OJorn^U ICaui i^rlynnl Sjtbrary 
 
Cornell University Library 
 
 KF 8950.R21 c.2 
 
 A treatise on the "a* o| "fSS^^^ 
 
 17" I •■ r ' 
 
Cornell University 
 Library 
 
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 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020173310 
 
A 
 
 TREATISE 
 
 ON THE 
 
 Law of Witnesses. 
 
 BY 
 
 STEWAET EAPALJE. 
 
 oj*;o<. 
 
 BANKS & BROTHERS, 
 
 144 Nassau Street, New York; 
 473 AND 475 Broadway, Albany, N.Y. 
 
 1887. 
 
Entered, according to Act of Congress, in the year 1887, by 
 
 BANKS & BROTHERS, 
 
 in the Office of the Librarian of Congress, at Washington. 
 
PEEFACE. 
 
 ~CpIVE or six years since, while preparing a brief, the 
 writer had occasion to look up many of the earlier 
 as well as the more recent authorities upon the compe- 
 tency and credibility of witnesses; and while doing so, 
 was greatly impressed with the discovery that these, as 
 well as all other matters appertaining to the law of Wit- 
 nesses, were very briefly and inadequately treated of in 
 the existing text-books on Evidence. 
 
 This state of things, taken in connection with the fact 
 that no distinctive treatise on witnesses had ever been 
 written, so far as he could ascertain, by any English or 
 American legal author, induced the writer to prepare this 
 book, in the hope that it would serve to fill one of the 
 few still remaining gaps in the literature of the law. 
 
 The inherent difficulty of the task has been greatly 
 increased by the want of harmony among the decisions 
 upon nearly every important point ; this having been, 
 doubtless, occasioned by the same state of affairs that 
 inspired the idea of undertaking the task. 
 
 The main endeavor has been to cite all the cases ex- 
 hibiting the different shades of opinion, leaving it, gene- 
 rally, for the reader to pin his faith to such of them as, 
 in his judgment, most correctly lay down the law; but 
 the writer has not hesitated to denounce as unsound 
 some few decisions which appeared to him to be clearly 
 
IV PEEFACE. 
 
 wrong and in no way reconcilable with fundamental 
 principles of law. 
 
 If the book meets with the same kind indulgence at 
 the hands of the bar, which his former works have been 
 so fortunate as to receive, the two years' labor bestowed 
 upon its preparation will, by no means, be time thrown 
 away. S. R. 
 
 Leonia, N. J., May 1, 1887. 
 
TABLE OF CONTENTS. 
 
 PART I. — COMPETENCY. 
 
 CHAPTER I. 
 
 OF MENTAL DISQUALIFICATIONS. 
 
 FASE 
 
 I. Preliminary Observations. — 2. Insufficient Understanding. — 
 
 3. Idiots. — 4. Insane Persons. — 5. Intoxicated Persons. — 
 6. Deaf -Mutes. — 7. Children : Age as affecting Competency. 
 — 8. The Requisite Religious Instruction. — 9. Competency of 
 Witness as dependent upon Means of Knowledge. — 10. Effect 
 of Imperfect Recollection 1 
 
 CHAPTER II. 
 
 OF MORAL DISQUALIFICATIONS. 
 
 II. Defect of Religious Belief. — 12. Ascertaining Competency with 
 Reference to Religious Belief. — 13. Statutory Abolition of In- 
 competency upon this Ground. — 14. Common-Law Rule as to 
 Infamous Persons. — 15. What constitutes Infamy. — 16. How 
 Infamy may be proved. — 17. Effect of Foreign Judgment of 
 Conviction. — 18. Effect of Conviction of Minor Offence. ■ — 
 19. Removal of Incompetency by Pardon, Reversal of Judgment, 
 or Expiration of Sentence. — 20. Abolition of the Disability by 
 Statute. — 21. Accomplices 11 
 
 CHAPTER III. 
 
 OF SOCIAL DISQUALIFICATIONS. 
 
 22. Indians. — 23. Negroes and Slaves. — 24. Chinamen 26 
 
 CHAPTER IV. 
 
 COMMON-LAW RULE AS TO PARTIES TO THE RECORD. 
 
 ;». 
 
 The General Rule excluding them. — 26. The Scope and Extent 
 of the Rule. — 27. Its Limits and Exceptions. — 28. Disinter- 
 ested, Nominal, and Unnecessary Parties. — 29. Parties Liable 
 for Costs. — 30. The Rule in Courts of Equity. — 31. Competency 
 
Vi COiJTENTS. 
 
 PAOE 
 
 of One Party as a Witness for Another Party. — 32. Competency 
 
 of Defendant for Co-defendant, generally. — 33. in Actions 
 
 on Contract. — 84. in Actions of Tort. — 35. in Suits 
 
 in Equity. — 86. Competency of Defendant for Plaintiff. — 37. 
 Competency of Plaintiff for Defendant. — 88. Effect of Default, 
 
 Nolle Prosequi, or Verdict, in Actions on Contract. — 39. in 
 
 Actions of Tort. — 40. Effect of Misjoinder of Parties Defend- 
 ant. — 41. Witness made Party by Mistake. — 42. Common Law 
 Rule as to Defendants in Criminal Cases. — 43. Effect of Sepa- 
 rate Indictments or Separate Trials. — 44. Effect of examining 
 Adverse Party as a Witness. — 45. Competency of Judges and 
 Arbitrators 29 
 
 CHAPTER y. 
 
 COMMON-LAW RULE AS TO PEKSONS INTERESTED IN THE EVENT. 
 
 46. The General Rule excluding them. — 47. The Scope and Limits 
 of the Rule. — 48. Operation of the Rule as to Witnesses whose 
 
 Interest is balanced. — 49. or preponderates against the 
 
 Party callinsj them. — 50. or who will testify against Inter- 
 est. — 51. ^Vitness Liable for Costs 51 
 
 CHAPTER VL 
 
 VARIOUS ILLUSTRATIONS OP THE RULE AS TO PARTIES AND PERSONS 
 
 INTERESTED. 
 
 52. Assignor or Assignee. — 53. Attorneys. — 54. Bail. — 55. Bailor 
 or Bailee. — 56. Bankrupts. — 57. Debtor or Creditor. — 58. 
 Donor or Donee. — 59. Grantor or Grantee. — 60. Guardian or 
 Ward. — 61. Heirs, Devisees, Legatees, and Next of Kin. — 
 62. Jurors, Grand and Petit. — 63. Landlord or Tenant. — 
 64. Mortgagor or Mortgagee. — 65. Negotiable Paper, Parties 
 to. — 66. Non-Negotiable Paper, Parties to. — 67. Obligor and 
 Obligee. — 68. Officers. — 69. Parent or Child.— 70. Partners.— 
 71. Part-Owners. — 72. Personal Representatives. — 73. Princi- 
 pal or Agent. — 74. Principal or Surety. — 75. Prosecutoi's and 
 
 Informers 76. Servants. — 77. Shareholders and Corporate 
 
 Officers. — 78. Trustee or Cestui que Trust. — 79. Usurious Con- 
 tracts, Parties to. — 80. Vendor and Purchaser of Lands. — 81. 
 of Personal Property. — 82. Warrantors 60 
 
 CHAPTER VII. 
 
 RESTORATION TO COMPETENCY BY RELEASE OR ASSIGNMENT OF INTER- 
 EST, PAYMENT, OR OTHER DIVESTMENT OP INTEREST. 
 
 83. Release of Interest, generally. — 84. Who may give a Release. — 
 85. When the Court may release. — 86. Time to execute Release. 
 
CONTESTS. VU 
 
 PAGX 
 
 — 87. What Interests are, and what are not removed. — 88. What 
 is a Good and Sufflcieut Release. — 89. Assignment or Transfer 
 
 of Interest. — 90. Divestment of Interest by Payment. — 91. 
 
 by Disclaimer of Title. — 92. by Judgment for or against 
 
 the Witness. — 93. Effect of Indemnifying the Witness. — 94. 
 Other Modes of restoring C9mpetency. — 95. Necessity of Seal ; 
 Assent; Delivery. — 96. Proof of Release ; Objections, etc. . . 136 
 
 CHAPTER VIII. 
 
 OPERATION OF ENABLING STATUTES IN CIVIL CASES. 
 
 97. In General. — 98. United States Courts. — 99. District of Colum- 
 bia. — 100. Alabama. — 101. Arizona. — 102. Arkansas. — 103. 
 California. — 104. Colorado. — 105. Connecticut. — 106. Dakota. 
 
 — 107. Delaware. — 108. Florida. — 109. Georgia. — 110. Idaho. 
 
 — 111. Illinois. — 112. Indiana. — 113. Iowa. — 114. Kansas. — 
 115. Kentucky. — 116. Louisiana. — 117. Maine.— 118. Mary- 
 land. — 119. Massachusetts. — 120. Michigan. — 121. Minnesota. 
 
 — 122. Mississippi. — 123. Missouri. — 124. Montana. — 125. 
 Nebraska. — 126. Nevada. — 127. New Hampshire. — 128. New 
 Jersey. — 129. New Mexico.— 130. New York. — 131. North 
 Carolina. — 132. Ohio. — 133. Oregon. — 1.34. Pennsylvania. — 
 135. Rhode Island. — 136. South Carolina. — 137. Tennessee. — 
 138. Texas. — 139. Utah. — 140. Vermont. — 141. Virginia.— 
 142. Washington Territory. — 143. West Virginia. — 144. Wis- 
 consin. — 145. Wyoming 150 
 
 CHAPTER IX. 
 
 STATUTORY COMPETENCY OF DEPENDANTS IN CRIMINAL CASES. 
 
 146. In General; and herein of the Necessity of a Statute. — 147. 
 Character of the Enabling Acts. — 148. Extent of the Right to 
 testify. — 149. Right to show Intent. — 150. Effect of Omission 
 to testify; Comments by Counsel. — 151. Effect of becoming a 
 Witness ; Legitimate Comments. — 152. His Testimony Admis- 
 sible against him on a New Trial. — 153. Statement of Accused. 247 
 
 CHAPTER X. 
 
 RULES AS TO HUSBAND AND WIFE. 
 
 154. The Common-Law Rule excluding them. — 155. Scope and Ex- 
 tent of the Rule. — 156. Not Competent against each other. — 
 157. Or for each other. — 158. Or to prove Non-Acoess. — 159. 
 Proving the Marriage: its Duration Immaterial. — 160. Limits 
 and Exceptions to the Rule. — 161. Collateral Proceedings. — 
 162. Cases of Agency. — 163. Effect of Consent, or Release of 
 
Viii CONTENTS. 
 
 FAOB 
 
 Interest. — 164. Surviving Husband. — 165. Widow. — 166. Di- 
 vorced Spouse. — 167. Cases of Personal Injuries. — 168. Actions 
 for Divorce, or to annul the Marriage. — 169. Actions for Abduc- 
 tion, or for Criminal Conversation. — 170. Criminal Actions . . 
 
 266 
 
 CHAPTER XI. 
 
 TRYING THE QUESTIOJS^ Or COMPETENCY. 
 
 171. Objections to Competency, generally. — 172. Grounds of Objec- 
 tion. — 173. Tlie Proper Time to interpose the Objection. — 
 174. Trial of Objections to Competency. — 175. Examination on 
 the Voir Dire. — 176. Producing Extrinsic Evidence. — 177. Pre- 
 sumptions and Burden of Proof. — 178. Waiver of Objections to 
 Competency. — ^ 179. Review. Errors cured below 293 
 
 PART II. — CREDIBILITY. 
 CHAPTER XII. 
 
 ELEMENTARY PRINCIPLES. 
 
 180. The Question of Credibility one for the Jury. — 181. How far 
 dependent on Means of Knowledge or Recollection. — 182. Or 
 on the Character and Conduct of the Witness. — 183. Or his 
 Manner and Appearance. — 184. Or his Bias or Interest. — 185. 
 . Or Relationship to Party calling him. — 188. Credibility of Par- 
 ties in Civil Actions. — 187. Of Agents and Servants. — 188. Of 
 Accomplices. — 189. Of Spies and Informers. — 190. Of Defend- 
 ants in Criminal Cases. — 191. Rules for weighing Testimony. 
 — 192. The Maxim "falsus in iinofahus in omnibus." — 193. Posi- 
 tive and Negative Testimony. — 194. Conflicting Testimony. — 
 195. When one Witness is Sufficient 305 
 
 CHAPTER XIII. 
 
 CONTRADICTING, DISCREDITING, AND IMPEACHING WITNESSES. 
 
 196. The Right to contradict or impeach a Witness. — 197. Right to 
 impeach Character. — 198. Competency of Witness to Character. 
 — 199. What Questions may be put to Witness to Character. — 
 200. Sufficiency and Effect of Proof as to Character. — 201. 
 Showing Previous Conviction or Prosecution for Crime. — 202. 
 Showing Bias or Prejudice. — 203. Proof of Contradictory or 
 Inconsistent Statements, generally. — 204. Can Former State- 
 ment be proved where Witness neither admits nor denies? — 
 205. Proof of Contradictory Written Statements. — 206. Whole 
 
CONTENTS. IX 
 
 PAQE 
 
 Paper need not be shown Witness. — 207. Proving Contents of 
 Lost Writing. — 208. Cross-Exainination as to Previous State- 
 ments must show whether they were in Writing or in Words. — 
 209. Contradiction not allowed where Former Statement is Im- 
 pertinent or Immaterial. — 210. Showing Previous Expressions 
 of Opinion Inconsistent with Witness' Testimony 326 
 
 CHAPTER XIV. 
 
 DISPROVING OR IMPEACHING THE EVIDENCE OF ONE'S OWN WITNESS. 
 
 211. The General Rule forbidding Impeachment. — 212. Its Scope 
 and Extent. — 213. Its Limits and Exceptions. — 214. Fact sworn 
 to may be disproved. — 215. How far the Rule applies where One 
 Party calls the Adverse Party. — 216. Unfriendly or Hostile 
 Witnesses 350 
 
 CHAPTER XV. 
 
 CONFIRMING AND CORROBORATING WITNESSES. 
 
 217. The Right to corroborate a Witness. — 218. The Necessity of 
 Corroboration, generally. — 219. Where Witness is shown to 
 have falsified. — 220. To overcome Answer in Chancery. — 221. 
 Competency of Corroborating Evidence. — 222. Its Sufficiency 
 and Effect. — 223. Sustaining a Witness by Proof of Character. 
 — 224. Showing Previous Consistent Statements. — 225. Corrob- 
 oration of Prosecuting Witnesses in Certain Cases 360 
 
 CHAPTER XVL 
 
 CORROBORATION OF ACCOMPLICES. 
 
 226. The Necessity of Corroboration. — 227. Its Sufficiency. — 228. 
 
 Who are deemed Accomplices within the Rule 375 
 
 PART III. — EXAMINATION. 
 
 CHAPTER XVIL 
 
 IN GENERAL. 
 
 229. Discretionary Powers of the Court. — 230. The Order of Exami- 
 nation. — 231. Notice of Intention to examine a Witness. — 
 282. Examination on the Voir Dire , 383 
 
JC CONTENTS. 
 
 CHAPTER XVIII. 
 
 EXAMINATION-IN-CHIEF, OR DIRECT EXAMINATION. 
 
 FASi: 
 
 233. General Rules. — 234. Power of Court to control and limit. — 
 235. The Oath or Affirmation.— 236. Interpreters. — 237. Sepa- 
 rate Examination. Exclusion from Court-Room. — 288. What 
 Questions are Proper. — 239. Inquiring as to Intent or Motive. 
 — 240. Rule forbidding Leading Questions. — 241. What Ques- 
 tions are Leading. — 242. When One may lead his Own Witness. — 
 243. Proprietj' and Sufficiency of Witness' Answers. — 244. Ob- 
 jections to Questions or Answers 386 
 
 CHAPTER XIX. 
 
 CROSS-EXAMINATION. 
 
 245. Extent of the Right to cross-examine. — 246. How far limited 
 by the Direct Examination. — 247. How far limited to Relevancy 
 to the Issue. — 248. What Questions are Proper. — 249. Leading 
 Questions. — 250. Sufficiency and Effect of Witness' Answers. — 
 251. Cross-Exaraination of Defendants in Criminal Cases. — 252. 
 Cross-Examination of Accomplices and Persons jointly indicted. 405 
 
 CHAPTER XX. 
 
 RE-EXAMINATION, REBUTTAI, AND SURREBBTTAL, RECALLING AND 
 RE-EXAMINING. 
 
 253. Re-direct Examination. — 254. Re-cross-Examination. — 255. 
 Examination in Rebuttal, or Surrebuttal. — 256. Recalling and 
 Re-examining Witnesses 417 
 
 CHAPTER XXI. 
 
 PRIVILEGE TO REFUSE TO ANSWER, GENERALLY. 
 
 257. In what Cases the Privilege may be claimed. — 258. When An- 
 swer may subject AVituess to Civil Suit or Pecuniary Loss. — 
 259. Or to a Penalty or Forfeiture. — 260. Or disgrace and 
 degrade him, or render him Infamous 423 
 
 CHAPTER XXIL 
 
 PRIVILEGE AS TO SELF-CRIMINATING TESTIMONY. 
 
 261. In General; and herein of the Maxim "nemo tenetur seipsum 
 accusare." — 262. In what Cases the Privilege may be claimed. — 
 263. When it may not be. — 264. At what Stage of the Trial, • 
 and how it may be claimed. — 265. The Privilege Personal to the 
 
CONTENTS. XI 
 
 PAGE 
 
 Witness. — 266. Shall Court or ■Witness determine as to Ten- 
 dency to criminate. — 267. Effect of Refusal to answer; Com- 
 ments by Court or Counsel. — 268. Effect of Pardon, Statute of 
 Limitations, or Act protecting the Witness. — 269. Waiver of 
 the Privilege 430 
 
 CHAPTER XXIII. 
 
 PRIVILEGED COMMUNICATIONS.' 
 
 270. In General ; Scope of this Chapter. — 271. Between Counsel and 
 Client. — 272. Between Physician and Patient. — 273. Between 
 Clergyman and Layman. — 274. Between Husband and Wife. — 
 275. Judges and Arbitrators. — 276. State Secrets; Communi- 
 cations between OiBoials. — 277. Secrets of the Jury-Room. — 
 278. Other Cases 446 
 
 CHAPTER XXIV. 
 
 KEFRESHING THE MEMORY. 
 
 279. In General. — 280. When Memoranda or Other Writings may 
 be referred to. — 281. What Writings may be used for this Pur- 
 pose. — 282. When the Writing must be produced. — 288. When 
 Witness must testify from Independent Recollection. — 284. 
 When the Memoranda, etc., are themselves Evidence. — 285. 
 Proper Practice where Witness is Blind or cannot read .... 460 
 
 PART IV. — OPINIONS, 
 CHAPTER XXV. 
 
 OPINIONS OP NON-PKOFESSIONAL WITNESSES. 
 
 286. The General Rule excluding Opinions. — 287. Scope and Extent 
 of the Rule. — 288. Its Limits and Exceptions. — 289. Opinions 
 as to Value. — 290. Opinions as to Amount of Damage. — 291. 
 Opinions as to Sanity and Mental Capacity 473 
 
 CHAPTER XXVI. 
 
 EXPERT TESTIMONY. 
 
 292. What Questions call for Expert Testimony. — 293. Qualifica- 
 tions of Experts. Competency. — 294. Examination of Experts. 
 Hypothetical Questions. — 295. Physicians, Surgeons, and 
 Chemists. — 296. Persons skilled in the Law. — 297. Surveyors 
 
CONTENTS. 
 
 and Civil Engineers. — 298. Mechanics, Artisans, and Persons 
 skilled in a Trade or Vocation. — 299. Experts in Handwriting. 
 — 300. Effect and Value of Expert Testimony 487 
 
 PART v. — ATTENDANCE AND COMPENSATION. 
 CHAPTER XXVII. 
 
 SECURING ATTENDANCE. — PUNISHING DELINQUENTS. — PRIVILEGES OP 
 WITNESSES IN ATTENDANCE AT COURT. 
 
 301. Modes of securing Attendance. — 302. Punishment of Witness 
 for Refusal to attend. — 303. Or for Refusal to be sworn or to 
 testify. — 304. Or for Disobedience of Subpoena dnces tecum. — 
 305. Privileges of Witnesses in Attendance at Court .... 515 
 
 CHAPTER XXVIII. 
 
 COMPENSATION OF WITNESSES. 
 
 306. Of Ordinary Witnesses. — 307. Of Experts 580 
 
TABLE OF OASES. 
 
 A. 
 
 Abbott V. Case, 364. 
 
 V. Clark, 57, 275. 
 
 V. Cobb, 56. 
 
 V. Johnson, 531. 
 
 V. Mitchell, 95. 
 
 V. Stribben, 63. 
 Abby V. Goodrich, 140. 
 Abeles Be, 523. 
 Abercrombie v. Hall, 76. 
 Able V. Sparks, 394. 
 Abshire v, Williams, 177. 
 Acerro v. Petroni, 396. 
 Ackler v. Hickman, 467, 470. 
 Adams v. Adams, 283, 335. 
 
 V. Allen, 244. 
 
 V. Barrett, 51, 299. 
 
 V. Brown, 411. 
 
 V. Capron, 404. 
 
 i;. Carver, 92. 
 
 V. Gardiner, 56. 
 
 V. Greenwich Ins. Co., 361. 
 
 V. Jones, 169. 
 
 V. Leland, 125. 
 
 V. Moore, 89. 
 
 V. Pittsburg Ins. Co., 362. 
 
 V. Sandige, 110. 
 
 V. Wheeler, 351. 
 
 V. Woods, 61. 
 Adams Express Co. v. Haynes, 172. 
 Adkins v. Hershy, 158. 
 Adriance v. Arnot, 387. 
 Adwell V. Commonwealth, 47. 
 Agan w. Hey, 454. 
 Aicardi v. Strang, 107. 
 Aiken u. Cato, 103, 407. 
 
 V. Kilburne, 69. 
 
 o. Stewart, 421. 
 Aitken v. Mendenhall, 408. 
 Ake V. State, 6. 
 
 Alabama &c. Ins. Co. v. Sledge, 185. 
 Alabama &c. E. R. Co. v. Oaks, 154. 
 
 V. Sanford, 127. 
 Albany v. Derby, 531. 
 Albatross v. Wayne, 473. 
 
 Albaugh V. James, 270. 
 Albright v. Corley, 530. 
 Alcorn v. Cook, 227. 
 Alden v. Goddard, 188. 
 Alderman v. People, 442, 445. 
 
 v. Tirrell, 102. 
 Alexander v. Crosthwaite, 107. 
 
 V. Dutcher, 209, 215, 219. 
 
 o. Emerson, 121. 
 
 V. Hoffman, 173. 
 
 V. Knox, 424. 
 
 V. Mahon, 84. 
 
 V. Shortridge, 39. 
 
 .;. Town of Mt. Sterling, 489. 
 Alexandria v. Mandeville, 55. 
 Allan V. Blanchard, 108. 
 
 u. Hutchins, 352, 
 AUeman v. Stepp, 328. 
 Allen, Matter of, 522. 
 Allen V. Blanchard, 284. 
 
 V. Brown, 55. 
 
 V. Carty, 101. 
 
 V. Davis, 168. 
 
 ^. Gilkey, 223. 
 
 i;. Harrison, 339. 
 
 V. Hawks, 66, 146. 
 
 V. Holkins, 83. 
 
 V. Hudson &c. Ins. Co., 62. 
 
 V. Lacy, 115, 148. 
 
 V. May, 187. 
 
 V. Morgan, 168. 
 
 V. Public Administrator, 451. 
 
 V. Eusseli, 272. 
 
 V. Shelby, 145, 186. 
 
 V. State, 47, 312, 338, 400. 
 
 w. Westport, 125. 
 
 V. Young, 297. 
 AUentown Bank v. Beck, 42. 
 AUis V. Day, 499. 
 
 V. Stafford, 215. 
 Allison V. Allison, 58. 
 
 V. Barrow, 453. 
 
 V. Hubbell, 404. 
 
 V. State, 48. 
 Alonzo V. State, 290. 
 Alston V. Huggins, 56, 57. 
 
XIV 
 
 TABLE OF CASES. 
 
 Alston V. Jones, 131. 
 AUgelt V. Brister, 235. 
 American Bank v. Jenness, 95. 
 American Ins. Co. u. Insley, 110. 
 American Life Ins. Co. v. Roscnagle, 
 
 500. 
 Ameriscoggin Bridge v. Bragg, 127. 
 Ames, Succession of, 282. 
 Ames V. St. Paul &c. R. R. Co., 114. 
 
 V. Witliington, 91. 
 Amey v. Long, 526, 527. 
 Amherst v. Hollis, 437. 
 Amherst &c. R. R. Co. v. Watson, 192. 
 Amherst Bank v. Root, 507. 
 Ammidown v. "Woodman, 59. 
 Amonett v. Fisk, 187. 
 
 V. Montague, 200. 
 Amory v. Fellows, 290, 390. 
 Anahle v. Anable, 285. 
 Anderson v. Anderson, 284, 453. 
 
 V. Barnes, 82. 
 
 ... Bradie, 233. 
 
 I. Brock, 125. 
 
 V. Busteed, 211. 
 
 V. Collins, 324. 
 
 V. Dunn, 95. 
 
 V. Friend, 285. 
 
 V. Hance, 199. 
 
 V. Irvine, 112, 299. 
 
 V. Johnson, 510. 
 
 i^. Maberry, 13. 
 
 V. Moe, 530. 
 
 V. Primrose, 78. 
 
 V. Prindle, 39. 
 
 V. Russell, 371, 405. 
 
 V. Saunderson, 278. 
 
 V. Smoot, 119. 
 
 V. Snow, 107, 401. 
 
 r. Snyder, 269. 
 
 V. State, 336, 426. 
 
 V. Walter, 405. 
 
 V. Wearer, 39. 
 
 V. Wilson, 168. 
 Andre v. Bodman, 55, 295. 
 Andrews v. Frye, 441. 
 
 V. Jones, 473. 
 Andrews v. Nelson, 268. 
 
 v. Ohio &c. R. R. Co., 448. 
 
 V. State, 65. 
 Angel K. Soils, 217. 
 Angell V. Hester, 200. 
 
 V. Union County, 530. 
 Annis v. People, 256, 257. 
 Anonymous, 6, 12, 36, 206, 293, 308, 
 
 314, 385, 392, 448. 
 Anscliicks v. State, 82. 
 
 Anson v. Dwight, 481. 
 Anthony v. Smith, 388, 497. 
 
 c. Stinson, 183, 499, 511. 
 Apperson v. Goggin, 173. 
 Appleby v. Astor Fire Ins. Co., 50-1. 
 Applegate v. Moffit, 177. 
 Appleton V. Boyd, 31, 425. 
 
 V. Donaldson, 88. 
 Archer i'. Greer, 168. 
 Arding v. Flower, 528. 
 Armistead v. State, 25. 
 
 V. Ward, 117. 
 Armitage v. Snowden, 190. 
 Arras V. Stockton, 145. 
 Armstrong v. Desliler, 91. 
 V. Noble, 281. 
 0. People, 371. 
 t>. Risteau, 499. 
 ,/. Smith, 483. 
 V. Timmons, 4. 
 Amd V. Amling, 14. 
 Arndt v. Harshaw, 280. 
 Arnett v. Weeks, 110. 
 Arnold v. Anderson, 142. 
 V. Arnold, 12. 
 V. McNeill, 134. 
 V. Nye, 406. 
 Arrowsmith «. Durell, 135. 
 Artcher v. McDuffie, 413. 
 Arthur v. Blunt, 181. 
 Arthurs v. King, 227. 
 Artz V. Chicago &c. E. R, Co., 352, 
 422. 
 V. Grove, 138. 
 Asay V. Reed, 77. 
 Ash V. Guil, 228. 
 Ashby V. West, 294. 
 Ashland v. Marlborough, 479. 
 Ashley v. Wolcott, 364, 411. 
 Ashton V. Parker, 41. 
 Aske V. Murchison, 115. 
 Askea t. State, 376. 
 Aston V. Jemison, 109. 
 Atchison &c. R. R. Co. v. Black- 
 shire, 411. 
 17. Stanford, 393. 
 V. Thul, 512. 
 Athey v. McHenry, 51. 
 Atkins V. Guice, 119. 
 
 V. State, 348, 465. 
 Atlantic &c. R. R. Co. v. Campbell, 
 224, 483. 
 V. Hodnett, 37. 
 Attorney General v. Briant, 456. 
 V. Hitchcock, 346, 348, 410. 
 Atwood V. Meredith, 478. 
 
TABLE OF CASES. 
 
 XV 
 
 Atwood p: Scott, 364. 
 
 0. Welton, 12, 14. 
 
 V. Wright, 95. 
 Auld V. Walton, 319. 
 Aulger V. Smith, 409. 
 Ault V. Eawson, 298. 
 Aumick v. Mitchell, 509. 
 Aurora v. Cobb, 408. 
 
 V. Hillman, 479. 
 Austin V. Bradley, 79. 
 
 V. Dorwin, 142. 
 
 V. Fuller, 90. 
 
 V. Poiner, 443. 
 
 V. State, 407. 
 Avery v. Police Jury, 502. 
 Aveson v. Lord Kinnaird, 284. 
 Ayers v. Campbell, 136. 
 
 v. State, 25, 375. 
 Aymett v. Butler, 233. 
 Ayres v. Ayres, 192, 282. 
 
 V. Duprey, 330, 332. 
 
 V. Van Lien, 116. 
 
 V. Water Commissioners, 492. 
 
 B. 
 
 Babb V. Clemson, 294. 
 Babbott V. Thomas, 276. 
 Babcock v. Babcock, 419. 
 
 V. Huntington, 134. 
 
 V. Middlesex &c. Bank, 474. 
 • V. People, 252, 451. 
 
 V. Smith, 299. 
 Baccio V. People, 374. 
 Bacey's Case, 432. 
 Bach V. Parmley, 279. 
 Bachelder v. Brown, 195, 
 Bacon v. Trisbie, 448. 
 
 V. Harrington, 102. 
 
 V. Hutchings, 107. 
 
 V. Lee, 181. 
 
 V. Minor, 98. 
 
 V. Robinson, 192. 
 
 V. Williams, 192, 507. 
 Badger v. Story, 9. 
 Bagley v. Clement, 532. 
 
 V. Francis, 500. 
 
 V. Osborn, 140. 
 Bailey v. Bailey, 138. 
 
 T). Barnelly, 298. 
 
 V. Cooper, 96, 413. 
 
 V. Doak, 105. 
 
 u. Foster, 134. 
 
 V. Keyes, 181. 
 
 u. Knapp, 96. 
 
 V. Simpkin, 52, 95. 
 
 V. Ogden, 116. 
 
 Bailey i\ Pool, 473. 
 
 V. State, 370. 
 Baillie v. Hale, 66, 138. 
 Bainfield v. State, 326. 
 Baird v. Cochran, 424. 
 
 «. Daly, 40§. 
 Bakeman v. Kose, 330. 
 Baker v. Arnold, 447. 
 
 V. Baker, 177. 
 
 V. Brill, 532. 
 
 ii. Corey, 55. 
 
 V. Commonwealth, 120. 
 
 V. Kellogg, 226. 
 
 V. Pearce, 84. 
 
 V. Sanderson, 73. 
 
 V. United States, 49. 
 Baldwin v. West, 326. 
 Ball (/. Bank of Alabama, 145. 
 Ballanee v. tJnderhill, 390. 
 Ballard v. Ballard, 223. 
 
 V. Bancroft, 101. 
 
 V. Lockwood, 394. 
 
 V. Noaks, 30, 47. 
 Ballentine v. White, 270. 
 Ballou V. Tilton, 203. 
 Baltimore &c. K. R. Co. v. Thompson, 
 
 503. 
 Banert v. Day, 9. 
 Banfield v. Massey, 371. 
 Bank v. Bates, 127. 
 
 V. Boraef, 468. 
 
 V. Fordyce, 90. 
 
 v. Wycoff, 127. 
 Bank of Alabama v. McDade, 129. 
 Bank of Alexandria v. Mandeville, 260. 
 
 V. McCrea, 127. 
 Bank of Auburn i\ Walter, 94. 
 Bank of Charleston u. Chambers, 97. 
 
 V. Emeric, 207. 
 Bank of Columbia v. French, 89. 
 
 V. Magruder, 90, 294. 
 Bank of Kentucky v. Mc Williams, 121. 
 
 V. Shier, 355. 
 Bank of Limestone v. Penick, 91, 142. 
 Bank of Louisiana v. Hudson, 30. 
 Bank of Metropolis v. Jones, 89, 93. 
 Bank of Missouri v. Hull, 88. 
 Bank of Montgomery v. Walker, 98. 
 Bank of Niagara v. Austin, 531. 
 Bank of Northern Liberties v. Davis, 
 
 253, 398. 
 Bank of Oldtown v. Houlton, 127. 
 Bank of Pennsylvania v. Jacobs, 509. 
 
 V. McCalmont, 98. 
 Bank of Salinav. Henry, 431, 433, 442. 
 Bank of Tennessee v. Cowan, 468. 
 
XVI 
 
 TABLE OF CASES. 
 
 Bank of United States v. Dunn, 87, 93. 
 
 V. Macalester, 401. 
 
 V. Washington, 425. 
 Bank of Utica u. Hillard, 90, 94, 527. 
 
 V. Mersereau, 54,,140. 
 Bank of Woodstock v. Clark, 144. 
 Banks v. Clegg, 298. 
 
 V. Gidrot, 478. 
 
 V. State, 497. 
 Bantz V. Bantz, 191. 
 Barada v. Caundelet, 123. 
 Barbee v. Mason, 110. 
 Barber v. Goddard, 192, 269. 
 
 V. Merriam, 497. 
 
 V. State, 257. 
 
 V. Woods, 516. 
 Barclay v. Globe &c. Ins. Co., 127. 
 Bardwell v. Howe, 142. 
 Baring v. Reeder, 277. 
 
 V. Sliippen, 61. 
 Barker v. Ayers, 36. 
 
 V. Barker, 111. 
 
 „. Bell, 420. 
 
 V. Blount, 409. 
 
 ■V. Coleman, 479. 
 
 V. Comins, 485. 
 
 V. Dixcy, 281. 
 
 V. Kuhn, 181, 448. 
 
 V. McAuley, 283. 
 
 V. Prentiss, 87, 88, 92. 
 Barnard v. Flinn, 176. 
 Barnes v. Ball, 139. 
 
 V. Barber, 44. 
 
 V. Billington, 142. 
 
 V. Camack, 284. 
 
 V. Cole, 121. 
 
 V. Ingalls, 404, 504. 
 
 u. Martin, 285. 
 Barnett v. Troutman, 91. 
 
 u. School Directors, 124. * 
 
 Barney v. Cutler, 45. 
 
 V. Earle, 106, 115. 
 
 V. Newcome, 88. 
 Barnhill v. Kirk, 235. 
 Barrets v. Snowden, 94. 
 Barrett v. Carter, 73. 
 
 u. French, 131. 
 
 V. State, 531. 
 
 V. Williamson, 322. 
 Barrier v. Peychand, 114. 
 Barringer v. Barringer, 286. 
 Barron v. Cobleigh, 501. 
 Barrough v. Martin, 469. 
 Barrows v. Downs, 499. 
 Barry v. Sturdivant, 272. 
 
 V. Wilbourne, 131. 
 
 Barsons v. Brown, 401. 
 Bartholomew u. People, 19, 23, 315, 
 
 336. 
 Bartlett v. Hoyt, 395. 
 Bartlow v. Bond, 71. 
 Barton v. Bird, 530, 532. 
 
 V. Kane, 395, 404. 
 
 V. Morphes, 329. 
 
 .V. Fetherolf, 98. 
 Baskins v. Wilson, 93. 
 Bass V. Peevey, 52. 
 Bassham v. State, 417. 
 Bast V. Auspach, 270. 
 Bastin v. Carew, 398. 
 Batdorff v. Farmer's National Bank, 
 
 338. 
 Bate V. Hill, 372. 
 
 V. Eussell, 44, 45. 
 Bates V. Barber, 301, 334. 
 
 V. Cilley, 279. 
 
 V. Kempton, 72. 
 
 V. The Madison, 119, 199. 
 Bathdorf ;,■. Eckert, 531. 
 Batten v. State, 411, 497. 
 Battey v. Duxbury, 125. 
 Batthews v. Galindo, 274. 
 Bauerman v. Eademius, 128. 
 Bangher v. Culler, 46, 56. 
 Baugher v. Duphorn, 295. 
 Baum V. Clause, 21, 336. 
 Baxter v. Abbott, 192. 
 
 V. Boston &c. E. E. Co., 276. 
 
 V. Buck, 76. 
 
 V. Graham, 135. 
 
 V. Knowles, 284. 
 
 V. Leith, 226. 
 
 c. Eodman, 148. 
 Bay V. Gunn, 92. 
 Bayley v. Lloyd, 137. 
 Baylor v. Smithers, 54, 340. 
 Bazemore v. Wilder, 130. 
 Beach v. Cooke, 86, 212. 
 
 V. Covillaud, 298. 
 
 V. Fulton Bank, 421. 
 
 V. Packard, 75. 
 
 V. Sutton, 74. 
 
 V. Swift, 58. 
 Beadle v. Graham, 156. 
 Beak's E'x'rs. o. Birdsall, 356. 
 Beal V. Alexander, 235. 
 
 V. Finch, 40. 
 
 V. Nichols, 408, 417. 
 Beall V. Lynn, 300. 
 
 V. Ridgeway, 69. 
 
 V. ShauU, 242. 
 
 V. Territory, 63, 200. 
 
TABLE OF CASES. 
 
 XVll 
 
 Beam v. Sink, 82, 457. 
 Bean v. Bean, 51, 70. 
 
 </. Brackett, 62. 
 
 u. Jenkins, 119, 299. 
 
 V. Lane, 100. 
 
 f. Pearsall, 51, 113. 
 
 ■0. Smith, 55. 
 
 V. Walker, 203. 
 Beard v. Cowman, 109. 
 
 V. Eork, 481. 
 
 V. Morancy, 268. 
 Beardsley v. Foot, 13. 
 
 „. Wildman, 338. 
 Bearss v. Copley, 340, 503. 
 Beasley v. Bradley, 45. 
 Beasly v. State, 315. 
 Beatson v. Skene, 424. 
 Beatty v. Davis, 03. 
 Beaubien v. Cicotte, 347, 465. 
 Beauchamp v. Cash, 321. 
 
 V. State, 370. 
 Beaulieu v. Parsons, 408, 519. 
 Beaver v. Beaver, 144. 
 Bebee v. Tinker, 352. 
 Beclcley v. Freeman, 66, 146. 
 Bedell v. Cliase, 132. 
 
 u. Long Island R. R. Co., 481, 
 503. 
 Beohe v. Kaiser, 30. 
 Beebees, Ex parte., 517, 518, 521. 
 Beecher v. Denniston, 481. 
 Beekman v. Platner, 63. 
 
 V. Skaggs, 345. 
 Beer v. Ward, 30. 
 Beers v. Broome, 74. 
 Beggs V. Butler, 97, 130. 
 Belcher v. Cornier, 335. 
 Seldon V. Snead, 532. 
 Bell V. Bell, 63. 
 
 V. Chambers, 408. 
 
 V. Coiel, 283. 
 
 V. Cowgell, 65. 
 
 V. Drew, 61. 
 
 V. Jasper, 41. 
 
 V. Morrisett, 479. 
 
 u. Prewitt, 408. 
 
 V. Rinner, 328. 
 
 V. Thompson, 105. 
 
 u. Wilson, 91. 
 Bellamy v. Cains, 109. 
 Bellefontaine &c. R. R. Co. v. Bailey, 
 
 495, 505. 
 Bellinger v. People, 432. 
 Bellis, Be, 447. 
 Bells V. City of Ottawa, 503. 
 Belt V. Miller, 103. 
 
 Belts V. Jones, 137. 
 Bemis v. Becker, 321. 
 Benaway v. Congne, 391. 
 Benedict v. Browson, 55, 58. 
 
 V. City of Fond Du Lac, 502. 
 
 K. Hecox, 95. 
 
 V. Hosner, 362. 
 Benhan v. N. Y. &c. R. R. Co., 213. 
 Benior v. I'aquin, 97. 
 Benjamin v. Coventry, 29, 448. 
 
 V. Dinmick, 218. 
 Bennet v. Carter, 58. 
 Bennett v. Armstead, 154. 
 
 u. Burch, 410. 
 
 V, Clemence, 478. 
 
 V. Dowling, 58. 
 
 </. Fail, 479. 
 
 u. Frary, 235. 
 
 V. Quick, 134. 
 
 V. State, 12. 
 
 V. Williams, 49. 
 Bennifield v. Hypres, 285. 
 Benoist v. T)HThy, 62. 
 Benson v. Co.x, 205. 
 
 V. Griffin, 498. 
 
 V. McFadden, 480. 
 Bent V. Baker, 52, 55. 
 Bentley v. Bustard, 122. 
 
 V. Cooke, 267, 270, 274. 
 Benton v. Henry, 63. 
 Berdell r. Berdell, 373. 
 Berg V. Chicago &c. R'y Co., 320. 
 Bergan &c. Association v. Cole, 127. 
 Berge v. Rhinehart, 179. 
 Berkeley Peerage Case, 369. 
 Berkey j;. Judd, 394. 
 Bernasconi v. Fairbrother, 353. 
 Berner v. Wittnacht, 331. 
 Bernham v. Morrissey, 518. 
 Berrington v. Fortesque, 46. 
 Berry v. Hall, 92. 
 
 V. Jourdan, 464. 
 
 V. People, 346. 
 
 V. State, 473, 484. 
 
 V. Stephens, 189. 
 
 V. Stevens, 44. 
 Bersch v. State, 338. 
 Besson v. Cox, 206. 
 Belts V. State, 392. 
 Bevan v. Hayden, 180. 
 Beverly v. Brooke, 85. 
 Bevins v. Cline, 453. 
 Bickel V. Fasig, 20. 
 Bickley v. Commonwealth, 517. 
 Bidweil V. Astor Mutual Ins. Co., 384. 
 
 f. St. Louis &c. Ins. Co., 01. 
 
xvm 
 
 TABLE OF CASES. 
 
 Bierce v. Stocking, 498. 
 Bierly's Estate, 227, 267. 
 Bigelow V. Heyer, 96. 
 
 o. Smith, 87. 
 
 I/. Young, 421. 
 Bigham v. Carr, 52. 
 Bigler v. Eeyher, 4i8. 
 Biliin V. Bihin, 266, 288. 
 Bill V. Porter, 58, 106, 142. 
 
 V. Scott, 120. 
 
 !•. Stoll, 245. 
 
 V. Troy, 403. 
 Billeaudeau v. Keller, 186. 
 Billenger v. N. Y. Cent. R. E. Co., 
 
 495. 
 Billingsly v. Knight, 95. 
 Bills !,-. City of Otumwa, 489. 
 Bingham v. Lavender, 234. 
 Birch V. Eidgway, 508. 
 Bird's Case, 496. 
 Bird V. Cole, 98. 
 
 „. Com., 490, 500. 
 
 V. Davis, 266. 
 
 V. Hueston, 452. 
 
 V. Jones, 158. 
 
 V. State, 258. 
 Birdsall v. Dunn, 278. 
 Birely v. Staley, 395. 
 Birkett's Case, 378. 
 Birt V. Kershaw, 92. 
 Bishee v. Hall, 300. 
 Bisbing v. Graham, 281. 
 Bishop !;. State, 338. 
 
 V. Welch, 177. 
 Bissell I'. Camphell, 362. 
 
 V. Cornell, 368. 
 
 v. Hamlin, 206, 219. 
 
 V. Eussell, 421, 470. 
 
 V. "West, 482. 
 Bittir V. Keys, 141. 
 
 Bixby V. Montpelier &c. E. E. Co., 505. 
 Bixley v. Wormley, 179. 
 Black V. Black, 306. 
 
 V. Campbell, 107. 
 
 V. Coorgh, 424, 522. 
 
 V. Crain, 119. 
 
 V. Ellis, 367. 
 
 V. Goodman, 114. 
 
 V. Marvin, 106. 
 
 V. State, 313. 
 
 V. "Woodrow, 9. 
 Blackburn i'. Commonwealth, 290, 
 353. 
 
 V. State, 315. 
 Blackburne v. Hargreave, 516. 
 Blackerby v, Holton, 144. 
 
 Blackington v. Johnson, 407. 
 Blackledge v. Scales, 110. 
 Blackman v. Johnson, 477, 479. 
 Blackstock v. Leidy, 298. 
 Blackwell v. Hageman, 298. 
 
 ... State, 6, 7, 434, 436. 
 Blain v. Patterson, 269. 
 Blair v. Milwaukee &c. E. E. Co., 105. 
 
 .. Owlcs, 116, 131. 
 
 V. Seaver, 12. 
 Blaisdell v. Covvell, 74. 
 
 [;. Eaymond, 308. 
 BlakeV. Everett, 328. 
 
 V. Freeman, 109. 
 
 V. Graves, 269. 
 
 V. Irish, 52. 
 
 V. Jenkins, 188. 
 
 V. Ladd, 44. 
 
 V. Lord, 209. 
 
 V. Pilfield, 457. 
 Blakely v. Frazier, 231. 
 Blakey v. Blakey, 110, 345. 
 Blanc V. Forgay, 63, 65. 
 Blanchard v. Mann, 480.- 
 
 u. Hodgkiiis, 188. 
 
 V. Pratt, 319. 
 
 u. Eichley, 388. 
 
 V. Sprague, 29. 
 Blankman v. Vallejo, 320. 
 Blanton ;;. Miller, 35. 
 Blauchin v. Pickett, 186. 
 Blaufus V. People, 17, 19. 
 Bleecker v. Carroll, 517.. 
 Blen V. Bear River &c. Co., 126. 
 Blessing v. Hope, 410. 
 Blevins v. Pope, 395. 
 Bliss 11. Brainard, 531. 
 
 V. Franklin, 279. 
 
 V. Thompson, 51. 
 
 V. Wilbraham, 475. 
 Block V. Chase, 36. 
 
 V. The Trent, 33. 
 Blocker v. Barness, 12. 
 Blodgett &c. Co. V. Farmer, 503. 
 Blood r. Fairbanks, 160. 
 
 V. French, 192. 
 
 V. Hayman, 119. 
 
 i: Light, 504. 
 Bloodgood V. Jamaica, 124. 
 Blue, lie, 518. 
 Blue V. Kibby, 329, 333. 
 Bluitt V. State, 335, 474. 
 Blum V. Stafford, 53. 
 Blumenthal v. Eoll, 501. 
 Blunt V. State, 410. 
 
 c. Tunts, 447. 
 
TABLE OF CASES. 
 
 XIX 
 
 Boardman i\ Roger, 143. 
 
 Hoardman v. Woodman, 484, 491, 494. 
 
 Boas V. Hetzel, 06. 
 
 llobo V. Bostick, 97. 
 
 Bodies V. Lansing, 212. 
 
 Bodkins v. Taylor, 87, 94. 
 
 Bogert V. Bogert, 38, 300. 
 
 Boggs V. Thompson, 409. 
 
 Bogia V. Darden, 75. 
 
 Bogle V. Kreitzer, 332. 
 
 Bohannon v. State, 120, 154. 
 
 Bohua u. Taylor, 43. 
 
 Boise I'. M'AUister, 477. 
 
 Boisse I'. Dickson, 276. 
 
 Boissy V. Lacon, 63, 65. 
 
 Bon V. Vincent, 355. 
 
 Boland v. Greenville &c. R. R. Co., 147. 
 
 Bolen V. State, 252. 
 
 Boles V. State, 330. 
 
 Bolster u. Byrne, 178. 
 
 Bolton V. Smead, 112. 
 
 Bomberger v. Turner, 226. 
 
 Bomgarduer v. Andrews, 494. 
 
 Bond V. Brady, 70. 
 
 V. Carter, 142. 
 
 V. Dorn, 159. 
 
 V. Frost, 312. 
 Bone V. Hillen, 516. 
 Bonesteel v. Lynde, 520, 526. 
 Bonett V. Stowell, 275. 
 Bonnell v. Smith, .323. 
 Boomer v. Laine, 454. 
 Boon V. Nelson, 78. 
 
 V. Weathered, 330. 
 Boone v. Pelichet, 187. 
 Boorman v. Atlantic &c. R. R. Co., 
 
 527. 
 Booth V. Vanarsdale, 186. 
 Boothe V. State, 49. 
 Bork V. Norton, 116. 
 Borneman v. Sidlinger, 281. 
 Borroughs y. United States, 54. 
 Borton u. Borton, 308. 
 Boston &c. R. R. v. Dana, 364. 
 Boston &c. R. R. Corp. u. Old Colony 
 
 &c. R. R. Corp., 504. 
 Boswell V. Blaekman, 333. 
 Boteler v. Beall, 413. 
 Bothwell V. Dobbs, 167. 
 Botts V. Fitzpatrick, 102. 
 Bow V. Parsons, 13. 
 Bowen v. Burk, 101. 
 Bowers v. Hftle, 187. 
 
 V. People, 305. 
 Bowles V. Johnson, 513. 
 Bowlin V. Commonwealth, 28. 
 
 Bowling V. Commonwealth, 375. 
 
 V. Helen, 102, 501. 
 Bowman v. Norton, 448, 450. 
 
 V. Noyes, 44. 
 
 V. Stiles, 76. 
 Bowne v. Hyde, 98. 
 Boyd V. First &c. Bank, 340. 
 
 V. Lewis, 332. 
 
 V. Mclvor, 95. 
 Boydston v. Glltner, .498. 
 Boyer i'. Kendall, 72. 
 Boykin v. Boykin, 272. 
 
 ./. Smith, 156. 
 
 f . Watts, 231. 
 Boylan v. Meeker, 300, 486. 
 Boyle V. Arledge, 35. 
 
 V. Haughey, 271. 
 
 f. Wiseman, 4-36. 
 Boynton v, Kellogg, 329. 
 
 V. Turner, 78. 
 Bozeraan v. Browning, 158. 
 Brabbitts v. Chicago &c. R. R. Co., 
 
 504, 505. 
 Brackett v. Edgcrton, 481. 
 Bradbury v. Dougherty, 70. 
 Braddee v. Brownfield, 367. 
 Bradford v. Bush, 355. 
 
 V. Rice, 68. 
 
 V. Williams, 267. 
 Bradlee v. Neal, 44. 
 Bradley v. Couch, 120. 
 
 u. Goodyear, 32. 
 
 V. Kavanagh, 111, 
 
 V. Kent, 159. 
 
 V. Morris, 92. 
 
 V. Nitick, 220. 
 
 1'. Patton, 155. 
 
 V. Ricardo, 321, 356. 
 
 V. United States, 152. 
 
 V. Veazie, 523. 
 
 V. West, 200. 
 Bradshaw v. Combs, 41, 172. 
 Bradsher v. Brooks, 223. 
 Brady v. Brady, 192. 
 
 V. Mc Williams, 362. 
 
 V. Reed, 228. 
 Bragg V. Clark, 155. 
 
 V. Colwell, 510. 
 Brague v. Lord, 211, 214. 
 Braley v. Braley, 474. 
 Braine v. Spalding, 64. 
 Bralich v. People, 249. 
 Braman v. Bingham, 393. 
 Bramstein v. Crescent Mutual Ins. 
 
 Co., 187. 
 Branch v. Levy, 208, 357. 
 
XX 
 
 TABLE OF CASES. 
 
 Branch Bank v. Coleman, 98. 
 Brand v. Abbott, 75. 
 u. Ackermann, 89. 
 V. Brand, 447. 
 Brander v. Lum, 187. 
 Brandigee v. Hale, 146. 
 Brandon v. People, 250, 444. 
 Brantly v. Swift, 500. 
 Bratton v. Clendenin, 531. 
 Brann v. Campbell, o67. 
 Braxton v. Bloom, 187. 
 Braydon v. Goulman, 386. 
 Brazier's Case, 6. 
 Bredon v. Mutual Savings Institution, 
 
 127. 
 Breed !■. Gove, 266. 
 Breen v. People, 308. 
 Brebm v. Gt. West. R. B. Co., 510. 
 Breidert v. Vincent, 420. 
 15reitenbach i'. Houtz, 90. 
 Breneman's Estate, 227. 
 Brennan v. People, 356, 476. 
 Brent v. Green, 102. 
 Brett V. Catlin, 363. 
 Brewer v. Crosby, 338. 
 ... Ferguson, 283. 
 V. Murray, 138. 
 u. Porch, 351. 
 Brewster v. Sterrett, 108. 
 Brice v. Hamilton, 231. 
 Brickner v. Ligbtner, 484. 
 Bridge v. M'Lane, 101. 
 
 V. Wellington, 296, 298. 
 Bridgeford i\ City of Lexington, 100. 
 Bridger v. Walker, 311. 
 Bridges v. Armour, 29, 38, 67. 
 V. Bell, 56. 
 V. Hyatt, 61, 212. 
 c. Nicholson, 169. 
 V. Sheldon, 529. 
 Bridgewater v. Plymouth, 458. 
 Brigg V. Coleman, 531. 
 Briggs V. Matsell, 518, 524. 
 V. Moore, 92. 
 V. Morgan, 497. 
 u. Smith, 455. 
 V. Taylor, 339. 
 V. Titus, 268. 
 Brindle v. M'llvaine, 284. 
 Briston v. Sectueville, 500. 
 Bristor v. Bristor, 177. 
 Brite v. State, 345. 
 Britton y. Andrews, 110. 
 Broad v. Pitt, 452. 
 Broadbent v. State, 191. 
 Broadhead v. Jones, 78. 
 
 Brock r. Milligan, 12, 13. 
 
 V. State, 328. 
 Brockman v. Angler, 518. 
 Brodnax v. Brodnax, 05. 
 Brolasky v. Miller, 86, 129. 
 Brolley v. Lapham, 355. 
 Bronson v, Bronson, 286. 
 Brook V. Francis, 452. 
 Brookbank v. State, 370. 
 Brooks V. Crosby, 295. 
 
 V. Goss, 343. 
 
 V. Intyre, 194. 
 
 v. M'Kinney, 58. 
 
 u. Tarbell, 192. 
 
 V. Walker, 186. 
 
 V. Weeks, 353. 
 Brookshire v. Brookshire, 531. 
 Brough !-. Adcock, 08. 
 Brown v. Babcock, 99, 116. 
 
 V. Barrington, 267. 
 
 (.. Bellows, 353, 354. 
 
 t-. Brightman, 192. 
 
 V. Brown, 43, 148, 203, 215, 443, 
 497. 
 
 t. Buckley, 354. 
 
 V. Burke, 58. 
 
 V. Burrus, 44, 407, 420. 
 
 V. Campbell, 368. 
 
 V. Corey, 482. 
 
 V. Crockett, 75. 
 
 V. Downing, 131. 
 
 V. Giles, 380. 
 
 r. Hicks, 76. 
 
 V. Hoburger, 481. 
 
 ( . Howard, 45. 
 
 < . Huffard, 495. 
 
 I'. Hiird, 172. 
 
 7-. Johnson, 57, 143. 
 
 ,-. Lester, 26, 479. 
 
 (.. Luehrs, 332. 
 
 V. Marsh, 40. 
 
 ( . Mooers, 307. 
 
 I-. Moore, 530. 
 
 V. O'Brien, 52, 57. 
 
 V. Osgood, 355. 
 
 V. Parkinson, 72. 
 
 V. Payson, 447. 
 
 V. People, 337. 
 
 V. State, 6, 17, 49, 257, 293, 307. 
 409, 465. 
 
 V. Street, 97. 
 
 V. Wood; .355, 453. 
 Browne i: Molliston, 4H. 
 Browning t-. Cooper, 119. 
 Brubacker ;•. Taylor, 358. 
 Bruce r. Matthews, 276. 
 
TABLE OF CASES. 
 
 x:u 
 
 Bruce v. Simms, 73. 
 Brumagin v. Bradshaw, 406. 
 Brunner v. Wallace, 227. 
 Brush V. Scribner, 500. 
 
 II. Wilkins, 600. 
 Bruton v. State, 361. 
 Bryan v. Tooke, 169. 
 Bryant v. Hunter, 30. 
 
 V. Ritterbush, 92, 97. 
 
 V. Tidgenell, 361. 
 
 V. Watriss, 92. 
 Bubier v. Pulsifer, 94. 
 Buchanan v. Atchison, 402. 
 
 V. Buchanan, 129. 
 Buchraan v. State, 524, 532, 533. 
 Buck V. Appleton, 88, 92. 
 
 t. Ashbrook, 276. 
 
 I'. Beekly, 173. 
 
 V. Hermance, 55. 
 Buckholder v. Ludlam, 239. 
 Buckingham v. Andrews, 210, 219. 
 
 u. Barnum, 163. 
 
 V. Clary, 118. 
 
 V. Wesson, 197. 
 Buckley v. Buckley, 408. 
 
 V. Manife, 159. 
 Bucklin v. State, 333. 
 Buukmaster v. Kelley, 63. 
 Buckminster v. Perry, 484. 
 Bucknam v. Perkins, 188, 272. 
 Endlong v. Van Nostrand, 395. 
 Buffum V. Harris, 490, 502. 
 
 u. New York &c. R. R. Co., 482. 
 Buie V. Carver, 364. 
 
 V. Wooten, 142. 
 Bulen V. Granger, 407. 
 Bulkley v. Dayton, 137, 143. 
 
 V. Storer, 55. 
 Bull V. Loveland, 424, 526. 
 
 V. Strong, 43, 192. 
 Bullard v. Lambert, 410. 
 
 V. Pearsall, 354. 
 BuUen v. Arnold, 300. 
 BuUiner v. People, 391, 392. 
 Bullitt V. Stewart, 58. 
 Bullock V. Koon, 389. 
 Bumbury v. Bumbury, 448. 
 Bunker v. Bennett, 285. 
 
 V. Gilmore, 301. 
 Bunnell v. Butler, 368. 
 Burd V. M'Gregor, 112. 
 
 w. Roes, 121. 
 Burden v. People, 257. 
 Burdette v. Burdette, 285. 
 Burdick v. Hunt, 82, 509. 
 Burdine v. Grand Lodge, 125. . 
 
 Burger v. Northern Pacific R. K. Co., 
 
 481. 
 Burgess v. Lane, 294. 
 Burk i: State, 6. 
 Burke, Be, 218. 
 
 u. Clarke, 134. 
 
 V. Miller, 412. 
 
 V. Savage, 278. 
 
 o. Shain, 139. 
 
 V. State, 394. 
 Burkhalter v. Edwards, 355. 
 Burkholder v. Lapp, 112. 
 Burleigh v. White, 189. 
 Burlen v. Shannon, 270. 
 Burlingham v. Deyer, 116. 
 Burlington Bank v. Owen, 181. 
 
 V. Fenimore, 124. 
 Burnett v. Garnett, 186. 
 Burney v. Ball, 465. 
 Burnham v. Ayer, 506. 
 
 u. Hatfield, 80. 
 
 V. Morrissey, 517, 524, 520. 
 Burns t;. Howard, 532. 
 
 V. Taylor, 41, 70. 
 Burns' Trial, 374, 439. 
 Burrell v. Bull, 268. 
 
 V. State, 367. 
 Burritt v. Silliman, 110. 
 Burroughs v. Thorne, 110. 
 Burrows v. Reeves, 55. 
 
 V. Shultz, 61. 
 Bursou V. Huntington, 9. 
 Burt V. State, 374. 
 Burton v. Hind, 51. 
 
 V. Plummer, 460, 463, 464, 465. 
 
 V. Stamper, 143. 
 Burtus-u. Tisdail, 327. 
 Busby V. Scott, 235. 
 Bush V. Commonwealth, 15. 
 
 V. Jackson, 496. 
 
 V. Magee, 116. 
 Bushee v. Surles, 223. 
 Bushel V. Barrett, 18. 
 BushnpU V. City &e. Bank, 132. 
 Bussy V. Ady, 62. 
 Butcher v. Coats, 520. 
 
 V. Forman, 107. 
 Butler u. Benson, 470. 
 
 c. Butler, 296, 297. 
 
 o. Mehrling, 481. 
 
 V. Moore, 452. 
 
 u. Patterson, 103. 
 
 u. State, 338, 347. 
 
 V. Stewart, 186. 
 
 V. St. Louis Life Ins. Co., 484, 
 493. 
 
XXll 
 
 TABLE O? CASES. 
 
 Butler V. Trusloe, 370. 
 
 a. Tufts, 133, 298. 
 
 V. Warren, 65. 
 Butt V. Butt, 76. 
 Buttervvorth ik Pecare, 407. 
 Buttrick v. Gilman, 403. 
 Butts V. Swartwood, 12. 
 Buxton V. Somerset Potter's Works, 
 
 504. 
 Bj'ars V. GrifBn, 144. 
 Byass v. Smith, 433. 
 
 V. Sullivan, 433, 434. 
 Byle V. Oustatt, 173. 
 Byrd v. State, 287. 
 Byrne v. Becker, 70. 
 
 V. McDonald, 192. 
 C. 
 Cadbury v. Nolen, 133. 
 Cadwell v. Meek, 56, 113. 
 Cady V. Norton, 388. 
 Cahoon v. King, 504. 
 Cain V. Henderson, 73. 
 
 t. Loeb, 187. 
 Gake v. Lewis, 117. 
 Calderwood v. Calderwood, 238. 
 Caldwell v. Cole, 108. 
 
 i.: M'Cortney, 118. 
 
 c. Wentworth, 114. 
 Calhoun v. Wright, 39. 
 Calkins v. Lee, 447. 
 
 v. Packer, 96. 
 
 V. State, 506, 507, 510. 
 Call V. Byram, 276, 484. 
 Callanan v. Shaw, 319. 
 Callaway i'. Craig, 100. 
 Calvert v. Plower, 344. 
 Cambria Iron Co. u. Toombs, 39. 
 Cameron v. Blackman, 403, 467. 
 
 V. Fay, 276. 
 
 V. Paul, 99. 
 Camp Point Mfg. Co. v. Ballow, 490. 
 Campan v. Bewey, 407, 408. 
 
 i,. North, 451. 
 Campbell i'. Chace, 452. 
 
 V. Commonwealth, 25, 314. 
 
 V. Dalhousie, 520, 527. 
 
 V. Galbreath, 129. 
 
 V. Hood, 44. 
 
 V. Johnston, 526. 
 
 V. Mayes, 180. 
 
 V. McHarg, 130. 
 
 V. New England &c. Ins. Co., 
 320. 
 
 V. Patterson, 364. 
 
 V. State, 3, 20, 336, 419, 428, 479. 
 
 V. Thompson, 55, 121. 
 
 Campbell ,-. Tousey, 79. 
 
 V. Tremlow, 274. 
 
 V. Western, 455. 
 Canada v. Curry, 336. 
 Canandarqua Academy v. McKechnie, 
 
 57. 
 Canfield v. Ball, 78. 
 Cannady v. Lynch, 3, 5. 
 Cannell v. Crawford, 101. 
 
 V. Phojnix Ins. Co., 489, 503. 
 Canning v. Pinkham, 123. 
 Cannon v. Campbell, 105. 
 
 V. Jones, 117. 
 
 V. Morris, 223. 
 
 V. Van Wagner, 207. 
 
 V. Wliite, 133. 
 Cantey v. Blair, 117. 
 
 r. Whitaker, 231. 
 Canton v. State, 80. 
 Canty v. Sumter, 30, 100. 
 Capehart i:. Huey, 112. 
 Caperton r. Callison, 270. 
 Captill V. Verhack, 450. 
 Caraday v. Johnson, 181. 
 Cardwell v. Sprigg, 77. 
 Carleton v. Whitaker, 91. 
 Carlisle v. Burley, 79. 
 
 V. McNamara, 188. 
 Carlos V. Brook, 334. 
 Carlton v. Mays, 242. 
 
 ti. Pierce, 411. 
 Carlyle v. Plumer, 396. 
 Carman v. Foster, 53. 
 
 V. White, 67. 
 Carmichael, Re, 407. 
 Came v. Litchfield, 441. 
 Games v. Piatt, 398. 
 Carney v. Gleissner, 269. 
 Carpenter r. Ambrosan, 393. 
 . V. Blake, 492, 493. 
 
 V. Crane, 49. 
 
 V. Dame, 283, 328. 
 
 0. Ginder, 300. 
 
 u. Moore, 269. 
 
 i. Nixon, 21. 
 
 V. Soule, 215. 
 
 V. Taylor, 530. 
 
 V. Wait, 503. 
 
 V. Ward, 346, 410. 
 
 V. White, 286. 
 Carpmael v. Powis, 448. 
 Carr v. Hilton, 71. 
 
 V. Moore, 328. 
 
 f. Northern Liberties, 473. 
 Carrington v. Holabird, 65, 299. 
 Carroll v. Charter, 320. 
 
TABLE OF CASES. 
 
 XXlll 
 
 Carroll v. Corn, 376. 
 
 c. Darvis, 210. 
 
 V. M'Whorter, 136. 
 
 V. Meeks, 92. 
 
 V. iathkiller, 298. 
 
 B. State, 48. 
 
 ■J. Welch, 482. 
 Carter v. Baker, 510. 
 
 V. Beals, 403. 
 
 V. Champion, 86. 
 
 V. Covenaugh, 330. 
 
 V. Graves, 78, 295. 
 
 ... Hale, 239. 
 
 o. Krise, 249. 
 
 „. People, 367. 
 
 V. Pinchbeck, 121. 
 
 V. State, 7, 8. 
 
 u. Taylor, 269. 
 
 V. Thurston, 483. 
 
 V. Trueman, 140. 
 
 V. Woods, 531. 
 Cartwright v. Cartwright, 500. 
 
 V. State, 82. 
 
 p. Williams, 142. 
 Carver v. Soutliain, 322. 
 Case V. Colter, 280. 
 
 V. Reeve, 113. 
 Cason V. Rohson, 58. 
 Caspar v. O'Brien, 393. 
 Cass V. State, 102. 
 Cassidy v. McKenzie, 53. 
 Castner v. Sliker, 479. 
 Caston V. Ballard, 69. 
 Castor V. Bavington, 408. 
 Catawissa R. R. Co. v- Armstrong, 121. 
 Cates V. Hardacre, 432. 
 
 v. Noble, 65. 
 
 V. Wacter, 144. 
 Caton w. Lenox, 61. 
 Catt V. Howard, 470. 
 Caulfield v. Sanders, 62. 
 Causlee v. Wharton, 155. 
 Cave V. Burns, 154. 
 Central &c. R. R. Co. v. Hines, 144. 
 
 V. Twenty-third St. R. R. Co., 527. 
 Centr. Nat. Bank v. Arthur, 526. 
 Central R. R. Co. i'. Kelly, 483. 
 
 V. Mitchell, 492, 502. 
 
 I). Papot, 167. 
 
 V. Rockafellow, 12. 
 Chadwick v. Chadwick, 195. 
 
 u. Cornish, 196. 
 
 i>. Tonner, 216. 
 Chaffee v. Jones, 91. 
 
 c. Taylor, 505. 
 
 V. Thomas, 64. 
 
 Chaffee v. United States, 469. 
 Chaires v. Brady, 473. 
 Chalmers ;;. Chalmers, 37. 
 
 V. Melville, 521. 
 Chamberlain, Ex parte, 520. 
 Chamberlain's Case, 516. 
 
 V. Gorham, 35. 
 
 V. People, 272. 
 
 V. Sands, 351, 463. 
 
 >j. Smith, 134. 
 
 V. Willson, 443. 
 Chamberlin !■. Chamberlin, 71. 
 
 C-. Wilson, 432; 439. 
 Chambers v. Hill, 194, 402. 
 
 a. People, 314, 315. 
 
 V. Spencer, 283. 
 Chamness v. Chamness, 482. 
 Champ V. Commonwealth, 351. 
 Champlim v. Seeber, 219. 
 Chance v. Hine, 296, 298. 
 
 I'. Indianapolis &c. R. R. Co., 331, 
 Chandler v. Allison, 411. 
 
 V. Commonwealth, 247. 
 
 V. Home, 392. 
 
 V. Hough, 306. 
 
 V. Mason, 94. 
 
 V. Morton, 94, 98. 
 Chaney v. Moore, 283. 
 Chanoine v. Fowler, 500. 
 Chapel V. White, 119. 
 Chapin v. Siger, 114. 
 
 w. Tapham, 461. 
 Chaplain ;;. Briscoe, 526. 
 Chapline v. Keedy, 293. 
 Chapman v. Andrews, 105. 
 
 V. Clark, 230. 
 
 V. Coffin, .341. 
 
 ./. Cooley, 367. 
 
 u. Graves, 44. 
 Chappell V. Smith, 447. 
 
 V. State; 257,327. 
 Charles, Ex parte, 68. 
 
 V. Malott, 177. 
 Charlesworth v. Williams, 147. 
 Charlton v. Unis, 339. 
 Chase v. Blodgett, 20. 
 
 </. Breed, 192. 
 
 V. Evoy, 160. 
 
 V. Irvin, 228. 
 
 17. Lovering, 45. 
 Cheatham v. State, 21. 
 Cheeney v. Arnold, 395. 
 Cheetham v. Ward, 137. 
 Chelton v. State, 338. 
 Chenowith v. Fielding, 30, 39. 
 Cherry v. McCorkle, 58. 
 
XXIV 
 
 TABLE OF CASES. 
 
 Cherry v. State, 403, 52t. 
 Chesley v. Chesley, 280, 340. 
 
 V. St. Clair, 66. 
 Chessman v. Merkel, 482, 499. 
 Chester r. Bower, 392. 
 
 ( . Rockingham, 124. 
 
 V. State, 306. 
 Cheswell r. Eastham, 75. 
 Cheyne r. Koops, 137. 
 Chiapella v. Brown, 462. 
 Chicago &c. R. R. Co. ... Adler, 464. 
 
 V. Bert, 328. 
 
 V. Boger, 319. 
 
 6. Dunning, 516, 517, 518. 
 
 r. George, 477, 479. 
 
 0. Hutchins, 121. 
 
 1. Northern &c. R. R. Co. 408. 
 V. Triplet, 322. 
 
 Child V. Chamberlain, 45. 
 
 Childrens v. Saxliy, 32. 
 
 Children's Aid Society v. Loveridge, 
 
 207. 
 Childress v. Miller, 115. 
 • Childs V. State, 331. 
 Choice V. State, 484, 485. 
 Choteau v. Thompson, 300. 
 Chouteau v. Searcy, 296. 
 Christian v. Commonwealth, 247. 
 
 .. Coombe, 339. 
 
 V. United States, 33. 
 Christie v. Home, 199. 
 Christman v. Siegfried, 109. 
 Christy v. Christy, 531. 
 
 r. Clarke, 274. 
 
 V. Smith, 11-5. 
 Chunot V. Larson, 278, 293. 
 Chur V. Keckeley, 97. 
 Church V. Dickinson College, 142. 
 
 o. Hampton, 108. 
 
 I'. Howard, 219. 
 
 V. Hubbart, 498. 
 
 V. Perkins, 463. 
 Churchill v. Bailey, 104. 
 
 V. Corker, 448. 
 
 V. Suter, 87, 90, 94. 
 Cincinnati v. Wood, 123. 
 Cincinnati &c. Ins. Co. t. May, 475, 
 
 495. 
 Cincinnati &c. R. R. Co. v. Smith, 505. 
 Cinnamond u. Greenlee, 106. 
 Citizens' Bank u. Nantucket Steam- 
 boat Co., 142. 
 City Bank v. Young, 349. 
 City Bank of Brooklyn v. McChes- 
 
 ney, 105, 219. 
 City Bank of Macon v. Kent, 306, 335. 
 
 City Council v. England, 137. 
 V. Haywood, 120, 296. 
 
 0. King, 126. 
 V. Sibley, 120. 
 V. "Weikman, 52. 
 
 City of Chicago v. McGiven, 487, 489. 
 City of Indianapolis v. Scott, 502. 
 City of New York v. Price, 206. 
 City of Washington, The, 490, 504. 
 Clackner v. State, 366. 
 Clagett r. Easterday, 489, 504. 
 
 V. Hall, 37, 132. 
 Clague ('. Hodgson, 503. 
 Clanccy's Case, 18. 
 Clapp i-. Fullerton, 484, 483. 
 
 ,-. Hanson, 94, 97. 
 
 V. Mandeville, 52. 
 
 V. Wilson, 365. 
 Clardy v. Callicoate, 235. 
 Clare v. Stewart, 215. 
 Clark V. Bailey, 330. 
 
 V. B.aird, 482. 
 
 c. Bell, 168. 
 
 u. Bigelow, 403. 
 
 V. Bond, 367. 
 
 ^•. Boyd, 516. 
 
 1 . Brown, 294. 
 
 u. Burnside, 109. 
 
 V. Clark, 346. 
 
 V. Detroit Locomotive Works, 
 
 504. 
 v. Eield, 457, 458. 
 f. Freeman, 505. 
 f. Gordon, 70. 
 V. Gridley, 401. 
 V. Johnson, 142. 
 V. Kingsland, 64. 
 c. Reese, 427, 428. 
 !■. Rockland Water Power Co., 
 
 482. 
 ( . Rowling, G8. 
 V. Smith, 209. 
 
 V. Southern &c. R. R. Co., 138. 
 ( , Spence, 33. 
 V. State, 250, 484, 498. 
 V. Vorce, 79, 468. 
 c. Watson, 70. 
 V. Willett, 504. 
 Clarke v. Bruce, 491. 
 V. Hajl, 19, 20. 
 V. Malony, 46. 
 V. Recce, 437. 
 V. Robinson, 52. 
 V. State, 28. 
 
 !/. Van Riemsdyk, 38, 41. 
 V. Wyburn, 41. 
 
TABLE OF CASES. 
 
 XXV 
 
 Clarkson v. Carter, 107. 
 Clary v. Clary, 484. 
 Clasen v. Milwaukee, 502. 
 Claycomb j. Butler, 50. 
 Clayea v. Ferris, 419. 
 Clealand r. Huey, 79. 
 Cleave r. Jones, 447. 
 ClGgg V. Fields, 501. 
 Clement, The, 49.3. 
 
 V. Bixler, 144. 
 
 V. Brooks, 427, 428. 
 
 V. Cureton, 476. 
 
 V. Diirgin, 109. 
 
 V. Spear, 458. 
 
 V. State, 427. 
 
 V. Wafer, 55. 
 Clendaniel i;.* Hastings, 42. 
 Cleverly v. McCuUough, 52. 
 Cleveland v. Covington, 117. 
 
 V. Hughes, 176. 
 Cleveland &c. R. K. Co. v. Ball, 482, 
 
 483. 
 Clevinger v. Curry, 305. 
 
 V. Reimar, 130. 
 Clifford V. Burton, 278. 
 
 V. Hunter, 407. 
 Clift V. Shockley, 177. 
 Clifton V. Bogardus, 70. 
 
 1^. Sharpe, 61. 
 Cline V. Little, 106. 
 Clinton v. Estes, 133. 
 
 V. Howard, 480. 
 
 ». State, 345. 
 Close V. Olney, 442. 
 Clough V. Patrick, 478. 
 
 V. State, 460, 464, 475. 
 Clouse V. Elliott, 276. 
 Clubh V. State, 277, 290. 
 Coalter v. Bryan, 110. 
 Coate V. Coate, 78, 154. 
 Coats V. People, 312. 
 Cobbt). Baldwin, 61. 
 
 V. Edmondson, 270. 
 Cobbett V. Kilminster, 508. 
 Coble V. State, 336. 
 Coburn v. Odell, 431, 443. 
 Cochran v. Almack, 226. 
 
 V. Amnion, 45. 
 
 V. Amsden, 349. 
 
 a. Brown, 527. 
 
 V. Cunningham, 106. 
 
 V. Miller, 404. 
 
 V. McTeague, 144. 
 Cockrill V. Hobson, 89. 
 Cody V. Cody, 107. 
 CofSn V. Anderson, 370. 
 
 Coflin V. Vincent, 460, 463. 
 Coghill t'. Boring, 63, 133. 
 Cohea v. State, 377. 
 Coit V. Bishop, 297. 
 
 V. Owen, 67. 
 Cokely v. State, 345, 408. 
 Colclough V. Rhodus, 420. 
 Cole V. Blunt, 455. 
 
 ^. Cole, 20, 53. 
 
 c. Hawkins, 529. 
 Coleman v. Chester, 231. 
 
 V. Commonwealth, 3. 
 
 V. Doe, 26. 
 
 V. Frazier, 101. 
 
 V. Tebbetts, 67. 
 
 V. Wise, 53, 87. 
 
 V. Wolcott, 35. 
 Coles V. Perry, 320. 
 Colgin V. Redman, 67, 131, 154. 
 
 V. State Bank, 118. 
 Collier v. Leach, 108. 
 
 u. Simpson, 492. 
 
 <,-. State, 25, 48, 49, 289. 
 
 v. Wenner, 212, 219. 
 Collins V, Creditors, 41. 
 
 -. Ellis, 55. 
 
 a. Flowers, 108. 
 
 V. Godefroy, 532, 533. 
 
 V. Johnson, 422. 
 
 V. Knapp, 211. 
 
 I,. Lester, 113. 
 
 ,.. Mack, 275, 449, 451. 
 
 V. McElroy, 362. 
 
 V. People, 375, 376. 
 
 V. Smith, 113. 
 Colston V. Nichols, 299. 
 Coltart V. Laughinghouse, 54. 
 Columbia v. Harrison, 462. 
 Columbia Coat Co. v. Fox, 88. 
 Columbian Manuf. Co. v. Dutch, 43. 
 Columbus Co. u. Dayton Co., 159. 
 Combs V. Bateman, 300. 
 
 V. Bradshaw, 173. 
 Comins v. Hetfield, 215. 
 Commercial &c. Bank v. Lum, 91. 
 Commercial Bank v. Hughes, 53, 295, 
 296. 
 
 V. Routh, 187. 
 
 V. Whitehead, 98. 
 
 V. Wood, 58. 
 Commissioners of Shawnee County v. 
 
 Ballinger, 531. 
 Commonwealth v. Bachelor, 12, 13, 14. 
 
 „. Baird, 124. 
 
 V. Bannon, 524. 
 
 V. Bonner, 444. 
 
XXVI 
 
 TABLE OF CASES. 
 
 Commonwealth v. Bosworth, 377. 
 u. Boynton, 379. 
 u. Braynard, 438, 439. 
 V. Brooks, 376. 
 r. Brown, 247, 497. 
 V. Burke, 14. 
 J'. Buzzell, 16, 346. 
 V. Carey, 7. 
 V. Carter, 517. 
 u. Choate, 490. 
 o. Churchill, 330. 
 V. Crans, 524. 
 V. Curtis, 444. 
 V. Dame, 21. 
 V. Donahue, 353. 
 u. Dorsey, 480. 
 V. Downing, 314. 
 II. Drake, 377. 
 o. Easland, 290. 
 V. Eastman, 47. 
 6. Farley, 9. 
 V. Farrar, 346. 
 I'. Feeley, 18, 529. 
 ... Flohr, 291. 
 u. Ford, 379, 460, 404. 
 V. Fox, 470. 
 V. Galavan, 388. 
 V. Gallagher, 336. 
 u. Gannon, 287. 
 V. Glover, 379. 
 V. Gordon, 291. 
 V. Gore, 53. 
 V. Gorham, 308, 335. 
 V. Grant, 312. 
 V. Gray, 372. 
 V. Green, 20, 296. 
 V. Griffin, 452, 453. 
 V. Haley, 466. 
 V. Hall, 335. 
 V. Hargesheimer, 120. 
 V. Harlow, 254. 
 V. Hill, 6, 80, 81. 
 II. Holmes, 375, 377. 
 c. Howe, 436. 
 u. Hudson, 352. 
 c. Hunt, 344. 
 V. Hutclienson, 7. 
 V. Hutchinson, 98. 
 V. Ingraham, 366. 
 V. Jailer, 291. 
 V. Jeffs, 460, 470. 
 V. Jenkins, 370. 
 V. Keith, 18. 
 V. Kennon, 348. 
 V. Kimball, 435. 
 V. Knapp, 336. 
 
 Commonwealth v. Lamherton, 348. 
 
 I . JLaiinan, 444, 465. 
 u. Lawler, 334. 
 
 V. Lenox, 248. 
 
 V. Lyden, 406. 
 
 V. Maloney, 254. 
 
 V. Hansen, 289. 
 
 V. Marsh, 44, 48. 
 
 ^. McEwen, 288. 
 
 V. McKee, 117. 
 
 V. Mead, 81, 82, 340. 
 
 V. Merril, 101. 
 
 V. Moore, 64, 330, 333. 
 
 V. Morgan, 444. 
 
 V. Morrow, 359. 
 
 V. Moulton, 55. 
 
 V. Moyer, 448. • 
 
 V. Mullen, 444. 
 
 V. MuUins, 494. 
 
 V. Murphy, 21, 289, 330, 333. 
 
 V. Murry, 337. 
 
 V. Newton, 518. 
 
 V. Nichols, 444. 
 
 V. Nickerson, 419. 
 
 u. Ohio &c. R. R. Co., 21, 120. 
 
 V. Parker, 340, 373. 
 
 II. Peck, 98, 99. 
 V. Pollard, 373. 
 V. Pope, 480. 
 
 V. Pratt, 443. 
 
 V. Price, 443, 445. 
 
 V. Putnam, 310. 
 
 V. Read, 99. 
 
 V. Reid, 277, 286, 289, 390. 
 
 V. Reynolds, 256, 518. 
 
 V. Rice, 497. 
 
 V. Rich, 498. 
 
 V. Roberts, 523. 
 
 V. Robinson, 290. 
 
 V. Rogers, 18, 3.32. 
 
 11. Sacket, 525. 
 
 V. Scott, 254. 
 
 II. Shaw, 437, 438. 
 
 V. Shepherd, 273. 
 
 V. Smith, 13, 47, 80. 
 
 V. Snell, 51, 98. 
 
 V. Sparks, 291. 
 
 V. Starkweather, 351. 
 
 V. Stebbins, 324. 
 
 V. Sturtevant, 474, 478, 480. 
 
 u. Thrasher, 398. 
 
 V. Thurston, 424. 
 
 V. Timothy, 480. 
 
 ... ToUiver, 444. 
 
 u. Waite, 98, 299. 
 
 V. Welch, 287. 
 
TABLE OF CASES. 
 
 XXVU 
 
 Commonwealth v. Welsh, 351. 
 
 V. Willard, 427. 
 
 V. Williams, 478, 531. 
 
 V. Wilson, 417, 419, 486. 
 
 V. Winnemore, 12, 14. 
 
 V. Wood, 531. 
 
 V. Wright, 316. 
 
 o. Wyman, 15. 
 Compton «. State, 288. 
 Comstock V. Hadlyme, 110, 128. 
 
 u. Hier, 212, 219. 
 
 u. Paic, 66. 
 
 V. Ray ford, 317. 
 Concord Bank v. Rogers, 91. 
 Condiut V. Wood, 205. 
 Congar v. Galena &c R. R. Co., 408. 
 Conger v. Bean, 180. 
 Conley v. Meeker, 333. 
 Connecticut v. Bradish, 124. 
 Connelly v. Childs, 114, 133. 
 
 V. Dunn, 173. 
 Conner v. State, 390. 
 Connett v. Hamilton, 518. 
 Connolly v. Straw, 64. 
 Connor v. Bradey, 88, 424. 
 Conover v. Bell, 424, 525. 
 Conrad v. Griffey, 370. 
 Conrey v. Harrison, 187. 
 Consolidated Real Estate &c. Co. v 
 
 Cahow, 500. 
 Continental Ins. Co. ;■. Horton, 481. 
 Converse v. Cock, 219.' 
 
 V. McKec, 70. 
 Conway v. Clinton, .393. 
 Conwell V. Smith, 37. 
 Conyers v. Field, 338. 
 Cook V. Brown, 85. 
 
 v. Cook, 286. 
 
 V. Corn, 4,32. 
 
 V. Grange, 284. 
 
 !/. Grant, 136. 
 
 V. Lyon, 119. 
 
 V. Miller, 331. 
 
 V. Mix, 296. 
 
 u. Patterson, 154. 
 
 V. State, 498. 
 
 V. Territory, 83. 
 Cooke V. Cooke, 112. 
 
 V. Curtis, 370. 
 
 V. England, 504. 
 
 V. Lloyd, 273. 
 Cookendorfer v. Preston, 101. 
 Cool V. Snover, 465. 
 C'ooley V. Norton, 338. 
 Coon V. Nock, 97. 
 Cooper V. Bakeman, 118. 
 
 Cooper V. Cent. E. R. Co., 504. 
 
 V. Cranberry, 74, 148. 
 
 V. Ord, 276. 
 
 V. Sisters of Providence, 126. 
 
 V. State, 19, 22, 460, 473, 474, 490. 
 Coopwood V. Foster, 37, 43. 
 Cooth V. Jackson, 363. 
 Cope V. Cope, 272. 
 Copons V. Kauffman, 269. 
 Copp V. Upham, 424. 
 Corbett v. Gibson, 527. 
 Corby v. Weddle, 510. 
 Cordery v. Hughes, 276. 
 Corgan v. Frew, 99. 
 Cornelius v. Commonwealth, 289, 400. 
 
 V. State, 290, 338. 
 Cornell v. Barnes, 245. 
 
 ^. Cornell, 214. 
 
 V. Vanartsdalen, 79, 282. 
 Corning v. Burden, 504. 
 
 V. Walker, 217. 
 Cornish v. Cornish, 286. 
 
 u. Farm Buildings Ins. Co., 504. 
 Cornogg 1'. Abraham, 51. 
 Corp. of Columbia v. Harrison, 468. 
 Corrie u. Calder, 42. 
 Corson v. Corson, 273. 
 
 !,-. Dubois, 527. 
 Cortlandt Co. v. Herkemir Co., 393. 
 Corwin, Be, 530. 
 Coryell v. Stone, 177. 
 Cossens, Ex parte, 432. 
 Costello V. Crowell, 468. 
 Cotchet V. Dixon, 51. 
 Cotton V. Beasl}', 35. 
 
 u. Luttrell, 46. 
 
 V. State, 291. 
 Cottrell V. Cottrell, 177. 
 
 V. Woodson, 234. 
 Cottrill V. Myrick, 505. 
 Couch V. Watson Coal Co., 480. 
 Coughlin V. People, 309, 320, 321. 
 Couillard v. Duncan, 348. 
 Coulter V. American &c. Exp. Co., 350. 
 
 V. Cresswell, 186. 
 County V. Liddy, 36. 
 County of Jones v. County of Linn, 531. 
 Cousins V. Jackson, 155. 
 Covanhovan v. Hart, 417, 420. 
 Coveney v. Tannahill, 448. 
 Covey I!. Campbell, 482. 
 Covington v. Bussey, 114. 
 Covington &c. R. R. Co. < . Ingles, 118, 
 
 186. 
 Cowden v. Reynolds, .340, 351, 355. 
 Cowles V, Bacon, 163. 
 
XXVlll 
 
 TABLE OF CASES. 
 
 Cowles V. Hayes, 465. 
 
 V. Rowland, 59. 
 
 V. Whitman, 58. 
 
 V. Wilcox, 97. 
 Cowley V. People, 494. 
 Cox V. Daris, 61. 
 
 u. Hall, 133. 
 
 n. Hill, 63. 
 
 V. McKean, 78, 277. 
 
 „. Prater, 358. 
 
 V. Pruitt, 368, 372. 
 
 t. Van Alstine, 449. 
 
 V. Way, 100. 
 
 V. Whitefield, 476. 
 
 B. Williams, 94, 447. 
 
 V. Wilson, 76, 77. 
 Cozens v. Pooser, 116. 
 Crabtree v. Hagenliaugh, 333. 
 
 V. Kile, 330, 331.' 
 Craddock v. Thornton, 41. 
 Craft V. State, 17, 308. 
 
 V. Commonwealth, 339, 375. 
 Craig V. Andrews, 93. 
 
 V. Brendell, 228. 
 
 V. Calloway County Court, 118. 
 
 (/. Gerrish, 479. 
 
 u. Grant, 352. 
 
 V. Kittredge, 267. 
 
 (-. Patton, 111. 
 
 r. Ecintzell, 118. 
 
 V. State, 330. 
 Craighead v. State Bank, 118. 
 
 V. Wells, 420. 
 Cram v. Cram, 268. 
 Cramer v. CuUinane, 408. 
 
 ;■. Reford, 270. 
 Crandall v. People, 254. 
 Crane v. Buchannan, 270. 
 
 V. Northfield, 475. 
 Crane i\ Thayer, 331. 
 Crapo V. People, 337. 
 Crary v. Caradine, 299. 
 
 V. Marshall, 55. 
 Craven v. Updike, 58. 
 Cravens v. Dewey, 108. 
 Crawford v. Abraham, 531. 
 
 o. Andrews, 480. 
 
 V. Cram, 532. 
 
 „. Robie, 203. 
 
 V. Wolf, 493. 
 
 . Crayton v. Collins, 88. 
 
 Creamer v. Sirp, 177. 
 
 V. State, 288. 
 Creed v. Hartman, 477. 
 
 V. People, 316. 
 Creevy v. Carr, 407. 
 
 Crenshaw v. Robinson, 169. 
 Cresswell v. Jackson, 508. 
 Crews V. Threadgill, 402. 
 Croft V. Arthur, 74. 
 Croker v. State, 456. 
 Crook V. Henry, 284, 453. 
 
 r. Taylor, 107. 
 Crooker v. Appleton, 114, 115. 
 
 V. Jewell, 137. 
 Croom V. Noll, 113. 
 Cronan v. Roberts, 355. 
 Crosby, Matter of, 403, 404. 
 Crosby v. Floyd, 294. 
 
 V. Nichols, 133. 
 Grose v. Eutledge, 286, 453. 
 Crounse v. Fitch, 346, 473. 
 Grouse v. Holman, 482. 
 Crowder v. Shackleford, 112. 
 Crowe V. Colbeth, 245. 
 
 u. Peters, 101. 
 Crowell V. Kirk, 356, 405. 
 
 0. Western Reserve Bank, 117. 
 Crowley V. Barry, 89. 
 Grozier r. Berry, 532. 
 Grutchfield o. Richmond &c. R. E. 
 Go., 309. 
 
 u. State, 48, 49. 
 Grymes v. White, 108, 154. 
 Cubbison v. MeCreary, 12. 
 Cudworth v. South Carolina Ins. Co., 
 
 351. 
 Culbertson v. Holden, 40. 
 Culbush V. Gilbert, 387. 
 Gull V. Herwig, 266. 
 Gullough, Re, 531. 
 Cully V. Ross, 67. 
 Culter V. Taylor, 71. 
 Culver V. Dwight, 480. 
 
 u. Haslara, 484. 
 Cumniings v. Fisher, 95. 
 
 V. Gann, 147. 
 
 u. Taylor, 420. 
 Cummins v. Coffin, 106. 
 
 V. Wire, 86, 129. 
 Gundiff V. Orms, 462. 
 Cuneo V. Bessoni, 512. 
 Cunningham v. Carpenter, 105. 
 
 V. Knight, 142. 
 Cupp V. Ayers, 177. 
 Gurcier v. Pennock, 104. 
 Curren v. Connery, 387, 422. 
 Currier v. Boston &c. R. R. Co., 480. 
 Curry v. Robinson, 9. 
 Curtis V. Chicago Sc. R. R. Co., 480. 
 V. Cochran, 330. 
 
 ^. Fay, 332. 
 
TABLE OF CASES. 
 
 XXIX 
 
 Curtis V. Gaiio, 504. 
 
 V. Graham, 46. 
 
 V. Ingham, 278. 
 
 ('. Knox, 4o.3. 
 
 V. Marrs, 92. 
 
 V. Monteath, 105. 
 Curtiss V. Strong, 12, 14. 
 Cusack V. Tomlinson, 116. 
 Cujliman v. Blakesly,102. 
 
 a. Downing, 90, 97. 
 
 V. Loker, 19, 56. 
 Cutlihert v. Lewis, 5.3. 
 Cutler V. Barbicr, 192. 
 
 V. Carpenter, 477. 
 
 I'. Copeland, 56. 
 
 V. State, 520. 
 Cutter V. Fanning, 54, 107. 
 
 u. Ratlibun, 134. 
 
 D. 
 
 Dabney v. Mitchell, 454. 
 DafBn v. State, 288, 338. 
 Dailey v. Monday, 64. 
 
 V. State, 310, 370. 
 Da Lee v. Blackburn, 408. 
 Dalton's Appeal, 349. 
 Dalzell V. Davenport, 482. 
 Dameron v. Williams, 74. 
 Dana v. Tucker, 83. 
 Dance v. McBride, 410. 
 Danforth v. Carter, 478. 
 
 V. Roberts, 69. 
 Daniel v. Proctor, 281. 
 Daniels v. Conrad, 349. 
 
 V. Foster, 244. 
 
 ('. Hudson River Fire Ins. Co., 503. 
 
 t. Mosher, 475. 
 Dannels v. Fitch, 119. 
 Darling v. Hurst, 311. 
 
 V. March, 57, 98. 
 Darlington's Appropriation, 109. 
 Dascomb v. Davis, 192. 
 Daspit V. Ehringer, 285. 
 Dater v. Wellington, 455. 
 Daupliin v. United States, 500. 
 Davev. State, 331. 
 Davenport v. Freeman, 89, 94. 
 David V. Moore, 33. 
 Davidson v. Love, 96. 
 
 c. Sallande, 460. 
 
 V. State, 7. 
 Davie v. Jones, 308. 
 Davies v. Davies, 344. 
 
 V. Morgan, 1*26. 
 
 V. Morris, 123. 
 Davis V. Allen, 463. 
 
 Davis V. Brown, 94, 95. 
 
 u. Cayuga &c. H. R.Co., 207. 
 
 V. Cram, 70. 
 
 o. Dale, 407. 
 
 V. Davis, 160, 2.38. 
 
 V. Dinwoody, 267, 270, 281. 
 
 V. Elliott, 481. 
 
 v. Field, 468. 
 
 u. Keyes, 345. 
 
 !'. Mason, 500. 
 
 0. McLester, 168. 
 
 c: Melvin, 388, 501. 
 
 1. Morgan, 128. 
 V. Plymouth, 237. 
 c. Roberts, 300. 
 V. Robey, 345. 
 
 V. Salisbury, .36. 
 
 V. Sawtelle, 96. 
 
 V. Smith, 9. 
 
 u. State, .368, 375, 377, 495, 497, 
 498, 530. 
 
 I . Tarver, 156. 
 
 V. Whiteside, 299. 
 
 V. Windsor Savings Bank, 237. 
 Davis & Carter's Case, 17. 
 Daw V. Vreeland, 205. 
 Dawley v. Ayers, 268. 
 
 V. State, 19. 
 Dawson c. Callaway, 407, 473. 
 
 i:. Wait, 238. 
 Day V. Crawford, 363. 
 
 !i. Cummings, .38. 
 
 V. Green, 54. 
 
 V. Hall, 101. 
 
 V. Secly, 284. 
 
 V. State, 257, 329. 
 
 ,■. Stickney, 338. 
 Dayton v. Newman, 74. 
 Dean v. Commonwealth, 26, 327. 
 
 c. Fuller, 476. 
 
 I. Knight, 353. 
 
 u. McLean, 504. 
 
 V. Speakraan, 67. 
 
 V. Swift, 101. 
 
 ... Warnock, 227. 
 
 i: Young, 113. 
 Dearborn v. Boston &c. R. R. Co., 203. 
 
 V. Dearborn, 144. 
 Dearing v. Wyndham, 56. 
 Dearmond r. Dearraond, 41, 141, 409. 
 De BennevlUe v. De Bennevillc, 530. 
 De Berenger's Trial (Gurney), 432. 
 Deck V. Johnson, 275. 
 Deer v. State, 21. 
 Deering r. Metcalf, 319. 
 
 V. Sawtel, 87, 94. • 
 
XXX 
 
 TABLE OP CASES. 
 
 Degenliart v. Schmidt, 278. 
 l)e Kerlegand v. Robin, 112. 
 Dela u. Evans, 96. 
 Delamater v. People, 23, 249. 
 n)e Lane v. Moore, 35. 
 Delaney v. Regulators, &c., 527. 
 Delaware &c. Co. u. Starrs, 491. 
 
 c. Iricks, 71. 
 Delee v. Sandel, 61, 148. 
 De Lisle v. Priestman, 351, 355. 
 Dell V. Oppenheimer, 319. 
 Dellinger's Appeal, 272. 
 Dells !■. State, 319, 476. 
 De Long v. Giles, 314. 
 Delooliery v. State, 248. 
 Delozier v. State, 145. 
 Delvee v. Boardmau, 323. 
 Dembo v. Wright, 177. 
 Dement, Ex parte, 533. 
 Demerritt v. Randall, 507. 
 Demoulin v. Anglaire, 186. 
 Den V. Downam, 300. 
 
 ('. Jolmson, 267. 
 
 ?'. Vancleve, 6. 
 Dcniston v. Hoagland, 283. 
 Dennett v. Dow, 354. 
 
 1^. Lamson, 147. 
 Denney v. Booker, 78. 
 Denning ;■. State, 524. 
 Dennis v. Crittenden, 274. 
 Dennison v. Page, 273. 
 Dennistown ;;. Fleming, 88. 
 Densler ;;. Edwards, 299. 
 Dent V. Portwood, 78. 
 De Phue v. State, 496. 
 Derby ;;. Derby, 324. 
 
 V. Gallup, 346. 
 Derning v. Patterson, 170. 
 De Rosnie v. Fairlie, 65. 
 De Sailly v. Morgan, 339, 343. 
 Descadillas v. Harris, 116. 
 Deshon r. Merchants' Bank, 480. 
 
 v. Merchants' Ins. Co., 370. 
 Deslonde v. Darrington, 147. 
 De Sobry v. De Laistre, 343. 
 Despard's Case, 377. 
 Detroit &c. R. R. Co. o. Van Stein- 
 burg, 479, 505. 
 Detweiler v. Groff, 84, 504. 
 Devenbaugh v. Devenbaugh, 497. 
 De Vendal v. Malone, 300. 
 DeroU t'. Brownell, 425. 
 Devrie? v. Phillips, 318. 
 Dewdney v. Palmer, 297. 
 Dewey v. Warriner, 94. 
 
 e. Williams, 340. 
 
 De Witt V. Bailey, 480, 484. 
 Dexter v. Booth, 283, 453. 
 
 V. Parkins, 270. 
 Dial V. Crain, 111. 
 Dick V. Powell, 68. 
 Dicken v. Johnson, 485. 
 Dickenson v. Fitchburg, 494. 
 Dickerman ■». Graves, 286. 
 Diokerson v. Johnson, 134, 473. 
 Dickinson, Matter of, 518. 
 
 Ee, 426. 
 
 u. Barber, 486. 
 
 V. Codwise, 67. 
 
 (,'. Dickinson, 133. 
 
 V. Dustin, 336. 
 
 0. Fitchburg, 490. 
 V. Shee, 407. 
 
 Dickinson College v. Church, 116. 
 Dickson v. Boland, 83. 
 
 c;. Sharretts, 360. 
 
 ;;. Wilton, 457. 
 Diffenback v. New York Life Ins. Co., 
 
 190. 
 Digby V. Kenton Iron Co., 123. 
 Diggs V. Kirkland, 121. 
 Dikes V. Cordova, 235. 
 
 V. Miller, 145. 
 Dill V. State, 289, 524, 532, 533. 
 Dillard v. State, 488. 
 
 V. Wright, 78. 
 Dille V. Webb, 177. 
 Dillie V. Woods, 56. 
 Dillon V. Dillon, 285. 
 Dimick V. Downs, 333, 479. 
 Dismukes ;•. Tolson, 156. 
 District of Columbia r. Armes, 3. 
 Diversy v. Will, 296. 
 DivoU V. Leadhetter, 274. 
 Dixon !'. Edwards, 168. 
 
 V. Hood, 106. 
 
 c. Parmelee, 447. 
 
 V. People, 273, 287. 
 
 V. Vale, 437, 443. 
 Doane v. Garretson, 481. 
 Dobsonu. Racey, 283. 
 Dodd V. Moore, 370. 
 
 V. Norris, 37l. 
 
 V. Rogers, 177. 
 Dodge V. Averill, 40. 
 
 V. Stiles, 530. 
 Doe V. Cassiday, 148. 
 
 c. Himeliciv, 114. 
 
 1 . Jaclcson, 57, 73. 
 r. Newman, 26. 
 
 V. Paine, 149, 
 
 V. Perkins, 404, 4G6. 467. 
 
TABLE OF CASES. 
 
 XSXl 
 
 Dos V. President &c., 84. 
 
 <;. Keagan, 485. 
 
 d. Harrison v. Murrell, 124. 
 
 d. Mayor v. Tootli, 51, 122, 128. 
 
 of. Eowcliffe V. Egremont, 437. 
 Doer V. Osgood, 297. 
 Dogan V. Ashby, 142. 
 Doggett L\ Tallman, 338. 
 Dobson V. Dickson, 168. 
 Doke V. James, 455. 
 Doker v. Hasler, 284. 
 Dole V. Erskine, 139. 
 
 V. Johnson, 492. 
 
 V. Thurlow, 296. 
 Dolittle V. Eddy, 483. 
 Doll, Ex parte, 522. 
 Dollner v. Lintz, 382. 
 Doltz i: Morris, 493. 
 Donelson v. Taylor, 295. 
 Donkle v. Kohn, 16. 
 Donlery v. Montgomery, 173. 
 Donnell v. Jones, 395, 477. 
 Donnelly v.. County, 531. 
 
 V. Smith, 228, 275. 
 
 V. State, 13, 408, 417. 
 Donohoe u. People, 17, 23. 
 Douolme v. Henry, 307. 
 
 V. People, 250. 
 Doody V. Pierce, 162. 
 Doran v. Mullen, 395. 
 Dorrance v. Com., 101. 
 Dorsey v. Warfield, 484. 
 Doss V. Birks, 389. 
 Dossett V. Miller, 370. 
 Doster v. Brown, 504. 
 Doty V. Wilson, 140, 149. 
 Douh V. Barnes, 61. 
 Dougherty v. Deeney, 180. 
 
 V. Dougherty, 285. 
 
 V. Smith, 108, 142. 
 
 V. Snyder, 499, 500. 
 Douglas, In re, 528. 
 Douglass V. FuUerton, 173. 
 
 V. Holbert, 56. 
 
 V. Montgomery, 83, 310. 
 
 V. Owens, 100. 
 
 u. Sanderson, 35. 
 
 o. Terrell, 101. 
 
 V. Tousey, 329. 
 
 V. Wood, 433. 
 Dove V. State, 486. 
 Dover v. Maestaer, 21. 
 Dowdell V. Neal, 828. 
 Dowdswell V. Nott, 128. 
 Downer v Button, 113. 
 
 V. Davis, 122. 
 
 Downer v. Eowell, 68, 402. 
 
 Downes v. Maryland &c. R. R. Co., 190. 
 
 Downey v. Andrus, 195. 
 
 V. Hicks, 149. 
 Downing i'. Rugar, 287. ' 
 Downs V. Belden, 134. 
 
 V. Sprague, 504. 
 Doyle V. N. Y. Eye and Ear Infirmary, 
 
 498. 
 Doyns v. State, 436. 
 Dozier v. Joyce, 346, 410. 
 Draggoo v. Draggoo, 1X6. 
 Drake v, Brander, 285. 
 
 V. Eakin, 160. 
 
 u. Foster, 295. 
 
 I,. Henly, 92, 94. 
 
 V. State, 518. 
 Draper v. Draper, 8. 
 
 I,. ITeusingen, 276. 
 
 C-. Vanhorn, 36, 39, 101. 
 
 u. Worcester &c. K. R. Co., 116. 
 Dravo v. Fiabel, 311, 357. 
 Dreier a. Continental Life Ins. Co., 
 
 450. 
 Drennen v. Lindsey, 158, 357. 
 Dresser v. Brooks, 68. 
 Drew V. Roberts, 269. 
 
 V. Simmons, 155. 
 
 V. Wadloigh, 343. 
 
 V. AVood, 338. 
 Driggs V. Smith, 366, 460. 
 Drinkwater v. Holliday, 138. 
 Drowne v. Stinipson, 36. 
 Du Barre v. Livette, 448, 452. 
 Dublin Case, The, 478. 
 Dubois V. Baker, 507, 510. 
 Duchess of Kingston's Case, 463. 
 Dudley v. Beck, 244. 
 
 (,-. Belles, 121, 370. 
 
 u. Elkins, 397, 411. 
 
 V. Love, 138. 
 
 V. Steele, 156. 
 Duel r. Fisher, 71, 300. 
 Duff V. Lyon, 483. 
 Dutfee V. Pennington, 37, 43. 
 Duffin V. People, 315. 
 Dufresne v. Wiese, 331, 370. 
 Duke V. Pownall, 140. 
 Dumas v. State, 292. 
 Dun V. Cronise, 299. 
 Dunbar v. Chevalier, 52, 140. 
 
 0. Parks, 82. 
 Duncan v. Gerdine, 197. 
 
 r. McCullough, 387. 
 Dundas v. Mulilenberg, 55. 
 Dunham's Appeal, 484. 
 
xxxu 
 
 TABLE or CASES. 
 
 Dunham v. Branch, 147. 
 
 V. Forbes, 422. 
 
 V. WiUiauis, 134. 
 Dunlap V. Berry, 462. 
 
 V. Hearn, 268, 478. 
 
 V. Patterson, 306. 
 Dunn, Re, 526. 
 Dunn V. Aslet, 353. 
 
 V. Paokwood, 62, 65. 
 
 V. Pipes, 421. 
 
 V. State, 375. 
 Dunne v, Deerf, 180. 
 Dunning v. Ranliin, 403. 
 Dupree v. State, 26, 331. 
 Dupuy V. Truman, 464. 
 Durant v. People, 257. 
 Durham v. Heaton, 101. 
 
 V. Holemau, 322. 
 Dutcher, In re, 197. 
 Dutcher v. Justices, &c., 531. 
 Duttenhoeffer v. State, 448. 
 Dutton V. Colt, 389. 
 
 V. Woodman, 408, 417. 
 Duval V. Darey, 285. 
 Dwelly II. Dwelly, 188, 270. 
 Dwight V. County Commissioners, 482. 
 
 V. Richard, 186. 
 Dwinelle v, Henriquez, 159. 
 Dye V. Davis, 282. 
 Dyer v. Dyer, 213. 
 
 V. Homer, 275. 
 
 i: Morris, 391. 
 Dyson v. Beckam, 169. 
 
 B. 
 Eacho t). Cosby, 128. 
 Eagan v. Cowan, 508. 
 Eagle Mf g Co. v. Browne, 482. 
 Earl of Falmouth v. Moss, 459. 
 Earle v. Clark, 116. 
 
 V. Harrison, 231. 
 Earll V. People, 25. 
 Easley v. Easley, 54. 
 Easly V. Dye, 72. 
 Eason v. Chapman, 334. 
 East V. Chapman, 443. 
 Easterbrook v. Prentiss, 452. 
 Easterday v. Kilborn, 12. 
 Easterly v. Bassignano, 39. 
 East India Co. v. Evans, 32. 
 Eastman v. Amoskeag Mf g Co., 479. 
 
 V. Hedges, 114. 
 Eaton V. Farmer, 424, 434, 439. 
 
 V. Gentle, 52, 101. 
 
 u. Rice, 402. 
 
 u. White, 146. 
 
 Eaton V. Woolly, 474. 
 Eaves v. llarbiii, 186. 
 Eberhardt v. AVood, 68. 
 Ecker v. Moore, 244. 
 Eckford v. De Key, 38, 45, 283. 
 Eddy V. Peterson, 89. 
 Edgell V. Lowell, 131. 
 Edgerly v. Shavf, 96. 
 Edgerton v. Wolf, 364. 
 Edington v. iEtna Life Ins. Co., 450. 
 V. Mutual &c. Ins. Co., 296, 449, 
 450. 
 Edmonds v. Rowe, 389. 
 Edmondson v. State, 515. 
 Edmonson v. State, 421. 
 Edwards v. Ballard, 131. 
 (". Currier, 134. 
 V. Dismukes, 270. 
 (,'. Musgrove, 70. 
 
 I. Pitts, 269. 
 
 V. Sullivan, 338. 
 Eggers V. Eggers, 306, 494, 512. 
 Ehle V. Bingham, 531. 
 Ela V. Edward, 112. 
 Elam V. State, 332. 
 Elbia V. Wilson, 477. 
 Elder v. Ogletree, 484. 
 Eldridge v. Wadleigh, 56. 
 Elfelt V. Smith, 482. 
 Elgin V. Hill, 56. 
 Elkins V. State, 101. 
 EUege V. State, 23. 
 Filer V. Roberts, 521. 
 Ellerbe, In re, 518. 
 EUicott V. Pearl, 370. 
 Elliot i\ Lewis, 531. 
 Elliott V. Boren, 131. 
 
 V. Boyles, 407. 
 
 V. Morgan, 27. 
 
 V. Porter, 53. 
 
 V. Sanderson, 474. 
 
 V. Shaw, 226. 
 Ellis V. Bervellier, 92. 
 
 u. Ellis, 133. 
 
 V. Fisher, 105. 
 
 c. Ham, 68. 
 
 V: Lauve, 106. 
 
 V. Ponton, 74. 
 Ellison V. Johnson, 37. 
 
 I'. Stevenson, 530. 
 Ellmaker ;■. Buckley, 408, 412. 
 Ellsworth V. Potter, 328. 
 Elmore r. Jacques, 219. 
 Elswick V. Commonwealth, 282, 45-^. 
 Elwood V. Western Union. Tel. Co., 
 317. 
 
TABLE OF CASES. 
 
 XXXIU 
 
 Ely V. Cliite, 219. 
 
 u. Forward, 51. 
 
 u. Hager, 100. 
 
 V. Jones, 298. 
 Emerson v. Atvvater, 41. 
 
 V. Blondin, 278. 
 
 V. Lowell Gas Light Co., 492. 
 
 0. Newberry, 125. 
 
 u. Providence Hat Mf g Co., 56. 
 
 V. Stevens, 347. 
 Emery's Case, 440. 
 Emmet v. Butler, 44, 46. 
 Emory v. Owings, 301. 
 Empire Mf'g Co. v. Stuart, 505. 
 Endel v. "Walls, 4. 
 Enders v. 'Williams, 324. 
 Englehard v. Slater, 57. 
 English !;. Cropper, 282. 
 
 V. State, 379. 
 Engmann i'. Immel, 279, 306. 
 Eno V. Del Vecchio, 40. 
 Entriken v. Brown, 46. 
 Epps V. State, 388. 
 Erb V. Commonwealth, 377. 
 
 i: Underwood, 74. 
 Erie Preserving Co. v. Miller, 467. 
 Ernst V. The Brooklyn, 244. 
 Errissman v. Errissman, 391. 
 Erwin v. Smaller, 269. 
 Eslava v. JNIazange, 153. 
 Essex Bank v. Eix, 44, 296. 
 Estice V. Cockerell, 54. 
 Etheredg'e v. Partain, 41. 
 Etler V. Bailey, 69. 
 Evans v. Boiling, 465. 
 
 V. Commercial &c. Ins. Co., 503. 
 
 V. Dela, 96. 
 
 V. Eaton, 51, 298. 
 
 u. Evans, 373. 
 
 a. George, 306. 
 
 V. Greene, 400. 
 
 I,. Hardgrove, 32. 
 
 ^. Hays, 136. 
 
 V. Hettich, 3, 51. 
 
 II. Lipscomb, 309. 
 
 V. People, 477, 489. 
 
 ,'. Pigg, 148. 
 
 V. Keed, 227. 
 
 V. Smith, 92, 330. 
 
 V. State, 21, 333. 
 Evansville E. E. v. Cochran, 482. 
 
 V. Fitzpatrick, 480. 
 
 V. Stringer, 480. 
 Everette v. Lowdham, 392. 
 Everly v. Cole, 181. 
 Evers v. Life Assoc, of America, 276. 
 
 Everts v. Palmer, 207. 
 Ewer V. Ambrose, 353. 
 Ewing r. Cargill, 70. 
 
 u. Ewing, 228. 
 Eyerman v. Sheehan, 475, 478. 
 Ezell y. Giles County, 123. 
 
 F. 
 
 Fachina i'. Sabine, 389. 
 Faeer v. Evertson, 31. 
 Pagan r. Long, 199. 
 Fagin v. Cooley, 76. 
 Fain v. Edwards, 366. 
 Fairchild v. Armsbaugh, 107. 
 
 V. Bascomb, 328, 352, 495, 497. 
 
 V. Beach, 51. 
 Fairfax v. Fairfax, 118. 
 Fairly v. Fairly, 136, 351. 
 Paler v. Jordan, 197. 
 Falls V. Carpenter, 142. 
 
 V. Gaither, 114. 
 Falon V. Keese, 213. 
 Falvey v. Massing, 524. 
 Fanning v. Myers, 298. 
 Paris V. King, 154. 
 Farley v. Flanagan, 272. 
 
 c. Norton, 219. 
 
 t'. State, 336. 
 Farmer c. McCraw, 109. 
 
 c. Storer, 530. 
 Farmer's &c. Bank v. Young, 417. 
 
 V. Griffith, 92. 
 
 t. Strohecker, 408. 
 Farmers' Mutual Fire Ins. Co. 
 
 Wells, 237. 
 Farnsworth v. Ebbs, 219. 
 Farnum v. Virgin, 189. 
 Farr i'. Gyles, 335. 
 
 V. Hicks, 372. 
 
 i: Swan, 501. 
 
 V. Thompson, 355. 
 Farrar i-. Metts, 88. 
 Farrell ;;. Brennan, 486, 496. 
 
 0. Ledwell, 267. 
 Farrelly i'. Ladd, 192. 
 Farrington v. Farrington, 71. 
 Farrow v. Blomfield, 342. 
 
 V. Bragg, 112. 
 Farwell v. Harris, 143. 
 Fash V. Blake, 142. 
 Fatheree v. Fletcher, 142. 
 Faulkerson v. Thornton, 200. 
 Faunce v. Leslie, 62. 
 Fay i\ Guynon, 452. 
 
 V. Harlan, 036. 
 
XX XIV 
 
 TABLE OF CASES. 
 
 Peatherman v. Miller, 9. 
 I'eeter v. Heath, 461, 467. 
 Felch V. Hooper, 283. 
 Felkins v. Baker, 464. 
 Fell V. McHenry, 126. 
 Fellows V, American Life Ins. &c. Co., 
 67. 
 
 V. Wilson, 433. 
 Fenlcy v. Stewart, 206. 
 I'^enn v. Granger, 31, 38. 
 Fennell c. McGowan, 197. 
 Fenwick's Case, 80. 
 Fenwick v. Forrest, 109. 
 Feree r. Strome, 519. 
 Ferguson v. Cappeau, 118. 
 
 V. Eutlierford, 408. 
 Ferree v. Thompson, 69. 
 Ferriber v. Latting, 187. 
 Ferriday v. Selser, 142. 
 Ferris v. Smith, 101. 
 
 V. Ward, 125. 
 Ferson v. Sanger, 58, 295. 
 Fetterman v. Plummer, 61. 
 Fidelity Ins. Co.'s Appeal, 284. 
 Fidler v. Cooper, 455. 
 Fiedler v. Smith, 101. 
 Field V. Brown, 239. 
 
 V. Davidson, 117. 
 
 I/. Harrison, 362. 
 
 u. New York &c. E. E. Co., 207. 
 
 V. Snell, 74. 
 Fillmore v. Union Pacific E. E. Co,, 
 
 350, 418. 
 Finch V. Creech, 112. 
 Fincher v. State, 289. 
 Findley v. Wyser, 531. 
 F'iiigley v. Cowgill, 498. 
 Finlay v. Humble, 133. 
 Finley v. Hunt, 319. 
 Finn !■. Finn, 285. 
 
 I-. Gustin, 89. 
 
 V. Vallejo, 115. 
 Finnell v. Cox, 98. 
 Finney v. State, 292. 
 First Baptist Church v. Brooklyn Ins. 
 
 Co., 352, 475. 
 First National Bank c. Haight, 322. 
 
 0. Omaha, 506. 
 
 V. Eeed, 478. 
 
 V. Eobert, 509. 
 
 V. Wood, 244. 
 Fischer v. Morse, 192. 
 Fish V. Dodge, 483. 
 
 V. French, 97. 
 Fisher c. Conway, 279, 331. 
 
 0. Deibert, 478. 
 
 Fisher ;;. Foss, 68. 
 
 V. Konalds, 432, 434, 439. 
 
 V. Verplanck, 211. 
 
 V. Willard, 113, 295. 
 Fister v. Beal, 134. 
 Fitch V. Bates, 62. 
 
 V. Boardman, 99. 
 
 V. Bogue, 35. 
 
 0. Hill, 97, 272, 277. 
 Fitzcox V. State, 312. 
 Fitzgerald, In re, 245. 
 
 V. Cox, 283. 
 
 V. State, 47. 
 Fitzpatrick v. Baker, 147. 
 
 V. Hays, 154. 
 Fitzsimmons v. Southwick, 274. 
 Flanagan v. State, 6. 
 Flanagin v. State, 274. 
 Flattery v. Flattery, 373. 
 Flavell V. Flavell, 309. 
 Fleming v. State, 328. 
 Flemming v. Mulligan, 90. 
 Fletcher v. Cole, 139. 
 
 V. Fletcher, 187. 
 Flinn v. Chase, 72. 
 Flint V. Allyn, 31. 
 
 V. Flint, 482. 
 Flogg V. Mann, 74. 
 Flood V. Tragoff, 186. 
 
 c. Thomas, 320. 
 Flores v. Thorn, 532. 
 Flower v. Downs, 186, 460. 
 Floyd V. Bov'ard, 408. 
 
 V. Miller, 282. 
 
 V. State, 397, 438, 439, 442. 
 
 ,.. Wallace, 339, 407. 
 Floyd Co. Comm'rs v. Black, 531. 
 Fogelman v. State, 345. 
 Fogg V. Babcoek, 188. 
 Foley V. Mason, 37. 
 Folkes V. Chadd, 502. 
 Follansbee v. AValker, 63. 
 Folsom V. Apple Eiver Log Driving 
 Co., 464. 
 
 u. Brown, 338. 
 
 V. Chapman, 188. 
 Foltz V. State, 480. 
 Foot V. Hunkins, 339. 
 Foote !'. Beecher, 219. 
 
 V. Silsby, 37. 
 Forbes v. Caruthers, 501. 
 
 f. Howard, 482. 
 
 o. Meeker, 523. 
 
 V. Snyder, 173. 
 
 V. Waller, 394. 
 
 <,. Williams, 84. 
 
TABLE OF CASES. 
 
 XXXV 
 
 Force v. Smith, 388. 
 Ford V. Bronaugh, 75. 
 
 V. Cheney, 238. 
 
 ... Clements, 235. 
 
 V. Commonwealth, 460. 
 
 V. David, 40. 
 
 V. Ford, 332, 334. 
 
 r. Haskell, 324. 
 
 V. Holmes, 167. 
 
 V. Jones, 330. 
 
 V. Kennedy, 169. 
 
 V. McKibbon, 52, 56. 
 
 I'. Monroe, 530. 
 
 V. Nichols, 97. 
 
 V. State, 378, 435, 484. 
 
 ■V. Walsworth, 138. 
 Foreman v. Ahl, 96, 97. 
 
 V. Baldwin, 21. 
 Forgery v. First National Bank, 491, 
 
 509, 510. 
 Forney v. Ferrell, 411. 
 Forrester i'. Torrence, 49, 227. 
 Forshee v. Abrams, 40. 
 Forsyth Co. Comm'rs v. Lash, 223. 
 Fort V. Brown, 497. 
 
 V. Davis, 156. 
 
 V. Gooding, 111. 
 Fosdick V. Starbuck, 99. 
 • Fosgate v. Thompson, 203. 
 Foss V. Foss, 286. 
 
 V. Nutting, 192. 
 Foster v. Berkey, 86. 
 
 V. Hall, 104, 447. 
 
 II. Leeper, 36. 
 
 V. McDonald, 520. 
 
 V. Nevvbrougli, 64. 
 
 u. Nowlin, 78. 
 
 V. People, 445. 
 
 V. Pierce, 443. 
 
 ./. Rutherford, 52. 
 
 V. Spear, 401. 
 
 V. Wallace, 72. 
 Foster's "Will, Matter of, 509. 
 Foulkes V. Chadd, 504. 
 Fountain v. Anderson, 54. 
 Foust V. Trice, 55. 
 Fowle V. Tidd, 272. 
 Fowler v. Collins, 51. 
 
 V. Middlesex Co., 482. 
 
 V. State, 551. 
 Fox V. Matthews, 323. 
 
 I). Territory, 5. 
 
 r. Whitney, 88, 94, 109. 
 
 V. Woodruff, 68. • 
 Frain v. State, 23. 
 Fralick v. Presley, 409. 
 
 Frammel v. Thomas, 426. 
 Frank v. Lilienfeld, 276. 
 
 V. Manny, 326. 
 Frankfort Bank v. Johnson, 54. 
 Franklin v. Pinckney, 213. 
 Franklin Bank v. Freeman, 116. 
 
 V. Pratt, 90, 94. 
 Frantz v. Ireland, 480. 
 Fraser v. Jennison, 398, 450, 451, 494. 
 
 u. Marsh, 138. 
 
 V. People, 364. 
 
 V. Tupper, 603. 
 Frazer v. Carpenter, 89. 
 
 V. People, 308. 
 Frazier c. Laughlin, 38. 
 Frear v. Evertson, 29. 
 Fredd v. Eves, 409. 
 Fredlander v. Strawn, 36. 
 Free v. State, 18. 
 Freleigh v. State, 420. 
 Freeman v. Arkell, 80. 
 
 V. Bigham, 167. 
 
 V. Britton, 94. 
 
 V. Jennings, 61. 
 
 V. Lawrence, 211, 493. 
 
 V. Lewis, 134. 
 
 V. Luckett, 299. 
 
 V. Spalding, 79, 208. 
 
 V. State, 379. 
 Freeman's Bank v. Rollins, 91. 
 French v. Merrill, 370. 
 
 V. Millard, 327, 333. 
 
 V. Price, 525. 
 
 V. Venneman, 176, 432. 
 Frentress v. Markle, 70. 
 Frew V. Clarke, 227. 
 Frie v. Buckingham, 202. 
 Friodlander v. London Assur. Co., 356. 
 Friel v. Wood, 274. 
 Friend, Sir J., Case of, 369, 432, 437. 
 Fries v. Brugler, 432, 437. 
 Frink v. McClung, 53. 
 Froman v. Rous, 177. 
 Frost V. Hanford, 40. 
 
 u. Hill, 133. 
 
 V. McCargar, 367. 
 Frow V. Downuian, 67_, 74. 
 Fry V. Coleman, 90. 
 Frye r. Bank of Illinois, 3-30. 
 Fugate V. Pierce, 276. 
 Fuller V. Fuller, 3, 15. 
 
 c Lendrum, 179. 
 
 V. Mattice, 532. 
 
 V. Townsend, 134. 
 
 V. Wheelock, 116. 
 FuUis V. Kidd, 497. 
 
xxxvi 
 
 TABLE OP CASES. 
 
 Fulmer v. Hays, 327. 
 Fulton V. Central Bank, 408. 
 Eulton Bank v. New York &c. Canal, 
 49, 531. 
 
 V. Stafford, 300, 408, 409. 
 Fulton Ins. Co. v. Goodman, 86. 
 Fuuk V. Dillon, 27fi. 
 
 V. Eggleston, 173. 
 Fuqua v. Dinwiddle, 234. 
 Furbush v. Goodwin, 417. 
 Furniss i'. The Magoun, 116. 
 Furrou v. Chapin, 276. 
 
 G. 
 
 Gabbett v. Sparks, 167. 
 Gage V. Gage, 73. 
 
 V. Stewart, 53. 
 
 V. Whittier, 86. 
 Gahagan v. Boston &c. R. R. Co., 480. 
 Gaines v. Commonwealth, 347. 
 Galbraith v. Scott, 54. 
 Gale V. N. Y. Central &c. R. R. Co,, 
 338. 
 
 V. People, 498. 
 Galena &e. R. R. Co. c. Fay, 339. 
 
 V. Welch, 116. 
 Galliher'j). People, 319. 
 Galloway v. Morris, 116. 
 Galway v. FuUertcn, 270. 
 Gamache v. Gambs, 78. 
 Gamble v. Hepburn, 228. 
 Gandolpho v. Appleton, 345. 
 Gangwere's Estate, 310. 
 Ganse v. Edminston, 53. 
 Garbett's Case, 443. 
 Garborough v. Moss, 403. 
 
 V. State, 337. 
 Gardenier v. Tubbs, 134, 
 Gardiner v. Gardiner, 484. 
 
 V. People, 497. 
 Gardner v. Bartholomew, 336. 
 
 V. Finley, 40. 
 
 t . Gardner, 58. 
 
 u. Gordon, 211. 
 
 V. Klutts, 271. 
 
 V. Leraud, 104. 
 
 V. McLallen, 228. 
 
 u. Smith, 233. 
 Garey v. Frost, 424, 525. 
 Garlands. Scott, 110. 
 Garner v. Beatty, 106. 
 
 V. Bridges, 130. 
 
 (.. Myrick, 106. 
 Gamier v. Lebeau, 199. 
 Garrett v. Ferguson, 117. 
 
 u. Holloway, 117. 
 
 Garrett v. State, 25, 401. 
 
 Garrison ;;. Garrison, 486. 
 
 Garthwaite v. Hart, 235. 
 
 Gartside v. Conn. Mut. Life Ins. Co,, 
 
 449. 
 Garvey v. Camden, 32. 
 Garvin v. Williams, 200. 
 Gaskill V. King, 283. 
 Gas Light Co. v. City Council, 115. 
 Gass V. Gass, 124. 
 
 o. Stinson, 117, 406. 
 Gassenheimer v. State, 55. 
 Gates V. Gould, 145. 
 
 u. Johnston, 144. 
 
 o. Nash, 40. 
 Gaton V. Board of Comm'rs, 532. 
 Gaul V. Groat, 63. 
 
 ■0. Willis, 94. 
 Gaunlett ;;. Whitworth, 503. 
 Gavin v. Buckles, 177. 
 Gavisk V. Pacific R. R, Co., 474. 
 Gay V. Gary, 70, 
 
 V. Gay, 192. 
 Gayle v. Bishop, 53, 91, 114, 420. 
 
 V. Morrissey, 283. 
 Geary v. People, 328. 
 Gebhard v. Shindle, 3, 5, 283. 
 Gee V. Lewis, 276. 
 
 V. Scott, 268. 
 General Worth, The v. Hopkins, 116. 
 Genet v. Lawyer, 219. 
 Gentry v. McMiilnis, 478. 
 Geoghegan i>. ReiJ, 93. 
 George ;;. Joy, 461, 464. 
 
 V. Norris, 393. 
 
 V. Pilcher, 366, 368. 
 
 ,;. Radford, 386. 
 
 V. Sargent, 44. 
 
 c. Starrett, 531. 
 
 r. State, 48, 312, 327. 
 
 V. Stubbs, 53. 
 Gerrish v. Cummings, 45, 293. 
 
 V. Pike, 339. 
 Gertz V. Fitchburg R. R. Co., 367. 
 Getehell v. Hill, 495. 
 Gibbons v. Potter, 307. 
 Gibbs V. Bryant, 46. 
 
 V. Hyler, 355. 
 
 V. Linabury, 341. 
 Gibson v. Commonwealth, 287. 
 
 V. Gibson, 484. 
 
 J). Hatchett, 475. 
 
 V. Troutman, 305. 
 
 V. Willi.Tms, 473. 
 Gicker r, Martin, 55, 
 Giddings v. Munson, 114. 
 
TABLJi OF CASES. 
 
 XXXVll 
 
 Gifford V. Coffin, 69. 
 
 V. Sackett, 209, 215. 
 
 V. Whitcomb, 192. 
 Gilbert v. Cherry, 483. 
 
 V. Curtis, 142. 
 
 V. Sage, 419. 
 Gilchrist i-. Bale, 286. 
 
 V. Martin, 62. 
 
 V. McKee, 3.30. 
 Gildersleeve v. Martin, 98. 
 Giles V. O'Toole, 483. 
 
 V. Powell, 386. 
 
 V. Wright, 158. 
 Gilkey v. Peeler, 271. 
 Gill's Will, 298. 
 Gill V Caldwell, 389. 
 
 V. Campbell, 56, 235. 
 
 V. People, 444. 
 Gilleland v. Martin, 268. 
 Gillespie v. Gillespie, 136. 
 
 V. Miller, 73. 
 
 V. Eedmond, 235. 
 Gillet V. Wimer, 318. 
 Gillett V. Sweat, 30. 
 Gilliam's Case, 119. 
 Gilliam v. Clay, 100. 
 
 V. Heneberry, 118. 
 
 V. State, 329, 378. 
 Gillobley v. State, 452. 
 Gilman v. Moody, 85. 
 
 V. Pugh, 89. 
 
 V. Town of Strafford, 495. 
 Gilmer v. McXairy, 223. 
 Gilmore v. Bowden, 32. 
 
 V. Brenham, 186. 
 Gilpin V. Vincent, 53. 
 Gioss V. Welwood, 215. 
 Girard Ins. Co. v. Marr, 92. 
 Gist V. Gans, 158. 
 Gittings V. Hall, 293. 
 Giveans v. McMurtry, 205. 
 Given V. Albert, 44, 473. 
 Givens v. Davenport, 76. 
 Glasscock v. McEae, 107. 
 Glaze V. Whitley, 367. 
 Glenn v. Black, 101. 
 
 V. Carson, 340. 
 
 c. Clore, 23, 335, 336. 
 
 V. Van Kapef, 142. 
 Goddard v. Leffinwell, 179. 
 Godfrey v. Mayberry, 371. 
 Godmanchester v. Phillips, 122. 
 Goeing v. Ourhouse, 319. 
 Goldsmith v. Friedlander, 362. 
 
 V. Picard, 403. 
 Goldstein v. Black, 506. 
 
 Gonzales College v. McHugh, 482. 
 
 V. State, 378. 
 Good v. Martin, 152, 162. 
 Goodall V. State, 345. 
 Gooden v. Morrow, 107. 
 Gooderich v. Allen, 193. 
 Goodhand v. Benton, 345, 364. 
 Goodhue v. Palmer, 39. 
 Goodman v. Kennedj', 301, 417. 
 
 ( . Losey, 74. 
 
 V. Nicklin, 233. 
 Goodner v. Browning, 233. 
 Goodpaster v. Voris, 516. 
 Goodrich v. Hanson, 133, 148. 
 Goodright v. Moss, 272, 452. 
 Goodrun v. State, 285, 453. 
 Goodwin v. Chadwick, 92. 
 
 u. Goodwin, 177. 
 
 V. Harrison, 80. 
 Goodwyn v. Goodwyn, 327, 478. 
 Goodyear v. Plicenix&c. Co., 207. 
 Gordon v. Bowers, 296, 297. 
 
 V. Commonwealth, 80. 
 
 c. Goodell, 130. 
 
 V. McEachin, 197. 
 
 V. Sims, 101. 
 Gorham v. Carroll, 93, 424, 522. 
 
 u. Gorham, 478. 
 
 V. Price, 213. 
 Goss V. Austin, 192. 
 Gotlieb V. Hartman, 319, 494. 
 Gould V. Beal, 39. 
 
 V. Carleton, 188. 
 
 V. Crawford, 6. 
 
 V. Day, 404. 
 
 .-. James, 51, 124. 
 
 1,. Norfolk Lead Co., 113. 
 
 V. Tatum, 142. 
 Governor v. Justices, £>2. 
 
 V. Roberts, 9. 
 Governor of Virginia v. Evans, IIP. 
 Governor, The, v. Daily, 147. 
 Governor, The, o. Gee, 56, 114. 
 Gower v. Emery, 447. 
 Grable o. Louisville &c. R. R. Co., 
 
 233. 
 Grady v. Early, 131. 
 
 V. State, 27. 
 Grafton v. Weeks, 529. 
 Graham, Re, 433. 
 
 V. Benjamin, 187.' 
 
 V. Chandler, 238. 
 
 V. Chrystal, 9, 331. 
 
 V. Crocket, 26. 
 
 V. Davis, 419. 
 
 u. Dyster, 344. 
 
xxxviu 
 
 TABLE OF CASES. 
 
 Graham v. Howell, 168. 
 
 0. McCreary, 133. 
 
 Grand Rapids &e. R. E. Co. u. Mar- 
 tin, 451. 
 Granger v. Basset, 192. 
 
 1 . Warrington, 458. 
 Grannis v. Brandon, 427. 
 Grant, Succession of, 63. 
 
 V. Beall, 84. 
 
 .■. Cole, 154. 
 
 !'. Levan, 301. 
 
 V. Slmrter, 104, 108. 
 Grattan v. Metropolitan Life Ins, Co., 
 449, 450, 451, 477. 
 
 I. National Life Ins. Co., 449. 
 Gratz V. Ewalt, 73. 
 Graves v. Blanchard, 72. 
 
 V. Merwin, 101. 
 Gray r. Alexander, 530. 
 
 V. Brown, 147, 148. 
 
 c. Cole, 282. 
 
 r. Cooper, 222. 
 
 n. Gray, 355. 
 
 V. Johnson, 83. 
 
 ,,. Morey, 88, 142, 147. 
 
 V. Murray, 421. 
 
 V. Obear, 167. 
 
 V. Ottolenqui, 37. 
 
 V. Pentland, 424, 457. 
 
 r. People, 24. 
 . V. St. John, 388. 
 
 .,. State, 27. 
 
 V. Whitney, 227. 
 Grayson's Appeal, 62. 
 Grayson v. Bannon, 114. 
 Greasons u. Davis, 499. 
 Greaton v. Smith, 408. 
 Greeley v. Stilson, 481. 
 
 !•. Dow, 91. 
 Green's Case, 71. 
 Green v. Alters, 394. 
 
 r. Caulk, 463. 
 
 V. Cawtliorn, 9. 
 
 V. Cochran, 306. 
 
 r. Gould, 192, 360, 395. 
 
 V. Rice, 346. 
 
 V. State, 517. 
 
 V. Sutton, 43. 
 
 .. Taylor, 271. 
 
 ,7. United States, 152. 
 Greenawalt v. McEnelley, 274. 
 Greene r. Durfee, 62. 
 
 V. Tims, 119. 
 Greenleaf v. Brith, 191. 
 Greenly v. State, 414. 
 Greenough u. Gaskell, 447. 
 
 Greenough v. Shelden, 145. 
 
 o. West, 98. 
 Greenup v. Stoker, 399. 
 Greenwalt v. Horner, 1.31. 
 Greer v. State, 323, 394. 
 Gregg V. Hill, 223. 
 
 V. Jamison, 341. 
 Gregory v. Dodge, 295, 296. 
 
 „. ISTesbit, 413. 
 
 V. Walker, 473. 
 Grier v. Cagle, 223. 
 Griffen v. State, 288. 
 Grif&n V. Brown, 70, 266, 277. 
 
 V. Lower, 197. 
 
 u. Smith, 282, 453. 
 , V. Wall, 350. 
 Griffing V. Harris, 89, 94. 
 Griffith V. Reford, 90. 
 Grigg V. Bodrio, 199. 
 Griggs V. Woodruff, 116. 
 Grigsby v. Simpson, 239. 
 Grimes i:. Booth, 111. 
 
 u. Martin, 392. 
 Griswold v. Edson, 196. 
 
 0. Sedgwick, 59. 
 Groat V. Palmer, 91. 
 Groning v. Devana, 27. 
 Groshon v. Thomas, 295. 
 Gross V. Reddig, 270. 
 Grosse v. State, 343. 
 Grosvenor v. Atlantic, 61. 
 Groves v. Steel, 102. 
 Gt. Western &c. Co. v. Loomis, 406. 
 Guery v. Kinsler, 231. 
 Guetting v. State, 497. 
 Guier v. Guier, 186. 
 Guignard v. Aldrich, 72. 
 Guild V. AUer, 402. 
 Guiterman r. Liverpool &c. S. S. Co., 
 
 493, 495, 504. 
 Guldin V. Guldin, 227. 
 Gulerette v. McKinley, 333. 
 Gulf City Ins. Co. v. Stephens, 503. 
 Gunn V. Mason, 72. 
 Gunnison r. Gunnison, 531. 
 
 V. Lane, 76, 188. 
 Gunter v. Gunter, 222. 
 
 V. Watson, 395. 
 
 V. Williams, 86. 
 Gurnee;;. Dessus, 27. 
 Gutterson v. Morse, 406. 
 Guy V. Hall, 94. 
 
 H. 
 
 Haack v. Pearing, 461. 
 Haas V. Choussard, 504. 
 
TABLE OF CASES. 
 
 XX XIX 
 
 Hackett v. Bonnell, 300. 
 
 V. Boston &o. R. R. Co., 479. 
 Iladduck v. Wilmartli, 73, 94. 
 Hadjo V. Gooden, 331, 307. 
 Hadley v. Chapin, 281. 
 
 V. State, 331. 
 Hadsall v. Scott, 219. 
 Haerle v. Kreihn, 280. 
 Hafner v. Irwin, 54. 
 Hagadorn v. Conn. Mut. Life Ins. Co., 
 
 495. 
 Haggerty v. Brooklyn &c. E. R. Co., 
 
 495, 496. 
 Ilagood V. Swords, 90. 
 Hahn v. Van Doren, 75. 
 Haig V. Newton, 90, 468. 
 Haile r. Hill, 57. 
 Haines v. Dennett, 91. 
 
 V. People, 323. 
 Hait I,'. Vidal, 482. 
 Hale V. Danforth, 280. 
 
 V. Gibbs, 9. 
 
 V. Kearly, 234. 
 
 c. Meegan, 128. 
 
 „. Smith, 134, 135. 
 
 V. Taylor, 398. 
 
 V. Wetmore, 108, 117,224. 
 Haley, II. Godfrey, 137. 
 
 V. State, 345, 367, 370. 
 Hall, Matter of, 523. 
 
 V. Acklen, 64, 187. 
 
 c. Alexander, 78, 111. 
 
 V. Baylies, 146. 
 
 V. Brown, 336. 
 
 V. Bargan, 270. 
 
 V. Gittings, 73, 293. 
 
 t. Gough, 101. 
 
 V. Hale, 98. 
 
 V. Hall, 78, 266. 
 
 V. Hamblett, 237. 
 
 V. Hill, 102. 
 
 V. Houghton, 355, 356. 
 
 V. Layton, 325. 
 
 V. Murphy, 275. 
 
 u. Ray, 465. 
 
 V. Richardson, 219. 
 
 V. Robinson, 211. 
 
 V. Simmons, 339. 
 
 o. State, 177, 473. 
 
 V. The Emily Banning, 159. 
 
 V. Young, 339. 
 Halley v. Webster, 13. 
 Hallock V. Smith, 421. 
 ■ Halsey v. Sinsebaugh, 467, 468. 
 Halstead v. Tyng, 205. 
 Halyburton v. Dobson, 223. 
 
 Halz V. Snyder, 96. 
 Hamblett v. Hamblett, 298. 
 Hamblin v. McLendon, 154. 
 Hamilton v. Congers, 361. 
 
 l: Doolittle, 74. 
 
 c. Hamilton, 229. 
 
 0. People, 334, 366. 
 
 [ . Summers, 299. 
 Hammock v. McBride, 307. 
 Hammond's Case, 500. 
 Hammond v. Drew, 169. 
 
 ^. Schultz, 216, 219. 
 
 V. Stuart, 516. 
 
 V. Woodman, 504. 
 Hamplirey v. Moxon, 89. 
 HamptoiT v. State, 275. 
 Hancliett v. Kimbark, 408. 
 Hancock v. Horan, 74. 
 
 V. Stephens, 333. 
 Hand v. The Elvira, 339. 
 Handley n. Call, 55. 
 
 V. Gandy, 509. 
 
 V. Leigh, 235. 
 Handlong v. Barnes, 205, 
 Hankerson v. Emery, 142. 
 Hankins v. Ingols, 70. 
 Hanley v. Life Assoc, 200. 
 Hanly v. Sprague, 138. 
 Hanna v. Barker, 269. 
 
 V. Spencer, 95. 
 
 V. Wray, 228. 
 Hannah v. McKellip, 367, 40T. 
 Hannum v. Belchertown, 82. 
 Hanover Water Co. u. Ashland Iron 
 
 Co., 482. 
 Hansell v. Erickson, 327. 
 Hanson v. Eirst &c. Church, 421. 
 Hansskncclit v. Claypool, 152. 
 Hanvey v. State, 391. 
 Harbin i: Roberts, 54, 62, 97. 
 Hardee v. Williams, 318. 
 Harden v. Hayes, 354. 
 Hardenburgh ?'. Cockroft, 476. 
 Hardin v. Polk County, 531. 
 
 V. Taylor, 186. 
 Harding v. Elzey, 177. 
 
 r. Mott, 93. 
 Hardy's Case, 412. 
 Hardy v. Chesapeake Bank, 190. 
 
 0. De Leon, 630. 
 
 V. Mathews, 271. 
 
 V. Merrill, 484. 
 Hardwick v. Hook, 128. 
 Harger v. Edmonds, 483. 
 Hargis, Succession of, 102. 
 Harick v. Jones, 230. 
 
Ill 
 
 TABLE OF CASES. 
 
 Harkins, Succession of, 63, 65. 
 Harness v. State, 409. 
 Harnett v. Garvey, 494, 499. 
 Harnish v. Herr, 227. 
 HarpenJing v. Daniel, 186. 
 Harper v. Burrow, 424. 
 
 I'. Indianapolis &c. R. R. Co., 
 345. 
 
 V. State, 377. 
 Harrel v. State, 14. 
 Harrell v. Hammond, 270. 
 Harriman v. Jones, 204. 
 Harrington ;;. Lincoln, 367, 400. 
 
 V. McNaugliton, 68. 
 Harris v. Bell, 320. 
 
 <■■ Coleman, 582. 
 
 V. Doe, 26. 
 
 o. Fletcher, 74. 
 
 V. Harris, 39, .169. 
 
 c. Morris, 77. 
 
 o. Panama R. R. Co., 403, 475, 
 481, 483, 498. 
 
 V. Plant, 84, 122. 
 
 u. Roof, 482. 
 
 11. Rosenberg, 364. 
 
 V. State, 367, 379. 
 
 V. Tippet, .347, 348, 410. 
 
 1-. Vauglian, 69. 
 
 V. Wilson, 346, 410. 
 Harrisburg Bank v. Foster, 94. 
 Harrison's Case, 369. 
 Harrison v. Brock, 305. 
 
 u. Dodson, 230. 
 
 1-. Johnson, 205. 
 
 I,. Kirke, 476. 
 
 V. Knight, 235. 
 
 u. Middleton, 401, 465, 467. 
 
 V. Rowan, 408, 412. 
 
 V. Tulane, 114. 
 Hart V. Carpenter, 85. 
 
 u. Hudson River Bridge Co., 489, 
 502. 
 
 V. James, 244. 
 Hartford v. Palmer, 5. 
 Hartford Bank v. Barry, 90. 
 Hartford Life Ins. Co. r. Gray, 818. 
 Hartford Protection Ins. Co. v. Har- 
 
 mer, 504. 
 Hartman v. Kej'stone Ins. Co., 504. 
 Havtness v. Boyd, 408. 
 Hartranft's Appeal, 424. 
 Hartung v. People, 498. 
 Hartz V. Woods, 85. 
 Harvey v. Alexander, 128. 
 
 V. Anderson, 51. 
 
 V. Coffin, 76. 
 
 Harvey v. EUithorpe, 97. 
 
 I . Evansville &c. L. P. Co., 533. 
 
 I . Hilliard, 203. 
 
 I . State, 465. 
 
 V. Sweasy, 91, 114. 
 Harwell v. State, 47. 
 Ha.rwood v. Murphy, 116. 
 Hasbrouck r. Baker, 518. 
 
 V. Vandervoort, 208. 
 Hasley v. White Pigeon Beet Sugar 
 
 Co., 127, 296. 
 Haskett v. State, 18, 529. 
 Haskins v. Hamilton Ins. Co., 481. 
 
 r. People, 290. 
 Hastings v. Devorsn, 181. 
 
 V. Gloster, 202. 
 
 c. Livermore, 343. 
 
 ,-. McKinley, 271. 
 
 u. Uncle Sam, 482. 
 Haswell a. Thorogood, 67. 
 Hatch V. Bartle, 101. 
 
 < . Blisset, 528. 
 
 V. Peugnet, 209. 
 ITatchett v. Gibson, 338. 
 Hathaway v. Brown, 475. 
 
 V. Nat. Life Ins. Co., 485, 486, 
 494, 497. 
 
 V. Roach, 581. 
 Hathorn v. King, 484. 
 Ilatton V. Jones, 177. 
 
 V. McClish, 191. 
 
 V. Robinson, 447. 
 Haugh V. Blytlie, 282. 
 Haughey v. Wright, 209. 
 Haven v. Green, 101. 
 Haver v. Tenney, 503. 
 Ilavis V. Barkley, 54. 
 Hawes u. New England &c. Ins. Co., 
 
 503. 
 Hawkesworth v. Showier, 44. 
 Hawkins v. Cree, 96. 
 
 V. Fall River, 482. 
 
 V. Grimes, 509. 
 
 V. Hawkins, 128. 
 
 V. State, 27, 476. 
 Hawks V. Baker, 388. 
 Haworth v. Wallace, 141. 
 Hawver v. Hawver, 28S. 
 Hay V. Hay, 283. 
 Haycock v. Greup, 509. 
 Hayden v. Boyd, 154. 
 
 V. Cornelius, 128. 
 
 (•• Loomis, 110. 
 
 u. McKnight, SO. 
 Hayes r. Caldwell, 432. 
 t. Gorham, 93. 
 
TABLE OF CASES. 
 
 xU 
 
 Hayes v. Grier, 113. 
 
 V. Parmalee, 271. 
 
 V. Va. Mut. Protection Assoc, 276. 
 Hayues v. Commonwealth, 371. 
 
 V. Heard, 187. 
 
 V, Hunsicker, 299. 
 
 V. Ledyard, 408. 
 
 V. Rowe, 188. 
 
 i.: State, 366. 
 Haynie i\ Baylor, 473'. 
 Hays V. Callaway, 167. 
 Hays V. Cheatliam, 370. 
 
 V. Hays, 244. 
 
 V. Eichardson, 299, 424. 
 Hayward v. Carroll, 191. 
 
 u. Poster, 402. 
 
 V. French, 192. 
 
 V. Knapp, 490, 504. 
 
 I. People, 428. 
 Hazard o. Irwin, 117. 
 
 V. Vickery, 509. 
 Hazleton v. Union Bank, 509. 
 Head v. Bogue, 116. 
 
 l: Hargrave, 511. 
 
 r. State, 326. 
 
 V. Teeter, 214. 
 Heald v'. Thing, 490, 492, 498. 
 Heard v. Pierce, 524. 
 Heartrunft r. Daniels, 129. 
 Heath v. Everson, 94. 
 
 V. Glisan, 498. 
 
 V. State, 26, 391. 
 Hebrew Cong. v. United States, 125. 
 Heckert v. Fegely, 42. 
 Hedges v. Boyle, 79. 
 Heely i;. Barnes, 295. 
 Heermance v. Vernoy, 134, 135. 
 Heffron v. Gallupe, 82, 458. 
 Helfenstein v. Leonard, 39. 
 Helm V. Cantrell, 402. 
 
 V. Franciscus, 189. 
 
 V. Handley, 350. 
 Helser v. McGrath, 408. 
 Hemenway v. Smith, 448. 
 Heming v. English, 140. 
 Hemingway v. Garth, 353. 
 Hemphill v. Townsend, 272. 
 Henarie v. Maxwell, 51. 
 Henderson v. Anderson, 87, 94. 
 
 V. Grouse, 144. 
 
 V. Hayne, 332. 
 
 V. Hydraulic Works, 409. 
 
 V. Jones, 370. 
 
 V. Simmons, 119. 
 Henderson v. State, 48, 154, 247, 345, 
 370. 
 
 Hendricks !■. Ebbitt, 61. 
 
 V. Kelly, 156. 
 
 V. Mount, 133. 
 Henegan v. United States, 153. 
 I-Ienisler v. Freedman, 527. 
 Henken v. Graman, 230. 
 Henman v. Dickinson, 277. 
 Hennessey v. Hennessey, 285. 
 Henry v. Bank of Salimi, 425, 428, 
 433. 
 
 V. Lee, 463, 467. 
 
 V. Morgan, 294. 
 
 V. Tiffany, 173. 
 Hepburn v. Cassel, 92. 
 
 V. Citizens' Bank, 319. 
 Herbert v. Herbert, 73. 
 Herman v. Drinkwater, 33, 34. 
 Hermitzman v. Diril, 66. 
 Herndon v. Givens, 78. 
 Herrick, Be, 531. 
 Herrick v. Odell, 193. 
 
 „. Smith, 370. 
 
 V. Whitney, 93. 
 Hershy v. Clarksville Institute, 125. 
 Hersom v. Henderson, 410. 
 Hescox V. Hendree, 298.' 
 Heskett v. Borden Mining Co., 55, 134. 
 Hess V. Fockler, 36. 
 
 V. State, 116, 507. 
 Hester «. Commonwealth, 340, 370, 
 378. 
 
 V. Hester, 283. 
 
 „. Wallace, 357. 
 Hewett V. Chapman, 82, 458. 
 Hewitt V. Crane, 205. 
 
 V. Levering, 88. 
 
 V. Prime, 447. 
 Hewlett V. Brown, 519. 
 
 (,■. Wood, 486. 
 Hey V. Commonwealthj 392. 
 Heydrick's Appeal, 227. 
 Heyward, Matter of, 101. 
 Heywood's Case, 455. 
 Heywood v. Reed, 368. 
 Hibbard v. Russell, 474. 
 Hibbs V. Blair, 454. 
 Hiee v. Cox, 355. 
 Hiekling v. Fitch, 116. 
 Hicks V. Bradner, 286. 
 
 u. Brennan, 531. 
 
 V. Person, 506, 510. 
 
 t'. Stone, 346. 
 
 V. Worth, 211. 
 Higbie v. Guardian Mutual Life Ins. 
 Co., 479, 486, 504. 
 
 i/. McMuUan, 453. 
 
xlii 
 
 TABLE OF CASES. 
 
 Eigdon V. Heard, 432, 437, 443. 
 
 V. Higdon, 266. 
 Higgins V. Dewey, 503. 
 
 u. Morrison, 79. 
 
 i'. People, 374. 
 Higginson's Case, 531. 
 Higgs V. Hanson, 202. 
 High V. Stainback, 294, 299. 
 Higham v. Gault, 338. 
 Higliberger v. Stiffler,. 101, 103, 455. 
 Hight V. Sackett, 212. 
 Highway, Matter of, 55. 
 Highway Comm'rs ['. Stockman, 125. 
 Hildebrandt v. Crawford, 214. 
 Hildeburn v. Curran, 346. 
 Hildreth v. Shepard, 353, 
 Hill, Ex parte, 68. 
 Hill V. Alvord, 219. 
 
 V. Barney, 56. 
 
 ,.-. Canfield, 131. 
 
 V. Frazier, 126. 
 
 .,. Heermans, 210, 211, 213. 
 
 , . Hill, 118. 
 
 V. Ilotchkin, 219. 
 
 V. Lafayette Ins. Co., 504. 
 
 V. McLean, 132. 
 
 u. Miller, 52. 
 
 c. Payson, 99. 
 
 V. Proctor, 269. 
 
 c. School District, 125. 
 
 ^. Sprinkle, 311. 
 
 V. State, 273, 427, 435, 467. 
 
 V. Sturgion, 504. 
 
 u. Sweetser, 91. 
 
 u. White, 532. 
 Hills !.•. Home Ins. Co., 491, 503. 
 Hilsey v. Palmer, 340. 
 Hilts V. Colvin, 19. 
 Himblewright v. Armstrong, 61. 
 Hinckley v. Walters, 93. 
 Hinds V. Barton, 206. 
 Hines v. State, 447. 
 Hinkle v. Eichleberger, 110. 
 1 1 in ton. Ex parte, 65. 
 Hipp !•• Ingram, 235. 
 Hirscli V. State, 435, 440. 
 Hisaw V. Sigler, 200. 
 Hitchcock V. Skinner, 206. 
 Hitt V. Rush, 322. 
 Hoadley i'. Hadlej', 177. 
 Hoagland v. State, 248. 
 Hoak f. Hoak, 129. 
 Hoard v. Peck, 493, 494. 
 Hobart v. Bartlett, 148. 
 
 V. Hobart, 215. 
 Hobby !J. Dana, 504. 
 
 Hobby V. Wisconsin Bank, 280, 
 Hobbs V. Davis, 324. 
 
 c. llussell, 185. 
 
 V. Stone, 192. 
 Hockless r. Mitchell, 137. 
 Hodge V. City of Buffalo, 208. 
 
 V. Coriell, 205. 
 
 V. Thompson, 74, 117. 
 Hodges V. Bales, 365. 
 
 V. Branch Bank at Montgomery, 
 270. 
 
 V. Nance, 530. 
 Hodgson V. Jeffreys, 176, 177. 
 Hoener v. Koch, 497. 
 Hoes V. Van Alstyne, 499. 
 Hoffman v. Smith, 459. 
 Hogan V. Reynolds, 393. 
 
 V. Sherman, 194. 
 
 V. Stone, 132. 
 Hoge V. Fisher, 497. 
 Hogeboom v. Gibbs, 228. 
 Hogg V. Breckenridge, 91. 
 Hogshead c. Baylor, 143. 
 Hoit V. Russell, 203. 
 Hoitt V. Moulton, 331. 
 Holbert v. State, 335, 370. 
 Holbrook i'. Cooley, 532. 
 
 I.-. Foss, 68. 
 
 V. Mix, 327, 357. 
 
 V. Trustees, 125. 
 Holcomb V. Holcomb, 3, 4, 210, 214. 
 Holden f. Robinson Jlf'g Co., 470! 
 
 V. Shore, 530. 
 Holdsworth v. Mayor of Dartmoutli, 
 
 352. 
 Holland v. Chambers, 117. 
 Hollis V. Calhoun, 108. 
 Hollister v. Young, 238. 
 IloUoway v. Com., 20, BOO. 
 
 V. Galloway, 293. , 
 HoUowell V. Simonson, 269. 
 Holman r. Arnett, 70. 
 
 c. Austin, 523. 
 
 I.'. Bachus, 452. 
 
 V. Kimball, 447. 
 
 u. Mayor, 523. 
 Holmes v. Anderson, 349. 
 
 V. Budd, 181. 
 
 t'. Chester, 205. 
 
 i;. Comegys, 459. 
 
 V. Johnson, 531. 
 
 «. State, 6. 
 
 I. Tenney, 189. 
 Holsenbake v. State, 257. 
 Hood 7'. Maxwell, 482. 
 Hook's Estate, 522. 
 
TABLE or CASES. 
 
 xliii 
 
 Hook !.•. Bixby, 182. 
 Hooker v. Johnson, 106, 208. 
 Hooper v. Hooper, 276. 
 
 V. Moore, 334. 
 
 V. Royster, 109. 
 Hoover v. Miller, 187. 
 Hope, The, 116. 
 
 Hopkins v. Ind. & St. L. E. R. Co., 
 489. 
 
 V. Leek, 355. 
 
 V. Smith, 270. 
 
 V. Waterhouse, 530. 
 Hopkinson v. Guildhall, 59. 
 
 V. Holmes, 101. 
 
 V. Steel, 80. 
 Hopper V. Commonwealth, 392, 397. 
 Horine v. Horine, 70. 
 Home V. Lord Bentinek, 457. 
 
 V. McKenzie, 460. 
 
 V. Memphis &c. R. R. Co., 121, 
 142. 
 
 V. Williams, 392, 493. 
 
 V. Young, 167. 
 Horner v. Speed, 413. 
 Horrell ;;. Parish, 186, 443. 
 Horry v. Glover, 57. 
 Horslman v. Kauffman, 443. 
 Horton v. Green, 498. 
 Hosack u. Rogers, 108, 271, 300. 
 Hosea ii. Kinney, 101. 
 Hosraer v. Burke, 180. 
 
 V. Warner, 192. 
 Hostetter v. Schalk, 228. 
 Hotaling ;;. Cronise, 39. 
 Hotchkiss V. Germania Ins. Co., 370. 
 Hottenstein's Appeal, 134. 
 Hough V. Cook, 482, 503. 
 Houghtaling v. Kilderhouse, 21. 
 Houghton V. Jones, 408. 
 
 V. Page, 00. 
 House V. Barber, 531. 
 
 u. Camp, 84. 
 
 V. Fort, 498. 
 
 V. House, 206. 
 Houston V. Prewitt, 61, 67. 
 Howard v. Brown, 51, 300. 
 
 V. Canfield, 464. 
 
 u. Chadbourne, 85, 86. 
 
 i;. Chamberlain, 405. 
 
 V. Cobb, 426, 432. 
 
 I). Coke, 75. 
 
 u. Copley, 447. 
 
 i-. Howard, 177. 
 
 ■.. McDonough, 468, 480. 
 
 V. Palmer, 194. 
 
 V. Patrick, 105, 345. 
 
 Howard v. Providence, 491, 510. 
 Howe V. Howe, 53. 
 
 V. Merrick, 192. 
 
 V. Scanncll, 134. 
 
 c. Thayer, 340. 
 
 V. Thompson, 97. 
 
 V. Wade, 110. 
 Howe Machine Co. i'. Soudor, 476. 
 Howell V. Ashmore, 337. 
 
 V. Auten, 90. 
 
 r. Blackwell, 531. 
 
 V. Commonwealth, 420, 428, 432, 
 433. 
 
 V. Taylor, 214, 486. 
 
 L-. Zerbee, 275. 
 Howerton v. Holt, 61. 
 
 V. Latimer, 222. 
 Howland v. Willetts, 208. 
 Howman v. Earle, 372, 
 Howser v. Commonwealth, 82, 205, 
 
 209, 458. 
 Howze V. State, 261. 
 Hoyle f. State, 378. 
 Hoys V. Tuttle, 59. 
 Hoyt p. A dee, 4. 
 
 V. L. I. R. R. Co., 505. 
 
 V. Wildfire, 51, 55. 
 Hubbard v. Chapin, 192. 
 
 V. Hubbard, 102, 392. 
 Hubbell's Case, 152. 
 Hubbell I'. Bissell, 340. 
 
 „: Grant, .301. 
 
 1. Hubbell, 226. 
 
 V. Noonan, 244. 
 
 V. Woolf, 105. 
 Huber v. Teuber, 319. 
 Hubler v. PuUen, 176. 
 Hubly !•. Brown, 56, 89. 
 Hubner v. Richardson, 89. 
 Huckins v. People's Ins. Co., 306. 
 Hudgin V. Hudgin, 71. 
 
 V. State, 476. 
 Hudnutt V. Comstock, 465. 
 Hudson, The, 116. 
 
 V. Crow, 295. 
 
 V. Draper, 504. 
 
 V. Hulbert, 73, 99. 
 Hudspeth v. Allen, 421. 
 Huff V. Bennet, 340, 454, 461. 
 
 V. Freeman, 88, 186, 187. 
 Huffman v. Cauble, 388. 
 Hugeley v. Holstein, 525. 
 Hughes V. Israel, 200. 
 
 V. Jackson, 26. 
 
 V. McClellan, 101. 
 
 V. Mulvey, 421. 
 
xliv 
 
 TABLE OF CASES. 
 
 Iluglies !,■■ Muscatine Co., 489. 
 
 L. State, 378. 
 
 V. Stokes, 278. 
 Hughey v. Eiclielberger, 231. 
 Iluidekoper v. Cotton, 81. 
 Huie V. O'ConncU, 281. 
 Hulett V. Hulett, 238. 
 Hull V. Fuller, 73, 
 Hulshart i\ Hart, 299. 
 Hume V. Scott, 329, 333. 
 Humplireans v. Parker, 403. 
 Humphrey, Ex Parte, 5, 175. 
 Humphries v. Dawson, 72. 
 
 V. Johnson, 512. 
 Hungerford v. Bourne, 75. 
 Hunscomb v. Hunscomb, 16. 
 Hunt V. Chambliss, 117. 
 
 V. Coe, 356. 
 
 ... Edwards, 90. 
 
 u. Fish, 355. 
 
 V. Hoboken &c. Co., 403. 
 
 u. Hunt, 484. 
 
 o. Lowell Gas Lt. Co., 492, 493. 
 
 o. McCalla, 435. 
 
 V. Moor, 111. 
 
 V. State, 48. 
 Hunter v. Commonwealth, 248. 
 
 u. Gatewood, 52, 116. 
 
 V. Kittredge, 238. 
 
 );. Lowell,"l88. 
 
 u. Marlborougli, 123. 
 
 u. State, 82. 
 
 V. Stevenson, 101. 
 
 0. Wetsell, 328, 355. 
 Huntington v. Champlain, 89. 
 Huntress v. Patten, 127. 
 Huot V. Wise, 286. 
 Hurd w. Brown, 106. 
 
 1). Fogg, 530. 
 
 V. Swann, 518. 
 Hurlbert v. Meeker, 173. 
 Hurst's Case, 528. 
 Hurst V. Burnside, 328. 
 
 V. Word, 117. 
 Hurtur v. Buford, 39. 
 Ilusted V. O'Donnell, 311. 
 Huteheiis v. Eden, 530. 
 Hutchins v. State, 531. 
 Hutchinson v. Methuen, 475. 
 
 V. Pettes, 142. 
 
 V. Wheeler, 338. 
 Hutton V. Williams, 154. 
 Hyman v. Bailey, 130. 
 Hyneman's Estate, 227. 
 Hynson v. Texada, 363. 
 
 Icehour v. Martin, 516, 517, 518. 
 Iglehart v. Jernegan, 473. 
 Hlinois &c. B. E. Co. v. Copeland, 
 33, 276. 
 
 V. Taylor, 33, 276. 
 
 «. Van Horn, 482. 
 
 V. Weldon, 172. 
 111. Cent. E. Co. v. Haskins, 312. 
 111. Mut. Fire Ins. Co. u. Marseilles 
 
 M'fg. Co., 71. 
 Imlay v. Eogers, 82, 458. 
 Indiana, The, 322. 
 
 Indiana &c. E. R. Co. <,. Gulick, 33. 
 Indianapolis &c. E. E. Co. t. Wag- 
 oner, 87. 
 Indianapolis &c. E'y Co. o. Anthony, 
 
 330. 
 Ingalls V. State, 376. 
 Ingersoll v. Ehoades, 68. 
 Inglebright v. Hammond, 296. 
 Ingram v. Smith, 137. 
 
 V. State, 406. 
 
 V. Watkins, 299. 
 Innis V. Miller, 297. 
 
 V. The Senator, 480. 
 Insurance Co. v. Throop, 460. 
 
 c. Wildes, 365, 469. 
 Ireland v. Stiff, 342. 
 Iron Mountain Bank y. ilurdock, 046. 
 Irvin V. State, 312. 
 Irwin V. Bear, 478. 
 
 V. Caryell, 138. 
 
 V. Shumaker, 44, 293. 
 Isbell V. Brown, 92. 
 Iselin V. Peck, 480. 
 Isler V. t)ewy, 223, 328, 367. 
 Ives V. Hamlin, 474. 
 Ivey V. Hardy, 27. 
 
 V. Phifer, 55. 
 
 J. 
 
 Jack V. Eussey, 284. 
 Jaquin i\ Davidson, 173. 
 Jacks 11. Bridewell, 197. 
 
 V. Nichols, 71. 
 Jackson D. Bank of United States, 127 
 
 V. Bard, 276. 
 
 V. Barron, Z^, 282, 296. 
 
 r. Britton, 131. 
 
 V. Brooks, 282. 
 
 c. Clopton, 156. 
 
 c. Davis, 35. 
 
 V. Delancy, 283. 
 
 V. Eaton, 132. 
 
 V. Etz, 370. 
 
TABLE OF CASES. 
 
 XiV 
 
 Jaekson v. French, 448. 
 
 u. Frier, 35. 
 
 t. Frost, 73. 
 
 V. Gridley, 6, 12. 
 
 ,\ Hallenback, 74. 
 
 u. Hills, 55. 
 
 V. Hillsborough, 123. 
 
 V. Hoagland, 531. 
 
 t. Hubble, 74. 
 
 V. Humphrey, 101, 455. 
 
 V. Inabinit, 409. 
 
 u. Jackson, 169. 
 
 c. Jones, 105. 
 
 V. Justices, 517. 
 
 u. Leek, 73. 
 
 0. Lewis, 330. 
 
 u. Loomis, 319. 
 
 V. McChesney, 85. 
 
 „. McLure, 214. 
 
 u. McVey, 807. 
 
 V. Miller, 267. 
 
 V. Nelson, 55, 78. 
 
 V. Ogden, 83. 
 
 V. Osborn, 19. 
 
 V. Parkhurst, 389. 
 
 V. Peck, 69. 
 
 V. Perlcins, 520. 
 
 V. Reeves, 271. 
 
 IK Rice, 131. 
 
 u. Root, 74. 
 
 v. Seager, 516. 
 
 V. SheWon, 74. 
 
 u. State, 378, 391. 
 
 u. Thomas, 353. 
 
 V. Trusdell, 84. 
 
 V. Varick, 408, 409. 
 
 V. Vredenbergh, 57, 83. 
 
 V. Williamson, 82. 
 Jacksonville &c. R. R. Co. ;•. Cald- 
 well, 322. 
 Jacob n. Lindsey, 460, 463, 
 .Jacobs V. Hesler, 453. 
 Jacobson v. Fountain, 124, 138, 140. 
 
 •J. Metzger, 405. 
 Jagoe V. Alleyn, 211, 212. 
 James, Ex parte, 268. 
 
 , , Bostwick, 18. 
 
 V. Brooke, 105. 
 
 ,,-. Finch, 505. 
 
 V. Hodsden, 504. 
 Jameson v. Dunkald, 493. 
 Janeway v. State, 341.. 
 Janvrin i'. Scammon, 431, 439. 
 Jaques v. Marquana, 62. 
 .Jaquith v. Liavidson, 183. 
 Jarboe v. Colvin, 72. 
 
 Jarden v. Davis, 93. 
 Jarvis v. Barker, 144. 
 Jefferson v. Stewart, 126. 
 Jeffersonville &c. R. R. Co. u. Lanham, 
 504. 
 
 V. Riley, 335. 
 Jencks, Re, 518. 
 Jenkins v. Eldredge, 422. 
 Jenkinson v. State, 446. 
 Jenks V. Opp, 177. 
 Jenner's Case, 7. 
 Jenness v. Berry, 145. 
 Jenney v. Delesdernier, 101. 
 Jennings !'. Estes, 299. 
 
 V. Fisher, 192. 
 Jernigan v. State, 378. 
 
 V. Wainer, 835. 
 Jesse V. StatCj 421. 
 Jessop r. Miller, 206. 
 .Tevne v. Osgood, 499. 
 .Jewet I'. Worthington, 148. 
 Jewett V. Adams, 101. 
 .Jewitt V. Davis, 91. 
 John V. McConnell, 116. 
 
 V. State, 366. 
 Johns !i. Bolton, 63. 
 Johnson's Case, 23. 
 Johnson, Ex parte, 531. 
 Johnson v. A. & N. P. R. R, Co., 531. 
 
 c. Alexander, 52, 295. 
 
 V. Ballew, 477. 
 
 V. Blackraar, 80, 61, 99. 
 
 V. Brown, 40, 333. 
 
 V. Carry, 159. 
 
 u. Chicago &c. R. R. Co., 343. 
 
 o. Coles, 196, 461. 
 
 V. Cox, 176. 
 
 u. Cunningham, 128. 
 
 c. Dexter, 238. 
 
 u. Donaldson, 426. 
 
 V. Durant, 50. , 
 
 V. Fitzhugh, 68. 
 
 u. Hall, 234. 
 
 V. Harth, 55, 101. 
 
 V. Heald, 190. 
 
 I'. Henderson, 40. 
 
 u. Johnson, 75, 276. 
 
 V. Kendall, 54, 299. 
 
 V. Lewis, 79. 
 
 u. Lightsey, 122. 
 
 u. Marsh, 187. 
 
 ■o. Mcintosh, 207. 
 
 V. Murchison, 149. 
 
 v. New York &c. R. R. Co., 321. 
 
 <■. Parks, 130. 
 
 V. Patterson, 370. 
 
xlvi 
 
 TABLE OF CASES. 
 
 Johnson v. People, 331. 
 
 u. Quarles, 200. 
 
 [■. Scribner, 320. 
 
 I'. State, 7, 25, 292, 319, 3.33, 333, 
 367, 375, 378, 391, 476, 483, 
 480, 607. 
 
 V. Thompson, 510. 
 
 V. Ward, 235. 
 
 V. Whidden, 119, .320. 
 
 i-. Wideman, 530. 
 
 r. Wiley, 337. 
 
 V. Worthy, 283. 
 Johnston v. Eskhart, 130. 
 
 u. Slater, 270. 
 Joice V. Branson, 207. 
 Jones, He, 268. 
 Jones !'. Abraham, .364. 
 
 <■. Bache, 102, 501. 
 
 u. Bank of Northern Liberties, 70. 
 
 V. Bassett, 268. 
 
 . . Brook, 89. 
 
 V. Brownfield, 72. 
 
 V. Childs, 473. 
 
 V. Church of Eochester, 02. 
 
 V. Clark, 85. 
 
 V. Coolidge, 87. 
 
 u. Fleming, 91, 362. 
 
 V. Fletcher, 110. 
 
 V. Fulgham, 321. 
 
 V. Hake, 97. 
 
 i^. Harris, 12. 
 
 f. Hatchett, 473. 
 
 u. Henry, 223. 
 
 u. Iloey, 362. 
 
 V. Hoskins, 54. 
 
 V, Huggins, 506. 
 
 i,. Jones, 27, 78. 
 
 u. Kirksey, 129. 
 
 V. Kreauss, 529. 
 
 V. Love, 130, 160. 
 
 c. Lowell, 122. 
 
 V. Mason, 17. 
 
 o: Matthews, 98. 
 
 ;;. McLuskey, 154. 
 
 c. McNeil, 32. 
 
 V. McEay, 115. 
 
 u. M. E. Church, 212. 
 
 V. Merrimack Eiver Lumber Co., 
 480. 
 
 V. Norton, 268. 
 
 u. Paine, 116, 140. 
 
 u. Park, 133. 
 
 V. Patterson, 132. 
 
 V. People, 352. 
 
 V. Plunckett, 231. 
 
 V. Post, 52. 
 
 V. Sherman, 197. 
 
 (. Simpson, 188. 
 
 K. Sinclair, 110. 
 
 V. Sosser, 128. 
 
 V. State, 17, 27, 48, 83, 300, 308, 
 377, 378. 
 
 V. Stroud, 464. 
 
 V. Tevis, 294. 
 
 V. Tucker, 488, 490, 491. 
 
 V. Turpin, 82. 
 
 I. Wolcott, 192. 
 Jordaine v. Laslibrooke, 87, 93. 
 Jordan v. Cooper, 36. 
 
 u. Henderson, 269. 
 
 V. Jordan, 154. 
 
 V. Owen, 154. 
 
 V. Pollock, 51. 
 
 V. Smith, 26. 
 
 c: Trumbo, 117. 
 
 c. Young, 146. 
 Josey V. Wilmington &c. E. E. Co., 
 
 146. 
 •Toy V. Hopkins, 481. 
 .Joyce V. Maine Ins. Co., 503. 
 .Judge of Prob,ate v. Green, 424. 
 Judson, Ex parte, 517. 
 
 „. Blanchard, 36, 372. 
 .Jumperty v. People, 509. 
 Juniata Bank v. Beale, 101. 
 
 V. Brown, 92. 
 Junkins v. Lovelace, 156. 
 Jupp V. Andrews, 516. 
 Justices V. House, 101. 
 Juzan V. Toulmin, 56. 
 
 K. 
 
 Kaime v. Omro Trustees, 285. 
 
 ICale V. Elliott, 215, 219. 
 
 Kaler v. Builders' &c. Ins. Co., .345. 
 
 Ivalikoff V. Zoehrlant, 370. 
 
 Ivansas Pacific E. E. Co. c. Miller, 
 
 480. 
 Kansas Pacific E'y Co. v. Little, 310. 
 Ivapp V. Bartham, 106. 
 Karney v. Paisley, 271. 
 Karns v. Tanner, 227. 
 Kavanagh v. Wilson, 310. 
 Ivaywood v. Barnett, 119. 
 Iveaton v. McGwier, 270. 
 Keator «. Dimmick, 284. 
 
 i: People, 334. 
 Kecheley r. Cheer, 130. 
 Jvecch V. Cowles, 180. 
 
 c. State, 25. 
 ICeen t-. Sprague, 103. 
 Keener ik State, 473. 
 
TABLE OF CASES. 
 
 xlvii 
 
 Keep V. Griggs, 269. 
 Keer i>. Clark, 119. 
 Keeteringhara v. Dance, 331. 
 Kehoe v. Com., 19, 49. 
 Keim v. Taylor, 128. 
 Keiser v. Moore, 74. 
 Keith V. Tilford, 503. 
 
 V. Wilson, 392. 
 
 V. Woombell, 425, 
 Keithler v. State, 197. 
 Kellar v. Roberts, 428. 
 Keller v. N. Y. Cent. R. R. Co., 480. 
 
 V. Vernon, 286. 
 Kelley v. Drew, 268. 
 
 V. Merrill, 413. 
 
 V. Miller, 110. 
 Kellogg V. Schuyler, 68. 
 Kelly V. Board of Public Works, 239. 
 
 V. Brooks, 300. 
 
 ... Lank, 101, 116. 
 
 V. Ledoux, 186. 
 
 V. Proctor, 266, 331, 333. 
 
 c. State, 28, 331. 
 Kelton r. Hill, 189. 
 
 V. Jacobs, 233. 
 Kemmerer v. Edelman, 398. 
 Kemp V. Bowley, 70. 
 
 V. Dovvnham, 267. 
 Kemper v. Victoria, 123. 
 Kendall v. Field, 74. 
 
 o. Grev, 451. 
 
 V. May, 192, 482. 
 
 V. Robertson, 192. 
 
 V. Stone, 464. 
 Kendrick v. Com., 442. 
 Kennebeck Purchase v. Call, 114. 
 Kennedy v. Barnett, 57 
 
 u. Bossiere, 52. 
 
 o. Conn, 140. * 
 
 V. Evans, 37, 41, 50, 117, 146. 
 
 V. Gooding, 192. 
 
 V. Kennedy, 319. 
 
 V. Lancaster County Bank, 98. 
 
 r. Wiles, 38, 43. 
 
 V. People, 489, 4C7. 
 
 ... Philipy, 42. 
 
 u. Reynolds, 84. 
 
 V. Wright, 530. 
 Kenner v. Peck, 180. 
 Kennon v. M'Rae, 51, 93, 143, 147. 
 Kenny v. Van Horn, 500. 
 Kensington v. Ingles, 460, 405. 
 Kent V. Mason, 173, 460. 
 
 r. Tyson, 113. 
 Keran i: Trice, 239. 
 Kermott v. Ayer, 481. 
 
 Kern v. South St. Louis &c. Ins. Co., 
 
 504. 
 Kernin v. Hill, 509. 
 Kerr v. Cotton, 114. 
 
 V. McGuire, 214, 481. 
 Kerrains v. People, 252, 394. 
 Kersh v. State, 55. 
 Kershaw v. Wright, 483. 
 Kessler v. Mauney, 223. 
 Ketcham v. Hill, 61. 
 Ketchingman v. State, 330. 
 KeteltGs V. Penfold, 45. 
 Keutgen v. Parks, 355. 
 Key V. Jones, 156. 
 Keys V. Baldwin, 283. 
 Kibler it. Mcllwain, 409. 
 Kiernan v. Abbott, 440. 
 Kifer v. Brenneman, 110. 
 Kilbourne v. Jennings, 492. 
 Kilburn v. Mullen, 3, 330. 
 Kile V. Graham, 91. 
 Killen v. Lide, 156. 
 Kilmer v. O'Hara, 207. 
 Kilpatrick v. Strozier, 168. 
 Kimball v. Baxter, 238. 
 
 V. Gearhart, 139. 
 
 „. Kimball, 52, 194. 
 
 I.. Lamson, 43. 
 
 r. Thompson, 46, 118, 294. 
 Kimbrough v. Mitcliell, 267. 
 Kimmel ;•. Kiramel, 329, 331. 
 Kinchelow v. State, 318, 378. 
 King V. Atkins, 409. 
 
 V. Bailey, 86. 
 
 ,;. Dixon, 526. 
 
 u. Donaliue, 510. 
 
 V. Eaber, 405. 
 
 i\ Erancis, 371. 
 
 V. Hastings, 378. 
 
 ,... Howard, 192. 
 
 V. Inhab. of All Saints, 277. 
 
 f. Inhab. of Bathwick, 277. 
 
 V. Inhab. of Cliviger, 277. 
 
 C-. Jones, 378. 
 
 V. King, 78. 
 
 V, Lowry, 40, 43. 
 
 V. Moore, 48. 
 
 V. Neely, 102. 
 
 V. N. Y. Cent. &c. R. R. Co., 478. 
 
 o. Olroyd, 353. 
 
 u. Plakman, 334. 
 
 u. Tarleton, 55. 
 
 V. Woodbridge, 503. 
 
 V. Worthington, 173. 
 Kingfield v. Pullen, 531. 
 Kingsburry i'. Buchanan, 50, 295. 
 
xlviii 
 
 TABLE OP CASES. 
 
 Kingsbury v. Smith, 134. 
 Kingston v. Tappan, 421. 
 Kinlocli V. Palmer, 137. 
 Kinne v. Kinue, 484. 
 Kinner v. State, 306. 
 Kinney v. Flynn, 309. 
 Kinsley v. Eobinson, 89. 
 Kinzer v. Mitcliell, 110. 
 Kinzey v. King, 519. 
 Kip, Matter of, 125, 424, 425. 
 Kipner i\ Biebl, 488. 
 Kirby, Ex parte, 432. 
 Kirchner v. Lewis, 177. 
 Kirk V. Ewing, 145. 
 
 V. Hodgson, 41. 
 Kirkland v. Carr, 116. 
 Kirkpatrick c. Cisna, 114. 
 Kirksey v. Bates, 113. 
 
 u. Dubose, 74. 
 
 0. Kirksey, 78, 509. 
 Kirschner v. State, 20, 439, 440. 
 Kirtland v. Harris, 187. 
 Kisling V. Shaw, 283. 
 Kissain v. Forrest, 406. 
 Kitchen v. liobbins, 33. 
 Kittering v. Parker, 307. 
 Kittredge v. Russell, 402. 
 Klason v. Rieger, 311. 
 Klein v. Dinkgrave, 20, 21. 
 Kleinmann v. Boernstein, 90. 
 Klenk v. Knoble, 276. 
 Kline r. Beebe, 74. 
 Klock v. State, 393. 
 Klockenbaurei v. Pierson, 146. 
 Knapp II. Haskall, 386. 
 
 V. Sachet, 115. 
 
 v. Smith, 398. 
 Kneeland v. State, 442. 
 Knerr v. Hoiiman, 142. 
 Knester v. Keck, 84. 
 Knick V. Knick, 239. 
 Kniffln v. jMcConnell, 373. 
 Knight V. Brown, 188. 
 
 V. Cunnington, 406. 
 
 0. House, 334. 
 
 1 . Lee, 452. 
 
 V. Packard, 30, 94. 
 Knights V. Putnam, 94. 
 Knode v. Williamson, 333. 
 Knoeble v. Kircher, 91. 
 Knoll V. State, 343. 
 Knowles v. Parrot, 89. 
 
 u. Stewart, 98. 
 Knox V. Thompson, 187. 
 Kobbe V. Landecker, 97. 
 Koehler v. Adler, 327, 
 
 Koehucke v. Boss, 319. 
 Koenig v. Bauer, 420. 
 
 V. Katz, 244. 
 Koller V. Pfirth, 21. 
 Kornegay v. Salle, 91. 
 Kosler v. Noonan, 504. 
 Kottwitz V. Bagby, 306. 
 Krause v.. Eeigel, 110. 
 Kraushaar v. Meyer, 214. 
 Kronk v. Kronk, 73. 
 Krum I). Beard, 62. 
 Kuhlman v. Medlinka, 391. 
 Kurschner v. State, 427. 
 Kyle V. Bostick, 148. 
 
 V. Frost, 269. 
 
 L. 
 
 La Beau v. People, .346. 
 
 Lackey v. Stouder, 133. 
 
 Laeoek v. Commonwealth, 227. 
 
 Lacon v. Higgins, 65. 
 
 Ladue v. Van Vechten, 40, 207. 
 
 La Farge v. Exchange &c. Ins. Co., 
 
 207, 219. 
 La Fontaine v. Underwriters, 442, 522. 
 Laftin v. Nally, 135. 
 Lagrosse v. Curran, 530. 
 Lahey v. Heenan, 227. 
 Lake v. Auborn, 146. 
 
 V. Mumford, 127. 
 
 V. People, 498. 
 Lamalere v. Caze, 348. 
 Lamar v. Simpson, 86. 
 
 f. Williams, 197. 
 Lamb v, Coe, 531. 
 
 V. Fox, 91. 
 
 u. Muiister, 440. 
 
 V. Stewart, 339. 
 Lambden v. Conoway, 101. 
 Lamoure i\ Caryl, 482. 
 Lampley v. Scott, 36. 
 Lamprey v. Munch, 407. 
 Lampton's Succession, 187. 
 
 V. Lampton, 111. 
 Landisi'. Landis, 79. 
 Landsberger v. Gorliam, 408. 
 Lane ;■. Bryant, 049. 
 
 V. Cole, 526. 
 
 „■. Lane, 218. 
 
 c\ Padelford, 87, 96. 
 
 V. Wilcox, 508. 
 Langhornet). Commonwealth, 334, 337. 
 Langley v. Dodsworth, 173. 
 Lankford v. Keith, 115. 
 Lannahan v. Multnomah Countj', 581. 
 Lanning v. Lanning, 205. 
 
TABLE OF CASES. 
 
 xlix 
 
 Lanplcy v. Scott, 55. 
 Lansingburg v. Willard, 57. 
 Lapene v. Kiche, 187. 
 Lapliam v. Atlas Ins, Co., 504. 
 Laramore v. Minish, 311. 
 Largan v. Central R. R. Co., 474. 
 Larrabee v. Wood, 266, 267. 
 La Rue v. Boughaner, 79. 
 Lassiter v. State, 392. 
 Latham v. Dixon, 223. 
 
 V. Kenniston, 106. 
 Lathrop v. Clapp, 526. 
 
 u. Hopkins, 215. 
 Latimer v. Eglin, 500. 
 
 V. Sayre, 71. 
 Latshaw v. Territory, 47. 
 Laugblin v. State, 374, 391. 
 Laughran v. Kelly, 325. 
 Laurent v. Vaughn, 503. 
 Law V. Merrills, 420. 
 
 V. Payson, 304. 
 
 V. Scott, 457, 477. 
 Lawrence v. Baker, 410. 
 
 V. Barker, 355, 467. 
 
 V. Dana, 504. 
 
 c. Houghton, 388. 
 
 u. Lanning, 339. 
 
 V. Maxwell, 323. 
 
 V. Senter, 135. 
 
 u. Vilas, 245. 
 Lawson v. Glass, 460. 
 
 V. Jones, 220. 
 
 V. Salem Bank, 224. 
 
 ,;. State, 332. 
 Lay V. Hayden, 74. 
 
 V. Lawson, 283, 301. 
 Layer's Case, 329. 
 Lazare v. Jacques, 103. 
 Lazier v. Commonwealth, 48. 
 Lazzell v. Mapel, 241. 
 Lea V. Henderson, 431. 
 Leach v. Fowler, 271. 
 
 V. Kelsey, 293, 300. 
 
 «. Shelby, 269. 
 Leaphart v. Leaphart, 273. 
 Leaptrot v. Robertson, 168. 
 Learey v. Littlejohn, 79. 
 Leasman v. Nicholson, 180. 
 Leavenworth i'. Pope, 117. 
 Leavitt v. Bangor, 275. 
 
 V. Baldwin, 68. 
 
 V. Stansell, 408. 
 Leavy v. Dearborn, 400. 
 Le Baron v. Crombie, 17. 
 Le Barron, Re, 219. 
 
 V. Redman, 297. 
 
 Leckey v. Bloeer, 476. 
 Lecky v. Cunningham, 110. 
 Le Clair v. Peterson, 57. 
 Lee V. Birrell, 458. 
 
 V. Dill, 78. , 
 
 V. Murray, 109. 
 
 V. Quick, 172. 
 
 V. State, 48, 416. 
 
 V. Tinges, 397. 
 Leech v. Kennedy, 118. 
 Leet V. Wilson, 159. 
 Leetch v. Atlantic Mut. Ins. Co., 390. 
 Lefferts v. De Mott, 106, 140. 
 Legee v. Burbank, 62. 
 Legg V. Drake, 413. 
 
 V. McNeill, 300. 
 Leggett V. Boyd, 268. 
 
 ... Grover, 223. 
 
 <■. Potter, 186. 
 Legrand v. Bedinger, 528. 
 Leib V. Childs, 75. 
 Leibig v. Steiner, 324. 
 Leigh V. Hodges, 530. 
 Leighton v. Perkins, 141. 
 
 V. Sargent, 497. 
 
 V. Twombly, 532. 
 Leiper v. Gewin, 70. 
 
 V. Peirce, 144. 
 Leitch V. Atlantic Mut. Ins. Co., 504. 
 Leland v. Kauth, 337. 
 
 I. Wilkinson, 500. 
 Lemasters v. State, 47. 
 Lemay v. Walker, 154. 
 Le Mere v. McHale, 533. 
 Lemon v. Hornsby, 168. 
 
 V. State, 120. 
 Lemore v. Nuckolls, 78. 
 Lenox v. Fuller, 331. 
 Leo, The, 531. 
 Leominster v. Fitchburg &c. R. R. 
 
 Co., 127. 
 Leonard v. Green, 270. 
 
 V. Sutphen, 205. 
 
 V. Wildes, 96. 
 Leonore v. Bishop, 368. 
 LeRoy v. Johnson, 142. 
 Leslie v. Sims, 79. 
 Lester v. McDowell, 301. 
 
 V. Pittsford, 473. 
 
 V. White, 74. 
 Letson v. Dunham, 98. 
 Leverett v. Stegall, 146. 
 Leverick v. Bossier, 111. 
 
 V. Frank, 333. 
 Levering v. Langley, .300. 
 Levers v. Van Buskirk, 79. 
 
1 
 
 TABLE OF CASES. 
 
 Levi V. State, 413. 
 Levistones v. Marigny, 186. 
 Levy V. Hawley, 199. 
 Lewis, Re, 427. 
 
 V. Bacon, 473. 
 
 e. Carsaw, 90. 
 
 V. Eagle Ins. Co., 10, 482. 
 
 v. Eastern Bank, 127. 
 
 V. Fort, 223. 
 
 V. Hodgdon, 56, 319, 352. 
 
 V. Ingersoll, 366. 
 
 u. Lewis, 318. 
 
 V. Manley, 51. 
 
 V. McDougall, 267. 
 
 u. Morse, 295. 
 
 I). Owen, 143. 
 
 u. Piercy, 68. 
 
 V. Post, 106. 
 
 V. San Antonio, 124. 
 
 0. State, 341, 367. 
 
 V. Steiger, 347. 
 
 V. Trickey, 482. 
 
 V. Wake County, 524. 
 
 V. Weiseham, 200. 
 Lights' Appeal, 311. 
 Lightner v. Martin, 56. 
 Ligon V. Dunn, 100. 
 Lillie V. "Wilson, 71. 
 Limpus V. State, 70. 
 Lincoln v. Battelle, 500. 
 
 V. Fitcli, 93, 94. 
 
 V. Inhab. of Barre, 401, 501. 
 
 V. Lincoln, 192, 285. 
 Lincoln Ave. Eoad Co. v. Mailans, 
 
 272. 
 Lindauer v. Delaware Ins. Co., 478. 
 Lindo, Ex parte, 482. 
 Lindsay v. Lamb, 134. 
 
 i: People, 25, 497. 
 Lindsley v. Malone, 144. 
 Lindwell v. Sandwell, 469. 
 Lines V. Lines, 180. 
 Lingan v. Henderson, 37. 
 Lingo V. State, 282. 
 Linn v. Sigsby, 475. 
 Linsel v. State, 101, 
 Linsley v. Lovely, 54, 115, 140, 408. 
 Linton v. Ford, 63, 101. 
 
 I/. Hurley, 498. 
 Linz V. Massachusetts Ins. Co., 449. 
 Lipe V. Eisenlerd, 336. 
 Lipscomb v. Kitrell, 116. 
 Lisle V. Commonwealth, 247. 
 Lisman v. Early, 271. 
 Lister v. Boker, 439. 
 Litchfield v. Merritt, 192. 
 
 Little V. Beazley, 509. 
 
 !.. Clarke, 106. 
 
 V. Gibson, 20. 
 
 V. Hazzard, 39. 
 
 V. Larrabee, 82. 
 
 V. Little, 192. 
 
 V. Riley, 142. 
 
 V. Rogers, 90. 
 
 V. Todd, 531. 
 Littlefield v. Portland, 122. 
 
 V. Rice, 279. 
 Littler v. Smiley, 177. 
 Livingstone's Case, 496. 
 Livingston v. Bird, 37. 
 
 0. Keech, 409, 413. 
 
 V. Kiersted, 3. 
 
 V. Maryland Ins. Co., 500. 
 
 V. Swannick, 116. 
 Livingstone v. Lucas, 521. 
 Lloyd V. Freshfleld, 459, 463. 
 
 V. Higbee, 73. 
 
 V. Thompson, 408. 
 
 V. Williams, 46. 
 Locke V. N. Amer. Ins. Co., 62. 
 
 V. Noland, 281. 
 
 v. Noyes, 92, 109. 
 Locket V. Child, 66. 
 Lockett V. Mims, 402. 
 
 V. State, 445. 
 Lockhart v. Bell, 222. 
 
 V. Luker, 268. 
 Lockwood V. Canfield, 62. 
 
 V. Joab, 275. 
 
 V. Mills, 283. 
 
 v. State, 524. 
 Lodge V. Pipher, 509. 
 Loftin V. Nally, 57. 
 Logan V. McGinnis, 484. 
 Lohman v. People, 365, 427. 
 Loker v. Haynes, 99. 
 London &c. Soc. v. Hagarstown &c. 
 
 Bank, 42, 61. 
 Londoners. Lichtenheim, 15. 
 Lonergan t: Royal Exchange Assur- 
 ance, 532, 533. 
 Long V. Bailie, 53, 54. 
 
 V. Giles, 313. 
 
 V. Hitchcock, 341. 
 
 u. Lamkin, 338. 
 
 V. McDonald, 168. 
 
 f. Morrison, 329. 
 
 V. Ray, 100. 
 
 V. State, 16, 254. 
 
 V. Steiger, 396, 397. 
 
 V. Story, 107. 
 
 V. Taylor, 333. 
 
TABLE OF CASES. 
 
 Longston v. State, 8. 
 
 Look I'. Bradley, 1^4. 
 
 Looker ;;. Davis, 199. 
 
 Loomis D. Loomis, 105. 
 
 Loop V. Gould, 519. 
 
 Lopez V. State, 375. 
 
 Lord V. State, 291. 
 
 Lord Cardigan's Case, 437. 
 
 Lord Macclesfield's Case, 432. 
 
 Lothrop V. Wightman, 72. 
 
 Lott V. Burrill, 525. 
 
 V. Macon, 420. 
 
 V. Sandifer, 299, 523. 
 Loud V. Pierce, 134. 
 Louis V. Easton, 155. 
 
 V. State, 316. 
 Love V. Stone, 197. 
 Lovejoy v. Jones, 203. 
 Lovelady v. State, 494. 
 Lovett I'. Adams, 100. 
 
 V. Casey, 235. 
 Low's Case, 80. 
 Low's Estate, 452, 453. 
 Low V. Connecticut &c. R. R. Co., 481. 
 
 V. Smart, 119. 
 Lowe V. Ganby, 181. 
 
 V. Hughes, 270. 
 
 u. Lowe, 396. 
 
 V. Massey, 311. 
 
 V. Williamson, 484. 
 Lowney v, Perhani, 424. 
 Lowry v. Hardwick, 69. 
 
 !). Harris, 473. 
 Lowrys v. Candler, 168. 
 Lucas V. Brooks, 268. 
 
 V. Cassady, 101. 
 
 V. riynn, 338. 
 
 V. Payne, 29. 
 
 V. Spencer, 130. 
 
 c. State, 287. 
 Luce V. Dorchester Ins. Co., 504. 
 Lucre v. State, 48. 
 Ludlow V. Union Ins. Co., 53. 
 Ludwig !'. Meyre, 61. 
 Lufkin V. Haskell, 124. 
 
 V. Patterson, 109. 
 Lumpkin v. State, 375, 378, 477. 
 Lunay v. Vantyne, 278. 
 Lunday v. Thomas, 407. 
 Lung V. Sims, 176. 
 Luning v. State, 475. 
 Lupton V. Lupton, 111. 
 Lush V. McDaniel, 477. 
 Luther v. Skeen, 413. 
 Lutterel v. Reynell, 368. 
 Luttrell V. State, 397. 
 
 Luyten v. Haygood, 136, 2.30. 
 Lyford v. I'arrar, 21. 
 Lyles V. Lyles, 370. 
 Lynch v. Pyne, 305. 
 Lyne, Ex parte, 528. 
 Lyon V. Boilvin, 98. 
 
 M, Daniels, 105. 
 
 V. Lyman, 510. 
 
 V. Lyon, 373. 
 
 V. Tallmadge, 393. 
 
 a. Wilks, 582. 
 Lyon Co. Comm'rs v. Chase, 531. 
 Lytle V. Bond, 116. 
 
 M. 
 Macay, Ex parte, 100, 223. 
 Macdonald v. Garrison, 329. 
 Macheca v. Avegno, 131. 
 Mack V. State, 305. 
 Mackin v. Mackin, 206. 
 Mackinley v. McGregor, 58. 
 Macomber v. Scott, 507, 509, 510. 
 Macondary v. Wardle, 268. 
 Macy V. Be Wolf, 109. 
 Madden v. Farmer, 63, 65. 
 
 V. Koester, 345. 
 Madigan v. Degraff, 464. 
 Madison v. Wells, 199. 
 Madison Ins. Co. a. Mitchell, 91. 
 Maduel v. Mousseau, 187. 
 Magehan v. Thompson, 327. 
 Magemau v. Bell, 202. 
 Magness v. Walker, 278. 
 Maher v. People, 257. 
 Mahone v. Yancey, 133. 
 Main v. Newson, 128, 138, 298. 
 
 ^. Stephens, 270. 
 Maine Stage Co. v. Longlely, 66. 
 Majors v. State, 329. 
 Malin v. Malin, 307. 
 Mallet V. Mallet, 296. 
 Mallory v. Leiby, 183. 
 Manaway v. State, 113. 
 Manchester v. Manchester, 260. 
 Manchester Bank v. Moore, 43. 
 
 V. White, 127. 
 Manchester Iron Co. u. Sweeting, 294. 
 Manifee v. Conn, 131. 
 Manioii v. Lambert, 185. 
 Manley v. Shaw, 80. 
 Mann v. Arkansas Valley &c. Co., 319. 
 
 V. Cooper, 145. 
 
 i;. Cross, 362. 
 
 V. Drost, 119. 
 
 u. Swann, 94. 
 
 V. State, 287. 
 
Hi 
 
 TABLE OF CASES. 
 
 Mann v. Yazoo City, 124. 
 Manning v. Manning, 90. 
 
 V. Wlieatland, 90. 
 Mant V. Mainwaring, 43. 
 Marbury ;>. Madison, 424. 
 March v. Harrall, 309, 370. 
 Marcly v. Schultz, 408. 
 Marcy v. Barnes, 507. 
 
 V. Sun Ins. Co., 478, 504. 
 Marine Bank v. Ferry, 91. 
 Mariner v. Dyer, 30. 
 Marionneaux v. Edwards, 187. 
 Markel v. Spitter, 177. 
 Markell v. Benson, 210. 
 Markham v. Carothers, 145. 
 Markley v. Swartzlander, 409. 
 Marks v. Butler, 29, 101. 
 Markwell v. Warren County, 531. 
 Marler v. State, 24, 48, 375, 377, 416, 
 
 445. 
 Marquand v. Webb, 109. 
 Marquette &c. R. R. Co. r. Kirkwood, 
 
 311. 
 Marre v. Ginochio, 72. 
 Marsh v. Berry, 40. 
 
 V. Branch Bank at Mobile, 515. 
 
 V. Brown, 216, 218. 
 
 0. Gilbert, 214. 
 
 u. Marsh, 285. 
 
 V. Potter, 271. 
 Marshall v. Carhart, 528. 
 
 V. Davis, 419. 
 
 ... Franklin Bank, 117, 145. 
 
 V. Morrissey, 411. 
 
 V. Peck, 276. 
 
 V. Riley, 431. 
 
 V. State, 48, 333. 
 
 ... Thrailkill, 91. 
 Marsman v. Conklin, 270. 
 Marston v. Downes, 437. 
 Martin v. Asher, 177. 
 
 ... Barnes, 338. 
 
 V. Eldin, 405. 
 
 V. Farnum, 337, 338, 339. 
 
 V. Hough, 118. 
 
 V. Jones, 200. 
 
 V. Kelly, 133. 
 
 V. Maguire, 510. 
 
 u. Martin, 331. 
 
 11. Mitchell, 79, 142. 
 
 V. State, 362. 
 
 .;. Wallis, 510. 
 Marvin v. Dutcher, 196. 
 Marwick v. Georgia, 52. 
 Marx !'. Bell, 345. 
 
 V, Hilsendeger, 337. 
 
 Marx V. People, 249. 
 
 Marysville v. Schultz, 123. 
 Mask «. City of Buffalo, 532. 
 
 V. Smith, 46. 
 
 ... State, 290, 331, 409. 
 Mason v. Fuller, 498. 
 
 V. McCormick, 222, 223. 
 
 V. Poulson, 191. 
 
 V. Tallman, 409. 
 
 u. Wood, 2.39. 
 Masonic Mut. Benefit Assoc, r. Beck, 
 
 449. 
 Massey v. Farmers' Bank, 334. 
 
 .;. Hackett, 402. 
 
 V. Walker, 474. 
 Massure v. Noble, 478. 
 Master v. Zimmerman, 79. 
 Masters v. Varner, 52. 
 Matheny v. Westfall, 96. 
 Mather v. Clark, 36. 
 Mathes r. Bennett, 530. 
 Mathews v. Marchant, 148. 
 
 V. Yerex, 286. 
 Mathilde v. Levy, 322. 
 Mathis V. Buford, 394, 396. 
 Matteson v. N. Y. &c. R. R. Co., 276. 
 Matthew's Estate, 447. 
 Matthews ;;. Coalter, 139. 
 
 V. Hayden, 121. 
 
 V. Poythress, 320. 
 
 V. Story, 311. 
 Matthewson v.. Burr, 333. 
 Mattocks V. Lyman, 468. 
 Mattoon v. Young, 219. 
 Maugham v. Hubbard, 403. 
 Maulby, Ex parte, 524. 
 Maunsell v. Ainsworth, 510. 
 Mauran v. Lamb, 31, 116, 423, 525. 
 Mauray v. Mason, 141. 
 Maverick v. Eighth Ave. R. R. Co., 
 276. 
 
 (/. Marvel, 209. 
 Mawson v. Hartsink, 334. 
 Maxwell v. Re vis, 510. 
 
 ... Warner, 402. _ 
 
 .-. Wilkinson, 468. 
 May V. Bradlee, 485. 
 Maynard v. Nekervis, 92. 
 Mayo V. Avery, 95. 
 
 V. Gray, 299. 
 
 V. Mayo, 443. 
 Mayor &c. o. Butler, 50. 
 
 V. Wright, 123, 124. 
 Mayor See. of N. Y. .;. Butler, 4.55. 
 
 Mayor of Colchester r. , 126. 
 
 Maysville v. Shultz, 123. 
 
TABLE OF CASES. 
 
 liii 
 
 McAffee v. State, 361. 
 McAllister v. McAllister, 609. 
 M'AUister v. Williams, 296. 
 McAuley v. York Mining Co., 126. 
 McBride v. Cicotte, 194, 403. 
 McCabe v. Hand, 53. 
 
 V. Morehead, 133. 
 McCagne v. Miller, 452, 
 McCall V. Sinclair, 91. 
 
 V. Smith, 52. 
 McCalla v. State, 377. 
 McCampbell v. Henderson, 235. 
 McCann v. Atherton, 173. 
 McCargo v. Crutcher, 154. 
 McCarron v. Cassidy, 135. 
 McCartney v. Spencer, 183. 
 McCaskey v. Graff, 54. 
 McCausland's Estate, He, 160. 
 M'Causland v. Neal, 53, 143. 
 
 v. Ralston, 460, 461. 
 McClackey i;. State, 485. 
 McClain v. Gregg, 74. 
 McClellan v. State, 372. 
 McClelland v. West, 227. 
 McCiintock v. Tara, 478. 
 
 V. Whittemore, 365. 
 McClung V. Spotswood, 103. 
 McClure v. King, 71, 187. 
 
 v. Whitesides, 115. 
 McCollem u. White, 271. 
 McCollum V. Hubbert, 101. 
 M'Conahy v. Kessler, 84. 
 McConnell v. Martin, 276. 
 
 V. McCraken, 61. 
 
 V. New Orleans, 473. 
 McCormick v. Bailey, 83. 
 
 V. MulvihiU, 465. 
 
 V. Penn. Centr. R. R., 468. 
 
 V. R. R. Co., 460. 
 McCoy V. Ayers, 240. 
 McCracken v. West, 418. 
 McCrary v. Rash, 155. 
 McCreelis v. Hinkle, 119. 
 McCuUem v. Seward, 482. 
 McCuUock V. Tyson, 118. 
 McCuUough V. McCullough, 75, 283, 
 
 324. 
 McCurdy v. Terry, 137, 147. 
 M'Cutehen v. M'Cutchen, 366. 
 McCutchen v. I'ique, 10. 
 McCutchin v. Rice, 197. 
 McDanial v. State, 364. 
 Ai'Daniel's Will, 110. 
 McDaniel v. Baca, 339. 
 McDaniels ';. Barnuni, 325. 
 McDonald v. Ingraham, 68. 
 
 McDonald v. McDonald, 177. 
 
 V. Neilson, 41. 
 
 V. Wells, 187. 
 
 V. Woodbury, 217. 
 McDonnell v. Evans, 342. 
 McDonough v. Loughlin, 110. 
 McDougald v. McLean, 486. 
 McDowell V. General Ins. Co., 3ol. 
 
 V. Preston, 328. 
 McDuffie V. Greenway, 268. 
 McEwen i'. Bigelow, 491. 
 McFadden v. Commonwealth, 15. 
 
 o. Mitchell, 408. 
 
 V. O'Donnell, 50. 
 McParland v. Commissioners, 125. 
 
 V. Lowry, 114. 
 McFarlin v. State, 340. 
 McFarren v. Mont Alto Iron Co., 228 
 M'Ferran v. Powers, 131. 
 McGarry v. People, 444. 
 McGee v. Curry, 235. 
 M'Gee v. Eastis, 51. 
 McGrehee v. Brown, 186. 
 
 V. Hansen, 63. 
 
 V. Jones, 169- 
 McGill V. Rowand, 276. 
 McGinn v. Worden, 211. 
 McGinnee v. McGinnes, 91. 
 McGlothlin v. Henry, 200. 
 McGown V. Randolph, 235. 
 McGrath v. Seagrave, 454. 
 McGrew v. The Governor, 101. 
 M'Guire v. Maloney, 282. 
 McGuire v. People, 7. 
 
 V. Shelby, 78. 
 McGuirl V. McGuirl, 328. 
 McGunnagle v. Thornton, 113. 
 McHosee v. Cain, 244. 
 McHugh V. Chicago &c. R'y Co., 531. 
 
 V. State, 338. 
 Mcllvalne v. Franklin, 106. 
 Mclndoe v. Clarke, 245. 
 
 V. Lunt, 116. 
 Mclnroy v. Dyer, 133, 296. 
 Mclutire v. Young, 410. 
 Mcintosh V. Smith, 186. 
 Mclntyre v. Meldrim, 169. 
 
 V. Middleton, 103, 109. 
 McKain y. Love, 82. 
 McKay v. Treadwell, 131. 
 McKean v. Massey, 183. 
 McKee, Ex parte, 523. 
 
 V. Myers, 116. 
 McKeen v. Frost, 110, 188, 268. 
 McKenzie v. State, 25, 48. 
 McKeon v. People, 345, 346. 
 
liv 
 
 CABLE OF CASES. 
 
 McKeone v. Peopls, 411. 
 McKeowan v. Harvey, 395. 
 M'Kinney v. M'Kinney, 103. 
 McKinney v. People, 389. 
 M'Laine v. Bachelor, 04. 
 McLanahan v. Universal Ins. Co., 503, 
 
 504. 
 McLaren i'. Hopkins, 54, 142. 
 McLaughlin v. Cowley, 336. 
 
 V. Gilmore, 447. 
 
 V. McLauglilin, 128. 
 
 c. Nelms, 112, 113. 
 
 u. Sauve', 108. 
 
 r. Shields, 04. 
 McLaurin i-. Wilson, 231. 
 McLean v. State, 391, 477. 
 
 V. Thorp, 397. 
 McLear v. Succession of Hunsickcr, 
 
 402. 
 McLees v. Pelt, 323. 
 McLellan v. Richardson, 80, 457. 
 McLendon, Ex parte, 154. 
 McLeod V. Bullard, :343, 510. 
 
 u. Frost, 116. 
 M'Lughan v. Bovard, 144. 
 McMahon v. Tyng, 504. 
 McMaster v. Stewart, 308. 
 McMechen v. McMechen, 493. 
 McMillan v. Croft, 235. 
 McMillen v. Andrews, 101, 454. 
 McMurray's Appeal, 227. 
 McNab V. Stewart, 196. 
 McNabb v. Lockhart, 33. 
 McNaghten's Case, 495, 496. 
 McNail V. Zeigler, 276. 
 McNair v. Nat. Life Ins. Co., 496. 
 McNally v. Meyer, 306. 
 McNeill V. Arnold, 129, 343. 
 
 V. Eousseau, 299. 
 McNicol V. Johnson, 226. 
 McNiel's Case, 528. 
 McNulty V. Heard, 208. 
 McPheeters v. McPheeters, 176. 
 Mcllae V. Laurence, 321. 
 
 V. Malloy, 222. 
 
 V. Rhodes, 296. 
 M'Rae v. Mattoon, 500. 
 McTavish v. Denning, 447. 
 McVeaugh v. Goods, 54, 120. 
 McVey v. Blair, 341. 
 Meacham v. Pell, 470. 
 Mead v. McGraw, 319. 
 
 V. Northwestern Ins. Co., 503. 
 
 V. Smith, 82. 
 Meagoe v. Simmons, 348. 
 Mealing v. Pace, 473. 
 
 Means v. Means, 482. 
 
 V. State, 517. 
 Meason r. Kane, 106. 
 Mechanics' &c. Bank v. Eider, 207. 
 Mechanics' Bank v. Smith, 411. 
 Mechelke ;;. Bramer, 305. 
 Medley v. Wetzler, 186. 
 Medora, The, 116. 
 Mee ;;. Reid, 389. 
 Meek v. Pierce, 279. 
 
 V. Walthall, 1.35. 
 Meeker v. Jackson, 35. 
 Meffert v. Dubuque &c. E. R. Co., 531. 
 Megary !-. Fontis, 283. 
 Meguire v. Corwine, 153. 
 Meighan v. Bank, 127. 
 Meixell v. Williamson, 363. 
 Melluish ;;. Collier, 353. 
 Melvin v. Easley, 492. 
 
 V. Melvin, 54. 
 
 u. Whitney, 531. 
 Memphis &c. R. R. Co. ^. Bibb, 403. 
 
 V. Maples, 465, 468. 
 
 u. Tugwell, 121. 
 Memphis & Ohio River &c. Co. i . Mc- 
 
 Cool, .332. 
 Meni v. Rathbone, 275. 
 Menk v. Steinfert, 280. 
 Mercer v. Patterson, 282. 
 
 V. Vose, 482. 
 
 V. Wright, 319. 
 Merchand v. Cook, 58. 
 Meredith v. Hughes, 281. 
 
 V. Picket, 478. 
 
 I'. Shewell, 101. 
 Merlizzi v. Gleeson, 427. 
 Merriam ;•. Hartford &c. R. R. Co., 163, 
 
 272, 368. 
 Merrill ;•. Atkin, 173. 
 
 V. Berkshire, 409. 
 
 o. Gould, 39. 
 
 V. Grinnell, 481. 
 
 V. Honsley, 101. 
 
 V. Ithaca &c. R. R. Co., 461. 
 
 V. Whitefield, 319. 
 Merrimac, The, 28. 
 Merrit v. Pollys, 108. 
 Merritt v. Campbell, 217. 
 
 j;. Merritt, 95. 
 
 V. State, 371. 
 Mershorn v. State, 327. 
 Mertz V. Detweiler, 498. 
 Meserve v. Hicks, 64, 101. 
 Mesick v. Mesick, 79. 
 Messenger v. Armstrong, 132. 
 Messer v. Reginnitter, 501. 
 
TABLE OF CASES. 
 
 Iv 
 
 Mester v. Ilauser, 284. 
 
 u. Zimmerman, 103. 
 Metcalf V. Young, 294. 
 Methodist Church v. Wood, 123. 
 Metz V. Snodgrass, 242. 
 Metzer v. State, 408. 
 Mevey v. Matthews, 90. 
 Meyer v. Claus, 235. 
 
 V. Eckless, 186. 
 
 V. Lent, 405. 
 
 V. Morris, 177. 
 Meyneoke v. State, 333. 
 Middlekauff v. Smith, 115. 
 Middleton Savings Bank v. Bates, 125. 
 Mifflin V. Bingham, 296, 298. 
 Milam v. Milam, 177. 
 Mildrone's Case, 389. 
 Miles V. Dawson, 527. 
 
 I'. Loomis, 507. 
 
 V. McCullough, 529. 
 
 o. United States, 274, 292. 
 Miley v. Todd, 88. 
 Millay v. Wiley, 110. 
 Mill-Dam Foundry v. Hovey, 126. 
 Miller t7. Adkins, 217. 
 
 „. Dayton, 180. 
 
 V. Dillon, 86. 
 
 ■V. Eicholtz, 509. 
 
 a. Fitch, 133. 
 
 V. Hayman, 11.3. 
 
 v. Henshaw, 119. 
 
 t/. Honeke, 404. 
 
 V. Ins. Co. of North America, 208. 
 
 V. Johnson, 509. 
 
 V. Jones, 158. 
 
 V. Little, 56. 
 
 V. Mariners' Church, 123, 125, 126, 
 299. 
 
 V. McCan, 56. 
 
 V. McClenachan, 104. 
 
 V. McCogg, 91. 
 
 ... Miller, 308. 
 
 u. Montgomery, 219. 
 
 V. Richardson, 318. 
 
 V. Smith, 490, 492. 
 
 V. State, 257, 375. 
 
 i;. Stem, 99, 117. 
 
 V. Stern, 340. 
 
 V. Thatcher, 109. 
 
 o. Waterman, 244. 
 
 V. Williamson, 270. 
 Millett V. Farker, 64, 118. 
 Million V. Ohnsorg, 200. 
 Minis V. Quimby, 479. 
 Mills V. Beard, 114. 
 
 o. Griswold, 447, 459. 
 
 Mills V. Lee, 43. 
 
 u. Oddy, 448. 
 Milman v. Tucker, 440. 
 Milsap V. Stone, 295. 
 Milton V. Rowland, 479. 
 Milward v. Hallett, 56. 
 Milwaukee &c. R. R. Co. v. Eble, 477. 
 
 r. Kellogg, 489, 503. 
 Mimms V. State, 347. 
 Mims V. Sturtevant, 469. 
 Mincke v. Skinner, 501. 
 Miner v. Downer, 57. 
 Minich v. People, 319. 
 Ministerial Fund v. Reed, 125. 
 Minns v. Smith, 342. 
 Mishler v. Baumgardner, 65. 
 
 f. Merkle, 142. 
 Mislaid v. Boynton, 328. 
 Mississippi &c. Bridge Co. v. Ring, 
 
 483. 
 Mitchell's Case, 440, 448. 
 Mitchell, Ex parte, 531. 
 
 c. Clagett, 275. 
 
 V. Conrow, 98. 
 
 u. Cooper, 93. 
 
 e. Cotten, 91. 
 
 V. Hinman, 4.32. 
 
 V. Maxwell, 517. 
 
 V. Mitchell, 119, 295. 
 
 V. Sayings Inst, 197. 
 
 e.'State, 498, 510. 
 
 v. Seltman, 361. 
 Mitchinson v. Cross, 285. 
 Mix V. Marder, 117. 
 Mixell V. Lutz, 102. 
 Mobby V. Hamit, 333. 
 Mobile V. Jones, 164. 
 Mobile &c. Ins. Co. v. McMillan, 473. 
 Mobile &c. R. R. Co. ^. Blakeley, 
 
 504. 
 Mobley v. Hamit, 332. 
 Mockbey v. Gardner, 135. 
 Moddewell v. Keever, 105. 
 Moffat V. Moffat, 266. 
 Moffit i\ Gaines, 117. 
 
 0. State, 289. 
 Mohawk Bank v. Atwater, 296. 
 Mokelumne &c. Co. u. Woodbury, 
 
 126, 145. 
 Molina v. United States, 500. 
 Moloney v. Dows, 442. 
 Molyneaux v. Collier, 118, 146. 
 Monk r. Union &c. Ins. Co., 413. 
 Monroe v. Napier, 168. 
 
 V. Twistleton, 284. 
 
 v. Upton, 69. 
 
Ivi 
 
 TABLE OF CASES. 
 
 Monongahela Water Co. v. Stewart- 
 son, 408, 411. 
 Montague v. Mitchell, 56. 
 Montgomery ;■. Evans, 114. 
 
 V. Gilmer, 504. 
 
 1. Grant, 141. 
 
 u. Hunt, 351. 
 
 V. Perkins, 138._ 
 
 V. Pickering, 448. 
 
 c. Simpson, 205. 
 
 V. State, 83, 377. 
 Montgomery &,c. Co. v. Webb, 126. 
 Montgomery &c. R. E. Co. c. Ed- 
 monds, 155. 
 Montgomery County Bank c. Jlarsh, 
 
 127. 
 Montgomery Plank Eoad Co. u. 
 
 Webb, 298. 
 Moody V. Davis, 402. 
 
 V. Fulmer, 55, 110, 269. 
 
 V. Pell, 208, 323. 
 
 V. Eowell, 399, 408, 413, 507, 510. 
 Moon V. Campbell, 131. 
 Moore v. Chesley, 41. 
 
 u. Chicago &c. E. R. Co., 351. 
 
 V. Griffin, 124. 
 
 V. Harlan, 168. 
 
 I. Henderson, 90. 
 
 V. Hitchcock, 53, 54. 
 
 II. Jones, 305. 
 
 V. Lea, 116, 504. 
 
 V. Maxwell, 35, 110. 
 
 V. McKie, 72, 131, 270. 
 
 I. Eich, 139. 
 
 V. Shenk, 122. 
 
 V. Sheridine, 298. 
 
 V. State, 247, 305, 333. 
 
 V. Taylor, 72. 
 
 <;. United States, 509. 
 
 V. Westervelt, 490. 
 
 V. Wingate, 453. 
 Mooreman v. De Graffenread, 104. 
 Moran v. Portland &c. Co., 66. 
 Morcin v. Solomons, 387, 388. 
 More V. Degoe, 394. 
 Morehouse v. Matheivs, 473, 482. 
 Moreland v. Lawrence, 3.33. 
 
 V. Mitchell Co., 487. 
 Morgan's Case, 389. 
 Morgan v. Bridges, 407. 
 
 V. Bunting, 222, 223. 
 
 V. Frees, 346, 347. 
 
 V. Hyatt, 276. 
 
 ,'. Eoberts, 63. 
 
 r. Stone, 192. 
 
 V. Winston, 404. 
 
 Morissey v. People, 290, 403. 
 Morony v. O'Laughlin, 276. 
 Morrill v. Carr, 187. 
 
 c. State, 289, 290, 291. 
 Morris v. Crul, 527. 
 
 u. Grubb, 239. 
 
 ^. Harris, 77, 283. 
 
 V. Hazlehurst, 411. 
 
 (•. Lachman, 463. 
 
 c. Eippy, 531. 
 
 V. Wadsworth, 114. 
 
 V. White, 187, 364. 
 Morrison v. Bean, 235. 
 
 V. Fowler, 133. 
 
 II. Hammond, 191. 
 
 V. Hartman, 117. 
 
 V. Lennard, 0. 
 Morrow v. Parkham, 63. 
 
 V. State, 250. 
 Moree V. Cloyes, 67. 
 
 V. Green, 108, 117. 
 
 0. Hovey, 67. 
 
 1 . Low, 238. 
 V. Page, 188. 
 
 V. State, 474, 480. 
 Morss V. Morss, 49, 101, 454. 
 Morton, Re, 522, 523. 
 
 V. Beal, 119, 295. 
 Mosely v. Eakin, 273. 
 
 V. Wilkinson, 497. 
 Moses V. Boston &o. R. R. Co., 122. 
 
 7,', Delaware Ins. Co., 50-3. 
 
 V. State, 308. 
 Mosher v. Butler, 226. 
 Mosley v. Eakin, 230. 
 
 V. Vermont &c. Ins. Co., 367. 
 Mosner v. Raulain, 209. 
 Moss V. State, 47. 
 Mosser v. Mosser, 63. 
 Mott V. Clark, 86. 
 
 V. Consumers' Ice Co., 526. 
 
 o. Goddard, 103. 
 
 V. Hicks, 297. 
 
 c. Hudson River E. E. Co., 505. 
 
 ... New York, 207. 
 
 V. Small, 143. 
 Moulton V. Mason, 194. 
 
 .-. McOwen, 503, 504. 
 
 V. Moulton, 25. 
 
 V. Scruton, 476, 498. 
 Mountain v. Fisher, 271. 
 Mourry v. Lord, 503. 
 Mousler v. Harding, 285. 
 Mowatt V. Graham, 623. 
 Mower's Appeal, 194. 
 Mowry v. Chase, 500. 
 
TABLE OF CASES. 
 
 Ivii 
 
 Mowry v. Smith, 417. 
 
 Moyer v. Gunn, 90. 
 
 Muchmore v. Jeffers, 56. 
 
 Mudd V. Bast, 199. 
 
 Muir V. Gibson, 176. 
 
 Muirhead v. Kirlcpatrick, 01, 92. 
 
 Muldowney v. 111. Central K. li. Co., 
 
 487, 488, 489. 
 Mulhollin v. State, 387. 
 Mull V. Martin, 222. 
 Mullen V. Scott, 63. 
 Muller V. Ehuman, 167. 
 Mulry V. Mohawk Valley Ins. Co., 
 
 503. 
 Mulvany v. Rosenberger, 135. 
 Mumm V. Owens, 158. 
 Mumma v. McKee, 1.34. 
 Munden v. Bailey, 347. 
 Munson v. Hastings, 370. 
 
 V. Hegenian, 40. 
 Murden v. Clifford, 130. 
 Murphy v. Hubble, 75. 
 
 0. McNiel, 339. 
 
 u. Murphy, 75. 
 
 V. New York &c. R. E. Co., 
 505. 
 
 <,. N. Y. Central R. R. Co., 
 489. 
 
 V. Ray, 223. 
 
 V. State, 120. 
 Murray v. Carrett, 116. 
 
 V. Cunningham, 465, 468. 
 
 u. Dowling, 446. 
 
 V. Finster, 103. 
 
 V. House, 137. 
 
 V. Joyce, 188. 
 
 V. Judah, 92. 
 
 V. New York &c. R. E. Co., 228. 
 
 V. Marsh, 92. 
 
 t. "Wilson, 55. 
 Muscott V. Runge, 531. 
 Musick V. Musick, 199. 
 
 u. Ray, 186. 
 Musser v. Gardner, 276. 
 Mutual &e. Ins. Co. r. Deale, 116. 
 Mutual Fire Ins. Co: v. Marseilles &c. 
 
 Co., 126. 
 Myers v. Brownell, 73. 
 
 V. Clark, 119. 
 
 V. Gilbert, 106. 
 
 V. HoUingsworth, 205. 
 
 V. McCarthy, 207. 
 
 t. Palmer, 94. 
 
 17. State, 25. 
 
 V. Walker, 111, 226. 
 Myre v. Ludwig, 148. 
 
 N. 
 
 Nalle V. Gates, 43. 
 Napier v. Barry, 113. 
 Napoleon, The, 323. 
 Nash V. East, 96. 
 p. Gibson, 180. 
 V. Reed, 77. 
 Nashville &c. R. R. Co. u. Fugett, 
 
 116. 
 Nason v. Thatcher, 125. 
 Nass V. Vanswearinger, 51. 
 Nation v. People, 337, 348. 
 National &c. Ins. Co. v. Crane, 127, 
 
 139. 
 Nat. Bank v. Mills, 305. 
 National Trust Co. v. Glcason, 20, 23. 
 
 0. Roberts, 20. 
 Nave V. Tucker, 494. 
 V. Williams, 26. 
 Naylor v. Semmes, 424. 
 Neal V. Lamar, 36, 141. 
 Neale v. Coningham, 436. 
 Nearpass v. Oilman, 219. 
 N. E. Glass Co. v. Lovell, 488. 
 Neil V. Childs, 462, 516. 
 Neilson v. Columbia Ins. Co., 340. 
 Nellis V. McCarn, 481. 
 Nelson v. Iverson, 66, 480. 
 V. State, .391. 
 
 </. Sun Mut. Ins. Co., 490. 
 V, Vorce, 321. 
 Neptune, The, 29. 
 Nesbitt V. Dallam, 388. 
 Nessby v. Swearingen, 56. 
 Netherton v. Robert, 51. 
 Neville r. Demeritt, 128, 139. 
 New Albany &c. R. R. Co. i/. Gillcspy, 
 
 127. 
 Newberry v. Furnival, 413. 
 Newbold v. Wilkins, 116. 
 Newcastle &c. E. R. Co. v. Brumback, 
 
 127. 
 Newcomb v. Griswold, 336. 
 
 .;. State, 3.38. 
 
 Neweome v. State, 437. 
 
 Newell V. Hatton, 98. 
 
 V. Hoadley, 70. 
 
 V. Newell, 497. 
 
 V. Wright, 306. 
 
 Newells v. Salmons, 91. 
 
 Newhall v. Jenkins, 23, 310. 
 
 0. Wadhams, 335. 
 New Haven Bank v. Mitchell, 462. 
 Newkirk v. Burson, 87. 
 Newland v. Douglass, 455. 
 
Iviii 
 
 TABLE OF CASES. 
 
 Newlind v. Beard, 241. 
 
 Newman v. Mackin, 330. 
 
 6.. People, 249, 317. 
 Newson v. Huey, 295. 
 Newton v. Fordham, 483. 
 
 t,.. Harris, 347. 
 
 V. Jackson, 367. 
 
 «. Pope, 294. 
 New York &c. Bank v. Gibson, 127. 
 New York &c. R. R. Co. v. Cook, 127. 
 New York Exchange Bank u. Jones, 
 
 219. 
 New York Slate Co. i'. Osgood, 116. 
 Neyland v. State, 516. 
 Niagara Ins. Co. v. Greene, 503. 
 Niccolls V. Esterley, 188. 
 Nicholas v. Trickey, 531. 
 Nieholls v. Dowding, 397. 
 
 V. Guibor, 114. 
 
 V. Webb, 469. 
 Nichols V. Artman, 96. 
 
 V. Bellows, 96. 
 
 1-. Doty, 531. 
 
 V. Holgate, 53, 86, 94, 129, 299. 
 
 V. Hotchkiss, 73. 
 
 V. McAbee, 169. 
 
 0. Patten, 133. 
 
 c. Stewart, 370. 
 
 V. White, 35, 357. 
 
 V. Wright, 89. 
 Nicholson v. Connor, 208, 311. 
 
 u. Frazier, 72. 
 
 ... Mifflin, 114. 
 
 V. Sherard, 187. 
 Nightingale v. Scannel, 107. 
 Nile V. State, 82. 
 Niles V. Brackett, 65, 296. 
 Nisbet V. Lawson, 92. 
 Nixon V. Bagby, 110. 
 Noble V. Laley, 39. 
 
 V. Paddock, 121. 
 
 V. People, 12, 98. 
 
 V. Withers, 177. 
 N. 0. Draining Co. v. De Lazardi,339. 
 Noel v. Dickey, 332, 333. 
 Nolan V. Ohio, 33. 
 Noland v. State, 25. 
 Nolin V. Palmer, 468. 
 Nooe V. Higdon, 57, 58, 
 Noonan v. Ilsley, 346, 482. 
 Norberg's Case, 390. 
 Norden v. Williamson, 38. 
 Norfolk V. Gaylord, 443. 
 Norman r. Morell, 507. 
 
 V. Wells, 482, 483. 
 Norment v. Fastnaght, 499. 
 
 Norris ;;. Beach, 528. 
 
 V. Hassler, 531. 
 
 ^. Herd, 299. 
 
 V. Johnston, 78. 
 Northcot V. State, 55. 
 North Ga. Mining Co. v. Latimer, 
 
 168. 
 Northern Line Packet Co. v. Shearer, 
 
 276. 
 Norton v. Ladd, 12. 
 
 u. Linton, 73. 
 
 1/. Moore, 479. 
 
 u. Waite, 56. 
 Norwood V. Kenfield, 355. 
 Nourse v. State, 375, 377. 
 Noy V. Creed, 271. 
 Noyes v. States, 48. 
 
 V. Sturdivant, 71. 
 Nuckalls V. Pinkston, 474. 
 Nuckols V. Jones, 347. 
 Nugent V. Curran, 200. 
 
 f. State, 330. 
 Nunes v. Perry, 507. 
 Nunn !'. Owens, 79. 
 Nuser v. Beach, 276. 
 Nute V. Bryant, 56. 
 
 V. Nute, 341. 
 Nye V. Lowry, 40. 
 
 V. Merriam, 340. 
 
 O. 
 
 Oakley v. Aspinwall, 46. 
 Oatis V. Harrison, 167. 
 O'Blennis v. Corri, 131. 
 O'Brien's Petition, 526. 
 O'Brien v. Davis, 94. 
 
 V. People, 486. 
 O'Connor v. Hartford Fire Ins. Co., 
 279. 
 
 V. Majoribanks, 267. 
 Odd Fellows' Hall v. Masser, 116. 
 Odell c'. Koppee, 14. 
 Odiorne v. Bacon, 462. 
 
 V. Wade, 124. 
 O'Donnell v. Segar, 411. 
 Ogden V. Gibbons, 517, 530. 
 
 V. Peters, 132. 
 O'l-Iagan v. Dillon, ,397, 408. 
 Ohio &c. R. R. Co. c. Irwin, 481. 
 
 t'. Taylor, 481. 
 Ohio Life Ins. Co. v. Ross, 69. 
 Oldershaw v. Knowles, 411. 
 Oldham v. McCormick, 67. 
 Olds V. Powell, 470. 
 Olinde r. Laiz£;n, 354. 
 Oliver v. President, 92. 
 
TABLE OF CASES. 
 
 lix 
 
 Olive V. Adams, 154. 
 
 V. State, 375, 370, 406. 
 Oliver v. Commonwealth, 2.39, 247. 
 
 u. MoClellan, 06. 
 
 V. Pate, 456. 
 
 V. State, 101. 
 Olmstead v. Winsted Bank, 355. 
 O'Neal V. Breecheen, 234. 
 
 V. Reynolds, 105. 
 
 V. Teague, 102. 
 Onion v. Fullerton, 07. 
 Oram v. Rotherniel, 228. 
 Orange v. Springfield, 123. 
 Orchiraund v. Barker, 12, 389. 
 Orcutt V. Cooke, 279. 
 Ordinary v. Bracey, 76. 
 Orendorff v. Utz, 190. 
 Ormsby v. Bakewell, 41. 
 
 u. Ihmsen, 501. 
 
 V. Wood, 206. 
 O'Rourke v. O'Rourke, 318. 
 Orphan's Court <^. Woodburn, 64, 
 
 139. 
 Orput V. Miller, 53. 
 Orr V. Cox, 234, 276. 
 
 I.. Lacey, 98. 
 
 .;. New York, 481. 
 Ortez V. Jewett, 116, .346. 
 Osborn v. Black, 111, 266. 
 Osborne v. O'Reilly, 420. 
 Osburn v. Cummings, 52. 
 Osceola, The, 109, 116. 
 Ostrander v. People, 83. 
 Otes V. Spenser, 453. 
 Otey V. Hoyt, 147, 476. 
 Otey V. McAfee, 197. 
 Otis V. Thorn, 122. 
 Ottawa &c. Co. v. Graham, 483. 
 Ottawa University e. Pai-kinsou, 482, 
 
 499. 
 Outlaw V. Hurdle, 360. 
 Outwater v. Dodge, 109. 
 Outz V. Seabrook, 168. 
 Over V. Blackstone, 44. 
 Overton v. State, 288. 
 Owen V. Brown, 187. 
 
 ^. Cawley, 280. 
 
 V. Warburton, 82. 
 Owens V. CoUinson, 119. 
 
 V. Owens, 242. 
 
 V. State, 261. 
 
 V. White, 368. 
 Owings V. Emery, 37. 
 
 ■;. Low, 423, 525. 
 
 V. Speed, 55. 
 Oxford Iron Co. v. Spadley, 394. 
 
 Pach V. Mayor of New York, 124. 
 Pacific Bank v. Mitchell, 88. 
 Packard v. Northcraft, 33. 
 
 V. Nye, 88. 
 
 V. Reynolds, 276. 
 
 V. Richardson, 87, 94. 
 Packer v. Noble, 228. 
 Packet Co. o. Clougli, 285. 
 Paddock i'. Commonwealth Ins. Co., 
 
 504. 
 Padgett V. Padgett, 75. 
 Page V. Burnstine, 153. 
 
 u. Butler, 199. 
 
 V. Carter, 26. 
 
 V. Commonwealth, 478. 
 
 !,■. Danaher, 244. 
 
 V. Dennison, 273. 
 
 V. Romans, 506, 510. 
 
 0. Kunkey, 407. 
 </. Page, 30, 35. 
 t: Parker, 394. 
 V. Weeks, 51. 
 
 V. Wliidden, 203. 
 Paige V. Hazard, 473, 475, 483. 
 
 V. O'Neal, 142. 
 Pain V. Beeston, 341. 
 Paine v. Hussey, 95, 146. 
 
 V. Tilden, 40, 57, 367. 
 Palmer v. Bangor, 188. 
 
 1. Hanna, 162. 
 
 V. Henderson, 276. 
 
 f. Kellogg, 102. 
 
 V. Pinkham, 394. 
 
 V. Tripp, 90. 
 
 V. Severance, 130, 154. 
 
 V. White, 192. 
 Panden v. People, 427. 
 Pannell v. Scoggin, 222. 
 Panton v. Norton, 477. 
 Parent v. Spilter, 239. 
 Parish v. Frampton, 61. 
 Park V. Smith, 88. 
 Parke v. Foster, 318. 
 
 ■V. Smith, 94. 
 Parkenson v. Atkinson, 533. 
 Parker v. Boston &c. Steamboat Co., 
 479. 
 
 u. Brown, 55. 
 
 1-. Carter, 448. 
 
 V. Cartzler, 531. 
 
 V. Chambers, 306, 474. 
 
 u. Haggerty, 401. 
 
 V. Hammond, 1.34. 
 
 V. Hanson, 88. 
 
Ix 
 
 TABLE OF CASES. 
 
 Parker v. Lovejoy, 87. 
 
 V. Moore, 109. 
 
 u. McNeill, 103. 
 
 u. Parker, 482. 
 
 V. Thompson, 205. 
 
 V. Way, 273. 
 Parkerson v. Burke, 168. 
 Parkhurst i'. Lovvten, 432. 
 Parkin v. Moon, 394. 
 Parkins v. Hawkshaw, 448. 
 Parks V. Caudle, 236. 
 Parraelee v. Austin, 395. 
 
 «. McNulty, 33. 
 Parnell u. Com., 510. 
 Parsons v. Bridgham, 395, 398. 
 
 r. Huff, 319. 
 
 V. Manufacturing &c. Ins. Co., 504. 
 
 V. People, 291. 
 
 u. Phipps, 57, 235. 
 
 u. Pierce, 200. 
 
 V. State, 376. 
 
 V. Sugdam, 355. 
 Partee v. Silliman, 92. 
 
 V. State, 378. 
 Patapsco Ins. Co. v. Southgate, 521. 
 Pate V. People, 506, 507. 
 Paton V. Stewart, 306. 
 Patrick c. The J. Q. Adams, 141, 480. 
 Patriotic Bank v. Coote, 330. 
 Patten v. Darling, 116. 
 
 V. Halstead, 101. 
 
 u. Moore, 203. 
 Patterson v. Cobb, 29. 
 
 V. Copeland, 214. 
 
 V. Fay, 136. 
 
 V. People, 248. 
 
 0. Reed, 61. 
 
 V. "Wallace, 295. 
 
 V. Winn, 35. 
 Pattison v. Armstrong, 227. 
 
 V. Johnson, 213. 
 Patton V. Allison, 144. 
 
 u. Brown, 425, 525. 
 
 V. Hamilton, 409. 
 
 V. Taylor, 59. 
 
 V. Wilson, 275. 
 Paul V. Eogers, 69. 
 Paulette v. Brown, 319. 
 Pavey v. Payey, 510. 
 
 V. Wintrode, 177. 
 Paxton V. Boyce, 357. 
 
 V. Douglass, 443. 
 
 V. Dye, 367. 
 Payne v. Devinal, 283. 
 
 V. Elyea, 168. 
 
 0. Gray, 188. 
 
 Payne v. State, 341. 
 
 V. Trezevant, 116. 
 Pea V. Pea, 177. 
 Peace v. Person, 531. 
 Peaceable v. Keep, 281. 
 Peachum v. Carter, 124. 
 Peacock o. Albin, 283. 
 
 V. Stoll, 222. 
 Peake v. Stout, 394. 
 
 V. Wabash E. R. Co., 126. 
 Pearce v. Farr, 344. 
 Pearcey v. Fleming, 66. 
 Pearson i\ Fiske, 403. 
 Pease v. Barnett, 213. 
 
 V. State, 257. 
 Peaslee v. McLoon, 267, 271. 
 Peat's Case, 274. 
 Pock, Ex parte, 523. 
 
 II. Brewer, 458. 
 
 V. Freeholders of Essex, 125. 
 
 V. McKean, 181. 
 
 V. Richmond, 388. 
 
 V. York, 336. 
 Peckham v. Lyon, 115. 
 Pedley v. Wellesley, 274, 281. 
 Peebles v. Stanley, 222. 
 Pegg v. Warford, 139, 293, 299. 
 Peiffer v. Lytle, 276. 
 Peirce v. Butler, 90. 
 
 0. Chase, 299. 
 
 ,'. State, 479. 
 Pelamourges v. Clark, 398, 484. 
 Pember v. Mathers, 364. 
 Pendall v. Eench, 114. 
 Pendleton v. Speed, 142. 
 Pendock ;;. Mackinder, 18. 
 Penn v. Oglesby, 173. 
 
 V. Watson, 78. 
 Pennsylvania v. Farrel, 98. 
 
 u. Leach, 47. 
 Pennsylvania &c. M'fg. Co. v. Neel, 84. 
 Pennsylvania &c. R. R. Co. v. Bun- 
 nell, 482. , 
 Pennsylvania Co. v. Conlan, 319, 504. 
 Pennsylvania R. K. Co. u. Henderson, 
 
 480. 
 Penny v. Black, 212, 219. 
 
 0. Brink, 501. 
 Pennypacker v. Umherger, 88. 
 Penobscot &c. R. R. Co. v. Dunn, 127. 
 People V. Amaracus, 367. 
 
 V. Ames, 375, 377. 
 
 V. Anderson, 301. 
 
 (,-. Annis, 294. 
 
 V. Arnold, 257. 
 
 V. Austin, 310, 327. 
 
TABLE OF CASES. 
 
 Ixi 
 
 People V. Arva, 28. 
 V. Barrie, 314. 
 V. Beach, 418. 
 V. Beck, 329. 
 V. Bell, 345. 
 V. Bernal, 6. 
 V. Bill, 25, 47, 49, 120. 
 V. Blackwell, 411. 
 ,/. Bodine, 307, 437. 
 V. Bonney, 385. 
 V. Boscoviteh, 392. 
 V. Brjggs, 287. 
 
 V. Brown, 253, 415, 427, 444. 
 V. Bruzzo, 139. 
 V. Carnell, 83. 
 u. Carpenter, 288. 
 u. Carroll, 437. 
 V. Casey, 444. 
 V. Cassells, 523. 
 y. Chase, 292. 
 V. Chin Mook Low, 337. 
 V. Christie, 411, 428, 435. 
 V. Cleveland, 378. 
 V. Cloonan, 375, 377. 
 u. Comm'rs of Charities, 287. 
 u. Cook, 379. 
 V. Costello, 25. 
 „. Cotta, 462. 
 u. Courtney, 375, 377. 
 o. Cox, 346. 
 V. Crandon, 287. 
 V. Crapo, 415. 
 u. Cronin, 316. 
 u. Cummins, 337. 
 u. Cunningham, 119. 
 V. Davis, 520. 
 V, Dean, 98. 
 V. De Witt, 353, 397. 
 -v. Dohring, 454, 458. 
 V. Donnelly, 47. 
 V. Doyle, 370. 
 u. Duell, 249. 
 V. Dyle, 312. 
 V. Elster, 336. 
 V. Elyea, 27. 
 I/. Fancher, 524. 
 u. Farrell, 251, 379. 
 V. Finnegan, 370. 
 V. Fitzpatrick, 288. 
 V. Freshour, 443. 
 V. Furtado, 345. 
 V. Gale, 415. 
 V. Garnet, 377. 
 V. Gates, 452. 
 0. Gay, 367. 
 p. Gibson, 312. 
 
 People V, Graham, 393. 
 V. Gray, 83. 
 V. Green, 391. 
 V. Hall, 160. 
 V. Hare, 312. 
 V. Harper, 414. 
 o. Haynes, 312, 313. 
 V. Hendrickson, 291. 
 V. Herrick, 10, 427. 
 V. Hicks, 319, 522. 
 V. Horvigan, 505. 
 V. Horton, 408. 
 ^. Houghton, 292. 
 V. Hovey, 287, 415. 
 
 0. Howard, 26, 27. 
 V. Howell, 54. 
 
 V. Hulbut, 457. 
 V. Hunt, 83, 458. 
 u. lams, 415. 
 V. Irving, 423, 525. 
 
 1. Jackson, 341, 
 'v. Jacobs, 351. 
 
 V. Jenness, 15. 
 
 V. Johnson, 337, 415. 
 
 V. .Jones, 28. 
 
 V. Keefer, 315. 
 
 c. Kelley, 256. 
 
 0. Kelly, 435, 524. 
 
 V. Kerrains, 497. 
 
 V. Knapp, 346. 
 
 V. Labra, 25. 
 
 V. Lake, 486. 
 
 V. Langtree, 338. 
 
 V. Lee, 377. 
 
 V. Locoste, 478. 
 
 ,.■. Lohman, 25, 365, 403, 428. 
 
 u. Long, 407. 
 
 V. Lopez, 385. 
 
 c. Lyons, 359. 
 
 u. Mallin, 305. 
 
 V. Mannausau, 441. 
 
 V. Marble, 289. 
 
 V. Mather, 329, 332, .'!34, 394, 395, 
 
 397, 398, 420, 432, 440. 
 u. Matteson, 12. 
 V. McGarren, 12. 
 V. McGee, 6. 
 V. McGloin, 23. 
 u. McGungiil, 415. 
 V. McKclIer, 345. 
 V. McLane, 308. 
 I/. McNair, 8. 
 V. Medical Society, 497. 
 u. Melvane, 375, 377. 
 0. Mercein, 286. 
 V. Miller, 49, 101, 408, 454. 
 
Ixii 
 
 TABLE OP CASES. 
 
 People V. Montgomery, 532. 
 V. Moore, 287, 327, 339. 
 V. Morow, 315. 
 V. Morrigan, 340. 
 o. MuUer, 504. 
 V. Naugton, 524. 
 u. Newberry, 48. 
 V. Northrup, 288. 
 V. Olmstead, 477. 
 V. Overseers of Ontario, 102, 273. 
 ... Park, 18, 19. 
 V. Pease, 22. 
 V. Quick, 249, 385. 
 V. Rector, 334, 306, 370, 427, 439. 
 V. Itichardson, 484. 
 V. Robertson, 16. 
 . V. Robinson, 498. 
 V. Robles, 307. 
 i\ Rodundo, 316. 
 V. Rogers, 497. 
 u. Russell, 414. 
 V. Ryland, 375, 377. 
 u. Safford, 350. 
 u. Sandford, 484. 
 i'. Schweitzer, 364. 
 (. Slieriff, 523. 
 0. Sheriff of New York, 448. 
 0. Skeehan, 355. 
 t,. Smallman, 408. 
 V. Smith, 379. 
 o. Soto, 319. 
 r. Sprague, 83, 319. 
 V. Stone, 373. 
 o. Stout, 449. 
 u. Strange, 314. 
 V. Strong, 319, 408. 
 V. Superior Court, 321. 
 u. Symonds, 385. 
 o. Tamkin, 477. 
 V. Thomas, 248, 256, 258. 
 V. Tyler, 252. 
 
 V. Van Alstine, 247, 449. > 
 u. Van Wyck, 516. 
 V. Walcott, 385. 
 V. Wallin, 414. 
 V. Ware, 346. 
 V. Washington, 160. 
 V. Westlake, 489. 
 u. Whipple, 18, 19, 25. 
 V. White, 372, 388. 
 !/. Williams, 49, 347, 478. 
 V. Winters, 389. 
 V. Wong Ah Bang, 390. 
 u. Young, 80. 
 V. Yslas, 330. 
 V. Zimmerman, 378, 
 
 People ex rel. Comm'rs v. Earthol, 276. 
 People ex rel. McDonald v. Keeler, 524. 
 People ex rel. Phelps v. Oyer cSb Termi- 
 ner, 418. 
 Pepper v. Broughton, 223. 
 Peralta v. Castro, 128. 
 Perez v. State, 17, 19. 
 Perkins v. Hitchcock, 318. 
 
 V. Jordan, 114. 
 
 V. Perkins, 203. 
 
 V. Pitman, 101. 
 
 V. State, 370. 
 Perlberg v. Gorham, 137. 
 Perlmutter v. Highland Street Rail- 
 way Co., 408. 
 Perrin v. Johnson, 86. 
 Perrine v. Striker, 425. 
 Perry's Case, 15. 
 Perry v. Gibson, 407. 
 
 V. Graham, 473. 
 
 V. Hodnett, 167. 
 
 V. Jackson, 222. 
 
 V. Maguire, 78. 
 
 V. Massey, 350, 356. 
 
 V. Mulligan, 168. 
 
 V. People, 23, 221. 
 
 V. Porter, 394. 
 
 ■;. Randall, 284. 
 
 V. Siter, 95. 
 
 V. Swasey, 91. 
 
 u. Whitney, 275. 
 Perryman v. Steggall, 141. 
 Person v. Grier, 529. 
 Persons v. Hight, 169. 
 Persse &c. Paper Works v. Willett, 410 
 Peter v. Beal, 54. 
 Peterboro' v. Jaffrey, 482. 
 Peterie v. Bugbey, 159. 
 Petermans v. Laus, 129, 135. 
 Peters v. Gibson, 187. 
 
 V. Horbach, 293. 
 
 V. Moss, 119. 
 Peterson v. Peterson, 284. 
 
 V. State, 6. 
 Petitt V. First &c. Bank, 127. 
 Petrel, The, 322. 
 Petrick v. Ashcroft, 268. 
 Pettigrew v. Barnum, 33. 
 Pettingill v. Porter, 192. 
 Pettit V. Geesler, 216, 219. 
 Peytona, The, 142. 
 Phares v. Barbour, 269, 408. 
 Phebe v. Prince, 3. 
 Phelin v. Kenderdine, 432, 441 
 Phelps V. Hall, 54. 
 
 V. Hodge, 114. 
 
TABLE OP CASES. 
 
 Ixiii 
 
 Phelps V. Oyer & Terminer, 413. 
 
 V. Hiley, 116. 
 
 V. .Sinclair, 121. 
 
 V. Town, 500. 
 
 V. Winchell, 51. 
 Phettiplace v. Sayles, 420. 
 Philadelphia &c. E. R. Co. v. Hick- 
 man, 127. 
 
 ■v. Stinipson, 409. 
 Philadelphia Ins. Co. v. Washington 
 
 Ins. Co., 127. 
 Philbin v. Patrick, 465. 
 Philbrook v. Handley, 69. 
 Phillips V. Bridge, 113, 251. 
 
 u. Buckingliam, 128. 
 
 «. Caldwell, 95. 
 
 V. Earner, 407. 
 
 V. Elwell, 408. 
 
 t/. Henry, 106. 
 
 u. Kingfield, 330, 334. 
 
 V. State, 25. 
 
 V. Terry, 501, 503. 
 
 V. Thorn, 327. 
 
 I/. Williams, 322. 
 Phinney v. Tracy, 61, 144. 
 Phipps V. Pitcher, 128. 
 Phoenix v. Castner, 347. 
 Piatt V. St. Clair, 82. 
 Pickard v. Bailey, 500. 
 
 I,. Collins, 355, 432, 437. 
 Pickering v. Misner, 172. 
 Picket V. Vance, 187. 
 Pickett V. Cloud, 52. 
 Pidcock V. Potter, 495. 
 Pierce v. Burroughs, 203. 
 
 V. Chase, 299. 
 
 V. Gilson, 338. 
 
 V. Hinsdall, 66. 
 
 V. Kearney, 126. 
 
 V. State, 363. 
 Piercy v. Hedrick, 113. 
 Pierpont v. Shapland, 387. 
 Pierson v. Hoag, 498. 
 
 V. People, 450. 
 
 V. Wallace, 483. 
 Pigg V. Carroll, 276. 
 
 V. State, 498. 
 Pike V. McDonald, 68. 
 Pile V. Benham, 141, 143. 
 Pillow V. Bushnell, 206, 285. 
 Pillsbury v. Nelson, 43. 
 Pillsburry v. Small, 70. 
 Pilsbury, Matter of, 518. 
 Pinchback v. Killian, 02. 
 Pine V. Smith, 90. 
 Pingree v. Coffin, 38. 
 
 Pinkard v. State, 434, 441. 
 Pinney, lie, 457. 
 
 V. Orth, 213. 
 Pinshower v. Hanks, 467. 
 Pipher'i'. Lodge, 520. 
 Pitcher ■;;. King, 516. 
 
 v. People, 445. 
 Pitts V. State, 496. 
 Pittsburg &c. R. R. Co. v. Andrews, 
 
 340. 
 Pittsfield &c. Plankroad Co. v. Har- 
 rison, 172. 
 Pixley V. Butts, 63. 
 Platner v. Platner, 214. 
 Plato V. Reynolds, 346. 
 Piatt V. Hedge, 61. 
 
 V. Thorn, 355. 
 Pleasant v. State, 328, 334. 
 Plumb V. Whiting, 54. 
 Plumer v. Alexander, 122. 
 Plunkett V. Bowman, 506. 
 Plymouth, The, 66. 
 Plympton v. Moore, 87. 
 Poage V. State, 18. 
 Poe V. Domic, 200. 
 
 V. Dorrah, 51, 119. 
 Polk V. State, 490. 
 Pogne ?j. Joyner, 117. 
 Poignard v. Smith, 35. 
 Poindexter v. Davis, 425. 
 Polk V. CoiBn, 503. 
 
 0. State, 338, 496, 497, 498. 
 Pollard V. Graves, 137. 
 Pollen V. Leroy, 321. 
 Pollock V. Hoag, 454. 
 
 V. Pollock, 350, 373. 
 Pomeroy v. Avery, 138. 
 
 V. Baddeley, 392. 
 Pond V. Pond, 338. 
 
 0. Sage, 124. 
 
 V. State, 9. 
 Pool V. Devers, 319. 
 
 0. Myers, 57. 
 
 V. Pool, 411. 
 Poole V. Perritt, 432, 438, 439. 
 Pope V. Allen, 219. 
 
 .■. Andrews, 41, 132. 
 
 c. Dodson, 319. 
 
 V. Hall, 33. 
 
 <■. Machias &c. Co., 402. 
 
 V. Nance, 98. 
 Poppers V. Miller, 278. 
 Poquet v. North Hero, 237. 
 I'orche v. Le Blanc, 104. 
 Porter v. Allen, 272. 
 
 i,. Bank of Rutland, 127. 
 
Ixiv 
 
 TABLE on? CASES. 
 
 Porter v. Hunger, 147, 148. 
 
 V. Potter, ail. 
 
 V. Robinson, 73. 
 
 ... State, 391. 
 
 ^. Wilson, 106. 
 Post V. Avery, 01. 
 
 V. Dart, 86, 129. 
 Poteete v. State, 48. 
 Potter V. Bissell, 400. 
 
 V. Chicago Bank, 153. 
 
 V. Menasha, 244. 
 
 V. Ware, 63. 
 Potts V. Harper, 27. 
 
 V. House, 310, 497. 
 
 V. Mayer, 217. 
 Poucliier, Ex parte, 68. 
 Pourcelly v. Lewis, 510. 
 Powell V. Powell, 141, 282, 283. 
 
 V. State, 290, 375, 391, 392, 485, 
 497. 
 
 u. Tuttle, 384. 
 Power V. Kent, 448. 
 Powers V. Carey, 370. 
 
 V. Leach, 340. 
 Prairie Eose v. Cross, 45. 
 Prather v. Lentz, 97, 294. 
 
 V. Pritchard, 187, 462. 
 Pratt V. Andrews, 371. 
 
 c. Delaware, 282. 
 
 V. Elkins, 214. 
 
 V. Patterson, 227. 
 
 V. Rawson, 510, 512. 
 
 V. State, 310. 
 Pratte v. Coffman, 199. 
 Prentiss v. Roberts, 366. 
 
 V. Webster, 518. 
 Presbury v. Papin, 93. 
 Prescott v. Duquesne, 125. 
 
 V. Hawkins, 74. 
 Prettyman v. Dean, 44. 
 Prevle Bank v. Russell, 117. 
 Prew V. Donahue, 505. 
 Prewter v. Marsh, 37, 43. 
 Price v. C.iperton, 62. 
 
 V. Commonwealth, 253. 
 
 V. Gregory, 101. 
 
 V. Hartshorne, 504. 
 
 ^. Joyner, 283. 
 
 V. Magange, 86. 
 
 V. McGee, 530. 
 
 V. Notrebe, 111. 
 
 ... Powell, 116, 504. 
 
 V. Woods, 54. 
 Priest v. Bounds, 92. 
 
 V. State, 26. 
 Primmer v. Clabaugh, 173. 
 
 Prince ;;. Down, 272. 
 
 V. Samo, .361, 417. 
 
 ,,■. Shepard, 69. 
 Pringle v. Pringle, 267. 
 Printup V. Mitchell, 413. 
 Printz V. Cheeney, 432. 
 Pritchett v. Munroe, 154. 
 Proctor V. Terrell, 324. 
 Protherton v. Livingston, 45. 
 Prouty V. Eaton, 212, 219. 
 Provis V. Reed, 367. 
 Prowattain v. Tindall, 311. 
 Pruitt V. Cox, 368. 
 Pruit V. Miller, 21. 
 Pryor r. Harris, 408. 
 
 i: Ryburn, 75, 266. 
 Pugh V. Grant, 223. 
 Pulaski County v. Downer, 531. 
 PuUen !;. People, 289. 
 Pulliam V. Pensoneau, 50. 
 Pullman v. Corning, 495. 
 Purcell V. Pry, 215. 
 Purviance v. Dryden, 46, 104. 
 Purvis V. Albritton, 142. 
 Pusey V. Wright, 37. 
 Putnam v. Ritchie, 404. 
 Pyke V. Searcy, 56. 
 Pyle V. Maulding, 267. 
 
 1-. Oustatt, 276. 
 
 Q. 
 
 Quade ;;. Fisher, 276. 
 Quarles r. Brannon, 129. 
 
 f. Waldron, 63. 
 Queen's Case, The, 14, 342, 361, 417. 
 Queen v. Ball, 352. 
 
 , . Parr, 352. 
 
 ('. Langton, 460. 
 Queener v. Morrow, 32, 370. 
 Quick V. Hoskins, 187. 
 Quimby v. Morrill, 409. 
 Quinlan v. Davis, 88. 
 Quiu V. Moore, 102. 
 Quinn v. Crowell, 14. 
 
 V. Moss, 76. 
 
 t. Rawson, 319. 
 
 II. 
 
 R . V. Ackers, 457. 
 
 ,.. Adey, 437. 
 
 t,. Alsley, 389. 
 
 V. Athnon, 522. 
 
 r. Atwood, 312, 375, 377. 
 
 V. Barnard, 375, 376. 
 
 u. Beezley, 386. 
 
 V. Berenger, 397. 
 
TABi^E OP CASES. 
 
 Ixv 
 
 R . V. Blackman, 457. 
 
 0. Boulter, 373. 
 V. Boyes, 439, 441. 
 I/. Braithcwaite, 873. 
 I.. Bramley, 273. 
 V. Brittleton, 288. 
 V. Brooke, 407. 
 ('. Broughton, 119. 
 V. Chapman, 398. 
 ^. Clarke, 372. 
 V. Collins, 410. 
 V. Cook, 391. 
 V. Cooke, 80. 
 V. Cox, 449. 
 V. Crossfleld, 374. 
 V. Cundy, 457. 
 u. Davis, 18. 
 V. De Berenger, 437. 
 V. Douglass, 432. 
 V. Dovvber, 312, 375, 378. 
 V. Duchess of Kingston, 460. 
 V. Durham, 312, 375. 
 V. Earl of Tlianet, 50. 
 V. Ellis, 119. 
 V. Enhehman, 389. 
 V. Fletcher, 25, 47. 
 V. Pord, 18, 21. 
 V. Garbett, 436, 439. 
 V. Gardner, 17. 
 V. Gazzard, 50, 454. 
 „. Gilham, 389, 452. 
 V. Goodere, 391. 
 V. Guttridge, 3, 6. 
 V. Hardy, 407, 424, 432. 
 V. Hargraves, 379. 
 u. Hastings, 312, 375. 
 V. Hill, 3, 5. 
 • V, Hinks, 48. 
 V. Hood, 267. 
 V. Jarvis, 312, 375. 
 V. Jones, 312, 375, 376. 
 V. Kea, 272. 
 
 V. Lord George Gordon, 432. 
 V. Luffe, 272, 273. 
 V. Lyons, 47. 
 V. Mansfield, 273. 
 V. Marsh, 80. 
 V. Megson, 3, 6, 374. 
 V. Moores, 378. 
 V. Moran, 352. 
 „. Murlis, 407. 
 u. Murphy, 398, 407. 
 V. Nicholas, 8. 
 V. Nunez, 119. 
 V. Perkin, 6. 
 V. Pike, 7, 8. 
 
 R . V. Reading, 273. 
 
 o. Richardson, 456, 457. 
 
 V. Rook, 272. 
 
 V. Rosser, 80. 
 
 i;. Rowland, 47. 
 
 r. Serva, 14. 
 
 V. Shellard, .342, 344. 
 
 V. Slaney, 443. 
 
 o. Sparks, 452. 
 
 V. Still, 497. 
 
 V. Stimpson, 386. 
 
 o. St. Martin's Leicester, 462. 
 
 17. Stourton, 272, 273. 
 
 V. Stuhbs, 370. 
 
 V. Travers, 6. 
 
 u. Upper Boddington, 448. 
 
 V. Vaughan, 391. 
 
 V. Wade, 8. 
 
 0. Walker, 374. 
 
 V. Watson, 397, 424, 457. 
 
 o. Wells, 378. 
 
 V. Wheater, 437. 
 
 u. White, 8. 
 
 ... Whiting, 119. 
 
 V. Wilkes, 378. 
 
 V. Williams, 8, 47, 507. 
 
 V. Willis, 374. 
 
 o. Wislbeer, 25. 
 
 u. Woburn, 31. 
 
 V. Yewin, ."47. 
 R. & B. R. R. Co. V. Lincoln, 275. 
 Raab's Estate, Matter of, 226. 
 Rachal v. Rachal, 102, 186. 
 Rackley v. Sanders, 117. 
 Ragan v. Echols, 42, 49. 
 Ragland v. Huntingdon, 27. 
 
 c. Wickware, 522. 
 Railroad Co. u. Ividd, 115. 
 Railsbaclc v. Koons, 176. 
 Ralph V. Brown, 57. 
 
 V. Chicago &o. R'y Co., 320. 
 Ramadge v. Ryan, 497. 
 Rambert v. Cohen, 460. 
 Rambler !•. Tryon, 484. 
 Rand v. Nevvton, 482. 
 Randall's Case, 281. 
 Randall v. Phillips, 77. 
 Randolph v. Adams, 501. 
 
 V. Govan, 106. 
 Rankell v. Phillips, 228. 
 Rankin v. Crow, 327. 
 
 V. Harman, 225. ' 
 
 V. Harper, 39. 
 Ransom v. Keyes, 106. 
 
 V. Schmela, 201. 
 Rapp V. Le Blanc, 120, 351, 356. 
 
h 
 
 XVI 
 
 TABLE OF CASES. 
 
 Ratuliff V. Wales, 273, 286. 
 Ratcliffe v. Sangston, 134. 
 liathburn v. Ross, 336. 
 Raubitshek v. Blank, 219. 
 Raulerson v. Rocker, 165. 
 Raven v. Dunning, 44. 
 Rawles v. James, 481. 
 
 V. State, 382. 
 Rawls u. Anier. Life Ins. Co., 498, 
 
 504. 
 Rawson v. Knight, 188. 
 
 V. Poindexter, 108. 
 Ray V. Bell, 341, 410. 
 
 u. Commonwealth, 289. 
 
 u. Smith, 209. 
 
 V. State, 376, 377. 
 Raymond v. Simonson, 109. 
 Raynes v. Bennett, 452, 453. 
 Raynham v. Canton, 273, 500. 
 Raynor v. Norton, 465. 
 Eea v. Smith, 1.34. 
 
 <.. Trotler, 63. 
 
 V. Tucker, 284. 
 Read v. Barker, 504. 
 
 V. James, 407. 
 
 V. Sturtevant, 237. 
 Reading v. Metcalf, 148. 
 Reading Railroad Co. l. Johnson, 01. 
 Real, Matter of, 336. 
 
 V. People, 337, 480. 
 Reay v. Packwood, 92. 
 Redden v. Inman, 173. 
 Redgrave v. Redgrave, 191, 274. 
 Redman v. Redman, 223. 
 Reece v. Johnson, 51. 
 Reed v. Boardman, 192. 
 
 V. Dick, 504. 
 
 V. Field, 125. 
 
 .■. Gilbert, 77. 
 
 V, Jones, 465. 
 
 «. People, 498. 
 
 u. Reed, 177. 
 
 V. Spaulding, 370. 
 
 V. Timmins, 480. 
 
 V. Williams, 433. 
 Reeme v. Parthemere, 119. 
 Rees V. Butler, 68. 
 
 V. Livingston, 296. 
 Reeve v. Crosby, 211. 
 Reeves v. Burton, 467. 
 
 V. Herr, 173. 
 
 V. Matthews, 46. 
 
 V. Poindexter, 320. 
 
 V. Shry, 73. 
 Reget V. Bell, 172. 
 Reich 1-. State, 257. 
 
 Reid V. Dobson, 298. 
 
 V. Hodgson, 506. 
 
 V. Piedmont &c. Ins. Co., 496. 
 
 </. Powell, 101. 
 
 V. Reid, 332. 
 
 V. Watts, 117. 
 Reigart v. Hicks, 118. 
 Reilly v. Succession of Reilly, 282. 
 Beimsdyk v. Kane, 30. 
 Remann v. Buckmaster, 173. 
 Remsy v. Duke, 460. 
 Renfro v. Kelly, 531. 
 Renwick v. Williams, 299. 
 Requa v. Requa, 298. 
 Respublica v. Duane, 517. 
 
 ,.. McCarty, 374. 
 
 1-. Roberts, 374. 
 
 V. Ross, 99. 
 
 V. Wright, 98. 
 Resseguie v. Mason, 211. 
 Revere v. Leonard, 51. 
 Revett V. Braham, 507. 
 Reyburn v. Bellotti, 507. 
 Reyes ;;. State, 340. 
 Reynolds v. Callaway, 239. 
 
 V. Lounsbury, 290. 
 
 1-. State, 422. 
 Rhen v. Jackson, 54. 
 Rhinehart v. Buckingham, 180. 
 Rhines v. Baird, 149. 
 Rhoades v. Bank, 531. 
 Rhoads v. Armstrong, 142. 
 Rhode V. Louthain, 403. 
 Rhodes v. Commonwealth, 409. 
 
 V. Myers, 56. 
 
 <-. Sherrod, 120. 
 
 V. State, 379. 
 Rice V. Gove, 113. 
 
 u. Keith, 272. 
 
 u. Martin, 202. 
 
 V. Morton, 39. 
 
 V. Motley, 217. 
 
 V. New England Marine Ins. Co., 
 353. 
 
 V. Palmer, 530. 
 
 (J. Stearns, 96. 
 
 u. Wilkins, 101." 
 Rich V. Dupree, 96. 
 
 V. Eldredge, 299. 
 
 V. Flanders, 104. 
 
 V. Husson, 107, 206. 
 'v. Jones, 142. 
 
 c. Topping, 89. 
 Richards v. Griffin, 117. 
 
 u. Laus, 58. 
 
 V. Marshman, S7. 
 
TABLE OF CASES. 
 
 Ixvii 
 
 Richards v. Kichards, 477. 
 llicliardson v. Bartley, 62, 143. 
 
 ... Carey, 55, 137. 
 
 K. Dingle, 54. 
 
 ('. Freeman, 125. 
 
 V. Hadsal, 173. 
 
 V. Hage, 299. 
 
 , . Hitclicock, 480. 
 
 V. Hunt, 54. 
 
 V. Lincoln, 92. 
 
 V. Newcomb, 510. 
 
 i\ Northrup, 483. 
 
 V. Stewart, 364, 387. 
 
 V. Stovall, 154. 
 
 V. Warner, 209, 212, 215. 
 Richnian i-. State, 431, 435, 438, 439. 
 lliclimond v. Cross, 78. 
 
 V. Richmond, 351, 360. 
 Rickerstriker v. State, 287. 
 Riddle V. Mors, 116. 
 Rideout V. Newton, 86. 
 Rider v. Ocean Ins. Co., 483. 
 Ridgely v. Dobson, 126. 
 Ridley v. Ridley, 325. 
 Rielly v. English, 234. 
 Riggins V, Brown, 480. 
 Riggs V. Taylor, 35. 
 Riley v. Butler, 324, 362. 
 
 V. Suydam, 278. 
 Riney v. Vanlandingham, 370. 
 Ring V. Jamison, 200. 
 Ringgold V. Bryan, 132. 
 
 V. Tyson, 94, 97. 
 Ripon !>. Bittel, 328, 349. 
 Rippe V. Chicago &c. R. R. Co,, 465. 
 Rison V. Cribbs, 152. 
 Rittar v. Democratic Press Co., 23. 
 Ritter r. Stutts, 17. 
 Rivara v. Ohio, 328. 
 Rivenburgh v. Rivenburgh, 285. 
 Rives V. Marrs, 96. 
 Rixey v. Boyse, 330. 
 Roach V. State, 375, 377. 
 Robb's Appeal, 62, 283. 
 Robb V. Hackley, 369, 370. 
 
 V. Lefevre, 135. 
 Robbins v. Abrahams, 268. 
 
 V. Butler, 54, 136. 
 
 V. Holman, 192. 
 
 V. Pultzs, 217. 
 
 V. Bobbins, 373. 
 Robert v. Boynton, 36. 
 Roberts v. Adams, 146. 
 
 V. Garen, 523. 
 
 V. Gee, 311. 
 
 v: Johnson, 497. 
 
 Roberts v. Keaton, 169. 
 
 I.. Roberts, 418. 
 
 V. Totten, 121. 
 
 V. Trawick, 77, 79. 
 
 V. Whiting, 73. 
 
 V. Yarboro, 235. 
 Robertson v. Allen, 79. 
 
 V. Brest, 280. 
 
 V. Carr, 370. 
 
 V. Coker, 101. 
 
 L-. Knapp, 482. 
 
 V. Lynch, 480. 
 
 V. Mills, 107. 
 
 V. Mosson, 74, 
 
 i: Stark, 473. 
 
 V. Stewart, 98. 
 Robinson v. Banks, 531. 
 
 V. Chadwick, 276. 
 
 V. Clifford, 499, 500. 
 
 V. Dana, 3. 
 
 V. Dibble, 165. 
 
 V. Frost, 37. 
 
 V. Heard, 340. 
 
 V. Hutchinson, 275. 
 
 V. Maudell, 153. 
 
 V. McFaul, 107. 
 I V. Neal, 431, 439. 
 
 r. N. Y. Central E. K. Co., 310. 
 
 V. Fitter, 341. 
 
 I/. Robinson, 231. 
 
 c. State, 332. 
 
 V. Talmadge, 283. 
 
 V. Tipton, 142. 
 
 V. Towns, 58. 
 
 t. Turner, 298. 
 
 V. Trull, 518. 
 
 V. United States, 362. 
 Robison v. Robison, 280. 
 Robson V. Kemp, 447. 
 Rocco V. Farczyk, 346. 
 
 V. State, 80. 
 Rochester v. Chester, 482, 490. 
 Rochester &e. R. R. Co. i: Budlong, 
 
 482, 483. 
 Rockford &c. R. R. Co. v. I-Iillmcr, 
 
 321. 
 Rockwood V. Poundstone, 3.50, 355. 
 Roddy V. Finnegan, 437, 444. 
 Roden v. Jaco, 68. 
 Rodgers v. Fletcher, 483. 
 Roehl !>. Baasen, 478. 
 Eoelker, Matter of, 533. 
 Roelker, Be, 517. 
 Rogers v. Ackerman, 481. 
 
 V. Brightman, 245. 
 
 V. Bullock, 528. 
 
Ixviii 
 
 TABLE OF CASES. 
 
 Rogers v. Dibble, 295. 
 
 V. Mabe, 109. 
 
 V. Manderville, 101. 
 
 V. Moore, 367. 
 
 V. Perry, 138. 
 
 V. Ritter, 505. 
 
 V. Rogers, 266, 271, 531. 
 
 V. Traders' Ins. Co., 87. 
 
 V. Turley, 74. 
 Rohrer i'. Morning Star, 88, 94, 296. 
 Roland v. State, 289, 290, 291. 
 Roll V. Maxwell, 123. 
 Rollins V. Taber, 54. 
 Romans v. Hay, 283. 
 Rome V. Dickerson, 52. 
 Rome R. R. Co. v. Sullivan, 402. 
 Romertz v. East River Nat. Bank, 343. 
 Romes v. New Orleans, 362. 
 Roney v. Kuckland, 202. 
 Rooks V. State, 392. 
 RooseTelt v. EUitliorp, 296. 
 Root V. Wright, 447. 
 Rose V. Bakemore, 440. 
 
 V. Bates, 295. 
 
 V. Blair, 276. 
 
 V. Brown, 269. 
 
 V. Niles, 273. 
 Eoselius V. Barrelli, 138. 
 Rosenbaum v. State, 345. 
 Rosenberger v. Bitting, 97. 
 Rosenvveig v. People, 346. 
 Rosevell v. Gardner, 95. 
 Rosewell's Case, 437. 
 Roshing v. Chandler, 61. 
 Ross V. Blair, 118. 
 
 u. Buhler, 49. 
 
 V. Demoss, 65. 
 
 V. Harden, 214. 
 
 V. Hayne, 420. 
 
 V. Wells, 87. 
 Rothschild v. Hatch, 197. 
 Rounds V. McCormick, 402. 
 
 V. State, 400. 
 Roundtree v. Tibbs, 350. 
 Routh V. Agricultural Bank, 267. 
 
 V. Helm, 90. 
 Rowe, Ex parte, 429. 
 
 V. Bradley, 130. 
 
 V. Brenton, 386. 
 
 V. Cockrell, 72. 
 
 V. Ware, 119. 
 Rowland v, I'lummer, 154. 
 Rowley v. McHugh, 270. 
 Rowt V. Kile, 141, 509. 
 Royal Ins. Co. v. Noble, 312. 
 Eoyall V. McKcnzic, 480. 
 
 Ruan V. Gardner, 109, 116. 
 Ruby V. State, 80, 457. 
 Rucker v. Beaty, 349. 
 
 V. Eddings, 408. 
 
 V. Pritehett, 119. 
 Ruckman v. Atwood, 173. 
 Rudolph V. Lane, 324. 
 Rudskill V. Slingerland, 330. 
 Ruloffi V. People, 254. 
 Rumsey v. People, 497. 
 Runnels v. Belden, 235. 
 Runyan u. Price, 486. 
 Runyon v. Farmers' &c. Bank, 114. 
 Rupert V. Elston, 154. 
 Rush II. Ross, 168. 
 
 V. Smith, 407. 
 Rushing v. Rushing, 197. 
 Rushmore v. Hall, 406. 
 Rusk V. Sowerwinc, 26, 27. 
 Russ !•, War Eagle, 269. 
 Russell V. Ashley, 530. 
 
 ^. Coffin, 367. 
 
 V. Horn Pond Branch R. R. Co., 
 482. 
 
 V. McKenzie, 113. 
 
 u. State, 498. 
 Rust V. Bennett, 194. 
 
 V. Shackleford, 422. 
 Ruston's Case, 5. 
 Ruth V. Ford, 276. 
 Rutherford v. Branch Bank, 470. 
 
 V. Com., 431. 
 
 V. Hennen, 116. 
 Rutter V. State, 49. 
 Ryan r. Couch, 392. 
 
 V. Follansbee, 282. 
 
 V. People, 337, 402. 
 Ryder v. Alton &c. E. R. Co., 126. 
 
 V. Buckmaster, 101. 
 Ryerss v. Trustees, 37. 
 
 S. 
 Sackett v. Spencer, 465. 
 Sadler v. Murrah, 397. 
 Sailord v. Lawrence, 30, 36. 
 Sage V. Sherman, 116. 
 Sager v. State, 338. 
 Sales V. Cay, 113. 
 Salisbury v. Harwinton, 124. 
 Saltmarsh v. Bower, 154, 474. 
 Saltmash v. Tuthill, 89. 
 Salvo V. Duncan, 504. 
 Sanborn r. Babcock, 324. 
 
 V. Lang, 191, 283. 
 Sanchez v. People, 350, 403. 
 Sanderlin v. Sanderlin, .893. 
 
TABLE OF CASES. 
 
 Ixix 
 
 Sanderlin v. Shaw, 83. 
 Sanders v. Tailing, 531. 
 Sanderson's Case, 432, 438. 
 Sanderson r. Marks, 119. 
 
 V. Nashua, 349. 
 
 V. Sanderson, 165. 
 Sandford v. Eighth Ave. K. E. Co., 
 
 111. 
 Sands v. Robison, 80. 
 Sanford v. Chase, 528, 529. 
 
 V. Ellithorp, 219. 
 
 V. Howard, 69. 
 
 V. Sanford, 210. 
 
 V. Shepard, 482. 
 Santissima Trinidad, The, 323. 
 Sapp V. King, 530. 
 Sarbach v. Jones, 4. 
 Sargeant v. Sargeant, 57. 
 Sargent v. Cavis, 531. 
 Sartorious v. State, 391. 
 Sassen v. Clark, 276. 
 Satterlee v. Bliss, 160. 
 Saunders v. Addis, 134. 
 
 o. Carroll, 186. 
 
 V. Duval, 112. 
 
 u. Hendrix, 283. 
 Saurman r. Bodey, 90. 
 Sawyer, In re, 16. 
 
 V. Alton, 124. 
 
 17. Mitchell, 37. 
 
 V. Sawyer, 422. 
 
 V. Tappan, 76. 
 
 V. Ware, 133. 
 Scales V. Southern Hotel Co., 70. 
 Scarry v. Eldridge, 276. 
 Schafer v. Schafer, 454. 
 Schaffner v. Renter, 276. 
 Schall V. Miller, 454. 
 Schaser v. State, 417. 
 Scheifer v. Kahlman, 199. 
 Sehell V. State, 23. 
 Schenck v. Corshen, 123. 
 
 V. Griffin, 327. 
 
 u. Mercer Co. Mut. Ins. Co., 504. 
 Schenly v. Commonwealth, 346. 
 Schermerhorn v. Schermerhorn, 29, 
 43. 
 
 <;. Tyler, 483. 
 Scherpf v. Szadeczky, 273. 
 Scherrer v. Kaufman, 218. 
 Schettler v. Jones, 465. 
 Schillinger v. M'Cann, 75, 297. 
 Schintzer v. Adelson, 208. 
 Schley v. Merritt, 90. 
 Schmidt v. Kreismer, 181. 
 
 II. Peoria Marine Ins. Co., 503. 
 
 Schmild v. Frank, 278. 
 Schnader v. Schnader, 104,'297. 
 Schnek v. Hager, 319. 
 Schnier v. People, 391. 
 SchoU V. Miller, 454. 
 School District f. Rogers, 96. 
 Sehoonmaker v. Wolford, 218. 
 Schott V. Benson, 531. 
 Schratz v. Schratz, 194. 
 Schuchardt v. Aliens, 393. 
 Schultz V. State, 287. 
 
 ,;. Third Ave. R. R. Co., 337. 
 Schutes II. Hodgson, 432. 
 Schuylkill v. Copely, 18, 20. 
 Schuylkill Nav. Co. v. Harris, 110. 
 Schwartz v. Chickering, 464. 
 Sconce v. Henderson, 173. 
 Scott V. Bandy, 104, 105. 
 
 0. Hooper, 12, 14. 
 V. Jester, 114, 403. 
 V. Jones, 44. 
 
 V. Lifford, 142. 
 V. Lloyd, 38, 93. 
 V. McClellan, 52, 56. 
 
 1. McLellan, 88. 
 V. State, 340. 
 
 V. The Plymouth, 56. 
 
 V. Wakins, 106. 
 
 ii. Watkins, 89. 
 
 V. Wells, 116. 
 
 V. Woodward, 387. 
 Scripps II. Foster, 451. 
 Scroggin v. Holland, 200. 
 Scruggs V. Gibson, 371. 
 Scull V. Mason, 55, 97. 
 Seabrook v. Brady, 283. 
 Scale V. Chamblis, 345. 
 Sealeyii. State, 328, 34L 
 Seaman ». Babington, 187. 
 Seamans v. Smith, 481, 503. 
 Searcy v. Miller, 329. 
 Seargent v. Seward, 266. 
 Sears v. Dillingham, 109, 128. 
 
 V. Shafet, 395, 486. 
 Seaver v. Boston &c. R. R. Co., 504, 
 505. 
 
 V. Robinson, 529. 
 Seavy v. Dearborn, 355, 469. 
 Second &c. Soc. v. First &c. Soc, 37. 
 Second Ward Bank ti. Shakman, 365. 
 Sedgwick v. Sedgwick, 160. 
 
 V. Watkins, 281. 
 Seeley v. Engell, 90, 298. 
 Segee a. Thomas, 152. 
 Seibles v. Blackwell, 479. 
 Seidell v. Peckworth, 113. 
 
Ixx 
 
 TABLE OF CASES. 
 
 Seigling ;;. Main, 275. 
 Seip V. Stdrch, 294. 
 Seitzinger v. Eidgway, 72. 
 Selby V. Clayton, 37. 
 
 V. Hills, 528. 
 Selden v. Bank of Commerce, 473. 
 Selkirk v. Waters, 207. 
 Sells V. Hoare, 389. 
 Selover v. Eexford, 470. 
 Selser v. Ferriday, 75. 
 Semere v. Semere, 186. 
 Semon v. People, 372. 
 Sentney v. Overton, 54. 
 Sewis ;;. Beatty, 38, 42. 
 Sessions v. Richmond, 229. 
 Setzar v. Vf ilson, 447. 
 Severance v. Carr, 395. 
 Severn v. State Bank, 209, 219. 
 Seward v. Garlin, 318. 
 Sewell r. Fitch, 116. 
 
 V. Gardner, 355. 
 Sexton V. Brock, 397. 
 
 V. North Bridgewater, 483. 
 Segforth v. St. Louis &c. li. K. Co., 
 
 481. 
 Seymour v. Black, 131, 142. 
 
 c. Bradfield, 213. 
 
 r. Harvey, 402. 
 
 V. Strong, 147. 
 
 V. Wilson, 134. 
 Shaak's Estate, 273. 
 Shackelford v. State, 408. 
 
 V. Wheeler, 142. 
 Shafer v. Bean, 180. 
 Shaffer v. CJark, 227. 
 
 V. Richardson, 284. 
 Shannon v. Faller, 111, 294. 
 
 V. McMullin, 101. 
 
 c. State, 354. 
 Shantz v. Stoll, 285. 
 Sharman v. Morton, 448. 
 Sharon v. Hill, 327. 
 Sharp V. Long, 62. 
 
 V. Morrow, 107. 
 
 „. State, 335. 
 Shattuck V. Hammond, 372. 
 
 V. State, 82. 
 
 V. Stoneham Branch K. R. Co., 
 483. 
 Shaver v. Ehle, 97. 
 Shaw, Ex parte, 517. 
 
 f. Cunningham, 231. 
 
 V. Davis, 116. 
 
 V. Emery, 330, 340. 
 
 V. Moore, 12. 
 Shawneetown v. Mason, 477, 479. 
 
 Shay r. Commonwealth, 47. 
 
 V. People, 21. 
 
 V. Pettees, 87. 
 Shearman v. Hart, 362. 
 Shedden v. Patrick, .361. 
 Sheer i\ .Austin, 142. 
 Sheetz v. Hanbest, 227. 
 Shefield v. Rochester &c. R. E. Co., 
 
 405. 
 Sheibley ;;. Hill, 168. 
 Shelby v. Smith, 119, 146. 
 Sheldon v. Kendall, 192. 
 
 V. Wood, 420. 
 Shellabarger v. Nafus, 306. 
 Shellenbarger v. Norris, 36. 
 Shelley v. Lash, 101. 
 Shelton v. Hampton, 355. 
 
 V. State, 496. 
 
 V. Tomlinson, 54. 
 Shennit v. Brueggestradt, 319. 
 Shepard, Re, 527. 
 
 „. Ashley, 503. 
 
 V. Palmer, 116. 
 
 V. Ward, 103. 
 Shephard v. Payson, 186. 
 Shepherd v. McClain, 205. 
 Sheridan v. Medara, 295. 
 Sherlock v. Ailing, 177. 
 Sherman v. Barrett, 526. 
 
 V. Blodgett, 480. 
 
 v. Brown, 532. 
 
 V. Bruce, 113. 
 
 V. Scott, 64, 215. 
 
 V. Sherman, 447. 
 Sherron v. Humphreys, 133. 
 Sherwood v. Hiel, 283. 
 
 V. Hubbel, 141. 
 Shiedley v. State, 468. 
 Shields v. Cunningham, 339, 410. 
 
 V. Guffey, 396. 
 Shildon v. Booth, 504. 
 Shine v. Kedwine, 78. 
 Shippen v. Wells, 527. 
 Shiras v. Morris, 116. 
 Shirk V. Vanneman, 51. 
 Shober v. Jack, 201. 
 Shockey v. Mills, 394. 
 Shoemaker v. McKee, 276. 
 Shomburg v. Commagere, 94. 
 Shook I'. Pate, 465. 
 Short V. Mercier, 433. 
 
 „. State, 431, 432, 43T. 
 
 17. Tinsley, 282. 
 Shortz V. Unangst, 125. 
 Shotwell V. Morris, 424. 
 Shrom v. AVilliams, 87. 
 
TABLE OF CASES. 
 
 Ixxi 
 
 Shropshire r. Shropshire, 133. 
 Shulte V. Hennessey, 50, 504. 
 Shultz V. Lindell, 501. 
 
 i: State, 402. 
 ShurtlefE v. Willard, 295. 
 Sibley V. Lutnbert, 88, 97. 
 Siclcles V. Gould, 480. 
 Sideways v. Dyson, 344. 
 Sidgreaves v. Myatt, 391. 
 Sieran v. Keenan, 362. 
 Sigourney v. Sibley, 298. 
 Sika u. Chicago &o. R. Co., 244. 
 Sikes V. Paine, 503. 
 Sillebrand, Ex parte, 454. 
 Siltzell V. Michael, 35. 
 Silver V. Worcester, 189. 
 Simkins v. Eddie, 285. 
 Simmons v. Carrier, 503. 
 
 V. Parsons, 73. 
 
 17. Simmons, 239. 
 
 V. State, 98, 377. 
 Simons v. Monier, 483. 
 
 V. Payne, 425, 525. 
 
 o. Sisson, 214. 
 
 V. Smith, 137. 
 Simonton v. Yongue, 64. 
 Simpson v. Bovard, 117. 
 
 u. Hall, 120. 
 
 i,. Smith, 407. 
 Sims V. Givan, 57, 403. 
 
 V. Killen, 73. 
 
 t/. Randal, 58. 
 
 ... Sims, 20, 51, 53, 3-36. 
 
 V. State, 335. 
 Sinclair v. Jackson, 25, 313. 
 
 V. Roush, 482. 
 Singleton's Will, 388. 
 Sipple V. State, 308. 
 Sisson r. Cleveland &e. E. R. Co., 
 475. 
 
 13. Conger, 328, 350, 355, 486. 
 Sitlingtons v. Brown, 85. 
 Skellinger v. Howell, 355, 356. 
 Skeltoii V. Tomlinson, 123. 
 Skillen v. Skillern, 177. 
 Skillenger v. Bolt, 143. 
 Skinner u. Perot, 17, 19. 
 Skipper v. Georgia, 365. 
 Slack V. Moss, 94, 95. 
 Sladden v. Sergeant, 342. 
 Slade V. Joseph, 306. 
 Slater v. Wilcox, 498. 
 Slaughter v. Birdwell, 520. 
 Slauter v. Whitelock, 388. 
 Sleeper v. Van Middlesworth, 331. 
 Sloan V. Bangs, 104. 
 
 Sloan V. Briant, 167. 
 
 V. Edwards, 366. 
 
 c. Maxwell, 484. 
 
 V. State, 48. 
 Slocum V. Newby, 64. 
 Smalley v. EUet, 56. 
 Smcad r. Williamson, 132, 266. 
 Smiley v. Dewey, 35. 
 Smith's Appeal, 195. 
 Smith, Re, 218. 
 
 V. Allen, 140. 
 
 V. Asbill, 52. 
 
 u. Bainbridge, 134. 
 
 V. Balch, 203. 
 
 V. Barber, 123, 124. 
 
 V. Barger, 516, 519. 
 
 c. Bell, 144, 147. 
 
 V. Boston &c. R. R., 275. 
 
 V. Burnet, 205. 
 
 V. Carrington, 54. 
 
 .... Castles, 337. 
 
 V. Chase, 91. 
 
 V. Cheney, 96. 
 
 0. Coffin, 12, 13. 
 
 V. Commonwealth, 478. 
 
 V. Coopers, 130. 
 
 V. Cross, 209. 
 
 V. Downs, 53, 88. 
 
 V. Dreer, 417. 
 
 V. Elder, 57. 
 
 B. Fairbanks, 301. 
 
 V. Fell, 448. 
 
 V. Gafford, 402. 
 
 e. Grimes, 306. 
 V. Gugerty, 504. 
 ». Harris, 147. 
 
 V. Hathorne, 219. 
 
 „. Haynes, 223. 
 
 V. Henry, 346. 
 
 V. Hill, 481. 
 
 V. Hutchings, 395. 
 
 V. Johnson, 181. 
 
 u. Knight, 107. 
 
 V. Kobbe, 482. 
 
 V. Lambeth, 111. 
 
 V. Masters, 372. 
 
 V. Moore, 30. 
 
 V. Morgan, 78, 97, 370. 
 
 V. Morrow, 73. 
 
 V. Natchez Steamboat Co., 136. 
 
 V. N. Carolina R. R. Co., 33. 
 
 V. Newton, 142, 308. 
 
 t). Northern Bank, 92. 
 
 I'. Richmond, 96. 
 
 I'. Rosenliaur, 176. 
 
 f. Sergeant, 211, 219. 
 
Ixxii 
 
 TABLE OP CASES. 
 
 Smith V. Smith, 9, 87, 192, 285. 
 
 V. State, 101, 340, 363, 378, 385, 
 392, 479. 
 
 .,. Stickney, 369, 370. 
 
 V. Swarthout, 244. 
 
 V. Talassee Branch of Central 
 Plank-Eoad Co., 126. 
 
 t. Thorne, 97. 
 
 V. Ulman, 214. 
 
 I. Vestress, 70. 
 
 ... Weeks, 361. 
 
 .;. West, 145. 
 
 c. White, 52. 
 
 V. Wilbur, 516. 
 
 V. Witton, 200. 
 Smithwick v. Anderson, 92. 
 
 V. Evans, 17, 308. 
 SmuU V. Jones, 301. 
 Smyth V. Banks, 528. 
 
 I/. Bradstreet, 101. 
 
 i: Oliver, 26. 
 
 V. Strader, 941. 
 Sneckner v. Taylor, 275. 
 Sneed v. Creath, 308. 
 Snell V. Bray, 272. 
 
 V. Parsons, 203. 
 
 V. Westport, 192, 285. 
 Snelling v. Watrous, 528. 
 Snow V. Batchelder, 296. 
 
 V. Boston & Maine E. R. Co., 
 483. 
 
 t/. Carpenter, 285. 
 
 V. Eastern E. E. Co., 33. 
 
 V. Paine, 476. 
 Snowden v. Idaho Quartz Mfg. Co., 
 
 504. 
 Snyder v. Iowa City, 532. 
 
 V. May, 293. 
 
 V. Nations, 6. 
 
 V. Snyder, 394, 399, 404. 
 
 V. Wilt, 89, 483. 
 Sohey v. Thomas, 321. 
 Sodusky v. McGee, 427, 437. 
 Solander v. People, 24, 255. 
 Somerville v. Crook, 211. 
 Somerville &c. B. R, Co. i;. Doughty, 
 
 418. 
 Sontag, Ex parte, 457. 
 Sorg V. First German Cong., 125, 491. 
 Sorrelle v. Craig, 332. 
 Soul V. Dawes, 93. 
 Soules 0. Burton, 365. 
 Southard v. Cashing, 129. 
 
 ^. Eexford, 373, 432, 437, 438. 
 
 r. Wilson, 98, 148. 
 Souttiern &c. Co. u. Cole, 126. 
 
 Southern Life Ins. Co. v. Wilkinson; 
 
 479. 
 Southey v. Nash, 391. 
 Soutlivvestern R. R. Co. v. Papot, 
 
 169. 
 Soutliwick V. Southwick, 276, 453. 
 Sowers v. Dulces, 474. 
 Spann v. Ballard, 77. 
 
 V. Brown, 138. 
 Sparhawk v. Buell, 267. 
 Sparks v. Kohler, 159. 
 Sparr v. Wellraan, 473. 
 Spaulding v. Bull, 128. 
 
 V. Conway, 283. 
 
 f. Hallenheck, 210. 
 
 V. Smith, 104. 
 
 V. Strange, 476. 
 Spear v. Richardson, 395, 473, 479, 
 
 493, 498. 
 Spears i'. Burton, 78. 
 
 V. Forrest, 330. 
 
 V. Nugent, 186. 
 
 V. Snell, 7. 
 Speer v. See Yup Co., 28. 
 Speigner v. Cooner, 531. 
 Spence v. Mitchell, 56. 
 Spenceley d. De Willott, 410. 
 Spencer v. Barnum, 116. 
 
 V. St. Paul &c. R. R. Co., 483. 
 
 v. Trafford, 191. 
 
 V. White, 855. 
 Sperden v. State, 507. 
 Sperry r. Moore, 406. 
 Speyerer v. Bennett, 227. 
 Spiva V. Stapleton, 503. 
 Spivey V. State, 335. 
 
 I'. Platon, 282. 
 Sprague v. Swift, 210. 
 Spratt u. State, 457. 
 Sprigg V. Negro Mary, 26. 
 Spring V. Lovett, 96. 
 Spring &c. Insurance Co. v. Evans 
 
 464. 
 Spurr V. Pearson, 51, 55. 
 Squire v. Wright, 409. 
 Stackhouse v. Ilorton, 484. 
 Stacy V. Graham, 365. 
 Stadeker v. Jones, 197. 
 Stafford Lord, Trial of, 347, 348. 
 
 V. Ames, 134. 
 
 V. Rice, 90, 94. 
 Stahle f. Spohn, 339. 
 Stall V. Catskill Bank, 53, 127, 2C6. 
 Stallings v. Carson, 53. 
 
 V. Hinson, 155. 
 Stambflugh v. Smith, 504. 
 
TABLE OF CASES. 
 
 Ixxiii 
 
 Stamper v. Griffin, 367. 
 
 State V. Bradley, 289. 
 
 Stampofski v. Stiffens, 305, 323. 
 
 V. Brant, 327. 
 
 Standbridge v. Catanach, 228. 
 
 .,. Brantley, 319. 
 
 Standefer v. Chisholm, 56. 
 
 a. Breeden, 329. 
 
 Standen v. Standen, 273. 
 
 0. Brewer, 458. 
 
 Stanford v. Horwitz, 190. 
 
 i,. Brien, 48. 
 
 V. Murphy, 169, 452. 
 
 V. Brinkhaus, 371. 
 
 Stanley v. Scliultz, 270. 
 
 o. Brittain, 83. 
 
 V. Stanton, 268. 
 
 V. Brookshire, 391. 
 
 V. State, 479. 
 
 u. Broughton, 81. 
 
 Stanly v. Hodges, 532. 
 
 V. Brown, 287, 288, 312. 
 
 Stansbury v. Marks, 522. 
 
 V. Bruce, 331. 
 
 Stanton v. Wilson, 163. 
 
 0. Bruner, 48. 
 
 Stanton County v. Canfield, 411. 
 
 V. Brunetto, 486. 
 
 Stape V. People, 346, 366, 875. 
 
 V. Brunson, 98. 
 
 Stapleton v. King, 82. 
 
 V. Bryan, 343. 
 
 Starks v. People, 327, 367, 368. 
 
 V. Bryant, 223. 
 
 Starkweather v. Mathews, 57. 
 
 V. Buffington, 453. 
 
 Starr v. Cragin, 338. 
 
 V. Buie, 373. 
 
 V. Johnson, 88. 
 
 V. Burlingham, 289. 
 
 u. Tracy, 425. 
 
 V. Burnside, 289. 
 
 State V. A. W., 98. 
 
 V. Butler, 519. 
 
 V. Able, 465. 
 
 V. Calvin, 48. 
 
 V. Abrams, 339. 
 
 V. Cameron, 253. 
 
 u. Adams, 407. 
 
 V. Cardoza, 361, 409, 462. 
 
 V. Ah Chuey, 430. 
 
 <>. Carr, 35. 
 
 V. Alexander, 330. 
 
 V. Carter, 45, 452, 453. 
 
 V. Alford, 410, 419. 
 
 V. Cartright, 83. 
 
 V. Allen, .S77. 
 
 V. Castello, 309. 
 
 V. Anderson, 19, 494. 
 
 ,■. Chandler, 20. 
 
 V. Anthony, 275. 
 
 V. Cheek, 462, 465, 503. 
 
 V. Armstrong, 287. 
 
 V. Cherry, 327. 
 
 V. Atherton, 145. 
 
 V. Clark, 54, 487, 496. 
 
 u. Ayer, 82. 
 
 V. Clinton, 327, 510. 
 
 V. Bacon, 424. 
 
 V. Clump, 47. 
 
 V. Bailey, 427, 441. 
 
 V. Coatney, .36. 
 
 V. Balb, 478. 
 
 V. Cohn, 249, 414. 
 
 V. Barrow, 247. 
 
 V. Coleman, 480. 
 
 V. Bartlett, 101, 249, 254, 
 
 V. Collins, 463, 468. 
 
 „. Beal, 327. 
 
 V. Colwall, 462. 
 
 V. Bebee, 457. 
 
 I,. Condry, 416. 
 
 V. Benner, 80, 345, 395. 
 
 u. Connell, 248. 
 
 V. Bennett, 120, 291. 
 
 V. Connor, 23. 
 
 V. Benoit, 23. 
 
 V. Cook, 25, 63, 498, 
 
 I. Bernard, 310. 
 
 t>. Cooper, 12, 315, 316, 367 
 
 V. Betsall, 312, 313. 
 
 V. Cowan, 307. 
 
 V. Bilansky, 338, 437. 
 
 V. Cox, 327. 
 
 V. Bixby, 248. 
 
 v.Cuellar, 500. 
 
 V. Black, 287, 432, 443. 
 
 u. Damery, 295, 336. 
 
 V. Blaisdell, 22. 
 
 !/. Darrington, 248. 
 
 V. Blennerhassett, 47, 1J9. 
 
 V. Davidson, 101, 288, 429. 
 
 u. Blocker, 524. 
 
 v. Davis, 288, 376. 
 
 V. Blodgett, 98. 
 
 V. Denis, 417. 
 
 V. Borden, 228, 288. 
 
 V. Dennin, 370. 
 
 </. Boswell, 329, 334. 
 
 I. Dennis, 6. 
 
 V. Bowman, 496, 498. 
 
 t,. DeWolf, 6. 
 
lx> 
 
 TABLE OF CASES. 
 
 State V. Doherty, 12. 
 V. Donovan, 402. 
 V. Douglass, 435, 447. 
 i;. Downliani, 27. 
 „•. Drake, 247. 
 V. Drawdy, 289. 
 V. Dudley, 291. 
 V. Duffy, 438, 439. 
 V. Dumphy, 49. 
 V. Dunlop, 48, 49. 
 V. Dyer, 288. 
 V. Eagan, 329. 
 V. Eddings, 256. 
 V. Edwards, 49, 432, 438, 439, 
 
 530. 
 V. Efler, 327. 
 </. Elkins, 319. 
 V. EUold, 346. 
 V. Enochs, 443. 
 u. Everest, 55. 
 V. Ezell, 361. 
 V. Fahey, 186. 
 (. . Farrow, 54. 
 V. Fassett, 81. 
 c. Fay, 444. 
 o. Felter, 495, 497. 
 u. Fitzslmmons, 391. 
 0. Flanders, 248, 403. 
 V. Foley, 20. 
 o. Folwell, 479, 480. 
 o. Ford, 378. 
 V. Foster, 54, 437. 
 «. Fox, 83. 
 <^. Freeman, 82. 
 V. Gardner, 18, 291. 
 V. Garvey, 476. 
 V. Gates, 320. 
 c. Gemmill, 101. 
 V. George, 361. 
 i>. Gibbs, 457. 
 <,. Gigher, 247. 
 V. Givens, 509. 
 V. Glass, 256, 495. 
 V. Grace, 517. 
 V. Graff, 377. 
 V. Graham, 25. 
 V. Grant, 329, 370. 
 V. Gregory, 409. 
 V. Griffin, 27. 
 I'. Guyer, 310. 
 V. Hardin, 327. 
 V. Harrington, 252. 
 V. Harston, 23. 
 V. Hart, 329, 331. 
 o. Hartigan, 419. 
 V. Hartnell, 410. 
 
 State 
 
 i: Harvey, 187. 
 
 . Hassett, 54, 510. 
 
 . Hatfield, 443, 520. 
 
 . Hayden, 343. 
 
 . Hazen, 291. 
 
 . Heed, 373. 
 
 . Henderson, 222, 247. 
 
 . Hendricks, 370. 
 
 . Hennessy, 377. 
 
 . Hickman, 340. 
 
 . Hincle, 491. 
 
 . Hing, 312. 
 
 . Hinkle, 498. 
 
 . Holland, 375. 
 
 . HoUoway, 4, 113, 299. 
 
 . Hopkins, 433. 
 
 . Hopper, 516. 
 
 . Hoppiss, 419. 
 
 . Home, 414, 420. 
 
 . Howard, 375, 377. 
 
 . Hoxsie, 313. 
 
 . Hoyt, 450. 
 
 . Huff, 200, 330, 444. 
 
 . Hughes, 9, 292. 
 
 . Hussey, 288. 
 
 . Ivins, 374. 
 
 . Jackson, 6. 
 
 . Jacobs, 436. 
 
 . Jenkins, 48. 
 
 . Johnson, 321, 348, .395. 
 
 . Jones, 47, 291, 312, 317, 352. 
 
 . K , 443. 
 
 . Kellerman, .377. 
 
 . Kelly, 249, 328. 
 
 . Kelsoe, 335. 
 
 . Keyes, 18. 
 
 . Killet, 16. 
 
 . Kinney, 374. 
 
 . Kirkpatrick, 329. 
 
 . Klinger, 495. 
 
 . Knapp, 498. 
 
 . Knights, 498. 
 
 . Laffer, 200. 
 
 . Langdon, 413. 
 
 . Lanier, 332. 
 
 . Larkin, 308. 
 
 . Lautensch lager, 495. 
 
 . Lawborn, 337. 
 
 . Lawlor, 340, 378. 
 
 . Lawrence, 255. 
 
 . Laxton, 374. 
 
 . LeBlanc, 7. 
 
 . Levy, 8, 293. 
 
 . Litchfield, 312, 376, 459. 
 
 . Lomber, 376. 
 
 . Lonsdale, 440. 
 
TABLE OF GASES. 
 
 Ixxv 
 
 State 1 
 
 e V. Lull, 395, 461, 463. 
 
 State r. Owen, 414. 
 
 u. Lyons, 460. 
 
 V. Parish, 366, 385. 
 
 V. Maguire, 315, 316. 
 
 .;. Parrot, 288. 
 
 V. Mangum, 222. 
 
 V. Patterson, 346, 348, 427, 437 
 
 V. March, 337. 
 
 ^. Peace, 319. 
 
 V. Marler, 340. 
 
 .;. Perry, 388. 
 
 „■. Marshall, 431. 
 
 V. Pettaway, 273. 
 
 „. Martin, 49. 
 
 V. Petty, 370. 
 
 V. Maxwell, 348. 
 
 V. Phair, 490, 507. 
 
 V. McCartney, 346. 
 
 !;. Phelps, 98. 
 
 V. McConkey, 83. 
 
 .. Pike, 188, 486, 489, 496. 
 
 u. McCorJ, 287. 
 
 V. Porter, 414. 
 
 V. McHonalil, 80, 340. 
 
 c. Poteet, 52, 53. 
 
 V. McDowell, 27. 
 
 V. Potter, 312, 313. 
 
 V. McElmurry, 392. 
 
 t». Potts, 321. 
 
 u. McGinnis, 314. 
 
 u. Powell, 82. 
 
 V. McGlothlen, 372. 
 
 u. Pray, 55. 
 
 V. McGlynn, 203, .'!38. 
 
 V. Quarles, 442. 
 
 „. McGrew, 119, 289. 
 
 V. Queen, 48. 
 
 V. McKennan, 55. 
 
 <■. Eandolph, 17, 308. 
 
 V. McKenzie, 377. 
 
 V. Rankin, 310. 
 
 V. McLane, 317. 
 
 V. Rash, 27. 
 
 V. McLaughlin, 414. 
 
 V. Rawls, 468. 
 
 V. McNinch, 309. 
 
 V. Red. 414. 
 
 V. McQueen, 348. 
 
 V. Reddick, 497, 498. 
 
 I'. Meadows, 331. 
 
 V. Reed, 341. 
 
 ... Miller, 307, 460, 465, 480, 509. 
 
 V. Reitz, 480. 
 
 V. Mills, 47. 
 
 V. Richards, 374. 
 
 u. Mims, 83. 
 
 V. Richie, 6, 7. 
 
 V. Mix, 318. 
 
 u. Ridgely, 19, 20. 
 
 u. Montgomery, 3.38. 
 
 V. Roberts, 47, 346. 
 
 1,. Mooney, 25, 290. 
 
 c. Robinson, 83. 
 
 u. Moor, 290. 
 
 f. Rnmaine, 372. 
 
 V. Moore, 327. 
 
 i: Rosabacher, 361, 421. 
 
 V. Morea, 7. 
 
 V. Rugan, 329. 
 
 .,. Morris, 480. 
 
 V. Russell, 312. 
 
 V. Mosely, 147. 
 
 V. Rvan, 290. 
 
 V. Moulton, 287. 
 
 u. Salge, 392. 
 
 V. MulhoUand, 340. 
 
 V. Sanders, 314. 
 
 V. Mullen, 10. 
 
 V. Sargent, 346. 
 
 u. Murphy, 497. 
 
 „. Sater, 331. 
 
 V. Nash, 49, 247, 272. 
 
 u. Sayers, 409. 
 
 V. Nelll, 289. 
 
 V. Scanlon, 7. 
 
 V. Nelson, 366. 
 
 V. Schilling, 398. 
 
 V. Nettleton, 99. 
 
 ^. Schlagel, 377. 
 
 V. Nichols, 372, 443. 
 
 u. Schoenwald, 318. 
 
 V. Niles, 374. 
 
 V. Scott, 296, 388, 422. 
 
 V. Nixon, 521. 
 
 V. Secrist, 296, 510. 
 
 I/. Norris, 353. 
 
 V. Shannehan, 340. 
 
 V. Nowell, 442. 
 
 „. Shaw, 45. 
 
 V. Nutting, 403. 
 
 V. Sheets, 498. 
 
 V. Ober, 444. 
 
 V. Shields, 24, 308, .329. 
 
 V. Odell, 377, 378. 
 
 I: Shinborn, 479, 480, 507. 
 
 V. Offnutt, 81. 
 
 V. Shock, 83. 
 
 V. O'Neal, 3.S4. 
 
 V. Shurtliff, 98. 
 
 V. Osborne, 223. 
 
 1-. Silver, 420. 
 
ixxvi 
 
 TABLE OP CASES. 
 
 State i 
 
 e V. Simpson, 101. 
 
 State V. Williamson, 375. 
 
 ,,•. Slagh, 498. 
 
 V. Willingham, 409. 
 
 V. Sloan, 291, 292. 
 
 V. Willis, .377. 
 
 V. Smalls, 378. 
 
 V. Wilson, 286, 484. 
 
 u. Smallwood, 306. 
 
 u. Windsor, 497. 
 
 V. Smith, 319, 393, 409, 496, 497, 
 
 „. Witham, 256, 260, 414, 417. 
 
 498, 516. 
 
 r. Wood, 82, 492, 497, 498. 
 
 u. Soper, 457. 
 
 c. Woodside, 63. 
 
 V. Sparrow, 391. 
 
 i.: Woodward, 126. 
 
 i". Spaulding, 345. 
 
 V. Worthing, 289. 
 
 ... Spence, 506. 
 
 1-. Young, 47. 
 
 u. Spencer, 48, 319. 
 
 ... Zellers, 891, 517. 
 
 V. Staley, 345. 
 
 c. Zorn, 316, 328. 
 
 V. Stallings, 329. 
 
 State Bank v. Littlejohn, 118. 
 
 V. Stanley, 378. 
 
 V. Khoads, 227. 
 
 u. Stanton, 99. 
 
 u. Seawell, 96. 
 
 V. Staples, 477. 
 
 Staunton v. Parker, 451. 
 
 V. Stebbins, 375. 
 
 Staup V. Com., 49. 
 
 V. Stewart, 48, 247, 315. 
 
 Steamboat !;. Logan, 504. 
 
 V. Stotts, 25. 
 
 Steam Nav. Co. t'. Dandridge, 115. 
 
 V. Sullivan, 372. 
 
 Stearns v. Mechanics' Bank, 351. 
 
 V. Swain, 316. 
 
 V. Wright, 203. 
 
 V. Taylor, 352, 460. 
 
 Stebbins v. Anthony, 285. 
 
 V. Thibeau, 346. 
 
 V. Sackett, 52, 298. 
 
 V. Thomas, 370, 409. 
 
 Steele !■. Payne, 139. 
 
 V. Thompson, 103. 
 
 V. Phoenix Ins. Co., 142. 
 
 V. Thornton, 877. 
 
 u. Stewart, 448. 
 
 V. Tirrell, 498. 
 
 V. Ward, 218. 
 
 V. Tompkins, 507, 510. 
 
 Steen v. State, 287. 
 
 V. Tosney, 338. 
 
 Steene v. Aylesworth, 398. 
 
 V. Townsend, 15. 
 
 Steer v. Little, 404. 
 
 V. Treadway, 331. 
 
 Steffen v. Bauer, 276. 
 
 ,.. Trumbull, 517, 519. 
 
 Steigers v. Gross, 46. 
 
 V. Truss, 120. 
 
 Stein V. Bowman, 267, 274, 275. 
 
 V. Turner, 25, 414. 
 
 ./. Burden, 504. 
 
 v. Twitty, 299. 
 
 u. McArdle, 422. 
 
 u. Underwood, 28. 
 
 V. Robertson, 75. 
 
 u. Valentine, 19. 
 
 V. Weidman, 78, 282. 
 
 V. Vaughan, 55. 
 
 Steinbach v. Columbian Ins. Co., 355 
 
 o. Vincent, 370. 
 
 Steinberg v. Meany, 281. 
 
 V. Wallman, 83. 
 
 Steinheimer v. Coleman, 404. 
 
 i,. "Walsh, 517. 
 
 Steininger t'. Hoch, 79. 
 
 V. "Ward, 368, 427, 507. 
 
 Steinmetz v. Currie, 93. 
 
 V. "Waterman, 290. 
 
 Stemmons v. Duncan, 131. 
 
 „. "Watson, 836, 375, 503, 505. 
 
 Stephens v. Cotterell, 227. 
 
 V. Weber, 389. 
 
 V. People, 517. 
 
 V. "Weir, 25. 
 
 Steptoe I'. Read, 30. 
 
 V. "Welch, 291. 
 
 Sterling v. Arnold, 168. 
 
 ^. "Wentworth, 437, 444. 
 
 V. Marietta Company, 127. 
 
 V. West, 47. 
 
 Sterling Bridge Co. v. Pearl, 480. 
 
 0. Whit, 340. 
 
 Sterner v. State, 401. - 
 
 V. Whitaker, 27. 
 
 Sternkeller v. Newton, 469. 
 
 V. White, 448, 495. 
 
 Stetson V. Godfrey, 405. 
 
 V. Whitten, 98. 
 
 Steumbaugh v. Hallam, 324. 
 
 V. Whittier, 0. 
 
 Stevens v. Brown, 173, 409. 
 
 V. Williams, 23, 125, 319. 
 
 „. Campbell, 181. 
 
TABLE or CASES. 
 
 Ixxvii 
 
 Stevens v. Colby, 142. 
 
 0. Hall, 203. 
 
 1-. Hartley, 226. 
 
 D. Irwin, 334. 
 
 u. Lynch, 92. 
 
 «. "West, 501. 
 
 V. Wliitcomb, 525. 
 
 u. Zachary, 169. 
 Stevenson v. Chapman, 131. 
 
 V. Mudgett, 148. 
 
 u. Simmons, 127. 
 
 V. Walker, 367. 
 Steviok V. Commonwealth, 248. 
 Steward v. Richardson, 113. 
 Stewart v. Chadwick, 74. 
 
 V. Conner, 52, 62. 
 
 V. Fowler, 74. 
 
 v. Glenn, 112. 
 
 V. Huntington Bank, 127. 
 
 V. Kip, 54, 101. 
 
 V. Kirk, 173, 297. 
 
 V. Lake, 297. 
 
 ... People, 370, 406. 
 
 u. Redditt, 484. 
 
 V. Saybrook Township, 125. 
 
 V. Spedden, 78, 484. 
 
 0. Stewart, 266, 272. 
 
 V. Stocker, 56. 
 
 V. Turner, 424, 432. 
 Stiles V. Hooker, 102. 
 Stille V. Lynch, m. 
 Stilwell V. Carpenter, 208, 317, 32.3, 
 
 304. 
 Stimmel v. Underwood, 137. 
 Stitt V. Huidekopers, 319. 
 St. John !,'. Amer. Mut. Life Ins. Co., 
 
 129. 
 Stobber v. State, 319. 
 Stober v. McCarter, 282. 
 Stockham v. Jones, 46, 54. 
 Stocking V. State, 312. 
 Stockton V. Demutli, 355. 
 Stoddard v. Mix, 54. 
 Stoddert v. Manning, 293. 
 Stokes V. Kane, 57. 
 
 u. Mowatt, 356. 
 
 V. State, 332, 436. 
 Stolp V. Blair, 370. 
 Stonam v. Waldo, 498. 
 Stone V. Bibb, 128. 
 
 V. Covell, 482. 
 
 V. State, 379. 
 
 u. Stone, 71. 
 
 V. Vance, 94, 96. 
 
 V. Watson, 479. 
 Stoneclpher v. Hall, 173. 
 
 Stones V. Byron, 65. 
 Storer v. Logan, 89. 
 Storms V. Storms, 284. 
 Story V. Saunders, 300, 351. 
 Stothard v. AuU, 114. 
 Stover V. Bluehill, 36. 
 
 (/. People, 255. 
 Stow V. Gregory, 101. 
 
 V. Sewall, 65. 
 Stowe V. Berkshire Cong. Soc, 125. 
 
 V. Cook, 173. 
 Strafford Bank v. Cornell, 116. 
 Strang v. Wilson, 97. 
 Strange v. Graham, 156. 
 Stratton v. Perry, 68. 
 
 c: State, 367. 
 Straublier v. Mohler, 173. 
 Straw V. Greene, 85. 
 Strawbridge v. Cartledge, 55. 
 
 •:;. Spann, 297, 396, 401. 
 Street v. Meadows, 106. 
 Streeter c. Sawyer, 402. 
 Strein v. Zeigler, 532. 
 Strickland v. Wynn, 118. 
 Strike v. McDonald, 73. 
 Stringfellow v, Marriotte, 114. 
 
 u. Montgomery, 235. 
 
 V. State, 394. 
 Stroh V. Hess, 100. 
 Strong V. Clawson, 67. 
 
 c. Connell, 419. 
 
 V. Dean, 211. 
 
 V. Dickenson, 528. 
 
 V. Finch, 79. 
 
 r. Grannis, 91. 
 Strother v. Lucas, 509. 
 Stroud V. Tilton, 9. 
 Struthers v. Kendall, 115. • 
 Stuart V. Allen, 22. 
 
 V. Lake, 295, 299. 
 
 V. State, 494. 
 Stuckey v. Bellah, 155. 
 Studley v. Hall, 82. 
 Stuhlmuller v. Ewing, 282. 
 Stule V. Leis, 145. 
 Stump r. Napier, 94. 
 
 V, Roberts, 56. 
 Suit V. Bonnell, 411. 
 Sullivan v. Collins, 323. 
 
 V. Williams, 187. 
 Summer v. Cooke, 279. 
 Summerbell v. Summerbell, 373. 
 Summers v. Moseley, 407. 
 
 V. State, 457, 532. 
 
 c. U. s; Ins. Co., 503. 
 
 „. Wallace, 130. 
 
Ixxviii 
 
 TABLE OF CASES. 
 
 Sumner v. Blair, 408. 
 
 . . Crawford, 346. 
 
 V. State, 53o. 
 Sumpter v. State, 25. 
 Sunday v. Gordon, 324. 
 Sunnyside, The, 500. 
 Supples V. Cannon, 454. 
 Sutherland v. McLaughlin, 31. 
 Suton V. Delaware Ins. Co., 499. 
 Sutton V. Fox, 23. 
 
 r. Sutton, 110. 
 Swails r. Coverdill, 61. 
 Swampseott Mach. Co. u. Walker, 62, 
 
 355. 
 Swan V. Middlesex, 480, 482. 
 
 u. Moore, 187. 
 
 V. People, 310. 
 Swanzey v. Parker, 30, 134. 
 Swartout v. N. Y. Cent. R. R. Co., 489. 
 Swariz V. Chickering, 191. 
 Sweaney x\ Hunter, 532. 
 Swearingen v. Fields, 116. 
 Sweeny v. Easter, 88, 94, 95. 
 Sweet V. Law, 216. 
 
 r. Slieriuan, 367, 372. 
 Sweetser v. Lowell, 50C, 507, 510. 
 Sweetzer v, Meece, 74. 
 Sweezey i'. Collins, 180. 
 Swctt V. Black, 116. 
 
 I . Shumway, 338. 
 
 V. Stubbs, 188. 
 Swift V. Dean, 295. 
 
 ,,. Ellsworth, 176. 
 
 c. Fitzhugh, 73. 
 
 V. Swift, 432. 
 Swinney v. Dornian, 154. 
 Swisher v. Williams, 130. 
 Svvofford t. Gray, 78. 
 Sydleman v. Beckwith, 475, 478, 499. 
 Sykes v. Dunbar, 80, 81. 
 Sylvester v. Downer, 77. 
 
 c. State, 16, 18. 
 Syme v. Broughton, 223. 
 Symonds v. Peck, 206. 
 Sypher v. Long, 61. 
 
 Taaks v. Schmidt, 531. 
 Tabor v. Ward, 223. 
 Taft V. Kyle, 319. 
 Tacket v. May, 266, 329. 
 Talbot V. Clark, 296. 
 
 <-. Talbot, 283. 
 Talladega Ins, Co. -. Landers, 294. 
 Tallnian v. Dutcher, 139. 
 Talmagc v. Burlingnmo, 43. 
 
 Taney v. Kemp, 424. 
 Tanner r. Taylor, 464, 467. 
 Tappan, Matter of, 434. 
 Tappan v. Butler, 300, 
 Tarble v. Underwood, 89. 
 Tardiff v. Baudoin, 310. 
 Tarleton u. Johnson, 298. 
 Tarnsey v. Turner, 357. 
 Tate V. Tate, 373. 
 Tattersall v. Hass, 403. 
 Tatum V. Lofton, 425, 525. 
 
 C-. Manning, 284. 
 
 V. Mohr, 610. 
 Taulman v. State, 287. 
 Taunton Bank v. Richardson, 35. 
 Taylce t'. Riggs, 35. 
 Taylor v. Beck, 93, 94, 
 
 V. Clendening, 330, 
 
 V. Commonwealth, 70, 101, 329. 
 
 V. Foster, 448. 
 
 V. Galland, 101. 
 
 V. Gitt, 61. 
 
 u. Grand Trunk R. R. Co., 203. 
 
 u. Hancock, 37. 
 
 V. Henderson, 106. 
 
 V. Jennings, 424, 427, 428. 
 
 ^. Kelly, 141. 
 
 c. Larkin, 101, 454. 
 
 V. Luther, 74. 
 
 V. McCuue, 91, 
 
 <;. Mclrvin, 433, 
 
 V. McMahan, 530. 
 
 V. Monnot, 33. 
 
 c. Moore, 128. 
 
 u. Paterson, 186. 
 
 V. State, 16, 18. 
 
 V. Town, 478, 
 
 V. Town of Monroe, 488. 
 
 1.. Vermont &c. R. R. Co., 531. 
 
 V. Whiting, 142. 
 
 V. Wood, 425. 
 Teall V. Barton, 489. 
 Tebbetts v. Haskins, 503. 
 Tebo V. Baker, 519, 
 Tedens v. Schumers, 367, 
 Teele v. Byrne, 405. 
 Teerpenning v. Coon &c. Ins. Co., 481. 
 Teese v. Huntington, 332. 
 Tefft V. Wilcox, 495. 
 Tegarden v. Powell, 187. 
 Temple v. Com., 442, 
 
 V. Ellett, 79, 
 Templeton v. People, 511, 
 Ten Eyck r. Bill, 54, 139. 
 Tenner v. Lewis, 278. 
 Tenny v. Evans, 82. 
 
TABLE OF CASES. 
 
 Ixxix 
 
 Terhune v. Henry, 112. 
 Terrell v. Butterfield, 177. 
 Territory v. Corbett, 25, 377, 451. 
 
 V. Davis, 314, 
 
 V. Kinney, 375, 377, 378. 
 
 V. Maliaffey, 378. 
 Terry v. Dayton, 218. 
 
 V. McNeil, 328. 
 
 V. State, 305, 329. 
 Texas v. Chiles, 152. 
 Thatcher v. Kaucher, 481. 
 Thayer v. Barney, 409. 
 
 V. Boyle, 5, 331. 
 
 u. Grossman, 94, 95. 
 
 V. Davis, 492. 
 
 V. Gallup, 340. 
 
 u. Providence Ins. Co., 503. 
 Theall v. Steitz, 212. 
 Thom V. Wilson, 111. 
 Thomas, Re, 530. 
 
 V. Brady, 105. 
 
 V. Brown, 129. 
 
 V. Catheral, 281. 
 
 V. Commonwealth, 81. 
 
 u. David, 347. 
 
 V. Graham, 41. 
 
 V. Kelly, 223. 
 
 V. Maddan, 284. 
 
 u. Mohler, 107. 
 
 u. Newton, 437. 
 
 V. State, 291, 354, 403, 414, 422. 
 
 0. Thomas, 165. 
 Thomason v. Dill, 410. 
 Thomasson v. Kennedy, 56. 
 
 a. State, 422. 
 Thompson v. Armstrong, 91. 
 
 V. Bank of Gettysburg, 89. 
 
 V. Bertrand, 477, 479. 
 
 u. Blanchard, 207, 355, 350. 
 
 V. Boyle, 499. 
 
 l: Carberry, 118. 
 
 V. Commonwealth, 289. 
 
 V. Dickhart, 483. 
 
 V. Franks, 104. 
 
 V. German Valley R. Co., 424. 
 
 ,.. Hall, 480. 
 
 V. Hewitt, 68. 
 
 V. Hodges, 531. 
 
 V. Moiles, 481. 
 
 V. Poston, 420. 
 
 D. Shaeffer, 176. 
 
 V. Silvers, 454. 
 
 V. State, 374. 
 
 V. Towle, 134. 
 
 V. Wadleigh, 272. 
 Thorn v. Conchman, 481. 
 
 Thorn v. Moore, 350, 355, 357. 
 Thornburgh v. Hand, 409. 
 Thornton v. Adkius, 169. 
 
 f. Blaisdell, 43. 
 
 u. Hook, 406. 
 
 V. Lane, 70. 
 
 I. Stoddert, 101. 
 
 u. Thornton, 354, 419. 
 Thorp V. Amos, 72. 
 Thorpe v. Wray, 428. 
 Thrall v. Seward, 105. 
 Thrasher v. Pike &c. K. R. Co., 126. 
 Thurman v. Virgin, 329, 520, 531. 
 Thurmon v. Trammell, 384. 
 Thurston v. Mauro, 116. 
 
 V. Wliitney, 12. 
 Tibbetts v. Flanders, 346, 474. 
 
 V. Sternberg, 465, 466. 
 Tiffany v. Lord, 482. 
 Tifft V. Moor, 337. 
 Tilden v. Gardner, 92. 
 Tilley i'. State, 144. 
 Tillinghast i'. Nourse, 169. 
 Tindle v. Nichols, 82, 457. 
 Tinney v. N. J. Steamboat Co., 503, 
 
 512. 
 Title V. Grevet, 432. 
 Titlow V. Titlow, 484. 
 Titus V. BuUen, 531. 
 
 V. O'Connor, 210, 219. 
 Tobey v. Leonards, 144. 
 Todd V. Boone County, 52. 
 
 u. Dysart, 75. 
 
 V. Hardy, 92, 319. 
 
 u. Luckett, 186. 
 
 V. Stafford, 94. 
 
 V. "Warner, 481. 
 Toledo &c. R. R. Co. e. Smith, 481. 
 Tome u. Parkersburg &c. R. 1{. Co., 
 
 509. 
 Tomkins v. Beers, 106. 
 Tomlin v. Hilyard, 393. 
 Tomlinson v. Lynch, 267. 
 
 I,. Spencer, 92, 114, 159. 
 Tompkins v. Curtis, 66. 
 Tooker v. Gormer, 339. 
 Tooley v. Bacon, 210, 219. 
 Topham v. McGregor, 464. 
 Topping V. Van Pelt, 99. 
 Torque v. Carrillo, 157. 
 Torrance v. Hurst, 394, 473. 
 Totten V. United States, 424. 
 Towle V. Leavitt, 116. 
 Town V. Lampshire, 279. 
 
 V. Needham, 276, 296. 
 
 V. Wood, 132. 
 
Ixxx 
 
 TABLE OF CASES. 
 
 Townley v. Wooley, 116. 
 
 Town of St. Charles v. O'Mailey, 313. 
 
 Towns V. Alford, 143, 398, 403. 
 
 Townsdin v. Nutt, 479. 
 
 Townsend v. Brundage, 480. 
 
 V. Bush, 90, 94. 
 
 V. Gibbs, 192. 
 Townsend Manufacturing Co. v. Fos- 
 ter, 323. 
 Townshend v. Townshend, 118, 485. 
 Tracy v. Kelley, 177. 
 Trafton v. Hawes, 276. 
 Trammel v. Thomas, 432. 
 
 V. McDade, 390. 
 Transp. Line v. Hope, 490, 495, 504. 
 Traphagan v. Traphagan, 210. 
 Trapnall v. Burton, 125. 
 Travis v. Brown, 509. 
 Treadwell v. Graham, 222. 
 
 v. Wells, 465. 
 Treasurer v. Nail, 101. 
 Tremper v. Conklin, 212, 219. 
 Treon v. Brown, 87, 94. 
 Trepp V. Barker, 280. 
 Troup V. Price, 197. 
 Trow V. Shannon, 210, 218. 
 Troxdale v. States, 366. 
 Truman v. Lore, 101. 
 Truscott V. Davis, 94. 
 Truss V. State, 376. 
 Trustees of Wahash &c. Canal v. Bled- 
 soe, 465. 
 Trustees of Watertown v. Cowen, 124. 
 TuckeT V. State, 257, 289. 
 
 i,. Welsh, 296. 
 
 V. Whitehead, 79. 
 
 t'. Wilamonicz, 94. 
 
 u. Williams, 322, 503. 
 
 v. Willis, 235. 
 TuUey v. Alexander, 267. 
 Tullis V. State, 347, 416. 
 TuUock V. Cunningham, 63. 
 Tung Yeong, In re, 28. 
 Tunno v. Robert, 165. 
 Tuolumne &c. Co. v. Columbia &c. Co., 
 
 126, 160. 
 Turley v. Brewster, 134. 
 TurnbuU v. Commonwealth, 289. 
 Turner v. Austin, 101. 
 
 u. Cheesman, 486. 
 
 V. Davis, 57. 
 
 r. Foxall, 363. 
 
 V. Jordan, 108. 
 
 V. Lazarus, 91. 
 
 V. Mcllhancy, 159. 
 
 f . Parry, 28. 
 
 Turner v. State, 288. 
 
 V. Turner, 533. 
 
 u. Waterson, 57. 
 Turney v. State, 370, 397. 
 Turnipseed v. Hawkins, 506. 
 Turnpike Co. v. Burdett, 127. 
 Turpin v. State, 287. 
 Tute V. James, 237. 
 Tuthill V. Davis, 94. 
 Tuttle V. Robinson, 469. 
 
 V. Russell, 328. 
 
 V. Turner, 58, 135. 
 Twamble v. Henley, 74. 
 Twiss V. George, 194. 
 Twitty V. Houser, 230. 
 Twogood V. Hoyt, 501. 
 Twombly v. Leach, 497. 
 Tyler v. Coolbaugh, 57. 
 
 u, Fomeroy, 347. 
 
 V. State, 354. 
 
 V. Todd, 507, 510. 
 
 V. Trabue, 56. 
 
 U. 
 Uhl i\ Commonwealth, 20, 330. 
 Ulmer v. State, 312. 
 Underwood t'. Waldron, 489, 504. 
 Union Bank v. Knapp, 53. 
 
 V. Meeker, 116. 
 
 V. Owen, 126. 
 
 V. Ridgley, 126. 
 
 V. Torrey, 414. 
 Union Canal Co. v. Loyd, 126. 
 Union Pac. R'y Co. v. Harris, 531. 
 Union R'y Co. v. Kallaher, 305. 
 United States i: Addate, 289. 
 
 c. Angell, 395. 
 
 c. Babcock, 527. 
 
 V. Barrels of High Wines, 418. 
 
 V. Becksler, 375, 376. 
 
 u. Biebusch, 19, 23, 304. 
 
 u. Black, 248. 
 
 V. Borger, 310, 315. 
 
 V. Brockins, 18, 20. 
 
 <■. Brown, 23. 
 
 V. Butler, 510. 
 
 V. Caldwell, 519. 
 
 t. Canton, 524. 
 
 V. Cigars, 152. 
 
 V. Clarke, 35. 
 
 V. Clements, 47, 83. 
 
 r. Coolidge, 389, 522. 
 
 V. Craig, 427. 
 
 V. Darnaud, 438. 
 
 u. Davidson, 47. 
 
 0. De Vaughan, 438. 
 
TABLE OF CASES. 
 
 Ixxxi 
 
 United States v. Dickinson, 19^ 346, 
 394, 410, 427. 
 V. Duff, 307. 
 V. Edmie, 528. 
 V. Fenwick, 47. 
 i,. Fitton, 288. 
 V. Flemming, 375. 
 V. Flowery, 411. 
 V. Freeman, 55. 
 V. Gibert, 390. 
 V. Guiteau, 456. 
 (,. Hanwny, 25, 48. 
 i;. Harris, 376. 
 V. Hawthorne, 152, 248. 
 V. Henry, 24. 
 ... High Wines, 360. 
 o. Hill, 624. 
 V. Holmes, 370. 
 V. Horn, 290. 
 u. Howe, 533. 
 D. Hunter, 48, 527. 
 u. Johns, 127. 
 V. Jones, 22. 
 V. Kennedy, 12. 
 ^. Kessler, 313. 
 V. Lancaster, 24. 
 V. Leffler, 94, 99. 
 V. Lynn, 432. 
 V. Masters, 330. 
 V. McCarthy, 438, 442. 
 V. McGlue, 483. 
 V. Millar, 438. 
 u. Moore, 517. 
 V. Moses, 432, 456. 
 V. Murphy, 86. 
 
 ^. Neverson, 345, 370, 375, 376. 
 V. One Case of Pencils, 276. 
 V. One Distillery, 376. 
 V. Patterson, 120. 
 V. Porter, 18. 
 V. Rutherford, 21. 
 V. Schindler, 294, 337. 
 V. Scholfield, 21. 
 c. Shorter, 290. 
 V. Smallwood, 288. 
 V. Smith, 376, 425, 442. 
 V. Strother, 432. 
 u. Three Tons of Coal, 442. 
 C7. Troap, 24. 
 V. Van Sickle, 330. 
 „. Wade, 289. 
 V. Watkins, 355. 
 V. White, 14, 330, .345. 
 t. Willard, 477. 
 V. Wilson, 120, 422. 
 V. Wood, 373. 
 
 United States v. Woods, 336. 
 United States Bank v. Stearns, 116. 
 United States Express Co. v. Anthony, 
 475. 
 V. Hutchins, 319. 
 Unthank v. Turnpike Co., 127. 
 Updegraff v. Rowland, 69. 
 Upton V. Adams, 44. 
 ' c. State, 375, 377. 
 Uran v. Hondlette, 68. 
 Utica Ins. Co. v. Cadwell, 126. 
 Utley V. Merrick, 21. 
 Utt V. Long, 69. 
 
 V. 
 
 Vaillant v. Dodemead, 459. 
 Vairin v. Canal Ins. Co., 56. 
 Vaise v. Delavel, 82. 
 Van Alstyne v. Van Alstyne, 219. 
 Vance v. Campbell, 152. 
 
 (. Collins, 90. 
 
 V. Haslett, 82. 
 
 V. Vance, 367. 
 Van Cort v. Van Cort, 285. 
 Vandee v. Burpee, 503. 
 Vander Donckt v. Thellusson, 490. 
 Van Deusen v. Van Slyck, 45. 
 
 V. Young, 482. 
 Vandiver v. Glaspy, 117, 266. 
 Van Duser v. Bissell, 531. 
 Van Duzor v. Allen, 318. 
 Van Gelder v. Van Gelder, 211. 
 Van Huss v. Rainbolt, 421, 484. 
 Vanraeter v. McFaddin, 102. 
 Van Nuys v. Terhune, 54, 74. 
 Van Pelt v. Van Pelt, 6. 
 Vansant v. Boileau, 109. 
 Van Shaack v. Stafford, 88, 90. 
 Van Valkenberg u. Railway Bank, 
 
 206. 
 Van Wyck v. Mcintosh, 219. 
 Vamer y. Goldsby, 143. 
 Varona v. Socarras, 327, 388. 
 Vason V. Merchants' Bank, 58. 
 Vasseur v. Livingstone, 212, 384. 
 Vaughan v. Paine, 427. 
 
 I'. Parr, 323. 
 
 V. Weslover, 411. 
 ■Vaughn v. Scade, 39. 
 Vauter v. Ohio &c. R. R. Co., 410. 
 Veatch v. State, 310. 
 Veiths V. Hagg, 295. 
 Venable's Case, 373. 
 Vence v. Speir, 531. 
 Vernon v. Tucker, 327. 
 Vesey v. Benton, 202. 
 
XXXll 
 
 TA.BLE OF CASES. 
 
 Tigel V. Hopp, 364. 
 Vinal V. Burrill, 43, 44. 
 Vincent v. Huff, 142. 
 
 V. State, 8. 
 Vining v. Wooten, 299. 
 Vinton v. Peck, 507, 609. 
 Vinyard v. Brown, 110. 
 Virgin v. Wingfield, 129, 167. 
 Voiles V. Voiles, 177. 
 Voorhees v. Jones, 205. 
 Votair v. Dieiil, 393. 
 Vowles V. Young, 267, 277. 
 
 W. 
 Waddams v. Humphrey, 267. 
 Waddel v. Moore, 75. 
 Wade, Succession of, 282. 
 Wade V. Hardy, 200. 
 
 V. Joiinson, 283. 
 
 V. Lynch, 142. 
 
 V. Powell, 275. 
 
 V. Pulsifer, 237. 
 
 V. State, 7, 392. 
 
 V. Thayer, 360. 
 Wadhams v. Turnpike Co., 51. 
 Wadsworth i'. Heermans, 213, 
 Wafeord v. State, 325. 
 Waggener v. Dyer, 143. 
 Waggonseller v. Rexford, 280. 
 Wagner v. Jacoby, 475. 
 
 V. People, 418. 
 
 V. Robinson, 169. 
 Wainwright v. Straw, 114. 
 Waite V. State, 490, 497. 
 Wake V. Lock, 140. 
 Wakefield's Case, 274. 
 Wakefield v. Ross, 12. 
 Wakely v. Hart, 45, 40. 
 Walden v. Smith, 109. 
 Waldman v. Orommelin, 155. 
 Walker's Case, 389. 
 Walker v. Barnes, 68. 
 
 V. Blassingame, 9. 
 
 11. Burbridgo, 235. 
 
 1-. Clifford, 177. 
 
 V. Collier, 296, 
 
 V. Copley, 186. 
 
 u. Coursin, 299. 
 
 V. Dunspaugh, 395. 
 
 u. Ferrin, 137, 138. 
 
 V. Fields, 492, 493, 604. 
 
 V. Forbes, 499. 
 
 V. Hill, 205. 
 
 V. McKnight, 37. 
 
 </. Mock, 112. 
 
 V. Sanborn, 188, 283. 
 
 Walker v. Skeene, 238, 206. 
 
 ■u. State, 329, 604. 
 
 V. Stevenson, 367. 
 
 V. Walker, 271, 414, 421, 484, 438. 
 
 V. Wingfield, 187. 
 Wall v. Bry, 186. 
 
 V. Nelson, 74, 270. 
 
 V. Williams, 393. 
 Wallace v. Goodall, 501. 
 
 V. Mayor &c., 219. 
 
 V. McElevy, 97. 
 
 c. New York, 207. 
 
 t. Peck, 113. 
 
 V. State, 306. 
 
 V. Taunton Street R. R. Co., 400, 
 412. 
 Wallach v. Wylie, 358. 
 Waller v. Gibbs, 42. 
 
 V. Parker, 133. 
 Wallis V. Britton, 282. 
 
 u. Nelson, 230. 
 
 V. Randall, 476. 
 Walmsley v. Hubbard, 66. 
 Walpole V. Alexander, 528. 
 Walsh V. Kelly, 401. 
 
 V. Murphy, 65. 
 
 V. Wright, 173. 
 Walsh V. Porterfield, 418. 
 Walter v. Kearney, 17. 
 Walters v. Smith, 93. 
 
 V. Witherell, 93, 94. 
 Walthall V. Walthall, 155. 
 Waltman v. Herdic, 228. 
 Walton V. Shelley, 55, 87, 93, 95, 
 288. 
 
 V. Toralin, 43. 
 Wampler v. Wampler, 142. 
 Wamsley ?;. Crook, 201. 
 Ward V. Bradwell, 115. 
 
 V. Chase, 104, 133. 
 
 V. Coulter, 104. 
 
 V. Griffin, 113. 
 
 V. Hay den, 44. 
 
 r. People, 437. 
 
 V. Plats, 216. 
 
 u. Reynolds, 481. 
 
 u. Shaw, 424. 
 
 V. State, 331, 435, 439, 440. 
 
 V. Tyler, 93. 
 
 V. Valentine, 310. 
 
 V. Ward, 194. 
 
 u. Whitney, 116. 
 
 V. Woorthurn, 105. 
 Ware v. Bennett, 57, 115. 
 
 u. .Jordan, 58. 
 
 c. State, 270. 
 
TABLE OF CxVSES. 
 
 Lxxxiii 
 
 Ware v. Ware, 345, 370, 484. 
 Warfleld v. State, 47, 49. 
 Waring v. Henry, 154. 
 
 i>. Waring, 4. 
 Warne v. Prentiss, 71. 
 Warner v. Carleton, 133. 
 
 V. Dyelt, 270. 
 
 o. Lucas, 438, 440. 
 
 «. Percy, 131. 
 
 V. Daniels, 294. 
 
 ... State, 6, 435. 
 
 u. Turner, 61. 
 Warren, Ex parte, 28. 
 
 V. Gabriel, 355. 
 
 V. Merry, 88, 92. 
 
 V. Warren, 517. 
 Warrick, Ex parte, 305. 
 
 V. Hull, 269. 
 Washburn v. Alden, 44. 
 
 V. People, 7. 
 Washing v. Wright, 107. 
 Washington v. Bedford, 278. 
 
 V. State, 345. 
 Washington &c. Road v. State, 53. 
 Washington Bank v. Palmer, 127. 
 Washington Pirst Nat. Bank v. Eccles- 
 
 ton, 191. 
 Wassell V. Armstrong, 158. 
 Watchman, The, 296. 
 Waterhury Brass Co. v. New York &c. 
 
 Co., 504. 
 Waters v. Burnet, 70. 
 Watkins v. Turner, 278. 
 
 V. Wallace, 394. 
 
 V. Watkins, 154. 
 Watry v. Hiltgen, 483. 
 Watson's Case, 80, 440. 
 Watson's Estate, 227. 
 Watson V. Bailey, 211. 
 
 V. Bauer, 481. 
 
 V. Commonwealth, 377. 
 
 V. Lisbon Bridge, 127. 
 
 V. McLaren, §8. 
 
 «. Russell, 180. 
 
 V. Smith, 61. 
 
 V. State, 377. 
 
 V. Walker, 469. 
 Watts V. Garrett, 300. 
 
 .,. Holland, 110, 391. 
 
 V. Sawyer, 467. 
 
 V. Smith, 99. 
 
 u. Van Nees, 532. 
 Waugenheim v. Childs, 134. 
 Waver v. Waver, 211, 219. 
 Way i: Arnold, 54. 
 
 V. Butterworth, 81, 
 
 Weatherhead v. Sewell, 340. 
 Weathers v. Barksdale, 330. 
 Weave v. K. & X>. M. Ry. Co. 480. 
 Weaver v. Alabama &c. Co., 142, 
 504. 
 
 V. Bracken, 114. 
 
 u. Lapsley, 394. 
 
 V. Morgan, 156. 
 Web V. Page, 533. 
 Webb V, Danforth, 54. 
 
 V. Pitch, 37. 
 
 u. Kelley, 138. 
 
 a. Page, 532. 
 
 V. Pindergrass, 27. 
 
 V. State, 367, 492, 495. 
 
 V. Wilshire, 95. 
 Webber v. Eastern E. R. Co., 483. 
 
 V. Hanke, 331. 
 Weber v. Kingsland, 395. 
 Webster v. Calden, 340. 
 
 V. Clark, 462, 468, 469. 
 
 V. Lee, 409, 424. 
 
 u. Mann, 16. 
 
 ». Vickers, 94. 
 Weed !,•. Bishop, 32. 
 Weeks v. Prescott, 69. 
 Weems v. Weems, 281, 485. 
 Wehrkamp v. Willett, 276, 33r, 
 Weigel, Succession of, 77, 298. 
 Weikel v. Probasco, 266. 
 Weil V. Tyler, 61. 
 Weinstein v. Patrick, 223. 
 Webb V. Smith, 450. 
 Welch V. Pranklin Ins. Co., 346. 
 Welcome v. Batehelder, 424, 454, 462. 
 Welden v. Buck, 296. 
 
 o: State, 377. 
 
 V. Burch, 427, 442. 
 Weller v. Poundlhig Hospital, 122. 
 Wells V. Fisher, 274. 
 
 c: Fletcher, 274. 
 
 V. Jackson &c. Manufacturing Co., 
 398. 
 
 V. Kelsey, 481. 
 
 V. Lane, 125. 
 
 V. Pach, 106. 
 
 V. Padgett, 373. 
 Welsh V. State, 21. 
 Wendell v. George, 88. 
 Wentworth v. Crawford, 55, 408. 
 
 V. Wentworth, 188. 
 Wernag v. C. & A. R. E. Co., 468. 
 Wertz V. May, 367. 
 Wesson v. Wasliburn Iron Co., 482. 
 West V. Brunn, 154. 
 
 V. Creditors, 67. 
 
Ixxxiv 
 
 TABLE OF CASES. 
 
 West V. Lynch, 336. 
 
 i). State, 343, 509, 520. 
 
 V. The Berlin, 109. 
 
 V. Tuttle, 518. 
 Westerman v. "VVesterman, 276. 
 Western Ins. Co. v. Tobin, 504. 
 Westlake v. St. Lawrence Ins. Co., 482. 
 West Newbury i: Chase, 482. 
 Weston V. Hunt, 106. 
 Wcstover v. iEtna Life Ins. Co., 450. 
 West. Union Tel. Co. v. B. & 0. Tel. 
 
 Co., 448. 
 Wetherell v. Patterson, 473. 
 Wethersby v. Huddleston, 186. 
 Wetherspoon v. Killough, 532. 
 Wetmore v. Cliclc, 134. 
 
 V. Peck, 210. 
 Whartley v. Pearnley, 66. 
 Wharton v. Lewis, 387. 
 
 V. State, 317. 
 Whatley v. Johnson, 100. 
 Wheaton v. Wilmarth, 90. 
 Wheelden v. Wilson, 188. 
 Wheeler v. Arn9ld, 194. 
 
 V. Blandin, 475. 
 
 V. Emmerson, 37. 
 
 V. Hill, 447. 
 
 u. Towns, 77. 
 
 V. Wlieeler, 267. 
 Wheeler & Wilson Manufacturing Co. 
 
 V. Tinsley, 278. 
 Whelchell v. State, 47. 
 Whelpley v. Lader, 79, 218, 457. 
 Whetstone v. Bank at Montgomery, 
 
 393. 
 Whipp V. State, 289. 
 Whipple V. Cumberland Cotton Co., 
 531. 
 
 V. Lansing, 41. 
 
 V. Stevens, 91. 
 Whitaker v. Brown, 96. 
 
 V. Groover, 167. 
 
 V. Salisbury, 354. 
 Whitamore v. Waterhouse, 137. 
 Whitbeck v. New York &c. R. E. Co., 
 
 503. 
 Whitcomb's Case, 522. 
 White's Estate, 227. 
 White V. Ambler, 462. 
 
 V. Bailey, 118, 422, 484. 
 
 V. Burns, 89. 
 
 V. Cuyler, 278. 
 
 V. Derby, 76. 
 
 V. Dinkins,'409. 
 
 V. Fox, 80. 
 
 iy. Green, £8, 
 
 White V. Hawn, 388. 
 
 V, Heavner, 24. 
 
 V. Helmes, 27. 
 
 V. Inhabitants of Pliillipston, 125. 
 
 V. Jones, 108. 
 
 V. Kibling, 92. 
 
 V. Perry, 282, 283, 453. 
 
 V. Stafford, 266, 269. 
 
 V. State, 312, 353, 394, 437. 
 
 V. Tucker, 105, 149, 460. 
 
 V. Tudor, 108. 
 Whiteford u. Burckmeyer, 89, 303. 
 
 V. Monroe, 92. 
 Whitehead v. Bank of Pittsburgh, 108. 
 
 V. Foley, 271. 
 
 V. Smith, 219, 209. 
 White Mountains E. E. Co. t. East- 
 man, 127. 
 White Water Valley Canal Co. o.. 
 
 Dow, 300, 301, 388. 
 Whitfield V. Whitfield, 197, 481. 
 Whiting V. Gould, 54. 
 
 V. Ivey, 187. 
 Whitman v. Boston &c. R. E., 482. 
 Whitmor i: Rucker, 173. 
 Whitmore v. Bowman, 483. 
 Whitney r. Bayley, 318. 
 
 V. City of Boston, 481, 482. 
 
 (/. Eastern E. E. Co., 355. 
 
 ■u. Hey wood, 134. 
 
 V. Pierce, 520. 
 
 r. Shippen, 227. 
 Whittaker v. Parker, 512. 
 Whitten v. State, 321. 
 Whittier v. Franklin, 479. 
 Whittingliam v. Bloxham, 386. 
 Whittlesey v. Kellogg, 501. 
 Whizenant v. State, 478. 
 Wicks V. Smalbrook, 19. 
 Widgery v. Munroe, 87. 
 Wier V. Buford, 270. 
 Wiggin V. Freewill Church, 126. 
 
 u. Plumer, 112, 365. 
 Wiggins V. HoUcy, 478. 
 
 V. Holman, 327, 341. 
 
 V. Wallace, 505. 
 Wightman ;;. Coates, 372. 
 
 V. Overhiser, 402. 
 Wike V. Lightner, 329, 333. 
 Wilcocks V. Phillips, 79. 
 Wilcox V. Hill, 85. 
 
 V. Todd, 276. 
 Wilder v. Mann, 41. 
 
 V. Peabody, 334. 
 
 r. Welsh, 529. 
 Wildey v. Whitney, 212. 
 
TABLE OF CASES. 
 
 Ixxxv 
 
 Wilds V. Blanchard, 330. 
 Wiley V. Hunter, 238. 
 Wilhelmi v. Leonard, 408. 
 Wilke V. People, 287. 
 Wilkes V. McClung, 58. 
 Wilkie V. Chadwick, 521. 
 Wilkins v. Baker, 209, 215. 
 
 V. Malone, 425, 442. 
 
 V. Stidger, 61. 
 Wilkinson v. Davis, 345. 
 
 V. Pearson, 486. 
 
 i;. Pittsburg Farmers' &c. Turn- 
 pike Co., 141. 
 Willard v. Carter, IIG. 
 
 c. Goodenough, 334. 
 
 V. Kamsburg, 85. 
 Willcox V. Jackson, 181. 
 
 V. Smith, 112. 
 Willett V. Fister, 306. 
 Willey V. Portsmouth, 300, 393. 
 
 V. Satling, 323. 
 William v. State, 287. 
 William & Mary College v. Powell, 
 
 282. 
 William Harris, The, 116. 
 Williams v. Banks, 93. 
 
 V. Barrett, 181. 
 
 u. Beard, 42. 
 
 c. Brailsford, 93. 
 
 V. Brown, 494, 499. 
 
 V. Com., 373. 
 
 V. Cummins, 100. 
 
 V. Davis, 228. 
 
 V. Dewitt, 478. 
 
 V. Frost, 33. 
 
 u. Hall, 100. 
 
 V. Jarrot, 395. 
 
 V. Johnson, 223, 277. 
 
 V. Jones, 52. 
 
 V. Kelsey, 70. 
 
 .;. Lee, 484. 
 
 u. Lenoir, 233. 
 
 V. Maitland, 41. 
 
 V. Matthews, 97. 
 
 V. McDowell, 169. 
 
 V. Miller, 97, 465. 
 
 V. Mitchell, 145. 
 
 V. Montgomery, 458. 
 
 V. People, 248. 
 
 f. Poppleton, 498. 
 
 V. Soutter, 107, 478. 
 
 V. State, 6, 7, 289, 290, 292. 
 
 „. Walbridge, 90, 94. 
 
 V. Walker, 354. 
 Williamson v. Carroll, 889. 
 
 V. Haycock, 105. 
 
 Williamson v. Morton, 270, 278. 
 
 V. State, 261. 
 Willingford v. Fiske, 283. 
 Willingham v. Smith, 169. 
 Willings V. Consequa, 144, 500. 
 WiUink V. Eeckle, 530. 
 Willis V. Quimby, 398. 
 
 V. State, 448. 
 
 ,.. Underbill, 274. 
 
 V. West, 63. 
 Wills V. Judd, 137, 143. 
 
 c: Word, 183. 
 Wilmarth v. Mountford, 145. 
 Wilson V. Alexander, 102. 
 
 </. Allen, 36. 
 
 V. Bauman, 489, 503. 
 
 V. Beauchamp, 510. 
 
 V. Carson, 500. 
 
 .,. Clark, 105. 
 
 1/. County of York, 531. 
 
 V. Douglas, 83. 
 
 V. Hanson, 129. 
 
 „. Kirkland, 506. 
 
 V. Knox, 531. 
 
 V. McCuUough, 398. 
 
 V. People, 497. 
 
 V. Reynolds, 219. 
 
 V. Sheppard, 270. 
 
 -. Smith, 106, 500. 
 
 V. Speed, 62. 
 
 V. State, 334, 476, 517. 
 
 V. Unselt, 185. 
 
 V. Wagar, 408, 413. 
 
 v. Walker, 97, 154. 
 
 V. Webber, 192. 
 
 V. Wilson, 181. 
 Winans v. New York &c. E. E. Co., 
 
 504. 
 Winant v. Winant, 78. 
 Winchell v. Latham, 418. 
 Winder v. Diffenderfer, 350, 440, 523, 
 
 526. 
 Wing V. Andrews, 116. 
 
 V. Goodman, 272. 
 Winier v. Brett, 352. 
 Winkler v. Scudder, 90. 
 Winn V. Cole, 54. 
 Winship v. Enfield, 285. 
 Winsor v. Clark, 446. 
 Winston v. Moseley, 355. 
 Winter v. Stock, 478. 
 Winthrop v. Meyer, 212. 
 Winton v. Meeker, 345. 
 
 ./. Saidler, 87. 
 Wisconsin Bank v. Morley, 244. 
 Wise V. Lamb, 100. 
 
Ixxxvi 
 
 TABLE or CASES. 
 
 Wise V. Patterson, 137. 
 
 u. Phoenix Ins. Co., 460. 
 u. Tripp, 74. 
 Wiseman v. Cornish, 102. 
 
 V. Wiseman, 284. 
 Wisner v. Brady, 69. 
 Witthaus V. Schacl;:, 219, 283. 
 Withee v. Eowe, 506. 
 Witlierspoon v. Blewlett, 197. 
 Wixson V. People, 275, 312. 
 Woburn V. Henshaw, 448. 
 Wogan V. Small, 486. 
 Wohlfahi-t ;;. Beckert, 310. 
 Wolf f. Batchelder, 55. 
 
 u. Church, 45. 
 
 V. Finlis, 91. 
 Wolfborough v. Alton, 470. 
 Wolfe V. Goulard, 442. 
 
 ^. Harver, 346, 355. 
 Womack v. McQuarry, 285. 
 Wood V. Bibhins, 276. 
 
 V. Broadley, 276. 
 
 V. Broillar, 282. 
 
 V. Chicago &c. R. E. Co., 475. 
 
 V. Connell, 107. 
 
 V. Gannett, 192. 
 
 V. Kelly, 45. 
 
 V. Mackinson, 407. 
 
 V. MeGuire, 169, 419. 
 
 V. Shurtlefe, 238. 
 
 V. Stafford, 197. 
 Woodard v. Spiller, 51. 
 Woodbeck v. Keller, 373,' 374. 
 Woodberry v. Perkins, 68. 
 Woodbridge v. Austin, 500. 
 Woodburn v. Farmers' &c. Bank, 478. 
 Woodbury v. Northy, 50. 
 
 u. Obear, 494. 
 
 u. Woodbury, 237. 
 Woodcock V. Bennett, 320. 
 Woodgate v. Potts, 270. 
 Woodhouse i\ Simmons, 223. 
 WoodhuU ;;. Holmes, 88. 
 Woodin V. People, 473, 498. 
 Woodman v. Churchill, 23, 333. 
 
 u. Dana, 506, 510. 
 
 c. Eastman, 89. 
 
 V. Skeetup, 87. 
 Woodruff V. Cox, 61. 
 
 V. Dood, 187. 
 
 u. Imperial Fire Ins. Co., 481, 
 503. 
 
 V. Smith, 90. 
 Woods V. Allen, 504. 
 
 v: De Figaniere, 517, 518, 527. 
 
 V. McPheran, 392. 
 
 Woods V. Miller, 459. 
 i>. Williams, 142. 
 Woodward, Me, 516. 
 V. Gates, 480. 
 ,,. Purdy, 516. 
 V. State, 27. 
 Wooley V. Turner, 282. 
 Woolf V. St. Louis, 127. 
 Woolfolk V. McDowell, 61. 
 Wooten V. Nail, 36. 
 Worcester v. Eaton, 51, 99. 
 Work V. Kase, 98. 
 Workman v. State, 289. 
 Wormeley v. Commonwealth, 340. 
 Wormley v. Hamburg, 179. 
 Worrall v. Jones, 30, 31, 38. 
 Worthington v. Scribner, 456, 457. 
 Wosland v. Outten, 532. 
 Wottrich V. Freeman, 286. 
 Wrape v. Hampson,'177. 
 Wright V. Abbott, 186. 
 
 V. Beckett, 353. 
 
 V. Bessman, 168. 
 
 V. Bonta, 1.33. 
 
 t'. Boyiiton, 106. 
 
 , . Caldwell, 33. 
 
 o. Carillo, 33. 
 
 V. Deklyne, 339. 
 
 V. Fuuck, 108. 
 
 V. Gilbert, 191. 
 
 V. Hardy, 493, 495, 498. 
 
 V. Lawson, 169. 
 
 V. Lewis, 52, 91. 
 
 V. New York &c. K. E. Co., 207. 
 
 V. Nichols, 50. 
 
 V. People, 533. 
 
 V. Rogers, 67, 121, 294. 
 
 ... Ross, 66. 
 
 V. State, 9, 314, 375, 377. 
 
 V. Truefitt, 98. 
 
 V. Williams, 491. 
 
 V. Wright, 41. 
 Wyckoff V. Wyckoff, 79. 
 Wyman v. Gould, 393. 
 
 u. Lexington &c. R. E. Co., 480. 
 Wyngert v. Norton, 393. 
 Wynn v. Williams, 139. 
 Wyoming v. American Powder Co., 
 
 127. 
 Wyoming County v. Bardwell, 378. 
 
 Yarborough v. Hood, 154. 
 
 u. Scott, 56. 
 
 V. State, 21. 
 Yates v. Yates, 491, 507, 510. 
 
TABLE OF CASES. 
 
 Ixxxvii 
 
 Yeager v. Weaver, 272. 
 
 Yonge V. Mobile &c. K. R. Co., 154. 
 
 Yongue v. Aiken, 70. 
 
 York &c. R. R. Co. v. Pratt, 126. 
 
 Yorlis V. Peolc, 51C. 
 
 Young V. Bennett, 407. 
 
 V. Catlett, 461. 
 
 V. Crougliton, 199. 
 
 u. Edwards, 419. 
 
 r. First Nat. Bank, 116. 
 
 V. Garland, 299. 
 
 u. Gilman, 267. 
 
 ■a. Makepeace, 498. 
 
 V. Mason, 418, 
 
 I,-. M'Lemore, 154. 
 
 ..■. O'Neal, 503. 
 
 V. Power, 478. 
 
 Young V. Reed, 105. 
 
 V. Warne, 109. 
 Youngs V. Youngs, 443. 
 Youter v. Sanno, 457. 
 Yuran v. Randolph, 125. 
 
 Z. 
 
 Zachary v. Swanger, 473. 
 Zackowski v. Jones, 183. 
 Zane v. Fink, 242, 269. 
 Zeh'B Estate, 228. 
 Zeigler v. Gray, 92. 
 
 V. Scott, 169. 
 Zerbe v. Reigart, 179. 
 Zink V. Wilson, 241. 
 Zitske V. Goldberg, 454. 
 ZollicofEer v. Turney, 424. 
 
Paet I. 
 COMPETENCY. 
 
THE LAW OF WITNESSES. 
 
 PART L — COMPETENCY. 
 
 CHAPTER I. 
 
 OF MENTAL DISQUALIFICATIONS. 
 
 § 1. Preliminary Observations. 
 
 § 2. Insufficient Understanding. 
 
 § 3. Idiots. 
 
 § 4. Insane Persons. 
 
 § 5. Intoxicated Persons. 
 
 § 6. Deaf -Mutes. 
 
 § 7. Cliildren : Age as affecting Competency. 
 
 § 8. The Requisite Religious Instruction. 
 
 § 9. Competency of Witness as dependent upon Means of Knowledge. 
 
 § 10. Effect of Imperfect Recollection. 
 
 § 1. Preliminary Observations. -=- A witness is a means or 
 instrument of evidence, i.e. of unwritten or oral evidence ; his 
 function is to inform the tribunal or officer before whom lie 
 testifies as to matters of fact. Obviously, in order to the 
 proper exercise of this important function, the proposed 
 witness must possess certain qualifications, or, to speak more 
 accurately, he must not labor under certain disqualifications, 
 to be presentlj' considered, or he will be rejected by the 
 court or magistrate as an incompetent witness, and his testi- 
 mony excluded. The chief reason for the exclusion of the 
 testimony of such a v/itness is, that it would, if admitted, 
 tend to mislead the jury ; and it is clear that the propriety 
 of the exclusion in each particular case must largely depend 
 upon the constitution of the tribunal to which the evidence 
 is submitted, and the mode of proceeding before it. Then, 
 too, the difference which exists between judicial investiga- 
 tions and the ordinary transactions of life, must be con- 
 
2 COMPETENCY. [CHAP. I. 
 
 sidered more especially with regard to the space of time 
 allowed for decision, the temptations to deceive, the facil- 
 ities of deception, and the consequences of deciding incor- 
 rectly.i 
 
 At common law the disqualiiication^ which rendered a 
 witness incompetent to give any evidence at all were : (1) 
 Insufficient undei'standing; (2) Refusal to be sworn or to 
 acknowledge the sanction of an oath ; (3) Infamy arising 
 from conviction of crime ; (4) The position of the proposed 
 witness as a party to the controversy under investigation ; 
 and (5) His being interested in the event of the matter in 
 issue to any extent, no matter how trifling.^ 
 
 Let us now examine these common law disqualifications in 
 the order above given, noting as we proceed tlie statutory 
 changes which both in England and America have entirely 
 swept away some of them, and greatly circumscribed the 
 former almost universal applicability of those of them which 
 still may be said to have the force of rules of law. 
 
 § 2. InsufScient Understanding. — The disqualification first 
 mentioned in the preceding section is that of mental defi- 
 ciency. This defect, whatever may have been its cause ; 
 whether it be temporary or permanent, curable or incurable ; 
 whether it be due to the tender years of the witness, or to 
 some disease, intemperate habits, loss of memory, or any 
 other cause, is absolutely fatal to the competency of the 
 witness so long as it exists : on its removal, however, the 
 witness' competency is restored. Persons laboring under 
 this kind of disqualification are. Idiots, Insane persons, In- 
 toxicated persons. Deaf-mutes, and children. Each of these 
 classes will be considered in turn. 
 
 § 3. Idiots. — An idiot is defined to be one who from his 
 nativity is by a perpetual infirmity non compos mentis.^ His 
 infirmity is incurable, and he can under no circumstances 
 become a competent witness. In his case, as in that of an 
 insane person, the great safeguard provided by the law in 
 
 1 1 Phill. Ev. (4 Am. ed.) 7 ; 1 Greenl. room, is grounded upon principles of 
 Ev. § 320. public policy, and is, in the present 
 
 2 Some writers name a sixth class, in writer's opinion, rather an inhibition 
 which they include grand and petit upon the disclosure of certain facts 
 jurors, whose incompetency to testify than a disqualification of the witness 
 as to matters upon which they have to testify at all. 
 
 deliberated in the secrecy of the jury- ^ Co. Litt. 247, a. 
 
§ 4.J TMEXTAL DISQUALrFICATIONS. 3 
 
 order to secure the truth of oral evidence, viz. that it be 
 delivered under the sanction of an oath, is v^anting ; for not 
 being capable of comprehending either the nature and obli- 
 gation of an oath, or the temporal or spiritual consequences 
 of its violation, its administration to him would be an idle 
 ceremony.! 
 
 Lord Hale classes persons born deaf and dumb as idiots ; ^ 
 but such a position would hardly be accepted at this day, 
 although later authorities in England maintain that one who 
 is born deaf, dumb, and blind, must be regarded as in the 
 same state as an idiot, being supposed incapable of any 
 understanding, as wanting all those senses which furnish tlie 
 human mind with ideas.^ However this may be, the fact 
 that the proposed witness is an idiot must be proved by 
 other testimony, and not by a preliminary examination of 
 the witness ; and even if the court have any discretion by 
 which they may permit such preliminary examination, still 
 it is not error for them to refuse to allow it."* 
 
 § 4. Insane Persons.- — A madman, or person permanently 
 deranged, is as fully disqualified as an idiot, and for the same 
 reason ; ^ and proof of incompeteriCy for such cause is admis- 
 sible.® But if the witness, though insane, be capable of 
 understanding the obligation of the oath and of giving a 
 correct account of things seen or lieard in connection with 
 the issue, he is competent.'^ Thus a lunatic is competent 
 during a lucid interval.^ The question is whether the 
 witness is insane at the time he is offered as a witness, and 
 this question is a preliminary one to be decided by the 
 court.^ 
 
 A respectable text-writer observes that the witness, to be 
 competent, must have been in possession of his intellect at 
 the time of the event to which he testifies, as well as at the 
 
 1 See Gebhard v. Shindle, 15 S. & R. * Com. Dig. tit. Testmoigne, A. 1 ; 
 (Pa.) 235 ; Phebe v. Prince, Walk. Livingston v. Kiersted, 10 Jolins. 
 Rep. 131 ; Kilburn v. Mullen, 22 Iowa, (N. Y.) 362. 
 
 498 ; Fuller v. Puller, 17 Cal. 605 ; ^ Livingston v. Kiersted, supra. 
 
 Coleman v. Commonwealth, 25 Gratt. ' District of Columbia v. Armes, 
 
 (Va.) 865. 107 U. S. 519. S. P. Coleman v. Com- 
 
 2 1 Hale, P. C. 34. monwealth, 25 Gratt. (Va.) 865. 
 
 s 1 Bl. Com. 304 ; 2 Stepli. Com. 530. 8 Evans v. Hettich, 7 Wheat. (U. S.) 
 
 See infra, §6; Reg. v. Guttridge, 9 453, 470 ; Campbell y. State, 23 Ala. 44. 
 
 Carr. & P. 471 ; Reg. !■. Megson, Id. » Rex o. Hill, 20 Law J. 222, m ; 
 
 428. , Holcomb v. Holcomb, 28 Conn. 177; 
 
 * Robinson v. Dana, 16 Vt. 474. Cannady v. Lynch, 27 Minn. 435. 
 
4 COMPETENCY. [CHAP. I. 
 
 time of his examination ; and that it ought to appear that 
 no serious fit of insanity lias intervened, so as to cloud his 
 recollection, and cause him to mistake the illusions of imagi- 
 nation for the events he has witnessed.^ But the Supreme 
 Court of Connecticut has held that the question whether a 
 witness, sane at the time he testifies, was insane at the time 
 of the transaction with regard to which he testifies, goes 
 only to the credibility of his testimony and not to his com- 
 petency, and is therefore a suhject for evidence to the jury, 
 to be adduced by the opposing party with his other evi- 
 dence; and to be proved in the same manner as insanity in 
 any other case.^ And other respectable decisions hold that 
 one who has been adjudged restored to sanity may testify as 
 to facts that occurred while he was under guardianship gs 
 insane.^ 
 
 The burden of proof as to restoration to sanity rests upon 
 the party offering the witness. Thus an inquisition of lunacy 
 found against one is prima facie evidence of his incom- 
 petency, and unless it be overcome by evidence of his sanitj'-, 
 he should not be permitted to testify, even as against one not 
 a party to the proceedings in lunacj'.* But the fact of 
 insanity luust, in the first instance, be proved by the party 
 objecting to the witness.^ 
 
 As respects the competency of persons afflicted with mono- 
 mania., i.e. unsoundness of mind upon one particular subject 
 (not a part of the matter in issue), Mr. Roscoe advises the ex- 
 clusion of their testimony,^ and the Privy Council of England 
 have said tliat if the mind is unsound on one subject, and 
 this unsoundness at all times exists upon that subject, the 
 mind of such a person cannot properly be considered really 
 sound upon other subjects.'^ 
 
 § 5. Intoxicated Persons. — Much of what has been already 
 said applies to this class of incompetent witnesses, with the 
 single qualification that while in the case of idiocy, or 
 
 1 Allison (Scotch), Pr. 436. 6 Rose. Cr. Ev. p. 128. Mr. Best, 
 
 ^ Holcomb y. Holcomb, s»p™. however, calls this "hard measure." 
 
 3 Sarbach v. Jones, 20 Kan. 497. Best, Princ. Ev. p. 168. 
 
 Compare Endel v. "Walls, 16 Pla. 786. ^ Waring v. "Waring, 12 Jur. 947, a 
 
 ^ Hoyt V. Adee, 3 Lans. (N. Y.) 173. case where a will was set aside on the 
 
 f-i. P. Armstrong i'. Tiramons, 3 Harr. ground of mental incapacity in the 
 
 (Del.) 342. testator caused by monomania. In 
 
 '' State V. HoUoway, 8 Blackf. (Ind.) another case (a trial for manslaugh- 
 
 45. ter), the witness' delusion, bt)th at the 
 
§ 6.] MENTAL DISQUALIFICATIONS. 5 
 
 insanity, the party objecting to the witness must prove his 
 incapacity, and may call witnesses for that purpose, y-et in 
 the case of a person called as a witness while in a state of 
 intoxication, the court may decide from its own view, 
 whether the witness is in' such a situation that he ought not 
 to be permitted to testify. i If competent at the time his 
 evidence is offered, it is no objection to his admission that he 
 has been found to be an habitual drunkard, and his estate 
 committed to trustees ; ^ nor can his intemperate habits be 
 proved to impeach his competency.^ 
 
 § 6. Deaf-Mutes. — Where a person deaf and dumb from birtli 
 is offered as a witness, the burden of proving liis possession of 
 sufficient understanding to become a competent witness rests 
 on the party offering him. This results from the ancient 
 presumption laid down by Lord Hale, that persons so situ- 
 ated are to be deemed the same as idiots.* In view, how- 
 ever, of the fact that modern science has discovered a way of 
 educating these unfortunate persons, who have been found 
 to be of much greater intelligence than was anciently sup- 
 posed, less evidence is now required than formerly to rebut 
 this presumption, if, iudeed, it thkj still be deemed to have 
 an 3^ force. Sufficient understanding being shown, a deaf- 
 mute may be sworn and give his testimony through an inter- 
 preter.^ Such a witness is competent, in Indiana, if he has 
 sufficient discretion, and understands that perjury is punish- 
 able by law, though he has no conception of the religious 
 
 time of the transaction and of the ^ p^. Act, Feb. 25, 1819 ; Gcbhard v. 
 
 trial, was that he was possessed of Shindic, 15 S. & R. (I'a.) 235, 238. 
 
 twenty tliousand spirits. He appeared ^ fhayer i-. Boyle, 30 Me. 475. In 
 
 to understand the obligation of an a late case in Washington Territory, 
 
 oath, and to believe in future rewards it is held that the exclusion of an in- 
 
 and punishments, and a physician tes- toxicated witness from the court-room, 
 
 tifled that in his opinion the witness and the refusal of the court to permit 
 
 could give an account of any transac- him to testify, is not error; but it 
 
 tion that happened before his eyes, might constitute a ground for a new 
 
 His testimony was admitted, the court trial if the party offering the witness 
 
 holding that in the case of such a informed the court of the importance 
 
 delusion, it was for the court to decide of his testimony, and asked an ad- 
 
 upon the competency of the witness, journment of the trial until he became 
 
 andfor the jury to pass upon his cred- competent to testify, and the court 
 
 ibility. Reg. v. Hill, 15 Jur. 470 ; 5 Eng. refused the request. Fox v. Territory, 
 
 L. & Eq. 547 ; 5 Cox. Cr. Cas. 259. 5 West Coast Rep., 339. 
 
 1 Hartford v. Palmer, 16 Johns. * See supra, § 3. 
 
 (N.y.)143. Compare Gould f. Craw- ^ Rugton's Case, 1 Leach, C. C. 408; 
 
 ford, 2 Pa. St. 89 ; Cannady v. Lynch, 1 Russ. Cr. p. 7. 
 27 Minn. 435- 
 
6 
 
 COMPETENCY. 
 
 [chap. I. 
 
 obligation of an oath.^ If he can write sufficiently well to 
 communicate ideas perfectly in that way, he will be required 
 to give his testimony in writing ;2 but he may resort to signs, 
 though it appears that he can read and write, and communi- 
 cate ideas, imperfectly, by writing.^ " 
 
 § 7. Children : Age as affecting Competency. — The law 
 fixes no precise age within which children are absolutely 
 excluded as witnesses. Their competency depends upon 
 their intelligence, judgment, understanding, and ability to 
 comprehend the nature and effect of an oath.* If over the 
 age of fourteen, the law presumes the witness to possess com- 
 mon discretion and understanding, and he will not be inter- 
 rogated respecting his capacity, unless some reason creating 
 suspicion be shown ;^ but if he be under that age, no such 
 presumption exists, and the court will determine, in the 
 exercise of a sound discretion, whether the witness has the 
 reqviisite capacity and intelligence ; ^ and that discretion is 
 not reviewable in an appellate court, except upon a clear 
 showing of its abuse." 
 
 ' Snyder v. Nations, 5 Blackf. (Ind.) 
 295. 
 
 2 Morrison v. Lennard, 3 Car. & P. 
 127. 
 
 8 State V. De Wolf, 8 Conn. 9.3; 
 Commonwealth v. Hill, 14 Mass. 207 ; 
 Snyder v. Nations, supra. As to the 
 admissibility of the declarations (com- 
 municated hy signs) of a deaf and 
 dumb female upon whom a rape is 
 .Tlleged to have been committed, to 
 prove the commission of the offence, 
 or describe the guilty person, see 
 People V. McGee, 1 Den. (N. Y.) 19, 
 24; Eeg. v. Guttridge, 9 Car. & P. 
 471 ; Reg. u. Megson, Id. 428. 
 
 *Planagan o. State, 25 Ark. 92;' 
 Warner !-. State, Id. 447 ; People r. 
 Bcrnal, 10 Cal. 66 ; State v. Denis, 19 
 La. Ann. 119; State o. Whittier, 21 
 Me. 341 ; Brown v. State, 2 Tex. App. 
 115; State v. Richie, 28 La. Ann. 327; 
 
 At one time the English rule was 
 that no child under nine, and very 
 few under ten years of age should be 
 admitted, Rex v. Travers, 2 Str. 700. 
 See also 1 East, P. C. 442 ; 1 Hale, P. 
 C. 302 ; 2 Id. 278 ; but this rule was 
 found to be unwise, in some instances 
 
 depriving children of the protection 
 of the law against acts of violence. 
 In Brazier's Case (which was an in- 
 dictment for an indecent assault upon 
 a girl of five years), the English 
 judges unanimously adopted the rule 
 stated in the text (which has ever 
 since been followed), but insisted upon 
 the administration of an oath in every 
 case. 1 Leach, C. C. 199 ; 1 East, P. C. 
 443 ; B. N. P. 293. See also E. v. Per- 
 kin, 2 Moo. C. C. 139. 
 
 s Den V. Vancleve, 2 South. (N. J.) 
 589. In Indiana, the age of ten is 
 the statute period of presumption, 
 Blackwell v. State, 11 Ind. 196; 
 Holmes v. State, 88 Ind. 145. 
 
 c State V. Richie, 28 La. Ann. 327 ; 
 Anonymous, 2 Penn. (N. J.) 930 ; Van 
 Pelt V. Van Pelt, Id. 657 ; Jackson v. 
 Gridlcy, 18 Johns. (N. Y.) 98. 
 
 '' Peterson v. State, 47 Ga. 524 ; 
 State u. Denis, 19 La. Ann. 119; 
 State V. Jackson, 9 Oreg. 457 ; Brown 
 V. State, Tex. App. 286; Ake v. 
 State, Id. 398; Biirk ,;. State, 8 Id. 
 336 ; Williams v. State, 12 Id. 127. 
 
 The following summary of the ad- 
 judged cases will serve to illustrate 
 
§8.] 
 
 MENTAL DISQUALIFICATIONS. 
 
 § 8. The Requisite Religious Instruction. — Thus we see 
 tliat while age standing alone (the requisite intelligence 
 being present) is by no means a criterion by which to judge 
 of the competency of children as witnesses, yet their admis- 
 sibility depends not merely upon their possessing a compe- 
 tent degree of understanding, but also, in part, upon theii- 
 having received sufficient religious instruction to enable 
 
 to what extent tlie examination as to 
 "intelligence has been carried by judges 
 in these cases, where the witness is 
 within the statutory age of presump- 
 tion : In Spears «. Snell (74 N. C. 
 210), a boy of thirteen was permitted 
 to testify and consulted as to his own 
 wishes, where the question was as to 
 his custody and guardianship. In 
 State V. Scanlon (58 Mo. 204), on a 
 trial for murder, a child of nine years 
 who, after a little delay, was able to 
 give intelligible answers, although at 
 first, from the novelty of the sur- 
 roundings, etc., she was prevented 
 therefrom by nervous agitation, was 
 admitted. In Jenner's Case (2 C. H. 
 Kec. (N. Y.) 147-149), where, though 
 nine years old, and quite intelligent, 
 the witness did not comprehend the 
 nature of an oath, nor the consequen- 
 ces of false swearing, the judge in- 
 structed her on the spot, and admitted 
 her testimony. In Davidson y. State 
 (39 Tex. 129), a child of ten who said, 
 "That she did not know what God 
 and the laws of the country would do 
 to her if she swore falsely, but that 
 she would tell the truth," was held 
 competent. In Blackwell v. State (11 
 Ind. 196), it was held that a child 
 under ten, who does not know how 
 perjury will be punished, but believes 
 it will be; who knows that it is not 
 right to swear to a lie, and says she 
 would tell the truth if sworn, and 
 always, if mother wanted her to, and 
 that her mother had told her to in this 
 case, may be presumed to have been 
 competent, the court below having 
 admitted her. See also Common- 
 wealth V. Hutchenson, 10 Mass. 225. 
 In Commonwealth v. Carey (2 Brews. 
 (Pa.) 404), a child of eight was sworn 
 although she had stated that she did 
 
 not know how to read, or what the 
 Bible was, — she having replied that 
 she must tell the truth when on the 
 stand, and if not, she would " Go to 
 the big fires of hell." See also Wade 
 V. State, 50 Ala. 104. So it has been 
 held that on a criminal trial a child of 
 seven may testify, Washburn v. Peo- 
 ple, 10 Mich. .372 , State v. Morea, 2 
 Ala. 275, and if corroborated by cir- 
 cumstances, his testimony is sufficient 
 to justify a conviction of a capital 
 crime, although that testimony is con- 
 tradicted by the evidence of an adult; 
 the credibility of the witnesses being 
 left to the jury. State v. Le Blanc, 1 
 Treadw. (S. C.) Const. 354 ; State v. Le 
 Blanc, 3 Brev. (S. C.) 339, And the 
 fact that such a child is not punisha- 
 ble for perjury makes no difference. 
 Johnson v. State, 01 Ga. 35. See also 
 State V. Eichie, 28 La. Ann. 327 ; Mc- 
 Guire v. People, 44 Mich. 280. 
 
 On the other hand, it is held that a 
 child nine years old, whose examina- 
 tion shows an utter want of anything 
 like a knowledge of the nature or 
 character and consequences of an 
 oath, is not a competent witness. 
 Williams v. State, 12 Tex. App. 127. 
 So held where she said on her exami- 
 nation that she did not know what the 
 Bible was ; that she had been to 
 church but once ; that she had heard 
 of God, but did not know who he 
 was , and, that if she swore to a lie, 
 she would be put in jail, but did not 
 know whether she would be punished 
 in any other way. Carter v. State, 63 
 Ala. 52 ; s. c. 35 Am. Eep. 4. Where 
 the witness is a mere infant (four 
 years old), he cannot have that idea of 
 a future state which will make him a 
 competent witness. Rex u. Pike, 3 
 Car. & P. 508. 
 
COMPETENCY. 
 
 [chap; I. 
 
 them to comprehend the nature of an oath and the conse- 
 quences of perjury.! T|-ig examination as to this matter 
 should be made by the court ^ without the interference of 
 counsel further than the judge may choose to allow,^ and the 
 court, in a proper case, may explain the matter and instruct 
 the child, and then determine whether or not he shall be 
 sworn and permitted to testify.* Some of the English 
 judges have even gone so far as to postpone the trial, where 
 the child was the principal witness, in order to afford an 
 opportunity to impart tlie necessary instruction upon this 
 subject;^ but this practice is not favored in England, and so 
 far as the writer knows, has not been adopted in this 
 country.^ 
 
 § 9. Competency of Witness as Dependent upon Means of 
 Knowledge. — A witness otherwise competent should not be 
 rejected because it seems to the court that lie has had but 
 little opportunity to acquire knowledge of the facts as to 
 which he is called upon to testify. The rule is that as 
 between living witnesses, one is not to be excluded because 
 another had a better opportunity of knowing a fact deposed 
 
 ' Carter v State, 63 Ala. 52 ; s. c. 
 35 Am. Eep. 4; 1 So. L. Jour. & E. 
 796 ; 2 V^^eek. Jur. 559. 
 
 2 People V. McNair, 21 Wend. 
 (N. Y.) 608. 
 
 ^ Carter i'. State, supra. 
 
 ^ Ibid. A child produced as a witness, 
 who understands that he is brought 
 to court to tell the truth, that it is 
 wrongful to tell a lie, and that he will 
 he punished if he tells a lie, has suffi- 
 cient understanding of the obligation 
 of an oath to be competent. State v. 
 Levy, 23 Minn. 104. So lield of a 
 girl nine years old, who tcstiiied on 
 her voir dire that she understood the 
 nature of an oath, and that if she did 
 not swear the truth, she would get 
 into hell-fire. Draper v. Draper, 68 
 111. 17; and of another, who, on being 
 asked what would become of her if 
 she swore to a lie, answered, " I shall 
 go to the bad world." Vincent v. 
 State, 3 Heisk. (Tenn.) 120. So held 
 also wliere the answer was, " The bad 
 man will get me." Longston v. State, 
 3 Heisk. (Tenn.) 414. 
 
 In a comparatively recent English 
 case, a child of eight was called, who, 
 up to the time of the event to which 
 she was to testify, had received no 
 religious teaching, and had never even 
 heard of a God. During a period of 
 about sixteen weeks before the trial 
 she had been, on two occasions, visited 
 and instructed by a clergyman as to 
 the nature and obligation of an oath, 
 but at the trial, still seemed to have 
 no real understanding on the subject 
 of religion or a future state. Her 
 testimony was rejected, Pattcson, J., 
 saying he must be satisfied slie felt 
 the binding obligation of an oath 
 from the general course of her relig- 
 ious education, and not merely from 
 instructions recently communicated 
 for the purposes of the trial. Hex c. 
 Williams, 7 Car. & P. 320. 
 
 6 Rex V. White, 2 Leach, C. C. 430 
 n. (a) ; Eex v. AVade, 1 Moo. C. C. 86. 
 
 " See Eex v. Williams, 7 Car. & P. 
 320; Eeg. v. Nicholas, 2 Car. & K. 
 246; Powell, Ev. 19; Eex v. Pike, 3 
 Car. & P. 598. 
 
§ 10.] ME>TTAL DISQUALIFICATIONS. 9 
 
 to.^ Thus, one who has heard certain statements, in them- 
 selves competent evidence, on which a party to a suit claims 
 to have acted, is a competent witness thereto, although the 
 speaker himself might have been summoned;^ and instructions 
 to an agent may be proved by one standing by at the time, 
 as well as by the agent.^ 
 
 Again, where A communicated to B a statement made to 
 him by C, and cannot recollect its substance, C is a compe- 
 tent witness to prove it;* and one who overheard all but a 
 small portion of a conversation may testify as to what was 
 said.^ So, also, it is no objection to the testimony of a wit- 
 ness who deposes to general reputation of pedigree, that he 
 is not one of the family or intimately acquainted with it;^ 
 and persons are competent to prove the generail correctness 
 of plaintiff's day-book, who have settled their accounts by 
 his ledger, which was posted from the day-book.' But a wit- 
 ness called to testify respecting a custom of trade who 
 showed that his knowledge of it was not later than a year 
 before the time 'of the trial, was held incompetent to prove 
 what the custom was.^ 
 
 §10. Effect of Imperfect Recollection. — The fact that a 
 witness who is called to testify to tlie declarations of another 
 cannot state the precise time or place, or the names of the 
 persons present, goes only to his credibility, and not to the 
 admissibility of his testimony ; ^ and the fact that he cannot 
 remember all that was said will not exclude his testimony of 
 what he does remember ;^<' it is sufficient if he is able to give 
 the substance of what was said. ^^ But a witness who merely 
 thinks he could give the substance, perhaps, of a lost docu- 
 ment, is not competent to prove its contents.^^ 
 
 In Fulton v. Maccracken,!^ the Avitness, on cross-examina- 
 
 1 Gorernor u. Eoberts, 2 Hawks App. Dec. 324. Compare Smith v. 
 (N. C.) 26. Smith, 1 Thomp. & 0. (N. Y.) 63. 
 
 2 Badger v. Story, 16 N. H. 168. s Hale v. Gibbs, 43 Iowa, 380. 
 sPeatherman v. Miller, 45 Pa. St. " Walker;;. Blassingame, 17 Ala. 810. 
 
 96. i» Pond V. State, 55 Ala. 196; Wright 
 
 * Green v. Cawthorn, 4 Dev. (N. C.) v. State, 35 Ark. 639. 
 
 L. 409. S. P. Curry v. Robinson, 11 " Burson < . Huntington, 21 Mich. 
 
 Ala. 266. 145. Compare Black v. Woodrow, 39 
 
 « Davis u. Smith, 75 N. C. 115; Md. 194; State v. Hughes, 29 La. 
 
 Commonwealth v. Farley, Thach. Ann. 514. 
 
 (M.ass.) Cr. 654. 12 Graham v. Chrystal, 2 Abb.fN". Y.) 
 
 6 Banert v. Day, 3 Wash. 243. App. Dec. 263. 
 
 ' Stroud V. Tilton, 4 Abb. (N, Y.) is 18 Md. 528. 
 
10 COMPETENCY. [CHAP. I. 
 
 tion as to wliether he liad mailed certain notices, answered, 
 " tliat he had no doubt lie mailed them, but could not say he 
 precisely remembered the distinct fact." It was held that 
 this was competent evidence to go to the jury, and that the 
 degree of its reliability was a question for their consideration. 
 So, also, it has been decided that the testimony of a wit- 
 ness who declares himself unable to answer questions put to 
 him on cross-exaiuination, on the ground that his memory at 
 limes fails him in consequence 'of mental injury resulting 
 from sunstroke, and that such is his present condition, is not 
 to be stricken out by the presiding judge, but may be sub- 
 mitted to the jury.i 
 
 But the testimony of a person eighty years of age was 
 held insufficient, upon an issue in chancery as to the fairness 
 of a conveyance, his memorj' being too impaired to recollect 
 whether he made alleged payments, amounting to fl,300, in 
 1861, 1862, 1863, 1864, or 1865, or whether he got any of the 
 money from the grantor, his sou-iu-law. ^ 
 
 ^ Lewis !;. Eagle Ins. Co., 10 Gray ^ McCutchen v. Pic[ue, 4 Heisk. 
 (Mass.) 508. (Tenn.) 565. 
 
CHAPTER II. 
 
 OF MOEAL DISQUALIFICATIONS. 
 
 § 11. Defect of Eeligious Belief. 
 
 § 12. Ascertaining Competency with Eefcrence to Eeligious Belief. 
 
 § 13. Statutory Abolition of Incompetency upon this Ground. 
 
 § 14. Common Law Eule as to Infamous Persons. 
 
 § 15. What constitutes Infamy. 
 
 § 16. How Infamy may be proved. 
 
 § 17. Effect of Foreign Judgment of Conviction. 
 
 § 18. Effect of Conviction of Minor Offence. 
 
 § 19. Eemoval of Incompetency by Pardon, Eeversal of Judgment, or 
 
 • Expiration of Sentence. 
 
 § 20. Abolition of the Disability by Statute. 
 § 21. Accomplices. 
 
 § 11. Defect of Reiisy)us Belief. — It being a rule of uni- 
 versal application that on all trials, civil or criminal, oral 
 evidence must be given under the sanction of an oath (ex- 
 cept in cases where, by statute, the substitution of a solemn 
 affirmation is permitted), it naturally follows that one who, 
 from defect of religious sentiment, is insensible to the obli- 
 gation of an oath, ought not to be permitted, even if willing, 
 to blasphemously invoke the name of a Supreme Being, in 
 whose existence as " the rewarder of truth and avenger of 
 falsehood," ^ he does not believe. 
 
 1 Per Lord Hardwicke, 1 Atk. 48. same reason, but without blame. The 
 "The law is wise in requiring the atheist is also rejected, because he, 
 highest attainable sanction for the too, is incapable of realizing the obli- 
 truth of testimony given ; and is con- gation of an oath, in consequence of 
 sistent in rejecting all witnesses in- his unbelief. The law looks only to 
 capable of feeling this sanction, or of the fact of incapacity, not to the 
 receiving this test ; whether this inca- cause, or the manner of avowal, 
 pacity arises from the imbecility of Whether it be calmly insiuuated with 
 their understanding, or from its per- the elegance of Gibbon, or roared 
 versity. It does not impute guilt or forth in the disgusting blasphemies 
 blame to either. If the witness is of Paine, still it is atheism; and to 
 evidently intoxicated, he is not allowed require the mere formality of an oath, 
 to be sworn ; because, for the time from one who avowedly despises, or is 
 being, he is evidently incapable of incapable of feeling, its peculiar sane- 
 feeling the force and obligation of an tion, would be but a mockery of jus- 
 oath. The non compos, and the infant tice." 1 Law Reporter, pp. 346, 347. 
 of tender age, are rejected for the 
 
12 COMPETENCY. [CHAP. II. 
 
 Without such belief, one sanction, which the law I'egards 
 as material security for truth, namely, the fear of Divine 
 punishment invoked by the witness upon himself, is wanting. 
 It does not suffice that a witness believes himself bound to 
 speak the truth from a regard to character, or to the common 
 interests of society, or from a fear of the punishment whicli 
 the law inflicts upon persons guilty of perjury. Such motives 
 have indeed their influence, but they are not considered as 
 affording a sufiicient safeguard for the strict observance of 
 truth. Our law, in common with the la\v of the most civil- 
 ized countries, requires the additional security afforded by 
 the religious sanction implied by an oath, and, as a necessary 
 consequence, rejects all witnesses who are incapable of giving 
 this security .1 
 
 Accordingly, it has been held in many cases that atheists 
 i.e., persons who do not believe in the existence of a God, 
 nor in a future state of rewards and punishments, are not 
 competent witnesses.^ The test is, does the witness believe 
 in God, and that He will punish him if he swears falsely?^ 
 And tlje great Aveight of authority, in this country, now is, 
 that it is immaterial whether the witness believes God's 
 vengeance will overtake him before or after death.* 
 
 » 1 Phill. Ev. (10 ed.) 19; Com. u. Anonymous, Id. 572; Brock v. Milli- 
 
 Winnemore, 2 Brews. (Pa.) 078. gan, 10 Ohio, 121 ; Blair v. Seaver, 26 
 
 2 B. N. P. 292 ; Gilb. Ev. 129 ; 1 Pa. St. 271 ; Jones v. Harris, 1 Strobh. 
 
 Stark. Ev. 22 ; 1 Atk. 40, 45; Wake- (S. C.) 160; Bennett v. State, 1 Swan 
 
 field V. Ross, 5 Mason (U. S.) 16; (Tcnn.) 411; United States v. Ken- 
 
 Curtiss V. Strong, 4 Day (Conn.) 51 nedy, 3 McLean (U. S.) 175; Blocker 
 
 (the case of a subscribing witness to v. Burness, 2 Ala. 354. The only 
 
 a will) ; Atwood v. Welton, 7 Conn, cases found to the contrary are. Com. 
 
 66 ; Central &c. R. R. Co. r. Rocka- v. Bachelor, 4 Am. Jur. 81 ; Curtiss v. 
 
 fellow, 17 111. 541 ; Smith v. Coffin, 18 Strong, 4 Day (Conn.) 51 ; Atwood i-. 
 
 Me. 157 ; Thurston v. Whitney, 2 Cush. Welton, 7 Conn. 66 ; and Jackson r. 
 
 (Mass.) 104; Norton v. Ladd, 4 N. II. Gridlcy, 18 Johns. (N. Y.) 98. In two 
 
 444 ; Jackson o. Gridley, 18 Johns, of these, Curtis v. Strong, and Jackson 
 
 (N. Y.) 98; People v. McGarrcn, 17 u. Gridlcy, the point was not involved. 
 
 Wend. (N. Y.) 460; Scott ;■. Hooper, as, in the first case, the witness did not 
 
 14 Vt. 535 ; Arnold v. Arnold, 13 Id. believe in the obligation of an oath, 
 
 363. and in the second he was a confirmed 
 
 8 Orchimund v. Barker, Willes, 545 ; atheist, devoid of any religious princi- 
 
 Butts V. Swartwood, 2 Cow. (N. Y.) pies whatever. As to the rule in Ten- 
 
 431 ; People v. Matteson, Id, 433, 573 nessee, see State v. Doherty, 2 Tenn. 
 
 II.; Ciibbison u. McCrcary, 2 Watts iSt 80; State v. Cooper, Id. 96. See also 
 
 S. (Pa.) 262. Easterday v. Kilborn, 1 Wright (Ohio) 
 
 ' Noble r. People, 1 111. 29; Shaw v. 345, 346, where a witness said he did 
 
 Moore, 4 Jones (N. C.) L. 25 ; People not believe in the existence of a God, 
 
 V. Matteson, 2 Cow. (N. Y.) 432 n. (a) ; but added that he saw God in trees, 
 
§ 12.] MORAL DISQUALIFICATIONS. 13 
 
 If the witness believes in a Deitj-, whether the God of the 
 Christians, or of the Jews, or a Heathen idol, he will be com- 
 petent, and if not a Christian, the oath will be administered 
 to him according to the form in use in his own country, as 
 we shall see hereafter. ^ 
 
 § 12. Ascertaining Competency with Reference to Religious 
 Belief. — The law, in its charity, presumes that every one 
 offered as a witness in a court of justice, believes in the ex- 
 istence of a Supreme Being, and upon him who seeks 
 to exclude a witness, upon the ground of defect of religious 
 belief, devolves the burden of proving the witness to be an 
 unbeliever. The party adducing the witness may remain 
 passive until his antagonist offers evidence of incompetency, 
 and when this is done, he may support his witness by evidence 
 upholding the presumption.^ 
 
 The condition of the witness's religious belief at the time 
 of the trial is the question, and this is presuiped to be the com- 
 mon faith of the country, until the contrary is shown. This 
 may be done and the competency of the witness impeached by 
 proof of his declarations to others made previously to the 
 trial.3 But not, according to the weight of authority, by an 
 examination of the witness himself ;* stiJI he will be permitted 
 to explain his religious sentiments, if he desires so to do ; 
 and if he then declares that he believes in a future state of 
 existence, and in a Supreme Being who will punisli him eitlier 
 in this world or the next, for his evil deeds, the court will 
 permit him to be examined as a witness, leaving his credi- 
 
 bushes, herbage, and everything lie 2 Id. .399 ; but such evidence should 
 
 saw ; that a man would be punislied be confined to a time not long before 
 
 for falsehood by his conscience, and the trial, Brock v. Milligan, 10 Oliio, 
 
 in this life only ; that a man is bound 120 ; and it was held in Maine, that 
 
 to speak true at all times, and that an evidence that a witness had stated 
 
 oath imposes no additional obligation, "that he had lost his devotion, that 
 
 The court held these declarations he intended now to serve the devil as 
 
 equivalent to an avowal of belief in long as he had served the Lord, and 
 
 the existence of a God, and admitted that he had a pack of cards which he 
 
 the witness, Wright, J., saying, "Jle carried about in his pocket, and called 
 
 sees him in all created nature." them his Bible," was not admissible 
 
 1 Infra, § 235. to discredit the witness, not conflicting 
 
 2 Swift's Ev. 48; Donnelly v. State, with any statement of his. Halley v. 
 2 Dutch. (N. J.) 463, 601 ; Smith v: Webster, 21 Me. 461. 
 
 Coffin, 18 Me. 157. < Com. t. Smith, 2 Gray (Mass.) 
 
 ^Anderson v. Maberry, 2 Heisk. 516; Com. v. Batchelder, Thacli. 
 
 (Tenn.) 653; S. P. Bow v. Parsons, 1 (Mass.) Cr. 191. 
 Hoot (Conn.) 480 ; Beardsley v. Foot, 
 
14 
 
 COJJPETENCY. 
 
 [chap. II. 
 
 bility to the- jury .^ It lias been held to be error, to require 
 a witness, objected to for defect of religious belief, to be 
 examined on his voir dire^ when he proposes to resort to proof 
 aliunde? And, on the other hand, after the witness's incom- 
 petency (on this ground) has been established hj testimony, 
 he cannot be sworn upon the voir dire, to restore his com- 
 
 ' United States v. White, 5 Cranch, 
 C. Ct. 38. See Commonwealth v. 
 "Winnemore, 1 Brews. (Pa.) 356. 
 
 2 Odell D. Koppee, 5 Heisk. (Tenn.) 
 88 ; Com. v. Burke, 16 Gray (Mass.) 
 33. Contra, Harrel u. State, 1 Head 
 (Tenn.) 125 ; Arnd v. Amling, 53 Md. 
 192, where a witness for plaintiff was 
 objected to as incompetent on the 
 ground that he had alleged his dis- 
 belief in God and in future punish- 
 ment. He was sworn on Ids voir dire, 
 and asked by the court whether he 
 believed in God and future punish- 
 ment, and he replied that he did. The 
 court then offered the defendant the 
 opportunity to contradict him, but 
 the offer was declined, whereupon he 
 was permitted to testify. See also 
 Quinn v. Crowell, 4 Whart. (Pa.) 334; 
 K. V. Serva, 2 Car. & K. 53, 56. 
 
 " The witness himself is never ques- 
 tioned in modern practice, as to his 
 religious belief, though formerly it 
 was otherwise (1 Swift's Dig. 739; 
 5 Mason, 19 ; American Jurist, vol. 
 iv. 79, »!.). It is not allowed, even 
 after he has been sworn (The Queen's 
 Case, 2 Brod. & B. 284). Not be- 
 cause it is a question tending to dis- 
 grace him, but because it would be 
 a personal scrutiny into the state of 
 his faith and conscience, foreign to 
 the spirit of our institutions. No 
 man is obliged to avow his belief; 
 but if he voluntarily does avow it, 
 there is no reason why the avowal 
 should not be proved, like any other 
 fact. The truth and sincerity of the 
 avowal, and the continuance of the 
 belief thus avowed, are presumed, 
 and very justly too, till they are dis- 
 proved. If his opinions have been 
 subsequently changed, this change 
 will generally, if not always, be prov- 
 able in the same mode. (Atwood v. 
 AVelton, 7 Conn. 66 ; Curtis v. Strong, 
 
 4 Day (Conn.) 51; Swift's Ev. 48- 
 50; Scott v. Hooper, 14 Vt. 535; Mr. 
 Christian's note to 3 Bl. Comm. 369; 
 1 Phil. Ev. 18; Commonwealth !■. 
 Bachelor, 4 Am. Jur. 79, n.) If the 
 change of opinion is very recent, this 
 furnishes no good ground to admit 
 the witness himself to declare it ; be- 
 cause the greater inconvenience which 
 would result from thus opening a 
 door to fraud, than from adhering to 
 tlie rule requiring other evidence of 
 this fact. The old cases, in which 
 the witness himself was questioned as 
 to his belief, have on this point been 
 overruled. See Christian's note to 3 
 Bl. Comm. [369] n. (30). The law, 
 therefore, is not reduced to any absur- 
 dity in this matter. It exercises no 
 inquisitorial power; neither does it 
 resort to secondary or hearsay evi- 
 dence. If the witness is objected to, 
 it asks third persons to testify, whetli- 
 er he has declared his belief in God, 
 and in a future state of rewards and 
 punishments, &e. Of this fact, they 
 are as good witnesses as he could be, 
 and the testimony is primary and 
 direct. It should further be noticed, 
 that the question, whether a person 
 about to be sworn is an atheist or not, 
 can never be raised by any one but an 
 adverse party. No stranger or a vol- 
 unteer has a right to object. There 
 must, in every instance, be a suit be- 
 tween two or more parties, one of 
 whom offers the person in question as 
 a competent witness. The presump- 
 tion of law, that every citizen is a 
 believer in the common religion of tlie 
 country, holds good until it is dis- 
 proved ; and it would be contrary to 
 all rule to allow any one, not party to 
 the suit, to thrust in his objections to 
 the course pursued by the litigants. 
 This rule and uniform course of pro- 
 ceeding shows how much of the mor- 
 
§13.J 
 
 MOEAL DISQUALIFICATIONS. 
 
 15 
 
 petency by his own declarations.^ But stronger evidence is 
 required to exclude a witness for defect of religious belief 
 than is required to set aside a juror.^ 
 
 § 13. statutory Abolition of Incompetency upon this 
 Ground. — In many jurisdictions the objection of incompe- 
 tency from the want of belief in the existence of a God is 
 abolished by statute : this is the case in Arizona,^ California,* 
 Indiana,^ Kentucky,® Maine,^ Massachusetts,^ Michigan,^ 
 Minnesota, '° Mississippi,^^ Missouri,^^ Texas,^^ Vermont,^* Vir- 
 ginia,^^ and Wisconsin.^® 
 
 In others, the statute merely requires a belief in the exist- 
 
 bid sympathy expressed for the atheist 
 is wasted. For there is nothing to 
 prevent him from taking any oath of 
 office ; nor from swearing to a com- 
 plaint before a magistrate ; nor from 
 making oath to his answer in chan- 
 cery. In tliis last case, indeed, he 
 could not he objected to for another 
 reason; namely, that the plaintiff, in 
 his bill, requests the court to require 
 him to answer upon his oath. In all 
 these, and many other similar cases, 
 there is no person authorized to raise 
 an objection. Keithcr is the question 
 permitted to be raised .ngainst the 
 atheist, where he himself is the ad- 
 verse party, and offers his own oath, 
 in the ordinary course of proceeding. 
 If he would make affidavit, in his 
 own cause, to the absence of a wit- 
 ness, or to hold to bail, or to the 
 truth of a plea in abatement, or to 
 the loss of a paper, or to the genuine- 
 ness of his books of account, or to 
 his fears of bodily harm from one 
 against whom he requests surety of 
 the peace, or would take the poor 
 debtor's oath ; in these and the like 
 cases the uniform course is to receive 
 his oath like any other person's. The 
 law, in such cases, does not know that 
 lie is an atheist; that is, it never 
 allows the objection of infidelity to 
 be made against any man seeking his 
 own rights in a court of justice; and 
 it conclusively and absolutely pre- 
 sumes that, so far as religious belief 
 is concerned, all persons are capable 
 of an oath, of whom it requires one, 
 as the condition of its protection or 
 
 its aid; probably deeming it a less 
 evil, that the solemnity of an oath 
 should in few instances be mocked 
 by those who feel not its force and 
 meaning, than that a citizen should, 
 in any ease, be deprived of the benefit 
 and protection of the law, on the 
 ground of his religious belief. The 
 state of his faith is not inquired into, 
 where his own rights are concerned. 
 He is only prevented from being 
 made the instrument of taking away 
 those of others." 1 Law Reporter, 
 pp. 347, 348. 
 
 ' Comrflonwealthw. Wyman, Tliach. 
 (Mass.) Cr. Cas. 432; State u. Town- 
 send, 2 Harr. (Del.) 543. 
 
 2 McFadden v. Commonwealth, 23 
 Pa. St. 12. 
 
 8 Comp. L. 1877, p. 469. 
 
 * Hittell's Code, § 11,879; Fuller v. 
 Fuller, 17 Cal. 005. 
 
 6 Rev. Stat. 1881, § 505. 
 
 * Bush V. Commonwealth, 80 Ky. 244. 
 'Rev. Stat. 1871, §81. 
 
 8 Gen. Stat. ch. 131, § 12 ; Pub. Stat. 
 1882, eh. 169, § 18. 
 
 3 Rev. Stat. 1840, ch. 102, § 96 ; 
 People V. Jenness, 5 Mich. 305. 
 
 " Stat. 1878, p. 792, § 7. 
 
 " Rev. Code, 1880, § 1604. 
 
 12 Rev. Stat. 1845, ch. 180, § 21 ; 
 Londoner v. Lichtenheim, 11 Mo. App. 
 385. 
 
 " Rev. Stat. 1879, Art. 2249 ; Crim. 
 Code, Art. 736. 
 
 " Rev. Stat. 1880, § 1007. 
 
 15 Perry's Case, 3 Gratt. (Va.) 632. 
 
 18 Const. Art. 1, § 18. 
 
16 COMPETENCY. [CHAP. 11. 
 
 enc& of a Supreme Being ; ^ and in others still, the require- 
 ment is that the witness should believe in a God wlio will 
 punish false swearing? 
 
 In Georgia and Massachusetts, the decisions hold that this 
 disbelief goes only to the credibility/ of the witness.^ In 
 several other states, where the statutory provision is that 
 " all persons," or " every human being," or " every one who 
 can understand an oath," shall be competent, it would seem 
 that all disqualification by reason of defect of religious belief 
 has been swept away-* 
 
 § 14. Common-Law Rule as to Infamous Persons. — At com- 
 mon law, all persons convicted and sentenced for crimes 
 ranked infamous, are thereby rendered incompetent to testify 
 in any court of justice. "The basis of this rule is believed 
 to be, that such a person is morally too corrupt to be trusted 
 to testify ; so reckless of the distinction between truth and 
 falsehood, and insensible to the jestraining force of an oath, 
 as to render it extremely improbable tliat he will speak the 
 truth at all. Of such a person. Chief Baron Gilbert remarks, 
 that the credit of his oath is overbalanced by the stain of his 
 iniquit3^"^ This disqualification extends to all cases where 
 the declaration of the witness is to be used in a judicial 
 proceeding for the purpose of establishing or pi-oving some 
 fact; and it applies to both written and oral evidence.^ 
 Thus, the admission of a felon that he wrote a certain letter, 
 is incompetent to qualify the letter as a standard of compari- 
 son to prove handwriting;''' and so positive is the law upon 
 this subject, that a verdict will be set aside in a criminal 
 case, where such a witness is permitted to testify, over objec- 
 tion, although he only said that he knew nothing of the 
 crime, and was asleep at the time when it was charged to 
 have been committed.^ 
 
 1 Conn. Eev. Stat. 1849, tit. 1, § 140 ; Ohio Rev. Stat. 1880 (2d ed.), § 5240 ; 
 Gen. Stat. 1875, p. 440; N. Hamp. Temi. Stat. 1871, § 3807. 
 
 Key. Stat. 1842, cli. 188, § 9; Gen. ^ i Greenl. Ev. § 372; Gilb. Ev. liy 
 
 Laws, 1878, eh. 228, § 12. Lofft, p. 250 ; Sylvester v. State, 71 
 
 2 Mo. Rev. Stat. 1835, p. 410 ; 2 Ala. 17 ; Taylor v. State, 62 Ala. 164. 
 N. Y. Rev. Stat. (3d ed.) p. 505. i= People r. Robertson, 26 How. 
 
 ' Donkle v. Kohn, 44 Ga. 266 ; Hun- (N. Y.) Pr. 90 ; In re Sawyer, 2 Q. B. 
 scorn V. Hunscom, 15 Mass. 184. See 721 ; Webster v. Mann, 56 Tex. 119. 
 also Com. t-. Buzzell, 16 Pick. (Mass.) ' Long v. State, 10 Tex. App. 180. 
 153. s-State v. Mullen, 33 La. Ann. 159. 
 
 * Iowa Eev. Code, 1880, § 3636 ; But see State v. Killet, 2 Bail. (S. C.) 
 
 289, 
 
§ 15.] MORAL DISQUALIFICATIOKS. 17 
 
 But it must be borne in mind, that nothing short of a 
 judgment of conviction will render a person infamous : mere 
 immorality,^ or even guilt of the most heinous offence, con- 
 fessed or established by the verdict of a jury, but not shown 
 to have been followed by the judgment and sentence of a 
 competent tribunal, will not have that effect. Such matters, 
 however they may affect the credibility of the witness, do not 
 in any way tend to render him incompetent, as we shall 
 presently see.^ Still, this rule of the common law, like all 
 other similar regulations, is subject to some exceptions aris- 
 ing from necessity; thus, where the disqualified person is a 
 party to the controversy, he may make any affidavit neces- 
 sary for his defence, or for relief against an irregular judg- 
 ment, for otherwise he would be remediless.^ But it has 
 been held that his affidavit is not admissible in support of a 
 charge of crime.* In one case it was held that, having been 
 a subscribing witness to a sealed instrument before his con- 
 viction, his handwriting might be proved, as though he were 
 dead.^ 
 
 § 15. What constitutes Infamy. — It is probably impossible 
 to designate with precision what constitutes infamy in the 
 sense here used, or what acts will render a person infamous, 
 and consequently incompetent to become a witness. Mere 
 immorality will not.'' According to Sir William Scott, " the 
 publicum judicium must be upon an offence, implying such a 
 dereliction of moral principle as carries with it a conclusion of 
 a total disregard to the obligation of an oath."'' But what 
 are the offences which do this? what is the least criminal 
 of them? The more usiial definition is treason, felony, and 
 
 1 Smithwick i'. Evans, 24 Ga. 461 ; ^ Rex v. Gardner, supra ; AValter v. 
 
 Jones V. State, 13 Tex. 168. Kearney, 2 Str. 1148; Perez v. State, 
 
 2/n/ra, §16. See also2 Dods. 186; 10 Tex. App. 327. 
 
 Blaufus V. People, 69 N. Y. 107 ; ^ Jones v. Mason, 2 Str. 833. But 
 
 Brown r. State, 18 Ohio St. 496. in Massachusetts it is held that evi- 
 
 " Davis & Carter's Case, 2 Salk. 401; dence of the testimony of a witness 
 
 Rex 1-. Gardner, 2 Burr. 1117; Skin- in a former trial, who has since been 
 
 ner v. Perot, 1 Ashm. (Pa.) C7. Under convicted of an infamous crime, is 
 
 this exception; a party seeking to inadmissible. Le Baron v. Crombie, 
 
 recover the amount of a lost bond, 14 Mass. 234. 
 
 though he is infamous, is competent ° State v. Randolph, 24 Conn. .363 ; 
 
 to make affidavit of the truth of the Smithwick x-. Evans, 24 Ga. 461 ; 
 
 facts alleged in his bill. Ritter c-. Craft v. State, 3 Kan. 450; Jones u. 
 
 Stutts, 8 Ired. (N. C.) Eq. 240. See State, 13 Tex. 168. 
 
 also Donoiioo r. People, 50 N. Y, 208. ' 2 Dods. 186. 
 
18 COMPETENCY. [CHAP. II. 
 
 the different species of the crimen falsi ; but here we meet 
 Avith the same difficulty; for while the first of these terms is 
 easily defined, the second is not, and the offences included 
 within the third and last have never been enumerated with 
 precision. It will not do to look to the Roman law, from 
 which the term crimen falsi is borrowed, and which defines 
 it to include not only forgery., but also every other species of 
 fraud and deceit,^ because, at common law, many of the 
 offences which, under the Roman law were included within 
 the term, have never been deemed infamous in the sense 
 here used ; among these were false representations as to the 
 quality of provisions, using false weights and measures, 
 fraudulently conspiring to circulate false news, etc. Ou the 
 other hand, the common law includes within the term, several 
 offences which not only involve the charge of falsehood, but 
 tend to hamper the due administration of justice, by the 
 introduction of falsehood and fraud. Thus it is laid down 
 that infamous crimes are treason, felony, and every species 
 of the crimen falsi, such as forgery, perjury, subornation of 
 perjury, and offences affecting the public administration of 
 justice.^ But it has been held in Vermont, that an attempt 
 to procure the absence of a witness, duly subpcenaed, in a 
 criminal case, is not an infamous offence.^ 
 
 § 16. How Infamy may be proved. — As We have already 
 seen,* neither bad character nor a charge of crime, even 
 though substantiated hy the verdict of a trial jury, will 
 suffice to prove infamy. There must be a judgment of con- 
 viction pronounced by a court of competent jurisdiction ; 
 
 i SeolGroenl.EY. (14th ed.) §373, n. State, 3 Ohio St. 229; Rex i;. Davis, 5 
 
 2 Schuylliill V. Copcly, G7 Fa. St. Mod. 74. Grand larceny. Taylor v. 
 
 380 ; People v. Whipple, 9 Cow. State, 62 Ala. 164. Petit larceny, or 
 
 (N. Y.) 707. thejl. Sylvester c. State, 71 Ala. 17; 
 
 " State v. Keyes, 8 Vt. 57. Such an State v. Gardner, 1 Eoot (Conn.) 485 ; 
 
 offence is held to be merely a con- Com. i\ Keith, 8 Mete. (Mass.) 531. 
 
 tempt of court. Com. v. Feely, 2 Va. But see Pree v. State, 1 McMull. 
 
 Cas. 1 ; I-Iasliett v. State, 51 Ind. 176. (S. C.) 494 ; Pendock v. Mackinder, 
 
 But see Clancey's Case, Fortesc. 208 ; Willes, 665. See also James v. Bost- 
 
 Bushel V. Barrett, By. & M. 434. wick, 1 Wright (Ohio) 142, 143. Me- 
 
 The following have been held to be ceiving stolen goods. Com. i,'. Rogers, 
 
 infamous crimes : Burglary. Taylor 7 Mete. (Mass ) 500. As to assaults, 
 
 V. State, 62 Ala. 104 ; People v. Park, see United States v. Brockins, 3 Wash. 
 
 41 N. y. 21. Barratry. Rex r. Ford, (U. S.) 99; and as to minor offences, 
 
 2 Salk. 090. Conspiracy to defraud generally, see infra, § 18. 
 
 creditors. United States c. Porter, 2 * Supra, § 14. 
 Cranch, C. C. CO. Forgery. Poage v. 
 
§ 17.] MORAL DISQUALIFICATIONS. 19 
 
 nothing sliort of this will be received as legal and conclusive 
 evidence of guilt, so as to render the witness incompetent. ^ 
 The reason of this rule is, that a mere verdict may be set 
 aside, or a motion in arrest of judgment granted.^ The evi- 
 dence of guilt in all such cases goes only to the credibility 
 of the witness, not to his competency.^ 
 
 But while a sentence is essential, it is not the nature of 
 the punishment, but of the crime for which the sentence is 
 imposed, which renders the party infamous.'' 
 
 In proof of his infamy, the witness himself cannot be 
 questioned, provided objection be made ; but the fact must 
 be shown by the record of his conviction (or, in proper cases, 
 by an authentication of the record) ; no other proof will 
 suffice. 5 
 
 §17. Effect of Foreign Judgment of Conviction. — Upon 
 this branch of the subject the adjudged cases are not 
 harmonious ; but a careful scrutiny of them cannot fail 
 to satisfy the reader that the true rule, supported by an 
 overwhelming weight of authority is, that the record of 
 a foreign judgment of conviction (and in the term 
 "foreign" the judgments of courts of sister States are 
 included) ought not to be received in evidence on the 
 question of the comfetency of the witness, however much 
 such evidence may (as it undoubtedly will) affect the 
 
 1 United States r. Dickenson, 2 JIc- refuge instead of to the state prison. 
 Lean (U. S.) 325; People r. Whipple, The court held him incompetent on 
 9 Cow. (N. Y.) 707; Blaufus !■. People, the ground of infamy. 
 
 09 N. Y. 107. See also Dawley v. ^ United States v. Biebusch, 1 Fed. 
 
 State, 4 Ind. 128 ; State v. Valentine, Kep. 213 ; s. c, 1 McCrary, 42; People 
 
 7 Ired. (N. C.) L. 225; State v. An- <;. Ilerrick, 13 Johns. (N.Y.) 82; Hilts 
 
 derson, 5 Harr. (Del.) 493 ; People v. c. Colvin, 14 Johns. (N. Y.) 182; Coop- 
 
 Herriek, 18 Johns. (N. Y.) 82; Cush- er i-. State, 7 Tex. App. 194; Perez 
 
 man v. Loker, 2 Mass. 108; Jackson v. State, 8 Id. CIO, and again in 10 Id. 
 
 V. Osborn, 2 Wend. (N. Y.) 555; 327, where the court hold that the 
 
 Skinner v. Perot, 1 Ashm. (Pa.) 57. fact of infamy must be shown by the 
 
 2 But see Kehoe v. Com., 85 Pa. St. best evidence, or a proper foundation 
 127. laid for the introduction of second- 
 
 ^ People c. Herriek, 13 Johns, ary evidence of the fact. The cases 
 
 (N. Y.) 82; Wicks v. Smalbrook, 1 of State v. Eidgely, 2 Harr. & M. 
 
 Sid. 51; s. c, T. Raym. 32. (Md.) 120, and Clarke v. Hall, Id. 
 
 * Batholomew %■>. People, 104 111. 378, are not authority to the contrary, 
 
 001 ; People y. Whipple, 9 Cow. (N.Y.) for in these cases parol evidence was 
 
 707 ; People v. Park, 41 N. Y. 21 ; admitted merely to prove that the 
 
 affirming 1 Lans. 263, in which latter witnesses had been transported from 
 
 case an infant, convicted of burglary. Great Britain to Maryland prior to the ' 
 
 was, under the statute as to juvenile . Revolution. 
 delinquents, sentenced to the house of 
 
20 COMPETENCY. [CHAP. n. 
 
 credibility of his testimony. The disqualification is a 
 purely personal one ; it has its origin in positive law ; 
 is not founded upon natural law ; and being of a penal 
 character, must be strictl}^ construed. ^ 
 
 In a few jurisdictions, however, it has been held that 
 a foreign judgment of conviction will disqualify .^ 
 
 Whether a conviction in another State was of a crime 
 infamous or not, is to be determined by the law of the forum ; 
 the transcript of the record should therefore set out the 
 indictment, that the court may determine this point.^ 
 
 § 18. Effect of Conviction of Minor Offence. — We have 
 already seen that at common law, all crimes were not 
 deemed infamous, and that it was the infamy of the crime, 
 and not the nature or mode of punishment, that rendered 
 the person convicted incompetent as a witness.* There 
 are many offences involving both falsehood and fraud, 
 which are punished as infamous crimes are usually pun- 
 ished, and yet are not infamous crimes, and will not 
 exclude the offenders as witnesses.^ Among these minor 
 offences are: adultery;** conspiracy to cheat and defraud 
 creditors;^ dealing faro;^ embezzlement by a public officer;^ 
 
 1 Commonwealth r. Green, 17 Mass. been committed, and the conviction 
 
 515 ; National Trust Co. v. Roberts, 42 had taken place in New Hampshire. 
 
 N. Y. Superior, 100; Sims v. Sims, 75 Chase v. Blodgett, 10 N. H. 22. 
 
 N.Y, 466; reversing s. c, 12 Hun, 231; 2 gtate v. Foley, 15 Nev. 64; s. c. 
 
 National Trust Co. v. Gleason, 77 N.Y. 37 Am. Eep. 458; State v. Chandler, 
 
 400. Thus, it is held in Alabama, 3 Hawks (N. C.) 393 (one of the three 
 
 that a conviction for libel in another judges doubting). The cases of Cole 
 
 State will not disqualify, Campbell v. v. Cole, 1 Har. & J. (Md.) 572; State 
 
 State, 23 Ala. 44; nor will a foreign ... Eidgely, 2 Harr. & M. (Md.) 120; 
 
 conviction of petty larceny so operate and Clarke v. Hall, Id. 378, are not in 
 
 in Virginia, Uhl v. Commonwealth, 6 point, as in those cases the judgments 
 
 Gratt. ("Va.) 706; what effect it will of conviction were not foreign ones, 
 
 have in Louisiana, see Klein u. Dink- having been pronounced in England 
 
 grave, 4 La. Ann. 540. In New Hamp- prior to the Revolution, 
 
 shire, it is held that a conviction of a ' Kirschner v. State, 9 Wis. 140. 
 
 crime in another State is not admissible * Supra, § 16. 
 
 in evidence for the purpose of im- ^ Schuylkill v. Copeley, 67 Pa. St. 
 
 peaching the credit of a witness. But 386; United States o. Brockins, 3 
 
 a conviction in another State of a Wash. (U.S.) 99; Clarke v.- Hall, 2 
 
 crime which, by the laws of such Harr. & M. (Md.) 378. 
 
 State, disqualifies the party from being ^ Little v. Gibson, 39 N. H. 505. 
 
 heard as a witness, and which, if com- ' Bickel v. Fasig, 33 Pa. St. 463. 
 
 mittedinNew Hampshire, would have ' Holloway v. Cora., 11 Bush (Ky.) 
 
 operated as a disqualification, is suffl- 344. 
 
 liont to exclude him from testifying ' Schuylkill r. Copeley, supra. 
 there, in the same manner as if it had 
 
§19-] 
 
 MOPvAL DISQUALIFICATIONS. 
 
 21 
 
 keeping a bawdy-house ; ^ maliciously obstructing the passage 
 of cars on a railroad ; ^ obtaining goods by false pretences ; ^ 
 petit larceny;* receiving stolen goods ;^ unlawfully cutting 
 timber;^ violating a city ordinance;'^ and many others; 
 but in the case of most of them the conviction may be 
 shown for the purpose of impeaching the credibility of 
 the witness. 
 
 § 19. Removal of Inoompeteucy by Pardon, Reversal of 
 Judgment, or Expiration of Sentence. — The disability of 
 infamy may be removed : (1) by a pardon ; (2) by rever- 
 sal of the judgment; and, at least in one State,^ (3) by the 
 expiration of the sentence, the convict having suffered the 
 full punishment inflicted upon him. 
 
 While the rule is a general one, that a pardon, regularly 
 granted, completely removes the disability;^ yet where a 
 statute, in express terms, annexes the disability to the 
 conviction, a pardon will not remove it.^" Thus, a convic- 
 tion for perjury, under the statute, disqualifies, notwith- 
 standing the offender be pardoned.^^ 
 
 ' Deer v. State, 14 Mo. 348. 
 
 2 Com. V. Dame, 8 Cush. (Mass.) 
 384. 
 
 8 Utley w. Merrick, 11 Mete. (Mass.) 
 302. 
 
 * Pruit V. Miller, 3 Ind. 16 ; Car- 
 penter V. Nixon, 5 Hill (N. Y.) 260; 
 Shay V. People, 22 N. Y. 317; s. c, 4 
 Park. Cr. 353 ; "Welsh v. State, 3 Tex. 
 App. 114. Contra, Lyford o. Farrar, 
 31 N. H. 314, and cases cited in note 
 to section 15, supra. 
 
 ' Com. <.. Murphy, 3 Pa. L. J. Ecp. 
 290. 
 
 « Roller V. Pfirth, 2 Penn. (N. J.) 
 723. 
 
 ' Cheatham v. State, 59 Ala. 40. 
 
 8 "West Virginia. 
 
 United States v. Rutherford, 2 
 Cranch, C. C. 528; Yarborough v. 
 State, 41 Ala. 405; Klein v. Dink- 
 grave, 4 La. Ann. 540 ; Eaum u. 
 Clause, 5 Hill (N". Y.) 196; and even 
 though the charter of pardon incor- 
 rectly states the date of the convic- 
 tion, it is sufficient, if it be possible to 
 show that it was intended to cover, 
 and does cover, the offence of which 
 the record -shows the witness to be 
 
 guilty. Com. u. Ohio &.c. R. R. Co., 1 
 Grant (Pa.) Cas. 329. But see Evans 
 u. State, 7 Baxt. (Tenn.) 12. 
 
 i» Foreman v. Baldwin, 24 III. 298. 
 
 '1 Houghtaling v. Kelderhouse, 1 
 Park. (N. Y.) Cr. 241 ; Rex c. Ford, 
 2 Salk. 690 ; Dover v. Maestaer, 5 Esp. 
 92, 94.- " Although the incapacity to 
 testify, especially considered as a 
 mark of infamy, may really operate 
 as a severe punishment upon the 
 party, yet there are other considera- 
 tions affecting other persons wliich 
 may well warrant his exclusion from 
 the halls of justice. It is not con- 
 sistent with • the interests of others, 
 nor with the protection which is due 
 to them from the State, that they 
 should be exposed to the peril of tes- 
 timony from persons regardless of the 
 obligation of an oath ; and hence, on 
 grounds of public policy, the legisla- 
 ture may well require that, while the 
 judgment itself remains unreversed, 
 the party convicted shall not be heard 
 as a witness. It may be more safe to 
 exclude in all cases than to admit in 
 all, or attempt to distinguish by inves- 
 tigating the grounds on which the 
 
22 
 
 COMPETENCY. 
 
 [chap. II. 
 
 Even though the pardon be granted after the convict has 
 suffered the entire punishment imposed upon him, it will 
 rehabilitate him.^ The convict becomes competent to testify 
 notwithstanding a clause in the pardon declaring that noth- 
 ing contained therein is intended to relieve the prisoner 
 from the legal disabilities arising from his conviction and 
 sentence, but solely from imprisonment ; such clause is 
 repugnant, and will be treated as surplusage.^ To prove 
 the pardon, the charter of pardon, under the great seal of 
 the State, must be produced.^ 
 
 The reversal of the judgment of conviction will in all cases 
 restore competency ; for in such event there is no conviction 
 and consequently no infamy. The fact of reversal must be 
 sliown in the same manner as the judgment of conviction is 
 shown, viz., by production of the record of reversal, or an 
 exemplification thereof, in cases where the latter course is 
 permissible. 
 
 pardon may have been granted. And 
 it is without doubt as clearly within 
 the power of the legislature to modify 
 the law of evidence by declaring what 
 manner of persons shall be competent 
 to testify, as by enacting, as in the 
 Statute of Frauds, that no person shall 
 be heard viva voce in proof of a certain 
 class of contracts. The statute of 
 Elizabeth itself seems to place the 
 exception on the ground of a rule of 
 evidence, and not on that of a penal 
 f ulmination against the offender. The 
 intent of the legislature appears to 
 have been not so much to punish the 
 party, by depriving him of the privi- 
 lege of being a witness or a juror, as 
 to prohibit the courts from receiving 
 tlie oath of any person convicted of 
 disregarding its obligation. And 
 whether this consequence of the con- 
 viction be entered on the record or 
 not, the effect is the same. The judg- 
 ment, under the statute, being properly 
 sliown to the judges of a court of jus- 
 tice, their duty is declared in the stat- 
 ute independent of the insertion of 
 the inhibition as part of the sentence, 
 and unaffected by any subsequent 
 pardon. The legislature, in the exer- 
 cise of its power to punish crime, 
 awards fine, imprisonment, and the 
 
 pillory against the offender; in the 
 discharge of its duty to preserve the 
 temple of justice from pollution, it 
 repels from its jjortal the man who 
 feareth not an oath. Tims it appears 
 that a man convicted of perjury can- 
 not bo sworn in a court of justice 
 while the judgment remains unre- 
 versed, tliough his offence may have 
 been pardoned after the judgment; 
 but the reason is found in the express 
 direction of the statute to the courts, 
 and not in tlie circumstance of the 
 disability being made a part of the 
 judgment. The pardon exerts its full 
 vigor on the offender, but is not 
 allowed to operate beyond this, upon 
 the rule of evidence enacted by tlio 
 statute. The punishment of the crime 
 belongs to the criminal code, the rule 
 of evidence to the civil." — See Amer. 
 Jur., vol. xi., pp. 300-302. 
 
 1 State V. Blaisdell, 33 N. H. 388; 
 United States c. Jones, 2 Wheel. Cr. 
 Cas. 451. 
 
 2 People V. Pease, 3 Johns. (X. Y.) 
 Cas. 3.33. 
 
 5 State V. Blaisdell, 33 N. H. 388 ; 
 Cooper V. State, 7 Tex. App. 194. A 
 witness shown by production of the 
 record to have been convicted of 
 felony and sentenced for a term yet 
 
20.] 
 
 MORAL DISQUALIFICATION'S. 
 
 23 
 
 111 West Virginia, it is held tliat where a convict has 
 undergone the punishment of imprisonment in the peniten- 
 tiary under his sentence, the statute restores to him compe- 
 tency as a witness. And the fact of his being at liberty 
 after the length of time for which he was sentenced, is prima 
 facie evidence that he has suffered the punishment.^- 
 
 § 20. Abolition of the Disability by Statute. — In a large nu m- 
 ber of the States, statutory changes in the law have wholly abol- 
 ished the doctrine of incompetency by reason of conviction of 
 crime, however infamous, leaving the fact of such conviction 
 to be considered by the jury upon the sole question of the 
 credibility of the witness. Sucli is the present state of the 
 law in California,^ Colorado,^ Connecticut,* Delaware,'^ 
 Georgia,® Illinois,'^ Indiana,^ lowa,^ Kansas,^'' Maine,-'-' Massa- 
 chusetts,^^ Michigan,!^ Minnesota,^* Missouri, ^^ New Hamp- 
 shire,^'' New Jersey,^'' New York,!^ North Carolina, ^^ Rhode 
 Island,^" Vermont,^^ Virginia,^^ and Wisconsin.^^ 
 
 unexpired, and so disqualified, will 
 not be presumed to liave been par- 
 doned merely because lie is in attend- 
 ance and apparently at large, but may 
 be interrogated whetlier he has re- 
 ceived a pardon. Schell i--. State, 2 
 Tex. App. 30. 
 
 1 State V. Williams, 14 W. Va. 851. 
 Compare State v. Connor, 7 La. Ann. 
 379. To the contrary, see United 
 States V. Brown, 4 Crancli, C. C. C07 ; 
 and see also State v. Beiioit, IG La. 
 Ann. 273. The fact that sentence has 
 been suspended, pending an appeal, 
 will not render the convicted person 
 competent. Kittar u. Democratic 
 Press Co., G8 Mo. 458. And one who 
 has been convicted, but has not paid 
 liis fine, is not a competent witness for 
 his co-defendant. Ellege v. State, 24 
 Tex. 78. 
 
 2 Hittell's Code, § 11,879. 
 
 3 Gen. Laws, 1877, ch. 104. 
 
 4 Rev. Stat. 1849, tit. 1, § 141 ; Gen. 
 Slat. 1875, p. 440. 
 
 5 Laws 1874, p. 652. 
 
 6 Code 1882, § 3854. See also Train 
 V. State, 40 Ga. 529. 
 
 'I Kev. Stat. 1880, p. 505, § 1 ; Ear- 
 tholomew v. People, 104 111. 601. 
 
 8 Code, § 243; Glenn v. Clore, 42 
 Ind. 00. 
 
 9 Code 1851, art. 2388; Eev. Code 
 1880, § 3636. 
 
 M Comp. Laws 1879, § 3847. 
 
 " Laws 1861, ch. 53; Woodman v. 
 Churchill, 51 Me. 112. 
 
 12 Gen. Stat. ch. 131, § 13 ; Pub. 
 Stat. ch. 169, § 18; Laws 1852, ch. 
 312, § 60. Newhall v. Jenkins, 2 Gray 
 (Mass.) 562. 
 
 13 Eev. Stat. 1846, ch. 102, § 99 ; 
 Laws 1861, ch. 125, p. 118. 
 
 14 Stat. 1878, p. 792, §7. 
 
 1^ See United States v. Biebusch, 1 
 Fed. Eep. 213 ; s. c, 1 McCrary, 42. 
 
 15 Gen. Laws 1878, ch. 228, § 27. 
 " Eev. p. 378, § 1. 
 
 18 Laws 1869, ch. 678; Code Civ. 
 Pro. § 832; Delamater v. People, 5 
 Lans. (N. Y.) 332; Donohoe 6. Peo- 
 ple, 56 N. y. 208 ; National Trust Co. 
 V. Gleason, 77 N. Y. 400; Perry r. 
 People, 86 N. Y. 353 ; s. c, 62 How. 
 Pr. 148 ; People v. McGloin, 91 N. Y. 
 241. 
 
 19 Batt. Eev. 1873, p. 388, § 14 ; 
 State V. Harston, 63 N. C. 294. 
 
 23 Pub. Stat. 1882, ch. 214, § 38. 
 
 21 Eev. Stat. 1880, § 1008. 
 
 22 Johnson's Case, 2 Gratt. (Va.) 
 581. 
 
 23 Rev. Stat. U"-78, § 4073 ; Sutton 
 V. Fox, 55 Wis. 5J1. 
 
24 COMPETENCY. [CHAP. II. 
 
 In a few States an exception is made in the case of a per- 
 son convicted of perjury ; such person not being permitted 
 to testify, even though he has received a pardon, or has 
 suffered the full punishment provided by law for the offence. 
 Among these States are Florida,^ Maryland,? Mississippi,^ and 
 South Carolina.* 
 
 In Arkansas, consent of the parties is essential to the 
 admissibility of the testimony of a person convicted of one of 
 the higher grades of criine.® In Tennessee, such persons are 
 incompetent until restored to full rights of citizenship, in 
 accordance with the law provided for that purpose.^ In 
 Texas, the reversal of the judgment (if for felony) or a 
 pardon is essential, and in the case of perjury, even a pardon 
 will not rehabilitate the witness." 
 
 § 21. Accomplices. — The doctrine of the common law 
 which forbids the reception of accomplice testimonj'-, seems 
 to be founded upon the interest of the witness in the event 
 of the trial, rather than upon his disqualification from a 
 moral standjDoint. These witnesses generally testify against 
 their confederates, under an understanding, express or 
 implied, that their aid in bringing the principal offender to 
 justice will secure to themselves, either absolute immunity, or 
 at least a considerable mitigation of the severity of the pun- 
 ishment which would, in the nature of things, be meted out 
 to them in case they did not so testify. For this reason the 
 competency of this class of witnesses will be treated more 
 fully when we come to consider the disqualification of inter- 
 est.^ But it is proper to state in this place, that however 
 heinous his guilt may be, an accomplice or accessory, even 
 though indicted, who has not been convicted and sentenced 
 for an infamous crime, is not, on the ground of infamy, an 
 incompetent witness. 
 
 In many cases the principal offender could not be con- 
 victed without the testimony of the partice.ps criminis, and 
 it is this fact which justifies his admission to testify.^ 
 
 1 Thomp. Dig. pp. 334, 335 ; Dig. of « Infra, § i2. 
 
 Laws, 1881, p. 518. « United States c. Lancaster, 2 Mc- 
 
 2 Rev. Code 1878, p. 749, § 1. Lean (U. S.) 431; United States v. 
 8 Rev. Code 1880, § 1(500. Troax, 3 Id. 224; United States v^ 
 * Gen. Stat. 1882, § 2532. Henry, 4 Wash. (U. S.) 428; Marler 
 '- Dig. of Stat. 1874, § 24. r. State, 67 Ala. 55; s. c, 68 Id. 580 ; 
 6 Stat. 1871, § 3812. Solander v. People, 2 Col. T. 48 ; State 
 ' Code Crim. Pro. art. 730. v. Sliields, 45 Conn. 256 ; Gray v. Peo- 
 
§ 21. J MORAL DISQUALIFICATIONS. 25 
 
 In a recent New York case it is laid down that an accom- 
 plice is competent to testify, regardless of the extent of Iiis 
 own guilt, even though it may exceed that of the principal 
 defendant, and that it lies in the discretion of the trial court 
 whether or not to admit him as a witness.^ A few cases 
 decide that an accomplice ivho has not been indicted is compe- 
 tent;^ but the great weight of authority raises no distinction 
 between accomplices who have been, and those who have not 
 been indicted, but rather between those who have and those 
 who have not been convicted and sentenced? 
 
 In most of the cases just cited the accomplice was offered 
 as a .witness for the prosecution. Upon the question of his 
 competency for the defence, the authorities are not harmoni- 
 ous; but the better opinion seems to favor his admission, 
 where the evidence against him is slight; and the court, in 
 such cases, will generally direct his acquittal, and then admit 
 him to testify ; or a nolle prosequi as to him may be entered 
 by the prosecutor with the consent of the court.* But it 
 seems to be pretty well settled that, unless he be acquitted, 
 or a nolle entered, he will not be competent to testify in 
 favor of the principal offender, or his other co-partners in 
 guilt.^ And there are many respectable adjudications which 
 expressly deny to the accessory or accomplice the right to 
 testify in favor of the principal.^ 
 
 pie, 20 111. 344; Earll v. People, 73 State v. Carr, Coxe (N.J.) 1; State 
 
 111. 329 ; Johnson v. State, 2 Ind. 652; v. Weir, 1 Dev. (N. C.) L. 368 ; State 
 
 Ayers v. State, 88 Ind. 275; State v. v. Mooney, 1 Yerg. (Tenn.) 431 ; My- 
 
 Cook, 20 La. Ann. 145; Moulton u. ers v. State, 3 Tex. App. 8; s. c. Id. 
 
 Moiilton, 13 Me. 110; Sinclair a. 321. Whether lie can so testify after 
 
 Jackson, 47 Me. 102 ; Territory v. having heen convicted, see State i-. 
 
 Corbett, 3 Mont. T. 50 ; People Stotfs, 26 Mo. 307 ; Garrett u. State, 
 
 ).. Whipple, 9 Cow. (N. T.) 707 ; Peo- Mo. 1 ; Campbell v. Commonwealth, 
 
 pie V. Costello, 1 Den. (N. Y.) 83; 2 Va. Cas. 314; State v. Turner, 1 
 
 People V. Lohman, 2 Barb. (N. Y.) Del. Cr. Rep. 76. If the judgment is 
 
 216 ; Noland v. State, 19 Ohio, 131. for a fine merely, and he has paid the 
 
 1 Lindsay v. People, 03 N. Y. 143. fine, he may testify. 2 Russ. Cr. 597, 
 
 2 Phillips V. State, 34 Ga. 502; 600; R. v. Wislbeer, 1 Leach, C. C. 
 Sumpter v. State, 11 Pla. 247; Mc- 14; R. v. Fletcher, 1 Str. 633. 
 Kenzie v. State, 24 Ark. 036. " Collier v. State, 20 Ark. 30 ; State 
 
 ^ Cases first cited, supra. v. Calvin, R. M. Charlt. (Ga.) 151. 
 
 * State V. Graham, 12 Vr. (N. J.) Eight of the principal offender to tes- 
 
 15. S. P. United States v. Hanway, 2 tify against the accessory on the sep- 
 
 Wall, Jr. 139; People v. Labra, 5 Cal. arate trial of the latter, see Keech i\ 
 
 183. State, 15 Fla. 591 ; People v. Whip- 
 
 SArmistead o. State, 18 Ga. 704; pie, 9 Cow. (N. Y.) 707; Noland u. 
 
 People V. Bill, 10 Johns. (N. Y.) 95; State, 19 Ohio, 131. 
 
CHAPTER III. 
 
 OF SOCIAL DISQUALIFICATIONS. 
 
 § 22. Indians. 
 
 § 23. Negroes and Slaves. 
 
 § 24. Chinamen. 
 
 § 22. Indians. — It has been held in Indiana, that although 
 an Indian is not a competent witness in that State, j'et the 
 f;ict that a witness is principal chief of an Indian nation, is, 
 at most, but presumptive evidence that he is an Indian, 
 which, in the Supreme Court, is rebutted by the fact that he 
 was admitted to testify in the Circuit Court.^ The same rule 
 of incompetency was adopted in California.^ In Mississippi, 
 however, an Indian is conceded to be a competent witness in 
 a suit between white men, and is under no other restric- 
 tions than a white person.^ So, also, in Nebraska, the onlj^ 
 test of an Indian's incompetency, so far as the fact of his 
 being an Indian is concerned, is his capacity to understand 
 and feel the obligation of an oath.* 
 
 § 23. Negroes and Slaves. — During the existence of the 
 institution of slavery in this country, and even after its aboli- 
 tion, and prior to the going into effect of the act of Congress 
 commonly called the " Civil Rights Bill," it was the settled 
 law in the slave States that persons having more than one- 
 fourth (in some jurisdictions one-eighth) negro blood in their 
 veins were incapable of becoming witnesses in any action, 
 civil or criminal, in which a white person was a pdrty in 
 interest.^ But the ride did not generally apply where both 
 
 ' Harris v. Doe, 4 Blackf. (Ind.) 369. Ga. Dec. Tt. I. 77 ; Graham v. Crock- 
 
 2 People K. Howard, 17 Cal. 63. ett, 18 Ind, 119; Nave v. AVilliams, 
 
 3 Coleman v. Doe, 4 Sm. & M. 40; 22 Id. 368; Kusk v. Sowerwine, 3 liar. 
 Doe V. Newman, 3 Sm. & M. 505. & J. (Md.) 97 ; Sprigg v. Negro Mary, 
 
 * Priest V. State, 10 Neb. 393; s. c, Id. 491 ; Hughes v. Jackson, 12 Md. 
 
 6 N. W. Rep. 468. 450; Page v. Carter, 8 B. Mon. (Ky.) 
 
 "i Smyth V. Oliver, 31 Ala. 39 ; Du- 102 ; Jordan u. Smith, 14 Ohio, 199 ; 
 
 prce v. State, 33 Id. 380; Heath v. Dean u. Commonwealth, 4 Gratt. (Va.) 
 
 State, 34 Id. 250; Brown v. Lester, 541. 
 
§ 23.] SOCIAL DISQUALIFICATIONS. 27 
 
 parties, the proceeding being of a civil nature, were negroes, 
 or where the defendant, the action being a criminal one, was 
 a negro.i And even wheie a white person was a party, tlie 
 rule had some exceptions: thus, in such a case a negro was 
 admitted to prove his book of original entries in order to 
 make it evidence;^ and the confession of a white man on 
 trial for a crime was allowed to be proved by a colored wit- 
 ness.^ Again, it was held competent to show that certain 
 acts were done in consequence of information received fronr 
 a negro;* and a conversation between the prisoner (a white 
 man) and a negro was allowed to be proved, but only bj' a 
 white witness.^ Another exception was where the negro 
 offered as a witness was the person injured by the crime for 
 which a white man was put on trial. Thus it was held in 
 Delaware that the negro on whom the assault and battery 
 charged in the indictment was committed was competent 
 on the trial of the prosecution for such assault against a 
 white man, although there was a white witness present when 
 it was committed.^ And the same principle was applied in 
 the case of a negro who had been kidnapped by a white man.^ 
 
 In some cases the witness, if a free negro, was permitted 
 to testify even against a wliite antagonist ; ^ in others he was 
 not,3 but only where both parties were colored.^" Color 
 alone was not, however, deemed sufficient proof of incompe- 
 tency; thus a dark-colored native of Turkey was held com- 
 petent in the absence of proof of African descent.^^ 
 
 Upon the enactment of the Civil Rights Bill this absurdly 
 unjust rule of evidence was utterly abrogated. This act of 
 Congress is paramount as to the competency of witnesses, and 
 must prevail where its provisions come in contact with 
 
 I Elliott V. Morgan, 3 Harr. (Del.) contrary, see People v. Howard, 17 
 
 316 ; Woodward v. State, 6 Ind. 492. Gal. G3. 
 
 Contra, Gray o. State, 4 Ohio, 353; » Ivey f. Hardy, 2 Port. (Ala.) 548; 
 
 Jones V. State, 1 Meigs (Tenn.) 120. Potts v. Harper, 2 Penn. (N. J.) 1030; 
 
 ^ Webb V. Pindergrass, 4 Harr. Giirnee v. Dessies, 1 Johns. (N. Y.) 
 
 (Del.) 439. 508. 
 
 " State V. Downham, 1 Del. Cr. 45. " Eusk v. Sowerwine, 3 Har. & J. 
 
 « Grady v. State, 11 Ga. 253. (Md.) 97 ; Groning v. Devana, 2 Bail. 
 
 6 Hawkins v. State, 7 Mo. 190. Com- (S. C.) 192. 
 
 pare Eagland c. liuntingdon, 1 Ired. i" Jones ;;. Jones, 12 Rich. (S. C.) 
 
 (N. C.) L. 561. 116. See also State v. McDowell, 2 
 
 <i State V. Kash, 1 Del. Cr. 271. Brev. (S. C.) 145; White !•. Heliiics, 
 
 ' State v. Whitaker, 3 Harr. (Del.) 1 MeCord (S. C.) 430. 
 
 549 ; State v. Griffin, Id. 500. To the " People i-. Elyea, 14 Cal. 144. 
 
28 COMPETENCY. [CHAP. III. 
 
 State law. The first section gives negroes equal rights with 
 wliites to give evidence, and they are therefore competent 
 witnesses.^ 
 
 § 24. Chinamen. — It has been held in California that, a 
 Chinaman is an " Indian " within the meaning of the statute 
 excluding " Indians " as witnesses.^ And a more recent case 
 decides that the words "white pei'son," in the California act 
 which provides that "no Indian, or person having one-half or 
 more of Indian blood, or Mongolian, or Chinese, shall be per- 
 mitted to give evidence in favor of or against a white per- 
 son," refer to the defendant only in a ci'iminal action ; and a 
 Chinaman, who is on trial for crime, may introduce Chinese 
 witnesses in his behalf.^ Another case in the Supreme 
 Court of California denies to a Chinaman the right to testify 
 against a white man who is indicted for robbing him;* but 
 as recently as January, 1884, the United States District 
 Co'urt, sitting in that State, laid down what Avill doubtless 
 be universally accepted as the true rule, viz. that Chinese 
 persons are, under the Constitution and laws of the United 
 States guaranteeing to them "the equal protection of the 
 laws," competent witnesses.^ The test of their competencj', 
 as in the case of Indians, is their capacity to understand the 
 obligation of an oath." 
 
 1 Ex parte Warren, 31 Tex. 143 ; 2 Cal. Code, § 394 ; Spcer u. See 
 
 Kelly 0. State, 25 Ark. ,392 ; S. P. Yup Co. 13 Cal. 73. 
 
 Clarke v. State, 35 Ga. 75; State v. ^ People ;i. Awa, 27 Cal. 638. 
 
 Underwood, 03 N. C. 98. Contra, " People v. Jones, 31 Cal. 565. 
 
 Bowlin V. Coinmonwealtli, 2 Bush ^ 7,; ,.,; Tung Yeong, 1 "West Coast. 
 
 (Ky.) 5. And see Turner v. Parry, Eep. 647; .s. c, 19 Fed. Rep. 184. 
 
 27 Ind. 163. e The Merrimac, 1 Ben. (U. S.) 400. 
 
CHAPTER IV. 
 
 COMMON LAW ETJLE AS TO PARTIES TO THE EECOKD. 
 
 § 25. The General Rule excluding tliom. 
 
 § 26. The Scope and Extent of the Rule. 
 
 § 27. Its Limits and Exceptions. 
 
 § 28. Disinterested, Nominal, and Unnecessary Parties. 
 
 § 29. Parties Liable for Costs. 
 
 § 30. The Uule in Courts of Equity. 
 
 § 31. Competency of One Party as a Witness for Another Party. 
 
 § 32. Competency of Defendant for Co-defendant, generally. 
 
 § 33. in Actions on Contract. 
 
 § 34. in Actions of Tort. 
 
 § 35. in Suits in Equity. 
 
 § 36. Competency of Defendant for Plaintiff. 
 § 37. Competency of Plaintiff for Defendant. 
 § 38. Effect of Default, nolle prosequi , or Verdict : in Actions on Contract. 
 
 § 39. in Actions of Tort. 
 
 § 40. Effect of Misjoinder of Parties Defendant. 
 
 § 41. Witness made Party by Mistake. 
 
 § 42. Common Law Rule as to Defendants in Criminal Cases. 
 
 § 43. Effect of Separate Indictments or Separate Trials. 
 
 § 44. Effect of examining Adverse Party as a Witness. 
 
 § 45. Competency of Judges and Arbitrators. 
 
 § 25. The General Rule excluding Them. — The general rule, 
 at common law, is that no party to the record, in a civil suit, 
 can be a witness either on his own behalf or on that of any 
 other party to the suit. ^ 
 
 This rule was founded both upon the interest of the witness 
 in the event of the litigation, and upon a general recognition 
 by the law-makers of the expediency of confining the tempta- 
 tions to commit perjury within the narrowest possible limits. 
 Thus it has been repeatedly held that a party upon the 
 record, although divested of all interest in the event of the 
 suit, is an incompetent witness. ^ 
 
 1 3 Bl. Comm. 371 ; 1 Gilb. Ev. Lucas v. Payne, 7 Cal. 92 ; Patterson 
 
 (Lofft ed.) p. 221; Erear v. Evertson, v. Cobb, 4 Fla. 481; Marks c. Butler, 
 
 20 Johns, (N. Y.) 142. 24 111. 567 ; Erear v. Evertson, 20 
 
 ' Bridges !/•. Armour, 5 How. (U.S.) Johns. (N. Y.) 142; Schermerhorn ;•. 
 
 91 ; Blanchardi..Sprague,lCliff.(U.S.). Schermerhorn, 1 Wend. (N. Y.) 119; 
 
 288; The Neptune, 01c. Adm. 483; Benjamin v. Coventry, 19 Id. 0£:!; 
 
go COJIPETENCY. [chap. IV. 
 
 But it is believed that the best considered cases, even at 
 common law, based the incompetency of a party to the record, 
 on the ground of interest, and not entirely upon the fact of 
 the witness being a party to the action. Thus it was held 
 in Kentucky, that persons are not incompetent as witnesses 
 merely because they are parties to the action ; but if they 
 are parties to the issue, then they are incompetent to testify 
 either in their own favor or in favor of those united with 
 them in the issue ; or, if they are not parties to the issue, yet 
 if they are interested in it, whether they are parties to the 
 action or not, they are also incompetent to testify in their 
 own favor. ^ 
 
 And Gilbert, Ch. B., said it was a corollary to be deduced 
 from the general rule, that persons interested in the event 
 were, for that reason, incompetent to testify, " that the plain- 
 tiff or defendant cannot be a witness in his own cause, for 
 these are the persons who have a most immediate interest." ^ 
 Again, in another case, in the English Common Pleas, ^ 
 Tindal, Ch. J., said: " No case has been cited, nor can any be 
 found, in which a witness has been refused upon the objec- 
 tion, in the abstract, that he was a party to the suit. On tlie 
 contrary, many have been brought forward, in which parties 
 to the suit, who suffered judgment by default, have been 
 admitted as witnesses against their own interest ; and tlic 
 only inquiry seems to have been, in a majority of cases, 
 whether the party called was interested in the event or not : 
 the admission or rejection of the witness has depended upon 
 this inquiry." ^ 
 
 The party being incompetent on account of his interest in 
 the suit, his declarations were also considered inadmissible, 
 in his own behalf, as evidence of the facts therein stated; for 
 
 Canty v. Sumter, 2 Bay (S. C.) 93; Steptoe ... Kcad, 10 Gratt. (Va.) 1. 
 
 Knight V. Packard, 3 MeCord (S. C.) See infra, § 28. 
 
 71; Goodwin J). Harrison, Ala. 438; 2 Gilb. Ev. (3 ed.) 132. S.'i'.,per 
 
 Smith V. Moore, 4 111. 402 ; GlUett v. Lord Ilardwickc, 3 Atk. 401. 
 
 Sweat, 6 111. 475; Page v. Page, 15 » Worrall i'. Jones, 7 Bing. 395, 398, 
 
 Pick. (Mass.) 368; Johnson v. Black- 399. 
 
 man, 11 Conn. 342; Beer v. Ward, 13 * That one of two or more defend- 
 
 La. Ann. 467; Beebe v. Kaiser, 19 ants wlio has allowed judgment to go 
 
 Lb,. Ann. 270. l.y default, is not thereby rendered 
 
 1 Chenowith v. Yielding, 2 Mete, competent, see Ballard v. Noaks, 2 
 
 (Ky.) 517. S. P. Saflord i-. Lawrence, Ark. 45; Bank of Louisiana u. Hud- 
 
 6 Barb. (N. Y.) 560; Bryant u. Hun- son, 13 La. Ann. 000; Swanzcy u. 
 
 ter, Bush. (Ky.) 75. But compare Parker, 50 Pa. St. 441. 
 
§ 26.] PARTIES TO THE RECORD. 31 
 
 it was considered that in many cases it would be safer for the 
 purposes of justice to allow the party himself to testify than 
 to admit his statements out of court as evidence in his own 
 favor,-'- 
 
 § 26. ThG Scope and Extent of the Rule. — When the trial 
 is by jury, the common-law rule, both in civil and criminal 
 cases, not only refuses to permit a party to testify at his own 
 instance, but surrounds him with its protecting arm, and re- 
 fuses to compel him to give evidence for his adversary and 
 against himself. This protection is extended to all the real 
 parties to the controversy, both of record and not of record ; ^ 
 and is afforded by the application of the maxim. Nemo seipsum 
 tenetur prodere, as to the beneficent working of which rule 
 opinions of able jurists have differed for centuries; one cele- 
 brated judge having designated it as " a rule founded in good 
 sense and sound policy," ^ while other eminent jurists and 
 writers have attacked it with great vigor. It is profitless, 
 however, at the present day, to speculate upon the policy of 
 this maxim, as both in England and this country, it, in com- 
 mon with many others, once equally venerated, has, so far at 
 least as civil cases are concerned, been buried beyond resur- 
 rection in a statutory grave.* 
 
 If, however, the party is willing to testify, or, if, being only 
 a nominal party, the real party in interest consents, he may, 
 in certain cases, be examined.^ But where a party volunteers 
 his own testimony, either for himself, or on behalf of a co- 
 suitor identified in interest with him, the common-law rule 
 excludes him, upon the principle that "it is not to be pre- 
 sumed that a man who complains without cause, or defends 
 without justice, should have honesty enough to confess it." ^ 
 
 1 1 Phill. Ev. (10 ed.) 37; Suther- Again, Baron Gilbert says: "For 
 land ti. M'Lauglilin, Car. & M. 429. where a man wlio is interested in the 
 
 2 R. V. Woburn, 10 East, 395 ; Fenn matter in question would also prove 
 V. Granger, 3 Campb. 177 ; Appleton it, it ratlier is a ground for distrust 
 V. Boyd, 7 Mass. 1.31; Mauran u, than any just cause of belief; for 
 Lamb, 7 Cow. (N. Y.) 174; Worral! men are generally so sliort-sighted as 
 r. Jones, 7 Bing. 395; Flint w. AUyn, to look to their own private benefit, 
 12 Vt. 615. which is near them, rather than to the 
 
 » Tindal, C. J., in 'Worrall v. good of the world, • which, though on 
 
 Jones, 7 Bing. 395. the sum of things really best for the 
 
 * See infra, Chap. VIII. individual,' is more remote ; therefore, 
 
 "* Facer y. Evertson, 20 Johns iW.T.) from the nature of liuman passions 
 
 142. and actions, tliere is more reason to 
 
 '' 1 Gilb. Ev. (Lofft ed.) p. 243. distrust such a biassed testimony than 
 
32 COMPETENCY. [CHAP. IV. 
 
 Thus, it has been held, that a party cannot, in any action, 
 be a witness to prove payments wliich he lifts made ;i and 
 that no party can testify in his own case, if it appears that 
 another person can testify to the same facts, even though 
 such person lives out of the State ; ^ and that even one who, 
 by purchase, has become merely a quasi party to the suit is 
 incompetent. ^ So, also, a plaintiff was not permitted to prove 
 an acknowledgment or new promise of the defendant, in 
 order to remove the bar of the statute of limitations.* 
 
 § 27. Its Limits and Exceptions. — But this rule of the com- 
 mon law, excluding parties as witnesses, has some further 
 exceptions which have not yet been noted. First among 
 these is the admission of what, in the Roman law, was called 
 the oath in litem, which is admitted in two classes of cases : 
 first, where the party against whom the other party's oath is 
 offered has already been shown to have been guilty of some 
 fraud or other wrongful and unwarrantable act of intermed- 
 dling with the complainant's goods, and no other evidence 
 can be adduced upon the question of the amount of damages 
 sustained ; and, secondly, where public necessity and expedi- 
 ency demands the party's testimony as essential to the due 
 administration of justice.^ 
 
 to beliere it. It is also easy for per- (Tenn.) 123, is a good example of the 
 
 sons who are prejudiced and prepos- first class of cases. So where bailiffs, 
 
 sessed, to put false and unequal in serving an execution, found money 
 
 glosses upon what they give in evi- secreted in a wall, which they emhe~- 
 
 dence ; and therefore the law removes zled, and also did damage to other 
 
 them from testimony, to prevent their goods of the execution debtor, the lat- 
 
 sliding into perjury ; and it can be no ter was allowed to testify as to the 
 
 injury to truth to remove those from damage done to the other goods, 
 
 the jury whose testimony may hurt Childrens v. Saxby, 1 Vern. 207 ; 
 
 themselves, and can never induce any s. c, 1 Eq. Cas. Abr. 229. So also 
 
 rational belief." 1 Gilb. Ev. (Lofft. the owner of jewels with which the 
 
 ed.) p. 223. defendant had run away, was allowed 
 
 The fallacy of this reasoning will to swear to their value (Anonymous, 
 
 be seen more clearly when we come to cited in East India Co. v. Evans, 1 
 
 consider the common-law doctrine of Vern. 308) ; and where a trunk is 
 
 incompetency by reason of interest in lost in transit, through guilty and un- 
 
 the event. Infra, §§ 46, etc. warrantable interference with it on the 
 
 i Bradley v. Goodyear, 1 Day part of the carrier, the owner may 
 
 (Conn.) 104. swear to its contents (Garvey v. Cam- 
 
 2 Evans v. Hardgrove, 11 Tex. 210. den &.c. R. R. Co., 1 Hilt. (N. Y.) 280) ; 
 
 3 Jones u. McNeil, 2 Bail. (S. C.) but, in the last two cases cited, the 
 ■i^O- party's oath was only admitted in 
 
 * \yeed V. Bishop, 7 Conn. 128. odium spoliatoris. To the same effect 
 
 5 Tait, Evid. 280; 1 Grecul. Evid. § see Herman i'. Drinkwater, 1 Mo. 27 ; 
 
 348. Queener v. Morrow, 1 Coldw. reaffirmed in Gilmore v. Bowdcn, 3 
 
§27.] 
 
 PARTIES TO THE RECORD. 
 
 33 
 
 An examination of the cases just cited will show that in 
 one at least of them (Herman v. Drinkwater) the party's 
 testimony was admitted on the ground of necessity alone, 
 while most of the others required the element of fraud or 
 intermeddling to co-exist with the absence of other means 
 of proof. 1 
 
 Fairf. (Me.) 412, where the evidence 
 was admitted on the ground of ne- 
 cessity, although the defendant had 
 (dearly been guilty of gross fraud. 
 Herman u. Drinliwater was com- 
 mented on in Snow v. Eastern R. R. 
 Co., 12 Mete. (Mass.) 46, 47, as fol- 
 lows : " In that case a shipmaster re- 
 ceived a trunk of goods in London, 
 belonging to the plaintiff, to be car- 
 ried in his ship to New York, and on 
 board which the plaintiff had engaged 
 his passage. The master sailed, de- 
 signedly leaving the plaintiff, and 
 proceeded to Portland instead of New 
 York. He there broke open and plun- 
 dered the trunk. These facts were 
 found aliunde, and the plaintiff was 
 allowed to testify as to the contents 
 of the trunk. These cases proceed 
 upon the criminal character of the 
 act, and are limited in their nature. 
 The present case does not fall within 
 the principle. Here was no robbery, 
 no tortious taking-away by the de- 
 fendants, no fraud committed. It is 
 simply a case of negligence on the 
 part of carriers. The case is not 
 brought within any exception to the 
 common rule, .ind is a case of defect- 
 ive proof on the part of the plaintiff, 
 not arising from necessity, but from 
 want of caution. To admit the plain- 
 tiff's oath in cases of this nature would 
 lead, we think, to much greater mis- 
 chiefs, in the temptation to frauds and 
 perjuries, than can arise from exclud- 
 ing it. If the party about to travel 
 places valuable .irticles in his trunk, 
 lie should put them under the special 
 charge of the carrier, with a statement 
 of what they are and of their value, 
 or provide other evidence beforehand 
 of the articles taken by him. If he 
 omits to do this, he then takes the 
 chance of loss as to the value of the 
 article^, and is guilty, in a degree, of 
 
 negligence, — the very thing with 
 which he attempts to charge the car- 
 rier. Occasional evils only have oc- 
 curred from such losses through fail- 
 ure of proof, the relation of carriers 
 to the party being such that the losses 
 are usually adjusted by compromise. 
 And there is nothing to lead us to in- 
 novate on the existing rules of evi- 
 dence. No new case is presented, no 
 facts which have not repeatedly oc- 
 curred, no new combination of cir- 
 cumstances." 
 
 ^ The latter rule is adopted in Chris- 
 tian !•. The United States, 7 Ct. of CI. 
 4.31. Many cases against bailees are 
 found which seem to proceed upon 
 the ground of necessity alone (Doug- 
 lass V. Montgomery &c. R. C. Co., 37 
 Ala. 038 ; s. c, 1 Ala. Sel. Cas. 566 ; 
 Kitchen K. Robbins, 29 Ga. 713; Pet- 
 tigrew V. Barnum, 11 Md. 434; Par- 
 melee i>. McNulty, 10 111. 556 ; Indiana 
 &c. R. R. Co. V. Gulick, 19 Ind. 83 ; 
 Nolan V. Ohio &c. R. R. Co., 39 Mo. 
 114; Williams v. Frost, Id. 516; Tay- 
 lor V. Monnot, 4 Duer (N. Y.) 116), 
 and many others deny to the plaintiff 
 the right to testify as to the contents 
 or value in such cases (McNabb v. 
 Lockhart, 18 Ga. 495 ; Illinois &c. R. 
 R. Co. 1.. Taylor, 24 111. 323 ; Same v. 
 Copeland, Id. 332 ; Packard v. North- 
 craft, 2 Mete. (Ky.) 439; Pope v. Hall, 
 14 La. Ann. 324 ; Block v. The Trent, 
 18 Id. 004; Wright v. Caldwell, 3 
 Mich. 51 ; Snow v. Eastern R. R. Co., 
 12 Mete. (Mass.) 44; Smith v. N. 
 Carolina R. R. Co., 1 Winst. (N. C.) 
 203; David v. Moore, 2 Watts & S. 
 (Pa.) 230. In Clark i: Spence, 10 
 Watts (Pa) 336, 337, Rogers, J., il- 
 lustrates these principles as follows : 
 "A party is not competent to testify 
 in his own cause ; hut, like every 
 other general rule, this has its excep- 
 tions. Necessity, either physical or 
 
34 
 
 COMPETENCY. 
 
 [chap. IV. 
 
 The question ^vas quite recently presented for solution to 
 the Supreme Court of the United States,^ in the case of an 
 appeal from the Court of Claims. In rendering the opinion 
 of the Supreme Court, Miller, J., said : " We are of opin- 
 ion that, by the rules of evidence derived from the common 
 law, as it is understood in the United States, whenever 
 it becomes important to ascertain the contents of a box, 
 trunk, or package which has been lost or destroyed under 
 circumstances that make some one liable in a court of justice 
 for the loss, and the loss and liability are established by other 
 testimony, the owner or party interested in the loss, though . 
 
 moral, dispenses with the ordinary 
 rules of evidence. In 12 Vin. 24, pi. 
 32, it is laid down that on a trial at 
 Bodnyr, coram Montague, B., against 
 a common carrier, a question arose 
 about tlie things in a box ; and he 
 declared that this was one of those 
 cases where the party himself might 
 be a witness ex necessitate rei. For 
 every one did not show what he put 
 in his box. The same principle is 
 recognized in decisions which have 
 been had on the statute of Hue-and 
 Cry, in England, where the party 
 robbed is admitted as a witness ex 
 necessitate (Bull. N. P. 181). So, in 
 Herman v. Drinkwater, 1 Greenl, 27, 
 a shipmaster, having received a trunk 
 of goods on board his vessel, to be 
 carried to another port, which, on the 
 passage he broke open and rifled of 
 its contents, the owner of the goods, 
 proving the delivery of the trunk, and 
 its violation, was admitted as a witness, 
 in an action for the goods against the 
 shipmaster, to testify to the particular 
 contents of the trunk, there being no 
 other evidence of the fact to be ob- 
 tained. That a party, then, can be 
 admitted under certain circumstances 
 to prove the contents of a box or 
 trunk, must be admitted. But, while 
 we acknowledge the exception, we 
 must be careful not to extend it be- 
 yond its legitimate limits. It is ad- 
 mitted from necessity, and perhaps on 
 a principle of convenience ; because, 
 as is said in Vincr, every one does not 
 show what he puts in a box. This 
 ;applies with great force to wearing 
 
 apparel, and to every article which is 
 necessary or convenient to the travel- 
 ler, — which in most cases are packed 
 by the party himself or his wife, and 
 which therefore would admit of no 
 other proof. A lady's jewelry would 
 come in this class ; and it is easier to 
 conceive than to enumerate other arti- 
 cles which come within the same cate- 
 gory. Nor would it be right to restrict 
 the list of articles which may be so 
 proved, within narrow limits, as the 
 jury will be the judges of the credit 
 to be attached to the witness, and he 
 able in most cases to prevent any in- 
 jury to the defendant. It would seem 
 to me to be of no consequence whether 
 the article was sent by a carrier, or 
 accompanied the traveller. The case 
 of Herman ;;. Drinkwater, I would 
 remark, was decided under very aggra- 
 vated circumstances, and was rightly 
 ruled. But it must be understood 
 that such proof cannot be admitted 
 merely because no other evidence of 
 the fact can be obtained ; for if a 
 merchant, sending goods to his corre- 
 spondent, chooses to pack them him- 
 self, liis neglect to furnish himself with 
 the ordinary proof is no reason for dis- 
 pensing witli the rule of evidence, 
 which requires disinterested testi- 
 mony. It is not of the usual course 
 of business ; and there must be some- 
 thing peculiar and extraordinary in 
 the circumstances of the case wliich 
 would justify the court in admitting 
 the oath of the party." 
 1 October term, 1877. 
 
§ 27.] PARTIES TO THE RECORD. 35 
 
 he may be a party to the suit, is a competent witness to prove 
 the contents so lost or destroyed.^ This is one of those 
 exceptions to the rigorous rule of the common law excluding 
 parties and persons having an interest in the result of the 
 suit from becoming witnesses in their own behalf, which has 
 been engrafted upon that system. It is founded in the 
 necessity of permitting the only party who knows the matter 
 to be proved, to testify in order to prevent an absolute fail- 
 ure of justice, where his right to relief has been established 
 by other evidence. We are aware that there is a conflict of 
 authority on this point, but we believe the preponderance is 
 in favor of the proposition we have stated ; and, looking at it 
 as a matter of principle, in the light of the progress of legis- 
 lation and judicial decision, in the direction of more liberal 
 rules of evidence, we have no hesitation in adopting it in the 
 absence of legislation bj^ Congress on the subject." ^ 
 
 In the opinion of the present writer this is the best explana- 
 tion of this exception to the common-law rule, to be found 
 in the books. 
 
 There are many other decisions which permit the testi- 
 mony of a party where the facts he is offered to prove are 
 such in their nature that no one but he would be likely to 
 have knowledge of them. Thus, where a deed or other 
 written instrument is shown to have once existed, its loss 
 may be proved by a party, in order to let in secondary 
 evidence of its contents.^ 
 
 And where the execution of an instrument is to be estab- 
 lished, a party may prove the death of a subscribing witness, 
 to the end that secondary evidence of his handwriting may be 
 let in.* So, also, he may prove notice to the adverse party 
 to produce the paper.^ 
 
 1 Citing 1 Greenl. Evid. §§ 348-350, 8 Id. 278 ; Page v. Page, 15 Id. 374, 
 and notes. 375 ; Meeker v, Jackson, 3 Yeatcs 
 
 2 United States ... Clarke, Otto (Pa.) 442; Smiley w. Dewey, 17 Ohio, 
 (U. S.) 41. 156; Blanton v. Miller, 1 Hayw. 
 
 2 Chamberlain ;;. Gorham, 20 Johns. (N. C.) 4. The case of Colema,n v. 
 
 (N.Y.) 144; Jackson v. Frier, 10 Id. Wolcott, 4 Day (Conn.) 388, to the 
 
 193; Tayloe v. Eiggs, 1 Pet. (U. S.) contrary, is overruled in Pitch «. 
 
 591, 596 ; Patterson v. Winn, 5 Id. 240, Bogue, 19 Conn. 285. But see Cotton 
 
 242 ; Eiggs v. Tayloe, 9 Wheat. (U. S.) v. Beasly, 2 Murph. (N. C.) 259. 
 
 486; DeXane W.Moore, 14 How. (U.S.) * Douglass v. Sanderson, 2 Dall. 
 
 253; Boyle D.Arledge,Hempst. (U.S.) 116. s. c, 1 Yeates (Pa.) 15; Jack- 
 
 620; Nichols u. White, 1 Cr. C. C. 58; son v. Davis, 5 Cow. (N.Y.) 123. S. 
 
 Taunton Bank v. Richardson, 5 Pick. P. Moore v. Maxwell, 18 Ark. 469. 
 
 (Mass.) 436, 442; Poignard v. Smith, ^ Siltzell c. Michael, 3 Watts & S. 
 
86 COMPETENCY. [CHAP. IV. 
 
 Following out this principle, in a bastardy case, the mother, 
 whether she be the complainant or not, may swear to facts 
 within her own exclusive knowledge ; ■* and in an action 
 against a town for an injury arising from a defect in a high- 
 way,^ or against a county for the value of property destroyed 
 by a mob,^ the plaintiff is a competent witness. So, also, the 
 party robbed is a competent witness in an action against 
 the hundred, under the statute of Winton ; * and in an action 
 of slander the plaintiff is competent, and if the words charged 
 are proved by her testimony to have been spoken in presence 
 of others, the jurj', if they believe her, may find a verdict 
 upon her testimony alone. ^ Parties are also competent to 
 prove or disprove usury. ^ 
 
 The second class of cases in which the oath in litem is ad- 
 mitted at common law, is where public necessity and expedi- 
 ency demand the party's testimony as essential to the due 
 administration of justice. Thus, a party to the record can give 
 evidence in his own favor, when no other can reasonably be 
 expected, or when otherwise there would be a failure of 
 justice.'' So, also, in cases of necessity, where a statute 
 can receive no execution, unless the party interested be a wit- 
 ness, there he miist be allowed to testify, for the statute must 
 not be rendered ineffectual by the impossibility of proof. ^ 
 
 § 28. Disinterested, Nominal, and Unnecessary Parties. — 
 The rule of exclusion being founded, as we have seen, upon 
 the interest of the witness rather than his being named upon 
 the record as a party, if he has no interest in the event, he 
 may testify.^ 
 
 Thus, a mere nominal plaintiff, whose name is on the 
 record as a naked trustee, and who is not liable for costs, 
 
 (Pa.) 329 ; Jordan v. Cooper, 3 S. & ' Larapley v. Scott, 24 Miss. 528. 
 K. (Pa.) 564. 8 United States v. Murpliy, 16 Pet. 
 
 1 Davis V. Salisbury, 1 Day (Conn.) (U. S.) 203. 
 
 278 ; Judson u. Blanchard, 4 Conn. " Robert v. Boynton, 30 Ga. 939 ; 
 
 557; Mariner v. Dyer, 2 Me. 172; Eeimsdyk u. Kane, 1 Gall. (U. S.) 630 ; 
 
 3)rowne v. Stimpson, 2 Mass. 441; Wooten u. Nail, 18 Ga. 609; Neal v. 
 
 Anonymous, 3 N. H. 135 ; State u. Lamar, Id. 746 ; Foster v. Leeper, 29 
 
 Coatney, 8 Yerg. (Tenn.) 210; Mather Ga. 294; Shcllenbarger v. Norris, 2 
 
 ,-. Clark, 2 Alk. (Vt.) 209. Ind. 285 ; Draper v. Vanhorn, 12 Ind. 
 
 2 Stover w. Bluehill, 51 Me. 439. 353; Barker v. Ayers, 5 Md. 202; 
 ■i County V. Leiddy, 10 Pa. St. 45. Block v. Chase, 15 Mo. 344 ; Jackson 
 * Bull. N.P. 187, 289. v. Barron, 37 N. II. 494; Saftord v. 
 '- Hess V. Fockler, 25 Iowa, 9. Lawrence, Barb. (N. Y.) 560; Wil- 
 Fredlander v. Strawn, 25 111. 219. son v. Allen, 1 Jones (N. C.) Ecj. 24. 
 
§ 29.] PARTIES TO THE EECORD. C7 
 
 is competent ; but in such case the real party in interest is 
 disqualified though not named on the record.^ So also a 
 person named in the process or petition, but not served witli 
 process or cited to appear, is not a party to the litigation so 
 as to disqualify him as a witness.^ 
 
 § 29. Parties Liable to Costs. — The interest in the event 
 which Avill disqualify a party to the record need not be a 
 direct interest in the subject-matter of the suit : a mere 
 liability for costs will exclude him.^ Thus, a liability for 
 costs will disqualify a master in chancery from being a 
 witness on his own behalf in a suit brought by him in his 
 official capacity.* The same is the case of trustees, guard- 
 ians, personal representatives, and corporate officers.^ In 
 such a case the legal plaintiff on the record is not a compe- 
 tent witness, even though the party for whose use the suit 
 is brought offers to deposit in court any sum which the court 
 may direct, to cover the liability of such plaintiff for costs ;^ 
 and conversely, the person for whose use a suit is brought, 
 being liable, by statute, for costs, if the suit fails, is not a 
 competent witness for the plaintiff; nor can he be rendered 
 competent, in such case, by his release of his interest in the 
 cause of action to the plaintiff.^ 
 
 § 80. The Rule in Courts of Equity. — The general rule is 
 that a party cannot be admitted to testify in his own favor 
 in chancery, any more than at law,^ unless an order of the 
 court for his examination be first obtained ; ^ if examined 
 without an order for sucli purpose, his testimony will be 
 
 1 Byerss v. Trustees &c., 33 Pa. St. Chalmers v. Chalmers, 4 Gill & J. 
 114; Prewett v. Marsh, 1 Stew. & P. (Md.)420. 
 
 (Ala.) 17; Duffiee v. Pennington, 1 li Owings r. Emery, 7 Gill (Md.) 405. 
 
 Ala. 506; Coopwood v. Poster, 20 ' Ellison y. Johnson, 7 Blackf. (Ind.) 
 
 Miss. 718; Sawyer w. Mitchell, 27 Mo. 217. As to the disqualification of a 
 
 510. witness not a party, by reason of 
 
 2 Taylor o. Hancock, 14 La. Ann. liability for costs, see infra, § 51. 
 693; Robinson i,. Frost, 14 Barb. 8 -vvebb v. Pitch, 1 Eoot (Conn.) 
 (N.Y.) 536; Conwell v. Smith, 4 Ind. 177; Livingston v. Bird, Id. 255 ; Lin- 
 369. gan v. Henderson, 1 Bland (Md.) 230 ; 
 
 3 Kennedy K. Evans, 31 III. 258; Foote d. Silsby,3 Blatchf. (U. S.) 507. 
 Walker v. McKnight, 15 B. Mon. (Ky.) Contra, Atlanta &c. B. E. Co. u. Hod- 
 467; Selby v. Clayton, 7 Gill (Md.) nett, 30 Ga. 669. 
 
 240; Foley v. Mason, 6 Md. 37; ^ Clagett v. Hall, 9 Gill & J. 
 
 Owings u. Emery, 7 Id. 405. (Md.) 80; Wheeler v. Emmerson, 2 
 
 * Gray D.Ottolenqui, 12 Rich. (S.C.) Blackf. (Ind.) 293; Second &c. Soc. 
 
 101. V. First &c. Soc, 14 N. H. 315; Pusey 
 
 6 1 Greenl. Ev. (14 ed.) § 347, n. (3) ; v. Wright, 31 Pa. St. 387. 
 
38 COMPETENCY. [CHAP. IV. 
 
 suppressed, if objected to promptly.^ But a mere nominal 
 or unnecessary party, devoid of interest,^ or against whom 
 tlie bill has been taken as confessed, and who has no inter- 
 est,3 could testify even before the passage of the enabling 
 statutes. 
 
 An exception to this rule, peculiar to courts of equity, is 
 that the ansiver of the defendant, so far as it is strictly 
 responsive to the bill, is evidence for as well as against the 
 defendant. The reason upon which this exception stands, 
 is this. The plaintiff calls upon the defendant to answer an 
 allegation he makes, and thereby admits tlie answer to be 
 evidence, and the answer becomes equal to the testimony 
 of any other single witness.* 
 
 § 31. Competency of One Party as a Witness for Another 
 Party. — In some jurisdictions it was held, before the 
 passage of the enabling statutes, that one of the parties to 
 an action might, if he was willing, testify for his adversary, 
 even against the consent of the other parties united in 
 interest with him ; but that he could not be compelled so 
 to do. The reasoning upon which this doctrine was based 
 was, that the privilege not to testify against himself was 
 personal to the party, and not shared by his associates, and 
 that his testimony being against his own interest, his oath in 
 court should be taken, at least as freely as his declarations 
 out of court, which, if against his interest, were admissible.^ 
 But the more prevalent, and it would seem more consistent, 
 opinion was that all the parties must consent before one of 
 them could be used as a witness ;'^ and even then he was not 
 always admitted, as we shall see further on. 
 
 This rule of exclusion had more particular application to 
 the admissibility of the testimony of one of several co-plain- 
 tiffs, which was rigidly excluded.'^ But it has been held that 
 
 1 Bogert V. Bogert, 2 Edw. (N. Y.) 377 ; Fenn v. Granger, 3 Campb. 177 ; 
 399. Worrall v. Jones, 7 Bing. 395. See a 
 
 2 Day V. Cummings, 19 Vt. 496. criticism of these cases in 1 Greenl. 
 
 3 Pingree w. Coffin, 12 Gray (Mass.) Ev. (14 ed.) § 354, n. (4), and the 
 288. additional cases there cited. 
 
 * Clarke w. Van Riemsdyk, 9 Cranch ^ Crazier v. Laughlin, 6 111. 347; 
 
 (U. S.) 153, 160. But it seems the Kennedy r. Niles, 14 Me. 54; Scott jj. 
 
 answer of an infant ox feme covert can- Lloyd, 12 Pet. (U. S.) 140 ; Bridges v. 
 
 not he read against the defendant. Armour, 5 How. (U. S.) 91. 
 
 1 Greenl. Ev. § 351, n. (2) [14 Ed.]. ' Servis v. Beatty, 32 Miss. 52 ; Eck- 
 
 ^Norden u. Williamson, 1 Taunt, ford i-. De Kay, 6 Paige (N. Y.) 565. 
 
§ 32.] PARTIES TO THE EECORD. 39 
 
 where the point to be proved is special damages to the sep- 
 arate property of a co-plaintiff, there is no interest which 
 will exclude the witness. ^ 
 
 § 32. Competency of Defendant for Co-defendant, generally. 
 — The result of the common-law rule excluding parties as 
 witnesses was, that in general, one co-defendant could not 
 be a witness for another ;2 especially where his testimony 
 would tend to benefit himself ;3 or where both he and the 
 defendant in whose favor he would testify, rely xipon the 
 same matters of defence, although by separate answers.* And 
 this is so even though he has confessed judgment, or suc- 
 ceeded in his defence.^ Thus a defendant in ejectment is 
 incompetent for a co-defendant,^ even after judgment in his 
 favor.'^ 
 
 In Alabama, however, he was admitted for his co-defendant 
 after the plaintiff had closed his evidence, the jury being 
 instructed not to consider his testimony either for or against 
 himself;^ and in Indiana, where one of two defendants ap- 
 pealed from a judgment of a justice of the peace rendered 
 against them jointly, the one not appealing was allowed to 
 testify for the other on the trial de novo in the appellate 
 court.3 In Missouri it was held that a defendant on the 
 record is not disqualified as a witness for his co-defendant 
 by that fact alone : he is competent to testify as to some 
 matters. When the witness is sworn, objections may be 
 taken to so much of his testimony as may be inadmissible.^'' 
 And in Wisconsin, a defence not affecting the liability of the 
 pleader's co-defendant may be proved by that co-defendant's 
 testimony, without notice to the plaintiff that such testimony 
 is to be relied on.^^ 
 
 § 33. in Actions on Contract. — Applying these 
 
 principles, it has been held that where a defendant has no 
 
 ^ Draper v. Vanhorn, 12 Ind. 353. * Chenowith v. Fielding, 2 Mete. 
 
 See also Little v. Hazzard, 5 Ilarr. (Ky.) 517. 
 
 (Del.) 291 ; Harris v. Harris, 25 Mo. ^ Noble v. Laley, 50 Pa. St. 281. 
 567. 6 Cambria Iron Co. v. Toombs, 48 Pa. 
 
 2 Ranking. Harper, 23 Mo. 579; St. 388; Merrill o. Gould, 16 N. H. 347. 
 Rice V. Morton, 19 Mo. 263 ; Callioun ' Helfenstein v. Leonard, 50 Pa. St. 
 
 V. Wright, 23 Tex. 522. 461. 
 
 SHotaling v. Cronise, 2 Cal. 60; 8 jlurtur d. Buford, 38 Ala. 243. 
 Easterly v. Bassignano, 20 Cal. 489; ^ Goodhue v. Palmer, 13 Ind. 457. 
 Anderson i-. Weaver, 17 Ind. 223; i" Alexander ;;. Shortridge, 33 Mo. 
 
 Vaughn v. Scade, 30 Mo. 600 ; Gould 349. 
 V. Beal, 26 Tex. 665. " Anderson v. Priudle, 11 Wis. 136. 
 
40 COMPETEKCY. [CHAr. IV. 
 
 separate defence in an action on a joint contract, a co-de- 
 fendant called as a witness could prove nothing that would 
 not innre to his own benefit as well as to the benefit of his 
 co-defendant ; as to such matters he is, therefore, interested, 
 and of course incompetent.^ His testimony must relate to 
 some matter in which he himself has no interest,^ in which 
 event he is competent.^ Thus a defendant is a competent 
 witness for his two co-defendants, to prove that they are 
 not his partners, and are not liable with him for the debt 
 sued on.* The competency of the witness in these cases is 
 to be determined by the relations to each other in which the 
 co-defendants have placed themselves by their contract, and 
 not by those relations, as parties to the action, which have 
 been involuntarily imposed on them by the act of the plain- 
 tiff.^ Thus, where one defendant files a cross-complaint 
 alleging interests adverse to those of his co-defendants in 
 the original action, he may testify in regard to such matters.^ 
 
 § 34. in Actions of Tort. — Except in the case 
 
 of a defaulted defendant,'' there seems to be but little differ- 
 ence, if any, between the competency of a defendant as a 
 witness for a co-defendant in actions of tort and actions of 
 contract. Where the action is in tort against two defendants, 
 neither is a competent witness for the other, Avhere the evi- 
 dence of each one must avail himself as much as the other.^ 
 So held of co-defendants charged with a joint conversion of 
 property ; 8 otherwise in the case of a joint wrongful detention 
 of personal property,!" and in the case of a joint trespass.^! 
 Again, in an action for a joint libel, it has been held that 
 neither defendant could testify for the other. ^^ And even 
 though the proposed witness has not been served with pro- 
 cess, he is still incompetent.^^ 
 
 1 King V. Lowry, 20 Barb. (N. Y.) 11 N. Y. 128; Eno v- "Del Veccliio, 4 
 &.32. Duer (N. Y.) 53; Brown v. Marsh, 8 
 
 2 Frost r. Hanford, 1 E. D. Smith Vt. 312; Paine v. Tildcn, 20 Vt. 554. 
 (N. Y.) 540. 5) Munson v. Hegeman, 10 Barh. 
 
 3 Ford u. David, lBosw.(N.Y.) 569. (N". Y.) 112. 
 
 * Culbertson v. Holden, 8 Bush i" Gardner w.Einley, 10 Barb. (N.Y.) 
 
 (Ky.) 161. 317. 
 
 ^ Ladue i. Van Vechten, 8 Barb. ^^ Johnsons. Brown, 1 Wash. (Va.) 
 
 (N. Y.) 664. 187; Marsh c. Berry, 7 Cow. (N. Y.) 
 
 6 Nye V. Lowry, 82 Ind. 316. 344. 
 
 ' See infra, §§38, 39. ^^ F,„.shee v. Abrams, 2 Iowa, 571. 
 
 8 Johnson v. Henderson, 3 Cal. 368. " Gates v. Nash, 6 Cal. 102 ; Dodge 
 
 But see to the contrary, Beal v. Finch, u. Averill, 5 How. (N. Y.) Pr. 8. 
 
§ 36.J PARTIES TO THE RECORD. 41 
 
 § 35. ill Suits in Equity. — 111 chancery practice tlie 
 
 rule of exclusion as respects co-defendants is not so strict us 
 at law. Thus a defendant who has no interest,^ or who is 
 only a formal party, or testifies against his own interest,^ or 
 who might still be liable for debts and costs, though the de- 
 fendant, for whom he was offered as a witness, maintained 
 his defence,^ is a competent witness for his co-defendants. 
 Even a defendant who is charged with fraud, but against 
 whom nothing specific is prayed, may be a witness for his 
 co-defendant.* 
 
 In such cases, however, an order of the court must be ob- 
 tained for the examination of the witness.^ The order is 
 gejierally grantable as of course on a showing of the mateii- 
 ality and lack of interest of the witness in respect of the 
 matters as to which he will testify, the order being made 
 subject to all just exceptions.^ 
 
 If the proposed witness be interested, he cannot testify 
 even in favor of a co-defendant who has no interest in defeat- 
 ing the plaintiff's claimJ And where one defendant answers, 
 and the other interposes a plea which is put in issue, and 
 the defendant answering is examined as a witness for 
 his co-defendant, his testimony must be restricted to mat- 
 ters in proof of the plea in which he is not himself in- 
 terested.^ 
 
 § 36. Competency of Defendant for Plaintiff. — Under the 
 common-law rule we are now discussing, a defendant has 
 been considered an incompetent witness for the plaintiff even 
 in chancery eases ;^ but where he is made a defendant for 
 mere form's sake and no decree is prayed against him, the 
 
 1 Kirk V. Hodgson, 2 Johns. (N. Y.) a case, see Pope v. Andrews, 1 Sm. & 
 Ch. 550; Bradshaw v. Combs, 102 111. M. (Miss.) Ch. 1.35; Ormsby v. Bake- 
 428; Williams v. iVIaitland, 1 Ired. well, 7 Ohio, Pt. I. 98; Kennedy v. 
 (N. C.) Eq. 92; Wilder v. Mann, 5 Evans, 31111. 258; Uearmond r. Dear- 
 Jones (N. C.) Eq. 06; Wright v. mond, 12 Ind. 455. 
 Wright, 2 McCord (S. C.) Cli. 185; ^ gen „. Jasper, 2 Ired. (N. C.) Eq. 
 Etheredge v. Partain, 10 Rich. (S. C.) 597. 
 Eq. 207. " 2 Dan. Ch. Pr. (Perk. Ed.) 1035, 
 
 ii Burns u. Taylor, 23 Ala. 255 ; Kirk n.; Id. 10-13; Ashton u. Parker, 14 
 
 u. Hodgson, supra. Sim. 632. 
 
 s Craddock v. Thornton, 11 B. Mon. ' Clarke v. Wyburn, 12 Jur. 613. 
 
 (Ky.) 100. * Emerson v. Atwater, 7 Mich. 12. 
 
 ■• M'Donaldi'. Neilson,2Cow. (N. Y.) -i Clarke r. Van Riemsdyk, 9 Cranch 
 
 139. See Wldpplec. Lansing, 3 Johns. (U. S.) 153; Collins ,,. Creditors, 18 
 
 (N. Y.) Ch. 612. As to wliether his lia- La. Ann. 235; Thomas c. Graham, 
 
 bility for costs will exclude him in such Walk. (Mich.) 117. 
 
42 COMPETENCY. [CHAP. IV. 
 
 complainant may examine him ;^ and in Kentucky, he could 
 be called by the complainant, even though a necessary party, 
 provided he would not be affected by the decree against his 
 co-defendant, and did not swear in favor of his own interest.^ 
 
 Again, a co-defendant upon whom process was not served, 
 may be a competent witness for the plaintiff to prove par- 
 ticular facts material to the issue ; but not to establish the 
 fact of a partnership between himself and his co-defeud- 
 ants.^ 
 
 In Pennsylvania, it is held that the defendant in an exe- 
 cution, under which goods previously sold to others are 
 levied upon as his property, is a competent witness for the 
 claimants, in an interpleader issue, to determine the right to 
 the property levied upon;* and even in indebitatus assumpsit 
 he is competent, if willing to testify ; ^ so also, a joint tres- 
 passer may testify for the plaintiff.^ And in South Carolina, 
 it was held that one of two defendants, consenting to be 
 sworn, though objected to by the other defendant, is a com- 
 petent witness for the plaintiff.'^ So, also, when a witness 
 ultimately liable to the defendant is examined by him, 
 previous to his answering the bill, and the witness is after- 
 wards made a party defendant, his deposition may be read 
 by the complainant, if the facts to entitle the complainant to 
 the relief sought are admitted by the answer of the new 
 party. Under such circumstances, he is a competent witness 
 for the complainant, and his deposition will not be rejected 
 because taken without the order of the court.^ 
 
 § 37. Competency of Plaintiff for Defendant. — The rule of 
 the common law as most frequently applied was, that 
 although a defendant may be examined as a witness by the 
 complainant, and where he is not interested in the matter as to 
 which it is proposed to examine him, he may also be examined 
 as a witness by a co-defendant, yet a co-complainant cannot 
 be examined as a witness for the other complainant, nor can 
 he be examined as a witness by the defendant,^ even though 
 
 ' Ragan v. Echols, 5 Ga. 71 ; Clen- ^ London &c. Soc. v. Hagarstown &c. 
 
 daniel v. Hastings, 5 Harr. (Del.) 408. Bank, 36 Pa. St. 498. 
 
 '■^ Williams r. Beard, 3 Dana (Ky.) " Kennedy ij.Philipy, 13 Pa. St. 408. 
 
 158. ' Corrie v. Calder, 6 Kicli. (S. C.) 
 
 s Heckert v. Fegely, 6 Watts & S. 198. 
 
 (Pa.) 1.39. 8 Waller v. Gibbs, 10 Ala. 131. 
 
 * AUentown Bank v. Beck, 49 Pa. » Servis v. Beatty, 32 Miss. 52. 
 St. 394. 
 
§ 38.] PAETIES TO THE EECOED. 43 
 
 ■willing to testify.-^ But a mere nominal plaintiff was deemed 
 a competent witness for the defendant, if willing; if un- 
 willing, he could not be compelled to testify.^ 
 
 § 38. Effect of Default, Nolle Prosequi or Verdict, in Actions 
 on Contract. — So far as we have examined into the compe- 
 tency of co-defendants as witnesses, one for the other, we have 
 regarded them as still in the same relative situation as at the 
 beginning of the suit; but quite often one of several 
 co-defendants, during the progress of the litigation, is placed 
 in a position quite different from that occupied by the others, 
 in consequence of a judgment by default, a nolle prosequi or 
 a separate verdict on the trial : in such cases a different rule 
 prevails. And that rule (speaking, now, generally of all 
 classes of civil actions) is, that where, as respects the par- 
 ticular defendant offered as a Avitness for one or more of his 
 associates, the suit is at an end; his interest therein, so far 
 as the others are concerned, blotted out; his own position 
 and liability finally and definitely determined — he is a com- 
 petent witness for either or all of the other defendants.^ 
 But the common-law courts were for some time indisposed to 
 adopt this rule in actions on contracts, on the theory that the 
 defaulted defendant (the contract sued upon being laid 
 jointly, could be held liable only in case of a verdict against 
 his co-defendants ; and consequently he was an interested 
 party, and as such inadmissible as a witness.* Thus, it was 
 held that in assumpsit, one co-defendant, though .defaulted, 
 could not testify for another;^ nor against his co-defendant.^ 
 Accordingly it has been held that where one defendant sets 
 up several matters of defence, some of which are personal to 
 himself, and others going to show that the plaintiff has no 
 cause of action against any of the defendants, one who is 
 
 ' Kennedy v. Niles, 14 Me. 54. 119 : Mills v. Lee, 4 Hill (N. Y.) 549 ; 
 
 2Prewitt V. Marsh, 1 Stew. & P. Thornton w. Blaisdell, 37 Me. 190; Vi- 
 
 (Ala.) 17; Duffee v. Pennington, 1 nal v. Burrill, 18 Pick. (Mass.) 29; 
 
 Ala. 506; Coopwood v. Foster, 20 King r. Lowry, 20 Barb. (N. Y.) 532 ; 
 
 Miss. 718. Contra, Nalle u. Gates, Bully. Strong, 8 Mete. (Mass.) 8; Wal- 
 
 20 Tex. 315 ; but in that case his ton v. Tomlin, 1 Ired. (N. C.) L. 593. 
 
 declarations were held admissible. * Kimball v. Lamson, 2 Vt. 138 ; 
 
 8 Talmage v. Burlingame, 9 Pa. St. Pillsbury v. Nelson, 2 N. H. 283. 
 
 21 ; Manchester Bank u. Moore, 19 ^ Columbian Manuf. Co. v. Dutch, 
 
 N. H. 564. 13 Pick. (Mass.) 125. See also Bohun 
 
 * Mant V. Mainwaring, 8 Taunt. 1-39; c. Taylor, 6 Cow. (N. Y.) 313 ; Green 
 
 Brown v. Brown, 4 Id. 752 ; Schermer- v. Sutton, 2 M. & Bob. 269. But see 
 
 horn V. Schermerhorn, 1 Wend. (N. Y.) irfra, § 37. 
 
44 COMPETENCY. [CHAP. IV. 
 
 defaulted cannot be a witness to sustain any of the matters 
 of defence.^ Nor was one defendant, though defaulted, per- 
 mitted to testify that he was authorized bj' his co-defendant 
 to sign a note, as he would thereby reduce the amount of 
 a judgment against himself. ^ 
 
 On the other hand, it was held in Alabama, in an action 
 against several partners, one of whom was defaulted, that the 
 latter could testify as to the existence of a partnership 
 between himself and his co-defendants.^ And other early 
 cases are found which admit the evidence of the defaulted 
 defendant as to matters in which he can have no interest.* 
 
 Upon the same principle, one of several joint defendants, 
 when discharged by the judgment of the court, becomes a 
 competent witness for the other defendants;^ and if there is 
 an entire want of evidence against one of several defendants, 
 whether sued in tort or contract, the court may direct the 
 jury to find a verdict for him, and he may then be used as a 
 witness.^ But the discharge in bankruptcy of one of several 
 defendants, after suit brought, will not, at common law, 
 reader him competent to testify in the suit" 
 
 § 39. in Actions of Tort. — In actions 071 torts, the 
 
 facts being that there is no contribution between wrongdoers, 
 
 and that such actions ai-e in their nature several as well as 
 
 joint, the rule of the common law was not applied as rigidly 
 
 as in actions on contracts. Tlie rule pretty uniformly applied 
 
 in tliese actions was to admit a defendant who had suffered a 
 
 default as a witness for his fellow-defendants, his fate being 
 
 fixed and determined bj' the judgment against him.^ So, if 
 
 in an action of trespass against several, one is acquitted, he 
 
 may be a witness for the others in a petition for a new trial, 
 
 ^ Bowman v. Noyes, 12 N. H. 302 ; ' Given v. Albert, 5 Watts & S. 
 
 George v. Sargent, Id. 313. (Pa.) SS.'S ; Irwin r. Shumaker, 4 Pa. 
 
 '^ Washburn v. Alden, 5 Cal. 463. St. 199 ; Raven v. Dunning, 3 Esp. 25 ; 
 
 3 Scott V. Jones, 5 Ala. 694. Emmet v. Butler, 7 Taunt. 599 ; s. c, 
 
 4 Upton c. Adams, 27 Ind. 432 ; 1 SIoo. 3.32. Contra,, Bate v. Russell, 
 Blake v. Ladd, 10 N. H. 190 ; Essex 1 JIoo. & M. -332. And see Bradlee v. 
 Bank r. Rix, Id. 201. Neal, 10 Pick. (Mass.) 501 ; Vinal u. 
 
 s Barnes v. Barber, C 111. 401. Burrill, 18 Id. 29. 
 
 6 Campbell v. Hood, Mo. 211; 'Ward r. Hayden, 2 Esp. 552; 
 
 Prettyman u. Dean, 2 ITarr. (Del.) Ilawkeswortli v. Showier, 12 Mees. & 
 
 494 ; Brown v. Burrus, 8 Mo. 26 ; W. 48 ; Cliapman v. Graves, 2 Campb. 
 
 Over V. Blackstone, 8 Watts & S. 334; Commonwealth v. Marsh, 10 
 
 (Pa.) 71. The rule is otherwise, it Pick. (Mass.) 57. 
 seems, in assumpsit. Berry v. Ste- 
 vens, 71 Me. 503. 
 
§ 40. J PARTIES TO THE RECORD. 45 
 
 notwithstanding the plaintiff has brought a petition against 
 him.i But if in default, and no assessment of damages has 
 been had against him, he has been held incompetent.^ And 
 he has been considered incompetent even though called to 
 testify as to matters not connected with the question of dam- 
 ages.^ So, also, in a complaint for flowage, under an early- 
 statute in Maine, one of two respondents, after being de- 
 faulted, was held incompetent as a witness for the other.* 
 
 §40. Effect of Misjoinder of Parties Defendant. — Where 
 one wlio is a material witness for the defendants is joined 
 with them by the plaintiff for the purpose of depriving them 
 of the benefit of his testimony, this is a fraud upon them., 
 and the court, in the exercise of its discretion in the prem- 
 ises,*^ will generally direct the jury to acquit the defendant 
 so joined, and then, the cause being ended as to him, he be- 
 comes a competent witness for the other defendants. But it 
 is only where the plaintiff offers no evidence whatever 
 against such defendant that his competency can be thus re- 
 stored ; foi', if any evidence is offered against him, though in 
 the opinion of the presiding judge not enough to charge him, 
 it cannot be claimed that he was made a defendant through 
 the artifice and fraud of the plaintiff," and he cannot be per- 
 mitted to testify until the jury have passed upon Ids guilt or 
 innocence.'' The better opinion is that in actions of tort, 
 when the plaintiff rests his case, if there is no evidence what- 
 ever against one of the defendants, and there seems to be no 
 probability that the continuance of the trial Avill disclose any, 
 the defendant so situated should be instantly acquitted.^ 
 
 It has beetr held that a person named in the writ as a 
 defendant, if not served with process, is not a party to the 
 
 1 Wolfu.Church,2Root(Conn.)420. E. D. Smith (N. Y.) 122. Contra, 
 
 2 Chase v. Lovering, 27 N. H. 295. State v. Carter, Coxe (N. J.) 1. See 
 
 3 Gcrrish v. Cummings, 4 Gush, also Eckford v. De Kay, 6 Paige 
 (Mass.) 391. (N. Y.) 565. 
 
 4 Wood V. Kelley, 30 Me. 47. '' Brown ;■. Howard, 14 Johns. (N. Y.) 
 ^ Brotherton v. Livingston, 3 Watts 119, 122 ; Van Deusen v. Van Slyck, 
 
 &■ S. (Pa.) 334. supra. 
 
 6 Wakeley v. Hart, G Binn. (Pa.) « child v. Chamberlain, 6 Car. & P. 
 
 316 ; Barney v. Cutler, 1 Root 213 ; Cochran v. Ammon, 16 111. 316 ; 
 
 (Conn.) 489; State v. Shaw, Id. 134; Beasley v. Bradley, 2 Swan (Tenn.) 
 
 Prairie Rose v. Cross, 34 Mo. 199; 180. As to the application of this 
 
 Brown v. Howard, 14 Johns. (N. Y.) rule in actions upon contracts, see 
 
 119; Van Deusen v. Van Slyck, 15 Bate v. Russell, 1 Moo. & M. 332; 
 
 Id. 223. S. P. Keteltas <;. Penfold, 4 Emmet v. Butler, 7 Taunt. 599. 
 
46 COMPETENCY. [CIIAP. IV. 
 
 action, and may be examined as a witness for tlic defendant 
 served ;i especiallj^ if lie be released from contribution.^ But, 
 on the other hand, it has been held that wliere a joint judg- 
 ment against two defendants is rendered on the confession of 
 one, the other not having been served with process, in a pro- 
 ceeding founded on such judgment to charge him not served 
 with process, the other defendant is not a competent 
 witness.^ 
 
 §41. Witness made Party by Mistake. — Where, through 
 mistake, and not by intention, the plaintiff in an action of 
 tort joins as a defendant one of his own intended witnesses, 
 the court will, on motion, even after issue joined, order his 
 name stricken from the record in order to rehabilitate him as 
 a witness in the cause ;* and if the case be a criminal prose- 
 cution, a nolle prosequi will be ordered to be entered for the 
 same purpose.^ So, also, in ejectment, if one of the parties 
 joined as defendant is a material witness for another defend- 
 ant, he may suffer default, and thus become competent; but 
 if he plead, by which act he will admit himself tenant in 
 possession, his name will not be stricken out on motion,^ 
 
 § 42. Common-Law Rule as to Defendants in Criminal Cases. 
 — In the absence of statutory modifications, the rules of the 
 common law respecting the competency of parties as wit- 
 nesses are virtually the same in criminal as in civil cases. 
 In a criminal prosecution the State is the party plaintiff upon 
 the record, though the prosecution is in most instances set 
 on foot at the instigation of a private person, who is called 
 the prosecutor. With regard to the competency of the prose- 
 cutor, we will speak hereafter, his disqualification, where it 
 existed at common law, being based upon his indirect interest 
 in the event of the prosecution, rather than upon his position 
 as a party to the record.'' In this place we will consider the 
 
 1 Purvianoe v. Dryden, 3 Serg. & R. liams, Cas. t. Hardw. 123 ; Cotton < . 
 (Pa.) 402; Stockham v. Jones, 10 Luttrell, 1 Atk. 452; Wakely d. Hart, 
 Johns. (N. Y.) 21; Clark v. Malony, 6 Binn. (Pa.) 316; Curtis v. Graham, 
 3 Harr. (Del,) 68 ; Entriken v. Brown, 12 Mart. (La.) 289. 
 
 32 Pa. St. 364 ; Baugher v. Culler, 12 i Bull. N. P. 285 ; Berrington v. 
 Md. 6. Fortesque, Cas. t. Hardw. 162, 163. 
 
 2 Steigers v. Gross, 7 Mo. 261 ; Gibbs '' Ibid. 
 
 V.Bryant, 1 Pick. (Mass.) 118. To the i^ Ibid. But see Bull. N. P. 286; 
 
 contrary, Parke i,. Bird, 3 Pa. St. Mash v. Smith, 1 Car. & P. 577 ; Kim- 
 
 360. ball V. Thompson, 4 Cush. (Mass.) 441 ; 
 
 ' Oakley v. Aspinwall, 2 Sandf. Reeves v. Matthews, 17 Ga. 449. 
 
 (N. Y.) 7. See also Lloyd v. Wil- ' See infra, § 75. 
 
§ 42.] PARTIES TO THE EECOED. 47 
 
 competency o£ a defendant, at common law, as a witness on 
 Lis own tiial for a criminal offence. And in this connection 
 it may be said that a sole defendant in a criminal case could 
 not, at common law, testify at all :^ it was only where two or 
 more were jointly charged that one of them, in certain cases, 
 was permitted to become a witness for the others, or for the 
 prosecution, as the case might be.^ Where the prosecution 
 finds it expedient to call one of two or more jointly indicted 
 defendants as a witness against the others, several courses 
 are open in order to discharge him from the record, which 
 must in all cases be done to render him competent.^ This 
 may be done : (1) by the'entry of a nolle prosequi.^ (2) By 
 a verdict of acquittal where no evidence whatever has been 
 given against the proposed witness, in which event he may 
 be acquitted at the request of a co-defendant, and examined 
 as a witness for the latter.^ (3) By a verdict of acquittal 
 rendered at the request of the prosecution, where such evi- 
 dence as there is in the case against the defendant whose 
 testimony is wanted, is not deemed sufficient to convict him. 
 In this case the prosecution alone can ask an acquittal ;^ but 
 his case having been submitted to the jury who find him not 
 guilty, he should then be permitted to testify for his fellow- 
 defendants.^ (4) The same effect is produced where one of 
 two or more persons jointly indicted submits and pleads 
 guilty, and judgment is pronounced against him ; for as to 
 him, the prosecution is then at an end;^ but he will not be 
 
 1 Whelchell v. State, 23 Ind. 89 ; also State v. West, 69 Mo. 401 ; Allen 
 Harwell o. State, 10 Lea (Tenn.) f. State, 10 Ohio St. 287. 
 
 544. '' United States v. Davidson, 4 
 
 2 As to the competency of a sole de- Crancli, C. C. 576. See also Warfield 
 fendant by statute, see infra, Chap. v. State, 35 Tex. 736; United States 
 IX. V. Fenwick, 4 Cranch, C. 0. 676 ; State 
 
 5 Lemasters v. State, 10 Ind. 391 ; v. Blannerhassett, 1 Miss. 7 ; State t. 
 
 United States v. Clements, 3 Hughes Roberts, 15 Mo. 28 ; PennsylTania u. 
 
 (U. S.) 509; Moss v. State, 17 Ark. Leach, Add. (Pa.) 352. 
 
 327 ; Ballard v. Noaks, 2 Ark. 45 ; '^ Rex ;,•. Rowland, Ry. & M. 401 ; 
 
 Adwell ('. Commonwealth, 17 B. Mon. compare Pennsylvania v. Leach, Add. 
 
 (Ky.) 810; State v. Young, 39 N. H. (Pa.) 352. 
 
 283 ; People v. Bill, 10 Johns. (N. Y.) ' Fitzgerald v. State, 14 Mo. 413. 
 
 95; People u. Donnelly, 2 Park. (N. Y.) ' Kex v. Fletcher, 1 Str. 633; Reg. 
 
 Cr. 182; State u. Mills, 2 Dev. (N. C.) v. Lyons, 9 Car. & P. 555; Reg. v. 
 
 L. 420; Latshaw v. Territory, 1 Oreg. Williams, 8 Car. & P. 284; State ^■. 
 
 140 ; Shay v. Commonwealth, 30 Pa. Jones, 51 Me. 125 ; Commonwealth v. 
 
 St. ,305. Smith, 12 Mete. (Mass.) 238; Com- 
 
 ^ Bull. N.. P. 285; Cas. t. Hardw. monwealth d. Eastman, 1 Cush. (Mass.) 
 
 163 ; State v. Oiump, 10 Mo. 385. See 189. 
 
48 COMPETENCY. [CHAr. IV. 
 
 admitted on liis plea of guilty, unless judgment be actually 
 rendered against him ; for until then he is still a party to tlie 
 record.^ A suspension of sentence will ]iot qualify him.^ 
 So, where two were jointly indicted for uttering a forged 
 note, and the trial of one was postponed, it was held that he 
 could not be called as a witness for the other.^ 
 
 This rule of the common law is applicable to aecessoiies as 
 well as joint principals, where the indictment is joint.* 
 
 § 43. Effect of Separate Indictments, or Separate Trials. 
 — ^The rule was pretty well settled at common law, that 
 where two or more persons were separately indicted for an 
 offence in which all were implicated, either of them could be 
 a Avitness for either of the others, on his separate trial;'' and 
 he might testify for the prosecution in such a case.^ 
 
 In the case of the separate trial of two or more persons 
 jointly indicted, the authorities are not harmonious, some of 
 them holding one of them competent for the prosecution;" 
 others permitting him to testify for his co-defendant,^ and 
 still others denying a defendant so situated the right to 
 testify at all upon the separate trial of one united with him 
 
 1 Henderson v. State, 70 Ala. 23. " Tlio King v. Moore, Jeff. (Va.) 8 ; 
 
 2 State V. Queen, 05 N. C. 404 ; State Allison !•. State, 14 Tex. App. 402. 
 
 V. Bruner, Id. 499. See also Keg. v. ' See Noyes i. State. 12 Vr. (N. J.) 
 
 Hinks, 1 Den. C. C. 84. 418 ; Carroll v. State, 5 Neb. 31 ; Leo 
 
 8 Commonwealth v. Marsh, 10 Pick. v. State, 51 Miss. 566 ; State v. Bricn, 
 
 (Mass.) 57. 3 Vr. (N. J.) 414; Marler v. State, C7 
 
 i State V. Dunlop, 65 N". C. 288 ; Col- Ala. 55. 
 
 lier V. State, 20 Ark. 36. In Georgia, ^ Marshall v. State, 8 Ind. 498 ; Sloan 
 
 however, it was held that an accessory, i'. State, 9 Ind. 565 ; Hunt v. State, 10 
 
 joined in an indictment with the prin- Ind. 69 ; People v. Newberry, 20 Cal. 
 
 cipal, may be called to testify for the 439; Jones v. State, 1 Ga. 610; George 
 
 State, but not for the principal. State c. State, 39 Miss. 570 ; Lazier v. Com- 
 
 V. Calvin, R. JI. Charlt. (Ga ) 151. monwealth, 10 Gratt. (Va.) 708; State 
 
 * United States v. Hunter, 1 Cranch, ,,. Spencer, 15 Ind. 249 ; State v. Stew- 
 
 C. C. 446; United States v. Hanway, art, 51 Iowa, 312; Marler v. State, 07 
 
 2 Wall. Jr. (U. S.) 139; McKenzie v. Ala. 55; Poteete v. State, 2 Leg. Rep. 
 
 State, 24 Ark. 0.36; Lucre v. State, 7 (U. S.) 151 ; s. c, 9 Baxt. (Tenn.) 201. 
 
 Baxt. (Tenn.) 148. In United States And it has been lield to bo reversible 
 
 V. Hunter, supra, the witness was ad- error, as indicating the opniion of the 
 
 niitted although on trial at the same cotirt on the facts, to charge that the 
 
 time with the other defendants, and very fact that the witness is included 
 
 before the same jury. In Texas, how- in the same indictment will impair his 
 
 ever, it is held that one indicted sei)a- testimony, and that the same should 
 
 rately as a receiver cannot testify on not be placed on the same plane or 
 
 the separate trial of the person charged footing with that of a witness of nn- 
 
 with the theft. Crutchfield v. State, 7 doubted character who is disinter- 
 
 Tex. App. 65. ested. State v. Jenkins, 85 N. C. 544. 
 
§ 44.J PARTIES TO THE liECOnD. 49 
 
 in the same indictment,^ lanless he has been previously tried 
 and acquitted.^ 
 
 § 44. Effect of examining Adverse Party as a 'Witness. 
 — The eiifect of calling one's adversary, at common law, was 
 to render him a competent witness for all purposes ;3 even to 
 testify against the party calling him, in a subsequent trial or 
 proceeding in the same cause.* And it was held in an early 
 case that if a complainant chooses to examine one of two defen- 
 dants as a witness, on the trial of the cause, he cannot have a 
 decree against him ; and if, from the nature of the case, that 
 defendant would be primarily liable to the complainant, and 
 the other defendant liable only in a secondary degree, the 
 complainant cannot have a decree against either;^ but statu- 
 tory changes in respect of the competency of parties as wit- 
 nesses have, in most jurisdictions, rendered manj' of the cases 
 we have been examinijig of little other than historical 
 value.^ 
 
 § 45. Competency of Judges and Arbitrators. — While the 
 judge or referee before whom a cause is tried is not, strictly 
 speaking, a party thereto, still his intimate connection with the 
 litigation is universally considered to render him an incompe- , 
 tent witness in that cause. If he sits alone, he cannot be 
 sworn at all; and if he be one of several judges, he ought not 
 to be, unless he leaves the bench during the trial." In such 
 cases the maxim that "no one shall be both judge and witness 
 in the same cause " prevails, and it is even doubtful whether 
 he can testify from his knowledge of common notoriety.^ 
 
 Accordingly it has been held that a judge cannot be a wit- 
 ness as to matters which transjjii'ed before him on the trial 
 
 1 People !). Bill, 10 Johns. (N. Y. ) -Carpenter v. Crane, 5 Blackf. 
 
 95; Collier !i. State, 20 Ark. 36; State (Ind.) 110; Warfield v. State, 35 
 
 V. NasJi, 7 Iowa, 347 ; State v. Dunlop, Tex. 736. 
 
 65 N. C. 288 ; Staup v. Commonwealth, ^ Bennett r. AVillianis, 57 Pa. St. 404. 
 
 74 Pa. St. 458; Kehoe c. Common- * Forrester r. Torrcncc, 64 Pa. St. 29. 
 
 wealth, 85 Id. 126; Brown u. State, ^^ Ragan v. Echols, 5 Ga. 71. See 
 
 24 Ark. 620 ; State v. Dumphey, 4 Fulton Bank v. New York &c. Canal, 
 
 Minn. 438; Baker v. United States, 1 4 Paige (N. Y.) 127. 
 
 Id. 207 ; State v. Edwards, 19 Mo. " Infra, Chap. VIII. 
 
 674; People v. Williams, 19 Wend. ' Eoss u.Buhler, 2 Mart. (La.) n. .s. 
 
 (N. Y.) 377; State v. Martin, 74 Mo. 313; Tait.Ev. 432; Morss v. Morss, 4 
 
 547 ; Putter v. State, 4 Tex. App. 57 ; Law Ilcp. k. s. 611 ; People v. Miller, 
 
 Crutchfield v. State, 7 Tex. App. 65 ; 2 Park. (N. Y.) Cr. 197 [h.]. 
 
 s.c, 3 Tex. L.J. 169. Compare Bootlie * 1 Greenl. Ev. (14th ed.) § 304, and 
 
 v. State, 4 Tex. App. 202. note. 
 
50 COMPETENCY. [CHAP. IV. 
 
 of another cause,^ unless such matters were foreign and col- 
 lateral to the issue on trial.^ 
 
 So, also, except in cases of gross fraud, an arbitrator cannot 
 be called as a witness to disclose the grounds of his award ; ^ 
 or to prove his own misconduct ; * but he can testify to the 
 time when, and the circumstances in which, he made his 
 award 5*^ or show a mistake in it;^ or that any particular 
 subject-matter was not taken into consideration by the arbi- 
 trators;'' and his testimony is competent to show that no 
 final award was made, and that, although he had signed it, 
 yet, subsequently discovering a mistake therein, he never 
 delivered it.^ So, also, one agreed upon as an arbitrator, 
 but who did not act as such, is competent ;^ and where the 
 award is made by an umpire, it is held that one of the origi- 
 nal arbitrators is competent to impeach it-^" 
 
 1 Reg. V. Gazard, 8 Car. & P. 595. ^ Pulliam v. Pensoneau, 33 111. 375. 
 
 2 Eex u. Earl of Thanet, 27 How. St. ' Mayor &o.d. Butler,lBarb. (N.Y.) 
 Tr. 847. 325. 
 
 8 1 Story, Eq. PI. 458, n. (1); 2 B shuHe „. Hennessy, 40 Iowa, 352. 
 
 Story, Eq. Jur. 680 ; Anonymous, 3 * McFadden „. O'Donnell, 18 Cal. 
 
 Atk. 644 ; Johnson v. Durant, 4 Car. 160. 
 
 & P. 327. 1" Mayor &c. w. Butler, 1 Barb. (N. Y.) 
 
 4 Claycomb v. Butler, 36 111. 100. 325. 
 
 6 Woodbury i\ Nortliy, 3 Me. 85. 
 
CHAPTER V. 
 
 COMMON-LAW RULE AS TO PERSONS INTERESTED IN THE 
 
 EVENT. 
 
 § 46. The General Eule excluding them. 
 
 § 47. The Scope and Limits of the Rule. 
 
 § 48. Operation of the Rule as to Witnesses whose Interest is balanced. 
 
 § 49. or preponderates against the Party calling them. 
 
 § 50. or who will testify against Interest. 
 
 § 51. Witness Liable for Costs. 
 
 § 46. The General Rule excluding them. — -In England, prior 
 to the passage of Lord Denman's act,i and in this country up 
 to the times of the passage of the various enabling acts here- 
 after to be considered,^ it was a general rule of the common 
 law that direct and positive interest in the event of a cause, 
 to however small a degree, rendered a witness incompetent 
 to testifj- in that cause.^ This rule was founded upon the 
 supposed want of impartiality in the interested witness, and 
 in his consequent temptation to commit perjury. But even 
 in those jurisdictions where the rule was most inflexibly ap- 
 plied, the interest which would disqualify was required to 
 be a certain and direct interest, and not merely a contingent 
 or a consequential one.* Again, the interest was required to 
 be in the event of the suit : an interest in the question invol- 
 
 1 6 & 7 Vict. c. 85. V. Pearson, 1 Mass. 104; Sliirk d. Van- 
 
 2 Infra, Chap. VIIL neman, 3 Yeates (Pa.) 190; Powler v. 
 
 3 Reece w. Johnson, 1 Ilempst. (U.S.) Collins, 2 Root (Conn.) 231; Evans v. 
 82;Beanw.Pearsall,12Ala.592;Athey Hettick, 7 Wheat. (U. S.) 453; Nass 
 V. McHenry.B B. Mon. (Ky ) 50; Neth- v. Vanswearinger, 7 Serg. & R. (Pa.) 
 erton v. Robert, 3 Hayw. (Tenn.) 29; 192; Gould v. James, 6 Cow. (N. Y.) 
 Revere v. Leonard, 1 Mass. 93; Bliss 369; Hoyt u. Wildfire, 3 Johns. (N. Y.) 
 V. Thompson, 4 Id. 488 ; Common- 518 ; Burton v. Hinde, 5 T. R. 174 ; 
 wealth V. Snell, 3 Id. 82 ; Page v. Doe v. Tooth, 3 Younge & J. 19. 
 Weeks, 13 Id. 199; Phelps v. Win- « Ely d. Forward, 7 Mass. 25; Phil- 
 chell, 1 Day (Conn.) 269; Fairchild lips w. Bridge, 11 Id. 242; Worcester 
 V. Beach, Id. 266 ; Kennon v. M'Rae, v. Eaton, Id. 368 ; Bean v. Bean, 12 Id. 
 2 Port. (Ala.) 389; Cotchct !'. Dixon, 20; Cornogg u. Abraham, 1 Yeates 
 
 4 McCord (S.C.) 311; Evans W.Eaton, (Pa.) 84; Sims d. Sims, 1 Treadv.-. 
 7 Wheat. (U. S.) 350 ; M'Gee ;;. Eastis, (S. C.) Const. 131 ; Lewis v. Manley, 
 
 5 Stew. & P. (Ala.) 426; Wadhams v. 2 Yeates (Pa.) 200; Poe o. Dorrah, 
 Turnpike Co., 10 Conn. 416 ; Woodard 20 Ala. 288 ; Adams v. Barrett, 3 Ga. 
 V. Spiller, 1 Dana (Ky.) 179; Ilenarie 277; Howard v. Brown, Id. 523; Har- 
 V. Maxwell, 5 Hals. (N. J.) 297 ; Spurr vey v. Anderson, 12 Ga. 69 ; Jordan v. 
 
52 COMPETENCY. TCHAP. V. 
 
 ved was not sufficient.'- And it had to appear that the wit- 
 ness's interest was a legal and beneficial one. The test applied 
 was whether the witness would gain or lose by the direct legal 
 operation and effect of the judgment in the cause ; or whether 
 the record would be legal evidence for or against him in some 
 other action. 2 
 
 Thus the witness was excluded if the effect of his testi- 
 mony would be to create or increase a fund in which he 
 would be entitled to participate ;^ or prevent the diminution 
 of such a fund ;* or extinguish a debt owed by him.^ 
 
 The disqualifying interest had to be a legal one, and not 
 merely " the prejudice or bias resulting from friendship or 
 hatred, or from consanguinity, or any other domestic or 
 social, or any official relation, or any other motives by which 
 men are generally influenced ; for these go only to the cred- 
 ibility."^ Thus the rule did not extend to agents, carriers, 
 factors, brokers, or other servants, when offered to prove any 
 acts done within the scope of their employment;'' or to par- 
 ent and child, guardian and ward, attorney and client, and 
 the other personal and legal relations.^ It made no difference, 
 according to some of the cases, whether the interest was direct 
 or indirect;^ nor, if pecuniary, was the amount of any im- 
 portance, the most trifling interest being as potent as the 
 greatest.^" 
 
 Pollock, 14 Ga. 145 ; Clarke v. Rob- 3 T. E. 62 ; Bailey v. Lumpkin, 1 Ga. 
 inson, 5 B. Mon. (Ky.) 55; Smith v. 392; Jones r.Post,4 Gal. 14; State v. 
 White, 5 Dana (Ky.) 376; City Coun- Poteet, 7 Ired. (N. C.) L. 356. 
 cil v. Weikman, 1 Rich. (S. C.) 240; ^ Governor i). Justices, 20 Ga. 359; 
 Smith V. White, 5 Dana (Ky.) 376; Poster v. Rutherford, Id. 676; Rome 
 Marwick v. Georgia Co., 18 Me. 49 ; v. Dickerson, 13 Ga. 302 ; Cleverly v. 
 Blake «. Irish, 21 Me. 450 ; Dunbar r. MoCullough,2 Hill (S. C.) 445; Brown 
 Chevalier, 28 Miss. 161; Pickett v. v. O'Brien, 1 Rich. (S. C.) 268; John- 
 Cloud, 1 Bailey (S. C.) 362 ; Ford i-. son v. Alexander, 14 Tex. 382. 
 McKibbon, 1 Strobh. (S. C.) 33 ; Smith 4 Stebbins v. Sackett, 5 Conn. 258. 
 V. Asbill, 2 Rich. (S. C.) 546; Hill v. "■ Richardson v. Bartley, 2 B. Mon. 
 Miller, 2 Swan (Tenn.) 659; Osborn (Ky.) 328. 
 
 V. Cummings, 4 Tex. 10; Bigham ,:. ^ 1 Greenl. Er. (14 ed.) § 386. 
 Carr, 21 Tex. 142. ' Eaton v. Gentle, 1 Chand. (Wis.) 
 
 1 Williams c. Jones, 2 Ala. 314 ; 10. 
 
 Todd V. Boone County, 8 Mo. 431 ; » See, as to these, infra, §§ 53, 60, 
 
 Stewart v. Conner, 9 Ala. 803; Wright 69, 76. 
 
 V. Lewis, 18 Ala. 194 ; Clapp v, Man- ' Kennedy v. Bossiere, 16 La. Ann. 
 
 deville, 6 Miss. 197; Bass v. Peevey, 445; McCall u. Smith, 2 McCord(S.C.) 
 
 22 Tex. 295; Masters b. Varner, 5 375; Kimball v. Kimball, 3 Rawie (Pa.) 
 
 Gratt. (Va.) 168. 469. 
 
 2 Eaton t). Gentle, 1 Chand. (Wis.) lo Hunters. Gatewood, 5 Mon. (Ky.) 
 10 ; 1 Stark. Ev. 102 ; Bent i . Baker, 268 ; Scott !'. McClellan, 2 Me. 199. 
 
§ 47.] PERSONS INTERESTED. 53 
 
 Any interest which could be asserted in a court of justice, 
 whether a common law court or a court of equity, was 
 enough to exclude the witness;^ and the rule was carried so 
 far as to exclude a witness who was interested in only a part 
 of the plaintiff's demand, from testifying as to another part 
 of it, in which he had, in fact, no interest.^ 
 
 § 47. The Scope and Limits of the Rule. — In view of 
 the fact that both in England and America the mere interest 
 of a witness in the event of the suit is no longer (except per- 
 haps in ono or two jurisdictions, and even in them to a lim- 
 ited extent) a disqualification, only a limited number of the 
 multitude of cases illustrating the scope and limits of this 
 rule of the common law will be cited. The writer's object is, 
 primarily, to show what the law now is, and to that end he 
 must exhibit its growth and history, but not necessarily cite 
 some thousands of obsolete cases for that purpose. 
 
 First we may safely assert that the interest must be a real 
 and not an imaginary or apprehended one. It is the fact of 
 interest ; its actual existence, and not the belief of the par- 
 ties that it does exist, which will disqualify the witness.^ 
 
 Accordingly it has been laid down that the declarations of 
 a witness, made to others, that he is interested in the event 
 of a suit, do not prove him to be so, or that he is an incom- 
 petent witness.* 
 
 Thus, a belief on the part of the witness that he is under 
 an honorary obligation to the party calling him, in respect of 
 the matter in controversy, will not disqualify him, however 
 it may affect his credibility with the jury.^ There is no lack 
 
 1 Blum f. Stafford, 4 Jones (N. C.) * George v. Stubbs, 26 Me. 243; 
 L. 94. Nichols :,■. Holgate, 2 Aik. (Vt.) 138 ; 
 
 2 Gage V. Stewart, 4 Johns. (N. Y.) Cole v. Cole, 33 Me. 542. 
 
 293. = Smith v. Downs, 6 Conn. 365 ; 
 
 3 1 Phil. Ev. 127, 128; 1 Stark, Ev. Orput v. Miller, 5 Blackf. (Ind.) 571 ; 
 102; Gayle v. Bishop, 14 Ala. 552; Union Bank ti. Knapp, 3 Piek.{Mass.) 
 McCabe v. Hand, 18 Cal. 496 ; Stall- 96, 108 ; Howe v. Howe, 10 N. H. 88 ; 
 ings t). Carson, 24 Ga. 423; Washing- Gilpen v. Vincent, 9 Johns. (N. Y.) 
 ton &c. Road v. State, 19 Md. 239; 219; Moore v. Hitchcock, 4 Wend. 
 State V. Poteet, 7 Ired. (N. C.) L. (N. Y.) 292; Ludlow v. Union Ins. 
 356; Cassiday v. McKenzie, 4 Watts Co., 2 S. & E. (Pa.) 119; Long v. 
 & S. (Pa.) 282; Commercial Bank v. Bailie, 4 Id. 222; Coleman v. Wise, 
 Hughes, 17 "Wend. (N. Y.) 94; Stall 2 Johns. (N. Y.) 165; Commonwealth 
 0. Catskill Bank, 18 Id. 466; Coghill v. Gore, 3 Dana (Ky.) 474; M'Caus- 
 V. Boring, 15 Cal. 213; Elliott v. Por- land v. Neal, 3 Stew. & P. (Ala.) 131 
 ter, 8 Dana (Ky.) 299; Sims v. Sims, Prink v. McClung, 9 111. (4 Gilm.) 569 
 3 Brev. (S. C.) 252. Carman v. Foster, 1 Ashm. (Pa.) 133 
 
5-4 
 
 COMPETENCY. 
 
 [chap. V. 
 
 of cases to the contrary of the above proposition, but the 
 writer believes it to be the better opinion.^ 
 
 Again, tlie interest (as we have seen in the preceding 
 section) must be in the event of the litigation, and not 
 merely in the question involved.^ So also, the rule was, that 
 if the witness could not gain or lose by the event of the suit, 
 or if the verdict could not be given in evidence for or against 
 him in another action, he was competent, his credibility only 
 being affected.^ Again, the disqualifying interest must be 
 immediate and not remote,* and upon the very point of the 
 case to which he is called to testify.^ So also, it must have 
 existed at the beginning of the suit, the rule being that a 
 Avitness cannot deprive a party of his evidence, by creating a 
 subsequent interest, by his own act, without the concurrence 
 of the party calling him ; much less can he do so by agree- 
 ment with the opposite party .^ And it must be direct and 
 certain, or no matter what its character in other respects, it 
 will go only to the credibility.'' 
 
 S. P. Haris v. Barkley, Harp. (S. C.) 
 63; Long v. Bailee, 4 S. & E. (Pa.) 
 222; State v. Clark, 2 Tyler (Vt.) 
 278. 
 
 ' Plumb V. Whiting, 4 Mass. 518 ; 
 Moore v. Hitchcock, 4 AVend. (N. Y.) 
 292; Peteri). Beall, 4Har. &M. (Md.) 
 342 ; Sentney v. Overton, 4 Bibb (Ky.) 
 445 ; M'Veaugh v. Goods, 1 Dall. 62 ; 
 Winn V. Cole, 1 Miss. (Walk.) 119; 
 Johnson u. Kendall, 20 N. H. 304; 
 Eichardson v. Hunt, 2 Munf. (Va.) 
 148. 
 
 2 Rollins I'. Taber, 25 Me. 144; 
 McLaren u. Hopkins, 1 Paige (N. Y.) 
 18 ; Estice v. Cockerell, 26 Miss. 127 ; 
 Stoddard v. Mix, 14 Conn. 12. 
 
 ^ Van Nuys u. Terhune, 3 Johns. 
 (N. Y.) Cas. 82; Coltart v. Laughing- 
 house, 38 Ala. 190 ; People v. Howell, 
 4 Johns. (N. Y.) 296; State v. Poster, 
 3 McCord (S. C.) 442; State u. Has- 
 sett, 1 Tayl. (N. C.) 65. 
 
 * Harbin v. Roberts, 33 Ga. 45 ; 
 Fountain u. Anderson, Id. 372 ; 
 McCaskey v. Graff, 23 Pa. St. 321 ; 
 State V. Farrow, 10 Rich. (S. C.) 
 165 ; Richardson v. Dingle, 11 Id. 
 405; Linsley v. Lovely, 26 Vt. 123; 
 Galbraith v. Scott, 2 Dall. (U. S.) 95. 
 
 ' Shelton u. Tomliuson, 2 Root 
 
 (Conn.) 1.32 ; Smith ». Carrington, 
 4 Cranch (U. S.) 62; Bank of Utica 
 V. Mersereau, 3 Barb. (N. Y.) Ch. 528. 
 
 ^ Hafner v. Irwin, 4 Ired. (N. C.) 
 L. 529; Webb v. Danforth, 1 Day 
 (Conn.) 301; Price v. Woods, 7 T. 
 B. Mon. (Ky.) 223; Way i,. Arnold, 
 18 Ga. 181 ; Baylor v. Smithers, 1 
 Litt. (Ky.) 105; Long v. Bailie, 4 
 Serg. & R. (Pa.) 222; McDaniel's 
 will, 2 J. J. Marsh. (Ky.) 331; Rhem 
 V. Jackson, 2 Dev. (N. C ) L. 187 ; 
 Whiting V. Gould, 1 Wis. 195 ; Jones 
 V. Hoskins, 18 Ala. 489. 
 
 ' Day V. Green, Hard. (Ky.) 117 ;, 
 Stewart v. Kip, 5 Johns. (N. Y.) 256; 
 Phelps V. Hall, 2 Tyler (Vt.) 399; 
 Stockham v. Jones, 10 Johns. (N. Y.) 
 21 ; Ten Eyck v. Bill, 5 Wend. (N. Y.) 
 55; Burroughs v. United States, 2 
 Paine (U. S.) 569; Easley v. Easley, 
 18 B. Mon. (Ky. ) 86 ; Millett v. Parker, 
 2 Mete. (Ky.) 608 ; Cutter v. Fanning, 
 2 Iowa, 580 ; Frankfort Bank v. John- 
 son, 24 Me. 490; Melvin v. Melvin, 6 
 Md. 541. But it has been held that 
 an interest under an agreement, voida- 
 ble by the statute of frauds, may render 
 a witness incompetent, for non constat 
 that the statute will ever be pleaded. 
 Eobbins r. Butler, 24 111. 887. And 
 
47.] 
 
 PERSONS INTERESTED. 
 
 65 
 
 There are early cases to be found in which the testimony of 
 a witness was admitted no matter how clear, great, certain or 
 immediate his interest was, where tlie parties .consented to 
 receive his testimony ;i or where no other evidence could be 
 obtained ; ^ or where the object was to prove the facts and 
 
 see Andre v. Bodman, 13 Md. 241; 
 Scull V. Mason, 43 Pa. St. 99; Went- 
 worth V. Crawford, 11 Tex. 127. 
 
 In applying the rules stated in the 
 text, it has been held that a contractor 
 for a building could prove a material- 
 man's lien against the owner (Wolf v. 
 Batchelder, 66 Pa. St. 87. And see 
 Andre v. Bodman, 13 Md. 241 ; contra, 
 under the New York mechanics' lien 
 law, Collins v. Ellis, 21 Wend. (N. Y.) 
 397) ; that one insurer could testify 
 for another interested in the same 
 policy (Bent v. Baker, 3 T. E. 27) ; 
 or one seaman for another, in an 
 action for wages where the defence 
 affected the right of all the crew to 
 recover (Spurr v. Pearson, 1 Mason 
 (U. S.) 104; Baker v. Corey, 19 Pick. 
 (Mass.) 496; Hoyt v. Wildfire, 3 Johns. 
 (N. Y. ) 518 ; Murray v. Wilson, 1 Binn. 
 (Pa.) 531; S. P. United States ;.. Free- 
 man, 4 Mason (U. S.) 505; Burrows 
 V. Eeeves, 1 Nott & M. (S. C.) 427) ; 
 so the licensee of a patent may testify 
 for the patentee, in an action for in- 
 fringement (Buck V. Hermance, 1 
 Blatchf. (U. S.) 322; De Rosnie v. 
 Fairlie, 1 M. & Rob. 457); and a, 
 person signing a notice and applica- 
 tion for a road may prove the putting 
 up of the notices (Matter of Highway, 
 3 Gr. (N. J.) 39) ; so may a notary 
 who has omitted to notify an indorser 
 testify in an action on the note by the 
 holder against the indorser (Johnson 
 V. Harth, 2 Bail. (S. C.) 183); and the 
 same principle applies in the case of a 
 master of one of two vessels in colli- 
 sion, — he may testify in the collision 
 case, notwithstanding his liability over 
 (Crary v. Marshall, 1 E. D. Smith 
 (N. Y.) 530). Again, one landowner 
 may testify for another claiming under 
 the same title or by the same lines and 
 corners (Owings v. Speed, 5 Wheat. 
 (U. S.) 423; Bulklcy v. Storer, 2 Day 
 (Conn.) 531; King v. Tarleton, 2 Har. 
 & M. (Md.) 473; Parker v. Brown, 15 
 
 N. H. 176; Moody y. Fulraer, 3 Grant 
 (Pa.) 17; Richardson v. Carey, 2 Rand 
 (Va.) 87. See also Bean v. Smith, 20 
 N. H. 461); otlierwise, as to a mere 
 occupant of the land (Poust v. Trice, 
 8 Jones (N. C.) L. 490; Jackson v. 
 Hills, 8 Cow. (N. Y.) 290; Strawbridge 
 V. Cartledge, 7 Watts & S. (Pa.) 394) ; 
 and a creditor may testify for his debt- 
 or (Bank of Alexandria v. Mandeville, 
 1 Cranch, C. C. 575 ; Benedict v. Brow- 
 son, Kirby (Conn.) 70 ; HesketV v. 
 Borden Mining Co., 10 Md. 179 ; Gicker 
 V. Martin, 50 Pa. St. 138. So may one 
 devisee testify for another claiming 
 under the same will (Jackson v. Nel- 
 son, 6 Cow. (N. Y.) 248 [see infra. 
 § 61]); or one co-trespasser, for his 
 associate in the trespass ( Walton v. 
 Shelley, 1 T. R. 301; Clement v. 
 Wafer, 12 La. Ann. 599; Dundas v. 
 Muhlenberg, 35 Pa. St. 351); and a 
 stakeholder having paid over the 
 money to the supposed winner, after 
 notice to him by the loser not to do 
 so, the person so receiving it is a com- 
 petent witness for the loser, in an 
 action by hira against the stakeholder 
 to recover it (Ivey o. Phifer, 13 Ala. 
 821). 
 
 So, also, in criminal cases the per- 
 son injured by the offence is compe- 
 tent to prove its commission (Fowler 
 V. State, 5 Day (Conn.) 81 ; Kersh v. 
 State, 24 Ga. 191 ; State v. McKennan, 
 Harp. (S. C.) 302) unless he be enti- 
 tled to the fine or penalty (Northcot i-. 
 State, 43 Ala. .330; State v. Vaughan, 
 1 Bay (S. C.) 282. Compare Hand- 
 ley V. Call, 27 Me. 35) ; and the owner 
 of stolen property may testify against 
 the thief or receiver (Gassenheimer v. 
 State, 52 Ala. 313; Campbell i-. Thomp- 
 son, 10 Me. 117 ; Commonwealth v. 
 Moulton, 9 Mass. 30. See also State 
 V. Everest, 1 Morr. (Iowa) 206; State 
 V. Pray, 14 N. H. 464). 
 
 1 Allen V. Brown, 5 Mo. 323. 
 
 2 Lampley v. Scott, 24 Miss. 528. 
 
COMPETENCY. 
 
 [chap. V. 
 
 circumstances necessary to lay a foundation for secondary 
 evidence of a writing, as that a search had been made, and it 
 could not be found.^ 
 
 § 48. Operation of the Rule as to "Witnesses ■whose Interest 
 is balanced. — Many of the earlier cases agree that where the 
 interest of the witness is equal on both sides, or, as it is 
 usually expressed, balanced, he is competent.^ Thus, where 
 he is liable in any event, and his testimony is to determine to 
 which of the parties he is liable, he is a competent witness 
 for either party. ^ This rule is applied in equity to the same 
 extent as in actions at law.* But if the interest of the witness 
 be not evenly balanced, but preponderates against the party 
 calling him, he will be incompetent, for he is then interested 
 for the excess ; ^ and this rule holds even though the prepon- 
 derance of interest be confined to a liability for costs.^ Thus, 
 in the case of a claimant of property taken on execution, in 
 order that the execution debtor may be a witness, it must 
 appear that the claimant deduces his title from the debtor, 
 otherwise his interest is not balanced.'^ But an interest in a 
 
 Fairf.) 371 ; Lightner v. Martin, 2 
 McCord (S. C.) 214; Miller v. Little, 
 1 Yeates (Pa.) 26. Thus in an action, 
 upon a policy of insurance, for the loss 
 of the steamboat insured, the pilot at 
 the wheel is a competent witness ; for, 
 if he is liable at all on account of his 
 negligence, he will be liable to the los- 
 ing party, whichever it may be (Vairin 
 V. Canal Ins. Co., 10 Ohio, 223). 
 
 * Douglass V. Holbert, 7 J. J. Marsh. 
 (Ky.) 1 ; Smalley v. Ellet, 36 111. 500; 
 Miller r. McCan, 7 Paige (N. Y.) 457. 
 The following cases will serve to illus- 
 trate many of the circumstances under 
 which the interest of a witness may be 
 considered balanced : Pyke v. Searcy, 
 4 Port. (.\la.) 52; Dearing !'. AVynd- 
 liam, 11 Ala. 204 ; Lewis v. Ilodgdon, 
 17 Me. 207; Cutler v. Copeland, 13 
 Me. 127; Norton v. AVaite, 20 Me. 
 175; Nute v. Bryant, 01 Me. 553; 
 Abbott V. Cobb, 17 Vt. 593. To cite 
 others is unnecessary. 
 
 5 Gill V. Campbell, 24 Tex. 405 ; 
 Dille u. Woods, 14 Ohio, 122. 
 
 Scott V. McClellan, 2 Me. 199 ; 
 Hubly V. Brown, 10 Johns. (N. Y.) 
 70. See also infra, §§ 49, 51. 
 
 ' Yarborough v. Scott, 5 Ala. 221. 
 
 1 Juzan a. Toulmin, 9 Ala. 062 ; 
 Hill V. Barney, 18 N. H. 607. See 
 also Baugher r. Culler, 12 Md. 0. 
 
 - Scott V. The Plymouth, McLean, 
 463 ; The Plymouth, 1 K"ewb. Adm. 50; 
 The Governor f. Gee, 19 Ala. 199; El- 
 gin V. Hill, 27 Cal. 372 ; Cadwell v. 
 Meek, 17 111. 220; Muchmore o. Jef- 
 
 fers, 25 lU. 199; 
 chanan, 11 Iowa, 
 Mitchell, 28 111. 
 Evans, 31 111. 258 ; 
 10 La. Ann. 
 
 Kingsbury r. Bu- 
 387 ; Montague v. 
 
 481 ; Kennedy u. 
 
 Rhodes v. Myers, 
 98; Tyler v. Trabue, 8 
 B. Mon. (Ky.) 306; Adams v. Gardi- 
 ner, 13 Id. 197 ; Ford v. McKibbon, 1 
 Strobh. (S. C.) 33; Thomassoni). Ken- 
 nedy, 3 Kich. ( S. C. ) Eq. 440 ; Milward 
 V. Hallett, 2 Cai. (N. Y.) 77 ; Stump v. 
 Roberts, Cooke (Tenn.) 350; Kcssly«. 
 Swearingen, Add. (Pa.) 144; Alston v. 
 Huggins, 2 Treadw. (S. C.) Const. 688; 
 Standefer u. Chisholm, 1 Stew. & P. 
 (Ala.) 449; Bridges ;,•. Bell, 13 Mo. 69. 
 ^ Cushman v. Loker, 2 Mass. 108 ; 
 Spence v. Mitchell, 9 Ala. 744 ; Locket 
 V. Child, 11 Ala. 640; Emerson v. 
 Providence Hat Manufactory, 12 Id. 
 2.';7; Stewart v. Stocker, 1 Watts (Pa.) 
 135 ; Wright v. Nichols, 1 Bibb (Ky.) 
 298 ; Eldridge v. Wadleigh, 12 Me. (3 
 
§ 49.] PEESONS INTERESTED. 67 
 
 witness in one way cannot be counterbalanced or outweighed 
 by an equal or greater in the opposite, unless the latter is 
 also direct and immediate.-' Nor, where his interest is prima 
 facie balanced, will the possibility that he may have a better 
 defence against one side than the other, prevent his being 
 sworn .2 
 
 § 49. or preponderates against the Party calling 
 
 them. — So, also, the converse to the principle last stated is 
 equally well sustained, viz. that if the interest of the witness 
 preponderates against the party calling him, he is competent, 
 for to exclude him on the ground of interest, he must appear 
 to be interested in favor of the party who calls him^ and 
 not against him;* for in that case, if willing to testify (being 
 a party), he is competent though objected to by his co-plain- 
 tiffs or co-defendants.5 Thus, it is not a good objection to a 
 witness offered by the defendant, that he has an interest in 
 the plaintiff's recovery.^ 
 
 § 50. or -who -will testify against Interest. — Mr. 
 
 Greenleaf says : " It is hardly necessary to observe that, where 
 a witness is produced to testify against his interest, the rule 
 that interest disqualifies, does not apply, and the witness is 
 competent." ^ This has, of course, been repeatedly so held 
 
 1 Brown v. Johnson, 13 Gratt. ("Va.) ' Parsons v. Phipps, 4 Tex. 341 ; 
 644. Thus a person interested for Ware ti. Bennett, 18 Tex. 794; Abbott 
 both parties, but on one side directly v. Clark, 19 Vt. 444 ; Miner v. Downer, 
 and certainly, and on the other indi- 20 Vt. 461 ; Paine o. Tilden, Id. 554 ; 
 rectly and contingently, is incompe- Sargeant v. Sargeant, 18 Vt. 371. 
 tent as a witness for the party in Compare Smith v. Elder, 7 Sm. & 
 whom he is directly interested (Pool M. (Miss.) 507. 
 
 V. Myers, 21 Miss. 460). " Kalph v. Brown, 3 Watts & S. 
 
 2 Starkweather v. Mathews, 2 Hill (Pa.) 395. S. P. Horry v. Glover, 
 (N. Y.) 131. Eiley (S. C.) Ch. 53 ; but in such a 
 
 ^ Sims V. Givan, 2 Blackf. (Ind.) case the plaintiff may also call him to 
 
 461 ; Kennedy n. Barnett, 1 Bibb testify as to other facts (Turner v. 
 
 (Ky.) 154; Jackson o. Vredenbergh, Waterson, 4 Watts & S. (Pa.) 171). 
 
 1 Johns. (N. Y.) 159; Lansingburg t». On an issue between a judgment- 
 
 Willard, 8 Id. 428. plaintiff and a garnishee, relatire to 
 
 * Stokes u. Kane, 5 111. (4 Scam.) the ownership of money in the lat- 
 
 167; Turner ■«. Davis, 1 B. Mon. (Ky.) ter's hands, the judgment-debtor's in- 
 
 151; Englehard v. Slater, 8 Miss. (7 terest is in the plaintiff's favor ; and ho 
 
 How.) 538; Doe v. Jackson, 1 Sm. may consequently testify for him (Ty- 
 
 & M. (Miss.) 494; Haile v. Hill, 13 ler v. Coolbaugh, 7 Iowa, 474). So, 
 
 Mo. 612 ; Lof tin v. Nally, 24 Tex. 565 ; also, a stockholder may testify in 
 
 Darling v. March, 22 Me. 184 ; Brown favor of the corporation, if his indi- 
 
 f. O'Brien, 1 Rich. (S. C.) 268; Alston vidual interest is adverse to that of 
 
 V. Huggins, 3 Brev. (S. C.) 185; Le the corporation (Canandarqua Acade- 
 
 Clair V. Peterson, 4 Blackf. (Ind.) 273 ; my v. McKechnie, 90 N. Y. 618). 
 
 Nooe V. Higdon, Id. 184. ' 1 Greenl. Ev. § 410. 
 
58 COMPETENCY. [CHAP. V. 
 
 where the testimony was voluntarily given ;i but it has been 
 lield by a very respectable court, that an infant party ivill not 
 he permitted to do so, even with the consent of his guardian 
 ad litem ;^ and an early case in Illinois decides, that where a 
 party in interest is not also a party to tlie record, he m-nj, at 
 the instance of the opposite party, be compelled to testify as 
 a witness, against his own interest, provided his answers do 
 not subject him to a criminal prosecution, or to a penalty or 
 forfeiture.^ 
 
 § 51. 'Witness Liable for Costs. — The incompetency of a 
 party to the record, arising out of his interest in the costs of 
 the suit, has already been examined.* The effect of such an 
 interest on the part of a witness not a party remains to be 
 considered. The rule of the common law being that any 
 interest in the event, however trifling, disqualified a witness, 
 it was uniformly held that an interest in the costs of the liti- 
 gation would exclude the witness.^ 
 
 Thus, one who is, individually or with others, directly 
 liable for costs in a cause, is not a competent witness to prove 
 any fact which would relieve him from these costs ;^ and a 
 liability for costs, in the event of a recovery on notes, prevents 
 the person so liable from being a competent witness in a bill 
 in equity to have the notes surrendered and cancelled.^ 
 Again, where persons, either before or after suit brought, agree 
 to divide the amount recovered, they are liable to the defend- 
 ant for costs, and cannot testify till the costs of the suit 
 have been paid, though they execute mutual releases.^ So, 
 also, the counsel of a non-resident plaintiff,^ or the indorser 
 
 1 Cowles D. Whitman, 10 Conn. 121 ; Vason v. Merchants' Bank, 2 Ga. 
 Commercial Bank w.Wood, 7 Watts 140; Wilkes u. McClung, 29 Ga. 
 & S. (Pa.) 89; Brown K.Burke, 22 Ga. 371; Cherry v. McCorkle, 8 Iowa, 
 574; Nooe V. Higdon, 4 Blackf. (Ind.) 522; Allison v. Allison, 7 Dana 
 184; Merchand v. Cook, 4 Greene (Ky.) 90; Bullitt v. Stewart, 16 La. 
 (Iowa) 115; Sims v. Randal, 1 Brev. Ann. 22; Cason v. Eobson, 29 Miss. 
 (S. C.) 85; Tuttle v. Turner, 28 Tex. 97; Bennet v. Carter, Kiley (S. C.) 
 759 ; Gardner u. Gardner, 4 Heisk. 287 ; Bennett v. Cowling, 22 Tex. 660. 
 (Tenn.) 303. <= Ware v. Jordan, 21 Ala. 837. 
 
 2 Eickards v. Laus, 3 Harr. (Del.) ' Person v. Sanger, 1 Woodb. & M. 
 393. (U. S.) 138. 
 
 8 Brooks V. M'Kinney, 5 111. 309. « Mackinley v. M'Gregor, 3 Whart. 
 
 * Supra, § 29. (Pa.) 370. 
 
 '"' Bill V. Porter, 9 Conn. 23 ; Bene- « Robinson v. Towns, 30 Ga. 818. 
 
 diet V. Brownson, Kirby (Conn.) 70; But it was decided in New York that 
 
 Craven u. Updike, 3 Blaclcf. (Ind.) a partner with the plaintiffs attor- 
 
 272 ; Beacli v. Swift, 2 Conn. 269 ; ney, who is interested in the costs, 
 
§ 51.J PERSONS INTERESTED. 59 
 
 of a writ,i being liable for the costs, cannot testify in the 
 suit. And where witnesses for the plaintiff of record sue a 
 third person for their fees, the plaintiff of record, being prima 
 facie liable for such fees, is incompetent as a witness for tlie 
 plaintiffs.^ But the interest of the witness in these cases 
 could be released, and the witness rendered competent. Thus 
 wliere the suretj' in a bond for costs was required as a 
 witness, the plaintiff could substitute a new bond, release the 
 surety, and use him as a witness ; ^ and where a witness was 
 objected to as the indorser of the writ, the plaintiff residing 
 out of the State, he was made competent by a stranger's 
 voluntarily depositing a sum of his own money, sufBcient to 
 cover the costs, with the clerk, in the absence and without 
 the knowledge of the plaintiff.* 
 
 and probably expects higher fees as ord having died insane, it was held 
 
 counsel in case of success, is not that his executor was a competent 
 
 therefore an incompetent witness witness in the latter action, the es- 
 
 (Griswold v. Sedgwick, 1 Wend, tate being sufllcient to pay the fees. 
 
 (N. Y.) 126. See also Fatten u. See also Hopkinson u. Guildhall, 19 
 
 Taylor, 7 How. (U. S.) 132). Vt. 533; Cowles r. Rowland, 2 Jones 
 
 1 Ammidown c. Woodman, 31 Me. (N. C.) L. 219. 
 
 580. 8 Hoys v. Tuttle, 8 Ark. 124. 
 
 2 Utt ti. Long, 6 Watts & S. (Pa.) * Ammidown v. Woodman, 31 Me. 
 174. In this case, the plaintifE of rec- 580. 
 
CHAPTER VI. 
 
 VAEIOUS ILLTJSTKATIOXS OF THE EULE AS TO PAKTIES 
 AND PEESONS INTEEESTED. 
 
 § 52. Assignor or Assignee. 
 
 § 53. Attorneys. 
 
 § 54. Bail. 
 
 § 55. Bailor or Bailee. 
 
 § 56. Bankrupts. 
 
 § 57. Debtor or Creditor. 
 
 § 58. Donor or Donee. 
 
 § 59. Grantor or Grantee. 
 
 § 60. Guardian or Ward. 
 
 § 61. Heirs, Devisees, Legatees, and Next of Kin, 
 
 § 02. Jurors, Grand and Petit. 
 
 § 03. Landlord or Tenant. 
 
 § 04. Mortgagor or Mortgagee. 
 
 § 65. Negotiable Paper, Parties to. 
 
 § 00. Non-Negotiable Paper, Parties to. 
 
 § 67. Obligor and Obligee. 
 
 § 68. Officers. 
 
 § 69. Parent or Child. 
 
 § 70. Partners. 
 
 § 71. Part-Owners. 
 
 § 72. Personal Representatives. 
 
 § 73. Principal or Agent. 
 
 § 74. Principal or Surety. 
 
 § 75. Prosecutors and Informers. 
 
 § 76. Servants. 
 
 § 77. Shareholders and Corporate Officers. 
 
 § 78. Trustee or Cestui que Trust. 
 
 § 79. ITsurious Contracts, Parties to. 
 
 § 80. Vendor and Purchaser of Lands. 
 
 § 81. of Personal Property. 
 
 § 82. AVarrautors. 
 
 §52. Assignor or Assignee. — (1) Assignor. Where tlie 
 assignor of a chose in action is not a party to the record, it 
 must be shown in order to disqualify him as a witness, thiit 
 the assignment was made for the purpose of making him 
 a witness to support the claim; and if there are circum- 
 stances of that character, it lies on the party objecting to 
 
§5^-] 
 
 PARTIES AND PERSONS INTERESTED. 
 
 Gl 
 
 show tliem.i He is a good witness if he has no interest.^ 
 Even where the assignment is made during the pendency of 
 tlie suit, and, by order of court made without objection on 
 the part of tlie defendant, tlie assignee is substituted in the 
 action for the assignor, and no security for costs is ordered, 
 all claim upon the original plaintiff for costs is waived, and 
 the assignor is a competent witness for the assignee.^ 
 
 On the other hand, it was repeatedly held at common law, 
 that the assignor of a chose in action, or unliquidated claim, 
 was incompetent to testify in an action thereon,* unless re- 
 leased from the implied warranty which arises in all cases of 
 assignment for a valuable consideration, that the debt is due.^ 
 And he cannot establish such release by his own testimony, 
 especially where the assignment is merely colorable, made 
 only for the purpose of enabling him to testify, and with the 
 clear intent that he shall receive the benefit of the recovery .^ 
 
 (2) Assignee. As respects the competency of an assignee 
 of a chose in action, it has been held that he is competent if 
 
 1 Roshing v. Chandler, 3 Pa. St. 
 ."75. But see Parish u. Frampton, 32 
 Mo. 390 ; Hendricks v. Ebbitt, 37 Mo. 
 24. 
 
 2 Fetterman v. Plummer, 9 S. & R. 
 (Pa.) 20. So lield of one who assigned 
 a claim to a creditor, on account of 
 his debt, without any agreement that 
 any part of the debt should be thereby 
 extinguished (Bridges v. Hyatt, 10 
 N. Y. 546. See also Cobb v. Baldwin, 
 1 Root (Conn.) 534 ; Watson v. Smith, 
 13 Wend. (N. Y.) 51. S. P. Piatt i'. 
 Hedge, 8 Iowa, 380, 392. But sec 
 Wilkins v. Stidger, 22 Cal. 231). 
 
 3 Warner v. Turner, 18 B. Mon. 
 (Ky.) 758. Compare Freeman v. Jen- 
 nings, 7 Rich. (S. C.) 381. The assign- 
 or of a bond may show that he ob- 
 tained it fraudulently (Baring i>. 
 Shippen, 2 Binn. (Pa.) 154). The 
 assignor of a judgment may testify 
 in a suit thereon (Doub v. Barnes, 
 1 Md. Ch. 127; Himblewright ,■. 
 Armstrong, 25 Pa. St. 428. But see 
 Burrows v. Shultz, 6 Pa. St. 325). 
 So may the assignor of a mortgage 
 (Grosvenor v. Atlantic Fire Ins. Co., 
 1 Bosw. (N. Y.) 469; McConnell <-. 
 McCracken, 14 Wis. 83) ; or the as- 
 signor of a note (Johnson v. Black- 
 
 mar, 11 Conn. 324; Weil v. Tyler, 38 
 Mo. 558; Taylor t: Gitt, 10 Pa. St. 
 428; Caton v. Lenox, 5 Rand. (Va.) 
 31. But see Woolfolk v. M'Dowell, 9 
 Dana (Ky.) 268) ; or of a policy of 
 insurance (Bidwell v. St. Louis &c. 
 Ins. Co., 40 Mo. 42). 
 
 * Reading Railroad v. Johnson, 7 
 AVatts & S. (Pa.) 317; Clifton u. 
 Sharpe, 15 Ala. 618 ; Houston v. Prc- 
 witt, 8 Ala. 840; Muirhead v. Kirk- 
 patrick, 2 Pa. St. 425; Adams v. 
 Woods, 8 Cal. 300 ; Cox ,.-. Davis, 10 
 Ind. 378 ; Swails v. Coverdill, 17 Ind. 
 337; Ketcham c. Hill, 42 Ind. 04; 
 Woodruff V. Cox, 2 Bradf. (N. Y.) 
 223 ; London &c. Soc. v. Hagarstown 
 &c. Bank, 30 Pa. St. 498 ; Ho^vertou 
 V. Holt, 23 Tex. 51. 
 
 ° Ludwig r. Meyre, 5 AVatts & S. 
 (Pa.) 435; Dclcc c. Sandel, 12 La. 
 Ann. 208. 
 
 "Bell i: Drew, 4 E. D. Smith 
 (N. Y.) 59; Post v. Avery, 5 AVatts 
 & S. (Pa.) 509. So held whore before 
 the assignment was made he pledged 
 himself to testify for the assignee 
 (Patterson v. Reed, 7 AVatts & S. (Pa.) 
 144. S. P. Phinnoy v. Tracy, 1 Pn. 
 St. 173; Syphcr v. Long, 4 Watts 
 (Pa.) 253). 
 
62 COMPETENCY. [CHAP. YI. 
 
 his testimony does not tend to support the title of the party 
 calling him.i But where such assignee re-assigns, neither he 
 nor his assignee can testify .^ And where a judgment which 
 has been assigned is afterwards reversed, and remanded for 
 further proceedings, the assignee, being interested, cannot 
 testify for the plaintiff.^ So one to whom a promissory note 
 is assigned as a pledge, is incompetent to testify for the 
 assignor in an action on the note.* 
 
 In the case of an assignment in bankruptcy, or insolvency, 
 or for the benefit of creditors, it is well settled that the as- 
 signor is a competent witness in an action relating to the 
 piroperty by the assignee, the suit not being for the imme- 
 diate benefit of the assignor,^ especially where he has re- 
 leased the assignee from all claims to a surplus.® 
 
 § 53. Attoi-peys. — It is not the purpose of the writer to 
 consider here any of the cases which have to do with confi- 
 dential communications between attorney and client, or the 
 admissibility of the testimony of an attorney as to matters 
 involving the relationship between him and his client;'' but 
 simply to examine the decisions which pass upon the question 
 of an attorney's competency or incompetency, as a witness 
 interested in the event of the litigation. 
 
 Mr. Greenleaf says : " In regard to attorneys, it has in Eng- 
 land been held a very objectionable proceeding on the part 
 of an attorney to give evidence when acting as advocate in 
 the cause, and a sufficient ground for a new trial.^ But 
 in the United States no case has been found to proceed 
 
 "■ Wilson v. Speed, 3 Cranch (U. S.) (S. C.) 413; Gildirist v. Martin, 1 
 
 283. Bail. (S. C.) Ch. 492. 
 
 2 Grayson's Appeal, 5 Pa. St. 395; « Greene v. Durfce, Cush. (Mass.) 
 Clover V. Painter, 2 Id. 46. 362 ; Jaques i'. Marquand, 6 Cow. 
 
 3 Stewart v. Conner, 13 Ala. 94. (N. Y.) 497 ; Bussy </. Ady, 3 Har. & 
 1 Harbinii. Roberts, 33 Ga. 45. To M. (Md.) 97; Price o. Caperton, 1 
 
 the contrary, Locke v. IS. Amer. Ins. Duv. (Ky.) 207; Faunce v. Leslie, 
 Co., 13 Mass. 61. Pa. St. 121. For cases in which the 
 ^ Jones V. Church of Rochester, 21 competency of an assignee in bank- 
 Barb. (N. Y.) 161 ; Krum w. Beard, 31 ruptcy or insolvency is considered. 
 Mo. 505; Allen v. Hudson &c. Ins. see Benoist v. Darby, 12 Mo. 196; 
 Co., 19 Barb. (N. Y.) 442; Legee v. Swampscot Mach. Co. o. Walker, 22 
 Burbank, 2 E. D. Smith (N. Y.) 419. K h 457 . -q^^^ „ Brackett, 34 N. H. 
 But see Fitch v. Bates, 11 Barb. 102 ; Robb's Appeal, 41 Pa. St. '45. 
 (N. Y.) 471 ; Sharp v. Long, 28 Pa. ' See infra, § 271. 
 St. 433; Caulfield c.. Sanders, 17 Cal. » Citing Dunn v. Packwood, 11 Jur. 
 569 ; Lockwood v. Canfield, 20 Cal. 242, a. 
 126; Pinchback v. Killian, 9 Rich. 
 
§o3.] 
 
 PARTIES AND TEESOSS INTERESTED. 
 
 G3 
 
 to that extent; and the fact js hardly ever known to 
 occur." ^ 
 
 In n, very early Connecticut case it is held that an attorney 
 ■who has transacted the business for the plaintiff is a com- 
 petent witness for him ;2 and there is no lack of decisions 
 which alloAV him to testify in the very case he is managing.^ 
 Thus, he may testify that the note sued on is lost, and that 
 the copy annexed to the petition is a true copy ; * or that he 
 has been authorized to appear for the party whom he claims 
 to represent.^ So, he may testify as to the value of the ser- 
 vices of another attorney, whom he has heard try cases ; ^ or to 
 disprove the alleged champertous character of a contract 
 made by him.'^ So, also, he may testify as to what a witness 
 since deceased swore to on a former trial in which he acted 
 as counsel.^ x\nd the fact that he has opened his client's case 
 and cross-examined witnesses, does not, render him incom- 
 petent as a witness for his client.^ In Alabama, it is held 
 that if the attorney is to receive a certain fee, and not a con- 
 tingent or unliquidated one, he is competent for his client.^" 
 
 ' 1 Greenl.Ev. (14 Ed.) § 364. This 
 was very true at the time Mr. Green- 
 leaf wrote, but it seems strange that 
 some of his annotators liave not noticed 
 the subsequent accumulation of Am- 
 erican cases upon the point. 
 
 2 Smith V. Huntington, 1 Root 
 (Conn.) 226. 
 
 ^ Buckmaster v. Kelley, 15 Fla. 180 ; 
 Willis u. West, CO Ga. 013 ; Jlorgan 
 V. Roberts, 38 111. 65 ; Succession of 
 Grant, 14 La. Ann. 795; Beatty ;-. 
 Davis, 9 Gill (Md.) 211; Potter i'. 
 Ware, 1 Cush. (Mass.) 519; Beall 
 V. Territory, 1 New Mex. 507 ; State 
 V. Woodside, 9 Ired. (N. C.) L. 496; 
 Bell V. Bell, 12 Pa. St. 235 ; Johns v. 
 Bolton, Id. 339; Linton u. Ford, 46 
 Id. 294; Kea v. Trotter, 20 Gratt. 
 (Va.) 585. 
 
 « Abbott V. Striblen, 6 Iowa, 191. 
 
 ^ TuUock V. Cunningham, 1 Cow. 
 (N. Y.) 256; Gaul v. Groat, Id. 113; 
 Pixley V. Butts, 2 Id. 421; Cox v. 
 Hill, 3 Ohio, 411. 
 
 * Beekman v. Platner, 15 Barb. 
 (N. Y.) 550. 
 
 ' Benton v. Henry, 2 Coldw. (Tenn.) 
 83. 
 
 8 Sta.te V. Cook, 23 La. Ann. 347. 
 
 " Pollansbee v. Walker, 72 Pa. St. 
 228. In Louisiana, the rule is, that 
 though, under the laws of that State, 
 an attorney is competent for his cli- 
 ent, his position as a witness is one of 
 extreme delicacy for himself and the 
 court ; and it is always desirable, for 
 the harmony of the profession, the 
 independence of the bench, and pub- 
 lie confidence in the administration of 
 justice, that he should not testify ex- 
 cept in extreme cases when all other 
 means of proof are impossible ; and 
 then he should withdraw from the 
 case. Succession of Harkins, 2 La. 
 Ann. 923 ; Blanc v. Porgay, 5 Id. 
 695 ; Madden v. Parmer, 7 Id. 580 ; 
 Boissy V. Lacon, 10 Id. 29. See also 
 Mullen V. Scott, 9 La. Ann. 174, where 
 it is said that an attorney is not an 
 agent of his client within the rule 
 which admits agents for their princi- 
 pals. 
 
 1° Morrow v. Parkman, 14 Ala. 769 ; 
 McGehee v. Hansell, 13 Ala. 17; 
 Quarles t-. Waldron, 20 Ala. 217 ; even 
 though he holds a note for his fee 
 (Mosser r. Mosser, 32 Ala. 551). In 
 
64 
 
 COMPETENCY. 
 
 [chap. VI. 
 
 On the other hand, where the attorney is plainlj' interested 
 in the recovery, he is incompetent ; as, where he is liable for 
 costs, his client being a non-resident plaintiff ;i but if he be 
 indemnified, he may testify ;2 and the same is the case where 
 the contract rendering him interested has been rescinded.^ 
 If his fee is dependent on the success of his client, he cannot 
 testify if the opposite party objects.* Nor is he competent if 
 he is to receive a percentage on the amount recovered ; at 
 least, such seems to be the law in Kentucky and Louisiana.^ 
 
 If the defence to the action is some negligent or other 
 wrongful act or omission on the part of the plaintiff's 
 attorney, his contingent liability over to his client will not 
 render him incompetent on the ground of interest.^ So it 
 has been held that the mere fact that an attorney neglected 
 to appear and defend a suit, as requested by his client and in 
 pursuance of a retainer, will not disqualify him as a witness 
 
 a very recent case in "Wisconsin, four 
 witnesses called by appellant to estab- 
 lish a, material fact, were attorneys. 
 One of them was one of his attorneys 
 of record ; but when, upon the trial, 
 it was determined that his testimony 
 was material to his clients, the de- 
 fence of the action was entrusted to 
 another attorney not theretofore con- 
 cerned in the case. Two others had 
 been clerks in the office of appellant's 
 attorneys during the transactions out 
 of which the action arose, but were 
 not attorneys in the case; and the 
 fourth was an attorney for a party 
 whose interests were adverse to those 
 of appellant. The judge, in charging 
 the jury, said that he " did not know 
 that any court had ever decided that 
 a lawyer cannot tell the truth, but 
 the courts have always deprecated 
 the fact of attorneys being witnesses 
 in a case." He then added other re- 
 marks from which the jury might nat- 
 urally infer that the several attorneys 
 who had testified for the appellants, 
 had acted unprofessionally in so do- 
 ing. It was held that this charge was 
 misleading and erroneous. (Connolly 
 i: Straw, 53 Wis. 645.) See also 
 M'Laine v. Bachelor, 8 Me. 324; 
 Clark V. Kingsland, 9 Miss. 248 ; Pos- 
 ter t/. Newbrough, CO Barb. (N. Y.) 
 
 G45 ; Simonton v. Yongue, 3 Strohh. 
 (S. C.) 538. 
 
 1 Chaffee v. Thomas, 7 Cow. (X.Y.) 
 358. So held where another person 
 indorsed the writ at the request of the 
 attorney (Meserve v. Hicks, 24 N. H, 
 295). But his lien for costs will not 
 disqualify him (Sherman c. Scott, 27 
 Hun (N.Y.) 331). 
 
 2 Chaffee v. Thomas, supra. 
 
 8 McLaughlin v. Shields, 12 Pa. St. 
 283. 
 
 * Dailey v. Monday, 32 Tex. 141. 
 
 ^ Commonwealth v. Moore, 5 J. J. 
 M<arsh. (Ky.) 655; Hall u. Acklen, 9 
 La. Ann. 219. At the present day 
 the contingent character of the fee 
 would probably be no obstacle. In 
 North Carolina, the fact that he in- 
 tends to charge a commission for re- 
 ceiving and remitting the amount re- 
 covered, if any, was held not to dis- 
 qualify him (Slocum v. Newby, 1 
 Murph. (N. C.) 423). 
 
 <5 Braine u. Spalding, 52 Pa. St. 
 247 ; Orphan's Court v. "Woodburn, 
 7 Watts & S. (Pa.) 162. He can ex- 
 plain who were intended to be embraced 
 in a confession of judgment drawn by 
 him ; but he cannot attack the valid- 
 ity of such judgment (McBride v. 
 Bryan, 67 Ga. 584). 
 
§ 54.J PAETIES AND PERSONS INTERESTED. 65 
 
 for such client in another suit, in the absence of proof tliat 
 there was an available defence to the first suit, and that the 
 defendant therein suffered damage by reason of the attorney's 
 neglige nce.i 
 
 Thus we see that the weight of authority, both early and 
 recent, is to the effect that an attorney is a competent wit- 
 ness for his client, as against the mere objection that the 
 relationship of attorney and client exists between the witness 
 and the party ; but as to the imj^ropriety of his entering the 
 witness-box for such a purpose, unless in a case of extreme 
 necessity, there can be little difference of opinion. Indeed, 
 he has, in some instances, been denied the right to do so.^ 
 His attitude as both advocate and witness subjects his testi- 
 mony to suspicion and criticism.^ He should employ another 
 attorney to institute the action in which he expects to be a 
 witness;* or withdraw from the case, when in the course of 
 the trial his testimony becomes necessary to the protection 
 of bis client's interests.^ 
 
 § 54. Bail. — -Persons who have become liable as bail for a 
 defendant have been held to be so far interested in the event 
 as to be incompetent witnesses for him ; for their liability 
 becomes immediate if the judgment be against their principal, 
 and is removed altogether by a judgment in his favor.^ And 
 the rule is the same where the bail deposit a sum of money 
 with the proper officer, to secure the defendant's appearance.''' 
 Thus a surety on a bond, given by one of two joint debtors 
 arrested on mesne process, to procure his release, is not com- 
 petent as a witness for the defendants on the trial of the suit.** 
 But in Wisconsin, it was held in an early case that the bail 
 of one indicted for seduction was not disqualified to be a 
 witness for the defendant on that ground.® 
 
 Under the English common-law practice, if a defendant 
 
 ' Carrington v. Holabird, 17 Conn, den v. Farmer, 7 Id. 580 ; Boissy u. La- 
 
 530. con, 10 Id. 29. 
 
 2 Stones V. Byron, 4 Dowl. & L. 39-3; 6 Lacon v. Higgins, 1 T. R. 164; 3 
 
 Dunn V. Packwood, 11 Jur. 242; Mish- Stark, 182 ; Niles v. Brackett, 15 Mass. 
 
 ler (.'. Baumgardner, 1 Am. L. J. N. s. 378. 
 
 304; 1 Greenl. Ev. (14 ed.) § 386. '' Lacon v. Higgins, supra. 
 
 8 Ross V. Demoss, 45 111. 447. 8 Cates v. Noble, 33 Me. 258. Com- 
 
 * Walsh V. Murphy, 2 Greene (Iowa) yareExparte Hinton, SEich. (S. C.) 97. 
 
 227. 9 Andrews v. State, 4 Wis. 385. See 
 
 ^ Succession of Harkins, 2 La. Ann. also Stow v. Sewall, 3 Stew, & P. (Ala.) 
 
 923 ; Blanc v. Forgay, 5 Id. 695 ; Mad- 07 ; Butler v. Warren, 11 Johns. (N. Y.) 
 
 ' 57; Bell v. Cowgell, 1 Ashm. (Pa.) 7. 
 
66 COMPETENCY. [CHAP. VI. 
 
 desired to examine his bail, the court, on motion, would 
 strike out his name from the bail-jDiece, on the substitution 
 and justification of another surety, or the deposit in court of 
 a sufficient sum.i Again, the bail may be rendered compe- 
 tent by the surrender of the principal.^ 
 
 § 55. Bailor or Bailee. — (1) Bailor. The competency of 
 a bailor at common law, when plaintiff in an action against 
 the bailee, has already been examined.^ We will now con- 
 sider the admissibility of the testimony of the bailor, when, 
 not being a party, he is called as a witness by the bailee ; and 
 then examine as to the competency of the bailee for the 
 bailor, under similar circumstances. 
 
 It is, of course, self-evident, that the bailor may be a wit- 
 ness for the bailee, if he has no interest in the event of the 
 suit ; and it has been so held.* So, in a suit by a bailee of 
 goods, against a carrier, for negligence resulting in the loss 
 or damage of the goods, the bailor, having released the plain- 
 tiff, may testify for him.^ But it has been held that in an 
 action of trover, by the bailee of a chattel against a stranger, 
 the bailor is not a competent witness for the bailee to prove 
 the general property in himself.^ 
 
 (2) Bailee. So, on the other hand, where the bailor is the 
 plaintiff, if the bailee is guilty of a conversion, by selling the 
 goods to the defendant, he is a competent witness for the 
 plaintiff, his interest being exactly balanced.'^ A fortiori he 
 is competent where the goods were forcibly taken from him 
 by the defendant, and the bailor sues to recover them.^ So, 
 also, he may prove the bailor's title where the goods are 
 levied on in his hands as his own property. ^ 
 
 § 56. Bankrupts. — A bankrupt, not being a party to the 
 suit in which he is called to testifj^, or having any legal 
 interest in the event, is a competent witness,!" even though 
 
 iTidd, Pr. 259; BaiUie v. Hole, 3 ^ jjoran t. Portland Steam Packet 
 
 Car. & P. 560; s. c, 1 Moo. & M. 289; Co., 35 Me. 55. Compare Nelson v. 
 
 Whartley v. Fearnley, 2 Chit. 103. Iverson, 24 Ala. 9. 
 
 2 See Pearcey v. Pleming, 5 Car. & o Chesley v. St. Clair, 1 N. H. 189. 
 P.503; Comstockt!. Paie,3Rob. (La.) S. P. Heitzmanu.Divil, llP.i. St.264. 
 440; Allen u. Hawks, 13 Pick. (Mass.) ^ Oliver v. McClellan, 21 Ala. 075. 
 79; Beckley B. Freeman, 15 Id. 468; See supra, §48. CoKiro, Pierce d. Hins- 
 Tompkins u. Curtis, 3 Cow. (N. Y.) dall, 1 Tyler (Vt.) 153. 
 
 251. 8 "vvriglit 0. Ross, 2 Greene (Iowa) 
 
 3 Supra, § 27. 268. 
 
 * Maine Stage Co. v. Longley, 14 Me. " Walmsley v. Hubbard, 24 Tex. 012. 
 444. " Boas v. Hctzel, 3 Pa. St. 298. 
 
§ 56.] PARTIES AND PEESONS INTERESTED. 67 
 
 his assignee be a party ; ^ and if he has received his discharge, 
 and is sued jointly with others, he is a competent witness for 
 the plaintiff, if without interest; and the fact that the plain- 
 tiff consented to his discharge makes no difference.^ So, also, 
 if discharged from a debt, and his sureties for that debt are 
 sued, he may testify for them to show usury in the contract.^ 
 Where the bankrupt is discharged from all liability or in- 
 terest in the subject-matter of a subsequent suit, he may 
 testify therein, even though the demand upon which the suit 
 is founded was omitted, without fraud, from his schedules.* 
 And he may testify as to the correctness of his schedules in 
 such a case.^ But where his assignee is a party, and the 
 object of the suit is to increase the assets, it must appear 
 that the bankrupt witness has no claim to or interest in the 
 surplus, if any, of the bankrupt estate, and that he has re- 
 ceived his allowance ; ^ or else he must release,'^ or offer to 
 release,^ his assignee from all claim to surplus and allowance. 
 It must be understood that the incompetency of the wit- 
 ness for interest in the subject-matter of the suit is not 
 removed by the adjudication in bankruptcy; only the dis- 
 charge does this.^ And where the adjudication is made 
 pending a suit to which the bankrupt is a party, his discharge 
 will not be a bar to his liability for costs upon a judgment 
 obtained subsequently to his discharge. Such liability, 
 therefore, excludes him from being a witness in such suit, on 
 the ground of interest.'® 
 
 1 Wright II. Rogers, 3 McLean Otherwise where his testimony would 
 (IT. S.) 229. tend to decrease the assets (Colgin i-. 
 
 2 Onion i: EuUerton, 19 Vt. 317. Redmond, 20 Ala. 050). 
 
 ' Morse w. Hovey, 1 Sandf. (N. Y.) ^ Dickinson v. Codwise, 1 Sandf. 
 
 Ch. 187 ; Fellows v. American Life (N. Y.) Ch. 214. 
 
 Ins. and Trust Co., Id. 203; Morse u. "Bridges u. Armour, 5 How. 91. The 
 
 Cloyes, 11 Barb. (N. Y.) 100. See also authorities upon the point hero decided 
 
 Carman v. White, 4 Humph. (Tenn.) are not harmouious. The case of Has- 
 
 301. well V. Thorogood, 7 Barn. & C. 705, 
 
 * Strong V. Clawson, 10 111. 346. was decided in the King's Bench in 
 
 6 West V. Creditors, 1 La. Ann. 365. 1828. Tenterden, Ch. J., said : " The 
 
 ^ Oldham v. M'Cormick, 8 Blackf. rules deducible from all the cases arc 
 
 (Ind.) 387; Coleman v. Tebbetts, 20 laid down iu Mr. Deacon's Treatise on 
 
 N. H. 408. See also Houston u. Pre- the Law of Bankruptcij ; and, after 
 
 witt, 8 Ala. 846. stating the rules applicable to cases 
 
 ' Cully U.Ross, 7 Blackf. (Ind.) 312; where the plaintiffs have obtained 
 
 Dean v. Speakman, Id. 317. verdicts, and the defendants have bc- 
 
 8 Frow c. Downman, 11 Ala. 880; come bankrupt before judgment, he 
 
 Bridges r. Armour, 5 How. (U. S.) 91; says: 'With respect to costs upon a 
 
 Coit V. Owen, 3 Desau. (S. C.) 175. judgment of nonsuit, the statute (0 
 
68 
 
 COMPETENCY. 
 
 [chap. VI. 
 
 §57. Debtor or Creditor. — (1) Debtor. The general rule 
 of the common law is, that a debtor, even though a party to 
 the record, is not disqualified, by reason of interest, from 
 
 Geo. IV. c. 16) is wholly silent, mak- 
 ing no prOTision "whatever for the 
 proof of a defendant's costs, whether 
 on a judgment of nonsuit or judg- 
 ment after verdict. It was, indeed, 
 formerly determined that where the 
 nonsuit was before the bankruptcy 
 of the plaintiff the costs might be 
 proved, though the judgment was 
 not obtained till afterwards, on the 
 ground that the costs related back 
 to the nonsuit, by virtue of which the 
 debt might be said to exist before the 
 bankruptcy. But this position is to 
 be found only in two cases, which were 
 impugned by Lord Eldon in Ex parte 
 Hill, 11 Ves. 646, and which were 
 overruled in Ex parte Charles, 14 
 East, 197. And it has since been de- 
 cided, that, where a, defendant ob- 
 tains a verdict, and the plaintiif be- 
 comes bankrupt before judgment is 
 signed, the costs cannot be proved 
 under the commission, on the prin- 
 ciple that no debt arises in such case 
 until judgment is signed (Walker i\ 
 Barnes, 5 Taunt. 778).' That is, I 
 think, a, correct statement of the de- 
 cisions upon the subject. Xow here 
 the plaintiff becomes a bankrupt after 
 the nonsuit, but before judgment was 
 signed. The costs of the cause did 
 not constitute any debt until judg- 
 ment was signed ; for there is no dis- 
 tinction, in this respect, between a 
 case where a defendant obtains a ver- 
 dict, and one where the plaintiff is 
 nonsuited. The verdict or nonsuit 
 only entitles a defendant to tax his 
 costs ; but no debt arises, and no 
 action can be maintained for them, 
 until judgment is signed. The case 
 of Walker v. Barnes is a decisive 
 authority to show that the amount of 
 these costs could not be proved as 
 a debt under the plaintiff's commis- 
 sion; and if that be so, then he is 
 liable to pay them. As to the costs 
 of the reference, there can be no ques- 
 tion. They clearly did not constitute 
 a debt provable under the commis- 
 sion." 
 
 In 1831 the same conclusion was 
 reached in the Common Pleas 
 (Brough !i. Adcock, 7 Bing. 650). 
 Where the debt arose before bank- 
 ruptcy, but a verdict was obtained 
 and costs taxed after, the costs were 
 considered as a part of the original 
 debt, and the certificate was held to 
 extend to both, because both were 
 provable. This was an early case 
 (Lewis V. Piercy, 1 H. Bl. 59). If 
 the verdict, as well as the judgment, 
 is after the bankruptcy, the costs are 
 not provable {Ex parte Pouchier, 1 
 Glyn & J. 385). 
 
 The decisions in the courts of the 
 several States are not altogether har- 
 monious. The following cases hold 
 that a judgment obtained between the 
 time of filing the petition in bank- 
 ruptcy and the granting of the dis- 
 charge, is not barred by the discharge. 
 Bradford u. Rice, 102 Mass. 472; 
 Woodbury v. Perkins, 5 Cush. (Mass.) 
 86 ; Ellis v. Ham, 28 Me. 385 ; Thomp- 
 son V. Hewitt, 6 Hill (N. Y.) 254 ; 
 Kellogg V. Schuyler, 2 Den. (N. Y.) 
 73 ; Holbrook o. Poss, 27 Me. 441 ; 
 Uran v. Hondlette, 36 Me. 15 ; Pike 
 r. McDonald, 32 Me. 418; Eisher r. 
 Eoss, 30 Me. 459; Roden v. Jaco, 17 
 Ala. 344 ; IngersoU v. Rhoades, 1 Hill 
 & D. (N. Y.) 371; Eees v. Butler, 18 
 Mo. 173 ; Leavitt v. Baldmn, 4 Edw. 
 (N. Y.) 289. 
 
 On the other hand, the following 
 authorities maintain that the dis- 
 charge will bar the judgment; and 
 the court will inquire to see whether 
 the original debt be one that would 
 be barred by the discharge. Harring- 
 ton V. McNaughton, 20 Vt. 283 ; Dres- 
 ser V. Brooks, 3 Barb. (N. Y.) 420 
 (denying certain dicta in earlier 
 cases) ; Johnson v. Fitzhugh, 3 Barb. 
 (N. Y.) Ch. 360; Clark v. Rowling, 3 
 N. Y. 216 ; Pox v. Woodruff, 9 Barb. 
 (N. Y.) 498; McDonald v. Ingraham, 
 30 Miss. 389 ; Downer v. Rowell, 20 
 Vt. 397; Dick <■. Powell, 2 Swan 
 (Tenn.) 032; Stratton o. Perry, 2 
 Tenn. Ch. p. 635 ; Eberhardt v. Wood, 
 
§ 57.] PARTIES AND PERSONS INTERESTED. 69 
 
 testifying in an action between two of his creditors, unless 
 he will gain or lose by the decision.^ Thus, where the result 
 of the trial can only determine which creditor the witness 
 shall pay, he is competent;^ but the reverse is true, where, 
 if the party calling him succeed, the witness's debt is paid, 
 while if the other party prevail, his creditor remains unpaid, 
 and the witness is left with a claim to the same amount 
 against an insolvent man. In such a case his interest is not 
 balanced.^ So if he has no interest,* as is the case with one 
 whose debt, without his request, has been assumed by a third 
 person ; he does not thereby become his debtor, and is 
 consequently a competent witness for him, when sued on 
 his promise, to prove the consideration on which it was 
 founded.^ So, also, a minor, whose purchase of goods defend- 
 ant promises to pay, may be the creditor's witness as to the 
 amount and value of the goods and the character of defend- 
 ant's promise. His obligation to defendant is only an hon- 
 orary one.'' Again, a debtor is competent to prove his own 
 fraud ; as where he disposes of property in fraud of creditors, 
 who sue to recover it ; '' and, conversely, if after such a fraud- 
 ulent transaction he sells the property to a bona fide 
 purchaser, he may give testimony to sustain such sale, on 
 being released.^ So, also, he may support the title of a lona 
 fide assignee against the claim of another creditor who 
 attaches the property assigned;^ or against a person who 
 wrongfully converts it.^" 
 
 But where the debtor, is interested, as in an attempt by 
 the creditor to make the debt out of property claimed by a 
 third person ; ^^ or where a sheriff being sued for the escape 
 of the witness, he seeks to testify as to his inability to pay 
 
 Id. 490 ; Harris v. Vaughan, Id. 486 ; ^ Beall v. Ridgeway, 18 Ala. 117. 
 
 Lowry c. Hardwick, 4 Humph. (Tenn.) ^ Sanford v. Howard, 29 Ala. 684. 
 
 188; Monroe v. Upton, 50 N. Y. 593. ' Wisner c. Brady, 11 Iowa, 248. 
 
 See Weeks v. Prescott, 54 Vt. 318. S. P. Philbrook u. Handley, 27 Me. 
 
 1 UpdegrafE v. Rowland, 52 Pa. St. 53 ; Aiken v. Kilburne, Id. 252. 
 
 317; Ferree v. Thompson, Id. 353. ^ Caston v. Ballard, 1 Hill (S. C.) 
 
 - Ohio Life Ins. Co. v. Ross, 2 Md. 406. See Jackson v. Peek, 4 Wend. 
 
 Ch. 25. And see Galway's Appeal, 34 (N. Y.) 300. 
 
 Pa. St. 242. ^ Prince o. Shepard, 9 Pick. (Mass. ) 
 
 3 Danforth v. Roberts, 20 Me. 307. 176. 
 
 4 Gifiord V. Coffin, 5 Pick. (Mass.) i» Etter v. Bailey, 8 Pa. St. 442. 
 447, where the debtor had paid money ii Paul v. Rogers, 5 T. B. Mon. (Ky.) 
 to plaintiff's attorney (the defendant), 164. 
 
 and was called to prove that he had 
 paid it. 
 
70 COMPETENCY. [CHAP. VI. 
 
 the debt ; ^ or where, the suit being against an administrator 
 for money claimed to have been paid to him as such by the 
 witness, his testimony is adduced to prove such payment;^ 
 in all such cases the debtor is an incompetent witness. 
 
 As respects /omi; debtors, it lias been held that one of them, 
 who is not sued, may testify for the plaintiff against the 
 others.^ So, also, after being discharged in bankruptcy, he 
 may become a witness for his co-debtor in an action for the 
 recovery of the joint debt.* 
 
 It has been repeatedly decided that an execution debtor is 
 competent as a witness for the claimant of property taken on 
 the execution.^ So is he competent against the claimant." 
 And in an action against a sheriff for a false return,'^ or in a 
 proceeding against a garnishee on the execution,* or in an 
 action by the sheriff to recover from the purchaser on exe- 
 cution the amount of his bid,^ the execution debtor is a 
 competent witness for the plaintiff. On the other hand, in 
 an action by the execution creditor against the sheriff, for 
 not assigning the bail bond taken by him on mesne process j^'' 
 or for neglecting to satisfy the execution upon goods which 
 had been attached and receipted for at the beginning of the 
 suit ;^^ or for an escape on execution ; ^^ or in debt, for a false 
 return,^^ the execution defendant may testify in favor of the 
 officer. But in an action against the sheriff for wrongfully 
 taking his goods on execution, he cannot be allowed to prove 
 a sale of the goods by him to the plaintiff before the levy." 
 
 1 Griffin u. Brown, 2 Pick. (Mass.) Mo. 520. But see Jones v. Bank of 
 304. Northern Liberties, 44 Pa. St. 253. 
 
 2 Horine v. Horine, 11 Me. G49. 9 Yongue v. Aiken, 3 Strobh. (S. C.) 
 8 Gay V. Gary, 9 Cow. (N. Y.) 44; 533. 
 
 Tliornton v. Lane, 11 Ga. 459. m Newell r. Hoadley, 8 Conn. 381. 
 
 4 Frentress v. Markle, 2 Greene " Pillsbury v. Small, 19 Me. 435. 
 (Iowa) 553. ^2 Bond ^.^ Brady, 7 Blackf. (Ind.) 
 
 5 Clifton ti.Bogardus, 2111.(1 Scam.) 39; Waters v. Burnet, 14 Johns. 
 .■52; Holmanr. Arnett, 4 Port. (Ala.) (N. Y.) 362. 
 
 03 ; Hankins v. Ingols, 4 Blackf. (Ind.) 13 Limpus v. State, 7 Blackf. (Ind.) 
 
 35 ; Bradbury v. Dougherty, 7 Id. 467 ; 43. But see Leiper v. Gewin, 8 Ala. 
 
 Ewing i;. Cargill, 21 Miss. 79; Clark 326. 
 
 V. Watson, 50 Pa. St. 317. But see "Burns w. Taylor, 3 Port. (Ala.) 187. 
 
 Edwards v. Musgrove, Dudley (Ga.) As to the competency of the debtor to 
 
 219 ; "Williams v. Kelsey, 6 Ga. 305. testify as affected by his insolvency, sec 
 
 « Converse v. McKee, 14 Tex. 20. Smith .;. Vertress, 2 Bush (Ky.) 63; 
 
 ' Taylor v. Commonwealth, 3 Bibb Bean v. Bean, 12 Mass. 20 ; Clark u. 
 
 (Ky.) 356. Gordon, 13 Mete. (Mass.) 434; Byrne 
 
 8 Scales V. Southern Hotel Co., 37 v. Becker, 42 Mo. 204 ; Davis v. Cram, 
 
 4 Sandf. (N. Y.) 355. 
 
§ 57.] PARTIES AND PEKSONS INTERESTED. 71 
 
 (2) Creditor. The general creditor of a plaintiff is not 
 incompetent to testify for him, in the absence of some legal 
 interest in a right to the fund to be recovered, merely because 
 he expects to be paid out of that fund ;i although he swears 
 that his prospects of getting his debt will be increased by 
 plaintiff's recovery,^ and it appears that plaintiff has no 
 means of paying unless he does recover.^ But the fact that 
 the witness is a creditor of the plaintiff, in such cases, may 
 be shown as affecting his credibility.* So, also, he is often 
 a competent witness, for his own protection, where no legal 
 interest exists ; as where a surety for the del)t asks to be re- 
 lieved, alleging a new agreement between the principal and 
 the creditor;^ or where he seeks to show the fraudulent char- 
 acter of a conveyance of his property executed by the debtor.'' 
 
 A petitioning creditor in bankruptcy is a competent 
 witness to prove his own debt in an action between other 
 parties ;'' and it is no objection to his competency, that a 
 recovery would tend to increase the fund out of which he is 
 to be paid.** So, also, he may prove fraud in order to prevent 
 the debtor's discharge under the insolvent laws,^ or to impeach 
 his discharge in lanhrwptcy ;'^^ but not, it would seem, in a 
 suit to avoid an assignment for the benefit of creditors, one 
 of whom he is.^^ 
 
 Where the indebtedness is that of the estate of a deceased 
 person, the creditor is held incompetent even to show the 
 dignity of his contract with the decedent, as affecting only 
 the priority of his claim. ^^ But he can prove his debt in sup- 
 port of the administrator's petition for leave to sell real estate 
 for the payment of debts ;13 and after such a sale obtained at 
 his own instance, he is competent for the purchaser, to prove 
 that the debt to pay which the land was sold was a just debt.^* 
 
 1 Warne v. Prentiss, 9 Mo. 544. Zab. (N. J.) 321. Contra, Carr v. Hil- 
 
 2 Illinois Mut. Fire Ins. Co. </. Mar- ton, 1 Curt. (tJ. S.) 390. 
 
 seilles Manuf. Co., 6 111. 236. « Green's case, 2 Dall. (U. S.) 268. 
 
 ^ Noyes v. Sturdivant, 18 Me. 104. i" Cutler v. Taylor, 1 Sandf. (N. Y.) 
 
 4 McClure v. King, 13 La. Ann. 141. 593. 
 
 ^Bartlow u. Bond, 3 Dana (Ky.) " Jacks i'. Nichols, 3 Sandf. (N. Y.) 
 
 591. Ch. 313. But see Duel u. Fisher, 4 
 
 ^Lillie u. Wilson, 2 Root (Conn.) Den. (N. Y.) 515. 
 
 517. 12 Latimer v. Sayre, 45 Ga. 468. 
 
 ' Farrington v. Farrington, 4 Mass. i^ Chaniberlinii.Chamberlin,4 Allen 
 
 237. But see Stone v. Stone, 1 Ala. (Mass.) 184. 
 
 582. 14 Iludgin v. Hudgin, 6 Gratt. (Va.) 
 
 8 Delaware &c. R. R. Co. c. Irick, 3 .320. 
 
72 COMPETENCY. [CHAP. VI. 
 
 So also, lie may testify to increase the fund out of which his 
 debt is to be paid, provided the estate be a solvent one ; ^ but 
 not so if the estate be insolvent.^ 
 
 A judgment creditor of one presumably insolvent may 
 testify for him in a suit for the recovery of land ;^ or for the 
 administrator of his intestate debtor, who sues to recover a 
 debt due the estate ; * or in a proceeding to try the right of 
 property levied on, if he has no direct interest;^ or in an 
 issue between two other judgment creditors to try the valid- 
 ity of a judgment in favor of one of them.^ And where, 
 after a sale on execution, a third person claims the property', 
 the execution creditor may testify in support of the title of 
 the execution debtor." 
 
 § 58. Donor or Donee. — • The donor is a competent witness, 
 at common law, in favor of the donee, or one holding under 
 him, in a controversy involving the title to the gift.^ He is 
 competent, so far as interest is concerned, though the donee 
 be his child, and the validity of the gift be attacked by the 
 donor's creditors.^ 
 
 In Massachusetts, it is held that the donee of a promissory 
 note, given to him causa mortis, may testify in an action 
 brought by him thereon in the name of the administrator of 
 the donor.i" But in New York, it was held, in chancery, that 
 the donee of a gift causa mortis, who has received and dis- 
 tributed it to other participants, was not a competent witness, 
 in behalf of himself or the others interested therein, to sustain 
 it, in a suit by the executors of the donor against the recipi- 
 ents of the fund.^i 
 
 § 59. Grantor or Grantee. — (1) Grantor. As a general 
 rule, a grantor of land, who has no interest in the suit, and 
 
 ' Foster u. Wallace, 2 Mo. 231 ; e Brown v. Parkinson, 66 Pa. St. 
 
 Boyer D. Kendall, 14 S. fePv. (Pa.) ITS. 336. See also Seitzingeru. Eidgway, 
 
 2 Marre v. Ginochio, 2 Bradf . (X. T.) 4 AVatts & S. (Pa.) 472 ; Guignard v. 
 
 165; Flinn r. Chase, 4 Den. (N. Y.) 85. Aldrioh, 10 Eich. (S. C.) Eq. 253. 
 
 Compare Moore u. Taylor, 44 N. H. ' Eowo v. Cockrell, 1 Bail. (S. C.) 
 
 370. As to the competency o£ attach- Eq. 126. 
 
 {njr creditors, see Jarboe .;. Colvin, 4 * Humphries!). Dawson, 38 Ala. 199; 
 
 Bush (Ky.) 70; Graves !'. Blanchard, Gunn r. Mason, 2 Sneed (Tenn.) 637. 
 
 4 How. (N. Y.) Pr. 300. s Easly v. Dye, 14 Ala. 158. S. P. 
 
 » Jones V. Brownfield, 2 Pa. St. 55. Moore r. M'Kie, 13 Miss. 238. 
 
 * Nicholson v.Frazier, 4 Harr. (Del.) i" Bates v. Kempton, 7 Gray (Mass.) 
 
 206. 382. 
 
 5 Lothrop u. Wightman, 41 Pa. St. " Thorp v. Amos, 1 Sandf. (N. Y.) 
 
 ■2'AI. Ch. 26. 
 
§ 59.] PARTIES AND PEESONS INTERESTED. 73 
 
 ■who has made no covenants, is a competent witness, ^ for 
 merely being in a chain of title will not disqualify a witness.^ 
 The title to the premises in question not being in issue, it is 
 no objection to the witness that he is the grantor of the party 
 calling him.3 The deed not being in evidence, the grantor is 
 presumed competent to testify concerning it, and the burden 
 of proof of his interest is on the party objecting to him as a 
 witness.* Thus, he may testify in support of the title de- 
 rived under the deed,^ where a third person seeks to eject 
 his grantee;^ and where both parties claim the land under 
 the same title, the original grantor may testify for either.'' 
 He may prove the execution of the deed,^ and is competent 
 for tliat purpose even though he asserts that the instrument 
 is invalid.^ He may testify as to the situation of the prem- 
 ises at the time of the grant ; i" and explain the character of 
 a possession adverse to his, at a given time ;^i but in Missouri 
 he cannot be a witness to change, alter, or qualify the effect 
 or operation of his conveyance.^''^ 
 
 Where the validity of the conveyance is attacked, the 
 grantor, if without interest, is a competent witness to im- 
 peach it.^ Thus, iu such a case, he may testify that the deed 
 was obtained by fraud ; i* or that no consideration passed. ^^ 
 He is competent either to prove or disprove the fraud — the 
 objection goes to his credit, not to his competency. ^^ 
 
 A grantor by deed of general warranty is a competent 
 
 ' Herbert v. Herbert, 1 111. 278. is Norton v. Linton, 18 Ala. 690 ; Sims 
 
 2 Myers v. Brownell, 1 D. Chip. (Vt.) v. Killen, 12 Ala. 497 ; Hudson v. Hul- 
 455. bert, 15 Pick. (Mass.) 423; Hadduck 
 
 3 Hull V. Fuller, 7 Vt. 106. v. Wilmarth, 5 N. H. 181 ; Simmons v. 
 
 4 "Wright V. Carillo, 22 Cal. 595. Parsons, 1 Bailey (S. C.) 62. 
 
 5 Gratz V. Ewalt, 2 Binn. (Pa.) 95 ; " Lloyd v. Higbee, 25 111. 603; Gage 
 Cain V. Henderson, Id. 108. v. Gage, 25 111. 603. 
 
 « Doe V. Jackson, 10 Miss. 494. S. P. ^^ Reeves v. Shry, 39 Tex. 634. To 
 
 Hall V. Gittings, 2 Har. & J. (Md.) 380. the contrary, see Jackson v. Leek, 19 
 
 ^ Roberts v. Whiting, 10 Mass. 186; Wend. (N. Y.) 339, where, however, he 
 
 Porter v. Robinson, 3 A. K. Marsh, was permitted to prove that the deed 
 
 (Ky.) 253. was forged. 
 
 8 Smith V. Morrow, 7 J. J. Marsh. i^ Jackson v. Frost, 6 Johns. (N. Y.) 
 
 (Ky.) 442. 135. But see Strike b. McDonald, 2 
 
 " Swift u. Fitzhugh, 9 Port. (Ala.) Har. & G. (Md.) 191. As to his com- 
 
 39. petency as a witness to show a trust, 
 
 1" Bakeri'.SandersoiijSPick. (Mass.) or to prove that the deed was intended 
 
 348. to operate as a mortgage, see Barrett 
 
 iiNicholsu.Hotchkiss,2Day(Conn.) ■/. Carter, 3 Lans. (N. Y.) 68; Kronk 
 
 121. V. Kronk, 4 Watts & S. (Pa.) 127; Gil- 
 
 1- Bruce v. Simms, 34 Mo. 246. lespie v. Miller, 37 Pa. St. 247. 
 
74 COMPETENCY. [CHAP. VI. 
 
 witness in an action involving the title to the land, between 
 his grantee and. an execution creditor of the grantor.^ He 
 is a good witness provided the title set up by the adverse 
 party be not in conflict with that which he has conveyed 
 and is called to sustain.^ So, where he warrants the title 
 against all persons claiming under him, he may testify in his 
 grantee's action against one who does not so claim, as he 
 cannot, in such case, be interested in the event.^ Such 
 grantor is also competent to testifj^ against liis grantee, where 
 the latter is charged hj a third person with trespass;* or, to 
 show that he had conveyed, by mistake, a greater interest in 
 the land than he possessed ; ^ in such cases he testifies against 
 interest, his safety lying in the validity of his convej^ance. 
 Such is the case also, where he is called to testify in favor of 
 one to whom he has quit-claimed, and against his grantee of 
 the same land with Avarranty.'^ But in many cases it is held 
 that he cannot testify in support of the title he has conveyed, 
 until he has been released from the obligation of his cov- 
 en antJ 
 
 (2) Grrantee. The grantee is a competent witness at com- 
 mon law, to prove that the deed was delivered to a third 
 person on a condition to be performed, and that it had never 
 been delivered to him.** So also, he may prove that the deed 
 was made to defraud creditors ; ^ and he is also a competent 
 
 ' Blaisdell v. Covvell, 14 Me. 370. Snell, 4 Cush. (Mass.) 504; Cooper v. 
 
 2 Prescott V. Hawkins, 22 N. H. 191 ; Granberry, 33 Miss. 117 ; Dayton v. 
 
 Harris v. Fletcher, 10 Id. 20 ; Goodman Newman, 19 Pa. St. 194 ; Ellis v. Pon- 
 
 V. Losey, 3 Watts & S. (Pa.) 526. ton, 32 Tex. 434. See also Jackson 
 
 8 Twambly v. Henley, 4 Mass. 441 ; y. Root, 18 Johns. (N. Y.) 60 ; Ken- 
 
 M'Clain v. Gregg, 2 A. K. Marsh, dall u. Field, 14 Me. 30. As to the 
 
 (Ky.) 454; Sweetzer v. Meece, 6 Binn. competency of grantors by quit-claim 
 
 (Pa.) 500; Beach v. Sutton, 5 Vt. 209. deed, see Taylor y. Luther, 2 Sumn. 
 
 See also Beers v. Broome, 4 Conn. (U. S.) 228; Flogg v. Mann, Id. 486; 
 
 247 ; Robertson u. Mosson, 26 Tex. 248. Lay v. Hayden, 2 Root (Conn.) 317 ; 
 
 * Van Nuys v. Terhune, 3 Johns. Kline v. Beebe, G Conn. 494 ; Rogers 
 
 (X. Y.) Cas. 82. y. Turley, 4 Bibb (Ky.) 355; Jackson 
 
 6 Stewart v. Chadwick, 8 Iowa, 463. v. Hubble, 1 Cow. (N. Y.) 613. Of 
 
 But see Erb v. Underwood, 3 Yeates grantors by deed of trust, see Stew- 
 
 (Pa.) 172. art u. Fowler, 3 Ala. 629; Hodge c. 
 
 15 Wise f. Tripp, 13 Me. 9. Other- Thompson, 9 Ala. 131 ; PYowr. Down- 
 wise, where both conveyances are with man, 11 Ala. 880 ; Kirksey v. Dubose, 
 warrantry, Jackson u. Hallenback, 2 19 Ala. 43 ; Damerou v. Williams, 7 
 Johns. (N. Y.) 394. Mo. 138 ; Keiser v. Moore, 14 Mo. 28. 
 
 ' Lester v. White, 44 111. 404 ; Ham- 8 Jackson v. Sheldon, 22 Me. 569. 
 
 ilton r. Doolittle, 37 111. 473; Wall v. s Croft v. Arthur, 3 Dessau. (S. C.) 
 
 Kelson, 3 Litt. (Ky.) 395; Field u. 223; Hancock y. Koran, 15 Tex. 507. 
 
§ 60.] PARTIES AND PERSONS INTERESTED. 75 
 
 ■witness for the defendant (grantor) in such a case, if it is 
 not shown that he participated in such fraudulent purpose, 
 or was cognizant thereof, nor that the property, or the money 
 received on the sale thereof, is still in his hands. ^ And one 
 of two grantees claiming under the same deed, or covenant, 
 may generally testify for the other, suing or defending in 
 respect of the land.^ But if the grantee be interested in the 
 event, he is incompetent : this is the case where a trustee has 
 an interest under a trust deed both for himself and for credi- 
 tors ;^ or where the land was subject to attachment at the 
 time of the grant, and the attachment is sought to be en- 
 forced subsequently.* 
 
 § 60. Guardian or 'Ward. — (1) Cruardian. At common law 
 a guardian of an infant was not deemed a competent witness, 
 generally, in his own behalf, on the final settlement of his 
 accounts.® And his incompetency extended to actions in 
 which the ward was a party plaintiff or defendant ; ^ and to 
 actions by the guardian, in his own name, to enforce con- 
 tracts made by him. for the ward's benefit.''' So, also, a 
 guardian ad litem or next friend of an infant plaintiff was 
 deemed incompetent for the plaintiff whom he represented.^ 
 
 But this rule was not without exceptions : thus the guar- 
 dian of an infant testatrix was admitted to prove her compe- 
 tency to make a will;^ so was a guardian who sued for 
 damages for the abduction of the ward, to wliose benefit the 
 recovery would inure ; ^° and a former guardian, who had 
 fraudulently released a mortgage belonging to the ward, was 
 permitted, in an action by his successor to annul such 
 
 1 Johnson v. Johnson, 3 Mete, bott, 42 Ala. 499; Bogia u. Darden, 
 (Mass.) 6.3. 45 Ala. 269. 
 
 2 Ford u. Bronaugh, 11 B. Men. « gtein c. Robertson, 30 Ala. 280 ; 
 (Ky.) 14; Cheswell a. Eastham, 16 Hungerford v. Bourne, 3 Gill & J. 
 N, H. 296. {Md.)133. Con(™, Todd j). Dysart, 23 
 
 8 Selser v. Ferriday, 21 Miss. 698. Tex. 590. 
 
 4 Beach u. Packard, 10 Vt. 96; ' Murphy v. Hubble, 2 Dut. (Ky.) 
 Schillinger v. McCann, 6 Me. 364. 247. 
 
 See also Leib v. Childs, 3 Pa. L. J. « Pryor v. Ryburn, 16 Ark. 671 ; 
 
 Rep. 70, where the land was con- Hahn v. Van Doren, 1 E. D. Smith 
 
 veyed subject to ground rent, the (N.Y.) 411. Contra, Murphy u. Mur- 
 
 recovery of arrearages of which was phy, 24 Mo. 526 ; McCullough v. Mc- 
 
 the object of the suit. Cullough, 31 Id. 226. 
 
 5 Padgett .,•. Padgett, 41 Ala. 382; « Howard v. Coke, 7 B. Mon. (Ky.) 
 but he was made competent in Ala- 655. 
 
 bama by the act of Feb. 14, 1867 ; " Brown r. Crockett, 8 L. Ann. 30. 
 Ala. Rev. Code, § 2704; Brand v. Ab- 
 
76 COMPETENCY. [CHAP. VL 
 
 release, to testify that liis admission, though in an authentic 
 act, that the ward's claim had been paid, was untrue.^ Of 
 course, a guardian or |>roc/w'eM ami, like any other interested 
 witness, could, in a proper case, be released for the purpose 
 of using him as a witness.^ And even if incompetent for 
 his ward, yet where his testimony was addressed to the 
 court, and was adverse to the ward's interest, it was held 
 that the validity of the decree in the cause would not be 
 affected by its admission.^ 
 
 (2) Ward. In South Carolina, it was held that in an 
 action on an administrator's bond, the plaintiff, a minor, and 
 his guardian were incompetent to testify as to the value of 
 the distributive share of the deceased's estate claimed.* But 
 in Missouri it was decided that in a suit by a guardian to 
 recover money of an intestate estate, in the hands of an 
 administrator, the wards were competent to show his indebt- 
 edness to their guardian, as they had no right to the par- 
 ticular sum due, as their own absolute property.^ 
 
 § 61. Heirs, Devisees, Legatees, and Next of Kin. — (1) 
 Heirs. The general rule was that the heirs of a deceased 
 person could not testify in a suit in which the estate of the 
 decedent was interested, unless it was shown affirmatively 
 that they had no interest in the event of the suit.'' Thus, in 
 an action by an executor, the heir was not allowed to be a 
 Avitness for the plaintiff;' and the rule was adhered to even 
 where the proposed witness released his share in the debt 
 sued for, his liability for costs still remaining undischarged.^ 
 He was held incompetent in such a case, although he stated, 
 on his voir dii-e, that he had received the full amount of his 
 distributive share, for which he gave his receipt to the 
 administrator, the receipt not being produced;^ but he was 
 competent for the defendant, and being called by him, could 
 
 ^ Kemp V. Bowley, 2 La. Ann. 316. ^ Bowman v. Stiles, 34 Mo. 141. 
 
 See also Waddel v. Moore, 2 Ired. " Fagin v. Cooley, 17 Ohio, 44. 
 
 (N. C.)L. 261; Givens ;;. Davenport, ^ "White v. Derby, 1 Mass. 2.39; 
 
 8 Tex. 451. Sawyer v. Tappan, 14 N. H. 352. To 
 
 '■' Harvey v. Coffin, 5 Blackf. (Ind.) tlie contrary, Gunnison v. Lane, 45 
 
 566. Me. 165 ; Butt v. Butt, 1 Ohio St. 222. 
 
 8 Quinn v. Moss, 12 Sm. & M, (Miss.) 8 Baxter v. Buck, 10 Vt. 548. See 
 
 365. also Abercrombie v. Hall, 6 Ala. 657'; 
 
 * Ordinary v. Bracey, 2 Bay (S. C.) Cox v. Wilson, 2 Ired. (N. C.) L. 234. 
 
 542. 9 Brown v. Hicks, 1 Ark. 232. 
 
§ Gl.J PAETIES AND PERSONS INTEKESTED. 77 
 
 be cross-examined by the plaiatiff as to all matters pertinent 
 to the issue.i 
 
 In applying these principles, the common-law courts held 
 that the heirs of a deceased mortgagor were incompetent to 
 prove that an assignment by the deceased was without con- 
 sideration, and void; for they were directly interested in the 
 matter, as their title as heirs would be established by setting 
 aside the assignment;^ and on the trial of a suit between 
 one of the heirs and a devisee under the will, the remaining 
 heirs were held incompetent to testify against the devisee, 
 although, prior to the institution of the suit, they had con- 
 veyed their interest in the subject-matter to the sole party of 
 record.^ In Louisiana, it is held that descendants cannot 
 testify in civil cases for or against their ascendants.* 
 
 Upon the question of the probate of the will, the heirs 
 were held competent ; ^ and so were they in a proceeding to 
 try the validity of a will giving the widow a larger share of 
 the estate than the statute of distribution would have given 
 her ;^ and also on appeal from an allowance of probate J 
 
 So, also, in ejectment, one of several heirs in whose name 
 a demise had been laid, but which had been stricken out of 
 the declaration, was admitted to testify for the plaintiff;* 
 and one of two co-heirs who had covenanted in a deed of 
 partition that each should hold his own portion of the land 
 free from all claim of the other, was held competent for the 
 other heir in an action between the latter and a third per- 
 son.8 In several cases it is held that an heir at law who has 
 received his portion, and executed a release of his interest,i° 
 or who has transferred his entire interest in the estate to a 
 third person,^! may testify in favor of the estate. 
 
 (2) Devisees. A devisee under a prior will, which might 
 take effect in case of the setting aside of a subsequent will, 
 
 ' Cox V. Wilson, supra. and they were admitted to testify 
 
 2 Randall u. Phillips, 3 Mason (U. S.) against the will only, not to sustain it. 
 
 378. 7 Wheeler v. Towns, 43 N. H. 56. 
 
 ^ Asay V. Hoover, 5 Pa. St. 21. b Cardwell (■. Sprigg, 1 B. Mon. (Ky.) 
 
 * Succession of Weigel, 18 La. Ann. 369. 
 
 49. 9 Morris v. Harris, 9 Gill (Md.) 19; 
 
 5 Nash V. Reed, 46 Me. 168; Me. Harris v. Morris, 4 Md. Ch. 529. 
 
 Rev. Stat 1857, ch. 82, § 83. w Spann r. Ballard, 1 Rice (S. C.) 
 
 " Roberts u. Trawick, 17 Ala. 55. 440. 
 
 In this case tlie witnesses were the ^i Sylvester v. Downer, 20 Vt. 355 ; 
 
 heirs of the widow, she being deceased, Reed v. Gilbert, 32 Me. 519. 
 
78 COMPETSNCY. [CHA?. VI. 
 
 is incompetent as a witness against the latter;^ so, if liis 
 share in tlie estate under the statute of distribution, or as 
 heir at law, would be greater than the share devised to him, 
 he cannot, at common law, testify against the will ; ^ and he 
 is incompetent to testify for the executor in an action against 
 the latter to charge the lands devised ; and this even though 
 he has released his interest under the will.^ But it was held 
 in an early case in New York, that in ejectment against a 
 devisee, a co-devisee, and tenant in common with the de- 
 fendant, not in actual possession, and who, on his voir dire, 
 stated that he did not know that he was interested, might be 
 a witness for the defendant.* And the better opinion seems 
 to be that even at common law, the mere fact that the wit- 
 ness will take a devise or legacy under a will does not 
 render him incompetent to testify in proceedings to establish 
 or prove the will.^ 
 
 (3) Distributees. Prima facie a distributee is incom- 
 petent at common law where his testimony will tend to 
 increase the funds of the estate ; ^ or where his distributive 
 share will be affected by the event of the suit.'^ But if the 
 distributee has received a portion of his share, or sold or 
 assigned it to another, he may become a competent witness, 
 by releasing all his interest in the estate to the adminis- 
 trator.^ And cases are not lacking which hold the dis- 
 tributee competent even without a release of interest.^ 
 
 ' Hall V. Hall, 17 Pick. (Mass.) 373. ,,. Spedden, 5 Md. 433. And see Penn 
 
 = Canfield v. Ball, 4 Halst. (N. J.) „■. Watson, 20 Mo. 13. 
 
 Eq. 582. ' Foster v. N'owlin,4 Mo. 18; Carter 
 
 ' Norris v. Johnston, 5 Pa. St. 287. v. Graves, 7 Miss. 9; Spears v. Burton, 
 
 * Jackson v. Nelson, 6 Cow. (N. Y.) 31 Miss. 547. See also Lemore v. 
 
 248. Nuckolls, 37 Ala. 062 ; s. c, 1 Ala. Sel. 
 
 ^ Gamache r. Gamtis, 52 Mo. 287. Cas. 591 ; Kirksey v. Kirksey, 41 Ala. 
 
 Contra, Lee v. Dill, 39 Barb. (N. Y.) 626. 
 
 516. And see Winant v. Winant, 1 ^ j-jall v. Alexander, 9 Ala. 219 ; 
 
 Murph. (N. C.) 148, where one to Dent r. Portwood, 17 Ala. 242 ; Hern- 
 
 whom the testator devised permission don u. Givens, 19 Ala. 313; Coate ?■. 
 
 " to live six months in his house if she Coate, 37 Ala. 695; s. c, 1 Ala. Sel. 
 
 chooses" was admitted to prove the Cas. 627; Boon u. Nelson, 2 Dana 
 
 will as to real estate. (Ky-) 391; Boynton v. Turner, 13 
 
 15 McGuire v. Shelby, 20 Ala. 456; Mass. 361. But see to the contrary 
 
 Andersonr. Primrose, Dud. (Ga.) 216; Smith v. Morgan, 8 Gill (Md.) 133; 
 
 Denny v. Cooker, 2 Bibb (Ky.) 427 ; King v. King, 1 Stock. (N. J.) 44. 
 
 Cox r. McKcan, 56 Pa. St. 243; Smith » See Broadhead v. Jones, 39 Ala. 
 
 i: Morgan, 8 Gill (Md.) 133; Dillard 96; Shine v. Redwine, 30 Ga. 780; 
 
 <>. Wright, 11 Sm. & M. (Miss.) 455; Swoffiord r. Gray, 8 Ind. 508; Jones v. 
 
 Contra, Stein v. Weidman, 20 Mo. 17 ; Jones, 36 Md. 447 ; Richmond v. Cross, 
 
 Perry v. Maguire, 31 Mo. 287 ; Stewart 13 Mo. 75. 
 
§G1.J 
 
 PARTIES AND PERSONS INTERESTED. 
 
 .9 
 
 (4) Legatees. The same rule applies to legatees, that is 
 to say, they are prima facie deemed incompetent to testify 
 in favor of the fund out of which their legacies are to be 
 derived, either to increase or prevent diminution of the 
 fund.i Thus it has been repeatedly held that a legatee is 
 not a competent witness for the executor, so long as his 
 legacy is subject to abatement. ^ Nor is he competent to 
 testify against the will where it is for his interest to defeat 
 it ; 2 but the mere fact that the will gives him a legacy does 
 not render him incompetent to testify against the validity 
 of the will ; * or to establish a will which he himself de- 
 stroyed.^ 
 
 Where the legacy has been paid,^ or the legatee has re- 
 leased his interest,^ he becomes competent notwithstanding 
 his remote liability to creditors, or for the costs of the suit 
 in which he is called as a witness.^ 
 
 1 Robertson !•. Allen, 16 Ala. 106; 
 Master v. Zimmerman, 7 111. App. 156. 
 
 In trover by the executor for a con- 
 version of goods since testator's de- 
 cease, a legatee may testify, the event 
 of the suit having no tendency to 
 increase or diminish the assets. Car- 
 lisle V. Burley, 3 Me. 250. So he may 
 support the will, where his interest is 
 adverse to that of the party calling 
 him. Clark !). Vorce, 19 Wend. (N.Y.) 
 2.32. S. P. Nunn v. Owens, 2 Strobh. 
 (S. C.) 101. And a specific legatee 
 who can have no interest in the resi- 
 duum is a competent witness to prove 
 the delivery of goods, unless there is 
 a reasonable probability that his leg- 
 acy must be resorted to for the pay- 
 ment of debts. Learey v. Littlejohn, 
 1 Murph. (N. C.) 406. In Levers v. 
 Van Buskirk, 4 Pa. St. 309, a legatee 
 in a will more than 20 years old, which 
 charged his legacy on the land, was 
 held a competent witness for the de- 
 visees ; it appearing that there was 
 other property, and no evidence that 
 he could be called upon to refund ; 
 and in Tucker v. Whitehead, 59 Miss. 
 594 (a recent case) the principal leg- 
 atee was allowed to testify upon an 
 issue devisavit vel non. 
 
 2 Strong V. Finch, Minor (Ala.) 256. 
 La Rue v. Boughaner, 1 South. (N. J.) 
 
 104; Hedges v. Boyle, 2 Halst. (N.J.) 
 68; Campbell v. Tousey, 7 Cow. 
 (N. Y.) 64; Temple v. EUett, 2 Munf. 
 (Va.) 452. 
 
 ' Roberts u.'Trawick, 13 Ala. 68. 
 
 * Leslie p. Sims, 39 Ala. 161 ; Lan- 
 dis V. Landis, 1 Grant (Pa.) Gas. 248. 
 
 6 Wyckoff u. Wyckoff, 1 G. E. Gr. 
 (N. J.)40L 
 
 = Wilcocks V. Phillips, Wall., Jr. 47 ; 
 Clealand v. Huey, 18 Ala. 343 : John- 
 son V. Lewis, 8 Ga. 460; Mesick r. 
 Mesick, 7 Barb. (N. Y.) 120; Cornell 
 V. Vanartsdalen, 4 Pa. St. 364. 
 
 ' Martin r. Mitchell, 28 Ga. 382 ; 
 Higgins !'. Morrison, 4 Dana (Ky. ) 100; 
 Whelpley i'. Loder, 1 Demarest (N. Y.) 
 368; Steininger a- Hoch, 42 Pa. St. 
 432. 
 
 8 In an early Connecticut case it is 
 held that a residuary legatee cannot 
 be admitted as a witness to increase 
 the fund on which the residuum de- 
 pends, and a release by him of a par- 
 ticular thing appertaining to this fund, 
 which may be the subject of the suit 
 on trial, does not discharge his inter- 
 est. Austin V. Bradley, 2 Day (Conn.) 
 460. But an assignment of his whole 
 interest in the- estate will make him 
 competent. Freeman v. Spalding, 12 
 N. Y. 373. See Chap, vii., infra. 
 
80 COMPETENCY. [CHAP. VI. 
 
 § 62. Jurors. ■ — (1) G-rand Jurors. The principle upon 
 which jurors, grand and traverse, are excluded from the 
 witness-box would rather seem to rest upon grounds of 
 public policy, than upon the fact of interest on the part of 
 the witness, or upon the fact that he is sworn to secrecy .^ 
 Under the English practice a grand juryman may be ques- 
 tioned as to matters laid before the grand jury in the course 
 of a criminal proceeding. Thus in an action for malicious 
 prosecution, where the question was whether the defendant 
 was the prosecutor, Lord Kenyon allowed the plaintiff's 
 counsel to prove the affirmative by the oath of a grand juror.^ 
 But the King's Bench refused a grand juror's evidence as to 
 the number of grand jurors who concurred in finding an 
 indictment;^ or to explain whether certain words were inten- 
 tionally or accidentally blotted out in the indictment.* If 
 one of the grand jurors has any particular knowledge on the 
 subject under investigation, arising from his being in a cer- 
 tain trade or otherwise, he may be sworn and examined as a 
 witness.^ 
 
 Under the English law it seems to be doubtful whether 
 a grand juror may testify as to what a witness said before the 
 grand jury,® but his competency to do this seems to be set- 
 tled in several of the States.'^ 
 
 1 See remarks of Lord Ellenborough whether twelve of the grand jury 
 in Watson's case, 32 How. St. Tr. concurred in the finding, the certifl- 
 107. And see Eenwzck's case, 5 Harg. cate of the foreman not being con- 
 st. Tr. 72 ; also 12 Vin. Abr. Ev, 5, elusive evidence of that fact. Low's 
 where a case is cited in which the case, 4 Me. 439 ; McLellan v. Eichard- 
 evidence of the clerk of the grand son, 1 Shep. (Me.) 82 ; Commonwealth 
 jury was rejected. v. Smith, 9 Mass. 107. 
 
 2 Sykes v. Dunbar, 2 Selw. N. P. * R. v. Cooke, 8 Car. & P. 584. And 
 (Wheat.) 815; followed Freeman v. see also Vin. Abr. Ev. H.; 4 Bl. Com. 
 Arkell, 1 Car. & P. 137. See also to 126, and note by Mr. Christian, 
 same effect Sands v. Robison, 20 Miss. ^ R. v. Rosser, 7 Car. & P. 648. See 
 704 ; Bumham v. Hatfield, 5 Blackf . also Manley v. Shaw, C. & Marsh, 361 ; 
 (Ind.) 21; I-eople v. Young, 31 Cal. 1 Phill. Ev. (4 Am. Ed.) 15. 
 
 564; White v. Fox, 1 Bibb (Ky.) 6 i2 Vin. Abr. 20, Ev. H. ; Clayt. 84, 
 
 369 ; Eocoo v. State, 37 Miss. 357 ; pi. 140. 
 
 State V. McDonald, 78 N. C. 346. So ' Thus a grand juror may be called 
 
 also he may prove that a certain to show that a witness who has just 
 
 person did not testify before the testified on the trial swore differently 
 
 grand jury. Commonwealth f. Hill, before the grand jury. State v. Ben- 
 
 11 Cush. (Mass.) 137. ner, 64 Me. 267; Canton v. State, 13 
 
 3R. V. Marsh, 6 Ad. and E. 236; Tex. App. 139; overruling Ruby c 
 
 Sykes v. Dunbar, 2 Selw. N. P. 815 State, 9 Id. 353 ; Gordon v. Comraon- 
 
 [1059], It is held in Maine and Mas- wealth, 92 Pa. St. 210; s. u., 37 Am. 
 
 sachusetts that he may testify as to Eep. 672; 1 Crim. L. Mag. 583. In 
 
§62.] 
 
 PAETIES AND PERSONS INTERESTED. 
 
 81 
 
 (2) Petit Jurors. At common law, petit or traverse 
 jurors were not permitted to disclose, upon the witness-stand, 
 the proceedings incident to their retirement and arrival at 
 A verdict ; or to prove misbehavior of any of their number in 
 regard to the verdict. The rule was jiot only founded upon 
 grounds of general public policy, but was intended to protect 
 parties against fraud. The early English practice of admit- 
 
 tlie case last cited, which was decided 
 by the Supreme Court of Pennsylva- 
 nia in January, 1880, the foreman of 
 the grand jury was called to prove 
 that a certain question was put to the 
 prosecuting witness, which she an- 
 swered, but which question, she swore 
 at the trial, was not put to her when 
 in attendance upon the grand jury. 
 The court say : " If the witness be 
 incompetent for the purpose stated, it 
 must be by reason of public policy. . . . 
 As the rule was held at an early day 
 he would be incompetent. For a long 
 time, however, the courts have gradu- 
 ally been modifying its strictness and 
 manifesting a determination to distin- 
 guish between the character of the 
 evidence offered. The juror may be 
 a competent witness for some purposes 
 and not for others. Thus in Sykes v. 
 Dunbar, 2 Wheat. Selw. N. P. 1091, 
 one of the grand jury by whom a true 
 bill had been f ound,was held competent 
 to testify as to who was the prosecutor, 
 although it was contended he could 
 know the fact only from the testimony 
 which had been produced before him 
 in liis character as a grand juror, and 
 which, it was claimed, he was bound 
 not to disclose. This case was cited 
 with approbation in Huidekoper v. 
 Cotton, 3 Watts (Pa.) 56, and the 
 competency of a grand juror to testify 
 as to who was the prosecutor, affirmed 
 . . . the oath and the whole proceeding 
 before a grand jury was not intended 
 to protect the innocent witnesses and 
 juror, but to punish the guilty party. 
 It should not be so construed as to 
 punish the innocent or obstruct the 
 due course of justice. ... It must be 
 conceded that the rule shall not be 
 carried so far as to conflict with the 
 juror's oath. He shall not testify 
 how he or any member of the jury 
 
 voted, nor what opinion any of them 
 expressed in relation thereto, nor to 
 the act of either, which might in- 
 validate the finding of the jury. His 
 action, and the action of his fellow- 
 jurors, must be shown only by the 
 returns which they make to the court. 
 What a witness has testified to before 
 them is quite another matter. A 
 witness may be indicted for perjury, 
 for false swearing before a grand 
 jury, and grand jurors are competent 
 witnesses to prove what he swore to 
 before them (1 Whart. Cr. L. § 508). 
 It is said in 1 Whart. Law of Ev. 
 § 001, ' It was at one time supposed 
 that a grand juror was required by his 
 oath of secrecy to be silent as to what 
 transpired in the grand jury-room ; 
 but it is now held that such evidence, 
 whenever it is material to explain 
 what was the issue before the grand 
 jury, or what was the testimony of 
 particular witnesses, will be required.' 
 This conclusion appears to be sus- 
 tained by numerous authorities, among 
 which may be cited Thomas v. Com- 
 monwealth, 2 Rob. (Va.) 795; State 
 u. Offnutt, 4 Blackf. (Ind.) 355 ; State 
 V. Passett, 16 Conn. 457 ; Common- 
 wealth V. Hill, 11 Cush. (Mass.) 137; 
 State I'. Broughton, 7 Ired. (N. C.) L. 
 96 ; Commonwealth v. Mead, 12 Gray 
 (Mass.) 167; Way v. Buttorworth, 
 106 Mass. 75. The case of Common- 
 wealth (,-. Mead, supra, rules the pre- 
 cise case we have before us. It was 
 an indictment for manslaughter. To 
 contradict a witness who testified in 
 behalf of the Commonwealth, on the 
 trial, the defendant offered to prove 
 by the grand jurors wlio found the 
 indictment, that he testified differently 
 before them. The court below ex- 
 cluded the witnesses on the ground 
 that it was against public policy and 
 
82 
 
 COMPETENCY. 
 
 [chap. VI. 
 
 ting jurors' affidavits to impeach their verdicts was broken in 
 upon by Lord Mansfield, since whose time the English law 
 excludes them.^ The true rule seems to be that the testi- 
 mony of a juror is admissible as to facts touching his own 
 conduct or acts when separated from his fellows, or the acts 
 and declarations of other persons with or to him, but inad- 
 missible as to what transpired in the jury-room, while the 
 jury were acting as such, presided over by their foreman and 
 performing their official duty.^ A juror may also testify to 
 facts which came to his knowledge from his own personal 
 observation, and not from what he has heard other witnesses 
 swear to ; ^ but he should not attempt to give his opinion on 
 the merits of the matter in controversy.* He may show the 
 identity of the subject-matter in different actions ; ^ or what 
 claims were allowed by the jury on a plea of payment ; ^ but 
 not that the damages were doubled in the verdict, even in an 
 action brought to recover double damages under a statute;^ 
 and he cannot give evidence to his fellow-jurors without 
 being sworn as an ordinary witness.^ 
 
 established practice, to permit grand i Vaise v. Delavel, 1 T. E. 11 ; Jack- 
 jurors to detail the evidence given son tv Williamson, 2 Id. 281; Owen 
 before them for the purpose of im- 
 peaching the witness on the trial of 
 the indictment. On exceptions taken, 
 the case was reversed, the court hold- 
 ing that when the case was reached 
 for trial, all useful purposes of secrecy 
 liad been accomplished. The neces- 
 sity and expediency of retaining the 
 seal of secrecy were at an end, and 
 the jurors were held competent for 
 the purpose of proving the facts." 
 The contrary doctrine is held in 
 Imlay v. Rogers, 2 Ilalst. (N. J.) 347; 
 Tindle v. Nichols, 20 Mo. 320 ; and in 
 Beam v. Sink, 27 Mo. 261, a grand 
 juror was not allowed to testify that 
 he was a member of the grand jury 
 that indicted the plaintiff. That the 
 American cases are in favor of allow- 
 ing a grand juror to testify as to what 
 any witness testified to before the 
 grand jury, see Shattuck v. State, 11 
 Ind. 473; Burdick v. Hunt, 43 Id. 
 381 ; Commonwealth v. Mead, 12 
 Gray (Mass.) 160; State ;>. Wood, 53 
 N. n. 484; Jones v. Turpin, 6 Hcisk. 
 (Tenn.) 181. See also as to the grand 
 juror's privilege, infra, § 277. 
 
 V. Warburton, 1 N. R. 326. S. P. 
 Little u. Larrabee, 2 Me. 37, 41, n., 
 citing many cases ; State r. Freeman, 
 5 Conn. 348; Mead i-. Smith, 16 Id. 
 346; Vance 1-. Haslett,4Bibb (Ky.)191. 
 
 2 Heflron v. Gallupe, 55 Me. 563 ; 
 Studlcy V. Hall, 22 Me. 198 ; Hewett 
 V. Chapman, 49 Mich. 4. 
 
 3 State V. Powell, 2 Halst. (N. J.) 
 244; McKain v. Love, 2 Hill (S. C.) 
 500. 
 
 4 Dunbar ;•. Parks, 2 Tyler (Vt.) 217. 
 
 5 Stapleton v. King, 40 Iowa, 278. 
 
 6 Piatt V. St. Clair, 6 Ohio, 227; 
 Wright, 261. 
 
 ' Hannum v. Belchertown, 19 Pick. 
 (Mass.) 311. See also Howser i. 
 Commonwealth, 51 Pa. St. 332. 
 
 8 Anderson u. Barnes, Coxe (N. J. ) 
 203. 
 
 A juror's testimony or affidavit has 
 been admitted to impeach the verdict 
 in the following cases : Anschicko v. 
 State, 6 Tex. App. 524; Hunter i-. 
 State, 8 Id. 75; Nile v. State, 11 Lea 
 (Tenn.) 694; (but see Cartwright v. 
 State, 12 Id. 620). See also Tenny 
 •i). Evans, 13 N. H. 462; State v. Ayer, 
 
§ 63.] PARTIES AND PERSONS INTERESTED. 83 
 
 § 68. Landlord or Tenant. — (1) Landlord. It is a rule of 
 general application that one who has signed a lease, whether 
 as lessor or lessee, is not a competent witness to impeach 
 it ; 1 but he may be to uphold it, or to protect his own or the 
 other party's rights thereunder. Thus it is held that the 
 lessor of the plaintiff in trespass is a competent witness for 
 him, unless the lease binds him to protect the tenant from 
 trespasses.^ But he was held not a competent witness to 
 prove his title, in order to enable his tenant to recover on 
 his own demise, in an action of trespass ; ^ nor is he competent 
 for the lessee in an action for obstructing him in using a 
 right of way to repair a dam, part of the demised premises.* 
 One of several joint lessors entitled severally to a specified 
 part of the rent is a competent witness for another of them 
 in his action to recover his part of the rent.^ In an early 
 New York case it is held that the lessor of the plaintiff in 
 ejectment cannot be a witness in the cause.^ 
 
 (2) Tenant. We do not propose to consider in this con- 
 nection the decisions upon the principle in the law of estoppel 
 which prevents a tenant from disputing his landlord's title. 
 So far as interest is concerned, it has been held that the ten- 
 ant is a competent witness to dispute such title.''' Our 
 purpose is to examine the cases which pass upon his com- 
 petency for or against the landlord or his co-tenant, in 
 controversies between the latter and third persons, not 
 directly involving the relation of landlord and tenant. If 
 
 23 N. H. 301; Dana u. Tucker, 4 590; State v. Cartright, 20 ^Y. Va. 
 
 Johns. (N. Y.) 487. 32 ; State v. Robinson, Id. 713; Jones 
 
 That such affidavit or testimony v. State, 89 Ind. 82 ; Cook v. Territory, 
 
 should not be received for such pur- 4 West Coast Rep. 340. 
 
 pose, see United States v. Clements, 'Allen v. Holkins, 1 Day (Conn.) 
 
 3 Hughes, 509 ; State v. McConkey, 49 17. 
 
 Iowa, 499; State v. Shock, 08 Mo. ^ jigCormick w. Bailey, 10 Cal. 230. 
 
 552; State v. 'Wallraan, 31 La. Ann. So held where the land was leased 
 
 146; People v. Sprague, 53 Cal. 491 ; from year to year for a part of the 
 
 State V. Mims, 26 Minn. 183 ; s. c, 2 crop. Sanderlin v. Shaw, 6 Jones (N. 
 
 N. W. Rep. 683; People v. Gray, 9 C.) L. 225. 
 
 Pac. C. L. J. 778 ; Ostrander v. People, 
 28 Hun (N. Y.) 38; People v. Car- 
 nell, 2 Edm. (N. Y.) Sel. Gas. 202 
 Montgomery -o. State, 13 Tex. App, 
 75; State v. Brittain, 89 N. C. 481 
 
 = Wilson V. Douglas, 2 Strobh. (S. 
 C.) 97. 
 ^ Dickson v. Boland, 4 Pa. St. 112. 
 ^ Gray v. Johnson, 14 N. H. 414. 
 ' Jackson v. Ogden, 4 Johns. (N. Y.) 
 
 State V. Fox, 79 Mo. 109. 140. 
 
 That such affidavit is admissible to ' Jackson v. Vredenburgh, 1 Johns, 
 
 support the verdict, sec People v. (N. Y.) 159. 
 Hunt, 59 Cal. 430; s. c, 8 Pac. C. L. J. 
 
84 COMPETENCY. [CHAP. TI. 
 
 the event of the trial may affect the estate which he occupies, 
 he has been held to be incompetent ; ^ but if he has no 
 interest in the subject-matter of the controversy, — as where 
 the action is for an injury to the reversion, — he is competent.^ 
 He is competent for his landlord in an action of trespass 
 committed on a part of the close occupied by him ; ^ and so 
 is one who is to have a lease of a part of the close from the 
 plaintiff.* Again, he may testify for the landlord in his 
 action against a stranger for removing a building from the 
 land by the consent of the witness, for then his interest 
 is adverse ; ^ or, being the tenant of a mill to which a dam is 
 appurtenant, he may testify for his landlord, who is sued in 
 case for a nuisance by reason of the erection of the dam.^ 
 So, also, is he competent in an action by a sheriff who has 
 levied on the goods of the witness, without notice of any 
 rent being in arrear, against the landlord, who had distrained 
 the same goods after the levy;^ and where a third person 
 brings replevin against the landlord for his goods distrained, 
 he is competent to prove that the goods are the property of 
 the landlord.^ He is also competent to prove the terms 
 of his hiring in a contest between the landlord and the 
 execution creditor of the witness, as to the distribution of 
 the proceeds of a sheriffs sale of his goods, found on the 
 demised premises.^ 
 
 On the other hand, it has been held that the tenant of the 
 defendant in ejectment,^" or of the complainant in forcible 
 entry and detainer,^^ is incompetent, from interest, to testify 
 in his landlord's favor. So, also, the lessee of a ferry is incom- 
 petent for his landlord when sued for a loss occurring during 
 the witness' occupation of the ferry under his lease.^^ It 
 seems that he may testify against his landlord when the 
 latter is sued for use and occupation of the demised 
 premises.'^^ 
 
 ' Kuester v. Keck, 8 Watts & S. ' Alexander ,.. Mahon, 11 Johns. 
 
 (Pa.) 16. (N. Y.) 185. 
 
 2 Pennsylvania &c. Mfg. Co. i-. ^ M'Conahy v. Kessler, 3 Pa. 467. 
 
 Neel, 54 Pa. St. 9. ' Collin's appeal, 35 Pa. St. 83. 
 
 i* Baker v. Pearce, 4 Har. & M. w Kennedy j). Reynolds, 27 Ala. 364 ; 
 
 (Md.) 502. Doe v. President, &o., 7 Ind. 641 ; Jack- 
 
 * Ibid. son V. Trusdell, 12 Johns. (N. Y.) 246. 
 
 5 Forbes v. Williams, 1 Jones (N. C.) " House v. Camp, 32 Ala. 541. 
 
 L. 303. ^2 Harris v. Plant, 31 Ala. 639. 
 
 » Delweiler v. Groff, 10 Pa. St. 370. i' Grant v. Beall, 4 Har. & M. (Md.) 
 
 419. 
 
§ G4.] PAETIES AND PERSONS INTERESTED. 85 
 
 A tenant may testify for his co-tenant in an action brought 
 by the latter to recover his share of the premises of a dis- 
 seisor; he not being a party to the suit, and his interest 
 being in the question only.i And after the expiration of the 
 lease, a co-tenant is a competent witness to show that he had 
 no beneficial interest in the lease, and joined in its execution 
 merely as a surety for the payment of the rent by the other 
 tenant.^ 
 
 § 64. Mortgagor or Mortgagee. — (1) Mortgagor. The 
 common-law disqualification of a mortgagor as a witness was 
 generally of a twofold character : he was, in most cases, 
 incompetent both as a partj- to the suit, and as a person 
 interested in the event. Thus in a proceeding to foreclose 
 the mortgage, he does not become a competent witness bj' 
 showing that he has conveyed the equity of redemption and 
 therefore has no interest, for such showing does not entitle 
 him to a nonsuit, and he still must remain a party.^ And in 
 such a suit, the mortgage being a purchase-money mortgage, 
 the mortgagor cannot, after the death of the mortgagee, tes- 
 tify to admissions made by the latter of defects in the title 
 he conveyed and warranted to the witness ; nor that the 
 mortgagee consented that a payment made by the witness to 
 extinguish an adverse claim should be deemed to reduce the 
 mortgage debt.* For similar reasons the mortgagor, though 
 not liable on any covenants in his deed, cannot testify for the 
 mortgagee in an action brought to recover possession of the 
 land, where the possession sought by the demandant would 
 be a payment pro tanto of the mortgage debt.^ So also in 
 ejectment by the mortgagee against one who claims under a 
 quitclaim deed from the mortgagor, the latter is not a compe- 
 tent witness for the plaintiff.^ Nor will a confession of judg- 
 ment on a sei.fa. render him competent for the plaintiff in a 
 sci.fa. on the mortgage against a terre-tenant.'' And he has 
 been held incompetent for either side in contests between 
 prior and subsequent mortgagees.^ Where the equity of 
 
 1 Cook V. Brown, 34 N. H. 460. ^ Jackson ^. M'Chesney, 7 Cow. 
 
 2 Jones V. Clark, 20 Johns. (N. Y.) (N. Y.) 360. 
 
 51. ' Ilartz V. Woods, 8 Pa. St. 471. 
 
 ' Straw V. Greene, 14 Allen (Mass.) s Beverly v. Brooke, 2 Leigh (Va.) 
 
 206. 425 ; Sitlingtons v. Brown, 7 Id. 271. 
 
 * Hart V. Carpenter, 36 Mich. 402. Contra, Willard v. Eamsburg, 22 Md. 
 
 5 Howard v. Chadbourne, 3 Me. (3 206 ; Oilman v. Moody, 43 N. H. 239 ; 
 
 Greenl.) 461. Wilcox v. Hill, 11 Mich. 256. 
 
86 COMPETENCY. [CHAP. VI. 
 
 redemption has been sold by the sheriff, and no decree of 
 foreclosure is necessary as against him, the mortgagor may 
 l)rove nsury in the mortgage.^ So may he where he has suf- 
 fered a bill to foreclose to be taken pro covfesso against him, 
 where a creditor, party to the suit, attacks the mortgage as 
 usurious.^ And where he has conveyed subject to the mort- 
 gage, he may testify for his grantee to show payment of the 
 mortgage, in an action for its cancellation and discharge, 
 and this even against the executrix of the deceased owner 
 of the mortgage.^ So is he competent, when the mortgagee 
 brings ejectment against a third person, to show that part of 
 the mortgaged land was not his property, but was included 
 in the mortgage by mistake.* And he may testify against 
 the mortgagee, in favor of a judgment creditor, to show want 
 of consideration in the mortgage.^ 
 
 (2) 3Io7-tgagee. The same objection of interest often dis- 
 qualified the mortgagee as a witness. Thus a mortgagee of 
 previously attached property was so far interested in the 
 event of the suit in which the attachment was made, as to be 
 incompetent to testify therein.^ And in an action by judg- 
 ment creditors to set aside the mortgage as fraudulent, the 
 mortgagor, mortgagee, and assignee of the mortgage being 
 made parties, the mortgagee was held incompetent to prove 
 that the assignee took in good faith, as this would tend to 
 prevent a recovery against himself.'' In some cases the mort- 
 gagee Avas deemed competent to testify for or against the 
 mortgagor. Thus the mortgagee of an insured vessel whose 
 debt had been paid by her sale after abandonment for a con- 
 structive total loss, and subsequent repair by the under- 
 writers, was held competent for the mortgagor in an action 
 by him against them for the loss ; ^ and in a writ of entry by 
 one who had mortgaged the land to secure a promissory note, 
 
 1 Brolaskyr. Miller, 1 Stock. (N.J.) Gunter c. 'Wimains, 40 Ala. 561; 
 807. Compare Cummins v. Wire, 2 Carter v. Champion, 8 Conn. 549 ; 
 Halst. (S. J.) 73; Nichols v. Holgate, Miller v. Dillon, 2 T. B. Mon. (Ky.) 
 2 Aik. (Vt.) 138. 73 ; Howard r. Chadbournc, 5 Me. 15 ; 
 
 2 Post V. Dart, 8 Paige (N. Y.) 6-39. Foster , . Berkey, 8 Minn. 351 ; Iving 
 8 Beach v. Cooke, 28 N. Y. 508. v. Bailey, 8 Mo. 332 ; Gage v. Whit- 
 
 4 Mott V. Clark, 9 Pa. St. 300. tier, 17 N. H. 312. 
 
 5 Lamar v. Simpson, 1 Rich. (S. C.) » Bideout v. Newton, 17 N. II. 71. 
 Eq. 71. Por other cases in which the ' Pcrrin v. Johnson, 10 Ind. 72. 
 mortgagor has been held competent, ' Pulton Ins. Co. v. Goodman, 32 
 see Price v. Magange, 31 Ala. 701 ; Ala. 108. 
 
§ 65.J PARTIES AND PERSONS INTERESTED. 87 
 
 the mortgagee was deemed a competent wituess for the 
 mortgagor.! So also a mortgagee who had assigned the mort- 
 gage was competent, in an action upon it, to prove that only 
 part of the amount for which it purported to have been given 
 was ever received by the mortgagor, and that the equitable 
 plaintiff took it with knowledge of that fact ; and this, though 
 the original mortgagee, the nominal plaintiff, was an indorsee 
 of the promissory note, which the mortgage had been given 
 to secure.^ On the other hand, in an action for use and occu- 
 pation instituted by the mortgagor, the mortgagee was compe- 
 tent to prove that he entered for condition broken, and then 
 leased the land to the defendant, and that the mortgage had 
 been forclosed.^ And where the mortgagor brought a writ 
 of entry against one to whom tlie inortgagee had couvej'ed 
 the land with warranty, the mortgagee was held a competent 
 witness for the defendant on being released from his cove- 
 nants.* 
 
 §65. Negotiable Paper, — ^ Parties to. — (V) Generally. Ac- 
 cording to the rule laid down in many of the earlier cases, 
 no party to a negotiable instrument was competent to inval- 
 idate it by his own testimony, after he had given it credit 
 and currency by his signature ; ® and the rule applied not 
 only to actions directly upon the note, but to any litigation 
 in which its validitj' came collaterally in question ; ^ and 
 included the case of one who signed the note as agent.'' But 
 the rule did not generally apply to instruments other than 
 
 ^ 'Woodman v. Skeetup, 35 Mc. 464. 105 ; Winton v. Saidler, 3 Johns. 
 
 2 Shrom V. Williams, 43 Pa. St. 520. (N. Y.) Cas. 185; Treon v. Brown, 14 
 
 3 Plympton v. Moore, 13 Pick. Ohio, 482 ; Bodkins v. Taylor, Id. 489. 
 (Mass.) 191. " Deering v. Sawtel, 4 Me. 191. 
 
 * Smith V. Smith, 15 N. H. 55. And '' Packard u. Richardson, 17 Slass. 
 
 see also Newkirk x. Burson, 21 Ind. 122. 
 
 129; Rogers v. Traders' Ins. Co., 6 In a case decided at the December 
 Paige (N. Y.) 583 ; Shay v. Pettees, 35 term, 186.3, the Supreme Court of the 
 111. 360; Indianapolis &c. R. R. Co. u. United States say of this rule : "Per- 
 "Waggoner, 16 Ind. 307 ; Bigelow v. haps no subject connected with corn- 
 Smith, 2 Allen (Mass.) 264. mercial paper has been more the 
 
 ^ Bank of the United States J). Dunn, subject of controversy, and of 
 
 C Pet. 51 ; Henderson o. Anderson, 3 opposing and well-balanced judicial 
 
 How. 73; Rossi). Wells, 1 Stew. (Ala.) decisions, than the proposition here 
 
 139; Lane v. Padelford, 14 Me. 94; relied on. It was first laid down in 
 
 Churchill v. Suter, 4 Mass. 15G ; Par- the English courts in the case of 
 
 ker V. Lovejoy, 3 Id. 505; Barker v. Walton v. Shelley (1 T. R. 200), and 
 
 Prentiss, 6 Id. 430 ; Widgery v. Mun- afterwards held the other way in 
 
 roe, Id. 449; Jones v. Coolidge, 7 Id. Jordaine v. Lashbrooke (7 T. R. 001). 
 
 199; Coleman !J. Wise, 2 Johns. (N. Y.) This court, however, has steadily 
 
COMPETENCY. 
 
 [chap. VI. 
 
 such as were negotiated in tlio regular course of business 
 before maturity. i In some States tlie rule was to admit par- 
 ties to negotiable paper as witnesses, if not disqualified by 
 interest ; ^ and the current of early authorities indicates that 
 they were deemed competent to testify to facts concerning 
 the paper which had no tendency to show that it was origi- 
 nally void.^ 
 
 (2) Drawers of Bills. Before the enabling acts,* the 
 drawer of a bill of exchange was not generally deemed a 
 competent witness for the plaintiff in an action on the bill 
 against the acceptor, because of his liability to damages, 
 interest, and costs, in case the suit should fail.^ Nor could 
 
 adliered to the doctrine of Walton v. 
 Shelley, and we are referred by 
 counsel for plaintiffs in error to our 
 own decisions on this subject in 
 I'eters, 51 ; 8 Peters, 12 ; 3 Howard, 
 73 ; 13 Howard, 229. 
 
 " The rule propounded in Walton 
 u. Shelley is, that -a, person who has 
 placed his name on a negotiable paper 
 as a party to it, sh-all not afterwards, 
 in a suit on such security, be compe- 
 tent as a witness to prove any fact 
 which would tend to impeach or in- 
 validate tlie instrument to which he 
 lias thus given his name. The reason 
 of it is, that it is against good morals 
 and public policy to permit a person 
 who has tlius aided in giving currency 
 and circulation to such paper, to 
 testify to facts which would render 
 such paper void, after he has thus 
 imposed it upon the public as valid, 
 witli all the sanction which liis name 
 could give it." Sweeny i,. Easter, 1 
 AVall (U. S.) 166, 173. 
 
 1 Rohrer v. Morning Star, 18 Ohio, 
 570; Fox v. Whitney, IG K.tss. 118; 
 Park V. Smith, 4 Watts & S. (Pa.) 
 287, 
 
 '^ Bank of Missouri v. Hull, 7 Mo. 
 273; Parrar v. Metts, 12 Eich. (S. C.) 
 C67. 
 
 3 Wendell c. George, R. M. Charlt. 
 (Ga.) 51; Buck v. Appleton, 14 Me. 
 284 ; Woodhull u. Holmes, 10 Johns. 
 (N. Y.) 231; Appleton v. Donaldson, 
 3 Pa. St. 381; Pcnnypackcr v. TJm- 
 berjer, 22 Id. 492 ; "Warren v. Merry, 
 3 Mass. 27 ; Barker u. Prentiss, 6 Id. 
 
 430, 434; Parker v. Hanson, 7 Id, 470 ; 
 Van Schaack o. Stafford, 12 Pick. 
 (Mass.) 565 ; Smith r. Downs, 6 Conn. 
 365; Crayton u. Collins, 2 McCord, 
 (S. C.) 457. 
 
 In the following cases parties to 
 negotiable paper were rejected as 
 witnesses : Huff v. Freeman, 15 La. 
 Ann. 240; Watson v. McLaren, 19 
 Wend. (N. Y.) 557; Miley v. Todd, 17 
 Pa. St. 101. In Starr r. Johnson (Ga. 
 Dec. Pt. II. 134) it was held that a 
 party to the paper, who was not a 
 party to the suit, was competent ; and 
 in Sibley v. Lumbert (30 Me. 253) 
 the words " property of A " written on 
 the margin of the note sued on were 
 held not to show such an interest in 
 A at the time of trial as to render him 
 incompetent to testify. Again, in 
 Quinlan v. Davis (6 Whart. (Pa.) 
 169), a person who expected to receive 
 part of the consideration of tlie note 
 sued on, was admitted as a witness for 
 the maker when sued on the note; 
 and in Connor v. Bradey (Anth. 
 (N. Y.) 99) the real plaintiff in interest 
 was allowed to be examined in a suit 
 on a promissory note. See also Gray 
 V. Morcy, 26 111. 409 ; Packard v. Nye, 
 2 Mete. (Mass.) 47; Columbia Coat 
 &c. Co. B. Pox, 33 Pa. St. 239. 
 
 i Infra, Chap. VIII. 
 
 5 Scott V. McLellan, 2 Me. 199 ; 
 Hewitt V. Levering, 12 Me. 201 ; 
 Dennistoun v. Fleming, 7 Pa. St. 528. 
 But see Paciiio Bank v. Mitcliell, 9 
 Mete. (Mass.) 297; Barney v. Kcw- 
 come, Cush. (Mass.) 46. 
 
§ 65.J 
 
 PARTIES AND PEESOKS INTERESTED. 
 
 89 
 
 he prove the usurious character of the bill iii such an action,' 
 or in an action by an indorsee against his indorser.^ 
 
 (3) Acceptors. Where the indorsee of a bill of exchange 
 brings an action upon it against the drawer, the acceptor is 
 a competent witness to prove that he has not had in his 
 hands any funds of the drawer.^ And in an action between 
 the drawer and drawee of an order for goods, the person on 
 whom the order is drawn is a competent witness to prove its 
 acceptance.* 
 
 (4) Makers of Notes, In an action by the holder against 
 an indorser, the maker is competent to prove an alteration 
 in the jiaper after it left his hands, his liability for costs 
 having been first released.^ And many early decisions hold 
 him competent, as a general witness, in such an action.*' 
 Thus, he may prove protest and notice;^ or that the note 
 sued on was indorsed to the plaintiff for collection only, and 
 not for his benefit.^ So he may testify as to the execution 
 of the note by himself and partners, as makers, and the in- 
 dorsement of it by the defendant ; ^ and the circumstances 
 
 1 Nichols V. Wright, 4 Cranch, C. C. 
 700; Jones v. Brook, 4 Taunt. 464. 
 Contra, Eich v. Topping, Peake, N. P. 
 224 ; Brand v. Aclcerman, 5 Esp. 119. 
 But on being released from liability 
 to costs, he was admitted for the ac- 
 ceptor to show that plaintiff was not 
 the owner of the bill. Snyder v. Wilt, 
 15 Pa. St. 59. 
 
 2 Saltmarsh v. Tuthill, 13 How.(U. S. ) 
 229. Thus, in an action or a promis- 
 sory note, the drawer of an order was 
 held incompetent for the defendant, 
 to prove that the plaintiff accepted 
 such order in payment of the note. 
 Huntington v. Champlin, Kirby 
 (Conn.) IGO. And in a joint action 
 against the drawer and indorscrs of a 
 bill, each defendant is interested in 
 the costs, and therefore incompetent 
 to testify. Scott v. Watkins, 10 Miss. 
 233. But the drawer was held com- 
 petent to prove that he had received 
 notice of non-acceptance. Whiteford 
 V. Burckmeyer, 1 Gill (Md.) 127; also 
 that the acceptance was conditional. 
 Storer v. Logan, 9 Mass. 55 ; also that 
 the bill was given on a gaming con- 
 sideration, Hubner u. Richardson, 
 
 Manning's Index, 327 ; or that it had 
 been paid. Humphrey v. Moxon, 
 Peake, N. P. 52. 
 
 ^ Kinsley u. Eobinson, 21 Pick. 
 (Mass.) 327. 
 
 * Tarble v. Underwood, 34 111. G7. 
 
 '' Prazer v. Carpenter, 2 McLean 
 (U. S.) 235. 
 
 ^ See among others Griffing v. Har- 
 ris, 9 Port. (Ala.) 225; Adams v. 
 Moore, Id. 406; Cockrill u. Hobson, 
 16 Ala. 391 ; Woodman v. Eastman, 
 10 N. H, 359 ; Hubbly v. Brown, 10 
 Johns. (N. Y.) 70; Pinn v. Gustin, 4 
 E. D. Smith (N. T.) 382. Contra, 
 Bank of Metropolis v. Jones, 8 Pet. 
 (U. S.) 12; Davenport u. Freeman, 
 Watts & S. (Pa.) 557. See also Bank 
 of Columbia v. Prench, 1 Cranch, C. 
 Ct. 221 ; Knowles v. Parrot, 2 Id. 93 ; 
 White I'. Burns, 5 Id. 123. 
 
 ' Eddy V. Peterson, 22 111. 535. 
 
 8 Gilraan v. Pugh, 1 Litt. (Ky.) 28G. 
 Compare Thompson v. Bank of Gettys- 
 burg, 3 Grant (Pa.) Cas. 119. 
 
 » Crowley .. Barry, 4 Gill (Md.) 
 194. See also Hopkinson v. Steel, 12 
 Vt. 582. 
 
90 COMPETENCY. [CHAP. VI. 
 
 under whicli tlie indorsement was made.^ And lie may 
 impeach tlie note, if dishonored by indorsement on the last 
 day of grace.^ So, in troA'er for the note, he may testify in 
 favor of the defendant;^ and it was abundantly settled that 
 he was competent to prove the usurious character of the 
 note.* He could also testify that the note (a firm note) was 
 given by one partner for his individual debt;^ or that it had 
 been paid;^ or that the note was made payable to the payee 
 at the request of a person to whom the witness was indebted 
 at the time.'' The suit being by the payee against the wit- 
 ness, he was permitted to show a parol agreement, on the part 
 of the plaintiff, made when the note was given, to consider 
 certain services, rendered since that time as payment thereof.^ 
 
 Some of the cases only go so far as to hold the maker 
 competent after judgment against him on the note, in which 
 case his interest is equally balanced.^ Thus, if he suffered a 
 default, he could testify.^" And the rule was the same where 
 his liability on the note was barred by the statute of limi- 
 tations ; ^1 or by a discharge in bankruptcy ; ^^ or when he was 
 released by the party in whose favor he was called to testify .^^ 
 
 Where one of the parties to the suit was a surety on the 
 note, the principal maker was held competent to testify 
 
 1 Schley .;. Merritt, 37 Md. 352. ^ Fry v. Coleman, 1 Grant (Pa, ) 
 
 Compare Saurman v. Bodey, 42 Pa. St. Cas. 445. Contra, Moore v. Henderson, 
 
 470. 18 Ala. 232 ; Palmer v. Tripp, 6 Cal. 
 
 ' Pine V. Smith, 11 Gray (Mass.) 38. 82. 
 
 ^ Woodruff ^. Smith, 1 Halst. (N. ' Lewis v. Carsaw, 15 Pa. St. 31. 
 
 J.) 214. 8 Hagood u. Swords, 2 Bailey (S. 
 
 4 Howell V. Auten, 1 Green (N. J.) C.) 305. 
 
 41 ; Cushman v. Downing, 29 Me. 450 
 Stafford v. Eice, 5 Cow. (N. Y.) 23 
 Bank of Utica v. Hillard, Id. 153 
 
 !) Vance v. Collins, 6 Cal. 435; 
 Routh V. Helm, 6 How. (Miss.) 127; 
 ICleinmann v. Boernstein, 32 Mo. 311 ; 
 
 Van Schaack v. Stafford, 12 Pick. Bank of Columbia u. Magruder, 6 
 
 (Mass.) 505; Townsend v. Bush, 1 Har. & J. (Md.) 172. 
 Conn. 200; Hunt v. Edwards, 4 Har. i» Austin v. Puller, 12 Barb. (N. Y.) 
 
 £ J. (Md.) 283; Winkler v. Scudder, 300; Mercy v. Matthews, 9 Pa. St. 
 
 1 Ga. 108 ; Plemming v. Mulligan, 2 112. But a mere verdict against him 
 
 McCord (S.C.) 173; Little v. Rogers, did not make him competent. Haig 
 
 1 Mete. (Mass.) 108; Griffith r.Reford, v. Newton, 1 Mill (S. C.) Const. 423. 
 1 Rawie (Pa.) 190; Moyer v. Gunn, 12 " Breitenbach v. Houtz, 35 Pa. St. 
 
 Wis. 385. To the contrary, see Hart- 153. 
 
 ford Bank v. Barry, 17 Mass. 94; i^ Hayden !'. McKnight, 45 Ga. 147. 
 Churchill a. Suter, 4 Id. 150 ; Man- is Franklin Bank v. Pratt, 31 Me. 
 
 ning V. AVhcatland, 10 Id. 502 ; Hough- 501 ; Peirce ,-. Butler, 14 Mass. 303 ; 
 
 ton r. Page, 1 N. H. GO. Wheaton v. Wilmarth, 13 Mctc. 
 
 •5 Williams v. Walbridge, 3 Wend. (Mass.) 422; Bank v. Fordyco, 9 Pa. 
 
 (N. Y.) 415. St. 275. 
 
§ 65.] PAETIES AND PERSONS INTERESTED. 91 
 
 against the surety, where he had indemnified him by fi de- 
 posit with him sufficient to cover the amount which could be 
 recovered in the suit.^ So, otlier decisions hold that the 
 payee (plaintiff) may examine the maker to charge the 
 guarantor.2 And it is held that in such an action he may 
 testify in favor of the surety when the suit is against the 
 latter,^ provided he be released by the surety.* 
 
 Where there were two or more joint makers, the prevalent 
 rule was that one of them was not a competent witness for 
 another, without a release from liability to contribution.® 
 The suffering a default,® or the pendency of proceedings in 
 bankruptcy j'^ or the fact that the proposed witness made no 
 defence,^ did not alter the rule ; nor did the fact that he was 
 not joined as a defendant qualify him to testify for his 
 co-maker,^ even though the period of limitation had elapsed, 
 thus barring a future suit against him.^" Conversely, he was 
 not allowed to testify against his co-promisor, his interest 
 being to charge the latter,^! even to prove the execution of 
 the note by the defendant.^^ 
 
 (5) Indorsers of Bills or Notes. Where the action is 
 by indorsee against drawer, maker, or acceptor, an indorser is 
 
 ' Gayle v. Bishop, 14 Ala. 552. See signed it, and without his Icnowledge ; 
 also Wright v. Lewis, 18 Ala. 194. and this, where the plaintiff was an 
 
 2 Knoeble u. Kircher, 33 111. 308 ; innocent indorsee for value. 
 
 Perry v. Swasey, 12 Cush. (Mass.) 30 ; '" Marine Bank v. Ferry, 40 111. 255 ; 
 
 Taylor v. McCune, 11 Pa. St. 460. Commercial &c. Bank v. Lum, 8 Miss. 
 
 3 Mitchell V. Gotten, 1 Pla. 180; 414; Ames u. Withington, 3 N. II. 
 Freeman's Bank v. Rollins, 13 Me. 202. 115 ; Carleton v. Whitaker, 5 Id. 196 ; 
 Contra, see McGinnes u. McGinnes, Jewitt v. Davis, 6 Id. 618 ; Miller ;,■. 
 23 Ga. 613; Newells u. Salmons, 22 McCogg, 4 Hill (N. Y.) 35; Groat v. 
 Barb. (N. Y.) 647 ; Strong v. Grannis, Palmer, 7 Wio. 338. 
 
 26 Id. 122. Thus he was allowed to ^ Smith v. Chase, 34 Me. 592. 
 
 prove that the sureties had been dis- ' Wolf v. Finks, 1 Pa. St. 435 ; 
 
 charged by the plaintiff. Greeley v. Madison Ins. Co. v. Mitchell, 1 Ind. 
 
 Dow, 2 Mete. (Mass.) 176. See also 384. 
 
 Chaffee v. Jones, 19 Pick. (Mass.) 260 ; » Turner v. Lagarus, 6 Ala. 875. 
 
 Bell V. Wilson, 17 Ohio St. 640. 9 Kornegay v. Salle, 12 Ala. 534 ; 
 
 * Bank of Limestone v. Penick, 5 T. Concord Bank v. Rogers, 16 N. H. 9 ; 
 
 B. Mon. (Ky.) 25 ; Lamb ;;. Fox, 5 B. Kile v. Graham, 1 McCord (S. C.) 552. 
 
 Mon. (Ky.) 94; Barnett v. Troutman, Contra, Thompson u. Armstrong, 5 
 
 9 Ga. 36 ; Jones ll Fleming, 15 La. Ala. 383. 
 
 Ann. 522 ; Hill v. Sweetser, 5 N. H. " Whipple v. Stevens, 19 N. H. 150. 
 
 168 ; Hogg V. Breckenridge, 12 Mo. " McCall v. Sinclair, 11 Ala. 764. 
 
 369; Haines v. Dennett, 11 Id. 180, i^ Marshall v. Thrailkill, 12 Ohio, 
 
 where he was permitted to prove that 275 ; Armstrong v. Deshler, Id. 475 ; 
 
 the words "or order" were inserted Harvey v. Sweasy, 4 Humph. (Tenn.) 
 
 in the note after the surety had 449. 
 
92 COMPETENCY. [CHAP. VI. 
 
 generally held competent for either party, as he stands 
 indifferent between them ; ^ unless it appear that the action 
 is prosecuted for his immediate benefit.^ He is competent 
 in such a case for almost any other purpose than that of 
 impeaching the genuineness of the paper sued on, or its 
 payment before suit brought.^ Thus where the note sued 
 on was overdue at the time the witness indorsed it he may 
 testify to the time when it was negotiated, and to any other 
 facts which happened prior to that time, and which do not 
 affect the original validity of the note.* 
 
 So he may testify to the execution of the note,^ or that the 
 indorsement was in trust for persons other than the holders,^ 
 or to facts which transpired after the paper had passed out 
 of his hands.'^ In such a case, his liability to either party 
 being the same, he may prove a prior indorsement alleged to 
 have been a forgery.^ He may testify that he has paid the 
 note in suit, and that the plaintiff is but a trustee for him.^ 
 
 On the other hand, numerous cases uphold the contrary 
 doctrine, denying the competency of an indorser, where the 
 effect of his testimony would be to charge any party to the 
 instrument whose liability was anterior to that of the wit- 
 
 1 Stevens w. Lynch, 12 East, 38; s.c, S. P. "Warren v. Merry, 3 Mass. 27; 
 2 Campb. 332; Birti-. Kershaw, 2 East, White v. Kibling, 11 Johns. (N. Y.) 
 458 ; Eeay y. PackAvood, 7 Ad. & E. 128 ; Bryant v. Ritterhush, 2 N. H. 
 017; Bryant t. "Watriss, 13 Cal. 85; 212. Conira, Msbet ti. Lawson, 1 Ga. 
 Priest V. Bounds, 25 Cal. 188 ; Berry 275. Other cases only go so far as to 
 V. Hall, 33 Me. 403 ; Whiteford v. hold the indorser competent where 
 Munroe, 17 Md. 135 ; Zeigler !•. Gray, his liability has been in any way dis- 
 12 S. & R. (Pa.) 42; Oliver v. Presi- charged. Todd v. Hardy, Port, 
 dent &c., 11 Humph. (Tenn.) 74. (Ala.) 346 ; Carroll v. Meeks, 3 Id. 220; 
 
 2 Tomlinson v. Spencer, 5 Cal. 201. Briggs v. Moore, 14 Ala. 433 ; Brad- 
 See also Partee u. Silliman, 44 Miss, ley v. Morris, 4 111. 182; Evans r. 
 272. Smith, 34 Me. 33 ; Locke <;. Noycs, 9 
 
 3 Curtis V. Marrs, 29 111. 508 ; Buck N. II. 430 ; Farmers' Bank u. Griffith, 
 V. Appleton, 14 Me. 284. 5 Hill (N. Y.) 470; Bay v. Gunn, 1 
 
 * Adams v. Carver, G Me. 390. S.P. Den. (N. Y.) 108; Hepburn v. Cassel, 
 
 Smithwick v. Anderson, 2 Swan S. & R. (Pa.) 113. As where the 
 
 (Tenn.) 573. witness has become bankrupt, Murray 
 
 5 Goodwin ;;. Chadwick, 35 Me. 103; v. Marsh, 2 Hayw. (N. C.) 290, or re- 
 
 Richardsoni;. Lincoln, 5 Mete. (Mass.) ceived his discharge under an insol- 
 
 201. vent law. Murray v. Judah, Cow. 
 
 ° Barker v. Prentiss, Mass. 430. (N. Y.) 484. See also Isbell v. Brown, 
 
 ' Drake v. Henly, 1 Miss. (Walk.) 13 Ala. 383; Smith v. Northern Bank, 
 
 541; Girard Ins. Co. v. Marr, 40 Pa. 1 Mete. (Ky.) 575; Juniata Bank u. 
 
 St. 504. Brown, 5 S. & R. (Pa.) 220 ; Muirhead 
 
 3 Ellis V. Bervellier, 15 Ohio, 489. v. Kirkpatrick, 21 Pa. St. 237 ; Tildcn 
 
 » Maynard v. Nekervis, Pa. St. 81, v. Gardner, 25 Wend. (N. Y.) 603. 
 
65.J 
 
 PABTIES AND PEESONS INTEEESTED. 
 
 93 
 
 iiess"; ^ even though he swore that he had disposed of all his 
 interest in the note, and believed himself no longer respon- 
 sible on his indorsement.^ 
 
 Again, the earlier cases strenuously upheld the doctrine 
 that an indorser of commercial paper should in no case be 
 permitted, as a witness, to impeach the original validity of 
 the paper to which he had lent currency by his indorse- 
 ment.^ 
 
 Many American cases uphold this early English rule,* and 
 the witness has been held incompetent even after a confes- 
 sion of judgment by him,^ or even after being released from 
 all liability to the plaintiff.^ Thus, he was not permitted to 
 jirove that the bill sued on, though indorsed, still remained 
 the property of the payees;^ or that when the defendant 
 (the maker) signed the note in suit, the plaintiff (indorsee) 
 agreed not to call on him for payment in any event; ^ or that 
 in pursuance of an agreement betAveen himself and the 
 holder, the note had not been protested ; ^ nor could he testify 
 as to the handwriting of the maker.^" 
 
 1 Kennon v. M'Eae, 2 Port. (Ala.) 
 389; Herrick v. Whitney, 15 Johns, 
 (N. Y.) 240; Presbury v. Papin, 31 
 Mo. 490: Williams v. Brailsford, 25 
 Md. 126 ; Soul v. Dawes, 6 Cal. 473 ; 
 Craig D. Andrews, 7 Iowa, 17; Wil- 
 liams V. Banks, 11 Md. 198. Compare 
 Gorham v. Carroll, 3 Litt. (Ky.) 221. 
 
 2 Baskins v. Wilson, 6 Cow. (N. Y.) 
 471. 
 
 ^ The leading English case taking 
 this view is Walton v. Shelley, 1 T. R. 
 396, where an indorser of a note was 
 called as a witness to impeach its va- 
 lidity. He was held incompetent, the 
 court applying the maxim, "Nemo, 
 allegans suam turpitudinem, est audi- 
 endus," and saying that it was " of 
 consequence to mankind that no per- 
 son should hang out false colors to 
 deceive them, by first affixing his sig- 
 nature to a paper, and then afterwards 
 giving testimony to invalidate it." 
 
 The next case was Jordaine r. 
 Lashbrooke, 7 T. R. 599, where the 
 doctrine of Walton v. Shelley was 
 overruled, and the English rule has 
 since been that the indorser is compe- 
 tent to impeach the validity of the 
 
 paper, unless he is directly interested 
 in the event of the suit, or on other 
 grounds, disqualified. 
 
 * Walters v. Smith, 23 111. 342 ; Wal- 
 ters V. Witherell, 43 111. 388 ; Lincoln 
 V. Fitch, 42 Me. 456; Harding v. Mott, 
 20 Pa. St. 469. 
 
 6 Taylor I'. Beck, 3 Rand. (Va.) 316. 
 S. P. Hayes ;;. Gorham, 3 111. 429. 
 
 c Ward v. Tyler, 52 Pa. St. 393. 
 See also Steinmetz v. Curric, 1 Dall. 
 (U. S.) 234. 
 
 ' Mitchell V. Cooper, 17 Pa. St. 343. 
 
 ** Jarden .,. Davis, 5 Whart. (Pa.) 
 338. 
 
 5 Hinckley v. Walters, 9 Watts 
 (Pa.) 179. 
 
 ^o Geoghegan v. Eeid, 2 Whart. (Pa.) 
 152. In addition to those already 
 cited, the following American cases 
 uphold the rule that the indorser of 
 negotiable paper, indorsed when not 
 overdue, cannot impeach it in the 
 hands of an innocent indorsee. Scott 
 V. Lloyd, 12 Pet. (U. S.) 145 ; Bank 
 of Metropolis v. Jones, 8 Id. 12 ; Bank 
 of U. S. V. Dunn, 6 Id. 57. But the 
 Supreme Court of the United States 
 steadily refuse to apply the rule to 
 
94 
 
 COMPETENCY. 
 
 [chap. VI 
 
 The rule laid down in Walton v. Shelley is also adhered 
 to in some later cases in the Supreme Court of the United 
 States ; ^ but in many of the State courts of last resort it 
 has been rejected, and the general doctrine of Jordaine v. 
 Lashbrook followed.^ 
 
 When the indorser is offered to prove that the bill or note 
 sued on was rendered void at its inception by reason of the 
 usurious character of the contract itself, or in the rate of 
 discount taken, the weight of authority is in favor of his 
 competency ; ^ and the better opinion is that he may also be 
 admitted to prove want of consideration for the paper.* 
 
 other papers. United States v. Lefller, 
 11 Pet. (U. S.) 86. Henderson c. 
 Anderson, 3 How. (U. S. 73). Num- 
 erous decisions of State courts, also, 
 rendered before the passage of the 
 several enabling statutes, will also be 
 found to sustain the rule. "Webster 
 i: Vickers, 2 111. 295; "Walters v. 
 "Witherell, 43 111. 388; Dewey v. War- 
 riner, 71 111. 198 ; Shomburg v. Com- 
 magere, 10 Mart. (La.) 179; Cox v. 
 ■Willianis,17 Mart. (La.) 18 ; Deering 
 V. Sawtel, 4 Me. 191; Chandler v. 
 Morton, 5 Me. 374 ; Clapp v. Hanson, 
 15 Me. 345 ; Franklin Bank v. Pratt, 
 31 Me. 501 ; Lincoln v. Fitch, 42 Me. 
 450 ; Churchill v. Sutur, 4 Mass. 150 ; 
 Fox v. Whitney, 10 Mass. 118. In the 
 last case it is held that the rule 
 applies to indorsers, but not to the 
 original parties. See also, to same 
 effect, Davis v. Brown, 04 U. S. 427. 
 Packard v. Richardson, 17 Mass. 122; 
 Thayer v. Grossman, 1 Mete. (Mass.) 
 410, where the rule is held not 
 to apply to the case of a note in- 
 dorsed when overdue or dishonored. 
 S. P. Parke v. Smith, 4 Watts & S. 
 (Pa.) 287; Drake v. Henley, Walk. 
 (Mich.) 541 ; Iladduck v. "Wilmarth, 
 5 N. H. 187 ; Stone v. Vance, 6 Ohio, 
 240; Treon r. Brown, 14 Ohio, 482; 
 Bodkins v. Taylor, 14 Oliio, 489; 
 Eohner v. Morning Star, 18 Ohio, 579 ; 
 O'Brien v. Davis, Watts (Pa.) 498 ; 
 Harrisburg Bank v. Forster, 8 Watts 
 (Pa.) 304 ; Davenport r. Freeman, 3 
 Watts & S. (Pa.) 557; Gaul v. Willis, 
 26 Pa. St. 259 ; Nichols v. Holgate, 2 
 Aik. (Vt.) 138. But see Chandler r. 
 
 Mason, 2 Vt. 198, where this case is 
 disapproved. 
 
 1 Smyth V. Strader, 4 How. (U. S.) 
 404; Sweeny v. Easter, 1 Wall. (U. S.) 
 173. 
 
 2 Todd V. Stafford, 1 Stew. (Ala.) 
 199; Griffing v. Harris, 9 Port. (Ala.) 
 220 ; Townsend v. Bush, 1 Conn. 260 ; 
 Slack V. Moss, Dud. (Ga.) 161 ; Ring- 
 gold v. Tyson, 3 Har. & J. (Md.) 172; 
 Freeman !•. Britton, 2 Harr. (N. J.) 
 192; Stafford v. Rice, 5 Cow. (N. Y.) 
 23 ; Bank of Utica v. Hilliard, Id. 153 ; 
 Williams I'.Walbridge, 3 Wend. (N. Y.) 
 415; Guy v. Hall, 3 Murph. (N. C.) 
 151 ; Knight v. Packard, 3 McCord 
 (S. C.) 71; Stump o. Napier, 2 Yerg. 
 (Tenn.) 35; Taylor v. Beck, 3 Rand. 
 (Va.) 316. 
 
 5 Tucker v. Wilamonicz, 8 Ark. 157 ; 
 Bubier v. Pulsifer, 4 Gray (Mass.) 592 ; 
 Freemanu. Brittin, 2 Harr. (N. J.) 191 ; 
 Heath v. Everson, Id. 245; Tuthill o. 
 Davis, 20 Johns. (N. Y.) 285 ; Bank of 
 Auburn t. Walter, 23 Barb. (N. Y.) 
 441; Truscott v. Davis, 4 Id. 495; 
 Knight i.-. Packard, 3 McCord (S.C.) 
 71. To the contrary, see Mann , . 
 Swann, 14 Johns. (N. Y.) 270; Myers 
 V. Palmer, 18 Id. 167 ; Knights v. Put- 
 nam, 3 Pick. (Mass.) 184. So, also, it 
 seems he may disprove the alleged 
 usury. Barrets v. Snowden, 5 Wend. 
 (N. Y.) 181. 
 
 * Webster v. Vickers, 3 111. 295. 
 Contra, Stille v. Lynch, 2 Ball. (U. S.) 
 194 ; Dewey v. Warriner, 71 111. 198; 
 Harrisburg Bank u. Foster, 8 Watts 
 (Pa.) 304. 
 
§ 65.] PARTIES AND PEESONS INTERESTED. 95 
 
 Thus, tlie note having been negotiated when overdue, he 
 may prove that it had been paid before such negotiation.^ 
 
 Where the indorsement is special, e.g., "vs^ithout recourse,"^ 
 or "for collection,"^ or where at the time of indorsement 
 some agreement is made witli the holder restricting the lia- 
 bility of the indorser,* the latter is a competent witness in 
 an action on the paper so indorsed. 
 
 (6) G-uarantors or Sureties. It has been decided that a 
 guarantor of a promissory note, the effect of whose testi- 
 mony would be to render himself liable thereon, is a compe- 
 tent witness for the defendant in a suit against the maker, to 
 prove payment of the debt for which the note had been 
 pledged;^ but a guarantor "to pay the execution which may 
 be recovered on" a certain note, "in the lifetime of said exe- 
 cution," is interested to lessen the amount to be recovered, 
 and is not competent to prove a partial failure of considera- 
 tion.^ So, also, the guarantor or fraudulent assignor of a 
 note is not a competent witness for the assignee, in an action 
 against the maker, to support the consideration.^ And a 
 guarantor of the solvency of the maker is not a competent 
 witness to prove that the note was given without considera- 
 tion.^ 
 
 The suit being against the principal maker, a surety not 
 sued may testify for the maker.^ And he may show usury 
 in the note or transaction out of which it originated.^" So, 
 also, where two persons are sureties for the maker, and paj^- 
 ment of the note is enforced from one of them, in an action 
 by him against the principal to recover the amount of 
 money so advanced, the other surety is a competent witness 
 for the plaintiff.i^ 
 
 ^ American Bank i'.Jenness, 2 Mete, after the making of the agreement, 
 
 (Mass.) 288; Tliayer ;.. Grossman, 1 and Walton r. Shelley and Anderson 
 
 Id. 410 ; Rosevell v. Gardner, 2 Penn. v. Dunn are distinguished and limited. 
 
 (N. J.) 791. 5 Mayo v. Avery, 18 Cal. 309. 
 
 2 Boyd V. Mclvor, 14 Ala. 593 ; « Paine v. Hussey, 17 Me. 274. 
 Bailey v. Lumpkin, 1 Ga. 392; Mer- ' Brodnax k. Brodnax, 13 Sm. & M. 
 ritt V. Merritt, 20 111. 65 ; Abbott v. (Miss.) 369. 
 
 Mitchell, 18 Me. 355 ; Billingsly u. » Hanna v. Spencer, 3 Ind. 351. 
 
 Knight, Term (N. C.) 103. Oontra, » Atwood v. Wright, 29 Ala. 346. 
 
 Cummings u. Fisher, Anth. (N. Y.) 1. i» Webb t>. Wilshire, 19 Me. 406; 
 
 3 Sweeny v. Easter, 1 Wall. (U. S.) Phillips v. Caldwell, 2 Rich. (S. C.) 1 ; 
 166 ; Perry v. Siter, 37 Mo. 273. Nichols v. Bellows, 22 Vt. 581. 
 
 * Davis V. Brown, 94 U. S. 423. In n Benedict v. Hecox, 18 Wend, 
 this case the note was not transferred (N. Y.) 490. See infra, § 74. 
 
96 COMPETENCY. [CHAP. VI. 
 
 (7) Holders or Payees. In an action by a transferee of a 
 bill or note against the maker or drawer, the payee, espe- 
 cially if released,^ or not legally interested,^ was generally 
 admitted as a witness, to prove the execution of the paper 
 stied on,^ or a subsequent agreement between the maker and 
 himself, by which the note was to be extinguished,* or to 
 show the time,^ or circumstances and terms under which the 
 indorsement to plaintiff was made,® or the genuineness of 
 the maker's signature,'' or to prove the consideration.^ So 
 he was competent where his indorsement to the plaintiff was 
 " without recourse," ^ or after maturity,^" or the transfer was 
 by delivery only.^^ 
 
 Where the suit was against a subsequent indorser, -the 
 payee was held competent to testify to any fact which did 
 not impeach the genuineness of the paper, or go to its dis- 
 charge before or at the time when he parted with it.^^ 
 
 It was generally held that in au action by a subsequent 
 holder against the maker, the payee was competent to 
 impeach the validity of the note by showing want or failure 
 of consideration,!^ or alteration in a material part,!* or that 
 the paper was not transferred in the due course of trade.!*^ 
 In one case the payee was permitted to prove that the note 
 sued on was given without consideration, and that after it 
 
 ^ Matheny v. Westfall, 4 Blackf. hold that the payee of a promissory 
 
 (Ind.) 491 ; Leonard v. Wildes, 36 Me. note, who has negotiated it, is not a 
 
 265. competent witness for a subsequent 
 
 ^ School District v. Rogers, 8 Io,wa, holder in an action against the maker. 
 
 316. Bailey v. Knapp, 19 Pa. St. 192; Halz 
 
 ^ Matheny v. Westfall, supra. r. Snyder, 26 Id. 511 ; Foreman v. Ahl, 
 
 * Nash V. East, 19 La. Ann. 165. 55 Id. 325. Compare, as sustaining 
 
 ^ Spring V. Lovett, 11 Pick. (Mass.) the text, Smith v. Richmond, 19 Cal, 
 
 417. 476; Slack v. Moss, Dud. (Ga.) 161; 
 
 « Davis f. Sawtelle, 30 Me. 389; Nichols r. Artman, Harp. (S. C.) 285. 
 
 Stone V. Vance, Ohio, 246. 12 Hives v. Mutts, 25 111. 315. That 
 
 ' Bigelow V. Heyer, 3 Allen (Mass.) the payee of a note payable to hearer 
 
 243. is competent, see Rich v. Dupree, 14 
 
 SEvansi). Dela, 35Pa. St. 451. See Ga. 661 ; Whitaker i--. Brown, 8 Wend. 
 
 Dela y. Evans, 3 Phil. (Pa.) 397. (N. Y.) 490. Contra, see Rice v. 
 
 « Edgerly v. Shaw, 25 N. II. 514. Stearns, 3 Mass. 225. And see Da- 
 
 i» Seeley v. Engell, 17 Barb. (N. Y.) vidson v. Love, 1 Ala. 133. 
 
 530; Lane v. Padelford, 14 Me. 94. ^^ Davidson w. Love, supra,- Manning 
 
 n Evans i'. Dela, supra ; Calkins i'. c. Manning, 8 Ala. 138 (a gaming 
 
 Packer, 21 Barb. (N. Y.) 275. note) ; State Bank v. Seawell, 18 Ala. 
 
 The principles stated in the te.xt 616 ; Hawkins v. Cree, 37 Pa. St. 494. 
 
 seem to be in accordance with the " Smith i-. Cheney, 1 Hill (S.C.) 148. 
 
 great weight of authority, but there is ^^ Bailey v. Cooper, 5 Humpli. 
 
 no lack of respectable decisions which (Tenn.) 400. 
 
§ 65.J PARTIES AND PEESONS INTERESTED. 97 
 
 had been paid and given up to tlie promisor, it was again 
 placed in the hands of tlie paj'ee for another purpose than 
 that of being paid, and that a subsequent indorser took it 
 with notice of all these facts.^ In all these cases the objec- 
 tion goes to the credibility, not to the competency of the 
 witness; but a contrary rule is maintained in some jurisdic- 
 tions.^ 
 
 Again, the weight of opinion is that the payee may prove 
 that the note had been paid to him before he transferred it,^ 
 or that it was tainted with usury.* So, also, in support of the 
 action, where the maker's defence is the statute of limitations, 
 the payee may prove a new promise within the six years,^ or 
 a partial payment relied on to take the case out of the 
 statute ; ^ such testimony being clearly against interest. 
 
 (8) Parties to Accommodation Paper. The early cases 
 deny the competency of the maker of an accommodation note 
 to testify for the accommodation indorser, in an action 
 against the latter by the holder, on the ground of the 
 maker's interest, even where that interest is limited to the 
 question of costs ; '' and the same rule of exclusion was 
 applied to the drawer of a bill, whose testimony was offered 
 by the acceptor when sued by the holder.* Thus, the maker 
 or drawer was not permitted even to show usury in such 
 cases,^ and that, too, where the usurer himself was the 
 
 ■■ Fish u. French, 15 Gray (Mass.) (N.Y.) Cas.60; Williams ». Matthews, 
 
 520. 3 Cow. (N. Y.) 252; Beggs v. Butler, 
 
 2 Wilson u. Walker, 4 Houst. (Del.) 9 Paige (N. Y.) 226; Wallace v. 
 
 96 ; Coon r. Nock, 27 111. 235 ; Strang McElevy, 2 Grant (Pa.) Cas. 44 ; Scull 
 
 r. Wilson, 1 Morr. (Iowa) 84 ; Clapp v. Mason, 43 Pa. St. 99 ; Benior v. 
 
 V. Hanson, 15 Me. 346; Kobbe u. Paquin, 40 Vt. 199, in all of which 
 
 Landecker, 32 Mo. 170 ; Rosenberger cases the holder of the paper was held 
 
 0. Bitting, 15 Pa. St. 278 ; Foreman v. competent ; and compare Harbin v. 
 
 Ahl, 55 Id. 325. Roberts, 33 Ga. 45 ; Cushman v. 
 
 8 Smith V. Morgan, 38 Me. 468; Downing, 29 Me. 459; Shaver u. Ehle, 
 Williams v. Miller, 10 Sm. & M. (Miss.) , 16 Johns. (N. Y.) 201 ; Brown v. Street, 
 139 ; Fitch v. Hill, 11 Mass. 286 ; Bry- ' 6 Watts & S. (Pa.) 221, where the con- 
 ant l: Ritterbush, 2 N. H. 212 ; Bobo trary was held. 
 V. Bostick, 2 Bail. (S. C.) 106. ' Chur v. Keckeley, 1 Bail. (S. C.) 
 
 * Harvey v EUithorpe, 26 111. 418 ; 479 ; Bank of Charleston v. Chambers, 
 
 Richards !'. Marshman, 2 Greene 11 Rich. (S. C.) 657. 
 
 (Iowa) 217 ;Pratherjj.Lentz,OBlackf. 8 g^ith o. Thorne, 9 Watts (Pa.) 
 
 (Ind.)244; Ringgold u. Tyson, 3 Har. 144; Ford v. Nichols, 3 Gratt. (Va.) 
 
 & J. (Md.) 172. 88. 
 
 ^ Howe V. Thompson, 11 Me. 152. ^ Cowles <^. Wilcox, 4 Day (Conn.) 
 
 « Sibley v. Lumbert, 30 Me. 253. 108. 
 See also Jones v. Hake, 2 Johns. 
 
98 
 
 COMPETENCY. 
 
 [chap. vr. 
 
 plaintiff.i But where the defendant executed a release to 
 the witness, he was held competent to testify for or against 
 him.2 
 
 In Pennsylvania it was held that the maker was competent 
 to prove facts dehors the note, showing an agreement for 
 satisfaction of it, tantamount to payment, the rule being that 
 it is the character of the testimony, rather than the relation 
 of the party to the instrument, that governs the question of 
 the admissibility of such a witness; and that if the witness 
 be not involved in the immediate result of the suit, the 
 policy of the law only holds him to silence in regard to acts 
 which might invalidate the paper in its original concoction, 
 or the consideration of the indorsement.^ 
 
 (9) Parties to, or Holders of. Forged Paper. The rule was 
 well settled at common law, that in a prosecution for forgery, 
 the person whose name was alleged to have been forged was 
 a competent witness to prove the forgery.* He could testify 
 
 1 Chandler v. Morton, 5 Me. 374. 
 
 2 Southard r. Wilson, 21 Me. 494 ; 
 Commercial Bank u. Whitehead, 4 
 Ala. 037 ; Darling v. March, 22 Me. 
 184; Bird r. Cole, 6 Mete. (Mass.) 
 320; Bowne u. Hyde, Barb. (N. Y.) 
 392 ; Branch Bank v. Coleman, 20 
 Ala. 140 ; Kennedy v. Lancaster 
 County Bank, 18 Pa. St. 347. 
 
 3 Work V. Kase, 34 Pa. St. 138. The 
 same court held, in an earlier case, 
 that in an action to recover from a 
 prior indorser the amount advanced 
 to take up a note, the maker was a 
 competent witness to prove that the 
 note M'as indorsed for the accommoda- 
 tion of the party making the advance. 
 Wright V. Truefitt, 9 Pa. St. 507. As 
 to when the acceptor of an accommo- 
 dation bill was considered competent 
 to prove the bill an accommodation 
 bill, or to show usury, see Knowles v. 
 Stewart, 2 Cr. C. C. 457 ; Orr v. Lacey, 
 2 Dougi. (Mich.) 230. When the 
 payee was admitted to testify to the 
 same matters, see Lyon u. Boilvin, 7 
 111. 629; Newell v. Hatton, 10 Gray 
 (Mass.) 349; Bank of Penn. v. McCal- 
 mont, 4 Rawle (Pa.) 307 ; Robertson 
 V. Stewart, 5 Watts (Pa.) 442. To the 
 contrary, see Finnell v. Cox, 3 Mete. 
 (Ky.) 245; Letson v. Dunham, 2 Gr. 
 
 (N. J.) L. 307; Gilderslecve v. Mar- 
 tine, 19 N. Y. 321. As to the compe- 
 tency of the indorser in such cases, see 
 Hall V. Hale, 8 Conn. 336 ; Greenough 
 u. AVest, 8 N. H. 400 ; Bank of Mont- 
 gomery V. Walker, 9 S. & E. (Pa.) 
 229; Mitchell v. Conrow, 5 Whart. 
 (Pa.) 572; Barton v. Fetherolf, 39 Pa. 
 St. 279; Jones v. Matthews, 8 Lea 
 (Tenn.) 84; s. c, 41 Am. Rep. 633. 
 
 * Simmons !•. State, 7 Ohio, Pt. L 116 ; 
 Pennsylvania ;■. Parrel, Add. (Pa.) 
 240 ; Noble v. People, 1 111. 29 ; Com- 
 monwealth V. Hutchinson, 1 Mass. 7 ; 
 Commonwealth u. Snell, 3 Id. 82; 
 Commonwealth v. Waite, 5 Id. 261 ; 
 People V. Dean, 6 Cow. (N. Y.) 27 ; 
 Respublica v. Wright, 1 Yeates (Pa.) 
 401; Pope v. Nance, 1 Stew. (Ala.) 
 354; State c. Phelps, 11 Vt. 110; 
 State I'. Shurtliff, 18 Me. 308; Com- 
 monwealth V. Peck, 1 Mete. (Mass.) 
 428; State!'. Brunson, 1 Root (Conn.) 
 307; Bacon v. Minor, Id. 258; State 
 V. Blodgett, Id. 534 ; State r. Whitten, 
 1 Hill (S. C.) 100. And see White 
 V. Green, 5 Joues (N. C.) L. 47. Gon- 
 tra,in an early case in Vermont, under 
 the provisions of a statute disallowing 
 the evidence of the " party aggrieved " 
 in certain prosecutions. State v. A. 
 W., 1 Tyler (Vt.) 200. 
 
§ 66.] PAETIES AND PERSONS INTEEESTED. 99 
 
 in such cases even though a civil action was pending against 
 him, to which the proof of forgery would be a sufficient 
 defence;^ and the person to whom the forged instrument 
 was passed was also a competent witness;^ so was the cash- 
 ier of the bank from which the forged paper purported to 
 have been issued.^ But the bona fide indorser, unless he had 
 paid the note, was excluded.* 
 
 § 66. Non-negotiable Paper, Parties to. — It was well settled 
 at common law, that in the case of non-negotiable paper, any 
 party to the paper was competent as a witness to prove it 
 void : in such a case there was no hona fide purchaser for 
 value and without notice, to be protected.^ Thus a party 
 to a sealed note was held competent to prove an extension 
 of time to himself, thereby discharging another party, who 
 was a surety, under a plea of payment, and a special plea of 
 the extension.^ So, also, the assignee of such a note was 
 competent to prove payment to himself,''' and the maker, to 
 prove payment to the payee, ^ or to testify as to the validity 
 of the consideration of the note.^ And where there were 
 two joint makers, only one of whom was sued, the other was 
 held competent on being released by the defendant.^" 
 
 § 67. Obligor or Obligee. — (1) Olligor. In a compar- 
 atively early case in the Supreme Court of the United States 
 it was decided that one of the principals in a bond, released 
 by his co-obligors, is admissible to prove that one of them 
 agreed to sign the bond on condition that another person 
 should also sign it, which was not done.^^ The court limited 
 
 J Commonwealth v. Peck, 1 Mete, eration was competent to impeach it, 
 
 (Mass.) 428. But see State !'. Stanton, where he was not interested, or was 
 
 1 Ired. {N. C.) L. 424. released, except in cases where a party 
 
 2 State V. Nettleton, 1 Boot (Conn.) to negotiable paper was prevented 
 
 308. from impeaching it. Topping v. Van 
 
 a Com. V. Eead, Thach. (Mass.) Cr. Pelt, 1 Hoffm. (N. Y.) 545. Compare 
 
 180. Cameron v. Paul, 6 Pa. St. 322. 
 
 4 Respuhlica v. Eoss, 2 Yeates (Pa.) ^ Miller v. Stem, 2 Pa. St. 286. 
 1; s. c, 2 Dall. (U. S.) 239. ' Johnson v. Blackman, 11 Conn. 
 
 6 Watts V. Smith, 24 Miss. 77 ; 342. 
 Brown v. Babcock, 3 Mass. 29; Hill » )?itch v. Boardman, 12 Conn. 345. 
 
 V. Payson, Id. 559 ; Worcester u. Contra, see Corgan v. Prew, 39 III. 31. 
 Eaton, 11 Id. 368 ; Loker v. Haynes, ^ Fosdick u. Starbuck, 4 Blackf. 
 
 Id. 498 ; Hudson v. Hurlbert, 15 Pick. (Ind.) 417. 
 
 (Mass.) 423. In an early New York " Cameron v. Paul, 6 Pa. St. 322. 
 case in the Court of Chancery it was " United States v. Leffler, 11 Pet. 
 
 held that one who had transferred (U. S.) 86. 
 such an instrument for a good consid- 
 
100 COMPETENCY. [CHAP. VI. 
 
 the rule of exclusion to parties to negotiable instruments; and 
 such has been the rule in that court since. So, also, in Ken- 
 tucky it is held that in an action at law against one of two 
 co-obligors, the other is a competent witness for the obligee ;^ 
 and where an officer was sued for not levying an execution 
 issued upon a replevin bond, an obligor in the bond was held 
 competent to show that it was not acknowledged according 
 to law.2 So, in an early New York case, a co-obligor, not 
 sued, was permitted to prove the terms on which a joint and 
 several bond had been executed, the suit being commenced 
 against a part only of the obligors.^ Again, one of several 
 obligors has been held a good witness for the defendant in 
 an action on the bond against a co-obligor.* But in Ala- 
 bama, one of two obligors in a bail bond was not permitted 
 to prove that his co-obligor executed the instrument.^ 
 
 (2) Ohligee. Where the obligee in a bond assigns it, he 
 is incompetent to defeat the rights of his assignee, by proving 
 payment,^ or that the consideration was usurious.^ 
 
 § 68. Officers. — -The same disqualification by reason of 
 interest in the event applied to public officers, in the like 
 manner as to private individuals. Thus an officer whose fees 
 depended on the contingency of the conviction of one accused 
 was held an incompetent witness on his trial.^ And even 
 where, by statute, the officer was rendered competent in 
 certain cases, notwithstanding the interest entailed by his 
 office, this did not prevent him from becoming incompetent 
 by the assumption of an interest not imposed by his official 
 j)osition.^ But it was held in an early Massachusetts case, 
 that where an officer would be liable, as a trespasser, for 
 arresting a prisoner, if arrested wrongfully, the objection to 
 
 1 Williams v. Cummins, 6 T. B. North Carolina, see Ex parte Macay, 
 Mon. (Ky.) 157; Long v. Ray, 1 Dana 84 N. C. 63. 
 
 (Ky.) 430. 6 Canty v. Sumter, 2 Bay (S. C.) 
 
 2 Williams u. Hall, 2 Dana (Ky.) 93; Stroh v. Hess, 1 Watts & S. (Pa.) 
 97. 147. 
 
 3 Lovett u. Adams, 3 Wend. (N. Y.) 'Gilliam v. Clay, 3 Leigh (Va.) 
 381. 590; Wise v. Lamb, 9 Gratt. (Va.) 
 
 * Ligon V. Dunn, 6 Ired. (N. C.) L. 294. But that, in some instances, lie 
 
 133; Ely V. Hager, 3 Pa. St. 154. To may testify in support of the assignee's 
 
 the contrary, Callaway v. Craig, 9 Mo. action on the bond, see Cox v. Way, 3 
 
 846. Blackf. (Ind.) 143. 
 
 ^ Whatley W.Johnson, 1 Stew. (Ala.) 8 Briijgeford ». City of Lexington, 
 
 498. See also Douglass v. Owens, 5 7 B. Mon. (Ky.) 47. 
 
 Rich. (S, C.) 149. As to the rule in » Bean v. Lane, 15 Me. 190. 
 
§C8.J 
 
 PARTIES AND PERSONS INTERKSTED. 
 
 101 
 
 the ofQcer as a witness, on the trial of the prisoner, went 
 only to his credibility, and not to his competency.^ So, also, 
 the testimonj' of an ofGcer who had seized liquors kept for 
 sale contrary to law, as to their identity, was held unob- 
 jectionable.^ 
 
 1 Commonwealth v. Merril, Thacli. 
 (Mass.) Cr. Cas. 1. 
 
 2 State V. Bartlett, 47 Me. 000. See 
 also Thornton v. Stoddcrt, 1 Cr. C. C. 
 G34; Fiedler v. Smith, 6 Cush. (Mass.) 
 3JU. 
 
 An examination of the cases cited 
 below will serve to show to what ex- 
 tent the several classes of public 
 officers were admitted as witnesses, 
 at the common law, notwithstanding 
 the objection of interest : 
 
 Clerks of Cow'ts. Elkins v. State, 
 13 Ga. 435; Ballard v. Bancroft, 31 
 Ga. 503 ; Durham y. Heaton, 28 111. 
 2G4; Taylor v. Commonwealth, 3 Bibb 
 (Ky.) 350. 
 
 Collectors of taxes and tolls. The 
 Treasurer v. Nail, 1 Tayl. (N. C.) 5; 
 Smith V. State, 18 Ohio, 89. 
 
 Commissioners. Appeal of Brooks, 
 32 Cal. 558; Smyth v. Bradstreet, 5 
 Cow. (N. Y.) 213 ; Cannell v. Crawford, 
 59 Pa. St. 196 ; State v. Davidson, 1 
 Bail. (S. C.) 35; Gordon v. Sims, 2 
 McCord (S. C.) Ch. 151. 
 
 Constables and Bailiffs. Roberston 
 V. Coker, 11 Ala. 4G6 ; McGrew v. The 
 Governor, 19 Ala. 89; Hosea v. Kin- 
 ney, 1 Houst. (Del.) 141; Stow a. 
 Gregory, 8 111. 575 ; Linsee v. State, 5 
 Blackf. (Ind.) 001 ; Lucas v. Cassady, 
 2 Greene (Iowa) 208; Day v. Hall, 7 
 llals. (N. J.) 203; Hatch v. Bartle, 45 
 Pa. St. 106. 
 
 County treasurers. Douglass !■. Ter- 
 rell, 11 Ala. 583 ; Shelly v. Lash, 14 
 Minn. 408. 
 
 Judges and Justices. Oliver v. State, 
 17 Ark. 508 ; Justices v. House, 20 Ga. 
 323 ; Rogers v. Mandervillc, Id. 027 ; 
 Haven v. Green, 20 111. 252 ; Highber- 
 gert). Stiffler, 21 Md. 338; Taylor v. 
 Larkin, 12 Mo. 103; Jackson v. Hum- 
 phrey, 1 Johns. (N. Y.) 408; People 
 V. Miller, 2 Park. (N. Y.) Cr. 107; 
 Matter of Ilcyward, 1 Sandf. (N. Y.) 
 701; McMillen v. Andrews, 10 Ohio 
 
 St. 112 ; Truman v. Lore, 14 Id. 144 ; 
 
 Price V. Gregory, 4 McCord (S. C.) 
 
 201. 
 
 Notaries public. Cookendorfer v. 
 
 Preston, 4 How. (U. S.) 317 ; Johnson 
 
 V. Harth, 2 Bail. (S. C.) 183. 
 
 Postmasters. Coleman v. Prazicr, 4 
 
 Rich. (S. C.) 14C. 
 
 Referees. Morss i). Morss, 11 Barb. 
 
 (N. Y.) 510. 
 Registers of land. Hall v. Gough, 1 
 
 Har. & J. (Md.) 119. 
 
 School treasurers. Marks v. Butler, 
 
 24 111. 507. 
 
 Sheriffs. McCollum v. Hubbert, 13 
 
 Ala. 282 ; Graves v. Merwin, 19 Conn. 
 
 96; Lambden v. Conoway, 5 Harr. 
 
 (Del.) 1; Hughes v. McClelland, 4 
 
 Ind. 92 ; Draper v. Vanhorn, 15 Ind. 
 
 155; Taylor v. Galland, 3 Greene 
 
 (Iowa) 17; Merrill v. Housley, 2 Litt. 
 
 (Ky.),277 ; Kelly v. Lank, 7 B. Mon. 
 
 (Ky.) 220; Bridge v. M'Lane, 2 Mass. 
 
 520; Crowe v. Peters, 03 Mo. 429; 
 Meserve v. Hicks, 24 N. H. 205 ; RciJ 
 
 V. Powell, 2 Murph. (N. C.) 53 ; Mere- 
 dith V. Shewell, 1 Pa. 405 ; Bowen v. 
 Burk, 13 Pa. St. 140 ; Linton v. Ford, 
 40 Id. 204; Hunter v. .Stevenson, 1 
 Hill (S. C.) 415; Shannon v. McMul- 
 lin, 25 Gratt. (Va.) 311; Eaton v. 
 Gentle, 1 Chand. (Wis.) 10. 
 
 Deputy sheriffs and Jailors. State v. 
 Gemmill, 1 Houst. (Del.) 9; Glenn v. 
 Black, 31 Ga. 393 ; Ryder v. Buck- 
 master, 4 111. 106; Jenncy v. Delesder- 
 nier, 20 Me. 183; Rice v. Wilkins, 21 
 Me. 558 ; Jewett v. Adams, 8 Mc. 30 ; 
 Turner v. Austin, 10 Mass. 181 ; Per- 
 kins V. Pitman, 34 N. H. 201 ; Patten 
 u. Halstead, Coxe (N. J.) 277 ; Stewart 
 V. Kip, 5 Johns. (N. Y.) 250 ; State v. 
 Simpson, 1 Jones (N. C.) L. 80 ; Juni- 
 ata Bank v. Beale, 1 AVatts & S. (Pa.) 
 227; Dorrance v. Com. 13 Pa. St. 
 100 ; Dean v. Swift, 11 Vt. 331 ; Hop- 
 kinson v. Holmes, 18 Vt. 18 ; Allen !•. 
 Carty, 10 Vt. 05 ; Ferris v. Smith, 24 
 
102 COMPETENCY. [CHAP. VI. 
 
 § 69. Parent or Child. — (1) Parent. Where, at common 
 law, a conveyance from a father to his son is alleged to be 
 fraudulent, and a suit in chancery is brought for relief, the 
 father is a competent witness for the son, who is a co-defend- 
 ant.^ So, also, a father who has assigned a mortgage to his 
 son, in consideration of natural affection, and Avho intended 
 to charge it as an advancement, if realized, is competent to 
 sustain the mortgage, however his position might affect his 
 credibility.^ And a father who has settled property upon 
 trustees for the benefit of his married daughter is competent 
 for the trustees in a suit between them and the creditors of 
 the husband who are seeking to subject the property to the 
 payment of the latter's debts.^ Again, in trespass against a 
 aiiinor son, his father, by whose order the trespass was com- 
 mitted, is competent for the defendant ; * and so is he where 
 the son is prosecuted criminally.^ But it has been held that 
 a father, who is heir at law of his son, is not a competent 
 witness for his administrator ; ^ and that a grandfather can- 
 not testify for his grandchild.'' 
 
 In North Carolina it was held that there is no rule of law 
 that the fact that a witness stands in the relation of mother 
 to one of the parties naturally gives a bias to her statement 
 so as to affect the accuracy of her recollection ; but such 
 relation is a matter for the consideration of the jury alone ; ^ 
 and in New York, in an action for damages for causing death 
 " by wrongful act, neglect or default," the mother of the 
 deceased is a competent witness, notwithstanding the fact 
 that she is his sole distributee and next of kin.^ 
 
 Vt. 27; Brent v. Green, 6 Leigh (Va.) 'Succession of Hargis, 3 La. Ann. 
 
 16 ; Wilson v. Alexander, 9 Id. 459. 142. 
 
 Surveyors. Jones v. Bache, 3 Wash. * AViseman v. Cornish, 8 Jones (N. 
 
 C. C. 199; Bowling v. Helen, 1 Bibb. C.) L. 218. 
 
 (Ky.) 88. 9Quini;. Moore, 15 N. Y. 432. As 
 
 ' Mixell V. Lutz, 34 111. 382. to the competency of the mother of a 
 
 2 Vanmeter i\ McFaddin, 8 B. Mon. bastard child in an action for mainte- 
 
 (Ky.) 435. See also Stiles v. Hooker, nance, or to prove non-access of her 
 
 7 Cow. (N. Y.) 266. husband, see Bacon u. Harrington, 5 
 
 oQ'NeiU'. Teague, 8 Ala. 345. Pick. (Mass.) 63; People v. Ontario, 
 
 * Alderman v. Tirrell, 8 Johns. (N. 15 Barb. (N. Y.) 286. That a mother- 
 
 Y.) 418. in-law may testify for the son-in-law, 
 
 'Cass V. State, 2 Greene (Iowa) 353. and vice versa, see Groves v. Steel, 2 
 
 i^Botts I/. Pitzpatrick, 5 B. Mon. La. Ann. 480; Eachal v. Raehal, 4 Id. 
 
 (Ky.) 397; Cushman o. Blakesly, 3 500; King i;. Neely, 14 Id. 165. But 
 
 Greene (Iowa) 542. see Hall v. Hill, 6 Id. 745. 
 
§ 69.] PARTIES AKD PERSONS INTBIl]ESTED. 103 
 
 (2) Child. luflepenclently of statute, the son of one 
 charged with crime has been held competent to testify for 
 his father, thougli not, it seems, in a prosecution to reco-ver 
 a civil penalty .1 So in an action by the father for labor and 
 services performed by the son, the latter was held competent 
 for the plaintiff.^ And where land was held in trust for A 
 for life, with power of appointment to her among her chil- 
 dren, her son was held competent for the plaintiff in a suit 
 to recover land sold in violation of the trust.^ 
 
 But the son of au intestate was not admitted to prove that 
 his father did not execute a note, on which it was attempted 
 to charge the estate.* And where, in a suit against two, one 
 died pending the suit, his son was held incompetent, even in 
 the absence of a suggestion of the death upon the record.^ 
 
 In Mississippi a daughter was held competent to testify 
 for her mother in a suit between her and a third person, the 
 mother claiming the property in controversy, although her 
 testimony might go to show title in her deceased father to 
 the property.^ And in an action for entering the plaintiff's 
 house, and debauching his daughter, the daughter was 
 admitted as a witness in a very early case.' 
 
 Grandchildren were admitted, against the objection of 
 interest, in a suit to set aside a deed executed by their grand- 
 father, for incapacity. The court held their interest to he 
 contingent and not certain.^ But natural children were 
 rejected in a controversy relating to the succession of the 
 deceased natural father.^ And so was a son-in-law, in a suit 
 by the executor of tlie father-in-law, although it did not 
 appear that he was interested.^" 
 
 1 State u. Thompson, lOLa. Ann. 122. not a person "for whose immediate 
 
 ^Keen u. Sprague, 3 Me. 77. See benefit "an action by his administra- 
 
 also Belt v. Miller, 4 Har. & M. (Md.) tor, to foreclose, is prosecuted, and 
 
 536. is therefore a competent witness. 
 
 s Murray v. Finster, 2 Johns. (N. Y.) Butler v. Patterson, 13 N. Y. 292. 
 
 Ch. 155. Compare McClung u. Spots- « Parker u. McNeill, 12 Sm. & M. 
 
 wood, 19 Ala. 165; Aiken v. Cato, 23 (Miss.) 355. 
 
 Ga. 154; Mester u. Zimmerman, 7 ' Mott b. Goddard, 1 Root (Conn.) 
 
 Bradw. (111.) 156. 472. 
 
 ^Mclntyre v. Middleton, 1 Sm. & M. ^Highberger v. Stiffler, 21 Md. 338. 
 
 (Miss.) Ch. 91. 5 Lazare v. Jacques, 15 La. Ann. 
 
 ^Shepard v. Ward, 8 Wend. (N. Y.) 599. 
 
 542. But in New York it is held that i" M'Kinney u. M'Kinney, 2 Stew, 
 
 the son of a deceased mortgagee is (Ala.) 17. 
 
104 COMPETEKCY.. [CHAP. VI. 
 
 § 70. Partners. — (1) In General. As a general rule, one 
 of two or more co-partners was not permitted to appear as a 
 witness, at common law, either for or against his co-partners, 
 to testify respecting any matter in which the firm, as such, 
 was interested , one reason being that his testimony, if 
 favorable to himself, would necessarily tend to increase the 
 liability of his associates to third persons, or to diminish his 
 own liability to his co-partners. Another reason was that his 
 interest prompted him to shield the firm of which he was a 
 member, and with the other members of which he was jointly 
 liable. Thus one partner could not prove the existence of 
 the partnership , ^ or that a partnership debt had been paid ; ^ 
 or that one of the other partners used firm money to pay his 
 individual debts, ^ or that money raised on the individual 
 note of the witness was obtained on the credit of the firm, 
 and was used for its benefit.* 
 
 But one partner was admitted as a witness for the other 
 in a matter in which they had no joint interest.^ And 
 another rule was that one who was interested in the profits, 
 but not liable for the losses of the firm, could be a witness for 
 the firm after he had released all his interest in the suit.® 
 So, also, a partner who sold partnership property was a com- 
 petent witness for the purchaser, where the title to the prop- 
 erty was brought in question, on being released by him ; for 
 the release discharged all the liability of the witness, whether 
 it did that of the co-partner or not.^ 
 
 Where the suit was instituted hy the firm, one partner 
 could not prove a debt due to the firm ; ^ or the value of ser- 
 vices rendered by the firm, in an action on a quantum meruit ; " 
 or the amount of damages sustained by the firm by reason of 
 
 'Miller v. McClenachan, 1 Yeates Coulter, 1 South. (N. J.) 208. See 
 
 (Pa.) 144; Spaulding z;. Smith, 10 Me. also Grant o. Shurter, 1 Wend. (X. 
 
 363; Scott t: Bandy, 2 Head (Tenn.) Y.) 148; Sloan v. Bangs, 11 Rich. (S. 
 
 197. But see Rich v. Flanders, 39 N. C.) 97. 
 H. 304. Curcier u. Pennock, 14 S. & R. 
 
 2 Gardner v. Leraud, 2 Yeates (Pa.) (Pa.) 51. 
 185. "Churchill v. Bailey, 13 Me. 04. 
 
 ' Purviance t>. Dryden, 3 S. & R. See also Ward v. Chase, 35 Me. 515; 
 
 (Pa.) 402. Thompson v. Pranks, 37 Pa. St. 327. 
 
 * Foster v. Hall, 4 Humph. (Tenn.) ^Porclie v. Le Blanc, 12 La. Ann. 
 
 346. S. P. Scott V. Bandy, supra. 778. 
 
 ''Mooreman v. De Graffenread, 2 ^Schnader u. Schnader, 26 Pa. St. 
 
 Mill (S. C.) Const. 195; Ward v. 384. 
 
§ 70.] PARTIES AND PERSONS INTERESTED. 105 
 
 a personal injury inflicted upon one of its members.^ In all 
 such cases the witness could not remove his interest by his 
 own act, and become competent against the consent of the 
 defendant ; ^ but in some cases a release would render the 
 witness competent.'^ Still the co-plaintiff partner, if willing 
 so to do, was deemed competent to testify for the defendant.* 
 
 Where the suit was against the firm, the general rule was 
 that a partner not disqualified on the ground of interest was 
 competent to testify against hi^ co-partners.'^ So held where 
 several were sued jointly as partners, and onfe of them 
 answered separately, denying that he was a partner, the 
 court admitting his co-defendants as to such defence, as it 
 Avas not a matter in which they were jointly interested or 
 liable with liim.^ Accordingly, a plaintiff in chancery is 
 entitled to the testimony of one or all of the defendants, sued 
 as partners.'' 
 
 On the other hand, one partner could not, in general, tes- 
 tify iu favor of his associate defendants, especially if a judg- 
 ment might be rendered against the proposed witness,^ to 
 prove a defence which would be common to both.^ Thus 
 one partner could not prove payment by the other of a judg- 
 ment against the firm, since if the defence prevailed, he would 
 no longer be liable to the creditor for the whole amount, but 
 only for one-half, to his co-partner.^" But when released by 
 all the other members of the firm, he was generally admitted.^^ 
 
 1 Blair v. Milwaukee &c. K. E. Co., 272, where a contrary doctrine seems 
 
 20 Wis. 262. to be held. So where defendant is 
 
 ' Loomis !.'. Loomis, 26 Vt. 198. In sued as a partner on an obligation not 
 
 such cases the court should hear the signed by him or with his name, the 
 
 evidence and decide on it whether the members of the firm are competent 
 
 witness was competent or not. Lyon witnesses for him, to prove that he 
 
 V. Daniels, 14 Pa. St. 197. See also was not a partner. James v. Brooke, 
 
 Thomas v. Brady, 10 Id. 164; Thrall 15 La. Ann. 541. But not to prove 
 
 1,. Seward, 37 Vt. 57.3. the converse. Scott v. Bandy, 2 Head 
 
 8 White u. Tucker, 9 Iowa, 100; (Tenn.) 197. 
 
 Chapman v. Andrews, 3 Wend. (N. ' Williamson v. Haycock, 11 Iowa, 
 
 Y.) 240. 40. 
 
 * Cunningham v. Carpenter, 10 Ala. ^ Wilson v. Clark, 27 Miss. 270. 
 
 109 ; Moddewell u. Kcever, 8 Watts « City Bank c. McChesney, 20 N. 
 
 & S. (Pa.) 63 ; Canon v. Campbell, 18 Y. 240; Ward v. Woodburn, 27 Barb. 
 
 Pa. St. 164 ; Young y. Reed, 25 Tex. (N. Y.) 346. 
 
 (Supp.) 113. 10 Ellis V. Fisher, 10 La. Ann. 479. 
 
 5 Bell V. Thompson, 34 111. 529. " Curtis v. Monteath, 1 Hill (N. Y.) 
 
 Hubbell v. AVoolf, 15 Ind. 204. 356 ; Jackson v. Jones, 13 Ala. 121. 
 But sec Bailey v. Doak, 13 La. Ann. 
 
106 COMPETENCY. [CHAP. VI. 
 
 In a dispute between partners, it lias been lield tl:at one of 
 the firm is competent to prove claims of other members who 
 call him as a witness, but not to diminish claims set up 
 against the firm by partners who did not so call him ; ^ or 
 where the effect of a judgment in favor of those calling him 
 would be to discharge a claim for which he remains jointly 
 liable.^ For the same reason where it was claimed that a firm 
 was liable for the board of one of the partners, another part- 
 ner was held incompetent to prove that fact.^ 
 
 (2) Partner not sued. As a general rule, the fact that the 
 proposed witness, though a partner with the other defend- 
 ants, was not made a party to the suit, did not remove his 
 incompetency, for it was his interest in the event, not his 
 position as a party to the controversy, which disqualified 
 him. When not sued, his liability to his co-partner for con- 
 tribution, in the event of a recovery by the plaintiff, caused 
 his exclusion.* It was even held that a release by the defend- 
 ant of record (his partner) would not render the witness 
 competent for him, his liability to the plaintiff still subsisting.^ 
 The same rule was applied where both partners were sued but 
 one only was served with process and the one not served did 
 not appear.^ So, also, the proposed witness was not permitted 
 to testify for the plaintiff, to prove that the defendant was a 
 partner of the witness, and thus jointly liable with him for 
 the debt sued on.'' 
 
 On the other hand, it was held in some jurisdictions that 
 he could, as a witness for the plaintiff, prove the cause of 
 
 1 Garner v. Beatty, 7 J J. Marsh. ^ Tomkins v. Beers, 2 Hoot (Conn.) 
 
 (Ivy.) 223. S. P. Cinnamond u. Green- 498; Cline v. Little, 5 Blackf. (Ind.) 
 
 lee, 10 Mo. 578. 486 ; Black v Marvin, 2 Pa. 138 ; 
 
 ^ Kapp V. Barthan, 1 E. D Smith Scott v. Wakins, 2 Sm. & M. (Miss.) 
 
 (N. r.)622. See also Meason I'. Kane, 255; Wells o. Pack, 23 Pa. St. 155. 
 
 63 Pa. St. 335. To the contrary, Lefferts v. De Mott, 
 
 ^Street!;. Meadows, 11 Ired.(N C.) 21 Wend. (N. Y.) 136; Wilson v. 
 
 L. 130. Smith, 5 Yerg. (Tenn.) 379. 
 
 * Cochran v. Cunningham, 16 Ala. " Wright v. Boynton, 37 N. H. 9 ; 
 
 448 ; Myers u. Gilbert, 18 Ala. 467 ; Latham v. Kenniston, 13 N. H. 203 ; 
 
 Bill V. Porter, 9 Conn. 23; Hooker i: Taylor v. Henderson, 17 S. & R. (Pa.) 
 
 Johnson, 8 Pla. 453 ; Hurd v. Brown, 453 ; Little v. Clarke, 36 Pa. St. 114. 
 
 25 111. 616 ; Randolph u. Govan, 14 ' Dixon v. Hood, 7 Mo. 414 ; Mell- 
 
 Sm. & M. (Miss.) 0; Ransom y. Keyes, vaine v. Franklin, 2 La. Ann. 622; 
 
 9 Cow. (N. Y. ) 128 ; Porter r. Wilson, Ellis v. Lauve, 4 Id. 246 ; Lewis v. 
 
 13 Pa. St. 641. Contra, sec Weston Post, 1 Ala. 65; Barney v. Earle, 20 
 
 V. Hunt, 19 Mo. 505 ; Cmnmins v. Cof- Ala. 405 ; Garner v. Myrick, 30 Miss. 
 
 jBn, 7 Ired. (X. C.) L. 19G. 448; Phillips v. Henry, 2 Head 
 
 (Tenn.) 1-33. 
 
§ 70.] PARTIES AND PERSONS INTERESTED. 107 
 
 action against the partner sued; ^ and that he was competent 
 for his co-partner, when required to testify against his inter- 
 est, to matters witliin the scope of the issue ;^ or where his 
 interest was equally balanced between the parties to the 
 suit.^ 
 
 (3) Dormant Partner. In Pennsylvania it was held that 
 a dormant partner, though not a party to a suit, cannot he 
 a witness for the partnership.'' But in an early New York 
 case it was decided that if a dormant partner releases his 
 interest to his co-partner, he may be a competent witness for 
 him.5 
 
 (4) Effect of Judgment hy Default, Discontinuance, et(\ 
 As to the competency of one sued as a partner and defaulted, 
 the cases are not harmonious, manj- of them holding that a 
 witness so situated is still disqualified by interest from being 
 a witness, as against his co-defendants,^ even to prove the 
 partnership ; '' or, in favor of his co-defendant, to prove that 
 the latter was not a partner ; ^ while others, of equal respect- 
 ability, take the contrary view, admitting a witness so 
 situated to testify in favor of his co-partner ; ^ or against him 
 and in favor of the plaintiff.^" Thus a defaulted partner was 
 allowed to prove that the bill sued on was made by him in 
 the name of two members of the firm, and indorsed by a third, 
 to raise money for the benefit of the firm, and that the money 
 so raised was so used and applied. ^^ 
 
 (5) Assignment of Interest. In an early New York case 
 it was decided that one partner, who had sold his interest in 
 the firm to a co-partner, and had been released by the other 
 
 1 Crook V. Taylor, 12 111. 353 ; 359 ; Pairchild v. Armsbaugh, 22 Cal. 
 Washing v. Wright, 8 Ired. (N. C.) 572. 
 
 L. 1. 8 Williams v. Soutter, 7 Iowa, 435. 
 
 2 Anderson v. Snow, 8 Ala. 504 ; Contra, Aicardi v. Strang, 88 Ala. 326 ; 
 Robertson v. Mills, 2 Har. & G. (Md.) Gooden v. Morrow, 8 Ala. 480; Smith 
 98. And see Cutter v. Fanning, 2 v. Knight, 71 111. 148 ; Thomas v. 
 Iowa, 580. Mohler, 25 Md. 36; Long v. Story, 13 
 
 3 Black V. Campbell, 6 W. Va. 51. Mo. 4. 
 
 4 Wood u. Connell, 2 Whart. (Pa.) » Sharp v. Morrow, 6 T. B. Mon. 
 542. (Ky.) 300; Butcher v. Porman, 6 Hill 
 
 6 Clarkson v. Carter, 3 Cow. (N. Y.) (N. Y.) 583. 
 
 84. " Robinson D. McFaul, 19 Mo. 549. 
 
 ^ Nightingale v. Seannel, 6 Cal. Contra, Glasscock v. McRae, 6 La. 
 
 506; Cody v. Cody, 31 Ga. 619; Rich Ann. 284. 
 
 v. Husson, 4 Sandf. (N. Y.) 115. " Bacon u.Hutchings, 5 Bush (Ky.) 
 
 '• Alexander i: Crosthwaite, 44 111. 595. 
 
108 compbteinXY. [chap. vi. 
 
 members of the firm, was a competent witness for the plaintiff 
 in a suit to recover a debt due the firm before the witness 
 retired.^ 
 
 But the Supreme Court of Louisiana said that the testimony 
 of a witness so situated must always be received with grave 
 suspicions.^ And the more prevalent and sounder doctrine 
 was, that a partner can never be so far divested of his interest 
 in the partnership, by any act of himself and co-partners, as 
 to be a competent witness in a matter relating to the partner- 
 ship while he was a member.^ 
 
 (6) After Dissolution. As a general rule, the dissolution 
 of the 2)artnership did not remove the common-law incompe- 
 tency of the several partners to testify as to transactions of 
 the firm prior to dissolution, e.g. to prove that the firm was 
 not dissolved at a particular time ; * or even as to matters 
 occurring since the dissolution, where the testimony of the 
 witness would tend to increase the liability of a former part- 
 ner, either to creditors or for contribution.^ 
 
 In an action against the administrator of a deceased partner, 
 to recover a partnership debt, the surviving partner was held 
 a competent witness.^ In such an action the surviving part- 
 ner may prove the partnership.'' But where the surviving 
 partner sues, as such, the widow of the deceased partner 
 cannot testify for him, her interest being to increase the fund 
 ill which she is entitled to a distributive share.^ 
 
 § 71. Part-Owners. — At common law, one joint owner of 
 personal property was, from interest, incompetent to testify 
 for the other where the title to such property was in issue ; ^ 
 
 1 Hosack V. Eogers, 25 Wend. (N. settled the debt by giving his notes to 
 Y.) 313. the two partners separately, each for 
 
 2 McLaughlin v. Sauvc, 13 La. Ann. a part of the debt. In an action on 
 99, one of the notes against the maker, it 
 
 8 Collins V. Flowers, 2 Miss. 26 ; was held that tlte other partner was a 
 Cravens v. Dewey, 13 Cal. 40 ; Dough- competent witness for the plaintiff, 
 erty v. Smith, 4 Mete. (Ky.) 279 ; See also "Whitehead v. Bank of Pitts- 
 Church V. Hampton, 6 Watts & S, burgh, 2 Watts & S. (Pa.) 172 , White 
 (Pa.) 514. V. Tudor, 24 Tex. 639. 
 
 1 Crymes v. White. 37 Ala. 549 ; <'' Brewster v. Sterrett, 32 Pa. St. 
 
 s. c, Ala. Sel. Cas. 473. 115 ; Collier v. Leach, 29 Id. 404. S. 
 
 5 Merrit v. Pollys, 16 B. Mon. (Ky.) P. Wright v. Punck, 94 Pa. St. 26. 
 
 355. See also White v Jones, 14 La. ' Grant v. Shutter, 1 Wend. (N. Y.) 
 
 Ann. 681 ; Hale v. Wetmore, 4 Ohio 148. 
 
 St. 600. 8. Allan v. Blanchard, 9 Cow. (N. Y.) 
 
 In Morse v. Green (13 N. H. 32) a 631. 
 
 debtor of the firm at its dissolution « Caldwell v. Cole, 13 Me. 120. 
 
§ 72.] PAETIES AND PERSONS INTERESTED. 109 
 
 or against the other, to prove tlie fact of joint ownership and 
 consequent joint liability.^ But tliis rule had some seem- 
 ing exceptions : thus in an action on a marine policy, one of 
 the part-owners of the vessel, not interested in the insurance, 
 was admitted to prove the loss and other facts.^ So, also, 
 a part-owner of a cargo, standing by and permitting another, 
 who owned the residue, to sell the same, agreeing to look to 
 such other for payment, and subsequently being paid for the 
 same, was held competent to prove the contract of sale.^ 
 
 § 72. Personal Representatives. — (1) In, Greneral. It was 
 well settled at common law, in some States, that the testimony 
 of an executor, administrator, or guardian was inadmissible 
 in an action against or in favor of the estate he represented ; 
 his being a party, and liable eventually to costs, having 
 always been deemed a sufficient objection.* But the action 
 being between third parties, he was generally admitted for 
 many purposes, such as to protect the title of one who had 
 purchased or hired a chattel from him in his representative 
 capacity ; ^ or to whom he had paid over a jDromissory note 
 payable to the testator ; ^ or to support the validity of a claim 
 against the estate which he had voluntarily paid, in a contest 
 between the claimant and another creditor ; '^ or to prove that 
 a conveyance made hj the intestate, absolute on its face, was 
 only intended to create a trust ; ^ or, the dispute being be- 
 tween a guardian and his ward, to show when, and how much 
 money the witness paid over to the guardian.^ 
 
 1 Aston V. Jemison, 17 Ala. 61 (a Darlington's Appropriation, 13 Pa. St. 
 statutory action to charge the defend- 430. 
 
 ant as joint owner, with the witness, * Sears v. Dillingham, 12 Mass. 358; 
 
 of a steamboat). In another case the Fox v. Whitney, 16 Id. 118 ; Fenwick 
 
 witness was not allowed to testify for «. Forrest, 6 Har. & J. (Md.) 415; 
 
 the other joint owner of the steam- Vansant n. Boileau, 1 Binn. (Pa.) 444; 
 
 boat. The Farmer v. McCraw, 31 Beard v. Cowman, 3 Har. &, M. (Md.) 
 
 Ala. 659. See also Marquand v. 152; Mclntyre r. Middleton, 1 Sni. 
 
 Webb, 16 Johns. (N. Y.)89; Lufkin & M. (Miss.) Ch. 91; Bellamy v. 
 
 V. Patterson, 38 Me. 282. The con- Cains, 3 Eich. (S. C.) 354. But see 
 
 trary doctrine is held as to actions ex Parker ;;. Moore, 2 La. Ann. 1017. 
 
 delicto, in Lee v. Murray, 12 Mo. 280. 5 Walden v. Smith, 29 Ala. 417. 
 
 2 Ruanw. Gardner, lWash.(U.S.)145. " Lock v. Noyes, 9 N. H. 430. 
 
 ' Outwater v. Dodge, 6 Wend. (N. ' Christman <,. Siegfried, 5 Watts. 
 
 Y.) 397. S. P. The Osceola, 01c. & S. (Pa.) 400. 
 
 Adm. 450 ; West o. The Berlin, 3 » Miller v. Thatcher, 9 Tex. 482. 
 
 Iowa, 532. See also Macy i-. DeWolf, 9 Clark v. Burnsidc, 15 111. 62 ; 
 
 " Woodb. & M. (U. S.) 193; Clement Hooper ;;. Royster. 1 Munf. (Va.) 119; 
 
 1-. Durgin, 5 Me. 9. As to the com- Young v. Warne, 2 Rob. (Va.) 420. 
 
 potency of tenants in common, see But see Raymond t. Simonson, 4 
 
 Rogers v. Mabe, 4 Dev. (N. C.) 180 ; Blackf. (Ind.) 77. 
 
110 COMPETENCY. [CHAP. VI. 
 
 Again, an administrator was admitted to prove the exist- 
 ence, loss, and contents of a bond for title, given by his intes- 
 tate in his lifetime, though he had executed a deed, with 
 warranty, to the purchaser, in accordance with the bond.^ 
 And a conveyance by the representative himself, in the 
 absence of fraud or warranty, did not render him incompe- 
 tent to testify in a case where the title to the land came in 
 question .2 
 
 (2) Competency of Executor to sustain the Will. In a com- 
 paratively early case it was held that an executor, having no 
 other interest than his fiduciary character imparts to him, is 
 a competent witness to prove the will,^ his remuneration 
 for his services and exjpenses not depending upon the estab- 
 lishment of the will.* In several cases he was held compe- 
 tent to sustain the will, although he was the principal lega- 
 tee and devisee ; ^ but the weight of authority was decidedly 
 the other way.'^ Thus it was held that an executor could 
 not prove the testator's sanity ; '' or the circumstances under 
 which the will was found.^ Having paid a legacy, his inter- 
 est disqualified him on an issue of devisavit vel non? In 
 another case the executor was not allowed to prove the will, 
 though he had deposited money to pay the costs, because, 
 the will being proved, he would be entitled to have his 
 deposit back again. ^^ A resignation or renunciation of the 
 trust, however, rendered the person named in the will, as 
 executor, competent to prove it.^^ 
 
 ' Moore v. Maxwell, 18 Ark. 469. ' Hayden v. Loomis, 2 Root (Conn.) 
 
 2 Burroughs v. Thorne, 2 South (N. 350. 
 
 J.) 777; Krause o. Reigel, 2 Whart. ' Sutton i-. Sutton, ,'!«pra; but in this 
 
 (Pa.) 385. Or even if with warranty, case the executor was largely inter- 
 
 the witness being first released, ested in a codicil. 
 
 Moody r. Pulmer, 3 Grant (Pa.) Cas. ^i Hinkle v. Eichleberger, 2 Pa. St. 
 
 17. See also Kifer v. Brenneman, 1 483; Barbee v. Mason, 5 Coldw. 
 
 Pa. St. 452 ; Kinzer f. Mitchell, 8 Pa. (Tenn.) 108. Other cases hold him 
 
 St. 64. incompetent, generally, on such an 
 
 ^ M'Danlel's will, 2 J. J. Marsh, issue. Vinyard v. Brown, 4 McCord 
 
 (Ky.)331. (S. C.) 24. But see Arnett k. "Weeks, 
 
 * Comstock V. Hadlyme, 8 Conn. 8 Humph. (Tenn.) 547; or in a suit 
 
 254. S. P. Coalter v. Bryan, 1 Gratt. to establish a, nuncupative will. 
 
 (Va.) 18; Lecky v. Cunningham, 56 Watts v. Holland, 56 Tex. 54. 
 
 Pa. St. 370. " Adams v. Sandige, 29 Ga. 563. 
 
 5 KcUey v. Miller, 39 Miss. 17 ; Mil- " Blakey v. Blakey, 33 Ala. 611 ; 
 
 lay V. Wiley, 46 Me. 230; McKeen v. Burritt v. Silliman, 13 N. Y. 93; s. c, 
 
 Prost, Id. 239. 10 Barb. 198. Compare McDonough 
 
 "Sutton V. Sutton, 5 Harr. (Del.) v. Loughlin, 29 Barb. (N. Y.) 238. 
 
 459; McDaniel's will, supra; Com- And see Subdivision (6), infra, p. 
 
 stock V. Hadlyme, supra. 112. 
 
§ 72.] PAUTIES AND PERSONS INTERESTED. Ill 
 
 (3) Addons in Behalf of the Estate. In New Hampshire, 
 an administrator having no interest was held a competent 
 witness in a suit brought by him on a contract, in the name 
 of the party thereto, and for the benefit of the estate ; ^ but 
 in Texas the contrary wiis held even where the witness 
 had filed a release of all claims against the estate for com- 
 missions.^ In New York the witness was admitted in an 
 action brought by him for damages for causing the death of 
 his intestate ; ^ and in Pennsylvania the administrator plain- 
 tiff was permitted to prove that he kept certain books of the 
 intestate as his clerk.'' So, also, in Iowa, he was permitted 
 to testify in an action to recover possession of property 
 belonging to the intestate.^ 
 
 (4) Actions a§ainst the Representative, as such, or individ- 
 ually In a suit against himself, the testimony of the per- 
 sonal represeiitative of a deceased person was generally 
 excluded.^ Thus he was not permitted to prove that at a 
 given time he had funds in his hands sufficient to pay all the 
 claims of creditors, for the purpose of enabling the distrib- 
 utees of the estate to testify, without a release from them ; '' 
 and he was also rejected on the trial of a bill in equity by the 
 widow, for dower, against the heirs and executors.^ So, also, 
 he was not allowed to prove failure of consideration of a 
 draft drawn by his intestate ; ^ or to testify in a suit on a bill 
 or note indorsed by himself as executor, for in such case he 
 is personally bound.^" Nor could he testify in favor of his 
 co-defendants, the other executors,!^ or to discharge the land 
 of a devisee, who was a co-defendant, from the decedent's 
 debts. ■'^ And it has been held that being sued as executor, he 
 was not a competent witness for the estate, though he was a 
 bankrupt, and had obtained his discharge as such.^^ 
 
 1 Barker o. Barker, 16 N. H. 333. ' Hall u. Alexander, 9 Ala. 219. 
 The commission allowed him not con- " Price v. Notrebe, 17 Ark. 45. 
 stituting a disqualifying interest. ^ Shannon r. Fuller, 20 Ga. 566. S.P. 
 Smith V. Lambeth, 15 La. Ann. 566. Thom v. Wilson, 24 Ind. 323. 
 
 2 Dial V. Grain, 10 Tex. 444. Gom- i' Leverich i. Bossier, 12 La. Ann. 
 pare Myers v. Walker, 31 111. 353. 583. 
 
 3 Sandford t.. Eighth Ave. 11. E. " Fort v. Gooding, 9 Barb. (N. Y.) 
 Co., 7 Bosw. (N. Y.) 122. 371. 
 
 « Craigu. Patton, 3S. &R. (Pa.)300. i^ Hunt v. Moore, 2 Pa. St. 105. 
 
 '' Bradley I'. Kavanagh, 12 Iowa, 273. Compare Lupton !. Lupton, 2 Johns. 
 
 6 Grimes v. Booth, 19 Ark. 224; (N. Y.) Ch. 614. 
 
 Lampton c. Lanipton, T. B. Mon. i» Osborn t. Black, Spears (S. C.) 
 
 (Ky.) 616. Eq. 431. 
 
112 COMPETENCY. [CHAP. VI. 
 
 On the other hand, the representative has been admitted as 
 a witness to testify as to facts occurring after tlie death of 
 the deceased, in a proceeding in a court of probate, to establish 
 a claim against the estate ; ^ and to prove that a debt alleged 
 to be owing by the estate had been paid by the deceased, he 
 having no personal interest in the case.^ And he was held 
 competent in an action against himself for embezzling, and 
 failing to inventory notes given to him by the deceased.^ 
 
 (5) On the Accounting. In the absence of an enabling 
 statute, personal representatives, being prima facie liable for 
 the entire personalty of the decedent, if they are in fact liable 
 for any considerable portion thereof, are incompetent to 
 testify in favor of their own interests.* But they may show 
 their acts, and the state of tlieir accounts since the adminis- 
 tration, not however for the purpose of proving any debt due 
 to themselves from the intestate.^ In Maryland it is held 
 that in a proceeding to discover assets and to compel an 
 executor to account for such as had come into his hands, he 
 is competent to show that he had advanced money to the 
 testator;^ and being called by an exceptant to his account 
 to prove its incorrectness, he may go on and testify in his 
 own behalf that it is correct.'^ 
 
 (6) Former Representative. The authorities, even at 
 common law, are quite harmonious in conceding the compe- 
 tency of an executor or administrator who has resigned,^ or 
 been removed or superseded,^ to testify in favor of his suc- 
 cessor in the trust, and this, even though proceedings are 
 pending to reverse the action of the court removing him.^" 
 So is he competent in such a case for his former co-executor.^^ 
 He is no longer a party, nor liable for the costs.^^ In one case 
 
 1 Terhune v. Henry, 13 Iowa, 99. ' Crowder v. Shackelford, 35 Miss. 
 
 ' De Kerlegand u. Robin, 1 La. 321. 
 
 Ann. 227. * McLaughlin v. Kelms, 9 Ala. 925. 
 
 3 Stewart v. Glenn, 58 Mo. 481. " Farrow v. Bragg, 30 Ala. 261 ; 
 
 And see also Capehart v. Huey, 1 Hill Walker v. Mock, 39 Ala. 5G8 ; An- 
 
 (S. C.) Ch. 405. derson v. Irvine, 7 B. Mon. (Ky.) 209. 
 
 * Willcox V. Smith, 26 Barb. (N. Wiggin v. Plumer, 31 N. H. 251 ; 
 
 Y.) 316; Ela ^■. Edward, 97 Mass. Burd u. M'Gregor, 2 Grant (Pa.) Cas. 
 
 318. 353. 
 
 " Pinch V. Creech, 55 Ga. 124. " Saunders v. Duval, 19 Tex. 467. 
 
 e Cooke v. Cooke, 29 Md. 538. S. P. " Burkholder v. Lapp, 31 Pa. St. 
 
 Bolton V. Smead, 38 Barb. (N. Y.) 322. 
 
 141. 1^ Wiggin V. Plumer, supra. 
 
§ 73.] PAETIES AND PEKSONS INTERESTED. 113 
 
 it is lield that he is competent to testify against his successor 
 in the trust. ^ 
 
 § 73. Principal or Agent. - — (1) Principal. The principal 
 was not generally admitted as a witness in an action involv- 
 ing the acts of his agent.^ Thus he was not permitted to 
 support his own title to property sought to be replevied from 
 his agent,^ or to testify in an action by a county treasurer, 
 against the agent, for non-payment of the principal's taxes,* 
 or in the agent's suit against an attorney, for the recovery of 
 a debt due the principal, which the agent had placed in the 
 attorney's hands for collection, as the record, would be evi- 
 dence for the principal, of the amount recovered, in a suit 
 by him against the agent.^ 
 
 But where an agent was sued for money had and received 
 on account of the principal, the theory of the suit being that 
 there was nothing due the principal, the latter was held 
 a competent witness;'' and in a suit against the master of a 
 vessel for negligently colliding with plaintiff's vessel, the 
 owner of the vessel commanded by the defendant was ad- 
 mitted to testify.'' So, also, after his interest was released, 
 a principal was allowed to prove what his object was in 
 sending an agent from one place to another.* 
 
 (2) Agent. The most important exception to the common- 
 law rule excluding, as witnesses, parties interested in the 
 event, was the case of an agent. He was constantly per- 
 mitted to testify even though he was apparently interested.^ 
 He could prove the fact of his own agency,^" or its nature, 
 
 ' McLaughlin v. Nelms, 9 Ala. ^25. lard, 13 Id. 379 ; Kice v. Gove, 22 Pick. 
 
 2 Steward u. Richardson, 2 Yeates (Mass.) 158; "Ward v. Griffin, 3 Ired. 
 (Pa.) 89. (N. C.) Eq. 150 ; Saleo v. Cay, 12 Rich. 
 
 3 Russell V. McKenzie, 13 Md. 560; (S. C.) L. 558. 
 
 Sherman v. Bruce, 37 111. 39. " Gould v. Norfolk Lead Co., 9 Cush. 
 
 * Hayes i . Grier, 4 Binn. (Pa.) 81. (Mass.) 338 ; Napier v. Barry, 24 Ala. 
 
 6 Wallace v. Peck, 12 Ala. 768. 511 ; Manaway v. State, 44 Ala. 375 ; 
 
 Seidell v. Peckworth, 10 S. & R. Groom v. Noll, Fla. 52 ; Dean v. 
 
 (Pa.) 442. Young, 13 Sm. & M. (Miss.) 118; Kent 
 
 ' Case L. Reeve, 14 Johns. (N. Y.) v. Tyson, 20 N. H. 121; Downer v. 
 
 79. Button, 26 N. H. 338 ; Miller v. Hay- 
 
 8 Kirksey v. Bates, 1 Ala. 303. man, 1 Yeates (Pa.) 23 ; McGunnaglo 
 
 9 Bean w. Pearsall, 12 Ala. 592 ; Col- v. Thornton, 10 S. & R. (Pa.) 251; 
 linsu.Lester, 16 Ga. 410; States. Hoi- Piercy v. Hedrick, 2 W. Va. 458. 
 loway, SBlaokf. (Ind.)45; Phillips r. S. P. Cadwell ;;. Meek, 17 111. 220; 
 Bridge, 11 Mass. 242 ; Fisher v. AVil- Collins v. Smith, 18 111. 160. 
 
114 COMPETENCY. [CHAP. VI. 
 
 and also his acts as agent.^ His admission to testify arose 
 from public conveniency and necessity; for without his testi- 
 mony, matters of daily and ordinary occurrence could not be 
 proved, and the freedom of trade and commercial intercourse 
 would be inconveniently restrained.^ Ho was usually admit- 
 ted on general principles, and for all purposes,^ to prove any 
 fact in the case.* Thus, where a writing was executed by an 
 agent, he was deemed competent to prove it, even though a 
 subscribing witness were within reach of process ; ^ so he 
 could prove his own declarations made at the time the con- 
 tract v/as made, in order to uphold the contract as against 
 the charge cf fraud." Again, testifying against his principal, 
 he could deny the relation of agency.^ 
 
 If the agency was created by a v.'riting which was lost or 
 destroyed, the agent could prove its contents." So, also, he 
 could testify that business done in his own name was the 
 business of his principal;'' and he was a competent witness in 
 a suit commenced by his directions, where ho had not assumed 
 any personal responsibility for the costs of the prosecution.^" 
 He could prove the loss of an instrument, parol or under seal, 
 though given to himself ;^^ or explain a receipt given by him, 
 thougli the effect of his evidence was to limit its terms,^^ 
 or prove that he had paid over money left with him by his 
 principal for that purpose. ^^ Having negotiated a trade for 
 
 1 Pendall ;•. Eench, 4 McLean (TJ. * Connolly v. Childs, 2 A. K. Marsh. 
 S.) 259; Chapin v. Siger, Id. 078; (Ky.) 242. 
 
 Gaylc V. Bishop, 14 Ala. 552 ; Scott v. ^ Falls r. Gaither, Port. (Ala.) 005. 
 
 Jester, 13 Ark. 437 ; Tomlinsonu. Spen- ^ Ilan-ison v. Tulano, 3 Ala. 534. 
 
 cer, 5 Cal. 291 ; V.'cavcr v. Bracken, 18 ' McParland v. Lowry, 40 Iowa, 407. 
 
 B. Mon. (Ky.) 723; Phelps v. Hodge, 8 Jjirkpatrick v. Cisna, 3 Bibb (Ky.) 
 
 La. Ann. 525 ; Barrier v. Peychand, 244. But see Kicholson v. Mifflin, 2 
 
 14 Id. 070; Crookcr v. Appleton, 25 Dall. (TJ. S.) 240; Kennebeck Pur- 
 
 Me. 131 ; Perkins v. Jordan, 35 Me. chase v. Call, 1 Mass. 483. See also 
 
 23 ; Caldwell c. Vf entworth, 10 N. H. Caldwell i-. Wentworth, 10 N. 11. 318. 
 
 318 ; Covington v. Bussey, 4 McCord, ^ Ames v. St. Paul &c. R. li. Co., 12 
 
 (S. C.) 412; Black c. Goodman, 1 Minn. 413. 
 
 Bailey (S. C.) 201 ; Harvey w. Sweasy, i'' Morris r. Wadsworth, 17 Wend. 
 
 4 Humph. (Tenn.) 449. (N. Y.) 103 ; Kerr v. Cotton, 23 Tex. 
 
 2 1 Greenl. Ev. (14 ed.) §410; Wain- 411. 
 
 wright f. Straw, 15 Vt. 215 ; Stringfel- " Grayson i;. Bannon, 8 Watts (Pa.) 
 
 low f. Marriott, 1 Ala. 573 ; Mills v. 524. 
 
 Board, 19 Cal. 158 ; Stothard v. AuU, 12 Giddings v. Munson, 4 Vt. 308. 
 7 Mo. 318 ; Doe r. Ilimelick, 4 Blackf. " The Governor v. Gee, 19 Ala. 199. 
 
 !(Ind.) 494. But see Hunyon v. Farm- But see Eastman v. Hodges, 1 D. Chip, 
 
 crs &.C. Bank, 3 Gr. (N. J.) Eq. 480. (Vt.) 101; Montgomery i-. Evans, 8 
 
 = KichoUs V. Guibor, 20 III. 285. Ga. 178. 
 
§ 7 3. J PARTIES AND PEESONS INTERESTED. 115 
 
 Lis principal, he could testify as to his understanding of the 
 contract, for that is the understanding of the principal ; but 
 not as to the understanding of the other party, for that is 
 opinion, and a fact for the jury.^ And his competencj'^ to 
 testify as to contracts made by him as agent, applied to 
 written equally with oral contracts.^ 
 
 On the other hand, where the agent exceeded his authority, 
 and in so doing committed a tort, he was deemed incompe- 
 tent to testify for the principal when the latter was sued for 
 such tort ; ^ and even where the action was on contract, an 
 agent who had become directly interested in the transaction 
 in which he acted as agent was excluded as a witness;* but 
 in such cases, z, prima facie case of the agent's liability over 
 to the principal ought first to be made out in support of his 
 incompetency as a witness, and then the principal liad the 
 right to examine him on his voir dire, in order that he might 
 explain his situation.^ So, also, where the right of action 
 turned upon the question whether an agent had been guilty 
 of negligence or other breach of duty, the agent was incom- 
 petent to testify for the defendant.^ 
 
 In applying these principles it was held that where an 
 agent lost his principal's money at gaming, and the latter 
 sued the winner to recover it, tlie agent was not a competent 
 witness without a release.^ So, also, an agent who signed an 
 attachment,^ or a bill of sale,^ or a replevin bond,^° in the name 
 of his principal, was lield incompetent to testify in favor of 
 his principal, on the ground of interest from liability over to 
 the principal, unless released by him.^^ 
 
 1 Linsley v. Lovely, 26 Vt. 123. (S. C.) 342 ; Ware v. Bennett, 18 Tex. 
 
 2 Lytle V. Bond, 40 Vt. 618. 794. 
 
 i>RailroadCo.i).Kidd, 7 Dana(Ky.) 'Allen v. Lacy, Dud. (Ga.) 81; 
 
 245. Compare Crooker u. Appleton, Jones c. McRay, 6 Jones (N. C.) L. 
 
 25 Me. 131. 192. 
 
 < Steam Nav. Co. v. Dandridge, 8 « Lankford v. Keith, 21 Ala. 342. 
 
 Gill & J. (Md.) 248 ; Peckham v. Lyon, » Knapp v. Sacket, 1 Root (Conn.) 
 
 4 McLean (U. S.) 45. S. P. Christy v. 501. 
 
 Smith, 23 Vt. 663. i» M^ard v. Bradwell, 1 New Mex. 75. 
 
 ^ Ashe V. Murchison, 8 Ired. (N. C.) ^i For further illustration of the ap- 
 
 L. 215. plication of the foregoing principles 
 
 " McClure v. Whitesides, 2 Ind. 573 ; to the various classes of agents, the 
 
 Pinn V. Vallejo &c., 7 Cal. 253; Mid- reader is referred to the cases collected 
 
 dlekaufE v. Smith, 1 Md. 329 ; Struth- below : — 
 
 ers V. Kendall, 41 Pa. St. 214 ; Gas Agent signing hill or note. Childress 
 
 Light Co. V. City Council, 9 Rich. v. Miller, 4 Ala. 447 ; Barney v. Earle, 
 
116 
 
 COMPETENCY. 
 
 [chap. VI. 
 
 § 74. Principal or Surety .^ — (1) Principal. It was Well 
 settled at common law that the principal obligor in a bond 
 was not a competent witness for the surety, in an action on 
 the bond,^ unless something appeajred constituting the case 
 an exception to the general rule making the principal liable 
 
 20 Ala. 405; Thurston v. Mauro, 1 
 Greene (Iowa) 231 ; Britton v. An- 
 drews, 1 La. Ann. 398 ; Garland v. 
 Scott, 15 Id. 143 ; John v. McConnell, 
 19 Mo. 88 ; Shiras u. Morris, 8 Cow. 
 (N. Y.) 60; McKee v. Myers, Add. 
 (Pa.) 31. 
 
 Agent to purchase. Bush v. Magee, 
 4 Ala. 710 ; Ortez v. Jewett, 23 Ala. 
 662; Moore v. Lea, 32 Ala. 375; 
 McLeod V. Frost, 7 La. Ann. 50; 
 Townley „. Wooley, Coxe (N. J.) 
 377; Ayres v. Van Lien, 2 South. 
 (N. J.) 765; Burlingham v. Deyer, 2 
 Johns. (N. Y.) 189; Sewall v. Fitch, 
 8 Cow. (N. Y.) 215; Sage v. Sherman, 
 25 Wend. (N. Y.) 426; Murray v. Gar- 
 rett, 3 Call (Va.) 373 ; Blair v. Owles, 
 
 I Munf. (Va.) 38. 
 
 Agent to sell. Griggs v. Woodruff, 
 14 Ala. 9 ; Shepard v. Palmer, 6 Conn. 
 95; Swearingen v. Fields, 1 Dana 
 (Ky.) 387; Earle v. Clark, 15 Me. 
 368 ; New York Slate Co. i: Osgood, 
 
 II Mass. 60; Towle u. Leavitt, 23 
 N. H. 360 ; Harwood v. Murphy, 4 
 Halst. (N. J.) 215 ; Hickling v. Pitch, 
 
 1 Miles (Pa.) 208; Scott v. Wells, 6 
 Watts & S. (Pa.) 357; Lipscomb „. 
 Kitrell, 11 Humph. (Tenn.) 256; Spen- 
 cer V. Barnum, 4 Vt. 298. See also 
 Bailey v. Ogden, 3 Johns. (N. Y.) 399. 
 
 Attorney in fact. Phelps v. Riley, 3 
 Conn. 266; Head v. Bogue, 22 111. 
 117. 
 
 Bank clerk. Young v. First Nat. 
 Bank, 51 111. 73; Union Bank ti. 
 Meeker, 4 La. Ann. 189; Strafford 
 Bank v. Cornell, 1 N. H. 193 ; United 
 States Bank v. Steams, 15 Wend. 
 (N. Y) 314; Hess v. State, 5 Ohio, 5. 
 See also Franklin Bank v. Freeman, 
 16 Pick. (Mass.) 537. 
 
 Brokers. Livingston v. Swannick, 
 
 2 Dall. (U. S.) 300; Shaw v. Davis, 5 
 Cal. 460; Rutherford v. Hennen, 13 
 La. Ann. 336 ; Mauran v. Lamh, 7 Cow. 
 (N. Y.) 174; Payne v. Trezevant, 2 
 Bay (S. C.) 23. 
 
 Collecting agent. Howe u. Wade, 4 
 McLean (U. S.) 319; Fuller v. Whee- 
 lock, 10 Pick. (Mass.) 135; Blackledge 
 ... Scales, 1 Murph. (N.C.) 179; Nixon 
 ii. Bagby, 7 Jones (N. C.) L. 4; Cozens 
 V. Pooser, 1 Spears (S. C.) 325. 
 
 Consignee or Factor. Bork v. Norton, 
 2 McLean (U. S.) 422; Brown w. Bab- 
 cock, 3 Mass. 29 ; Kirkland v. Carr, 
 35 Miss. 584 ; Jones v. Sinclair, 2 N. 
 H. 319 ; Price ;;. Powell, 3 N. Y. 322. 
 
 Contractors and sub-contractors. Cu- 
 sack V. Tomlinson, 1 E. D. Smith, 
 (N. Y.) 716; Dickinson College t'. 
 Church, 1 Watts & S. (Pa.) 462 ; Odd 
 Fellows' Hall v. Masser,24 Pa. St. 507. 
 
 Corporate agents. Galena &c. R. R. 
 Co. V. Welch, 24 111. 31 ; Draper v. 
 Worcester &c. R. R. Co., 11 Mete. 
 (Mass. ) 505 ; Nashville &c. R. R. Co. 
 V. Fugett, 3 Coldw. (Tenn.) 402. 
 
 Insurance agents. Ruan v. Gardner, 
 1 Wash. (U. S.) 145 ; Mutual &c. Ins. 
 Co. V. Deale, 18 Md. 26. 
 
 Masters of vessels, or the crew. The 
 Hope, 2 Gall. (U. S.) 48; Patten v. 
 Darling, 1 Cliff. (U. S.) 254 ; The Wil- 
 liam Harris, 1 Ware (U.S.) 367; Swett 
 V. Black, 1 Sprague (U. S.) 574; Fur- 
 niss f. The Magoun, Olc. Adm. 55 ; 
 The Hudson, Id. 396; The Osceola, Id. 
 450 ; The Medora, 1 Sprague (U. S.) 
 138; Newbold v. Wilkins, 1 Harr. 
 (Del.) 43 ; Descadillas v. Harris, 8 Me. 
 298 ; The General Worth v. Hopkins, 
 30 Miss. 703; Ward v. Whitney, 3 
 Sandf. (N. Y.) 399; Willard v. Carter, 
 5 Jones (N. C.) L. 395; Galloway r. 
 Morris, 3 Yeates (Pa.) 445; Mclndoe 
 t>.Lunt,l Browne (Pa.) 85; Schuylkill 
 Nav. Co. V. Harris, 5 Watts & S. (Pa.) 
 28 ; American Ins. Co. v. Insley, 7 Pa. 
 St. 223. 
 
 1 See also supra, §§ 54, 67. 
 
 2 Riddle v. Mors, 7 Cranch, 206 ; 
 Jones /.'. Raine, 4 Rand. (Va.) 386; 
 Hunter v. Gatewood, 5 T. B. Men. 
 (Ky.) 268 ; Kelly c. Lank, 7 B. Mon. 
 (Ky.) 220 ; Wing ,,. Andrews, 59 Me. 
 
§ 74.J PARTIES AND PERSONS INTERESTED. 117 
 
 for the costs incurrecl by the surety iu defending the suit.^ 
 Where the suit was against the surety alone, a release from 
 him was necessary to render the principal a competent wit- 
 ness.^ Thus, the principal obligor in a bond of indemnity 
 to the sheriff,^ or in a recognizance for stay of execution,* 
 was held incompetent as a witness in proceedings growing 
 out of the giving of the bond. He was not permitted to 
 testify in favor of the surety, even to prove the bond usuri- 
 ous;^ and suffering a default,*' or the fact that the proposed 
 witness had been discharged in bankruptcy,'' did not render 
 him competent. 
 
 But a release from the surety would render the principal 
 a good witness.^ And where the surety, when sued by 
 the obligee, sought relief from his bond, and asked that the 
 suit be enjoined, it was held that the principal obligor was 
 competent to prove a change in his relation to his obligee, 
 which would release the surety from liability. If the plain- 
 tiff had succeeded, the principal would not have been dis- 
 charged from his liability; and if he failed, he must have 
 borne his own costs.^ So, also, he could show fraud, or a re- 
 scission of the contract or obligation.^" And he was a compe- 
 tent witness in an action by one surety against a co-surety, 
 for contribution,^! or in favor of the plaintiff, in a suit against 
 the surety ouly,i2 e.g., to prove the execution by the defendant, 
 
 506 ; Garrett v. Ferguson, 9 Mo. 125 ; 3 Ohio St. 406 (a separate judgment 
 
 Hale V. Wetmore, 4 Ohio St. 600 ; Com- not having been rendered against the 
 
 monvvealth o. McKee, 2 Grant (Pa.) principal). Contra, Mix v. Marder, 79 
 
 Cas. 27 ; Vandiver v. Glaspy, 7 Rich. Ky. 131 ; Prevle Bank v. Russell, 1 
 
 (S. C.) 14. See also Cantey i'. Blair, Ohio St. 313; Simpson u. Bovard, 74 
 
 2 Rich. (S. C.) Eq. 46. Pa. St. 351. 
 
 1 Cleveland v. Covington, 3 Strobh. ' Cake v. Lewis, 8 Pa. St. 493. 
 (S.C.) 184; Marshall u. Franklin Bank, « Pogue v. Joyner, 7 Ark. 462; Hol- 
 25 Pa. St. 384 ; Hurst v. Word, 3 Head land v. Chambers, 22 Ga. 193 ; Field 
 (Tenn.) 564. v. Davidson, 9 B. Mon. (Ky.) 77. 
 
 2 Rackley v. Sanders, 1 Ga. 258 ; » Gass v. Stinson, 2 Sumn. (U. S.) 
 Richards v. Griffin, 5 Ala. 195 ; Garrett 453. S. P. Reid v. Watts, 4 J. J; Marsh. 
 V. HoUoway, 24 Ala. 376 ; Moffit u. (Ky.) 440 ; Kennedy v. Evans, 31 111. 
 Gaines. 1 Ired. (N. C.) L. 158; Miller 258; Armistead .-. Ward, 2 Pat. & H. 
 V. Stem, 12 Pa. St. 383, (Va.) 504. But see Cannon v. Jones, 
 
 3 Hodge V. Thompson, 9 Ala. 131. 4 Hawks (N. C.) 368. 
 
 * Morrison .;. Hartman, 14 Pa. St. i" Hazard v. Irwin, 18 Pick. (Mass.) 
 
 55. 95. 
 
 15 Jordanu.Trumbo,6Gill&J. (Md.) "Leavenworth v. Pope, 6 Pick. 
 
 103; Cantey v. Blair, 1 Rich. (S.C.) (Mass.) 419; Hunt v. Chambliss, 7 
 
 Eq. 41; Sm. & M. (Miss.) 532. 
 
 8 Crowellt). Western Reserve Bank, 12 Morse v. Greene, 13 N. H. 32. 
 
118 COMPETENCY. [CHAP. VI. 
 
 of the bond sued on, the plea of non est factum haying been 
 interposed. 1 
 
 (2) Surety. A surety who was directly interested in the 
 event of the suit could not be a witness ;2 but Avhere his 
 interest was remote and contingent;^ or where there were 
 several similar cases, and the witness, though interested in 
 some of them, was not in the one in which he was called as 
 a witness;* or, being one of two or more sureties he was not 
 made a party to the action on trial;® or where, in any event 
 he could not be called upon to satisfy the judgment in Avhole 
 or in part;® or where he was willing to testify against his 
 own interest,'^ the surety was usually permitted to testify. 
 So the surety on an appeal bond was held competent at the 
 trial on the appeal,^ especially on being released and another 
 surety substituted in his place ;^ and on an issue devisavit vel 
 non, the security to the administration which had been 
 granted pendente lite was held admissible as a witness to 
 support the will.^" Again, the interest of a surety on a re- 
 plevin bond was removed by a deposit for his use, made with 
 the clerk of the court, by the plaintiff, of an amount equal to 
 the penalty of the bond.^^ And, as a witness for the principal 
 in a covenant, the suretj-, also a defendant, could testify to 
 sustain the defence set up by the principal that he was to be 
 bound only on condition that another would execute the 
 covenant, which had not been done.-'^ So, also, one who, 
 without consideration, guaranteed a bond could be a witness 
 for the obligors to show a usurious consideration .^^ 
 
 1 Buckingham v. Clary, 4 Gill (Md.) ^ Molyneaux v. Collier, 13 Ga. 406. 
 
 223. » White v. Bailey, 10 Mich. 155. 
 
 2Reigart v. Hicks, 14 S. & R. (Pa.) » McCulloch v. Tyson, 2 Hawks. 
 
 1-34, So held of the surety of a delin- (N. C.) 336. S.P. Craighead v. State 
 
 quent cashier, in an action to recover Bank, 1 Meigs (Tenn.) 199; Ross w. 
 
 money improperly paid out by the Blair, Id. 525. 
 
 principal. State Bank v. Littlejohn, ^^ Martin v. Hough, 2 Hawks (N. C.) 
 
 2Dev. (N.C.)L.381. See also Colgin 368. 
 
 V. State Bank, 11 Ala. 222. " Cooper v. Bakeman, 33 Me. 376. 
 
 STownshend v. Townshend, 6 Md. i- Millettu.Parker,2Metc.(Ky.)608. 
 
 295. " Caldwell v. M'Cortney, 2 Gratt. 
 
 4 Kimball v. Thompson, 4 Cush. (Va.) 187. See also Fairfax v. Fair- 
 (Mass. ) 441. S. P. Covington &c. R. R. fax, 2 Cr. C. C. 25 ; Thompson v. Car- 
 Co. V. Ingles, 15 B. Mon. (Ky.) 637. berry. Id. 35 ; Craig u. Reintzell, Id. 
 
 5 Craig u. Calloway County Court, 128 ; Ferguson v. Cappeau, 6 Har. & 
 12 Mo. 94; GilUam v. Henneberry, 6 J. (Md.) 394. 
 
 Jones (N. C.) L. 223 ; Leech i;. Ken- For further cases illustrating the 
 
 nedy, 3 Strobh. (S. C.) 488. extent to which sureties upon the dif- 
 
 " Hill V. Hill, 32 Pa. St. 511. ferent kinds of bonds were deemed 
 
§75.] 
 
 PARTIES AND PEESONS INTEPvESTED. 
 
 119 
 
 § 75. Prosecutors, Informers, and Persons entitled to Re- 
 wards.' — Formerly it was held that the prosecutor, i.e., the 
 individual at whose instance the process of the criminal law 
 is set on foot against one accused of crime, was incompetent 
 to testify on the trial of the accused, for the reason that the 
 record of conviction would be evidence in favor of the wit- 
 ness in a subsequent civil action.^ Particularly, was he 
 excluded for this reason on trials for forgery and perjury. 
 But it became well settled long ago that the record in a 
 criminal prosecution cannot be used as evidence in a civil 
 action, either at law or in equity, except to prove the mere 
 fact of the adjudication, or a judicial confession of guilt by 
 the party indicted;^ so that this objection was no longer 
 listened to. Another objection to the witness was that in 
 case the prosecution was found frivolous or malicious, the 
 prosecutor would be liable to pay the costs, but this was also 
 overruled.^ So, also, the objection that a prosecuting witness 
 has contributed funds to carry on the prosecution was held 
 to go to his credibility only.* 
 
 competent, at common law, to testify 
 in favor of their principals, see the 
 references given below : — 
 
 Adviinistration bond. McCreelis v. 
 Hinkle, 17 Ala. 459 ; Henderson v. 
 Simmons, 33 Ala. 291 ; Bean v. Jen- 
 kins, 1 Har. & J. (Md.) 135 ; Owens v. 
 Collinson, 3 Gill & J. (Md.) 25; Mit- 
 chell V. Mitchell, 11 Id. 388 ; Same v. 
 Same, 1 Gill (Md.) 06 ; Blood v. Hay- 
 man, 13 Mete. (Mass.) 231 ; Kaywood 
 V. Barnett, 3 Dev. & B. (N. C.) L. 91 
 Eeeme u. Parthemere, 8 Pa. St. 460 
 Anderson!). Smoot, 2 Rich. (S. C.) Eq, 
 285. 
 
 Attachment bond. Atkins v. Guice, 
 21 Ark. 104 ; Pucker v. Pritchett, 3 
 Bush (Ky.) 089; Peters v. Moss, 1 
 Sm. & M. (Miss.) 331. 
 
 Bastardi) bond. Chapel v. White, 3 
 Cush. (Mass.) 537. 
 
 Bond for costs. Miller v. Henshaw, 
 4 Dana'(Ky.) 325 ; Black v. Grain, 10 
 Yerg. (Tenn.) 516. 
 
 Bond for title. Shelby v. Smith, 2 
 A. K. Marsh. (Ky.) 504. 
 
 Forthcoming bond. Bates v. The 
 Madison, 18 Mo. 99; Greene v. Tims, 
 16 Ala. 541. 
 
 Insolvency bond. Browning i). Cooper, 
 3 Harr. (N. J.) 196 ; Mann v. Drost, Id. 
 330. 
 
 lieplevin bond. Poe v. Dorrah, 20 
 Ala. 288 ; Cook v. Lyon, 10 Iowa, 433 ; 
 Johnson v. Whidden, 32 Me. 230 ; San- 
 derson u. Marks. 1 Harr. & G. (Md.) 
 252 ; Morton v. Beall, 2 Id. 130 ; Myers 
 ti. Clark, 3 AVatts & S. (Pa.) 535; Dan- 
 nels V. Pitch, 8 Pa. St. 495. 
 
 As to the competency of one co- 
 surety to testify for another, see Gov- 
 ernor of Virginia v. Evans, 1 Cr. C. C. 
 581 ; Jones i). Letcher, 13 B. Mon. 
 (Ky.) 303; Low v. Smart, 5 N. H. 353 ; 
 Keer v. Clark, 11 Humph. (Tenn.) 77. 
 
 Or against another, see Howe u. 
 Ware, 30 Ga. 278. 
 
 1 E. 0. Whiting, 1 Salk. 283 ; over- 
 ruled in R. V. Broughton, 2 Str. 1229. 
 See also R. v. Ellis, 2 Str. 1104; R. v. 
 Nunez, Id. 1042. 
 
 2 1 Greenl. Ev. (14 Ed.) § 537, and 
 cases cited ; State v. McGrew, 13 Rich. 
 (S. C.) 310. 
 
 ' State V. Blennerhassett, 1 Miss. 7 ; 
 Gilliam's case, 4 Leigh (Va.) 088. 
 
 * People f. Cunningham, 1 Den. 
 (N. Y.) 524. 
 
120 COJIPBTENCY. [chap. VI. 
 
 But a more serious objection to the competency of the 
 prosecutor or informer was, that the whole or part of the 
 penalty, in qui tarn actions, and prosecutions punishable by 
 penalty or fine, is generally given, by statute, to the prose- 
 cutor or informer, and this rendered him interested in the 
 event of the prosecution ; so also the owner of stolen property 
 would be entitled in many cases, on conviction of the thief, 
 to a restoration of the property, thus rendering him interested ; 
 and the same principal applied the witnesses for the govern- 
 ment, who, in the event of conviction, would be entitled to 
 receive a reward from the government. On grounds of 
 public policy and convenience, and to prevent a failure of 
 justice, it was found necessary to except these witnesses from 
 the operation of the general rule of exclusion by reason of 
 interest.^ Thus the owner of property injured was admitted 
 in a prosecution for malicious injury;^ and in a prosecution 
 for trespass after warning, under a statute, the owner of the 
 locus in quo was admitted, notwithstanding the statute gave 
 him the fine imposed in case of conviction.^ So an informer 
 was held competent, though he was to receive part of the 
 penalty.* In one case a release of his interest was required 
 before the informer was allowed to testify.^ 
 
 § 76. Servants. — Much of what has already been said in 
 treating of the competency of agents^ is equally applicable 
 here, and all that remains to be done is to examine a few 
 cases not before cited. Servants were deemed competent 
 
 1 Murphy v. State, 28 Miss. 637, * United States v. Patterson, S 
 where it is said these witnesses are to McLean (XJ. S.) 53, 299; State v. 
 be admitted to testify in three classes Bennett, 1 Eoot (Conn.) 249; United 
 of cases, to wit: (1) When the statute States v. Wilson, 1 Baldw. (U. S.) 78; 
 cannot be enforced without the aid of City Council v. Sibley, 2 Brey. (S. C.) 
 such a witness. (2) In cases of neces- 34. 
 
 sity, when no other evidence can rea- '" City Council v. Haywood, 2 Nott 
 
 sonably be expected. (8) Where, & M. (S. C.) 308. And see Com. v. 
 
 though a person is to receive a reward Ohio &c. K. E. Co., 1 Grant (Pa.) Cas. 
 
 on the convictionof an offender,it can 329; Bradley v. Couch, 1 Root (Conn.) 
 
 be inferred from the language, or the 361 ; Com. v. Hargesheimer, 1 Ashm. 
 
 professed objects, of the statute which (Pa.) 413 ; Bill v. Scott, Kirby (Conn.) 
 
 gives the penalty to the informer, that 62; People y. Bill, 10 Johns. (N. Y.) 
 
 it was intended to make him a compe- 95 ; Baker v. Commonwealth, 2 Va. 
 
 tent witness. Cas. 353 ; Simpson v. Hall, 4 S. & R. 
 
 2 State V. Truss, 9 Port. (Ala.) 126; (Pa.) 337 ; Rapp v. Le Blanc, 1 Dall. 
 Lemon v. State, 19 Ark. 171. (U. S.) 63; McVeagh v. Goods, Id. 
 
 8 Ala. Code, 1876, § 4420 ; Bohan- 62. 
 non V. State, 73 Ala. 47. 6 Supra, § 73. 
 
§ 76.] PARTIES AND PERSONS INTERESTED. 121 
 
 witnesses without a release, to prove the payment or receipt 
 of money, or the delivery of goods, on the part of their mas- 
 ters, though their evidence tended to discharge themselves.^ 
 Thus a servant in charge of his master's property, which has 
 been injured by the negligence of another, is a competent 
 Avitness in an action by the master for damages.^ And in an 
 action against the master of a canal-boat for negligence in 
 navigating her, whereby injury is done to her, the helmsman 
 of the defendant is a competent witness for him, if the de- 
 fendant had the immediate charge and direction of the boat 
 at the time of the injury.^ So, also, a cropper, or overseer 
 who was to receive for his services a share of the crop planted 
 in the field v/here a trespass was committed, is a competent 
 witness for the plaintiff.* 
 
 A clerk who has received money is a competent witness 
 for the person who paid it, to prove the payment, though he 
 is himself liable on the receipt of it;^ and the fact that a 
 clerk's compensation depends somewhat upon the amount of 
 sales, will not disqualify him as a witness for his employer.^ 
 So, also, a clerk who pays out the money of his employer by 
 mistake is a competent witness for his employer in an action 
 to recover it back.'^ 
 
 Under special statutory provisions, the engineer in charge 
 of a train, or other employee of the railroad, causing an in- 
 jury, is not a competent witness for the company in an action 
 to recover damages therefor, without a release.* But in the 
 absence of such a statute, a hired laborer who works under 
 the eye and immediate direction of his employer, if responsi- 
 ble to any one for negligence or unskilfulness, is responsible 
 only to his employer ; and, being released by him, he is a 
 competent witness in an action for negligence and unskilful- 
 ness in the performance of a contract under which the work 
 
 ^ Alexander ?i. Emerson, 2 Litt. ^ Roberts v. Totten, 13 Ark. 009 ; 
 
 (Ky.) 25; Phelps o. Sinclair, 2 N. 11. Diggs t. Kirkland, 8 La. Ann. 300; 
 
 554; Bank of Kentucky i'. McWil- 'Wright v. Rogers, 18 Id. 671. S. P. 
 
 Hams, 2 J. J. Marsh. (Ky.) 256; Bull. Campbell v. Thompson, 16 Me. 117. 
 N. P. 289. ' Burd ;;. Ross, 15 Mo. 254. 
 
 2 Dudley v. BoUes, 24 Wend. (N. ^ Catawissa R. 11. Co. v. Armstrong, 
 
 y.) 465. 49 Pa. St. 186 ; Chicago &c. R. R. Co. 
 
 s Noble V. Paddock, 19 "Wend. v. Hutching, 34 111. 108 ; Memphis &c. 
 
 (N. Y.) 456 ; Barnes v. Cole, 21 Id. 188. R. R. Co. v. Tugwell, 1 Coldw. (Tenn.) 
 
 * Carter v. Pinchbeck, 7 Rich. 91 ; or even it seems with a release. 
 
 {S. C.) 356. Home v. Memphis &c. R. R. Co. 1 
 
 6 Matthews v. Hayden, 2 Esp. 509. Coldw. (Tenn.) 72. 
 
122 COMPETENCY. [CHAP. VI. 
 
 was done.-' So, where two laborers commit a trespass on 
 personal property, they are competent to prove that the de- 
 fendant directed them to do the act.^ Again, a pilot is a 
 competent witness for the owners of a steamer, in an action 
 against them to recover damages for a loss occasioned by 
 negligence, unless it was his own negligence,^ or by an un- 
 jiistifiable jettison of plaintiffs goods.* But where the 
 defence is that the loss was occasioned by the want of skill 
 or negligence of the pilot, he is not a competent witness for 
 the plaintiff.^ So, also, in an action against a town, to recover 
 the value of goods laden on a wagon, alleged to have been 
 lost by reason of a defect in a highway;'' or against the 
 owners of a steamboat for the loss of a wagon in crossing a 
 ferry,'^ or by collision with a ferry-boat;^ or against one who 
 forcibly took a horse from the team," the driver in charge 
 at the time is a competent witness for his principal, the plain- 
 tiff. And a cartman employed by plaintiff to deliver goods 
 for transportation to a railroad company is a competent wit- 
 ness for plaintiff to prove the delivery, without a release.^" 
 
 § 77. Shareholders and Corporate Officers. — The general 
 rule excluding parties to the record ^^ was formerly held 
 to apply to members of a corporation suing or sued in its 
 corporate name, to the same extent as to parties suing or sued 
 in their individual capacities. Thus, in ejectment for lands 
 of a corporation, one of its members was not allowed to tes- 
 tify, if interested either in the lands sought to be recovered, 
 or in the general funds of the corporation which were liable 
 to the costs of the action.^^ But in England, since Lord Den- 
 man's act,^^ persons not individually named in the record are 
 competent though in truth parties in interest; consequently 
 members of a corporation suing or sued in its corporate name 
 are no longer incompetent merely by reason of being parties 
 in interest : and the same is the rule in tliis country.^* 
 
 1 Downer v. Davis, 19 Pick. (Mass.) " Moore v. Shenlc, 3 Pa. St. 13. 
 72. 1" Moses v. Boston &c. E. R. Co., 
 
 2 Jones !•. Lowell, 35 Me. 538. 24 N. II. 71. 
 
 ^ Johnson v. Lightsey, 34 Ala. 169. '^ Supra, chap. IV. 
 
 « Bentley v. Bustard, 16 B. Mon. ^^ poo v. Tooth, 3 Younge & J. 19 ; 
 
 (Ky. ) 643. Godmanchester v. Phillips, 4 Ad. & E. 
 
 ^ Plumer W.Alexander, 12 Pa. St. 81. 650. See also Weller k. Foundling 
 
 Littlefield v. Portland, 26 Me. 37. Hospital, Peake, N. P. 153. 
 ' Harris v. Plant, 31 Ala. 639. is o & 7 Vict. c. 85. 
 
 8 Otis V. Thorn, 23 Ala. 469. " hifra, chap. VIII. 
 
§ 77.] PARTIES AND PERSONS INTERESTED. 123 
 
 In considering the competency of members of corporations 
 as against the objection of interest in the event, regard must 
 be had to the two great classes of corporations, puhlio and 
 private, to one or the other of which every corporation 
 belongs ; for it was a well settled rule, that in all cases where 
 the corporation suing or sued was of a public nature, com- 
 prehending one of the divisions of the State, such as a county, 
 town, school district, parish, or village, the members of such 
 corporation were competent witnesses ; for they are not con- 
 sidered as having a personal, but only a corporate interest, 
 which ought to go to the credit only, and not to the compe- 
 tency ; and there are many instances where, if they were 
 excluded, no testimony whatever could be obtained.^ And in 
 this category are also to be included institutions for chari- 
 table or pious purposes, which, though strictly speaking, 
 private corporations, are also of a public nature ; the members 
 therefore, having no individual interest, are competent wit- 
 nesses.^ 
 
 But in the case of all private corporations except religious 
 societies and charities, including all moneyed institutions, 
 such as banks, insurance, manufacturing, railroad, and tele- 
 . graph companies, and the like, where membership is obtained 
 by the purchase of stock or shares, and the interest thus ac- 
 quired is private, pecuniary, and vested, like ownership of 
 any other sort of property, a different rule prevailed, and 
 members of such corporations were excluded from the wit- 
 ness-box, at common law, on the ground of interest, the same 
 as were individuals suing or being sued alone.^ 
 
 In applying these principles as regards public corporations, 
 it has been repeatedly held that inhabitants of towns are 
 competent witnesses in actions where the towns are parties;* 
 
 1 Smith ,.. Barber, 1 Root (Conn.) Iron Co., 8 Bush (Ky.) 166. And 
 207 ; Methodist Church v. Wood, see Skelton v. Tomlinson, 2 Root 
 Wright (Ohio) 12 ; Ezell v. Giles (Conn.) 132. 
 
 County,, 3 Head (Tenn.) 583 ; Kemper * Hunter v. Marlborough, 2 Woodb. 
 
 u. Victoria, 3 Tex. 135. & M. (U. S.) 168 ; Mayor &c. v. Wright, 
 
 2 Cincinnati o. Wood, 5 Ohio, 583 ; 2 Port. (Ala.) 230 ; Barada !'. Caunde- 
 Miller v. Mariners' Church, 7 Me. 51 ; let, 8 Mo. 644 ; Canning v. Pinkham, 
 Methodist Church ,;. Wood, 5 Ohio, 1 N. H. 353 ; Schenck v. Corshen, Coxe 
 283 ; Davies v. Morris, 17 Pa. St. 205. (N. J.) 189 ; Orange v. Springfield, 1 
 
 3 Maysville v. Shultz.S Dana (Ky.) South. (N. J.) 186 ; Roll v. Maxwell, 
 13, 14 ; Methodist Church v. Wood, 2 Id. 493 ; Jackson v. Hillsborough, 1 
 Wright (Ohio) 12; Digby v. Kenton Dev. & B. (N. C.) L. 177; Maysville 
 
124 COMPETENCY. [chap. VI. 
 
 and so are inhabitants of a county made a party to the suit,i 
 or of a State,^ or of a municipal corporation,^ or of a school 
 district.* So, also, the fact that the penalty which may be 
 recovered in a criminal case will go to a particular town, 
 does not render the inhabitants of that town incompetent 
 witnesses for the State, in the prosecution.^ In Pennsylvaiiia 
 and Vermont, a distinction, similar to that which existed for 
 a long time in England, was made, between taxed (rated) 
 and untaxed, but taxable (ratable) inhabitants, the former 
 being excluded and the latter admitted,^ but the incompe- 
 tency of rated inhabitants was long since removed by 
 statute, in England,'' and also in those of the States which 
 had followed the English distinction.^ 
 
 But where the inhabitants of the corporation suing or 
 being sued were individually and personally interested in the 
 event of the suit, they were deemed incompetent witnesses. 
 Thus it is held that where a party sets up a common right in 
 all the inhabitants of a town, an inhabitant of such town is 
 not a competent witness to establish the right.^ So an in- 
 habitant could not prove a right of way by prescription in all 
 the inhabitants;^" nor a customary right in them to take shell- 
 fish in a particular place ;ii for a verdict for one inhabitant, 
 in such a case, would be evidence for another claiming in the 
 same right. But this ground of objection has also been re- 
 moved by statute.^2 
 
 I'. Schultz, 3 Dana (Ky.) 10; Pond i\ v. Jamaica, 12 Johns. (N". Y.) 285. 
 
 Sage, 1 D. Chip. (Vt.) 250; Smith v. See Doe d. Harrison f.Murrell, 8 Car. 
 
 Barber, 1 Root (Conn.) 207 ; Salisbury & P. 124. 
 v. Harwinton, Id. 435. ' 54 Geo. III. c. 170, § 9 ; 3 & 4 
 
 1 Burlington v. Fenimore, Coxe Vict. c. 26. 
 
 (N.J.) 190. 8 Barnet v. School Directors, 6 
 
 2 Connecticut v. Bradish, 14 Mass. Watts & S. (Pa.) 46 ; Peachum v. 
 296. Carter, 21 Vt. 515. And see infra, 
 
 8 Sawyer v. Alton, 4 111. 127 ; Trus- chap. VIII. 
 
 tees of Watertown o. Cowen, 4 Paige ^ Moore v. Griffin, 22 Me. 350 ; 
 
 (N. Y.) 510; Pack o. Mayor of New Jacobsonn. Fountain, 2 Johns. (N. Y.) 
 
 York, 3 N. Y. 489 ; Mann o. Yazoo 170 ; Gould v. James, 6 Cow. (N. Y.) 
 
 City, 31 Miss. 574 , Lewis v. San An- 369. 
 
 tonio, 7 Tex. 288 ; Mayor &c. v. Vf right, i» Odiorne v. Wade, 8 Pick. (Mass.) 
 
 2 Port. (Ala.) 230. 518. 
 
 * Gass u. Gass, 3 Humph. (Tenn.) u Lufkin v. Haskell, 3 Pick. (Mass.) 
 
 278. 356. 
 
 5 State V. Woodward, 34 Me. 293. ^3&i Wm. IV. c. 42 ; Look v. Brad- 
 
 6 Commonwealth u. Baird, 4 S. & ley, 13 Mete. (Mass.) 369; 7n/ra, chap. 
 E. (Pa.) 141 ; Chester v. Eockingham, VIII. 
 
 Brayt. (Vt.) 239. Contra, Bloodgood As to the competency of township 
 
§ 77.] PAETIBS AST) PERSONS INTEEESTED. 125 
 
 Members of charitable and religious societies, who can have 
 no personal and private pecuniary interest in the event of the 
 litigation in which the corporation is involved, are competent 
 witnesses at common law,^ if they have no personal or private 
 interest in the property of the corporation.^ Upon this 
 ground a member of the society of freemasons,^ the pruden- 
 tial committee of a school district,* or the trustees of such 
 district," or of an independent educational institution,® and 
 members of the society of Shakers, though they hold all 
 things in common, unless the suit directly concerns the com- 
 mon -property, in which case they must first release their in- 
 terest,^ are competent witnesses in favor of the society or 
 institution to which they belong. So are treasurers of church 
 corporations,^ trustees of a ministerial fund,^ or of a society 
 for the instruction of seamen,^'' or even of a savings bank, 
 provided such trustees be not stockholders or depositors.!^ 
 
 We now come to consider more in detail the cases on the 
 competency of shareholders and members of pecuniary or 
 moneyed corporations, to testify in suits by or against the 
 corporation : and first it may be observed that the earlier 
 decisions hold them incompetent in all cases where there is a 
 common fund distributable among the members, and in which 
 they therefore have a private, personal interest which might 
 
 officers to testify in actions by or 478 ; s. c, Ala. Sel. Cas. 385; Trapnall 
 
 against the town, see Ferris v. Ward, v. Burton, 24 Ark. 371. 
 
 9 111. 499 ; Emerson v. Newbury, 13 * Hill o. School District No. 2, 17 
 Pick. (Mass.) 377; Stewart v. Say- Me. 316; Allen i,-. Westport, 15 Pick, 
 brook Township, Wright (Ohio) 374; (Mass.) 35. 
 
 McFarland v. Commissioners &c., 12 ^ Holbrook ?•. Trustees, 22 111. 539. 
 S. & E. (Pa.) 297; Prescott v. Du- « Hershy u. Clarksrille Institute, 
 
 quesne, 48Pa. St. 118; Yuran w. Kan- 15 Ark. 128. 
 
 ilolph, 6 Vt. 369 ; Eeed v. Field, 15 Vt. ' Anderson v. Brock, 3 Me. 243 ; 
 
 672 ; Battey c. Duxbury, 23 Vt. 714 ; Richardson v. Freeman, 6 Me. 57 ; 
 
 White V. Inhabitants of Phillipston, Wells v. Lane, 8 Johns. (N. Y.) 462. 
 
 10 Mete. (Mass.) 108; Highway 8 Matter of Kip, 1 Paige (N. Y.) 
 Commr's v. Stockman, 5 Mich. 528; 601. 
 
 Peck V. Freeholders of Essex, 1 Spenc. ' Ministerial Fund v. Eeed, 39 Me. 
 
 (N. J.) 457; State ^. Williams, 13 41. 
 
 Ohio, 495. 10 Miller r. Mariners' Church, 7 Me. 
 
 • Nason v. Thatcher, 7 Mass. 398 ; 51. 
 Hebrew Cong. v. United States, C Ct. " Middleton SaTings Bank i?. Bates, 
 
 of CI. 241 ; Shortz v. TJnangst, 3 Watts 11 Conn. 519. To the contrary, see 
 
 & S. (Pa.) 45. Contra, Stone v. Berk- Adams v. Leland, 7 Pick. (Mass.) 62, 
 
 shire Cong. Soc, 14 Vt. 86. where a trustee of a charity was held 
 
 ^ Sorg V. First German &c. Cong., incompetent by reason of his liability 
 
 63 Pa. St. 156. for costs, even though, pending the 
 
 ' Burdine v. Grand Lodge, 37 Ala. suit, he had resigned his trust. 
 
126 COMPETENCY. [CHAP. VI. 
 
 be affected by the event of the suit.^ But the Avitness could 
 be rendered competent to testify for the corporation by a 
 lo7ia fide sale or transfer of his shares in the corporate stock 
 before suit brought,^ though the debt sued for existed at the 
 time of the transfer, and continued to exist until the suit was 
 brought.^ So, also, the witness could be rendered competent 
 by disfranchisement, which was effected by means of an in- 
 formation in the nature of a quo warranto against him, which 
 he confessed, whereupon the plaintiff took a judgment dis- 
 franchising him.* But there were many facts as to which 
 even the earlier decisions permitted the corporator or Stock- 
 holder to testify : thus he could produce and identify a paper 
 in his custody ; or prove that he was the depository of the 
 muniments of the corporation ; or verify the records of the 
 company ; ^ or prove its account.^ He could also testify to 
 his official acts as treasurer of the company,^ or prove a con- 
 tract made by him as agent of the corporation, and his author- 
 ity to make it,^ or service of a notice by him as such agent.^ 
 So, also, he could prove the acceptance by the company of an 
 amendment to its charter.^'' Again, a member of a corporation, 
 who was its surety for the payment of a debt not in contro- 
 versy iu the suit on trial, was not on that account an incompe- 
 tent witness for the corporation.^! It is no sufficient ground 
 for excluding a witness from testifying for a corporation, 
 
 ^ Doe d. Mayor &c. v. Tootli, 3 Bank o. Owen, 4 Humph. (Tenn.) 
 
 Younge & J. 19 ; Davies v. Morgan, 1 338. 
 
 Tyrwh. 457 ; City Council u. King, 4 * Mayor of Colchester v. , 1 
 
 McCord(S. C.) 487, 488 ; Montgomery P. Wms. 595. 
 
 &c. Co. V. "Webb, 27 Ala. 618 ; Moke- ^ Ryder v. Alton &c. K. R. Co., 13 
 
 lumne &c. Co. i/. Woodbury, 14 Cal. 111. 51G ; Blen v. Bear River &c. Co., 
 
 2G5; Jefferson v. Stewart, 4 Harr. 20 Cal. 602 ; Peake k. Wabash R. K. 
 
 (Del.) 82; Southern &c. Co. «. Cole, Co., 18 111.88; Union Bank i-. Ridglcy, 
 
 4 ria. 359; Thrasher v. Pike &c. R. R. 1 Har. & G. (Md.) 324; Wiggin v. Pr°c- 
 
 Co., 25 111. 393 ; Pierce v. Kearney, 5 will Church, 8 Mete. (Mass.) 301. 
 
 Hill (N. Y.) 82; Hill v. Prazier, 22 Pa. ^ Cooper u. Sisters of Providence, 
 
 St. 320. leind. 164. 
 
 2 Tuolumne &c. Co. v. Columbia &c. ' York &c. E. E. Co. v. Pratt, 40 
 Co., 10 Cal. 193. But see McAuley v. Me. 447. 
 
 York Mining Co., 6 Cal. 80; Mill-Dara ^Ridgely v. Dobson, 3 Watts & S. 
 
 Foundry u. Hovey, 21 Pick. (Mass.) (Pa.) 118. S. P. Rhodes v. Sherrod, 9 
 
 453. Ala. 63. 
 
 3 Smith V. Talassee Branch of Cen- ' Union Canal Co. u. Loyd, 4 Watts 
 tral Plank-Road Co., 30 Ala. 650; & S. (Pa.) 393. 
 
 Mutual Pire Ins. Co. v. Marseilles &c. " Fell v. McHenry, 42 Pa. St. 41. 
 
 Co., 6 111. 236 ; Utioa Ins. Co. v. Cad- " Miller v. Mariners' Church, 7 
 well, 3 Wend. (N. Y. ) 296; Union Me. 51. 
 
§78.] 
 
 PAUTIKS AND PERSONS INTEEESTED. 
 
 127 
 
 that he may be liable, under the statute, for the debts of the 
 corporation, on account of his having been a stockholder 
 therein .1 
 
 The practical utility of all these decisions has been much 
 diminished in several of the States by the enactment of ex- 
 press statutes making members of private corporations com- 
 petent witnesses, and in others by general statutes removing 
 the disqualification of interest from witnesses generally.^ 
 
 § 78. Trustee or Cestui que Trust. — (1) Trustee. The de- 
 cisions bearing on the competency of trustees of corporate 
 bodies and charitable and eleemosynary institutions have just 
 been examined; we come now to consider the effect of the 
 private relation of trustee and cestui que trust upon the com- 
 petency, at the common law, of the parties to that relation. 
 
 In England, prior to Lord Denman's act, and in several of 
 the States of the Union, before the passage of the enabling 
 acts, a party to an action sued as a mere trustee for another 
 
 1 White Mountains K. K. Co. c. 
 Eastman, 34 N. H. 124 ; Manchester 
 Bank v. White, 30 N. H. 456. See 
 also Hasey v. White Pigeon &c. Co., 
 
 I Uougl. (Midi.) 193. 
 
 ^ See infra, chap. VIII. ; also the fol- 
 lowing cases : Bredow r. Mutual Sav- 
 ings Institution, 28 Mo. 181 ; Barclay 
 V. Glohe &c. Ins. Co., 26 Mo. 490; 
 Bergen &c. Association u. Cole, 2 
 Dutch (N. J.) 362 ; Montgomery Bank 
 V. Marsh, 7 N. Y. 481 ; New York.&c. 
 K. R. Co. V. Cook, 2 Sandf. (N. Y.) 
 732 ; Washington Bank v. Palmer, Id. 
 686. 
 
 As to stockholders and officers of 
 banks, see Bank v. Wycoff, 4 Dall. 
 (U. S.) 151 ; Bank of Alexandria v. 
 McCrea,2 Cr. C. C.649; Bank v. Bates, 
 
 II Conn, 519; Huntress v. Patten, 20 
 Me. 28 ; Bank of Oldtown v. Houlton, 
 21 Me. 501 ; Lewis v. Eastern Bank, 
 32 Me. 90 ; Leominster v. Fitchburg 
 &c. R. R. Co., 7 Allen (Mass. ) 38 ; Lake 
 v. Munford, 12 Miss. 312; Stall v. 
 Catskill Bank, 18 Wend. (N. Y.) 466; 
 Montgomery County Bank i'. Marsh, 
 11 Barb. (N. Y.) 645; New York &c. 
 Bank u. Gibson, 5 Duor (N. Y.) 574; 
 Petitt V. First &c. Bank, 4 Bush (Ky.) 
 3.34 ; Stevenson v. Simmons, 4 Jones, 
 
 (N. C.) L. 12 ; Porter r. Bank of Rut- 
 land, 19 Vt. 410 ; Sterling v. Marietta 
 Company, 11 S. & R. (Pa.) 179; Stew- 
 art u. Huntingdon Bank, Id. 267 ; 
 Jackson v. Bank of United States, 
 10 Pa. St. 61 ; Meighen v. Bank, 25 Pa. 
 St. 288. 
 
 Officers of insurance companies, see 
 United States !'. Johns, 4 Dall. (U. S.) 
 412 ; National &c. Ins. Co. u. Crane, 
 16 Md. 260; Philadelphia Ins. Co. ^. 
 Washington Ins. Co., 23 Pa. St. 2-50. 
 
 Manufacturing companies, see Wy- 
 man v. American Powder Co., 8 Cush. 
 (Mass.) 168. 
 
 Railroad companies, see Alabama 
 &o. R. R. Co. V. Sanford, 36 Ala. 703 ; 
 Philadelphia &c. R. R. Co. v. Hick- 
 man, 28 Pa. St. 318 ; Newcastle &c. R. 
 R. Co. V. Brumback, 5 Ind. 543 ; New 
 Albany &c. R. R. Co. v. Gillespy, 7 
 Ind. 245 ; Penobscot &c. R. R. Co. u. 
 Dunn, 39 Me. 587. 
 
 Turnpike companies, s^q Unthank v. 
 Turnpike Co., 6 Ind. 125 ; Turnpike 
 Co. 1). Burdett, 7 Dana (Ky.) 99. 
 
 Toll-bridge companies, see Watson 
 ( . Lisbon Bridge, 14 Me. 201 ; Ameri- 
 scoggin Bridge v. Bragg, 11 N. H. 102. 
 
 ]V(ifpr companies, see Wolf v. St. 
 Louis &c. Co., 15 Cal. 319. 
 
128 COMPETENCY. [CHAP. VI. 
 
 person, though he had no interest in the question in dispute, 
 was, nevertheless, liable to costs ; and on that ground was 
 considered incompetent as a witness.^ But the more prev- 
 alent rule in this country, even at a comparatively early 
 date, was, that a mere naked trustee, having no real interest 
 in the suit in which he was joined as a defendant, was a 
 competent witness for a co-defendant.^ Even where he was 
 rejected at law, he was admitted as a witness in equity.^ So, 
 also, it was formerly held that a plaintiff of record could not 
 be examined as a witness to support the action, although he 
 was shown to be a mere trustee by other testimony; nor 
 could he be made competent by the deposit of a sum of 
 money sufficient to cover the costs of the suit, although he 
 at the same time released all his interest in the sum to be 
 recovered to the person beneficially entitled to it ; * but the 
 better opinion was that where the name of a plaintiff for the 
 use of another is on the record only as a naked trustee, 
 and the cestuis que trust who are liable for costs are alone 
 interested in the suit, and could have maintained it in 
 their own names as legal plaintiffs, such plaintiff for use is 
 a competent witness for them.^ 
 
 A trustee under a will, who took no beneficial interest 
 under the will, was a good attesting witness;*' and competent 
 to testify in a suit involving the validity of the wilU or deed 
 of trust.^ But one of several trustees who was interested to 
 keep the trust fund as large as possible, was deemed incom- 
 petent to testify in an action against his co-trustees ; ^ and a 
 trustee who had misapplied a portion of the trust fund was 
 
 1 Dowdswell V. Nott, 2 Vern. 317 
 Phillips I. Buckingham, 1 Id. 230 
 Bauerman u. Eadenius, 7 T. R. 668 
 
 3 Hawkins v. Hawkins, 2 Law Ee- 
 pos. (N. C.) 627. 
 
 * Stone V. Bibb, 2 Ala. 100. 
 
 Davis V. Morgan, 1 Tyrwh. 457; s. c, '' Keim v. Taylor, 11 Pa. St. 163; 
 
 1 Cromp. & J. 87; Hawkins v. Haw- Spaulding v. Bull, 1 Duv. (Ky.) 311. 
 
 kins, 2 Law Repos. (N. C.) 627. See also Eacho u. Cosby, 26 Gratt. 
 
 2 Main t: Newson, Anth. (S. Y.) (Va.) 112. 
 18 ; Johnson v. Cunningham, 1 Ala. ^ Phipps v. Pitcher, 6 Taunt. 220 ; 
 
 249 ; Hardwick ». Hook, 8 Ga. 3.54 ; Comstock v. Hadlyme, 8 Conn. 254. 
 McLaughlin v. McLaughlin, 16 Mo. ' Peralta u. Castro, 6 Cal. 354 ; 
 
 242; Hale v. Meegan, 39 Mo. 272; Montgomery «. Perkins, 2 Mete. (Ky.) 
 
 Neville v. Demeritt, 1 Gr. (N. J.) Eq. 448. But see Sears v. Dillingham, 12 
 
 321 ; Jones v. Sosser, 1 Dev. & B. Mass. 358. 
 (N. C.) L. 452; Harvey;). Alexander, ^ Johnson c. Cunningham, 1 Ala. 
 
 1 Rand. (Va.) 219 ; Taylor v. Moore, 249. 
 
 2 Id. 563. « Hayden v. Cornelius, 12 Mo. 321. 
 
§ 79.] PARTIES AND PEESONS INTEEESTED. 129 
 
 not a competent witness hy whom to show the purposes for 
 which the trust was created.-'. 
 
 After the execution and termination of the trust,^ or after 
 the trust property had passed out of his hands, by decree of 
 a court of competent authority ,2 the trustee became compe- 
 tent to testifj'' as to tlie title to the trust property, or as to 
 demands against the cestuis que trust.* 
 
 (2) Cestui que Trust. Under the principle that a witness 
 should not be permitted to testify either to increase or 
 protect a fund in which he is entitled to participate, a 
 cestui que trust was not allowed, at common law, to support 
 by his testimony the title of his trustee ;^ or to assist him in a 
 suit for the recovery of property alleged to belong to the trust 
 estate;" as, for instance, an ejectment suit.'^ But in an 
 action by a purchaser from the trustee to recover the prop- 
 erty, the cestui que trust was held a competent witness for 
 the plaintiff, his testimony being clearly against interest.^ 
 
 § 79. Usurious Contracts, Parties to. — (1) Sorrower. It 
 was held at common law, that where the equity of redemp- 
 tion has been sold by the sheriff, and no decree of foreclo- 
 sure is necessary as against the mortgagor, he may prove 
 usury in the mortgage ; ^ and that he may also do so where 
 he has suffered a bill to foreclose to be taken pro confesso 
 against him, another party to the suit attacking the mort- 
 gage as usurious.^" In some jurisdictions it was held that 
 the borrower of money lent upon usury may be a competent 
 witness to prove the usury against the lender, who sues upon 
 the usurious contract, if the lender will not deny the usury 
 on oath ; 11 or decline to testify concerning it.^^ And if the 
 usury did not appear upon the face of the contract, the 
 borrower could testify as to its existence in preceding parts 
 
 1 Heartrunft v. Daniels, 43 111. 369. ' Campbell v. Galbreath, 5 Watts 
 
 2 McNeill V. Arnold, 17 Ark. 154. (Pa.) 423. 
 
 3 Southard o. Gushing, 11 B. Mon. » Petermans v. Laus, 6 Leigh ( Va. ) 
 (Ky.) 344. 523. 
 
 * See also Virgin v. Wingfield, 54 9 Brolasky u. Miller, 1 Stock. (N. 
 
 Ga. 451; Wilson v. Hanson, 20 N. H. J.) 807. Compare Cummins v. Wire, 
 
 375. 2 Halst. (N. J.) 73; Nichols u. Hol- 
 
 s Buchanan v. Buchanan, 46 Pa. gate, 2 Aik. (Vt.) 138. 
 
 St. 186 ; Bank of Alabama «.McDade, i" Post v. Dart, 8 Paige (N. Y.) 639. 
 
 4 Port. (Ala.) 252. " Thomas v. Brown, 1 McCord (S. 
 
 15 St. John V. Amer. Mut. Life Ins. C.) 557 ; Jones v. Kirksey, 10 Ala. 579. 
 
 Co., 2 Duer (N. Y.) 419. See also ^2 Quarles u. Brannon, 5 Strobh. 
 
 Hoak V. Hoak, 5 Watts (Pa.) 80. (S. C.) 151. 
 
130 COMPETENCY. [CHAP. VI. 
 
 of the transactions ; ^ as, that other notes existed which had 
 been cancelled, the consideration of which entered into, and 
 formed a part of, the note in suit.^ But in an early case it was 
 held that the borrower was not a competent witness to prove 
 that usurious interest was reserved in another State ; ^ or, 
 after paying the usury, to testify in a suit to recover it back.* 
 
 (2) Lender. It was held in New York, that where a suit 
 at law is brought upon a usurious note, in the name of an 
 assignee, for the benefit of the usurious lender, such lender 
 cannot be compelled to testify to the usury, at law.^ In South 
 Carolina, by statute, the lender can be a witness only where 
 the borrower is not a competent witness by the common law;® 
 and where the borrower offered to swear to the circumstances 
 of usury, and made a statement of the facts he would swear 
 to, and the plaintiff made himself a witness, it was held that 
 it was not enough that he denied generally the truth of the 
 statement made by the defendanb; that he must submit to 
 be examined by the defendant in answer to the facts stated 
 by him.7 
 
 § 80. Vendor and Purchaser of Lands. — (1) Vendor. Tlie 
 
 decisions upon the competency of parties to a conveyance of 
 
 land were pretty fully considered in a previous section,^ but 
 
 a few cases, most of which were not there referred to, may 
 
 be worthy of citation here. And first it was pretty well 
 
 settled that a vendor without warranty,^ or by quit-claim 
 
 deedji" or whose interest was equally balanced, ^^ or merely of 
 
 a moral, and not a legal nature,^^ or whose title did not come 
 
 in question even though the purchase-money had not been 
 
 paid,^^ or who had been released from his covenants as to title, ■** 
 
 ' Campbell v. McHarg, 9 Iowa, ' Hyman v. Bailey, 15 La. Ann. 
 
 354 ; Smith v. Coopers, Id. 376. 560 ; Johnston v. Eckhart, 3 Yeates 
 
 2 Palmer v. Severance, 8 Ala. 53. (Pa.) 427. 
 
 ■See also Gordon v. Goodell, 34 111. i" Johnson v. Parks, 10 Cal. 446 ; 
 429. Swisher „•. Williams, Wright (Ohio) 
 
 3 Bazemore v. Wilder, 10 Ala. 773. 754. 
 
 « Lucas V. Spencer, 27 111. 15. " Garner v. Bridges, 38 Ala. 276. 
 
 s Beggs u. Butler, 1 Clark (N. Y.) i^ jones v. Love, 9 Cal. 68, where 
 
 517. As to the competency of par- the vendor made a parol promise to 
 
 tijes to negotiable paper to prove make good certain boundaries, as 
 
 usury therein, see supra, § 66. represented by him. 
 
 " Kecheley o. Cheer, 4 McCord i^ Rowe u. Bradley, 12 Cal. 226 ; 
 
 (S. C.) 307. Cleavinger v. Keimar, 3 Watts & S. 
 
 ' Murden v. Clifford, 4 McCord (Pa.) 486. 
 
 (S. C.,),65. "Summers v. Wallace, 9 Watts 
 
 8 Supra, § 59. (Pa.) 161. 
 
§ 80.] PARTIES AND PERSONS INTERESTED. 131 
 
 was a competent witness in an action having relation to the 
 land. So, also, the vendor could testify for the vendee, in 
 the latter's action of ejectment, claiming damages accruing 
 while the land was held by the vendor ; ^ and this, although 
 he could not be a competent witness to support his vendee's 
 title in an action against him for the premises by a third 
 person.^ But where both parties claimed under the witness, 
 he was competent ; ^ and so was he in a suit between his own 
 creditor and the vendee.* Again, the vendor was admitted 
 as a witness to invalidate his own deed, his testimony being 
 clearly against interest ; ^ and, conversely, to sustain the deed 
 against the charge of fraud, for fraud in the grantor avoids 
 the deed though the grantee be not affected therewith.^ The 
 vendor is a competent witness against the vendee, though his 
 declarations would not be evidence against him.'^ He has 
 also been held competent to testify as to a servitude existing 
 at the time of the conveyance, though his testimony be adverse 
 to the vendee.* One who signs a deed as attorney may 
 testify for or against it ; ^ and one of two attorneys executing 
 a deed may prove the execution of it by himself, but not by 
 his co-attorney, where there is a subscribing witness to the 
 deed.io 
 
 On the other hand, it was settled that a vendor with war- 
 ranty was incompetent, as a witness, to sustain the title to the 
 property he had conveyed. ^^ Nor could the vendor prove 
 the execution of the deed, in an action of trespass to try 
 title ; ^ or the lines of the land sold, if he conveyed it with 
 warranty.^^ So, also, where the sale was attacked as fraud- 
 
 ' Grady i'. Early, 18 Cal. 108. (Pa.) 71. See also Blair v. Owles, 1 
 
 2 Jackson v. Rice, 3 Wend. (N. Y.) Munf. (Va.) 38. 
 
 180. 9 Alston V. Jones, 2 Hayw. (N. C.) 
 
 3 Hill V. Canfield, 56 Pa. St. 454. 298. 
 
 * McKay v. Treadwell, 8 Tex. 176. ^° Jackson v. Britton, 4 Wend. (N. 
 5 M'Ferran v. Powers, 1 Serg. & Y.) 507. 
 
 R. (Pa.) 102; Brown u. Downing, 4 "Edwards v. Ballard, 14 B. Mon. 
 
 Id. 494; Barrett v. French, 1 Conn. (Ky.) 289; O'Blennis v. Corri, 6 La. 
 
 354 ; Stevenson v. Chapman, 12 N. H. Ann. 102 ; Moore v. McKie, 5 Sm. & 
 
 524; Seymour y. Beach, 4 Vt. 493. M. (Miss.) 238; Elliott </. Boren, 2 
 
 « Edgell I'. Lowell, 4 Vt. 405 ; War- Sneed (Tenn.) 662. But compare 
 
 ner v. Percy, 22 Vt. 155. See also Manifee ;>. Conn, 2 Bibb (Ky.) 623. 
 Colgin V. Redman, 20 Ala. 650. 12 Barryv. Wilbourne,2Bail. (S.C.) 
 
 ' Stemmons v. Duncan, 9 B. Mon. 91. 
 (Ky.) 351. 18 Moon v. Campbell, 1 Munf. (Va.) 
 
 * Macheca v. Aregno, 20 La. Ann. 600. 
 339 ; Greenwalt 0. Horner, 6 S. & R. 
 
182 COMPETENCY. [CHAP, VI. 
 
 ulent as against creditors, he could not testify for the cred- 
 itors,^ or for the vendee, the witness having taten security 
 for the purchase-money.^ Again, where the vendee is sued 
 in ejectment, the vendor cannot testify for the plaintiff, 
 especially when, by avoiding the deed, the recovery of the 
 plaintiff would inure to the common benefit of the plaintiff 
 and the witness. The rule is that no one but the party to a 
 deed, who alleges the fraud to have been practised upon him, 
 or those claiming title under him, will be allowed to impeach 
 or avoid the deed on that ground.^ The witness cannot show 
 what his supposition was at the time he executed the deed, 
 in order to invalidate it, unless such supposition was grounded 
 on the fraudulent representations of the other party.* 
 
 (2) Vendee. A vendee without interest in the event of 
 the suit was competent in an action between his vendor and 
 a third person.^ If he had sold the land, he could testify for 
 his vendor in a proceeding by the latter against the purchaser 
 to enforce the vendor's lien, to show notice of such lien to the 
 purchaser.^ And if it appeared that his vendor had no title, 
 he could prove the amount of rents and profits received by 
 the vendor, and improvements made by him.^ Or, the sale 
 being attacked as a fraud upon the vendor's creditors, he 
 could testify as to his intention in making the purchase, and 
 that the entire proceeds of the sale were immediately applied 
 in payment of the debts of the vendor.^ 
 
 But the vendor being dead, the vendee was held not com- 
 petent to prove that a conveyance by the deceased was made 
 on a secret trust that the grantee should pay his debts, as a 
 fund is thus provided for the payment of debts, and his own 
 purchase so far exonerated.^ And he was also held incom- 
 petent in ejectment by his vendor against the purchaser 
 of the land at a sale on execution as the property of the wit- 
 ness, to enforce payment of the purchase-monej'.^" 
 
 1 Bushnell v. City &c. Bank, 20 ^ Ringgold v. Bryan, 3 Md. Ch. 
 La. Ann. 464 ; Smead t. Williamson, 488. See also Hill v. McLean, 10 
 16 B. Mon. (Ky.) 492. Lea (Tenn.) 107. But compare Mes- 
 
 2 Pope 0. Andrews, 1 Sm. & M. senger v. Armstrong, 19 Ohio, 41. 
 (Miss.) Ch. 135. ' Hogan v. Stone, 1 Ala. 496. 
 
 3 Jackson D.Eaton,20 Johns. (N.Y.) " Bedell v. Chase, 34 N. Y. 386. 
 478. 9 Clagett v. Hall, 9 Gill. & J. (Md.) 
 
 * Ogden V. Peters, 15 Barb. (N. Y. ) 80. 
 560. 10 Jones v. Patterson, 1 Watts & S. 
 
 6 Town V. Wood, 37 111. 512. (Pa.) 321. 
 
§ 81. J PAKTIES AXD PERSONS INTERESTED. 133 
 
 § 81. Vendor aad Purchaser of Personal Property. — (1) 
 
 Vendor. It was pretty well settled that a seller of personal 
 property without recourse against him in case the title proved 
 defective, was a competent witness for the purchaser.^ So 
 was he where he was released from his warranty of title, in a 
 contest between the purchaser and creditors of the witness, 
 who attacked the sale as fraudulent.^ The mere fact that 
 the property sold was not in the possession of the witness 
 at the time of the sale did not disqualify him as a wit- 
 ness for tlie purchaser.^ He could uphold his sale in the 
 purchaser's action against the sheriff for attaching the goods 
 sold as the property of the witness,* or against any person 
 alleging a title hostile to the purchaser, or detaining the 
 goods from him," or who converted the same." 
 
 Where both parties claimed under the witness,^ the latter 
 having sold the property to both of them,^ the interest of the 
 witness being equally balanced, he was competent for either 
 party ; and such was held to be the case where the suit was 
 between the purchaser and an attaching creditor of the wit- 
 ness.^ 
 
 In several cases the vendor was held competent to prove 
 that he had no title, even though he had given a bill of sale 
 of the property, and had sold with warranty of title, the 
 contest being trover brought by a third person against the 
 vendee.^" 
 
 On the other hand, the more prevalent rule was that the 
 
 ' Mahone D. Yancey, 14 Ala. 395; 450; Waller „. Parker, 5 Coldw. 
 
 Connelly v. Chiles, 2 A. K. Marsh. (Tenn.) 476. 
 
 (Ky.) 242; Finlay v. Humble, Id. ' Miller t). Fitch, 7 Watts & S. (Pa.) 
 
 569 ; Cannon o. White, 16 La. Ann. 366. But see Wright u. Bonta, 19 
 
 85. See also Mclnroy v. Dyer, 47 Tex. 385. 
 Pa. St. 118. 8 Jones v. Park, 1 Stew. (Ala.) 419 ; 
 
 2 Cadbury v. Nolen, 5 Pa. St. 320. Butler v. Tufts, 13 Me. 302 ; Morrison 
 
 3 Lackey v. Stouder, 2 Ind. 376. v. Fowler, 18 Me. 402; Frost v. Hill, 
 « Zackowski v. Jones, 20 Ala. 189; 3 Wend. (N. Y.) 386. But compare 
 
 Sawyer v. Ware, 36 Ala. 675; Cog- McCabe v. Morehead, 1 Watts & S. 
 
 hill V. Boring, 15 Cal. 213; Sherron (Pa.) 518. 
 
 V. Humphreys, 2 Green (N. J.) 217; ^ Warner v. Carleton, 22 111. 415; 
 
 Graham v. McCreary, 40 Pa. St. 515; Nichols u. Patten, 18 Me. 231; Ward 
 
 Cox V. Hall, 18 Vt. 191. S. P. Good- ■;. Chase, 35 Me. 515. 
 
 rich i>. Hanson, 33 111. 498. i" Martin „. Kelly, 1 Stew. (Ala.) 
 
 5 Ellis V. Ellis, 1 Mo. 220 ; Hen- 198 ; Dickinson v. Dickinson, 9 Mete, 
 dricks t>. Mount, 2 South. (N. J.) 738. (Mass.) 471. S. P. Clinton v. Estes, 
 But see infra. 20 Ark. 216 ; Shropshire v. Shropshire, 
 
 6 Crosby v. Nichols, 3 Bosw. (N, Y.) 7 Yerg. (Tenn.) 166. 
 
134 COMPETEKCY. [CHAP. VI. 
 
 seller of chattels could not be a witness for the buyer in an 
 action involving the title to the property ; ^ and this was so in 
 trover against the buj'er, where the value as well as the title 
 was in question, even though the witness was so situated as to 
 be liable to the plaintiff if the sale were unauthorized, as well 
 as to the defendant on the warranty of title ; such witness 
 having a pecuniary motive for undervaluing the property by 
 his testimony.^ And numerous decisions denied the seller's 
 competency for his creditors, to impeach the sale, or to prove 
 it fraudulent, in a contest respecting it, between his creditors 
 and the buyer.^ The seller could not prove title in the buyer 
 unless released by the latter ; * or testify as to the soundness 
 of the chattel (a slave) whose soundness he had warranted.^ 
 The subject-matter being a cJiose in action, the vendor could 
 not by any sale of his claim, or by any other means whatever, 
 make himself a competent witness to support it.^ 
 
 (2) Purchaser. In a suit by the vendor against one who 
 guaranteed the payment by the purchaser, the latter was 
 held a competent witness for the plaintiff. ''^ And so was lie 
 to show a right of possession in the seller, in the latter's suit 
 in replevin against a third person ; * and the rule was the 
 same where the form of action was trespass,^ or trover,^" espe- 
 cially if the contract of purchase had been rescinded.^! 
 
 1 Lindsay v. Lamb, 24 Ark. 222 ; ^ Burke v. Clarke, 2 Swan (Tenn.) 
 Dunham y. Williams, Id. 264 ; Arnold 310. 
 
 V. McNeill, 17 Id. 179; Bennett o. " Hottenstein's appeal, 2 Grant 
 
 Quick, 13 La. Ann. 547; Hale v. (Pa.) Cas. 301; Swanzey t>. Parker, 
 
 Smith, 6 Me. 416 ; Thompson v. Towle, 50 Pa. St. 441. 
 
 32 Me. 87 ; Heskett v. Borden Mining ' Smith v. Bainbridge, 6 Blackf. 
 
 Co., 10 Md. 179; Whitney v. Hey- (Ind.) 12. 
 
 wood, 6 Cush. (Mass.) 82; Heermance ^ Mumma u. McKee, 10 Iowa, 107. 
 
 u. Vernoy, 6 Johns. (N. Y.) 5; Wet- Compare Ratcliffe v. Sangston, 18 
 
 more v. Click, 5 Jones (KT. C.) L. 155; Md. 383; Cutter v. Eathbun, 3 Hill 
 
 Saunders v. Addis, 1 Bail. (S. C.) 49; (N. Y.) 577. 
 
 Parker v. Hammond, 13 Vt. 242. But » Chamberlain v. Smith, 44 Pa. St. 
 
 see Dickersoni). Johnson, 24 Ark. 251 ; 431. 
 
 Pister & Beall, 1 Har. & J. (Md.) 31. i» Downs v. Belden, 40 Vt. 674. 
 
 2 Puller u. Townsend, 5 Den. (N. " Stafford v. Ames, 9 Pa. St. 343; 
 Y.) 184. Eabcock u. Huntington, 9 Ala. 869. 
 
 ' Waugenheim v. Childs, 23 Cal. See further as to the competency of 
 
 444; Bailey w. Foster, 9 Pick. (Mass.) the buyer in special cases. Loud c. 
 
 139; Rea v. Smith, 19 Wend. (N. Y.) Pierce, 25 Me. 233; Edwards v. Cur- 
 
 293; Gardenier v. Tubbs, 21 Id. 169. rier, 43 Me. 474; Kingsbury w. Smith, 
 
 But see Howe v. Scannell, 8 Cal. 325. 13 N. H. 109 ; Seymour v. Wilson, 14 
 
 * Freeman y. Lewis, 5 Ired. (N. C.) N. Y. 567; Turley v. Brewster, 33 
 
 L. 91. Tex. 188. 
 
§ 82.] PARTIES AND PERSONS INTERESTED. 135 
 
 § 82. Warrantors. — Most of the decisions on this subject 
 have already been examined,^ and we have seen that the 
 common law generally excluded from the witness-box the 
 warrantor of property, whether real or personal, when called 
 by the vendee or grantee, in an action involving the title to 
 such property .2 Even a remote warrantor, where there had 
 been several conveyances of the same land with warranty, 
 was not allowed to support the title in ejectment, his liability 
 on his warranty still existing.^ But where the validity of 
 the title could not be affected by the event of the suit, the 
 warrantor was not interested, and hence competent.* Where 
 the warranty was that a horse sold by the witness to the 
 defendant was sound, the warrantor was allowed to prove his 
 soundness in an action against the defendant on a similar 
 warranty.^ 
 
 Where the witness was called to impeach the title he had 
 warranted, the rule of exclusion did not apply, his testimony, 
 in such a case, being against interest.^ In sales by private 
 individuals in their own right, of property in possession, the 
 warranty of title was implied, and no express contract had to 
 be shown in order to exclude the warrantor from testifying ; " 
 but no such implied warranty arose in the case of sales by 
 sheriffs, personal representatives, or other trustees, except to 
 the extent of their having no knowledge of any defect in their 
 title or right to sell in their representative characters, and 
 therefore they were generally held competent.^ 
 
 1 Supra, §§ 52, 59, 80, 81. 6 Mulvany v. Eosenberger, 18 Pa. 
 
 2 McCarron v. Cassidy, 18 Ark. 34; St. 203. 
 
 Meek K. Walthall, 20 Ark. 648. « Robb v. Lefevre, 7 Iowa, 150; 
 
 2 Lawrence v. Senter, 4 Sneed Tuttle v. Turner, 28 Tex. 759. 
 
 (Tenn.) 52. In Louisiana he must ' Heermance v. Vernoy, 6 Johns, 
 
 have been cited in warranty in the (N. Y.) 5; Hale v. Smith, 6 Me. 416; 
 
 suit in which he was called to testify, Baxter v. Graham, 5 Watts (Pa.) 418. 
 
 or the objection of interest would not * Mockbee v. Gardner, 2 Har. & G. 
 
 exclude him. Arrowsmith v. Durell, (Md.) 176; Petermans v. Laws, 6 
 
 14 La. Ann. 849. Leigh (Va.) 523, 529. And see supra, 
 
 * Laftin v. Nally, 24 Tex. 565. §§ 68, 72, 78. 
 
CHAPTER VII. 
 
 RESTORATION TO COMPETENCY BY RELEASE OR ASSIGN- 
 MENT OF INTEREST, PAYMENT, OR OTHER DIVESTMENT 
 OP INTEREST. 
 
 § 83. Release of Interest, generally. 
 
 § 84. Who may give a Release. 
 
 § 85. When the Court may release. 
 
 § 86. Time to execute Release. 
 
 § 87. What Interests are, and what are not removed. 
 
 § 88. What is a Good and Sufficient Release. 
 
 § 89. Assignment or Transfer of Interest. 
 
 § 90. Divestment of Interest by Payment. 
 
 § 91. by Disclaimer of Title. 
 
 § 92. by Judgment for or against the Witness. 
 
 § 93. Effect of Indemnifying the Witness. 
 
 § 94. Other Modes of restoring Competency. 
 
 §95. Necessity of Seal ; Assent; Delivery. 
 
 § 96. Proof of Release ; Objections, etc. 
 
 § 83. Release of Interest, generally. — The disqualification 
 of interest may always be removed and the competency of 
 a witness restored by a proper and complete release.-^ If the 
 interest be a vested one in the witness himself, he may di- 
 vest himself of it, by a release or other proper conveyance; 
 if it consist in a liability over, whether to the party calling 
 him, or to another person, it may be released by the person 
 to whom he is liable.^ Thus the release by a member of a 
 corporation of his interest in it renders him a competent 
 witness for the corporation.^ It is reversible error to reject 
 a witness who has released, by deed, all his interest in the 
 suit in which he is called to testify.* Thus a devisee who 
 has released his interest is a competent Avitness for the 
 trustee appointed by the will.^ Such a witness is placed, 
 by the release of his interest, on the same footing with other 
 witnesses, and is not confined to any particular point ; ^ and 
 
 ' Ayres i\ Campbell, 3 Iowa, 582 ; 8 Smith v. Natchez Steamboat Co., 
 
 Robbins v. Butler, 24 111. 387 ; Gilles- 2 Miss. (1 How.) 479. 
 
 pie I,. Gillespie, 2 Bibb (Ky.) 89; « Fairly !■. Pairly, 38 Miss. 280. 
 
 Evans v. Hays, 2 Mo. 97; Patterson ^ Cook u. Grant, 16 S. & R. (Pa.) 198. 
 
 <,. Fay, 1 Phil. (Pa.) 473. " Luytenw. Haygood, 2 Bay (S. C.) 
 
 2 1 Greenl. Ev. (14 ed.) § 426. 177; Carroll v. M'Whorter, Id. 463. 
 
§ 84.] EESTORATIOX TO COMPETENCY. 137 
 
 it is for the jury to judge of the degree of credit to which he 
 is entitled.^ If the action is instituted for the recovery of a 
 jjenalty, the witness becomes competent on releasing his 
 interest in the penalty to the plaintiff.^ A witness legally 
 released is competent, though prior to the trial he had been 
 heard to say that he felt himself bound to re-imburse the 
 plaintiff in case he failed to recover: the moral obligation 
 will not disqualify him.^ And one of several plaintiffs is a 
 competent witness for the defendant, when fully released 
 from all interest and willing to testify, though others object 
 who are interested on the part of the plaintiffs.'* 
 
 § 84. ■Who may give a Release. — Generally, the interest 
 of a witness in a suit may be released by the party proposing 
 to examine him ; ^ but not by the attorney for the party with 
 whom his interest lies, in the absence of special authority in 
 the attorney, from his client, for that purpose.^ The release 
 must be given by the party holding the interest to be re- 
 leased, or his duly authorized agent in that behalf.^ Where 
 several parties hold such interest jointly, a release by one 
 binds all.^ Thus a release by one of several obligees in 
 a bond sued on, or to one of several obligors, will operate 
 as to all;^ and the same is true as to a release by one of 
 two or more partners in a joint adventure,^" or two or more 
 joint proprietors or owners.^^ But a release by one of two 
 or more parties to the record, whose interests are several, 
 will not restore the competency of the witness.^^ 
 
 ' Kinloch v. Palmer, 1 Mill (S. C.) the record. Ingram v. Smith, 1 Head 
 
 Const. 21t). (Tenn.) 411. 
 
 2 City Council v. England, Eiley 8 Haley v. Godfrey, 16 Me. 305. 
 
 (S. C.) 50. 9 Cheetham v. Ward, 1 Bos. & P. 
 
 sStimmel t. Underwood, 3 Gill & 630; Bayley u. Lloyd, 7 Mod. 250; 
 
 J. (Md.) 282. Co. Litt. 232, u. 
 
 * Wills V. Judd, 26 Vt. 617. i" Perlberg v. Gorham, 10 Cal. 120 ; 
 
 6 Richardson v. Carey, 2 Kand. Bulkley v. Dayton, 14 Johns. (N, Y.) 
 
 (Va.) 87. 387. But see Simons v. Smith, Ey. & 
 
 6 McCurdy ,.. Terry, 33 Ga. 49 ; Moo. N. P. 29 ; Cheyne v. Koops, 4 
 
 Murray v. House, 11 Johns. (N. Y.) Esp. 112. 
 
 464; Walker v. Ferrin, 4 Vt. 523. ^^ Whitamore v. Waterhouse, 4 Car. 
 
 'See Pollard ;;. Graves, 23 Pick. &P. 383; Hockless i;. Mitchell, 4 Esp. 
 
 (Mass.) 86; Wise ,;. Patterson, 3 86. 
 
 Greene (Iowa) 471 ; Crocker c. Jew- 12 -ReXts v. Jones, 9 Car. & P. 199. 
 ell, 29 Me. 527. Where releases are And it has heen held that one of sev- 
 necessary to render a witness compe- cral plaintiffs cannot release his co- 
 tent, they are insufficient, unless mov- plaintiffs from liability to costs, so as 
 ing from all the parties interested on to render them disinterested witnesses. 
 
138 COMPETENCY. [CHAP. VII. 
 
 It lias been held, that an assignee for creditors, himself a 
 creditor, could release to the debtor all his interest in the 
 fund, and thus become a competent witness ; ^ and that a 
 husband, sued in ejectment for real estate belonging to his 
 wife, could release a witness objected to as incompetent 
 on the ground of his liability to the wife under a covenant 
 for quiet enjoyment.^ So, also, a remainder-man could release 
 his interest to the owner of the life-estate, and thereby render 
 himself a competent witness for the latter in a suit for injury 
 to the property.^ 
 
 A surety may always release the principal, so as to render 
 the latter a competent witness.* Even an infant may ex- 
 ecute a sufficient release, for it is voidable, not void, and 
 a stranger will not be heard to object to it ; ^ but his guar- 
 dian ad litem or prochein ami cannot, as he has no implied 
 authority so to do.^ 
 
 § 85. When the Court may release. — Where a material 
 witness for a party is a surety on a bond given by such 
 party, the court may, in a proper case, allow another surety 
 to be substituted, so as to render the witness competent 
 So it was held in the case of a surety on a replevin bond, 
 whose testimony was material for the plaintiff,^ and in the 
 case of a defendant's bail.^ But it has been held that such 
 a course should not be taken where the bond was given on 
 appeal, or on the allowance of an injunction, or in an action 
 of detinue, but that the bond should be cancelled and a new 
 one given.i* And the court has discretionary power to per- 
 
 Roselius V. Barrelli, 16 La. Ann. .386. ^ Eraser v. Marsh, 2 Stark. N. P. 
 
 And where a common right of fishery 41 ; Walker v. Ferrin, supra. But see 
 
 existed in all the inhabitants of a Hanly v. Sprague, 20 Me. 431. 
 place, a release, by one of them, of ' Dudley v. Loye, 35 Ga. 148. 
 
 all his interest in the right, to any ^ Brewer v. Murray, 7 Blackf. 
 
 person whatever, was held inoperative (Ind.) 567 ; Bailey v. Bailey, 1 Bing. 92. 
 (such interest being a personal right ' Irwin v. Caryell, 8 Johns. (N. Y.) 
 
 not assignable), and not to render him 407 ; Baillie v. Hale, 1 Moo. & M. 289. 
 
 a competent witness to prove such See supra, § 54. 
 
 common right. Jacobson v. Foun- i" Artzj). Grove, 21 Md. 456 ; Webb 
 
 tain, 2 Johns. (N. Y.) 170. v. Kelly, 37 Ala. 333; s.c, Ala. Sel. 
 
 1 Main u. Newson, Anth. (N. Y.) 11. Cas. 349; Pomeroy v. Avery, 9 Paige 
 
 2 Ford V. Walsworth, 19 Wend. (N. Y.) 591. In Arts v. Grove, supra, 
 (N. Y.) 334. it is said that such a power may be 
 
 ^ Clark V. Southern &c. R. R. Co., very convenient, but it impairs the 
 
 27 Tex. 100. obligation of contracts, and violates 
 
 * Supra, § 74. the organic law. See also Drinkwater 
 
 ■^ Rogers V. Berry, 10 Johns. (N.Y.) !>. Holliday, 11 Ala. 134; Spann v. 
 
 132 ; Walker v. Ferrin, 4 Vt. 523. Brown, Riley (S. C.) 177. 
 
§ 86.] RESTORATION TO COMPETENCY. 139 
 
 mit a party to give a new bond for costs, for the purpose of 
 using the surety in the old one, as a witness, after witnesses 
 have been examined on the trial.^ So, also, the court may 
 suffer the prochein ami of an infant plaintiff to be changed, 
 and the first friend, being thereby released from responsi- 
 bility for costs, is a competent witness for the plaintiff.^ 
 
 But, it would seem, that a commissioner or referee, to 
 whom it is referred to ascertain and state the facts in the 
 case, has not power to discharge one of the defendants and 
 make him a witness for the others.^ And in a criminal case, 
 it has been decided that the court cannot discharge one of 
 the defendants from the indictment, in order to enable him 
 to testify, unless all the following facts concur : viz., a joint 
 indictment, a joint trial, and an application on the part of 
 the district attorney that the defendant be discharged, to be 
 used as a witness for the people, before he has gone into his 
 defence.* 
 
 § 86. Time to execute the Release. — A witness who be- 
 comes interested after the suit is brought, but divests himself 
 thereof before trial, is competent,^ even though he was part- 
 owner of the contract in suit, shortly after it was made, and 
 up to the day of the trial.'' The release may be executed at 
 and during the trial ; ^ and the court cannot refuse to give it 
 full effect because so given.^ If the witness has been 
 examined in chief, before his interest is discovered, it may 
 then be removed by a release, and the witness re-examined;* 
 but in such a case the credibility of the witness will be 
 greatly impaired.^" So, also, an interested witness who has 
 been examined on a former trial, without being released, may 
 be rendered competent on the subsequent trial by a release, 
 
 ' Matthews v. Coalter, 9 Mo. 705. » National &c. Ins. Co. v. Crane, 
 
 2Burksu. Shain,2Bibb(Ky.)341; 16 Md. 260; Tallman v. Butcher, 7 
 
 Helms V. Eranciscus, 2 Bland (Md.) Wend. (N. Y.) 180; Neville v. De- 
 
 544. meritt, 1 Gr. (N. J.) Eq. 321. But it 
 
 8 Dole V. Erskine, 35 N. H. 503. has been held that a release made 
 
 * People V. Bruzzo, 24 Cal. 41. See after the witness' testimony has been 
 
 also supra, §§ 42, 43. given, does not legalize such testi- 
 
 5 Orphan's Court v. Woodburn, 7 mony. Wynn v. Williams, Minor 
 
 Watts & S. (Pa.) 162. (Ala.) 136 ; Ten Eyck v. Bill, 5 Wend. 
 
 8 Moore v. Rich, 12 Vt. 563; (N. Y.)55. Because he was interested 
 
 Fletcher v. Cole, 26 Vt. 170. at the time he testified. Kimball u. 
 
 ' Pegg V. Warford, 7 Md. 582. Gearhart, 12 Cal, 27. 
 
 8 Barnes v. Ball, 1 Mass. 73. i" Steele v. Payne, 2 A. K. Marsh. 
 
 (Ky.) 187; Barnes v. Ball, supra. 
 
140 COMPETENCY. [CHAP. Vn. 
 
 and the objection will only go to his credit.^ Generally- 
 speaking, the release should be given before trial, or at all 
 events, before the testimony is closed ; but where the defen- 
 dant suffered an interested witness to be examined, on the 
 undertaking of plaintiff's attorney to execute a release to him 
 after the trial, and, the plaintiff having obtained a verdict, 
 failed to execute the release, a new trial was refused the 
 defendant, but the witness was allowed his remedy on the 
 undertaking.^ 
 
 § 87. What Interests are, and -what are not removed. — As 
 a general rule, subject to some exceptions to be presently 
 considered, all disqualifying interests may be removed by a 
 proper release ; and this, whether the proposed witness has 
 a sole, individual interest, or is jointly interested with others. 
 Thus, one who is individually interested in a distributive 
 share of a fund sought to be recovered, may, for a nominal 
 consideration, release his interest for the express purpose of 
 becoming a witness.^ And one who is interested as a mem- 
 ber of a firm,* or as a joint-contractor with others,^ or a joint- 
 debtor,^ may be restored to competency by the giving or 
 receiving a release, as the nature of the interest may require. 
 
 But there are some interests which, owing to their pecu- 
 liar character, cannot be reached by a release, though doubt- 
 less removable in some other manner.^ Among these are the 
 right of an inhabitant of a town in common with others ; 
 for a release by him to the other inhabitants will not render 
 him competent to testify for one of them in an action founded 
 on the common right.^ And a legatee, distributee, or heir, 
 who releases his interest in the particular suit or debt sued 
 for, does not become competent, if the proceeds of the re- 
 
 ' Jones V. Eaine, 4 Eand. (Va.) * Linsley v. Lovely, 26 Vt. 123 ; 
 
 386. See also Wake v. Lock, 5 Car. Ward u. Lee, 13 Wend. (N. Y.) 41; 
 
 & P. 454; Doty v. Wilson, 14 Johns. Lefferts v. DeMott, 21 Wend. (N. Y.) 
 
 (N. Y.) 378. 136. 
 
 2 Heming v. English, 1 Cromp. M. '^ Smith v. Allen, 18 Johns. (N. Y.) 
 
 & R. 568. 245 ; Duke v. Pownall, 1 Moo. & Malk. 
 
 » Carter v. Trueman, 7 Pa. St. 315. 430. 
 But a distributee is not made a com- ^ Bagley v. Osborn, 2 Wend. (N. 
 
 patent witness by release of all his Y.) 527. But see Bank of Utica v. 
 
 interest in a particular demand, sought Mersereau, 3 Barb. (N. Y.) Ch. 528. 
 to be recovered by the administrator. " See infra, §§ 89-94. 
 
 Kennedy v. Conn, 3 B. Mon. (Ky.) " Abby v. Goodrich, 3 Day (Conn.) 
 
 321. Compare Dunbar u. Chevalier, 433; Jacobson v. Fountain, 2 Johns. 
 
 28 Miss. 161. (N. Y.) 170. 
 
§ 87.] EESTOEATION TO COMPETENCY. 141 
 
 covery would go to increase the assets of the estate.^ So, 
 also, in an action for land, and damages for its detention, a 
 defendant who has released to his co-defeudants may yet be 
 interested in the damages for the detention, and therefore 
 incompetent.^ And the covenantee in a real covenant, run- 
 ning with tlie land, cannot release the covenantor after he 
 has parted with tlae estate, so as to render liim competent : 
 no one but the present owner can release the covenant.^ 
 Again, a release by an insolvent debtor of his claim to the 
 surplus of his estate does not render him competent in a 
 suit in behalf of the assignee in insolvency, as such.* 
 
 So, also, one of the contestants against a will, who is a 
 party to the suit, and as such liable for costs, is an incompe- 
 tent witness to defeat the probate of the will, even though 
 he should release all his distributive interest in the estate.* 
 And a joint-defendant, upon being released from liability to 
 certain parties, cannot be permitted to testify that a judg- 
 ment is dormant, as the result would be the release of all 
 parties from liability on the judgment, and he would, there- 
 fore, be interested.^ Again, an owner of a vessel at the time 
 of a collision, and when suit was commenced and the boat 
 attached, who sold his interest with the understanding that 
 the purchasers should run the risk of the suit then pending, was 
 held incompetent to testify .'' And on the trial of a sci.fa., on 
 a mechanic's lien filed against a reputed owner and two con- 
 tractors, such owner and one contractor cannot make the 
 other a competent witness by a release, as they have no 
 power to release him from his liability to the plaintiff's 
 costs.^ 
 
 In view of the general abolition of interest in the event, 
 as a disqualification, no further examples of interests, which, 
 at common law, were beyond the reach of a release, need be 
 
 1 Maury v. Mason, 8 Port. (Ala.) * Wilkinson v. Pittsburg Parmers' 
 211 ; Powell v. Powell, 7 Ala. 582. . &c. Turnpike Co., 6 Pa. St. 398 ; 
 See also Montgomery v. Grant, 57 Pa. Bittir v. Keys, 2 Id. 459. Compare 
 St. 243; Rowt v. Kile, Gilm. (Va.) Ferryman n. Steggall, 8 Bing. 369. 
 202. 6 Xaylor v. Kelly, 31 Ala. 59. i 
 
 2 Dearmond v. Dearmond, 10 Ind. " Neal v. Lamar, 18 Ga. 746. 
 
 191. ' Patrick v. The J. Q. Adams, 19 
 
 3 Leighton v. Perkins, 2 N. H. 427 ; Mo. 73. 
 
 Pile t). Benham, 3 Hayw. (Tenn.) 176; « Haworth i-. Wallace, 14 Pa. St. 
 
 Sherwood v. Huhbel, 1 Root (Conn.) 118. 
 
 498. 
 
Ii2 
 
 COMPETENCY. 
 
 [chap. vn. 
 
 given ; but the reader who desires to further investigate the 
 subject is referred to the authorities collated in the note.^ 
 
 § 88. 'What is a Good and SuiScient Release. — It is pretty 
 well settled that a general release of all actions, and causes 
 of action, or of a particular cause of action, which has hap- 
 pened before the time of the release, will discharge the wit- 
 ness from all liability dependent upon the event of the suit 
 in which he is called to testify, touching his conduct in the 
 matters on which the suit is founded.^ Therefore, such a 
 release from the drawer to the acceptor of a bill, was held 
 to render the acceptor a good witness for the drawer, in an 
 action by payee against drawer, the suit being pending when 
 the release was given.^ So, also, the written consent of the 
 counsel for one party that the next friend or surety on appeal 
 
 1 Assignor of subject of suit. Smith 
 V. Newton, 38 111. 230. 
 
 Bankrupt or insolvent. Barnes r. 
 Billington, 1 Wash. (U. S.) 29 ; Glenn 
 V. Van Kapef, 2 Gill & J. (Md.) 132; 
 Steele v. Phoenix Ins. Co., 3 Binn. 
 (Pa.) 306. 
 
 Execution debtor. Gray a. Morey, 
 26 111. 409 ; Knerr v. HofiEman, 65 Pa. 
 St. 126 ; Seymour v. Beach, 4 Vt. 493. 
 
 Grantor or grantee. Paige v. O'Neal, 
 12 Cal. 483 ; Clark v. Johnson, 5 Day 
 (Conn.) 373; Fash v. Blake, 38 111. 
 363; Taylor v. Whiting, 2 B. Mon. 
 (Ky.) 268; Gilbert v. Curtis, 37 Me. 
 45; Fatheree v. Fletcher, 31 Miss. 
 265 ; Cunningham v. Knight, 1 Barb. 
 (N. y.) 399; Falls v. Carpenter, 1 
 Dev. & B. (N. C.) Eq. 237; Buie i'. 
 "VVooten, 7 Jones (N. C.) L. 441. 
 
 Distributee or legatee. Eobinson v. 
 Tipton, 31 Ala. 595; Martin v. 
 Mitchell, 28 Ga. 382; Wampler v. 
 "VVampler, 9 Md. 540. 
 
 Husband or wife. Woods ;;. Wil- 
 liams, 9 Johns. (N. Y.) 123; Mishler. 
 V. Merkle, 10 Pa. St. 509; Sheer v. 
 Austin, 2 Rich. (S. C.) 330. See also 
 infra, Chap. X. 
 
 Landlord or tenant. Vincent w. Huff, 
 4 S. & R. (Pa.) 298. 
 
 Master or crew. The Peytona, 2 
 Curt. (U. S.) 21; Weaver «. Alabama 
 &c. Co., 35 Ala. 176 ; Arnold v. An- 
 derson, 2 Yeates (Pa.) 03. 
 
 Mortgagor. Little v. Riley, 43 N. 
 H. 109 ; McLaren v. Hopkins, 1 Paige 
 (N. Y.) 18 ; Bardwell v. Howe, 1 Clark 
 (N. Y.) 281. 
 
 Parties to negotiable paper. Gould 
 f. Tatum, 21 Ark. 329 ; Pendleton v. 
 Speed, 2 J. J. Marsh. (Ky.) 508; 
 Hankerson v. Emery, 37 Me. 16 ; Pur- 
 vis V. Albritton, 4 Jones (N. C.) L. 
 170; Dogan u. Ashby. 1 Strohh. (S. 
 C.) 433; Shackelford u. Wheeler, 7 
 Tex. 553. 
 
 Partners. LeRoy ;■. Johnson, 2 Pet. 
 (U. S.) 186; Bill v. Porter, 9 Conn. 
 23; Dougherty t). Smith, 4 Mete. (Ky.) 
 279 ; Ehoads v. Armstrong, 41 Pa. St. 
 92. 
 
 Principal or surety. Bank of Lime- 
 stone V. Pcnick, 2 T. B. Mon. (Ky.) 
 98; Church v. Dickinson College, 3 
 Watts & S. (Pa.) 221; Hutchinson?-. 
 Pettes, 18 Vt. 614 ; Austin v. Dorwin, 
 21 Vt. 38. 
 
 Servants. Rich i. Jones, 9 Cusli. 
 (Mass.) 329; Home v. Memphis &c. 
 R. R. Co., 1 Coldw. (Tenn.) 72; 
 Stevens v. Colby, 46 N. H. 163. 
 
 Trustees. AVade v. Lynch, 21 Md. 
 534; Ferridayi'. Selser, 4How. (Miss.) 
 506. 
 
 2 Citizens' Bank v. Nantucket 
 Steamboat Co., 2 Story, 16; Bond v. 
 Carter, 14 Ga. 697. 
 
 8 Scott V. Lifford, 1 Campb. 249, 250 ; 
 Cartwright v. Williams, 2 Stark. 340. 
 
§ 89.] RESTORATION TO COMPETENCY. 143 
 
 of the otlier party, should be examined as Avitnesses, as fully 
 as if not parties, prevents the necessity of a motion for their 
 discharge, to make them witnesses, and precludes any attack 
 upon their credibility as parties.^ And a formal release from 
 any liability over to the party examining the witness, annexed 
 to the interrogatories and transmitted with the commission 
 under which he was examined, is sufficient to remove the 
 objection to his testimony on the score of interest.^ It makes 
 no difference that the release was obtained for the express 
 purpose of restoring the competency of the witness.^ 
 
 Again, a release of a personal warranty is good without 
 registration, on the trial of an ejectment by the vendee.* 
 A covenant not to sue has been held a good release ;^ but a 
 covenant to relieve a co-obligor against a judgment which 
 might be obtained against all the obligors was held not to 
 be;*' and so of an agreement by the plaintiff in a suit on a 
 promissory note against the maker and indorsers, not to 
 take judgment against the last indorser unless he recovered 
 against all.'' The general rule was that to remove the inter- 
 est of the witness, he must be released from all liability for 
 costs, for the money recovered, and from all claims in dis- 
 charge of which the money recovered in the suit would go.^ 
 A writing was necessary, a parol release would not do.^ 
 
 § 89. Assignment or Transfer of Interest. — It was well settled 
 even at common law, that one whose testimony was desired 
 in an action might lawfully transfer all his interest in prop- 
 erty which was about to become the subject of such action 
 for the purpose of making himself a witness ; and, while his 
 
 1 Varner v. Goldsby, 22 Ga. 302. » Wills v. Judd, 26 Vt. 617. Thus 
 
 2 Farwell v. Harris, 12 La. Ann. 50. a witness who had received a release, 
 
 3 Mott V. Small, 20 Wend. (N. Y.) but who, upon being asked if he did 
 212 ; 22 Id. 403. In equity the exam- not expect to pay the judgment and 
 ination of a defendant as a witness, expenses, provided the plaintiff re- 
 by the plaintiff, is an equitable -re- covered, replied, "I certainly do," 
 lease of such defendant, as to the was held incompetent to testify for 
 subject-matter of his testimony, the defendant. Skillenger v. Bolt, 1 
 Lewis V. Owen, 1 Ired. (N. C.) Eq. Conn. 147. See also M'Causland v. 
 290; Burton v. Stamper, G Id. 14. Neal, 3 Stew. & P. (Ala.) 131 ; Towns 
 
 * Pile V. Benham, 3 Hayw. (Tenn.) v. Alford, 2 Ala. 378; Bulkly v. Day- 
 
 176. ton, 14 Johns. (N. Y.) 387; Board- 
 
 ^ Waggenerr. Dyer, 11 Leigh (Va.) man v. Roger, 17 Vt. 589. 
 384. 9 Richardson v. Bartley, 2 B. Mon. 
 
 " Brown w. Johnson, 13 Gratt. (Va.) (Ky.) 328. See also Kennon i. Mc- 
 
 644. Rae, 2 Port. (Ala.) 389. 
 
 ' Hogshead v. Baylor, 16 Gratt. 
 (Va.) 99. 
 
144 COMPETENCY. [CHAP. YIL. 
 
 testimony was to be carefully and perhaps suspiciously scru- 
 tinized, such testimony was still to be judged of by the ordi- 
 nary rules which govern in the law of evidence, and to be 
 credited or discredited accordingly.^ Therefore, a plaintiff 
 in a suit, who had assigned all his interest in the event of it, 
 could be a witness, the costs of the suit having been paid, or 
 such an amount deposited with the proper officer, by the 
 assignee, as would discharge the same.^ If the party had 
 parted with his interest at the time of the trial, he was com- 
 j)etent;2 and the fact that the transfer was without recourse 
 did not alter the case.* An assignment without warranty 
 was deemed as effectual to divest the witness' interest as a 
 formal release of interest would be.^ 
 
 But it was held that one interested in a chose in action at 
 the time of its origin could not, by assigning his interest to 
 a mere volunteer, become a competent witness for the 
 assignee as to matters which preceded the assignment.^ 
 And a merely colorable assignment made for the purpose of 
 enabling a party who should be the plaintiff on the record, 
 to testify, did not divest his interest so as to render the 
 assignor competent.''' 
 
 § 90. Divestment of Interest by Payment. — It was held at 
 a comparatively early period that one who was collaterally 
 interested in the event of a suit, in any given amount, so as 
 to render him incompetent as a witness, could be restored 
 to competency by the payment of th.e amount of his liability.^ 
 Such payment, of course, removed all the interest of the 
 witness. So, where a principal filed a bill to enjoin an action 
 
 ' Tobey u. Leonards, 2 Wall. (U. case of non-payment, was a competent 
 S.) 42.3. witness for the garnishees. Byars v. 
 
 2 Willlngs V. Consequa, Pet. C. Ct. Griffin, 31 Miss. 603. 
 
 301. S. P. Smith v. Bell, 35 Ga. 2.38. ^ Cates v. Wacter, 2 Hill (S. C.) 
 
 But see Clement v. Bixler, 3 Watts 442. See also Patton o. Allison, 7 
 
 (Pa.) 248 ; M'Lughan v. Bovard,4 Id. Humph. (Tenn.) 320. 
 308; Tilley v. State, 21 Tex. 200. ^ Lindsley v.Malone„23 Pa. St. 24. 
 
 3 Central E. R. &c. Co. i-. Hines, ' Phinney v. Tracey, 1 Pa. St. 173 ; 
 19 Ga. 203; Henderson v. Grouse, 7 Leiper v. Peirce, 6 Watts & S. (Pa.) 
 Jones (N. C.) L. 623. 555; Cochran v. M'Teague, 8 Id. 272; 
 
 * Blackerby v. Holton, 5 Dana (Ky ) Gates v. Johnston, 3 Pa. St. 52 ; Jarvis 
 
 520 ; Beaver l: Bearer, 23 Pa. St. 167. o. Barker, 3 Vt. 445. But compare to 
 
 Thus, the principal defendant in a the contrary. Bank of Woodstock u. 
 
 garnishee process, who, before service Clark, 25 Vt. 308. 
 of tlie attachment, assigned the debt * Dearborn v. Dearborn, 10 N. H. 
 
 due from the garnishees, without re- 473. 
 taining any liability to his assignee in 
 
§ 91.] EESTOEATION TO COMPETENCY. 145 
 
 at law against himself and his surety, without the latter's 
 joining him, he could render his surety a competent witness 
 for him by paying all costs of the action at law, and deposit- 
 ing with the surety a sum sufficient to cover any liability in 
 that action.! ^jj^ even corporators could be rendered com- 
 petent for each otlier or the corporation by actual payment 
 of the costs; but, it seems, security or a deposit for their 
 payment would not suffice.^ 
 
 § 91. by Disclaimer of Title. — In New Hampshire, one 
 
 of two defendants in a real action, who filed a disclaimer of 
 title on which the plaintiffs failed to take issue, and who was 
 not shown to be in privity with any other parties or other- 
 wise interested, was held a competent witness for his co- 
 defendant.^ But the contrary was maintained in Pennsyl- 
 vania, even where the costs were paid up to the time of the 
 disclaimer,* and in Texas the same rule prevailed unless the 
 previous costs were paid,'^ but a later decision in that State 
 does not regard a person so disclaiming as thereafter a party, 
 within statutory provisions defining the competency of par- 
 ties to testify.^ For the like reason a party defendant in a 
 suit in equity who" disclaimed all interest in the subjects 
 matter of the suit, and in its result, was held competent to 
 testify for his co-defendant.'' 
 
 § 92. by Judgment for or against the 'Witness. — This 
 
 means of restoring competency, or rather of rendering com- 
 petent as a witness, a party to the suit, has already been 
 treated with considerable fullness in a previous chapter.^ In 
 addition to the cases there cited a few others may be exam- 
 ined to advantage.^ 
 
 ' Williams v. Mitchell, 30 Ala. 299. * Stule «. Lels, 7 Watts (Pa.) 43. 
 
 " Mokelumne &c. Co. v, Woodbury, But see Kirk v. Ewing, 2 Pa. St. 458. 
 14 Cal. 265. In an early Alabama ^ Dikes v. Miller, 24 Tex. 417. 
 
 case it was held that a party could not ^ Markham «. Carothers, 47 Tex. 
 
 divest the interest of a witness who 21. 
 
 would be liable over in the event of ' Smith v. West, 103 111. 332. 
 such party's failure to recover, by * Supra, §§ 38, 39, 42. 
 
 depositing a sum of money sufficient ^ Wilmarth v. Mountford, 4 Wash, 
 
 to cover such liability over with the (XJ. S.) 79; Greenough i,. Shelden, 9 
 
 clerk of the court; but the decision Iowa, 503; Gates v. Gould, Id. 599; 
 
 seems to have turned upon the clerk's Arms v. Stockton, 12 Id. 327 ; Allen v. 
 
 lack of authority to receive money Shelby, 14 B. Mon. (Ky.)320; State 
 
 which might be recovered in a subse- v. Atherton, 40 Mo. 209; Mann v. 
 
 quent action. Ball v. Bank of Ala- Cooper, 1 Barb. (N. Y.) Ch. 185; Mar- 
 
 bama, 8 Ala. 590. shall v. Franklin Bank, 25 Pa. St. 384 ; 
 
 3 Jenness v. Berry, 17 N. H. 549. Delozier v. State, 1 Head (Tenn.) 45. 
 
146 COMPETENCY. [CHAP. VII. 
 
 § 93. Effect cf indemnifying the Witness. — The better 
 opinion, at common law, seems to have been that where an 
 interested witness was fully indemnified against liability, the 
 objection of interest was obviated, and the witness was 
 restored to competency. Thus, a sufficient sum of mone)'- 
 having been placed in his hands to cover his liability for 
 costs or otherwise, the indorser of the writ,^ or the receiptor 
 of property involved in the suit,^ or the surety on the bond 
 of the plaintiff in replevin,^ became a competent witness. 
 So, also, a bond of indemnitj' was held to restore to compe- 
 tency a party liable for the costs of the defence in case the 
 pilaintiff should fail to recover; * and the same was held of a 
 stake-holder who had transferred the subject-matter of the 
 wager after notice from the loser not to do so.^ 
 
 But the decisions upon this subject are not altogether 
 harmonious. Thus, it has been held that a mere offer of 
 indemnity from the consequences of the suit will not render 
 a party to the record a competent witness ; ^ and that a bond 
 of indemnity from a third person will not have that effect 
 with an interested witness.^ So, also, it has been decided 
 that a defendant who conveys the matter in dispute, pen- 
 dente lite, and takes a bond of indemnity for costs from his 
 grantee, does not thereby make himself a competent wit- 
 ness.^ But the weight of authority was in favor of admit- 
 ting a witness thus secured.^ 
 
 § 94. other Modes of restoring Competency. — Where a wit- 
 ness was incompetent because of his being surety on a bond 
 given in the action, he could be rendered a competent wit- 
 ness, either by substituting another surety or by a deposit in 
 court, of a sufficient sum of money-^" Thus, a surety on a 
 
 ^ Beekley v. Preeman, 15 Pick. "^ Josey v. Wilmington &c. R. R. 
 
 (Mass.) 468; Roberts o. Adams, 9 Co., 11 Rich. (S.C.) 399; even though 
 
 Me. 9. it be conditioned to protect the witness 
 
 2 Allen V. Hawks, 13 Pick. (Mass.) from all liability of whatsoever kind. 
 79; Beekley v. Freeman, 15 Id. 468; Molyneaux v. Collier, 30 Ga. 731; 
 Jordan v. Young, 37 Me. 270. Kennedy u. Evans, 31 111. 258; Paine 
 
 3 Hall B.Baylies, 15 Pick. (Mass.) 51. v. Hussey, 17 Me. 274. 
 
 * Lake v. Auborn, 17 Wend. (N. Y.) » Shelby v. Smith, 2 A. K. Marsh. 
 
 18. See also Brandigee o. Hale, 13 (Ky.) 504. 
 
 Johns. (N. Y.) 125. ^ gge cases cited supra. 
 
 '^ Leverett v. Stegall, 23 Ga. 257. i" Klockenbaum v. Pierson, 22 Cal. 
 
 « Eaton V. White, 2 Wis. 292. 160. 
 
§ 95.J RESTORATION TO COMPETENCY. 147 
 
 replevin bond was rendered competent by the substitution of 
 another surety in his stead ;^ and one who had signed a 
 prosecution bond was admitted to testify upon the substitu- 
 tion of a new bond.^ But it would seem that one of two 
 joint-executors, proponents of a will, could not render 
 himself competent to sustain the will, by renouncing his 
 trust.^ 
 
 § 95. Necessity of Seal ; Assent ; Delivery. — (1) Seal. Some 
 of the common-law decisions hold that a technical release of 
 interest must be under seal,* even though such release be in 
 the shape of a receipt in full of all demands on the part of the 
 party calling the witness.^ The entry of the release upon 
 the minutes of the court did not obviate the objection of 
 want of a seal.^ In other cases, however, full effect was 
 given a release which had no seal affixed.'' 
 
 (2) Assent. The witness must have knowledge of the 
 fact that he has been released, before going upon the stand; ^ 
 the mere fact that the release is properly executed will not 
 rehabilitate him in the absence of such knowledge.^ Knowl- 
 edge being necessary, it would naturally follow that the pro- 
 posed witness or the party to whom the release is given must 
 give his assent to it in order to render it effective ; but where 
 the giving of the release is apparently for the advantage of 
 the person to whom it purports to be given, his assent to it 
 will be presumed.!" Pursuant to this rule, an assignment of 
 all his interest in the suit, by the plaintiff of record, who 
 also paid into court all costs present and future, was accepted 
 by the court in the absence of the assignee.^! Indeed, it has 
 been held that a party cannot defeat a release or surrender 
 
 1 Charlesworth v. Williams, 16 111. ' Dunhain v. Branch, 5 Cush. 
 
 338; Gray ti. Morey, 26 111. 409. But (Mass.) 558; Boland v. Greenville, 
 
 see Cummings v. Gann, 52 Pa. St. &c. R. R. Co., 12 Rich. (S. C.) 368. 
 
 484. 8 Seymour v. Strong, 4 Hill (N. Y.) 
 
 ^ Otey u. Hoyt, 3 Jones (N. C.) L. 255; Fitzpatrick v. Baker, 31 Ala. 
 
 407. 563 ; Gray v. Brown, 22 Ala. 262. 
 
 5 Deslonde v. Parrington, 29 Ala. ^ State u. Mosely, 7 Coldw. (Tenn.) 
 
 92. See also supra, § 85. 576. In Georgia, it is held that an 
 
 * The Governor v. Daily, 14 Ala. interested witness cannot be rendered 
 
 469; Smith v. Harris, 3 Sneed (Tenn.) competent by a release unless it was 
 
 553. expressly authorized by him. McCurdy 
 
 s Dennett v. Lamson, 30 Me. 223. v. Terry, 33 Ga. 49. 
 
 5 Kennon v. M'Rae, 2 Port. (Ala.) i" Porter v. Hunger, 22 Vt. 191. 
 
 389. u Smith v. Bell, 35 Ga. 288. 
 
148 COMPETENCr. [chap. VII. 
 
 tendered by a witness on the other side, by refusing his 
 assent thereto.-' 
 
 (3) Delivery. Ordinarily, a personal delivery of the re- 
 lease to the releasee was not essential ;2 a delivery to his 
 attorney,^ or a deposit of it in court,* was sufficient ; but 
 the usual and proper course was to tender the release to the 
 witness before he was sworn in the cause ; ^ the mere filing 
 of it, without any showing that the witness had any notice 
 of it, was not enough.^ But notice being shown, the fact 
 that the release was found on file among the papers in the 
 cause was considered prima facie evidence of its delivery.^ 
 It has been held that a sworn acknowledgment on the part 
 of the witness, that a release had been delivered to him before 
 he was sworn, did not remove a well-founded objection to his 
 competency;^ and that the testimony of an apparently in- 
 terested witness, who had executed a release which was not 
 properly delivered, to the effect that he never had any inter- 
 est in the suit, could not be received to show his compe- 
 tency.^ 
 
 § 96. Proof of Release ; Objections, etc. — It was the proper 
 course to produce the release of an interested witness, and 
 prove its execution, in order that the court might judge of 
 its sufficiency.^" If there was a subscribing witness, proof of 
 its execution by him Avas essential.i^ But a new trial was 
 refused in a case where the witness, being asked whether he 
 was interested in the suit, declared that he had parted with 
 his interest, and, without further question, was allowed to 
 testify in chief, the deed of transfer or release not being 
 exhibited.!^ In such a case, where the party calling the wit- 
 ness is unable to produce the release, parol evidence is 
 admissible to prove it.^^ If the release recites that it was 
 
 ■■ Mathews v. Marchant, 3 Dev. & « Myre v. Ludwig, 1 Pa. St. 47. 
 B. (N. C.) L. 40. 9 Stevenson ■;. Mudgett, 10 N. H. 
 
 2 Brown u. Brown, 5 Ala. 508; Doe 338. 
 
 V. Cassiday, 9 Ind. 63. i» Southard v. Wilson, 21 Me. 494 ; 
 
 3 Stevenson v. Mudgett, 10 N. H. Hobart v. Bartlett, 17 Me. 429. See 
 338; Porter v. Hunger, 22 Vt. 191. also Allen v. Lacy, Dud. (Ga.) 81. 
 
 * Brown v. Brown, supra; Doe v. ^^ Reading v. Metcalf, Hard. (Ky.) 
 
 Cassiday, supra. 535. 
 
 = Delee v. Sandel, 12 La. Ann. 208. i^ Baxter v. Eodman, 3 Pick. (Mass.) 
 
 " Evans v. Pigg, 28 Tex. 586 ; Gray 435. 
 
 V. Brown, 22 Ala. 262. is jgwet v. Worthington, 1 Root 
 
 ' Kyle V. Bostick, 10 Ala. 589. S. (Conn.) 226; Goodrich v. Hanson, 33 
 
 P. Cooper V. Granberry, 33 Miss. 117. 111. 498. 
 
§ 96.] BESTOEATION TO COMPETKNCY. 149 
 
 given in consideration of a sum of money' named therein, it 
 is competent for the other part}"- to ask the witness whether 
 in fact there was any consideration.^ When the release has 
 to be ruled sufficient by the court, there is no error in a 
 refusal to allow the adverse party to introduce other testi- 
 mony, showing an interest in the witness existing prior to 
 the release.^ 
 
 Objections to the want of proof of the execution of the 
 release must be taken at the time it is offered, or such objec- 
 tions will be waived.^ 
 
 1 Johnson v. Murchison, 1 Wins, ceed, and direct that his testimony 
 (N. C.) 292. should be relied on, if the party should 
 
 2 White V. Tucker, 9 Iowa, 100. afterwards give a sufficient release. 
 ' Downey v. Hicks, 14 How. (U. S.) But that where an objection is made 
 
 240; Doe c. Paine, 4 Hawks (N. C.) on account of some informality in the 
 
 64; Rhines v. Baird, 41 Pa. St. 256. release, the judge may allow the ex- 
 
 In an early New York case it is held amination to proceed, while a new re- 
 
 that where an objection js made to lease is preparing, no objection being 
 
 the sufficiency of a release, the judge made by the opposite party. Doty v. 
 
 ought not to allow the witness to pro- Wilson, 14 Johns. (N. Y.) 379. 
 
CHAPTER VIII. 
 
 OPEEATION OF ENABLING STATUTES IN CIVIL CASES. 
 
 §97. 
 
 In General. 
 
 §121. 
 
 Minnesota. 
 
 §98. 
 
 United States Courts. 
 
 § 122. 
 
 Mississippi. 
 
 §99. 
 
 District of Columbia. 
 
 §123. 
 
 Missouri. 
 
 §100. 
 
 Alabama. 
 
 §124. 
 
 Montana. 
 
 §101. 
 
 Arizona. 
 
 §125. 
 
 Nebraska. 
 
 §102. 
 
 Arkansas. 
 
 §126. 
 
 Nevada. 
 
 §103. 
 
 California. 
 
 § 127. 
 
 New Hampshire. 
 
 §104. 
 
 Colorado. 
 
 §128. 
 
 New Jersey. 
 
 §105. 
 
 Connecticut. 
 
 § 129. 
 
 New Mexico. 
 
 §106. 
 
 Dakota. 
 
 §130. 
 
 New York. 
 
 §107. 
 
 Delaware. 
 
 §131. 
 
 North Carolina. 
 
 §108. 
 
 Florida. 
 
 §132. 
 
 Ohio. 
 
 §109. 
 
 Georgia. 
 
 §133. 
 
 Oregon. 
 
 §110. 
 
 Idaho. 
 
 §134. 
 
 tennsylrania. 
 
 §111- 
 
 Illinois. 
 
 § 135. 
 
 Rhode Island. 
 
 §112. 
 
 Indiana. 
 
 §136. 
 
 South Carolina. 
 
 §113. 
 
 Iowa. 
 
 §137. 
 
 Tennessee. 
 
 §114. 
 
 Kansas. 
 
 §138. 
 
 Texas. 
 
 §115. 
 
 Kentucky. 
 
 § 139. 
 
 Utah. 
 
 §116. 
 
 Louisiana. 
 
 §140. 
 
 Vermont. 
 
 §117. 
 
 Maine. 
 
 §ui. 
 
 Virginia. 
 
 §118. 
 
 Maryland. 
 
 §142. 
 
 Washington Territory. 
 
 §119. 
 
 Massachusetts. 
 
 § 143. 
 
 West Virginia. 
 
 §120. 
 
 Michigan. 
 
 §144. 
 
 Wisconsin. 
 
 
 §145. 
 
 Wyoming. 
 
 
 § 97. In General. — Both in England and America the 
 stringent rules of the common law which we have just been 
 examining have been for the most part reversed, the modern 
 doctrine being that parties to the record are not incompe- 
 tent witnesses for that reason, their being parties affecting 
 their credibility only ; and witnesses interested in the event 
 of the suit are also made competent, the objection of interest 
 also going only to the credibility. Indirect interest in the 
 result ceased to disqualify upon the passage of the statute 3 
 & 4 Wm. IV. c. 42, §§ 26, 27, which enactment rendered 
 competent witnesses who, not being parties nor directly 
 interested, were yet incompetent at common law by reason 
 of an indirect interest in the record with regard to some 
 subsequent suit.^ In such cases, the statute provided that a 
 
 1 1 Phil. Ev. 66. 
 
§ 98.] OPEEATION OP ENABLING STATUTES. 151 
 
 verdict or judgment, for or against tlae party for whom the 
 witness should be examined, should not be admissible in 
 evidence, for or against the witness, or any person claiming 
 under him. Next came Lord Denman's act,i which abolished 
 generally, the disqualification of interest, but did not render 
 competent (1) any party to any suit, action, or proceeding, 
 individually named in the record, except (subject to all just 
 exceptions) a defendant in equity; (2) any lessor of the 
 plaintiff in ejectment; (3) any tenant of the premises 
 sought to be recovered in ejectment; (4) the landlord or 
 other person in whose right any defendant in replevin may 
 make cognizance ; (5) any person, in whose immediate and 
 individual behalf any action may be brought or defended, 
 either wholly or in part ; and (6) the husband or wife of 
 any such persons respectively. The first proviso above 
 noted was repealed, subject to certain specified exceptions 
 by 14 & 15 Vict. c. 99, §§ 1, 2, and by 16 and IT Vict. c. 83, 
 husbands and wives are rendered competent, except in cases 
 involving adultery or the disclosure of confidential commu- 
 nications.^ Let us now briefly examine the enabling statutes 
 of the several American jurisdictions, and some of the deci- 
 sions in which they have been construed and applied, confin- 
 ing our attention to the latest expression, of legislative will, 
 as exhibiting the present condition of the law on the subject. 
 § 98. Unitea states Courts. — Congress enacted in 1864 
 " that in the courts of the United States there shall be no 
 exclusion of any witness on account of color, nor in civil 
 actions because he is a party to, or interested in, the issue 
 tried." ^ A subsequent statute passed by the same congress 
 added the following proviso, "that in actions by or against 
 executors, administrators, or guardians, in which judgment 
 may be rendered for or against them, neither party shall be 
 allowed to testify against the other as to any transaction 
 with or statement by the testator, intestate, or ward, unless 
 called to testify thereto by the opposite party, or required to 
 testify thereto by the court." * 
 
 1 6 & 7 Vict. c. 85. « Act approved March 3, 1865. 
 
 2 See infra, Chap. X. Both of these provisions are now in- 
 ' Appropriation act, approved July corporated in the Revised Statutes (2d 
 
 2, 1864, § 3; 13 Stat, at L. 351. ed.) § 858. 
 
162 COMPETENCY. [CHAP. VIII. 
 
 These enactments have been held to apply to actions in 
 ■which the United States is a party, as well as to those 
 between private parties.^ The phrase "civil actions" in 
 these provisions is used in contradistinction to prosecutions 
 for crime; and includes all judicial controversies in which 
 rights of property are involved, whether at law, in chancery, 
 or in admiralty, and whether between private parties or such 
 parties and the government.^ It extends to the trial of a 
 seizure of property for a violation of the internal revenue 
 laws, and of the controversy arising upon a claim interposed 
 thereto by a third party. The claimant in such case is a 
 competent witness in his own behalf.^ So, also, it extends 
 to suits in chancery.* It operates not merely to give a priv- 
 ilege to each ]3arty which may be availed of or not as a mat- 
 ter of choice, but places the parties to a suit (except those 
 named in the proviso) on a footing of equality with other 
 witnesses; i<t makes all admissible to testify for themselves, 
 and all compellable to testify for others.^ But these provi- 
 sions have no application to the courts of a Territory, they 
 not being " courts of the United States." ^ 
 
 As early as the passage of the judiciary act, a witness, 
 competent under the State laws, was also competent in suits 
 at law in the United States courts ; ^ and such has been the 
 rule ever since. But this rule has been held not to apply to 
 criminal cases,^ or to suits in equity,^ though why the latter 
 distinction is taken is not easily seen. 
 
 By special enactments parties claimant or defendant in 
 the Court of Claims are incompetent to support their claims 
 and defences ; ^° but it has been held that the United States 
 could use as a witness, to defeat the claim, one whose interest 
 was adverse to the claimant, although judgment against the 
 claimant might establish his own right to the same claim.^^ 
 
 Under the above act creditors of an estate for whose sole 
 
 1 Green v. United States, 9 "Wall. ' Vance v. Campbell, 1 Black, 427 ; 
 
 655. Haussknecht v. Claypool, Id. 431. 
 
 ^ United States v. Cigars, 1 Woolw. ^ Segee, v. Thomas, 3 Blatchf . 11 ; 
 
 123 ; Rison v. Cribbs, 1 Dill. 181 . United States v. Hawthorne, 1 Dill. 422. 
 
 * United States v. Cigars, supra. ' Segee v. Thomas, supra. 
 
 ■* Risen o. Cribbs, supra. But see ^^ Act of June 25, 1868 (15 Stat, at 
 
 to the contrary, Segee v. Thomas, 3 L. ch. 71); Rev. Stat. § 1079; Hub- 
 
 Blatchf. 11. bell's Case, 4 Ct. of CI. 37. 
 
 s Texas v. Chiles, 21 Wall. 488. " Bradley v. United States, 104 U. 
 
 6 Good V. Martin, 95 U. S. 90. S. 442. 
 
§ 99.] OPERATION OF ENABLING STATUTES. 153 
 
 benefit a suit is prosecuted in that court by the adminis- 
 trator, cannot be witnesses for bim.^ 
 
 Where the suit is against the personal representatives of 
 a deceased person, an ex parte order, obtained by complain- 
 ant before process .issued for his own examination as a wit- 
 ness, does not qualify him as such on the ground that he is 
 required by the court to testify.^ But where the evidence of 
 the deceased is before the jury, the other party should be 
 allowed to testify ; ^ and so should he when the contract in 
 suit was originally made with a person who is living at the 
 time of the trial and competent to testify.* The prohibition 
 extends to the testimony of parties only — persons interested 
 in the issue, but not parties, may testify to statements made 
 by the deceased touching the subject-matter of the contro- 
 versy.^ 
 
 § 99. District of Columbia. — Parties to the suit or pro- 
 ceeding, the persons in whose behalf it is brought or de- 
 fended, and any and all persons interested in the same, are 
 competent and compellable to give evidence, either viva voce 
 or by deposition, on behalf of any or either of the parties : 
 except defendants in criminal cases, and husband and wife, 
 where the issue is a criminal one, or involves the question of 
 adultery, or the inquiry touches a confidential communica- 
 tion.^ 
 
 The provision relating to testimony by parties in actions 
 by and against executors, administrators, and guardians, 
 applies to the courts of this District as fully as to the U. S. 
 Circuit and District courts." 
 
 § 100. Alabama. — " In suits and proceedings before any 
 court or officer, other than criminal cases, there must be no 
 exclusion of any witness because he is a party, or interested 
 in the issue tried, except that neither party shall be allowed 
 to testify against the other, as to any transaction with, or 
 statement by, any deceased person whose estate is interested 
 in the result of such suit, or when such deceased person, at 
 the time of such statement or transaction, acted in any rep- 
 
 1 Henegan v. United States, 17 Ct. ^ i:>otter v. Chicago Bank, 102 U. S. 
 of CI. 155. 163. 
 
 2 Eslara v. Mazange, 1 "Woods, 623. « Act of July 2, 1864, ch. 222. 
 
 8 Mumm V. Owens, 2 Dill. 475. ' Page v. Burnstine, 102 U. S. 604 
 
 < Robinson v. Maudell, 3 Cliff. 169. (Bradley, J., dissenting). S. P. Me- 
 
 guire V. Corwine, 3 MacArth, 81. 
 
154 
 
 COMPETENCY. 
 
 [chap. VIII. 
 
 resentative or fiduciary relation whatsoever to the party 
 against -whom such testimony is sought to be introduced." i 
 
 Under tliis section a party may examine liis adversary as 
 a witness in open court, and is not compelled to file interrog- 
 atories to him, as under the former statute.^ And the hus- 
 band is competent for the Avife's trustee, claiming a promis- 
 sory note under a transfer by the husband, in a contest with 
 his attaching creditor.^ The former requirement of a 
 written statement of what the party proposed to testify,* 
 is repealed by this section so far as it affects the parties 
 rendered competent thereby.^ 
 
 Criminal cases are expressly excepted ; therefore one of 
 two jointly indicted is incompetent for or against the other, 
 unless there be a severance, a nol.pros., or an acquittal: a 
 plea of guilty, without a judgment rendered, will not render 
 him competent.^ 
 
 The provision allowing parties and persons interested to 
 testify is not an ex post facto law. It operates only as a 
 renioval of a present disability, and does not affect any 
 
 ^ Code, 1876, § 3058 (2704), p. 713. 
 
 2 Olive V. Adams, 50 Ala. 373. 
 
 As to the former statutory practice 
 of filing interrogatories, see Jordan v. 
 Jordan, 17 Ala. 466; Colgin v. Red- 
 man, 20 Ala. 650; Pritchett v. Munroe, 
 22 Ala. 501 ; McCargo i,-. Crutcher, 27 
 Ala. 171; Ex parte McLendon, 33Ala. 
 270 ; Saltmarsh v. Bower, 34 Ala. 613 ; 
 Crymes v. White, 37 Ala. 549. 
 
 2 Eowland v. Plummer, 50 Ala. 182. 
 
 4 Rev. Code, § 3218. 
 
 5 Richardson i7. Stovall, 57 Ala. 
 422. 
 
 « Henderson v. State, 70 Ala. 23. 
 But the prosecutor is competent, Bo- 
 liannon v. State, 73 Ala. 47 ; while the 
 defendant, in an action to recover 
 fines and penalties for the violation of 
 a city ordinance, is not. Mobile v. 
 Jones, 42 Ala. 630. 
 
 As to the right of a borrower to 
 establish the defence of usury by his 
 own oath under a statute passed in 
 1819, see Paris v. King, 1 Stew. 255; 
 Watkins v. Watkins, 2 Id. 485; Wil- 
 son V. Walker, 3 Id. 211; Palmer v. 
 Severance, 9 Ala. 751 ; Swinney u. 
 Dorman, 25 Ala, 433. 
 
 Por matters of practice relative to 
 testimony by a plaintiff as to the cor- 
 rectness of the account or demand 
 sued on, under early statutes, and 
 § 2313 of the Code, see Young 'v. 
 M'Lemore, 3 Ala. 295; Bennett c. 
 Armstead, Id. 507 ; Cave v. Burns, 6 
 Ala. 780 ; Ilayden v. Boyd, 8 Ala. 323; 
 Grant v. Cole, 9 Ala. 366 ; Jones c. 
 McLuskey, 10 Ala. 27 ; Yarborough v. 
 Hood, 13 Ala. 176; Jordan v. Owen, 
 27 Ala. 152 ; Waring v. Henry, 30 Ala. 
 721 ; Yonge v. Mobile &c. R. R. Co., 
 31 Ala. 422 ; West v. Brunn, 35 Ala. 
 263; Pitzpatrick v. Hays, 36 Ala. 684. 
 
 Por decisions under § 2302 of the 
 Code, which removes all disability by 
 reason of liability over for costs, etc., 
 see Rupert v. Elston, 35 Ala. 79; Cook 
 i\ Patterson, Id. 102; Hutton v. Wil- 
 liams, Id. 503; Coate v. Coate, 37 Ala. 
 695; s. c, Ala. Sel. Cas. 627. 
 
 As to the examination of parties as 
 witnesses in justice's courts, see Ham- 
 blin c'. McLendon, 37 Ala. 711; Ala- 
 bama &c. R. R. Co. V. Oaks, Id. 694; 
 s. c, Ala. Sel. Cas. 625. The statute 
 said to be repealed, Lemay v. Walker, 
 62 Ala. 39. 
 
§ 100.] OPEEATION OP ENABLING STATUTES. 155 
 
 vested right or impair the obligation of any contract. ^ 
 Thus, in an action against a railroad company, the plaintiff is 
 competent as a witness for himself, although the action was 
 commenced before the passage of the act.^ 
 
 The effect of the exception that where an executor or 
 administrator is a party, neither party shall testify against 
 the other as to any transaction with or statement by the tes- 
 tator or intestate, etc., is not to render a witness incompetent 
 generally, but incompetent only to testify upon the subjects 
 specified.^ But the exception applies to transactions with a 
 deceased administrator or executor in suits by or against his 
 successors in the administration, as well as to those with the 
 decedent himself.* In such a case, however, if the successor 
 in the trust (the defendant) testifies to admissions made by 
 the plaintiff tending to show something done by the de- 
 ceased, the plaintiff may show that the matters he spoke of 
 did not have the effect claimed by the defendant.^ The 
 prohibition extends to beneficiaries in the suit though not 
 parties to the record. Thus a person contracting with the 
 decedent is not, by having transferred his claim to another, 
 rendered competent to prove the contract, in his own behalf, 
 in a suit against the personal representative.^ So, also, a dis- 
 tributee of an estate is within the exception.'' In such a 
 suit, the plaintiff cannot prove a verbal gift by the testator 
 to himself, of the subject-matter of the action.^ 
 
 In suits involving partnership matters more latitude is 
 allowed. Thus a party may testify as to transactions had 
 with a partnership one of the members of which has since 
 died, even though his personal representatives and heirs are 
 parties, provided it does not appear that such transactions 
 were with the deceased partner personally.^ And in an action 
 by or against a surviving partner, a party may testify to a 
 transaction had with the deceased partner.^" 
 
 1 Walthall V. "Walthall, 42 Ala. 450. Louis o. Easton, 50 Ala. 470. Com- 
 
 ' Montgomery &e. R. R. Co. u. Ed- pare Stallings v. Hinson, 49 Ala. 92. 
 
 monds, 41 Ala. 667. ' McCrary v. Rash, 60 Ala. 374. 
 
 8 O'Neal V. Reynolds, 42 Ala. 197 ; 8 stuekey v. Bellah, 41 Ala. 700. 
 
 Ala. Gold Life Ins. Co. ... Sledge, 62 s> Ala. Gold Life Ins. Co. v. Sledge, 
 
 Ala. 566. Compare Thomas v. Thomas, 62 Ala. 566. 
 
 Id. 120. 10 Bradley o. Patton, 51 Ala. 108 ; 
 
 ^ Waldman v. Crommelin, 46 Ala. Bragg u. Clark, 50 Ala. 363. But 
 
 580. compare Causlee v. Wharton, 62 Ala. 
 
 5 Cousins V. Jackson, 52 Ala. 262. 358. 
 
 ^ Drew V. Simmons, 58 Ala. 463; Eor other instances of the applica- 
 
156 COMPETENCY. [CHAP. VIII. 
 
 § 101. Arizona. — " All persons without exception, other- 
 wise than as specified in this chapter, may be witnesses in 
 any action or proceeding. No person offered as a witness 
 shall be excluded by reason of his interest in the event of 
 the action or proceeding ; nor on account of opinions on 
 matters of religious belief." ^ The exceptions are (1) Per- 
 sons of unsound mind at the time of trial; (2) Children 
 under ten who appear incapable ; (3) Indians, or half-breeds, 
 where a white person is a party ; (4) Negroes, or mulattos, 
 under the same circumstances ; (5) Husband or wife, for or 
 against the other; or, without the consent of the other, to 
 disclose "any communication made by one to the other dur- 
 ing the marriage. But this exception shall not apply to an 
 action or proceeding by one against the other." (6) "An 
 attorney or counselor shall not, without the consent of his 
 client, be examined as a witness as to any communication 
 made by the client to him, or his advice given thereon, in 
 the course of professional employment." (7) "A clergy- 
 man or priest shall not, without the consent of the person 
 making the confession, be examined as a witness as to any 
 confession made to him in his professional character, in the 
 course of discipline enjoined by the church to which he 
 belongs." (8) " A licensed physician or surgeon shall not, 
 without the consent of his patient, be examined as a witness 
 as to any information acquired in attending the patient 
 which was necessary to enable him to prescribe or act for 
 the patient." (9) "A public officer shall not be examined 
 as a witness as to communications made to him in official 
 confidence when the public interest would suffer by the 
 disclosure." ^ 
 
 "The judge himself, or any juror, may be called as a wit- 
 ness by either partj' ; but in such case it shall be in the 
 discretion of the court or judge to order the trial to be 
 
 tion of this exception in the statute, ham, Id. 99 ; Dismukes v. Tolson, G7 
 see Weaver v. Morgan, 49 Ala. 142 ; Ala. 386 ; Fort v. Davis, Id. 481 ; Dud- 
 Key V. Jones, 52 Ala. 238 ; Strange v. ley v. Steele, 71 Ala. 423 ; Junkins v. 
 Graham, 56 Ala. 614; Hendricks v. Lovelace, 72 Ala. 303. 
 Kelly, 64 Ala. 388 ; Davis v. Tarver, i Comp. Laws, 1877, p. 469, §§ 393, 
 65 Ala. 98 ; Boykin o. Smith, Id. 294 ; 394. 
 Killen a. Lide, Id. 505 ; Jackson u. 2 §§ 396-401. 
 Clopton, 66 Ala. 29; Beadle v. Gra- 
 
§ 102.] OPEEATIOK OF ENABLING STATUTES. 157 
 
 postponed or suspended, and to take place before another 
 judge or jury." i 
 
 § 102 . Arkansas. — " In the courts of this State there shall 
 he no exclusion of any witness, in civil actions, because he 
 is a party to, or is interested in, the issue to be tried." ^ "All 
 persons, except those enumerated in the next section shall be 
 competent to testify in a civil action." ^ " The following per- 
 sons shall be incompetent to testify : (1) Persons convicted of 
 a capital offense, or of perjury, subornation of perjury, burg- 
 lary, robbery, larceny, receiving stolen goods, forgery, coun- 
 terfeiting or other infamous crime, except by the consent of 
 both parties to the controversy, (2) Infants under the age of 
 ten years, and over that age if incapable of understanding 
 the obligation of an oath, (3) Persons who are of unsound 
 mind at the time of being produced as witnesses, (4) Hus- 
 band and wife, for or against each other, or concerning any 
 communication made by one to the other during the mar- 
 riage, whether called as a witness while that relation sub- 
 sisted, or afterward, (5) An attorney, concerning any com- 
 munication made to him by his client in that relation, or his 
 advice thereon, without the client's consent. (6) In actions 
 by or against executors, administrators or guardians, in which 
 judgment may be rendered for or against them, neither party 
 shall be allowed to testify against the other as to any tran- 
 sactions with, or statements by, the testator, intestate, or 
 ward, unless called to testify thereto by the opposite party, 
 or required to testify by the court." * 
 
 " All other objections to witnesses shall go to their credit 
 alone, and be weighed by the jury or tribunal to which their 
 evidence is offered."^ "No minister of the gospel or priest 
 of any denomination shall be compelled to testify in relation 
 to any confession made to him in his professional character, 
 in the course of discipline enjoined by the rules or practice 
 of such denominations." ^ " No person authorized to prac- 
 tise physic or surgery shall be compelled to disclose any 
 information which he may have acquired from his patient 
 
 1 § 402. But an affidavit of a juror ' § 2481 ; Civ. Code, § 662. 
 cannot be received to impeach liis *§2482; Civ. Code, § 663; Const, 
 verdict. Torque v. Carrillo, 1 Ariz. 336. Art. VII. § 22. 
 
 2 Dig. of Stat. 1874, § 2480 ; Const. 5 § 2488. 
 Art. VII. § 22. 8 § 2484. 
 
158 COMPETENCY. [CHAP. VIII. 
 
 while attending him in a professional character, and which 
 information was necessary to enable him to prescribe as a 
 physician or do any act for him as a surgeon." ^ 
 
 The constitutional provision above quoted, as to transac- 
 tions with, or statements by, deceased persons, was not 
 designed to exclude the testimony of such parties as to all 
 matters in controversy in which the testator or ward had 
 been interested, but only as to such matters as were strictly 
 personal, and in which, from the nature of the case, the 
 privilege of testifying could not be reciprocal and of mutual 
 advantage.^ Thus, it is held that a plaintiff cannot prove 
 by his own testimony the correctness of his account founded 
 on or embodying transactions between him and a deceased 
 person;^ or that the deceased maker of the note sued on 
 (the latter's administrator defending on the ground of a ma- 
 terial alteration in the note) execute'd it just as it appears on 
 the trial.* But where an administrator de bonis non is a 
 party, the other party is not prohibited from testifying as to 
 statements and conversations of the former administrator, 
 who is dead.^ And in suits by the widow and heirs of an 
 intestate, for property descended from him, the defendant is 
 not precluded from testifying to transactions with the intes- 
 tate and statements made by him in regard to the matter in 
 controversy.^ 
 
 § 103. California. — " All persons, without exception, 
 otherwise than is specified in the next two sections, who, 
 having organs of sense, can perceive, and perceiving, can 
 make known their perceptions to others, may be witnesses. 
 Therefore, neither parties nor other persons who have an 
 interest in the event of an action or proceeding are excluded ; 
 nor those who have been convicted of crime ; nor persons on 
 account of their opinions on matters of religious belief ; al- 
 though in every case the credibility of the witness may be 
 drawn in question, as provided in section 1847."^ 
 
 " The following persons cannot be witnesses : — 
 
 ' § 2485. Tor decisions under an * Gist v. Gans, 30 Ark. 285. 
 early statute enabling either party to ^ Wassell v. Armstrong, 35 Ark. 
 
 call the other as a witness, see Dren- 247. 
 
 nen v. Lindsey, 15 Ark. 359; Adkins « Bird v. Jones, 37 Ark. 195. See 
 
 V. Hershy, 17 Ark. 425. also Bozeman o. Browning, 31 Ark. 
 
 » Giles V. Wright, 26 Ark. 476. 364. 
 
 8 Miller v. Jones, 32 Ark. 337. ' Hittel's Code, § 11,879. 
 
§ 103. J OPEKATION OF ENABLING STATUTES. 159 
 
 1. Those who are of unsound mind at the time of their 
 production for examination ; 
 
 2. Children under ten years of age, who appear incapable 
 of receiving just impressions of the facts respecting which 
 they are examined, or of relating them truly ; 
 
 3. Parties to an action or proceeding, or in whose behalf 
 an action or proceeding is prosecuted, against an executor or 
 an administrator, upon a claim or demand against the estate 
 of the deceased." ^ 
 
 " There are particular relations in which it is the policy of 
 the law to encourage confidence and to preserve it inviolate ; 
 therefore, a person cannot be examined as a witness in the 
 following cases : (1) A husband cannot be examined for or 
 against his wife, without her consent, nor a wife for or against 
 her husband, without his consent ; nor can either, during the 
 jnarriage or afterwards, be, without the consent of the other, 
 examined as to any communication made by one to the other 
 during the marriage; but this exception does not apply to a 
 civil action or proceeding by one against the other, nor to a 
 criminal action or proceeding for a crime committed by one 
 against the other ; (2) An attorney cannot, without the 
 consent of his client, be examined as to any communication 
 made by the client to him, or his advice given thereon in the 
 course of professional employment; (3) A clergyman or 
 priest cannot, without the consent of the person making the 
 confession, be examined as to any confession made to him in_ 
 his professional character in the course of discipline enjoined 
 by the church to which he belongs ; (4) A licensed physi- 
 cian or surgeon cannot, without the consent of his patient, 
 be examined in a civil action as to any information acquired 
 in attending the patient which was necessary to enable him 
 to prescribe or act for the patient ; (5) A public officer can- 
 not be examined as to communications made to him in ofBcial 
 confidence, when the public interests would suffer by the 
 disclosure." ^ 
 
 1 § 11,880. Buckley v. Manife, Id. 441 ; Tomlinson 
 
 2 § 11,881. V. Spencer, 5 Id. 291 ; Turner v. Mc- 
 For decisions under earlier statutes Ilhaney, 8 Id. 575 ; Columbus Co. v. 
 
 in California, including the " Practice Dayton Co., 18 Id. 615 ; Bond v. Dorn, 
 
 Act" so called, see Dwindle v. Henri- 22 Id. 113; Bradley v. Kent, Id. 169; 
 
 quez, 1 Cal. 387 ; Johnson v. Carry, 2 Leet v. Wilson, 24 Cal. 398 ; Peterie 
 
 Cal. 33 ; Sparks v. Kohler, 3 Id. 299 ; i . Bugbey, Id. 419 ; Hall v, The Emily 
 
160 COIVIPBTENCY. [CHAP. VIII, 
 
 In the statute 1 prohibiting a party from being a witness 
 where the opposite party is the representative of a deceased 
 person, the word " representative " was held to apply to the 
 executor or administrator of the deceased person, and also to 
 the party who has succeeded to the right of the deceased, 
 whether by purchase, or descent, or operation of law.^ That 
 statute covered all cases coming within its general terms, 
 and made no distinction depending on privity or connection 
 between the parties.^ Even nominal parties, having no 
 interest adverse to the estate, were excluded.* 
 
 But it has been held that this restrictive provision, as it 
 exists in the present code, is not to be construed as prohibit- 
 ing an executor or administrator from calling a party to the 
 action to testify in leTialf of the estate.^ Nor does it prohibit 
 one against whom an action is prosecuted by an executor on 
 a claim in favor of an estate from being a witness in his own 
 behalf.^ And an application for a family allowance is held 
 not to be within the provision, not being an " action or pro- 
 ceeding " on a " claim or demand " against the deceased^ 
 
 § 104. Colorado. — The provisions sweeping away the in- 
 competency of parties and persons interested in civil actions, 
 where the estate of a deceased person is not concerned, are 
 so similar to those we have already considered as not to war- 
 rant repetition here.^ But where one of the parties " sues or 
 defends as the trustee or conservator of an idiot, lunatic or 
 distracted person, or as the executor or administrator, heir, 
 legatee or devisee of any deceased person, or as guardian or 
 trustee of any such heir, legatee or devisee," the other parties, 
 and all persons directly interested in the event, are prohibited 
 from testifying in the action or proceeding, " unless when 
 called as a witness by such adverse party so suing or defend- 
 ing ; and also, except in the following cases, namely : (1) In 
 
 Banning, 33 Id. 522 ; Jones v. Love, 9 ^ Davis v. Davis, 26 Cal. 23. 
 Id. 68 ; Drake v. Eakin, 10 Id. 312 ; s Satterlee v. Bliss, 36 Cal. 489. 
 
 Tuolumne &c. Co. v. Columbia &c. ^ Blood v. Fairbanks, 50 Cal. 420. 
 Co., Id. 395. 6 Chase v. Evoy, 51 Cal. 618. 
 
 As to the competency of Indians, ^ Sedgwick v. Sedgwick, 52 Cal. 
 
 negroes, and Chinamen, see supra, 336. 
 
 §§ 22-24 ; also People v. Hall, 4 Cal. ' Re McCausland's Estate, 52 Cal. 
 
 399 ; People v, Washington, 36 Id. 568. See also, generally. Laws of 
 
 658. 1861, pp. 521, 522. 
 
 1 Which was repealed and replaced ^ gee Gen. Stat. 1883, § 3640. 
 by § 11,880. 
 
§ 104.J OPERATION OF ENABLING STATUTES. 161 
 
 any such action, suit or proceeding, a party or interested 
 person may testily to facts occurring after tlie deatli of sucli 
 deceased person ; (2) When in such action, suit or proceed- 
 ing, any agent of any deceased person shall, in behalf of any 
 person or persons suing or being sued, in either of the capaci- 
 ties above named, testify to any conversation or transaction 
 between such agent and the opposite party or parties in inter- 
 est, such party or parties in interest may testify concerning the 
 same conversation or transaction; (3) When in any such 
 action, suit or proceeding, any such party suing or defending 
 as aforesaid, or any person having a direct interest in the 
 event of such action, sxiit or proceeding, sliall testify in 
 behalf of such party so suing or defending, to any conversa- 
 tion or transaction with the opposite party or parties in 
 interest, then such opposite party in interest shall also be 
 permitted to testify as to the same conversation or transac- 
 tion ; (4) When in any snch action, suit or proceeding, any 
 witness not a party to the record, or not a party in interest, 
 or not an agent of such deceased person, shall in behalf of 
 any party to such action, suit or proceeding, testify to any 
 conversation or admission by any adverse party or parties in 
 interest, occurring before the death and in the absence of 
 such deceased person, such adverse party or parties in inter- 
 est may also testify to the same admission or conversation ; 
 (5) When in any such action, suit or proceeding, the deposi- 
 tion of such deceased person shall be read in evidence at the 
 trial, any adverse party or parties in interest may testify as 
 to all matters and things testified to in such deposition by 
 such deceased person, and not excluded for irrelevancy or 
 incompetency." ^ 
 
 " When m a civil action, suit or proceeding, the claim or 
 defence is founded on a book account, any party or interested 
 person may testify to his account book, and the items therein 
 contained ; that the same is a book of original entries, and 
 that the entries therein were made by himself, and are true 
 and just, or that the same were made by a deceased person, 
 or by a disinterested person, a non-resident person in the 
 usual course of trade, and of his duty or employment to the 
 party so testifying; and thereupon the said account book 
 and entries shall be admitted as evidence in the case."^ 
 1 Gen. Stat. 1883, § 3641. 2 § 3642. 
 
162 COMPETENCY. [CHAP. TIU. 
 
 " That in any action, suit or proceeding, by or agajinst any 
 surviving partner or partners, joint contractor or contractors, 
 no adverse part}' or person adversely interested in the event 
 thereof, shall by virtue of section one of this act, be rendered 
 a competent vi^itness to testify to any admission or conversa- 
 tion by any deceased partner or joint contractor, unless some 
 one or more of the surviving partners or joint contractors 
 were also present at the time of such admission or conversa- 
 tion."! 
 
 " That in any civil action, suit or proceeding, no person 
 who would, if a party thereto, be incompetent to testify 
 therein under the provisions of section two or section tlxcee, 
 -shall become competent by reason of any assignment or re- 
 lease of his claim made for the purpose of allowing such 
 person to testify."^ 
 
 " That nothing in this act contained shall in any manner 
 affect the laws now existing relating to the settlement of 
 estates of deceased persons, infants, idiots, lunatics, distracted 
 persons, or to the acknowledgment or proof of deeds and 
 other conveyances relating to real estate, in order to entitle 
 the same to be recorded ; or as to the attestation of the exe- 
 cution of the last wills and testaments, or of any other instru- 
 ment required by law to be attested." ^ 
 
 " No person shall be deemed incompetent to testify as a 
 witness on account of his or her opinion in relation to the 
 Supreme Being or a future state of rewards and punish- 
 ments ; nor shall any witness be questioned in regard to his 
 or her religious opinions."* 
 
 Under the provision first above quoted,^ it is held that a 
 widow suing her husband's administrator cannot testify that 
 property sold by her husband in his lifetime, in fact belonged 
 to her, and that her consent to the sale was on condition that 
 the proceeds be invested in her name ; there being nothing 
 in the statutes relating to husband and wife bearing upon or 
 modifying the rule in such cases.^ 
 
 § 105. Connecticut. — " No person who believes in the 
 
 1 § 3643. defendant competent for his co-de- 
 
 = § 3644. fendant, see Good v. Martin, 2 Col. T. 
 
 « § 3645. 218. 
 * § 3646. For the effect of a judg- ° § 3641. 
 ment by default to render the defaulted ^ Palmer v. Hanna, 6 Col. 55. 
 
§ 106.] OPERATION OF ENABLING STATUTES. 163 
 
 existence of a Supreme Being shall, on account of his relig- 
 ious opinions, be adjudged an incompetent witness." ^ 
 
 " No person shall be disqualified as a witness in any action 
 by reason of his interest in the event of the same, as a party 
 or otherwise, or of his conviction of a crime ; but such interest 
 or conviction may be shown for the purpose of affecting his 
 credit." 2 
 
 " Any party to a civil action may compel any adverse 
 party, or any person for whose immediate and adverse benefit 
 such action or proceeding is instituted, prosecuted, or de- 
 fended, to testify as a witness in his behalf, in the same 
 manner and subject to the same rules as other witnesses; 
 but no party shall be allowed to compel an answer to a bill 
 or motion for a discovery from an adverse party, and also to 
 compel him to testify." ^ 
 
 " Nothing in the two preceding sections contained shall in 
 any manner affect the law relating to the attestation of any 
 instrument required by law to be attested by subscribing 
 witnesses."* 
 
 " When the plaintiff in a bill in equity shall require of the 
 defendant a discovery on oath, respecting the matters charged 
 in the bill, the disclosure by the defendant shall not be 
 deemed conclusive, but may be contradicted, like any other 
 testimony, according to the practice in equity."^ 
 
 § 106. Dakota. — " No person as a witness in any action or 
 special proceeding, in any court, or before any officer or per- 
 son having authority to examine witnesses or hear evidence, 
 shall be excluded or excused, by reason of such person's 
 interest in the event of the action or special proceeding ; or 
 because such person is a party thereto ; or because such per- 
 son is the husband or wife of a party thereto, or of any per- 
 son in whose behalf such action or special proceeding is 
 brought, prosecuted, opposed or defended, except as herein- 
 
 ' Gen. Stat. 1875, ch. 11, § 35, p. and persons interested are just as com- 
 
 440. petent as distinterested persons ; their 
 
 " /AiW. § 36. This is substantially interest affecting their credibility only, 
 
 the first portion of Kev. 1866, § 176, Cowles v. Bacon, 21 Conn. 451. 
 
 under which former provision it was ^ Ibid. § 37, which replaces Kev. 
 
 held that a wife could be a witness 1866, § 177, as to which see Bucking- 
 
 for her husband. Stanton v. Wilson, ham v. Barnum, 80 Conn. 858. 
 
 3 Day, 57 ; Merriam v. H. & N. H. R. ■• Ibid. § 38. 
 
 E. Co., 20 Conn. 354 ; and that parties ^ /jj^, § 39. 
 
184 COMPETENCY. [CHAP. VIH. 
 
 after provided: (1) A husband cannot be examined for or 
 against his wife, without her consent, nor can either, during 
 the marriage or afterwards, be, without the consent of the 
 other, examined' as to any communication made by one to, 
 the other during the marriage ; but this section does not 
 apply to a civil action or proceeding by one against the other, 
 nor to a criminal action or proceeding for a crime committed 
 by one against the other; (2) In civil actions or proceedings 
 by or against executors, administrators, heirs at laAV, or next 
 of kin, in which judgment may be rendered, or order entered, 
 for or against them, neither party shall be allowed to testify 
 against. the other, as to any transaction whatever with, or 
 statement by, the testator or intestate, unless called to testify 
 thereto by the opposite party. But if the testimony of a 
 partj' to the action or proceeding has been taken, and he 
 shall afterwards die, and after his death the testimony so 
 taken shall be used upon any trial or hearing in behalf of his 
 executors, administrators, heirs at law, or next of kin, then 
 the other party shall be a competent witness, as to any and 
 all matters to which the testimony so taken relates." ^ 
 
 § 107. Delaware. — "That a party to the record in any 
 action or judicial proceeding, or a person for whose imme- 
 diate benefit such proceeding is prosecuted or defended, may 
 be examined as if under cross-examination, at the instance of 
 the adverse party, or any of them, and for that purpose may 
 be compelled in the same manner, and subject to the same 
 rules of examination, as any other witness to testify; but 
 the party calling for such examination shall not be excluded 
 thereby, but may rebut his testimony by other evidence."^ 
 
 "That a party proposing to examine a party adverse in 
 interest may have the same process and means of compelling 
 attendance and response as the law provides in the case of 
 ordinary witnesses."^ 
 
 "That no person shall be excluded from testifying as a 
 witness by reason of his having been convicted of a felony, 
 but evidence of the fact may be given to affect his credi- 
 bility."* 
 
 § 108. Florida. — "No person offered as a witness in any 
 court, or before any officer acting judicially, shall be excluded 
 
 1 Rev. Code, 1877, p. 590, § 446. » Ibid. § 2. 
 
 2 Rev. Code, 1874, p. 652, § 1. « Ibid. § 8. 
 
§ 1C9.] OPEKATIOK OF ENABLING STATUTES. 165 
 
 by reason of his interest in the event of the action or pro- 
 ceeding, or because he is a party thereto : Provided, however. 
 That no party to such action or proceeding, nor any person 
 interested in the event tliereof, nor any person from, through, 
 or under whom any such party or interested person derives 
 any interest or title by assignment or otherwise, shall be 
 examined as a witness in regard to any transaction or com- 
 munication between such witness and the person at the time 
 of such examination, deceased, insane, or lunatic, against the 
 executor, administrator, heir at law, next of kin, assignee, 
 legatee, devisee, or survivor of such deceased person, or the 
 assignee or committee of such insane person or lunatic ; but 
 this prohibition shall not extend to any transaction or com- 
 munication as to which any such executor, administrator, 
 heir at law, next of kin, assignee, legatee, devisee, survivor, 
 or committeeman shall be examined on his own behalf, or as 
 to which the testimony of such deceased person or lunatic 
 shall be given in evidence." ^ 
 
 " No person shall be excluded from being a witness or 
 from giving evidence either in person or by deposition in any 
 suit or proceeding, civil or criminal, in any court or before 
 an}^ jury by reason of having been convicted of any criminal 
 offence, except the crimes of murder, perjury, piracy, forgerj', 
 larceny, robbery, arson, sodomy or buggery ; but every such 
 person shall be admitted to be sworn as a witness, and testi- 
 mony of his or her general character and the record of such 
 conviction may be given in evidence to effect his or her credi- 
 bility with the jury, who shall judge thereof." ^ 
 
 § 109. Georgia. — "No person offered as a witness shall be 
 excluded by reason of incapacity for crime or interest or from 
 being a party, from giving evidence either in person or by 
 deposition, according to the practice of the Court, on the 
 trial of any issue joined, or of any matter or question, or on 
 any inquiry arising in any suit, action, or proceeding, civil or 
 criminal, in any court or before any judge, jury, sheriff, cor- 
 oner, magistrate, officer, or party, having by law or consent 
 of parties, authority to hear, receive, and examine evidence ; 
 
 1 Dig. Laws (McClellan'e Ed. 1881), ments, see Tunno v. Robert, IG Fin. 
 p. 518, § 24. 738 ; Robinson v. Dibble, 17 Fla. 457 ; 
 
 2 § 7, cli. 202, p. 991. Raulerson o. Rocker, Id. 809; Sar.- 
 Por decisions under these enact- derson v. Sanderson, Id. 820. 
 
166 COMPETENCY. [CHAP. VIIL 
 
 but every person so offered shall be competent, and compel- 
 lable to give evidence on behalf of either or anj' of the 
 parties to the said suit, action, or other proceeding, except as 
 follows : (1) Where one of the original parties to the contract 
 or cause of action in issue or on trial, is dead, or is shown to 
 the court to be insane, or where an executor or administrator 
 is a party in any suit on a contract of his testator or intestate, 
 the other party shall not be admitted to testify in his own 
 favor; (2) No person, who in any criminal proceeding is 
 charged with the commission of any indictable offense, or 
 any offense punishable on summary conviction, is competent 
 or compellable to give evidence for or against himself or her- 
 self; (3) No person shall be compellable to answer any 
 question tending to criminate himself or herself; (4) No 
 husband shall be competent or compellable to give evidence 
 for or against his wife in any criminal proceeding; nor shall 
 any wife, in any criminal proceeding, be competent or com- 
 pellable to give evidence for or against her husband. But 
 the wife shall be competent, but not compellable, to testify 
 against her husband, upon his trial for any criminal offense 
 committed, or attempted to have been committed, upon the 
 person of the wife ; (5) No attorney shall be compellable to 
 give evidence for or against his client."^ 
 
 " Nothing contained in the preceding section shall apply 
 to any action, suit, or proceeding, or bill, in any court of 
 law or equity, instituted in consequence of adultery, or to 
 anj"- action for breach of promise of marriage." ^ 
 
 " Persons who have not the use of reason, as idiots, luna- 
 tics during lunacy, and children who do not understand the 
 nature of an oath, are incompetent witnesses."^ 
 
 " Drunkenness, which dethrones reason and memory, inca- 
 pacitates during its continuance." * 
 
 " No physical defects in any of the senses incapacitates a 
 witness. An interpreter may explain his evidence."^ 
 
 " The court must, by examination, decide upon the capacity 
 of one alleged to be incompetent from idiocy, lunacy or 
 insanity, or drunkenness, or childhood."^ 
 
 " The objection to competency, if known, must be taken 
 
 1 Code, 1882, p. 1002, § 3854. < § 3857. 
 
 2 § 3855. 6 § 3858. 
 8 § 3856. 6 I 3859. 
 
§ 109.J OPBEATION OF ENABLING STATUTES. 1G7 
 
 before the witness is examined at all. It may be proved by 
 the witness himself, or by other testimony; if proved by 
 other testimony, the witness is incompetent to explain it 
 away."i 
 
 "Any act which, in the judgment of the court, removes 
 the ground of incompetency, will restore the competency of 
 the witness."^ 
 
 Under section 3855 above quoted, a woman cannot be 
 received as a witness, in her own behalf, to prove a contract 
 by a married man, that, in consideration of her consent to 
 sexual intercourse, he will make a certain provision for her, 
 in the event of pregnancy. This is a suit instituted in con- 
 sequence of adultery, within the section.^ 
 
 The proper construction of the first exception in section 
 3854 has been held to be that the parties must have been on 
 different sides of the contract, or cause of action, or must be 
 parties with conflicting interests in the issue on trial, to 
 exclude the survivor as a witness on the death of one of the 
 parties.* Where the suit is against administrators, the plain- 
 tiff is incompetent, even though he negotiated and contracted 
 with one of the administrators who was acting as the agent 
 of the intestate, then living.^ In such a case the plaintiff 
 cannot testify as to whether or not the deceased fulfilled his 
 contract.^ Thus, a devisee cannot testify that the testator 
 made her a parol gift of the land devised.^ Nor can a plain- 
 tiff deny the genuineness of letters addressed to the de- 
 fendant's intestate, wliich purport to be in the plaintiff's 
 handwriting.^ 
 
 On the other hand, there are many eases in which a 
 party may testify even though the opposite party is dead : 
 such is the case in controversies arising under the ordinances 
 of 1865, for the adjustment of Confederate contracts ; " in 
 cases where a third party interposes a claim to property 
 
 1 § 3860. 8 jord v. Holmes, 61 Ga. 419. See 
 
 2 § 3861. also, for further applications of the 
 ' Sloan V. Briant, 56 Ga. 59. rule of exclusion, Gray v. Obear, 54 
 * Perry v. Hodnett, 38 Ga. 103. Ga. 231 ; Virgin v. Wingfleld, 56 Ga. 
 
 5 Whitaker v. Groover, 54 Ga. 174. 474; Central K. R. &c. Co. v. Papot, 
 S. P. Freeman v. Bigham, 65 Ga. 580. 59 Ga. 342 ; Oatis v. Harrison, 60 Ga. 
 
 6 Hays V. Callaway, 58 Ga. 288. 535; Muller v. Rhuman, 62 Ga. .332. 
 ' Bothwell ^. Dobbs, 59 Ga. 789. » Home ::. Goung, 40 Ga. 193. 
 
 S. P. Gabbett v. Sparks, 60 Ga. 582. 
 
168 C03IPETENCY. [chap. VIII. 
 
 levied on by execution;-' in an action to reform a deed on 
 tlie ground of mistake ; ^ or where tlie party merely seeks to 
 indentify a book of accounts, sought to be introduced by 
 ]iim, as liis book of original entries.^ Again, an agent, not a 
 party to the suit, is competent to show the agency, not dis- 
 closed at the time of the transaction in controversy, although 
 his principal is dead, and although the effect of establishing 
 the agency may be to make the estate of the principal liable 
 instead of the agent individually.* And where an executor 
 is plaintiff, the defendant may testify as to all relevant con- 
 versations between himself and the living parties with whom 
 it was had, though one of the parties, executor's testator, is 
 dead.^ So, also, where the heirs at law of the deceased party, 
 they being the real defendants in interest, have testified as to 
 interviews between the intestate and the plaintiff, the plain- 
 tiff may testify in rebuttal of their testimony.*' And where 
 the testimony of the deceased on a former trial, or his deposi- 
 tion, is introduced, this renders the opposite party competent 
 as a witness ;'^ and the same is true where the deposition is 
 in court and can be used.^ 
 
 Below will be found cases illustrating the above principles 
 where the cause of action was founded upon a bill of ex- 
 change or promissory note ; ^ where the suit was by dr against 
 a surviving partner ; i" and where the proposed witness was 
 
 ^ Anderson v. Wilson, 45 Ga. 25 ; issues in the case. Perry v. Mulligan, 
 
 Sterling v. Arnold, 54 Ga. 690. 58 Ga. 479. 
 
 2 Payne i;. Elyea, 50 Ga. 395. ' Monroe v. Napier, 52 Ga. .385. 
 
 8 Strickland v. Wynn, 51 Ga. 600. 8 Allen v. Morgan, 61 Ga. 107. But 
 
 * Lowrys u. Candler, 04 Ga. 23(3. see to the contrary, HoUis v. Calhoun, 
 
 6 Clark V. Bell, 61 Ga. 147. 54 Ga. 115. See also Outz v. Sea- 
 
 " Parkerson v. Burke, 59 Ga. 100. brook, 47 Ga. 359 ; North Ga. Mining 
 
 If one of the parties be offered as a Co. v. Latimer, 51 Ga. 47; Sheibley 
 
 witness by the other side, and be ex- v. Hill, 57 Ga. 232 ; Davis u. McLester, 
 
 amined only in respect to matters 65 Ga. 132 ; Allen v. Davis, 65 Ga. 
 
 which did not transpire between the 179; Kilpatrick u. Strozier, 67 Ga. 
 
 witness and the deceased, while the 247 ; Turner v. Jordan, Id. 604. 
 
 cross-examination should be full in ^ Archer v. Greer, 36 Ga. 107 ; 
 
 respect to the matters so inquired Rawson v. Poindexter, 44 Ga. 73 ; 
 
 about on the direct examination, it Dixon w. Edwards, 48 Ga. 142; Wright 
 
 should not operate as a license to the v. Bessman, 55 Ga. 187; Dobson v. 
 
 party examined to testify to transac- Dickson, 62 Ga. 639 ; Lemon v. 
 
 lions which took place between him Hornsby, 63 Ga. 271 ; Rush v. Ross, 
 
 and deceased, such as delivery of 65 Ga. 144. 
 
 property, and payment of money, to i" Leaptrot v. Robertson, 37 Ga. 
 
 deceased in compliance with an award, 586 ; Moore v. Harlan, Id. 623 ; Long 
 
 the delivery and payment being vital v. McDonald, 39 Ga. 186; Graham v. 
 
§ lll.J OPERATION OF ENABLING STATUTES. 169 
 
 the personal representative of the deceased,^ or his 
 widow.^ 
 
 § 110, Idaho. — In this territory all persons capable of per- 
 ception and communication of ideas are competent witnesses, 
 whether parties or interested in the event or not. But per- 
 sonsinsane " at the time of their production for examination," 
 children under ten who appear incapable, parties in actions 
 against personal representatives, husband and wife, attorneys, 
 clergymen, physicians, and public officers, are excluded in 
 certain cases ; and judges and jurors are competent on being 
 superseded in their offices for the time being.^ 
 
 § 111. Illinois. — " That no person shall be disqualified as 
 a witness in any civil action, suit, or proceeding, except as 
 hereinafter stated, by reason of his or her interest in the 
 event thereof, as a party or otherwise, or by reason of his or 
 her conviction of any crime; but such interest or conviction 
 may be shown for the purpose of affecting^ the credibility of 
 such witness ; and the fact of such conviction may be proven 
 like any fact not of record, either by the witness himself 
 (who shall be compelled to testify thereto) or by any other 
 witness cognizant of such conviction, as impeaching testi- 
 mony, or by any other competent evidence."* 
 
 " No party to any civil action, suit, or proceeding, or per- 
 son directly interested in the event thereof, shall be allowed 
 to testify therein of his own motion, or in his own behalf, by 
 virtue of the foregoing section, when any adverse party sues 
 
 Howell, 50 Ga. 203 ; Bryan v. Tooke, As to the practice of submitting 
 
 60 Ga. 437 ; Hammond v. Drew, 61 interrogatories to an adverse party, 
 
 Ga. 189; Ford u. Kennedy, 64 Ga. under the acts of 1847 and 1850, to 
 
 537 ; Southwestern E. K. Co. v. Papot, compel discoveries at law, see Zeigler 
 
 67 Ga. 675. v. Scott, 10 Ga. 389; Tillinghast v. 
 
 ' Crenshaw v. Eobinson, 37 Ga. Nourse, 14 Ga. 641 ; Thornton v. Ad- 
 
 118; Mclntyre v. Meldrim, 40 Ga. kins, 19 Ga. 464; Bridges u. Nicholson, 
 
 490; McGehee v. Jones, 41 Ga. 123; 20 Ga. 90; Roberts v. Keaton, 21 Ga. 
 
 Harris i: Harris, 53 Ga. 678 ; Wil- 180 ; Wood v. McGuire, Id. 576 ; Ste- 
 
 liams V. McDowell, 54 Ga. 222; Stan- yens i'. Zachary, 27 Ga. 427; Dyson 
 
 ford V. Murphy, 63 Ga. 410. v. Beckam, 35 Ga. 132. 
 
 2 Adams v. Jones, 39 Ga. 479 ; As to the right, under the common- 
 Jackson !>. Jackson, 40 Ga. 150 ; Wil- law practice, of a party to prove his 
 lingham v. Smith, 48 Ga. 580 ; Wagner account or set-off by his own oath, see 
 (/. Eobinson, 56 Ga. 47. Blake i-. Freeman, 13 Ga. 215 ; Nichols 
 
 For decisions under earlier statutes ,,■. McAbee, 30 Ga. 8. 
 
 authorizing a party to testify on the ^ Code, Civ. Pro. 1881, §§ 897-900. 
 
 question of usury, see Persons r. * Rev. Stat. 1880, p. 505, § 1. 
 Hight, 4 Ga. 474; Wright v. Lawson, 
 13 Ga. 459. 
 
170 COMPETENCY. [CHAP. VIII. 
 
 or defends as the trustee or conservator of any idiot, habitual 
 drunkard, lunatic or distracted person, or as the executor, 
 administrator, heir, legatee or devisee of any deceased person, 
 or as guardian or trustee of anj such heir, legatee or devisee, 
 unless when called as a witness by such adverse party so 
 suing or defending, and also except in the following cases, 
 namely : (1) In any such action, suit, or proceeding, a party 
 or interested person may testify to facts occurring after the 
 death of such deceased person, or after the ward, heir, legatee 
 or devisee shall have attained his or her majority ; (2) When, 
 in such action, suit, or proceeding, any agent of anj' deceased 
 person shall, in behalf of any person or persons suing or being 
 sued in either of the capacities above named, testify to any 
 conversation or transaction between such agent and the oppo- 
 site party or party in interest, such opposite party or party 
 in interest may testify concerning the same conversation or 
 transaction ; (3) Where, in any such action, suit or proceed- 
 ing, any such party suing or defending, as aforesaid, or any 
 persons having a direct interest in the event of such action, 
 suit or proceeding, shall testify in behalf of such party so 
 suing or defending, to any conversation or transaction with 
 the opposite party or party in interest, then such opposite 
 party or party in interest shall also be permitted to testify 
 as to the same conversation or transaction ; (4) Where, in 
 any such action, suit or proceeding, any witness, not a party 
 to the record, or not a party in interest, or not an agent of 
 such deceased person, shall, in behalf of any party to such 
 action, suit or proceeding, testify to any conversation or 
 admission by any adverse party or party in interest, occur- 
 ring before the death and in the absence of such deceased 
 person, such adverse party or party in interest may also tes- 
 tify as to the same admission or conversation ; (5) When 
 in any such action, suit or proceeding, the deposition of 
 such deceased person shall be read in evidence at the trial, 
 any adverse party or party in interest may testify as to all 
 matters and things testified to in such deposition by such 
 deceased person, and not excluded for irrelevancy or incom- 
 petency." 1 
 
 " Where in any civil action, suit or proceeding, the claim 
 or defence is founded on a book account, any party or inter- 
 
 1 Ibid. § 2. 
 
S lll."l OPERATION OF ENABLING STATUTES. 171 
 
 ested person may testify to his account book, and the items 
 therein contained ; that the same is a book of original entries, 
 and that the entries tlierein were made by himself, and are 
 true and just; or that the same were made by a deceased 
 person, or by a disinterested person, a non-resident of the 
 state at the time of the trial, and were made bj' such deceased 
 or non-resident person in the usual course of trade, and of 
 his duty or employment to the party so testifying; and 
 thereupon the said account book and entries shall be ad- 
 mitted as evidence in the cause." -^ 
 
 " In any action, suit or proceeding, by or against any sur- 
 viving partner or partners, joint contractor or contractors, 
 no adverse party, or person adversely interested in the event 
 thereof, shall, by virtue of section one of this act, be rendered 
 a competent witness, to testify to any admission or conversa- 
 tion, by any deceased partner or joint contractor, unless 
 some one or more of the surviving partners or joint contrac- 
 tors were also present at the time of such admission or con- 
 versation ; and in every action, suit or proceeding, a party to 
 the same, "who has contracted with an agent of the adverse 
 party, the agent having since died, shall not be a competent 
 witness as to any conversation or transaction between him- 
 self and such agent, except where the conditions are such, 
 that under the provisions of sections two and three of this 
 act, he would have been a principal and not an agent." ^ 
 
 " No husband or wife shall, by virtue of section one of this 
 act, be rendered competent to testify for or against each 
 other as to any transaction or conversation occurring during 
 the marriage, whether called as a witness during the exist- 
 ence of the marriage, or after its dissolution, except in cases 
 where the wife would, if unmarried, be plaintiff or defend- 
 ant, or where the cause of action grows out of a personal 
 wrong or injury done by one to the other, or grows out of 
 the neglect of the husband to furnish the wife with a suitable ' 
 support ; and except in cases where the litigation shall be 
 concerning the separate property of the wife, and suits for 
 divorce ; and except also in actions upon policies of insur- 
 ance of property, so far as relates to the amount and value 
 of the property alleged to be injured or destroyed, or in 
 
 1 Ibid. § 3- 2 Ibid. § 4. 
 
172 COMPETENCY. [CHAP. VIII. 
 
 actions against carriers, so far as relates to tlie loss of prop- 
 erty and the amount and value thereof, or in all matters of 
 business transactions where the transaction was had and con- 
 ducted by such married woman as the agent of her husband, 
 in all of which cases the husband and wife may testify for or 
 against each other, in the same manner as other parties may, 
 u.nder the provisions of this act : Provided, that nothing in 
 this section contained shall be construed to authorize or per- 
 mit any such husband or wife to testify to any admissions 
 or conversations of the other, whether made by him to her 
 or by her to him, or by either to third persons, except in suits 
 or causes between such husband and wife."-' 
 
 " Any party to any civil action, suit or proceeding, may 
 compel any adverse party or person for whose benefit such 
 action, suit or proceeding is brought, instituted, prosecuted 
 or defended, to testify as a witness at the trial, or by deposi- 
 tion, taken as other depositions are by law required, in the 
 same manner, and subject to the same rules, as other wh> 
 nesses."^ 
 
 " In any civil action, suit or proceeding, no person who 
 would, if a party thereto, be incompetent to testify therein 
 under the provisions of section two or section three, shall 
 become competent by reason of any assignment or release of 
 his claim, made for the purpose of allowing such person to 
 testify." 3 
 
 " Nothing in this act contained shall in any manner affect 
 the laws now existing relating to the settlement of the estates 
 of deceased persons, infants, idiots, lunatics, distracted per- 
 sons, or habitual drunkards having conservators, or to the 
 acknowledgment or proof of deeds and other conveyances 
 relating to real estate, in order to entitle the same to be 
 recorded, or to the attestation of the execution of last wills 
 and testaments, or of any other instrument required by law 
 to be attested."* 
 
 1 Ibid. § 5. field &c. Plank-road Co. v. Harrison, 
 
 "i Ibid. § 6. 16 111. 81 ; Lee v. Quick, 20 111. 392; 
 
 s Ibid. § 7. Brown v. Hurd, 41 111. 121 ; Adams 
 
 « Ibid. § 8. Ex. Co. V. Haynes, 42 111. 89 ; Illinois 
 
 For decisions as to the competency &c. II. R. Co. v. Weldon, 52 111. 290 ; 
 
 of parties and persons interested under Reget v. Bell, 77 HI. 593 ; Bradshaw 
 
 previous statutes, now obsolete, see v. Combs, 102 111. 428. 
 
 Pickering v. Misner, 11 111. 507 ; Pitts- 
 
§ 112.] OPEEATIOK OP ENABLING STATUTES. 173 
 
 The intention of the statute is that no person directly 
 interested, etc., shall be allowed to testify, where the adverse 
 party sues or defends as the executor, administrator, heir, 
 legatee, or devisee of any deceased person, except as to facts 
 occurring subsequent to the death of the deceased, — to those 
 he may testify ; but if the adverse party sues or defends as 
 guardian or trustee for such heir, legatee, or devisee, then 
 the additional restriction is imposed, that such facts shall 
 have occurred not only subsequent to the death of the de- 
 ceased, but also after such heir, legatee, or devisee shall have 
 attained his or her majority.^ The provision applies as well 
 in favor of a remote, as in that of an immediate heir. The 
 • word " heirs " comprehends the heirs of heirs, ad infinitum. 
 The intent of the statute is to make the right of a party to 
 testify a mutual right, and to withhold it where the adverse 
 party claims in a representative capacity under a deceased 
 person.^ Facts which happened after the death of the de- 
 ceased person may in all cases be testified to.^ Where a 
 witness has testified on behalf of the estate, the other side 
 may produce witnesses to testify upon the same subject- 
 matter, even though it may involve transactions with or 
 statements by the deceased.* A necessary, though not actual, 
 party will be deemed incompetent, the same as if he were an 
 actual party to the record.^ 
 
 §112. Indiana. — "All persons, whether parties to or 
 
 1 Stone V. Cook, 79 111. 424. See erton, 106 111. 31 ; in suits to foreclose 
 also Langley v. Dodsworth, 81 111. 86. mortgages, see Boester v. Byrne, 72 111. 
 
 2 Merrill v. Atkin, 59 111. 19. 466 ; Remann v. Buckmaster, 85 111. 
 « Funk V. Eggleston, 92 111. 515. 403 ; Richardson v. Hadsal,' 106 111. 
 ^ Straubher v. Mohler, 80 111. 21 ; 476 ; to redeem from foreclosure, see 
 
 Penn v. Oglesby, 89 111. 110 ; Jacquin Donlery i;. Montgomery, 66 111. 227; 
 
 r. Davidson, 49 Id. 82; Stewart u. Iluckman r. Atwood, 71 111. 155. As 
 
 Kirk, 69 111. 509. to the competency of the widow of the 
 
 ^ Alexander w. Hoffman, 70111. 114. deceased person, see Reeves v. Herr, 59 
 
 For decisions applying the above III. 81 ; Stewart v. Kirk, 69 111. 509 ; 
 
 statutory provisions in actions upon Connelly u. Dunn, 73 111. 218; Prim- 
 
 hills and notes, see Whitmer v. Rucker, mer v. Clabaugh, 78 III. 94. See also, 
 
 71 111. 410; Sconce v. Henderson, 102 as to the application of the restrictive 
 
 111. 376 ; Hurlburt v. Meeker, 104 111. provision, generally, Buck v. Beekly, 45 
 
 541 ; Redden v. Inman, 6 111. App. 55 ; 111. 100 ; Kent v. Mason, 79 111. 540 ; 
 
 Combs V. Bradshaw, 6 Id. 115; in Forbes f. Snyder, 94 111. 374; Walsh 
 
 suits respecting real property, see v. Wright, 101 111: 178 ; Apperson !■. 
 
 Stonecipher v. Hall, 64 111. 121 ; Al- Goggin, 3 111. App. 48 ; Henry r. 
 
 exander v. Hoffman, 70 111. 114 ; King Tiffany, 5 Id. 548 ; Douglas v. Fuller- 
 
 V. Worthington, 73 111. 161 ; Byle r. ton, 7 Id. 102 ; Stevens v. Brown, 12 
 
 Oustatt, 92 111. 209; McCann v. Ath- Id. 619. 
 
174 COMPETENCY. [CHAP. Vm. 
 
 interested in the suit, shall be competent witnesses in a civil 
 action or proceeding, except as herein otherwise provided." i 
 
 "The following persons shall not be competent witnesses: 
 (1) Persons insane at the time they are offered as witnesses, 
 whether they have been so adjudged or not ; (2) Children 
 under ten years of age, unless it appears that they under- 
 stand the nature and obligation of an oath ; (3) Attorneys, 
 as to confidential communications made to them in the course 
 of their professional business, and as to advice given in such 
 cases ; (4) Physicians, as to matter communicated to them, 
 as such, hj patients, in the course of their professional busi- 
 ness, or advice given in such cases ; (5) Clergymen, as to 
 confessions or admissions made to them in course of disci- 
 pline enjoined by their respective churches ; (6) A husband 
 and wife, as to communications made to each other." ^ 
 
 "In suits or proceedings in which an executor or adminis-- 
 trator is a party, involving matters Avhich occurred during 
 the life-time of the decedent, where a judgment or allowance 
 may be made or rendered for or against the estate represented 
 by such executor or administrator, any person who is a nec- 
 essary party to the issue or record, whose interest is adverse 
 to such estate, shall not be a competent witness as to such 
 matters against such estate : Provided, however. That in cases 
 where a deposition of such decedent has been taken, or he 
 has previously testified as to the matter, and his testimony 
 or deposition can be used as evidence for such executor or 
 administrator, such adverse party shall be a competent wit- 
 ness for himself, but only as to any matters embraced in such 
 deposition or testimony." ^ 
 
 " In all suits by or against heirs or devisees, founded on a 
 contract with or demand against the ancestor, to obtain title 
 to or possession of property, real or personal, of, or in right 
 of, such ancestor, or to affect the same in anj^ manner, 
 neither party to such suit shall be a competent witness as to 
 any matter which occurred prior to the death of the ances- 
 tor." * 
 
 " When in any case an agent of a decedent shall testify on 
 behalf of an executor, administrator, or heirs, concerning any 
 transaction, as having been had by him, as such agent, with 
 
 1 Rev. Stat. 1881, p. 93, § 496. ' Ibid. § 498. 
 
 2 Ibid. § 497. « Ibid. § 499. 
 
§ 112.] OPERATION OF ENABLING STATUTES. 175 
 
 a party to the suit, his assignor or grantor, and in the absence 
 of the decedent, or if any witness sliall, on behalf of the 
 executor, administrator, or heirs, testify to any conversation 
 or admission of a party to the suit, his assignor or grantor, 
 as having been had or made in the absence of the deceased ; 
 then tlie party against whom sucli evidence is adduced, his 
 assignor or grantor, shall be competent to testify concerning 
 the same matter. No person who shall have acted as an 
 agent in the making or continuing of a contract with any 
 person who may have died, shall be a competent witness, in 
 any suit upon or involving such contract, as to matters oc- 
 curring prior to the death of such decedent, on behalf of the 
 principal to such contract, against the legal representatives 
 or heirs of the decedent, unless he shall be called by such 
 heirs or legal representatives. And in such case he shall 
 be a competent witness only as to matters concerning which 
 he is interrogated by such heirs or representatives. When, 
 in any case, a person shall be charged with unlawfully taking 
 or detaining personal property, or having done damage 
 thereto, and such person by his pleading shall defend on the 
 ground that he is executor, administrator, guardian, or heir, 
 and as such has taken or detains the property, or has done 
 the acts charged, then no person shall be competent to testify 
 who would not be competent if the person so defending were 
 the complainant ; but when the person complaining cannot 
 testify, then the party so defending shall also be excluded."^ 
 
 "When the husband or wife is a party, and not a compe- 
 tent witness in his or her own behalf, the other shall also be 
 excluded ; except that the husband shall be a competent 
 witness in a suit for the seduction of the wife, but she shall 
 not be competent." ^ 
 
 "In all cases in which executors, administrators, heirs, or 
 devisees are parties, and one of the parties to the suit shall 
 be incompetent, as hereinbefore provided, to testify against 
 them, then the assignor or grantor of a party making such 
 assignment or grant voluntarilj', shall be deemed a party 
 adverse to the executor or administrator, heir or devisee, as 
 the case may be : Provided, however, That in all cases referred 
 to in the preceding sections, the objection to the competency 
 of such witnesses may be waived. Or the Court may, in its 
 1 Ibid. § 500. 2 Ibid. § 501, 
 
176 COMPETENCY. [CHAP. VIII. 
 
 discretion, require any party to a suit, or other person, to 
 testify ; and any abuse of such discretion shall be reviewable 
 upon appeal." 1 
 
 " In all actions by an executor or administrator on con- 
 tracts assigned to the decedent, when the assignor is alive 
 and a competent witness in the cause, the executor or ad- 
 ministrator and the defendant or defendants shall be com- 
 petent witnesses as to all matters which occurred between 
 the assignor and the defendant or defendants, prior to notice 
 of such assignment." 2 
 
 " No want of belief in a Supreme Being or in the Christian 
 religion shall render a witness incompetent ; but the want of 
 such religious belief may be shown upon the trial. In all 
 questions affecting the credibility of a witness, his general 
 moral character may be given in evidence."^ 
 
 " Any fact which might, heretofore, be shown to render a 
 witness incompetent, may be hereafter shown to affect his 
 credibility."* 
 
 As early as 1852 all objections to the competency of a 
 witness by reason of crime or interest, were removed by 
 statute;^ and where one party called the other as a witness 
 (which he could do), who testified to new matter, pertinent 
 to the issue, but not responsive to the questions put to him, 
 the party calling him could testify in respect to such new 
 matter.^ 
 
 In every case it must be made to appear in some legal 
 way, that the alleged decedent is dead, before an objection 
 can be sustained to the competency of a party to testify as 
 to a matter which occurred prior to his assumed death.^ And 
 where the deposition of the deceased person is admitted in 
 evidence, the other party may testify on all points contained 
 
 1 Ibid. § 502. Blackf. 221 ; Barnard v. Flinn, 8 Ind. 
 
 2 76irf. §503. 204; Hubler v. PuUen, 9 Ind. 273; 
 8 Ihid. § 505. Section 604 relates Swift i>. Ellsworth, 10 Ind. 205 ; Dern- 
 
 to expert testimony only. ing v. Patterson, Id. 251 ; Johnson c. 
 
 i Ibid. § 506. Cox, 12 Ind. 362 ; Cleveland «. 
 
 6 Muir V. Gibson, 8 Ind. 187. Hughes, 12 Ind. 512 ; French v. Ven- 
 
 " Thompson v. Shseffier, 9 Ind. 500; neman, 14 Ind. 282; Lung v. Sims, 14 
 
 Draggoo v. Draggoo, 10 Ind. 95. For Ind. 467 ; Railsback v. Koons, 18 Ind. 
 
 matters of practice as to examining 274 ; Smith v. Rosenham, 19 Ind. 256. 
 
 an adverse party on interrogatories, ' Hodgson v. Jeffreys, 52 Ind. 334. 
 
 see McPheeters v. MoPheeters, 6 
 
§ 113.] OPERATION OF ENABLING STATUTES. 177 
 
 in such deposition.^ Declarations of the deceased, in his own 
 favor, are inadmissible.^ 
 
 Where the claim sued on is based on a contract made with 
 the administrator, the party holding the claim is a competent 
 witness in his own behalf.^ In examining witnesses in these 
 cases, an attempt, indirectly, to draw from the witness that 
 which he is prohibited from directly stating, is not allowable.* 
 
 § 118. Iowa. — " Every human being of sufficient capacity 
 to understand the obligation of an oath, is a competent wit- 
 ness in all cases, both civil and criminal, except as herein 
 otherwise declared. . . ." ^ 
 
 " Facts which have heretofore caused the exclusion of 
 testimony, may still be shown for the purpose of lessening 
 its credibility." 8 
 
 " No person offered as a witness in any action or proceed- 
 ing in any court, or before any officer acting judicially, shall 
 be excluded by reason of his interest in the event of the 
 action or proceeding, or because he is a party thereto, except 
 as provided in this chapter."^ 
 
 " No party to any action or proceeding, nor any person 
 interested in the event thereof, nor any person from, through, 
 
 ' Hatton V. Jones, 78 Ind. 466. suits. Dille o. Webb, 61 Ind. 85 ; 
 
 '' Bristor V. Bristor, 82 Ind. 276. Baker v. Baker, 69 Ind. 399. Actions 
 
 8 Voiles V. Voiles, 51 Ind. 385. against surviving partner. Dodd v. 
 
 * Cottrell V. Cottrell, 81 Ind. 87. Kogers, 68 Ind. 110 ; Wrape v. Hamp- 
 
 As to the competency of the per- son, 78 Ind. 499; Meyer v. Morris, 
 
 sonal representative or guardian to tes- Id. 558. Various applications of the 
 
 tify, see Littler v. Smiley, 9 Ind. 116 ; statutory provision. McDonald v. Mc- 
 
 Markel !•. Spitter, 28 Ind. 488 ; Good- Donald, 24 Ind. 68 ; Martin v. Asher, 
 
 win v. Goodwin, 48 Ind. 584 ; Dembo 25 Ind. 237 ; Kirchner !'. Lewis, 28 
 
 f. Wright, 53 Ind. 226. When the Ind. 499 ; Heed u. Reed, 30 Ind. 813 ; 
 
 widow is competent, see Pea v. Pea, Bishop v. Welch, 35 Ind. 521 ; Hall v. 
 
 35 Ind. 387 ; Noble v. Withers, 36 Ind. State, 39 Ind. 301 ; Sherlock v. Ailing, 
 
 193; Tracy v. Kelley, 52 Ind. 535; 44 Ind. 184; Applegate c. Moffit, 60 
 
 Dembo v. Wright, 53 Ind. 226. Ap- Ind. 104 ; Coryell v. Stone, 62 Ind. 
 
 plications of the statute in actions on 307 ; Charles v. Malott, 65 Ind. 184 ; 
 
 hills and notes. Walker v. Clifford, 21 Clift v. Shockley, 77 Ind. 297 ; Pro- 
 
 Ind. 123; Skillen v. Skillern, 41 Ind. man v. Rous, 83 Ind. 94; Parey c. 
 
 260 ; Jenks v. Opp, 43 Ind. 108 ; Milam Wintrode, 87 Ind. 379 ; Terrell v. 
 
 0. Milam, 60 Ind. 58. Actions rela- ButterfieUl, 92 Ind. 1; Cupp k. Ayers, 
 
 tire to reaZproperty, generally. Gavin 89 Ind. 60; Creamery. Sirp, 91 Ind. 
 
 V. Buckles, 41 Ind. 528 ; Hodgson v. 366. 
 
 Jeffreys, 52 Ind. 334 ; Howard v. 6 Rgy. Code 1880, p. 857, § 3636. 
 
 Howard, 69 Ind. 592 ; Harding v. As to criminal cases, see Infra, 
 
 Elzey, 88 Ind. 321. Foreclosure suits. Chap. IX. 
 Hoadley v. Hadley, 48 Ind. 452 ; Ab- « Ibid. § 3637. 
 shirev.Williams, 76Ind. 97, Partition '' Ihid. I 3638. 
 
178 COMPETENCY. [CHAP. VIII. 
 
 or under whom any such party or interested. person derives 
 any interest or title by assignment or otlierwise, and no hus- 
 band or wife of any said party or persons shall be examined 
 as a witness in regard to any personal transaction or com- 
 munication between such witness and a person at the com- 
 mencement of such examination, deceased, insane, or lunatic ; 
 against the executor, administrator, heir at law, next of kin, 
 assignee, legatee, devisee, or survivor of such deceased per- 
 son, or the assignee or guardian of such insane person or 
 lunatic. But this prohibition shall not extend to any trans- 
 action or communication as to which any such executor, 
 administrator, heir at law, next of kin, assignee, legatee, 
 devisee, survivor, or guardian, shall be examined on his own 
 behalf, or as to which the testimony of such deceased or 
 insane person or lunatic shall be given in evidence." ^ 
 
 " Any person may have his own deposition, or that of any 
 other person, read and used as evidence in all cases where 
 his evidence would be incompetent by the provisions of the 
 preceding section, by causing such deposition to be taken, 
 either before or after suit brought, during the lifetime or 
 sanity of the person against whom, his executor, heir, or other 
 representative, the same is to be used : Provided, such depo- 
 sition shall have been taken and filed ten days prior to the 
 death or insanity of such person. If after suit brought, such 
 deposition may be taken in the usual manner ; if before, then 
 the same may taken de bene esse, as provided by law."^ 
 
 " Neither the husband nor wife shall in any case be a wit- 
 ness against the other except in a criminal prosecution for a 
 crime committed, one against the other, or in a civil action or 
 proceeding, one against the other ; but they may in all civil 
 and criminal cases be witnesses for each other." ^ 
 
 " Neither husband nor wife can be examined in any case as 
 to any communication made by the one to the other while 
 married, nor shall they, after the marriage relation ceases, be 
 permitted to reveal in testimony any such communication 
 made while the marriage subsisted."* 
 
 "No practicing attorney, counsellor, physician, surgeon, 
 minister of the gospel, or priest of any denomination, shall 
 be allowed, in giving testimony, to disclose any confidential 
 
 1 lUd. § 3639. 3 Ibid. § 3641. 
 
 2 Ibid. § 3640. * Ibid. § 3642. 
 
§ 113.] OPERATION O^ ENABLING STATUTES. 179 
 
 communication properly intrusted to him in his professional 
 capacity, and necessary and proper to enable him to discharge 
 the functions of his ofSce according to the usual course of 
 practice or discipline. Such prohibition shall not apply to 
 cases where the party in whose favor the same are made 
 waives the rights conferred."^ 
 
 "A public oificer cannot be examined as to communica- 
 tions made to him in official confidence, when the public 
 interests would suffer by the disclosure."^ 
 
 " The judge of the court is a competent witness for either 
 party, and may be sworn upon the trial. But in such case it 
 is in his discretion to order the trial to be postponed or sus- 
 pended and to take place before another judge." ^ 
 
 In construing prior statutory provisions similar in char- 
 acter to § 3639, the courts have held that the interest which 
 will disqualify a witness in an action in which an executor 
 or administrator is a party, must be present, certain, and 
 vested. If the interest is of a doubtful character, it goes to 
 his credibility only.* Thus the restrictive provision does not 
 apply to nor exclude the testimony of a witness who may 
 have been, at some past time, the holder of a mere equitable 
 interest in the property in controversy ;^ or that of a son who 
 had been repaid a loan made to his father (the deceased), 
 in an action by the father's executors against one for 
 whose benefit the money borrowed from the son had been 
 expended.^ So also in an action to enforce a judgment on a 
 promissory note in favor of an estate against the indorser, 
 the principal debtor was held competent to testify as to 
 transactions between the indorser and the deceased, as he 
 had nothing to gain or lose, whatever the result might be.^ 
 And the plaintiff's attorney, in an action against an adminis- 
 trator, was held competent, there being no agreement for a 
 contingent fee, although the attorney did not know that he 
 would be paid anything if the action failed.^ Again, the 
 provision does not apply when the deceased was only a trus- 
 tee in regard to the matter in controversy, and the cestui que 
 
 ^ Ibid. § 364.3. 5 Zerbe v. Reigart, 42 Iowa, 229. 
 
 2 Ibid. § 3644. « Bixley v. Worraley, 44 Iowa, 347. 
 
 ' Ibid. § 3645. Compare Wormley u. Hamburg, 46 
 
 » Wormley v. Hamburg, 40 Iowa, H. 144. 
 
 22. S. P. Goddard v. Leffinwell, Id. ' Fuller v. Lendrum, 58 Iowa, 353. 
 
 249. 8 Berge v. Khlnehart, 36 Iowa, 369. 
 
180 COMPETENCY. [CHAP. Vni. 
 
 trust is still living.^ And wherever interested parties were 
 recognized as competent, under some exception in the com- 
 mon law, or by previous statutes, they were not excluded by 
 this provision.^ Thus, the section does not change the com- 
 mon-law rule that a party to a suit may testify to the loss of 
 a note sued on where such evidence is received from neces- 
 sity and the nature of the subject.^ So also in an action by 
 the representative against several defendants, one of them 
 who withdrew his defence upon an arrangement that judg- 
 ment should be taken against him for a certain amount, was 
 held no longer a party, and not rendered incompetent by the 
 statute to testify as to transactions between himself and the 
 deceased.* Again, the provision is limited in its application 
 to testimony as to transactions between one at the time of 
 the examination deceased, or insane, and the witness, and 
 does not exclude testimony as to contracts made by the for- 
 mer with another, although the husband or wife of the wit^ 
 ness.^ And the disqualification does not extend to witnesses 
 introduced by the representative to testify in his favor; the 
 word " against " refers to testimony and not to actions 
 against the representative.® 
 
 On the other hand it has been held that in an action by a 
 personal representative the fact that the matters as to which 
 the defendant wished to testify were connected with transac- 
 tions of a firm of which the deceased was a member, and that 
 the surviving member of the firm was a witness, did not ren- 
 der the defendant a competent witness." And that one of 
 
 1 AVatson i>. Russell, 18 Iowa, 79. conversations with the former admin- 
 
 2 Keech v. Cowlcs, 34 Iowa, 250; istrator (Dunne v. Deery, 40 Iowa, 
 Khinehart v. Buckingham, Id. 409. 251) ; or to the testimony of the heir 
 
 ^ Nash u. Gibson, 16 Iowa, 305. at law, in an action on a note and 
 
 Following out these principles it has mortgage, brought by an assignee of 
 
 been held that the restrictive provis- the deceased. Sweezey v. Collins, 40 
 
 ion does not apply to the plaintiff in Iowa, 540. See also Miller v. Dayton, 
 
 replevin seeking to recover attached 57 Iowa, 423, where, in an action for 
 
 property from the sheriff, the plaintiff the malicious killing of deceased, the 
 
 in the attachment having died defendant was allowed to testify, the 
 
 (Bevan v. Hayden, 13 Iowa, 122); or court virtually deciding that to kill .i 
 
 to the wife of one seeking to establish man is not "a personal transaction" 
 
 a claim against the estate of the de- with him within the meaning of the 
 
 ceased (Shafer v. Dean, 29 Iowa, statute. 
 
 144. See also Dougherty v. Deeney, * Conger v. Bean, 58 Iowa, 321. 
 
 41 Id. 19 ; Campbell r. Mayes, 38 Id. ^ Lines v. Lines, 54 Iowa, 600. 
 
 392); ortothe testimony of a witness, ^ Leasman c. Nicholson, 59 Iowa, 
 
 in an action against an administrator 259. 
 de bonis non, as to transactions and ' Hosmer v. Burke, 26 Iowa, 353. 
 
§ 114.J OPEEATION OF ENABLING STATUTES. 181 
 
 several defendants, in such an action, could not testify to 
 personal transactions with the deceased, although he was not 
 interested in the issue upon which he was called to testify.^ 
 Even the personal representative himself cannot testify 
 where the adverse party is also an executor or adminis- 
 trator ; 2 and where he does testify, in a case where he may 
 do so, the defendant is competent to explain the matters as 
 to which the representative has given his evidence.^ But 
 where the action is against the representative, the plaintiff 
 cannot testify respecting personal transactions between him- 
 self and the deceased, even for the purpose of rebutting the 
 testimony of the decedent's widow.* Thus, in an action 
 brought against an administrator, to recover upon an implied 
 contract for services rendered the deceased, the plaintiff can- 
 not testify to the facts relied upon to raise the promise.*^ 
 And where a corpor§tion is plaintiif, a stockholder cannot 
 testify respecting a personal transaction between himself and 
 the deceased.® 
 
 § 114. Kansas. — ^ " No person shall be disqualified as a 
 witness in any civil action or proceeding, by reason of his 
 interest in the event of the same, as a party or otherwise, or 
 by reason of his conviction of a crime ; but such interest or 
 conviction may be shown for the purpose of affecting his 
 credibility."^ 
 
 " No party shall be allowed to testify in his own behalf, in 
 respect to any transaction or communication had personally 
 by such party with a deceased person, when the adverse 
 party is the executor, administrator, heir at law, next of kin, 
 surviving partner or assignee of such deceased person, where 
 they have acquired title to the cause of action immediately 
 from such deceased person ; nor shall the assignor of a thing 
 
 1 Williams v. Barrett, 52 Iowa, 637. enabling one party to call the adverse 
 
 2 Sclimidt V. Kreismer, 31 Iowa, party as a witness, and permitting a 
 479. party, under certain circumstances, to 
 
 ' Bailey v. Keyes, 52 Iowa, 90. prove the items of his own account, 
 
 * Caraday o. Johnson, 40 Iowa, see Lowe b. Ganby, 1 Morr. 281 ; Ev- 
 
 587. Compare Willcox v. Jackson, erly v. Cole, 3 Greene, 239 ; Bacon v. 
 
 51 Iowa, 208. Lee, 4 Iowa, 490 ; Stevens v. Camp- 
 
 5 Peek V. McKean, 45 Iowa, 18; bell, 6 Id. 538; Hastings w. Devoran, 
 Smith t). Johnson, Id. 308; Wilson „■. 7 Id. 319; Holmes v. Budd, 11 Id. 
 Wilson, 52 Iowa, 44. 186 ; Arthur „. Blunt, 12 Id. 200 ; 
 
 6 Burlington Bank v. Owen, 52 Barker v. Kuhn, 38 Id. 392. 
 
 Iowa, 107. 7 Comp. Laws, 1881, p. 644, § 3847. 
 
 For decisions under earlier statutes 
 
182 COMPETENCY. [CHAP. VIII. 
 
 in action be allowed to testify in behalf of such party con- 
 cerning any transaction or communication had personally by 
 such assignor with a deceased person in any such case ; nor 
 shall such party or assignor be competent to testify to any 
 transaction had personally by such party or assignor with a 
 deceased partner or joint contractor in the absence of his 
 surviving partner when such surviving partner or joint con- 
 tractor is an adverse party .^ If the testimony of a party to 
 the action or proceeding has been taken, and he afterwards 
 die, and the testimony so taken shall be used after his death, 
 in behalf of his executors, administrators, heirs at law, next 
 of kin, assignee, surviving partner or joint contractor, the 
 other party, or the assignor, shall be competent to testify as 
 to any and all matters to which the testimony so taken 
 relates."^ 
 
 " The following persons shall be incompetent to testify : 
 First. Persons who are of unsound mind at the time of their 
 production for examination. Second. Children under ten 
 years of age who appear incapable of receiving just impres- 
 sions of the facts respecting which they are examined, or of 
 relating them truly. Third. Husband and wife, for or against 
 each other, except concerning transactions in which one acted 
 as the agent of the other, or when they are joint parties and 
 have a joint interest in the action ; but in no case shall either 
 be permitted to testify concerning any communication made 
 by one to the other during the marriage, whether called while 
 that relation subsisted, or afterwards. Fourth. An attorney, 
 concerning any communications made to him by his client, 
 in that relation, or his advice thereon, without the client's 
 consent. Fifth. A clergyman or priest, concerning any con- 
 fession made to him in his professional character in the 
 course of discipline enjoined by the church to which he 
 belongs, without the consent of the person making the con- 
 fession. Sixth. A physician or surgeon, concerning any 
 communication made to him by his patient with reference 
 to any physical or supposed physical disease, or any knowl- 
 edge, obtained by a personal examination of any such pa- 
 tient : Provided, That if a person offer himself as a witness, 
 that is to be deemed a consent to the examination, also, of 
 an attorney, clergyman or priest, physician or surgeon, on 
 1 See Hook v. Bixby, 13 Kan. 164. = Comp. Laws, 1881, § 3850. 
 
§ 115.] OPERATION OF ENABLING STATUTES. 183 
 
 the same subject, within the meaning of the last tliree sub- 
 divisions of tliis section."^ 
 
 Under the previous statute,^ a party could testify in his 
 ovfn cause, provided he gave reasonable notice to his adver- 
 sary of his intention so to do.^ 
 
 Section 3850 does not prohibit a party sued by an admin- 
 istratrix for a debt due the deceased from testifying as to any 
 question raised by the issues, vsrhere such testimony is not in 
 respect to any transactions or communication had personally 
 by such party v^ith deceased.* And in such a case, the plain- 
 tiffs being the administratrix of a deceased partner, and the 
 surviving partner, the defendant may testify to all matters in 
 controversy vrhicli have transpired since the deceased partner 
 died, and as to all matters respecting which the surviving 
 partner has testified, and that a book offered by him (the 
 defendant) was his book of original entries.^ And in case 
 he is called by the other party to testify as to a part of any 
 transaction with the deceased partner or joint contractor, he 
 may go on, in his own behalf, and testify as to the remainder 
 of such transaction.^ Where two join in a suit against a 
 personal representative, each of whom is incompetent to tes- 
 tify to conversations between himself and the deceased, 
 neither can testify as to a conversation between the deceased 
 and the other plaintiff, at which the three were present.' 
 The defendant being an executor, he is a competent witness 
 in favor of the estate, and so is a devisee, or the husband or 
 wife of a devisee.^ Thus, where a suit is revived in the name 
 of plaintiff's widow, as his executrix, she is a competent wit- 
 ness as to all matters, except communications between her- 
 self and him during marriage ; but the defendant is not 
 competent to testify to any transaction personally had witli 
 the decedent.^ 
 
 § 115. Kentucky. — " No person shall be disqualified as a 
 witness, in any civil action or special proceeding, by reason 
 of his interest in the event of the same as a partj^ or other- 
 wise ; but such interest may be shown for the purpose of 
 affecting his credibility." i" 
 
 1 Ibid. § 3851. 7 Wills V. Wood, 28 Kan. 400. 
 
 2 Code, 1858, §§ 310, 313. " McCartney u. Spencer, 26 Kan. 
 8 Mallory v. Leiby, 1 Kan. 97. 62. 
 
 * McKean v. Massey, 9 Kan. 600. » Jaquith v. Davidson, 21 Kan. 341. 
 
 6 Anthony v. Stinson, 4 Kan. 211. M Gen. Stat. 1881, p. 413, § 22. 
 
 « Niccolls V. Esterley, 10 Kan. 32. 
 
184 COMPETENCY. [CHAP. VIII. 
 
 " Neither husband nor wife sliall be competent for or against 
 each other, or concerning any communication made by one 
 to the otlier, during marriage, whether called while that 
 relation subsisted or afterwards : Provided, however. That 
 in actions where the wife, were she a feme sole, would be 
 plaintiff or defendant, the wife may testify, or her husband 
 TaSuj testify, but both shall not be permitted to testify." ^ 
 
 " No party shall be allowed to testify by virtue of section 
 twenty-two, in any action or special proceeding where the 
 adverse party is deaf and dumb, or an infant, (unless the 
 infant testifies in his own behalf,) or is the guardian or trustee 
 of a child or children of a deceased person, or is the com- 
 mittee of an idiot or lunatic, or is the executor or adminis- 
 trator of a deceased person, or is the party claiming as heir 
 or devisee of a deceased person, except in the following 
 cases, viz. : (1) In actions or special proceedings with the 
 executor, administrator, guardian, or trustee of infants, heir, 
 or devisee, as above specified, a party may testify to facts 
 which occurred after the death of the decedent or parent. 
 (2) In actions or special proceedings upon contracts made by 
 deceased persons through agents, and in which the agent 
 shall testify, a party may testify to all that transpired be- 
 tween him and the agent in relation to such contract and 
 the making thereof, and in relation to any conversations or 
 transactions between himself and such agent testified to by 
 the agent. (3) In actions or special proceedings of either of 
 the classes above specified, in which any adverse party, or 
 any other person having a direct interest in the matter in 
 controversy, shall be called as a witness, and testify to trans- 
 actions or conversations with a party to such action, such 
 party shall also be permitted to testify as to such specific 
 transactions and conversations. (4) In actions or special 
 proceedings of either of the classes above specified, in which 
 one party calls a witness (other than an agent or person 
 interested) to prove conversations or admissions of the oppo- 
 site party, occurring before the death of said deceased person, 
 but not in his presence, the opposite party may testify as to 
 the same conversations or admissions. (5) In actions or 
 special proceedings of either of the classes above specified, in 
 which the claim or defence is founded on book account, a 
 
 , 1 Ibid. § 24. 
 
§ 115.] OPERATIOK OP ENABLING STATUTES. 185 
 
 party may testify as to the correctness of the original entries, 
 if made by himself ; and on such authentication of the ac- 
 count book and entries, said book and entries shall be ad- 
 missible as evidence in the case. (6) If the deposition of a 
 party who has died during the pendency of the suit shall be 
 given in evidence on the trial of such cause, the opposite 
 party may testify as to all matters contained in said deposi- 
 tion, and not excluded by irrelevancy or inadmissibility. In 
 all actions or special proceedings by or against a surviving 
 partner or partners, or a surviving joint contractor or con- 
 tractors, no adverse party to the suit shall be a competent 
 witness to testify to transactions, or declarations, or admis- 
 sions made by the deceased in the absence of his surviving 
 partner or joint contractor." ^ 
 
 " No person who would, if a party, be incompetent to tes- 
 tify under the provisions of section 25 of this chapter, shall 
 become competent by reason of the assignment of his 
 claim." 2 
 
 " No person shall be deemed competent to testify, in be- 
 half of his own interest, and against the interest of an adverse 
 party, in any action or special proceeding in which such 
 adverse party is not before the court otherwise than by con- 
 structive service."^ No one shall be incompetent as a wit- 
 ness because of his or her race or color.* 
 
 Under section 25, cited supra, the courts have held that 
 an administrator is not a competent witness against the infant 
 children of his intestate, in an action by them, by guardian 
 or next friend, against him, to recover rents which he had 
 collected for lands leased by him, which had descended to 
 them.^ Nor can an executor, when sued as such by the ex- 
 ecutor of another, testify as to transactions between liimself 
 and plaintiff's testator.^ So also, a distributee cannot testify 
 for the administrator, in an action by the latter against the 
 representative of another deceased person." But in a contest 
 over the probate of a will, it has been held that one of the 
 devisees may testify as to transactions between himself and 
 the testator, all the claimants under the will being entitled 
 
 1 Ihid. § 25. 6 -Wilson v. Unselt, 12 Bush, 215. 
 
 2 Ihid. § 26. 6 Hobbs v. Russell, 79 Ky. 61. 
 
 3 Ibid. § 27. ' Manion v. Lambert, 10 Bush, 295. 
 1 Ibid. § 28. 
 
186 COMPETENCY. [CHAP. Vm. 
 
 to the same privilege. AH the parties are thus placed upon 
 an equal footing, thus creating an exception to the rule 
 against permitting parties in interest to testify.^ 
 
 The fact that the personal representative has testified con- 
 fers no right on the adverse party to testify, save as to those 
 things to which his testimony related.^ Where the principal 
 in the transaction in question is dead, the rule of exclusion 
 applies also to transactions with his agent who is dead ; and 
 the fact that the agent testified at a former trial does not 
 change the rule.^ 
 
 § 116. Louisiana. — " The competent witness of any cove- 
 nant, or fact, whatever it may be in civil matters, is a person 
 of proper iinderstanding. The husband cannot be a witness 
 for or against his wife, nor the wife for or against her hus- 
 band, but in any case where the husband and wife may be 
 joined as plaintiffs or defendants, and have a separate interest, 
 they shall be competent witnesses for or against their separate 
 interests therein."* 
 
 The fact that the witness's testimony may show that he 
 has been guilty of an offence against the laws of the state, 
 will not prevent him from testifying, unless he himself ob- 
 jects.® 
 
 1 Flood D.PragofiE, 79 Ky. 607. See u. Eckless, 10 Id. 626 ; Semere u. Se- 
 also Booth K. Vanarsdale, 9 Bush, 717. mere, Id. 704; Kelly v. Ledoux, 11 
 
 2 Hardin v. Taylor, 78 Ky. 593. Id. 689; Huff «. Freeman, 13 Id. 262; 
 But see Eaves v. Harbin, 12 Bush, 445. Saunders v. Carroll, 14 Id. 27 ; Shep- 
 
 8 Harpending v. Daniel, 80 Ky. 449. hard v. Payson, 16 Id. 360 ; Butler v. 
 
 For decisions under earlier statutes, Stewart, 18 Id. 554; State v. Fahey, 
 
 see Covington &c. R. E. Co. v. Ingles, 35 Id. 9. 
 
 15 B. Mon. 637; Todd w. Luckett, 18 Time to apply to inierroffate. Brooks 
 
 Id. 125; Allen v. Shelby, 14 Id. 340; v. Walker, 3 La. Ann. 150; Coulter v. 
 
 Burnett v. Garnett, 18 Id. 68; Musick Cresswell, 7 Id. 367 ; Leggett v. Potter, 
 
 o. Ray, 3 Mete. 427. 9 Id. 184. 
 
 * Rev. Stat. 1876, § 3961. As to For7n and sufficiency of interrogato- 
 
 husband and wife, see infra, Chap. X. ries. Gilmore v. Brenham, 3 La. Ann. 
 
 6 Horrell v. Parish, 26 La. Ann. 6. 32 ; Levistones v. Marigny, 13 Id. 353. 
 
 For decisions illustrating the civil Service, and time to answer. Wall 
 
 law practice of examining the adverse v. Bry, 1 La. Ann. 312 ; Demoulin v. 
 
 party by commission by means of Anglaire, Id. 403 ; Mcintosh v. Smith, 
 
 written interrogatories, see the cases 2 Id. 756 ; Wethersby v. Huddleston, 
 
 indexed below : — Id. 845 ; Spears v. Nugent, Id. 11 ; 
 
 Right to propound interrogatories. Medley r. Wetzler, 5 Id. 217; Dwight 
 
 Walker v. Copley, 1 La. Ann. 247; u. Richard, Id. 365 ; Flower «. Downs, 
 
 Kenner v. Peck, 2 Id. 936 ; McGehee 6 Id. 539; Wright v. Abbott, Id. 569 ; 
 
 t). Brown, 3 Id. 272 ; Rachal tj. Rachal, Taylor v. Paterson, 9 Id. 251; 
 
 4 Id. 500 ; Guier v. Guier, 7 Id. 103 ; Blauchin v. Pickett, 21 Id. 680. 
 
 Billeaudeau v. Keller, 8 Id. 487 ; Meyer Form and sufficiency of answers. 
 
§ 117.] OPERATION OP EKABLING STATUTES. 187 
 
 § 117. Maine. — " No person 'shall be deemed an incom- 
 petent witness on account of his religious belief, but shall be 
 subject to the test of credibility ; and any person who does 
 not belieye in the existence of a Supreme Being, shall be 
 permitted to testify under solemn affirmation, and shall be 
 subject to all the pains and penalties of perjury." ^ 
 
 "No person shall be excused or excluded from being a 
 witness in any civil suit or proceeding at law, or in equity, 
 by reason of his interest in the event thereof as party or 
 otherwise, except as is hereinafter provided, but such interest 
 may be shown for the purpose of affecting his credibility ; 
 and the husband or wife of either party may be a witness 
 when either is called to testify with the consent of the 
 other." 2 
 
 "The provisions of the five prececling sections shall not 
 be applied to any cases, where, at the time of taking testi- 
 mony, or the time of trial, the party prosecuting, or the 
 party defending, or any one of them, is an executor or an 
 administrator, or made a party as heir of a deceased party ; 
 except in the following cases : (1) The deposition of a 
 party may be used at the trial, after his death, if the opposite 
 party is then alive ; and in that case the latter may also 
 testify. (2) In all cases in which an executor, adminis- 
 trator, or other legal representative of a deceased person is a 
 
 Haynes v. Heard, 3 La. Ann. 648 ; May, Id. 627 ; Knox v. Thompson, 12 
 Amonett v. Tisk, 4 Id. 342; Owen v. Id. 114 ; Swan v. Moore, 14 Id. 833; 
 Brown, 13 Id. 201 ; Boone v. Pelichet, State v. Harvey, 28 Id. 105 ; Lamp- 
 Id. 203; Peters v. Gibson, 11 Id. 97; ton's Succession, 35 Id. 418. 
 Bowers v. Hale, 14 Id. 419 ; Tegarden How the examination should be con- 
 V. Powell, 15 Id. 184 ; Quirk u. Hos- ducted. Nicholson v. Sherard, 10 La. 
 kins, Id. 656 ; Braxton v. Bloom, Id. Ann. 533 ; Kirtland u. Harris, 20 
 618 ; Woodruff u. Dodd, Id. 644 ; Id. 153 ; McDonald v. "Wells, 23 Id. 
 Maduel v. Mousseau, 28 Id. 691. 189. 
 
 Conclusiveness and effect of answers Objections for irregularity, etc. Fer- 
 as evidence. Johnson v. Marsh, 2 La. riber v. Latting, 9 La. Ann. 169; Hall 
 Ann. 772; Morrill i: Carr, Id. 807; v. Acklen, Id. 219; McClure i). King, 
 Sullivan v. "Williams, Id. 876; "Whit- 13 Id. 141; Picket v. Vance, 14 Id. 
 ing V. Ivey, 3 Id. 649 ; Graham v. 668 ; Morris v. "White, 28 Id. 855. 
 Benjamin, 5 Id. 186; Hoover v. Mil- Incidental matters of practice. Sea- 
 ler, 6 Id. 204; Commercial Bank v. man «. Babington, 11 La. Ann. 173; 
 Kouth, 7 Id. 128; "Walker v. "Wing- HufC w. Freeman, 15 Id, 240; Lapene 
 field, 16 Id. 300 ; Marionneaux v. Ed- o. Eiche, Id. 612 ; Bramstein v. Cres- 
 wards, 4 Id. 103 ; Conrey v. Harrison, cent Mutual Ins. Co., 24 Id. 589 ; Cain 
 Id. 349 ; Fletcher v. Fletcher, 5 Id. v. Loeb, 26 La. Ann. 616. 
 406; Prater v. Pritchard, 6 Id. 730; ^Jtev. Stat. 1881, p. 650, § 81. 
 Brander v. Lum, 11 Id. 217 ; Allen v. 2 /j,y, § 82. 
 
188 COMPETENCY. [CHAP. VIII. 
 
 party, such party may testify to any facts, legally admissible 
 upon the general rules of evidence, happening before or after 
 the death of such person ; and when such person so testifies, 
 the adverse party shall neither be excluded nor excused from 
 testifiying in reference to such facts. (3) If the representa- 
 tive party is nominal only, both parties may be examined as 
 witnesses ; if the adverse party is nominal only, and had 
 parted with his interest, if any, during the lifetime of the 
 representative party's testator or intestate, he shall not be 
 excluded from testifying if called by either party; and in an 
 action against an executor or administrator, if the plaintiff is 
 nominal only, or having had an interest, disposed of it in the 
 lifetime of the defendant's testator or intestate, neither party 
 to the record shall be excused or excluded from testifying. 
 (4) In an action by or against an executor, administrator, or 
 other legal representative of a deceased person, in which his 
 account-books or other memoranda are used as evidence on 
 either side, the other party may testify in relation thereto." ^ 
 
 " The rules of evidence which apply to actions by or 
 against executors or administrators, shall be applied in actions 
 where a person shown to the court to be insane is solely 
 interested as a party." ^ 
 
 In applying sections 82 and 87 above cited, or the prior 
 like statutory provisions,^ it has been held that a husband or 
 wife can testify with the consent of the other, but not against 
 an executor, etc.;* that the restrictive provision covers the 
 case of the executor of one who is in prison under sentence 
 of death ;^ and that an interested witness who is not a party 
 is not an incompetent witness, even though one party is an 
 administrator.^ 
 
 1 /6iW. p. 651, § 87. 400; Gould v. Carleton, Id. 511; 
 
 2 Ibid. p. 652, § 88. For decisions Payne ti. Gray, 56 Me. 317 ; Folsom 
 
 under earlier statutes, now mostly u. Chapman, 59 Me. 194; Blanchard 
 
 obsolete, see Morse v. Page, 25 Me. v. Hodgkins, 62 Me. 119. 
 
 496 ; State v. Pike, 33 Me. 361 ; Swett " Rev. Stat. 1871, eh. 82, §§ 82, 87. 
 
 V. Stubbs, Id. 481; Blake t'. Junkins, * Jones v. Simpson, 59 Me. 180; 
 
 34 Me. 237 ; Haynes v. Eowe, 40 Me. Hunter v. Lowell, 64 Me. 572. But 
 
 181 ; Fogg V. Babcock, 41 Me. 347 ; see McKeen v. Frost, 46 Me. 239 ; 
 
 Wheelden v. Wilson, 44 Me. 11 ; Mur- Dwelly v. Dwelly, Id. 377. 
 
 ray c. Joyce, Id. 342 ; Gimnison o. ^ Knight v. Brown, 47 Me. 468. 
 
 Lane, 45 Me. 165 ; Palmer v. Bangor, " Eawson i^. Knight, 73 Me. 340. 
 
 46 Me. 325; Walker v. Sanborn, Id. S. P. Alden v. Goddard, Id. 345. See 
 
 470; Carlisle u. McNamara, 48 Me. also Wentworth v. Wentworth, 71 
 
 424; Buckuam o. Perkins, 55 Me. Me. 72. 
 
§ lis.] OPEKATION OF ENABLING STATUTES. 189 
 
 Subdivision 2 of section 87 is held to be in derogation of 
 the common law, and must be construed strictly, so as to 
 import that the adverse party cannot testify unless the 
 administrator offers to testifjr;^ and then only in reference 
 to such facts as the administrators or heirs testify to, or in 
 regard to such books or memoranda of the deceased as they 
 put in evidence.^ And even the personal representative 
 cannot testifj' in support of bis ov/n private claim against the 
 estate which he nominally represents, for in such a case the 
 estate is the real defendant against which he is proceeding as 
 plaintiff.^ 
 
 § 118. Maryland. — " No person offered as a witness shall 
 hereafter be excluded, by reason of incapacity from crime or 
 interest, from giving evidence, either in person or by deposi- 
 tion, according to the practice of the courts, in the trial of 
 any issue joined, or hereafter to be joined, or of any matter 
 or question, or on any inquiry arising in any suit, action, or 
 proceeding, civil or criminal, in any court, or before any 
 judge, jury, justice of the peace, or other person having, by 
 law, or by consent of parties, authority to hear, receive, and 
 examine evidence ; but that every person so offered may and 
 shall be admitted to give evidence, notwithstanding that such 
 person may or shall have an interest in the matter in ques- 
 tion, or in the event of the trial of any issue, matter, question, 
 or inquiry, or of the suit, action, or proceeding in which he is 
 offered as a witness, and notwithstanding that such person 
 offered as a witness may have been previously convicted of 
 any crime or offence ; but no person who has been convicted 
 of the crime of perjury, shall be admitted to testify in any 
 case or proceeding whatever; and the parties litigant, and 
 
 1 Kelton V. Hill, 59 Me. 259. the deceased, unless the entries in liis 
 
 2 Suiirf.4;BurleighD.White,64Me.23. books of account are intelligible in 
 
 3 Preble v. Preble, 73 Me. 362. As thems'elves as setting forth in sub- 
 to the competency of a suryiying part- stance the facts constituting a right of 
 ner in an action wherein the repre- action in his favor against deceased, 
 sentative of a deceased partner is a the explanation of such entries "must 
 party, see Holmes v. Tenney, 68 Me. come from witnesses other than him- 
 416; Berry v. Stephens, 69 Me. 290. self. He cannot testify that the 
 As to when tlie administrator is only charges, whicli apparently represent 
 a nominal party within subd. 3 of § services rendered for third persons 
 87, see Tarnum v. Virgin, 52 Me. 576. or which do not indicate that they 
 Under subd. 4 of the same section it were rendered to deceased, were in 
 has been held that where plaintiff fact so rendered. Silver v. Worces- 
 sues for labor and services rendered ter, 72 Me. 322. 
 
190 COMPETENCY. [CHAP. VIII. 
 
 all persons in whose behalf any suit, action, or other proceed- 
 ing may be brought or defended, themselves and their wives 
 and husbands shall be competent and compellable to give 
 evidence in the same manner as other witnesses, except as 
 hereinafter excepted." ^ The exceptions are so similar to 
 some we have already examined,^ that it would be a waste 
 of space to repeat them here. 
 
 Under the inhibition against testimony as to transactions 
 and communications with deceased persons, it has been held 
 that if the personal representative, either on his own offer or 
 on the call of his co-plaintiff or co-defendant, give in evidence, 
 adversely to his opponent, any conversation he may have had 
 with the latter, in reference to the cause of action or con- 
 troversy, then the other party, likewise on his own offer, or 
 on the call of his co-plaintiff or co-defendant, may testify in 
 respect to such conversations or admissions, by giving such 
 evidence as will fairly tend to contradict, explain, or modify 
 them ; but beyond this the latter cannot go.^ And the testi- 
 mony of one party taken prior to the death of the other, and 
 admissible when taken, is not rendered inadmissible by the 
 decease of the other party.* So, also, where the transaction 
 between the witness and the deceased person is only inci- 
 dentally involved, the witness is competent.^ And the action 
 being by a corporation against the executor of one deceased, 
 a stockholder in the plaintiff, is not deemed a party to the 
 action within the statute.^ The statute providing that where 
 one of two original parties to a contract is dead, the other 
 cannot testify, on his own offer, in an action on the contract, 
 applies to an agent who contracts in his own name, without 
 disclosing his agency;''' and to the administrator defendant, . 
 where the estate of one of two defendants, both dead, is 
 sued.^ But the statute was held not to apply to the parties 
 to a contract made with a partnership, simply because one of 
 the partners, who was a non-resident and not actively en- 
 gaged in the business, had died since the contract was made.^ 
 Nor to parties interested as devisees, so as to preclude them 
 
 1 Rev. Code, 1878, p. 749, § 1. « Downes v. Maryland &c. E. E. 
 
 2 Supra, § 103, p. 159. Co., 37 Md. 100. 
 
 3 Johnson v. Heald, 38 Md. 352. ' Stanford v. Horwitz, 49 Md. 625. 
 * Armitage v. Snowden, 41 Md. 119. 8 Orendorff v. Utz, 48 Md. 298. 
 
 ^ Diffenback v. New York Life Ins. ° Hardy y. Chesapeake Bank, 51 Md. 
 Co., 61 Md. 370. 562. 
 
§ 119.] OPERATION OF ENABLING STATUTES. 1 91 
 
 from testifying adversely to a claim made by the executor 
 for services rendered the testator.^ Nor to a mortgagor, the 
 mortgagee being dead, in a contest between the holders of 
 two mortgages, to determine the question of priority.^ Nor 
 to a widow, in a proceeding to set aside a pro confesso decree 
 of sale of land, under a deed of trust alleged by her to have 
 been executed by her under duress of threats by her 
 husband.^ 
 
 § 119. Massachusetts. — "No person of sufficient under- 
 standing, whether a party or otherwise, shall be excluded 
 from giving evidence as a witness in any proceeding, civil or 
 criminal, in court, or before a person having authority to re- 
 ceive evidence, except in the following cases : (1) Neither 
 husband nor wife shall be allowed to testify as to private 
 conversations with each other. (2) Neither husband nor wife 
 shall be compelled to be a witness on any trial upon an 
 indictment, complaint, or other criminal proceeding, against 
 the other. (3) In the trial of all indictments, complaints, 
 and other proceedings against persons charged with the 
 commission of crimes or offences, a person so charged shall, 
 at his own request, but not otherwise, be deemed a compe- 
 tent witness ; and his neglect or refusal to testify shall not 
 create any presumption against him."* 
 
 " The conviction of a witness of a crime may be shown, to 
 affect his credibility."^ 
 
 The first paragraph of section 18, above quoted, together 
 with the substance of section 19, were enacted as earlj^ as 
 1860.^ Personal representatives were made competent in 
 1864.'' Very many decisions appear in the books interpret- 
 ing and applying these earlier provisions, but the present 
 condition of the written law of this State is so plain and 
 
 1 Bantz V. Bantz, 52 Md. 080. v. Carroll, 4 Har. & J. 518; Hatton v. 
 
 2 Swartz V. Chickering, 58 Md. 290. McClish, Md. 407 ; Broadbent i . 
 See also Wright v. Gilbert, 51 Md. State, 7 Md. 410; Morrison v. Ham- 
 146; Spencer v. TrafEord, 42 Md. 1. mond, 27 Md. 604; Mason v. Poulson, 
 
 3 Washington First Nat. Bank v. 43 Md. 101. 
 
 .Eccleston, 48 Md. 145. [Alrey and ^ Pub. Stat. 1882, ch. 169, p. 087, 
 
 Robinson, 33., dissenting.] S. P. San- § IS. 
 
 born V. Lang, 41 Md. 107. But ^ Ibid. § 19. 
 
 see Redgrave v. Redgrave, 38 Md. " Gen. Stat. 1860, ch. 131, p. 672, 
 
 93. § 13. 
 
 Eor decisions under earlier statutes, "Laws 1864, p. 291, ch. 304, § 1. 
 
 now superseded, see Greenleaf o. See also Laws 1865, p. 609, ch. 207, 
 
 Brith, 5 Pet. (U. S.) 132; Ilayward §§ 1,2. 
 
192 
 
 COMPETENCY. 
 
 [chap. VIII. 
 
 simple, and so completely sweeps away all the common-law 
 barriers surrounding the witness-box, that most of these 
 cases have become, in this respect, completely obsolete and 
 valueless. Such of them, however, as are deemed of any utility 
 as developing the gradual and steady endeavor of the courts 
 to conform to the repeated changes made by statute in the 
 previous law, are listed below.^ 
 
 § 120. Michigan. — " No person shall be excluded from 
 giving evidence in any matter, civil or criminal, by reason 
 of crime or for any interest of such person in the matter, 
 suit, or proceeding in question, or in the event of such mat- 
 ter, suit, or proceeding, in Avhich siich testimony may be 
 offered, or by reason of marital or other relationship to any 
 party thereto ; but such interest, relationship, or conviction 
 of crime, may be shown for the purpose of drawing in ques- 
 tion the credibility of such witness, except as is hereinafter 
 provided." ^ 
 
 1 As to the competency of parties 
 to the litigation, generally. Chase 
 V. Breed, 5 Gray, 440 ; Fischer u. 
 Morse, 9 Id. 440 ; Hosmer v. Warner, 
 15 Id. 40; Smith u. Smith, 1 Allen, 
 231 ; Kendall v. May, 10 Id. 59 ; Gran- 
 ger V. Basset, 98 Mass. 402. 
 
 Right to examine adverse partij on in- 
 terrogatories. Eobbins v. Ilolman, 11 
 Gush. 20; Sheldon v. Kendall, Id. 74; 
 Townsend v. Gibhs, Id. 158 ; Wilson 
 V. Webber, 2 Gray, 558 ; Hubbard v. 
 Hubbard, 6 Id. 302; Kennedy v. 
 Gooding, 7 Id. 417; Amherst &c. R. 
 K. Co. V. Watson, 8 Id. 529 ; Foss v. 
 Nutting, 14 Id. 484; Hobbs v. Stone, 
 5 Allen, 109. 
 
 Competency of parties in cases of usury. 
 King V. Howard, 1 Cush. 137 ; Gifford 
 V. Whitcomb, 9 Id. 482; Cutler u. 
 Barbier, 4 Gray, 588. 
 
 Parties to suits on hills and notes. 
 Reed v. Boardman, 20 Pick. 441 ; 
 Bacon v. Robinson, 7 Cush. 579; Ken- 
 dall V. Robertson, 12 Id. 156 ; Byrne 
 <.. McDonald, 1 Allen, 293 ; Hubbard 
 V. Chapin, 2 Id. 328. 
 
 Interested witness not joined, not served, 
 nr defaulted. Bull !■. Strong, 8 Mete. 
 8 ; Jennings v. Fisher, 7 Cush. 239 ; 
 Palmer v. White, 10 Id. 321 ; Morgan 
 V. Stone, 11 Id. 253. 
 
 Kffect of death of one party on compe- 
 tency of opposite party. Palmer v. Kel- 
 logg, 11 Gray, 27 ; Bacon v. Williams, 
 Id. 222 ; Lincoln v. Lincoln, 12 Id. 45 ; 
 Jones V. Wolcott, 15 Id. 541 ; Pettin- 
 gill V. Porter, 3 Allen, 349; Green v. 
 Gould, Id. 465 ; Gay v. Gay, 5 Id. 157 ; 
 Doody V. Pierce, 9 Id. 141 ; Farrelly 
 V. Ladd, 10 Id. 127; Brown v. Bright- 
 man, 11 Id. 226. 
 
 Competency of the personal represen- 
 tative. Dascomb t'. Davis, 5 Mete. 
 335 ; Wood p. Gannett, 4 Gray, 450 ; 
 Baxter v. Abbott, 7 Id. 71 ; Blood v. 
 French, 9 Id. 197; Howe v. Merrick, 
 11 Id. 129. 
 
 Husband or wife, or widow. Barber 
 V. Goddard, 9 Gray, 141; Snell v. 
 Westport, Id. 321 ; Ayres v. Aj'res, H 
 Id. 130; Little v. Little, 13 Id. 264; 
 Litchfield v. Merritt, 102 Mass. 
 520. 
 
 Surviving partners. Hayward u. 
 French, 12 Gray, 453; Brady v. 
 Brady, 8 Allen, 101. 
 
 Joint contractors. Goss v. Austin, 11 
 Allen, 525. 
 
 Trustees. Brooks v. Tarbell, 103 
 Mass. 496. 
 
 2 Mich. Comp. L. § 4339, as amended 
 by Laws 1861, p. 168, No. 125㤠1. 
 
§ 120.] OPERATION OP ENABLING STATUTES. 193 
 
 "On the trial of any issue joined, or any matter, suit, or 
 proceeding, in any court, or on any inquiry arising in any 
 suit or proceeding in any court, or before any officer or per- 
 son having hj law, or by consent of parties, authority to hear, 
 receive, and examine evidence, the parties to any such suit or 
 proceeding named in the record, and persons for whose bene- 
 fit such suit or proceeding is prosecuted or defended, may be 
 witnesses therein in their own behalf or otherwise, in the 
 same manner as other witnesses, except as hereinafter other- 
 wise provided, and the deposition or any such party or per- 
 son may be taken and used in evidence under the rules and 
 statutes governing depositions, and any such party or person 
 may be proceeded against, and compelled to attend and 
 testify, as is provided by law for other witnesses. Notliing 
 in this act shall be construed as giving the right to compel 
 a defendant in criminal cases to testify, but any such defen- 
 dant shall be at libertj^ to make a statement to the court or 
 jury, and may be cross-examined upon any such statement." ^ 
 
 "That when a suit or proceeding is prosecuted or de- 
 fended by the representative of a deceased person, the oppo- 
 site party, if examined as a witness on his own behalf, shall 
 not be admitted to testify at all in relation to matters which, 
 if true, must have been equally within the knowledge of 
 such deceased person." ^ 
 
 "A husband shall not be examined as a witness for or 
 against his wife, without her consent, nor a wife for or against 
 her husband, without his consent; nor shall either, during 
 the marriage or afterwards, be, without the consent of both, 
 examined as to any communication made by one to the other 
 during the marriage ; but in any action or proceeding insti- 
 tuted by the husband or wife in consequence of adultery, 
 the husband and wife shall not be competent to testify." ^ 
 
 The above statute prescribes the only rule as to the com- 
 petency and examination of parties as witnesses.* And 
 under section 4342, the testimony of one who was formerly 
 the defendant's wife, but who has obtained a divorce, as to a 
 transaction between defendant and a third person, is not 
 within the prohibition as a "communication made by one 
 to the other during the marriage." ^ 
 
 1 § 4340, as amended by Id. § 2. ^ Gooderich v. Allen, 19 Mich. 250. 
 
 2 § 4341, as amended by Id. § 3. ^ Herrick v. Odell, 29 Mich. 47. For 
 
 3 § 4342, as amended by Id. § 4. decisions under earlier statutes, see 
 
194 COMPETENCY. [CHAP. Till. 
 
 In construing section 4341, as amended in 1861, the courts 
 have held the admissibihty of the surviving party's testimony 
 not to depend upon the degree of knowledge as to the 
 transaction possessed by the deceased person ; but that such 
 testimony is to be confined strictly to facts not within the 
 knowledge of the deceased.^ Whether that section has any 
 application to written documents, quaere ? It has not where 
 the representatives have the means of proving the document 
 by independent evidence.^ 
 
 This section was virtually re-enacted in 1871,^ and as so 
 re-enacted was held not to apply to what occurred in the 
 absence of the deceased, such as the forwarding of goods to 
 him while out of the State, their value, cost of transportation, 
 etc., and matters not specially or at all known to the de- 
 ceased.* Or to controversies with third persons acting in 
 their own right, as purchasers during the life of the deceased, 
 and not taking by any post-mortem estate.^ Or where the 
 transaction was between the surviving party on one side, 
 and a surviving agent of the decedent on the other, and in 
 the presence of other persons, but not of the defcedent.^ Or 
 to actions against a private corporation, so as to preclude 
 the corporators from testifying to matters equally within the 
 knowledge of the plaintiff's testator or intestate.'^ Or to a 
 case where the beneficiary under the will of the heir is the 
 party on one side, and the administrators of the estate are 
 the parties on the other side.^ 
 
 On the other hand, the suit being between the administra- 
 tor and a son of the deceased, involving the title to personal 
 property claimed by the administrator to belong to the es- 
 tate, the son is precluded from testifying, as to conversations 
 between himself and his father, in the latter's lifetime.^ And 
 the inhibition applies to oral evidence of the contents of lost 
 letters, which passed between the party and the deceased.^" 
 It applies to an heir who sues as administratrix of another 
 estate, but not to an heir and distributee who has assigned 
 
 Howard v. Palmer, Walk. 391 ; Brooks ■* Wheeler v. Arnold, 30 Mich. 304. 
 
 V. Intyre, 4 Mich. 316 ; McBride v. ^ Twiss v. George, 33 Mich. 253. 
 
 Cicotte, Id. 478 ; Hogan v. Sherman, " Ward v. Ward, 37 Mich. 253. 
 
 5 Id. 60. ' Rust V. Bennett, 39 Mich. 521. 
 
 1 Kimball v. Kimball, 10 Mich. 211 8 Mower's Appeal, 48 Mich. 441. 
 
 2 Moulton V. Mason, 21 Mich. 364. » Chambers v. Hill, 34 Mich. 523. 
 
 » Comp. L. 1871, § 5968. i" Schratz v. Schratz, 35 Mich. 485. 
 
§ 121. J OPERATION- OF ENABLING STATUTES. 195 
 
 her claim, and is not interested in the event of the suit.^ So, 
 also, it applies where the testimony of the surviving party is 
 introduced in order to supplement that of other persons, in- 
 sufficient in itself to establish a case.^ And to the case of a 
 third person who intervenes as claimant of the note sued on 
 by the representative, and takes upon himself the defence of 
 the action.^ 
 
 Tlie disability imposed upon the surviving party is not 
 removed by the fact that third persons were present, but 
 knew nothing of vital facts of the transaction. Thus, where 
 one having a demand against a decedent for money claimed to 
 have been loaned, presented witnesses who were present and 
 saw money paid, but knew nothing of the circumstances or 
 transaction except the mere passing of the money, it was 
 held, after reviewing the previous decisions, that the sur- 
 vivor was not competent to testify in explanation of the pay- 
 ment, and that it was a loan.* 
 
 But where a party whose testimony, if objected to, would 
 be excluded under the provisions of the statute, is giving tes- 
 timony in a cause, and the opposite party calls out facts equally 
 within the knowledge of the deceased, and afterwards seeks to 
 prove the statements so made under oath in a controversy 
 between the same parties as admissions, he must be held to 
 have waived the inhibition of the statute, and the witness may 
 testify fully in respect to the subject-matter of the admission, 
 although it be equally within the knowledge of the deceased.^ 
 
 § 121. Minnesota. — "All persons, except as hereinafter 
 provided, having the power and faculty to perceive, and 
 make known their perceptions to others, may be witnesses ; 
 neither parties nor other persons who have an interest in the 
 event of an action are excluded, nor those who have been 
 convicted of crime, nor persons on account of their religious 
 opinions or belief, although, in every case, the credibility of 
 of the witnesses may be drawn in question. And on the 
 trial of all indictments, complaints, and other proceedings 
 against persons charged with the commission of crimes or 
 offences, the person so charged shall, at his request, but not 
 
 1 Howard v. Patrick, 38 Mich. 795. * Downey v. Andrus, supra, followed 
 
 2 Downey v. Andrus, 43 Mich. 65 ; in Chadwiek v. Chadwiok, 18 Id. 
 6. c, 4 N. W. Rep. 628. 350. 
 
 8 Bachelder v. Brown, 47 Mich. 366, 6 Smith's Appeal, 18 N. W. Eep. 195. 
 Campbell, J., dissenting. 
 
196 COMPETENCY. [CHAP. VIII. 
 
 otherwise, be deemed a competent witness; nor shall the 
 neglect or refusal to testify create any presumption against 
 the defendant, nor shall such neglect be alluded to or 
 commented upon by the prosecuting attorney or by the 
 court." 1 
 
 " It shall not be competent for any party to an action, or 
 person interested in the event thereof, to give evidence 
 therein, of or concerning any conversation with, or admis- 
 sion of, a deceased or insane party or person, relative to 
 any matter at issue between the parties."^ 
 
 "The following persons are not competent to testify in 
 any action or proceeding. (1) Those who are of unsound 
 mind, or intoxicated, at the time of their production for ex- 
 amination. (2) Children under ten years of age who appear 
 incapable of receiving just impressions of the facts respecting 
 which they are examined, or of relating them truly." ^ 
 
 Under section 8 it has been held that a party or person 
 interested may testify as to any acts of a deceased or insane 
 person, although such acts may have in law the effect of 
 admissions. It is only as to conversations or oral admissions 
 that the evidence is excluded.* Where the contract in suit 
 Avas made by an agent of the deceased, and the agent has 
 testified, the other party to the contract is competent.^ 
 
 The disqualifying interest which will exclude the witness is 
 such an interest only in the event of an action or proceeding 
 that the witness having it will either gain or lose by the direct 
 legal operation of the judgment therein obtained, or may be 
 prejudiced in some right by the use of the judgment as evi- 
 dence for or against him in some other action or proceeding. 
 So, where, in a proceeding by an administrator de bonis non 
 against an administratrix who had been removed, for a final 
 settlement of her accounts, it becomes collaterally a material 
 question whether a partnership existed between a certain 
 party and the decedent, such party is a competent witness 
 touching conversations and transactions between him and 
 decedent tending to show that fact, when the witness is 
 neither a party nor in privity with either of the parties to 
 
 1 Stat. 1878, p. 792, § 7. * Chadwick v. Cornish, 26 Minn. 28. 
 
 2 Ibid. § 8. See Griswold v. Edson, ^ McNab v. Stewart, 12 Minn. 407. 
 21 N. W. Rep. 475. See also Jolmson v. Coles, 21 Id. 108 ; 
 
 3 Ibid. § 9. Marvin v. Butcher, 26 Id. 391. 
 
§ 123. J OPERATION OF ENABLING STATUTES. 197 
 
 the proceeding, and has no interest in the estate as next of 
 kin, heir, creditor, or otherwise.-^ 
 
 § 122. Mississippi. — " No person, whether a party to the 
 suit or otherwise, shall be incompetent to give evidence in 
 any suit at law or in equity, by reason of any interest in the 
 result thereof, or in the record as an instrument of evidence 
 iu other suits ; and the court or jury shall give such weight 
 to the testimony of parties and interested witnesses, as iu 
 view of the situation of the witness, and other circumstances, 
 it may be fairly entitled to. Any party may, by subpoena, 
 as in other cases, compel any other party to the suit to appear 
 and give evidence." ^ 
 
 " No conviction of any person for any offence, except per- 
 jury, and subornation of perjury, shall disqualify such person 
 as a witness, but such conviction may be given in evidence 
 to impeach his credibility. No person convicted of perjury 
 or subornation of perjury, shall afterwards be a competent 
 witness in any case, although pardoned or punished for the 
 same."^ 
 
 " No person shall be incompetent as a witness because of 
 defect of religious belief."* • 
 
 Under section 1600, a person under sentence of death for 
 murder is a competent witness. The word " conviction " in 
 that section includes sentence.^ 
 
 § 123. Missouri. — " No person shall be disqualified as a 
 witness in any civil suit or proceeding, at law or in equity, by 
 reason of his interest in the event of the same as a party or 
 
 1 In re Butcher, 4 N. W. Rep. 6857 Fennell v. McGowan, 58 Id. 201 ; and 
 
 2 Rev. Code, 1880, § 1599. the following, where the testimony 
 8 Ihid. § 1600. was rejected : Griffin c. Lower, 37 
 » Ibid. § 1604. Miss. 458 ; Otey v. McAfee, 38 Id. 
 6 Keithler v. State, 10 Sm. &. M. 192. 348 ; Lamar v. "Williams, 39 Id. 342 ; 
 As to the right of one party or an Wood v. Stafford, 50 Id. 370 ; Jacks 
 
 Interested witness to testify in support v. Bridewell, 51 Id. 881 ; Rushing v.. 
 of his own claim in an action prose- Rushing, 52 Id. 329; Jones v. Sher- 
 cuted or defended by the personal man, 56 Id. 559 ; Duncan v. Gerdine, 
 representatives of a deceased adver- 59 Id. 550 ; Troup v. Price, 55 Id. 278. 
 sary, see the following cases, where In suits by or against sunnving 
 the competency of the witness was partners, see Paler v. Jordan, 44 Miss. 
 sustained. Witherspoon v. Blewlett, 283 ; McCutchin v. Rice, 56 Id. 455. 
 47 Miss. 570 ; Stadeker v. Jones, 52 When the husband, wife, or widom 
 Id. 729; Love v. Stone, 50 Id. 449; may testify in such cases, see Whit- 
 Rothschild V. Hatch, 54 Id. 554 ; Mit- field v. Whitfield, 44 Miss. 254; Rush- 
 chell V. Savings Inst., 56 Id. 444 ; ing v. Rushing, 52 Id. 329; Buckingham 
 Gordon v. McEachin, 57 Id. 834; v. Wesson, 54 Id. 526. 
 
198 COMPETENCY. [CHAP. Tin. 
 
 otherwise, but such interest may be sliowu for the purpose of 
 affecting his credibility : provided, that in actions where one 
 of the original parties to the contract or cause of action in 
 issue and on trial is dead, or is shown to the court to be 
 insane, the other party shall not be admitted to testify in his 
 own favor, and where an executor or administrator is a party, 
 tlie other party shall not be admitted to testify in his own 
 favor, unless the contract in issue was originally made with a 
 person who is living and competent to testify, except as to 
 such acts and contracts as have been done or made since the 
 probate of the will or the appointment of the administrator : 
 provided, further, that in actions for the recovery of any sum 
 or balance due on account, and when the matter at issue and 
 on trial is proper matter of book account, the party living 
 may be a witness in his own favor, so far as to prove in 
 whose handwriting his charges are, and when made, and no 
 further." i 
 
 " Any party to any civil action or proceeding may compel 
 any adverse party, or any person for whose immediate and 
 adverse benefit such action or proceeding is instituted, prose- 
 cuted, or defended, to testify as a witness in his behalf, in the 
 same manner and subject to the same rules as other witnesses : 
 provided, that the party so called to testify may be examined 
 by the opposite party, under the rules applicable to the cross- 
 examination of witnesses." ^ 
 
 "No married woman shall be disqualified as a witness in 
 any civil suit or proceeding prosecuted in the name of or 
 against her husband, whether joined or not with her husband 
 as a party, in the following cases, to wit : first, in actions upon 
 policies of insurance of property, so far as relates to the amount 
 and value of the property alleged to be injured or destroyed ; 
 second, in actions against carriers, so far as relates to the loss 
 of property and the amount and value thereof ; third, in all 
 matters of business transactions when the transaction was had 
 and conducted by such married woman as the agent of her 
 husband ; and no married man shall be disqualified as a wit- 
 ness in any such civil suit or proceeding prosecuted in the 
 name of or against his wife, whether he be joined with her or 
 not as a party, when such suit or proceeding is based upon, 
 
 1 Eev. Stat. 1879, § 4010. = Ibid. § 4012. 
 
§ 123.] OPEEATION OP ENABLING STATUTES. 199 
 
 grows out of, or is connected with, any matter of business or 
 business transaction, where the transaction or business was 
 had with or was conducted by such married man as the agent 
 of his wife : provided, that nothing in this section shall be 
 construed to authorize or permit any married woman, while 
 the relation exists, or subsequently, to testify to any admis- 
 sion or conversations of her husband, whether made to herself 
 or to third parties."^ 
 
 " The following persons shall be incompetent to testify : 
 first, a person of unsound mind at the time of his production 
 for examination ; second, a child under ten years of age, who 
 appears incapable of receiving just impressions, of the facts 
 respecting which they are examined, or of relating them 
 truly ; third, an attorney concerning any communication made 
 to him by his client in that relation, or his advice thereon, 
 without the consent of such client ; fourth, a minister of the 
 gospel or priest of any denomination, concerning a confession 
 made to him in his professional character, in the course of 
 discipline enjoined by the rules of practice of such denomina- 
 tion ; fifth, a physician or surgeon, concerning any informa- 
 tion which he may have acquired from any patient while 
 attending him in a professional character, and which informa- 
 tion was necessary to enable him to prescribe for such patient 
 as a physician, or do any act for him as a surgeon." ^ 
 
 As early as 18T0 it was held that the provision forbidding 
 a party to testify when it is shown that one of the original 
 parties to the contract or cause of action in issue and on trial, 
 is dead, etc., relates wholly to persons who are parties to the 
 issue which is on trial, and not to those who were parties to 
 the original contract merely.^ The provision does not exclude 
 the children of the living party;* nor the beneficiaries under 
 
 1 Ibid. § 4014. Madison v. Wells, 14 Mo. 360 ; the 
 
 2 Ibid. § 4017. witness was competent unless a party 
 As to the right of one party to call to the action, or a person for whose 
 
 and examine the adverse party, under immediate benefit it was prosecuted 
 
 statutes prior to the passage of § 4012, or defended. Bates v. The Madison, 
 
 see Musick v. Musick, 7 Mo. 495 ; 18 Mo. 99 ; Mudd v. Bast, 34 Mo. 465. 
 
 Levy V. Hawley, 8 Mo. 510 ; Grigg v. See also the following cases : Page i'. 
 
 Bodrio, 9 Mo. 223 ; Christie v. Home, Butler, 15 Mo. 73 ; Young v. Crough- 
 
 24 Mo. 242 ; Fagan v. Long, 30 Mo. ton, 17 Mo. 367 ; Gamier v. Lebeau, 
 
 222 ; Pratte u. Coffman, 33 Mo. 71. 30 Mo. 229 ; Scheifer v. Kahlman, Id. 
 
 Before this section was passed, under 232. 
 
 the practice act, interest in the event ' Looker t-. Davis, 47 Mo. 140. 
 
 went to the credibility only. The * Anderson v. Hance, 49 Mo. 159. 
 
200 COMPETENCY. [chap. vni. 
 
 a will, in proceedings to test its validity ; i nor, the suit being 
 on a series of contracts, does it disqualify a party making 
 some of the contracts with one since dead, from testifying to 
 other transactions occurring subsequent to his decease.^ 
 
 The provision does not apply to transactions with third per- 
 sons to which the deceased or insane person was a stranger.^ 
 The party is always competent to testify as to transactions 
 with the deceased person's representative, after his decease.* 
 The effect of the provision is that in a case where a party 
 might testify in his own behalf, at common law, he may still 
 do so notwithstanding the other party's death ; the proposed 
 witness stands, in regard to testifying, precisely as if the statute 
 allowing parties to testify had not been enacted.^ When the 
 transaction with the deceased person comes in question in an 
 action between the proposed witness and a stranger, testimony 
 as to such transaction is competent.^ And when one of two 
 joint contractors has died, this does not disqualify the party 
 with whom they contracted from testifying as to the contract.^ 
 
 Where the proposed testimony does not directly relate to 
 the contract in issue, the party may testify even though the 
 other party to the contract be dead.^ 
 
 § 124. Montana. — " No person shall be disqualified as a 
 witness in any action or proceeding on account of his opin- 
 ion on matters of religious belief, or by reason of his interest 
 in the event of the action or proceeding, as a party thereto or 
 otherwise ; but the party or parties thereto, and the person 
 in whose behalf such action or proceeding may be brought 
 or defended, shall, except as hereinafter excepted, be compe- 
 tent and compellable to give evidence either viva voce or by 
 deposition, or upon a commission, in the same manner and 
 subject to the same rules of examination as any other wit- 
 
 ' Garvin u. ■Williams, 50 Mo. 201. State v. Huff, Id. 288; Angell t. 
 
 2 Poe V. Domic, 54 Mo. 119. Hester, 64 Mo. 142; Hisaw v. Sigler, 
 
 8 Martin v. Jones, 59 Mo. 181. 68 Mo. 449; Smith v. Witton, 69 Mo. 
 
 ' McGlothlin v. Henry, 59 Mo. 213; 458; Lewis v. Weiseham, 1 Mo. App. 
 
 Wade V. Hardy, 75 Mo. 394. 222; Million v. Ohnsorg, 10 Id. 432. 
 
 ^ Angell V. Hester, 64 Mo. 142. In actions respecting real propertij, sec 
 
 6 Bradley v. West, 68 Mo. 69. Johnson v. Quarles, 46 Mo. 423; Mar- 
 
 ' Faulkerson v. Thornton, 68 Mo. tin .;. Jones, 72 Mo. 23 ; Hughes v. 
 
 468 ; Nugent v. Curran, 77 Mo. 323. Israel, 73 Mo. 538. To what extent 
 
 * Ring V. Jamison, 2 Mo. App. 584. the widow of the deceased person is 
 
 For further application of the above competent, see Scroggin v. Holland, 
 
 principles in actions on hills and notes, 16 Mo. 419 ; Hanley v. Life Assoc, of 
 
 see Amonett v. Montague, 63 Mo. 201 ; America, 4 Mo. App. 253. 
 
§ 125.] OPEEATION OF ENABLING STATUTES. 201 
 
 ness, on behalf of himself or either or any of the parties to 
 the action or proceeding." ^ The exceptions are substan- 
 tially the same as some of those formerly examined,^ and 
 that with respect to testimony as to transactions with de- 
 ceased persons has been construed to leave the rule of 
 competency as it was at common law.^ 
 
 §125. Nebraska. — "Every human being of sufficient 
 capacity to understand the obligation of an oath, is a compe- 
 tent witness in all cases, civil and criminal, except as other- 
 wise herein declared. The following persons shall be 
 incompetent to testify : first, persons of unsound mind at the 
 time of their production; second, Indians and negroes who 
 appear incapable of receiving just impressions of the facts 
 respecting which they are examined or of relating them 
 intelligently and truly ; third, husband and wife concerning 
 any communication made by one to the other during mar- 
 riage, whether called as a witness while that relation subsists 
 or afterward; fourth, an attorney, concerning any commu- 
 nication made to him by his client in that relation, or his 
 advice thereon, without the client's consent in open court or 
 in writings produced in court ; fifth, a clergyman or priest, 
 concerning any confession made to him in his professional 
 character in the course of discipline enjoined by the church 
 to which he belongs, without the consent of the person 
 making the confession." * 
 
 " No person having a direct legal interest in the result of 
 any civil cause or proceeding shall be a competent witness 
 therein, when the adverse party is an executor, administrator, 
 or legal representative of a deceased person, unless the testi- 
 mony of such deceased person shall have been taken during 
 his lifetime, and is to be read in evidence in such cause or 
 proceeding."^ 
 
 The word " representative " in section 329, is held to in- 
 clude any person or party who has succeeded to the rights 
 of the deceased, whether by purchase, descent, or operation 
 of law.^ A liability for costs creates a sufficient interest to 
 exclude the witness ; "^ and a person precluded by the statute 
 
 1 Laws 1872, § 444. 6 jb;^^ p. 575^ § 329. 
 
 2 Supra, § 103, p. 159. « Wamsley v. Crook, 3 Neb. 344. 
 
 3 Shober v. Jack, 3 Mont. 351. ' Eansom v. Schmela, 13 Neb. 73; 
 ■1 Comp. L. 1883, p. 574, § 328. s. c, 12 N. W. Eep. 926. 
 
202 COMPETENCY. [chap. VIII. 
 
 from testifying against the representative cannot, by trans- 
 ferring his interest during the pendency of the action, remove 
 the disqualifi cation. 1 
 
 § 126. Nevada. — "No person shall be disqualified as a wit- 
 ness in any action or proceeding, on account of his opinions 
 on matters of religious belief, or by reason of his interest in 
 the event of the action or proceeding, as a party thereto or 
 otherwise ; but the party or parties thereto, and the person 
 on whose behalf such action or proceeding may be brought 
 or defended, shall, except as hereinafter excepted, be compe- 
 tent and be compellable to give evidence, either viva voce or 
 by deposition, or upon a commission, in the same manner, 
 and subject to the same rules of examination as other wit- 
 nesses, on behalf of himself or either or any of the parties to 
 the action or proceeding." ^ 
 
 § 127. New Hampshire. — " No person who believes in the 
 existence of a supreme being shall be excluded from testify- 
 ing on account of his opinions on matters of religion." ^ 
 
 " No person shall be excused or excluded from testifying 
 or giving his deposition in any civil cause by reason of his 
 interest therein, as a party or otherwise."^ 
 
 " Neither party shall testify in a cause when the adverse 
 party is an executor, or administrator, or an insane person, 
 unless the said executor, administrator, or the guardian of 
 the insane party elects to testify, except as provided in the 
 following section." ^ 
 
 "When it clearly appears to the court that injustice may 
 be done without the testimony of the party in such case, he 
 may be allowed to testify, and the ruling of the court, admit- 
 ting or rejecting his testimony, may be excepted to and 
 revised."'^ 
 
 "A husband and wife are competent witnesses for or 
 against each other, whether joined as parties or not, in all 
 cases both civil and criminal." " 
 
 1 Magemau v. Bell, 1.3 Neb. 247; Gloster, 13 Id. 279; Vesey v. Benton, 
 s. c, 13 N. W. Rep. 277. Id, 284; Higgs v. Hanson, Id. 356. 
 
 2 Comp. L. Vol. I. p. 405, § 1438. 3 Gen. Laws 1878, ch. 228, § 12 ; 
 The exceptions are the same as those Frie v. Buckingham, 59 N. H.219. 
 
 of Arizona, supra, § 101, p. 156. For de- * Thid. § 13. 
 
 cisions construing them, see Rice v. ^ Ibid. § 16. 
 
 Martin, 7 Sawy. (U. S.) 337; Roney « Ibid. § 17. 
 
 V. Ruckland, 4. Nev. 45 ; Hastings v. ' Ibid. § 20. 
 
§ 127.] OPEEATIOK OF ENABLING STATUTES. 203 
 
 " No person shall be incompetent to testify on account of 
 his Laving been convicted of an infamous crime, but the 
 record of such conviction may be used to affect his credit as 
 a witness."-' 
 
 Prior to the enactment of section 16, supra, a party was 
 held competent to testify notwithstanding the insanity of the 
 adverse party, the latter appearing by guardian ; ^ and even 
 an executor could be compelled to testify by the adverse 
 party, but in such a case such adverse party was not made 
 thereby a competent witness.^ Where the executor, being a 
 party, elects to testify in the cause, the court has no discre- 
 tionary power to reject the proffered testimony of the adverse 
 party, even though it relate to conversations between him- 
 self and the testator, of which the executor had no knowl- 
 edge, and which he could have no means of contradicting 
 or explaining.* But on the other hand, the party will not be 
 allowed to testify to matters which he claims were not within 
 the knowledge of the testator, without other proof that injus- 
 tice will otherwise be done.^ The safe guide and decisive 
 test in determining whether to allow the party to give evi- 
 dence, is found in the inquiry whether the deceased, if alive, 
 could testify to the same matters.^ In no event can the 
 representative testify to facts within the knowledge of the 
 deceased, in the prosecution of his own personal claim 
 against the estate he represents.'^ 
 
 The exclusion does not applj"- where the party would be 
 competent without the aid of the enabling statute ; * nor to 
 keep out testimony as to transactions and admissions arising 
 since the decease of the testator or intestate ;^ nor where both 
 parties are representatives of deceased persons.^" In one case 
 
 ' Ibid. § 27. For decisions as to the 2 Crawford v. Eobie, 42 N. H. 162. 
 
 competencjof^jartics, generally under See also Taylor v. Grand Trunk R. 
 
 earlier, and now obsolete statutes, see Co., 48 Id. 304. 
 
 Stevens v. Hall, 6 N. H. 508; State v. s Harvey v. Hilliard, 47 N. H. 551. 
 McGlynn, 34 Id. 422 ; Smith v. Balch, * Ballou v. Tilton, 52 N. H. 605. 
 40 Id. 363. As to competency of '■ Fosgate u. Thompson, 54 N. H. 
 
 corporate officers, see Dearborn v. Bos- 455. 
 
 ton &c. R. R. Co., 24 N. H. 179. Of « Hoit v. Russell, 56 N. H. 559. 
 defaulted defendant, see Bean v. Walker, ' Perkins v. Perkins, 58 N. H. 405. 
 38 N. H. 359. As to examining adverse ^ Page v. Whidden, 59 N. H. 507 ; 
 
 parti/ on jury trials, and interrogatories Pierce v. Burroughs, Id. 512; Snell v. 
 
 in chancery cases, see Lorejoy v. Parsons, Id. 521. 
 Jones, 30 N. H. 164; Patten v. Moore, » Brown v. Brown, 48 N. H. 90. 
 33 Id. 523. " Stearns v. Wright, 51 N. H. 600. 
 
204 COMPETENCr. [chap. VIII. 
 
 it is held that, the plaintiff being an executor, letters written 
 by the defendant as agent of the testator, and at his request, 
 were competent evidence as admissions made by the testator, 
 although the defendant himself could not testify.^ 
 
 § 128. New Jersey. — " That no person offered as a wit- 
 ness in any action or proceeding of a civil or criminal nature, 
 shall be excluded by reason of his having been convicted of 
 crime, but such conviction may be shown on the cross- 
 examination of the witness, or by the prpduction of the record 
 thereof, for the purpose of affecting his credit." ^ 
 
 " In all civil actions in any court of record in this State, 
 the parties thereto shall be admitted to be sworn and give 
 evidence therein, when called as Avitnesses by the adverse 
 party in such action ; and when any party is called as a 
 witness by the opposite party, he shall be subject to the same 
 rules as to examination and cross-examination as other wit- 
 nesses: provided, that no party to a suit shall be compelled 
 to be sworn or give evidence in any action brought to 
 recover a penalty or to enforce a forfeiture ; and provided, 
 also, that this section shall not apply to suits for divorce." ^ 
 
 " No person shall be disqualified as a witness in any suit or 
 proceeding, at law or in equity, hj reason of his or her 
 interest in the event of the same as a party or otherwise, but 
 such interest may be shown for the purpose of affecting his 
 or her credit ; provided, nevertheless, that no party shall be 
 sworn in any case when the opposite party is prohibited 
 by any legal disability from being sworn as a witness, or 
 either of the parties in a cause sue or be sued in a representa- 
 tive capacity, except as hereinafter provided." * 
 
 " A party to a suit in a representative capacity may be 
 admitted as a witness therein, and if called as a witness in his 
 own behalf, and admitted, the opposite party may in like 
 manner be admitted as a Avitness." ^ 
 
 " In any trial or inquiry in any suit, action, or proceeding 
 in any court, or before any person having by law or consent 
 of parties authority to examine witnesses or hear evidence, 
 the husband or wife of any person interested therein as a 
 party or otherwise, shall be competent and compellable to 
 
 1 Harriman v. Junes, 58 N. H. 328. * Tbid. § 3. 
 
 2 Rev. 1877, p. 378, § 1. = ibid. § 4. 
 8 Ibid. § 2. 
 
§ 128.] OPERATION OF ENABLING STATUTES. 205 
 
 give evidence the same as other witnesses, on behalf of any 
 party to such suit, action, or proceeding : provided, that 
 nothing herein shall render any husband or wife competent 
 or compellable to give evidence for or against the other in 
 any criminal action or proceeding, or in any action or 
 proceeding for divorce on account of adultery, except 
 to prove the fact of marriage, or in any action for criminal 
 conversation ; nor shall any husband or wife be compellable 
 to disclose any confidential communication made by one to 
 the other during the marriage." ^ 
 
 Section 4, supra, applies to actions pending at the time of 
 its passage,^ but under that section the adverse party will not 
 be permitted to be sworn, except Avhere the personal repre- 
 sentative has first been sworn and testified.^ The provision 
 applies where one of the parties dies pending the prosecution 
 of the action,* and the representative cannot testify for 
 himself on the trial of exceptions to his account with the 
 estate.^ 
 
 On the other hand, in replevin, where the defendant 
 pleads non cepit, and property in himself as administrator, 
 the defendant is not sued in a representative capacity, and 
 the plaintiff is a free witness in the case.^ So, where a 
 defendant who has no interest in the event is made a party, 
 he may testify, though the complainant sues in a representa- 
 tive capacity.'' The adverse party may call the representative 
 party as a witness, but this will not render such adverse 
 party competent.^ A surviving partner, when sued by an 
 executor, is a competent witness on questions not involving 
 
 i7?)i'c?. §5; Parker y. Thompson, 1 Giveans v. McMurtry, 1 C. E. Gr. 
 
 Vr. 311. As to the competency of 468. 
 
 parties, generally, under earlier stat- ^ Benson i'. Cox, 8 Stew. 87. 
 
 utes, see Handlong v. Barnes, 1 Vr. ^ Shepherd v. McClain, 3 C. E. Gr. 
 
 69; Leonard v. Sutphen, 3 Halst. Eq. 128; Walker ;;. Hill, 6 Id. 191. See 
 
 345 ; Lanning i'. Lanning, 2 C. E. Gr. also Montgomery v. Simpson, 4 Stew. 
 
 228. For the practice on examining 1. 
 
 adverse parties, issuing interrogatories, * Halstead v. Tyng, 2 Stew. 86. 
 
 etc., see Van Valkenberg v. Rahway * Smith v. Burnet, 7 Stew. 219 ; 
 
 Bank, 3 Zab. 583; Myers v. Hollings- s. c, 8 Id. 314. 
 
 worth, 2 Dutch. 186; Voorhees v. ' Hodge u. Coriell, 15 Vr. 456, Par- 
 Jones, 5 Id. 270. As to discover// of ker, J., dissenting. See also Holmes 
 books and papers, see Condict v. Wood, v. Chester, 12 C. E. Gr. 423. 
 1 Diitch. 319. When an order of the ' Harrison v. Johnson, 3 C. E. Gr. 
 court is necessary to examine a party, 420. 
 see Hewitt v. Crane, 2 Halst. Eq. 159; ^ Daw v. Vreeland, 3 Stew. 542. 
 
206 COMPETENCY, [CHAP. VIII. 
 
 any personal intercourse between the .witness and the 
 deceased.^ And in proceedings on a caveat, to establish 
 a will, the proponent (a beneficiary) may be a witness.^ 
 
 § 129. New Mexico. — In this Territory the provisions of 
 the United States Revised Statutes^ furnish the rules as to 
 the competency of witnesses, until the territorial legislature 
 pass a statute upon the subject, and the only decision found 
 by the writer is to the effect that a former administrator de 
 bonis non is a competent witness for one subsequently 
 appointed, in a suit relating to the estate, where such wit- 
 ness is not shown to be interested in the event of the suit.* 
 
 §130. New York. — (1) Early provisions and decisions. 
 Shortly after the passage of the Code of Procedure, by which 
 important changes were made in the common-law rules as to 
 the competency of witnesses, it was held that statutes mak- 
 ing competent parties to the record merely remove the for- 
 mer objection founded on the relation of the witness to the 
 suit. Witnesses incompetent from another cause — e.g., a 
 wife, an insane person — are not rendered competent by the 
 fact of being joined as parties.^ It was also held that the 
 removal of the disqualification of interest in the event, ren- 
 dered an agent competent as a witness against his principal, 
 though the effect of his evidence should be to discharge 
 himself and charge his principal.^ So, also, a surety in an 
 undertaking given to obtain a provisional remedy was held 
 not incompetent, he not being a person for whose benefit the 
 action was prosecuted or defended.^ 
 
 In chancery practice, a party could be examined on 
 obtaining an order for that purpose; ^ and in actions of a legal 
 character, on giving notice to the opposite party of his inten- 
 tion so to do, a party could be a witness in his own behalf.^ 
 So, also, a co-defendant was competent for those joined with 
 him ;^'' or, if defaulted, for the plaintiff, and against the other 
 
 ^ Besson v. Cox, 8 Stew. 87. ' Jessop v. Miller, 2 Abb. App. Dec. 
 
 2 Mackin v. Mackin, 10 Stew. 528. 449. 
 
 8 Supra, § 98. 8 Anonymous, 1 Barb. Ch. 408 ; 
 
 * Beall V. Territory, 1 New Mex. Hitchcock v. Skinner, HofEra. 21 ; 
 
 507. Ormsby v. Wood, Hopk. 229. 
 
 5 Pillow V. Bushnell, 4 How. Pr. 9. 9 Hinds v. Barton, 25 N. Y. 544 ; 
 
 S. P. Symonds v. Peck, 10 How. Pr. Bissell v. Hamlin, 3 Bosw. 383. 
 
 395; Eich t). Husson, 4 Sandf. 115. i" Parsons v. Pierce, 8 Barb. 055; 
 
 « Fenly v. Stewart, 5 Sandf. 101. City of New York t. Price, 4 Sandf. 
 
§ 130.] OPEEATION OP ENABLING STATUTES. 207 
 
 defendants ; ^ and the plaintiff could be called by the defend- 
 ant, and in case he testified to new matter beyond the point 
 to which he was called, the defendant could testify in answer 
 to such new matter.^ 
 
 It is profitless, however, at this time, to examine decisions 
 which interpreted sections of the Code of Procedure, which 
 have not been embodied in the Code of Civil Procedure, 
 or which have been expressly repealed.^ The only sections 
 of the former code relating to our subject proper, which are 
 still substantially the law, are §§ 396, 398, and 899, the first 
 two embodied in § 828, and the third in § 829 of the Code 
 of Civil Procedure. These we will now consider. 
 
 (2) Parties and persons interested made competent. Sec- 
 tion 396 of the Code of Procedure rendered competent 
 persons for whose immediate benefit an action was prosecuted 
 or defended, whether such person was a party or not ; and 
 section 398 removed altogether the disqualification of interest 
 in the event. Parties had been rendered competent by other 
 provisions. Both of these sections are now replaced by sec- 
 tion 828 of the Code of Civil Procedure, which reads as 
 follows : " Except as otherwise specially prescribed in this 
 title, a person shall not be excluded or excused from being a 
 witness, by reason of his or her interest in the event of an 
 action or special proceeding, or because he or she is a party 
 thereto ; or the husband or wife of a party thereto, or of a 
 person in whose behalf an action or special proceeding is 
 brought, prosecuted, opposed, or defended." 
 
 Under this provision it has been decided that in a proceed- 
 ing to prove a will, the executor named in it may testify ; * 
 
 616 ; Kilmer v. O'Hara, 1 Bosw. 601 ; see Davis v. Cayuga &c. R. R. Co., 10 
 
 Selkirk v. Waters, 5 How. Pr. 296 ; How. Pr. 330. Against corporations, see 
 
 Mechanics' &c. Bank v. Rider, Id. Pield v. New York &c. li. E. Co., 29 
 
 401. Barb. 176 ; Johnson v. Mcintosh, 31 Id. 
 
 1 Thompson «. Blanchard, 4 N. Y. 267; La Farge u. Exchange &o. Ins. Co., 
 303; Bank of Charleston u. Emeric, SBosw. 157; 22N. Y.352 ; Mottr. New 
 2 Sandf . 718. York, 2 Hilt. 358 ; Wallace v. New York, 
 
 2 Myers v. McCarthy, 2 Sandf. 399. Id. 440 ; Wright v. New York &c. E. E. 
 See also Richardson v. Wilkins, 19 Co., 28 Barb. 80 ; Goodyear v. Phoenix 
 Barb. 510. For applications of these &c. Co., 48 Id. 522. In proceedings 
 rulings in action upon bills and notes, under the mechanics' lien law, see Can- 
 see Evarts v. Palmer, 7 Barb. 178; non v. Van Wagner, 2 E. D. Smith, 590. 
 Ladue v. Van Vechten, 8 Id. 664; s Laws 1877, ch. 417, § 1. 
 Mechanics' &c. Bank v. Eider, 1 Code * Childrens' Aid Soc. v. Loveridge, 
 N. S. 61. Actions against carriers, 70 N. Y. 387. 
 
208 COMPETENCY. [CHAP. Vm. 
 
 in a suit by an executor to recover a debt due the estate, a 
 residuary legatee is competent ; i but that where a sheriff sues 
 for damages for wrongfully taking goods subject to a levy, 
 the execution plaintiff is not a competent witness for the 
 defendant.^ The testimony of the plaintiff alone, uncor- 
 roborated, and contradicted by two witnesses, is enough to 
 sustain a finding of fact,^ and it is error to refuse to submit 
 the cause, in such case, to the jury.* But the tribunal try- 
 ing the question of fact, whether it be the court, a referee, 
 or a jury, is not bound to take the testimony of an interested 
 witness as conclusive, even though it be uncontradicted: 
 such weight is to be given it as that tribunal shall see fit.^ 
 But a party who calls his adversary as a witness is bound by, 
 his testimony, both on the direct and cross examination, to 
 the same extent as he would be by the testimony of any 
 other witness called by him.^ 
 
 (3) When party or person interested cannot he examined 
 generally. " Upon the trial of an action or the hearing upon 
 the merits of a special proceeding, a party or person interested 
 in the event, or a person from, through, or under whom such 
 a party or interested person derives his interest or title, by 
 assignment or otherwise, shall not be examined as a witness, 
 in his own behalf or interest, or in behalf of the party suc- 
 ceeding to bis title or interest, against the e'xecutor, adminis- 
 trator, or survivor of a deceased person, or the committee of 
 a lunatic, or a person deriving his title or interest from, 
 through, or under a deceased person or lunatic, by assign- 
 ment or otherwise ; concerning a personal transaction or com- 
 munication between the witness and the deceased person or 
 lunatic ; except where the executor, administrator, survivor, 
 committee, or person so deriving title or interest is examined 
 in his own behalf, or the testimony of the lunatic or deceased 
 person is given in evidence concerning the same transaction 
 or communication. A person shall not be deemed interested 
 for the purposes of this section, by reason of being a stock- 
 
 1 Freeman c. Spalding, 12 N. Y. N. C. 356. S. P. Moody v. Pell, 2 Id. 
 373. 274. 
 
 2 Howland v. "Willetts, 9 N. Y. 170. i* McNulty v. Heard, 86 N. Y. 547 ; 
 
 3 Miller i>. Ins. Co. of North America, Nicholson v. Connor, 8 Daly, 212; 
 1 Abb. N. C. 470 ; Stillwell v. Car- Schintzer v. Adelson, Id. 269. 
 penter, 2 Id. 238. « Branch v. Levy, 11 Week. Dig. 
 
 * Hodge V. City of Buffalo, 1 Abb. 326. 
 
§ 130.] OPERATION OF ENABLING STATUTES. 209 
 
 holder or officer of any banking corporation which is a party 
 to the action or proceeding, or interested in the event 
 thereof." i 
 
 In construing tliese two sections, the courts have held that 
 the admissibility, in the eases mentioned, of testimony as to 
 transactions with, or declarations of, a deceased person, does 
 not depend upon the fact that at the time ^yhen it is offered, 
 there is some person living who can contradict it. On the 
 contrary, its admissibility depends on the nature of the trans- 
 action to which it relates.^ Where such testimony tends to 
 show that a transaction to which the deceased was a party 
 was usurious, it is incompetent.^ And testimony that an 
 alleged transaction or conversation between the witness and 
 the deceased never took place, is as inadmissible as testimony 
 explanatory of the transaction or conversation.* 
 
 On the other hand, one who sued a bank for a sum of 
 money that the bank had placed to her credit on her pre- 
 senting what purported, to be an order of a depositor, since 
 deceased, was allowed to testify to any material fact, although 
 consisting of personal transactions between herself and the 
 deceased.*^ So, also, where a widow made a verbal agreement 
 with a farm hand, that he should work the farm upon the 
 same terms on which he had worked it under a verbal agree- 
 ment with her deceased husband, in an action by the widow 
 to enforce the first mentioned agreement, the defendant was 
 permitted to show the particular terms of his agreement with 
 
 'Code Civ. Pro. § 829. The last terest; such construction haying been 
 
 sentence was added by amendment, given to § 399. See Richardson v. 
 
 by Laws 1881, ch. 703. This section, Warner, 13 Hun, 13 ; Gifford v. Saclcett, 
 
 barring unimportant changes in phrase- 15 Id. 79; Alexander v. Duteher, 70 
 
 ology, is substantially the same as § ^ N. Y. 385. Keeping in mind these 
 
 399 of the former code; except that two changes, cases decided while § 
 
 the introductory words, "Upon the 399 was in force are equally applicable 
 
 trial of an action or the liearing upon to this section, and will be cited as 
 
 the merits of a special proceeding " freely as though decided after the 
 
 were added, in order to prevent its enactment of § 829. 
 
 application to motions and other in- 2 fjatch v. Peugnet, 64 Barb. 189. 
 
 terlocutory proceedings ; and that the ^ Smith v. Cross, 90 N. Y. 549. 
 
 words, " in his own behalf or interest, » Haughey v. Wright, 12 Hun, 179 ; 
 
 or in behalf of the party succeeding Clark v. Smith, 46 Barb. 30 ; S. V. 
 
 to his title or interest " were added, in Maverick v. Marvel, 90 N. Y. C5(i. 
 
 order ,to prevent the section being See Wilkins v. Baker, 24 Hun, .32 ; 
 
 construed to incapacitate the witness Mosner v. Raulain, 66 Barb. 213. But 
 
 as well where he testified against, as see infra, subd. (9) of this section, 
 
 where he tried to further his own in- ^ Severn v. State Bank, 18 Hun, 228. 
 
210 COMPETENCY. [CHAP. VHI. 
 
 the deceased.^ In such cases as these the evidence is admitted 
 from. necessity, and to prevent a failure of justice; besides, it 
 will be seen, the action is not by or against the representatives 
 of the deceased. 
 
 Again, in an action against the survivor of two joint makers 
 of a note, the plaintiff may testify as to personal transactions 
 with the deceased maker.^ Even in actions against the rep- 
 resentatives of a decedent, the plaintiff may testify as to the 
 contents of an entry in the account-book of the deceased, in 
 his handwriting, which he swears he saw and read during the 
 lifetime of the deceased, the loss of the account-book being 
 first proved.^ So, also, a physician's books are admissible to 
 show services to a deceased, though relating to a personal 
 transaction, where the rendering of part of the services, and 
 the fact that the physician kept correct accounts, are proved 
 by other witnesses.* Even where the plaintiff is improperly 
 permitted to testify, in his own behalf, as to a personal trans- 
 action with deceased, the error is cured, if the defendant 
 afterwards puts in evidence the deposition of the deceased 
 taken before the trial.^ 
 
 (4) Who is deemed the personal representative of a deceased 
 person. Only the executors or administrators of the de- 
 ceased are deemed to be his representatives'; '' heirs are not his 
 representatives.'^ Nor is a foreign executor or administrator, 
 as he cannot sue here in his representative capacity.^ 
 
 (5) JVhat is a ^'■personal transaction or communication." 
 "Transactions" and "communications," as used in the statute, 
 include every method by which one person can derive any 
 impression or information from the conduct, condition, or 
 language of another.® The placing of money or property in 
 the hands of the deceased is a personal transaction with him, 
 "and the intent with which it was done accompanied and 
 characterized the transaction, and was an element thereof." ^^ 
 
 ' Titus V. O'Connor, 18 Hun, 373. ' Spaulding v. Hallenbeck, 39 Barb. 
 
 2 Sprague v. Swift, 28 Hun, 49. See 79 ; 35 N. Y. 204 ; Traphagen v. Trap- 
 
 infra, suhd. (12) of this section. hagen, 40 Barb. 537 ; Sanford v. San- 
 
 '3 Carroll v. Davis, 9 Abb. N. C. 60. ford, 5 Lans. 486; 61 Barb. 293. 
 
 « Wetmore v. Peck, 19 Alb. L. J. 400. ^ Buckingham v. Andrews, 34 Barb. 
 
 6 Trow V. Shannon, 8 Daly, 239; 434. 
 
 affirmed, 78 N. Y. 440, not noticing » Holcomb !).Holcorab,95N. Y.,310. 
 
 this point, however. See as to this w Tooley v. Bacon, 70 N. Y. 04. 
 
 infra, suhd. (16) of this section. Compaa-e Hill v. Ilecrmans, 17 Hun, 
 
 6 12 Abb. Pr. 1. 470. 
 
§ 130.] OPERATION OF ENABLING STATUTES. 211 
 
 So is the parting, by the holder, with the possession of the 
 note to the malcer, who afterwards dies.^ Or the supplying 
 of goods, and rendition of services to the deceased,^ as .by an 
 attorney, for instance.^ Or the making of notes by the 
 deceased to the order of, and indorsed by, the witness.* Turn- 
 ing towards the deceased person and addressing remarks to 
 him constitute a " personal communication " with him.^ And 
 the writer of letters to the deceased cannot testify, in an 
 action founded on such letters, by the administrator, against 
 him, that such letters were written, or that they were re- 
 ceived and retained without objection or reply. Such testi- 
 mony relates both to a "transaction" and a "communication" 
 between the witness and the deceased.^ 
 
 On the other hand, the acts of executing and publishing 
 the will, and request by the testator to a person present to 
 subscribe as a witness, do not constitute a " communication 
 or transaction " between the witness and the testator.'^ 
 
 (6) Who is an " assignor." One who indorses a nego- 
 tiable note * or check,^ or who transfers the same by delivery, 
 without indorsement,^" or even by a separate writing,!^ is not 
 regarded as an assignor of a thing in action in such a sense 
 that he may be a witness in his own behalf,^^ or so that after 
 lie has testified for the plaintiff, the defendant may testify as 
 to the same matter.^^ But in the case of a non-negotiable 
 note,^* such as a property note,^^ or a personal chattel, or thing 
 in action,^^ the transferror was held an " assignor " within the 
 provision. But the cases are not in harmony : thus the vendor 
 of personal property was held not to be an " assignor," ^'^ even 
 after the conversion of the property sold ; ^^ and the same was 
 
 ^ Van Gelder ». Van Gelder, 81 N. ' Anderson v. Busteed, 5 Duer, 
 
 Y. 625. See also Waver «. Waver, 15 485. 
 
 Hun, 277. " Watson v. Bailey, 2 Duer, 509; 
 
 2 Fisher v. Verplanck, 17 Hun, 150. Gardner v. Gordon, 3 Bosw. 369. 
 
 2 Freeman ti. Lawrence, 43 Superior, ^i Porter v. Potter, supra. 
 
 288. S. P. Somerville v. Crook, 9 '^ § 399. 
 
 Hun, 664. " But see Collins v. Knapp, 18 Barb. 
 
 * Strong V. Dean, 55 Barb. 337. 532. 
 
 ' Brague v. Lord, 67 N. Y. 495. " Jagoe v. AUeyn, 16 Barb. 480. 
 
 " Resseguie v. Mason, 58 Barb. 99. i^ 1 Bosw. 402. 
 
 ' Reeve v. Crosby, 3 Redf. 74. See ^^17 Barb. 538. 
 
 also Smith v. Sergeant, 4 Thomp. & " McGinn u.Worden, 3 E. D. Smith, 
 
 C. 684 ; Hill v. Heermans, 22 Hun ,455. 355. 
 
 8 Hicks V. Worth, 4 E. I), Smith, 18 Ibid.; Hall v. Robinson, 2 N. Y. 
 
 78; Porter v. Potter, 18 N. Y. 52. 293. 
 
212 COMPETENCY. [CHAP. VITI. 
 
 held of a surviving partner,^ and of a legatee.^ So it has 
 been decided that a conveyance of land is not an assignment 
 of a thing in action or • contract, even when made to enable 
 the grantor to become a witness in the suit.* 
 
 (7) Who is an " assignee." A plaintiff claiming personal 
 property under a contract of hiring made witli a deceased 
 person is not an " assignee " vs^ithin the meaning of section 
 399.* Nor is the indorsee of a note.^ A party is not to be 
 excluded as an assignee, unless he derived his title immediately 
 from the deceased in his lifetime. If he derived it mediately 
 or remotely from the deceased, he is, competent.^ Thus, the 
 assignee of a devisee is not incompetent to testify as to per- 
 sonal transactions between himself and the divisor.'^ 
 
 (8) Competence/ of assignor. In construing section 399 
 the courts held that one who had assigned a claim to his 
 creditor for a nominal consideration, remaining liable for the 
 Avliole debt, was a competent witness in an action by the as- 
 signee to recover the demand ; ^ that an assignor for the 
 benefit of creditors was competent in an action by the 
 assignee ; ^ and that an express covenant in the assignment, 
 that the claim assigned was due and payable, did not render 
 the assignor incompetent.^" But if the assignor of a thing in 
 action remained interested in the event of the suit, he was 
 incompetent ; ^^ and so was he if the assignment was merely 
 colorable ; ^^ but where the transfer was actually made, he 
 was competent, even though the object of the assignment 
 was to enable him to become a witness.^* Thus the assignor 
 of a judgment was held competent to testify in a suit on the 
 judgment against a legatee.^* 
 
 * Tremper v. Conklin, 44 Barb. 456. " 3 How. Pr. 401. 
 
 And see infra, p. 219, n. 5. 12 4 e. D. Smith, 59. 
 
 2 Wildey ii. Whitney, 25 How. Pr. 75. i^ Vasseur u. Livingstone, 4 Duer, 
 
 8 Beach v. Cooke, 28 N. Y. 508. 285. 
 
 « Penny v. Black, 6 Bosw. 50. 1* Hight v. Sackett, 34 N. Y. 447 ; 
 
 ^ Collier t. Wenner, 45 Barb. 397. but the case turned on the point that 
 
 See also Comstock 0. Hier, 73 N. Y. the legatee was not " an assignee, or 
 
 269. executor, or administrator," within 
 
 8 Prouty V. Eaton, 41 Barb. 409 ; the meaning of § 399. See also 
 
 Collier v. Wenner, supra. Richardson v. Warner, 13 Hun, 13 ; 
 
 ' Theall v. Steitz, 6 Daly, 482. Boches v. Lansing, Id. 38. 
 
 ^ Bridges v. Hyatt, 16 N. Y. 546. As to the necessity and sufficiency 
 
 ^ Jones V. M. E. Church, 21 Barb, of the notice to be given to the adverse 
 
 161. party, of intention to examine the 
 
 '" Winthrop v. Meyer, 4 E. D. Smith, " assignor of a thing in action or con- 
 
 177. tract," under § 399, see Jagoe v. Allen, 
 
§ 130.] OPERATION OF ENABLING STATUTES. 213 
 
 (9) Showing extraneous facts and circumstances. Section 
 829 prohibits the survivor from testifying that any particular 
 communication or transaction did or did not take place be- 
 tween him and the deceased, but there the prohibition ends. 
 It does not preclude him from testifying to extraneous facts 
 or circumstances, which tend to show that a witness who has 
 testified to such a transaction or communication, has testified 
 falsely, or that it is impossible that his statement can be 
 true, as, for instance, that the survivor was absent from the 
 country when the transaction is stated by the witness to 
 have occurred. So long as the survivor refrains from testify- 
 ing as to anything that passed or did not pass, personally, 
 between himself and the deceased, it is not a valid objection 
 to his testimony, that the facts which he states bear upon 
 the issue, whether or not the personal transaction in question 
 took place, or upon the truth of the testimony by which 
 such transaction is sought to be proved against him. There- 
 fore, where a witness had testified in behalf of an administra- 
 tor plaintiff, to a transaction between the defendant and the 
 intestate in his presence, it was held that the defendant 
 might testify that the witness was not present at any trans- 
 action between him and the intestate ; and that the inter- 
 view between them did not take place in the room where 
 the witness testified it did, but in another room.^ 
 
 (10) Conversations between the deceased and third person. 
 
 16 Barb. 580 ; Seymour c. Bradfield, court, overruling the objection, on tlie 
 35 Id. 49 ; Ealon v. Keese, 8 How. Pr. ground that the question involved no 
 341 ; Benliam v. N. Y. &c. R. U. Co., personal transaction, but merely re- 
 13 Id. 198 ; Pattison v. Johnson, 15 spected the condition of the bonds at 
 Id. 289. a particular time. Wadsworth i-. 
 iPinneyu. Orth,88N.Y.447. Thus Heermans, 85 N. Y. 639; affirmini] 
 is an action by H. to recover some s. c, sub mom. Hill v. Heermans, 22 
 negotiable bonds which he claimed to Hun, 455. But see, to the contrary, 
 have deposited with the deceased for Pease v. Barnett, 30 Hun, 525. So, 
 safe keeping merely, but which were also, in another case, — an action for 
 found in deceased's safe with his name money had and received, — the plain- 
 inserted in the blanks, and claimed by tiff was allowed to testify as to the 
 the defendant as assignee of the amount of money deposited by, him 
 deceased, H. was asked whether de- to the credit of the deceased, and 
 ceased's name was on the bonds when entered in his bank-book. Tranklin 
 he, H., put them in his safe. This v. Pinckney, 18 Abb. Pr. 186. See 
 question was objected to as involving also Gorham u. Price, 25 Hun, 11; 
 a personal transaction with the de- and Dyer v. Dyer, 48 Barb. 190, which 
 ceased, but the Court of Appeals last cited case held the other way, 
 affirmed the decision of the trial under § 399. 
 
214 COMPETENCY, [CHAP. VIII. 
 
 overheard hy witness. The provisions we are considering 
 do not prevent a party testifying, in an action in which the 
 legal representatives of a deceased person are adverse joarties, 
 to a conversation between the deceased and a third person, 
 overheard by the witness; such hearing is not "a transaction 
 had personally between the deceased and the party." ^ Thus, 
 in an action by the administrator, to set aside a deed made 
 by the intestate, the next of kin may testify to the sayings 
 and doings of the intestate, which were without any induce- 
 jlient or participation on the part of the witness.^ But if the 
 conversation overheard was connected with anything that 
 passed between the witness and the deceased ; ^ or if he took 
 any part in it, and it related to a transaction between him- 
 self and the deceased, he is incompetent.* It will not suffice, 
 in such a case, to offer to leave out his share in the conver- 
 sation and testify only to the balance.® So, also, if the third 
 lierson present was the agent of the witness, and acting at the 
 time in his interest, the witness cannot testify to what he 
 overheard.^ And a defendant cannot testify, where he would 
 otherwise be forbidden by this provision, merely because the 
 plaintiff, the executor of the deceased, whose transactions 
 are in question, was present at the conversation.'^' 
 
 (11) Trajisactions with agents. The prohibition we are 
 examining does not extend to transactions with agents of 
 the deceased person,^ or with the deceased agent of the ad- 
 verse party .^ Thus, while a party may not testify to a pay- 
 ment made by himself to the deceased, he may testify to a 
 payment made to his agent. i" But where an agent lent 
 money and took a note payable to his principal or bearer, 
 and afterwards bought the note, and died, in an action on 
 the note by his administrator, the defendant was not allowed 
 to testify as to personal conversations with deceased at the 
 time the note was given, so as to let in the defence of usury .^^ 
 
 1 Simons v.Sisson, 26 N.Y. 264; Hil- ^ Rqss v. Harden, 42 Superior, 427. 
 debrandt.«. Crawford, 65 N. Y. 107 ; ^ Head v. Teeter, 10 Hun, 548. 
 w^rminff s. 0., 6 Lans. 502 ; Patterson 'Howell r. Taylor, 11 Hun, 214. 
 ('. Copeland, 52 How. Pr. 460; Marsh And see Cornell v. Cornell, 12 Id. 
 V. Gilbert, 2 Redf. 465. 312. 
 
 2 Holcomb V. Holeomb, 20 Hun, 156. « pratt v. Elkins, 80 N. Y. 198. 
 
 s Brague i. Lord, 67 N. Y. 495 ; 2 ^ piatner v. Platner, 78 N. Y. 90. 
 
 Abb. N. C. 1 ; reversing s. u., 41 Supe- w Kerr v. McGuire, 28 N. Y. 446. 
 
 rior, 193. •' Jackson i-. McLure, 3 Week. Dig. 
 
 4 Kraushaar v. Meyer, 72 N. Y. 602 ; 448. 
 Smith V. Ulman, 26 Hun, 386. 
 
§ 130.] OPEEATION OF ENABLING STATUTES. 215 
 
 (12) Transaction with defendant who is Uuing, co-defendant 
 having died. The disqualification depends entirely upon the 
 state of facts existing at the time the testimony is given, not 
 upon any subsequent change ; therefore, the death of one of 
 two defendants affords no ground for striking out tliat por- 
 tion of plaintiff's testimony which was given before his death. 
 In such a case, a transaction with the surviving defendant 
 ii not rendered inadmissible by the death of the other. 
 Thus, in an action on a bridge contract, a diagram which 
 had been used in the presence of both defendants, one of 
 whom had since died, should not be excluded because plain- 
 tiff could not recollect from which one he received it.^ 
 
 (13) Witness ivho has no interest, or who testifies against 
 interest. Even at common law, a witness other than a jjarty, 
 who had no interest in the event, or who testified against 
 his interest, was generally deemed competent,^ but the courts 
 so construed section 399 of the Code of Procedure, as to 
 make the witness incompetent even when called to testify 
 against his own interest.^ This led to the insertion, in sec- 
 tion 829 of the present code, of the words, "in his own 
 behalf or interest, or in behalf of the party succeeding to his 
 title or interest," and it is now well settled that the section 
 does not apply where the witness has no interest, or being 
 interested, testifies against his interest.* Thus a son of the 
 deceased is not within the prohibition of the statute against 
 an interested person testifying, if the estate of the deceased 
 is insolvent.^ And an attorney's lien upon his client's cause 
 of action does not render liim interested within this provi- 
 sion.8 The fact that the witness is interested at the time of 
 the trial will not disqualify him, if he had none at the time 
 he overheard the conversation in which the deceased took 
 part, and it was not addressed to him.'' 
 
 (14) Rights of party after executor, etc., testifies in his 
 
 1 Comins o. Hetfield, 80 N. Y. 261 ; Brown v. Brown, 29 Hun, 498. S. P. 
 affirming s. c, 12 Hun, 375. See also Purcell v. Fry, 19 Hun, 595 ; 58 How. 
 kale V. Elliott, 18 Hun, 198. Pr. .317. 
 
 2 See supra, §§ 47-50. ^ Lathrop v. Hopkins, 29 Hun, 608. 
 
 3 See Clare v. Stewart, 8 Hun, 127; See also Allis v. Stafford, 14 Hun, 
 Richardson v. Warner, 13 Id. 13 ; Gif- 418 ; and contra, Wilkins ;;. Baker, 24 
 ford V. Sackett, 15 Id. 79 ; Alexander u. Hun, 32. 
 
 Dutcher, 70 N. Y. 385. But see " Sherman v. Scott, 27 Hun, 3-3.1. 
 Hobart v. Hobart, 62 N. Y. 80. ' Gioss <,. Welwood, 9 Reporter, 
 
 1 Carpenter v. Soule, 88 N. Y. 251 ; 587. 
 
210 COMPETENCY. [CHAP. VIIl. 
 
 own behalf. The court of appeals, in interpreting section 
 399 of the former code, held that where a party had given 
 evidence of the admissions of his opponent respecting the 
 terms of a verbal contract between him and a deceased per- 
 son, on which the action was founded, the other party could 
 not testify as to the terms of the contract so claimed to be 
 admitted.! The theory was that testimony of admissions 
 that a transaction had taken place was not testimony "as 
 to" the transaction itself. Therefore the party could do no 
 more than deny the making of the admissions testified to. 
 In section 829 of the present code, however, the word, " con- 
 cerning" is substituted for the words "as to," and it has 
 been decided by the supreme court at special term, that ad- 
 missions as to what took place concern the transaction to 
 which they refer ; and therefore, after the representative has 
 testified to admissions of the adverse party to the effect that 
 a certain transaction took place between him and the de- 
 ceased, such adverse party may testify, in his own behalf, as 
 to what the transaction itself was,^ in like manner as he 
 could do, had the representative testified concerning the 
 transaction directly.^ Again, where the representative testi- 
 fies to declarations of the deceased, kindred declarations of 
 his are admissible.^ But the responsive testimony must be 
 confined to the same transaction or communication testified 
 to by the representative.^ Thus, where the executor was 
 examined as to the language used by the defendant to the 
 deceased, in asserting a claim for rent in arrears, etc., this 
 was held not sufficient to authorize the defendant to testify, 
 in his own behalf, as to the terms of his agreement with the 
 deceased for the hiring of the property.^ A county court 
 has decided that where what the representative swore to was 
 not necessary to make out his case, his testifying in his own 
 behalf did not render the other party competent.'' And the 
 
 1 Chadwick v. Fonner, 69 N. Y. 404 ; prove which they put in evidence an 
 reversing 6 Hun, 543. entry of the deceased in an account- 
 
 " Markell u. Benson, 55 How. Pr. book. It was held that the applicant 
 
 360. could testify concerning such advaucc- 
 
 2 Sweet V. Law, 28 Hun, 432. ment, and explain or deny such entry. 
 * Marsh v. Brown, 18 Hun, 319. » Ward v. Plats, 23 Hun, 402. 
 
 This was an applicatiuri for a siiare in ^ Hammond v. Schultz, 45 Superior, 
 
 the estate of the applicant's deceased 611. 
 
 father. The executors claimed to ' Pettit v. Geesler, 58 How. Pr. 195. 
 
 deduct an alleged advancement, to It seems to the writer that if the rep- 
 
§ 130.] OPERATION OF ENABLING STATUTES. 217 
 
 Gupreme court holds, that a party cannot, by examining his 
 adversary concerning transactions with the deceased, thereby 
 let in his own testimony as to such transactions.-^ 
 
 (15) Riffhts of parti/ when called and examined hy 
 adverse party. Wlien a party is called as a witness by the 
 adverse party, and examined as to a transaction or commu- 
 nication with the deceased, concerning whicli he would have 
 been incompetent to testify in his own behalf, he is entitled, 
 on the cross-examination, to explain his testimony, and to 
 state the whole transaction.^ 
 
 (16) Effect of introducing former testimony of deceased. — 
 Where the testimony of the deceased on a former trial is 
 introduced by the representative, the other party may give 
 evidence in contradiction or correction of it. If the direct- 
 examination of deceased is read, the cross-examination may 
 be read by the other party, though it contains testimony to 
 a distinct and material fact — a personal transaction with 
 deceased — not covered by the direct-examination.* 
 
 Where both parties were examined before trial, each at the 
 instance of the other, their respective examinations reduced to 
 writing and signed, and one of them died before trial, the 
 deposition of the survivor was admitted in evidence, iii proof 
 of personal transactions between himself and the deceased, 
 as to which the oral testimony of tlie witness would not, the 
 the other party being dead, liave been admissible.* But 
 where the parties stipulated as to what the plaintiff would 
 swear to on the trial, and agreed that either party could read 
 such stipulation, and the plaintiif died before trial, it was 
 held that the defendant, after reading the stipulation, 
 could not offer himself as a witness respecting the matters 
 contained therein.^ Where the deposition of the deceased 
 is introduced in evidence, after the adverse party has been 
 
 resentative opens the door, he should reversing 46 Superior, 182. S. P. Rob- 
 not he permitted to sliut it in the bins v. Pultzs, 48 Superior, 510. 
 otlier party's face. * McDonald v. Woodbury, 05 How. 
 
 1 Corning v. Walker, 28 Hun, 4-35. Pr. 226. Such a procedure is sanc- 
 S. P., under § 399, see Angel v. Soils, tioned by § 881, notwithstanding § 820. 
 2E.D. Smith, 249. In such a case the Rice i-. Jlotley, 24 Hun, 143. 
 representative, etc., is not examined ^ Miller u, Adkins, 9 Hun, 9. In 
 " in his own behalf." such a case the testimony of the de- 
 
 2 Merritt x\ Campbell, 79 N. Y. 025. ceased is not ofEercd in behalf of the 
 " Potts V. Mayer, S6 N. Y. 302 ; s. c, representative. 
 
 02 How. Pr. 126; 10 Abb. N. C. 03; 
 
218 COMPETENCY. [CHAP. VIII. 
 
 erroneously allowed to testify in his own favor, as to per- 
 sonal transactions with the deceased, this cures the error if 
 the deposition relates to the same transactions.'^ It seems 
 that the books of account of the deceased are not " the testi- 
 mony of the deceased " within the provision of the statute.^ 
 
 (17) Who may test'fy in proceedings to prove or contest 
 the will. One to whom a legacy is given on condition that 
 he render certain religions services, is, by his interest in the 
 event, disqualified from testifying on a probate contest, as 
 to conversations of the testator with him. And such testi- 
 mony may, on motion at the hearing, be stricken out, though 
 not objected to when offered.'^ Where the probate is con- 
 tested for incapacity of the testator, the executors are fully 
 under the protection of section 829, though they are not yet 
 technically "executors."* But the executor propounding 
 the will may testify not only in regard to its execution, but 
 also as to other transactions and communications with the 
 deceased.^ And the possible right of doAver of a female wit- 
 ness, in the event of her surviving her husband, does not 
 disqualify her from testifying, in a proceeding for the pro- 
 bate of her husband's father's will, to transactions had with 
 her hiisband's father, although if the will should be dis- 
 allowed, her husband would inherit.^ But where the wife cf 
 the testator, whose powers of speech were affected by paraly- 
 sis at the time of making his will, acted as interpreter be- 
 tween him and the person drawing the will, the proceedings 
 were reversed because she was permitted to testify, on the 
 probate, as to what were the testator's M'ishes, intentions, and 
 directions, expressed through her, the fact being that she 
 was legatee, devisee, and sole executrix.'^ 
 
 (18) Who may testify on accounting hy representative. 
 It has been held that in proceedings before a surrogate 
 upon the final accounting of an administrator, a party to the 
 record is not a competent witness ; ^ that on an accounting 
 
 1 Trow r. Shannon, 8 Daly, 239. ^ AVhelpley v. Loder, 1 Demarest, 
 
 '' Benjamin v. Dinmick, 4 Redf. 7. 333. But see Be Smith, 95 N. Y.510. 
 
 But compare Marsh v. Brown, 18 Hun, " Scherrer v. Kaufman, 1 Demarest, 
 
 319. 39. Contra, Steele v. Ward, 30 Hun, 
 
 3 Re Burke, 5 Redf. 309. 555. 
 
 * Schoonmaker v. AVolford, 20 Hun, ' Lane r. Lane, 95 N. Y. 316 ; s. c, 
 
 166. 10 Week. Dig. 0. 
 
 8 Terry v. Dayton, 31 Barb. 519. 
 
§ 130.] 
 
 OPERATION or ENABLING STATUTES. 
 
 219 
 
 by a non-resident executor, the surety on his bond cannot 
 testify against the legatees, as to personal transactions with 
 the deceased, even though they call him as their witness 
 as to other matters;^ and that the manager of a deceased 
 person's estate cannot testify to payments made by him to 
 the deceased, or prove them by his books, in reduction of a 
 claim against him in favor of the estate.^ 
 
 (19) Actions hy or ar/ainst the representative in. his individ- 
 ual character. Where the representative sues in his individ- 
 ual capacity, and not in his representative character, the 
 other party is not prohibited from testifying to personal 
 transactions and communications with the deceased,^ and a 
 foreign executor cannot sue in his representative capacity.* 
 So, also, where the representative is not sued as such, but to 
 enforce against him, individually, a claim ■ growing out of 
 matters in which he acted for the estate, the plaintiff may 
 testify as to personal transactions with the deceased.^ 
 
 1 Miller w. Montgomery, 78 N. Y. 
 282. 
 
 2 Elmore v. Jacques, 4 Thomp. & C. 
 679. 
 
 3 Titus V. O'Connor, 57 How. Pr. 
 391. 
 
 * Buckingham v. Andrews, 34 Barb. 
 434. 
 
 5 Hall V. Richardson, 22 Hun, 444. 
 
 For further adjudications applying 
 the foregoing principles in actions on 
 hills, notes, and checks, see Van Als- 
 tyne u. Van Alstyne, 28 N. Y. 375; 
 Alexander v. Dutcher, 70 N. Y. 385; 
 Church V. Howard, 79 N. Y. 415; 
 reversing 17 Hun, 5; Eaubitshek v. 
 Blank, 80 N. Y. 478; affirming 44 
 Superior, 564; Nearpass v. Gilman, 
 16 Hun, 121; Ely v. Clute, 19 Id. 35; 
 Hill !). Alvord, Id. 77 ; Hill v. Hotcli- 
 kin, 23 Id. 414 ; Converse v. Cook, 31 
 Id. 417 ; Collier v. Wenner, 45 Barb. 
 397 ; Genet o. Lawyer, 61 Id. 211 ; 
 Smith V. Sergent, 67 Id. 243; Van 
 Wyek V. Mcintosh, 2 Duer, 86 ; New 
 York Exchange Bank u. Jones, 9 
 Daly, 248. In actions by or against 
 surviving partners, see City Bank of 
 Brooklyn v. McChesney, 20 N. Y. 
 240 ; Bissell v. Hamlin, 3 Bosw. 383 ; 
 Tremper v. Conklin, 44 N. Y. 58 ; s. c. 
 
 44 Barb. 456; Comstock v.-Hier, 73 
 N. Y. 269; Kale u. Elliott, 18 Hun, 
 198; Pettit v. Geesler, 58 How. Pr. 
 195; Earley v. Norton, 67 Id. 138. 
 In actions against corporations, see 
 Severn u. Nat. State Bank, 18 Hun, 
 228 ; La Earge v. Exchange Fire Ins. 
 Co., 22 N. Y. 352 ; Wallace v. Mayor, 
 &c., 18 How. Pr. 169. See also 3 N. 
 Y. 489; 7 Id. 48; 2 Sandf. 686, 731. 
 In actions respecting real properti/, 
 generally, see Mattoon v. Young, 45 
 N. Y. 696 ; Tooley v. Bacon, 70 N. Y. 
 34; Foote !j. Beecher, 78 N. Y. 155; 
 s. c, 7 Abb. N. C. 358 ; Pope v. Allen, 
 90 N. Y. 298; Sanford v. EUithorp, 
 95 N. Y. 48; lie Le Barron, 67 How. 
 Pr. 346; Champlin .;. Seeber, 56 Id. 
 46 ; Witthaus v. Schack, 24 Hun, 328. 
 In actions to foreclose wortqages, see 
 Whitehead f. ' Smith, 81 N. Y. 151; 
 Smith V. Hathorne, 25 Hun, 272; 
 Hadsalli). Scott, 26 Id. 617; Wilson 
 V. Reynolds, 31 Id. 46; Prouty ,-. 
 Eaton, 41 Barb. 409; Farnsworth u. 
 Ebbs, 5 Thomp. & C. 1 ; s. u., 2 Hun, 
 438. In replevin and trover suits, see 
 Waver v. Waver, 15 Hun, 277 ; Penny 
 V. Black, 6 Bosw. 50; Hammond u. 
 Schultze, 45 Superior, 611. 
 
220 COMPETENCY. [CHAP. VIU. 
 
 (20) Testimony of party dying after trial, etc., is evidence 
 on new trial, etc. " Where a party has died since the trial 
 of an action, or the hearing upon the merits of a special pro- 
 ceeding, the testimony" of tlie decedent, or of any person 
 who is rendered incompetent by the provisions of the last 
 section, taken or read in evidence at the former trial or hear- 
 ing, may be given or read in evidence at a new trial or hear- 
 ing, by either partj^, subject to any other legal objection to 
 the competency of the witness, or to any legal objection to 
 ]ii3 testimony or any question put to him.''^ 
 
 This section applies to a case where the jury disagreed on 
 the first trial ; and a party having died before the second 
 trial, his testimony, or that of the surviving party, may be 
 read by the stenographer from his notes taken on the former 
 trial.2 
 
 (21) Competency of husband and wife. " A husband or a 
 wife is not competent 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 com- 
 pelled, or without consent of the other, if living, allowed to 
 disclose a confidential communication, made by one to the 
 other, during the marriage. In an action for criminal con- 
 versation the plaintiff's Avife is not a competent witness for 
 the plaintiff, but she is a competent witness for the defend- 
 ant, as to any matter in controversy ; except that she cannot, 
 without the plaintiff's consent, disclose any confidential com- 
 munication had or made between herself and the plaintiff." ^ 
 
 (22) Conviction for crime not to exclude ivitness ; convic- 
 tion, how proved. " A person Avho has been convicted of a 
 crime or misdemeanor is, notwithstanding, a competent wit- 
 ness in a civil or criminal action or special proceeding ; but 
 the conviction may be proved for the purpose of affecting 
 the weight of his testimony, either by the record, or by his 
 cross-examination, upon which he must answer any question, 
 relevant to that inquiry ; and the party cross-examining him 
 is not concluded by his answer to such a question." * 
 
 1 Code Civ. Pro. § 830 ; Laws 1879, « Code Civ. Pro. § 831. For the 
 ch. 542. decisions under this section, see infra, 
 
 2 Lawson v. Jones, 12 Week. Dig. Cliap. X. 
 
 551 ; s. c, 61 How. Pr. 424. See also * Code Civ. Pro. § 832 ; Laws 1870, 
 Bradley v. Nitick, 25 Ilun, 272. ch. 542. Before the amendment in 
 
§ 131. J OPEPvATIOK OF ENABLING STATUTES. 221 
 
 (23) Confidential communications. "A clergyman, or other 
 minister of any religion, shall not be allowed to disclose a 
 confession made to him, in his professional character, in the 
 course of discipline enjoined by the rules or practice of the 
 religious body to which he belongs." ^ 
 
 " A person duly authorized to practice physic or surgery 
 shall not be allowed to disclose any information which he 
 acquired in attending a patient, in a professional capacity, 
 and which was necessary to enable him to act in that ca- 
 pacity." ^ 
 
 " An attorney or counsellor at law shall not be allowed to 
 disclose a communication, made, by his client to him, or his 
 advice given thereon, in the course of his professional em- 
 ployment." 3 
 
 " The last three sections apply to every examination of a 
 a person as a witness, unless the provisions thereof are ex- 
 pressly waived by the person confessing, the patient or the 
 client."* 
 
 § 131. North Carolina. — A party to an action may be 
 examined as a witness at the instance of the adverse partj'', 
 either at the trial or conditionally, or upon commission": 
 " Provided, no person who is or shall be a party to an action 
 founded on a judgment rendered before the first day of 
 August, one thousand eight hundred and sixty-eight, or on 
 any bond executed prior to said date, or the assignor, indorser 
 or any person who has at the time of the trial, or ever has had, 
 any interest in such judgment or bond, shall be a competent 
 witness on the trial of such action, but this proviso shall not 
 apply to the trial of any action commenced before the first 
 day of August, 1868, nor to the trial of any action in which 
 the defendant therein relies upon the plea of payment in 
 fact, or pleads a counter-claim, and also introduces himself 
 as a witness to establish the truth of such plea, but in all 
 such cases the rules of evidence as contained in this code 
 shall prevail." ^ 
 
 1879, this section did not apply to cisiqns under this and §§ 834, 835 and 
 criminal cases. Perry v. People, 86 836, see infra. 
 N. Y. 353. Se? also supra, §§ 14-20; 2 jud. § 834. 
 infra. Chap. IX. ' Ihid. § 835. 
 
 1 Code Civ. Pro. § 833. For de- * Ihid. § 836. 
 
 6 Code 1883, Vol. I. p. 228, § 580. 
 
222 COMPETENCY. [CHAP. VIII. 
 
 Section 1350 removes all disqualification arising from 
 " interest or crime " in both civil and criminal cases, but 
 does not apply to attesting witnesses to wills. 
 
 Parties, and jiersons in whose behalf any suit or proceeding 
 is brought or defended, are competent and compellable to 
 testify, except in actions for criminal conversation and cases 
 where adultery is in issue.-^ 
 
 Section 343 of the Code affords the following rule as to 
 the competency of parties and persons interested, viz. : that 
 in all cases, except where the proposed evidence is as to a 
 transaction, etc., witli a person deceased, etc., the common- 
 law disqualifications of being a party and of interest in the 
 event of the action are removed; but as to such transaction, 
 etc., the disqualifications are preserved, with the added one 
 not known to the common law, — that if the witness ever 
 had an interest, upon the question of liis competency, it is 
 to be considered as existing at the trial.^ 
 
 But an interest in the thing in controversey will not dis- 
 qualify ; it must be an interest in the event of the action.^ 
 
 Again, it is only when the transaction is between deceased 
 and the living party, that the latter is forbidden to testify. 
 He may prove a fact which occurred out of the presence of, 
 and which was in no sense a transaction Avith, the deceased 
 person.* Such as transactions with a deceased agent of a 
 deceased principal.^ So he may testify as to a transaction 
 with two persons, one of whom is dead.^ Even where direct 
 evidence of a conversation with one deceased is incompetent, 
 a rehearsal of the same in conversation with a son of the 
 deceased may be competent, if part of the res gestae.'' 
 
 The admission of evidence as to a transaction with one 
 deceased, by a witness who, though nominally a defendant, 
 is really a plaintiff in interest, renders competent that of his 
 
 1 Ibid. § 1351. For decisions under * Lockhart v. Bell, 86 N. C. 440 ; 
 earlier statutes, as to the competency s. c, 90 N. C. 499. Compare Gray 
 of parties in qui tarn, and bastnrdi/ cases, v. Cooper, 65 N. C. 183. 
 
 see State v. Mangum, Phill. L. 177 ; ^ Morgan v. Bunting, 86 N. C. CO ; 
 
 State V. Henderson, Id. 229. In will Howerton i. Latimer, 68 N. C. 370. 
 
 cases, see Gunter i;. Gunter, 3 Jones, But Compare McRae v. Malloy, 00 
 
 L. 441 ; Pannell v. Scoggin, 8 Id. 408. N. C. 521. 
 
 2 Peebles <>. Stanley, 77 N. C. 243. » Peacock v. StoU, 90 N. C. 518. 
 
 S. P., Mason v. McCormick, 80 N. C. ' Treadwell v. Graham, 88 N. C 
 244. 208. To the contrary, see Perry v. 
 
 » Mull V. Martin, 85 N. C. 406. Jackson, 84 N, C. 230, 
 
§ 132.] OPERATION OF ENABLING STATUTES. 223 
 
 co-defendant touching the same transaction.^ So, where the 
 representative is examined as a witness in his own behalf, 
 concerning transactions with the deceased, the testimony of 
 any jierson (as the plaintiff), not otherwise rendered in- 
 competent, is admissible to contradict or explain the testi- 
 mony of such representative.^ The restriction does not 
 apply to actions under the book-debt law;^ nor where the 
 representative of the deceased is not a party to the suit.* 
 So, also, the grantor of a lost deed, if indifferent between 
 the parties, may testify that he made the deed to one 
 deceased at the time of the trial.^ ' 
 
 Affidavits needed in the progress of the cause are not 
 included in the inhibition ; thus the assignee of a judgment 
 against a decedent may, in support of a motion for an alias 
 execution, make affidavit that the deceased had not paid the 
 judgment.^ 
 
 § 132. Ohio. • — " All persons are competent witnesses 
 except those of unsound mind and children under ten years 
 of age who appear incapable of receiving just impressions 
 of the facts and transactions respecting which they are ex- 
 amined, or of relating them truly.".'' 
 
 " The following persons shall not testify in certain respects. 
 (1) An attorney, concerning a communication made to him 
 by his client in that relation, or his advice to his client ; or a 
 physician, concerning a communication made to him by his 
 
 1 Redman v. Redman, 70 N. C. 257. Commr's v. Lash, 89 N. C. 159. In 
 
 2 Murphy v. Ray, 73 N. C. 588. actions on bills and notes, see Smitli 
 « Leggett V. Grover, 71 N. C. 211. v. Haynes, 82 N. C. 448; Tabor v. 
 1 Thomas v. Kelly, 74 N. C. 416. AVard, 83 N. C. 291. In will contests, 
 5 Gregg V. Hill, 80 N. 0. 255. see Peppgr v. Broughton, 80 N. C. 251. 
 c Latham v. Dixon, 82 N. C. 55. For ,cases under Code 1883, Vol. I. 
 
 But see, also, Weinstein c. Patrick, § 580, above quoted, as to actions 
 
 75 N. C. 344 ; Busheo v. Surles, 77 on bonds executed prior to August 
 
 N. C. 02; Grier v. Caglc, 87 N. C. 1, 1868, see Gilmer v. McNairy, 09 
 
 377. N. C. 335; State v. Bryant, Id. 444; 
 
 For further decisions as to the Bradsher v. Brooks, 71 N. C. S22 ; 
 
 competency of parties in actions by "Woodhouse v. Simmons, 73 N. C. CO ; 
 
 or against representatives find guar- Ballard d. Ballard, 75 N. C. 190; Can- 
 
 dians, see Halyburton i . Pobson, 05 non r. Morris, 81 N. C. 139 ; Ex parte 
 
 N. C. 88; Isler v. Dewy, 07 N. C. 93 
 Williams v. Johnston, 82 N. C. 288 
 Syme v. Broughton, 85 N, C. 367 
 
 Macay, 84 N. C. 03; Jones v. Henry, 
 Id. 320; Pugh v. Grant, 86 N. C. 39; 
 Morgan u. Bunting, Id. 66; Kessler 
 
 Allen 0. Gilkey, 86 N. C. 64 ; State <,-. Mauney, 89 N. C. 369. 
 
 V. Osborne, 67 N. C. 259; Lewis v. 'Rev. Stat. (2d ed.) 1880, p. 1278, 
 
 Fort, 75 N. C. 251 ; Mason v. McCor- § 5240. 
 
 mick, 75 N. C. 263; Forsyth Co. 
 
224 COMPETENCY. [CHAP. VIII. 
 
 patient in tliat relation, or his advice to iiis patient ; but 
 the attorney or physician may testify by express consent of 
 the client or patient ; and if the client or patient voluntarily 
 testify, the attorney or physician may be compelled to testify 
 on the same subject. (2) A clergyman or priest, concerning 
 a confession made to him in his professional character in the 
 course of discipline enjoined by the church to which he 
 belongs. (3) Husband or wife, concerning any communi- 
 cation made by one to the other, or an act done by either in 
 the presence of the other, during coverture, unless the com- 
 munication was made or act done, in the known presence or 
 hearing of a third person competent to bo a witness ; and the 
 rule shall be the same if the marital relation has ceased to exist. 
 (4) A person who assigns his claim or interest, concern- 
 ing any matter in respect to which he would not, if a party, 
 be permitted to testify. (5) A person who, if a party, would 
 be restricted in his evidence under section five thousand two 
 Ivjjndred and forty-tico^ shall, where the property or thing is 
 sold or transferred by an executor, administrator, guardian, 
 trustee, heir, devisee, or legatee, be restricted in the same 
 manner in any action or proceeding concerning such prop- 
 erty or thing." ^ 
 
 " A party shall not testify where the adverse party is the 
 guardian or trustee of either a deaf-and-dumb or an insane 
 person, or of a child of a deceased person, or is an executor 
 or administrator, or claims or defends a^ heir, grantee, 
 assignee, devisee, or legatee', of a deceased person, except — 
 (1) To facts which occurred subsequent to the appointment 
 of the guardian or trustee of an insane person, and in the 
 other cases, subsequent, to the time the decedent, grantor, 
 assignor, or testator died. (2) When tlie action or proceeding 
 relates to a contract made through an agent by a person since 
 deceased, and the agent testifies, a party may testify on the 
 
 1 lUd. § 5241. Bank, 1 Ohio St. 206. And so was 
 
 The disability of interest in tlie the owner of land proposed to be 
 
 event of the suit was removed by talien in condemnation proceedings, 
 
 statute in 1850, but that act was Atlantic &fi. R. R. Co. r. Campbell, 
 
 held not to apply to parties to the 4 Ohio St. 583. Statutes prior to 
 
 suit, or to any one for whose inime- the Code, upon this subject, were 
 
 (liate benefit it was prosecuted or not repealed by it so far as suits 
 
 defended. But a stockholder in a. then pending and bills of review 
 
 corporation which was a party, was v/ere concerned. Hale ii. Wetmore, 
 
 held competent. Lawson u. Salem 4 Ohio St. 600. 
 
§ 132.] OPEEATIOK OF ENABLING STATUTES. 225 
 
 same subject. (3) If a party, or one ha-ving a direct interest, 
 testify to transactions or conversations witla another party, 
 the latter may testify as to the same transactions or conversa- 
 tions. (4) If a party offer evidence of conversations or 
 admissions of the opposite party, the latter may testify con- 
 cerning the same conversations or admissions. (5) In an 
 action or proceeding by or against a partner or joint con- 
 tractor, the adverse party shall not testify to transactions 
 with, or admissions by, a partner or joint contractor since 
 deceased, unless the same were made in the presence of the 
 surviving partner or joint contractor ; and this rule shall be 
 applied without regard to the character in which the parties 
 sue or are sued. (6) If tlie claim or defense is founded on 
 a book account, a party may testify that the book is his 
 account book, that it is a book of original entries, that the 
 entries therein were made by himself, a person since deceased, 
 or a disinterested person non-resident of the county ; where- 
 upon the book shall be competent evidence ; and such book 
 may be admitted in evidence in any case without regard to 
 the parties, upon like proof by any competent witness. (7) 
 If a partj^ after testifying orally, die, the evidence may be 
 proved, by either party, on a further trial of the case ; where- 
 upon the opposite party may testify as to the same matters. 
 (8) If a party die, and his deposition be offered in evidence, 
 the opposite party may testify as to all competent matters 
 therein. 
 
 " Nothing in this section contained shall apply to actions for 
 causing death, or actions or proceedings involving the valid- 
 ity of a deed, will, or codicil, and when a case is plainly 
 within the reason and spirit of the last three sections, though 
 not within the strict letter, their principles shall be ap- 
 plied."! 
 
 The third exception to section 5242, has been held to 
 render the other party competent, where the representative 
 party, in his own behalf, testifies to a conversation between 
 the deceased and such other party.^ Subdivision 2 of the 
 same exceptions admits the testimony of a defendant as 
 to transactions with plaintiff's deceased agent, though not 
 occurring in his presence, if within tlie scope of the agent's 
 
 1 Ibid. § 5242. 2 Rankin u. Hannan, 38 Ohio St. 438. 
 
226 COMPETENCY. [CHAP. VHI. 
 
 authority.! Under a previous statute,^ and other enact- 
 ments, prior to the one quoted above, ic was held that in a 
 suit by the assignee of a chose in action, the assignor was not 
 a " party," and was therefore admissible to prove facts occur- 
 ring before the death of the original debtor.^ Nor did the 
 statutory inhibition apply to the assignee of a chose in action, 
 where the adverse party claimed as " grantee " of a deceased 
 person.* So, also, where an administrator sued two makers 
 of a promissory note, one only of whom defended, the other 
 was held a competent witness for his co-defendant.^ And 
 the administrator was a competent witness in his own behalf 
 on the settlement of his accounts." 
 
 On the other hand, where a surviving partner was plaintiff, 
 the defendant was not permitted to testify as to transactions 
 or conversations with the deceased partner, unless they took 
 place in the presence of the plaintiff.'' And where a guar- 
 dian of a weak-minded person brought suit to set aside a 
 deed executed by his ward, before his appointment, the heirs 
 of the grantee, if defendants, were not admitted to prove 
 facts which occurred before the plaintiff's appointment.^ 
 
 § 133. Oregon. — In this State all persons, parties, and 
 persons interested in the event are competent. Neither 
 conviction of crime or want of religious belief disqualifies ; 
 but in every case, except the latter, the credibility of the 
 witness may be drawn in question.^ The exceptions are 
 insane persons and children under ten, husband or wife, 
 without the consent of the other, except in suits by one 
 against the other, or for a crime committed by one against 
 the other. Then follow the usual provisions as to attorneys, 
 clergymen, physicians, and public officers.!** 
 
 § 134. Pennsylvania. — '> No interest nor policy of law 
 shall exclude a party or person from being a "witness in any 
 civil proceeding : Provided, This act shall not alter the law,- 
 
 1 Cochran v. Almack, 39 Ohio St. » McNicol v. Johnson, 29 Ohio St. 
 314. 85. 
 
 2 Code Civ. Pro. § 313 ; 67 Ohio L. For further decisions interpreting 
 113. tliese earlier statutes, see Bomberger 
 
 3 Myres v. Walker, 9 Ohio St. 558. v. Turner, 13 Ohio St. 263 ; Stevens 
 < Elliott V. Shaw, 32 Ohio St. 481. v. Hartley, Id. 525; Hubbell v. Hub- 
 6 Baker v. Kellogg, 29 Ohio St. 663. bell, 22 Id. 208 ; Mosher v. Butler, 31 
 6 Matter of Eaab's Estate, 16 Ohio Id. 188. 
 
 St. 274. 9 Gen. Laws 1872, § 700. 
 
 ■> Baxter v. Leith, 28 Ohio St. 84. " lUd. §§ 701-703. 
 
§ 134.] OPERATION OF ENABLING STATUTES. 227 
 
 as now declared and practiced in the courts of this common- 
 wealth, so as to allow husband and wife to testify against 
 each other, nor counsel to testify to the confidential com- 
 munication of his client ; and this act shall not apply to 
 actions by or against executors, administrators or guardians, 
 nor where the assignor of the thing or contract in action 
 may be dead, excepting in issues and inquiries devisavit vel non 
 and others, respecting the right of such deceased owner, 
 between parties claiming such right by devolution, on the 
 death of such owner." ^ 
 
 Under the above provisions a legatee is held a competent 
 witness in support of the will, on the trial of a feigned issue 
 to test its validity .2 The rule applies to a party to commer- 
 cial paper, negotiated in the ordinary course of business, 
 before maturity.^ And under it, the evidence of a defendant 
 in his own behalf, although unsupported and positively con- 
 tradicted by the plaintiff, must be submitted to the jury.* 
 Interest in the question does not disqualify ; it must be an 
 interest in the case itself.^ The statute is an enlarging one, 
 and renders no person incompetent as a witness Avho was 
 competent before its passage.® 
 
 1 Bright, Purd. Dig., 1883, Vol. I. 411; Hyneman's Estate, 11 Pliil. 135; 
 p. 727, § 20. White's Estate, 13 Id. 287 ; Hey- 
 
 2 Frew V. Clarice, 80 Pa. St. 171. drick's Appeal, 1 Atlantic Rep. 31 ; 
 2 State Bank v. Ehoads, 89 Pa. St. distinguishing Cox v. MeKean, 56 Pa. 
 
 353. St. 243. 
 
 * Shaffer v. Clark, 90 Pa. St. 94. Of the widow, or other distributee, 
 
 ^ McMurray's Appeal, 101 Pa. St. see Watson's Estate, 11 Phil. 99 ; 
 
 421. Forrester v. Torrance, 64 Pa. St. 29. 
 
 ^ Sheetz ;•. Hanbest, 81 Pa. St. 100; As to the effect of introducing tlie 
 
 Pratt V. Patterson, Id. 114. former testimony or deposition of the 
 
 For decisions applying the above decedent, see Speyerer o. Bennett, 70 
 
 and similar principles, in actions by Pa. St. 445; Evans u. Eeed, 84 Id. 
 
 or against persorMl representatives of 254 ; Lacock u. Commonwealth, 99 
 
 deceased persons, see Karns v. Tan- Id. 207. 
 
 ner, 66 Pa. St. 297 ; Pattison v. Arm- Competency of living party's testi- 
 
 strong, 74 Id. 476 ; Gray v. Whitney, many on former trial, see Pratt c. 
 
 81* Id. 332 ; Arthurs v. King, 84 Patterson, 81 Pa. St. 114. 
 
 Id. 525; Whitney v. Shippen, 89 Id. Cross-examination of living party, in 
 
 22; Harnish v. Herr, 98 Id. 6; such cases, see Lahey u. Heenan, 81 
 
 Stephens v. Cotterell, 99 Id. 188; Pa. St. 185; Bierly's Estate, 81* Id. 
 
 Bruner v. Wallace, 14 Phil. 178. 419. 
 
 As to the competency, in such For applications of these principles 
 
 actions, of the personal representative, in actions on bills and notes, see Dean 
 
 etc., himself, see Breneman's Estate, v. Warnock, 98 Pa. St. 565 ; Alcorn 
 
 65 Pa. St. 298 ; McClelland v. West, v. Cook, 101 Id. 209. Actions by or 
 
 70 Id. 183 ; Guldin v. Guldin, 97 Id. against surviving partners, see Hanna 
 
228 COMPETENCY. [CHAP. VIII. 
 
 § 135. Rhode Island. — " No person shall be disqualified 
 from testifying in any action at law, by reason of Lis being 
 interested therein or being a party thereto ; Provided, that 
 whenever an original party to the contract or cause of action 
 is dead, or is shown to the court to be insane, or whenever 
 an executor or administrator is a party to the suit, the other 
 party may be called as a witness by his opponent, but shall 
 not be admitted to testify upon his own offer or upon the call 
 of his co-plaintiff or co-defendant, otherwise than now by law 
 allowed, unless a nominal party merely, or unless the con- 
 tract in issue was originally made with a person who is living 
 and competent to testify, except as to such acts and contracts 
 as have been done or made since the decease of the executor's 
 testate or administrator's intestate ; and, provided further, 
 that no person shall be admitted to testify in any suit which 
 was pending on the twenty-eight day of March, one thousand 
 eight hundred and seventy-seven, in which either of the 
 parties to the original contract or cause of action was then 
 dead, by virtue of the exceptions aforesaid, as to cases in 
 which the conti-act in issue was originally made with a person 
 who is living and competent to testify, and as to such acts 
 and contracts as have been done or made since the decease of 
 the executor's testate or administrator's intestate." ^ 
 
 " In the trial of every civil cause, except a petition for 
 divorce, the husband and wife of either party shall be deemed 
 competent witnesses ; Provided, that neither shall be per. 
 mitted to give any testimony, tending to criminate the other 
 or to disclose any communcation made to him or her by the 
 other, during their marriage." ^ 
 
 " No person shall be deemed an incompetent witness, be- 
 cause of his conviction of any crime or sentence to imprison- 
 
 V. Wray, 77 Pa. St. 27; Standbridge Craig v. Brendell, Id. 153 (distinguish- 
 
 V. Catanach, 83 Id. 368; Brady v. tn<7 66 Id. 297) ; Gardner w. McLallen, 
 
 Reed, 87 Id. Ill; Hogeboom v. 79 Id. 398; Chase v. Irvin, 87 Id. 
 
 Gibbs, 88 Id. 235 ; Ash ;;. Guie, 97 Id. 286 ; Waltman v. Herdic, 90 Id. 459 ; 
 
 493; Runkell u. Phillips, 9 Phil. 619; Ewing v. Ewing, 96 Id. 381. Fore- 
 
 Zeh's Estate, 13 Id. 272 ; Packer v. closure suits, see Gamble v. Hepburn, 
 
 Noble, 103 Pa. St. 188. Actions 90 Pa. St. 439. Trover suits, see Hos- 
 
 respecting real property, generally, see tetter v. Schalk, 85 Pa. St. 220. 
 
 McEarren v. Mont Alto Iron Co., 70 i Pub. Stat. 1882, p. 587, § 33. 
 
 Pa. St. 180 ; Oram v. Eothermel, 98 = Ibid. § 36. See State v. Borden, 
 
 Id. 300 ; Murray v. New York &c. R. R, I. 495 ; Donnelly v. Smith, 7 R. 
 
 R. Co., 103 Id. 37. Ejectment suits, I. 12. 
 see ■Williams v. Davis, 69 Pa. St. 21 ; 
 
§ 136.] OPEEATION OP ENABLING STATUTES. 229 
 
 ment therefor, but shall be admitted to testify like any other 
 witness, except that such conviction or sentence may be 
 shown to affect his credibility." ^ 
 
 " No respondent in a criminal prosecution, offering himself 
 as a witness, shall be excluded from testifying because he is 
 such respondent, and the neglect or refusal so to testify shall 
 create no presumption against him."^ 
 
 " The husband or wife of any respondent in a criminal 
 prosecution offering himself or herself as a witness, shall not 
 be excluded from testifying therein because he or she is the 
 husband or wife of such respondent." ^ 
 
 In this State the disqualification of a party where an 
 executor is an adverse party, has been held to apply only 
 where an executor is a party as representing the estate, and 
 not merely as an appellee.* 
 
 § 136. South Carolina. — " No person ofi'ered as a witness 
 shall be excluded by reason of his interest in the event of the 
 action." ^ 
 
 " A party to an action or special proceeding in any and all 
 courts, and before any and all officers and persons acting 
 judicially, may be examined as a witness on his own behalf, 
 or in behalf of any other party, conditionally, on commission, 
 and upon the trial or hearing in the case, in the same man- 
 ner and subject to the same rules of examination as any other 
 witness; Provided, however, that no party to the action or 
 proceeding, nor any person who has a legal or equitable 
 interest which may be affected by the event of the action or 
 proceeding, nor any person who, previous to such examina- 
 tion, has had such an interest, however the same may have 
 been transferred to or came to the party to the action or 
 proceeding, nor any assignor of anything in controversy in 
 the action, shall be examined in regard to any transaction or 
 communication between such witness and a person at the 
 time of such examination, deceased, insane, or lunatic, as a 
 witness against a party then prosecuting or defending the 
 action as executor, administrator, heir-at-law, next of kin, 
 
 1 Ibid. § 38. As to the competency of parties 
 
 2 Ibid. § 39. under an early statute, upon the 
 ^ Ibid. § 40. issue of usury, see Sessions v. Eich- 
 * Hamilton v. Hamilton, 10 E. I. mond, 1 E. I. 298. 
 
 538. s Code Cir. Pro. 1882, p. 115, § 399, 
 
230 COMPETENCY. [CHAP. VIII. 
 
 assignee, legatee, devisee, or survivor of such deceased per- 
 son, or as assignee or committee of such insane person or 
 lunatic, when such examination, or any judgment or deter- 
 mination in such action or proceeding, can in any manner 
 affect the interest of such witness or the interest previously 
 owned or represented by him. 
 
 " But Avhen such executor, administrator, heir-at-law, next 
 of kin, assignee, legatee, devisee, survivor or committee, 
 shall be examined on his own behalf in regard to such trans- 
 action or communication, or the testimony of such deceased, 
 or insane person or lunatic, in regard to such transaction or 
 communication, (however the same may have been perpetu- 
 ated or made competent,) shall be given in evidence on the 
 trial or hearing in behalf of such executor, administrator, 
 heir-at-law, next of kin, assignee, legatee, devisee, survivor, 
 or committee, then all other persons not otherwise rendered 
 incompetent shall be made competent witnesses in relation 
 to such transaction or communication on said trial or hear- 
 ing. Nothing contained in section 8 of the Code of Proce- 
 dure shall be held or construed to affect or restrain the 
 operation of this section. 
 
 " (1) In any trial or inquiry in any suit, action or proceed- 
 ing, in any court or before any person having, by law, or 
 consent of parties, authority to examine witnesses or hear 
 evidence, the husband or wife of any party thereto, or of any 
 person in whose behalf any such suit, action, or proceeding 
 is brought, prosecuted, opposed, or defended, shall, except 
 as hereinafter stated, be competent and compellable to give 
 evidence, the same as any other witness, on behalf of any 
 party to such suit, action, or proceeding. 
 
 " (2) No husband or wife shall be compellable to disclose 
 any confidential communication made by one to the other 
 during their marriage." ^ 
 
 The prohibition of testimony by a party or person inter- 
 ested, as to transactions or communications with deceased 
 
 ^ Ibid. § 400. As to the compe- Id. 366; Harrison v. Dodson, 11 Id. 
 tency of parties under former statutes, 48. Competency of parties to prove 
 generally, see Mosley v. Eakin, 15 or rebut usury, see Luyten v. Hay- 
 Rich. 324; Twitty v. Houser, 7 So. good, 2 Bay, 177; Harick v. Jones, 
 Car. 153. Practice as to examination 4 McCord, 402; Wallis v. Nelson, 
 of adverse party, see Henken c. Gra- Harp. 144. 
 man, 2 Kich. 365 ; Chapman v. Clark, 
 
§ 136.] OPEEATION OF ENAELING STATUTES. 231 
 
 persons, etc., as it existed in the statutes preceding tlie one 
 recited above, was held not to apply in an action by a trustee 
 appointed by the court in place of a former deceased trustee, 
 against a surety in a bond, so as to shut out the testimony 
 of the principal obligor, in proof of payment of the bond 
 to the deceased trustee.^ So, also, a purchaser from a de- 
 ceased person was not, by his purchase, precluded from 
 testifying to declarations of his vendor.^ And in an action 
 against a town, the plaintiff could testify to transactions 
 between himself and a former intendant of the town, since 
 deceased.^ Again, in a suit by a remote alienee of land 
 from one deceased, for the recovery of the land, the defend- 
 ant could testify to conversations and transactions concern- 
 ing the land, had by him with the deceased. Such alienee 
 is not a representative within the statute.* 
 
 On the other hand, an interest in the controversy rendered 
 the witness, though not a party, incompetent to prove com- 
 munications in the nature of admissions made to him by the 
 deceased.^ In one case it is held that a party to the action 
 cannot testify as to declarations of the deceased in reference 
 to a personal transaction with himself, even though such 
 declarations were made, not to witness, but to a third person 
 in his presence.^ But that decision is opposed to the great 
 weight of authority, and to several subsequent adjudications 
 iii the same court.^ In another case it is held that the 
 incompetency of the party is not removed by the introduc- 
 tion of testimony as to the transactions or communications 
 in question, by other witnesses than the representatives 
 themselves.^ 
 
 The word " interest " in section 400 means interest pro- 
 moted ; therefore, in an action by the holder of negotiable 
 paper against the administrator of the principal maker, the 
 sureties may prove the execution of the note by their 
 deceased principal, although they are distributees of his 
 estate.^ 
 
 1 Guery v. Kinsler, 3 So. Car. 42.3. « Boykin v. "Watts, 6 So. Car. 76. 
 
 2 Jones V. Plunckett, 9 So. Car. 392. ' McLaurin v. Wilson, 16 So. Car. 
 See also Blakely «. Frazier, 11 Id. 122. 402; Shaw v. Cunningham, Id. 631; 
 
 2 Coleman v. Chester, 14 So. Car. Hughey v. Eichelberger, 11 Id. 36. 
 
 286. See also supra, § 130, subd. 10. 
 
 * Cantey v. Whitaker, 17 So. Car. 8 Brjce v. Hamilton, 12 So. Car. 32. 
 
 527. 8 Robinson v. Kobinson, 20 So. Car. 
 
 6 Earle v. Harrison, 18 So. Car. 329. 567. 
 
232 COMPETENCY. [CHAP. VIH. 
 
 § 137. Tennessee. — " Every person of sufficient capacity 
 to understand the obligation of an oath, is competent to be a 
 witness." ^ 
 
 " A negro, mulatto, Indian, or person of mixed blood, 
 descended from negro or Indian ancestors, to the third 
 generation inclusive, though one ancestor of each generation 
 may have been a white person, whether bond or free, is 
 incapable of being a witness in any cause, civil or criminal, 
 except for or against each other." ^ 
 
 " A nominal plaintiff, or naked trustee, shall not be incom- 
 petent as a witness on account of his being a party to the 
 record." ^ 
 
 " The judge of the court is a competent witness for either 
 party, in any cause tried before him, either of a civil or 
 criminal nature." ^ 
 
 "Persons are rendered incompetent by conviction and 
 sentence for the following crimes, unless they have been 
 restored to full citizenship under the law provided for that 
 purpose, viz. : Abuse of female child, arson, and felonious 
 burning, bigamy, burglary, felonious breaking and entering 
 mansion house, bribery, buggery, counterfeiting, or violating 
 any of the provisions to suppress the same, destroying will, 
 forgery, house-breaking, incest, larceny, perjury, robbery, 
 receiving stolen property, rape, sodomy, stealing free person 
 of color, stealing slaves, stealing bills of exchange or other 
 valuable papers, subornation of perjury." ^ 
 
 " In all suits between corporations and one or more of the 
 stockholders, any other stockholder is a competent witness 
 for either party." ^ 
 
 "In all civil courts, no witness shall be incompetent for 
 the reason that he or she is a party to said cause, or may 
 have an interest in the subject-matter thereof." '' 
 
 " That chapter 75, entitled an Act to make rules of evidence 
 in the Federal and State Courts uniform, passed on the 13th 
 of March, 1868, be in force from and after the passage of 
 this Act." 8 
 
 "In all Civil Courts in this State, no person shall be in- 
 
 1 Stat. 1871, p. 1552, § 3807. ^ Ibid. § 3812. 
 
 2 Ibid. § 3808. « Ibid. p. 1554, § 3813. 
 
 3 Ibid. p. 1553, § 3810. ' Ibid. § .S813 (a). 
 
 4 Ibid. § 3811. 8 /M. § 3813 (6). 
 
§ 137.J OPERATION OP ENABLING STATUTES. 233 
 
 competent to testify because he or she is a party to or inter- 
 ested in the issue tried." ^ 
 
 " In actions or proceedings by or against executors, admin- 
 istrators or guardians, in which judgments may be rendered 
 for or against them, neither party shall be allowed to testify 
 against the other as to any transaction with, or statement by 
 the testator, intestate or ward, unless called to testify thereto 
 by the opposite party or required to testify thereto by the 
 court." 2 
 
 "That the' first section, and no other, of the Act passed 
 November 26, 1869, entitled 'an Act to amend an Act entitled 
 an Act to make the rules of evidence in the Federal and State 
 Courts uniform,' passed March 13, 1868, and all laws contrary 
 to the provisions of this act be, and the same are hereby 
 repealed." ^ 
 
 "In all cases, where husband and wife sue or are sued 
 jointly, the wife shall not be held incompetent to testify as 
 to the matter and substance in controversy that transpired 
 while she was a feme sole, or before marriage, although the 
 husband may have acquired an interest in the subject-matter 
 of the controversy by the marriage."* 
 
 In construing the acts of 1869 and 1870 (the provisions 
 corresponding to §§ 3813 (a) and 3813 (c)), the courts have 
 held the assignor of a note competent to testify in favor of 
 the assignee, in a suit against the maker in the name of the 
 assignor;^ that a railroad employee is competent to prove 
 that an accident was unavoidable;^ and that the act of 
 1870 does not render a wife competent to testify for or 
 against her husband where they " sue or are sued jointly." ^ 
 
 As respects transactions and communications with deceased 
 persons, it has been held that on sei. fa. in favor of an execu- 
 trix, to revive a judgment obtained by the testator, the princi- 
 pal debtor in the judgment who was not made a party in the 
 proceedings to revive, is competent to prove the payment of 
 the judgment debt.^ That heirs-at-law of the deceased may 
 
 ^ Tbid. § 3813 (c). See also, for early adjudications, An- 
 
 2 Ibid. § 3813 (d). derson v. Bradie, 7 Yerg. 297; Good- 
 
 8 76jrf. p. 1555, §3813 (e). ner v. Browning, 9 Humph. 783; 
 
 1 Ibid. § 3813 (/). . ' Walker v. Skeene, 3 Head, 1 ; Wil- 
 
 ^ Gardner v. Smith, -5 Heisk. 256. liams v. Lenoir, 8 Baxt. 395. 
 
 ^ Grable v. Louisville &c. E. E. Co., * Kelton v. Jacobs, 5 Baxt. 574. 
 
 2 Lea, 246. Compare Aymett v. Butler, 8 Lea, 
 
 ' Goodman v. Nicklin, 6 Heisk. 256. 453. 
 
234 COMPETENCY. [CHAP. VIII. 
 
 prove the declarations made at the time of placing them in 
 possession of property with -which they are sought to be 
 charged as advancements.^ That in an action of replevin 
 against an administrator, the vendor of the plaintiff may 
 testify as to an agreement between himself and the deceased, 
 respecting the chattel in question.^ And that in an action 
 by a widow in the name of her husband's administrator, to 
 recover damages for the killing of her husband, both the 
 widow and the defendant are competent witnesses as to the 
 circumstances of the killing.^ So, also, upon the trial of an 
 action against a widow, the plaintiff may testify as to his 
 contract with the deceased husband. The widow is not his 
 representative.* Again, in will contests the parties are com- 
 petent to prove conversations with or declarations of the 
 testator, bearing on the issne.^ And where one of the 
 makers and the executor of the other maker of a note are 
 sued, and the executor alone appeals from the judgment, the 
 surviving maker is no longer a party to the suit and may 
 testify upon its trial in the appellate court.^ Where, after 
 the joinder of issue, the complainant has filed his own dep- 
 osition and died, the defendant may afterwards give his own 
 deposition in evidence. " If the dead has testified, the living 
 may." ^ And a party may testify as to the terms of a contract 
 made by him with the son of the deceased person, acting at 
 the time as his father's agent.^ 
 
 § 138. Texas. — " No person shall be incompetent to testify 
 on account of color, nor because he is a party to a suit or 
 proceeding, or interested in the issue tried." ^ 
 
 Husband and wife are competent except as to confidential 
 communications.^'' 
 
 In actions by or against personal representatives and guar- 
 dians neither party may testify " against the others as to any 
 transaction with, or statement by, the testator, intestate, or 
 ward, unless called to testify thereto by the opposite party." ^^ 
 
 " No person shall be incompetent to testify on account of 
 religious opinions, or for want of any religious belief." ^^ 
 
 ' O'Neal V. Breecheen, 5 Baxt. 604. ^ Cottrell v. Woodson, 11 Heisk. 
 
 2 Rielly v. English, 9 Lea, 16. 681. 
 
 " Hale V. Kearly, 8 Baxt. 49. 9 Rev. Stat. 1879, art. 2246. 
 
 * Johnson v. Hall, 9 Baxt. 351. i" Ibid. art. ^247. 
 
 5 Orr V. Cox, 3 Lea, 617. " Ibid. art. 2248. 
 
 6 Fuqua u. Dinwiddle, 6 Lea, 645. '^ 7j,y. art. 2249. 
 
 • Bingham i>. Lavender, 2 Lea, 48. As to the right of parties to testify 
 
§ 138.] OPEEATION OP ENABLING STATUTES. 235 
 
 As regards testimony concerning " transactions witli or 
 statements by" deceased persons, it has been held that where 
 suit is brought against a firm, and one of the defendants dies 
 pending the suit, the plaintiff may testify to declarations of 
 the deceased partner where his personal representatives have 
 not been made parties ; ^ that where the deceased person's 
 deposition has been admitted, the other party may testify to 
 the same matters;^ and that the rule of exclusion does not 
 apply when the suit is against co-defendants, of whom only 
 one is dead, and the contract was made either with the living 
 co-defendant or with the living and the dead concurrently.^ 
 
 On the other hand, it is held that one who sues an admin- 
 istrator, for services rendered, and supplies furnished, to the 
 deceased, is not competent to prove such labor or supplies, 
 or their value ; * that the testimony of an administrator to a 
 conversation between deceased and defendant, to establish 
 the contract on which he sues, is not admissible ; ^ that 
 testifying, in an action against an executor, to having en- 
 trusted money to the deceased to be loaned by him, is testi- 
 fying to a transaction with deceased within the statutory 
 prohibition ; ^ that where heirs are made parties defendant 
 after the death of the original defendant, the plaintiff cannot 
 testify as to conversations, etc., with such original defend- 
 ant,^ and that a party to a suit against heirs, claiming the 
 property in controversy through their deceased ancestor, is 
 precluded from testifying, not only as to statements made 
 by the deceased to him, and to transactions had between the 
 deceased and himself, but also as to such statements and trans- 
 
 under earlier statutes, in certain cases, Claus, 15 Id. 516 ; Lovett v. Casey, 
 
 see Parsons v. Phipps, 4 Tex. 341; 17 Id. 594 ; Dikes ti. Cordova, Id. 618 ; 
 
 Gillespie v. Eedmond, 13 Id. 9; Tucker Walker v. Burbridge, Id. 650 ; Clardy 
 
 V. Willis, 24 Id. 247. Eight of party v. Callicoate, 24 Id. 170 ; Garthwaite 
 
 to prove his own account, see Hipp v. v. Hart, Id. 314 ; Gill v. Campbell, Id. 
 
 Ingram, 3 Tex. 17; McGee z;. Curry, 405; Morrison n. Bean, 25 Id. (Supp.) 
 
 4 Id. 217; Johnson u. Ward, 21 Id. 442; McGown v. Eandolph, 26 Id. 
 
 475. Substituting new bond in order 492 ; Busby v. Scott, 29 Id. 196. 
 to examine a surety, see Drake v. Bran- ^ Eoberts v. Yarboro, 41 Tex. 449. 
 der, 8 Tex. 351. '' Runnels v. Belden, 51 Tex. 48. 
 
 As to the former practice on the ^ Bennett v. Prary, 55 Tex. 145. 
 examination of an adverse party by * Barnhill v. Kirk, 44 Tex. 590. 
 means of interrogatories, see McMillan ^ Stringfellow v. Montgomery, 57 
 
 V. Croft, 2 Tex. .397; Beal v. Alexan- Tex. 349. 
 
 der, 6 Id. 531; Harrison v. Knight, 7 " Altgelt v. Brister, 57 Tex. 432. 
 Id. 47; Handley v. Leigh, 8 Id. 129; ' McCampbell w. Henderson, 50 Tex. 
 
 Pord V. Clements, 13 Id. 592 ; Meyer v. 601. 
 
236 COMPETENCY. [CHAP. VIII. 
 
 actions between deceased and third persons, although occur- 
 ring at a time when the witness had no interest in such 
 statements or transactions.^ 
 
 § 139. Utah. — All persons are competent in any action 
 or proceeding, except in actions or proceedings by or against 
 the representatives of a deceased person, " when the facts to 
 be proved transpired before the death of such deceased per- 
 son. . . ."^ The exceptions are persons convicted of felony, 
 unless pardoned or the conviction reversed on appeal;^ 
 husband and wife, unless the action or proceeding is by one 
 against the other;* attorneys ; ^ clergymen ; ® physicians;^ 
 and public officers,^ the language being substantially the 
 same as in the statutes of California.^ 
 
 § 140. Vermont. — " No person shall be disqualified as a 
 witness in a civil suit or proceeding, at law or in equity, by 
 reason of his interest in the event of the same, as a party 
 or otherwise ; but such interest may be shown for the pur- 
 pose of affecting his credit." ^^ 
 
 " In actions, except actions of book account, where one of 
 the original parties to the contract or cause of action in issue 
 and on trial is dead, or is shown to the court to be insane, 
 the other party shall not be admitted to testify in his own 
 favor, except to meet and explain the testimony of living 
 witnesses produced against him as to facts or circumstances 
 taking place after the death or insanity of the other party ; 
 or upon a question upon which the testimony of the party 
 afterward deceased, or insane has been taken in writing or by 
 a stenographer in open court, to be used in such action, and is 
 used therein." ^^ 
 
 " No person shall be incompetent as a witness in any court, 
 matter, or proceeding, on account of his opinions on matters 
 of religious belief; nor shall a witness be questioned, nor 
 testimony be taken or received, in relation thereto." ^^ 
 
 " No person shall be incompetent as a witness in any court, 
 matter, or proceeding, by reason of his conviction of a crime 
 
 1 Parks V. Caudle, 58 Tex. 216. ' Ibid. § .382. 
 
 2 Comp. L. 1876, p. 505, §§ 374, 375, « Ibid. § 883. 
 377. 9 Supra, p. 159. 
 
 3 Ibid. § 378. 10 Kev. Stat. 1880, p. 243, § 1001. 
 
 4 Ibid. § 379. " Ibid. § 1002. 
 6 Ibid. § 380. 12 Ibid. § 1007. 
 6 Ibid. § 381. 
 
§ 140. J OPEEATION OP ENABLING STATUTES. 237 
 
 other than perjury, subornation of perjury, or endeavoring to 
 incite or procure another to commit the crime of perjury ; but 
 the conviction of a crime involving moral turpitude may be 
 given in evidence to affect the credibility of a witness." ^ 
 
 Under the law, as it stood prior to the enactment of section 
 1002,2 yvith regard to the testimony of the living partj% where 
 the other party was dead, an agent or officer through whom 
 a contract was made, was not in any legal sense regarded as 
 a party to the contract, so that his death should operate to 
 exclude the testimony of the other party to the contract.^ 
 The prohibition extends not only to the surviving party to 
 the record, but to one not a party to the record, if he is a 
 party to the contract in issue and on trial.* 
 
 Where the administrator defendant introduces, under a 
 plea of accord and satisfaction, a writing from his intestate 
 to the plaintiff, the latter cannot explain the writing, and 
 show what was said and done when it was made and delivered 
 to him.^ So, also, in an action to set aside a gift as having 
 been induced by undue influence, if the donee be dead the 
 donor cannot testify in his own behalf.^ And in an action 
 by a woman's guardian to annul her marriage with her 
 deceased husband, on the ground that her consent was 
 obtained by fraud, she is not a competent witness.^ So, 
 also, the payor of a negotiable note cannot testify to the 
 fact of a payment, the note having been assigned subse- 
 quently, the payee being dead and the suit brought in the 
 name of the assignee.^ 
 
 It has been very recently held that a husband who is 
 administrator of the estate of his wife's father, she being sole 
 heir, is a competent witness in an action, prosecuted by him 
 as administrator, to recover damages occasioned by the de- 
 fendant raising his dam, and thereby causing the water to 
 set back on the intestate's land ; and this on the ground that 
 the wife was not an actual party to the suit, and section 1001 
 had removed the disqualifying element of interest. But if 
 
 1 Ibid. § 1008. 6 -Wade v. Pulsifer, 54 Vt. 45. 
 
 2 Gen. Stat. ch. 36, § 24. ' Davis v. Plymouth, 45 Vt. 492. 
 
 ^ Poquet V. North Hero, 44 Vt. 91. ^ Partners' Mut. Pire Ins. Co. v. 
 
 * Davis u. Windsor Savings Bank, Wells, 53 Vt. 14. See also Hall ;•. 
 
 48 Vt. 532. Compare Tute v. James, Hamblett, 51 Vt. 589; Read v. Stur- 
 
 50 Vt. 125. tevant, 40 Vt. 521. 
 
 ^ Woodbury v. Woodbury, 48 Vt. 94. 
 
238 COMPETENCY. [CHAP. VIII. 
 
 the husband were disqualified because of his wife's interest, 
 her release, executed to a third party in trust for her hus- 
 band, with an indemnity to her against costs, would not 
 remove his incompetency. In such a case the defendant is 
 not a competent witness under section 1003, to prove facts 
 that bear directly npon the main issue ; or facts collateral to 
 the issue, if immaterial ; or a contract evidenced by deed, 
 though made Avith a party now living.^ 
 
 § 141. Virginia. — " No witness shall be incompetent to 
 testify because of interest ; and in all actions, suits, or other 
 proceedings of a civil nixture, at law or in equity, before any 
 court, or before a justice of the peace, commissioner, or other 
 person having authority by law, or by consent of parties to 
 hear evidence, the parties thereto, and those on whose behalf 
 such action, suit, or proceeding is prosecuted or defended, 
 shall, if otherwise competent to testify, and subject to the 
 rules of evidence and of practice applicable to other wit- 
 nesses, be competent to give evidence on their own behalf, 
 and shall be competent and compellable to attend and give 
 evidence on behalf of any other party to such action, suit, or 
 proceeding, except as hereafter provided ; but in any case 
 at law, the court may, for good cause shown, require any 
 party to attend in person and testify ore tenus, or exclude 
 his deposition upon his failure to attend." ^ 
 
 " Nothing in the preceding section shall be construed 
 to alter the rules of law now in force, in respect to the 
 competency of husband and wife as witnesses for or against 
 each other during the coverture, or after its termination, nor 
 in respect to attesting witnesses to wills, deeds, or other 
 instruments ; and where one of the original parties to the 
 contract, or other transaction, which is the subject of the 
 investigation, is dead, or insane, or incompetent to testify, 
 by reason of infamy, or any other legal cause, the other 
 
 1 Wiley V. Hunter, 2 East. Eep. 228. Vt. 561. How the rule was applied in 
 For decisions under earlier statutes actions of booh-account, see Johnson v. 
 as to competency of parties, generally, Dexter, 37 Vt. 641 ; Hunter v. Kit- 
 in actions by or against personal rep- tredge, 41 Vt. 359 ; in ejectment suits, 
 resentatives, see Kimball c-. Baxter, see HoUister v. Young, 41 Vt. 166. 
 27 Vt. 628; Hulett v. Hulett, 37 Vt. Effect of the rule on the testimony of 
 581 ; Calderwood v. Calderwood, 38 husband and wife, see Wood v. Shurt- 
 Vt. 171; Graham t). Chandler, Id. 559; leff, 46 Vt. 325; Davis v. Davis, 48 
 Ford V. Cheney, 40 Vt. 153 ; Dawson Vt. 502. 
 V. Wait, 41 Vt. 626; Morse v. Low, 44 2 Code of 1873, p. 1109, § 21. 
 
§ 141.J OPEEATION OF E]SrABLING STATUTES. 239 
 
 party shall not be admitted to testify in his own favor, or in 
 favor of any other party having an interest adverse to that 
 of the party so incapable of testifying, unless he shall be 
 first called to testify on behalf of such last-mentioned party, 
 or unless some person having an interest adverse to that of the 
 party so incapahle of testifying, shall have previously testified 
 to some fact occurring hefore such inahility accrued ; or unless 
 the contract or other transaction, which is the subject of the 
 investigation, was made or had with the agent of the party so 
 incapahle of testifying, who is alive and competent to testify ; 
 or unless, in the case of partners or joint contractors, ivhen the 
 person who has become incapable of testifying ivas not the only 
 partner or other joint contractor with ivhom such contract or 
 other transaction was personally made or had ; and where 
 one of the parties is an executor, administrator, curator, or 
 committee, or other person representing a dead person, 
 an insane person, or a convict in the penitentiary, the other 
 party shall not be permitted to testify in his own favor, unless 
 such contract or other transaction was originally made or had 
 with a person who is living and competent to testify, except 
 as to such things as have been done since the powers of such 
 fiduciary were assumed ; and except, also, when some other 
 party in interest has previously testified ; or unless some person 
 having an interest adverse to the party so incapable of testi- 
 fying, shall have previously testified as aforesaid : provided, 
 however, that no witness who would have been competent to 
 testify as the law stood before the passage of this and the pre- 
 ceding section, shall be rendered incompetent hereby.''' ^ 
 ' Under the first clause of section 21, an accomplice not yet 
 convicted was held competent.^ 
 
 The decisions interpreting section 22 are few, and will be 
 found collected in the note.^ 
 
 1 Ibid. § 22, as amended by Laws ' Field v. Brown, 24 Gratt. 74 ; 
 1876-7, ch. 256, p. 265. The amend- Mason o. Wood, 27 Id. 783 ; Grigsby 
 ment consisted, substantially, in the v. Simpson, 28 Id. 348 ; Buckholder v. 
 addition of the words italicized in the Ludlam, 30 Id. 255 ; Morris v. Grubb, 
 text. Chap. 256 only added the last Id. 286 ; JParent v. Spitler, Id. 819 ; 
 proviso, the other amendments having Eeynolds v. Callaway, 31 Id. 430; 
 been previously made by the same Carter u. Hale, 32 Id. 115; Simmons 
 legislature. Laws, 1870-7, ch. 198, p. v. Simmons, 33 Id. 451 ; Knick v. 
 184. Knick, 75 Va. 12 ; Kelly v. Board of 
 
 2 Oliver v. Commonwealth, 77 Va. Public Works, Id. 263 ; Keran u. Trice, 
 590 ; and see this case as to compe- Id. 690. 
 
 tency of infants. 
 
240 COMPETEITCY. [CHAP. VIIL 
 
 § 142. Washington Territory. — " Witnesses competent to 
 testify in civil cases shall be competent in criminal prosecu- 
 tions, but regular physicians or surgeons, clergymen or priests, 
 shall be protected from testifying as to confessions, or infor- 
 mation received from any defendant, by virtue of their pro- 
 fession and character ; Indians shall be competent witnesses 
 as hereinbefore provided, or in any prosecutions in which an 
 Indian may be a defendant." ^ 
 
 The statute as to witnesses in civil cases contains provis- 
 ions similar to those of the western states and territories, in 
 many respects, and the repetition of its verbiage here is un- 
 necessary. The local practitioner will notice such differences 
 as maj^ vary the construction given to the provisions referred 
 to.2 
 
 It has been recently held that in an action by an adminis- 
 trator to recover property of his intestate converted by de- 
 fendant, who sets up as a defense that he took said property 
 as administrator of deceased, an heir or distributee, who is 
 not a party to the record nor directly interested in the result 
 of the action, is not rendered incompetent as a witness on 
 behalf of the defendant by the statute last cited.^ 
 
 § 143. West Virginia. — " No person offered as a witness 
 in any civil action, suit, or proceeding, shall be excluded by 
 reason of his interest in the event thereof."* 
 
 " A party to a civil action, suit, or proceeding, may be 
 examined as a witness in his own behalf, or in the behalf of 
 any other party, in the same manner and subject to the same 
 rules of examination as any other witnesses, except as fol- 
 lows : (1) An assignor of a chose in action shall not be ex- 
 amined in favor of his assignee, unless the opposite party be 
 living ; (2) A party shall not be examined in his own behalf, 
 in respect to any transaction or communication had personally 
 with a deceased person, against parties who are the executors, 
 administrators, heirs-at-law, next of kin, or assignees of such 
 deceased person, where they have acquired title to the cause 
 of action from or through such deceased person, or have been 
 sued as such executors, administrators, heirs-at-law, next of 
 kin, or assignees. But where such executors, administrators, 
 heirs-at-law, next of kin, or assignees, shall be examined on 
 their own behalf, in regard to any conversation or transac- 
 
 1 Code, 1881, § 1069. 3 McCoy v. Ayers, 5 Pac. Rep. 843. 
 
 2 See supra, §§ 101, 103, 104, 106. " Eev. St.at. 1870, ch. 85, § 22. 
 
§ 143.] OPERATION OF BKABLING STATUTES. 241 
 
 tion with such deceased person, then the said assignor or party- 
 may be examined in regard to the same conversation -or transac- 
 tion ; (3) If tlie deposition of a party to the action, suit, or pro- 
 ceeding has been taken, and he shall afterwards die, and after 
 his death such deposition be used upon any trial or hearing 
 in behalf of his executors, administrators, heirs-at-law, next 
 of kin, or assignees, the other party, or assignor, shall be a 
 competent witness as to any and all matters to which such 
 deposition relates ; (4) This and the preceding section shall 
 not apply to any action, suit, or proceeding, commenced 
 prior to the seventh day of February, eighteen hundred and 
 sixty-eight, in which a judgment or final decree has been 
 obtained, and a new trial or rehearing has been or shall be 
 awarded therein ; but in all such actions, suits, or proceed- 
 ings, the rules of evidence shall be the same as if this and the 
 preceding section had not been enacted; (5) A husband 
 shall not be examined for or against his wife, nor a wife for 
 or against her husband, except in an action or suit between 
 husband and wife ; (6) A guardian, committee, or other fidu- 
 ciary shall not be examined as a witness against his ward, or 
 the person he represents, as to any transaction in his fidu- 
 ciary capacity, unless the ward or person affected thereby is 
 in a condition to testify as to the same transaction ; (7) A 
 party to an action, or person interested in the event thereof, 
 shall not testify in his own behalf against a deaf or dumb 
 person, unless the evidence of such deaf or dumb person has 
 been taken in the case." ^ 
 
 " No person shall be incompetent as a witness on account 
 of race or color." ^ 
 
 In interpreting subdivision (1) of section 23, the courts 
 have held that where both the assignor and the assignee of a 
 chose in action are parties to a suit to recover the money due 
 upon such chose in action, and the debtor is dead, the assignor 
 is incompetent to testify in favor of his assignee. And a 
 release, made by the assignee to the assignor, from all and 
 every liability to recourse or otherwise, as assignor of the 
 chose in action, does not make the assignor competent to tes- 
 tify in favor of the assignee.^ This subdivision has been held 
 
 1 Ihid. § 23. 1 W. Va. 43 ; Zink f. Wilson, 3 Id. 
 
 2 Ibid. § 24. Tor decisions under 503 ; Newllnd v. Beard, Id. 110. 
 earlier statutes, see Lazzell v. Mapel, " White v. Heavner, 7 W. Ya. 324. 
 
242 COMPETENCY. [CHAP. VIII. 
 
 not to apply to actions against surviving partners, they not 
 being deemed "assignees," in law, of their deceased part- 
 ners.i 
 
 Under subdivision (2) of section 23, it has been held that 
 a Avitness is not thereby disqualified unless he is called to 
 testify in his own behalf ; '■^ in which case, being the plaintiff, 
 he cannot testify as to services rendered by him to the de- 
 ceased person.^ But if the administrator plaintiff examines 
 an heir-at-law as a witness relative to a transaction between 
 the decedent and the defendant, alleged to render the defend- 
 ant liable, the latter is competent to testify in his own behalf 
 as to that transaction, though not as to others.* 
 
 In construing subdivision (3) of the same section, the de- 
 position of the living party is held to be inadmissible, though 
 taken before the death or the deceased, if offered afterwards.^ 
 
 § 144. Wisconsin. — " No person shall be disqualified as a 
 witness in any action or proceeding, civil or criminal, by 
 reason of his interest in the event of the same, as a party or 
 otherwise; and every party shall be in every such case a 
 competent witness, except as otherwise provided in this 
 chapter. But such interest or connection may be shown to 
 affect the credibility of the witness."" 
 
 " No party, and no person from, through, or under whom a 
 party derives his interest or title, shall be examined as a 
 witness in respect to any transaction or communication by 
 him personally with a deceased person, or with a person then 
 insane, in any civil action or proceeding, in which the oppo- 
 site party derives his title, or sustains his liability, to the 
 cause of action, from, through or under such deceased person 
 or such insane person, or in which such insane person is a party 
 prosecuting or defending by guardian ; unless such opposite 
 party shall first be examined, or examine some other witness 
 in his behalf, concerning some transaction or communication . 
 between the deceased or insane person and such party or 
 person, or unless the testimony of such deceased person, 
 given in his lifetime, or of such insane person, be first read 
 or given in evidence by the opposite party; and then, in 
 either case respectively, only in respect to such transaction 
 
 1 Carlton v. Mays, 8 W. Va. 245. « Metz v. Snodgrass, 9 "W. Va. 190. 
 
 2 Beall V. Shaull, 18 W. Va. 258. ^ Zane v. Fink, 18 W. Va. 693. 
 
 8 Owens V. Owens, 14 W. Va. 88. 6 Rev. Stat. 1878, p. 991, § 40(58. 
 
§ 144. J OPERATION OP ENABLIlSra STATUTES. 243 
 
 or communication of wliich testimony is so given, or to the 
 matters to -which such testimony relates."^ 
 
 " No party, and no person from, through or under whom a 
 party derives his interest or title, shall be examined as a 
 witness in respect to any transaction or communication by 
 him personally with an agent of the adverse party, or an 
 agent of the person from, through or under whom such 
 adverse party derives his interest or title, when such agent is 
 dead or insane, or otherwise legally incompetent as a witness ; 
 unless the opposite party shall first be examined, or examine 
 some other witness in his behalf, in respect to some transac- 
 tion or communication between such agent and such other 
 party or person ; or unless the testimony of such agent, at 
 any time taken, be first read or given in evidence by the 
 opposite party ; and then, in either case respectively, only in 
 respect to such transaction or communication of which testi- 
 mony is so given, or to the matters to which such testimony 
 relates."^ 
 
 "A husband or wife shall not be allowed to disclose a 
 confidential communication made by one to the other during 
 their marriage, without the consent of the other. In an 
 action for criminal conversation, the plaintiff's wife is a com- 
 petent witness for the defendant as to any matter in contro- 
 versy, except as aforesaid." ^ 
 
 " A person who has been convicted of a criminal offense 
 is, notwithstanding, a competent witness ; but the conviction 
 may be proved to affect his credibility, either by the record 
 or by his own cross-examination, upon which he must answer 
 any question relevant to that inquiry, and the party cross- 
 »examining him is not concluded by his answer."* 
 
 " A clergyman, or other minister of any religion, shall not 
 be allowed to disclose a confession made to him in his pro- 
 fessional character, in the course of discipline enjoined by 
 the rules or practice of the religious body to which he 
 belongs, without consent thereto by the party confessing."^ 
 
 " No person duly authorized to practice physic or surgery 
 shall be compelled to disclose any information which he may 
 have acquired in attending any patient in a professional 
 
 1 7iz<3. § 4069. * Ibid. § 40'iS. 
 
 2 Ibid. § 4070. 6 Ibid. § 4074. 
 
 3 Ibid. § 4072. 
 
244 COMPETENCY. [CHAP. Till. 
 
 character, and MrHch information was necessary to enable 
 him to prescribe for sucli patient as a physician, or to do any 
 act for him as a surgeon." ^ 
 
 " An attorney or counsellor at law shall not be allowed to 
 disclose a communication made by his client to him, or his 
 advice given thereon, in the course of his professional employ- 
 ment." 2 
 
 The provision restricting the examination of a surviving 
 party to a transaction, against the representative of the 
 party deceased, only forbids his testifying as to any trans- 
 action or communication had personally with the deceased. 
 His testimony, that he had received by mail a certain letter 
 purporting to be written by the decedent before his death, 
 could not be directly contradicted by deceased, if living, and 
 therefore such testimony is admissible.^ So, in a suit by the 
 representative, the defendant may testify to conversations 
 had by him with plaintiff's witnesses touching matters sworn 
 to by them, but not as to agreements or conversations had 
 between him and plaintiff's intestate, or payments made by 
 him to the latter.* 
 
 Again, where the executor sues the alleged makers of a 
 note made payable to his testator, the defence being alter- 
 ation after execution, one of the defendants may testify as 
 to when and with what ink he signed the note, and whether 
 he struck out words in the printed form which appeared to 
 have been stricken out.^ And in an action for the conver- 
 sion of notes belonging to the decedent and payable to 
 bearer, a witness for the defence may state the facts and 
 circumstances under which he obtained possession of the 
 notes.^ In neither of the last two instances is the testimony . 
 
 1 Ibid. § 4075. sha, 30 Id. 492. As to the right of a 
 
 ^ Ibid. § 4076. defendant to prove usury, see Dudley 
 
 For decisions under previous stat- u. Beck, 3 Wis. 274. Competency of 
 
 utes, allowing a party to testify in his parties under early statutes, in actions 
 
 own hehalf, after calling the adverse on hiUs and notes, see McHose v. Cain, 
 
 party, or after giving him notice of his 22 Wis. 480 ; in actions for divorce, see 
 
 intent to testify, see Ecker v. Moore, 2 Hays v. Hays, 19 Wis. 182 ; in actions 
 
 Chand. 85 ; Hart v. Janes, 1 WJs. 61 ; to try title to land, see Wisconsin Bank 
 
 Miller v. Waterman, 2 Id. 90 ; Hub- u. Morley, 19 Wis. 62. 
 
 bell V. Noonan, 8 Id. 214; Smith v. « Daniels w. Foster, 26 Wis. 686. 
 
 Swarthout, 15 Id. 550; Sikaz). Chicago, * Koenig v. Katz, 37 Wis. 153. 
 
 &c. E. Co., 21 Id. 370 ; Ernst v. The ^ Page v. Danaher, 43 Wis. 221. 
 
 Brooklyn, 22 Id. 649; First Nat. Bank 6 Adams v. Allen, 44 Wis. 93. 
 V. Wood, 26 Id. 500 ; Potter v. Mena- 
 
§ 145.J OPEIIATION OF ENABLING STATUTES. 245 
 
 relative to a transaction with the deceased. And the testi- 
 mony of a party as to transactions by him with a deceased 
 person from whom the opposite party derives title may prop- 
 erly be received, so far as it is merely an admission against 
 his interest of payments made by such deceased person.^ 
 
 On the other hand one who dealt with an agent, since 
 deceased, cannot prove the statements of such agent, in 
 relation to a transaction between himself and such deceased 
 agent ; ^ and the fact that a deposition of such deceased 
 agent, which had been taken on the part of the plaintiff, to 
 be used on the trial, has been put in evidence 6y the defendant, 
 will not render the latter competent to testify as to his 
 transactions with such agent referred to in the deposition.^ 
 One partner is an agent of his co-partners, within this rule.* 
 
 Again, an administrator who has paid out of the estate of 
 his intestate money for the support and education of the heirs, 
 without an order of the court, in proving the items so paid is 
 within the prohibition of sections 4069 and 4070, and cannot 
 testify in his own behalf, as a witness, in respect to any trans- 
 action or communication in relation to such payments, by 
 him personally, with a deceased heir to whom it is alleged 
 such payments were made for the benefit of the other heirs.'' 
 
 § 145. 'Wyoming Territory. — Neither interest in the event, 
 the fact of being a party to the record, nor conviction of 
 crime, will exclude a witness, but these facts may be shown 
 to affect the credibility of the witness.^ The exceptions are, 
 persons of unsound mind at the time of production to testify, 
 children under ten, husband and wife, attorneys, clergymen, 
 and assignors who were incompetent before the assignment 
 was made.^ 
 
 With regard to transactions with deceased persons, etc., it 
 is provided as follows : — 
 
 " No party shall be allowed to testify by virtue of section 
 three hundred and nineteen, when the adverse party is the 
 
 1 Crowe V. Colbeth, 24 N. W. Eep. ^ In re Fitzgerald, 15 N. "W. Eep. 
 478. 794. 
 
 2 Cornell v. Barnes, 26 Wis. 473. e Laws 1876, p. 73, § 319. 
 
 3 Mclndoe v. Clarke, 15 N. W. Eep. ' Ibid. § 321. The language is sub- 
 17. stantially the same as contained in 
 
 * Bogers v. Brightman, 10 Wis. 55 ; the Kansas statute, § 3851. See supra, 
 Lawrence v. Vilas, 20 Id. 381. See p. 183, and in the Kentucky statute, 
 also Bill V. Stoll, 55 Id. 216. § 26. See supra, p. 185. 
 
246 COMPETEKCY. [CHAP. VIU. 
 
 guardian of an idiot, or a lunatic, or a deaf and dumb person, 
 or the executor or administrator of a deceased person, or the 
 guardian of a child or children of a deceased person, when 
 the facts to be proved transpired before the death of such 
 deceased person, except in suits upon contracts which shall 
 have been entered into by deceased persons, by agents, in 
 which cases, if the agent be a witness, the opposite party 
 may testify as to all that transpired between such party and 
 the agent in relation to such contract, and the making of the 
 same ; excepting, also, cases where the claim or defence is 
 founded on book account, then the party shall be permitted 
 to testify that the entries are in his handwriting, that the 
 book containing the same is his book of original entries, and if 
 the original entries in said book of accounts have been made 
 by a person who at the time of such trial is deceased, or a 
 disinterested person, who is a non-resident of the Territory, 
 on proof of such decease and non-residence, and that said 
 entries are in the handwriting of such person, or such proof 
 b}' the party as hereinbefore provided, then it shall be com- 
 petent to admit said book of original entries as evidence, the 
 weight to be given to such evidence in either case, however, 
 being left to the court or jury to determine ; and in all 
 actions by or against a surviving partner or partners, or a 
 surviving joint contractor or contractors, any party to the 
 action shall be incompetent as a witness to testify to trans- 
 actions which took place with, or declarations or admissions 
 made by the deceased partner, or joint contractor, in the 
 absence of the surviving partner or joint contractor. The 
 deposition of a party shall not be used in his own behalf, un- 
 less the legal notice required in the cases where depositions are 
 to be taken shall also specify that the deposition to be taken 
 is that of the party; Provided, That if the deposition of a 
 party be taken in any pending suit, and such party shall die 
 before the trial thereof, it shall be lawful for the opposite 
 party to testify as to all matters contained in said deposi- 
 tion." i 
 
 1 Ihid. § 320. 
 
CHAPTER IX. 
 
 STATUTOEY COMPETENCY OE DEFENDANTS IN CRIMINAL 
 
 CASES.l 
 
 § 146. In General ; and herein of the Necessity of a Statute. 
 
 § 147. Cliaracter of the Enabling Acts. 
 
 § 148. Extent of the Eight to testify. 
 
 § 149. Right to show Intent. 
 
 § 150. Effect of Omission to testify ; Comments by Counsel. 
 
 § 151. Effect of becoming a Witness ; Legitimate Comments. 
 
 § 152. His Testimony Admissible against him on a New Trial. 
 
 § 153. Statement of Accused. 
 
 § 146. In General ; and herein of the Necessity of a Stat- 
 ute. — In a former chapter we discussed the common-law 
 rules as to the competency of accused persons as witnesses,^ 
 and found that according to those rules, a sole defendant in 
 a criminal case could not testify at all, but that one of two or 
 more jointly charged, could, under certain circumstances, 
 testify either against or on behalf of the others.^ 
 
 But the tendency of legislation and adjudication, ever since 
 the reform movement began, has been in the direction of the 
 removal of the barriers of incompetency, and the ancient 
 theory of closing the mouth of the witness, lest he falsifj'', 
 has given way to the modern one of encouraging free expres- 
 sion, that truth and justice might not be stifled by technical- 
 ities. The rule in civil actions of permitting the parties to 
 testify has, in very many of the states and territories, and 
 very recently in England, been extended to criminal cases, 
 
 ^ Eor a compilation of the statutes (Ky.) 41; Christian «. Commonwealth, 
 on this subject, the reader is referred 13 Id. 264; Commonwealth v. Brown, 
 to the note at the end of this chapter, 1.S0 Mass. 279 ; Lisle v. Common- 
 page 257. wealth, 6 Ky. L. Eep. 229 ; State v. 
 2 Supra, § § 42, 43. Drake, 4 West Coast Eep. 574; State 
 " For further decisions as to the c. Barrow, 76 Me. 401 ; People v. Van 
 competency of one defendant as a wit- Alstine, 6 Crim. L. Mag. 715 ; Oliver 
 ness for or against one jointly charged v. Commonwealth, 77 Va. 590; Hen- 
 with the same offence, see State v. derson v. State, 70 Ala. 23 ; Moore v. 
 Gigher, 23 Iowa, 318; State v. Nash, State, 15 Tex. App. 1; State v. Hen- 
 10 Id. 81 ; State v. Stewart, 51 Id. 312. derson, 47 Ind 127. 
 Chandler v. Commonwealth, 1 Busli 
 
248 
 
 COMPETENCY. 
 
 [chap. IX. 
 
 and not only the injured complainant, but the accused defend- 
 ant likewise, has had the door of the witness-box opened to 
 him. 
 
 But it is only by virtue of the several enabling acts that 
 defendants in criminal proceedings are permitted to testif};- 
 in their own behalf. The courts have imiformly maintained 
 the doctrine that the statutes removing the incompetency of 
 parties and others because of their interest in the event have 
 no application to criminal cases.^ The relaxation of the 
 common-law rule as to parties had no application to prosecu- 
 tions for crime.2 
 
 ^ In Deloohery v. State, 27 Ind.521, 
 the court, per Elliott, C. J. say : — 
 "A party to a suit was not a com- 
 petent witness therein for himself at 
 common law. And as the state has 
 only removed the disability in civil 
 causes and proceedings, and not in 
 criminal ones, the latter are still gov- 
 erned by the common-law rule." And 
 previously the same court, in Hoag- 
 land V. State, 17 Ind. 488, held that 
 although in civil causes and proceed- 
 ings, no person should be disqualified 
 as a witness because he is a party, or 
 interested in the event ; and parties 
 may testify on their own behalf, or 
 compel the adverse party to testify; 
 and although the criminal practice act 
 contained the following provision ; 
 " The following persons are competent 
 witnesses : First. All persons who are 
 competent to testify in civil actions," 
 defendants in criminal cases were not 
 competent to testify, inasmuch as at 
 the time of the enactment of the stat- 
 ute regulating the competency of wit- 
 nesses in criminal cases, the parties to 
 civil actions remained incompetent as 
 at common law, and, since the amend- 
 ment abrogating the rule was expressly 
 directed to civil causes or proceedings, 
 the provision of the criminal practice 
 act intended to adopt the law of com- 
 petency in civil actions, as it then stood, 
 not as it might thereafter become, and 
 tlio ruling of the court below reject- 
 ing the defendant as a witness was 
 sustained and the judgment of convic- 
 tion affirmed. So, also, in Michigan, 
 
 under the statute permitting a defend- 
 ant " to make a statement," it was 
 held in People v. Thomas, 9 Mich. .314, 
 that he should not be permitted to 
 testlfij. Under the Bankrupt Law of 
 18fj7, as amended in 1874, whereby 
 the alleged bankrupt became a com- 
 petent witness, it was held in United 
 States V. Black, 12 Bankr. Eeg. 340, 
 in the U. S. Circuit Court, Massachu- 
 setts, that he was not a competent 
 witness in a criminal proceeding 
 against him for secreting assets and 
 fraudulently omitting them from the 
 schedules. The state statute does not 
 extend to United States courts held 
 within the boundary of the state. 
 United States v. Hawthorne, 1 Dill. 
 (U. S.) 422. In Pennsylvania, under 
 the statute (prior to amendment of 
 1877) granting the privilege only to 
 persons charged with offences " not 
 above the grade of misdemeanor," it 
 was held in Stevick v. Commonwealth, 
 78 Pa. St. 460, that a defendant was 
 incompetent to testify, if there be a 
 count in the indictment for felony 
 joined with that of misdemeanor. S. 
 P., Hunter u. Commonwealth, 79 Pa. 
 St. 503. 
 
 2 Patterson v. People, 46 Barb. 
 (N. Y.) 625; Williams c-. People, 33 
 N. Y. 688. S. P., State o. Bixby, 39 
 Iowa, 465 ; State v. Barrington, 47 
 Iowa, 518; State v. Connell, 38 N. H. 
 81; State v. Flanders, Id. 324; Com- 
 monwealth u. Lenox, 12 Phil. (Pa.) 
 601. 
 
§ 148.] DEFENDANTS IN CRIMINAL CASES. 249 
 
 § 147. Character of the Enabling Acts. — These enactments 
 are permissive merely. Some few of tliem only permit the 
 accused to make a " statement " to the jury, sworn, or un- 
 sworn,! if he chooses to do so ; but the great majority of 
 them provide that the accused may be a competent witness. 
 Nowhere do we find it in terms stated that he shall be a 
 compulsory one, and as statutes in derogation of the common 
 law are construed strictly ;2 and furthermore, as the fifth 
 amendment to the constitution of the United States estab- 
 lishes as the fundamental law that " no person . . . shall be 
 compelled in any criminal case to be a witness against him- 
 self," it may safely be asserted that nowhere can the prosecu- 
 tion force the accused to testify against his will.^ The sole 
 purpose of permitting him to testify on his own behalf is to 
 enable him to present his own defence.* The constitutionality 
 of these acts has rarely been questioned, and in one well- 
 considered case, has been distinctly asserted.^ 
 
 § 148. Extent of the Right to testify. — The effect of these 
 enabling acts is to remove all the disabilities of the defend- 
 ant, and to permit him to present such a statement as he can, 
 in exoneration of the crime with the commission of which he 
 stands charged.^ The examination is governed by the same 
 rules as are applied to other witnesses. The fact that the 
 proof is strong against him, and his story an improbable one, 
 affords no ground for rejecting his testimony.'^ Therefore 
 where the court, upon the cross-examination of the accused, 
 having developed the fact that he had previously served a 
 term in the state prison, instructed the jury wholly to dis- 
 regard his testimony, this was held erroneous, since while 
 the court were to decide as to its admissibility, the jury had 
 the right to determine the degree of credit to which it was 
 entitled.^ 
 
 1 Infra, § 153. ^ Delamater v. People, 5 Lans. 
 
 2 <■ -When a statute alters the com- (N. Y.) 332. 
 
 mon law, the meaning shall not be ' State v. Kelly (Iowa), 11 N. W. 
 
 strained beyond the words, except in Hep. 635 ; Marx v. People, 63 Barb. 
 
 cases of public utility when the end (N. Y.) 618; Bralich v. People, 65 Id. 
 
 of the act appears to be larger than 48. 
 
 the enacting words." Potter's Dwar- ^ Newman v. People, 63 Barb. (N.Y.) 
 
 ris on Stat. 186. 630. As to the competency of a de- 
 
 ' State V. Cohn, 9 Nev. 179. fendant in bastardy proceedings, see 
 
 4 People V. Quick, 51 Mich. 547. People v. Duell, 6 Abb. (N. Y.) Pr. 
 
 5 State V. Bartlett, 55 Me. 200. 285; Carter v. Krise, 9 Ohio St. 402. 
 
250 COMPETENCY. [CHAP. IX. 
 
 His counsel should be allowed to interrogate him as in case 
 of other witnesses, the prosecutor objecting to improper 
 questions.! 
 
 In discussing the right of a female defendant to testify in 
 her own behalf, the court of appeals of New York say : " For 
 this purpose she left her position as a defendant, and, while 
 upon the stand, was subject to the same rules, and called 
 upon to submit to the same tests, which could by law be 
 applied to other witnesses." ^ 
 
 In Indiana, where the fact that a defendant on trial for 
 murder, called at the house where the alleged homicide trans- 
 pired, two days after its occurrence, and there held a whis- 
 pered conversation with the deceased's widow, who was 
 jointly indicted with him for the homicide, was given in 
 evidence, it was held that the defendant, when on the stand, 
 might testify as to what was said, the court saying : " It is 
 exceedingly unjust to an accused party to admit his act in 
 evidence, and to allow it to be insisted that the act is one of 
 criminality or evidence of criminality, and at the same time 
 to exclude what was said by the accused, at the time of, and 
 connected with the act, in explanation of its character. The 
 naked act may import, or be construed as importing crimi- 
 nality, when, taken in connection with what was said, it maj^ 
 be innocent or even commendable."^ And in another case, 
 where evidence was introduced tending to show that the 
 defendant had attempted to suborn witnesses, it was held 
 that he might testify that he had in no way communicated 
 with them.* 
 
 The extent to which he shall testify, is for the defendant 
 himself to determine. He 'can so limit his testimonj^ as to 
 avoid danger of self-crimination, either on the direct or cross- 
 examination, for that, as a rule, can go no further than is 
 necessary to discover the whole truth upon the matters in- 
 troduced upon the direct. As tersely stated by Judge Cooley, 
 " if he does so testify he is at liberty to stop at any point he 
 chooses, and it must be left to the jury to give a statement 
 which he declines to make a full one, such weight as, under 
 the circumstances, they think it entitled to ; otherwise the 
 
 1 Clark V. State, 50 Ind. 514. ' Morrow v. State, 48 Ind. 432. 
 
 2 Brandon v. People, 42 N. Y. 265, " Donolme v. People, 50 N. Y. 208. 
 208. 
 
§ 149.] DEFENDANTS IN CEIMINAL CASES. 251 
 
 statute must have set aside and overruled the constitutional 
 maxim ■which protects an accused party against being com- 
 pelled to testify against himself, and the statutory privilege 
 becomes a snare and a danger."^ 
 
 § 149. Right to show Intent. — One of the greatest bene- 
 fits derived by the accused from the enabling statutes, is that 
 an opportunity is afforded him to explain his acts and vi^ords 
 as they have been shown by the testimony for the prosecu- 
 tion. Oftentimes the most innocent, inadvertently, or per- 
 haps in trustful faith, by their conduct, place themselves in 
 positions v^rhere suspicion strongly attaches to them ; numer- 
 ous connecting circumstances environ them, and acts and 
 vi^ords, in fact the most innocuous, are introduced as links in 
 the chain, which, drawn about the unfortunate with anaconda- 
 like tightness, wou.ld doubtless crush liim; but the strength 
 of a chain is that of its weakest link : shatter but a single one, 
 and its entire power is gone. Therefore if the accused can 
 but show that the questioned acts and words are in reality 
 of a character entirely different, and were employed for a 
 purpose entirely different from that which apparently ac- 
 tuated them, the chain of circumstantial evidence breaks. 
 Who can show this better than he whose words and acts are 
 in question ? Who other than he can testify as to the men- 
 tal operation of intent of which these are manifestations ? ^ 
 
 1 Const. Lim. (4 Ed.) 389. See cept by inference from their acts and 
 infra, Chaps. XXI., XXII. sayings, and all experience shows that 
 
 2 Article by E. V, W. Du Bois, they may frequently, if not at all 
 Esq., in 4 Crim. Law Mag. p. 323. In times, prove very imperfect guides. 
 People V. Farrell, 31 Cal. 576, the The object of the recent changes, as 
 court say: "The rule that the intent we conceive, was not merely to enable 
 must be inferred from the acts and parties to disclose facts wholly within 
 words of the party, had its foundation their own knowledge, but to do in ad- 
 in necessity created by the rule which dition what theretofore had been 
 excluded parties in interest from the impossible, — explain their acts and 
 witness stand. That necessity is now the motives with which they were 
 removed by the abrogation of the performed, and to explain if need 
 rule which created it, and the legal be, what they meant or intended to 
 tenet that actions must speak for be understood as meaning, by what 
 themselves, and words furnish their they may have said in regard to any 
 own interpretation, is much modified, material fact. It is presumed that 
 if not wholly abrogated, by the recent there are but few members of the legal 
 innovation upon the common law, by profession who have not, at one time 
 which parties are allowed to testify in or another, felt the harshness, if not 
 their own behalf. Before that time, the injustice, of the rule which ex- 
 there was no way of ascertaining the eluded parties from the witness stand, 
 motives and intentions of parties, ex- and closed the door to explanations 
 
252 COMPETENCY. [CHAP. IX. 
 
 Where tlie defence against a charge of homicide is that it 
 was justifiable, the defendant when testifying is entitled to 
 state to the jury whether at the moment of the killing he 
 did, or did not, really believe he was in danger of losing his 
 life, or of receiving great bodily harm, for the purpose of 
 showing the condition of his mind at the time, and for the 
 purpose of establishing one of the necessary conditions of 
 justification; it being left to the jury to weigh and consider 
 the question whether such testimony is true or false.^ 
 
 § 150. Effect of Omission to testify ; Comments by 
 Counsel. — In view of the constitutional provision that "no 
 person shall be compelled in any criminal case to be a wit- 
 ness against himself," and realizing that the statutes are 
 designed to confer a privilege, not to im.pose a burden ; that 
 it is the indefeasible constitutional right of the accused that 
 the prosecution must, unaided by him, make out its case 
 against him beyond all reasonable doubt; that his position is 
 defensive and he cannot be turned against himself, the effect 
 of his omission to make himself a witness is easily ascertained ; 
 for independent of the provisions of the enabling acts that 
 no such omission shall operate prejudicially to him, the higher 
 law of the constitution affords him perfect protection.^ 
 
 which otherwise could have been made, which is claimed to prove criminal 
 and would have given a very different intent, Kerrains v. People, 60 N. Y. 
 color to the transaction. Actions and 221 ; so in case of a trial for conspir- 
 words are liable to misconstruction, acy to obtain a promissory note by 
 as all human experience proves, false and fraudulent representations, 
 Actions apparently suspicious become Babcock u. People, 15 Hun (N. Y.) 
 innocent when the motive with which 347. Apparently, Bolen u. State, 26 
 they were performed is understood. Ohio St. 371, runs counter to this 
 Words are often of a very different doctrine ; but careful reading, with ex- 
 import when spoken in earnest and amination of the citations, will show 
 when spoken in jest; when imperfectly that the question was not properly 
 understood and when fully explained, presented to the appellate court, since 
 If, under the new rule, parties are the record did not state the nature of 
 to be kept in harness and not allowed the expected answer, or affirmatively 
 to explain their actions and words, show that the exclusion of the evidence 
 when they admit of explanation, and was prejudicial to the prisoner, as the 
 when explanation is needed in order settled rule of practice in Ohio re- 
 to exhibit the whole truth, but half quires. 
 
 the evil that was felt under the old ^ 4 Grim. Law Mag. 348. This pre- 
 mie has been removed." cisc point was presented in People v. 
 1 State V. Harrington, 12 Nev. 125. Tyler, 86 Cal. 522, and as to it. Sawyer 
 Defendant on trial for assault with a C. J. says: — "At the trial, by his 
 deadly weapon with intent to kill, plea of not guilty, the party charged 
 should be permitted to testify con- denies the charge against him. This 
 cerning his intent in doing any act is itself a positive act of denial, and 
 
150.] 
 
 defejJidants est ceiminal cases. 
 
 253 
 
 Allusions by the prosecuting officer, in his summing up, to 
 the fact that the accused had omitted to avail himself of the 
 opportunity to testify, and any, even the slightest attempt to 
 draw therefrom an inference of guilt, constitute reversible 
 error, if objected to and the court declines to interfere.^ In 
 
 puts upon the people the burden of 
 affirmatively" proving the offence al- 
 leged against him. "When he has 
 once raised this issue by his plea of 
 not guilty, the law says he ° shall 
 thenceforth be deemed innocent till he 
 is proved to be guilty, and both the 
 common law and the statute give him 
 the benefit of any reasonable doubt 
 arising on the evidence. Now, if at 
 the trial, when, for all purposes of the 
 trial, the burden is on the people to 
 prove the offence charged, by affirma- 
 tive evidence, and the defendant is 
 entitled to rest upon his plea of not 
 guilty, an inference of guilt could 
 legally be drawn from his declining 
 to go upon the stand as a witness and 
 again deny the charge against him in 
 the form of testimony, he would prac- 
 tically, if not theoretically, by his act 
 of declining to exercise his privilege, 
 furnish evidence of his guilt that might 
 turn the scale and convict him. In 
 this mode he would indirectly and 
 practically be deprived of the option 
 which the law gives him, and of the bene- 
 fit of the provision of the law and the 
 constitution, which say, in substance, 
 that he shall not be compelled to 
 criminate himself. If the inference in 
 question could be legally drawn, the very 
 act of exercising his option as to going 
 upon the stand as a witness, which he is 
 necessarily compelled by the adoption of 
 the statute to exercise one way or the 
 other, would be, at least to the extent of 
 the weight given by the jury to the infer- 
 ence arising from his declining to testify, 
 a crimination of himself 
 
 " Whatever the ordinary rule of evi- 
 dence with reference to inferences to 
 be drawn from the failure of parties 
 to produce testimony that must be in 
 their power to give, we are satisfied 
 tliat the defendent, with respect to ex- 
 ercising his privilege under the provisions 
 of the act in question, is entitled to rest 
 
 in silence and security upon his plea 
 of not guilty, and that no inference of 
 guilt can be properly drawn against 
 him from his declining to avail him- 
 self of the privilege conferred upon 
 him to testify on his own behalf ; that 
 to permit such an inference would be 
 to violate the principles and the spirit 
 of the constitution and the statute, 
 and defeat rather than promote the 
 object designed to be accomplished by 
 the innovation in question." S. P., 
 Price V. Commonwealth, 77 Va. 393. 
 
 1 Price V. Commonwealth, supra. 
 Allusions and arguments of this sort 
 were made by the district attorney in 
 the case last cited, the court overrul- 
 ing defendant's objection, and refus- 
 ing the following request to charge : 
 "The jury should not draw any infer- 
 ence to the prejudice of the defendant 
 from the fact that he did not offer 
 himself as a witness in his own behalf. 
 It is optional with a, defendant to do 
 so or not, and the law does not intend 
 that the jury should put any construc- 
 tion upon his silence unfavorable to 
 him." Por these errors the conviction 
 was reversed on appeal, the court say- 
 ing : " We are of opinion, therefore, 
 that the court erred in permitting the 
 district attorney to pursue the line of 
 argument to which objection and ex- 
 ception were taken, and intimating its 
 approbation of the ground taken, and, 
 especially after what had transpired, 
 in refusing the instruction asked on 
 behalf of the defendant for the pur- 
 pose of correcting any erroneous view 
 that might have Leen impressed on 
 the minds of the jury. We think 
 such instruction proper in all cases 
 where the defendant desires it." This 
 ease was followed in People v. Brown, 
 53 Cal. 66 ; and the same view of this 
 question was taken by the Supreme 
 Court of Vermont in State v. Cameron, 
 40 Vt. 555. 
 
COMPETENCY. 
 
 [chap. IX. 
 
 one respectable decision it is lield that the error is not cured 
 even though the presiding judge admonish the counsel and 
 instruct the jury to give no heed to his objectionable remarks.^ 
 In a leading New York case, where the court in charging 
 the jury alluded to the omission of the accused to testify, but 
 subsequently, upon his attention being called to it, stated to 
 the jury that there was no law requiring the prisoner to be 
 sworn, and that no inference should be drawn against him 
 because he did not take the stand, it was held that the error 
 was thereby cured.^ But, in a later case, it is said to be the 
 duty of the court to jprevcnt the prosecuting counsel com- 
 menting upon this matter.^ 
 
 1 Long V. State, 56 Ind. 182. 
 
 2 Ruloff V. People, 45 N. Y. 213. 
 
 3 Crandall v. People, 2 Lans. (N. Y.) 
 309. " This court has decided that 
 such silence cannot he taken into con- 
 sideration by the jury in determining 
 whether a defendant is oris not guilty, 
 and that an equivocal instruction upon 
 this matter entitles the defendant to a 
 new trial. Chief Justice Chapman 
 saying ; ' It is important that courts 
 should carefully guard his constitu- 
 tionalright.' (Commonwealths. Har- 
 low, 110 Mass. 411.) And as there is 
 danger that the jury, knowing that 
 the law now permits a defendant to 
 testify, may draw inferences against 
 him from his omission so to do, his 
 counsel may properly, in addressing 
 the jury, insist and enlarge upon his 
 constitutional and legal right in this 
 respect. . . . The course of the clos- 
 ing argument for the prosecution 
 tended to persuade the jury that the 
 omission of the defendants to testify 
 implied an admission or a conscious- 
 ness of the crime charged; and the 
 presiding judge, in permitting* such a 
 course of argument against the objec- 
 tion of the defendants, and in ruling 
 that the prosecuting attorney had a 
 right to comment on the reasons which 
 the defendants' counsel gave for their 
 not going upon the stand and testify- 
 ing in their behalf, and also to give 
 the reasons which the government 
 contended really existed, for their not 
 testifying, committed an error which 
 
 was manifestly prejudicial to the 
 defendants, and which obliges this 
 court to set aside the verdict and order 
 a new trial." Per Gray, C. J., in 
 Commonwealth v. Scott, 123 Mass. 239. 
 
 In a prosecution for keeping in- 
 toxicating liquors with intent to sell 
 them, the only evidence to connect the 
 accused with the offence was the fact 
 that he was seen in a room adjoining 
 the bar-room in which the liquors 
 were. It was held that he was not 
 called upon to explain his presence 
 there ; that the benefit of the provi- 
 sion that "his neglect or refusal to 
 testify shall not create any presump- 
 tion against him," was to be preserved 
 in spirit as well as in letter ; and that, 
 therefore, the reading by the court to 
 the jury of a charge given in another 
 case upon a different state of facts, as 
 to the inference of guilt that may be 
 drawn from a failure to offer explana- 
 tory evidence, when it was apparent 
 that if it be true, such evidence is 
 within the power of the accused, was 
 erroneous as tending to mislead tlio 
 jury, although qualified by the state- 
 ment that the evidence which it must 
 be apparent he can produce, must be 
 evidence other than his own testimony. 
 Commonwealth v. Jlaloney, 113 Mass. 
 211 
 
 In Maine, it was formerly the rule 
 that the fact that the accused did not 
 testify was a proper one for the con- 
 sideration of the jury in determining 
 his guilt or innocence. State v. Bart- 
 
§ 152.] DEFENDANTS IN CRIMINAL CASES. 255 
 
 § 151. Effect, of becoming a Witness; Legitimate Com- 
 ments. — While the accused cannot be criticised because he 
 has failed to take the stand, yet, if he has done so, he has 
 rendered himself subject to adverse comment the same as 
 any other witness. 
 
 Where, in the exercise of his rights, he has testified but par- 
 tially, and so carefully guarded his speech that no permissible 
 cross-examination will elicit the facts of which it is but fair 
 to suppose he is possessed, then it is eminently proper for the 
 prosecuting counsel to review his testimony with such a 
 running commentary upon it as may be necessary to sustain 
 any reasonable hypothesis formed from the other evidence. 
 Again, his endeavoring to retire within the bomb-proof of 
 privilege to avoid the hot fire of cross-examination, together 
 with his general appearance and conduct while on the stand, 
 both as to matter and manner, are legitimate subjects for 
 critical comment within the usual boundaries.^ 
 
 When he becomes a witness he is made competent for all 
 purposes in the case, and if, by his own testimony, he can, if 
 innocent, explain and rebut, a fact tending to show his guilt, 
 and he fails so to do, the same presumption arises from his 
 failure as would arise from a failure to give the explanation 
 by another witness, if in his power to give it.^ 
 
 § 152. His Testimony Admissible against him on a Ne'w 
 Trial. — The rule in civil actions is, that where a party has 
 been examined as a witness on his own behalf, and thereafter 
 a new trial is had, and he does not take the stand upon such 
 second trial, he may usually be required to do so upon the 
 demand of his opponent, and, if material and proper, inter- 
 rogated concerning his testimony given at the former trial, 
 which may thus be used against him. Iii criminal proceed- 
 ings an analogous course is allowable. Of course the defend- 
 ant cannot, either upon the first or second trial, be compelled 
 to testify ; but if on the second trial he omits to exercise his 
 
 lett, 55 Me. 200 ; even if the defend- ^ The testimony of the prisoner who 
 
 ant be a woman, 59 Me. 298 ; and the has taken the stand in his own behalf 
 
 judge may so instruct them, State v. is a fair subject of criticism, and eoun- 
 
 Lawrence, 57 Me. 574. But by § 1 of sel for the people is at liberty to com- 
 
 ch. 92, Laws of 1879, this was changed, ment upon the failure of tlje prisoner 
 
 and the rules above stated are be- to contradict a witness for the people, 
 
 lieved to be general throughout the Solander v. People, 2 Col. 48. 
 
 Union. See also, 3 Crim. Law Mag. 2 glover v. People, 56 N. Y. 315. 
 161, 162. 
 
25G 
 
 COMPETENCY. 
 
 [chap. IX. 
 
 privilege, liis testimony previously given is admissible in 
 evidence against liim.^ 
 
 § 153. statement of Accused. — In several of the States 2 
 legislation has not yet progressed sufficiently to permit the 
 accused to testify as a witness in the cause; but he may 
 make a statement, as it is called.^ 
 
 The purpose of the statutes is to give every person on trial 
 an opportunity to make full explanation to the jury, in 
 respect to the circumstances given in evidence, which are 
 supposed to have a bearing against him.* The defendant 
 has a right to make his statement, and to that statement the 
 jury may give such weight as in their judgment it may be 
 
 1 In State v. Eddings, 71 Mo. 545, 
 the court, per Henry, J., say ; " On a 
 former trial the defendant voluntarily 
 offered himself as a witness, and at 
 the trial now under review, Mr. Phil- 
 lips, a juror on the former occasion, 
 was called by the state to testify what 
 the testimony of defendant then was. 
 ... It is contended that his statement 
 so made can only be received in evi- 
 dence as a confession, and to be ad- 
 missible as a confession, it must have 
 been voluntary. He had his option to 
 testify or not, and when he voluntarily 
 became a witness, he volunteered to 
 answer all proper questions pro- 
 pounded on cross-examination. He 
 became as any other witness. He 
 took the risk of answering any ques- 
 tions on cross-examination for the ad- 
 vantage of testifying in chief in his 
 own behalf. It cannot, with any pro- 
 priety, be said that his answers to 
 questions asked him on cross-exami- 
 nation were involuntary. He chose to 
 put himself in a position which invited 
 them. He offered himself as a witness 
 to tell the whole truth, not only what 
 made for him, but what would be 
 against him ; not only to answer ques- 
 tions propounded by his counsel, but 
 those propounded by the state. He 
 was not to be treated as a witness as 
 to his testimony-in-chief, and as a 
 party to his testimony on cross-exami- 
 nation." To the same effect. Com- 
 monwealth V. Reynolds, 122 Mass. 
 454. 
 
 The decision in State v. Witham, 72 
 
 Me. 531, is to the effect that his cross- 
 examination, legally obtained in one 
 criminal prosecution, is admissible as 
 evidence against him in another, if 
 pertinent to the issue. 
 
 " An accused person, with his con- 
 sent, may become a witness either for 
 or against himself at the preliminary 
 examination before the magistrate ; 
 and if he voluntarily becomes a wit- 
 ness under such circumstances as to 
 render it clear that his testimony was 
 purely voluntary, and free from re- 
 straint or undue influence, there is no 
 reason why it should not be given in 
 evidence against him on his subse- 
 quent trial for the offence. If his 
 voluntary, unsworn statement may be 
 be proved against him as a confession, 
 his voluntary statement under oath, 
 given in a proceeding in which he 
 elects and is authorized to testify, 
 ought to stand upon at least as favor- 
 able a footing." People v. Kelley, 47 
 Cal. 125 ; followed, State v. Glass, 50 
 Wis. 218. 
 
 2 Alabama, Florida, and Georgia. 
 Formerly also in Michigan (People v. 
 Thomas, 9 Mich. 314) and until quite 
 recently in Great Britain. 
 
 ^ In Florida, this statement is under 
 oath ; in the other States it is not. In 
 Wyoming Territory, he may, in lieu 
 of testifying, make an unsworn state- 
 ment. See the several statutes col- 
 lated in the note at the close of this 
 chapter. 
 
 1 Aunis V. People, 13 Mich. 511. 
 
§ 153.] DEFENDANTS IN CRIMINAL CASES. 257 
 
 entitled to, dependent ordinarily upon its consistency, its 
 naturalness and its inherent probabilities, and a charge to that 
 effect is not erroneous.^ Generally, the appropriate charge 
 on the effect of the prisoner's statement is in the language of 
 the statute.^ It is error to charge that the statement in 
 general " and in this case " is not sufficient, as a general 
 rule, to overcome the testimony of a sworn credible witness. 
 The jury should be left free to give to the statement in the 
 case on trial such credence as they may think proper.^ Also, 
 error to charge that the jury " cannot take such statement 
 into consideration as evidence." * It is objectionable in the 
 court to discredit the prisoner's statement by comparing it 
 with the evidence and showing discrepancies.^ Or to limit 
 or restrict the jury in their consideration of it.^ 
 
 The prisoner, while on the stand, is entitled to the assist- 
 ance of counsel in directing his attention to any branch 
 of the case, that he may make explanations concerning it if 
 he desires.''' But the prisoner is not under examination, and 
 his counsel has no right to ask him questions. Doubtless 
 the court might, at the prisoner's request, permit questions 
 to be put to him as a matter of discretion.^ 
 
 In a Florida case the court refused to allow the statement 
 of the accused to be made, unless he was put upon the stand 
 as a witness, subject to cross-examination. This was held to 
 be erroneous, as " the making of such a statement under oath 
 does not constitute the accused a witness, nor does it subject 
 him to the rules applicable to witnesses, making him liable 
 to cross-examination. It is simply a presentation, verbally, 
 in his own language and manner, of the matters pretaining to 
 his defence, of such facts and circumstances surrounding the 
 case as will go to excuse the offence and negative the idea of 
 willful and corrupt intent." ^ Btit the state may introduce 
 evidence to contradict any facts stated by the prisoner in his 
 statement before the jury.^" 
 
 1 Eeich o. State, 6.3 Ga. 616. To ^ Tucker v. State, 57 Ga. 503. 
 same effect, Maher u. People, 10 ^ Pease u. State, 63 Ga. 631. 
 Mich. 212 ; People v. Arnold, 40 Mich. ' Annis v. People, 13 Mich. 511. 
 710. 8 Brown v. State, 58 Ga. 212. But 
 
 2 Brown v. State, 60 Ga. 210. see Chappell v. State, 71 Ala. 322. 
 8 Day V. State, 63 Ga. 667; Durant » Miller v. State, 15 Fla. 576. 
 
 u. People, 13 Mich. 351. '"Holsenbake v. State, 45 Ga. 43. 
 
 * Barber v. .State, 18 Fla. 675. S. P., Burden n. People, 26 Mich. 162. 
 Contra Chappell v. State, 71 Ala. 322. 
 
258 
 
 COMPETENCY. 
 
 [chap. IX. 
 
 In Bird v. State, ^ the court charged the jury that " they 
 might take into consideration the fact that defendant failed 
 to make a statement, and give to that such weight as they 
 might see fit with other evidence ; and if, upon the whole, 
 they should believe him guilty, they should so find : other- 
 wise not." This was held to be erroneous, and a new trial was 
 granted, the court saying : " We do not think that the statute 
 giving this right to the defendant intended that it should be 
 counted against him, if he did not avail himself of it." 
 
 The prisoner does not cease to be a defendant by becoming 
 a witness, nor forfeit rights by accepting a privilege, " while 
 his constitutional right of declining to answer questions 
 cannot be removed, yet a refusal by a party to answer any 
 fair question, not going outside of what he has offered to 
 explain, would have its proper weight with the jury." ^ 
 
 1 50 Ga, 585. 
 
 2 Campbell, J., in people v. Thomas, 
 supra. 
 
 Note. — The provisions, in the sev- 
 eral j urisdictions, enabling the accused 
 to testify in his own behalf (or make a 
 " statement " as the law stands in a, 
 few of them), are as follows : — • 
 
 Federal Courts, Including the 
 Territorial Courts and the District 
 of Columbia, — General Laws Forty- 
 Fifth Congress, Second Session, ch. 
 .37 (Supplement to Eev. Stat. vol. 1, 
 p. 312) : 
 
 " Be it enacted, &c.. That in the trial 
 of all indictments, informations, com- 
 plaints or other proceedings against 
 persons charged with the commission 
 of crimes, offences and misdemeanors, 
 in the United States courts, territorial 
 courts, and courts-martial, and courts 
 of inquiry, in any state or territory, 
 including the District of Columbia, 
 the person so charged shall, at his 
 own request, but not otherwise, be a 
 competent witness ; and his failure to 
 make such request shall not create 
 any presumption against him." 
 
 Alabama. — House Bill 02, Session 
 of 1882; "An act to permit defen- 
 dants to make statements in their own 
 behalf in all trials of indictments, 
 complaints, or other criminal proceed- 
 ings. 
 
 " Sec. 1. Be it enacted by the Gen- 
 eral Assembly of Alabama, That on 
 the trial of all indictments, complaints 
 or other criminal proceedings, it shall 
 be competent for the defendants to 
 make a statement as to the facts in 
 their own behalf, not under oath. 
 
 " Sec. 2. Be it further enacted. 
 That shall any defendant fail to make 
 a statement, as provided for in the 
 previous section, it shall not militate 
 or be made the subject of comment 
 against him." Approved December 
 2, 1882. 
 
 Arizona Territory. — Comp. Laws, 
 1877, p. 101, § 408 : "An act entitled 
 ■ An act for the protection of the rights 
 of persons prosecuted for crime,' ap- 
 proved January 27, 1881. 
 
 " All persons charged by indictment 
 or otherwise with violation of the 
 criminal code of this territory shall 
 be competent to testify upon their 
 trial for such cftences, if they choose 
 so to do, providing that in all cases 
 wherein the defendant declines to tes- 
 tify the court shall instruct the jury 
 that the fact of the defendant's de- 
 clining to testify must not be con- 
 strued by them as raising any pre- 
 sumption against him." 
 
 California. — Penal Code, § 1323, 
 (Desty's edition), 1881 : " A defendant 
 in a criminal action or proceeding 
 
153.J 
 
 DEFENDANTS IN CRIMINAL CASES. 
 
 259 
 
 cannot be compelled to be a witness 
 against himself, but if he offer himself 
 as a witness, he may be cross-exam- 
 ined by the comisel for the people as 
 to all matters about which he was 
 examined in chief. His neglect or 
 refusal to be a witness cannot, in any 
 manner, prejudice him, nor be used 
 against him on the trial or proceed- 
 ing." 
 
 Colorado. — Amendment of act 
 approved February 5th, 1872 (see 
 Laws, 1872, p. 95, and General Laws, 
 1877, p. 341), by act approved Feb- 
 ruary 8th, 1881. Session Laws, 1881, 
 p. 114: "Hereafter, in all criminal 
 cases tried in any court of this state, 
 the accused, if he so desire, shall be 
 sworn as a witness in the case, and 
 the jury shall give his testimony such 
 weight as they think it deserves ; but 
 in no case shall a neglect or refusal 
 of the accused to testify be taken or 
 considered any evidence of his guilt 
 or innocence." 
 
 Connecticut. — Public Acts, 1879, 
 ch. 69, p. 421 : " Any person on trial 
 for crime shall be a competent witness, 
 and at his or her option may testify 
 or refuse to testify upon such trial, 
 and if such person lias a husband or 
 wife, he or she shall be a competent 
 witness, but may elect or refuse to 
 testify for or against the accused, 
 except that a wife when she has 
 received violence from her husband, 
 may, upon his trial therefor, be com- 
 pelled to testify in the same manner 
 as any other witness ; the neglect or 
 refusal of an accused party to testify 
 shall not be commented upon to the 
 court or jury." 
 
 Florida. — McClellan's Digest of 
 Laws, 1881, ch. 101, § 29, p. 519 ; " In 
 all criminal prosecutions, the party 
 accused shall have the right of mak- 
 ing a statement to the jury, under 
 oath, of the matter of his or her 
 defence." 
 
 Georgia. — Code, 1882, § 46.37 : " In 
 all criminal trials in this State, the 
 prisoner shall have the right to make 
 to the court and jury such statement 
 in the case as he or she may deem 
 [proper] in his or her defence, said 
 statement not to be under oath, and 
 
 to have such force only as the jury 
 may think right to give it [and the 
 jury may believe such statement in 
 preference to the sworn testimony in 
 the case] ; Provided, the prisoner shall 
 not be compelled to answer any ques- 
 tions on cross-examination, should he 
 or she think proper to decline to 
 answer such questions." 
 
 Idaho Territory. — Eev. Laws, 
 "Crimes and Punishments," ch. 3, 
 § 12, p. 321 : " The party or parties 
 injured shall, in all cases, be com- 
 petent witnesses, and the party ac- 
 cused and prosecuted in any criminal 
 proceeding, or for any crime, shall be 
 a competent witness or witnesses on 
 his or her own behalf, but no criminal 
 shall be compelled to testify against 
 him or herself in any case. The credi- 
 bility of all such witnesses shall be 
 left to the jury, as in other cases." 
 
 Illinois. — Revised Statutes of Illi- 
 nois (Cothran's annotated edition), 
 1880, ch. 38, Div. 13, § 6; ("Criminal 
 Code," § 426, p. 530) : " No person 
 shall be disqualified as a witness in 
 any criminal case or proceeding by 
 reason of his interest in the event of 
 the same as a party or otherwise, or 
 by reason of his having been convicted 
 of any crime ; but such interest or con- 
 viction may be shown for the purpose 
 of affecting his credibility ; Provided, 
 however, that a defendant in any crim- 
 inal case or proceeding shall only, at 
 his own request, be deemed a compe- 
 tent witness, and his neglect to testify 
 shall not create any presumption 
 against him, nor shall the court per- 
 mit any reference or comment to be 
 made to or upon such neglect." 
 
 Indiana. — Kev. Stat. 1881, ch. 4, 
 (entitled " Criminal Procedure,") art. 
 15, § 225 ; § 1798 of Rev. Stat. . " The 
 following persons are competent wit- 
 nesses: — 
 
 " First. All persons who are com- 
 'petent to testify in civil actions. 
 
 " Second. The party injured by the 
 offence committed. 
 
 " Third. Accomplices, when they 
 consent to testify. 
 
 " Fourth. The defendant, to testify 
 in his own behalf. But if the defend- 
 ant do not testify, his failure to do so 
 
260 
 
 COMPETESrCT. 
 
 [chap. IX. 
 
 shall not be commented upon or re- 
 ferred to in the argument of the cause, 
 nor commented upon, referred to or in 
 any manner considered by the jury 
 trying the same ; and it shall be the 
 duty of the court, in such case in its 
 charge, to instruct the jury as to their 
 duty under the provisions of this sec- 
 tion." 
 
 Iowa. — Rev. Code (Miller's anno- 
 tated edition), 1880, § 8036 [all after 
 the first sentence was added by § 1 of 
 ch. 168 of the Laws of 1878] : "Every 
 human being of sufficient capacity to 
 understand the obligation of an oath 
 is a competent witness in all cases, 
 both civil and criminal, except as 
 herein otherwise declared. Defend- 
 ants in all criminal proceedings shall 
 be competent witnesses in their own 
 behalf, but cannot be called as wit- 
 nesses by the state, and should a de- 
 fendant elect not to become a witness, 
 that fact shall not have any weight 
 against him on the trial, nor shall the 
 attorney or attorneys for the state 
 during the trial refer to the fact that 
 the defendant did not testify in his 
 own behalf; and should he do so, 
 such attorney or attorneys will be 
 guilty of a misdemeanor, and defend- 
 ant shall, for that cause alone, be 
 entitled to a new trial. 
 
 "Sec. 3637. Facts which have 
 heretofore caused the exclusion of 
 testimony, may still be shown for the 
 purpose of lessening its credibility." 
 The force of § 3637 will be apparent 
 when we consider that prior to the 
 enactment of § 1, ch. 168, Laws of 
 1878 (approved March 26, 1878, 
 amending § 3636 of the code, so as to 
 place it in its present form), defend- 
 ants in criminal proceedings were not 
 competent witnesses in their own be- 
 half. State u. Laffer, 38 Iowa, 422 ; 
 and see note to § 3636 in 2 McClain's 
 Annotated Statutes, 917. 
 
 Kansas. — Comp. Laws (Dassler's 
 edition), 1881, ch. 82, entitled "Pro- 
 cedure, Criminal," Art. 11, § 216, 
 (Grand Number, § 4707) : "No person 
 shall be rendered incompetent to 
 testify in criminal causes by reason 
 of his being the person injured or 
 defrauded, or intended to be injured 
 
 or defrauded, or that would be en- 
 titled to satisfaction for the injury, 
 or is liable to pay the costs of the 
 prosecution, or by reason of his being 
 the person on trial or examination, 
 or by reason of being the husband or 
 wife of the accused ; but any such 
 facts may be shown for the purpose 
 of affecting his or her credibility; 
 Provided, That no person on trial or 
 examination, nor wife or husband of 
 such person, shall be required to tes- 
 tify except as a witness on behalf of 
 the person on trial or examination ; 
 And provided further , That the neglect 
 or refusal of the person on trial to 
 testify, or of a wife to testify in be- 
 half of her husband, shall not raise 
 any presumption of guilt, nor shall 
 that circumstance be referred to by 
 any attorney prosecuting in the case, 
 nor shall the same be considered by 
 the court or jury before whom the 
 trial takes place." 
 
 (4708), § 215 a. " Sec. 2. If the ac- 
 cused shall not avail himself of his right 
 to testify in any case, it shall not be con- 
 strued to affect his innocence or guilt." 
 
 Maine. — Rev. Stat, (official), 1871, 
 title 11, ch. 134, § 19, p. 888 : " . . . In 
 all criminal trials the accused shall, 
 at his own request, but not otherwise, 
 be a competent witness. The husband 
 or wife of the accused shall be a com- 
 petent witness when either is called, 
 with the consent of the respondent." 
 
 In 1879 the legislature passed a bill, 
 approved February 14th, 1879, en- 
 titled "An act relating to the testi- 
 mony of persons accused of crime," 
 and being ch. 92, Laws of 1879, which 
 reads as follows : — 
 
 " Sec. 1. The fact that the defendant 
 in a criminal prosecution does not 
 testify in his own behalf, shall not be 
 taken as evidence of his guilt. 
 
 " Sec. 2. The defendant in a crimi- 
 nal prosecution who testifies in his 
 own behalf, shall not be compelled to 
 testify on cross-examination to facts 
 that would convict or furnish evidence 
 to convict him of any other crime than 
 that for which he is on trial." 
 
 Concerning § 2, the Supreme Judi- 
 cial Court say, in State ?'. Witham, 72 
 Me. 531, it " neither excludes evidence 
 
DEFENDANTS IN CRIMINAL CASES. 
 
 261 
 
 which charges or confesses extraneous 
 criminalities, the evidence of which, 
 from circumstances, becomes relevant 
 and material to the main question in 
 issue." 
 
 Maryland. — Rev. Code, 1878, § 3, 
 p. 750: "In the trial of all indict- 
 ments, complaints and other proceed- 
 ings against persons charged with the 
 commission of crimes and offences, 
 and in all proceedings in the nature 
 of criminal proceedings in any court 
 of this state, and before a justice of 
 the peace or other officer acting judi- 
 cially, the person so charged shall, at 
 his own request, but not otherwise, be 
 deemed a competent witness ; but the 
 neglect or refusal of any such person 
 to testify shall not create any pre- 
 sumption against him." 
 
 Massachusetts. — Pub. Stat. 1882, 
 ch. 169, § 18, p. 987 : "No person of 
 suflficient understanding, whether a 
 party or otherwise, shall be excluded 
 from giving evidence as a witness in 
 any proceeding, civil or criminal, in 
 court, or before a person having 
 authority to receive evidence, except 
 in the following cases : . . . 
 
 " Third. In the trial of all indict- 
 ments, complaints and other proceed- 
 ings against persons charged with the 
 commission of crimes or oifences, a 
 person so charged shall, at his own 
 request, but not otherwise, be deemed 
 a competent witness ; and his neglect 
 or refusal to testify shall not create 
 any presumption against him." 
 
 Michigan. — ■ Formerly it was per- 
 missible in this State for the accused 
 to "make a statement to the court or 
 jury." The law (Comp. Laws, 1871, 
 title 30, ch. 188, § 100, grand number 
 of section, 59G7, vol. 2, p. 1715) read- 
 ing that "... Nothing in this act shall 
 be construed as giving the right to 
 compel a defendant in criminal cases 
 to testify, but any such defendant 
 shall be at liberty to make a state- 
 ment to the court or jury, and may be 
 cross-examined upon any such state- 
 ment"; but as now amended in 1881 
 (Pub. Acts, Session of 1881, No. 
 245, p. 335), it reads : " No person 
 shall be disqualified as a witness in 
 any criminal case or proceeding by 
 
 reason of his interest in the event of 
 the same as a party or otherwise, or 
 by reason of his having been con- 
 victed of any crime ; but such interest 
 or conviction may be shown for the 
 purpose of affecting his credibility; 
 provided, however, that a defendant in 
 any criminal case or proceeding shall 
 only at his own request be deemed a 
 competent witness, and his neglect to 
 testify shall not create any presump- 
 tion against him, nor shall the court 
 permit any reference or comment to 
 be made to or upon such neglect." 
 
 Minnesota. — General Statutes of 
 Minnesota, 1878, § 7, p. 702 : " . . . And 
 on the trial of all indictments, com- 
 plaints and other proceedings against 
 persons charged with the commission 
 of crimes or offences, the person so 
 charged shall, at his own request, but 
 not otherwise, be deemed a competent 
 witness ; nor shall the neglect or re- 
 fusal to testify create any presump- 
 tion against the defendant, nor shall 
 such neglect be alluded to or com- 
 mented upon by the prosecuting at- 
 torney or by the court." 
 
 Mississippi. — By ch. 78, Laws 
 1882, § 1603, the Revised Code of 
 1880 was amended so as to read as 
 follows : — 
 
 " Sec. 1603. The accused shall be a 
 competent witness for himself in any 
 prosecution against him ; and the fail- 
 ure of the accused in any case to tes- 
 tify in his own behalf shall not operate 
 to his prejudice, nor be commented on 
 by counsel." For decisions under the 
 law as it stood before amendment, see 
 Howze V. State, 59 Miss. 230; 'Wil- 
 liamson V. State, Id. 235 ; Owens u. 
 State, Id. 547. 
 
 Missouri. — Code of Pro. (Wins- 
 low's annotated edition) 1879, ch. 24, 
 entitled "Of Crimes and Criminal 
 Procedure," Art. 18, § 1918, p. 412: 
 "No person shall be incompetent to 
 testify as a witness in any criminal 
 cause or prosecution by reason of 
 being the person on trial or examina- 
 tion, or by reason of being the hus- 
 band or wife of the accused ; but any 
 such facts may be shown for the pur- 
 pose of affecting the credibility of 
 such witness ; provided, that no person 
 
2G2 
 
 COMPETENCY. 
 
 [chap. IX. 
 
 on trial or examination, nor wife nor 
 husband of such person, shall be re- 
 quired to testify, but any such person 
 may, at the option of the defendant, 
 testify in his behalf, or on behalf of a 
 co-defendant, and shall be liable to 
 cross-examination as to any matter 
 referred to in his examination-in-chief, 
 and may be contradicted and im- 
 peached as any other witness in the 
 case; provided, that in no case shall 
 husband or wife, when testifying under 
 tlie provisions of this section for a 
 defendant, be permitted to disclose 
 confidential communications had or 
 made between them in the relation of 
 such husband and wife ; if the accused 
 shall not avail himself or herself of 
 his or her right to testify, or of the 
 testimony of the wife or husband, on 
 the trial of the case, it sl^^U not be 
 construed to affect the innocence or 
 guilt of the accused, nor shall the 
 same raise any presumption of guilt, 
 nor be referred to by any attorney in 
 the case, nor be considered by the 
 court or jury before whom the trial 
 takes place." 
 
 Nebraska. — Comp. Stat. 1881, 
 § 473, p. 73.J : "... In the trial of 
 all indictments, complaints and other 
 proceedings against persons charged 
 with the commission of crimes or 
 offences, the person so charged shall, 
 at his own request, but not otherwise, 
 be deemed a competent witness ; nor 
 shall the neglect or refusal to testify 
 create any presumption against him, 
 nor shall any reference be made to, 
 nor any comment upon, such neglect 
 or refusal." 
 
 Nevada. — Comp. Laws, §§ 2305, 
 2306, p. 552 : — 
 
 " Sec. 1. In the trial of all indict- 
 ments, complaints, and other proceed- 
 ings against persons charged with the 
 commission of crimes or offences, the 
 person so charged shall, at his own 
 request, but not otherwise, be deemed 
 a competent witness, the credit to be 
 givfen to his testimony being left 
 solely to the jury, under the instruc- 
 tions of the court. 
 
 " Sec. 2. Nothing herein contained 
 shall be construed as compelling any 
 such person to testify ; and in all 
 
 cases wherein the defendant to a crim- 
 inal action declines to testify, the 
 court shall specially instruct the jury 
 that no inference of guilt is to be 
 drawn against him for that cause." 
 
 New Hampshire. — Gen. Laws, 
 1378, §§ 25, 26, p. 532 : — 
 
 " Sec. 25. In the trial of all indict- 
 ments, complaints, and other proceed- 
 ings against persons charged with the 
 commission of crimes and offences, 
 the person so charged shall, at his 
 own request, but not otherwise, be a 
 competent witness. 
 
 " Sec. 26. Nothing herein contained 
 shall be construed as compelling any 
 such person to testify, nor shall any 
 inference of his guilt result if he does 
 not testify, nor shall the counsel for 
 the prosecution comment thereon in 
 case the respondent does not testify." 
 
 New Jersey. — Rev. 1877, § 8, p. 
 378 : " Upon the trial of any indict- 
 ment, allegation or accusation of any 
 person charged with crime, the person 
 indicted or accus|d shall be admitted 
 to testify as a witness upon such trial, 
 if he shall offer himself as a witness 
 therein in his own behalf." 
 
 New York. — In this State the first 
 enactment was that of ch. 678, 
 Laws, 1869, incorporated in Revised 
 Statutes (Banks & Brother's 6th edi- 
 tion). Vol. 3, p. 1032, and was as 
 follows : " In the trial of all indict- 
 ments, complaints, and other proceed- 
 ings against persons charged with the 
 commission of crimes or offences, and 
 in all proceedings in tlie nature of 
 criminal proceedings in any and all 
 courts, and before any and all officers 
 and persons acting judicially, the 
 person so charged shall, at his own 
 request, but not otherwise, be deemed 
 a competent witness ; but the neglect 
 or refusal of any such person to tes- 
 tify shall not create any presumption 
 against him." 
 
 Under this statute the great major- 
 ity of the judicial decisions in this 
 State upon this subject were rendered ; 
 hence its present value for the pur- 
 poses of comparison. 
 
 Code Crim. Pro. 1881, § 393: "The 
 defendant in all cases may testify 
 as a witness in his own behalf, 
 
153.] 
 
 DEFENDANTS IN CEIMINAL CASES. 
 
 263 
 
 but his neglect or refusal to testify 
 does not create any presumption 
 against him." 
 
 North Carolina. — Laws, 1881, oh. 
 110, §2: "That in the trial of all 
 indictments, complaints, or other 
 proceedings against persons charged 
 with the commission of crimes, of- 
 fences, and misdemeanors in the 
 superior, inferior, criminal, and jus- 
 tices' of the peace courts of this State, 
 the person so charged shall, at his 
 own request, but not otherwise, be a 
 competent witness ; and his failure to 
 make such request shall not create 
 any presumption against him." See 
 also Code, 1883, Vol. 1, p. 541, § 1353. 
 
 Ohio. — Rev. Stat. 1880, § 7280, p. 
 1709: "On the trial of all indict- 
 ments, complaints, and other proceed- 
 ings against a person charged with 
 the commission of an offence, the 
 person so charged shall, at his own 
 request, but not otherwise, be a com- 
 petent witness ; but his neglect or 
 refusal to testify shall not create 
 any presumption against him, nor 
 shall any reference be made to, nor 
 any comment be made upon, such 
 neglect or refusal." 
 
 Oregon. — Gen. Laws, 1872, §§ 162, 
 163, 166. A sole defendant in a 
 criminal case cannot be a witness, but 
 one of two or more jointly accused 
 persons may be discharged from the 
 indictment, and he may then testify 
 for the State or his co-defendant. 
 
 Pennsylvania. — Here the innova- 
 tion made its way step by step. By 
 act No. 23, Laws of 1872, persons on 
 trial " charged with the commission 
 of crimes or offences, not above the 
 grade of misdemeanor, in^'any court 
 of record of criminal jurisdiction," 
 might, at their own request, be 
 deemed competent witnesses; but 
 " neglect or refusal to testify shall not 
 create any presumption against him, 
 nor shall any reference be made to, 
 nor shall any comment be made upon, 
 such neglect or refusal, by counsel in 
 the case, during tlie trial of the 
 cause ; provided, that this act shall 
 not extend to the trial of any person 
 on an indictment for perjury or 
 forgery." 
 
 The succeeding year, by an act ap- 
 proved June 20, 1873 (see Laws, 1874, 
 No. 220, p. 331), the provisions of tlie 
 act of 1872 were extended so as to 
 afford " the class of witnesses therein 
 named the privilege of testifying in 
 all courts of criminal jurisdiction." 
 
 Theretofore it was available in 
 courts of record only. 
 
 The march of liberality continuing. 
 Laws, 1877, No. 43, p. 45, widens 
 the range and enacts as follows : 
 " That in the trial of all indictments, 
 compMnts, and other proceedings, in 
 any court of criminal jurisdiction, 
 against persons charged with the com- 
 mission of misdemeanors and felonies, 
 except felonies triable exclusively in 
 the Court of Oyer and Terminer, the 
 person so charged shall, at his own 
 request, but^ot otherwise, be deemed 
 a competent witness ; but his or her 
 neglect, omission, or refusal to testify 
 shall not create any presumption 
 against him or her, nor shall any 
 reference be made to, nor shall any 
 comment be made upon, such neglect, 
 omission, or refusal, by counsel in 
 the case, during the trial of the 
 cause." 
 
 In 1879, by Act No. 158 (p. 140, 
 Laws, 1879), receivers of stolen goods 
 were, upon their trial, permitted to 
 testify in their own behalf, with the 
 same rights in the case of neglect, 
 omission, or refusal so to testify as 
 remain to the accused under the gene- 
 ral statute. 
 
 Rhode Island. — Pub. Stat. 1882, 
 ch. 214, § 39 : " No respondent in a 
 criminal prosecution, offering himself 
 as a witness, shall be excluded from 
 testifying because he is such respond- 
 ent; and the neglect or refusal so to 
 testify shall create no presumption 
 against him." 
 
 South Carolina. — Gen. Stat. 1882, 
 §§ 2231-2233, p. 639 : — 
 
 " Sec. 2231. In the trial of all crim- 
 inal cases the defendant shall be 
 allowed to testify (if he desires to do 
 so, and not otherwise) as to the facts 
 and circumstances of the case. 
 
 "Sec. 2232. No person shall be 
 required to answer any question tend- 
 ing to criminate himself, nor shall 
 
264 
 
 COMPETENCY. 
 
 [chap. IX. 
 
 husband or wife be required to dis- 
 close any communication made to 
 eacli other during their coverture. 
 
 " Sec. 2233. Testimony given under 
 the provisions of Sections 2231 and 
 2232 of this chapter shall not be after- 
 wards used against the person testify- 
 ing in any other criminal case, except 
 upon an indictment for perjury foun- 
 ded on that testimony." 
 
 Utah Territory. — " Criminal Pro- 
 cedure" Act, § 422 (Laws, 1878, p. 
 151): "A defendant in a criminal 
 action or proceeding to which he is a 
 party, is not, without his consent, a 
 competent witness for or against him- 
 self. His neglect or refusal to give 
 his consent shall not in any manner 
 prejudice him, nor be used against 
 him on the trial or proceeding." 
 
 Vermont. — Rev. Laws, 1880, § 
 1655, p. 348 : " On the trial of indict- 
 ments, complaints, informations and 
 other proceedings against persons 
 charged with crimes or offences, the 
 person so charged shall, at his own 
 request, and not otherwise, be deemed 
 a competent witness, the credit to be 
 given to his testimony being left solely 
 to the jury, under the instructions of 
 the court; but the refusal of such 
 person to testify shall not be con- 
 sidered by the jury as evidence 
 against him." 
 
 Virginia. — -The observations upon 
 the Laws of Pennsylvania (supra) 
 are applicable here, where the ad- 
 vances of legislation have been more 
 deliberate even than there. 
 
 Code, 1873, § 25, p. 1110 : " Here- 
 after in all prosecutions for assault 
 and battery and unlawful trespass, 
 the accused may be sworn and exam- 
 ined as a witness in his own behalf." 
 
 In 1878 a " Criminal Code " was 
 enacted (ch. 311 Acts of Assembly, 
 1877-78), and by § 19 of ch. 14 there- 
 of, as amended by ch. 228 of the Acts 
 of Assembly, 1881-82, we learn that 
 "... Hereafter in all prosecutions 
 for assault and battery, unlawful 
 trespass and in all prosecutions 
 under Sections ten and eleven of 
 Chapter two of new Criminal Code, 
 approved March fourteen, eighteen 
 hundred and seventy-eight, the accused 
 
 may be sworn and examined as a 
 witness on his own behalf." 
 
 Section 10, above referred to, pre- 
 scribes the penalty for "malicious 
 wounding, with intent to maim, dis- 
 figure, disable or kill," and § 11 tliat 
 for shooting, etc., in committing, or 
 attempting to commit, a felony. 
 
 Washington Territory. — Code, § 
 1067, p. 200: ". . . Any person 
 accused of any crime in this territory 
 by indictment or otherwise, may, in 
 the examination or trial of the cause, 
 offer himself or herself as a witness 
 in his or her own behalf, and shall be 
 allowed to testify as other witnesses 
 in such case, and when such accused 
 shall so testify, he or she shall be sub- 
 ject to all the rules of law relating to 
 cross-examinations of other witnesses; 
 provided, that nothing in this act shall 
 be construed to compel such accused 
 person to offer himself or herself as a 
 witness in such case ; and provided 
 farther, that it shall be the duty of the 
 court to instruct the jury that no 
 inference of guilt shall arise against 
 the accused if the accused shall fail 
 or refuse to testify as a witness in his 
 or her own behalf." 
 
 West Virginia. — Sections 19 and 
 20 of the Code, as amended by ch. 151 
 of the acts of 1882 (passed March 
 27th, 1882), p. 484, read: — 
 
 " Sec. 19. In any trial or examina- 
 tion in or before any court or officer 
 for a felony or misdemeanor, the ac- 
 cused shall, at his or her ov/n request, 
 but not otherwise, be a, competent 
 witness on such trial and examination. 
 The wife or husband of the accused 
 shall also, at the request of the 
 accused, but not otherwise, be a com- 
 petent witness on such trial and 
 examination; but a failure to make 
 such request shall not create any 
 presumption against him or her, nor 
 shall any reference be made to, nor 
 comment upon, such failure by any 
 one during the progress of the trial 
 in the hearing of the jury. 
 
 " Sec. 20. In a criminal prosecution, 
 other than for perjury, evidence shall 
 not be given against the accused of 
 any statement made by him as a 
 witness upon a legal examination." 
 
§ 153.] 
 
 DEFENDANTS IK CHIMIN AL CASES. 
 
 265 
 
 Wisconsin. — Eer. Stat. 1878, § 
 4071, p. 992: "In all criminal actions 
 and proceedings the party charged 
 shall, at his own request, but not other- 
 wise, he a competent witness ; but his 
 refusal or omission to testify shall 
 create no presumption against him, 
 or any other party thereto." 
 
 Wyoming Territory. — Laws, 1878, 
 
 p. 25, under head of " Criminal 
 Laws " : — 
 
 " Sec. 1. The defendant, in all crim- 
 inal cases, in all the courts of this 
 territory, may be sworn and examined 
 as a witness, if he so elect, but shall 
 not be required to testify in any case. 
 
 " Sec. 2. If the defendant so elect, 
 he may make a statement to the jury 
 without being sworn," 
 
CHAPTER X. 
 
 EULES AS TO HUSBAND AND WIFE. 
 
 § 154. The Common-law Rule excluding them. 
 
 § 155. Scope and Extent of the Rule. 
 
 § 156. Not Competent against each other. 
 
 § 157. Or for each other. 
 
 § 158. Or to prove Non-access. 
 
 § 159. Proving the Marriage — its Duration Immaterial. 
 
 § 160. Limits and Exceptions to the Rule. 
 
 § 161. Collateral Proceedings. 
 
 § 162. Cases of Agency. 
 
 § 163. Effect of Consent, or Release of Interest. 
 
 § 164. Surviving Husband. 
 
 § 165. Widow. 
 
 § 166. Divorced Spouse. 
 
 § 167. Cases of Personal Injuries. 
 
 § 168. Actions for Divorce, or to annul the Marriage. 
 
 § 169. Actions for Abduction, or for Criminal Conversation. 
 
 § 170. Criminal Actions. 
 
 § 154. The Common-la-w Rule excluding them. — The rule 
 of the commoii law excluding parties from the witness-box 
 also excluded the husband or wife of a party, as a witness 
 for or against the party .^ Where the husband was a party, 
 the wife could not testify ,2 nor could she where the husband 
 was disqualified by reason of interest in the event ; ^ so, also, 
 the wife being a party, the husband was incompetent.* 
 
 This rule Avas founded partly on their identity of interest, 
 and partly on a principle of public policy lying at the basis 
 
 1 Co. Litt. 6 b; Gilb. Ev. 119; B. s Smead v. Williamson, 16 B. Mon. 
 
 N. P. 286; White v. Stafford, 38 (Ky.) 492; Bank of Alexandria v. 
 
 Barb. (N. Y.) 419; Biliin v. Bihin, Mandeville, 1 Cranch, C. Ct. 575; 
 
 17 Abb. (N. y.) Pr. 19 ; A. A. C. v. Pryor v. Ryburn, 16 Ark. 671 ; Grif- 
 
 T. C, 25 How. (N. Y.) Pr. 432; fin o. Brown, 2 Pick. (Mass.) 304; 
 
 Moffat V. Moffat, 17 Ahb. (N. Y) Pr. Vandiver v. Glaspy, 7 Rich. (S. C.) 
 
 4; Rogers v. Rogers, 1 Daly (N. Y.) 14; Larrabee v. Wood, 54 Vt. 452. 
 
 194 ; Hall v. Hall, 30 How. (N. Y.) " Higdon v. Higdon, 6 J. J. Marsh. 
 
 Pr. 51. (Ky.) 48 ; Bird v. Davis, 14 N. J. Eq. 
 
 2 Weikel v. Probasco, 7 Ind. 690 
 Tacket v. May, 3 Dana (Ky.) 79 
 Kelley o. Proctor, 41 N. H. 139 
 
 Breed u. Gove, Id. 452 ; Manchester Black, Spears (S. C.) Ch. 431, 
 V. Manchester, 24 Vt. 649 ; Seargent 
 V. Seward, 31 Vt. 509. 
 
 (1 McCart.) 467; Cull u. Herwig, 18 
 La. Ann. 315; Stewart v. Stewart, 7 
 Johns. (N. Y.) Ch. 229; Osborn o. 
 
§ 155.] ETJLES AS TO HUSBAND AND WIFE. 267 
 
 of civil society, wliicli was intended to guard tlie security and 
 confidence of private life, and prevent discords in families, 
 even at the risk of an occasional failure of justice.-' The rule 
 vi^as an inflexible one, and from it no evasion V7as permitted.^ 
 This common-law rule also prevailed in equity,^ and even the 
 death of one of the parties to the marriage,* or its dissolution 
 by divorce or judicial annulment did not operate to relax it.^ 
 
 § 155. Scope and Extent of the Rule. — The rule was 
 applied to exclude the wife where, though not the nominal 
 party, the husband was the beneficial plaintiff in the suit.'' 
 If his interests were directly involved so as to be concluded 
 by any verdict or judgment in the case, she could not testifj'.'^ 
 Direct interest of either spouse, in the result of the litigation, 
 totally disqualified the other as a witness.^ So, though the 
 husband was not a party, the wife could not testify to any 
 matter for which he might be indicted ; ^ and the wife of 
 one of two or more co-defendants was an incompetent wit- 
 ness, either for or against the other defendants who joined 
 with her husband in the defence,^" even after her husband 
 had suffered a default to be taken against him.^i 
 
 In applying these principles, it has been held that a wit- 
 ness whose wife had funds invested in the business of the 
 plaintiff copartnership was incompetent as a witness,^^ as was 
 a witness whose wife was a stockholder in the bank which 
 brought the suit ; ^^ and another, the trustee of his wife's 
 property being a party, was not permitted to testify for the 
 
 1 O'Connor v. Majoribanks, 4 M. cSb ' Young v. Oilman, 46 N. H. 484; 
 G. 443; Stein v. Bowman, 13 Pet. (U. Brown «. Burrington, 36 Vt. 40; 
 S.) 223; Davis K. Dinwoody, 4 T. R. Pringle v. Pringle, 59 Pa. St. 281; 
 678 ; Bentley v. Cooke, 3 Doug. 422. Larabee v. Wood, 54 Vt. 452 ; Lewis 
 
 2 Tulley V. Alexander, 11 La. Ann. v. McDougall, 17 Wis. 517. 
 
 628 ; Kemp v. Downham, 5 Harr. 8 ■W'heeler v. Wheeler, 47 "Vt. 637 ; 
 
 (Del.) 417; Waddams v. Humphrey, Bierly's Estate, 81* Pa. St. 419. 
 
 22 111. 661 ; Bradford ^. Williams, 2 ^ Den. v. Johnson, 3 Harr. (N. J.) 
 
 Md. Ch. 1 ; Kimbrough v. Mitchell, 1 87. 
 
 Head (Tenn.) 539. And see Peaslee i" 1 Hale, P. C. 301 ; Rex v. Hood, I 
 
 V. MeLoon, 16 Gray (Mass.) 488, Moo. C. C. 281; Tomlinson k. Lynch, 
 
 where the English cases are reviewed. 32 Mo. 160 ; Craig v. Kittredge, 20 N. 
 
 3 Vowles V. Young, 13 Ves. 144. H. 169. 
 
 * Infra, §§ 164, 165. " Sparhawk v. Buell, 9 Vt. 41. 
 
 6 Infra, § 166. 12 Jackson v. Miller, 1 Dutch. (N. J.) 
 
 '^ Pyle V. Maulding, 7 J. J. Marsh. 90. 
 
 (Ky.) 202; Earrell v. Ledwell, 21 is Ro„th w. Agricultural Bank, 12 
 
 Wis. 182; Joice ,,■. Branson, 73 Mo. Sm. & M. (Miss.) 161. 
 28. 
 
268 COMPETENCY, [CHAP. X. 
 
 trustee, although he had no interest in the subject-matter 
 of the trust.^ So the husband was not permitted to testify 
 in support of a nuncupative will claimed to have been made 
 in favor of his wife ; ^ or to prove a marriage contract in her 
 favor.'^ , 
 
 The wife of a special bail was an incompetent witness for 
 the principal defendant.* She could not prove the fact of 
 her husband's bankruptcy.^ And neither could testify, in a 
 proceeding to which they were parties, to enforce a me- 
 chanics' lien against their property.® 
 
 But this common-law rule has been greatly relaxed in 
 many jurisdictions, and almost totally abrogated in others. 
 The various statutory provisions effect quite different results 
 in the several States,'^ some of them placing the admissibility 
 of the testimony of husband and wife upon the same plane 
 as that of persons in no way related one to another (except 
 as to confidential communications between them),^ and others 
 only partially, and more hesitatingly obliterating the safe- 
 guards built up around the marriage relation by the common 
 law. In one respect, however, there seems to be considerable 
 unanimity among the decisions interpreting the so-called "en- 
 abling acts," i.e., it is pretty well settled by the weight of 
 authority, that the removal, by these statutes, of the disquali- 
 fication of interest in the event, as a party or otherwise, does 
 not remove the common-law inhibition as to the testimony 
 of husband or wife for or against the other, the common-law 
 rule not being founded upon the interest of the witness, but 
 upon grounds of public policy.^ Another rule of construc- 
 
 iBurrell o. Bull, 3 Sandf. (N. Y.) Ashcroft, 4 C. E. Gr. (N. J.) 339; 
 
 Ch. 15; Hasbrouck f. Vandervoort, 9 Macondray v. Wardle, 26 Barb. (N. 
 
 N. Y. 158. Y.) 612; Andrews v. Nelson, 7 Abb. 
 
 2 Jones V. Norton, 10 Tex. 120. (N. Y.) Pr. 3, note. 
 
 3 McDuffie u. Greenway, 24 Tex. ' See a compilation of the statutes, 
 625. supra, Chap. VIII. 
 
 * Leggett V. Boyd, 3 "Wend. 'N. Y.) » As to these, see infra, § 274. 
 
 376. 9 Lucas v. Brooks, 18 Wall. (U. S.) 
 
 6 Ex parte James, 1 P. "Wras. 610, 436 ; Dawley v. Ayers, 23 Cal. 108 ; 
 
 611. Stanley v. Stanton, 36 Ind. 445; 
 
 6 Briggs V. Titus, 7 E. 1. 441. For fur- McKeen v. Frost, 46 Me. 239 ; Kelley 
 
 ther decisions illustrating the applica- v. Drew, 12 Allen (Mass.) 107; Gee 
 
 tion of the rule, see Gilleland v. Martin, v. Scott, 48 Tex. 510 ; Cram v. Cram, 
 
 3 McLean (U. S.) 490; Jones v. Bas- 33 Vt. 15; Ee Jones, 6 Biss. (U. S.) 
 
 sett, 27 Ind. 58 ; Beard «. Morancy, 2 68 (Wisconsin). To the contrary. 
 
 La. Ann. 347 ; Bobbins v. Abrahams, 1 Lockhart v. Luker, 36 Miss. 68 ; but 
 
 Halst. (N. J.) Eq. 465 ; Petriok v. compare Uunlap v. Hearn, 37 Id. 471. 
 
§ 156.] 
 
 EL'LES AS TO HUSBAND AND WIFE. 
 
 269 
 
 tion of these statutes is, that the witness is not rendered 
 competent, merely because the husband or wife of the wit- 
 ness is a party, but that the witness himself, or herself, as 
 the case may be, must be a party in order to get the benefit 
 of the statute.^ 
 
 § 156. Not Competent against each other. — It was well 
 settled at common law tliat neither party to the mar- 
 riage could testify against the other in any action, civil or 
 criminal;^ even though her husband was unnecessarily 
 made a co-defendant in equity, the wife was not competent 
 for the plaintiff.^ She could not discredit a joint title in 
 herself and her husband coming to them through her own 
 heirship;* nor could she give testimony the tendency of 
 
 1 Barber v. Goddard, 9 Gray (Mass.) 
 71; Rayw. Smith, Id. 141; Blake v. 
 Lord, 16 Id. 387 ; White v. Stafford, 
 38 Barb. (N. Y.) 419; Carpenter v. 
 Moore, 43 Vt. 392. 
 
 In Colorado, the husband may tes- 
 tify where the separate property of 
 the wife is concerned. Hanna i;. 
 Barker, 6 Colo. 303. 
 
 In Illinois, neither husband nor 
 wife can testify for or against the 
 other, except in the cases enumerated 
 in the statute. Phares v. Barbour, 49 
 111. 370 ; Keep v. Griggs, 12 111. App. 
 511. See also Warrick v. Hull, 102 
 111. 280. 
 
 In Indiana, where the husband has 
 no such interest in the issue as would 
 render him competent if suing or 
 being sued alone, he cannot testify. 
 Hollowell I. Simonson, 21 Ind. 398. 
 See also Drew v. Roberts, 48 Me. 35. 
 
 In Iowa, the fact that both are 
 parties does not render the wife com- 
 petent, but the husband can waive 
 the statutory prohibition. Russ v. War 
 Eagle, 14 Iowa, 363. Either may make 
 the waiver. Blake v. Graves, 18 Iowa, 
 312; Jordan v. Henderson, 19 Id. 565. 
 
 In Massachusetts, both are compe- 
 tent and compellable to testify, except 
 on the trial of a criminal proceeding 
 against the other. Pub. Stat. ch. 169, 
 §18. 
 
 In New York, the wife may testify, 
 but if her husband is precluded from 
 being a witness by § 829 of the Code 
 
 of Civ. Pro., she is also. Whitehead 
 V. Smith, 81 N. Y. 151. See supra, § 
 130. 
 
 In West Virginia, the statutes make 
 no material change in the competency 
 of husband or wife, except to allow 
 them to be witnesses for or against 
 each other in suits between them- 
 selves. Hill V. Proctor, 10 W. Va. 
 59 ; Rose v. Brown, 11 Id. 122 ; An- 
 derson V. Snyder, 21 Id. 632. Where 
 a husband and wife are parties to a 
 suit in company with others, the hus- 
 band or wife can in general only tes- 
 tify as to controversies, involved in 
 the suit, in which they alone are ma- 
 terially interested. Zane v. Fink, 18 
 W. Va. 693. 
 
 In Wisconsin, husband and wife 
 are competent witnesses for or against 
 each other in three cases only: (1) 
 where both are parties to the action ; 
 (2) where one is charged with per- 
 sonal violence upon the other; (3) 
 where one has acted as the agent of 
 the other, as to matters within the 
 scope of such employment, Carney v. 
 Gleissner, 59 Wis. 249. 
 
 2 Kyle V. Frost, 29 Ind. 382 ; Carter 
 V. Taylor, 20 La. Ann. 421 ; Blain v. 
 Patterson, 47 N. H. 523; Copous v. 
 Kauffman, 8 Paige (N. Y.) 583; Er- 
 wini;. Smaller, 2 Sandf. (N. Y.) 340; 
 Edwards v. Pitts, 3 Strobh. (S. C.) 140. 
 
 3 Leach v. Shelby, 58 Miss. 681. 
 
 * Moody V. Fulmer, 3 Grant (Pa.) 
 Cas. 17. 
 
270 COMPETENCY. [CHAP. X. 
 
 which was to discredit her Iiusband.^ She could not sup- 
 port an action against her husband for the price of her own 
 board,^ or testify against him in an action against both for 
 the value of labor and materials furnished to herself.^ 
 
 On the other hand, the husband was also forbidden to 
 testify against his wife, even to prove his marriage to her 
 where she sued as a feme sole,'^ or to prove that property 
 sought to be replevied from the wife was purchased by him 
 and sold to the plaintiff, in rebuttal of testimony tending to 
 show a gift of the property to the wife.^ 
 
 § 157. Or for each other. — Neither was the husband al- 
 lowed to testify in favor of the wife, or the wife in favor of 
 the husband, in civil or criminal proceedings. If a female 
 defendant plead coverture, the alleged husband could not 
 prove his marriage with her.^ The husband could not testify 
 in behalf of the interest of the wife in her separate estate ; '^ 
 and this, even though she was not a party to the record.^ 
 So, on tlie trial of a right of property, where the claimant 
 was a feme covert, her husband was incompetent in her be- 
 half,^ and the wife was likewise incompetent to testify in the 
 husband's favor under like circumstances.-^" 
 
 Again, a husband was not a competent witness to a deed 
 conveying land to the wife, and executed during marriage.-'^ 
 
 ' Keaton u. McGwier, 24 Ga. 217. ' Miller c. Williamson, 5 Md. 219 
 
 Con/ra, "VVarey.State,6Vr.(N.J.)653. Wilson u. ShepparJ, 28 Ala. 623 
 
 2 Burlen o. Shannon, 14 Gray Dwelly v. Dwelly, 46 Me. 377 ; Wil 
 (Mass.) 433. liamson v. Morton, 2 Md. Ch. 94 
 
 3 Main v. Stephens, 4 E. D. Smith Marsman v. Conklin, 2 C. E. Gr. (N, 
 (N. Y.) 86. S. P., Bast v. Auspach, 1 J.) 282; Cramer v. Eeford, Id. 367 
 Leg. Gaz. (Pa.) Rep. 25. Galway v. Pullerton, Id. 389; Warner 
 
 4 Bently v. Cook, 3 Dougl. 442. v. Dyett, 2 Edw. (N. Y.) 497. 
 
 6 Stanley v. Schultz, 47 Ind. 217. = Cobb v. Edmondson, 30 Ga. 30 ; 
 
 Compare Davis v. Dimvoody, 4 T. E. Harrell v. Hammond, 2-5 Ind. 104. 
 
 078. 9 Moore v. M'Kie, 5 Sm. & M. 
 
 For statutory modifications of this (Miss.) 238. S. P., Wall v. Nelson, 3 
 
 rule in civil cases, see Albaugh v. Litt. (Ky.) 395; Caperton n. Callison, 
 
 James, 29 Ind. 398; Lowe v. Hughes, 1 J. J. Marsh. (Ky.) 397; Hopkins v. 
 
 Id. 399; Crane v. Buohannan, Id. 570; Smith, 7 Id. 263; Hodges o. Branch 
 
 Leonard v. Green, 30 Minn. 496; Bank at Montgomery, 13 Ala. 455; 
 
 Rowley v. MoHugh, 66 Pa. St. 269; Gross v. Reddig, 45 Pa. St. 406. So, 
 
 Ballentine v. White. 77 Pa. St. 20; where the claimant was a trustee for 
 
 Edwards v. Dismukes, 53 Tex. 605. the wife. Hall v. Dargan, 4 Ala. 696. 
 
 How the rule is applied in criminal S. P., Wier v. Buford, 8 Ala. 134. 
 
 cases, see infra, § 170. i" Dexter v. Parkins, 22 111. 143. 
 
 Woodgate v. Potts, 2 Car. & K. n Johnston ti. Slater, 11 Gratt. (Va.) 
 
 457. This was held otherwise in crim- 321. 
 inal cases, see infra, § 170. 
 
§ 157.] EULES AS TO HUSBAND AND WIFE. 271 
 
 He could not testify for lier even though he had no personal 
 interest whatever in the result of the suit.^ Wliere the wife 
 was a distributee and would gain by setting aside the will, 
 the husband could not testify for the contestant ; ^ nor could 
 he in such a case, there being no will, testify for the adminis- 
 trator in an action against him,^ or in an action brought by 
 the administrator to increase the assets of the estate.* Even 
 where the wife sued to recover damages sustained by her 
 from the intoxication of her husband, caused by the use of 
 liquor sold to him by the defendant, he could not testify in 
 her behalf .5 
 
 The wife was equally debarred from aiding her husband's- 
 cause. Both her testimony and her declarations were inad- 
 missible in his behalf.^ She could not sustain a title granted 
 by her husband by deed of general warranty;^ or aid him in 
 resisting an attachment suit,^ or in maintaining trespass de 
 bonis asportatis? She could not, by her declarations made 
 soon after the birth of her child, that it was born alive, sup- 
 port her husband's claim to an estate by the curtesy.^" Her 
 testimony was inadmissible even where he had only a con- 
 tingent interest in the result of the suit favorable to the 
 party for whom her testimony was offered; e.g., when the 
 husband's fees as attorney depended upon it.^^ The only 
 case in which she could testify in favor of her husband was 
 where she had acted in the matter in controversy as his 
 agent, and within the scope of her authority as such agent.^^ 
 
 '' Hosack V. Rogers, 8 Paige (N. Y) The statutory departures from these 
 
 229. principles are numerous. Thus, it is 
 
 2 Walker v. Walker, 34 Ala. 469. now held in some jurisdictions that 
 
 2 Gilkey v. Peeler, 22 Tex. 063. the husband or wife may testify in 
 
 '' Lisman v. Early, 12 Cal. 282. favor of the other, when the latter is 
 
 ' Jackson v. KecTes, 53 Ind. 231. unnecessarily made a party, Green 
 
 Contra in Illinois, Noy v. Creed, 1 111. v. Taylor, 3 Hughes (U. S.) 400 ; or 
 
 App. 557. where both are co-plaintiffs or co-de- 
 
 " Karney v. Paisley, 13 Iowa, 89. fendants. Marsh v. Potter, 30 Barb. 
 
 7 Leach v. Fowler, 22 Ark. 143. (N. Y.) 506. Another rule is, to 
 
 8 McCoUem v. White, 23 Ind. 43; admit either to testify in his or her 
 Boyle V. Haughey, 10 Phil. (Pa.) 98. own behalf only, Rogers v. Rogers, 
 
 ' Hayes v. Parmalee, 79 111. 563. 46 Ind. 1 ; or in behalf of the other 
 
 1' Gardner;;. Klutts, 8 Jones (N. C.) who is interested but not a party to 
 
 L. 375. the record, Peaslee v. McLoon, 16 
 
 " Whitehead u. Foley, 28 Tex. 268. Gray (Mass.) 488; Hastings «. Mc- 
 
 12 Hardy v. Mathews, 42 Mo. 406; Kinley, 1 E. D. Smith (N. Y.) 273. 
 
 Mountain u. Fisher, 22 Wis. 03. See The husband is held competent to 
 
 infra, § 162. testify in support of the wife's claim 
 
272 
 
 COMPETENCY. 
 
 [chap. X. 
 
 § 158. Or to prove Non-access. — The COmmon-law rule, 
 founded on decency, morality, and public policy, provides 
 that neither the husband nor the wife, at any time during 
 the continuance of the marriage, or after its determination 
 by death or divorce, shall be allovfed to prove non-access 
 during wedlock, i.e., the absence of the fact of sexual inter- 
 course, or of the opportunity of sexual intercourse, whatever 
 may be the form of the legal proceeding in which such testi- 
 mony is offered, or whoever may be the parties to it.^ And 
 the enabling acts do not seem to have changed the rule.^ 
 Under it, collateral facts could not be shown for the purpose 
 of proving non-acceSs : thus, the husband could not be asked 
 whether, at a particular time, he did not live at a distance 
 from his wife and cohabit with another woman.^ Neither 
 
 to property, Porter u. Allen, 54 Ga. 
 623; Wing v. Goodman, 75 111. 159; 
 Allen V. Russell, 78 Ky. 105 ; or where 
 the action affects her separate prop- 
 erty only, Snell v. Bray, 56 Wis. 156; 
 or Is brought to recover for services 
 rendered by her. Fowle v. Tidd, 15 
 Gray (Mass.) 94. 
 
 The wife is competent for her hus- 
 band (defendant in execution) on a 
 trial of the right of property, Hemp- 
 hill i;. Townsend, 7 Ala. 85.'5 ; or, gen- 
 erally, under the Connecticut statute, 
 Merriam v. Hartford &c. R. R. Co., 
 20 Conn. 354; contra, in North Car- 
 olina, Rice V. Keith, 63 N. C. 319; 
 e.g., to corroborate her husband, Lin- 
 coln Ave. &c. Road Co. u. Madans, 
 102 111. 417; the jury to give her 
 testimony " such credit as under the 
 circumstances they think it entitled 
 to," State V. Nash, 10 Iowa, 81. She 
 may testify for him when sued by an 
 administrator, she not being a party 
 to the record, Thompson v. Wadleigh, 
 48 Me. 66 ; or when sued in tres- 
 pass, for breaking and entering and 
 setting fire to plaintiff's barn, Buck- 
 nam o. Perkins, 55 Me. 490. She 
 may aid him in establishing a claim 
 against the estate of a deceased per- 
 son, Barry v. Sturdivant, 53 Miss. 
 490 ; or testify in favor of his assignee. 
 Prince v. Down, 2 E. D. Smith (N. Y.) 
 525; Farley v. Flanagan, 1 Id. 313. 
 In Pennsylvania, she may testify for, 
 
 but not against, him, Yeager u. 
 Weaver, 64 Pa. St. 425. Compare 
 Bellinger's Appeal, 71 Id. 425. 
 
 In Wisconsin, the rule is that where 
 two or more defendants must rely 
 upon the same defence, so that proof 
 of a good defence as to one establishes 
 a defence as to the other, the wife of 
 one cannot be a witness In behalf of 
 the other, unless the circumstances 
 are such as will permit her to testify 
 directly for her husband. Accord- 
 ingly, where the issue was whether 
 a conveyance, under which both de- 
 fendants claimed as grantees, was 
 ever delivered to them by the grantor, 
 it was held that the wife of one de- 
 fendant (not being herself a party), 
 could not testify for the other. Stew- 
 art V. Stewart, 41 Wis. 624. 
 
 In an early case in Massachusetts, 
 the suit being on a note given to the 
 wife before marriage, and indorsed 
 subsequently by her husband, it was 
 held that the wife could testify that 
 the note was paid before the indorse- 
 ment. Fitch V. Hill, 11 Mass. 286. 
 
 iR. V. Rook, 1 Wils. 340; R. v. 
 Luffe, 8 East, 193, 203; R. v. Kea, 11 
 Id. 132 ; Goodright v. Moss, Cowp. 
 494; Cope v. Cope, 1 M. & Rob. 269, 
 274. 
 
 2 Chamberlain v. People, 23 N. Y. 
 85 ; Boykin v. Boykin, 70 N. C. 262. 
 
 8 R. V. Stourton, 5 Ad. & E. 170. 
 
§ 159.] HULES AS TO HUSBAND AND WIFE. 273 
 
 party to the marriage could prove, directly, the illegitimacy 
 of a child born during wedlock.^ The mother of a child 
 begotten before marriage, but born after, could not testify 
 that her husband was not its father.^ 
 
 When the controversy is between third persons, there are 
 cases which hold the husband and wife competent to testify 
 as to the time of their marriage, the fact of access, the date 
 of the birth of a child, and any other independent facts 
 affecting the question of legitimacy;^ but in these cases, 
 for the most part, the evidence was admitted ex necessitate} 
 
 § 159. Proving the Marriage — its Duration Immaterial. — (1) 
 Proving the marriage.^ Sometimes where the competency of 
 a witness is questioned on the ground of marriage to a party 
 or person interested, the factum of the marriage is disputed, 
 and such marriage must be proved, to exclude the witness, or 
 disproved, to admit him. The presumption arising from 
 cohabitation is not enough to exclude the witness;'' although 
 presumptive proof of the marriage has been considered suffi- 
 cient to render the wife an incompetent witness against the 
 husband to disprove the marriage.^ 
 
 Generally, the husband or wife is competent to prove the 
 marriage so as to render the other an incompetent witness,^ 
 or to sustain the objection that the plaintiff was a married 
 
 1 E. V. Mansfield, 1 Q. B. 44:4. But macy, see Mosely v. Eakin, 15 Rich, 
 in E. w. Stourton, supra, Patterson, J., (S. C.) 324. For an early English 
 said that the parents could bastardize case contrary to the doctrine stated 
 their issue by any evidence except in the text, see Cooke f. Lloyd, Peake, 
 that of non-access. So, also, it is held Er. App. xxviii. 
 
 that the wife may testify to her own ^ Standen v. Standen, Peake's Cas. 
 
 adultery and name her paramour. 32; E. v. Bramley, 6 T. E. 330; 
 
 While she is not permitted to bastard- Parker u. Way, 15 N. H. 45 ; Corson 
 
 ize her own offspring, still the child's v, Corson, 44 N. H. 587 ; Page v. 
 
 illegitimacy haying been shown by Denuison, 1 Grant (Pa.) Cas. 377; 
 
 proper evidence, she is sometimes, Leaphart v. Leaphart, 1 So. Car. 199. 
 from necessity, permitted to testify as * See also Eaynham v. Canton, 3 
 
 to who is the father of the child. Eat- Pick. (Mass.) 293; Shaak's Estate, 4 
 
 cliff V. Wales, 1 Hill (N. Y.) 63, 65; Brews. (Pa.) 305. 
 People V. Overseers of Ontario, 15 ^ Most of the authorities on this 
 
 Barb. (N. Y.) 286; Parker v. Way, 15 topic will be found cited infra, § 170, 
 
 N.H. 45; Commonwealth u. Shepherd, wl}ere the competency of husband 
 
 6 Binn. (Pa.) 283; State v. Pettaway, and wife in criminal cases is treated. 
 3 Hawks (N. C.) 623; E. v. Eeading, « Hill v. State, 41 Ga. 484. 
 Cas. t. Hardw. 79, 82 ; E. v. Luffe, 8 ' Scherpf v. Szadeczky, 4 E. D. 
 
 East, 193. Smith (N. Y.) 110; Eose v. Niles, 1 
 
 2 Dennison v. Page, 29 Pa. St. 420 ; Abb. Adm. 411. 
 
 E. V. Mansfield, 1 Q. B. 444. But 8 Dixon v. People, 18 Mich. 84. 
 that she can testify in favor of legiti- 
 
274 COMPETENCY. [CHAP. X. 
 
 woman suing without her husband or any next friend.^ So, 
 also, the wife is a competent witness, in behalf of her child- 
 ren, to prove the marriage between herself and her husband.^ 
 But a woman who chiimed to be the widow of an intestate, 
 and as such entitled to letters on his estate, was held incom- 
 petent to establish the factum of her marriage with the 
 deceased.^ Otherwise held, where the legality of her mar- 
 riage with the deceased was the only question in issue.* 
 
 The marriage must be a lawful one to exclude the parties 
 to it. Lover and mistress are not incompetent witnesses by 
 reason of the fact of their immoral cohabitation.^ Where the 
 validity of the marriage is in doubt, the witness is gene- 
 rally rejected.^ The fact that the parties, in good faith, 
 believe their marriage to be valid, does not make it so ; and 
 its invalidity being shown, each becomes a competent wit- 
 ness for all purposes, even the disclosure of facts communi- 
 cated by one to the other during the period they lived 
 together honestly supposing their relation to be that of 
 husband and wife.^ 
 
 (2) Its duration immaterial. At what period the marital 
 relation had its inception is of no importance on the question 
 of the competency of either party to that relation as a witness 
 for or against the other. Where one party married a witness 
 already subpoenaed by his opponent to testify on the ap- 
 proaching trial, she was excluded.^ Nor does it matter that 
 the relation has been ended by death,^ or judicial decree.^" 
 
 1 Willis ■ii. TJnderhill, 6 How. (N. note. In Utah, the statute excludes 
 Y.) Pr. 396. Contra, Bentley v. Cook, the wife, except where the action is 
 3 Doug. 442. between herself and her husband. A 
 
 2 Christy v. Clarke, 45 Barb. (N. witness was offered by a party to the 
 Y.) 529. suit on trial with the statement that 
 
 8 Redgrave v. Redgrave, 38 Md. 93. " she is his plural, or second wife." 
 
 Compare Fitzsimmons v. Southwick, It was held that such witness should 
 
 38 Vt. 509. be excluded, and the court would not 
 
 * Greenawalt ». McEnelley, 85 Pa. try the question of the validity of the 
 
 St. 352. marriage, or the relations of the parties. 
 
 6 Batthews v. Galindo, 4 Bing. 610; Friel v. Wood, 1 Utah T. 160. But 
 
 Flanagin v. State, 25 Ark. 92 ; Dennis compare Miles v. United States, 103 
 
 Crittenden, 42 N. Y. 542. U. S. 304 ; s. c, 2 Grim. L. 
 
 « Peat's Case, 2 Lew. C. C. 288 ; 489 ; reversing, 2 Utah T. 19. 
 Wakefield's Case, Id. 279 ; Campbell 8 Pedley v. Wellesley, 3 Car. & P. 
 
 V. Tremlow, 1 Price, 81, 88, 90, 91. 558. 
 
 See also Divoll v. Leadbetter, 4 Pick. " Stein v. Bowman, 13 Pet. (U. S.) 
 
 (Mass.) 220. 209. See infra, §§ 164, 165. 
 
 f Wells V. Fletcher, 2 Car. & P. 12 ; i» See infra, § 166. 
 Wells V. Fisher, 1 M. & Rob. 99, and 
 
§ 160.] KULES AS TO HUSBAND AND WIPE. 275 
 
 In such an event, the Supreme Court of the United States 
 has said, "It is true the husband was dead, but this does not 
 ■weaken the principle. Indeed, it would seem rather to 
 increase than lessen the force of the rule." ^ 
 
 § 160. Limits and Exceptions to the Rule. — The rule we 
 are examining, like all other general regulations of the com- 
 mon law, is subject to numerous exceptions, so called, most 
 of them, however, being more seeming than real. Bearing 
 in mind the object of the rule, — to secure the confidence of 
 private life and prevent discords in families, — and that it 
 only forbade the parties to the marriage to enter the witness- 
 box for the purpose of testifying for or against one another, 
 we readily see that in cases where one of the parties to the 
 marriage was a competent witness at common law, the other 
 was also competent. And so it was held.^ Again, where 
 the wife had no interest in the suit, the husband was ad- 
 mitted as a witness, and vice versa? Thus, where a complaint 
 shows the cause of action to be wholly in the husband, he is 
 a competent witness in his own behalf, although the wife 
 may be joined as a plaintiff.* And in some cases one spouse 
 was deemed competent where the other was not made a 
 party, and for that reason.^ In one case found, the admission 
 of the husband's testimony, against the objection of the wife, 
 was held not to be error, because "he testified to nothing 
 untrue or prejudicial to her interest."^ The fact that his 
 testimony tends to increase a fund held in trust for his wife, 
 will not exclude him, his interest being contingent.'^ 
 
 1 McLean, J., in Stein v. Bowman, But the wife may be competent where 
 supra. See also Patton v. Wilson, the husband is not, e.g., where he has 
 2 Lea (Tenn.) 101. Eren where the been convicted of felony or perjury, 
 cause of action accrued to the wife State v. Anthony, 1 McCord (S. C.) 
 before marriage, the husband was re- 285. 
 
 |ected as a witness. Collins o. Mack, ^ Meni v. Eathbone, 21 Ind. 454 ; 
 
 31 Ark. 684. Contra, Perry v. Whit- Howell v. Zerbee, 26 Ind. 214 ; Mitch- 
 
 ney, 30 Vt. 390. Nor could the wife ell u. Clagett, 9 Md. 42 ; Hall i . 
 
 testify in such cases, the husband Murphy, 14 Tex. 637 ; Eobinson u. 
 
 being a party. Smith v. Boston &c. Hutchinson, 31 Vt. 443. 
 
 E. E., 44 N. H. 334 ; Donnelly v. Smith, * Lockwood v. Joab, 27 Ind. 423. 
 
 7 E. 1. 12. Marriages between slaves, ^ Deck v. Johnson, 30 Barb. (N. Y.) 
 
 having been declared lawful in Ala- 283 ; Leavitt v. Bangor, 41 Me. 458 ; 
 
 bama, are within the rule. Ala. Pamph. Bonett v. Stowell, 37 Vt. 258. 
 
 Acts 175, Ord. No. 23, § 1 ; Hampton « Wade ii. Powell, 31 Ga. 1. See 
 
 V. State, 45 Ala. 82. also E. &. B. E. E. Co. u. Lincoln, 29 ■ 
 
 2 Wixson o. People, 5 Park. (N. Y.) Vt. 206. 
 
 119; Seigling !). Main, 1 McMull. (S. ' Dyer u. Homer, 22 Pick. (Mass.) 
 C.) 252; Abbott v. Clark, 19 Vt. 444. 253. See also Sneckner v. Taylor, 1 
 
276 
 
 COMPETENCY. 
 
 [chap. X. 
 
 Again, the wife can be a witness to testify as to the 
 contents of a lost trunk of her husband;^ and so may she in 
 a joint suit to recover her separate property;^ or when jointly 
 defending in respect of such property.^ Some cases admit 
 the witness because it appears that he or she, as the case 
 maj"- be, has no interest in the event, thus putting as the 
 ground of incompetency interest only.* Wliere the testi- 
 mony related solely to a defence peculiar to the witness, it 
 was admitted, and the witness allowed to testify in his or her 
 own behalf only, and not in behalf of the other spouse.^ 
 
 § 161. Collateral Proceedings. — While it was an inflexible 
 rule that neither husband nor wife should be permitted to 
 testify against each other, where either was directly and 
 immediately interested in the event of the action or proceed- 
 ing, whether civil or criminal, yet, in collateral proceedings 
 
 Eedf. (K Y.) 427 ; PeifEer v. Lytle, 
 58 Pa. St. 386 ; Rose v. Blair, 1 Meigs 
 (Tenn.) 525. 
 
 1 Illinois &c. E. E. Co. <-■. Taylor, 
 24 111. 323; Same d. Copeland, Id. 
 .332; Sassen v. Clark, 37 Ga. 242; 
 McGill V. Eowand, 3 Pa. St. 451. 
 
 2 Gee V. Lewis, 20 Ind. 149. 
 
 " Palmer v. Henderson, 20 Ind. 297. 
 
 * Jackson v. Bard, 4 Johns. (N. Y.) 
 230 ; Town v. Needham, 3 Paige {N. 
 Y.) 546. 
 
 SRlenk o. Knoble, 37 Ark. 298; 
 Call V. Byram, 37 Ind. 499. 
 
 For further decisions in several of 
 the States illustrating these principles 
 and showing various statutory depart- 
 ures from the common-law rule, see 
 the cases listed below in the .alpha- 
 betic order of the States. 
 
 Illinois. Northern Line Packet Co. 
 V. Shearer, 61 111. 263; McNail v. 
 Zeigler, 68 111. 224; Pigg v. Carroll, 
 89 111. 205 ; Marshall v. Peck, 91 111. 
 187; Cordery i;. Hughes, 6 111. App. 
 401; Pyle v. Oustatt, 92 111. 209. 
 Indiana. McConnell v. Martin, 52 
 Ind. 434; Wood v. Bibbins, 58 Ind. 
 392 ; Scarry v. Eldridge, 63 Ind. 44 ; 
 Morgan v. Hyatt, 62 Ind. 560 ; Clouse 
 V. Elliott, 71 Ind. 112. Iowa. John- 
 son V. Johnson, 52 Iowa, 586. Kansas. 
 Ruth v. Ford, 9 Kan. 17; Furron v. 
 Chapin, 13 Kan. 107. Louisiana. 
 Boisse V. Dickson, 31 La. Ann. 741. 
 
 Massachusetts. Packard o. Eeynolds, 
 
 100 Mass. 153; Bruce o. Matthews, 
 
 101 Id. 64; Morony v. O'Laughlin, 
 
 102 Id. 184; Trafton v. Hawes, Id. 
 533 ; Baxter v. Boston &c. R. E. Co., 
 Id. 383. Ifissouri. Funk v. Dillon, 
 21 Mo. 294 ; Fugate ;;. Pierce, 49 Mo. 
 441 ; Buck v. Ashbrook, 51 Mo. 539 ; 
 Evers v. Life Assoc, of America, 59 
 Mo. 429 ; Cooper v. Ord, 60 Mo. 420 ; 
 Quade v. Fisher, 63 Mo. 325 ; Wilcox 
 V. Todd, 64 Mo. 388 ; StefEen v. Bauer, 
 70 Mo. 399 ; Wood u. Broadley, 76 
 Mo. 23. New York. Maverick v. 
 Eighth Ave. R. R. Co., 36 N. Y. 378; 
 Babbott V. Thomas, 31 Barb. 277; 
 Sehaffner v. Reuter, 37 Id. 44; Hooper 
 V. Hooper, 48 Id. 292; Draper c. 
 Heusingsen, 16 How. Pr. 281 ; Shoe- 
 maker V. McKee, 19 Id. 86; Matteson 
 V. N. Y. &c. R. R. Co., 62 Barb. 364 ; 
 Southwick V. Southwick, 49 N. Y. 
 510; Wehrkamp v. Willett, 4 Abb. 
 App. Dec. 548 ; People ex rel. Commr's 
 u. Barthol, 24 Hun, 272. Ohio. Nuser 
 V. Beach, 15 Ohio St. 172 ; Robinson 
 V. Chadwick, 22 Id. 527 ; Westerman 
 V. Westerman, 25 Id. 500. Pennsyl- 
 vania. Musser v. Gardner, 66 Pa. St. 
 242. Tennessee. Orr v. Cox, 3 Lea 
 (Tenn.) 617. Texas. Cameron t>. Fay, 
 55 Tex. 58. Virginia. Frank v. Lilien- 
 feld,33 Gratt. 377; Hayes v. Va. Mut. 
 Protection Assoc, 76 Va. 225. 
 
§ 162.] 
 
 EULES AS TO HUSBAND AND WIFE. 
 
 277 
 
 not immediately affecting their mutual interest, their testi- 
 mony was receivable, even though the testimony of one 
 tended to contradict the other, or might subject the other 
 to a legal demand, or even to a criminal accusation ;i but it 
 is the privilege of the witness to decline to testify to such 
 facts as will criminate the other party to the marriage.^ 
 
 § 162. Cases of Agency. — (1) In general. Perhaps the 
 most important exception to the rule in question is, that it 
 will not be applied to cases where the wife has acted for the 
 husband in his business, and by his authority and consent ; 
 he thereby adopts her acts, and will be bound by any admis- 
 
 1 Commonwealth v. Eeid, 8 Phil. 
 (Pa.) 385 ; s. c, 1 Pa. Leg. Gaz. Eep. 
 182, where the cases are fully dis- 
 cussed. See also B. N. P. 287 ; Clubb 
 0. State, 14 Tex. App. 192. 
 
 2 Ihid. In a comparatively early 
 English case the rule was laid down, 
 that a husband or wife ought not to 
 be permitted to give any evidence 
 that may even tend to criminate the 
 other {King v. Inhab. of Cliviger, 2 
 T. R. 263). This rule was much 
 discussed in two subsequent cases in 
 the Court of King's Bench (King v. 
 Inhab. of All Saints, 6 Man. & Sel. 
 194, and King v. Inhab. of Bathwick, 
 2 Barn. & Ad. G39, 647), the court, 
 after much argument, deciding that 
 the rule must be restricted. Lord 
 Ellenborough remarked that the rule 
 was laid down " somewhat too largely." 
 In King v. Bathwick, where, the ques- 
 tion being a, female pauper's settle- 
 ment, a man had been called to prove 
 his marriage to her, another woman 
 was held a competent witness to 
 prove her own previous marriage 
 with the same man; for although, if 
 the testimony of both witnesses were 
 true, the husband had been guilty of 
 bigamy, yet neither the testimony 
 given, nor any decision of the trial 
 court founded on that testimony, 
 could thereafter be received in evi- 
 dence to support an indictment 
 against him for that crime ; it being 
 altogether res inter alios acta, and 
 neither the husband nor the wife 
 having any interest in the decision 
 of the question. In the opinion, the 
 
 court said that the rule laid down in 
 Iving V. Cliviger "is undoubtedly 
 true in the case of a direct charge 
 and proceeding against him for any 
 offence," but denied its correctness 
 when applied to collateral matters. 
 See also Pitch v. Hill, 11 Mass. 286; 
 Baring I'. Reeder, 1 Hen. & M. (Va.) 
 154, which decisions are commented 
 on by Chief Justice Parker, of Mas- 
 sachusetts, as follows : "They establish 
 this principle, that the wife may be a 
 witness to excuse a party sued for a 
 supposed liability, although the effect 
 of her testimony is to charge her 
 husband upon the same debt, in an 
 action afterwards to be brought 
 against him. And the reason is, 
 that the verdict in the action in 
 which she testifies, cannot be used 
 in the action against her husband ; 
 so that, although her testimony goes 
 to show that he is chargeable, yet he 
 cannot he prejudiced by it. And it 
 may be observed, that, in these very 
 cases, the husband himself would be 
 a competent witness, if he were will- 
 ing to testify, for his evidence would 
 be a confession against himself." 
 Griffin K. Brown, 2 Pick. (Mass.) 308. 
 Sec also Vowles v. Young, 13 Ves. 
 144; Williams v. Johnson, 1 Str. 504; 
 and Henman !•. Dickinson, 5 Bing. 18.3, 
 where, the suit being by indorsee 
 against acceptor, and the defence, 
 fraudulent alteration by drawer after 
 acceptance, the wife of the drawer 
 was allowed to prove such alteration. 
 For the application of this rule in 
 criminal cases, see infra, § 170. 
 
278 COMPETENCY. [CHAP. X. 
 
 sion or acknowleclgment made by her respecting that busi- 
 ness, and her testimony will be admissible touching anything 
 she did as his agent, within the scope of her delegated 
 authority.^ 
 
 (2) Wife competent. The English rule was narrower than 
 the one just stated : the admissions and declarations of the 
 wife were admitted, and so far she was treated like any other 
 agent; but she could not be called as a witness, while an 
 ordinary agent could be.^ This distinction does not seem 
 to have met with favor in this country, except, perhaps, in 
 Arkansas.^ The American rule seems to be that a wife is 
 not a competent witness for her husband, except as to matters 
 in which she has acted as his agent ; the question whether 
 she so acted in a given transaction (though she is probably 
 a competent witness upon that question) is to be determined 
 by the court before she is admitted to testify in chief ; and 
 the proof of her agency should generally be elicited by direct 
 interrogatories on that subject.* 
 
 During the husband's absence from home, the wife acts as 
 his agent in the care and protection of his property within 
 the home limits, without any express direction or agreement, 
 
 1 "Wheeler & Wilson Mfg. Co. v. testify for or against each other in civil 
 Tinsley, 75 Mo. 458; Degenhart v. cases: not even when either one acts 
 Schmidt, 7 Mo. App. 117 ; Lunay v. as agent for the other. Watkins v. 
 Vantyne,40Vt. 501; Birdsall U.Dunn, Turner, 34 Ark. 663. Compare Mag- 
 16 Wis. 235; Chunot o. Larson, 48 ness v. Walker, 26 Ark. 470. 
 
 AVis. 536. There are many cases * Chunot v. Larson, 43 Wis. 536 ; 
 asserting the admissibility of evidence Burke n. Savage, 13 Allen (Mass.) 
 of the admissions of the wife, made 408, where she was held a competent 
 out of court, as to her agency, and witness to prove her agency, as well 
 her acts done under it ; but our pur- as her acts as agent, 
 pose here is to ascert&in her compe- In Illinois, she is placed on the 
 tency as a witness testi/i/ing on the trial footing of a feme sole, so far as re- 
 respecting such acts, and the factum spects her competency to testify con- 
 of her agency. See Emerson v. Blon- cerning transactions in which she 
 din, 1 Esp. 142; 1 Str. 527; B. N. V. acted as her husband's agent. Poppers 
 287 ; Anderson v. Saunderson, Holt, v. Miller, 14 111. App. 87. 
 N. P. 591 ; White v. Cuyler, 6 T. R. In Indiana, it is held that communi- 
 176; Clifford f. Burton, 1 Bing. 199; cations between husband and wife 
 Tenner U.Lewis, 10 Johns. (N.Y.) 38; relating to an agency conferred by 
 Eiley D. Suydam, 4 Barb. (N. Y.) 222; him upon her are not confidential 
 Williamson «, Morton, 2 Md. Ch. 94; communications nor inadmissible in 
 Hughes V. Stokes, 1 Hayw. (N. C.) evidence. Schmied r. Frank, 86 Ind. 
 372 ; Curtis v. Ingham; 2 Vt. 289. 250. But the contrary doctrine is 
 
 2 1 Phil. Ev. *93. maintained in Tennessee. Washington 
 
 3 A late case in that State decides v. Bedford, 10 Lea, 243. 
 that neither husband nor wife can 
 
§ 162.] EULES AS TO HUSBAND AND WIFE. 279 
 
 and is competent to testify as to what she does in that behalf 
 in any action by or against him.^ If she keeps his accounts 
 for him, she may testify that she made the entries by his 
 direction and in his presence.^ Being authorized by him to 
 take care of his property and to notify the insurers in case 
 of loss, she may testify, in an action on the policy, as to facts 
 connected with the loss, and the insurers cannot show by her 
 that he did not hold the legal title to the lahd, such fact not 
 being within the scope of her agency.^ Where he is sued for 
 property pledged with her for money loaned, she may testify 
 as to what contract she made with the plaintiff, and that she 
 acted as her husband's agent in making it.* If her husband 
 gives her a note to collect, she may prove her acts within the 
 scope of her agency, in her husband's suit against the 
 estate of the deceased maker.^ Where, through his acts 
 of cruelty, she is compelled to leave his house, she may 
 testify against him, when sued for necessaries furnished 
 to her, aud prove such acts of cruelty ; and, in such a case, 
 it is immaterial whether his liability be placed on the ground 
 of her implied agency to contract for the necessaries, or on 
 that of his marital duty.® 
 
 (3) Wife incompetent. Ordinarily there must be proof of 
 authority conferred, or ratification by the husband, or the 
 wife will not be a competent witness to establish that a con- 
 tract entered into by her with a third person, is the contract 
 of her husband made by her as his agent. '^ Nor does the rule 
 generally apply when the husband is sued for a personal tort, 
 such as malicious prosecution, even though she acted as his 
 agent.^ 
 
 Again, where the husband is sued for the price of goods 
 
 1 Fisher u. Comvay, 21 Kan. 18; the husband is temporarily absent 
 Town f. Larapshire, 37 Vt. 52. from home for a day, leaving his wife 
 
 2 Littlefield v. Rice, 10 Mete. (Mass.) without any special charge or agency, 
 287. except " such as married women living 
 
 2 O'Connor v. Hartford Fire Ins. and keeping house with their hus- 
 
 Co., 31 Wis. 161. bands would have in such cases," she 
 
 * Sumner v. Cooke, 51 Ala. 521. is not his agent so as to be compe- 
 
 ^ Engmann v. Imrael, 59 Wis. 249. tent to testify for him as to matters 
 
 ^ Bach V. Parmely, 35 Wis. 238. transpiring during his absence. Bates 
 
 ' Orcutt V. Cooke, 37 Vt. 515; Meek v. Cilley, 47 Vt. 1. With all due re- 
 
 V. Pierce, 19 Wis. 300. spect, the writer submits that, as a 
 
 " Bliss V. Franklin, 13 Allen (Mass.) general proposition, this is not sound 
 
 244. law. 
 
 In Vermont it is held, that where 
 
280 COMPETENCY. [CHAP. X. 
 
 purchased by liim in the wife's presence, she assisting in 
 their selection, she is not competent, on the ground of 
 agency, to prove that the goods were furnished on the credit 
 of a third person in payment of the latter's indebtedness to 
 the husband.^ So, it is held, that merely sending the wife 
 to collect payment for goods sold by the husband does not 
 make her his agent witlain the rule.^ And where a wife, 
 being requested by her husband to call into their house the 
 indorser of a note held by the husband, asked the indorser 
 "whether he was going to pay the note," she was held not 
 to be the husband's agent in such a sense as to be competent 
 to testify to admissions made to her by the indorser which 
 would render him liable on the note without presentment, 
 and demand of the maker ,^ 
 
 (4) Husband as agent of wife. The same principle by the ap- 
 plication of which the wife is permitted to testify as to her acts 
 done as the agent of her husband, also admits the husband as a 
 witness for his wife, as to acts done by him as her authorized 
 agent.^ Thus, he may testify as to what disposition he has 
 made of money belonging to her separate estate.^ He may 
 show what he did in her absence as well as what he did 
 in her presence ;^ and he may also prove the factum of his 
 agency and its extent J But, as in the wife's case, an agency 
 must appear ; his action without her knowledge or consent 
 will not constitute him her agent ;^ nor will the fact that he 
 went with her when she made the bargain, and afterwards, 
 "about the matter of pay," without more, have that effect.® 
 
 § 163. Effect of Consent, or Release of Interest. — (1) Consent. 
 Upon the effect of the husband's consent that the wife be 
 admitted as a witness against him, the authorities are not in 
 harmony. Some of them take the ground that it is only the 
 interest of the husband which excludes her, and inasmuch 
 as an interested witness is competent to testify against his 
 interest, provided he consents to do so,^° the wife may be 
 
 1 Trepp V. Barker, 78 111. 140. f Owen v. Cawley, 36 Barb. (N. Y.) 
 
 2 Robertson v. Brost, 83 111. 116. 52. See also Arndt i/. Harshaw, 53 
 s Hale V. Danforth, 40 Wis. 382. Wis. 269. 
 
 * Hobby u. Wisconsin Bank, 17 Wis. ' Case v. Colter, 66 Ind. 336. 
 
 167 ; Haerle v. Kreilin, 65 Mo. 202 ; s Waggonseller v. Eexf ord, 2 111. 
 
 Cliesley v. Chesley, 54 Mo. 347. App. 455. 
 
 6 Robison v. Robison, 44 Ala. 227. l» Supra, § 50. 
 
 " Menk v. Steinfert, 39 Wis. 370. 
 
§ 163.] EULES AS TO HUSBAND AND WIFE. 281 
 
 properly admitted to testify against her husband's interest, 
 he consenting that she do so.^ 
 
 But the better opinion seems to favor her exclusion as a 
 witness against her husband, even though he consents ; for 
 the reason that the interest of the husband in preserving the 
 confidence placed in her is not the only ground of the rule. 
 The preservation of domestic tranquillity, and the diminution 
 of temptations to commit perjury, are objects in which society 
 at large is interested, and to admit her as a witness under 
 such circumstance would be opposed to a sound public policy.^ 
 
 (2) Release of interest. Clinging to the mistaken idea 
 that individual interest, and not public policy, afforded the 
 ground of the rule, several highly respectable courts have 
 held that a conveyance by husband and wife to the wife,^ or 
 by the husband to the wife,* or by both to their children,^ of 
 all their interest in the issue on trial, rendered them, or the 
 one making such transfer, competent to testify in the cause, 
 notwithstanding the existence of the marital relation. So, also, 
 it has been decided, and with a better reason, that the wife of 
 a sole executor of a will, who has renounced, is competent to 
 prove its execution as a will of real estate ; ^ that the wife of 
 one of several co-defendants in foreclosure, who suffers the 
 bill to be taken pro confesso as against her, thereby becomes 
 competent for the other defendants ; ^ that where the payee 
 of a note indorses it to a third person, taking a release from 
 liability thereon, his wife becomes competent for the holder;* 
 and that a wife, in the absence of her husband, who has been 
 released from liability in the suit, is a competent witness 
 therein.^ But it is difficult to perceive how these adjudica- 
 
 1 Pedley v. Wellesley, 3 Car. &. P. " Weems v. Weems, 19 Md. 334. 
 
 558. ^ Meredith v. Hughes, supra. Con- 
 
 ^ See Barker v. Dixey, Cas. t. Hardw. tra, Locke v. Noland, 11 Ala. 249. 
 
 264; Sedgwick v. Watkins, 1 Ves. Jr. " Daniel v. Proctor, 1 Dev. (N. C.) 
 
 49 ; Eandall's Case, 5 City' H. Rec. L. 428. But compare Huie v. O'Con- 
 
 (N. y.) 141, 153, 154; Davis v. Din- nell, 2 Jones (N. C.) L. 455. 
 
 woody, 4 T. E. 679. ' Hadley v. Chapin, 11 Paige (N. 
 
 In California it is held, that if a Y. ) 245. 
 
 wife examines her husband as a wit- * Bisbing ;;. Graham, 14 Pa. St. 14; 
 
 ness in her own behalf, she thereby Armstrong v. Noble, 55 Vt. 428. 
 
 waives her right to object to his ' Peaceable v. Keep, 1 Yeates (Pa.) 
 
 examination by the adverse party, 576. See also Borneman v. Sidlinger, 
 
 upon any of the issues in the action. 21 Me. 185 ; Thomas u. Catheral, 5 
 
 Steinberg v. Meany, 53 Cal. 425. Gill & J. (Md.) 23. 
 
 ■' Meredith y. Hughes, 28 Ga. 571. 
 
282 COMPETENCY. [cHAP. X. 
 
 tions can be upheld under the well-settled construction of the 
 common-law rule, i.e., that its foundation is in public policy, 
 and not private, individual interest. 
 
 § 164. Surviving Husband. — While, as we have seen, the 
 dissolution of the marriage relation by the death of one of 
 the parties has not the effect of removing the incompetency 
 of the other to disclose matters protected by the rule exclud- 
 ing husband and wife as witnesses for or against each other ;i 
 yet one having died, the other is competent as to anj'thing 
 the knowledge of which was not obtained through the 
 privacy of the marriage relation.^ But the husband cannot 
 testify to conversations between himself and his deceased 
 wife ; ^ or against the interests of her estate.* 
 
 § 165. 'Widow. — So, also, the widow is a competent wit- 
 ness as to matters in which her deceased husband was inter- 
 ested, unless she acquired her knowledge of the facts through 
 confidential communications from him ; ^ in which latter case 
 she is incompetent.^ She may testify as to a conversation in 
 her presence, or overheard by her, between her husband and a 
 third person.'' She may prove her husband's acts, not affect- 
 ing his character,^ or such of his business transactions as 
 were observed by her during his life, or came to her knowl- 
 edge through sources other than communications by him to 
 her.3 
 
 ^ Supra, §16i. 1 Har. & J. (Md.) 478. See also, gen- 
 
 ^Wooleyv. Turner, 13 Ind. 253; erally,Ayresi'. Ayres, 11 Gray (Mass.) 
 
 Haugh V. Blythe, 20 Ind. 24 ; Elswick 130 ; William & Mary College v. 
 
 V. Com., 13 Bush (Ky.) 155; English Powell, 12 Gratt. (Va.) 372. 
 
 V. Cropper, 8 Id. 292. ^ Ryan v. FoUansbee, 47 N. H. 100 ; 
 
 ^ Dye V. Davis, 65 Ind. 474. Jackson c. Barron, 37 Id. 494 ; Cor- 
 
 * Succession of AVade, 21 La. Ann. nell v. Vanartsdalen, 4 Pa. St. 364. 
 
 343. But see Eeilly v. Succession of ^ Lingo v. State, 29 Ga. 470 ; Gray 
 
 Eeilly, 28 Id. 669; Ames' Succession, v. Cole, 5 Harr. (Del.) 418. 
 
 33 Id. 1317, which two cases seem to ^ Pratt v. Delaware, 17 Iowa, 307; 
 
 lean the other way. See also Wood StulilmuUer v. Ewing, 39 Miss. 447; 
 
 1. Broillar, 40 Iowa, 591. Mercer ti. Patterson, 41 Ind. 440; 
 
 In New York, it was held that a Griffin v. Smith, 45 Ind. 366; Floyd 
 
 tenant by the curtesy was compe- v. Miller, 61 Ind. 224. 
 
 tent for the plaintiff in an action of ' M'Guire v. Maloney, 1 B. Hon. 
 
 ejectment by the heir at law. Jack- (Ky.) 224. S. P., Stober v. McCarter, 
 
 son V. Brooks, 8 Wend. (N. Y.) 426. 4 Ohio St. 513; White v. Perry, 14 
 
 In Maryland, that a second husband, W. Va. 66. 
 
 surviving his wife, who was adminis- " Spivey r. Platon, 29 Ark. 003 ; 
 
 tratrix of the first husband, was com- Powell r. Powell (III.), 2 N. E. Rep. 
 
 petentforhersurety inanactionon the 162; Short v. Tinsley, 1 Mete. (Ky.) 
 
 administration bond. WallisK.Britton, 397; Stein c. Weidman, 20 Mo. 17; 
 
§ 165.] 
 
 KTJLES AS TO HUSBAND AND WIFE. 
 
 283 
 
 Thus, she may testify as to the execution, loss, and con- 
 tents of a bond given to her husband ; ^ or that goods were 
 received by the executor for which he has not accounted ; ^ 
 or that a' deed of conveyance in which she joined with her 
 husband was only intended to operate as a mortgage ; ^ or 
 that such a deed, so executed by her, was not fraudulent 
 under the statute of 13 Elizabeth ; * or that a parol gift, 
 claimed to have been made by her husband, was, in fact, a 
 loan ; ^ or that a pretended purchase from him was never 
 consummated.^ She is also a competent witness in an action 
 against her husband's administrator, for her board.'' She is 
 competent for the executors when she has no interest in the 
 result of the case.^ 
 
 Where the litigation concerns the real estate of her de- 
 ceased husband, she is not a competent witness where the 
 result can either increase or reduce her dower ; ^ but if, in 
 such a case, she is not entitled to dower,!" qj. \^^^ released her 
 right,!! or received her dower by consent of the heirs,!^ she is 
 competent. 
 
 Gaskill V. King, 12 Ired. (N. C.) L. 
 211 ; Robb's Appeal, 98 Pa. St. 501 ; 
 White V. Perry, supra. Compare 
 Barker v. McAuley, 4 Heisk. (Tenn.) 
 424. 
 
 1 Carpenter v. Dame, 10 Ind. 125. 
 
 2 Sherwood v. Hill, 25 Mo. .391. 
 
 8 Price .;. Joyner, 3 Hawks (N. C.) 
 418. Contra, Eckford v. Dekay, 6 
 Paige (N. Y.) 565. 
 
 * Chambers v. Spencer, 5 Watts 
 (Pa.) 404. 
 
 6 Hay!;.Hay,3Rich.(S.C.)E(i.384. 
 
 6 Keys V. Baldwin, 33 Tex. 666. 
 
 ' Romans ?;. Hay, 12 Iowa, 270. 
 
 8 Gebhart v. Shindlc, 15 S. & R. 
 (Pa.) 2.37. 
 
 ^ Wade V. Johnson, 5 Humph. 
 (T^nn.) 117. S. P., Chaney v. Moore, 
 1 Coldw. (Tenn.) 48. But see Mc- 
 CuUough V. McCuUough, 31 Mo. 220. 
 
 i» Wallingford v. Piske, 24 Me. 386. 
 
 "Dobson u. Racey, 8 N. Y. 216; 
 Gayle v. Morrissey, 5 Sneed (Tenn.) 
 445. 
 
 12 Morris v. Harris, 9 Gill (Md.) 19. 
 
 Eor further decisions illustrating 
 the status of the widow as a witness 
 in actions wherein the estate of her 
 
 husband is involred, generally, see 
 Lay V. Lawson, 23 Ala. 377 ; Seabrook 
 V. Brady, 47 Ga. 650 ; Peacock v. Al- 
 bin, 39 Ind. 25 ; Pitzgerald v. Cox, Id. 
 84 ; Spaulding v. Conway, 51 Mo. 51. 
 In actions on bills and notes, see 
 Saunders v. Hendrix, 5 Ala. 224 ; 
 Robinson v. Talmadge, 97 Mass. 171 ; 
 Payne u. Devinal, 11 Sm. & M. (Miss.) 
 400. Actions for price of goods sold, 
 see Dexter v. Booth, 2 Allen (Mass.) 
 559. In will contests, see Talbot v. 
 Talbot, 23 N. Y. 17 ; Hester v. Hester, 
 4 Dev. (N. C.) L. 228; Brewer i: Fer- 
 guson, 11 Humph. (Tenn.) 565. Suits 
 to set aside conveyances, see Kisling v. 
 Shaw, 33 Cal. 425; Sanborn i-. Lang, 
 41 Md. 107 ; Witthaus v. Schack, 24 
 Hun, 328; Bell v. Coiel, 2 Hill (S. C.) 
 Ch. 108. Suits against husband's 
 estate, see Powell v. Powell, 10 Ala. 
 900; Jackson v. Delancy, 4 Cow. (N. 
 Y.) 427. Suits in favor of husband's 
 estate, see Johnson v. Worthy, 17 Ga. 
 420 ; Lockwood v. Mills, 39 111. 602 ; 
 Deniston v. Hoagland, 67 111. 265; 
 Adams v. Adams, 23 Ind. 50 ; Felch 
 V. Hooper, 20 Me. 159; Walker u. 
 Sanborn, 46 Jle. 470 ; Megary v. Fon- 
 
284 COMPETENCY. [CHAP. X. 
 
 § 166. Divorced Spouse. — Nor will the dissolution of the 
 marriage relation by judicial decree of divorce or nullity of 
 marriage restrain the operation of the rule we are examining. 
 As was well said by Lord Alvanley, "It never shall be 
 endured that the confidence, which the law has created 
 while the parties remained in the most intimate of all rela- 
 tions, shall be broken whenever, by the misconduct of one 
 party, the relation has been dissolved." ^ Thus, a wife who 
 has been divorced from her husband continues to be incom- 
 petent to testify against him in respect to transactions which 
 took place prior to the divorce and during coverture ; ^ or in 
 his favor, in an action by him against a third person for 
 seducing her.^ She cannot testify to threats made to her by 
 her husband, to compel her signature to a conveyance alleged 
 to be void for duress.* Nor is she competent when the 
 proceeding is instituted to set aside the divorce between 
 herself and her deceased husband.^ 
 
 It has been held, however, that she may be permitted, as a 
 witness against the former husband, to prove a communi- 
 cation not confidential, but which it must have been intended 
 by him at the time, that she should make known to the 
 public.^ 
 
 § 167. Cases of Personal Injuries. — Where the ground of 
 action is a personal injury sustained by the wife at the 
 hands of a third person, the authorities are not in entire 
 harmony as to the husband's competency to testify. In 
 Georgia, the wife having been assaulted, the husband was 
 not permitted to testify that she delayed to complain to 
 
 tis, 5 Sandf. (N. Y.) 376. Ejectment App. Ixxxvii (xci) ; Aveson v. Lord 
 
 suits, see Brindle v. MTh-aine, 10 S. Kinnaird, 6 East, 192; Doker e;. Has- 
 
 & R. (Pa.) 282; Thomas v. Maddan, ler, Ry. & M. 198. 
 
 50 Pa. St. 261. Foreclosure suits, see ^ Barnes v. Camack, 1 Barb. (X. Y.) 
 
 Mester v. Hauser, 94 111. 433 ; Day v. 392 ; Cook k. Grange, 18 Ohio, 520 ; 
 
 Seely, 17 Vt. 542. Partition suits, see Perry v. Randall, 83 Ind. 143. 
 
 Wiseman v. Wiseman, 73 Ind. 112. » Rea o. Tueker, 51 III. 110. But 
 
 Suits a.ga,insthusband'ssurvlvlngpartner, see infra, § 169. 
 
 see Jack v. Ilussey, 8 Ind. 180 ; Allen ■* Anderson v. Anderson, 9 Kan. 112. 
 
 V. Blanchard, 9 Cow. (N. Y.) 631. ^ Fidelity Ins. Co.'s Appeal, 93 Pa. 
 
 Trover suits, see Tatum v. Manning, 9 St. 242 ; Peterson v. Peterson, 13 Phil. 
 
 Ala. 144; Baxter v. Knowles, 12 Allen (Pa.) 82. 
 
 (Mass.) 114. Suits for dower, or dls- ^ Crook v. Henry, 25 Wis. 509. See 
 
 irlbutlve share, see Shaffer v. Richard- also Storms v. Storms, 3 Bush (Ky.) 
 
 son, 27 Ind. 122; Keator «. Dimmick, 77, as to the competency of a divorced 
 
 46 Barb. (N. Y.) 158. husband. 
 1 Moru-oe v. Twistleton, Peake, Ev. 
 
§ 168.] RULES AS TO HUSBAND AND WIFE. 285 
 
 him.^ In "Wisconsin, when both sue for injuries to the 
 person of the wife, caused by the defendant's negligence, the 
 husband is the real party in interest, and may be examined 
 as a witness for plaintiffs, whatever may be the rule as to 
 actions in which he is only a nominal party ; ^ and the wife 
 is also competent in such cases tried in the United States 
 circuit court sitting in that State.^ The rule was the same 
 in Massachusetts, under chapter 188, of the act of 1856.* 
 And is the same in Vermont.^ In New Hampshire, where the 
 husband died after the injury to the wife, but before suit 
 brought, the wife was held a competent witness.^ And in 
 Vermont, where the wife sued a liquor-dealer, under the 
 " civil damage act," for injuries sustained by reason of the 
 intoxication of her husband, the latter was held a competent 
 witness for the plaintiff.'^ 
 
 § 168. Actions for Divorce or to annul the Marriage. — The 
 action being for divorce, the husband has been held com- 
 petent to prove the wife's desertion of him.^ So, also, the 
 wife being complainant, she was allowed to testify as to her 
 husband's habits of intoxication and general treatment of 
 her.^ But the great weight of authority, especially where 
 the ground of divorce is adultery, excludes both parties from 
 testifying, except to sustain the validity of the marriage, to 
 dissolve which the action is brought.^" 
 
 1 Goodrum v. State, 60 Ga. 509. 32 Ohio St. 604. Actions for malprac- 
 See also Pillow v. Bushnell, 5 Barb, tice bij physician, see Womack v. Mc- 
 (N. Y.) 156. Quarry, 28 Ind, 103. 
 
 2 Kaime v. Omro Trustees, 49 Wis. ^ Stebbins v. Anthony, 5 Col. 348. 
 371 ; Barnes v. Martin, 15 Wis. 240. ^ Smith c. Smith, 77 Ind. 80 ; Bur- 
 
 3 Packet Co. u. Clough, 20 Wall (U. detter. Burdette,2 Mackey (D. C.) 469. 
 S.) 528. 1° Such is the law in Louisiana. Dil- 
 
 * Snell V. Westport, 9 Gray (Mass.) Ion v. Dillon, 32 La. Ann. 643; Daspit 
 
 321. But see Bunker v. Bennett, 103 v. Ehringer, Id. 1174. See also Shantz 
 
 Mass. 516, where a contrary rule is u. StoU, 34 Id. 1237 ; and, until recently, 
 
 laid down under a later statute. in New Jersey, Marsh v. Marsh, 2 
 
 5 Simkins v. Eddie, 56 Vt. 612. Stew. (N. J.) 396 ; Dougherty v. 
 
 ^ Winship v. Eniield, 42 N. H. 197. Dougherty, 5 Id. 32. See Pamph. 
 
 'Acts 1874, No. 27; Snow v. Car- Laws, 1881, pp, 16, 24, 69; and in New 
 
 penter, 49 Vt. 426. York,VanCorti-.VanCort,4Edw.621; 
 
 As to actions for malicious prosecn- Eivenburgh v. Rivenburgh, 47 Barb. 
 
 Hon, see Anderson v. Friend, 71 III. (N. Y.) 419; Hennessey i-. Hennessey, 
 
 475; Mitchinson v. Cross, 58 Id. 366. 58 How. (N. Y.) Pr. 304; Finn i-. Finn, 
 
 Actions for slander of wife, se^ Haw- 12Hun(N. Y.) 339; Lincoln r. Lincoln, 
 
 ver V. Hawver, 78 111. 412; Mousler BRobt. (N. Y.)525. And see Anable r. 
 
 V. Harding, 33 Ind. 176; Bennifield v. Anable, 24 How. (N. Y.) Pr. 92. The 
 
 Hypres,38 Ind. 498; Duval i;. Davey, husband may prove his wife's impo- 
 
286 COMPETENCY. [CHAP. X. 
 
 Where the proceeding is a collateral one, e.g., where a 
 creditor of the husband sues to annul a judgment of separa- 
 tion of property between the husband and wife, the wife has 
 been held competent to testify.^ 
 
 § 169. Actions for Abduction, or Criminal Conversation. — • 
 (1) Abduction. It is held in Minnesota, that even in an 
 action by the husband against one who entices away the 
 wife, where tlie defence is his ill-treatment of her, the wife 
 cannot be a witness against her husband without his consent ; ^ 
 but the contrary was held in New York, in a proceeding to 
 regain the custody of the wife by the writ of habeas corpus,^ 
 and also in Pennsylvania, where her declarations immediately 
 before and at the time of her leaving him, respecting his ill- 
 treatment of her, were admitted in behalf of the defendant 
 charged with enticing her away.* 
 
 (2) Criminal conversation. In these cases the majority 
 of the adjudications exclude the wife from testifying for 
 the plaintiff,^ unless a divorce has been obtained previous to 
 the trial, when she is competent as to facts occuring after the 
 divorce, in which her husband did not participate,^ or, 
 according to several highly respectable authorities, even 
 to prove the charge laid in the declaration.'^ 
 
 § 170. Criminal Actions. — (V) In general. We have already 
 seen that one of the exceptions to the common-law rule 
 excluding husband and wife as witnesses, is, that in collateral 
 proceedings they may testify to facts which even tend to 
 criminate each other.^ Where, however, a criminal prosecu- 
 tion is instituted against either spouse, the other is generally 
 excluded as a witness either for or against the one on trial, 
 
 tence, it seems. Barringer v. Barringer, ^ People v. Mercein, SPaige (N. Y.) 47. 
 
 69N. C. 179; but not her adultery. * Gilchrist i-. Bale, 8 Watts (Pa.). 355. 
 
 Cook V. Cook, 46 Ga. 308. In Peilnsyl- ^ Carpenter v. White, 46 Barb. (X. 
 
 vania, the parties to the divorce may Y.) 291 ; Hicks i,. Bradner, 2 Abb. 
 
 testify in their own favor, but cannot (N. Y.) App. Dec. 362; Mathews t. 
 
 be compelled to testify against them- Yerex, 48 Mich. 361. 
 
 selves. Bronson v. Bronson, 8 Phil. ^ Cross v. Kutledge, 81 111. 266. 
 
 (Pa.) 261. They are excluded in Tex- '^ Dickerman u. Graves, 6 Cush. 
 
 as. Cornish v. Cornish, 56 Tex. 564, (Mass.) 808; Eatolifl v. Wsles, 1 Hill 
 
 and admitted in Massachusetts, where (N. Y.) 63; "Wottrich v. Freeman, 71 
 
 tlie proceeding is for a. decree of N. Y. 601. 
 
 nullity under the statute. Gen. Stat. ' Supra, § 161 ; Commonwealth v. 
 
 ch. 107, § 4; Foss u. Foss, 12 Allen Eeid, 8 Phil. (Pa.) 385; s. c, 1 Leg. 
 
 (Mass.) 26. Gaz. Rep. 182, infra, subd. 3 and 5 
 
 1 Keller v. Vernon, 23 La. Ann. 164. of this section. But see State v. Wil- 
 
 2 Huot V. Wise, 27 Minn. 68. son, 2 Vr. (N. J.) 77. 
 
§170.]" RULES AS TO HUSBAND AND WIFE, 287 
 
 both on grounds of public policy, and in order to lessen 
 the temptation to perjury ;i and the so-called "enabling 
 acts " have not affected this rule, their operation being, for 
 the most part, confined to civil causes.^ 
 
 Where, however, the cohabitation is meretricious, and not 
 pursuant to a lawful marriage, the rule has no application,^ 
 and the fact that the alleged martial relation does not exist 
 may be proved by the witness on the voir dire.* But the 
 converse, it seems, is not true, i.e., where the prosecution has 
 shown an actual marriage between the defendant and one of 
 its female vfitnesses, prima facie valid and in good faith, upon 
 which the defendant might reasonably and honestly rely as 
 validi and which, upon the trial, he did so rely upon, it is not 
 competent for the prosecution to introduce opposing testi- 
 mony in order to establish the invalidity of the marriage, so 
 as to make the alleged wife a competent witness against the 
 defendant.^ 
 
 Various statutory modifications of the rule have been 
 made in many of the States ; thus, in Kansas the wife of the 
 accused is competent for the State if she voluntarily testifies 
 against her husband ; she cannot be compelled to do so.^ 
 But she may be so compelled in Maine J In New York, she 
 may testify in her husband's favor, but cannot be compelled 
 to be a witness against him. The husband, however, may 
 compel her testimony, and his failure to call her is properly 
 the subject of comment to the jury.^ In North Carolina and 
 Rhode Island, where the husband is the complainant against 
 one charged with assault, the wife has been held a competent 
 witness in the case, either to support the prosecution or to 
 
 1 Lucas V. State, 23 Conn. 18 ; Wil- 490 (but compare People v. Commrs. 
 liam V. State, 33 Ga. (Supp.) 85; of Charities, 9 Id. 212); Steen v. 
 Byrdi). State, 57 Miss. 243; Downing State, 20 Ohio St. 333; Sehultz v. 
 V. Rugar, 21 Wend. (N. Y.) 178; State, 32 Id. 276 ; Gibson w. Common- 
 Wilke V. People, 53 N. Y. 525 ; People wealth, 87 Pa. St. 253. 
 
 V. Briggs, 60 How. (N. Y.) Pr. 17; ^ Rjckerstriker d. State, 31 Ark. 207 ; 
 
 People V. Moore, 65 Id. 177 ; Taulman Mann v. State, 44 Tex. 642. 
 
 V. State, 37 Ind. 353. * State v. Brown, 28 La. Ann. 279. 
 
 2 Turpin v. State, 55 Md. 462; Com- ^ Dixon v. People, 18'Mich. 84. 
 monwealth v. Gannon, 97 Mass. 547 ; ^ State v. McCord, 8 Kan. 232. 
 Commonwealth v. Welch, Id. 593; 'Stat. 1873, ch. 137, §5; State t-. 
 State V. Armstrong, 4 Minn. 335 ; Black, 63 Me. 210. 
 
 State u. Moulton, 48 N. H. 485; « People v. Hovey, 92 N. Y. 554; 
 
 People V. Crandon, 17 Hun (N. Y.) s. c, 29 Hun, 382. 
 
288 COMPETENCY. [CHAP. X. 
 
 contradict her husband's testimony for the State.-^ In Texas, 
 husband and wife are competent for each other in criminal 
 cases, but not against each other ; ^ and if either be com- 
 petent against the person on trial, the other is also.^ 
 
 (2) Offences committed hy one against the other. Where 
 the offence on trial is a personal injury alleged to have been 
 committed by the husband upon the wife, or vice versa, the 
 injured spouse is a competent witness in favor of the one on 
 trial,* or on the part of the prosecution.^ Thus the husband 
 being indicted for assault and battery upon his wife,^ she is 
 competent to testify against him, where a lasting injury is 
 inflicted, or threatened to be inflicted, upon her,'' or where no 
 other person was present when the offence was committed ; ^ 
 and she is compellable to testifj'- in such cases.^ So, also, she 
 may testify against her husband on his trial for attempting 
 to poison her,^" or for using an instrument "with intent to 
 cause her to miscarry,!^ or on his trial for abandoning her.^^ 
 She cannot, however, testify against him on his trial for 
 conspiring to obtain a divorce, unless the indictment charges 
 the commission of personal violence upon her, or the inten- 
 tion to commit it ; ^^ or on his trial for suborning witnesses 
 to wrong her in a judicial proceeding.^* Nor can she be a 
 witness against him on his trial for the larceny of her prop- 
 erty,!^ QP foj. incest with her daughter by a former marriage.^^ 
 
 ^ State V. Parrot, 79 N. C. 615; or not as she may elect. Her husband 
 
 State V. Borden, 6 R. I. 495. cannot complain of the action of the 
 
 2 Griffin v. State, 32 Tex. 164 (where court in compelling her to give evi- 
 
 the right of the prosecution to cross- dence over his objection, 
 
 examine was denied) ; Creamer v. i" People ;;. Northrup, 50 Barb. (N. 
 
 State, 34 Tex. 173 (where such right Y.) 147. 
 
 was sustained). n State v. Dyer, 59 Mo. 303. 
 
 8 Baffin V. State, 11 Tex. App. 76. 12 State v. Brown, 67 N. C. 470. 
 
 * People V. Pitzpatrick, 5 Park. (N. Only to prove the fact of abandon- 
 
 Y.) Cr. 26. Compare Bihin v. Bihin, ment, however, not to prove the mar- 
 
 17 Abb. (N. Y.) Pr. 19. riage. 
 
 = People V. Carpenter, 9 Barb. (iST. i^ Commonwealth v. McEwen, 1 Pa. 
 
 Y.) 580. L. J. Rep. 140. 
 
 ^ United States v. Fitton, 4 Cranch, 1* People o. Carpenter, 9 Barb. (N. 
 
 C. C. 658 ; United States v. Smallwood, Y.) 580. 
 
 5 Id. 35 ; Turner v. State, 60 Miss. 351 ; i* Overton v. State, 43 Tex. 616. Nor 
 
 s. c, 45 Am. Rep. 412. can he testify against her on her trial 
 
 " State V. Hussey, Busb. (N. C.) L. for stealing liis goods. R. v. Brittle- 
 
 123 ; State v. Davidson, 77 N. C. 522. ton, L. R. 12 Q. B. D. 266 ; 32 W. R. 
 
 8 State V. Davis, 3 Brev. (S. C.) 3. 463. 
 
 ^ Turner v. State, supra. This case ^^ Compton v. State, 13 Tex. App. 
 
 decides that it is Aerpnuj'Zcje to testify 271; s. c, 44 Am. Rep. 703; overrul- 
 
§ 170.] EULES AS TO HUSBAND AND WIFE. 289 
 
 On the other hand, on her husband's trial for assault and 
 battery upon herself, she may testify in his favor, to disprove 
 the charge, 1 for it is well settled that when, in any case, 
 husband and wife are competent witnesses against each 
 other, they are also competent witnesses for each other.^ 
 
 So, where the wife is prosecuted for assaulting her hus- 
 band, he is a competent witness against her.^ 
 
 (3) Wife of party jointly indicted. Another exception 
 to the general rule is, that where, upon a joint indict- 
 ment, there is a separate trial, the husband or wife of 
 the defendant not upon trial is not necessarily incompetent 
 as a witness for the prosecution. If willing to testify, he or 
 she is competent, except, perhaps, where the offence is in its 
 nature joint, as in conspiracy,* where the acquittal of one 
 defendant works the acquittal of the others.^ 
 
 So, also, the wife of one of three jointly indicted defendants 
 is competent against the other two, after the indictment has 
 been dismissed as to her husband ; ^ but not, it seems, before 
 such dismissal.'' And where the husband is defaulted on his 
 recognizance, the wife becomes competent for the other de- 
 fendant.^ Indeed, she is generally held competent, in such 
 cases, when she is offered as a witness in favor of the 
 defendant on trial ; ^ although respectable cases are not 
 lacking which hold the other way.i" 
 
 Where the trial as well as the indictment is joint, it is 
 
 ing Morrill v. State, 5 Tex. App. 447, and the defendant seeks to show the 
 
 and Roland v. State, 9 Id. 277. husband to be the guilty party, the 
 
 1 State V. Neill, 6 Ala. 685 ; Com- wife may testify to facts exculpatory 
 monwealthu. Murphy, 4 Allen (Mass.) of her husband. Fincher ii. State, 58 
 491 ; Tucker v. State, 71 Ala. 342. Ala. 215. 
 
 2 Tucker v. State, 71 Ala. 342. 6 Eay ii. Commonwealth, 12 Bush 
 8 Whipp V. State, 34 Ohio St. 87. (Ky.) 397. 
 
 See also People v. Marble, 38 Mich. '! Dill t,. State, 1 Tex. App. 278. 
 
 117. Contra, TurnbuU v. Common- « State v. Worthing, 31 Me. 62. 
 
 wealth, 79 Ky. 495. ^ Thompson v. Commonwealth, 1 
 
 * Commonwealth v. Eeid, 8 Phil. Mete. (Ky.) 13; Cornelius o. Com- 
 (Pa.) 385 ; s. c, 1 Leg. Gaz. Eep. 182 ; monwealth, 3 Id. 481 ; State v. Burn- 
 State V. Drawdy, 14 Rich. (S. C.) 87. side, 37 Mo. 343; Commonwealth c. 
 
 5 United States w.Addate, 6 Blatchf. Manson, 2 Ashm. (Pa.) 31; Moffit v. 
 
 (U. S.) 76; Williams v. State, 69 Ga. State, 2 Humph. (Tenn.) 99; Work- 
 
 11. But see to the contrary, State man v. State, 4 Sneed (Tenn.) 425. 
 
 11. Bradley, 9 Rich. (S. C.) 168; State i» United States v. Wade, 2 Cranch, 
 
 V. McGrew, 13 Id. 316; State v. Bur- C. C. 680; Collier u. State, 20 Ark. 
 
 lingham, 15 Me. 104. Where the 36; Pullen z;. People, 1 Doug. (Mich.) 
 
 husband is suspected, but not indicted, 48. 
 
290 COMPETENCY. [CHAP. X. 
 
 pretty well settled that the wife of one defendant is not 
 a competent witness for any of the others.^ 
 
 (4) Wife of accomplice, or of witness for State. — 
 "Where the husband has testified as an accomplice, or State's 
 witness, his wife is a competent witness to corroborate his 
 testimony,^ especially where her husband has not been in- 
 dicted though evidently an accomplice.^ So, also, she may 
 prove any independent facts not sworn to by her husband 
 and not forming any part of his acts, although those facts 
 fasten a guilty knowledge on the defendant.* She may also 
 testify on the other side, to show that her husband testified 
 under a bias against the defendant, but not to contradict him.^ 
 
 (5) fVife of person injured hy the crime. At common 
 law, where the person whose goods were stolen was not 
 interested in the prosecution of the thief, his wife was a 
 competent witness for the prosecution ; but where the hus- 
 band was himself disqualified by reason of an interest in the 
 fine, she was not competent.^ But this rule of exclusion of 
 the wife because of the husband's interest in the event is 
 now swept away by the enabling acts, along with the incom- 
 petency of the husband himself — the person injured — on 
 account of his interest.^ 
 
 (6) Rules peculiar to prosecutions for adultery. — Upon 
 the question whether, upon a criminal prosecution for adul- 
 tery, the husband or wife of either of the guilty persons shall 
 be admitted as a witness for the prosecution, the decisions 
 are in direct conflict. Some of them hold that under 
 statutes permitting husband and wife to testify against one 
 another on a criminal prosecution, for an offence committed 
 by one against the other, the one may testify against the 
 other on an indictment of the other for adultery.^ 
 
 1 Commonwealth v. Easland, 1 Mass. ^ Cornelius v. State, 12 Ark. 782. 
 15 ; Commonwealth v. Robinson, 1 See also Clubb v. State, 14 Tex. App. 
 Gray (Mass.) 555; State v. Water- 192; State i). Mooney, 64 N. C. 54. 
 man, 15 So. Car. 540; Mask v. State, " United States w. Shorter, 1 Cranch, 
 32 Miss. 405. But see Morissey v. C. C. 315. 
 
 People, 11 Mich. 327; State v. Water- "< Supra, §§ chap. viii. Where the 
 
 man, 1 Ner. 543. trial is for the homicide of the hus- 
 
 2 State V. Moor, 25 Iowa, 128 ; Has- band, the wife is a competent witness 
 kins V. People, 16 N. Y. 344 ; Black- to prove his dying declarations. State 
 burnw. Commonwealth, 12 Bush (Ky.) v. Eyan, 30 La. Ann. Part II. 1176. 
 181 ; Williams v. State, 69 Ga. 11. « Roland v. State, 9 Tex. App. 277 ; 
 
 8 Powell u. State, 58 Ala. 362. s. c, 35 Am. Eep. 743; Alonzo v. 
 
 " United States c. Horn, 5 Blatchf. State, 15 Tex. App. 378; Morrill ;■. 
 
 (U. S.) 102. State, 5 Tex. App. 447. In Wisconsin 
 
§ 170.] 
 
 nULES AS TO HUSBAND AND WIPE. 
 
 291 
 
 Many cases, however, of equal respectability are found, 
 which lay down the contrary rule. Thus the Supreme Court 
 of Alabama holds that the husband of a woman, jointly 
 indicted with her paramour for living in adultery, is incom- 
 petent to testify against either of them.^ In North Carolina, 
 he cannot testify against the female defendant (his wife) even 
 though he may have obtained an absolute divorce before 
 the trial of the indictment ;2 nor can he testify for the 
 prosecution in Pennsylvania,^ and the same has been held in 
 Maine, Massachusetts, and Texas.* 
 
 (7) Rules peculiar to 'prosecutions for ligamy. — Here, too, 
 the cases are in conflict, some of them holding the first 
 wife of the alleged bigamist competent to testify against him, 
 on the ground that his second marriage is an offence com- 
 
 It is held that after a divorce a vinculo, 
 the husband is competent to prove 
 the marriage on an indictment against 
 another for adultery with the wife 
 before divorce. State v. Dudley, 7 
 "Wis. 664. See also Parsons v. People, 
 21 Mich. 509. In Lord v. State, 23 
 N. W. Rep. 507, a very recent case, 
 the Supreme Court of Kebraska, per 
 Maxwell, J., say : — 
 
 "Section 331 of the Civil Code pro- 
 vides that 'the husband can in no 
 case be a witness against the wife, 
 nor the wife against the husband, 
 except in a criminal proceeding for 
 a crime committed by one against the 
 other, but they may in all criminal 
 prosecutions be witnesses for each 
 other.' At common law a wife could 
 not be a witness against her husband; 
 and there is a direct conflict in the 
 authorities, under statutes similar to 
 ours, as to her right to be a witness in 
 a criminal proceeding for a crime 
 committed by her husband against 
 her. This is the first time the ques- 
 tion has been presented in this court, 
 and it is therefore necessary to ascer- 
 tain the intention of the legislature 
 in passing the section above referred 
 to, and give force to that intention. 
 The statute makes it an offence for a 
 husband to desert his wife and live 
 and cohabit with another woman. If 
 the husband is prosecuted for the 
 
 offence, the prosecution certainly 
 would be a criminal proceeding for a 
 crime committed against the wife. 
 The word ' crime ' is frequently used 
 to designate gross violations of law, 
 in distinction from misdemeanors ; but 
 in its broad sense it means any viola- 
 tion of law. Webst. Diet. 312, 313. 
 And in our view it was intended by 
 the legislature to include the offence 
 here charged, and the ends of justice 
 will be best subserved by permitting 
 the wife to testify. This is the rule 
 adopted in Iowa, under a similar 
 statute. State v. Bennett, 31 Iowa, 
 .24; State v. Sloan, 55 Iowa, 219; s. c, 
 7 N. "W. Eep. 516; State v. Hazen, 
 39 Iowa, 648. In Texas also. Mor- 
 rill V. State, 5 Tex. Ct. App. 447; 
 Roland v. State, 9 Tex. Ct. App. 277." 
 
 1 Cotton V. State, 62 Ala. 12. 
 
 2 State V. Jones, 89 N. C. 559, where, 
 however, he was permitted to testify 
 in her favor. 
 
 ^ Commonwealthi). Gordon, 2 Brews. 
 (Pa.) 569; Commonwealth v. Flohr, 
 3 Crim. L. Mag. 841. 
 
 * State V. Welch, 26 Me. 30 ; Com- 
 monwealth V. Sparks, 7 Allen (Mass.) 
 534; Thomas o. State, 14 Tex. App. 
 70. See also to same effect. State v. 
 Gardner, 1 Root (Conn.) 485; Com- 
 monwealth V. Jailer, 1 Grant (Pa.) 
 Cas. 218. And see People v. Ilendrick- 
 son, 19 N. W. Rep. 169. 
 
292 COMPETEKCY. [CHAP. X. 
 
 mitted against her.^ So, also, the second wife has been 
 admitted to testify for the prosecution.^ But the true rule 
 as to the second wife is believed to be the following, 
 recently laid down by the Supreme Court of the United 
 States : " The ground upon which a second wife is admitted 
 as a witness against her husband, in a prosecution for bigamy, 
 is that she is shown not to be a real wife by proof of the fact 
 that the accused had previously married another wife, who 
 was still living and still his lawful wife. It is only in cases 
 where the first marriage is not controverted, or has been duly 
 established by other evidence, that the second wife is allowed 
 to testify, and she can then be a witness to the second mar- 
 riage, and not to the first." ^ 
 
 In a recent Texas case it is held that the defendant 
 may compel the woman with whom the first marriage is 
 charged to have been contracted to testify, in rebuttal of the 
 State's evidence as to such marriage.* 
 
 1 State V. Sloan, 13 Chic. L. N. 145. 304, 313; s. c, 2 Crim. L. Mag. 489, 
 See also People v. Houghton, 24 Hun reversing 2 Utah T. 19, and revieioing 
 (N. Y.) 501; State u. Hughes, 58 Iowa, the early English cases. 
 
 165; Williams v. State, 67 Ga. 260. « Dumas v. State, 14 Tex. App. 464. 
 
 2 Johnson v. State, 61 Ga. 305; Fin- See also People v. Chase, 16 N. Y. 
 ney v. State, 3 Head (Tenn.) 544. Week. Dig. 143. 
 
 3 Miles V. United States, 103 U. S. 
 
CHAPTER XI. 
 
 TRYING THE QUESTION OP COMPETENCY. 
 
 § 171. Objections to Competency, generally. 
 
 § 172. Grounds of Objection. 
 
 § 173. The Proper Time to interpose the Objection. 
 
 § 174. Trial of Objections to Competency. 
 
 § 175. Examination on the Voir Dire. 
 
 § 176. Producing Extrinsic Evidence. 
 
 § 177. Presumptions and Burden of Proof. 
 
 § 178. Waiver of Objections to Competency. 
 
 § 179. Review. Errors cured below. 
 
 § 171. Objections to Competency, generally. — It is a well- 
 settled rule, that the competency of one offered as a witness, 
 to testify in the case, will be presumed, and the party object- 
 ing to his competency must state the grounds of his objections. 
 A general, indefinite objection will not suffice.^ Thus if the 
 testimony of a witness is intended to be objected to, in 
 ejectment, because of his holding adjoining lands, his interest 
 must be located on the plats.^ The nature of his interest, if 
 that is the ground of alleged incompetency, must be speci- 
 fied.^ A witness is often competent for some purposes and 
 not for others ; therefore, a specific objection must be taken 
 to such parts of his testimony as are deemed inadmissible.* 
 The competency of particular answers of the witness cannot 
 be raised under a general objection to the competency of the 
 witness himself.* But where the ground of a specific objec- 
 tion to the witness has been removed, and a general objection 
 afterwards overruled, it seems the objector may thereafter 
 avail himself of all grounds of exception.^ Obviously, one 
 
 1 Pegg V. Warford, 7 Md. 582 ; * Peters v. Horbach, 4 Pa. St. 134 ; 
 Brown v. State, 24 Ark. 620 ; State v. Chunot v. Larsen, 43 Wis. 536 ; Hoi- 
 Levy, 5 La. Ann. 64. loway v. Galloway, 51 111. 159. But 
 
 2 Hall w. Gittings, 2 Har. & J. (Md.) see Gerrish u. Cummings, 4 Gush. 
 112; Gittings v. Hall, 1 Id. 14; Chap- (Mass.) 391. 
 
 line V. Keedy, 3 Har. & M. (Md.) 578. » Anonymous, 3 Abb. (N. Y.) Pr. 
 
 See Stoddert v. Manning, 2 Har. & G. 102. 
 
 (Md.) 147. « Irwin v. Shflmaker, i Pa. St. 199. 
 
 8 Leach v. Kelsey, 7 Barb. (N. Y.) 
 466; Snyder v. May, 19 Pa. St. 235. 
 
29J: COMPETENCY. [CHAP. XI. 
 
 who calls a witness cannot object to his competency,^ and 
 even a party to the record was never excluded as a witness 
 merely by the raising of the objection : such objection had 
 to be sustained by the court at the trial.^ 
 
 § 172. Grounds of Objection. — The various grounds of 
 incompetency of witnesses having been considered in the 
 preceding chapters of this work, it remains to examine 
 here some of the many objections to witnesses which the 
 courts have refused to sustain. Among these unavailable 
 objections to a witness' competency are, relationship of 
 kindred to the party calling him ; ^ that the witness is called 
 to prove the title to the property sued for in trover or re- 
 plevin, to be in himself ; * that he has been heard to say, not 
 under oath, that he must pay the damages, if any are re- 
 covered;^ that his testimony will tend to clear him of a 
 fraud charged upon him bj^ another witness ; ^ that he was 
 not competent when suit was begun — if he is competent 
 when offered as a witness ; '^ that he has received a copy of 
 tlie interrogatories before the time of testifying, without any 
 comments, or any influence used to affect his answers ; or 
 has received a letter from one of the parties, requesting him 
 to tell the whole truth, without suggestion as to what the 
 writer considered the truth to be.^ A witness may be 
 competent to prove some facts, and incompetent as to 
 others ; ^ if competent to answer any questions in the cause, 
 he should not be rejected altogether.^'' 
 
 So, also, the facts that the witness is biased in favor of the 
 party calling him,ii or is under a moral or honorary obligation 
 
 1 Seip V. Storch, 52 Pa. St. 210. petent at the time of commencing the 
 
 2 United States v. Scliindler, 10 Fed. suit. Shannon v. Puller, 20 Ga. 566. 
 Eep. 547. But he will not be allowed to dis- 
 
 5 High?!. Stainback,lStew.(Ala.)24. qualify himself, and thus deprive a 
 4 Ashby V. West, 3 Ind. 170. party of the benefit of his testimony. 
 
 6 Jones V. Tevis, 4 Litt. (Ky.) 25. Clark v. Brown, 1 Barb. {N. Y.) 215. 
 S. P., Bank of Columbia v. Magruder, 8 Warner v. Daniels, 1 Woodb. & 
 6 Har. & J. (Md.) 172. M. (U. S.) 90. 
 
 6 Babb V. Clemson, 12 S. & E. (Pa.) » Wright v. Rogers, 3 McLean (TJ. 
 
 328. S.) 229. 
 
 ' Talladega Ins. Co. v. Landers, 43 w Prather v. Lentz, 6 Blackf. (Ind.) 
 
 Ala. 115 ; Metcalf v. Young, Id. 643 ; 244. See also, generally, Burgess v. 
 
 Crosby v. Floyd, 2 Bail. (S. C.) 133; Lane,3Me.l65; Kimball D.Thompson, 
 
 Henry u. Morgan, 2 Binn. (Pa.) 497. 4 Cush. (Mass.) 441; People w. Annis, 
 
 So a witness incompetent to testify 13 Mich. 511 ; Manchester Iron Co. 
 
 at the time of examination, is incom- i/. Sweeting, 10 Wend. (N. Y.) 162. 
 
 petent, notwithstanding he was com- n Newton v. Pope, 1 Cow. (N.Y.) 109. 
 
§ 173.] TEYING THE QUESTIO^f OF COMPETENCY. ' 295 
 
 to such party,! ^^q j^q^; good objections to his competency, 
 but go merely to the question of his credibility .^ Although 
 the same rules are applied in chancery as at law, as to the 
 competency of witnesses, yet the tendency, in modern times, 
 is to let most objections go to the credibility only ; and 
 especially is this more safe where the judges weigh the 
 evidence.^ 
 
 § 173. The Proper Time to interpose the Objection. — As a 
 general rule an objection to the competency of a witness 
 should be made before the commencement of his examination- 
 in-chief, if the ground of incompetency is then known to the 
 party objecting ;* but if not then known, the objection may 
 be made at any time during the trial, if made as soon as the 
 interest or incompetency of the witness is discovered.^ If not 
 made at the first opportunity, the objection will be deemed to 
 have been waived." If his incompetency first appears on the 
 examination-in-chief,'' or even on the cross-examination,^ the 
 objection may then be made. The rule is, that where a 
 witness, in any stage of a cause, in law or equity, discovers 
 himself to be interested, his testimony may be rejected,^ or 
 the jury may be instructed to disregard his testimony .^^ 
 
 If the objection is not made until after the testimony is 
 closed, a party cannot insist, as a matter of right, that the 
 testimony of an interested witness be stricken outj^i especially 
 if his incompetency was such as might have been remoA'^ed 
 
 1 Commercial Bank v. Hughes, 17 Hudson v. Crow, 26 Ala. 515; Lewis 
 Wend. (N. Y.) 94. v. Morse, 20 Conn. 211 ; Engshury v. 
 
 2 The two questions, as to compc- Buchanan, 11 Iowa, 387; Stuart v. 
 tency and credibility, are distinct and Lake, 33 Me. 87 ; Groshon v. Thomas, 
 independent, and even the fraudulent 20 Md. 234; Heely v. Barnes, 4 Den. 
 conduct of a witness which might (jST. Y.) 73; Gregory r. Dodge, 4 
 seriously affect his credibility, does Paige (N. Y.) 557; Eogers v. Dibble, 
 not destroy his competency. Rose v. 3 Id. 238. 
 
 Bates, 12 Mo. 30. '' Fisher i'. Willard, 13 Mass. 379 ; 
 
 3 Person v. Sanger, 1 Woodb. & M. Brooks v. Crosby, 22 Cal. 42 ; Sheri- 
 (U. S.) 138. dan o. Medara, 2 Stock. (N. J.) Eq. 
 
 ^Donelson v. Taylor, 8 Pick. 469; 
 
 (Mass.) 390; Patterson v. Wallace, * Carter d. Grares, 7 Miss. 9. 
 
 44 Pa. St. 88; Howser v. Common- 'Swift v. Dean, 6 Johns. (N. Y.) 
 
 wealth, 51 Id. 332; Milsap ,;. Stone, 523; Mitchell ,■. Mitchell, 11 Gill & 
 
 2 Col. T. 137. J. (Md.) 388; Andre u. Bodman, 13 
 
 sVeiths V. Hagg, 8 Iowa, 163; Md. 241. 
 
 StateK.Daraery,4BMe. 327; SImrtlefE "Morton v. Beall, 2 Har. &. G. 
 
 V. Willard, 19 Pick. (Mass.) 202; (Md.) 136. 
 
 Johnson v. Alexander, 14 Tex. 332. n Newsom v. Huey,.36 Ala. 37. S. P., 
 
 8 Drake v. Poster, 28 Ala. 649; Laugher c. Dupliorn, 9 Gill (Md.) 
 
296 COMPETENCY. [chap. XI. 
 
 by a release of interest.^ The objection comes too late after 
 yerdict, and if not made at the trial, the question of the 
 competency of a witness examined at the trial will not be 
 considered on appeal or error,^ nor will his admission, though 
 interested, afford ground for a new trial, unless his interest 
 was known and concealed by the party producing him.^ 
 
 § 174. Trial of Objections to Competency. — Objection to 
 the competency of a witness having been made, the question 
 of competency must be decided,no matter how difficult it may 
 be to determine as to his interest or want of interest. To 
 reject him, in such a case, without deciding the question, is 
 error,* and to admit him is equally erroneous.^ The ques- 
 tion is for the court, not the jury, to decide,^ and there are 
 two methods of determining it, (1) by examining tire witness 
 on his voir dire, and (2) by evidence extrinsic of his own. 
 But both these methods cannot be pursued ; the party, hav- 
 ing elected to use the one, cannot afterwards adopt the 
 other.'' 
 
 If the objection arises upon the examination of the witness 
 as such, he may be further interrogated as to facts tending to 
 support his competency.^ If he is competent as to some 
 
 314 ; Ingletoight v. Hammond, 19 ^ State v. Secrest, 80 N. C. 450. 
 Ohio, .337 ; Rees v. Livingston, 41 Pa. '' Reynolds v. Lounsbuiy, 6 Hill 
 St. 113; Mclnroy v. Dyer, 47 Id. 118. (N. Y.) 5S4; Chouteau v. Searcy, 8 
 1 Roosevelt v. EUithorp, 10 Paige ]Mo. 7.33; Cook f. Mix,' 11 Conn. 4.32; 
 (N. Y.) 415; Town v. Needham, 3 Id. Amory v. Fellows, 5 Mass. 219, 229; 
 546. But see Mohawk Bank ^. At- Tucker v. Welsh, 17 Id. 160; Dole !■. 
 water, 2 Id. 54. Tliurlow, 12 Mete. (Mass.) 157; Corn- 
 Where tlie testimony is taken by mercial Bank v. Hughes, 17 Wend, 
 deposition, the competency of the (N. Y'.)94; Stall i;. Catskill Bank, 18 
 witness may be objected to at the Id. 406 ; Rohrer v. Morningstar, 18 
 trial. Talbot y. Clark, 8 Pick. (Mass.) Ohio, 579 ; City Council u. Haywood, 
 51. But see to tlie contrary, Hasey 2 Nott & M. (S. C.) .308. 
 V. White Pigeon Beet Sugar Co., 1 'Mifflin v. Bingham, 1 Dall. 272; 
 Doug. (Micli.) 193; Gregorys. Dodge, Mallet v. Mallet, 1 Root (Conn.) 501; 
 14 AVend. (N. Y.) 593; U. S. v. One Gordon v. Bowers, 16 Pa. St. 226; 
 Case of Pencils, 1 Paine (U. S.) 400. M'Allister v. Williams, 1 Overt. 
 = House V. House, 5 Ind. 237; Com- (Tenn.) 107, 119; Bridge v. Welling- 
 monwealth l\ Green, 17 JIass. 515; ton, 1 Mass. 219; Chance v. Hine, 6 
 Snow 1-. Batclielder, 8 Cush. (Mass.) Conn. 231; Butler v. Butler, 3 Day 
 513; Essex Bank v. Rix, 10 N". H. 201; (Conn.) 214; Tlie Watchman, 1 Ware, 
 Jackson v. Barron, 37 N. H. 494; Ed- 232; Waughop v. Weeks, 22 III. 360; 
 ington V. Mutual &c. Ins. Co., 5 Hun Diversy <... Will, 28 111. 216 ; Walker 
 (N. Y.) 1; State v. Scott, 1 Bail. (S. v. Collier, 37 10. 362 ; Welden u. Buck, 
 C.) 270. Anth. (N.Y.) 9. There are, however, 
 3 Niles V. Brackett, 15 Mass. 878. cases to the contrary as to the last 
 * Walker v. Skeeue, 3 Head (Tenn.) point. See infra, § 175. 
 1. 8 McRae i;.'Rhodes, 22 Ark, 315. 
 
§ 175.] TEYING THE QUESTION OF COMPETENCY. 297 
 
 facts, but not as a general witness in the case, the party 
 calling him should state what he proposes to prove by him, 
 to the end that the court may judge as to his limited com- 
 petency.-' His character, not his conduct, decides his 
 competency.^ 
 
 In determining the competency of a witness who has been 
 sworn de bene esse, the court should disregard the testimony of 
 the witness thus sworn, and look only to the other evidence 
 given.^ If he acknowledges an expectation of gain or loss, 
 according to the result of the case, the judge should reject 
 him.* If he claims to be disinterested, and the facts he 
 discloses are consistent with such claim, his testimony should 
 go to the jury.^ In doubtful cases the court should admit 
 the witness, leaving the question of interest or no interest to 
 the decision of the jury.^ Where the objector attempts, but 
 fails, to show interest in the witness, the court will not set 
 him aside, though it may, later on, appear that he is, in fact, 
 interested in a question in issue.'' 
 
 § 175. Examination on the Voir Dire. — The strict and 
 regular method of raising an objection to the competency of 
 a witness, is by examining him on the voir clire,^ i.e., he 
 sliould be sworn to answer all such questions as the court 
 shall put to him touching his competency as a witness in the 
 cause, his answers not to be used as evidence in the case to 
 be laid before the jury. Strictly, this examination, being of 
 a preliminary nature, should be taken before the witness 
 is examined or sworn in chief, and formerly, this rule was 
 strictly adhered to.^ 
 
 Under the more modern practice, the objector may have 
 the witness sworn on the voir dire, or allow him to be sworn 
 in chief, and examine him as to his competency, or introduce 
 proof showing his incompetency. If he adopts the former 
 course, he cannot afterwards resort to the latter ; ^^ and if he 
 
 1 Stewart v. Kirk, 69 111. 509. * Veritatem dicere; Vrai dire. 
 
 ■'■ Allen !). Young, 6 T. B. Mon. (Ky.) » See 1 T. R. 717 ; Dewdney v. Pal- 
 136. mer, 4 Mees. & W. 664. But this 
 
 2 Mott V. Hicks, 1 Cow. (N. Y.) 513. rule is no longer strictly adhered to. 
 
 " Innis V. Miller, 2 Dall. (U. S.) 50. " Le Barron v. Redman, 30 Me. 536 ; 
 
 ^ Strawbridge v. Spann, 8 Ala. 820. Stewart v. Lake, 33 Me. 87 ; Gordon 
 
 6 Gordon v. Bowers, 16 Pa. St. 226. v. Bowen, 16 Pa. St. 226 ; Schnader v. 
 
 ' Coit 0. Bishop, 2 Root (Conn.) Schnader, 26 Id. 384 ; Doer v. Osgood, 
 
 222. To the contrary, Schillinger v. 2 Tyler (Vt.) 28; Butler o. Butler, 3 
 
 M'Cann, 6 Me. 364. Day (Conn.) 214, 218. 
 
298 C05IPETENCY. [CHAP. XL 
 
 fails to prove tlie witness incompetent by the introduction of 
 extraneous proof, he cannot tlren resort to the voir dire} 
 But it has been decided that a resort to one method to prove 
 one ground of interest, does not preclude a resort to the 
 other method to prove the interest of the witness on another 
 ground ; ^ and that the presiding judge may, in his discretion, 
 permit a party who has failed to prove interest by extrinsic 
 evidence, to examine the witness on his voir dire? So, the 
 court has discretion whether the preliminary oath as to inter- 
 est, or the oath-in-chief, shall be administered. But the 
 better and more approved practice now is to swear the 
 witness-in-chief, and bring out the facts showing his interest, 
 either on direct or cross examination.* 
 
 On the other hand, where evidence of the interest of the 
 witness is given by others, he cannot be examined on the 
 voir dire to disprove such interest;^ otherwise, where his 
 interest appears from his own testimony." The party offering 
 the witness has a right to cross-examine him when put upon 
 his voir dire^ and the witness may prove his own release of 
 interest,^ or want of it,^ or that it is balanced.^" But, it 
 seems, he cannot show that he had no interest at the time 
 the facts to be established by his testimony occurred.^^ 
 
 The witness may be examined, so far as relates to his 
 interest, in respect to contracts, records, or documents, not 
 produced at the trial; this being an exception to the rule 
 
 1 Bridge v. ■Wellington, 1 Mass. 219, ^ ^^\i ^_ Rawson, 14 111. 484 ; Fan- 
 221, 222; Mifflin?;. Bingham, 1 Dall. ning v. Myers, Anth. (N". Y.) 47; 
 (U. S.) 272, 275; Stebbins v. Sackett, Blackstock v. Leidy, 19 Pa. St. 335. 
 
 5 Conn. 258, 261; Chance v. Hine, 6 « Eequa v. Eequa, 22 N. Y. 354; 
 
 Id. 231. But see Main ii. Nevvson, Sigourney v. Sibley, 21 Pick. (Mass.) 
 
 Anth. (N. Y.) 11. 101. 
 
 2 Stebbins v. Sackett, supra. i' Tarleton v. Johnson, 25 Ala. 300. 
 8 Butler V. Tufts, 13 Me. 302. n Gill's Will, 2 Dana (Ky.) 390. 
 
 4 Seeley v. Engell, 17 Barb. (N. Y.) See Banks v. Clegg, 14 Pa. St. 390. 
 530. What questions may be put to a wit- 
 
 5 Carroll !). Pathkiller, 3 Port. (Ala.) ness on his examination on the voir 
 279; Robinson u. Turner, 3 Greene Are, and the extent to which he may 
 (Iowa) 540; Hescox u. Hendree, 27 be examined, see Stebbins v. Sackett, 
 Ala. 216. Conn. 258 ; Hooker v. Johnson, G 
 
 » Montgomery Plank Road Co. v. Fla. 730 ; Bailey v. Barnelly, 23 Ga. 
 
 Webb, 27 Ala. 618. See also Evans 582; Moore v. Sheridine, 2 Har. & M. 
 
 v. Eaton, 1 Pet. C. C. 322; Ely v. (Md.) 453; Hamblett v. Hamblett, 6 
 
 Jones, Coxe (N. J.) 46. N. H. 3.33; Blackwell v. Hageman, 2 
 
 'Beach u. Covillaud, 2 Cal. 237; Penn. (N. J.) 1032; Eeid v. Dobson, 
 
 Succession of Weigel, 18 La. Ann. 1 Overt. (Tenn.) 396. 
 49. 
 
§ 177.] TRYING THE QUESTIOK OF COMPETENCY. 299 
 
 requiring the best evidence to be produced or its loss 
 accounted for.^ 
 
 § 176. Producing Extrinsic Evidence. — With regard to 
 the sort of evidence, extra the witness, which may be 
 received to impeach his competency, it may be observed 
 that, although it is addressed in the first instance to the 
 court, still, as it may, in doubtful cases, ultimately be sub- 
 mitted to the jury, it ought to be competent evidence,^ and 
 entirely free from doubt.^ Evidence of the admissions and 
 declarations of the witness, made out of court, will not be 
 sufficient to exclude him on the ground of interest ; * but 
 statements so made by the party calling him will be.^ Of 
 course, counter-evidence is admissible, to sustain the com- 
 petency of the witness.^ 
 
 § 177. Presumptions and Burden of Proof. — The presump- 
 tion being in favor of competency, the burden is upon the 
 objector to prove that one offered as a witness is incom- 
 petent to testify by reason of interest or otherwise.^ Thus, 
 to exclude a witness on the ground that his testimony, if 
 admitted, will tend to protect him from claims against him, 
 it must first be shown that there is, at least, a prima facie 
 case of liability against him, and that he is exposed to certain 
 danger from such claims.^ The objector must point out to 
 
 1 Babcock v. Smith, 31 111. 57 ; Mil- v. Watkins, 1 Dev. & B. (N. C.) 442, 
 ler u. Mariners' Churcli, 7 Me. 51 ; 445 ; Rich v. Eldredge, 42 N. H. 153. 
 Hays V. Richardson, 1 Gill & J. (Md.) To the contrary, Colston v. Nichols, 
 .366; Mayo v. Gray, 2 Penn. (N. J.) 1 Har. & J. (Md.) 105; Bean o. Jen- 
 837 ; Howser <,. Commonwealth, 51 kins, Id. 135. 
 
 Pa. St. 332. 6 Walker v. Coursin, 10 Pa. St. 321 ; 
 
 As to the effect and conclusiveness of Peirce v. Chase, 8 Mass. 487. But 
 
 his answers, either to show his compc- see High v. Stainback, 1 Stew. (Ala.) 
 
 tency or incompetency, see Crary v. 24. 
 
 Caradine, 4 Ark. 225; McNeill i. ^ state i;. Twitty, 2 Hawks (X. C.) 
 
 Rousseau, 20 Ga. 593 ; Jennings v. 440. 
 
 Estes, 16 Me. 823. See also 1 Phil. ' States. IloUoway, 8 Blackf. (Ind.) 
 
 Ev. *08, note (5). 45; Densler v. Edwards, 5 Ala. 81; 
 
 2 Johnson v. Kendall, 20 N. II. 304. Adams v. Barrett, 3 Ga. 277 ; Richard- 
 ^ Ilaynes v. Hunsicker, 26 Pa. St. 58. son v. Hage, 24 Ga. 203 ; Anderson 
 " Young t). Garland, 18 Me. 409; t'. Irvine, 5 B. Mon. (Ky.) 488; Ham- 
 Dun V. Cronise, Ohio, 82 ; Freeman ilton v. Summers, 13 Id. 11 ; Renwick 
 V. Luekett, 2 J. J. Marsh. (Ky.) 390; v. Williams, 2 Md. 356; Pegg ;•. War- 
 Davis V. Whiteside, 4 Id. 116 ; Stuart ford, 7 Md. 582 ; Norris v. Hurd, Walk. 
 V. Lake, 33 Me. 87; Peirce t;. Chase, (Mich.) 102; Hulshart v. Hurt, Coxe 
 8 Mass. 487; Commonwealth w.AVaite, (X. J.) 52; Lott v. Sandifer, 2 Mill 
 5 Mass. 261; Vining v. Wooten, (S. C.) Const. 1G7. 
 
 Cooke (Tenn.) 127; Nichols v. Hoi- » Carrington v. Ilolabird, 17 Conn, 
 gate, 2 Aik. (Vt.) 138, 140; Ingram 530. 
 
300 COMPETENCY. [chap. XI. 
 
 the court the ground of incompetency.^ The witness will not 
 be excluded on the ground of interest, if the question of his 
 interest is in doubt.^ 
 
 § 178. Waiver of Objections to Competency. — We have 
 already seen that, as a general rule, the right to object to 
 a witness, as incompetent by reason of interest, is waived 
 unless the objection is taken at the earliest opportunity.^ 
 So, also, if a party examines a witness, in chief, knowing him 
 to be adversely interested, he cannot afterwards raise the 
 objection of interest.* Having had the benefit of his testi- 
 mony the party cannot afterwards object to the witness on 
 the ground of interest.^ And consenting to the examination 
 of the witness on the voir dire is also a waiver of the right to 
 show incompetency by other means of evidence.^ If a 
 paper purporting to be a release of his interest is handed to 
 the witness, and its sufficiency as a release is not objected 
 to, this will be deemed a waiver of any objection to the 
 witness on the ground of the insufficiency of the release.^ 
 A waiver of objection to competency made at one stage of 
 the taking of testimony is a waiver during the whole progress 
 of that proceeding, although several distinct depositions are 
 sworn to by the witness at different times.^ But where 
 objection is made to the introduction of the witness, the act 
 of cross-examining him, or the production of evidence in 
 rebuttal of his testimony, is no waiver of the objection.^ 
 
 ' White Water Valley Canal Co. Combs v. Bateman, 10 Barb. (N. Y.) 
 
 V. Dow, 1 Ind. 62; Leach i. Kelsey, 573; De Vendal u. Malone, 25 Ala. 
 
 7 Barb. (N. Y.) 466. 272. 
 
 2 Howard v. Brown, 3 Ga. 52.3; ^ Den v. Downam, 1 Green {N. J.) 
 Watts V. Garrett, 3 Gill & J. (Md.) 135; Bogert v. Bogert, 2 Edw. (K. Y.) 
 355; Duel «. Fisher, 4 Den. (N. Y.) 399; Fulton Bank v. Stafford, 2 
 515. In Tennessee the contrary doc- Wend. (N. Y.) 483; Tappan v. But- 
 trine was held in one case, i.e., that it ler, 7 Bosw. (N. Y.) 480. 
 is the business of the party offering a " Hosack v. Rogers, 8 Paige (N. Y.) 
 witness to free his competency from 229 ; see supra, § 175 ; Bisbee v. Hall, 
 legal exception ; and if tliis is left 3 Ohio, 449. 
 
 doubtful, the witness maybe excluded. ' BuUen v. Arnold, 31 Me. 583. 
 
 Story V. Saunders, 8 Humph. (Tenn.) 8 Choteau v. Thompson, 3 Ohio St. 
 
 663. But that case is clearly opposed 424. See also Beall v. Lynn, 6 Har. 
 
 to the current of contemporaneous & J. (Md.) 336. 
 
 authority. s Boylan v. Meeker, 4 Dutch. (N. 
 
 s Supra, § 178; Davis v. Roberts, 5 J.) 274; Carpenter v. Ginder, 1 AVis. 
 
 Humph. (Tenn.) Ill; Legg I). McNeill, 243. As to the waiver of the objec- 
 
 2 Tex. 428; Levering c. Langley, 8 tion that the witness is the husband 
 
 Minn. 107. or wife of a party to the suit, see 
 
 Mfelly V. Brooks, 25 Ala. 523; Hackett v. Bonnell, 10 Wis. 471 (de- 
 
§ 179.] TRYING THE QUESTION OF COMPETENCY. 801 
 
 § 179. Review; Errors cured below. — Unless the ground 
 of the objection to the competency of the witness is pointed 
 out to the trial court, the overruling of the objection cannot 
 be assigned as error.i The objector will ,be limited, on 
 appeal, to the specific objection made at the trial. Thus, if 
 the objection is interest under a particular statute, interest 
 in other respects cannot be shown on appeal.^ The rejection 
 of the witness affords no valid ground of exception, where it 
 fails to appear in the record that he knew or could testify 
 to anything relevant to the issue on trial ; ^ and where his 
 incompetency is supposed to rest on a deed not used on the 
 trial for any purpose, such deed cannot authorize a decision 
 by the appellate court, that the court below erred in not re- 
 jecting the evidence of the witness.* But an exception 
 taken on the voir dire, and overruled, will avail the party 
 taking it, as an exception to all the testimony of that witness 
 given in the case.^ 
 
 Sometimes irregularities occur in dealing with the objection 
 to competency, which are cured in some subsequent stage 
 of the trial. Thus, a withdrawal of the objection and consent 
 to the examination of the witness, cures the error of his 
 erroneous rejection.® And the erroneous admission of an 
 incompetent witness may be cured by an instruction to the 
 jury not to consider his testimony.'^ 
 
 ciding that the ohjeotion may be * Emory v. Owings, 3 Md. 178. See 
 
 waived) ; and Hubbell v. Grant, 39 also Grant v. Levan, 4 Pa. St. 393. 
 
 Mich. 641 (holding that it cannot be). ^ Smith v. Fairbanks, 27 N. H. 521. 
 
 1 White "Water Valley Canal Co. « gmull u. Jones, 6 Watts & S. (Pa.) 
 V. Dow, 1 Ind. 141. 122. 
 
 2 Bunker v. Gilmore, 40 Me. 88. ' Lester v. McDowell, 18 Pa. St. 91. 
 * Bates V. Barber, 4 Cush. (Mass.) A dangerous rule to apply in all cases. 
 
 107. See also Lay v. Lawson, 23 Ala. 377 ; 
 
 People V. Anderson, 26 Cal. 129. 
 
Part II. 
 
 CREDIBILITY. 
 
PART 11. — CREDIBILITY. 
 
 CHAPTER XII. 
 
 ELEMENTARY PRINCIPLES. 
 
 § 180. The question of credibility one for the jury. 
 
 § 181. How far dependent on means of knowledge or recollection. 
 
 § 182. Or on the character and conduct of the witness. 
 
 § 183. Or his manner and appearance. 
 
 § 184. Or his bias or interest. 
 
 § 185. Or relationship to party calling him. 
 
 § 186. Credibility of parties in civil actions. 
 
 § 187. Of agents and servants. 
 
 § 188. Of accomplices. 
 
 § 189. Of spies and informers. 
 
 § 190. Of defendants in criminal cases. 
 
 § 191. Rules for weighing testimony. 
 
 § 192. The maxim "falsus in unofcdsus in omnibus." 
 
 § 193. Positive and negative testimony. 
 
 § 194. Conflicting testimony. 
 
 § 195. When one witness is sufficient. 
 
 § 180. The Question of Credibility one for the Jury. — 
 While it is the province of the court to pass upon the com- 
 petency of witnesses, it is altogether for the jury, as exclu- 
 sive judges of the facts, to say what degree of weight or 
 credibility shall be given to their testimony,^ and it is 
 reversible error for the court, in its instructions to the jury, 
 to invade their province in this respect.^ Thus, where the 
 court stopped the cross-examination of a witness, saying, in 
 
 ^ Union Ey. &c. Co. v. Kallaher 59 Wis. 57. Compare Lynch v. Pyne, 
 
 (111.), 2 N. E. Eep. 77; Nat. Bank v. 52 How. (N. Y.) Pr. 435. 
 
 Mills (N. Y,), 2 N.E. Rep. 27; Moore = Moore v. State, 68 Ala. 380; 
 
 V. State, 68 Ala. 380 ; Moore v. Jones, Clevinger v. Curry, 81 111. 432 , 
 
 13 Ala. 296; Western &c. R. R. Co. People v. Mallin, 22 N. W. Eep. 15; 
 
 V. Carlton, 28 Ga. 180 ; Bowers v. Ex parte Warrick, 73 Ala. 57. Com- 
 
 People, 74 111. 418; Stampofski v. pare Mack v. State, 48 Wis. 271 
 
 Stiffens, 79 111. 303 ; Terry v. State, (where " proper instructions " and 
 
 13 Ind. 70; Harrison i-. Brock, 1 "cautions" are said to be proper), 
 
 Munf. (Va.) 22; Mechelke v. Bramer, and Gibson v. Troutman, 9 111. App. 
 
SOG CREDIBILITY. [chap. XII. 
 
 the presence of the jury, "I have serious doubts whether 
 that witness ought not to be recognized to answer for 
 perjury," this was lield error.^ The jury may base tlieir 
 estimate of a witness' credibility on immaterial as well as 
 material facts,^ or judge of it from his manner; but they 
 should not reject him arbitrarily.^ And the credibility of 
 experts is as much within their province as that of any other 
 witnesses.* 
 
 On the other hand, if the facts depend entirely upon the 
 testimony of an uncorroborated witness, whose credibility is 
 plainly impeached, the jury are morally bound to disregard 
 his testimony .5 
 
 § 181. How far Dependent on Means of Knowledge or 
 RecoUeotiou. ^ — It is true, as a general rule, that where an un- 
 impeached witness swears to a fact as of his own knowledge, 
 he must be deemed to possess competent means of information 
 and knowledge of the fact, unless the contrary appears.^ But 
 a witness who swears positively to facts not within his actual 
 knowledge, e.g., the act of another not done in his pres- 
 ence, is not worthy of belief, in the absence of explanation 
 as to how he acquired his positive knowledge of the facts 
 sworn to ; '' and the rule is the same where facts thus sworn 
 to were of no concern to the witness, and happened many 
 years before, during his childhood.^ Swearing positively, 
 from mere memory, after the lapse of several j^ears, to such 
 facts as dates,^ will seriously impair the credibility of a 
 witness, while confusion and uncertainty in his testimony 
 respecting dates will not have that effect in such cases.^'' 
 
 94 (where some restriction is placed * Eggers v. Eggers, 57 Ind. 461. 
 
 upon the jury as to what witnesses ^ Dunlap v. Patterson, 5 Cow. (N. 
 
 to believe or disbelieve). See also Y.) 248, 246. S. P., Newell w. Wright, 
 
 Engmann v. Immel, 59 Wis. 249. 8 Conn. 323. 
 
 1 Kinner v. State, 45 Ind. 175. ^ Kottwitz v. Bagby, 16 Tex. 656. 
 
 2 Paton V. Stewart, 78 111. 481 j But see McNally v. Meyer, 5 Ben. 
 "Wallace v. State, 28 Ark. 531; Shel- (U. S.) 239. 
 
 laharger y. Nafus, 15 Kan. 547; Hoi- ' Slade u. Joseph, 5 Daly (N. Y.) 
 
 loway V. Commonwealth, 11 Bush 187. But see also Willey v. Ports- 
 
 (Ky.) 344. mouth, 35 N. PI. 308. • 
 
 "• See City Bank of Macon v. Kent, 8 Chandler t. Hough, 7 La. Ann. 
 
 57 Ga. 253 ; Jones v. State, 48 Ga. 441 ; Parker v. Chambers, 24 Ga. 518. 
 
 163; Evans u. George, 80 111. 51; ^ Willett t;. Fister, 18 Wall. (U. S.) 
 
 Smith V. Grimes. 43 Iowa, 357 ; Green 91. 
 
 V. Cochran, 43 Iowa, 545 ; Chester v. w Black v. Black, 38 Ala. 111. 
 Stale, 1 Tex. App. 702; State v. 
 Smallwood, 75 N. C. 104. 
 
§ 182.] ELEMENTAEY PRINCIPLES. 307 
 
 But imperfect recollection of some things is not fatal to 
 the credit of the witness as respects other things which he 
 does remember.^ A witness, however, who pretends to 
 forget circumstances collateral to his main story, which he 
 must recollect if he lias any memory at all, and in respect 
 to which he would be open to contradiction if his testimony 
 is untrue, is unworthy of belief.^ 
 
 The duty of the jury is, to regard the capacity of the 
 witness, whether he was able to see and understand the 
 transaction, and also whether he was attentive or careless, 
 prejudiced or dispassionate, or whether he has some sinister 
 motive that might lead him to fabricate that which he did 
 not see.^ The words he uses are to be taken in their ordi- 
 nary meaning, and, Avhen testifying to a fact necessarih^ 
 within his knowledge, the evidence may go to the jury, not- 
 withstanding he fails to affirm positively that the thing is 
 or is not so.* 
 
 But a wide distinction should be made between witnesses 
 who have an opportunity of knowing whether a fact has or 
 has not occurred, and those who express a mere opinion 
 based upon appearances or so-called results. The testi- 
 mony of one of the former is worth that of a dozen of the 
 latter.^ 
 
 § 182. or on the Character and Conduct of the VSTitness. 
 
 (1) Character. If by reason of the bad character of a 
 witness he is found unworthy of belief, his testimony may 
 be disregarded,^ and the occupation of a witness may always 
 be shown for the purpose of affecting his credibility.'^ But 
 after all, the jury are the judges, and even where it is shown 
 that a witness has a bad reputation for truth, his evidence is 
 not necessarily destroyed, but is to be considered under 
 all the circumstances described in the evidence, and given 
 such weight as the jury believe it entitled to.^ A belief in 
 
 ^ Jackson v. McVey, 18 Johns. (N. ^ Donohue v. Henry, 4 E. D. Smith, 
 
 Y.) 330; supra, § 10; States. Cowan, (N. Y.) 102; Kittering v. Parker, 8 
 
 7 Ired. (N. C.) L. 239. Ind. 44. 
 
 2 Gibbons v. Potter, 3 Stew. (N. J.) ' United States v. Duff, 19 Blatchf. 
 
 204. (XJ. S.) 9, where he was shown to be 
 
 " People V. Bodine, 1 Edm. {N. Y.) a lottery dealer. 
 
 Sel. Cas. 36. 8 gtate v. Miller, 53 Iowa, 209. 
 
 * Hammock v. McBride, 6 Ga. 178. And see Brown v. State, 18 Ohio St. 
 
 s Malin v. Malin, 1 Wend. (N. Y.) 496; People v. Eobles, 34 Cal. 591. 
 623, 659. 
 
808 CKEDIBILITY. [CHAP. XII. 
 
 spiritualism will not impair the credibility of a witness,^ nor 
 ■will the fact that he is a clergyman increase it.^ Even con- 
 yiction of crime is only a circumstance for the jury to 
 consider, and to which they are to give what weight they 
 see fit, in estimating the value of the witness' testimony.^ 
 So also, in the case of an unchaste woman, her loose char- 
 acter affords no argument against her credibility as a wit- 
 ness,* though, in some cases, her testimony should be received 
 with caution, and may require corroboration .° Even a 
 common prostitute is competent, and may be reliable ; 
 whether she is so or not, is for the jury to judge, taking the 
 habits of the woman and all the circumstances into con- 
 sideration.^ 
 
 (2) Conduct. Sometimes the conduct of a witness, at or 
 previous to the trial, is an important factor in getting at the 
 weight of his testimony. Thus, if a previous quarrel between 
 him and a party be shown, this may be considered by the 
 jury,'' as may also his complicity in the offence on trial,^ or 
 his betrayal on the witness stand, of a secret so long kept 
 undivulged as to almost render him a particeps criminis.^ 
 So a person in charge of a canal-lock, who had been arrested 
 for his careless conduct, was heard with suspicion when, 
 upon a repetition of such conduct, he endeavored to cast 
 the blame upon the person complaining.^" And a witness 
 who refused to show his books of account already in court, 
 after testifying by the aid of an alleged memorandum there- 
 from, was held thereby to subject his testimony to suspicion.^! 
 An attempt by one witness to bribe another renders the 
 former unworthy of belief without corroboration.^^ 
 
 The intoxicated condition of a witness at the time of his 
 
 1 Blaisdell i-. Raymond, 9 Abb. (N. 363; Smithwick v. Evans, 24 Ga. 
 
 Y.) Pr. 178n. 461; Craft v. State, 3 Kan. 450; 
 
 = Sneed v. Creath, 1 Hawks (N. C.) Anonymous, 17 Abb. (N. Y.) Pr. 48. 
 309. ' Breen u. People, 4 Park. (N. Y.) 
 
 3 People V. McLane, 60 Cal. 412. Cr. 380. 
 
 And see Commonwealth r. Gorham, ^ Moses v. State, 58 Ala. 117. See 
 
 99 Mass. 420. also Borton v. Borton, 48 Iowa, 697. 
 
 4 State V. Larkin, 11 Nev. 314; n Miller v. Miller, 5 C. E. Gr. (N. 
 Jones V. State, 13 Tex. 168. J.) 216. 
 
 s Frazer v. People, 54 Barb. (N. Y.) lo Sipple v. State, 1 N. E. Eep. 892. 
 
 306; Anonymous, 17 Abb. (N. Y.) " Davie u. Jones, 68 Me. 393. See 
 
 Pr. 48. also McMaster i'. Stewart, 11 La. 
 
 « State V. Shields, 45 Conn. 250. Ann. 546. 
 
 S. P., State V. Eandolph, 24 Conn. 12 Smith v. Newton, 84 III. 14. 
 
§ 183.] ELEMENTARY PEINCIPLES. 309 
 
 production to testify, undoubtedly affects, if it does not 
 destroy his credibility, and it is for the jury to decide 
 whether he is in such a condition or not.^ But his having 
 been in that state at the time of an occurrence in regard to 
 which he testifies does not destroy his credibility. It un- 
 doubtedly impairs it; but if his evidence is corroborated, 
 or his memory of the transaction appears to be distinct and 
 clear, he is entitled to belief.^ 
 
 If a witness, after partial examination, leaves the court- 
 room and wilfully remains away, for the purpose of avoiding 
 further examination, his testimony already given should be 
 suppressed, as unworthy of belief ; ^ but the fact that he left 
 court after his examination, and that an attachment issued 
 against him is returned " not found," does not, as a pre- 
 sumption of law, necessarily prejudice his credibility, as 
 raising a presumption that he avoided further examination.* 
 
 § 183. — or his Manner and Appearance. — The man- 
 ner and deportment of witnesses is very commonly an impor- 
 tant indication of the existence or the want of sincerity. It is 
 peculiarly the province of the jury to judge of these matters, 
 and they should take into consideration the fact that to some 
 witnesses this public appearance is a matter of indifference, 
 while by many it is regarded with an apprehension produc- 
 tive of embarrassment and agitation, which to unskilful 
 observers may appear the result of insincerity. If the 
 witness testifies to facts incoherently and inconsistently, it 
 has been held that this goes to his credibility, and that if his 
 manner is very incoherent or inconsistent, the testimony 
 should be considered with great caution.^ But to the 
 writer's mind, the first duty of the jury in such a case would 
 be to endeavor to discover the cause of the incoherence or 
 inconsistency of the witness; i.e., whether it be caused by 
 nervousness merely, or by favoritism to one side of the issue 
 or intent to give false or misleading testimony. In any 
 event the presiding judge should not give to the jury his 
 own individual estimate of the appearance and manner of 
 the witness.^ 
 
 1 State V. McNinch, 12 So. Car. 89. * Coughlin v. People, 18 111. 266. 
 
 2 State V. Castello, 17 N. W. Kep. ^ Evans v. Lipscomb, 31 Ga. 71. 
 605. « Crutchfield v. Richmond &c. R. R. 
 
 SFlavell v. Plavell, 5 C. E. Gr. Co., 76 N. C. 320. 
 (N. J.) 211. 
 
310 CEEDIBILITY. [CHAP. XII. 
 
 § 184. or his Bias or Interest. — Notwithstanding 
 
 the general rule that when a witness testifies positively to a 
 fact, and his testimony is uncontradicted and unimpeached, 
 it is to be credited, an exception exists where the interest of 
 the witness is likely to affect his credibility, and especially 
 where his testimony, if believed, would shield him from a 
 charge of crime. In such a case, his testimony should be 
 submitted to the jury in like manner as if it had been contra- 
 dicted .^ So also, where such a witness, testifying under cir- 
 cumstances calculated to create a strong bias, states what is, 
 in its nature, incredible : in such a case his testimony is not 
 necessarily to be credited.^ But only the credibility of the 
 witness is affected, — not his competency,^ — and the jury 
 alone are the judges how far he is worthy of belief; for the 
 court to instruct them to disregard his testimony,* or to say 
 to them that a witness' testimony is entitled to greater 
 weight when against than when in favor of himself,^ or that 
 his being interested tends to discredit him,® is reversible 
 error. 
 
 § 185. or Relationship to Party calling him. — -It has 
 
 been laid down in one jurisdiction, that near relationship of 
 witnesses to parties litigant affects their credibility,'' but the 
 better opinion is that there is no rule of law requiring the 
 testimony of the relative of a party to be viewed with suspi- 
 cion ; its credibility is for the jury,^ especially in doubtful 
 cases. And where the witness swears positively, and is un- 
 impeached, his credit ought not to be destroyed on that 
 ground.^ Instructions to disregard his testimony are erro- 
 neous.^" 
 
 1 "Wohlfahrt v. Beckert, 92 N. Y. ' Ward v. Valentine, 7 La. Ann. 
 490; s. c. 12 Abb. (N. Y.) N. Cas. 184; TardlfE w. Baudoin, 9 Id. 127. 
 478 ; Robinson v. New York Central ^ Kan. Pac. E'y Co. v. Little, 19 Kan. 
 &c. R. E. Co., 20 Blatch. (U. S.) 338. 267. 
 
 2 United States c. Borger, 7 Fed. » Gangwere's Estate, 14 Pa. St. 417. 
 Rep. 193. 1' Potts V. House, 6 Ga. 324. 
 
 3 Newhall v. Jenkins,2 Gray (Mass.) For applications of these principles 
 562. to the testimony of the loife of a party, 
 
 * Commonwealth v. Putnam, 2 Allen see State v. Guyer, 6 Iowa, 263 ;' State 
 
 (Mass.) 301 ; Dailey v. State, 28 Ind. v. Rankin, 8 Id. 355 ; State v. Bernard, 
 
 285. 45 Id. 234. Of the parent or child of 
 
 ^ Douglas V. Fullerton, 7 111. App. a party, see People i'. Austin, 2 Edm. 
 
 102. (N. Y.) Sel. Cas. 54; Kavanagh u. 
 
 6 Pratt V. State, 56 Ind. 179. S. P., Wilson, 70 N. Y. 177. 
 Veatch v. State, Id. 584. 
 
§ 187.] ELEMENTARY PRINCIPLES. 311 
 
 § 186. Credibility of Parties in Civil Actions. — Another 
 exception to the general rule that the testimony of an un- 
 impeached and uncontradicted witness cannot be disregarded 
 by the court and jury, is that where the witness is a party 
 to the suit his credibility is always a question for tlie 
 juiy, who may, if they see fit, find a verdict against his un- 
 contradicted evidence.^ They are no more bound to believe 
 what he says on the cross, tlian what he says on the direct 
 examination.^ Thus, the issue being infancy, the jury are 
 not bound to believe the testimony of a party as to his own 
 age.^ The jury only, however, and not the court, may dis- 
 card a party's testimony as unworthy of belief.* His testi- 
 mony goes to the jury as evidence, not as an admission of 
 facts.^ But the adverse party is entitled to an instruction 
 that in weighing the credibility of the witness, the jury 
 should take into consideration his position as a party to the 
 suit.s 
 
 In no event should a presumption be made against him 
 because he does not testify for himself. Various motives 
 may influence a party to forego becoming a witness in his 
 own behalf, besides the consciousness that the facts within 
 his knowledge, if disclosed, would make against his own side 
 of tlie case, and in favor of that of his adversary.'' 
 
 § 187. of Agents and Servants. — The servants or 
 
 agents of a party are competent witnesses for him, as we 
 have heretofore seen,^ and the amount of credit to be given 
 to their testimony is a question for the jury, and the jury 
 only, to pass upon. The court has no right to instruct them, 
 or even to suggest to them that such witnesses have any 
 such interest as will affect their testimony.^ In Louisiana, 
 
 1 Nicholson V. Conner, 8 Daly (N. Y.) (N. Y.) 449; Lights' appeal, 24 Pa. 
 212 ; Laramore v. Minish, 43 Ga. 282. St. 180 ; Dravo v. Fabel, 25 Fed. Rep. 
 
 2 Bridger v. "Walker, 40 Tex. 1.35. 116. 
 
 2 Klason v. Kieger, 22 Minn. 59. Whether the interposing by a de- 
 '' Prowattain v. Tindall, 80 Pa. St. fendant of a legal, thougli immoral 
 295. defence; e.g., that his purchase of the 
 * Matthews v. Story, 54 Ind. 417. liquors sued for was unlawful, will im- 
 ^ Hill V. Sprinkle, 76 N. C. 353. pair his credit as a witness, see Husted 
 ' Lowe V. Massey, 62 111. 88. v. O'Donnell, 118 Mass. 424. 
 As to the credibility of a party ^ Supra, §§ 73, 76. 
 when called as a witness by the ad- ^ Marquette &c. E. E. Co. v. Kirk- 
 verse party, see Darling v. Hurst, 39 wood, 45 Mich. 51. 
 Mich. 765; Roberts v. Gee, 15 Barb. 
 
312 CREDIBILITY. [CHAP. XXt. 
 
 however, it is held that in actions against common carriers 
 for injury to goods delivered, thougli the court will not dis- 
 regard, still it will receive with allowance, the testimony of 
 their servants.^ 
 
 But the jury may consider the fact that the relation of 
 employer and employ^ existed between a witness and a cor- 
 poration that is defendant in the action, to see if, from his 
 manner in testifjang, such relation influenced his testimony, 
 and determine what effect is to be given to his testimony .^ 
 
 § 188. of Accomplices. — Accomplices being com- 
 petent witnesses, ifc appears to follow, as a necessary conse- 
 quence, that if the jury believe their testimony, the prisoner 
 may be legally convicted upon it, without extrinsic confir- 
 mation ; and it is accordingly well settled by a long line 
 of decisions both in England and America, that a conviction 
 obtained upon the uncorroborated testimony of an accomplice 
 is strictly legal.^ But bearing in mind the situation of the 
 witness, his testimony ought always to be received with 
 great jealousy and caution. He gives it under the strongest 
 inducements to deceive, and it is to be scanned by the jury 
 with severe scrutiny, in view of the peculiar circumstances 
 surrounding the witness.* The question of credibility 
 should, in such cases, be submitted to the jury with proper 
 instructions ® as to such surrounding circumstances ; ^ or the 
 court may tell them, in a proper case that the witness' testi- 
 mony is not to be regarded, unless confirmed, in some part 
 
 1 Bond V. Frost, 8 La. Ann. 297. v. Brown, 3 Strobh. (S. C.) 508 ; Peo- 
 
 ' Illinois Cent. K. Co. v. Haskins, pie v. Gibson, 53 Cal. 601; State u. 
 
 (III.) 2 N. E. Rep. 654. Russell, 38 La. Ann. 1.35 ; State v. 
 
 ,8 English cases. R. r. Atwood, Leach Litclifield, 58 Me. 267 ; White v. State, 
 
 C. C. 521; R. u. Durham, Id. 538; 1 52 Miss. 216; Royal Ins. Co. u. Noble, 
 
 Hale P. C. 303; R. v. Dawber, 3 Stark. 5 Abb. (N. Y.) Pr. n. s. 54; State v. 
 
 34; R. V. Jarvis, 2 M. & Rob. 40. Potter, 42 Vt. 495; State v. Betsall, 
 
 See also R. v. Jones, 2 Campb. 132 ; 11 W. Va. 703. 
 
 31 How. St. Tr. 325 ; 7 T. R. 609 ; R. i People v. Haynes, 55 Barb. (N. Y.) 
 
 V. Hastings, 7 Car. & P. 152. 450 ; s. c, 38 How. Pr. ,369 ; People i: 
 
 American cases. People v. Dyle, 21 Hare (Mich.) 24 N. W. Rep. 843 ; 
 
 N. Y. 578 ; UlnieK v. State, 14 Ind. 52 ; White v. State, 52 Miss. 216 ; Fitzcox 
 
 Stocking V. State, 7 Ind. 326; Com- v. State, Id. 923; State «. Jones, 64 
 
 raonwealth v. Grant, Thach. (Mass.) Mo. 391. Compare Irvin v. State, 1 
 
 Cr. Cas. 438 ; George v. State, 39 Miss. Tex. App. 301. 
 
 570; Coats v. People, 4 Park. (N. Y.) 6 state v. Litchfield, 58 Me. 267. 
 
 Cr. 662 ; Wixson v. People, 5 Id. 119; 6 gtate v. King, 16 Nev. 307. 
 Allen V. State, 10 Ohio St. 287; State 
 
§ 189.] ELEMENTARY PRINCIPLES. 313 
 
 of it at least, by unimpeachable evidence ; ^ or that they are 
 to receive his testimony and give it the same effect as that 
 of any other witness, so far as they believe him.^ But such 
 instructions can only be given in jurisdictions where the 
 judge is at liberty to advise the jury upon the evidence,^ and 
 even then a refusal to instruct them not to convict without 
 corroboration is not reversible error.* 
 
 On the other hand, the rule in New York is, that inasmuch 
 as verdicts rendered upon the uncorroborated evidence of 
 confederates are of doubtful propriety, they will not, in 
 general, be allowed to stand if the witness be otherwise im- 
 peached ; ^ and in Wisconsin, in such cases, the presiding 
 judge is clothed with discretion to direct an acquittal or not, 
 as he sees fit — his refusal to do so, or to set aside the verdict 
 affording no ground for reversal.^ The statute books of 
 many of the states contain the existing rule upon this sub- 
 ject, and it will also be further examined when we come to 
 consider the cases upon the subject of the corroboration 
 of witnesses sought to be impeached." 
 
 § 189. of Spies and Informers. — This class of wit- 
 nesses cannot be said to come within the description of 
 accomplices so as to be discredited as such, although, per- 
 haps, on other grounds, no small degree of prejudice or 
 disfavor may attach to them. Whatever may be the merit 
 or demerit of their conduct, they are not, strictly speaking, 
 accomplices.^ Thus it has been held that " spies and in- 
 formers are not odious to the law, nor is their evidence to 
 be discredited as coming from that source." ^ And a detec- 
 tive who joins a criminal organization for the purpose of 
 exposing it, and bringing criminals to punishment, and who 
 honestly carries out that design, is not an accessory before 
 the fact, although he may have encouraged and counselled 
 
 1 United States v. Kessler, Baldw. ^ The question of the effect of the 
 (U. S.) 22. expectation of reward or share in the 
 
 2 Sinclair v. Jackson, 47 Me. 102. penalty, upon their competency, has 
 ' State 0. Betsall, 11 W. Va. 703, already been considered. Supra, § 
 
 which he cannot do in West Virginia. 75. 
 * State V. Potter, 42 Vt. 495. » Town of St. Charles v. O'Mailey, 
 
 5 People V. Haynes, 55 Barb. (N. Y.) 18 111. 407. 
 
 450; s. c. 38 How. Pr. 369. A "spotter" is not an accomplice. 
 
 6 Black V. State, 16 Chic. L. N. 202 ; State v. Hoxsie, (R. I.) 1 East. Rep. 
 s. c, 6 Wis. Leg. News, No. 131. 441 ; nor is a private detective, De 
 
 ' Infra, Chap. XVL Long v. Giles, 11 111. App. 33. 
 
314 CKEDIBILITY. [CHAP. XII. 
 
 parties who were about to commit crime, if in so doing he 
 intended that they should be discovered and punished. His 
 testimony, tlierefore, is not to be treated as that of an in- 
 famous witness ; ^ and an instruction to the jury that the 
 testimony of such a witness sliould be looked upon with 
 suspicion, is erroneous.^ 
 
 § 190. of Defendants in Criminal Cases. — (1) In 
 
 general. Where, taking advantage of the provisions of the 
 statutes enabling accused persons to testify, a defendant in 
 a criminal case goes upon the witness-stand, his testimony 
 is subject to the like tests, for the purpose of determining tlie 
 reliance to be placed upon it, as that of other witnesses. 
 In all cases the interest or bias which may sway a witness 
 to pervert the truth, may be taken into consideration for 
 the purpose of determining what credit shall be given to his 
 evidence.^ " Such a person, when introduced as a witness 
 in his own behalf, is to be examined and cross-examined 
 precisely as other witnesses ; and he may likewise be im- 
 peached in precisely the same mode. The accused, as a 
 witness, differs from other witnesses only in the fact that he 
 is the defendant charged and being tried for crime, which 
 may be taken into consideration by the jury in passing on 
 his credibility ; but his testimony must be treated the same 
 as that of anj^ other witness ; nor can it be treated, as a 
 matter of law, as not having the same effect and weight 
 
 1 Campbell v. Commonwealth, 84 to be absolutely rejected, is to be re- 
 Pa. St. 187. S. P., People v. Barrie, 49 ceived with great caution, and scru- 
 Cal. 342; Wright u. State, 7 Tex. pulously and minutely scrutinized. 
 App. 574. s Chambers v. People, 105 111. 409. 
 
 2 De Long v. Giles, 11 111. App. 33. S. P., State v. McGinnis, 76 Mo. 326; 
 But see Commonwealth ,.. Downing, State v. Sanders, Id. 35. Where there 
 4 Gray (Mass.) 29, where it is held was no conflict as to the fact of the 
 that while one who purchases intoxi- homicide by the defendant, but the 
 eating liquor, sold contrary to law, defendant, who was examined in his 
 for the express purpose of prosecuting own behalf, and who was the only 
 the seller for an unlawful sale, is not eye-witness of tlie transaction, testified 
 an accomplice, and is a competent to facts which would amount to justi- 
 witness on the trial of the seller, still fication ; and it was claimed, he being 
 the jury should be instructed to re- the only witness, that the evidence 
 ceive his evidence witli the greatest did not justify the verdict, it was held 
 caution and distrust; and Anonymous, it was for the jury to determine how 
 17 Abb. (N. Y.) Pr. 48, where it is much of the statement of the defend- 
 said that the testhnony of a witness, ant they should believe, and how far 
 employed to watch and detect a hus- it would carry conviction to their 
 band or wife suspected of adultery, minds. People v. Strange, 61 Cal. 496. 
 though it is competent, and ought not 
 
§ 190.] 
 
 ELEMENTAEY PRINCIPLES. 
 
 315 
 
 as that of other witnesses. Whether it should or not is a 
 question of fact for the jury to decide, and this is the rule 
 in regard to all the other witnesses." ^ The jury may wholly 
 disregard it if, from the entire evidence, they believe it to be 
 untrue ; and they are at liberty, if they believe it to be true, 
 to give it credence and weight, and act upon it to the extent 
 of his acquittal.^ But however incredible his story may be, 
 he is entitled to an instruction to the jury, based upon the 
 hypothesis that it is true,^ and it is error for the trial court 
 to refuse to permit his counsel to comment upon it in his 
 address to the jury.* 
 
 (2) Instructions of the court as to defendants testimony. As 
 a general rule, the presiding judge in a criminal case should 
 abstain, in his charge to the jury, from commenting upon the 
 weight of defendant's testimony. The credit to be given to 
 it " should be left (where the statute places it) solely with 
 the jury." 5 But this rule has not been adhered to by the 
 courts. Thus, in one case, a charge to the jury in respect to 
 the weight and effect proper to be given to defendant's 
 evidence, that " in addition to noticing his manner, the 
 
 ^ Chambers y. People, st(/3ra. Contra, 
 as to the last point, State v. Cooper, 
 71 Mo. 436, where it is said that it 
 cannot be declared, as a matter of law, 
 that the testimony of a defendant on 
 a criminal trial, is entitled to the same 
 weight as it would be if he were testi- 
 fying for himself in a civil suit. 
 
 2 Bartholomew v. People, 104 111. 
 601. In People v. Morow (60 Cal. 142) 
 the following instruction was held 
 proper : " The defendant has offered 
 himself as a witness, on his own be- 
 half, on this trial, and in considering 
 the weight and effect to be given his 
 evidence, in addition to noticing his 
 manner and probability of his state- 
 ments, taken in connection with the 
 evidence in the cause, you should con- 
 sider his relations and situation under 
 which he gives his testimony, the con- 
 sequence to him relating from the 
 results of this trial and the induce- 
 ments and stipulations which would 
 ordinarily influence a person in his 
 situation. You should carefully de- 
 termine the amount of credibility to 
 
 which his evidence is entitled, if con- 
 vincing and carrying with it a belief 
 in its truth, to act upon it ; if not, you 
 have a right to reject it ; " the court 
 holding that the defendant, in a 
 criminal case, testifying in his own 
 behalf, occupies a relation to the case 
 diiferent from that occupied by any 
 other witness. "It is only by virtue of 
 a provision of the code that he is per- 
 mitted to testify at all, and it is mani- 
 fest that he labors under the strongest 
 temptation to which any witness could 
 be subjected. It is not error, there- 
 fore, for the court to call the atten- 
 tion of the jury to that circumstance, 
 and we see no error in the instruction 
 complained of." To the same effect 
 see State v. Maguire, 69 Mo. 197 ; 
 Duffin V. People, 107 111. 113 ; Beasly 
 V. State, 71 Ala. 328; Blackburn v. 
 State, Id. 319 ; United States <,-. Bor- 
 ger, 19 Blatchf. (U. S.) 249. 
 
 8 People V. Keefer, 2 West Coast 
 Eep. 878. 
 
 4 Beasly v. State, 71 Ala. 328. 
 
 = State V. Stewart, 9 Nev. 120. 
 
316 CREDIBILITY. [CHAP. XII. 
 
 probability of his statements, taken in connection with the 
 evidence in the cause, you should consider his relation and 
 situation under which he gives his testimony, and the conse- 
 quences to him relating from the results of this trial, and all 
 the inducements and temptations which would ordinarily 
 influence a person in his situation. ... If convincing and 
 carrying with it a belief in its truth, act upon it , if not, you 
 have a right to reject it," was sustained.^ In another, the 
 defendant asked, but was refused the instruction " that the 
 testimony of defendant. Cooper, in his own behalf, has as 
 much credibility attached to it as if he were testifying in a 
 similar manner in a civil case, and his truthfulness or un- 
 truthfulness should be tested in the same way as anj' other 
 witness." The jury had previously been told that " they are 
 the sole judges of the credibility of witnesses, and in passing 
 upon the credit to be given any witness (defendant included), 
 they may take into consideration the means of knowledge, 
 the relation to the transaction, and the interest of the wit- 
 ness." And this was held correct.^ In Massachusetts, where 
 defendant requested an instruction that the presumption was 
 in favor of his veracity, like any other witness, but the judge 
 refused and instructed the jury that there was no presump- 
 tion either way as to the truthfulness of a defendant's testi- 
 mony, and that it was to be allowed such weight as in their 
 judgment it ought to have, taking all the circumstances of 
 the case and other evidence into consideration, this was held 
 correct.^ 
 
 "Where the language of the statute was " the credit to be 
 given to his testimony being left solely to the jury under the 
 instructions of the court," the court held that this did not 
 establish a new rule for defendants in criminal cases, but 
 simply applied to them a rule which exists as to other 
 witnesses ; that, in the absence of a request for instruction 
 from either side, the court need not, of its own motion, in- 
 struct the jury as to the credit to be given to his testimony.* 
 
 1 People V. Cronin, 34 Cal. 191. To » Com. v. Wright, 107 Mass. 403. 
 same effect, State v. Maguire, 09 Mo. * People v. Rodundo, 44 Cal. 538. 
 197; State v. Zorn, 71 Id. 415; St. In Creed v. People, 81 111. 565, the 
 
 Louis V. State, 8 Neb. 405. court, upon request, charged : " The 
 
 ^ State V. Cooper, supra ; limiting jury have no right to disregard the 
 
 and explaining, State v. Swain, 68 Mo. testimony of the defendants or either 
 
 608. of them through mere caprice or 
 
§ 191.J ELEMENTAKY PEINCIPLES. 317 
 
 § 191. Rules for Weighing Testimony. — The jurors being 
 the unfettered, illimitable, and final judges of the credibility 
 of the various witnesses who testify before them, it would 
 seem to follow that no certain rules can be laid down for the 
 Aveighing of testimony, which would be binding upon them. 
 It is well settled, liowever, that they cannot act upon their 
 own private knowledge of any fact, for then it could not be 
 known whether the verdict would be for or against the evi- 
 dence.^ And whether binding on the jury or not, the fact 
 remains that many so-called rules for weighing testimony 
 have been laid down by the courts, some of them engrafted 
 with so many "CKceptions" that but little of the original 
 principle remains. Thus, it has been held to be a general 
 rule that every presumption is in favor of the credibility of 
 an unimpeached (or unsuccessfully impeached) witness;^ 
 but it is said that the jury should not be instructed as a rule 
 of law to indulge in this presumption ; they are to judge of 
 the propriety of so doing in the particular case.^ If the 
 statements of such a witness are grossly improbable, the jury 
 may disregard his testimony even though uncontradicted and 
 unimpeached.* They may take into consideration his oppor- 
 ■junity of knowledge, the strength of his memory, his bias, 
 and his manner and appearance while testifying, but an 
 
 merely because they are defendants, jointly indicted and tried, as witnesses, 
 
 The law makes them competent wit- each in his own behalf, told the jury 
 
 nesses, and the jury are bound to con- that they could not believe them 
 
 sider their evidence, and are the sole both, because they were wholly incon- 
 
 judges of their credibility." The sistent as to the principal facts in the 
 
 court modified it by adding ; " Yet case ; it was held there was no error, 
 
 the jury are under no legal obligation State v. McLane, 15 Nev. 345. 
 
 to believe them, if, from all the facts ^3 Stark. Ev. 449; 3 BI. Com. 
 
 proved in the case, they think their 375. In Texas a criminal conviction 
 
 testimony not reliable." It was held was reversed because of the court's 
 
 that there was no error in the modifi- failure to reply to the following ques- 
 
 cation. The degree of credit to which tion asked by the jury : " Can we 
 
 a prisoner examined as a witness is judge a witness just by what he says 
 
 entitled, is to be decided by the jury, on the stand, and not by what we 
 
 and not the court, and it is error for know of him privately ? " Wharton 
 
 the court to instruct the jury to wholly v. State, 45 Tex. 2. 
 
 disregardhistcstimony when his cross- 2 Cgmstock v. Kayford, 20 Miss, 
 
 examination has developed the fact 369. 
 
 that he had served a term in the state ^ State v. Jones, 77 N. C. 520. 
 prison for felony. Newman u. People, * Elwood v. Western Union Tel. 
 63 Barb. (N. Y.) 630. In another Co., 45 IS. Y. 549; Stilwell v. Car- 
 case, where the court, in referring to penter, 2 Abb. (N. Y.) N. Cas. 2.38. 
 tlie testimony of two defendants 
 
S18 CUEDIBILITY. [CHAP. XII. 
 
 instruction by the court that they may disbelieve any testi- 
 mony which, under all the circumstances of the case, is not 
 credible, is too comprehensive, for the jury cannot be allowed 
 to determine for themselves that other circumstances, not 
 within legal contemplation, tending to impeach the witness, 
 show that his evidence is impeached, and therefore entirely 
 disregard it.^ 
 
 The jury may draw an unfavorable inference from the 
 conduct of a party in omitting to testify himself, or to 
 call witnesses present in court, and who have knowledge 
 of material facts.^ And where they find themselves left 
 in a reasonable and real doubt as to the credibility of a 
 witness, they should disregard his testimony, and give such 
 a verdict as they would have done if he had not been a 
 witness.^ But the poverty of a witness does not diminish 
 or his wealth increase his credibility ; * nor is it to be de- 
 cided by the number of others who may testify for or 
 against it, but by their respectability, intelligence, consist- 
 ency, and means of information.^ If a witness admitted to 
 be truthful has been examined at considerable intervals, his 
 earliest answers are to be most relied on, as nearest to the 
 transaction testified about.^ The foregoing and all other 
 rules as to arriving at a conclusion as to the credibility of 
 witnesses are the same in criminal as in civil cases.'' 
 
 § 192. The Maxim " falsus in uno falsus in omnibus." — In 
 applying this maxim, taken from the civil law, some confu- 
 sion has arisen in the minds of judges in charging juries. 
 The true rule undoubtedly is, that if a witness wilfully and 
 knowingly testifies falsely to any material fact in the case, 
 the jury are authorized to discredit and reject the whole of 
 his testimony ; * and the jury may be so instructed.^ But the 
 
 1 Hartford Life &c. Ins. Co. v. Gray, 583. But see Devries v. Phillips, 63 
 80 111. 28. In Georgia, it seems the N. C. 53. 
 
 jury may believe so much of the evi- 8 Miller v. Eichardson, 2 Ired. 
 
 dence of a party who is the only wit- (N. C.) L. 250. 
 
 ness as supports the case of the oppo- * Van Duzor v. Allen, 90 111. 499. 
 
 site party, and disbelieve evidence in ^ Kinchelow v. State, 5 Humph. 
 
 rebuttal. Hardee v. Williams, 30 Ga. (Tenn.) 9. 
 
 921. 8 Parke v. Poster, 26 Ga. 465. 
 
 2 Whitney v. Bayley, 4' Allen " Lewis v. Lewis, 9 Ind. 105. 
 (Mass.) 173; Perkins v. Hitchcock, ' State v. Mix, 15 Mo. 153; Gillet 
 49 Me. 468 ; Seward v. Garlin, 33 Vt. v. Wimer, 23 Mo. 77 ; State v. Schoen- 
 
 3 O'Eourke v. O'Rourke, 43 Mich. 58. 
 
§ 103.] 
 
 ELEMENTAEY PEIITCIPLES. 
 
 319 
 
 trouble has been that the courts have, in many cases, omitted 
 to tell the jury that such false testimony must be wilfully 
 and knowingly given.^ The maxim does not apply to false 
 testimony the giving of which may have been caused by a 
 mistake on the part of the witness ; ^ nor to cases of mere 
 contradiction.^ The jury are not compelled to disbelieve the 
 witness however false, and wilfully so, his testimony may be 
 in some respects.* It is to be suspected, but not necessarily 
 rejected as a whole.^ He may be corroborated in respect to 
 portions of his testimony;'' and even in the case of such a 
 witness, the question of credibility remains wholly with the 
 jury,'^ who may, if they choose, yield entire credit to some of 
 his statements and disbelieve others,^ crediting siich part as 
 they may deem auxiliary to the ascertainment of truth.® 
 
 § 193. Positive and Negative Testimony. — Another general 
 rule for weighing testimony is that the testimony of one 
 witness who speaks positively and affirmatively to a fact is 
 entitled to more consideration than that of several equally 
 credible witnesses who testify negatively only.^" In other 
 
 wald, 31 Mo. 147 ; Paulette v. Brown, 
 40 Mo. 52; People v. Soto, 59 Cal. 
 367; Dell v. Oppenheimer, 9 Neb. 
 454; Mann v. Arkansas Valley &c. 
 Co., 24 Fed. Eep. 261 ; Minlch v. Peo- 
 ple, 8 W. C. Eep. 580. Even if the 
 fact be immaterial. Huber v. Teuber, 
 3 MacArtb. {D. C.) 484. 
 
 1 People V. Strong, 30 Cal. 151; 
 Gottlieb V. Hartman, 3 Colo. 53; 
 United States Express Co. c. Hutch- 
 ins, 58 111. 44; Pope i'. Dodson, Id. 
 360 ; Chicago &c. E. E. Co. v. Boger, 
 1 111. App. 472 ; Quinn v. Eawson, 5 
 Id. 130; Swan v. People, 98 111. 010; 
 Callanan v. Shaw, 24 Iowa, 441 ; State 
 V. Peace, 1 .Jones (N. C.) L. 251. 
 
 2 State V. Elkins, 63 Mo. 159 ; 
 Shenuit v. Brueggestradt, 8 Mo. App. 
 46; Koelmckeu. Eoss, 16Abb. (N.Y.). 
 Pr. N. s. 345. See also Taft v. Kyle, 
 15 Nev. '416. 
 
 3 Galliher v. People, 82 111. 145. 
 But the witness must, it seems, have 
 been contradicted, or his falsity will 
 not appear. Swann v. People, 98 111. 
 610. 
 
 * Pennsylvania Co. o. Conlan, 101 
 
 111. 93. Compare Deering v. Metcalf, 
 74 N. Y. 501. 
 
 5 Finley v. Hunt, 56 Miss. 221 ; 
 People V. Hicks, 53 Cal. 354; People 
 V. Sprague, Id. 491. 
 
 ^ Goeing v. Ourhouse, 95 111. 346. 
 
 ' Schuek V. Hagar, 24 Minn. 339. 
 
 " Lewis V. Hodgdon, 17 Me. 267 ; 
 Blanchard v. Pratt, 37 111. 243 ; Par- 
 sons V. Huff, 41 Me. 410; Merrill c. 
 Whitefield, Id. 414; State v. Williams, 
 2 Jones (N. C.) L. 257. 
 
 8 Mead v. McGraw, 19 Ohio St. 55 ; 
 overruling Stoffer v. State, 15 Id, 47. 
 See also State ;,•. Brantley, 63 N. C. 
 518; State v. Smith, 8 Jones (N. C.) 
 L. 132; Mercer v. Wright, 3 Wis. 
 645. The maxim is said not to be a 
 rule of evidence in North Carolina. 
 State V. Spencer, 64 N. C. 316. 
 
 i» Stitt V. Huidekopers, 17 Wall. 
 (U. S.) 384; Kennedy v. Kennedy, 2 
 Ala. 571; Pool v. Devers, 30 Ala. 
 672; Todd v. Hardie, 5 Ala. 698; 
 Johnson v. State, 14 Ga. 55 ; Hepburn 
 c. Citizens' Bank, 2 La. Ann. 1,007 ; 
 Auld ).. Walton, 12 Id. 129; Delk v. 
 State, 3 Head (Tenn.) 79 ; Jackson i^ 
 
320 CEEDIBILITY. [CHAP. XII. 
 
 words, where one witness swears positively to a fact, and 
 another of equal credibility contradicts it, the jury are not to 
 be instructed that the fact is not proved.^ In many cases 
 the want of means or opportunity in the witness of knowing 
 the matters in controversy, his actual inattention, the absence 
 of circumstances likely to excite his attention, or the exist- 
 ence of circumstances likely to divert it, are considerations 
 which greatly diminish the effect of negative testimony.^ 
 But this rule also has its exceptions, real or seeming. Thus 
 where two persons listen with equal attention, and j-et con- 
 tradict each other as to the fact of certain words being 
 spoken, the negative may equal the affirmative testimony.^ 
 And so it may, when one witness swears he had a certain 
 conversation with another, and that other insists that such 
 conversation never took place. This is a direct contradic- 
 tion, and the rule does not apply.* Inherent improbability, 
 also, in positive testimony will warrant its rejection, whethet 
 contradicted or not.^ And the negative testimony of wit- 
 nesses familiar with a certain commodity, from long dealing 
 in it, that they never saw any of a specified brand, may be 
 weighed against testimony of another witness, that he had 
 
 Loomis, 12 Wend. (N. Y.) 27; Coles him to L., who swore that he did not 
 
 1-. Perry, 7 Tex. 109 ; Ealphi). Chicago recollect or believe that it was, credit 
 
 &c. Ry. Co., 32 Wis. 177; Harris v. was given to S. Flood v. Thomas, 
 
 Eell, 27 Ala. 520; Matthews v. Poy- 5 Mart. (La.) s. s. 560. See also 
 
 thress, 4 Ga. 287. Berg i: Chicago &c. Ry. Co., 50 Wis. 
 
 1 Johnson i,. Whiddin, ,S2 Me. 230. 419. 
 
 Three witnesses swore explicitly to a ^ Johnson v. Scribner, 6 Conn. 188, 
 
 set of words spoken in a ball-room, 189, per Hosmer, C. J. See also 
 
 where there was a noise from dancing. State v. Gates, 20 Mo. 400. 
 
 music, and confusion. Eleven others, * Reeves v. Poindexter, 8 Jones 
 
 who were in the room at the time, (N. C.) L. 308. 
 
 testified that they did not hear such ' Blankman v. Vallejo, 15 Cal. 638. 
 
 words, and that, in their opinion, they In Illinois it is held that the testimony 
 
 should have heard them if uttered, of a witness having a full opportunity 
 
 The jury having found against the of knowing that a person did not 
 
 speaking of the words, a new trial strike a blow is affirmative evidence, 
 
 was granted, the court holding the and entitled to weight as such, 
 
 affirmative testimony decisively en- Coughlin v. People, 18 111. 266. And 
 
 titled to the greater weight. John- in Massachusetts it is said that it is 
 
 son V. Scribner, 6 Conn. 185. not true as a matter of law that nega- 
 
 2 Johnson v. Scribner, supra. And tive evidence may not be sufficient in 
 see Woodcock v. Bennett, 1 Cow. fact to counterbalance the positive 
 (N. Y.) 711; and Carroll v. Charter testimony of a single witness. Camp- 
 Oak Ins. Co., 1 Abb. (N. Y.) App. bell v. New England &o. Ins. Co., 98 
 Dec. 316. Where S. swore positively Mass. 381. 
 
 that an account was presented by 
 
§ 194.] ELEJIENTARY PRINCIPLES. 321 
 
 seen it, in tietermining whether such brand existed, and was 
 known in the market.^ So, also, the rule is not applicable 
 where one party to a verbal lease testifies that it did, and the 
 other that it did not, contain a certain grant.^ Sometimes 
 testimony negative in fact is held to be affirmative within 
 the rule ; thus the testimony of persons, who, at the time of 
 an accident at a railroad crossing, were Avithin thirty yards 
 of it, that they were in a situation to have heard a bell ring 
 or whistle sound if there had been any rung or sounded, and 
 that they did not hear anj', cannot be regarded as negative 
 testimony.^ 
 
 § 194. Conflicting Testimony. — There is often no certain 
 standard by which the credit of conflicting witnesses can be 
 ascertained. Different courts and juries would entertain 
 different opinions, and each must judgp for themselves.* 
 The testimony of all the witnesses, in such cases, goes to 
 the jury, who must determine the weight due to each; ^ and 
 this, even though the discrepancy be between witnesses on 
 one side only.'' It is generally held error for the court to 
 instruct the jury as to the relative credibility of classes of 
 conflicting witnesses, as being an invasion of their province." 
 So held where the court said to the jury, " Both witnesses 
 are gentlemen ; it is a matter of memory." ^ But it has been 
 held not to be erroneous for the court to instruct the jury in 
 a case depending on the credibility of witnesses, that the 
 testimony of a witness given in open court, in the presence of 
 the opposite party and the other witnesses, and where the 
 witness is subject to a thorough cross-examination, and 
 where the court or jury have the opportunity of observing 
 his manner, appearance, and conduct, is entitled to greater 
 
 ' Pollen V. Leroy, 10 Bosw. (N. Y.) 31, where Ewing, C. J., said, " An 
 
 38. indictment does not fall because one 
 
 2 Sobey v. Thomas, 39 Wis. 317. witness differs from another in points 
 
 ^ Rockford &c. R. E. Co. v. Hillmer, more or less material, or even in some 
 
 72 111. 235. See also on this point, directly contradicts him." See also 
 
 Coughlin V. People, 18 111. 266 ; and Bradley v. Rieardo, 8 Bing. 57 ; ~ 
 
 generally, Bemis v. Becker, 1 Kan. Beauchamp v. Cash, Bowl. & By. 
 
 226; State a. Johnson, 1 Vr. (N. J.) N. P. 3. 
 
 452. ' Nelson v. Vorce, 55 Ind. 455. 
 
 * People V. Superior Court, 5 Wend. ^ McKae v. Lawrence, 75 N. C. 289. 
 
 (N.Y.) 126. See also Whitten v. State, 47 Ga. 
 
 ^ Doe d. Jones v. Pulgham, 2 Murph. 297 ; Johnson v. New York &e. R. E. 
 
 (N. C.) 364, 367, 368. Co., 39 How. (N. Y.) Pr. 127. 
 
 « State V. Potts, 4 Halst. (N. J.) 26, 
 
322 CREDIBILITY. [CHAP. XII. 
 
 weight than the evidence of a witness embodied in a deposi- 
 tion, taken in private, and remote from the court and jury, 
 and where all the ordinary tests of truth cannot be applied. i 
 
 So, also, the witness whose position gave him the best 
 opportunity for observance and knowledge is to be given the 
 greater credit in cases of conflict of evidence.^ On this prin- 
 ciple, where the testimony was conflicting as to whether 
 a building had been completed according to conti'act, that of 
 the architect was accorded tlie greater weight ;^ and where 
 the dispute was as to the proper amount of damages to be 
 assessed for a right of way across a farm, the testimony of 
 farmers was preferred to that of persons engaged in other 
 pursuits.* 
 
 Again, in a proper case, the jury may take into considera- 
 tion the appearance on the stand, of the discordant witnesses, 
 their business competency, care, and habits, as disclosed by the 
 evidence;^ and the fact whether the witnesses on the same 
 side agree, one with another, may be considered.'' So, also, 
 where two witnesses contradict each other, both having 
 previously given their deposition with regard to the same 
 matter, credit will be given to the one who is sustained by his 
 previous testimony, rather than to him who differs therefrom 
 in material points.'' 
 
 Another rule is that a disinterested witness is entitled to 
 more confidence than an interested or biassed one with 
 whose testimony his own conflicts. This rule is often 
 applied in actions against a master for the negligence of 
 his servants.^ But the courts are averse to allowing the 
 jury to be instructed upon this point, preferring to leave 
 the propriety of applying the rule to be discovered by the 
 jur}', without assistance.^ 
 
 1 Carver r. Louthain, 38 Ind. 530. who had most interest in noticing and 
 S. P., Mathilde v. Levy, 24 La. Ann. remembering the facts as to whicli he 
 421. lias testified, should be preferred, was 
 
 2 Barrett v. 'WilliamsGn, 4 McLean disapproved. 39 Ga. 597, 603. 
 
 (U. S.) 589 ; Hitt v. Eush, 22 Ala. 563 ; 5 pirgt jjat. Bank v. Haight, 55 111. 
 
 Durham v. Holeman, 30 Ga. 619. 191. (A suit against a bank for an 
 
 8 Tucker v. Williams, 2 Hilt. (N. Y.) alleged error of the paying teller.) 
 562. 6 xiie Petrel, 1 Newb. Adm. 45. 
 
 * Jacksonville &c. R. E. Co. v. "< The Indi.ana, 1 Newb. Adm. 115. 
 Caldwell, 21 111. 75. But in Phillips 8 Chicago &c. E. E. Co. v. Triplet!, 
 
 V. Williams, an instruction that as 38 111. 482. 
 between several witnesses, the one ^ The court instructed the jury that 
 
§ 194.J ELEMENTARY PRINCIPLES. 323 
 
 Another rule, to be received under many qualifications 
 and applied with great caution, is, that if witnesses concur 
 in proof of a material fact, they ought to be believed in 
 respect to that fact, whatever may be the other contradic- 
 tions in their testimony .^ So the testimony of one of two 
 contradictory witnesses, who is fully sustained in respect 
 to facts of which other witnesses are cognizant, will be 
 credited ; and that of the other, who is contradicted upon 
 important and material facts by the unimpeached testimony 
 of other witnesses will be disregarded.^ 
 
 Where the conflicting witnesses are equally positive, intel- 
 ligent, and candid,^ are alike unimpeached, and have equal 
 opportunities of obtaining information, the testimony of the 
 greater number — the preponderance of evidence — must 
 prevail ; * and the same is the rule where circumstances of 
 suspicion attach to the credit of the witnesses on both sides.^ 
 But it has been said that the preponderance of testimony 
 before a jury, in a civil case, does not depend merely upon 
 the number of witnesses.^ 
 
 Where the parties to the suit, testifying each in his own 
 behalf, contradict each other, the jury are to determine which 
 one should be believed.'^ It is error to withhold from them 
 the question of relative credibility in such a case,^ or to 
 instruct them to find for one side or the other.^ But where 
 
 when two witnesses swear differently, not usually be as honest and candid 
 
 and one is a, disinterested witness, as one not so." Greer v. State, 53 
 
 and the other a party to the suit, then, Ind. 720. 
 
 other things being equal, the evidence i The Santissima Trinidad, 7 Wheat. 
 
 of the disinterested witness should (U. S.) 283. 
 
 prevail over that of the party to the ^ Fox v. Matthews, 33 Miss. 433. 
 
 suit. It was held that this language, ^ Townsend Manuf. Co. v. Foster, 
 
 though not approved, would not jus- 51 Barb. (N. Y.) 346. 
 
 tify a reversal of judgment. Sullivan * Vaughan o. Parr, 20 Ark. 600 ; 
 
 V. Collins, 18 Iowa, 228. In another Dowdell v. Neal, 10 Ga. 148. 
 
 case, it is said that an instruction ' The Napoleon, 01c. Adm. 208. 
 
 that "testimony of witnesses who ^ McLees u. Felt, 11 Ind. 218. 
 
 have no interest in the result of the ' Stampofski v. Sleflens, 79 111. 
 
 suit, of equal credibility otherwise, is 303 ; Stilwell u. Carpenter, 2 Abb. 
 
 entitled to more weight than the tes- (N. Y.) N. Cas. 238; Moody v. Pell, 
 
 tiraony of interested witnesses," is not Id. 274. S. P., Haines v. People, 82 
 
 erroneous, but is better withheld. 111. 430. 
 
 Bonnell v. Smith, 53 Iowa, 281. And ' Lawrence v. Maxwell, 58 Barb. 
 
 in another, it was held reversible error (N. Y.) 511. 
 
 to charge the jury, with reference to ' Delvee v. Boardman, 20 Iowa, 
 
 a defendant who had testified in his 446. See also Willey v. Galling, 70 
 
 own behalf, that " one interested will N. C. 410. 
 
324 CEEDIBILITY. [CHAP. XII. 
 
 there are no witnesses other than the parties, and the de- 
 fendant denies all the facts stated by the plaintiff, this, it has 
 been held, leaves the case as if no testimony had been offered 
 by the plaintiff.^ In such a case there is no preponderance 
 of evidence in plaintiff's favor, without which he cannot 
 recover.^ But in case one of them be corroborated, e.g., by 
 documentary evidence, such as the production by plaintiff, 
 uncancelled, of the notes sued on, this should turn the scale 
 in his favor.^ 
 
 § 195. When One Witness is Sufficient. — As a general 
 rule, courts and juries ought not to weigh evidence by the 
 number of witnesses testifying on each side. The evidence 
 of one witness, even though a party, may have more weight 
 in the decision than the testimony of a dozen adverse wit- 
 nesses. If testimony of different witnesses cannot be har- 
 monized, the court or jury trying the cause must determine 
 which of the witnesses are the more worthy of belief.* 
 Thus, the affirmative of an issue may be found, notwith- 
 standing there be but one witness on each side, and the 
 evidence be conflicting.^ No matter how much the presiding 
 judge may doubt the truth of a party's sole witness, he must 
 leave the question of credibility wholly with the jury.^ 
 
 1 Anderson v. Collins, 6 Ala. 783. To prove that the witness received 
 
 2 Sanborn v. Babcock, 33 Wis. 400. certain bank-bills in a neighboring 
 ^ Steumbaugh v. Hallani, 48 111. State, and that they were bills of 
 
 30.5. See also, generally, Hobbs i^. banks there, to show the bills to be of 
 
 Davis, 30 Ga. 423; McCuUough w. value, and current in State of the 
 
 McCuUough, 12 Ind. 487. forum. Commonwealth v. Stebbins, 
 
 « Rudolph V. Lane, 57 Ind. 115. 8 Gray (Mass.) 492. 
 
 ^ Riley v. Butler, 36 Ind. 51. To prove an act of adultery, in 
 
 " Leibig v. Steiner, 94 Pa. St. 4(56. order to sustain a decree of divorce. 
 
 In the following instances one wit- But, in such a case, the conclusion 
 
 ness has been held sufficient : — must depend upon the probability of 
 
 To authorize the recovery of usury the story, the character of the wit- 
 paid to a testator, against the denial ness, and the consistency of his evi- 
 of the executor, who was not pre- dence, and perhaps, also, somewhat 
 sumed to have personal knowledge on on the character of the defendant, 
 the subject. Proctor v. Terrell, 8 B. Derby v. Derby, 6 C. E. Gr. (N. J.) 36. 
 Mon. (Ky.) 451. On the other hand the unsupported 
 
 To establish plaintiff's case, as testimony of a single witness has been 
 
 against the denial in the answer of a held insufficient : — 
 
 material fact. Enders v. Williams, Where he testifies to admissions 
 
 1 Mete. (Ky.) 346 ; or even where obtained by him from a party for the 
 
 there are circumstances creating sus- purpose of charging him thereby, 
 
 picion against an account sued on. Sunday v. Gordon, Blatch. & H. (U. S.) 
 
 Ford V. Haskell, 32 Conn. 489, 569. 
 
§ 195.J 
 
 ELEMENTARY PRINCIPLES. 
 
 325 
 
 To sustain an action against one 
 summoned as trustee in foreign at- 
 tacliment, for answering falsely in his 
 examination under oath, the rule 
 being the same in such a case as in a 
 prosecution for perjury. Laughran 
 V. Kelly, 8 Cush. (Mass.) 199. 
 
 Where he testifies from recollec- 
 tion, merely, after the lapse of seven- 
 teen years. Ridley v. Ridley, 1 Coldw. 
 (Tenn.j 323. 
 
 Where, being called to prove fraud, 
 he testifies to a conversation in wliich 
 he did not participate, when his atten- 
 tion was not requested or particularly 
 attracted to it. Hall v. Layton, 16 
 Tex. 262. 
 
 Where he came to testify before a 
 master vfith a prepared deijosition, a 
 part of which had been written by the 
 defendant, requesting him so to tes- 
 tify, and his testimony varied in some 
 material points from that of another 
 witness, although his general charac- 
 ter was unimpeached. McDaniels u. 
 Barnum, 5 Vt. 279; 6 Vt. 177. 
 
 The unsupported testimony of the 
 accused, which the jury do not be- 
 lieve. Binfield u. State, 19 N. W. 
 Rep. (Nebr.) 607. 
 
 To impeach the character of another 
 witness for truth and veracity. Waf- 
 ford V. State, U Tex. 439. 
 
CHAPTER XIII. 
 
 CONTRADICTING, DISCEEDITING, AND IMPEACHING 
 
 WITNESSES. 
 
 § 196. The Right to contradict or impeach a Witness. 
 
 § 197. Eight to impeach Character. 
 
 § 198. Competency of Witness to Character. 
 
 § 199. What Questions may be put to Witness to Character. 
 
 § 200. Sufficiency and Effect of Proof as to Character. 
 
 § 201. Showing Previous Conviction or Prosecution for Crime. 
 
 § 202. Showing Bias or Prejudice. 
 
 § 203. Proof of Contradictory or Inconsistent Statements, generally. 
 
 § 204. Can Former Statement be proved where AYitness neither 
 admits nor denies "! 
 
 § 205. Proof of Contradictory Written Statements. 
 
 § 206. Whole Paper need not be shown Witness. 
 
 § 207. Proving Contents of Lost Writing. 
 
 § 208. Cross -Examination as to Previous Statements must show 
 whether they were in Writing or in Words. 
 
 § 209. Contradiction not allowed where Former Statement is Imper- 
 tinent or Immaterial. 
 
 § 210. Showing Previous Expressions of Opinion Inconsistent with 
 Witness' Testimony. 
 
 § 196. The Right to contradict or impeach a 'Witness. — As a 
 
 general rule, subject to the exceptions hereafter to be exam- 
 ined, either party to an action at law or suit in equity may, 
 after first cross-examining a witness introduced by the oppo- 
 site party, impeach, contradict, or discredit such witness either 
 by evidence showing him to be interested or biassed, or to be 
 of bad moral character, or to have previously made state- 
 ments inconsistent with or contradictory to those made on 
 the trial, or by other proof tending to lessen his credibility 
 with the jury. Thus a party may examine a witness as to 
 the details of his transactions, in order to show his interest, 
 at any stage of the suit.^ He can contradict the testimony 
 of an adverse witness, if material, even when he cannot im- 
 peach his general character.^ He can always impeach, unless 
 
 1 Baldwin v. West, Hard. (Ky.) 50. ^ Frank v. Manny, 2 Daly (N. Y.) 
 See Head v. State, 44 Miss. 731. 92. 
 
§ 196.] CONTEADICTINa AND IMPEACHING. 327 
 
 he has introduced new matter in the cross-examination. ^ But 
 it is said a witness cannot be called to impeach the memorj% 
 merely, of another witness.^ Even where, by statute, the 
 oath of a party, e.g., denying usury, cannot be directly con- 
 tradicted, circumstances may be proved tending to show that 
 the oath was falsely taken.^ A party to the suit may be im- 
 peached in the same manner and on the same grounds as any 
 other witness,* and so may a defendant in a criminal prose- 
 cution;^ and an impeaching witness may be himself im- 
 peached.8 
 
 Inasmuch as the credibility of a witness must be judged 
 of by the jury, any evidence which tends to affect it is com- 
 petent.'' His manner, the improbability of his story, or his 
 self-contradiction,^ may justify the jury in not believing him, 
 or only partly believing liira.^ So, also, the force of circum- 
 stances otherwise proved, may contradict hiui.^'^ But mere 
 variance between the statements of two witnesses will not 
 necessarily impeach or affect the credibility of either, as the 
 contradiction may arise from mistake, or other cause consist- 
 ent with their integrity.^! Nor can it be shown to impeach the 
 credibility of a witness that he swore to the same facts on a 
 former trial and the jury did not believe him ; ^^ nor that he is 
 of negro extraction ; ^^ nor that he attempted to settle the case 
 before trial ; ^^ nor that he came from a distance without sub- 
 
 iPeopleK.Moore, ISWend. (N. Y.) Iowa, 180; State v. Moore, 25 Iowa, 
 
 419. 128 ; Starks v. People, 5 Den. (N. Y.) 
 
 2 Goodwyn v. Goodwyn, 20 Ga. 600 ; 106 ; State v. Cherry, 63 N. C. 493. 
 Wiggins V. Holman, 5 Ind. 502. See 7 Magehan v. Tiiompson, 9 Watts & 
 infra, § 203. S. (Pa.) 54. 
 
 3 Fulmer v. Hays, 3 McCord (S. C.) 8 Frencli v. Millard, 2 Ohio St. 44 ; 
 256. Burtus v. Tisdail, 4 Barb. (N. Y.) 571 ; 
 
 * Varonau. Sooarras, 8 Abb. (N. Y.) George ;;. State, 39 Miss. 570; Terry 
 
 Pr. 302. Compare Holbrook v. Mix, o. State, 13 Ind. 70. 
 
 1 E. D. Smith (N.Y.) 154. 9 Compare Hansell <,. Erickson, 28 
 
 6 State V. Hardin, 46 Iowa, 623; 111.257; Eankin d. Crow, 19 111. 626. 
 
 Mershorn v. State, 51 Ind. 14 ; State i" Koehler v. Adler, 78 N. Y. 287. 
 
 V. Beal, 68 Ind. 345 ; State v. Clinton, " Sharon u. Hill, 26 Fed. Rep. 55 ; 
 
 67 Mo. 380 ; State v. Cox, Id. 392 ; Vernon v. Tucker, 30 Md. 456. 
 
 State V. Efler, 85 N. C. 585. Contra in , 12 Schenck v. Griffin, 9 Vr. (N. J.) 
 
 Alabama prior to the passage of the 462. 
 
 recent enabling act. Chappell u. is j)ean v. Commonwealth, 4 Gratt. 
 
 State, 2 Ala. L. J. 183. (Va.) 541. 
 
 6 Phillips V. Thorn, 84 Ind. 84 ; s. c, " People v. Austin, 1 Park (N. Y.) 
 
 43 Am. Kep. 85 ; State v. Brant, 14 Cr. 164. 
 
328 CREDIEILITy. [chap. XIII. 
 
 pcena or fees ; ^ nor that the witness had the opium habit, no 
 serious or present effects appearing.^ 
 
 Again, the interest of tire witness may be shown for the 
 purpose of impeaching his credit;^ and the case being a 
 criminal one, the fact that the witness is the defendant is 
 admissible to show interest.* The state of feeling, and rela- 
 tionship of the witness toward a party, is also admissible ; ^ 
 but his admissions out of court are not to be received in 
 proof of his interest.^ And it may be shown directly that 
 facts sworn to by the witness as existing, do not in fact exist." 
 
 So, also, it has been held that a witness may be discredited 
 by showing him to be deficient in mental capacity or intelli- 
 gence, the result of illness or otlier cause.^ But the courts 
 are cautious iu permitting impeachment on this ground,^ and 
 will not allow it to be done by general evidence that the wit- 
 ness is not possessed of ordinary intelligence or powers of 
 mind;!" and an instruction calculated to lead the jury to 
 assume that a witness may be just as effectually impeached 
 by showing his lack of intelligence, as by contradicting him 
 by the positive testimony of other witnesses, is erroneous.-'-' 
 Weakness of memory, also, may be shown to impeach a wit- 
 ness.i^ This may be done by resorting to the opinions of 
 persons intimately acquainted with the witness,^^ or by ques- 
 tioning the witness himself with a view to testing his memory 
 and afterwards contradicting him by other evidence.^* 
 
 For reasons analogous to these, a witness may be impeached 
 by showing that at the time of the occurrence as to which 
 he testifies, or at the time of the trial, the witness was 
 or is insane,^^ or intoxicated-^^ His religious belief, also, 
 
 1 Hurst V. Burnside (Oreg.) 8 West ^ Carpenter v. Dame, 10 Ind. 125. 
 Coast Rep. 445. " Bell v. Rinner, 16 Ohio St. 45. 
 
 2 McDowell V. Preston, 26 Ga. 528. " Chicago &c. R. R. Co. u. Bert, 69 
 See also, for analogous instances, 111. 388. 
 
 Brock V. State, 26 Ala. 104 ; Sealy v. 12 AUeman v. Stepp, 52 Iowa, 626 ; 
 
 State, 1 Ga. 213; Blake u. Everett, 1 Eivara v. Ghio,3 E. D. Smith (N. Y.) 
 
 Allen (Mass.) 248 ; Pleasant v. State, 264; Terry v. McNiel, 58 Barb. (N. Y.) 
 
 13 Ark. 360; Ellsworth v. Potter, 41 241. 
 
 Vt. 685. 13 isier „, Dervey, 75 N. C. 466. 
 
 8 Geary v. People, 22 Mich. 220 ; " Terry v. McNiel, supra. 
 
 Hunter v. Wetsell, 84 N. Y. 549. is McGuirl v. McGuirl, 12 111. App. 
 
 * State V. Zorn, 71 Mo. 415. 624 ; State v. Kelly, 57 N. H. 549. 
 
 6 Carr v. Moore, 41 N. H. 131. "Elemingw. State, 5Humph.(Tenn,) 
 
 6 Mislaid V. Boynton, 79 N. Y. 630. 564 ; Sisson v. Conger, 1 Thomp. & C. 
 
 ' Ripon V. Bittel, 30 Wis. 614. (N. Y.) 564. But compare Tuttle v. 
 
 8 Fairchild v. Bascomb, 35 Vt. 398. Russell, 2 Day (Conn.) 201. 
 
§ 197. J CONTEADICTING AND IMPEACHING. 329 
 
 may be shown, but he cannot be himself examined as to 
 that.i 
 
 § 197. Right to impeach Character. — " Character," or 
 "general character," as used in this connection, means the 
 standing of a person in general estimation ; i.e., public 
 opinion of him,^ common report of him,^ his reputation.^ To 
 prove this to be bad is a common mode of impeachment, but 
 the inquiry must be confined to the general reputation of the 
 witness ; particular facts, which, if true, would impeach his 
 character for veracity, cannot be gone into ; and the reason 
 is that every man may be supposed capable of supporting 
 his general character, but it is not likely that he should be 
 prepared to answer to particular facts, without notice ; and 
 unless his general character and behavior are in issue, he has 
 no notice.^ 
 
 A more difficult question arises when we come to consider 
 whether it is the general moral character of the witness or 
 his general reputation for truthfulness that is the proper 
 subject of inquiry. Upon this much discussed question the 
 courts are hopelessly divided in opinion. Some able text- 
 writers take the view that the moral character, as well as the 
 reputation for truth and veracity, is open ;^ and they are 
 supported by numerous authorities.'' AVith all due respect 
 for the eminent judges who laid down this rule, the writer 
 is forced to accept as the safer and better doctrine, that 
 enunciated quite recently by the Supreme Court of Minne- 
 
 1 Searcy v. Miller, 57 Iowa, 613. ^ Cow. & H. notes to 2 Phil. Ev. 
 
 2 Boynton v. Kellogg, .3 Mass. 192 ; note 598 ; 2 Tayl. Ev. §§ 1082, 108.3. 
 Douglass V. Tousey, 2 Wend. (N. Y.) ' Majors o. State, 29 Ark. 112 ; 
 354. People v. Beck, 58 Cal. 212 ; State p. 
 
 SKimmeli;. Kimmel,3S.&R. (Pa.) Kirkpatrick, 19 N. W. Rep. (Iowa) 
 
 337. 660 ; State v. Hart, 25 Id. (Iowa) 99 ; 
 
 * Ibid, p. 338, per Duncan, J. State v. Egan, 59 Iowa 636 ; Hume v. 
 
 5 Bull. N. P. 296, 297 ; Layer's Case, Scott, 3 A. K. Marsh. (Ky.) 260 ; Blue 
 
 16 How. St. Tr. 246, 286 ; Thurman i-. v. Kibby, 1 T. B. Mon. (Ky.) 195; 
 
 Virgin, 18 B. Mon. (Ky.) 785; Long State v. Shields, 13 Mo. 2.36; Day v. 
 
 V. Morrison, 14 Ind. 595; Wilson i^. State, Id. 422; Gilliam v. State, 1 
 
 State, 16 Ind. 392; Taylor v. Com- Head (Tenn.) 38; Taeket v. May, 3 
 
 monwealth, 3 Bush (Ky.) 508 ; Mac- Dana (Ky.) 79 ; State v. Breedcn, 58 
 
 donald v. Garrison, 2 Hilt. (N. Y.) 510; Mo. 507 ; State v. Grant, 76 Mo. 2.39 ; 
 
 Barton v. Morphes, 2 Dev. (N. C.) L. State v. Rugan, 5 Mo. App. 592 ; Peo- 
 
 520; Walker w. State, 6 Blackf. (Ind.) pie u. Mather, 4 Wend. (N. Y.) 257, 
 
 1; Wike y. Liglitner, 11 S. & R. 258; State v. Stallings, 2 Hayw. 
 
 (Pa.) 198. (N. C.) 300 ; State r. Boswell, 2 Dev. 
 
 (N. C.) 209, 210 ; and many others. 
 
330 CEEDIBILITY. [CHAP. XIII. 
 
 sota : " The only object in inquiring into the character of a 
 witness is to ascertain whether his statements, in themselves, 
 are entitled to credit. If he is a truthful person, they are ; 
 otherwise, they are not. A witness therefore, in coming 
 into court, would perhaps properly be considered as as- 
 serting his character for truthfulness to be good, and be 
 charged with notice to defend it; but is not responsible 
 to answer, or be required to meet an attack upon his 
 character in any other respect. A man may indulge in 
 vices which destroy his general character, yet his truth- 
 fulness, and his reputation for truthfulness, may be unim- 
 peachable. An inquiry in such a case as to his moral 
 character would mislead, instead of assist, in arriving at the 
 object of investigation, namely, his credibility ; it would in 
 any event be an unnecessary attack and exposure of him to 
 contempt and disgrace. Further, by such general inquiry 
 as to character, the administration of justice would be hin- 
 dered and delayed by collateral issues, and be more easily 
 made the channel of venting private hatred and malice." ^ 
 
 And this view is even more strongly intrenched in judicial 
 authority .2 In applying it, evidence of the bad character of 
 a female witness for chastity has been held inadmissible,^ 
 even where the proposed proof went to show her to be a 
 common prostitute.* So it cannot be shown to impeach a 
 witness' credibility " that he is a man of notorious bad char- 
 
 ^ Eudskill v. Slingerland, 18 Minn. Leigh (Va.) 330; TJhl v. Common- 
 
 380. wealth, 6 Gratt. (Va.) 706. 
 
 2 Frye v. Bank of Illinois, 11 111. 8 People v. Yslas, 27 Cal. 630 ; 
 
 367; United States v. Vansickle, 2 Ford <;. Jones, 62 Barb. (N. Y.) 484; 
 
 McLean (U. S.), 219; Patriotic Bank Boles v. State, 46 Ala. 204; Kilbum 
 
 V. Coote, 3 Cranch C. Ct. 109 ; United v. Mullen, 22 Iowa, 498 ; Gilchrist v. 
 
 States i.. Masters, 4 Id. 479; United McKee, 4 Watts (Pa.) 380; Com. v. 
 
 States V. White, 5 Id. 38 ; Nugent v. Moore, 3 Pick. (Mass.) 194 : Ketching- 
 
 State, 18 Ala. 521 ; Carter v. Cove- man v. State, 6 Wis. 426 ; Weathers 
 
 naugh, 1 Greene (Iowa) 171 ; Taylor v. Barksdale, 30 Ga. 888. 
 
 V. Clendining, 4 Kan. 524 ; Phillips v. * Commonwealth v. Churchill, 11 
 
 Kingfield, 19 Me. 375 ; Shaw v. Em- Mete. (Mass.) 538 ; Jackson v. Lewis, 
 
 ery, 42 Me. 69 ; Newman v. Mackiu, 13 13 Johns. (N. Y.) 504 ; Wilds v. Blan- 
 
 Sm. & M. (Miss.) 383; Craig v. State, chard, 7 Vt. 141 ; Bakeman v. Rose, 
 
 5 Ohio St. 605; State v. Alexander, 2 14 Wend. (N. Y.) 105; Spears I'.For- 
 
 Mill (S. C.) Const. 171; Clark v. rest, 15 Vt. 435. But see Evans v. 
 
 Bailey, 2 Strobh. (S. C.) Eq. 143; Smith, 5 T. B. Mon, (Ky.) 363; Com- 
 
 Boon V. Weathered, 23 Tex. 675 ; Crab- monwealth v. Murphy, 14 Mass. 387 ; 
 
 treeu. Kile, 21 111. 180; Ayres i-. Du- Indianapolis &c. E'y Co. v. Anthony, 
 
 prey, 27 Tex. 593 ; Rixey v. Bayse, 4 43 Ind. 183. 
 
§ 198.] CONTRADICTING AND IMPEACHING. 331 
 
 acter — esteemed a horse-thief, and is now under charge as 
 such," 1 or that he is a notorious counterfeiter,^ or a man of 
 intemperate habits.^ Many other rejected offers will be found 
 on consulting the cases aleady cited. 
 
 § 198. Competency of Witness to Character. — A witness 
 called to impeach the reputation of another witness should 
 be acquainted with the latter's general reputation for truth 
 among his neighbors,* or, it seems with his " general charac- 
 ter," aside from his reputation for truth.^ Such a witness is 
 competent, even though he never heard the general repu- 
 tation for veracity of the impeached witness canvassed.^ 
 Whether his opinion be founded upon his own personal 
 knowledge of the party, or upon common rumor, makes no 
 difference as respects his competency, however it may affect 
 the weight of his testimony.' 
 
 As to the length of time during which the impeaching wit- 
 ness must have known the reputation of the impeached wit- 
 ness, no rule can be laid down. Eight or ten years' acquaint- 
 ance was held sufficient in one case ; ^ in others, witnesses 
 were held competent whose acquaintanceship with the party 
 sought to be impeached had terminated, by removal, several 
 years before the trial ; ^ and in otliers, where such acquaint- 
 ance had originated after the commencement of the action in 
 which the impeaching testimonj' was offered.^" 
 
 1 State V. Sater, 8 Iowa, 420. S. P., impeaching witness must be able to 
 State V. Bruce, 24 Me. 71. state what is generally said of the 
 
 2 Crane y. Thayer, 18 Vt. 162. See person to be impeached, among his 
 also Berner u. Mittnacht, 2 Sweeny associates ; and Hadley v. State, 55 
 (N. Y.) 582. Ala. 31, where a witness who said that 
 
 ' Hoitt V. Moulton, 21 N. H. 586; he knew the person sought to be 
 
 Thayer v. Boyle, 30 Me. 475. impeached, but did not know his char- 
 
 ^ Kelly V. Proctor, 41 N. H. 139; acter, was rejected. See also Keeter- 
 
 Dave V. State, 22 Ala. 23. ingliam v. Dance, 58 Iowa, 632. 
 
 5 Johnson v. People, 3 Hill (N. Y.) » Dupree v. State, 33 Ala. 380. 
 
 178. ^ Kelly v. State, 61 Ala. 19 ; Gra- 
 
 « Had jo V. Gooden, 13 Ala. 718; ham w. Chrystal, 2 Abb. (N. Y.) App. 
 Dave f. State, 22 Ala. 23; Ward v. Dec. 263; Sleeper v. Van Middles- 
 State, 28 Ala. 53 ; Childs v. State, 55 worth, 4 Den. (N. Y.) 431 ; Martin v. 
 Ala. 28; Lenox v. Fuller, 39 Mich. Martin, 25 Ala. 201. Contra, Webber 
 268. V. Hanke, 4 Mich. 198 ; Chance v. 
 
 ' State V. Meadows, 18 W. Va. 658 ; Indianapolis &c. R. Co., 32 Ind. 472. 
 
 State V. Hart, (Iowa) 25 N. W. Rep. i" Fischer y.' Conway, 21 Kan. 18 ; 
 
 99; Dufresne v. Wiese, 46 Wis. 290; Mask v. State, 36 Miss. 77. See also 
 
 Kimmel v. Kimmel, 3 S. &. E. (Pa.) Cook c. Miller, 6 Watts (Pa.) 507, 
 
 336. But compare Crabtree v. Kile, where the prejudices of the impeach- 
 
 21 111. 180, where it is said that the ing witness were held not to disqualify 
 
332 CREDIBILITY. [chap. XIII. 
 
 On the other hand, a witness who based his belief upon 
 his individual opinion and feelings, and not upon any 
 knowledge of the reputation of the impeached witness in 
 the community in which he lived, as to which he was 
 wholly uniformed, was rejected ; ^ as was one who stated he 
 had no knowledge as to the general character of the wit- 
 ness, save only as connected with some "alleged frauds." ^ 
 So, also, a stranger sent into the witness' neighborhood to 
 learn his character, will not be permitted to testify as to the 
 result of his inquiries.^ 
 
 § 199. 'What Questions may be put to Witness to Character. — 
 The first inquiry to be put to the witnesses called to impeach 
 another, must ordinarily be as to their acquaintance with him, 
 and his general character for truth and veracity in the neigh- 
 borhood where he resides ; next, what that reputation is ; then 
 the question may be asked, whether, from their knowledge of 
 his general reputation for truth, they would believe him under 
 oath.* 
 
 Taylor, in his treatise on evidence, insists that the inquiry 
 in such cases involves the entire moral character of the wit- 
 ness whose credit is thus impeached, and his estimation in 
 society,^ but the weight of American authority limits the 
 inquiry to the reputation of the witness for truth and ve- 
 racity, as we have already seen ; ^ some cases, however, allow- 
 ing testimony as to general moral character to be given, pro- 
 vided the first questions put to the impeaching witness call 
 for his knowledge of the reputation for truth of the witness 
 under impeachment.^ It is the general public reputation of 
 
 him. That the party is not confined 101 ; Curtis v. Fay, 37 Barb. (N. Y.) 
 
 to proof of the reputation at the time 64. 
 
 of trial, see Memphis & Ohio River ^ Bogle v. Kreitzer, 46 Pa. St. 465. 
 
 &c. Co. V. McCool, 83 Ind. 392 ; Doll- S. P., Stokes v. State, 18 Ga. 17 ; Hen- 
 
 ner v. Lintz, 84 N. Y. 669. And com- derson v. Hayne, 2 Meto. (Ky.) 342 : 
 
 pare Eawles v. State, 56 Ind. 433; People o. Mather, 4 Wend. (N. Y.) 
 
 Lawson o. State, 32 Ark. 220 ; llob- 229 ; Mobley v. Hamit, 1 A. K. Marsli. 
 
 inson v. State, 16 Pla. 835 ; Brown (Ky.) 590 ; Ford v. Ford, 7 Humpli. 
 
 V. Luehrs, 1 111. App. 74 ; State v. (Tenn.) 92 ; Elam v. State, 25 Ala. 53. 
 
 Lanier, 79 N. C. 622. . « 2 Tayl. Ev. §§ 1082, 1083. 
 
 1 Ayres v. Duprey, 27 Tex. 593. S. « Supra, p. 330, note 2. 
 
 P., Com. o. Rogers, (Mass. ) 17 Rep. ' Teese c. Huntingdon, 23 How. 
 
 558. (U. S.) 2; Boyd D.Lewis, 13 Johns. 
 
 2 Sorrelle v. Craig, 9 Ala. 5-34. (N. Y.) 504. See also Noel v. Dickey, 
 8 Reid u. Reid, 2 C. E. Gr. (N. J.) 3 Bibb (Ky.) 268. 
 
§ 199.] 
 
 CONTKADICTING AND IMPEACHING. 
 
 333 
 
 the witness as a truthful or untruthful person in the com- 
 munity where he is best known, that is the subject of 
 inquiry ; specific acts of immorality, untruthfulness, or other 
 misconduct cannot be inquired about or proved.^ The 
 impeaching Avitness must not say he was told that the person 
 had a good or bad character. " I have heard others say," will 
 not do. Others' sayings may not be his general character. 
 Others may be only two or three. There are few men of 
 whom some do not speak well and some ill. The question 
 is, what is said by people in general? Everything short of 
 that is incorrect. ^ 
 
 Nor can specific acts be shown to disparage the character 
 of a witness ; such as a letter written by him, the language of 
 which might evince a depraved or unchaste character,^ or 
 an attempt by him to evade arrest on a criminal charge,* or 
 the manner in which he kept his accounts,^ and the like. 
 
 As to the form of the questions to be put to the impeach- 
 ing witness, it has been held to be immaterial in what form 
 of words the questions are put if the necessary facts are 
 made to appear.® 
 
 ' Johnson < . State, 61 Ga. 305 ; 
 Dimiek o. Downs, 82 111. 570 ; Mey- 
 necke v. State, 68 Ind. 401 ; Moreland 
 V. Lawrence, 23 Minn. 84 ; Welir- 
 kanip V. Willet, 4 Abb. (N. Y.) App. 
 Dec. 548 ; Conley v. Meeker, 85 N. Y. 
 618 ; Bucklin v. State, 20 Ohio, 18 ; 
 Johnson v. Brown, 51 Tex. 65 ; Mar- 
 shall V. State, 5 Tex. App. 273. 
 
 2 Per Tilghman, C. J., in Wike v. 
 Lightner, 11 S. & E. (Pa.) 199, 200. 
 S. P., Matthewson v. Burr, 6 Neb. 312 ; 
 GuleretteD.McKinley,27 Hun (N.Y.) 
 320. 
 
 ^ Leverich v. Prank, 6 Oreg. 212. 
 
 4 Moore v. State, 68 Ala. 360. 
 
 5 Long V. Taylor, 29 Hun (N. Y.) 
 127. See Commonwealth u. Murphy 
 (14 Mass. 387), where notorious un- 
 chastity was allowed to be shown. 
 That case, howerer, is virtually over- 
 ruled by Commonwealth v. Moore (3 
 Pick. (Mass.) 194), where such evi- 
 dence was rejected. As to the admis- 
 sibility of such evidence in Kentucky, 
 see Evans v. Smith, 5 Mon. 368, 365 ; 
 Blue V. Kibby, 1 Id. 195; Hume v. 
 
 Scott, 3 Marsh. 260 ; Noel v. Dickey, 
 3 Bibb, 268; Mobby v. Hamit, 1 
 Marsh. 591. 
 
 « Kelley v. Proctor, 41. N. H. 1J9. 
 
 The following questions liave been 
 held permissible : " Do you know the 
 general character of A for truth and 
 veracity in the county of Eussell 1 " 
 (Boswell V. Blackman, 12 Ga. 591.) 
 " Are you acquainted with the general 
 reputation of the witness sought to be 
 impeached, among his friends, neigh- 
 bors, and associates ' " (Crabtree v. 
 Hagenbaugh, 25 111. 233.) " What is 
 his general character for truth in that 
 town ? " (Woodman v. Churchill, 51 
 Me. 112.) " Are you acquainted with 
 A's reputation for truth and veracity ? 
 If so, what is it % " (French v. Millard, 
 2 Ohio St. 44 ; S. P., Knode v. Wil- 
 liamson, 17 Wall. (U. S.) 586.) "Are 
 you acquainted with the general char- 
 acter of the witness ? " (Hancock r. 
 Stephens, 11 Humph. (Tenn.) 570.) 
 " Do you know the general character 
 of the witness for truth and veracity 
 in the neighborhood in which he re- 
 
lU 
 
 CEEDIBILITY. 
 
 [chap. XIII. 
 
 Another point upon which tlie adjudged cases fail to har- 
 monize is, as to whether the impeaching witness may he 
 allowed to state whether or not, from his knowledge of the 
 reputation for truth of the witness sought to be impeached, 
 he would believe him under oath. The affirmative of this 
 proposition has been held in many cases, some of which are 
 cited below,! .^y^([ such is clearly the English rule.^ In some 
 of the American jurisdictions, the propriety of this rule 
 appears to have been doubted,^ but the weight of authority 
 seems clearly to be in favor of the English rule.* 
 
 sides or recently resided 1 " (Laiig- 
 horne v. Commonwealth, 76 Va. 
 1012.) 
 
 The following questions were held 
 inadmissible in the form in which they 
 were put : " Are you acquainted with 
 the rumor and belief of people about 
 the witness ? " (Pleasant v. State, 15 
 Ark. 624.) "Whether, from the treat- 
 ment and conduct of the community 
 generally, towards the witness, you 
 know enough about liis general char- 
 acter to say what it is for truth and 
 veracity t " (Bates v. Barber, 4 Cush. 
 (Mass.) 107.) "Have you heard his 
 character for truth and veracity called 
 in question ■? " " If you have heard 
 his character for truth and veracity 
 called in question, state what the com- 
 mon speech of people is as to his 
 character for truth and veracity." 
 " What is the general reputation of 
 C for truth and veracity, among those 
 wlio speak of it at all ■? " (Common- 
 wealth V. Lawler, 12 Allen (Mass.) 
 685.) "Did B state to you that he 
 regarded it as no wrong to swear 
 falsely against such a man as C ■* " 
 (Wilder v. Peabody, 21 Hun (N. Y.) 
 376.) " In what estimation is the 
 witness held in this neighborhood "! " 
 (State V. O'Neal, 4 Ired. (N. C.) L. 88.) 
 
 1 Stevens v. Irwin, 12 Cal. 306 ; 
 Eason v. Chapman, 21 111. 33; Knight 
 V. House, 29 Md. 194 ; Keator v. Peo- 
 ple, 32 Mich. 484 ; People v. Rector, 
 19 AVend. (N. Y.) 509. 
 
 2 Mawson v. Hartsink, 4 Esp. 104 ; 
 1 Stark. Ev. 182 ; Carlos v. Brook, 10 
 Ves. 50. See also, to same eifect, 
 People u. Mather, 4 Wend. (N, Y.) 
 
 258 ; State v. Boswell, 2 Dev. (N. C.) 
 L. 211; Anon., 1 Hill (S. C.) 258; 
 Ford u. Eord, 7 Humph. (Tenn.) 92 ; 
 Wilson V. State, 3 Wis. 798. 
 
 8 1 Greenl. Ev. § 461, and cases cited. 
 
 In Phillips V. Kingfield, 1 App. 
 (Me.) 375, 379, Shepley, J., laid down 
 a, dictum in disapproval of the English 
 rule, upon which Mr. Greenleaf seems 
 to have relied rather too strongly, as 
 appears from the subsequent case of 
 Hamilton v. People (29 Mich. 173), 
 where it is said that" The English rule 
 was never seriously questioned until 
 Mr. Greenleaf's statement . . . that the 
 American authorities disfavored it. 
 Of the cases he refers to, not one con- 
 tains a decision on the question, and 
 only one contains more than a passing 
 dictum, not in any way called for 
 (Phillips u. Kingfield, 1 App. (Me.) 
 375). The authorities referred to in 
 tliat case contained no such decision, 
 and the court declared the question 
 not presented by the record for deci- 
 sion. ... So far as the reports show, 
 the American decisions are decidedly 
 in favor of the English doctrine, and 
 we have not found any considerable 
 conflict" (citing many cases). This 
 ruling was affirmed in Keator v. Peo- 
 ple, 32 Mich. 484. The opposite view 
 seems to be entertained in Massey v. 
 Farmers' Bank, 104 111. 327 ; King v. 
 Peakman, 5 C. E. Gr. (N. J.) 316; 
 Hooper i'. Moore, 3 Jones (N. C.) L. 
 428 ; and Willard v. Goodenough, 30 
 Vt. 393. 
 
 * In Texas it is held that after an 
 impeaching witness has stated that he 
 knows the general reputation for 
 
§ 201.J CONTRADICTING AND IMPEACHING. 335 
 
 § 200. Sufficiency and Effect of Proof as to Character. — 
 
 Proof that a witness had said that he would " swear to any- 
 thing," 1 or that " on some occasions he would swear .to a 
 lie,"^ has been held sufficient to destroy his credit.^ The jury 
 are not bound, however, by the opinions of the impeaching 
 witnesses ; * and it has been held erroneous to instruct them 
 that " if the general character of a witness for truth is suc- 
 cessfully impeached, you are bound to disregard the whole of 
 his testimony." s In such a case the testimony of the im- 
 peached witness should be given such weight as it may be 
 entitled to under the circumstances,® and when compared 
 with the other evidence and facts proved in the case.'^ He 
 may be relied upon so far as his testimony is intrinsically 
 probable, or corroborated by circumstances.^ 
 
 The manner of the impeaching witness should be closely 
 scrutinized — if he answers incoherently, obscurely, and con- 
 tradictorily, not apprehending, evidently, the point of the 
 inquiry, this fact should be considered by the jury.® 
 
 § 201. Showing Previous Conviction or Prosecution for 
 Crime. — Formerly, when convicts were not admitted as 
 witnesses, proof of conviction of crime was altogether fatal, 
 not only to the credibility, but also to the giving of any 
 testimony whatever by the Avitnesses.^" Since the almost 
 universal abolition of incompetency by reason of infamy, 
 however, the fact that a witness has been convicted of a 
 crime which would have excluded him at common law is 
 allowed to be shown for the purpose of affecting his credit 
 with the jury." But the fact must be shown by the record, 
 
 truth of the assailed witness, and that him, though greatly to affect his 
 
 it is bad, he may be asked whether credit. Parr v. Gyles, .3 La. Ann. 
 
 from that reputation the assailed wit- 669. 
 
 uess is worthy of belief. This is held * Spivey v. State, 8 Ind. 405. 
 
 not tantamount to the objectionable ^ Sharp v. State, 16 Ohio St. 218. 
 
 inquiry whether the impeaching wit- ^ Belcher v. Conner, 1 So. Car. 88. 
 
 ness would himself believe the assailed ' Jernigan v. Wainer, 12 Tex. 189. 
 
 witness. Bluitt v. State, 12 Tex. App. ' Adams v. Adams, 2 C. E. Gr. 
 
 39 ; Holbert v. State, 9 Id. 219; s. c, (N. J.) 324. 
 
 35 Am. Eop. 738. ^ Sims v. State, 68 Ga. 486 ; Bullard 
 
 1 Newhall v. Wadhams, 1 Eoot v. Lambert, 40 Ala. 204. 
 (Conn.) 504. " See supra, §§ 14-20. 
 
 2 Anonymous, 1 Hill (S. C.) 251. ^^ Commonwealth v. Gorham, 99 
 But see City Bank v. Kent, 57 Ga. Mass. 420; Jeffersonville &c. R. E. 
 283. Co. u. Eilcy, 39 Ind. 568; Glenn v. 
 
 ' In Louisiana a decision in a civil Clore, 42 Ind. 60 ; Commonwealth v. 
 action, declaringawitness not entitled Hall, 4 Allen (Mass.) 305; State i: 
 to credit, was held not to disqualify Kelsoe, 76 Mo. 505. 
 
336 CEEDIBILITY. [CIIAP. XIII. 
 
 or a certified copy tliereof ; parol evidence of the conviction 
 of tire witness of an infamous crime will not be received. ^ 
 And his conviction by a court of competent jurisdiction must 
 be shown; a mere arrest, or indictment, or prosecution — 
 even a verdict against him — will not do: the Judgment of 
 conviction must be proved by the record.^ 
 
 Whether the record of a conviction in another State will 
 be admitted to discredit a witness is a point as to which the 
 cases are not in harmony.^ 
 
 It is the conviction, not the punishment, which discredits ; 
 therefore the prison record is inadmissible to impeach the 
 witness;* and tlie conviction must have been for an in- 
 famous offence, not for one not infamous, for suclr a convic- 
 tion is not legally presumed to affect the witness' credibility .^ 
 Thus in a prosecution for assault with special intent, a 
 record showing an acquittal of tire intent and a conviction 
 for simple assault is not admissible to discredit the witness.^ 
 But the record, when properly admitted, is conclusive, and 
 the witness will not be permitted to declare his innocence of 
 the crime therein charged;'' nor will a pardon render the 
 record inadmissible.* 
 
 A confession of guilt, or plea of guilty, without proof of 
 the entry of a judgment of conviction, is not admissible to 
 discredit the witness.^ 
 
 1 United States v. "Woods, 4 Craneh, bell v. State, 23 Ala. 44. That the 
 
 C. C. 484; Hall v. Brown, 30 Conn, witness can avow his innocence of 
 551 ; Farley u. State, 57 Ind. 331 ; the crime charged in such foreign 
 Newcorab v. Griswold, 24 N. Y. 298; record, see Sims v. Sims, 76 N. Y. 466. 
 Rathburn v. Ross, 46 Barb. (N. Y.) * Bartholomew v. People, 104 111. 
 127 ; Peck u. York, 47 Barb. (N. Y.) 601 ; s. c, 44 Am. Rep. 97. 
 
 131 ; Matter of Real, 55 Id. 186 ; ^ Bartholomew v. People, supra ; 
 
 s. c, 7 Abb. Pr. n. s. 26. State v. Huff, 11 Nev. 17; Coble v. 
 
 2 Anderson v. State, 34 Ark. 257 ; State, 31 Ohio St. 100. 
 People V. Elster, 5 Grim. L. Mag. <! Glenn v. Clore, 42 Ind. 60. 
 
 687 ; Johnson v. State, 48 Ga. 116 ; ■ State v. Watson, 65 Me. 74 ; 
 
 Canada </. Curry, 73 Ind. 246 ; State Commonvyealth v. Gallagher, 126 
 
 D. Daraery, 48 Me. 327; Fay v. Har- Mass. 54; Sims o. Sims, 12 Hun 
 Ian, 128 Mass. 244; McLaughlin v. (N. Y.) 231; Gardner v. Bartholo- 
 Cowley, 131 Mass. 70; West v. Lynch, mew, 40 Barb. (N. Y.) 325. 
 
 7 Daly (N. Y.) 245 ; Campbell v. 8 Curtis v. Cochran, 50 N. H. 242 ; 
 
 State, 23 Ala. 44 ; Lipe o. Eisenlerd, Baum v. Clause, 5 Hill (N. Y.) 196. 
 32 N. Y. 229. 9 Fay v. Harlan, 128 Mass. 244 ; 
 
 ^ That it will be, see Common- McLaughlin v. Cowley, 131 Id. 70; 
 
 wealth V. Knapp, 9 Pick. (Mass.) Dickinson f. Dustin, 21 Mich. 561. 
 490. That it will not be, see Camp- 
 
§ 202.] CO>'TrvADICTIKG AND IMPEACHING. 337 
 
 Another point xipon which the authorities disagree is, 
 whetlier it be proper to question the witness, on cross-exami- 
 nation, as to Iiis pre.vious arrest, prosecution, or conviction 
 for crime, with a view to impair his credit with the jury. 
 In California this may be done, or the party may prove the 
 conviction by tlie record.^ So, in New York a witness may 
 be asked on cross-examination wlrether he has been in jail, 
 the penitentiary, or State prison, or any other place that 
 would tend to impair his credibility, and how much of his 
 life he has passed in such places. The extent of the cross- 
 examination of this character is somewhat in the discretion 
 of the court, and must necessarily be so to prevent abuse.^ 
 In North Carolina, it is held that a witness may be asked if 
 he has not committed perjury in another State.^ Ou the 
 other hand, it has been held in Massachusetts,* Michigan,^ 
 New York,^ and Virginia,' that this line of questioning ou 
 cross-examination for the jjurpose of impeachment, is im- 
 proper and not to be allowed. 
 
 Where the witness under examination in a criminal trial 
 is the accused himself, it is pretty well settled that he may 
 be interrogated as to previous arrests and convictions, and 
 even mere charges of crime, with a view to injure his credit.^ 
 
 § 202. Showing Bias or Prejudice. — ^A witness may be 
 impeached by proof" that his impartiality is affected bj^ 
 motives arising from friendship, affection, fear, or inteiest.^ 
 Such evidence is not regarded as collateral to the issue. ^^ 
 
 The hostility of the witness may be shown either by the tes- 
 timony of the witness himself or by extrinsic evidence ; ■'■' 
 
 1 Code Civ. Pro. § 2051 ; People v. State v. Lawborn, 88 N. C. 634 ; Com- 
 Chin Mook Sow, 51 Cal. 597 ; People monvvealth v. Murray, 13 Phil. (Pa.) 
 V. Johnson, 57 Cal. 571. 454. And so may the defendant in a 
 
 2 Keal V. People, 42 N. Y. 270. civil action for indecent assault. Le- 
 '^ State V. March, 1 Jones (N. C.) land v. Kauth, 47 Mich. 508. 
 
 L. 526. 8 Johnson v. Wiley, 74 Ind. 233 ; 
 
 * Smith V. Castles, 1 Gray (Mass.) United States o. Schindler, 10 Fed. 
 
 108. Kep. 547; Garbrough v. State, 71 
 
 5 Marx V. Hilsendegen, 46 Mich. Ala. 376. 
 
 336. 1" Nation v. People, 6 Park. (N. Y.) 
 
 6 Brown <;. People, 8 Hun (N. Y.) Cr. 258 ; Howell v. Ashmore, 2 Zab. 
 562; Crapo v. People, 15 Id. 269; (N. J.) 261. Compare Martin i-. Far- 
 Tifft V. Moor, 59 Barb. (N. Y.) 619. num, 24 N. H. 191 ; Langehorne c. 
 But see Eyan v. People, 79 N. Y. 593. Com., 76 Va. 1012. 
 
 ' Langhorne v. Commonwealth, 76 i^ Schultz v. Third Ave. E. R. Co., 
 
 Va. 1012. 89 N. Y. 242 ; reversing s. c, 46 Su- 
 
 8 People V, Cummins, 47 Mich. 334 ; perior, 211 ; Titus u. Ash, 24 N. H. 
 
338 CKEDIBILITY. [CHAP. XIII. 
 
 but the evidence must be direct and pointed, not indirect 
 and uncertain ;i and the unfriendly feeling must be shown 
 to exist at the time of the trial. ^ 
 
 A quarrel between the witness and the party against whom 
 he testifies, may be shown, although not relating to the sub- 
 ject-matter of the suit; and, if the witness denies that there 
 has been such a quarrel, he may be contradicted.^ Anything 
 disclosing bias, which may affect the credit of the witness in 
 the slightest degree may be proved,* such as statements by 
 the witness that he " would get even " with the party,^ or an 
 attempt by him to get from the party his copy of the con- 
 tract sued on.^ But the use, by the witness, of expressions 
 indicating ill feeling cannot be proved without showing what 
 the expressions were.'^ So, also, where the witness denies 
 having made threats against the party, evidence that he 
 attempted to bribe the party not to testify, is incompetent to 
 contradict him.^ If the witness admits on cross-examination 
 that he entertains unkind feelings towards the partj', it 
 seems that he cannot be asked the cause of those feelings.^ 
 Prejudice may be shov/n, but the facts and circumstances 
 causing such prejudice cannot be stated in detail.^" 
 
 § 203. Proof of Contradictory or lacousistent Statements, 
 generally. — Perhaps the most frequent method of impeach- 
 
 319; Pierce i-. Gilson, 9 Vt. 216; * Batdorff c. Farmer's Nat. Bank, 
 
 Martin v. Barnes, 7 Wis. 2.'59 ; Dog- 61 Pa. St. 179. 
 
 gett V. Tallman, 8 Conn. 108; Drew ^ gtarr^. Cragin, 24 Hun(N. Y)177. 
 
 V. Vi'ood, 26 N. H. 363; Bisliop f. S. P., Sager i). State, 11 Tex. App. 110. 
 
 State, 9 Ga. 121 ; Berseh c. State, 13 « Swctt v. Shumway, 102 Mass. 365. 
 
 Ind. 434; State <■. Montgomery, 28 " Hatchett c. Gibson, 13 Ala. 587 ; 
 
 Mo. 594; Folsom v. Brawn, 25 N. H. Cornelius v. State, 12 Arlc. 782. S. P., 
 
 114; Martin o. Farnham, Id. 195; State jj. Bilansky, 3 Minn. 246. 
 
 Huteliinson v.. Wheeler, 35 Vt. 330. ^ Cooley v. Norton, 4 Cush. (Mass.) 
 
 Contra, Edwards u. Sullivan, 8 Ired. 93. 
 
 (K. C.) L. 302. s Conyers v. Field, 61 Ga. 258. See 
 
 1 Gale V. N. Y. Central &c. R. E. also Pond v. Pond, 132 Mass. 219. 
 Co., 70 N. Y. 594. For decisions applying tlie above 
 
 2 Higham v. Gault, 15 Hun (N. Y.) principles in cases of accomplice wit- 
 383. nesses, see Allen v. State, 10 Ohio St. 
 
 s Beardsley v. Wildman, 41 Conn. 287 ; People u. Langtree, 12 Pac. C. 
 
 515 ; Long v. Lamkin, 9 Cush. (Mass.) L. J. 247. 
 
 361; Brewer v. Crosby, 11 Gray In cases of spies and detectives, 
 
 (Mass.) 29; Lucas v. Flynn, 35 Iowa, see State v. Tosney, 26 Minn. 262. 
 
 9; McHugh v. State, 31 Ala. 317; "Butler v. State, 34 Ark. 480; 
 
 Day i: Stickney, 14 Allen (Mass.) Polk y. State, 02 Ala. 237; Stale t. 
 
 255 ; Newcomb v. State, 37 Miss. 383 ; Glynn, 51 Vt. 577 ; Chelton v. State, 
 
 Daffln V. State, 1 1 Tex. App. 76. 45 Md. 564. 
 
§ 203.J CONTRADICTING AND IMPEACHING. 339 
 
 ing the credit of a witness is to show that he has made state- 
 ments out of court, on the same subject, inconsistent with 
 or contrary to what he swears at the trial. In order to show 
 this he must be previously cross-examined as to such alleged 
 statements so as to apprize him of the time, place, and per- 
 son involved in the supposed contradiction,^ and such state- 
 ments must also be material to the question at issue.^ The 
 object is to excite doubt and distrust as to the witness' testi- 
 mony regarding the particular transaction out of which the 
 discrepancy arises, and, in some cases, to raise suspicion as 
 to the truth of his testimony in general.^ The propriety of 
 such mode of impeachment is sustained by a multitude 
 of cases, a few of which are cited.* This rule applies to 
 parties testifjdng in their own behalf, and to defendants in 
 criminal cases who take the witness-stand,^ in the same 
 degree as to other witnesses. 
 
 The two statements, however, must conflict in some way. 
 The one made out of court must be inconsistent with some 
 fact stated by the witness in his testimony, or with its gen- 
 eral drift ;^ but if the two accounts are substantially incon- 
 sistent, that is all that is required.'^ Sometimes a statement 
 made out of court, after the witness has given his testimony, 
 may be proved to impeach him ; as, where after leaving the 
 stand he declares that what he has just sworn is a sheer fab- 
 rication.^ So, also, it may be shown that the witness has 
 testified to material facts which he omitted to state on a 
 former trial of the cause r^ or that he claimed to defend the 
 
 1 Infra, §§ 205-210. Compare 2 Dev. & B. (N. C.) L. 244 ; Lamb v. 
 Tooker v. Gormer, 2 Hilt. (N. Y.) 71. Stewart, 2 Ohio, 230 ; Stable v. Spofin, 
 
 2 Infra, § 209. See also De Sailly 8 S. & B. (Pa.) 317 ; Allen v. Har- 
 V. Morgan, 2 Esp. 691 ; Christian v. rison, 30 Vt. 219 ; Charlton i'. Unis, 4 
 Coomhe, Id. 489. Graft. (Va.) 58. 
 
 8 2 Phil. Ev. *9.59. 5 state v. Abrams, 8 "W". C. Rep. 
 
 4 Hand v. The Elvira, Gilp. (TJ. S.) (Oreg.) 509. 
 60 ; Wright v. Deklyne, Pet. C. Ct. « Hall v. Young, 37 N. H. 134. 
 199 ; McDaniel v. Baca, 2 Cal. 326 ; ' Martin v. Parnham, 25 N. H. 193. 
 
 Ployd !■. Wallace, 31 Ga. 688 ; Galena Proof of a different but not incon- 
 
 &c. R. R. Co. t). Fay, 16 111. 558 ; sistent statement is inadmissible to 
 
 Shields j;. Cunningham, 1 Blackf. impeach the witness. Hall u. Sim- 
 
 (Ind.) 86; Lawrence v. Lanning, 4 mons, 24 Tex. 227. 
 Ind. 194; IJ. 0. Draining Co. v. ^ peoplev. Moore, 15Wend. (N.Y.) 
 
 De Lizardi, 2 La. Ann. 281 ; Foot v. 419. Compare Craft v. Common- 
 
 Hunkins, 98 Mass. 523; Gerrish v. wealth (Ky.) 16 Rep. 621. 
 Pike, 36 N. H. 510 ; Murphy v. McNiel, ' Briggs v. Taylor, 35 Vt. 57. 
 
340 CEEDIEILITY. [CHAP. XIII. 
 
 suit on the former trial, on grounds wholly inconsistent with 
 his present attitude and testimony. ^ The fact that the state- 
 ment out of court was made when the witness was under 
 arrest is no ground for the exclusion of proof of it, for the 
 purpose of contradicting the witness, if his testimony at 
 the trial is inconsistent with such statement.^ 
 
 § 204. Can Former Statement be proved -where Witness 
 neither admits nor denies ? — Whether, if the witness, when 
 questioned as to a contradictory verbal statement, neither 
 admits nor denies the making it, proof of such statement 
 can be made, is a point upon which there is a diversity of 
 opinion. In Crowley v. Page, Parke, B., observed : " Evi- 
 dence of statements by witnesses on other occasions relevant 
 to the matter at issue, and inconsistent with the testimony 
 given by them on the trial, is always admissible in order to 
 impeach the value of that testimony ; but onlj'' such state- 
 ments as are relevant are admissible, and, in order to lay a 
 foundation for the admission of such contradictory state- 
 ments, and to enable the witness to explain them (and, as I 
 conceive, for that purpose only), the witness may be asked 
 whether he ever said what is suggested to him, with the 
 name of the person to Avhom, or in whose presence he is sup- 
 posed to have said it, or some other circumstance sufficient 
 
 1 Nye V. Merriam, 35 Vt. 438. Me. 466 ; Howe v. Thayer, 17 Pick. 
 
 2 Reyes v. State, 10 Tex. App. 1. (Mass.) 91. 
 
 Proving previous statements show- What writings may be introduced 
 
 ing hostility or ill feeling, the exist- to show it, see Smith v. State, 28 Ga. 
 
 ence of which is denied by the wit- 19 ; Boyd v. First &c. Bank, 25 Iowa, 
 
 ness, see Scott v. State, 64 Ind. 400 ; 255 ; Baylor v. Smithers, 1 T. B. Mon. 
 
 McFarlin v. State, 41 Tex. 23. (Ky.) 6 ; Robinson v. Heard, 15 Me. 
 
 ■ Showing discrepancies between tes- 296; Webster w. Calden, 55 Me. 165, 
 
 timony given at former and present Pittsburg &c. R. R. Co. v. Andrews, 
 
 trials, see Glenn u. Carson, 3 Greene 39 Md. 329 ; Neilson v. Columbia Ins. 
 
 (Iowa) 529; State v. MulhoUand, 16 Co., 1 Johns. (N. Y.) 301; Huff v. 
 
 La. Ann. 376 ; Commonwealth v. Bennett, 6 N. Y. 337 ; State v. Whit, 
 
 Mead, 12 Gray (Mass.) 167 ; People 5 Jones (N. C.) 224 ; Thayer u. Gal- 
 
 V. Morrigan, 29 Mich. 5 ; State v. Law- lup, 13 Wis. 539. 
 
 lor, 28 Minn. 216 ; Chesley v. Chesley, For instances of unsuccessful at- 
 
 37 N. H. 229 ; Cowden v, Reynolds, tempts to impeach witnesses by proof 
 
 12 S. & R. (Pa.) 281 ; Miller v. Stern, of contrary statements, see State v. 
 
 12 Pa. St. 383 ; Wormeley v. Com- Shannehan, 22 Iowa, 435 ; Shaw v. 
 
 monwealth, 10 Gratt. (Va.) 658. Emery, 42 Me. 59 ; Commonwealth v. 
 
 By what witnesses the contradic- Parker, 2 Cush. (Mass.) 212 , State 
 
 tion may be proved, see State d. Mar- v. Hickman, 75 Mo. ^^16; Bearss -•. 
 
 ler, 2 Ala. 43; State v. McDonald, 65 Copsley, 10 N. Y. 93; Weatherhead 
 
 V. Sewell, 9 Humph. (Tenn.) 272. 
 
§ 204.] CONTIIADICTIXG AND IMPEACHING. 341 
 
 to designate the particular occasion. If the witness, on the 
 cross-examination, admits the conversation imputed to him, 
 tliere is no necessity for giving further evidence of it; but if 
 he says he does not recollect, that is not an admission, and 
 you may give evidence on the other side to prove that the 
 vs^itness did say what is imputed, — always sujpposing the 
 statement to be relevant to the matter at issue. This has 
 always been my practice. If the rule were not so, you could 
 never contradict a witness who said he could not remem- 
 ber." ^ This doctrine has been followed in this country by 
 some courts,^ and denied and questioned by others; ^ and in 
 a case decided some years prior to Crowley v. Page, Tindal, 
 C. J., said he had never heard such evidence admitted in 
 contradiction, except where the witness had expressly denied 
 the statement; and he rejected the evidence.* Lord Abin- 
 ger, also, expressed a similar opinion in a subsequent case.^ 
 However, the ruling of Parke, B., appears to be the most 
 sound, and fittest to be followed. It is true, the proof of 
 the statement imputed to the witness, which he saj's he does 
 not remember to have made, is not admissible as a contra- 
 dictor)/ statement, for, until furtlier inquiry be made, there is 
 no apparent contradiction : but still, it seems, the evidence 
 should be admitted, for the imputed statement, when proved, 
 may be such as to amount to a direct contradiction of the 
 witness, and may also possibly convince the jury that the 
 witness did not speak truth in saying he did not remember 
 making the statement. If the rule were otherwise, it might 
 happen that, under the pretence of not remembering, a wit- 
 ness who has made a false statement, and who knows it to 
 be false, would escape contradiction and exposure. If the 
 ruling of Parke, B., is adopted, and the statement imputed 
 to the witness should appear on inquiry to contradict his 
 
 1 7 Car. & P. 791. MeVey w. Blair, 7 Ind. 590; State v. 
 
 2 Payne v. State, 60 Ala. 80; Sealy Reed, 60 Me. 550; Kobinson v. Pitzer, 
 V. State, 1 Ga. 21.3; Eay c. Bell, 24 3 W. Va. 335. 
 
 111. 444 ; Lewis v. State, 4 Kan. 296 ; * Pain v. Beeston, 1 Moo. & E. 20. 
 Chapman v. Coffin, 14 Gray (Mass.) ^ Long v. Hitchcock, 9 Car. & P. 
 
 454; Gibbs V. Linabury, 22 Mich. 479; 619. In this case the witness was 
 
 Nute V. Nute, 41 N. H. 60; People v. asked if he would swear that he had 
 
 Jackson, 3 Park. (N. Y.) Cr. 590; not made a certain oral statement, 
 
 Gregg V. Jamison, 55 Pa. St. 468; and he refused to so swear; he did 
 
 Janeway i\ State, 1 Head (Tenn.) 1-30. not plead want of recollection. 
 
 3 Wiggins V. Holnian, 5 Ind. -502; 
 
342 
 
 CREDIBILITY. 
 
 [chap. XIII. 
 
 evidence in court, it would evidently be proper to give him 
 an opportunity, on re-examination, to make any explanation 
 in his power as to the apparent contradiction.^ 
 
 § 205. Proof of Contradictory Written Statements. — A 
 witness may be impeached, also, by establishing a contradic- 
 tion or inconsistency between his testimony at the trial, and 
 the contents of a letter written by him, a deposition sworn 
 to by him, or any statement in writing the authorship of 
 which is proven to be his. But in order to make the writing 
 admissible for this purpose, it is not enough to state its con- 
 tents and to ask him, generally, if he wrote or swore to such 
 a paper, or one to such effect : the paper itself must be pro- 
 duced, under the well settled rule requiring the best evi- 
 dence, and it must be shown to the witness, who must be 
 asked if he wrote it or swore to it, as the case may be. This 
 was decided in the House of Lords in the Queen's Case.^ If 
 tlie original paper cannot be had, a certified copy thereof may 
 be used.* 
 
 1 2 Phil. Ev. *960. 
 
 2 2 Brod. & B. 286. In this case 
 the following question was put to the 
 judges for their opinion : " Whether 
 a, party on cross-examination would 
 he allowed to represent, in the state- 
 ment of a question, the contents of a 
 letter, and to ask the witness whether 
 the witness wrote a letter to any per- 
 son with such contents, or contents to 
 the like effect, without having first 
 shown to the witness the letter, and 
 having asked the witness whether the 
 witness wrote that letter, and his ad- 
 mitting that he wrote such letter ■? " 
 The judges answered in the negative ; 
 and the reasons of their opinion, as 
 delivered by Abbott, C. J., were that 
 " the contents of every written paper 
 are, according to the ordinary and 
 well-established rules of evidence, to 
 be proved by the paper itself, and by 
 that alone, if the paper be in exist- 
 ence. The proper course, therefore, 
 is to ask the witness whether or no 
 that letter is of the handwriting of 
 the witness; if the witness admits 
 that it is of his handwriting, the 
 cross-examining counsel may, at his 
 proper season, read that letter as evi- 
 dence ; and when the letter is pro- 
 
 duced, then the whole of the letter is 
 made evidence. One of the reasons 
 for the rule requiring the production 
 of written instruments, is in order 
 that the court may be possessed of 
 the whole. If the course wliich is 
 here proposed should be followed, the 
 cross-examining counsel may put the 
 court in possession only of ^ part of 
 the contents of the written paper; 
 and thus the court may never be in 
 possession of the wliole, though it 
 may happen that the whole, if pro- 
 duced, might have an eifect very dif- 
 ferent from that wliich might be 
 produced by the statement of a part. ' 
 But see 17 & 18 Vict. 125, §§ 24, 103, 
 and 28 & 29 Vict. c. 13, §§ 1, 5, where 
 the rule laid down in the Queen's Case 
 is reversed; and see also Sladden v. 
 Sergeant, 1 Post. & F. 322; Parrow 
 0. Blomfield, Id. 653, where it is held 
 that a parti/ testlfi/inff in his own case, 
 may be cross-examined as to the con- 
 tents of an affidavit or letter not pro- 
 duced. To the same effect, see Ireland 
 V. Stiff, 1 Post. & P. 340; Minns v. 
 Smith, Id. 318. See also McDonnell 
 V. Evans, 16 Jur. 103. 
 
 8 Eeg. V. Shellard, 9 Car. & P. 277. 
 
 As to contradicting a witness by 
 
§ 206.] CONTEADICTING AND IMFEACHIXG. 343 
 
 § 206. 'Whole Paper need not be shown WitneBS. — When 
 the letter or other paper is produced by the cross-examining 
 counsel, he may, if he thinks proper, show the witness only 
 a part, or only one or more lines of the letter, and not tiie 
 Avhole of it ; and may ask the witness whether he wrote such 
 part, or such one or more lines. 
 
 If the witness does not admit that he wrote the part 
 shown to him, he cannot be cross-examined as to the con- 
 tents of the letter, for the reason that the paper itself ought 
 to be produced, in order that the whole may be seen and the 
 one part explained by the other. If, on the other hand, the 
 witness should admit that he wrote the letter, still the rule 
 with respect to cross-examining as to the contents is precisely 
 the same ; the counsel cannot inquire of the witness whether 
 or not certain statements are in the letter; the letter itself 
 must be read to show whether it contains such statements.^ 
 With respect to the proper time for reading the letter, the 
 ordinary rule is, that it shall be read as the evidence of the 
 cross-examining counsel, as part of his evidence in his turn, 
 after he shall have opened his case ; but if he suggests to the 
 court that he wishes to have the letter read immediatelj% in 
 order to found certain questions upon the contents, which 
 cannot well or effectually be done without reading the letter 
 itself; in that case, for the more convenient administration of 
 justice, the letter is permitted to be read at the suggestion 
 of the counsel : still, however, it must be considered as part 
 of the evidence of the cross-examining counsel, and subject 
 to all the consequences of his having it so considered.^ 
 
 § 207. Showing Contents of Lost Writing. — The rule we 
 have just been considering applies only to- cases where the 
 writing by means of which it is sought to impeach the wit- 
 
 producing his deposition previously Brew v. Wadleigh, 7 Me. 94 ; Eroolcs 
 
 sworn to, see McNeill v. Arnold, 22 v. Goss, 61 Me. 307 ; Hastings v. Liv- 
 
 Ark. 477 ; State v. Hayden, 45 Iowa, ermore, 15 Gray (Mass.) 10 ; West v. 
 
 11; Johnson r. Chicago &c. E. E. Co., State, 2 Zah. (N. J.) 212; State v. 
 
 69 Id. 348; Grosse v. State, 11 Tex. Bryan, 89 N. C. 531; Knoll v. State, 
 
 App. 364. 55 Wis. 249. 
 
 Producing witness' letters to con- ^ De Sailly v. Morgan, 2 Brod. & B. 
 
 tradict him, see l)e Sobry v. I)e Laistre, 286, 288. 
 
 2 Har. & J. (Md.) ltd ; McLeod v. 2 2 Phil. Ev. *964, citing 2 Brod. 
 
 Bullard, 84 N. C. 515. &B. 288; Print. Evid. .337. S. P., 
 
 For further decisions illustrating Komertz v. East Kiver Nat. Bankj 49 
 
 the rules laid down in the ie.\t, see K. Y. 577. 
 
344; CREDIBILITY. [CIIAP. XIII. 
 
 ness is in existence, and within reach of the cross-examining 
 counsel, i.e., where it can be produced at the trial. If it be 
 lost, or its production cannot be procured by the ordinary- 
 method, the rule does not apply. In such a case, the only 
 method of impeaching the witness is by a resort to secondary 
 evidence, and, as in other cases, the necessity of resorting 
 thereto makes such evidence admissible. Thus it is held 
 that where the m'inutes of a witness' testimony at a former 
 trial have been lost, he may, if he tells a different story at 
 the second trial, be impeached by proving the contents of 
 such lost minutes by parol.^ So, if a witness swore at a for- 
 mer trial, that a written memorandum then produced by him 
 was made by himself at the time, and such ])aper has been 
 since lost, he may be impeached by parol proof that such lost 
 paper was not in his handwriting.^ 
 
 Regularly, in such cases, proof of the loss or destruction 
 of the writing, or of the fact that it is not in the possession 
 or within the reach of the cross-examining counsel, should 
 first be adduced, before cross-examining the witness as to its 
 contents, with a view to afterwards discredit him; but inas- 
 much as in some cases the introduction of such antecedent 
 proof might occasion great inconvenience, hy disturbing the 
 regular progress of the cause, and distracting the attention, 
 the court has, and in proper cases will exercise, the power, 
 either to admit, in the first instance, the witness' statement 
 of the contents of the writing, or to reserve the right of cross- 
 examining as to its contents, until the time has arrived when 
 the counsel on the opposite side shall enter upon his case.^ 
 
 § 208. Cross-Examination as to Previous Statements must 
 
 1 Pearce v. Farr, 2 Sm. & M. proved, and secondary evidence of the 
 (Miss.) 54. contents of tlie deposition was given 
 
 2 Com. V. Hunt, 4 Gray (Mass.) 421. before tlie witness was cross-examined. 
 ^ In some older cases in England See Davies v. Davies, 9 Car. & V. 252. 
 
 the giving sucli antecedent proof has So, also, counsel have been permitted, 
 been considered irregular (Graham v. during the cross-examination of an 
 Dyster, 2 Stark. 23 ; Sideways v. ])y- adverse witness, to call upon the op- 
 son. Id. 49) ; but more recently such posite party to produce a document 
 course has been frequently adopted, which he has received notice to pro- 
 Thus, in a criminal case (R. o. Shel- duce (Calvert v. Flower, 7 Car. & P. 
 lard, 9 Car. & P. 277), where it was 386), or to call a person to do so, who 
 proposed to cross-e.xamine a witness has been served with a subpoena duces 
 as to a statement made by him in his tecum (Atty.-General v. Bond, 9 Id. 
 deposition before a committing magis- 189). 
 trate, which was lost, the loss was 
 
§ 209.] CONTRADICTING AND IMPEACHING. 345 
 
 show whether they were in Writing or in 'Words. — Another 
 question put to the judges in the Queen's Case, was "Whether 
 counsel in cross-examining are entitled, if the counsel on the 
 other side object to it, to ask a witness whether he has made 
 representations of a particular nature, not specifying in his 
 question whether the question refers to representations in 
 writing or in words." ^ To this, the judges answered through 
 Abbott, C. J., that the witness could not properly be asked, 
 on cross-examination, whether he had written such a thing, 
 the proper course being to put the writing into his hands, 
 and ask him whether it be his writing : they considered also, 
 that if the witness were asked whether he had represented 
 such a thing, thej' should direct the counsel to ask whether 
 the representation had been made in writijig or bywords; 
 if the counsel should ask whether it had been made in writing, 
 the counsel on the other side would object to the question ; 
 if he should ask whetlier it had been made by words, that is, 
 whetlier the witness had said so and so, the counsel would 
 undoubtedly have a right to put that question. 
 
 § 209. Contradiction not allowed where Former Statement 
 is Impertinent or Immaterial. — (1) The general rule. The 
 books teem with applications of the proviso to the rule Ave 
 have just been considering, that the statements as tc^ which 
 a witness can be contradicted must be material and relevant 
 to the issue on trial ,: ^ if the witness is cross-examined as to 
 former statements which are impertinent or immaterial to the 
 issue, his answers are conclusive, and cannot be contradicted 
 for the purpose of impeaching him.^ But it is within the 
 
 1 2 Brod. & B. 292 ; Print. E v. p. 440. derson v. State, 1 Tex. App. 432 ; Brite 
 
 2 United States v. Diclcinson, 2 Mc- v. State, 10 Id. 368 ; and many otliers 
 Lean (U.S.) 325; Marx i. Bell, 48 to same effect. 
 
 Ala. 497 ; Washington v. State, 63 Ala. s United States r.White, 5 Or. C. C. 
 
 189 ; People v. Furtado, 57 Cal. 345 ; (U. S.) 38 ; United States v. Neverson, 
 
 Fogelman v. State, 32 Ind. 145 ; Mad- 1 Mackey (U. S.) 152 ; Rosenbaum v. 
 
 den V. Koester, 52 Iowa, 692 ; State v. State, 33 Ala. 354 ; Blakey v. Blakey, 
 
 Benner, 64 Me. 267 ; Davis v. Keyes, Id. 611 ; Seale v. Chamblis, 35 Ala. 19 ; 
 
 112 Mass. 436; Kaler v. Builders' &c. Haley v. State, 63 Ala. 83; People v. 
 
 Ins. Co., 120 Mass. 333 ; Howard v. McKeller, 53 Cal. 65 ; People v. Bell, 
 
 Patrick, 43 Mich. 121 ; State v. Staley, Id. 119; Beekman v. Skaggs, 59 Cal. 
 
 14 Minn. 105; State i;. Spaulding, 541 ; McKeone k. People, 6 Colo. 346; 
 
 (Minn.) 25 N. W. Rep. 793; Harper Winton v. Meeker, 25 Conn. 456 ; Wil- 
 
 V. Indianapolis &c. R. R. Co., 47 Mo. kinson u. Davis, 34 Ga. 549; Cokely 
 
 567 ; Gandolpho v. Appleton, 40 N. Y. v. State, 4 Iowa, 477 ; Ware v. Ware, 
 
 5;33; Goodall .. State, 1 Oreg. 333; 8 Greenl. (Me.) 42; Davis v. Robey, 
 
 Clinton v. State, 33 Ohio St. 27; Hen- 64 Me. 427; Goodliand i,. Benton, 6 
 
346 
 
 CEEDIBILITY. 
 
 [chap. XIII. 
 
 sound discretion of the trial judge to allow the cross-examiner 
 to put questions not relevant to the issue, for the purpose of 
 impairing the credit of the witness with the jury,^ otherwise 
 than by contradicting him ; ^ as, for instance, when the coun- 
 sel desires to exhibit the character of the witness to the jury.^ 
 Such departure from the rule is sometimes taken in important 
 criminal cases ; and the court may submijt it to the jurj"- in 
 such a case, whether, on the whole evidence, they believe 
 the main fact testified to by the witness.* And the rule is 
 confined strictly to testimony introduced on cross-examination, 
 not applying to that adduced by the opposite party.^ 
 
 (2) What statements are material and subject to contradic- 
 tion. In determining what matters are pertinent and material 
 to the issue, and v/hat are merely collateral thereto, the test 
 is this: if the answer of the witness is a matter which the 
 cross-examining party would be allowed on his part to prove 
 in evidence ; if it have such a connection with the issue that 
 such party would be allowed to give it in evidence, — then it 
 is a matter in which the witness may be contradicted.^ TIius, 
 
 Gill & J. (Md.) 481 ; Wolfe v. Har- 
 ver, 1 Gill (Md.) 84; Com. „. Farrar, 
 10 Gray (Mass.) 6 ; People v. Knapp, 
 42 Mich. 267 ; Iron Mountain Bank v. 
 Murdocf , 62 Mo. 70 ; Tibbetts v. Flan- 
 ders, 18 N. H. 284 ; Plato v. Reynolds, 
 27 N. H. 586 ; Dewey v. Williams, 43 
 N. H. 384 ; Sumner v. Crawford, 45 
 N. H. 416 ; Carpenter D.Ward,30 N.Y. 
 243 ; People v. Ware, 92 N. Y. 653 ; 
 s. c, 29 Hun, 473 ; Morgan v. Frees, 
 15 Barb. (N. Y.) 352 ; Eosenweig v. 
 People, 63 Id. 635 ; s. c, 6 Lans. 462 ; 
 Crounse v. Fitch, 1 Abb. (N. Y.) App. 
 Dec. 475 ; s. c, 14 Abb. Pr. 340 ; 
 Green v. Rice, 33 N.Y. Superior, 292; 
 People <,. Cox, 21 Hun (N. Y.) 47; 
 Stape V. People, Id. 399; Hilsey y. 
 Palmer, 32 Id. 472 ; Clark v. Clark, 65 
 N. C. 655 ; State v. Eliot t, 68 N. C. 124 ; 
 State r. Patterson, 74 N. C. 157 ; State 
 V. Roberts, 81 N. C. 605 ; Hildeburn v. 
 Curran, 05 Pa. St. 59 ; Hester v. Com- 
 monwealth, 85 Pa. St. 139; Rocco v. 
 Parczyk, 9 Lea (Tenn.) 328; State 
 I). Thibeau, 30 Vt. 100; and many 
 others. 
 
 But, it seems, if the question is in 
 any wise material to the issue, his 
 
 answer can be contradicted. Smith v. 
 Henry, 2 Bailey (S. C.) 118; Dozier 
 V. Joyce, 8 Port. (.11a.) 303; Ortez r. 
 Jewett, 23 Ala. 662 ; Commonwealth 
 V. Buzzell, 16 Pick. (Mass.) 163 ; Der- 
 by V. Gallup, 5 Minn. 119; Harris v. 
 Wilson, 7 Wend. (N.Y.) 57; Schenly 
 V. Commonwealth, 86 Pa. St. 29; 
 Noonan v. Ilsley, 22 Wis. 27 ; Hicks 
 V. Stone, 13 Minn. 434. See La Beau 
 ■0. People, 34 N. Y. 223. 
 
 1 State V. McCartney, 17 Minn. 76. 
 
 2 McKeone v. People, 6 Colo. 346. 
 
 3 Berry v. People, 1 N. Y. Cr. 43 ; 
 affirmed. Id. 57. 
 
 * Powers V. Leach, 26 Vt. 270. 
 
 6 State V. Sargent, 32 Me. 429. See 
 also Welch v. Franklin Ins. Co., 23 W. 
 Va. 288. 
 
 ^ Per Pollock, C. B., in Attorney- 
 General V. Hitchcock, 1 Exch. 91, 99, 
 who, continuing, remarked : " Or it 
 may be well put, or perhaps better, in 
 the language of my brother Alderson 
 (during the argument), that, if you 
 ask a witness whether he has said so 
 and so, and the matter he is supposed 
 ti have said would, if he had said it, 
 contradict any other part of his testi- 
 
§ 209.] 
 
 CONTRADICTING AND IMPSACHING. 
 
 347 
 
 it has been held that a witness may be impeached by showing 
 (he having denied it) that he had endeavored to suborn wit- 
 nesses to give false evidence ; ^ or had used revengeful or 
 spiteful language towards tlie cross-examining party ;^ or that 
 he had offered to procure testimony for the party cross-exam- 
 ining him, for a money consideration;^ or had solicited the 
 aid of certain persons in effecting the escape of the prisoner 
 on trial;* or had made certain threats against the man for 
 whose murder the prisoner is on trial ;^ or (being a witness 
 for the defence), that he had said the accused was " a worth- 
 less fellow " ; ^ or (testifying as a subscribing witness in sup- 
 port of a will), that he had said the will " was not worth a 
 snap of his fingers and might be broken ." ^ 
 
 So, also, it has been held that an immoral relationship exist- 
 ing between a female witness and the party calling her may be 
 shown, she having denied such relation ; ^ that in an action 
 where the question turned upon the consideration paid for 
 
 mony, then you may call another wit- 
 ness to prove that he had said so, in 
 order that the jury may believe the 
 account of the transaction which he 
 gave to that other witness to be the 
 truth, and that the statement he made 
 on oath in the witness-box is not true." 
 Ahierson, B., himself, laid down the 
 rule in the sam.e case,* as follows : " A 
 witness may be asked any question, 
 which, if answered, would qualify or 
 contradict some previous part of that 
 witness' testimony, given on the trial 
 of the issue ; and if that question is 
 so put to him and answered, the oppo- 
 site party may then contradict him, 
 and for this simple reason, that the 
 contradiction qualifies or contradicts 
 the previous part of the witness' testi- 
 mony, and so removes it. It is true 
 the effect of the contradiction is some- 
 thing beyond that, as tending to show 
 that no part of the witness' testimony 
 can be relied on ; but the effect would 
 be the same, if the question had been 
 answered in the affirmative. Now the 
 question is this : Can you ask a wit- 
 ness as to what he is supposed to have 
 said on a previous occasion t You 
 may ask him as to any fact material 
 
 * Ibid. 
 
 to the issue ; and, if he denies it, you 
 may prove that fact, as you are at 
 liberty to prove any fact material to 
 the issue; and, in that case, though 
 it may not be thought necessary to 
 put the question previously to the 
 witness, yet it would bo but just to 
 do so." 
 
 1 Trial of Lord Stafford, 7 How. St. 
 Tr, 1400. S. P., Morgan v. Frees, 15 
 Barb. (N.Y. 352; Newton w. Harris, 6 
 N.Y. 345. Contra, Harris v. Tippet, 
 2 Campb. 637. 
 
 2 E. V. Yewin, 2 Campb. 638 n ; 
 Tyler v. Pomeroy, 8 Allen (Mass.) 
 480; Emerson v. Stevens, 6 Id. 112. 
 See also Munden v. Bailey, 70 Ala'. 63; 
 Phoenix v. Castner, 108 111. 207. 
 
 2 Lewis V. Steiger (Cal.), 8 West 
 Coast Rep. 434. See also TuUis „. 
 State, 30 Ohio St. 200. 
 
 * Butler u. State, 7 Tex. App. 635. 
 
 ^ Gaines u. Commonwealth, 50 Pa. 
 St. 319; People v. Williams, 18 Cal. 
 187. 
 
 » Minims v. State, 16 Ohio St. 221. 
 
 '' Beaubien v. Cicotte, 12 Mich. 459. 
 S. P., Nuckols V. Jones, 8 Graft. (Va.) 
 267, 
 
 s Thomas v. David, 7 Car. & P. 350. 
 102. 
 
348 CEEDIBILITY. [CHAP. XIII. 
 
 discounting the bill in suit, what a witness said on a former 
 trial between the same parties respecting another bill, dis- 
 counted at the same time and under the same circumstances, 
 and denies having said, could be proved.^ Again, where the 
 question was whether a sale was in fraud of a certain creditor, 
 it may be shown that he had previously fixed the amount of 
 his claim at a less sum than he swears it to be at the trial.^ 
 In a trial for bigamy, the alleged second wife having testified 
 that she had never been married to the defendant, her previous 
 admissions to the contrary may be proved.^ 
 
 (3) What statements are immaterial, impertinent, or col- 
 lateral, and not provable to contradict the witness. It has been 
 held that a witness having denied that he had been paid for 
 coming from another State to testify, his admission to the 
 contrary was not provable ; * that a witness having denied on 
 cross-examination that he had attempted to dissuade another 
 witness from attending the trial, it could not be shown that 
 he had done so ; ^ that the deposition of a witness in another 
 cause, stating as facts, circumstances pertinent then, but 
 not' so in the present case, cannot be read to contradict him;^ 
 that a witness on a trial for burglary who, upon direct exami- 
 nation, testified only that she discovered the accused in her 
 house in the night time, could not be asked, upon cross- 
 examination, if she had not subsequently stated that she did 
 not think defendant intended to steal anything.^ 
 
 § 210. Sho'wing Previous Expressions of Opinion Inconsistent 
 with Witness' Testimony. — The statement sought to be drawn 
 out on cross-examination, with a view to show a contradictory 
 statement by the witness before the trial, must not only 
 rehjte to the issue, but it must be a matter of fact, and not 
 
 1 Meagoe v. Simmons, 3. Car. & P. rule laid down in Lord Stafford's case, 
 7G. 7 How. St. Tr. 140Q, and is criticised 
 
 2 Couillard v. Duncan, 6 Allen by Mr. Phillips in his Treatise on Evi- 
 (Mass.) 440. dence (Vol. II. p. *972). See also 
 
 2 State V. Johnson, 12 Minn. 476. Attorney -General v. Hitchcock, 1 
 
 For further like illustrations, see State Exch. 91. 
 
 V. McQueen, 1 Jones (N. C.) L. 177 ; « Lamalere v. Caze, 1 Wash. (U. S.) 
 
 Commonwealth v. Lamberton,2 Brews. 413. 
 (Pa.) 565. ' State v. Maxwell, 42 Iowa, 208. 
 
 * State V. Patterson, 2 Ired. (N. C.) For further instances, see Atkins c. 
 
 L. 346. State, 16 Ark. 568 ; Com. o. Kennon, 
 
 5 Harris v. Tippet, 2 Campb. 637. 130 Mass. 39 ; Nation v. People, 6 Park 
 
 This case seems to conflict with the (N. Y.) Cr. 258. 
 
§ 210.] 
 
 CONTRADICTING AND IMPEACHING. 
 
 349 
 
 merely a former opinion of the witness in relation to the 
 matter in issue, inconsistent with a different opinion appear- 
 ing to be now held by him from his testimony ; ^ unless the 
 matter be one upon which the opinion of the witness be 
 admissible in evidence, in which event he may be contradicted 
 by proof of a previous expression of an opinion contrary to 
 that expressed by him upon the stand.^ Thus the evidence 
 of an expert may be contradicted by showing that at another 
 time he had expressed a different opinion ; ^ and former 
 opinions of ordinary witnesses, on questions of value, ideiitity, 
 handwriting, sanity, and the like, may be proved for the pur- 
 pose of throwing discredit on their testimonj^ on those points.* 
 
 ^ The case in which this question 
 arose was an action on a marine policy 
 upon a ship. Tlie broker who effected 
 the policy for the plaintiff, being 
 sworn as a witness for the defendant, 
 stated that he omitted to make a cer- 
 tain disclosure which it was now con- 
 tended was material; and therefore 
 the omission would avoid the policy. 
 On cross-examination, he denied that 
 he had, shortly after effecting the 
 policy, declared his opinion that the 
 underwriters had not (in their defence) 
 a leg to stand on. The plaintiff called 
 a witness to contradict this, by show- 
 ing that he had said so. Tindal, 
 C. J. : " It seems to me hardly to come 
 within the rule relating to a matter 
 directly connected with the issue. If 
 there had been any contradiction of 
 the broker's assertion of a matter of 
 fact, as to whether he had or had not 
 made the communiCRtion, it might 
 have been received. But this is only 
 
 a contradiction on a matter of judg- 
 ment, and I think it not receivable." 
 Elton V. I.arkins, 5 Car. & P. 385. 
 This decision will suggest to the mind 
 of the experienced practitioner the 
 question, so often put to a ma,terial 
 witness, whether he had not declared 
 that he knew nothing concerning the 
 cause on trial; and the value which 
 an answer to such an inquiry, one way 
 or the other, should have in the eye of 
 judicial inquiry. 2 Phil. Ev. *90.3. 
 
 2 Daniels v. Conrad, 4 Leigh (Va.) 
 401-406. 
 
 ^ Sanderson v. Nashua, 44 N. H. 492. 
 
 1 Dalton's Appeal (Mich.), 26 N.W. 
 Rep. 5-39. See also Cochran v. Ams- 
 den (Ind.) 3 K. East. Kep. 934; 
 Rucker i;. Beaty, 3 Ind. 70 ; Lane v. 
 Bryant, 9 Gray (Mass.) 245 ; Hubbell 
 V. Bissell, 2 Allen (Mass.) 196 ; City 
 Bank ;;. Young, 43 N. H. 457 ; Holmes 
 V. Anderson, 18 Barb. (N. Y.) 420 ; 
 Ripon V. Bittel, 30 Wis. 614. 
 
CHAPTER XIV. 
 
 DISPKOVING OR IMPEACHING THE EVIDENCE OF 
 one's own WITNESS. 
 
 § 211. The General Rule forbidding Impeachment. 
 
 § 212. Its Scope and Extent. 
 
 § 213. Its Limits and Exceptions. 
 
 § 214. Fact sworn to may be disproved. 
 
 § 215. How far the Rule applies where One Party calls the Adverse Party. 
 
 § 210. Unfriendly or Hostile Witnesses. 
 
 § 211. The General Rule forbidding Impeachment, — A 
 
 party who voluntarily puts a witness on the stand to testify 
 in proof of his cause, thereby vouches for the witness as a 
 person worthy of belief, and is, as a general rule, thereafter 
 estopped from impeaching such witness, or assailing his char- 
 acter for truth and veracity.^ He can neither impeach him 
 by general evidence of character,^ nor by proof of contradic- 
 tory statements,'^ or interest in the result of the trial.* The 
 removal of this salutary restriction on the right of impeach- 
 ment would enable the party calling a witness to destroy 
 him if his testimony happened to be adverse, and to make 
 him a good witness if his testimony suited his purpose, — a 
 condition of things not conducive to the proper administra- 
 tion of justice.^ 
 
 1 Eockwood V. Poundstone, 38 111, 219 ; Eoundtree v. Tibbs, 4 Hayw. 
 199; Griffin v. Wall, 32 Ala. 149; (Tenn.) 108. 
 
 Thorn v. Moore, 21 Iowa, 285 ; Win- = B. N. P. 297. Mr. Phillips in his 
 
 der V. Diffenderfer, 2 Bland (Md.) admirable treatise on evidence says, 
 
 166; Pollock v. Pollock, 71 N. Y. as to this point: "It is clear a party 
 
 137 ; Sisson v. Conger, 1 Tliomp. & C. is not to be sacriiiced to his witness ; 
 
 (N. Y.)564; Perry v. Massey, 1 Bail, he is not represented by him, nor 
 
 (S. C.) 32; Fillmore v. Union Pac. B. ought he to be identified with him, 
 
 II. Co., 2 Wyom. T. 94. or bound by all he may say. On 
 
 2 Coulter V. American &c. Exp. Co., the other hand, a party ought to be 
 56 N. Y. 585. placed under such restrictions as may 
 
 ^ Coulter V. American c&c. Exp. Co., be necessary for preventing unfair 
 
 supra; People v. Safford, 5 Den. (N. or dishonest practice. If a party 
 
 Y.) 112; Sanchez u. People, 4 Park, produces a witness, knowing him at 
 
 (N. Y.) Cr. 535 ; s. c, 22 N. Y. 147. the time to be a man of infamous 
 
 * Helm V. Handley, 1 Litt. (Ky.) character, and that witness in giving 
 
§ 212.] 
 
 IMPEACHING one's OWN WITNESS. 
 
 § 212. Its Scope and Extent. — In applying this salutary 
 rule, it has been held, that where a party calls two witnesses, 
 the second of whom contradicts the first, he cannot recall the 
 first witness to disprove what the second has said;i that 
 where the party's own witness has sworn he was conscious 
 and recollected what he did on a certain occasion, the *party 
 cannot show that he was, in fact, insane at the time in ques- 
 tion;^ that a party cannot prove that his own witness had, 
 at different times, made declarations at variance with his tes- 
 timony,^ or even ask him if he had not made such contradic- 
 toiy statements,* or if he is not interested in the suit.^ 
 
 The rule is the same where depositions are used, and where 
 both parties join in taking the deposition of a witness, 
 neither can impeach his credibility;^ but where the party 
 taking the deposition refuses to use it, and the adverse party- 
 reads it, the deponent becomes the witness of the party read- 
 ing the deposition, and may be impeached by the other part}'.'' 
 In analogy with this doctrine, where one party calls a witness, 
 and after examination and cross-examination, he is recalled 
 by the party adverse to the party originally calling him, he 
 
 evidence disappoints or deceives liim, 
 he ought not to be allowed to prove 
 his infamy for the purpose of destroy- 
 ing the effect of his evidence. Know- 
 ing the infamy of his character, he 
 had more reason to suspect and dis- 
 believe than to trust )iim: nor has he 
 any just ground to complain that his 
 cause is prejudiced by false evidence, 
 as he could expect nothing less fiom 
 such a witness ; and he suffers not 
 unjustly for using a witness whom 
 he knew to be infamous. But if a 
 party, not acting himself a dishonest 
 part, is deceived by his witness • — or 
 if a witness, professing himself a 
 friend, turns out an enemy, and after 
 promising proof of one kind gives 
 evidence directly contrary — is the 
 party to be restrained from laying 
 the true state of the case before the 
 court? The common sense of man- 
 kind might be expected to answer 
 this proposition in the negative, and 
 to decide that the true state of the 
 case should be made known." 2 I'hil. 
 Ev. *081. 
 
 1 Rapp V. Le Blanc, 1 Dall. (U. S.) 
 63. See also Delisle v. Priestman, 1 
 Browne (Pa.) 176, 182; Cowden c 
 Reynolds, 12 S. & R. (Pa.) 281. See 
 hfra, § 214. 
 
 2 Montgomery v. Hunt, 5 Cal. .366. 
 
 * Chamberlain v. Sands, 27 Me. 458; 
 People V. Jacobs, 49 Cal. 384 ; Com- 
 monwealth V. Starkweather, 10 Cush. 
 (Mass.) 59; Adams v. Wheeler, 97 
 Mass. 67; Brewer v. Porch, 2 Harr. 
 (N. J.) 377; Stearns o. Mechanics' 
 Bank, 53 Pa. St. 490. To the con- 
 trary. Champ V. Commonwealth, 2 
 Mete. (Ky.) 17; Delisle v. Priestman, 
 1 Browne (Pa.) 176. And see Mc- 
 Dowell 1. General Ins. Co., 10 La. 
 Ann. 16, and iti/ra in this section. 
 
 * Com. V. Welsh, 4 Gray (Mass.) 
 535 ; Moore v. Chicago &c. R. R. Co., 
 59 Miss. 243. 
 
 6 Fairly v. Fairly, 38 Miss. 280. 
 
 ^ Story V. Saunders, 8 Humph. 
 (Tenn.) 063. 
 
 ' Richmond v. Richmond, 10 Yerg. 
 (Tenn.) 343; Cudworth v. South Car- 
 olina Ins. Co., 4 Rich. (S. C.) 416. 
 
352 ■ CREDIBILITY. [CHAP. XIV. 
 
 becomes the latter's witness, and cannot be discredited by 
 him ; ^ and the same rule applies whei'e the witness, upou 
 cross-examination, is inquired of regarding a new subject, 
 not connected with any matter for which his evidence was 
 offered by the other side, but for the benefit of the cross- 
 exaioining party .^ 
 
 Most of the difficulty hitherto experienced by the courts 
 in applying the rule of evidence we are now considering, 
 has been on the question whether a party may show that a 
 wituess called by him, and who has testified against him, has 
 made at other times a statement contrary to that made by 
 him at the trial. The better opinion seems to be that, ordi- 
 narily, this cannot be done; that the party having called the 
 witness must take him for better or for worse, and must be 
 bound by all his statements on the stand ; that he cannot 
 contradict him except by proving/arfs hearing upon the issue,^ 
 unless the witness has deceived the party, promising to testify 
 one way and swearing another, and the party himself is en- 
 tirely innocent, calling him in good faith, and fully believing 
 him to be a friendly and not a hostile witness. In such cases, 
 according to what the writer deems the weight of authority, 
 the party (on the ground of surprise) may show the facts, 
 i.e., that the testimony of the witness is contrary to what he 
 disclosed on his preparatory examination, or to what the 
 party calling him had reason to believe he would swear to, 
 or anything else tending to show that the witness had de- 
 ceived him. Any other course would seem to place an inno- 
 cent litigant at the mercy of a designing and unscrupulous 
 witness.* 
 
 '■ Com. V. Hudson, 11 Gray (Mass.) interesting topic would unduly swell 
 
 64; Craig v. Grant, 6 Micih. 447. the limited space available for its 
 
 Compare State v. Taylor, 88 N. C. discussion here. A mere citation of 
 
 694. Contra, State v. Jones, 64 Mo. some of them is all that can be at- 
 
 391. tempted. 
 
 2 Tairchild v. Bascom, 35 Vt, 398 ; The following hold that evidence 
 First Baptist Church ii. Brooklyn Ins. of the previous contradictory state- 
 Co., 23 How. (IS. Y.) Pr. 448. To ment cannot be given: Holdsworth 
 the contrary, see Lewis v. Hodgdon, v. Mayor of Dartmouth, 2 Moo. & R. 
 17 Me. 267. See also Jones v. People, 153 ; Winier v. Brett, Id. 357 ; Allan 
 2 Colo. 351; Artz v. Chicago &c. R. r. 'Hutchins, Id. 358n; Queen v. Ball, 
 R. Co., 44 Iowa, 284 ; Bebee v. Tin- 8 C. & P. 745 ; Queen v. Parr, Id. 768 ; 
 ker, 2 Root (Conn.) 160. ~ R. v. Moran, Jebb, C. C. 91 ; Ir. Cr. 
 
 3 See infra, § 214. R. 506 n (a). 
 
 * A review of the cases upon this The following decide that such 
 
§ 213.] 
 
 IMPEACHING ONE S OWN WITNESS. 
 
 353 
 
 §213. Its Limits and Exceptions — There are some excep- 
 tions to this rule forbidding a party to disprove or impeach 
 the testimony of his own witness. The principal ones are : 
 (1) Where the party is compelled to call the witness in order 
 to make out his case ; (2) where the object is to show the 
 true facts, not merely to discredit the witness; (3) where 
 the witness is an adverse party; and (4) where he is hostile 
 or unfriendly. The iirst of these exceptions will be consid- 
 
 evidence is admissible under the 
 circumstances stated in the text : 
 King V. Olroyd, R. & R. C. 0. 88; 
 Kwer V. Ambrose, 3 Barn. & C. 749 ; 
 Bernasconi v. Fairbrother, cited in 
 1 Moo. & R. 427 ; Wright v. Beckett, 
 Id. 414; Dunn v. Aslett, 2 Id. 122; 
 Rice V. New England Marine Ins. Co., 
 4 Pick. (Mass.) 4,39; Brown v. Bel- 
 lows, Id. 179; State v. Norris, 1 
 Hayw. (N. C.) 4.37, 438; Bank of 
 Northern Liberties v. Davis, 6 Watts 
 & S. (Pa.) 285; Melluish c. Collier, 
 15 Q. B. 878; Hemingway v. Garth, 
 51 Ala. 5-30 ; Blackburn v. Cora., 12 
 Bush (Ky.) 181. 
 
 Mr. Phillips says : " Tlie chief ob- 
 jection to the proposed evidence 
 appears to be this, that a party after 
 calling a witness as a witness of credit 
 shall not be allowed to discredit him. 
 At first sight, this has the semblance 
 of a principle of plain dealing. But 
 let the same proposition be expressed 
 in other terms — as near the facts of 
 the case, if not nearer — and let it 
 run thus : A party, after giving credit 
 to a witness for speaking truth, shall 
 not, although deceived by him, be 
 allowed to show that the witness has 
 deceived. The proposition so ex- 
 pressed might, to an unlearned reader, 
 appear scarcely consistent with the 
 principles of justice. The proposi- 
 tion asserts a fact as the foundation 
 of .the rule, — that a party by calling 
 a witness places him in the box as a 
 toiiness of credit. But is this the fact 1 
 The party does not vouch for his 
 credit, nor ought he to be treated as 
 if he had given such voucher. He 
 may know little, perhaps nothing, of 
 the witness's character, or may believe 
 
 it to be doubtful, and yet may not 
 unreasonably give him credit for the 
 truth of his statements, — not how- 
 ever intending thereby to vouch for 
 him as a witness of credit ; and if in 
 such cases the witness deceives him, 
 his deceit ought to be exposed, and 
 his evidence weighed in the scales of 
 truth. But, it is said, he shall not 
 give evidence to discredit his own 
 witness. The answer to this is, that 
 the witness ought not to receive more 
 credit than he deserves, and if he has 
 given different statements of the same 
 transactions, no wrong is done to him 
 by proving them. Whether sucli 
 proof may discredit him at all, or to 
 what extent, the jury are to deter- 
 mine: the object of the party may 
 be to discredit, and the witness may 
 deserve to be discredited; but the 
 duty of the judge is to search out the 
 truth, and to take care that the exact 
 degree of credit due to each witness, 
 and not more, shall be fairly and 
 justly apportioned." 2 Phil. Ev. 
 *995. 
 
 In England, and sevei-al of the 
 States, proof of the previous contrary 
 statement is rendered admissible by 
 statute, the proper foundation having 
 first been laid. 17 & 18 Vict. c. 125; 
 Dean u. Knight, 1 Eost. & F. 433; 
 Jackson v. Thomas, 10 W. R. 42; 
 Mass. Pub. St., c. 169, § 22; Black- 
 burn V. Com., 12 Bush (Ky.) 181; 
 Hemmingway r. Garth, 51 Ala. 530; 
 Brooks V. Weeks, 121 Mass. 4.33; 
 White u. State, 10 Tex. App. 381; 
 Com. V. Donahue, 133 Mass. 407 ; 
 People V. De Witt (Cal.), 9 W. C. 
 Rep. 696. See also Hildreth v. Shep- 
 ard, 65 Barb. (N. Y.) 265. 
 
354 CIlBDIBILITy. [chap. XIV. 
 
 ered here ; the others will form the subjects of subsequent 
 sections.! 
 
 Where the witness is not of the party's own selection, but 
 is forced upon him, as it were, as the only person by whose 
 testimony a material fact can be proved, — as in the case of 
 a subscribing witness to a deed, or will, or the like, — it 
 would seem that he should not be considered the witness of 
 the party calling him, within the meaning of the rule ; and 
 the latter should be permitted to impeach him to the same 
 extent as he could, if he had been called by his adversary .^ 
 And it has been held by courts of the highest respectability, 
 that in such cases the rule does not apply.^ Tims, where in' 
 a contested will case, the proponent produced the three sub- 
 scribing witnesses, examining two, but declining to examine 
 the third, until ordered to do so by the court, and then only 
 as to the formality of the execution of the will, — the witness 
 having sworn on cross-examination, that the testator was in- 
 sane at the time of executing the will, — it was held that the 
 proponent could iu)pe,ach the vdtness by showing his previous 
 declarations, to the effect that the testator was of sound mind 
 when the will was executed.* In analogy with this principle, 
 where a party is taken by surprise by the witness, — as where 
 being called under a well-founded supposition that he will 
 swear to certain facts, he testifies to other and contrary facts, 
 or gives other unexpected testimony, — the party may interro- 
 gate him in respect to his previous declarations inconsistent 
 with his testimony, for the purpose of probing his recollec- 
 tion, recalling to his mind the statements he has previously 
 made, and drawing out explanation of apparent inconsis- 
 tency.^ This is also allowed in criminal cases, where the tes- 
 timony of the witness is as to facts which are injurious to the 
 party calling him.^ 
 
 § 214. Fact sworn to may be disproved. — "But if a wit- 
 
 1 §§ 214-216. Bellows, 4 Id. 170; Brown v. Buckley, 
 
 2 2 Evans' Poth. 232, 260. 1 McCart. (N. J.) 294. 
 
 3 Dennett ;;. Dow, 17 Me. 19 ; Shorey * Thornton v. Thornton, 39 Vt. 122 ; 
 V. Ilussey, 32 Me. 579; Olinde v. Harden r. Hayes, 9 Pa. St. 151. 
 Saizan, 10 La. Ann. 153; Williams "^ BuUard «. Pearsall, 53 N. Y. 230. 
 ?■. Walker, 2 Rich. (S. C.) Eq. 291. S. P., McDanial v. State, 53 Ga. 253. 
 But see Whitaker v. Salisbury, 15 '^ Thomas v. State, 14 Tex. App. 
 Pick. (Mass.) 544, 545, Brown!'. 70 , Tyler ;•. State, 13 Id. 205 ; Shan- 
 non V. State, Id. 139. 
 
§ 214.] 
 
 IMPEACHING ONE S OWN WITNESS. 
 
 iiess state facts in a cause ■which make against the party who 
 called him, yet the party may call other witnesses to prove 
 that those facts were otherwise ; for such facts are evidence 
 in the cause, and the other witness is not called directly to 
 discredit the first, but the impeachment of his credit is inci- 
 dental, and consequential only." ^ The rule is thus expressed 
 in the American cases: Although a party may not discredit 
 his own witness by testimony as to his general character, he 
 may give evidence to contradict any particular and material 
 fact to which the Avitness has testified. ^ He may show that 
 the witness is mistaken or that the facts are different from 
 the version he gives of them. ;^ i.e., for the purpose of uphold- 
 ing his cause of action or defence (not for the purpose of 
 impeaching the witness), he may show how the fad really is.* 
 If he calls a witness to prove a particular fact, and fails in 
 establishing it by him (or if he disproves it), the fact may 
 nevertheless be proved by another witness, or the first one's 
 account be shown to be incorrect. A party may always 
 correct his own witness, though by directly contradicting 
 liim.^ If such evidence were to be excluded, the conse- 
 
 1 B. N. P. 397. 
 
 2 United States v. Watkins, 3 Crancli 
 (U. S.) C. Ct. 441 ; Norwood v. Ken- 
 field, 30 Gal. 393; Roclftvood v. 
 Poundstone, 38 111. 199; Thorn ... 
 Moore, 21 Iowa, 285 ; Burkhalter 
 V. Edwards, 16 Ga. 593 ; Cronan c. 
 Roljerts, 65 Ga. 678; Gray v. Gray, 
 3 Litt. (Ky.) 465; Brown i. Osgood, 
 25 Me. 505 ; Shelton v. Hampton, 6 
 Ired. (N. C.) L. 216; Bradford v. 
 Bush, 10 Ala. 386; Warren v. Ga- 
 briel, 51 Ala. 235 ; Hall v. Houghton, 
 37 Me. 411 ; Wolfe v. Hauver, 1 Gill 
 (Md.) 84; BroUey v. Lapham, 13 
 Gray (Mass.) 294; Whitney i. East- 
 ern R. R. Co., 9 Allen (Mass.) 364 ; 
 Olmstead v. Winsted Bank, 32 Conn. 
 278; Brown v. Wood, 19 Mo. 475; 
 Seavy v. Dearborn, 19 N. H. 351; 
 Swamscot Machine Co. c. Walker, 22 
 N. H. 457; Skellinger v. Howell, 3 
 Halst. (N. J.) 310; Lawrence u. 
 Barker, 5 Wend. (N. Y.) 301 ; Win- 
 ston V. Moseley, 2 Stew. (Ala.) 137 ; 
 Thompson v. Blanchard, 4 N. Y. .303 ; 
 Hunter v. Westell, 84 N. Y. 549; 
 Hunt V. Fish, 4 Barb. (N. Y.) 324; 
 
 Pickard v. Collins, 23 Id. 444 ; People 
 V. Skeehan, 49 Id. 217 ; Keutgen <■. 
 Parks, 2 Sandf. (N. Y.) 60; Parsons 
 V. Suydani, 3 E. D. Smith (N. Y.) 
 276 ; Bok v. Vincent, 12 Abb. (X. Y.) 
 Pr. 137 ; Bemis v. Kyle, 5 Abb. (N. 
 Y.) Pr. N. s. 232 ; Gibbs v. Hyler, 41 
 N. Y. Superior, 190; Hice v. Cox, 
 12 Ired. (X. C.) L. 315 ; Stockton v. 
 Demuth, 7 Watts (Pa.) 39; Parr ,. 
 Thompson, Cheves (S. C.) 37. 
 
 8 Sisson V. Conger, 1 Thouip. & C. 
 (N. Y.) 564. 
 
 * Sewell V. Gardner, 48 Md. 178 ; 
 Spencer v. White, 1 Ired. (N. C.) L. 
 236. See also Skipper v. Georgia, 5;) 
 Ga. 63 ; Piatt v. Thorn, 8 Bosw. (N. 
 Y.) 574 ; Bank of Kentucky v. Shier, 
 4 Rich. (S. C.) 233, which latter casj 
 seems to lean a little in the contrary 
 direction. 
 
 ' Per Savage, C. J., in Lawrence 
 V. Barker, 6 Wend. (N. Y.) 305; 
 Jackson d. Hopkins c. Leek, 12 Id. 
 105 ; De Lisle v. Priestman, 1 Browne 
 (Pa.) 176; s. c,, on error, Id. 183 n; 
 Cowden v. Reynolds, 12 S. & R. (Pa.) 
 281; Pec Livingston, J., in Steinbach 
 
356 
 
 CEEDIBILITY. 
 
 [chap. XIV. 
 
 quences would be most injurious to the administration of 
 justice, as well in criminal as in civil cases.-^ 
 
 But the contradiction of the first witness by the second 
 one has not necessarily the effect of repudiating the whole of 
 the former witness's testimony : it would be against all jus- 
 tice to require that the whole of a man's testimony should 
 be struck out, because a v/itness sets him right as to a single 
 fact.^ Strictly speaking, no part of his evidence is to be 
 struck out ; the whole must be for the consideration of the 
 jury, who may believe and adopt a part, or disbelieve and 
 reject the whole.^ Still even though the effect of such con- 
 tradiction be to indirectly throw the utmost discredit on 
 the witness, and convince the jury that he has designedly 
 deceived them, still the party will be at liberty to prove such 
 contrary facts. " There is no rule of law by which the truth 
 on such an occasion is to be shut out, and justice perverted."* 
 
 § 215. How far the Rule applies -where One Party calls the 
 Adverse Party. — Whether the application of the rule we are 
 
 i'. Columbian Ins. Co., 2 Cai. (N. Y.) 
 131 ; Thompson v. Blancliard, 4 N. Y. 
 311 ; Per Ruffin, J., in Crowell v. Kirk, 
 a Dev. (N. C). 357. The contrary 
 was held by an early ease in New 
 Jersey, on the ground that the con- 
 tradiction would be to discredit tlie 
 party's first witness, and thus violate 
 the rule that the party calling the wit- 
 ness shall not impeach him. Beak's 
 Ex'rs V. Birdsall, Coxe (N. J.) 12. 
 But that is now overruled or disre- 
 garded, and the courts there act 
 upon the English rule. Skellinger 
 0. Howell, 8 Halst. (N. J.) 310, See 
 also, apparently to the contrary, 
 Kapp 0. Le Blanc, 1 Dall. (U. S.) 
 63. 
 
 1 See, as to what facts are material 
 within this rule allowing contradic- 
 tion, Friedlander v. London Assur. 
 Co., 4 Barn. & Ad. 193; Perry v. 
 Massey, 1 Bail. (S. C.) 32 ; Alexan- 
 der V. Gibson, 2 Campb. 556. In the 
 case last cited the question was, 
 whether the defendant's servant, who 
 had been employed to sell a horse, 
 had warranted him sound, and the 
 servant swore, on being called by the 
 plaintiff, that he had not given any 
 
 warranty. Lord Ellenborough al- 
 lowed the plaintiff to call another wit- 
 ness, to prove that at the time of the 
 sale the servant had expressly war- 
 ranted its soundness. " There caii be 
 no rule* of law," said Lord Ellen- 
 borough, "by which the truth on such 
 an occasion is to be shut out, and 
 justice perverted." In this manner 
 a statement of facts by the former 
 witness may be disproved to any 
 extent, and even the whole of his 
 evidence may be discredited. 
 
 2 Bradley v. Ricardo, 8 Bing. 57. 
 
 8 The court is not bound to believe 
 or disbelieve all that a party's witness 
 says for or against him, but may re- 
 ject such portion of his testimony 
 against the party as shall appear 
 liable to objection. Per Livingston, 
 J., in Stokes o. Mowatt, 1 U. S. Law 
 Jour. 305, 325, 326. 
 
 * 2 Phil. Ev, *985. Where the evi- 
 dence shows that the witness was 
 mistaken, it does not affect the rest 
 of his testimony any further than as 
 it serves to show a defect of memory. 
 Hall V. Houghton, 37 Me. 411 ; Bren- 
 nan v. People, 15 111. 511. 
 
§ 215. J IMPEACHING one's OWN WITNESS. 367 
 
 now considering is at all affected, and if so, to what extent, 
 by the fact that a witness called by one party and sought to 
 be impeached or contradicted by him is the adverse party, 
 or one of them, is a question upon which the authorities are 
 not in strict accord. It is well settled, however, that such a 
 witness cannot be impeached, by evidence of character, by 
 the party calling him : he becomes such party's own witness 
 within the rule as respects the binding effect of testimony 
 elicted by him.^ He cannot insist that such witness's testi- 
 mony be ignored if it happen to disappoint him,^ or argue 
 from the contradictions in it, that it is false.^ Where the 
 purpose for which a party calls his adversary to testify is 
 not formal, or where he is not compelled by law to call him, 
 the court must hold the witness credible even upon cross- 
 examination, or on direct examination as a witness for the 
 other side.* So long as his answers are responsive to the 
 questions put to him on the direct examination, the party 
 calling him cannot be heard to contradict him ; but if he 
 shall depart from a direct and simple response, bj' stating 
 other or new matter not responsive to the questions, not 
 being introduced for such purpose, but availing himself of 
 such privilege as a witness to testify in his own behalf, his 
 adversary can be heard on such new matter.^ 
 
 Such a witness, it is held in one case, stands in a different 
 position from an ordinary witness : he is necessarily hostile 
 to the party calling him, who is not bound by what he testi- 
 fies. It may be that he cannot be directly impeached by the 
 party who called him, but he may be freely contradicted, 
 even though this may incidentally discredit liim.^ 
 
 Of course, the party may prove facts sworn to by such 
 witness to be otherwise, as he may in the case of any other 
 witness.'' So if, relying upon his testimony on a former 
 
 1 Hunt V. Coe, 15 Iowa, 197 ; Thorn ^ Hester v. Wallace, 6 Bush (Ky.) 
 V. Moore, 21 Id. 285 ; Paxton v. Boyce, 182. 
 
 1 Tex. 317. See also Nichols v. White, " Draro v. Fabel, 25 Ped. Rep. 116. 
 
 85 N. Y. 5.31 ; Holbrook v. Mix, 1 E. In this case a statute of Pennsylvania 
 
 D. Smith (N. Y.) 154 ; Drennen u. is referred to, which allows such a 
 
 Lindsey, 15 Ark. 359. witness to be examined by the party 
 
 2 Dravo v. Pabel (Pa.) 25 Fed. calling him, as if under cross-examina- 
 Eep. 116. tion. 
 
 3 Tarsney v. Turner, 2 Flipp. (U. S.) ' Paxton v. Boyce, 1 Tex. 317 ; 
 735. supra, § 214. 
 
 * Branch v. Levy, 46 Superior (N. 
 Y.) 428. 
 
358 CREDIBILITY. [CHAP. XIV. 
 
 trial, he is entrapped by, the witness, who changes his testi- 
 mony, he may contradict him.^ 
 
 § 216. Unfriendly or Hostile Witnesses. — Another well- 
 defined exception to the general rule that a party having 
 called a witness, thereby vouches for him as a person worthy 
 of credit, and must take him " for better or for worse," and 
 cannot afterwards, discredit him, is, where the witness turns 
 out to be an unfriendly, or, as it is generally termed, a "hos-. 
 tile " witness. In such an event the presiding judge has a 
 discretion to permit the party to pursue either or both of 
 two courses: (1) he may cross-examine the witness, though 
 called by himself, and put leading questions to him,^ and 
 (2) he may impeach or discredit his testimony to the same 
 extent and by the same means as he could do, had the wit- 
 ness been adduced as such by the adversary party: at all 
 events, so far as showing the making by him, out of court, 
 of statements inconsistent with those made upon the stand. 
 This concession to the 'partj is frequentlj' necessary as a 
 security against the contrivance of an artful witness, who 
 otherwise might recommend himself to a party by the 
 promise of favorable evidence (being really in the interest 
 of the opposite party), and afterwards by hostile evidence 
 ruin his cause. The objection that a party has no right to 
 put a witness into tlie box as a person of credit, and after- 
 wards call others to discredit him, proceeds upon the suppo- 
 sition that the party first acted on one principle, and after- 
 wards, being disappointed by the witness, turns round and 
 acts upon another — thus imputing to the party something 
 of double-dealing or dishonest practice. But it is evident 
 that this does not apply to the ease where a party, having 
 given credit to a witness, is deceived by him, and first dis- 
 covers the deceit at the trial.-* 
 
 In accordance with this principle, it has been held that 
 
 1 Cox V. Prater, 67 Ga. 588 ; see ness may be contradicted by proof of 
 
 supra, § 212. In Kansas, it is held inconsistent statements made out of 
 
 that one party introducing in evidence court, and this, without giving him 
 
 thedepositionof the other is not bound an opportunity of explanation. Bru- 
 
 by its statements. He may prove his baclser v. Taylor, 76 Pa. St. 83. 
 
 case by other evidence going to dis- ^ ggg infra, Cliap. XIV. 
 
 credit and contradict statements made ^ 2 Phil. Ev. *986. See also supra, 
 
 in the deposition. Wallach v. Wylie, §§ 212, 213, where tliis branch of the 
 
 28 Kan. 1-38. In Pennsylvania," by subject has already been partially 
 
 statute (Act of 1889, § 2) such a wit- discussed. 
 
§ 216.] IMPEACHING one's OWN WITNESS. 359 
 
 ia a criminal case, where the prosecutor calls a witness who 
 proves to be hostile, the prosecution may prove what he said 
 on a former occasion, not as evidence of the facts sought to 
 be proven, but to show that he has* made conflicting state- 
 ments, and thus affect his credibility .^ But it must be borne 
 in mind that a witness cannot be impeached or examined on 
 the assumption that he is unfriendly before there is any show- 
 ing to that effect or any evidence from him to warrant it.^ 
 
 ^ Commonwealth v. Morrow, 3 ^ People v. Lyons, 51 Mich. 215. 
 Brews. (Pa.) 402. 
 
CHAPTER XV. 
 
 CONPIEMING AND COREOBOEATING WITNESSES. 
 
 § 217. The Eight to corroborate a Witness. , 
 
 § 218. The Necessity of Corroboration, generally. 
 
 § 219. Where Witness is shown to have falsified. 
 
 § 220. To overcome Answer in Chancery. 
 
 § 221. Competency of Corroborating Evidence. 
 
 § 222. Its Sufficiency and Effect. 
 
 § 223. Sustaining a Witness by Proof of Character. 
 
 § 224. Showing Previous Consistent Statements. 
 
 § 225. Corroboration of Prosecuting Witnesses in Certain Cases. 
 
 § 217. The Right to corroborate a Witness. — A party has 
 the unquestioned right to introduce evidence in corrobora- 
 tion of a witness who has been impeached or contradicted, 
 and no exception lies to the admission of such evidence.^ 
 He may introduce as many witnesses as he deems necessary 
 to prove his side of the issue, and if his opponent brings in 
 contradictory witnesses, he may call others to corroborate 
 those first examined.^ And the rule is the same where the 
 witness sought to be corroborated was impeached on his own 
 cross-examination only, and not by extraneous evidence.^ 
 Where plaintiff impeaches defendant's witnesses by evidence 
 in. rebuttal, defendant may corroborate them after plaintiff 
 has rested.^ 
 
 Not only may an impeached witness be corroborated by 
 evidence extrinsic to his own, but he maybe confirmed by his 
 own testimony taken on re-examination. If, on cross-exam- 
 ination,, facts have been elicited which tend to impair his 
 credit, he may, on re-examination, be asked such questions 
 a^ tend to explain those facts.^ Thus, where, in a criminal 
 case, the defendant's witnesses were asked, on cross-examina- 
 
 1 Green v. Gould, 3 Allen (Mass.) * Wade v. Thayer, 40 Cal. 578. 
 465. 6 United States v. High wines, 8 
 
 2 Outlaw V. Hurdle, 1 Jones (N. C.) Blatchf . (U. S.) 475. Contra, Dick- 
 L. 150. son V. Sharretts, 7 La. Ann. 54. 
 
 8 Richmond v. Richmond, 10 Yerg. 
 (Tenn.) 343. 
 
§ 218.] COXFIKMING AND COKEOBOKATING. 361 
 
 tion, where they came from, — to which they answered thiit 
 they came from jail, — it was held error to refuse them the 
 privilege of stating upon what charge, and under what 
 circumstances they had been committed to jail.i So where, 
 for the purpose of contradicting a witness, his attention is 
 called, on cross-examination, to a communication sent by 
 him to a newspaper, he should be allowed to explain the 
 circumstances under which the communication was written.^ 
 And the rule is the same where impeachment is attempted 
 by the proof of verbal statements contradicting the witness' 
 testimony;^ but proof of a detached statement, made pre- 
 viously to the trial by the witness, will not authorize proof of 
 all that he said at the same time, but only of so much as can 
 be connected in some way with the statement proved.* 
 
 This right to confirm the witness on re-examination 
 extends to cases where the cross-examination is as to facts 
 not in themselves admissible in evidence ; ^ this, however, is 
 a departure from general rules of evidence.® 
 
 But a witness cannot be supported before he has been 
 attacked,'^ though it is always permissible to strengthen 
 a witness' testimony by connected incidents showing its con- 
 sistency and reasonableness.^ 
 
 § 218. The Necessity of Corroboration, generally. — Whether 
 it be necessary to corroborate an unimpeached and uncontra- 
 dicted witness, is a question which most frequently arises in 
 
 ^ State V. Ezell, 41 Tex. 35. S. P., ment, forming a part of a conversa- 
 
 McAflee v. State, 31 Ga. 411. tion, is given in eridence, ivliatever 
 
 2 Smith V. Weelcs, 54 Iowa, 411. was saifl by the same person in the 
 
 8 See infra, § 224; State v. George, same conversation, that would in any 
 
 8 Ired. (N. C.) L. 324. way qualify or explain tliat statement, 
 
 * The Queen's Case, 2 Brod. & B. is also admissible ; but detached and 
 
 297; Prince I'. Samo, 7 Ad. & E. 627 ; independent statements, in no way 
 
 overruling a broader doctrine laid down connected with the statement given in 
 
 iutheQueen'sCaseby LordTenterden. evidence, are not admissible, and tliat 
 
 5 Goodman v. Kennedy, 10 Neb. there is no difference in this respect 
 
 270 ; State v. Cardoza, 11 So. Car. 195. between statements made in convers.a- 
 
 ^ Mitchell V. Sellman, 5 Md. .376; tion by a party to the suit, and those 
 
 Shedden v. Patricia, 2 Swab. & Tr. made by a tliird party." 1 Phil. Ev. 
 
 170. Upon the point as to how much *416. 
 
 of a previous conversation, a part of ' Hamilton v. Conyers, 28 Ga. 276 ; 
 
 which has been gone into on cross- State v. Eorabacher, 19 Iowa, 154; 
 
 examination, may be elicited from the Bryant r. Tidgewell, 133 Mass. 86; 
 
 witness on the re-direct, Mr. Phillips Adams v. Greenwich Ins. Co., 70 N. Y. 
 
 says, "Upon a review, therefore, of 166. 
 
 the authorities, the correct rule seems ^ Bruton v. State, 21 Tex. 387. 
 
 to be as follows : That where a state- 
 
362 CREDIBILITY. [CHAP. XV. 
 
 dealing with the testimony of accomplices — the cases upon 
 that branch of the subject will be examined later on ^ — 
 other cases in which such corroboration is essential are adul- 
 tery, bastardy, divorce, perjury, seduction, rape, and treason 
 cases,^ and chancery cases, where a sworn answer is to be 
 overcome.^ There still remains, however, a class of cases 
 where the testimony of a single witness needs corroboration 
 by other testimony, or confirmation by circumstances in 
 evidence, even though such witness be unimpeached and 
 uncontradicted.* Thus the testimony of a too willing wit- 
 ness, as to his " understanding " of a conversation between 
 the parties, if uncorroborated, has been held entitled to no 
 weight ; ^ the testimony of a single witness has been deemed 
 overridden by written assignments on a note and mortgage ; ^ 
 and, the question being whether certain real estate passed 
 under a deed from a firm " of all and every parcel of real 
 estate heretofore acquired, or now held by them," the testi- 
 mony of a single witness, given after a lapse of twelve years, 
 that one of the partners had said that he received the land in 
 payment of a debt due the firm, was held to be insufficient 
 proof to establish such admission.'' 
 
 In all cases where the testimony of one party or his wit- 
 nesses is explicitly contradicted by that of the other party 
 and his witnesses, the party holding the affirmative of the 
 issue must be corroborated in some manner, or fail.^ 
 
 § 219. Where Witness is shovirn to have falsified. — The 
 general effect of the maxim, '■'■falsus in uno falsus in omni- 
 
 1 See infra, Chap. XVI. establish a contract, or prove the pay- 
 
 2 See infra, § 225. nient or extinguishment of an item of 
 ^ See infra, § 220. account, exceeding $500 in amount, 
 * See supra, § 195. under the laws in force in Louisiana, 
 5 Powell V. Swan, 5 Dana (Ky.) 1. see Sieran v. Keenan, 14 La. Ann. 705 ; 
 « Mann v. Cross, 9 Iowa, 327. Jones v. Fleming, 15 Id. 522 ; Collins 
 ~' Benedict v. Horner, 13 Wis. 256. v. McElroy, 15 Id. G39 ; St. Romes v. 
 8 Shearman v. Hart, 14 Abb. (N. Y.) New Orleans, 18 Id. 210 ; Brady v. 
 
 Pr. 358. Within this principle the Mc Williams, 19 Id. 433; Goldsmith 
 
 testimony of a state's witness whose v. Friedlander, 20 Id. 119 ; Eield v. 
 
 credit has been impeached, must be Harrison, Id. 411. 
 corroborated by proof of a fact tend- A usage of business may be estab- 
 
 ing to show guilt, to justify a convic- lished by the testimony of a single 
 
 tion. Martin u. State, 28 Ala. 71. witness. Robinson w. United States, 13 
 
 But see to the contrary, Riley v. But- Wall. (U. S.) 363 ; Jones v. Hoey, 128 
 
 ler, 36 Ind. 51. Mass. 585; Bissell v. Campbell, 54 N. 
 
 As to the sufficiency of the uncor- Y. 353; Adams v. Pittsburgh Ins. Co., 
 
 roLorated evidence of one witness, to 95 Pa. St. 348. 
 
§ 220.] coxriRMixG and corroboeating. 363 
 
 5ms," upon the credibility of witnesses who testify falsely in 
 part, has been heretofore considered ; ^ and we found that 
 it is within the province of the jury to believe such portions, 
 if any, of such a witness' testimony as they see fit. It was 
 early held that where the testimony considered false by the 
 jury was on an immaterial point, it was competent for them 
 to give their verdict upon his testimony-in-chief upon other 
 points, if corrohorated!^ The true rule for the adoption of 
 juries undoubtedly is, that where a witness knowingly and 
 wilfully swears falsely in a material matter, his testimony 
 should be rejected entirely, unless corroborated by the facts 
 and circumstances of the case, or other credible evidence,^ 
 and the mere fact that his evidence is corroborated in some 
 other immaterial respects will not restore the credibility of 
 such a witness.* 
 
 § 220. To overcome Answer in Chancery. — It is a familiar 
 rule of chancery pleading and practice, that the explicit 
 denials in the sworn answer of a defendant, to the alle- 
 gations of a bill so framed as to compel an answer on 
 oath, cannot be so overcome by the uncorroborated evidence 
 of a single witness testifying in support of the bill, as to 
 afford a sufficient basis for a decree in favor of the com- 
 plainant.5 The civil law rule formerly followed by courts 
 of equity, and still in force in Louisiana, required the oath 
 of two witnesses, or, at the least, the testimony of one wit- 
 ness, strongly corroborated by circumstantial or written evi- 
 dence, to overcome the answer.^ The modern rule of courts 
 following the principles of the common law is, that the de- 
 fendant may claim for his sworn answer a credit equal to 
 that of any one witness, in all cases where his answer is 
 "positively, clearly, and precisely" responsive to any matter 
 stated in the bill, as to which he is called upon to answer ; 
 for by so calling upon him the complainant is held to admit 
 the answer to be evidence.^ But the evidence of an addi- 
 tional witness, or even the evidence of circumstances alone, 
 
 1 Supra, § 192. * Smith v. State, 23 Ga. 297. 
 
 2 Turner v. Foxall, 2 Craneh, C. C. M Greenl. Ev. § 260. 
 
 324. S. P., in later cases. Meixell f. ^ Hynson u. Texada, 19 La. Ann. 
 
 "Williamson, 35 111. 529; Brett i'. Cat- 470. 
 
 lin, 47 Barb. (N. Y.) 404. '' Greeley, Ev. p. 4 ; Cooth v. Jack- 
 
 5 Pierce r. State, 53 Ga. 365 ; Day son, 6 Ves. 40. 
 u. Crawford, 13 Id. 508. 
 
3G4 CUEDIBILITY. [CHAP. XV. 
 
 may be sufficient to turn the scale in favor of the com- 
 plainant.i 
 
 § 221. Competency of Corroborating Evidence. — In gen- 
 eral, a corroboration, to be of any avail, should be as to 
 some matter material to the issue. ^ Thus, where a witness 
 has been shown to be infamous, the confirmation of his tes- 
 timony should be as to such parts of his narrative as may 
 reasonably satisfy the jury of its truth; not restricted to 
 any particular points, or extended to facts generally known.^ 
 Oi'dinarily, the truth of a witness' testimony as to one fact 
 or set of facts, cannot be demonstrated by proving the exist- 
 ence of another and distinct fact or set of facts. Thus, the 
 fact that a debtor had the means of paying a debt, is not 
 admissible as evidence tending to corroborate his testimony 
 that he did pay it ; * and a witness denying that he stated a 
 fact as another witness swears he did, and claiming to have 
 stated a different fact, evidence that the fact existed, which 
 he has testified that he stated, is inadmissible to corroborate 
 him.^ 
 
 But this rule is not an inflexible one; accordingly, where 
 the date of a transaction is in issue, dates' of other transac- 
 tions may be gone into to enable witnesses to fix the date in 
 dispute.^ So, also, in a real action, a deed for other land 
 than that in controversy may be read in evidence to corrobo- 
 rate statements of witnesses.'' 
 
 1 Pember v. Mathers, 1 Bro. Ch. 52. 227 ; Goodhand v. Benton, 6 Gill & J. 
 See also-Abbott v. Case, 11 C. E. Gr. (Md.) 481. 
 
 (N.J.) 187; Morris ;;. White, 9 Stew. ' Buie v. Carver, 75 N. C. 559. See 
 (N. J.) 324 ; Vigel v. Hopp, 104 U. S. also Richardson t. Stewart, 4 Binn. 
 441; Campbell v. Patterson, 95 Pa. (Pa.) 198; Boston &c. R. R. v. i^Jana, 
 St. 447; Jones v. Abraham, 75 Va. 1 Gray (Muss.) 83. 
 4G5. In New York the rule no longer But a witness testifying to a con- 
 obtains. Stilwell V. Carpenter, 02 fession by tlie accused, cannot be cor- 
 N. Y. 639. See also 3 Grcenl. Kv. § roborated by proving the commission 
 289 and notes, where the conclusive- by the accused of another offence of 
 ness of an answer in chancery is fur- the same kind as that for which he is 
 ther discussed. on trial. People v. Schweitzer, 23 
 
 2 Praser v. People, 54 Barb. (N. Y.) Mich. 301. In Ashley v. Wolcott (11 
 306. ■ Cush. (Mass.) 192), a witness, testify- 
 
 '^ United States v. Blebusch, 1 ing to the existence of a certain 
 
 McCrary(U. S.) 42. watercourse, stated that many years 
 
 * Atwood V. Scott, 99 Mass. 177. previous, as he was putting in a watcr- 
 
 5 Edgerton v. Wolf, 6 Gray (Mass.) wheel, the plaintiff's father struck 
 
 453. Iiini, and he still bore the marks on 
 
 ° Harris v. Rosenberg, 43 Conn, his arm. Being asked by the party 
 
§ 221. J * confirmi>;g a^'d corroboratis-g. 
 
 365 
 
 Again, the testimony of a witness who has been contra- 
 dicted as to an alleged fact cannot be corroborated by show- 
 ing that he related the same fact in the same way before ; ^ 
 or by a mere cumulation of evidence on an immaterial point 
 to which he has testified.^ 
 
 Where a witness is charged with bias in favor of the party 
 calling him, such party may corroborate the witness by show- 
 ing that he (the party) and the witness are not on friendly 
 terms.^ If a witness in-a criminal case is cross-examined on 
 the theory that he was in a conspiracy to set the prosecution 
 on foot, he may be sustained by showing that another person, 
 to whom the facts had become professionally known, wrote 
 to the public authorities, and was the cause of the prosecu- 
 tion being instituted.* So where the great delay in institut- 
 ing a criminal prosecution tends to excite suspicion as to the 
 truth of the charge, and to lead to an impression unfavorable 
 to the principal witness, the prosecutor may prove any cir- 
 cumstances calculated to remove such presumption.^ And 
 in assumpsit for work done, where a witness had testified to 
 statements of the parties that the work could be done for less 
 than the amount claimed, and plaintiff introduced evidence 
 to discredit him, it was proper for the defendant, for the 
 purpose of sustaining his witness, to introduce testimony to 
 show that the work might have been done for the amou.nt 
 named by the witness.^ So, also, letters from the adverse 
 party, showing his high esteem of the impeached witness, 
 are admissible to sustain him;'' and so are letters containing 
 admissions tending to confirm the witness' testimony.^ The 
 rule is, also, that papers not evidence per se, but proved to 
 have been true statements of facts at the time they were 
 made, are admissible in connection with the testimony of the 
 witness who made them.^ Thus, letters written by a witness 
 
 calling him to show the marks to the * Lohman v. People, 1 N. Y. (1 
 
 jury, the court refused to allow it, and Comst.) 379. 
 
 this ruling was held correct. ^ People v. Lohman, 2 Barb. (N. Y.) 
 
 1 Hodges V. Bales, 1 N. East. Rep. 216. 
 
 692. See also Second Ward Bank v. " Clapp v. Wilson, 5 Den. (N. Y.) 
 
 Shakman, 30 Wis. 333. 285. 
 
 2 McClintock v. Whittemore, 16 ' Stacy v. Graham, 14 N. Y. 492. 
 N. H. 268 ; Wiggin *. Plumer, 31 N. H. « Soules r. Burton, 36 Vt. 652. 
 251. ^ Insurance Co. c. Weides, 14 Wall. 
 
 3 Clapp u. Wilson, 5 Den. (N. Y.) (U. S.) 375. 
 285. 
 
CGG CIIEDIBILITY. [C&AP. XV. 
 
 arc admissible as auxiliary to his testimouj', and as memo- 
 randa made by iiim, if he testifies that though he had for- 
 gotten the facts therein stated, the statements were undoubt- 
 edly true at the time they were written. ^ 
 
 § 222. Its Sufficiency and Effect. — The sufficiency of the 
 confirmatory proof must depend in a great measure upon 
 the facts and circumstances of each particular case, and is, 
 in all cases, peculiarly a question far the jury, and for them 
 only to pass upon. Much depends on the nature as well 
 as the extent of the corroboration. Credit is restored to a 
 much greater extent wlien the witness is corroborated as to 
 the main fact than when corroboration is confined to imma- 
 terial facts.^ Still corroboration is necessary as to those 
 points of the case which are relied upon, and it is not suffi- 
 cient that it goes, generally, to the main question at issue.* 
 
 § 223. Sustaining a Witness by Proof of Character. — Where 
 the general character of a witness, or his reputation for truth 
 and veracity, is impeached, the party calling him may call 
 other witnesses who know him to prove that his reputation 
 is good,* and that he is entitled to full credit on his oath.^ 
 So, also, on a criminal trial, if the character of a state's wit- 
 ness is impeached, the state may show that the facts to 
 which he testified are true.^ If the accused offer evidence 
 that a state's witness was suborned, and paid for his testi- 
 mony, the state may show, in rebuttal, the good character of 
 the witness for truth and veracity. Even an unsuccessful 
 attempt to impeach the character of a witness warrants the 
 introduction of evidence in support of his character.^ Where 
 
 ^ Lewis V. Ingersoll, 3 Abb. (N. Y.) State v. Nelson, 58 Iowa, 208 ; Pren- 
 
 App. Dec. 55; Driggs t. Smith, 45 tiss v. Roberts, 49 Me. 127; Sloan i-. 
 
 How. (N. Y.) Pr. 447. Otiierwise Edwards, 61 Md. 89; Hamilton r. 
 
 where the witness testifies clearly and People, 29 Mich. 173, 184; People t. 
 
 distinctly to the facts contained in the Rector, 19 Wend. (N. Y.) 569 ; Stape 
 
 letters. Driggs v. Smith, 45 How. v. People, 85 N. Y. 390; George i: 
 
 (N. Y.) Pr. 447. In Fain v. Edwards Pilcher, 28 Gratt. (Va.) 299. 
 (Busb. (N. C.) L. 64) testimony by a ^ M'Cutohen v. M'Cutchen, 9 Port. 
 
 witness that plaintiff had agreed to (Ala.) 650, and many of the 'cases 
 
 give him credit for thirty dollars was cited supra. 
 
 impeached, and the books of the plain- ^ John v. State, 16 Ga. 200. Contra, 
 
 tiff showing that such credit was ac- State i\ Parish, 22 Iowa, 281. 
 tually given him were admitted to ' Com. u. Ingraham, 7 Gray (Mass.) 
 
 corroborate the witness. 46, where the impeaching witness, be- 
 
 2 Haynes v. State, 17 Ga. 465. ing asked what was the character of 
 
 ^ Troxdale v. State, 9 Humph, another witness, unexpectedly an- 
 
 (Tenn.) 411. swered that it was good. 
 
 1 Clackner ,,. State, 33 Ind. 412 ; 
 
§ 223.] 
 
 CONFIRJIING AND (fOIlEOBOEATlNG. 
 
 867 
 
 the character of an attesting witness to a deed or will is 
 attacked by another who survives him, the character of the 
 deceased witness may be supported in like manner.^ 
 
 This method of sustaining a witness may properly be re- 
 sorted to where the impeachment consists in the proof of a 
 charge of crime or moral turpitude, previously made against 
 the witness,^ or his conviction of crime.^ 
 
 Where the witness is impeached by proof of contradictory 
 or inconsistent statements shown to have been made by him 
 out of court,* the authorities are divided upon the propriety 
 of admitting proof of good character for truth and veracity 
 to sustain him. Some courts consider such an impeachment 
 an attack upon the witness' general character for truth and 
 veracity, and permit him to be corroborated in this manner,'' 
 while others of equal respectability decline to admit evidence 
 of character in such cases." 
 
 But until the character of a witness has been attacked or 
 impeached by the opposite part}-, his good character cannot 
 be shown for the purpose of supporting him, — upon this 
 point the decisions are, for the most part, in harmony," — 
 
 1 Doe d. Walker v. Stevenson, 3 
 Esp. 284 ; Doe d. Stevenson c. Walker, 
 4 Esp. 50; Provis v. Reed, 5 Bing. 
 4.35 ; Black v. Ellis, Riley (S. C.) 73. 
 
 2 Webb r. State, 29 Ohio St. 351 ; 
 Tedens v. Schumers,»14 111. App. GOT; 
 Mosley v. Vermont &c. Ins. Co., 55 
 Vt. 142; Carter v. People, 2 Hill 
 (N. Y.) 317. But it seems tliat an 
 admission by a witness on his cross- 
 examination that he had been prose- 
 cuted, but not tried, for perjury, does 
 not authorize the party calling him, 
 to give evidence of his general good 
 character. People v. Gay, 1 Park. 
 (N. Y.) Cr. 308; 7 N. Y. .378. S. P., 
 Harrington v. Lincoln, 4 Gray (Mass.) 
 563; Hannah v. McKellip, 49 Barb. 
 (N. Y.) 342. Theise decisions seem to 
 go upon the ground that good charac- 
 ter cannot rebut proof of particular 
 facts against the witness elicited from 
 his own statements. 
 
 ^ People V. Amaracns, 50 Cal. 233 ; 
 Gertz i-. FitchburgR. R. Co., 137 Mass. 
 77; s. c, 19 Cent. L. J. 134; Webb v. 
 State, 29 Ohio St. 851. 
 
 * See sitpra, § 203 et seq. 
 
 5 Hadjo u. Gooden, 13 Ala. 718 ; 
 Lewis V. State, 35 Ala. 380 ; Haley v. 
 State, 63 Ala. 83; Clark v. Bond, 29 
 Ind. 555; Harris ;;. State, 30 Ind. 131 ; 
 Stratton i: State, 45 Ind. 468; Isler r. 
 Dewey, 71 N. C. 14; Glaze v. Wliitley, 
 5 Oreg. 104; Burrell v. State, 18 Te.\. 
 
 '713; Paine c. Tilden, 20 Vt. 554; 
 Sweet V. Sherman, Id. 23. 
 
 6 Stamper c. Griffin, 12 Ga. 450; 
 A^ance v. Vance, 2 Mete. (Ky.) 581 ; 
 Russell V. CofHn, 8 Pick. (Mass.) 143; 
 Brown v. Mooers, 6 Gray (Mass.) 451 ; 
 Erost V. McCargar, 29 Barb. (N. Y.) 
 617 ; Webb v. State, 29 Ohio St. .351 ; 
 Wcrtz !•. May, 21 Pa. St. 274; Chap- 
 man V. Cooley, 12 Rich. (S. C.) 654. 
 See also Paxton -v. Dye, 26 Ind. 393. 
 
 ' Rogers v. Moore, 10 Conn. 13 ; 
 Johnson r. State, 21 Ind. 329 ; Brann 
 V. Campbell, 86 Ind. 516; State i'. 
 Cooper, 71 Mo. 4.36 ; Starks v. People, 
 5 Den. (N. Y.) 108 ; Braddee v. Brown- 
 field, 9 Watts (Pa.) 124; Wertz v. 
 May, 21 Pa. St. 274. But see to the 
 contrary, Newton u. .Jackson, 23 Ala. 
 
868 CEEDIBILITY. [CHAP. XV. 
 
 and the fact that the testimony of other witnesses contra- 
 dicts his own does not constitute sucli an attack or impeach- 
 ment of the witness as to render such proof admissible, ^ even 
 though his accuracy as to some particular facts has been dis- 
 credited ; ^ otherwise, it seems, where the contradiction is on 
 a material point, and is such as to fairly put the credit of 
 the witness in issue.^ 
 
 The number of witnesses who may be called to sustain the 
 character of an impeached witness is a matter resting in the 
 sound discretion of the court.* Ordinarily they must swear 
 that they know his general character for truth and veracity, 
 or they cannot be heard ;^ but if they claim to have known 
 the impeached witness personally for a considerable period 
 of time, negative testimony that they never heard anything 
 said about his character for truth, is competent to show good 
 reputation.^ If the sustaining witness says he has heard the 
 character of the impeached witness spoken against, the party 
 calling him may ask him who he heard so speak,''' or whether 
 the unfavorable remarks were in relation to particular traits, 
 such as drinking and horse-trading.** 
 
 § 224. Showing Previous Consistent Statements. — Whether, 
 after the impeachment of a witness by proof that, prior to the 
 time of giving his testimony-in-chief, he made statements out 
 of court inconsistent with or contradictory to that testimony, 
 the party calling him may produce other witnesses to prove 
 that he affirmed the same thing before the trial which he has 
 testified to, i.e., that, instead of having involved himself in 
 
 335 ; Merriam v. Hartford &o. E. R. ^ Cook v. Hunt, 24 111. 535 ; Lyman 
 
 Co., 20 Conn. 354. v. Philadelphia, 56 Pa. St. 488. Con- 
 
 1 Owens V. White, 28 Ala. 413 ; ira, if they swear they intimately know 
 
 State u. Ward, 49 Conn. 429 ; Pruitt the impeached witness himself, and 
 
 V. Cox, 21 Ind. 15; Brown i-. Camp- would believe him under oath, although 
 
 hell, 86 Ind. 516 ; Heywood v. Reed, they disclaim knowledge of his repu- 
 
 4 Gray (Mass.) 574 ; Starks v. People, tation for truth. Taylor v. Smith, 16 
 
 5 Den. (N. Y.) 106. Ga. 7 ; People v. Davis, 21 Wend. 
 
 ••2 Leonori v. Bishop, 4 Duer (N. Y.) (N. Y.) 309. See also Artope v. Good- 
 
 420. all, 53 Ga. 318. 
 
 3 Davis V. State, 38 Md. 15, 50. In ^ State v. Nelaon, 58 Iowa, 208 ; 
 this case both the contradictory wit- State v. Lee, 22 Minn. 407 ; Morss v. 
 nesses were supported by proof of Palmer, 15 Pa. St. 51 ; Davis v. Franke, 
 good character. See also George v. 33 Gratt. (Va.) 413. 
 
 Pitcher, 28 Gratt. (Va.) 299. ' Bakeman c. Rose, 18 Wend. 
 
 4 Bunnell u. Butler, 23 Conn. 65; (N. Y.) 146. 
 
 Co.x V. Pruitt, 25 Ind. 90 ; Bissell t . « Stape v. People, 85 N. Y. 390 ; 
 
 Cornell, 24 Wend. (N. Y.) 354. reverswrj s. c, 21 Hun, 399. 
 
§ 224.] 
 
 CONFIEJIING AND COEROBOEATING. 
 
 3G9 
 
 contradiction, he is consistent with himself, is another topic, 
 upon which codification would settle much contradiction in 
 case-law. Chief Baron Gilbert took the affirmative Yiew,i 
 while Buller, J., held that such evidence is clearly inadmis- 
 sible in chief, and of doubtful admissibility in reply .^ 
 
 Argument would seem to be unnecessary to sustain the 
 proposition that an unsworn statement is without value as 
 confirmation of a swqrn one. Confirmation should take the 
 reverse course, i.e., the unsworn should be confirmed by 
 the sworn statement.^ In America, the weight of authority 
 rejects the general proposition that proof of former consistent 
 statements is admissible, in such cases, to support the wit- 
 
 1 Gib. Ev. 135; Hawk. P. C. b. 2, 
 c. 46, § 48. And see Lutterel v. Rey- 
 •nell, 1 Mod. 282 ; and Sir J. Friend's 
 Case, 13 How. St. Tr. 32. See also 
 Harrison's Case, 12 Id. 861, in which 
 case this confirmatory evidence was 
 ottered in chief, — which would not 
 now be allowed. Smith u. Stickney, 
 17 Barb. 489. 
 
 2 B. N. P. 294. And see R. v. Par- 
 ker, 3 Doug. 242, 244, where Buller, J., 
 says : " It is now settled that what a 
 witness said not upon oath would not 
 be admitted to confirm what he said 
 upon oath." See also Smith v. Stick- 
 ney, 17 Barb. (N. Y.) 489; March v. 
 Harrall, 1 Jones (N. C.) L. 329 ; Robb 
 c. Haekley, 23 Wend. (N. Y.) 50. In 
 the Berkeley Peerage Case (Ms. 5th 
 .Tune, 1811) one of the peers inquired 
 of a witness, who had been cross-ex- 
 amined and re-examined, as to state- 
 ments made by Lady Berkeley on a 
 former occasion, respecting her sup- 
 posed marriage. The Solicitor-General 
 suggested to the committee, whether 
 this was the regular course of pro- 
 ceeding, and stated what he conceived 
 to be the general rule upon the sub- 
 ject. The admissibility of the former 
 statements was then much discussed. 
 After the arguments of counsel on 
 both sides. Lord Redesdale said he 
 had always understood that, for the 
 purpose of impugning the testimony 
 of a witness, his declaration at another 
 time might be inquired into, but not 
 for the purpose of confirming his evi- 
 
 dence. And the Lord Chancellor ex- 
 pressed his decided opinion that this 
 was the true rule to be observed by 
 the counsel in the cause ; but consid- 
 ering the house as, in some degree, 
 standing both in the situation of the 
 counsel for the claimant and of the 
 counsel against the claimant, he was 
 of opinion that the question might be 
 properly asked by the house, though 
 it could not be asked by the counsel 
 on one side ; but with respect to the 
 answer to the question, it might be 
 the question of future consideration, 
 whether it ought to stand upon the 
 minutes as evidence. The question 
 respecting the former representations 
 of Lady Berkeley was, therefore, re- 
 peated by one of the Lords, and the 
 answer entered among the minutes, 
 subject to future revision. 
 
 3 It is the oath that confirms, and 
 the bare assertion that requires con- 
 firmation. The probability is, that in 
 almost every case tlie witness who 
 swears to certain facts at the trial has 
 been heard to assert the same facts 
 before the trial ; and it is not so much 
 in support of his character, that he 
 has given at other times the same ac- 
 count, as it would be to his discredit, 
 that he should ever have made one 
 different. The imputation on liis ve- 
 racity results from the fact of his 
 having contradicted himself, and this 
 is not in the least controverted or ex- 
 plained by the evidence in question. 
 2 Phil. Ev. *074. 
 
370 
 
 CEEDIBILITY. 
 
 [chap. XV. 
 
 ness,^ except where his testimony is charged to have been 
 given under the influence of some improper or interested 
 motive, or to be a recent fabrication, i.e., where the counsel 
 on the other side impute to the witness a design to mis- 
 represent from some motive of interest or relationship — in 
 which case, in order to repel such an imputation, it is proper 
 to show that the witness made a similar statement at a time 
 when the supposed motive did not exist, and the effect of 
 such statement could not be foreseen, or when motives of 
 interest would have prompted him to make a different state- 
 ment of the faets.^ Still, there are numerous apparently 
 well-considered cases in this country which hold that evi- 
 dence of prior consistent statements of a witness are com- 
 petent after, but not before, an attempt to impeach him.^ 
 
 But in no event, except in prosecutions for rape or seduc- 
 tion, can a witness be allowed, for the purpose of strengthen- 
 ing his testimony, to state, on his examination-in-chief, that 
 he had previously communicated to others the same facts to 
 which he has testified, or other particular facts.* 
 
 1 Conrad v. Griffey, 11 How. (U. S.) 
 480 ; United States v. Holmes, 1 Cliit. 
 (U. S.) 08; Smitli v. Morgan, 38 Me. 
 468 ; Riney v. Vanlandingham, 9 Mo. 
 81G ; Kobb v. Hackley, 23 Wend. 
 (N. Y.) 50 ; Dudley v. Belles, 24 Id. 
 465 ; Nichols v. Stewart, 20 Ala. 358 ; 
 People V. Finnegan, 1 Park. (N. Y.) 
 Or. 147 ; Munson v. Hastings, 12 Vt. 
 348 ; Butler v. Trusloe, 55 Barb. (N.Y.) 
 293; Dufresne v. Weise, 46 "Wis. 290; 
 Smith V. Morgan, 38 Me. 468 ; Ellicott 
 V. Pearl, 1 McLean (U. S.) 206 ; State 
 V. Vincent, 24 Iowa, 570; Ware u. 
 Ware, 8 Me. 42; Commonwealth v. 
 Jenkins, 10 Gray (Mass.) 485 ; Smith 
 V. Stickney, 17 Barb. (N. Y.) 489 ; 
 Queener v. Morrow, 1 Coldw. (Tenn.) 
 123; Powers v. Cary, 64 Me. 10; 
 Reed- v. Spaulding, 42 N. H. 114. 
 
 2 People V. Doyll, 48 Cal. 85; 
 French r. Merrill, 6 N. H. 465 ; Reed 
 !'. Spaulding, 42 N. H. 114 ; State v. 
 Thomas, 3 Strobh. (S. C.) 269; Com. 
 r. Jenkins, 10 Gray (Mass.) 485; State 
 r. Hendricks, 32 Kan, 559; Herrick v. 
 Smith, 13 Hun (N.Y.) 446; Hester 
 V. Com., 85 Pa. St. 1.39 ; Stolp v. Blair, 
 08 III. 541 ; Stewart v. People, 23 
 
 Mich. 63 ; Hotchkiss v. Germania Ins. 
 Co., 5 Hun (N. Y.) 91; Hayes u. 
 Cheatham, 6 Lea (Tenn.) 1. 
 
 8 State I'. Grant, 79 Mo. 113; Uni- 
 ted States V. Neousen, 1 Mack. (U. S.) 
 152 ; The Pacific, Newb. Adm. 8 ; 
 Haley v. State, 63 Ala. 83 ; Henderson 
 V. State, 70 Ala. 29; Perkins v. State, 
 4 Ind. 222; Brookbank v. State, 55 
 Ind. 169 ; Dodd v. Moore, 92 Ind. 397 ; 
 State V. Petty, 21 Kan. 54 ; Cooke !■. 
 Curtis, 6 Har. & J. (Md.) 93 ; Jack- 
 son i: Etz, 5 Cow. (N. Y.) 314 ; Peo- 
 ple V. Recter, 19 Wend. (N. Y.) 569 ; 
 Henderson i. Jones, 10 S. & R. (Pa.) 
 322 ; Bailey v. State, 9 Tex. App. 98 ; 
 State V. Dennin, 32 Vt. 158 ; Coffin v. 
 Anderson, 4 Blackf. (Ind.) 395 ; Beau- 
 champ i'. State, 6 Id. 300 ; Dailey ;■. 
 State, 28 Ind. 285 ; Johnson v. Patter- 
 son, 2 Hawks (N. C.) 183 ; March v. 
 Harrell, 1 Jones (N. C.) L. 329 ; Lyles 
 c. Lyles, 1 Hill (S. C.) Ch. 76 ; Dos- 
 sett V. Miller, 3 Sneed (Tenn.) 72. 
 Compare Robertson v. Caw, 3 Barb. 
 (N. Y.) 410 ; Turney v. State, 9 Tex. 
 App. 192; Holbert v. State, Id. 219. 
 
 * Deshon v. Merchants' Ins. Co., 11 
 Mete. (Mass.) 199. 
 
§ 225.] CONFIKMING AND COEKOBOEATING. 871 
 
 Thus, on a trial for larceny, the account of the offence 
 given by the prosecuting witness cannot be confirmed by 
 proof that, immediately after its alleged occurrence, he 
 reported the circumstances to other, persons.^ 
 . Stated in other words, the rule is, that a party cannot 
 support his positive testimony of facts stated upon his own 
 knowledge, by testifying, himself, to other consistent or cor- 
 roborative facts that are immaterial in themselves, and which, 
 like the facts sought to be corroborated, must rest entirely 
 upon his own oath.^ 
 
 But it has been held that, in defining the terms of a writ- 
 ten contract, a witness may state, as one of the reasons why 
 he is confident that his recollection is correct, that he stated 
 the terms of the contract in the same way, to a third person, 
 shortly after the transaction ; ^ and that where a witness has 
 expressed an admissible opinion, he may state in corrobora- 
 tion that he previously gave the same opinion to another ; 
 especially where it is elicited on cross-examination.* 
 
 § 225. Corroboration of Prosecuting Witnesses in Certain 
 Cases. — (1) Adultery and Seduction. In prosecutions or 
 civil actions based upon either of these wrongs or crimes, 
 where the defendant has endeavored to impeach the char- 
 acter of the wife or daughter, by general evidence, upon 
 cross-examination, or by calling witnesses, general evidence 
 of good character is admissible in reply .^ Even where the 
 female involved is not in any way impeached, her evidence 
 must generally be corroborated to sustain the prosecution,^ 
 and if insufficiently confirmed, a conviction will be set aside.'^ 
 S<^ also, the very nature of such a prosecution or civil action 
 
 1 Haynes v. Commonwealth, 28 ' Merritt v. State, supra. The stat- 
 Gratt. (Va.) 942. For exceptions to ute does not require direct and positive 
 this rule, see infra, § 22-5. corrohorative evidence, but simply 
 
 2 Anderson v. Russell, 34 Mich. 109. such facts and circumstances as fairly 
 2 Scruggs V. Gibson, 40 Ga. 511. tend to support the evidence of the 
 * Godfrey v. Mayberry, 84 N. C. prosecutrix and shall satisfy the jury 
 
 255. that she is entitled to credit. When 
 
 ^ Banfleld v. Massey, 1 Campb. there is some other evidence fairly 
 
 460 ; Dodd v. Norris, 3 Id. 519. But tending to support lier testimony upon 
 
 only when her character is attacked, all the facts essential to constitute 
 
 Pratt V. Andrews, 4 N. Y. 493. Aiid the offence, it is for the jury to say 
 
 see King v. Francis, 3 Esp. 116. whether she is sufficiently corrobo- 
 
 ^ Merritt v. State, 1.0 Tex. App. rated to warrant a conviction. State 
 
 402; s. c, 12 Id. 203; Armstrong v. v. Brinkhaus, 25 N. W. Eep. 642. 
 People, 70 IS. Y. 38. 
 
372 CKEDUBILITY. [CHAP. XV. 
 
 being an attack upon the moral character of the defendant, 
 he may give evidence in suppjort of his good character by 
 ■way of defence, even where he has not been impeaclied.^ 
 Whether the plaintiff can rebut the proof of particular in- 
 stances of misconduct on the part of the wife or daughter, 
 by proof of general good character, is doubtful, and the weight 
 of authority seems to forbid such proof.^ 
 
 (2) Bastardy. In England, no order against the putative 
 father can be made, unless the evidence of the mother be 
 corroborated in some material particular,^ but in this coun- 
 try the common-law rule is still in force in most jurisdictions, 
 and no corj:oboration is required ; * the proceeding not being 
 considered a criminal one, only a preponderance of evidence 
 is deemed necessary.^ But where the relatrix is impeached, 
 e.g., by proof that she has made statements in reference to 
 the paternity of the child inconsistent with her testimony 
 iipon the stand, witnesses may be called to sustain her gen- 
 eral good character for truth ;^ and in such cases the cor- 
 roboration required is not such as must be competent to 
 sustain the charge without and independent of her evidenced 
 But no corroboration should be allowed until some sort of 
 attack has been made upon the credit of the witness.^ 
 
 (3) Breach of promise. The same rules apply here — cor- 
 roboration is admissible after but not before impeachment, 
 but not absolutely essential to a recovery. The jury are the 
 exclusive judges of complainant's credibility.® Thus if de- 
 fendant attempts to prove improper and lewd conduct on the 
 
 1 Cox V. Pruitt, 25 Ind. 90. « State v. Nichols, 29 Minn. 357 ; 
 
 2 See cases already cited ; also Parr State v. McGlothlen, 56 Iowa, 545. 
 
 r. Hicks, Bull, N. P. 296; s. c.,4 Esp. ^ State v. Nichols, supra; State v. 
 
 51; Bate v. Hill, 1 Car. & P. 100; Romaine, 3 Iowa Transc. No. 1, p.46; 
 
 Shattuck V. Hammond, 46 Vt. 466 ; Semon v. People, 42 Mich. 141 ; State 
 
 Smith V. Masters, 15 Wend. (N. Y.) v. Sullivan, 12 E. I. 212. 
 
 270. See also Com. v. Gray, 129 Mass. ^ gweet v. Sherman, 21 Vt. 23. See 
 
 474, where the defendant was allowed also Judson v. Blanchard, 4 Conn. 557. 
 
 to show the character of the female ' McClellant). State (Wis.) 28 N.W. 
 
 for chastity to be good, as a part of Eep. 347. 
 
 his defence; and E. v. Clarke, 2 Stark, 8 People v. White, 19 N. W. Rep. 
 
 242, where general evidence of char- (Mich.) 174. 
 
 acter was received after the prosecu- ^ See, generally, Howman v. Earle, 
 
 trix's character had been impeached 63 N. Y. 267 ; Wightman v. Coates, 
 
 upon her cross-examination. 15 Mass. 1. 
 
 38 & 9 Vict. c. 10, § 0; 35 & 36 
 Vict. c. 6, § 4. 
 
§ 225.] CONFIKMING AilD COEEOBOKATING. 373 
 
 part of the plaintiff, after the promise, she may undoubtedly 
 vindicate her character if she can.^ 
 
 (4) Divoroe. In divorce cases, it is a general rule in most 
 jurisdictions not to grant a decree on the uncorroborated 
 testimony of the complainant,^ or even on the confession of 
 the defendant, standing alone.^ In some States neither party 
 to the suit can testify to the fact of adultery, when that is 
 the ground of divorce, but the rule is otherwise when the 
 suit is based on some other ground, such as cruelty, deser- 
 tion, etc.* 
 
 Where a paramour or spy is a witness, corroboration is 
 necessary, as the witness is often looked upon in the light of 
 an accomplice,* but, even an alleged paramour who appears 
 as a witness in obedience to process, and denies any crimi- 
 nality, need not be corroborated.^ 
 
 (5) Perjury. Formerly, at least two witnesses were re- 
 quired to testify to the commission of perjury in order to 
 sustain a conviction ; for otherwise there would be no niore 
 than the oath of one man against that of another.^ The 
 modern rule is that the evidence must more than counter- 
 balance the oath of the defendant and the presumption of 
 innocence.^ If only one witness proves the crime, therefore, 
 he must be corroborated by circumstances, sufficient to de- 
 stroy the balance between his own and the defendant's oath.^ 
 Documentary and circumstantial evidence, without the pro- 
 duction of any living witness, may be sufficient to convict. ^^ 
 
 » See Kniffin v. McConnell, 30 N. Y. '1 Stark. E v. 443 ; 4 Bl. Com. 358 ; 
 
 285; Southard v. Rexford, 6 Cow. 2 Riiss. Cr. 1791. 
 
 (N. Y.) 254 ; Wells v. Padgett, 8 Barb. » 1 Greenl. Ev. §§ 257-259 and 
 
 (N. Y.) 323. authorities cited. 
 
 2 Robbins v. Robbins, 100 Mass. ^ As to the sufBciency of the cor- 
 150; Tate v. Tate, 11 C. E. Gr. (N. J.) roborative evidence, see Woodbeck v. 
 55. But see to the contrary. Flattery Keller, 6 Cow. (N. Y.) 118, 121. See 
 V. Flattery, 88 Pa. St. 27. also Reg. v. Braithewaite, 8 Cox, C. C. 
 
 3 Lyon V. Lyon, 62 Barb. (N. Y.) 254; Reg. v. Boulter, 16 Jur. 135; 
 138; Summerbell v. Summerbell, 10 State v. Buie, 43 Tex. 532; Com. r. 
 Stew. (N. J.) 603 ; Evans v. Evans, 41 Pollard, 12 Mete. (Mass.) 225 ; Ven- 
 Cal. 103. able's Case, 24 Gratt. ( Va.) 639 ; Russ. 
 
 * As to the competency of the parties Cr. 77-86 ; Williams v. Com., 91 Pa. St. 
 
 in these cases, see eupra, § 168. See 493 ; People v. Stone, 32 Hun (N. Y.) 
 
 also, as to corroboration of the com- 41; State v. Heed, 57 Mo. 252; Com. 
 
 plainant's testimony as to cruelty, u. Parker, 2 Cush. (Mass.) 212. 
 Berdell v. Berdell, 80 HI. 604. ii United States v. Wood, 14 Pet. 
 
 5 See infra. Chap. XVI. (U. S.) 430, reviewing the early decis- 
 
 6 Pollock V. Pollock, 71 N. Y. 137. ions. 
 
374 CEEDIBILITY. , [CHAP. XV. 
 
 (6) Rape. The rule in these cases is that evidence may be 
 given that the prosecutrix made a complaint of the assault 
 to some one, but not what complaint ;^ but, if she be im- 
 peached on this point (and the particulars of the complaint 
 may lawfully be elicited on the cross-examination), the facts 
 she stated when she made her complaint may be proved by 
 way of confirming her testimony.^ So, also, she may be cor- 
 roborated, as in other cases, where her character for chastity 
 is impeached. 
 
 (7) Treason. The Constitution of the United States pro- 
 vides, that " no person shall be convicted of treason unless 
 on the testimony of two witnesses to the same overt act, or 
 on confession in open court." ^ Under the English statute,* 
 where there were two or more overt acts alleged, one witness 
 tj each was deemed enough, two witnesses in all being suffi- 
 cient to support a conviction.^ Where the prisoner's confes- 
 sion was introduced to confirm the testimony of the witnesses, 
 the' confession could be proved by one credible witness,^ as 
 indeed could the offence itself, at common law.'^ 
 
 1 Reg. V. Walker, 2 Moo. & Rob. the peace, it was held competent for 
 212 ; Keg. v. Megson, 9 Car. & P. 420 ; the prosecution, in corroboration, to 
 State u. Niles, 47 Vt. 82 ; Baccio v. prove her declarations on the day fol- 
 People, 41 H- Y. 265; Higgins o. lowing the commission of the crime. 
 People, 58 Id. 377 ; State v. Ivins, 7 S. P., Pleasant v. State, 15 Ark. 624. 
 Vr, (N. J.) 233 ; State v. Richards, 33 s Art. Z, § 3. Similar provisions 
 Iowa, 420. In some few jurisdictions are to be found in the constitutions of 
 the particulars of the complaint are many of the States. 
 
 admitted. State v. Kinney, 44 Conn. * 7 Wm. III. c. 3, § 2. 
 
 153; Burt v. State, 23 Ohio St. 394. ^ xhe New York statute is virtually 
 
 See also 14 Amer. Law Review, 8.32. the same as the English act. 2 Rev. 
 
 2 Thompson v. State, 38 Ind. 39. Stat. 735, § 16. 
 
 The statements of the female, made 6 r, ^^ Willis, 15 How. St. Tr. 622, 
 
 immediatehj after the transaction, may 624, 643; Fost. Disc. 241. See also 
 
 he proved to corroborate her testi- R. u. Crossfield, 26 How. St. Tr. 56, 
 
 mony. Lauglilin v. State, 18 Ohio, 57; RespublicSi v. Roberts, 1 Dall. 
 
 99. (U. S.) 39; Respublic^ v. McCarty, 
 
 In State v. Laxton (78 N. C. 564), 2 Id. 86 ; Burr's Trial, 196. 
 where the testimony of the prosecu- ' Fost. Disc. 233 ; Woodbeck v. 
 
 trix was Impeached by proof of incon- Keller, 6 Cow. (N. T.) 120 ; McNall. 
 
 sistent statements made by her on the Ev. 31. 
 preliminary trial before a justice of 
 
CHAPTER XVI. 
 
 COEROBOEATION OF ACCOMPLICES. 
 
 § 226. The Necessity of Corroboration. 
 
 § 227. Its Sufficiency. 
 
 § 228. Who are deemed Accomplices within the Eule. 
 
 § 226. The Necessity of Corroboration. — Accomplices be- 
 ing competent witnesses, as we have already seen,^ it would 
 seem to follow, necessarily, that in case the jury credit their 
 testimony, a conviction may be legally founded upon it, 
 though it is not corroborated or confirmed by other evi- 
 dence ; for it is as much the province of the jury to deter- 
 mine upon the degree of credit to be given to the testimony 
 of an accomplice, as to that of any other witness. And it 
 may be said, that at common law, as laid down by numerous 
 decisions, a conviction obtained upon the unsupported testi- 
 mony of an accomplice is stiictly legal.^ And such is the 
 rule in many of the States,^ while in others (by statutory 
 enactment) corroboration of the accomplice witness is a 
 necessary prerequisite to conviction.* 
 
 1 Supra, §§ 21, 42, 43. Stape v. People, 21 Hun (N. Y.) 399 
 
 2 R. u. Atwood, Leach, C. C. 521 ; {contra, under N. Y. Code, § 399, see 
 B. V. Durham, Id. 538 ; 1 Hale, P. C. infra) ; State v. Holland, 83 N. C. 624 ; 
 303 ; E. V. Dawber, 3 Stark. .34 ; E. v. s. c, 35 Am. Eep. 587. 
 
 Jarvis, 2 Moo. & E. 40; E. v. Hast- * Marlerti. State,67 Ala. 55; Lump- 
 ings, 7 Car. & P. 152 ; E. „. Jones, 2 kin c. State, 68 Ala. 56 ; People v. 
 Campb. 132 ; s. i;., 31 How. St. Tr. Ames, 39 Cal. 403 ; People v. Melvane, 
 325; E. » Barnard,! Car. & P. 87. Id. 614; People v. Cloonan, 50 Cal. 
 See supra, p. 312, note 3. 449 ; Johnson v. State, 4 Greene (Iowa) 
 8 United States v. Neverson, 1 65 ; Upton v. State, 5 Iowa, 465 ; Bowl- 
 Mack. (D. C.) 152 ; United States v. ing t-. Commonwealth, 79 Ky. 604 ; 
 Bicksler, Id. 841 ; State v. Stebbins, Craft v. Commonwealth, 80 Ky. 349 ; 
 29 Conn. 463 ; State v. Williamson, 42 People o. Courtney, 28 Hun (N. Y.) 
 Id. 261 ; United States v. Plemraing, 589 ; People v. Eyiand, Id. 568 ; Lo- 
 18 Fed. Eep. (III.) 907; Collins v. pez u. State, 34 Tex. 133; Wright y. 
 People, 98 111. 584 ; s. c, 38 Am. Eep. State, 43 Id. 170 ; Nourse v. State, 2 
 105; Johnson v. State, 65 Ind. 269; Tex. App. 304; Davis v. State, Id. 
 Ayers v. State, 88 Ind. 275; Com. v. 588; Eoach v. State, 4 Id. 46; Miller 
 Holmes, 127 Mass. 424 ; State v. Wat- v. State, Id. 251 ; Powell v. State, 15 
 son, 31 Mo. 361 ; Olive u. State, 11 Id. 441 ; Dunn >•. State, Id. 560 ; State 
 Neb. 1 ; Territory of New Mexico v. v. Howard, 32 Vt. 380. 
 Kinney, 1 West Coast Eep. 801; 
 
376 CKEDIBILITY. [CIIAr. XVI. 
 
 But this rule of law, that a conviction may be fountled 
 npon the testimony of an avowed accomplice, and upon that 
 alone — even in those jurisdictions where it obtains, — has been 
 greatly modified in practice ; and it has long been considered, 
 as a general rule of practice, that the testimonj' of an accom- 
 plice ought to receive confirraation; and that, unless it be 
 corroborated in some material part by unimpeachable evi- 
 dence, the presiding judge may, in his discretion, advise the 
 jury not to convict the prisoner upon it. It is considered 
 that he ought to do so.^ And, as the jury will rarely disre- 
 gard this advice from the bench, such convictions are ex- 
 tremely rare, and the substantial result is nearly the same as 
 if the practice depended upon a rule of law, instead of being 
 only the exercise of the discretion of the trial judge. If the 
 judge refuses to give this advice, and a conviction results — 
 or if the jury convict the prisoner contrary to the advice of 
 the judge — in either case, the conviction will stand.^ There 
 are some adjudications which hold that the rule requiring 
 confirmation does not extend to cases of misdemeanors;^ but 
 such a distinction, for which there appears to be no sound rea- 
 son, is not recognized in others.* The rule, however, does 
 not extend to civil cases, where an accomplice in a crime is a 
 witness.^ 
 
 § 227. Its Sufficiency. ^ Considerable difference of opin- 
 ion is apparent, upon a review of the adjudications, as to the 
 nature and extent of the corroboration necessary to authorize 
 a conviction upon accomplice testimony. Some learned jur- 
 ists have considered the confirmation of the witness' testimony 
 upon any material part of the case, sufficient ; on the theory 
 that, if it be proven that he speaks the truth in one material 
 
 1 Rose. Cr. Ev. 120 ; R. v. Barnard, roll r. Com., 84 Pa. St. 107. But see 
 
 1 Car. & P. 87 ; R. r, Stubbs, 7 Cox, Ray v. State, 1 Greene (Iowa) 316. 
 
 C. C. 48; United States r. Neverson, » R. u. Jones, 31 How. St. Tr. 315; 
 
 1 Maek. (D. C.) 152; United States v. Truss v. State, 13 Lea (Tenn.) 311 ; 
 
 Bicksler, Id. 341 ; State v. Lowber, 1 Askea v. State, Ga. Sup. Ct. Oct. 14, 
 
 Houst. (Del.) Cr. 324; Collins v. Peo- 1885; United States v. Harris,2 Bond 
 
 pie, 98 111. 584; s. c ., 38 Am. Rep. (U. S.) 311. 
 
 105; Ray 1-. State, 1 Greene (Iowa) * State w. Davis, 38 Ark. 581. See 
 
 316 ; Commonwealth v. Brooks, Gray also United States v. Smith, 2 Bond 
 
 (Mass.) 299; Olive i-. State, 11 Neb. (U.S.) 323; United States v. One Dis- 
 
 1 ; Ingalls v. State, 48 Wis. 647. tillery, Id. 399 ; Parsons t. State, 4:1 
 
 2R. V. Stubbp, 7 Cox, C. C. 48; Ga. 197. 
 
 State V. Litchfield, 58 Me. 267 ; Car- ^ Kalikoff v. Zoehrlaut, 43 Wis. 
 
 373. 
 
§ 227.] 
 
 COEKOBOEATION OF ACCOMPLICES. 
 
 377 
 
 jiart of his testimony, the jury are authorized to believe other 
 parts of his story, though unconfirmed ;i collateral facts, 
 however, and irrelevant and immaterial matters cannot be 
 proven to support the witness.^ Other courts have consid- 
 ered proof of the corpus delicti, alone, sufficient to corrobo- 
 rate the testimony of the accomplice ; ^ but the true rule, sup- 
 ported by far the greater weight of judicial opinion, is that 
 the confirmatory evidence must, in some degree at least, 
 tend to connect the prisoner with the commission of the 
 crime charged against him, and show his participation in it, 
 and not merely go to prove the commission, by some one, of 
 the offence in question, or the circumstances attending its 
 commission.* Thus, proof of facts merely casting upon the 
 defendant a grave suspicion of guilt, are not sufficient for this 
 purpose ; ^ but the corroboration may be by circumstantial 
 
 1 Montgomery v. State, 40 Ala. 
 684; State u. Sehlagel, 19 Iowa, 169; 
 Upton V. State, 5 Iowa, 405 ; State v. 
 Ilennessj', 55 Iowa, 299; Territory v. 
 Corbett, 3 Mont. 50; Erb v. Com- 
 monwealth, 98 Pa. St. 338; State i: 
 Howard, 32 Vt. 380; People v. Lee, 2 
 Utah, 441. Compare State v. Allen, 
 57 Iowa, 431. 
 
 2Marler v. State, 68 Ala. 580; 
 State V. Odell, 8 Greg. 30; Cora. 
 V. Bosworth, 22 Pick. (Mass.) 397- 
 400, explained in Com. v. Holmes, 127 
 Mass. 424; State v. Graff, 47 Iowa, 
 384. See Dcspard's Case, 28 How. St. 
 Tr. 488 ; Joy on Accomp. pp. 98, 99; 
 Harper v. State, 11 Tex. App. 1. 
 
 3 E. C-. Atwood, Leach, C. C. 521. 
 
 < Marler v. State, 67 Ala. 55 ; Peo- 
 ple V. Garnett, 29 Cal. 622 ; People v. 
 Ames, 39 Cal. 403; People v. Mel- 
 vane, Id. 614 ; People v. Cloonan, 50 
 Cal. 449; Bay <.. State, 1 Greene 
 (Iowa) 310 ; State v. Willis, 9 Iowa, 
 582; State v. McKenzie, 18 Id. 573; 
 State V. Thornton, 26 Iowa, 79; Com. 
 V. Holmes, 127 Mass. 424; Territory 
 of New Mexico v. Kinney, 1 West 
 Coast Eep. 801 ; People v. Courtney, 
 28 Hun (N. Y.) 589 ; People v. Eyland, 
 Id. 568; Watson v. Commonwealth, 
 95 Pa. St. 418 ; Wright v. State, 43 
 Tex. 170; Nourse v. State, 2 Tex. 
 App. 304; Davis v. State, Id. 588; 
 
 Jones V. State, 7 Id. 457 ; Eoach r. 
 State, 8 Id. 478; Watson v. State, 9 
 Id. 237; Welden v. State, 10 Id. 400; 
 Cohea v. State, 11 Id. 622. 
 
 SMcCalla v. State, 60 Ga. 340. 
 See also Simras v. State, 8 Tex. App. 
 230. 
 
 In State u. Kellerman (14 Kan. 
 135), the accused was charged with 
 stealing a horse. The owner testified 
 that it was taken out of his pasture 
 during the night time, and the accom- 
 plice testified that an arrangement 
 was made between the defendant and 
 himself for stealing and selling a 
 horse, and in pursuance thereof, on 
 the night that this horse was taken 
 out of the pasture it was brought by 
 defendant to witness and by him taken 
 to a neighboring town and sold, and 
 produced a writing admitted by de- 
 fendant to have been written and 
 signed by himself, certifying that the 
 witness was duly "authorized to sell" 
 this horse, described in the writing as 
 "my horse." This writing was held 
 sufficient corroborating testimony to 
 sustain a conviction. 
 
 In Com. V. Drake (124 Mass. 21), de- 
 fendant being charged with procuring, 
 at her own house, an abortion on S. 
 denied that S. and the accomplice had 
 ever visited the house. Evidence that 
 the latter had always lived in another 
 
378 
 
 CREDIBILITY. 
 
 [chap. XTI'. 
 
 evidence, if sufficiently strong and direct, as well as by the 
 testimony of witnesses.^ In case there are two or more de- 
 fendants on trial, corroboration of the testimony of the ac- 
 complice criminating one of them, will not sustain his testi- 
 mony against the other defendants, so as to authorize their 
 conviction.^ So, also, one accomplice cannot confirm the tes- 
 timony of another, so as to predicate a conviction upon it ; ^ 
 but the confession or admission of the principal defendant, 
 connecting himself with the crime, will be sufficient, and no 
 further confirmation of the accomplice will be necessary.* In 
 no case need the confirmatory evidence, standing alone, be 
 sufficient in itself to warrant a conviction,^ or even to make 
 out a, prima facie case against the prisoner." 
 
 § 228. Who are deemed Accomplices -within the Rule. — In 
 
 town ; that at the time alleged S. and 
 the accomplice had been left near tlie 
 house by a hackman ; and that the ac- 
 complice's testimony describing its in- 
 terior was accurate, was held sufficient 
 to corroborate the accomplice. 
 
 In another case, it was held that testi- 
 mony of a witness that he saw defend- 
 ant at his home, and in the vicinity of 
 the place where the crime was com- 
 mitted, is corroborative of the testi- 
 mony of an accomplice as to defend- 
 ant's guilt, when the defence relied 
 on is an alibi. Territory of New Mex- 
 ico V. Kinney, 1 West Coast Eep. 801. 
 Compare State v. Odell, 8 Oreg. 30. 
 
 So, any act or declaration of the ac- 
 complice which goes to show tliat he 
 and the prisoner committed the crime, 
 may be proved to corroborate the ac- 
 complice. State V. Ford, 3 Strobh. 
 (S. C.) 517 n. 
 
 On a trial for bribery, an accom- 
 plice testified that he liad bribed de- 
 fendant by giving him a clieck on a 
 certain bank, payable to cash or 
 bearer, which had afterwards been re- 
 turned to witness by the bank; and 
 tlie prosecution was permitted to cor- 
 roborate the witness by showing by the 
 books of the bank, a credit to defend- 
 ant for a, like amount deposited by 
 cheek two days after the alleged brib- 
 ery. State V. Smalls, 11 So. Car. 262. 
 
 So, in larceny, possession of the stolen 
 goods by defendant. If clearly proved, 
 
 will suffice to confirm the testimony 
 of tlie accomplice tliat he and the ac- 
 cused stole them. Jernigan v. State, 
 10 Tex. App. 546. See also Smith v. 
 State, 59 Ala. 104 ; Ford v. State, 70 
 Ga. 722. 
 
 1 State V. Stanley, 48 Iowa, 221. 
 See also, on the sufficiency of the 
 confirming proof, Hughes v. State, 58 
 Miss. 355; Wyoming County v. Bard-, 
 well, 84 Pa. St. 104 ; Hester v. Com- 
 monwealth, 85 Id. 139; Ivuichelow c. 
 State, 5 Humph. (Tenn.) 9 ; Gillian v. 
 State, 3 Tex. App. 132. 
 
 2 R. V. Moores, 7 Car. & P. 270 ; E. 
 V. Wells, M. & M. 326 ; R. v. Wilkes, 
 7 Car. & P. 271. But see contra, King 
 V. Jones, 2 Campb. 132 ; s. u., 31 How. 
 St. Tr. 325; R. v. Dawber, 3 Stark. 
 34; Birkett's Case, Russ. & Ry. C. C. 
 252 ; King u. Hastings, 7 Car. & P. 
 152. . 
 
 3 Johnson r. State, 4 Greene (Iowa) 
 65; Gonzales v. State, 9 Tex. App. 
 374. 
 
 4 People V. Cleveland, 49 Cal. 578 ; 
 People V. Zimmerman (Cal.), 3 West 
 Coast Rep. 59 ; Partee v. State, 67 Ga. 
 570; Territory v. Mahaffey, 3 Mont. 
 112. 
 
 s Lumpkin v. State, 68 Ala. 56 ; 
 , Hoyle V. State, 4 Tex. App. 239. 
 
 « Slate V. Lawlor, 28 Minn. 216. 
 Compare Jackson v. State, 4 Tex. 
 App. 293; Jones v. State, Id. 529. 
 
§ 228.] COEEOBORATION OF ACCOMPLICES. ■ 379 
 
 some instances a witness apparently occui^ying the position 
 of an accomplice of the prisoner on trial, is not in reality im- 
 plicated as such, either because he is a several offender, such 
 as a principal in the second degree,^ or b'ecause his apparent 
 connection with the crime was for the purpose of detecting 
 the wrong-doer and bringing him to punishment. It is the 
 h\tter class with which we are now concerned — spies, in- 
 formers, and detectives, who cannot, as we have already seen,^ 
 be said to be accomplices, so as to need corroboration.^ 
 
 1 R. u. Hargraves, 5 Car. & P. 170 ; 343) are not accomplices ; while a wo- 
 
 People V, Cook, 5 Park. (N. Y.) 351 ; man witli whom incest was committed 
 
 Stone V. State, 3 Tex. App. 675. (Freeman v. State, 11 Tex. App. 62 ; 
 
 '^ Supra, § 189, and cases there s. u., 40 Am. Rep. 787), and the rart- 
 
 cited. ner of a gamester who advanced him 
 
 ' See also People v. Farrell, .30 money to bet (English o. State, 35 
 
 Cal. 316; Harris v. State, 7 Lea Ala, 428), were held to be accomplices, 
 
 (Tenn.) 124. It has been held that and coiroboration necessary. As to 
 
 the purchaser of liquor unlawfully the proof necessary to impart to a 
 
 sold (People w. Smith, 28 Hun (N.Y.) witness the character of an accom- 
 
 626; s. u., 92 N. Y. 665), and the wo- plice, see Com. v. Ford, 111 Mass. 
 
 man on whom an abortion was pro- 394; Com. v. Glover, Id. .395; Rhodes 
 
 duced (Com. v. Boynton, 116 Mass. u. State, 11 Tex. App. 563. 
 
Part III. 
 
 EXAMINATION. 
 
PART III.— EXAMINATION. 
 
 CHAPTER XVII. 
 
 IN GENERAL. 
 
 § 229. Discretionary Powers of the Court. 
 
 § 230. The Order of Examination. 
 
 § 231. Notice of Intention to examine a Witness. 
 
 § 232, Examination on the voir dire. 
 
 § 229. Discretionary Powers of the Court. — • The whole 
 subject of the viva voce examination of witnesses in open 
 court, is confided, of necessity, to a very great extent, to the 
 sound judicial discretion of the judge presiding at the trial ; 
 and but few positive and unbending rules have been laid 
 down with regard to it. The controlling object being simply 
 to elicit the truth from the witness, it would seem to the lay- 
 man's mind a simple matter to formulate rules and regula- 
 tions to that end, and which could rarely fail to accomplisli 
 it; "but the character, intelligence, moral courage, bias, mem- 
 ory, and other circumstances of witnesses are so various, as 
 to require almost equal varietj'' in the manner of interrogation, 
 and the degree of its intensity, to attain that end." ^ There- 
 fore much is left to the discretion of the judge, the exercise 
 of which discretion is, in general, not the subject of review, 
 even by an appellate court, except where its abuse can be 
 shown to the prejudice of the party complaining. We aie 
 speaking now of the control of the court over the manner and 
 extent of an examination of a witness, not of rulings on the 
 admissibility of testimony. The propriety of the latter is 
 tested by rules of evidence, with which we are not now con- 
 cerned.2 
 
 ' 1 Greenl. Ev. § 431. which must necessarily be so often 
 
 ^ The entire head of the examina- applied or relaxed, according to eir- 
 
 tion of witnesses; introduces to a set cumstanees apparent to no one except 
 
 of general rules which have grown the presiding judge, that a strict uni- 
 
 out of the practice at nisi prius, but forraity at all times is not to be ex- 
 
384 EXAMINATION. [CHAP. XVII. 
 
 § 230. The Order of Examination. — When a witness has 
 been regularly sworn,^ he is first examined by the party call- 
 ing him to testify; this is called the direct examination, or 
 examination-in-chief.^ When the direct examination is fin- 
 ished, the adverse party is at liberty to cross-examine;^ after 
 which the party calling the witness may re-examine him.* 
 This usually closes the examination of the witness, though in 
 many cases, the adverse party is permitted to re-cross-examine 
 at the close of the re-examination ; but this is no more than a 
 further cross-examination, permitted either because new mat- 
 ter is brought out in the re-examination, or because the judge, 
 in his discretion, sees proper, under the circumstances, to al- 
 low it. The office of the examination-in-chief is to lay be- 
 fore the court and jury the whole of the information of the 
 witness that is relevant and material : that of the cross-exam- 
 ination is to search and sift, to correct, and supply omissions ; 
 that of the re-examination, to explain, to rectify, and put in 
 order.^ 
 
 § 231. Notice of Intention to E:samine a Witness. — - In the 
 New York chancery practice, where a party wished to exam- 
 ine witnesses, he had to furnish a list of them to the examiner 
 in advance of the hearing ; ^ and under the former code prac- 
 tice in that State, notice was required of the intended exam- 
 ination of the assignor of a chose in action, in certain cases.'' 
 But in modern practice, a party to a civil action cannot be 
 required to give notice to his adversary of what witnesses he 
 will rely upon at the trial.^ In criminal cases, however, the 
 rule is that the prosecution must indorse on the indictment 
 or information a list of the witnesses who are to be examined 
 on behalf of the government, but it would seem that the 
 prosecutor need not call all the witnesses whose names ap- 
 
 pected, and indeed, in some instances, ^ gee infra, Chap. XVIII. 
 
 would prove injurious to the interests s See infra, Chap. XIX. 
 
 of justice. Much, therefore, is con- * See infra. Chap. XX. 
 
 flded to the discretion of the judge, " 2 Pliil. Ev. *877. 
 
 which, though it should not be exer- ^ Powell v. Tuttle, 10 Paige (N.Y.) 
 
 cised by an arbitrary strictness on the 522. 
 
 one hand, or arbitrary indulgence and ' Vassaer x,. Livingston, 13 N.Y. 
 
 relaxation on the other, should never 248; Bidwell v. Astor Mutual Ins. 
 
 be withheld from its oflBce in proper Co. 16 Id. 263. 
 
 cases. 2 Ph. Ev. (Cow. & H. notes) 8 Tliurmon v. Trammell, 28 Te.x. 
 
 «878, note 570. 371. 
 
 Infra, § 235. 
 
§ 232.] IN GENBEAL. 385 
 
 pear in this list,-^ and that he is not confined to the list, but 
 may call witnesses whose names do not appear in it,^ if not 
 as witnesses-in-chief, at least in rebuttal.^ 
 
 § 232. Examination on the Voir Dire. — When a witness is 
 produced to be sworn in chief, and an objection to Kis com- 
 petency is made by the adverse party, either on the ground 
 of interest, bias, infamy, or any other disqualifying cause, the 
 court will proceed to try his competency, and this is usually 
 done by examining the witness on the voir dire, as we have 
 already seen,* or, sometimes, by extrinsic evidence upon the 
 question.^ But the common law grounds of objection to 
 competency have been so far removed by statute, that this 
 subject has become unimportant, and has already been suffi- 
 ciently discussed in a former part of this work.^ 
 
 1 People V. Quick, 51 Mich. 547; see Smith v. State, i Greene (Iowa) 
 People V. Walcott, Id. 612. 189. 
 
 2 People V. Lopez, 26 Cal. 112 ; » State v. Parish, 22 Iowa, 284. 
 People V. Symonds, 22 Cal. 348 ; » Supra, § 175. 
 
 People V. Bonney, 19 Cal. 426. But ^ Supra, § 176. 
 
 ^ Supra, Chap. XI. 
 
CHAPTER XVIII. 
 
 EXAMINATION-IN-CHIEF, OK DIRECT EXAMINATION. 
 
 § 233. General Eules. 
 
 § 234. Power of Court to control and limit. 
 
 § 235. The Oath or Affirmation. 
 
 § 286. Interpreters. 
 
 § 237. Separate Examination. — Exclusion from Court-room. 
 
 § 238. What Questions are proper. 
 
 § 239. Inquiring as to Intent or Motive. 
 
 § 240. Rule forbidding Leading Questions. 
 
 § 241. What Questions are Leading. 
 
 § 242, When One may lead his Own Witness. 
 
 § 243. Propriety and Sufficiency of Witness' Answers. 
 
 § 244. Objections to questions or answers. 
 
 § 233. General Rules. — It is a rule of evidence that the 
 party holding the affirmatiTe, is bound, in the first instance, 
 to exhaust his testimony, either in sustaining his own allega- 
 tions or answering those of his antagonist. The party ex- 
 amining a witness-in-chief, is bound at his peril to ask all 
 material questions in the first instance; and if he fail to do 
 this, it cannot be done in reply. No new question can be 
 put in reply unconnected with the subject of the cross-exam- 
 ination, and which does not tend to explain it. If a question 
 as to any material fact has been omitted upon the examina- 
 tion-in-chief, the usual course is to suggest the question to 
 the court, which will exercise its discretion in putting it to 
 the witness.^ 
 
 1 1 Stark. Ev. 150. In E. v. ination, and therefore must confine 
 Beezley (4 Car. & P. 218), the pros- himself to what arose out of the eross- 
 ecutor, by direction of the court, examination. See also the remarks 
 called witnesses, whose names ap- of Mills, J., on this point, in Braydon 
 peared on the back of the indictment, v. Goulman, 1 Men. (Ky.) 115, 117, 
 and had them sworn to give the pris- 1 18 ; E. v. Stimpson, 2 Car. & P. 415 ; 
 oner's counsel a chance of cross- Knapp v. Haskall, 4 Id. 590; Whit- 
 examination, but did examine them in tingham v. Bloxham, Id. 597 ; Eowe v. 
 chief. The prisoner's counsel, having Brenton, 3 Mann. & Ry. 133 ; Giles 
 accordingly cross-examined, it was v. Powell, 2 Car. & P. 259; George 
 held that after this, the counsel for v. Radford, 3 Id. 404; Brown v. Giles, 
 the crown could not examine them 1 Id. 118. 
 in chief, but only by way of re-exam- 
 
§ 234.J ' EXAMINATION-IN-CHIEF, 387 
 
 Another rule, or rather another form of the rule just dis- 
 cussed, which may be briefly noticed here, is that wbicli 
 requires the plaintiff to give evidence-in-chief, anticipating 
 or avoiding some supposed defence set up in a special plea 
 interposed by the defendant. This rule is thus stated in a 
 leading English case : " When affirmative pleas of justifica- 
 tion are put on the record with the general issue, the plain- 
 tiff's counsel may, if they please, not only prove the facts of 
 the declaration, but also may, in the first instance, and before 
 the defendant's case is gone into at all, go into any evidence 
 which goes to destroy the effect of the justifications, by way 
 of anticipating the defence ; or, if they please, content them- 
 selves with proving the fact on the general issue, and then 
 close their case, leaving the defendant to make out his justifi- 
 cations as he can, and afterwards go into evidence in reply as 
 to the justifications. But if the plaintiff's counsel, knowing 
 by the pleas what the defence is to be, close their case, and 
 trust to evidence in reply, they are to be restricted to such 
 evidence as goes exactly to answer the case proved, or at- 
 tempted to be proved by the defendant, in support of the 
 justifications, and they cannot be allowed to go beyond it." ^ 
 In some States, notably Pennsylvania, greater indulgence in 
 respect of the order of proof is allowed ; ^ but the whole mat- 
 ter lies in the discretion of the presiding judge, and belongs 
 more particularly to the general law of evidence and plead- 
 ing than to that of witnesses, and needs no further consider- 
 ation here. 
 
 § 234. Power of Court to control and limit. — The time 
 and manner of examining a witness is in the discretion of 
 the judge before whom the trial is had.^ This discretion 
 extends to determine the length of time,* and the extent ^ to 
 which the witness may be examined. If counsel persist in 
 an improper course of examination, tending to delaj' or em- 
 barrass the opposite party, or to hinder the course of justice, 
 
 1 Pierpont v. Shapland, 1 Car. & P. ^ Duncan v. McCullough, 4 S. & K. 
 437. See also Wharton v. Lewis, 1 (Pa.) 480. 
 
 Car. & P. 529; Scott v. Woodward, * Miilhollin v. State, 7 Ind. 646; 
 2 McCord (S. C.) 161. Morcin v. Solomons, 7 Rich. (S. C.) 
 
 2 Curren t). Connery, 5 Binn. (Pa.) 97. 
 
 488 ; Richardson v. Stewart, 4 Id. ^ Adriance r. Arnot, 31 Mo. 471. 
 198; Culbush u. Gilbert, 4 S. & R. 
 (Pa.) 5S1. 
 
388 EXAMINATION. [CHAP. XVIII. 
 
 the judge may send the witness from the stand.^ So he may 
 interfere and protect the witness against irrelevant inquiries,^ 
 and overrule a question repeated after being several times 
 substantially answered,^ and allow the witness to finish a 
 proper answer to a proper question before permitting another 
 to be put.* 
 
 The judge has an unlimited right, in its discretion, to 
 interrogate the witness himself, both in civil and criminal 
 cases,^ even to the extent of asking leading questions.^ 
 
 So also the court is the exclusive judge whether a witness 
 understands the obligation of an oath, and has sufficient 
 intelligence to testify;^ and may compel counsel to disclose, 
 before examining a witness, what he expects to prove by 
 him.^ Again, the court may limit the number of witnesses 
 to be examined in proof of a particular fact ; ^ and one who 
 complains that the court refused to permit a particular wit- 
 ness to be sworn, must show that such witness was compe- 
 tent, or it will be presumed that he was not.^° 
 
 § 235. The Oath or Afilrmation. — To render the viva voce 
 testimony of a witness legal evidence, it must be given under 
 the solemn sanction of an oath or affirmation ; and it is the 
 duty of the party calling him to' see that he is sworn.^^ As 
 to the manner of administering the oath, the peculiar cere- 
 
 1 Peck V. Richmond, 2 E. D. Smith n Hawks v. Baker, 6 Me. 72, where 
 
 (N. Y.) 380. a witness having testified, believing 
 
 " Varona v. Socarras, 8 Abb. (N. Y.) that he had been sworn, but by some 
 
 Pr. 302. oversight tlie oatli had been omitted, 
 
 ' Morcin v. Solomons, 7 Rich, and this was not discovered by either 
 
 (S. C.) 97. party till after the trial; nevertheless 
 
 " State V. Scott, 80 N. C. 365. the verdict was set aside. Contra, 
 
 5 Epps V. State, 19 Ga. 102. Cady v. Norton, 14 Pick. (Mass.) 236, 
 
 s Huffman v. Cauble, 86 Ind. 591 ; and Slauter v. Whitelock, 12 Ind. 
 
 Com. V. Galavan, 9 Allen (Mass.) 338, where it is held that the objec- 
 
 271. tion must be made as soon as the 
 
 ' State V. Perry, Bush. (N. C.) L. omission is discovered, or the error 
 
 330. See supra, §§ 2, 12. will be waived. In Nesbitt v. Dallam 
 
 8 People V. White, 14 Vi^end. (N. Y) (7 Gill & J. (Md.) 494), it is said that 
 
 111. Contra, see Force v. Smith, 1 if a party admits proof to be taken in 
 
 Dana (Ky.) 151. a cause without an oath, after it has 
 
 ^ Gray v. St. John, 35 111. 222 ; been acted upon and made the basis 
 
 Anthony o. Smith, 4 Bosw. (N. Y.) of a judgment, he cannot object to 
 
 503. 
 
 its admissibility. S. P., Lawrence '■. 
 
 "Davis V. Melvin, 1 Ind. 136; Houghton, 5 Johns. (N.Y.) 129. See 
 
 Whitewater Valley Canal Co. »•. Dow, also White v. Hawn, Id. 351; Blan- 
 
 Id. 141. See also Singleton's Will, chard v. Richley, 7 Id. 198. 
 8 Dana (Ky.) 315. 
 
§ 235.] EXAMINATION-IN-CHIBF. 389 
 
 ■* 
 
 inony adopted in his own country, or among those of the 
 same religious belief as himself, or which he deems most 
 binding on his conscience, is to be resorted to.^ Jews may 
 be sworn on the Pentateuch, with covered head;^ Mahome- 
 tans, upon the Koran ; ^ Gentoos, by touching the foot of a 
 Brahmin;* Chinese, by the ceremony of killing a cock, or 
 breaking a saucer, the witness declaring that if he speaks 
 falsely, his soul will be similarly dealt with ; ^ a Scotch cov- 
 enanter, and a member of the Scottish Kirk, by holding up 
 the hand, without kissing the book.^ Quakers, and others 
 who profess to entertain conscientious scruples against tak- 
 ing an oath in the usual form, are allowed to make an affirm- 
 ation, i.e. a solemn religious asseveration, that their testimony 
 shall be trueJ A wilful, false oath under such circumstances 
 is perjury.* 
 
 A witness need be sworn but once, though examined on 
 different days, and the issues may vary during the trial.^ 
 The answer he makes to the clerk, when demanding his 
 name, is a part of his testimony .1° If sworn before the 
 arraignment, on a criminal trial, but after, the prisoner has 
 signified his readiness to go on, it is unnecessary to re-swear 
 him.^^ If competent as a witness-in-chief, he must be sworn 
 in chief, although called to prove a particular fact only.^^ 
 
 1 Ormychund v. Barker, 1 Atk. 21. made at the time. McKinney v. Peo- 
 
 2 Id. p. 40, 42 ; Willes, 543 ; Cowp. pie, 7 111. 540. 
 
 389; or on the Bible, if they say they ' U. S. Eev. Stat. § 1. The usual 
 are Christians. R. v. GUham, 1 Esp. form is, "You do solemnly, sincerely, 
 N. P. 285. And even a Christian may and truly declare and affirm," etc. 
 be sworn on the Old Testament, if he N. Y. Code Civ. Pro. § 847. In Mas- 
 says he considers that a more binding sachusetts, in early times, liberty to 
 form. Edmonds v. Rowe, Ry. & Moo. affirm was confined to Quakers. 
 N. P. 77. United States v. Coolidge, 2 Gall. 
 
 8 Morgan's Case, 1 Leach, C.C. 64; (U. S.) 364. In New Jersey, a wit- 
 
 Fachina v. Sabine, 2 Str. 1104. ness who does not object to being 
 
 * See Ormychund -.■. Barker, 1 Atk. sworn cannot be allowed to affirm. 
 
 21. Williamson ;;. Carroll, 1 Harr. (N. J.) 
 
 5 R. V. Enhehman, Car. & Marsh. 217. 
 
 249; R. V. Alsley, 0. B. Sess. 1804; » Sells v. Hoare, 3 Bro. & B. 232. 
 
 Peake Ev. 141 n (5 cd.). ^ Bullock v. Koon, 9 Cow. (N. Y.) 
 
 « Mildrone's Case, 1 Leach C. C. 30. 
 
 459 ; "Walker's Case, Id. 498 ; Button " People v. Winters, 49 Cal. 383. 
 
 V. Colt, 2 Sid. 6; Mee v. Eeid, Peake, " State v. Weber, 22 Mo. 321. 
 
 N. P. 22. And so may an ordinary ^^ Unless he be a party to the rec- 
 
 American witness. Gill v. Caldwell, ord, called to prove the loss or de- 
 
 1 111. 28 ; Doss v. Birks, 11 Humph, struction of a paper. Jackson v. 
 
 (Tenn.) 481; unless objection be Parkhurst, 4 Wend. (N. Y.) 369. 
 
390 EXAMINATION. [CHAP. XVIII. 
 
 • 
 
 The fact that the oath is more comprehensive than the 
 statute requires is no objection to its validity .^ The mean- 
 ing of the oath, "to tell the whole truth" is, to tell so much 
 of it as may be competent evidence, and may not tend to 
 criminate the witness himself.^ 
 
 § 236. Interpreters. — A witness who is unable to speak 
 the English language intelligibly must, for obvious reasons, 
 testify through the medium of a translator, or interpreter, 
 of the language in which he answers the questions put to 
 him.^ Thus, as we have already seen, a deaf-mute may tes- 
 tify by signs, which may be interpreted to the court and jury,* 
 and the whispers of a witness, at the moment physically 
 incapable of speaking aloud, may be repeated by some suita- 
 ble person appointed by the court.^ Where there is no stat- 
 utory provision for the employment of interpreters, the fact 
 that one was employed at the trial will raise a presumption, 
 on appeal, that the parties agreed upon that course, in ' the 
 absence of any showing of unfitness, partiality, or unfairness 
 upon the part of the person so employed.^ 
 
 The interpreter is sworn truly to interpret between the 
 court, the jury, and the witness ; the oath is then adminis- 
 tered to the witness in English, and interpreted to him by 
 the sworn interpreter, as it is pronounced by the clerk.'' The 
 interpreter should be instructed to interpret and report to 
 the court every statement made by the witness.^ In one 
 case it is held that he may take advantage of the suggestions 
 of others who are not sworn, with regard to the proper inter- 
 pretation of testimony, i^tating the result to the court as his 
 own interpretation ; ^ but to the writer this seems a rather 
 dangerous doctrine for general application. If either party 
 conceives that he has erroneously translated a word or phrase, 
 he may show that fact ; and where two interpreters disagree 
 as to the meaning of the word used (one saying that it means 
 " fall," another, " blow "), the court should require them to 
 give the primary signification of all the words used in con- 
 
 1 Ballanee u. Underbill, 4 111. 453. « Leetch v. Atlantic Mut. Ins. Co., 
 
 2 Com. u. Keid, 1 Leg. Gaz. Eep. 4 Daly (N. Y.) 518. 
 
 (Pa.) 182. ' Norberg's Case, 4 Mass. 81. 
 
 ^ See Norberg's Case, 4 Mass. 81 ; « People v. Wong Ab Bang, 3 West 
 
 Amory v. Fellows, 5 Id. 226. Coast Rep. 58. 
 
 * Supra, § 6. 9 United States <,-. Gibort, 2 Sumn. 
 
 6 Conner v. State, 25 Ga. 515. (U. S.) 19. 
 
§ 237.] EXAMINATION-IN-CHIBF. 391 
 
 uection therewith, that the jury may judge.^ Where docu- 
 ments in a foreign language were written by the witness 
 himself, he may translate them to the jury, without being 
 sworn as an interpreter.^ 
 
 § 237. Separate Examination — Exclusion from Court-Room. 
 Upon this topic there is considerable lack of harmony in the 
 decided cases. It is well settled, however, that the court has 
 the power, in the exercise of a sound discretion, to sequester 
 witnesses, or put them " under the rule," as it is sometimes 
 called ; i.e., to order the withdrawal from the court-room of 
 all the witnesses in the case, except the one then undergoing 
 examination ; ^ and that the action of the court in the matter 
 will not be revised in the absence of proof of an abuse of this 
 discretionary power.* This is not an arbitrary discretion, 
 and the proper practice, at least in Texas, is to require con- 
 sent of counsel to any relaxation of the rule in force in that 
 State, that sequestration shall always take place in criminal 
 cases.^ In Wisconsin, it is held, in an early case, that only 
 the witnesses on the same side as the one on the stand cau be 
 excluded.^ 
 
 In some jurisdictions this separation of the witnesses is 
 held to be a matter of right,'^ while in others it is not of right, 
 but of favor only ; ^ and even where the order of exclusion is 
 disobeyed, the court has a discretionary power to permit the 
 examination of the disobedient witnesses,^ or to reject their 
 testimony.^" Other decisions maintain that disobedience of 
 the rule does not disqualify a witness from testifying, but 
 goes to his credit only ; ^^ and that the court has no power to 
 
 1 Schnier v. People, 23 III. 17. Nash, 7 Car. & P. 632 ; Alison's Scotch 
 
 2 Kuhlman v. Medlinka, 20 Tex. Pr. pp. 542-545. 
 
 385. » Porter v. State, 2 Ind. 435 ; Han- 
 
 5 Errissman u. Errissman, 25 111. vey v. State, 68 Ga. 612; State i'. 
 
 136; McLean u. State, 16 Ala. 672; Brookshire, 2 Ala. 303 ; Sidgreaves f. 
 
 Johnson v. State, 2 Ind. 652 ; People Myatt, 22 Ala. 617 ; Sartorious v. 
 
 V. Green, 1 Park (N. Y.) Cr. 11. State, 24 Miss. 602 ; State v. Fitzsim- 
 
 * Powell u. State, 13 Tex. App. mons, 30 Mo. 236 ; Laughlin v. State, 
 
 244 ; Nelson v. State, 2 Swan (Tenn.) 18 Ohio, 99 ; R. v. Cook, 13 How. St. 
 
 237. Tr. 348; E. v. Vaughan, Id. 494; K. 
 
 5 Heath v. State, 7 Tex. App. 464. v. Goodere, 17 Id. 1015. 
 
 ^ Benaway •?. Conyne, 3 Chand. ^ ggg cases last cited ; also State v. 
 
 (Wis.) 214. Sparrow, 3 Murph. (N. C.) 487; Bul- 
 
 ^ Johnson v. State, 14 Ga. 55; State liner !■, People, 95 111. 394. 
 
 V. Zellers, 2 Halst. (N. J.) 220 ; Watts " Jackson v. State, 14 Ind. 327 ; 
 
 V. Holland, 56 Tex. 54; Southey u. Dyer i\ Morris, 4 Mo. 214. 
 
 " Pleasant o. State, 15 Ark. 024; 
 
392 EXAMINATION. [CHAP. XVIII. 
 
 exclude him from tlie witness-box, and commits reversible 
 error in so doing ; ^ the only effect of such disobedience on 
 the part of the witness being to render him amenable to pun- 
 ishment for contempt.^ 
 
 In applying the rule of sequestration, it has been consid- 
 ered proper to except from its application a party in interest 
 though not of record, who was also a witness,^ and the same 
 course was taken with the agent of a party whose presence 
 was necessary to assist counsel ; * and with a witness who 
 was one of the counsel in the case on trial.^ Expert wit- 
 nesses, also, whose opinions must often of necessity be based 
 upon facts sworn to by the other witnesses, are commonly 
 allowed to remain in the court-room. 
 
 In the face of so great a diversity of judicial opinion, any 
 attempt to harmonize, or to deduce a uniform rule of prac- 
 tice from the adjudications, would be futile. 
 
 § 238. "What Questions are Proper. — Few general rules 
 can be laid down as to this topic, inasmuch as the propriety 
 of the questions put by a party to his own witness, in proof 
 of his case, must, in the nature of things, depend to a very 
 great extent, upon the particular circumstances to be proved. 
 The object of the examination is to elicit the truth ; to get at 
 the facts, or such of them as bear upon the issue in favor of 
 the party calling the witness. As a general rule the ques- 
 tions put to the witness must call for his knowledge of some 
 fact, of present or past existence ; they must not, except in 
 special cases hereafter to be considered,^ be framed to elicit 
 the impressions or opinions of the witness. 
 
 Betts V. State, 66 Ga. 508 ; Grimes v. * Eyan v. Couch, 66 Ala. 244 ; Betts 
 
 Martin, 10 Iowa, 347. And see also o. State, 66 Ga. 508. 
 
 Hopper V. Commonwealth, 6 Gratt. ^ Powell n. State, 13 Tex. App. 244 ; 
 
 (Va.) 684; Hey v. Commonwealth, Pomeroy u. Baddeley, Ry. & Moo. 
 
 32 Id. 946. 480 ; Everett v. Lowdham, 5 Car. & P. 
 
 1 People V. Boscovitch, 20 Cal. 436 ; 91. 
 
 Keith V. Wilson, 6 Mo. 435 ; State v. As to the sufficiency of the with- 
 Salge, 2 Ney. 321 ; Huhbard v. Hub- drawal and separation of the wit- 
 bard, 7 Oreg. 42; Smith v. State, 4 nesses, and matters of practice con- 
 Lea (Tenn.) 428; Chandler D. Home, nected therewith, see Wade v. State, 
 2 M. & Rob. 423. 65 Ga. 756 ; Home v. Williams, 12 
 
 2 Rooks V. State, 65 Ga. ,330; Lassi- Ind. 324; Anonymous, 1 Hill (S. C), 
 ter V. State, 67 Ga. 739; BuUiner v. 251, 254-256; State o. McElmurray, 
 People, 95 111. 394. 3 Strobh. (S. C.) 33; Woods u. Mc- 
 
 8 Chester v. Bower, 55 Cal. 46. Pheran, Peck (Tenn.) 371. 
 
 6 Infra, Chaps. XXV., XXVI. 
 
§ 239.] EXAMINATION-IN-CHIEF. 393 
 
 The issue, also, must be kept in mind by the questioner, 
 and ouly material and relevant facts, not those which are 
 collateral and impertinent, may be inquired about.^ But it 
 is not necessary that every question put to a witness shall be 
 so broad and comprehensive, that the answer shall be evi- 
 dence of some issue in the case. If all the answers to a 
 series of questions upon the same general subject, taken to- 
 gether, are competent, each is competent, and a question 
 tending to elicit such an answer should be allowed.^ Each 
 question should call for a fact and not a conclusion of law, 
 and should not embrace the whole merits of the case.^ It is 
 no objection to a question that it assumes facts which are un- 
 disputed;* but a question based upon the supposition of facts 
 not proved, is improper.^ So, also, a compound question, one 
 part being admissible, and the remainder inadmissible, may be 
 rightfully excluded as a whole.^ But counsel are often al- 
 lowed to ask apparently irrelevant and consequently inadmis- 
 sible questions, upon their promise to follow them up at the 
 proper time, by proof of other facts, which, if true, would 
 make the question put legitimately operative.^ 
 
 § 289. Inquiry as to Intent or Motive. — It is quite well 
 settled that where the intent or motive which actuated a 
 person in doing a particular act or making a particular dec- 
 laration becomes a material question for decision, that person 
 may be asked, as a witness, to state what his intent or motive 
 was, it being a matter peculiarly within his own knowledge ; * 
 
 1 But if the answer to a question "^ People v. Graham, 21 Cal. 261 ; 
 asked may tend to prove or may form Carpenter v. Ambrosan, 20 111. 170. 
 part of the proof of the matters al- See also Sanderlin v. Sanderlin, 24 
 leged, though not wholly sufficient to Ga. 583 ; Klock v. State, 19 N. W. 
 prove them, it may be asked. Schuch- Rep. 543; State v. Smith, 49 Conn, 
 ardt V. Aliens, 1 Wall. (U. S.) 359. 376. 
 
 See also Lyon v. Tallmadge, 14 Johns. ^ vVyman ». Gould, 47 Me. 159 ; 
 
 (N. Y.) 501. George v. Norris, 23 Ark. 121 ; W^hite- 
 
 2 Atchison &c. E. E. Co. v. Stan- ford v. Burckmeyer, 1 Gill (Md.) 127. 
 ford, 12 Kan. 354. ' "Wyngert v. Norton, 4 Mich. 286. 
 
 3 Caspars. O'Brien, 15 Abb. (N.Y.) And see Votaw v. Diehl, 62 Iowa, 
 Pr. N. s. 402 ; "Wall v. "Williams, 11 676. 
 
 Ala. 826; Tomlin o. Hilyard, 43 111. 8 Conway v. Clinton, 1 Utah, 215; 
 
 300; Hogan v. Eeynolds, 8 Ala. 59; Cortland Co. o. Herkemir Co., 44 N. 
 
 Braman v. Bingham, 26 N. Y. 483. Y. 22. But see "Whetstone v. Bank 
 
 * "Willey D. Portsmouth, 35 N. H. at Montgomery, 9 Ala. 875. 
 303. 
 
394 EXAM1KATI0N-. [CHAP. XVIII. 
 
 and this is so even though the witness be a party to the suit,i 
 or the defendant in a criminal prosecution.^ 
 
 Thus, it has been held that a party may be asked whether, 
 in entering into a contract on which the action is based, he 
 relied upon the representations of the other party ; ^ the testi- 
 mony of an assignor may be taken as to his intent in making 
 the assignment ; * and on the issue whether a conveyance was 
 executed by the grantor with knowledge of its contents, she 
 may testify that she never intended to convey her land to 
 the grantee.^ 
 
 But it is held in Alabama, that where the intent is the 
 very question in issue, neither a party nor any other witness 
 can testify with what intent he did the act in question ; the 
 intent should be found by the jury from the attendant cir- 
 cumstances.^ So, also, in Maine, a party is not allowed to 
 prove by his own witness, what the purpose of the witness' 
 mind was on a former occasion.'^ And a witness cannot be 
 asked to state the " motives or intentions " of another person 
 in doing a given act.^ 
 
 § 240. Rule forbidding Leading Questions. — It is an ele- 
 mentary rule, that on the direct examination of a witness, 
 leading questions, i.e., questions indicating or suggesting the 
 answers the partj'^ wishes should be given, cannot be put.^ 
 This rule proceeds partly on the supposition that the witness 
 is favorable to the party who calls him. That party, in 
 preparing his case for trial, has a full opportunity of examin- 
 ing his witnesses beforehand, in private, and of producing on 
 the trial those only whose testimony he believes will serve 
 
 1 Shockey v. Mills, 71 Ind. 288 ; ^ Law v. Payson, 32 Me. 521. S. P., 
 More V. Deyoe, 22 Hun (N. Y.) 208. Palmer v. Piiikham, 3.3 Me. 32. 
 Contra as to an uncommunicated mo- * Peake v. Stout, 8 Ala. 647. S. P., 
 tive or intent. Burke v. State, 2 Ala. Green u. Akers, 55 Ga. 159. But 
 L. J. 313. And see also Ballard c. compare Weaver v. Lapsley, 42 Ala. 
 LockvTood, 1 Daly (N. Y.) 158. 601, which case seems to lean a little 
 
 2 Greer v. State, 53 Ind. 420. S. P., the other way. 
 
 White V. State, Id. 595 ; Kerrains u. ' Snyder v. Snyder, 6 Binn. (Pa.) 
 
 People, 60 N. Y. 221. 483; People v. Mather, 4 Wend. (N. 
 
 3 Berkey v. Judd, 22 Minn. 287. Y.) 229 ; Torrance ;;. Hurst, 1 Walk. 
 
 4 Watkins v. Wallace, 19 Mich. 57 ; (Miss.) 403; Stringfellow v. State, 26 
 Forbes v. Waller, 25 N. Y. 430. Miss. 157; Page u. Parker, 40 N. H. 
 
 s Perry v. Porter, 121 Mass. 522. 47 ; Able v. Sparks, 6 Te.x. 349 ; Mathis 
 
 6 Oxford Iron Co. v. Spadley, 51 v. Buford, 17 Tex. 152; United States 
 
 Ala. 171. V. Dickinson, 2 McLean (U. S.) 325; 
 
 Parkin v. Moon, 7 Car. & P. 408. 
 
§ 241.J EXAMli^^ATION-IN-CHIEF. 395 
 
 his own purposes; therefore the assumption that a witness 
 is favorable to the party calling him is well founded in fact. 
 The pernicious influence of such questions is most felt, and 
 most to be feared, when the object of an inquiry is to ascertain 
 the details of a conversation, admission, or agreement; and 
 more rigor is, in such cases, justified in confining the direct 
 examination to its appropriate rules.^ 
 
 But this, like many other rules of evidence, is not inflex- 
 ible, but may, under certain peculiar circumstances, be re- 
 laxed, or altogether abandoned, at the discretion of the pre- 
 siding judge. The exercise of this discretion cannot, ordi- 
 narilj', be appealed from ; ^ but when its effect is to deprive 
 the party of competent testimony, an appeal is allowable.^ 
 This discretion, however, should only be exercised in the 
 direction of allowing the questions where it appears essential 
 to promote justice,* and a clear abuse of it is ground for 
 reversal.^ 
 
 § 241. What Questions are Leading. — (1) In general. 
 Generally speaking, questions are objectionable as leading, 
 not only when they directly suggest the desired answer, but 
 also when, embodying a material fact, they admit of an an- 
 swer by a simple " yes," or " no," though neither the one nor 
 •the other is directly suggested.^ But it is a mistake to suppose 
 such only is a leading question, to which "yes " or " no " would 
 be a conclusive answer ; '' if any answer is plaiuty indicated, 
 the question is leading, and not the less so because pro- 
 pounded in the alternative, whether or not, etc.^ The objec- 
 
 1 Per Marcy, J., in People v. Cheeney v. Arnold, 18 Barb. (N. Y.) 
 
 Mather, 4 Wend. (N. Y.) 248. 434. S. P., Doran u. Mullen, 78 111. 
 
 Si Blevinsi). Pope, 7 Ala. 371; Don- 342; State v. Benner, 64 Me. 267. 
 
 nell V. Jones, 13 Ala. 490 ; Parmelee See also Birely v. Staley, 5 Gill & J. 
 
 V. Austin, 20 111. 35 ; State v. Lull, 37 (Md.) 432. 
 Me. 246 ; York v. Pease, 2 Gray 5 App. v. State, 90 Ind. 73. 
 (Mass.) 282; Green v. Gould, 3 Allen « United States v. Angell, 11 Ped. 
 
 (Mass.) 465; Smith u. Hutchings, 30 Rep. 34. But see Spear v. Eichard- 
 
 Mo. 380 ; Severance v. Carr, 43 N. H. son, 37 N. H. 23 ; McKeown v. Harvey, 
 
 65; Walker v. Dunspaugh, 20 N. Y. 40 Mich. 226. 
 
 170; Sears v. Shafer, 1 Barb. (N. Y.) ' People v. Mather, 4 Wend. (N. 
 
 408; Budlong v. Van Nostrand, Y.) 229, 247, 248; Weber v. Kings- 
 
 24 Id. 25; Barton v. Kane, 17 Wis. land, 8 Bosw. (N. Y.) 438, 439. 
 37. ^ State u. Johnson, 29 La. Ann. 
 
 ^ Gunter «. Watson, 4 Jones (N. 717 ; People i'. Mather, supra; Weber 
 
 C.) L. 455. S. P., Parsons v. Bridg- v. Kingsland, supra; Bartlett v. Hoyt, 
 
 ham, 34 Me. 240. .33 N. H. 151. 
 
 * Williams v. Jarrot, 6 111. 120; 
 
396 EXAMINATION. [CHAP. XVIII. 
 
 tion is, that tlie evidence so drawn from the witness, is not 
 his genuine unassisted testimony, but a statement artfully 
 contrived, shaped, and colored by professional skill, with a 
 complete knowledge of the facts which the party seeks to 
 establish. If such a mode of examination were allowed, it 
 must frequently happen that a witness would not state the 
 whole of a transaction, but a part only would be elicited, and 
 that to serve a particular purpose ; the chance also of detect- 
 ing discrepancies in false or erroneous testimony would be 
 much diminished. Nor would these inconveniences be en- 
 tirely removed by the power of cross-examination, which, as 
 it must often be conducted without any previous knowledge 
 of the answers to be given by the witness, is not a counter- 
 balance to the facility afforded in the examination-in-chief, 
 of presenting a selected and concerted portion only of the 
 facts.i 
 
 (2) Questions directing witness^ attention to subject of in- 
 quiry, or fact overlooked by witness. Where the object of the 
 counsel conducting the direct examination of his own witness, 
 is merely to call back or direct the latter's attention to the 
 particular subject of the inquiry, a question put with that 
 end in view is not objectionable as "leading, suggestive, or 
 assuming what is not proved," because couched in the lan- 
 guage of a pleading in the case.^ Thus, where a witness 
 testifies as to work and labor done, and money received, for 
 which plaintiff is seeking to recover, it is competent to inquire 
 whether other work had been done or money received. Such 
 a question, though it directs the attention of the witness that 
 he may state the facts fully, canriot be said to be leading.^ 
 
 So, also, where an omission is caused by want of memory, 
 a suggestion may be permitted to assist it. Thus, where a 
 witness called to prove the partnership of the plaintiff's, 
 could not, at the moment, recall the individual names of the 
 several partners, he was allowed to be asked whether certain 
 specified persons were members of the firm.* This practice 
 
 1 2 Phil. Ev. *889. text, see Lowe v. Lowe, 40 Iowa, 220; 
 
 2 Shields o. Guffey, 9 Iowa, 322. Long v. Steiger, 8 Tex. 460. 
 
 But a question referring the witness ^ Strawbridge v. Spann, 8 Ala. 
 
 to a previous deposition by him in the 820. S. P., Matliis v. Buford, 17 Tex. 
 
 same cause, and asking him if his an- 152; Carlyle v. Plumer, 11 Wis. 96. 
 
 swers therein were true, is leading See also note 575 in 2 Phil. Ev. *890. 
 
 an! inadmissible. Trammell v. Mc- * Acerro v. Petroni, 1 Stark. 100. 
 
 Dade, 29 Tex. 360. In support of the S. P., Huckins v. People's Ins. Co., 
 
§ 241.J 
 
 EXAMINATION-IX-CHIEF. 
 
 397 
 
 is analogous to that of refreshing the memory by reference to 
 some writing, which will be hereafter considered.^ 
 
 (3) Introductory questions. Questions of a merely intro- 
 ductory character, and which, whether answered in the af- 
 firmative or negative, would not be conclusive on any of the 
 points ia the case, are not liable to objection as leading. 
 If it were not allowed to approach the points in issue by such 
 questions, the examination of witnesses would run to an im- 
 moderate length. For example, if two defendants are charged 
 as partners, a witness may be properly asked whether the 
 one defendant has interfered in the business of the other.^ 
 And where the identification of the person of a prisoner is 
 necessary, a witness may be asked whether the person pointed 
 out to him is the person in question.^ 
 
 31 N. H. 238; O'Hagau v. Dillon, 76 
 N. y. 170. 
 
 1 Infra, Chap. XXIV. 
 
 2 Nicholls V. Dowding, 1 Stark. 81 . 
 
 3 R. V. Watson, 2 Stark. 128 ; R. v. 
 B^renger, Id. 129 n. S. P., Long v. 
 Steiger, 8 Tex. 460 ; Sadler v. Murrah, 
 3 How. (Miss.) 195; People v. Mather, 
 i Wend. (N. Y.) 229. 
 
 In applying the foregoing principles 
 stated in the text, the courts have 
 held the following questions to be 
 leading and inadmissible : — 
 
 " Whether witness [the clerk of A] 
 was in the habit of acting by A's con- 
 sent and with his approbation to every 
 extent, in reference to buying gooda 
 etc., in A's absence ? " Lee v. Tinges, 
 7 Md. 215. 
 
 "Whether or not defendant ad- 
 mitted, in conversation, that plaintiH 
 had not received his portion of the es- 
 tate ? " McLean v. Thorp, 3 Mo. 315. 
 
 " Did you make any agreement at 
 that time?" Dudley ;,•. Elkins, 39 
 N. H. 78. 
 
 "Did the defendant state to you, 
 and in your presence, on the morning 
 and just before he sent you for said 
 sheep, that it was not his, and not to 
 bring it over ? " Luttrell v. State, 14 
 Tex. App. 147. 
 
 " State whether or not you exam- 
 ined the horse-tracks towards Cro- 
 gan's," and " State whether or not you 
 had any difficulty in following the 
 
 tracks." Hopper v. Commonwealth, 
 6 Gratt. (Va.) 084. 
 
 And in a rape case, the following 
 questions asked of the prosecutrix on 
 her direct examination were excluded 
 as leading : — 
 
 " Did the prisoner then, or at any 
 subsequent time, say anything to you 
 in relation to this matter to dissuade 
 you from disclosing it? State when, 
 where, and what he said. Did the 
 prisoner, at any time subsequent to 
 the transaction, say anything to you 
 about what judgment the laws of Mis- 
 sissippi would inflict on you, or him, 
 or both ? State it all. If the pris- 
 oner, in any of his antecedent conver- 
 sations, offered property or any other 
 advancement to you, in order to at- 
 tach you to him, say so." Turney v. 
 State, 16 Miss. 104. 
 
 The following questions have been 
 held not objectionable as leading : — 
 
 " Do you know any circumstances 
 which will show that the defendant 
 knew his son went to school in the 
 year 1854 1 " Floyd v. State, 30 Ala. 
 511. 
 
 "Do you know whether A B was 
 ever prosecuted for stealing a gray 
 stud horse ; if so, by whom and where ?" 
 Sexton V. Brock, 15 Ark. 345. ' 
 
 "Whom did you see watcliing 
 around the house ? " People v. De 
 Witt, 10 Pac. Rep. 212. 
 
 "Did he court lier'! " [Breach of 
 
398 
 
 EXAMINATIOH". 
 
 [chap. XVIII. 
 
 § 242. When one may lead his own Witness. — (1) Uiiiuill- 
 ing or hostile ivitness. Where the witness appears to he 
 hostile to the party calling him, or in the interest of the op- 
 posite party, or unwilling to testify fully, the court is clothed 
 with a discretion to relax the rule forbidding leading ques- 
 tions, and will often allow the direct examination to assume 
 something of the form of cross-examination, by permitting 
 the putting of leading questions.^ But this is solely a matter 
 of discretion, and no exception will lie to the refusal of the 
 court to allow a party to lead his own witness on discovering 
 him to be the agent of his adversary.^ 
 
 promise case.] Greenup v. Stoker, 8 
 111. 202. 
 
 " Whether or not testator's insan- 
 ity took the form of dislike to his rel- 
 atives, and friends 1 " Pelamourges v. 
 Clark, 9 Iowa, 1. 
 
 " What have you seen hy the way 
 of intoxicating liquors being sold, be- 
 tween July 1, 1860, and April 15, 
 1861, in that building V State v. 
 Schilling, 14 Iowa, 455. 
 
 "Did you notice during the spring 
 any weakening of A's mind ? " and 
 " In your opinion, during the spring 
 of 1877, had A's mind weakened? " 
 Fraser v. Jennison, 42 Mich. 206. 
 
 " What was the nature of the con- 
 versation between said parties, and 
 were they in earnest, or was the talk 
 a matter of joke between them'? " 
 Willis V. Quimby, 31 N. H. 485. 
 
 "Did you do anything to sell or 
 dispose of the clapboards other than 
 to say that if you could sell them you 
 would indorse them on the note, or 
 did you do anything to measure or 
 surrey them ? " Hale v. Taylor, 45 
 N. H. 405. 
 
 " For whom did your husband do 
 what business he did after you took 
 the deed ? " Knapp v. Smith, 27 N. 
 Y. 277. 
 
 " For whom did you purchase that 
 judgment ? " and " In your negotia- 
 tion with the (judgment creditor) for 
 whom were you acting ? " Games v. 
 Piatt, 6 Robt. (N. Y.) 270. 
 
 "Did Peter Ehoades tell you where 
 that corner was ? " Kemmerer v. Ed- 
 elman, 23 Pa. St. 148. 
 
 " Was it or was it not made known 
 to the board of directors, at any time, 
 by J. W. or any one else, that the 
 property which J. W. offered to mort- 
 gage had been previously deeded by 
 himself and wife to any one else ? " 
 and " Had you or not, as a director, 
 any knowledge that W. and wife had 
 made a deed for the property to any 
 one before he mortgaged it to the 
 bank ? " Wilson c. McCuUough, 23 
 Pa. St. 440. 
 
 1 E. i). Murphy, 8 Car. & P. 306; 
 Bastin v. Carew, Ry. & Moo. 127 ; R. 
 0. Chapman, 8 Car. & P. 558 ; Brad- 
 shaw V. Coombs, 102 111. 428 ; Com- 
 monwealth V. Thrasher, 11 Gray 
 (Mass.) 57 ; People v. Mather, 4 
 Wend. (N. Y.) 220, 257; Bank of 
 Northern Liberties v. Davis, 6 Watts 
 & S. (Pa.) 285; Towns v. Alford, 2 
 Ala. 378. 
 
 2 Wells V. Jackson &c. Manuf. 
 Co., 48 N. H. 491, citing People v. 
 Mather, supra. Contra, Parsons i\ 
 Bridgham, 34 Me. 240; Steene v. 
 Aylesworth, 18 Conn. 244, where it is 
 said the exclusion of such questions 
 will be reviewed in a clear case. 
 
 The exception to the rule is al- 
 lowed on the general ground of the 
 witness appearing unwilling to depose 
 in favor of the party by whom he is 
 adduced. This unwillingness is to be 
 decided by the judge, and commonly 
 according to his impression of the 
 witness' demeanor at the trial. The 
 situation of the witness, and the in- 
 ducements which he may have for 
 withholding a fair account, are also 
 
§ 242.] EXAMIXAT10N-:X-CHIEF. 399 
 
 (2) Leading for the purpose of contradicting a former wit- 
 ness. How far leading questions may be put in an examina- 
 tion-in-chief, when the object is to prove that another witness, 
 examined on the opposite side, has, on some former occasion, 
 made a different and contradictory statement, seems somewhat 
 doubtful. If, for example, a witness, on cross-examination, 
 were to deny that he ever gave a different account of the 
 transaction, or that, in conversing upon the subject with a 
 third person, he used certain words or expressions imputed 
 to him, it is a question, says Mr. Phillips, whether it would 
 be competent to the counsel in examining the third person, 
 in chief as his witness, for the purpose of contradicting the 
 former witness, to ask him, in the first instance, whether the 
 former witness, in conversing with him, said so and so, or 
 used such and such expressions. This form of putting the 
 question is certainly not uncommon, and frequently passes 
 without objection. But a very little consideration will show 
 that such a leading question is irregular.^ The more proper 
 course " would be to inquire generally, what the former wit- 
 ness said, or what account he gave, relative to the transaction 
 in question — thus leaving him, as in fairness he ought to be 
 left, to the use of his own memory. If the witness has a dis- 
 tinct recollection of the conversation, and of the representa- 
 tion made by the other person, whose account is now dis- 
 puted, he requires only to have his attention directed to the 
 subject, to enable him to speak what he knows ; if he has not 
 that distinct recollection, he is ill qualified to contradict the 
 other witness, as to the expressions supposed to have been 
 used by him ; in other words, he is incompetent for the pur- 
 very proper circumstances to be taken than the admission extorted from an 
 into consideration in forming this de- unwilling witness; and it would ma- 
 cision. A son will not be very for- terially prejudice the interests of jus- 
 ward in stating the misconduct of his tice, if a witness of this description 
 father, of which he has been the only could place the party producing him 
 witness ; a servant will not, in an ac- in the dilemma of either abandoning 
 tion against his master, be very ready the benefit of the truth, which has 
 to acknowledge the negligence com- been with difficulty obtained, or adopt- 
 mitted by himself. Perhaps the prin- ing all the falsehood which the wit- 
 ciple which requires a party to abide ness may have the iniquity to mix up 
 by the whole of what his own witness with it. 2 Phil. Ev. *892 n. And see 
 has sworn, or wholly to abandon it, is. Moody v. Rowell, 17 Pick. (Mass.) 
 in this case, subject to an exception ; 408. 
 
 for there certainly is no testimony, the ^ 2 Phil. Ev. *89.3. See also Snyder 
 
 veracity of which is less suspicious, u. Snyder, 6 Binn. (Pa.) 483. 
 
400 EXAlSnNATIOIS". [chap. XVIII. 
 
 pose for -which he is called. The plea of necessity, therefore, 
 altogether fails. But the principal objection to such leading 
 questions appears to be, that they suggest the desired answer 
 so broadly and obviously, that a witness of the dullest intel- 
 lect and weakest memory can hardly fail to take the hint, 
 and may easily shape his evidence, if he is so disposed, as 
 may best serve the interest and wishes of the party who calls 
 him. In effect, the question puts into the mouth of the wit- 
 ness the very words which he is to echo back either in the 
 affirmative or in the negative — thus supplying a forgetful 
 witness with a false memory, and an artful witness with a 
 prompt and concerted answer. Is there, then, anything in 
 the nature of this particular case which ought to exempt it 
 from the general rule applicable to examinations-in-chief? 
 On the contrary, if there is any case in which that general 
 rule against leading ought to be strictly maintained, it is the 
 one now under consideration, where a witness is called for 
 the purpose of proving the account given by another witness 
 to be inconsistent with some former statement, supposed to 
 have been made by him. Whether the question at issue 
 between the two witnesses is a question of credit, or whether 
 it is to be considered rather as a question of mere memorj^ 
 leading is, in either point of view, equally objectionable. 
 
 " If it is a question of memory, the only fair way of trying 
 it is by allowing the witness to speak for himself un- 
 prompted, as his own memory may suggest. If the question 
 is one of credit, then it is undoubtedly due to the witness 
 whose veracity is impeached that the contradictory statement, 
 supposed to have been made by him, should be distinctly 
 proved, without the aid of leading and without any undue 
 influence. Upon the whole, therefore, the most unexcep- 
 tionable and proper course appears to be, to ask the witness, 
 who is called to prove a contradictory statement made by 
 another witness, what that other witness said relative to the 
 transaction in question, and not in the first instance to ask, 
 in the leading form, whether he said so and so." ^ 
 
 1 2 Phil.Ev.*893; Evans y. Greene, r. State, 28 Ga. 395. But see Potter 
 
 21 Mo. 170; Harrington u. Lincoln, 2 v. Bissell, 3 Lans. (N. Y.) 205; and 
 
 Gray (Mass.) 133; Leavyr. Dearborn, Itounds v. State, 57 Wis. 45, where 
 
 19 N. H. 851 ; Cornelius l: Common- leading questions are held admissible 
 
 wealth, 15 B. Mon. (Ky.) 539; Allen in such cases. 
 
§ 243.] EXAMINATION-IN-CHIEF. 401 
 
 § 243. Propriety and Sufficiency of Witness' Answers. — 
 111 responding to the questions put to him, the witness should 
 state /am, not conclusions — it is the province of the jury, 
 or of the court, not of the witness, to draw conclusions. 
 Thus, a witness will not be permitted to say that one of two 
 persons is a tenant of the other, that being a conclusion of 
 law, but will be required to state the facts out of which the 
 alleged relation aiises.^ So, he cannot state that a de- 
 fendant is not guilty of the offence charged; he can only 
 state facts known to him, from which the jury can judge of 
 the prisoner's guilt.^ But there are many exceptions to this 
 rule : thus, it is held, that a witness may state whether or 
 not he is a member of a certain firm, and whether that firm 
 owned certain goods ; ^ whether certain persons, at a stated 
 time, entered into a partnership to run a stage line ;* whether 
 a claim referred to was barred by the statute of limitations ; ^ 
 whether a bank was in a solvent condition at a given time ; " 
 or whether a party had possession of certain real estate at a 
 stated time.^ So, also, a witness may state a legal conclu- 
 sion, if the opposite party consents, and failure to object to 
 such an answer has been deemed equivalent to a consent ; * 
 and he may testify to the result of the items of an account, 
 instead of the items themselves, unless objection is made to 
 such form of testifying.^ 
 
 In such instances as those referred to, the evidence has 
 been admitted, either because the answer of the witness, 
 though involving a conclusion of law, related to an indepen- 
 dent fact, as well, or because abundant opportunity was af- 
 forded to get at the facts upon which the witness founded 
 his conclusion by means of the cross-examination — the latter 
 reason for departure from the rule seeming to be less satis- 
 factory than the former. 
 
 The most important seeming exception to the rule we are 
 considering exists where a witness is called to testify as to a 
 conversation previously held between himself and another, 
 
 > Parker v. Haggerty, 1 Ala. 632. ^ Bank of United States v. Mac- 
 
 2 Garret v. State, 6 Mo. 1. alester, 9 Pa. St. 475. 
 
 MValshv.Kelly, 42Barb. (N. Y.) 'Parsons o. Brown, 15 Barb. 
 
 98. (N. Y.) 590. 
 
 * Anderson v. Snow, 9 Ala. 247. » Sterne v. State, 20 Ala. 43. 
 
 5 Foster v. Spear, 22 Tex. 226. » Clark u. Gridley, 35 Cal. 398 ; 
 
 Straw-bridge v. Spann, 8 Ala. 820. 
 
402 EXAMINATION. [CHAP. XVIII. 
 
 or between third persons, and overheard by him. In such 
 cases, according to the clear weight of authority, tire rule is, 
 that while the witness should give the words used, if able so 
 to do, yet a general answer embodying the substance or pur- 
 port is not objectionable where that is all that he can recollect.^ 
 If he cannot state the precise terms used by the parties in 
 making an agreement overheard by him, he may state what 
 he understood the contract to have been from what he heard 
 them say.^ In other words, being unable to recollect the 
 precise language used in the conversation overheard, he may 
 testify to the ideas thereby convej'cd to his mind, and the 
 jury must pass upon the weight of the testimony.^ But to 
 make a witness' " impression " admissible, it must be shown 
 to be derived from recollection;* and there are well-consid- 
 ered adjudications that refuse to allow a witness to state the 
 impression left on his mind by a conversation overheard by 
 him, or his inferences derived therefrom.^ 
 
 Another well-settled rule is that the answer of the witness 
 must be responsive to the question put to him; i.e., it must 
 be direct and pertinent to the question put, or it will be 
 struck out on motion.^ If the recollection of the witness is 
 
 1 Chambers v. Hill, 34 Mich. 523 ; Foster (16 Ohio, 88) it is laid down 
 Pope V. Machias &c. Co., 52 Me. -535; that a witness, in narrating a conver- 
 Buchanan o. Atchison, 39 Mo. 503; sation held between himself and an- 
 Chaffee v. Cox, 1 Hilt. (N. Y.) 78 ; other, cannot be permitted to testify 
 Kittredgo v, Eussell, 114 Mass. 67. what he meant by the questions asked 
 
 2 Eaton I'. Rice, 8 N. H. 378. by himself ; but his meaning must be 
 ^ State V. Donovan, 61 Iowa, 278 ; gathered from the import of his Ian- 
 Seymour V. Harvey, 11 Conn. 275; guage, without the aid of a subse- 
 Moody V. Davis, 10 Ga. 403; Maxwell quent explanation of his own mean- 
 V. Warner, 11 N. H. 568. See also ing. 
 
 Lockett V. Mims, 27 Ga. 207. " Guild v. Aller, 2 Harr. (N. J.) 310. 
 
 * Rounds V. McCorniick, 11 111. The answers of witnesses, if practi- 
 
 App. 220. cable, should amount to mere admis- 
 
 ^ Crews V. Threadgill, 35 Ala. 334. sions or denials. Everything addi- 
 
 In Helm u. Cantrell (59 111. 525) tional will be stricken out except such 
 
 it is held that witnesses siiould state statements of fact as are explanatory 
 
 facts, and not mere inferences or con- of, and "closely linked" with, the 
 
 elusions; and where a witness testify- questions propounded. McLear v. 
 
 ing in respect to the alleged admis- Succession of Hunsicker, 29 La. Ann. 
 
 sions of another is unable to give the 539. S. P., Ryan v. People, 79 N. Y. 
 
 words, language, or the substance of 593. As to what answers are or are 
 
 it, he should not testify at all ; he not responsive, within this rule, see 
 
 cannot be permitted to give a mere Smith v. Gaffard, 33 Ala. 168 ; Rome 
 
 conclusion of his own, when the con- R. R. Co. c. Sullivan, 14 Ga. 277; 
 
 versation or declarations from which Streeler v. Sawyer, 28 N. H. 555; 
 
 the conclusion is drawn have passed Shultz l\ State, 5 Tex. App. 390. 
 from his mind. And in Haywood v. 
 
§ 244. J EXAMINATION-IN-CHIEF. 403 
 
 faulty, however, or not absolute and complete, he may, ordi- 
 narily, testify to the best of his recollection, or belief ; i.e., as 
 he thinks the fact to be.^ The witness may give the reasons 
 of his belief in such cases,^ and state why certain facts were 
 impressed upon his memory ;3 but he will not be permitted, 
 under pretence of giving reasons for his recollection, to state 
 facts which are material to the issue, and not admissible by 
 the rules of evidence.* 
 
 § 244. Objectionf3 to Questions or Answers. — If no objec- 
 tion is made to an improper question, or if the specific objec- 
 tion taken is not tenable, the admission of tlie answer is not 
 error ;^ but the failure of counsel to object to one improper 
 question to which an unsatisfactory answer was given does 
 not preclude him from objecting to a substantial reiteration 
 of the same question.^ As respects the form of objections, it 
 may be said that they should be specific, rather than general, 
 i.e., should show- the ground or grounds of objection ; for a 
 general objection to a question is insufficient where, by a 
 statement of the ground of objection, it might be obviated 
 by changing the form of the question.'^ 
 
 Objections to questions should be made at the time they 
 are put, or they will generally be regarded as waived ; ^ and 
 this rule is particularly applicable where the objection is that 
 the question is leading,^ in which case the objection must be 
 specific, also.^** In passing upon this objection the court is 
 
 1 Rhode V. Louthain, 8 Blackf. ^ Harris v. Panama R. R. Co., 5 
 (Ind.) 413 ; Swinney v. Booth, 28 Bosw. (N. Y.) 312 ; State v. Nutting, 
 Tex. 113. The "impressions" of a 39 Me. 359; Carter k. Beals, 44 N. 11, 
 witness, if it is understood that the 408. 
 
 fact is impressed upon his memory, ^ Sanchez v. People, 22 N. Y. 147. 
 but that his recollection does not rise ' Dunning v. Rankin, 19 Cal. 640 ; 
 to positive assurance, are admissible State v. Flanders, 38 N. H. 324 ; Tat- 
 in evidence for the consideration of tersall v. Hass, 1 Hilt. (N. Y.) 56; 
 the jury; but, if they are not derived Hunt v. Hohoken &c. Co., Id. 161. 
 from a recollection of the fact, and S. P., Matter of Crosby, 81 N. Y. 242 ; 
 are so slight that they may have been Buttrick v. Oilman, 22 Wis. 356. 
 derived from the information of ^ Goldsmith v. Picard, 27 Ala. 142 ; 
 others, or some unwarrantable deduc- Scott v. Jester, 13 Ark. 437 ; Sims < . 
 tion of the mind, they are not admis- Givan, 2 Blackf. (Ind.) 461. 
 sible. Clark v. Bigelow, 16 Me. 246 ; s> Towns v. Alford, 2 Ala. 378 ; 
 Humphreus v. Parker, 52 Me. 502; Memphis &c. R. R. Co. v. Bibb, 1 
 State V. Flanders, 38 N. H. 324. Ala. Sel. Cas. 630; Morissey v. Peo- 
 
 2 Thomas v. State, 27 Ga. 287; pie, 11 Mich. 327; People r. Lohman, 
 Cherry v. State, 68 Ala. 29. 2 Barb. (N. Y.) 216 ; Pearson v. Fiske, 
 
 3 Bill V. Troy, 35 Ala, 184. 2 Hilt. (N. Y.) 146. 
 
 * McBride v. Cicotte, 4 Mich. 478. i" Garborough v. Moss, 9 Ala. 382. 
 
404 EXAMINATION. [CHAP. XVIII. 
 
 clothed with considerable discretion, to be exercised in refer- 
 ence to the character of the itivestigation, the condition and 
 disposition of the witness, and the peculiar circumstances 
 attending the examination.^ If the objection is overruled, 
 the point decided is that the question is not leading, and an 
 exception will lie ; ^ but if the question is prejudicial to the 
 party asking it, the other party cannot object to it as 
 leading. 3 
 
 As to the effect of an objection to a question, — its extent, 
 and what is covered by it, — the highest judicial authority in 
 this country has decided that when a question put to a wit- 
 ness is in itself unobjectionable, but the answer goes beyond 
 what is called for, and is improper or incompetent testimonj', 
 an objection to the question will not extend to the answer. 
 Special objection must be taken in such a case to the answer,* 
 when it will become the duty of the court to exclude so 
 much of the answer as is improper, from the jury.^ But 
 where several questions pertaining to the same point are 
 asked in immediate succession, and an objection to the first 
 one, which is merely preliminary to the others, is improperly 
 overruled, the objection will not be limited to the first ques- 
 tion, but will be deemed to cover the others which sprang 
 naturally from it.^ 
 
 Where an objection to a question cannot be sustained 
 without assuming a fact about which there is a conflict of 
 testimony, the objection is properly overruled.^ So, also, 
 the objection is not tenable where the witness' answer, what- 
 ever it may be, cannot prejudice the objector,^ or where his 
 answer is legal testimony for the party calling him.^ 
 
 1 Snyder v. Snyder, 50 Ind. 492. ^ Morgan v. Winston, 2 Swan 
 
 2 Steer u. Little, 44 N. H. 613. (Tenn.) 472; Putnam t. Ritchie, 6 
 » Cochran v. Miller, 13 Iowa, 128. Paige (N. Y.) 390. 
 
 « Gould V. Day, 94 U. S. 405. In " Barton v. Kane, 17 Wis. 37. 
 
 this case a witness was asked whether '' Adams v. Capron, 21 Md. 186. 
 he could form a judgment of the ^ Matter of Crosby, 81 N. Y. 242. 
 
 quantity of timber which had been on ' Miller v. Houcke, 2 111. 501. As 
 
 certain pine-timber lands, from the to objecting to the testimony of one's 
 
 stumps that remained, and he stated own witness, see Steinheimer v. Cole- 
 
 in his answer what in his judgment man, 39 6a. 119 ; Allison v. Hubbell, 
 
 the quantity was. S. P., Barnes u. 17 Ind. 559. 
 Ingalls, 39 Ala. 193. 
 
CHAPTER XIX. 
 
 CEOSS-BXAMINATION. 
 
 § 245. Extent of the Right to cross-examine, 
 
 § 246. How far limited by the Direct Examination. 
 
 § 247. How far limited to Relevancy to the Issue. 
 
 § 248. What Questions are Proper. 
 
 § 249. Leading Questions. 
 
 § 250. Sufficiency and Effect of Witness' Answers. 
 
 § 251. Cross-examination of Defendants in Criminal Cases. 
 
 § 252. Cross-examination of Accomplices and Persons jointly indicted. 
 
 § 245. Extent of the Right to cross-examine. — (1) In gen-i 
 eral. After the party calling a witness has concluded the 
 examination-in-chief, the opposite party has a right to cross- 
 examine the witness, as a matter of course, and without first 
 obtaining the permission of the court ; and a wider latitude 
 of questioning is allowed than upon the direct examination, 
 the object being to correct errors, concealments, and mis- 
 statements therein.! Th.e, cross-examiner is not ordinarily 
 required to disclose what he expects to prove.^ Where one 
 party is called as a witness by the opposite party, the witness' 
 own counsel may cross-examine him ; ^ and if a party who 
 supports his own motion by his affidavit or testimony refuses 
 to be cross-examined, the court may strike out his testimonj'.* 
 Eut a party is not bound to offer an incompetent witness, in 
 order that his adversary may waive the objection and cross- 
 examine him ; ^ or to detain a witness for the convenience of 
 his adversary who fails to claim or reserve the right to cross- 
 examine at the proper time.^ 
 
 Sometimes cross-examination furnishes the only remedy 
 within a party's reach by which to correct the effect of an 
 
 ^ See Anderson v. Russell, 34 Mich. * Meyer v. Lent, 16 Barb. (N. Y.) 
 
 109 ; Anderson v. Walter, 34 Mich. 538 ; Howard v. Chamberlain, 64 Ga. 
 
 113; Jacobson v. Metzger, 35 Mich. 684. 
 103. 6 Crowell v. Kirk, 3 Dev. (N. C.) 
 
 2 Martin v. Elden, 32 Ohio St. L. 355. 
 282. 6 Sheffield v. Rochester &c. R. R. 
 
 ^ Teel V. Byrne, 4 Zab. (N. J.) Co., 21 Barb. (N. Y.) 339. 
 631. 
 
406 EXAMIJTATION. [CHAP. XIX. 
 
 error — as when a witness testifies to acts which did not 
 happen in his presence : in such a case Iiis testimony cannot 
 be stricken out : the only remedy is to show, by cross-exam- 
 ination, that the witness had not sufficient opportunity of 
 knowing what lae testified.^ 
 
 Where several attorneys are employed on the same side, 
 there is no rule requiring any particular one of them to con- 
 duct the cross-examination, or that requires the same attor- 
 ney who took part in the examination-in-chief to conduct the 
 cross-exam in ation .2 
 
 (2) Effect of death of witness after direct, hut hefore cross- 
 examination. The death of a witness after his examination- 
 in-chief, but before an opportunity had been afforded to 
 cross-examine him, has been held to render his testimony-in- 
 chief inadmissible.^ While this is the rule in actions of a 
 legal nature, in equity, the inadmissibility of the diaect 
 testimony of such a witness is a question confided to the 
 discretion of the court, in view of all the circumstances of 
 the case.* 
 
 (3) Discretionary powers of the court. It is a rule of very 
 general application, that the extent to which a witness may 
 be cross-examined is ordinarily a matter of discretion with the 
 presiding judge, to which no exception lies.^ There is no 
 uniform rule governing the matter, greater liberties being 
 allowed when the witness shows partisanship than when he 
 evinces impartiality ; and it requires a strong case to justify 
 a reversal for the allowance of too much latitude on the part 
 of the cross-examiner.^ This discretion particularly extends 
 to the range of a cross-examination in disparagement of the 
 character of a witness ; " and this, without putting the witness 
 to his claim of privilege.^ The court may postpone the 
 
 1 Rushmore v. Hall, 12 Abb. (N. lace v. Taunton Street R. R. Co., 119 
 Y.) Pr. 420. Mass. 91 ; Brumagim v. Bradshaw, 39 
 
 2 Olive !;. State, 11 Neb. 1. Cal. 24, 38; Thornton o. Hook, 36 
 8 Kissam v. Forrest, 25 Wend. Cal. 223 ; Stewart v. People, 23 Mich. 
 
 (N. Y.) 051 ; Sperry v. Moore, 42 63 ; Arnold v. Nye, Id. 286. 
 
 Mich. 353. f Ingram v. State, 67 Ala. 67. 
 
 * Gass V. Stinson, 3 Sumn. (U. S.) ' Gutterson v. Morse, 68 N. H. 
 
 104-108; 1 Greenl. Ev. (14 Ed.) 165. 
 
 § 554, and cases there cited. ^ Qf_ Western &c. Co. v. Loomis, 
 
 5 Commonwealth u. Lyden, 113 32 N. Y. 127. Thus it is within the 
 
 Mass. 452; Knight u. Cunnington, discretion of the court to permit coun- 
 
 13 N. Y. Supreme Court, 100; Wal- scl, on cross-examination, to ask a 
 
§ 246.] CROSS-EXAMINATIOK. 407 
 
 cross-examination to a subsequent stage of the cause,' or 
 permit a party after resting his case to cross-examine his 
 adversary's witnesses, or call others.^ Wliere a witness has 
 betrayed bias, partiality, or corruption, this discretionary 
 power will be exercised in extending the latitude of the 
 questioner, and a most searching cross-examination will be 
 allowed.^ 
 
 § 246. How far limited by the Direct Examination. — A 
 preliminary question frequently arises as to whether the wit- 
 ness has so far given testimony-in-chief as to entitle the oppo- 
 site party to cross-examine him. If he is merely called to 
 produce a paper which is to be proved by another witness, 
 he need not be sworn, and if not sworn, he cannot be cross- 
 examined.* If, however, the witness is sworn and is compe- 
 tent, the rule in England is, that the adverse party has the 
 right to cross-examine him, even though the party calling 
 him does not see fit to examine him in chief ;^ unless he is 
 sworn by mistake, and the mistake is discovered before any 
 questions are put to him;^ or unless his direct examination 
 is stopped by the court after an immaterial question has 
 been put to him.^ 
 
 So, if a witness called merely to prove the execution of a 
 written instrument is sworn and examined to that extent 
 only, — however formal and brief his testimony may be, — this, 
 in some jurisdictions, makes him a witness for all purposes, 
 and he may be cross-examined on the whole case,^ while 
 
 witness whether he has not sworn ^ Eex v. Brooke, 2 Stark. 472 ; 
 falsely in a particular suit, or on some Phillips v. Earner, 1 Esp. 357; Dick- 
 occasion, but not whether third per- inson v. Shee, 4 Esp. 67 ; Reg. r. 
 sons have accused him of swearing Murpliy, 1 Armst. M. & 0. 204 ; Mor- 
 falsely. Hannah v. McKellip, 49 gan v. Bridges, 2 Stark. 314. Contra, 
 Barb. (N. Y.) 342. But see Elliott see Austin v. State, 14 Ark. 555. 
 V. Boyles, 31 Pa. St. 65. 6 Clifford v. Hunter, 3 Car. & P. 
 
 1 Campan o. Dewey, 9 Mich. 381. 16 ; Rush v. Smith, 1 Cronip. M. & 
 
 2 Young V. Bennett, 5 111. 43. R. PI; Wood v. Mackinson, 2 Man. 
 8 People u. Long, 50 Mich. 249 ; & P. 273. 
 
 He Carrnichael, 36 Ala. 514; Floyd f. ' Creevy f. Carr, 7 Car. & P. 64. 
 
 Wallace, 31 Ga. 688. See also State s Morgan v, Bridges, 2 Stark. 314; 
 
 V. Adams, 14 La. Ann. 620. Dawson v. Callaway, 18 Ga. 573 ; 
 
 * Davis V. Dale, Moo. & M. 515 ; Lunday v. Thomas, 26 Ga. 537 ; Aiken 
 
 Perry v. Gibson, 1 Ad. & E. 48; Sum- v. Cato, 23 Ga. 154; Blackington v. 
 
 mers t-. Moseley, 2 Car. & M. 477 ; Johnson, 126 Mass. 21 ; Bulen v. 
 
 Rush V. Smith, 1 Cromp. M. & R. 94; Granger (il/M.) 25 N. W. Rep. 188; 
 
 Read v. James, 1 Stark. 132 ; R; v. Lamprey v. Munch, 21 Minn. 379 ; 
 
 Murlis, Moo. & M. 515; Simpson u. Page v. Kunkey, 6 Mo. 4.33; Brown 
 
 Smith, Nott. Summ. Ass. 1822, MS. v. Burrus, 8 Mo. 26; Butterworth v. 
 
408 
 
 EXAMINATION. 
 
 [chap. XIX. 
 
 in other jurisdictions the contrary doctrine obtains.^ In this 
 country, the weight of authority undoubtedly is, that the 
 right to cross-examine a witness is limited to matters stated 
 by him in his direct examination ; ^ or as the rule has been 
 well expressed, a witness cannot upon cross-examination be 
 questioned with regard to a matter which does not tend to 
 impeach, rebut, explain, modify, or in any manner qualify 
 anything he has testified to on his examination-in-chief.^ 
 But the cross-examination ought to be allowed a free range 
 if kept within the subject-matter of the direct testimony of 
 the witness,* especially where the witness is a party, or un- 
 willing.^ Thus, it has been frequently held that where a 
 witness has testified, on the direct, to a part of a conversa- 
 tion, the cross-examiner may require him to state the whole 
 of it ; ^ so, where a witness has testified, on the direct, to a 
 part of another witness' testimony in a former trial, the cross- 
 
 Pecare, 8 Bosw. (N. Y.) 671 ; Linsley 
 V. Lovely, 26 Vt. 123. See also 
 Moody V. Rowell, 17 Pick. (Mass.) 
 490, 498; Beal c. Nichols, 2 Gray 
 (Mass.) 262; Jackson v. Varick, 7 
 Cow. (N. Y.) 238; Fulton Bank v. 
 Stafford, 2 Wend. (N. Y.) 483; Dut- 
 lon D, Woodman, 9 Cusli. (Mass.) 
 255 ; Wentworth v. Crawford, 11 Tex. 
 127. 
 
 1 Harrison v. Eowan, 3 Wash. 
 (U. S.) 580; McFadden v. Mitchell, 
 01 Cal. 148 ; EUmaker v. Buckley, 16 
 S. & II. (Pa.) 77 ; Farmer's Bank v. 
 Strohecker, 9 Watts (Pa.) 237. S. P., 
 Gale V. People, 26 Mich. 157; Wilson 
 u. Wagar, Id. 452 ; Haynes v. Led- 
 yard, 33 Id. 319 ; Buckley v. Buckley, 
 12 Nev. 423 ; Fulton v. Central Bank, 
 92 Pa. St. 112; Monongahela Water 
 Co. !!. Stewartson, 96 Id. 436. 
 
 2 Houghton V. Jones, 1 Wall. 
 (U. S.) 702; Bell a. Chambers, 38 
 Ala. 600; Bell v. Prewitt, 62 111. 302; 
 Lloyd u. Thompson, 5 111.. App. 90 ; 
 Aurora v. Cobb, 21 Ind. 492 ; Lands- 
 berger v. Gorham, 5 Cal. 450 ; Cokely 
 V. State, 4 Iowa, 477 ; People v. Hor- 
 ton, 4 Mich. 67; Aitken r. Menden- 
 hall, 25 Cal. 212 ; Congar v. Galena 
 &c. II. R. Co.. 17 Wis. 477 ; People v. 
 Miller, 33 Cal. 99; Cliicago &c. R. R. 
 Co. V. Northern &c. R. R. Co., 36 111. 
 
 60; Wilhelmi v. Leonard, 13 Iowa, 
 330; Leavitt u. Stansell, 44 Mich. 
 424; Donnelly v. State, 2 Dutch. 
 (N. J.) 463, 601; Hartness v. Boyd, 
 5 Wend. (N. Y.) 563; Greaton „. 
 Smith, 1 Daly (N. Y.) 380 ; Campan 
 V. Dewey, 9 Mich. 381; Beaulieu i. 
 Parsons, 2 Minn. 37; Castor v. Bay- 
 ington, 2 Watts & S. (Pa.) 505; 
 Rucker v. Eddings, 7 Mo. 115 ; Floyd 
 V. Bovard, 6 Watts & S. (Pa.) 76; 
 Helser v. McGrath, 52 Pa. St. 531. 
 
 ^ Sumner v. Blair, 9 Kan. 521. 
 S. P., Da Lee v. Blackburn, 11 Kan. 
 190; Phillips ,-. Elwell, 14 Ohio St. 
 240; Haynes v. Ledyard, 33 Mich. 
 319. 
 
 * Buckley v. Buckley, 12 Nev. 423. 
 Compare O'Hagan v. Dillon, 42 N. Y. 
 Superior, 456 ; Baird v. Daly, 68 N. Y. 
 547. See also Ferguson v. Ruther- 
 ford, 7 Nev. 385. 
 
 s Hanchett v. Kimbark (III.) 7 
 N. East. Rep. 491; Cramer v. Culli- 
 nane, 2 MacArth. (D. C.) 197 ; Pryor 
 V. Harris, 30 Ala. 118. 
 
 e People v. Strong, 30 Cal. 151 ; 
 People V. Smallman, 55 Cal. 185; 
 Phares v. Barber, 61 111. 271 ; Metzer 
 V. State, 30 Ind. 596 ; Shackelford ;•. 
 State. 43 Tex. 138. Compare Perl- 
 mutter V. Highland Street Railway 
 Co., 121 Mass. 497. 
 
I 247.] CKOSS-EXAMINATIOK. 409 
 
 examiner may call out the whole of such testimony ; ^ or 
 where a question put on the direct was not fully answered, 
 a full answer may be elicited on the cross.^ 
 
 The better opinion seems to be that, if it be desired to ex- 
 amine a witness upon matters other than those drawn out 
 upon his direct examination, the party must make the witness 
 his own, and call him as such.^ 
 
 But here, as elsewhere, the want of uniformity in legal 
 rules is plainly apparent; for several courts of last resort 
 and high respectability, maintain a doctrine directly the con- 
 verse of that we have just been considering ; they hold that 
 on cross-examination the witness may be inquired of as to all 
 subjects pertinent to the case, whether touched upon in the 
 examination-in-chief, or not ; * and that . to restrict the cross- 
 examiner to the matters brought out on the direct examin- 
 ation is reversible error,^ especiallj'' where the object of the 
 cross-examination is to test the credibility of the witness.® 
 
 § 247. How far limited to Relevancy to the Issue. — The 
 subject of the admissibility of questions as to impertinent, 
 immaterial, and collateral matters on the cross-examination 
 of a witness, has been already pretty fully discussed when we 
 were considering the rules relative to impeachment,'^ and 
 little more remains to be said here upon the topic, as more 
 
 ' Aulger V. Smith, 34 111. 534 ; For further illustrations of more or 
 
 Harness v. State, 57 Ind. 1. less radical departures from the rule 
 
 2 Mason v. Tallman, 34 Me. 472. limiting the cross-examination to mat- 
 
 ^ Boggs V. Thompson, 13 Neb. ters gone into on the direct, see 
 
 403 ; Philadelphia R. E. Co. iJ. Stimp- Tliornburgh „. Hand, 7 Cal. 554; 
 
 son, 14 Pet. (U. S.) 448; State v. Predd v. Eves, 4 Harr. (Del.) 385; 
 
 Smith, 49 Conn. 376; Brown v. State, Quimby v. Morrill, 47 Me. 470; Mer- 
 
 28Ga. 199; Stevens k. Brown, 12 HI. rill v. Berkshire, 11 Pick. (Mass.) 
 
 App. 619 ; Patton v. Hamilton, 12 Ind. 269 ; "Webster v. Lee, 5 Mass. 334 
 
 256; Dearmond u. Dearmond, Id. 455. Thayer v. Barney, 12 Minn. 502 
 
 * State V. Sayers, 58 Mo. 585; Squire v. Wright, 1 Mo. App. 172 
 Fralick v. Presley, 29 Ala. 457 ; White Jackson u. Varick, 7 Cow. (N. Y.) 
 V. Dinkins, 19 Ga. 285; Barker v. 238; Markley v. Swartzlander, 8 
 Blount, 63 Ga. 423 ; Mask v. State, 32 Watts & S. (Pa.) 172 ; Rhodes v. 
 Miss. 405; Fulton Bank v. Stafford, 2 Commonwealth, 48 Pa. St. 396; Hen- 
 Wend. (N. Y.) 483; Liviugston v. derson v. Hydraulic Works, 9 Phil. 
 Keech, 34 N. Y. Superior Court, 547 ; (Pa.) 100; Jackson v. Inabinit, Eiley 
 Kibler v. Mcllwain, 16 So. Car. 550. (S. C.) Ch. 9; State ;;. Cardoza, 11 
 
 5 State o. Thomas, 32 La. Ann. S. C. 195. 
 
 349. ' Supra, Chap. XIII., more particu- 
 
 6 State w. Willingham, 33 La. Ann. larly § 209. 
 537 ; State v. Gregory, Id. 737 ; King 
 
 V. Atkins, Id. 1057. 
 
410 EXAMINATION. [CHAP. XIX. 
 
 latitude is allowed in this respect where the object of the 
 cross-examiner is to impeach or discredit the witness, than 
 where he goes into matters outside the issue for any other 
 purpose ; the rule being a stringent one that a witness cannot 
 be cross-examined as to any facts which, if admitted, would 
 be collateral and wholly irrelevant to the matters in issue, 
 and which would in no way afPect his credit;^ and still less 
 can he be examined as to such facts for the purpose of con- 
 tradicting him by other evidence, and in this manner to 
 discredit his testimony.^ If the witness answer sucli an 
 irrelevant question before it is disallowed or withdrawn, 
 evidence cannot afterwards be admitted to contradict his 
 testimony on the collateral matter.^ The only point to be 
 considered therefore, .is, what matters are and what are not 
 relevant to the issue, and this also has been sufficiently 
 discussed.* 
 
 § 248. 'What Questions are Proper. — In applying the fore- 
 going principles the courts have frequently held that a witness 
 might properly be asked, on cross-examination, as to the 
 intent ov purpose with, which an act or statement material to 
 the issue, was done or made : e.g., whether an assignment 
 claimed to have been fraudulent was made with fraudulent 
 intent ; ^ or, for what purpose the witness went to a place, 
 which, in his direct testimony, he says he visited;^ or what 
 reason he gave for refusing to pay money ; ^ or what is his 
 state of feeling towards the parties ; ^ or whether he was not 
 
 1 See E. V. Collins, 9 Car. & P. ^ Persse, &c. Paper Works v. Wil- 
 459. lett, 1 Kobt. (N. Y.) 131 ; Persse, &c. 
 
 2 Spenceley i.. DeWillott, 7 East, Works v. Willett, 19 Abb. (N. Y.) Pr. 
 108. 410. S. P., Vawter v. Ohio &e. E. K. 
 
 3 Harris v. Tippet, 2 Campb. 637 ; Co., 14 Ind. 174. 
 
 Carpenter v. Ward, 30 N. Y. 243 ; At- ^ Thomason v. Dill, 30 Ala. 444 ; 
 
 torney-General v. Hitchcock,! Mees. Dance v. McBride, 43 Iowa,624; State 
 
 H. & G. 91 ; Shields v. Cunningham, 1 v. Hartnell, 75 Mo. 251. 
 Blackf. (Ind.) 86; Mclntire v. Young, ' Bennett v. Burch, 1 Den. (S. Y.) 
 
 6 Id. 496; Dozier v. Doyce, 8 Port. 141. 
 
 (Ala.) .303; United States K.Dickinson, » Eay v. Bell, 24 111. 444; Bullard 
 
 2 McLean (U. S.) 325. If a, party v. Lambert, 40 Ala. 204 ; Blessing v. 
 
 choose to cross-examine a witness as to Hope, 8 Md. 31. But not towards an- 
 
 an irrelevant and collateral fact, the other witness. State v. Alford, 31 
 
 answers of the witness are conclusive Conn. 40. "Don't you love the de- 
 
 upon him. Lawrence v. Baker, 5 fendanti" was disallowed. Blunt v. 
 
 Wend. (N. Y.) 301 ; Harris v. Wilson, State, 9 Te.x. App. 234. So was " Do 
 
 7 Id. 57 ; 4 Denio. 502 ; 6 Duer, 587. your neighbors call you lying Josh ? " 
 
 1 Supra, § 209, subds. 2 and 3. Hersom v. Henderson, 23 N. H. 498. 
 
§ 249.] CROSS-EXAMINATION. 411 
 
 intoxicated at the time he refers to ; ^ or in the constant 
 habit of making mistakes;^ or upon what basis he makes an 
 estimate of value or quantity.^ So, also, he may be in- 
 terrogated as to his interest in the controversy before the 
 court, or in its result;^ or as to the full particulars of a 
 transaction concerning which he has testified.^ He may be 
 asked whether he has had any private conversation with the 
 counsel of the party calling him ; ^ or whether he employed 
 the counsel who assists the district attorney in a criminal 
 case.'^ Even questions, the answers to which may possibly 
 involve matter of law, are sometimes admissible on cross- 
 examination : e.g.^ whether the witness "had ever authorized 
 any one to waive his discharge under the insolvent laAvs, or 
 the bar of the statute of limitations." ^ 
 
 But the very nature of tlie subject renders it inexhaustible, 
 and a further reference to the great multitude of decisions, 
 where the admissibility of particular inquiries has been passed 
 upon, would unduly swell the size of this work. The object 
 of cross-examination is to elicit the whole truth of transac- 
 tions supposed to have been partially explained ; and any 
 questions tending to fill up designed or accidental omissions 
 of the witness,^ or to draw out a fact which may be rendered 
 material by further evidence,^'' are admissible and proper .^^ 
 
 § 249. Leading Questions. — The rule against leading ques- 
 tions ■'^ has much less application to the cross-examination 
 than it has to the direct. Indeed, almost every cross-exam- 
 
 ' Pool i>. Pool, 33 Ala. 145. Com- » Morris v. Hazlelmrst, 30 Md. 
 
 pare Batten v. State, 80 Ind. 394. 362. Compare Monongahela Water 
 
 2 Mechanics Bank </. Smith, 19 Co. v. Stewartson, 96 Pa. St. 436; 
 
 Johns. (N. Y.) 115. Marshall v. Morrissey, 6 111. 542. 
 
 ^ United States v. ITlowery, 1 ^ Chandler v. Allison, 10 Mich. 
 
 Sprague (tJ. S.) 109; Atchison &c. 460. 
 
 K. K. Co. V. Blackshire, 10 Kan. 477. i" O'Donnell u. Segar, 25 Mich. 
 
 * Vaughan v. "Weslover, 4 Thomp. 367. 
 
 & C. (N. y.) 316; Suit I). Bonnell, 33 " Hearsay evidence, howerer, — 
 
 "Wis. 180. See People v. Christie, 2 what the witness heard others say — 
 
 Abb. (N. Y.) Pr. 256. is generally as objectionable on the 
 
 '' Oldershaw v. Knowles, 101 111. cross, as on the direct examination. 
 
 117. See also Stanton County;.. Dudley t>. Elkins, 39 K H. 78 ; Ash- 
 
 Canfield, 10 Neb. 387. ley v. Wolcott, 3 Gray (Mass.) 571; 
 
 6 Porney v. Perrell, 4 W. Va. 729; Carlton v. Pierce, 1 Allen (Mass.) 26; 
 
 though the court rightly deems it a Adams v. Brown, 16 Ohio St. 75 ; 
 
 breach of professional ethics to ask Browne v. Molliston, 3 Whart. (Pa.) 
 
 such a question. 129. 
 
 ' People V. Blackwell, 27 Cal. 65. ^ Supra, § § 240-242. 
 
412 EXAMINATION [CHAP. XIX. 
 
 illation of a witness is made up, for the most part, of leading 
 questions.^ The witness may be led directly to the point on 
 which his answer is required.^ If he betrays a zeal against 
 the cross-examining party, or shows an unwillingness to 
 speak fairly and impartially, he may be questioned with 
 minuteness as to particular facts, or even particular expres- 
 sions. There can be no danger in leading too much, where 
 the witness is obstinately determined not to follow. 
 
 On the other hand, instances frequently occur where the 
 witness is adverse to the party who calls him, and leans 
 strongly to the other side ; here there must be some restric- 
 tions as to the form and manner of cross-examining. It often 
 happens that a witness, in cross-examination, waits only for a 
 hint to shape a favorable answer, and is in effect the witness 
 of the cross-examining party, though technically called the 
 witness of the opposite side. To put strong leading questions 
 to such a witness, without limitation or reserve, is substan- 
 tially preparing a statement for him, and appears to be 
 inconsistent with justice and a fair trial.^ 
 
 Another point of some difficulty is, as to whether, when a 
 party is once entitled to cross-examine, this right continues 
 throughout the trial of the cause, so that in case he should 
 afterwards recall the same witness to prove a part of his own 
 ease, he may put leading questions to him, treating him as 
 the witness of the party first calling him. As to this there 
 is some difference of judicial opinion, the prevailing idea 
 being, that the trial court has a discretion in such cases to 
 prevent injustice by the abuse of the right to cross-examine.* 
 It is pretty well settled, however, that a party v/bo has not 
 opened his own case will not be permitted to introduce it to 
 the jury by cross-examining the other party's witnesses;^ 
 although after he has opened his case, he may recall them for 
 that purpose.'^ If he seeks to elicit new matter constituting 
 an element of his case, upon cross-examination, he has not the 
 right to put leading questions; as to such new matter the 
 
 1 Harrieon v. Rowan, 3 Wash. Pick. (Mass.) 498; Wallace v. Taun- 
 (U. S.) 580. ton Street Railway, 119 Mass. 91. 
 
 2 See Hardy's Case, 24 How. St. ^ 1 Stark, Ev. 164 ; EUmaker ■/. 
 Tr. 755. Bulkley, 16 S. & R. (Pa.) 77. 
 
 8 2 Pliill. Ev. * 907. " See Burke v. Miller, 7 Cush. 
 
 * 1 Greenl. Ev. [14 Ed.] § 447 ; 1 (Mass.) 547, 550. 
 Stark, Ev. 162; Moody v. Rowell, 17 
 
§ 250.] 
 
 CEOSS-EXAMI^TATION. 
 
 413 
 
 witness becomes his own ; ^ nor can he put words in the wit- 
 ness' mouth, nor assume, by his questions, that there is evidence 
 of a fact when there is none.^ But the court may, in its dis- 
 cretion, permit leading questions to be put, although relating 
 to matters not inquired of upon the direct examination.^ 
 
 § 250. SufBciency and Effect of Witness' Answers. — Ordi- 
 narily speaking, the answers of the witness on a legitimate 
 cross-examination must be deemed to be part of the evidence 
 given in chief; i.e., the witness still remains the witness of 
 the party calling him, and does not become the witness of 
 the cross-examining party, who is not bound by his answers, 
 but is at liberty to contradict tliem by other evidence.* But 
 matters elicited on cross-examination, which are only admis- 
 sible to weaken the force of the testimony-in-chief, ought not 
 to go to the jury for a different purpose.^ 
 
 If, however, the cross-examiner asks a question, a respon- 
 sive answer to which operates against his side of the issue, 
 he cannot get rid of the effect by objecting to the competency 
 of the witness,^ or the admissibility of the evidence.'' 
 
 ^ People, ex rel. Phelps v. Oyer and 
 Terminer, 83 N. Y. 436. 
 
 2 Levi V. State, 14 Neb. 1. 
 
 3 Moodyw.EowelljlTPick. (Mass.) 
 490; Legg v. Drake, 1 Oliio St. 286. 
 See also Livingston v. Keech, 34 N. Y. 
 Superior Court, 547. 
 
 * Horner v. Speed, 2 Patt. & H. 
 (Va.) 616; Gregory v. Nesbit, 5 Dana 
 (Ky.) 419 ; Newberry v. Purnival, 46 
 How. (N. Y.) Pr. 189 ; State v. Lang- 
 don, 17 N. W. Eep. (Minn.) 859. 
 
 An erroneous notion prevails, as to 
 the question on whose part the evi- 
 dence given on cross-examination is 
 to be considered as introduced. It is 
 not unusual to find in bills of excep- 
 tions, a statement of the evidence 
 drawn out on the cross-examination, 
 as evidence introduced by the party 
 making the cross-examination, " tend- 
 ing to prove " his case. This state- 
 ment is always incorrect when used 
 with reference to a legitimate cross- 
 examination. All testimony elicited 
 on such cross-examination, consisting, 
 as it does, of facts which, though re- 
 lating to the direct examination, may 
 
 have been omitted or concealed in 
 that examination, or facts tending to 
 contradict, explain or modify such 
 facts, or to rebut or modify some in- 
 ference which might otherwise be 
 drawn from them, must in the nature 
 of things constitute a part of the 
 evidence given in chief; and both 
 alike and together must, therefore, 
 be treated as evidence given on the 
 part of the party calling the witness. 
 The evidence given by the witness is 
 not that alone given in chief, but it is 
 that given in chief, as contradicted, 
 explained, enlarged, narrowed or mod- 
 ified by the cross-examination. It is 
 simply the combined result of both. 
 Wilson V. Wagar, 26 Mich. 452. 
 
 5 Luther v. Skeen, 8 Jones (N. C.) 
 L. 356. 
 
 " Bailey v. Cooper, 5 Humph. 
 (Tenn.) 100. 
 
 ' Boteler v. Beall, 7 Gill & J. (Md.) 
 389; Kelley v. Merrill, 14 Me. 228; 
 Artcher v. McDuffie, 5 Barb. (N. Y.) 
 147. See also Monk v. Union, &c. 
 Ins. Co., e Eobt. (N. Y.) 455. 
 
 In Printup c. Mitchell (17 Ga. 
 
414 EXAMINATION. [CHAP. XIX. 
 
 § 251. Cross-examination of Defendants in Criminal Cases. 
 — In general it may be said that the accused in taking tie 
 stand has voluntarily changed his status from defendant to 
 witness, and consequently may be treated like any other ; be 
 cross-examined within the usual boundaries; be discredited, 
 contradicted and impeached.^ There are, however, limita- 
 tions upon this doctrine necessary to be understood before 
 one can reach a rightful appreciation of the subject. 
 
 These are usually confined to the line opened up by the 
 direct,^ with such deflections as may be necessary to bring 
 the entire matter trenched upon by the direct before the 
 court; that is, to extract the whole truth concerning the 
 facts brought forward by hiiu. An apparent exception is 
 found in the admissibility of questions tending to discredit 
 his veracity as a witness ; of course, it naturally follows that 
 successful efforts of that nature operate materially against 
 him as the accused, but having voluntarily placed himself in 
 the witness-box, he must abide the consequences. Where a 
 defendant undertakes, upon his direct examination, to state 
 all that transpired between two points of time, he may be 
 asked upon the cross whether he has omitted anything perti- 
 nent to the case, and, if necessary, his attention may be 
 directed to the precise point by asking him if some specified 
 thing did not occur.^ In the discretion of the court he may 
 be recalled for further cross-examination,* even though it be 
 for the purpose of impeaching his testimony, if the further 
 cross-examination relate to the same matters as were referred 
 to in his direct examination.^ But whether the trial judge 
 
 558), it is held that a witness, on his weight. People v. Harper, 1 Edni. 
 
 cross-examination, may answer by re- (N. Y.) Sel. Cas. 180. 
 ferring to his preyious answers to the i McKeone v. People, 6 Cal. 34fl ; 
 
 direct questions ; while in Union Bank State v. Owen, 78 Mo. 367 ; State r. 
 
 ^. Torrey (5 Duer (N. Y.) 020) pre- Red, 53 Iowa, 09; State v. Withani, 
 
 cisely the contrary doctrine is laid 72 Me. 531 ; Territory (^r«.) ^. Davis, 
 
 down. 10 Pac. 'Rep. 359; Thomas u. State 
 
 If the witness' answers are not {Ind.) 7 Cr. L. Mag. 50. 
 full, but yet substantial, they will not ^ State v. Porter, 75 Mo. 171 ; Stnti' 
 
 be stricken out (Walker v. Walker, v. McLaughlin, 76 Mo. 320; State (■. 
 
 14 Ga. 242) ; but if it appears on the Turner, Id. 350. 
 cross-examination that the witness ^ People v. Russell, 46 Cal. 121 ; 
 
 has not the moral sense requisite to People v. Wallin, 22 N. W. Rep. 15; 
 
 make him a competent witness, the Greenly v. State, 60 Ind. 141. 
 court may, in its discretion, strike out * State v. Cohn, 9 Nev. 179. 
 his testimony, or leave it to the jury ^ State v. Ilorne, 9 Kan. 119. 
 
 with proper instructions as to its due 
 
251.] 
 
 ceoss-exa:.iination'. 
 
 415 
 
 has a discretion to permit the cross-examiner to probe the 
 witness as to previous prosecutions against him, in no way 
 connected with the case on trial, is a point upon which the 
 adjudged cases are in conflict.^ The supreme court of Cali- 
 fornia has well said that the mere fact that the defendant in 
 a criminal prosecution offers himself as a witness in his own 
 behalf, does not change or modify the rules of practice with 
 reference to the proper limits of a cross-examination, and 
 does not make him a witness for the state against himself.^ 
 
 1 That such questions may be put, 
 see People v. Gale, 50 Mich. 237; 
 People V. Hovey, 29 Hun (N. Y.) 
 382. 
 
 In People v. Brown (72 N". Y. 571), 
 the question asked on cross-examina- 
 tion was, '• How many times have you 
 been arrested ? " Quaere, whether the 
 evidence was competent as bearing 
 upon the credibility of the witness. 
 This same court went a step further 
 in People v. Crapo (76 N. Y. 288), and 
 distinctly held that the question put 
 to the accused, when testifying upon 
 his trial for burglary and larceny, 
 " Were you also, in 1869, along in 
 February or March, arrested on a 
 charge of bigamy t " was incompetent, 
 and did not legitimately tend to im- 
 pair the credibility of the witness; and 
 Chief Justice Church, in his opinion, 
 says: " Although the witness did not 
 claim the privilege, the question was 
 incompetent. It did not legitimately 
 tend to impair the credibility of the 
 prisoner as a witness, and was not 
 competent for any purpose. The dis- 
 cretion which courts possess, to per- 
 mit questions of particular acts to be 
 put to witnesses for the purpose of 
 impairing credibility, should be exer- 
 cised with great caution, when an ac- 
 cused person is a witness on his own 
 trial. He goes upon the stand under 
 a cloud; he stands charged with a 
 criminal offence not only, but is under 
 the strongest possible temptation to 
 give evidence favorable to himself. 
 His evidence is therefore looked upon 
 with suspicion and distrust, and, if in 
 addition to this, he may be subjected 
 to a cross-examination upon every in- 
 
 cident of his life, and every charge of 
 vice or crime which may have been 
 made against him, and which have no 
 bearing upon the charge for which he 
 is being tried, he may be so preju- 
 diced in the minds of the jury as fre- 
 quently to induce them to convict 
 upon evidence which otherwise would 
 be deemed insufficient. It is not 
 legitimate to bolster up a we.ak 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." 
 
 In People v. Johnson (7 Pac. C. L. 
 J. 168), the defendant was asked on 
 cross-examination if he had been pre- 
 viously convicted of a felony, and com- 
 pelled, against his will, to answer. 
 It was held that the question was 
 proper as going to his credibility as a 
 witness; the court saying that Peo- 
 ple V. Brown, supra, is not in conflict. 
 But in People v. lams (57 Cal. 115), 
 a defendant in an indictment for mur- 
 der, was asked whether any criminal 
 intimacy had existed between himself 
 and the wife of the deceased. And 
 the question was held to be immate- 
 rial. 
 
 2 People V. McGungill, 41 Cal. 429. 
 This subject of self -criminating testi- 
 mony, or the privilege to refuse to an- 
 swer, will be found treated infra. 
 Chap. XXII. ; and the consequence of 
 defendant's failure to become a wit- 
 ness, or refusal to answer questions 
 put to him on cross-examination, are 
 pointed out, supra. Chap. IX. 
 
416 EXAMIXATION-. [chap. XIX. 
 
 § 252. Cross-examination of Accomplices and Persons jointly 
 indicted. — Little ueed be said upon this matter, other than 
 what this chapter already contains, which is equally appli- 
 cable to the witnesses now under consideration, except that 
 the latitude of cross-examination is especially extended where 
 the witness is an accomplice, in allowing questions having a 
 tendency to shake his credit by injuring his character, or to 
 prove his accuracy or veracity ; and in such matters much is 
 left to the enlightened disci'etion of the court trj'ing the 
 cause, and its action will not be reviewed, unless such dis- 
 cretion appears manifestly to have been -abused.^ Thiis, one 
 who turns state's evidence against his alleged associates in 
 crime, under an assurance that his disclosures are not to be 
 used against him, may be cross-examined as to wliat he told 
 counsel about the offence, while he was himself charged.^ 
 So also the defendant may show on the cross-examination of 
 such a witness, that he had been offered money, and property, 
 and immunity from punishment, if he would testify as he 
 finally testified on behalf of the state ; the fact that the offer 
 was made by one having no authority to make it going to 
 the weight and not the competency of the evidence.^ 
 
 1 Marler v. State, 68 Ala. 580. » State r. Condry, 5 Jones (N. C.) 
 S. P., Lee V. State, 21 Oliio St. 151. L. 418. 
 
 3 xuUis V. State, 4 Ohio L. J. 12. 
 
CHAPTER XX. 
 
 KE-EXAMINATION, EBBTTTTAL AND SUEREBTJTTAL, 
 KECALLING AND EE-EXAMINING. 
 
 § 253. Ee-direct Examination. 
 
 § 254. Re-cross-examination. 
 
 § 255. Examination in Rebuttal, or Surrebuttal. 
 
 § 256. Recalling and Re-examining Witnesses. 
 
 § 253. Re-direct Examination. — The Conduct and extent 
 of the re-divect examination (which follows, and is intended 
 to neutralize the effect of the cross-examination) is left very 
 much to the sound discretion of the presiding judge, subject 
 to the general rule that it shall not extend to any new matter 
 unconnected with the cross-examination, and which might 
 have been gone into on the direct examination.^ If the re- 
 examiner wishes to elicit new matter from the witness, he 
 must obtain the permission of the court ; and if that permis- 
 sion be refused, he has no ground of exception.^ But if the 
 cross-examiner draws out new matter not inquired about iu 
 the examination-in-chief, he makes the witness his own for 
 that purpose, and the opposite party may cross-examine on 
 such new matter ; ^ always provided it be material, for a 
 witness cannot be examined directly as to irrelevant matters, 
 though he has been questioned as to them on the previous 
 cross-examination.* And it is held that where a witness is 
 examined by both parties respecting a matter irrelevant to 
 the issue, without objection, one party cannot afterwards ob- 
 
 1 The Queen's Case, 2 Brod. & B. 262. See also Schaser v. State, 36 
 297 ; Prince v. Same, 7 Ad. & E. 627 ; Wis. 429. 
 
 Donnelly c. State, 2 Dutch (N. J.) » Bassham u. State, 38 Tex. 622. 
 
 483, 601 ; Dutton v. Woodman, 9 Compare Farmer's &c. Bank v. Young, 
 
 Cush. (Mass.) 255; State v. Denis, 19 .36 Iowa, 45. See also Goodman v. 
 
 La. Ann. 119; Beal v. Nichols, 2 Gray Kennedy, 10 Neb. 270. 
 (Mass.) 262; Commonwealth u. Wil- * Smith v. Dreer, 3 Whart. (Pa.) 
 
 SDn, 1 Id. 337; Covanlioran v. Hart, 154. But see to the contrary, State v. 
 
 21 Pa. St. 495; Richardson v. Wil- Witham, 72 Me. 631; Mowry r. 
 
 kins,. 19 Barb. (N. Y.) 510. Smith, 9 Allen (Mass.) 67; Furbush 
 
 2 Beal i,'. Nichols, 2 Gray (Mass.) v. Goodwin, 5 Fost. (N. H.) 425. 
 
418 EXAMINATION. [CHAP. XX. 
 
 ject to the witness' further examination on the same subject.^ 
 Thus, where collateral facts were called out in the cross- 
 examination of a witness, tending to create distrust of his 
 integrity, fidelity, or truth, it was held competent for the 
 adverse party to ask of the witness an explanation which 
 might show the consistency of such facts with his integrity, 
 fidelity, and truth, although circumstances might thus be 
 proved which were foreign to the principal issue, and which, 
 but for such previous cross-examination, would not have 
 been permitted to be proved.^ Again, a party bringing out, 
 on cross-examination, the fact of the existence of a certain 
 instrumerjt, cannot complain of the production of the instru- 
 ment on the re-direct examination.^ 
 
 The principal seeming departure from the strict rule, 
 arises in cases where a part of a conversation between the 
 witness and a third person is drawn out on the cross-examina- 
 tion. In such cases, the better opinion seems to be that the 
 re-examiner may demand of the witness all that was said at 
 that conversation, pertaining to the same subject-matte?' of 
 inquinj} But if the conversation, a part of which is thus 
 detailed on the cross-examination without objection, is a 
 mere hearsa,y story, this will not authorize the calling out of 
 the rest of it, against objection, on the re-direct examination, 
 upon the claim that it is part of the same conversation.^ 
 
 1 Young f. Mason, 8 Pick. (Mass.) witness he was, had spoken to him on 
 
 551. the subject of the suit, and lie an- 
 
 ■•^ United States v. Barrels of Higli swered that lie had, the party calling 
 
 Wines, 8 Blatclif. (U. S.) 475. him, on re-examination, was allowed 
 
 8 Fillmore v. Union Pacific R. 11. to ask what he had said to the witness. 
 
 Co., 2 Wyom. T. 94. Somerville &c. E. R. Co. u. Doughty, 
 
 ^ Rohcrts K. Roberts, 85 N. C. 9. 2 Zab. (N". J.) 495. 
 That this is really within the rule Where a witness ie introduced by 
 stated at the beginning of this section a party, and is asked as to a particular 
 of the text, will appear by the clause fact, and theopposite party, on cross- 
 printed in italics. To illustrate : — examination, asks him generally if he 
 
 Where the defendant, on cross- ever communicated that fact to any 
 
 examination, inquired of a witness one, and to whom, and he answers 
 
 what a third person told him, it was that he communicated it to the party 
 
 held, that this did not authorize the calling him, this does not entitle the 
 
 plaintiff, upon a re-examination, to party calling him to inquire as to his 
 
 ask the witness what the third person, own reply and other conversation, at 
 
 in the same conversation, said the de- the time. Winchell v. Latham, 6 
 
 fendant himself had told him. Mc- Cow. (N. Y.) 682. See also People r. 
 
 Cracken v. West, 17 Ohio, 10. Beach, 87 N. Y. 508; Walsh v. Porter- 
 
 Where a witness, on crnss-examin!i- field, 87 Pa. St. -^76. 
 tion, was asked if the party whose ^ Wagner' t-. People, 30 Mich. .334. 
 
. § 255. J KE-EXAMINATION, REBUTTAL, ETC. 419 
 
 The counsel conducting the re-direct examination, may 
 always ask such questions as may be proper to elicit an ex- 
 planation of the true sense and meaning of the expressions 
 used by the witness on the cross-examination; and the 
 motive by which the witness was induced to use those ex- 
 pressions.i So he may be questioned with a view to correct 
 his testimony on the cross-examination .^ 
 
 § 254. Re-cross-examination. — This is no more than a 
 further continuance of the original cross-examination, ad- 
 dressed more particularly to the matter brought out on the 
 re-direct. Its allowance is a matter of discretion with the 
 presiding judge, it not being demandable as a matter of right ;^ 
 and no exception lies to a ruling which excludes the further 
 cross-examination of a witness, whose direct and cross- 
 examination have several times been taken up and dropped.* 
 Thus, where a witness has returned to the stand to correct > 
 his testimony upon a single point, there is no error in refus- 
 ing to permit him to be re-cross-examined, except on that 
 point. The matter is entirely within the discretion of the 
 court below.^ But it has been held that where, on the re- 
 examination-in-chief of a witness, new matter is brought out, 
 which is neither explanatory of the first, nor in rebuttal of 
 the cross-examination, the opposite party have the right to 
 cross-examine again as to such new matter.^ 
 
 § 255. Examination in Rebuttal or Surrebuttal. — The gen- 
 eral rule is, that each party must introduce all the evidence 
 upon which he relies to establish his side of the case, before 
 he rests ; then after his adversary closes his evidence, he 
 may give proof in reply or rebuttal. But whether evidence 
 may be given in rebuttal which should and could properly 
 have been offered in chief, is a matter within the discretion 
 of the court.'' Whether a witness shall be examined in surre- 
 
 1 1 Greenl. Er. (14 Ed.) §467; « Thornton r. Thornton, 39 Vt. 122. 
 Campbell o. Sfate, 23 Ala. 44. See « Wood v. McGuire, 17 Ga. 303. 
 also Gommonwealth v. Wilson, 1 Gray ' Marshall v. Davis, 78 N. Y. 414 ; 
 (Mass.) 337. State v. Alford, 31 Conn. 40 ; Strong 
 
 2 Gilbert v. Sage, 5 Lans. (N. Y.) v. Connell, 115 Mass. 575 ; Babcock v. 
 287. Babcock, 46 Mo. 243; Graham r. 
 
 > State y. Hoppiss, 5 Ired. (N.C.)L. Davis, 4 Ohio St. 362; Young v. Ed- 
 
 406; Thornton K.Thornton, 39 Vt. 122. wards, 72 Pa. St. 257. Compare 
 
 * Commonwealth v. Nickerson, 5 Clayes y. Ferris, 10 Vt. 112; State u. 
 
 Allen (Mass.) 518. Hartigan, 19 N. H. 248. 
 
420 EXAMINATIOK. [CHAP. XX. 
 
 buttal is also discretionary with tlie trial judge ; ^ and to be 
 admissible, rebutting testimony must tend directly to weaken 
 or impeach the proof on the opposite side ; merely cumula- 
 tive testimony is not matter of rebuttal.^ 
 
 § 256. Recalling and Re-examining 'Witnesses. — (1) Gen- 
 erally. Here also the rule is, that the re-examination of a 
 witness is a matter within the discretion of the primary court, 
 and cannot be reviewed by an appellate court.* And while 
 the court may allow a witness to be called back for re-exam- 
 ination, it cannot compel either party to call back his wit- 
 ness unless he choose to do so. In case a witness is so called 
 back, after being dismissed by the party who summoned him, 
 he becomes the witness of the party calling him back against 
 the objection of the other party ; and such witness cannot be 
 impeached by the party so calling him back.* When re- 
 called, the court is entitled to exercise a large discretion as to 
 the manner in which, and the extent to which, the favor 
 granted shall be made use of.® 
 
 The court ma}-, in a proper ease, allow a witness to be re- 
 called for the purpose of laying the foundation for his im- 
 peachment, and this, even where the witness is a defendant 
 on trial for a crime ; ^ and a witness may be allowed to return 
 to the stand and testify, after a case has been submitted to 
 the jury, and they have been addressed by counsel.'^ Objec- 
 tions to the recalling of a witness must state specifically the 
 grounds of objection, or his testimony will not be excluded.^ 
 
 It is the practice of chancery courts not to allow a witness, 
 whose examination has been taken and closed, to be re- 
 examined without an order of court, obtained on good cause 
 shown.^ 
 
 1 Koenig v. Bauer, 57 Pa. St. Howell v. Commonwealth, 5Gratt). 
 168. (Va.) 664. 
 
 2 Craighead v. "Wells, 21 Mo. 404. * Barker v. Bell, 46 Ala. 216. 
 
 See also Lott v. Macon, 2 Strobh. ^ Cummings u. Taylor, 24 Minn. 
 
 (S. C.) 178. 429. 
 
 3 Gayle v. Bishop, 14 Ala. 562 ; e State v. Horne, 9 Kan. 119. See 
 Freleigh v. State, 8 Mo. 606 ; Brown also Boss v. Hayne, 3 Greene (Iowa) 
 r. Burras, 8 Mo. 26 ; People v. Mather, 211. 
 
 4 Wend. (N. Y.) 229 ; Law v. Mer- ' Colclough v. Ehodus, 2 Rich. 
 
 rills, 6 Id. 268; Sheldon v. Wood, 2 (S. C.) 76; Thompson u. Poston, 1 
 
 Bosw. (N. Y.) 267 ; Breidert v. Vin- Duv. (Ky.) 389. 
 
 cont, 1 E. D. Smith (N. Y.) 542 ; State « Osborne v. O'Reilly, 34 N. J. Eq. 
 
 )'. Silver, 3 Der. (N. C.) L. 3.S2; 60. 
 
 Covanhovan v. Hart, 21 Pa. St. 495 ; ' Phettiplace v. Sayles, 4 Mason 
 
§ 25G.] EE-EXAMINATIOK, KBBUTTAL, ETC. 421 
 
 (2) Recalling witness to explain, correct, or re-state previous 
 testimony. This discretionary power of the court is fre- 
 quently used in the way' of permitting the witness to be 
 recalled to explain an apparent contradiction in his testi- 
 mony;^ or where, through forgetfulness or inadvertence, he 
 has misstated a fact, which mistake he discovers upon reflec- 
 tion, and'desires to rectify;^ and this leave should be given 
 where the correction is to be made on a fact as to which he 
 was not cross-examined, and as to which the court, the clerk, 
 and the counsel disagreed as to whether it had been taken 
 down correctly;^ but this course will not be permitted 
 merely to alter and correct the testimony of the witness, 
 after the cause has been heard and discussed and decided 
 upon the very matters of fact to which that testimony re- 
 ferred.* 
 
 With regard to the recalling a witness for the mere purpose 
 of having him re-state his testimony, the court will use more 
 caution. " It is a dangerous practice, and should be allowed, 
 if at all, with great caution, and never with a witness whose 
 fairness lies under any grounds of suspicion."^ The court 
 may interfere to prevent this from being done, even thougli 
 the counsel on the opposite side do not object.^ A mere 
 reiteration of the former testimony of the witness will not, 
 ordinarily, be permitted." 
 
 The jury, however, have the right to a re-statement by a 
 witness of such portions of his evidence as they may desire, 
 in presence of the court, at any time before delivering their 
 verdict.^ 
 
 (3) IVew matter. Some decisions restrict the propriety of 
 allowing a re-examination at all, unless it be confined strictly 
 to new matter, such as arises out of the testimony of other 
 
 (U. S.) 312 ; Hanson v. First &o. Ch. 412. See also Bissell v. Russell, 
 
 Church, 3 Stock. (N. J.) 441 ; Beach 23 Hun (N. Y.) 659. 
 
 V. Fulton Bank, 3 Wend. (N. Y.) 573 ; » Bigelow v. Young, 30 Ga. 121. 
 
 Hallock V. Smith, 4 Johns. (N. Y.) « Aiken v. Stewart, 63 Pa. St. 30. 
 
 Ch. 649. ' Hughes v. Mulyey, 1 Sandf. 
 
 1 State i;. Rorabacher, 19 Iowa, (N. Y.) 92; Hudspeth v. Allen, 20 
 154. Ind. 165. See also, generally, Jesse 
 
 2 Walker v. Walker, 14 Ga. 242. v. State, 20 Ga. 156 ; Edmonson v. 
 8 Dunn V. Pipes, 20 La. Ann. 276. State, 7 Tex. App. 116. 
 
 S. P., Kingston v. Tappan, 1 Johns. * Van Huss v. Rainbolt, 2 Coldw. 
 
 (N. Y.) Ch. 368. (Tenn.) 139. 
 * Gray v. Murray, 4 Johns. (N. Y.) 
 
422 
 
 EXAMINATION. 
 
 [chap. XX. 
 
 witnesses,-^ or as 1io facts concerning which he has not before 
 testified ; ^ and even then liis re-examination is a matter of 
 discretion, and not of right.^ 
 
 1 Collins V. Johnson, Hempst. 
 (U. S.) 279 ; Sawyer v. Sawyer, Walk. 
 (Mich.) 48. 
 
 2 Jenkins v. Eldredge, 3 Story 
 (U. S.) 299; State v. Scott, 24 La. 
 Ann. 161. 
 
 3 United States t. Wilson, Bald. 
 (U. S.) 78; Curren v. Connery, 5 
 Binn! (Pa.) 488. 
 
 As to when witnesses may be re- 
 
 called and re-examined in rebuttal 
 and surrebuttal, see Stein v. McArdle, 
 24 Ala. 344; Reynolds u. State, 68 
 Ala. 502; Pleasant v. State, 15 Ark. 
 624; Thomasson v. State, 22 Ga. 
 499 ; Thomas i-. State, 27 Ga. 287 ; 
 Rust ... Shackleford, 47 Ga. 538; 
 Artz V. Chicago &c. E. E. Co., 44 
 Iowa, 284; White i>. Bailey, 10 Mich. 
 155 ; Dunham v. Forbes, 25 Tex. 23. 
 
CHAPTER XXI. 
 
 PRIVILEGE TO REFUSE TO ANSWER, GENERALLY. 
 
 § 257. In what Cases the Privilege may be clainied. 
 
 § 258. When Answer may subject Witness to Civil Suit or Pecuniary Loss. 
 
 § 269. Or to a Penalty or Forfeiture. 
 
 § 260. Or Disgrace and Degrade him, or render him Infamous. 
 
 § 257. In ■what Cases the Privilege may be claimed. — The 
 privilege of witnesses in not being compellable to answer the 
 questions which may affect their personal rights, is a matter 
 of frequent occurrence and of considerable importance. Tiie 
 cases to be considered (viewing them in the order of their 
 importance) are those where the witness may, by answering, 
 subject himself, first, to a criminal prosecution ; or, secondly, 
 to a penalty or forfeiture ; or, thirdly, to civil process or 
 pecuniary loss ; or, lastly, where the answering of the ques- 
 tion may be degrading to character. 
 
 We will take up here the consideration of the second, third, 
 and last classes of cases where the privilege has been claimed 
 — not, however, in the order given above — reserving the 
 first, and by far the most important and frequent claim of 
 privilege for consideration in the next chapter. 
 
 But first let us notice a few claims of privilege which do 
 not fall within any of the classes above named, and most of 
 which, through statutory changes in the law, have become 
 obsolete, and would not at this day be entertained if urged 
 in a court of justice. Thus, it was formerly held that the 
 plaintiff of record^i or the party for whose benefit a suit was 
 brought,^ could not be compelled, unless he waived his privi- 
 lege, to testify for the defendant. So, a party in interest, in 
 a suit in another state, could not be compelled to testify 
 before a magistrate as a witness in that suit.^ Bail could 
 not be compelled, against their will, to testify against their 
 
 1 Owings V. Low, 5 Gill & J. (Md.) ' People v. Irving, 1 Wend. (N. Y.) 
 134. 20. 
 
 2 Mauran v. Lamb, 7 Cow. (N. Y.) 
 174. 
 
424 EXAMINATION. [CHAP. XXI. 
 
 principal.^ And more recent cases assert a party's privilege 
 to refuse to answer, in a deposition, questions tending to dis- 
 cover the names of his witnesses, and his manner of proving 
 his case.^ A detective, also, who during his examination-in- 
 chief has referred to a private memorandum book to refresh 
 his memory, may refuse its production and examination for 
 the purpose of cross-examination, if he makes it appear to 
 the court that he has reasonable ground of belief he would 
 thereby subject himself to personal injury by exposure of his 
 doings as a detective.^ And public policy authorizes a judge 
 of a court to excuse himself from testifying as to what wit- 
 nesses have testified on trials before him ; but it furnishes no 
 ground of exception, should he not insist upon his right to 
 be excused.* So, also, an officer of the government is not 
 compellable to give evidence or to produce documents which, 
 in his opinion, it is for the public interest to keep secret, nor 
 in any case while he is officially engaged in the duties of his 
 office.^ 
 
 § 258. 'When Ans-wer may subject Witness to Civil Suit or 
 Pecuniary Loss. — The better opinion, backed by the weight 
 of authority, undoubtedly is, that a witness is bound to an- 
 swer a question in a matter jiertinent to tlie issue, where his 
 answer will not expose him to criminal prosecution, or tend 
 to subject him to a penalty or forfeiture, although it may 
 otherwise adversely affect his pecuniary interest, or expose 
 him to a civil action.^ The constitutional provision that no 
 
 1 Shotwell D. Morris, Coxe (N.J.) v. Kemp, 4 Har. & J. (Md.) 348; 
 224. But see Garey v. Frost, 6 Ala. Naylor v. Semmes, 4 Gill & J. (Md.) 
 030. 273 ; Copp v. Upliam, 3 N. H. 159 ; 
 
 2 Eaton V. Farmer, 46 N. H. 200. Alexander v. Knox, 7 Ala. 503 ; Bull 
 8 State V. Bacon, 41 Vt. 526. v. LoTeland, 10 Pick. (Mass.) 9 ; Baird 
 * Welcome ti.Batchelder, 23 Me. 85. v. Cochran, 4 S. & R. (Pa.) 397; Mil- 
 " See Marbury v. Madison, 1 ler v. Creyon, 2 Brev. (S. C.) 108 ; 
 
 Cranch (U. S.) 137 ; Totten v. United Judge of Probate v. Green, 2 Miss. (1 
 States, 92 U. S. 105; Thompson v. How.) 146; ZoUicoffer v. Turney, 6 
 German Valley K. Co., 22 N. J. Eq. Yerg. (Tenn.) 297. See Connor v. 
 Ill ; Hartranft's Appeal, 85 Pa. St. Brady, Anth. (N. Y.) 99 ; Gorham c. 
 442; Grayw. Pentland,2 S. &Ii.(Pa.) Carrol, 3 Litt. (Ky.) 221; Black v. 
 26 ; Beatson v. Skene, 5 Hurlst. & N. Coorgh, Id. 226 ; Lowney v. Perham, 
 850 ; R. V. Hardy, 24 How. St. Tr. 109 ; 20 Me. 235 ; Matter of Kip, 1 Paige, 
 E. V. Watson, 32 Id. 102. (IST. Y.) 601 ; Stewart c. Turner, 3 
 6 Hays ^. Ricliardson, 1 Gill & J. Edw. (N. Y.) 458 ; Taylor v. Jennings, 
 (Md.) 366; Commonwealth v. Thurs- 7 Robt. (N. Y.) 581; Harper v. Bur- 
 ton, 7 J.J. Marsh. (Ky.) 62; Conover row, 6 Ired. (N. C.) L. 30; Ward v. 
 t).Bell,6T.B. Mon. (Ky.) 157; Taney Shaw, 15 Vt. 115. Contra, see Web- 
 
§ 250.] PIUVILEGE TO EEFUSE TO ANSWER. 425 
 
 one shall be compelled to accuse or furnish evidence against 
 himself, does not relate to questions of property, but to crim- 
 inal cases only.i 
 
 An early case in the District of Columbia, however, holds 
 that a book-keeper of a bank is not obliged to answer a ques- 
 tion, the answer to which might charge him with a loss;^ 
 and in other early cases witnesses who became voluntarily 
 interested after suit brought, were denied the privilege as to 
 what was known to them before,^ but granted it as to what 
 came to their knowledge after they became interested.* 
 
 § 259. ^W■hen AnsTver may subject Witness to a Penalty or 
 Forfeiture. — Whether a witness may refuse to answer a ques- 
 tion on the ground that his testimony would tend to expose 
 him to a liability by way of penalty or forfeiture, is a point 
 upon which the adjudications are less harmonious. Some 
 respectable decisions hold that the witness is thus privi- 
 leged,^ even though the object of the suit is not to enforce 
 such penalty or forfeiture, but would only expose the party 
 to another suit for that purpose;^ and others, of equal re- 
 spectability deny him the privilege to refuse to answer in 
 such cases.'^ 
 
 Bter V. Lee, 5 Mass. 334 ; Appleton v. that he is not bound to answer a par- 
 
 Boyd, 7 Id. 131 ; Starr v. Tracy, 2 ticular question ; but the objection 
 
 Root (Conn.) 528 ; Simons v. Payne, should be stated to the examiner. 
 Id. 406. 6 Poinde.xter v. Davis, 6 Gratt. 
 
 1 DevoU V. Brownell, 5 Pick. (Va.) 481. 
 
 (Mass.)448; Keithv.Woombell, 81d. ' United States v. Smith, 4 Day 
 
 217. (Conn.) 121; Wilkins c. Malone, 14 
 
 2 Bank of United States v. Wash- Ind. 158 ; Perrine v. Striker, 7 Paige, 
 ington, 3 Cranch C. Ct. 295. (N. Y.) 598, in which case it is held 
 
 8 Tatum V. Lofton, Cooke (Tenn.) that, although the effect of usury is to 
 
 115; Patton v. Brown, Id. 126. subject the usurious lender to a loss 
 
 * Simons v. Payne, 2 Boot (Conn.) of the money lent, yet a bill for dis- 
 
 406. covery and relief, in such case, is not 
 
 6 Matter of Kip, 1 Paige (N. Y.) a criminal case within the meaning of 
 
 601 ; Taylor v. Wood, 2 Edw. (N. Y.) the provision of the constitution ex- 
 
 94. empting persons from bearing testi- 
 
 In the case last cited, it is held that mony against themselves. But c<im- 
 
 where the answer to a question might pare Henry v. Salina Bank, 1 N. Y. 
 
 subject the witness to a penalty or 83 ; s. c. 2 Den. 155, where it is held 
 
 forfeiture, it is the duty of the exam- that a witness, or a party called as a 
 
 iner to inform him of his rights ; and witness, may not only object to testi- 
 
 the witness may ask the advice of fying to the main fact, which would 
 
 counsel when he desires to object to subject him to a penalty or forfeiture, 
 
 a question. But the counsel for the but may also refuse to disclose any 
 
 parties have no right to interrupt an one of a series of facts which together 
 
 examination, by informing the witness would expose him to such penalty or 
 
426 EXAMINATION. [chap. XXI. 
 
 In applying the affirmative doctrine, it Las been held that 
 a county treasurer may refuse to answer an interrogatory 
 put to him by a committee appointed by the county super- 
 visors, concerning moneys in his hands as such treasurer ;i 
 that in an action to recover penalties and for forfeiture of 
 photographic plates, for violating a copyriglit for ohroinos, 
 defendant cannot be compelled, under a subpoena duces tecum, 
 to produce his books of account and plates, to be used iti evi- 
 dence for plaintiff ; ^ that in an action against a newspaper 
 advertiser and his amanuensis, for libel, the latter could not 
 be asked, after showing him the original manuscript of the 
 alleged libel, whether it was in his handwriting;^ that an 
 officer to whose care a jury had been committed cannot be 
 compelled to testify to the fact of the jury's separating after 
 a cause was committed to them, and before they had agreed 
 upon their verdict ; * that a party to a wager cannot be com- 
 pelled to testify, in an action qui tarn to recover the penalty 
 for betting ; ° that in an action of trespass quare clausum, 
 where a warrant of resurvey has been ordered, neither a sheriff 
 nor his deputy can be compelled to give evidence that tlie 
 defendant in such action had not sufficient notice of the exe- 
 cuting of such warrant ; ^ and that a plaintiff on the record, 
 or party in interest, when called upon to testify under the 
 usury act of New York, cannot be compelled to disclose facts 
 tending to show that the promissory' note, to recover which 
 the suit is brought, was discounted by him in violation of the 
 statute concerning the discounting of notes, etc., by officers 
 and agents of banking corporations.'^ 
 
 On the other hand, it is held that the purchaser of intoxi- 
 cating liquors sold contrary to law, not being, under ordinary 
 circumstances, subject to any penalty, eitlier at common law, 
 as inducing the seller to commit a misdemeanor, or under 
 
 forfeiture; and that it is not an an- ^ Simmons v. Holster, 13 Minn. 
 
 swer to such claim of privilege that 249. 
 
 the statute of limitations has run * Howard v. Cobb, 3 Day (Conn.) 
 
 against the offence, unless it appears 309. 
 
 that such answer was suggested on ^ Anderson v. State, 7 Ohio (Part 
 
 the trial. 2d) 250. 
 
 1 Re Dickinson, 58 How. (N. Y.) ^ Frammel v. Thomas, 1 Har. & M. 
 Pr. 2C0. (Md.) 261. 
 
 2 Johnson r. Donaldson, 18 Blatchf. ' Henry v. Salina Bank, 1 N. Y. 
 (U. S.) 287. 83; IN. Y. Eer. Stat. 505, § 28. 
 
§ 260.] PRIVILEGE TO EEPUSE TO ANSWER. 427 
 
 the statute, may therefore be compelled by imprisonment 
 to testify as to such sale.^ 
 
 § 260. When AnsTwer may tend to disgrace or degrade the 
 ■Witness, or render him Infamous. — The authorities hold that, 
 as a general rule, a witness is not bound to answer, nor is a 
 court authorized to compel an answer, to an inquiry tending 
 to disgrace the witness, unless the evidence is material to the 
 issue.^ He cannot be compelled to answer if, by his testi- 
 mony, he will accuse himself of an immoral act," or where 
 his answer will tend to degrade his moral character,* or ren- 
 der him infamous.'' It follows that he cannot be asked (or 
 rather compelled to answer if he objects to the question) how 
 often he has been arrested ; ^ or whether he has ever been 
 convicted of a felony ; the answer tends to degrade his char- 
 acter, and the fact is provfible by higher evidence ; to wit, the 
 record of his conviction.'^ 
 
 But the privilege of refusing to answer is personal to the 
 witness, and is not in any sense the privilege of the party 
 calling him.^ And where the transaction as to which the 
 witness is interrogated constitutes the very fact in issue,^ or 
 forms any part of the issue to be tried,^" the witness will be 
 obliged to answer, however strongly it may reflect on his 
 character.^i So, where a witness voluntarily testifies to his 
 
 1 Commonwealth v.. "Willard, 22 ' Kirschner v. State, 9 Wis. 140. 
 Pick. (Mass.) 476. « Clarke u. Reese, 35 Cal. 89 ; 
 
 2 Conway v. Clinton, 1 Utah T. Brandon u. People, 42 N. Y. 265; State 
 215; State v. Staples, 47 N. H. 113; v. Ward, 48 Conn. .429. If the wit- 
 Re Lewis, 39 How. (N. Y.) Pr. 155; ness declines to answer on this ground, 
 Lohman v. People, 1 N. Y. 379. Com- he should not be compelled to say 
 pare State v. Patterson, 2 Ired. (N. C.) why he declines. Merluzzi v. Glee- 
 L. 346; Vaughan v. Paine, 2 Penn. son, 59 Md. 214. 
 
 (N. J.) 728 ; Sodusky v. M'Gee, 5 J. ^ Clark v. Reese, sujn-a. 
 
 J. Marsh. (Ky.) 621 ; Clement v. " Clementine v. State, 14 Mo. 112 ; 
 
 Brooks, 13 N. H-. 92. Weldon v. Burch, 12 111. 374; Taylor 
 
 3 Galbraith v. Eichelherger, 3 v. Jennings, 7 Robt. (N. Y.) 581. 
 Yeates (Pa.) 515. n Thus, in a prosecution for bas- 
 
 * People V. Rectory 19 Wend. (N. tardy, a witness, introduced by de- 
 
 Y.) 569. fendant to prove that the complainant 
 
 ' United States v. Dickinson, 2 had carnal, intercourse with another 
 McLean (U. S.) 325; United States about the time the child is alleged to 
 c/. Craig, 4 Wash. (U. S.) 729; Gran- have been begotten, may be compelled 
 nis V. Brandon, 5 Day (Conn.) 260; to testify whether Ae had carnal inter- 
 People V. Herrick, 13 Johns. (N. Y.) course with her about that time, she 
 82 ; State v. Bailey, 1 Penn. (N. J.) having denied that she had such inter- 
 415. course with any other than defendant 
 
 6 People V. Brown, 72 N. Y. 571; (Hill «. State, 4 Ind. 112) ; andwherc, 
 
 distinguishing 42 N. Y. 265, 270. in an action for debauching and en- 
 
428 EXAMINATION. [CHAP. XXL 
 
 own infamy for the purpose of fixing crime upon another, he 
 cannot claim the privilege when asked questions, the answers 
 to which may weaken his former testimony or remove its 
 weight entirely. But in such case the party putting the 
 question, the answer to which may tend to degrade the wit- 
 ness, must show affirmatively that the question is relevant.^ 
 
 In applying these principles, it has been held proper to ask 
 an unmarried woman, on cross-examination (although she 
 has a right to refuse an answer), whether she has any chil- 
 dren ;2 that a female witness might refuse to answer whether 
 she lived in a house of ill-fame ; ^ or whether she was not 
 generally reputed to be of unchaste habits, or was not, or 
 had not been, unchaste ; * that defendant, on trial for mur- 
 der, cannot be compelled, against objection, to testify on 
 cross-examination that he had frequented saloons, and at 
 divers times drank, played cards and billiards in saloons ; ^ 
 and that upon the cross-examination of a witness, it is im- 
 proper to ask him, and he need not answer, whether he has 
 been a convict in a state prison, as the record of his con- 
 viction is the best evidence, and should be produced, if the 
 party desires to prove the fact.^ But it has been held that 
 a juror may be examined as a witness to sustain a challenge 
 of himself to the favor, and will not be excused from stating 
 whether he has any prejudice against a religious sect, on the 
 ground that the answer would disgrace him.'^ In Pennsyl- 
 vania, the legislature can compel witnesses to answer ques- 
 tions, the answers to which may not show them to be criminal, 
 but may involve them in shame and reproach;^ and in North 
 Carolina the rule is laid down that questions put to a witness 
 
 ticing away the plaintiff's wife, the ^ People v. Lohman, 2 Barb. (N. 
 
 answer, among other things, alleged Y.) 216. Compare Clark v. Reese, 35 
 
 that the wife was compelled to leave Cal. 89. ■, 
 
 her husband's house by reason of his ^ Campbell u. State, 23 Ala. 44 ; 
 
 cruelty and immorality, he having Howell v. Commonwealth, 5 Gratt. 
 
 introduced a lewd woman into the (Va.) 664. 
 
 house and kept her there for the pur- ^ Thorpe v. Wray, 68 Ga. 359. 
 
 pose of sexual intercourse; it was * Howell v. Commonwealth, s«/)r«. 
 
 held, on examination of the plaintifE ^ Hayward v. People, 96 III. 492. 
 
 as a witness for the defendant before " Clement v. Brooks, 13 N. H. 92. 
 
 the trial, that he might be examined, ' People v. Christie, 2 Park. (N. 
 
 and compelled to answer in regard to Y.) Cr. 579. 
 
 the matters set up in the answer. ^ Kellar v. Eoberts, Bright. (Pa.) 
 
 Taylor v. Jennings, 7 Robt. (N. Y.) 109. 
 
 681. 
 
§ 260. J PRIVILEGE TO EEFUSE TO ANSWER. 4£9 
 
 on cross-examination are not generally objectionable as tend- 
 ing to disparage him, unless the answer may subject him to 
 indictment or to a statute penalty.^ In California, there is a 
 statute which provides that where the answer to a question 
 pertinent to the issue only tends to disgrace the witness, it 
 cannot be used against him, and therefore it is held that a 
 law compelling him to answer it does not " compel him to 
 criminate himself."^ 
 
 'State V. Davidson, 67 N. C. 2 Actof ApriI16th, 1855; Exparte 
 119. Bowe, 7 Cal. 184. 
 
CHAPTER XXII. 
 
 PRIVILEGE AS TO SELF-CRIMINATING TESTIMONY. 
 
 § 261. In General; and Herein of the Maxim "nemo tenetur seipsum accusare." 
 
 § 262. In what Cases the Privilege may be claimed. 
 
 § 263. When it may not be. 
 
 § 264. At what Stage of tlie Trial, and how it may be claimed. 
 
 § 265. The Privilege personal to the Witness. 
 
 § ;^66. Shall Court or Witness determine as to Tendency to criminate. 
 
 § 267. Effect of Refusal to answer ; Comments by Court or Counsel. 
 
 § 268. Effect of Pardon, Statute of Limitations, or Act protecting the Witness. 
 
 § 269. Waiver of the Privilege. 
 
 § 261. In G-eneral ; and Herein of the Maxim " Nemo tenetur 
 seipsum accusare." — Liberally translated, this maxim, which 
 is one of the oldest of the common law, means that any per- 
 son, whether' a party or stranger to the litigation, either in a 
 civil suit or criminal prosecution, may, if he sees fit, refuse 
 to answer any question put to him as a witness, either on 
 direct or cross-examination, the answer to which, if true, will 
 render or tend to render him punishable for crime, or dis- 
 grace him, or render him infamous. The soundness of the 
 principle introduced into the common law by this maxim has 
 seldom been questioned. It has been incorporated among the 
 guaranties of personal liberty and security in all the consti- 
 tutions both of England and America, and has received the 
 sanction of the most eminent jurists of both countries. Not- 
 withstanding this, of late years, at least one writer of ability 
 and profound thought has attacked this principle with great 
 vigor, denying its beneficent working under the present state 
 of society ; ^ while another, also a jurist of eminence and 
 
 1 "It is believed that the maxim prisoner was not allowed to produce 
 
 originally meant that no one should witnesses to prove his innocence ; and 
 
 be compelled, by torture, to criminate when he was baited, bullied and b^o^\- 
 
 himself . It was applicable to a time beaten, both by the king's counsel and 
 
 when suspected persons were put to the judge, without the privilege of 
 
 the rack for the purpose of extorting having the assistance of counsel to 
 
 confessions from them, and for refus- cross-examine the king's witnesses, or 
 
 ing to plead to an indictment. The to argue the merits of his defence to 
 
§ 261.] 
 
 SELF-CRIMINATING TESTIMONY. 
 
 431 
 
 unquestioned ability has defended this maxim with equal 
 earnestness, if with less vigorous language. •• 
 
 The rule derived from this maxim is ordinarily expressed 
 in the books as follows : " Where it reasonablj'' appears that 
 the answer will have a tendency to expose the witness to a 
 penal liability, or to any kind of punishment, or to a criminal 
 charge, the witness is not bound to answer the question. If 
 the fact to which he is interrogated forms but a link in the 
 chain of testimony which would convict him, he is protected 
 without being required 'to explain how he might be crimi- 
 nated by the answer, and if it is one of a series of questions, 
 the answers to all of which would establish his criminality, 
 he cannot be compelled to answer that or any of the series, 
 and the court is bound to instruct him whether his answer 
 would tend to criminate or expose him." ^ He may refuse to 
 
 the jury, certainly, in such a state of 
 the law, a maxim which allowed him 
 to keep his mouth shut, was a humane 
 maxim, and was justly prized. But 
 such a maxim has no place in an en- 
 lightened and humane system of juris- 
 prudence. We have outgrown it. 
 The reasons which brought it into 
 existence have passed away. It re- 
 mains little more than a rogue's 
 maxim. If a gang of thieves and 
 counterfeiters were to meet together 
 for the purpose of framing a code of 
 laws for their own protection, this 
 would he the first section of their code. 
 The just view of the matter is that 
 the purpose of all inquiry in courts of 
 justice is to elicit the truth, and that 
 no privilege of not telling the truth 
 ought to be accorded to him who, in 
 nearly all cases, is best acquainted 
 with the real facts of the case. An 
 accused person ought not to be com- 
 pelled by any covipulsory process to tes- 
 tify ; but the prosecution ought to be 
 allowed to call upon him to do so, and 
 if he refuse, the jury ought to be al- 
 lowed to consider his refusal as bear- 
 ing upon the probabilities of his guilt. 
 Moreover, if he voluntarily take the 
 witness stand in his own behalf, under 
 modern statutes allowing him to do 
 so, the state ought to have the privi- 
 lege of cross-examining him on the 
 
 whole case." Hon. S. D. Thompson, 
 in 5 Cr. L. Mag. 182. 
 
 ^ "It is an ancient maxim of the 
 law that no man can be compelled to 
 criminate himself — nemo tenetur seip- 
 sum. Neither can he be required to 
 give testimony tending in tliat direc- 
 tion, or to disclose a single link in the 
 chain of proof against him. This and 
 kindred maxims, having for their ob- 
 ject security to life, liberty and prop- 
 erty, are so inwrought into the tex- 
 ture and fabric of the common law, as 
 to cause it to breathe the spirit of 
 justice and to become the exponent 
 of an enlightened civilization. This 
 principle is grafted into our federal 
 and state constitutions, and fortified 
 by a long and uniform course of judi- 
 cial decisions. It has its foundation 
 in natural justice, and is analogous to 
 the right of self-defence." Chief Jus- 
 tice AVade, of Montana, in 2 Cr. L. 
 Mag. 313. 
 
 2 Lea V. Henderson, 1 Coldw. 
 (Tenn.) 146 ; Short v. State, 4 Harr. 
 (Del.) 568; Marshall v. Riley, 7 Ga. 
 367 ; Richman v. State, 2 Greene 
 (Iowa) 532; Robinson v. Neal, 5 T. 
 15. Mon. (Ky.) 212; Rutherford v. 
 Com., 2 Mete. (Ky.) 387; State v. 
 Marshall, 30 Mo. 400; Coburn v. 
 Odell, 10 Tost. (N. H.) 540; Janvrin 
 v. Scammon, 9 Id. fSO; Bank of Salina 
 
432 
 
 EXAMIXATION. 
 
 [chap. xxir. 
 
 answer a question put to him on the direct examination, and 
 which would not in itself tend to criminate, if the questions' 
 which might be rightfully put, on cross-examination, to test 
 the truth of such answer, might form a link in a chain of 
 evidence that would criminate him.^ So, also, he cannot be 
 compelled to answer as to any one act, the constant repeti- 
 tion of which would amount to a statute offence.^ 
 
 § 262. In what Cases the Privilege may be claimed. — The 
 witness may claim his privilege, where the object of questions 
 put to him is to implicate him in the compounding of a felony, 
 and thereby to discredit him ; ^ or to show that the witness 
 had been accused of stealing, or had been foirnd in possession 
 of stolen goods.* He is not bound to answer as to how he 
 testified on a former trial, relative to the matter in question, 
 if he objects to the inquiry ; ^ and an officer to whose care a 
 jury had been committed, cannot be compelled to testify to 
 the fact of the jury's separating after a cause was committed 
 to them and before they had agreed upon their verdict.® In 
 
 V. Henry, 2 Den. (N. Y.) 155 ; United 
 States V. Moses, 1 Cranch C. Ct. 170 ; 
 Same v. Lynn, 2 Id. 309; Sanderson's 
 Case, 3 Id. 638; Exp. Liiido, 1 Id. 
 445; United States c. Strother, 3 Id. 
 432; Short v. State, 4 Harr. (Del.) 
 568; Fries v. Bruglcr, 7 Hals. (N. 
 J.) 79; Stewart ^. Turner, 3 Edw. 
 (N. Y.) 458; People o. Mather, 4 
 Wend. (N. Y.) 229 ; Poole v. Perritt, 
 
 1 Spears (S. C.) 128 ; Ohamberlin v. 
 AVilson, 12 Vt. 491 ; Cook c. Corn, 1 
 Overt. (Tenn.) 340 ; State v. Edwards, 
 
 2 Nott & M. (S. C.) 13. And see 
 Southard u. Eexford, 6 Cow. (N. Y.) 
 254 ; Pickard v. Collins, 23 Barb. (N. 
 Y.) 444; Pleasant u. State, 15 Ark. 
 624; Higden v. Heard, 14 Ga. 255; 
 Eisher v. Ronalds, 16 Eng. L. & Eq. 
 417. A refusal to answer, though it 
 may effect the credit of the witness, 
 is not ground for any injurious infer- 
 ence against the party calling him. 
 Phealing u. Kenderdiiie, 20 Pa. St. 
 354. See also Sir J. Eriend's Case, 
 10 How. St. Tr. 1090 ; Lord Maccles- 
 field's Case, 16 Id. 1149 ; R. c. Lord G. 
 Gordon, 2 Doug. 593 ; Title v. Greret, 
 2 Ld. Raym. 1008; R. v. Hardy, 24 
 How. St. Tr. 720; Trial of De Beren- 
 
 ger and others, by Gurney, p. 195; 
 Cates o. Hardacre, 3 Taunt. 424 ; 
 Parkhurst ;;. Lowten, 2 Swanst. Ch. 
 216; R. V. Douglas, Car. & M. 193, 195. 
 As to the rule in the ecclesiastical 
 courts, see Swift v. Swift, 4 Hagg. 
 154; Sclmtcs v. Hodgson, 1 Add. 105, 
 110; in the courts of bankruptci-, 
 Bracey's Case, Comb. .390; Ex parte 
 Kirby, 1 Mont. & Mac. 212 ; Ex parte 
 Cossens, Buck. 540. 
 
 1 Printz V. Cheeney, 11 Iowa, 409. 
 
 2 French o. Venneman, 14 Ind. 
 282. 
 
 8 Pleasant v. State, 15 Ark. 624. 
 Thus a defendant in a bill of discov- 
 ery may decline answering such alle- 
 gations of the bill as may have a 
 tendency to subject him to a criminal 
 prosecution. Hayes v. Caldwell, 10 
 HI. 83. 
 
 * Howell V. Commonwealth, 5 
 Gratt. (Va.) 664. 
 
 ^ Mitchell V. Hinman, 8 Wend. 
 (N. Y.) 667 ; Bellinger v. People, Id. 
 595 ; Pickard v. Collins, 23 Barb. (N. 
 Y.) 444 ; State v. Blake, 25 Me. 350. 
 
 "5 Howard v. Cobb, 3 Day (Conn.) 
 309. S. P., Trammel v. Thomas, 1 Har. 
 & M. (Md.) 261. 
 
§ 262.] selp-crimik/ting testimony. 4S3 
 
 an action brought to recover, or upon a reference ordered to 
 ascertain, tlie damages sustained by plaintiff, hy tlie use by 
 defendant of plaintiff's trade-mark, defendant cannot be com- 
 pelled to answer questions showing or tending to show that 
 he has sold articles manufactured by himself, with a label 
 thereon imitating, resembling, or purporting to be the label 
 of plaintiff, which act would be an offence within the statute.^ 
 Where a father sues for the seduction of his daughter, the 
 issue involves the character for chastity of the daughter ; but 
 she cannot be interrogated as to acts of unchastity with 
 others, as this would tend to criminate herself.^ So, a female 
 witness on a trial for felony cannot be asked if, while she 
 lived with A, she was not accused of stealing or taking things 
 not her own ; and whether, when she left there, she was not 
 followed, and the things taken from her.^ And in an action 
 to try title to an office, a witness cannot be compelled to testify 
 whether 'he voted, when the evidence would tend to crimi- 
 nate him ; but in case of his refusal to answer, another wit- 
 ness may be permitted to testify that the first had told him 
 how he voted, and that he confessed himself to be an alien.* 
 
 Where a witness has testified that any judgment in the 
 case would be for his benefit, he is privileged from answering 
 on cross-examination a question as to whether he had gone 
 through bankruptcy without mention of this claim.^ And 
 where, in bankruptcy proceedings, it was in proof that the 
 bankrupt had recently lost money in a gambling-liouse kept 
 by B and M at a certain house, it was held that B and M 
 were privileged from answering whether they had resided 
 therein.^ For the same reason, a witness cannot be compelled 
 to testify to his retaining more than lawful interest out of 
 the amount of a security discounted by him, being indictable 
 in such case, for receiving usury contrary to the statute ; ^ and 
 the same premise holds good as to a witness who has been a 
 party to a champertous agreement.^ So, also, where a railway 
 
 ' Byass v. Smith, 4 Bosw. (N. Y.) 6 Rg Graham, 8 Ben. (U. S.) 419. 
 
 G79; Byass v. Sullivan, 21 How. (N. ' Bank of Salina v. Henry, 2 Den. 
 
 y.) Pr. 50. (N. Y.) 155; Henry v. Bank of Salina, 
 
 2 Reed v. Williams, 5 Sneed 3 Id. 593 ; Curtis v. Knox, 2 Id. 341 ; 
 
 (Tenn.) 580. Fellows ;;. Wilson, 31 Barb. (N. Y.) 
 
 8 Howell V. Commonwealth, 5 162. See also Short v. Mercier, 1 
 
 Graft. (Va.) 664. Eng. L. & Eq.-208. 
 
 ■1 State V. Hopkins, 23 Wis. 309. s Douglass v. Wood, 1 Swan 
 
 5 Taylor v. Melrvin, 94 111, 488. (Tenn.) .393. 
 
434 EXAMIXATIOlSr. [chap. XXII. 
 
 conductor was sued on a charge of collecting money from 
 the passengers and not accounting to the company therefor, 
 he was not required to answer whether he had passed persons 
 free in the cars, or whether he had sold tickets below the reg- 
 ular prices.^ 
 
 Where a witness who is testifying with regard to a conver- 
 sation claims and is allowed his privilege as to what he said 
 himself, on the ground that its disclosure would tend to 
 incriminate him, the whole conversation in which the witness 
 participated should -be excluded.^ 
 
 Again, it is erroneous, on a murder trial to compel the 
 defendant to furnish evidence against himself, by exhibiting 
 his amputated leg to the jury ; ^ and on a trial for stealing a 
 horse, a witness Avho states that he is possessed of the signs 
 and tokens by which horse-thieves are known and recognized 
 by each other, cannot be compelled to disclose said signs and 
 tokens.* So, also, a former proprietor of a mercantile agency 
 will be excused from answering as to communications made 
 by defendant as a correspondent of the agency to the witness, 
 on the ground that the answer might form a link to convict 
 the witness of libel.^ 
 
 The same rule of law which excuses a witness from 
 answering questions which may tend to convict liim of a 
 crime or misdemeanor, excuses him also from producing 
 books or papers, the contents of which may be used against 
 him, and tend to the same result; but it must be shown that 
 the books in question would have such a tendency." 
 
 § 263. In ■what Cases the Privilege may not be claimed. — It 
 has been held that a witness cannot refuse to answer, because 
 his answer might assist in pointing out to the prosecuting 
 
 1 Eaton V. Farmer, 40 N. H. 200. witness declined to answer. It was 
 
 In risher v. Itonalds (16 Eng. L. held tliat lie was not compellable to 
 
 & Eq. 417), a witness called to sup- answer, as the answer might have had 
 
 port a plea that the consideration for that tendency, and that the judge did 
 
 a hill was money lost at play, stated right in cautioning him, 
 
 that he was present wlien the money ^ pinkard v. State, 30 Ga. 757. 
 
 was alleged to have been lost in his ' Blackwell v. State, 67 Ga. 76; 
 
 own house, but saw no gaming. He s. c. 44 Am. Rep. 717; 3 Cr. L. Mag. 
 
 was then asked, " Was there a rou- 393. 
 
 lette table in the room "i " The judge * State v. "Wilson, 8 Iowa, 407. 
 
 told him that his answer miglit tend ^ Matter of Tappan, 9 How. (N. 
 
 to subject Iiim to a prosecution under Y.) Pr. 394. 
 
 the 8 and 9 Vict., ■.;. 109, § 2, for keep- c Byass v. Sullivan, 21 How. (N. 
 
 ing a common gaming-house, and the Y.) Pr. 50. 
 
§ 263.] SELF-CRIMINATING TESTIMONY. 435 
 
 officer sources of e-vidence to sustain a criminal suit against 
 himself, of which otherwise such officer could have had no 
 knowledge.^ If properly subpoenaed before the grand jury 
 to testify in regard to gaming, he cannot refuse to answer 
 touching his knowledge of gaming, although his answer may 
 show his own guilt.^ So, on a trial for liquor selling, a wit- 
 ness for the defendant having testified that, before the alleged 
 sale, he had purchased of the defendant all the spirits in the 
 defendant's shop, and paid therefor, and taken a lease of the 
 shop, and that the alleged sale was made by an agent on his 
 account, and not on account of the defendant, it was held 
 that the defendant had a right to ask the witness whether 
 the transaction with him was an actual hona fide, or only a 
 colorable and pretended • sale.^ Again, a witness for the 
 prosecution, in a trial for a riot, may be compelled to state, 
 on cross-examination, whether he is a member of a secret 
 society organized to repress a sect to which defendant be- 
 longs;* and a witness in a bastardy case may be compelled 
 to testify whetlier he had ever had sexual intercourse with 
 the relatrix, it being shown by other witnesses 'that the cir- 
 cumstances (a secret marriage) were such that the act would 
 not have been criminal.^ 
 
 In an early case in Missouri, it is said that a witness is 
 bound to testify, although he stands indicted for the same 
 offence as the person on trial, and although he says his testi- 
 mony will lead to his own conviction.^ This is clearly wrong ; 
 and a similar unwarrantable disregard of the constitutional 
 guaranty is shown in a recent case in Nevada, where, the 
 
 1 People V. Kelly, 24 N. T. 74. He declined to answer, on the ground 
 
 ^ Warner v. State, 13 Lea (Tenn.) that it is a misdemeanor by statute 
 
 52. In Ward v. State (2 Mo. 120), for a peace officer who knows of n 
 
 a witness was held guilty of contempt violation of the liquor law not to in- 
 
 for refusing to answer, before the form of the same, and that his answer 
 
 grand jury, the question "what person would criminate himself. It was helil 
 
 or persons have so bet on faro'!" tliat the question must be answered, 
 
 S. P., Bichman v. State, 2 Greene as it referred to a time so recent that 
 
 (Iowa) 532; Hirsch u. State, 8 Baxt. the answer, instead of criminating 
 
 (Tenn.) 89. him, was in accord with his duty under 
 
 ' Com. V. Kimball, 24 Pick. (Mass.) the statute. 
 366. InHuntiJ.McCalla(20Iowa,20), ^ People w. Christie, 2 Park. (N.Y.) 
 
 a constable was asked, when a witness Cr. 579. 
 
 before the grand jury, whether he ^ Ford v. State, 29 Ind. 541. Coni- 
 
 knew of any house in a certain place pare Hill v. State, 4 Ind. 112. 
 "where spirituous liquors' are sold." " State v. Douglass, 1 Mo. 527. 
 
436 EXAMINATION. [CHAP. XXII. 
 
 identity of the accused, on a criminal trial, being in question, 
 and a witness having testified that he knew him, and that he 
 had certain tattoo-marks, describing them, on his right fore- 
 arm, the trial judge compelled the accused, against his objec- 
 tion, to exhibit his tattooed arm to the jury ; and this action 
 of the court below was affirmed on appeal, one judge (fortu- 
 nately for the court) dissenting.^ The position taken in this 
 case is, in the opinion of the writer, not law. It is in direct 
 conflict with several decisions of courts entitled to as much 
 if not more respect than the tribunal which pronounced it.^ 
 
 § 264. At -what stage of the Trial, and in -what Manner the 
 Privilege may be claimed. — Ordinarily it makes no difference 
 in the right of the witness to protection that he has before 
 answered in part ; on the contrary, he is entitled to claim the 
 privilege at any step of the inquiry ;8 and it is not error to 
 refuse to instruct a witness that if he would avail himself of 
 his right to refuse to answer interrogatories, on the ground 
 that the answers might criminate him, he must make the 
 objection before answering anything upon that subject.* In 
 one case, it is held that the court will not compel a wit- 
 ness, who cannot testify in a cause without criminating him- 
 self, to be sworn ; ^ but in another, it is decided that where 
 a party calls his adversary as a witness, he has a right to 
 insist on his going on the stand to be sworn, although the 
 counsel for the witness state to the court that he will not 
 answer the questions that will be put to him, as the answers 
 would tend to criminate him. If the questions have that 
 tendency, the objection must be taken by the party himself, 
 on oath.^ 
 
 In an early New Hampshire case, a witness testified that 
 he was destitute of property, but admitted, after inquiry, 
 that he had had a considerable amount of money three or 
 four years previous. He then stated that his money had 
 
 1 State V. Ah Chuey, 14 Nev. 79. foot tracks). See also State i;. Jacobs, 
 
 2 Blackwell u. State, 3 Crim. L. 5 Jones (N. C.) L. 259. 
 
 Mag. 393 (where a new trial was » Rex v. Garbett, 3 Car. & K. 474. 
 
 granted, because defendant was erro- « Commonwealth v. Howe, 13 Gray 
 
 neously compelled to exhibit his am- (Mass.) 26. 
 
 putated leg) ; Doyns ». State, 63 Ga. s jjeale v. Coninghani, 1 Cranch 
 
 699, and Stokes v. State, 5 Baxt. C. Ct. 76. 
 
 (Tenn.) 619, (where the same relief « Boyle v. Wiseman, 29 Eng. L. & 
 
 was granted because the witness was Eq. 473 ; Powell's Ev. (4th ed.) 109. 
 
 compelled to place his feet in certain 
 
§ 265.J 
 
 SELF-CEIMINATING TESTIMONY. 
 
 437 
 
 gone to adjust matters wbicli he could not disclose without 
 subjecting himself to a prosecution for a crime. It was held 
 that it was competent to the witness to claim his privilege 
 at this stage of the examination.^ 
 
 In the chancery practice, the defendant may assert his 
 privilege to refuse to answer as to matters tending to crimi- 
 nate him, by demurrer, or by plea, or it may be set up in the 
 answer. The defendant cannot even waive this protection, 
 for the law is, in this regard, his guardian.^ 
 
 § 265. The Privilege Personal to the Witness. — The witness 
 himself is the only person who can claim the protection of 
 the rule against self-crimination. Neither the court, nor 
 either of the parties or their counsel, can object to the wit- 
 ness' answering on this ground. The question may be law- 
 fully put, however its tendency to draw out self-criminating 
 testimony, and the witness must decide for himself whether 
 he will assert his privilege, or waive it and answer.^ 
 
 1 Amherst v. HoUis, 9 N. H. 107. 
 
 2 Higdon V. Heard, 14 Ga. 255. 
 
 3 1 Greenl. Ev., § 451 ; 2 Phil. Ev. 
 783; Whart. Crim.Ev., § 465; Clarke 
 V. Eecce, 35 Cal. 89 ; Short v. State, 
 4 Harr. (Del.) 508 ; Sodusky ,: Mc- 
 Gee, 5 J. J. Marsh. (Ky.) 021 ; Com- 
 monwealth I). Shaw, 4 Cush. (Mass.) 
 594; State v. Wentworth, 65 Me. 234; 
 Roddy V. Finnegan, 43 Md. 490 ; State 
 V. Bilansky, 3 Minn. 246; Newcome 
 V. State, 37 Miss. 383 ; White v. State, 
 52 Miss. 216 ; State v. Foster, 3 Fost. 
 (N. H.) 348 ; Fries v. Burgler, 7 Halst. 
 (N-. J.) L. 79 ; Southard v. Re.xford, 
 Cow. (N. Y.) 254 ; People i'. Carroll, 
 3 Park. (N. Y.) Cr. 73 ; Ward v. Peo- 
 ple, 6 Hill (N. Y.) 144; People o. 
 Bodine, 1 Den. (N. Y.) 281 ; Piukard 
 V. Collins, 23 Barb. (N. Y.) 444 ; State 
 V. Patterson, 2 Ired. (N. C.) L. 346. 
 
 The privilege of refusing to answer 
 is the privilege of the witness, not of 
 the party ; for that reason, Lord Ten- 
 terden, C. J., refused to allow counsel 
 to support by argument the privilege 
 as belonging to the party whom he rep- 
 resented. Thomas v. Newton, M. & 
 M. 48, n. And see Mann. Dig. tit. 
 Witness, 222 ; E. c. Adey, 1 Mo. & R. 
 94 ; Marston !•. Downes, 1 A. & E. 34. 
 Upon a similar principle, it has been 
 
 ruled that a witness who objects to 
 the production of documents in his 
 possession has no right to have the 
 question of his liability to produce 
 argued by counsel retained by him 
 for that purpose. Doe d. Eowcliffe 
 V. Egremont (Exch.) 2 Mo. & R. 
 386. 
 
 This privilege must belong to the 
 witness on a principle of natural jus- 
 tice. The right to refuse to answer in 
 such cases is a right of self-defence ; 
 if he has a right to defend himself 
 against a criminal charge, he must 
 have it full right not to expose him- 
 self to such a charge by giving evi- 
 dence, and not to be accessory to his 
 own ruin. The judge, therefore, 
 always feels it to be his duty to ap- 
 prise a witness of his privilege, as 
 soon as a question is asked which 
 may place him in danger. See Rose- 
 well's Case, 10 How. St. Tr. 168 ; Sir 
 J. Friend's Case, 13 How. St. Tr. 15 ; 
 Stevenson v. Jones, Peake Ev. 179, n. 
 (5th ed.) ; R. v. De Berenger, Gurney, 
 194; Dixon v. Vale, 1 Car. & P. 278. 
 E. 0. Wheater, 2 Moo. C. 0. 45 ; Lord 
 Cardigan's Case, Gurney, 79. 
 
 In State v. Bilansky (3 Minn. 246), 
 it is said that though it is the privilege 
 of the witness alone to decline to an- 
 
438 EXAMINATION. [CHAP. XXII. 
 
 § 266. Shall Court or 'Witnesa determine as to Tendency to 
 criminate. — Whether it is the province of the court or of 
 the witness to pass upon the tendency to criminate, of the 
 questions which the witness refuses, under the protection of 
 his privilege, to answer, is a question upon which the decided 
 cases are not in entire harmony. 
 
 In England, the weight of authority gives the decision of 
 this question to the court, whose duty it is, while it protects 
 the witness in the due exercise of his privilege, to take care 
 that he does not, under the pretence of defending himself, 
 screen others from justice, or withhold evidence .which he 
 might safely give. The court will require to be satisfied that 
 the witness is acting an honest part, and that he may incur 
 danger by answering ; when satisfied of this, it will allow the 
 privilege ; to force him to reveal particulars, might lead to 
 a prosecution, against which he has a right to protect him- 
 self.^ And it would seem that this is the true doctrine ; for 
 as the witness is an interested party, his judgment liable to 
 bias and prejudice, and his decision of the matter open to the 
 influence of fear, or to the suspicion of bad faith, the rule 
 that no one should sit in judgment upon his own case ought 
 to deprive him of the right to decide the question. ^ 
 
 The earliest judicial utterance upon this subject in the 
 United States is that of Chief Justice Marshall in the trial 
 of Aaron Burr. He says: "It is the province of the court 
 to judge whether any direct answer to the questions which 
 may be proposed will furnish evidence against the witness. 
 If such answer may disclose a fact which forms a necessary 
 
 swer, yet it is the duty of the court to self. S. P., United States v. Darnaud, 
 tell the witness of the privilege, and 2 AVall. Jr. (U. S.) 143, 179. 
 after the witness has clearly signified '■ 2 Phil. Ev. * 933, and cases cited, 
 his design to avail himself of it, the ^ And such is the prevalent opinion 
 court may refuse to allow similar in this country. Richman v. State, 2 
 questions to be put, and if put, may Greene (Iowa) 532 ; State v. Duffy, 
 rule them out without consulting the 15 Iowa, 425 ; Commonwealth' v. Bray- 
 witness in each case. S. P., Southard nard, Thach. (Mass.) Cr. 146 ; Floyd 
 ;■. Re.xford (6 Cow. (N. Y.) 254). d. State, 7 Tex. 215. To the contrary. 
 But in Commonwealth v. Shaw (4 Warner v. Lucas, 10 Ohio, 336 ; State 
 Cush. (Mass.) 594), it is held that it r. Edwards, 2 Nott & M. (S. C.) 13; 
 is not the duty of the judge, upon the Poole v. Perritt, 1 Spears (S. C.) 128. 
 interposition of a party, and indepen- Compare also United States i>. Miller, 
 dent of any objection of the witness, 2 Crancli C. Ct. 247 ; United States v. 
 to inform the latter of the rule of law De Vaughn, Id. 501 ; Sanderson's 
 that he is not bound to criminate him- Case, 3 Id. fi.S8 ; United States v, Mc- 
 Carthy, 18 Fed. Rep. 87. 
 
§ 266.] 
 
 SELF-CEIMINATING TESTIMONY. 
 
 439 
 
 and essential link in the chain of testimony, which would b3 
 sufficient to convict him of any crime, he is not bound to 
 answer it so as to furnish matter for that conviction. In sucli 
 a case, the witness must himself judge what his answer will 
 be, and if he say on his oath that he cannot answer without 
 accusing himself, he will not be compelled to answer." i This 
 ruling of Chief Justice Marshall, that the witness is to judge 
 for himself whether his ansAver will expose him to prosecu- 
 tion, is adopted in a number of American cases.^ Other 
 cases, however, decide that it is for the court to determine, 
 after the claim of privilege made under oath, whether the 
 answer of the witness will tend to criminate him.^ 
 
 But the witness will not be compelled to explain, fully, 
 how his answer will tend to criminate him, if it reasonabl;^ 
 appears to the court that it will have that effect.* It has 
 also been held that although a witness is his own judge as to 
 whether his answer would criminate himself, he is, neverthe- 
 
 1 1 Burr's Trial, 245; followed in 
 Ward V. State, 2 Mo. 120, 123. 
 
 2 See, among others, Poole v. Perritt, 
 1 Spears (S. C.) 128; Floyd v. State, 
 7 Tex. 215 ; Cliamberlin v. Willson, 
 12 Vt. 491 ; People v. Rector, 19 
 Wend. (N. Y.) 569 ; Lister v. Boker, 
 6 Blackf. (Ind.) 439; Robinson v. 
 Neal, 5 Men. (Ky.) 212. See also, 
 Fisher u. Ronalds, 16 Eng. L. & Eq. 
 417 ; State v. Edwards, 2 Nott & M. 
 (S. C.) 13. 
 
 ^ Richmanti. State, 2 Greene (Iowa) 
 532;- State v. DufCy, 15 Iowa, 425; 
 Commonwealth «. Brayiiard, Thach. 
 (Mass.) Cr. Cas. 147 ; ICirschner v. 
 State, 9 Wis. 140. 
 
 In Reg. V. Garbett (2 Car. & K. 474), 
 a majority of the English judges were 
 of the opinion that if a witness asserts 
 his privilege, and there appears to be 
 ground for believing that his answer 
 would criminate him, he is not com- 
 pellable to answer ; and his answer, 
 if compelled to give it, must be con- 
 sidered to have been obtained by 
 compulsion, and cannot afterwards 
 be given in evidence against him. 
 
 In Regina v. Boyes (1 El. B. & E. 
 311; s. c, 9 W. R. 960), the judges 
 decided that a merely remote possi- 
 
 bility of legal peril to a witness from 
 answering a question is not sufficient 
 to entitle him to tlie privilege of not 
 answering. That to entitle .him to 
 tills privilege the court must see, 
 from the circumstances of the case 
 and the nature of the evidence which 
 he is called to give, tliat there is rea- 
 sonable ground to apprehend danger 
 to the witness from his being compelled 
 to answer. That the danger to be ap- 
 prehended must be real and appreciable, 
 with reference to the ordinary opera- 
 tion of law, in the ordinary course of 
 things. That the position that the 
 witness is sole judge as to whether 
 Ills evidence would bring him into 
 danger of the law, and that the state- 
 ment of his belief to that effect, if not 
 manifestly made mala Jide, should be 
 received as conclusive, is untenable. 
 But that if the fact of the witness 
 being in danger be once made to 
 appear, great latitude should be al- 
 lowed to him in judging for himself 
 of the effect of any particular ques- 
 tion. 
 
 * Janvrin v. Scammon, 9 Fost. (N. 
 H.) 280 ; Eaton v. Farmer, 46 N. H. 
 200. 
 
440 ■ EXAMINATION. [CHAP. XXII. 
 
 less, liable to an action, by the party, for a refusal to testifj-, 
 if his refusal be wilful and his excuse false ; ^ and that a wit- 
 ness cannot claim this privilege, on the ground that by crim- 
 inating others he may excite their vengeance, so that they 
 will give evidence which will criminate him.^ 
 
 The result of a comparison of the adjudications seems to 
 be that the preliminarj^ question. Can any answer, responsive 
 to the question, subject the witness to a criminal prosecution ? 
 must be decided by the court and not by the witness. If 
 the court holds the affirmative of that question, then the 
 witness has a right to decide whether the answer he would 
 give to the question would have such an effect.^ 
 
 § 267. Effect of Refusal to answer; Comments by Court or 
 pounsel. — The refusal of a witness to answer a question 
 which imputes discredit, generally has an effect unfavorable 
 to character, and excites suspicion — whether reasonably and 
 justly, must depend on the sort of person produced and the 
 question put. A man of high honor and character may be 
 disposed to refuse with scorn and indignation to answer a 
 question which he feels as an insult ; and to infer dishonor 
 from his silence might be the lieight of injustice.* 
 
 Accordingly, it is held that the refusal of a witness in a 
 criminal trial to answer a question, upon the ground that he 
 may thereby criminate himself, cannot be shown as a circum- 
 
 1 Warner v. Lucas, 10 Ohio, 336. jury, that the witness, having availed 
 S. P., Whart. Or. Ev., § 409; People himself of the privilege, was not 
 i'. Mather, 4 Wend. (N. Y.) 255. thereby at all discredited ; adding, 
 
 2 Ward v. State, 2 Mo. 120 ; Hirsch that had he himself been asked such 
 V. State, 8 Baxt. (Tenn.) 89. Com- a question, he should liave refused to 
 pare Kiernan v. Abbott, 3 Thomp. & give an answer, for the sake of the 
 C. (N. y.) 755; s. c, 1 I-Iun. 109. justice of the country, and to prevent 
 
 8 But see Emery's Case, 107 Mass. such an examination. See also Rose v. 
 
 172. Compare Lamb o. Munster, 13 Bakemore (1 Ry. & M. 384), where, it 
 
 Wash. L. Rep. 617 ; b. c, 2 Lan. L. witness having refused to answer 
 
 Rev. 370 ; Kirsehner v. State, 9 Wis. a question whether he had not pub- 
 
 140 ; State i . Lonsdale, 48 Wis. 348 ; lished a libel, and the counsel hav- 
 
 Winder v. Biffenderfer, 2 Eland ing pressed the jury to infer from 
 
 (Md.) 166 ; Mitchell's Case, 12 Abb. the refusal that he had done so, 
 
 (N. y.) Pr. 249. Abbott, C. J., interposed, saying no 
 
 * 2 Phil. Ev. *949; citing Milman such inference ought to be made, and 
 V. Tucker (I'cake Add. Cas. 222), that there was an end of the protec- 
 where a witness was asked whether tion of a witness, if a demurrer to the 
 he had not been convicted of forging question were to be taken as an ad- 
 coal-meters' certificates, and Lord mission of the fact inquired into. See 
 Ellenborough told liim he need not also AVatson's Case, 2 Stark. 153, 
 answer, and afterwards directed the 157. 
 
§ 268.] 
 
 SELir-CEIMINATING TESTIMONY. 
 
 441 
 
 stance against him in a subsequent trial for the same offence.^ 
 From the claim of such privilege, and its allowance, no infer- 
 ences whatever can be legitimately drawn injuriously affecting 
 either party ; ^ nor can the fact of such refusal be commented 
 on by counsel, or taken into consideration by the jury in 
 determining the weight to be given to the witness' testimony.^ 
 If the witness is testifying about a conversation in which he 
 participated, when he claims his privilege, if it be granted, 
 the whole conversation should be excluded.* 
 
 § 268. Effect of Pardon, Statute of Litnitations, or Act pro- 
 tecting the Witness. — (1) Pardon. A pardon duly authen- 
 ticated takes away the privilege of a witness in not answering, 
 so far as regards any risk of prosecution at the suit or in the 
 name of the crown.^ And an accomplice who has been led 
 
 1 State V. Bailey, 54 Iowa, 414. 
 But in Massachusetts, it was held 
 that, on an issue between seller and 
 puvcliaser of liquors, the refusal of 
 the seller to state whether he had a 
 license, is competent evidence against 
 him. Andrews u. Frye, 104 Mass. 
 234. 
 
 2 Phclin V. Kenderdine, 20 Pa. St. 
 354. 
 
 ' People V. Mannausau (Mich.) 26 
 N. W. Rep. 797. 
 
 * Pinkard v. State, 30 Ga. 757. 
 
 In Came v. Litchfield (2 Mich. 340), 
 which was an action for false impris- 
 onment, the defendant, being called 
 upon to testify, declined answering, 
 on the ground that the answer might 
 criminate him, or furnish a link in 
 the chain of evidence which might 
 tend to criminate him. The privilege 
 tlius claimed was allowed by the 
 court. In summing up, the plaintiff's 
 counsel commented upon the refusal 
 of the defendant to testify, as furnish- 
 ing evidence of his guilt to be con- 
 sidered by the jury. Whereupon 
 defendant's counsel asked the court 
 to restrain the counsel. The court 
 declined to interfere, observing " that 
 the refusal of the defendant to an- 
 swer the question propounded to him 
 on the ground stated, was not evi- 
 dence against him in the cause, yet 
 that it vras impossible to prevent the 
 
 jury from having the whole case, and 
 knowing what was done in open court 
 in the course of the trial before them, 
 or to prevent counsel from comment- 
 ing upon it." It was held on appeal, 
 that although the ruling of the court, 
 excluding any inference of guilt from 
 the refusal of the defendant to answer 
 the question, was correct, yet that 
 the suggestion made by the court 
 upon such ruling, in the hearing of 
 the jury, the effect of which might 
 be to deprive the defendant of the 
 benefit of the rule, was erroneous. 
 As to the application of this rule in 
 criminal cases where the defendant is 
 the witness who claims the privilege, 
 see infra, § 269, Subd. (2) 
 
 5 II. V. Boyes, 1 El. B. & E. 311. 
 This was an information for bribery, 
 filed by the attorney-general, by the 
 direction of the House of Commons. 
 One of the persons charged in the 
 information to have been bribed by 
 the defendant was called as a witness, 
 and, on his declining to answer any 
 questions with respect to the alleged 
 bribery, the counsel for the crown 
 handed him a pardon, under the great 
 seal, which the witness accepted, but 
 still declined to answer. It was held 
 that the possible risk of impeachment 
 by the House of Commons, notwith- 
 standing the pardon under the great 
 seal, according to the Act of Settle- 
 
442 EXAMINATION. [CHAP. XXII. 
 
 to give evidence for the government by an express or implied 
 promise of pardon, contracts to make a full statement, can 
 keep back nothing, and should be allowed no privileged 
 communications.! 
 
 (2) Statute of limitations. The same rule applies where 
 all right to prosecute for the offence in the commission of 
 which the answers of the witness may implicate him, is barred 
 by the statute of limitations. If the statutory period within 
 which such offence may be prosecuted has elapsed, the rule 
 cessat ratione cessat ipsa lex applies — the privilege is gone, and 
 the witness must testify .^ But it is no answer to a witness' 
 claim of privilege that the statute of limitations has run 
 against tlie offence, unless it appears, affirmatively, that no 
 proceedings to enforce a penalty were commenced within the 
 period of limitation.^ 
 
 (3) Statute 'protecting the witness. So, also, where the 
 legislative protection against a witness' evidence being used 
 against himself is as broad as the constitutional provision 
 against compelling a person to criminate himself, he can be 
 compelled to answer.* Thus, where the statute provides 
 that the testimony given by the witness shall in no instance 
 be used against him in any criminal prosecution for the same 
 offence, he is protected from self-accusation, and his common 
 law and constitutional privilege is secured to him.^ Such a 
 statute is frequently found in the books, protecting the testi- 
 mony of an accomplice in the offence of gambling;^ and it 
 is not unconstitutional,'' unless it compels the testimony 
 without affording protection against its future use against 
 the witness, in which case it clearly violates the constitutional 
 
 ment, 12 and 13 W. III., c. 2, § 3, was ^ La Fontaine v. Southern Under- 
 
 not a sufficient ground to entitle liim to writers' Assoc., 83 N. C. 132 ; State v. 
 
 tile privilege of not answering. Nowell, 58 N. H. 314 ; United States 
 
 1 Alderman v. People, 4 Mich. 414., v. McCarthy, 10 Hep. 388. 
 
 2 Weldon u. Burch, 12 111. 374 ; ^ State c. Quarles, 13 Ark. 307 ; 
 United States v. Smith, 4 Day (Conn.) Kneeland v. State, 62 Ga. 395; Ken- 
 121 ; Close v. Olney, 1 Den. (N. Y.) driek v. Commonwealth, 18 Rep. 
 319; Ployd v. State, 7 Tex. 215; (Fa.) 122; but does not cover the case 
 Wolfe V. Goulard, 15 Ahb. (N. Y.) Pr. of keeping a lottery. Temple v. Coni- 
 336 ; Moloney v. Dows, 2 Hilt. (N. Y.) monwealth, 75 Va. 892. 
 
 247. ' Wilkins ■;. Malone, 14 Ind. 153; 
 
 8 Bank of Salina v. Henry, 2 Den. State v. Nowell, 58 N. H. 314 ; Ivnee- 
 (N. Y.) 155 ; s. c, 3 Id. 593. land v. State, 62 Ga. 395. 
 
 * United States i'. Three Tons of 
 Coal, 6 Biss. (U. S.) 379. 
 
§ 269.] SELF-CRIMINATING TESTIMONY. 443 
 
 command that "no person shall be compelled to testify 
 against himself." ^ 
 
 § 269. 'Waiver of the Privilege. — (1) In general. The 
 privilege being a purely personal one, the witness may waive 
 it, and answer at his peril. From the nature of the right, it 
 may be inferred that he will be at liberty to answer, or 
 refuse to answer, any questions at his discretion ; and that 
 his consenting to answer some questions ought not to bar his 
 right to demur to others. Such is the English rule,^ subject 
 perhaps to the qualification that he should not be allowed, 
 by any arbitrary use of his privilege, to make a partial state- 
 ment of facts to tlie prejudice of either party .^ The general 
 American rule is the other way, i.e., if he voluntarily dis- 
 closes a part of a transaction, or conversation tending to 
 criminate hiui, he waives his privilege, and must answer 
 freely, and disclose the whole transaction or conversation ; * 
 unless the partial disclosure is made under an innocent mis- 
 ta,ke,^ or does not clearly relate to the transaction as to which 
 he refuses to testify.^ If he voluntarily states a fact, he is 
 compellable to state how he knows it, even though in so doing 
 he may criminate himself.'^ If his privilege is disregarded, 
 and he is compelled to answer, what he says cannot be used 
 against him.^ 
 
 1 Ind. Her. Stat. 1876, p. 463, § 14 ; quiry. In this case the judges refused 
 State V. Enochs, 69 Ind. 314. to follow East v. Chapman and Dixon 
 
 In Tennessee, it is lield that the v. Vale, 
 provisions of § 5089 of the Code, pro- * People u. Freshour, 55 Cal. 375 ; 
 
 viding for the exemption of a witness Brown u. Brown, 5 Mass. 320 ; Foster v. 
 
 from a prosecution for any offence in Pierce, 11 Cusli. (Mass.) 437 ; Youngs 
 
 relation to which he has testified be- v. Youngs, 5 Eedf. (N. Y.) 505 
 
 fore the grand jury, does not extend Chamberlain v. Willson, 12 Vt. 491 
 
 to a grand juror, who communicates Norfollc v. Gaylord, 28 Conn. 309 
 
 to his fellow-jurors his knowledge of Commonwealth v. Pratt, 126 Mass 
 
 a crime having been committed ; and 462 ; State v. Nichols, 29 Minn. 357 
 
 in doing so, voluntarily implicates Horrell v. Parish, 26 La. Ann. 6 
 
 himself. State u. Hatfield, 3 Head State v. K , 4 N. H. 562. 
 
 (Tenn.) 231. 6 jjayo u. Mayo, 119 Mass. 290. 
 
 2 See Paxton v. Douglas, 19 Ves. ^ Coburn v. Odell, 10 Post. (N. H.) 
 295 ; R. V. Slaney, 5 Car. & P. 214. 540, 
 
 3 See East v. Chapman, Moo. '& M. ^ State v. K , 4 N. H. 562 ; State 
 
 47 ; Austin v. Poiner, 1 Sim. 348 ; v. Blake, 25 Me. 350 ; Commonwealth 
 
 Dixon V. Vale, 1 Car & P. 279. But v. Price, 10 Gray. (Mass.) 472. 
 compare Garbett's Case, 1 Den. C. C. ^ Horstman v. Kaufman, 97 Pa. St. 
 
 236, 238, wliere it is said that it makes 147. 
 
 no difference to the right of tlie wit- In chancery, it seems, the privilege 
 
 ness to protection, that he has chosen cannot be waived. Higdon v. Heard, 
 
 to answer in part ; that he may claim 14 Ga. 255. 
 his privilege at any stage of the in- 
 
414 EXAMINATION. [CHAP. XXH. 
 
 (2) Where, in a criminal case, the accused is the witness. 
 Where the defendant on trial for a criminal offence elects 
 to become a witness in his own behalf, and his examination- 
 in-chief develops a line of inquiry towards which pertinent 
 questions are directed during the cross-examination, he hav- 
 ing voluntarily testified at :first, cannot now, when pressed, 
 retire upon his privilege and escape. He has, by assuming 
 the position of a witness, waived his privilege against self- 
 crimination.^ In most jurisdictions the cross-examination, 
 like that of any other witness, must be limited to the mat- 
 ters opened on the direct examination,^ but in some, particu- 
 larljr Massachusetts, the rule is that the cross-examination of 
 any witness, even though he be the defendant in a criminal 
 case, may extend to all matters pertinent and material to the 
 issue, whether referred to on the direct examination or not.^ 
 
 Whatever rule be followed, practically, "it will be found 
 extremely difficult for the accused to so regulate his testi- 
 mony as to be of the least avail to him and yet screen himself 
 from cross-examination concerning matters material to the 
 general issue of his guilt or innocence. ' Between two -stools 
 one is sure to fall,' and if the defendant would hope to create 
 a favorable impression upon the minds of the jury, his man- 
 ner must seem natural and unrestrained, his testimony appear 
 a full, frank, complete narrative of the facts. A garbled 
 statement would surely exert an adverse influence. To ac- 
 complish this he must needs open wide the door for scrutiny ; 
 for whenever it stands at the least crack, the courts permit 
 the prosecution to introduce the lever of cross-examination 
 to force it open to its full width." * 
 
 (3) Where the witness is an accomplice of the accused. An 
 accomplice who has been led to give evidence for the gov- 
 ernment by an express or implied promise of pardon con- 
 tracts to make a full statement, can keep back nothing, and 
 
 1 State V. Wentworth, 65 Me. 234; 114 Mass. 285; Com. <,■. Bonner, 97 
 State V. Fay, 43 Iowa, 651; State v. Mass. 587 ; Com. i;. Morgan, 107 Mass. 
 HuflE, 11 Nev. 17; State u. Ober, 52 199; 'Com. v. Curtis, 97 Mass. 574; 
 N. H. 459; Gill v. People, 5 T. & C. Com. v. Tolliver, 119 Mass. 312. See 
 (N. Y.) 308; Roddy v. Finnegan 43 also McGarryw. People, 2 Lans. (N.Y.) 
 Md. 490. 227 ; Brandon v. People, 42 N. Y. 265 ; 
 
 2 Supra, § 246. People v. Brown, 72 N. Y. 571 ; People 
 ' Supra, § 247 ; Com. i-. Lannan, u. Casey, Id. 393. 
 
 13 Allen (Mass.) 563; Com. v. Mul- * R. V. W. Du Bois, in 4 Cr. L. 
 
 leu, 97 Mass. 545; Com. v. Nichols, Mag. 339. 
 
§ 239.] SELF-CEIMINATING TESTIMONY. 445 
 
 should be allowed no privileged communications ; ^ but he 
 need not disclose his crimiuality in other cases, and may 
 claim his privilege at any stage of the collateral inquiries ; ^ 
 and it is not error for the court to instruct him as to his 
 rights touching his examination, or to state to him that the 
 testimony might be used against him, and that the announce- 
 ment made by the prosecutor that his testimony would not 
 be so used, might not be regarded by the judge before whom 
 he might be tried.^ 
 
 1 Alderman v. People, 4 Mich. 414 ; ^ Pitcher u. People, 16 Mich. 
 
 Lookett V. State, 63 Ala. 5 ; Com. v. 142. 
 
 Price, 10 Gray (Mass.) 472 ; Foster 3 Marler v. State, 68 Ala. 580. 
 V. People, 18 Mich. 266. 
 
CHAPTER XXIII. 
 
 PRIVILEGED COMMUNICATIONS. 
 
 § 270. In General ; Scope of this Chapter. 
 
 § 271. Between Counsel and Client. 
 
 § 272. Between Physician and Patient. 
 
 § 273. Between Clergyman and Layman. 
 
 § 274. Between Husband and "Wife. 
 
 § 275. Judges and Arbitrators. 
 
 §276. State Secrets ; Communications between Officials. 
 
 § 277. Secrets of the Jury-Room. 
 
 § 278. Other Cases. 
 
 § 270. In General; Scope of this Chapter. ^ — No attempt is 
 here made to present all the adjudications upon privileged 
 communications, many of them belonging more properly to 
 the general subject of evidence, than to the more limited one 
 of ivitnesses ; but a selection has been made of such cases as 
 seemed to the writer to furnish the rules governing the com- 
 petency of attorneys, physicians, clergymen, judges, arbi- 
 trators, public officers, and jurors, as witnesses, to testify in 
 relation to facts coming to their knowledge, as such ; as well 
 as the right of either party to a valid marriage, to divulge 
 upon the witness-stand a communication had with the other 
 during the existence of such marriage. For many decisions 
 on the general subject not cited here, the reader is referred 
 to the extended works on evidence, of Greenleaf, Phillipps, 
 Taylor, Best, and others. 
 
 § 271. Between Counsel and Client. — Where an attorney 
 is consulted on business within the scope of his profession, 
 the communications between him and his client are strictly 
 confidential ; and the attorney should neither be required nor 
 permitted, by any judicial tribunal, to divulge them against 
 his client, if the latter objects to the evidence.^ 
 
 The entire professional intercourse, whatever it may have 
 consisted in, should be protected by profound secrecy. Hence 
 professional communications of every character are forbidden 
 
 1 Murray !;.Dowling,lCranch,C.C. (Ind.) 465; Winsor v. Clark, 39 Me. 
 161; Jenkinson v. State, 5 Blackf. 428. 
 
§ 271. J PRIVILEGED COMMUNICATIONS. 447 
 
 to be given in evidence against a client by an attorney.^ 
 And siicli communications will be protected from disclosure, 
 notwithstanding the absence of any injunction of secrecy .^ 
 By professional communications are meant, not only what the 
 client may have said to his attorney as such, but every fact 
 which the attorney has learned only in his character as 
 attorney.^ 
 
 But a lawyer may be compelled to disclose by whom he 
 was employed in a cause, and that he was instructed by one 
 person to follow the directions of another in the prosecution 
 of the business, although tlie knowledge was acquired by 
 confidential consultations as counsel and clients.'* So he may 
 be compelled to answer as to the state of a paper that has 
 come into his hands.^ And a communication made to him by 
 a debtor, who applied to him to draw up a mortgage deed, 
 merely to explain his motives, no legal advice as to the effect 
 of the conveyance being asked or given, is not a privileged 
 communication which the attorney can refuse to testify to.'' 
 So, also, terms of compromise, offered by a counsel to the 
 creditors of his client, are not confidential, and must be dis- 
 closed.^ And the same is true of a communication volun- 
 tarily made to counsel, after he has refused to be employed 
 by the party making it ; ^ or after his employment as attorney 
 
 1 State V. Douglass, 20 W. Va. 770. in fact. McLaughlin ,-. Gilraore, 1 
 
 When he can testify yor his client, see 111. App. 563; Holman v. Kimball, 22 
 
 Chappell K. Smith, 17 Ga. 68; Hines Vt. 555; Matthew's Estate, 4 Am. 
 
 V. State, 26 Ga. 614 ; Foster v. Hall, L. J. n. s. 356. 
 
 12 Pick. (Mass.) 89; Hatton v. Rob- 8 State v. Douglass, 20 W. Va. 770. 
 
 inson, 14 Id. 416, 421. See Green- ' Brown v. Payson, 6 N. H. 443 ; 
 
 ough V. Gaskell, 1 My. & K. 102, 103; Gower v. Emery, 6 Shep. (Me.) 70. 
 
 Cleave v. Jones, 8 Eng. L. & E. 554 ; In Louisiana, an attorney may be 
 
 Robson V. Kemp, 5 Esp. 52. called and compelled to testify against 
 
 ^ Wheeler u. Hill, 4 Shep. (Me.) his client in respect to matters not 
 
 329 ; Brand v. Brand, 39 How. (N. Y.) confidential. Cox. v. Williams, 5 
 
 Pr. 193. See, also, Hewitt v. Prime, Mart. (La.) 139; Reeves v. Burton, 
 
 21 Wend. (N. Y.) 79 ; Blunt v. Tunts, 6 Id. 283. See also Howard u. Cop- 
 
 Anth. (N. Y.) 180; Re Bellis, 38 ley, 10 La. Ann. 504. 
 
 How. (N. Y.) Pr. 79. Communica- 6 Baker v. Arnold, 1 Cai. (N. Y.) 
 
 tions made to a person not an attor- 258. 
 
 ney at law, of the party, though made " Hatton i. Robinson, 14 Pick, 
 
 under the obligations of secrecy, are (Mass.) 416. See also Root v. 
 
 not privileged. Sherman u. Sherman, Wright, 21 Hun (S. Y.) 344. 
 
 1 Root (Conn.) 486; Mills v. Gris- ' McTavish v. Denning, Anth. 
 
 wold, Id. 383; Calkins v. Lee, 2 Id. (N. Y.) 113. 
 
 363 ; Dixon i'. Parmeloe, 2 Vt. 185. 8 Setzar v. Wilson, 4 Ired. (N. C.) 
 
 The rule does not apply to attorneys L. 501. But if the communication is 
 
448 
 
 EXAMINATION. 
 
 [chap. XXIIl. 
 
 has ceased,^ and, at least in Georgia, as to 'facts which occurred 
 in another case previous to his employment in the case on 
 trial.^ So, also, the attorney may divulge where the party 
 who consulted him waives the privilege ; and this, although 
 the interest in the subject-matter of the confidential com- 
 munication has passed to a third person, who objects to the 
 disclosure.^ 
 
 In what cases an attorney may be compelled to produce 
 papers in his possession, belonging to his client, see the 
 authorities cited below.* 
 
 The prdtection extends to professional communications 
 conveyed to either party by the otljer through an interme- 
 diary channel, such as an interpreter,^ or agent employed by 
 the attorney,^ such person being as much bound to secrecy as 
 the attorney himself. Thus the rule of secrecy extends to an 
 attorney's clerk.'' 
 
 But public policy has engrafted on this general rule an 
 important exception — the communication, to be privileged, 
 must relate to a lawful object ; thus it has been quite re- 
 cently held that communications between a solicitor and his 
 
 made to the attorney under the erro- 
 neous impression that lie lias con- 
 sented to act as such, it is privileged. 
 Smith l: Fell, 2 Curt. (Mass.) 067. 
 
 1 1 Greenl. Ev. (14 ed.) § 244. 
 
 2 Churchill r. Corker, 25 Ga. 479; 
 Sharman v. Morton, 31 Ga. 34. The 
 privilege seems to be that of the attor- 
 ney. Willis v. State, 60 Ga. 613. 
 
 ^ Benjamin v. Coventry, 19 Wend. 
 (N. Y.) 353 (Bronson, J., dissenting). 
 Compare Bacon v. Frisbic, 80 N. Y. 
 394. Production of fragmentary parts 
 of an attorney's letter by the client is 
 a waiver of privilege as to the whole 
 letter. West. Union Tel. Co. i . B. & 
 0. Tel. Co., 26 Fed. Rep. 55. That 
 the act of the client in going on the 
 stand as a witness is a waiver, see 
 Woburn v. Henshaw, 101 Mass. 193 ; 
 but he may still object to the dis- 
 closure by the lawyer, even though 
 he called him as a witness himself. 
 Montgomery r. Pickering, 116 Mass. 
 227. That going on the stand is not 
 a waiver by the client, see Hemenway 
 V, Smith, 28 Vt. 701 ; Bigler </. Rey- 
 
 her, 43 Ind. 112; Barker v. Kuhn, 38 
 Iowa, '395; State a. White, 19 Kan. 
 445; Duttenhoeffer v. State, 34 Ohio 
 St. 91. 
 
 * Andrews u. Ohio &c. R. R. Co., 
 14 Ind. 109; Anonymous, 8 Mass. 
 370 ; Mitchell's Case, 12 Abb. (N. Y.) 
 Pr. 249; People v. Sheriff of New 
 York, 29 Barb. (N. Y.) 622 ; Coveney 
 V. Tannahill, 1 Hill (N. Y.) 33; Com. 
 V. Moycr, 15 Phil. (Pa.) 397. 
 
 •> Du Barre v. Lavette, Peake Cas. 
 77, explained in 4 T. R. 750 ; Jackson 
 V. French, 3 Wend. (N. Y.) 337; 
 Parker v. Carter, 4 Munf. (Va.) 273. 
 
 '^ Parkins v. Hawkshaw, 2 Stark. 
 239; Bunbury v. Bunbury,- 2 Beav. 
 173; Steele .,■. Stewart, 1 Phil. Ch. 
 471 ; Carpmael v. Powis, 9 Beav. 16. 
 
 ' Taylor v. Foster, 2 Car. & P. 195 ; 
 R. V, Upper Boddington, 8 Dow. & 
 Ry. 726 ; Jackson v. French, 3 ATend. 
 (N. Y.) 337 ; Power v. Kent, 1 Cow. 
 (N. Y.) 211 ; Mills v. Oddy, 6 Car. & 
 P. 728 ; Bowman v. Norton, 5 Id. 177. 
 And see generally 1 Phil. Ev. (5 Am. 
 Ed.)*130n. 
 
§ 272.] PRIVILEGED COMMUNICATIONS. 449 
 
 client with a view to obtaining legal assistance in the com- 
 mission of a crime, are not privileged, even though the solic- 
 itor is ignorant of such intent on the part of his client.^ Such 
 communications partake of the nature of a conspiracy, or 
 attempted conspiracy, and it is not only lawful, but under 
 certain circumstances becomes the duty of the attorney to 
 divulge them. " The relation of attorney and client cannot 
 exist for the purpose of counsel in concocting crimes. The 
 privilege does not exist in such cases." ^ 
 
 § 272. Between Physician and Patient. — The common law 
 does not extend the privilege we are examining to physicians 
 or surgeons, so they and their patients are confined to stat- 
 utory protection, which in many of the States is as full as 
 exists between attorney and client ; ^ nor is it necessary that 
 the relation of physician and patient should actually exist, 
 if the visit was made under such circumstances as to lead the 
 party visited to suppose that the visit was professional, and 
 to act on it as such.* Under the New York statute the pro- 
 tection is held to extend to information received by eye or 
 ear : from observation of the patient's symptoms, from the 
 patient himself, or from the statements of others around 
 him. 5 
 
 It needs not that an examination of a patient should be 
 private, to exclude information so derived; nor is it required 
 that it should be shown, in the first instance, by formal proof, 
 that the information was necessar}'' to enable the physician to 
 prescribe;® and even the death of the patient does not re- 
 move the prohibition;'' in such an event the privilege is not 
 limited to the personal representative of the patient, but an 
 
 1 E. V. Cox, 6 Cr. L. Mp.g. 569, Assoc, v. Beck, 77 Ind. 203 ; s. c, 40 
 reviewing English cases; People v. Am. Rep. 295; Gartside v. Conn. 
 Van Alstine, Id. 715. Mut. Life Ins. Co., 76 Mo. 446; s. c, 
 
 2 Cox V. Van Alstine, supra, citing 43 Am. Rep. 765; Linz v. Massachu- 
 the American cases on this point. setts Ins. Co., 8 Mo. App. 363. 
 
 3 See the rgsumg of the statutes, ^ Grattan v. Metropolitan Life Ins. 
 supra, Chap. VIII. ; Grattan v. Na- Co., 80 N. Y. 281. Compare Grattan 
 tional Life Ins. Co., 15 Hun (N. Y.) v. National Life Ins. Co., 15 Hun 
 74. (N. Y.) 74; Collins v. Mack, 31 Ark. 
 
 * People V. Stout, 3 Park. (N. Y.) 684. 
 
 Cr. 670. ' Grattan v. Metropolitan Life Ins. 
 
 ^ Grattan v. Metropolitan Life Ins. Co., supra. See, also, Same v. Same, 
 
 Co., 80 N. Y. 281 ; s. c, 24 Hun, 43 ; 24 Hun (N. Y.) 43; Edington c: Mu- 
 
 Edington v. Mutual Life Ins. Co., 67 tual Life Ins. Co., 67 N. Y. 185. 
 N. Y. 185; Masonic Mut. Benefit 
 
450 
 
 EXAMINATION". 
 
 [chap. XXIII. 
 
 assignee may exercise it, and his right is not affected by the 
 decease of the patient.^ 
 
 1 Edington v. Mutual Life Ins. Co., 
 
 In Captill V. Verback (58 Iowa, 98), 
 a breach of promise case, a physician 
 called for the defence was asked if, at 
 ■a, certain time previous to the trial, 
 plaintiff had consulted him as to get- 
 ting rid of a child with which she was 
 pregnant. It was held, there being 
 no evidence of unlawful purpose, that 
 the communication was privileged. 
 
 So, in an action on a life insurance 
 policy, statements in the proof of 
 death, made by the physician of the 
 insured, as to the previous complaints 
 and ailments of the insured, are priv- 
 ileged communications, and not ad- 
 missible to show tliat the answers 
 made to certain questions in the ap- 
 plication for insurance were false. 
 Dreier v. Continental Life Ins. Co., 
 24 Fed. Rep. 670. 
 
 In "Westover u. JEtna Life Ins. 
 Co., 1 N. East. Eep. 104 ; s. c, 14 Ins. 
 L. Jour. 522, the court, speaking of 
 these statutes, say : " These provis- 
 ions of law are founded upon public 
 policy, and in all cases where they 
 apply, the seal of the law must for- 
 ever remain, until it is removed by 
 the person confessing, or the patient, 
 or the client. Edington v. Mutual 
 Life Ins. Co., 07 N. Y. 185; Edington 
 V. iEtna Life Ins. Co., 77 N. Y. 564 ; 
 Pierson v. People, 79 N. Y. 424 ; Grat- 
 lan V. Metropolitan Life Ins. Co., 80 
 N. Y. 281. ... In Pierson v. The 
 People, it was said ; ' The plain pur- 
 pose of this statute was to enable a 
 patient to make known his condition 
 to his physician without the danger 
 of any disclosure by him which would 
 annoy the feelings, damage the char- 
 acter, or impair the standing of the 
 patient while living, or disgrfice his 
 memory when dead.' In Gratton b. 
 Metropolitan Life Ins. Co., Danforth, 
 J., said : ' The ease before us is not 
 where the witness was called in for 
 the first time after the death of the 
 patient, but one where the lips of the 
 physician were sealed during the life 
 
 of the patient, and where, although 
 by death he loses the patient, his lips 
 must remain closed. It was held un- 
 der the old law that the seal must re- 
 main until removed by the patient, 
 and it is now so provided by statute.' 
 The purpose of the law would be 
 thwarted, and the policy intended to 
 be promoted thereby would be de- 
 feated, if death removed the seal of 
 secrecy from the communications and 
 disclosures which a patient should 
 make to his physician, or a client to 
 his attorney, or a penitent to his 
 priest. Whenever the evidence comes 
 within the purview of the statutes, it 
 is absolutely prohibited, and may be 
 objected to by any one unless it be 
 waived by the person for whose ben- 
 efit and protection the statutes were 
 enacted. After one has gone to his 
 grave, the living are not permitted to 
 impair his fame and disgrace his mem- 
 ory by dragging to the light commu- 
 nications and disclosures made under 
 the seal of the statutes. An execu- 
 tor or administrator does not repre- 
 sent the deceased for the purpose of 
 making such a waiver. [But see 
 Fraser v. Jennison, 42 Mich. 206.] 
 He represents him simply in refer- 
 ence to rights of property, and not in 
 reference to those riglits which per- 
 tain to the person and character of 
 the testator. If one representing the 
 property of a, patient can waive the 
 seal of the statute because he repre- 
 sents the property, then the right to 
 make the waiver would exist as well 
 before death as after, and a general 
 assignee of a patient for the purpose 
 of protecting the assigned estate could 
 make the waiver ; and yet it has been 
 held that an assignee in bankruptcy 
 is not empowered to consent that the 
 professional communications of his 
 assignor shall be disclosed. Bowman 
 1-. Norton, 5 Car. & P. 177. In Eding- 
 ton V. Mutual Life Ins. Co., 67 N. Y. 
 185, it was not decided nor stated that 
 a personal representative could waive 
 the protection of the statutes, but it 
 
§ 273.] PRIVILEGED COMMUNICATIONS. 451 
 
 But this, like the client's privilege, may be waived by the 
 patient.^ The communication, also, to be privileged, must 
 have been necessary to enable the physician or surgeon to 
 prescribe or act in a professional capacity ;2 but this will 
 ordinarily be presumed, and need not be proved in the first 
 instance.^ 
 
 In probate contests, and other testamentary cases, the stat- 
 utory provision seems not to apply, and the attending physi- 
 cians of the deceased may disclose information professionally 
 obtained.* So, also, a physician may be compelled to testify 
 as to the result of a post mortem examination made by him.^ 
 And the rule is confined to a regular physician on the. one 
 hand (and does not extend to communications made to a stu- 
 dent in his office, unless shown to fall within the statute) ; " 
 and to the patient himself, on the other (not covering the case 
 of communications to the physician by a third person, apply- 
 ing for medicines to be administered to the patient).^ 
 
 § 273. Bet-ween Clergyman and Layman. — Here, too, the 
 common law places no obstacle in the way of full disclosure, 
 but in many jurisdictions there are also statutory provisions 
 to the effect that a clergyman or other minister of anj' religion 
 shall not be allowed to disclose a confession made to him in 
 his professional character, in the course of discipline enjoined 
 by the rules or practice of the religious body to which he 
 belongs.^ But a clergyman is a competent witness against a 
 defendant charged with a crime, as to any confession thereof 
 by the latter, not made in the course of discipline enjoined 
 
 was held that the personal representa- ' Grattan v. Metropolitan Life Ins. 
 tive or assignee of the patient could Co., 80 N. Y. 281. 
 make the objection to evidence for- * Allen v. Public Administrator, 1 
 bidden by the statute ; and the opin- Bradf. (N. Y.) 221 ; Staunton v. Par- 
 ion might have gone further, and held ker, 19 Hun (N. Y.) 55; Whelpley 
 that any party to an action could v. Loder, 1 Demarest (N. Y.) 368. 
 make the objection, as the evidence This has been recently held tlie 
 in itself is objectionable unless the other way in an unreported case in the 
 objection be waived by the person New York Court of Appeals, 
 for whose protection the statutes ^ Summers v. State, 5 Tex. App. 
 were enacted." 365. 
 
 1 Fraser v. Jennison, 42 Mich. 206 ; ^ Kendall v. Grey, 2 Hilt. (N. Y.) 
 Grand Rapids &c. R. R. Co. v. Mar- 300. 
 
 tin, 41 Id. 667 ; Scripps v. Foster, Id. ' Babcock v. People, 15 Hun (N. 
 
 742 ; Territory v. Corbett, 3 Mont. T. Y.) 347. 
 
 50. * See supra. Chap. VIII., for the 
 
 2 Collins V. Mack, 31 Ark. 684 ; text of these statutes. 
 Campan v. North, 39 Mich. 606. 
 
452 EXAMINATION. [CHAP. XXIIT. 
 
 by the church.^ And statements made to an elder, who is 
 also a deacon in the church, and who is engaged in looking 
 up evidence in support of charges against a member of the 
 church, are not so made.^ 
 
 § 274. Between Husband and Wife. — As we have stated in 
 a former chapter,^ at common law, neither the husband nor 
 the wife is a competent witness either for or against the other; 
 but this rule has been greatly relaxed in many jurisdictions, 
 and almost, if not entirely, abrogated in others. Still, inas- 
 much as the doctrine of privileged communications rests, as 
 applied to husband and wife, on grounds of its own, the 
 various enabling statutes, so called, have not much changed 
 the law in this respect.* Mr. Greenleaf says : " The com- 
 munications between husband and wife are privileged, inde- 
 pendently of the ground of interest and identity which 
 precluded the parties from testifying for or against each 
 other." ^ Thus, a wife cannot testify either for or against her 
 husband, as to papers consigned by him to her care, and kept 
 exclusively by her under lock and key;® or to the state of 
 his accounts kept by her, from original memoranda, made bj^ 
 him from day to day.^ 
 
 As to whether communications made in the presence of 
 third persons, are equally privileged, there is a division of 
 judicial opinion.^ If the communication is in writing and 
 
 1 Gillooley v. State, 58 Ind. 182; religious duty, and that to compel 
 People V. Gates, 13 Wend. (N. Y.) the disclosure, by means of punisli- 
 311. ment, would be in effect to punish the 
 
 2 Knight I'. Lee, 80 Ind. 201 ; Ind. party for religious opinions. Ration- 
 Acts, 1879, p. 245. ale Judicial Evidence, Bk. 9, pt. 3, 
 
 While, under English law, a con- ch. 6. 
 
 fession to a clergyman (E. v. Sparks, ^ Supra, Chap. X. 
 
 cited in Du Barre v. Livette, Peake * Eaynes o. Bennet, 114 Mass. 424. 
 
 N. P. 77; R. V. Gilham, Ey. &. M. ^ x Greenl. Ev. § 254. See also 
 
 186), or to a Catholic priest (Butler 2 Best, Ev. p. 995, § 586; Goodright 
 
 I.'. Moore,Macn, 253),isnotprivileged; v. Moss, Cowp. 594. 
 
 yet, in one case, Best, C. J., said that ^ Stanford v. Murphy, 63 Ga. 410. 
 
 he would never compel a, clergyman ' Easterbrooks v. Prentiss, 34 Xt. 
 
 to disclose communications made to 457. 
 
 him by a prisoner ; but if he chose to ^ That they are, see Campbell u. 
 
 disclose them, he should receive them Chace, 12 R. I. 333 ; Low's Estate, 
 
 in evidence (Broad v. Pitt, 3 Car. & Myrick, Prob. (Cal.) 143 ; Holman v. 
 
 P. 519; s. c, Moo. & M. 234). And Bachus, 73 Mo. 49; Bird t: Hueston, 
 
 Bentham contends that the priest 16 Ohio St. 418. To the contrary, see 
 
 ought not to be compelled to disclose, McCague v. Miller, 36 Ohio St. 595; 
 
 upon the ground that confession, in Fay !'. Guynon, 131 Mass. 31 ; Com. 
 
 the Roman Catholic church, is a v. Griffin, 110 Mass. 181 ; State v. Car- 
 
§ 274.] PRIVILEGED COMMUNICATIOlSfS. 453 
 
 falls into the hands of a third person, it is held that the privi- 
 lege fails.^ 
 
 The duration of the privilege does not depend upon that of 
 the marriage : neither divorce,^ nor the death of one of the 
 parties^ will remove the bar of secrecy. 
 
 In applying these principles the husband has been held 
 incompetent to testify that the wife delayed to communicate 
 to him the particulars of an assault alleged to have been com- 
 mitted upon her — the law guards the marital confidence of 
 silence as well as that of communication.* That where such 
 a communication is repeated by the husband or the wife to a 
 third person, the latter cannot disclose it on the witne.ss- 
 stand ; ^ otherwise, where the communication is overheard by 
 the witness, when made.^ In some States the statute protects 
 only private conversations, i.e., conversations between hus- 
 band and wife when alone, or with none by but their young 
 children;'^ il private, the conversation need not be confiden- 
 tial.^ In New Jersey, however, onl)- confidential communica- 
 tions are protected.^ In England,^'' and in some of the States, 
 all communications between the parties, made during the 
 marriage, are protected,^! and in one or more States there is no 
 ^atute, the common law rule prevailing.!^ 
 
 ter, 35 Vt. 378 ; Allison v. Barrow, 3 9 Abb. Pr. N. s. 109 ; s. c, 2 Sweeny, 
 
 Coldw. (Tenn.) 414. 234, affirmed, 49 N. Y. 510. Contra, see 
 
 1 State V. Bufflngton, 20 Kan. 599. Bevins v. Cline, 21 Ind. 37. And in 
 In Higbie v. McMullan(18 Kan. 133) Connecticut it is held that, on a crim- 
 
 it is held that a wife may testify to inal trial, the State may introduce 
 
 communications made by the husband letters written by defendant to his 
 
 to a third person, in her hearing, when wife. State v. Hoyt, 47 Conn. 518. 
 
 he is not a party to the suit or inter- * Goodrun v. State, 60 Ga. 509. 
 
 ested therein. S. P., Griffin c. Smith, ^ Brown v. Wood, 121 Mass. 137. 
 
 45 Ind. 336. But in Missouri the ^ Com. u. Griffin, 110 Mass. 181; 
 
 privilege extends to all oases, whether State v. Carter, 35 Vt. 378. 
 
 the husband is a party or not. Moore ' Jacobs v. Hesler, 113 Mass. 157. 
 
 V. Wingate, 53 Mo. 398. " Dexter v. Booth, 2 Allen (Mass.) 
 
 2 Anderson v. Anderson, 9 Kan. 559; Raynes u. Bennett, 114 Mass. 
 112. S. P., Grose v. Rutledge, 81 111. 425. 
 
 266. But compare Crook v. Henry, ' Wood v. Chelwood, 12 C. E. Gr. 
 
 25 Wis. 569 ; Elswick v. Common- (N. J.) 311. 
 
 wealth, 13 Bush (Ky.) 155. lo 16 and 17 Vict. c. 83, § 3. 
 
 ^ Low's Estate, Myrick, Prob. ^i See the statutes supra, Chap. X. 
 
 (Cal.) 143; Brooks v. Francis, 3 Mac- ^ White v. Perry, 14 W. Va. 66. 
 
 Arth. (U. S.) 109. But under the In Otes v. Spenser (102 III. 622) 
 
 New York Statute of 1867 it was held it is held that a husband may testify, 
 
 that either spouse could waive the in favor of his wife, to transactions 
 
 privilege. Southwick v. Southwick, and conversations occurring before 
 
454 EXAMINATION. [CHAP. XXIII, 
 
 § 275. Judges and Arbitrators. — (1) Judges. At common 
 law, a judge of a court cannot be compelled to state, as a wit- 
 ness, what occurred before him in court. Thus the chairman 
 of the court of quarter sessions was held privileged from tes- 
 tifying, on the trial of an indictment for perjury alleged to 
 have been committed in his court, as to vi^hat the accused 
 swore at that trial.^ But he is competent, if the privilege be 
 not insisted on,^ and his notes or minutes of the trial are evi- 
 dence of a high order.8 
 
 It has been held that a judge sitting alone to try a cause 
 cannot testify as a witness at the same trial; and the same 
 role applies where he sits with others, if his presence on the 
 bench is necessary to a duly organized court.* Still, if, in the 
 latter case, he does testify, and no exception is taken, the 
 judgment will not be invalidated for that reason.* These 
 principles are equally applicable to referees and other judicial 
 officers.^ 
 
 A justice is competent as a witness to verify his minutes, 
 in order to prove the testimony of a witness in a case tried 
 before him,'' or to prove the proceedings had and the judg- 
 ment rendered;^ but unless so verified his entries are not 
 evidence.^ So, also, a justice may testify upon what paperS 
 
 marriage. In Hanks v. Van Garder ^ j£uff „ Bennett, 4 Sandf. (N. Y.) 
 
 (59 Iowa, 179) testimony of tlie widow 120 ; Schall v. Miller, 5 Whart. (Pa.) 
 
 as to a transfer of a claim to her 156. 
 
 by her husband before his death, ^ £j. parte Gillebrand, L. E. 10 Ch. 
 
 was not excluded as a "communiea- 52. 
 
 tion " between husband and wife. In * Dabney v. Mitchell, 66 Ala. 495 ; 
 
 Thompson v. Silvers (59 Iowa, 670) People v. Miller, 2 Park. (N. Y.) Cr. 
 
 a wife garnished on execution against 197. See also McMillen ii. Andrews, 
 
 her husband was not excused from 10 Ohio St. 112. 
 
 answering whether she was indebted ^ People v. Dohring, 59 N. Y. 
 
 to him or had money or property be- 374. 
 
 longing to him. And in United States ^ Moi;ss w. Morss, 11 Barb. (N. Y.) 
 
 u. Guiteau (1 Mack. (D. C.) 498), the 510. 
 
 question asked of a wife concerning ' Huil v. Bennett, 4 Sandf. (N. Y.) 
 
 her husband, whether she ever saw 120 ; 6 N. Y. 337 ; Welcome v. Batch- 
 
 anything indicating that he was a man elder, 23 Me. 85 ; Schall c. Miller, 5 
 
 of unsound mind, was held not pro- Whart. (Pa.) 156 ; Zitske i'. Goldberg, 
 
 tected by the rule as to privileged 38 Wis. 216. 
 
 communications. ^ Pollock v. Hoag, 4 E. D. Smith 
 
 1 K. V. Gazard, 8 Car. & P. 595. (N. Y.) 473; McGrath v. Seagrave, 
 
 S. P., Agan J'. Hey, 30 Hun (N. Y.) 2 Allen (Mass.) 443; Boomer v. 
 
 591. Compare Supples v. Cannon, 44 Laine, 10 Wend. (N. Y.) 526; Hibbs 
 
 Conn. 430 ; Taylor v. Larkin, 12 Mo. v. Blair, 14 Pa. St. 413. 
 
 103. » Schafer v. Schafer, 93 Ind. 586. 
 
§ 275. J PRIVILEGED COMMUNICATIONS. 455 
 
 process was issued by him,^ or as to various other collateral 
 matters.^ 
 
 (2) Arhitrators. The same general rule applies to arbi- 
 trators. Thus, it is held that an arbitrator cannot be ad- 
 mitted as a witness to impeach the award ; he cannot be sworn 
 to prove a mistake in making it up.^ Having signed it, lie 
 cannot be permitted to say that he did not concur in it.* But 
 where an umpire is called in, one of the arbitrators (whose 
 functions thereupon cease), who did not concur in the award, 
 may be received as a witness to show that the umpire ex- 
 ceeded his authority.^ The rule is general and well settled 
 that the award of arbitrators cannot be shown by parol testi- 
 mony to mean something different from what it plainly de- 
 clares; and that not even the testimony of the arbitrators 
 themselves can be received to contradict or impeach it.^ 
 
 An arbitrator is competent to prove that matters were 
 included in the award not contained in the submission, but 
 not competent to contradict the terms of the award or to 
 prove errors or mistakes made by the arbitrators.^ He is not 
 competent to show the misconduct of himself or his associates, 
 by testifying to what occurred in their intercourse with each 
 other or in their deliberations ; but he is competent to prove 
 the time of the last hearing, which was beyond the time lim- 
 ited in the submission, and what occurred openly at a pre- 
 vious hearing, fixing the time for the final summing up and 
 submission of the cause.^ In Haggart v. Moi'gan,^ the umpire 
 was called as a witness, and testified without objection that 
 he united with one of the arbitrators in making an award, 
 after the time limited by the submission ; and the arbitration 
 having failed without the fault of either party, an action was 
 sustained on the contract which itself provided for a settle- 
 ment of any disputes under the same by arbitrators. 
 
 1 Heywood's Case, 1 Sandf. (N. Y.) « Doke v. James, 4 N. Y. 568 ; Fid- 
 701. ler V. Cooper, 19 Wend. (N. Y.) 284 ; 
 
 2 Highberger ;;. Stiffler, 21 Md. Dater v. Wellington, 1 Hill (N. Y.) 
 238 ; Jackson v. Humphrey, 1 Johns. 319. 
 
 (N. Y.) 498. ' Briggs v. Smith, 20 Barb. (N. Y.) 
 
 5 Newland v. Douglass, 2 Johns. 409. 
 
 (N. Y.) 62. 8 Cole v. Blunt, 2 Bosw. (N. Y.) 116. 
 
 * Campbell v. Western, 3 Paige » 5 N. Y. 422. 
 
 (N. Y.), 124. For further decisions as to the com- 
 
 5 Mayor &c. of N. Y. v. Butler, 1 petenci/ of judges and arbitrators, see 
 
 Barb. (N. Y.) 326. supra, § 45. 
 
456 
 
 EXAMINATION. 
 
 [chap. XXIII. 
 
 § 276. state Secrets ; Communications between Officials. — 
 Evidence of matters and things, the disclosi;re of which 
 would be prejudicial to the public interests, is excluded by 
 the law, from motives of sound public policy, and with a view 
 to the permanence of the public safety. These matters are 
 of two classes : (1) those which concern the administration of 
 penal justice, and (2) those which concern the administra- 
 tion of the government. In both cases the ground of exclu- 
 sion is the same, and where the public safety is in no way 
 involved, the rule should not be applied. ^ 
 
 Thus, on the trial of a criminal case, the officer who appre- 
 hended the prisoner, being examined as a witness for the 
 United States, is not bound to disclose the name of the person 
 from whom he received the confidential information which led 
 to the prisoner's detection.^ So, also, on a larceny trial, a 
 
 1 " It is the duty of every citizen to 
 communicate to his government any 
 information which he has of the com- 
 mission of an offence against the laws. 
 To encourage him in performing this 
 duty, without fear of consequences, 
 the law holds such information to 
 be among the secrets of State, and 
 leaves the question how far, and un- 
 der what circumstances, the names of 
 the informers and the channel of com- 
 inanication shall he suffered to be 
 known, to the absolute/ discretion of 
 the government, to be exercised ac- 
 cording to the views of what the in- 
 terests of the public require. Courts 
 of justice therefore will not compel 
 or allow the discovery of such infor- 
 mation, either by the subordinate 
 officer to whom it is given by the 
 informer himself, or by any other 
 person, without the permission of the 
 government. The evidence is ex- 
 cluded, not for the protection of the 
 witness or of the party in the particu- 
 lar case, but upon general grounds of 
 public ^policy, because of the confi- 
 dential nature of such communica- 
 tions. . . . The question before us 
 is not one of the law of slander or 
 libel, but of the law of evidence; not 
 whether the communications of the 
 defendant to the officers of the treas- 
 ury are so privileged from being con- 
 sidered as slanderous, as to affect the 
 
 right to maintain an action against 
 the defendant upon or by reason of 
 them, but whether they are privileged 
 in a different sense, so that courts of 
 justice will not compel or permit 
 tlieir disclosure without the assent 
 of the government to whose officers 
 they were addressed. The reasons 
 and authorities already stated con- 
 clusively show that the communica- 
 tions in question are privileged in the 
 latter sense, and cannot be disclosed 
 without the permission of the secre- 
 tary of the treasury. And it is quite 
 clear that the discovery of documents, 
 which are protected from disclosure 
 upon grounds of public policy, cannot 
 be compelled either by bill in equity 
 or interrogatories at law." VForth- 
 ington V. Scribner, 109 Mass. 487. 
 This case fully reviews the leading 
 authorities, and comments adversely 
 upon E. V. Richardson (3 Kost. & F. 
 693), where an officer was compelled, 
 on cross-examination, to disclose from 
 whom he got the information, in con- 
 sequence of which he discovered the 
 poison in a place used by the accused. 
 See R. V. Richardson, explained in 
 Steph. Dig. Ev. Art. 113. See also 
 Oliver v. Pate, 43 Ind. 132. 
 
 2 United States v. Moses, 4 Wash. 
 726. S. P., Atty.-Gen. v. Briant, 15 
 L. J. (Exch.) N. s. 266. 
 
§ 277.] 
 
 PEIVILEGBD COMMUNICATIONS. 
 
 457 
 
 witness, from whom the property is charged to have been 
 stolen, is not bomid to disclose the names of persons in liis 
 employment, who gave the information which induced him 
 to take measures for the detection of the persons indicted.^ 
 
 But it seems communications, though made to official per- 
 sons, are not privileged, when they' are not made in the dis- 
 charge of any public duty; as a letter written by a private 
 individual to the secretary of the postmaster general, com- 
 plaining of the conduct of the guard of the mail.^ 
 
 §277. Secrets of the Jury-Room. — (1) Grand jury. This 
 subject has already been discussed in a former part of this 
 work,^ and only a few decisions, some of which are not there 
 cited, will be referred to here. 
 
 It is only by virtue of statutory provisions that grand jurors 
 are competent to testify to facts coming to their knowledge 
 as such ; and when a statute exists prescribing the case or 
 cases in which they may so testify, such statute is to be 
 strictly construed, and the case must fall clearly within its 
 provisions, or the witness cannot testify.* The statutes of 
 
 1 State V. Soper, 16 Me. 29.3. Said 
 Lord Chief Justice Eyre, in Eex v. 
 Hardy (24 How. St. Tr. 808) : " It is 
 perfectly right that all opportunities 
 should be given to discuss the truth 
 of the evidence given against a pris- 
 oner ; but there is a rule which has 
 universally obtained, on account of 
 its importance to the public for the 
 detection of crimes, that those per- 
 sons who are the channel by means 
 of which that detection is made, 
 should not be unnecessarily dis- 
 closed." See, also, B. v. Watson, 2 
 Stark. 136; Home v. Lord Bentinck, 
 2 Brod. & B. 130; E. v. Ackers, 6 
 Esp. 125, where Lord Kenyon said : 
 " The defendant's counsel have no 
 right, nor shall they be permitted to 
 inquire the name of the person who 
 gave the information of the smuggled 
 goods." And also Clark f. Field, 12 
 Vt. 485 ; McLellan v. Eichardson, 13 
 Me. 82. 
 
 The following cases are the other 
 way. E. V. Blackman, 1 Esp. 95; 
 E. V. Cundy, 15 Mees. & W. 175; 
 ]{. r. Eichardson, 3 Eost. & F. 693 ; 
 Dickson v. Wilton, 1 Id. 419 ; Law v. 
 
 Scott, 5 H. & J. 438; but most of 
 these were at nisi prius, and all of 
 them have been either overruled or 
 dissented from. See Worthington v. 
 Scribner, cited supra. 
 
 2 Blake v. Pilfield, 1 Moo. & Bob. 
 198. A senator was held admissible 
 to disclose facts which transpired in 
 secret session after he had applied to 
 have the injunction of secrecy re- 
 moved, and that was refused. Law 
 V. Scott, 5 Harr. & J. (Md.) 438. The 
 court refused a subpoena duces tecum 
 to compel a State governor to pro- 
 duce a paper filed with him, contain- 
 ing charges alleged to be libellous. 
 Gray v. Pentland, 2 S. & E. (Pa.) 23 ; 
 commented on and approved in You- 
 ter V. Sanno, 6 Watts (Pa.) 166. 
 
 8 Supra, § 62. 
 
 * Thompson & Merriam on Juries, 
 745 ; Spratt v. State, 8 Mo. 274 ; State 
 V. Bebee, 17 Minn. 241; Se Pinney, 
 27 Minn. 281; State v. Gibbs, 39 
 Iowa, 318; Beam v. Link, 27 Mo. 
 261 ; Tindle v. Nichols, 20 Mo. 326 ; 
 People V. Hulbut, 4 Den. (N. Y.) 
 135 ; Ex parte Sontag, 5 Cr. L. Mag. 
 384 ; Euby v. State, 9 Tex. App. 353. 
 
458 EXAMINATION. [CHAP. XXIII. 
 
 such of the States as have statutes upon the subject, are 
 nearly, if not quite, the same in phraseology, and are the 
 same in meaning and effect ; and an examination will show 
 that the testimony of a member of a grand jury is admitted 
 in two cases : (1) to disclose the testimony of a witness exam- 
 ined before the grand juiy, for the purpose of ascertaining 
 whether it is consistent with that given by the witness before 
 the court ; or, (2) to disclose the testimony given before them 
 by any witness upon a charge against him of perjury. 
 
 Further than this the prohibition of the common law is not 
 removed.^ 
 
 (2) Petit jury. The cases as to petit jurors, also, have 
 been already discussed,^ the rule being a general one that a 
 traverse juror cannot be heard to impeach the verdict 
 in which he took part ; ^ while he may sometimes be to sup- 
 port it, or clear himself from the charge of misconduct.* He 
 may show his own acts while separated from his fellows,^ or 
 what evidence was given on a trial in which he was a juror.® 
 And he may be a witness upon the trial in which he acts as 
 a juror.^ 
 
 § 278. other Cases. — An examination of the case law on 
 the subject of privileged communications shows the existence 
 of a general rule that no communication should be excluded, 
 no individual should be exempt from inquirj', when the com- 
 munication or the answer to the inquiry would be of impor- 
 tance in the conviction of crime or the acquittal of innocence, 
 except when such exclusion is required by some grave prin- 
 ciple of public policy. Thus, a telegraphic operator is not 
 privileged to refuse to testify, upon a criminal trial, to the 
 contents of a message sent by him. Such message cannot be 
 deemed any more confidential than any other communica- 
 tions. The telegraphic companies cannot rightfully claim 
 that the messages of rogues and criminals which they may 
 
 1 See also, generally, Granger v. the cases on this point, see 24 Am. 
 Warrington, 8 111. 299 ; State v. Dec. 475 ; 12 Id. 142. 
 
 Brewer, 8 Mo. 373 ; Imlay v. Rogers, * People v. Hunt, 59 Cal. 430 ; Peck 
 
 2 Halst. (N. J.) 347 ; Croker v. State, v. Brewer, 48 111. 54 ; Clement v. 
 
 1 Meigs (Tenn.) 127 ; Clark v. Field, Spear, 56 Vt. 401. 
 
 12 Vt. 485. 6 Heffron v. Gallupe, 55 Me. 563. 
 
 2 Supra, § 62, subd. 2. 6 Hewitt v. Chapman, 49 Mich. 4. 
 
 ' Bridgewater v. Plymouth, 97 '' Howser v. Com., 51. Pa. 54, 332 ; 
 Mass. .382 ; "Williams v. Montgomery, People v. Dohring, 59 N. Y. 374. 
 60 N. Y. 648. For a full collection of 
 
§ 278.] PRIVILEGED COMMUNICATIONS. 459 
 
 innocently or igiiorantly transmit, should be withheld when 
 the cause of justice renders their production necessary. The 
 interests of the public demand that resort should be had to 
 all available testimony which may lead to the detection and 
 punishment of crime and to the protection of innocence.^ All 
 witnesses, other than professional men, must, when the inter- 
 est of justice demands it, testify what a party told to them in 
 confidence, and under an engagement of secrecy.^ The privi- 
 lege does not protect a large number of confidential communi- 
 cations, such as those made to confidential agents,^ clerks,* 
 bankers,^ or stewards,^ except in cases where the employer 
 himself would not be obliged to disclose. 
 
 1 State V. Litchfield, 58 Me. 267. * Lee v. Birrell, 2 Campb. 3-37 ; 
 See, also. Woods v. Miller, 55 Iowa, Webb v. Smith, 1 Car. & P. 337. 
 
 168 ; s. c, 39 Am. Kep. 170. ^ Loyd u. Preshfield, 2 Car. & P. 
 
 2 Mills V. Griswold, 1 Root CConn.) 325. 
 
 383. 15 "Vaillant v. Dodemead, 2 Atk. 
 
 8 Holmes v. Comegys, 1 Dall. (U. 524; Earl of Falmouth v. Moss, 11 
 
 S.) 439; Hofliman v. Smith, 1 Cai. Price, 455. 
 (N. Y.) 157, 159. 
 
CHAPTER XXIV. 
 
 KBFRESHING THE MBMOBY. 
 
 § 279. In General. 
 
 § 280. When Memoranda or Other Writings may be referred to. 
 
 § 281. What Writings may be used for this Purpose. 
 
 § 282. When the Writing must be produced. 
 
 § 283. When Witness must testify from Independent Recollection. 
 
 § 284. When the Memoranda, etc., are themselves Evidence. 
 
 § 285. Proper Practice where Witness is blind or cannot read. 
 
 § 279. In General. — The rule is well settled that a witness 
 may, under proper circumstances, have his memory respect- 
 ing anything upon which he is questioned, refreshed by means 
 of written or printed memoranda, documents, and papers.^ In 
 many cases this course is indispensable to the ascertainment 
 of truth ; such eases are, particularly, those involving the 
 proof of accounts containing many items.^ So, for obvious 
 reasons, a witness cannot be compelled to answer whether a 
 signature shown to him is his, unless he is permitted to exam- 
 ine the paper to which it is appended.^ Human memory is 
 so frail that very few witnesses are able to testify as to 
 particular dates, numbers, quantities, and sums after any 
 considerable lapse of time, without reference to papers or 
 
 1 Ford w. Commonwealth, 130 Mass. lande, 12 La. Ann. 826; Flowers r. 
 64 ; s. c, 39 Am. Rep. 426 ; Queen v. Downs, 6 Id. 539 ; State (.. Miller, 53 
 Langton, 22 Q. B. D. 296; Eemsey !). Iowa, 154, 209; Cooper v. State, 59 
 Duke, 1 Morr. (Iowa) 385; White v. Miss. 264, 272; Robertson v. Lynch, 
 Tucker, 9 Iowa, 100 ; State y. Taylor, 18 Johns. (N. Y.) 451; Clough u. 
 
 3 Oreg. 10; State ■;. Lyons, 89 N. C. State, 7 Neb. 320; McCausland <. 
 568. Ralston, 12 Nev. 196, 217; Kent v. 
 
 2 Wise t). Phoenix Ins. Co. (N. Y.), Mason, 1 Bradw. (111.) 466, 471; 
 
 4 N. East. Rep. 634; affirming 31 Coffin u. Vincent, 12 Cush. (Mass.) 
 Ilun, 87; Lawson d. Glass, 6 Col. 134, 98; Rambert v. Cohen, 4 Esp. 213; 
 135 ; Wise v. Phcenix Ins. Co. (N. Y.), Jacob o. Lindsey, 1 East, 227 ; Ken- 
 4 N. East. Rep. 634; Howard v. Mc- sington v. Inglis, 8 East, 273; Home 
 Donough, 77 N. Y. 592 ; McCormick v. McKenzie, 6 CI. & F. 628 ; Burton 
 V. R. R. Co., 49 N. Y. 303 ; Driggs v. v. Plummer, 2 Ad. & -E. 341 ; Rex v. 
 Smith, 36 N. Y. Super. Ct. Rep. 283 ; Duchess of Kingston, 20 How. St. Tr. 
 Commonwealth u. Jeffs, 132 Mass. 5 ; 619. 
 
 Commonwealth v. Ford, 1.30 Mass. 64 ; ^ Insurance Co. v. Throop, 22 Mich. 
 
 8. c, 39 Am. Rep. 426 ; Davidson v. Lai- 146. 
 
§ 280.] EEFEESHING THE MEMORY. 461 
 
 memoranda.^ But with the memory thus quickened and 
 refreshed, the witness is enabled to testify with greater clear- 
 ness and accuracy than without the use of the paper, even 
 though be remembers quite distinctly the general facts con- 
 cerning which he is giving evidence. Indeed, a witness being 
 sworn to tell the whole truth, he ought to do what is reasonable 
 to enable him to perform that duty faithfully and sincerely, 
 according to the spirit of his oath ; and he may lawfully be 
 required to look at memoranda or papers within his power, 
 to aid his recollection.^ But on the other hand, where the 
 witness expresses no want of recollection, nor desire to refresh 
 his memory, counsel cannot be allowed to place in his hands 
 memoranda relative to the matters on which he is called to 
 testify.^ In such a case the ordinary objection to the prac- 
 tice — that the paper referred to operates upon the mind of 
 the witness like a leading question — would seem to be well 
 taken. 
 
 The manner in which a witness shall be allowed to refresh 
 his recollection by reference to a writing must be left, to some 
 extent, to the discretion of the presiding judge, — a discretion 
 to be exercised with reference to the circumstances of the 
 case, and sometimes with reference to the conduct and bear- 
 ing of the witness upon the stand.* The courts are required 
 to take great care to guard against forgery, interpolation, 
 etc., thus preventing the abuse of the right.^ 
 
 § 280. When Memoranda or Other Writings may be referred 
 to. — There are three classes of cases laid down in the books 
 in which reference to memoranda may be made : (1) where 
 the writing serves only to revive or assist the memory of the 
 witness, and to bring to his mind a recollection of the facts ; ^ 
 (2) where the witness recollects having seen the writing 
 before, and though he has no independent recollection of the 
 facts mentioned in it, yet remembers that, at the time he saw 
 
 1 Feeter v. Heath, 11 Wend. (N. Y.) ^ Harrison v. Middleton, 11 Gratt. 
 477, 485; McCausland .. Ralston, 12 (Va.) 527, 544; Merrill v. Ithaca, &c. 
 Nev. 195. R. R. Co., 16 Wend. (N. Y.) 600 ; 
 
 2 Chapin v. Lapham, 20 Pick. Chapin v. Lapham, 20 Pick. (Mass.) 
 (Mass.) 467. 467. 
 
 3 Young V. Catlett, 6 Duer (N. Y.) e state v. Lull, 37 Me. 246 ; George 
 437; HaackK. Fearing, 5 Robt.(N.Y.) v. Joy, 19 N. H. 544; Harrison v. 
 528. S. P., Moore v. Chesley, 17 N. Middleton, 11 Gratt. (Va.) 527; Huff 
 H. 151. u. Bennett, 6 N. Y. 337. 
 
 * Johnson v. Coles, 21 Minn. 108. 
 
462 EXAMINATION. [CHAP. XXIV. 
 
 it, he knew the contents to be correct ; ^ and (3) where it 
 brings to the mind of the witness neither any recollection of 
 the facts mentioned in it, nor any recollection of the writing 
 itself, but which, nevertheless, enables him to swear to a par- 
 ticular fact, from the conviction of his mind on seeing a writ- 
 ing which he knows to be genuine ; as, for instance, where a 
 banker's clerk is shown a bill of exchange which has his 
 writing upon it, from which he knows that the bill has passed 
 through his hands, though he has no recollection of that fact, 
 nor of his writing anything upon the bill.^ 
 
 In the two latter classes of cases, the witness must, on see- 
 ing the writing, be able to depose positively to the facts to 
 which he is examined, although he may have no present recol- 
 lection of them independently of the writing.^ And in any 
 case, a witness, after testifying to a fact from personal recol- 
 lection, will not be permitted to corroborate his testimony by 
 a written memorandum made by himself.^ 
 
 § 281. 'What Writings may be used for this Purpose. — 
 (1) In general. All original entries made in any form by 
 the witness, for the purpose of perpetuating his memory of a 
 particular transaction, may, as a general rule, be referred to 
 by him in giving his testimony.^ The writing need not be, 
 itself, admissible in evidence ; even an unstamped or other 
 writing, not evidence in itself, may be used for this purpose. 
 
 ^ Webster t'. Clark, 10 Fost. (N.H.) entries of the receipt of sums of 
 
 245 ; Downer v. Rowell, 24 Vt. 343 ; money, of the numbers of notes at a 
 
 Odiorne r. Bacon, 6 Cash. (Mass.) banker's, entries in notes by counsel, 
 
 185 ; State v. Cheek, 13 Ircd. (N. C.) etc., of the testimony of a, witness on 
 
 L. 114. And see White u. Ambler, a former trial; any entry by a bank- 
 
 8 N. Y. 170. clerk or teller, the affidavit of a gaming 
 
 ^ See E. V. St. Martin's Leicester, transaction, the attestation of a deed, 
 
 2 Ad. &. E. 210; State i;. Colwall, 3 will, or other paper, the memorandum 
 
 R. I. 132; New Haven Bank u. of a tender of money, including time, 
 
 Mitchell, 15 Conn. 206. sum, manner, the entry of a notary 
 
 3 2 Phil. Ev. *917. or a notary's clerk, entries of admis- 
 
 In trespass to try title a witness sions and settlements, etc." 2 Phil, 
 
 was allowed to refer to a plan of the Ev. (5 Am. Ed.) *920n. See also 
 
 land in dispute. Cundiff v. Orms, 7 Prather v. Pritchard, 26 Ind. 05; 
 
 Port. (Ala.) 58. See also People v. Chiapella u. Brown, 14 La. Ann. 189; 
 
 Cotta, 49 Cal. 167; Dunlap u. Berry, Massey v. Hackett, 12 Id. 54; Wel- 
 
 6 111. 327. come v. Batchelder, 23 Me. 85; Neil 
 
 « Wightman u. Overhiser, 8 Daly v. Childs, 10 Ired. (N. C.) L. 195; 
 
 (N. Y.) 282. Columbia v. Harrison, 2 Mill (S. C.) 
 
 5 " We have words of scandal, ad- 213; State u. Cardoza, 11 So. Car. 
 
 missions of tenants, entries by mer- 195. 
 chants' clerks, by magistrates' clerks, 
 
§ 281.] EEPEESHING THE MEMORY. 463 
 
 The fact sworn to is proved by the parol testimony of the 
 witness, not by the writing, and the latter cannot properly 
 be said to become evidence because used by the witness for 
 this purpose.-' 
 
 (2) By ivhom tvritten. Nor need the paper referred to have 
 been actually written by the witness himself, if, upon con- 
 sulting it, his memory is so refreshed that he can speak to 
 the facts from a recollection of them';^ while if he wrote it 
 himself, he can, in some cases, testify to the truth of the facts, 
 stated, even if he has no recollection of the matter.^ 
 
 If he did not write it, yet he may use it to refresh his 
 memory, if he saw the paper while the facts therein stated 
 were fresh in his recollection, and he can say that he then 
 knew that they were correctly stated;* otherwise if he fails 
 to recognize the paper as a correct account of the transac- 
 tion.^ For where the witness neither recollects the fact, nor 
 the truth of the account in writing, and the writing was not 
 made by him, his testimony, so far as it is founded on the 
 written paper, would be objectionable, as hearsay ; the witness 
 can be no more permitted to give evidence of his inference 
 from what a third person has written, than from what a third 
 person has said.^ 
 
 (3) Time of writing — date of memorandum. As to the time 
 when the memorandum should have been made, — Avhether 
 it must be contemporaneous with the fact, or recently after 
 the fact, or how long after, it may be made, — the decisions, 
 as might be expected, lay down no precise rule. There seems 
 to be no good reason for saying, that a writing is not to be 
 allowed for the purpose of refreshing a Avitness's memory, 
 unless made cotemporaneously with the fact which it records; 
 
 ^ Maugham v. Hubbard, 8. Barn. & he knows and can state positively, 
 
 C. 14. See also Lloyd .,■. Freshfield, that it passed through his hands. See 
 
 2 Car. & P. 325 ; Henry v. Lee, 2 infra, § 283. 
 
 Chit. 124. 4 Coffin v. Vincent, 12 Cush. 
 
 2 Duchess of Kingston's Case, 20 (Mass.) 98. S. P., State o. Collins, 
 
 How. St. Tr. 610; Henry ,-. Lee, 2 15 So. Car. 373; s. c, 40 Am. Eep. 
 
 Chit. 124; Church v. Perkins, 3 T. E. 697. Compare Davis v. Allen, 9 Gray 
 
 749; Jacob v. Lindsay, 1 East, 460; (Mass.) 322. 
 
 Burton u. Plummer, 2 Ad. & E. 341 ; ^ Chamberlain v. Sands, 27 Me. 
 
 Cameron t). Blackmari, 39 Mich. 108; 458; Morris v. Lachman (Cal.) 8 
 
 State ;■. Lull, 37 Me. 240. West Coast Eep. 305. 
 
 ^ As where a banker's clerk is ^ See also Green u. Caulk, 16 Md. 
 
 . shown a bill of exchange, with his 556. 
 own handwriting on it, from which 
 
461 EXAMINATION. [CHAP. XXIV. 
 
 but certainly it ought to have been made either at that period, 
 or recently after, or at the utmost before such a length of 
 time has elapsed, as to render it probable that the memory of 
 the witness might have become imperfect.^ The principle 
 being adopted that a witness's memory may be assisted by a 
 written paper or memorandum, it follows that no precise 
 limited time can consistently be fixed, within which a writing 
 must be shown to have been made, before it can be used by 
 the witness. A memorandum made long after the fact, may 
 be to some witnesses of much greater use than even a cotem- 
 poraneous memorandum will be to others. The effect of a 
 memorandum in assisting a witness will depend upon the 
 state of his memoiy, and the time when the memorandum 
 was made, — wliich will vary in different cases. 
 
 (4) Copies, and particular writings. With regard to the 
 use of copies of original memoranda for the purpose of refresh- 
 ing the memory, the adjudications afford no precise rule of 
 l)rocedure. Some cases apply the rule requiring the best 
 evidence, and thus exclude the copy.^ But it seems that if 
 the paper used be in the nature of a duplicate original, it may 
 be referred to.^ The better opinion, however, in this country, 
 seems to be that a copy may be used if tlie witness is clear 
 and explicit in his evidence that it is trulj^ transcribed from 
 the original, and that the original was correctly made, and 
 was true when made,^ proof being also given that the original 
 is lost.^ 
 
 1 Jones V. Stroud, 2 Car. & P. 196. defaced, he had, before starting from 
 In Spring &c. Ins. Co. v. Evans (15 home for the place of trial, made a 
 Md. 54) five months was held too correct copy thereof; and tliat such 
 long a time ; and in Schwartz v. Chick- copy, having also become defaced, he 
 ering (58 Md. 290) sixteen months liad caused another copy to be made 
 was held too long. See also Kendall tliereof, wliicli lie knows to be cor- 
 V. Stone, 2 Sandf. (N. Y.) 269; Tan- rect, — may use such second copy to 
 ner v. Taylor, cited in Doe v. Perkins, refresh his memory at the trial. 
 
 3 T. R. 754 ; Howard v. Canfield, 5 « Chicago &c. K. R. Co. v. Adler, 
 
 Dowl. P. C. 417 ; Dupuy v. Truman, 56 111. 344 ; Topham v. McGregor, 1 
 
 2 Younge & Coll. 341. Car. & K. 320 ; compare Madigan c. 
 
 2 Burton v. Plummer, 2 Ad. & E. Degraff, 17 Minn. 52. 
 
 341. s Felkins v. Baker, 6 Lans. (N. Y.) 
 
 8 In Folsom v. Apple Kiver Log 616. 
 
 Driving Co. (41 Wis. 002) it is held Reference to copies was allowed in 
 
 that a witness who testifies that he Com. v. Ford, 130 Mass. 64; s. c, 39 
 
 made a correct written memorandum Am. Rep. 426 ; Clough v. State, 7 Neb. 
 
 of certain facts at the time of their 320; George r. Joy, 19 N. H. 544; 
 
 occurrence; that, the original being Berry v. Jourdan, 11 Rich. (S. C.) 67. 
 
§ 282.] EEFEESHING THE MEMORY. 465 
 
 For the application of the foregoing rules to accounts and 
 merchants' books,^ maps, plans and plats,^ writing in pencil,^ 
 depositions and former testimony of the witness,* and bills of 
 particulars and other papers in suits,^ the cases cited in the 
 notes may be consulted with profit. 
 
 § 282. When the Writing must be produced. — Where, from 
 a previous inspection of a written paper, the memory of the 
 witness has been revived, it is not essential to the admission 
 of his oral testimony that the writing itself should be pro- 
 duced in court.® The case is the same as many others in 
 which the witness's memory is revived by reference to any 
 past circumstance to which his attention is drawn without 
 the aid of written memoranda. Its non-production, however, 
 may be a matter of remark, and even though it be not in 
 court, and the witness be not subpoenaed to produce it, the 
 court has a discretion to require its production;''' all the 
 more so where the witness uses the paper to refresh his mem- 
 ory while on the stand.^ It is a general rule, however, that 
 if a witness produces any writing to assist his memory, he 
 may be compelled to submit it to the inspection of the oppo- 
 site party, to enable him to see whether it is a proper memo- 
 
 Suoh use of copies was refused in State v. Able, 65 Mo. 357 ; Williams 
 
 Evans u. Boiling, 8 Port. (Ala.) 546; v. Miller, 1 Wash. T. 105. 
 McCormickv. Mulvihill, 1 Hilt. (N. Y.) '> Kensington v. Ingles, 8 East, 273 ; 
 
 131. Burton v. Plummer, 2 Ad. & E. 841 ; 
 
 1 Memphis &c. R. R. Co. v. Maples, Hamilton v. Rice, 15 Tex. 382 ; Trus- 
 63 Ala. 601; Treadwell v. Wells, 4 tees of Wabash &c. Canal ;;. Bledsoe, 
 Cal. 260 ; Murray v. Cunningham, 10 5 Ind. 133 ; State v. Cheek, 13 Ired. 
 Neb. 167 ; Philbin v. Patrick, 3 Abb. (N. C.) L. 114. In Raynor v. Norton 
 (N. Y.) App. Dec. 605 ; Sackett v. (31 Mich. 210) it is held that a wit- 
 Spencer, 29 Barb. (N. Y.) 180; Cowles ness who has produced and identified 
 V. Hayes, 71 N. C. 230 ; King v. Paber, a memorandum which is itself admis- 
 51 Pa. St. 387 ; Reed v. Jones, 15 Wis. sible in evidence, may be permitted 
 40 ; Schettler v. Jones, 20 Wis. 412. to testify from it, and such testimony 
 
 ^ Shook V. Pate, 50 Ala. 91 ; Rippe is not open to the objection that the 
 
 V. Chicago &c. E. E. Co., 23 Minn, memorandum itself should be read to 
 
 18. the jury. Where the witness merely 
 
 ' Stetson I/. Godfrey, 20 N. H. repeats its contents, it is not material 
 
 227. that counsel should read it, rather 
 
 * Atkins V. State, 16 Ark. 568 ; than the witness. To the contrary, 
 
 Burney v. Ball, 24 Ga. 505 ; Browp v. see Hall v. Ray, 18 N. H. 126. And 
 
 State, 28 Ga. 199; Harvey v. State, see Harrison v. Middleton, 11 Graft. 
 
 40 Ind. 516 ; State v. Miller, 53 Iowa, (Va.) 527. 
 
 154, 209 ; Beaubien v. Cicotte, 12 Mich. ' Com. v, Lannan, 13 Allen (Mass.) 
 
 459. 563. 
 
 5 Cool u. Snover, 38 Mich. 562; « Tibbetts v. Sternberg, 66 Barb. 
 
 Hudnutt V. Comstock,- 50 Mich. 596; (N. Y.) 201. 
 
466 EXAMINATION. [CHAP. XXIV. 
 
 randum for the purpose, but he is only bound to show such 
 parts of it as he consults to aid his memory, or such as relate 
 to the subject of his testimony.^ 
 
 Where the writing has not the effect of reviving the wit- 
 ness's memory, but yet enables him to speak positively to a 
 fact, so that his testimony depends upon his inference from 
 the writing, the writing must be produced, and his testimony 
 is admissible as proof of the fact.^ 
 
 § 283. When Witness must testify from Independent Recol- 
 lection. — We thus see that there are two distinct classes of 
 cases on the question under consideration : (1) Where the 
 witness, by referring to the memorandum, has his memory 
 quickened and refreshed therebj'', so that he is enabled to 
 swear to an actual recollection. All authorities concur that 
 if the paper produces this effect, it may be used. (2) Where 
 the witness, after referring to the memorandum (made by 
 himself), undertakes to swear to the fact ; yet not because he 
 remembers it, but because of his confidence in the correctness 
 of the memorandum. 
 
 In both cases the oath of the witness is the primary sub- 
 stantive evidence relied upon ; iu the former, the oath being 
 grounded on actual recollection, and in the latter, on the faith 
 reposed in the verity of the memorandum, in which case, in 
 order to judge of the credibility of the oath and of the reliance 
 to be placed upon the testimony of the witness, all the well 
 considered cases hold that the memorandum must be original 
 and contemporarj^ with the transaction, or nearly so, and must 
 be produced in court. 
 
 There are a number of adjudications which would seem to 
 limit tlie use of the memorandum in the second class of cases 
 above mentioned, to the proof of signatures and the like, and 
 to deny its use in such cases, where the purpose is to enable 
 the witness to swear to facts stated in the body of the paper, 
 as to which, even after consulting the paper, he has no per- 
 sonal recollection. The contention, in these cases, is that the 
 paper must be used for the sole and distinct purpose of re- 
 freshing the memory, and not for the purpose of enabling the 
 
 1 Commonwealth y. Haley, 13 Allen 2 j)oe „. Perkins, 3 T. E. 754; 1 
 
 (Mass.) 587. S. P., McKivitt v. Cone, Greenl. Ev. (14 Ed.) § 437n (o). 
 30 Iowa, 455; Tibbetts u. Sternberg, 
 supra. 
 
§ 283.] 
 
 EEFEESHING THE MEMORY. 
 
 467 
 
 witness to gain entirely new and. original information from 
 it ; ^ and whether a memorandum can be used for this pur- 
 pose depends upon whether the witness, after examining it, 
 can state the fact from memory ; ^ that the witness may 
 inspect it, provided after doing so he distinctly recollects the 
 facts to which it relates, independent of it.^ He must swear 
 to the fact from memorj',* for it is his recollection, and not 
 the memorandum, that is the evidence.^ Hence, if he cannot 
 speak to the fact any farther thau as finding it stated in the 
 written entry, his testimony will amount to nothing. It is 
 not enough for him to swear that he made the memorandum 
 himself, which he believes to be true, and that he relies upon 
 it without present recollection of the fact.^ " If, after look- 
 ing at the paper, the witness cannot speak from his recollec- 
 tion merely, his testimony, so far as he cannot speak from 
 recollection, is inadmissible." '' " If the paper fails to revive 
 and refresh his recollection, and thus constitute his present 
 knowledge, he cannot testify." ® 
 
 1 Erie PreserTmg Co. v. Miller, .32 
 Conn. 444; s. c, 52 Am. Rep. 607. 
 
 2 Watts V. Sawyer, 55 N. H. 39. 
 
 3 Feeter v. Heath, 11 Wend. (N. Y.) 
 477. This case is disapproved in Hal- 
 sey V. Sinsebaugh, 15 N. Y. 487. 
 
 * Doe V. Perkins, 3 T. R. 409 ; s. c, 
 3 Durnf . & East. 749 ; Tanner v. Tay- 
 lor, cited in last case. In the first 
 case it is said that if the witness can- 
 not swear from memory after inspec- 
 tion, and knows no more than what 
 he finds entered in the book or paper, 
 the original must be produced. In 
 this case the witness testified from 
 extracts made by himself from the 
 original books, some entries in which 
 were made by the witness and some 
 by another. The witness confessed 
 upon cross-examination that he had 
 no memory of his own of the specific 
 facts contained in the entries ; but that 
 the evidence that he was giving was 
 founded altogether upon the extracts. 
 His testimony was rejected. 
 
 6 Henry v. Lee, 2 Chit. 124 ; Hill 
 V. State, 17 Wis. 675. See Pinshower 
 ^. Hanks, 18 Nev. 99, 105. 
 
 8 Lawrence v. Barker, 5 Wend. 
 (N. Y.) 301, 305, relying on Tanner 
 
 V. Taylor, and Doe v. Perkins, supra. 
 This case is disapproved in Halsey v. 
 Sinsebaugh, supra. See Cameron v. 
 Blackman, 39 Mich. 108, 100. 
 
 ' Harrison v. Middlcton, 11 Gratt. 
 (Va.) 527, 543. " The doctrine estab- 
 lished by the authorities seems to be 
 that if the witness, after looking at 
 the paper, to recall the facts, can 
 speak from his own recollection of 
 them, and not merely because they 
 are stated or referred to in the paper, 
 his evidence will be admissible, not- 
 withstanding the manner in which his 
 recollection was revived, and no mat- 
 ter when or by whom the paper was 
 made, nor whether it be original or a 
 copy, or an extract, nor whether re- 
 ferred to by the witness in court or 
 elsewhere." Citing 4 Phil. Ev. (Cowtn 
 & Hill's, notes) part 2, p. 734. 
 
 ^ Ackler v. Hickman, 63 Ala. 494, 
 498; s. c, 35 Am. Rep. 54. 
 
 This view has also been taken by 
 the Supreme Court of the United 
 States in a very recent case. The 
 memorandum in question had been 
 made by the witness twenty months 
 before its date. The witness testified 
 that he had no present recollection of 
 
468 
 
 EXAMINATIOK. 
 
 [chap. XXIV. 
 
 On the other hand, the opposite view is at least as strongly 
 fortified by judicial decisions. Thus it has been frequently laid 
 down that wliere a witness has so far forgotten the facts of 
 the transaction that he cannot recall them, even after looking 
 at the memorandum ; yet, if he testifies that he once knew 
 them and made a memorandum of them at the time or soon 
 after they transpired, which he intended to make correct, and 
 which he believed to be correct, such memorandum may be 
 used to refresh his memory, although he has no present recol- 
 lection of them.^ This rule has been held to apply to the 
 case of a notary's clerk who had forgotten his entry of notice 
 of dishonor; 2 to a memorandum of a gambling transaction;^ 
 to notes of evidence of counsel ; * to the entry of a bank 
 clerk ; ^ to the entries of charges for penalties of a town 
 clerk ; ^ to entries in corporate books ; '^ and to lists made by 
 another, which were signed and sworn to by the witness.^ 
 
 The limitations upon this doctrine are believed to be as 
 
 the transaction, or no remembrance 
 of it otlierwise than as stated in the 
 paper, hut that he knew it took place 
 because he had so stated it in the 
 memorandum, as it was his duty to 
 do, and because his liabit was never 
 to sign a statement unless it was true, 
 and that he was willing to positively 
 swear that it was true. The" trial 
 court admitted the evidence, but on 
 appeal the Supreme Court reversed 
 •this ruling. Maxwell v. Wilkinson, 
 113 V. S. G56. See also to similar 
 effect, Nolin v. Parmer, 21 Ala. 66, 
 70 ; Memphis &c. R. R. Co. v. Maples, 
 63 Ala. 601. See State v. Collins, 15 
 So. Car. .375 ; s. c, 40 Am. Rep. 697, for 
 full discussion of the rule. Murray v. 
 Cunningham, 10 Neb. 167, 170 ; Web- 
 ster V. Clark, 30 N. H. 245, 254 ; Marcly 
 V. Sohultz, 29 N. Y. 346, 351, approved 
 in McCormick u. Penn. Centr. R. R., 
 49 N. Y. 315. 
 
 1 Howard v. McDonough, 77 N. Y. 
 592; Costello o. Crowell, 133 Mass. 
 3.32, 355; Abbott's Trial Ev., p. 322, 
 par. 38 ; Wernag v. C. & A. R. R. Co. 
 (Kansas City Court of App.), 22 Cent. 
 L. J. XXXV. Mo. Add. 
 
 Where check-slips are made by a 
 clerk in the ordinary course of busi- 
 ness, showing the number of cars 
 
 shipped and the descriptive mark of 
 the goods, they are admissible with 
 the testimony of the clerk that they 
 were truly made by him, and that the 
 goods were marked and shipped as 
 thereby indicated, although the wit- 
 ness has no present recollection of 
 the transaction. Shiedley v. State, 
 23 Ohio St. 130. 
 
 Where the point is to prove pro- 
 test and notice, a notary may refer to 
 an entry in his book where it was his 
 habit to make such entries at the 
 happening of the event, although he 
 has no independent recollection of the 
 fact in question, his belief being based 
 altogether upon such entry. Bank of 
 Tennessee v. Cowan, 7 Humph. (Tenn.) 
 70. 
 
 2 Haige v. Newton, 1 Rep. Const. 
 Ct. (S. C.) 423. 
 
 8 State V. Rawls, 2 Nott. & M. 
 (S. C.) 334; approved in Halsey u. , 
 Sinsebaugh, 15 ST. Y. 485, 487. 
 
 4 Clark V. Vorce, 15 Wend. (N. Y.) 
 193. 
 
 s Bank v. Boraef, 1 Rawle (Pa.) 
 152. 
 
 ^ Corp. of Columbia v. Harrison, 
 2 Rep. Const. Ct. (S. C.) 213. 
 
 f Mattocks V. Lyman, 16 Vt. 113. 
 
 8 Davis V. Field, 56 Vt. 426. 
 
§ 284.J BEFKESHING THE MEMORY. 469 
 
 follows: It is confined to cases where the "uniform and 
 unvarying practice " is to note the fact immediately after the 
 event." ^ The memorandum must have been " presently 
 committed to writing " by the witness,^ " while the occur- 
 rences mentioned in it were fresh in his recollection ;" ^ it 
 must have been " written contemporaneously with the trans- 
 action,"* or "nearly so with the fact deposed to." The fact 
 that the memoranda are made in the regular course of busi- 
 ness is not alone sufficient, unless contemporaneous witli the 
 transaction to which it relates.^ Some cases restrict the rule 
 to entries made in the regular course of business, but others 
 hold that it is applicable to every species of memoranda. 
 
 The rule also requires the memorandum to be an original 
 entry and not a copy ; that it be made by the witness himself, 
 or, where it is made by another, that it be verified by the wit- 
 ness soon after it is made, and that he knows from his own 
 personal knowledge of the transaction that the facts therein 
 recorded are correct : at least it is believed that no case has 
 extended it farther.^ 
 
 § 284. When the IVIemoranda, etc., are themselves Evidence. 
 — In the second class of cases examined in the last section, 
 it would seem that the memorandum referred to by the witness 
 is, in most cases, itself admissible in evidence. Indeed, inas- 
 much as the witness does not testify from any independent rec- 
 ollection of the matter, but simply to the truth of what is 
 stated in the memorandum, because of his faith in its authen- 
 ticity and correctness, he thereby makes it evidence in the 
 ease by his oral testimony, and if his testimony is admissible, 
 the memorandum is also in connection therewith : and so it has 
 been held.^ If, however, the witness has any recollection of 
 
 1 1 Whart. Ev. § 518, and cases in23CentralLaw Journal, p. 53, where 
 cited in note 1. this subject is more fully treated. 
 
 2 Lord Holt in Lindwell v. Sand- ' Watson v. Walker, 23 N. H. 471 ; 
 well, Comb. 445; s. c. Holt, 295. Webster v. Clark, 30 N. H. 245; Tut- 
 
 2 Lord EUenborough in Barrough tie v. Eobinson, 33 N. H. 104. 
 
 .;. Martin, 2 Camp. 112. A writing, made by a witness at 
 
 * Ch. Justice Tinsdall in Stemkel- the time of a. transaction, for the 
 
 ler V. Newton, 9 Car. & P. 313. purpose of stating truly its particu- 
 
 ^ Chaffee v. U. S., 18 Wall. (XT. S.) lars, is evidence of what it contains, 
 
 516 ; Ins. Co. v. Weide, 9 Id. 677 ; s. o., although the witness has forgotten 
 
 14 Id. 375 : Nicholls v. Webb, 8 Wheat, the facts and circumstances. Seayy 
 
 (U. S.) 326, 337. v. Dearborn, 19 N. H. 351; Mims v. 
 
 ^ See article by Eugene McQuillen, Sturdevant, 36 Ala. 636. 
 
470 
 
 EXAMINATION. 
 
 [chap. XXIV. 
 
 the matters stated in the memoranda, independent thereof, 
 the paper itself is not admissible ; ^ nor is it admissible, in 
 any case, to jjrove a fact not material to the issue.^ 
 
 § 285. Proper Practice where 'Witness is blind or cannot 
 read. — Where the witness is blind at the time of the trial, a 
 contemporaneous writing made by himself — in the case in 
 hand, an unstamped receipt for money given by him — though 
 otherwise inadmissible, may nevertheless be read to the wit- 
 ness to refresh his recollection.^ So, also, where a paper is 
 signed with the mark of a witness who cannot I'ead or write, 
 it may be read over to him for the same purpose.* 
 
 1 Meacham v. Pell, 51 Barb. (N. Y.) 
 65. The rule is well stated in a re- 
 cent Alabama case : " A witness may 
 refresh his memory by examining a 
 memorandum made by liimself, or 
 known and recognized by him as stat- 
 ing the facts truly, when, after such 
 examination, he can testify to tlie 
 facts as matter of independent recol- 
 lection, but the memorandum is not 
 thereby made evidence. If the mem- 
 ory of the witness is not refreshed 
 by an examination of tlie memoran- 
 dum so that he can testify to the 
 facts as matter of independent recol- 
 lection, but he can, nevertheless, tes- 
 tify that, at or about the time the 
 memorandum was made, he knew its 
 contents, and he knew them to be 
 correct and true, his testimony and 
 the memorandum are both competent 
 evidence ; but if he did not know the 
 contents of the memorandum to be 
 true when it was made, although he 
 saw it made, the memorandum is not 
 admissible evidence." Acklen v. Hick- 
 
 man, 63 Ala. 494 ; s. c, 35 Am. Rep. 
 54. 
 
 2 Wolfborough ... Alton, 18 N. H. 
 185. 
 
 For other cases holding the memo- 
 randa inadmissible, see Olds v. Powell, 
 10 Ala. 393; Rutherford v. Brancli 
 Bank at Mobile, 14 Ala. 92; Com- 
 monwealth V. Jeffs, 132 Mass. 5 ; But- 
 ler V. Benson, 1 Barb. (N. Y.) 526; 
 Bissell V. Russell, 23 Hun (N. Y.) 
 659; Selover .,. Rexford, 52 Pa. St. 
 308. 
 
 See also a learned discussion of 
 the earlier cases in note 587, 2 Phil. 
 Ev. 5th Amer. Ed. 
 
 3 I'er Lord Tenderden, in Catt v. 
 Howard, 3 Stark. 3. 
 
 * Commonwealth o. Fox, 7 Gray 
 (Mass.) 585, where, however, it is 
 held that it should not be read in the 
 presence of the jury, but that the 
 witness should withdraw with one of 
 the counsel on each side, and have it 
 read to him by them, without com- 
 ment. 
 
Part IV. 
 
 OPINIONS. 
 
PAET IV. — OPINIONS. 
 
 CHAPTER XXV. 
 
 OPINIONS OF NON-PEOPBSSIONAL WITNESSES. 
 
 § 286. The General Rule excluding Opinions. 
 
 § 287. Scope and Extent of the Rule. 
 
 § 288. Its Limits and Exceptions. 
 
 § 289. Opinions as to Value. 
 
 § 290. Opinions as to Amount of Damage. 
 
 § 291. Opinions as to Sanity and Mental Capacity. 
 
 § 286. The General Rule excluding Opinions. — It is an 
 elementary principle of the law of evidence that the opinions 
 of non-professional witnesses are not admissible, except in a 
 few special cases, resting upon peculiar circumstances.^ Such 
 a witness must testify to facts themselves, and he will not 
 be allowed to testifj' to mere conclusions or deductions from 
 facts ; '■^ or his impressions, suppositions, or understanding of 
 a matter.^ To deduce conclusions from facts proved is the 
 
 1 Berry v. State, 10 Ga. 511 ; Mo- Albatross v. Wayne, 16 Ohio, 513 ; 
 
 bile &c. Ins. Co. v. McMillan, 31 Ala. Given v. Albert, 5 Watts & S. (Fa.) 
 
 711; Robertson v. Stark, 15 N. H. 338; Jones v. Hatchett, 14 Ala. 743; 
 
 109 ; Spear y. Richardson, 34 N. H. Andrews v. Jones, 10 Ala. 460 ; Meal- 
 
 428; Gibson v. Williams, 4 Wend, ing v. Pace, 14 Ga. 596; Keener i/. 
 
 (N. Y.) 820; Zachary u. Swanger, 1 State, 18 Ga. 194; Dawson v. Calla- 
 
 Oreg. 92; Carr v. Nothern Liberties, way. Id. 573; Iglehart k. Jernegan, 
 
 85 Pa. St. 324 ; Lester v. Pittsford, 16 111. 513 ; Selden v. Bank of Com- 
 
 7 Tt. 161. merce, 3 Minn. 166 ; Torrance v. Hurst, 
 
 ' Gregory v. Walker, 38 Ala. 26; 1 Miss. (Walk.) 403; Paige v. Haz- 
 
 Perry K. Graham, 18 Ala. 822; Dick- ard, 5 Hill (N. Y.) 603; Woodin v. 
 
 erson v. Johnson, 24 Ark. 251 ; Jones People, 1 Park. (N. Y.) Cr. 464 ; Hay- 
 
 u. Childs, 2 Dana (Ky.) 25; McCon- nie v. Baylor, 18 Tex. 498; Cooper v. 
 
 nell V. New Orleans, 15 La. Ann. 410 ; State, 23 Tex. 331. 
 Sparrti. Wellman, 11 Mo. 280; More- » Chaires v. Brady, 10 Fla. 183; 
 
 house K.Mathews, 2 N.Y. 514; Crounse Hall v. State, 40 Ala. 698; Lowry v. 
 
 V. Fitch, 14 Abb. (N. Y.) Pr. 346; Harris, 12 Mmn. 255; Lewis r. Bacon, 
 
 Bailey v. Pool, 13 Ired. (N. C.) L. 404 ; 41 Me. 448 ; Wetherell v. Patterson, 
 
474 
 
 OPINIONS. 
 
 [chap. XXV. 
 
 province of the jury, not that of the witness.^ Thus, the 
 testimony of a witness that he understands that a person is 
 dead, is not sufficient evidence of his death.^ So, the fact 
 that "he considered" a certain transaction a loan, is not 
 evidence ; ^ nor can he state that a party was " largely em- 
 barrassed with debts," that being a statement of conclusions, 
 and not of facts.* 
 
 § 287. Scope and Extent of the Rule. — • (1} In general. 
 The admissibility of opinion evidence, whether of experts or 
 ordinary witnesses, should be confined to cases in which, 
 from the very nature of the subject, facts disconnected from 
 such opinions cannot be so presented to a jury as to enable 
 them to pass upon the question with the requisite knowledge 
 and justice.^ If the jury may be supposed to have the same 
 degree of knowledge of the subject as the "witness, his opin- 
 ion is in no case admissible.^ So held of the opinion of a wit- 
 ness as to the age of a person, based entirely upon his 
 appearance.'^ Such evidence is an invasion of the province 
 of the jury.^ Thus a witness cannot be heard to give an 
 
 31 Mo. 458; Hibbard v. Russell, 16 
 N. H. 410; Braley v. Braley, Id. 426; 
 Ires V. Hamlin, 5 Cush. (Mass.) 534 ; 
 Elliott V. Sanderson, 10 Mo. 482. 
 
 1 Largan ■;. Central R. R. Co., 40 
 Cal. 272 ; Gavisk v. Pacific R. R. Co., 
 49 Mo. 274. 
 
 2 Tibbetts v. Flanders, 18 N. H. 
 284. 
 
 8 Saltmarsh u. Bower, 34 Ala. 
 613. 
 
 * Massey v. Walker, 10 Ala. 288 ; 
 Nuckalls ... Pinkston, 38 Ala. 615; 
 Babcock v. Middlesex &c. Bank, 28 
 Conn. 302. 
 
 ^ Parker v. Chambers, 24 Ga. 518. 
 
 In speaking of the competency as 
 evidence of the opinion of non-profes- 
 sional witnesses, tlie Supreme Court 
 of Massachusetts says ; " The compe- 
 tency of this evidence rests upon two 
 necessary conditions : first, that the 
 subject-matter to which the testimony 
 relates cannot be reproduced or de- 
 scribed to the jury precisely as it 
 appeared to the witness at the time; 
 and second, that the facts upon which 
 the witness is called to express his 
 opinion are such as men in general are 
 
 capable of comprehending and under- 
 standing. When these conditions have 
 been complied with or fulfilled in a 
 given case, the court must then pass 
 upon the question, whether the wit- 
 ness had the opportunity and means 
 of inquiry, and was careful and intel- 
 ligent in his observation and examina- 
 tion. It is not the mere qualification 
 of the witness, but the extent and 
 thoroughness of his examination into 
 the specific facts to which the inquiry 
 relates, and the general character of 
 those facts, as affording to one, having 
 his opportunity to judge, the requisite 
 means to form an opinion. The same 
 rule applies to this class of testimony, 
 as to the testimony of experts, whether 
 the expert is competent by his study 
 or business, and whether he has qual- 
 ified himself to testify, or had proper 
 opportunity to examine, are prelim- 
 inary questions for the court." Com. 
 V. Sturtevant, 117 Mass. 122, 137. 
 
 " Sowers v. Dukes, 8 Minn. 23; 
 Cooper V. State, 23 Tex. 331. 
 
 ' Morse v. State, 6 Conn. 9. 
 
 8 Bluitt V. State, 12 Tex. App. 39 ; 
 Eaton V. Woolly, 28 Wis. 628. 
 
§ 287.] OPINIONS OF NON-PEOFESSIONAL ATITNESSES. 475 
 
 opinion that an express company held itself out as a common 
 carrier ; ^ or that a fire probably commenced in a certain part 
 of a building ; ^ or as to whetlier a conversation carried on at 
 one place (not overheard by him) could be heard at another.^ 
 
 To allow a witness to give an opinion upon the very issue, 
 upon the question referred to the jury for decision, is error 
 calling for reversal.* Nor can he be allowed to testify as to 
 his opinion, based upon the testimony he may have heard 
 given in the cause, unless it is in a matter of skill, and the wit- 
 ness is an expert.^ In the case of an ordinary, non-expert 
 witness, it is absolutely essential that he should have had 
 the means of personal observation, and should have acquired 
 a personal knowledge of the facts, as distinguished from a 
 knowledge acquired from the testimony of others.^ 
 
 (2) Questions of science, shill, or trade. Where the inquiry 
 is into a subject-matter, the nature of which requires some 
 peculiar habit, study, or scientific knowledge to enable one 
 to understand it and to form a correct judgment thereon, the 
 opinion of a non-expert witness is not admissible.'^ Thus, an 
 ordinary witness cannot testify that a house might have been 
 saved from destruction by fire, if a certain aperture had 
 been closed;^ or as to the state of repair of a highway, or 
 bridge, some months prior to an accident ; ^ or the capacity 
 of a locomotive to draw a train ; ^^ or whether a certain boot 
 made a certain footprint.'^ So, also, an ordinary witness 
 cannot be allowed to testify as to what is meant by a " per- 
 manent policy " of insurance ; ^^ or that a wound inflicted upon 
 a horse was sufficient to cause its death ; ^^ or that he had seen 
 writing extracted by the use of chemicals from a piece of 
 
 1 United States Express Co. v. An- ' Wagner v. Jacoby, 26 Mo. 530 ; 
 thony, 5 Kan. 490. Linn v. Sigsby, 67 111. 75 ; Luning v. 
 
 2 Wood u. Chicago &o. K. Co., 40 State, 1 Chand. (Wis.) 178. 
 
 Wis. 582. 8 Gibson v. Hatchett, 24 Ala. 201. 
 
 ' Hardenburgh v. Cockroft, 5 Daly ' Hutchinson v. Methuen, 1 Allen 
 
 (N. Y.) 79. S. P., Wheeler v. Blandin, (Mass.) 33 ; Bliss v. Wilbraham, 8 
 
 22 N. H. 167 ; 24 Id. 168. Allen (Mass.) 564 ; Crane v. North- 
 
 1 Hathaway v. Brown, 22 Minn, field, 33 Vt. 124. 
 
 214. 1' Sisson v. Clereland &c. K. K. 
 
 5 Daniels v. Mosher, 2 Mich. 183; Co., 14 Mich. 489. 
 
 Cincinnati &c. Ins. Co. v. May, 20 " Clough v. State, 7 Neb. 320. 
 
 Ohio, 211; Paige v. Hazard, 5 Hill ^^ First Baptist Church w. Brooklyn 
 
 (N. Y.) 604. &c. Ins. Co., 28 N. Y. 153. 
 
 ^ Eyerman u. Sheehan, 52 Mo. 221 ; 13 Harris v. Panama K. K. Co., 3 
 
 Sydleman v. Beckwith, 43 Conn. 9. Bosw. (N. Y.) 77. 
 
476 OPINIONS. [chap. XXV. 
 
 paper which he held in his hand at the trial.^ Nor can a wit- 
 ness ignorant of anatomy give his opinion as to the sex of a 
 person from an examination of the skeleton.^ In all these, 
 and many other cases to be examined later on,^ the special 
 knowledge of an expert is required. 
 
 (3) Purpose or intention. As a general rule a witness 
 should not be permitted to express an opinion as to the 
 intent, motive, or purpose of another person in doing a given 
 act or making a given statement * — as that it was or was 
 not the intention of the deceased to kill the prisoner ; ^ or 
 that the conduct of the parties to an action for breacli of 
 promise, evinced a mutual attachment ; ^ or that the grantee 
 in a deed had or had not an undue influence over the grantor ; "^ 
 or that money in the possession of a prisoner was " obtained 
 honestly " ; ^ or as to defendant's purpose in visiting plain- 
 tiff's wife in her husband's absence ; ^ or as to the intent of 
 the partners of the witness in making an assignment for 
 beneiit of creditors.^" But it seems that it is proper to inter- 
 rogate a witness who observed the operations of a crowd who 
 followed and killed a person, whether he discovered any 
 difference of purpose among those forming the crowd.^^ But 
 the true rule undoubtedly is, that if the witness had no better 
 opportunity of judging of the intent or purpose of the act in 
 question, than that afforded the jury by the narration of the 
 facts of the transaction, his opinion as to such intent or pur- 
 pose should be excluded.^^ 
 
 (4) Effect or result of words or acts. A witness who testi- 
 fies in regard to conversations had with a party, must state 
 either the language used, or the substance thereof; the inv- 
 
 ^ Otey V. Hoyt, 2 Jones (N. C.) he may testify to his own intent in so 
 
 L. 70. doing. S. P., Snow u. Paine, 114 Mass. 
 
 2 Wilson V. State, 41 Tex. 320. 510. But it has been held tliat the 
 
 8 Infra, § 292. See also Moulton writer of a letter who is not a party 
 
 V. Scruton, 39 Me. 287 ; Holden v. to the action cannot be permitted to 
 
 Robinson Mfg. Co., 65 Me. 215. testify as to the sense in which he 
 
 * Clement v. Cureton, 36 Ala. 120. used a word occurring therein. Har- 
 
 5 Hawkins t;. State, 25 Ga. 207 ; risou v. Kirlce, 38 N. Y. Superior Ct. 
 
 Hudgins v. State, 2 Ga. 173. 396. Compare Howe Machine Co. v. 
 
 o Leckey v. Bloser, 24 Pa. St. 401. Souder, 58 Ga. 64. 
 
 ' Dean v. Fuller, 40 Pa. St. 474. " Brennan v. People, 15 111. 511. 
 
 8 Johnson v. State, 35 Ala. 370. 12 state v. Garvey, 11 Minn. 154. 
 
 9 Cox V. Whitefleld, 18 Ala. 738. See also Wallis u. Kandall, 81 N. Y. 
 1" Spaulding u. Strang, 36 Barb. 164 ; Debbs v. State, 43 Tex. 650. 
 
 (N. Y.) 310, where, howeyer, it is said 
 
§ 287.] OPINIONS OF NON-PROFESSIONAL WITNESSES. 477 
 
 pression left upon his mind by the conversation is not evi- 
 dence ; ^ nor is his opinion as to whether language used was 
 calculated to induce one to sign an instrument througli fear.^ 
 So, whether language was used by the prisoner in a manner 
 to disturb the family of the witness, is mere matter of 
 opinion.^ 
 
 For analogous reasons, a witness cannot state his opinion 
 as to the effect of particular charges in an account;* or the 
 effect upon the credit of a firm, of the suing out of an at- 
 tachment against its property ; ^ or the probable effect of the 
 construction of a railroad over a certain piece of land ; ^ or 
 that of a husband's conduct towards his wife.'^ But this rule 
 does not apply where the witness merely details the nature 
 and extent of the consequences of an act, and states only 
 facts within his knowledge, and not matters of opinion 
 requiring professional skill in their just formation.^ 
 
 (5) Various illustrations of the extent of the rule. It may 
 be stated as a general proposition that an unskilled witness 
 cannot be heard to express an opinion as to the existence or 
 prevalence of a certain disease in a particular locality,^ or 
 that a particular person is afflicted with a certain disease,'" and 
 he (the witness) thought he would die.^' So, also, a non- 
 expert witness cannot testify that a particular woman was 
 once in a state of pregnancy.'^ And the rule which excludes 
 
 1 Elbin V. Wilson, 33 Md. 135; i» Lushv.McDaniel.lSIred. (N.C.) 
 Cutler V. Carpenter, 1 Cow. (N. Y.) 81. 485 ; Thompson o. Bertrand, 23 Ark. 
 
 2 Johnson v. Ballew, 2 Port. (Ala.) 730 ; Chicago See. R. R. Co. v. George, 
 29. S. P., Law V. Scott, 5 Har. & J. 19 111. 510, 516; Shawneetown v. Ma- 
 (Md.) 438, where, however, it is said son, 82 111. 337, 339. But see infni, 
 the witness may testify as to the eilect § 288. 
 
 of hearing the words upon his own ^^ Blackman v. Johnson, 85 Al.n. 
 
 subsequent action. 252. 
 
 3 Lumbkin u. State, 12 Tex. App. In one case it is said that "no wit- 
 341. S. P., People v. Tamkin, 62 Cal. ness, medical or otherwise, can be 
 468. allowed to give testimony from his 
 
 * United States v. Willard, 1 Paine observation concerning the nature of 
 
 (U. S.) 539. a person's illness or its causes, with- 
 
 5 Donnell v. Jones, 13 Ala. 490. out proof both of a sufficient examina- 
 
 ° Milwaukee &c. R. R. Co. v. Eble, tion, and such knowledge or experi- 
 
 4 Chand. (Wis.) 72. ence as will qualify him to offer an 
 
 '' Richards v. Richards, 37 Pa. St. opinion." People v. Olmstead, 30 
 
 225. But see Panton v. Norton, 18 Mich. 434. S. P., McLean „. State, 
 
 111. 496. 16 Ala. 672 ; Grattan v. Metropolitan 
 
 8 Creed v. Hartman, 8 Bosw. (N. Y.) Life Ins. Co., 80 N. Y. 281. 
 
 123. 12 Boies v. M'Allister, 12 Me. 308. 
 
 9 Evans v. People, 12 Mich. 27. 
 
478 OPINIONS. [chap. XXV. 
 
 the "conclusion " of a witness prohibits him from giving his 
 opinion upon matters of legal or moral obligation. ^ 
 
 § 288. Limits and Exceptions to the Rule. — The rule we 
 are considering is subject to well recognized exceptions, and 
 these exceptions are " not confined to the evidence of experts 
 testifying on subjects requiring special knowledge, skill, or 
 learning; but include the evidence of common observers, 
 testifying to the results of their observations made at the 
 time in regard to common appearances or facts, and a condi- 
 tion of things which cannot be reproduced and made palpable 
 to a jury. . . . What is thus given by a witness is not a 
 mere opinion, but a conclusion of fact to which his judgment, 
 observation, and common knowledge have led him in regard 
 to a subject-matter which requires no special learning or 
 experiment, but which is within the knowledge of men in 
 general." ^ But the opinion must be founded on the personal 
 observation of the witness, not upon the testimony of others 
 or on hypothetical cases put.^ 
 
 Resulting from this necessity, the opinions of ordinary 
 witnesses are often received as the only way of arriving at 
 any accurate conclusion as to the facts involved in the issue. 
 Such witnesses may therefore, in many cases, give their opin- 
 ions as to the identity of a person or thing ;* or the appear- 
 
 1 For instances of the exclusion of & S. (Pa.) 447; Tisher v. Beibert, 54 
 
 opinions involving conclusions of law Pa. St. 460 ; Clougli u. Patrick, 37 
 
 or fact, see Winter v. Stock, 29 Cal. Vt. 421. 
 
 437; Meredith v. Picket, 9 Wheat. ^ Conjmou^ealthr.Sturtevant, 117 
 (IT. S.) 574; Lindauer v. Delaware Mass, 122. S. P., Sydleman v. Beck- 
 Ins. Co., 13 Ark. 461 ; McClintock v. with, 43 Conn. 9 (reviewing many 
 Lara, 23 Ark. 215 ; Banks v. Gidrot, cases) ; Eyerman v. Sheehan, 52 Mo. 
 19 Ga. 421; Massure w. Noble, 11 111. 221. Compare Taylor v. Town of 
 531 ; Wiggins o. Holley, 11 Ind. 2 ; Monroe, 43 Conn. 36. 
 Williams v. Dewitt, 12 Ind. 309 ; Dan- ^ Sydleman v. Beckwith, supra. 
 forth V. Carter, 4 Iowa, 230; Wil- * Gentry v. M'Minnis, 3 Dana 
 liams <,. Soutter, 7 Iowa, 435 ; Smith (Ky.) 382 ; Com. v. Williams, 105 
 V. Commonwealth, 6 B. Mon. (Ky.) Mass. 62 ; State v. Babb, 76 Mo. 501 ; 
 21 ; Marcy v. Sun Ins. Co., 11 La. King v. N. Y. Cent. &c. R. R. Co., 72 
 Ann. 748; Bennett v. Clemence, 6 N. Y. 607; Irwin v. Bear, 4 Ye.itcs 
 Allen (Mass.) 10 ; First Nat. Bank u. (Pa.) 262; Page v. Commonwealth, 
 Reed, 36 Mich. 263 ; Roehl v. Baasen, 27 Gratt. (Va.) 954. But for qualifi- 
 8 Minn. 26 ; Dunlap v. Hearn, 37 cations of this rule, see Whizenant v. 
 Miss. 471; Atwood v. Meredith, 37 State, 71 Ala. 383; Gorhamw. Gorham, 
 Miss. 635 ; Young v. Power, 41 Miss. 41 Conn. 242 ; Goodwyn v. Goodwyn, 
 197 ; Dublin Case, 38 N. H. 459 ; Peo- 20 Ga. 600 ; People v. Williams, 17 N. 
 pie a. Lacoste, 37 N. Y. 192 ; AVood- Y. Week. Dig. 356. In the case of 
 burn V, Farmers' &c. Bank, 5 Wattg identity the better opinion seems not 
 
§ 288.] OPINIONS OF NON-PEOFESSIONAL WITNESSES. 479 
 
 ance of a person as respects sobriety or intoxication ; ^ or 
 whether such person is "a man of known intemperate 
 Imbits;"^ or appears to be sick or in good health ;3 or as to 
 the necessity of medical services in a particular case, and the 
 length of time such necessity continued.* So an ordinary 
 witness may testify as to the appearance of a wound — that 
 it was inflamed and tender to the touch — and describe its 
 outward effect upon the victim ; ^ or give his opinion in con- 
 nection with the facts, as to the soundness or habits of a 
 horse or other animal, with the condition or disposition of 
 which he is acquainted;^ or as to time, duration, distance, 
 dimension, velocity, etc ; '' or the character or kind of liquor 
 
 to require a statement of the facts 
 upon which tlie opinion is based, for 
 the identification may be by the mere 
 expression of the countenance, which 
 cannot be described ; and the witness 
 may be correct although unable to 
 describe a single feature, or to give 
 the color of the hair, or of the eyes, 
 or the full particulars of the dress.* 
 
 1 Dimick v. Downs, 82 111. 370; 
 Castner v. Sliker, 4 Vr. (N. J.) 95; 
 affirmed, Id. 507. 
 
 2 Stanley c. State, 26 Ala. 26. 
 But see a later case directly to the 
 contrary (Smith o. State, 55 Ala. 1) 
 where, however, whether the person 
 was " a man of known intemperate 
 habits " was the direct question at 
 issue, which fact would seem to distin- 
 guish the two cases. 
 
 In a Georgia case, the facts on 
 which such opinion is based are re- 
 quired in connection with the opinion, 
 and probably this requirement is gen- 
 eral. Peirce v. State, 53 Ga. 365. 
 See also Aurora v. Hillraan, 90 111. 
 61. 
 
 3 Milton V. Rowland, 11 Ala. 732 ; 
 Bennett v. Fail, 26 Ala. 605 ; Barker 
 V. Coleman, 35 Ala. 221 ; Blackman v. 
 Johnson, Id. 252; Stone v. Watson, 
 37 Ala. 279; Higbie v. Guardian 
 Mutual Life Ins. Co. 53 N. Y. 603; 
 s. c, 66 Barb. 462 ; Sliawneetown v. 
 Mason, 82 111. 337; Brown v. Lester, 
 Ga. Dec. Pt. I. 77 ; Townsdin v. Nutt, 
 
 19 Kan. 282. See Thompson v. Ber- 
 trand, 23 Ark. 730. To the contrary, 
 see Bell v. Morrisett, 6 Jones (N. C.) 
 L. 178; unless he testifies to facts 
 showing the opinion to be true. Sei- 
 bles V. Blackwell, 1 McMull. (S. C.) 
 56 ; Southern Life Ins. Co. v. Wilkin- 
 son, 53 Ga. 585. 
 
 * "But, in a question of this kind, 
 any person of intelligence is capable 
 of judging of the necessity of medical 
 advice and services. It is universally 
 acted upon by all classes of mankind, 
 and we are not disposed to lay down 
 a rule that none but a physician is 
 competent to prove that a person is 
 sick, or so sick as to require medical 
 advice." Chicago &c. R. R. Co. p. 
 George, 19 111. 510. See also Parker 
 V. Boston &c. Steamboat Co., 109 Mass. 
 449 ; distinguishing Ashland v. Marl- 
 borough, 99 Id. 48. 
 
 6 Craig V. Gerrish, 58 N. H. 513. 
 
 " Sydleman v. Beckwith, 43 Conn. 
 9; Campbell v. State, 23 Ala. 44; 
 Norton v. Moore, 3 Head (Tenn.) 
 480. See also Willis v. Quimby, 11 
 Fost. (N. H.) 485; Whittier v. Frank- 
 lin, 46 N. H. 23; Spear D.Richardson, 
 34 N. H. 428 ; State „. Shinborn, 46 
 N. H. 497. 
 
 ' State V. Foiwell, 14 Kans. 105; 
 Eastman v. Amoskeag Manuf . Co., 44 
 N. H. 143 ; Hackett v. Boston &c. R. 
 R. Co., 35 Id. 390; Detroit &c. R. E. 
 Co. V. Van Steinburg, 17 Mich. 99. 
 
 * See Sydleman v. Beckwith, 43 Conn. 13. 
 
480 OPiNioxs. [chap. XXV. 
 
 sold or drank ; ^ or the age, appearance, or nationality of a 
 particular individual.^ 
 
 Again, ownersliip,^ and possession,* solvency or insolvency,^ 
 care or negligence,^ the state of the vireather,''' quantity and 
 contents,^ and numberless other topics of common observa- 
 tion, have been held to involve qiiestions upon which the 
 opinions of non-professional and unskilled witnesses are ad- 
 missible in evidence, especially when accompanied with a 
 statement of the facts forming the bases of such opinions.^ 
 
 § 289. Opinions as to Value. — The opinions of ordinary 
 witnesses acquainted with the value of property are often 
 admitted from necessity, even though their knowledge is not 
 the result of peculiar skill in any particular branch of busi- 
 ness, or department of science.^" " These opinions are admit- 
 ted, not as being the opinions of experts, strictly so called, for 
 they are not founded on special study or training, or profes- 
 sional experience, but rather from necessity, upon the ground 
 that they depend upon knowledge which any one may acquire, 
 but which the jury may not have, and that they are the most 
 satisfactory, and often the only attainable evidence of the 
 fact to be proved." ^^ But in all cases, even where the wit- 
 
 1 Commonwealth v. Timothy, 8 But see Sterling Bridge Co. u. Pearl, 
 Gray (Mass.) 480. See also State o. 80 111. 251. 
 
 Miller, 53 Iowa, 84. f Curtis v. Chicago &c. E. R. Co., 
 
 2 Foltz V. State, 33 Ind. 215 ; Morse 18 Wis. 312. 
 
 V. State, 6 Conn. 9 ; De Witt v. Baily, s Woodward v. Gates, 38 Ga. 205 ; 
 
 17 N. Y. 344; Benson o. McFadden, Frantz <;. Ireland, 66 Barb. (N. Y.) 
 
 50 Ind. 431 ; Kansas Pacific E. E. Co. 386 ; Townsend v. Brundage, 4 Hun 
 
 !>.Miller,2 Colo. 442; Culver i-.Dwight, (N. Y.) 264; Sickles v. Gould, 51 
 
 6 Gray (Mass.) 444. How. (N. Y.) Pr. 22. 
 
 3 Nelson i. Iverson, 24 Ala. 9. ^ For further illustrations, see 
 * Jones V. Merrimack River Lum- Clinton v. Howard, 42 Conn. 294; 
 
 ber Co., 31 N. H. 381. Innis u. The Senator, 4 Cal. 5; Com- 
 
 ^ Provided the opinion is accom- monwcalth v. Sturtivant, 117 Mass. 
 
 panied by tlio facts upon which it is 122 ; Commonwealth v. Dorsey, 103 
 
 based. Crawford v. Andrews, G Ga. Mass. 412; Commonwealth v. Pope, 
 
 244 ; Royall v. McKenzie, 25 Ala. 363 ; 103 Mass. 440 ; Patrick v. The J. Q. 
 
 Riggins V.Brown, 12 Ga. 271; Blanch- Adams, 10 Mo. 73; State v. Morris, 
 
 ard V. Mann, 1 Allen (Mass.) 433 ; 84 N. C. 756 ; State v. Eeitz, 83 N. C. 
 
 Thompson ... Hall, 45 Barb. (N. Y.) 034 ; State v. Folwell, 14 Kans. 105 ; 
 
 214; Iselin u. Peck, 2 Robt. (N. Y.) State v. Shinborn, 46 N. H. 497. 
 029; Sherman i-.BloJgett, 28 Vt. 149; lo Swan ... Middlesex, 101 Mass. 
 
 Richardson v. Hitchcock, Id. 757 ; 173 ; Wyman v. Lexington &c. E. R. 
 
 Reed v. Timmins, 52 Tex. 84. Co., 13 Mete. (Mass.) 316. 
 
 '' Gahagan f. Boston &c. R. E. Co., 'i Swanu. Middlesex, siyji-a. Whar- 
 
 1 Allen (Mass.) 187 ; Pennsylvania ton, in his work on Evidence (§ 447) 
 
 E. E. Co. r. Henderson, 51 Pa. St. 315 ; says : " Two essentials, therefore, exist 
 
 Couch w. Watson Coal Co., 46 Iowa, IT. to a proper estimate of value: First. 
 
§ 289.] OPINIONS OF NON-PEOFESSIONAL WITNESSES. 481 
 
 ness is claimed to be an expert, some foundation must be 
 laid for the introduction of his opinion, by showing that he 
 has had the means to form an intelligent opinion, " derived 
 from an adequate knowledge of the nature and kind of property 
 in controversy, and of its value," ^ and that, too, at the partic- 
 ular market in question.^ But it is held that it is not alvs^ays 
 necessary that a witness, in speaking of value, should speak 
 only from actual observation. In cases where, from the 
 destruction of personal property, no witness can be produced 
 who has had an opportunity to examine, and be conversant 
 with the value, the rule which allows the next best evidence 
 to be produced applies ; and the value may be ascertained 
 from persons conversant with propertj"- of that nature, after 
 they are made acquainted with its condition by the testimony 
 of others.^ 
 
 A knowledge of the intrinsic proper- 
 ties of tlie thing. Secoiidli/, A knowl- 
 edge of the state of the markets. As 
 to such intrinsic properties as are 
 occult, and out of the range of com- 
 mon observers, experts are required 
 to testify; as to the properties which 
 are cognizable by an observer of ordi- 
 nary business sagacity, being familiar 
 with the thing, such an observer is 
 permitted to testify." 
 
 1 Whitney v. City of Boston, 98 
 Mass. 315; Woodruff v. Imperial Eire 
 Ins. Co., 83 N. Y. 133. 
 
 2 Greeley v. Stilson, 27 Mich. 153. 
 8 Orr !■• New York, 04 Barb. (N.Y.) 
 
 106. But see Toledo &c. R. Co. v. 
 Smith, 25 Ind. 288. 
 
 In Bedell v. Long Island E. R. Co. 
 (44 N. Y. 367) it is said that there is 
 no rule of law, and there can be none, 
 defining how much a witness sliall 
 know of property before he can be 
 permitted to give his opinion as to its 
 value. He must have some acquaint- 
 ance with it, sufficient to enable him 
 to form some estimate of its value, 
 and then it is for the jury to deter- 
 mine how much weight such estimate 
 is entitled to. 
 
 The following decisions pass upon 
 the admissibility of opinions of ordi- 
 nary witnesses as to the value of per- 
 sonal property: Ward c^. Reynolds, 
 
 32 Ala. 384; Eawles v. James, 49 
 Ala. 183 ; Thatcher v. Kaucher, 2 Col. 
 T. 698; Butler v. Mehrling, 15 111. 
 488 ; Ohio &c. E. E. Co. v. Irwin, 27 
 111. 178; Same ;;. Taylor, Id. 207; An- 
 son V. Dwight, 18 Iowa, 241 ; Doane 
 V. Garretson, 24 Iowa, 351; Haskins 
 V. Hamilton Ins. Co., 5 Gray (Mass.) 
 432 ; Beecher v. Denniston, 13 Id. 
 354; Davis v. Elliott, 15 Id. 90; Ker- 
 mott V. Ayer, 11 Mich. 181; Conti- 
 nental Ins. Co. V. Horton, 28 Id. 173; 
 Thompson v. Moiles, 46 Id. 42; 
 Brackett o. Edgerton, 14 Minn. 174; 
 Krouschnable v. Knoblauch, 21 Id. 
 56 ; Burger v. Northern Pacific E. E. 
 Co., 22 Id. 343 ; Seyforth v. St. Louis 
 &c. E. E. Co., 52 Mo. 449 ; Whitfield 
 V. Whitfield, 40 Miss. 352; Beard v. 
 Kirk, 11 N. H. 397 ; Low v. Connecti- 
 cut &c. E. E. Co., 45 N. H. 370 ; Wat- 
 son V. Bauer, 4 Abb. (N. Y.) Pr. N. s. 
 273; Rogers v. Ackerman, 22 Barb. 
 (N. Y.) 134 ; Smith v. Hill, Id. 656 ; 
 Nellis V. McCarn, 35 Id. 115 ; Wells r. 
 Kelsey, 38 Id. 242 ; Seamans v. Smith, 
 46 Id. 320 ; Brown v. Hoburger, 52 Id. 
 15; Harris v. Panama R. R. Co., 3 
 Bosw. (N. Y.) 7 ; Joy v. Hopkins, 5 Den. 
 (N. Y.) 84; Thorn v. Couchman, 28 
 How. (N. Y.) Pr. 95; Todd v. War- 
 ner, 48 Id. 234 ; Kerr v. McGuire, 28 
 N. Y. 446; Merrill v. Grinnell, 30 
 N. Y. 594 ; Teerpenning v. Corn &c. 
 
482 
 
 OPINIONS. 
 
 [chap. XXV. 
 
 § 290. Opinions as to Amount of Damage. — As a general 
 rule it is not proper to ask a witness to state the amount of 
 damages caused by the acts of defendant for which suit is 
 brought. The witness should state the facts, and the jury- 
 should estimate the damages.^ Still, inasmuch as a witness 
 may give his opinion as to the value of a thing injured both 
 before and after the injury, this is the same thing, practically, 
 as if he testified to the amount of damage done.^ In some 
 
 Ins. Co., 43 N. Y. 279; Tiffany v. 
 Lord, 65 N. Y. 310 ; Hood v. Maxwell, 
 1 W. Va. 219; Noonan v. Ilsley, 22 
 Wis. 27. 
 
 The following cases treat of opin- 
 ions upon the question of the value 
 of land : Illinois &c. R. R. Co. v. Von 
 Horn, 18 111. 257; Evansville R. R. 
 Co. V. Cochran, 10 Ind. 560 ; Sinclair 
 u. Roush, 14 Ind. 450; Crouse v. Hol- 
 man, 19 Ind. 30; J^alzell v. Daven- 
 port, 12 Iowa, 437 ; Sanford v. Shep- 
 ard, 14 Kan. 228 ; Clark v. Rockland 
 ■\Vater Power Co., 52 Me. 68 ; Dwight 
 V. County Commr's, 11 Cush. (Mass.) 
 201; Russell v. Horn Pond Branch 
 R. R. Co., 4 Gray (Mass.) 607 ; West 
 Newbury v. Chase, 5 Id. 421; Flint v. 
 Flint, 6 Allen (Mass.) 34; Rand v. 
 Newton, Id. 38 ; Powler v. Middlesex, 
 Id. 92 ; Whitman v. Boston &c. R. R., 
 7 Id. 318 ; Wesson v. Washburn Iron 
 Co., 13 Id. 95 ; Whitney v. Boston, 98 
 Mass. 312; Swan d. Middlesex Co., 
 101 Id. 173; Hawkins v. Fall River, 
 119 Id. 94; Stone i-. Covell, 29 Mich. 
 579; Rocliester v. Chester, 3 N. H. 
 349 ; Peterboro' v. JafErey, 6 Id. 462 ; 
 Westlake v. St. Lawrence Ins. Co., 14 
 Barb. (N. Y.) 206 ; Rocliester &c. R. 
 E. Co. V. Budlong, How. (N. Y.) Pr. 
 467; 10 Id. 289; Clark v. Baird, 9 N. 
 Y. 183 ; Van Densen v. Young, 29 N. 
 Y. 9 ; Robertson v. Knapp, 35 N. Y. 
 91 ; Cleveland &c. R. R. Co. v. Ball, 5 
 Ohio St. 568 ; Brown v. Corey, 43 Pa. 
 St. 495; Pennsylvania &c. R. R. Co. 
 V. Bunnell, 81 Pa. St. 414; Hanover 
 Water Co. v. Ashland Iron Co., 84 Id. 
 279 ; Buffum v. New York &c. R. R. 
 Co., 4 R. I. 221 ; Means v. Means, 7 
 Rich. (S. C.) 533. 
 
 The admissibility of opinions as to 
 the value of services rendered and 
 
 materials furnished will be found dis- 
 cussed in Parker v. Parker, 33 Ala. 
 459; Hastings "• Uncle Sam, 10 Cal. 
 341; Eagle &c. Mf'g Co. v. Browne, 
 58 Ga. 240; Hough v. Cook, 69 111. 
 581 ; Chamness v. Chamness, 53 Ind. 
 301 ; Lewis v. Eagle Ins. Co., 10 Gray 
 (Mass.) 508 ; Kendall v. May, 10 Al- 
 len (Mass.) 59; Elfelt ,;. Smith, 1 
 Minn. 125 ; Harris „. Roof, 10 Barb. 
 (N. Y.) 489; Lewis v. Trickey, 20 Id. 
 387 ; Lamoure v. Caryl, 4 Den. (N. 
 Y.) 370 ; McCullem v. Seward, 62 N. 
 Y. 316; Mercer v. Vose, 67 Id. 56; 
 s. c, 40 Superior, 218 ; Forbes v. How- 
 ard, 4 R. I. 364 ; Gonzales College v. 
 McHugh, 21 'Tex. 256; Carroll i. 
 Welch, 26 Tex. 147. 
 
 And opinions of ordinary witnesses 
 in respect to the value of professional 
 services are fully treated of in Halt 
 V. Vidal, 6 Cal. 56 ; Covey v. Camp- 
 bell, 52 Ind. 157 ; Ottawa University 
 V. Parkinson, 14 Kan. 159 ; Smith v. 
 Kobbe, 59 Barb. (N. Y.) 289 ; Chess- 
 man V. Merkel, 3 Bosw. (N. Y.) 402. 
 
 1 Bissell V. West, 35 Ind. 54. 
 
 2 Morehouse v. Mathews, 2 N. Y. 
 514, where a witness was not allowed 
 to state the amount of damage wMch 
 cattle suffered by improper feeding, 
 but was permitted to state how mucli 
 less valuable the cattle were when 
 taken away, than tliey were when 
 taken to the defendant's. The ques- 
 tion ruled out was, "How much, in 
 your opinion, was the damage sus- 
 tained by the plaintLH! in consequence 
 of feeding the cattle the poor hay in- 
 stead of that agreed upon 1 " So, 
 also, the following were held improper : 
 " What damages, in your opinion, lias 
 the plaintiff sustained "! " (Norman 
 V. Wells, 17 Wend. (N. Y.) 136.) 
 
§ 291. j OPINIONS OP NON-PKOFESSIONAL WITNESSES. 483 
 
 States, particularly Massachusetts, witnesses are permitted to 
 express an opinion in answer to a direct inquiry, in all cases 
 where the value of property is an issue.^ And the evident 
 tendency of modern judicial opinion is to open the door to 
 opinions on the amount of damages, in all cases where the 
 value of property is in question.^ In other words, where the 
 two questions of value and amount of damage are identical, 
 witnesses may express opinions on the latter question as 
 well as the former.^ 
 
 But in actions for personal injuries, libel, slander, and nui- 
 sance cases, and many others, where the element of injury to 
 propertj'- is wanting, such opinions are clearly inadmissible 
 on the question of the measure of damages. In such cases 
 only an expert can form an opinion ; and the rule is the same 
 where property injured is of such a character that only experts 
 can form an opinion as to its value or deterioration.* 
 
 § 291. Opinions as to Sanity and Mental Capacity. — The 
 subscribing witnesses to a will or deed may testify as to the 
 mental condition of the testator, or grantor, at the time of 
 
 " From the description of the situa- 
 tion of the boat in question, as given 
 by the witnesses, what would the 
 damages be ? " (Paige v. Hazzard, 5 
 Hill (N. Y.) 603.) 
 
 ^ Shattuck ;;. Stoneham Branch E. 
 E. Co., 6 Allen (Mass.) 116, 117. See 
 also Mississippi &c. Bridge Co. v. 
 Eing, 5S Mo. 492. 
 
 2 See Mills on Em. Dom. § 165; 
 Sexton V. North Bridgewater, 116 
 Mass. 200 ; Carter v. Thurston, 58 N. 
 H. 104 ; Snow v. Boston & Maine E. 
 E. Co., 65 Me. 230. 
 
 8 Eochester &c. E. E. Co. u. Bud- 
 long, 10 How. (N. Y.) Pr. 289.- 
 
 * See 1 Whart. Ev. § 450 ; Central 
 E. E. Co. V. Kelly, 58 Ga. 107. 
 
 In the following cases, opinions of 
 non-expert witnesses on the question 
 of the amount of damage to property 
 were rejected ; Pierson v. Wallace, 7 
 Ark. 282; Gilbert v. Cherry, 57 Ga. 
 129; Evansville E. E. Co. v. Eitz- 
 patrick, 10 Ind. 120; Evansville E. 
 E. Co. V. Stringer, Id. 551 ; Whitmore 
 r. Bowman; 4 Greene (Iowa) 148; 
 Eider v. Ocean Ins. Co., 20 Pick. 
 (Mass.) 259; Eodgers v. Fletcher, 13 
 
 Abb. (N. Y.) Pr. 299; Harger v. Ed- 
 monds, 4 Barb. (N. Y.) 256; Giles v. 
 O'Toole, Id. 261 ; Dollttle v. Eddy, 7 
 Id. 74 ; Simons ;•. Monier, 29 Id. 419 ; 
 Armstrong v. Smith, 44 Id. 120 ; 
 Eichardson v. Northrup, 66 Id. 85 ; 
 Thompson v. Dickhart, Id. 604 ; Fish v. 
 Dodge, 4 Den. (N. Y.) 311; Duff r. 
 Lyon, 1 E. D. Smith (N. Y.) 536; 
 Newton u. Fordham, 7 Hun (N. Y.) 
 58; Schermerhorn v. Tyler, 11 Id. 
 549 ; Norman v. Wells, 17 Wend. (X. 
 Y.) 136; Atlantic &c. E. E. Co. o. 
 Campbell, 4 Ohio St. 583 ; Cleveland 
 &c. E. E. Co. V. Ball, 5 Id. 568. 
 
 In the following cases, such opin- 
 ions were admitted : Johnson v. State, 
 37 Ala. 457 ; Ottawa &c. Co. v. Gra- 
 ham, 35 111. 346 ; Webber v. Eastern 
 E. E. Co., 2 Mete. (Mass.) 147; Shat- 
 tuck V. Stoneham &c. R. E. Co., 
 Allen (Mass.) 115 ; Kershaw v. Wright, 
 115 Mass. 361; Spencer v. St. Paul 
 &c. E. E. Co., 22 Minn. 29: Harris v. 
 Panama E. E. Co., 36 N. Y. Superior 
 Ct. 373 ; Watry v. Hiltgen, 16 Wis. 
 516; Snyder v. West Union E. R. Co., 
 25 Wis. 60. 
 
484 OPINIONS. [chap. XXV. 
 
 the execution of the instrument, and their opinions are ad- 
 mitted by the courts as freely as those of medical men. They 
 are competent, whether they " happen to be the attending 
 physicians, nurses, children, or chance strangers " ; ^ and they 
 need not previously state the facts upon which they base 
 their opinions.'"' 
 
 Whether non-professional witnesses other than the sub- 
 scribing witnesses may testify to their opinions on this ques- 
 tion, is a point iipon which there is a marked difference of 
 opinion. Many decisions hold that other than subscribing 
 witnesses to a will may testify to the appearance of a testa- 
 tor, and to particular facts from which the state of his mind 
 may be inferred; but they will not be permitted to testify as 
 to their opinion or judgment merely of his sanity, or insanity, 
 without stating the facts from which they draw their con- 
 clusions.® 
 
 Other cases hold that they must testify to facts only, and 
 may not give their opinions along with the facts ; * and still 
 others allow witnesses who had actual knowledge of, and 
 opportunities to observe the testator, in his lifetime, to testify 
 to their opinions as to his sanity, although they are not 
 professional experts, nor subscribing witnesses to the will.^ 
 But such opinions must be based on personal knowledge and 
 
 1 Hardy v. Merrill, 56 N. H. 227, Louis Life Ins. Co., 45 Iowa, 93 ; Gar- 
 24.3. diner v. Gardiner, 34 N. Y. 155 ; Clapp 
 
 2 Logan V. McGinnis, 12 Pa. St, 
 27 ; Poole v. Richardson, 3 Mass. 330 
 Titlow V. Titlow, 54 Pa. St. 216 ; Gib- 
 son V. Gibson, 9 Yerg. (Tenn.) 329: 
 Williams v. Lee, 47 Md. 321 ; Call v. 
 Byram, 39 Ind. 499; Van Huss v. 
 Rainbolt, 2 Coldw. (Tenn.) 139. 
 
 8 Poole V. Richardson, 3 Mass. 330 
 
 V. FuUerton, Id. 190; Walker 
 Walker, 14 Ga. 242 ; Pelamourges c. 
 Clark, 9 Iowa, 1 ; Rambler ik Tryon, 
 7 Serg. & R. (Pa.) 90; Bricker v. 
 Lightner, 40 Pa. St. 199. See Clary 
 V. Clary, 2 Ired. (N. C.) L. 78. Nei- 
 ther professional nor unprofessional 
 witnesses can give an opinion as to 
 
 Buckminster v. Perry, 4 Mass. 593 ; ment^ capacity or condition, without 
 
 Hathorn v. King, 8 Mass. 371 ; Dorsey first Sowing the facts upon which 
 
 w. Warfield, 7 Md. 05; Kinne w. Kinne, the opinion is founded. White u. 
 
 9 Conn. 102; Hunt u. Hunt, 3 B. Bailey, 10 Mich. 155; Stackhouse v. 
 
 Mon. (Ky.) 575 ; Lowe v. Williamson, Horton, 2 McCart. (N. J.) 202. 
 1 Green (N. J.) Eq. 82 ; Sloan v. Max- « Boardman v. Woodman, 47 N. H. 
 
 well. Id. 563; Choice v. State, 31 Ga. 120; De Witt c. Barley, 9 N. Y. 371; 
 
 424; Dunham's Appeal, 27 Conn. 192; Clapp ^. FuUerton, 34 N. Y. 190; 
 
 Berry v. State, 10 Ga. 511; Stewart v. Elder v. Ogletree, 36 Ga. 64; Ware 
 
 Redditt, 3 Md. 67; Stewart v. Sped- v. Ware, 8 Me. 42. 
 den, 5 Md. 433; Dewitt v. Early, 17 ^ Hardy v. Merrill, 56 N. H. 227, 
 
 N. Y. 340; 13 Barb. 550; Culver v. reviewing many authorities. S. P., 
 
 Haslam, 7 Barb. (N. Y.) 314; Clark Eord v. State, 71 Ala. 385; People v. 
 
 V. State, 12 Ohio, 483 ; Butler v. St. Sandford, 43 Cal. 29. 
 
§ 291.] OPINIONS OF NON-PEOFESSIONAL WITNESSES. 485 
 
 observation;^ and "whether the means of information or 
 facts proved, or the conclusions drawn by the witness are of 
 the satisfactory character required to base a finding upon, or 
 not, is for the consideration of the jury, under proper in- 
 structions." ^ 
 
 In Massachusetts the rule seems to be that an opinion 
 cannot be given, but any facts noticed by the witness, such 
 as incoherence or change in intelligence, may be testified to, 
 even though the witness is not an expert and did not attest 
 the will.^ In Ohio the opinion of the witness must relate 
 to the time of his examination ; and upon the direct exaiui- 
 
 1 Hathaway v. Nat. Life Ins. Co., 
 48 Vt. 335 ; Doe v. Eeagan, 5 Blackf . 
 (Ind.) 217. See Dicken v. Johnson, 
 7 Ga. 484. 
 
 " Such opinions were excluded upon 
 the theory, that special knowledge 
 and skill were required to judge intel- 
 ligently of the mental condition of 
 another, and that if tlie witnesses gave 
 a detailed account of the acts and 
 conduct of the person wliose mental 
 capacity was in question, the jury 
 was as competent to form an opinion 
 thereon, as the witnesses themselves. 
 That the opinions of professional wit- 
 nesses should be received, as they 
 could judge with some degree of accu- 
 racy, from pathological symptoms ; 
 but as non-professional witnesses could 
 only form their opinions from the 
 actual demonstrations of the person, 
 those demonstrations should be stated 
 to tlie jury, and tliat body left to form 
 their own opinion as to the cause 
 and eliaracter of the appearances de- 
 scribed. The fact lias come, however, 
 to be generally recognized, that it is 
 impossible so to describe the appear- 
 ance and demonstrations of a person, 
 as to convey any accurate idea of 
 their exact character, and to leave 
 upon the mind of jurors the legiti- 
 mate impressions which such demon- 
 strations and appearances naturally 
 leave upon the mind of the actual 
 observer. The result has been that 
 many of the earlier cases have been 
 overruled, and the principle has come 
 to be generally recognized that non- 
 professional witnesses may give their 
 
 opinions as to sanity, as a result of 
 tlieir personal observation of the per- 
 son wliose mental condition is in ques- 
 tion, after first stating the facts whicli 
 they observed." Rogers on Exp. Test. 
 § 61, citing many cases. 
 
 In Alabama the court says : " No 
 precise rule can be laid down as to 
 the lengtla or character of acquaint- 
 ance which would render the opinion 
 of a person not a physician admissible 
 evidence on a question of insanity. 
 In case of general insanity, — a total 
 incapacity to distinguisli right from 
 wrong on any question, — tlie same 
 degree of observation is not required 
 to discover the existence of the dis- 
 ease as in cases of monomania or par- 
 tial derangement, and therefore the 
 same degree of intimacy is not neces- 
 sary to render the opinion of the wit- 
 ness admissible ; but in every case the 
 circumstances must be such as to have 
 afforded tlie witness the opportunity 
 of forming an accurate judgment as 
 to the existence or non-existence of 
 the disease, considered with reference 
 to the eliaracter or degree in which it 
 is alleged to exist." Powell v. State, 
 25 Ala. 21. As to who are deemed 
 qualified by intimacy with and obser- 
 vation of the deceased, to give an 
 opinion, see Stukey v. Billah, 41 Ala. 
 700 ; Townshend v. Townshend, 7 Gill 
 (Md.) 10; Weems v. Weems, 19 Md. 
 334; Choice v. State, 31 Ga. 424, 467. 
 
 2 McClackey v. State, 5 Tex. App. 
 331. 
 
 3 Barker v. Comins, 110 Mass. 477. 
 S. P., May V. Bradlee, 127 Id. 414. 
 
486 OPINIONS. [chap. XXV. 
 
 nation his opinion at an anterior period cannot be called for ; 
 nor can he be asked his opinion as to the capacity of the 
 testator to make a will.^ And in Vermont the fact that the 
 witness did not form his opinion at the time he saw and 
 observed the facts testified to by him, does not render his 
 opinion on that account inadmissible.^ 
 
 In New Jersey it is held that the mere fact of a man's 
 having affixed his signature to a will as a subscribing wit- 
 ness does not entitle his opinion, as to the competency of 
 the testator, to any more weight than that of any one else 
 who may be called upon to testify.^ 
 
 The New York rule is perhaps the best settled and most 
 satisfactory. In that State non-expert witnesses who have 
 testified to facts bearing upon the mental condition of the 
 testator, cannot state what they thought of his condition of 
 mind, or their impressions as to it;* but they may charac- 
 terize as rational or irrational the acts and declarations to 
 which they have testified, and state the impression produced 
 upon their minds by what they beheld or heard, their 
 examination being limited to their conclusions from the 
 specific facts they disclose, and so confined as to exclude any 
 opinion on the general question of soundness or unsoundness 
 of mind.^ 
 
 1 Eunyan v. Price, 15 Ohio St. 1. 603 ; People v. Lake, 12 Id. 358 ; 
 S. P., Parrell v. Brennan, 32 Mo. 328. Deshon v. Merchants' Bank, 8 Bosw. 
 But see Wogan v. Small, 11 Serg. & R. (N. Y.) 461. 
 
 (Pa.) 141. For further decisions adopting one 
 
 2 Hathaway v. Nat. Life Ins. Co., or the other of the views given in the 
 48 Vt. 335. text, see Johnson v. State, 17 Ala. 618 ; 
 
 2 Turner v. Cheesman, 2 McCart. State v. Brunetto, 13 La. Ann. 45 ; 
 
 (N. J.) 243 ; Garrison v. Garrison, Id. State v. Coleman, 27 Id. 691 ; Dickin- 
 
 266 ; Boylan v. Meeker, Id. 310. son v. Barber, 9 Mass. 225 ; Com. u. 
 
 4 Sisson V. Conger, 1 T. & C. (N. Y.) Wilson, 1 Gray (Mass.) 337 ; State v. 
 
 564, 569 ; Real v. People, 42 N. Y. 282. Pike, 49 N. H. 399 ; Sears v. Shaffer, 
 
 s Howell V. Taylor, 11 Hun (N. Y.) 1 Barb. (N. Y.) 408 ; McDougald v. 
 
 214 ; Hewlett «. Wood, 55 N. Y. 635 ; McLean, 1 Wins. (N. C.) 120 ; Wil- 
 
 O'Brien y. People, 36 Id. 276; Clapp kinson v. Pearson, 23 Pa. St. 117; 
 
 V. Fullerton, 34 Id. 190 ; Higbee v. Dove v. State, 3 Heisk. (Tcnu.) 348. 
 Guardian Mut. Life Ins. Co., 53 Id. 
 
CHAPTER XXVI. 
 
 BXPEET TESTIMONY. 
 
 § 292. What Questions call for Expert Testimony. 
 
 § 293. Qualifications of Experts. — Competency. 
 
 § 294. Examination of Experts. — Hypothetical Questions. 
 
 § 295. Physicians, Surgeons, and Chemists. 
 
 § 296. Persons skilled in the Law. 
 
 § 297. Surveyors and Civil Engineers. 
 
 § 298. Mechanics, Artisans, and Persons skilled in a Trade or Vocation. 
 
 § 299. Experts in Handwriting. 
 
 § 300. Effect and Value of Expert Testimony. 
 
 § 292. TWhat Questions call for Expert Testimony. — The 
 foundation of the rule admitting evidence of opinions — 
 including those of experts — in certain cases is necessity .i 
 The juvj are to be enlightened in every possible way, and as 
 they are not selected with a view to their qualifications to 
 try the particular issue before them, but simply as men pos- 
 sessing the ordinary qualifications of mankind, when ques- 
 tions arise to be determined by them, involving an acquaintance 
 with facts not coming within the ordinary range of human 
 experience, skilled witnesses are permitted to enlighten them.^ 
 The true rule is that when the subject to be investigated so 
 far partakes of the nature of a science or trade as to require 
 a previous course of study or habit in order to the attainment 
 of a knowledge of it, opinions of experts are admissible. 
 Otherwise, if the relation of facts, and their probable result 
 can be determined without especial skill or study. In such 
 cases the facts themselves must be given, and the jury left to 
 draw conclusions or inferences.* 
 
 ^ State V. Clark, 12 Ired. (N. C.) " It is not because a man has a repu- 
 
 L. 152, 153; City of Chicago y. Mc- tation for sagacity, and judgment, and 
 
 Given, 78 111. 347. power of reasoning, that his opinion is 
 
 ^ Moreland v. Mitchell Co., 40 Iowa, admissible ; if so, such men might be 
 
 394. called in all cases, to advise the jury, 
 
 ' Muldowney v. Illinois Cent. E. R. and it would change the mode of trial. 
 
 Co., 36 Iowa, 462; Rogers Exp. Test. But it is because a man's professional 
 
 § 5 and cases cited. pursuits, his peculiar skill and knowl- 
 
483 
 
 OPINIONS. 
 
 [chap. XXVI. 
 
 It has been said that there are three classes of cases in 
 which the opinions of experts are admissible in evidence : 
 (1) Upon questions of science, skill, or trade, or others of 
 like kind. (2) When the subject-matter of inquiry is such, 
 that inexperienced persons are unlikely to prove capable of 
 forming a correct judgment upon it, without such assistance. 
 (3) When the subject-matter of investigation so far partakes 
 of the nature of a science, as to require a course of previous 
 habit or study, in order to the attainment of a knowledge of 
 it.i 
 
 Such opinions are inadmissible where the matter under 
 investigation is of such a nature that it may be presumed to 
 come " within the common experience of all men of common 
 education, moving in ordinarj^ walks of life." ^ 
 
 edge in some department of science, 
 not common to men in general, enable 
 him to draw an Inference, where men 
 of common experience, after all the 
 facts proved, would be left in doubt." 
 Per Shaw, C. J., in New England Glass 
 Co. 0. Lovell, 7 Cush. (Mass.) 319. 
 
 1 Jones V. Tucker, 41 N. H. 546. 
 
 " It is often very difficult to deter- 
 mine in regard to what particular 
 matters and points witnesses may give 
 testimony by way of opinion. It is 
 doubtful whether all the cases can be 
 liarmonized, or brought within any 
 general rule or principle. The most 
 comprehensive and accurate rule upon 
 the subject, we believe to be as fol- 
 lows : That the opinion of witnesses 
 possessing peculiar skill is admissible 
 whenever the subject-matter of inquiry 
 is such, that inexperienced persons are 
 not likely to prove capable of forming 
 a correct judgment upon it, without 
 such assistance [followed in Kipner 
 u. Biebl, Alb. L. J. Sept. 3, 1881]; 
 in other words, when it so far partakes 
 of the nature of a science, as to re- 
 quire a course of previous habit or 
 study in order to the attainment of a 
 knowledge of it, and that the opinions 
 of witnesses caimot be received when 
 the Inquiry is into a subject-matter, 
 the nature of which is not such as to 
 require any particular liabits of study 
 in order to qualify a man to under- 
 
 stand it. If the relation of facts and 
 their probable results can be deter- 
 mined without especial skill or study, 
 the facts themselves must be given in 
 evidence, and the conclusions or in- 
 ferences must be drawn by the 
 jury." * 
 
 " The true test of the admissibility 
 of such testimony, is not whether the 
 subject-matter is common or uncom- 
 mon, or whether many persons or few 
 have some knowledge of the matter ; 
 but it is whether the witnesses offered 
 as experts have any peculiar knowl- 
 edge or experience, not common to the 
 world, which renders their opinions, 
 founded on such knowledge or expe- 
 rience, any aid to the court or to the 
 jury in determining the questions at 
 issue." Taylor v. Town of Monroe, 
 43 Conn. 36, 44. 
 
 2 New England Glass Co. v. Lovell, 
 7 Cush. (Mass.) 319. 
 
 " If tlie jury can be put in posses- 
 sion of all the facilities for forming a 
 correct opinion that the witness had, 
 they must come to their conclusions 
 unembarrassed by the opinions of 
 others." Dillard v. State, 58 Miss. 
 368, 388. 
 
 " It is only where the matter inquired 
 of lies within the range of the peculiar 
 skill and experience of the witness, 
 and is one of which the ordinary 
 knowledge and experience of mankind 
 
 * Muldowney v. Illinois Cent. E. E. Co., 36 Iowa, 462. 
 
§ 292.] 
 
 EXPERT TESTIMONY. 
 
 489 
 
 Considerable difficulty has arisen in the application of this 
 rule, plain and simple though it appear when abstractly- 
 considered. It has been said that " the principles on whicli 
 the authorities rest are more consistent than the attempts to 
 apply them." ^ The distinctions between facts lying within, 
 and those lying without the range of common experience and 
 ordinary intelligence, are not always satisfactorily drawn by 
 the authorities.^ 
 
 does not enable them to see what 
 inferences should be drawn from the 
 facts, that the witness may supply 
 opinions as their guide." Kennedy v. 
 People, 39 N. Y. 245. S. P., Hart v. 
 Hudson River Bridge Co., 84 N. Y. 56, 
 60, 61. 
 
 1 Evans v. People, 12 Mich. 27. 
 
 2 The following are a few of the 
 many questions which have been held 
 to be within the range of common 
 experience, and as to which, conse- 
 quently, expert testimony is not ad- 
 missible : Whether one building is so 
 near another as to increase the hazard 
 of Are insurance (Milwaukee &c. 
 R. R. Co. u. Kellogg, 94 U. S. 469) ; 
 whether the wound of which the de- 
 ceased died could have been inflicted 
 by a pistol-shot fired by the defendant 
 from a certain direction (People v. 
 Westlake, 62 Cal. 303) ; whether a 
 sidewalk made of rough plank, laid 
 on stringers, is properly constructed 
 or not (Alexander v. Town of Mt. 
 Sterling, 71 111. 366) ; whether plain- 
 tiff (a car-coupler) used due care or 
 acted imprudently (Hopkins a. Ind. 
 & St. L. R. R. Co., 78 111. 32. S. P., 
 Belair v. C. & N. W. R. Co., 43 Iowa, 
 667 ; Muldowney v. 111. Central R. R. 
 Co., 36 Id. 462) ; whether glass placed 
 in a sidewalk to afford light to the 
 area below, is unsafe, by reason of the 
 too great smoothness or slipperiness 
 of its surface (City of Chicago v. Mc- 
 Given, 78 111. 347) ; whether a custom 
 existed that the employment of an 
 architect to make plans and designs 
 for a building, carried with it an em- 
 ployment to superintend its construc- 
 tion (Wilson V. Bauman, 80 111. 49.3) ; 
 whether a hay wagon loaded in a cer- 
 tain way, was safe for riding over 
 
 ordinary roads (Bills v. City of Ot- 
 tumwa, 35 Iowa, 107) ; whether the 
 falling of the span of a bridge was 
 occasioned by a displacement of the 
 stringers, resulting from the action of 
 snow and ice (Hughes v. Muscatine 
 County, 44 Iowa, 672) ; whether, in a 
 given case, a shaded object would be 
 rendered visible by a certain artificial 
 light (Weave v. K. & D. M. R'y Co., 
 45 Iowa, 246) ; whether an unoccu- 
 pied building is a more hazardous 
 risk than one occupied (Cannel v. 
 Phoenix Ins. Co., 59 Me. 582) ; whether 
 a mill-site exists in a particular local- 
 ity (Clagett V. Easterday, 42 Md. 
 617) ; as to the effect of water in dis- 
 integrating the mortar of a wall (Un- 
 derwood V. Waldron, 33 Mich. 232) ; 
 what hard-pan is, and whether any 
 was found in excavating (Currier v. 
 Boston &c. R. R. Co., 34 N. H. 498) ; 
 whether a person was intoxicated at a 
 given time (State v. Pike, 49 N. H. 
 399) ; whether a railroad train stopped 
 an ample time for all the passengers 
 to get off (Keller v. N. Y. Central R. 
 R. Co., 2 Abb. (N. Y.) App. Dec. 
 480) ; whether it be dangerous to use 
 a smoke-stack without a spark-catcher 
 (Teall u. Barton, 40 Barb. (N. Y.) 
 137) ; how the running off of cars on 
 the inside of a curve, instead of the 
 outside, can be accounted for (Mur- 
 phy u. N. Y. Central R. R. Co., 66 
 Barb. (N. Y.) 125); whether a cattle 
 guard is properly constructed (Swart- 
 out V. N. Y. Central R. R. Co., 7 Hun 
 (N. Y.) 571. 
 
 The following have been held to 
 be proper questions for experts : 
 Whether a certain usage existed on a 
 question of navigation not governed 
 by the sailing rules and regulations 
 
490 
 
 OPINIONS. 
 
 [chap. XXVI. 
 
 § 293. Qualifications of Experts; Competency. — The term 
 "expert" has been variously defined,^ and perhaps the most 
 satisfactory definition is that given in Redfield's edition of 
 Greenleaf's Evidence : " The term ' expert ' seems to imply 
 both superior knowledge and practical experience in the art 
 or profession ; but generally, nothing more is required to 
 entitle one to give testimony as an expert, than that he has 
 been educated in the particular art or profession." ^ 
 
 (The City of Washington, 92 U. S. 31); 
 whether it is safe for a tug-boat, in a 
 place named, to attempt to tow three 
 boats abreast (Transportation Line 
 0. Hope, 95 U. S. 297) ; what caused 
 the breaking of machinery, by which 
 breaking plaintiff received injury for 
 which he sued (Camp Point Mf'g 
 Co. 0. Ballow, 71 111. 417) ; whether 
 two pieces of wood were parts of the 
 same stick of natural growth (Com- 
 monwealth V. Choate, 105 Mass. 451) ; 
 whether, and to what extent, cribbing 
 affects the value of a fast trotting 
 horse (Miller v. Smith, 112 Mass. 
 470) ; whether the place where a raft 
 is moored is safe (Hayward v. Knapp, 
 23 Minn. 481. S. P., Moore i). West- 
 ervelt, 9 Bosw. (N. Y.) 558) ; whether 
 or not the instrument in evidence, 
 identified as that with which the 
 homicide was committed, would, in 
 the hands of a man of ordinary 
 strength, and used as a bludgeon, 
 produce the wounds described and be 
 likely to produce death (Waite v. 
 State, 13 Tex. App. 169). 
 
 1 " All persons, I think, who prac- 
 tise a business or profession which 
 requires them to possess a certain ' 
 knowledge of the matter in hand, are 
 experts so far as expertness is re- 
 quired." Per Maule, J., in Vander 
 Donckt V. Thellusson, 8 Man. G. & S. 
 812; followed in Bird v. Common- 
 wealth, 21 Gratt. (Va.) 800. Other 
 definitions found in the books are : 
 " A skilful or experienced person ; 
 a person having skill, experience, or 
 peculiar knowledge on certain sub- 
 jects, or in certain professions ; a sci- 
 entific witness." Heald v. Thing, 45 
 Me. 394. " A person of large experi- 
 ence in any particular department of 
 
 art, business, or science.'' Dickinson 
 V. Fitchburg, 13 Gray (Mass.) 555. 
 " One who by practice or observation 
 has become experienced therein." 
 Eoohester v. Chester, 3 N. H. 365. 
 " An expert must have made the sub- 
 ject upon which he gives his opinion, 
 a matter of particular study, practice, 
 or observation, and he must have 
 particular special knowledge, on the 
 subject." Jones u. Tucker, 41 N. H. 
 546. "One instructed by experience; 
 and to become one requires a course 
 of previous habit and practice, or of 
 study, so as to be familiar with the 
 subject." Nelson v. Sun Mutual Ins. 
 Co., 71 N. Y. 460. "Knowledge of 
 any kind, gained for and in the course 
 of one's business as pertaining there- 
 to, is precisely that which entitles one 
 to be considered an expert, so as to 
 render his opinion, founded on such 
 knowledge, admissible in evidence." 
 Bufium t. Harris, 5 R. I. 250. "A 
 person that possesses peculiar skill 
 and knowledge upon the subject-mat- 
 ter that he is required to give an 
 opinion upon." State v. Phair, 48 
 Vt. 377. 
 
 2 1 Greenl. Ev. § 440. The rule as 
 to qualification is also well expressed 
 in a New York case, where it is said 
 that " the opinions of experts are 
 only admissible, when it appears from 
 the nature of their avocations, or 
 from their testimony concerning their 
 experience, that the matter inquired 
 about involves some degree of science 
 or skill which they have made use of, 
 so that from experience, they are fitted 
 to answer the question propounded 
 with more accuracy than otlters who 
 may not have been called upon to 
 employ science, or exercise skill on 
 
§ 293.] EXPERT TESTIMONY. 491 
 
 Before asking an expert witness's opinion, his competency 
 to give it must be shown ; ^ and in determining this question 
 much is left to the discretion of the court trying the case,^ 
 whose decision of it will not be disturbed except it be mani- 
 festly wrong.^ As to this, the Supreme Court of New Hamp- 
 shire say that, "while it is settled, as matter of law, what 
 qualifications are requisite, the possession of those qualifica- 
 tions is equally well settled to be a question of fact, purely 
 within the discretion of the judge before whom the witness 
 is offered. His decision concerning the matter is not subject 
 to revision. It would not be wise to adopt a different rule. 
 The ability or disability of a witness to testify, under the 
 legal requirements for the admission of opinion, is a matter 
 most conveniently and satisfactorily determined at the trial, 
 upon personal examination of the witness. It can, indeed, 
 be determined in no other way." * 
 
 The presence or absence of the necessary qualifications is 
 determined by a preliminary examination of the witness as 
 to his acquaintance with the subject-matter in reference to 
 which his opinion is desired, and what he has done to qualify 
 himself as an expert in that particular department of inquiry.^ 
 He need not possess the highest degree of skill,^ but such 
 skill or knowledge as he is found to possess should have been 
 acquired in some profession or trade.'^ There is no test "by 
 which we can determine with mathematical precision, just 
 how much experience a witness must have had, how expert, 
 in short, he must be, to render him competent to testify as 
 an expert." ^ 
 
 the subject." Clark v. Bruce, 19 Hun ^ Forgery v. First Nat. Bank, 66 
 
 (N. Y.) 276. Ind. 125. See also McEwen v. Big- 
 
 1 Jones V. Tucker, 41 N. H. 546. elow, 40 Mich. 215. 
 
 2 Hills V. Home Ins. Co., 129 Mass. ■' A painter, in virtue of the spe- 
 345; Howard u. Providence, 6 R. I. cial knowledge and skill acquired in 
 516. his employment of painting, could 
 
 ' Sorg V. First German Cong., 63 learn nothing of the proper mode of 
 
 Pa. St. 156; Delaware &c. Co. v. framing together materials for the 
 
 Starrs, 69 Pa. St. 36. construction of a building. What- 
 
 * Jones V. Tucker, 41 N. H. 547. ever knowledge he acquires respecting 
 
 S. P., Wright V. "Williams, 47 Vt. 233. carpenter and joiner work, must be 
 
 ^ Boardman v. Woodman, 47 N. H. gained from mere observation and 
 
 120. attention. But any observant man, 
 
 ^ Yates V. Yates, 76 N. C. 142 ; whose attention has been specially 
 
 State V. Hincle, 6 Iowa, 159. directed to buildings in process of 
 
 ' Lincoln u. Inhabitants of Barre, erection and erected, could have equal 
 
 5 Gush. (Mass.) 591. means of knowledge, and could be 
 
492 OPINIONS. [chap. XXVI. 
 
 In many cases a witness may be qualified to testify as an 
 expert by reason of a previous course of reading and study 
 upon a particular subject of inquiry, without having had any 
 practical experience or observation of it ; but not if his read- 
 ing or study was merely for the purpose of qualifying him- 
 self as a witness in tbe particular case.^ 
 
 Again, his competency often depends upon whether he has 
 heard the evidence given on the trial; for his opinion, if he 
 gives one, must be founded upon .facts proved by the other 
 witnesses in the case.^ But it does not follow that he must 
 have heard all the evidence given on the trial,^ if he heard 
 that part of it which is material to the question upon which 
 his opinion is required ; * and the mere fact that he has Iieard 
 the testimony of the other witness will not qualify, if he 
 possesses no other knowledge of the facts involved than that 
 acquired at the trial.^ 
 
 § 294. Examination of Experts ; Hypothetical Questions. — 
 (1) ^Examination generally considered. There is no estab- 
 lished form for questions to experts, and any question may 
 be proper which will elicit their opinions as to the matters 
 of science or skill which are in controversy, and at the same 
 time exclude their opinion as to the effect of the evidence in 
 establishing controverted facts.^ It is not the expert's prov- 
 ince to draw inferences from the evidence of other witnesses, 
 unless the facts testified to are clear and uncontroverted, or 
 
 equally qualified to give an opinion. ^ As to this branch of the subject. 
 
 But the opinion of a witness is not to see Collier v. Simpson, 5 Car. & P. 
 
 be received merely because he has 73 ; Central E. R. Co. v. Mitchell, G3 
 
 had some experience, or greater op- Ga. 173; Dole v. Johnson, 50 N. H. 
 
 portunity of observation than others, 452, 455 ; State o. Wood, 53 N. H. 
 
 unless the experience relates to mat- 484 ; Melvin v. Easley, 1 Jones (N. C.) 
 
 ters of skill and science. It is true L. 388. 
 
 the witness in question could tell ^ Walker v. Fields, 28 Ga. 237 ; 
 
 whether a joint was a close or an open Emerson v. Lowell Gas Light Co., 
 
 one. And any observant person, with- 6 Allen (Mass.) 146 ; Heald v. Thing, 
 
 out special instruction or skill, could 45 Me. 392. 
 
 do as much. But it is apparent that, " Miller «. Smith, 112 Mass. 475. 
 
 to admit as an expert every person * Carpenter v. Blake, 2 Lans. (N". 
 
 who had availed himself of an oppor- Y.) 206. See also Thayer c Davis, 
 
 tunity to observe a structure, and 38 Vt. 163; Webb v. State, 9 Tex. 
 
 who had acquired a knowledge as to App. 490. 
 
 the closeness of the joints, would ^ Ayres v. Water Comm'rs, 22 Hun 
 
 overturn entirely the rule respecting (N. Y.) 297. 
 
 expert testimony." Kilbourne v. Jen- " Hunt v. Lowell Gas Light Co., 
 
 nings, 38 Iowa, 533. 8 Allen (Mass.) 169. 
 
§ 294.J BXPEKT TESTIMONY. 493 
 
 to take into consideration such facts as he can recollect that 
 have been testified to and thus form an opinion, but he should 
 have full information of the ascertained or supposed state of 
 facts upon which his opinion is based.^ The witness should 
 either give an opinion founded on his own knowledge of the 
 facts, or must give one founded on a hypothetical question.^ 
 
 It is improper to ask a question founded on all the testi- 
 mony the expert witness has heard in the case, without 
 assuming any facts as established thereby. Such a question 
 leaves it to the witness to say what facts are established by 
 the evidence which he. has heard, which is the province 
 of the jury. Questions of this character, to be admissible, 
 should always be hypothetical, based either upon the hypoth- 
 esis of the truth of all the evidence given, or on a hypoth- 
 esis, specially framed, of certain facts assumed to be proved 
 for the purpose of the inquiry.^ 
 
 The whole matter is well summed up by the Supreme 
 Court of Massachusetts, as follows : " The object of all ques- 
 tions to experts should be to obtain their opinion as to the 
 matter of skill or science which is in controversy, and at the 
 same time to exclude their opinions as to the effect of 
 the evidence in establishing controverted facts. Questions 
 adapted to this end may be in a great variety of forms. If 
 they require the witness to draw a conclusion of fact, they 
 should be excluded." * 
 
 1 Guiterman v. Liverpool &c. elusion so drawn, express his opinion, 
 Steamship Co., 83 N. Y. 368 ; Jame- or to decide as to the weight of evi- 
 son V. Drinkald, 12 Moo. 148. dence or the credibility of witnesses ; 
 
 2 Preeman v. Lawrence, 43 N. Y. and his answers must be such, as not 
 Superior Ct. 288. to involve any such conclusions so 
 
 ^ Carpenter u. Blake, 2 Lans. (N. drawn, or any opinion of the expert, 
 
 Y.) 206. as to the weight of the evidence, or 
 
 " A question should not be so framed the credibility of the witnesses." Mc- 
 
 as to permit the witness to roam Mechen v. McMechen, 17 W. Va. 694. 
 
 through the evidence for himself, and See also United States v. McGlue, 1 
 
 gather the facts as he may consider Curt. (U. S.) 1 ; The Clement, 2 Id. 
 
 them to be proved, and then state his 363 ; Walker v. Fields, 28 Ga. 237 ; 
 
 conclusions concerning them." Doltz Home v. Williams, 12 Ind. 324 ; Craw- 
 
 ... Morris, 10 Hun (N. Y.) 202. ford v. Wolf, 29 Iowa, 567 ; Butler v. 
 
 In another case, in speaking of the St. Louis Life Ins. Co., 45 Iowa, 93 ; 
 
 proper manner of examining experts. Spear v. Richardson, 37 N. H. 23 ; 
 
 it is said: "The questions to him Wright u. Hardy, 22 Wis. 348 ; Hoard 
 
 must be so shaped as to give him no v. Peck, 56 Barb. (N. Y.) 202. 
 occasion to mentally draw his own * Hunt t . Lowell Gas Light Co., 
 
 conclusions from the whole evidence, 8 Gray (Mass.) 169. 
 or a part thereof, and from the con- 
 
494 OPINIONS. [chap. XXVI. 
 
 (2) Hypothetieal questions. " In order to obtain the opin- 
 ion of a witness on matters not depending upon general 
 knowledge, but on facts not testified of by himself, one of 
 two modes is pursued: either the witness is present and 
 hears all the testimony, or the testimony is summed up in 
 the question put to him ; and in either case the question is 
 put to him hypothetically, whether, if certain facts testified 
 of are true he can form an opinion, and what that opinion 
 is."^ He must not be allowed to draw inferences or conclu- 
 sions of fact from the evidence.^ 
 
 The hypothetical questions may either be based upon the 
 hypothesis of the truth of all the evidence, or on a hypoth- 
 esis framed on assumed facts for the especial purpose of the 
 inquirj^,^ and an error in the assumption does not make the 
 hypothetical question objectionable, if it is within the pos- 
 sible or probable range of the evidence.* But the facts of 
 the actual case should be fairly represented,^ the question 
 must be to some fair extent based on them.^ The answers 
 of the witness must tend to establish every supposed fact in 
 the question ; ^ and the failure of such assumed facts involves 
 the failure of the answers based upon such hypothetical ques- 
 tions.^ Counsel will not be allowed to put into such ques- 
 tions " anything not proved or offered to be proved." ^ 
 
 1 Dickenson v. Fitchburg, 13 Gray thing for tlae time being. Each side, 
 (Mass.) 650. S. P., Hoard v. Peck, in an issue of fact, lias its theory of 
 56 Barb. (N. Y.) 202. what is the true state of the facts, and 
 
 2 Woodbury v. Obear, 7 Gray assumes that it can prove it to be so 
 (Mass.) 407, where the following to the satisfaction of the jury, and so 
 question was disallowed : " Suppose assuming, shapes hypothetical ques- 
 all the facts stated by the witnesses to tions to experts accordingly. And 
 be true, was the testator laboring such is the correct practice." 
 
 under an insane delusioii, or was he of ^ Stuart v. State, 57 Tenn. 178. 
 an unsound mind ■? " 6 State v. Anderson, 10 Oreg. 448. 
 
 8 Gotlieb V. Hartman, 3 Col. 53. ' Hathaway v. Nat. Life Ins. Co., 
 
 * Harnett v. Garvey, 66 N. Y. 641; 48 Vt. 335; Bomgardner v. Andrews, 
 
 Nave V. Tucker, 70 Ind. 15 ; Cowley 55 Iowa, 638. 
 
 V. People, 88 N. Y. 464, where Folger, 8 t ovelady v. State, 14 Tex. App. 
 
 C. J., says : " The claim is, that a 645. See also Williams v. Brown, 28 
 
 hypothetical question may not be put Ohio St. 551, 552 ; Com. v. MuUins, 2 
 
 to an expert, unless it states the facts Allen (Mass.) 290 ; Boardman v. 
 
 as they exist. It is manifest, if this Woodman, 47 N. H. 135. 
 is the rule, that in a trial where there ' Fraser v. Jennison, 42 Mich. 227. 
 is a dispute as to the facts, which can How these rules apply where a part 
 
 be settled only by the jury, there only of a hypothetical question, sus- 
 
 would be no room for a hypothetical ceptible of division, is sustained by 
 
 question. The very meaning of the the evidence, see Eggers v. Eggers, 57 
 
 word is that it supposes, assumes some- Ind. 461. 
 
§ 294.] 
 
 EXPERT TESTIMONY. 
 
 495 
 
 Where there is no conflict in the evidence on the material 
 points of the case, the questions to experts need not be put 
 hypothetically,! nor need they be when the expert is person- 
 ally acquainted with the material facts.^ 
 
 The party calling the expert having put his hypothetical 
 question based on his theory of the facts proven, the oppo- 
 site party may put one based on his view of the evidence.^ 
 
 As to the proper form of hypotheti- 
 cal questions, tlie Supreme Court of 
 Vermont say : "A study of the various 
 cases will show that the form of the 
 question is modified and shaped by 
 the courts ; whether it states facts, or 
 puts facts hypothetically, or refers to 
 the testimony of witnesses as being 
 true, so as to give the witness no 
 occasion or opportunity to decide 
 upon the evidence, or mingle his own 
 opinion of the facts, as shown by the 
 evidence, with the facts upon which 
 he is to express a professional opinion. 
 This is the important point, and to 
 secure this, various forms of inquiry 
 have been adopted. Hypothetical 
 questions may be so put as to require 
 the witness to decide upon the evi- 
 dence, to determine which side pre- 
 ponderates, and to find conclusions 
 from the evidence, in order to recon- 
 cile conflicting facts. Such questions, 
 though hypothetical, are as clearly 
 improper as if they directly sought the 
 opinion of the witness on the merits of 
 the case. Hence, in framing such 
 questions, care should be taken not to 
 involve so much, or so many facts in 
 tliem, that the witness will be obliged 
 in his own mind to settle other dis- 
 puted facts, in order to give his answer. 
 ... In some cases, all the facts bearing 
 on the issue might be summed up in a 
 single question. But wlien facts on 
 one side conflict with facts on the 
 other, they ought not to be incorpo- 
 rated into one question, but the atten- 
 tion of the witness should be called to 
 their opposing tendencies, and if his 
 
 skill or knowledge can furnish the 
 explanation which harmonizes them, 
 he is at liberty to state it. Then the 
 jury can know all the facts and 
 grounds on wliich the opinion is 
 based." * 
 
 ^ Cincinnati &c. Mut. Ins. Co. v. 
 May, 20 Ohio, 211 ; Tefit v. Wilcox, 
 6 Kan. 46 ; Pidcock v. Potter, 68 Pa. 
 St. 342 ; Guiterman v. I^iverpool &c. 
 S. S. Co., 83 N. y. 358; State v. 
 Klinger, 46 Mo. 224. 
 
 2 Bellefontaine &c. R. R. Co. v. 
 Bailey, 11 Ohio St. .333; Transporta- 
 tion Line v. Hope, 95 U. S. 297 ; Brown 
 V. Huffard, 69 Mo. 306; Bellinger v. 
 N. Y. Cent. R. R. Co., 23 N. Y. 42. 
 
 Thus, where " a physician visits a 
 person and from actual examination 
 or observation becomes acquainted 
 with his mental condition, he may 
 give an opinion respecting such mental 
 condition at that time ; that is, he 
 may, under such circumstances, state 
 to the jury his opinion as to the sanity 
 or insanity of the person at the time 
 when he thus observed or examined 
 him." Per Dillon, C. J., in State v. 
 Felter, 25 Iowa, 74, 75. See also 
 McNaghten's Case, 10 CI. & F. 211 ; 
 State «. Glass, 5 Oreg. 73; Pullman 
 V. Corning, 9 N. Y. 93 ; State v. White, 
 76 Mo. 96. 
 
 ^ Davis r. State, 35 Ind. 496, where 
 the court say ; " We think that wlien 
 such a witness has expressed an opin- 
 ion based on facts assumed by the 
 party introducing him to have been 
 proved, or upon a hypothetical case 
 put by such party, the other party 
 
 * Fairchild v. Bascomb, 35 Vt. 415. See also State v. Lautenschlager, 22 
 Minn. 521 ; Getchell v. Hill, 21 Id. 464; Hagadorn i^. Connecticut Mut. Life 
 Ins. Co., 22 Hun (N. Y.) 251 ; Haggerty v. Brooklyn &c. R. R. Co., 61 N. Y. 
 624; Webb v. State, 9 Tex. App. 490; Oilman i: Town of Strafford, 50 Vt. 
 726; Wright v. Hardy, 22 Wis. 848. 
 
49S OPINIONS. [chap, xxvl 
 
 Questions of law should not be put,i nor should an opinion 
 be asked from an expert testifying from personal knowledge, 
 upon facts as to which he has not testified, so that it can be 
 seen upon what facts he bases his opinion ; ^ or, as a general 
 rule, upon facts heard by him out of court.^ 
 
 § 295. Physiftians, Surgeons, and Chemists. — (1) Medical 
 men. Any practising physician or surgeon is competent to 
 testify as an expert on a matter of medicine or surgery.* 
 Such a witness is "in law an expert as to all matters em- 
 braced within the range of his profession." ^ Thus, the 
 opinions of medical men are evidence, not only as to the 
 state of a patient whom they have seen,^ or as to the cause, of 
 the death of a person whose body they have examined,'' or as 
 to the nature of the instrument causing wounds which they 
 have inspected;^ but also in cases where thej- have not 
 themselves seen the patient, but have only heard the symp- 
 toms and particulars of his state detailed by other witnesses 
 at the trial ; their opinion on the nature of such symptoms 
 is always admitted. Thus, in prosecutions for murder, they 
 are allowed to state their opinion, whether the wounds or 
 injuries, described by other witnesses, were likely to be the 
 cause of death.^ So, upon a question of sanity,^" they may 
 form their judgment from the representations which wit- 
 nesses at the trial have given of the conduct, manner, and 
 general appearance exhibited by the patient ; or they may 
 give their opinion whether certain circumstances were likely 
 to produce a parox3'sm of the disorder. But they cannot be 
 asked to state their opinion upon the very point which the 
 jury have to decide ; namely, whether the act for which the 
 prisoner is being tried was an act of insanity. ^^ 
 
 may cross-examine liim by taking liis Livingston's Case, supra ; Cooper v. 
 
 opinion based on any other set of facts State, 23 Tex. 336. 
 
 assumed by him to have been proved ' Pitts v. State, 43 Miss. 472 ; State 
 
 by the evidence, or upon a hypotheti- v. Bowman, 78 N. C. 509; Slielton v. 
 
 cal case put to him." State, 34 Tex. 666 ; State v. Smith, 32 
 
 1 Farrell v. Brennan, 32 Mo. 328. Me. 370; State u. Pike, 65 Me. Ill; 
 
 2 Eeid u. Piedmont &c. Life Ins. McNair v. National Life Ins. Co., 13 
 Co., 58 Mo. 425 ; Haggerty v. Brooklyn Hun (N. Y.) 146 ; Polk u. State, 36 
 &c. R. R. Co., 61 N, Y. 624. Ark. 117, 124. 
 
 3 Polk V. State, 36 Ark. 117. 8 Rogers Exp. Test. § 54, and cases 
 * Livingston's Case, 14 Gratt. (Va.) cited. 
 
 592; Bird's Case, 21 Id. 800; De Phue » Ibid. § 51, and cases cited. 
 
 (■. State, 44 Ala. 39. " Ibid. §§ 56-62, and cases cited. 
 
 s State 1'. Clark, 15 So. Car. 408. " McNachten's Case, 10 CI. & F, 
 
 6 Bush V. Jackson, 24 Ala. 273 ; 200, 211. 
 
§ 295.] 
 
 EXPERT TESTIMONY. 
 
 497 
 
 But their opinions must be confined to matters of science 
 or skill ; therefore a physician cannot be asked whether, in 
 his opinion, another physician, in refusing to consult with 
 a third physician, had honorably and faithfully discharged 
 his duty to the medical profession.^ 
 
 The physician should have been engaged in active practice 
 to be competent to testify as an expert. Mere study and 
 education is not deemed sufficient to qualify him.^ But he 
 need not have made the particular ailment in question a 
 specialty,^ while if he devoted himself exclusively to some 
 branch of the profession entirely apart from the matter as to 
 which he is called to testify, he is incompetent.* 
 
 If a physician visits a patient and examines into his men- 
 tal condition, he may give his opinion as to his sanity or 
 insanity ; ^ or he can do so without having seen the patient, 
 in response to a hypothetical question.^ 
 
 1 Bamadge v. Ryan, 9 Bing. .333 ; 
 People V. Medical Society, 32 N. Y. 
 187 ; Mosely v. Wilkinson, 14 Ala. 
 812. 
 
 2 Fairchildu.Bascomb,35 Vt. 410; 
 Polk V. State, 36 Ark. 117. But see 
 FuUis V. Kidd, 12 Ala. 648; Eoberts v. 
 Johnson, 58 N. Y. 613. 
 
 ^ Hathaway v. National Life Ins. 
 Co., 48 Vt. 335,' 351 ; State v. Eeddick, 
 7 Kan. 143. 
 
 * Fairchild B.Bascomb,35 Vt. 410; 
 Com. !■. Rice, 14 Gray (Mass.) 335. 
 See also Rogers Exp. Test. § 44, and 
 cases cited. 
 
 ^ " There is no more reason why he 
 may not do this, than why he might 
 not testify that he saw a certain per- 
 son at a certain time, and that he was 
 then laboring under an epileptic fit, or 
 under an attack of typhus fever, or 
 had been stricken down and rendered 
 unconscious by an apoplectic stroke." 
 State V. Felter, 25 Iowa, 75. 
 
 6 Potts V. House, 6 Ga. 324 ; State 
 V. Windsor, 5 Harr. (Del.) 512 ; Guet- 
 ing V. State, 66 Ind. 94; Hoge u. 
 Fisher, 1 Pet. C, C. (U. S.) 163, 164. 
 
 For further decisions as to the com- 
 petency of physicians as expert wit- 
 nesses, and the admissibility of their 
 opinions, in particular instances, see 
 
 the cases grouped below according to 
 the subj A;t-matter under investigation. 
 
 Abortion cases. R. v. Still, 30 U. C. 
 C. P. 30 ; State v. Smith, 32 Me. 370 ; 
 Com. 0. Brown, 14 Gray (Mass.) 419 ; 
 State V. Wood, 53 N. H. 484. 
 
 Cases of assaulting and wounding. 
 Batten v. State, 80 Ind. 394 ; State v. 
 Murphy, 33 Iowa, 270 ; Davis v. State, 
 38 Md. 15, 43 ; People v. Rogers, 13 
 Abb. (N. Y.) Pr. n. s. 370 ; Fort v. 
 Brown, 46 Barb. (N. Y.) 366 ; Anthony 
 V. Smith, 4 Bosw. (N. Y.) 503; Rumsey 
 V. People, 19 N. Y. 41 ; Kennedy v. 
 People, 39 N. Y. 245 ; Lindsay v. Peo- 
 ple, 63 N. Y. 143 ; Wilson v. People, 
 4 Park. (N. Y.) Cr. 619 ; Gardiner v. 
 People, 6 Id. 155, 202 ; People v. Ker- 
 rains, 1 Thomp. & C. (N. Y.) 333 ; 
 Waite V. State, 13 Tex. App. 169; 
 Banks v. State, Id. 182; Powell v. 
 State, Id. 244. 
 
 Impotency cases. Devenbagh v. 
 Devenbagh, 5 Paige (N. Y.) 554 ; 
 Newell V. Newell, 9 Id. 26 ; Brown u. 
 Brown, 1 Hagg. 523; Briggs v. Mor- 
 gan, 3 Phillim. 325. 
 
 Malpractice cases. Hoener v. Koch, 
 84 111. 408; Twombly v. Leach, 11 
 Cush. (Mass.) 405; Barber v. Mer- 
 riam, 11 Allen (Mass.) 322 ; Leighton 
 V. Sargent, 31 N. H. 120; Eoberts v. 
 
498 
 
 OPINIONS. 
 
 [chap. XXVI. 
 
 (2) Chemists. The opinious of chemists are resorted to, 
 for the most part, in cases involving the detection of poisons 
 in human remains, and in the examination of blood-stains, 
 with a view to ascertain whether caused by the eifusion of 
 human blood or that of the lower animals. For these pur- 
 poses both the microscope and the chemical analysis are 
 resorted to. The general rules governing competency to 
 give opinions being the same as those which apply in the 
 cases of physicians and surgeons, a bare citation of some of 
 the leading authorities upon the subject is all that need be 
 given.i 
 
 § 298. Persons skilled in the Law — (1) Lawyers as experts, 
 generally. It is an elementary rule that courts will not 
 receive the opinions of experts upon matters of which they 
 take judicial notice ; such as the law of nations, the law mer- 
 chant, the Constitution of the United States, and of the state 
 of the forum, the domestic law of the latter, and the federal 
 statutes. As to these matters, and many others of which 
 
 Johnson, 58 N. Y. 613; Doyle v. N. Y. 
 Kye and Ear Infirmary, 80 N. Y. 631 ; 
 Heath r. Glisan, 3 Greg. 67 ; Boydston 
 V. Giltner, Id. 118; Williams v. Pop- 
 pleton. Id. 139; Mertz v. Detweiler, 8 
 Watts & S. (Pa.) 376; Wright v. 
 Hardy, 22 Wis. 348. 
 
 Question of pregnancy. State r. Smith, 
 32 Me. 369 ; Young v. Makepeace, 103 
 Mass. 50; State v. Knapp, 45 N. H. 
 148; State v. Wood, 53 N. H. 484; 
 Mason v. Fuller, 45 Vt. 29. 
 
 liape cases. State v. Knapp, supra; 
 Cook V. State, 4 Zab. (N. J.) 843; 
 Woodin !). People, 1 Park. (N. Y.) Cr. 
 464; State o. Smith, Phil. (N. C.) L. 
 302. 
 
 As to diseases in animals. Benson 
 V. Griffin, 30 Ga. 106 ; House v. Fort, 4 
 Blackf . (Ind.) 293 ; Moulton v. Scruton, 
 39 Me. 288; Stonam v. Waldo, 17 Mo. 
 489 ; Spear v. Richardson, 34 N. H. 
 428 ; Pierson v. Hoag, 47 Barh. (N. Y.) 
 243; Slater l: Wilcox, 57 Id. 604; Har- 
 ris V. Panama R. R. Co., 3 Bosw. (N. 
 Y.) 7 ; Horton v. Green, 64 N. C. 64 ; 
 State V. Sheets, 89 N. C. 543. 
 
 As to mental condition, insanitij, etc. 
 Walker v. Walker, 34 Ala. 469; Davis 
 r. State, 35 Ind. 496; State v. Reddiek, 
 
 7 Kan. 143; Heald v. Thing, 45 Me. 
 392; Com. v. Rich, 14 Gray (Mass.) 
 335; Russell v. State, 53 Miss. 368 
 Fingley v. Cowgill, 48 Mo. 291 ; Reed 
 V. People, 1 Park. (N. Y.) Cr. 481 
 Lake v. People, Id. 495 ; Clark v. State, 
 12 Ohio, 483 ; Pigg v. State, 43 Tex' 
 108. 
 
 As to intoxication and intemperate 
 habits. Rawls v. Anier. Life Ins. Co., 
 36 Barb. (N. Y.) 357; State v. Smith, 
 49 Conn. 376; Linton u. Hurley, 14 
 Gray (Mass.) 191. 
 
 1 Detection of poisons. Mitchell v. 
 State, 58 Ala. 418 ; Polk v. State, 36 
 Ark. 117 ; State v. Hinkle, 6 Iowa, 380 ; 
 State V. Cook, 17 Kan. 392 ; State v. 
 Knights, 43 Me. 11; Bierce v. Stock- 
 ing, 11 Gray (Mass.) 174; People !'. 
 Robinson, 2 Park. (N. Y.) Cr. 236; 
 Hartung v. People, 4 Park. (N. Y.) 
 Cr. 319; State v. Bowman, 78 N. C. 
 509; State v. Slagh, 83 Id. 630; State 
 c. Terrill, 12 Rich. (S. C.) 321. And 
 see a very able article on this subject 
 by R. Ogden Doremus, M.D., LL.D., 
 Prof. Chemistry and Toxicology in 
 Bellevue Hospital Med. Coll. pub- 
 lished in 1 Crim. L. Mag. 293. 
 
§ 296.] EXPERT TESTIMONY. 499 
 
 judicial notice is taken, the opinions of experts, being un- 
 necessary, are inadmissible. Thus an expert cannot give his 
 opinion whether, upon the face of a conveyance of real estate 
 it covers the premises in controversy ; ^ that being a question 
 of domestic law. Nor can lawyers be called to testify what 
 is the practice of the profession, under a certain statute of 
 the State, for the purpose of guiding the judge in the con- 
 struction to be placed upon the statute.^ 
 
 So, also, an attorney should not be permitted to give his 
 opinion on a matter of moral or legal obligation, such as the 
 rights and duties of another attorney as between himself and 
 his client.^ But his opinion is admissible, as that of an ex- 
 pert, on the question of the value of the professional services 
 of another attorney.* 
 
 (2) Proof of foreign law. By foreign law is here meant 
 the written, and unwritten law of a sister state, as well as 
 that of a foreign country ; and, as a general rule, only the un- 
 written law can be proved by expert testimony, under the 
 rule requiring the best evidence.^ 
 
 The statute itself, if the foreign law in question be a writ- 
 ten one, is the best evidence, and is ordinarily, but not always 
 required." But in the absence of evidence that the foreign 
 law in question is a written law, it will be presumed that it 
 is unwritten;^ and the extreme difficulty of its production 
 has, in some cases, led to the admission of oral evidence of it.^ 
 
 ' Norment v. Tastnaght, 1 Mac- ceired which presupposes better testi- 
 
 Arth. (D. C.) 515. mony attainable by the party who 
 
 '^ Gaylor's Appeal, 43 Conn. 82. offers it, applies to foreign law, as it 
 
 Rut see Armstrong v. Kisteau, 5 Md. does to all other facts." Per Chief 
 
 256. Justice Marshall, in Church v. Hub- 
 
 3 Chessman v. Merkel, 3 Bosw. bart, 2 Cranch (U. S.) 187, 237. 
 (N. Y.) 402. ^ Thus the practice and usage un- 
 
 * Allis V. Day, 14 Minn. 516 ; Har- der the statute law of a sister state 
 
 nett V. Garvey, 66 N. Y. 641 ; Wil- may be proved by the evidence of ex- 
 
 liams V. Brown, 28 Ohio St. 547; An- perts (Greasonsw. Davis, 9 Iowa, 219) ; 
 
 thony r. Stinson, 4 Kan. 211; Ottawa as may its "exposition, interpretation, 
 
 University v. Parkinson, 14 Kan. and adjudication." Walker «. Forbes, 
 
 159 ; Jevne v. Osgood, 57 111. 340. In 31 Ala. 9 ; Hoes v. Van Alstyne, 20 
 
 Thompson v. Boyle (85 Pa. St. 477) 111. 202. 
 
 it is said that "the very best means ' Dougherty v. Snyder, 15 S. & K. 
 
 of adjusting this value are the opin- (Pa.) 84. But see Seeton v. Delaware 
 
 ions of those who, in earning and re- Ins. Co., 2 Wash. (U. S.) 175, 176; 
 
 ceiving compensation for them, have Robinson v. Clifford, Id. 1. 
 learned what legal services in their ^ See Roberts' Will, 8 Paige (N.Y.) 
 
 various grades are worth." 440 ; Barrows v. Downs, 9 R. I. 453. 
 
 5 " That no testimony shall be re- 
 
500 OPINIONS. [chap. XXVI. 
 
 The univritten laws, customs, and usages, of a foreign coun- 
 try, or of another State of the Union, may be proved by parol 
 evidence. Mr. Story, in his Commentaries iipon the Conflict 
 of Laws, says : " The usual course is to make such proof by 
 tlie testimony of competent witnesses instructed in the law, 
 under oath." i 
 
 Any person, however, whether a professional lawyer or not, 
 who appears to the court to be well informed on the point, is 
 competent.^ So, a clergyman of another State is competent 
 to prove the law of that state relating to marriage,^ and 
 Mexicans, not lawyers, may prove the land laws prevailing 
 in Mexico.* And it seems, the witness's knowledge of the 
 foreign law need not have been acquired in the country gov- 
 erned by that law.^ 
 
 § 297. Surveyors and Civil Engineers. — (1) Surveyors. A 
 practical surveyor, who testifies that he is familiar with the 
 peculiar marks used by the United States surveyors, in their 
 government surveys, may give his opinion whether a particu- 
 lar line was marked by them.^ Such a surveyor may state his 
 opinion as to whether certain piles of stones and tree-marks 
 are boundary monuments.'' In a contest between adjacent 
 
 1 Story Confl. Laws. 530. See The unwritten law of a foreign 
 
 also Kenny v. Van Horn, 1 Johns country, or another state, may also be 
 
 (N. Y.) 385, 394; Woodbridge v. Aus- proved by books of reports and cases 
 
 tin, 2 Tyler (Vt.) 364, 367; Robinson decided. Eaynham v. Canton, 3 Pick. 
 
 V. Clifeord, 2 Wash. (U. S.) 1,2; Liv- (Mass.) 293, 296; M'Rae ;;. Mattoon, 
 
 ingston v. Maryland Ins. Co., 6 Cranch 13 Id. 59 ; Dougherty v. Snyder, 15 ; 
 
 (U. S.) 274; Lincoln v. Battelle, 6 S. & R. (Pa.) 87; Latimer u. Eglin, 4 
 
 Wend. (N. Y.) 482; Bagley v. Fran- Dess. (S. C.) Eq. 26, 32; Brush v. 
 
 cis, 14 Mass. 453 ; Willings r. Conse- Scribner, 11 Conn. 407. So, by 
 
 qua, 1 Pet. (U. S.) C. C. 225, 229; public history (Dougherty v. Sny- 
 
 Brush !J. Wilkins, 4 Johns (N. Y.) Ch. der, supra), and by the public docu- 
 
 506, 520; Chanoine v. Powler, 3 ments of the country. Semhle, Wil- 
 
 Wend. (N. Y.) 117 ; Wilson v. Smith, son v. Smith, 5 Yerg. (Tenn.) 398, 
 
 5 Yerg. (Tenn.) 398, 399; M'Rae v. 399. Sometimes, it is said, eertifi- 
 
 Mattoon, 13 Pick. (Mass.) 53. cates of persons of high authority 
 
 '^ Amer. Life Ins. Co. v. Rosenagle, hare been allowed as evidence. Story 
 77 Pa. St. 507 ; Pickard v. Bailey, 26 Confl. Laws, 530. See In re Dornioy, 
 N. H. 152 ; Hall v. Costello, 48 N. H. 3 Hagg. Eccl. 767. See Leland v. 
 176. See also Dauphin v. United Wilkinson, 6 Pet. (U. S.) 317. 
 States, 6 Ct. of CI. 221 ; Consolidated ^ Molina v. United States, 6 Ct. of 
 Real Estate &c. Co. v. Cahow, 41 Md. CI. 269. But see Bristow v. Seque- 
 59; Mowry <,-. Chase, 100 Mass. 79; ville, 5 Exch. 272; Cartwright v. Cart- 
 Wilson V. Carson, 12 Md. 54 ; Phelps wright, 26 W. R. 684. 
 V. Town, 14 Mich. 374. e Brantly v. Swift, 24 Ala. 390. 
 
 3 BirdK. Com., 21 Gratt. (Va.) 800.' ' Davis v. Mason, 4 Pick. (Mass.) 
 
 * State V. Cuellar, 47 Tex. 304. 156. 
 
§ 297.] EXPERT TESTIMONY. 501 
 
 lot-owners, as to the true location of the line, a practical stir- 
 veyor, who has made an actual survey and plat of the lots, 
 may give in evidence his opinion as to the correctness of sucli 
 plat, and may state the result of his survey as to the location 
 of the lines, and of buildings and fences on the lots with ref- 
 erence to such lines.^ Such a surveyor need not be a county 
 or government surveyor to enable him to testify to his sur- 
 veys or the correctness of any plat of them.^ His opinion is 
 admissible to show that certain marks on a tree, claimed as a 
 corner, were corner or line marks ; but is not admissible to 
 show that it was the corner of a particular grant.^ 
 
 But a surveyor's evidence in such cases may be controlled, 
 as well as any other parol evidence, by circumstances or other 
 evidence.* Thus, where he testifies to certain corner marks, 
 as having been made by a former surveyor, his belief that 
 they were so made is not to be received as an expert opinion, 
 but merely as the testimony of a witness to a fact within his 
 knowledge, and is to be credited by the jury only so far as 
 they believe him able, from his personal knowledge, to iden- 
 tify the marks in question.^ Such an opinion is not evidence 
 although the surveyor has died since expressing it.^ So, also, 
 a surveyor's opinion is not admissible as to the construction 
 to be given to a survey, as returned,^ or, as to the controlling 
 calls in a conveyance,^ or the true location of land in contro- 
 versy ;^ nor can he deny the accuracy of the scale in his plat.^" 
 
 (2) Civil Engineers. Engineers who have taken the 
 comparative levels of a fountain of water, and of certain 
 agricultural drains laid in the same lot of land, and have 
 examined the character of the subsoil intervening between 
 them, are, as experts, competent to testify to their opinion (in 
 
 ' Messer v. Reginnitter, 32 Iowa, 439; Stevens w. West, 6 Jones (N. C.) 
 
 312. See also Phillips v. Terry, 3 L. 49. 
 
 Abb. (N. Y.) App. Dec. 607. ' Ormsby v. Ihmsen, 34 Pa. St. 
 
 2 Mincke v. Skinner, 44 Mo. 92 ; 462. But see Forbes u. Caruthers, 3 
 Shook V. Pate, 50 Ala. 91. Yeates (Pa.) 527 ; Farr v. Swan, 2 Pa. 
 
 3 Clegg V. Fields, 7 Jones (N. C.) St. 245. 
 
 L. 37. 8 Whittlesey v. Kellogg, 28 Mo. 
 
 * Bowling V. Helm, 1 Bibb (Ky.) 404. 
 
 88. See also Jones v. Bache, 3 Wash. ^ Blumenthal v. Roll, 24 Mo. 113 ; 
 
 (U. S.) 199. Sehultz v. Lindell, 30 Mo. 310; Ran- 
 
 6 Barron v. Cobleigh, 11 N. H. dolph v. Adams, 2 W. Va. 519. 
 
 557. 11 Twogood v. Hoyt, 42 Mich. 609. 
 
 <> Wallace u. Goodall, 18 N. H. See also Lincoln v. Barre, 5 Cush, 
 
 (Mass.) 590. 
 
502 OPINIONS. [chap. XXVI. 
 
 connection with the facts upon whicli it is founded) that the 
 drains do not lessen the quantity of water in or injuriously 
 affect the fountain.^ So, skilled engineers may testify that it 
 is not customary to have gates on draw-bridges ; ^ whether a 
 sleeper of a bridge had rotted recently or some time since ; ^ 
 how cuts and embankments should be built or constructed ; * 
 whether, reference being had to the wind and tide, the situa- 
 tion of the banks, the shifting of the sand, etc., a certain bank 
 was the cause of the choking up of a harbor, by stopping the 
 back-water ; ^ and whether a city is liable to be inundated, 
 and the effect upon a harbor of the removal of sand from 
 the shore.® 
 
 On the other hand, a civil engineer cannot give his opinion 
 as to whether it is safe and proper to have draws with drop- 
 gates across the footpath of a bridge when the draw is open ; 
 this is a matter of opinion, and not within the range of ex- 
 pert evidence ; '^ and an engineer is not necessarily an expert 
 on the question of the proper construction of a highwaj'^ ; ^ 
 nor can he testify whether, in his opinion, the right fork of a 
 bayou was a natural outlet, or caused by a crevasse, or some 
 sudden eruption of nature. Whether so caused or not, it 
 was not artificial.^ 
 
 § 298. Mechanics, Artisans, and Persons skilled in a Trade 
 or Vocation. — The competency of a witness as an expert, 
 does not at all depend upon the nature of the calling he 
 follows, but upon the extent of his knowledge of matters 
 connected with that calling, which are of such a character as 
 not to be within the range of common observation and ordi- 
 nary experience. Thus, if it appears that a witness offered 
 as an expert as to the value of goods, has actual knowledge 
 of the stock of goods involved in the issue, and experience 
 in the particular trade or business to which they belong, he 
 should be allowed to state his opinion as to the value of the 
 
 1 Buffum V. Harris, 5 E. I. ^ Clasen v. Milwaukee, 30 Wis. 
 243. 316. 
 
 2 Hart V. Hudson Kirer Bridge ^ Hart v. Hudson Kiver Bridge Co., 
 Co., 84 N. Y. 56. 84 N. Y. 86. 
 
 8 City of Indianapolis v. Scott, 72 ' Benedict v. City of Fond du Lac, 
 
 Ind. 196. 44 Wis. 495. 
 
 * Central E. E. Co. v. Michell, 63 " Avery v. Police Jury, 12 La. Ann. 
 
 Ga. 173. 554. 
 
 5 Polkes V. Chadd, 3 Doug. 157. 
 
§ 298.] 
 
 ■EXPERT TESTIMONY. 
 
 503 
 
 goods.^ So, any persons connected with a particular trade, 
 e.g. the iron trade — whether as manufacturers, retail dealers, 
 or workers in iron, may testify as to the meaning of particu- 
 lar terms or phrases used in that trade.^ It follows from 
 this that there are no special rules as to expert testimony, 
 which apply exclusively, or even particularly, to mechanics, 
 artisans, and persons skilled in any particular trade or voca- 
 tion, except professional experts,^ and experts in handwrit- 
 ing,* the rules relative to which classes of experts are else- 
 where discussed. To examine, therefore, the numerous 
 decisions upon this particular topic in detail, would unduly 
 swell the contents of this book, without adding materially to 
 its usefulness. The decisions, however, have been examined 
 by the writer, and will be found cited below, grouped accord- 
 ing to the business, trade, or vocation followed by the witness 
 offered as an expert in the particular case.^ 
 
 1 Gulf City Ins. Co. v. Stephens, 
 51 Ala. 121. S. P., Laurent v. Vaughn, 
 30 Vt. 90. 
 
 2 Evans r. Commercial &c. Ins. 
 Co., 6 E. I. 47. See also to same 
 effect, Blodgett &c. Co. v. Farmer, 
 41 N. H. 398; Bearss u. Copley, 10 
 N. y. 93; State, ■ii. Cheek, 13 Ired. 
 (N. C.) L. 114 ; King o. Woodbridge, 
 34 Vt. 565. 
 
 8 Supra, §§ 295-297. 
 
 4 Infra, § 299. 
 
 ^ Architects. Gauntlett v. Whit- 
 worth, 2 Car. & K. 720; Wilson v. 
 Bauman, 80 111. 493 ; Mourry v. Lord, 
 3 Abb. (N. Y.) App. Dec. 392 ; Tucker 
 V. Williams, 2 Hilt. (N. Y.) 562; 
 Woodruff V. Imperial Fire Ins. Co., 
 83 N. Y. 133, 138. 
 
 Builders and Carpenters. Wilson 
 V. Bauman, sii/)?'a; Haver v. Tenney, 
 36 Iowa, 80 ; Tebbetts v. Haskins, 16 
 Me. 283 ; Shepard v. Ashley, 10 Allen 
 (Mass.) 542; Moulton v. McOwen, 
 103 Mass. 587 ; Simmons v. Carrier, 
 68 Mo. 416; Tinney v. New Jersey 
 Steamboat Co., 12 Abb. (N. Y.) Pr. 
 N. s. 1 ; s. c, 5 Lans. 507 ; Mead v. 
 Northwestern Ins. Co., 7 N. Y. 530; 
 Bedell v. L. I. R. R. Co., 44 N. Y. 
 367 ; Sikes v. Paine, 10 Ired. (N. C.) 
 L. 280; Hills !•. Home Ins. Co., 129 
 Mass. 345 ; Hough v. Cook, 60 111. 581. 
 
 Gardeners, farmers, dairy-men, and 
 stock-raisers. Spiva v. Stapleton, 38 
 Ala. 171; Young v. O'Neal, 57 Id. 
 560 ; Polk V. Coffin, 9 Cal. 56 ; Bells 
 V. City of Ottawa, 35 Iowa, 109 ; Bal- 
 timore &c. R. R. Co. V. Thompson, 10 
 Md. 76 ; Vandene v. Burpee, 13 Mete. 
 (Mass.) 288; Carpenter <,-. Wait, 11 
 Cush. (Mass.) 257; Higgins v. Dewey, 
 107 Mass. 494 ; Clague v. Hodgson, 16 
 Minn. 329; Keith r. Tilford, 12 Neb. 
 275 ; Whitbeck v. New York &c. R. R. 
 Co., 36 Barb. (N. Y.) 644 ; Seamans 
 V. Smith, 46 Id. 320; Phillips v. Terry, 
 3 Abb. (N. Y.) App. Dec. 609; Lane 
 V. Wilcox, 55 Barb. (N. Y.) 615; 
 Eraser v. Tupper, 29 Vt. 409. 
 
 Insurance experts. Milwaukee &c. 
 R. R. Co. V. Kellogg, 94 U. S. 469 ; 
 Hawes v. New England &c. Ins. Co , 
 2 Curt. (U. S.) 229 ; Moses v. Delaware 
 Ins. Co., 1 Wash. (U. S.) 385; McLana- 
 han V. Universal Ins. Co., 1 Pet. (U. S.) 
 170, 187; Schmidt v. Peoria Murine 
 Ins. Co., 41 111. 295 ; Niagara Ins. Co. 
 V. Greene, 77 Ind. 595; Summers c. 
 United States Ins. Co., 13 La. Ann. 
 504 ; Joyce v. Maine Ins. Co., 45 Me. 
 168; Cannell v. Phoenix Ins. Co., 59 
 Me. 582; State v. Watson, 65 Me. 74 ; 
 Thayer v. Providence Ins. Co., 70 Me. 
 539 ; Daniels v. Hudson River Eire 
 Ins. Co., 12 Cush. (Mass.) 416 ; Mulry 
 
504 
 
 OPINIOJ^S. 
 
 [chap. XXVI. 
 
 § 299. Experts in Handwriting. — Proof of handwriting gen- 
 erally. The simplest and most obvious proof of handwrit- 
 
 V. Mohawk Valley Ins. Co., 5 Gray 
 (Mass.) 545; Luce v. Dorchester Ins. 
 Co., 105 Mass. 297; Hill i. Lafayette 
 Ins. Co., 2 Mich. 476 ; Kern v. South 
 St. Louis Mut. Ins. Co., 40 Mo. 19; 
 Schenck v. Mercer Co. Mut. Ins. Co., 
 4 Zab. (N. J.) 451; Hobby ^. Dana, 
 17 Barb. (N. Y.) Ill ; Rawls v. Amer. 
 Mut. Life Ins. Co., 27 N. Y. 282 ; Hig- 
 bie V. Guardian Mut. Life Ins. Co., 53 
 N. Y. 603 ; Appleby v. Astor Fire Ins. 
 Co., 54 N. Y. 253; Cornish v. Farm 
 Buildings Ins. Co., 74 N. Y. 295 ; Hart- 
 ford Protection Ins. Co. u. Harmer, 2 
 Ohio St. 452; Hartman u. Keystone 
 Ins. Co., 21 Pa. St. 466. 
 
 Lumbermen. Moore v. 'Lea, 32 Ala. 
 375; Boston &c. R. R. Corp. u. Old 
 Colony &c. R. R. Corp., 3 Allen 
 (Mass.) 142; Hayward v. Knapp, 23 
 Minn. 430 ; Dean v. McLean, 48 Vt. 
 412 ; Salvo v. Duncan, 49 Wis. 157. 
 
 Machinists and mechanical engineers. 
 Cooper V. Central R. R., 44 Iowa, 1.34 ; 
 Shildon v. Booth, 50 Id. 209 ; Searer 
 V. Boston &c. R. R. Co., 14 Gray 
 (Mass.) 466; Buxton u. Somerset 
 Potter's Works, 121 Mass. 448 ; Curtis 
 e. Gano, 26 N. Y. 426 ; James v. Hods- 
 den, 47 Vt. 127 ; Brabbitts u. Chicago 
 &c. R. R. Co., 38 Wis. 289. 
 
 Masons. Montgomery v. Gilmer, 33 
 Ala. 116; Underwood v. Waldron, 33 
 Mich. 232 ; Smith v. Gugerty, 4 Barb. 
 (N. Y.) 619. 
 
 Mechanics. Shulte v. Hennessey, 40 
 Iowa, 352; Moulton v. McOwen, 103 
 Mass. 587 ; Downs v. Sprague, 1 Abb. 
 (N. Y.) App. Dec. 550. 
 
 Millers and millwrights. Stein v. 
 Burden, 24 Ala. 130; Walker v. State, 
 58 Ala. 393; Doster v. Brown, 25 Ga. 
 24; Walker v. Fields, 28 Ga. 237; 
 Cooke V. England, 27 Md. 14 ; Clag- 
 gett V. Easterday, 42 Md. 617; Ham- 
 mond V. Woodman, 41 Me. 177 ; Woods 
 V. Allen, 18 N. H. 28 ; Read v. Barker, 
 1 Vr. (N. J.) 378 ; Detweiler v. Groff, 
 10 Pa. St. 376; Haas v. Choussard, 17 
 Tex. 592. 
 
 iifining pxperts. Blood v. Light, 31 
 Cal. 115 ;' Clark v. Willett, 35 Cal. 534 ; 
 
 Koster v. Noonan, 8 Daly (N. Y.) 232 ; 
 Stambaugh v. Smith, 23 Ohio St. 584 ; 
 Snowden v. Idaho Quartz Mfg. Co., 
 55 Cal, 450. 
 
 Nautical experts. McLanahan v. 
 Universal Ins. Co., 1 Pet. (U. S.) 183; 
 The City of Washington, 92 U. S. 31 ; 
 Transportation Line v. Hope, 95 Id. 
 297 ; Weaver u. Alabama &c. Co., 35 
 Ala. 176 ; Marcy v. Sun Ins. Co., 11 
 La. Ann. 748 ; Lapham u. Atlas Ins. 
 Co., 24 Pick. (Mass.) 1 ; Parsons o. 
 Manuf. &c. Ins. Co., 16 Gray (Mass.) 
 463; Paddock o. Comm'onwealth Ins. 
 Co., 104 Mass. 521 ; Clark v. Detroit 
 Locomotive Works, 32 Mich. 348 ; 
 Hill V. Sturgeon, 28 Mo. 323; Price v. 
 Powell, 3 N. Y. 322 ; Price v. Harts- 
 horn, 44 N. Y. 94 ; Leitch !■. Atlantic 
 Mut. Ins. Co., 66 N". Y. 100; Gurter- 
 man v. Liverpool &c. S. S. Co., 83 N. 
 Y. 358; Western Ins. Co. v. Tobin, 32 
 Ohio St. 77 ; Steamboat v. Logan, 18 
 Ohio, 375; Reed o. Dick, 8 Watts 
 (Pa.) 479. 
 
 Painters and photographers. Foulkes 
 V. Chadd, 4 Dougl. 157 ; Barnes v. 
 Ingalls, 39 Ala. 193 ; People v. Muller, 
 96 N. Y. 408, where Andrews, J., says : 
 " It does not require an expert in art 
 or literature to determine whether a 
 picture is obscene, or whether printed 
 words are offensive to decency and 
 good morals. These are matters 
 which fall within the range of ordi- 
 nary intelligence, and a jury does not 
 require to be informed by an expert 
 before pronouncing upon them." 
 
 Patent, copyright, and trademarh ex- 
 perts. Gaboon v. Ring, 1 Cliff. (U. S.) 
 592 ; Lawrence v. Dana, 4 Id. 72 ; Hud- 
 son V. Draper, Id. 181; Waterbury 
 Brass Co. o. New York &c. Co., 3 Fish. 
 Pat. Cas. 54; Corning v. Burden, 12 
 How. (U. S.) 252; Winans v. New 
 York &c. R. R. Co., 21 Id. 88; McMahon 
 V. Tyng, 14 Allen (Mass.) 167. 
 
 Hailroad experts. Mobile &c. R. R. 
 Co. V. Blakeley, 59 Ala. 471; Pennsyl- 
 vania Co. V. Conlan, 101 111. 93 ; Jeffer- 
 sonville R. R. Co. xu Lanham, 27 Ind. 
 171; Cooper v. Central R. R., 44 Iowa, 
 
§ 299.] EXPERT TESTIMONY. 505 
 
 ing is the testimony of a witness, who saw the paper or sig- 
 nature actually written. But a great variety of cases must 
 continually occur where such a direct kind of evidence can- 
 not possibly be procured. The writing may be secret in its 
 nature ; or no person may have been present at the time ; or 
 if a person was present, he may be dead or unknown. In 
 this deficiency of positive proof, the best evidence which the 
 nature of the case admits, is the information of witnesses 
 acquainted with the supposed writer, who, from seeing him 
 write, have acquired a knowledge of his handwriting; for, 
 in every person's manner of writing, there is a certain dis- 
 tinct prevailing character, which may be discovered by 
 observation, and when once known, may be afterwards ap- 
 plied as a standard to try any other specimen of writing 
 whose genuineness is disputed.^ But there are many in- 
 stances in which neither of these means of proof is available, 
 and it is in these cases the opinions of chirographic experts 
 are resorted to ; ^ such opinions being usually based on a 
 comparison of the writing, the genuineness of which is in 
 question, with another writing by the same individual 
 admitted or proved to be genuine. The foundation of this 
 comparison is in the theory that in every person's handwrit- 
 ing there is a certain characteristic which constantly repeats 
 itself, and that too, unconsciously, or even against the will 
 of the writer ; that this characteristic is beyond the control 
 of the writer, and the expert having possessed himself of the 
 particular characteristic of the handwriting of the person in 
 question, can judge whether any other specimen of writing 
 
 140 ; Seaver v. Boston &c. R. E. Co,, 438 ; People «. Morrigan, 29 Mich. 5 ; 
 14 Gray (Mass.) 466; Detroit &c. R. James i>. Finch, 37 Miss. 461; Wiggins 
 R. Co. V. Van Steinburg, 17 Mich. 99; v. Wallace, 19 Barb. (N. Y.) 338. 
 Motti-. Hudson River R.R. Co., 8 Bosw. i 2 Phil. Ev. *595. 
 (N. Y.) 845 ; Murphy v. New York &c. ^ But the opinion of a non-expert 
 R. R. Co. 66 Barb. (N. Y.) 125 ; Hoyt witness who has corresponded with the 
 !'. Long Island R. R. Co., 57 N. Y. 678 ; person whose handwriting is in ques- 
 Bellefontaine &c. R. R. Co. v. Bailey, tion, or received business eommunica- 
 11 Ohio St. 833; Cincinnati &c. R. R. tions from such person in his hand- 
 Co. a. Smith, 22 Id. 227 ; Bixby v. writing, is also admissible. Chaffee 
 Montpelier &c. R. R. Co., 49 Vt. 125 ; ,j. Taylor, 3 Allen (Mass.) 598 ; Em- 
 Brabbitts v. Chicago &c. R'y Co., 38 pire Mfg. Co. c. Stuart, 46 Mich. 482 ; 
 Wis. 289. Clark v. Freeman, 25 Pa. St. 133. See 
 Miscellaneous rulings. Cottrill v. also Rogers v. Ritter, 12 Wall. (U. S.) 
 Myrick, 12 Me. 222 ; State v. Watson, 317. 
 65 Me. 74 ; Prew v. Donahue, 118 Mass. 
 
506 OPINIONS. [chap. XXVI. 
 
 claimed to be his, is so or not, from tlie presence or absence 
 of such distinguishing feature.^ 
 
 Another test of genuineness is the facsimile test. It has 
 been asserted tliat no person writes even his own name twice 
 alike, so that if upon superimposition against the light, two 
 signatures perfectly coincide, one of them, at least, must be 
 a forgery .2 
 
 (2) Who are considered experts in handwriting. While 
 a witness, to testify as an expert, must possess certain qualifi- 
 cations not common to the mass of mankind, still it has been 
 held that handwriting may be proved by any one having a 
 knowledge of the character of tlie penmanship of the person 
 whose handwriting is in question, even though the witness 
 never saw the party write.^ Experts, however, go farther 
 than this, and may give their opinions on the genuineness of 
 a signature, upon examination thereof at the time of trial, 
 though unacquainted with the handwriting of the person 
 whose signature it purports to be.* This is done after com- 
 paring the disputed signature with a genuine one.^ But in 
 order to render one a competent witness, as an expert, to the 
 genuineness of a signature, he must have been educated in 
 the business concerning which he testifies, or he must have 
 acquired actual skill and knowledge thereon. It is not 
 enough that he has sometimes compared signatures of 
 other persons, when disagreements as to their genuineness 
 had risen in the course of business.^ The witness must be 
 one of those "who by study, occupation, and habit, have 
 been skilful in marking and distinguishing the character- 
 istics of handwriting.'"'' To qualify him as an expert, he 
 " must have been educated in the business about which he 
 testifies ; or it must first be shown that he has acquired actual 
 skill and scientific knowledge upon the subject."^ 
 
 1 See article on this subject in 2 272. But see Pate v. People, 8 111. 
 Cr. L. Mag. 139 ; Plunkett ;;. Bowman, 644. 
 
 2 McCord (S. C.) 139. ^ Withee v. Rowe, 45 Me. 571 ; 
 
 2 See 4 Am. Law Eev. 625, 649. Hicks v. Person, 19 Ohio, 426 ; Calkins 
 8 State .;. Spence, 2 Harr. (Del.) v. State, 14 Ohio St. 222. To the 
 
 348 ; Reid v. Hodgson, 1 Cranch C. C. contrary, Wilson v. Ifirkland, 5 Hill 
 
 (U. S.) 491; Hammond's Case, 2 Me. (N. Y.) 182. 
 
 33 ; Page v. I-Iomans, 14 Me. 478 ; Burn- ^ Woodman v. Dana, 52 Me. 9. 
 
 ham V. Ayer, 36 N. H. 182 ; Jones v. ^ Goldstein v. Black, 50 Cal. 462. 
 
 Huggins, 1 Dev. (N. C.) L. 223 ; First ' Sweetser v. Lowell, 33 Me. 450. 
 
 Nat. Bank v. Omaha, 5 Neb. 247 ; Tur- « Goldstein v. Black, 50 Cal. 464. 
 nipseed v. Hawkins, 1 McCord (S. C.) 
 
§ 299.] 
 
 EXPERT TESTIMONY. 
 
 507 
 
 In applying these and like tests of competency, bank 
 tellers,^ cashiers,^ counting-house clerks,^ engravers,* writing- 
 masters,^ photographers,'' post-office clerks,^ court clerks,^ 
 county clerks,^ sheriffs,^'' conveyancers,^^ exchange-brokers,^^ 
 and persons experienced in many other lines of employment, 
 more or less connected with the critical examination of 
 handwriting, have been held to possess the requisite qualifi- 
 cations of experts. 
 
 Thus we see that great importance is attached to the busi- 
 ness experience of the witness, which must, ordinarily, have 
 been such as to give him special skill. ^^ 
 
 The court must pass, in the first instance, both upon the 
 competency of the witness as an expert, and the sufficiency 
 of the proof of writings to be used as standards of com- 
 parison.^* 
 
 (3) Comparison of writings. In England, since 1854, com- 
 parison of handwritings placed in juxtaposition by experts, 
 has been allowed ; ^^ and a number of the States of the Union 
 
 1 Johnson u. State, 35 Ala. 370; 
 Sperden u. State, 3 Tex. App. 156, 
 159. 
 
 2 Dubois V. Baker, 30 N. Y. 355 ; 
 Hess V. State, 5 Ohio, 5 ; State v. Phair, 
 48 Vt. 366. See also Pate v. People, 
 8 111. 644. 
 
 s Eeyhurn v. Bellotti, 10 Mo. 597 ; 
 State V. Ward, 39 Vt. 225. 
 
 * R. V. Williams, 8 Car. & P. 34; 
 Norman v. Morell, 4 Ves. 768. 
 
 ^ Moody r.Rowell, 17 Pick (Mass.) 
 490; Bacon u. Williams, 13 Gray 
 (Mass.) 525. 
 
 ^ Marcy v. Barnes, 16 Gray (Mass.) 
 161 ; Bacon v. Williams, supra. Com- 
 pare Tyler v. Todd, 36 Conn. 218. 
 
 7 Revett V. Braham, 4 T. R. 49. 
 
 8 Amherst Bank v. Root, 2 Mete. 
 (Mass.) 522 ; Yates v. Yates, 76 N. C. 
 142. 
 
 9 State V. Phair, 48 Vt. 366. 
 1" Yates V. Yates, supra. 
 
 " Vinton v. Peck, 14 Mich. 287. 
 
 12 Johnson v. State, 35 Ala. 370. 
 
 13 State V. Tompkins, 71 Mo. 616. 
 Yet it has been held that the fact that 
 the employments of a witness have not 
 been such as to require him to distin- 
 guish between true and simulated 
 
 handwriting, is not, of itself alone, a 
 sufficient reason to preclude him from 
 giving an opinion as to the genuine- 
 ness of a disputed signature, though 
 the opinion is founded merely upon a 
 comparison of writings. Sweetser v. 
 Lowell, 33 Me. 446. See also Miles 
 V. Loomis, 75 N. Y. 287 ; State v. Shin- 
 born, 46 N. H. 497 ; Calkins r. State, 
 14 Ohio St. 222; Macomber v. Scott, 
 10 Kans. 335; Moody v. Eowell, 17 
 Pick. (Mass.) 490. 
 
 1* Nunes v. Perry, 113 Mass. 274, 
 where it is said that these questions 
 involve so much of the element of fact 
 that great consideration must neces- 
 sarily be given to the decision of the 
 judge at the trial. In all questions of 
 this nature, the ruling at the trial will 
 be sustained, unless it is made clearly 
 to appear that the same was based 
 upon some erroneous view of legal 
 principles; or that the ruling was not 
 justified by the state of the evidence 
 as presented to the judge at the time. 
 See also Demerritt v. Randall, 116 
 Mass. 331. 
 
 1° 17 and 18 Vict. c. 125. The 
 present statute provides, "Comparison 
 of a disputed writing, with any writing 
 
508 
 
 OPINIONS. 
 
 [chap. XXVI. 
 
 have enacted statutes on the subject, legalizing this mode of 
 proof, and, so far as those States are concerned, ridding the 
 law of the embarrassment of much conflict of opinion.^ 
 
 proved to the satisfaction of the judge 
 to be genuine, shall be permitted to be 
 made by witnesses ; and sucli writings, 
 and the evidence of witnesses respect- 
 ing the same, may be submitted to the 
 court and jury as evidence of the 
 genuineness or otherwise of the writ- 
 ing in dispute." 28 and 29 Vict. c. 18, 
 § 8. As to the operation of this pro- 
 vision, Mr. Taylor says, "Under this 
 statutory law it seems clear, first, that 
 any writings, the genuineness of which 
 is proved to the satisfaction, not of 
 the jury, but of the judge (see Eagan 
 V. Cowan, 30 L. T. 22-3, in Ir. Ex.), 
 may be used for the purposes of com- 
 parison, although they may not be ad- 
 missible in evidence for any other pur- 
 pose in the cause (Birch v. Ridgway, 
 
 1 Post. & P. 270 ; Cresswell v. Jackson, 
 
 2 Id. 24) ; and next, that the compari- 
 son may be made either by witnesses 
 acquainted with the handwriting, or 
 by witnesses skilled in deciphering 
 handwriting, or, without the interven- 
 tion of any witnesses at all, by the 
 jury themselves (Cobbett v. Kilmin- 
 ster, 4 Post. & P. 490, per Martin, B.), 
 or in the event of there being no jury, 
 by the court." 2 Tayl. Ev. § 1668. 
 
 1 California. "Evidence respecting 
 the handwriting may also be given by 
 a comparison, made by the witness or 
 the jury, with writings admitted or 
 treated as genuine by the party against 
 whom the evidence is offered or 
 proved to be genuine to the satisfac- 
 tion of the judge." Code Civ. Pro. 
 § 1944. Georgia. "Other writings, 
 proved or acknowledged to be genu- 
 ine, may be admitted in evidence for 
 the purpose of comparison by the 
 jury. Such other new papers, when 
 intended to be introduced, shall be 
 submitted to the opposite party before 
 he announces himself ready for trial." 
 Rev. Code, 1873, p. 674, § 3840. loiva. 
 " Evidence respecting handwriting 
 may be given by comparison made 
 by experts or by the jury, with writ- 
 ings of the same person which are 
 
 proved to be genuine." Code 1873, § 
 3655. Nebraska. " Evidence respect- 
 ing handwriting may be given by 
 comparisons made by experts or by 
 the jury, with writings of the same 
 person which are proved to be gen- 
 uine." Comp. Stat. 1881, p. 576, § 
 344. New Jersey. " In all cases where 
 the genuineness of any signature or 
 writing is in dispute, comparison of 
 the disputed signature or writing, with 
 any writing proved to the satisfaclion 
 of the court to be genuine, shall be 
 permitted to be made by witnesses; 
 and such writings, and the testimony 
 of witnesses respecting the same, may 
 be submitted to the court or jury as 
 evidence of the genuineness or other- 
 wise of the signature or writing in 
 dispute; provided, nevertheless, that 
 where the handwriting of any person 
 is sought to be disproved by compari- 
 son with other writings made by him, 
 not admissible in evidence in the 
 cause for any other purpose, such 
 writings, before they can be compared 
 with the signature or writing in dis- 
 pute, must, if sought to be used 
 before the court or jury by the party 
 in whose handwriting they are, be 
 proved to have been written before 
 any dispute arose as to the genuine- 
 ness of the signature or writing in 
 controversy." Rev. 1877, p. 381, IT 
 19. New York. " Comparison of u, 
 disputed writing with any writing 
 proved to the satisfaction of the court 
 to be genuine, shall be permitted to 
 be made by witnesses in all trials and 
 proceedings, and such writings, and 
 the evidence of witnesses respecting 
 the same, may be submitted to the 
 court and jury as evidence of the 
 genuineness, or otherwise, of the writ- 
 ing in dispute." Laws 1880, eh. 36, 
 p. 141. Oregon. "Evidence respect- 
 ing the handwriting may also be 
 given, by a comparison made by a 
 witness skilled in such matters, or the 
 jury, with writings admitted or treated 
 as genuine by the party against whom 
 
299.] 
 
 EXPERT TESTIMONY. 
 
 609 
 
 In the absence of a statute, three several theories have 
 prevailed in different jurisdictions in the United States : ^ 
 (1) The first of these theories is, that the comparison of 
 writings placed in juxtaposition is improper, and the opin- 
 ions of experts based on such comparison are inadmissible. 
 This theory has been adopted in the Supreme Court of the 
 United States,^ and in Alabama,^ Illinois,^ Kentucky,^ Marj^- 
 land,^ Pennsj'lvania,^ Texas,^ Virginia,^ and Wisconsin ; i*' 
 and was the theory adopted in New Jersey,i^ and Rhode 
 Island,^^ prior to the enactment of the statutory provisions 
 already cited, and up to the time of such enactment. 
 
 (2) The second theory is, that a comparison of writings 
 placed in juxtaposition is proper, the writings being in evi- 
 dence for another purpose and admitted to be genuine, and 
 the opinions of scientific witnesses based on such comparison 
 are admissible in evidence. Such is the theory held by the 
 courts of Colorado,^^ Indiana,^* Kansas,i^ Michigan,!^ Mis- 
 
 the evidence is offered." Gen. Laws, 
 p. 259, § 755. Rhode Island. " Com- 
 parison of a disputed writing, with 
 any writing proved to the satisfaction 
 of the judge to be genuine, shall be 
 permitted to be made by witnesses, 
 and such writings, and the evidence 
 of witnesses respecting the same, may 
 be submitted to the court and jury as 
 evidence of the genuineness, or other- 
 wise, of the writing in dispute." Pub. 
 Stat. 1882, p. 588, § 42. Texas. " It 
 is competent in every case to give 
 evidence of handwriting by compari- 
 son, made by experts or by the jury; 
 but proof by comparison only shall 
 not be sufficient to establish the hand- 
 writing of a, witness who denies his 
 signature under oath." Rev. Stat. 
 1879, Code Crim. Pro., Art. 754. 
 
 1 For this analysis, and the statu- 
 tory quotations given in the preceding 
 note, the writer is indebted to the 
 excellent work of Henry Wade Rogers, 
 Esq., on Expert Testimony. 
 
 2 Strother v. Lucas, 6 Pet. (U. S.) 
 763; Moore v. United States, 91 XJ. 
 S. 270. 
 
 s Little V. Beazley, 2 Ala. 703 ; 
 State V. Givens, 5 Ala. 747 ; Kirksey 
 V. Kirksey, 41 Ala. 640. 
 
 * Jumpertz v. People, 21 111. 374 ; 
 Kernin v. Hill, 37 111. 209. 
 
 ^ Hawkins v. Grimes, 13 B. Mon. 
 267 ; McAlister v. McAlister, 7 Id. 
 270. 
 
 6 Miller o. Johnson, 27 Md. 36; 
 Tome 0. Parkersburg &c. E. R. Co., 
 39 Md. 36. 
 
 ' Aumick v. Mitchell, 82 Pa. St. 
 211; Haycock u. Greup, 57 Id. 438; 
 Travis v. Brown, 43 Id. 9, 15 ; Lodge v. 
 Pipher, 11 S. & R. 334; Bank of Penn- 
 sylvania V. Jacobs, 1 Pa. 178. 
 
 8 Handley v. Gandy, 28 Tex. 211. 
 
 ° Eowt V. Kile, 1 Leigh, 216. 
 
 i» State V. Miller, 47 Wis. 530; 
 Hazleton v. Union Bank, 32 Id. 34. 
 
 11 West V. State, 2 Zab. (N. J.) 241, 
 242. 
 
 12 Kinney v. Plynn, 2 R. I. 319. 
 " Miller v. Eicholtz, 5 Colo. 243. 
 
 1* Hazard v. Vickery, 78 Ind. 64; 
 Forgery c. First Nat. Bank, 66 Ind. 
 123, 125; Burdick v. Hunt, 43 Ind. 
 381; Chance y. Indianapolis &c. Co., 
 32 Ind. 472. 
 
 15 Macomber v. Scott, 10 Kan. 335. 
 
 16 Vinton c Peck, 14 Mich. 287 ; 
 Matter of Foster's Will, 34 Mich. 21 ; 
 First National Bank v. Robert, 41 
 Mich. 709. 
 
510 
 
 OPINIONS. 
 
 [chap. XXVI. 
 
 souri,! and Nev/ York prior to legislative enactment already 
 noted,^ and North Carolina.^ 
 
 (3) According to the third theory, experts are permitted 
 to express an opinion,- based not merely on a comparison of 
 writings conceded to be genuine, but on writings, the genu- 
 ineness of which has been proved on the trial for the express 
 purpose of comparison. Such testimony has been received 
 in Connecticut,* Maine,^ Massachusetts,^ Mississippi,' New 
 Hampshire,^ and Ohio.^ 
 
 § 300. Effect and Value of Expert Testimony. — The jury 
 are to judge of the weight of expert testimony, and by apply- 
 ing the same tests as in the case of ordinary witnesses. i" In 
 
 1 Corby v. Weddle, 57 Mo. 452; 
 State V. Clinton, 67 Mo. 380; Stat'e v. 
 Tompkins, 71 Mo. 616; Pourcelly v. 
 Lewis, 8 Mo. App. 593. 
 
 2 Dubois V. Balser, -SO N. Y. 355. 
 
 8 Yates V. Yates, 76 N. C. 142; 
 McLeod V. Bullard, 84 N. C. 515. 
 
 * Tyler u. Todd, 36 Conn. 222; 
 Lyon V. Lyraan, 9 Conn. 59, 60. 
 
 5 Sweetser v. Lowell, 33 Me. 446 ; 
 Woodman v. Dana, 52 Me. 9; Page v. 
 Homans, 14 Me. 478. 
 
 6 Moody V. Rowell, 17 Pick. 490; 
 Eichardson v. Newcomb, 21 Pick. 
 315; King v. Donahue, 110 Mass. 155, 
 15G ; Martin v. Wallis, 11 Mass. 309, 
 312; Martin v. Maguire, 7 Gray, 177. 
 
 ^ Wilson V. Beauchamp, 50 Miss. 
 24. 
 
 8 State V. Hastings, 53 N. H. 452. 
 
 " Pavey v. Pavey, 30 Ohio St. 600 ; 
 Bragg V. Colwell, 19 Ohio St. 412; 
 Calkins r. State, 14 Ohio St. 222; 
 Hicks V. Person, 19 Ohio, 426. 
 
 As to the objections which may be 
 raised to the introduction of speci- 
 mens of writing not admitted to be 
 genuine, or in the case for some other 
 purpose, the Supreme Court of Kan- 
 sas say : " The principal, if not the 
 only, objections urged against this 
 kind of eridence are as follows : 1st. 
 The writings offered in evidence as 
 specimens, may be manufactured for 
 the occasion. 2d. Fraud may be 
 practised in the selection of the 
 writings. 3d. The other party may 
 be surprised ; he may not know what 
 
 documents are to be produced, and 
 therefore he may not be prepared to 
 meet the inferences sought to be 
 drawn from them. 4th. The hand- 
 writing of a person may be changed 
 by age, health, habits, state of mind, 
 position, haste, penmanship, and writ- 
 ing materials. 5th. The genuineness 
 of the specimens of handwriting offered 
 in evidence may be contested, and 
 others successively introduced, to the 
 infinite multiplication of collateral 
 issues, and the subversion of justice. 
 6th. Juries are too illiterate, and are 
 not competent to judge of this kind 
 of evidence." Macomber v. Scott, 10 
 Kan. 339. 
 
 ^» Carter v. Baker, 1 Sawy. (U. S.) 
 512 ; Mitchell v. State, 58 Ala. 418 ; 
 Tatum V. Mohr, 21 Ark. 354 ; Forgery 
 V. First Nat. Bank, 66 Ind. 123 ; John- 
 son V. Thompson, 72 Ind. 167 ; State 
 V. Secrist, 80 N. C. 450; Parnell v. 
 Com., 86 Pa. St. 260; Howard v. Provi- 
 dence, 6 E. I. 516 ; Pratt v. Rawson, 
 40 Vt. 183. 
 
 " There is no rule of law that re- 
 quires jurors to surrender their judg- 
 ments implicitly to, or even to give a 
 controlling influence to the opinions 
 of scientific witnesses, however learned 
 or accomplished they may be, and 
 however they may speak with con- 
 ceded intelligence and authority, aided 
 by the accumulated results of a long 
 experience." Brehm v. Gt. Western 
 E. E. Co. 34 Barb. (N. Y.) 256, 272. 
 
300.] 
 
 EXPERT TESTIMONY. 
 
 speaking of this kind of testimony the Supreme Court of 
 Kansas say : " It must have its legitimate influence by 
 enlightening, convincing, and governing the judgment of the 
 jury, and must be of such a character as to outweigh, by its 
 intrinsic force and probability, all conflicting testimony. 
 The jury cannot be required by the court to accept, as mat- 
 ter of law, the conclusions of the witnesses instead of their 
 own."-' They may exercise their own independent judg- 
 ment.^ The value of this sort of testimony must in the 
 nature of things depend very much upon the peculiar cir- 
 cumstances of the particular case, and of these the jury are 
 the judges. The court, in charging them, may comment upon 
 the evidence given, if in so doing the jury are left to the 
 guidance of their own convictions.^ The evidence of experts, 
 being merely the expression of opinions, is always exposed to 
 a reasonable degree of suspicion. They are apt to be biassed 
 
 1 Anthony v. Stinson, 4 Kan. 221. 
 
 ^ Head o. Hargrave, 14 Cent. L. 
 J. 388, 389; s. c, 105 U. S. 45, where 
 Mr. Justice Field tlius lays down the 
 law upon this subject : " It was the 
 province of the jury to weigh the tes- 
 timony of the attorneys as to the 
 value of the services, by reference to 
 their nature, the time occupied in 
 their performance, and other attend- 
 ing circumstances, and by applying 
 to it their own experience and knowl- 
 edge of the character of such services. 
 To direct them to find the value of 
 the services from the testimony of 
 the experts alone, was to say to them 
 that the issue should be determined 
 by the opinions of the attorneys, and 
 not by the exercise of their own judg- 
 ment of the facts on which those 
 opinions were given. The evidence 
 of experts as to the value of profes- 
 sional services does not differ, in prin- 
 ciple, from such evidence as to the 
 value of labor in other departments 
 of business, or as to the value of 
 property. So far from laying aside 
 their own general knowledge and 
 ideas, the jury should have applied 
 that knowledge and those ideas to 
 the matters of fact in evidence, in 
 determining the weight to be given to 
 the opinions expressed ; and it was 
 
 only in that way that they could 
 arrive at a, just conclusion. While 
 they cannot act in any case upon par- 
 ticular facts material to its disposition 
 resting in their private knowledge, 
 but should be governed by the evi- 
 dence adduced, they may, and, to act 
 intelligently, they must judge of the 
 weight and force of that evidence by 
 their own general knowledge of tlie 
 subject of inquiry. If, for example, 
 the question were as to the damages 
 sustained by a plaintiff from a frac- 
 ture of his leg by the carelessness of a 
 defendant, the jury would ill perform 
 their duty, and probably come to a 
 wrong conclusion, if controlled by the 
 testimony of the surgeons, not merely 
 as to the injury inflicted, but as to 
 the damages sustained, they should 
 ignore their own knowledge and ex- 
 perience of the value of a sound limb. 
 . . . They should not have been 
 instructed to accept the conclusions 
 of the professional witnesses in place 
 of their own, however much that tes- 
 timony may have been entitled to 
 consideration. The judgment of wit- 
 nesses, as a matter of law, is in no 
 case to be substituted for that of the 
 jurors." 
 
 2 Tcmpleton v. People, 10 Hun 
 (N. Y.) 357. 
 
512 
 
 OPINIONS. 
 
 [chap. XXVI. 
 
 in favor of the party calling tliem, and their evidence should 
 be received by the jury with caution, and subjected to care- 
 ful scrutiny. An instruction to such effect is not improper.^ 
 
 1 Ihid. But the following instruc- 
 tion was held erroneous in the same 
 case : " There is no more reliance to 
 be placed upon it (the testimony of 
 the expert) than upon the testimony 
 of any other person in this case. I 
 regard you gentlemen of the jury as 
 equally skilled, and as able to decide 
 from the evidence, whether or not the 
 prisoner was insane as Dr. Clymer." 
 And the Supreme Court of Kansas 
 has recently held that to instruct a 
 jury that in "all cases expert testi- 
 mony should be received and weighed 
 with caution " was erroneous. Atchi- 
 
 son &c. R. R. Co. V. Thul, 19 Cent. 
 L. J. 45. See also, upon the pro- 
 priety of instructions upon this sub- 
 ject, Humphries c. Johnson, 20 Ind. 
 190; Whittaker v. Parker, 42 Iowa, 
 586 ; Eggers v. Eggers, 57 Ind. 461 ; 
 Cuneo V. Bessoni, 63 Ind. 524 ; Tinney 
 V. New Jersey Steamboat Co., 12 Abb. 
 (N. Y.) Pr. N. s. 1 ; Pratt u. Rawson, 
 40 Vt. 183. 
 
 In the Appendix to Rogers on Ex- 
 pert Testimony will be found a very 
 full compendium " of the opinions of 
 the courts as to the value of expert 
 testimony." 
 
Paet V. 
 
 ATTENDANCE AND COMPENSATION. 
 
PART y. 
 ATTENDANCE AND COMPENSATION. 
 
 CHAPTER XXVII. 
 
 SECCTRING ATTENDANCE. — PUNISHING DELINQUENTS. — 
 PEIVILEGES OF WITNESSES IN ATTENDANCE AT COUET. 
 
 § 301. Modes of compelling Attendance. 
 
 § 302. Punishment for Refusal to attend. 
 
 § 303. Or for Refusal to be sworn, or to testify. 
 
 § 304. Or for Disobedience of Subpoena duces tecum. 
 
 § 305. Privileges of Witnesses in Attendance at Court. 
 
 § 301. Modes of securing Attendance, — (1) Subpoena. 
 The ordinary process for obtaining the attendance of a wit- 
 ness is the writ of subpoena, wliich it is in the power of all 
 courts having authority to hear and determine issues, whetlier 
 civil or criminal, to issue ; and its issuance is not a matter of 
 discretion, but of right.^ The subpcEna is a judicial writ 
 directed to the witness commanding him to appear at the 
 court to testify what he knows in the cause therein described, 
 pending in such court, under a certain penalty mentioned in 
 the writ.^ Ordinarily the writ suffices for only one term of 
 the court, and if the trial extends into another term, by ad- 
 journment or otherwise, the witnesses must be subpoenaed 
 anew ; but it seems that, at least in Alabama, where a party 
 directs a subpoena for a witness, it is the duty of the clerk 
 to issue it to each succeeding term, until the order is coun- 
 termanded, or the suit disposed of.^ The service of the sub- 
 poena is regulated in each State by statute and rules of court, 
 as is also the requirement as to prepayment or tender of fees 
 and travelling expenses : as to these matters the reader will 
 consult the statute law of the particular forum ; all that 
 
 ^ Edmondson v. State, 43 Tex. 230. ^ Marsh v. Branch Bank at Mobile, 
 2 1 Greenl. Ev. § 309. 10 Ala. 57. 
 
\ 
 
 516 ATTENDANCE AND COMPENSATION, [CHAP. XXVII. 
 
 need be said here, being tliat a tender of fees is necessary 
 onlj' in civil actions.^ 
 
 Where a party to a suit is present in court, he may be 
 called as a witness without the service of a subpoena upon 
 him.^ In other cases a reasonable time should be allowed to 
 enable the witness to prepare to attend court.^ Service of a 
 subpcena in the morning to attend in the afternoon of the 
 same day, has been held too short a notice ; * unless the per- 
 son, on being served, admits, either expressly or impliedly, 
 that the service is in time.® 
 
 (2) Habeas corpus ad testificandum. Where the person 
 desired as a witness is restrained of his liberty, e.g., impris- 
 oned, or in the naval or military service, the proper course is 
 to sue out a writ of habeas corpus ad testificandum; for 
 which purpose application ought to be made to the court or 
 to a judge, upon affidavit of the party applying, stating that 
 he is a material witness, and willing to attend. Upon this 
 application the court, in its discretion, will make a rule, or 
 the judge will grant his fiat for a writ which is then sued 
 out, signed, and sealed.*' 
 
 (3) Recognizance. Another method, sometimes adopted in 
 criminal cases, to secure the attendance of witnesses, espe- 
 cially such as cannot be trusted to appear voluntarily, is b}'' 
 compelling them to enter into recognizances to appear, or in 
 default thereof, committing them until the time of tlieir 
 examination in court.'^ 
 
 1 Chamberlain's Case, 4 Cow. (N. Bone u. Hillen, 1 Mill (S. C.) 107 ; 
 Y.)49. Seealsozn/™, §302, suirf. (3). Smith l\ Barger, 9 Yerg. (Tenn.) 
 
 2 Goodpaster u. Voris, 8 Iowa, 334, 322; Smith v. Wilbur, 35 Vt. 133; 
 where however, it is said that in such Neyland v. State, 13 Tex. App. 530. 
 
 a case the court cannot compel him 3 Hammond v. Stuart, 1 Str. 609. 
 
 to testify. And the court may re- < Barber v. Wood, 2 Moo. & B. 
 
 fuse to call him. Woodward v. Purdy, 172. 
 
 20 Ala. 379. See also, as to various ^ gge Maunsell o. Ainsworth, 8 
 
 points of practice relative to subpoe- Dowl. P. C. 869 ; Jackson v. Seager, 
 
 nas, and their service, lie Woodward, 2 Dowl. & L. 13. As to service on a 
 
 12 Bankr. Eeg. 297; Chicago &c. E. person present in court, see Doe d. 
 
 U. Co. i;. Dunning, 18 111. 494; State Jupp. v. Andrews, 2 Cowp. 845; 
 
 ■!;. Hopper, 71 Mo. 425; Yorks z;. Peck, Pitcher v. King, 2 Dowl. & L. 755. 
 
 31 Barb. (N. Y.) 350 ; People !•. Van And see further Bowles v. Johnson, 1 
 
 Wyck, 2 Cai. (N. Y.) 333 ; Anderson W. Bl. 30 ; Blaekburne v. Hargreave, 
 
 V. Johnson, 1 Sandf. (N. Y.) 713 ; 2 Lew. C. C. 259. 
 
 Icehour i;. Martin, Busb. (N. C.) L. 6 2 Phil. Ev. *823, and cases cited. 
 
 478; Neil ti. Childs, 10 Ired. (N. C.) See also Maxwell v. Revis, 11 Nev. 
 
 L. 195; Clark v. Boyd, 2 Ohio, 56; 213. 
 
 State V. Smith, 2 Bay (S. C.) 62; -' See United States v. Butler, 1 
 
§ 302.] PUNISHING DELINQUENTS. 517 
 
 (4) Subpoena duces tecum. If a witness lias in his posses- 
 sion any deeds or writings which are required at the trial, a 
 special clause must be inserted in the subpoena, called a duces 
 tecum, commanding him to bring them with him. When the 
 writings are in possession of the adverse party or his attor- 
 ney, notice should be given to produce them; and if, after 
 proof of a reasonable notice they are refused, secondary evi- 
 dence of the contents will be admitted.^ 
 
 § 302. Punishment of Witness for Refusal to attend. — (1) 
 Refusal to attend court. For a witness to disregard a subpoena 
 to attend court has always been considered a contempt of 
 the court issuing the subpoena,^ and in such cases attach- 
 ments will issue to compel attendance,^ even though the wit- 
 ness be a member of Congress, if he is not attending a session 
 or going to or returning from Congress.* Thus, the refusal 
 of a garnishee to appear to a summons executed, is a con- 
 tempt;^ and under a statute requiring the courts to cause to 
 appear before them mortgagors and all other persons who 
 have any knowledge of the demand due upon mortgages of 
 real estate, where it is sought to sell the equity of redemp- 
 tion therein, if the persons properly cited shall fail to appear 
 they may be brought into court and compelled to answer in 
 the same way that witnesses who are subpoenaed are brought 
 in.^ In such cases it need not appear, in order to make such 
 witness liable, that such misconduct was calculated to or did 
 
 Cranch, C. Ct. 422 ; Kx parte Shaw, monwealth v. Carter, 11 Pick. (Mass.) 
 
 61 Cal. 58 ; Bickley t-. Com., 2 J. J. 277 ; Burnham ;.. Morrissey, 14 Gray 
 
 Marsh. (Ky.) 572; State r. Grace, 18 (Mass.) 226; Wilson v. State, 57 Ind. 
 
 Minn. 398; State v. Zellers, 2 Hoist. 71; Bleecker v. Carroll, 2 Abb. (N. 
 
 (N.J.) 220; State v. Walsh, 3 New Y.) Pr. 82; State v. Trumbull, 1 
 
 Jersey Law Jour. 119 ; Means r. State, South. (N. J.) 1.S9; Woods r. De 
 
 10 Tex. App. 16. Piganiere, 1 Robt. (N. Y.) 607, 641 ; 
 
 1 Warren v. Warren, 1 Johns (N. Stephens ','. People, 19 N. Y. 549 ; 
 
 Y.) 340. As to the consequences of Icehour v. Martin, Busb. (N. C.) L. 
 
 disobedience of the subpoena duces te- 478 ; Pespublica v. Duane, 4 Yeatcs 
 
 cum, see infra, § 304. (Pa.) 347 ; Jackson v. Justices, &c., 1 
 
 ^ See Ex parte Humphrey, 2 Va. Cas. 314. 
 Blatchf . (U. S.) 228 ; Ex parte Judson, ^ Mitchell v. Maxwell, supra ; Green 
 
 3 Id. 89 ; Ex parte Eeebees, 2 Wall. v. State, stipra ; Commonwealth i . 
 
 Jr. (U. S.) 127 ; United States u. Carter, supra. 
 
 Moore, Wall. C. C. (U. S.) 23; In re * Respublica v. i)uane, 4 Yeates 
 
 Roelker, 1 Sprague (U. S.) 27C; (Pa.) 347. 
 
 Mitchell B.Maxwell, 2 Pla. 594; Green ^ Jackson v. Justices, &c., 1 Va. 
 
 V. State, 17 Pla. 669; Chicago &c. R. Cas. 314. 
 R. Co. V. Dunning, 18 111. 494 ; Com- ^ Mitchell v. Maxwell, 2 Pla. 594. 
 
518 ATTENDANCE AND COMPENSATION. [CHAP. XXVII. 
 
 impair, etc., the rights or remedies of the party complaining 
 thereof, as required in ordinary cases of contempt. ^ The 
 witness is bound to obey a subpoena directed to him, no mat- 
 ter by what means it comes to his hands ; ^ but where two 
 subpoenas were served the same day on a witness, requiring 
 his attendance at different places distant from each other, it 
 was held that he might make his election which he would 
 obey.^ A refusal to obey a subpoena issued by a federal court 
 is an offence against the federal government, within the 
 meaning of section 1014 of the Revised Statutes of the 
 United States ; * but the court will not, generally, award an 
 attachment against a witness residing in another district, 
 where he shows no disposition to treat the process of the 
 court with contempt.^ 
 
 (2) Rpfasal to attend before legislative hody, or committee, 
 or officer authorized to take testimony. In Massachusetts, it 
 is held that the refusal of a witness, duly notified or sum- 
 moned, or who has voluntarily appeared, to attend or testify 
 before the house of representatives or a committee of that 
 house, is a contempt of the authority of the house, for which 
 the house may cause him to be arrested and brought before 
 the hou.se.^ So it is held in several jurisdictions that the 
 refusal of a witness duly notified to attend before an exam- 
 iner,^ or master in chancery,^ or magistrate empowered to 
 take depositions,^ is a contempt. 
 
 (3) Necessity and sufficiency of service of subpoena, pay- 
 ment of fees, etc. The court will not, as a general rule, pun- 
 
 i Woods V. De Figaniere, 1 Robt. v. Swann, 4 Den. (N. Y.) 75) ; and in 
 
 (N. Y.) 607, 641. some cases even to prosecution by 
 
 ^ Cliicago &c. R. R. Co. v. Dun- indictment. Dralse u. State, 60 Ala. 
 
 ning, 18 III. 494. 62. See also Com. v. Reynolds, 14 
 
 3 Icehour i-. Martin, Busb. (N. C.) Gray (Mass.) 87. 
 L. 478. s Burnham ;;. Morissey, 14 Gray 
 
 * In re EUerbe, 2 McCrary (U. S.) (Mass.) 226. Compare Briggs v. Mat- 
 
 449. sell, 2 Abb. (N. Y.) Pr. 156 ; Matter 
 
 5 Ex parte Beebees, 2 Wall. Jr. of Pilsbury, 56 How. (N. Y.) Pr. 290 ; 
 
 (U. S.) 127. Matter of Dickinson, 58 Id. 260. 
 
 Non-attendance also makes the ' Commonwealth v. Newton, 1 
 
 delinquent witness liable to an action Grant (Pa.) Cas. 453. 
 for damages (Robinson v. Trull, 4 « Brockman v. Angler, 12 111. 277. 
 
 Cash. (Mass.) 249; Prentiss u. Web- » In re Jenckes, 6 R. I. 18. But 
 
 ster, 2 Dougl. (Mich.) 5; Connett v. it seems a board of supervisors cannot 
 
 Hamilton, 16 Mo. 44'2 ; I'asbrouck o. punish a witness who fails to appear 
 
 Baker, 10 Joims. (X. Y.) 248 ; West before them. Re Blue, 46 Mich. 268. 
 w.Tuttle, 11 Wend. (N. Y.) 639; Kurd 
 
§ 302.] PUNISHING DELINQUENTS. 519 
 
 isli a witness for non-attendance unless the subpoena was 
 strictly served, and the witness designed to contemn the 
 process and autliority of the court.^ So, under a statute 
 allowing a party to examine his adversary before trial, the 
 party to be examined cannot be punished for failure to 
 attend to be examined, unless the order prescribed by the 
 statute is served upon him.^ But the witness may, by his 
 own act, dispense with the legal form of serving a subpoena.^ 
 A witness is not liable to a forfeiture, who fails to attend on 
 a subpoena in which he is summoned to appear before the 
 grand jury; he should be summoned to appear before the 
 court, to give evidence to the grand jury.* Nor is a resident 
 of one State, while temporarily in another, if subpoenaed to 
 attend court as a witness in the latter, liable to amercement 
 for not attending, if he be out of the State when called out 
 on the subpoBna.^ In Tennessee, it is not necessary that the 
 witness should have been summoned in the county in which 
 he resided to incur the forfeiture for non-attendance. A 
 legal summons executed on him personally, or left at his 
 place of residence, is sufficient.^ 
 
 As a general rule, a witness will not be punished for con- 
 tempt in failing to attend on the trial of a civil action unless 
 his fees have been paid or tendered.'' And a party made a 
 witness by his adversary is as much entitled to fees, as a 
 condition precedent to creating a duty to attend, as a third 
 person.^ Where a person is summoned as a witness out of 
 the county in which he resides, he is not bound to attend 
 
 ^ State 0. Trumbull, 1 South. (N. court to allow the defendant to prove 
 
 J.) 139 ; United States o. Caldwell, 2 ' his case upon cross-examination of 
 
 Dall. (U. S.) .384. the plaintiff's witness, the defendant 
 
 2 N. Y. Code Civ. Pro. § 87.3 ; Tebo said that he should call the witness at 
 
 u. Baker, 10 Hun (N. Y.) 182 ; Loop the proper time, and the plaintiff said 
 
 V. Gould, 17 Id. 585. See also Hewlett that he had no objection to the witness 
 
 V. Crown, 1 Bosw. (N. Y.) 655. remaining. The next day the witness 
 
 2 Eeree v. Stronie, 1 Yeates (Pa.) could not be found when the defendant 
 
 30.S. called him. It appeared that no fee 
 
 * State V. Butler, 8 Yerg. (Tenn.) had been tendered him for the second 
 
 83. day, and that the defendant had not 
 
 ^ Kinzey u. King, 6 Ired. (N. C.) subpoenaed him. It was held that the 
 
 L. 76. defendant could not have an attach- 
 
 ^ Smith r. Barger, 9 Yerg. (Tenn.) ment ag.ainst the witness. S. P., Mat- 
 
 322. tocks 1-. Wheaton, 10 Vt. 493. Contra, 
 
 ' Ogden c. Gibbons, 2 South. (N. Smith v. Barger, 9 Yerg. (Tenn.) 322. 
 
 J.) 518; Bcaulien r. Parsons. 2 Minn. ^ Hewlett !.•. Brown, 1 Bosw. (N, Y.) 
 
 37, where, upon the refusal of tlie 655. 
 
520 ATTENDANCE AND COMPENSATION. [CHAP. XXVII. 
 
 unless his travelling expenses of going to and returning from 
 the place to which he is summoned are paid or tendered to 
 him, or payment thereof waived by him.^ In prosecutions 
 for felony, witnesses for the defence niust attend, whether 
 their fees have been paid or tendered or not ; ^ and in Wis- 
 consin, this rule applies to all criminal cases, misdemeanors 
 as well as felonies.^ 
 
 Before an auditor, neither party is entitled to fees as a wit- 
 ness, whether testifying in his own favor or for his adver- 
 sary ; and neither party can properly refuse to testify when 
 interrogated by the auditor, or by counsel, by permission of 
 the auditor, because his testimony will favor the adverse 
 party, or because his fees have not been paid.* 
 
 (4) Excuses for non-attendance. The general rule is that 
 a witness duly subpoenaed is bound to make extraordinary 
 efforts to attend; nothing but extreme poverty, or sickness 
 of himself or family, will excuse him.^ Thus, the fact that 
 he deems his testimony immaterial will not excuse his non- 
 attendance,^ and the absence of a female witness will not be 
 excused by the difSculty of bringing her to the court-house 
 on account of lameness, provided her gei\eral health is good.''' 
 But no witness is bound to endanger his life by attendance 
 at court.^ And where it appeared that witnesses, against 
 whom an attachment had issued for disobedience to a sub- 
 poena, had been so much indisposed as to be incapable of 
 attending, they were discharged, and the costs of the attach- 
 ment directed to 'abide the event of the suit.^ So, serious 
 illness of a witness' wife is a "sufficient cause for his failure 
 to attend," within tlie statute.^" In his efforts to comply with 
 the subpoena, a witness is entitled to reasonable time for 
 travel, availing himself of the usual modes of conveyance. 
 He cannot be required to travel on Sunday, nor can he limit 
 
 ^ Thurnian u. Virgin, 18 B. Mon. ' Pipher v. Lodge, 16 Serg. & R. 
 
 (Ky.) 785. (Pa.) 214. 
 
 2 Ex parte Chamberlain, 4 Cow. 8 Jackson v. Perkins, 2 Wend. (N. 
 (N. Y.) 49. y.) 308. 
 
 3 West V. State, 1 Wis. 209. " Butcher v. Coats, 1 Ball. (U. S.) 
 * Whitney v. Pierce, 40 N. H. 114. 340. See also Cutler v. State, 42 Ind. 
 5 People !■. Davis, 15 Wend. (N. Y.) 244 ; State v. Hatfield, 72 Mo. 518. 
 
 602. " Tenn. Code, § 3822; Foster v. 
 
 « Bonesteel r. Lynde, 8 How. (N. McDonald, 12 Heisk. (Tenn.) 619 ; 
 
 Y.) Pr. 226. Slaughter v. Birdwell, 1 Head (Tenn.) 
 
 341. 
 
§ 302.] PUNISHING DELINQUENTS. 521 
 
 his travel to thirty miles per day ; ^ and where the service of 
 the subpoena was so long delayed as not to give the witness 
 reasonable time to prepare to attend the trial, his non-attend- 
 ance will be excused on comparatively slight grounds, 
 although the shortness of the notice is not, per se, an ex- 
 cuse.^ If his excuse is a sufficient one he may excuse him- 
 self upon his own oath.^ The inability of the witness to 
 attend court must be decided in reference to the modes of 
 travelling which are in use in the community. If there are 
 modes not impracticable, and it does not appear but that 
 they were in the power of the party summoned, his non-at- 
 tendance cannot be attributed to inability.* Where the wit- 
 ness resides more than one hundred miles from a court of the 
 United States, he is not compelled to attend on a subpoena, 
 but his deposition may be taken, and his residence is proved, 
 prima facie, by the certificate of the magistrate who takes 
 it.^ And although there is an act of Congress which allows 
 subpoenas ad testificandum to run from the circuit courts into 
 districts not their own, yet where the witness who has been 
 thus subpoenaed shows no disposition to treat the process of 
 the court with contempt, the issuing of an attachment is 
 always matter of discretion with the court. And where it 
 would be oppressive, or dangerous to the health of the wit- 
 ness, or where any strong reason of business or famih^ exists 
 against his compulsory absence from home, the court will not 
 compel his attendance, but Avill either postpone the cause 
 or have his dejoosition taken. ^ So, also, the object of an 
 attachment against a witness for contempt being to punish 
 him, not to redress the party injured, if a party gives his 
 witness leave of absence, and he departs, he is not in con- 
 tempt, and, if attached, will be discharged at the cost of the 
 party calling him.'' 
 
 1 Wilkie V. Chadvvick, 13 Wend, has issued, arrives before service of 
 
 (N. Y.) 49. the process, and makes «, reasonable 
 
 ■■'Chalmers ;;. Melville, 1 E. D. excuse, the court will comitermand the 
 
 Smith (N. Y.) 502. attachment on payment of the cost of 
 
 8 Livingstone !). Lucas, Al.T. 147. issuing it. United States r. ScholfieUl, 
 
 4 EUer u. Roberts, Ircd. (N. C.) 1 Cranch C. Ct. 130. 
 
 L. 11. Ex parte Beebees, 2 "Wall. Jr. 
 
 5 Patapsco Ins. Co. v. Southgate, 5 (U. S.) 127. 
 
 Pet. (U. S.) 004. 7 State c. Xixon, Wright (Ohio) 
 
 In an early case it was held that if 763. 
 a witness, against whom an attachment. So, where a witness is not requested 
 
522 ATTENDANCE AND COMPENSATION. [CHAP. XXVn. 
 
 § 303. Punishment for Refusal to be sworn or to testify. — 
 (1) Refusal to he sworn. In many jnrisdictions there are 
 statutory provisions enabling persons having conscientious 
 scruples against the taking of an oath, to solemnly afBrm 
 that they will tell the truth upon the witness-stand. Quak- 
 ers, among others, are generally allowed to qualify them- 
 selves to testify in this manner. But it has been held in 
 Massachusetts that one who was not a Quaker could not 
 claim this privilege.^ In another case, a Jew, who refused 
 to be sworn as a witness in a cause tried on a Saturday, 
 because it was his Sabbath, was fined by the court.^ In no 
 case can a witness himself object to being sworn, or, when 
 sworn, to answer questions, on the ground that his testimony 
 or answer will subject him to a civil suit.^ So, also, where 
 complaint is made that an offence has been committed, the 
 magistrate may compel the attendance of witnesses; and if 
 any witness, on being brought before the magistrate, refuses 
 to be sworn and to testify, he may be adjudged guilty of a 
 criminal contempt, and punished by imprisonment.* 
 
 (2) Refusal to testify, generally. There can be no doubt 
 that the refusal of a witness to testify at all, or to answer 
 particular questions, pertinent to the issue, put to him either 
 in a proceeding before the court itself or before a subordi- 
 nate officer duly empowered by the court to take his deposi- 
 tion or conduct his examination, is a contempt of such court, 
 provided always the court have jurisdiction of the contro- 
 versy or proceeding in which the witness is required to give 
 his evidence.^ If the witness be competent, and the question 
 pertinent to the issue, he should be compelled to answer.^ If 
 he perseveres in silence, when questioned, he may be com- 
 
 to remain for further cross-examina- ^ Gorham v. Carroll, 3 Litt. (Ky.) 
 
 tion, he is not in contempt for failure 221 ; Black v. Coorgh, Id. 226. 
 
 to do so (Hook's Estate, 13 Phil. (Pa.) * People v. Hicks, 15 Barb. (N. Y.) 
 
 390) ; and a nonsuit, though set aside 153. Compare Re Morton, 10 Midi. 
 
 at the same term at which it is taken, 208. 
 
 operates as a discharge of the wit- ^ Matter of Allen, 13 Blatchf. (U. 
 
 nesses in attendance. Cochran i-. S.) 271; Whitcomb's case, 120 Mass. 
 
 Brown, 1 Humph. (Tenn.) 329. 118, 121 ;'La Fontaine v. Underwriters, 
 
 1 United States v. Coolidge, 2 Gall. 83 N. C. 132 ; Stuart v. Allen, -15 Wis. 
 (U. S.) 364. 158, 101; Eex v. Almon, Wilm. 24.^, 
 
 2 Stansbury v. Marks, 2 Dall. (U. 269; Ex parte Doll, 7 Phil. (Pa.) 595. 
 S.) 213. England v. Wiekware, 4 J. J. 
 
 Marsh. (Ky.) 530. 
 
§ 303.] PUNISHING DELINQUENTS. 528 
 
 mitted for contempt, and confined until he does answer.^ 
 Such refusal is a contempt, no matter how respectfully and 
 deferentially it may be made.^ When sworn in chief, the 
 witness is bound to state all the facts within his knowledge 
 that are applicable to the case, and that can be proved by 
 parol, and it can make no difference whether such testimony 
 is given in answer to the interrogatories of the party against 
 whom it operates or not.^ 
 
 If, on the other hand, there is an entire want of jurisdic- 
 tion on the part of the court or officer before whom he is 
 called upon to testify, he may safely refuse to testify, such 
 refusal being simply the disobedience of the unlawful order 
 of a private person.* But this right of a mere witness to 
 raise the question of jurisdiction in this manner has not met 
 with the favor of the judges, and in several jurisdictions is 
 virtually denied.^ A fortiori, a witness cannot be permitted 
 to refuse to answer a question on the ground that it is irrele- 
 vant. To hold that a witness could decide for himself upon 
 the relevancy of a question, against the opinion of the judge 
 presiding, or the officer taking the deposition, would be sub- 
 versive of all order in judicial proceedings.^ But in Grihon 
 V. Albert^ it is said that a defendant may refuse to answer an 
 illegal or improper question, upon an examination, under an 
 order of reference ; but if he refuses to answer a proper ques- 
 tion he may be punished. 
 
 In later cases, however, it is held that the fact that the 
 questions were improper furnishes no reason for impeaching 
 the commitment of the witness for refusing to answer them.^ 
 The lawfulness or propriety of the questions are for the court 
 to decide.^ But where the witness demurs to a question, the 
 question will be considered as waived, unless tlie party by 
 whom it is put insists upon an answer, and takes the proper 
 steps to have the demurrer disposed of.-'" In Indiana it would 
 
 ' Lott V. Sandifer, 2 Eep. Con. Ct. « Ex parte McKee, 18 Mo. 600. 
 
 (S. C.) 167. ■ 7 Paige (N. Y.) 278. See also 
 
 2 Holman v. Austin, 34 Tex. 668. Holman v. Mayor, 34 Tex. 668, 673. 
 
 8 Roberts v. Garen, 2 111. 396. 8 People v. Cassels, 5 Hill (N. T.) 
 
 4 Matter of Morton, 10 Mich. 208; 165; People v. Sheriff, 7 Abb. (N. Y.) 
 
 Matter of Hall, Id. 210 ; Holman v. Pr. 96. 
 
 Austin, 34 Tex. 668; Ex parte Peck, » Bradley v. Yeazie, 47 Mo. 85; 
 
 3 Blatclif. (U. S.) 113. Forbes v. Meeker, 3 Edw. (X. Y ) 4C2. 
 
 * In re Abeles, 12 Kan. 451; Com- i' Mowatt f. Graliam, 1 Edw. (N. 
 
 monwealth v. Roberts, 2 Clark (Pa.) Y.) 13. Compare Winder v. Diffen- 
 
 L. J. 340. derffer, 2 Bland (Md.) 166. 
 
524 ATTE^"DANCE AND COMPENSATION. [CHAP. XXVII. 
 
 seem that expert witnesses may refuse to testify until the 
 payment of a professional fee ; ^ but this is not deemed to 
 be the law in other jurisdictions. 
 
 (3) Refusal to testify lefore grand jury. The grand jury 
 being merely an appendage of the court,^ the refusal by a 
 witness to answer questions put by them is a contempt of the 
 cotirt by whose order the grand jury was impanelled.^ In 
 Alabama, however, a witness, summoned before the grand 
 jury to give evidence as to violations of the laws of the State, 
 who declines to answer, may be proceeded against by indict- 
 ment, but cannot be fined for a contempt.* 
 
 (4) Refusal to testify before legislative body. The decis- 
 ions as to the punishability of a witness summoned before a 
 legislative body or committee, who refuses to answer ques- 
 tions put to him by such body or committee, are somewhat 
 in conflict.^ In Massachusetts it is laid down that a wilful 
 and unjustifiable refusal by a witness legally brought before 
 the house of representatives, to testify before the house or 
 one of its committees, is " disrespect to the house by con- 
 temptuous behavior in its presence," within the meaning of 
 the constitution of the State, for which he may be imprisoned 
 by order of the house for a term not exceeding thirty days." 
 In a very recent case, decided by the General Term of the 
 Supreme Court of New York," the relator was subpoenaed to 
 appear and testify as a witness before a committee of the 
 senate. Acting under the advice of counsel, he declined to 
 
 1 Buchraan r. State, 59 Ind. 1 ; Dill People v. Fancher, 4 Tliomp. & C. 
 V. State, Id. 15, 23. (N. Y.) 476. 
 
 2 United States v. Hill, 1 Brock. •» .State v. Blocker, 14 Ala. 450. 
 (U. S.) 156; Denning v. State, 22 Ark. = ggp sj,^,,.,,^ §§ 2, GO. 
 
 131, 132; Cherry v. State, 6 Fla. 67'J, "^ Mass. Const, ch. 1, § ?,, art. 10; 
 
 085 ; Heard v. Pierce, 8 Cusli. (Mass.) Burnham ;•. Morissey, 14 Gray ( JIass.) 
 
 ■338, 339; Commonwealth u. Bannon, 226. S. P., in Wisconsin, Falvey r. 
 
 97 Mass. 214, 219 ; People v. Naugton, Massing, 7 Wis. 030. Compare Briggs 
 
 7 Abb. (N. Y.) Pp., n. s., 421 ; Lewis v. Matsell, 2 Abb. (N. Y.) Pr. foC, 
 
 V. Wake County, 74 N. C. 194, 198; where the witness attended pursuant 
 
 Commonwealth u. Crane, 8 Pa. L. J. to the subpoena and submitted to be 
 
 449, 450. sworn, and then stated that he declined, 
 
 United States v. Canton, 1 Cranch generally, to answer any questions. 
 
 C. C. 150; Lockwood i. State, 1 Ind 
 161; Ex parte Maulsby, 13 Md. 025: 
 Heard v. Pierce, 8 Cush. (Mass.) 338 : 
 Commonwealth v. Bannon, 97 Mass 
 214; People v. Kelly, 24 N. Y. 74; 
 
 and none were put to him by the com- 
 mittee, and an attachment was re- 
 fused. 
 
 ' People, e.r rel. McDonald, v. 
 Keeler, 29 Alb. L. J. 511 ; s. c, 32 Hun 
 (N. Y.) 503; 66 How. Pr. 487. 
 
§ 303.] PUNISHINa DELINQUENTS. 525 
 
 answer sundry questions, and retired from the presence of 
 tlie committee, and refused to be further examined. There- 
 after, he was adjudged to be in contempt by the senate ; a 
 warrant was issued for his arrest and he was committed to 
 jail. The court held, on habeas corpus, first, that the relator 
 was not bound to answer the questions put to him, and that 
 he was justified in withdrawing when the right to have coun- 
 sel was refused ; second, that in the case at bar the senate 
 had neither inherent nor conferred power to punish the rela- 
 tor as for contempt; his imprisonment was therefore illegal, 
 and he was entitled to his discharge. The principle on which 
 this case was based was, that except when engaged in the 
 judicial functions authorized by the constitution, neither 
 branch of the legislature has any power to punish, as for 
 contempt, a refusal by a witness to answer questions put to 
 him. 
 
 (5) Refusal to testify on ground of interest. At common 
 law, the plaintiff upon the record, or the party in interest for 
 whose benefit the suit is brought, cannot, unless he waive his 
 privilege, be compelled to give testimony for the defendant.^ 
 So, also, a party in interest, in a suit in another State, cannot 
 be compelled to testify before a magistrate as a witness in 
 that suit.^ But a witness wlio has voluntarily become inter- 
 ested in the matter in dispute, after his knowledge thereof, 
 and before suit was commenced, may be compelled to testify.'^ 
 And if a witness in court refuses to answer questions touch- 
 ing his interest in the cause, he may be committed as for a 
 contempt, and closely confined, without bail or mainprise, till 
 he purges the contempt and answers.* Thus, on the trial of 
 an indictment, the defendant has a right to ask a witness 
 whether any person, on behalf of the government, has made 
 to the witness any offer of reward, in relation to the testi- 
 mony which he should give in a certain class of cases com- 
 prehending the case on trial.^ So, also, a cashier of a 
 
 1 Owings V. Low, 5 Gill & J. (Md.) pare Simons v. Payne, 2 Root (Conn.) 
 1.S4 ; Maunin v. Lamb, 7 Cow. (N. Y.) 406. 
 
 174. Ccm/ra, Conover I'. Bell, 6 Monr. * Lott t. Burrill, 2 Mill (S. C.) 
 
 (Ky.) 157; Stevens v. Whitcomb, 16 Const. 167. 
 
 Vt. 121 ; Garey v. Frost, 5 Ala. 636. 5 Commonwealth v. Sacket, 22 
 
 2 People V. Irving, 1 Wend. (N. Y.) Pick. (Mass.) 394. Compare Hugely 
 20. v. Holstein, 35 Ga. 271; French v. 
 
 3 Tatum V. Lofton, Cooke (Tenn.) Price, 24 Pick. (Mass.) 13. 
 115; Patton v. Brown, Id. 126. Com- 
 
526 ATTENDANCE AND COMPENSATION. [CHAP. XXVII. 
 
 corporation is not protected from testifying in a case in rela- 
 tion to dealings of the corporation with a party to the suit.-' 
 And in supplementary proceedings, after judgment, a witness 
 is bound to answer fully any question tending to disclose any 
 property of the debtor, whether held by him or by a fraudu- 
 lent transferee who holds iu fraud of creditoi's;^ and the 
 judgment debtor's wife may be required to disclose whether 
 she has property of her husband under her control, and may 
 be attached as for a contempt for refusing to answer.^ 
 
 § 304. Fumshment for Disobedience of Subpoena duces 
 tecum. — The ofSce of the writ of subpcena duces tecum ex- 
 tends only to compel the bringing into court, by a party or 
 witness, of books and papers of which he has control, and an 
 inspection of which is deemed to be essential to the proper 
 determination of the issues presented for trial. The writ has 
 no effect upon the question of the admissibility of books and 
 papers so brought in, as evidence in the case.* 
 
 Nor does it follow from the mere fact that the witness 
 has brought the documents into the court-room, in response 
 to the requirement of the writ, that he must produce them 
 in evidence;^ that is a matter lying within the discretion of 
 the court ; ^ and while, in proper cases, the court will not 
 hesitate to compel their production,^ yet if the witness has a 
 lawful or reasonable excuse for withholding the documentary 
 evidence called for in the writ, he will not be compelled to 
 produce it; but, in such a case, of the lawfulness or reasona- 
 bleness of the excuse, the court, and not the witness, is to 
 judge. ^ Thus, the court will not, through the agency of this 
 
 1 Winder v. DiffenderfEer, 2 Bland 680 ; Central Nat. Bank r. Arthur, 2 
 (Md.) 166. Sweeney (N. Y.) 194. 
 
 2 Lathrop v. Clapp, 40 N. Y. 328. s Bull v. Loveland, 10 Pick. (Mass.) 
 8 O'Brien's petition, 24 Wis. 547. 9 ; Chaplain v. Briscoe, 5 Sm. & M. 
 
 4 Campbell ;;. Dalhousie, L. E. 1 (Miss.) 198; Lane r. Colo, 12 Barb. 
 Sch. App. 496 ; Bonesteel v. Lynde, 8 (N. Y.) 080. That the papers are pri- 
 How. (N. Y.) Pr. 226, 233; Mott v. vate is not a good excuse for not pro- 
 Consumer's Ice Co., 52 How. (N. Y.) ducing them. Burnham v. Morissey, 
 Pr. 244; Shermans. Barrett, IMcMuU. 14 Gray (Mass.) 226; Be Dunn, 9 Mo. 
 (S. C.) 147. App. 255. In Bonesteel c. Lynde, 
 
 5 King !>. Dixon,3 Burr. 1687. See cited supra, the plaintifif, learning tliat 
 also Campbell v. Johnston, 3 Del. Ch. defendant had subpoenaed a witness to 
 94. bring certain papers, obtained posses- 
 
 ^ Bonesteel v. Lynde, supra; .4mey sion of them from the witness in order 
 
 V. Long, 9 East, 475, 485. to defeat the subpoena. It was held 
 
 ' Lane v. Cole, 12 Barb. (N. Y.) that his neglect to produce them on 
 
§ 305.] 
 
 PRIVILEGES OF ■WITNESSES. 
 
 527 
 
 process, compel a party to produce papers which would strip 
 him of his title ; ^ and in all cases it is a question for the 
 consideration of the judge at the trial whether, upon the 
 principles of reason and equity, production should be 
 required under a subpcena.^ In Sudlow v. Knox^ it was held 
 not to be a contempt for a party to refuse to leave his books 
 with a referee, under an order requiring him to produce them 
 before such referee. 
 
 As to the i^se of the writ to compel the production of tele- 
 graphic dispatches, see the cases cited below.* 
 
 § 305. Privileges of Witnesses in Attendance at Court. — In 
 this place we propose to consider the exemption of a witness, 
 while attending court as such, from the service of civil 
 process, and from arrest on such process. The privilege to 
 refuse to answer on the grounds of self-crimination, tendency 
 of questions to create pecuniary liability, loss of character, 
 etc., and the rules relative to privileged communications, 
 have been already discussed.^ 
 
 the trial, pursuant to defendant's no- 
 tice requiring liim to do so, was a 
 contempt. Under sucii circumstances, 
 a denial of knowledge as to where the 
 papers are, is no excuse. 
 
 1 Miles V. Dawson, 1 Esp. Cas. 405. 
 S. P., Camphell u. Dalhousie, L. R. 1 
 Sch. App. 462. 
 
 2 Amey v. Long, 9 East, 475, 485. 
 See also Corson u. Dubois, 1 Holt N. 
 P. 87. 
 
 3 7 Abb. (N. Y.) Pr., n. s., 411. 
 
 A subpoena duces tecum cannot issue 
 to a public officer to bring original 
 papers into court when certified copies 
 would be evidence. Corbett v. Gibson, 
 16 Blatchf. (U. S.) 334; Delaney v. 
 Regulators, &c., 1 Yeates (Pa.) 403. 
 And, generally, oflcers of corporations 
 are not bound to produce documents 
 belonging to the corporation. But see 
 Central &c. R. R. Co. u. Twenty-third 
 Si B. R. Co., 53 How. (N. Y.) Pr. 45; 
 Boorman v. Atlantic &c. R. R. Co., 1 7 
 Hun (N. Y.) 555. Thus, a clerk in a 
 bank is not bound, on a subpcena duces 
 tecum, to produce the books of the bank, 
 they not being under his control. 
 Bank of Utica v. Hilliard, 5 Cow. (N. 
 Y.) 153. But a joint stock company 
 
 is not sufth a corporation as to entitle 
 one of its officers to refuse to produce 
 documents in his custody when re- 
 quired by subpoena. Woods v. De 
 Figaniere, 1 Robt. (N. Y.) 659. So, 
 the clerk of an executive council 
 cannot be attached for disobeying a 
 subpoena duces tecum commanding him 
 to bring into court a paper submitted 
 to the council for the purpose of en- 
 abling it to perform its executive 
 functions, and filed among its papers. 
 The clerk ought not to take such 
 paper from the files without the order 
 of the council. Morris v. Creel, 2 Va. 
 Cas. 49. Nor can such a writ be 
 issued to the printer of a newspaper, 
 to produce his papers containing the 
 advertisements of county commission- 
 ers for the sale of unseated lands for 
 taxes. Shippen v. Weils, 2 Yeates 
 (Pa.) 260. Nor to a witness, not a 
 party, to compel him to bring before 
 the court patterns for a stove. Re 
 Shepard, 18 Blatchf. (U. S.) 225. 
 
 « United States v. Babcock, 3 Dill. 
 (U. S.) 566 ; United States i'. Hunter 
 15 Fed. Rep. 712 ; Henisler v. Freed- 
 man, 2 Pars. (Pa.) Sel. Cas. 274. 
 
 6 Supra, Chaps. XXI-XXIII. 
 
628 
 
 ATTEiTDANCE AND COMPENSATION. [CHAP. XXVII. 
 
 The general rule is, that witnesses, as well as the parties in 
 a suit, are protected by courts of justice, and privileged from 
 arrest on civil process, during the necessary time consumed 
 by them in going to the jDlace where their attendance is 
 required, in staj-ing there for the purpose of such attend- 
 ance, and in returning thence. ^ And, in ordinary cases, 
 it is not necessary for the protection of a witness, that he 
 should have been served with a subpoena, if, upon application 
 to him, he consented to attend without one.^ A reasona- 
 ble time is allowed to the witness for going and returning ; 
 and in making this allowance the courts are disposed to be 
 liberal.^ 
 
 But the privilege does not extend to arrest upon criminal 
 process, or quasi criminal process,'* nor is a witness privi- 
 leged from being arrested by his bail : the bail may take him, 
 after he has finished his evidence, for the purpose of surren- 
 dering him.^ 
 
 1 SLTving process not bailable, is 
 not iin arrest within the rule. It is 
 like a summons. Legrand y.^Bedinger, 
 4 Mon. (Ky.) 539. An arrest on at- 
 tachment to compel payment of costs, 
 is an arrest on civil process within the 
 rule. But whether an arrest on an 
 attachment where the court might iine 
 and imprison be so? Quaere. Snelling 
 u. AVatrous, 2 Paige (N. Y.) 314. 
 
 2 Arding v. Flower, 8 T. R. 536; 
 Walpole V. Alexander, 3 Dougl. 45; 
 United States v. Edmi, 9 S. & E. (Pa.) 
 147; Norris K. Beach, 2 Johns. (N. Y.) 
 294 ; Sanford v. Chase, 3 Cow. (N. Y.) 
 381. But see also McNiel's Case, 6 
 Mass. 264 ; Rogers v. Bullock, 2 Penn. 
 (N. J.) 516. 
 
 8 2 W. Bl. 1113; Hatch v. Blisset, 
 Gilb. Ca.308; cit. 2 Str. 986; 13 East, 
 16, n. a. See also Tidd Pr. 195, and 
 Strong V. Dickenson, 1 Mees. & W. 
 493. 
 
 Tlie privilege does not extend 
 throughout the term at which the 
 cause is marked for trial, nor will it 
 protect the witness while engaged in 
 transacting his private business, after 
 he is discharged from the obligation 
 of his subpoena. Smyth v. Banks, 4 
 Dall. (U. S.) .'!29. But he is protected 
 while at his lodgings, as well as while 
 
 going to and returning from court. 
 Thus, a, citizen of New York, who, 
 wliile attending the Circuit Court of 
 the United States in Philadelphia as a 
 party, was subpoenaed to attend the 
 same court as a witness in another 
 cause, and after the service of the sub- 
 poana, was arrested at his lodgings on 
 ca, sa. issued out of the Supreme Court 
 of Pennsylvania, was immediately dis- 
 charged by the Circuit Court. Hurst's 
 Case, 4 Dall. (U. S.) 387. The party 
 (of Beckenham in Kent) attended in 
 London, and lingered two hours after 
 he left court, and after he had called 
 at several places in Westminster in a 
 direction opposite to his residence ; 
 but when arrested, he had "just crossed 
 London Bridge in a direction towards 
 home. The court said that the delay 
 might, for aught that was shown, have 
 been devoted to refreshment; and it 
 was not sworn by the plaintiff, on 
 whom the onus lay, positively, that the 
 calls, at which he was not present, 
 might not have been before the party 
 attended the court. Selby v. Hills, 8 
 Bing. 166. 
 
 * In re Douglas, 3 Q. B. 837. 
 
 ^ Ex parte Lyne, 3 Stark, 132. S. 
 P., Marshall v. Carhart, 20 Ga. 419. 
 
§ 305.] PRIVIIiBGES OF WITNESSES. 529 
 
 The fact that the witness comes from another State does 
 not deprive him of his privilege from arrest. If his privilege 
 be violated, he will be discharged absolutely, without even 
 filing common bail.^ In New York, such a witness is privi- 
 leged from the service of any process for the commencement 
 of a civil action against him.^ But the privilege of a witness 
 attending before Congress, or any of its committees, does not 
 extend to freedom from the service of a simple summons, 
 but only from arrest.^ 
 
 To prevent a witness from attending court,* or serving 
 him with summons or other process in the immediate or con- 
 structive presence of the court upon which he is in attend- 
 ance,^ is a contempt of coiu't, and punishable as such; and so 
 is the spiriting away of a witness,^ or any other violation of 
 his privilege.'^ 
 
 1 Sanford v. Chase, 3 Cow. (N. Y.) * Com. r. Feely, 2 Va. Cas. 1. 
 381; Jones !;. Kreauss, 4 Stew. (X. J.) ^ Cole v. Hawkins, Andr. 275; 
 211. Miles V. McCuUough, 1 Binn. (Pa.) 
 
 2 Person v. Grier, 66 N. Y. 124; 77. 
 
 Seaver u. Robinson, 3 Duer. (N. Y.) ^ Hasket v. State, 51 Ind. 176. 
 
 622 ; Grafton v. Weeks, 7 Daly (N. Y.) ' Bridges v. Sheldon, 18 Blatchf . 
 
 523. (U. S.) 507. See also 1 Burr's Trial, 
 
 ' Wilder v. Welsh, 1 MacArth. 352. 
 (D. C.) 566. 
 
CHAPTER XXVIII. 
 
 COMPENSATION OF WITNESSES. 
 
 § SOO. Of Ordinary Witnesses. 
 § 307. Of Experts. 
 
 § 306. Of Ordinary Witnesses. — We have already Seen 
 that the prepayment of fees is a prerequisite to the right to 
 compel the attendance of a witness or punish him for failure 
 to attend. 1 The subjects of the amount of fees to which a 
 witness who obeys the subpoena is entitled for attending; 
 for his travelling expenses in coming and going; for his dis- 
 bursements while in attendance ; and many other matters 
 connected with these, are regulated by statute in the several 
 jurisdictions, and the decisions are, for the most part, merely 
 constructions of the provisions of such local statutes. Any 
 attempt to extract from them principles of general applica- 
 tion would be next to futile, owing to the difference in char- 
 acter of the statutory provisions, but the cases have been 
 carefully collated, and will be found cited below, arranged 
 according to their particular subject-matter, and in the 
 alphabetic order of the states.^ 
 
 1 Supra § 302, subd. 3. 7 Tex. 466 ; Sapp v. King (Tex.) 1 
 
 2 Right to fees, generally. Russell;;. S. W. Rep. 466. 
 
 Ashley, Hempst (Ark.) 546 ; Dodge «. Attendance fee. Leigh f. Hodges. 4 
 
 Stiles, 26 Conn. 463 ; Angell v. Union 111. 15 ; Re Thomas (Kan.) 1 Dill. 
 
 County, 8 Bradw. (111.) 244; Ellison (U. S.) 420; Brown v. Moore, 3 J. J. 
 
 V. Stevenson, 6 T. B. Mon. (Ky.) 271 ; Marsh. (Ky.) 306 ; Kennedy v. Wright, 
 
 Hutchens v. Eden, 3 Har, & M. (Md.) 34 Me. 351 ; Ogdcn v. Gibbons, 2 South 
 
 101; Farmers. Storer, 11 Pick. (Mass.) (N.J.) 518; Willink v. Reekie, 19 
 
 241; Mathesw. Bennett, 21 N.H. 204; Wend. (N. Y.) 82; Anonymous, 3 
 
 Hurd V. Fogg, 22 N. H. 98 ; Ford v. Hill (N. Y.) 457 ; Re Corwin, 6 Abb. 
 
 Monroe, 6 How. (N. Y.) Pr. 204 ; De (N. Y.) N. Cas. 437 ; Carpenter v. 
 
 Benneville v. De Benneville, 1 Binn. Taylor, Term. Rep. (N". C.) 265 ; 
 
 (Pa.) 46 ; Lagrosse v. Curran, 10 Phil. Holden v. Shore, 1 R. I. 287 ; Barton 
 
 (Pa.) 140; Price v. McGee, 1 Brev. v. Bird, 1 Overt. (Tenn.) 66; Hop- 
 
 (S. C.) 455; Rice u. Palmer, 2 Bail, kins v. Waterhouse, 2 Yerg. (Tenn.) 
 
 (S. C.) 117 ; Taylor v. M'Mahan, Id. 230; Hodges v. Nance, 1 Swan (Tenn.) 
 
 131 ; Johnson v. Wideman, 1 Cheves 57 ; Albright v. Corley, 54 Tex. 372. 
 (S. C.) 26 ; Gray u. Alexander, 7 Mileage, or travel fee. Anonymous, 
 
 Humph. (Tenn.) 16; Davis ;.. State, 5 Blatchf. (U. S.) 134; Anderson r. 
 
 3 Lea (Tenn.) 376 ; Hardy v. Do Leon, Moe, 1 Abb. (U. S.) 299 ; The Sunny- 
 
§ 307.] COMl^ENSATION OF WITNESSES. 531 
 
 § 307. Of Experts. — As a general rule witnesses are not 
 
 side, 5 Ben. (U. S.) 162; The Leo, Id. 
 486 ; Dutcher v. Justices, &c., 38 Ga. 
 214; Meffert v. Dubuque &o. E. li. 
 Co., 34 Iowa, 430 ; Lyon County Com- 
 m'rs V. Chase, 24 Kan. 774 ; Union 
 Pacific R'y Co. v. Harris, 29 Kan. 275 ; 
 Tlmrman v. Virgin, 18 B. Mon. (Ky.) 
 785; Kingfield v. Pullen, 54 Me. 398; 
 Melvin v. "Whiting, 13 Picli. (Mass.) 
 184; Wilson v. Knox, 12 N. H. 347; 
 Norris v. Hassler, 8 New Jersey Law 
 J. 98 ; Jacltson v. Scott, 6 Johns. 
 (N. Y.) 330 ; Jaclison v. Hoagland, 1 
 Wend. (N. Y.) 69 ; Bank of Niagara 
 V. Austin, 6 Id. 548; Lamb v. Coe, 19 
 Id. 127; Ehle v. Bingham, 4 Hill 
 (N. Y.) 595 ; Taaks v. Schmidt, 25 
 How. (N. Y.) Pr. 340 ; Crawford v. 
 Abraham, 2 Oreg. 165; Johnson v. 
 A. & N. P. R. R. Co., 1 Pa. County 
 Ct. Rep. 10 ; Speigner v. Cooner, 9 
 Rich. (S. C.) L. 120; Albany v. Derby, 
 30 Vt. 718. 
 
 Fee for continued attendance. Whip- 
 ple V. Cumberland Cotton Co., 3 Story 
 (U. S.) 84 ; Schott v. Benson, 1 Blatchf . 
 (U. S.) 564; Hathaway v. Roach, 2 
 Woodb. &.U.63; Floyd County Com- 
 m'rs V. Black, 65 Ga. 384; Gunnison 
 V. Gunnison. 41 N. H. 121 ; Bliss u. 
 Brainard, 42 N". H. 255; Nichols u. 
 Doty, 3 Cow. (N. Y.) 352; Titus v. 
 Bullen, 6 Wend. (N. Y.) 562 ; Rogers 
 V. Rogers, 2 Paige (N. Y.) 458; Vence 
 !). Speir, 18 How. (N. Y.) Pr. 168; 
 Muscott V. Runge, 27 Id. 85 ; Thomp- 
 son V. Hodges, 3 Hawks (N. C.) 318 ; 
 Carter v. Wood, 11 Ired. (N. C.) L. 
 22 ; Bratton v. Clendenin, Harp. 
 (S. C.) 454; Abbott v. Johnson, 47 
 Wis. 239. 
 
 Compensation of witness summoned 
 in several suits. Parker v. Cartzlei-, 5 
 McLean (U. S.) 4 ; Findley v. Wyser, 
 1 Stew. (Ala.) 23; Pulaski County 
 V. Downer, 10 Ark. 588 ; Robison v. 
 Banks, 17 Ga. 211; Hardin v. Polk 
 County, 39 Iowa, 661 ; Taylor v. Ver- 
 mont &c. R. R. Co., 1 Gray (Mass.) 
 422 ; Hicks v. Brennan, 10 Abb. (N. Y.) 
 Pr. 304 ; Vence v. Speir, 18 How. 
 (N. Y.) Pr. 168 ; Sanders v. Failing, 
 1 Thomp, & C, (N. Y.) 64; Batdorf 
 
 V. Eckert, 3 Pa. St. 267 ; Re McCul- 
 lough, 12 Phil. (Pa.) 576; House v. 
 Barber, 10 Vt. 158; McHugh v. Chi- 
 cago &c. R'y Co., 41 Wis. 79. 
 
 or bi/ both parties. Renfro v. 
 
 Kelly, 10 Ala. 338 ; Peace v. Person, 
 1 Murph. (N. C.) 188. 
 
 Compensation of witness under recog- 
 nizance or committed. Ex parte John- 
 son, 1 Wash. (U. S.) 47 ; Iligginson's 
 Case, 1 Cranch. C. Ct. 73 ; Markwell 
 V. Warren County, 53 Iowa, 422 ; 
 Hutchinsu. State, 8Mo. 288; Ex parte 
 Mitchell, 17 N. H. 501. 
 
 Eees of State witnesses in criminal 
 cases. Cuthbert v. Lewis, 6 Ala. 262 ; 
 Nicholas v. Trickey, 19 Id. 92 ; Bar- 
 rett .,■. State, 24 Id. 74; Briggs v. 
 Coleman, 51 Id. 561 ; Sargent v. Cavis, 
 36 Cal. 552 ; Comm'rs of Shawnee 
 County V. Ballinger, 20 Kan. 590 ; Re 
 Herrick, 78 Ky. 23 ; Lannahan i'. 
 Multnomah County, 3 Oreg. 187 ; Wil- 
 son r. County of York, 11 Lan. Bar 
 (Pa.) 170. 
 
 of defendants in criminal cases. 
 
 Howell l: Blackwell, 7 Ga. 443 ; Don- 
 nelly V. County, 7 Iowa, 419 ; County 
 of Jones V. County of Linn {Iowa), 
 25 N. W. Rep. 9.30; Com. v. Williams, 
 13 Mass. 501; Ex parte Chamberlain, 
 4 Cow. (N. Y.) 49 ; Little v. Todd, 3 
 Rich. (S. C.) 91. 
 
 Suits in forma pauperis. Morris v. 
 Rippy, 4 Jones (N. C.) L. 533. 
 
 When a parti/ is entitled to fees as a 
 witness. George v. Starrett, 40 N. H. 
 135; Fulton Bank v. New York &c. 
 Canal Co., 4 Paige (N. Y.) 127 ; Elliott 
 V. Lewis, 3 Edw. (N. Y.) 40; Van 
 Dusen v. Bissell, 29 How. (N. Y.) Pr. 
 481; Christy u. Christy, 6 Paige 
 (N. Y.) 170; Penny v. Brink, 75 N. C. 
 68; Rhoades v. Bank, 12 Phil. (Pa.) 
 391 ; Ganse v. Edminston, 35 Tex. 69. 
 Witnesses examined before grand 
 jury. State v. Edwards, 13 Fla. 573; 
 State V. Treadway, 3 Lea (Tenn.) 55. 
 
 Effect of summoning unnecessary wit- 
 nesses. Davis u. Melvin, 1 Ind. 136; 
 Brookshire v. Brookshire, 8 Ired. 
 (N. C.) L. 74; Holmes v. Johnson, 11 
 Id. 55; Commonwealth o. Wood, 3 
 
532 ATTENDANCE AND COMPENSATION. [CHAP. XXVIII. 
 
 compensated for loss of time, merely,^ but tlie case of an 
 expert witness would seem to differ from that of an unpro- 
 fessional witness called simply to depose to matters of fact. 
 The expert is summoned to speak to a matter of opinion, 
 depending on his skill in a particular profession or trade ; 
 the ordinary witness is bound, as a matter of public duty, 
 to speak to the fact which has occurred within his knowl- 
 edge ; but the expert is under no such obligation, and is 
 selected by the party to give his opinion merely ; and he is 
 entitled, therefore, to demand a compensation for loss of time.^ 
 
 In some of the states extra compensation to experts is 
 provided for by statute : such is the case in lowa,^ North 
 Carolina,* Rhode Island,^ and possibly some other states. In 
 Indiana, on the other hand, experts are compellable, by 
 statute, to depose to their opinions without extra compensa- 
 tion.^ In the absence of statutory provisions, extra compen- 
 sation paid to an expert witness cannot be taxed in the bill 
 of costs, but is a disbursement to be borne by the party 
 calling such witness.''' 
 
 The true rule seems to be that while an expert, like any 
 other witness, may be compelled to attend and testify to any 
 facts within his knowledge, without the payment or promise 
 of extra compensation, yet he cannot be compelled to make 
 any preliminary investigation of the facts involved, in order 
 to prepare himself to give a professional opinion.^ But the 
 
 Binn. (Pa.) 414; Sherman u. Brown, 278; Plores v. Thorn, Id. 377; Craw- 
 
 4 Yerg. (Tenn.) 561 ; Barton v. Bird, ford v. Grain, 19 Tex. 145. 
 1 Overt. (Tenn.) 73. i Collins v. Godefroy, 1 Barn. & 
 
 Witness' right of action for compen- Ad. 957 ; Lonegan v. Eoy. Excli. Co., 
 
 sation. Hill v. White, 1 Ala. 576; 7 Bing. 731. 
 
 Burns v. Howard, 68 Ala. 352; Crozier 2 vVcbb v. Page, 1 Car. & K. 23. 
 
 <,-. Berry, 27 Ga.346; Worland v. Out- s Code 1873, § 3814. See Snyder 
 
 ten, 3 Dana (Ky.) 477 ; Holbroolc v. v. Iowa City, 40 Iowa, 646. 
 Cooley, 25 Minn. 275 ; Leighton u. « Laws 1871, eh. 139, § 13. 
 Twombly, 9 N. H. 483; Fuller v. Mat- ^ Pub. Stat. 1882, p. 733, § 15. 
 tice, 14 Johns. (N. Y.) 357 ; Baker v. ^ Rer. Stat. 1881, p. 94, § 504. But 
 
 Brill, 15 Johns. (N. Y.) 260; "Watts see Buchman w. State, 59 Ind. 1 ; Dills 
 
 f. Van Ness, 1 Hill (N. Y.) 76 ; Stanly v. State, Id. 15, 23. 
 V. Hodges, Cam. & N. (N. C.) 330; ' Mask v. City of Buffalo, 13 Rep. 
 
 Swcany v. Hunter, 1 Murph. (N. C.) 251. 
 
 181 ; Belden v. Snead, 84 N. C. 243 ; 8 Qaston v. Board of Comm'rs, 3 
 
 Strein i;. Zeigler, 1 Watts & S.-(Pa.) Ind. 497; Lyon v. Wilkes, 1 Cow. 
 
 259 ; Utt V. Long, 6 Id. 174 ; Bagley (N. Y.) 591 ; Summers v. State, 5 Tex. 
 
 ti. Clement, 2 McCord (S. C.) 244; App. 374. In People u. Montgomery 
 
 Wetherspoon v. Killough, Mart. & Y. (13 Abb. (N. Y.) Pr. k. s. 207) it is 
 
 (Tenn.) 38 ; Harris v. Coleman, 8 Tex. held that " a witness meets the require- 
 
§ 307.] 
 
 COMPENSATION OP EXPEETS. 
 
 633 
 
 question whether an expert can be compelled to testify to 
 his opinion based upon the researches made by him in the 
 ordinary course of his professional study and investigation, 
 and not upon any special examination of the facts of the 
 particular case, must still be regarded as an open question, 
 it being impossible to harmonize the decisions relating to it.^ 
 In England extra compensation is allowed,^ and both there 
 and here the theory on which such allowance is founded is, 
 that professional and scientific knowledge is property which 
 the public have no right to condemn to their own use with- 
 out making suitable compensation therefor ; though some 
 of the cases proceed on the idea that it is loss of time only 
 that should be compensated for, and that the expert should 
 be paid more than the non-expert, because his time is of 
 greater value. This latter theory has been deemed a hard 
 one,^ and whether it can stand the test of examination is 
 considered doubtful.* 
 
 ments of a subpoena if he appears in 
 court wiien required to testify, and 
 gives proper impromptu answers to 
 such questions as are then put to liim. 
 He cannot be required by virtue of 
 the subpoena to examine tlie case, to 
 use his skill and knowledge to form 
 an opinion, nor to attend, hear and 
 consider the testimony given, so as to 
 be qualified to give a deliberate opin- 
 ion on a, question of science arising 
 upon such testimony : hence, a pro- 
 fessional witness, called as an expert, 
 may be paid for his time, services, 
 and expenses ; and the question what 
 amount is paid cannot, in the absence 
 of anything to show bad faith, affect 
 the regularity of the trial, though it 
 may, perhaps, affect his credit with 
 the jury. It is not improper for the 
 district attorney to procure the at- 
 tendance of skilled witnesses in appro- 
 priate cases, for a special compensa- 
 tion ; nor will the fact that an expert 
 attended and testified at his instance, 
 under agreement for compensation, 
 which was unknown to the defence 
 until after witness' testimony was 
 closed, be an irregularity affecting 
 
 the verdict." This case was followed 
 in Buchman t;. State, 59 Ind. 1, and 
 Dills v. State, Id. 15. S. P., Harvey 
 V. Evansville &c. Steam Packet Co., 
 8Biss. (U. S.)99; Le Mere k. McHale, 
 30 Minn, 410. 
 
 1 Writers on medical jurispru- 
 dence, for obvious reasons, take the 
 negative side of this question (Beck 
 Med. Jur. 920, 921 ; Ordronaux Jurisp. 
 Med. §§ 114, 115), as do also the fol- 
 lowing legal adjudications : Matter of 
 Eoelker, 1 Sprague (U. S.) 276; Buch- 
 man 0. State, supra; U. S. v. Howe, 
 12 Cent. L. J. 193. 
 
 The following cases adopt the af- 
 firmative view of the proposition stated 
 in the text : Ex parte Dement, 53 Ala. 
 389; Sumner c. State, 5 Tex. App. 
 374 ; "Wright v. People, 2 Lan L. Kev. 
 (Pa.) 379. 
 
 2 Webb. V. Page, 1 Car. & K. 25; 
 Parkinson v. Atkinson, 31 L. J. C. P. 
 N. s. 199 ; Turner v. Turner, 5 Jur. 
 N. s. 889. 
 
 2 See Lonergan v. Koyal Exchange 
 Assurance, 7 Bing. 725, 727; Collins 
 V. Godefroy, 1 Barn. & Ad. 930. 
 
 * Rogers Exp. Test. § 194. 
 
INDEX. 
 
INDEX. 
 
 The figures refer to the sections. 
 
 A. 
 
 ABDUCTION, 
 
 competency of husband or wife, in action for abducting wife, 169. 
 
 ABSENT WITNESS. See Depositions. 
 
 ACCEPTORS, 
 
 of bills, competency at common law, 65. 
 
 ACCESS. See Husband and Wife. 
 
 ACCESSORIES. See Accomplices. 
 
 ACCOMMODATION PAPER, 
 
 competency of parties to, at common law, 65. 
 
 ACCOMPLICES, 
 
 competency of, 21. 
 
 wife of, 170. 
 credibility of, 188. 
 
 who are, within rule requiring corroboration, 228. 
 necessity of corroboration of, 226. 
 sufficiency of corroboration of, 227. 
 cross-examination of, 252. 
 waiver by, of privilege against self-crimination, 269. 
 
 ACCOUNTING, 
 
 by personal representatives, who may testify on, 130. 
 
 ACCOUNTS, 
 
 copies of, when may be used to refresh memory, 281. 
 
 ACCUSED PARTY, 
 
 competency of wife of, 170. 
 fees of witnesses for, 306n. 
 
 statement of, without oath, in certain States, 153. 
 waiver by, of privilege to refuse to answer, 269. 
 See Defendant. 
 ACQUITTAL, 
 
 effect of, to restore competency, see Judgment. 
 
 ACT. See Statutes. 
 
 ACTION, 
 
 by witness, for fees, 306n. 
 
 ADMINISTRATOR. See Executors ; Personal Representatives. 
 
538 INDEX, 
 
 The figures refer to the sections. 
 
 ADULTERY, 
 
 competency of husband or wife, in prosecutions for, 170. 
 corroboration of prosecuting Tvitness, in trial for, 225. 
 See Criminal Conversation ; Seduction. 
 
 ADVERSE PARTY, 
 
 effect of examining, as a witness, 44. 
 
 See Parties. 
 AFFIRMATION, 
 
 by witness, in lieu of oath, 235. 
 
 AGE, 
 
 effect of, on competency of child, 7. 
 
 aged person, 10. 
 AGENCY, 
 
 competency of hu^iband or wife in cases of, 162. 
 
 AGENTS, 
 
 competency of, 73. 
 
 communications with, not privileged, 278. 
 credibility of, 187. 
 
 of deceased principal, testimony as to transactions with, 130. 
 competency of agent signing bill or note, 73re. 
 to purchase, 73n. 
 sell, 73n. 
 collecting agent, 73«. 
 corporate agent, 73n. 
 insurance agent, 73«. 
 ALABAMA, 
 
 enabling statutes of, in civil cases, 100. 
 statement of accused in, 153, and note. 
 
 ANSWER IN CHANCERY, 
 
 comfirmatory pi-oof to overcome, 220. 
 
 ANSWER OF WITNESS, 
 
 on direct examination, sufficiency of, 243. 
 objections to, 244. 
 cross-examination, sufficiency and effect, 250. 
 refusal to answer, generally, 257. 
 
 because of liability to civil suit or loss, 258. 
 
 penalty or forfeiture, 259. 
 disgrace, 260. 
 self-crimination, generally, 261-268. 
 
 when privilege allowed, 262. 
 
 not allowed, 263. 
 how and when to be claimed, 264. 
 privilege personal to witness, 265. 
 who to decide on tendency of, to criminate, 266. 
 
INDEX. 5S9 
 
 The figures refer to the sections. 
 
 ANSWER OF WITNESS— Conimuerf. 
 
 effect of refusal to make self-criminating, 267. 
 
 pardon, limitation, or statute, to remove the privilege, 268. ' 
 comments by court or counsel upon refusal to give self-criminating 
 testimony, 267. 
 
 APPEARANCE, 
 
 credibility of witness, how far dependent on, 183. 
 
 ARBITRATORS, 
 
 competency of, 4.5. 
 
 privilege of communications with, 275. 
 
 ARIZONA, 
 
 enabling statutes of, in civil cases, 101. 
 competency of accused persons in, 153n. 
 
 ARKANSAS, 
 
 enabling statutes of, in civil cases, 102. 
 
 ARREST, 
 
 privilege of witness from, while attending at court, 305. 
 
 ARTISANS, 
 
 as experts, 29S. 
 
 ASSAULT, 
 
 on wife, her competency against husband, 170. 
 
 ASSENT, 
 
 necessity of, to validity of release of interest, 95. 
 
 ASSIGNMENT, 
 
 of interest, to restore competency, generally, 89. 
 
 of partner, 70. 
 
 ASSIGNOR AND ASSIGNEE, 
 
 competency of, at common law, 52, 130. 
 
 who are, of choses in action, under N. Y. Code, 130. 
 
 atheists; 
 
 effect on competency of defect of religious belief, 11. 
 ascertaining competency with reference to religious belief, 12. 
 statutory abolition of incompetency of, 13. 
 
 ATTACHMENT, 
 
 of recusant witnesses, 301-304. 
 
 ATTENDANCE, 
 
 modes of securing, 301. 
 privileges during, 302. 
 fee for, 306n. 
 continued, fee for, 306n. 
 punishment for refusal to attend, 302. 
 
540 INDEX. 
 
 The figures refer to the sections, 
 
 ATTORNEYS, 
 
 at law, competency of, 53. 
 in fact, competency of. Tin. 
 privilege of communications with, 130, 271. 
 See Counsel. 
 
 B. 
 
 BAIL, 
 
 competency of, for principal, 54. 
 
 may arrest principal while in attendance as witness, 305. 
 
 BAILOR AND BAILEE, 
 
 competency of, for each other, 55. 
 
 BANKRUPTS, 
 
 competency of, at common law, 56. 
 
 BANKS AND BANKERS, 
 
 competency of officers of banks, 77n. 
 
 stockholders of banks, 77». 
 communications with bankers not privileged, 278. 
 
 BARON AND FEME. See Husband and Wife 
 
 BASTARDY, 
 
 corroboration of relatrix, 225. 
 
 not generally required in America, 225. 
 
 BELIEF. See Opinion. 
 
 BEST EVIDENCE, 
 
 as to foreign law, 296. 
 
 handwriting, 299. 
 
 BIAS, 
 
 credibility, how far affecteol by, 184. 
 impairing credibility 115' proof of, 202. 
 
 BIGAMY, 
 
 competency of husband or wife in prosecution for, 170. 
 See Marriage. 
 
 BILLS AND NOTES, 
 
 competency of parties to, at common law, 05. 
 
 BORROWER, 
 
 oil usurious contract, competency of, 79. 
 
 BREACH OF PROMISE, 
 
 corroboration of prosecuting witness, 225. 
 
 BROKERS, 
 
 competency of, at common law, 70;?. 
 
IKDEX. 541 
 
 The figures refer to the sectionG. 
 
 BURDEN OF PROOF, 
 
 on questions of competency, 177, 
 as to sanity of witness, 4. 
 
 See Evidence; Proof. 
 
 c. 
 
 CALIFORNIA, 
 
 enabling statutes of, in civil cases, 103. 
 competency of accused persons in, 153n. 
 
 CESTUI QUE TRUST, 
 
 competency of, at common law, 78. 
 
 CHANCERY. See Answer ix Chancekt. 
 
 CHARACTER, 
 
 competency of witness to, 198. 
 
 credibility, how far dependent on, 182. 
 
 proof as to, sufficiency of, and effect on credibility, 200. 
 
 right to impeach, 197. 
 
 sustaining witness by proof of, 223. 
 
 what questions may be put to witness to, 199. 
 
 CHEMISTS, 
 
 as experts, 295. 
 
 CHILDREN, 
 
 competency of, age as afiecting, 7. 
 
 for parent, 69. 
 religious instruction of child-witness, 8. 
 
 CHINAMEN, 
 
 competency of, 24. 
 
 CIVIL ENGINEERS, 
 as experts, 297. 
 
 CLERGYMEN, 
 
 privilege of communications with, 130, 273. 
 
 CLERKS, 
 
 communications vpith, not privileged, 278. 
 of banks, competency of, at common law, 73n. 
 courts, competency of, at common law, 68n. 
 
 COHABITATION. See Husband and Wife. 
 
 COLLATERAL PROCEEDINGS, 
 
 competency of husband and wife in, 161. 
 
 COLLECTORS, 
 
 competency of, at common law, 73n. 
 of taxes and tolls, competency of, 68n. 
 
542 INDEX. 
 
 The figures refer to the sectioDS, 
 
 COLLISION, 
 
 competency of witnesses in cases of, 71. 
 
 COLORADO, 
 
 enabling statutes of, i;i civil cases, 104. 
 competency of accused persons in, 153n. 
 
 COMMENTS, 
 
 by court, on testimony of accused, 190. 
 See Defexdant. 
 COMMISSIONERS, 
 
 competency of, at common law, 68n. 
 
 COMMON LAW, 
 
 competency of parties to record at, 25-45. 
 persons interested at, 46-82. 
 Jiusband and wife at, 154-170. 
 accused persons at, 42. 
 infamous persons at, 14-19. 
 accomplices at, 21. 
 
 See Enabling Statutes. 
 
 COMPARISON, 
 
 of handwriting, by experts, 299. 
 
 COMPENSATION. See Fees. 
 
 COMPETENCY, 
 
 age as affecting, 7. 
 
 ascertaining, with reference to religious belief, 12. 
 as affected by idiocy, 3. 
 insanity, 4. 
 intoxication, 5. 
 means of knowledge, 9. 
 recollection, 10. 
 
 want of sufficient understanding, 2. 
 character of enabling acts as to defendants in criminal cases, 147. 
 common law rule as to infamous persons, 14. 
 effect on, of conviction of minor offence, 18. 
 defect of religious belief, 11. 
 foreign judgment of conviction, 17. 
 enabling statutes in civil cases, 97-145. 
 
 criminal cases, 146-153. 
 examination as to, on voir dire, 175. 
 general rule excluding parties to record, 25. 
 grounds of objection to, 172. 
 
 honorary obligation to party no disqualification, 47. 
 husband and wife incompetent against each other, 156. 
 
 for each other, 157. 
 to prove non-access, 158. 
 liability for costs, as affecting, 29. 
 
INDEX. 543 
 
 The figures refer to the eections. 
 
 COMPETENCY— Coniinuerf. 
 
 limits to rule excluding husband and wife, 160. 
 
 parties to record, 27. 
 mental disqualifications, 2-10. 
 moral disqualifications, 11-21. 
 objections to, generally, 171. 
 of accomplices, 21. 
 
 agents, 74. 
 
 assignor or assignee, 52. 
 
 attorneys, 53. 
 
 bail, 54. 
 
 bailor or bailee, 55. 
 
 bankrupts, 56. 
 
 cestui que trust, 78. 
 
 children, 7, 8. 
 
 Chinamen, 24, 
 
 corporate ofiicers, 77. 
 
 creditors, 57. 
 
 deaf-mutes, 6. 
 
 debtors, 57. 
 
 defendant, for co-defendant, 32-35. 
 plaintiff, 36. 
 in criminal cases, 42, 43, 146-153. 
 
 devisees, 61. 
 
 disinterested, nominal, and unnecessary parties, 28. 
 
 divorced spouse, 166. 
 
 donor or donee, 58. 
 
 evidence to corroborate witness, 221. 
 
 experts, 293 et seq. 
 
 grantor or grantee, 59. 
 
 guardian, 60. 
 
 heirs, 61. 
 
 husband and wife, 154-170. 
 
 idiots, 3. 
 
 Indians, 22. 
 
 informers, 75. 
 
 insane persons, 4. 
 
 intoxicated persons, 5. 
 
 judges and arbitrators, 45. 
 
 jurors, grand and petit, 62. 
 
 landlords, 63. 
 
 legatees, 61. 
 
 mortgagor or mortgagee, 64. 
 
 negroes and slaves, 23. 
 
 next of kin, 61. 
 
 obligor or obligee, 67. 
 
 officers, 68. 
 
544 INDEX. 
 
 The figures refer to the sectioDS. 
 
 COMPETENCY— Continued. 
 
 one party as witness for another, 31. 
 
 parent and child, 69. 
 
 parties to negotiable paper, 65. 
 
 non-negotiable paper, 66. 
 record, at common law, 25-45. 
 
 under enabling acts, 97-145. 
 usurious contracts, 79. 
 partners, 70. 
 part-owners, 71. 
 personal representatives, 72. 
 persons interested, at common law, 46-51. 
 
 under enabling acts, 97-145. 
 plaintiff, for defendant, 37. 
 principal or agent, 73. 
 surety, 74. 
 prosecutors, 75. 
 purchaser of chattels, 81. 
 
 lands, 80. 
 servants, 76. 
 shareholders, 77. 
 sureties, 74. 
 
 surviving husband, 164. 
 tenants, 63. 
 trustees, 78. 
 vendor of chattels, 81. 
 
 lands, 80. 
 wards, 60. 
 wai-rantors, 82. 
 widows, 165. 
 wife, 154-170. 
 
 in prosecution for adultery, 170. 
 bigamy, 170. 
 when agent for husband, 162. 
 witness liable for costs, 51. 
 to character, 198. 
 whose interest is balanced, 48. 
 who will testify against interest, 50. 
 operation of enabling statutes in civil cases, 97-145. 
 
 criminal cases, 146-153. 
 presumptions and burden of proof as to, 177. 
 producing extrinsic evidence as to, 176. 
 proper time to interpose objections to, 173. 
 restoration to, 83-96. 
 
 by assignment or transfer of interest, 89. 
 indemnifying witness, 93. 
 reversal of judgment, 19. 
 
INDEX. 545 
 
 The figures refer to the sections. 
 
 COMPETENCY — Continued. 
 
 restoration to, by release of interest, 88-88. 
 
 review of trial as to, 179. 
 
 scope and limits of rule excluding parties, 26. 
 
 persons interested, 47. 
 social disqualifications, 22-24. 
 
 testimony of accused admissible against him on new trial, 152. 
 time to execute release of interest, 86. 
 trying the question of, 171-179. 
 waiver of objections to, 178. 
 
 CONDUCT, 
 
 of witness, credibility as affected by, 182. 
 
 COXFIDENTIAL COMMUNICATIONS. See Privileged Commu- 
 nications. 
 
 CONNECTICUT, ^ 
 
 enabling statutes of, in civil cases, 105. 
 competency of accused persons in, 153n. 
 
 CONSENT, 
 
 effect of, on competency of husband and wife, 163. 
 
 CONSIGNEES, 
 
 competency of, at common law, 73n. 
 
 CONSTABLES, 
 
 competency of, at common law, 68n. 
 
 CONTRACTS, 
 
 competency of parties in actions on, at common law, 33, 38. 
 usurious, competency of parties to, 79. 
 
 CONTRADICTORY STATEMENTS. See Conteadiction ; Im- 
 peachment. 
 
 CONTRADICTION, 
 
 allowed as to fact sworn to by one's own witness, 214. 
 leading witness, to lay foundation for, 242. 
 limits to rule as to contradicting one's own witness, 213. 
 not allowed where former statement is impertinent or immaterial, 209. 
 of one's own witness forbidden, generally, 211. 
 testimony of party called by other party, 215. 
 unfriendly or hostile witness, 216. 
 proof of; between written statements, 205. 
 
 former expressions of opinion and present testi- 
 mony, 210. 
 what previous statement the subject of, 209. 
 
 See Credibility ; Impeachment. 
 
 CONVEYANCERS, 
 
 privilege of communications with, 271. 
 
546 INDEX. 
 
 The figures refer to the sectioDS. 
 
 CONVICTION, 
 
 competency as affected by, lJ-21. 
 
 ill New York, 130. 
 effect of foreign judgment of, 17. 
 for minor offence, effect of, on competency, 18. 
 impeaching witness by proof of, 201. 
 statutory abolition of incompetency because of, 20. 
 
 COPIES, 
 
 when may be used to refresh memory, 281. 
 
 CORPORATIONS, 
 
 competency of agents of, 73n. 
 officers of, 77. 
 shareholders in, 77. 
 
 CORROBORATION, 
 
 necessity of, generally, 218. 
 of complainant in breach of promise case, 225. 
 divorce case, 225. 
 prosecuting witnesses in trials for adultery, 225. 
 prosecutor in perjury case, 225. 
 treason case, 225, 
 prosecutrix in rape case, 225. 
 
 seduction case, 225. 
 relatrix in bastardy case, 225. 
 testimony of accomplices, necessity of, 226. 
 sufficiency of, 227. 
 right to sustain a witness, 217. 
 sufficiency of corroborative evidence, 221. 
 what necessary to overcome answer in chancery, 220. 
 
 where witness is shown to have falsified, 219. 
 See Credibility; Impeachment. 
 COSTS, 
 
 liability of party for, as affecting competency, 29. 
 
 witness for, as affecting competency, 51. 
 COUNSEL, 
 
 comments by, upon accused's omission to testify, 150. 
 where accused becomes a witness, 151. 
 See Attorneys. 
 COUNSEL AND CLIENT, 
 
 privileged communications between, 130, 271. 
 
 COURT, 
 
 discretionary powers of, in relation to witnesses, 229. 
 power of, to direct and limit direct-examination, 231. 
 
 control cross-examination, 245. 
 privileges of witnesses in attendance at, 805. 
 release of interest by, 85. 
 sequestration of witnesses by, 237. 
 
iis^DEX. 547 
 
 The figures refer to the eections. 
 
 CREDIBILITY, 
 
 effect of imperfect recollection, 10, 181. 
 how far dependent on appearance and manner, 183. 
 bias or interest, 184. 
 character and conduct, 182. 
 means of knowledge, 181. 
 relationship to party, 185. 
 of accomplices, 188. 
 
 agents and servants, 187. 
 conflicting testimony, 194. 
 defendants in criminal cases, 190. 
 parties to civil actions, 186. 
 positive and negative testimony, 193. 
 spies and informers, 189. 
 
 proof to impair, see Conteadictiox ; Impeachment. 
 sustain, see Coreoboeation. 
 question of, is for the jury, 180. 
 rules for determining, 191-195. 
 showing bias or prejudice to affect, 202. 
 when one witness is suQicient, 195. 
 
 CREDITOR, 
 
 competency of, at common law, 57. 
 
 CRIME, 
 
 impeachment by proving conviction of, 201. 
 
 CRIMINAL CASES, 
 
 character of enabling acts relative to, 147. 
 
 conuiients by counsel upon defendants' omission to testify, 150. 
 
 competency of defendants in, at common law, 42, 43. 
 
 liusband and wife in, 170. 
 corroboration of prosecuting witnesses in, 225. 
 credibility of defendants in, 190. 
 cross-examination of defendants in, 251. 
 accomplices, 252. 
 persons jointly indicted, 252. 
 effect of accused becoming a witness, 151. 
 omitting to testify, 150. 
 extent of accused's statutory competency, 148. 
 necessity in, of corroborating testimony of accomplices, 226. 
 statement of the accused in, 153. 
 statutory competency of defendants in, 140-153. 
 right of defendant to show intent, 149. 
 testimony of accused in, admissible against him on new trial, 152. 
 waiver by accused of privilege to refuse to answer, 269. 
 
 CRIMINAL CONVERSATION, 
 
 competency of husband or wife in actions for, 169. 
 
548 INDEX. 
 
 The figures refer to the sections. 
 
 CROSS-EXAMINATION, 
 
 as to previous statements, must show whether oral or in writing, 208. 
 
 extent of right to, 245. 
 
 how far limited by examination-in-ohief, 246. 
 
 to relevancy to issue, 247. 
 of accomplices, 252. 
 
 defendants in criminal cases, 251. 
 
 persons jointly indicted, 252. 
 power of court to control, 245. 
 re-cross examination, 254. 
 sufficiency and effect of witness' answers, 250. 
 what questions proper in, 248. 
 
 D. 
 
 DAKOTA, 
 
 enabling statutes of, in civil cases, 106. 
 
 DAMAGES, 
 
 opinions, as to amount of, 290. 
 
 DATE, 
 
 of memoranda used to refresh memory, 281. 
 
 DEAF-MUTES, 
 
 competency of, 6. 
 
 DEATH, 
 
 of witness, after direct and before cross examination, effect of, 245. 
 
 DEBTOR AND CREDITOR, 
 
 competency of, at common law, 57. 
 effect of usury on competency of, 79. 
 
 DECEDENT'S ESTATE, 
 
 competency of parties in actions by or against, 99-145. 
 
 personal representative, in actions by or against, 72. 
 DEFAULT, 
 
 competency of partner suffering judgment by, 70. 
 effect of, on competency of party in action on contract, 38. 
 
 of tort, 39. 
 DEFENDANT, 
 
 statutes enabling him to testify in criminal cases, 146-153. 
 comments by counsel on omission of, to testify, 150. 
 competency of, at common law, in criminal cases, 42. 
 for co-defendant, in civil cases, 32. 
 
 in actions on contract, 33. 
 
 of tort, 34. 
 in suits in equity, 35. 
 plaintiff for, 37. 
 credibility of, in criminal cases, 190. 
 
INDEX. 549 
 
 The figures refer to the sections. 
 
 DEFENDANT— Continue;;. 
 
 cross-examination of accused, 2.51. 
 
 defendant jointly indicted, 252. 
 effect of becoming a witness in a criminal case, 151. 
 misjoinder of, on competency, 40. 
 omission to testify ij criminal cases, 150. 
 nolle prosequi, in action on contract, 38. 
 
 of tort, 39. 
 separate indictment of, on competency, 43. 
 trial of, on competency, 43. 
 extent of right to testify in criminal cases, 148. 
 legitimate comments by counsel when accused becomes a witness, 151. 
 necessity of enabling statute in criminal oases, 146. 
 right of, to show intent, under enabling acts, 149. 
 statement of accused under certain statutes, 153. 
 testimony of, admissible against him on new trial, 152. 
 
 DEFINITIONS, 
 
 " assignee " of thing in action, 130. 
 
 " assignor " of thing in action, 130. 
 
 " expert," 293. 
 
 "foreign law," in relation to proof thereof, 296. 
 
 " idiot," 3. 
 
 "interest," to disqualify witness, 136. 
 
 " personal transaction or communication," with deceased person, 130. 
 
 " witness," 1. 
 
 DELAWARE, 
 
 enabling statutes of, in civil cases, 107. 
 
 DELIVERY, 
 
 of release of interest, necessity of, 95. 
 
 DEPOSITIONS, 
 
 referring to, to refresh memory, 281. 
 
 DISEASE, 
 
 opinions, as to existence of, 287. 
 prevalence of, 287. 
 DEVISEE, 
 
 competency of, at common law, 61. 
 
 DETECTIVES, 
 
 credibility of, 189. 
 
 DIRECT EXAMINATION. 5ee Examination. 
 
 DISCHARGE, 
 
 in bankruptcy, restores competency, 56. 
 
 DISCLAIMER, 
 
 of title, restoration to competeucy by, 91. 
 
553 iXDEx. 
 
 The figures refer to the BecUons. 
 
 DISCONTINUANCE, 
 
 competency of party, as affected by, 70. 
 
 DISCRETIONARY POWER. &e Court. 
 
 DISQUALIFICATIONS, 
 
 absence of means of knowledge, 9. 
 defect of religious belief, 11, 12. 
 effect of conviction of crime, 14-20. 
 
 minor offence, 18. 
 foreign conviction, 17. 
 idiocy, 3. 
 
 imperfect recollection, 10. 
 infancy, or advanced age, 7, 8, 10. 
 insanity, 4. 
 
 insufficient understanding, 2. 
 interest in the event, 46-51. 
 intoxication, 5. 
 loss of hearing and speech, 6. 
 of accomplices, 21. 
 
 Chinamen, 24. 
 
 convicts, 14-20. 
 
 defendants in criminal cases, 42, 43. 
 
 husband and wife, 154-170. 
 
 Indians, 22. 
 
 negroes and slaves, 23. 
 
 parties to record, 25-45. 
 
 persons interested in event, 46-51. 
 operation of enabling statutes in civil cases, 97-145. 
 
 criminal cases, 146-153. 
 DISSOLUTION, 
 
 of partnership, competency of partners after, 70. 
 
 DISTRICT OF COLUMBIA, 
 
 enabling statutes of, in civil cases, 99. 
 competency of accused persons in, 153«. 
 
 DIVORCE, 
 
 competency of husband and wife in actions for, 168. 
 corroboration of complainant in action for, 225. 
 effect of, on competency of husband and wife, 166. 
 
 DONOR AND DONEE, 
 
 competency of, at common law, 58. 
 
 DORMANT PARTNER, 
 
 competency of, 70. 
 
 DOWER. See Widow. 
 DRUNKENNESS. See Intoxication. 
 DUCES TECUM. See Subpcena duces tecum. 
 
II^DEX. 551 
 
 The figures refer to the sections. 
 
 E. 
 ENABLING STATUTES, 
 
 comments by counsel on accused's failure to testify, under, 150. 
 defendant's right, in criminal cases, to show intent, under, 149. 
 effect of accused person testifying under, 151. 
 
 omission by accused to testify under, 150. 
 extent of accused's right to testify under, 148. 
 necessity of, in criminal cases, 146. 
 operation of, in civil cases, generally, 97-145. 
 statement by accused, under certain statutes, 153. 
 statutory competency of accused persons, 146-153. 
 testimony of accused under, admissible against him on new trial, 
 152. 
 
 EQUITY, 
 
 competency of defendant for co-defendant, in, 35. 
 
 parties to record in courts of, 35. 
 evidence necessary to control answer in, 220. 
 "witnesses, competency of, in, see Competency. 
 
 T.RRORS, 
 
 what cured below, on questions of competency, 179. 
 
 EVIDENCE, 
 
 as to sanity of witness, -4. 
 in corroboration, competency of , 221. 
 sufficiency of, 222. 
 of handwriting, 229. 
 to corroborate prosecuting witness, 225. 
 
 show former conviction of witness, 130. 
 when testimony of one witness sufficient, 195. 
 
 (See CoNTEADiCTioN ; Cokeoboration ; Impeachment.) 
 
 EXAMINATION, 
 
 cross-examination, 245-252. See that title, 
 direct examination of, in-chief, 233-244. See infra, 
 discretionary power of the court as to, 229. 
 in-chief, general rules, 233. 
 
 exclusion from court room, 237. 
 
 inquiring as to intent or motive, 239. 
 
 interpreters, 236. 
 
 oath or affirmation, 235. 
 
 objections to questions and answers, 244. 
 
 propriety and sufficiency of answers, 243. 
 
 re-direct examination, 253. 
 
 rule forbidding leading questions, 240. 
 
 ■what questions are leading, 241 . 
 
 •when one may lead his own witness, 242. 
 notice of intention to examine witness, 231. 
 
552 iNDsx. 
 
 The figures refer to the sections, 
 
 EXAMINATION— Conftnuerf. 
 
 of adverse party, effect of, on competency, 44. 
 
 experts, 294. See Experts. 
 on the voir dire, 175. 
 order of, 230. 
 
 power of court to direct and limit, 234. 
 privilege to refuse to answer, 257-260. 
 
 as to self-crimination, 2G1-269. 
 privileged communications, see that title, 
 rebuttal and surrebuttal, 253-256. 
 re-calling and re-examining, 256. 
 refreshing the memory, 279-285. See Memokt. 
 what questions proper on du-ect, 238. 
 
 EXCLUSION, 
 
 of witnesses from court-room, 237. 
 
 EXCUSES, 
 
 for non-attendance, 302. 
 
 EXECUTORS. See Personal Representatives. 
 
 EXPERTS, 
 
 chemists, 295. 
 
 compensation of, 308. 
 
 competency of, 293. 
 
 effect and value of testimony of, 300. 
 
 engineers, 297. 
 
 examiuation of, 294. 
 
 hypothetical questions to, 294. 
 
 in handwriting, 299. 
 
 mechanics, artisans, and skilled workei's, 298. 
 
 persons skilled in the law, 296. 
 
 physicians, 295. 
 
 qualifications of, 293. 
 
 surgeons, 295. 
 
 surveyors, 297. 
 
 what questions call for testimony of, 292. 
 EXTRA COMPENSATION, 
 
 of experts, 307. 
 
 F. 
 
 FACTORS, 
 
 competency of, at common law, 73n. 
 
 FALSUS IN UNO, FALSUS IN OMNIBUS, 
 how the maxim is applied, 192. 
 
 FEDERAL COURTS, 
 
 operation of enabling statutes in, 98. 
 
 statutory competency of accused persons in, 153re. 
 
INDEX. 553 
 
 The figures refer to the sectiona. 
 
 FEES, 
 
 in general, 306, 307. 
 attendance fee, 306n. 
 mileage, or travel fee, 306n. 
 fee for continued attendance, 306n. 
 necessity of prepayment to compel attendance, 302. 
 of witness summoned in several suits, 308n. 
 by both parties, 306n. 
 
 expert witnesses, 307. 
 
 witness under recognizance, 306n. 
 
 state witnesses in criminal cases, 306ra. 
 
 defendant's witnesses in criminal cases, 306ra. 
 
 witnesses in suits in forma pauperis, 306n. 
 
 party called as a witness, 306n. 
 
 witnesses before grand jury, 306n. 
 
 unnecessary witnesses, 306n. 
 waiver of prepayment of, 302. 
 witness' right of action for, 306n. 
 
 FELONY, 
 
 effect of conviction of, on competency, 14-20. 
 (See Conviction.) 
 FLORIDA, 
 
 enabling statutes of, in civil cases, 108. 
 
 statement of accused in, 153 and note. 
 
 FOREIGN JUDGMENT, 
 
 effect on competency, of conviction by, 17. 
 
 FOREIGN LAW, 
 
 opinions as to, 296. 
 
 FORGED PAPER, 
 
 competency of parties to, 65. 
 
 FORMA PAUPERIS, 
 
 fees of witnesses, in suits in, 306n. 
 
 G. 
 
 GEORGIA, 
 
 enabling statutes of, in civil cases, 109. 
 statement of accused in, 153 and note. 
 
 GOVERNOR, 
 
 not bound to testify, 276. 
 
 privilege of communications from, 276. 
 
 GRAND JURY, 
 
 competency of members of, 62. 
 fees of witnesses examined before, 306n. 
 punishment for refusal to testify before, 308. 
 secrets of the jury-room, 277. 
 
554 INDEX. 
 
 The figures refer to Ihe sections. 
 
 GRANTOR AND GRANTEE, 
 
 competency of, at common law, 59. 
 
 GUARANTORS, 
 
 of negotiable paper, competency of, 65. 
 
 GUARDIAN, 
 
 competency of, 60. 
 
 H. 
 
 HABEAS CORPUS, 
 ad testificandum, 302. 
 
 HANDWRITING, 
 
 best evidence of, 299. 
 comparison of, 299. 
 who are experts in, 299. 
 
 HEATHEN, 
 
 competency of, and how sworn, 11. 
 
 HEIRS, 
 
 competency of, at common law, 61. 
 
 HOLDERS AND PAYEES, 
 
 of negotiable paper, competency of, 65. 
 
 HONORARY OBLIGATION, 
 
 does not disqualify on ground of interest, 47. 
 
 HOSTILE WITNESS, 
 
 impeachment of, by party calling him, 216. 
 putting leading questions to, 242. 
 
 HUSBAND AND WIFE, 
 
 competency of, in actions for abduction, 169. 
 
 criminal conversatioti, 169. 
 divorce, etc., 168. 
 cases of agency, 162. 
 
 personal injuries, 167. 
 collateral proceedings, 161. 
 criminal actions, 170. 
 New York, 130. 
 prosecutions for adultery, 170. 
 bigamy, 170. 
 surviving husband, 164. 
 to prove the marriage, 159. 
 husband, as agent of wife, 162. 
 wife, as agent of husband, 162. 
 widow, 165. 
 duration of marriage immaterial on question of competency, 159. 
 
INDEX. 555 
 
 The figures refer to the sections. 
 
 HUSBAND AND WIFE— Continued. 
 effect on competency, of consent, 103. 
 divorce, 166. 
 release of interest, 163. 
 limits of common-law rule excluding them, 160. 
 not competent against each other, 156. 
 for each other, 157. 
 to prove non-access, 158. 
 oilence by one against the other — competency, 170. 
 privileged communications between, 274. 
 
 I. 
 
 IDAHO, 
 
 enabling statutes of, in civil cases, 110. 
 competency of accused persons in, 153n. 
 
 IDENTITY, 
 
 opinion evidence as to, 288. 
 
 IDIOTS, 
 
 not competent witnesses, 3. 
 deaf-mutes formerly regarded as, 6. 
 
 ILLINOIS, 
 
 enabling statutes of, in civil cases, 111. 
 competency of accused persons in, 153n. 
 
 IMPEACHMENT, 
 
 by evidence of character, 197-200. 
 
 conviction of crime, 201. 
 
 contradictory statements, 203-210. 
 
 bias or prejudice, 202. 
 competency of witness to character, 198. 
 
 disproving or impeaching testimony of one's own witness, 211-210. 
 fact sworn to by one's own witness may be disproved, 214. 
 how far one party may impeach his adversary called by himself, 215. 
 in proving contradictory written statements, whole paper need not be 
 
 shown witness, 206. 
 limits to rule forbidding impeachment of one's own witness, 213. 
 rule as to unfriendly or hostile witnesses, 216. 
 what questions may be put to witness to character, 199. 
 
 INCOMPETENCY. See Disqualifications. 
 
 INDEMNITY, 
 
 to witness, when restores competency, 93. 
 
 INDIANA, 
 
 competency of accused persons in, 153re. 
 enabling statutes of, in civil cases, 112. 
 
556 INDEX. 
 
 The figures refer to the sections. 
 
 INDIANS, 
 
 competency of, 22. 
 
 INDICTMENT, 
 
 cross-examination of person jointly indicted, 252. 
 effect on competency, of separate indictments, 43. 
 
 INDORSERS, 
 
 competency of, at common law, 65. 
 
 INFAMOUS PERSONS, 
 
 common-law rule excluding them, 14. 
 
 the New York rule, 130. 
 
 who are, 15. 
 
 what constitutes infamy, 15. 
 
 how proved, with regard to competency, 16. 
 
 abolition of the disqualification by statute, 20. 
 
 effect of pardon, 19. 
 
 reversal of judgment, 19. 
 expiration of sentence, 19. 
 INFANTS. See Children. 
 INFIDELS. See Atheists. 
 
 INFORMER, 
 
 competency of, 76. 
 
 wife of, 170. 
 credibility of, 189. 
 INHABITANTS, 
 
 of town, competency of, at common law, 26. 
 INSANE PERSONS, 
 competency of, 4. 
 INSTRUCTIONS, 
 
 to counsel, privilege of, 271. 
 
 jury, as to credibility of accused, 190. 
 INSUFFICIENT UNDERSTANDING, 
 as affecting competency, 2. 
 of idiots, 3. 
 
 insane persons, 4. 
 intoxicated persons, 5. 
 deaf-mutes, 6. 
 children, 7, 8. 
 INSURANCE COMPANIES, 
 competency of agents of, 73re. 
 officers of, 77«. 
 stockholders of, 77. 
 INTENT, 
 
 opinion of ordinary witness as to, 287. 
 
 right of accused to show, under enabling statutes, 154. 
 
 what questions may be asked as to, 239. 
 
INDEX. 567 
 
 The figures refer to the sections. 
 
 INTEREST IN EVENT, 
 
 assignment or transfer of, effect on competency, 70, 89. 
 
 of, by partner, 70. 
 competency of, witness devoid of, 130. 
 
 who testifies against, 130. 
 whose interest preponderates against party 
 calling him, 49. 
 credibility, how far dependent upon, 184. 
 rules of common law as to, 46-51. 
 divestment of, by disclaimer of title, 91. 
 
 judgment for or against witness, 92. 
 payment, 90. 
 
 indemnifying witness, 93. 
 effect of balance of, on competency, 48. 
 
 release of, between husband and wife, 163. 
 illustrations of disqualification on ground of, 52-82. 
 objections to witness, on ground of, 96. 
 proof of release of, 96. 
 refusal to testify on ground of, 303. 
 rules of common law as to, 46-51. 
 time to execute release of, 86. 
 what is a good and sufficient release of, 88. 
 what may be removed, 87. 
 
 not be i-emoved, 87. 
 when the court may release, 85. 
 who may execute release of, 84. 
 
 INTERPRETERS, 
 
 employment of, 236. 
 
 INTOXICATED PERSONS, 
 
 competency of, 5. 
 
 IOWA, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 113. 
 
 J. 
 JAILORS, 
 
 competency of, at common law, 68ra. 
 
 JEWS, 
 
 how to be sworn, 11. 
 
 JOINT DEFENDANT, 
 competency of, 32-35. 
 
 wife of, in criminal cases, 170. 
 JUDGES, 
 
 competency of, at common law, 45, 08)!. 
 privilege of communications with, 275. 
 
558 INDEX. 
 
 The figures refer to the sectionB. 
 
 JUDGMENT, 
 
 by default, effect on competency, 70. 
 
 divestment of interest by, for or against -witness, 92. 
 
 efiect on competency, of foreign conviction, 17. 
 
 removal of incompetency by reversal of, 19. 
 See Conviction. 
 JURY, 
 
 competency of jurors, 62. 
 
 instructions to, as to credibility of accused, 190. 
 
 question of credibility for, 180. 
 
 secrets of the jury-room, 277. 
 
 JUSTICE OF THE PEACE, 
 
 competency of, at common law, 68n. 
 
 K, 
 
 KANSAS, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil actions, 114. 
 
 KENTUCKY, 
 
 enabling statutes of, in civil actions, 115. 
 
 KNOWLEDGE, 
 
 competency, as dependent on means of, 9. 
 insufficiency of, when disqualifies, 1-10. 
 credibility, how far dependent on means of, 181. 
 
 L. 
 
 LANDLORD OR TENANT, 
 
 competency of, at common law, 63. 
 
 LAW. See Foreign Law. 
 
 LAWYERS, 
 
 as experts, 296. 
 
 See Attorneys. 
 LEADING QUESTIONS, 
 
 rule forbidding, 240. 
 
 what are, 241. 
 
 aiding witness' memory, not leading, 241. 
 
 directing attention to subject of inquiry not leading, 241. 
 
 in cross-examination, 249. 
 
 put for purpose of contradicting former witness, 242. 
 
 to unwilling or hostile witness, proper, 242. 
 
 when one may lead his own witness, 242. 
 
 LEGATEE, 
 
 competency of, at common law, 01. 
 
INDEX. 659 
 
 The figures refer to the sectioBS. 
 
 LEGISLATIVE BODY, 
 
 punishment for refusal to attend before, 302. 
 testify before, 303. 
 LENDER, 
 
 on usury, competency of, 79. 
 
 LOUISIANA, 
 
 enabling statutes of, in civil cases, 116. 
 
 LUNATICS. See Insane Persons. 
 
 M. 
 
 MAINE, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 117. 
 
 MAKERS, 
 
 of notes, competency of, at common law, 65. 
 
 MANNER, 
 
 credibility of witness, as dependent upon, 183. 
 
 MAPS AND PLANS, 
 
 use of, to refresh memory, 281 . 
 
 MARRIAGE, 
 
 breach of promise of, corroboration in, 225. 
 competency of parties to, to prove, 159. 
 
 in actions to annul, 168. 
 See Divorce ; Husband and Wife. 
 
 MARRIED WOMAN. See Wife. 
 
 MARYLAND, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 118. 
 
 MASSACHUSETTS, 
 
 competenc}' of accused persons in, 153n. 
 enabling statutes of, in civil cases, 119. 
 
 MASTER, 
 
 of vessel, competency of, at common law, 73ra. 
 
 MATERIALITY, 
 
 of previous statement by which to impeach witness, 209. 
 
 MAXIMS, 
 
 Falsus in uno,falsus in omnibus, 192. 
 Nemo ienetur seipsum accusare, 261. 
 
 MECHANICS, 
 
 as experts, 298. 
 
 MEDICAL MEN. See Pni'siciANS. 
 
560 INDEX. 
 
 The figures refer to the sections. 
 
 MEMORANDA, 
 
 to refresh memory, date of, 281. 
 
 when may be used, 280, 
 when must be produced, 282. 
 
 themselves evidence, 284. 
 what may be used, 281. 
 when witness must testify from independent recollection, 283. 
 practice when witness is blind or cannot read, 285. 
 
 MEMORY, 
 
 credibility, how far dependent on, 181. 
 effect on competency, of deficient, 10. 
 refreshing, generally, 279. 
 
 by reference to memoranda, 280-285. 
 See Memoranda. 
 
 MENTAL CAPACITY, 
 
 as affecting competency of children, 7. 
 
 deaf-mutes, 6. 
 
 idiots, 3. 
 
 insane persons, 4. 
 
 intoxicated persons, 5. 
 insufficient understanding, generally, 2. 
 imperfect recollection, 10. 
 opinions of ordinary witnesses as to, 291. 
 
 MICHIGAN, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 120. 
 
 MILEAGE, 
 
 what allowed as, 306n. 
 
 MIND. See Memory ; Mental Capacitt. 
 
 MINNESOTA, 
 
 competency of accused persons in, 153». 
 enabling statutes of, in civil cases, 121. 
 
 MINOR OFFENCE, 
 
 effect on competency, of conviction of, 18. 
 MISJOINDER, 
 
 of parties, effect of, on competency, 40. 
 MISSISSIPPI, 
 
 competency of accused persons in, 153n. 
 
 enabling statutes of, in civil cases, 122. 
 
 MISSOURI, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 123. 
 
 MISTAKE, 
 
 competency of witness make party by, 41. 
 
INDEX. 561 
 
 The figures refer to the sections. 
 
 MONEYED CORPORATIONS, 
 
 competency of shareholders in, 77. 
 
 See Banks ; Corporations. 
 
 MONOMANIAC. See Insane Persons. 
 
 MONTANA, 
 
 enablmg statutes of, in civil cases, 124. 
 
 MORTGAGOR AND MORTGAGEE, 
 competency of, at common law, 64. 
 
 MOTIVE, 
 
 right of accused to show, 149. 
 
 what question may be asked as to, 239. 
 
 N. . 
 NEBRASKA, 
 
 competency of accused persons in, 153ra. 
 enabling statutes of, in civil cases, 125. 
 
 NEGATIVE TESTIMONY, 
 credibility of, 193. 
 
 NEGOTIABLE PAPER, 
 
 competency of parties to, at common law, 65. 
 
 NEGROES, 
 
 competency of, 23. 
 
 NEVADA, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 126. 
 
 NEW HAMPSHIRE, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 127. 
 
 NEW JERSEY, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 128. 
 
 NEW MATTER, 
 
 cross-examination not to extend to, 246. 
 recalling witness to prove, 256. 
 
 NEW MEXICO, 
 
 enabling statutes of, in civil cases, 129. 
 
 NEW TRIAL, 
 
 competency of testimony of party dying since first trial, 130. 
 testimony of accused on former trial, admissible, 152. 
 
 NEW YORK, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil oases, 130. 
 
562 INDEX. 
 
 The figureB refer to tiie sections. 
 
 NEXT OF KIN", 
 
 competency of, at common law, 61. 
 NOLLE PROSEQUI, 
 
 effect of, to restoi'e competency in actions on contract, 38. 
 
 in actions in tort, 39. 
 NON-ACCESS, 
 
 husband and wife not competent to prove, 158. 
 NON-ATTENDANCE, 
 
 excuses for, 302. 
 
 See ATTENDA^fCE. 
 
 NON-NEGOTIABLE PAPER, 
 
 competency of parties to, at common law, 66. 
 NON-PROFESSIONAL WITNESSES, 
 opinions of, generally, 286-288. 
 
 as to amount of damage, 290. 
 purpose or intent, 287. 
 result of words or acts, 287. 
 sanity and mental capacity, 291. 
 value, 289. 
 on question of handwriting, 299. 
 science or skill, 287. 
 trade, 287. 
 NORTH CAROLINA, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 131. 
 NOTARIES, 
 
 competency of, at common law, 68w. 
 NOTICE, 
 
 of intention to examine witness, 231. 
 
 o. 
 
 OATH, 
 
 administration of, generally, 235. 
 
 to Jews, foreigners, and heathen, 11. 
 punishment for refusal to be sworn, 303. 
 religious sanction of, 11. 
 OBJECTIONS, 
 
 to competency, generally, grounds of, 171. 
 
 errors cured below, 179. 
 
 examination on voir dire, 175. 
 
 presumptions and burden of proof on, 177. 
 
 extrinsic evidence in support of, 176. 
 
 proper time to interpose, 172. 
 
 review of, 179. 
 
 trial of, 174. 
 
 waiver of, 178. 
 to questions or answers, 244. 
 
INDEX. 663 
 
 The figures refer to the sections. 
 
 OBLIGATION. See Moral Obligation. 
 
 OBLIGOR AND OBLIGEE, 
 
 competency of, at common law, 67. 
 
 OFFICERS, 
 
 competency of corporate, 79. 
 
 public, 68. 
 privilege of state secrets and communications between, 276. 
 
 OHIO, 
 
 enabling statutes of, in civil cases, 132. 
 
 ONUS PROBANDl. See Burden of Proof. 
 
 OPINIONS, 
 
 general rule excluding, 286. 
 
 limits to rule excluding, 288. 
 
 of experts, 292-300. See Experts. 
 
 non-professional witnesses, generally, 286. 
 
 as to amount of damage, 290. 
 
 effect of words or acts, 287. 
 
 purpose or intent, 287. 
 
 sanity, 291. 
 
 value, 289. 
 
 on questions of science,' 287. 
 showing previous expression of, to impeach witness, 210. 
 
 ORDER OF EXAMINATION, 
 in discretion of court, 230. 
 
 OREGON, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 138. 
 
 OWNER, 
 
 of property stolen, competency of, 47. 
 
 P. 
 
 PARDON, 
 
 removal of incompetency by, 19. 
 
 privilege to refuse to answer by, 268. 
 
 PARENT, 
 
 competency of, at common law, 69. 
 
 PARTICEPS CRIMINIS. See Accomplices. 
 
 PARTIES, 
 
 to negotiable paper, competency of, 65. 
 non-negotiable paper, competency of, 66. 
 usurious contracts, competency of, 79. 
 
564 INDEX. 
 
 The figures refer to the sections. 
 
 PARTIES TO RECORD, 
 
 competeney of defendant for co-defendant, 32-35. 
 
 plaintiff, 36. 
 in criminal cases, 28, 146-153. 
 disinterested parties, 28. 
 nominal parties, 28. 
 in courts of equity, 30. 
 plaintiff for defendant, 37. 
 unnecessary parties, 28. 
 witness made party by mistake, 41. 
 credibility of, in civil actions, 186. 
 effect on competenc)', of default, 38, 39. 
 
 nolle prosequi, 38, 39. 
 verdict, 38, 39. 
 examining adverse party, 44. 
 separate indictment, 43. 
 trial, 43. 
 how far credibility depends on relationship to, 185. 
 
 party may impeach adverse party, 215. 
 liability for costs as affecting competency of, 29. 
 misjoinder of, effect on competency, 40. 
 not competent at common law, 25. 
 one party as witness for another, 31. 
 rights of, when called by adversary, 130. 
 when entitled to fees as a witness, 306n. 
 
 See Release of Interest. 
 PARTNERS, 
 
 competency of, at common law, 70. 
 dormant partner, 70. 
 partner not sued, 70. 
 
 PART-OWNERS, 
 
 competency of, at common law, 71. 
 
 PAYEES, 
 
 of commercial paper, competency of, 65. 
 
 PAYMENT, 
 
 divestment of interest in event, by, 90. 
 of fees, to compel attendance, 302. 
 
 PENCIL AVRITING, 
 
 use of, to refresh memory, 281. 
 
 PENNSYLVANIA, 
 
 competency of accused in, 153n. 
 enabling statutes of, in civil cases, 134. 
 
 PERJURY, 
 
 false oath, when constitutes, 235. 
 
 number of witnesses requisite to convict of, 225. 
 
liS'DKX. 665 
 
 The figures refer to the sections. 
 
 PERSONAL INJURIES, 
 
 competency of husband and wife in cases of, 167. 
 
 PERSONAL PROPERTY, 
 
 competency of vendor and purchaser of, 81. 
 
 I'ERSONAL REPRESENTATIVES, 
 competency of, 72. 
 
 witnesses, in actions by or against, 130. 
 to testify on accounting, 72. 
 former, competency of, 72. 
 who deemed such in New York, 130. 
 
 PETIT JURORS, • 
 
 competency of, at common law, 62. 
 
 PHYSICIANS, 
 
 as experts, 295. 
 
 privilege of communications with, 130, 272. 
 
 PLAINTIFF, 
 
 competency of, for defendant, 37. 
 defendant for, 36. 
 POWERS, 
 
 competency of attorney in fact, 73?i. 
 
 PREJUDICE, 
 
 impairing credibility by proving, 202. 
 
 PREGNANCY, 
 
 opinions of ordinary witnesses as to, 287. 
 
 PRESUMPTIONS, 
 
 as to competency, generally, 177. 
 
 of child-witness, 1, 
 PRINCIPAL, 
 
 competency of, for agent, 73. 
 for surety, 74. 
 PRIVILEGE, 
 
 as to self-criminating testimony, etc., see Answer; Self-ckimina- 
 
 TION. 
 
 of witness in attendance at com-t, 305. 
 waiver of, 269. 
 
 PRIVILEGED COMMUNICATIONS, 
 generally, 270. 
 between counsel and client, 271. 
 
 physician and patient, 272. 
 
 clergyman and layman, 273. 
 
 husband and wife, 274. 
 to judges and arbitrators, 275. 
 state secrets, 276. 
 
566 INDEX. 
 
 The figures refer to the sections. 
 
 PRIVILEGED COMMUNICATIOI^S— Continued. 
 between officials, 276. 
 secrets of the grand jury room, 277. 
 
 petit jury room, 277. 
 to telegraph companies, 278. 
 
 agents, clerks, bankers, stewards, etc., 278. 
 
 PROCESS, 
 
 exemption from service of, while in attendance, 305. 
 
 PROMISSORY NOTES, 
 
 competency of parties to, 65, 66. 
 
 PROOF, 
 
 burden of, in questions of competency, 177. 
 of character, sustaining witness by, 223. 
 
 sufficiency of, and effect on credibility, 200- 
 competency with reference to religious belief, 12. 
 contents of lost writing, 207. 
 contradictory written statements, 205. 
 infamy, in reference to competency, 16. 
 release of interest in eveni of suit, 96. 
 See Evidence. 
 
 PROSECUTION, 
 
 impeaching witness by showing previous, for crime, 201. 
 witnesses for, corroboration of, in certain cases, 225. 
 
 PROSECUTOR, 
 
 competency of, 75. 
 
 PROSECUTRIX, 
 
 in adultery case, corroboration of, 225. 
 bastardy case, corroboration of, 225. 
 breach of promise case, corroboration of, 225. 
 divorce case, corroboration of, 225. 
 seduction case, corroboration of, 225. 
 rape case, corroboration of, 225. 
 
 PUNISHMENT, 
 
 for disobedience of a subpoena duces tecum, 304. 
 refusal of witness to attend court, 302. 
 
 by witness to be sworn or to testify, 303. 
 
 PURCHASER, 
 
 of land, competency of, 80. 
 
 personal property, competency of, 81. 
 
 PURPOSE, 
 
 opinion of ordinary witness as to, 287. 
 
INDEX. 567 
 
 The figures refer to the sections. 
 
 Q. 
 
 QUAKERS, 
 
 judicial affirmation by, 235. 
 
 QUALIFICATIONS. See Competency; Disqualification. 
 
 QUANTITY AND QUALITY, 
 
 opinions as to, 287, 288, 290. 
 
 QUESTIONS, 
 
 as to motive or intent of witness, 239. 
 hypothetical, in examination of experts, 294. 
 leading, see Leading Questions. 
 objections to, 244. 
 
 of science, skill, or trade, opinions of ordinary witnesses on, 287. 
 what may be put to witness to character, 199. 
 what proper, in examination-in-chief, 238. 
 cross-examination, 248. 
 
 R. 
 
 RAILROAD COMPANIES, 
 
 competency of officers of, 77n. 
 
 RAPE, 
 
 corroboration of prosecutrix, 225. 
 
 REBUTTAL, 
 
 examination in, 255. 
 
 RECALLING, 
 
 to explain, correct, or re-state previous testimony, 256. 
 prove new matter, 256. 
 
 RECOGNIZANCE, 
 
 compelling attendance by, 302. 
 compensation of witness under, 306ji. 
 
 RECOLLECTION, 
 
 credibility, how far dependent on, 181. 
 
 effect of imperfect, on competency, 10. 
 
 refreshing memory, see Memory. 
 
 when witness must testify from independent, 283. 
 
 RE-CROSS-EXAMINATION, 
 
 how conducted, and when proper, 254. 
 
 RE-DIRECT-EXAMINATION, 
 
 how conducted, and when proper, 253. 
 
 REFRESHING MEMORY. &e Memoranda; Memory. 
 
668 INDEX. 
 
 The figures refer to the sections. 
 
 KEFUSAL, 
 
 of witness to attend court, punishment for, 302. 
 
 be sworn or to testify, punishment for, 303. 
 answer, see Pkivilege, Self-Crimination. 
 
 RELATIONSHIP, 
 
 credibility, how far dependent on, of witness to party calling him, 
 185." 
 
 RELEASE OF INTEREST, 
 
 effect of, on competency of husband and wife, 163. 
 
 from surety, to render principal competent, 74. 
 
 necessity of seal, assent and delivery, 95. 
 
 proof of, 96. 
 
 time to execute, 86. 
 
 what is sufficient, 88. 
 
 when court may give, 85. 
 
 who may execute, as a party, 84. 
 
 RELEVANCY, 
 
 how far cross-examination must be relevant to issue, 247. 
 
 RELIGIOUS BELIEF, 
 
 ascertaining competency with regard to, 12. 
 
 defect of, when disqualifies, 11. 
 
 statutory abolition of incompetency for want of, 13. 
 
 RELIGIOUS INSTRUCTION, 
 
 what necessary for competency of child, 8. 
 
 RELIGIOUS SOCIETIES, 
 
 competency of members of, 77. 
 REPUTATION. See Character ; Impeachment. 
 
 REVERSAL OF JUDGMENT, 
 removal of incompetency by, 19. 
 
 REVIEW, 
 
 of objections to competency, 179. 
 
 RHODE ISLAND, 
 
 competency of accused persons in, 15Sn. 
 enabling statutes of, in civil cases, 135. 
 
 S. 
 SANITY, 
 
 opinions of non-professional witnesses as to, 291. 
 See Insane Persons. 
 SCIENCE, 
 
 opinions on questions of, 287. 
 
 SEAL, 
 
 necessity of, to release of interest, 95. 
 
INDEX. 569 
 
 The figures refer to the eecUona. 
 
 SECRETS OF STATE, 
 privilege of, 276. 
 
 SEDUCTION, 
 
 corroboration of prosecutrix, 225. 
 
 SELF-CRIMINATION, 
 
 waiver of privilege by accused, 269. 
 
 accomplice, 269. 
 See Answer ; Pkivilkge. 
 SENTENCE, 
 
 removal of incompetency by expiration of, 19. 
 
 SEPARATE EXAMINATION, when allowed, 237. 
 
 SERVANTS, 
 
 competency of, 77. 
 credibility of, 187. 
 
 SERVICE, 
 
 sufficiency of, to compel attendance, 302. 
 
 SHAREHOLDER, 
 
 competency of, 78. 
 
 SHERIFFS, 
 
 competency of, at common law, 68n. 
 
 SICKNESS, 
 
 when excuses non-attendance, 302. 
 
 SIGNATURE, 
 
 proof of, by experts, 299. 
 
 SCEPTICS. See Ixfidels. 
 
 SLAVES, 
 
 competency of, 23. 
 
 SOUTH CAROLINA, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 136. 
 
 SPIES, 
 
 credibility of, 189. 
 
 STATEMENT, 
 
 impeachment by proof of contradictory, see Contradiction ; Im- 
 peachment. 
 corroboration by proof of consistent, 224. 
 of the accused, under enabling acts, 153. 
 
 STATUTE, 
 
 abolition by, of incompetency for want of religious belief, 13. 
 abolishing disability on account of conviction, 20. 
 character of enabling acts in criminal cases, 147. 
 effect on privilege, of act protecting witness, 268. 
 
570 INDEX. 
 
 The figures refer to the sections. 
 
 STATUTE— Continued. 
 
 extent of defendant's right to testify in criminal cases, 148. 
 of limitations, eifect of, upon privilege, 268. 
 operation of enabling statutes, generally, 97. 
 
 in District of Columbia, 99. 
 Federal courts, 98. 
 the several States, 100-145. 
 statutory competency of defendants in criminal cases, 146-153. 
 
 SUBP(ENA, 
 
 compelling attendance by, 301. 
 punishing disobedience of, 302. 
 subpoena duces tecum, 301, 304. 
 
 SUBPCENA DUCES TECUM, 
 
 punishment for disobedience of, 304. 
 
 SUMMONS, 
 
 privilege from service of, while in attendance, 305. 
 
 SURETY, 
 
 competency of, at common law, 74. 
 modes of restoring competency of, 94. 
 on bills and notes, competency of, 65. 
 
 SURGEONS, 
 
 as experts, 295. 
 
 SURREBUTTAL, 
 
 examination in, 255. 
 
 SURVEYORS, 
 as experts, 297. 
 competency of, at common law, 68re. 
 
 T. 
 
 TELEGRAMS, 
 
 not privileged communications, 278. 
 
 TENANT, 
 
 competency of, 63. 
 
 TENNESSEE, 
 
 enabling statutes of, in civil cases, 137. 
 
 TERRITORIAL COURTS, 
 
 competency of accused in, 153n. 
 
 TESTIMONY, 
 
 application of maxim falsus in uno,falsus in omnibus, 192. 
 nejno tenetur seipsum accusare, 261. 
 competency of corroborating, 221 . 
 conflicting, ascertaining weight of, 194. 
 
INDEX. 571 
 
 The figures refer to the sections. 
 
 TESTIMONY— Continued. 
 
 fact sworn to by one's own witness may be disproved, 214. 
 impeachment of, given by unfriendly or hostile witness, 216. 
 of adverse party made one's own witness, how far it may be dis- 
 proved, 215. 
 experts, effect and value of, 300. 
 positive and negative, 193. 
 privilege as to self-cviminating, 261-269. 
 punishment for refusal to give, 302. 
 recalling witness to explain, correct, or re-state, 256. 
 rules for weighing, 191. 
 
 sufficiency and effect of, when given in corroboration, 222. 
 when testimony of one witness sufficient, 195. 
 
 whether court or witness shall decide as to tendency of, to criminate 
 witness, 266. 
 
 TEXAS, 
 
 enabling statutes of, in civil cases, 138. 
 
 TIME, 
 
 to interpose objections to competency, 173. 
 
 when memoi'anda to refresh memory must be written, 281. 
 
 TITLE, 
 
 divestment of interest in event of suit, by disclaimer of, 91. 
 
 TORT, 
 
 competency of defendant for co-defendant in action of, 34. 
 effect of default, nolle prosequi or verdict, upon competency of party 
 in action of, 39. 
 
 TRADE, 
 
 persons skilled in a, as experts, 298. 
 
 TRANSFER, 
 
 of interest in event of suit, 89. 
 
 See Release of Interest. 
 
 TRAVEL FEE. See Mileage. 
 
 TREASON. 
 
 number of witnesses necessary to convict for, 225. 
 
 TRIAL, 
 
 at what stage of, privilege as to self-criminating testimony may be 
 
 claimed, 264. 
 effect on competency of defendant in criminal cases, of separate 
 
 trials, 43. 
 of objections to competency, 174. 
 testimony of defendant in criminal cases, admissible against him in 
 
 new, 152. 
 
 TRUSTEE, 
 
572 INDEX. 
 
 The figures refer to the sections. 
 
 u. 
 
 UNDERSTANDING, 
 
 insufficient, when disqualifies, 2-8. 
 
 UNWILLING WITNESS, 
 
 party calling, may put leading questions to, 242. 
 USURIOUS CONTRACT, 
 
 competency of parties to, 79. 
 UTAH, 
 
 competency of accused in, 153n. 
 
 enabling statutes of, in civil cases, 139. 
 
 V. 
 
 VALUE, 
 
 opinions of non-professional witnesses as to, 289. 
 
 VENDOR, 
 
 of land, competency of, 80. 
 
 personal property, competency of, 81. 
 VERDICT, 
 
 effect of, on competency of party in action on contract, 38. 
 
 in tort, 39. 
 VERMONT, 
 
 competency of accused in, 153n. 
 
 enabling statutes of, in civil cases, 141. 
 VIRGINIA, 
 
 competency of accused in, 153n. 
 
 enabling statutes of, in civil cases, 142. . 
 VOCATION, 
 
 persons skilled in a, as experts, 298. 
 VOIR DIRE, 
 
 examination on the, 232. 
 
 of witness objected to as an atheist, 12. 
 
 w. 
 
 WAIVER, 
 
 by accomplice, of privilege against self-crimination, 269. 
 
 of objections to competency, 178. 
 
 privilege against self-crimination, by accused, 269. 
 
 service of subpoena, payment of fees, etc., 302. 
 WARD, 
 
 competency of, 80. 
 WARRANTOR, 
 
 competency of, 82. 
 WARRANTY, 
 
 competency of vendor with, 80. 
 
INDEX. 573 
 
 The figures refer to the sections. 
 
 WASHINGTON TERRITORY, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil oases, 142. 
 WEST VIRGINIA, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 143. 
 WIDOW, 
 
 competency of, 165. 
 WIFE, 
 
 competency of, common-law rule, 154. 
 
 as to proof of marriage, 159. 
 
 in action for abduction, or criminal conversation, 169. 
 divorce or annulment of marriage, 168. 
 cases of agency, 162. 
 
 personal injuries, 167. 
 collateral proceedings, 161. 
 criminal actions, 170. 
 prosecutions for adultery, 170. 
 bigamy, 170. 
 ■when agent of husband, 162. 
 divorced spouse, 166. 
 widow, 165. 
 efEect on competency, of consent or release of interest, 163. 
 limits and exceptions to common-law rule as to competency, 160. 
 not competent against husband, 156. 
 for husband, 157. 
 to prove non-access, 158. 
 of accomplice, or state's witness, 170. 
 
 party jointly indicted, competency of, 170. 
 person injured by crime, competency of, 170. 
 scope and extent of common-law rule as to competency, 155. 
 WILLS, 
 
 competency of executor, to sustain, 72. 
 who may testify on probate of, 130. 
 
 proceedings to contest, 130. 
 WISCONSIN, 
 
 competency of accused persons in, 153n. 
 enabling statutes of, in civil cases, 144. 
 
 WRITING, 
 
 proving contents of lost, containing statement contradictory to wit- 
 ness' testimony, 207. 
 when may be referred to, to refresh witness' memory, 280. 
 See Memoranda; Memory. 
 WYOMING, 
 
 competency of accused persons in, ISSn. 
 enabling statutes of, in civil cases, 145.