11. Alteration, suppression, de- 
 
 struction or manufacturing 
 of evidence. 
 
 12. Presumption of continuance of 
 
 things. 
 
 13. Domicile, residence, solvency, 
 
 infancy, partnership. 
 14 Sanity or insanity. 
 
 15. Character and habits of per- 
 
 sons. 
 
 16. Presumptions not retrospective. 
 
 17. Presumption of life. 
 
 18. Persons presumed to be dead 
 
 when. 
 
 19. Absentees — Who are. 
 
 20. Not been heard of — Meaning of. 
 
 21. Absentee's residence — Mean- 
 
 ing of. 
 
 23. Presumption of death before 
 
 seven years. 
 28. When presumption of death 
 after seven years does not 
 arise. 
 
 24. Presumption of survivorship of 
 
 persons who perished in same 
 accident 
 
 25. Where age, sex or health may 
 
 raise a presumption of sur- 
 vivorship. 
 
 26. Presumption of identity. 
 
 PEESUMPTION OP INTENT. 
 
 27. In general. 
 
 28. Revocation of will. 
 
 29. When the doing of an act does 
 
 not raise a presumption. 
 SO. A person is presumed to do 
 
 what he has the right and 
 
 power to do. 
 31. Presumptions from the couree 
 
 of nature. 
 33. A person is presumed to do 
 
 what it is his interest to do. 
 
 33. Presumption of payment. 
 
 34. Other than by lapse of time. 
 
 § 1. Presumptions as to negotiable paper. — Negotiable 
 paper is presumed to have been regularly negotiated, and to 
 be or to have been regularly held, except where it was pro- 
 cured or put in circulation through fraud or duress and is 
 illegal.' The law was thus framed and has been so adminis- 
 
 1 Palmer V. Mt. Sterling Nat. Bank, art V, ch. 612, N. Y. Laws, 1897 ■ 
 13 Ky. L. Rep. 790 ; Garrigus v. Home Smith v. Shippey, 183 Pa. St 34 
 F. & F. Mis. See, 3 Ind. App. 91 ; § 98, 
 
PEESUMPTIVE ETIDENOB. 617 
 
 tered in order to encourage the free circulation of negotiable 
 paper by giving confidence and security to those who receive 
 it for value; and this rule is so comprehensive that the title 
 and possession are considered as one and inseparable; and in 
 the absence of any explanation the law presumes that a party 
 in possession holds the instrument for value until the con- 
 trary is made to appear.^ It is also presumed-that the holder 
 of a promissory note is a hona fide holder for value re- 
 ceived ; ^ that it was transferred to the plaintiff on the day of 
 its date;' and where the note is indorsed without date, the 
 presumption is that the indorsement was made before the 
 note became due.* One alleging simulation or illegality in 
 the consideration of a transfer of a promissory note must 
 prove his allegations.' To cast the burden upon the holder 
 of a note to prove that he became the owner in good faith 
 before maturity and for value, the evidence must show that it 
 was procured by fraud and not merely without consideration.* 
 The ordinary presumptions in favor of innocent holders of 
 negotiable paper acquired before maturity are modified as to 
 a note shown to have had a fraudulent inception ; and where 
 it is shown that the note was procured by fraud, or that it 
 was otherwise illegal in its inception, the plaintiff has the 
 onus of showing that he took it hona fide for value before 
 due and without any notice of the illegality.' The defendant 
 may show the facts attending the execution of commercial 
 paper, and proof of such defense imposes upon plaintiff the 
 burden of proving himself to be a tona fide holder for value ; ' 
 
 1 Perot V. Cooper, 17 Colo. App. 80, « Galvin v. Meridian Nat. Bank, 120 
 31 Am. St. Rep. 258 ; Tourtellotte v. Ind. 439 ; Herman v. Gunther, 83 Tex. 
 Brown, 1 Colo. App. 408 ; Crabtree v. 66, 29 Am. St Rep. 632. 
 
 Atchison, 13 Ky. L. Rep. 321; Nott 'Joy v. Defendorff, 130 N. Y. 6; 
 
 V. Thomas, 35 S. C. 461 ; Crow v. Co- Auerbach v. Peetsch, 44 N. Y. State 
 
 nant, 90 Mich. 247, 30 Am. St. Rep. 427; Rep. 493 : Ross v. Drinkhard, 35 Al!». 
 
 First Nat. Bank V. Green, 43 N. Y. 298. 434; Cover v. Mayors, 23 Ark. 850; 
 
 2 Lehinan v. Tallahassee Mfg. Co., 64 Fuller v. Hutchins, 10 Cal. 523 ; Haz- 
 Ala. 567: Re Callister, 153 N. Y. 294. ard v. Spencer, 17 R. I. 561. 
 
 3 Noxon V. De Wolfe, 10 Gray, 343 ; 8 Ogden v. Pope, 44 N. Y. State Rep, 
 Hendricks v, Judah, 1 Johns. 319. 646 ; Smith v. Goodrich, 167 111. 46 ; 
 
 *Tome V. Gerloch, 64 Hun, 635,46 Isreal v. Gale, 77 Fed. Rep. 532, 45 
 
 N. Y. State Rep. 485 ; Walker v. Davis, U. S. App. 219 ; Jones v. Wiesen, 50 
 
 33 Me. 516. Neb. 243 ; John Hancock Mut. L. Ins. 
 
 ' Newman v. Irwin, 43 La. Ann. Co. v. Huron, 80 Fed. Rep. 653. 
 1114. 
 
618 EULES OF EVIDENCE. 
 
 and evidence that the note in suit \fras stolen puts plaintiff 
 upon proof of the hona fides of his holding.' 
 
 § 3. Presumption as to consideration of note. — Value re- 
 ceived need not appear on the face of a note, as those words 
 express only what the law implies. In other words, a consid- 
 eration is implied from the character of the instrument. It is 
 not necessary to allege or prove consideration in an action 
 upon a note, whether negotiable or not. A promissory note 
 is defined to be a written engagement by one person to pay 
 absolutely and unconditionally to another person therein 
 named, or to the bearer, a certain sum of money at a specified 
 ■time, or on demand.^ 
 
 § 3. Presumption of protest of bills or notes. — "While, as 
 a general rule, where the holder of negotiable paper has been 
 guilty of laches, and that fact appears on the trial in an action 
 against an iadorser or drawer, the holder cannot recover on a 
 subsequent promise without showing that the promise was 
 made with full knowledge of the laches, where the fact of 
 laches does not appear, a promise by an indorser or drawer 
 after maturity to pay the note or bill is presumptive proof of 
 demand and notice. The theory is said to be that presump- 
 tively a man will not promise to pay without knowing that 
 he is liable. The evidence is received for the purpose of show- 
 ing that there has been no laches. And although there is no 
 proof at all of the manner of presentment and demand, the 
 promise of the indorser or drawer is presumptive evidence of 
 a legally formal demand and notice. So proof of a direct or 
 conditional promise to pay after a bill becomes due, of a par- 
 tial payment, or of an offer of a composition, or of an acknowl- 
 edgment of his liability to pay the bill, has been held to be 
 competent evidence to go to a jury of a regular notice of the 
 dishonor of a bill, and to warrant a jury in presuming that 
 the regular notice had been given.' 
 
 § 4. Mailing notice — Presumption as to. — The mailing of 
 a letter properly directed to a party to be charged raises a pre- 
 
 1 Bemis v. Hovner, 165 111. 847 ; 38 N. Y. State Rep. 56 ; § 320, art. 
 Kneeland v. Braintree St. R. Co., 167 XVII, ch. 612, N. Y. Laws, 1897. 
 Mass. 161 ; Blue Valley Lumber Co. ' 2 Parsons on Bills and Notes, 497 ; 
 V. Smith, 48 Neb. 293 ; Wing v. Ford, First Nat. Bank. etc. v. Moffatt, 39 N. 
 89 Me. 140; Claffy v. Farrow, 44 N. Y. Y. State Rep. 668: Douglas v. Bank 
 State Rep. 789. of Commerce, 07 Tenn. 133 ; Glidden 
 
 2 Cooledge v. Ruggles, 15 Mass. 387 ; v. Chamberlin, 167 Mass. 486. 
 Carnright v. Gray et al., 127 N. Y. 92, 
 
PKESUMPTIVE EVIDENCE. 619 
 
 sumption that it is received ; for it is presumed that letters 
 sent by post to a party, at his residence, are received by him 
 in due course. But this is a presumption of fact and not of 
 law, and may be repelled by proof. Notice by mail of the 
 dishonor of commercial paper is in most cases sufficient by the 
 law merchant to charge an indorser. It is part of the con- 
 tract that notice may be given in this way, and it is not mate- 
 rial in fixing the liability of the indorser whether he receives 
 it or not.' 
 
 § 5. Presumption as to documents regular on tlieir face. 
 An ancient will found in the proper custody and executed in 
 the .manner provided by law under certain circumstances will 
 be presumed to have been executed under such circumstances 
 and to be valid.' Documents regular on their face are pre- 
 sumed to have been properly executed and to have undergone 
 all formalities essential to their validity.' Thus, where a 
 person's signature to a deed is proved, the sealing and deliv- 
 ery of the deed is presumed.* It is also presumed that it was 
 delivered on the day it bears date." Where the consideration 
 of a deed is not expressed, the presumption is that it was the 
 value in money of the property.^ The law also presumes that 
 a paper was stamped as the law requires.' 
 
 § 6. Presumption as to correctness of dates. — Dates 
 found in written instruments are presumed to be correct. 
 Thus, the presumption is that a letter was written at the time 
 it bears date;* that a bill of exchange was issued at the time 
 it bears date; that a receipt was made on the day it bears 
 date ; and that a deed was executed on the day it bears date.' 
 The presumption is that a bill or note indorsed in blank was 
 indorsed on the day of its date or before due.'" 
 
 § 7. A person presumed to act honestly. — Fraud is never 
 presumed, either at law or in equity." And the defendant in 
 
 1 Austin V. Holland, 69 N. Y. 576. " Clements v. Landman, 26 Ga. 401. 
 
 2 Gildersleeve v. N. M. M. Co. (N. M.), ' Bradlaugh v. De Ren, L. R. 3 C. P. 
 37 Pac. Rep. 318 ; Koegel v. Egner, 54 386 ; Thayer v. Barney, 12 Minn. 513. 
 N. J. Eq. 623; Templeton v. Luckett, 41 » Pullen v. Hutchinson, 35 Me. 249. 
 V. S. App. 392 ; Baacke v. Baacke, 50 ^ Smith v. Porter, 10 Gray, 66 ; Cos- 
 Neb. 303; Williams v. Conger, 135 U. S. tigan v. Gould, 5 Denio, 390 ; Knisley 
 397; Nat Com. B'k v. Gray, 71 Hun, 295. v. Sampson, 100 111. 573. 
 
 3 Munroe v. Gates, 48 Me. 461. i" Benthall v. Judkins, 13 Mete. 265 ; 
 * Andrews v. Motley, 13 C. B. (N. S.) Hutohins v. Flintge, 3 Tex. 473. 
 
 526, 11 Calhoun t. McKnight, 44 La. Ann. 
 
 5 People V. Snyder, 41 N. Y. 397 ; 575 ; Wright v. Prescott, 3 Barb. 196. 
 Smiley v. Fries, 104 111. 416. 
 
620 EULES OF EVIDENCE. 
 
 an action for fraud is entitled to the application of the rule 
 that the presumptions are in favor of the innocence of the ac- 
 cused;' and it seems that fraud will not be implied by reason 
 of the relationship of the parties to a conveyance, although it 
 may lessen the effect of their statements when other circum- 
 stances exist pointing to fraud.^ There is no presumption of 
 honesty in a transaction by which the title of a cestui que 
 trust is divested and invested in the trustee, when the relation 
 of the parties appears on the face of the instrument.' A con- 
 fession of judgment to a creditor for a debt will be presumed 
 to have been taken by the creditor for his own benefit, and 
 not to defraud other creditors.* Acts of defendant in an ac- 
 tion for divorce which might appear suspicious and improper, 
 but are capable of an innocent interpretation, must be so con- 
 strued.' The presumption of innocence of a person charged 
 with a criminal offense continues through the trial, and all 
 the evidence is to be reconciled with this presumption." Thus, 
 the presumption is that a man and woman who live and co- 
 habit together are married.'' But it is different where a negro 
 and a white woman live together, in a state where marriages 
 between them are prohibited. "Where, after a husband and 
 wife separate, the former goes and lives with another woman, 
 the presumption is that he has obtained a divorce.* So where 
 A. marries C, having a husband, B., living, and B. subse- 
 quently dies, and A. and C. continue to cohabit, the presump- 
 tion is that they have been married after B.'s death.^ 
 
 1 Hatch V. Spooner, 59 Hun, 635, ^ Knower v. Central Nat. Bank, 124 
 37 N. Y. State Rep. 151 ; Geresche v. N. Y. 652, 37 N. Y. State Rep. 89. 
 McDonald, 103 Mo. 1 ; Re Davis' Es- = Stefifens v. Steflfens, 33 N. Y. State 
 tate, 10 Mont. 238 ; Kenosha Stove Rep. 643, 16 Daly, 363 ; Fenno v. Han- 
 Co. V. Shedd, 83 Iowa, 540 ; Smith v. nan, 137 N. Y. 635; Hampton v. Hamp- 
 Ogilvie, 137 N. Y. 143, 38 N. Y. State ton, 87 Va. 148. 
 
 Rep. 150 ; Schreyer v. Soott, 134 U. S. 6 Farley v. State, 137 Ind. 419 ; Gib- 
 
 405 ; Farrar v. Churchill, 133 id. 609 ; son v. State, 89 Ala. 121 ; Panama R 
 
 Bernheimer v. Rindskofi, 116 N. Y. Co. v. Johnson, 58 Hun, 557, 35 N. Y. 
 
 428. State Rep. 560. 
 
 2 Martin v. Fox, 40 Mo. App. 664 ; 7 Post v. Post, 70 111. 484. 
 Oliphant y. Leversidge, 143 111. 160. 8 Blanchard v. Lumbert, 43 Iowa, 
 
 3 Winter v. Truax, 87 Mich. 334, 34 228. 
 
 Am. St. Rep. 160; White v. Johnson, 9 Jackson v. Clark, 18 Johns. 347. 
 4 Wash. 113. 
 
PEESDMPTIVE ETIDENCE. 621 
 
 § 8. Presumption as to marriage. — The presumption is 
 that when a man and woman live together as husband and 
 wife, and declare themselves to be such, they are lawfully- 
 married; and their children born while so living are legiti- 
 mate.' And the fact of cohabitation as man and wife raises 
 a presumption of legal marriage ; ^ but a relation illicit at its 
 commencement, and known to be so by the parties, raises no 
 presumption of marriage ; ' and the presumption is that the 
 illicit relation continues.^ 
 
 §9. Presumption of legitimacy. — A person born during 
 the continuance of a valid marriage between his mother and any 
 man, or within such time after the dissolution thereof, and be- 
 fore the celebration of another valid marriage, that his mother's 
 husband could, according to the course of nature, have been 
 his father, is presumed to be the legitimate child of his mother's 
 husband.' The rule is the same where the child is born in 
 wedlock, whether begotten before or after the marriage ; and 
 where the mother is visibly pregnant at the time of the mar- 
 riage, the presumption is not rebuttable ; for a man who mar- 
 ries a woman whom he knows to be in that condition is to 
 be considered as acknowledging by a most solemn act that 
 the child is his.' 
 
 § 10. Presumptions against a spoliator. — The omission of 
 a party to an action to testify to facts or to produce evidence 
 in explanation of or to contradict adverse testimony raises a 
 presumption against his claims, unless the evidence is not 
 peculiarly within his power.' It is a maxim that all evidence 
 is to be weighed according to the proof which it was in the 
 power of one side to have produced and in the power of the 
 other to have contradicted.* To smother evidence is not 
 much better than to fabricate. The presumption in odui,m 
 s^oUatoris is perfectly legitimate. It is so natural and so just 
 
 1 Robinson v. Taylor, 42 Fed. Rep. « Montgomery v. Montgomery, 3 
 
 803; Jones v. Gilbert, 135 111. 27. Barb. Ch. 133; McNeely v. McNeely, 
 
 estate V. Schwitzer, 57 Conn. 532; 47 La. Ann. 1321. 
 
 Hiler v. People, 156 111. 511. '' Warner v. Litzinger, 45 Mo. App. 
 
 3 Grimm's Appeal, 131 Pa. St. 199. 106 ; Lawrence v. Lawrence, 15 Fed. 
 
 * White V. White, 82 Cal. 427; Rep. 635; Dowdy v. McArthur, 94 
 
 Richardson's Appeal, 133 Pa. St 392 ; Ga. 577. 
 
 Cole V. Cole, 153 111. 585. ' McDonough v. O'Neil, 113 Mass. 92; 
 
 5 Stephen's Ev. art. 98; CaujoUe v. Tanton v. Keller, 167 111. 129. 
 Ferrie, 23 N. T. 90. 
 
622 EULES OF EVIDENCE. 
 
 that it is part of every civilized code. It ought to be under- 
 stood that where a party has the subject-matter of the con- 
 troversy under his exclusive control, it is never safe to refuse 
 the witnesses on the other side an opportunity to examine it.' 
 Thus, the failure in an answer to state a fact material to a 
 defense raises the presumption that such fact does not exist.^ 
 And the failure of a defendant to answer plaintiff's averments 
 is an element proper to be considered, with other evidence 
 in the case, in determining their truth.' Where a party has 
 in his possession evidence which would illustrate his case, 
 and fails to produce it, the presumption will be against him.* 
 But it is not sufficient to supply independent evidence of a 
 fact which is wholly unproved by other evidence.' Thus, 
 where the defendant neglects or refuses to produce witnesses 
 in charge of his vessel when an accident happened, the pre- 
 sumption is that they would not help him.* So where A. re- 
 fuses to produce a deed which is part of a title which he 
 claims, the law presumes that, if produced, the deed would 
 injure his claim.' These presumptions are received on the 
 ground that he who withholds the truth does so because he 
 knows that it will work against him, and that no man prefers 
 darkness to light, except because he is conscious that his deeds 
 are evil.' The rule that the failure of defendant to testify 
 shall not be considered against him applies only to criminal 
 cases.' 
 
 § 11. Alteration, suppression, destruction or manufact- 
 uring of evidence. — The maxim omnia contra spolialoreri 
 embraces most frequently cases of the destruction of written 
 
 1 state V. Keith, 47 Minn. 559. 5 Diel v. Missouri P. R Co., 37 Mo. 
 
 2 Cheney v. Dunlap, 27 Neb. 401. App. 454 ; Pollak v. Davidson, 87 Ala. 
 
 3 Schney v. Schaeflfer, 130 Pa. St 16 ; 551. 
 
 Van Slyke v. Chicago, St. P. & K. C. 6 ViUe de Havre, 7 Bin. 328. 
 
 R. Co., 80 Iowa, 620 ; Lake v. Nolan, ' See Barber v. Lyons, 32 Barb. 62 ; 
 
 81 Mich. 112 ; Freemont Cultivator Co. Heath v. Waters, 40 Mich. 457 ; Brown 
 
 V. McCanny, 80 Ga. 343. v. Schock, 77 Pa. SL 471. 
 
 4 Fitschen v. Thomas, 9 Mont. 53 ; 8 Winer v. Smith, 23 Oreg. 469 ; 
 McGuire v.. Joslyn, 57 Hun, 586, 81 Gulf, Colorado & Santa Fe R. Co. v. 
 N. Y. State Rep. 990 ; Reavis v. Oren- Bax, 81 Tex. 670 ; Bradley v. Walker, 
 show, 105 N. C. 869 ; Dorsey v. Picke, 188 N. Y. 291 ; State v. Keith, 47 Minn. 
 57 Hun, 580, 32 N. Y. State Rep. 858 ; 559. 
 
 Schmidt v. Keehn, 136 N. Y. 528; ^Barnett v. Glutting, 8 In d. App. 
 
 Cole V. Lake Shore & M. S. R Co., 415 ; Shaw v. Smithes, 167 111. 369. 
 81 Mich. 156; Bradford v. Malo, 43 
 Kan. 54. 
 
PRESUMPTIVE EVIDENCE. 623 
 
 evidence. Manufacturing evidence also falls within this rule.^ 
 Thus, where a lapidary refuses to return a jewel given him 
 for inspection, the law presumes that it was of the finest 
 quality. So where A. is prevented by acts of B. from show- 
 ing the quality of wool for the taking of which he brings 
 suit, B. is liable for the value of the best quality of such 
 goods.' The voluntary destruction of a document raises 
 prima facie a presumption of fraud, and precludes the spo- 
 liator from giving secondary evidence of its contents in the 
 absence of a legal excuse for its destruction. Thus, where 
 the holder of a note burns it, or tears off a writing attached,^ 
 he cannot prove its contents by parol.' It would be in viola- 
 tion of all the principles upon which inferior and secondary 
 evidence is tolerated to allow a party the benefit of it who- 
 has wilfully destroyed the higher and better evidence. But 
 where the destruction was the result of mistake, accident or 
 some fault not amounting to a fraud, there is a legal excuse.* 
 § 12. Presumption of continuance of things. — Eesidence 
 at any time being shown, there is a presumption that it still 
 continues.' In other v/ords, a residence once established is pre- 
 sumed to continue until there is satisfactory evidence that it has- 
 been abandoned.^ Proof that land was unoccupied at a certain 
 time creates a presumption that it continued unoccupied until 
 a later time.' So a highway shown to have existed will be pre- 
 sumed not to have ceased to be such.^ A derangement of 
 mind shown to exist at any particular period is presumed to- 
 continue until disproved.' A person shown to have been the 
 owner of bonds will be presumed to have continued to own 
 them in the absence of evidence to the contrary." Possession 
 or ownership of either realty or personalty, non-possession or 
 loss, debts and other conditions of property or things once 
 
 • Costigan v. Mohawk, etc. R Co., 3 Co., 17 App. Div. 393; Hill v. Hill, 166. 
 Denio, 600; State v. Keith, 47 Minn. 559. 111. 54 ; Gage v. fhompson, 161 id. 483. 
 
 2 Bailey v. Show, 34 N. H. 300 ; ' Geisinger v. Bey), 80 Wis. 443. 
 
 Preston v. Leaughton, 6 Md. 88. 8 Cohoes v. Delaware & H. C. Co., 
 
 'Price V. Tallmau, 1 N. J. L. 447; 134 N. Y. 397, 47 N. Y. State Rep. 612, 
 
 Blode V. Noland, 13 Wend. 173. 46 Alb. L. J. 406. 
 
 * Cartier v. Troy L. Co., 138 111. 533. » Peters v. Peters, 53 N. Y. State Rep. 
 'Clough V. Kyne, 40 111. App. 334; 169; Armstrong v. State. 30 Fla. 170; 
 
 State, Stanford v. Ellington, 30 L. R. Re Hoopes' Estate, 174 Pa. St. 373. 
 
 A. 583, 110 N. C. 158. w Re Hoopes' Estate, 174 Pa. St. 3 r3 ; 
 
 ^Batna Valley S. Bank v. Silver Chapman v. Taylor, 136 N. Y. 663, 
 
 City Bank (Iowa), 54 N. W. Rep. 49 N. Y. State Rep. 848 ; Ward v. Met- 
 
 473; Phelps v. N. Y., N. H. & H. R. ropolitau El. R. Co., 153 N. Y. 39, 
 
624 ' EULE3 OF EVIDENCE. 
 
 proved to exist are presumed to continue until the contrary is 
 shown.' So generally where a state of affairs or of matters of 
 fact are shown once to have existed, the presumption is that 
 they still exist.^ Thus, if a partnership, agency, tenancy or 
 other similar relation is shown to have once existed, it will 
 b,e presumed to continue until it is proved to have been dis- 
 solved.' So where it is shown that a person owned certain 
 property prior to his death, it will be presumed to have be- 
 longed to him at the time of his death ; * and generally where 
 property, either real or personal, is shown once to have be- 
 longed to a person, it will be presumed that it continues to be 
 his until the contrary is shown.^ Thus, a stockholder of a cor- 
 poration is presumed to continue such until the contrary is 
 shown.^ Possession by defendant of property belonging to a 
 decedent's estate is presumed to continue to the commence- 
 ment of an action therefor by the administrator;' and joint 
 ownership of heirs will be presumed to continue unless the 
 contrary be proved.' So also that moneys received by a county 
 treasurer and appropriated by law to a particular purpose, 
 which have never been applied thereto, are still in the hands 
 of the treasurer.' But it seems that a thing once proved to 
 exist is presumed to continue only as long as is usual with 
 things of that nature.'" Present insolvency raises no presump- 
 tion of insolvency at the time of the execution of a convey- 
 ance five years before;" and no presumption arises from the 
 
 iRe Huss, 136 N. Y. 537, 44 Alb. 6 Lake Erie & W. R Co. v. Carson, 
 
 L. J. 108, 37 N. Y. State Rep. 789; 4 Ind. App. 185; Harrison v. Queen's 
 
 Lawson, Pr. Ev. 163 ; Kidder v. Stev- Ins. Co., 49 Wis. 71 ; Davis v. Grand 
 
 ens, 60 Cal. 415 ; Miller v. Baum- Rapids F. Ins. Co., 71 N. Y. State Rep. 
 
 gardner, 109 N. C. 413 ; Pope v. Kan- 818. 
 
 aas City Cable Co., 99 Mo. 400; Bell « Barron v. Paine, 83 Me. 313; Gage 
 
 V. Anderson, 74 Wis. 638 ; Zwlsler v. v. Thompson, 161 IlL 403. 
 
 Storts, 39 Mo. App. 163. ' Murray v. Norwood, 77 Wis. 405. 
 
 2 Geisinger v. Beyl, 80 Wis. 443 ; Fan 8 Simon v. Richard, 43 La. Ann. 843 ; 
 V. Payne, 40 Vt. 615 ; Brown v. Burn- Toledo v. Shiell, 80 L. R. A. 578, 53 
 ham, 88 Me. 38; Redmond v. Indus- Ohio St. 447. 
 
 trial Ben. Ass'n, 150 N. Y. 167. 9 Spaulding v. Arnold, 125 N. Y. 
 
 3 Ryan v. Lains, 13 Q. B. 460 ; Coch- 194, 84 N. Y. State Rep. 980. 
 
 ran v. Ward, 5 Ind. App. 89. i" Scott v. Wood, 81 Cal. 398; Ward 
 
 * Hanson v. Chatovich, 13 Nev. 395 ; v. Metropolitan El. li. Co., 153 N. Y. 39. 
 
 State, Stanford v. Ellington, 117 N. C. » Windhaus v. Bootz, 93 Cal. 617. 
 
 158, 30 L. R. A. 533 ; Kleiner v. Bowen, And see Crotty v. Union Mut L. Ins. 
 
 166 111. 537. Co., 144 U. S. 631. 
 
PEESUMPTIVE EVIDENCE. 625 
 
 fact that a person was committed to jail in 1890, and was un- 
 able to get bail, that he continued in confinement until Febru- 
 ary, 1891.' When proof of a law of a foreign state has been 
 given from a publication made under governmental authority, 
 the rules and principles of evidence entitle it to be considered 
 as the existing law of the land in the absence of some equall}^ 
 good evidence that it has been changed or repealed.- It may 
 be observed that the very notion of a law, as furnishing a rule 
 of government or of conduct, suggests permanence as a char- 
 acteristic and does not involve the idea of change.' 
 
 § 13. Domicile, residence, solvency, infancy, partnership. 
 Mr. Lawson, in his work on Presumptive Evidence,* says: 
 " Domicile, residence or non-residence, solvency or insolvency, 
 infancy, partnership, the holding of an office, authority to do 
 an act, and other relations or conditions of persons or things, 
 once shown to exist, are presumed to continue until the con- 
 trary is proved." But presumptions of continuance never run 
 backward.^ Thus, proof of present insolvency raises no pre- 
 sumption of insolvency five years before. So proof that the 
 relation of debtor and creditor existed between two parties at 
 ■one date is not proof that months thereafter the same relation 
 and the same amount subsisted.^ But proof that a certain re- 
 lation existed between parties at a certain time raises a pre- 
 sumption that such relation still continues. And it is upon 
 this principle that, where a person is shown to hav« permitted 
 a servant or child to order goods upon his credit upon several 
 Occasions, he will be liable for goods so ordered after the rela- 
 
 1 State V. Williams, 35 S. C. 160. man, 19 La. Ann. 12 ; Rixford v. Mll- 
 
 2 Matter of Huss, 126 N. Y. 537, 37 ler, 49 Vt. 819 ; Wilkins v. Earle. 44 
 N, Y. State Rep. 789. N. Y. 173 ; Leport t. Todd, 33 N. J. 
 
 3 1 Greenl. Ev., § 41 ; Littlefield v. L. 124 ; Goldie v. McDonald, 78 111. 
 
 Brooks, 50 Me. 475 ; Whilden et al. v. 605 ; Jay v. Carthage, 48 Me. 353 ; 
 
 Bank, 64 Ala. 1 ; Blackburn v. State, Daniels v. Hamilton, 53 Ala. 105; 
 
 23 Ohio St 146; Eames v. Eames, 41 AUen v. Brown, 88 Ga. 161 ; Scott v. 
 
 N.H.177; Wright V.Jackson, 59 Wis. Wood, 81 Cal. 398; Adams v. State, 
 
 569 ; Barrett v. Stradl, 78 Wis. 385 ; 87 Ind. 573 ; In re Huss, 126 N. Y. 
 
 Clements v. Hays, 76 Ala. 380 ; Boozer 537 ; People \. Stokes, 71 Cal. 263. 
 V. Teague, 37 S. C. 348 ; Titlow v. Tit- < Page 173. 
 
 low, 54 Pa. St. 316; Ripley v. Bab- ^windhaus v. Bootz, 92 Cal. 617. 
 cook, 13 Wis. 425 ; O'Neil v. N. Y. etc. « Crotty v. Union Mut L. Ins. Co., 
 
 Mining Co., 3 Nev. 141 ; Mullen v. 144 U. S. 631. 
 Pryor, 12 Mo. 307; Sullivan v. Gold- 
 40 
 
626 EULES OF EVIDENCE. 
 
 tion has in fact been terminated, unless notice to the trades- 
 man not to furnish them upon his credit has been given ;' and 
 where it is shown that A. resided in 1880 in Indiana, the pre- 
 sumption is that he stiU resides there.^ So where A. is proved 
 to be solvent on a certain day, the presumption is that he con- 
 tinues solvent.' Where it is proved that certain persons were 
 once partners, the presumption is that they continue to be so.* 
 So where a state of peace or war is shown to have existed in 
 a certain countrj?^ at a certain time, the presumption is that it 
 continues;^ and where a partnership is shown to have existed 
 at a former date, the presumption is that it still exists.* 
 
 § 14. Sanity or insanity. — Every person is presumed to be 
 sane until the contrary is made to appear;' and the burden 
 of proof is on the one who alleges the insanity of a person.' 
 But insanity once proved to exist is presumed to continue.* 
 Competency in business transactions is presumed unless the 
 contrary appears by proof;" and testamentary capacity is al- 
 ways to be presumed, and such presumptions stand until over- 
 come.i^ A careful analysis of the principles upon which pre- 
 sumptions are allowed to have force and effect will show that 
 the proof of the insanity of an individual at a particular period 
 does not necessarily authorize the inference of his insanity at 
 a remote subsequent period, or even several months later.^^ 
 
 §15. Character and habits of persons. — Mr. Lawson, in 
 his work on Presumptive Evidence,'' says : " The character and 
 habits of a person are presumed to continue as proved to be at 
 a time past." The opinions of individuals once entertained and 
 expressed, and the. state of the mind once proved to exist, are 
 presumed to remain unchanged." It might be too much to say 
 
 ' 1 Rj-an V. Lanes, 13 Q. B. 460. 610 ; Cropp v. Cropp, 88 Va. 753 ; 
 
 2 Greenfield v. Camden, 74 Me. 56. Trimbo v. Trimbo, 47 Minn. 389. 
 
 3 Walrod V. Ball, 9 Barb. 271 ; Mul- 9 Lawson, Pr. Kv. 179; State v. 
 len V. Prior, 13 Mo. 307. Lewis, 20 Nev. 333 ; State v. Davis, 27 
 
 < Cooper V. Dedrick, 33 Barb. 516. S. C. 609 ; Green v. State, 88 Tenn. 614. 
 
 5 Covert V. Gray, 34 How. Pr. (N. Y.) "Reeve v. Bonville, 5 Del. Ch. 1; 
 
 450; 1 Cow. & Hill's Notes, 295. Moran v. Pelifant, 28 111. App. 378. 
 
 sPeoplev. Manhattan Co., 9 Wend. "Newhard v. Yundt, 132 Pa. St. 
 
 351. 324; Pendley v. Eaton, 130 111. 69; 
 
 ^ Hiett v. ShuU, 36 W. Va. 563. Ward v. Doan, 77 Mich. 338. 
 
 8 Chancellor v. Donnell (Ala.), 10 12 Trimbo v. Trimbo, 47 Minn. 389. 
 S. Rep. 910 ; Jones v. Jones, 137 N. Y. " Page 180. 
 
 "Marston v. Dingley, 88 Me. 546. 
 
PEESUMPTITE EVIDENCE. 627 
 
 that a character when once formed is presumed to remain un- 
 changed for life. Still the law, founded on a full knowledge 
 and just appreciation of the general course of human affairs, 
 indulges a strong presumption against any sudden change in 
 the moral as well as the mental and social condition of man. 
 When the existence of a person, a personal relation or a state 
 of things is once established by proof, the law presumes the 
 person, relation or state of things continues to exist as before 
 till the contrary is shown, or till a different presumption is 
 raised from the nature of the subject in question. It is not 
 looking to common experience in human conduct, generally 
 found to be true, that a thorough change, from a bad to good 
 character is wrought at once. It may, and it is to be hoped 
 often does, occur, but such is not the common course of life. 
 On the contrary, there is a strong probability that one whose 
 general character was bad several years since is still of doubt- 
 ful or disparaged fame. So much at least may be asserted 
 without evincing the feelings of a misanthrope, or an unseemly 
 lack of charity. 
 
 §16. Presumptions not retrospective. — Where the exist- 
 ence of a personal relation or a state of things continuous in 
 its nature is once established by proof, the law presumes that 
 such status continues to exist as before until the contrary is 
 proved, or until a different presumption is raised from the 
 nature of the subject in question. But this presumption can- 
 not operate retrospectively.* 
 
 § 17. Presumptions of life. — Presumptions of the death of 
 a person will not be received until all reasonable doubt of his 
 existence at a given time has been removed ; ^ or, the existence 
 of a living person being once shown, he is presumed to continue 
 alive until a contrary presumption is raised, as love of life is 
 presumed ; ' and a person proved to have been alive at a former 
 time is presumed to be alive at the present time,* in the ab- 
 sence of evidence that he has not been heard from within the 
 last seven years.^ Thus where, in an action tried in 1837, A. 
 
 1 Erskine v. Davis, 25 111. 251 ; Wind- * O'Gara v. Eisenlohr, 38 N. Y. 296 ; 
 haus V. Bootz, 92 Cal. 617 ; Murdook Lowe v. Foulke, 103 111. 58. 
 
 V. State, 68 Ala. 567. * Letts v. Brooks, Hill & Denio 
 
 2 Smith V. Combs, 49 N, J. Eq. 420. Supp. 36. 
 ' Illinois Cent. E. Co. v. Cragan, 71 
 
 111. 184. 
 
C28 ETOES OF EVIDENCE. 
 
 is shown to have been alive in the year 1834, the law will not 
 infer that he is dead. 
 
 § 18. Persons presumed to be dead when.— An absentee 
 shown not to have been heard of for seven years by persons 
 who, if he had been alive, would naturally have heard of him, 
 is presumed to have been alive until the expiration of such 
 seven years and to have died at the end of that time.^ The 
 full period must have elapsed, even though it is shown that 
 the person was in feeble health when he left the neighborhood, 
 or was very aged.^ There is no presumption whatever as to 
 the date of death within seven years, and the onus is on the 
 one whose case demands proof of death at any particular 
 period.' 
 
 § 19. Absentees — Who are. — Mr. Lawson, in his work on 
 Presumptive Evidence,* says: "An absentee is one who has 
 left his residence, home or domicile either temporarily, intend- 
 ing to return, or permanently. Where the removal is tempo- 
 rary, absence alone, without being heard of, is sufficient to 
 raise the presumption of death. But where it is permanent, 
 without intention to return, the presumption does not arise 
 until inquiry has been made at the fixed residence, home or 
 domicile of the party." ^ Such absence must be shown to have 
 been from his last known place of residence. If a person re- 
 mains beyond sea for seven years, if he had a known and fixed 
 
 1 Re Rhodes' Estate, 10 Pa. Co. Ct. ner, 36 Ohio St. 332 ; Flynn v. Coffee, 
 Rep. 386 ; Waite v. Coaracy, 45 Minn. 12 Allen, 133 ; Adams v. Jones, 39 Ga. 
 159; Re Keele's Estate (Pa.), 30 W. N. 479; Smith v. Smith, 49 Ala. 156; 
 C. 419 ; Hoyt v. Newbold, 45 N. J. L. Leonard v. Corley, 43 Miss. 687, 709 ; 
 219 ; Youngs v. Heffner, 36 Ohio, 232 ; Sheldon v. Ferris, 45 Barb. 124 ; Went- 
 Forsaith v. Clark, 21 N. H. 424 ; Spears worth v. Wentworth, 71 Me. 72 ; Eagle 
 V. Burton, 31 Miss. 554. But see , v. Emmet, 4 Bradf. (N. Y.) 117; Coe 
 Wood's Pr. Ev. 184. v. Strong, 4 U. C. Q. B. 510; Clarke 
 
 2 Re Mutual Ben. Co., 174 Pa. St. 1 ; v. Canfield, 15 N. J. Ch. 119 ; Shown 
 F.urney v. Ball, 24 Ga. 505 ; 1 Greenl. v. McMackin, 9 B. J. Lea, 601, 608 : 
 Ev., g 41 ; Winship v. Conner, 42 N. Smith v. Knowlton, 11 N. H. 197. 
 
 H. 341 ; Burr v. Sim, 4 Whart. 150 ; 3 Whiting v. Nicholl, 46 111. 230, 241 : 
 
 Giles V. Morrow, 1 Ont. Rep. 527 ; Howard v. State, 75 Ala. 27 ; Whitely 
 
 Johnson v. Merithew, 80 Me. Ill; v. Equitable Society, 73 Wis. 170; 
 
 Dowd V. Watson, 105 N. C. 476 ; McCartee v. Cauiel, 1 Barb. (N. Y.) Ch. 
 
 Thomas v, Thomas, 16 Neb. 553; 455; Spencer v. Roper, 13 Ired.L. 333; 
 
 Spencer v. Roper, 18 Ired. L. 333;' Puckett v. State, 1 Sneed, S55. 
 
 Primm v. Stewart, 7 Tex. 178 ; Whit- ^ Page 213. 
 
 ing V. Nicholl, 46 111. 230; Osborn v. 5 Wentworth v. Wentworth, 71 Me. 
 
 Allen, 26 N. J. L. 388 ; Youngs v. HefE- 83 ; Bailey v. Bailey, 86 Mich. 185. 
 
PEESDMPTIVE EVIDENCE. 629 
 
 residence in a foreign country M'hen he was last heard of, he is 
 not presumed to be dead without some evidence of inquiries 
 having been made for him at such known place of residence 
 without success. Thus, the question is whether G. is alive. It 
 is proved that G. has not been heard of in Mexico, JST. Y., for 
 thirty years. There is no evidence that G. ever had a resi- 
 dence or domicile in Mexico. There is no presumption that 
 G. is dead.^ 
 
 § 20. Not Ibeen heard of— Meaning of.— Mr. Lawson says: 
 "The phrase 'not been heard of means that none of the rela- 
 tives or friends of the absentee have heard anything about him 
 which should or would raise a reasonable doubt in his or her 
 mind that he really was no more."^ Bft persons who would 
 naturally have heard of him are not confined to a particular 
 class.' It is not, however, sufficient to raise a presumption that 
 a person was dead to simply inquire of people who once knew 
 him, and who say they have not heard from him in seven years, 
 because, if ever so much alive, those people might not have 
 heard of him. It is necessary, in order to raise the presump- 
 tion, that there should have been an inquiry and search made 
 for the person among those who, if he was alive, would be 
 likely to hear from him. 
 
 § 21. Absentee's residence — Meaning of. — Mr. Lawson, in 
 his work on Presumptive Evidence, says: "The absentee's 
 residence, home or domicile refers to that place which he first 
 departed from, and does not include places where he may have 
 afterward resided or visited."* Thus, in Winship v. Conner* 
 the court held that where C, who resided with his wife and 
 family in IT., left there in 1843, leaving his wife and family 
 behind, and wrote them letters from Illinois until 1849, after 
 which he was not heard from, the presumption was that he 
 died in 1856. 
 
 § 22. Presumption of deatli Ibefore seven years.— Where 
 a person takes passage on a ship or steamer, and upon arrival 
 at port he is not to be found upon the boat, the boat not hav- 
 
 1 Garwood v. Hasings, 38 Cal. 329; 2 Lawson, Pr. Ev. 216. 
 WenJworth v. Wentworth, 71 Me. 83 ; 3 Wentworth v. Wentworth, 71 Me, 
 
 Brown v. Jewett, 18 N. H. 230 ; Stinch- 73 ; Flynn v. Coffee, 13 Allen, 133. 
 field V. Emerson, 53 Me. 465; Smith « Lawson, Pr. Ev. 223. 
 V. Smith, 49 Ala. 156. 543N. H. 344. 
 
630 EULES OF EVIDENCE. 
 
 ing landed during the voyage, a jury might with great pro- 
 priety from this fact presume the person's death during the 
 voyage. The burden of proving presumption founded on a 
 reasonable probability must prevail against mere possibilities; 
 for were it otherwise, the conclusion could never be arrived 
 at that a man was dead until the natural limit of human life 
 had been reached. A vessel, when absent double the longest 
 time of a voyage, may be presumed to be lost; and it follows 
 as a consequence that it will also be inferred that all perished 
 with her, if none of the passengers or crew is afterwards 
 heard of. The lapse of time makes the deaths of all on board 
 as certain as anything not seen can be. The death of a person 
 is upon him who sets it up ; ^ and if he relies upon the absence 
 of the person for seven years without being heard from, he 
 must establish both facts before the presumption arises. The 
 mere fact of absence is not enough; he must show inquiries 
 made at his last known residence abroad ; or if he had none 
 that is known to his friends, inquiries made of the persons in 
 the place where he was last known to reside before he went 
 abroad, and inquiries among his relatives and friends who 
 would be most likely to hear from him if living.^ Where a 
 person in a desperate state of health leaves his home for a visit 
 to return in two months, and never returns, and is not after- 
 wards heard of, the presumption is that he died before seven 
 years.' 
 
 Mr. Lawson, in his work on Presumptive Evidence, states 
 another exception to the general rule as follows : " That if 
 within seven years a person embarked on a vessel which has 
 not since been heard from and is long overdue, inquiries having 
 been made at her ports of departure and destination, the pre- 
 sumption is that he died before seven years.* Thus, where in 
 January, 1857, M. sailed from Liverpool to Valparaiso, the 
 voyage should have been made in ten weeks. In January, 
 1858, nothing had been heard of the vessel or its crew. The 
 presumption is that M. is dead.^ But until inquiries have been 
 
 1 Emerson v. White, 29 N. H. 483. * Lawson, Pr. Ev. 223 ; White v. 
 
 2 Clark V. Cummings, 5 Barb. 339 ; Mann, 26 Me. 363 ; Eagle's Case, 3 
 McCartee V. Camel, 1 Barb. Ch. 455 ; Abb. Pr. (N. .Y)318 ; Merritt v. Thomp- 
 Reed V. Millizen, 155 111. 364. son, 1 Hilt. (N. Y.) 550. 
 
 3 Ston venel v. Stephens, 3 Daly, 333 ; 5 Gerry v. Post, 13 How. Pr. (N. Y.) 
 Danby v. Banby, 5 Jur. (N. S.) 54. 118. 
 
PEESUMPTIVE EVIDENCE, 631 
 
 made at the ports of departure and destination, no presump- 
 tion of loss arises. Thus, in Ee Bishop,^ B. in October, 1858, 
 sailed in command of a vessel from Demerara to London, and 
 neither B. nor the vessel was afterwards heard of; but the 
 court held that until inquiries had been made at Demerara 
 there was no presumption that he was dead." 
 
 Mr. Lawson states the third exception to the rule above as 
 follows: "That within seven years he encountered a specific 
 peril, which includes not the ordinary dangers of travel or 
 navigation,^ but some unusual or extraordinary danger.' Thus, 
 where M., who left New York for Asia in 1840, and in 1841 
 resided in a town in Asia which was visited by an epidemic, 
 and he was not heard of subsequently, it will be presumed 
 his death occurred prior to 1847.* That his habits, character, 
 domestic relations or necessities wound have made it certain 
 that if alive within that period he would have returned to or 
 communicated with his residence, home or domicile." ^ 
 
 § 23. When presumption of death after seven years does 
 not arise. — Mr. Lawson, in his work on Presumptive Evi- 
 dence, says: "The presumption of death at the expiration of 
 seven years from being last heard of does .not arise where it 
 is improbable that the absentee, even if alive, would or could 
 have been heard of at, or would or could have communicated 
 with, his residence, house, or domicile, or where in other judi- 
 cial proceedings the absentee is recorded as having been alive 
 subsequently to the end of the seven years." ^ The same rule 
 prevails where, on account of illiteracy or other reason, it is 
 improbable that there would have been any communication.' 
 The fact that a person was alive at a particular time is but one 
 of the facts to be considered in determining whether he was 
 alive at a given future date, the probative force of which will 
 depend upon accompanying circumstances, such as length of 
 intervening time, the age and health of the person, or any other 
 
 1 1 Sw. & Tr. 303. ^ Lawson, Pr. Ev. 233 ; Tisdale v. 
 
 ■ Eagle's Case, 3 Abb. Pr. 230 ; Lan- Connecticut Mut. Life Ins. Co., 36 
 
 caster v. Washington Life Ins. Co., Iowa, 170 ; Slieldon v. Ferris, 45 Barb. 
 
 63 Mo. 137. 138. 
 
 ' Lawson, Pr. Ev. 830. " Francis v. Francis, 150 Pa. St 644 ; 
 
 * Learned v. Corley, 43 Miss. 709 ; Lawspu. Pr. Ev. 337. 
 
 Lancaster v. Washington Life Ins. ' Ee Miller's Estate, 30 N. Y. State 
 
 Co., 63 Mo. 137. Rep. 812, 70 Hun, fil. 
 
632 EULES OF EVIDENCE. 
 
 facts affecting the probability of the continuance of his life.' 
 To rebut the presumption of death from absence for more than 
 seven j'ears, evidence that a witness had conversed with a man 
 who informed him that the person was alive in another state, . 
 where he had seen him a short time before, is admissible, al- 
 though hearsay.^ 
 
 § 24. Presumption of survivorship of persons who per- 
 ished in the same accident. — By the civil law and in foreign 
 countries 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. But in this country the 
 following is the general rule: There is no presumption as to 
 the order in which two persons died w^ho are shown to have 
 perished in the same accident, shipwreck or battle. The law 
 regards them as having died at the same instant.' The evi- 
 dence is, from the beginning to the end, one of fact, as bear- 
 ing upon which the sex, age and relative physical strength of 
 the persons who were lost may be shown, and is generally 
 the only evidence which can be had upon the question ; and as 
 a rule, in the absence of any evidence upon which a finding 
 can be based, it will be presumed that all perished at the same 
 moment.^ This is done not because the fact is proved, or 
 that there is any presumption to that effect, but because there 
 is no evidence and no presumption to the contrary.' Thus, 
 where A. and his wife are killed in a railroad accident, there 
 is no presumption that one survived the other.* The same 
 rule prevails where a father and children were lost in a ship- 
 wreck.' 
 
 § 25. Where the age, health or sex may raise a presump- 
 tion of survivorship. — Mr. Lawson, in his work on Presump- 
 tive Evidence, says: "Where the calamity, though common 
 to all, consists of a series of successive events, separated from 
 each other in point of time and character, and each likely to 
 produce death upon the several victims according to the de- 
 gree of exposure to it, the difference in age, sex or health may 
 
 1 state V. Plynn, 43 Minn. 385. 6 Re Hall, 13 Ch. L. N. 18. 
 
 2Dowd V. Watson, 105 N. C. 473. 'Newell v. Nichols, 13 Hun, 604; 
 
 3 Cowman v. Rogers, 73 Md. 408; Kansas P. R Co. v. Miller, 3 Cal. 443 ; 
 
 Cook V. Caswell, 81 Tex. 678. Russell v. Hallett, 33 Kan. 376 ; New- 
 
 * Newell V. Nichols, 75 N. Y. 78. ell v. Nichols, 75 N. Y. 78. 
 5 Ibid. 
 
PRESUMPTIVE EVIDENCE. 633 
 
 raise an inference of survivorship." ' And the one of several 
 in a common danger which proves fatal to all who was last 
 seen alive within the operation of the course of death is pre- 
 sumed to have survived the others.^ 
 
 § 26. Presumptions of identity.— Identity of name of de- 
 fendant with that of defendant in a judgment sued on \s prima, 
 facie evidence of identity of person; ' and it is fair and legal 
 to presume that the same name identifies the same person 
 until the contrary appears, where there is similarity of resi- 
 dence or trade, or where the name is an unusual one.* Thus, 
 "Louis E. Fink" and "Louis Fink" are presumptively the 
 same person.^ And a check dated at a certain place and drawn 
 upon the "First l^ational Bank" will be presumed to have 
 been drawn upon the First National Bank of such place, where 
 it appears that such bank exists.^ But the fact that the fam- 
 ily name and initials are the same raises no presumption that 
 the parties are the same. Thus, there is no presumption 
 that A. A. Louden is Andrew A. Louden,'' or that H. Y. Lib- 
 hart is Henry Y. Libhart.* Where two persons of the same 
 name occupy different positions or relations, the presumption 
 is that they are. different ; ' and where an interest is claimed, 
 mere identity of name with the person entitled is insufficient.'* 
 Where father and son, or two persons of different ages, bear 
 the same name, that name when used is presumed to indicate 
 the father, or the eldest of the two, as the case may be. 
 
 PRESUMPTION OF INTENT. 
 
 § 27. In general. — Where a person does an act he is pre- 
 sumed in so doing to have intended that the natural and legal 
 consequences of his act shall result.'^ As men generally act 
 deliberately and by the determination of their own will, the 
 
 iLawson, Pr. Ev. 246; Coye v. 5Fjnk v. Manhattan R. Co., 29 N. Y. 
 
 Leach, 8 Met 371. State Rep. 153, 15 Daly, 479 ; Gilman 
 
 2 Id. V. Sheets, 78 Iowa, 499. 
 
 3 Ritchie v. Carpenter, 2 Wash. 512. ^Culver v. Marks, 122 Ind. 554.- 
 
 4 Morris v. MoClary, 43 Minn. 346 ^ Louden v. Walpole, 1 Ind. 321. 
 Hamshaw v. Kline, 57 Pa. St. 397 ; « Bennett v. Libhart, 27 Mich. 489. 
 Phillip V. Evans, 64 Mo. 17; Douglas 'JCozzens v. Gillispie, 4 Mo. 82; Mc- 
 V. Dakin, 46 Cal. 49 ; Smith v. Gilluni, Minn v. Whelan, 27 Cal. 300. 
 
 80 Tex. 120. But see Ambs v. Chi- 'Mackson v. King, 5 Cow. 287; 
 cago, St. P., M. & O. R. Co., 44 Minn. Mooers v. Blanker, 29 N. H. 431. 
 266. 11 State v. Doyle, 107 Mo. 36 ; State 
 
634 EULES OF EVIDENCE. 
 
 law presumes that every man always thus acts until the con- 
 trary appears. Thus, where a baker delivers adulterated bread 
 to a public asylum, the law presumes that he intended it to be 
 eaten. So when B. sets fire to a building, the law presumes 
 that he intended to injure the owner. So the law presumes 
 that where a married man goes to a house of prostitution 
 that he committed adultery while there.^ So where a man 
 makes a conveyance whose provisions prefer certain creditors, 
 the law presumes that he intended to prefer thera.^ "Where 
 an act is criminal jper se, a criminal intent is presumed from 
 the commission of the act.' But it is different when a speci- 
 fied interest is required to make an offense.* 
 
 § 28. Revocation of will. — A testator may destroy his own 
 will at any time or in any mode or manner he pleases. Thus, 
 if a testator cut out his own name from his will with clear 
 intent to revoke it, it is a sufficient destruction. So would 
 drawing lines over the testator's name, animo revocandi, even 
 though the signature is still legible. But whatever the means 
 employed for defacing or destroying the will, a free and ra- 
 tional intention to revoke must accompany the act or the 
 revocation will not be valid. The mere act of canceling is 
 nothing unless it be done animo revocandi. If a will is found in 
 a testator's safe carefully preserved among his valuable papers 
 with his signature erased, it would be a fair and reasonable 
 presumption that he erased the signature animo revocandi. 
 But if found with the signature carefully restored, no such 
 presumption arises. The cancellation of a will does not nec- 
 essarily involve its revocation. The cancellation itself is an 
 equivocal act, and in order to operate as a revocation must 
 be done animo revocandi. Mere tearing or destruction, with- 
 out intention to revoke, is no revocation. If a testator is ar- 
 rested in his design of destroying his will by remonstrance 
 or interference of a third person, or by his own voluntary 
 change of purpose, and thus leaves unfinished the work of 
 destruction which he had commenced, the will is unrevoked; 
 
 V. Talmage, id. 543; Hayes v. State, phy v. State, 37 id. 143; State v. 
 
 58 Ga. 47. Holmes, 54 Mo. 153. 
 1 Evans v. Evans, 41 Cal. 103. ^ Com. v. Drum, 58 Pa, St 9; State 
 
 2Beals V. Clark, 13 Gray, 18. v. Lane, 64 Mo. 319. 
 3 Carroll v. State, 23 Ala. 28 ; Mur- 
 
PEESUMPTIVE EVIDENCE. 635 
 
 and the degree in which the attempt had been accomplished 
 would not, it would seem, be very closely scrutinized, if the 
 testator himself had put his own construction upon his some- 
 what equivocal act by subsequently treating the will as un- 
 destroyed. It may be admitted that the slightest act of can- 
 cellation, with intent to revoke absolutely, although such intent 
 continues' only a moment, it is a total and perpetual revoca- 
 tion, and the paper can only be set up as a new will. But that 
 is founded on the intent. "When, therefore, there appears 
 what may be called a cancellation, it becomes necessary to 
 look to the extent of it; at all the conduct of the testator; at 
 what he proposed doing at the time, and what he did after- 
 wards, to satisfy the mind whether that was meant in fact as 
 a cancellation, immediately and absolutely, or only condition- 
 ally, upon a contemplation of something else then in mind ; 
 for, although every act of cancellation imports prima facie 
 that it is done, yet it is but a presumption, which may be re- 
 pelled by accompanying circumstances.^ 
 
 § 29. When the doing of an act does not raise a presump- 
 tion. — When a statute makes an offense to consist of an act 
 combined with a particular intent, that intent is just as neces- 
 sary to be proved as the act itself, and must be found by the 
 jury as matter of fact.^ The inquiry as to intent is far less 
 simple than as to whether an act has been committed, because 
 you cannot look into a man's mind to see what is passing 
 there at any time. What he intends can only be judged of 
 by what he does or says, and if he says nothing then his acts 
 alone must guide. 
 
 § 30. A person is presumed to do what he has the right 
 and power to do. — It is a maxim of the law to give effect to 
 everything which appears to have been established for a con- 
 siderable length of time, and to presume that what has been 
 done was done of right and not of wrong.' When a party to 
 
 1 Matter of Wood, 32 N. Y. State v. Darden, 86 Ga. 368, 11 L. R A. 51 ; 
 
 Rep. 2S6 ; Varnou v. Varnon, 67 Mo. Warter v. Warter, L. R 15 P. D. 152. 
 
 App. 524; Belton v. Sumner, 31 Fla. 2 Roberts v. People, 19 Mich. 401; 
 
 139, 21 L. R. A. 146 ; Cheever v. North, Mayher v. People, 10 id. 212. 
 
 106 Mich. 390 ; Re Kaufman's Will, » Auerbaoh v. Wylie, 84 Tex. 615 ; 
 
 181 N. Y. 620, 15 L. R A. 292 ; Baacke Sears v. Kings County Elev. R. Co., 
 
 V. Baacke, 50 Neb. 18; Re Comassi's 156 Mass. 440; Mosness v. German 
 
 Estate, 107 Cal. 1, 28 L. R. A. 414; American Ins. Co., 31 Ins. L. J. 915; 
 
 Stewart v. Powell, 10 L. R. A. 57; Ellis Enos v. State, 131 Ind. 560 ; Kidder v. 
 
636 EULES OF EVIDENCE, 
 
 any proceeding tenders, in support of his case, a document 
 which must be taken ^rima/acie to be the property of another, 
 the court will presume that he did not come by it in any tor- 
 tious way;^ and where a person who is beyond the jurisdiction 
 of a court has in his possession a document required by that 
 court for the purposes of justice, it is not to be presumed that 
 he will withhold it.^ Want of religious belief or irreligious 
 conduct will not be presumed. "All members of a Christian 
 community being presumed to entertain the common faith, no 
 man is supposed to disbelieve the existence and moral govern- 
 ment of God."' All testimony given in a court of justice is 
 presumed to be true until the contrarj' appears.* This pre- 
 sumption is based on a reliance on the truth of human testi- 
 mony in general ; that the law will not presume perjury ; that 
 the law will not presume an intention to injure the party whom 
 the evidence affects, and that the law will not presume irrelig- 
 ion or intentional false swearing. 
 
 § 31. Presumptions from the course of nature. — The law 
 notices the course of the heavenly bodies, the changes of the 
 seasons and other physical phenomena, according to the maxim 
 '•'■Lex spectat natvrce ordinem." ^ So the law presumes all indi- 
 viduals to be possessed of the usual powers and faculties of the 
 human race, such as common understanding, the power of pro- 
 creation within the usual ages, etc.^ According to the testi- 
 mony of experienced accoucheurs, the average duration of 
 gestation in the human female is comprised between the thirty- 
 eighth and fortieth weeks after conception.' It is, however, 
 conceded on all hands that a delay or difference in the time 
 may take place, of a few days, or perhaps even weeks, as there 
 are numerous causes, both physical and moral, by which deliv- 
 ery may be accelerated or retarded. But whether the laws of 
 nature admit of such a phenomenon as the protraction of the 
 term of gestation for a considerable number of weeks or months 
 beyond the accustomed period is an unsettled point.^ With 
 
 Non-is, 18 N. H. 533 ; Cowles v. Reavis, 5 Co. Litt., 92a, 1976. 
 
 109 N. C. 417 ; Horan v. Weiler, 41 Pa. « Reynolds v. Reynolds, 1 Dick. 374 ; 
 
 St. 470 ; Carson v. Central R. Co., 35 Leng v. Hodges, 1 Jao. 585. 
 
 Cal. 335. 7 Taylor, Med. Jurisp. 606, 607 (7th 
 
 1 Littleton, sees. 875, 877. ed.). 
 
 2 Boyle V. Wiseman. 10 Excli. 647. 8 Beck's Med. Jurisp., cli. 9 (7th ed.) ; 
 
 3 1 Greenl. Ev., g 43 (7th ed.). Chitty, Med. Jurisp. 405, 406; Tayl. 
 « Cro. Jac. 601, pi. 26. Med. Jurisp. 535, oh. 54 (7th ed.). 
 
PRESUMPTIVE EVIDENCE. 037 
 
 respect to the minimum term of gestation, it seems now con- 
 ceded as a general rule that no infant can be born capable of 
 living until one hundred and fifty days, or five months, after 
 conception.^ It seems that children born before seven months 
 are very unlikely to live, and that even at seven months the 
 chance is against the child.^ The rule of the common law is 
 that a child between the ages of seven and fourteen is not pre- 
 sumed to be doli capax; ^ and the question whether, in com- 
 mitting an offense, such child in fact acted with intelligepce 
 and capacity is to be determined by the jury. But as a boy 
 under fourteen years of age is legally incapable at common 
 law of committing an assault with intent to rape, evidence is 
 inadmissible to show that he could in fact commit the offense.'' 
 Where the child is under the age of seven years the law pre- 
 sumes him to be incapable of committing a crime; after the 
 age of fourteen he is presumed to be responsible for his ac- 
 tions as unqualifiedly as if he were forty ; but between the 
 ages of seven and fourteen no presumption of law arises, and 
 that which is termed a malicious intent must be proved by evi- 
 dence.' Thus, where it is shown that a person committed a 
 crime while under fourteen j'ears of age, the law presumes 
 that he was incapable of committing it.'' So where a wife 
 commits a tort or crime in the presence of her husband, the 
 presumption is that it was done under his coercion.' So money 
 advanced by a parent to a child, or by a husband to his wife, 
 is presumed to be a gift and not a loan.^ 
 
 § 32. A person is presumed to do what it is liis interest 
 to do. — It is presumed that a man has adopted or accepted 
 an advantageous act, offer, gift, bequest, devise or conveyance, 
 etc., until his positive disclaimer or refusal is shown.' Thus, 
 where a conveyance of property is made to a person, the pre- 
 sumption is that he accepts it if beneficial to him.^" So, where 
 a debtor delivers money to his creditor, the presumption is 
 that it was so delivered to pay a debt, not as a loan or gift. 
 
 1 Beck's Med. Jurisp. 210 (7tli ed.). 7 Marshall v. Oakes, 51 Me. 309. 
 
 2 Id. 313; Tayl. Med. Jurisp. 615 s Ward v. Ward, 36 Ark. 586. 
 (7th ed.). SMarston v. Butler, 3 Wend. 149. 
 
 ajansen v. Sidoal, 41 111. App. 379. w Davis v. Garritt, 91 Tenn. 147; 
 
 «MoKinney V. State, 39Fla. 565, 30 Higham v. Stewart, 38 Mich, 513; 
 
 Am. St. Rep. 140. Tibballs v. Jacob, 31 Conn. 438 ; Rug- 
 
 5 Dave V. State, 87 Ark. 263. gles v. Lawson, 13 Johns. 285; Treat 
 
 «Com. V. Mead, 10 Allen, 398. v. Treat, 35 Conn. 310. 
 
638 EULES OF EVIDENCE. 
 
 So where a debtor leaves a legacy to a creditor.^ So where 
 one man hands money to another the law will not presume that 
 this a loan.^ 
 
 § 33. Presumption of payment.— Mr. Lawson, in his work 
 on Presumptive Evidence, says: "Independent of a statute of 
 limitations, or in the absence of one, after a lapse of twenty 
 years the law raises a presumption of the payment of bonds, 
 mortgages, legacies, taxes, judgments, the due execution of a 
 trust and the performance of a covenant." ' But the presump- 
 tion of payment of a judgment bond does not arise until twenty 
 years after its maturity.* No person ought to be permitted 
 to lie by whilst transactions can be fairly investigated and 
 justlj'' determined until time has involved them in uncertainty 
 and obscurity and then ask for an inquiry. Justice cannot be 
 satisfactorily done when parties and witnesses are dead, vouch- 
 ers lost or thrown away, and a new generation has appeared 
 on the stage of life unacquainted with the affairs of the past 
 age. It may be shown that the plaintiff was poor and the 
 debtor of undoubted solvency during the period which has 
 elapsed since the debt matured ; and in the absence of any de- 
 mand or recognition of the debt partial payment is a persuasive 
 circumstance and may, when slightly corroborated, be suflB- 
 cient evidence of payment.^ The payment of a subsequent 
 debt always raises the presumption that prior debts have been 
 paid." From the circumstance that a promissory note is given 
 by one person to another it will be presumed that the payee 
 was not at that time indebted to the maker,' and that all claims 
 in favor of the maker against the payee were adjusted at that 
 time.^ The presumption of the payment of a judgment of a 
 court of record after twenty years is limited to judgments for 
 the payment of money and does not apply to judgments for 
 the recovery of possession of land ; ' and the fact that the plaint- 
 
 iCloudv.Clinkinbeard,48Am.Dec. Webb v. Lees, 149 Pa. St 13; Smith 
 
 397. V. Tucker, 2 E. D. Smith, 193; Gil- 
 
 2 Gerding v. Walter, 29 Mo. 426. bert on Ev. 157 ; Boyd v. Foot, 5 
 
 3 Nobles V. Hogg, 36 S. C. 322 ; Law- Bosw. 110. 
 
 son, Pr. Ev. 308; Taylor v. Dugger, 'Gould v. Chase, 16 Johns. 226. 
 
 66 Ala. 444. ' 8 Lake v. Tysen, 6 N. Y. 461; Ee 
 
 « Finf rook v. Kohl, 9 Lans. L. Rev. Oallister, 153 N. Y. 394. 
 
 313 ; Knight v. McKinney, 84 Me. 107. 9 Van Rensselaer v. Wright, 131 
 
 6 Briggs' Appeal, 93 Pa. St. 485. N. Y. 623, 31 N. Y. State Rep. 897. 
 
 6 Matthews v. Light, 40 Me. 394; 
 
PEESUMPTIVE EVIDENCE. 639 
 
 iff has neglected to enforce his judgment by writ of possession 
 for more than twenty years does not raise the presumption 
 that the judgment has been satisfied.' 
 
 §34. Otlier than by lapse of time.— The maker's posses- 
 sion of a past-due note and its production by him at the trial 
 makes a prima facie, but not a conclusive, case of payment.* 
 And the general rule is that where an order for the payment 
 of money or the delivery of goods is found in the hands of 
 the drawee, or a promissory note in the possession of the 
 maker, a legal presumption is raised that he has paid the 
 money due upon it or delivered the goods ordered. Where 
 bills of exchange, checks, orders for the payment of money or 
 goods, promissory notes or other obligations are paid, they, 
 as a general rule, go into the hands of the person paying them. 
 It is to be presumed that a person paying a written obligation 
 will take it into his possession. Thus, a presumption of pay- 
 ment other than by lapse of time will arise from the produc- 
 tion of a receipt from the creditor;' from the possession by 
 the debtor of the security or obligation or from its cancella- 
 tion; from the payment of a later debt; from the passing of 
 money between the debtor and creditor after the debt is due,* 
 or from other circumstances raising an inference of payment.* 
 But the presumption of payment is onlj prima facie.^ Where 
 a receipt for the last instalment of a debt is produced the pre- 
 sumption is that all former instalments of the same debt are 
 paid.' So where A. gives B. a promissory note the presump- 
 tion is that B. was not at that time indebted to A. ;^ but such 
 presumption may be rebutted.' 
 
 1 Van Rensselaer v. Shaffer, 31 N. 5 First National Bank v. McManigle, 
 Y. State Rep. 899, 121 N. Y. 713. 69 Pa. St. 156 ; Pope v. Dodson, 58 111. 
 
 2 Stephenson v. Richards, 45 Mo. 360; Carson v. Lineberger, 70 N. C. 
 App. 544; Emerson v. Mills, 83 Tex. 173. 
 
 385 ; Bunu v. Third Nat. Bank, 38 111. ^ Parks v. Smith, 155 Mass, 26. 
 App. 76. ' Crompton v. Pratt, 105 Mass. 255 ; 
 
 3 Cable V. Foley, 45 Minn. 421 ; Voss Hodgdon v. Wright, 36 Me. 337. 
 
 V. Mutual Ben. L. Ins. Co., 81 Fed. 8 Detreest v. Bloomingdale, 5 Denio, 
 
 Rep 24 ; Cory v. The Mecca (H. L. E., 304. 
 
 1897), A. C. 286. ^ Hal fin v. Winkleman, 83 Tex. 165 ;. 
 
 * Walls V. Walls, 170 Pa. St. 389; Emerson v. Mills, id. 385. 
 Liowrey v. Robinson, 141 Pa, St. 189 ; 
 Re England (1895), 2 Ch. 820. 
 
CHAPTEE XYIII. 
 PRESUMPTIVE EVIDENCE (Continued). 
 
 L FOREIGN LAWS. 
 
 § 1. Presumed to be the same as the 
 laws of the forum. 
 
 2. Acts malum in se. 
 
 3. Where there is no presumption 
 
 that the common law is in 
 force in a state or country. 
 
 4. The term "law" does not in- 
 
 clude the statute law of the 
 forum. 
 
 n. PRESUMPTION AS TO ALTERATION 
 OP INSTRUMENT. 
 
 5.' Alteration presumed to have 
 been made before execution. 
 
 6. When party offering an altered 
 
 paper must explain it. 
 
 III. AS TO RECEIPT OP LETTERS. 
 
 IV. AGENCY — AUTHORITY. 
 
 V. AS TO DELIVERY OP DEED, ETC. 
 
 VL PRESUMPTION FROM POSSESSION 
 AND LAPSE OF TIME. 
 
 7. Lawful origin presumed from 
 
 possession. i 
 
 8. Conveyance by trustees. 
 
 9. Prescription — Title by. 
 
 10. Dedication of highway. 
 
 11. License. 
 
 13. Extinguishment of easement by 
 cessation of enjoyment, 
 
 13. Land under water. 
 
 14. Highways. 
 
 15. Walls, banks, etc. 
 
 16. Legal title presumed from pos- 
 
 session, when. 
 
 Vn. INNOCENCE — PRESUMPTIONS IN 
 FAVOR OF. 
 
 17. In general. 
 
 18. Absence of motive. 
 
 § 19. Good character of party ac- 
 cused. 
 
 20. Alibi. 
 
 21. Insanity. 
 
 23. Communications to defendant 
 
 Vin. WHAT THE PROSECUTION MUST 
 ESTABLISH. 
 
 38. In general. 
 
 24. Corpus delicti. 
 
 25. Discovery of the body in case 
 
 of murdei-. 
 
 36. Cause of death. 
 
 37. Infanticide. 
 
 IX. PRESUMPTION OP GUILT. 
 
 28. In general. 
 
 29. Motive. 
 
 30. Other crimes. 
 
 31. Malice. 
 
 32. From attempt or preparation 
 
 to accomplish the same crime 
 at another time. 
 
 33. From threats or expressions of 
 
 ill will 
 
 34. From recent possession of the 
 
 fruits of tlie crime. 
 
 35. Unexplained suspicious appear- 
 
 ances. 
 
 36. From attempts to stifle investi- 
 
 gation. 
 
 37. Concealment, disguise, flight, 
 
 etc. 
 
 38. From silence of accused when 
 
 charged with the crime. 
 
 39. Spoliation of evidence. 
 
 40. Affectation of grief and fabrica- 
 
 tion of evidence. 
 
 41. Proof of identity of the person 
 
 or thing. 
 
 X. PRESUMPTIONS AGAINST CEIMK 
 
PEESUMPTIVE EYIDENOE. 641 
 
 I. FOEEIGN LA\yS. 
 
 § 1. Presumed to be the same as the laws of the forum.— 
 
 As a general rule courts will presume that the law of the place 
 where the contract was made or was to be performed is identi- 
 cal with the law of the forum ; ^ and where in one state or 
 country the law of another state or country is the subject of 
 inquiry, the law of the forum will be presumed to be the law 
 of the foreign state or country.^ As a general rule courts will 
 not take judicial notice of the laws of another country, but 
 they must be alleged and proved as facts.' But the rule is 
 not without qualification. In the silence of any positive rule 
 affirming or denying or restraining the operation of foreign 
 laws, courts of justice presume the tacit adoption of them by 
 their own government, unless they are repugnant to its policy 
 or prejudicial to its interests.* A spirit of comity and a dis- 
 position to friendly intercourse are presumed to exist among 
 nations as well as among individuals.^ It is also a principle of 
 international law that, generally speaking, the validity of a con- 
 tract is to be decided by the law of the place where it is made, 
 unless it is to be performed in another country;* for, in the 
 latter case, the law of the place of performance is to govern,' 
 because such may well be presumed to have been the intention 
 •of the parties,^ So a foreign marriage will be presumed to have 
 been celebrated with the solemnities required by the law of 
 the place where it is celebrated.' In the absence of all proof 
 to the contrary, the common law is presumed to prevail in the 
 
 iBurdick v. Missouri P. E. Co., 133 ^ Story, Confl. of Laws, g 38 (5th 
 
 Mo. 221 ; National German-American ed.) ; Bank of Augusta v. Earle, 18 
 
 Bank v. Lang, 3 N. D. 66 ; German Pet 519, 589. 
 
 Bank v. American F. & M. Ins. Co., ^ i Greenl. Ev., § 43 (7th ed.). 
 
 «3 Iowa, 491 ; James v. JAmes, 81 Tex. « Robinson v. Bland, 1 -W. Bl. 256, 
 
 373; Peet v. Hatcher, 113 Ala. 514; 358, 359. 
 
 Jackson v. Pittsburg, C, C. & St. L. ' Story, Confl. of Laws, g§ 342, 280- 
 
 E. Co., 140 lud. 341. 283. 
 
 2 Latham v. De Loiselle. (N. Y.), 3 »Id., % 76; Whart Conf. Laws, 
 
 App. Div. 535; Wickersham v. John- § 398; Story, Conf. Laws, §§ 76, 242- 
 
 son, 104 Cal. 407 ; Mortimer v. Marder, 248, 327. 
 
 93 Cal. 172 ; Meyer v. McCabe, 73 Mo. « R v. Inhabitants of Brampton, 10 
 
 336; Alford v. Baker, 58 Ind. 379; East, 382, 389; Cox v. Marrow, 14 
 
 Evans v. Covington, 70 Ala. 440 ; Eog- Ark. 603 ; Bundy v. Hart, 46 Mo. 460 ; 
 
 ers V. Zook, 86 Ind. 337; Stokes v. Plock & Co. v. Cobb, 64 Ala. 127, 156; 
 
 Macken, 62 Barb. 149. Crake v. Crake, 18 Ind. 156 ; Hill v. 
 
 'Lowenstein v. Salinger, 62 Hun, Grigsby, 32 Cal. 55; Walsh v. Dart, 
 
 «23, 42 N. Y. State Rep. 414. 13 "Wis. 635; Bemis v. McKenzie, 13 
 41 
 
Ci2 EULLS OF EVIDENCE. 
 
 states of the Union ; and on a common-law question the courts 
 of one state will assume that the common law is in force in a 
 sister state ^ and in Canada.^ If there is any evidence that 
 the law of a foreign state is different from that of the forum, 
 it cannot be presumed that the laws of the two states are the 
 same.' A foreign law proved by a governmental publication 
 is presumed to continue until the present time, in the absence 
 of proof to the contrary;* and the same rule holds goqd as to 
 a municipal ordinance.' When proof of a law of a foreign state 
 has been given from a publication made under governmental 
 authority, the rules and principles of evidence entitle it to 
 be considered as the existing law of the land in the absence 
 of some equally good evidence that it has been changed or 
 repealed.^ It may be observed that the very notion of a law, 
 as furnishing a rule of government or of conduct, suggests 
 permanence as a characteristic and does not involve the idea 
 of change. Every reasonable presumption must be indulged 
 in favor of the validity of a statute when attacked as uncon- 
 stitutional,' and the burden of showing an act within the ordi- 
 nary scope of legislative powers unconstitutional rests upon 
 those who assert its unconstitutionality.' In the absence of 
 evidence, ordinances and laws shown to have been passed prior 
 to a certain day will be presumed to have been still in force 
 upon that day;' and a statute prescribing the circumstances 
 that shall constitute prima J^acie evidence of a fact may be ap- 
 plied to causes of action which arose out of the state." 
 
 § 2. Acts malum in se. — "While the general rule is that no 
 presumption arises that the statute law of another state or 
 
 Fla. 553 ; Bramhall v. Van Campen, ^ Hanna v. Kankakee, 34 III. App. 
 
 8 Minn. 13 ; Green v. Rugely, 23 Tex. 186 ; State, Consolidated Tractioa Co. 
 
 539; Com. v. Kenney, 120 Mass. 387; v. Elizabeth, 32 L. E. A. 170, 58 N. J. 
 
 Hynes v. McDermott, 82 N. Y. 41. L. 619. 
 
 1 Cooper V. Standley, 40 Mo. App. « Matter of Huss, 126 N. Y. 537, 37 
 138; Osborn v. Blackburn, 78 Wis. N. Y. State Rep. 789. 
 
 209 ; KoUock v. Emmert, 43 Mo. App. 'Sweet v. Eechel, 159 U. S. 380, 40 
 
 566; Davis v. Chicago, R 1 & P. R. L. Ed. 188, 16 Sup. Ct. Rep. 43. 
 
 Co., 83 Iowa, 744 ; Pattrillo v. Alex- 8 People, Henderson v. Westchester 
 
 ander, 29 L. R. A. 616, 96 Ga. 60. County Sup'rs, 147 N. Y. 1, 30 L. R. A. 
 
 2 Jennings v. Grand Trunk R. Co., 74, 69 N. Y. State Rep. 343. 
 
 52 Hun, 227, 23 N. Y. State Rep. 15. 'St. Louis, A. & T. H. R Co. v. Egg- 
 
 sUflEord V. Spaulding, 156 Mass. 65. maun, 161 111. 155, 60 111. App. 291. 
 
 4 Re Huss, 126 N. Y. 537, 44 Alb. m Pennsylvania Co. v. McCann, 31 
 
 L. J. 108, 37 N. Y. State Rep. 789. L. R A. 651, 54 Ohio St 10. 
 
PEESUMPTIVE EVIDENCE. 643 
 
 country is the same as that of a state in which a question de- 
 pending thereon is raised,^ yet robbery, larceny and other acts 
 malum m se, which are criminal offenses by the common law, 
 will in one state be presumed to be crimes in another.^ 
 
 § 3. When there is no presumption that the common law 
 is in force in a state or country. — There is no presumption 
 that the common law is in force in a state or country which 
 has never been subject to the common law of England or in a 
 tribe or nation uncivilized.' The presumption can only be in- 
 dulged with reference to those states which, prior to their 
 becoming members of the Union, were subject to the laws of 
 England; and no such presumption can apply to states in 
 which a government already existed at the time of their acces- 
 sion to this country, as Florida, Louisiana and Texas. With 
 them there is no more presumption of the existence of the 
 common law than there is of any other law. They were in- 
 dependent of the English law in their origin, and hence no pre- 
 sumption of the common law of England can be indulged in.* 
 
 § 4. The term " law " does not include the statute law of 
 the forum. — As a general rule, in commercial transactions 
 the law of another state is presumed to be the same as the law 
 of the forum.' Thus, in every state the presumption is that in 
 every other state three days of grace are allowed on bills of 
 exchange and promissory notes.* But when we introduce what 
 we know to be a new law it would be a perversion of reason 
 to pretend to infer that as soon as we place the new law on 
 our statute books every other state in the Union would adopt 
 the same law.' 
 
 II. PEEStrMPTION AS TO ALTERATION OF INSTRUMENT. 
 
 § 5. Alteration presumed to have been made before exe- 
 cution. — The legal presumption is that an alteration in an in- 
 strument was made prior to or at the time it was delivered.' 
 
 1 Yeaton v. Eagle Oil & Eef. Co., 4 Rep. 73; Leavenworth v. Brock way. 
 Wash. 183. 2 Hill, 201 ; Bemis v. MoKenzie, 13 
 
 2 Cluff V. Mutual Benefit Life Ins. Fla. 558. 
 
 Co., 13 Allen, 808. « Wood v. Carl, 4 Meto. 203. 
 
 'Mortimer v. Marder, 93 Cal. 173. 'yeaton v. Eagle Oil&Ref. Co., 4 
 
 But see James v. James, 81 Tex. 373. Wash. 183. 
 
 < Mortimer v. Marder, 93 Cal. 172. sgtillwell v. Patton, 108 Mo. 352. 
 
 ^Dickerson v. Matheson, 50 Fed, 
 
644 EULES OF EVIDENCE. 
 
 As a general rule, erasures and interlineations appearing on the 
 face of writings are .presumed to have been made before their 
 delivery.^ And an alteration apparent on the face of a writing 
 raises no presumption that it was made after delivery and with- 
 out authority, and the burden is not upon the party offering 
 it in evidence to explain the alteration.^ Interlineations and 
 erasures from a will in the handwriting of testatrix will be 
 presumed to have been made by her in the preparation of the 
 will, and prior to its execution, where she was her own scriv- 
 ener and custodian of the will.^ But on the production of an 
 instrument, if it appears to have been altered it is incumbent 
 on the party offering it in evidence to explain its appearance;* 
 and the legal presumption in favor of innocence does not ex- 
 tend to alterations of negotiable instruments." 
 
 § 7. When party offering an altered paper. must explain 
 it. — He who takes a blemished bill or note takes it with its 
 imperfection on its head. He becomes sponsor for it, and 
 though he may act honestly he acts negligently. It was his 
 fault to take such a note. As notes and bills were intended 
 for negotiation, and as payees do not usually receive them 
 when clogged with impediments to their circulation, there is a 
 presumption that such instrument starts fair and untarnished, 
 which stands until it is repelled ; and a holder ought therefore 
 to explain why he took it branded with marks of suspicion; 
 and therefore the rule is that where the alteration is in a dif- 
 ferent handwriting from the rest of the instrument or in a 
 different ink, or is in the interest of the party setting it up, or 
 is suspicious on its face, the burden of proof rests on the party 
 producing the instrument to explain it to the satisfaction of 
 the tribunal.* 
 
 iMiliken v. Martin, 66 111. 13; Eod- 8 Re Potter's Will, 71 Hun, 77; Lee 
 
 riguez v. Hayes, 76 Tex. 235 ; Brand v. Butler, 167 Masa 436 ; Brim v. 
 
 V. Johnrouk, 60 Mich. 210 ; Re Wood's Flemings, 135 Mo. 597 ; Royse v. State 
 
 Will, 33 N. Y. State Rep. 286 a889) ; Nat. Bank, 50 Neb. 16 ; Carrique v. 
 
 Tatum V. Oalamore, 16 Q. B. 745. Beaty, 28 Ont Rep. 175. 
 
 2 Hagan v. Merchants' & B. Ins. Co., * Rodriguez v. Hayes, 76 Tex. 225 ; 
 
 81 Iowa, 831; Franklin v. Baker, 48 Wilson v. Hotchkiss, 81 Mich. 173. 
 
 Ohio St 296, 39 Am. Sfc Rep. 547 ; 5 Hess' Appeal, 131 Pa. St 31. 
 
 Montgomery v, Crosthwait, 90 Ala. ^ Tillou v. Clinton Ins. Co., 7 Bai'b. 
 
 533 ; Potter v. Kennedy, 81 Iowa, 96 ; 568 ; Croft v. White, 36 Miss. 455 ; 
 
 Conable v. Keeney, 61 Hun, 634, 40 Lawson, Pr. Ev. 389. 
 N. Y. State Rep. 939. 
 
PRESUMPTIVE ETIDENOE. 645 
 
 III. AS TO EECEIPT OF LETTERS. 
 
 It is presumed that a letter properly directed and proved 
 to have been put into the postoffice, or delivered to the post- 
 man, reached its destination at the regular time and was re- 
 ceived by the person to whom it was addressed/ if the party 
 to whom the letter is addressed resides in the city or town 
 to which the letter is addressed.^ Eut such presumption is 
 one of fact and is not conclusive.^ 
 
 IV. AUTHORITY — AGESTOT. 
 
 An attorney who acts as such in a suit is presumed to have 
 been employed.* If goods purchased by a wife extend to 
 matters affecting the household of which she is generally in 
 charge, the presumption is that she had authority from the 
 husband for the purchase.^ The acts of a general agent in 
 exacting an illegal rate of interest on making a loan of his 
 principal's money are presumed authorized.^ But the author- 
 ity of a special agent is never presumed.' 
 
 V. AS TO DELIVERY OP DEED, ETC. 
 
 The signing of a deed by a grantor and its possession by 
 the grantee constitute prima facie evidence of delivery ; * so 
 does the recording of a deed ; " and delivery will be presumed 
 from its being found among the grantee's papers after his 
 death.i" It will be presumed that it was delivered on the day 
 of its date,^^ and that the parties intended it to have legal ef- 
 fect as an absolute conveyance.^^ The assent of minor grantees 
 to the delivery of a deed manifestly to their advantage is pre- 
 
 1 Schutz V. Jordan, 141 U. S. 313 ; « Stein v. Swenson, 44 Minn. 318 
 Benedict v. Grand Lodge A. O. IT. Prichard v. Rudd, 42 U. S. App. 186 
 W., 48 Minn. 471 ; De Jarnette v. Thompson v. Sproul, 179 Pa. St. 366 
 McDanie], 93 Ala. 215 ; Van Doren V. Thomson v. Shelton, 49 Neb. 644 
 Liebman, 34 N. Y. State Rep. 753 Krohn- v. Lambeth, 114 Gal. 303. 
 (1893). 7 Gulf, C. & S. F. R Go. v. Reed, 80 
 
 2 Henderson v. Carbondale Coal, Tex. 362 ; Re James, 146 N. Y. 78. 
 etc. Co., 140 U. S. 25 ; PhcBnix Ins. ^ Devereux v. McMahon, 108 N. G. 
 Co, V. Pickle, 3 Ind. App. 832. 134 ; Furguson v. Bond, 39 W. Va. 561. 
 
 SBuehler v. Gait, 35 111. App. 225; OHeil v. Ridden, 45 Kan. 562. 
 
 Home Ins. Co. v. Marple, 1 Ind. App. lo Allen v. De Groodt, 105 Mo. 442. 
 
 411. 11 Faulkner v. Adams, 126 Ind. 459 ; 
 
 * Shain v. Forbes, 82 Gal. 577. Able v. Brewster, 58 Hun, 605, 34 N. 
 
 5 Sauter v. Scrutchfleld, 28 Mo. App. Y. State Rep. 402 ; Lake Erie & W. 
 
 150 ; Re Brewer A. Corp. (1894), 3 Ch. R, Co. v. "Witham, 155 111. 514. 
 
 373. ' 12 McLean v. Ellis, 79 Tex. 39& 
 
646 EULES OF EVIDENCE. 
 
 sumed;' but such presumption will not arise so long as he is 
 ignorant of the conveyance.* The presumption that a deed 
 was delivered at or before the time it was put on record is not 
 conclusive and may be overcome by evidence that it was not 
 delivered until -later.' 
 
 VI. PKKSUMPTION FKOM POSSESSION AND LAPSE OF TIME. 
 
 § 7. Lawful origin presumed from possession. — Mr. Law- 
 son, in his work on Presumptive Evidence, says: "Where it 
 appears that any person has for a long period of time exer- 
 cised any proprietary right which might have had a lawful 
 origin by grant or license from the public or from a private 
 person, and the exercise of which might and naturally would 
 have been prevented by the persons interested if it had not 
 had a lawful origin, the presumption arises that such right 
 had a lawful origin and that it was created by a proper in- 
 strument which has been lost." * Mere proof of possession is 
 prima facie proof of ownership.-' This applies both to per- 
 sonal and real estate, and the possession of the latter raises 
 a presumption of a seisin in fee; and in the case of a mere 
 trespasser this presumption is conclusive.* It is well settled 
 that prior actual possession of chattels, without title, is good 
 as against a trespasser who has no better right;" and in an 
 action either of trover or trespass for chattels, it is sufficient 
 if the plaintiff, as against the defendant, has the better right to 
 the possession of the property, although he has no actual title 
 thereto ; ^ and a grant of an incorporeal right" may be pre- 
 sumed from its' exercise for a period equal to that fixed by 
 the statute of limitation ; ' but the circumstances of its enjoy- 
 ment must be carefully looked to."* 
 
 1 Sueathen v. Sneathen, 104 Mo. 201 ; 5 Bagley v. Kennedy, 85 Ga. 703. 
 Rhea v. Bagley, 63 Ark. 374, 36 L. R. 6 Molnery v. Irvin, 90 Ala. 375 ; 
 A. 86. Moore v. Chicago, M. & St. P. R Co., 
 
 2 Moore v. Flynn, 135 111. 74. 78 Wis. 120. 
 
 3 Kraemer v. Adelsherger, 122 N. Y. ' Cook v. Patterson, 33 Ala. 103. 
 467, 34 N. Y. State Rep. 24; Town- s Fairbanks v. Philip, 83 Pick. 535; 
 send V. Eackhani, 143 N. Y. 516. Clark v. Draper, 19 N. H. 418; Ames 
 
 < Lawson, Pr. Ev. 403 ; Warner v. v. Palmer, 42 Me. 197. 
 
 Henby, 47 Pa. St. 187 ; Fritz v. Bran- 9 Bass v. Gregory, L. E. 35 Q. B. D. 
 
 don, 78 id. 343 ; Wilson v. Glenn, 68 481. 
 
 Ala. 383; Hanford v. Fitch, 41 Conn. lo Tilbury v. Silva (C. A.), 45 Ch. D. 
 
 486 ; Frantz v. Ireland, 66 Barb. 383 ; 98 ; Griffin v. MuUey, 167 Pa. St 339 ; 
 
 Hassan v. Klee, 181 Pa. St. 117; Fitz- Kurz v. Miller, 89 Wis. 426; Mission, 
 
 gerald v. Quinn, 165 111. 354 ; Stileman- etc. v. Cronin, 143 N. Y. 524. 
 GifEord v. Wilkinson (1897), 3 Q. B. 749. 
 
PBESTTMPTIVE EVIDENCE. 
 
 647 
 
 Nearly every act or document, public or private, will be pre- 
 sumed in support of possession.^ Matters of record generally " 
 will thus be presumed, as also will grants from the state,' let- 
 ters patent,* writs of ad quod damnum and inquisitions thereon,' 
 by-laws of corporations,^ fines? and recoveries,' feoffments,' the 
 enfranchisement of copyholds,' powers in charities to sell lands 
 and sales under such powers,^" and orders of justices of the 
 peace to stop up roads." So, likewise, copyhold customs,i^ ad- 
 mittance to'' and surrender of copyholds," surrender by ten- 
 ant for life'' and unlawful executorship'^ will be presumed from 
 lapse of time. So the- lawful origin of a several fishery," the 
 liability to repair fences,'^ the right to land nets," the death of 
 remote ancestors without issue,^" mesne assignments of lease- 
 holds,^' reconveyances by feoffee to feoffor ^^ and by mortgagee 
 to mortgagor^' have in like manner been presumed. 
 
 § 8. Of conveyances Iby trustees. — It is a general rule that, 
 whenever trustees ought to convey to the beneficial owner, it 
 should be left to the jury to presume that they have so con- 
 veyed, where such presumption can reasonably be made.^* The 
 
 1 Nixon V. Carco, 28 Miss. 414, 431. 
 
 2Plowd. 411; Finch, L. 399, 400; 
 Styl. 22. 
 
 "Mayor of Hull v. Horner, Cowp. 
 103; Gibson v. Clark, \ Jac. & W. 
 159 ; Read v. Brootman, 3 T. R. 158 ; 
 Attorney-General v. Dean of Wind- 
 sor, 24 Beav. 679. 
 
 ^Read v. Brookman, 3 T. R. 158; 
 Pickering v. Lord Stanford, 2 Ves. 
 Jr. 583. 
 
 5R V. Montague, 4 B. & C. 598. 
 
 '° Case of Corporations, 4 Co. 78a. 
 
 'Read v. Brookman, 3 T. R. 151, 
 159 ; Hassleden v. Bradney, T. 4 Geo. 
 Ill, C. B. ; Doe d. Fenwick v. Reed, 
 5 B. & A. 233, 
 . 8 31 Edw. IV, 74 B., pi. 5. 
 
 'Roe d. Johnson v. Ireland, 11 East, 
 389. 
 
 "St. Mary Magdalen v. Attorney- 
 General, 6 H. L. Cas. 189. 
 
 " Williams v. Eyton, 4 H. & N. 357, 
 etc. 
 '2 Doe d. Mason v. Mason, 3 Wils. 63. 
 isWatkins on Copyholds, 369 (ed. 
 
 1797) ; Rawlinson v. Greaves, 3 Bulst. 
 237. 
 
 1* Knight V. Adamson, 3 Freem. 106 ; 
 Wilson V. Allen, 1 Jac. & W. 611. 
 
 15 2 Wms. Sauud. 43 d (6th ed.). 
 
 16 R. V. Barnsley, 1 M. & Selw. 377. 
 1' Malcomson v. O'Dea, 10 H. L. C. 
 
 593. 
 
 18 Barber v. Whiteley, 34 L. J. Q. B. 
 213 ; Boyle v. Tamlyn, 6 B. & C. 329. 
 
 19 Gray v. Bond, 3 B. & B. 667. 
 
 20 Earl of Roscommon's Claim, 6 CI. 
 & F. 97 ; Doe d. Oldham v. WoUey, 8 
 B. & C. 33. 
 
 21 Earl d. Goodwin v. Baxter, 2 W. 
 Bl. 1228 ; White v. Foljambe, 11 Ves. 
 350. 
 
 2^ Tenny d. Whinnett v. Jones, 3 M. 
 & Scott, 473. 
 
 23 Cooke V. Solteau, 3 S. & Stu. 154, 
 etc. 
 
 24 3 Sugd. V. & P. 25, 43, 43 (10th ed.) ; 
 1 Greenl. Ev., g 46 (7th ed.) ; Doe d. 
 Bowerman v. Sybourn, 7 T. R. 3; 
 Keene d. Lord Byron v. Deardon, 8 
 East, 263, 366; Viscountess Stafford 
 
648 EULES OF EVIDBNCE, 
 
 rule has been established to prevent just titles from being de- 
 feated by mere matter of form ; but it is not easy to deter- 
 mine the extent of it. It may, however, be stated generally 
 that the presumption ought to be one in favor of the owner of 
 the inheritance and not one against his interest ; ' and the rule is- 
 subject to this further limitation : that the presumption cannot 
 be called for where it would be a breach of trust in the trust- 
 ees to make the conveyance.^ On the same principle reconvey- 
 ances from the trustees to the cestui que trust will be presumed,* 
 as also, under proper circumstances, will conveyances from old 
 to new trustees.* 
 
 § 9. Prescription— Title by. — According to the common law 
 this species of title cannot be made to land or corporeal here- 
 ditaments,^ — a man may, however, prescribe to hold land as a 
 tenant in common with another ; ' or to such incorporeal rights 
 as must arise by matter of record ; ' and it is in general re- 
 stricted to things which may be created by grant* — such as 
 rights of common, easements, franchises which can be created 
 by grant without record, etc. The reason for this is said to be 
 that every prescription supposes a grant or some equivalent 
 document to have once existed and to have been lost by lapse 
 of time.' In America the same presumption extends to corpo- 
 real as to incorporeal hereditaments.^" According to some emi- 
 nent authorities no claim by prescription could be made at the 
 common law against the state." It is difficult to see the reason 
 
 V. Llewellin, Skin. 78 ; Goodtitle d. 6 Littleton, sec. 310 ; Brooke, Abr., 
 
 Jones V. Jones, 7 T. R 43 ; England in loo. cit, and Trespass, 122. 
 
 d. Syburn V. Slade, 4 T. R. 682; Doe 'Co. Litt. 114a; 5 Co. 1096; Cora, 
 
 d. Eeede v. Reede, 8 T. R 122. Dig., Franchises, A. 2. 
 
 1 Ph. & Am. Ev. 476 ; Doe d. Gra- » 2 Black. Com. 265: 3 Cruise's Dig. 
 ham V. Scott, 11 East, 483; Doe d. 423 (4th ed.); 1 Vent 387. 
 Burdett v. Wrighte, 2 B. & A. 719, 9 2 Black. Com. 365 ; Bull. Co. Litt. 
 720. 261a, n. (1) ; Potter v. North, 1 Ventr. 
 
 2 Ph. & Am. Ev. 476 ; Keene d. 387, 13 Hen. VII., 16 B., pi. 14. 
 Lord Byron v. Deardon, 8 East, 267. "Hurst v. M'Neil, 1 Wash. C. C. 70; 
 
 3 Hillary v. Waller, 12 Ves. 250, 351 ; Farrar v. Merrill, 1 Greenl. 17 ; Will- 
 3 Sugd. V. & P. 196 (10th ed.). iams v. Donnell, 2 Head (Tenn.), 695 ; 
 
 4 Roe d. Eberall v. Lowell, H. Bl. Glass v. Gilbert, 58 Pa St. 266 ; Grimes 
 446. V. Bastrop, 26 Tex. 810 ; Townsend v. 
 
 5 Doc. & Stud. Dial, 1, o. 8 ; Finch, Downer, 43 Vt. 183 ; Rooker v. Per- 
 Comm. Laws, 31 ; Vin. Abr., Presc, kins, 11 Wis. 79; Carter v. Tinicum 
 B., pi. 2 ; Brooke, Abr., Presc, pi. 19 ; Fishing Co., 77 Pa. St 310. 
 Wilkinson v. Proud, 11 M. & W. 33. n 3 Roll. Abr. 264, Preseription, C. ; 
 
PKBSUMPTITE ETIDENCE, 6i& 
 
 of this, if it be true, as stated in most of the books, that every 
 prescription presupposes a grant before the time of legal mem- 
 ory ; and it is well known that a grant within the time of legal 
 memory may be presumed against the state on the principle 
 "nullum tempus ocourrit regi" — a principle which has been 
 broken in upon by statutes. 
 
 At common law every prescription must have been laid in 
 the tenant of the fee-simple, and parties holding any inferior 
 interest in the land could not prescribe, by reason of the im- 
 becility of their estates, but were obliged to prescribe under 
 cover of the tenant in fee, by alleging his immemorial right to 
 the subject-matter of the claim and deducing their own title 
 from him.' If the presumption be " conclusive," it is a ^rce- 
 sumptio juris et dejure, and not to be rebutted by evidence; 
 whereas the clear meaning of the cases is that the jury ought 
 to make the presumption and act definitely upon it unless it 
 is encountered by adverse proof. " The presumption of right, 
 in such cases," says Mr. Starkie,^ "is not conclusive; in other 
 words, it is not an inference of mere law to be made by the 
 courts; yet it is an inference which the courts advise juries to 
 make wherever the presumption stands unrebutted by con- 
 trary evidence." ' In order to raise this presumption against 
 the owner of the inheritance the possession must be with his 
 acquiescence ; and such a possession, with the acquiescence of a 
 ' tenant for life or other inferior interest' in the land, although 
 evidence against the owner of the particular estate, will not 
 bind the fee.* But the acquiescence of the owner of the in- 
 heritance may either be proved directly or inferred from circum- 
 stances.' And where the time has once begun to run against 
 the tenant of the fee the interposition of a particular estate 
 does not stop it.' This presumption only obtains its practically 
 conclusive character when the evidence of enjoyment during 
 the required period remains uncontradicted and unexplained. 
 But the fact of a possession for a less period than twenty years 
 
 Com. Dig., Praesc, F. 1 ; Plowd. 2iZ, E^glish v. Register, 7 Ga. 387 ; Nieto 
 
 333; 38 Ass., pi. 23; Hargr. Co. Litt;. v. Carpenter, 31 Cal. 455; Nichols v. 
 
 119a, n. (1), 114&; 3 Inst. 168. Gates, 1 Conn. 318. 
 
 1 3 Black. Com. 364, 365. * 3 Wms. Saund. 175 (6th ed.). 
 
 ^ 3 Starkie, Ev. 911 (3d ed.). 5 Gray v. Bond, 3 B. & B. 667. 
 
 3 Rocker v. Perkins, 14 Wis. 79 ; 6 Cross v. Lewis, 3 B. & C. 686. 
 Irvin T. Fowler, 5 Bob. (N. Y.) 483 ; 
 
650 . BULBS OF EVIDENCE. 
 
 is still a circumstance from which, when coupled with other 
 evidence, a jury may infer the existence of a grant.^ The pos- 
 session of real estate or the reception of the rents and profits 
 from the person in possession is 'prima facie evidence of the 
 highest estate in that property, namely, a seisin in fee.^ The 
 rule is that, where the facts show the long-continued exer- 
 cise of a right, the court is bound to presume a legal origin, 
 if such be possible, in favor of the right.' And in such cases 
 the courts have presumed not only that the right had a legal 
 origin, but many collateral facts, so as to render the title of 
 the possessor complete.* 
 
 § 10. Dedication of highway. — The presumption is bf the 
 dedication of highways to the public. "A road," it was said 
 in K. V. Mellor,^ " becomes public by reason of a dedication 
 of the right of passage to the public by the owner of the 
 soil and of an acceptance of the right by the public." And 
 such dedication may be either general or limited; e. g., the 
 owner of the soil may dedicate a footway to the public, sub- 
 ject to his right of periodically plowing it up.^ The fact of 
 dedication may either be proved directly or inferred from cir- 
 cumstances,' especially from that of permissive user on the 
 part of the public. Where no acts of this nature have been 
 done, there is no fixed rule as to the length of user, which is 
 sufficient, when unaccompanied by other circumstances, to con- 
 stitute presumptive evidence of a dedication; but unquestion- 
 ably a much shorter time will suffice than is required to raise 
 the presumption of a grant among private individuals. In the 
 case of The Eugby Charity v. Merry weathei-* it was said, "in 
 
 1 Bealey v. Shaw, 6 East, 215 ; Hall * Co. Litt. 66; Jenk. Cent 4 Cas. 77 ; 
 v; Swift, 4 Blng. N. C. 381, 383; Palm. 427; Desverges v. Desverges, 
 Hawkins v. Commissioners, 2 Allen, 31 Ga. 733; Austin v. Baile}-, 37 Vt. 
 254 ; Ward v. Mcintosh, 12 Ohio St. 219, 223 ; Freemen v. Thayer, 33 Me. 
 231 ; Wendell v. Blanchard, 3 N. H. 76 ; Winkely v. Kaime, 33 N. H. 268 ; 
 456 ; Austin v. Bailey, 37 Vt. 319 ; Coxe v. Deringer, 78 Pa. St 271. 
 McCall V. Pryor, 17 Ala. 533 ; Hunt v. » 1 B. & Ad. 38, 37 ; R. v. St Bene- 
 Utter, 15 Ind. 318. diet 4 B. & A. 447. 
 
 2 B. N. P. 103 ; Jeyne v. Price, 5 « Mercer v. Woodgate, L. R 5 C. P. 
 Taunt 326 ; Deen d. Tazwell v. Bar- 26 ; Arnold v. Blaker (in Cam. Scac), 
 nard. Cow p. 595; Crease v. Barrett, 6 id. 433. 
 
 1 C, M. & R 931; R v. Overseers of 'R v. Wright, 3 B. & Ad. 681; 
 
 Birmingham, 1 B. & S. 763, 768, 770 ; Surrey Canal Co. v. Hall, 1 Man. & Gr. 
 
 Metters v. Brown, 1 H. & C. 086, 689. 393 ; R v. St Benedict, 5 B. & A. 447. 
 
 3 Johnson v. Barnes, L. R. 7 C. P. 8 11 East, 376, n, 
 592; S. C, In Cam. Scac, 8 id. 537. 
 
PEESOMPTIVE EVIDENCE. 651 
 
 a great case which was much contested, six years was held 
 sufficient;" and where the existence of a highway would be 
 beneficial to the owner of the soil, a dedication has been pre- 
 sumed from a user of four or five years.^ But the animus or 
 intention of the owner of the soil in doing the act or permit- 
 ting the passage must be taken into consideration.^ " In order," 
 it was said in Poole v. Huskinson,' " to constitute a valid ded- 
 ication to the public of a highway by the owner of the soil, it 
 is clearly settled that there must be an intention to dedicate; 
 there must be an animus dedicandi, of which the user by the 
 public is evidence, and no more ; and a single act of interruption 
 by the owner is of much more weight upon a question of inten- 
 tion than many acts of enjoyment;" and this animus or in- 
 tention is to be determined by the jury.* But the dedication 
 of a highway to the public must be the act, or at least with 
 the consent, of the owner of the fee ; the act or assent of a 
 tenant of any less interest will not suffice,* although the as- 
 sent of the owner of the inheritance may be inferred from cir- 
 cumstances.* 
 
 § 11. License. — If a man opens his land so that the public 
 pass over it continually, the public, after a user of a very few 
 years, will acquire a right of way,'' unless some act be done by 
 the owner to show that he had only intended to give a license 
 to pass over the land and not to dedicate a right of way to 
 the public* Among acts of this kind may be reckoned the 
 putting up a bar or excluding by positive prohibition persons 
 from passing.^ The common course is by shutting up the pas- 
 sage for one day in each year.^" But keeping a gate across a 
 road is not conclusive evidence against its being a public way, 
 
 1 Jarvis v. Dean, 3 Bing. 447. 16; Jarvis v. Dean, 3 Bing. 447; R. 
 
 2 Poole V. Huskinson, 11 M. & W. v. Hudson, 2 Str. 909; Harper v. 
 827; E. V. Inhabitants of East Mark, Charlesworth, 4 B. & C. 574. 
 
 11 Q. B. 877. 'The British Museum v. Finniss, 
 
 8 11 M. & W. 837, 830. 5 C. & P. 460 ; Lade v. Shepherd, 3 
 
 < Barraclough v. Johnson, 8 A. & E. Str. 1004. 
 
 99; Surrey Canal Co. v. Hall, 1 Man. 8 Barraclough v. Johnson, 8 Ad. & 
 
 & Gr. 393. E. 99. 
 
 5 Baxter v. Taylor, 1 Nev. & M. 11 ; » R. v Lloyd, 1 Camp. 260 ; Roberts 
 
 a y. Bliss, 7 A. & E. 550; Wood v. v. Karr, id. 363, n.; Lethbridge v. 
 
 Veal, 5 B. & A. 454. Winter, id. 263, n. 
 
 » Winterbottom v. Lord Derby, L. i" The British Museum v. Finniss, 5 
 
 R 2 Ex. 316; Davies v. Stephens, 7 C. & P. 460, 465. 
 Car. & P. 570; R. v. Barr, 4 Camp. 
 
652 EULES OF EVIDENCE. 
 
 for it may have been granted with the reservation of keeping 
 a gate in order to prevent cattle from straying.' 
 
 § 13. Extinguishment of easement hy cessation of enjoy- 
 ment. — ■ Though the law regards with less favor the acquisi- 
 tion and preservation of these accessorial rights than those 
 which are naturally incident to property, and therefore does 
 not require the same amount of proof of the extinction as of 
 the original establishment of the right, yet as an easement, 
 when once created, is perpetual in its nature, being attached 
 to the inheritance and passing with it, it would seem that 
 some acquiescence on the part of the owner of the inheritance 
 must be necessary to give validity to any act of abandonment. 
 
 Easements are divided into continuous and intermittent. 
 As to continuous easements, the correct inference from the 
 cases seems to be that there is no time fixed by law during 
 which the cessation of enjoyment must continue in order to 
 raise the presumption of an abandonment; but it is for the 
 jury to take all the circumstances of the case into their con- 
 sideration in order to see if there has been an intention to re- 
 nounce the right.^ Thus, where a window has been shut up 
 for twenty years, the case stands as if it had never existed. It 
 seems clear that mere intermittance of the user or slight alter- 
 ations in the mode of enjoyment will not be sufficient to de- 
 stroy the right, when circumstances do not show any intention 
 of relinquishing it;' while, on the other hand, a much shorter 
 period than twenty years, when it is accompanied by circum- 
 stances such as disclaimer or other indication of intention to 
 abandon the right, will be sufficient to raise the presumption 
 of extinguishment.* 
 
 Wo case can be put in which any presumption has been made, 
 
 1 Davies v. Stephens, 7 C. & P. 570. citing Payne v. Sheddon, 1 M. & Rob. 
 
 2GaIe on Easements, 535 (4th ed.), 382; R. 'v. Inhabitants of Chorley, 13 
 
 citing Liggins v. Inge, 7 Bing. 683, Q. B. 515 ; Ward v. Ward, 7 Exch. 
 
 693 ; Hale v. Oldroyd, 14 M. & W. 838 ; LotcII v. Smith, 3 C. B. (N. S.) 
 
 788 ; Lawrence v. Ober, 3 Camp. 514 ; 120. 
 
 Farrar v. Cooper, 34 Me. 394, 400; ^Gale on Easements, 567 (4th ed.); 
 Hatch V. Dwight, 17 Mass. 289; Hay- Norburg v. Meade, 3 Bligh, 241, 342; 
 ford V. Spoltesfield, 100 Mass. 491; Harvie v. Rogers, 3 Bligh (N. S.), 440 : 
 Wiggins V. McCIeary, 49 N. Y. 346 ; R. v. Chorley, 13 Q. B. 515 ; Ward v. 
 Jennison v. Walker, 11 Gray, 423; Ward, 7 Exch. 838; Parkins v. Dun- 
 Owen V. Field, 103 Mass. 90, 114. ham, 3 Strobh. 224; Grain v. Fox, 16 
 
 3 Gale on Easements, 563 (4th ed.), Barb. 184. 
 
PEESUMPTIVE EVIDENCE. C53 
 
 «xcept wbere a title has been shown by the party who calls 
 for the presumption, good in substance, but wanting some col- 
 lateral matter to make it complete in point of form. In such 
 case, where the possession is shown to have been consistent 
 with the existence of the fact directed to be presumed, and in 
 such cases only, has it ever been allowed. Presumptions of 
 this kind are entitled to additional weight if the possession 
 would otherwise be unlawful or incapable of satisfactory ex- 
 planation.i On the other hand, the terras in which the pre- 
 sumption will be brought under the notice of the jury are con- 
 siderably influenced by the nature of the document or other 
 matter to be presumed, the facility or difHculty of adducing 
 more direct proof, and by the right in question being favored 
 or disfavored by law. 
 
 § 13. Land under water. — The soil of the sea-shore be- 
 tween high and low water-mark is presumed to belong to the 
 state; ^ and so is the soil at the bottom of a navigable river;' 
 so the shore of the sea or of a tidal river between ordinar}'- 
 high and low water-mark is presumed to be extraparochial.* 
 Whether the soil of lakes prima facie belongs to the owners 
 of the lands or manors on either side, ad medium filum aqum, 
 or to the crown, seems a disputed point ; * and it is a point bare 
 of authority whether unoccupied islands within three miles 
 of the shore belong to the state or to the owner of the shore 
 above high water-mark. Such islands, however, are within 
 the territorial jurisdiction of the state, and there seems to be 
 little doubt that the state has a right of property in them 
 'also. Where the river is not navigable, the bed is presumed 
 to be the property of the owners on each side, ad medium 
 filum aqum^ The same is true of great rivers not tidal.' Soil 
 
 1 1 Greenl. Ev., § 46 (7th ed.). » Marshall v. UMswater Steam Nav. 
 
 2 Blundell v. Catterall, 5 B. & A. Co., 3 B. & S. 570. 
 
 368, 304 ; Attorney-General v. Cham- « Carter v. Murcot, 4 Burr. 2162 ; R. 
 
 bers, 4 De G., M. & G. 206, 5 Jur. (N. v. Inhabitants of Landulph, 1 Moo. & 
 
 S.) 745. E. 393 ; Lord ^. Commissioners of 
 
 3 Malcolmson v. O'Dea, 10 H. L. C. Sidney, 13 Moo. P. C. 473 ; M'Cannon 
 593, 618 ; Pollard v. Hagan, 3 How. v. Sinclair, 2 E. & E. 53 ; Boston v. 
 (U. S.) 212. Richardson, 13 Allen, 146 ; Walton v. 
 
 * Ipswich Dock Commissioners v. TifiEt, 14 Barb. 316; Manufacturing 
 
 Overseers of St Peter's, Ipswich, 7 Co. v. Smith, 34 Conn. 463. 
 
 B. & S. 310 ; Bridgewater Trustees v. ' Berry v. Snyder, 3 Bush, 266 ; 
 
 Booth, id. 348, L. R. 3 Q. B. 4 Jones v. Soulard, 24 How. 41 ; Arnold 
 
65 J: 
 
 EULES OP EVIDENCE. 
 
 under tide-waters is presumed to be held by the state as 
 trustee for the public.^ And it is presumed that riparian pro- 
 prietors own ad medium filum aqum, subject to the public ease- 
 ment of navigation.^ 
 
 § 14. Highways. — The same principle holds in the case of a 
 highway, the soil of which is taken prima facie to belong to 
 the owners of the adjoining lands usque ad medium filum, vim,^ 
 and it also applies to the case of a private road.* Strips of 
 land adjoining a road are presumed to belong to the owner 
 of the adjoining inclosed land,' although this presumption also 
 may be rebutted,* and is either done away, or considerably 
 narrowed, by proof that those strips communicated with open 
 commons or larger portions of land.' 
 
 § 15. Walls, bants, etc. — Where an inclosure is bounded by 
 a bank or ditch, the land which constitutes the ditch is jpriina 
 
 V. Elmore, 16 Wis. 509; Magnolia v. 
 Marshall, 39 Miss. 109 ; Rice v. Ruddi- 
 man, 10 Mich. 135; People v. Canal 
 Appraisers, 33 N. Y. 461 ; Haight v. 
 Keokuk, 4 Clarke (Iowa), 199; Mo- 
 nongahela Bridge Co. v. Kirk, 46 Pa. 
 St. 113. 
 
 1 United States v. Pacheco, 8 Wall. 
 587, 590 ; Stevens v. Paterson, etc. R. 
 Co., 5 Vroom, 533, 545, 555 ; Tinicutn 
 Fishing Co. v. Carter, 61 Pa. St. 81 ; 
 Pollard's Lessee v. Hagan, 3 How. 
 813; Gough v. Bell, 31 N. J. L. 156; 
 New Orleans v. United States, 10 Pet. 
 663, 737 ; Mahler v. Norwich & N. Y. 
 Trans. Co., 35 N. Y. 358; United 
 States V. Smiley, 6 Sawy. 640; Den 
 V. Jersey Co., 15 How. 486 ; Barney 
 Y. Keokuk, 94 U. S. 384; Paul v. 
 Hazleton, 37 N. J. L. 106; State v. 
 Sargent, 45 Conn. 358; Moulton v. 
 Libbey, 37 Me. 473 ; Clement v. Burns, 
 43 N. H. 609; Providence Co. v. 
 Steamship Co., 18 R. L 348 ; Dunlap 
 V. Com., 108 Pa. St. 607; People v. 
 New York & S. I. Ferry Co., 68 N. Y. 
 71; Towle v. Remson, 70 N. Y. 303; 
 Manchester v. Massachusetts, 139 U. 
 S. 340, 864; CorBeld v. Coryell, 4 
 Wash. C. C. 371 ; Com. v. Manchester, 
 153 Mass. 330 ; Weston v. Sampson, 8 
 Gush. 347; Smith v. Maryland, 18 
 
 How. 71, 74; McCready v. Virginia, 
 94 U. S. 391 ; Hardin v. Jordan, 140 
 U. S. 341 ; Durham v. Lamphere, 3 
 Gray, 368 ; Haney v. Compton, 36 N. 
 J. L. 507; Blanchard v. Potter, II 
 Ohio St. 138; Boston v. Richardson, 
 105 Mass. 351 ; Middleton v. Pritchard, 
 3 Scam. (111.) 510. 
 
 2Deerfield v. Arms, 17 Pick. 41; 
 Child V. Starr, 4 Hill (N. Y), 369; 
 Adams v. Pease, 3 Conn. 481 ; Saulet 
 V. Shepherd, 4 Wall. 503. 
 
 3 Berry and Goodman's Case, 8 
 Leon. 148 ; Grose v. West, 7 Taunt. 39; 
 Anon., Lofft, 358 ; Cooke v. Green, 11 ' 
 Price, 739; Salisbury (Marquis of) v. 
 Great Northern R Co., 5 Jur. (N. S.) 
 70 ; Berridge v. Ward, 10 C. B. (N. S.) 
 400 ; R. V. Strand Board of Works, 4 
 
 B. & S. 536 ; Harris v. Elliott, 10 Pet. 
 3.5, 53; Morrow v. Williard, 80 Vt, 
 118 ; Newhall v. Ireson, 8 Cush. 595 ; 
 Cox V. Freedley, 33 Pa. St. 184. 
 
 < Holmes v. Bellingham, 7 C. B. 
 (N. S.) 339. 
 
 6 Doe d. Pring v. Pearsley, 7 B. & C. 
 304; Steel v. Prickett, 3 Stark. 463; 
 Scoones v. Morrell, 1 Beav. 851 ; Doe 
 d. Barrett v. Kemp, 7 Bing. 338. 
 
 ^ Doe d. Harrison v. Hampson, 4 
 
 C. P. 867. 
 
 ' Grose v. West, 7 Taunt. 39. 
 
BEESTJMPTITE EVIDENCE. 655 
 
 facie part of the close, although it be on the outside of the 
 hank;' and in the case of party-walls, where the quantity of 
 land contributed by each owner is unknown, the common use 
 of the wall is prima facie evidence that it and the land on 
 which it is built are the undivided property of both.^ 
 
 §16. Legal title presumed from possession when. — In 
 most of the states of the United States there is a disposition 
 to fix a period beyond which human transactions shall not be 
 open to judicial investigation. Mr. Lawson, in his work on 
 Presumptive Evidence, says : " When a person is in possession 
 of property and is shown entitled to the beneficial ownership 
 thereof, the presumption is that every instrument has been 
 executed, and everything has been done to render his title 
 legal.'" The value of the presumption of title arising from 
 possession depends largely upon proof of uninterrupted enjoy- 
 ment for a long time.* But possession of land under claim of 
 ownership is prima facie evidence of title in the occupant.'* 
 Possession is not presumed in plaintiff in a bill quia timet, but 
 must be afiirmatively alleged and proved.^ Possession of per- 
 sonal property is prima facie evidence of ownership.' Thus, 
 the possession of a negotiable instrument by the payee thereof 
 or his representatives is prima facie evidence of ownership.* 
 
 VII. INNOCENCE PRESUMPTIONS IN FAVOE OF. 
 
 § 17. In general. — The presumption of innocence is not a 
 mere phrase without meaning; it is in the nature of evidence 
 for the defendant ; it is as irresistible as the heavens till over- 
 
 1 Doe d. Pring v. Pearsley, 7 B. & Salazar v. Long well (N. M.), 25 Pac. 
 C. 304, 307 ; Vowles v. Miller, 3 Taunt Rep. 927 ; Bagley v. Kennedy, 85 Ga. 
 137, 138. 703 ; Hindson v. Ashby (1896), 2 CIi. 1. 
 
 2 Wiltshire v. Sidford, 8 B. & C. e Livingston v. Hall, 73 Md. 3><6; 
 259, n, ; Cubitt v. Porter, id. 257. Bullook v. Rouse, 81 Cal. 590 ; Brown 
 
 8 Lawson, Pr. Ev. 419 ; Den v. Gas- v. Roberts, 75 Tex. 103 ; Bowen v. 
 
 ton, 25 N. J. L. 615 ; Fitzgerald v. Swander, 121 Ind. 164 ; Tabor v. Judd, 
 
 Quinn, 165 111. 354. 63 N. H. 388. 
 
 < Jackson v. Harder, 4 Johns. 203 ; ' Lowry v. Hatley, 30 111. App. 297 ; 
 
 Metier v. Miller, 139 111. 630; Heller Crawford v. Kindbrougli, 76 Ga. 299; 
 
 V. Peters, 140 Pa. St. 648 ; Walker v. Abercrombie v. Stillman, 77 Tex. 589. 
 
 Caradine, 78 Tex. ^89 ; Garner v. 8 Bobb v. Letcher, 30 Mo. App. 43 ; 
 
 Providence Second Nat. I^ank, 151 Hunter v. Harris, 24 111. App. 637; 
 
 IT. S. 420 ; Hasson v. Klee, 181 Pa. St Steeds v. Steeds, L. R. 23 Q. B. D. 537, 
 
 113. 41 Alb. L. J. 37. 
 
 « Doherty v. Matsell, 119 N. Y. 646 ; 
 
656 EULES OF EVinENOB. 
 
 corae ; it hovers over the prisoner as a guardian angel through- 
 out the trial ; it goes with every part and parcel of the evi- 
 dence. "Where the facts of a case are consistent both M'ith 
 honesty and dishonesty, a judicial tribunal vcill adopt the con- 
 struction in favor of innocence.^ To make out the guilt of a 
 person charged with crime, the prosecution is required to prove 
 every material allegation and every ingredient of the crime. 
 Until this is done the accused is presumed innocent.^ 
 
 § 18. Absence of motive. — Since an action without a mo- 
 tive would be an effect without a cause, a presumption is con- 
 sequently created in favor of innocence from the absence of 
 all apparent Inducements to the commission of the imputed 
 offense. But the investigation of human motives is often a 
 matter of great difficulty, from their latency or remoteness; 
 and experience shows that aggravated crimes are sometimes 
 committed from very slight causes, and occasionally even with- 
 out any apparent or discoverable motive. This particular pre- 
 sumption would therefore seem to be applicable only to cases 
 where the guilt of the individual is involved in doubt; and 
 the consideration for the jury in general is rather whether, 
 upon the other parts of the evidence, the party accused has 
 committed the crime, than whether he had any adequate mo- 
 tive. The jprima facie presumption in favor of innocence, 
 from the absence of all apparent motive, is greatly strength- 
 ened where all inducement to the commission of the imputed 
 crime is opposed by strong counteracting motives ; as where a 
 party indicted for arson with intent to defraud an insurance 
 office had furniture on the premises worth more than the 
 amount of his insurance ; ' or where a party accused of mur- 
 der had a direct interest in the continuance of the life of the 
 party supposed to have been murdered. 
 
 §19. Good character of party accused. — Since falsehood, 
 concealment, flight and other like actions are generally re- 
 garded as indicatives of conscious guilt, it naturally follows 
 that the absence of these marks of mental emotion, and still 
 more a voluntary surrender to justice when the party had 
 the opportunity of concealment or flight, must be considered 
 
 1 Greenwood v. Lowe, 7 La. Ann. son y. State, 89 Ala. 121 ; State v. 
 197 ; Grant v. Riley, 15 App. Div. 190. Rogers, 119 N. C. 793. 
 
 2 Farley v. State, 137 Ind. 419 ; Gib- 3 Mayer v. Fidelity Mut Ina Ass'n, 
 
 47 U. S. App. 322. 
 
PRESUMPTIVE EVIDENCE. 657 
 
 as leading to the opposite presumption, and these considera- 
 tions are frequently urged with just effect as indicative of 
 innocence; but the force of the' latter circumstance may be 
 weakened by the consideration that the party has been the 
 object of diligent pursuit. In forming a judgment of crim- 
 inal intention, evidence that the party has previously borne 
 a good character is often highly important, and, if the case 
 hangs in even balance, should make it preponderate in his 
 favor. But if the evidence of guilt be complete and convinc- 
 ing, testimony of previous good character cannot and ought 
 not to avail. 
 
 § 20. Alibi. — Of all kinds of exculpatory evidence, that of 
 an alihi, if clearly established by unsuspected testimony, is 
 the most satisfactory and conclusive. While the foregoing 
 considerations are more or less of an argumentative and in- 
 conclusive character, this defense, if the element of time be 
 definitely and conclusively fixed, and the accused be shown 
 to have been at some other place at the time, is absolutely in- 
 compatible with and exclusive of the possibility of the truth 
 of the charge. The credibility of an alihi is greatly strength- 
 ened if it be set up at the moment when the accusation is first 
 made and be consistently maintained throughout the subse- 
 quent proceedings. On the other hand, it is a material cir- 
 cumstance to lessen the weight of this defense if it be not 
 resorted to until some time after the charge has been made, 
 or if nothing happened immediately after the transaction to 
 lead the witnesses to watch so as to be accurate in the hour 
 or time to which they speak, even supposing them to depose 
 under no improper bias or influence. The defendant does not 
 have the burden of proving an alili to the reasonable satisfac- 
 tion of the jury; but the burden is on the people to show his 
 presence at the time and place of the commitment of the 
 orime.i 
 
 § 21. Insanity. — The defendant in a criminal action has the 
 right to submit material evidence in his behalf to the jury 
 in order that it may pass upon its weight and credibility, and 
 if he is deprived of that right it is a substantial one which, 
 when properly presented to the court by an exception, will 
 
 1 State V. Ardoin, 49 La. Ann. 1145; Eeed, 63 Iowa, 40; Grayely v. State, 
 Casey v. State, 49 Neb. 403; State v. 38 Neb. 871. 
 43 
 
658 EULES OF EVIDENCE. 
 
 require a reversal of his conviction. This does not in the least 
 affect the existence and force of the other and well-known rule 
 that a new trial will not be' granted for an erroneous ruling 
 of the court upon some legal proposition where the appellate 
 tribunal can see that by no possibility could the error have 
 worked any harm to defendant. In the case of the rejection 
 of important, material and competent evidence for the defend- 
 ant, the court cannot say, unless in a most extraordinary case, 
 that by no possibility could the error harm the defendant, or 
 that such error was only technical and no substantial right of 
 the defendant was affected. A substantial right of defendant 
 in such case is affected, even though the appellate court would, 
 with the evidence before it, still come to the same conclusion 
 as the jury did without it. Where the evidence of sanity or 
 insanity is equally balanced conviction cannot be had.' 
 
 § 23. Communications to defendant. — Where the defense 
 is insanity, and when evidence has been given tending- some- 
 what toward proof of a diseased condition of the brain of de- 
 fendant before certain communications were made to him, any 
 communications made to him after the time when such alleged 
 diseased condition of mind appeared may be proved for the 
 purpose of showing the effect it had upon defendant's mind, 
 and to show a reason for an alleged change in the appearance 
 and conduct of the accused, and to prove that in truth such a 
 communication, acting upon a diseased and weakened brain, 
 produced insanity at the time of the commission of the crime. 
 It is competent for the reason that all the facts are material 
 for the purpose of enabling the jury to say what was the con- 
 dition of the mind of defendant when the deed was perpetrated. 
 The defense is entitled to prove more than the fact that, after 
 a certain time when something was told defendant, he exhib- 
 ited certain changes of deportment or appearance. He is en- 
 titled to have the jury see that there was a cause sufficient 
 to account for and to create such alteration in conduct and ap- 
 pearance. It is admissible for the same reason that evidence 
 is competent to show that a party had a fall on his head, or 
 had been a sufferer for years from some kind of physical ail- 
 ment which had naturally a depressing influence on his mind. 
 In fine, the evidence is admitted on the ground that it is cor- 
 
 1 Davis V. United State8, 160 U. S. 469 ; State v. Scott, 49 La. Ann. 253. 
 
PEESUMPTIVE EVIDENCE. 659 
 
 roborative, more or less strongly, of the mental condition which 
 the other and separate evidence in the case tends to prove. In 
 People V. "Wood ^ there had been a large amount of evidence 
 already given to show, prior to the communication, a diseased 
 and depressed mental condition of the defendant ; and the com- 
 munication made to him by his wife was offered for the purpose 
 of showing its effect upon his mind, and as furnishing an ade- 
 quate cause, under all the circumstances, for the alleged fact 
 that he was insane when the act was done. In that case the 
 court say; "It is not admissible for the purpose of showing 
 sudden passion, because it is not limited to any particular time. 
 It is not necessary that the evidence should already show that 
 the defendant was actually insane. Whether it is necessary, 
 in all cases where the defense of insanity is interposed, to show 
 the existence of a prior morbid and diseased condition of the 
 mind before evidence of certain communications to him should 
 be admitted, is not fully settled. Deliberation is not the least 
 inconsistent with the legal insanity of the person deliberating, 
 and hence the fact of deliberation offers no obstacle to the re- 
 ception of the evidence. An insane man frequently deliber- 
 ates, and after the most mature deliberation commits acts which 
 but for his insanity would be crimes. The question always is, 
 not did the party deliberate, but was he at the time insane 
 within the legal definition of that term?"^ 
 
 VIII. WHAT THE PEOSECUTION MUST ESTABLISH. 
 
 §33. In general. — Every allegation of the commission of 
 legal crime involves the establishment of two distinct propo- 
 sitions, namely: that an act has been committed from whi"ch 
 legal responsibility arises, and that the guilt of such an act 
 attaches to a particular individual, though the evidence is not 
 always separable into distinct parts, or applicable to each of 
 those propositions. Such a complication of difficulties occa- 
 sionally attends the proof of crime, and so many cases have 
 occurred of convictions of alleged offenses which have never 
 
 1 126 N. Y. 249, 36 N. Y. State Rep. Woodley, 166 Pa St. 463; State v. 
 
 953. King, 47 La. Ann. 28 ; Com. v. Wei- 
 
 2 Cannon v. State, 60 Ark. 564 ; State ling, 164 id. 559 ; State v. Stewart, 47 
 
 V. Harrigan, 9 Houst. (Del.) 369 ; State La. Ann. 410. 
 V. Vallery, 47 La. Ann. 153 ; Com. v. 
 
'660 EULES OF EVIDENCE. 
 
 existed, that it is a fundamental and inflexible rule of legal 
 procedure, of universal obligation, that no person shall be re- 
 quired to answer, or be involved in the consequences of guilt, 
 without satisfactory proof of the corpus delicti, either by 
 direct evidence or by cogent and irresistible grounds of pre- 
 sumption.' If it be objected that vigorous proof of the corpus 
 delicti is sometimes unattainable, and that the effect of exact- 
 ing it must be that crimes will occasionally pass unpunished, 
 it must be admitted that such may possibly be the result; but 
 it is answered that where there is no proof, or, which is the 
 same thing, no sufficient legal proof, of crime, there can be no 
 legal criminality. In penal jurisdiction there can be no middle 
 terra ; the party must be absolutely and unconditionally guilty 
 or not guilty. Not under any circumstances can considera- 
 tions of supposed expediency supersede the immutable obliga- 
 tions of justice; and occasional immunity of crime is an evil of 
 far less magnitude than the punishment of the innocent.^ Rea- 
 sonable doubt is one arising out of the evidence, and not an 
 imaginary one, a fanciful conjecture or strained inference, but 
 such a doubt as a reasonable man would act upon or decline to 
 act upon when his own concerns were involved, and one for 
 Avhich good reason based on the evidence or want of evidence 
 could be given; thus, the degree of satisfaction and certainty 
 required for conviction is not absolute conviction or certainty, 
 but the evidence must produce such effect upon the mind of 
 the individual juror that after its consideration he can, in view 
 of his oath, have no reasonable doubt of the guilt of the ac- 
 cused.' To convict upon circumstantial evidence, the inde- 
 pendent coincident facts and circumstances must be consistent 
 with each other, and point to the defendant's guilt beyond a 
 reasonable doubt.'* A state of facts rendering it impossible for 
 the accused to have been present at the time an offense was 
 committed must be proved to the reasonable satisfaction of the 
 jury to establish an alibi, but need not be proved beyond a 
 reasonable doubt.* 
 
 1 Rex V. Burdette, 4 B. & Aid. 23. ■> United States v. Candler, 65 Fed. 
 
 2 United States v. McCord, 73 Fed. Rep. 308; Barnes v. State, 111 Ala. 
 Rep. 159 ; Barker v. Com., 90 Va. 830. 56 ; State v. Taylor, 134 Mo. 109. 
 
 3 United States v. Cassidy, 67 Fed. » Boston v. State, 94 Ga. 590 ; 
 Rep. 698 ; People v. Smith, 105 Cal. Nightengale v. State, id. 395. 
 
 676. 
 
PEESUMPTIVE EVIDENCE. GOl 
 
 § 24. Corpus delicti.— The clearest principles of justice re- 
 quire that, whatever the nature of the crime, the amount or 
 the intensity of the proof shall in all cases be such as to pro- 
 duce the full assurance of moral certainty. Eut it is clearly 
 established that it is not necessary that the corpus delicti 
 should be' proved by direct and positive evidence. Crimes,^ 
 and especially those of the worst kinds, are naturally com- 
 mitted at chosen times and in darkness and secrecy, and 
 human tribunals must act upon such indications as the cir- 
 cumstances of the case present or admit, or society must be 
 broken up. Nor is it very often that adequate evidence is 
 not afforded by the attendant and surrounding facts to re- 
 move all mystery, and to afford such a reasonable degree of 
 certainty as men are daily accustomed to regard as sufBcient 
 in the most important concerns of life; to expect more would 
 be equally needless and absurd. If you have a criminal fact 
 ascertained, you may then take presumptive proof to show 
 who did it, — to fix the criminal, — having then an actual cor- 
 pus delicti; but to take presumptions in order to swell an 
 equivocal fact — a fact that is absolutely ambiguous in its own 
 nature — into a criminal fact is a mode of proceeding of a 
 very different nature, and would, I take it, be an entire mis- 
 application of the doctrine of presumptions. Under delicta 
 facti transeuntis are ranged those offenses the essence of which 
 Consists in intention, such as various forms of treason, conspir- 
 acy and criminal language, all which, being of an exclusively 
 psychological nature, must necessarily be established by pre- 
 sumptive evidence.^ It is not necessary to prove the fact by 
 direct evidence ; ^ but it is enough to prove such proximate cir- 
 cumstances as satisfy the legal conviction of the court that the 
 criminal act has been committed.^ In the cases of delicta facti 
 permanentis, the proof of the crime is separable from that of 
 the criminal. Thus, the finding of a dead body, or a house in 
 ashes, may indicate crime, but does not necessarily afford any 
 clue to the perpetrator. A distinction must be drawn rela- 
 tive to the effect of presumptive evidence. The corpus delicti 
 
 1 3 Benth. Jud. Ev. 5 ; E. v. Bur- R 1 ; Wil"liams v. Williams, 1 id. 299 ; 
 
 dette, 4 B. & A. 95, 132 ; Bonnier, Ayl. Parerg. Jur. Canon. Angl. 45. 
 
 Traite des Preuves, § 56. s Williams v. Williams, 1 Hagg. C. 
 
 ^Loveden v. Loveden, 3 Hagg. Q R. 299, 300. 
 
662 EULEa OF EVIDENCE. 
 
 is made up of two things: first, certain facts forming its basis; 
 and secondly, the existence of criminal agency as the cause of 
 them.i The fact of the death should be shown either by wit- 
 nesses who were present when the murderous act was done, 
 or by proof of the dead body, or some portion of the dead 
 body, having been found ; and where the body is in a state of 
 decomposition or is reduced to a skeleton, or is for any other 
 reason in such state as to render identification by inspection 
 impossible, it should be identified by dress or circumstances.^ 
 A given event, the origin of which is unascertained, may be 
 the result of almost innumerable causes, having their source 
 either in accidents or the agency of other persons. The dan- 
 ger of rashly inferring the guilt of a suspected person from 
 inconclusive circumstances maj' be aggravated by his own im- 
 prudence, or even by his criminal agency in other matters. 
 In witnesses the love of the marvelous and the desire to detect 
 great crimes committed in secret seem to be a mania. Whether 
 it is competent, even in extreme cases, to prove the basis of the 
 corpus delicti by presumptive evidence has been questioned. 
 The basis of corpus delicti once established, presumptive evi- 
 dence is receivable to complete the proof of it; as, for in- 
 stance, to fix the place of the commission of the offense,' and 
 even to show the presence of crime by negativing the hypoth- 
 esis that the facts proved were the result of natural causes 
 or irresponsible agency. For this purpose all the circumstances 
 of the case, and every part of the conduct of the accused, may 
 be taken into consideration.* Whatever the admissibility or 
 effect of presumptive evidence to prove the corpus delicti^ it 
 is always admissible, and it is often, especially when amount- 
 ing to evidentia rei, most powerful to disprove it. 
 
 § 25. Discovery of the body in case of murder. — The dis- 
 covery of the body necessaril}' affords the best evidence of the 
 fact of death and of the identity of the individual, and most 
 frequently also of the cause of death. A conviction for mur- 
 der is therefore never allowed to take place unless the body 
 has been found or there is equivalent proof of death by cir- 
 
 1 Matth. de Crira. ad Dig., lib. 48, ' R. v. Burdette, 4 B. & A. 95. 
 
 tit. 16, cap. 1, n. 2; Bonnier, Traite *R. v. Eldridge, R. & R. 440; R v. 
 
 des Preuves, § 56. White, id. 508. 
 
 ^R V. Clewes, 4 0. &P. 331. 
 
PEES0MPTIVE EVIDENCE. 663 
 
 cumstantial evidence leading directly to that result, and many 
 cases have shown the danger of a contrary practice. But 
 nevertheless, to require the discovery of the body in all cases 
 would be unreasonable and lead to absurdity and injustice, 
 and it is indeed frequently rendered impossible by the act of 
 the offender himself. But nevertheless it is not jiecessary that 
 the remains should be identified by direct and positive evi- 
 dence where such proof is impracticable, and especially if it 
 has been rendered so by the act of the party accused. 
 
 § 26. Cause of death.-^In the proof of criminal homicide 
 the true cause of death must be clearly established. And the 
 possibility of accounting for the event by self-inflicted violence, 
 accidental or natural cause excluded, and only when it has 
 been irrefragably proved that no other hypothesis will explain 
 all the conditions of the case, can it be safely and justly con- 
 cluded that it has been caused by intentional injury. But in 
 accordance with the principles which govern the proof of every 
 other element of the corpus delicti, it is not necessary that the 
 cause of death should be verified by direct and positive evi- 
 dence; it is suflBcient if it be proved by circumstantial evidence 
 which produces a moral conviction in the minds of the jury 
 equivalent to that which is the result of positive and direct 
 evidence. The possession of poisonous matter by the party 
 charged with the administration of it is always an important 
 fact ; and when death has been caused by poison of the same 
 kind, and no satisfactory explanation of that fact is given by 
 the accused or suggested by the surrounding circumstances, a 
 strong inference of guilt may be created against the accused ; 
 especially if he has attempted to account for such possession 
 by false statements. JSTot only must it appear that the accused 
 possessed the deadly poison, but it is indispensable to show 
 that he had the opportunity of administering it. 
 
 § 27. Infanticide.— Of the various forms of criminal homi- 
 cide, that of infanticide, by which is popularly understood 
 the murder of a recently-born infant for the purpose of con- 
 cealing its birth, perhaps presents the greatest difiiculties in 
 the establishment of the corpus delicti. In addition to the 
 sources of difiiculty and fallacy which are incidental to charges 
 of homicide in general, there are many circumstances of em- 
 barrassment peculiar to cases of this nature, among which 
 
664 EULES or evidbnce. 
 
 may be mentioned the occasional uncertainty and inconclu- 
 siveness of symptoms of pregnancy, the fundamental fact to 
 be proved, which may resemble and be mistaken for appear- 
 ances caused by obstructions or spurious gravidity. It must 
 be clearly shown that a child has been born alive and acquired 
 an independent circulation and existence; it is not enough that 
 it has breathed in the course of its birth ; but if a child has 
 been wholly born and is alive, and has acquired an independent 
 circulation, it is not material that it is still connected with its 
 mother by the umbilical cord ; nor is it essential that it should 
 have breathed at the time it was killed, as many children are 
 born alive and yet do not breathe for some time after birth.' 
 Whether a child has been born alive or not is frequently a 
 question of considerable diflSculty; and it is an admonitory 
 consideration that scientific tests which have been considered 
 as infallible with the advance of knowledge have been found 
 to be fallacious. Such is the case with respect to the hydro- 
 static test, from the indications of which in former times many 
 women have suffered the last penalty of the law. 
 
 IX. PEESUMPTION OF GUILT. 
 
 § 28. In general. — There must have existed inducements 
 to guilt, preparations for and objects and instruments of 
 crime; these, the acts of disguise, flight or concealment, the 
 possession of plunder or other fruits of crime, and innumer- 
 able other particulars connected with individual conduct and 
 with moral, social and physical relations, afford material for 
 the determination of the judgment. It would be impracticable 
 to enumerate the infinite variety of circumstantial evidentiary 
 facts, which of necessity are as various as the modifications 
 and combinations of events in actual life. All the acts of the 
 party, all things that explain or throw light on these acts, all 
 the acts of others relative to the affair that come to his knowl- 
 edge and may influence him; his friendships and enmities, his 
 promises, his threats, the truth of his discourses, the falsehood 
 of his apologies, pretenses and explanations; his looks, his 
 speech, his silence where he was called to speak, — everything 
 which tends to establish the connection between all these par- 
 
 iRex V. Brain. 6 C. & P. 350. 
 
PEBSDMPTIVE EVIDENCE. 665 
 
 ticulars, every circumstance, precedent, concomitant and sub- 
 sequent, — become parts of circumstantial evidence. Tliese are 
 in matters infinite and cannot be comprehended witiiin any 
 rule or brought under any classification. 
 
 § 29. Motive. — There must pre-exist a motive to every vol- 
 untary action of a rational being. Where the evidence of a 
 crime is circumstantial it is important to show that the pris- 
 oner had a motive with a view to establish that he is the per- 
 son who committed the act.^ Motive is a minor auxiliary fact 
 from which the main or primary fact of guilt may be inferred.^ 
 It is proved by showing the desire of gain, the gratification of 
 passion, or the preservation of reputation, accomplished or at- 
 tempted or able to be accomplished by the perpetration of the 
 crime charged. There is no motive which to the mind of an 
 honest man can be adequate to the commission of crime, and 
 just in proportion as the mind is debased and immoral, to that 
 extent the motive may be less which induces the criminal act. 
 The common inducements to crime are the desire of revenging 
 some real or fancied -wrong; of getting rid of a rival or an ob- 
 noxious connection; of escaping from a pressure or pecuniary 
 obligation or burden ; of obtaining plunder or other coveted 
 objects ; of preserving reputation, either that of general char- 
 acter or the conventional reputation of profession or sex; or 
 of gratifj'ing some other selfish or malignant passion.^ It oc- 
 casionally happens that acts of great enormity are commit- 
 ted for which no apparent motive is discoverable. A sense of 
 injury and long-cherished feelings of resentment may ulti- 
 mately induce a state of mind independent of self-restraint 
 and render their victim the sport of ungovernable impulses of 
 passion; but the distinction is evident and just between such 
 actions as are the consequences of a voluntary abdication of 
 moral control and actions committed under the overmastering 
 power of a delusion of the imagination, which, though ground- 
 less, operate upon the mind with all the force of reality and 
 necessity. 
 
 § 30. Other crimes. — While evidence merely to show pre- 
 vious bad and vicious character is inadmissible against one on 
 trial for the commission of a criminal offense, if the depraved 
 
 1 Point V. United States, 151 U. S. 2 People v. Scott, 153 N. Y. 40. 
 396. 3 Com. V. Aiello, 180 Pa. St 597. 
 
666 EULES OF EVIDENCE. 
 
 acts offered to be shown evidence or throw light upon motive 
 they become admissible.^ The rule tbat evidence in criminal 
 cases should be confined strictly to the question in issue is not 
 infringed upon because the evidence offered, while tending to 
 show some essential fact in the guilt of the accused, may also 
 prove the commission of another offense. Such evidence is 
 relevant and admissible whenever its presence goes to sustain 
 the charge by showing scienter or motive, for those facts are 
 essential elements of a crime.^ Thus, on a trial for killing an 
 officer while he was attempting to arrest defendant without a 
 warrant, evidence that defendant was guilty of a burglary on 
 the night before the homicide is competent to show the right 
 of the deceased to make the arrest, and that defendant knew 
 why the arrest was made.' Crime is never committed without 
 a motive ; and hence, on the trial of a person charged with 
 crime, it is always competent to give evidence showing the 
 motive which induced the criminal act.* "When the crime is 
 clearly proved and the criminal positively identified, it is not 
 important to prove motive. But where the case depends upon 
 circumstantial evidence, and the circumstances point to any 
 particular person as the criminal, the case is much fortified by 
 proof that he had a motive to commit the crime. When the 
 motive appears, the probabilities created by the other evidence 
 are much strengthened.^ Thus, in order to show motive, it may 
 be shown that the party had committed another crime.^ So 
 when it is proved that the defendant has committed some act, 
 and the motive with which it is done i3 material, he may tes- 
 tify in regard to his motive and may prove facts by others 
 tending to show intent.'' 
 
 1 State V. Pancoast, 5 N. D. 514 ; Peo- « People v. Dailey, 73 Hun, 16, 57 
 pie V. McLaughlin, 150 N. Y. 365; N. Y. State Rep. 10. 
 
 State V. Kavanaugh, 183 Mo. 453 ; 6 Pontius v. People, 83 N. Y. 339 ; 
 
 Wright V. State, 108 Ala. 60. Pierson v. People, 79 id. 484 ; People 
 
 2 People V. Stout, 4 Park. Cr. Rep. v. Shea, 147 id. 78; People v. Mc- 
 71 ; People v. Harris, 136 N. Y. 423, Kane, 143 id. 455 ; People v. Sharp, 
 49 N. Y. State Rep. 751. 107 id. 427 ; People v. McLaughlin, 150 
 
 3 White V. State, 70 Miss. 253. N. Y. 365. 
 
 * People V. Buchanan, 145 N. Y. 1 ; ' People v. Gardiner, 73 Hun, 66, 57 
 People V. Bedleman, 104 Cal. 608; N. Y. State Rep. 18. 
 People V. Wilson, 145 N. Y. 628; Pot- 
 ter V. United States, 155 U. S. 438. 
 
PKESUMPTIVE EVIDENCE, 667 
 
 § 31. Malice. — The law presumes malice from a killing with 
 a deadlj' weapon ; and the burden of proving matter of excuse 
 or mitigation is upon the accused, not beyond a reasonable 
 doubt, but to the satisfaction of the Jury.^ The state is not 
 bound to prove the motive as well as the intent of the defend- 
 ant.' Thus, homicide being shown and no justification or ex- 
 cuse appearing, the killing is presumed to be with malice.' 
 The setting fire to a building is evidence of an intent to injure 
 the owner, although no motive for the act be shown ;* and the 
 uttering of a forged document is conclusive of an intent to de- 
 fraud the person who would naturally be aifected by it, — an 
 inference which is not removed merely by that party swearing 
 that he believes the accused had no such intention.^ It is pro- 
 vided by statute that it is suificient, in any indictment for 
 forging, etc., an instrument, where it is necessary to allege an 
 intent to defraud, to allege that the party accused did the act 
 with intent to defraud — without alleging an intent to defraud 
 any particular person ; and the same rule applies to the trial 
 of any such offense. So where a party deliberately publishes 
 defamatory matter malice will be presumed;* the facts speak 
 for themselves. Presumptions of this kind are so conformable 
 to reason that moral conviction and legal intendment are here 
 in perfect harmony. But the safety of society, joined to the 
 difficulty of proving psychological facts,' renders imperatively 
 necessary a presumption which may seem severe, viz., that 
 which casts on the accused the onus of justifying or explaining 
 certain acts which are prima facie illegal.^ A., maliciously 
 
 1 State V. Whitson, 111 N. C. 659; R. v. Plummer, Kelyng. 109; 1 Russ. 
 State T. Crawford, 115 Mo. 630 ; Peo- Crimes (5th ed.), 641, 644 ; 1 Hale, P. 
 pie V. Wolf, 95 Mich. 625 ; Wilkins v. C. 440-443 ; 1 Foster's Crown Law, 
 State, 98 Ala. 1. 361, 390; Dyer's Cases, 1286; Whart 
 
 2 State V. Workman, 39 S. C. 123. Homicide, gg 669, 671 ; Stokes v. Peo- 
 3 1 Greenl. Ev., § 34 ; Com. v. York, pie, 53 N. Y. 164 ; State v. Knight, 43 
 
 9 Met 93; Sylvester v. State, 73 Ala. Me. 11. 
 
 201 ; State v. Potts, 100 N. C. 457 ; .■• R. v. Farrington, R. & R 207. 
 
 Gibson v. State, 89 Ala. 131 ; Marshall '= R v. Sheppard, R & R 169 ; R v. 
 
 V. State, 74 Ga. 36 ; Com. v. Hawkins, Mazagora, id. 291 ; R. v. Nash, 2 Den. 
 
 3 Gray, 463 ; Lamar v. State, 63 Miss. C. C. 493. 
 
 265 ; Hogan v. State, 61 Ga. 43 ; State « Haire v. Wilson, 9 B. & C. 643. 
 
 V. Trivas, 32 La. Ann. 1086 ; Schlenker ' P. 17 Edw. IV, 2 A., pi. 3. 
 
 V. State, 9 Brown (Neb.), 341, 348; sconner v. State,4Yerg. 137; Com. 
 
 Epperson v. State, 5 B. J, Lea (Tenn.), v. Drum, 58 Pa. St. 9 ; State v. Smith, 
 
 291,399; People v. March, 6 Cal. 543; 3 Strob. 77; Riggs v. State, 80 Miss. 
 
668 EULES OF EVIDENCE. 
 
 discharging a gun at B., kills 0. A. is guilty of murder, for 
 the malice is transferred from B. to C. ;^ and the same is true 
 where poison laid by A. for B. is accidentally taken by C.^ 
 It is on the principle that a party who accidentally kills him- 
 self in the attempt to murder another is deemed felo de se? 
 So if a man, without justification, assaults another with the 
 intention of giving him only a slight beating and death ensues, 
 he is held to be guilty of homicide.'' And if several persons 
 go out with the intention of committing a felony, and in the 
 prosecution of the general design one of them commits any 
 other felony, all are accountable for it.* 
 
 § 32. From attempt or preparations to accomplish the 
 same crime at another time. — Premeditated crime must nec- 
 essarily be preceded not only by impelling motives but by 
 appropriate preparations. Possession of the instruments or 
 means of crime, under circumstances of suspicion, as of poison, 
 coining instruments, combustible matters, picklocks, house- 
 breaking instruments, dark-lanterns, or other destructive or 
 criminal or suspicious weapons, materials or instruments, and 
 many other acts of apparent preparation, are important facts 
 in the judicial investigation of imputed crime. But the per- 
 sonal character for probity and the civil station of the party 
 are highly material in connection with facts of this kind. A 
 medical man, for instance, in the ordinary course of his pro- 
 fession, has legitimate occasion for the possession of poisons, 
 and a locksmith for the use of picklocks. 
 
 § 33. From tlireats or expressions of ill-will. — Threats or 
 expressions of ill-will on the part of the accused concerning 
 the victim are relevant on the question of his guilt.* But evi- 
 dence of such language cannot dispense with the obligation of 
 sufficient proof of the criminal facts ; for though malignant feel- 
 ings may possess the mind and lead to intemperate and crim- 
 inal expressions, they nevertheless may exercise but a transient 
 influence without leading to action. 
 
 By defendant. — Evidence of threats and acts of violence on 
 the part of the defendant against one whom he is charged with 
 
 635 ; Murpby v. People, 37 111. 447 ; 2 Plowd. 474 ; 1 East, P. C. 230. 
 
 State V. Bertrand, 3 Oreg. 61. Kingen 3 1 Hale, P. C. 413 ; 1 East, P. C. 230. 
 
 V. State, 45 Ind. 518, contra. ^ 4 Black. Com. 200. 
 
 1 1 East, P. C. 330 ; E. v. Smith, 1 5 1 Hale, P. C. 439. 
 
 Dears. C. C. 559. e Ward v. State, 30 Tex. App. 687. 
 
PEE8UMPTIVE EVIDENCE. 669 
 
 having murdered, or assaulted with intent to murder, is ad- 
 missible as tending to show malice and consequent motive for 
 the crime ;^ but evidence that a person was a man of quarrel- 
 some nature and feared in the neighborhood as a person of 
 dangerous character, and had on previous occasions threatened 
 to kill others, is inadmissible when not coupled with an offer 
 to show knowledge by the other party of the facts sought to 
 be proved.^ It must be borne in mind, also, as in regard to the 
 proof of language in general, that declarations may be obscure 1 
 in themselves or imperfectly remembered, and that witnesses 
 may speak without a strict and due regard to truth. "Words 
 are transient and fleeting as the wind; they are frequently the 
 effect of sudden transport, easily misunderstood and often mis- 
 reported. Mere threats often proceed from temporary irrita- 
 tion without deep-rooted hostility. They indicate a rash and 
 unguarded rather than a malignant character; and the very 
 utterance of them, as every one well knows, tends to defeat 
 their execution. The man who has resolved on a crime is more 
 apt to keep his purpose to himself or to confide it to an asso- 
 ciate under the seal of secrecy. Even the most wary, however, 
 sometimes let their wicked purposes peep out accidentally in 
 the freedom of companionship or the weakness of drunken 
 confidence. When such unguarded hints, dark and apparently 
 unmeaning at the time, coincide with the subsequent tokens 
 of guilt, they are strong cords in the net of criminating evi- 
 dence.' 
 
 Threats ly deceased. — While threats of a person killed, form- 
 ing no part of the res gestce, and not communicated to the ac- 
 cused, are in general inadmissible,* uncommunicated threats by 
 the deceased to kill one who afterwards, on the same day, kills 
 him in a rencounter begun by the former, are admissible in 
 evidence on the trial of the latter,' or where there is an uncer- 
 tainty as to who began the encounter.^ But, as a general rule, , 
 
 'Com. V. Holmes, 157 Mass. 233; ^Seibert v. People, 143 111. 571; 
 
 State V, Henderson, 34 Oreg. 100; State v. Walsh, 44 La. Ann. 1133. 
 State V. Bradley, 64 Vt. 466 ; Snod- » Pittman v. State, 93 Ga. 480 ; Wal- 
 
 grass V. Com., 89 Va. 639 ; Pace v. lace v. United States, 163 U. S. 466. 
 State, 89 Tex. 17. « May v. State, 33 Tex. Crim. Eep. 
 
 2 Com. V. Straesser, 153 Pa. St. 451. 74; Wilson v. State, 30 Fla. 384. 
 
 People V. Miller,' 91 Mich. 689. 
 
670 EULES OF EVIDENCE. 
 
 an overt act or hostile demonstration by the deceased against 
 the accused must be proved before the introduction in evi- 
 dence of threats on his part communicated to the accused is 
 admissible.^ 
 
 § 34. From recent possession of the fruits of crime- 
 Since the desire of dishonest gain is the impelling motive to 
 theft and robbery, it naturally follows that the possession of 
 the fruits of the crime recently after it has been committed 
 affords a strong and reasonable ground for the presumption 
 that the party in whose possession they were found was the 
 real offender, unless he can account for such possession in some 
 way consistent with his innocence.' It is manifest tliat the 
 force of this rule of presumption depends upon the recency of 
 the possession as related to the crime; and that if the interval 
 of time is considerable the presumption is much weakened, 
 and more especially if the goods are of such a nature as in the 
 ordinary course of things frequently to change hands. It is 
 obviously essential to the just application of this rule of pre- 
 sumption that the house or other place in which the stolen 
 property is found should be in the exclusive possession of the 
 prisoner.^ The force of this presumption is greatly increased 
 if the fruits of a plurality of a series of thefts be found in the 
 prisoner's possession, or if the property stolen consist of a 
 number of miscellaneous articles or be of an uncommon kind, 
 or from its value or other circumstances be inconsistent with 
 or unsuited to the station of the party. The recent posses- 
 sion of stolen property may sometimes be referable not to the 
 crime of theft, but to that of having received it with a guilty 
 knowledge of its having been stolen. The possession of stolen 
 goods recently after the loss of them may be indicative not 
 merely of the offense of larceny or of receiving with guilty 
 knowledge, but of any other more aggravated crime which has 
 been connected with theft. But the rule must be applied with 
 
 1 state V. Harris, 45 La. Ann. 43 ; v. State, 96 Ga. 353 ; Wilson v. United 
 Mealer v. State, 33 Tex. Crira. Rep. States, 163 U. S. 613 ; Good Bow v. 
 103. People, 160 111. 438. 
 
 2 Rex V. Burdette, 4 B. & Aid. 149; 3 People v. Wilson, 151 N. Y. 403; 
 Burnett on C. L. of Scotland, 555 ; 3 Cora. v. Billings, 167 Mass. 460 ; Mi- 
 Mascardus de Prob., ut supra, concl. zell v. State, 38 Fla 30; State v, Phil- 
 834; 1 Hume's Comni. C. L. of Scot- lips, 136 Mo. 117; Buchananv. State, 
 land, III ; Best on Pres. 44 ; Brooks 109 Ala. 7. 
 
PRESUMPTIVE EVIDENCE. 671 
 
 discrimination; for the bare possession of stolen property, 
 though recent, uncorroborated by other evidence, is sometimes 
 fallacious and dangerous as a criterion of guilt. 
 
 §35. Unexplained suspicious appearances.— As a general 
 rule, to which the exceptions can be but rare, it is a reasonable 
 conclusion that an innocent party can explain suspicious or un- 
 usual appearances connected with his person, dress or conduct ; 
 and that the desire of self-preservation, if not a regard for 
 truth, will prompt him to do so. The ingenious and satisfac- 
 tory explanation of circumstances of apparent suspicion always 
 operates powerfully in favor of the accused, and obtains for 
 him more ready credence than when the explanation may not 
 be easily verified. On the other hand, the force of suspicious 
 circumstances is augmented whenever the party attempts no 
 explanation of facts which he may reasonably be presumed to 
 be able and interested to explain. 
 
 § 36. From attempts to stifle investigation.— Among the 
 most forcible of presumptive indications of guilt may be men- 
 tioned all attempts to pollute or disturb the current of truth 
 and justice, or to prevent a fair and impartial trial by endeav- 
 ors to intimidate, suborn, bribe or otherwise tamper with the 
 prosecutor, or the witnesses, or the officers or ministers of 
 justice; the concealment, suppression, destruction or altera- 
 tion of any article of real evidence, — any of which acts, clearly 
 brought home to the prisoner or his agents, are of the most 
 prejudicial effect, as denoting on his part a consciousness of 
 guilt and a desire to evade the pressure of facts tending to 
 establish it. 
 
 § 37. Concealment, disguise, flight, etc.— In the most de- 
 based persons there is an involuntary tendency to flight, ex- 
 cept when the mind is on its guard and studiously bent upon 
 concealment; and this law of our nature sometimes gives rise 
 to minute and unpremeditated acts of great weight. To- this 
 head may be referred the acts of concealment, flight and other 
 indications of mental emotion usually found in connection with 
 guilt.i By the common law flight was considered so strong a 
 presumption of guilt that in cases of treason and felony it car- 
 
 1 Com. V. MoMahon, 145 Pa. St. 413 ; v. Bell, 166 Pa. St 405 ; State v. Har- 
 
 Alberty v. United States, 163 U. S. rison, 66 Vt. 533 ; State v. Bradneck, 
 
 499 ; People v. Fredericks, 106 Cal. 554 ; 69 Coun. 313. 
 Keynolda V. State, 34 Fla. 175; Com. 
 
672 EULES OF EVIDENCE. 
 
 ried the forfeiture of the party's goods, whether he were found 
 guilty or acquitted.^ These acts, in all their modifications, are 
 indications of fear; but it would be harsh and unreasonable in- 
 variably to interpret them as indications of guilty conscious- 
 ness, and greater weight has sometimes been attached to them 
 than they have warranted. Doubtless the manly carriage of 
 integrity always commands the respect of mankind, and all 
 tribunals do homage to the great principles from which con- 
 sistency springs; but it does not follow, because the moral 
 courage and consistency which generally accompany the con- 
 sciousness of uprightness raise a presumption of innocence that 
 the converse is always true. Men are differently constituted 
 as respects both animal and moral courage, and fear may spring 
 from causes very different? from that of conscious guilt ; and 
 every man is therefore entitled to a candid construction of his 
 words and actions, particularly if placed in circumstances of 
 great and unexpected difficulty. Such are the various tem- 
 peraments of men, and so rare the occurrence of the sudden 
 arrest of a person upon the charge of a crime, that who of us 
 can say how an innocent or guilty man ought or would be likely 
 to act in such a case, or that he was too much or too little 
 moved for an innocent man? 
 
 § 38. From silence of accused when charged with crime. 
 A refusal on the part of a witness to answer questions on the 
 ground that it might tend to criminate him cannot be con- 
 sidered as evidence against the defendant in a criminal case.^ 
 And an inference that the defendant admitted the truth of 
 matters stated by the witness in a coroner's- inquest cannot 
 be drawn from his silence on such inquest.' 
 
 §39. Spoliation of evidence.— It is a maxim of law that 
 omnia prmsumuntur contra spoliatorem, and the suppression or 
 destruction of pertinent evidence is always therefore deemed 
 a prejudicial circumstance of great weight ; for, as no action 
 of a rational being is performed without a motive, it naturally 
 leads to the inference that such evidence, if it were produced, 
 would operate unfavorably to the party in whose power it is 
 to produce it, and who withholds it or has wilfully deprived 
 
 1 Co. Litt. 375. 415 ; Beach v. United States, 14 Saw. 
 
 2Barnett v. Glutting, 3 Ind. App. 549. 
 
 estate V. MuUias, 101 Mo. 51 
 
PEESUMPTIVB EVIDENCE. (373 
 
 himself of the power of producing it.' Other facts of the same 
 kind are the common cases of the obliteration, effacing or 
 otherwise removing marks of ownership or identity from plate 
 or linen, or other articles of property, or of stains of blood or 
 other matter from the person or dress' of the accused, or the 
 suggestion or insinuation of false, groundless or deceptive hy- 
 potheses or explanations, in order to neutralize or account for 
 adverse acts or appearances.^ 
 
 § 40. Affectation of grief and fabrication of evidence.— The 
 ofiBcious affectation of grief and concern as an artifice to pre- 
 vent or avert suspicion, false representations as to the state of 
 a party's health, or the utterance of obscure or mysterious 
 predictions or allusions, the pretense of supernatural dreams, 
 noises or other omens or intimations calculated to prepare 
 the connections for the event of sudden death, and to dimin- 
 ish surprise and alarm which naturally follows such an event, 
 the fabrication of simulated facts and appearances calculated 
 to create alarm or otherwise to give a delusive tendency and 
 interpretation to inculpatory facts, are artifices frequently 
 resorted to for the avoidance, neutralization or explanation of 
 circumstances naturally presumptive of guilt;' the resort to 
 which is of the most prejudicial criminative tendency, inas- 
 much as it necessarily implies an admission of their tputh and 
 a consciousness of the inculpatory effect, if uncontradicted or 
 unexplained, of the facts which it thus seeks to divest of their 
 natural significance. 
 
 § 41. Proof of identity of the person or thing. — In the in- 
 vestigation of every alleged crime it is fundamentally requi- 
 site to establish by direct or circumstantial evidence the 
 identity of the individual accused as the party who committed 
 the imputed offense. It might be concluded by persons not 
 conversant with judicial proceedings that identification is sel- 
 dom attended with serious difficulty, but such is not the case. 
 Illustrations are numerous to show that what are supposed to 
 be the clearest intimations of the senses are sometimes falla- 
 cious and deceptive, and some extraordinary cases have oc- 
 
 1 1 Starkie, Ev. 487 ; Southern P. R. 3 Wilson v. United States, 163 U. S. 
 Co. V, Johnson, 44 U. S. App. 1 ; Mar- 613; Lonegan v. Buford, 148 id. 581 ; 
 den V. Dorthy, 13 App. Div. 188. Coo v. Hart, 145 id. 376. 
 
 2 Wilson V. United States, 163 U. S. 
 •613. 
 
 43 
 
67i EULES OF EVIDENCK. 
 
 curred of mistaken identity. Hence the particularity, and, as 
 unreflecting persons too hastily conclude, the frivolous minute- 
 ness, of inquiry by professional advocates as to the causa 
 scientim in cases of controverted identity, whether of persons 
 or things. Identification is often satisfactorily inferred from 
 the correspondence of fragments of garments, or of written 
 or printed papers, or of other articles belonging to or found 
 in the possession of parties charged with crime, with other por- 
 tions or fragments discovered at or near the scene of the crime 
 or otherwise related to the corpus delicti,'^ or by means of 
 wounds or marks inflicted upon the person of the offender. 
 The impressions of shoes or shoe-nails, or of other articles 
 of apparel, or of patches, abrasions or of other peculiarities 
 therein, discovered in the soil or clay or snow at or near the 
 scene of a crime recently after its commission, frequently lead 
 to the identification and conviction of the guilty parties. The 
 presumption founded on these circumstances has been ap- 
 pealed to by mankind in all ages and in inquiries of every 
 kind, and is so obviously the dictate of reason, if not of in- 
 stinct, that it would be superfluous to dwell upon its impor- 
 tance. To guard against error it is manifest that the recency 
 of the discovery and comparison of the impressions relatively 
 to the time of the occurrence of corpus delicti and before other 
 persons may have resorted to the spot is of the highest impor- 
 tance. So the accuracy of the comparison is obviously all-im- 
 portant, and therefore, as a further means of guarding against 
 mistake, it must be shown that the shoes were compared 
 with the foot marks before they were put on them ; ^ and where 
 the comparison had not been previously made, Mr. Justice 
 Park directed the jury to reject the whole inquiry relating to 
 the identification by the shoe marks.' JS'or must it be over- 
 looked that, even where the identity of foot marks has been 
 established beyond all doubt, they may have been fabricated 
 with the intention of diverting suspicion from the real offender 
 and fixing it upon an innocent party, and that in other re- 
 spects this kind of evidence may lead to erroneous interpreta- 
 tion and inference.* In People v. Strong ' and People v. Will- 
 
 1 See Mascardus, ut supra, concl. ' Rex v. Shaw, 1 Lewin's C. C. 116. 
 831; State V. David, 131 Mo. 380. « Crawford v. State, 113 Ala. 1; 
 
 2 Reg. V. Heaton, 1 Lewin's C. C. State v. Jones, 89 Iowa, 183. 
 116. 6 3Park. Or. Rep. 20& 
 
PEESUMPTIVE EVIDENCE. 675 
 
 iams' it was held error to allow a witness to state his impres- 
 sions as to the identity of a man. The usual course is not to 
 allow a witness in the first instance, as evidence in chief, to 
 state impressions or thoughts in respect to the identity of in- 
 dividuals. 
 
 X. PEESUMPTION AGAINST OEIME. 
 
 The law of England recognizes several presumptions juris 
 et dejure which create entire or partial exemption from crim- 
 inal responsibility; as, that infants under the age of seven 
 years cannot be guilty of crime ; that infants above that age 
 and under fourteen years shaXl he prima facie adjudged t?oZ* 
 inoapax; and that, as to certain offenses connected with phys- 
 ical development, minors under the age of fourteen years shall 
 be conclusively presumed to be incapable of committing them, 
 and that no evidence shall be admitted to the contrary.^ Such 
 also is the presumption that offenses committed by the wife in 
 the presence of her husband shall, with certain exceptions, be 
 considered to have been committed by his coercion.^ A woman 
 who commits felony in company with her husband is excused 
 on the presumption (which, however, may be rebutted) of hav- 
 ing acted under his coercion.* This rule is said not to extend 
 to crimes which are mala in se and prohibited by the law of 
 nature; nor to such as are heinous in their character or dan- 
 gerous in their consequences.^ So that murder and treason 
 are clearly excluded from its operation.* But it is hard to say 
 what thjs curious exception means; and a married woman has 
 been acquitted on charge of robbery with violence in which 
 she had herself taken a very active part.' E"or is there any 
 general distinction between felony and misdemeanor in this 
 respect.' In this case the wife was tried alone, her husband 
 having escaped. 
 
 1 29 Hun, 520. 6 id., citing R. v. Manning, 2 C. & 
 
 2 1 Hale's P. G, ch. 3 ; 4 Bl. Com. 3. K. 903, n. 
 
 3 Ibid. ; Gordon v. State, 93 Ga 531. ' Reg. v. Torpey, 13 Cox, 45. 
 
 *Reg. V. Torpey, 13Cox, 45. 8 Id. 
 
 5 Arch. Crim. Plead. (30th ed.) 26. 
 
CHAPTEK XIX. 
 
 DAMAGES — PRACTICE AS TO PROOF OF. 
 
 I. MANNEE OP PROVING VALUE IN 
 ACTIONS FOE PEOPEETY OR SEEV- 
 ICES. 
 
 § 1. In general. 
 
 2. Presumption of damage. 
 
 3. Expert evidence of value. 
 
 4. What witnesses allowed to give 
 
 opinions as to value. 
 
 5. Illustrations. 
 
 6. Offers made for property. 
 
 7. Price paid — Sales. 
 
 8. By sales or value of other prop- 
 
 erty. 
 
 9. Sum inserted in deed no evi- 
 
 dence of value. 
 10. Where there is no market value. 
 
 § 11. Work, labor and services. 
 
 12. Opinion as to value of services. 
 
 13. Proof of value in actions on 
 
 special contract. 
 
 14. Benefit to premises. 
 
 IL PEOUNIAHT CONDITION OF PARTY. 
 
 15. In general. 
 
 16. Breach of promise of mar- 
 
 riage — Reputation of de- 
 fendant's wealth. 
 
 in. LIBEL — EEPETITION OF. 
 
 17. In general. 
 
 18. Repetition of libel after action 
 
 commenced. 
 
 I. MANNEB OF PEOVING VALUE IN ACTIONS FOE PEOPEETY OE 
 
 SEETICES. 
 
 § 1. In general. — In an action for damages it is the prov- 
 ince of the jury to determine, upon the facts which are spread 
 before them in evidence, whether the plaintiff has suffered and 
 the amount of the proper compensation therefor. The rule 
 has been long settled that, in an action for damages, witnesses 
 are to state the facts, and are not permitted to determine an}^- 
 thing. Their testimony must be confined to stating facts. If 
 the loss is alleged to be a pecuniary one, and there is no evi- 
 dence tending to show its extent, the juiy should only be 
 allowed to give nominal damages ; but if there are any facts 
 upon which an estimate might be made as to the amount of 
 damage, they are the sole arbiters and must assess it. In cases 
 where it may not be possible to reach by computation the exact 
 figures of a right indemnity, the jury, when the facts of the 
 case are laid before them, may fix the amount of the damages.^ 
 
 iFish V. Dodge, 4 Denio, 311; 31, 30 N. Y. State Rep. 471; Jackson v. 
 Marcly v. Shult, 29 N. Y. 346 ; Avery Kent, 43 Neb. 413 ; Cothran v. Knight, 
 V. N. Y. C. & H. R. R. Co., 131 N. Y. 45 S. 0. 1. 
 
DAMAGES ^ PEAOTIOE AS TO PEOOF OF. GT7 
 
 § 2. Presumption of damage.— An injury to reputation and 
 feelings, constituting actual damage, is presumed from proof 
 of publication of an article libelous per se and of ttie falsity of 
 the statements, although no special damage is shown.^ So no 
 evidence of pecuniary loss by the deprivation of the services 
 of a wife is essential to recovery for loss of such services by 
 personal injury to her.^ Since damages are implied from every 
 wrong, proof of an actual assault entitles a party to compen- 
 satory damages, without evidence of the amount of damages 
 sustained.' 
 
 § 3. Expert evidence of value.— An ordinary witness who 
 is acquainted with personal property and its market value may 
 testify as to its value; but such witness cannot state his opin- 
 ion as to the value of articles described to him by another 
 person, when such description is not stated to the jury. A 
 book-keeper of a person having charge of books attached may 
 give an estimate of the value of the book accounts attached.* 
 So an expert may state the net value of an insurance policy 
 forfeited for non-payment of premiums ;* the value of a museum 
 destroyed by fire;^ the value of colts bred by certain stock 
 horses.'' Damages cannot be proved by asking a witness how 
 much a thing is or was damaged;^ or how much a person was 
 damaged in his credit by a wrongful act ; ' or how much in- 
 jury or damage one person caused another by his refusal to 
 complete a contract. '° In an action for damages to abutting 
 property from the presence of an elevated railroad in a street, 
 
 1 Smith V. Sun P. & P. Ass'n, 55 '' Parker v. Lake Shore & M. S. R. 
 Fed. Rep. 340 ; Alliger v. Mail P. Co., 93 Mich. 607. 
 
 Ass'n, 49 N. Y. State Rep. 495, 66 sUpcher v. Oberlancler, 50Kan. 315. 
 
 Hud, 626. 9 Heffron v. Brown, 155 111. 323 ; 
 
 2 Kelley v. Mayberry, 154 Pa. St. 440. Donovan v. Chicago & N. W. R Co., 
 
 3 Rose V. Louisville, N. O. & T. R. 93 Wis. 373. 
 
 Co., 70 Miss. 90 ; Bartley v. Trorlicht, i" Manning v, Maas, 50 N. Y. State 
 
 49 Mo. App. 314 ; St. Louis, L M. & S. Rep. 759 ; Devlin v. New York, 53 id. 
 
 R Co. V. Edvirards, 49 U. S. App. 53. 455; Boston & A. R. Co. v. O'Reilly, 
 
 < Freusch v. Ottenburg, 54 Fed. Rep. 158 U. S. 334 ; Alabama & V. R. Co. 
 
 867; Richter v. Harper, 95 Mich. 331 ; v. Searles, 71 Miss. 744; Metzger v. 
 
 Robinson v. P. P. & W. Co., 1 Okla. 30. Manchester F. Assur. Co., 103 Mich. 
 
 ^ Price V. Connecticut Mut. L. Co., 334; Jameson v. Kent, 43 Neb. 413; 
 
 48 Mo. App. 381 ; Nelson v. First Nat. Fort Worth & D. C. R Co. v. Word, 
 
 Bank, 33 U. S. App. 554. 3 Tex. Civ. App. 598. But see In- 
 
 6 Richter v. Harper. 95 Mich. 321 ; man v. Potter, 18 R. L 79; Gerber v. 
 
 Campbell v. New York, 81 Fed. Rep. Metropolitan El. R. Co., 53 N. Y. State 
 
 182; American Oak Ex. Co. v. Ryan, Rep. 444; Seattle & M. R. Co. v. Gil- 
 
 112 Ala. 337. christ, 4 Wash. 509. 
 
678 EULES OF EVIDENCE. 
 
 testimony of experts as to the value of plaintiff's property be- 
 fore the road was built and its present value is competent ; but 
 the amount of damage sustained by the plaintiff, or the possi- 
 ble value of property if the railroad was not there, is not the 
 subject of expert opinion.^ But an exception to the giving of 
 an opinion as to the amount of injury to abutting property by 
 reason of the construction and operation of an elevated rail- 
 road in the street, on the redirect examination of a witness, is 
 not tenable, where such an opinion is only an amplification of 
 one called out on the cross-examination of such witness.^ A 
 passenger suing for damages for delay in delivering her trunk 
 and its contents, whereby she was deprived of the use of her 
 clothing for about a month, may state the value of the use of 
 her property during the delay, since, there being no market 
 value of such property, the opinions of witnesses familiar with 
 the facts are admissible.' And farmers who know the value 
 of a shepherd dog, which is chiefl}^ valuable for his ability to 
 herd cattle and horses, can give their opinions as to the value, 
 without showing that the dog had a marketable value on ac- 
 count of his breed or peculiar qualities.* 
 
 § 4. What witnesses allowed to give opinions as to value. 
 The opinion of an expert who has a practical knowledge of 
 the neighborhood and its surroundings, founded on actual ex- 
 perience and observation, as to how the fee and rental values 
 on an avenue compare with the values before the building of 
 a railroad thereon, and how similiar values compared in speci- 
 fied neighboring side-streets, is competent. In Becker v. Met- 
 ropolitan El. K. Co.^ the court say: "There was no intention 
 to hold evidence of value on the side-streets to be inadmis- 
 sible, or to deprive the court of the right to draw the inference 
 from it, together with other evidence in the case, that the 
 property of plaintiff had been damaged by being deprived of 
 a greater increase in value by reason of the building of such 
 a structure."^ It is improper to allow a real-estate agent, 
 
 1 Sixth Ave. R. Co. v. Metropolitan s Gujf, c. & S. F. R Co. v. Vanoil, 
 El. Co., 138 N. Y. 548, 53 N. Y. State 2 Tex. Civ. App. 427 ; Missouri, K. & 
 Rep. 181 ; Frolic v. Morse, 15 Wash. T. R. Co. v. Lycan, 57 Kan. 635. 
 
 636 ; Union El. Co. v. Kansas City S. * Bowers v. Horan, 93 Mich. 420. 
 B. R. Co., 185 Mo. 353. 5 131 n. y. 511, 48 N. Y. State Rep. 
 
 2 BischofE V. New York El. Co., 52 726. 
 
 N. Y. State Rep. 373, 138 N. Y. 257; CQerber v. Metropolitan EI. R Co. 
 Cook V. New York El. R. Co., 144 N. Y. et al., 53 N. Y. State Rep. 444 ; Metro- 
 115. politau West Side El. R Co. v. White, 
 
DAMAGES — PEACTICE AS TO PROOF OF. 679 
 
 called as an expert, in an action for injuries to premises by- 
 loss of light, air, etc., by reason of the erection and operation 
 of a structure and business near it, to state to what extent in 
 his judgment the value of the property was damaged, if at all, 
 by the presence of the structure. It is also improper to allow 
 him to state what he estimated the rental value of the prop- 
 erty to be, " the structure not being there." ^ So it is improper 
 to allow an expert to testify what in his judgment the prop- 
 erty would be worth without the structure where it is ; ^ and 
 it is also improper to allow an expert to testify as to the value 
 of the lots, if there were no interference with the light, air 
 and access.' But in an action against an elevated railroad for 
 injuries to adjoining property, evidence that the value of the 
 land on the street in question has not increased in the same 
 proportion as land on the side-streets is admissible, and may 
 be considered upon the question of fact whether the land of 
 the owner has increased in value to the same extent that it 
 would have done but for the presence of the road.* And while 
 it seems that a witness is incompetent to testify as to what 
 would be the value of the property if certain things did not 
 exist, in order to make such witness incompetent to so testify 
 it must be specifically objected that the opinion of the witness 
 is inadmissible on the subject. Such evidence should not be 
 excluded on the ground that it is immaterial or incompetent 
 or that the question is hypothetical. The proper objection 
 would be that the question calls for what the judge is to de- 
 termine on the other testimony.' 
 
 § 5. Illustrations. — (1) Value is a matter of opinion, to be 
 proved by persons acquainted therewith.^ Thus, the opinion 
 of a person properly informed as to the value of other articles 
 of the same kind is admissible as to the value of an article 
 which has no market value.'' After a witness has testified that 
 
 166 111. 373 ; Union El. Co. v. Kansas * Becker v. Metropolitan R. Co., 131 
 
 City S. B. R Co., 135 Mo. 353. N. Y. 509, 43 N. Y. State Rep. 726. 
 
 iRoberts v. New York El. R. Co., » Roosevelt v. New York El. R. Co., 
 
 128 N. Y. 455, 40 N. Y. State Rep. 454. 57 N. Y. Super. Ct. 438, 29 N. Y. State 
 
 ,2 Doyle V. Manhattan R. Co., 128 Rep. 266 ; McGean v. Manhattan Ry. 
 
 N, Y. 488 ; Metropolitan West Side El. Co., 117 N. Y. 219. 
 
 R Co. T. White, 1*66 111. 978. " Missouri F. C. Works v. Ellison, 30 
 
 3 Gray v. Manhattan R Co., 138 Mo. App. 67; Louisville Jeans C. Co. 
 
 N. Y. 499. V. Lischkoff, 109 Ala. 136. 
 
 7 Sullivan v. Lear, 23 Fla. 463. 
 
680 EULES OF EVIDENCE. 
 
 he knows the property and its value, he may be called upon to 
 state such value.^ But the opinion of a witness as to the mar- 
 ket value of ice cut and stored for sale is inadmissible on the 
 question of the value of the ice not cut, which has no market 
 value.^ 
 
 (2) A person who has kept the expense account of the fam- 
 ily for several years is competent to give an opinion as to the 
 expense of the family at that time.^ 
 
 (3) A witness may state that he had never seen a machine 
 which did not do better work.* 
 
 (4) Testimony as to the value of property, where neither ques- 
 tion nor answer confines it to any particular place, is improper.'^ 
 
 (6) Before a witness can testify to the value of services it 
 must appear that he knew the usual rate paid for like services 
 at the time and place.^ Thus, an attorney is competent to tes- 
 tify to the value of his own services ; ' carpenters may testify 
 as to the value of the services £>f boys employed in aid of car- 
 penter's work;^ physicians' services may be proved by other 
 physicians;' and the value of logs by a workman in a saw- 
 miil.i" 
 
 (6) A witness may give his opinion of the value of a fran- 
 chise to build a wharf, based upon his own experience under 
 a similar franchise ;^^ and an insured may give an opinion of 
 the loss to insured property, where he has actual knowledge 
 of the cost and value of the insured property.'^ 
 
 (7) One whose business is such that he is familiar with the 
 market value of an article which is the common subject of 
 sale is a competent witness to testify a,s to its value, although 
 he has no personal knowledge of any particular sale. 
 
 (8) In an action for killing stock, it is competent for plaint- 
 iff to testify that the animal killed was a very fine colt, fine 
 
 1 Montana R. Co. v. Warren, 137 ' Chamberlain v. Rogers, 79 Midi. 
 U. S. 348; Moore v. Chicago, M. & 219. 
 
 St. Paul E. Co., 78 Wis. 180; Butler ^Kelley v.JRowane, 33 Mo. App.440. 
 
 V. Howell, 18 Colo. 133. 9 Atchison v. Rose, 43 Kan. 605 ; 
 
 2 Van Rensselaer v. Mould, 48 Hun, Thomas v. Coulkett, 57 Mich. 392. 
 396, 16 N. Y.. State Rep. 465. lO Skeels v. Starrett, 57 Mich. 350. 
 
 3 Hudson V. Houser, 133 Ind. 309. n Sullivan v: Lear, 33 Fla. 468, 11 Am. 
 * Davis V. Sweeuei', 80 Iowa, 391. St. Rep. 388 ; Nelson v. First Nat. 
 5 United States v. Baxter, 46 Fed. Bank, 33 XJ. S. App. 554 ; Houston & 
 
 Rep.350;Grahamv.Frazier,40Neb.90. W. T. R Co. v. Stern, 41 id. 309. 
 
 « Louisville, N. A. etc. R Co. v. Cox, 12 Whiting v. Mississippi V. Mut. Ins, 
 30 111. App. 380. Co., 76 Wis. 593. 
 
DAMAGES — PEACTICE AS TO PEOOF OF. 681 
 
 stock, trotting stock, and that his sire and dam were fine- 
 blooded animals.^ And where the action is for injury to a 
 horse, opinion of a witness as to her speed, and her value as- 
 suming that she possessed the speed proved, is admissible.^ 
 
 (9) In some states^ where the amount of damages sustained 
 is matter of opinion, and it is difficult to give the jury an ade- 
 quate idea of the thing injured, the witnesses may express their 
 opinion as to the extent of the damage.^ Eut it cannot be es- 
 tablished by the statement of a witness, in a lump sum, of the 
 amount of damages he thinks were sustained, without giving 
 any facts or knowledge upon which his opinion is based;* nor 
 can a witness give his opinion of the value of the plaintiff's 
 services to witness.' 
 
 (10) The evidence of a grocer, a hardware man, and a dry- 
 goods dealer, as to the value of a general stock of goods, is 
 not limited to the articles in which each usually deals.^ 
 
 (11) A merchant in the same line of business may testify as 
 to the value of a stock of goods as learned from casual ob- 
 servation ; ' but a person is incompetent to testify to the value 
 of jewelry, although bought by her, in the absence of proof that 
 she is qualified to speak as an expert.' 
 
 (12) In an action by a land-owner to compel a company 
 operating an elevated railroad in the street in front of his 
 property to pay the damage done him by cutting off the ease- 
 ment of light, air and access connected with such property, 
 an expert witness cannot be permitted to state what, in hi& 
 opinion, the amount of such damage is, nor what would have 
 been the present value of the land if the road had not been 
 built.' But an expert may give his opinion as to the rental 
 value of the property with the free use of all above the surface 
 
 1 East Tennessee, V. & G. R. Co. v. '> Carberry v. Morrell, 68 Wis. 573. 
 Watson, 94 Ala 634. ' Graves v. Merchants' & B. Ins. C©.,. 
 
 2 Reed v. Rome, Watertown & O. 82 Iowa, 637 ; Findlay v. Pertz, 43 U. 
 R Co., 48 Hun, 231, 125 N. Y. 708, 16 S. App. 388. 
 
 N. Y. State Rep. 58 ; Levy v. Scott, s Gregory v. Fichtner, 38 N. Y. State 
 
 115 Cal. 39. Rep, 192, 43 Alb. L. J. 517, 37 Abb. N. 
 
 3 Chicago, B. &j^^. R. Co. v. Scoffer, C. 86 : Flaherty v. Powers, 167 Mass. 
 124 111. 112; Kuapp & 8. Co. v. Bar- 61 ;(Martinet v. Maczkewez, 59 N. J. 
 nard, 78 Iowa, 347 : Nevada & M. R. L. 11. 
 
 Co. V. De Lissa, 103 Mo. 125. 9 Suydam v. New York Elev. R. Co., 
 
 * Sherman Center Town v. Leonard, 46 N. V. State Rep. 860 : Sillcocks v. 
 46 Kan. 354. New York Elev. R. Co., id. 671 ; Rob- 
 
 * Williams v. Williams, 83 Mich. 449. arts v. New York Elev. R. Co., 40 id. 
 
683 EULES OF EVIDENCE. 
 
 of the street for light, air and access to and from the building.' 
 He may also give an opinion upon the present or past value 
 of property, based upon facts which he has observed, and on 
 other matters which are the proper subject of expert evidence, 
 and based upon facts known to him or proved by competent 
 evidence, but cannot speculate upon the facts and then base a 
 speculative opinion thereon.^ 
 
 (13) The opinion of a witness who has stated the facts on 
 which he bases it is competent on the question of value of the 
 use of land and certain privileges for purposes for which no 
 market value exists.' 
 
 (14:) In actions for damages witnesses should be confined to 
 stating facts, and should not be permitted to testify as to the 
 amount of damages.* Thus, in an action for damages for 
 personal injuries, the plaintiff should not be allowed to state 
 his opinion as to the amount of damages;' and in an action 
 on a fire policy, testimony of a witness as to the amount of 
 loss and damage sustained by plaintiff by reason of the fire is 
 incompetent as being the result of calculation upon such facts 
 as the witness may choose to consider proper.^ So the opin- 
 ions of witnesses as to the quantum of damage caused by the 
 breach of an executory contract to deliver goods are inadmis- 
 sible.'' Expert evidence is inadmissible for the purpose of set- 
 tling the value of the earning-power of a given person;^ and 
 the reasonableness of a charge for storage of railroad ties on 
 unoccupied land at a country railroad station is'not a subject 
 for expert testimonj'." It has been said that the opinion of an 
 
 454, 128 N. Y. 455, 44 Alb. L. J. 454 ; « Avery v. New York Central & 
 
 Gray v. Manhattan R. Co., 128 N. Y. Hudson River R. Co., 121 N. Y. 31, 30 
 
 499, 40 N. Y. State Rep. 478 ; Jeflferson N. Y. State Rep. 471. 
 
 V. New York El. R. Co., 44 id. 629, 132 & Pierce v. Lutesville, 35 Mo. App. 
 
 N. Y. 483 ; Metropolitan West Side El. 317 ; Smith v. Young, 26 id. 576 ; Ken- 
 
 K Co. v. White, 166 111. 375. nedy v. HoUaday, 25 id. 503. 
 
 1 Ottinger v. New York El. R. Co., 63 egchlessinger v. Springfield F. & M. 
 
 Hun, 631. 43 N.Y. State Rep. 817; Hine Ins. Co., 58 N. Y. Supr. Ct, 172, 31 
 
 v. New York El. R. Co., 149 N. Y. 154. N. Y. State Rep. 169. 
 
 2Doylev. Manhattan R. Co., 40 N.Y, 7 Young v. Cureton, 87 Ala. 727; 
 
 State Rep. 474, 128 N. Y. 488; Metro- Spencer v. Kilmer, 151 N. Y. 390. 
 
 politan S. Elev. R. Co. v. White,, 166 SGoodhart v. Pa. R. Co., 177 Pa. 
 
 111. 375. St. 1 ; Lant v. Rasines, 74 N. Y. State 
 
 3 Gulf, C. & S. F. R Co. V. Dunman, Rep. 855. 
 
 85 Tex. 177. But see Pratt v. N. Y. C. » Lansburgh v. Winsatt, 7 App. Dist. 
 
 & H. R R. Co., 59 N. Y. State Rep. 38, of Columbia, 271. 
 77 Hun, 139. 
 
DAMAGES PKACTICE AS TO PEOOF OF. 683 
 
 expert as to the value of adjoining land is inadmissible to show 
 value of propert}', but evidence as to other land is limited to 
 actual sales.i But the opinion of such expert as to the diminu- 
 tion of the value of all one's property on a certain street is not 
 a conclusion. Proof as to the value of shade trees is not ad- 
 missible on the question of damages for their destruction, as 
 the damages are measured by the depreciation of the value of 
 the land.^ So evidence of the amount for which certain prop- 
 erty rented before and after the construction of an elevated 
 railway in the street in front thereof is inadmissible on the 
 question of damages in an action to enjoin the operation of 
 such railway in front of other premises in the city.' But evi- 
 dence that plaintiff was obliged to reduce rents after the con- 
 struction of the road in order to retain his tenants is admissi- 
 ble.* Diminished values in abutting property by operation of 
 such road cannot be established by calling the owners of prop- 
 erty in the vicinity and proving for what the particular prem- 
 ises of each witness rented before and after the construction 
 of the road.^ The cost of bringing the remainder of the lot 
 up to the grade of the road is admissible upon the assessment 
 of damages to a track from taking a portion thereof for a 
 pubhc street, in order to determine the difference between the 
 value of the property before and after the taking.^ 
 
 (15) Upon the question of the value of real estate, the opin- 
 ion of a witness who has seen the property and is acquainted 
 with the value of similar land is competent evidence. It is in- 
 competent for a witness in a proceeding for damages for prop- 
 erty taken under the right of eminent domain to testify to the 
 value of a part only of the property and the consequent dam- 
 ages sustained by that part alone.'' 
 
 (16) An opinion may be given as to the value of a building 
 based upon the uses to which it could be adapted.' 
 
 ^Beale V. Boston, 166 Mass. 53. 5 Jamieson v. Kings County L. R. 
 
 2 Evans v. Keystone Gas Co., 148 Co., 147 N. Y. 332. 
 
 N. Y. 113, 30 L. R A. 651. e Patton v. Philadelphia, 175 Pa. St 
 
 ' Whitmark v. New York El. R. Co., 88. 
 
 149N.Y. 493; Lazarus V. Metropolitan 7 Schuylkill River & S. R. Co. v. 
 
 El. R. Co., 5 App. Div. 398, 69 Hun, Stoker, 138 Pa, St. 333. 
 
 190, 53 N. Y. State Rep. 31. s Kernoolian v. New York Elevated 
 
 * Hine v. New York El. R. Co., 149 R. Co., 138 N. Y. 559, 36 N. Y. State 
 
 N. Y. 154. Rep. 434. 
 
684 EULES OF EVIDENCE. 
 
 (17) To give an opinion as to the value of land, a witness 
 need not have been engaged in buying and selling; it is suffi- 
 cient that witness knows the property and its value ;^ and a 
 witness whose business calls his attention to sales and values 
 in the vicinity may state his estimate of values and rentals of 
 real estate.^ So practical farmers are qualified to give an 
 opinion on the question as to what extent the rental of a farm 
 |eft unfenced will be affected.' 
 
 (18) A practical builder may state what it was worth to 
 build a church.* Opinions of experts upon the possible and 
 probable uses of a lot before the taking thereof for a railroad 
 right of way are admissible as to its value.^ 
 
 (19) In condemnation proceedings it is error to allow the 
 question to be put and answered, "How much less was the 
 farm worth per acre, immediately after the railroad went 
 through than it was before?"^ So, "What, in your opinion, 
 is the depi'eciation in value of the property by reason of the 
 operation of the railroad, excluding from consideration all 
 damages sustained in common with the community at large?" 
 The witness must state the value of the property before the 
 road was built and its value afterwards.' 
 
 (20) An experienced miller may state as to the value of a 
 lease of mill property beyond the rent reserved ' So a board- 
 ing-house keeper may state as to the worth of board.' So one 
 who has bought and sold furniture at second-hand sales may 
 
 1 Chicago, P. & St L. R. Co. v. Nix, 3 Finch v. Chicago, M. & St Paul 
 137 111. 141. R. Co., 46 Minn. SoO. 
 
 2 Johnston v. Manhattan R Co., 60 * O'Keefe v. St Frances Church, 59 
 Hun, 583, 39 N. Y. State Rep. 227; Conn. 551. 
 
 Spring City Gaslight Co. v. Pennsyl- ' Harris v. Schuylkill River & S. 
 
 vania S. V. R Co., 167 Pa. St 6 ; R. Co., 141 Pa. St 242. 
 
 Greenfield F. Nat Bank v. Coffin, 163 6 Chicago, K. & W. R. Co. v. Mul- 
 
 Mass. 180; Boteler v. Philadelphia & ler, 45 Kan. 85. 
 
 R. T. Co.. 164 Pa. St 397; Bergen 'Gainesville; H. & W. R. Co. v. 
 
 Neck R. Co. v. Point Breeze F. & J. Hall, 78 Tex. 160; Cook v. New York 
 
 Co., 57 N. J. L. 163; Amory v. Mel- Elevated R. Co., 144 N. Y. 115. 
 
 rose, 162 Mass. 556 ; Pike v. Chicago, 8 Chamberlain v. Dunlop, 54 Hun, 
 
 155 111. 654; Edsall v. Howell, 86 Hun, 639, 126N. Y. 4.5, 28 N.Y. State Rep. 3T5. 
 
 424 : Joliet v. Blower, 155 111. 414 ; 9 Hook v, Kenyon, 55 Hun, 598, 29 
 
 Smith V. Minneapolis Library Board, N. Y. State Rep. 889 ; Boteler v. Phil- 
 
 25 L. R. A. 280; Alabama & V. R. adelphia & R T. R. Co., 164 Pa. St 
 
 Co. V. Searles, 71 Miss. 744. 397; Pike v. Chicago, 155 111. 654; 
 
 Brownfield v. Bier, 15 Mont 403. 
 
DAMAGES — PEACTICE AS TO PEOOF OF. 685 
 
 state as to the value of second-hand furniture.^ If market 
 value be relevant to the issue it may be founded ultimately or 
 directly on hearsay.^ 
 
 (21) On the question of the depreciation of a house-lot by 
 an incumbrance limiting its use, the opinion of a witness quali- 
 fied by his own knowledge to decide the question is competent.' 
 A farmer and logger of land may state what it will cost an 
 acre to clear the land in question and put it in a condition for 
 the plow.* 
 
 §6. Offers made for pi'operty. — "While an offer made in 
 open market, such as the produce exchange, for an article of 
 recognized uniform character, constantly bought and sold in 
 the market and having a place in the daily reports of prices 
 current, is evidence of the value of such property at the time 
 of such offer, an unaccepted offer for a piece of property 
 not generally known in the market or to the public is not 
 evidence of its value, because it places before the court or 
 jury an absent person's declaration or opinion as to value, 
 while depriving the adverse party of the benefit of cross- 
 examination. The highest value at which an offer, standing 
 alone, can be estimated is that it represents the opinion of 
 him who makes it as to the worth of the property. Such of- 
 fers cannot be proven even by the party making them.^ There 
 seems to be an exception to the above rule where the property 
 has no market value.* In the few cases which may be found 
 holding the other way, the question does not seem to have re- 
 ceived much consideration from the courts rendering the decis- 
 ions, and the absence of agreement in their support renders 
 
 1 Phillips V. McNab, 30 N. Y. State Cherokee & D. H. Co., 78 Iowa, 438 ; 
 Rep, 853, 16 Daly, 150; Lewis Baillie Carter v. New York El. R, Co., 134 
 & Co. V. Western Assur. Co., 49 La. N. Y. 168, 28 N. Y. State Rep. 581. 
 Ann. 658. ^Barnum v. Bridges, 81 Cal. 604. 
 
 2 Cliquot's Champagne, 3 Wall. 114 ; 5 Hine v. Manhattan R. Co., 133 N. 
 Laurent v. Vaughn, 30 Vt. 90 ; Melish Y. 477, 44 N. Y. State Rep. 634 ; Whit- 
 V. Wood, 34 Pa. St 451 ; Doane v. Gar- ney v. Thacher, 117 Mass. 523 ; Atkin- 
 retson, 24 Iowa, 351 ; Whitbeok v. son y. Chicago & N. W. R Co., 93 
 New York Cent. R R. Co., 36 Barb. Wis. 363. 
 
 644; Whitney V. Thatcher, 117 Mass. tiRepuWican Newspaper Co. v. 
 
 533, 537 ; Whelan v. Lynch, 60 N. Y. North W. Associated Press, 51 Fed. 
 
 469. Rep. 377 ; Edgecomb v. Buckhout, 146 
 
 3 Foster v. Foster, 63 N. H. 533; N. Y. 333: Dodds v. South S. P. L. U. 
 Burlington & M. R. Co. v. White, 28 (1895), 3 Q. B. 133 ; Wallace v. Jones, 
 Neb. 166; Chicago, K. & W. R. Co. v. 93 Ga. 419. 
 
 Cosper, 43 Kan. 561; Pingerry v. 
 
686 EULES OF EVIDENCE. 
 
 unnecessary any special reference to them. In Harrison v. 
 Glover ^ the discussion had reference solely to the test which 
 the parties had established by their contract, and was not in- 
 tended to, and does not, afifect the question. 
 
 § 7. Price paid — Sales. — The cost of repairs of a vessel 
 is competent evidence of the damage suffered from a collision.^ 
 Proof of the cost of restoring land to its former condition, and 
 proof of diminution in the market value, are both admissible 
 on a question of damages.' So the value of new articles of a 
 similar kind is admissible to show the value of articles con- 
 verted which were substantially new.* So prices obtained for 
 the goods at honafide private sale are admissible on the ques- 
 tion of value in an action against a sheriff for conversion of a 
 stock of shop-worn goods, in connection with an offer to show 
 that the property was sold to the best advantage, although 
 the sales were made in a city at a distance from the place 
 where the goods were seized, and a year afterwards, in the ab- 
 sence of anything to show a difference in value.* Where its 
 market value is uncertain, it is competent to show that the 
 property had a special value for particular uses.* Evidence of 
 what a person paid for an article is competent as an element of 
 damages, and, in the absence of other proof, sufficient to estab- 
 lish its value.' Thus, in Jones v. Morgan,^ the plaintiff in an 
 action for conversion testified as a witness in her own behalf 
 to the value of certain articles of furniture. She testified that 
 she bought them at a certain time, and paid the market price 
 for them, and what they cost her. In that case the court said: 
 " The defendant was to be charged with the value of the arti- 
 
 1 73 N. Y. 451 ; Martin v. Delany, 47 western Fuel Co. v. Mahler, 36 Minn. 
 
 La. Ann. 719; Markowitz v. Kansas 166; Rawson v. Prior, 57 Vt 612; 
 
 City, 135 Mo. 485 ; Baltimore v. Smith Roberts v. Boston, 149 Mass. 346 ; 
 
 & S. Brick Co., 80 Md. 458. Burrill v. Lumber Co., 65 Mich. 571 ; 
 
 2 La Champagne, 53 Fed. Rep. 398. Alt v. Fig Co., 19 Nev. 118; Carter v. 
 
 3 Hartshorn v. Chaddook, 135 N. Y. Thurston, 58 N. H. 104 ; McDonald v. 
 1 16, 47 N. Y. State Rep. 838. Unaka Timber Co., 88 Tenn. 38 ; Pet«r 
 
 4Morey v. Hoyt, 63 Conn. 543, 47 v. Thickstuu, 51 Mich, 589. 
 
 Alb. L. J. 810. 6 Denver & R. G. R. Co. v. Griffeth, 
 
 5 Parmenter v. Fitzpatrick, 185 N. 17 Colo. 598. 
 
 Y. 190, 48 N. Y. State Rep. 80. But 'Bird v. Everard, 53 N. Y. State 
 
 see H. B. Claflin Co. v. Rodenberg, 99 Rep. 210 ; Jones v. Morgan, 90 N. Y. 
 
 Ala. 73 ; Jones v. Jones, 120 N. Y. 589 ; 4, 11 ; Hofifmau v. Conner, 76 id. 134 ; 
 
 Norton v. Willis, 73 Me. 580 ; Buford Wells v. Kelsey, 37 id. 14a 
 
 V. McGetchie, 60 Iowa, 398; North- sgoN. Y. 4. 
 
DAMAGES — PEACTICE AS TO PROOF OF. 687 
 
 cles at the time he failed to deliver them to the plaintifip upon 
 her demand, and their face value at that time, with interest, 
 was the measure of plaintiff's recovery. If it was practicable 
 to give evidence of their precise market value at that time, 
 then such evidence should have been required. But this was 
 second-hand furniture, having no real market value. The fur- 
 niture was lost, and hence it could not be exhibited to experts 
 for their valuation. It was incumbent upon the plaintiff to 
 make the best proof she could. She therefore gave proof 
 showing when she purchased the furniture, what it then cost 
 her in the market, how it had been used and what its condi- 
 tion was, and then what the depreciation was upon furniture 
 from the fact that it was old and had been used, and from all 
 these facts it was for the jury to determine the value of the 
 furniture at the time of the breach of defendant's contract." 
 "Within what range as to place and time witnesses shall be 
 confined in their testimony to the value of personal property, 
 when its value comes in question, must often depend upon the 
 circumstances of the case and be in the discretion of the trial 
 judge. When the property has a market value at the time 
 and place, which can be proved by witnesses who can then and 
 there speak of it, it must be proved by such witnesses. When 
 there is no market value at the place, then its market value at 
 some other place may be proved. If there is no market value 
 at the time, then the market value at some other time, before 
 or after, may be proved.^ Prices obtained upon public sales 
 are, for obvious reasons, considered some proof of the market 
 value of the property sold, and are receivable as evidence upon 
 the question of value.^ The usual method, however, of prov- 
 ing value in legal proceedings is by the testimony of witnesses 
 expressing their opinions under oath as to such value, based 
 upon their knowledge of the subject-matter and familiarity 
 with the circumstances bearing upon the question.' 
 
 § 8. By sales or value of other property.— In Massachu- 
 setts, ISTew Hampshire, Illinois, Iowa and Wisconsin it is held 
 
 1 Roe V. Hanson, 5 Lans. 305 ; South Noneraacher, 63 Minn. 425 ; McGuckin 
 
 African Territories v. Wallington v. Milbank, 152 N. Y. 397; Eastman 
 
 (C. A., 1897), 1 Q. B. 692 ; Sands v. Potter, v. New York, id. 468. 
 
 165 111. 397 ; Coffing v. Dodge, 167 Mass. 2 Campbell v. Wood worth, 20 N. Y. 
 
 231 ; Ferrero v. W. U. Tel. Co., 35 L. 499. 
 
 R. A. 548, 9 App. D. G 455 ; Reed v. s Clark v. Baird, 9 N. Y. 183 ; 1 
 
 W. U. Tel. Co., 135 Mo. 161 ; Olson v. Greenl. Ev., § 440, n. ; 1 Whart Ev., 
 
•688 EUiES OF EVIDENCE. 
 
 that actual sales of other similar land in the vicinity, made 
 Upar the time at which the value of the land taken is to be 
 •determined, are admissible as evidence for the purpose of ar- 
 riving at the amount of compensation;' while in some of the 
 .other jurisdictions, notably Pennsylvania, New Jersey, Geor- 
 gia and California, it is held that sales of similar property are 
 not admissible for the purpose of proving the value of property 
 about to be taken.^ The reasons assigned for the conclusion 
 reached in the cases last cited are, in the main, that the test 
 in legal proceedings is, what is the present market value of the 
 property which is the subject of controversy. It may be shown 
 hy the testimony of competent witnesses, and on cross-exam- 
 ination, for the purpose of testing their knowledge respecting 
 the market value of land in that vicinity, they may be asked 
 to name such sales of property, and the prices paid therefor, as 
 have come to their attention. But a party ipay not establish 
 the value of his land by showing what was paid for another 
 parcel similarly situated, because it operates to give the agree- 
 ment of the parties the effect of evidence by them that the 
 ■consideration for the conveyance was the market value, with- 
 out giving to the opposite party the benefit of cross-examina- 
 tion to show that one or both were mistaken. If some evidence 
 •of value, then prima facie a case may be made out, so far as 
 the question of damages is concerned, by proof of a single sale, 
 and thus the agreement of the parties, which may have been 
 the result of necessity or caprice, would be evidence of the 
 market value of land similarly situated, and become a standard 
 by which to measure the value of land in controversy. This 
 would lead to an attempt by the opposing party to show, first, 
 the dissimilarity of the two parcels of land, and second, the 
 circumstances surrounding the parties which induced the con- 
 veyance ;. such as a sale by one in danger of insolvency, in order 
 to realize money to support his business, or a sale in any other 
 
 §g 447, 449 ; Lawson's Expert Ev. burn v. Milwaukee & L. W. R. Co., 
 
 435 ; People ex rel. Mayor, etc. v. Mc- 59 Wis. 364. 
 
 Carthy, 103 N. Y. 630. 2 East Pa. R. Co. v. Hiester, 40 Pa 
 
 it&ardner v. Brookline, 137 Mass. St. 53; Pennsylvania R. R. Co. v. 
 
 858; Culbertson & Blair Packing Co. Bonnell, 81 id. 414; Pennsylvania S. 
 
 V. City of Chicago, 111 111. 651 ; Town V. R. Co. v, Zeimer,124 id. 560 ; Mont- 
 
 •of Cherokee v. S., C. & I. F. Town L. clair R. Co. v. Benson, 36 N. J. L. 557 ; 
 
 & L. Co., 53 Iowa, 379 ; Concord R. Selma, etc. R Co. v. Keith, 53 Ga. 17a 
 ■Co. V. Greely, 33 N. H. 342; Wash- 
 
DAMAGES PEACTIOE AS TO PROOF OF. 689 
 
 emergency which forbids a grantor to wait a reasonable time 
 for the public to be informed of the fact that his property is 
 on the market ; or, on the other hand, that the price paid was 
 excessive and occasioned by the fact that the grantee was not 
 a resident of the locality nor acquainted with real values, and 
 was thus readily induced to pay a sum far exceeding the market 
 value. Thus, each transaction in real estate claimed to be sim- 
 ilarly situated might present two side issues, which could be 
 made the subject of a vigorous contention as to the main issue, 
 and, if the transactions were numerous, it would result in un- 
 duly prolonging the trial and unnecessarily confusing the issues, 
 with the added disadvantage of rendering preparation for trial 
 difficult. Thus, in Huntington v. Attrill ^ the defendants at- 
 tempted to prove the value of certain seaside property by 
 showing the value of other property of the same general char- 
 acter situated near the property in dispute, and the court said : 
 "It may be that such evidence would have furnished some 
 guide for an estimate of the value of the property, but might 
 not. Such evidence would present collateral issues which might, 
 and very likely would, involve a variety of considerations hav- 
 ing relation to similarity or difference and to advantages and 
 disadvantages of the different properties in numerous respects 
 as compared with that in question. It is quite well settled 
 that evidence of that character is not admissible upon the ques- 
 tion of the value of property in controversy." 
 
 The question was not necessarily before the court in People 
 ex rel. Mayer v. McCarthy,^ but Euger, 0. J., referring to the 
 question whether the price paid on sales of real property 
 between individuals is admissible as evidence of value, said : 
 " "We think it quite clear, however, that such price is not in 
 any view competent evidence of value." In Blanchard v. 
 N. J. Steamboat Co.' the defendant attempted to show the 
 value of a sunken steamboat by proving the value of other 
 steamboats with which she could be compared, and it was 
 held that the evidence was not competent. It seems that the 
 value of property which depends upon the presence or absence 
 of inherent qualities not necessarily present or absent in other 
 and similar property cannot be proved by showing the price 
 
 1 118 N. Y. 365, 29 N. Y. State Rep. 5. 3 59 N. Y. 393. 
 2 102 N. Y. 630, 3 N. Y. State Rep. 566, 
 44 
 
690 EtJtES OF EVIPEKCE. 
 
 paid for such other and similar property. The value of prapr 
 erty having a recognized market value, such as No. 1 whegit 
 and corn, may of course be proven by showing the niiarket 
 prices; but the value of property which is dependent upon 
 locality, adaptability for a particular use, as well as the use of 
 property immediately adjoining, may not be shown by evi- 
 dence of the price paid for similar property. Even under tlje 
 Massachusetts rule, a reversal would not be justified, becaijise 
 of the extent of the discretion vested in the judge or officer 
 presiding at the. trial to determine whether such evid^ncfs is. 
 admissible, depending, of course, on various elements, such as 
 the nearness or remoteness of the time of sale; whether tk^ 
 premises are far separated; the condition of the property 
 about the parcel sold, and the use made of it, which may have 
 operated to enhance or diminish its selling value ; the siiwJar- 
 ity of the property, not only as to description, but as to its 
 availability for use.^ In Matter of Thompson ^ it was, held 
 that the value of property, such as a water-power, which i& 
 dependent upon locality, adaptability for a particular use, a? 
 well as the use of property immediately adjoining, may npt be 
 shown by evidence of the price paid for similar property. In 
 New Jersey it is held that evidence of the sales of other land 
 in the neighborhood is competent on an inquiry as to the. value 
 of land, only when there is substantial similarity between th^ 
 properties.' The same rule prevails in Washington.* 
 
 § 9. Sum inserted in deed no evidence of valu« of Ia,nd.— 
 The sum inserted in a deedi, when not authenticated in such a 
 manner as to. make- it evidence of the actual consideration, is - 
 not evidence of the value of the property, even, if the price paid 
 on sales of real estate between individuals should be deemed 
 admissible at all as evidence of value. Such sum is not in any 
 view competent evidence of value.' No rule of law requires 
 the true consideration paid upon a transfer of land to be in.' 
 serted in conveyances of real estate, and it is within the com- 
 mon knowledge of all conveyancers that the amount stated 
 therein is often determined by fanciful, capricious and arbi- 
 
 1 Chandler, v. Jamaica Pond Aque- ^ Laing v. United N. T. R & C, Co., 
 4uct Corp., 123 Mass. 305 ; Gardner 54 N. J. L. 576. 
 
 V. Brookline, 127 id. 358-368. < Seattle <& M. R Co. v. Gilchrist, i 
 
 2 127 N. Y. 463, 40 N. Y. State Rep. Wash. 509. 
 
 200. s Bouvier's Inst. 1224. 
 
DAMAGES PEAOTICB AS TO PllOOF OF. 691 
 
 trairy considerations, which render it utterlj unreliable as evi- 
 dence of value. It is frequently depressed by forced and un- 
 natural sales, and as often enhanced by fictitious values placed 
 upon property transferred in exchange, or deeded in settle- 
 ment of disputed claims, or given from consideration of affec- 
 tion, liberality and duty, and is at the best but the opinions of 
 the grantors and grantees of its- value, or a declaration of the 
 value placed by them upon the property. Such prices have 
 usually been held inadmissible as evidence of value in actions 
 relating to property, for the reason that they are liable to be 
 infltenced by too many causes, aside from the actual value, t© 
 be regarded as competent evidence of that fact. 
 
 § 10. Where there is no market value. — If the property 
 is of such a character as to have no market value, then other 
 proof tending to show the value at the proper time and place 
 ni'Ust of necessity be resorted to. Nothing in conflict with 
 these views appears to have been decided in Beach v. Raritan 
 <k D. B. E. Co.i In that case the action was to recover the 
 value of a barge, and it was said to be erroneous to allow proof 
 of the price paid for the barge six years before the time at 
 which her value was to be estimated for the purpose of the 
 trial. There does not appear to have been any difficulty to 
 prove the market value of the barge at the time she was con- 
 verted by the defendant, and it does not appear that there 
 was any necessity to resort to the price paid. 
 
 § 11. Work,, service, damages.— The price agreed upon for 
 work and labor done under a contract is admissible as evidence 
 of the value of the services rendered in an action therefor 
 brought after the contract is abandoned.^ So evidence of the 
 value of the service is admissible where the evidence is con- 
 flicting as to whether the minds of the parties ever met upon 
 the amount of compensation.' Evidence of the value of the 
 services of one for whose wrongful death suit is brought, in 
 the various occupations in which he has been engaged, is com- 
 petent and relevant in estimating the value of his life.^ In an 
 action for personal injuries, evidence of the reasonable price 
 
 137 N. Y. 457. 49 N. Y. State Rep. 294; Sanders v. 
 
 2 Roberts v. Demens Wood Work- Gallagher, 53 Minn. 422. 
 
 ing Co., Ill N. C. 433. « Christian v. Columbus & P. R. 
 
 ' Constable v. Lefever, 66 Hun, 628, Co., 90 Ga. 124. 
 
692 EULES OF EVIDENCE. 
 
 of the services of a nurse is admissible, where plaintiff has 
 been so disabled that he is unable to care for himself.^ 
 
 § 12. Opinion as to value of services. — In all cases, persons 
 of a particular trade who have seen a member of their trade 
 work for another may testify as to the value of his services. 
 Thus, in Johnson v. Ayers^ it was held that witnesses, having 
 been shown to have had opportunity to know, might be asked 
 what proportion of a man's time was devoted to his employer's 
 business. In McCullpm v. Seward ' it was held that a witness 
 who heard plaintiff testify as to the character and time of his 
 services might be asked : " What were his services, as he (plaint- 
 iff) described them, worth per month, taking the whole year 
 round?" 
 
 § 13. Proof of value in action on special contract. — Where 
 one party to an action to recover the value of services or 
 of property sets up a special agreement as to the price or 
 value, which is controverted by the other party, who also al- 
 leges a special agreement, it is pi'oper for either party to prove 
 the value of the services or of the property, as bearing upon 
 the issue between them and the probability that the one or 
 the other agreement was made.* Thus, where a plaintiff in an 
 action to recover for services rendered claims that the defend- 
 ant made a special agreement to pay him a certain amount for 
 such services, the defendant denying such agreement not only 
 has the right to give evidence directly disproving it and con- 
 tradicting the plaintiff's evidence in reference thereto, but he 
 has the right also to give evidence showing that it is extremely 
 improbable that such a contract was made; and if he can show 
 that the price claimed by the plaintiff is vastly disproportion- 
 ate to the value of the services, it has a tendency to impair the 
 force of the plaintiff's evidence and the weight which it would 
 otherwise receive.' 
 
 § 14. Benefits to premises. — In an action to restrain the 
 operation of an elevated road in a highway in front of abutting 
 
 1 Turner v. Boston & M. R Co., 158 kan v. Beck, 47 id. 117, 13 N. Y. State 
 
 Mass. 861. Rep. 235 ; Sturgis v. Hendricks, 51 
 
 2 103 N. Y. 663. N. Y. 635; Kavanaugh v. Wilson, 70 
 
 3 63N. Y. 316. id. 177. 
 
 * Cornell v. Markham, 19 Hun, 275 ; 5 Barney v. Fuller et al., 183 N. Y. 
 
 Cornish v. Graff, 36 id. 160; Knalla- 605, 44 N. Y. State Rep. 902. 
 
DAMAGES PEACTIOE AS TO PEOOF OF. 693 
 
 premises and for part damages, evidence of benefits to the 
 premises from the presence of such road is material and ad- 
 missible.' 
 
 ir. PBOUNIAET OONDITION, ETC. 
 
 § 15. In general. — The wealth of a defendant in an action 
 for slander by imputing unchastity to a female has no relation 
 to the injury suffered by the plaintiff, and cannot be shown in 
 aggravation of damages in the courts of 'New Tork.^ But evi- 
 dence that the plaintiff had a family of young children is admis- 
 sible on the question of damages ; and evidence of the pecuniary 
 condition of the plaintiff in an action for a personal tort is ad- 
 missible when there is oppression or malice justifying exem- 
 plary or punitive "damages ; ' and for like reasons the number 
 and status of the plaintiff's family may be shown.* So in an 
 action for slander, evidence of defendant's business standing 
 and position is admissible on the question of the weight of the 
 charge coming from him.' 
 
 § 16. Breach of promise of marriage — Reputation of de- 
 fendant's wealth. — Evidence of defendant's general reputa- 
 tion as to wealth at the time of an alleged agreement of 
 marriage is admissible upon the trial of an action for breach 
 of promise to marry. Such evidence, on first consideration, 
 seems to conflict with the general rule that in actions for a 
 breach of contract evidence as to defendant's wealth is inad- 
 missible. And this rule of exclusion as to such evidence has 
 been also applied to cases where damages are sought to be 
 recovered for seduction or for criminal conversation. Thus, 
 in Dean v. "Wycoff* the court say: "The jury should not be 
 allowed to go beyond the issue between the parties litigating, 
 and, after indemnifying the plaintiff for the injury sustained 
 by him, proceed, as conservators of the public morals, to punish 
 the defendant in a private action for an offense against society. 
 The principle underlying the exclusion of this kind of evi- 
 
 'O'Dell V. Metropolitan El. E. Co., ^Beck v. Douell, 111 Mo. 506. 
 
 52 N. Y. State Rep. 7. ButseeLazer- ^Christian v. Columbus &RR. Co, > 
 
 ous V. Metropolitan El. R. Co., 53 id. 90 Ga. 134 ; Press Pub. Co. v. McDon- 
 
 31, 69 Hun, 190. aid, 26 L. R. A. 531 ; Mathris v. Mazet, 
 
 2Enos V. Enos, 135 N. Y. 609, 48 164 Pa. St. 580. 
 
 N. Y. State Rep. 393; Roach v. Cald- 5 Ellis v. Whitehead, 95 Mich. 105. 
 
 beck, 64 Vt. 598. 63 geld. 191. 
 
^94 EULES OF EVIDENCE. 
 
 'dence in the latter class of cases is that vindictive or punitive 
 damages would be improper, as the recovery in them should 
 be confined to what the jury deem to be a sufficient .compen- 
 sation for thfe injury sustained by the plaintiff. But an action 
 for breach of promise of marriage constitutes an exception to 
 that general rule upon the subject of damages for violation of 
 contract obligations which has been assented to "by the judges 
 of the courts of this country and England. It is apparent 
 that in such an action there can be no hard-and-fast rule of 
 damages, and that they must be left to the discretion of the 
 jury. Of course that discretion is not so absolute as to be 
 independent of a consideration of the evidence. That the 
 amount of the suitor's pecuniary means is a factor of some 
 importance in the case of a demand of marriage cannot fairly 
 be denied. The jury should be made aware of all the circum- 
 stances which he supposed to have presented themselves to 
 the mind of the plaintiff when asked to change her position 
 by a marriage. The wealth and the reputation for wealth of 
 a man are matters which, as this world is constituted, often 
 aid in determining his social position." '■ 
 
 III. LIBEL — EEPETITION. 
 
 §17. In general.— A plaintiff in an action for libel or 
 slander may prove a repetition by the defendant, before the 
 commencement of the action, of the slander charged in the 
 complaint, as bearing upon the degree of malice which act- 
 uated him in speaking the words laid. It is not necessary that 
 the words are the same, nor substantially the same, as those 
 laid in the complaint, if they are of the same import. The 
 words laid in the complaint must be proved in substance, and 
 different words, although imputing the same charge, but in en- 
 tirely different language, will not support the complaint. But 
 where the object of proving other words is to show the mali- 
 cious intent of the defendant in speaking the words laid, then, 
 provided they impute the same and not a different charge or 
 a charge of a different nature, they are competent. If the 
 words are a repetition of the same calumny, the particular 
 
 . 1 Mayae on Damages (Wood's ed.), 289 ; Ohellia v. Cleaf man, 125 N. Y. 
 § 677 ; Kniffen v. McConnell, 30 N. Y. 214, 35 N. Y. State Rep. 30. 
 
DAMAGES PEAOTIOE AS TO PEOOF OF. 695 
 
 form of words in which the repetition is clothed is immaterial. 
 The proof of such words would bar another action by. the 
 plaintiff founded thereon, to the same extent as if the words 
 were identical.^ "Words proved as repetitions, of the slander 
 charged are not independent ground Of action in the case and 
 no recovery can be had for uttering them.^ In an action for 
 slander in imputing unchastity to a female, a repetition of the 
 imputation in othet words than those laid in the complaint 
 may be proved as bearing upon the defendant's malice, but not 
 to sustain the action.' So in An action for libel, by imputing 
 unchastity to a woman, testim'ony of insulting letters and un- 
 timely calls from men received by the plaintiff is competent 
 as showing how the publication was understood. 
 
 § 18. Repetition of libel after action commenced. — In an 
 action for libel, evidence of the repetition of the libel or pub- 
 lication of other libelous matter aftet- the commencement of 
 the Action is inadmissible for ^ny purpose.* A plaintiff in an 
 action for slander, based on statements of defendant that she 
 had been guilty of immoral acts, V?hb denies the same, may be 
 impeached by evidence of her general character since the al- 
 leged slanderous words were spoken.^ 
 
 1 Root V. Lowndes, 6 Hill, 518 ; Siinbiis v. Burnham, 103 Mich. 189 ; 
 Tonini v. Cavasco, 114 Cal. 366; Enos v. Enos, 135 N. Y. 609, 48 N. Y. 
 Coogler V. Rhodes, 38 Fla. 340; Scul- State Rep. 392. 
 
 Hn V. Harper, 4« U. S. App. 673 ; * Eccles v. Bodam, 57 N. Y. State 
 
 Williams v. McKee, 98 Tenn. 139. Rep. 657, 75 Hun, 535. 
 
 2 Enos V. Enos, 135 N. Y. 609, 48 5 State v. Spurling, 118 N. C. 1350; 
 N. Y. State Rep. 3i93. Fenstermaker v. Tribune Pub. Co., 35 
 
 ^ State V. Mason, 36 Oreg. 373 ; Child L. B. A. 611, 13 Utah, 532 ; -Lord Nevill 
 V. San Jose M. P. & P. Co., 105 Cal. v. Fine Art & G. Ins. Co. {H. L. E., 
 384; State v. Dettner, 124 Mo. 436; 1897), A. 0. 68, 75 Law T. Rep. 606. 
 
CHAPTEE XX. 
 
 PRACTICE IN ADMISSION AND EEJEOTION OF EVIDENCE. 
 
 L EXAMINATION IN CHIEF. 
 
 § 1. Leading questions, 
 
 a. Refreshing memory by writing. 
 
 8. Discretionary with judge when. 
 
 4. Right of cross-examination. 
 
 5. Extent of strict cross-examina- 
 
 tion. 
 
 6. Cross-examination as to credit. 
 
 7. Opening door for cross-exami- 
 
 nation. 
 
 8. Examination as to previous 
 
 statements in writing. 
 
 9. Re-examination. 
 
 10. Recross examination. 
 
 11. Whole writing — Limit of rule 
 
 as to. 
 13. Papers made at different times. 
 
 IL OBJECTIONS TO EVIDENCK 
 
 13. In general. 
 
 14. When general objection suffi- 
 
 cient 
 
 15. When objection must assign 
 
 the particular ground. 
 
 16. One objection to same class of 
 
 evidence sufficient. 
 
 17. Answer irresponsive in part — 
 
 Remedy of opposite party. 
 
 18. Questions by co-defendant. 
 
 19. Direction to disregard evidence. 
 
 20. When motion to strike out 
 
 comes too late. 
 
 21. Objection — When to be made. 
 
 III. EXCEPTIONS. 
 
 I. EXAMINATION IN CHIEF. 
 
 § 1. Leading questions. — The chief rule of practice relative 
 to the interrogation of witnesses is that which prohibits "lead- 
 ing questions;" *. e., questions which directly or indirectly 
 suggest to the witness the answer he is to give. The rule is 
 that on material points a party must not lead his own wit- 
 nesses, but may lead those of his adversary; in other words, 
 that leading questions are allowed in cross-examination but 
 not in examination in chief.^ It is sometimes said that the test 
 of a leading question is whether an answer to it by " Yes " or 
 "No" would be conclusive upon the matter in issue ;^ but, al- 
 though such questions undoubtedly come within the rule, it is 
 by no means limited to them. "Where " Yes " or " No " would 
 
 1 People V. Mather, 4 Wend. 329, Haven, 77 Ind. 236 ; Trammel v. Mc- 
 
 247 ; Snyder v. Snyder, 6 Binn. 483 ; Dade, 29 Tex. 360 ; De Fort v. Painter, 
 
 Lee V. Tinges, 7 Md. 315 ; Osborn v. 30 L. R. A. 722 ; Com. v. Crowley, 167 
 
 Forshee, 23 Mich. 309 ; State v. Ben- Mass. 434. 
 
 ner, 64 Me. 367, 379 ; Stringfellow v. 2 Rose. Crlm. Ev. 130 (6th ed.). 
 State, 36 Miss. 157 ; De Haven v. De 
 
PEA.CTICE IN ADMISSION AND EEJEOTION OF EVIDENCE. 697 
 
 be conclusive on any part of the issue, the question would be 
 equally objectionable; as if, on a traverse of notice of dishonor 
 of a bill of exchange, a witness were led either as to the fact 
 of giving the notice or as to the time when it was given. So 
 leading questions ought not to be put when it is sought to ■ 
 prove material and proximate circumstances. If, hov?ever, the 
 question is on an immaterial point, such question maybe asked.' 
 In practice, leading questions are often allowed to pass with- 
 out objection, sometimes by express and sometimes by tacit 
 consent. This latter occurs where the questions relate to mat- 
 ters which though strictly speaking in issue, the examining 
 counsel is aware are not meant to be contested by the other 
 side, or where the opposing counsel does not think it worth 
 his while to object. So a witness may be led to the topic 
 with regard to which his evidence is desired.^ A question 
 which may be answered by " Yes " or " JSTo " is not leading 
 unless it is in some manner indicated which is expected or de- 
 sired.' A question may be leading though made in the com- 
 mon alternative form, " whether or not." * No question can be 
 asked which assumes as proven a fact in issue or dispute.' The 
 rule does not apply to the court." It should never be forgot- 
 ten that "leading" is a relative, not an absolute, term. There 
 is no such thing as "leading," in the abstract; for the identi- 
 cal form of question which would be leading of the grossest 
 kind in one case of facts might be not only unobjectionable, 
 but the very fittest mode of interrogation in another.' 
 
 iDay V. Porter, 161 111. 235; Hale 143; Spear v. Richardson, 37 N. H. 23, 
 
 V. Taylor, 45 N. H. 405 ; "Wilson v. 31 ; FJoyd v. State, 30 Ala. 51 1 ; Ma- 
 
 McCuUough, 23 Pa. St. 440; Adams this v. Buford, 17 Tex. 152. 
 
 V. Harrold, 29 Ind. 198; Hopper v. * People v. Mather, 4 Wend. 229, 
 
 Com., 6 Gratt. 680 ; Potter v. Bissell, 248; Willis v. Quimby, 31 N. H. 485, 490. 
 
 3 Lans. (N. Y.) 205 ; Coogler v. Rhodes, 5 Turney v. State, 8 Sm. & M. 104 ; 
 
 38 Fla. 240. Davis v. Cook, 14 Nev. 265, 287 ; 
 
 2 People V. Mather, 4 Wend. 229, Hewitt v. Clark, 91 111. 605; Balti- 
 
 247; Long v. Steiger, 8 Tex. 460; more, etc. R. Co. v. Thompson, 10 
 
 Cronan v. Getting, 99 Mass. 334, 337 ; Md. 76 ; People v. Graham, 21 Gal. 
 
 Strawbridge v. Spann, 8 Ala. 820, 835 ; 261 ; People v. Mather, 4 Wend. 229, 
 
 Boothby v. Brown, 40 Iowa, 104 ; 348 ; Page v. Parker, 40 N. H. 47, 63. 
 
 Cheeney v. Arnold, 18 Barb. 434; ' Com. v. Galavan, 9 Allen, 271; 
 
 Starkie, Ev., p. 167; Kennedy v. Epps v. State, 19 Ga. 103, 118. 
 
 State, 19 Tex. App. 618 ; Sprenger v. ^ Saflford v Horn, 73 Miss. 470 ; 
 
 Tacoma Traction Co., 15 Wash. 660. People v. Nino, 149 N. Y. 317 ; Nor- 
 
 ' Kemmerer v. Edelman, 23 Pa. St ton v. Parsons, 67 Vt. 526. 
 
698 EULES OF EVIDENCE. 
 
 There are some exceptions to the rule against leading: 
 1. For the purpose of identiifying persons or things the atten- 
 tion of the witness may be directly pointed to them. 2. "Where 
 one witness is called to contradict another as to expressions 
 used by the latter, but which he denies having used, he may 
 be asked directly. Did the other witness use such and such ex- 
 pressions.^ The authorities are not quite agreed as to the rea- 
 son for this exception,^ and some strongly contend that the 
 memory of the second witness ought first to be exhausted by 
 his being asked what the other said on the occasion in question.' 
 3. The rule which excludes leading questions being chiefly 
 founded on the assumption that a witness must be taken to 
 have a bias in favor of the party by whom he is called, when- v 
 ever circumstances show that this is not the case, and that he 
 is either hostile to that party or unwilling to give evidence, 
 the judge may in his discretion allow the rule to be relaxed.* 
 And it would seem that, for the same reason, if the witness 
 shows a strong bias in favor of the cross-examining party, the 
 right of leading him ought to be restrained ; but the authorities 
 are not quite clear about this.^ 4. The rule will be relaxed 
 where the inability of a witness to answer questions put in 
 the regular way obviously arises from defective memory or 
 from the complicated nature of the matter as to which he is 
 interrogated. 5. After the "general memory " of the witness 
 is exhausted leading questions may be put,* and where a wit- 
 ness is hostile.'' In other words, it is not error for a party to 
 call his witness' attention to particular facts, without leading, 
 where the witness has, without interruption, gone through the 
 
 1 Edmonds v. Walter, 3 Stark. 7. People, 99 111. B68 ; Canter v. Watson, 
 
 2 Courteen v. Touse, 1 Campb. 43 ; 4 Jones (N. C), L. 455. 
 
 Hallett V. Cousens, 2 Moo. & R 238. 'State v. Banner, 64 Me. 367; Bank 
 
 3 Ph. & Am. Ev. 889 ; 1 Phill. Ev. of Northern Liberties v. Davis, 6 
 463 (10th ed.). Watts & Serg. 285 ; Coker v. Hayes, 
 
 i Ph. & Am. Ev. 888 ; 2 Phill. Ev. 16 Fla. 368 ; Bradshaw, Adm'r, v. 
 
 462 (10th ed.). Combs, 102 111. 428 ; Severance v. 
 
 «Rosc. Crira. Ev. 131 (6th ed.); 2 Carr, 43 N. H. 65; Wells v. Iron 
 
 Phill. Ev. 472, 473 (10th ed.) ; Tayl. Co., 48 N. H. 491, 540 ; The Charles 
 
 Ev., § 1288 (4th ed.). Morgan, 115 U. S. 69; Hausenfluck's 
 
 * Herring v. Skaggs, 73 Ala. 446 
 Cheeney v. Arnold, 18 Barb. 434 
 Moody v. Rowell, 17 Pick. 490, 498 
 liowe V. Lowe, 40 Iowa, 220 ; Donnell v. Dunspaugh, 30 N. Y. 170. 
 V. Jones, 13 Ala. 490, 507; Coon v, 
 
 Case, 85 Va. 702 ; Smith v. Hutchins, 
 30 Mo. 380; State v. Lull, 37 Me. 246; 
 York V. Pease, 2 Gray, 283 ; Walker 
 
PEACTICB IN ADMISSION AND EEJEOTION OF EVIDENCE. 699 
 
 story of the incidents of a transaction.^ And while a party 
 cannot cross-examine his own witness, and is in general bound 
 by the answers made, it is not objectionable, after the witness 
 has given an ambiguous answer, to inquire as to any circum- 
 stances or facts tending to enable him to recollect the fact 
 sought to be proved more clearly or certainly.- And a party 
 may, for the purpose of refreshing the memory of a witness 
 called by him, ask him if he had not previously testified to 
 certain contradictory facts specified.' It has been held to be 
 error not to permit a party to ask his own witness, for the pur- 
 pose of refreshing his memory, whether he had not at some 
 other time made statements inconsistent with his testimony.* 
 § 2. Refreshing memory by writing. — The inspection of 
 the document by the witness does not make it evidence. 
 Hence the fact that the document would be inadmissible 
 makes no difference ; it may still be used for the purpose of 
 refreshing memory;* but the opposite party is always entitled 
 to inspect the memorandum in order to check the use made of 
 it, and, if necessary, to examine the witness as to the time at 
 which it was made, or on anj'' other point which may arise out 
 of the use to which it is being put. The judge and jury have 
 a like right of inspection.* If, however, the opposite counsel 
 on thus inspecting it should refer to other entries or parts of 
 the document which have not been used to refresh the wit- 
 ness' memory, he will make them evidence against himself on 
 the general principle by which either party who calls for and 
 inspects a document in possession of the other side is bound to 
 put it in; and, conversely, it has been held, where the docu- 
 ment produces no impression on the witness' memory, that 
 inasmuch as it had M^hoUy failed of its purpose the opposite 
 side is not entitled to inspect it.' 
 
 1 People V. Druse, 103 N. Y. 655. Ass'n, 98 Tenn. 48 ; Dwight v. Cut- 
 
 2 O'Hagan v. Dillon, 76 N. Y. 170. ting, 91 Hun, 38 ; Brownell v. Black, 
 
 3 People V. Killy, 113 N. Y. 647; 31 N. B. 594; Miller v. Preble, 143 Ind. 
 Com. V. Brown, 150 Mass. 830 ; State 633 ; People v. Brow, 90 Hun, 509 ; 
 V. Cummings, 76 Iowa, 133; Stanley McGowan v. McDonald, 111 Cal. 57; 
 V. Stanley, 113 Ind. 143. WoodruflE v. State, 61 Ark. 157. 
 
 « White V. State, 87 Ala. 34; Pick- ' « Sinclair v. Stephenson, 1 C. & P. 
 
 ard V. Bryan, 93 Mich. 430 ; State v. 583 ; R. v. Eamsden, 3 id. 603 ; Gregory 
 
 Sharp, 133 Mo. 165. v. Tavernor, 6 id. 380 ; People v. Ross, 
 
 » Maugham v. Hubbard, 8 B. & C. 115 Cal. 333. 
 
 14 ; Gregory v. Tavernor, 6 C. & P. ' R. v. Duncombe, 8 C. & P. 869. 
 380, 281 ; Graham v. Fidelity Mut. L. 
 
YOO EULES OF EVIDENCE. 
 
 The term "memorandum " denotes the use to which the docu- 
 ment is put, and does not import that the rule is confined to 
 documents of any particular form. It is applicable, as the 
 cases show, to the ordinary books of account kept by business 
 men, depositions, a ship's log-book, and in fine to any form of 
 writing which fulfills the terms of the rule. ISTor is it neoes- 
 sary that the memorandum should be in the witness' own 
 handwriting, if it was made under his personal observation 
 or recognized by him as a correct statement at a time when 
 the facts were fresh in his memory. If a memorandum 
 evokes no independent recollection of the transaction in a wit- 
 ness' mind, he is not entitled to prompt himself with it so as 
 to be able to give evidence, unless he also brings the document 
 itself into court.^ The only exception to this is where the 
 original is lost and the witness produces a copy which he can 
 prove to be accurate.^ But for convenience sake a witness 
 who has his original notes in court has been allowed by the 
 judge to refresh his memory by means of a printed copy of a 
 report which was in all respects a transcript from them.' But 
 where the original might have been produced it will not suf- 
 fice to have in court either a copy* or extracts from it.^ On 
 the other hand, where the memorandum, whenever used and 
 whether an original or not, has evoked an independent recol- 
 lection in the witness' mind, the production of the original in 
 court is not essential to the admissibility of the evidence.* 
 
 § 3. Discretionary with judge when. — It is within the dis- 
 cretion of a judge at the trial, under peculiar aircumstances, 
 to permit a leading question to be put to one's own witness, 
 as when he is manifestly reluctant and hostile to the interests 
 of the party calling him, or where he has exhausted his mem- 
 ory without stating the particulars required, where it is a 
 proper name, or other fact which cannot be significantly 
 pointed to by a general interrogatory, or where the witness is 
 a child of tender years whose attention can be called to the 
 matter required only by a pointed or leading question. So a 
 judge may, in his discretion, prohibit certain leading questions 
 
 1 Howard v. Canfield, 5 Dowl. 417 ; 3 Home v. Mackenzie, 6 CI. & F..638. 
 
 Beech v. Jones, 5 C. B. 696 ; Frindel v. « Jones v. Stroud, 2 0. & P. 196. 
 
 Shaskwitz, 16 App. Div. 143. 5 Doe v. Perkins, 3 T. R. 749. 
 
 ^Topharav. McGregor, I.e. &K. 330; 'Tanner v. Taylor, 3 T. R. 754; 
 
 Talbot V. Cussaok, 17 Ir. C. L. R. 213. Beech v. Jones, 5 C. B. 696. 
 
PEAOTIOE IN ADMISSION AND EEJECTION OF EVIDENCE. 701 
 
 from being put to an adversary's witness where the witness 
 shows a strong interest or bias in favor of the cross-examining 
 party, and needs only an intimation to say whatever is most 
 favorable to that party. The witness may have purposely con- 
 cealed such bias in favor of one party to induce the other to 
 call him and make him his witness ; or the party calling him 
 may be compelled to do so to prove some single fact necessary 
 to his case. This discretionary power to vary the general rule 
 is to be exercised only so far as the purposes of justice plainly 
 require it, and is to be regulated by the circumstances of 
 each case. Upon the question whether, as a general rule, the 
 cross-examining party is prohibited from putting a leading 
 question to a matter not inquired of by the party calling him 
 on his examination in chief, there is a diversity of opinion. It 
 was held in Harrison v. Eowan' that such question could not 
 be put. The same view seems to have been taken in Ellraaker 
 V. Buckley." But it seems that the general practice has been 
 otherwise both in England and in this country, and is so laid 
 down by Starkie' and by Phillips.* In Dickinson v. Shee^ it 
 was decided that such a leading question is admissible. So, 
 in several recent cases it has been held that where a witness 
 is called to a particular fact he is a witness for all purposes and 
 may be fully cross-examined to the whole case, and no distinc- 
 tion is suggested as to the mode of examination.' On the 
 whole it seems that the weight of authority is in favor of the 
 right to put leading questions under ordinary circumstances. 
 It is most desirable that rules of general practice of so much 
 importance and of such frequent occurrence should be as few, 
 
 1 3 Wash. C. C. 580. » 4 Esp. 67 ; State v. Gleiiti, 31 L. R 
 
 2 16 Serg. & Eawle, 77. A. 294, 17 Mont. 17 ; State v. Johnson, 
 
 3 1 Stark. Ev. 131 ; Buck v. Boston, 48 La. Ann. 437 ; State v. Southern, 
 
 165 Mass. 509 ; Hawea v. Colburn, id. id. 628 ; Goon Bow v. People, 160 111. 
 
 385; Morril v. Palmer, 68 Vt. 1; 438; Ball v. United States, 163 U. S. 
 
 Lewis V. Boston Gaslight Co., 165 662 ; Stanley v. Dunn, 143 Ind. 495 ; 
 
 Mass. 411; Ee Mullin's Estate, 111 Cal. Philadelphia v. McGinn, 173 Pa. St. 
 
 353 ; State v. Rutten, 13 Wash. 303. 281. 
 
 <1 Phill. Ev. 260; Weldon v. Third « Morgan v. Bridges, 3 Stark. 314; 
 
 ^ve. E. Co., 3 App. Div. 370 ; Laidlaw Rex v. Brooke, id. 472 ; Coogler v. 
 
 V. Sage, 3 id. 374; Eanney v. St. Johns- Rhodes, 38 Fla. 240 ; Wallace v. Bern- 
 bury & L. 0. R. Co., 67 Vt. 594 ; Union heim, 63 Ark. 108. 
 
 P. R. Co. V. O'Brien, 161 U. S. 451 ; 
 
 Re Parrett, 73 Law T. Rep. 324. 
 
702 EULES OF EVIDESCB. 
 
 simple and practicable as possible, and that distinctions should 
 not be multiplied without good cause. It would be often diffi- 
 cult, in a long and complicated examination, to decide whether 
 a question applies wholly to new matter or to matter already 
 examined in chief. The general rulej admitted on all hands, 
 is that on a cross-examination leading questions may be piat; 
 and it seems that it would not be useful to engraft upon it a 
 distinction not in general necessary to attain the purpose of 
 justice in the investigation of the truth of facts; that it would 
 be often difficult of application, and that all the practical good 
 expected from it may be- as effectually attained by the exer- 
 cise of the discretionary power of the court, where the cir- 
 cumstances are such as to require its interposition.'' It is a 
 mistake to suppose that such only is a leading questio-n to' 
 which " Yes " or "No" would be a conclusive answer. A question 
 is leading which puts into a witness' mouth the words that are 
 to be echoed back or plainly suggest the answer which the 
 party wishes to get from him. It is often a matter of extreme 
 difficulty tO' distinguish such questions as ought not to be tol- 
 erated because they are leading from those which, though in 
 their form leading, are in effect only calculated to draw the 
 mind of the witness to the subject of the inquiry. If the ques- 
 tion relate to introductory matter, and be designed to lead the 
 witness with more expedition to what is material to the- issue, 
 it IS captious to object to it, even if it be leading. The per- 
 nicious influence of leading questions is most felt and to' be' 
 feared when the object of inquiry is to ascertain the details of 
 conversation, admission or agreement; and therefore raore 
 rigor is called for and justified in confining the direct exami- 
 nation in such cases to its appropriate rules. There is an es- 
 sential difference between, a direct examination and a cross- 
 examination ; and the court ought not, except in peculiar casesy 
 to permit the former to assume the character of the latter. 
 Thus, in People v. Mather^ it is said thalt putting a question 
 which assumes a fact to be in evidence which is not is not al- 
 lowable, even on cross-examination ; also that putting a q^ues- 
 
 1 Moody V. Rowell, 17 Pick. 490; v. Union C. L. Ina. Co., 182 Pa. St. 150 ; 
 Cheeney v. Arnold, 18 Barb. 434; Peo- Ashborne v. Waterhury, 69 Conn. 317; 
 pie V. Conroy, 153 N. Y. 174; Mullen 2 4 Wend. 239; Hines' Appeal, 68' 
 
 Conn. 551. 
 
PEACTICE IN ADMISSION AND EEJEOTION OF EVIDENCE. 703 
 
 tion ia the alteraative form does not render it less objection- 
 able as leading. 
 
 § i. Right of CFOSS-examinattiOM. — Tbe general rule seems 
 to be that, so far as the (frossresamination of a witness relates 
 either to facts in issue, or relevant facts, it may be pursued hy 
 counsel as matter of right ; but when its object is to ascertain 
 the accuracy or credibility of a, witness, its method and dura- 
 tion are subject to th.e discretion of the trial judge, and unkss 
 abused its exercise is not the subject of review ; nor can the 
 witness be cross-examined as to any facts which, if admitted, 
 would be collflteral: and wholly irrelevant to the matter in 
 issue and which would in no way affect his credit.^ "Where a 
 party in an action fop damages puts in evidence his injured 
 member, it is, for the purpose of the trial, made the property 
 of the court and opposite party for the purpose of cross- 
 examination. It is diiHcult to conceive of species of evidence 
 that is, offered by one party in support of his case which may 
 not^ in the same tribunal, be examined and criticised by the 
 party against whom it is offered. In the case of refusal to 
 submit to such inspection by a woman plaintiff, her evidence, 
 so far as that exhibit and explanation of the same by her are 
 concerned, must be stricken out on defendant's motion.^ , So 
 the party producing a witness and examining him must have 
 him in court to be cross-examined, and, if he does not, the di- 
 rect examination will be stricken out.' If, however, the party 
 desiring to cross-examine does so, and he is not prevented 
 by the plaintiff or by the adjournment of the court from com- 
 pleting it, it is his duty to complete it ; and if he defers it an- 
 other day for his own convenience, the opposite party is not 
 obliged to detain the witness; and, if the latter absents him- 
 self, it is not the fault of the party calling him. Notice to the 
 plaintiff's counsel and the witness that he intended to resume 
 the cross-examination at a future time imposes no duty upon 
 the plaintiff or the witness. If defendants could compel the 
 party to keep his witnesses for one day he could for ten days. 
 
 1 State v. Pancoast, 5 N. D. 514; Col well v. Col well, 14 App. Div. 89; 
 Langley v. Wad^worth, 99 N. Y. 61. People v. Crespi, 115 Gal. 50 ; Driggers 
 
 2 Winner v. Lathrop, 67 Hun, 511. v. State, 38 Fla. 7 ; State v. Smith, 57 
 'Burden v. Pratt, 1 T. & C. (N. Y.) Kan. 673; Williams v. State, 73 Miss. 
 
 554; Crawford v. State, 112 Ala. 1; 820; Towns v. State, 111 Ala. 1; Smith 
 Hankinson v. Valtine, 152 N. Y. 20; v. Hine, 179 Pa. St. 203. ' 
 
704 EULES OF EVIDENCE. 
 
 But it may be taken as a rule that,-wliere a party is deprived 
 of the benefit of the cross-examination of a witness by the act 
 of the opposite party, or by the refusal to testify, or other 
 misconduct of the witness, or by any means other than the 
 act of God, the act of the party himself, or some cause to 
 which he assented, the testimony given on the examination in 
 chief may not be read.* It is error to suffer to go to the jury 
 any evidence given by a witness on direct examination by the 
 people, where, by sudden illness, or by the death of such wit- 
 ness, or other cause without the fault of and beyond the 
 control of the prisoner, he is deprived of his right to cross- 
 examine ; ^ and if a witness is allowed to leave the stand or 
 the court-room after cross-examination without the attention 
 of the court being called to the fact, the cross-examining coun- 
 sel, if he wishes to cross-examine him further, should, upon 
 application, have a brief adjournment to enable him to secure 
 the attendance of the witness.' But while a party has a right 
 to thoroughly cross-examine a witness, it is within the discre- 
 tion of the court to place a reasonable limit thereto.* In 
 equity the testimony of a witness whose cross-examination 
 has been prevented without fault of the party producing him 
 or of the witness, or cut off by the witness' death, is admissi- 
 ble.^ It seems to be proper cross-examination to have a wit- 
 ness repeat what he has testified on direct examination or 
 restate the transaction;^ and although questions assuming 
 facts not in evidence are improper,' to test a witness' recollec- 
 tion the cross-examination may extend to matters not in issue ; ' 
 though it seems it is not error for the court to exclude ques- 
 tions propounded to a witness called by the opposite party, of 
 whom he purchased the goods he furnished defendant. Liti- 
 gants ought to prepare their case for trial before the jury is 
 impaneled and sworn, and if they do not they cannot com- 
 plain if the court excludes questions propounded merely to 
 
 1 Storm V. Atlantic Mut. Ins. Co., ' Cornwell v. Cagwin, 44 N. Y. State 
 63 N. Y. 87 ; People v. Cole, 43 id. 508. Eep. 12 ; Pennsylvania Co. v. New- 
 
 2 People v. Cole, 43 N. Y. 508. meyer, 139 Ind. 401 ; Hines' Appeal, 
 
 3 People V. Severance, 67 Hun, 183. 68 Conn. 551. 
 
 < Warfolk v. Slate, 85 Ga. 69. « State v. Duffy, 57 Conn. 535 ; 
 
 6 Scott V. McCann, 76 Md. 47. State v. EUwood, 17 E, L 763. 
 6 Beers v. Payment, 95 Mich. 261; 
 State V. Grlswold, 33 L, R. A. 237. 
 
PEAOTICE IN ADMISSION AND EEJECTION OF EVIDENCE. 705 
 
 ascertain the names of persons whom they desire to call as 
 witnesses to disprove the cause of the opposite party.' The 
 rule authorizing cross-examination does not apply where a 
 witness is sworn but not examined ; ^ nor to preliminary ex- 
 amination as to the competency of evidence.' 
 
 § 5, Extent of strict cross-examination It seems to be 
 
 within the discretion of the court to allow cross-examination 
 as to matters not referred to in direct examination ^ as where, 
 upon the trial of an action, a witness for the plaintiff testifies 
 to having met several persons, and the time he met them, to 
 allow the defendant to cross-examine him as to what conver- 
 sations he had with them on the occasion mentioned; and 
 where a party testifies to a part of a conversation which he 
 had with a party, to allow the opposite party to call for the 
 whole of the conversation.^ And while it has been held that 
 where a party is offered as a witness it is proper to allow any 
 cross-examination affecting the merits of the cause, whether 
 the facts sought to be shown by such cross-examination have 
 been referred to on the direct examination or not,' it seems 
 to be a general, long-established and wellrsettled rule that it 
 is an abuse of discretion for the trial court to allow a witness 
 to be cross-examined generally as to matters not embraced in 
 his chief examination, and that a party has no right to cross- 
 examine a witness except as to facts and circumstances con- 
 nected with his direct examination.* As a general rule it is 
 error to allow a party litigant to be cross-examined as to mat- 
 ters as to which he has not testified in chief. If a party wishes 
 to examine the Tyi.tness as to other matters he must do so by 
 
 1 Storm V. United States, 94 U. S. ner, 51 Mo. App. 46; State v. Allen, 
 76; People v. Fitzgeiiald, 27 N. Y. 107 N. C. 805. 
 
 State Rep. 595; State v. Finlay, 118 spickard v. Bryant, 92 Mich. 430; 
 
 N. C. 1161 ; State v. Conerly, 48 La. Ireland v. Cincinnati. C. & C. Ry. Co., 
 
 Ann. 1561; Swift & Co. v. Madden, 79 id. 163; Hay v. Reed, 85 id. 296; 
 
 165 111. 41 ; North Chicago St. R Co. Tla-Koo-Yel-Lee v. United States, 107 
 
 V. Southwick, id. 494 ; Kirk v. Gajr- U. S. 274. 
 
 rett, 84 Md. 383. « Chandler v. Beall, 132 Ind. 596 ; 
 
 2 Austin V. State, 14 Ark. 555. City of Atchison v. Rose, 43 Kan. 
 
 3 Com. V. Morrell, 99 Mass. 542. 605 ; State v. Walsh, 44 La. Ann. 1122 ; 
 ^People V. Deegan, 88 Cal. 602; Boyd v. Conshohocken Worsted Mills, 
 
 People V. Dixon, 94 id. 255 ; Home 149 Pa. St 863 ; Adams v. State, 28 
 Benefit Ass'n v. Sargent, 142 U. S. Fla. 511; Tourtalotte v. Brown, 1 
 190 ; McNeal v. Pittsburg, etc. Ry. Colo. App. 408. 
 Co., 131 Pa. St 184; Walter v, Hoeff- 
 45 
 
rOG EULES OF EVIDENCE. 
 
 making the witness his own.^ A different rule would enable 
 a party to develop his defense untrammeled by the rules which 
 govern a direct examination, and give him an advantage for 
 which we can see no just reason. As to new matter the wit- 
 ness becomes his own, and in substance and effect the cross- 
 examination ceases. That is properly such only while it is 
 directed to the evidence given on behalf of the adversary. 
 "When it passes beyond that it becomes the direct and affirm- 
 ative, evidence of the party and should be subjected to the 
 appropriate restraints.^ It is somewhat in the discretion of 
 the trial judge to admit or exclude such examination. The 
 orderly conduct of the trial may, in his opinion, require that 
 the evidence for the plaintiff should be first concluded before 
 the defense is introduced, or matter in support of the defense. 
 His decision, if made on that ground, cannot be reviewed.' 
 
 §6. Cross-examination as to credit. — A witness maybe 
 cross-examined not only as to the relevant facts, but also as to 
 all facts which reasonably tend to affect the credibility of his 
 testimony. This is generally spoken of as cross-examination 
 as to credit, inasmuch as a large part, at any rate, of the facts 
 which are relied on for this purpose are facts which touch the 
 credit and good fame of the witness. A witness will be re- 
 quired on cross-examination to answer any questions, however 
 disgracing, to test and characterize his veracity or general 
 credibility.* Thus, in cross-examining his opponent's witnesses 
 
 1 People ex rel. Phelps v. Oyer & 521 ; Conger v. Galena, etc, R Co., 17 
 Terminer, 83 N. Y. 436 ; Harrison v. Wis. 477 ; Detroit, etc. E. Co. v. Van 
 Rowan, 3 Wash. C. C. 580 ; Ellmaker Steinberg, 17 Mich. 99 -, Toole v. 
 V. Buckley, 16 Serg. & R 77; Phil. & Nichol, 48 Ala. 406, 419; Drohn v. 
 T. R R Co. V. Stimpson, 14 Pet 448 ; Brewer, 77 111. 280 ; Brown v. State, 
 Custer v. Bavington. 2 Watts & Serg. 28 Ga. 199 ; Woodbury v. District, 5 
 505 ; Floyd v. Howard, 6 id. 75 ; Jack- Mackey, 127 ; Hanks v. Rhoads, 128 
 son V. Son, 2 Caines, 178 ; People v. HI. 404 ; Krager v. Pierce, 73 Iowa, 
 Moore, 15 Wend. 419. 859 ; Lawdler v. Henderson, 36 Kan. 
 
 2 Philadelphia, etc. R R Co. v. 754 ; Lamb v. Ward, 18 Q. B. U. C. 
 Stimpson, 14 Pet. 448, 461 ; Houghton 304; Neil v. Thorn, 88 N. Y. 270; 
 V. Jones, 1 Wall. 702 ; Donnelly v. Hartness v. Boyd, 5 Wend. 563 ; Ker- 
 State, 26 N. J. L, 463, 494; Johnson ker v. Carter, 1 Hill, 101. 
 
 V. Wiley, 74 Ind. 233; Buckley v. 3 Bedell v. Powell, 15 Barb. 183; 
 
 Buckley, 14 Nev. 262 ; Fulton v. Bank, Allen v. Bodine, 6 id. 383 ; Fry v. 
 
 92 Pa. St. 112; Bell v. Chambers, 38 Bennett, 3 Bosw. 200 ; Davis v. United 
 
 Ala. 660 ; Chicago, etc. R Co. v. Coal States, 165 U. S. 373 ; Re Jack's Es- 
 
 Co., 36 111. 60, 64; Thornton v. Hook, tate, 115 Cal. S03. 
 
 36 Cal. 223; Wilhemi v. Leonard, 18 « State v. Johnson, 48 La. Ann. 437; 
 
 Iowa, 330 ; Sumner v. Blair, 9 Kan. Neal v. Neal, 58 Cal. 387 ; Wiber v. 
 
PEAOTIOE IN ADMISSION AND EEJECTION OF ETIDENCE. YOY 
 
 to their credit a party is not confined to the relevant facts. He 
 may cross-examine as to matters and conduct disconnected with 
 the action, and as to statements made by the witness to others 
 or by others to him or in his hearing; in short, as to any facts 
 whatsoever, provided always that they have a reasonable bear- 
 ing on the credibility of the witness in the proceeding in which 
 he has been called to give evidence. The witness may be cross- 
 examined also as to the contents of documents which are not 
 produced and shown to him, though it seems that he is not 
 compellable to answer such questions, and may demand that 
 the documents shall be first produced and shown to him.^ But 
 this rule is perhaps somewhat misleading, as suggesting that 
 any cross-examination is permissible which tends in any way 
 whatever to disparage the character of the witness, whereas 
 no such cross-examination can be legitimate unless it has some 
 reasonable bearing on his credibility. For instance, in an ac- 
 tion for goods sold and delivered, where the defendant imputes 
 to the plaintiff some dishonest trick or overcharge, it would 
 not ordinarily be legitimate for the defendant to cross-examine 
 the plaintiff to show that he is not married to the woman with 
 whom he lives and who passes as his wife, since that fact, taken 
 by itself, has no bearing on his honesty in trade ; nor to cross- 
 examine him to show that twenty years ago he was convicted 
 when a school-boy for stealing apples, since that, if it stands 
 alone, is too remote to be taken into consideration by any fair 
 man in judging of his honesty now.^ On the other hand, re- 
 cent acts of dishonesty or untruthfulness in business matters, 
 or a series of such acts committed at intervals extending over 
 a considerable period, would generally be fair subjects of cross- 
 examination. But it is within the discretion of the court to 
 refuse to permit questions which tend to disgrace rather than 
 discredit.' Thus, a witness cannot be impeached by showing 
 
 Flood, 16 Mich. 40 ; Muller v. St. Louis i Henman v. Lester, 31 L. J. C. P. 
 
 Hosp. Ass'n, 73 Mo. 843 ; Com. v. Cur- 366 ; Hart v. Atlas Knitting Co., 45 
 
 tis, 97 Mass. 574; Real v. People, 43 U. a App. 338; Tonini v. Cavasco, 
 
 N. Y. 370; State v. O'Brien, 81 Iowa, 114 Cal. 366; Lynch v. Free, 64 Minn. 
 
 93; Goonbow v. People, 160 111. 438; 377. 
 
 Howser v. Com., 51 Pa. St 333; New- 2 State v. Glein, 31 L. R. A. 394, 17 
 
 comb V. Griswold, 34 N. Y. 298 ; Cora. Mont. 17. 
 
 T. Bonner, 97 Mass. 587 ; Clemens v. 3 Wroe v. State, 20 Ohio St. 460, 471 ; 
 
 Conrad, 19 Mich. 170. State v. Garland, 95 N. C. 671 ; Smith 
 
708 EULES OF EVIDENCE. 
 
 lack of religious belief.' The right to cross-examine as to credit 
 is subject to this rule : that upon facts of this description, with 
 a few exceptions, the answers of the witness are conclusive in 
 this sense, that they cannot be contradicted by evidence in chief 
 on the other side.^ However untrue they may be, they cannot 
 be treated as if they were an issue in the case. The only ex- 
 ceptions to this rule are these : that by the common law a 
 partv may give evidence in chief, after due cross-examination 
 of his opponent and his witnesses, to show that they are notori- 
 ous liars, or have given their testimon}'' from corrupt or indi- 
 rect motives, or that they have made previous inconsistent 
 statements with regard to the relevant facts.' 
 
 It is now an elementary rule that a witness may be specially 
 interrogated upon cross-examination in regard to any vicious 
 or criminal act of his life, and may be compelled to answer 
 unless he claims his privilege. A party who offers himself as 
 a witness in a criminal cause is not exempt from the operation 
 of the rule. He is not compelled to testify, and if not ex- 
 amined the law provides that it shall not give rise to any pre- 
 sumption against him. "When he elects to become a witness, 
 it is for all the purposes for which a witness may be lawfull}' 
 examined in the case, and he is not, in the constitutional sense, 
 " compelled to be a witness against himself," although, when 
 subjected to the test of a legitimate cross-examination, he may 
 be required to make disclosures which tend to discredit or to 
 incriminate him.* The hostility of a witness towards a party 
 against whom he is called may be proven by any competent 
 evidence. It may be shown b}', cross-examination of the wit- 
 ness, or witnesses may be called who can swear to facts show- 
 ing it.^ The same rule must prevail where the relations of the 
 witness and the party who produces him are more intimate 
 and friendly than those which ordinarily exist in social or busi- 
 ness intercourse. This kind of evidence is especially valuable 
 in criminal prosecutions ; for there are no cases in which party 
 
 V. Castlea, 1 Gray, 108 ; Re Leww, 39 People v. Roemer, 114 Cal. 51 ; Stos- 
 
 How. Pr. (N. Y.) 155 ; Harpers v. In- sel v. Van de Vanter, 16 Wash. 9. 
 
 dianapolis, etc. R. R. Co., 47 Mo. 567. 3 State v. Pancoast, 5 N. D. 514 ; Peo- 
 
 1 People V. Capsey, 71 Cal. 548. pie v. Mayes, 113 Cal. 618 ; Agnew v. 
 
 2 Baker v. Baker, 32 L. J., P. D. & A. United States, 165 U. S. 36. 
 145; State v. McCann, 16 Wash. 249; < People v. Tice, 131 N. Y. 657. 
 
 sGarnsey v. Rhodes, 138 N. Y. 461. 
 
PKAOTICE IN ADMISSION AND REJECTION OF EVIDENCE. 709 
 
 sympathy, personal friendship or family affection operate, as 
 a rule, so effectively as where life and liberty are at stake. In 
 such cases, while there is, as a general rule, no exclusion on ac- 
 count of bias, however strong, bias is always of importance in 
 determining credibility.' Nor is this exclusively on the ground 
 that bias prompts perjury. So it may sometimes do ; but cases 
 of this class are rare, while cases in which bias leads to uncon- 
 scious perversion of facts are frequent. For these reasons in- 
 terest and party or social sympathy may be always shown in 
 order to discredit a witness, and the same observation may be 
 made as to near relationship.^ In Garnsey v. Rhodes^ it was 
 held reversible error for the court to refuse to allow a party 
 to show that a witness was unfriendly to the parties against 
 whom he was called to testify. The same was held in Salni 
 V. State.* But in State v. Jarvis* it is said that evidence of 
 witness' declarations to show bias cannot be regarded as evi- 
 dence in support of the facts in issue. In State v. Turlington ' 
 it was held competent for the state upon a trial for murder to 
 introduce a letter written by witness to the defendant in order 
 to show that the witness sympathized with him ; and in State 
 V. McFarlain ' it was held to be error not to permit the defend- 
 ant to question a state witness as to his peculiar acts of hostil- 
 ity against him.' An admission of hostility by a witness does 
 not preclude his cross-examination as to the extent of the ill- 
 feeling and the character of such prejudice ; ' but the court 
 may limit such cross-examination.'" Many courts maintain the 
 rule that direct examination, even for formal proof, opens up 
 the whole case to cross-examination." 
 
 § 7. Opening door for cross-examination. — Upon the trial 
 in Winchell v. Latham,'^ one Hyde was called for defendant and 
 
 iHarlis v. Maloy, 67 Conn. 369; 537; Ryan v. State, 97 Tenn. 206; 
 
 Peterson v. Kate, 83 Md. 194. Eoop v. State, id. 101, 35 L. R A. 556. 
 
 2Peoplev. Webster, 139 N. Y. 73. lOffinchcliffe v. Koontz, 121 Ind. 
 
 3 138 N. Y. 461. 432 ; State v. Hayward, 62 Minn. 474. 
 
 * 89 Ala. 56. n Moody v. Eowell, 17 Pick. 490, 498 ; 
 
 5 18 Oreg. 360. Fulton Bank v. Stafford, 3 Wend. 483 ; 
 
 6 103 Mo. 643. Linsley v. Lovely, 26 Vt. 123 ; Fralick 
 
 '41 La. Ann. 686. v. Presley, 39 Ala. 457; Com. v. Mor- 
 
 8 People V. Thompson, 93 Cal. 506 ; gan, 107 Mass. 199, 204 ; Mask v. State, 
 People V. Gillis, 97 id. 543. 33 Miss. 405, 427 ; State v. Sayers, 58 
 
 9 Stewart v. Kindel, 15 Colo. 539 ; Mo, 585 ; Haynes v. Ledyard, 33 Mo. 
 Tla-Koo-Yel-Lee v. United States, 167 319. 
 
 U. S. 374 ; State v. McDonald, 57 Kan. 12 e Cow. 683. 
 
710 EULES OF EVIDENCE. 
 
 stated that in !N'ovember, 1823, the plaintiff showed him a note, 
 upon the back of which was written " Oliver Porter's note, for 
 $2,100," etc. Upon cross-examination he was asked if he had 
 ever told anybody that he had seen such a note or that the 
 plaintiff had such a note, and, if he had, when and whom. The 
 witness answered that the first person to whom he mentioned 
 it was Porter, the testator. The counsel for the defendant 
 then asked the witness what Porter said about the larger note 
 when he gave him the information. The answer to this ques- 
 tion was excluded. Upon this question the court said : " The 
 witness was not asked whether he had ever informed Porter 
 that he had seen the note. But the question was general, — if 
 he informed anybody, and whom. If the plaintiff had asked 
 specifically whether the witness ever communicated the infor- 
 mation in relation to the note to Porter, what Porter said on 
 that occasion would probably have been competent evidence ; 
 for the inquiry could have been made with no other view than 
 to raise the presumption of his*admission of the genuineness 
 and validity of the note; and that presumption the opposite 
 party ought to be permitted to repel. The question would be 
 considered as embracing not only the information communi- 
 cated by the witness Porter, but Porter's answer also, and the 
 answer would then be evidence against the plaintiff, having 
 been called for by him. But there would be no safety in put- 
 ting a general question to a witness upon the cross-examina- 
 tion if his answers might be the means of rendering the decla- 
 rations of the opposite party evidence in his favor without 
 being called for by his antagonist." There is a limit to the 
 extent to which a party may go in calling out what was said 
 by and to him in a conversation, part of which the other party 
 has proven.^ The rule is this : that where part of the conver- 
 sation has been given in evidence, any other or further part 
 of that conversation may be given in evidence in reply, which 
 would in any way qualify or explain the part first given. ^ 
 
 § 8. As to previous statements in writing. — It was settled 
 in the Queen's Case^ that when, upon cross-examination, a wit- 
 
 1 Marks v. King, 64 N. Y. 628; v. State, 111 Ala. 68; Vaughn v. Mc- 
 Rouse V. Whited, 35 N. Y. 170 ; Prince Carthy, 63 Minn. 331 ; State v. Dill, 
 V. Samo, 7 Ad. & Ell. 627. 48 S. C. 249. 
 
 2 Garey v. Nicholson, 34 Wend. 350 ; s 2 b. & B. 393 (6 E. C. L.). 
 Thalheim v. State, 38 Fla. 169 ; Bracken 
 
PEACTIOE IN ADMISSION AND EEJECTION OF EVIDENCE. 711 
 
 ness is asked whether or not he has made any previous state- 
 ments, the opposing party may interfere and ask whether the 
 representation referred to was in writing or verbal. If it ap- 
 pear to be in writing, then the writing itself must, if possible, 
 be produced in order to show its contents, and they cannot be 
 got from the witness under cross-examination. But if for any 
 valid reason the writing cannot be produced, then the usual 
 principles on which secondary evidence is admissible will appl v, 
 and the contents of the document may be proved by the ad- 
 mission of the witness. And a witness under cross-examina- 
 tion may not be questioned as to previous statements made by 
 him in writing, or reduced to writing, relative to the subject- 
 matter of the cause, without such writing being shown to him 
 or its non-production satisfactorily accounted for, and notice 
 being given him of its cpntents.^ 
 
 It is as necessary that a foundation should be laid for the 
 introduction of written contradictor}'^ statements of a witness 
 as it is where the statements are made orally, and in such case 
 the opposing party is entitled to examine the witness as to its 
 contents for the purpose of laying a foundation for its intro- 
 duction.^ If a witness admits his signature subscribed to a 
 paper, it is proper, as against a general objection, to allow a 
 particular part to be read to him and to require him to answer 
 whether it is correct. The objection that the whole paper 
 should be read as the best evidence of its contents should be 
 specifically made. "Where a witness is examined at the trial 
 after having been examined before the trial, it is not proper in 
 cross-examination to read to the witness answers given in the 
 deposition and ask him if he so testified ; if such testimony is 
 used to impeach the witness it should be read to the jury.' It 
 is held that in cross-examining a witness counsel may read a 
 statement previously made by the witness in writing, asking 
 
 1 Callahan v. Shaw, 34 Iowa, 441 ; 3 Arnold v. Allen, 9 Daly (N. Y.), 
 Cafneyv. People, SON. Y. 416; New- 198; Birchall v. Bullough (1896), 1 
 comb V. Griswold, 24 N. Y. State Rep. Q. B. 335 ; Spring v. South Bound R. 
 298 ; Lange v. Schoettler, 115 Cal. 388 ; Co., 46 S. C. 104 ; State v. Foley, 130 
 State V. Lowry, 43 W. Va. 205 ; Nor- Mo. 482 ; People v. Hoch, 150 N. Y. 
 folk Nat. Bank v. Job, 48 Neb. 774. 391 ; Bradford v. People, 33 Cal. 157; 
 
 2 Chicago, etc. Ey. Co. v. Artery, State v. Sharp, 133 Mo. 165. 
 137 U. S. 507; Putnam v. United 
 
 States, 103 id. 687. 
 
712 EDLES OF EVIDENCE. 
 
 him whether he made such statements ; and the fact that he 
 showed the paper to the witness before so doing, and the wit- 
 ness admitted his signature, does not necessarily entitle the 
 party who called the witness to read the other statements con- 
 tained in the writing. It is not at all necessary, in order to 
 frame a perfect question, that a party should show the witness 
 the examination or read from any portion of it ; but if he chooses 
 to put the question, using the examination for the purpose of 
 framing the question, the examiner has a right to do so. He 
 is not reading the examination in evidence or any part of it. 
 He is only asking the witness whether on a previous occasion, 
 in connection with this transaction, he had not stated certain 
 things.^ Eomertze v. East Eiver JSTational Bank ^ is the lead- 
 ing case on this subject in the state of New York. In that 
 case the deposition of one ITewell, cashier of the defendant, had 
 been taken before trial. Upon the trial JSTewell gave testi- 
 mony in favor of the defendant. On cross-examination his 
 deposition was shown him, and he testified : " That is my sig- 
 nature. The deposition was read over to me before I signed 
 it." After defendant rested, plaintiff offered to read in evi- 
 dence the testimony of Newell, taken before the trial, for the 
 purpose of impeachment by contradictory statements. This 
 was objected to by the defendant upon the ground that the 
 proper foundation had not been laid for reading the deposition 
 for the purpose of contradicting the witness. This objection . 
 was sustained. On appeal to the court of appeals the court 
 say: "We think the court erred in rejecting the deposition. 
 The paper was shown to the witness; he verified the signa- 
 ture, and stated that it was read over to him before he signed 
 it. It is to be presumed that he understood it. It was not 
 competent to repeat the particular sentences and ask if he tes- 
 tified to them, because the paper was the best evidence of what 
 it contained. It was not incumbent upon plaintiff's counsel to 
 ask for explanations nor to introduce the paper at that time." 
 The rule in some jurisdictions is that the witness' attention 
 must be directed to the statements in th6 writing and he must 
 
 1 Kosmaok v. Mayor, etc. of New Wood v. State, id. 58 ; People v. Van 
 
 York, 117 N. Y. 361. Eman, 111 Cal. 144; People v. Ryan, 
 
 249 N. Y. 577; Pelley v. Wills, 141 108 id. 581 ; Ballew v. United States, 
 
 Ind, 688 ; Dixon v. State, 46 Neb. 298 ; 160 U. S. 187. 
 
PEACTICE IN ADMISSION AND EEJEOTION OF EVIDENCE. 713 
 
 have an opportunity to explain.^ But in Doud v. Donnelly ^ 
 it is said that the rule is different, and that it is not necessarj'- 
 to call a witness' attention to his contradictory statements in 
 writing before they can be proved to impeach him.' 
 
 § 9. Ee-examination. — A re-examination, whicli is allowed 
 only for the purpose of explaining facts which may come out 
 on cross-examination, must of course be confined to the sub- 
 ject-matter of the cross-examination.* The re-examination 
 of a witness is not to extend to any new matter unconnected 
 with the cross-examination, and which might have been in- 
 quired into on the examination in chief. If new matter is 
 wanted, the usual course' is to ask the judge to make the in- 
 quiry. In such cases he will exercise his discretion and deter- 
 mine how the inquiry, if necessary, may be most conveniently 
 made, whether by himself or by the counsel.' I think the 
 counsel has a right on re-examination to ask all questions 
 which may be proper to draw out an explanation of the sense 
 and meaning of the expressions used by the witness on cross- 
 examination if they be themselves doubtful, and also of the 
 motive by which the witness was induced to use those expres- 
 sions ; but he has no right to go farther and introduce matter 
 new in itself and not suited to the purpose of explaining either 
 the expressions or motives of the witness. I distinguish be- 
 tween a conversation which a witness may have had with a 
 party to a suit, whether criminal or civil, and a conversation 
 with a third person. The conversations of a party to a suit, 
 relative to the subject-matter of the suit, are in themselves evi- 
 dence against him in the suit ; and if a counsel chooses to ask 
 a witness as to anything which may have been said by an ad- 
 verse party, the counsel for that party has a right to lay before 
 the court all that was said by his client in the same conversa- 
 
 1 Hammond v. Dike, 43 Minn. 273; *1 Stark. Ev. 179; Carlson v. Win- 
 
 Sooper V. State, 90 Ala. 641 ; State V. terson, 147 N. Y. 653; Agnew v. 
 
 Callegari, 41 La. Ann. 578. United States, 165 U. S. 36. 
 
 235 N. Y. State Rep. 834; Driggers n Phil. Ev. 840; Kennelly v. Sav- 
 
 T. State, 38 Fla. 7; White v. State, 111 age, 18 Mont. 119; Stewart v. Smith, 
 
 Ala. 92 ; Eagan v. Dry Dock, E. B. & 92 Wis. 76 ; Carlson v. Winterson, 147 
 
 B. R. Co., 12 App. Div. 556; State v. N. Y. 652; People v. Van Eman, 111 
 
 Smith, 57 Kan. 673. Cal. 144 : Collins v. State, 46 Neb. 37 ; 
 
 3 Dooley v. Miller, 2 Tex. Civ. App. Ballew v. United States, 160 U. S. 1 87 ; 
 
 132 ; Western Ins. Co. v. Broughton, Dennehy v. O'Connell, 66 Conn. 175. 
 136 111. 317. 
 
71i KULES OF E\^IDBNCE. 
 
 tion ; not only so much as may explain or qualify the matter 
 introduced by 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.^ 
 
 § 10. Kecross examination. — The recross examination stands 
 in the same relation to the redirect that the cross-examination 
 does to the direct.^ A witness is always permitted to correct 
 a statement.' And while a party is bound in the re-examina- 
 tion of his own witness still to observe, as in his examination 
 in chief, the rules which prohibit leading questions and questions 
 as to the issue itself, he is entitled to ask him all questions 
 necessary to draw forth an explanation of the full meaning of 
 expressions used by him in cross-examination, if they are in 
 themselves doubtful, and also of the motive by which he was 
 induced to make use of them.* Proof in cross-examination of 
 a detached statement made by the party at a former time does- 
 not authorize re-examination as to all that he said at the same 
 time, but only of so much as can be in some way connected 
 with the statement proved.^ Whether the witness is a party 
 to a proceeding or not, his recross examination as to previous 
 statements as to which he was re-examined is governed by a 
 like rule to that already mentioned — that a party against whom 
 an admission is given in evidence is entitled to have the whole 
 of it presented to the jury and not merely a part. The ex- 
 planations of the witness in re-examination may of course re- 
 late not only to statements made in cross-examination as to the 
 relevant facts, but also to those affecting the witness' credit ; 
 as, for instance, to show what provocation he had received for 
 making use of a vindictive expression which he has admitted 
 having uttered.^ 
 
 1 Cora. V. Bishop, 165 Mass. 148. phenson, 91 Hun, 613 ; Hopkins v. 
 
 2 Wood V. McGuire, 17 Ga. 303, 318 ; Clark, 90 Hun, 4; Maxwell v. BoUes, 28 
 Thornton v. Thornton, 39 Vt. 133 ; Oreg. 1 ; Todd v. Vaughn, 90 Hun, 70. 
 Com. V. Nickorson,5 Allen,518; State « Queen's Case, 2 B. & B. 296, 297; 
 
 V. Hoppiss, 5 Ired. (N. C.) L. 406 
 Coker v. Hayes, 16 Fla. 368, 377 
 Wilkes V. Heaton, 17 Q. B. U. C. 95 
 
 State V. Hayward, 63 Minn. 474 ; Peo- 
 ple V. Mayes, 113 Cal. 618; Holly v. 
 Com., 18 Ky. L. Rep. 441 : Peterson v. 
 
 People V. Keith, 50 Cal. 137; Koenig State, 83 Md. 194; Vermont Farm 
 
 V. Bauer, 57 Pa. St. 168. Mach. Co. v. Batchelder, 68 "Vt 430. 
 
 3 State V. Mays, 34 S. C. 190 ; Brown 5 Pj-ince v. Same, 7 A. & E. 637. 
 V. Horse, 3 App. Div. 357; State v. 6 R v. St. George, 9 C. & P. 483, 488 ; 
 
 Harvey, 131 Mo. 339 ; People v. Ste- State v. Jones, 47 La, Ann. 1534 ; Ball 
 
PEACTICE IN ADMISSION AND EEJECTION OF EVIDENCE. 715 
 
 § 11. Whole writing — Limit of rule as to.— The rule is 
 that a party in whose behalf portions of a writing or the rec- 
 ord of legal proceedings are admissible need not introduce the 
 whole record. It is for the other party to introduce such other 
 parts as relate to the same subject ;i and a portion of a letter 
 between parties, though not relating to the same subject as the 
 portion introduced by the adverse party, may be introduced 
 by the writer when of a nature to elicit a reply and none was 
 made.^ So the introduction in evidence by one party of the 
 findings in another suit between them renders admissible the 
 other findings in such suit in behalf of the other party.^ 
 
 §12. Papers made- at diiferent times. — An instrument of- 
 fered to establish a defeasance entered into subsequently to a 
 deed, and not in pursuance of the original agreement made at 
 or before its execution and delivery, cannot be read with the 
 deed. But it is not essential that they should have been re- 
 duced to writing at the same time or bear the same date.* It 
 is suflicient if they constitute part of the same transaction. 
 "While the recording of a deed raises the presumption that it 
 had been delivered at or before the time that it was put on rec- 
 ord, it is not conclusive, and may be overborne hy evidence 
 that it had not been delivered, and was not until a later period.* 
 
 11. OBJECTIONS TO EVIDENCE. 
 
 §13. In general. — Mr. Austin Abbott says: "The expe- 
 rience of the bar shows that in judicial investigation it is 
 just as important to have the right kind of light, and from 
 the right quarter, and to exclude all others, as in microscopic 
 investigations. The best light from the best quarter is the 
 condition for securing both truth and clearness of truth; hence 
 
 V. United States, 163 U. S. 663 : Beuer- Dutcher v. Howard, 15 Wash. 693 ; 
 
 lien V. O'Le'ary, 149 N. Y. 33; State Reynolds v. Great Northern R Co., 
 
 V. Pain, 48 La. Ann. 311. 29 L. R. A. 695, 33 V. S. App. 577. 
 
 1 King V. State, 91 Tenn. 617 ; Priest * Harrison v. Trustees, etc., 12 Mass. 
 
 V. Glenn, 51 Fed. Rep. 400. . 456 ; Lund v. Lund, 1 N. H. 39, 3 
 
 2Fleischmann v. Toplits, 134 N. Y. Wash. R P. (5th ed.) 56. 
 
 349, 47 N. Y. State Rep. 893, 46 Alb. » Kraemer v. Adelsberger et al., 132 
 
 L. J. 470. N. Y. 467, 34 N. Y. State Rep. 24; 
 
 3 Sheahan v. National Steamship Hooper v. Becli, 83 Md. 647 ; State v. 
 
 Co., 66 Hun, 48, 49 N. Y. State Rep. Steeves, 29 Oreg. 85 ; Orr v. Farmers' 
 
 484; Medlin v. Wilkins, 1 Tex. Cr. Alliance, W. H. & C. Co., 97 Ga. 241. 
 App. 465; Drake v. State, 110 Ala. 9; 
 
716 ' ETTLES OF EVIDENCE. 
 
 a considerable part of the rules ojf evidence consists of dis- 
 criminating against kinds of evidence unfit to be laid before 
 a jury, who are sworn to decide according to the evidence laid 
 before them. Another part of the rules of evidence consists 
 of exceptions to those exclusory rules which experience has 
 found may safely be allowed." Judges sitting at trial court 
 with a jury are not allowed to become enlisted in calling out 
 evidence on either side; but, with the slight exception of 
 calling out explanations, they are confined to listening to the 
 controversy as presented by the, parties on each side. If the 
 judge assumes to determine a question of credibility or weight 
 he usurps the function of the jury, and the verdict will not 
 stand. If the judge leaves it to the jury to determine a ques- 
 tion of competency, he is abdicating his power, and the verdict 
 will not stand. ' To state the distinction more closely, the judge 
 decides all questions of law, except libel or no libel in a crim- 
 inal prosecution. He also decides all questions of competency 
 and regularity in the reception of evidence, and all questions 
 of fact incidental thereto, and finally he decides whether the 
 evidence is such as to make a question of fact suitable for the 
 jury. During the reception of evidence at a trial the func- 
 tion of the judge in respect to the evidence is simply to decidB 
 this question, viz. : Is this evidence now offered fit to be laid 
 before the jury? This question, whether offered evidence 
 should be received, has two aspects, viz. : Do the pleadings 
 lay a foundation for it ; that is to say, is the fact which it is 
 proposed to prove relevant to the controversy the court is to 
 trjr, or is the mode in which it is proposed to prove the fact a 
 legal mode. Neither of these words, " admissible," " relevant," 
 or "competent," is usually sufficient in stating an objection to 
 evidence ; but the objection must usually be so expressed as to 
 indicate the particular ground on which the objector deems 
 that the evidence offered is inadmissible, irrelevant or incom- 
 petent. Where a preliminary question — as where alleged part- 
 ners are sued and the partnership. is denied, and it is proposed 
 to give in evidence against both a declaration or admission 
 made by one of the alleged firm — is identical with one of the 
 questions at issue which the jury will have to decide in reach- 
 ing a verdict, the proper practice is for the judge to take the 
 evidence and submit it to the jury with proper instructions. 
 
PKACTICE IN ADMISSION AND EEJECTION OF EVIDENCE. , 717 
 
 He only decides whether evidence enough to justify the jury 
 in deciding whether a partnership exists has been given, and if 
 so he receives the evidence provisionally, to be acted upon or 
 not by the jury, according to their decision of the question on 
 which its competency depends. 
 
 § 14. When general objection sufficient.— A general objec- 
 tion to the admissibility of a fact in evidence is sufficient where 
 the fact offered is wholly incompetent and its incompetency 
 cannot be obviated by other evidence. "When the mode by 
 which the fact is offered to be established is prima facie in- 
 competent under the general rules of evidence, and attention is 
 called by an objection to the reason why the mode is illegal, it 
 is sufficient.' When expert evidence is offered where expert 
 evidence is not competent, the objection should be made that 
 the question is "not within the competency of the witness 
 and is not within the competency of any witness," or that 
 " the question is not within the competency of this expert or 
 any expert," or that it is hypothetical, speculative and incom- 
 petent.^ While it seems that a witness is incompetent to 
 testify as to what would be the value of property if certain 
 things did not exist, in order to make such witness incompe- 
 tent to so testify it must be specifically objected that the 
 opinion of the witness is inadmissible on the subject. Such 
 evidence should not be excluded on the ground that it is im- 
 material or incompetent or that the question is hypothetical. 
 But in such case an objection that it is speculative and not 
 the proper method of proving damages is sufficient.' The 
 proper objection would be that the question calls for what 
 the judge is to determine on the other testimony.* 
 
 § 15. When the objection must assign the particular 
 ground. — Legal effect must be given to incompetent evidence 
 which is admitted without objection.* Thus, hearsay testi- 
 mony not objected to in any way, and not made the subject of 
 
 •Lahey v. Oltman & Co., 73 Hun, * Roosevelt v. New York EI. R. Co., 
 
 61, 56 N. Y. State Rep. 108. 57 N. Y. Super. Ct 438, 29 N. Y. 
 
 2 Jefferson v. New York EL R. Co., State Rep. 266 ; McGean v. Manhat- 
 132 N. Y. 483, 44 N. Y. State Rep. 629. tan R Co., 117 N. Y. 219, 27 N. Y. 
 
 3 Pratt V. N. Y. C. & H. R. R Co., State Rep. 338. 
 
 59 N. Y. State Rep. 38, 77 Hun, 139 ; 5 Austin v. Southworth, 68 N. Y. 
 Hunter v. Manhattan R. R. Co., 141 State Rep. 91. 
 N. Y. 281. 
 
718 EULES OF EVIDENCE. 
 
 a motion to strike out, is some proof of the facts to which it 
 relates.^ An objection to a question which fails to assign any- 
 ground for the exclusion of the testimony called for is not 
 good, unless the question is wholly improper or the testimony 
 it calls for wholly inadmissible. The reason for the rule is 
 that, if the ground had been stated, the form of the question 
 might have been changed, or the counsel might have conceded 
 the incompetency of the evidence and have withdrawn the 
 question.'^ The office of an objection is to stop an answer, but 
 the remedy, if an improper answer is given, is by a motion to 
 strike out, or by a request for instructions to the jury that 
 they disregard it. 
 
 § 16. One objection to same class of evidence sufficient. — 
 When upon a trial an objection has once been distinctly made 
 and overruled it need not be repeated to the same class of evi- 
 dence. The rule in such cases has been laid down and should 
 be observed in the further progress of the trial, without fur- 
 ther vexing the court with useless objections and exceptions. 
 Nothing is waived by conforming to the rule laid down in 
 Dilleber v. Home Life Ins. Co.' Where a general objection to 
 proof offered is sustained, error will not lie if any true ground 
 of objection exists. But if the proof is objectionable simply 
 upon a ground which might be obviated if specified, and such 
 objection is not made, while others not tenable are stated, the 
 former will be deemed to have been waived.* 
 
 § 17. Answer irresponsive in part — Remedy of opposite 
 party. — When the question put to a witness in itself calls for 
 nothing but testimony which is proper, but in the course of 
 the answer improper matter is added or intermingled with it, 
 the remedy of the opposite party is by motion to strike out 
 whatever appears to be improper or irresponsive to the in- 
 quiry.' When in such a case the party against whom the testi- 
 mony was given omits at the trial to insist upon his right to 
 have what is incompetent separated from what is competent 
 
 1 Persse v. Atlantic-Pacific E. Tun- 3 69 N. Y. 256 ; Carlson v. Winter- 
 nel Co., 5 Colo. App. 117. son, 147 id. 652. 
 
 2 Turner v. City of Newburg, 109 < Height v. People, 50 N. Y. 392. 
 
 N. Y. 301, 15 N. Y. State Rep. 93; ^Denise v. Denise, 18 N. Y. State 
 Payne v. South Springfield, 161 111. Rep. 878, 110 N. Y. 562; Bronner v. 
 285. Frauenthal, 37 id. 166; Bardin v. 
 
 Stevenson, 75 id. 164 
 
PEACTIOE IN ADMISSION AND EEJECTION OF EVIDENCE. 719 
 
 and the former excluded, he cannot, upon appeal, select such 
 parts of the testimony as may appear to be improper, but were 
 not necessarily called for by the question, and ask the court to 
 reverse on sitch grounds.^ In Lansing v. Goley ^ a commission 
 was issued to examine a witness who had been a partner with 
 the plaintiff, and in answer to an interrogatory asking him when 
 the partnership was dissolved, and under what circumstances, 
 the witness answered : " There has never been any regular dis- 
 solution papers drawn up except when I got into trouble, and 
 then the plaintiff brought me a paper to sign so it could be 
 published that we had dissolved partnership." Upon the trial, 
 upon objection by the plaintiff, this answer or the latter part 
 of it was excluded. In that case the court say : " The excluded 
 part of the answer is plainly . . . not responsive to the 
 interrogatory, but the defendant says that the party putting 
 the qiiestion is the only one who can object to the answer on 
 that ground. That is to say, a party who knows that he has 
 a willing witness can shape his interrogatory, and after an- 
 swering what is asked the witness can volunteer an entirely 
 distinct piece of evidence, not even hinted at in the question, 
 and the party to be injured by it is not at liberty to object to 
 the evidence so impertinently put in. The claim is too bald 
 to be entertained for a moment." Upon the trial of a case it 
 rests in the discretion of the court to require of the counsel to 
 state the substance of the evidence about to be offered by him. 
 But in the sound exercise of this discretion courts should al- 
 ways listen to reasons offered for not making a full disclosure 
 before the examination and give them their due weight. Many 
 times it is inadvisable to apprise the witness about to be exam- 
 ined of the facts expected to be proved.' 
 
 § 18. Questions by co-defendant.— Though improper evi- 
 dence is offered generally in the case by a co-defendant and 
 not by the plaintiff, the appellant's objection to its introduc- 
 tion is available against the plaintiff. The plaintiff's position 
 is like that of a party when a trial judge asks of a witness an 
 improper question which is objected to, and the objection is 
 overruled and an exception taken.* 
 
 1 Holmes v. Roper et al., 141 N. Y. 3 Roy v. Targee, 7 Wend. 359. 
 64, 56 N. Y. State Rep. 596. * Mt Adams & E. P. Inclined E. Co. 
 
 2 13 Abb. Pr. (N. Y.) 373. v. Lowery, 43 U. S. App. 408, 74 Fed. 
 
720 EULES OF EVIDENCE. 
 
 §19. Direction to disregard evidence.— Where the court 
 instructs the jury to disregard testimony and there is other 
 evidence to support the verdict, it will be presumed that the 
 instructions were obeyed and the error in its omission cured.' 
 In Holmes v. Moffat Hhe testimony of witnesses, including 
 irrelevant statements, was read upon the trial before the ob- 
 jection was made. Counsel promptly moved to strike it out 
 and the motion was denied. On subsequent reflection the 
 court dh-ected the jury to disregard the matter specified, and 
 that said matter was not before them at all. In that case it 
 was held that such instruction cured any error in refusing to 
 strike out. 
 
 § 20. When motion to strike out comes too late.^ Evi- 
 dence admitted either without objection or properly on an 
 objection, which for any reason should not be considered by 
 the jury or affect the result, is not necessarily to be stricken 
 out, but may be retained in the discretion of the court; the 
 remedy of the party being to ask for instructions to the jury 
 to disregard it. The oflice of an objection is to stop an an- 
 swer. When the question is improper and has been put, and 
 the witness answers that with proper and responsive matter, 
 and of his own motion adds something else irrelevant, an ob- 
 jection does not check it. The improper part of the answer is 
 to be met and its effect taken away by motion to strike out 
 or request for instruction to the jurj'- that they disregard it. 
 Though the court sustain the objection, the improper evidence 
 is on the record. A motion made to strike out and granted 
 removes it therefrom. 
 
 §21. Objections — When to he made. — A party who sits 
 by during the reception of incompetent evidence without prop- 
 erly objecting thereto, and thus takes his chance of advantage 
 to be derived by him therefrom, has not, when he finds such 
 evidence prejudicial, a legal right to require the same to be 
 stricken out. An objection can have no force so far as the 
 testimony which preceded it is concerned.' 
 
 Eep. 463 ; Palmer v. Transportation ^ 130 N. Y. 159, 30 N. Y. State Eep. 
 
 Co., 57 N. Y. State Rep. 307, 76 Hun, 779. 
 
 181. But see Schneider v. Second ^ De Caumont v. Morgan, 5 N. Y. 
 
 Ave. R Co., 133 N. Y. 583. State Rep. 541, 21 N. Y. Week. Dig. 
 
 1 Pennsylvania Co. v. Roy, 102 U. S. 357. 
 459. 
 
PEACTICE IN ADMISSION AND EEJECTION OF EVIDENCE. 721 
 III. EXCEPTIONS. 
 
 An exception taken during the progress of a trial is a pro- 
 test against tiie ruling of the court upon a question of law.' 
 It is designed as a warning for thp protection of the opposing 
 counsel so that he may consent to a reversal of the ruling. 
 Unless the question of law upon which a ruling is sought is so 
 stated that it is or should be understood, an exception is of no 
 avail, because the exception is to the ruling as made, and the 
 ruling is upon the question as stated. 
 
 1 Anderson's Law Die. 436. 
 46 
 
INDEX. 
 
 References a/re to pages, 
 ABDUCTION — 
 
 defendant may testify that he had no intention, 559. 
 
 proof of cause of by declarations of wife, 13, 14. 
 ABSENT WITNESS — 
 
 former testimony of, when beyond jurisdiction of the courli 474, 476. 
 ACCEPTANCE OF BILLS — 
 
 by parol and by writiag, 314. 
 
 cannot be varied by parol, 314 
 
 may be varied by contemporaneous written, 314 
 ACCEPTOR — 
 
 cannot deny signature of drawer, 130. 
 ACCESS — 
 
 husband and wife competent to testify, 144. 
 
 presumed when, 104, 144. 
 
 see- Non-access, 
 ACCESSARY- 
 
 when a witness, 145, 146. 
 ACCOMMODATION PAPER — 
 
 consideration, how shown, 318. 
 
 conditions upon which it was delivered, 339. 
 ACCOMPLICE — 
 
 who is, 146. 
 
 who is not, 147. 
 
 admissible as a witness, 145. 
 
 corroboration of, necessary, 145. 
 
 sufficient corroboration, 145, 146. 
 
 wife in favor of husband, 147. 
 
 ACCORD AND SATISFACTION — 
 
 pleading necessary, 50. 
 
 accord alone, 370, 873. 
 
 what is, 870. 
 
 admissible under denial, 50. 
 
 cannot be proved undpr general denial, 50. 
 ACCOUNT — 
 
 party may verify his, against estate of deceased, 159. 
 
 rendering of, an admission, 305. 
 
 may be shown by parol, 343. 
 
72i INDEX. 
 
 Beferences are to pages. 
 ACCOUNT BOOKS — 
 
 number of witnesses necessary, 244 
 
 whole must be taken together, 331. 
 
 of decedent, not testimony, 161. 
 
 what books are admissible, 343, 244. 
 
 party's, competent as against decedent's estate, 160. 
 
 aggregate of voluminous accounts may be shown by parol, 243, 343. 
 
 of decedent, competent when, 160. 
 
 preliminary proof necessary, 160. 
 
 witness cannot verify his own, 176. 
 
 entries by one in own favoi', 320. 
 
 notice to produce, 246. 
 
 need not be produced, when, 243. 
 
 must be produced, when, 243. 
 
 must be kept, how, 463, 465. 
 
 must have been a regular course of dealing, 466. 
 
 some articles must have been actually delivered, 463, 466. 
 
 it must appear that party kept fair books, 463, 466. 
 
 New York rule as to, 464. 
 
 time of entry material, 467. 
 ACCOUNT STATED — 
 
 pleading necessary, 67. 
 
 proof of settlement under general denial, 46. 
 
 ACCOUNTING — 
 
 where opposite party calls defendant to, his account is competent ; 
 against decedent, 174. 
 
 witness cannot testify to payment of money to deceased, 159. 
 ACCUSED PARTY — 
 
 privilege of, 73, 77. 
 ACKNOWLEDGMENT — 
 
 indorsement of payment as evidence of, 220. 
 
 limitations, 313. 
 
 of instrument, proof of execution, 336. 
 
 joint debtors, 313. 
 
 of making instrument, 339. 
 
 of sealing, 339. 
 
 of payment, 313. 
 
 of delivery, 339. 
 
 of partners, barred by statute of limitations, 313. 
 ACT OP GOD — 
 
 when it excuses, 348, 350. 
 ACTS — 
 
 recitals in public, 440. 
 
 malum in se, presumption as to, 643. 
 
 public ; courts take judicial notice of, 181. 
 of corporations, 376, 379. 
 
 presumed to be legal, when, 379. 
 
 when are res gestae, 486. 
 
INDEX. 735 
 
 References are to pages. 
 ACTS OF PARTIES — 
 
 to explain writings, see Res GESTiB. 
 
 ACTS OF STATE — 
 
 courts take judicial notice of, 190. 
 how proved, 236, 237. 
 require no proof, 239. 
 
 ADDING INCIDENT TO CONTRACT — 
 by custom and usage, 282, 293. 
 consideration, 300. 
 
 ADEMPTION — 
 what is, 395. 
 
 ADEQUATE REMEDIAL LAW — 
 
 must be pleaded, 70. 
 ADMINISTRATION— 
 
 letters of, 382. 
 ADMINISTRATORS — 
 
 judgment against, binding distributees, 114. 
 
 heirs or devisees, not binding on, 114. 
 executor, not binding on de bonis non, 114. 
 
 no party can testify as to personal transaction with, as against, 147. 
 
 husband may testify in favor of wife, when, 149. ' 
 
 widow, when competent to testify in action against, 149. 
 
 declarations of, not admissible, 151. 
 
 entries of decedent competent as against, 151. 
 
 incompetent in their own interest, 151. 
 
 when witness cannot testify that conversation took place, 151, 
 
 when witness cannot testify that he ever heard of sale, 151, 
 
 legatee incompetent to testify against, 152. 
 
 next of kin incompetent to testify against, 152. 
 
 heirs incompetent to testify against, 153. 
 
 agent competent witness, when, 153. 
 
 purchaser of property at sale of decedent's estate, competent, 154, 
 
 agent incompetent witness, when, 155. 
 
 when witness cannot testify that he saw paper of decedent, 154. 
 
 when witness cannot testify that he saw decedent sign a papei-, 154. 
 
 surety cannot testify in favor of principal's estate, 155. 
 
 putting instruments signed by decedent in evidence, effect of, 155. 
 
 maker of notes competent to testify in favor of indorser, 155. 
 
 indorsers competent to testify in actions between themselves, 155. 
 
 beneficiaries incompetent to testify, when, 156. 
 
 surviving partner incompetent to testify, when, 156. 
 
 transferee of negotiable paper not an assignee, 156. 
 
 when witness incompetent to state that entry was made by decedent, 156,- 
 
 when witness cannot state that decedent was silent, 157. 
 
 mother may testify to birth of child against decedent's estate, 157. 
 
 witness may testify as to deposit of money to credit of decedent, 157, 
 
 witness may state that he paid his own money upon decedent's debt, 157. 
 
726 INDEX. 
 
 Beferences are to pages. 
 
 ADMINISTRATORS (continued) — 
 
 witness cannot state that he left notices at decedent's house, 157. 
 
 witness may deny any statement of other witnesses, 158. 
 
 witness may swear that he had possession of property, 158. 
 
 when witness may state whole transaction on cross-examination, 158. 
 
 when witness may state whole transaction on re-examination, 158. 
 
 witness may testify that instrument has been altered, 158. 
 
 witness cannot testify that he had a conversation with deceased, 158. 
 
 witness may testify that certain lettera found in decedent's possession 
 
 were in testator's handwriting, 158. 
 witness cannot testify to phgsical condition of deceased, 159. 
 cannot testify to payment of money to deceased, 159. 
 party may verify his claim against estate of deceased, 159. 
 witness cannot testify that he saw deceased sign affidavit of verification, 
 
 159. 
 death of a party before completion of examination does not affect testi- 
 mony already taken, 159. 
 witness may testify to value of property purchased of deceased, 159. 
 witness may testify to value of services performed for deceased, 159. 
 entries in books of decedent, competent for, 160. 
 books of party competent as against decedent's estate, 160. 
 a party may state that a conversation did not take place, 161, 
 conversations in presence of decedent are made to him, 161. 
 meaning of word " testimony," 161. 
 books, papers and instruments not testimony, 161. 
 testimony of a deceased party competent as against decedent's estate, 
 
 161. 
 widow cannot testify, when, 161. 
 
 creditor's action by, who are competent witnesses, 161. 
 
 who cannot testify to declarations of parents as to legitimacy, 162. 
 
 deriving title, meaning of as to competency of witnesses, 162. 
 
 party may testify to signature of decedent, 163. 
 
 party may testify to extraneous facts, 163. 
 
 party cannot testify in indirect method, 163. 
 
 party cannot testify to an address on a package, 163. 
 
 party cannot testify to contents of a box, 103. 
 
 legatee cannot testify in aid of will, 164, 172. 
 
 legatee maj' testify in aid of a contestant, 164. 
 
 burden of proof as to competency, 164. 
 
 objection to competency of witness must be made when, 164. 
 
 ground of objection to witness must be pointed out, 164. 
 
 waiver of incompetency of witness, 165. 
 
 party may testify to same transaction or conversation testified to by, 165. 
 
 what IS same transaction or conversation, 165. 
 
 party cannot show transaction called out by cross-examination, 166. 
 
 party may testify that he had no conversation with decedent, 167. 
 
 parly may state that an alleged transaction with decedent never took 
 place, 167. 
 
INDEX. 727 
 
 Beferences are to pages. 
 
 ADMINISTRATORS (continued) — 
 
 witness cannot testify that he carried an ink-stand, 167. 
 
 interest that disqualifies witness, 168. 
 
 surety on decedent's note, 169. 
 
 surety on indemnity bond of sheriflE incompetent, when, 169. 
 
 agent incompetent, when, 173. 
 
 grantor incompetent as witness, when, 170. 
 
 grantee incompetent as witness, when, 170. 
 
 assignor incompetent as witness, when, 170. 
 
 assignee incompetent as witness, when, 170. 
 
 heir incompetent as witness, when, 170. 
 
 admission of, 214. 
 
 not binding on estate, 303. 
 one as against another, 314 
 
 title of, 383. 
 
 letters testamentary, 883. 
 
 declarations of, 383. 
 ADMIRALTY — 
 
 damages, 608. 
 
 judgment of collisions, 608. 
 
 ADMISSIBILITY (see Relevancy). 
 
 ADMISSIONS — 
 
 contents of writings, 68. 
 
 by agents, 64, 307. 
 
 made by party to suit, 61, 199. 
 
 in interest, 63, 199. 
 made by one of joint parties, 303, 313. 
 nominal party, 63, 300, 301, 203. 
 one of several parties, 61, 303. 
 common interest, 305. 
 persons acting in autre droit, 306. 
 guardian, 208, 209, 314. 
 wife for husband, 306. 
 attorney, 209, 213. 
 principal, as against surety, 310. 
 privy, 63, 201, 219. 
 assignor, after assignment, 509. 
 
 before assignment, 507. 
 executor, 314. 
 
 by payment, limitations, 63, 314. 
 interpreter, 209. 
 by silence, 303. 
 
 tenant against landlord, 305, 308. 
 of cestui que trust, 215. 
 
 decedent, binding on his personal representatives, 68. 
 guardian ad litem, 63. 
 co-executors and administrators, 214. 
 
728 INDEX. 
 
 Beferences are to pages, 
 ADMISSIONS (continued) — 
 
 oflEer of compromise is not, 138. 
 
 duress ; effect of, upon, 316, 230. 
 
 of contents of writing, 304, 300. 
 
 acquiescence, 61, 63, 203. 
 
 implied, 61, 64, 203. 
 
 ■when must be taken together, 63, 63, 231. 
 
 verbal, as to facts under statute of frauds, 300. 
 
 conclusive, when, 61, 63. 
 
 judicial conclusion, 61, 63. 
 
 payment into court, 63. 
 
 acted upon, as estoppel, 133, 139. 
 
 public policy makes conclusive, 119, 123. 
 
 by receipts, 126. 
 
 account rendered, 305, 
 
 of signature, 134. 
 
 of marriage, 143. 
 
 person referred to, 204 
 
 husband, when admissible against wife, 208, 309. 
 
 assent to the statements of another, 313. 
 
 by failure to deny, 43. 
 
 matter of Inducement not admitted by failure to deny, 48. 
 
 express, limited, 63. 
 
 qualified and coupled with denial, effect of, 63, 
 
 by not answering letters, 307. 
 
 coupled with a qualification, effect of, 63. 
 
 living under an assumed name, 307. 
 
 effect of denial of, 63. 
 
 of agent after business closed, 308. 
 
 of agent as part of res gestce, 308. 
 
 of manager of corporation, 209. 
 
 of station agent, 310. 
 
 of principal, 310. 
 
 of surety, 310. 
 
 of guarantor, binds principal when, 211. 
 
 of holder of choses in action, binds his assignee, when, 318. 
 
 of execution debtor, binds sheriff, when, 212. 
 
 of client out of court, does not bind, when, 313, 313. 
 
 of partners, 313. 
 
 of insured, binds beneficiary, when, 315. 
 
 of master, binds ship-owner, 315. 
 
 indorsement of payment, as an, of debt, 230. 
 
 of donor as to gift, 220. 
 
 of party in place of writing, 333. 
 
 by party dealing with corporation, B76. 
 
 ADULTERY — 
 
 wife, birth of child, 144, 
 evidence of, 144. 
 
INDEX. 729' 
 
 References are to pages, 
 
 ADULTERY (continued) — 
 evidence of paramour, 144 
 erim. con.; evidence in letters of wife, when admissible, 104. 
 
 ADVANCEMENT — 
 proof of, 387. 
 presumption that money given by parent to child is, 637. 
 
 ADVERSE POSSESSION — 
 constitutes title, when, 648. 
 presumption from, 648. 
 
 AFFIDAVIT — 
 
 by party as against a decedent, 149. 
 
 of physician, 96. 
 
 witness cannot testify that he saw deceased sign, of verification, 159.. 
 AFFIRMATION — 
 
 in place of oath, 134. 
 AGE — 
 
 what evidence competent to prove, 437. 
 
 proof of by infant, 428. 
 reputation, 428. 
 
 declarations in letters of father as to, of child, 429. 
 
 witness may testify to the apparent, 583. ' 
 AGENCY — 
 
 proof of, directly by testimony of agent, 494. 
 
 when may be presumed, 645. 
 
 by ratification, 379. 
 
 corporations, officers of, 379. 
 
 how pleaded, 69. 
 
 presumption in favor of authority of, 399, 400. 
 
 wife for husband, presumed when, 400. 
 
 one partner for another, 410. 
 
 AGENT — 
 
 when sealed contract of cannot be shown by, 267. 
 
 declaration as to capacity in which he was acting, 14. 
 
 declaration of as to property, 14. 
 
 protection of communication between attorney and client extends to, 86.. 
 
 cannot dispute title of principal, 120. 
 
 when competent as a witness against estate of decedent, 153, 154, 172, 173i. 
 
 admissions by, 208. 
 
 statement of, after business disclosed, 208, 496, 497. 
 
 declarations of, as part of res gestae, 208, 496, 497. 
 
 when interpreter is, 208. 
 
 when interpreter is not, 208. 
 
 manager of corporation, 209. 
 
 railroad station agent, 210. 
 
 refusal of agent to produce writing, 251. 
 
 parol to show that note made by agent was for principal, 271. 
 
730 INDEX. 
 
 Beferences are to pages. 
 AGENT (continued) — 
 
 authority of to make commercial paper, 316. 
 
 form of commercial paper made by, 316. 
 
 form of acceptance made by, 316. 
 
 evidence to exonerate, 317. 
 
 evidence to bind principal, 317. 
 
 torts of,, of corporation, 380. 
 
 declarations of, when transacting business, 487. 
 
 presumption as to authority, 645. 
 
 ALIBI — 
 
 burden of proof as to, 861, 657. 
 
 wife competent to testify for co-defendant of husband, 148. 
 
 ALIENAGE — 
 proof of, 395. 
 action by husband for, of wife, 403. 
 
 ALLEGATIONS — 
 
 proof must correspond with, 5, 40. 
 contingent, how pleaded, 70. 
 
 ALTERATIONS — 
 in a will, 390. 
 burden of proof of, 390. 
 presumption as to, 390, 622. 
 time of, 644. 
 
 of written contracts by parol agreements, 268. 
 erasure and interlineation, 644. 
 effect of, 648. 
 spoliation, 622. 
 
 AMBIGUITIES — 
 
 intention of party, how ascertained, 273. 
 
 latent, 268, 270, 378, 381, 389. 
 
 patent, 867, 270, 278, 281, 890. 
 
 parol evidence admissible to explain, 268, 270, 273. 
 
 parol evidence to explain guaranty, 273. 
 
 surrounding circumstances in aid of, 268, 375. 
 
 in will, how shown, 280, 890. 
 
 in notes, bills, etc., may be explained, 811. 
 
 in, when dissipated, parol ceases to be admissible, 813. 
 AMOUNT OF PROOF — 
 
 to show a deed was intended for a mortgage, 328.- 
 ANNEXING INCIDENT TO CONTRACT BY PAROL — 
 
 usage and custom, 263, 282, 284. 
 
 consideration, 800. 
 
 conditions, 829. 
 ANSWER — « 
 
 what necessary to be pleaded, 44, 46. 
 
 what may be proved under, 45. 
 
 irresponsive in part, remedy for, 718. 
 
INDEX. 731 
 
 Seferences are to pages. 
 ANTE LITEM MOTAM — 
 what is, 422, 438. 
 post litem motam, 423, 438. 
 must be shown by whom, 431, 488, 
 APPEAL — 
 
 effect of upon judgment, 116. 
 APPEARANCE — 
 proved how, 560. 
 witness may testify that a person appeared worried, 560. 
 
 that a person exhibited mental anguish, 560. 
 that two persons were friendly, 560. 
 that a person appeared mad or to be in fun, 560. 
 that persons were talking raad, 560. 
 witness cannot testify as to what certain sounds indicated, 560. 
 witness may testify if animals' tracks indicated they were running, 561. 
 non-expert may testify as to, and physical condition of party, 566. 
 persons may testify to, of intoxication, 582. 
 
 APPOINTMENT TO OFFICE — 
 acting in ofiBce, proof of, 643. 
 
 ARMORIAL BEARINGS — 
 
 evidence of pedigree, 436. 
 ARSON — 
 
 map of building set fire, 258. 
 ART — 
 
 judicially noticed, 185, 190. 
 ASSAULT AND BATTERY — 
 
 of wife by husband, 141. 
 
 proof of other assaults prior or subsequent to the one alleged, 19. 
 
 ASSIGNEE — 
 
 of litigated right, bound by litigation, 114. 
 
 no party can testify to a personal transaction with a deceased person as 
 
 against, 147. 
 what interest disqualifies, 148, 170, 171. 
 
 wife incompetent to testify against assignee of deceased husband, 150. 
 wife competent to testify against assignee of life policy from husband, 
 
 150. 
 transferee of negotiable paper not an, 156. 
 
 deriving title ; meaning of as to competency of witnesses, 102, 505, 506. 
 bound by declaration of assignor as to choses in action, 213, 505, 506. 
 
 ASSIGNMENT — 
 pleading of, 66. 
 
 for benefit of creditors, must be pleaded, 47, 359. 
 cannot be varied by parol, when, 321. 
 may be varied by parol, when, 321. 
 creditor's action to set aside, 359. 
 may be made by parol, 378. 
 
732 INDEX. 
 
 Beferences are to pages, 
 ASSIGNMENT (continued) — 
 in equity, what is, 373. 
 test of equitable, 373. 
 of debt, carries collateral when, 373. 
 proof of consideration unnecessary, when, 373. 
 defendant cannot question it, when, 374. 
 proof of delivery of, 374. 
 is taken subject to defenses, when, 374. 
 notice of, 375. 
 by executors, trustees, receivers, eta, 875. 
 
 ASSIGNOR — 
 
 admissions by, 505, 506. 
 
 incompetent as a witness, when, 170, 171. 
 
 ASSUMPSIT — 
 
 common counts, 55, 57. 
 
 special contract must be pleaded, 48, 56. 
 
 request, 54. 
 
 promise, 54 
 
 money paid, 57. 
 
 account stated, 67. 
 
 work, labor, services, 54. 
 
 general issue, what may be shown under, 44, 46. 
 
 ATHEIST — 
 
 witness, competency of, 134, 136. 
 ATTESTING WITNESSES — 
 
 must be called, when, 335. 
 
 blind, 325. 
 
 when dead, 325. 
 
 signature of, proved how, 225. 
 
 need not be called, when, 236. 
 
 character of, how supported, 237. 
 
 must identify writer, 888. 
 
 proof of instrument by one, 331. 
 
 where all are dead, 331. 
 
 where all are out of jurisdiction, 331. 
 
 proof of signature, presumptive evidence of truth, 88. 
 
 character, when impeachable, 37. 
 
 party calling may impeach, 37. 
 
 impeached by declarations of, 88. 
 
 may testify as to mental capacity of testator, 553. 
 ATTORNEY — 
 
 privilege from, to testify to matter received professionally, 84 
 to matters committed to paper in course of employment, 84 
 will not be compelled to disclose or produce papers, 84 
 
 cannot reveal matters during or after employment, 84 
 
 immaterial whether client Is party to action or not, 85. 
 
 presumption that all communications between, and client, are confiden- 
 tial, 85. 
 
INDEX. 733 
 
 References are to pages. 
 ATTORNEY (continued) — 
 
 burden of proving relationship is upon whom, 85. 
 any one who the client supposed to be an, is bound, 83. 
 communications are forever inviolable, 85. 
 refusal of to act, effect of, 85. 
 
 objection to testimony part competent and part incompetent, 85. 
 court must strike out incompetent testimony, 85. 
 proceedings against, not affected by interest of witness, 149. 
 where denies relation, 85. 
 
 court must determine when relation exists, 85. 
 privilege — 
 
 what communications come within the rule, 85. 
 
 protection extends to interpreter, 86. 
 
 purpose contemplated in violation of law not privileged, 86. 
 
 communications after commission of crime are, 86. 
 
 instructions in regard to making a will, 86. 
 
 acts of testator in making a will, 87. 
 
 instructions by testator as to will, 87. 
 
 information obtained from documents admitted for inspection, 87. 
 cannot testify that client held deed for benefit of another, 87. 
 pleading not regarded as privileged, 87. 
 yhere two or more consult for mutual benefit, 87. 
 letters passing between, and client, confidential, 87. 
 
 papers executed between, 87. 
 when may be compelled to produce papers, 87. 
 may be compelled to testify to delivery of papers, 88. 
 conversation of two parties in presence of, not privileged, 88. 
 communications to, in presence of third party, 88. 
 •objection to privilege of confidential communication, how taken, 88. 
 client not obliged to disclose opinion of, 89. 
 party testifying, effect of, 89. 
 •cannot produce papers, when, 89. 
 employed as a conveyancer, 89. 
 as a party, 90. 
 
 protection perpetual, when, 90. 
 communication not privileged, when, 00. 
 between principal and agent, 90. 
 
 trustee and cestui que trust, 90. 
 facts observed by legal adviser, 91. 
 
 when communications are for an unlawful purpose, 91. 
 party calling, waives privilege, 93. 
 majority of parties may waive privilege, 93. 
 statements to be communicated to others not privileged, 93. 
 proof of payment by, to client, not privileged, 94. 
 admission of, bmds client when, 213. 
 entries by deceased, 441. 
 declaration of, does not bind client when, 495. 
 presumption that he was duly employed, 645. 
 
734 INDEX. 
 
 References are to pages. 
 
 ATTORNEY AND CLIENT — 
 
 burden on attorney to show good faith of transactions between, 368, 
 
 AUCTIONEER — 
 
 memorandum best evidence, 356. 
 
 AUTHORITY — 
 
 presumption as to, 316, 613, 645. 
 
 of holder of paper, 316. 
 
 of agent to make paper, 316. 
 
 of officers of corporations, 379. 
 
 of agent, must be shown, when, 381. 
 
 of officer to contract, 404 
 AUTOGRAPH — 
 
 what is, 578. 
 
 how proved, 573. 
 AUTREFOIS ACQUIT (see Res Adjudicata). 
 
 AVERMENT (see Pleadings). 
 
 B. 
 
 BAILEE — 
 
 cannot dispute title of bailor, 120. 
 
 BAILOR (see Estoppel). 
 
 BANK — 
 
 books of, as evidence, 243. 
 
 shareholders of, competent to testify against decedent's estate, 16& 
 BANKRUPT (see Assignor). 
 BAPTISM — 
 
 proof of, 435. 
 
 register, 435. 
 
 BASTARDY — 
 
 period of gestation, 636, 637. 
 
 legitimacy presumed, 348, 395, 398, 621. 
 BEER — 
 
 courts take judicial notice of meaning of word, 187. 
 
 who competent to testify as to, 345. 
 BEGINNING AND REPLY — 
 
 who entitled to begin, 338, 340. 
 BEHALF — 
 
 when interested party may testify, 165. 
 BELIEF — 
 
 lack of religious, to dying declarations, 458. 
 
 of handwriting, 338, 573. 
 
 religious, presumed, 133. 
 
 grounds of, 135. 
 
 necessary to competency of witness, 133. 
 
INDEX. 735 
 
 References are to pages, 
 BELIEF (continued) — 
 
 religious, not a test of competency, when, 135. 
 presumed to continue, 135. 
 
 witness may testify as to bis, in identity of a person, 560, 
 BENEFICIARIES — 
 
 under a will, incompetent to testify, 156, 172. 
 
 cannot testify in support of a will, 164, 173. 
 
 not bound by statements of insured, when, 315, 
 BEST EVIDENCE — 
 
 what is, 323, 334 
 
 excludes what, 333. 
 
 instruments which the law requires to be in writing, 334 
 
 contracts which parties have reduced to writing, 224 
 
 all writings the contents of which are disputed, 334 
 
 writings accompanied by verbal statements, 234 
 
 collateral writings, 334 
 
 duplicates, 324 
 
 counterpart, 224 
 
 lithographic copies, 335. 
 
 photographic copies, 335, 256. 
 
 printed copies, 225. 
 
 documents duly acknowledged, 226. 
 
 documents executed by public office, 236. 
 
 registered documents, 336. 
 
 ancient documents, 233. 
 
 warrants, 332. 
 
 admission of party as, 233. 
 
 rule does not apply to public writings, 335, 
 
 examined copies, 235. 
 
 exemplifications, 234 
 
 certified copies, 335. 
 
 legislative acts of states and territories, 236. 
 
 records and judicial proceedings of state courts, 237. 
 
 public records of state not judicial, 237. 
 
 foreign acts of state, judgments, etc., 338, 
 
 law of United States, 236. 
 
 foreign and interstate laws, 238, 
 
 printed copies of l^ws, 238. 
 
 telegram, 354 
 
 executed deposition, 255. 
 
 memoranda of auctioneer, 356. 
 
 demonstrative, 256. 
 
 view of premises, 356, 
 
 portable objects, 356. 
 
 blood stains, 356. 
 
 view of child, 356. 
 
 description of cumbrous articles, 357. 
 
 pieces of clothing, 257. 
 
•'73Q INDEX. 
 
 Beferences are to pages. 
 
 BEST EVIDENCE (continued) — 
 
 written presumed to merge oral agreement, 264 
 writing presumed to contain the whole agreement, 365. 
 parol not admissible to explain writing, 266. 
 memoranda, when, 473. 
 
 BIAS — 
 
 of witness, how shown, 37. 
 
 BIBLE — 
 
 courts take judicial notice of contents of, 187. 
 evidence of pedigree, 433. 
 family record, 433. 
 
 BIGAMY — 
 
 either party may testify to marriage and cohabitation, 106. 
 proof of marriage necessary, 106. 
 
 where first marriage is proved, wife of second marriage is competent 
 witness, 106. 
 
 3ILL OF EXCHANGE — 
 
 acceptor of, cannot dispute signature of drawer, 120. 
 one having given currency to, not competent to discredit it, 130. 
 consideration, 313, 365. 
 signature to, proof of, 573. 
 witness may state that, has been altered, 158. 
 parties to, when incompetent to impeach, 130. 
 transferee of, not an assignee, 156. 
 
 putting of, signed by decedent, in evidence, effect of, 155. 
 indorsers of, competent in actions between themselves as against deced- 
 ent's estate, 155. 
 witness may state that indorsement was on, when delivered to him, 167. 
 admission of holder before due, when admissible, 203. 
 
 after due, 303. 
 cannot be varied by parol, 866, 309. 
 parol not admissible to explain, 266, 310, 313. 
 iparol to show that they were to be paid on a contingency, 266. 
 understanding of parties as to, inadmissible, 309. 
 that one appearing as maker signed as surety, 310. 
 parol to vary, as between original parties thereto, 310. 
 parol to vary, as against a holder in due course, 310. 
 indorser may show contract with payee, when, 310. 
 that it was executed as a mere receipt, 310. 
 indorsers may show that they were not to be made liable, 310. 
 parol evidence admissible to show use for accommodation, 310. 
 
 to show that indorsement in blank was without recourse, 
 
 311. 
 as to intention of irregular ipdorser, 311. 
 acceptor may show that he was to be bound as guarantor, 311. 
 ambiguities in, may be explained by parol, 311. 
 time of Indorsement may be shown, 313. 
 
INDEX. 737 
 
 References are to pages. 
 
 BILL OF EXCHANGE (continued) — 
 
 when ambiguities dissipated, parol ceases to be admissible, 313. 
 
 regular indorsement cannot be explained by parol, 313. 
 
 indorser cannot show indorsement conditional, 813. 
 
 indoiser can show consideration for indorsement, 318. 
 
 holder of, has burden of proof, when, 818. 
 
 true relation of parties may be shown, when, 314. 
 
 made in blank, 314. 
 
 names of parties to, how shown, 314. 
 
 character of acceptance, 314. 
 
 acceptance of, cannot be varied by parol, 314 
 
 acceptance of, may be varied by contemporaneous writing, 314. 
 
 drawer may be sliown to be acceptor, when, 314. 
 
 conditions of acceptance of, must be shown by holder, 315. 
 
 mistake in date may be shown, when, 816. 
 
 presumption as to date, 316. 
 
 authority of agent to make, 316. 
 
 form of acceptance of agent, 316. 
 
 form of, made by agent, 316. 
 
 evidence to exonerate agent, 317. 
 
 to bind principal, 317. 
 
 to show that writing apparently absolute is not, 318. 
 waiver of demand of notice, 336. 
 conditions upon which it was delivered, 339. 
 burden of proof as to, 343, 
 
 BILL OF LADING — 
 
 explaining by parol, 319. 
 
 conditions upon which it was delivered, 339. 
 
 BILL OF PARTICULARS — 
 limitations of proof under, 71. 
 
 BILL OF SALE — 
 
 original must be produced, 333. 
 
 parol proof to identify the subject or person, 371, 330. 
 proof to show conditional, 330. 
 cannot be varied by parol, when, 331. 
 may be, 331. 
 
 BIRTH — 
 
 public entries of, 435. 
 
 proof of, 435. 
 
 declarations as to date of, 439. 
 
 period of gestation presumed, 637. 
 
 BLACKBOARD — 
 
 when witness may use, 359, 580. 
 
 BLANK (see Alterations). 
 
 47 
 
738 INDEX. 
 
 References are to pages. 
 
 BONA FIDE PURCHASER — 
 
 proof of, under general denial, incompetent, 44. 
 
 burden of proof as to, 313, 365. 
 
 acceptance of bills cannot be varied by parol, 314. 
 
 BOOK CHARGES — 
 evidence of, 463, 467. 
 
 BOOKS — 
 
 of science as evidence, 478. 
 
 shop, admissible when, 344. 
 
 medical, cannot be read to jury, 573. 
 
 of corporation, 252, 381. 
 
 of physician, privileged, 97. 
 
 of decedent, competent evidence for administrator, 160, 
 
 entries by one in his own favor, 230. 
 
 BOOKS OF ACCOUNT — 
 
 of decedent, competent when, 160. 
 
 preliminary proof necessary, 160, 243. 
 
 of party, competent as against decedent's estate, 160. 
 
 not testimony, 161. 
 
 witness cannot verify his own, 176. 
 
 whole must be taken together, 231. 
 
 number of witnesses necessary, 344. 
 
 must be verified, how, 344. 
 
 stranger must be served with subpoena duces tecum, 345. 
 
 of tradesman, 463. 
 
 must be kept, how, 463, 465. 
 
 must have been in regular course of dealing, 463, 466. 
 
 some articles must have been actually delivered, 463, 466. 
 
 it must appear that party kept fair books, 463, 466. 
 
 New York rule as to, 466. 
 
 time of entry material, 467. 
 
 BOUNDARIES — 
 
 deceased surveyor's declarations of, competent to prove, 434, 449. 
 
 declarations as to, when competent, 424, 449. 
 
 declarations of surveyor competent to prove, when, 434, 449. 
 
 maps of surveys, proof of, when, 434, 448. 
 
 owner's declarations may be given when, 434, 449. 
 
 perambulations, evidence of, when, 434, 448. 
 
 private, evidence to establish, 447. 
 
 courts take judicial notice of public, 189. 
 
 provable by hearsay, 418. 
 
 reputation, 418. 
 BREACH — 
 
 how must be pleaded, 52, 68. 
 
 proof of, 53. 
 
 excuse for, not admissible under allegation of performance, 57. 
 
INDEX. 739 
 
 References are to pages. 
 
 BREACH OF PROMISE OF MARRIAGE — 
 
 witness may testify she was engaged to defendant, 564. 
 
 may state how plaintiS was affeeted, 14. 
 reputation is directly in issue, 28. 
 plaintiff may show pecuniary circumstances of defendant, 693. 
 
 BRIBES — 
 
 proof of offer of, 36. 
 
 BURDEN OF PROOF — 
 
 who must show proviso and exceptions, 44. 
 
 plaintiff must show cause of action, 44. 
 
 of bona fide purchaser, 44. 
 
 of showing that information was necessary, 95. 
 
 must show that relation between physician and patient actually ex- 
 isted, 95. 
 
 party objecting to confidential communication, 107. 
 
 who must show witness incompetent, 164. 
 
 people must show confession free and voluntary, 216. 
 
 people must show that interpreter gave the exact words of confession, 
 218. 
 
 party seeking to introduce secondary evidence has, 245. 
 
 proving search, 246. 
 
 party objectmg to secondary evidence must show original, 251. 
 
 holder of commercial paper has the, 313. 
 
 plaintiff bound to show that a deed was intended for a mortgage, 328. 
 
 right to begin, 338. 
 
 where there are several issues, 339. 
 
 remains where, 840. 
 
 matter of mitigation, 341. 
 
 of delivery, 341. 
 
 acceptance of goods, 341. 
 
 of waiver, 842. 
 
 of conditions, 842. 
 
 as to exceptions, 842. 
 
 afitto legitimacy, 342. 
 
 as to bills of exchange, 343. 
 
 for civil damages, 344. 
 
 of intoxication, 344. 
 
 for civil penalties, 345. 
 
 as to limitation, 345. 
 
 fraud, sufficient evidence to go to jury, 343. 
 
 of negligence, 347, 854. 
 
 as to carrier's bailees, 349. 
 
 as to carriers of passengers, 349. 
 
 as to railroad trains, 848. 
 
 as to contributory negligence, 350. 
 
 in accident case, 348, 358. 
 
 plaintiff must show negligence, when, 349. 
 
740 .INDEX. 
 
 'References are to pages, 
 
 BURDEN OF PROOF (continued) — 
 
 preponderance of evidence sufficient, 349, 355. 
 
 in action by servant against master, 851. 
 
 in action against master for acts of servant, 351. 
 
 negligence committed abroad, 353. 
 
 continuous fraudulent transactions, 355. 
 
 of crime, 361. 
 
 creditor must show fraud, 356. 
 
 intent must be shown by whom, 356. 
 
 constructive fraud, 368. 
 
 defenses, 359. 
 
 forfeiture, 360. 
 
 warranties, 360. 
 
 mistake, 360. 
 
 exemption, 360. 
 
 affirmative, 359. 
 
 license, 360. 
 
 work and service, 360. 
 
 alibi, 361, 657. 
 
 self-defense, 361. 
 
 of release of action, 361. 
 
 of statute of limitations, 361. 
 
 ultra vires, 363. 
 
 breach of condition, 363. 
 
 that defendant was under the age of fourteen years, 363. 
 
 insanity of defendant, 363. 
 
 illegaUty of contract, 363. 
 
 usury, 363, 367. 
 
 bona fide holder of negotiable paper, 365. 
 as to interlineations in will, 390. 
 of marriage, 387. 
 
 party denying legitimacy has, 398. 
 party denying issue of marriage has, 398. 
 of proving relationship in pedigree cases, 430. 
 of ante litem motam, on whom, 431. 
 
 BUSINESS — 
 
 presumption from, 613. 
 
 memorandum made in usual course of, 614 
 
 c. 
 
 CALENDAR — 
 
 of jailer of prison proves commitment, 440. 
 
 CANCELLATION — 
 of will, 634 
 
 CAPACITY — 
 presumed, 637. 
 
INDEX. 74:1 
 
 Beferences are to pages, 
 CARE — 
 
 opinion as to, 548. 
 CARRIER — 
 
 contract with, must be alleged, 53. 
 
 of passengers, burden of proof, 609. 
 
 of freight, burden of proof, 611. 
 
 of presumption as to railroads, 613. 
 
 negligence of, must be pleaded, 49. 
 
 presumption as to, 349, 606, 608. 
 
 loss of goods, proof of negligence, 606. 
 
 special exemption in contract with, not material, 53. ' 
 
 restriction of liability, 349, 352. 
 
 presumption as to ship, 608. 
 
 negligence, burden of proof of, 350. 
 
 common, what excuses, 350. 
 
 as to baggage, 611. 
 
 contributory negligence, 46. 
 
 breaking of machinery, 16. 
 
 passenger conductor may testify that he did not intend to expel, 554 
 CASE, ACTION UPON THE — 
 
 pleading in action, 49, 51. 
 CENSUS — 
 
 courts take judicial notice of, 183. 
 CERTAINTY (see Opinions). 
 CERTIFICATE — 
 
 of protest of notary, 440. 
 
 oflScial, judicial notice of, 186. 
 
 of state and federal ofScials, 439. 
 
 offlcer^estopped by, 135. 
 
 of organization of corporation, 377. 
 
 of election of officer, 403. 
 
 of marriage as declaration of pedigree, 435. 
 CERTIFIED COPY — 
 
 proof of production of original, 335. 
 
 examined copies, 335, 
 
 exemplification, 334. 
 
 by whom to be made, 235. 
 
 of laws of United States, 336. 
 
 legislative acts of state and territory, 236. 
 
 of judicial acts, 237. 
 CESTUI QUE TRUST — 
 
 cannot testify against one claiming under, 166. 
 
 admissions as evidence against trustee, 315. 
 
 admissions of guardian not binding on, when, 215. 
 CHARACTER — 
 
 a fact in issue, when, 20. 
 
 definition, 20. 
 
742 INDEX. 
 
 Beferences are to pages. 
 CHARACTER (continued) — 
 
 at issue in criminal cases, when, 30. 
 
 in civil cases, when, 20. 
 general bad, of prosecutrix in action for rape, SI. 
 general, for unchastity, 21. 
 may be rebutted, how, 21. 
 given to rows, not admissible, 21. 
 
 evidence of specific and independent immoral acts, not admissible, 21. 
 male witness, bad character for chastity, 31. 
 attesting witnesses impeached, 31. 
 of animals, by particular acts, 31. 
 witness cannot be asked if he has been impeached, 31. 
 
 if an action is pending against him for false swearing, 31. 
 conviction may be proved by cross-examination in relation thereto, 31. 
 indictment cannot be shown by cross-examination, 33. 
 on redirect examination, may show anything, 23. 
 where, is directly put in issue, 22. 
 is always admissible for the prisoner, 23. 
 form of question as to, 22. 
 of prisoner, state cannot put in question, 33. 
 particular trait of, may be shown, 33. 
 
 evidence restricted to that trait, 33. 
 for being quarrelsome, 28. 
 
 • dangerous, 23. 
 
 for want of chastity, 28. 
 for peace and quietude, 23. 
 qualification of witness to show, 84 
 state may show bad, of prisoner, 34 
 place where shown to be, 34 
 proof of intoxication, 34 
 general, how sustained, 24 
 
 when party entitled to, 27. 
 witness must know general, 24 
 
 party cannot call witness to impeach general, of witness, 39. 
 irrelevant matter to test moral sense, 31. 
 plaintiff may show good, in action for libel or slander, 35. 
 gambling-house, how shown, 35. 
 
 disorderly bouse, 35. 
 malicious prosecution, bad, of plaintiff, 35. 
 proof of corrupt motives, 36. 
 CHARACTERS — 
 
 meaning of in instruments may be shown, 67, 368, 270. 
 illegible, explained by parol, 368. 
 abbreviations, explained by parol, 268. 
 ambiguities, explained by parol, 261. 
 CHARTER — 
 
 of corporation, 375, 390. 
 acceptance of, presumed, 377. 
 
INDEX. 743 
 
 Eeferences are to pages. 
 CHARTER (continued) — 
 
 contracts within the scope of, 379. 
 
 presumption that, was legal, 377. 
 
 acceptance of, shown, 480. 
 
 courts take judicial notice of, 184. 
 
 acceptance of, of corporation, presumed when, 877, 
 CHASTITY— 
 
 want of, how proved, 23. 
 CHEATING (see Fraud). 
 CHECKS — 
 
 ambiguity in, may be explained by parol, 311. 
 
 stubs of, evidence when, 477. 
 CHILD — 
 
 view of, to show paternity, 257. 
 
 photograph of, to show physical development, 257. 
 
 advancement to, 387, 388. 
 
 domicile of parent domicile of, 395. 
 
 declaration of mother as to legitimacy of, 428. 
 
 declaration in letters of father as to age of, 429. 
 
 declaration not admissible to show illegitimacy of, 433. 
 
 dying declaration of, of tender years, incompetent, 453. 
 
 services of minor for parent supposed to be gratuitous, 609. 
 
 presumption that one between the ages of seven and fourteen isnot ca- 
 pable of committing crime, 6i!7. 
 
 that a boy under fourteen years of age not capable of committing rape, 
 637. 
 
 CHILDREN— 
 
 domicile of parent domicile of, 395. 
 
 meaning of, 391. 
 
 view of, to show relationship, 226. 
 
 as witnesses, 135. 
 
 how may be instructed, 135. 
 
 conception of divine punishment, 185. 
 
 deaf and dumb, not competent when, 137. 
 
 paramour competent to testify as to legitimacy of, 144. 
 
 mother may testify to birth of, against estate of decedent, 157. 
 
 who cannot testify to declarations of parents as to legitimacy of, 163. 
 CfiOSE IN ACTION — 
 
 assignability of, 373. 
 
 declarations ofholder bind his assignee, when, 213, 505, 507, 508. 
 
 declaration of vendor of, 508. 
 
 declaration of vendor before he became owner, 507. 
 
 declaration made at time of selling, 511. 
 
 vendee must be purchaser for value, 51 1. 
 CIRCUMSTANCES — 
 
 proof of, in aid of construction of written instrument, 268, 270, 890, 391, 
 
 difference between, 594. 
 
74i HTDEX. 
 
 Beferences are to pages, 
 
 CIRCUMSTANTIAL EVIDENCE — 
 
 relevancy in general, 8, 9. 
 
 finding liquor in barn, 9. 
 CITIZENSHIP — 
 
 proof of birth of party, evidence of, 395. 
 
 records of naturalization, 395. 
 
 domicile of person as proof of, 395. 
 CIVIL DAMAGE — 
 
 proof in, 344. 
 CLERGYMEN — 
 
 confidential communication to, 101. 
 
 as witnesses, 101. 
 
 statements made by, not assented to, 204 
 CLERK — 
 
 of attorney, as a witness, 91, 94 
 
 books kept by, 160, 245. 
 
 protection of communication between attorney and client extends to, SB- 
 CLIENT— 
 
 privilege from testifying to matters received professionally, 84. 
 to matters committed to paper in course of employment, 84 
 
 will not be compelled to disclose or produce papei's, 84. 
 
 cannot reveal matters during or after termination of employment, 84 
 
 immaterial whether client is party to action or not, 85. 
 
 presumption that all communications between attorney and, are con- 
 fidential, 85. 
 
 burden of proving relationship is upon whom, 85. 
 
 any one whom the client supposed to be an attorney is bound, 85; 
 
 communications are forever inviolable, 85. 
 
 refusal of attorney to act, effect of, 85. 
 
 objection to testimony part competent and part incompetent, 85. 
 
 court must strike out incompetent testimony, 85. 
 
 where attorney denies relation, 85. 
 
 court must determine when relation exists, 85. 
 
 what communications come within the rule, 85. 
 protection extends to interpreter, 86. 
 
 where two or more consult attorney for mutual benefit, 87. 
 
 letters passing between client and attorney confidential, 87. 
 papers executed between, confidential, 87. 
 
 when may be compelled to produce papers, 87. 
 
 attorney may be compelled to testify to delivery of papers, 88. 
 
 conversation of two parties in presence of attorney not privileged, 88. 
 
 communication of two parties in presence of third party not privi- 
 leged, 88. 
 
 objection to privilege of confidential communicatiotr, how taken, 88. 
 
 client not obliged to disclose opinion of counsel, 89. 
 
 party testifying, effect of, 89. 
 
 attorney cannot produce papers, when, 89. 
 
INDEX. 745, 
 
 References are to pages, 
 CLIENT (continued) — 
 
 attorney employed as a conveyancer, 89. 
 when attorney is a party, 90. 
 protection perpetual, when, 90. 
 communication not privileged, when, 90, 
 
 between principal and agent, 90. 
 
 between trustee and cestui que trust, 90. 
 facts observed by a legal adviser, 91. 
 when communications are for an unlawful purpose, 91. 
 
 when made before attorney was employed, 93. 
 party calling attorney waives privilege, 92. 
 majority of parties may waive privilege, 93. 
 statements to be communicated to others not privileged, 93. 
 proof of payment by attorney to client not privileged, 94. 
 admission of attorney of record binds, when, 213. 
 statement out of court does not bind, when, 313, 218. 
 
 CO-DEFENDANT — 
 
 wife not competent to testify against her husband as, 143. 
 
 wife competent to testify as to alibi of, 143. 
 
 husband and wife jointly indicted, declarations of either incompetent, 
 144. 
 
 not interested, competent to testify in favor of, 151. 
 
 notice to produce documents by, 348. 
 COERCION — 
 
 of wife by husband, presumed, 687. 
 
 contract obtained by, 602. 
 COHABITATION — 
 
 as presumption as to marriage, 397. 
 COLLATERALS — 
 
 assignment of debt carries, when, 373. 
 COLLATERAL CONTRACT BY PAROL — 
 
 to put premises in repair, 323. 
 
 of lessor to make repairs, 334. 
 
 to which writing is silent, 334. 
 
 to show agreement subsequently made, 324. 
 COLLATERAL FACTS — 
 
 evidence of, relevant when, 10. 
 
 cross-examination to, 81. 
 
 party generally bound by, to show temper, disposition and conduct of 
 witness, 33. 
 COLLATERAL WRITINGS — 
 
 parol proof in place of, 334, 363. 
 COLLISION — 
 
 presumption of negligence, 348. 
 COMITY — 
 
 of nations, presumed, 181, 191. 
 
7J:6 INDEX. 
 
 References are to pages. 
 COMMERCIAL PAPER — 
 
 prior or contemporaneous parol agreement not admissible, 309. 
 understanding of parties as to, inadmissible, 309. 
 that one appearing as maker signed as surety, 310. 
 parol evidence to vary as between original parties to, 810. 
 
 as to holder in due course, 310. 
 
 as between indorsers. 310. 
 
 that it was executed as a mere receipt, 810. 
 
 as to use of accommodation, 310. 
 
 indorsement in blank was without recourse, 311. 
 
 intention of irregular indorser, 311. 
 
 to show ambiguity, 311. 
 ■when ambiguity dissipated, parol evidences ceases to be admissible, 313. 
 indorser can show consideration for, 313. 
 
 true relation of parties to, may be shown, when, 314 
 
 made in blank, 314. 
 
 name of parties to, shown, 814 
 
 drawer may show he is acceptor, 314 
 
 date of, may be shown, how, 816. 
 
 mistake in date of, 816. 
 
 presumption as to date, 316, 619. 
 
 presumption as to authority of holder of, 316, 617. 
 
 authority of agent to make, 316. 
 
 evidence to exonerate agent, 317. 
 
 evidence to charge as principal, 817. 
 
 waiver of demand and notice, 336. 
 
 conditions upon which delivered, 329. 
 
 witness may state whether he signed as maker or surety, 563. 
 
 presumption as to consideration of, 638. 
 
 presumption as to protest, 618. 
 
 ■COMMITTEE — 
 
 no party can testify as to conversation with idiot or lunatic as against 
 
 his, 147. 
 party to an action, 148. 
 what interest disqualifies, 148. 
 incompetent in their own favor, 151. 
 inventory of widow, incompetent, 151. 
 
 ■COMMON — 
 
 provable by hearsay, 416, 418. 
 law, presumption as to, 643. 
 
 COMMON REPUTE — 
 
 pedigree proved by, 435, 428. 
 
 of partnership, 407. 
 
 impeaching witness by, 25, 26, 27, 28. 
 
 sustaining witness by, 26, 27, 28. 
 
INDEX. 747 
 
 References are to pages. 
 COMMUNICATIONS — 
 
 between attorney and client, 84, 90. 
 between parent and physician, 94, 100. 
 between priest and penitent, 101. 
 COMPARISON OF HANDWRITING — 
 cross-examination of witness as to, 577. 
 
 only allowed where instrument is subject of controversy, 577, 
 standard only allowed in case of disputed writing, 576. 
 for, how proved, 575. 
 preliminary examination as to, 575. 
 for, how fixed in the mind, 575. 
 documents duly acknowledged as, 576. 
 party to action may testify to, 576. 
 need not be proved by direct evidence, 580. 
 allowed on cross-examination, 581. 
 experts may illustrate upon blackboard, 580. 
 may testify that writing is simulated, 580. 
 cannot compare from photographic copies, 580. 
 not allowed by common law, 575. 
 
 witness cannot write his name in presence of court for, 578. 
 with ancient documents, 575. 
 COMPETENCY — 
 
 witnesses in general, 131. 
 evidence not within issue, incompetent, 41. 
 examination under voir dire, 131. 
 when shown, 133. 
 
 objection must be to improper evidence, 132. 
 witness incompetent from extreme youth, 133. 
 deaf and dumb person not incompetent, 133. 
 necessary to competency of witness, when, 188. 
 persons convicted of infamous crime, 133. 
 
 as against decedent's estate ; no party can testify to a personal transac- 
 tion or personal communication with a deceased person as against his 
 estate, 147. 
 party to an action, 148. 
 what interest disqualiiies, 148. 
 
 husband may testify in favor of his wife, when, 149. 
 wife may testify in favor of her husband, when, 149. 
 widow, when competent in an action against heirs, 149. 
 
 inventory of, incompetent, when, 151. 
 of hearsay, 418. 
 rules as to, 414 
 to private rights, 416. 
 common report, 418. 
 recitals in writing, 418. 
 of witness to family history, 485, 437. 
 
 declarant must be a relative of the person whose history is to be 
 proved, 437. 
 
74:8 INDEX. 
 
 Eeferences are to pagea. 
 
 COMPETENCY (continued) — 
 of man as to marriage, 438. 
 of woman as to legitimacy of child, 438. 
 
 COMPLAINT — 
 
 of one injured, 500. 
 prosecutrix in rape, 505. 
 
 COMPOSITION — 
 
 with creditor, must he alleged, 49. 
 
 COMPROMISE — 
 
 offer of, when not admission, 138. 
 
 privilege does not extend to admission of disputed fact, 138. 
 privilege extends to all subsequent communications, 139. 
 admission expressed or implied from the offer, 130. 
 
 CONDITIONAL ACCEPTANCE OF BILLS — 
 
 holder must show performance of condition, 315. 
 when acceptor must show, 315. 
 
 CONDITIONS — 
 
 to do either of two thirlgs, 68. 
 precedent, must be alleged, 68. 
 
 to written contract, may be shown by parol, 863. 
 of acceptance, must be shown by holder, 315. 
 upon which a writing was delivered, 339. 
 burden of proof of, 343. 
 
 CONFESSION — 
 
 influence to obtain, 816. 
 
 induced by restraint, 816. 
 
 improperly obtained, 317. 
 
 admissions, 816, 317. 
 
 caution in receiving, 818. 
 
 must be voluntary, 816, 819. 
 
 obtained by officers, 815, 318. 
 
 property discovered in consequence of, 317, 219. 
 
 of prisoner to the voir dire, 317. 
 
 judicial, 816. 
 
 extrajudicial, 816. 
 
 when made by party drunk, 317. 
 
 by prisoner before coroner's jury, 318. 
 
 obtained by threat, 318. 
 
 obtained by promise, 318. 
 
 people must show that interpreter gave the exact words of, 318. 
 
 whole must be taken together, 331. 
 
 CONFESSION OF JUDGMENT— 
 effect of, as res adjudicata, 116. 
 
INDEX. 749 
 
 References are to pages. 
 
 CONFIDENTIAL COMMUNICATIONS — 
 between husband and wife, 103, 105. 
 
 information acquired while attending a patient, necessary, 94. 
 certificate of physician in life insurance cases, 94. 
 physician sent by prosecuting authority to make report, 94. 
 consulting physician, 95. 
 
 knowledge obtained from personal acquaintance with patient, 95. 
 opinion of physician as to mental condition of patient, 95. 
 as between devisees and heirs at law, 95. 
 burden of showing that information was necessary, 95. 
 information derived from the senses of hearing and sight, 96. 
 affidavit of physician, 96. 
 
 physician not compelled to deliver his books for examination, 97, 
 books of physicians are privileged, 97. 
 physician may say that his patient was cured, 97. 
 assignee of patient entitled to take advantage of prohibition, 98. 
 objection must be interposed by whom, 98. 
 any party may waive privilege, 98. 
 physician cannot testify after death of party, 99. 
 who may waive privilege after death of party, 99. 
 physicians as to personal injuries by patient, 99. 
 parents may waive privilege for infant child, 101. 
 attorney may waive privilege for his client, 101. 
 
 acts of, when confidential, 103. 
 protection extended after the death of either party, 104. 
 neither husband nor wife can be compelled to disclose, 104. 
 voluntary testirnony by wife, admissible when, 104. 
 between husband and wife in presence of third party not privileged, 104. 
 protection extends after divorce of husband and wife, 105. 
 letters written by husband to wife privileged, l(te. 
 at the very time of marriage, 105. 
 non-communication not privileged, 105. 
 before marriage, 105. 
 in actions for separation, 105. 
 
 either party may testify in favor of the other, 105. 
 are such as made expressly confidential, 107. 
 may be waived by party against whom offered, 107. 
 
 CONFIRMATION — 
 
 of testimony of accomplices, 145, 146, 
 CONSENT — 
 
 silence as proof of, 203, 804 
 CONSIDERATION — 
 
 of written assignment, presumed when, 873. 
 
 extrinsic evidence may show, 300. 
 
 pleading want of, 45, 68, 300, 301. 
 
 parol proof of want of, 45, 300, 301. 
 
 recital of, may be shown to be different, 363, 300, 301. 
 
750 INDEX. 
 
 Beferences are to pages, 
 
 CONSIDERATION (continued) — 
 presumption, 618. 
 sealed contracts, 300, 301, 
 fictitious, 358. 
 
 failure of, under general denial, 45. 
 want of, may be shown by parol, 263, 300, 801. 
 holder of commercial paper has burden of showing, 313. 
 proof of assignment unnecessary, when, 373. 
 
 CONSPIRACY — 
 
 must be proved, 516. 
 criminal conspiracy, 515. 
 need not be alleged, when, 65. 
 must he alleged, when, 65. 
 
 CONSPIRATORS — 
 who are, 514, 516. 
 
 when acts of each admissible against others, 514, 516. 
 correspondence between, 516. 
 mode of proof, 514, 517. 
 acquittal or death of one, 518. 
 
 CONSTABLE — 
 
 certificate of, 125. 
 return of, 220. 
 
 as res gestce, 426. 
 statement of, when making levy, res gestoB. 486. 
 
 CONSTRUCTION — 
 
 intention of parties, how ascertained, 373. 
 
 parol evidence as to intent of parties not admissible, 269. 
 
 rules of construction, 368, 270. 
 
 parol, to show meaning of characters, 368, 
 
 technical expressions, 268. 
 
 explain abbreviations, 368. 
 
 ambiguity, 368, 270, 378, 379. 
 
 show circumstances of the case, 268. 
 surrounding, 274, 275. 
 proof of custom and usage in aid of, of contract, 376, 377. 
 
 form of expression, 377. 
 meaning of words interpreted by usage, 392. 
 preliminary negotiations and conversations, 396. 
 of wills, 389. 
 
 CONTEMPORANEOUS ORAL CONTRACT MERGES IN WRITING - 
 presumption as to, 364. 
 
 where instrument does not purport to be complete, 265. 
 where written instrument appears to be complete, 865. 
 Pennsylvania rule, 265. 
 in aid of writing, 303. 
 
INDEX. 751 
 
 References are to pages. 
 
 CONTENTS OF WRITINGS — 
 provable by parol, 243, 245. 
 when not between parties, 241. 
 
 when instrument beyond the jurisdiction of the court, 341. 
 placards, 245. 
 notices, 245. 
 inscriptions on monuments, 345. 
 
 CONTINUANCE — 
 
 presumption as to, of thmgs, 633. 
 domicile, 625. 
 solvency, 625. 
 residence, 635. 
 infancy, 625. 
 partnership, 625. 
 sanity or insanity, 636. 
 character and habits of person, 636. 
 
 CONTRACT— 
 
 where written appears to be complete, 265. 
 
 pleading of, 63. 
 
 rule in Pennsylvania, 265. 
 
 parol proof to reform, 265. 
 
 written merges contemporaneous oral, 364 
 
 time of performance of, 370. 
 
 where instrument does not purport to be complete, 263. 
 
 plaintiff cannot show, void by statute of frauds under general denial, 45. 
 
 defendant may show that contract really made under general denial, 45. 
 
 alleged by plaintiff was never delivered, 45. 
 breach of, how alleged and proved, 53. 
 annexing incident to, by parol, 363. 
 
 surrounding circumstances in aid of construction of, 368, 275, 
 by public officer, 404. 
 
 'proof of expression in aid of construction of, 377. 
 proof of custom and usage in aid of construction of, 276, 279. 
 latent ambiguities, 278. 
 patent ambiguities, 281. 
 custom and usage annexed to, 383, 284. 
 meanings of words in, interpreted by usage, 292. 
 unilateral, what are, 395. 
 
 want of consideration of may be shown by parol, 300. 301. 
 consideration different, may be shown by parol, 300, 301. 
 parol to complete a, of which writing is only part, 303. 
 collateral oral, 305. 
 
 under statute of frauds, not to be shown by parol, 318. 
 memoranda must contain the whole, 319. 
 all memoranda must be read together as part of, 319. 
 when bills of lading may be explained by parol, 319, 
 subsequent change of, 320. 
 
752 - INDEX. 
 
 Beferences are to pages. 
 CONTRACT (continued)— ' 
 
 time for performance may be enlarged by parol, 330. 
 
 extension of time of payment may be shown by parol, 330. 
 
 relation of parties to, how shown, 333. 
 
 parol superseding written, 334. 
 
 parol when only part is put in writing, 334. 
 
 conditions upon which it was delivered, 339. 
 
 mistake in, maybe shown by parol, 334. 
 
 written warranty cannot be varied by parol, when, 834i 
 
 fraud in obtaining, 335. 
 
 written may be varied by parol, when, 335. 
 
 fraud to do away with, 355. 
 
 of corporation, presumed legal, 379. 
 
 parol, of corporation, valid, 388. 
 
 CONTRADICTORY STATEMENTS — 
 proof of, 25, 36, 37, 38. 
 party calling witness may show, 28, 
 unwilling witness, 38. 
 
 •CONTRADICTING WITNESS — 
 
 other than party, 33. 
 
 laying foundation for, 432. 
 CONTRIBUTORY NEGLIGENCE — 
 
 proof of, under general denial, 46. 
 
 burden of proof of, 350. 
 
 presumption as to, 350, 610. 
 ^CONVERSATION — 
 
 interested party may testify to, same as executor, 165, 
 what is same, 165. 
 
 prior, merged in contract, when, 364, 396. 
 ■CONVERSION — 
 
 how pleaded, 51. 
 
 evidence of loss, delay, etc., 53, 
 
 demand necessary, 259. 
 CONVEYANCE — 
 
 presumption as to, 645. 
 CONVEYANCER — 
 
 communications to witnesses as a, 90. 
 CONVICTION — 
 
 how proved, 21. 
 
 by cross-examination, 21. 
 
 sustaining witness impeached by proof of, 28. 
 ■COPIES — 
 
 of records, 334. 
 
 examined, proof of, 284. 
 
 certified, when proof, 335, 236, 
 
 used to refresh memory, 468. 
 
INDEX. 753 
 
 References are to pages. 
 COPIES (continued) — 
 lithographic, 235. 
 photographic, 335. 
 equivalent to exemplification, 334, 
 general records of the nation, 333. 
 by whom certified, 335. 
 secondary evidence, vehen, 239. 
 of copy, not evidence, 339. 
 
 COPY— 
 
 examined, proof when, 334 
 
 how made, 334. 
 
 in what language must be made, 334 
 by whom to be certified, 335. 
 lithographic, 335. 
 photographic, 235. 
 equivalent to exemplification, 334. 
 general records of the nation, 235. 
 secondary evidence, when, 239. 
 of a copy, not evidence, '339. 
 
 CORONER'S JURY — 
 
 prisoner's examination before, 318. 
 
 CORPORATION — 
 
 ultra vires, burden of proof, 363. 
 
 charter, proof of, 252, 377. 
 
 acceptance of charter presumed, when, 377. 
 
 books of, 252, 381, 478. 
 
 ■one giving contract to, is estopped, 125. 
 
 ■officers of, competent to testify against representative of deceased party, 
 
 153, 166. 
 statement of manager of, 209. 
 evidence to charge, for act of agent, 317. 
 proof of existence of, 375. 
 ■courts take judicial notice of, 376. 
 legislative sanction may be shown, 376. 
 certificate of organization, pi-oof of, 377. 
 admission of, competent, 378. 
 estopped, when, 378. 
 party dealing with, estopped when, 378. 
 powers of, 379. 
 
 authority of agent must be shown, when, 879, 381. 
 contracts within the scope of, 379. 
 illegality of contract of, not presumed, 379. 
 parol contracts of, valid, 380. 
 acts of, 379. 
 
 acts of, presumed to be legal when, 397. 
 seal of, necessary, 380. 
 torts of, 380. 
 48 
 
754 INDEX. 
 
 Beferences are to pages. 
 
 CORPORATION (continued) — 
 torts of agents, 380. 
 board of directors of, 380. 
 resolutions of, 382, 483. 
 record book of, 480. 
 certificates of stockholders, 480, 
 rule book of, 480. 
 report of, 481. 
 
 subscription book for stock, 481. 
 minutes of, 481. 
 
 rules for conduct of employees, 481. 
 printed notice to passengers, 481. 
 authentication of records, 483. 
 
 CORPORATOR — 
 
 competent witness as against a decedent, 153, 166. 
 
 CORPUS DELICTI — 
 
 must be proved, 661. 
 
 how proved, 663. 
 
 discovery of a body in case of murder, 663. 
 
 burden of proof of, 659. 
 
 cause of death, 663. 
 
 infanticide, 663. 
 CORRESPONDENCE — 
 
 when admissible, see Letters. 
 CORROBORATION — 
 
 of accomplices, 145, 146. 
 
 in treason, 383, 386. 
 
 in perjury, 384, 386. 
 
 of prosecutrix in rape, 19. 
 
 by proof of other assaults. 19. 
 
 by proof of prior, 383, 386. 
 
 consistent statements, 35. 
 
 reputation for chastity of prosecutrix, 36. 
 
 by statement of deceased attesting witness, 38. 
 
 wife competent to testify in, of husband, 147. 
 CORROBORATIVE EVIDENCE — 
 
 relevancy of, 15, 18. 
 
 abuse of prosecutrix at another time, 19. 
 
 proof of other assaults, 19. 
 
 of consistent declarations made at a prior time, 25. 
 
 sustaining witness impeached by proof of conviction for crime, 28. 
 
 party cannot give independent proof tending to sustain collateral mat- 
 ters, 33. 
 COUNSEL — 
 
 privileged communications to, 85, 
 
 privileged from testifying to matters received professionally, 84 
 to matters committed to paper in course of employment, 84. 
 
INDEX. 755 
 
 References are to pages, 
 COUNSEL (continued) — 
 
 will not be compelled to disclose or produce papers, 84. 
 cannot reveal matters during or after termination of employment, 84, 
 immaterial whether client is party to action or not, 85. 
 presumption that all communications between, are confidential, 85, 
 burden of proving relationship is upon whom, 85. 
 any one the client supposed to be an attorney is bound, 85. 
 communications are forever inviolable, 85. 
 refusal of attorney to act, effect of, 85. 
 
 objection to testimony, part competent and part incompetent, 85. 
 court must strike out incompetent testimony, 85. 
 where counsel denies relation, 85. 
 court must determine when relation exists, 85. 
 what communications come within the rule, 85. 
 protection extends to interpreter, 86. 
 
 purpose contemplated in violation of law not privileged, 86. 
 communications after commission of crime are privileged, 86. 
 instructions in regard to making a will are privileged, 86. 
 as to acts of testator in making a will are, 87. 
 instructions by testator as to will are, 87. 
 
 information obtained from documents admitted for inspection, 87. 
 cannot testify that client held deed for benefit of another, 87. 
 pleading not regarded as privileged, 87. 
 
 where two or more consult an attorney for mutual benefit, 87. 
 letters passing between, and client are confidential, 87, 
 papers executed between, are confidential, 87. 
 when may be compelled to produce papers, 87, 
 may be compelled to deliver papers, 88. 
 conversation of two parties in presence of, not privileged, 88. 
 communication to, in presence of third party, not privileged, 88, 
 objections to confidential communications, how taken, 88. 
 client not obliged to disclose the opinion of, 89, 
 party testifying, effect of, 89. 
 - cannot produce papers, when, 89. 
 employed as a conveyancer, 89, 
 when is a party, 90. 
 protection perpetual, when, 90. 
 communications not privileged, when, 90. 
 between principal and agent, 90. 
 between trustee and cestui que trust, 90. 
 facts observed by legal adviser, 91. 
 where communications are for an unlawful purpose, 91. 
 when made before an attorney was employed, 93. 
 party calling attorney waives privilege, 92. 
 majority of parties may waive privilege, 93. 
 statements to be communicated to others not privileged, 93. 
 proof of payment of attorney to client not privileged, 94, 
 admissions of client, when, 213. 
 
756 INDEX. 
 
 Eeferences are to pages. 
 COUNT — 
 
 pleadings, 55, 57. 
 COUNTER-CLAIM — 
 
 instrument set up as, 64 
 
 how destroyed, 64 
 
 under allegation of set-off, 66. 
 
 in action for divorce, either party may testify where it is relevant, 105. 
 
 where passed upon, party cannot sue for balance, 115. 
 
 COUNTERPART — 
 
 original evidence, when, 244, 246. 
 must be accounted for, 316. 
 before secondary evidence admissible, 334 
 COUNTY — 
 
 courts take judicial notice of, 193. 
 COURTS — 
 
 take judicial notice of — 
 
 all the sovereigns of the world, 181. 
 
 national flag, 191. 
 
 currency of nation. 181. 
 
 public seal, 181, 186. 
 " acts, 181. 
 
 messages, 183. 
 statute, 181. 
 treaties, 181. 
 
 census, 183. 
 
 official journal, 183. 
 
 wars, 184. 
 
 weights and measures, 184 
 
 ports, 184 
 
 navigable rivers, 184. 
 
 geographical position of cities and towns, 184 
 
 charters, 184. 
 
 law of nations, 185. 
 
 general usage, 1&5. 
 
 holidays, 185. 
 
 custom, 185. 
 
 ofiBcial signature, 185. 
 
 proclamation, 186. 
 
 signature of governor, 186. 
 
 public history, ]84. 
 
 general election, 186. 
 
 oflBcial certificate, 186. 
 
 of all days, 186. 
 
 railroads, 187, 197. 
 
 contents of bible, 187. 
 
 meaning of words "beer," "brandy," " whisky," 187, 
 
 telephones, 187. 
 
 public boundaries, 189. 
 
INDEX. 75T 
 
 References are to pages. 
 COURTS (continued) — 
 
 take judicial notice of (continued) — 
 
 newspapers, 190. 
 
 mortality tables, 190. 
 
 geographical matters and political divisions, 193. 
 
 counties, cities, towns, 193. 
 
 foreign statutes, 193. 
 
 federal courts, 194. 
 
 records and judicial proceedings of, 337. 
 
 certified copies, 334. 
 
 examined copies, 334. 
 
 exemplification, 235. 
 of one state cannot talie judicial notice of statute of another state, 183. 
 admissibility of shop-books, question for, 344. 
 must determine suflBciency of notice to produce papers, 246. 
 
 of search for papers, 346. 
 take notice of photographs, 259. 
 must determine sufficiency of evidence to go to jury, 848. 
 
 whether statement is res gestae, 485. 
 
 COVENANT — 
 recitals in, 118. 
 proof of instrument, 645. 
 
 eOVEBTURE — 
 
 husband and wife, 105, 108, 
 
 CREDIT OF WITNESSES— 
 how shown, 706. 
 
 CREDITOR — 
 
 declaration of assignor for benefit of, 511. 
 
 as witness against decedent, 153. 
 
 debtor competent to testify against representatives of, 150, 153. 
 
 action by, who are competent witnesses, 161. 
 
 must show fraud, 358. 
 
 action by, to set aside fraudulent conveyances, 358, 359. 
 
 CRIME — 
 
 burden of proof of, 361. 
 
 proof of one as proof of another, 356. 
 
 ignorance of law as an excuse, 641, 656. 
 
 sustaining witness impeached by proof of conviction of, 28. 
 
 CRIMEN FALSI— 
 what is, 140. 
 
 witness, incompetent by, 140. 
 how removed, 140. 
 
 CRIMES — 
 
 rendering witness incompetent, 140. 
 
75S INDEX. 
 
 Eeferences are to pages. 
 CRIMINAL CASES — 
 
 license must be proved by defendant, when, 44 
 relevancy of evidence in, 8. 
 not withip the issue, inconapetent, 41. 
 character of prisoner is relevant, 22. 
 defendant may always show good character, 22. 
 
 cannot be compelled to testify, 73. 
 prisoner as a witness — 
 
 who may take advantage of, 74 
 
 judge must decide who entitled to privilege, 74 
 
 when privilege invoked, 74 
 
 possibility of danger is for the court, 74 
 
 privilege extends to particular facts, 74 
 
 prisoner cannot be compelled to try on shoes, 74 
 
 no one but prisoner can object, 74. 
 
 court must instruct him as to his privilege, 74. 
 
 on cross-examination refuses to answer, 74 
 
 exemption from liability by statute, effect of, 75. 
 
 statute of limitations as to crime, effect of, 75. 
 
 waiver of privilege by witness, 76. 
 
 voluntarily answering in part, effect of, 76. 
 
 party himself as a witness, his attorney may object, 76. 
 
 claiming the privilege is no presumption against the witness, 76. 
 neither husband nor wife competent to testify against each other in, 141. 
 accomplice, competent witness, 145. 
 examination to the voir dire, 215. 
 confession by party when drunk, 217. 
 statement made by prisoner before a coroner's jury, 318. 
 people must show that interpreter gave exact words of confession, 319. 
 jury may view premises, 856. 
 pieces of ears evidence, 358. 
 hide sold by defendant, 257. 
 underclothing of prosecutrix, 357 
 clothing worn by deceased, 357. 
 map of building set fire, 356. 
 2-ray process admissible, when, 261, 
 living under an assumed name, 207. 
 other frauds may be shown, 356. 
 ignorance of the law excuses no one, 508. 
 presumption as to manufacturing of evidence, 633. 
 
 CRIMINAL CONVERSATION — 
 
 wife, when competent to prove, 106. 
 
 in action for, wife competent witness for defendant, 106. 
 
 wife not competent to testify for husband in action for, 106. 
 
 language and conduct between husband and wife, competent when, 563. 
 CRIMINAL PROSECUTION — 
 
 presumptions in favor of innocence, 655. 
 
 good character of prisoner presumed, 656. 
 
INDEX. ^59 
 
 Beferences are to pages. 
 
 CRIMINAL PROSECUTION (continued) — 
 absence of motive must be shown, 657. 
 prisoner must show alibi, 657. 
 prisoner must show insanity, 657. 
 communication to defendant, competent when, 653. 
 people must show corpus delicti, 661. 
 
 people must show discovery of body in case of murder, 682. 
 people must show cause of death, 663. 
 people must show infanticide, 663. 
 presumption of guilt, 664. 
 other crimes may be shown, when, 666. 
 people may show malice, 667. 
 people may show attempt to commit the same crime at another tim^ 
 
 668. 
 people may show threats of prisoner, 668. 
 people may show recent possession of fruits of crime, 670. 
 people may show unexplained suspicious appearances, 671, 
 people may show attempts to stifle investigation, 671. 
 people may show concealment, disguise and flight, 671. 
 people may show silence of accused when charged with crime, 673. 
 people may show spoliation of evidence by prisoner, 673. 
 people may show affectation of grief, 673. 
 people may show complication of evidence by prisoner, 673. 
 people must show identity of person or thing, 673. 
 defendant may show threats by deceased, 669. 
 
 CRIMINATING ANSWERS — 
 
 no one is obliged to make, 73. 
 
 who may take advantage of, 74. 
 
 judge must decide who entitled to privilege when privilege can be in- 
 voked, 74. 
 
 privilege extends to particular facts, 74 
 
 prisoner cannot be compelled to try on shoes, 74. 
 
 court must instruct him as to his privilege, 74. 
 
 no one but prisoner can object, 74. 
 
 witness on cross-examination may refuse to answer, 74» 
 
 exemption from liability by statute, effect of, 75. 
 
 statute of limitation as to crime, effect of, 75. 
 
 waiver of privilege by a witness, effect of, 76. 
 
 voluntarily answering in part, effect of, 76, 
 
 party himself as a witness, his attorney can object, 76. 
 
 claiming the privilege is no presumption against the witness, 76. 
 
 cross-examination as to collateral facts, 79, 80. 
 
 exceptions to, 81, 83. 
 CROSS-EXAMINATION — 
 
 as to contents of writing, 710. 
 
 proper mode pf, 703, 713. 
 
 witness cannot be asked "if he has been impeached," 31, 711. 
 
 if an action is pending against him for false swearing, 31, 704, 71ft 
 
^60 INDEX. 
 
 References are to pages, 
 
 CROSS-EXAMINATION (continued) — 
 
 conviction may be pi-oved by, 31, 705, 709. 
 
 indictment cannot be shown by, 706, 709. 
 
 inquiry as to general reputation of a witness, 25, 706. 
 
 party may cross-examine his own witness, 87, 700, 703. 
 
 collateral matters generally not allowed, 31, 701, 704. 
 
 irrelevant matter to test moral sense, 31, 707. 
 
 to test accuracy and veracity, 31, 708, 710. 
 
 party bound by collateral facts, 31, 705, 707. 
 
 tending to show temper, disposition or conduct of witness, 33, 706. 
 
 witness cannot be cross-examined in order to contradict him, 33, 705. 
 
 motives of witness may be shown by independent evidence, 88, 7Q5. 
 
 relation between the witness and party may be shown, 33. 
 
 witness' attention must be called to time and place, 33. 
 
 precise date not necessary, 33. 
 
 inconsistent statements in writing, 34, 710. 
 
 as to bias, 37, 707. 
 
 of prisoner, 77, 78, 79, 80. 
 
 degrading questions — 
 
 as to collateral facts, 79, 80. 
 
 exception to incriminating answers, 83. 
 
 need not answer immaterial question, 83. 
 
 judge must decide as to relevancy of question, 83. 
 
 when witness may decline to answer, 83. 
 
 when question is relevant, party cannot object, 83. 
 decedent's estate — 
 
 witness may state whole transaction. 158. 
 
 party cannot show transaction called out by him on, 166. 
 
 of defendant as to a writing with decedent, does not make him a 
 competent witness, 174. 
 witness must show injured linibs, when, 359. 
 
 CURRENCY — 
 
 courts take judicial notice of, 181. 
 CURTESY — 
 
 competency of tenant by, 166, 167. 
 CUSTODY — 
 
 proper, what is, 333. 
 CUSTOM — 
 
 as hearsay, 419. 
 
 provable to explain writing, 265. 
 
 by what witnesses proved, 383, 390. 
 
 local, how proved, 389, 390, 393. 
 
 must be pleaded, 318. 
 
 courts take judicial notice of general, 185. 
 
 annexed to writing by parol, 363, 383, 384. 
 
 to ascertain and, explain the meaning of parties, 276. 
 
 adding incident to contract by, 393. 
 
INDEX. 761 
 
 Be/erences are to pages. 
 
 CUSTOM (continued) — 
 when not valid, 292. 
 meaning of words interpreted by, 292. 
 qualities of, 287. 
 local, notice of must he shown, 287, 
 
 D. 
 
 DAMAGES — 
 
 special, must be pleaded, 48. 
 
 measure of, in general, 676. 
 
 libel, 694. 
 
 to what time computed, 688. 
 
 prospective, 682. 
 
 bodily injuries, how alleged, 68. 
 
 pain and mental suffering may not be alleged, 69. 
 
 manner of proving, 676, 700. 
 
 presumption of, 677. 
 
 expert evidence of value, 677. 
 
 witnesses that may give opinions, 678. 
 
 offers made for property, 685. 
 
 price paid, sales, 686. 
 
 by sales of other property, 687. 
 
 sum inserted in a deed, 690. 
 
 when there is no market value, 691. 
 
 for work, labor and services, 691. 
 
 opinions as to value of services, 693. 
 
 in breach of promise cases, 693. 
 DATE — 
 
 alteration of, in will, 390. 
 
 by proof of delivery, 230. 
 
 post-mark of envelope, 280. 
 
 how shown, 230, 316. 
 
 of commercial paper, 316. 
 
 presumptions as to, 316, 619. 
 
 when material, 220. 
 DAYS — 
 
 courts take judicial notice of all days, 186. 
 
 DEADLY WEAPONS — 
 
 use of, pi'esumption of malice, 667. 
 DEAF AND DUMB — 
 
 witness competent, 133. 
 DEATH — 
 
 proof of, 396, 629. 
 
 presumption of, 396, 638, 639. 
 
 letters testamentary as proof of, 117. 
 
 burden of proof of, 396. 
 
 inquiry necessary, 396. 
 
762 INDEX. 
 
 References are to pages, 
 DEATH (continued) — 
 
 presumption of life, 637. 
 
 amount of proof of, required, 629. 
 
 reputation in family, 629. 
 
 residence of absentee, 629. 
 
 presumption of, after seven years, 396, 631. 
 
 before seven years, 629. 
 not been heard of, 629. 
 presumption as to absentee, 628. 
 of party before completion of examination of opposite party, 159. 
 
 DEBT — 
 
 how pleaded, 41, 63. 
 
 former recovery, 109. i 
 
 statute of limitation, 47. 
 
 discharge from, must be pleaded, 47. 
 
 vritness may state that he paid his own money upon decedent's, 157. 
 
 payment on executions to sheriff binds debtor, when, 213. 
 
 presumed to continue, 3T2. 
 
 assignment of, carries collateral, when, 873. 
 
 assignment of, presumed in equity, when, 373. 
 
 agreement to assign under statute of frauds void, when, 373. 
 
 action to charge devisee with ancestor's, 387. 
 
 gift of, as an advancement, 388. 
 
 DECEASED PERSONS — 
 
 incompetency of witnesses, 147, 150. 
 
 as to conversations and personal transactions with, 150, 156. 
 
 proof of inconsistent statement after, 34, 38, 
 
 DECLARATIONS — 
 dying, 451. 
 conspirators, 514, 
 
 of agent as against principal, 308, 496. 
 deceased attesting witnesses, 37. 
 in disparagement of title, 457. 
 of perambulations, 448. 
 family, as to pedigree, 425, 439. 
 partners, 203. 
 against interest, 456. 
 as to domicile, 13. 
 as to pedigree, 427, 430. 
 as to title, 446. 
 of former owner, 460. 
 •of owner, 450. 
 •of decedent, binding, 461. 
 his personal representatives, 314, 
 as res gestce, 485, 490. 
 husband binds wife, 399. 
 ■by interpreter, 453, 
 
INDEX. 763 
 
 "References are to pages. 
 
 DECLARATIONS (continued) — 
 
 of wife as to reason for leaving husband, 13, 
 
 of party, 199. 
 
 laying foundation for, 203. 
 
 by talking in sleep, 202. 
 
 of self-harming statements, 303. 
 
 of holder of commercial paper before due, 303. 
 
 of holder of commercial paper after due, 303. 
 
 of vendor in possession, 203. 
 
 calling for reply, 203. 
 
 in presence of opposite party, 203. 
 
 of interpreter, 208. 
 
 of agent, as part of res gestce, 308. 
 
 of manager of corporation, 209. 
 
 of railroad station agent, 210. 
 
 of principal, does not bind surety, when, 310. 
 
 of surety, bind principal, when, 210. 
 
 of guarantor, bind principal, when, 311. 
 
 of donor as to gift, 330. 
 
 of party, 320. 
 
 of constable's return, 230. 
 
 whole must be taken together, 331. 
 
 of administrator, 383. 
 
 of executors, 382. 
 
 of trustee, 383. 
 
 of partner as to business, 410. 
 
 of partners after dissolution, 410. 
 
 as to pedigree, 435. 
 
 of general and public interest, 415. 
 
 as to private rights, incompetent, 416. 
 
 common report as evidence, 418. 
 
 must be made before controversy, 418, 
 
 verdicts as, 419. 
 
 judgments as, 419. 
 
 what matters involve public or general interest, 430. 
 
 declarant must be dead, 421, 430. 
 
 ancient history where author is dead, 431. 
 
 local history inadmissible, 431. 
 
 history must relate to public matters,. 431. 
 
 ancient and general history as proof of license, .431, 
 
 must be made ante litem motam, 433, 
 
 must be made before lis mota, 423, 
 
 post litem, motam,, 423. 
 
 witness need not specify from whom he heard, 423. 
 
 particular facts, 434. 
 
 maps as, 434. 
 
 facts as to family history, 435. 
 
 of deceased persons as to genealogy of family, 437. 
 
7Ci INDEX. 
 
 Seferences are to pagea, 
 
 DECLARATIONS (continued) — 
 
 of mother as to legitimacy of child, 428. 
 
 of man as to marriage, proper, 428. 
 
 of party as to age, 428. 
 
 as to date of birth, 429. 
 
 in letters of fathers as to age of child, 439. 
 
 of living father as to pedigree, 430. 
 
 admissible to prove illegitimacy of declarant, 430, 
 
 form of, immaterial, 432. 
 
 entries in family bible, 432. 
 
 conduct of parties to alleged marriage, 433. 
 
 public entries of births, 435. 
 
 ring stating date of person's death, 436. 
 
 inscriptions on tombstones, 437. 
 
 coat armor and mural inscriptions, 436. 
 
 memoranda in almanac, 437. 
 
 of deceased person as to his legitimacy, 437. 
 
 of husband as to legitimacy of wife, 487. 
 
 of v?ife as to legitimacy of husband's family, 437. 
 
 in course of duty, 438. 
 
 entries in any public record, 439. 
 
 entries made by officials, 439. 
 
 certificate of protest of notary, 440. 
 
 entries made by jailer, 440. 
 
 recitals of public acts and statutes, 440. 
 
 entries by deceased attorney, 441. 
 
 entries by any person in the line of his duty, 443. 
 
 must be contemporaneous, 443. 
 
 of owners, 450. 
 
 against interest ; general rules as to, 456. 
 
 against pecuniary interest, 457. 
 
 of deceased grantor, 460. 
 
 of decedent against his representatives, 461. 
 
 of testator as to lost will, 461. 
 
 shop-books, 463. 
 
 memoranda given under former proceedings, 468, 473. 
 
 mortuary tables, 477. , 
 
 ballot-boxes, 478. 
 
 newspaper advertisements, 478. 
 
 books of science, 478. 
 
 bill-heads, 478. 
 
 market report, 478. 
 
 hotel register, 478. 
 
 entries in books of corporation, 478. 
 
 train-report sheet, 479. 
 
 record books of corporation, 480. 
 
 of assignor against assignee, 506. 
 
 before vendor became owner, 507. 
 
INDEX. 765 
 
 Beferences are to pages, 
 
 DECLARATIONS (continued) — 
 
 of vendor of chattels and choses in action, 508, 
 of assignor for benefit of creditors,' 511, 
 of co-conspirators, 514 
 as to ownership, 518. 
 
 DECLARATIONS AGAINST INTEREST — 
 what are, 456. 
 pecuniary, 457. 
 conditions precedent to, 459. 
 
 DECLARATIONS AS TO STATE OP HEALTH — 
 when competent, 499. 
 
 DECLARATIONS IN COURSE OF DUTY — 
 what are, 439. 
 entries in oflScial book or registry, 439. 
 
 DECLARATIONS OF DECEASED GRANTOR — 
 
 when evidence, 460. 
 
 when not evidence, 460, 
 DEEDS — 
 
 ancient, prove themselves, 253, 
 
 execution, how proved, 226, 237, 
 
 signing, 645. 
 
 delivery, 644. 
 
 estoppel by, 120. 
 
 when presumed, 645. 
 
 recitals in, conclusive when, 121, 
 
 admission of party in place of copy, not evidence, 283, 239. 
 
 contents may be proved by parol, when, 240. 
 
 parol evidence in aid of construction of, 268, 270. 
 
 to identify the person or thing, 271. 
 
 to identify the property in, 272. 
 
 intention of parties, how ascertained, 374. 
 
 relation of parties to, how shown, 332. 
 
 when shown to be a mortgage, 328. 
 
 burden of proof as to conditions of, 842, 
 
 possession under, 446, 646. 
 
 declarations accompanying possession, 446, 
 
 modern exercise of rights, 449. 
 
 holder of, presumed to be legal holder, 645. 
 
 acceptance by grantee presumed, 645. 
 
 presumed to have been delivered before execution, 646, 
 
 DEFAULT — 
 
 judgment by, as an estoppel, 108, 120, 
 
 DEFENDANT — 
 
 evidence relevant as against one of two or more, 11. 
 in criminal case as, witness may be impeached, 28. 
 
7G6 ♦ INDEX. 
 
 Beferences are to pages, 
 DEFENSES — 
 
 after suit brouKht, 65. 
 
 burden of proof of, 341, 359. 
 
 affirmative must be proved by whom, 859. 
 
 bona fide purchaser for value, 359. 
 
 forfeiture, 360. 
 
 warranties, 360. 
 
 mistake, 360. 
 
 exemption, 860, 
 
 license, 361. 
 
 alibi, 861. 
 
 self-defense, 361. 
 
 release, 361. 
 
 statute of limitations, 361. 
 
 ultra vires, 362. 
 
 breach of condition, 363. 
 
 that defendant was under the age of fourteen years, 863. 
 
 insanity of defendant, 362. 
 
 illegality of contract, 363. 
 
 usury, 86* 367. 
 
 to a negotiable paper, 365. 
 
 DEHORS — 
 
 to explain words, 268. 
 
 to aid in construction, 369. 
 
 to identify person or thing, 271. 
 
 custom and usage, 283, 284. 
 
 consideration of contract, 300. 
 
 evidence to complete an entire agreement of which a writing is only a 
 part, 303. 
 
 evidence as to wills, 889, 394, 
 DELIVERY — 
 
 parol to vary time of, of goods, 866. 
 
 of writing, presumption of, 645. 
 
 of goods by entry in shop-books, 244 
 
 how alleged, 56. 
 
 proof of, 229, 374. 
 
 proof of posting, evidence of, 230. 
 
 condition upon which made, 329. 
 
 burden of proof of, 341. 
 
 of gift, necessary when, 374. 
 DEMAND — 
 
 necessary when, 359. 
 
 proof of, 359. 
 
 DEMONSTRATIVE EVIDENCE— 
 what is, 256. 
 view of premises, 256. 
 blood-stains, 256. 
 
INDEX. 767 
 
 References are to pages. 
 
 DEMONSTRATIVE EVIDENCE (continued) — 
 view of child to show relationship, 256. ' 
 photographs, 256. 
 torn bank-bills, 257. 
 
 photograph of child to show development, 257, 
 amputated foot, 257. 
 impressions of foot-prints, 257. 
 experiments, 257. 
 pieces of clothing, 257. 
 examination of woman, 257. 
 malformation, 257. 
 map, 257. 
 
 masks, lanterns, 258. 
 bullets, etc., 258. 
 
 pistol and cartridges taken from defendant, 258. 
 hide of cattle, 257. 
 physical examination, 258. 
 by Roentgen rays, 261. 
 
 DENIAL — 
 
 failure to deny admission, 43. 
 DEPOSITION — 
 
 use upon cross-examination, 699, 706. 
 
 contents of, cannot be shown by parol, when, 255. 
 
 contents may be shown by parol, when, 255. 
 DERIVING TITLE OR INTEREST — 
 
 meaning of, 162. 
 
 mesne conveyance, 162, 
 DESCRIPTION — 
 
 in general, 53, 59. 
 DESTRUCTION OF EVIDENCE — 
 
 presumption from, 672. 
 
 fraudulent destruction of instrument, effect of, 253, 
 DETECTIVE — 
 
 not an accomplice, 147, 
 DEVISE — 
 
 parol evidence to explain, 390, 391, 
 DEVISEE — 
 
 may testify in aid of another devisee, 164 
 
 may testify in aid of a contestant, 164. 
 
 action to charge with ancestor's debfj 387. 
 
 not named, 391. 
 
 ademption of property given, 394, 
 DILIGENCE — 
 
 search for original papers, 245. 
 DISCHARGE — 
 
 of written contract by parol, 320. 
 
76S INDEX. 
 
 References are to pages. 
 
 DISCRETION AND CAPACITY — 
 presumed, when, 637. 
 cross-examination limited by, 33, 705. 
 
 DISORDERLY HOUSE — 
 
 character of, how shown, 35. 
 
 DISPARAGEMENT OF TITLE — 
 
 declarations admissible in, 457. 
 DISSOLUTION — 
 
 of partnership, 410. 
 
 acts of partners after, 410. 
 
 DISTRIBUTEES — 
 
 bound by judgment against admiqistrator, 114 
 
 DIVORCE — 
 
 competency of husband and wife in, 105. 
 what plaintiff may show as a witness, 143, 
 
 DOCUMENTS — 
 
 attorney not bound to produce, 89. 
 not privileged, 89. 
 
 one who signs without examination is estopped, 135. 
 one having given currency to, not competent to discredit it, 130. 
 witness may testify that instrument has been altered, 158. 
 interested party may show contents in possession of decedent's repre- 
 sentatives, 167. 
 party cannot testify to contents of lost, when, 167. 
 indorsement of payment on, as evidence, 230. 
 duplicate, primary evidence, when, 334, 
 lithographic copies, 225. 
 photographic copies, 325. 
 printed copies, 325. 
 Attested, must be proved, how, 335. 
 •execution not necessary to be proved, when, 335, 336, 
 <3uly acknowledged, 336. 
 executed by public officer, 336. 
 execution, how proved, 236, 237. 
 proof of handwriting of attesting witnesses, 337. 
 declaration of maker as to execution of, 237. 
 proof of execution by maker, 338. 
 witness to handwriting of, must identify writer, 238. 
 acknowledgment of making, 339. 
 proof of sealing of, 339. 
 proof of delivery, 339. 
 .proof of posting, evidence of delivery, 330. 
 proof of, by one attesting witness, 331. 
 proof of, where all attesting witnesses are dead, 331. 
 proof of, where all attesting witnesses are out of jurisdiction, 331. 
 ancient, how proved, 333. 
 
INDEX, 769 
 
 References are to pages. 
 DOCUMENTS (continued) — 
 custody of ancient, 233. 
 
 pi'oduction of certified copies, proof of execution of original, 335. 
 by whom to be exemplified, 335. 
 production of ; proof of execution of, 835. 
 of laws of United States, 336. 
 legislative acts of states and territories, 336. 
 exemplifications, 335. 
 examined copies, 334 
 general records of nation, 335. 
 certified copies, 335. 
 
 records and judicial proceedings of state courts, 237. 
 public records of state not judicial, 337. 
 foreign acta of state, judgments, etc., 338. 
 foreign and interstate laws, 238. 
 no grades of secondary evidence of, 339. 
 contents of, may be proved by verbal proof on voir dire, 240. 
 contents of voluminous, may be proved by parol, 340. 
 appointment to public office may be proved by parol evidence, 340. 
 in the hands of the opposite party who refuses to produce, 341. 
 beyond jurisdiction of court, proved by parol, 341. 
 loss of, how proved, 343. 
 search for lost, 245, 346. 
 notice to produce, 346. 
 when need not be produced, 242. 
 that has accomplished its purpose, 244. 
 search for, 245, 246. 
 in the hands of a stranger, 351. 
 sufliciency of secondary evidence of, 353. 
 fraudulent destruction of, effect of, 353. 
 cannot be varied by parol, when, 262, 868. 
 fraud in obtaining, may be shown by parol, 363. 
 incomplete, may be aided by parol, 263. 
 custom, annexed to, by parol, 363. 
 where does not purport to be complete, 365. 
 where does appear to be complete, 365. 
 rule in Pennsylvania, 265. 
 parol not admissible to explain, 366. 
 
 surrounding circumstances in aid of construction, 368, 271. 
 custom and usage annexed to, 283, 384. 
 meaning of words interpreted by usage, 393. 
 UDilateral, what are, 295. 
 
 want of consideration of, may be shown by parol, 300, 301. 
 consideration different, may be shown by parol, 300, 301. 
 parol evidence to complete, when writing is only a part, 303. 
 subsequent changes of, may be proved by parol, 320. 
 time for performance may be enlarged by parol, 330. 
 time of payment may be changed by parol, 330. 
 
■770 INDEX. 
 
 References are to pages. 
 DOCUMENTS (continued) — 
 
 parol contract superseding, 334. 
 
 conditions upon whicli it was delivered, 329. 
 
 mistake in, may be shown by parol, 334. 
 
 fraud in obtaining, 335. 
 
 ■when may be contradicted by parol, 335. 
 
 as hearsay, 418. 
 
 as declarations, 434. 
 
 as res gestae, 493. 
 
 presumption as to, regular on their face, 619. 
 
 person offering altered, must explain, 645. 
 
 inconsistent statements in, how proved, 34. 
 
 not denied, need not be produced, 66. 
 
 DOMICILE — 
 
 declarations as to, 13. 
 
 declarations of wife, 13. 
 
 as proof of citizenship, 394. 
 
 as proof of alienage, 395. 
 
 of wife, that of husband, 395, 
 
 of child, that of parent, 395. 
 
 of soldier, 395. 
 
 of sailor, 395. 
 
 of student, 395. 
 
 is presumed to continue, 396. 
 
 of an illegitimate minor, 395. 
 
 statement of party when changing, 486. 
 
 presumption as to, 635. 
 
 DONOR — 
 
 declarations of, as against donee, 330, 461. 
 
 declarations of, as to advancement, 387. 
 
 acts and declarations in presence of, 520. 
 DOUBT — 
 
 prisoner entitled to benefit of, 659, 663. 
 
 DOWER — 
 
 tenant in, incompetent witness when, 149, 160. 
 competent witness, when, 149, 160. 
 
 DUCES TECUM — 
 
 non-production by stranger, 351. 
 lawful non-production by third party, 351. 
 
 secondary evidence cannot be given upon unlawful refusal to produce, 
 251. 
 
 DULY — 
 
 allegation that the thing was sufficient, 69. 
 DUPLICATE — 
 
 original, when, 3^4, 346. 
 
 must be accounted for before secondary proof allowed, 346. 
 
INDEX. ^lll 
 
 References arc to pages. 
 DURESS — 
 
 husband and wife, 637. 
 DUTY — 
 
 performance of presumed, 599. 
 DYING DECLARATIONS — 
 
 admissible in homicide, when, 451. 
 
 how impeached, 455. 
 
 of husband and wife against each other, incompetent, 144. 
 
 may be proved by parol, when, 254. 
 
 preliminary examination as to, 451. 
 
 declarant must be in extremis, 451. 
 
 it must appear that the declarant knew that he was beyond recovery 
 453. 
 
 lack of religious belief is immaterial, 453. 
 
 declarant must have been competent to testify, 453. 
 
 declaration of one of tender years, incompetent, 458. 
 
 must be confined to circumstances which led to death, 458. 
 
 must be confined to material matters, 454. 
 
 must be complete, 454. 
 
 weight given to, 455. 
 
 E. 
 
 EFFECT OF NOTICE TO PRODUCE — 
 
 instrument must be in the hands of the opposite party, 250. 
 
 party refusing to produce cannot use instrument, 250. 
 
 party must always show execution of original, 250. 
 
 notice to produce not sufficient to make document original, 250. 
 EJECTMENT (see Pleadings). 
 ENTRIES — 
 
 in the course of duty, 439, 443. 
 
 in shop-books, 463. 
 
 in books of corporations, 478. 
 
 by attorney, 441. 
 
 against interest, 460. 
 
 of decedent, competent as against his estate, 151. 
 
 of decedent, competent evidence for administrator, 160. 
 
 by principal, bind surety, when, 211. 
 
 when witness incompetent to state that, were made, 156, 167. 
 
 whole must be taken together, 221. 
 
 how proved, 326, 327. 
 
 as evidence of delivery of document, 339. 
 
 in hymn books, 433. 
 
 public, of birth, 435. 
 
 in official register, 439. 
 
 public, of marriage, 435. 
 
 of fact, 439. 
 
772 INDEX. 
 
 Beferences are to pages, 
 ENTRIES (continued) — 
 of notary public, 439. 
 of jailer, 440. 
 
 must be contemporaneous, 443. 
 by train dispatcher, 479. 
 proof of date on, evidence of, 330. 
 
 EQUITY— 
 
 all contracts may be varied by parol, 367. 
 
 deed shown to be a mortgage, 337. 
 
 mistake in contract, 334. 
 
 assignment of debt in, presumed when, 873. 
 ERASURE AND INTERLINEATION — 
 
 presumption as to, 644. 
 ESTOPPEL — 
 
 tenant estopped from denying title of his landlord, 130, 133. 
 
 must be alleged, when, 69. 
 
 a judgment is conclusive as against parties and privies of facts directly 
 in issue in the case, 108. 
 
 a judgment is conclusive as to construction of a contract, 108. 
 
 party producing record must show the subject is directly in issue, 109. 
 
 a judgment is immaterial as to strangers to the record, 109. 
 
 a judgment is immaterial as between party and stranger, 109. 
 
 conclusive between party and stranger in admiralty proceedings, 109. 
 
 judgment in rem conclusive as to status and condition of a party, 109. 
 
 as to lunacy of a person, 109. 
 
 on questions of a public nature, 109. 
 
 foreign judgments stand on same footing, when, 110. 
 
 confession of judgment, conclusive when, 110. 
 
 want of jurisdiction may be shown, when, 110. 
 
 fraud in procuring judgment may be shown. 111. 
 
 stranger may impeach judgment collaterally, 111. 
 
 party to judgment cannot impeach it collaterally, 111. 
 
 judgments of courts of limited jurisdiction, 111. 
 
 judgment against heirs not binding on administrator, 113. 
 
 decrees for sale of lunatic's estate bind everybody, 113. 
 
 action against surety binds principal and, 113. 
 
 "verdict in case of pedigree binds sti-augers, 113. 
 
 action against prior, by subsequent indorser, 113. 
 
 judgment by subsequent indorser against prior indorser is, 113, 
 
 judgment against agent is no bar against principal, 113. 
 
 judgment against deputy a bar against sheriflf, when, 113. 
 
 judgment against principal not conclusive as against surety, 113. 
 
 judgment against one joint trespasser no bar against others, 113. 
 
 judgment against one joint and several promisor, bar to action against 
 others, 114. 
 
 judgment against a party as executor not conclusive against him indi- 
 vidually, 111 
 
INDEX. 773' 
 
 References are to pages. 
 ESTOPPEL (continued) — 
 
 judgment against administrator binding on distributees, 114. 
 judgment against heirs and devisees not binding on administrator, 
 
 114. 
 judgment against ancestor, when binding on heirs, 114. 
 judgment against executor not binding on administrator de bonis non, 
 
 114 
 judgment against master, when bar as to servant, 114, 
 purchaser pending action bound by judgment, 114. 
 purchaser pending litigation bound by judgment, 114. 
 assignee of litigated right bound by litigation, 114. 
 where counter-claim is passed upon, party cannot sue for balance, 115. 
 iu second action for continued trespass, 115. 
 judgment in action for penalty not conclusive, when, 115. 
 judgment for one instalment of debt, conclusive when, 115. 
 judgment for fraud, bar to action upon warranty, 115. 
 judgment in trover, bar to action for goods sold, 115. 
 effect of appeal from judgment, 116. 
 judgment entered by consent, effect of, 116. 
 judgment must be pleaded, when, 116. 
 what defenses may be shown to judgment, 116. 
 judgment in criminal not evidence in civil cases, 116. 
 verdict of coroner's jury evidence in civil cases, 117. 
 parol evidence cannot be given to contradict recitals and records, 118. 
 may be amended by parol evidence, 118. 
 parties to judgment may be identified by parol, 119. 
 what is, 119. 
 
 licensee cannot dispute title of licensor, 120. 
 no acceptor of a bill of exchange can deny the signature of drawer, 
 
 130. 
 a person drawing by procuration cannot deny authority of agent, 130. 
 bailee cannot dispute title of bailor, 120. 
 agent cannot dispute title of principal, 130. 
 conflicting, neutralize each other, 121. 
 what acts work an, 123. 
 guarantor, when estopped, 134 
 indorser, when estopped, 134. 
 one who stands by and sees his property sold, 124 
 long acquiescence, 124. 
 officer estopped by certificate, 125. 
 one who signs without examination is estopped, 125. 
 one giving contract to corporation is estopped, 135. 
 infant cannot be estopped, 136. 
 intention necessary to, 137. 
 state not bound by, 137. 
 must be mutual, 137. 
 
 technical, will not shut out truth in insurance cases, 137. 
 preliminary proofs of loss do not create an, 137. 
 
J7i INDEX. 
 
 References are to pages, 
 ESTOPPEL (continued) — 
 
 when corporation is estopped by acts, 378. 
 
 party dealing with corporation estopped, when, 378, 
 
 ratification of acts of agent by corporation,. 379. 
 
 EVIDENCE — 
 
 definition of, 1. 
 
 primary, 3. 
 
 secondary, 239, 
 
 positive, 8. 
 
 presumptive, 3. 
 
 ■hearsay, 3. 
 
 parol, 3. 
 
 •circumstantial, 8, 9, 
 
 conclusive, 3, 
 
 direct, 3. 
 
 extrinsic, 271. 
 
 cumulative, what is, 3. 
 
 competent, 3, 4 
 
 relevant, 3, 7, 10, 41, 
 
 moral, 3. 
 
 satisfactory, 4. 
 
 sufficiency for jury, 343, 354» 
 
 relevancy of, 7, 9, 11, 41. 
 
 must come within the issue, 6, 11. 
 
 knowledge, proof of, 13. 
 
 given on a former proceeding between same parties, 474, 477. 
 
 to show that writing apparently absolute is not, 318. 
 
 EVIDENCE GIVEN ON A FORMER PROCEEDING — 
 
 when competent, 474. 
 
 cross-examination of witness, 474. 
 
 same parties, 476. 
 
 mode of proof, 476. 
 EXAMINATION — 
 
 viva voce, 32, 695, 730. 
 
 admissible when, 695, 730. 
 
 cross-examination as to collateral facts, 33, 695, 720. 
 
 cross-examination as to temper and conduct of witness, 695, 730, 733. 
 
 voir dire, 22, 133, 695, 730. 
 
 laying foundation for contradicting witness, 32, 695, 720. 
 
 attention of witness must be called to time and place, 33, 695, 730. 
 
 when competency must be shown, 132. 
 
 objection must be to improper evidence, 133. 
 
 witness incompetent from extreme youth, 133, 
 
 deaf and dumb person not incompetent, 133. 
 
 death of a party before, does not affect testimony already taken, 159. 
 
 by the plaintiff of defendant does not make defendant a competent wit- 
 ness, 174. 
 
INDEX. 775 
 
 References are to pages. 
 EXAMINED COPIES — 
 
 when evidence, 234. 
 
 how made, 334 
 
 in what language must be made, 234, 
 EXCEPTIONS — 
 
 what are, 721. 
 
 EXCEPTIONS AND PROVISOS — 
 how averred and proved, 44. 
 negativing of, 44. 
 
 EXCLUDED FROM PUBLIC POLICY — 
 
 communications between husband and wife, 103. 
 
 communications between attorney and client, 84. 
 between physician and patient, 98. 
 between priest and penitent, 101. 
 
 state secrets, 103. 
 
 grand jurors' proceedings, 102. 
 
 indecent, no reason for rejecting, 6. 
 
 amount necessary to prove perjury, 385. 
 treason, 383, 386. 
 
 objection to competency, 715. 
 when must be taken, 730. 
 
 examined copies, 234. 
 EXECUTION — 
 
 of writings, how proved, 226, 227. 
 
 delivery must be sliown, 68. 
 
 not necessary to be proved, when, 325, 226. 
 
 acknowledgment of, by maker, 227. 
 
 original must be produced, 333. 
 
 want of, of instrument, shown by parol, 863. 
 EXECUTIVE — 
 
 judicial notice of acts of, 182, 200. 
 
 acts of, how proved, 234, 239. 
 EXECUTOR — 
 
 admissions by, 214 
 
 judgment against, not conclusive individually, 114 
 
 judgment against, binding on distributees, 114. 
 
 judgment against heir and devisees not binding on, 114. 
 
 no party can testify to a personal transaction with, as against, 147. 
 
 husband may testify in favor of his wife, when, 149. 
 
 wife may testify in favor of her husband, when, 149. 
 
 widow, when competent in action against heirs, 149. 
 
 declarations of, not admissible, 151. 
 
 entries of decedent competent as against his estate, 151. 
 
 incompetent to testify in his own interest, 151. 
 
 witness cannot testify that a conversation took place, 151. 
 
 when witness cannot testify that he never heard of sale, 151. 
 
 stockholders competent to testify against corporations, 153. 
 
776 INDEX. 
 
 References are to pages. 
 EXECUTOR (continued) — 
 
 oflScers competent to testify against corporations, 153. 
 
 next of kin incompetent to testify against estate of deceased person, 153- 
 
 heirs competent witnesses, when, 153. 
 
 purchase of property of decedent at official sale, competent, 154 
 
 when witness cannot testify that he saw a paper signed by decedent, 154. 
 
 ■when witness cannot testify that he saw decedent sign a paper, 154. 
 
 surety cannot testify in favor of principal's estate, 155. 
 
 putting in instrument signed by decedent in evidence, effect of, 155. 
 
 maker of note competent to testify in favor of indorser, 155. 
 
 indorsers competent in actions between tliemselves, 155. 
 
 beneficiaries under a will incompetent to testif3', when, 156. 
 
 surviving partner incompetent to testify, when, 156. 
 
 transferee of negotiable paper not an assignee, 156. 
 
 when witness incompetent to state that entry was made, 156. 
 
 witness may testify that decedent was silent, 157. 
 
 mother may testify to birth of child as against decedent's estate, 157. 
 
 witness may testify as to deposit of money to credit of decedent, 157. 
 
 witness may state that he paid his own money upon decedent's debt, 157. 
 
 witness cannot state that he left notices at decedent's house, 157. 
 
 witness may deny any statements of other witnesses, 158. 
 
 witness may swear that he had possession of property, 158. 
 
 when witness can state whole transaction on cross-examination, 158. 
 
 when witness can state whole transaction on i-e-examination, 158. 
 
 witness may testify that instrument has been altered, 158. 
 
 witness cannot testify that he had a conversation with deceased, 158. 
 
 witness may testify that certain letters found in decedent's possession 
 
 were in testator's handwriting, 158. 
 witness cannot testify to physical condition of decedent, 159. 
 cannot testify to payment of money to deceased. 159. 
 party may verify his account against estate of deceased, 159. 
 witness cannot testify that he saw deceased sign affidavit of verification, 
 
 159. 
 death of party before examination does not affect testimony already 
 
 taken, 159. 
 witness may testify to value of property purcliased of deceased, 159. 
 witness may testify to value of services performed for deceased, 159. 
 entries of decedent competent evidence for, 160. 
 parties' books competent as against decedent's estate, 160. 
 a party may state that a conversation did not take place, 161. 
 conversations in presence of decedent are made to him, 161. 
 meaning of word " testimony," 161. 
 
 books, papers and instruments of decedent not testimony, 161, 
 testimony of a deceased party competent as against decedent's estate, 
 
 161. 
 widow cannot testify to marriage, when, 161. 
 creditors, action by, who are competent witnesses, 161. 
 who cannot testify as parents as to legitimacy, 163. 
 
INDEX. 771 
 
 Beferences are to panes. 
 EXECUTOR (continued) — 
 
 deriving title; meaning of, as to competency of witnesses, 163. 
 
 party may testify as to signature of decedents, 162. 
 
 party may testify to extraneous facts, 168. 
 
 party cannot testify in indirect method, 163. 
 
 party cannot testify to an address on a package, 163. 
 
 party cannot testify to the contents of a box, 163. 
 
 legatee cannot testify in support of a will, 168, 173. 
 
 legatee may testify in aid of a contestant, 163. 
 
 beneficiary cannot testify in support of a will, 163. 
 
 burden of showing witness unqualified, 164. 
 
 waiver of incompetency of witness, 165. 
 
 interested party may testify to same transaction or conversation testified' 
 
 to by, 165. 
 what is same transaction or conversation, 165. 
 party cannot show transaction called out by him on cross-examination, 
 
 166. 
 party may testify that he had no conversation with decedent, 167. 
 party may state that an alleged transaction with decedent never took 
 
 place, 167. 
 witness cannot testify that he carried an ink-stand, 168. 
 interest that disqualifies a witness, 168. 
 surety on decedent's note competent, 169. ^ 
 
 surety on indemnity bond of sherifif, incompetent,~when, 169. 
 heirs, incompetent witnesses, when, 171. 
 grantee, incompetent witness, when, 171. 
 grantor, incompetent witness, when, 171. 
 assignee, incompetent witness, when, 171. 
 assignor, incompetent witness, when, 171. 
 legatee, incompetent witness, when, 171. 
 agents incompetent witnesses, when, 173. 
 what is not a personal transaction, 175. 
 admissions of, not binding on estate, 803. 
 of one as against another, 314. 
 
 admission made while, not admissible against him individually, 215> 
 assignment by, 374. 
 title of, 883. 
 letters of, 383. 
 letters testamentary, 883. 
 EXEMPLIFICATION — 
 
 when primary proof, 334. 
 
 definition of, 835. 
 
 production of, proof of execution of instrument, 385. 
 
 by whom to be exemplified, 335. 
 
 of laws of United States, 386. 
 
 legislative acts of states and territories, 836. 
 
 EXPERTS — 
 who are, 535. 
 comparison of handwriting by, 580. 
 
7 ( 8 INDEX. 
 
 References are to pages, 
 EXPERTS (continued) — 
 
 %vhen thej' may give opinions to explain terms, 358. 
 
 may illustrate on blackboard, 258. 
 
 may use X-ray process, 261. 
 
 cannot state that a place was dangerous, 534. 
 
 that timbers used were improper for the purpose, 536. 
 ■may testify as to the cause of an overflow of river, 539. 
 may testify from mortality tables as to expectation of life, 539. 
 may state that a bridge was sound, 580. 
 
 as to depreciation of rental of property, 530. 
 
 as to value of farm with or without railroad crossing, 530. 
 
 as to whether accident was caused by failure of lever to engine, 531. 
 
 as to prospective profits, 531. 
 
 as to how an injury occurred to a ship, 531. 
 
 as to what must be the effect of injuries, 531. 
 
 as to the value of an agreement, 532. 
 
 as to what a party's future physical condition may be, 533. 
 
 as to the safety of highway, 533. 
 
 the number of horse-power obtainable from a quantity of water, 533. 
 
 as to whether work was well done, 533. 
 
 as to whether fire was set at a proper time, 533. 
 
 as to the effect of an accident upon shrinkage of cattle, 533. 
 
 as to the value of stocks not dealt in, 534. 
 
 whether one person is sincerely attached to another, 534. 
 
 whether a bed which he saw appeared to have been slept in, 543. 
 
 what results will follow from injuries, 543. 
 
 as to the existence of custom or usage, 543. 
 
 what would be the size of waves caused by wind, 545. 
 
 within what time a street-car can be stopped, 546. 
 
 the distance within which a train can be stopped, 54(i 
 
 how far a railroad train can be seen, 546. 
 
 how fast a train is going, 546. 
 
 as to how long a bridge usually lasts, 546. 
 
 as to how freight trains are made up, 551. 
 
 that a sidewalk was reasonably safe, 553. 
 
 that a vessel was properly loaded, 553. 
 
 of the usual and ordinary capacity of doing business of a certain 
 man, 556. 
 
 of the nature and effect of a foreign and unwritten law, 566. 
 
 that certain sticks are surveyors' sticks, 582. 
 
 that animals killed by railway were running at the time, 583. 
 a physician cannot state how an injury was caused, 535. 
 ■cannot testify as to the age of handwriting, 535. 
 
 as to the value of a contract, 535. 
 
 as to the object of a transaction, 536. 
 
 as to the application of a libel, 536. 
 
 as to the construction of a statute, 536. 
 
 whether a building is safe, 536. 
 
INDEX. 77^ 
 
 Beferences are to pages. 
 EXPERTS (continued) — 
 
 cannot state the pecuniary amount of damages that proj)erty has sus- 
 tained, 536. 
 
 as to the value of a loan of credit, 537. 
 form of question to, 537. 
 
 form of question must be based upon what, 537, 538. 
 hypothetical question must assume all facts in the case. 588. 
 hypothetical question must be based on facts absolutely proved or ad- 
 mitted, 538, 539. 
 general objection to hypothetical question not good, 541. 
 witness cannot be asked " what have you to say on the testimony j'ou 
 
 have heard?" 543. 
 witness may be asked " what results will follow with reasonable cer- 
 tainty from injuries which you have observed?" .543. 
 witness may testify that a party was feigning suffering, 533, 
 
 as to whether another witness' testimony sliows him to be an expert, 
 533. 
 
 as to whether a stain is human blood, 534. 
 cannot testify to what is the proper time to burn fallow, 535. 
 
 as to how a fracture was caused, 535. 
 
 whether a vessel or cargo could have been saved by certain acta, 535. 
 
 that a blow upon the ear made a person deaf, 536. 
 
 that fire would not destroy mats of grass, 537. 
 
 what is the proximate cause of an injury, 537. 
 
 that a certain person was an imbecile, 539. 
 may testify as to the eflfect of a certain internal injury, 540. 
 
 the probability of i-ecovery of a person from a certain injury, 540. 
 
 that a person was sane or insane, 550. 
 
 that a certain condition could have resulted from a fall, 541. 
 
 whether pregnancy could result from first intercourse, 541. 
 
 a person's capacity to concentrate his thoughts, 541. 
 cannot state as to worth of property without railroad, 543. 
 may state whether a trip across the ocean and shipment on railroad 
 
 would cause animals to abort their young, 547. 
 cannot testify whether a person was careful or skilful, 548. 
 may testify that a turn-table is dangerous, 548. 
 may testify that a platform was insuflScient, 548. 
 
 that hard-wood floor will become slippery, 549. 
 
 to measures to prevent stranding, 549. 
 
 to the suitableness of a stable. 549. 
 cannot testify that a place was reasonably safe, 549. 
 
 that a place was dangerous, 549. 
 
 that a fence was sufficient to hold stock, 549. 
 mny testify that all that was possible was done to avoid collision, 550. 
 
 that a machine was not properly handled, 550. 
 
 whether a scuttle-hole in the sidewalk was safe, 550. 
 
 that revolving shafting is dangerous, 550. 
 
 that machinery was reasonably adapted to the purpose, 550. 
 
7S0 INDEX. 
 
 Beferences are to pages, 
 EXPERTS fcontinued) — 
 
 cannot testify that a person had not testamentary capacity, 555. 
 cannot answer questions calling for legal conclusions, 563. 
 may state probable duration of injuries, 567. 
 
 future effect of injuries, 567. 
 
 that injuries are permanent, 567. 
 
 that injuries are necessarily painful, 567. 
 
 the direction from which a blow was delivered, 567. 
 
 ■whether an autopsy was properly made, 568. 
 
 ■whether an abscess was caused by a bruise, 568. 
 
 whether a miscarriage was caused by an injury, 568. 
 
 whether the muzzle of a gun must have been .higher than the man 
 who was shot, 568. 
 
 ■whether the person could have made the wounds upon himself, 
 568. 
 
 whether a cause could produce the condition claimed, 568. 
 
 as to the proximate cause of paralysis, 5B9. 
 
 as to the probable duration of the life of a man, 569. 
 
 whether a person's illness was produced by violence or disease, 569. 
 may decipher writing, 579. 
 
 may state whether a note has been altered from eight to eighty, 579. 
 may testify that writing is simulated, 580. 
 cannot compare writing from photographic copies, 580. 
 may testify as to value of property, 677, 678. 
 may testify as to the value of a stock of goods, 681. 
 may testify as to the rental value of property, 681, 683. 
 may testify as to the value of services, 680, 692, 
 may testify as to value of real estate, 683. 
 may testify where there is no market value, 691. 
 
 EXPERTS AS TO HANDWRITING — 
 by seeing the person write, 229. 
 
 sufficient knowledge to make witness competent to testify to handwrit- 
 ing, 228. 
 by having seen writing purporting to have been made by party, 228. 
 
 EXPLAINING TERMS AND WORDS IN WRITING — 
 parol evidence may be used to, 268, 270. 
 of guaranty, 272. 
 
 EXPRESSION — 
 
 of feelings, hearsay, when, 495, 504 
 
 not hearsay, when, 495, 504. 
 in writing, explained by parol, 268, 277. 
 
 EXTENSION OF TIME OF PAYMENT — 
 may be shown by parol, 320. 
 
 EXTRANEOUS FACTS — 
 
 interested party may testify to, as against decedent's estate, 163. 
 witness cannot say he carried an ink-stand, 168. 
 
INDEX. Y81 
 
 EXTRINSIC FACTS - •^'^"""°'' "'" *" '"''''■ 
 interested party may testify to, when, 163. 
 competent to explain words, 368, 270. 
 
 to identify subject or person, 371. 
 
 to show whose money paid for land, 371. 
 to show consideration, 300. 
 
 to complete contract, when writing not signed by both parties, 395. 
 to show that a writing purporting to be a contract was not intended as 
 
 such, 397. 
 to show surrounding circumstances, 297. 
 to contradict or vary receipt, 303. 
 
 to complete an entire agreement of which a writing is only a part, 303. 
 in aid of construction of will, 390, 395. 
 
 P. . 
 
 FABRICATION — 
 
 of evidence, presumption from, 673. 
 FACT — 
 
 presumptions of, 591, 600. 
 FACTS AND LAW — 
 
 must be kept separate, when, 8. 
 FAILURE TO DENY — 
 
 an implied admission, 61. 
 
 affirmative defense, effect of, 61. 
 
 an instrument fully pleaded, 61. 
 
 allegation of fact admits presumption of fact, 63. 
 
 legal conclusion not admitted by, 63. 
 
 giving a different version, 64. 
 
 direct allegation to the contrary, effect of, 64. 
 
 documents pleaded need not be produced, 66. 
 FALSEHOOD — 
 
 asserting, as evidence of crime, 207. 
 FAMILY — 
 
 history, 435. 
 
 pedigree shown by declarations of, 427. 
 
 who competent to testify to, 425. 
 
 declaration of deceased person as to genealogy of person, 437. 
 
 declarant must be a relative of the person whose history is to be proved, 
 427. 
 
 declarations not admissible to show illegitimacy of child, 433. 
 FATHER -. PUTATIVE — 
 
 view of child to show, 356, 358, 
 
 photograph to show, 356. 
 
 FEDERAL COURT — 
 practice in, 71. 
 records of, how proved, 237. 
 state laws noticed by, 235, 236, 237. 
 take judicial notice of statutes of all the states, 194, 338, 339. 
 
782 INDKX. 
 
 References are to pages. 
 FEELINGS — 
 
 shown by what a person says, 13. 
 
 FELONY — 
 
 conyiotion of, does not incapacitate witness, 133. 
 
 FICTION — 
 
 of law, what is, 70. 
 presumption of, 593. 
 how pleaded, 70. 
 different kinds of, 594. 
 affirmative, what is, 594. 
 
 negative, 594. 
 
 ratification, 594 
 
 FLAGS — 
 
 judicial notice taken of, 181, 185. 
 
 FLIGHT — 
 
 as evidence of guilt, 664. 
 
 FOREIGN COURT — 
 
 jurisdiction, how shown, 439. 
 judicial notice taken of, 181, 
 judgments in, 116, 119. 
 
 FOREIGN JUDGMENTS — 
 
 presumption in favor of, 116, 119. 
 proof of, 116, 119. 
 conclusive, when, 110. 
 
 FOREIGN LAWS — 
 
 proof of, 338. 
 
 usury must be specially pleaded, 50. 
 
 acts of state, how proved, 338. 
 
 interstate, 338. 
 
 certified copies, 338. 
 
 exemplifications, 385. 
 
 examined copies, 334. 
 
 public records of state, 237. 
 
 legislative acts, 836. 
 
 presumption as to, 614. 
 malum in se, 543. 
 
 the term does not include the statute law of the forum, 64SI 
 FORM — 
 
 of question as to reputation, 33. 
 
 objection to competency of witness, 164. 
 
 of question as to transaction with deceased person, 178, 179. 
 
 of objection by prisoner to confession, 216. 
 
 of expression in aid of construction of contract, 377. 
 
 of declaration, immaterial, 433. 
 
 of question to an expert, 537. 
 
 must be baaed upon what, 537, 538. 
 
INDEX. 78a 
 
 References are to pages. 
 FORM OF EXPRESSION — 
 
 proof of by parol in aid of construction, 377. 
 technical terms in aid of interpretation, 370. 
 custom and usage, 383, 284. 
 FORMER JUDGMENT — 
 
 is conclusive proof against parties and privies of facts directly in issue in 
 the case, 108. 
 as to construction of contract, 108. 
 party producing record must show that the subject is directly in issue, 
 
 109. 
 immaterial as between strangers to the record, 109. 
 as between party and stranger, 109. 
 
 conclusive as between party and stranger in admiralty proceedings, 109. 
 in rem, conclusive, 109. 
 as to status and condition of a party, 109. 
 as to lunacy of a party, 109. 
 on question of a public nature, 109. 
 foreign, stand on same footing, when, 110. 
 confessions of, conclusive when, HO. 
 want of jurisdiction maybe shown, when, 110. 
 recitals of jurisdictional facts not conclusive, 111. 
 fraud in procuring, may be shown, 111. 
 stranger may impeach it collaterally. 111. 
 party to, cannot impeach it collaterally. 111. 
 of courts of limited jurisdiction. 111. 
 against heirs, not binding on administrators, 113. 
 decrees for sale of lunatic's estate bind everybody, 113. 
 verdict in pedigree case binds strangers, 113. 
 action against prior by subsequent indorser, 113. 
 against one joint trespasser, no bar to, against others, 113. 
 
 one joint and several promisor, bar to action against other, 114 
 principal, not conclusive against surety, 114. 
 a party as executor, not conclusive against him individually, 114. 
 agent, no bar to, against principal, 113. 
 deputy, no bar to, against sheriff, when. 113. 
 administrator, binding on distributees, 114. 
 heirs or devisees, not binding on administrator, 114 
 ancestor, when binding on heirs, 114. 
 executor, not binding on administrator de bonis non, 114. 
 master, when binding against servant, 114. 
 purchaser pending action bound by, 114. 
 assignee of litigated right bound by, 114. 
 parol evidence admissible to show what was litigated, 115. 
 where counter-claim is set up and passed upon, party cannot sue for bal- 
 ance, 115. 
 in second action for continued trespass, 115. 
 action for penalty not conclusive, when, 1 15. 
 for one instalment of debt, conclusive when, 115. 
 
784 INDEX. 
 
 References are to pages. 
 
 FORMER JUDGMENT (continued) — 
 
 for fraud, bar to action upon warranty, 115. 
 
 in trover, bar to an action for goods sold, 115. 
 
 effect of appeal from, 116. 
 
 entered by consent, effect of, 116. 
 
 should be pleaded, when, 116. 
 
 what defenses may be shown, 116. 
 
 in criminal cases, not evidence in civil, 116. 
 
 verdict of coroner's jury, evidence in civil cases, 117. 
 
 parties to, may be identified by parol, 119. 
 
 certified copies of, 234. 
 
 exemplifications of, 235. 
 
 examined copies of, 234L 
 
 FORMER RECOVERY — 
 
 conclusive, when, 109, 129. 
 
 must be pleaded, 47. 
 
 see Res Adjudicata. 
 FRAUD — 
 
 must be proved, 368. 
 
 presumption against, 619, 630. 
 
 one by proof of another, 14. 
 
 not admissible under general denial, 45. 
 
 must be pleaded, 50. 
 
 knowledge of the facts must be pleaded, 50. 
 
 intent to deceive must be alleged, 50. 
 
 reliance upon the facts must be alleged, 51. 
 
 in procuring judgment, may be shown, 111. 
 
 judgment for, bar to action upon warranty, 115. 
 
 in obtaining writing, may be shown by parol, 263. 
 
 in obtaining contract, 335. 
 
 sufficient evidence to go to jury, 343, 354 
 
 to do away with contract, 355. 
 
 other may be shown, when, 356. 
 
 who bound to show, 350. 
 
 intent must be shown, 356. 
 
 creditor must show, 358. 
 
 fictitious consideration, 358. 
 
 constructive, what is, 368. 
 
 declaration as to, 518, 519. 
 
 FRAUDULENT CONVEYANCE — 
 creditor must show, 358. 
 
 FRAUDULENT DESTRUCTION OF INSTRUMENT — 
 
 effect, 253. 
 FRAUDULENT TRANSACTIONS CONTINUOUS — 
 
 proof of, 355. 
 
 declarations as to, 518, 519. 
 
INDEX. 785 
 
 Keferences are to pages. 
 
 G. 
 
 (JAMBLING HOUSE — 
 
 character of, how shown, 35. 
 
 GENEALOGY — 
 
 declarations as to, 437. 
 
 how proved, 437. 
 
 by whom shown, 437. 
 
 letters of father as to, 439. 
 
 proof of relationship of declarant, 430. 
 
 declaration of living parent, 430. 
 
 entries in family bible, 433. 
 
 family record, 433. 
 
 recitals in deeds, 433. 
 
 entries of birth, 435. 
 
 entries in hymn book, 435. 
 
 pedigree, 435. 
 
 marriage certificate, 435. 
 
 table of, 435. 
 
 coat-armor and mural inscription, 436. 
 
 memoranda in almanac, 436. 
 
 GENERAL DENIAL — 
 
 bona fide purchaser, evidence of, under, incompetent, 44. 
 prematiireness of action competent, 44. 
 defense of action of account stated, 45. 
 defense of adequate remedy at law not competent under, 45. 
 defendant may show that contract was never delivered, 45. 
 defendant may show under, that contract really made, 45. 
 plaintiff cannot show a contract void by the statute of frauds, 45. 
 defendant may show breach of performance, 45. 
 when defendant may show want of consideration under, 45. 
 when defendant cannot show want of consideration, 45. 
 defendant cannot show failure of consideration as excuse for non-per- 
 formance, 45. 
 defendant cannot show that plaintiflE prevented performance, 45. 
 when defendant may show fraud under, 45. 
 when defendant cannot show fraud under, 45. 
 when plaintiff cannot put in evidence illegal paper, 45. 
 defendant cannot show illegality of contract under, 46. 
 when defendant may show illegality of contract under, 46. 
 when defendant may show invalidity of judgment under, 46. 
 when defendant cannot show invalidity of judgment under, 46. 
 when defendant may show want of negligence under, 46. 
 defendant may show contributory negligence under, 46. 
 when defendant may show ownership in third party or in himself, 46. 
 when defendant may show payment under, 46. 
 when defendant cannot show payment under, 46. 
 50 
 
786 INDEX. 
 
 Eeferences are to pages, 
 
 GENERAL DENIAL (continued) — 
 
 defendant cannot show that plaintiff is not the real party in interest, 47. 
 
 defendant cannot show adverse possession under, 47. 
 
 matter of inducement not admitted by failure to deny, 48. 
 
 defendant may disprove trespass under, 49. 
 
 defendant cannot show justification of trespass under, 49. 
 
 public o£acer may prove justification of trespass under, 49. 
 
 ownership of real property in a third person cannot be shown under, 49. 
 
 composition with creditor cannot be proved under, 49. 
 
 accord and satisfaction cannot be shown under, 50. 
 
 payment cannot be shown under, 50. 
 
 insanity cannot be shown under, 50. 
 
 infancy cannot be shown under, 50. 
 
 lunacy cannot be shown under, 50. 
 
 waiver cannot be shown under, 50. 
 
 plaintiff's knowledge of fraud may be shown under, 51. 
 
 value may be proved under, 51. 
 
 mistake cannot be shown under, 53. 
 
 denial of award admits evidence that there was none, 53. 
 
 evidence of alteration of instrument admissible under, 53. 
 
 title of note in another, not admissible under, 53. 
 
 evidence that paper was made for a special purpose and misappropriated, 
 not available under, 53. 
 
 defendant may show that plaintiff has but a naked legal title to nego- 
 tiable paper, 54. 
 
 defendant may show that services were gratuitous, 55. 
 
 that the contract was void under the statute of frauds, 55. 
 
 defendant may show that goods were delivered under contract which 
 had been performed by him, 56. 
 
 defendant may show that he acted as agent for another, 56. 
 
 defendant may show that the thing tendered was not the thing con- 
 tracted for, 56. 
 
 defendant may show that the money was received upon a different con- 
 tract, 58. 
 
 defendant cannot show coverture under, 59. 
 
 defendant cannot show incapacity under, 67. 
 
 conditions precedent cannot be shown under, 68. 
 GENERAL RECORDS OF THE NATION — 
 
 copies of, evidence, 235. 
 
 certification by officers, 235. 
 
 best evidence rule does not apply to, 235. 
 
 parol evidence admissible to prove, 285. 
 GENERAL REPUTATION — 
 
 how shown, 24, 38. 
 
 competent evidence, 24, 38. 
 GENERAL TRAVERSE — 
 
 bona fide purchaser, evidence of incompetent, 44 
 
 prematurity of action competent, 44 
 
INDEX. 787 
 
 References are to pages. 
 
 GENERAL TRAVERSE (continued) — 
 
 defense of action of account stated, 45. 
 
 defense of adequate law not competent under. 45. 
 
 defendant may sliow that contract was never delivered, 45, 
 
 defendant may show contract really made, 45. 
 
 plaintiff cannot show a contract void by the statute of frauds, 45. 
 
 defendant may show breach of performance, 45. 
 
 when defendant may show want of consideration, 45. 
 
 when defendant cannot show want of consideration, 45. 
 
 defendant cannot show failure of consideration, 45. 
 
 defendant cannot show excuse for non-performance, 45. 
 
 defendant cannot show that plaintiff prevented performance, 45, 
 
 when defendant may show fraud under, 45. 
 
 when defendant cannot show fraud under, 45. 
 
 when plaintiff cannot put in evidence in legal paper, 46. 
 
 defendant cannot show illegality of contract under, 46, 
 
 when defendant may show illegality under, 46. 
 
 when defendant may show invalidity of 'judgment under, 46. 
 
 when defendant cannot show invalidity of judgment under, 46. 
 
 defendant may show want of negligence under, 46. 
 
 defendant may show contributory negligence under, 46. 
 
 when defendant may show ownership in himself or third person, 46. 
 
 when defendant may show payment under, 46. 
 
 when defendant cannot show payment under, 46, 
 
 defendant cannot show that the plaintiff is not the real party in inter- 
 est, 47. '■ 
 
 defendant may show adverse possession under, 47. 
 
 matter of inducement by failure to deny, 48. 
 
 defendant may disprove trespass under, 49. 
 
 defendant cannot show justification of trespass under, 49. 
 
 public officer may prove justification of trespass under, 49. 
 
 ownership of real property in third person cannot be shown, under, 49. 
 
 defendant cannot prove composition of creditors under, 49. 
 
 accord and satisfaction cannot be shown under, 50. 
 
 insanity cannot be shown under, 50. 
 
 infancy cannot be shown under, 50. 
 
 waiver cannot be shown under, 50. 
 
 plaintiff's knowledge of fraud may be shown under, 51. 
 
 value may be proved under, 51. 
 
 mistake cannot be shown under, 53. 
 
 denial of award admits evidence, 53. 
 
 evidence of alteration of instrument admissible under, 53. 
 
 title in another not admissible under, 53. 
 
 defendant may show that plaintiff has but a naked legal title to a nego- 
 tiable paper, 58. 
 
 defendant may show services were gratuitous, 55. 
 
 that the contract was void under the statute of frauds, 55. 
 
 defendant may show that goods were delivered under a contract which 
 has been performed by him, 56. 
 
788 INDEX. 
 
 References are to pages. 
 
 GENERAL TRAVERSE (continued) — 
 
 defendant may show that he acted as agent for another, 56. 
 
 defendant may show that the thing tendered was not the thing con- 
 tracted for, 56. 
 
 defendant may show that the money was received upon a different con- 
 tract, 58. 
 
 defendant cannot show coverture under, 59. 
 
 defendant cannot show incapacity under, 67. 
 
 condition precedent cannot be shown under, 68. 
 
 ■GEOGRAPHICAL MATTERS — 
 courts take judicial notice of, 193. 
 
 •GESTATION — 
 
 period of, presumed, 636, 637. 
 
 •GESTURES — 
 
 dying declarations by, 453. 
 
 evidence when, 220. 
 
 of deaf and dumb persons, 137. 
 
 'GIFT — 
 
 declarations of donor as to, 220, 461. 
 
 intent necessary, when, 374. 
 
 delivery necessary to, 374. 
 
 advancement as, 388. 
 
 to claimants, 393. 
 
 evidence to identify subject of, 392, 393. 
 
 evidence to identify donee, 392, 393. 
 
 from husband to wife, presumed when, 400. 
 
 from wife to husband, not presumed, 401. 
 'GOD — 
 
 belief in, necessary to competency of witness, 133. 
 
 GOODS — 
 
 complaint for, 55, 
 
 implied promise to pay, 56. 
 
 allegation of sale and delivery to defendant, 56. 
 
 an averment that plaintiff sold and delivered, imports title, 55. 
 
 defendant may show that goods were delivered under a contract which 
 had .been performed by him, 56. 
 
 defendant may show that he acted as agent for another, 56. 
 
 ■defendant may show that the thing tendered was not the thing con- 
 tracted for, 56. 
 
 :plaintiff must allege that he was willing and ready to deliver, 57. 
 
 judgment in ti'over bar to action for goods sold, 115. 
 
 burden of proof of delivery and acceptance, 341. 
 
 'GOVERNMENT — 
 
 acts of, how proved, 236. 
 judicial notice of, 179, 185. 
 
INDEX. 78£n 
 
 References are to pages, 
 GOVERNOR — 
 
 courts take judicial notice of signatures, 186. 
 
 judicial notice of acts of, 197. 
 
 not bound to produce papers or disclose information, 103. 
 
 proclamation of, how proved, 236, 239. 
 
 GRAND JURY— 
 
 acta of, privileged, 103. 
 
 stenographer's acts privileged, 108. 
 
 cannot be questioned as to wliat took place, 103. 
 
 may prove perjury committed before, 103. 
 
 GRANT — 
 
 when presumed, 646. 
 GRANTEE — 
 
 no party can testify to a personal transaction with, as against, 147, 170. 
 
 deriving title ; meaning of, as to competency of witnesses, 162, 170. 
 GRANTOR — 
 
 competent as a witness, when, 170. 
 
 declarations of, 460. 
 GRAVESTONES — 
 
 as declai'ations of pedigree, 436. 
 
 oral proof of inscriptions on, 888. 
 
 GROANS — 
 
 to show injury or feelings, 501, 504. 
 
 GUARANTOR — 
 
 declarations of, bind principal when, 211. 
 acceptor may show that he was to be bound as, 311. 
 
 GUARDIAN — 
 
 ad litem; failure to deny, eiTect of, 68. 
 
 admissions by, as against ward, 214. 
 
 surety on bond of, incompetent as a witness when, 170. 
 
 what interest disqualifies as a witness, 170. 
 
 GUILT, PRESUMPTION OF — 
 from motive, 665. 
 
 other crimes, 665. 
 
 malice, 667. 
 
 threats by prisoner, 668. 
 
 threats by deceased, 669. 
 
 attempts of prisoner to commit same crime, 668. 
 
 recent possession of fruits of crime, 670. 
 
 unexplained suspicious appearance, 671. 
 
 attempts to stifle investigation, 671. 
 
 concealment, 671. 
 
 disguise, 671. 
 
 flight, 671. 
 
 silence of accused when charged, 673. 
 
 spoliation of evidence, 673. 
 
790 INDEX, 
 
 References are to pages. 
 
 GUILT, PRESUMPTION OF (continued) — 
 from affectation of grief, 673. 
 
 fabrication of evidence, 673. 
 presumption against, 675. 
 
 GUILTY POSSESSION — 
 evidence of, 604. 
 
 H. 
 
 HABITS — 
 
 of animals, 16. 
 
 particular trait of, may be shown, 23. 
 
 evidence restricted to that trait. 28. 
 of being quarrelsome, 23. 
 of being dangerous, 28. 
 of peace and quietude, 23. 
 of being a drunkard, 844, 586. 
 
 HANDWRITING — 
 
 proof of signature of subscribing witness, 88, 225. 
 party may testify to, of decedent, 162. 
 proof of maker of instrument, 227, 228. 
 jiroof of execution by maker, 228. 
 who competent witness as to, 228. 
 
 sufficient knowledge to make witness competent to testify to, 228, 573. 
 by seeing the person write, 228, 573. 
 
 by having seen writing purporting to have been made by party, 238, 
 "572. 
 witness to, must identify writer, 228, 574 
 autograph, what is, 572. 
 holograph, what is, 572. 
 onomastic, what is, 572. 
 signed by a cross, how proved, 572. 
 standard for comparison of, fixed in the mind, 572. 
 signature to lost paper, how proved, 574. 
 proof of by comparison, not allowed by common law, 575. 
 comparison with ancient documents, 575. 
 standards for comparison, how proved, 575. 
 preliminary examination as to standards, 575. 
 documents duly acknowledged as standards, 576. 
 party to action may testify as to standards, 576. 
 standards only allowed in case of disputed writings, 576. 
 comparison only allowed where instrument is subject of controversy, 
 
 577. 
 cross-examination of witness as to comparison, 577. 
 witness cannot write his name in court for purpose of comparison, 578, 
 experts may decipher, 579. 
 
 standard need not be proved by direct evidence, 580, 
 expert may illustrate upon blackboard, 580. 
 
INDEX. 791 
 
 Beferences are to pages. 
 
 HANDWRITING (continued) — 
 
 expert may testify that it is simulated, 580. 
 
 expert cannot compare from pliotographio copies, 580. 
 
 standards upon cross-examination, 581. 
 
 HEALTH — 
 
 proof of, by non-experts, 566, 587, 588. 
 
 HEARSAY— 
 what is, 413. 
 
 complaints of injury, 416. 
 declaration as to pedigree, 435. 
 information upon which one acted, 414 
 inscriptions, 436. 
 of other conspirators, 514, 516. 
 of partners, 407, 410. 
 
 declarations accompanying acts of agents, 494. 
 entries by third persons, 439, 442. 
 in disparagement of title, 457. 
 managers of corporations, 378, 380. 
 indorsement of partial payment, 370, 371. 
 in matters of general and public interest, 415. 
 perambulations, 418, 448. 
 concerning ancient rights, 431. 
 ante litem motam, 433. 
 must be of persons since deceased, 433. 
 of private rights, rejected, 416, 439. 
 situation of declarant, 427. 
 as to ancient possessions, 413. 
 declaration against interest, 433, 456. 
 books of ofiScials, 439. 
 books of deceased, 441. 
 testimony of witness since deceased, 159. 
 declaration of interpreter, 137. 
 answers by signs, 137. 
 when admissible, 413. 
 general reputation, 414 
 ownership reputed, 414 
 that debtor has left the state, 414. 
 rules as to, 414. 
 public interest, what is, 416. 
 declarant's opinion not evidence, 417. 
 common report, 418. 
 writings as, 418. 
 usage as, 419. 
 
 recitals in documents as, 419, 433, 
 verdicts as, 410. 
 judgments as, 419. 
 
792 INDEX. 
 
 Beferences are to pages. 
 HEARSAY (continued) — 
 
 what matters involve public or general interest, 430. 
 
 declarant must be dead, 421, 430. 
 
 ancient history where author dead, 481. 
 
 local history not admissible, when, 481. 
 
 history must relate to public matters, 421. 
 
 ancient general history as proof of license, 431. 
 
 must be made before lis mota, 423. 
 
 declarations post litem motam, 483. 
 
 witness need not specify from whom he heard, 423. 
 
 what matters not admissible as, 424. 
 
 declarations as to particular facts not admissible, 434. 
 
 maps as, 434, 448. 
 
 documents as, 424. 
 
 facts as to family history, 425. 
 
 relationship by family history, 426. 
 
 declaration of deceased person as to genealogy of family, 437. 
 
 by whose declarations proved, 427. 
 
 declarations of mother as to legitimacy of child, 438. 
 
 declaration of man as to marriage, proper, 428. 
 
 declaration of party as to age, 428. 
 
 declaration as to date of birth, 439. 
 
 declaration contained in letters of father as to age of children, 439. 
 
 proof of relationship of declarant as to pedigree, 430. 
 
 declaration of living father as to pedigree, 430. 
 
 declaration admissible to prove illegitimacy of declarant, 430. 
 
 form of declaration immaterial, 433. 
 
 entries in family bible, 433. 
 
 conduct of parties to alleged marriage, 434. 
 
 declarations not admissible to show child illegitimate, 433. 
 
 public entries of birth, 435, 
 
 marriage certificate, 435. 
 
 genealogical table, 435. 
 
 ring, stating date of person's death, 436. 
 
 town records of pedigree, 436. 
 
 coat-armor and mural inscriptions, 436. 
 
 memoranda in almanac, 437. 
 
 declaration of person as to his own legitimacy, 486. 
 
 declaration of husband as to legitimacy of wife, 437. 
 
 declaration of wife as to legitimacy of husband's family, 437. 
 
 declarations in couree of duty, 439. 
 
 entries in public records, 430. 
 
 entries made by notary, 439. 
 
 entries made by public officials, 439, 
 
 certificate of protest by notary, 440. 
 
 entries made by jailer, 440. 
 
 recitals of public facts in statutes, 440. 
 
 entries made by deceased's attorney, 441, 
 
INDEX. 795. 
 
 JReferences are to pages. 
 
 HEARSAY (continued)— 
 
 entries made by any person in course of duty, 443, 
 
 declarations must be contemporaneous, 443. 
 
 declaration of owner, 450. 
 
 dying declarations as, 451. 
 
 declarations of deceased grantor, 460. 
 
 declaration of decedent against his representatives, 461, 
 
 declaration of testator as to contents of lost will, 461, 
 
 shop-books as, 463. 
 
 evidence given under former proceeding, 474, 
 
 memoranda as, 468, 473, 
 
 mortuary tables, 477, 
 
 ballot-boxes, 478. 
 
 newspaper advertisements, 478, 
 
 books of science, 478, 
 
 bill-heads, 478, 
 
 market report, 478, 
 
 hotel register, 478. 
 
 entries in books of corporation, 478, 
 
 train-report sheet, 479. 
 
 record book of corporation, 480, 
 
 rule book of corporation, 480. 
 
 rule book of railroads, 480. 
 
 report of corporation, 481. 
 
 subscription books for stock, 481, 
 
 minutes of corporation, 481, 483. 
 
 rules for conduct of employees, 481, 
 
 printed notice to passengers, 481. 
 
 resolutions of corporations, 482. 
 
 statement of constable when making levy, 486. 
 
 statement of paupers as to settlement, 486. 
 
 statement of party when changing domicile, 486, 
 
 statement of party when leaving home, 486, 
 
 statement of wife when leaving home, 487. 
 
 statement of husband when giving wife money, 487. 
 
 statement of passenger at time of accident, 487. 
 
 declarations of by-standers at a public auction, 487. 
 
 declarations of agent while transacting business, 487, 
 
 declarations after injury, not, 488. 
 
 declaratioiis of by-standers at fight, 489. 
 
 declarations of man after he has been shot, 489, 
 
 declarations at place of injury, 489. 
 
 declarations of public surveyor, 490. 
 
 screams of deceased, 492. 
 
 statement of conductor of train at time of accident, 493„ 
 
 documents as res gestae, 492. 
 
 statement of street-oar driver, 497, 
 
 statements inter alios, 498, 
 
794 INDEX. 
 
 References are to pages. 
 HEARSAY (continued) — 
 
 declaration as to state of health, 499. 
 
 statement of party injured to his physician, 500. 
 
 declaration of assignor against assignee, 506. 
 
 declarations before vendor became owner, 506. 
 
 declaration of assignor for benefit of creditors, 511. 
 
 declaration as to ownership, 518. 
 
 acts and declarations in presence of donor, 520. 
 
 HEATHEN — 
 oath of, 135. 
 
 HEIR — 
 
 incompetent witness, when, 171, 173. 
 
 competent witness, when, 153. 
 
 relation must be pleaded, how, 60. 
 
 action against, for debt of ancestor, 60. 
 
 statute must be specially pleaded, 60. 
 
 judgment against, not binding on administrator, 114. 
 
 judgment against ancestor, when binding upon heirs, 114 
 
 hightatay- 
 
 presumption as to dedication of, 650, 654. 
 
 HISTORY — 
 
 public, admissible when, 421. 
 
 local, not admissible, 421. 
 
 public, courts take judicial notice of, 184 
 
 must relate to public matters, 431. 
 
 not receivable to prove private way, 431. 
 
 ancient general, as proof of license, 431. 
 
 facts as to family, 435. 
 
 HOLDER IN DUE COURSE - 
 of commercial paper, 310. 
 ambiguity of contract may be shown, 311. 
 regular indorsement, 313. 
 
 indorser cannot show he is bound conditionally, 813. 
 want of consideration immaterial, when, 313. 
 burden of proof as to, 313, 365. 
 acceptance of bills cannot be varied, 314. 
 liability of parties to paper cannot be varied, 814. 
 date of paper, how shown, 316, 
 presumption as to, 616, 618. 
 
 HOLIDAYS — 
 
 courts take judicial notice of, 185, 
 
 HOLOGRAPH — 
 what is, 573. 
 
INDEX. 795 
 
 HOMICIDE - Beferences <vre to pages. 
 
 presumption in favor of innocence, 655. 
 good character of prisoner presumed, 656. 
 absence of motive must be shown, 656. 
 prisoner must show alibi, 657. 
 
 insanity, 657. 
 communication to defendant competent, when, 658. 
 people must show corpus delicti, 661. 
 
 discovery of body in case of, 662. 
 
 cause of death, 663. 
 
 infanticide, 663. 
 
 may show malice, 667. 
 
 attempts to commit the same crime at other time, 668. 
 
 threats of prisoner, 668. 
 
 recent possession of fruits of crime, 670. 
 
 unexplained suspicious appearances, 671. 
 
 may show attempts to stifle investigation, 671. 
 
 concealment, disguise and flight, 671. 
 
 silence of accused when charged with crime, 673. 
 
 spoliation of evidence by prisoner, 672. 
 
 affectation of grief, 673. 
 
 fabrication of evidence by prisoner, 673. 
 
 must show identity of person or thing, 673. 
 defendant may show threats by deceased, 669. 
 dying declarations as to, 451. 
 when malice presumed from, 667. 
 proof of death, 661. 
 by poison, 663. 
 
 that defendant was armed two weeks before homicide, 18. 
 that defendant knocked down another person two weeks prior to the 
 
 crime charged, 19. 
 previous attempts of defendant to injure deceased, 19. 
 that defendant attempted to secure the assistance of others to cheat de- 
 ceased, 19. 
 attempt of defendant to rob another person, 19. 
 proof of dangerous character of deceased, 36. 
 bullet taken from deceased, 258. 
 pistol and cartridges taken from defendant, 258. 
 jury may visit premises, 258. 
 clothing worn by deceased, 257. 
 X-ray process admissible, 261. 
 
 burden of proving self-defense upon defendant, 861. 
 presumption of guilt, 664. 
 other crimes may be, when, 665, 
 HOSTILITY — 
 
 of witness, how- shown, 307. 
 HUSBAND AND WIFE — 
 
 non-access, incompetent as to, 104 
 communications between, privileged, 103. 
 
796 INDEX. 
 
 References are to pages. 
 
 HUSBAND AND WIFE (continued) — 
 
 declarations of; admissible in actions against each other, 143, 399. 
 
 each competent against each other, when, 143. 
 
 wife not competent witness against husband in some cases, 143. 
 
 coercion of wife by husband, when presumed, 637. 
 
 declaration of wife as to reason for leaving husband, 13. 
 
 relation between, how shown, 35. 
 
 protection extended after death of either party, 104. 
 
 neither shall be compelled to disclose, 104. 
 
 voluntary testimony by wife, admissible when, 104. 
 
 communication in presence of third parties, not privileged, 104. 
 
 proof of marriage necessary to make privilege, 104. 
 
 protection extends after divorce of husband or wife, 105. 
 
 letters written by husband to wife, private, 105. 
 
 communication at very time of marriage, 105. 
 
 non-communication not privileged, 105. 
 
 communications before marriage, 105. 
 
 in actions for separation, 105. 
 
 either party may testify in favor of the other, 105. 
 
 letters between, privileged, 106. 
 
 business transactions between, not privileged, 106. 
 
 communications between, in presence of third party, not privileged, 
 106. 
 
 communications must be those that are expressly made confidential, 
 lOT. 
 
 communications may be waived by party against whom offered, 107. 
 
 neither competent to testify against each other, 141. 
 
 each competent as against eacli other as to crime committed upon wit- 
 ness, 143. 
 
 wife not competent for a co-defendant against husband, when, 143. 
 
 competent to testify as to alibi as to co-defendant, 143. 
 
 lawful marriage must be shown to make witness incompetent, 143. 
 
 where are jointly indicted, 143. 
 
 declarations of either incompetent, when, 143. 
 
 dying declarations of, incompetent as against the other, 144 
 
 wife may corroborate testimony of husband, 146. 
 
 husband may testify in favor of wife, when, 149. 
 
 wife may testify in favor of husband, when, 149. 
 
 wife of husband, party to action for real estate, incompetent, 150. 
 
 wife competent to testify against assignee of deceased husband, 150. 
 
 when competent against each other as against a decedent's estate, 153. 
 
 title of property in, presumption of, 400. 
 
 gift of property from one to other, when presumed, 401. 
 
 services of one for the other, 401. 
 
 torts of wife, 403. 
 
 actions between, 403. 
 
 conduct of, to alleged marriage, 434. 
 
 language and deportment towards each other, competent, 563. 
 
INDEX. ^97 
 
 Beferences are to pages. 
 HYPOTHETICAL — 
 
 form of question to expert, 537. 
 
 form of question must be based upon what, 537, 538. 
 
 must assume all facts in the ease, 538. 
 
 form of, within discretion of presiding judge, 538, 
 
 must be based on facts absolutely proved or admitted, 538, 539. 
 
 general objection not good, 541. 
 
 upon issues of testamentary capacity, 541. 
 
 witness cannot be asked, " what have you to say on the testimony you 
 
 have heard?" 543. 
 witness may be asked, " what results will follow, with reasonable cer- 
 tainty, from the injury you have observed?" 543. 
 
 I. 
 
 IDENTITY — 
 
 proof of, always allowed, 271. 
 
 of name, evidence of identity, 271. 
 
 of person, 119, 239. 
 
 witness to handwriting must, 238. 
 
 address or occupation, 329. 
 
 of ancient documents, how shown, 333. 
 
 photograph to show, 357, 359, 260. 
 
 to show, of person or thing in document, 368. 
 
 of person in will, 398. 
 
 of bequests in will, 393. 
 
 witness may testify as to his belief in the, of a person, 560. 
 
 witness may testify that deceased recognized defendant, 583. 
 
 presumptions as to, 633. 
 IDIOT — 
 
 incompetent as a witness, 137, 138. 
 
 no party can testify to a personal transaction or communication as 
 against his estate, 147. 
 
 party to an action, 148. 
 
 what interest disqualifies, 148. 
 
 husband may testify for wife, when, 149. 
 
 wife may testify in favor of husband, when, 149, 
 
 widow, when competent In action against heirs, 149. 
 IGNORANCE — 
 
 of fact, when an excuse, 656. 
 
 of law, no excuse, 641. 
 ILLEGALITY — 
 
 of contract of corporation, not presumed, 379. 
 
 of instrument, may be shown by parol, 363. 
 
 IMMEDIATE PARTIES — 
 to commercial paper, 309. 
 may show intention, 311, 315. 
 indorsers may show contracts between, 31 1. 
 ambiguity in notes, checks, etc., 311. 
 
798 INDEX. 
 
 Beferences are to pages, 
 
 IMMEDIATE PARTIES (continued) — 
 
 regular indorsement, 313, 
 
 consideration for, 313, 
 
 principal may show lie is surety, 314, 
 
 drawer may be shown to be principal debtor, 314, 
 
 mistake in date may be shown, when, 316, 
 
 evidence to exonerate agent, 317, 
 
 evidence to charge principal, 317, 
 
 evidence to show that writing apparently absolute is not, 318. 
 IMPEACHMENT OF COMMERCIAL DOCUMENT — 
 
 by one who has given currency to it, 130, 
 
 IMPEACHMENT OF WITNESSES — 
 
 tending to show temper, disposition or conduct of vcitness, 33, 
 
 party generally may, by cross-examination, show temper, disposition or 
 
 conduct of witness, 33, 
 ■witness cannot be cross-examined in order to contradict him, 33, 
 motives of witness may be shown by independent evidence, 33. 
 relation between the witness and party may be shown, 32, 
 laying foundation for contradicting witness, 33, 
 witness' attention must be called to the time and place, 33, 
 precise date not necessary, 33, 
 inconsistent statements in writing, 34, 
 proof of inconsistent statements after death of witness, 34. 
 inconsistent statement of party to action, 35, 
 inconsistent statement of prisoner, how proved, 35, 
 plaintiff may show good character, 35, 
 character of gambling-house, how shown, 35. 
 character of disorderly house, how shown, 35, 
 malicious prosecution, bad character of plaintiff, 35. 
 proof of corrupt motives, 36, 
 proof of offer of bribes by witness, 36, 
 proof that party has offered witness bribes, 36, 
 proof that some one has threatened witness, 36. 
 malice of witness, how shown, 36, 
 revenge of witness, how shown, 36, 
 bias of witness, how shown, 37, 
 cross-examination of witness as to bias, 37. 
 hostility of witness, how shown, 37, 
 declarations of absent or deceased person, 38. 
 declaration of subscribing witness, 38, 
 by statement of deceased attesting witness, 38. 
 testimony of deceased witness, how, 38. 
 character, meaning of, 20, 
 
 how shown, 30, 
 
 for unchastity, 20, 
 
 for unchastity, may be rebutted how, 31. 
 
 given to rows, 21. 
 
 of prosecutrix in action for rape, 31. 
 
INDEX. YOQ' 
 
 E^erences are to pages. 
 
 IMPEACHMENT OF WITNESSES (continued) — 
 
 specific and independent immoral acts not admissible, 20. 
 
 male witness, bad character for chastity, 21. 
 
 evidence that one is a professional witness, 21. 
 
 witness cannot be asked if he has been impeached, 21. 
 
 if an action is pending against him for false swearing, 21. 
 
 conviction may be proved by cross-examination in relation thereto, 21. 
 
 indictment cannot be shown by cross-examination, 22. 
 
 on redirect examination may show anything, 22. 
 
 ■when character is directly put in issue, 23. 
 
 form of question as to character, reputation, 22. 
 
 cannot state character of prisoner in question, 23. 
 
 particular trait of character may be shown, 23. 
 evidence restricted to that trait, 23. 
 
 qualification of witness to show character, 34. 
 
 state may show bad character of prisoner, 24. 
 
 corroboration proved by declaration, 25. 
 
 explaining contradictory statements, 26. 
 
 witness may show his version of a conversation, 36. 
 
 sustaining evidence, 26. 
 
 general character, how sustained, 26. 
 
 party calling subscribing witness may impeach him, 27. 
 
 people may impeach defendant when he offers himself as a witness in a 
 criminal case, 28. 
 
 judge may control the range of inquiry, 28. 
 
 by proof of conviction of crime, 28. 
 
 party calling witness may show his contradictory statements, 28. 
 
 party examining cannot, by showing bias, 29. 
 
 party cannot show his witness is untruthful, 39. 
 
 party cannot call witness to impeach general character of, 39. 
 
 party cannot impeach his adversary when he calls him, 29. 
 
 English rule as to, 30. 
 
 irrelevant matter to test moral sense, 31. 
 
 cross-examination to test accuracy and veracity, 31. 
 
 party bound by collateral facts, 31. 
 
 party cannot give independent proofs tending to sustain collateral mat- 
 ters, 32. 
 
 IMPLIED ADMISSIONS — 
 of negligence, 352. 
 fictitious consideration, 358. 
 
 IMPLIED CONTRACT IN WRITING — 
 as to time of delivery of goods, 267. 
 as to time of payment, 267. 
 parol evidence inadmissible to vary, 267. 
 parol evidence to show time for performance, 270. 
 custom and usage as part, 287, 294. 
 unilateral contracts, 296. 
 
.800 INDEX. 
 
 References are to pages, 
 INCAPACITY — 
 
 must be specially pleaded, 67. 
 
 of parties to instrument may be shown by parol, 363. 
 
 INCEST — 
 
 proof of, 21. 
 
 INCOMPETENCY — 
 of witnesses, 132, 160. 
 
 INCOMPLETE DOCUMENT — 
 
 may be aided by parol, 263, 300, 309. 
 
 INCONSISTENCY — 
 
 between testimony and pleading, 65. 
 how shown, 65. 
 
 INCORPOREAL EIGHTS — 
 hearsay as to, 447, 453. 
 
 INDEPENDENT FACTS — 
 
 interested party may testify to, as against an estate, 163. 
 witness cannot testify that he carried an ink-stand, 168. 
 
 INDIRECT METHOD — 
 
 of soliciting incompetent evidence, 163, 
 
 INDORSEMENT — 
 
 evidence to exonerate agent from, 317. 
 evidence to bind principal, 317. 
 
 INDORSERS — 
 
 competent to testify in action between themselves as against decedent's 
 
 estate, 155. 
 not in privity with indorsee, 201. 
 may show contract with payee, when, 310. 
 may show that they were not to be made liable, 310. 
 as to intention of irregular, 311. 
 that was maker, 311. ^ 
 
 cannot show indorsement conditional, 312. 
 can show consideration for, 313. 
 
 INDUCEMENT — 
 
 to confession, effect of, 316, 218. 
 
 INFAMOUS PERSONS - 
 
 as witnesses, 133, 140. 
 
 effect of pardon, 133. 
 INFAMY — 
 
 cross-examination to show, 31, 33. 
 
 cannot be shown under general denial, 50. 
 INFANCY — 
 
 burden of proof of, 437, 675. 
 
 presumptions as to, 635. 
 
INDEX. 801 
 
 References are to pages. 
 INFANT — 
 
 failure to deny by guardian ad litem not an admission, 63. 
 
 cannot be estopped, 136. 
 
 competent witness, when, 133. 
 
 admission of guardian not binding, when, 314 
 
 declaration of, as to age, 438. 
 
 of tender years, dying declarations of, 453, 
 
 INFERENCES — 
 what are, 590. 
 relate to what, 591. 
 presumjdiones hominis, 591, 
 mixed, 591. 
 in general, 593. 
 fictions of law, 593. 
 circumstances, 594. 
 of law, 595. 
 
 no arbitrary rule of, fixed, 596. 
 inflexible proof, when, 596. 
 every one knows the law, 598. 
 estoppels as, 598. 
 that officers do their duty, 599. 
 concerning person's status, 600. 
 party knows contents of writing signed by him, 601. 
 as to jurisdiction of court, 601. 
 of regularity of proceedings, 603. 
 as to carrierSj 605, 
 
 bailees, 605. 
 
 negligence, 605, 606. 
 
 accident cases, 606. 
 
 innkeeper, 607. 
 
 ships, 608. 
 
 carriers of passengers, 349, 609. 
 
 contributory negligence, 610. 
 
 property, 611. 
 
 railroad trains, 613. 
 
 official capacity, 613. 
 
 authority, 613. 
 that the usual course of business was followed, 614. 
 that services were to be paid for, 615. 
 
 that the holder of commercial paper holds in due course, 617. 
 as to consideration of commercial paper, 618. 
 
 protest of bills and notes, 618. 
 
 mailing notice, 618. 
 
 documents regular on their face, 619, 
 
 correctness of dates, 619, 
 
 honesty of person, 619, 
 
 marriage, 631. 
 
 legitimacy, 631, 
 51 
 
802 INDEX. 
 
 Eefcrences are to pages. 
 INFERENCES (continued) — 
 as to spoliator, 631. 
 
 alteration, 622. 
 
 suppression, 633. 
 
 suppression of paper, 632. 
 
 manufacturing of evidence, 633. 
 
 continuance, 633. 
 
 domicile, 625. 
 
 residence, 635. 
 
 solvency, 635. 
 
 infancy, 635. 
 
 partnership, 635. 
 
 sanity, 636. 
 
 insanity, 626. 
 
 character and habits, 636. 
 not retrospective, 637. 
 of life, 637. 
 as to death, 628. 
 
 death of absentees, 628. 
 
 death before seven years, 628. 
 
 death after seven years, 631. 
 
 survivorship, 633. 
 
 identity, 633. 
 
 intent, 633. 
 
 revocation of vi^ill, 634 
 where the doing of an act does not raise, 635. 
 that a person does vphat he has the power to do, 63S. 
 from the course of nature, 636. 
 as to period of gestation, 637. 
 that child incapable of committing crime, 637. 
 as to money given by parent to child, 637. 
 as to payment, 638. 
 
 of payment other than by lapse of time, 639. 
 as to foreign laws, 641. 
 
 acts malum in se, 643. 
 that alteration in paper was made before execution, 643. 
 of receipt of letters from mailing, 645. 
 as to authority of attorney, 645. 
 that goods purchased by wife were for husband, 645. 
 that a deed was delivered before it was recorded, 645. 
 that minor grantees accepted deed, 645. 
 of ownership from possession, 646. 
 as to conveyance of trustees, 647. 
 
 prescriptive title, 650. 
 
 dedication of highway, 650. 
 
 license, 651. 
 
 extinguishment of title by cessation of enjoyment, 653. 
 
 legal title from possession, 655. 
 
INDEX. 803 
 
 Eeferences are to pages. 
 INFERENCES (continued) — 
 as to innocence 655. 
 
 of good character of accused, 656. 
 absence of motive, 656. 
 guilt, 664. 
 from other crimes, 665. 
 of malice, 667. 
 
 INFERIOR COURTS — 
 
 presumption as to jurisdiction of, 603, 605. 
 INFIDEL — 
 
 competency as a witness, 133, 134. 
 INFORMATION — 
 
 party may state upon what he acted, 13. 
 INFORMER — 
 
 protection of, i03. 
 INHABITANT — 
 
 declarations of, as to public rights, 403, 483. 
 INNOCENCE — 
 
 presumption of, 355, 655, 658. 
 IN ONE'S OWN FAVOR — 
 
 indorsement of payment as evidence, 330. 
 
 entry in party's books, 220. 
 
 gestures, 330. 
 
 return of officer, 380. 
 
 parties' books of account, 843. 
 
 in general, incompetent, 495. 
 INQUISITION OF LUNACY — 
 
 effect of as to witnesses, 137, 138. 
 INSANE PERSON — 
 
 competency of, as witness, 187. 
 INSANITY — 
 
 subscribing witness may testify to sanity or, of testator, 553. 
 
 non-experts may compare the mind of party to that of a child, 553. 
 
 non-experts have been allowed to give an opinion as to party's compe- 
 tency to make will, 553. 
 
 non-experts have been allowed to say that they saw no indications of, in 
 a person, 553. 
 
 non-experts may give their opinion as to whether acts or remarks of a 
 person appeared rational or irrational, 554 
 
 presumption of, 636. 
 
 burden of proof of, 055. 
 
 defense in criminal cases, 556. 
 
 how proved, 553, 556. 
 
 non-experts competent as to, 553. 
 
 experts as witnesses of, 555. 
 
 proper form of inquiry, 554, 556. 
 
 must be pleaded, 50. 
 
804: INDEX. 
 
 References are to pages, 
 INSCRIPTIONS — 
 
 provable by parol, when, 241, 333. 
 
 mural, 436. 
 INSOLVENCY — 
 
 of creditor, 7. 
 
 when relevant, 7. 
 
 as presumption of payment, 8, 
 
 INSTRUCTIONS — 
 
 of client to counsel, 86, 96. 
 privileged, 84, 94. 
 
 INSTRUMENTS — 
 
 originals, best evidence, 224, 235. 
 proof of execution, 226, 227. 
 set up as a counter-claim, how destroyed, 64. 
 meaning of characters in, may be shown, 67. 
 attorney not bound to produce, 89. 
 one who signs without examining, estopped, 125. 
 one giving to corporation, estopped, 125. 
 putting in evidence, signed by decedent, effect of, 155. 
 maker of, competent to testify in favor of indorser, 155. 
 indorsers competent to testify in actions between themselves, 155. 
 transferee of negotiable, not assignee, 156. 
 witness may testify that it has been altered, 158. 
 not testimony, 161. 
 
 interested party may show contents of, in possession of decedent's rep- 
 resentative, 167. 
 ■declaration of holder binds his assignee, when, 212. 
 indorsement of payment as evidence, 220. 
 counterpart, primary evidence, 224. 
 ■duplicate, primary evidence, 225. 
 lithographic copy, 225. 
 photographic copy, 225. 
 printed copy, 225. 
 
 execution not necessai-y to bfe proved, when, 226. 
 duly acknowledged, how proved, 236. 
 executed by public officer, 326. 
 proof of handwriting of attesting witness, 227. 
 •declaration of maker as to execution of, 227. 
 proof of execution by maker, 328. 
 witness to handwriting must identify writer, 228. 
 acknowledgment of maker, 229. 
 proof of sealing of, 229. 
 proof of delivery, 229. 
 ■proof of posting, evidence of delivery, 230. 
 'date of, by proof of posting, 330. 
 proof of, by one attesting witness, 231. 
 proof of, where all attesting witnesses are dead, 331. 
 pi'oof of, where all attesting witnesses are out of jurisdiction, 331. 
 
INDEX. 805' 
 
 References are to pages, 
 
 INSTRUMENTS (continued) — 
 ancient, how proved, 333. 
 custody of ancient, 233. 
 examined copies, 334. 
 general records of the nation, 335. 
 
 production of certiiied copy proof of execution of original, 335. 
 by whom to be certified, 335. 
 
 exemplifications, 235. i 
 
 copy of copy, not evidence, 339. 
 
 contents of, may be proved by verbal proof on voir dire, 240. 
 contents of voluminous may be proved by parol, 240. 
 in the hands of the opposite party, who refuses to produce, 241. 
 beyond the jurisdiction of the court, proved by parol, 241, 
 search for, 245, 346. 
 notice to produce, 346. 
 when need not produce, 244. 
 that has accomplished its purpose, 244. 
 in the hands of a stranger, 251. 
 sufficiency of secondary evidence of, 353. 
 fraudulent destruction of, 253. 
 cannot be contradicted by parol, 263. 
 cannot be altered by parol, 263. 
 incomplete, may be aided by parol evidence, 263, 
 custom annexed to, by parol, 363. 
 where does not purport to be complete, 265. 
 where does appear to be complete, 265. 
 rule in Pennsylvania, 365. 
 parol not admissible to explain, 266. 
 
 parol evidence admissible to show meaning of characters, 268. 
 parol evidence admissible to show technical expressions, 368. 
 parol evidence admissible to show abbreviations, 868. 
 parol evidence admissible to explain ambiguities, 268. 
 parol evidence admissible to identify person and thing mentioned, 368, 
 parol evidence admissible to show circumstances of the case, 368. 
 parol evidence admissible to ascertain the relation of words, 268, 
 parol evidence admissible as to intent of parties, 269. 
 presumption as to time of performance, 270. 
 surrounding circumstances in aid of construction, 268, 375. 
 latent and patent ambiguities, 278, 279. 
 custom and usage annexed to, 382, 284. 
 meaning of words interpreted by usage, 203. 
 unilateral, what are, 295. 
 
 want of consideration of, may be shown by parol, 300, 801. 
 consideration different, may be shown by parol, 300, 301. 
 parol evidence to complete, when writing is only a part, 303, 
 bills of lading may be proved by parol, 319. 
 subsequent changes of, may be proved by parol, 320. 
 time for performance may be eiilai'ged by parol, 320. 
 
800 INDEX. 
 
 Beferences are to pages. 
 
 INSTRUMENTS (continued) — 
 
 time of payment of, may be enlarged by parol, 320. 
 
 relation of parties to, how shown, 333. 
 
 parol contract superseding, 324. 
 
 conditions upon which it was delivered, SSft 
 
 mistake in, may be shown by parol, 33i 
 
 fraud in obtaining, 335. 
 
 when written may be contradicted by parol, 335. 
 
 as hearsay, 418. 
 
 presumption as to, regular on their face, 619. 
 
 party offering altered, must explain, 644. 
 
 INSTRUMENT THAT HAS ACCOMPLISHED ITS PURPOSE — 
 
 contents of, may be shown by parol, 344. 
 INSUFFICIENCY OF PLEADING — 
 
 effect of, 69, 70. 
 INSURANCE — 
 
 performance of conditions, 608. 
 
 perils of the sea, 608. 
 
 unseaworthiness presumed, 608. 
 
 deviation, 608. 
 
 proof of loss, 608. 
 
 technical estoppel will not shut out truth, 127. 
 
 preliminary proofs of loss do not create an estoppel, 137. 
 
 does not apply to proof of loss against insurance company, 150. 
 
 wife competent to testify against assignee of deceased husband, 150. 
 
 officers of company competent to testify against deceased party, 166. 
 
 beneficiary not bound by statement of insured, 315. 
 
 surrounding circumstances in aid of construction, 368, 375. 
 
 burden of proof as to exceptions, 348. 
 
 as to waiver of conditions, 343. 
 
 burden of proof of negligence, 349. 
 INTENT — 
 
 proof of, relevant when, 557, 
 
 presumed when, 557, 633. 
 
 provable from other similar acts, 14 
 
 inferred by law, 665, 668. 
 
 evidence of, 559. 
 
 declaration of party doing act, 13, 558, 559. 
 
 a party may state why he did or did not do a thing, 13, 559. 
 
 when party may swear to his intentions, 356. 
 
 to deceive, must be alleged, 50. 
 
 one estopped by, 187. 
 
 of parties to written contract, cannot be shown by parol, S69, 559. 
 
 parol evidence to explain ambiguity, 273, 
 
 parol evidence of, how ascertained, 878. 
 
 parol evidence to show that writing purporting to be contract was not 
 intended as such, 897. 
 
INDEX. 807 
 
 References are to pages. 
 INTENT (continued) — 
 
 must be shown by whom, 356, 557. 
 necessary to gift, when, 374. 
 evidence of wife to charge separate estate, 403. 
 party may state his intent in striking, 56, 558. 
 
 his intent in taking a mortgage, 558, 561. 
 that he never parted witli deed with intent to pass prop- 
 erty, 558. 
 that he never delivered possession of property, 563. , 
 
 party may testify that he did not intend to hinder or delay creditors, 558L 
 that by executing a second lease he had no, of for- 
 feiting the first, 558. 
 conductor may testify that he had no, of expelling party, 559. 
 witness may testify that ho had no, to hurt complainant, 559, 
 defendant in libel may state that he had no ill-will, 559. 
 person may testify as to his, in returning from a street, 563. 
 defendant in libel may testify that he had no, to charge plaintiflE with 
 
 crime, 562. 
 absence of, 656, 
 
 INTENTION OF PARTIES — 
 how ascertained, 368, 871. 
 parol evidence to show, 373, 297. 
 
 INTEREST— 
 
 declarations against, 456. 
 declarations against pecuniary, 457. 
 disqualifying, 168. 
 
 relation between the witness and party may be shown, 83. 
 defendant cannot show that the plaintiff is not the real party under gen- 
 eral denial, 47. 
 what disqualifies as a witness, 168, 170. 
 privity of, necessary to admission, 301, 
 joint, effect of, 314 
 public, what is, 416. 
 INTERLINEATION — 
 presumption as to, 390. 
 burden of proof as to, 391. 
 INTERNATIONAL COMITY — 
 
 presumed, when, 183, 198. 
 INTERPRETATION — 
 of contract, 368. 
 parol evidence to show meaning of characters, 268. 
 
 to show technical expressions, 368. 
 
 to show abbreviations, 368, 273, 278. 
 
 to explain ambiguities, 279. 
 
 to identify the person or thing mentioned, 368. 
 
 to show circumstances of the case, 368. 
 
 to ascertain the relation of word, 368. 
 
803 INDEX. 
 
 Beferences are to pages. 
 
 INTERPRETATION (continued)— 
 
 parol evidence as to intent of parties, 269. 
 
 how ascertained, 273. 
 
 of surrounding circumstances, 375. 
 
 mode of, 274. 
 proof of custom and usage, mode of, 276, 277, 
 proof of forms of expression, 277. 
 meaning of words by usage, 292. 
 preliminary negotiations and conversations, 296. 
 of wills, 389. 
 
 Interpreter— 
 
 people must show that he gave the exact words of confession, 216, 229. 
 
 may give dying declarations, 137.' 
 
 of evidence given by deaf and dumb person may be impeached, how, 
 35, 38. 
 
 rule as to confidential communications between attorney and client ex- 
 tends to, 86. 
 
 when is agent, 208. 
 
 when agent is not, 208. 
 INTESTATE — 
 
 declarations of, as against administrator, 214, 215. 
 INTOXICATION — 
 
 proof of, 344, 583. 
 
 by whom may be proved, 344 
 
 trait of party, 23. 
 
 witness incompetent, when, 138. 
 
 burden of proof of, 344. 
 
 proof of, in civil damage cases, 344 
 IRRELEVANT — 
 
 evidence to prove averments of, 71. 
 ISSUE — 
 
 evidence must tend to prove, 10. 
 
 what is, 10, 40. 
 
 how formed, 40, 46. 
 
 burden of proof of, 338, 346. 
 
 bad character of plaintiff in malicious prosecution, 35. 
 
 evidence tending to show the temper, disposition or conduct of the wit- 
 ness, 33. 
 
 motives of witness are within, 33, 
 
 reputation of plaintiff in libel, 35. 
 
 bias of witness, how shown, 37. 
 
 necessary in all cases, 40. 
 
 action without pleadings, 40. 
 
 evidence must be within, 40. 
 
 evidence not within, incompetent, 41. 
 
 general, 44. 
 
 burden of proof on plaintiff, 44 
 
INDEX. 809' 
 
 References are to pages, 
 ISSUE (continued) — 
 
 defendant may show anything respecting the complaint, 44. 
 defense of bona fide purchaser incompetent under, 44. 
 verbal proof of written instruments collateral to, 334, 344. 
 of marriage, presumption of, 398. 
 person denying issue of marriage has burden of proof of, 398. 
 
 J. 
 
 JAILER— 
 
 entries of, 440. 
 
 JEW — 
 
 oath of, 135. 
 
 JOINT OBLIGORS — 
 
 admissions by one, 203, 406. 
 
 one may show that he is surety for the other, 315. 
 
 joint possession, res gestce, when, 406, 
 
 JOURNAL, OFFICIAL — 
 
 courts take judicial notice of, when, 183. 
 
 JUDGE — 
 
 his province, 8. 
 
 may ask questions, when, 716. 
 
 may resort to books, histories, etc., when, 197. 
 
 incompetent as a witness, when, 84, 103. 
 
 cannot be compelled to disclose anything, 84. 
 
 take judicial notice — 
 
 of all sovereigns of the world, 181. 
 
 of all tribunals and public officers, 181. 
 
 of public statutes, 181. 
 
 of public treaties, 181. 
 
 of national flags, 181. 
 
 of currency of a nation, 181. 
 
 of public seals, 181. 
 courts of one state cannot take judicial notice of the statutes of another 
 
 state, 183. 
 can take judicial notice — 
 
 of public message, 183. 
 
 of public journals, 183. 
 
 of public census, 183. 
 
 of war, 184 
 
 of weights and measures, 184. 
 
 of ports, 184. 
 
 of navigable rivers, 184. 
 
 of cities and towns, 184. 
 
 of charters, 184. 
 
 of laws of nations, 185. 
 
 of law merchant, 185. 
 
810 INDEX. 
 
 References are to pages. 
 
 JUDGE (continued) — 
 
 can take judicial notice (continued) — 
 
 of usage, 185. 
 
 of holidays, 185. 
 
 of custom, 185. 
 
 of oflScial signature, 185 
 
 of proclamation, 186. 
 
 of signature of governor, 186. 
 
 of public history, 184. 
 
 of general election, 186. 
 
 of oCBcial certificate, 186. 
 
 of all days, 186. 
 
 of railroads, 187, 194. 
 
 of meaning of words "brandy," "beer," "whisty," 187. 
 
 of telephones, 187. 
 
 of public boundaries, 189. 
 
 of newspapers, 190. 
 
 of mortality tables, 190. 
 
 of geographical and political divisions, 193. 
 
 of counties, towns and cities, 193. 
 
 of foreign statutes, 193. 
 
 of federal courts, 194. 
 must determine sufficiency of search for lost paper, 246. 
 must determine sufficiency of notice to produce, 347. 
 must determine sufficiency of evidence to go to the jury, 343. 
 to determine whether statement is res gestce, 485. 
 JUDGMENTS — 
 
 in actions of trespass, evidence of ownership, 91. 
 former, as res adjudicata, 108, 110. 
 of inferior courts, how proved, 114, 117. 
 binding upon whom, 113, 117. 
 parties and privies, who are, 110, 113, 
 in rem, 111, 115. 
 foreign, 116, 119. 
 
 defenses to, that may be proved, 11& 
 certified copies of, 336. 
 exemplifications of, 235. 
 examined copies of, 234. 
 as hearsay, 419. 
 effect of, 109. ' 
 
 criminal, not admissible in civil cases, 117. 
 defendant cannot show invalidity under general denial, 47. 
 JUDICIAL NOTICE — 
 will be taken — 
 
 of all sovereigns and rulers, 181. 
 
 of all tribunals and public offlcew of the nation, 181. 
 
 of public statutes, 181. 
 
 of treaties, 181. 
 
INDEX. 811 
 
 t 
 
 Befei-ences are to pages. 
 
 JUDICIAL NOTICE (continued) — 
 will be taken (continued) — 
 of national flags, 181. 
 of the currency of the nation, 181. 
 of public seals, 181. 
 of public messages, 183. 
 of official journals, 183. 
 of public census, 183. 
 of wars, 184. 
 
 of weights and measures, 184. 
 of ports, 184. 
 of navigable rivers, 184. 
 
 of geographical position of cities and towns, 184, 
 of holidays, 185. 
 of customs, 185. 
 of oflQcial signature, 186. 
 of signature of governor, 186. 
 of public histories, 186. 
 of general elections, 186. 
 of official certificates, 186. 
 of all days, 186. 
 of railroads, 187, 197. 
 of contents of bible, 187. 
 
 of meaning of words " beer," brandy," etc., 187. 
 of telephones, 187. 
 of public boundaries, 189. 
 of newspapers, 190. 
 of mortality tables, 190. 
 of geographical divisions, 193. 
 of political divisions, 193. 
 of town, village, city, 193. 
 of foreign statutes, 193. 
 of federal courts, 194. 
 of photographic pictures, 859. 
 courts of one state cannot take, of the statutes of another state, 183. 
 
 JUDICIAL PROCEEDINGS — 
 
 regularity of, presumed when, 603, 603. 
 
 of inferior courts, 604. 
 
 of foreign courts, 603. 
 
 certified copies of, 237. 
 JURISDICTION — 
 
 want of, may be shown when, 111. 
 
 of inferior courts, 603, 605. 
 
 of foreign courts, HI. 
 
 allegation of, duly made, given or taken is sufficient, 67, 111. 
 
 courts of limited, must be shown. 111. 
 
 recital of facts not conclusive, 111. 
 
 writing without, may be shown when, 245. 
 
S13 INDEX. 
 
 Beferences are to pages, 
 
 JURORS — 
 
 proceedings to be kept secret, 103. 
 competency as witnesses, 103. 
 proTince of, on trial of issue, 8. 
 
 should not be present at examination as to competency of confessions, 
 318. 
 
 K. 
 
 KNOWLEDGE — 
 
 by holder of commercial paper, 16. 
 
 from notoriety, 13. 
 
 of proof of payment, 9. 
 
 similar accidents at same place, 15. 
 
 similar accidents at other places, 15. 
 
 that horse was a stumbler, 16. 
 
 that horses had been frightened at same place, 15. 
 
 what witness said on another occasion, 13. 
 
 acts to show, 15. 
 
 of fraud, must be alleged, 50. 
 
 plaintiff's knowledge of fraud, 51. 
 
 sufficient to make witness testify to handwriting, 228. 
 
 by seeing the person write, 228. 
 
 by having seen writings purporting to have been made by party, 238. 
 
 of the law, is not presumed as matter of fact, 345. 
 
 L. 
 
 LABOR — 
 
 a general allegation for work and labor is sufficient, 54. 
 under a quantum meruit a plaintiff cannot prove a contract, 54. 
 under an allegation of special contract plaintiff must prove it, 54. 
 the time alleged must be proved, 54. 
 
 evidence of excuse for non-performance cannot be shown under allega- 
 tion of performance, 55. 
 that the work was unskilfully done, 55. 
 that nothing is due the plaintiff, 55. 
 that the contract is void under the statutes, 55. 
 
 LAND UNDER WATER — 
 title to, 653. 
 
 LANDLORD — 
 
 tenant estopped from denying title of, 120. 
 cannot vary terms of lease by parol, when, 322. 
 parol contract to put premises In repair, 323. 
 parol contract of lessor to make repairs, 324 
 
 LANGUAGE — 
 
 of writing, how construed, 369, 271. 
 technical words in, 585. 
 
LAPSING — 
 
 of legacy, 394 
 
 LARCENY — 
 
 custody of goods by thief, 670. 
 
 pieces of ears, 257. 
 
 hide sold by defendant, 357, 
 
 LATENT AMBIGUITIES — 
 what are, 389, 394, 278, 280. 
 how shown, 279, 281, 389, 394 
 in wills, 280, 389, 394 
 in consideration, 300. 
 
 LAW MERCHANT — 
 
 courts take judicial notice of, 185. 
 
 LAWS — 
 
 judicially noticed, when, 181, 184 
 acts of state, how proved, 338. 
 interstate, 238. 
 certified copies, 238. 
 exemplifications, 235. 
 examined copies, 234 
 public records of state, 237. 
 legislative acts, 236. 
 printed copies evidence, 238. 
 
 LAW OF NATIONS — 
 
 courts take judicial notice of, 185. 
 acts of state, how proved, 338. 
 interstate, 238. 
 certified copies, 238. 
 exemplifications, 335. 
 examined copies, 234 
 public records of state, 337. 
 legislative acts, 236. 
 
 LAWFUL NON-PRODUCTION OF WRITING ■ 
 by a stranger, 251. 
 
 refusal to produce upon subpoena, 251. 
 refusal of agent to produce, 251. 
 
 LAWFULNESS — 
 
 of acts, presumed when, 635, 637. 
 
 LAYING FOUNDATION FOE — 
 admissions of privies, 202. 
 
 LEADING QUESTIONS — 
 what are, 696, 700. 
 when permitted, 700, 703. 
 discretionary with the court, when, 698, 700. 
 
 INDEX. 813 
 
 References are to pages. 
 
814 INDEX. 
 
 Beferences are to pages. 
 LEASE — 
 
 when must be pleaded, 53. 
 
 when affected by custom, 384, 293. 
 
 eviction, 52. 
 
 assignee, 53. 
 
 written cannot be varied by parol, 333. 
 
 may be defeated by parol, 333. 
 
 description of property in, 338. 
 
 parol contract to put premises in repair, 333. 
 
 of lessor to make repairs, 334. 
 
 contract about which it is silent, 334. 
 
 to show an agreement subsequently made, 384. 
 
 LEGAL ESTATE— 
 
 presumed when, 646. 
 LEGAL QUESTIONS — 
 
 witness cannot state conclusion. 563. 
 attorneys may state, when, 563. 
 
 witness may testify that he never delivered possession of property,, 563. 
 that he never puichased any goods from the seller, 563. 
 that services were never performed under the contract, 563. 
 witness cannot testify that certain persolis were joint owners of land, 563. 
 
 that person exercised acts of ownership over property, 563. 
 witness may testify that person went into possession of and controlled 
 
 land, 564. 
 witness cannot testify to his ownership when ownership is in issue, 564. 
 that he performed his part of the contract, 564, 565. 
 that he had performed all the duties imposed upon him by the con- 
 tract, 564. 
 experts may testify to a foreign unwritten lajv, 564. 
 witness cannot testify that he took control of property as individual or 
 
 assignee, 564. 
 witness may testify that she became engaged to defendant, 565. 
 witness cannot state that a contract has been abandoned, 565. 
 that a contract was made, 565. 
 that he was discharged without fault, 565. 
 party may testify that debts were contracted on the faith of a promise, 
 
 565. 
 witness may testify on the part and behalf of person for whom he did 
 work, 565. 
 LEGATEE — 
 
 when a competent witness, 171. 
 
 action against for debt of ancestor, 60, 387. 
 
 incompetent to testify against estate of deceased persouj when, 163, 171, 
 
 173. 
 cannot testify in support of a will, 164. 
 may testify in aid of a contestant, 164. 
 not named in will, 391. 
 ademption, what is, 394. 
 ademption of property given, 394 
 
INDEX. 815 
 
 Meferencea are to pages, 
 LEGISLATIVE ACTS — 
 
 of states and territories, 236. 
 how proved, 336. 
 of United States, 337. 
 charter of corporations, 376. 
 
 LEGITIMACY — 
 
 presumption of, 343, 895, 398, 631. 
 proof of, 14. 
 
 declaration of wife or paramour as to, 14, 144. 
 who cannot testify to declaration of parents as to, 163, 
 , party denying, has burden of proof, 398. 
 
 declarations of mother not always competent, 428. 
 declaration of a person as to his own, 437. 
 declaration of husband as to wife's, 437. 
 declaration of wife as to, of husband's family, 437. 
 
 LETTERS — 
 
 replies to, 207. 
 
 cross-examination as to, 699. 
 
 post-marks as proof of, 230. 
 
 of wife to husband, 106. 
 
 delivery presumed, when. 839. 
 
 by one conspirator against others, 516. 
 
 passing, between attorney and client, confidential, 87. 
 
 attorney not bound to produce, 89. 
 
 witness may testify that certain, found in decedent's possession were in 
 
 testator's handwriting, 158. 
 between husband and wife, privileged, 106. 
 admission by neglect to reply to, 207. 
 proof of posting by entries, 337. 
 proof or^elivery, when, 339. 
 proof of posting of, 230. 
 
 proof of posting, evidence of delivery, 230, 645. 
 original must be produced, 233. 
 notice to produce, when necessary, 347. 
 written to party out of state, 254 
 testamentary, 383. 
 of administration, 383. 
 recitals of, 382. 
 declaration of father in, as to age of child, 439. 
 
 LIBEL — 
 
 presumption of malice from, 694, 
 
 pleading of, 13. 
 
 special character, 33, 
 
 defense, 341, 359. 
 
 damages, 694. 
 
 repetition of, 12. 
 
 effect on third parties, 14 
 
616 INDEX. 
 
 Befereiices are to pages, 
 LIBEL (continued) — 
 
 reputation directly in issue in, 23, 35. 
 
 particular as to, 24. 
 
 plaintiff may show good character, 35. 
 
 matter of inducement not admitted by failure to deny, 48. 
 
 specific acts of lewdness may be shown, when, 48. 
 
 defendant may testify that he had no ill-will against plaintiff, 559. 
 
 defendant may state that lie did not intend to charge plaintiff with crime, 
 562. 
 
 witness may testify as to his understanding of libelous words, 562. 
 
 repetition of, to enhance damages, 694. 
 LICENSE — 
 
 must be shown by party having it, 44, 361. 
 
 must be proved by defendant, when, 44, 361i 
 
 ancient, general history as proof of, 421. 
 LICENSEE — 
 
 cannot dispute license of licensor, 130. 
 LIFE — 
 
 presumptions as to, 396, 627. 
 
 until after lapse of seven years, 396, 639, 
 
 presumptions as to absentees, 628. 
 
 not been heard of, meaning of, 639. 
 
 residence of absentee, 629. 
 
 presumption of, before seven years, 639. 
 LIMITATIONS — 
 
 of action, 346, 347. 
 
 new promise, 346, 347. 
 
 what amounts to, 346, 347. 
 
 joint-debtors' acknowledgment, 313, 
 
 defendant cannot show under general denial, 46. 
 
 statute of, must be pleaded, 47. 
 
 as to prosecution of crime, effect of as to witness, 75. 
 
 admissions of partners, 318. 
 
 indorsement of payment as evidence, 220. 
 
 burden of proof of, 361. 
 
 presumptions of payment, 688. 
 
 presumptions other than by lapse of time, 689. 
 
 title to real estate by, 648. 
 
 LIQUORS — 
 
 experts as to, 845, 
 LIS MOTA — 
 
 what is, 423. 
 
 effect of, 433. 
 
 must be proved by whom, 481. 
 XOCAL CUSTOM— 
 
 competent, when, 289, 393. 
 
 how must be proved, 290, 293. 
 
INDEX. S17 
 
 References are to pages, 
 LOCAL CUSTOM (continued) — 
 
 adding incident to contract by, 393. 
 
 when not valid, 293. 
 
 meaning of words interpreted by, 393. 
 
 LOST WRITINGS — 
 
 when contents may be shown, 840. 
 how contents must be proved, 3i3. 
 
 LUNACY — 
 
 never presumed, 138, 655. 
 presumed to continue, 635. 
 must be pleaded, 50. 
 
 LUNATIC- 
 
 competent as a witness, when, 137. 
 
 decree for sale of estate binds everybody, 113, 
 
 incompetent as witness, when, 138. 
 
 no party can testify to a personal transaction or communication as 
 
 against his estate, 147. 
 party to an action, 148. 
 what interest disqualifies, 148. 
 husband inay testify for wife, when, 149. 
 wife may testify in favor of husband, when, 149. 
 widow, when competent in action against heirs, 149. 
 
 M. 
 
 MAGISTRATE — 
 
 judicial confessions to, 316. 
 MALICE — 
 
 presumed when, 694 
 
 evidence of, 667. 
 
 implied when, 664, 667. 
 
 what a person said on another occasion, 13. 
 
 of witness toward party, 36. 
 MALICIOUS PROSECUTION — 
 
 evidence of plaintiff's bad character admissible, 35. 
 
 defendant may testify that in setting on foot the, he believed there was 
 cause, 558. 
 MANUFACTURING — 
 
 of evidence, 632. 
 
 presumption as to, 631. 
 
 MAPS AND SURVEYS — 
 evidence when, 434, 435. 
 original must be produced, 333. 
 for refreshing memory, 858. 
 of a building set fire, 358. 
 as hearsay, 434, 
 53 
 
818 INDEX. 
 
 Beferences are to pages. 
 MARK — 
 
 of party to instrument, 230. 
 MARRIAGE — 
 
 facts as to family history, 425. 
 
 presumed when, 397. 
 
 declaration of man as to, 428. 
 
 proof of, 35, 433. 
 
 proof of, by conduct, 35, 434. 
 
 proof of, by admissions, 428. 
 
 provable by reputation, when, 433. 
 
 reputation as evidence of, 35, 438. 
 
 widow cannot testify to, 161. 
 
 certificate of, as res gestae, 397. 
 
 certificate of, as declaration of pedigree, 435. 
 
 proof of, necessary in case of bigamy, 106. 
 
 to make communications between husband and wife privileged, 106. 
 
 breach of promise of, 386. 
 
 presumption as to, 631. 
 MARRIED WOMEN — 
 
 allegation of coverture, when necessary, 59. 
 
 defendant cannot show coverture under general denial, 59. 
 
 incompetent to testify against husband in criminal cases, 141. 
 
 each competent as against the other as to crime committed upon wit- 
 ness, 142. 
 
 not competent as co-defendant against husband, 143. 
 
 not competent for a co-defendant against husband, when, 143. 
 
 lawful marriage must be shown to make witness incompetent, 143, 
 
 where husband and wife are jointly indicted, 143. 
 
 declarations of either are incompetent, 143. 
 
 dying declarations of husband or wife incompetent as against the other, 
 144. 
 
 may corroborate testimony of husband, 146. 
 
 wife of husband, party to action for real estate, incompetent, 150. . 
 
 competent to testify as to alibi as to co-defendant, 143. 
 MASTER — 
 
 liable for act of servant, 351, 352. 
 
 judgment against, when bar against servant, 114. 
 
 admission of, binds ship-owner, 315. 
 
 liable for injury to servant, 851. 
 
 liable for injury by servant, 351. 
 
 servant may testify that he believed there was no danger, 559. 
 
 MATTERS OF PUBLIC AND GENERAL INTEREST — 
 what are, 415. 
 pecuniary interest, declarant's opinion not, 417. 
 
 MATTERS PENDING SUIT — 
 of delivery of, 13. 
 
 not to aggravate or diminish damage, 12. 
 matters of inducement must be pleaded, 48. 
 
INDEX. , 319 
 
 Beferences are to pages, 
 MEDICAL WITNESS — 
 
 when privileged, 95, 100. 
 
 may give an opinion, 95, 100, 
 MEMORANDUM — 
 
 entries by public officers, 461. 
 
 refreshing memory by, 410, 468. 
 
 auctioneer's, best evidence, 356. 
 
 when it does not shut out parol evidence, 364. 
 
 under statute of frauds must contain all of agreement, 319. 
 
 all must be read together under statute of frauds, 319. 
 
 when must be made by witness, 471. 
 
 witness need not have independent recollection of, 471, 
 
 primary evidence, when, 471. 
 MEMORY — 
 
 refreshing of, 468, 470. 
 MERGER — 
 
 written contracts as, all prior contemporaneous oral, 264 
 
 when preliminary negotiations not merged in contract, 396. 
 MESSAGES, PUBLIC — 
 
 courts take judicial notice of, 188. 
 
 telephone, 531. 
 
 MINUTES — 
 
 parol evidence to vary, 483. 
 
 of corporate meeting, 481, 483. 
 
 authentication of, 483. 
 
 proved by parol, when, 480. 
 MISTAKE — 
 
 of fact, 53. 
 
 of law, 53. 
 
 must be alleged, 53, 71. 
 
 may be shown by parol, 263, 334 » 
 
 as to date, how shown, 316. 
 
 burden of proof of, 360. 
 MODIFICATION-^ 
 
 must be pleaded, when, 66. 
 MONEY HAD AND RECEIVED — 
 
 pleading in, 58. 
 
 personal representative cannot testify to payment to decedent, 159. 
 MONOMANIAC — 
 
 competent as a witness, when, 138. 
 MONUMENTS — 
 
 parol proof of inscriptions, 341. 
 
 may be proved by parol, 333. 
 MORTGAGE — 
 
 parol evidence to identify the subject or person, 371, 
 
 deed may be shown to be, 328. 
 
820 INDEX. 
 
 References are to pages. 
 MORTUARY TABLES — 
 as evidence, 477. 
 
 MOTHER — 
 
 competent to testify in favor of children, 151. 
 
 of illegitimate child, competent to testify against estate of putative 
 
 father, 151. 
 may testify to birth of child, as against decedent's estate, 157. 
 view of child to show relationship, 256. 
 advancement from, to child, 388. 
 domicile of, that of child, 395. 
 
 MOTIONS TO STRIKE OUT — 
 
 confidential communications between attorney and client, 85. 
 incompetent evidence given by interested party, 164. 
 
 MOTIVE — 
 proof of, 36. 
 
 may be shown by direct statement of party, 13, 557. 
 proof of corrupt, 36. 
 
 party may state his object and, in striking, 558, 561. 
 witness may state his, in taking mortgage, 558, 561. 
 
 that he never parted with deed with intent to pass property, 558. 
 
 that he did not intend to hinder or delay creditors, 558. 
 
 that by executing a second lease he did not intend to forfeit the 
 first, 558. 
 a conductor may testify that he did not intend to expel party, 559. 
 witness may tftstify that he had no intention to hurt plaintiff, 559. 
 defendant in libel may testify that he had no ill-will against plaintiff, 559. 
 a person may testify as to his, in returning from the street, 562. 
 defendant in libel may state that he did not intend to charge plaintiff 
 
 with crime, 563. 
 presumptions as to, 634 
 absence of, 656. 
 
 MURDER — 
 
 change of pecuniary condition of defendant, relevant when, 10. 
 
 that defendant knocked down another person prior to the time 
 charged, 19. 
 
 previous attempts by defendant to injure deceased, 19. 
 
 that defendant endeavored to secure the assistance of others to cheat 
 deceased out of his money, 19. 
 
 attempt by defendant to rob another person, 19. 
 dangerous character of deceased may be shown, 36. 
 wife competent to testify against husband in, 106. 
 bullet taken from deceased, 858. 
 pistol and cartridges taken from defendant, 258. 
 jury may view premises, 258. 
 clothing worn by deceased, 257. 
 X-ray process, when admissible, 361. 
 
INDEX. 821 
 
 References are to pages. 
 MURDER (continued) — 
 
 burden of proving self-defense is upon defendant, 361. 
 presumptions in favor of innocence, 655. 
 good character of prisoner presumed, 656. 
 absence of motive must be shown, 656, 
 prisoner must show alibi, 657. 
 prisoner must show insanity, 657. 
 communication to defendant, competent when, 658. 
 I people must show corpus delicti, 661. 
 
 discovery of body in case of, 663. 
 
 cause of death, 663. 
 
 infanticide, 663. 
 presumption of guilt, 664. 
 other crimes may be shown, when, 666. 
 people may show malice, 667. 
 
 attempt to commit the same crime at another time, 668. 
 
 threats of prisoner, 668. 
 
 recent possession of fruits of crime, 670. 
 
 unexplained suspicious appearances, 671. 
 
 attempts to stifle investigation, 671. 
 
 concealment, disguise and flight, 671. 
 
 silence of accused when charged with crime, 673. 
 
 spoliation of evidence by prisoner, 673. 
 
 affectation of grief, 673. 
 
 complication of evidence by prisoner, 673, 
 
 identity of prisoner, 673. 
 defendant may show threats by deceased, 669. 
 
 N. 
 
 NAME — 
 
 identity of, 871. 
 
 living under an assumed, 307. 
 
 of parties to commercial paper, 314. 
 
 proved by family history, 436. 
 
 NEGATIVE — 
 
 by whom to be proved, 44, 46. 
 
 evidence is secondary, 11. 
 
 fact that party made no claim, 11. 
 
 good character, 11. 
 
 witness may say he did not hear, 11. 
 
 NEGLIGENCE — 
 
 burden of proof of, 347, 353. 
 
 capacity of machinery, 16. 
 
 committed abroad, 353. 
 
 pleading of, 49. 
 
 declaration of agent as to capacity in which he was acting, 14 
 
 happening of similar accident in same place, 15, 
 
S22 INDEX. 
 
 References are to pages. 
 
 NEGLIGENCE (continued) — 
 
 happening of similar accident in another place, 15. 
 
 other horses frightened at same place, 15. 
 
 that horse was used to stumbling, 15. 
 
 habits of horse, 16. 
 
 test of horses, 16. 
 
 proof that signals were not given at another place, 16. 
 
 proof that other persons had been affected in the same way, 17. 
 
 danger of other persons, 17. 
 ; that cindei's had caused fire at other places, 17. 
 
 of sand in sewer at time of overflow, 18. 
 
 hole in sidewalk a year after accident, 18. 
 
 other loose planks in sidewalk, 18. 
 
 piling snow in other places, 18. 
 
 that engines emitted more sparks at a heavy grade, 18. 
 
 proof of, under general denial, 46. 
 
 presumptions of, 347, 352. 
 
 when contractual relation exists between parties, 347. 
 
 when duty to use ordinary care, 847. 
 
 proof of happening of accident, presumptions of, 348. 
 
 presumptions from train or car leaving track, 348. 
 
 plaintiff must show, when, 349. 
 
 suflSciency of evidence to go to the jury, 349. 
 
 master liable for injury to servant, 351. 
 
 master liable for injury by servant, 351. 
 
 master liable for acts of servant, 351. 
 
 implied admissions of, 351. 
 
 of telegraph company, 354. 
 
 presumptions as to, 605, 608. 
 NEGLIGENCE COMMITTED ABROAD — 
 
 actionable when, 353. 
 NEGOTIABLE INSTRUMENT — 
 
 not impeachable by party, when, 130. 
 
 notice of defects in, 16. 
 
 notice by sale of other paper, 17. 
 
 destruction of, may not be alleged, 53. 
 
 alteration of, must be alleged, 53. 
 
 demand and notice of dishonor, must be alleged, 53. 
 
 excuse for failing to demand, must be alleged, 53. 
 
 subsequent promise to pay, 53. 
 
 title in another, not admissible under general denial, 53. 
 
 one having given currency to, not competent to discredit it, 130. 
 
 transferee of, not an assignee, 156. 
 
 authority of agent to make, 316. 
 
 form of, when made by agent, 316. 
 
 evidence to exonerate agent, 317. 
 
 evidence to bind principal, 317. 
 
 evidence to show that writing apparently absolute is not, 318. 
 
INDEX. ■ 823 
 
 References are to pages, 
 
 NEGOTIABLE INSTRUMENT (continued)— 
 presumption as to, 616, 620. 
 presumption as to consideration of, 618. 
 presumption as to protest of, 618. 
 
 NEGOTIATIONS — 
 
 preliminary, in aid of oonstrucUo.n, 296. 
 
 NEW PROMISE— . 
 by one partner, 202. 
 limitations waived by, 346, 347. 
 •when may be shown though not alleged, 50. 
 
 NEWSPAPER ARTICLES — 
 relevant when, 7. 
 
 NEXT OF KIN — 
 
 relation must be pleaded, how, 60. 
 
 action against, for debt of ancestor, 60, 387. 
 
 statute must be specially pleaded, 60. 
 
 incompetent to testify against estate of deceased person, 153. 
 
 NOMINAL PARTY — 
 admissions of, 215. 
 
 NON-ACCESS- 
 
 wife or husband in-competent to prove, 104 
 
 NON-EXPERTS — 
 
 may testify as to what frightened horses, 529. 
 as to tlie cause of the overflow of a river, 529. 
 that he could have heard a whistle if sounded, 529, 586. 
 whether the bed he saw had been recently slept in, 543. 
 that a person's elbow could not have been out of a oar window, 531. 
 as subscribing witnesses, may testify as to mental condition of testator, 
 
 553. 
 may compare mind of a party with that of a child, 553. 
 have been allowed to give opinions as to competency of party to make a 
 
 will, 553. 
 have been allowed to say that they saw no signs of insanity about a per- 
 son, 553. 
 may testify that a person was vicious, 554. 
 
 may give their opinion as to whether acts or remarks of a person ap- 
 peared rational or irrational, 554. 
 witnesses present at execution of will may testify as to mental capacity 
 
 of testator, 555. 
 may testify that a person appeared worried, 560. 
 that a person exhibited mental anguish, 560. 
 that two persons were friendly, 560. 
 that a person appeared mad or to be in fun, 560. 
 that persons were talking mad, 560. 
 cannot testify as to what certain sounds indicated, 560. 
 
824: INDEX. 
 
 Beferences are to pages. 
 
 NON-EXPERTS (continued) — 
 
 witness may testify as to his belief in identity of a person, 560. 
 
 whether animals' tracks would indicate they were running, 561. 
 as to condition and appearance of plaintiff, 566. 
 as to condition of health or to the pain suffered by the injured per- 
 son, 566, 587, 588. 
 a party may testify as to permanent character of injuries, 566. 
 to the effect of an injury, 566. 
 to the length, depth and direction of wounds, 566. 
 to the eyesight of a party, 571. 
 to the hearing of a party, 571. 
 that there was nothihg to prevent him from hearing, 586. 
 
 NOTARIES — 
 
 certificate of protest, evidence, 440. 
 entries made by, evidence, 439. 
 judicial notice of seals, 186. 
 
 NOTES, PROMISSORY — 
 
 notice of defects in, 16, 309, 317. 
 
 promise to pay note after dishonor, 43. 
 
 destruction of, may be alleged, 58. 
 
 alteration of, must be alleged, 53. 
 
 demand and notice of dishonor must be alleged, 58. 
 
 excuse for failing to demand must be alleged, 53. 
 
 subsequent promise to pay, 53. 
 
 judgment against prior by subsequent indorser, conclusive, 113. 
 
 one having given currency to, not competent to discredit it, 130. 
 
 putting in evidence note signed by decedent, effect of, 155. 
 
 maker of, competent to testify in favor of indorser, 155. 
 
 indorsers competent to testify in actions between themselves, 155. 
 
 transferee not an assignee, 156. 
 
 witness may testify that, has been altered, 158. 
 
 witness may state that indorsement was on, at time of delivery to him, 
 
 167. 
 indorsee not in privity with indorser, 201, 
 admission by holder before due, 202. 
 admission by holder after due, 203. 
 declaration of holder binds his assignee, when, 213. 
 indorsement of payment as evidence, 220. 
 contents cannot be varied by parol, 266, 309. 
 parol not admissible to explain, 266, 310, 312. 
 
 to show that they were to be paid on a contingency, '366. 
 
 that note made by agent was for principal, 272. 
 
 that payee was agent of plaintiff, 272. 
 
 that party signed note as witness, 273. 
 prior or contemporaneous parol agreement not admissible, 309. 
 understanding of parties as to, when admissible, 309. 
 
 that one appearing as maker signed as surety, 310. 
 
INDEX. 825 
 
 Beferences are to pages. 
 
 NOTES, PROMISSORY (continued) — 
 
 parol evidence to vary, as between original parties to, 310. 
 
 to varyi as against a holder in due course, 310. 
 
 that it was executed as a mere receipt, 310. 
 
 admissible to show use of accommodation, 310. 
 
 admissible to show that an indorsement in blank was without re- 
 course, 311. 
 as to intention of irregular indorser, 811. 
 ambiguity in, explained, 311. 
 time of indorsement may be shown, 312. 
 when ambiguityi is dissipated, parol evidence ceases to be admissible, 
 
 313. 
 true relation of parties may be shown, when, 314, 
 names of parties to, how shown, 314. 
 mistake in date may be shown, when, 310. 
 presumption as to date, 316. 
 authority of agent to make, 316. 
 form of, by agent, 316. 
 evidence to exonerate agent, 317. 
 evidence to bind principal, 317. 
 
 evidence to show that writing apparently absolute is not, 318. 
 time of payment of, may be changed by parol, 330. 
 •^waiver of demand and notice, 326. 
 conditions upon which note was delivered, 339. 
 witness may state whether he signed as maker or surety, 563. 
 presumptions of protest of, 618. 
 
 NOTICE — 
 
 as to bona fide holder of paper, 16. 
 
 as bona fide holder by sale of other papers, 17. 
 
 to produce writing, 216. 
 
 judicial, 186. 
 
 from notoriety, 15. 
 
 from length of time, 15. 
 
 happening of prior accident in same place, 15. 
 
 happening of prior accident in another place, 15. 
 
 other horses frightened at same place, 15. 
 
 cars leaving track, 15. 
 
 that horse was used to stumbling, 16. 
 
 habits of horse, 16. 
 
 vpitness cannot state that he left, at decedent's house, 157. 
 
 proof of service of, by entries in books, 237. 
 
 proof of delivery, 329. 
 
 to produce documents, 346. 
 
 proof of posting, 345. 
 
 proof of by parol, 245. 
 
 proof of contents of, 245. 
 
 courts take, of photographs, 359. 
 
 subsequent promise to pay admissible under demand and notice,. 53. 
 
826 INDEX. 
 
 References are to pages. 
 NOTICE (continued) — 
 
 of assignment, eifect of, 374. 
 
 of protest, 440. 
 
 presumptions as to, of protest, 618. 
 
 presumptions as to mailing, 818. 
 NOTICE TO PRODUCE PAPEE — 
 
 when necessary, 347. 
 
 sufficiency of, 247. 
 
 burden of proof upon whom, 247. 
 
 court must determine sufficiency of, 246, 249. 
 
 by subpoena duces tecum, 247. 
 
 effect of, 250. 
 
 one sufficient, 249. 
 
 must specify tlie paper desired, 249. 
 
 general notice sufficient, when, 249. 
 
 upon whom service is to be made, 249. 
 
 instrument must be in the hands of opposite party, 250. 
 
 party refusing to produce cannot use instrument, 250. 
 
 party must always show execution of the original, 250. 
 
 not sufficient to make document evidence, 250. 
 
 party giving, need not put instrument in evidence, 250. 
 
 refusal of agent to produce, 251. 
 
 cannot be given where instrument is lawfully withheld, 251. 
 
 NOTORIETY — 
 
 when evidence of notice, 15. 
 as proof of partnership, 406, 407. 
 
 NUISANCE — 
 
 damage, 677, 687. 
 
 o. 
 
 OATH — 
 
 affirmative, 134, 135. 
 
 by children of tender years, 136. 
 
 by Jew, 135. 
 
 nature of, 134, 135. 
 
 persons having no comprehension thereof, 136. 
 
 witnesses may be instructed as to, 136. 
 
 ■OBJECTIONS — 
 
 how taken to pleadings, 69. 
 
 under general allegations, 70. 
 
 under contingent allegations, 70. 
 
 under an averment of a conclusion different from facts alleged, 70. 
 
 to confidential communication between attorney and client, 85. 
 
 to privileged confidential communications, how taken, 88. 
 
 to confidential communications between physician and patient, 95. 
 
 must be interposed by whom, 98. 
 
 who entitled to object to, 108. 
 
 must be to improper evidence, 132. 
 
INDEX. 827 
 
 Seftrences are to pages. 
 OBJECTIONS (continued) — 
 
 who must object to competency of witness under burden of proof, 164 
 
 when must be made to competency of witness, 164, 
 
 must be made when, 164, 715. 
 
 grounds of objection to witness must be pointed out, 164, 717. 
 
 form of, as to competency of witness, 164, 718. 
 
 motions to strike out incompetent evidence, 104, 720. 
 
 when prisoner may oflfer, as to liis confessions, 216, 
 
 secondary evidence not objected to, 324. 
 
 to secondary evidence, 251. 
 
 general, to evidence, 715. 
 
 when sufficient, 717. 
 
 one, to same class of evidence, sufficient, 718. 
 
 to irresponsive answers, 718. 
 
 must assign the particular ground, 717. 
 
 to question by co-defendant, 719. 
 
 when to be made, 720. 
 
 OFFICE — 
 
 appointment to, presumed when, 403, 
 title of, must be alleged, 59. 
 
 OFFICER — 
 
 acts of, when confidential, 102. 
 
 justification of, how alleged, 59. 
 
 may prove justification of trespass under general denial, 49. 
 
 pleadings by and against, 59. 
 
 presumption of regular appointment, 613. 
 
 governor not bound to disclose information or produce papers, 103. 
 
 stopped by certificate, 125. 
 
 competent as witness against deceased parties, 166. 
 
 courts take judicial notice of, 181. 
 
 courts take judicial notice of signatures, 186. 
 
 election ; courts take judicial notice of, 186. 
 
 return of, not evidence in his own favor, 220, 405. 
 
 original returns of, must be produced, 233. 
 
 of corporations, 379. 
 
 acts of, presumed legal, 379. 
 
 proof of title to, not necessary, when, 403. 
 
 when suing for property, 403. 
 
 certificate of election, 403. 
 
 oath of, 403. 
 
 contract by public, 404. 
 
 presumed to have done his duty, 405, 590. 
 
 defending actions, 404. 
 
 de facto, what is, 404. 
 
 return of, as against him, 405, 
 
 entries of, as evidence, 439. 
 
 certificate of protest of notary, 440. 
 
828 INDEX. 
 
 'References are to pages. 
 OFFICER (continued) — 
 
 entries made by jailer, 440. 
 
 recitals of public acts and statutes, 440. 
 
 presumption of capacity, 613. 
 
 OFFICIAL CERTIFICATE — 
 
 competent proof of what facts, 405, 
 OFFICIAL COMMUNICATIONS — 
 
 privileged when, 102. 
 OFFICIAL REGISTER — 
 
 proof of baptism, 435. 
 birth, 435. 
 marriage, 435. 
 OFFICIAL SEAL — 
 
 how proved, 237, 338. 
 
 state papers need no, 339. 
 
 courts take judicial notice of, 339. 
 ONOMASTIC WRITING — 
 
 what is, 573. 
 
 how proved, 573. 
 
 ONUS PROBANDI — 
 right to, 838. 
 
 where there are several issues, 389. 
 remains where, 840. 
 matter of mitigation, 341. 
 of delivery, 341. 
 acceptance of goods, 341, 
 as to exceptions, 843. 
 
 waiver, 343. 
 
 proviso, 843. 
 
 insurance, 843. 
 
 legitimacy, 343. 
 
 bills of exchange, 343. 
 shifting, 843. 
 for civil damages, 344. 
 penalties, 345. 
 civil penalties, 345, 
 as to intoxicating liquors, 345, 
 
 limitations, 846. 
 
 negligence, 347, 353. 
 
 when contractual relation exists, 347. 
 proof of happening of accident, presumption of negligence, 348. 
 presumptions from car leaving track, 348, 
 plaintiflE must show negligence, 349, 
 as to contributory negligence, 350. 
 in action by servant against master, 851. 
 negligence committed abroad, 853. 
 negligence of telegraph company, 354 
 
INDEX. 829 
 
 References are to pages, 
 
 ONUS PROBANDI (continued) — 
 of innocence, 355. 
 
 continuous fraudulent transaction, 355. 
 intent in fraud, 856. 
 as to constructive fraud, 368. 
 defenses — 
 
 burden of proof of, 359. 
 
 forfeiture, 360. 
 
 warranties, 360. 
 
 mistake, 360. 
 
 exemption, 360. 
 
 license, 861. 
 
 alibi, 363. 
 
 self-defense, 361. 
 
 release, 361. 
 
 statute of limitations, 361. 
 
 ultra vires, 363. 
 
 illegality of contract, 362. 
 person denying legitimacy has, 398. 
 person denying issue of marriage has, 398. 
 proof of relationship of declarant in pedigree cases, 430. 
 ante litem motam as to, 431. 
 
 OPEN AND CLOSE — 
 
 who has a right to, 338, 340. 
 
 OPENING DOOR FOR EXAMINATION — 
 effect of as to incompetency of witnesses, 175. 
 
 OPINIONS — 
 
 as to general reputation of a witness, 34. 
 
 form of question as to, to general reputation, 24 
 
 of physician as to mental condition of patient, 95. 
 
 are competent only where no better evidence is available, 533, 539. 
 
 witness skilled in science and art may give, 544 
 
 declarant's, not hearsay, 417. 
 
 as to what a party's future physical condition may be, 533. 
 
 the safety of a highway, 533. 
 
 the number of horse-power obtainable from a quantity of water, 533. 
 
 whether work was well done, 533. 
 
 whether fire was set at a proper time, 533. 
 
 effect of an accident upon shrinkage of cattle, 533. 
 
 value of stocks not dealt in, 534. 
 
 whether one person is sincerely attached to another, 534. 
 
 whether a bed which he saw appeared to have been slept in, 543. 
 
 what results will follow from injuries, 543. 
 
 existence of custom and usage, 543. 
 
 what would be the size of waves caused by a wind, 545. 
 
 the suitableness of a stable, 544. 
 
830 INDEX. 
 
 f 
 
 Eeferences are to pages. 
 
 OPINIONS (continued) — 
 
 incompetent, that a place was reasonably safe, 549. 
 was dangerous, 549. 
 
 that a fence was suflScient to hold stock, 549. 
 competent, that all that was possible was done to avoid collision, 550. 
 
 that a machine was not properly handled, 550. 
 
 whether a scuttle-hole in a sidewalk was safe, 550. 
 
 that revolving shafting is dangerous, 550. 
 
 that machinery was reasonably adapted to the purpose, 550. 
 incompetent, as to a person's testamentary capacity, 555. 
 as to legal conclusion, incompetent, 563. 
 
 competent to show whether note had been altered from "8" to "80," 
 579. 
 
 within what time a street car can be stopped, 546. 
 
 the distance within which a train can be stopped, 546. 
 
 how far on a railroad track stock can be seen, 546. 
 
 how fast a train is moving, 646. 
 as to how long a bridge usually lasts, 546. 
 as to how freight trains are made up, 551. 
 that a sidewalk was reasonably safe, 553. 
 that a vessel was properly loaded, 553. 
 
 of the usual and ordinary capacity of a man for doing business, 556. 
 of the nature and effect of a foreign and unwritten law, 566. 
 that certain stakes are surveyor's stakes, 583. 
 that animals killed by a railway were running at the time, 583. 
 competent, only when facts cannot be adequately placed before the jury, 
 533, 537. 
 
 as to what frightened horses, 539. 
 
 as to the cause of overflow of a river, 529. 
 
 as to expectation of life from mortality tables, 539. 
 
 that a whistle could have been heard if sounded, 539, 586. 
 
 that a bridge was sound, 530. 
 
 as to depreciation of rental of property, 530. 
 
 as to value of a farm with or without railroad crossing, 530. 
 
 as to whether accident was caused by failure of lever of engine, 531. 
 
 as to prospective profits, 531. 
 
 as to how an injury occurred to a ship, 531. 
 
 as to what must be the effect of injuries, 531. 
 
 as to the value of an agreement, 533. 
 
 as to whether a stain is human blood, 534. 
 incompetent to show what is a proper time to burn tallow, 535. 
 
 as to how a fracture was caused, 535. 
 
 whether a vessel or cargo could have been saved by certain acts, 
 535. 
 
 that a blow upon the ear made a person deaf, 536. 
 
 that fire would not destroy mats of grass, 537. 
 
 what is the proximate cause of an injury, 537. 
 
 that a certain person was an imbecile, 539. 
 
INDEX. 831 
 
 References are to pages. 
 OPINIONS (continued) — 
 
 competent, the effect of a certain internal injury, 540. 
 
 the probability of a party's recovery from injury, 540. 
 
 that a person was sane or insane, 540. 
 
 as to value of propferty, 678. 
 
 as to value of stock of goods, 681. 
 
 as to rental value of property, 681, 683. 
 
 as to value of services, 680, 683. 
 
 as to value of real estate, 688. 
 
 where there is no market value, 691. 
 not competent, of physician how an injury was caused, 535. 
 
 as to age of handwriting, 535. 
 
 as to value of a contract, 535. 
 
 as to the object of a transaction, 586. 
 
 as to application of libel, 536. 
 
 as to construction of a statute, 536. 
 
 as to whether a building was safe, 536. 
 
 as to pecuniary amount of damages which property has sustained, 
 536. 
 
 as to value of a loan of credit, 537. 
 is competent that the genital organs have not been penetrated by force, 
 
 533. 
 that a party was feigning sufifering, 533. 
 
 as to whether another witness' testimony shows him to be an expert, 533. 
 incompetent, that a certain condition could have resulted from a fall, 541. 
 
 whether pregnancy would result from first intercourse, 541. 
 
 a person's incapacity to concentrate his thoughts, 541. 
 
 as to value of property without a railroad, 543. 
 
 whether a trip across the ocean and shipment by rail would cause 
 animals to abort their young, 547. 
 
 whether a person was careful and skilful, 548. 
 is competent, that a turn-table is dangerous, 548. 
 
 that a platform was insuflSoient, 548. 
 
 that hardwood floor will become slippery, 549. 
 
 to measures necessary to prevent stranding, 549. 
 ORAL AGREEMENT — 
 
 independent of writing, 863. 
 
 oral will not be allowed to vary written, 865. 
 
 contemporaneous, merges in written, 364. 
 
 where writing not signed by both parties, 895. 
 
 presumption as to, 864. 
 
 collateral, 305. 
 
 where part only is put in writing, 334 
 
 ORAL EVIDENCE— 
 
 when admissible to prove contents of writing, 855. 
 to prove contents of lost writing, 839. 
 to prove contents of collateral writings, 239. 
 to prove contents of writing on voir dire, 840. 
 
-832 . INDEX. 
 
 References are to pages. 
 
 -DEAL EVIDENCE (continued) — 
 
 contents of voluminous papers may be proved by, 240. 
 
 appointment to public office may be proved by, 240. 
 
 papers in the hands of the opposite party who refuses to produce proved 
 by, 241. 
 
 papers beyond jurisdiction of court proved by, 241. 
 
 inscriptions on monuments proved by, 241. 
 
 contents of account books proved by, 242. 
 
 contents of shop-books may be proved by, 242. 
 
 contents of telegrams may be proved by, 245. 
 
 contents of writing collateral to issue may be proved by, 244. 
 
 writings not between the parties to the action may be proved by, 244. 
 
 instrument that has accomplished its purpose may be proved by, 344. 
 
 proof of notice by, 245. 
 
 contents of placards upon walls may be proved by, 245. 
 
 documents in the hands of a stranger, 251. 
 
 refusal of agent to produce writing may be proved by, 251. 
 
 letters written to party out of state may be proved by, 254. 
 
 dying declarations proved by, 254. 
 
 not competent to vary or contradict writing, when, 262. 
 
 not competent to contradict writing, when, 263. 
 
 not competent to add to writing, when, 263. 
 
 fraud in obtaining writing may be shown by, 263. 
 
 want of consideration may be shown by, 263. 
 
 mistake of fact may be shown by, 263. 
 
 illegality of writing may be shown by, 263. 
 
 collateral agreement to writing may be shown by, 2C3. 
 
 not excluded by memoranda, 263. 
 -oral contract will not be admitted to vary written, 265. 
 
 rule in Pennsylvania, 265. 
 
 not admissible to explain writing, 266. 
 
 in equity, allowed to vary writing, when, 267. 
 
 unilateral contract may be shown by, 295. 
 
 to show that a writing purporting to be a contract was not intended as 
 such, 297. 
 
 to explain receipt, 302. 
 
 to vary receipt, 302. 
 
 to contradict receipt, 302. 
 
 to complete a writing of which agreement only a part, 303. 
 •ORIGINAL — 
 
 instruments, what are, 224. 
 
 execution of, instrument must be shown, 250, 
 •OWNERSHIP — 
 
 possession as proof of, 646, 647. 
 
 acts of enjoyment, 9. 
 
 acts of, in trespass, 9. 
 
 woods, 9. 
 
 cutting of timber, evidence of, 9, 
 
INDEX. 833 
 
 References are to pages. 
 
 OWNERSHIP (continued) — 
 granting of license, 9. 
 judgments in actions of trespass, 9. 
 proof of, under general denial, 46. 
 
 of real, in third person, cannot be shown under general denial, 49. 
 may be proved under a general allegation, 50. 
 an averment that plaintiff sold and delivered imports, 56. 
 excuse of breach not admissible under allegation of performance, 57. 
 reputed, 414. 
 declarations of, 450. 
 declarations as to, 518. 
 
 P. 
 
 PAPERS — 
 
 notice to produce, 250. 
 
 not testimony, 161. 
 
 contents of voluminous, may be proved by parol, 340. 
 may be proved on voir dire, 240. 
 
 in the hands of opposite party who refuses to produce, 341. 
 
 appointment to public office may be proved by parol, 240. 
 
 beyond the jurisdiction of the court, may be proved by parol, 341. 
 
 cannot be varied by parol, 263. 
 
 that have accomplished their purpose, may be proved by parol, 244. 
 
 court must determine sufficiency of search for lost, 246. 
 
 court must determine sufficiency of notice to produce, 347. 
 
 subpcena duces tecum must be served on sti'anger, 248. 
 
 notice must specify, wanted, 249. 
 
 must be in the hands of opposite party, 350. 
 
 party refusing to produce cannot use, 35(1. 
 
 party must always show execution of original, 250. 
 
 what are original, 334. 
 
 in the hands of a stranger, may be shown by parol, 351. 
 
 refusal of agent to produce, 251. 
 
 sufficiency of secondary evidence of, 353. 
 
 fraudulent destruction of, effect of, 353. 
 
 cannot be altered by parol, 263. 
 
 fraud in obtaining, may be shown by parol. 263. 
 
 incomplete, may be aided by parol, 263. 
 
 annexing, incident to, by parol, 363. 
 
 parol, to reform, 265. 
 
 rule in Pennsylvania, 265. 
 
 meaning of words in, interpreted by usage, 393. 
 
 unilateral, what are, 395. 
 
 relations of parties to, how shown, 333. 
 PARAMOUR — 
 
 competent to testify as to legitimacy t)f children, 144. 
 PARDON — 
 
 effect of, on competency of witness, 133. 
 53 
 
834 INDEX. 
 
 References are to pages, 
 PARISH — 
 
 books of, as evidence, 433. 
 
 PAROL CONTRACT — 
 
 superseding writing, 334. 
 
 competency of, 334. 
 
 when part only is reduced to writing, 834. 
 
 PAROL EVIDENCE — 
 excluded, when, 118. 
 
 evidence of language only excluded between third persons, S24. 
 other writings, 395, 311. 
 intention, 373. 
 to show contract void, 363. 
 
 contract conditional, 263. 
 
 want of consideration, 363, 300, 301. 
 
 want of delivery, 263. 
 
 illegality, 363. 
 
 fraud, 263. 
 
 Incompetency of party, 363. 
 
 qualities and subject, 203. 
 
 usage, when, 368. 
 to annex incidents, 263. 
 to show sense of words, 267. 
 to explain latent ambiguities, 268. 
 to contradict a receipt, 303. 
 to reform a writing, 265. 
 rule in Pennsj'lvania, 265. 
 
 admissible to show what was litigated in judgment, 115. 
 not admissible to contradict recitals in a record, 118. 
 may show by, what is litigated, 118. 
 cannot be shown by, that no witnesses were sworn, 118. 
 records maj' be amended by, 118. 
 parties to judgment may be identified by, 119. 
 to show contents of lost writing, 839, 340. 
 collateral writing, 339, 244. 
 writing on voir dire, 240. 
 voluminous papers, 240. 
 appointment to public oflSce may be proved by, 240. 
 papers in the hands of the opposite party who refuses to produce, 241. 
 
 beyond the jurisdiction of the court, may be proved by, 341. 
 inscriptions on monuments may be proved by, 241. 
 aggregate of voluminous accounts may be shown by, 242, 343. 
 contents of shop-books may be proved by, 243. 
 
 of telegrams, may be proved by, 845. 
 
 of writing collateral to issue, 844. 
 
 of writing not between the parties to action, 344. 
 
 of instrument that has accomplished its purpose, 344 
 proof of posting notice proved by, 845. 
 
INDEX. 835 
 
 References are to pages. 
 
 PAROL EVIDENCE (continued) — 
 
 contenta of notice may be shown by, 245. 
 
 couteuts of placards upon walls, 245. . 
 
 documents in the hands of a stranger, 251. 
 
 refusal of agent to produce writing, 251. 
 
 letters written to party out of state, 254 
 dying declarations proved by, 854. 
 may contradict writing by, when, 335. 
 contents of deposition may be shown by whom, 255. 
 contents of deposition cannot be shown by whom, 255. 
 description of cumbrous articles, 257. 
 not competent to vary or contradict writing, when, 262. 
 not competent to add to writing, when, 263. 
 fraud in obtaining writing may be shown by, 263. 
 mistake of fact may be shown by, 263. 
 collateral agreement to writing may be shown by, 263, 
 annexing instrument to contract by, 263. 
 not excluded by memoranda, 263. 
 will not be admitted to vary written, 265. 
 not admissible to explain written contract, 266. 
 inadmissible to vary implied contract of payment, 267. 
 in equity, allowed to vary writing, when, 267. 
 
 to identify the person or thing mentioned, 368. 
 illegible characters explained by, 268. 
 abbreviations explained by, 268. 
 ambiguities explained by, 268. 
 to explain relation of words, 268. 
 to show for whom receipt was received, 271. 
 unilateral contracts may be shown by, 295. 
 to show that a writing purporting to be a contract was not intended as 
 
 such, 397. 
 to explain a receipt, 303. 
 to vary a receipt, 302. 
 
 to complete a writing of which agreement is only a part, 303. 
 subsequent changes of contract may be shown by, 820. 
 to cut down or take away obligations, 384. 
 
 PAROL EVIDENCE TO COMPLETE AN ENTIRE AGREEMENT OF 
 WHICH A WRITING IS ONLY A PART — 
 writing must appear to be incomplete, 303. 
 verbal evidence must be consistent, 303, 
 
 PARTICEPS CRIMINIS — 
 competent witness, 140, 514. 
 
 PARTIES — 
 
 incompetent, when, 160, 163. 
 
 inconsistent statement of, to action, 35. 
 
 plaintiff may show good character in action for libel, slander, etc, 35. 
 
836 INDEX. 
 
 References are to pages. 
 
 PARTIES (continued) — 
 
 defendant cannot show that plaintiff is not the real party in interest, 
 
 under general denial, 47. 
 testimony of, on former trial, competent against decedent's estate, 161. 
 to commercial paper, 309, 315. 
 names of, to commercial paper, how shown, 814» 
 
 PARTNERS — 
 
 admissions by one, 302, 407. 
 
 who are, 408. 
 
 new promise by one, 203. 
 
 incoming, liability of, 408. 
 
 surviving, incompetent to testify against decedent's estate, 156. 
 
 acts of, after dissolution, 410. 
 
 admissions by one, bind others, 213, 407. 
 
 acknowledgment of debt barred by the statute does not bind, 313. 
 
 PARTNERSHIP — 
 
 relation of parties, how shown, 333, 407. 
 
 how proved, 406, 407. 
 
 common report, 407. 
 
 doing business, 407. 
 
 evidence of, as against partner, 406. 
 
 when must be alleged, 58. 
 
 when need not be alleged, 58. 
 
 pleading in accounting, 59. 
 
 presumption as to, 635. 
 
 when witness incompetent to state that entry was made, 156. 
 
 admissions of one bind others, 313. 
 
 acknowledgment of debt barred by the statute does not bind, 313. 
 
 written contracts running to, 407. 
 
 incoming partner, liability of, 408. 
 
 dissolution of, 410. 
 
 PART OF TRANSACTION — 
 
 where part is called out by one party, other party entitled to whole, 174. 
 
 PART ONLY OF CONTRACT PUT IN WRITING — 
 may be shown, when, 334. 
 
 PART PAYMENT — 
 
 statute of limitations, how affected by, 346, 347. 
 indorsement as proof of, 346, 347. 
 
 PARTY — 
 
 interested, who is, 167. 
 
 interested, may state that conversation never took place, 167. 
 
 statement of, when leaving domicile, 486. 
 
 statement of, when leaving home, 486. 
 
 declaration of, after injury, not res gestce, 488. 
 
 declaration of, after he has been shot, 489. 
 
INDEX. , 83T 
 
 References are to pages. 
 
 PATENT AMBIGUITIES — 
 what are, 381, 389, 394. 
 not explainable, 382, 889, 394 
 how shown, 389, 394. 
 
 PATIENTS — 
 
 information acquh'ed while attending a patient, necessary, 94. 
 
 certificate of physician in life insurance cases, 94. 
 
 physician sent by prosecuting authority to make report, 94. 
 
 consulting physician, 95. 
 
 knowledge obtained by personal acquaintance with patient, 95, 
 
 opinion of physician on mental condition of patient, 95. 
 
 as between devisees and heirs at law, 95. 
 
 burden of showing that information was necessary, 95. 
 
 party must show that relation between physician and patient actually 
 
 existed, 95. 
 information derived from the senses of hearing and sight, 96. 
 affidavit of physician, 96. 
 
 physician not compelled to deliver his books for examination, 97. 
 books of physician are privileged, 97. 
 physician may say that his patient was cured, 97. 
 assignee of patient entitled to take advantage of prohibition, 98. 
 objection must be interposed by whom, 98. 
 any party may waive privilege, 98. 
 patient, testifying for himself waives privilege, 98. 
 physician cannot testify after death of party, 99. 
 who may waive privilege after death of party, 99. 
 physicians as to personal injuries to patient, 99. 
 parents may waive privilege for infant child, 101. 
 attorney may waive privilege for his client, 101. 
 
 PAYMENT — 
 
 must be pleaded, 869. 
 
 parol proof not sufficient, 370, 873. 
 
 indorsement as proof of, 330. 
 
 delivery of articles, 870, 373. 
 
 presumption from lapse of time, 370, 639. 
 
 when defendant cannot show, under general denial, 46, 50. 
 
 witness may state that he paid his own money upon decedent's debt, 157. 
 
 witness cannot testify to, to decedent, 15rf. 
 
 admission by partial, 214. 
 
 indorsement of, as evidence, 220. 
 
 parol evidence inadmissible to vary implied contract, 369. 
 
 time of, may be cnanged by parol, 320. 
 
 application of, 370. 
 
 receiving obligation of third person, 871. 
 
 tender, effect of, 372. 
 
 receipt, presumption as to, 373. 
 
 delivery of obligation to third party, 373. 
 
83S mDEX. 
 
 Beferences are to pages. 
 PAYMENT (continued) — 
 
 delivery of property other than money, 373. 
 
 debt presumed to continue, 373. 
 
 by check, good when, 370, 
 
 crediting on open account, efiect of, 370. 
 
 giving promissory note by creditor to debtor, presumption of, 870. 
 
 part, accepted in full, may be proved as a bar, 370. 
 
 part, to take case out of statute of limitations, 373. 
 
 possession of negotiable instrument by maker, presumption of, 371. 
 
 of collateral security, presumption of, 370, 
 
 to sheriff, good when, 370. 
 
 PAYMENT INTO COURT — 
 
 pleading of, conclusive of debt, 303, 306. 
 
 PEDIGREE — 
 
 memoranda in almanac, 437. 
 proof of, 485. 
 
 by family recognition, 435. 
 
 by history, 435. 
 
 by recitals ia documents, 435. 
 
 by family bible, 433, 
 
 by admissions, 428. 
 judgment on verdict binds strangers, 113. 
 declarations as to, 425. 
 who competent to testify to, 435, 426, 
 birth, how proved, 436. 
 death, how proved, 436. 
 marriage, how proved, 436. 
 relative age, how proved, 436. 
 issue or want of issue, how proved, 436. 
 name and place of residence, how proved, 436. 
 declaration ot deceased person as to genealogy of family, 437. 
 by wnose declaration proved, 437. 
 declarant must be a relative of the person whose history is to be proved, 
 
 437. 
 declaration as to date of birth, 439. 
 buraen of proof of relationship in cases of, 430. 
 declaration of living father, 431. 
 
 declaration admissible to prove illegitimacy of declarant, 480. 
 family record, 433. 
 
 must be directly relevant to make declaration admissible, 433. 
 entries in hymn book, 435. 
 marriage certificate, 435. 
 rings stating date of person's death, 436, 
 inscriptions on tombstones, 436. 
 town records, 486. 
 coat-armor and mural inscriptions, 438. 
 
INDEX. 839 
 
 Beferences are to pages. 
 PENALTIES — 
 
 civil, burden of pi-oof, 345. 
 
 pleadings of, 845. 
 
 knowledge, 345. 
 
 statute, 345. 
 PERAMBULATIONS — 
 
 when evidence, 424. 
 
 declarations during, 434 
 PERFORMANCE — 
 
 must be specially pleaded, 50, 
 
 PERJURY — 
 
 proof of oath, 384. 
 
 more than one witness necessary, 384. 
 
 proof of testimony given, 385. 
 
 corroboration, 385. 
 
 materiality of proof given, 383, 385. 
 
 rendering witness incompetent, 140. 
 
 PERSON — 
 
 entries by, when evidence, 418, 440. 
 PERSON REFERRED TO BY PARTY — 
 
 declarations of, as admissions, 313. 
 
 PERSONALTY — 
 
 presumptions of ownership of, 646. 
 PERSONAL COMMUNICATION — 
 
 no party can testify to, with a deceased person against his estate, 147, 
 as against the committee of a lunatic, 147. 
 
 an assignee of deceased party, 147. 
 a grantee of decedent, 147. 
 trustee of lunatic, 147. 
 committee of idiot, 147. 
 party to an action, 148. 
 mother may testify in favor of child, 148. 
 husband may testify in favor of his wife, when, 149. 
 wife may testify in favor of husband, when, 149. 
 widow, when competent to testify in action against heirs, 149, 
 •does not apply to motions or introductory proceedings, 149. 
 does not apply to proceedings against an attorney, 149. 
 does not apply to proof of loss against insurance company, 149. 
 wife of husband, party to action for real estate, incompetent, 150. 
 widow incompetent to set aside a deed, 150. 
 
 who has joined her husband in a deed, competent to show want of 
 consideration, 150. 
 parent competent in favor of children, 151. 
 administrator incompetent to testify in own favor, 151, 
 inventory of decedent's estate incompetent, 151. 
 witness cannot testify that a, took place, 151. 
 that he never heard, of sale, when, 151. 
 
840 INDEX, 
 
 Beferences are to pages. 
 
 PERSONAL COMMUNICATION (continued) — 
 
 officer of corporation competent to testify against a party, 153. 
 legatee incompetent to testify against estate of deceased party, 153. 
 next of kin incompetent, 153. 
 heir competent witness, when, 153. 
 
 agent, 153. 
 purchaser of property of decedent at official sale competent, 154. 
 when witness cannot testify that he saw a paper signed by decedent, 154. 
 
 decedent sign a paper, 154 
 surety incompetent to testify in favor of principal's estate, 155. 
 putting instrument signed by decedent in evidence, effect of, 155, 
 maker of note competent to tevStify in favor of indorser, 155. 
 indorsers competent in an action between themselves, 155. 
 beneficiaries under a will incompetent to testify, when, 156. 
 surviving partner incompetent to testify, when, 156. 
 transferee of negotiable paper not an assignee, 156. 
 when witness incompetent to state that entry was made, 156. 
 
 cannot testify that decedent was silent, 157. 
 mother may testify as to birth of child as against estate, 157. 
 witness may state that he paid his own money upon decedent's debt, 157. 
 
 to deposit of money to decedent's credit, 157. 
 party cannot testify that he received a deed from decedent through the 
 
 postoffice, 177. 
 ■witness cannot state that he left notices at decedent's house, 157. 
 may deny any statements of other witnesses, 158. 
 may swear that he had possession of property, 158. 
 when witness may state whole transaction on cross-examination, 158. 
 
 on re-examination, 158. 
 witness may state that instrument has been offered, 158. 
 
 may state that he had a conversation with deceased, 158. 
 
 may state that certain letters found in decedent's possession were 
 
 in testator's handwriting, 158. 
 cannot testify to physical condition of decedent, 159. 
 executor cannot testify to payment of money to decedent, 159. 
 party may verify his account against estate of decedent, 159. 
 witness cannot testify that he saw decedent sign affidavit of verification, 
 
 159. 
 death of one party before completion of examination of other, 159. 
 witness may testify to value of property of, purchased of decedent, 159. 
 witness may testify to value of services performed for deceased, 159. 
 a party's books competent as against decedent's estate, 160. 
 a party may state what did not take place, 161. 
 in presence of decedent, made to him, 161. 
 meaning of word "testimony," 161. 
 
 books, papers, instruments of decedent, not testimony, 162. 
 testimony of a deceased party competent as against decedent's estate, 
 
 161. 
 widow not competent to testify to marriage, when, 161. 
 
INDEX. 841 
 
 Beferences are to pages, 
 
 PERSONAL COMMUNICATION (continued) — 
 
 assignee deriving title, meaning of as to competency of witness, 163. 
 
 party may testify to signature of decedent, 163. 
 
 party may testify to extraneous facts, 163. 
 
 party cannot testify in indirect method, 163. 
 
 party cannot testify to an address on a package, 163. 
 
 party cannot testify to contents of a box, 163. 
 
 legatee cannot testify in support of a will, 164. 
 
 may, in aid of a contestant of will, 164 
 beneficiary cannot testify in support of a will, 164. 
 notice to strike out incompetent evidence, 164. 
 
 interested party may testify to same transaction as testified to by ad- 
 ministrator, 165. 
 what is same, 165. 
 party cannot show transaction called out by him on cross-examination, 
 
 166. 
 party may testify that he had no conversation with deceased, 167. 
 
 that alleged personal communication with decedent 
 
 never took place, 167. 
 to facts showing impossibility of, 175. 
 what is not a personal transaction, 175. 
 
 a witness may state that he obtained paper from room where deceased; 
 was, 176. 
 that he believed and relied upon statement, 177. 
 
 PERSONAL TRANSACTION — 
 
 no party can testify to, as against estate of deceased person, 147. 
 
 as against the committee of a lunatic, 347. 
 
 as assignee of a deceased party, 147. 
 
 a grantee of a deceased party, 147. 
 
 trustee of an idiot, 147. 
 party to an action, 148. 
 what interest disqualifies, 148. 
 mother may testify in favor of child, 148. 
 husband may testify in favor of his wife, when, 149. 
 wife may testify in favor of husband, when, 149. 
 widow competent witness in action against heirs, 149. 
 does not apply to motions or introductory proceedings, 149. 
 does not apply to proceedings against an attorney, 149. 
 does not apply to proof of loss against insurance company, 150. 
 wife of husband, party to action for real estate, incompetent, 150. 
 widow incompetent in action to set aside a deed, 150. 
 widow who has joined her husband in a deed, competent to show want 
 
 of consideration, 150.- 
 parent competent to testify in favor of children, 151. 
 incompetent to testify in his own interest, 151. 
 inventory of decedent's estate incompetent, 151. 
 witness cannot testify that a conversation took place, 151. 
 when witness cannot testify that he never heard of sale, 15U 
 
842 INDEX. 
 
 References are to pages. 
 
 PERSONAL TRANSACTION (continued) — 
 
 officers of corporations competent to testify against, 153. 
 legatee incompetent to testify against estate of deceased person, 153. 
 next of kin incompetent to testify against estate of deceased person, 152l 
 heir competent witness, when, 153. 
 
 purchaser of property of decedent at official sale competent, 154. 
 wlien witness cannot testify that he saw a paper signed by decedent, 154. 
 when witness cannot testify tliat he saw decedent sign a paper, 154. 
 surety cannot testify in favor of principal's estate, 1^5. 
 putting instrument signed by decedent in evidence, effect of, 155. 
 maker of note competent to testify in favor of indorser, 155. 
 indorsers competent in an action between themselves as against dece- 
 dent's estate, 155. 
 beneficiaries under a will incompetent to testify, when, 156. 
 surviving partner incompetent to testify, when, 156. 
 4;ransferee of negotiable paper not an assignee, 156. 
 when witness incompetent to state that entry was made, 156. 
 
 that decedent was silent, 157. 
 mother may testify to birth of child as against decedent's estate, 157. 
 ■witness may testify as to deposit of money to decedent's credit, 157. 
 
 may state that he paid his own money upon decedent's debt, 157. 
 
 cannot state that he left notice at decedent's house, 157. 
 
 may deny any statements of other witnesses, 158. 
 
 may swear that he had possession of property, 158. 
 
 can state whole transaction on cross-examination, when, 158. 
 
 can state whole, on re-examination, when, 158. 
 
 cannot testify that he had a conversation with decedent, 158. 
 
 may testify that certain letters found in decedent's possession were 
 in testator's handwriting, 158. 
 
 cannot testify to physical condition of decedent, 159. 
 executor cannot testify to payment of money to deceased, 159. 
 party may verify his account against estate of deceased, 159. 
 witness cannot testify that he saw deceased sign affidavit of verification, 
 
 159. 
 death of party before examination does not aflEect testimony already 
 
 taken, 159. 
 witness may testify to value of property purchased of deceased, 159. 
 witness may testify to value of services performed for deceased, 159. 
 .party's books competent as against a decedent's estate, 160. 
 party may testify that he had no conversation with decedent, 167. 
 .party may state that an alleged transaction with decedent never took 
 
 place, 167. 
 witness may state that indorsement was on a paper at the time it was 
 
 delivered to him, 167. 
 witness connot testify that he carried an ink-stand, 168. 
 interest that disqualifies a witness, 168. 
 surety on decedent's note competent, 169. 
 -surety on indemnity bond of sheriff, incompetent when, 169. 
 
INDEX. 843 
 
 References are to pages. 
 
 PERSONAL TRANSACTION (continued) — 
 
 party may testify to facts showing impossibility of, 175. 
 
 what is not a personal transaction, 175. 
 
 witness may state that he obtained a paper from a room where deceased 
 
 was, 176. 
 witness cannot State that a note was never paid, 176. 
 verify his own books of account, 176. 
 witness may testify that he bad possession of paper prior to and at the 
 time of the death of decedent, 176. 
 that he believed and relied on statement of dece- 
 dent, 177. 
 party cannot testify that he received a deed from decedent through the 
 
 postofflce, 177. 
 party may state that a conversation did not take place, 161. 
 conversations in presence of decedent are made to him, 161. 
 meaning of word "testimony," 161. 
 
 books, papers and instruments of decedent not testimony, 161. 
 testimony of a deceased party competent as against decedent's estate, 161. 
 widow cannot testify to marriage, when, 161. 
 creditors, action by, who are competent witnesses, 161. 
 who cannot give testimony as parents as to legitimacy, 163. 
 "deriving title," meaning of, as to competency of witnesses, 162, 
 party may testify as to signature of decedent, 163, 
 
 to extraneous facts. 163. 
 party cannot testify in indirect method, 163. 
 party cannot testify to an address on a package, 163. 
 party cannot testify to the contents of a box, 163. 
 legatee cannot testify in support of a will, 163. 
 legatee may testify in aid of a contestant, 164. 
 beneficiary cannot testify in support of a will, 164. 
 burden of showing witness unqualified, 164. 
 waiver of incompetency of witness, 165. 
 when executor or administrator has testified, 165. 
 what is same, 165. 
 party cannot show transaction called out by him on cross-examination, 
 
 166. 
 
 PHOTOGRAPHS— 
 
 experts cannot compare handwriting from, 580. 
 
 must be shown to be correct, 359. 
 
 copy of papers, 335. 
 
 of putative father, 356. 
 
 of child, to show physical development, 257, 
 
 of person killed, to show identity, 257. 
 
 for the purpose of refreshing memory, 358. 
 
 X-raya, when admissible, 369. 
 PHYSICAL CONDITION — 
 
 non-experts may testify to appearance and amount of injury, 566. 
 
 party may testify as to permanent character of injury, 566. 
 
8-i4 INDEX. 
 
 References are to pages, 
 
 PHYSICAL CONDITION (continued) — 
 
 non-experts may testify to the effect of injury, 566. 
 
 as to the length, depth and direction of wounds, 566. 
 experts may state probable duration of injuries, 567, 
 
 future effect of injuries, 567. 
 
 that injui'ies are permanent, 567. 
 
 that injuries are necessarily painful, 567. 
 
 the direction from which a blow was delivered, 567. 
 
 whether an autopsy was properly made, 568. 
 
 that abcess was caused by a bruise, 568. 
 
 that a miscarriage was caused by an injury, 568. 
 
 that the muzzle of a gun must have been higher than the man who 
 was shot, 568. 
 
 whether the person could have made the wound upon himself, 568. 
 
 whether a cause could produce the, claimed, 568. 
 
 as to the proxi mate cause of paralysis, 569. 
 
 probable duration of the life of a man, 569. 
 
 whether a person's illness was produced by violence or disease, 569. 
 non-experts may testify to the eyesight of a party, 571. 
 
 to the hearing of a party, 571. 
 
 PHYSICAL EXAMINATION — 
 
 in action for personal injuries, 258. 
 by X-rays, 361. 
 
 PHYSICIANS — 
 
 may exhibit patient's limbs, 358. 
 
 incompetent to testify, when, 94. 
 
 waiver of incompetency, 97. 
 
 information acquired while attending a patient, necessary, 94. 
 
 certificate of, in life insurance cases, 94. 
 
 sent by prosecuting authority to make report, 94 
 
 consulting, 95. 
 
 knowledge obtained from personal acquaintance of patient, 93. 
 
 opinion of, as to mental condition of patient, 95. 
 
 as between devisees and heirs at law, 95. 
 
 burden of showing that information was necessary, 95. 
 
 information derived from the senses of hearing and sight, 96. 
 
 affidavit of physician, 96. 
 
 not compelled to deliver his books for examination, 97. 
 
 books of, are privileged, 97. 
 
 may state that his patient was cured, 97. 
 
 assignee of patient entitled to take advantage of prohibition, 98. 
 
 objection must be interposed by whom, 98. 
 
 any party may waive privilege, 98. 
 
 testifying for himself, waives privilege, 98. 
 
 cannot testify after death of party, 99. 
 
 who may waive privilege of the death of party, 99. 
 
 as to personal injuries received by patient, 99. 
 
INDKX. 845, 
 
 References are to pages, 
 PLAT OR MAP — 
 
 evidence, when, 424. 
 PLEADINGS — 
 
 evidence must not be pleaded, 7. 
 
 degree of generality permissible, 8. 
 
 supplemental, necessary vchen, 12. 
 
 in action for libel or slander, character must be pleaded, 36. 
 
 issue necessary, 40. 
 
 actions writhout, 40. 
 
 evidence must be within the issue, 40. 
 
 title, how pleaded, 67. 
 
 title in a stranger, 42. 
 
 title in actions in the detinet, 43. 
 
 title in actions in the cepit, 42. 
 
 pi'omise to pay note after dishonor, 43. 
 
 of statute, evidence under, 43. 
 
 exceptions, how pleaded and proved, 43. 
 
 general issue, 44. 
 
 burden of proof on plaintiff, 44. 
 
 defendant may show anything negativing the complaint, 44. 
 defense of bona fide purchaser incompetent under, 44, 
 what must be specially pleaded — 
 
 res adjudicaia, 47. 
 
 limitation, statute of, 47. 
 
 discharge of bankruptcy, 47. 
 
 release, 47. 
 
 tender, 48. 
 
 matter of inducement, 48. 
 
 special damages, 48, 58. 
 
 trespass, 49. 
 
 justification, always, 49. 
 
 negligence, 49. 
 
 composition with creditors, 49. 
 
 accord and satisfaction, 50, 
 
 payment, 50. 
 
 unsoundness of mind, 50. 
 
 infancy, 50. 
 
 lunacy, 50. 
 
 illegality, 50. 
 
 usury, 59. 
 
 foreign usury laws, 50. 
 
 performance, 50. 
 
 waiver, 50. 
 warranty of title, when must be pleaded, 50. 
 warranty, if relied upon, must be pleaded, 57. 
 ownership, must be pleaded, 50. 
 demand, must be pleaded, 50. 
 fraud, must be pleaded, 50. 
 knowledge, must be pleaded, 50. 
 
846 INDEX. 
 
 Beferences are to pages. 
 PLEADINGS (continued) — 
 scienter, must be pleaded, 50. 
 intent to deceive, must be pleaded, 51. 
 reliance upon the facts, must be pleaded, 51. 
 value need not generally be pleaded, 51. 
 contract with carrier, must be pleaded, 53. 
 defenses to action on judgments, 53. 
 breach of contract, how pleaded, 53. 
 
 proviso or defeasance contained in a condition, must be pleaded, 53. 
 mistake, must be pleaded, 53. 
 alteration of promissory note, must be pleaded, 53. 
 destruction of promissory note need not be pleaded, 53. 
 demand and notice of dishonor, must be pleaded, 53. 
 excuse for failure to demand, must be pleaded, 53. 
 general, for work, labor and services, sufficient when, 55. 
 quantum meruit, how pleaded, 54. 
 
 excuse for partial non-performance, must be pleaded, 55, 66. 
 contract for good sold and delivered, how pleaded, 55. 
 implied promise, how pleaded, 56. 
 
 delivery, pleaded, 56. 
 ability of plaintiff to deliver, must be pleaded, 57. 
 readiness and willingness to receive goods, 57. 
 money had and received, how pleaded, 58. 
 appointment of receiver, must be pleaded, 58. 
 partnership, when pleaded, 58. 
 omission to join a copartner, must be pleaded, 58. 
 official capacity, how pleaded, 59. 
 justification of officer, how pleaded, 59. 
 coverture, when pleaded, 59. 
 relation of heirs, how pleaded, 60. 
 statement, must be specially pleaded, 60. 
 admission in, effect of, 61, 68, 63, 64. 
 instrument set up as a counter-claim, 64. 
 defenses after suit brought, how pleaded, 65. 
 conspiracy, must be pleaded, 65. 
 assignment, 66. 
 
 incapacity, specially pleaded, 67. 
 jurisdiction, how pleaded, 67. 
 consideration, how pleaded, 68. 
 condition precedent, how pleaded, 68. 
 pain and mental anguish, need not be pleaded, 69. 
 agency, how pleaded, 69. 
 that the thing was duly done is sufficient, 69, 
 estoppel, must be pleaded when, 69. 
 fiction of law, how pleaded, 70. 
 adequate remedy at law, must be pleaded, 70. 
 contingent allegation, how pleaded, 70. 
 authority, how pleaded, 70. 
 averment of a conclusion different from facts alleged, 70. 
 
INDEX. 847 
 
 References are to pages. 
 
 POLITICAL DIVISIONS — 
 
 courts take judicial notice of, 193. 
 POSSESSION — 
 
 evidence of ownership, 646. 
 
 of stolen goods, 670. 
 
 under an ancient deed, 446. 
 
 adverse possession, 446. 
 
 declarations accompanying, 446. 
 
 of unanswered letters, 207. 
 
 witness may state he had, of property of decedent, 158. 
 
 property in, of husband and wife, presumption as to, 400. 
 
 of wife, 400. 
 modern exercise of right, 449. 
 witness may testify that he never delivered, 563. 
 pi-esumption of ownership from, 646. 
 POSTING — 
 
 evidence of, 239. 
 
 entries as proof of, 230. 
 
 proof of evidence of delivery, 330. 
 
 service of notice of protest, 230. 
 
 date of, 230. 
 
 by parol, 345. 
 presumption as to, notice of protest, 618. 
 
 POSTMARK — 
 
 proof of, on envelope, 230. 
 
 as evidence of delivery of letter, 230. 
 
 POSTOFFICE — 
 
 delivery of letter to, 230. 
 service of notice through, 330. 
 PRELIMINARY — 
 
 proof to admit account books, 160, 243. 
 
 of relationship of declarant. 430. 
 party's books competent as against decedent's estate, 160. 
 negotiations as to a written agreement may be shown by parol, 396. 
 examination as to competency of witness, 131. 
 
 as to confession, should be inade without a jury, 218. 
 
 as to dying declarations, 451. 
 
 as to whether a statement is res gestae, 485. 
 confession of a prisoner, 217. 
 
 PRESCRIPTION — 
 
 land under water, 653. 
 
 what is, 648, 649. 
 
 claim of ownership necessary to, 655. 
 
 how proved, 648, 649. 
 
 cannot be proved under general denial, 417. 
 
 walls and banks, 654. 
 
 title by, 648. 
 
'848 IKDEX. 
 
 Beferences are to pages, 
 
 PRESCRIPTION (continued) — 
 as against the state, 649. 
 presumption as to adverse possession, 649. 
 dedication of highway, 650, 654. 
 as to license, 651. 
 
 extinguishment by cessation of enjoyment, 653. 
 
 PRESUMPTIONS — 
 
 proof of signature of subscribing witness, 38. 
 
 failure to deny an allegation of fact admits, of fact, 62. 
 
 of legitimacy, 343. 
 
 shifting of, 343. 
 
 when contractual relation exists between parties, 347. 
 
 of negligence of telegraph company, 354. 
 
 from other fraudulent acts, 356. 
 
 that liquor is intoxicating, 361. 
 
 neglect of husband to support wife is unlawful, 361, 
 
 as to illegality of contract, 363. 
 
 debt once shown to exist presumed to continue, 373. 
 
 of assignment in equity, when, 373. 
 
 of consideration from written assignment, 373. 
 
 of acceptance of charter of corporation, 377. 
 
 of legality of corporation, 376. 
 
 of legislative sanction, 376. 
 
 ■of admission of party dealing with corporation, 376. 
 
 that charter of corporation was legally passed, 377. 
 
 as to certificate of corporation, 377. 
 as to books of corporation, 381. 
 •of advancements to child, 388. 
 as to interlineations in will, 390. 
 domicile once shown is presumed to continue, 395. 
 as to gift of property from husband and wife, 401. 
 gift from wife to husband, 401. 
 separate estate of vrife, 401. 
 separate business of wife, 401. 
 torts of wife In presence of husband, 403. 
 what are, 590. 
 of fact, what are, 591, 
 hominis, 591. 
 mixed, 591. 
 in general, 593. 
 
 circumstances, difference between, 594. 
 of law, 595. 
 
 no arbitrary rule of, fixed, 596. 
 inflexible proof, when, 596. 
 every one presumed to know the law, 698. 
 estoppels as, 598. 
 that officers do their duty, 599. 
 concerning person's status, 600. 
 
INDEX. 849 
 
 Eeferences are to pages. 
 
 PRESUMPTIONS (continued) — 
 
 that parties know contents of writings, 601. 
 
 that one performing services for his parents does it gratuitously, 600. 
 
 of possession of property by wife, supposed to be for husband, 601. 
 
 of jurisdiction of court, 603. 
 
 of regularity of proceedings, 603. 
 
 of courts of limited jurisdiction, 604 
 
 as to carriers, 605. 
 
 bailees, 605. 
 
 negligence, 605, 608. 
 
 innkeepers, 607, 
 
 ships, 608. 
 
 carriers of passengers, 609. 
 
 contributoiy negligence, 610. 
 
 property, 611. 
 
 railroad trains, 613. 
 
 official capacity, 613. 
 
 authority, 613, 645. 
 that the usual course of business was followed, 614 
 that services were to be paid for, 615. 
 as to negotiable instruments, 616, 630. 
 as to consideration of negotiable paper, 618. 
 of protest of bills and notes, 618. 
 as to mailing notice, 618. 
 as to documents regular on their face, 619. 
 as to date, 619. 
 
 that a person acted honestly, 619. 
 as to marriage, 631. 
 as to legitimacy, 631. 
 as against spoliator, 631. 
 as to alteration of documents, 683. 
 
 suppression of documents, 633. 
 
 manufacturing of evidence, 623. 
 
 continuance of things, 633, 
 
 domicile, 625. 
 
 residence, 625. 
 
 solvency, 635. 
 
 infancy, 625. 
 
 partnership, 625. 
 
 sanity and insanity, 626. 
 
 character and habits, 636. 
 not retrospective, 627. 
 as to life, 637. 
 
 death, 638. 
 
 absentees, 638. 
 
 life after seven years, 631. 
 
 life before seven years, 630. 
 
 survivorship, 633. 
 54 
 
850 INDEX. 
 
 Seferences are to pages. 
 
 PRESUMPTIONS (continued) — 
 
 as to identity, 633. 
 intent, 633. 
 revocation of wills, 634. 
 
 when the doing of an act does not raise, 635. 
 
 that a person does what he has the right and power to do, 635. 
 
 from the course of nature, 636. 
 
 as to period of gestation, 636, 637. 
 
 that a wife who commits a crime in presence of husband acted under his 
 coercion, 637. 
 
 that a boy under fourteen years of age incapable of rape, 637, 
 
 that money given to child is gift, 637. 
 
 of payment, 638. 
 
 other than by lapse of time, 639. 
 
 as to foreign laws, 641. 
 
 as to acts malum in se, 643. 
 
 that alteration in instrument was made before execution, 643. 
 
 of receipt of letters from mailing, 645. 
 
 that attorney was duly employed, 645. 
 
 that goods purchased by wife were for husband, 645. 
 
 that one having possession of a deed is the legal holder, 645. 
 
 that a deed was delivered before it was put on record, 646. 
 
 of ownership from possession, 646. 
 
 as to prescription, 648. 
 
 as to dedication of highway, 650, 654. 
 
 as to license, 651. 
 
 of extinguishment of title by cessation of enjoyment, 652. 
 
 as to innocence, 635. 
 
 of good character of accused, 656. 
 
 of guilt, 664. 
 
 that writing contains the whole of the agreement, 264. 
 
 as to date of commercial paper, 316. 
 
 as to merger of contemporaneous, oral in written contract, 264. 
 
 as to time of performance of contract, 270. 
 
 of payment, 369. 
 
 of giving obligation to third party, 371. 
 
 from tender, 373. 
 
 from great lapse of time, 370. 
 
 from possession of negotiable instrument by maker, 370. 
 
 of collateral security, 371. 
 
 giving receipt, 371. 
 
 delivery of property other than money, 371. 
 
 where insti-ument appears to be complete, 265. 
 PRIMARY EVIDENCE — 
 
 what is, 223, 224. 
 
 excludes what, 223. 
 , instruments which the law requires to be in writing, 224. 
 
 contracts which parties have xeduced to writing, 234. 
 
INDEX. 851 
 
 References are to pages, 
 
 PRIMARY EVIDENCE (contiaued) — 
 
 all writings the existence or contents of which are disputed, 324. 
 
 writings accompanied by verbal statements, 234. 
 
 collateral writings, 334. 
 
 dupIicat-^8, 324. 
 
 lithographs, 325. 
 
 photographic copy, 33.'). 
 
 printed copies, 325. 
 
 documents duly acknowledged, 336. 
 
 documents executed by public officer, 226. 
 
 registered documents are primary evidence, 226. 
 
 ancient documents, 333. 
 
 warrants, 333. 
 
 admissions of party as, 233. 
 
 examined copies, 234. 
 
 general records of nation, 235. 
 
 exemplifications, 285. 
 
 certified copies, 235. 
 
 legislative acts of states and territories, 286. 
 
 records and judicial proceedings of state courts, 237. 
 
 public records of state, not judicial, 337. 
 
 foreign acts of state, judgment, etc., 238. 
 
 foreign and interstate laws, 288. 
 
 state papers, 339. 
 
 telegram, 354. 
 
 executed deposition, 355. 
 
 memorandum of auctioneer, 256. 
 
 demonstrative, 256. 
 
 view of premises, 256. 
 
 portable objects, 356. 
 
 blood stains, 856. 
 
 view of child, 256. 
 
 description of cumbrous articles, 257. 
 
 pieces of clothing, 257. 
 
 written presumed to merge oral, 264. 
 
 writing presumed to contain whole agreement, 265. 
 
 where instrument does not purport to be complete, 365. 
 
 where instrument appears to be complete, 365. 
 
 rule in Pennsylvania, 265. 
 
 parol not admissible to explain writing, 366. 
 
 memoranda, when, 473. 
 PRINCIPAL AND AGENT — 
 
 when bound by acts of agent, 208. 
 
 judgment against agent no bar to judgment against principal, 118. 
 
 judgment against deputy a bar to action against sheriff, when, 118. 
 
 agent cannot dispute title of principal, 130. 
 
 admission of agent, 208. 
 
 admission of agent after business is closed, 208. 
 
852 INDEX. 
 
 References are to pages. 
 
 PRINCIPAL AND AGENT (continued) — 
 declaration of agent part of res gestae, 308. 
 when interpreter is agent, 308. 
 
 when not, 308. 
 statement of manager of corporation, 309. 
 statement of station agent, 310. 
 when sealed contract of one cannot be shown, 367. 
 PRINCIPAL AND SURETY — 
 
 action against surety binds principal, when, 113. 
 judgment against principal not conclusive against surety, 113. 
 surety cannot testify in favor of principal's estate, 155. 
 admissions of surety bind principal, when, 310. 
 of principal, do not bind surety, when, 310. 
 declarations of grantor bind principal, when, 311. 
 entries of principal bind surety, when, 211. 
 joint maker may show that he was to be surety, 311. 
 PRIVATE RIGHTS — 
 
 reputation of, not competent, 416. 
 PRIVATE WRITINGS — 
 notice to produce, 346. 
 sufficiency of, 349. 
 when not necessary, 351. 
 proof of, when lost or destroyed, 253. 
 search for, necessarj', 245. 
 euflSciency of search, 246. 
 fraudulently withheld, 347, 349. 
 comparison of handwriting by other papers, 575. 
 handwriting, how proved, 575. 
 deeds over thirty years old, 575. 
 alteration by party, 644. 
 made by party fraudulently, 644. 
 alteration presumed innocent, when, 655. 
 spoliation, effect of, 633. 
 PRIVIES — 
 in law, 301. 
 who are, 114. 
 one estopped by, 126. 
 in blood, 201. 
 
 who bound by estoppel, 136. 
 in estate, 201. 
 admission by, 301, 319. 
 
 PRIVILEGED COMMUNICATIONS — 
 made to legal counsel, 84, 90. 
 who are counsel, 88, 
 extends to papers, 89, 90. 
 who are not counsel, 93. 
 to conveyancer, 91, 94. 
 
INDEX. ■ 853' 
 
 References are to pages. 
 
 PRIVILEGED COMMUNICATIONS (continued) — 
 limitation of rule, 86, 90. 
 length of protection, 86. 
 waiver of privilege, 91. 
 between physician and patient, 94. 
 extent of such privilege, 95, 97. , 
 who may waive privilege, 99. 
 proceedings of grand jury, 103. 
 secrets of state, 102. 
 between clergyman and penitent, 101. 
 between husband and wife, 103, 108. 
 
 PROBATE COURTS — 
 
 orders of, when conclusive, 110. 
 
 PROCHEIN AMI — 
 admissions of, 214. 
 
 PROCLAMATIONS — 
 by governor, 103. 
 by president, 102. 
 proof of, 102. 
 courts take judicial notice of, 186. 
 
 PRODUCTION OF DOCUMENTS — 
 notice to produce, necessary, 246. 
 
 PROFESSIONAL COMMUNICATIONS — 
 
 when privileged, 84, 90. 
 -PROMISE — 
 
 to induce confession, efifect of, 216, 319. 
 
 new, how shown, 346, 847. 
 
 of marriage, action for breach of, 21, 693. 
 
 to pay note after dishonor, 43. 
 
 subsequent, to pay after dishonor, admissible under allegation of demand 
 and notice, 53. 
 
 confession obtained by, 218. 
 PROMISSORY NOTE — 
 
 holder in due course, 313. 
 
 destruction of, need not be alleged, 53. 
 
 alteration of, must be alleged, 53. 
 
 demand and notice of dishonor must be alleged, 53. 
 
 excuse for failure to demand must be alleged, 53. 
 
 subsequent promise to pay, 53. 
 
 title in another not admissible under general denial, 53. 
 
 judgment against prior by subsequent indorser, 113. 
 
 putting, signed by decedent, in evidence, effect of, 185. 
 
 maker of, competent to testify in favor of indorser, 155. 
 
 indorsers of, competent to testify in actions between themselves, 155, 
 
 interested party may show contents of, in possession of decedent's repre- 
 sentatives, 167. 
 
854 INDEX. 
 
 Beferences are to pages. 
 
 PROMISSORY NOTE (continued) — 
 
 witness may state that indorsement was on, when delivered to him, 167. 
 indorsee of, not in privity with indorser, 201. 
 admissions by holder before due, when admissible, 203. 
 
 after due, 303. 
 declarations of holder bind his assignee, when, 212. 
 indorsement of payment as admission of, 220. 
 execution not necessary to be proved, when, 336. 
 cannot be varied by parol, 366, 309. 
 
 explained by parol, 266. 
 parol to show that they were to be paid on a contingency, 266: 
 
 that party signed as a witness, 273. 
 prior or contemporaneous parol agreement not admissible, 309. 
 understanding of parties as to, inadmissible, 309. 
 that one appearing as maker signed as surety, 310. 
 parol to vary as between original parties thereto, 310. 
 parol to vary as against a holder in due course, 310. 
 indorsers may show a contract with payee, when, 810. 
 
 that they were not to be made liable, 310. ' 
 that it was executed as a mere receipt, 310. 
 parol admissible to show use for accommodation, 310. 
 
 to show that an indorsement in blank was without recourse, 311. 
 
 as to intention of irregular indorser, 311. 
 joint maker of, may show that he was to be surety, 311. 
 ambiguity in, may be explained. 311. 
 time of indorsement may be shown, 313. 
 
 when ambiguity is dissipated, parol evidence ceases to be admissible, 313. 
 presumption as to notice of protest, 618. 
 regular indorsement of, cannot be explained by parol, 313. 
 indorser cannot show indorsement conditional, 313. 
 indorser can show consideration for indorsement, 313. 
 true relation of parties to, may be shown, when, 314 
 names of parties, how shown, 814 
 mistake in date may be shown, when, 816. 
 presumption as to date, 316. 
 authority of agent to make, 316. 
 form of, made by agent, 316. 
 evidence to exonerate agent, 317. 
 
 to bind principal, 317. 
 
 to show that writing apparently absolute is not, 318. 
 extension of time of payment may be shown by parol, 320. 
 waiver of demand and notice, 336. 
 conditions upon which note was delivei'ed, 839, 
 PROOF — 
 
 amount required, 343, 354 
 burden of, how satisfied, 343, 355. 
 of usage, competent when, 43. 
 presumption, inflexible when, 556. 
 
INDEX. 855 
 
 References are to pages* 
 
 PROPERTY — 
 
 presumed from possession, 646. 
 
 PROTEST — 
 
 proof of posting evidence of service of, 230. 
 
 date on envelope, evidence of, 830. 
 presumption as to notice of, 618. 
 
 mailing of notice of, 618. 
 
 PROVISO — 
 
 how pleaded and proved, 44 
 
 negativing of, 44 
 
 burden of proof of, 44, 342. 
 
 contained in a condition, must be alleged, 52. 
 
 PUBLIC AND GENERAL INTEREST — 
 what is, 415. 
 
 PUBLIC BOOKS — 
 
 proof of contents by copies, 838. 
 printed copies of laws, 838. 
 
 PUBLIC POLICY — 
 
 exclusion of evidence from, 73, 102. 
 
 PUBLIC RECORDS AND DOCUMENTS — 
 acts of state, 835. 
 official registers, 835, 439. 
 
 proof of public documents not judicial by copy, 234 
 who may give copies, 837. 
 public histories, 481. 
 official certificates, 834. 
 proclamations, 235. 
 foreign laws, proof of, 238. 
 state laws noticed by federal courts, 183. 
 admission of party cannot be received for, 238. 
 judgments of, how proved, 238. 
 as to pedigree, 436. 
 entries in any, 439. 
 
 PUBLIC RIGHTS — 
 
 proof of, by tradition, 416. 
 
 what are, 417. 
 
 and general, distinction between, 419. 
 
 what matters involve, 420. 
 
 PUBLIC RUMOR — 
 
 evidence when, 417, 426. 
 
 PUBLICATION OP LIBEL. See Libel. 
 
 PURCHASER — 
 
 during pendency of action, bound by judgment, 114 
 
856 INDEX. 
 
 References are to pages. 
 
 Q.. 
 
 QUALITIES — 
 
 of custom and usage, 287, 294 
 
 QUANTUM MERUIT — 
 
 for work, labor and services, 54. 
 what may be shown under, 54 
 for goods sold and delivered, 55. 
 implied proof to pay, how alleged, 56. 
 pleading money had and received, 58. 
 excuse for non-performance, 65. 
 
 QUESTIONS — 
 
 hypothetical, when allowed, 537. 
 
 form of, as to transaction with decedent, 178, 179. 
 
 must be based on what, 537, 538. - 
 
 within the discretion of the judge, 588. 
 
 must assume all facts in the case, 538. 
 leading, when and when not allowed, 700, 703. 
 
 form of, 22, 164, 537, 539. 
 
 particular trait, 23. 
 must be based on facts absolutely proved or admitted, 538, 539. 
 general objection to, not good, 541. 
 upon issue of testamentary capacity, 541. 
 witness cannot be asked, " what have you to say on the testimony yon 
 
 have heard?" 542. 
 witness may be asked, " what results will follow, with reasonably cer- 
 tainty, from the injuries which you observed?" 543. 
 
 QUESTIONS OF LAW — 
 
 admissibility of shop-books, 244 
 
 witness may testify that he never delivered possession of property, 563. 
 witness cannot state conclusion, 563. 
 attorney may state, when, 563. 
 
 ■witness may testify that he never purchased any goods from the seller, 
 563. 
 that services were never performed under the contract, 563. 
 cannot testify that certain persons were joint owners of land, 563. 
 that a person exercised acts of ownership over property, 563. 
 may testify that a person went into possession and thereafter con- 
 trolled land, 564 
 cannot testify to his ownership when ownership is in issue, 564. 
 that he performed his part of a contract, 564, 565. 
 all the duties imposed upon him by the contract, 564. 
 experts may testify to the nature and effect of a foreign unwritten law, 
 
 564 
 witness cannot testify whether he took possession of property as an in- 
 dividual or assignee, 564. 
 may testify that she became engaged to defendant, 564 
 
INDEX. 85 t 
 
 References are to pages, 
 
 QUESTIONS OF LAW (continued) — 
 
 witness cannot state that contract has been abandoned, 565. 
 was made, 565. 
 that he was discharged without fault, 565. 
 may testify that debts were contracted on the face of a promise, 565.. 
 on the part and behalf of whom he did work, 566. 
 QUESTIONS TENDING- TO DEGRADE A WITNESS — 
 witness must answer, 83. 
 
 when will render him liable to penalties and punishment, 83. 
 witness need not answer immaterial questions, 83. 
 party calling witness may give evidence to support his character, 83. 
 judge must decide as to irrelevancy of question, 83. 
 when witness may decline to answer, 88. 
 when question is relevant party cannot object, 83. 
 
 R. 
 
 RAILROADS — 
 
 courts take judicial notice of, 187. 
 
 statement of station agent, 310. 
 
 train-report sheet, 479. 
 
 entries made by train-dispatcher, 479. 
 
 rule book of, 480. 
 
 report of, 481. 
 
 subscription books for stocks, 481. 
 
 rules for conduct of employees, 481. 
 
 printed notice to passenger, 481. 
 
 resolutions of companies, 482. 
 
 authentication of records of, 483. 
 
 conductor may testify that he did not intend to expel passenger, 559.. 
 
 presumptions as to trains, 613. 
 
 RAPE — 
 
 statements of prosecutrix out of court, 83, 88. 
 
 impeachment of prosecutrix, 33, 38. 
 
 abuse of prosecutrix at another time, 19. 
 
 presumption that boy under fourteen years of age incapable of, 637.. 
 RATIFICATION — 
 
 of acts of agent, 879. 
 
 of acts of parties, 410. 
 READING OF INSTRUMENTS— 
 
 parol evidence of surrounding circumstances, 374. 
 
 under statute of frauds, 318. 
 
 REAL ESTATE — 
 
 wife incompetent for husband in actions for, 150. 
 widow incompetent in action to set aside a deed, 150. 
 widow competent as against purchaser under execution, 167» 
 advancement to child, 388. 
 title by prescription, 648. 
 
858 INDEX. 
 
 Beferences are to pages. 
 
 EEAL PARTY IN INTEREST — 
 
 admission by, 801. 
 REASON — 
 
 when witness may give his, 563. 
 
 witness may state his, for jumping from a train, 563. 
 REASONABLE DOUBT — 
 
 what is, 655. 
 RECEIPT — 
 
 may be varied by parol, 303. 
 
 of payment, 303. 
 
 bill of lading as, 319. 
 
 conditions upon which it was delivered, 339. 
 
 presumption of payment from, 371, 645. 
 RECEIVER — 
 
 appointment of, must be alleged, when, 58. 
 
 need not be alleged, when, 58. 
 RECITALS — 
 
 evidence of pedigree, when, 435. 
 
 may be contradicted by parol, 436, 437. 
 
 in deeds, conclusive when, 118. 
 
 of letters, 338. 
 
 In documents, as hearsay, 419. 
 
 of public acts and statutes, 440. 
 RECOGNITION — 
 
 of pedigree, 435. 
 
 of marriage, 435. 
 RECOLLECTION — 
 
 refreshing, by memorandum, 468, 470. 
 RECORD — 
 
 not impeached by parol, 118. 
 
 not provable by admission, 118. 
 
 parol evidence admissible to show what was litigated and judgment, 115, 
 118. 
 
 cannot show that no witnesses were sworn, 118. 
 
 may be amended by parol evidence, 118. 
 
 parties to, may be identified by parol, 119, 
 
 copies of, when evidence, 334. 
 
 examined copies, 834. 
 
 general, of the nation, 335. 
 
 judicial proceedings, 337. 
 
 public, not judicial, how proved, 837. 
 
 exemplifications, 335. 
 
 family, as evidence of heai-say, 433. 
 RECORD, JUDICIAL — 
 
 of sister states, conclusive, 110, 118. 
 
 inter partes, when, 109, 115, 
 
INDEX. ' 859 
 
 Eeferences are to pages. 
 RECORD, JUDICIAL (continued) — 
 
 judgment always admissible as between same parties, 110, 130. 
 
 judgment in criminal cases not admissible in civil, 117. 
 
 how proved, 113, 115. 
 
 by record, 118. 
 
 by copies, 339. 
 
 by examined copies, 289. 
 
 by exemplification, 339. 
 
 judgments in inferior courts, 114, 117. 
 
 foreign document, 109, 119. 
 
 effect of records, 118. 
 
 as an admission, 303. 
 conclusive as to what matter, 118. 
 
 must relate to the judgment, 109, 118. 
 
 RECROSS EXAMINATION — 
 rule as to, 714. 
 
 RE-EXAMINATION — 
 
 of witnesses, rule as to, 33, 713, 
 
 may show innocence, 33. 
 
 may explain contradictory statements, 26, 713. 
 
 witness may show his version of a conversation, 36, 713. 
 
 when witness may show whole transaction of decedent, 158. 
 
 REFORMATION OF INSTRUMENTS — 
 rule as to, 265. 
 commercial paper, 366. 
 by custom and usage, 382, 384 
 consideration, 300. 
 
 REGISTER — 
 of birth, 485. 
 of marriage, 485. 
 
 of documents, execution need not be proved, when, 336. 
 entries in, evidence of fact, 439. 
 public, 439. 
 of notary public, 439. 
 
 RELATIONSHIP — 
 
 of declarant, necessary in proof of pedigree, 425. 
 
 proof by reputation, 436. 
 
 of parties to commercial paper, 313. 
 
 generally, 426. 
 
 degree, 426. 
 
 birth, 436. 
 
 death, 426. 
 
 marriage, 436. 
 
 issue or want of issue, 436. 
 
 name and place of residence, 436. 
 
 by whose declaration proved, 437. 
 
8G0 INDEX. 
 
 Beferences are to pages. 
 
 RELATIONSHIP (continued) — 
 
 declarant must be a relative of the person whose history is to be proved, 
 
 437. 
 proof of relationship of declarant, 430. 
 
 RELEASE — 
 
 must be pleaded, 47. 
 
 burden of proof of, 361. 
 RELEVANCY — 
 
 definition of, 5. 
 
 issue determines, when facts not in issue, 6. 
 
 facts which are the occasion of relevant facts, 6. 
 
 of facts inconsistent with facts in issue or relevant facts, 6. 
 
 facts which make the existence or non-existence of facts in issue or 
 relevant facts probable or improbable, 6. 
 
 indecency of evidence no objection, 6. 
 
 in support of immaterial issues, 6. 
 
 facts necessary to introduce a fact in issue, 6. 
 
 facts which support or rebut an inference, 6. 
 
 facts establishing the identity of a person or thing, 6. 
 
 facts which fix the time or place at which any fact happened, 6. 
 
 facts showing document to be genuine or otherwise, 6. 
 
 facts showing the relation of the parties by vphom any fact was trans- 
 acted, 6. 
 
 facts necessary to be known to show relevancy of other facts, 6. 
 
 in circumstantial evidence, 7. 
 
 newspaper articles, 7. 
 
 insolvency of creditors in action for alleged loan, 7. 
 
 particularity in presenting items of facts, 8. 
 
 facts to complete the setting of parts of story, 8. 
 
 fringe of the case, 8. 
 
 acts of enjoyment of land, 9. 
 trespass, 9. 
 cutting of timber, 9. 
 
 judgments in trespass, 9. 
 
 knowledge of accounts, 10. 
 
 evidence must tend to prove issue, 10. 
 
 facts tending to enable witness to remember principal fact, 10. 
 
 when not apparent, 11. 
 
 as against one or more defendants, 11. 
 
 proof of negative, 11. 
 good character, 11. 
 that party never complained, 11. 
 
 matters pending suit, 13. 
 
 repetition of libel, 13. 
 
 intention, 13. 
 
 what a witness said on a different occasion, 13. 
 
 of wife as to reason for leaving husband, 13. 
 
 reason for doing an act, 13, 
 
INDEX. 861 
 
 Heferences are to pages. 
 
 RELEVANCY (continued) — 
 
 declaration to show state of mind, 13. 
 
 declarations of wife or paramour as to legitimacy of child, 14. 
 
 declaration of servant as to how he was acting, 14. 
 
 statement of effect produced on witness by libelous matter, 14. 
 
 evidence as to how another person was affected by certain things, 14. 
 
 when party may swear that he intended to do an act, 14. 
 
 similar fraudulent acts about the same time, 14. 
 
 happenings of similar accident in same place, 15, 
 
 in another place, 15. 
 other horses frightened by same place, 15. 
 cars leaving track at other times, 15. 
 that horse was a habitual stumbler, 16. 
 habits of horse, 16. 
 
 proof of actual tests at other times, 16. 
 tests of horses, 16. 
 
 that signals were not given at another place, 16. 
 similar transactions with bank, 16. 
 sale of other notes to show notice, 17. 
 
 that other persons similarly situated were similarly affected, 17. 
 electric shock at same time, 17. 
 experiences of other persons at same place, 17. 
 that cinders had caused fire at other places, 17. 
 that sausages made at same time were good, 17. 
 of sand in sewer after overflow, 18. 
 hole in sidewalk a year after accident, 18. 
 other loose planks in sidewalk, 18. 
 piling snow in other places, 18. 
 
 that engines emitted more sparks at a particular place, 18. 
 that a person had been removed at some prior time, 18. 
 that defendant had on prior occasion abused the same person, 19. 
 other assaults before and after the one alleged, 19. 
 evidence not within the issue, 40, 41. 
 
 on trial for murder, evidence that defendant knocked down another per- 
 son two weeks prior to crime alleged, 19. 
 previous attempts by defendant to poison deceased, 19. 
 proof of robbing others than deceased, 19. 
 other prior illicit relations, 20. 
 character in libel, 23. 
 
 ill seduction, 22. 
 
 in slander, 22. 
 
 in breach of promise, 32. 
 
 cannot be put in issue by state, 33. 
 
 evidence of, limited to trait in issue, 33. 
 
 for being quarrelsome, 28. 
 
 for being dangerous, 28. 
 
 want of chastity, 28. 
 
 for peace and quietude, 33. 
 
802 INDEX. 
 
 Beferences are to pages. 
 
 RELEVANCY (continued) — 
 
 character, qualification of witness to show, 34 
 shown by state, 34. 
 intoxication as proof of, 34. 
 of place, where must be shown, 34. 
 number of witnesses allowed, 35. 
 
 RELIGIOUS BELIEF — 
 
 not always necessary to competency of witness, 133. 
 
 presumed, 133, 134. 
 
 defect in, how proved, 133. 
 
 not a test of competency, when, 135. 
 
 REPLEVIN — 
 
 ownership, how pleaded and proved, 50. 
 fraud, how pleaded and proved, 50. 
 demand, how pleaded and proved, 50. 
 source of plaintiff's title, 50. 
 
 REPUTATION — 
 
 general, definition, 30. 
 
 general bad, of prosecution in action for rape, 31, 
 
 for unchastity, 31. 
 
 particular acts of unchastity not allowed, 31. 
 
 given to rows, not admissible, 31. 
 
 evidence of specific and independent immoral acts not admissible; 81. 
 
 male witness' bad character for chastity, 21. 
 
 female witness' bad character for chastity, 21. 
 
 evidence that a person is a professional witness, 21. 
 
 witness cannot be asked if he has been impeached, 31. 
 
 if an action is pending against him for false swearing, 21. 
 conviction of witness may be shown by his exammation, 31. 
 indictment cannot be shown by cross-examination, 22. 
 witness may show innocence on redirect examination, 33. 
 where character is expressly put in issue, 22. 
 prisoner may always show good, 22. 
 general, the only, when, 23. 
 when evidence limited to particular trait, 23. 
 for being quarrelsome, 33. 
 for being dangerous, 33. 
 for want of chastity, 33. 
 for peace and quietude, 33. 
 qualification of witness to show, 34. 
 subsequent to time alleged, 24. 
 particular acts competent, when, 34. 
 intoxication as proof of, 84. 
 place where shown to be, 24. 
 witness must know general, 34. 
 inquiring on cross-examination, 35. 
 number of witnesses on question, 25. 
 
INDEX. 86S 
 
 ■Beferences are to pages. 
 
 KEPUTATION (continued) — 
 
 witness may explain contradictory statements, 36. 
 
 sustaining, 25. 
 
 sustaining witness by proof of general character, 36. 
 
 sustaining, when party entitled to, 27. 
 
 sustaining of witness shown to have been convicted of a crime, 28. 
 
 of subscribing witness, may be impeached by party calling him, 37. 
 
 when defendant offers himself as a witness state may impeach him, 38. 
 
 judge controls range of inquiry, 38. 
 
 party examining witness cannot show bias, 29. 
 
 cannot show his witness untruthful, 29. 
 party cannot call witnesses to impeach general character of witness 
 
 called by him, 39. 
 party cannot impeach his adversary when ho calls him, 39. 
 English rule as to impeachment, 30. 
 irrelevant matter to test moral sense not allowed, 31. 
 cross-examination to accuracy and veracity, 31. 
 party bound by collateral facts, 31. 
 cross-examination tending to show temper, disposition or conduct of 
 
 witness, 33. 
 motives of witness may be shown by independent evidence, 33. 
 relation between witness and party may be shown, 83. 
 laying foundation for contradicting witness, 33. 
 inconsistent statement of party to action, 35. 
 inconsistent statement of prisoner, how proved, 35. 
 plaintiff may show good, in libel, slander, seduction, 35. 
 of gambling-house, how shown, 35. 
 of disorderly house, how shown, 35. 
 must be set up by defendant in libel and slander, 36. 
 for chastity in action for seduction, 36. 
 dangerous character of deceased, in murder cases, 36. 
 proof of offer of bribes by witness, 36. 
 proof that party has offered witness bribes, 36. 
 proof that some one has threatened witness, 36. 
 malice of witness, how shown, 36. 
 revenge of witness, how shown, 36. 
 bias of witness, how shown, 37. 
 attesting witness may be impeached by former declarations, 38. 
 
 REPUTED OWNERSHIP 
 
 when evidence, 446, 465. 
 RES ADJUDICATA- 
 
 must be pleaded, when, 47. 
 
 is conclusive proof as against parties and privies directly in issue in the 
 case, 108. 
 
 conclusive as to construction of contract, 108. 
 
 conclusive as to construction of statute, 108. 
 
 party producing record must show that the subject was directly in issue, 
 109. 
 
Mi INDEX. 
 
 Beferences are to pages, 
 
 EES ADJUDICATA (continued) — 
 
 immaterial as to strangers to record, 109. 
 
 as between party and a stranger, 109. 
 
 conclusive as between party and stranger as to admiralty proceedings, 
 109. 
 
 judgments in rem conclusive, 109. 
 
 as to status and condition of a party, 109. 
 
 as to lunacy of person, 109. 
 
 on questions of a public nature, 109. 
 
 foreign judgments stand on the same footing, 'when, 110. 
 
 confession of judgment conclusive, when, 110. 
 
 want of jurisdiction may be shown, when, 110. 
 
 recitals of jurisdictional facts not conclusive. 111. 
 
 fraud in procuring judgment may be shown. 111. 
 
 strangers may impeach judgment collaterally. 111. 
 
 party to judgment cannot impeach it collaterally. 111. 
 
 judgment of court of limited jurisdiction, 111. 
 
 judgment against heirs not binding against administrator, 113. 
 
 ■decree for sale of lunatic's estate binds everybody, 113. 
 
 action against surety binds principal, when, 113. 
 
 verdict in case of pedigree binds strangers, 113. 
 
 action against prior by subsequent indorser, 113. 
 
 judgment against agent no bar to judgment against principal, 113. 
 
 judgment against deputy a bar to action against sheriff, when, 113. 
 
 judgment against principal not conclusive against surety, 113. 
 
 judgment against one joint trespasser no bar against others, 113. 
 
 judgment against one joint and several promisor, bar to action against 
 other, 114. 
 
 judgment against a party as executor not conclusive against him indi- 
 vidually, 114. 
 
 judgment against administrator not binding on distributees, 114. 
 
 judgment against heirs or devisees not binding on administrator, 114. 
 
 judgment against ancestors, when binding upon heirs, 114. 
 
 judgment against executor not binding on administrator de bonis non, 
 U4. 
 
 judgment against master, when bar to action against servant, 114 
 
 purchaser pending action bound by judgment, 114. 
 
 parol evidence admissible to show what was litigated, 115. 
 
 where counter-claim is set up and passed upon, party cannot sue for bal- 
 ance, 115. 
 
 in second action for continued trespass, 115. 
 
 judgment in action for penalty not conclusive, when, 115. 
 
 judgment for one instalment of debt conclusive, when, 115, 
 
 judgment for fraud, bar to action upon warranty, 115. 
 
 judgment in trover, bar to action for goods sold, 115. 
 
 effect of appeal from judgment, 116. 
 
 judgment entered by consent, effect of, 116. 
 
 what defenses may be shown, 116. 
 
INDEX. 865 
 
 Ee/erences are to pages. 
 
 EES ADJUDICATA (continued) — 
 
 judgment in criminal not evidence in civil case, 116. 
 verdict of coroner's jury evidence in several cases, 117. 
 party cannot show that no witnesess were sworn, 118. 
 records may be amended by parol, 118. 
 parties to judgment may be identified by parol, 119. 
 
 RES GEST^ — 
 
 admissions of principal bind surety, -when, 311. 
 
 entries of principal bind sui-ety, when, 311. 
 
 admission of execution debtor binds sheriff, when, 313. 
 
 admission of administrator, executor, trustee, etc., 314. 
 
 certificate of marriage as, 397. 
 
 joint possession is, when, 406. 
 
 persons doing business as partners, 407. 
 
 act of one partner for firm, 409. 
 
 recital of past transaction not, 485. 
 
 statement of constable when making levy, 486. 
 
 when acts ai-e, 485, 486. 
 statement of pauper as to settlement, 486. 
 statement of sheriff when making levy, 486. 
 statement of party when changing domicile, 486. 
 statement of party when leaving home, 486. 
 statement of wife when leaving home, 487. 
 statement of husband when giving wife money, 487. 
 statement of passenger at time of accident, 487. 
 declarations of bystanders at public auction, 487. 
 declaration of agent while transacting business, 487. 
 declarations after injury not, 488. 
 declarations of bystanders at fight, 489. 
 declaration of man after he had been shot, 489. 
 declaration of place of injury, 489. 
 remains with the locus in quo, 489. 
 declaration of public surveyor, 490. 
 test for determining when a declaration is, 490. 
 screams of deceased, 493. 
 
 statement of conductor of train at time of accident, 493. 
 documents as, 493. 
 continuing circumstances as, 494. 
 self-serving declarations not, 494. 
 declarations of an attorney, when, 495. 
 statement of street car driver, 497. 
 statements inter alios, 498. 
 declaration as to state of health, 409. 
 statements of party injured to his physician, 500. 
 declarations of co-conspirators, 514. 
 declarations and acts as to fraud, 518, 519. 
 acts and declarations in presence of donor, 530. 
 what is, 484, 485. 
 55 
 
866 INDEX. 
 
 Beferences are to pages. 
 
 EES GEST^ (continued) — 
 
 to show intent, 13. 
 
 what a person said on a particular occasion, 13. 
 
 declarations to show state of mind, 13. 
 
 declarations of agents as, 208. 
 RETURN — 
 
 in action by officer, 405. 
 
 of officer defending, conclusive when, 405, 
 REVOCATION — 
 
 of authority of agent, see Agent. 
 RIGHT TO BEGIN — 
 
 by plaintiff, when, 338. 
 
 by defendant, when, 839. 
 
 where there are several issues, 339. 
 RULES — 
 
 of railroad companies, 480, 481. 
 
 as to impeachment of witnesses, 34 
 RULES FOR CONSTRUCTION OF WRITINGS— 
 
 parol evidence to show meaning of words, 368, 370. 
 to identify the person or thing, 368. 
 to explain ambiguous words, 368. 
 under statute of frauds, 319. 
 
 s. 
 
 SALES — 
 
 action for goods sold and delivered must allege what, 55. 
 
 defendant may show that he acted as agent for another, 56. 
 
 defendant may show that the thing tendered was not the thing con- 
 tracted for, 56. 
 
 ability of plaintiff to deliver must be pleaded, 57. 
 
 excuse for breach not admissible under allegation of performance, 57. 
 
 buyer must allege readiness and willingness to receive, 57. 
 
 purchaser of property of decedent at official, competent, 154 
 
 by entry in shop-book, 344. 
 
 parol evidence to vary time of delivery of goods, 267. 
 
 bill of, cannot be varied4>y parol, when, 331. 
 
 burden of proof of delivery and acceptance, 341. 
 SANITY — 
 
 non-experts have been allowed to give opinion as to competency of party 
 to make a will, 553. 
 
 non-experts have been allowed to say that they saw no signs of insanity 
 about a person, 553. 
 
 non-experts may give their opinion as to whether acts or remarks of a 
 person appeared rational or irrational, 554. 
 
 witnesses present at execution of will may testify as to mental capacity 
 of testator, 555. 
 
INDEX. 867 
 
 References are to pages, 
 SANITY (continued) — 
 
 form of question as to, 555. 
 
 presumption of, 026. 
 
 must be pleaded, 50. 
 
 subscribing witnesses may testify as to mental condition of testator, 553. 
 
 non-experts may compare mind of a party with that of a child, 553. 
 
 SCIENCE — 
 
 judicially noticed, 185, 190, 
 
 SCIENTER — 
 
 proof of, in fraud, 354, 857. 
 notoriety as proof of, 357. 
 
 SCINTILLA — 
 
 of evidence, what is, 343, 
 preponderance, 355. 
 
 SEALED INSTRUMENT — 
 
 cannot be varied, when, 267, 
 
 in equity, 267. 
 
 meaning of words in, 268, 270. 
 
 consideration, 300. 
 
 conditions upon which it was delivered, 829. 
 SEALING — 
 
 acknowledgment of, 339. 
 SEALS — 
 
 judicial notice of, 181. 
 
 state acts require no, 239. 
 
 contract under, not varied by parol, 367. 
 
 of corporation, necessary, 375, 382. 
 SEARCH — 
 
 for lost documents, 345, 246, 
 
 sufficiency of, 240. 
 
 burden of proving, 246. 
 
 court must determine, when, 246. 
 
 must be made for duplicate, 246. 
 SECONDARY EVIDENCE — 
 
 what is, 239. 
 
 when admissible, 334 
 
 degrees of, 339. 
 
 duplicates, 324. 
 
 interested party may show contents of documents in possession of de- 
 cedent's representative, 167. 
 
 party cannot testify to contents of lost documents, when, 167. 
 
 verbal contents of writing not objected to, 324, 
 
 examined copies, when, 339. 
 
 certified copies, when, 239. 
 
 exemplifications, 239. 
 
 oral account of contents of document, 339. 
 
868 INDEX. 
 
 References are to pages, 
 
 SECONDARY EVIDENCE (continued) — 
 copy of a copy not evidence, 239. 
 no grades of, 239, 253. 
 
 to prove contents of lost writings by parol, 339. 
 to prove contents of collateral writings by parol, 239. 
 to prove contents of writing on voir dire by parol, 240. 
 contents of voluminous papers may be proved by parol, 240. 
 appointment to public office may be proved by parol, 240. 
 papers in the hands of opposite party who refuses to produce, 241. 
 papers beyond the jurisdiction of the court proved by parol, 241. 
 inscriptions on documents proved by parol, 241. 
 notice to produce writing, 246. 
 search for writing, 245. 
 when writing need not be produced, 244. 
 contents of shop-books may be proved by parol, 242. 
 shop-books admfssible, when, 245. 
 contents of messages may be proved by parol, 245. 
 contents of writing collateral to issue may be proved by parol, 244. 
 contents of writing not between the parties to the action may be proved 
 
 by parol, 244.. 
 instrument that has accomplished its purpose may be proved bj' parol, 244. 
 notices may be proved by parol, 245. 
 contents of notices may be proved by parol, 245. 
 contents of placards upon walls may be proved by parol, 245. 
 search for original writings, 245, 246. 
 notice to produce, necessary when, 246. 
 sufficiency of notice, 247, 249. 
 sufficiency of search for lost writings, 245. 
 party objecting to, must show the original is in existence, 2Sl. 
 document in the hands of a stranger, 251. 
 refusal of agent to produce, 251. 
 
 cannot be given where instrument is lawfully withheld, 251. 
 genuineness of original must be shown, 252. 
 sufficiency of, 258. 
 
 fraudulent destruction of original instrument, 253. 
 letters written to party out of state, 254. 
 ■dying declarations, 254. 
 deposition not, when, 255. 
 
 contents of deposition may be shown by parol, when, 355. 
 memorandum of auctioneer, 256. 
 •demonstrative, 856. 
 view of premises, 356. 
 portable objects, 256. 
 blood stains, 256. 
 view of child, 356. 
 
 description of cumbrous articles, 857. 
 pieces of clothing, 357. 
 not competent to vary or contradict writing, 263, 
 
INDEX. 869 
 
 References are to pages, 
 
 SECRETARY OF STATE — 
 certificate of, 439. 
 
 SECRETS OF STATE — 
 privileged, 102. 
 heads of departments made judges, when, 103. 
 
 SEDUCTION — 
 
 reputation directly in issue, 33, 35. 
 plaintiff may show good character in action for, 35. 
 evidence of general reputation for chastity of prosecutrix, 36. 
 language and deportment between husband and wife, competent when, 
 563. 
 
 SELF-HARMING STATEMENTS — 
 admissible, when, 202. 
 talking in sleep, 203. 
 return of officer, 320. 
 
 SELF-SERVING DECLARATIONS — 
 
 indorsement as proof of partial payment, 230. 
 
 entry in party's own book, 220. 
 
 books of account of bank, 220, 
 
 declaration of party, 220. 
 
 constable's return, 230. 
 
 survey of premises, 220. 
 
 justice's judgment, 221. 
 
 whole must be taken together, 381. 
 
 books of account of party, 243. 
 
 generally not admissible, 495, 
 
 SERVICE — 
 
 of notice, 227, 618. 
 proof of, by posting, 230. 
 through postpffice, 230. 
 
 SERVICES — 
 
 a general allegation for work and labor is sufficient, 54. 
 under a complaint upon quantum merutt, plaintiff cannot prove con- 
 tract, 54. 
 under an allegation of special contract plaintiff must prove it, 54. 
 the time alleged must be proved, 34. 
 
 evidence of excuse for non-performance cannot be shown under an al- 
 legation of performance, 55. 
 defendant may show that the services performed as a gratuityj 55. 
 that the work was unskilfully done, 5i5, 
 that nothing is due the plaintiff, 55. 
 that the contract is void under the statute of frauds, 55. 
 of minor child for parent, supposed, to be gratuitous, 600. 
 presumption as to, 614. 
 
870 INDEX. 
 
 Eeferences are to pages. 
 SETTLEMENT — 
 
 offer of, privileged, 128. 
 
 privilege extends to all communications, 129. 
 
 admissions expressed or implied from the offer, privileged, 130. 
 
 SHERIFF — 
 
 return of, 405. 
 
 surety on indemnity bond of, incompetent when, 169. 
 admissions of execution debtor bind, vyhen, 313. 
 statement of, when making levy, 486. 
 
 SHOP-BOOKS — 
 
 when admissible, 160, 345. 
 
 of party, competent against decedent's estate, 160. 
 
 must be verified, how, 344. 
 
 of tradesmen, 463. 
 
 must be kept, how, 463, 465. 
 
 must have been a regular course of dealing, 463, 466. 
 
 some articles must have been actually delivered, 463, 466. 
 
 it must appear that party kept fair books, 463, 466, 
 
 New York rule as to, 464. 
 
 time of entry material, 467, 
 SIGNATURE — 
 
 proof of, 337, 328. 
 
 comparison, 573. 
 
 party may testify to, of decedent, 163. 
 
 courts take judicial notice of, 186. 
 
 of attesting witness, proved how, 335. 
 
 SIGNS — 
 
 evidence of feelings, 220. 
 
 dying declarations by, 455. 
 SILENCE- 
 
 admissions by, 203. 
 
 when witness cannot state that decedent was silent, 157. 
 
 statement must call for a reply, 203. 
 
 it must appear that party heard declarations, 205. 
 
 party under ari'est not bound by statement of officer, 305^ 
 SLEEPING-GAE — 
 
 tickets, 337. 
 
 company liable for acts of servants, 353.. 
 SOVEREIGNS — 
 
 courts take judicial notice of, 181. 
 SPECIFIC PERFORMANCE— 
 
 wife incompetent for husband in action for, 150, 
 SPOLIATION — 
 
 of papers, effect of, 631. 
 
 of evidence, presumption of guilt, 631. 
 
 presumption as to alteration, 633. 
 
 presumption as to suppression, 633. 
 
INDEX. 871 
 
 Seferences are to pages. 
 STATE SECRETS — 
 
 heads of departments made judges, when, 102. 
 privileged, 103. 
 
 STATEMENT OF PARTY INJURED TO PHYSICIAN — 
 when competent, 500. 
 
 STATEMENTS INTER ALIOS — 
 what are, 498. 
 
 STATEMENTS MADE IN PRESENCE OF ANOTHER — 
 
 when party bound by, 203. 
 
 when silence not acquiescence, 204. 
 
 when person asleep, 204. 
 
 person must be in a position to require information, 204. 
 
 it must appear that the person heard the declaration, 204 
 
 party not called upon to dispute, 205. 
 
 party under arrest not bound by statement of officer, 205. 
 STATUTE — 
 
 recitals of, 440. 
 
 evidence under plea of, 43. 
 
 proviso and exceptions, 44. 
 
 burden of proof as to, 345. 
 
 courts take judicial notice of, 181, 194. 
 STATUTE OF FRAUDS — 
 
 admission of party in place of writing, 233. 
 
 evidence of parol contract inadmissible, 818. 
 
 cannot be varied by subsequent parol agreement, 319. 
 
 memoranda under, must contain all agreement, 319. 
 
 all memoranda must be read together as part of, 319. 
 
 burden of proof of delivery and acceptance, 340. 
 
 agreement to assign debt under, void when, 373. 
 
 cannot be proved under general denial, 45. 
 
 must be duly pleaded, 67. 
 
 cannot be shown by parol admission, 200. 
 STOCKHOLDER — 
 
 competent to testify against representative of deceased party, 153, 166. 
 STOLEN PROPERTY — 
 
 possession of, presumptive evidence of guilt, 646. 
 SUBPCENA DUCES TECUM — 
 
 must be served, when, 247. 
 
 stranger must be served with, when, 247. 
 
 non-production of document by stranger, 251. 
 
 lawful non-production by third party, 251. 
 
 secondary evidence cannot be given upon an unlawful refusal to produce, 
 251. 
 SUBSCRIBING WITNESS — 
 
 to will, 27. 
 
 party calling may impeach, 27. 
 
872 INDEX. 
 
 Bfferences are to pages. 
 
 SUBSCRIBING WITNESS (continued) — 
 
 declaration of, to impeach, 38. 
 
 presumptions of proof of signature ot, 38. 
 SUBSEQUENT CHANGES OF OONTEAOT — 
 
 when may be shown, 320. 
 
 ■when cannot be shown, 330. 
 
 time of payment of, 320. 
 
 agreement, 324. 
 SUFFICIENCY OF SECONDARY EVIDENCE OF WRITING - 
 
 execution of original, 253. 
 
 loss of original, 253. 
 
 letters written to party out of state, 254. 
 
 dying declarations, 254. 
 
 copy of, telegrams, 254. 
 SUFFICIENT EVIDENCE TO GQ TO THE JURY — 
 
 what is, 343. 
 
 who must determine, 343. 
 
 in negligence oases, 349. 
 
 in insurance cases, 349, 
 
 preponderance, 349. 
 
 in cases of fraud, 354 
 SURETY — 
 
 entries by principal, bind when, 210. 
 
 admission of principal does not bind, when, 210. 
 
 declaration of guarantor, binds principal when, 211. 
 
 on indemnity bond of sheriff, incompetent when, 169. 
 
 joint maker of paper may show that he was to be, 311. 
 
 admissions by principal, 210. 
 
 cannot testify in favor of principal's estate, 155. 
 
 on decedent's note, 169. 
 
 SURROUNDING CIRCUMSTANCES — 
 
 in aid of construction of writing, 274, 275, 397. 
 
 SURVEYS — 
 
 when evidence, 424 
 SURVIVORSHIP- 
 
 presumptions aa to age, 682. 
 
 as to health, 682. 
 as to sex, 632. 
 SUSTAINING — 
 
 witness sustained by fornjer statement, 25, 27. 
 
 general character of witness, 26. 
 
 witness must know character, 26. 
 
 SYMBOLIC WRITING — 
 what is, 573. 
 signed by cross, 572. 
 how proved, 573. 
 
INDDX. 873 
 
 Beferencef are to pages. 
 
 T. 
 
 TALKING IN SLEEP — 
 
 not admissible, when, 203. 
 TECHNICAL TERMS — 
 
 may be explained by parol, 268, 371, 585. 
 
 provincial expressions, 268, 585. 
 
 legal meaning, 368, 585. 
 
 commercial meaning, 585, 869. 
 
 in aid of construction of contract, 376. 
 
 forms of expression, 377, 585. 
 TELEGRAM — 
 
 messages by, competent, 531. 
 
 contents of, proved by parol, 845, 254. 
 
 loss of original must be shown, 354. 
 
 in answer to another, 354. 
 
 sender as agent of 'another, 254. 
 
 negligence of company in sending, 354. 
 
 TELEPHONE -^ 
 
 messages by, competent, 521, 523. 
 
 courts take judicial notice of, 187. 
 TENANT — 
 
 cannot dispute title of landlord, 120. 
 
 admission of co-tenant not binding, 203. 
 
 cannot vary terms of lease by petrol, when, 333. 
 
 parol contracts to put premises in repair, 323. 
 
 contract of, to make repairs, 824, 
 TENDER— 
 
 nature and effect of, 62, 372. 
 
 must be pleaded, 48. 
 TERMS OF ART— 
 
 may be explained, when, 546, 553. 
 TESTIMONY — 
 
 of deceased witness, 159. 
 
 impeached how, 38. 
 
 death of party before completion of examination does not affect, already 
 taken, 159. 
 
 meaning of, 161. 
 
 books, papers and instruments not, 161. 
 
 of a deceased party, competent as against decedent's estate, 16U 
 
 given on a former proceeding, 474. 
 
 between same parties, 476. 
 
 THREATS — 
 
 by defendant, 668. ' 
 
 by deceased, 669. 
 
 to witness, 36. 
 
 confession obtained by, 318. 
 
874 INDEX. 
 
 Beferences are to pages. 
 
 TIME OF PERFORMANCE OF CONTRACT— 
 enlarged by parol, 320. 
 where writing is silent aa to, 379. 
 
 TITLE — 
 
 declaration of former owner, 460. 
 
 possession presumptive evidence of, 646. 
 
 acts of ownership, 646. 
 
 in a stranger, must be pleaded, 42. 
 
 warranty, when must be pleaded, 42. 
 
 in another, not admissible under general denial, 53. 
 
 an averment that plaintiflf sold and delivered goods imports, 56. 
 
 of officers, must be alleged how, 59. 
 
 particular sources of, may be shown under general allegation, 67. 
 
 second action for continued trespass not conclusive evidence of, 115. 
 
 bailee cannot dispute, of bailor, 120. 
 
 licensee cannot dispute, of licensor, 120. 
 
 tenant cannot dispute, of landlord, 120. 
 
 agent cannot dispute, of principal, 130. 
 
 deriving ; meaning of, as to competency of witnesses, 162. 
 
 grantor incompetent as a witness, when, 170. 
 
 grantee incompetent as a witness, when, 170. 
 
 assignor incompetent as a witness, when, 170. 
 
 assignee incompetent as a witness, when, 170. 
 
 heir incompetent witness, when, 171. 
 
 legatee incompetent witness, when, 171. 
 
 official, of executors, 383. 
 
 ■of property in possession of husband and wife, 400. 
 
 of property in possession of wife, 400. 
 
 proof of, of officer, not necessary, when, 403. 
 
 ■of officer suing for property, 403. 
 
 certificate of election of officer, 403. 
 
 of de facto, of officer, 404. 
 
 presumed when, 404. 
 under ancient deed, 446. 
 
 declaration accompanying possession of ancient deed, 446. 
 hearsay, as to private, 447. 
 modern exercise of right, 449. 
 by prescription, 648. 
 dedication of highway, 650, 654. 
 license, 651. 
 
 land under, 653. / 
 
 walls and banks, 654, 
 
 TITLE OF SOVEREIGNS — 
 judicially noticed, 181, 190. 
 
 TOMBSTONES — 
 
 inscriptions on, proof of, 345, 333, 436. 
 
INDEX. 875 
 
 References are to pages. 
 TORTS — 
 
 of agent of corporation, 380. 
 
 of wife in presence of husband, 402. 
 TOWNS — 
 
 courts take judicial notice of, 193, 
 TRADITIONS — 
 
 as evidence, 416, 450. 
 
 public and general rights, 400. 
 
 declarant must be dead, 431. 
 
 ancient general history, 431. 
 
 ante litem motam, 423. 
 
 witness need not state from whom he heard, 423. 
 
 declarations as to particular facts not admissible, 434, 
 
 facts as to family history, 425. 
 
 as to marriage, 438. 
 
 marriage certificate, 435. 
 
 inscriptions on tombstones, 430. 
 
 coat-armor and mural inscriptions, 436. 
 
 TRANSACTION — 
 
 interested party may testify to same, 165. 
 
 when executor or administrator has testified, 165. 
 
 what is same, 165. 
 
 party cannot show, called out by him on cross-examination, 166. 
 
 party may state that an alleged, with decedent never took place, 167. 
 
 what are res gestae, 485. 
 
 TREASON — 
 
 witnesses necessary to prove, 383. 
 rendering witness incompetent, 140, 
 
 TREATIES-^ 
 
 courts take judicial notice of, 181. 
 
 TRESPASS — 
 
 ownership of land, how proved, 9. 
 
 judgments in actions of, 9. 
 
 allegation of unlawful entry, 49. 
 
 defendant cannot prove justification under general denial, 49. 
 
 public officer may prove justification under general denial, 49, 
 
 description of premises, 67. 
 
 second action for continued, not conclusive evidence of title, 115. 
 
 TRIBUNAL — 
 
 courts take judicial notice of, 181. 
 
 TRUE PARTY AND CHARACTER OF PARTY — 
 may be shown, when, 321, 
 
 TRUE RELATION OP PARTIES — 
 to commercial paper, 313. 
 may be shown, when, 314, 
 
876 INDEX. 
 
 iJe/ere»ce3 are to pages. 
 TRUSTEE — 
 
 no party can testify as against, to a conversation with a lunatic or idiot 
 
 147. 
 party to an action, 148. 
 what interest disqualifies, 148. 
 incompetent to testify in his own interest, 151. 
 of an express trust, 208. 
 
 when is not agent, 208. 
 admission by, 214 
 
 admission of one against the other, 214 
 not bound by, of cestui que trust, 215. 
 relation of parties, how shown, 323. 
 declarations of, 382. 
 will be presumed to have conveyed, when, 647. 
 
 u. 
 
 ULTRA VIRES — 
 
 who may allege, 376, 380. 
 creditor dealing with corporation, 376. 
 estoppel by corporation, 378. 
 contracts within the scope of, 379. 
 
 UNDERSTANDING — 
 
 witness may give his, 562. 
 
 UNDUE INFLUENCE — 
 presumed, when, 368. 
 
 UNILATERAL INSTRUMENTS — 
 what are, 295. 
 
 may be proved by parol, 296. 
 consideration, 297, 300. 
 parol evidence to complete, 303, 
 
 UNKNOWN PRINCIPAL — 
 to commercial paper, 317. 
 indorsement of paper, 317. 
 evidence to charge, 317. 
 to show who is, 317. 
 to show corporation, 317. 
 
 USAGE — 
 
 proof of, competent when, 376. 
 mtist be pleaded, 43. 
 
 general, courts take judicial notice of, 185, 
 annexed to writing by parol, 288, 383, 384 
 adding incident to contract by, 293. 
 when custom not valid, 293. 
 meaning of words interpreted by, 293, 
 qualities of, 387. 
 
INDEX. 87Y 
 
 References are to page's. 
 USAGE (continued) — 
 
 local, notice of must be shown, 389. 
 how estabhshed, 288. 
 as hearsay, 419. 
 
 USURY — 
 
 must be specially pleaded, 50. 
 burden of proof as to, 363, 367. 
 
 V. 
 
 VALUE — 
 
 opinion of, 677. 
 
 may be proved under general denial, 51. 
 
 witness may testify to, of property purchased of deceased, 159. 
 
 witness may testify to, of service performed for deceased, 159. 
 
 VARYING WRITING BY PAROL — 
 when not allowed, 263. 
 when between strangers, 363. 
 
 VERBAL PROOF — 
 
 to prove contents of lost writings, 239. 
 
 to prove contents of collateral writings, 389. 
 
 to prove contents of writing on voir dire, 240. 
 
 contents of voluminous paper may be proved by, 240. 
 
 appointment to public office may be proved by, 240. 
 
 papers in the hands of the opposite party who refuses to produce, 241. 
 
 papers beyond the jurisdiction of the court proved by, 341. 
 
 inscriptions on monuments proved by, 341. 
 
 contents of account books proved by, 343. 
 
 <5ontents of shop-books may be proved by, 243. 
 
 oontents of messages may be proved by, 345. 
 
 contents of writing collateral to issue, 844. 
 
 contents of writing not between the parties to the action maybe proved 
 
 by, 344. 
 instrument that has accomplished its purpose, 244. 
 of notices, 345. 
 
 proof of contents of notice by, 345. 
 contents of placards upon walls may be proved by, 345. 
 non-production of document by stfanger, 351, 
 refusal of agent to produce writing, 251. 
 letters written to party out of state, 354. 
 dying declarations, 254. 
 description of cumbrous articles, 257. 
 pieces of clothing, 257. 
 
 not competent to vary or contradict writing, when, 263. 
 not competent to add to writing, 363. 
 fraud in obtaining writing may be shown by, 363, 
 want of consideration may be shown by, 363. 
 
878 INDEX. 
 
 Beferences are to pages. 
 
 VERBAL PROOF (continued) — 
 mistake may be shown by, 363. 
 illegality of writing may be shown by, 263. 
 collateral agreement to writing may be shown by, 363. 
 not excluded by memoranda, 364. 
 contracts merged in written, 364 
 to explain receipt, 303. 
 to vary receipt, 303. 
 to contradict receipt, 303. 
 competent to complete an agreement of which a writing is only a part, 
 
 303. 
 to cut down or take away obligations, 334. 
 agreement when part only put in writing, 324. 
 may contradict writing by, when, 335. 
 contract will not be allowed to modify or vary written, 365. 
 where instrument does not purport to be complete, 365. 
 where instrument appears to be complete, 365, 
 rule in Pennsylvania, 265. 
 not admissible to explain writing, 366. 
 to vary time of delivery of goods, 367. 
 in equity allowed to vary writing, when, 267. 
 unilateral contracts may be shown by, 295. 
 competent as to existence, identity or validity of contracts, 296. 
 to show that a writing purporting to be a contract was not intended as 
 such, 397. 
 
 VERDICT — 
 
 of coroner's jury, evidence of, several cases, 117. 
 as hearsay, 119. 
 
 VERIFICATION — 
 
 interested party may verify complaint against estate of decedent, 149. 
 party may verify his account against estate of deceased, 159. 
 witness cannot swear that he saw decedent sign affidavit of, 159. 
 
 VIEW — 
 
 when may be taken, 356. 
 
 of child, to show paternity, 256. 
 
 VILLAGE — 
 
 courts take judicial notice of, 193. 
 
 VOIR DIRE — 
 what is, 131. 
 examination on, 181. 
 as to confession of prisoner, 317. 
 verbal proof to prove contents of writing on, 240. 
 
 VOLUMINOUS — 
 
 facts and accounts result of, 240, 343. 
 provable by parol, 340, 343. 
 
INDEX. S7& 
 
 Beferences are to pagei 
 
 w. 
 
 WAIVER — 
 
 of privilege, 93. 
 by client, 93. 
 by patient, 96. 
 by husband and wife, 107. 
 
 must be specially pleaded, 50. 
 
 of witness, as to criminating answer. 76. 
 
 any party may waive the privilege, 98. 
 
 party calling physician, privilege, 98. 
 testifying himself, privilege, 98. 
 
 who may waive privilege after death of party, 99. 
 
 parents may waive privilege for children, 101. 
 attorney for client, 101. 
 
 of incompetency of witness, 165. 
 
 of demand and notice, 336. 
 
 burden of proof of, 343. 
 WAR — 
 
 judicially noticed, 184 
 WARRANTS — 
 
 original, must be produced, 233. 
 WARRANTY — 
 
 if relied upon, must be alleged, 57. 
 
 judgment for fraud, bar to action upon, 115. 
 
 written, cannot be varied by parol, when, 334 
 
 burden of proof of, 360. 
 WAY — 
 
 public, how proved, 650, 654 
 WHAT IS NOT A PERSONAL TRANSACTION — 
 
 that witness saw deceased at a certain time and place, 175. 
 
 value of property, 176. 
 
 that a person obtained a paper from room where deceased was, 176. 
 
 witness cannot state that a note was never paid, 176. 
 
 witness cannot verify his own books of account, 176. 
 
 witness may testify that he had possession of a paper prior to and at the 
 time of the death of the decedent, 176. 
 
 proof of the state of mind of witness a.s to belief, 177. 
 
 party cannot testify that be received a deed from deceased through post- 
 office, 177. 
 WHAT WITNESSES MAY STATE OPINION — 
 
 woman as to pregnancy of another, 544 
 
 as to insanity, 556. 
 WHEN WRITING FREE FROM DOUBT — 
 
 parol evidence to explain, 366. 
 
 that commercial paper was to be paid on a contingency, 266. 
 
 patent ambiguity, 381. 
 
-S80 INDEX. 
 
 References are to pages. 
 
 WHEN WRITING NEED NOT BE PRODUCED OR ACCOUNTED FOR — 
 collateral to the issue, 244. 
 deposit in bank, S44. 
 
 when not between the parties to the action, 344. 
 when instrument has accomplished its purpose, 244 
 
 WHEN WRITTEN INSTRUMENT MAY BE CON'TRADICTED BY 
 PAROL— 
 when parties to instrument are not the parties to the action, 336. 
 between strangers, 386. 
 when one of the parties is a stranger, 386. 
 
 WHERE INSTRUMENT APPEARS TO BE COMPLETE — 
 no parol agreement allowed, 265, 303. 
 Pennsylvania rule, 365. 
 commercial paper, 366. 
 consideration, 300. 
 
 WHERE INSTRUMENT DOES NOT PURPORT TO BE COMPLETE — 
 oral agreement provable, 265. 
 commercial paper, 266. 
 guaranty, 373. 
 aided by parol, 303. 
 
 WIDOW — 
 
 when competent in action against heirs, 149. 
 
 incompetent in action to set aside a deed, 150. 
 
 ■competent to testify against assignee of deceased husband for insurance, 
 150. 
 
 who has joined her husband in a deed, competent to show want of con- 
 sideration, 150. 
 
 inventory of, incompetent, 151. 
 
 cannot testify, when, 161, 173. 
 
 competent to testify against purchaser under an execution, 167. 
 
 cannot state confidential communications, when, 104, 108. 
 WIFE — 
 
 who competent to testify against husband, 105. 
 
 letters of, to husband, 106. 
 
 witness in criminal case, 106. 
 
 may prove any assault upon her, 141, 144. 
 
 confidential communication with husband, privileged, 103. 
 
 protection extended after death of either party, 104. . 
 
 neither husband nor wife can be compelled to testify as to confidential 
 communications, 104. 
 
 voluntary testimony by wife admissible, when, 104. 
 
 confidential communication between husband and wife in presence of 
 third party not privileged, 104. 
 
 proof of marriage necessary to make privilege, 104. 
 
 protection extended after divorce of either party, 105, 
 
 letters written by husband to wife privileged, 105. 
 
INDEX. 881 
 
 Beferences are to pages. 
 WIFE (continued) — 
 
 in action for divorce, where counter-claim is set up either party, may- 
 testify to irrelevant acts, 105. 
 
 oomraunioatio'n at very time of marriage, 105. 
 
 non-communication not privileged, 105. 
 
 communications before marriage, 105. 
 
 in action for separation, 105. 
 
 either party may testify in favor of the other, 105. 
 
 in action for criminal conversation, wife competent to testify against 
 husband, 106. 
 
 wife not competent to testify for husband in action for criminal conver- 
 sation, 106. 
 
 wife competent to testify against husband in murder, 106. 
 
 letters between husband and, privileged, 106. 
 
 business transaction between husband and, not privileged, 106. 
 
 communication between husband and wife in presence of third party 
 not privileged, 106. 
 
 confidential communications are such as are made confidentially, 107. 
 
 confidential communications may be waived against party by whom of- 
 fered, 107. 
 
 party seeking to suppress privileged communication must show its char- 
 acter, 108. 
 
 when competent for husband as against decedent's estate, 153. 
 
 husband's failure to support, is wrongful, 361. 
 
 domicile that of husband, 395. 
 
 loaned from, to husband, presumed when, 399. 
 
 property in possession of, presumption as to title, 400. 
 
 gift of property, when presumed, 401. 
 
 separate estate of, not presu med, 401. 
 
 separate business of, not presumed, 401. , 
 
 services of, belong to husband, 401. 
 
 torts of, in presence of husband, 403. 
 
 debts contracted for family, 403. 
 
 action by husband for aliening of, 403. 
 
 intention to charge separate estate, 403. 
 
 statement of wife when leaving home, 487. 
 
 statement of husband when giving money to, 487, 
 
 WILL — 
 
 cancellation of, implied, 634. 
 
 parol evidence in aid of construction, 274, 275, 389. 
 latent ambiguities, 368, 374, 378, 381. 
 patent ambiguities, 373, 279, 281. 
 beneficiaries under, incompetent to testify, when, 156. 
 legatee cannot testify in support of a, 164. 
 may testify in aid of a contestant, 164. 
 attesting witness must be called, when, 325, 
 proof of destroyed, 335. 
 
 signature of attesting witness proved how, 325, 
 56 
 
882 IXDEX. 
 
 Ebferences are to pages. 
 WILL (continued) — 
 
 declaration of testator as to execution of, 337. 
 proof of, by one attesting witness, 231. 
 proof of, where all attesting witnesses are dead, 331. 
 proof of, where all attesting witnesses are out of jurisdiction, 331. 
 ancient, proves itself, when, 333. 
 ambiguities of, how shown, 281, 389. 
 power of corporations to take under, 376. 
 construction of, 389. 
 
 extrinsic evidence to aid in construction of, 390, 395. 
 alteration of, 390. 
 error in date, how corrected, 390. 
 
 witness pi-esent at making of, may testify as to mental capacity of tes- 
 tator, 555. 
 
 cannot show part, 390. 
 
 cannot show interlineations in, 390. 
 
 cannot show that a sheet was not a part thereof, 390. 
 legatee not named, 891. 
 devisee not named, 391. 
 children, meaning of, 391. 
 nephews, meaning of, 391. 
 false words in, 393. 
 two claimants to same gift, 393. 
 identification of person, 393. 
 if subject of bequests, 393. 
 extrinsic evidence to show property given, 394. 
 ademption of property given, 394 
 declaration of testator as to contents of lost will, 461. 
 presumption of revocation of, 634. 
 attesting witness may testify as to mental capacity of testator, 555. 
 
 WITNESSES — 
 
 number necessary to establish treason, 386. 
 
 to establish perjury, 384. 
 
 to establish general reputation, 35. 
 c )mpetency of pai'ties, 131, 151, 
 husband and wife, 141, 150. 
 after divorce, 143. 
 after death of one, 143. 
 legal marriage necessary, 141. 
 waiver of privilege, 107. 
 r^jja extends to all criminal cases, 78, 
 dying declarations, 451. 
 to be sworn, 135. 
 path necessary, 133. 
 judge, when incompetent, 84. 
 juror competent, when, 103. 
 competency of witnesses, 131, 151. 
 deficiflflt in mental capacity, 138. 
 
INDEX. 883 
 
 References are to pages. 
 WITNESSES fcontinued) — 
 insane persons, 138, 140. 
 deaf and dumb persons, 131, 133. 
 competency of children, 185, 
 religious belief, 134. 
 general principle, 134. 
 degree of faith necessary, 134. 
 defect of faith never presumed, 135. 
 how ascertamed and proved, 134, 135. 
 sworn, how, 135. 
 infamy, extent of disability, 138. 
 
 effect of pardon, 188. 
 infamy, proved how, 133. 
 infamy, removed how, 138. 
 accomplice, corroboration necessary, 145, 146. 
 
 party to negotiable instrument incompetent to impeach it, when, 180. 
 interest as against a deceased party, 668. 
 test of, 169. 
 mode of proof, 174. 
 extent of, 170. 
 
 from liability over, 168. 
 agent for principal, 147, 170. 
 husband for wife, 160, 165. 
 of wife for husband, 160. 
 parties to negotiable paper, 130, 169. 
 partners, 168. 
 in record, 148. 
 release of, 166. 
 objection to incompetency, 156, 170. 
 examination on voir dire, 131. 
 in chief, 696, 700. 
 leading questions, 696, 700. 
 cross, 703. 
 
 witness may refer to memorandum, 699. 
 witness cannot be impeached by party calling him, 27, 
 witness surprising party calling him, 696, 700. 
 cross-examination as to matters called out by direct examination, 709. 
 as to collateral facts, 36. 
 as to feelings of hostility, 33. 
 as to intimacy, 33. 
 with party respecting writing, 710. 
 of defendant in criminal cases, 73. 
 proof of previous indictment, 83. 
 conviction, 31. 
 impeaching credit of, 35. 
 
 by proof of conviction of crime, 38. 
 
 by disproving testimony, 36. 
 
 by general reputation, 25. 
 
 by self-contradicting statements, 37. 
 
88i INDEX. 
 
 Beferences are to pages. 
 
 WITNESSES (continued) — 
 
 supporting, by showing fornaer statement, 25, 27. 
 
 mode of cross-examination as to contents of writings, 706. 
 
 re-examination, 26. 
 
 qualification of witnesses to show character, 24. 
 
 general character of, 34. 
 
 may explain contradictory statements, 26. 
 
 sustaining proof of general character, 36. ' 
 
 party calling subscribing, may impeach him, 27. 
 
 when a defendant offers himself as a, in a criminal case, the people may 
 impeach him, 28. 
 
 party calling, may show his contradictory statements, 28. 
 cannot show bias in his, 29. 
 
 untruthfulness, 29. 
 cannot call witness to impeach general character of, 29. 
 
 party cannot impeach his adversary when he calls him as, 29. 
 
 party bound by collateral facts, 31. 
 
 cross-examination binding to show temper, disposition or conduct of 
 witness, 32. 
 
 motives of, may be shown by independent evidence, 32. 
 
 relation between, and party may be shown on cross-examination, 32. 
 
 laying foundation for contradicting, 32. 
 
 attention must be called to the time and place, 33. 
 
 proof of inconsistent statements of, after death of, 34. 
 
 inconsistent statements of prisoner, how proved, 35. 
 
 proof of corrupt motives of, 36. 
 
 proof of offer of bribes by, 36. 
 
 proof that party has offered bribe, 36. 
 
 proof that some one has threatened him, 36. 
 
 malice of, how shown, 36. 
 
 revenge of, how shown, 36, 
 
 bias of, how shown, 37. 
 
 hostility of, how shown, 37. 
 
 declaration of absent or deceased person, 38. 
 
 proof of signature of subscriber, 38. 
 
 presumptive evidence of truth, 38. 
 
 testimony of deceased, impeached how, 88. 
 
 privilege of, 72. 
 
 for state, not bound to answer, 103. 
 
 neither husband nor wife is competent to prove access or non-access, 104, 
 144. 
 
 in action for divorce, where counter-claim is set up, either party may tes- 
 tify to relevant facts, 105. 
 
 in action for criminal conversation wife competent for defendant, 106. 
 
 wife not competent to testify for husband in action for criminal conver- 
 sation, 106. 
 
 wife competent, against husband in murder trial, 106. 
 
 second wife competent, in action for bigamy, when first marriage is 
 proved, 106. 
 
INDEX. 
 
 880' 
 
 References are to pages. 
 WITNESSES (continued) — 
 
 examination on voir dire, 131. 
 when competency of, must be shown, 133. 
 objection must be to improper evidence, 133. 
 incompetent from extreme youth, 133. 
 deaf and dumb person not incompetent, 183. 
 lunatic not competent as, when, 137, 138. 
 
 competent as, when, 138. 
 intoxicated, incompetent when, 138.. 
 perjury, rendering incompetent, 140. 
 
 treason, 140. 
 neither husband nor wife competent to testify against each other in a 
 
 criminal case, 141. 
 husband and wife competent as against each other as to a crime com- 
 mitted, when, 143. 
 wife not competent as against co-defendant for her husband, 143. 
 
 for a co-defendant of her husband, 148. 
 where husband and wife are jointly indicted, declarations of either in- 
 competent, 143. 
 dying declaration of either husband or wife incompetent as against each 
 
 other, 144. j 
 
 against decedent's estate — 
 
 no party can testify to a personal transaction or communication 
 
 with deceased person as against his estate, 147. 
 mother may testify as to personal transaction, in favor of child, 148. 
 husband competent in favor of his wife, when, 149. 
 wife competent in favor of husband, when, 149. 
 widow, when competent in action against heirs, 149. 
 wife of husband, party to action for real estate, incompetent, 150. 
 widow incompetent to set aside a deed, 150. 
 wife incompetent against assignee of deceased husband, 150. 
 ■widow competent, against assignee of life policy from husband, 150. 
 widow who has joined her husband in a deed, competent to show 
 
 want of consideration, 150. 
 mother of illegitimate child competent to testify against estate of 
 
 putative father, 151. 
 administrator inconipStent in own favor, 151. 
 
 when, cannot testify that conversation took place, 151, 
 
 that he never heard of sale, 151. 
 legatee incompetent, 153. 
 oflBcers of corporation competent to testify against party, 153. 
 heirs competent, 153. 
 agent competent, 153. 
 purchaser of property of decedent at official sale competent, 154 
 when competent to testify he saw papers signed by deceased, 154. 
 
 that he saw deceased sign paper, 154. 
 surety incompetent in favor of principal's estate, 155. 
 maker of note competent, in favor of indorser, 155. 
 indorsers competent, in actions between themselves, 155. 
 
886 INDEX. 
 
 References are to pages. 
 WITNESSES (continued) — 
 
 against decedent's estate (continued) — 
 
 beneficiaries under a will competent, when, 156. 
 
 surviving partner incompetent to testify, when, 156. 
 
 transferee of negotiable paper, not assignee, 156. 
 
 when incompetent to state that entry was made, 156, 167. 
 
 when incompetent to state that decedent was silent, 157. 
 
 mother competent, as to birth of child, 157. 
 
 may testify as to deposit of money to credit of decedent, 157. 
 
 may testify that he paid his own money upon decedeot's debt, 157. 
 
 cannot testify that he left notices at decedent's house, 157. 
 
 may deny any statements of others, 158. 
 
 may swear that he had possession of property, 158. 
 
 when may state whole transaction on oross-exaroiaatJQU, 158. 
 
 when may state whole transaction on re-exaotinatiao, 158. 
 
 may state that instrument has been offered, 158. 
 
 cannot state that he had a conversation with deceased, 158. 
 
 may state that certain letters found in decedent's pqaaessign were in 
 
 testator's handwriting, 158. 
 death of one party before completion of instrument, 159. 
 cannot testify to physical condition of decedent, 159. 
 executor cannot testify to payment of money to decedent, 159. 
 party may verify his claim against, 159. 
 cannot testify that he saw deqedent sign affidavit of verification, 
 
 159. 
 may testify as to value of property purchased of decedent, 159. 
 
 services performed for deceaseij, 159. 
 party's booljs competent, 16(X 
 
 may state that a. conversation did not take plape, 161. 
 meaning of word " testimony," 161. 
 conversation in presence of decedent m^de to him, 161. 
 books, papers and instruments of decedent not testimony, 161, 
 widow not competent to testify to mai-riage, when, 161. 
 testimony of deceased person competent, 161. 
 who cannot testify to declarations of parents as to legitimacy of 
 
 children, 163. 
 assignee deriving title, meaning of aa to competency of, 162. 
 may testify to signature of decedent, 162. 
 may testify to extraneous facts, 163. 
 cannot testify in indirect method, 163. 
 cannot testify to an address on a package, 163. 
 cannot testify to contents of a box, 163. 
 legatee cannot testify in support of a will, 164, 171. 
 legatee may testify in aid of a contestant, 164 
 beneficiary cannot testify in support of a wiU, 164. 
 who must object to competency of, 164. 
 objection to, must be made, when, 164. 
 ground of objection to, must be pointed out, 164 
 waiver of incompetency of, 165. 
 
IKDEX. 
 
 887 
 
 Beferenoes are to pages, 
 WITNESSES (continued) — 
 
 against decedent's estate (continued) — 
 
 interested party may testify to same conversation or transaction tes- 
 tified to by administrator, 165. 
 party cannot show transaction called out by him on cross-examina- 
 tion, 166. 
 ■widow competent as against purchaser under execution, 167. 
 may testify that he had no conversation with decedent, 167. 
 that alleged transaction with decedent never toolc place, 167, 
 
 that indorsement was on paper when delivered to him, 167. 
 cannot testify that he carried an inkstand, 168. 
 interest that disqualifies, 168. 
 guardian as, 170. 
 surety on decedent's note a competent, 169. 
 
 on indemnity bond of guardian, incompetent when, 169. 
 sheriflE incompetent, when, 170. 
 grantee incompetent as, when, 170. 
 grantor, 170. 
 assignee, 170. 
 assignor, 170. 
 may testify to facts showing impossibility of transaction, 175. 
 cannot testify that a note was never paid, 176. 
 
 verify his own boolis of account, 176. 
 may testify that he had possession prior to and at the time of the 
 
 death of decedent, 176. 
 cannot testify that received a deed from decedent through the post- 
 
 offlce, 177. 
 may state that he believed and relied upon the statements, 176. 
 
 WORDS — 
 
 meaning of, explained, 268, 270. 
 
 WORK— 
 
 presumption as to, 614. 
 
 a general allegation for worls: and labor is suflBcient, 54. 
 under complaint for quantum meruit, plaintiff cannot prove contract, 54. 
 under an allegation of special contract plaintiff must prove it, 54. 
 the time alleged must be proved, 54. 
 
 evidence of excuse for nou-perfurmance cannot be shown under an alle- 
 gation of performance, 55. 
 
 that the work was unskilfully done, 55. 
 
 that nothing is due the plaintiff, 55. 
 
 that the contract is void under the statute of frauds, 55. 
 defendant may show that the, was performed as a gratuity, 55. 
 witness may testify to value of, for decedent, 159. 
 burden of proving tliat other, could have been obtained is upon the em- 
 ployer, 361. 
 
 WRITINGS — 
 
 inconsistent statements in, 84. 
 excludes what, 334. 
 
8S8 INDEX. 
 
 BefereTices are to pages. 
 WRITINGS (continued) — 
 
 instruments which the law requii-es to be in, 224. 
 
 contracts which party have reduced to, 234. 
 
 all, the existence or contents of which are disputed, 224. 
 
 accompanied by verbal statements, 224. 
 
 collateral, 224. 
 
 duplicate primary evidence, counterpart primary evidence, 224, 225. 
 
 lithographic copy, 225. 
 
 photographic copy, 225. 
 
 attested documents must be proved, how, 225. 
 
 documents duly acknowledged, 226. 
 
 document executed by public ofBcer, 226. 
 
 execution, how proved, 236. 
 
 sufHcient knowledge to make witness competent to testify to, 228. 
 
 ancient, proves itself, when, 232. 
 
 warrants must be produced, 233. 
 
 admissions of party in place of, 233. 
 
 examined copies, 234. 
 
 general records of the nation, 235. 
 
 verbal proof to prove contents of lost, 239. 
 
 verbal proof to prove contents of collateral, 239. 
 
 verbal proof to prove contents of, on voir dire, 240. 
 
 contents of voluminous, proved by parol, 240. 
 
 beyond jurisdiction of the court, proved by parol, 241. 
 
 in the hands of the opposite party who refuses to produce, 241. 
 
 inscriptions on monuments proved by parol, 241. 
 
 loss of, how proved, 243. 
 
 search for lost, 245, 246. 
 
 notice to produce, 246. 
 
 when must be produced, 244. 
 
 when need not be produced or accounted for, 243. 
 
 contents of telegrams may be proved by parol, 245. 
 
 contents of shop-books may be proved by parol, 242. 
 
 not between the parties to the action may be proved by parol, 244 
 
 contents of, collateral to issue, may be proved by parol, 244. 
 
 proof of contents of notice may be proved by parol, 245. 
 
 proof of contents of placards upon walls may be proved by parol, 245. 
 
 subpoena duces tecum must be served on strangers, 248. 
 
 in the hands of a stranger, 251. 
 
 refusal of agent to pi-oduce, may be proved by parol, 251. 
 
 sufficiency of secondary evidence of, 253. 
 
 fraudulent destruction of, effect of, 253. 
 
 not competent to vary or contradict, when, 262. 
 
 not competent to add to, when, 263. 
 
 fraud in obtaining, may be shown by pai'ol, 263. 
 
 illegality of, may be shown by parol, 263. 
 
 collateral agreement to, may be shown by parol, 263. 
 
 parol not admissible to explain, 266. 
 
INDEX. 
 
 88& 
 
 References are to pages* 
 WITNESSES (continued) — 
 
 parol not admissible to show ambiguities, 368. 
 
 to explain relation of words, 268. 
 
 to explain abbreviations, 368. 
 
 to identify the person or thing mentioned in, 268. 
 
 to vary, in equity, when, 368. 
 contracts not signed by both parties, 295. 
 parol evidence to complete, 303. 
 conditions upon which it was delivered, 839. 
 when may be contradicted by parol, 385. 
 as hearsay, 418. 
 party presumed to know contents of, 601. 
 
 WRITINGS WITHOUT THE JURISDICTION OF THE COURT — 
 may be proved by parol, 341, 345. 
 
 Z-RAYS — 
 
 when admissible, 361. 
 
^ 893^ B8l 1898 
 
 Author 
 
 Vol. 
 
 Bradner, George ¥. 
 
 Title 
 
 Rules of Evidence ^°"